Territory of Arizona v. Delinquent Tax List

PORTER, J. This is one of the cases wherein the Atlantic & Pacific Railroad resists the payment of the taxes for the year 1887 in the counties of Mojave, Yavapai, and Apache. There are questions common to each of those counties, but an independent one applies alone to the county of Apache, which question arises as to the jurisdiction of the court in which judgment was obtained against the railroad. A special appearance was made to the jurisdiction, and the contention made that, it being a special term of the court, there was no authority to try the tax cases. The complaint shows its being filed at the special April term, 1888. The judgment was had at the special term. The notice of the time and place of sale of property in the delinquent list fixes the date of the application to the district court for a judgment against the same upon the third Monday in April, A. D. 1888, and that the sale will take place on the Monday succeeding said third Monday in April, A. D. 1888. The regular term of the district court to be held in the county of Apache commences on the first Monday in July of each year. Paragraph 628, Revised Statutes, pro [76] vides that “special terms of the district courts may beheld in any county of this territory for the trial of civil and criminal causes, and the transaction of civil and criminal business, generally, or of either, whenever in the judgment of the presiding judge of said court public justice demands it. Such special terms shall be held upon notice for that purpose, to be published in some newspaper printed in the county where the court is to be held, if there be a newspaper published in said county, and if no paper is published in said county, then by notice published in some newspaper published in the district; said notice to be given by the clerk upon the order of the judge.” Chapter 7 of the Revenue Law provides for the publication of the delinquent list, when the same must be published, and what it must contain, and it then prescribes the notice to be given in the following language: ‘ ‘ The tax collector must append and publish, with the delinquent list, a notice that he will apply to the district court held in and for said county, at the next ensuing term thereof, for judgment against the lands and real estate and personal property described in said list, for said taxes, costs, and interest, and for an order to sell the same for the satisfaction thereof; and shall also give notice that on the Monday next succeeding the day fixed by law for the commencement of such term of the district court all the lands and real estate and personal property, for the sale of which an order shall be made, will be exposed to public sale at the building where the district court is held in said county, for the amount of tases, interest, and costs due thereon; and the advertisement published according to the provisions of this section, shall be deemed to be sufficient notice,” etc. See Rev. Stats. Ariz., p. 479, par. 2685. On publication and advertisement, and the filing of a complaint, the district court acquires jurisdiction over the property described in the delinquent list. But at what term of the court does this jurisdiction obtain? This is a special proceeding, and should be strictly construed. The case of Brown v. Hogle, 30 Ill. 119, cited by counsel, was where the collector was required to apply for judgment at the June term. He applied at July term. The court says: “The term is fixed by law, and the design is that all persons owning [77] lands in the county, looking to the law for their rights, may know, certainly when the application will be made, and make such defense as the law entitles them to make, and show cause, if they can, why judgment should not be rendered against their lands. If this rested in the discretion of the collector, and the people interested are to derive their knowledge of the term at which the application will be made solely from the collector’s notice, much embarrassment and loss might occur, as those notices are not so widely diffused as the law itself. ’ ’ And further on, quoting with approval a former decision of the same court, the learned judge says: “It is a sound and inflexible rule of the law that when special proceedings are authorized by statute, by which the estate of one man may be divested and transferred to another, every material provision of the statute must be complied with. The owner has a right to insist upon a strict performance qf all the material requirements, especially of these designed for his security, and the non-observance of which may operate to his prejudice. See Brown v. Hogle, 30 Ill. 119. See, also, Marsh v. Chestnut, 14 Ill. 224; Spellman v. Curtenius, 12 Ill. 409. We must conclude that the term “fixed by law” must be the regular term of court as fixed by statute. Special terms are allowed to be held for the trial of civil and criminal causes, and the transaction of civil and criminal business generally. This is certainly not to embrace special proceedings requiring a fixedness of time. The time of sale is on Monday next succeeding the day fixed by law for the commencement of such term. All the tax-payers are presumed to know their regular terms of courts. The holdings of special terms are in the discretion of the judge. A tax-payer, knowing such time, rests easily, believing at the proper time he can come and make his defense. He may temporarily leave the territory, and, while resting in fancied security, an order is made for a special term of court, and he divested of his property without a hearing. It is not thus in other actions, for there the resident litigant has to be personally served with process, and, besides publication in non-resident cases, the summons and complaint have to be mailed to the defendant. [78] Conceding, though, that “the ensuing term” meant the special April term of this district court, the record must affirmatively show the authority by which the special term was to be held; it being a special proceeding, and therefore no intendment being in its favor. The record does not disclose that the notice to be given by the clerk upon the order of the judge was so given. It commences: “April 16, 1888, present, presiding,” etc. The supreme court of Colorado announces that if the judge of that district did, by order, fix a term of the district court to be begun and held for the county of Fremont on the sixteenth day of November, 1876, this fact should affirmatively appear by the record.” Clelland v. People, 4 Colo. 244. And also in Dunn v. State, 2 Ark. 254, 35 Am. Dec. 54, it says: “And the most important circumstance upon which the right of power of the judge' to order a special term of the circuit court is made to depend cannot judicially appear otherwise than by being made of record, it being a matter altogether in pais.” . . . The judgment for the plaintiff in the county of Apache, as to the defendant the Atlantic & Pacific Railroad Company, is reversed. Barnes, J., concurs.