Delinquent Tax-List v. Territory of Arizona

BAKER, C. J. The appeal is taken from a judgment for delinquent taxes for the years 1889 and 1891. The objectors, Maish and Driscoll, urge a number of reasons why the taxes are invalid. They relate mostly to the manner of assessing the taxes, preparing and returning the delinquent list, and similar questions; all of which we deem mere irregularities, and covered by paragraph 2688 of the Revised Statutes, which was in force at the time of judgment. As to all of these objections we are content with the reasons given in the case of Atlantic and Pacific R. R. Co. v. Yavapai County, 3 Ariz. 117, 21 Pac. 768, and therefore overrule them. There is one objection, however, which goes to the validity of the tax levy, and this we will notice. Some of the property listed to the objectors consists of "unconfirmed Mexican land grants,” and as to these it is contended that the tax levy is void, because such "grants” belong to the public domain until confirmed by proper authority, and are not subject to local taxation. If we concede this, we still ought to decide adversely to the appeal. There was other property, real and personal, listed to the appellants that year, the taxes upon which were certainly valid. The appellants neither paid such taxes nor offered to pay them. It is certainly not just and equitable that a taxpayer be suffered to retain taxes which he ought to pay, and at the same time be heard to complain of taxes which he claims he ought not to pay. He must first pay or offer to pay the taxes which are justly due the government. This the appellants did not do. Railroad Co. v. Patterson, 10 Mont. 90, 24 Pac. 704. Besides, we are inclined to view the levy in this [188] case as being upon the equitable claim or possessory right of the objectors in the “grants,” and not upon the fee. If this is all that is taxed,—“the possessory right or claim,”—the tax is valid, though the land b?long to the public domain. Rev. Stats., par. 2631; Colorado County v. Commissioners, 95 U. S. 265; People v. Donnelly, 58 Cal. 144. It is a part of appellants’ argument that the “grants” are a portion of the public domain until segregated and confirmed by proper authority, which has not been done. If this be so, an assessment of taxes to individuals, as follows: “Land and improvements. San Ignacio La Canoa, private land claim,”—may be construed as an assessment upon the equitable claim or “possessory claim” thereto, and not as an assessment upon the fee or land itself. Hale & Norcross M. Co. v. Storey County, 1 Nev. 106. Judgment affirmed. Hawkins, J., concurs.