GARTNER ET AL v. ROTH COUNTY AUDITOR ET AL (1944)

This is an appeal from an order denying a petition for a writ of mandate. The appeal is presented on an agreed statement from which it appears that certain real property in the city of Upland was assessed to J. Julius Gartner for the year 1936; that the taxes for that year were not paid; that Gartner died in 1937 and this property was distributed by the Los Angeles Superior Court to Henry A. Gartner, who sold the property under contract to James and Allie Harrison, who have been in possession since 1937; that on August 3, 1942, the property was deeded to the state for nonpayment of the 1936 taxes; that the plaintiffs first discovered that said taxes had not been paid in November, 1942, after the deed to the state was recorded; that the plaintiffs immediately thereafter made application to the defendant auditor for an “estimate of redemption” and offered to pay said taxes with all penalties and interest to the defendants auditor and treasurer; that these officers, on advice of counsel, refused to give an estimate of redemption or to permit redemption to be made on the ground that the provisions of sections 3476 and 3511.3 of the Revenue and Taxation Code, St.1939, p. 1325, St.1941, p. 1425, precluded them from permitting said property to be redeemed; that ever since said time the plaintiffs have stood ready and have repeatedly offered to pay all delinquent taxes with all penalties and interest; that since November 15, 1942, the plaintiffs have paid rental on the property to the state and the rent paid now nearly equals the amount of taxes, interest and penalties that would be due if redemption had been made; that on October 8, 1943, the plaintiffs filed a petition for a writ of mandate and secured an alternative writ requiring the defendants auditor and treasurer to show cause why they had not made an estimate and permitted redemption to be made; that at the hearing of said matter it was stipulated that the above facts were admitted, that there was no question of fact to be determined, and that the only issue to be decided was the question of law as to whether or not the plaintiffs had a right to redeem said property; that the judge held and found that Chapter 932, page 2804, Statutes of 1943, cannot be applied retroactively for the purpose of allowing a redemption of property deeded to the state for taxes between June 1, 1942, and August 4, 1943, and that during that period section 3511.3 of the Revenue and Taxation Code was in full force and effect; and that the court thereupon made and entered an order quashing the alternative writ and denying the petition for a peremptory writ of mandate. From that order the plaintiffs have appealed.

So far as material here, section 3511.3 of the Revenue and Taxation Code provides: “On or after June 1, 1942, and prior to January 1, 1947, on execution of the deed to the State, the right of redemption is terminated as to all property * * *.” That section was adopted in 1941. Stats. 1941, p. 1425. In 1943, an act was passed (Stats.1943, Ch. 932) which provides, in part, as follows: “Sec. 2. The operation of Sections 3511.3 (and ten other sections) of the Revenue and Taxation Code shall be postponed and suspended until June 1, 1945.” The controversy here is as to the meaning and effect of that provision, which became effective on August 4, 1943. For convenience, these two statutes will be referred to as section 3511.3 and Chapter 932.

The appellants contend that it was the express and implied intent and purpose of the legislature, in adopting Chapter 932, to suspend the bar to redemption theretofore imposed by section 3511.3 and to permit the redemption of all property deeded to the state for taxes, and not sold by the state, at any time up to June 1, 1945.

On behalf of the respondents the county counsel argue that section 3511.3 “is in all probability constitutional” since it affects the termination of the right of redemption as to property deeded to the state on and after June 1, 1942, and since another statute passed in 1941, affecting the same right with respect to property deeded prior to June 1, 1942, was upheld in the case of Mercury Herald Co. v. Moore, 22 Cal.2d 269, 138 P.2d 673, 147 A.L.R. 1111; that Chapter 932 contains no provision for its retroactive application; and that section 3511.3 instantly and finally terminated any right of redemption with respect to this property when it was deeded to the state on August 3, 1942. County counsel frankly and honestly admit that their interpretation of the meaning and effect of Chapter 932 would result in an unjust discrimination between those whose property was deeded to the state between June 1, 1942 and August 4, 1943, and those whose property was deeded to the state before or after that period, and say: “Such discrimination is no doubt due to legislative inadvertence, and this result probably was not foreseen by the legislature. While the effect on taxpayers seems harsh we see no legal means of escaping it.”

The attorney general has filed a brief on behalf of the state in which it is contended that the right of redemption as to this property was terminated when it was deeded to the state on August 3, 1942; that Chapter 932 could not revive this right of redemption unless it is held to be retroactive in effect; that Chapter 932 contains no language indicating any intent that it should be retroactive in effect; that Chapter 932 should be construed “prospectively” because to give it a retroactive effect would raise a serious doubt as to its constitutionality; and that since Chapter 362, p. 1598, also adopted in 1943, sets forth that its purpose is to avoid any conflict between the laws of this state and the federal Soldiers' and Sailors' Relief Act of 1940, as amended, 50 U.S.C.A.Appendix, § 501 et seq., it must be assumed that the sole purpose of adopting Chapter 932 was the same. And that it was no part of that purpose to get property back on the assessment rolls or to enable people, whose financial status had been improved by wartime conditions, to redeem their property.

It may first be observed that the purpose expressed in Chapter 362 would seem to have been accomplished by that enactment. Chapter 932 must have been adopted for a different purpose. If it be assumed that any part of its purpose was to avoid a conflict with federal laws with respect to property deeded to the state in 1942, this is an additional indication that it was intended to have a retroactive effect.

In the act adopting Section 3511.3 the legislature declared a policy of using the revenues derived from tax deeded property “for the primary purpose of restoring tax–deeded property to the rolls”, and in another section provided that the act should take immediate effect in order to carry out the purpose of encouraging and securing the early return of tax deeded property to the tax rolls. In Mercury Herald Co. v. Moore, 22 Cal.2d 269, 138 P.2d 673, 147 A.L.R. 1111, the court pointed out that other provisions for the termination of the right of redemption, adopted in 1941, were a part of an integral plan to rehabilitate tax deeded property and to expedite the restoration of such property to the tax rolls. We think that Chapter 932 was adopted as a part of the same plan and for the same general purpose.

There is no merit in the suggestion that Chapter 932 might be unconstitutional if intended to have any retroactive effect. The state would not be giving away property but would be merely restoring a right which all delinquent taxpayers originally possessed and which had been temporarily withdrawn from a part of them.

These considerations may have, in part, led to the adoption of Chapter 932, along with the well–known change in economic conditions making possible and more probable an early restoration to the assessment rolls of large numbers of parcels of tax deeded property. In any event, the language used in Chapter 932 is controlling and we cannot agree that it contains no indication of any intent that it be retroactive, in the sense of applying to or affecting deeds issued to the state during the time section 3511.3 had been effective. Had there been no such intention, it would have been a simple thing, and the natural thing, to have merely provided that section 3511.3 should not be applicable to sales made to the state in the future and before June 1, 1945. Instead of thus limiting its effect to future sales to the state Chapter 932 makes the broad provision that the “operation” of section 3511.3 shall be “postponed and suspended” until the date named. The fact that the word “suspended” was also used indicates that something more than “postponed” was intended. The word “postpone” carries with it the idea of putting off the doing of something or the taking effect of something, until a future time, while the word “suspend” has also the idea of holding up or delaying an effect which has already been operative. As the attorney general well says: “Certainly, in every day usage ‘postpone’ means to defer until later something which has not yet occurred. ‘Suspend’, on the other hand, indicates that something is already in operation which is to be stopped for a time.” Not only is this the plain meaning of the words thus used, but this is emphasized and the intent of the legislature further disclosed by another word which is used. The thing that is postponed and suspended is not merely section 3511.3, as an existing statute, but it is the “operation” of that statute. This clearly implies that the entire operation of the statute is both postponed and suspended, its past operation as well as its future operation. As defined by Webster, “operation” means the act, process or effect of operating; a deed; efficacy, virtue, potency; an act done as a part of a plan; a transaction; a product or work; a definite passage from one form to another. As commonly used in connection with a statute it means the effect of the statute. A part of the “operation” of section 3511.3 was to shut off the right of redemption in cases coming within its terms. Deeds to the state during 1942 did not, in themselves, terminate the right of redemption. This was done by the operation of this statute. In a very real sense the “operation” of a statute means its effect and what it has done, as well as what it may do in the future. In view of this language of Chapter 932 a clear intention appears not only to postpone but to suspend both the past and future operation of section 3511.3 for the period named. Under the language used, the entire operation of section 3511.3 is suspended. A part of that operation was the termination of the right of redemption on the property with which we are here concerned. That operation being suspended, the plaintiffs had a right of redemption at the time here in question.

Aside from the plain meaning of the language used in Chapter 932, and the clear implication from the manner and circumstances in which it was used, it would be unreasonable to assume that the legislature could have intended, while granting relief to taxpayers whose lands had been deeded to the state and had not yet been sold by the state, to have so provided that those taxpayers whose lands were deeded after August 4, 1943, the effective date of Chapter 932, should have the same right of redemption that was still had and enjoyed by taxpayers whose lands had been deeded to the state over many years and up to June 1, 1942, and that those taxpayers whose lands were deeded to the state during this period of a little more than a year should be in a different class and should lose the rights and privileges enjoyed by all of the others. No reason appears, in justice or in law, for such a distinction and discrimination and we cannot believe that it was intended by the legislature. In suspending the operation of section 3511.3, Chapter 932 suspended its entire operation and effect and provided that it should be ineffective for any purpose until June 1, 1945.

We cannot believe that the main purpose of the legislature was to get and keep for the state the increased value, brought about by improved economic conditions, of lands deeded to the state during the depression years. From the statute in question, and from much other legislation about the same time, it must be assumed that the main purpose was to collect what is justly due to the state by encouraging the redemption of property sold for taxes, and at the same time to get as much of such property as possible back on the assessment rolls. This has long been a recognized principle in connection with such taxation, where the doctrine of in invitum has long been applied, and if this is to be changed to a new system designed to enable the state to obtain and retain the full value of property, rather than a reasonable tax thereon, this should be accomplished through a clear, express and distinct pronouncement by the legislature and not by judicial interpretation. In the meantime, the courts should not go beyond the express or clearly implied intention of legislative acts, and thus give them the effect of taking away, for a small fraction of their value, the homes and property of people who are now able and willing to pay the full amount of their taxes and penalties.

The order appealed from is reversed with directions to the trial court to grant the peremptory writ prayed for.

BARNARD, Presiding Justice.

MARKS and GRIFFIN, JJ., concur.