Jungk v. Snyder

McCARTY, J., after making the foregoing statement of facts, delivered the opinion of the court. The important question presented by this appeal is, did the assessor of Tooele county, under the circum-tances, comply with the provisions of the statute then in [6] force providing the manner and form in which property should he listed and entered upon the' assessment books, by listing the property in question to owner “Unknown?” and, also, was the notice of snch assessment which was transmitted through the mails directed to “Ophir, Unknown” a substantial compliance, under the circumstances, with the statutes? Section 43 of the Revenue Act of 1896 (Sess. Laws ’96, chapter 129, p. 423) among other things, provides that “The State board of equalization must prepare and furnish to each' county, an assessment book with appropriate headings, in which must be listed by the county assessor of each county, all property within the county, and in which must be specified in separate columns under the appropriate head: ‘ ‘ 1. The name of the person to whom the property is assessed, together with the postoffice address giving the street and number or the number of lot and block if practicable of such person so far as possible to obtain same from taxpayers’ statements, county records or otherwise. ‘ ‘ 4. Mines and mining claims by name and number of lot.” Section 50 provides that “The State board of equalization shall furnish the board of county commissioners, annually.a list of all patents of mining locations,” etc. Section 46 provides that “As soon as completed, the assessment book mentioned in section 43, “must be delivered to the county treasurer, who shall furnish to each taxpayer by mail to addresses noted, postage prepaid, or leave at his residence or usual place of business, if known, a notice of the kind and valuation of property assessed against him, ’ ’■ etc. It will thus be observed that under the foregoing -provisions of the Revenue Act, in force at the time of the levy and sale complained of were made, it was the duty of the assessor to list and enter the property assessed in his county under the proper headings and to [7] enter the names of the owners of the property assessed so far as possible to obtain the same from taxpayers’ statements, county records or otheruAse. In the case before ns the record shows that notwithstanding thatthe records of Tooeleconnty showed the title of the Henrietta mining claim to be in at least three of the plaintiffs herein, whose names and claim of title to the property conld have been readily discovered by. an examination of the records, no attempt was made through this or any other source by the assessor to discover and procure the names of the owners of the property. Not only could this information have been easily obtained from the county records, but it could have been procured from the United States Land Office where the information of the existence of the patent was obtained by the State board of equalization. This court following the great weight of authority has held in a number of cases that as tax sales are made exclusively under statutory authority, the provisions 1 of the statute conferring such authority must be fully complied with, and any substantial departure therefrom, prejudicial to the owner of the property, will invalidate the sale. Olsen v. Bagley, 10 Utah 492; Eastman v. Gurrey, 15 Utah 410; Asper v. Moon, 24 Utah 241; Moon v. Salt Lake County, 27 Utah 435, 76 Pac. 222; Black, Tax Titles, 154-155; Houghton County v. Auditor General, 41 Mich. 28. Mr. Cooley, in his work on Taxation, p. 470, says': ‘ ‘ The officer who makes the sale sells something lie does not own, and which he can have no authority to sell except as he is made the agent of the law for the purpose. But he is made such agent only by certain steps which are to precede his action, and which, under the law are conditions to his authority. If these fail the power is never created. If one of them fails it is as fatal as if all failed. Defects in the conditions to a statutory authority cannot be aided by the courts; if they have not been observed, the courts cannot dispense with them, and thus bring into existence a power which the statute only [8] permits when the conditions have been fully complied with.” And again the author'says: “It is therefore accepted as an axiom when tax titles are under consideration, .that a condition to their validity is that there should have been a substantial compliance with the law in all the proceedings of which the sale was the culmination.” It is apparent that neither the letter nor the spirit of the law has been complied with in this case. While section 21 of the Revenue Act referred to, provides that “If the name of the absent owner is known to the assessor, the property must be assessed in his name; if unknown, the property must be assessed to ‘unknown owners,’ section 43 also provides that the name of the owner of the property together with his postoffice address “so far as possible to obtain from . . . county records or otherwise” shall be entered in 'the assessment books under the proper heading, which clearly shows that it is the duty of the assessor to avail himself of the information thus furnished by the public records, to ascertain the name or names of the owners of taxable property in his county. “Property is to be listed against the owner or other person primarily liable, where his name can be ascertained, and if assessed to another or to persons unknown the tax is void. But the assessor, when unable to discover who is liable for the tax may assess it to unknown owners. If the owner’s name could have been ascertained .from the public records or otherwise, however, the property cannot be- assessed to unknown owners.” Ency. of Law (1 Ed.), 212-213, and cases cited in note. The assessor in this case having failed to observe and follow the plain provision of the statute, to the prejudice 2 of the owners of the property in. question, the sale was a nullity. The record shows several other irregularities in the tax proceedings under [9] ’consideration, which are relied upon by respondents as a ground of recovery, but we deem it -unnecessary to consider them. The findings and judgment of the trial court are fully sustained by the record. We find no reversible error in the record and the judgment of the district court is therefore affirmed with costs. BASKIN, C. J., and BARTCH, J., concur.