Opinion
No. 7427.
June 22, 1948.
Appeal from District Court, Eighth Judicial District, Benewah County; O.C. Wilson, Judge.
Mandamus proceeding by D.C. Winans against Lulu Swisher, County Treasurer and Ex Officio Tax Collector of Benewah County, Idaho, in her official capacity. From an order quashing writ of mandamus and from judgment dismissing the proceedings, the plaintiff appeals.
Reversed and remanded.
Wm. D. Keeton, of St. Maries, for appellant.
The petitioner was legally entitled by law to redeem the property from delinquent taxes and have the deed issued for the reason that the property was subject to be redeemed at any time prior to tax sale. See section 61-1023, Idaho Codes; 1935 Session Laws, page 213.
The act of 1947 Legislature applies only to future tax deeds and not deeds issued prior to the taking effect of the 1947 amendment. Section 70-101, Idaho Codes of 1932, reads as follows: "No part of these compiled acts is retroactive unless expressly so declared." Peavy v. McCombs, 26 Idaho 143, 140 P. 965; Washington County v. Paradis, 38 Idaho 364, 222 P. 775; Lawrence v. Defendbach, 23 Idaho 78, 128 P. 81; Merrill v. Dearing, 32 Minn. 479, 21 N.W. 721; 61 C.J. page 1243, paragraph 1689; 1687; 61 C.J. page 1243, paragraph 1689; Crawford v. Shaft, 35 Kan. 478, 11 P. 334; Stein v. Hanson, 99 Minn. 387, 109 N.W. 821; 59 C.J. 1159, paragraph 692; Nampa Irrigation District v. Barker, 38 Idaho 529.
Carl M. Buell, of St. Maries, for respondent.
The County having a lien upon the real property by virtue of the delinquent taxes, the lien was foreclosed as provided by statute. Section 61-1025 as amended in 1933 and by Chapter 3, Session Laws of 1939 provides: "61-1025. Tax Deed. — Issuance. If the property is not redeemed within the three years from the date of the delinquency entry, the tax collector, or his successor in office, must make to the county a deed to the property."
This statute is mandatory, requiring the tax collector to issue a deed to the county and limits the time in which the owner has an absolute right to redeem the property from the lien of delinquent taxes. "The later authorities are overwhelmingly to the effect if the proceeding has been regular and a tax sale has been made in substantial conformity with law that the time within which the landowner may redeem is fixed and limited by statute, and that after the expiration of such period he has no right of redemption, whether a deed has been issued or not." White Pine Mfg. Co. v. Morey, 19 Idaho 49, 112 P. 674.
The facts in this case are not in dispute, and are substantially, as follows:
Respondent is the duly elected, qualified and acting county treasurer and ex-officio tax collector of Benewah County, Idaho. June 21, 1947, appellant filed a petition for writ of mandate to compel respondent, in her official capacity, to allow him to redeem the Southwest Quarter of the Northeast Quarter, Section 32, Township 46 North, Range 2 West Boise Meridian, from tax deed made to said county March 14, 1936, as a result of appellant's failure to pay taxes on the above described land for the years 1930 to and including the year 1946. Appellant purchased the property from Benewah County by tax deed June 14, 1930, thereby becoming the record owner thereof. June 20, 1947, appellant applied to respondent for a statement of the taxes, penalty, and interest which had accrued for the year 1930 and subsequent years, to and including the year 1946. Respondent thereupon made application to the county assessor to place a value on the property for assessment purposes for the years the property had stood in the name of Benewah County, and the assessor placed a value of $40.00 for each year; that appellant then demanded that respondent extend the tax roll for the year 1930 to and including the year 1946, and determine the amount of taxes, penalty, interest, and costs due said county. Respondent furnished appellant with a statement in the amount of $55.92. Thereupon appellant tendered to respondent said amount in cash, and demanded that respondent issue to him a redemption deed to the property. Notwithstanding said offer and demand by appellant, respondent refused and still refuses to accept said taxes, penalty, interest, and costs accrued against the property for said years, and refused and still refuses to execute to appellant a redemption deed to said property. An alternative writ of mandate was issued, time fixed for hearing, at which time respondent appeared and moved to quash the writ and dismiss the proceedings "for the reason that admitting all the facts stated in the Petition for Writ of Mandate to be true, the Petition does not state facts sufficient to entitle the plaintiff to a Writ of Mandate relief prayed for or for any relief." Thereafter an order quashing the writ, and judgment dismissing the proceedings were entered, from which order and judgment this appeal was taken.
Appellant assigns seven specifications of error, which we do not deem necessary to discuss separately in view of the conclusion reached, as will hereinafter appear.
The writ of mandate was the proper remedy (Sections 13-301 to 13-314, I.C.A.; State v. Stuart, 41 Idaho 126, 238 P. 305), and the petition stated facts sufficient to withstand the assault of the motion to quash the writ.
There is but one question necessary to be decided on this appeal, viz., whether sec. 61-1023, I.C.A., as amended by Chapter 101, Sess. Laws 1935, or whether said section as further amended by Chapter 165, Sess. Laws 1947, applies to the facts herein.
It will be remembered that the county became the owner of the property herein involved by tax deed dated March 14, 1936, and, further, that the amendment to sec. 61-1023, I.C.A., by Chapter 101, Sess. Laws 1935, was in effect at that time.
We think the correct principle to be applied is that property subject to redemption, and time of redemption should be governed by the law in effect at the time the county obtained title to the property. Under the amendment to sec. 61-1023, I.C.A., by Chapter 101, Sess. Laws 1935, it is provided: "61-1023. Redemption. — The property described in any delinquency entry may be redeemed from tax sale by the owner thereof, or any party in interest, on or after the fourth Monday of January after, and within three years from the date thereof, or until tax deed is issued to the county, and thereafter and up to the time * * * a contract of sale thereof is entered into by the board of county commissioners, * * * or the property has been transferred by county deed, by paying to the county treasurer the amount of the original tax or taxes for which the property was sold, together with the penalty and interest thereon, and also the original amount of all unpaid taxes levied or assessed against the said property at the time the right of redemption expired, together with penalty and interest thereon, and also by paying the taxes for the year or years since the date of issuance of tax deed to the county, together with penalty and accrued interest thereon. All taxes accruing against such property subsequent to the issuance of deed to the county shall be extended upon a valuation to be given by the assessor, upon application of the treasurer, and the taxes shall be computed according to the authorized levies for the year or years to be extended. Upon payment to the county treasurer of the amounts required to be paid as herein provided, the county treasurer must issue a redemption deed to the redemptioner."
In construing the above provisions attention is called to the case of Lawrence v. Defenbach, 23 Idaho 78, 128 P. 81, and cases therein cited; 51 Am.Jur. p. 971, sec. 1126.
The county was still the owner, subject to right of redemption of the property herein referred to, at the time application was made by appellant to redeem the property, and no contract of sale thereof had been made by the board of county commissioners, therefore appellant was entitled to a redemption deed as provided by said Chapter 101, Sess. Laws 1935, by paying to the county treasurer the amount of the original tax or taxes for which the property was sold, together with the penalty and interest thereon, and also the original amount of all unpaid taxes levied or assessed against the property at the time the right of redemption expired, together with penalty and interest thereon, and also by paying the taxes for the years since the date of issuance of tax deed to the county, together with penalty and accrued interest thereon.
Chapter 165, Sess. Laws 1947, amending sec. 61-1023, I.C.A., is not retroactive. Section 70-101, I.C.A., is as follows: "No part of these compiled laws is retroactive, unless expressly so declared."
Discussing the rule of statutory construction, and quoting from 59 C.J., p. 1159, sec. 692, that author uses the following language: "Retrospective or retroactive legislation is not favored. Hence, it is a well-settled and fundamental rule of statutory construction, variously stated, that all statutes are to be construed as having only a prospective operation, and not as operating retrospectively. It is equally well settled as a fundamental rule of statutory construction supported and established by numerous judicial decisions that statutes are not to be construed as having a retroactive effect. Both the above statements and rules are of course contingent upon the absence of any words expressing a contrary intention, or, more specifically, unless the purpose and intention of the legislature to give them a retrospective effect clearly, expressly, plainly, obviously, unequivocably, and unmistakably appears, or is clearly, or as has sometimes been stated in instances where the subject matter was under consideration, distinctly, undisputably, manifestly, most positively, most explicitly, plainly, unambiguously, unequivocably, or unmistakably, or shown, by express declaration or command, or by a very clear, fair, necessary, unavoidable or unequivocable implication. In every case of doubt, the doubt must be solved against the retrospective effect and in favor of prospective construction only. Where a statute is expressly or by clear implication made retroactive to a certain extent or for a certain purpose, the courts will not by construction give to it a retroactive operation to any greater extent or for any other purpose." See, also, 50 Am.Jur. p. 494, sec. 478.
The court erred in sustaining the motion to quash the alternative writ of mandate and dismissing the proceedings. The cause is ordered reinstated, and respondent be required to make due return to said writ, and such further proceedings be bad as herein indicated. Costs to appellant.
GIVENS, C.J., and HOLDEN, MILLER and HYATT, JJ., concur.