Hamer v. Weber County

Smith, J.: This was a proceeding in mandamus, commenced by the plaintiff in the court below against the defendants, Weber county and Joseph P. Ledwidge, who was at the time of the filing of the complaint, and still is, the duly elected, qualified, and acting county clerk of Weber county, Utah. The plaintiff was, at all times mentioned, tax collector of Weber county. The petition alleges, in substance, that on — 7 — the 18th, 19th, and 20th days of December the plaintiff, in. accordance with the law, offered for sale at public auction*, for delinquent taxes, sundry pieces and parcels of rea® estate; and that at such sale no person bid for the same- or any part thereof; and that the plaintiff struck off the-property offered for sale to the probate judge of Weber" county, and issued certificates of sale in due form; and3 afterwards, on the 26th day of December, 1893, plaintiff' tendered to defendant Joseph P. Ledwidge, as clerk of said county, such «certificates of sale, numbering in the aggregate 905, each representing a different piece or parcel of real estate, and then and there demanded of the clerk of said county credit upon his account for the amount of taxes and costs due thereon, and represented by such certificates of sale to the amount of $15,853.57. That the-defendant, as such clerk, then and there accepted the certificates of sale, but then and there refused, and still refuses, to credit the plaintiff with the amount of taxes due-, thereon and the costs to the date of sale, or any part, thereof. The prayer is that the defendant Ledwidge be-required to credit the plaintiff with the sum of $15,853.57-Defendant answered, and denied that any sum or anything at all was due the plaintiff on the said tax certificates or otherwise by reason of the taxes or costs due thereon to the date of the sale, or for any reason at all. The answer then affirmatively alleges that no claim for the amount of the taxes and costs had been presented by the plaintiff to the county court of Weber county for allowance; and, secondly, that the tax sale certificates, tendered to the defendant Ledwidge each contained not. less than 12 folios of matter, and it is alleged that the certificates should not contain to exceed two folios each. For a third defense, it is alleged that the plaintiff, as collector, failed to seek out or levy upon, all the taxable property of the owners of said real estate in said. — 8 — certificates described, or any of them, to satisfy and pay the taxes mentioned in said certificates, or any of them. For a fourth defense, it is alleged that the county court, on October 17, 1893, fixed the compensation of the collector (plaintiff) at $3,000 for the year 1893. After the case was thus at issue, findings of fact were agreed and stipulated by the respective parties. The findings of fact, without setting them out at length, show, in substance, that the plaintiff made 905 sales of real estate for delinquent taxes, for which there were no bidders, and they were struck off to the probate judge; that the amount of taxes represented by such sales are as follows: Territorial taxes, $4,892.10; county taxes, $3,913.68; school district taxes, $806.23. It was also found that he paid, for publishing the delinquent list, $452.50, and, for filing 905 tax sale certificates with the county recorder, $452.50. The tax collector claimed $5,336.56 for costs and fees for making such sales. These costs are claimed to amount to $7 in each case, including the cost of publication and filing with the recorder. Six dollars of the charge consists of 25 cents per folio for each certificate of sale and 25 cents per folio for each duplicate certificate of sale, there being 12 folios in each. It was also found that the certificates contained 12 folios each. It was also found that the collector has presented no claim to the county court for his fees or costs, or the amount of taxes represented by such certificates; that no part of it has ever-been allowed by the county court. It is further found that the compensation of the county collector was fixed for the year at -the sum of $3,000; and, in addition thereto, he was to receive all costs and fees allowed him by law,- including costs and fees allowed him by law on tax sales, and for making tax-sale certificates made to the probate judge. It was further found that 65 out of the 905 tax sales which were made to the probate judge were sales of — 9 — property belonging to persons who had personal property assessed to them. There is no finding as to whether these parties owned any personal property at the time the taxes became delinquent or not. The amount of costs represented by these 65 certificates is $444.25. The amount of taxes represented by them is $1.,689.88. As to the other 840 sales, it is found that the owners had no personal property. It is further found that the plaintiff gave bond in the sum of $82,000 for the faithful discharge of the duties of his office before entering upon said office, which said bond was duly approved by the county court of said county. The court, upon these facts, found that it was the duty of the respondent Ledwidge to. credit the plaintiff with the sum of $4,041.90, territorial taxes; $3,233.54, county taxes; $646.69, special school tax; and the sum of $452.50 for publishing the delinquent list; and the sum of $420, for filing certificates with the county recorder,— making the aggregate of $8,804.63.. These credits are the aggregate amount of taxes represented by jfhe 840 certificates of sale made to the probate judge, and the costs of the publication of the delinquent list, and 50 cents each* for filing the 840 certificates. The court disallowed entirely the claim for credit for the 65 certificates of sale of property belonging to the persons who were assessed for personal property, and also refused to allow any costs or fees for making out certificates of sale, but found, as a conclusion of law, that this claim should be presented to the county court for .allowance. From this judgment, disallowing and refusing to compel the defendant to credit the plaintiff with the full amount claimed, plaintiff appeals. The first question which we deem proper to discuss is whether or not the plaintiff should be credited with the amount of taxes represented by the 65 certificates of sale in cases where the owners had personal property assessed to them. There is no finding that these persons had per — 10 — sonal property out of which the taxes might have been made at the date when the taxes became delinquent. It is found that the plaintiff made no search for personal taxable property of such delinquent taxpayers prior to-making sale of the real estate for their delinquent taxes, but he did examine the assessment roll, and did not at any time or at all seize or levy upon the personal property of the owner of such real estate to satisfy or pay the taxes mentioned in said certificates, or any of them. It was held in Little v. Gibbs, 8 Utah, 265, 30 Pac. 986, that a tax collector who had paid the taxes of a delinquent taxpayer had a right of action in his own name against the delinquent for the recovery of the taxes. In this case the tax collector has not paid the taxes. It may be conceded that he has failed to make a valid sale of the real estate to satisfy the amount demanded for the delinquent taxes. It would seem clear, under the provisions of our statute, that a lien for taxes still exists. The striking off of property at a tax sale to the county, or to the probate judge on behalf of the county, does not constitute the payment of the delinquent taxes at all. Section 2012 of the Compiled Laws of Utah, as amended (page 50, Sess. Laws 1890), provides that the taxes shall attach to and constitute a lien on the property assessed, if real estate, from the 31st day of August of each year, and, if personal property, from the day of the assessment. If the taxpayer is owner both of real estate and personal property, the ■tax on the personal property shall also be a lien on the real estate. In each and every case the lien shall be paramount to all other liens whatsoever, and it shall not be removed therefrom until the tax is paid, or until the title vests thereto, under a sale thereof, by virtue of proceedings to enforce paymént of the tax. ' It is evident that the taxes of these 65 delinquents have not been paid, and that they constitute a lien upon the — 11 — real estate of the delinquents for the entire amount of taxes due. The question is, in whose favor is this lien, under the facts found in this case? As already stated, this court has held in Little v. Gibbs that, if the collector paid the taxes himself, he may enforce the lien in his-own right. He has not paid them. He has made a sale, voidable at the election of the delinquent taxpayer. Of course, the sale is valid if not objected to by the delinquent taxpayer. If he sees fit to ratify it, it is clear that he may do so; but, if he seeks to avoid it, does it not follow, by virtue of the statute just quoted, that the lien for taxes still exists against the property, and that that lien is in favor of the nominal purchaser at the tax sale, and may be enforced at any time? It is never barred by the statute of limitation, and is paramount to any other lien whatever against the property. We are of opinion that, this is what the legislature intended by the section just quoted. Such being the case, the lien for these taxes is vested in the county, the nominal purchaser at the tax sale, and the collector is entitled to credit for the amount thereof. If the delinquent taxpayer never makes objection to the sale, the county obtains the title to the property sold, if the statute allows it to take a deed. It is sufficient for this case to say that the county will either obtain the property by the sale, or will obtain and has obtained a lien for the full amount of the tax due, both territorial, county, and school district, which is a paramount lien against the property of the delinquent taxpayers. Such being the case, it seems clear that the amount of these taxes should be credited to the plaintiff, in addition to the credits allowed him in the court below; the amount, as above stated, being $1,689.88. Under the findings of fact, we do not think that the plaintiff is entitled to costs for making these sales, or that the county has any valid lien upon the property for such costs; and therefore the — 12 — plaintiff is not entitled to credit for the amount claimed for making these 65 sales, to wit, $444.25. The next question is as to the fees for making out certificates of sale. One of the defenses is that the certificates are more lengthy than is necessary, and that a certificate that contains two folios is sufficient, and that, by reason of the length of the certificates, the charges therefor are extortionate. The statute fixing the fees of the ■collector is found in the Session Laws of 1890 (page 50), and is as follows, omitting the formal parts: For each ■certificate of sale, per folio, 25 cents; for publishing the name and amount of tax due from each delinquent, $1; for filing certificate of sale with the county recorder, 50 cents. Section 2031 of the Compiled Laws of Utah provides: ■“When real estate is sold for taxes, the collector shall issue a certificate to the purchaser, reciting/5 etc. “ A duplicate of such certificate shall be filed by the collector in the office of the recorder of the county; provided, that if at such sale no person bid and pay the collector the Amount of tax required to be paid as aforesaid on any real estate, the collector shall make to the probate judge and his' successors in office, for and in behalf of such ■county, a certificate similar to that given to other purchasers, and such sale to the county shall have the same ■effect as if made to an individual. And the clerk of the •county court shall credit the collector with the amount of the tax due thereon, and costs to date of sale/5 There appears to be no controversy but that the collector is entitled to 25 cents per folio for each certificate of sale. The difficulty arises in the fact that in these 840 tax sales made to the probate judge, which the court below found to be valid, he also made out a duplicate certificate, and filed the same in the office of the county recorder, and he •claims 25 cents per folio for each of these duplicates. 'The court below declined to allow him anything for making — 13 — out the certificates of sale. We thinks under the stipulation of facts, the court should have directed the clerk to-credit him with the amount of fees due him for making-out the certificates of sale, and that there was the same authority in the court to make this allowance that there was to allow him for the delinquent taxes, or for publishing the delinquent list, or for filing the certificates with' the county recorder. If there was any necessity at all for the county court to pass upon the questions, we think it was waived by the stipulation of facts; but certainly there was the same necessity for the county court to ascertain the fact that the delinquent tax list had been published as-there was for it to ascertain the amount due for each certificate. In other words, if there was anything for the county court to pass upon in relation to the plaintiffs claim, it would seem that it, of necessity, extended to his-entire claim, and not to any particular part of it. And yet the court below did allow him about $8,000 of delinquent taxes, and the costs of publishing the delinquent list, $452.50, and the costs of filing 840 tax-sale certificates with the county recorder, at 50 cents each. We are of the opinion that, under the stipulation of facts in this case on which the case was submitted, it was the duty of the court to have ascertained the amount due the plaintiff, and to have directed the defendant to credit him with that amount. As we have said, in addition to the credits allowed him, he was entitled to a credit for the remainder of the unpaid taxes. It is found as a fact that the certificates of sale were each 12 folios in length. Under the statute, the fee for making these was $3 each. A lengthy discussion is had in the appellant’s brief to show that the term “each certificate of sale” includes a duplicate certificate. We do not so understand the statute. It may well be doubted whether the statute just quoted requires any duplicate certificate of sale where the property is14 knocked off to the probate judge for the want of a bidder. The reason for requiring it does not appear to us to exist, and the statute certainly, in terms, does not require it. But, without deciding the question whether it is required or not, we are of the opinion that the statute does not authorize any charge for making out these duplicate certificates, and that the charge is confined to one certificate for each sale, and that this is the only meaning that can be attached to the words “ each certificate of sale," in the law fixing the fees of the collector. We think the plaintiff is entitled to 25 cents per folio for the certificate of each sale that he makes, and that he is not entitled to a like sum for a duplicate of such certificate. This brings us to the remaining question, whether or not the certificates of sale are unnecessarily lengthy and the charges therefor extortionate. The form of certificate is set out in the record at length, and, while it is more lengthy than perhaps the writer of this opinion would use were he called upon to make a certificate of sale, yet it is clear that the form is not prescribed by statute; that it is left to the discretion of the collector to adopt such form as he may choose. In the absence of any showing (and there is none in this record) that the form was fraudulently .gotten up for the purpose of creating illegal charges against the county, we cannot presume that the collector was actuated by bad faith in using it. We think the same presumption is to be indulged in favor of the plaintiff that is indulged in regard to other public officers, and that is that he has acted in good faith, and with an honest intention to = execute the law. It was suggested in argument, and not' disputed, that exactly the same form is in use throughout the territory, and has been for many years. Whether this is true or not we do not know, but it would seem from a careful examination of the matter that the proportion of words in the certificate which might be — 15 — •eliminated without impairing its sense is not great. Dif-ierent officers might use or compile different forms of certificates, but, as we have above stated, in the absence of .any showing that the officer has acted in bad faith, we do not feel that it is our duty to impute to him bad motives in such a matter as this. It was within the power of the •county court, perhaps, to' have regulated largely the compensation of the plaintiff with reference to the fees that might be' charged for making delinquent tax-sale oertifi-•cates. It is to be presumed that they exercised their dis•cretion, in view of all the facts before them, when they fixed the compensation of the plaintiff at $3,000, in addition to the fees which he might receive for tax sales made ■to the probate judge. It results from this conclusion that the plaintiff is also ■entitled to credit for the sum of $2,520, being $3 each for •840 tax-sale certificates, in addition to the amount allowed him below. In concluding this opinion, we may say that we have entertained grave doubts as to whether this action -and the kindred one of Weber Co. v. Hamer, 37 Pac. 749, are properly brought by proceedings in mandamus. We •should have examined that question more at length were it not for the fact that the stipulation of facts indicates that it was the intention, of the court below to fix the .amount that the plaintiff was entitled to upon the showing made that the defendant should credit him with it, and upon appeal we are asked to do the same thing. We .have done so without considering particularly the question of procedure. We are of opinion that, in addition to the $8,804.63, with which the court below directed that the plaintiff be credited, he should be credited with $1,689.88, -additional delinquent taxes, and with $2,520, additional fees and costs; making a total credit of $13,014.51. It is .therefore ordered that the judgment be reversed, and the «cause remanded to the court below, with directions to — 16 — enter judgment in that court in accordance with this conclusion, and. direct its mandate to the defendant Ledwidge, commanding him to credit the plaintiff with the sum of $13,014.51; and that the appellant recover the costs in this-court. Mebeitt, C. J., concurs.