In re Delinquent Tax Roll , 4 Alaska 721 ( 1913 )

JENNINGS, District Judge.

The only point in issue is whether or not due notice was given as required by chapter 69.

The requirement is that notice be given as provided in section 7 of the act in question, and that section may, in the light of the admitted facts in this case, be read as follows:

“As soon as convenient after the completion of the delinquent roll, the city clerk shall, under the direction of the common council, cause to be published in the Empire, once each week for four consecutive weeks, a notice under his hand setting forth that the delinquent tax roll of the real property for the year 1913 has been completed and is open for public inspection, and that on a certain day (naming it) the said roll would be presented to the district court, division No. 1, for adjustment and order of sale.”

Has the city clerk, under the direction of the city council, published any such notice as this? It must be conceded that he has not. True, he has published a notice containing the information mentioned, but he did not do so by or under the direction of the council. The council never directed him to publish any notice that application would be made to the court on October 22d, or any other date, for an order of sale. The council directed him to publish only the delinquent tax roll.

We are not at liberty to say that the publication of the delinquent tax roll was ordered, in order to comply with the statute (chapter 69), for the statute does not make such publication a sine qua non to action by the court. The statute does not require or contemplate any such thing as the publication of the roll, nor does the revenue ordinance No. 124. Of course, if the council chooses, they may order it to be published for some reason of their own.

What object the council expected to accomplish by the publication of the delinquent tax roll we can only conjecture. It may be that the council thought that a publication of the delinquent tax roll would cause the minds of those property owners, who were not willfully delinquent, to revert to the fact that they had'' been remiss in the discharge of their civic duties; it may be that the publication of the delinquent roll was ordered with the idea in view that it would arouse in the minds of those willfully delinquent a sense of shame at being thus pilloried in the public gaze as tax-dodgers. Whatever the object of the council may have been, we are not so much concerned in ascertaining what their purpose was as we are in knowing what they did.

Now all that they did was to order the publication of the delinquent tax roll, a thing which the court knows (although it is not in the record) has been done in the town of Juneau for many years past, long before the statute of 1913 was ever enacted.

The town clerk caused the delinquent roll to be' published, and that is all that he did “under the direction of the council,” for that is all the council has directed him to do. By what authority, then, has he appended to the delinquent tax roll, as published, the notification “that the same will be presented to the district court of the district of Alaska, division No. 1, at Juneau, on the 22d day of October, 1913, for adjustment and sale”? If the council ever directed him to give such notice, there is no evidence of it. On the contrary, he testifies that there is contained on page 287 all the directions ever made by the council. Who fixed the date, October 22d? Not the council; if so, where is the evidence? They might have been willing to fix December the 1st. Who fixed the place, Juneau? Not the council; if so, where is the evidence? Juneau is naturally the most convenient place, .but nevertheless the council might have fixed Ketchikan or Skagway. It is denied that any such notice was directed or authorized by the council. Counsel for the town contends that it will be presumed that the clerk was acting under direction when he published the notice. Even so, that is only a presumption obtaining in the absence of any evidence to the contrary. How can that presumption have any force in the face of the official minutes of the council and of the undisputed testimony of the town clerk?

The situation, then, is this: It appears that the council did not direct the clerk to give notice of application; it did not direct him to fix October 22d as the date; it did not direct him to fix Juneau as the place; it has taken no step, nor directed any step to be taken, looking to a decree by the court.

Where, then, does the court get any jurisdiction to proceed in the matter ? This is a special proceeding depending entirely upon statute, and the statute alone must, be looked to, for, as a court of general jurisdiction, the district court is powerless in the premises. Eooking, then, to the statute, we find that, before this court can take even the first step, the council (not the clerk, nor the assessor, nor anybody else but the'council) must invoke the action of the court by directing a certain notice to be given.

It has been contended that section 15 of ordinance No. 124, reading as follows:

“Sec. 15. Every tax assessed and levied in accordance with, the provisions of this ordinance shall be a preferred lien upon the property so taxed which lien shall be foreclosed and the property sold as provided by section 3, of chapter 69, of tbe Session Laws of tbe territory of Alaska for 1913”

■ — distinctly shows that the council elects to proceed, in the sale of property for taxes, under chapter 69. ■ So it does show that. Then why does not the council proceed that way? It is not the election of the council to proceed that way which gives the court jurisdiction. It is the actual proceeding in the way prescribed which clothes this court with power in the premises.

Counsel for the town directs attention to the provision of the ninth section of chapter 69, reading as follows:

“At sucb bearing tbe duplicate tax roll shall be prima facie evidence of tbe regularity and legality of tbe assessment and levy of tbe tax andi tbat tbe same is unpaid and no objection to tbe valuation of tbe property, tbe manner of tbe assessment and levy of tbe tax, or any of the subsequent proceedings shall be entertained by tbe court which does not affect tbe substantial rights of tbe party interposing tbe objection.”

But that section simply provides a certain course to be adopted by the court, when it has jurisdiction to do anything. It confers no jurisdiction on the court. It says that on the hearing certain presumptions shall be indulged in; but, if the court has not jurisdiction to hear in the first place, there will never be any hearing. The jurisdiction of the court here is challenged in limine.

It is further contended that respondents, by appearing here, have waived all objections to time and place. Even so, they cannot waive the jurisdictional requisite that, before the court can proceed at all, the council must have directed certain things to be done. They cannot by consent confer jurisdiction of the subject-matter. They cannot clothe the town clerk with the power to give the notice; only the council can do that.

I wish I could see some way by which this proceeding could be sustained, for I feel that every citizen should, if able, pay the taxes imposed for the support of the government which protects him, and I feel that he should cause as little trouble as possible in the matter; but notwithstanding that, if a man’s property is to be sold by the superior force of government and against his will, it is that man’s right to have it sold only in accordance with law. In my opinion, a sale of the property of respondents under this proceeding would be null and void, and the purchasers would get no title, and the whole thing could be upset.

The council will have to hold another meeting and give directions to the clerk to publish a notice as by law required; they must fix the date within the limitations of the statute, and the place at which the application will be made, before this court can have any jurisdiction to do anything except to close its door.

The proceeding is dismissed for want of jurisdiction to entertain the same.