Longview Co. v. Cowlitz County

¹ Reported in 95 P.2d 376. This action was instituted by The Longview Company, a corporation, against Cowlitz county, James A. Fogarty, W.J. Martin, and Thomas G. Jordan, as county commissioners thereof, and H.D. Renner, as county treasurer, for the purpose of obtaining a declaratory judgment declaring the rights of plaintiff and defendants, first, with respect to surplus money now in the hands of defendant Renner, as county treasurer, or which has been transferred to county funds, arising, or which will arise, from the resale by defendants of property acquired by the county from the plaintiff, or its predecessor in interest, through foreclosure of general taxes, subject to diking district assessments; and second, with respect to rights and status of plaintiff with respect to the attempt of defendants to deduct from the proceeds of such resales interest at the rate of ten per cent per annum for the period the county holds title thereto.

A demurrer to the complaint was interposed by the defendants, on the ground that the complaint did not state a cause of action. We do not find in the record anything to indicate that a formal order was ever entered on this demurrer. This, however, is immaterial, in view of the fact that the matter was subsequently heard on facts stipulated to be as alleged in the complaint, which facts were carried into the finding subsequently entered by the court.

Findings of fact, conclusions of law, and judgment were made and entered December 10, 1938. Plaintiff predicates error on the court's dimissal of its first cause of action, and it has appealed from such judgment. Defendants have cross-appealed, and contend that the court erred in granting judgment in favor of plaintiff on its second cause of action. Plaintiff will hereinafter be referred to as appellant, and defendants as cross-appellants.

The question which is presented is whether or not the findings of fact support the conclusions of law and judgment as entered.

The court made the following findings of fact relative to appellant's first cause of action: That, prior to October 27, 1936, appellant was the owner of certain real estate in Cowlitz county, Washington, subject to diking improvement assessments, one of the parcels of real estate being lot 8, block 30, Highlands Addition to the city of Longview, No. 3; that, on October 27, 1936, cross-appellant H.D. Renner, as county treasurer, offered this lot for sale, on account of the nonpayment of real property taxes; that, at such sale, cross-appellant Cowlitz county became the purchaser of the property, there being no other bidders; that cross-appellants county commissioners, pursuant to Rem. Rev. Stat., § 4439-4 [P.C. § 1945-86c], caused publication of notice of sale of lot 8, and upon the day fixed in the notice, the lot was sold for four hundred dollars, and a deed issued to the purchaser; that the amount of the lien for general taxes for which the property was sold was $9.38, additional interest to the date of tax resale, twenty-one cents; that, at the time of the resale, there was outstanding against the lot a lien of consolidated diking improvement district No. 1 for the following amounts: Bond (representing installments for construction due at the time of resale) plus interest, $44.34, and maintenance assessment (past due), four dollars; that, at the time of resale, there was outstanding against the lot, liens for certain local improvement districts in the sum of $110.11; that cross-appellant Renner has caused, or will cause, the sum of four hundred dollars to be apportioned and distributed as follows: To cross-appellant county (on taxes), $238.40, and on current expense fund, $3.15, to consolidated diking improvement district No. 1 (bond), $44.34, and maintenance, four dollars, to local improvement districts, $110.11.

The findings further state that, at the time of the original tax foreclosure sale, there were no liens or charges against lot 8, other than as set out herein; that, on August 6, 1938, appellant made a formal demand upon cross-appellant Renner for payment of surplus proceeds from the resale, over and above the amount necessary to pay the taxes due at the date of resale, past due diking improvement district assessments, and local improvement district assessments; that cross-appellants refused, on August 9, 1938, and now refuse, to comply with appellant's demand, and are now withholding the sum of $232.17, which appellant claims is now due and owing to it on account of such resale; that cross-appellants have threatened, and are threatening, and unless restrained by the court will proceed, to resell other property and distribute the surplus proceeds of such sales in the manner adopted by cross-appellants in the sale of lot 8; that the questions with respect to the application of the proceeds of resales are of great public importance and require a declaration of rights of all parties in interest, as provided by Rem. Rev. Stat. (Sup.), § 784-1 [P.C. § 8108-21] et seq. (Laws of 1935, p. 305, as amended by Laws of 1937, p. 39.)

In regard to appellant's second cause of action, the findings of fact incorporate, as a part thereof, the general allegation contained in the first cause of action, and the court then finds that, with respect to the resale of lot 8, cross-appellants have deducted from the proceeds of the resale interest at the rate of ten per cent per annum on the amount for which the lot was struck off to the county, from the date of the tax foreclosure sale to the date of resale, and have threatened to, and will unless restrained, appropriate from the proceeds of future resales, interest in like amount; that appellant desires to have determined the right of cross-appellants to appropriate from the proceeds of resales, interest on the amount for which the property was struck off to cross-appellant, and to obtain a declaration of appellant's rights and status with respect thereto.

Based upon the foregoing findings of fact, the court concluded that appellant was entitled to a judgment declaring that, under the law, and particularly that provision of Rem. Rev. Stat., § 4439-4, which states that such property "shall be offered for the amount of the general taxes for which the same was struck off to the county . . .," interest at ten per cent per annum, or in any amount, does not run on the amount for which real estate is struck off to the county at a tax foreclosure sale, from the date of such sale to the date of resale by the county, and in the resale of such land, a county, or its officers, and particularly the cross-appellants herein, should not include such interest as an item to which the proceeds of such resale should be apportioned, or which should be added to the amount for which such property is offered for sale by the county, under the provisions of § 4439-4; that appellant should take nothing under its first cause of action; and that the cause of action should be dismissed. Judgment was entered in accordance with the conclusions.

Rem. Rev. Stat., § 4439-4, provides in part as follows:

"Property subject to a drainage or diking or sewerage improvement district assessment, acquired by a county pursuant to a foreclosure and sale for general taxes, when offered for sale by the county, shall be offered for the amount of the generaltaxes for which the same was struck off to the county, together with all drainage or diking or sewerage improvement district assessments or installments thereof, due at the time of such resale, including maintenance assessments, and supplemental assessments levied pursuant to the provisions of section 4439-6, coming due while the property was held in the name of the county; and the property shall be sold subject to the lien of all drainage or diking or sewerage improvement district assessments or installments thereof not yet due at the time of such sale, and the notice of sale and deed shall so state. Provided, that the county board may in its discretion, sell said property at a lesser sum than the amount for which the property is offered in the notice of sale. The proceeds of such sale shall be applied first to discharge in full the lien or liens for general taxes for which said property was sold, and the remainder, or such portion thereof as may be necessary, shall be applied toward the discharge of all drainage or diking or sewerage improvement district assessment liens upon such property, and the surplus, if any, shall be applied toward the payment of any delinquent or due local assessments or local assessment installments outstanding against the property levied by any authority other than that of the county, taking them in the order of their maturities, beginning with the earliest; after which if any money remainsthe treasurer shall hold the same for the person whose interestin the property entitles him thereto." (Italics ours.)

This section of the statute provides for the resale of property acquired by general tax foreclosure proceedings, and was enacted as a portion of § 11, chapter 46, Laws of 1923, p. 126. This section amended Rem. Comp. Stat., § 4439, which was § 33, chapter 130, Laws of 1917, p. 544. A portion of the section last referred to, amended by § 4439-4, supra, reads as follows:

"In any case where any property shall be struck off to or bid in by the county at any sale for general taxes, and such property shall subsequently be sold by the county, the proceeds of such sale shall first be applied to discharge in full the lien or liens for general taxes for which the same was sold, and the remainder, or such portion thereof as may be necessary, shall be paid to the district to discharge all drainage or diking improvement district assessment liens upon such property, andthe surplus, if any, shall be distributed among the proper countyfunds." (Italics ours.)

The difference between the sections with which we are concerned, indicated by the italicized portions thereof, is that, under the law of 1917, the surplus remaining after the application of the purchase price of the property to payment of taxes, etc., "shall be distributed among the proper county funds," while the statute now in force, enacted in 1923 (§ 4439-4), provides that, after application of the proceeds of the property to payment of taxes, etc., "if any money remains, the treasurer shall hold the same for the person whose interest in the property entitles him thereto."

Appellant contends that the word "person," as used in that part of Rem. Rev. Stat., § 4439-4, which states "after which if any money remains, the treasurer shall hold the same for the person whose interest in the property entitles him thereto," should be construed to mean the owner of the property at the time of the tax foreclosure.

[1] While it may be doubtful whether or not appellant, in this case, would be entitled to participate in any surplus in the hands of the treasurer, in any event, the property having been sold under the declaratory part of § 4439-4, supra, for more than was called for in the notice of sale, and not for a lesser sum, as authorized in the proviso (Baldwin v. Frisbie,149 Wash. 294, 270 P. 1025), but assuming that the provision in question does apply to sales, whether made for more than called for in the notice of sale, or, under the proviso, for less, and that appellant's interest herein is such as to entitle it to a determination in its favor, if appellant's contention is sustained, still we are unable to agree with appellant that the word "person," as used in the statute in question, could reasonably be construed to mean the owner of the property at the time of the tax foreclosure.

Appellant lays considerable stress upon the fact that in 1923 the legislature changed the wording of the statute relative to the disbursement of any surplus in the hands of the county treasurer, and appellant contends that because thereof it must be assumed it was the intention of the legislature to change the law. We can agree with appellant's contention as a general proposition, and, applying the principle to the instant case, the question which then presents itself is: To whom did the legislature intend the surplus to go? Appellant further contends that, from the wording of the proviso in question, it is plain the legislature intended this surplus to go to a person, which it is contended would include a corporation such as appellant, and not to any municipality or taxing district.

Certainly, it is the duty of the court to endeavor to ascertain, if possible, the intent of the legislature in construing a statute, but we are at a loss to understand how it would be possible to place upon this provision the construction contended for by appellant, in view of the fact that we have consistently held, at least since the decision in the case ofGustaveson v. Dwyer, 78 Wash. 336, 139 P. 194, decided in 1914, that a tax foreclosure proceeding deprives the record and possessory owner of all interest in the property; and that, when the county becomes the purchaser of land at a general tax foreclosure sale for want of other bidders, the county, upon the deed being issued to it pursuant to such sale, acquires title to such property in fee, as against the owner. However, the title thereby acquired becomes vested in the county, not in its proprietary capacity, but in trust for the state and for the other taxing municipalities within which the land is situated, with power and obligation on the part of the county to sell the land and fairly apportion the proceeds to the state, municipal, and other funds entitled thereto. Gustaveson v. Dwyer, supra;Shelton v. Klickitat County, 152 Wash. 193, 277 P. 839; Sassev. King County, 196 Wash. 242, 82 P.2d 536.

Had the legislature intended that the former owner should have this surplus, it certainly would have been a simple matter to have so stated.

We appreciate that the provision in question is not clear; in fact, we doubt if language could have been used which would have been more difficult to construe, when considered in connection with the situation that is presented in any case where there is a surplus under the statute to be distributed. In view of the situation presented, we think, in order to give some practicable and workable effect to the statute, it is not unreasonable to construe the word "person," as used herein, to mean the county and the various taxing funds, as contended for by cross-appellants.

To place upon the word "person" the construction contended for by cross-appellants, would not, in our opinion, be a strained or unnatural construction; in fact, unless it is so construed, we are of the opinion this provision would have no meaning. The word "person" is a generic term of comprehensive nature, embracing natural and artificial persons, such as corporations. State exrel. Northwestern Colonization Imp. Co. v. Huller, 23 N.M. 306,168 P. 528, 1 A.L.R. 170. We have in our own statutes an expression indicating the broad scope given to the word "person." Rem. Rev. Stat., § 11110 [P.C. § 6882-6], provides in part: "The term ``person,' wherever used in this act, shall be construed to include firm, company, association or corporation."

The word "person" has been held to include the state. WestCoast Mfg. Inv. Co. v. West Coast Imp. Co., 25 Wash. 627,66 P. 97, 62 L.R.A. 763. See, also, State v. Odd Fellows HallAss'n, 123 Neb. 440, 243 N.W. 616. In Hulbert Special SchoolDist. v. Cooper, 180 Ark. 29, 20 S.W.2d 322, it was held that school and drainage districts were persons, within the meaning of the statute. See, also, Spear v. Bremerton, 90 Wash. 507,156 P. 825. In Lancaster County v. Trimble, 34 Neb. 752,52 N.W. 711, it was decided that a county was a person, in the legal sense of the term.

Appellant cites the cases of Welch v. Haley, 224 Mass. 261,112 N.E. 860, and Chadwick v. Cambridge, 230 Mass. 580,119 N.E. 958. We doubt the applicability of the cited cases, because of the difference between the Massachusetts statutes relative to the collection of taxes and our statutes; but, in any event, we do not think the cited cases can be considered as authority herein, in view of the decisions of this court to the effect that, after foreclosure, the former owner has no interest in the property.

We think the trial court was right in refusing to construe § 4439-4 as contended for by appellant, and in denying appellant any relief on its first cause of action.

[2] In regard to the second cause of action, cross-appellants contend the county should be allowed to appropriate from such surplus in the hands of the treasurer interest at the rate of ten per cent from the time the property was struck off to the county until the date such property was resold. We are of the opinion the trial court was right in holding that interest could not be charged and deducted by the county from such surplus during the period above mentioned. The county would have no right to charge interest during this period or make any deduction therefor, unless authorized by statute.

Rem. Rev. Stat., § 11292 [P.C. § 6882-131], provides:

"All property deeded to the county under the provisions of this act shall be stricken from the tax-rolls as county property and exempt from taxation and shall not be again assessed or taxed while the property of the county."

Under § 4439-4, supra, when property held by the county is offered for sale, it shall be offered for the amount of the general taxes for which the same was struck off to the county, together with other assessments, as set out in the section.

The statutes making no provision therefor, we are clearly of the opinion the county would have no right to deduct from the proceeds of any resale held pursuant to § 4439-4, supra, interest on the amount for which the property was struck off to the county at the tax foreclosure sale, from the date of such sale to the date of a resale.

The judgment is affirmed.

BLAKE, C.J., MAIN, MILLARD, and GERAGHTY, JJ., concur.