Cavanagh v. Shaver , 56 Cal. App. 758 ( 1922 )

I dissent from the order denying a transfer, on the ground that the fifty per cent penalty provided by section 3779 of the Political Code is still applicable to sales for delinquent assessments for the opening of streets under the Street Opening Act of 1889 (Stats. 1889, p. 70). Section 16 of that act provides for the sale of the assessed property in the same manner as is or may be provided for the collection of state and county taxes. It is also provided: "All property sold shall be subject to redemption in the same time and manner as in sales for delinquent state and county taxes; and the superintendent of streets may collect for each certificate fifty cents, and for each deed one dollar. All provisions of the law, in reference to the sale and redemption of property for delinquent state and county taxes in force at any given time, shall also then, so far as the same are not in conflict with the provisions of this act, be applicable to the sale and redemption of property for delinquent assessments hereunder, including the issuance of certificates and execution of deeds."

Section 3779 of the Political Code as it existed at the time of the enactment of the Street Opening Act, supra, provided: "On filing the certificate with the county recorder, the lien of the state vests in the purchaser, and is only divested by the payment to him, or to the county treasurer for his use, of the purchase money and fifty per cent thereon." Section 3780 of the Political Code fixed the time for redemption as twelve months from the date of purchase "or at any time prior to the giving of the notice and the application for a deed, as provided for in section thirty-seven hundred and eighty-five of this code." Section 3785 provided that in order to terminate the right of redemption the purchaser must give thirty days' notice before he applies for a deed, in which he was required to state, among other things, the amount then due. This amount included the fifty per cent authorized by statute (Reed v.Lyon, 96 Cal. 501, 502 [31 P. 619]). The redemption must be made in gold or silver coin (Pol. Code, sec. 3781). "The redemption is effected by the payment of the money, and the taking of the receipt." (Cooper v. Shepardson, 51 Cal. 298.)

It would seem clear that the manner of making a redemption is by payment to or for the purchaser of the amount for which the property was sold, plus fifty per cent and such costs as were authorized by law. Assuming for a moment that the Statute of 1895 revising the whole system of sales and tax redemptions (Stats. 1895, p. 19), containing the express repeal of section 3779 of the Political Code, so affected the Street Opening Act of 1889, that the law of 1895 (page 204), intending in part at least to make the new system of collecting taxes inapplicable to the collection of delinquent assessments under the Street Opening Act of 1889, is the only basis for charging the fifty per cent penalty, the question is whether this and the saving Statute of 1895 (Stats. 1895, p. 204) still required the payment of the fifty per cent penalty for redemption. That statute provides (Stats. 1895, p. 204): "All sales, and redemptions after sale, of any real property upon which the assessment levied and assessed to pay the damages, costs, and expense for or incident to laying out, opening, extending, widening, straightening, diverging, curving, constructing, or closing up, in whole or in part, any street, square, lane, alley, court, or place within municipalities in this State, shall remain unpaid and become delinquent under the provisions of any Act or law regulating such matters, shall be made and had in the same time and manner as such sales and redemption were required by law to be made and had on the first day of January, Anno Domini eighteen hundred and ninety-five."

Thus, as applied to redemptions the statute provides that all redemptions "shall be made and had in the same time and manner as such sales and redemption were required by law to be made and had on the first day of January, Anno Domini eighteen hundred and ninety-five." The question then is whether the manner of redemption included the payment of the fifty per cent penalty. It would seem fairly clear that as the redemption was affected by the payment of the amount due to the purchaser, that if the manner of redemption was to be the same, both before and after the amendments to the law relating to collection of state and county taxes, that such payment would still be required notwithstanding the repeal and amendments to the various sections of the code involved in the new scheme of tax sales.

We have so far assumed that the Statute of 1895, repealing section 3779 of the Political Code, affected the right of the purchaser under a sale made for an assessment for the opening of a street, but the logical result of the decision of this court in Ramish v. Hartwell, 126 Cal. 443 [58 P. 920], is that the Statute of 1895 did not affect the Street Opening Act of 1889 in so far as it adopted the provisions of the general system for the sale for delinquent taxes. It will be observed that the Statute of 1889 adopts and makes a part of that statute the general scheme for the collection of delinquent state and county taxes. The exact language of the provision will be considered later. The case of Ramish v. Hartwell,supra, dealt with a similar provision of the Bond Act of 1893 (Stats. 1893, p. 33), which statute provided in section 5 for the adoption of the general plan for the collection of delinquent bonds "in all respects the same as are provided by law for the collection of delinquent state and county taxes." Thereafter the general law was amended by the Statute of 1895 (page 19), now under consideration, and the city treasurer refused to proceed in accordance with the provisions of the code concerning the collection of state and county taxes in effect before the amendments of 1895. The court held that the amendments of 1895 were inapplicable to the proposed sale for delinquent bonds and for that reason the Revised Statute with reference to the collection of state and county taxes did not apply to the collection of delinquent street bonds. In that regard the court stated:

"In 1895 (Stats. 1895, p. 327), section 3771 of the Political Code was amended by providing that, instead of selling the land at auction, the property upon which the taxes are delinquent 'shall by operation of law and the declaration of the tax collector be sold to the state, and said tax collector shall make an entry "Sold to the state" on the delinquent assessment list opposite the tax.' It is contended by the appellants that by this amendment to the Political Code its provisions areipso facto incorporated into the act of February 27, 1893, and that the city treasurer can proceed only in accordance with the provisions of the Political Code, as thus amended.

"It is a rule of statutory construction that the adoption in one statute, for the purpose of carrying its provisions into effect, of the provisions of another statute by reference thereto, does not include subsequent modifications of these provisions in the statute referred to, unless a clear intent to do so is expressed. This rule is subject to a qualified exception in cases of the adoption into a special act of the provisions of law then in force by virtue of general laws. In such cases, subsequent modifications of the general law will be deemed to be within the intent of such adoption, so far as they are consistent with the purposes of the particular act. (SeeKirk v. Rhoads, 46 Cal. 403.) A repeal of the adopted statutewill not take from the adopting statute the operative force ofthese provisions, so far as they may be necessary to carry thelater statute into effect, but these provisions will beregarded as if they had been originally incorporated therein atlength. (Spring Valley Waterworks v. San Francisco, 22 Cal. 434; People v. Clunie, 70 Cal. 504 [11 P. 775];Collins v. Blake, 79 Me. 218 [9 A. 358]; Darmstaetter v.Maloney, 45 Mich. 621 [8 N.W. 574]; Sutherland on Statutory Construction, sec. 257.) Under the same principles, any amendment of these provisions of the statute thus adopted, whether it be a particular act or a general law, which so farmodifies them as to subvert the purpose of the statute by whichthey were adopted, will be regarded in the same light as arepeal. The main object of all statutory construction is to ascertain the legislative will, and, as it is to be assumed that the legislature intends its acts to have effective operation, such amendments will not be construed as depriving the adopting statute of all effect, unless there is a clear necessity for such construction.

"A comparison of the act of 1893 with the provisions of the Political Code, as amended in 1895, shows that the provisions in the latter as thus amended are entirely inapplicable to the former, and ineffective to carry its objects into effect. The provision in section 5 above quoted was to enable the contractors to receive the amount of the assessment as the several installments should mature, and to provide means for enforcing its collection in case of delinquency. The provision for a sale of the land at public auction to anyone who would pay the assessment, with the right in the contractor to become such purchaser, was an efficient mode of securing such payment, but if, instead thereof, the land should be struck off to the state with no power for its sale within five years, and no fund from which to pay the amount for which the sale was made, there would be no means by which the contractor could receive his payment, and the entire purpose of the act would be frustrated. We hold, therefore, that the above amendments to the Political Code in 1895 are inapplicable to the provisions of the act of February 27, 1893, and that the sale of land for delinquency in the payment of the bond is to be made according to the provisions of the law for the collection and enforcement of taxes at the date of the act." (Italics ours.)

It follows, then, that the express repeal of section 3779 of the Political Code, imposing a penalty of fifty per cent, if theretofore applicable to the proceedings for the sale of property for delinquent street opening assessments by reason of the incorporation by reference of such Political Code provisions in the Street Opening Act of 1889, did not operate upon or render inapplicable its provisions as affecting sales for delinquent street opening assessments. It seems to be conceded that section 16 of the Street Opening Act of 1895 as originally enacted (Stats. 1889, p. 73) provided for the penalty of fifty per cent in cases of redemption. If so, the authority for its imposition is contained in the following sentences of section 16: "All property sold shall be subject to redemption in the same time and manner as in sales for delinquent state and county taxes; and the superintendent of streets may collect for each certificate fifty cents, and for each deed one dollar. All provisions of the law, in reference to the sale and redemption of property for delinquent state and county taxes in force at any given time, shall also then, so far as the same are not in conflict with the provisions of this act, be applicable to the sale and redemption of property for delinquent assessments hereunder, including the issuance of certificates and execution of deeds." If the first sentence requires the payment of the penalty it is because the "manner" of redemption incorporates the idea of the fifty per cent penalty, and if that is true there is no difficulty in concluding that the penalty is still imposed, because, as already stated, the saving act of 1895 (Stats. 1895, p. 204) expressly provides that as to the manner of redemption the statute in force January 1, 1895, remains in force with relation to the street opening assessments.

If the requirement for the payment of the fifty per cent penalty is found in the next sentence, "All provisions of the law, in reference to the sale and redemption of property for delinquent state and county taxes in force at any given time," etc., incorporated by reference section 3779 of the Political Code, we have to determine whether upon the principle stated inRamish v. Hartwell, supra, the amendment of 1895 renders inapplicable the fifty per cent penalty. It is true that the Street Opening Act (sec. 16), above quoted, differs in the terms by which it makes applicable to the street opening assessment sales the general scheme for sales for delinquent state and county taxes, and that interpreted in the case ofRamish v. Hartwell, supra, for the reason that the provision for the sale for the street opening assessments provides that the scheme for "the sale and redemption of property for delinquent state and county taxes in force at any given time, shall also then, so far as the sameare not in conflict with the provisions of this act, be applicable," etc. (Italics ours).

It would follow that the new scheme for the collection of state and county taxes would apply "so far as the same are not in conflict with the provisions of this act," but, as stated inRamish v. Hartwell, supra, the new scheme for the collection of delinquent state and county taxes by a sale to the state is thoroughly inconsistent with the system of sales at public auction to the highest private bidder for cash. In the one case the entire property is sold to the state for the tax, subject to a five-year redemption; in the other case only so much of the property as is necessary to pay the delinquent assessment is sold and then to the private bidder who accepts the smallest part of the property and pays the assessment. The new scheme of tax sales in its entirety is inapplicable to and inconsistent with the scheme of sales to private individuals provided by the Street Opening Act (Ramish v. Hartwell, supra), and for that reason, under the express terms of the Statute of 1889, is not applicable to the sale and redemption of the property for delinquent street opening assessments.

Richards, J., pro tem., concurred.