Paine v. Spratley , 5 Kan. 525 ( 1870 )

By the Court,

Saeeord, J.

This is a proceeding brought to reverse a judgment of the distr-ict court of Leavenworth county, whereby the defendant in error recovered from the plaintiffs in error certain real estate, which, is described as follows, to-wit: Lot fifteen, in block twenty-four of Clark' and Pees’ addition to the city of Leavenworth. There are several allegations' of error, which are insisted upon as furnishing sufficient grounds for a reversal, as prayed for, and to these we shall direct attention as we proceed. It appears that on the trial below, the plaintiff, now defendant in error, showed title to the property in question from the government down to, and in Samuel P. Pew. He then claimed to show a sheriff’s sale of Pew’s title to Clinton Cockerill, and a conveyance by Cockerill to himself. In order to establish the fact that Pew’s title had been legally passed to and vested in Cockerill, as aforesaid, the plaintiff gave in evidence a judgment which was recovered by Clinton Cockerill against Samuel P. Pew and Jeremiah Clark, in the district court of Leavenworth county, on the 4th day of April, 1862, for the sum of $7,628.33 and costs. To the introduction of this testimony there was no objection.

The plaintiff then offered in evidence an execution which recited the judgment above referred to, except as to amount (and this was stated in the execution to be $7,628), together with the sheriff’s return as to what he had done under it, and the accompanying documents thereto attached. The return, among other things, showed a levy upon the lot in question in this ease. It then goes on to recite relative to the appraisement thereof, “ and after having so levied it by virtue of this execution, and on the 17th day of June, A. H. 1863, caused all of the foregoing described properly * * * to be appraised upon actual view of the same, by Gr. II. Oilman, A. O. Bangs and ’William Cranston, three disinterested householders, residents of said county of Leavenworth, they having first been duly summoned and sworn by me to appraise tbe same impartially, (said, appraisement herewith returned attached to this execution and marked A.” The appraisement itself, after the entitling of the cajise recites as follows: “We, G. IT. Ortman, A. O. Bangs and William Cranston, disinterested householders residing in Leavenworth county, State of Kansas, having been by A. W. Repine, under sheriff of said county of Leavenworth, duly sworn to appraise the hereinafter described property levied upon in the above entitled cause, after first being sworn to return that upon actual view of said property, we find, etc.”

The following certificate also appears to have been entered upon the appraisers’ return:

“ State of Kansas, 1 Leavenworth County,

“I do hereby certify that the within named G. II. Ortman, A. O. Bangs and Wm. Cranston, are disinterested householders, residents of Leavenworth county in said state, and were by me duly summoned and sworn to value and appraise the within described property impartially, this the seventeenth (17th) day of June, A. D. 1863.

“ Alexander Repine, Sheriff",

“ by A. W, Repine, Under Sheriff.”

The lot in question was not sold on the execution above referred to, by reason of a want of bidders, as it would seem, and the same was duly returned. Whereupon another execution was issued, reciting the judgment, the fornfer execution, ánd what was done under it, to-wit: The levy and appraisement, and directing the sheriff to sell the property so levied upon and appraised, including the lot in controversy. That the officer proceeded regularly upon the second execution in respect of all things therein required of him and sold the said lotto Clinton Cockerill, there seems to be no question.

This last mentioned execution, with the return of the sheriff’s notice of sale, etc., thereto attached, was also offered in evidence, together with the first execution and the return, and documents thereto attached, as before stated. The defendants objected to their reception for the reasons: First, that the first-mentioned writ did not recite such a judgment as had been given in evidence, and, Second, substantially that there had been no regular and lawful appraisement of the property sold by reason of the omission of the words “upon actual view” in the oath of the appraisers, as referred to in the sheriff’s return, and in his certificate endorsed on the appraisement itself. But the court overruled the said objections of defendants, and allowed the said writs of execution, and notices of sale and returns, and documents thereto attached, to be admitted and read in evidence; and to this ruling the defendants excepted. The plaintiff then gave in evidence the record of the confirmation of the sale made under and by virtue of the executions and levy aforesaid, and also a deed from the sheriff to Clinton Cockerill of the lot in question, made in pursuance of such sale. Then followed the offering of the deed from Cockerill to defendant in error. The question now is: Bid the court below err in overruling the objections of the defendants, as above stated?

Evidence: Record of Legal Proceedings. This question also involves a second, which may be stated as follows: Was it competent for the defendant below to attack the proceedings had in the district court in the case of Cockerill v. Few, et al., on the ground and by reason of the alleged defects, in the collateral way in which they sought to do it in this case?

Id: Impeaching the same Collaterally. As we understand, the law, the answer to this question must he m the negative. The limitation upon the extent of the inquiry, where the proceedings of courts of general jurisdiction are brought collaterally before other courts, is thus stated in the authorities: “ When a court has obtained jurisdiction, it has a right to decide every question that occurs in the cause; and whether its decisions be correct or not, its judgment, until reversed, is regarded as binding in every other court.” And again: “If the jurisdiction of the court attaches to the subject matter, the proceeding cannot be examined in a collateral way in another court.” 2 Peters’ S. C. Rep., 157.

Id: Proceeding Subsequent to judgment. The same rule seems to have obtained and been followed in cases where proceedings subsequent to judgment have been collaterally drawn in question. Thus, in 8 Johnson’s Report, 361, it was held that in an action of ejectment against a purchaser at sheriff’s sale, the regularity of the execution could not be questioned, and that if such execution were voidable it might be so held, only at the instance of the party against whom it issued. See also, to a similar purport, 13 Johnson, 96; 16 Johnson, 537; 14 O. St., 80.

So in this case we see no reason why.the same doctrine should not apply to an irregularity occurring in the proceedings under and by virtue of the execution, if indeed it be true that any such did occur. We shall therefore hold that, inasmuch as the jurisdiction of the court over the subject matter and the person, in the case of Cockerill v. Few, et al., appeared on the face of the proceedings, the errors or mistakes of such court, if any were committed, and the errors or irregularities of the kind and character which are claimed to have existed in the proceedings of the sheriff subsequent to the judgment therein, and which are shown to have been passed upon and approved by the court, cannot' be taken advantage of, corrected, or even examined, when brought up collaterally, as was attempted to be done on the trial of this case below. But even supposing there had been a direct proceeding instituted by the defendants themselves, or their lawful representatives, for the purpose of setting aside the execution and the doings of the sheriff under and by virtue thereof, in the case of Cockerill v. Few, el al., for the reasons which have been urged against their validity hero, we are satisfied that they must have been held as substantially correct, or at least in a condition to be made so withdut any stretch of power on the part of the courts, or in any manner prejudicing the rights of the parties concerned.

Amending an Execution. Thus, in the matter of the variance between the first execution and the judgment upon which it purported and was claimed to have been issued, as to the amount recovered, this was clearly such a variance or mistake, as may always be corrected upon presentation to the courts, and therefore ought not to be held to vitiate the proceedings.

Appraisement op 11^ lístate, And in relation to the appraisement, we think j. j. / p. was a good one, inasmuch as the record fairly shows, that there was a substantial compliance with the spirit of the law, requiring it to be made, in each successive step taken therein, and also that the rights of the parties in respect thereto, were carefully guarded. It was made by three disinterested householders, residents of the county, in which the lands levied upon were situated. The appraisers were duly sworn to impartially appraise the property so levied upon, and they did so appraise it upon actual view. Certainly nothing more could have been done or accomplished to secure the just rights of the parties, by a more strict compliance with the law, admitting for the sake of the argument, that the oath of the appraisers, as administered, did not contain the words, “upon actual view.”

But looking to the return of the sheriff, the appraisement itself, and the certificate endorsed thereon, we cannot say that these words were omitted from such oath. The return of the sheriff says that the appraisers were duly summoned and sworn. The return of the appraisers recites that they, having been duly sworn to appraise, * * * * do return, etc., and the certificate endorsed on such return reiterates the first statement of the sheriff. If, then, these statements are each and all true, we think it only fair to conclude that everything which the law requires to be done in the administering of the oath, was so done. The word “duly” in such a connection covers all of the requirements of the law, and its meaning ought not to be narrowed down to the extent claimed by the counsel for the plaintiff in error. But it is unnecessary to pursue this discussion further, and we shall leave this part of the case, with the single remark that we find no error in the rulings of the court upon the evidence offered by the plaintiff below.

The next and perhaps by far the more important question in this case, arises upon the refusal of the court below, to allow certain special tax deeds, as they are called, to be read in evidence, for and on behalf of the three defendants, now plaintiffs in error. As a foundation for the introduction of such testimony it was admitted'that the city of Leavenworth “was, during all the times when the proceedings were had in relation to the special taxes hereinafter mentioned, and ever since has been an incorporated city of more than fifteen thousand inhabitants.” The defendants then offered and read in evidence ordinance number 90 of said city, approved June 24th, 1863, and while the affairs of the city were being conducted under the provisions of chapter 46, of the laws of 1862, relating to the levy of special taxes, for the opening and improving of streets and alleys, etc., and in which the sale and conveyance of lands for thp non-payment of such special taxes was provided for. .They then offered as evidence what purported to be a special tax deed, for the lot in controversy, executed under said ordinance, and purporting to convey said lot to one of the defendants, A. A. Iliginbotham. The said special tax deed bore date as of February 11th, 1867, and was recorded in the office of the register of deeds, in and for the county of Leavenworth, on the 2d day of March, 1867. They also offered a second deed of like character, which purported to convey the same lot to Henry and Daniel Shire. The last mentioned tax deed was executed under said ordinance, July 29th, 1868, and recorded in the office of the register of deeds aforesaid, July 31, 1868. Both of these special tax deeds, upon objection being made thereto by the plaintiff below, were ruled out by the court and not allowed to be read as testimony in the case. "YYas such ruling erroneous?

Special Tax DoodB. It is claimed on behalf of the defendant in error that while the council of said city of Leavenworth, at the time of the passage of said ordinance number 90, were authorized by law to provide for the levy and collection of special taxes, for the purposes and in the cases intended to be covered by the provisions of said ordinance, they did not possess the power to provide for the sale and conveyance of lands for and by reason of the non-payment of such special taxes as was attempted to be done, and that by reason of such want of power in the said city council, the tax deeds above referred to, were wholly void and conveyed no title.

Before proceeding to examine the questions here presented, it seems proper for us to call’ attention to certain general principles, respecting the powers of municipal corporations, which are regarded as well settled, and which may be stated as follows:

Corporations, Municipal: Powers. Such corporations possess and may exercise those powers which are granted m express terms, also those necessarily implied or necessarily incident to the powers expressly granted, and lastly those which are absolutely indispensible to the declared objects and purposes of the corporation. In this connection it may also be stated, that it is regarded as a settled principle of law, that where there is a fair and reasonable doubt a» to the existence of a power in such corporation, the courts will not uphold or enforce its execution.

Leavenworth City: Its Powers. In view of the principles thus expressed, we . 1 . _ may now inquire as to the power or the city council of Leavenworth, to enact those provisions of the ordinance before referred to, which related to and attempted to authorize a sale and conveyance of real estate for special taxes. As to those provisions of said ordinance which provided for the levy of such special taxes, there is, as above intimated, no question; and indeed, there could be none, since the authority to enact them was expressly given by subdivision 22, section 1, of article 2, chapter 46, Laws 1862. But neither in the said subdivision 22, nor in any subdivision following, or immediately preceding it, or in which the subject of special taxes is treated of, is there to be found any provision which expressly conferred upon the said city council the right or power to provide for the enforcement of the collection of such special taxes, in the manner in which it was attempted to be done in this instance. This will appeal' from a simple examination of those portions of the statute referred to, and the fact or conclusion thus arrived at, is naturally suggestive, of two further inquiries : First, was such power anywhere else expressly conferred? and, Second, if not expressly, was it otherwise given, here or elsewhere ?

Power to Sell Lots on Special Tax. In our opinion, the answer to the first inquiry must be in the negative. It will be seen,. upon examination, that by virtue of subdivision two of the section, article and chapter before mentioned, the city council of Leavenworth had power “ to provide for the sale of real estate for the non-payment of any taxes due thereon,” and that this was the only provision relating to the subject of such sale for taxes which was in force at the'time of the passage of the said ordinance number ninety. We have carefully considered the point, and as a result feel bound to say that we think that the word “taxes,” as here used, has no reference whatever to the special taxes provided for in subdivision twenty-two, but that it is applicable to, and relates only to the taxes for general and special purposes mentioned in the preceding subdivision one. Several grounds for argument in support of this proposition are suggested, to some of which, we may briefly call attention.

Constitutional provisions. And first: The power of cities in relation to the levying of taxes and their power of assessment, or of levying special taxes, are treated of as separate, distinct and independent powers whenever mentioned in either the constitution or the laws of the state; see section five, article twelve of the constitution, and subdivisions one and twenty-two above referred to, as illustrative of this point. This fact, of itself, goes far in showing, that when the word taxes is used in any law, it is not meant thereby to include assessments or special taxes. But this is not all. There are radical differences existing between taxes for general and special purposes, and assessments for street improvements; and they are made to operate differently, and upon different objects. For example: the taxes referred to are authorized to be levied “on the value of all the taxable property within the limits of any city,” etc., while such special taxes are only allowed to be levied and collected from the real estate adjacent to the improvements made. It is also to be observed that taxes for general purposes affect every tax payer within the jurisdiction of the taxing power, while on the other hand, these special taxes may and do affect but few, at least comparatively.

Charter Powersin special taxation. But we have still stronger evidence of the truth of the position we have here taken, in the fact that long after the passage of the act to which reference has been so often made above, the legislature of the state saw fit to extend the power of cities in relation to the sale of real estate for non-pay-i ment of taxes so that it might include the power to sell for the non-payment for special taxes. This was done by express enactment, \L. 1864, Chap. 69, § 6,] which amended the law of 1862 containing the provisions under consideration. If such power was conferred by subdivision two of section one, article two, chapter forty-six, Laws 1862, then why was it again conferred in chapter sixty-nine, Laws 1864? It is plain that at least in the-opinion of the legislature of 1864, the power of sale and conveyance of real estate for the non-payment of special taxes for the purposes named, did not exist under any express- provision put in force by previous legislation. Such view accords with our own, as above stated, and this brings us to the consideration of the second question before proposed. And first, in this connection is suggested the remark, that in the point last made, is to be found an argument directly applicable here, and one which is entitled to no little weight. But there are arguments other than this which bear upon this question, and which to our minds are decisive of it.

Power to Sell Lot for Special Tax. Prom what has already been said, it seems to follow that the power which the city council of Leavenworth assumes to exercise in the ordinance referred to, and to which objection is taken, if conferred at all, was so conferred by subdivision 22 before mentioned, and that too by implication, or as a necessary accompaniment of the power therein expressly granted. This was substantially “the power to levy and collect special taxes, for the improvement of streets and alleys on adjacent real estate in manner as should be provided by ordinance.” It has been repeatedly held by the courts of other states, that the power to levy and collect taxes does not carry along with it the power to enforce such collection by a sale and conveyance of the property upon which levy has been made. [20 Iowa, 450; 23 id., 410; Blackw. on Tax Titles, Ed. ’64, 448; 25 Iowa 170.] One ground (and perhaps the most important and valid, and, in our opinion at least, a sufficient one) upon which these decisions rest, is that such power of sale is not a necessary incident to the power to “levy and collect,” nor indispensible to the objects and purposes of a municipal corporation. The power to levy and collect can be exercised and enjoyed, and the objects of the corporation secured without the power of sale. Thus, in case this way of enforcing the collection of taxes or assessments is withheld or unauthorized, such corporation may provide another method, by means of which the collection may be secured, as for instance, by judicial proceedings. [23 Iowa, 410; 25 id., 170; Blackw., 448, and authorities cited.] But in this instance as already stated, the grant is of authority to levy and collect in manner as should be provided by ordinance. Do these words, in manner, etc., change the doctrine as held in the authorities above quoted, as applicable to the case under discussion? "We think not, and certainly not to the extent of investing the city council with power to provide for the sale of the real property of delinquent tax-payers. Another argument in favor of the position that no power of sale is conferred by subdivision 22, is to be drawn from the fact that while such power is expressly conferred in subdivision 2, in respect of general taxes, nothing whatever is said about it as relating to special taxes, either, in said subdivision 2, or in subdivision 22, which authorizes their levy, or elsewhere, such omission it would seem fair to presume, was intended, and especially when considered in the light of subsequent legislation. But it is perhaps unnecessary to pursue this discussion, although other arguments still are suggested as being pertinent to the points raised. Enough has already been advanced, as we think, to justify us in saying that it has been shown that the city council of Leavenworth, acted without express authority of law in the passage of those provisions of ordinance number 90 which attempted to provide for the sale and conveyance of real estate for the non-payment of special taxes for the improvements of streets and alleys. In our opinion it has also been shown that such power of sale and conveyance was not necessary to the exercise and enjoyment of any other power expressly granted, and that it could not therefor be held to exist by necessary implication. "We have, perhaps, gone much farther than was necessary in attemptiug to demonstrate the truth of the foregoing propositions, inasmuch as the rule of law, stated in the early part of this discussion, would only make it imperative upon us to discover that fair and reasonable doubts existed as to the power of the city council in the premises to which objection is urged in order to enable us to declare against such power. It is to be hoped, however, that even in this view our investigation, as showing more than such fair and reasonable doubts, is not devoid of interest. A single remark may be made with respect to the effect which chapter 69, of the laws of 1864, might be supposed to have upon uhe questions involved. There is, in our judgment, no room for argument upon this point. The ordinance in question was passed long .before said chapter 69 took effect, and therefore it could not be held to have been supported by, or enacted in pursuance thereof. From the premises or conclusions as above stated, it seems to follow that the tax deeds which were executed in pursuance of said or-ordinance and offered in evidence on the trial below were absolutely void, for the reason that they were so executed without sufficient authority of law. Such being the case they were properly ruled out by the court, unless the statute of limitations in respect of tax deeds [§ 116, Chap. 107, L. 1868] should be held, as operating to prevent such objection to the deeds from being made available. But it has already been decided at the present term of this court, that a void tax deed will not start the statute of limitations to running in favor of the holder thereof. See case of Taylor v. Miles, [ante, p. 498,] to which reference is here had, and it makes no difference as to the grounds upon which such tax deed is shown to be void. It is enough that it is so. We therefore think that there was no error in the rejection of the special tax deeds offered in evidence by the plaintiff in error on the trial below. Judgment affirmed.

All the justices concurring.