In re the Proceeding's to Obtain Judgment for Delinquent Real Estate Taxes for the Year 1920

Quinn, J. This is a proceeding to enforce the payment of delinquent taxes on certain real estate in Ramsey county for the year 1920. The valuation upon which the taxes were based was far in excess of the actual value of the property assessed. The trial court held adversely to the landowners, and from an order denying their motions for a new trial, they appeal. In five of the cases the actual value of the property was agreed upon. In the other three evidence was received fixing the value. The amount at which the property of the appellants was assessed, as well as the actual value thereof, is practically conceded. The amount of the overvaluation on the several properties, ranges from $6,300 to over $179,000. The first half of the taxes in each case was paid prior to June 1,1921, without protest. The second half became delinquent. Proceedings were commenced to enforce payment, and answers were interposed by the property owners, setting up the excessive valuation upon which the taxes were based. It is contended on behalf of the county that the payment of the first half of a tax, made without protest, constitutes an acquiescence in the levy and precludes the owner of the property from thereafter asserting that the assessed valuation upon which the tax was based, is excessive. This presents a question of law, which is the only matter here for determination. The statute provides, in effect, that a penalty of 10 per cent shall be charged upon all unpaid real estate taxes on June first of each year, on the current list. Provided that one-half thereof may be' paid on or before May 31, and no penalty shall attach; and thereupon the remaining half may be paid at any time prior to November first following, and no penalty shall attach thereto. That each tract against which taxes or any part thereof remain unpaid on the first Monday in January of each year, shall be deemed delinquent, and thereupon an additional penalty of 5 per cent on the amount of the [260] original tax remaining unpaid shall be charged. That on or before the first day of February in each year the county auditor shall file with the clerk of the district court, a list of delinquent taxes, which shall have the force and effect of the filing of a complaint in an action by the county to enforce the payment of taxes. That within five days thereafter, the clerk shall return a copy thereof to- the auditor, with notice prepared and signed by him, and attached thereto, requiring the owners to file with the clerk their answers setting forth in concise language their objections to the taxes, and that, in default thereof, judgment will be entered against such land for taxes, penalties, interest and costs. G. S. 1913, §§ 2092 to 2095. The statute also provides for the publication of such notice and list, and that the owner, within 20 days from the last publication, file his answer with the clerk. G. S. 1913, §§ 2098 and 2104. This procedure was complied with. Prior to the year 1902, real estate taxes were payable on or before June first of each year, and if not paid in full by that date a penalty attached. By chapter 2, p. 1, Laws of 1902, the proviso was added to the statute, permitting the payment to be made in two instal-ments. As we' read the statute, it was not the purpose of the proviso to lessen the rights of the taxpayer in litigating the correctness of his taxes or in enforcing his remedy, but rather to make the payment thereof less burdensome. The overvaluation of the properties in the instant case emphasizes the wisdom of such a statute. The landowners paid the first half of the taxes but refused to pay the balance. At the first opportunity they filed their answers setting forth their defense. The facts pleaded go directly to the entire tax and the proofs sustain the allegations of the pleadings. Under such circumstances the owners were entitled to judgment upon the facts as pleaded and proven. A tax levied on an overvaluation of property, is invalid to the extent of the amount thereof based upon the excessive valuation, and, under the statute, the owner is entitled to have the excessive part of such tax off-set against the unpaid portion of the original tax. We do not have for consideration a case to recover taxes voluntarily paid. For the purpose of payment, the statute has separated such [261] taxes into' two parts, but leaves the way open for the owner to contest the validity of the tax and, if a wrong has been done, to have it corrected. Such was the purpose of the statute. Any other construction would be unseemly. To provide for the litigation of the entire matter and deny the owner the right to have the illegal part of the tax offset against the unpaid portion of the original tax would render the whole proceeding a mere farce. Such was not the intention of the statute. The proceeding was commenced by respondent when the delinquent list was filed with the clerk. The statute gives to such list when so filed the force and effect of a complaint in an action by the county. By the service of the notice issued by the clerk, the county invites the landowner to come into court and contest his objections to the tax. Why all this if the payment of the first half of the tax, of which the county has a complete record in the office of the county treasurer, is to be treated as an account stated, as contended for by respondent, sufficient to preclude from questioning the validity of the tax? We are of the opinion and hold that where a tax has been levied upon real estate, based upon an overvaluation of the property, the first half of the tax paid without protest, the second half allowed to become delinquent, and the amount of the excessive tax determined in a proceeding under the statute, the landowner has a right to have the illegal part of the tax offset against the portion of the tax remaining unpaid. How the excess tax should be treated in case it should exceed the part of the original tax remaining unpaid, we do not decide, that question not being here involved. Reversed.