Appeal from Superior Court, Maricopa County; Thomas J. Croaff, Judge.
For former opinion, see 207 P.2d 985.
On Rehearing. Former opinion modified and judgment below affirmed.
V. L. Hash, Phoenix, for appellant.
Cox, Lockwood & Lockwood, Phoenix, for appellee.
Kelly, Superior Judge. La Prade, C. J., and Udall and De Concini, JJ., concurring.Note: Due to illness, Justice R. C. STANFORD did not participate in the rehearing.
Kelly, Superior Judge.
[69 Ariz. 78] Rehearing was granted in this cause upon appellee's motion, the ground assigned being that the court misconceived the law upon a point material to the determination of the appeal, "but which (quoting from the motion) was not fully presented by the briefs, argued in the oral hearing or considered by the court." Our former opinion in 207 P.2d 985, contains a full statement of the facts.
The legal proposition now tendered, for the first time expressed, is stated as follows: "When property is sold for taxes covering a number of years as an aggregate sum and the evidence shows that during some of those years the property was exempt from taxes, and during some it was not, the sale, the certificate of sale, and the deed based thereon are void".
The hearing was limited to a consideration of the question as above stated, and the subsidiary one of whether in Arizona we have a remedial statute which would cure the error, if any, in a sale within the purview of the primary proposition. Appellant again presents the contention that the power of the assessor to allow or to reject a claim for exemption invests him with a discretion not thereafter to be collaterally reviewed, but this point will not now again be considered, for it has been fully answered upon the first appeal, that a "mistake" stands upon a footing altogether distinct from the exercise of a discretion; and unquestionably altogether different results accrue to the claimant when the claim is disallowed than when it is allowed and erroneously entered and recorded. The language of the decision, that [64 Ariz. 142, 167 P.2d 99] "Any other conclusion under the facts in this case would be unconscionable" expresses not only the law of the case but the reaction to the facts of every mind which believes the law to be the handmaiden to justice.
A case similar in its implications to the present one is that of Forrest v. Henry, 33 Minn. 434, 23 N.W. 848, in which the owner
offering to redeem was given by the auditor a statement of the amount necessary to complete the redemption, showing sums due for the taxes for two years, but omitting the tax unpaid for the intervening year. Payment according to the auditor's schedule was made by the owner, and it was held that proceedings later for the collection of the omitted amount were a nullity and the title based thereon was void.
It may be noted that the present question is not one of the right of the State to make the sale for the nonpayment of taxes during the year or years the exemption was not in effect, but of the validity of the sale as made for the aggregate of the tax during the years which included [69 Ariz. 79] some when the property was not exempt and some when it was improperly returned for taxation because of the assessor's error. A valid and allowed claim of exemption may be considered in every way as tantamount to payment, and the law of this case on the first appeal, 64 Ariz. 142, 167 P.2d 94, clearly announces the rule that (if the taxpayer) "fully complied with the statute by appearing before the County assessor and giving all information required, as provided in sections 73-303 and 73-304. * * * The failure of the assessor to designate the property correctly is ...