Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.
Suit by James B. Allred against the State of Arizona, a body politic and others, and B. F. Youngker and C. O. Vosburg. B. F. Youngker and C. O. Vosburgh filed a cross-claim. From the judgment, the State of Arizona and others appeal.
Reversed with directions.
Francis J. Donofrio, County Atty., and Warren L. McCarthy, Deputy County Atty., both of Phoenix, for appellants.
Milton L. Ollerton, of Phoenix, for appellee, James B. Allred.
Evo De Concini, Atty. Gen., and Chas. D. McCarty, Asst. Atty. Gen., amicus curiae.
Udall, Justice. R. C. Stanford, C. J., and LaPrade, J., concur.
[67 Ariz. 321] This appeal raises the question as to whether a veteran by his inaction in complying with statutory requirements has waived the right to tax exemption granted by the Constitution. The issue involved is one of considerable importance in its bearing on the fiscal affairs of the state and its political subdivisions, as well as to widows and veterans entitled to tax exemptions.
The facts giving rise to this suit are nowise in dispute, the matter having been submitted to the trial court on an agreed statement. Briefly the record shows: James B. Allred (Appellee), an honorably discharged veteran of World War I and a resident of Arizona since the year 1920, homesteaded a half-section of land in Western Maricopa County for which he received a patent from the United States on October 15, 1930. The total assessed valuation of all of his property for the year 1931 was less than $ 2,000, and, as he possessed the necessary qualifications entitling him to exemption from taxation under art. 9, Sec. 2 of the Constitution of Arizona, a claim for exemption was filed with the County Assessor and allowed for that year. For the years 1933 to 1944, inclusive, the appellee availed himself of the right to tax exemption (to which he was clearly entitled) and no taxes were levied or assessed against him for any of the years above named. Unfortunately, however, the appellee failed to file a claim for exemption for the year 1932, although legally he was entitled to do so, and taxes for that year were assessed and levied against his homestead by the taxing officials of Maricopa County.
The taxes for the year 1932 not having been paid, the County Treasurer of Maricopa County, on April 1, 1938, conducted a tax sale and appellee's property was [67 Ariz. 322] struck off to the State of Arizona. No redemption having been made within the time provided by law, the County Treasurer on June 28, 1943, executed and delivered a tax deed conveying the property to the state. Thereafter on July 17, 1944, the State of Arizona, acting by and through the Board of Supervisors of Maricopa County, Arizona, regularly sold and conveyed all of its right, title and interest in and to said property to B. F. Youngker and C. O. Vosburgh for the sum of $ 640. It should be noted, in passing, that no question is here raised as to the failure of the taxing officials to comply strictly with all of the statutory requirements of Art. 8, Chap. 73, A.C.A.1939, with reference to collection of delinquent taxes.
Apparently it was not until early in January of the year 1945 that appellee learned that his property had been sold for delinquent taxes for the year 1932, and it was stipulated that he would testify that he had not intentionally waived the right to claim his exemption for that year. On February 27, 1945, the appellee tendered the sum of $ 69.44 (amount of the 1932 tax with interest,
penalty, etc.) to the County Treasurer of Maricopa County, which tender was refused.
The appellee then promptly brought suit against the State of Arizona, the Board of Supervisors, Treasurer of Maricopa County, and Youngker and Vosburgh, as defendants. The prayer was that the sale of the property by the Treasurer of Maricopa County for delinquent taxes, the conveyance of the title by him to the State of Arizona, and the sale thereof by the State to Youngker and Vosburgh be declared null and void, and that he be decreed the owner in fee simple.
Defendants Youngker and Vosburgh filed a cross-claim against the Treasurer of Maricopa County praying that if judgment be rendered in favor of the appellee (Allred) they have judgment against the Treasurer for the sum of $ 640 plus interest.
Doubtless relying upon the pronouncements of this court in Calhoun v. Flynn, 37 Ariz. 62, 289 P. 157, and Evans v. Hallas, 64 Ariz. 142, 167 P.2d 94, the trial court on March 1, 1947, entered judgment as prayed for by the appellee (plaintiff), and also as requested by the defendants Youngker and Vosburgh on their cross-claim. The latter, however, filed no appearance in this court.
The appellants' sole assignment of error is that the court was wrong in declaring in its judgment that the property in question was exempt from taxation for the year 1932, and hence that the subsequent tax sales were null and void. Advanced in support of this assignment is this proposition of law: "When a veteran, otherwise entitled to an exemption on his property, fails to file his affidavit claiming exemption and in addition fails to pay under protest the taxes assessed thereon before a ...