With all due respect to the views expressed in the majority opinion, I am unable to concur in the conclusion reached.
In October, 1923, appellant became the owner, through foreclosure and issuance of sheriff's deed, of certain real property formerly owned by one Davidson. Prior to said foreclosure proceedings, to wit, on the second Monday of January, 1920, Davidson was in possession of and claimed ownership to a large number of sheep, valued at $15,000. Davidson resided in Minidoka county, which was the home county of the sheep. The sheep were grazed in different counties but were assessed in the home county. The tax levied on the sheep was not paid and on December 5, 1920, the board of county commissioners duly ordered that such tax be extended on the real property roll to become a lien against the real property of Davidson, mortgaged to appellant. The question here presented is whether or not the tax levied against the sheep and claimed as a lien against the real property is a superior lien to that of the mortgage thereon. The tax being a personal property tax levied on migratory livestock, it is the contention of appellant that there is no authority to enter such tax upon the real property roll, and that the lien of such tax, if any there be, is inferior to the mortgage lien; and appellant further contends *Page 55 that even if migratory livestock taxes can be extended on the real property roll, all remedies by distraint and sale of the property assessed must have been previously exhausted. Neither of these contentions, to my mind, is tenable. The following statutory provisions, in effect at the time of the assessment and levy, are controlling:
(C. S., sec. 3096.) "All property within the jurisdiction of this state, not expressly exempted, is subject to assessment and taxation."
(C. S., sec. 3098.) "All taxes levied on personal property shall be a lien upon the real property of the owner, . . . . which lien or liens attach as of the second Monday of January in the year in which such taxes are levied, and shall only be discharged by the payment, cancellation or rebate of the taxes as provided in this chapter."
(C. S., sec. 3264.) "All personal property whereon the tax is not a lien on real property of sufficient value, in the judgment of the assessor, to insure the collection of such tax, shall be entered in a separate book, to be known as the personal property assessment-roll. . . . . "
(C. S., sec. 3287.) "All migratory livestock shall be entered upon the personal property assessment-roll only, even though the taxes thereon be a lien on real property, and in all cases where the tax on migratory livestock is not a lien upon real property the lien shall exist, however, upon the migratory livestock until the taxes thereon have been paid . . . ."
If, in the judgment of the assessor, there is sufficient real property out of which the taxes assessed against personal property can be realized, and the tax on the personal property is not paid, the same may be, by order of the board of county commissioners, entered upon the real property roll and becomes a lien against the real property, under C. S., sec. 3098 which can only be discharged by payment, cancelation or rebate.
(C. S., sec. 3097.) "All real and personal property subject to assessment and taxation must be assessed at its full cash value for taxation for state, county, city, town, village, *Page 56 school district and other purposes, under the provisions of this chapter, with reference to its value at 12 o'clock meridian, on the second Monday of January in the year in which such taxes are levied, and all taxes levied under the provisions of this chapter, shall be a lien upon the property assessed, and a lien upon any other property of the ownerthereof, . . . . which several liens attach as of the second Monday in January in said year, and shall only be discharged by the payment, cancellation or rebate of the taxes as provided in this chapter."
(C. S., sec. 3304.) "All taxes upon personal property entered upon the personal property assessment-roll, where the owners of such personal property are also the owners of real property in the county, which have not been paid at the time of the annual meeting of the board of county commissioners, as a board of equalization, in December and which said board finds to be a lien upon the real property shall be certified to the county auditor and the tax collector and so noted opposite the entry of such property upon the personal property assessment-roll, and thereupon such taxes must be entered by the tax collector upon the real property assessment-roll against the real property subject to such lien in the columns provided for that purpose and must be charged to the tax collector by the county auditor in his account with the tax collector, as other taxes appearing upon the real property assessment-roll. The tax col. lector shall immediately notify the owner of any such real property by mail of any taxes on the personal property which have been so entered."
It is clear to my mind that a fair and reasonable construction of the foregoing statutes can lead but to one conclusion, that all taxes upon personal property, whether migratory livestock or not, if not paid or collected, may be transferred to the real property roll and when so transferred become a lien against any and all real property of the owner of the personal property, and such lien is prior to any created by the act of the owner of the real property. *Page 57
C. S., sec. 3212, provides:
"Each county in this state is liable to the state for the full amount of all state taxes apportioned to such county by the state board of equalization, and such taxes must be paid to the state in full, without deductions, before the second Monday in July in the succeeding year. All state taxes must be collected and paid into the county treasury and apportioned to the state fund. If, on account of uncollected taxes, there is not sufficient money in the county treasury to the credit of the state fund to pay such state taxes in full within the time prescribed by this chapter when such taxes must be paid, the same must be paid within the time prescribed therefor out of any county money in the hands of the county treasurer, and when so paid shall be charged to the state fund, but no transfer of money from any county fund to the state fund shall be made upon the books of the county auditor to county treasurer on account of any such temporary deficiency in the state fund."
C. S., sec. 3211, reads as follows:
"The board of county commissioners in each county in this state must meet on the second Monday of September in each year to ascertain the tax rate necessary to be levied on each $100 of the valuation of all the taxable property in the county for such year in order to raise the amount of state taxes apportioned to such county by the state board of equalization, and, likewise, the tax rate necessary to be levied for each of the several funds in order to meet the expenditures of such funds for the said year, and must, on or before the third Monday in September in said year, determine such tax rates and levy the same, with such percentage of increase as in the judgment of the said board may be necessary to counterbalance taxes unpaid on the second Monday of July in the succeeding year . . . . "
It will be observed from the two foregoing sections that whether taxes be collected or not, each county is liable to the state for its proportionate share thereof and must remit the same in full, and, in the event they remain unpaid the various boards of county commissioners must increase the levies to an amount sufficient to counterbalance the *Page 58 taxes unpaid. Thus, if the land conveyed to appellant by sheriff's deed subsequent to the levy and extension upon the real property roll of the migratory livestock tax, a portion of which belonged to the state, be not held for the payment of the same, the taxpayers within the county, by increased levy, must make up such deficiency. I am not persuaded that it was the intention of the legislature to make a contractual obligation of the kind involved prior to the lien for taxes and in this way impose an additional burden upon the taxpayers.
Among the decisions in support of my views in this matter I cite the following: Union Cent. Life Ins. Co. v. Black,67 Utah, 268, 47 A.L.R. 372, 247 P. 486; California Loan Trust Co. v. Weis, 118 Cal. 489, 50 P. 697; Tate v. MadisonCounty, 163 Iowa, 170, 143 N.W. 492; Tong v. Maher, 45 Mont. 142,122 P. 279; Porter v. Yakima County, 77 Wash. 299,137 P. 466; People v. Evans, 262 Ill. 235, 104 N.E. 646;Brownell Improvement Co. v. Nixon, 48 Ind. App. 195, 92 N. K. 693, 95 N.E. 585; Morey Engineering Construction Co. v. St.Louis Artificial Ice Rink Co., 242 Mo. 241, Ann. Cas. 1913C, 1200, 146 S.W. 1142, 40 L.R.A., N.S., 119; Jersey City v.Montville Tp., 84 N.J.L. 43, 85 A. 838; Delahunt v. OklahomaCounty, 226 Fed. 31, 141 C.C.A. 139.