PROVIDENT LAND CORPORATION v. PROVIDENT IRR DIST MOUTREY

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District Court of Appeal, Third District, California.

PROVIDENT LAND CORPORATION v. PROVIDENT IRR. DIST. et al. (MOUTREY et al., Interveners).

Civ. 5858

Decided: May 04, 1939

Louis Bartlett, of San Francisco, for appellant. George R. Freeman and Elmer Laine, both of Willows, for respondents.

This action was instituted by Provident Land Corporation to compel, by mandate, the collector of the Provident Irrigation District to execute and deliver to the district a deed of conveyance of some 900 acres of land. Originally some 5400 acres were involved but by order of the superior court a writ of mandate was directed to issue as to some 4500 acres, but excepted the 900 acres herein involved, upon which there had been an attempt to pay the irrigation district assessment with bonds and coupons under section 52a of the Irrigation District Act as amended in 1933, St.1933, p. 532, before this section had been declared unconstitutional, in the case of Shouse v. Quinley, 3 Cal.2d 357, 45 P.2d 701.

Upon a prior hearing upon this matter, this court, basing its holding upon the invalid sale in 1931 that the petition for the writ of mandate upon its face showed want of jurisdiction on the part of the court to issue any such writ. This rehearing was granted when it was called to our attention that a subsequent sale had been made to the district for nonpayment of assessments in 1932.

An examination of the sale held in 1932 convinces us that the publication therein was in compliance with the statute and that the sale was valid. Respondents contend that the 1932 sale was invalid for two reasons, first, that the publication of the delinquent list and notice of sale was not made as provided by section 41c of the California Irrigation District Laws in that said publication was not made on or before the first day of August; and secondly, that the alleged sale to the district was contrary to the provisions of section 44 of the Irrigation District Laws, St.1929, p. 1170, in that said sale was made on the first day that the property was offered for sale.

In regard to the publication of the delinquent notice, the court found in substance that the notice was published three times, to-wit: once a week for three successive weeks in certain newspapers on the 20th and 27th days of July, and on the 3d day of August, 1932. Section 41c of the Irrigation District Act as it read at the time in question provided as follows: “* the publication of the delinquent list provided for in this act, shall not be made before the first day of July, but must be made on or before the first day of August *.” Stats.1927, p. 614. By “publication”, according to the theory of respondents, is meant the appearance of the notice the required number of times, and therefore the publication of the delinquent list was not complete until the 3d of August, 1932, three days later than required by the statute, thus rendering the sale void. With this construction we are not in accord. Publication is here used in its ordinary sense. In 1935, St.1935, p. 361, section 41c of the Irrigation District Act was amended to read: “* the first publication thereof must be made on or before the first day of August”. This change in phraseology does not indicate necessarily an intention to change the meaning of the provision, but was “to remove just such uncertainty and ambiguity * by expressing the point involved in obscurity in language that cannot be misunderstood”. McNutt v. City of Los Angeles, 187 Cal. 245, 201 P. 592, 595. Furthermore, a delayed publication of a tax list does not of itself invalidate the tax sale or a deed based thereon. Adams v. Slee, 92 Cal.App. 708, 268 P. 959.

We believe that the foregoing disposes of the objection to the validity of the 1932 sale. The 1932 sale being valid, the next question for determination is whether or not redemptions from tax sales with matured bonds and coupons of the district, under section 52a of the Irrigation District Act, constitute a valid redemption. In 1935 the Supreme Court, in Shouse v. Quinley, supra, held that the attempt to abrogate the order of payment of irrigation bonds (sec. 52a of the act) was unconstitutional, and that it impaired the constitutional rights of bondholders.

In Islais v. Matheson, 3 Cal.2d 657, 45 P.2d 326, a statute which amended section 3480 of the Political Code, by reducing the penalties in effect at the time the district's bonds were issued, was held unconstitutional. It was there determined that the law in effect at the time the contract was made fixed the rights of all parties thereto. When these irrigation district bonds were issued in 1918 and 1921, the Irrigation District Act provided gold and silver coin as the mode of payment, which medium was by later amendment fixed as lawful money. The attempt therefore to redeem the property here in question from the 1931 and 1932 assessments with matured bonds and coupons of the district, under section 52a of the act did not constitute a valid redemption from said sales, as payment was not made in the medium specified in the act creating the bonds. No discretion remained in the directors of the district and it was their duty to execute the deed.

From the foregoing it is apparent that the order of the trial court refusing to issue a writ of mandate to compel the board of directors of the district or the collector thereof, to issue and deliver to the district a collector's deed to the approximately 900 acres here involved, be denied, was erroneous.

The judgment is therefore reversed.

PER CURIAM.