Bosworth v. Anderson

Full title: ROBERT G. BOSWORTH, for Himself and on Behalf of All Others Similarly…

Court: Supreme Court of Idaho

Date published: Jun 4, 1929

47 Idaho 697 (Idaho 1929)

280 P. 227

Opinion

No. 5070.

June 4, 1929.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. O.R. Baum, Judge.

Action to foreclose lien of special improvement bond. Decree for defendants. Decree affirmed in part, reversed in part.

Holden Coffin, for Appellant Bosworth.

A sovereign has the power, acting through its legislature, in the absence of a direct constitutional inhibition, to provide that the lien of certain forms of taxes and obligations shall take precedence over the lien of general taxes. ( White v. Thomas, 91 Minn. 395, 98 N.W. 101; Gould v. City of St. Paul, 120 Minn. 172, 139 N.W. 293; Midway Realty Co. v. St. Paul, 124 Minn. 300, 145 N.W. 21; City of Seattle v. Everett, 125 Wn. 39, 215 P. 337.)

As heretofore stated in 37 Cyc. 1143, 1144: "It is competent for the legislature to make taxes a paramount lien on the property of the taxpayer and this has been done in many states, the consequence being that the lien for taxes takes precedence of every other lien or claim upon the property of whatsoever kind, however created, and whether attaching before or after the assessment of the taxes. But this preference does not belong to the tax lien unless it is so declared by statute, and a law, for example, which merely enacts that taxes shall be a lien on real property does not make them a first lien."

The constitution of Idaho contains nothing making general taxes a paramount lien. The statutes of the state of Idaho, as we have heretofore pointed out, do nothing more than provide that the lien of general taxes can be divested only by payment.

In California the general rule respecting priority of liens and the necessity for some statutory expression, is stated by the supreme court in the case of Guinn v. McReynolds, 177 Cal. 230, 170 P. 421, in the following language: "In dealing with tax or assessment liens, as with others, our decisions have recognized that the question of priority is one of legislative intent. Where, accordingly, the tax or assessment lien is preferred to any earlier contract lien, the basis of priority is found in the statute. . . . The question, said the Court, 'depends for its determination entirely upon statutory enactment.' "

The United States district court for the northern district of Georgia in the case of In re Wyley Co., 292 Fed. 900, said: "A tax has such lien and priority, and only such, as is given it by statute. The common law preference of the sovereign is said not to exist in favor of the United States, save as continued by statutes."

The city has authority, without any question, to fill a particular place in matters of this character. If it has authority to make the contract, then in common with any other corporation or person, it is possible for it to break that contract; and if it breaks the contract, it is liable in the same manner that any person or corporation would be. ( Chalstran v. Board of Education, 244 Ill. 470, 91 N.E. 712.)

We believe that the position we have here assumed is in accordance with the undoubted weight of authority. In fact, we question whether any well-considered decision will be found contra to this principle. One of the earliest and best considered cases upon this question is the case of Peake v. City of New Orleans, 139 U.S. 342, 11 Sup. Ct. 541, 35 L. ed. 131.

The eighth circuit court of appeals had occasion to pass upon a kindred question in the case of Barber Asphalt Paving Co. v. Denver, 72 Fed. 336, 19 C.C.A. 139.

The supreme court of Oregon has passed upon the question in the case of Commercial Nat. Bank v. City of Portland, 24 Or. 188, 41 Am. St. 854, 33 P. 532. We quote from the decision in that case at 33 P. 534: "In North Pacific Lumbering Manufacturing Co v. East Portland, 14 Or. 3, 5, 12 P. 4, Thayer, J., says: 'The improvement is supposed to be a benefit to the lot owners referred to, and the lots affected are charged with the cost of making it. The city occupies the relation in the proceeding more of an agent than a principal. It does not undertake to pay the contract price for making the improvement out of the general funds of the city. I do not think it has any power to enter into such an engagement for the improvement of the city, but it does undertake to perform all the acts required by the charter intended to supply the requisite fund to defray the expenses attending it, and a failure to comply with any of the requirements of the charter by which the fund may be realized would subject it to a general liability.' The distinction which is sought to be made between that case and the case at bar is not tenable. The stipulation of the contractor to look to a special fund did not absolve the city from the duty of putting the necessary machinery in motion to raise and collect such fund to redeem its obligation and to pay the warrants in question. When the contractor performed his contract, the duty rested upon the city to make an active effort to discharge its obligation."

F.L. Soule and C.W. Poole, for Appellant Pacific States Sav. Loan Co.

Liens for general taxes for state, county, school and other governmental purposes are superior to, and take precedence of all other liens, including liens of improvement assessments. The fundamental basis for this is found in our constitution, and our statutory provisions must be construed in view of the limitations fixed by the constitution, as it is never to be presumed that the legislature intended to pass a law which would be contrary to the constitution either in spirit or letter. (Const., art. 7, secs. 2, 7; Jack v. Weiennett, 115 Ill. 105, 56 Am. Rep. 129, 3 N.E. 445; C. S., secs. 3096-3098, 3253, 3256, 3263; secs. 1-3, chap. 58, Laws 1913; secs. 4, 6, 10, Laws 1917; Hunt v. St. Maries, 44 Idaho 700, 260 P. 155; Continental Commercial Trust Sav. Bank v. Werner, 36 Idaho 601, 215 P. 458.)

The priority of the general tax lien over all other liens of every character is inherent in the nature of the lien and its necessity to the existence of government, and the purpose for which the tax is levied. This priority is necessarily implied from and to give effect to the constitutional and statutory provisions declaring the same a perpetual lien. ( Continental Commercial Trust Sav. Bank v. Werner, supra; Mutual Benefit Life Ins. Co. v. Siefken, 1 Neb. (Unof.) 860, 96 N.W. 603; Osterberg v. Union Trust Co., 93 U.S. 424, 23 L. ed. 964; Parker v. Baxter, 2 Gray (Mass.), 185; Morey Engineering C. Co. v. St. Louis Rink Co., 242 Mo. 241, Ann. Cas. 1913C, 1200, 146 S.W. 1142, 40 L.R.A., N.S., 119; Campbell v. Gawlewicz, 3 Neb. (Unof.) 321, 91 N.W. 569.)

As a result, as between the general tax and the assessment lien, the private element involved in the latter makes it yield to the general tax, but it has a sufficient public element involved to give it "precedence of all other liens," and this is the construction to be given sec. 4007, wherein that clause is found, and is the construction placed upon it by this court in the case of Hunt v. St. Maries, supra.

This court has construed this clause to refer to liens of a private nature in the following language, after quoting the clause: "The bondholder is thus given a preference over any mortgagee or lienholder against the land of each property owner." ( New First Nat. Bank v. Weiser, 30 Idaho 15, 166 Pac. 213.)

When the owner of a tract of land conveys a part thereof by deed or otherwise, and the conveyance is filed for record in the office of the recorder of the county wherein the land is situated, the parcel so conveyed must be entered on the tax-roll of the county, for all purposes of taxation, against the grantee or owner, and he is entitled to have such parcel assessed for all purposes of taxation separate and apart from all other real property. (C. S., secs. 3111, 3112, 3114, 3120, 3129, 3135, 3138, 3140, 3141; 1913 Sess. Laws, chap. 58, secs. 16, 17, 19, 25, 34, 40, 43, 45, 46, and 63 as amended 1915 Sess. Laws, chap. 51, sec. 2.)

The improvement bonds issued by the city do not constitute or represent an obligation of the city, and the city is not liable in any event, except to levy the annual assessments to cover the instalments of the bonds and interest and remit the moneys collected by the county and turned over to the city; and if the city fails to levy the assessments or levies assessments improperly or illegally the bondholders may compel the city to make and levy the assessments correctly. (C. S., secs. 4017, 4023, 4024, 4026; City of Bainbridge v. Jester, 157 Ga. 505, 33 A.L.R. 1406-1411, 12 S.E. 798; Blackwell v. Village of Coeur d'Alene, 13 Idaho 357-370, 90 P. 353; Byrns v. City of Moscow, 21 Idaho 398, 121 P. 1034; New First Nat. Bank v. Linderman, 33 Idaho 704, 198 P. 159.)

C.L. Hillman and W.A. Ricks, for Respondents and Cross-appellants.

The constitution of the state of Idaho creates a perpetual lien upon all property in this state to secure the payment of governmental taxes. ( Board of Commrs. v. State, 125 Okl. 287, 53 A.L.R. 1128, 257 P. 788; Const., art. 3, sec. 19; art. 7, sec. 7.)

Governmental taxes are superior to all other taxes and the liens will be enforced without regard to other liens. ( Morey Engineering etc. Co. v. St. Louis Rink Co., 242 Mo. 241, Ann. Cas. 1913C, 1200, 146 S.W. 1142, 40 L.R.A., N.S., 119; State v. Jeffries, 83 Mont. 111, 270 P. 638; Chambers v. McCollum, 47 Idaho 74, 272 P. 707.)

A lien for general taxes takes precedence over a lien for a special assessment. ( Continental Commercial Trust Sav. Bank v. Werner, 36 Idaho 601, 215 P. 458; Minnesota v. Central Trust Co., 94 Fed. 244, 36 C.C.A. 214; note, 30 L.R.A., N. S., 768; note, Ann. Cas. 1913A, 676; 26 R. C. L. 404.)

The tax deeds to the county of the lands in improvement districts divest the property of the improvement liens and all other liens, except those for state taxes assessed against the property subsequent to the delinquent assessments for general revenue purposes for which the property was deeded to the county. ( Board of Commrs. v. State, 125 Okl. 287, 53 A.L.R. 1128, 257 P. 778; Const., art. 7, sec. 7; Nelson v. Pitts, 126 Okl. 191, 53 A.L.R. 1137, 259 P. 533; Continental Commercial Trust Sav. Bank v. Werner, supra; C. S., sec. 3463.)

A local improvement assessment, due or not due, is a charge against the property which will not be permitted to impede or interfere with the collection of state taxes. (Note, Ann. Cas. 1913A, 678; Board of Commrs. v. State, supra; Nelson v. Pitts, supra; note, Ann. Cas. 1913C, 1200.)

Local improvement assessments are not taxes within the meaning of the constitution. ( Elliott v. McCrea, 23 Idaho 524, 130 P. 785; Booth v. Clark, 42 Idaho 284, 244 P. 1099.)

Taxes for general revenue purposes and local improvement assessments bear no relation to each other. ( Booth v. Clark, supra.)

It is an implied term of every lien statute that the lien authorized is subordinate to liens for governmental taxes. ( Portneuf-Marsh Valley Canal Co. v. Brown, 274 U.S. 630, 47 Sup. Ct. 692, 71 L. ed. 1243; Continental Commercial Trust Sav. Bank v. Werner, supra.)

Richards Haga, Amici Curiae.

As suggested in one of the other briefs, this honorable court has laid down the rule quite clearly in the case of New First Nat. Bank v. Weiser, 30 Idaho 15, at p. 21, 166 P. 213, where it is said: "The amounts having been thus charged to each piece of abutting property and paid by each property owner for the purpose of paying off his liability under such assessments, both principal and interest, the city authorities would have no authority under said act to divert the money so paid by the property owner to the payment of interest or principal due from abutting property owners who failed or neglected to pay their assessments as required by law."

In 2 Page Jones on Taxation by Assessment, p. 2173, the rule is stated as follows: "The funds raised by special assessment are trust funds, and the city must apply them to the payment of the improvement, even if the statute under which the bonds are issued and the bonds themselves are void. Since the fund thus raised is a trust fund in the hands of the city, equity will compel such application, and if the trust fund is misappropriated by the city, it is liable for the amount of such misappropriation, even if the debt limit of the city is hereby exceeded." (See numerous cases cited.)

Under the law of this state providing for local improvement districts, each lot and parcel of land must be separately assessed. The amount of such assessment in the roll is set opposite each separate parcel of land. It is fundamental that the lien is an entirety against each of such parcels or tracts. As stated in 1 Page Jones on Taxation by Assessment, p. 1760: "An assessment is an entirety as to each lot or tract of land. Hence, if a lot is owned in severalty by two or more owners and an assessment is levied against it as an entirety and such assessment is not corrected, the lien of such assessment cannot be discharged as to a part of such tract by payment thereof. On the other hand, an assessment is separate in another sense as to each separate lot or tract of land, and is not entire as to all the tracts assessed."

GIVENS, J.

Appellant Bosworth, on behalf of himself and all others similarly situated, as owner of a special assessment improvement bond issued by the city of Rexburg, sued to foreclose the same against respondents, numerous individual owners of various parcels and lots of land, delinquent in the payment of their assessments.

The city of Rexburg, Madison county, Pacific States Savings and Loan Company, Equitable Savings and Loan Company and Portland Mortgage Company became parties claiming rights adverse to appellant Bosworth, and they, in turn, have appealed from certain portions of the judgment.

The record is voluminous but the respective parties concede that the essential facts are summed up in the findings of the trial court. These present for consideration the following questions:

1. The relative priority of general taxes as against special improvement assessments levied to pay for the improvements for the construction of which the bonds were issued.

2. Whether the unit of assessment as set forth in the original assessment-roll forming the basis of charges against the respective pieces of property must continue unsegregated and undivided during the life of the bonds.

3. The liability of the city of Rexburg for having paid as interest assessments collected to pay the principal, such payments being thus made because insufficient assessments for the purpose of paying interest had been levied.

4. The liability of the county for having apportioned to other taxing units or other improvement districts assessments collected by it for this improvement district.

5. The liability of the county in the following situation: Where general taxes as well as special assessments were unpaid on several parcels, the county issued delinquent certificates to itself and later sold the property. The bondholder contends that the improvement district is entitled to receive from the county the full amount of the special assessment delinquent on each such particular piece of property at the time the same was transferred on the theory that the county received the purchase price therefor in trust for the different taxing units, including the special assessment improvement districts.

Sec. 7 of art. 7 of the constitution of this state provides as follows:

"All taxes levied for state purposes shall be paid into the state treasury, and no county, city, town or other municipal corporation, the inhabitants thereof, nor the property therein, shall be released or discharged from their or its proportionate share of taxes to be levied for state purposes."

C. S., sec. 3097, specifies that the lien of state, county, city and school taxes shall only be discharged by payment, cancelation or rebate as provided in the chapter, and the chapter does not include any section relative to the foreclosure of a special assessment lien. ( Continental Commercial Trust Sav. Bank v. Werner, 36 Idaho 601, 607, 215 Pac. 458, 460.)

If the special assessments were of equal priority with general state taxes or were of greater priority, then on foreclosure of the delinquent special assessments the lands would either be sold free of the state tax or with the state tax still on but with it impossible for the state to recover its taxes until the special assessment had been paid which would be directly contrary to the above provision of the constitution.

Appellant Bosworth contends that the question of priority is one of statutory construction and relies on C. S., secs. 4007, 4133 and 4163 to the effect that special assessments herein considered "shall have priority over all other liens and encumbrances whatsoever."

While special assessments have sometimes been referred to as taxes, they are not taxes in the strict sense of the word for two reasons: first, they are not assessed for governmental purposes, and secondly, they are based on the theory of special benefit to the property against which the assessments are levied.

In view of the language used in Continental Commercial Trust Sav. Bank v. Werner, supra, unless it was clearly the intention of the legislature to provide that such special assessments should be superior to the general state, county and city taxes, the legislative intent as gauged by that rule would lead to a conclusion adverse to the contention advanced by appellant Bosworth.

C. S., secs. 3097, 3211-3219, 3223, 3224, 3227, 3331, in effect, make the lien of the county and city taxes the same as that of state taxes; hence of the same priority. ( Commerce Trust Co. v. Syndicate Lot Co., 208 Mo. App. 261, 232 S.W. 1055, 235 S.W. 150.) The state taxes, by the constitution, and the county and city taxes, by legislative declaration, are prior to the special assessment, and this court has, in effect, so held. ( Hunt v. St. Maries, 44 Idaho 700, 260 P. 155; New First Nat. Bank v. Weiser, 30 Idaho 15, 166 P. 213.)

Appellant Bosworth contends that the rule is that the legislature must have clearly stated that the state, county and city taxes are prior to special assessments before such priority can be given. This court in Continental Commercial Trust Sav. Bank v. Werner, supra, on rehearing, has stated the rule to be that unless the legislature has clearly announced that other liens are to be superior to the lien of general taxes, the general taxes are a superior lien.

Counsel for appellants rely on several Minnesota cases ( White v. Knowlton, 84 Minn. 141, 86 N.W. 755; White v. Thomas, 91 Minn. 395, 98 N.W. 101; Gould v. St. Paul, 120 Minn. 172, 139 N.W. 293; Midway Realty Co. v. St. Paul, 124 Minn. 300, 145 N.W. 21) which arrived at a different conclusion but it does not appear that they were decided under a constitution similar to ours.

Washington has steadfastly adhered to the same construction as herein announced, culminating in City of Seattle v. Everett, 125 Wn. 39, 215 P. 337. Other authorities substantially to the same effect are: Kerr v. Hoskinson, 5 Kan. App. 193, 47 Pac. 172; Morey Engineering Construction Co. v. St. Louis Rink Co., 242 Mo. 241, Ann. Cas. 1913C, 1200, 146 S.W. 1142, 40 L.R.A., N.S., 119; Commerce Trust Co. v. Syndicate Lot Co., supra; State v. Jeffries, 83 Mont. 111, 270 P. 638; Campbell v. Gawlewicz, 3 Neb. (Unof.) 321, 91 N.W. 569; Mutual Ben. Life Ins. Co. v. Siefken, 1 Neb. (Unof.) 860, 96 N.W. 603; Smith v. Specht, 58 N.J. Eq. 47, 42 Atl. 599; McMillan v. Tacoma, 26 Wn. 358, 67 P. 68; City of Ballard v. Way, 34 Wn. 116, 101 Am. St. 993, 74 P. 1067; Ballard v. Ross, 38 Wn. 209, 80 P. 439; Everett v. Morgan, 133 Wn. 225, 233 P. 317; on rehearing, 237 P. 508; Page Jones, Taxation by Assessment, sec. 1069.

Reverting to C. S., secs. 4007, 4133, 4163, we do not believe that the fact that the legislature in other sections with reference to other kinds of assessments excepted general taxes is controlling as an indication that with regard to the special assessments mentioned in these sections they intended to make general taxes subordinate thereto.

From C. S., sec. 4000, it is apparent that the city council are to determine the expense each contiguous tributary lot or parcel of the lands included in the improvement district is to bear, in proportion to the benefit derived by such property. The assessment-roll was constructed to show the name of the owner of the property, the lot and amount due, a typical example being as follows:

Name Block Plat Description Am't Due Ricks Academy 3 Parker Lots 1, 2, 3, 4, 5, 8. 52 Rexburg Lot 2 $7067.54 While there is authority to the effect that such assessments being for a lump sum on more thon one lot, are void, such point is not made in this case and no appeal was taken from the assessment-roll and payments have been made in accordance therewith and we proceed on the assumption that this assessment-roll is, for the purpose of this action, valid and binding on the parties. The various assessments were made on the parcels of land according to the then ownership of each parcel so taken and designated as an assessment unit. That being true, the city council's determination and apportionment of the benefits on all the property became fixed on each description in the sum designated. A change in this apportionment of the benefit and assessment would be in violation of the statutes as adversely affecting every other property owner as well as purchasers of the bonds. This assessment became the basis, as to the individual property owner, of the charge on his land indicative of the benefits accruing to him, and fixed the amount of the lien against his land, and it would have to be paid on such unit to redeem his land from the obligation of the bonds. This unit as to the bondholders contained the definition of their security because, while the bonds were obligations secured by all the lands in the district, in order to enforce their security, foreclosure would be necessary against each particular piece of land in the district to the amount of liability thereon, theretofore determined by the only body authorized to act, namely, the city council. Therefore, for the life of the bond issue, these units of assessments were fixed and could not be changed. (C. S., sec. 4017.) We believe this to be in entire harmony with Amsbary v. City of Twin Falls, 34 Idaho 313, 200 P. 723. See, also, McQuillin on Municipal Corporations, 2d ed., sec. 2241.

The city of Rexburg collected $17,121 to be applied in the payment of the principal of the bonds but instead used this sum to pay interest. The appellant here contends that the city by thus diverting these funds became liable therefor because of the violation of its duty as collecting agent. This court has previously held contrary to appellant's contention in this regard, Broad v. Moscow, 15 Idaho 606, 99 P. 101, and this case has been cited or construed in numerous instances to the same effect. ( Moore v. Nampa, 18 Fed. (2d) 860; Id., 276 U.S. 536, 48 Sup. Ct. 340, 72 L. ed. 688; Gagnon v. Butte, 75 Mont. 279, 51 A.L.R. 966, note, 243 P. 1085; see, also, Capitol Heights v. Steiner, 211 Ala. 640, 38 A.L.R. 1264, note, 101 So. 451.)

The county collects the taxes for the city and other taxing units and is charged with the duty of paying such taxes and assessments when collected to the proper taxing unit and receives as compensation therefor one and one-half per cent of all taxes collected. (C. S., sec. 3224.)

Of $36.37 collected for the special improvement district involved herein, the following amounts were improperly diverted:

To the Predatory Animal Fund..................$ .17 To Local Improvement District No. 11..........18.56 To City of Rexburg — General Funds......17.64

The city never received the amount diverted to the Predatory Animal Fund and the county should be held liable therefor.

The balance was paid to the city but diverted by the city for purposes other than the payment of the bonds involved herein. For this diversion the city and not the county is liable.

Property owners, having paid this money for a certain purpose, have been injured if it has been diverted to some other. Likewise the bondholders, since they have never received it.

The further claim of Bosworth for the bondholders' proportionate share of the assessments included in the delinquent tax items for which some property was transferred to the county and later sold by it for delinquent taxes is resolved by reasoning applicable to the relative priorities of general taxes and special assessments.

The findings show that the property did not sell for more than enough to pay the general taxes delinquent thereon. There is no basis for a claim on the county inasmuch as the county does not guarantee collection of these taxes and in the first instance the general state, county and city taxes are entitled to be satisfied out of the sale of the property.

The respondents, Pacific States Savings and Loan Company, Equitable Loan Company and Portland Mortgage Company urge that because the assessment-roll was not filed by the county recorder, notice of the same did not become a lien and they were not charged with notice that there were assessment liens on the land on which they took mortgages. Hence the lien of the bonds is inferior to their mortgages or at least they are entitled to have the units of assessment segregated for their benefit.

The statute does not require these assessment-rolls to be filed. All parties are charged with knowledge of the law to the effect that C. S., title 32, chap. 163, art. 6, has been complied with; the lien of the bonds upon the lands of an improvement district becomes fixed and paramount to any other lien excepting those of the general state, county and city taxes. (C. S., sec. 4013; Jenkins v. Newman, 122 Ind. 99, 23 N.E. 683; Page Jones, Taxation by Assessment, sec. 1068.)

Appellant Pacific States Savings and Loan Company concedes that the order of the lower court, setting aside the judgment in this case, after an appeal had been perfected from such judgment, was for that reason void, and that the judgment was not and could not be affected thereby. Hence the same need not be discussed.

The decree of the trial court holding state, county and city taxes superior to special improvement assessments and denying the claim of the bondholders against the county for a share in the proceeds of the sale of the various pieces of property sold by the county for state, county and city taxes, and denying appellant's claim against the city for amounts collected by the city as principal and paid as interest is sustained.

The decree permitting the splitting up of the units for assessment and denying appellant's claim against the county and city for the improper application and diversion of the special assessment funds, is reversed with instructions to determine said matters and enter a decree in accordance herewith.

Each party to pay his or its own costs.

Budge, C.J., Wm. E. Lee and Varian, JJ., and Brinck, D.J., concur.

Petition for rehearing denied.