State ex rel. American Savings Union v. Whittlesey

50 P. 119, 17 Wash. 447, 1897 Wash. LEXIS 266

• Court: Washington Supreme Court
• Decided: August 5, 1897
• Docket: No. 2650
• Status: Published

Opinion

The opinion of the court was delivered by

Anders, J.

It is agreed between counsel for the respective parties in this proceeding that on June 22, 1897, the American Savings Union, the relator herein, tendered to the appellant "Whittlesey,, who was treasurer of King county, the amount of taxes for 1896 due on lot six of block seventeen of Benton’s addition to the city of Seattle, together with fifteen per cent, interest thereon from May 31, 1897, the date when taxes for 1896 became delinquent, and fifty cents as an additional fee for certificate, and requested the said treasurer to issue a delinquency tax certificate to him in accordance with the act of the legislature of March 15, 1897. (Laws 1897, p. 136.) This the treasurer refused to do, claiming that the act was unconstitutional and void, and that, even if valid, it did not apply to the taxes for 1896. The relator thereupon applied to and obtained from the superior court of Bung county an alternative writ of mandate requiring the said treasurer to issue the certificate of delinquency or show cause why he refused. The defendant appeared and filed a general demurrer to the plaintiff’s affidavit and writ, and, on the hearing, the demurrer was overruled and judgment entered making the writ peremptory. From this judgment the defendant has appealed to this court.

Two questions are presented for determination on this appeal: hirst, as to the constitutionality of the act in question; and, second, whether it is applicable to the delinquent taxes of 1896. The main constitutional objections urged by counsel for appellant against the validity of this act are, first, that that part of the act providing for the issuance of delinquency tax certificates, with the incidents mentioned therein, is not sufficiently expressed in the title; second, that the provision that redemption shall be made by paying the holder of the certificate the amount he has paid, with fifteen per cent, interest thereon, results in unequal taxation and is therefore void; and, third, that the creation of a lien by the issuance and sale of a delinquency certificate to a stranger having no interest in the property, the lien having the force and effect of a judgment execution and sale, without notice to, or a hearing by, the property owner, is in conflict with that provision of the constitution declaring that “ no person shall be deprived of life, liberty or property without due process of law.” (Constitution, art. 1, § 8.) Sec. 19 of art. 2 of the constitution provides that "no bill shall embrace more than one subject and that shall be expressed in the title.” It has been many times declared by the courts that the object of this constitutional provision is that neither the members of the legislature^ nor the people, should be misled by the title of a legislative act, but it has never been held that the title should embody all the distinct provisions of the act in detail. Such a construction would be eminently unreasonable, for in such a case the body of the act would be nothing more than a repetition of the title. It is said by Judge Cooley that the generality of a title is no objection to it so long as it is not made a cover to legislation incongruous in itself, and which by no fair intendment can be considered as having a necessary or proper connection. The legislature must determine for itself how broad and comprehensive shall be the object of the statute, and how much particularity shall be employed in the title in defining it. Cooley, Constitutional Limitations (5th ed.), p. 174. The title of the act in question is, “An act to provide for the assessment and collection of taxes in the state of Washington,” and there is no question but that it is a general and comprehensive one. The only question, therefore, to determine is whether the particular provision of the statute under consideration is embraced within the title, and we have no doubt, under the decision in Marston v. Humes, 3 Wash. 267 (28 Pac. 520), that it is.

Section 94 of the statute, which is the section especially referred to by counsel for appellant, provides that any day after the taxes charged against real property are delinquent, the treasurer shall have the right, and it shall be his duty upon demand and payment of the taxes and interest, to make out and issue certificates of delinquency against such delinquent property, and such certificates shall be numbered and have a stub which shall be a summary of the certificate and shall contain enumerated statements, among which is—

“A guaranty of the county or municipality to which the tax is due that if for any irregularity of the taxing officers this certificate be void, then such county or municipality will repay to the holder the sum paid thereon with interest at the rate of six per cent, per annum from the date of its issuance.” (Laws 1897, p. 181, § 94, subd. 8).

This section is certainly germane to the subject of collecting taxes which is expressed in the title of the act.

Section 2 of article T of the state constitution provides for a uniform and equal rate of assessment and taxation on all property in the state according to its value in money, and it is claimed by the learned counsel for respondent that the provision that redemption shall be made by paying to the certificate holder the amount he has paid with fifteen per cent, interest thereon is in contravention of this provision of the constitution, because it requires the owner of land on which a certificate is outstanding to pay compound interest, while his neighbor, equally delinquent in payment of his taxes, and against whose land no certificate has been sold, is only required to pay simple interest. We are unable to see how this provision of the statute violates the rule of uniformity of assessment and taxation. The meaning of the word “ uniform,” which has been generally adopted by the courts, is that uniformity must refer to property or persons of the same class, i. e., different kinds of property may be taxed at different amounts providing' the rate is uniform on the same class everywhere, with all people, and at all times. (Miller, Constitution of the United States, p. 241.) It will be seen from an examination of the statute that all persons owning lands in the state are subject to the same taxation, and it is not shown, or even alleged, that the property in question was not assessed in conformity with this constitutional provision. The inequality, if any exists, arises, not in the mode of assessment or taxation of the property, but only in the collection of the interest after the taxes become delinquent. It is said to be a general rule of law that all penalties must be equally and uniformly imposed upon all persons similarly situated and belonging to the same class. (25 Am. & Eng. Enc. Law, p. 304.) But the requirements of this rule are fully met by the provisions of this statute. All persons similarly situated and belonging to the same class are subject to pay precisely tbe same rate of interest. Abigb rate of interest is imposed upon the tax-payer after delinquency, first, to induce prompt payment of taxes, and second, to reimburse tbe county or state for a failure in making payment at tbe proper time.

As to tbe third proposition above mentioned it may not be improper to observe that, as we read section 95 of tbe act, it purports only to make tbe certificate of delinquency prima facie of tbe same force and effect as a judgment execution and sale against tbe premises included therein. It has been declared that tbe clause usually found in constitutions which declares that no person shall be deprived of bis property without due process of law does not apply to tbe levying and collecting of taxes. People v. Mayor, 4 N. Y. 419 (55 Am. Dec. 266); Baker v. Kelley, 11 Minn. 480.

But, however that may be, tbe requirement of due process of law is satisfied where tbe property,owner has notice and an opportunity to defend before bis title is actually divested by tbe issuance of a deed. It is not necessary that be have notice of every step taken in tbe assessment and collection of tbe tax. State v. Lands in Redwood County (Minn.), 42 N. W. 414.

Under tbe statute, before tbe lien evidenced by tbe delinquency certificate can ripen into a complete title tbe property owner has notice to appear and protect bis rights in tbe most ample manner. A proceeding in court is prescribed by tbe statute and no doubt for this very purpose. It therefore would seem evident that property can not be taken under tbe provisions of this statute without due process of law.

Tbe point is also made that tbe statute under consideration is retrospective, and for that reason void. "We find no provision, however, in our constitution inhibiting tbe passage of retrospective laws, and we think the rule is well settled that the legislature may enact such statutes whenever they are not restrained by constitutional provisions. Indeed, there is hardly room for doubt as to this proposition. A “ retrospective law is one that relates back to, and gives to a previous transaction some different legal effect from that which it had under the law when it transpired.” And it is said in Cooley on Constitutional Limitations (5th ed.), p. 456:

“ There is no doubt of the right of the legislature to pass statutes which reach back to and change or modify the effect of prior transactions, provided retrospective laws are not forbidden, eo nomine, by the state constitution, and provided further that no other objection exists to them than their retrospective character.”

And in this connection the author further observes that:

“Nevertheless, legislation, of this character is exceedingly liable to ^buse; and it is a sound rule of construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively.”

The question therefore is, Is this statute retrospective in regard to the issuance of delinquency certificates? We think that it is not, but that it is in that regard wholly prospective. We are further of the opinion that it must be deemed applicable to taxes for 1896 for the reason that such taxes did not become delinquent until some time after the passage of the act. Prior to the passage of this statute delinquent taxes were collected by the county treasurer by the institution of a suit in the superior court to’ foreclose the lien. (Laws 1895, pp. 513, 521.) But by the provision of the present statute this mode of collecting delinquent taxes is entirely changed and the treasurer is required, instead of going into court to foreclose the lien, simply to issue the certificate of delinquency provided for in section 94. This, it would seem, necessarily repeals the former law, and must therefore he applicable to delinquencies occurring in payment of taxes of 1896 as well as subsequent years. It expressly applies to certain previous years.

It is also suggested on behalf of appellant that the interest at the rate of fifteen per cent, on delinquency certificates is usurious and void, but we are unable to perceive any force in this contention. If it were conceded that the general law declaring what shall be the rate of interest between private parties applies to delinquent taxes, which we do not concede to be the fact, still it would be within the power of the legislature to change the general law so far as the interest upon delinquent taxes is concerned.

The question is asked by counsel for appellant, Oan the legislature require a municipality to guarantee the payment of the amount paid for the certificate in case it be found to be void, and can a municipality be required to pay interest upon the amount of such guarantee? We think it can, and that such legislation is entirely just and proper. Where the county or state has received money to which it was not legally entitled there can be no valid reason why it may not repay it to the party from whom it was received. Such statutes have been passed in other states, and so far as we are advised have always been held valid.

See Warner v. Supervisors, 19 Wis. 611; Norton v. Supervisors, 13 Wis. 611; Roberts v. County of Adams, 18 Neb. 411 (25 N. W. 726); Flint v. Commissioners, 43 Kan. 656 (23 Pac. 1048).

It was held in Board of Commissioners v. Lucas, 93 U. S. 108, that, unless restrained by the constitution, the legislature may direct the restitution to tax-payers of property exacted from them by taxation. But it is contended on the part of appellant that the guarantee of the payment of interest upon a void certificate may increase the indebtedness of the several counties and municipalities beyond the amount authorized by the constitution. This position is more specious than sound. Whether such may be the effect or not is certainly a remote contingency, and, until it is shown that such interest in any case would actually cause the limit of constitutional indebtedness to be exceeded, the county treasurer would not be justified in refusing to issue such certificates. But the fact that the constitutional limit of indebtedness may, under certain contingencies, be exceeded, cannot be deemed a sufficient ground for declaring the act void in this particular. It was decided by this court in State, ex rel. Barton, v. Hopkins, 14 Wash. 59 (44 Pac. 134, 550), that taxes assessed, levied and unpaid remained an asset which could properly be taken into account in determining whether the amount of indebtedness was within the constitutional limit. And if that be true, it would seem to follow that the interest prescribed by law upon delinquent taxes should also> be deemed an asset of the county for the same purpose. And such interest, it must be presumed, would be sufficient to reimburse the county for all interest paid on account of void certificates.

It is further contended that the issuance of delinquency certificates to a county or municipality for taxes which remain due and unpaid in the same manner as they are issued to individuals is impracticable and impossible of performance, under section 98 of the statute, because of the difficulty of separating the different taxes therein enumerated. The general law makes it the duty of the treasurer to collect all taxes whether due to counties, to the state, or to municipalities, and we see nothing to prohibit the issuing of one certificate for all taxes due upon any particular piece of land. The county treasurer is required, upon receiving moneys for taxes, to apply the same to the several funds for which the tax was raised, and there is no reason why he should not do SO' in cases where he receives money for a delinquency certificate under the general law relating to the collection of taxes. The words “ or municipality ” in the act might well be disregarded, for, as suggested by counsel for the respondent, they were probably borrowed or taken from some law where the taxes ivere collected in cities and towns separately from the county taxes. However, we are not of the opinion that the division of the tax and issuance of certificates to the cities or toAvns is by any means impossible of performance.

Objection is also made to the statute on the grounds that the recitals in the tax deed are made by the act prima facie evidence of certain 3natters and things therein specified, and that the judgment for a tax deed shall be conclusive evidence of its regularity and validity in all collateral proceedings, excepting cases where the tax or assessments have been paid, or the real.estate was not liable to the tax or assessment. We are unable to perceive any merit in this objection. Such statutes have been uniformly upheld and they are very generally found in acts relating to the collection of revenue.

Some other points are made by appellant, but, inasmuch as they relate to the policy and justness of the statute, we Avill not now stop to consider them, for the reason that such matters are of no concern to the courts.

The judgment is affirmed.

Scott, O. <L, and Gordon and Reavis, JJ., concur.