Fitch v. Elko County

By the Court, Belknap, J.: Under authority conferred by the twenty-ninth section of the “act to provide revenue for the support of the government of the State of Nevada,” approved March 9, 1865, the district attorney of the County of Elko, on the 30th day of December, 1870, commenced actions in the name of the State of Nevada for the recovery of delinquent taxes assessed against certain real estate and improvements situate in said county, and against the owners thereof. Thereafter judgments were entered against the defendants and executions issued, and on the sixth day of April succeeding the real estate was subjected to sale in the manner provided by statute for the sale of property for delinquent taxes (Stats. 1866, 161), and was bought in by the county treasurer in trust for the State and county. So the district court finds; and by that finding we are bound, as this case is presented. The appellant, the sheriff of Elko County during the period embraced by these transactions, brought suit in the court below for the recovery of his fees in these tax suits and sales, amounting to $6998 40. Erom a judgment for defendant and an order denying a motion for a new trial this appeal is taken. The act of 1865 in its original form and as it stood at the commencement of these suits authorized and directed the district attorney to commence them, and provided that “no fees or costs should be paid to any officer unless the same [274] be collected from the defendant.” This act was amended March 1, 1871. The amended section re-enacts the direction to district attorneys to bring suits fox delinquent taxes, but provides that “before commencing any suit for the collection of delinquent taxes the district attorney shall submit to the board of county commissioners, at a meeting of said board to be held for that purpose on the second Monday in December in each year, the delinquent list showing the several amounts of taxes then delinquent, and from whom due; and said board of commissioners shall then, or at such time thereafter as they may deem proper, direct suits to be commenced for the collection of such sums then delinquent as they may in their judgment deem expedient; and no suit for the collection of delinquent taxes shall be commenced except by the direction of said board;, * * * * * * * * * * * * * And the act was further amended by providing that when property sold for taxes is purchased by the county, all fees and costs properly charged or taxed against such property shall be allowed by the board of county commissioners and paid out of the general fund of the county. The amendment of 1871 obviously contemplates the payment of fees out of the county treasury in eases only in which suits are brought by direction of the commissioners. The language employed completely demonstrates that object, and it is a fundamental maxim in the interpretation of statutes that when the object of the legislature is plain and the language unequivocal effect should be given to the intent of the law-makers. We are clearly of opinion that the amendment did not contemplate such a case as this, in which the tax suits were commenced without the authority of the county commissioners. But disregarding the requirements that these suits be brought with the sanction of the commissioners the plaintiff can not recover. It is a rule of statutory construction that new statutes apply to new cases unless the contrary expressly appears: therefore we must presume that had the legislature [275] intended to have given a retroactive effect to the amendment, that intention would have been unmistakably expressed. Upon this principle the case of Gilmore v. Shuter, 2 Lev. 227, was decided. The statute of frauds (29 Car. II) provided “ that after the 24th-of June, 1677, no action shall be brought upon any promise in consideration of marriage without a writing testifying the same;” and an action was brought upon a verbal promise made.before that date. It was held that the action lay and that the statute extended only to promises made after the 24th of June. In Moon v. Durden, 2 Exch. 22, under a statute-which declared “that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be-won upon a wager,” the court held that the statute should not be so construed as to defeat an action brought before its passage. In these cases the inquiry of the courts was only to the intention of the legislature. Being enactments of the British parliament in the exercise of its unlimited authority no judicial question of their validity could arise. This rule of construction has been constantly followed by the courts of this country. Said Monell, J., in Trist v. Cabanas, 18 Abbott’s Pr. R. 145: “ When the statute is silent it must be presumed that it was the intention to limit its operation to the period of time when it took effect, and to fasten its provisions only upon such proceedings as might be commenced thereafter.” See also, Dash v. Van Kleeck, 7 Johns. 479; Hastings v. Lane, 3 Shep. 134; Garrett v. Wiggins, 1 Scam. 335; Perkins v. Perkins, 1 Conn. 558; Prince v. United States, 2 Gall. 204. The injustice of a retroactive construction of this amendment is illustrated by the fact that proceedings for the sale of real estate for delinquent taxes for the fiscal year 1870 might have been and in some cases possibly were concluded before the amendment became a law. No provision in such case is made to pay the officer’s fees out of the general fund of the county. So unfair a discrimination can not be attributed to the legislature. [276] Whether this enactment be considered by the rule that statutes are to operate in futwro unless the contrary plainly appears, or that the intent of the legislature when fairly manifested must govern — in either case the right of the plaintiff to recover must be denied. Judgment affirmed.