DAN S. KITCHEL, as Treasurer and Ex-Officio Tax Collector of Cochise County, Arizona, Appellant,
GADSDEN HOTEL COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Cochise. John Wilson Ross, Judge. Judgment affirmed.
Mr. Arthur T. La Prade, Attorney General, Mr. Frank E. Thomas, County Attorney, and Mr. George M. Roark, Deputy County Attorney, for Appellant.
Messrs. Sutter & Gentry, for Appellee.
[42 Ariz. 227] ROSS, C. J.
On January 3, 1933, the Gadsden Hotel Company, a corporation, was delinquent in the payment of the last half of its taxes for the year 1931 and for the first half of the year 1932, totaling, including ten per cent. interest from dates of delinquency, the sum of $9,921.71, which sum, together with the taxes for the last half of 1932, or all told $15,055.60, it tendered the defendant county treasurer and ex-officio tax collector in full payment of its taxes for such period. Defendant refused to accept such sum but demanded of the plaintiff in addition thereto a fee of four per centum for the collection of such delinquent taxes. Thereafter plaintiff brought this action in mandamus to compel the defendant to accept the tender. The trial court entered judgment directing the defendant to accept the tender in full payment and to issue to plaintiff a receipt therefor. The appeal is from this judgment or order and raises the question of the right or duty of defendant as the tax collector to collect the additional four per centum.
In article 7 of chapter 75 of the Revised Code of 1928, entitled "Collection of delinquent taxes," is found this section:
"§ 3128. Fees for collection; disposal of fees. The following fees shall be charged for the collection of delinquent taxes: By the county treasurer four per cent. of all sums collected after the second Monday of December, and for making the 'back tax book,' fifteen cents for each tract of land or town lot, separately assessed, to be taxed as costs and collected from the party redeeming such tract or town lot; by the superior court clerk, the sheriff, and the printer, such fees as are allowed by law for like services in civil actions, to be taxed as costs; but the state or county shall not be liable for any such costs, except printing; nor shall the board of supervisors allow any claim for costs, except printing when no sale is made. The printing shall be a charge against the county. All fees collected by a county officer under [42 Ariz. 228] the provisions of this article, shall be by him paid to the county treasurer as other fees are paid." (Italics ours.)
If this section has not been repealed the defendant's demand was legal and proper. The position of the plaintiff is that the section was repealed by chapter 46, Laws of 1929, and by chapter 103, Laws of 1931, the titles to which laws, in part, were "the Collection of Delinquent Taxes." These two chapters are practically the same, so much so that we will refer to chapter 46 only in our future discussion. We have to consider, then, only whether chapter 46, supra, repealed or superseded section 3128. The article of which this section is a part is concerned with delinquent taxes and the method of collecting them.
Prior to 1903 delinquent taxes were collected by the tax collector in a summary manner and without any action whatever in court. He published notice of the delinquency and the date of sale and thereafter sold the property. Chapter 7, title 62, Rev. Stats. Ariz. 1901, Civ. Code. In
1903, the legislature, by chapter 92 of the Session Laws of that year, amended the revenue laws by changing the method of collecting delinquent taxes from a summary to a judicial proceeding; and in section 93 (page 169) thereof provided for certain fees to be taxed as costs, such section reading as follows:
"Section 93. Fees shall be allowed for services rendered under the provisions of this chapter as follows:
"To the tax collector, four per cent. of all sums collected, such per centum to be taxed as costs and collected from the party redeeming.
"To the clerk of the county board of supervisors for making the 'back tax-book,' twenty-five cents per tract, or town lots to be taxed as costs and collected from the ...