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MAISH V. ARIZONA.
APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA.
No. 89. Submitted October 29, 1896. - Decided December 21, 1896.
In proceedings in Arizona to enforce the collection of taxes assessed upon
real estate, a printed copy of the delinquent list, instead of the original filed in the office of the county treasurer, was offered in evidence. To the introduction of this objection was made, but not upon the ground that the original was the best evidence, or that the copy offered was not an exact copy. In this court it was for the first time objected that the list, as filed in this case, was not a copy of the original. Held, that this court would not disturb the judgment of the court below on
such technical grounds, apparently an afterthought. For the hearing of the objections of the appellants against the assessment
of the tax the court convened on the 14th of March. The notice published by the tax collector was that the sale would begin on the 20th of March. On March 15 a judgment was entered directing the sale on the 20th of all the property, to which no objection had been filed. As to those parties making objections (and included among them were the present appellants) the case was set down for hearing at a subsequent day, and a trial then had; but the judgment was not entered until the 7th day of May, 1892, and the order was to sell on the 13th day of June. Held, that the purpose and intention of the act being the collection of taxes, but only of such taxes as ought to be collected, and judicial determination having been invoked to determine what taxes were justly due, the fact that the court took time for the examination and consideration of this question did not
oust it of jurisdiction. In Arizona the delinquent tax list is made by law prima facie evidence that
the taxes charged therein are due against the property, as well the unpaid
taxes for past years as those for the current year. It was the intention of the legislature of Arizona, and a just intention, that
no property should escape its proper share of the burden of taxation by means of any defect in the tax proceedings, and that, if there should happen to be such defect, preventing for the time being the collection of the taxes, steps might be taken in a subsequent year to place them again
upon the tax roll and collect them. The testimony does not sustain the contention that the board of equaliza
tion raised the value of appellants' property arbitrarily and without
notice or evidence. A party in possession under a perfect Mexican grant, that is, a grant abso
lute and unconditional in form, specific in description of the land, passing a certain, definite and unconditional title from the Mexican governStatement of the Case.
ment to the grantee, has a possessory and equitable right sufficient to
sustain taxation, although the grant may not have been confirmed. A court cannot strike down a levy of taxes said to be for the payment of
interest on boods illegally issued in violation of statutory law, without a full disclosure of all the indebtedness, the time when it arose, and the
circumstances under which it was created. To warrant the setting aside of an assessment as unfair and partial, some.
thing more than an error of judgment must be shown, something indicating fraud or misconduct; as matters of that kind are left largely to the discretion and judgment of the assessing and equalizing board, and if it has acted in good faith its judgment cannot be overthrown.
This was a suit in the District Court of the First Judicial District of the Territory of Arizona, sitting in and for the county of Pima, to recover delinquent taxes. Several parties were included as defendants. A decree was rendered May 7, 1892, establishing the taxes and foreclosing the tax liens. The appellants, after a motion for a new trial, carried the case to the Supreme Court of the Territory, by which, on January 17, 1894, the decree was affirmed, 37 Pac. Rep. 370, and thereupon an appeal was taken to this court.
These judicial proceedings to collect delinquent taxes were authorized by statute. Rev. Stats. Arizona, 1887, SS 2684, 2685, 2686, 2687 and 2688. The first of these sections provides that the tax collector on the third Monday of December in each year shall prepare and file in the office of the county treasurer a list of delinquent taxes. Section 2685 requires him on or before the first Monday in February thereafter to publish such delinquent tax list, with a notice that he will apply to the District Court of the county at the next ensuing term thereof for judgment. Section 2686 directs the district attorney, upon the completion of the publication, to file a complaint in the District Court setting forth the fact of the delinquent list, its publication and the notice, and praying for judgment and decree against the property described in said list for the taxes assessed thereon. It further provides :
“The delinquent list shall be prima facie evidence that the taxes therein are due against the property described in said list. Upon said publication and advertisement being made and the filing of said complaint, the said District Court shall
Opinion of the Court.
acquire full and complete jurisdiction over the lands, real estate and property described and contained in said delinquent list for all purposes whatever necessary to enable the said court to carry out the purposes and intention of this act.”
Section 2687 contains certain general provisions in reference to the proceedings. Section 2688 is as follows:
“ The court shall examine said list, and if defence (specifying in writing, the particular cause of objection) be offered by any person interested in any of said property, to the entry of judgment against the same, the court shall hear and determine the matter in a summary manner; without pleadings, and shall pronounce judgment as the right of the case may be. The court shall give judgment for such taxes and special assessments, interest, penalties and costs as shall appear to be due, and such judgment shall be considered as a several judgment against each parcel of property, or part of the same, for each kind of tax or special assessment included therein; and the court shall direct the clerk to make out and enter an order for the sale of such property against which judgment is given, which shall be substantially in the following form.”
Mr. Charles Weston Wright for appellants.
Mr. William Il. Barnes for appellee.
MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
The statute, as will be seen, authorizes any one interested in any of the property to defend against the taxes sought to be charged thereon, “specifying in writing the particular cause of objection,” and requires the court, when such defence is made, to "hear and determine the matter in a summary manner, without pleadings,” and to “pronounce judgment, as the right of the case may be.” The statute also provides that the delinquent tax list is prima facie evidence that the “ taxes therein are due against the property.”
The appellants filed ten objections to the taxes charged
Opinion of the Court.
against their property, one of which was that "said delinquent list as published and filed herein is not a copy of the original.” It appears from the bill of exceptions that on the hearing before the court the printed copy of the delinquent list, and not that filed in the office of the county treasurer, was offered and received in evidence. To the introduction of this printed copy appellants made several objections, but not that the original was the best evidence or should be first offered, or that the printed list was not an exact copy of the original. It would seem from the findings, and the rulings made by the trial court, as well as from the motion for a new trial, that the published delinquent list was treated as though it were the original; and that in the Supreme Court of the Territory was the question for the first time distinctly made that no judgment could be rendered except upon the evidence furnished by the original list. Be that as it may, and conceding without deciding that properly in an action like this the original list should be offered in evidence, nevertheless we are of opinion that the appellants cannot now take advantage of this. They did not in their objections point out wherein the delinquent list was incorrectly published, and they made no objection to the admission in evidence of such published list on the ground that the original had not first been offered or that the published list was different from the original. It might be that in the description of other property, or the taxes charged thereon, there were such mistakes as to defeat the proceedings as to such property, or in reference to their own property and the taxes charged thereon that there was some trifling inaccuracy so as to make it true that the published list was not a copy of the original, but it would not follow therefrom that they were entitled to a judgment. De minimis non curat lex might uphold the publication. As they were called upon in the challenge of these taxes to point out specifically their objections, and as they did not show wherein the published list differed from the original, we cannot assume that the variance, if any there were, was sufficient to affect their substantial rights. While in a general sense it may be true that in such a proceeding the Territory is the plaintiff and is called
Opinion of the Court.
upon to prove its case, yet the presumptions which by the statute attach to the regularity of the proceedings, and the duty cast upon the objectors to specifically point out the defects, forbid our disturbing the judgment upon such technical ground, one apparently an afterthought and not affecting the substantial rights of the appellants.
Again, it is insisted that the court had lost its power to enter judgment by reason of lapse of time. The facts upon which this contention is based are these: Section 2685, which provides for a publication of the delinquent list, requires that the collector append to and publish with the list, in addition to the notice of application for judgment, a notice that on the Monday next succeeding the day fixed by law for the commencement of the term of the District Court the property will be sold. Section 2690 directs the clerk of the District Court to give a duly certified copy of the judgment to the tax collector as the process under which the property is to be sold. Section 2693 requires the collector to attend on the day named in the notice, expose the property for sale, and continue the sale from day to day until all the property is sold, completing the sale within twenty days from the commencement thereof. Section 2687 makes special provisions for action by the court at an ensuing term, but is inapplicable to the questions here presented.
The court convened on the 14th of March. The notice published by the tax collector was that the sale would begin on the 20th of March. On March 15 a judgment was entered directing the sale on the 20th of all the property, to which no objection had been filed. As to those parties making objections (and included among them were the present appellants) the case was set down for hearing at a subsequent day, and a trial then had; but the judgment was not entered until the 7th day of May, 1892, and the order was to sell on the 13th day of June. Now the argument is that as this is a special statutory proceeding its exact terms must be complied with or the court loses its jurisdiction; the effect of which as applied to a case like the present would be that if the objectors present questions which the court cannot conscientiously de