State ex rel. Matthews v. Olson

Gileillan, C. J. The court below seems to have refused the alternative writ of mandamus, in part at least, on the decision of this [3] court in Corbin v. Morrow, 46 Minn. 522, (49 N. W. 201.) The proceeding in that case, however, was under another section of the statute 1878, G-. S. ch. 11, § 97, as amended by Laws 1881, ch. 10, § 19, giving a remedy, by application to the county auditor, where the tax sale under which the applicant holds his certificate, or his assignment from the state, has been declared void by judgment of the court; and we held it was not enough, to entitle one to the remedy, that the tax sale was in fact void, but that it must have been adjudged void as to the specific tract or tracts as to which refundment of the amount paid by him is sought. This proceeding is under section 148, added by section 21 of the law of 1881, which provides a remedy by refundment in a case where, though the sale has not been adjudged void as to the specific tract or tracts, it is in fact void, within the meaning of any decision of this court. Under that section the applicant petitions the county commissioners, setting forth the facts claimed to invalidate the certificate within the meaning of such decision, and “said commissioners shall inquire into the truth of the facts alleged in said petition and if they are satisfied that all the facts affecting the case are fully and fairly stated they shall so certify to the state auditor and the latter officer if he is satisfied upon consultation with the attorney general that the facts stated render the certificate void within the principle of any decision of the supreme court, shall authorize the refunding of the amount paid for said certificate with interest,” etc. The decision in the case referred to has no application to this case, further than this: that the petition must show a right to have the money refunded under the section. The respondent claims section 148 is void, under the constitution, on two grounds, only one of which, to wit, that the subject is not expressed in the title, we will mention, — there being no basis for either of them. The act of 1881, being entitled “An act to amend chapter 11,” not only expresses the general subject of taxation therein treated, but all the minor subjects connected with and relating to it, treated in that chapter, including the subject of refundment upon invalid tax sales. The respondents also insist the appellants’ remedy is barred by the statute of limitations. There is no statute applicable to it, ex [4] cept that applicable to actions; and, if six years is taken as the period, it has not run. The time limited does not begin to run before a cause of action accrues, and it is less than six years since the remedy accrued to appellants. When the county commissioners, upon a proper application, under section 148, are satisfied that all the facts affecting the case are fully and fairly stated, there remains nothing for them to do but the ministerial act of signing the certificate to the state auditor. , That duty may be enforced by mandamus. We think the petition to the county commissioners should cover every fact that may affect the petitioner’s right to have the taxes refunded. He and the board do not occupy adversary positions; he setting forth only tbe facts that make for his claim, and they the facts that make against it. He must lay the whole case before them. “All the facts affecting the case” must be “fully and fairly stated.” Laws 1885, ch. 2, approved March 9, 1885, amending: 1878, Gr. S. ch. 11, § 101, enacts (section 21) that “if any lands having valuable timber thereon have been or may hereafter be sold under the provisions of this section and an amount of timber equal in value to the amount paid by the purchaser under this section shall have been removed or sold by said purchaser or his assignee, then said purchaser or assignee shall not be entitled to any refundment from the county, if the title obtained from the state proves to be invalid for any reason except that the taxes had been paid.” The appellants’ purchase was under section 101, and, as we understand from the petition, subsequent to the above amendment; so that its provisions apply to their case. The petition ought to have negatived the facts in the amendment affecting the right to refundment. As it does not, nor allude to such matters, it cannot be said all the facts affecting the case are fully and fairly stated. Order affirmed. Buck, J., did not sit. (Opinion published, 59 N. W. 634.)