Kipp v. Dawson

17 N.W. 961, 31 Minn. 373, 1884 Minn. LEXIS 9

• Court: Supreme Court of Minnesota
• Decided: January 11, 1884
• Status: Published

Opinions

Mitchell, J.

Action to determine adverse claim to real estate. Defendant in his answer claims title under a sale of the land for faxes delinquent in the year 1879 and prior years, pursuant to Laws 1881, c. 135. The principal questions in the case involve the validity of this sale.

1. The first point urged is, that the tax judgment itself was void, because the taxes for the years 1879 and 1880 were included in the amount. This was clearly a mistake, for the act referred to only authorizes proceedings against real estate for taxes which became delinquent in the year 1879 (i. e., taxes of 1878) or any prior year or years. The judgment should only have been for the taxes of 1874 to 1878, inclusive. The only question is whether the error in the amount of tax included in the published list and in the judgment against this land is jurisdictional, and goes to the validity of the judgment. We think not. The fact that the taxes for 1874 to 1878 were delinquent authorized proceedings against this land under the act. The filing of the list with the clerk of the court had the force and effect of filing a complaint in an action against the land. The publication of this list, with the proper notice attached, was equivalent to the service of a summons upon all parties interested. These things being done, the court had jurisdiction of the subject-matter; and no error in the .amount claimed in either the complaint or notice affected this juris■dictiop. If a mistake was made in the amount of tax claimed against the land, this was a matter which the owner was bound to interpose by way of answer or objection, as provided by Gen. St. 1878, c. 11, § 75. It can make no difference, in principle whether the mistake arose from erroneously including the taxes of 1879 and 1880, or from an error in computing tbe amount of taxes for the prior years, which were properly included. And, in the general tax law, (Gen. St. 1878, c. 11, § 73,) mistakes in the amount of tax in the published list appearing against any piece of land, is one of the things which it is expressly provided shall not affect the jurisdiction of the court.

2. The next objection urged is against the sufficiency of the notice of sale under the judgment. The act of 1881 provides that the sale shall be made “ immediately following the delinquent sale in September.” The delinquent sale commences on the third Monday of September, (Gen. St. 1878, c. 11, § 82,) and the county auditor “shall proceed with the sale thereof from day to day for six consecutive days, or until the whole shall have been sold.” The third Monday in September, 1881, was the 19th of the month. This “delinquent sale,” as the court finds, was continued from day to day for six consecutive days, and closed on Saturday evening, the 24th of September. Hence, Monday, the 26th of the month, w'as the first day on which the sale of the “forfeited list” could have commenced. The notice given by the county auditor was that the sale of the forfeited list, under the law of 1881, would commence on the 26th day of September, 1881. It is claimed that the auditor could not thus fix a specific date, but that the notice should have been, in the words of the statute, to wit, “immediately following the delinquent sale in September. ” We have no doubt that the latter form of notice would have been good. Indeed, inasmuch as, by the act of 1881, the “forfeited list” was to be appended to the “delinquent list,” hence, to be published with it, and the sale under it to immediately follow the delinquent sale, it may admit of doubt whether any separate notice of the sale of the forfeited list was necessary at all, the idea of the statute seeming to be that the latter was to proceed as a continuation of the same sale. But, however this may be, in the present case the sale of the forfeited list did take place immediately following the delinquent sale, and the day fixed in the notice (the 26th) was in fact the next day (except Sunday) after the close of that sale. Hence, even if the notice would have been more properly in the words of the statute, we fail to see how anybody could have been prejudiced by the form of the notice given in this case. Indeed, the variation from the statutory form, if it had any effect whatever, would operate in favor of all parties, for, had the notice been in the words of the statute, bidders and parties interested in the property might be compelled to be in attendance from the first day of the “delinquent sale,” not knowing on what day it might end, and the “forfeited sale” commence; whereas, under the notice given, they were advised of the precise day on which the latter would begin. And if the auditor was assured that the delinquent sale would last six days, we can see no reason why he might not, in his notice, designate the next, or seventh, day as the date of the commencement of the “forfeited sale,” instead of using the words of the statute. What would have been the effect had such a date been fixed in the notice that an interregnum would have intervened between the two sales, we do not now consider or determine.

3. The next objections are to the certificate of sale. There is nothing inconsistent between the recital in the certificate that the land “was offered for sale to the highest bidder,” and the provisions of section 4 of the act of 1881. This section does provide for its being offered to the highest bidder. The certificate in this respect is in the very form given in the statute itself. It is further claimed that the certificate shows that several distinct tracts, including the one in question, were offered for sale “in bulk to the highest bidder for the whole.” We are of opinion that the language of the certificate will not admit of this construction. It states, after describing the several parcels separately, and affixing a separate sum to each parcel, that the auditor “sold the said pieces or parcels of land to J. TI. Dawson severally, for the sums above stated.” This could not well be if the tracts were all offered for sale and sold together in gross.

4. The next objection attacks the validity of the judgment. It is that no newspaper was ever designated, as required by law, in which this “forfeited list” should be published. Section 1 of the act of 1881 provides that the list shall be appended to the “delinquent list.” This necessarily implies that the two should be published together and in the same paper. Hence, if the newspaper in which the “delinquent list” should be published was properly designated, this was sufficient for both. The county board, at their March meeting in 1881, by resolution designated the newspaper in which this delin•quent list should be published. The only point made against this resolution is that it uses the words “the delinquent tax-list of said county for the year 1880,” whereas it should have been the delinquent tax-list for 1881. The expression used in the act of 1881 is, “the list of delinquent taxes for the present year.” This, no doubt, refers, not to the taxes of 1881, which would become due in 1882, but to the taxes of 1880, which became delinquent the then present year of 1881. That was, no doubt, the list to which the forfeited list was to be appended. We have so construed the law, (Knudson v. Curley, 30 Minn. 433,) and we think it sufficiently clear that this was what is referred to and meant by the resolution. It could not have referred to the list of taxes for 1879, which became delinquent in 1880, for the time for the publication of that list had expired the year previous. The language of the resolution is certainly not more ambiguous than the words of the law of 1881 itself, which we have construed in the case cited.

5. It only remains to consider the objection made that the tax judgment is void, because the list and accompanying notice of application for judgment were not published within the time prescribed by law. This was the ground upon which the court below held the tax title invalid, and for that reason, among others, it is entitled to somewhat full consideration, inasmuch as we have arrived at a different conclusion. The provisions of the statute bearing upon the question are as follows: Section 2 of the act of 1881 provides that “the same proceedings shall be had with reference to advertisement * * * of the property described in such forfeited lists as are required by the general tax law (Gen. St. 1878, c. 11,) for advertisement * * * of property described in the regular delinquent list.” Section 70 of the general tax law requires the county auditor to file in the office of the clerk of the district court, on or before June 15th, a list of delinquent taxes. Section 71 of the same chapter requires the clerk, within 15 days thereafter, to make and deliver to the county auditor a copy of the list so filed, with the prescribed notice attached. Section 72 (as amended by Laws 1881, c. 10, § 12,) requires the county auditor to cause this list and notice to be published once in each of two consecutive weeks in the proper newspaper, “the first publication of which list shall be made within 15 days after the delivery thereof, as provided in the preceding section.” Hence, if all these officers comply with the directions of the law, the first publication of this list would be made on or before July 15th.

In the present case, this list and notice was first published July 22d, seven days after the time ■ directed by statute. The question, therefore, resolves itself into this: Is this provision of statute mandatory, or merely directory? If the former, the omission to comply with it renders the judgment void; if the latter, this omission does not necessarily affect its validity. As remarked in Cooley on Taxation, 212 et seq., all provisions of statute, not on their face merely permissory or discretionary, are intended to be obeyed, or else they would never have been enacted, and therefore they come to the several officers who are to act under them as commands. .But the negligence or mistakes of public officers, and other causes, will often prevent a strict compliance; and when the provisions which have been disregarded constitute, as in this case, a part of a complicated system, it becomes of the highest importance to ascertain the effect the failure shall have on the other proceedings with which they are associated. Does the authority to proceed with the proceedings terminate when that particular step has been neglected, or may the proceedings go on notwithstanding the omission ? In other words, should the provision of law not complied with be declared mandatory, or merely directory ? The purpose of the provision ought generally to be conclusive on this point. No one should be at liberty to plant himself upon the nonfeasance or misfeasance of officers under these tax laws which in no way concerns or prejudices him. On the other hand, he ought always to have the right to insist that directions which the law has given for his benefit shall be strictly observed. The rule generally adopted (and we think the correct one) is that a statutory provision intended merely for the guidance of the conduct of officers in the conduct of public business, so as to insure the orderly and prompt performanee of public duties, and a disregard of which cannot injuriously affect the rights of parties interested, will be deemed merely directory. Such, generally, are regulations as to the time within which a public officer shall perform an act, when the regulation is designed merely to insure system and dispatch in the proceedings. But where the regulation is 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 injuriously affected, it is mandatory.

Subjected to this test, we think that the provisions as to the date of the first publication of the delinquent list are merely directory. They are in no wav intended for the benefit of the tax-payer, but merely to insure, the publication in time to allow the remaining proceedings to be had according to law. The sale has to take place on the third Monday in September. Preceding this, the list and notice of application for judgment must be published for two weeks. A hearing on this application must be had, and judgment rendered, and then, after judgment, notice of sale must be given for a specified length of time. The regulations of sections 70, 71, and 72, as to time, are designed to insure the doing of the acts therein required in time to permit the taking of these subsequent proceedings before sale. And if done in season to secure this, the tax-payer is in no way prejudiced by the failure to perform them at the precise date fixed by the law. The provisions, so far as time is concerned, which are designed for his benefit, and to prevent any unjust sacrifice of his property, are— First, the two weeks’ publication of the list and notice of application for judgment, so that he may have an opportunity to answer or object to the entry of judgment if he desires; and, second, the giving of the proper notice of sale at the time fixed by law, so as to secure a fair sale. These, therefore, are mandatory. What the tax-payer is interested in is not the exact date of the publication of the list, but that he may have the kind and length of notice provided by law — First, before judgment, and then, second, before sale.

6. The fact that the notice of sale uses the word “interest” instead of “penalties,” contained in the form given in section 82 of the general tax law, is unimportant, especially as, under the act of 1881, no penalties are included — merely principal, interest, and costs.

This disposes of all the points made by respondent against this tax title adversely to him, and therefore the judgment must be reversed, and a new trial ordered.

Ordered accordingly.