State ex rel. Lott v. Brewer , 64 Ala. 287 ( 1879 )

BRICKELL, C. J.

The 74th section of the revenue law of 1868 provided, that when real estate, exposed to public sale for the payment of taxes, would not command a bid sufficient to cover taxes, interest, penalties and costs, the tax-collector should bid off the same in the name of the State, and make a certificate of the purchase thereof to the State, which should be delivered to the auditor. — Pamph. Acts 1868, p. 320. The revenue law’ of 1874-5 (Pamph. Acts, p. 28) contains the same provision. On the books of the auditor of public accounts, each tax-collector is charged annually with the entire assessment of taxes it is his duty to receive, collect, and pay into the State treasury, and is credited with all payments made by him; with errors in assessment, when properly ascertained; with such taxes as may not be collected because of the insolvency of the taxpayer ; with the compensation he may pay the assessor, as it is fixed bylaw, and with his own compensation. The county taxes are not shown by the assessment, and the auditor is not charged with any duty in reference to them. They are levied by the Court of County Commissioners, on the assessment made by the State, and are payable by the collector into the county treasury.

The first and principal point of contention between the parties is, whether, when lands are bid in by the collector for the State, under the statutory provisions to which we have referred, the collector is entitled to a credit, in the settlement of his accounts with the auditor, for the taxes due the county, the interest thereon, and the accruing penalty, which are included in the bid he is required to make ; in other words, whether the State, as a purchaser, is bound to pay so much of the sum bid as is not due to it, for the taxes assessed, the interest, penalty, and costs.

In the consideration of this question, the relations counties bear to the State must not be overlooked, but kept steadily in view. They are mere local subdivisions of the territory of the State, created by the legislature in the manner, and under the limitations of the constitution as to geographical extent, having no power or authority except that which is expressly conferred. The whole purpose of their creation is with a view to the policy of the State, to advance political organization and civil administration, and the immediate local interests and convenience of the people residing within the territory assigned to them. Whatever of power may be exercised by the different or all the departments of the local government which, may be ordained, is the power of the State, delegated to the county. A limited power of taxation, for local purposes and advantages, is vested in some designated tribunal. It is but a parcel of the power of taxation residing in the State; is in part exercised by the State, through the appointed agency ; and, except in the purposes to which the revenues derived by the exercise of the power may be applied, there is but little room for distinguishing between State and county taxation. The power conferred, as between the county and State, may be at any time withdrawn, or modified, or altered at the legislative wilL The taxes levied for county purposes, while in process of collection, or after collection, may be withdrawn from the county, or from its treasury, and appropriated as the legislature may direct. There can be no ground for complaint- — -the State is not dealing with an individual, nor with a corporation, having or claiming adverse rights. It is simply in the pursuit of its own policy, adapting that policy to publie necessities and exigencies, as may be deemed most promotive of publie rights and interests.

The idea that seems to pervade the elaborate argument of the counsel for the relator, that it would be manifest injustice for the State, becoming the purchaser of the lands at a sum which embraces the county tax, as well as the State tax, to withhold from the county the county tax, is more specious than solid. The State, by the purchase, simply proposes self-protection against the delinquency of the tax-payer; becoming a purchaser on the same terms, and acquiring the rights of an individual purchaser; not cutting off the prior title, except upon the conditions, on which it would be barred and cut off if an individual were the purchaser. Protection— the full measure of protection to which the State is entitled— the delinquency of the tax-payer would not be fully cured— unless the purchase embodied all taxes the sovereignty had imposed, and which were a lien on the lands. The State and county tax are alike the burdens and impositions of the sovereignty, which it is public policy should be borne and discharged impartially.

It is, doubtless, within the legislative competency to direct and require, when lands are sold for the payment of taxes, and bid in by the State, for a sum equalling and discharging the State and county tax, that from the treasury of the State the eounty tax shall be paid, leaving the State to derive indemnity from the land, or from its redemption. Sueh a direction or requisition, imposing on the State a liability for its own taxes, to an agency of its own creation, must be clearly expressed, or the result of necessary implication. It can not be deduced from a construction which would be given statutory provisions, if the relations of the State and county were different, and the county had an inherent, independent right to the tax levied for its benefit, not subject to the legislative control and will. Statutes, general in their terms, can not divest or diminish the rights or prerogatives of the sovereign, nor impose upon it liabilities; and they are not so interpreted, unless that idea be clearly and distinctly expressed, or is matter of necessary implication. Upon this foundation rests the maxim, Nullum tempus occurrit regí; and the general rule, that the crown is not bound by a statute unless expressly named.

A careful examination of the revenue laws of 1868, or of 1874-5, or as now embraced in the Code of 1876, will not justify the inference, that the legislature intended to render the State liable as a purchaser to pay the county taxes on land of which it was compelled to become a purchaser, or leave all taxes, State and county, unpaid and unsecured. While such liability may not be disavowed in express terms, or expressly excluded, there are no words expressing it, and it is inconsistent with the entire scheme and system the laws prescribe. The redemption of such lands is through the judge of probate of the county in which they are situate; in which the taxes were assessed and levied, and the sale made. Upon redemption, it is his duty to pay to the auditor of the State the proportion of the redemption money belonging to the State, and to pay into the county treasury the proportion belonging to the county. If the State is liable and bound to pay the county tax, constituting a part of the sum bid at the sale, the entire redemption money would, of course, be payable to the State — in it the county could have no right or interest. The redemption of lands sold for the payment of taxes, whether the State or an individual has become the purchaser, is in the' nature of a re-purchase — or, rather, the liberation of the lands from the conditional purchase, which, by the lapse of the statutory period, would become absolute and unconditional, cutting off and barring the prior title. The purchaser, who has parted with the original purchase-money, is entitled, as matter of right, to the redemption money; not only because he has parted with the original purchase-money, but because it is his conditional estate which is destroyed.

The theory and idea of the statute is, that the State is the purchaser of the lands, taking title in its own name — holding it as security for payment of both State and county taxes. When redemption is made, and there can be made a separation of the interests of the State and county, consolidated by the purchase merely for public benefit, the separation shall be made; the county receiving a share of the money, the equivalent of its share of the sum bid at the sale, the remainder being paid to the State. A duty resting upon the State, to pay the county tax, merely because it becomes the bidder and purchaser, as matter of necessity, for public advantage, to prevent its revenue laws from being nullified by the delinquency of the tax-payer, and the unwillingness of individuals to become purchasers, can not be deduced from these statutory provisions. It would render them inharmonious and inconsistent.

There are other provisions of the statutes, referred to in the argument of the Attorney-General, which also exclude any such idea; but we will not protract this opinion by a reference to them. The City Court properly ruled, that the relator was not entitled, in the settlement of his accounts as tax-collector, to a credit for the county tax, or the interest, or penalties thereon, levied on lands which he had sold, for the payment of taxes, and which were bid in or purchased by the State.

Such a credit was allowed the relator, by a predecessor of the former auditor, in the settlement of his accounts for the taxes of the years 1873 and 1874 This credit was not allowed until the 27th July, 1876; and, of consequence, the correctness and effect of its allowance is governed by the revenue law then of force, and not by that of 1868, which had been repealed. The relator has been tax-collector of the county of Mobile since 1870; and it seems his accounts have been since running and unsettled. The present auditor insists this credit was allowed erroneously, and refuses to recognize or allow it as relieving the relator, to its amount, from liability for State taxes he may or ought to have collected during the years 1873 and 1874 Whether the present auditor is not bound by the action of his predecessor, and whether the relator has not an absolute, unqualified right to the credit, though it was allowed him erroneously, is the next point of contention.

We do not enter on the inquiry, as to the power of the auditor to restate accounts which his predecessor had audited and stated; nor his power to revise and reverse the action, as it is termed in the argument of counsel, of his predecessor. These questions were considered and decided, after deliberation and careful examination of authority, in Weaver v. Brewer, 61 Ala. 318; and we are content to abide the conclusions then reached.

It is the duty of the auditor to audit and adjust the accounts of all public officers, who collect and receive any part of the-public revenue; and when he makes an adjustment of such accounts, it is esteemed by the statutes as prima facie correct. In effect, it is placed upon the footing of an account stated between individuals, so far as he may allow credits to the officer; and as charging the officer, it is prima facie, or presumptive evidence of his liability. A successor in office of the auditor, discovering errors or omissions, not mere errors of calculation, or errors patent on the face of the accounts, can not, by correcting the entries on the books of the office, affect the value as evidence of the audit and adjustment of his predecessor. It remains prima facie evidence of its own correctness, and the onus of disproof rests upon the party— the officer or the State — averring that it is infected by error. Weaver v. Brewer, supra. The mistake of law, or of fact, whichever it may have been, that induced the auditor to enter this credit, does not conclude and bind the State. No higher dignity, or greater value, can be claimed for it, than would attach to an account stated between individuals. When mistake, error, or omission, is shown to have vitiated an account stated, the courts do not hesitate tó reopen and rectify it. The laboring oar is on the party alleging mistake, and proposing to reopen : the presumptions are in favor of correctness. When mistake, or inaccuracy, is made plainly to appear, these are corrected; otherwise, the mere inadvertence of parties dealing in the utmost good faith, might become the source of positive injustice. — 1 Story’s Eq. § 523.

But, it is urged the State is estopped from claiming a correction of the mistake, because the relator, relying upon its allowance, paid the county tax into the county treasury. Estoppels against the State can not be favored. They may arise from its express grants (Magee v. Hallett, 22 Ala. 699); but can not arise from the laches of its officers ; not on the notion of extraordinary prerogative, but upon a great public policy.' — U. S. v. Kilpatrick, 9 Wheat. 735. All whd deal with the officer or agent of the government, must inquire at their peril into the extent of their power. The law — the public law, of which courts and individuals are bound to take notice, and of which no party can claim ignorance — is the source of the power of the auditor, defining it with clearness and certainty. He is not clothed with the power of creating any claim binding on the State; and to sanction and support' any credit he may allow in the settlement of the accounts of any officer charged with the collection of the public revenue,' the law entitling him to the credit must be shqwn. — Floyd Acceptances, 7 Wall. 676; Johnson v. U. S., 5 Mason, 441. It was not within the scope of the powers of the auditor to allow the credit; and the act of no agent, public or private, not within the scope of the agency, can bind the principal by way of estoppel, no matter how much reliance may have been placed upon it.

The claim of the relator for fees for levying upon and making sales of the lands can not be sustained. The State is never liable for costs or fees, unless expressly given against it by law; and the statute declares the only costs or charges which the State shall pay on tax sales, not including these fees. — State v. Keims, 41 N. H. 238.

We do not deem it necessary to discuss separately the remaining assignments of error. They do not present questions of difficulty; and having examined them, we are content with the rulings of the City Court to which they are directed. The result is, on the assignments of errors by the relator, Lott, the judgment of the City Court is affirmed; on the cross-assignment by the appellee, Brewer, the judgment is reversed and remanded.