Finnegan v. Gronerud

BUCK, J. Each party claims title to a quarter section of land in Kandiyohi county, and it is conceded that the plaintiff has a title derived from the United States government, while the defendants’ claim rests upon an alleged tax title, and its validity turns upon the sufficiency of the designation of a newspaper by the board of county commissioners of the above-named county, pursuant to the requirements of Laws 1874, c. 1, § 112. This section requires that the county auditor shall cause a notice of the list of taxes on real estate remaining delinquent on the first day of June to be published once in each of three consecutive weeks in some newspaper of general circulation published at the county seat, and “the newspaper in which such publication shall be made shall be designated by resolution of the board of county commissioners of the county in which the taxes are levied, at their annuál meeting in January, or at a meeting of said board to be held on the third Monday of June in each year; a copy of which resolution, certified by the county auditor, shall be filed in the office of the clerk of the court.” While the board of county commissioners of Kandiyohi county were in session at their annual meeting in the month of January, 1874, they did not during that month designate the newspaper in which the delinquent list should be published, nor did they'hold any meeting or so designate it on the third Monday of June following. The board commenced its annual session January 6, 1874, held five sessions, adjourning from day to day, then adjourned to March 18, then to March 19, then to June 19, and then to June 20, 1874, when they passed a resolution designating a newspaper in which the delinquent tax list should be published. The third Monday of June of that year was the 15th day of that month. It is a primary duty resting upon each citizen to pay his taxes promptly, for the purpose of carrying on the governmental machinery. [55] Laws could not be made effective unless a tax was imposed whereby means are supplied for this purpose. But in the exercise of the taxing power the method or remedy laid down by the statute must be strictly and fairly pursued, or the proceedings will be void. However much the individual may enjoy the benefits of a general taxation, to which he must or should contribute his proportion, yet such taxation is an enforced one; and, like other statutory proceedings where a person’s property is to be taken for the public use, the proceeding should conform to the statutory requirements. These are general rules laid down in many of the law books. We also quote from the opinion of Mr. Justice Field in the case of French v. Edwards, 13 Wall. 506, bearing upon this subject, as follows:2 “When the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory, but mandatory. They must be followed, or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise.” Usually the amount bid at a tax sale is very small, compared with the actual value of the property sold, and it seems no more than the requirements of justice that all tax proceedings which are in derogation of the common law should show a strict compliance with the statutory requirements. A law may be both directory and mandatory. State v. Smith, 22 Minn. 218. Its express provisions may point out the time, place, and manner in which certain acts should be done, and thus, to that extent, be directory; but, when those acts would operate to deprive a man of his land by an ex parte adversary proceeding, they should also be construed as mandatory. Now, let us consider the facts in the case before us, and see whether the proceedings of the board of county commissioners were regular, and in compliance with the requirements of the tax law of 1874. We do not challenge the right of the board to adjourn in many cases from day to day, or for a longer time, and at such adjourned meeting transact its general business, nor do we contend that the board may not in many instances transact certain kinds of business at a meeting which is not a regular or a special meeting, but simply one held without notice, where all of the members are present and [56] take part in the transaction of the official business. The meeting of the board of county commissioners was not held at any time fixed by law. It adjourned to a time beyond the time expressly fixed by the statute, viz. the third Monday in June, when by law it was required to designate the newspaper in which the list of taxes on real estate remaining delinquent should be published, if such designation had not then been previously made. In the case of Banning v. McManus, 51 Minn. 289, 53 N. W. 635, this court held that there was a limitation necessarily implied to the right of adjourning over by a board of county commissioners, and that a session could not be extended beyond the commencement of the next session fixed by law. The next session fixed by law after the regular session in January was the third Monday of June, or, as we have stated, the 15th day of June, of that year. This was not the time fixed by law for the transaction of general or special business, except the very business of designating the newspaper in which the list of delinquent taxes should be published. The fact that the board had ample time to designate such newspaper at its meeting in January leads to the conclusion that the legislature intended that the third Monday in June must be regarded as the utmost limit of time fixed by law, in which the board was authorized to act, and that its duty to do so at or before that time was mandatory, and that its failure in such respect rendered its act, and the publication of the delinquent list, invalid, for want of jurisdiction. The statute uses the word “shall” designate the newspaper at either one of the two meetings. This language is not directory, but mandatory, and a failure to obey it is not a mere irregularity, but a proceeding involving property rights; and the legislature intended it to be obeyed, or it would not have enacted such a law. If the board of county commissioners could willfully or negligently postpone this duty so enjoined by law for a period of three days, as in this case, beyond the time fixed by law, it could postpone it 'for a period of three months, or for such other time as it saw fit. A negation of authority to do an act at some other time need not exist in words. It may arise by implication, where all of the provisions of the act make it manifest that the legislature intends to limit the power of performance of duty to the particular time. 1 Blackwell, Tax Titles, § 309. [57] The hoard of county commissioners cannot designate a newspaper, and the time when it shall publish the list of delinquent taxes, at its pleasure. The law contemplates uniformity in the time of such publication of- such list, as to the time of doing it, although uniformity may not be absolutely essential in this respect. The publication in a properly designated newspaper is for the benefit of the taxpayer, so that he can see if any such tax proceedings have been commenced. It will not do to say his eternal vigilance in watching for such tax proceeding from January to January is the price of his saving his land from a tax sale. The delay of the board was entirely inexcusable and unjustifiable, and, as it unquestionably appears that the board of county commissioners designated the newspaper in which the list of delinquent taxes should be published at a time beyond that limited and fixed by the statute for such purpose, we hold that the tax sale was void, and that respondents have not any title to the premises in question by reason of such tax sale. The law of 1874 in regard to the time and manner of designating the publication of the list of delinquent taxes has been amended in some respects. If the board of county commissioners now fail to designate the newspaper in which such delinquent list shall be published at their annual meeting in January, then it shall be designated by the county auditor; thus limiting the power of the board to thus designate the newspaper, unless it is done at the time specified, and conferring this power, in case of such failure, upon another official, viz. the county auditor. The judgment of the trial court is therefore reversed, and the plaintiff adjudged to have title to the premises in the complaint described.3 Footnotes [2] At page 511. [3] But see supplemental opinion, infra, page 61.