E. POWER CONWAY, Appellant,
HATTIE L. MOSHER, a Widow, COIT I. HUGHES, and HATTRUDE B. HUGHES, Wife of COIT I. HUGHES, Appellees
APPEAL from a judgment of the Superior Court of the County of Maricopa. Wm. G. Hall, Judge. On motion for rehearing. Rehearing denied.
Messrs. Gust, Rosenfeld, Divelbess, Robinette & Coolidge, for Appellant.
Mr. E. E. Selden, for Appellees.
Mr. E. R. Thurman and Mr. M. C. Burk, Amici Curiae.
[55 Ariz. 469] ROSS, C.J.
We feel that our conclusion as to the law as set out in our opinion is correct but, on account of the importance of the questions involved, we think it advisable to elaborate some of the points involved in the case.
Amici curiae appearing in support of appellant's motion for rehearing make the point that chapter 103, Laws of 1931, is taken from the tax sales statutes of Colorado (1935 Colo. Stat. Ann., vol. 4, chap. 142, sec. 227 et seq. at p. 809 et seq.) and that, therefore, we should follow the construction of such statutes placed upon them by the Colorado courts before we adopted
them. We held in Copper Queen Min. Co. v. Territorial Board of Equalization, 9 Ariz. 383, 84 P. 511 (syllabus 1):
"Where a legislature adopts a statute from another state, it will be presumed to have adopted with it the judicial construction given it by the court of last resort of that state prior to the adoption, except where it makes such changes of phraseology as necessitate a change of construction." (Italics ours.)
While it is probable our statutes, providing for the collection of delinquent taxes, are in part taken from Colorado, a comparison shows they greatly differ. A feature common to both seems to be the manner of advertising and conducting the sale of delinquent property by the county treasurer. In our opinion we stated what the treasurer generally does in making sales such as this one. Amici curiae assert we erred:
"1. In holding that the sale of property for taxes under our statute is not required to be kept open from day to day and offered at public outcry until such time as it is apparent to the treasurer that no private bidders are available; and
"2. In holding that a tax sale is not required to be competitive under the statute." (Italics ours.)
[55 Ariz. 470] Although the Colorado statute, section 227, supra, and our section 18, chapter 103, supra, provide that the county treasurer shall advertise that he will sell delinquent property "at public auction at the county treasurer's office," the form of notice prescribed in both is: "Public notice is hereby given that I will offer at public sale," etc. Amici curiae have not cited us to any Colorado cases holding that the delinquent property should be "offered at public outcry," and we have found none. While the words "public auction" are used in one place in the statutes, we are satisfied that the only meaning intended thereby was that the sale should be a "public sale," that is, a sale conducted openly in the treasurer's office, in the presence and hearing of all persons in the office -- not secretly or collusively. The offer is from day to day. It is a standing offer until the treasurer strikes the property off to the state for lack of private offers. The object of the delinquent tax law is to force each property owner to pay his taxes, and the harsh method of selling his property is resorted to only when he fails to pay them voluntarily. The state is interested only in getting its taxes. It therefore limits the sale price to the taxes, penalties and charges and it permits the treasurer, after offering the property at one sale's day and receiving no buyer, to strike it off at any subsequent sale's day to the state, if he "becomes satisfied that no more sales can be ...