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volving the same statute, and from it the following quotation seems germane: "The present proceeding is not a new action to establish the rights of the defendant in error as against other parties. It is a proceeding in the nature of an execution to enforce the judgment already rendered. The right of the defendant in error to call upon the board of directors to enforce the judgment was established in that judgment as well as his right to have recourse to the board of supervisors in case of the refusal or neglect of the board of directors to make the levy and assessment. Neither the board of directors nor the board of supervisors nor the taxpayers of the Perris irrigation district can be heard to defend the present proceeding on any of the grounds litigated, or which might have been litigated, in the former action."

The principal attack directed against the judgment is based upon the ground that said section 39 is unconstitutional for these reasons: (1) Because it delegates the power to assess and collect taxes in the district to other than corporate authorities thereof; (2) because it directs the assessment of property within the district to be made by persons not representatives of the district; (3) because it delegates to a legislative officer the power to perform the purely executive functions of the assessor. In this connection attention is directed to section 12, article 11, and section 10, article 13, of the Constitution of this state and numerous decisions of our Supreme Court. Said section 12. supra, provides that "the Legislature shall have no power to impose taxes upon counties, cities, towns or other public or municipal corporations or upon the inhabitants or property thereof, for county, city, town or other municipal purposes, but may by general laws vest in the corporate authorities thereof the power to assess and collect taxes for such purposes," and said section 10 provides for the assessment of property where it is situated "in the manner prescribed by law."

As pointed out by respondent many of the decisions cited by appellant were rendered under the Constitution of 1849, which contained the following provision: "Taxation shall be equal and uniform throughout the state. All property in this state shall be taxed in proportion to its value, to be ascertained as directed by law; but assessors and collectors of town, county and state taxes shall be elected by the qualified electors of the district, county or town in which the property taxed for state, county or own purposes is situated." If that provision were a part of the organic law now, it is probable that said section 39 would be unconstitutional, in so far as it provides for the steps to be taken by the board of supervisors; but under the present Constitution the power to assess and collect taxes is conferred upon "the corporate authorities," with the restriction that

the assessment shall be made where the property is situated and in the manner prescribed by law. We cannot see that said section 39 is in conflict with this requirement. The board of supervisors is a "corporate authority" of the district, and the assessment and levy according to the terms of the decree are to be made as "prescribed by law."

In the case of McCabe v. Carpenter, 102 Cal. 470, 36 Pac. 837, it is said: "It is contended that the law [referring to a statute establishing high schools] is unconstitutional, in that it authorizes the county superintendent of schools to furnish to the board of supervisors an estimate for the tax and makes it the duty of the board to proceed to fix a rate which will realize the amount, thus leaving the amount of the tax wholly to the discretion of an executive officer, and leaving no discretion in the board." The conclusion of the court, announced by Commissioner Temple, was: "But since the power to levy a tax is purely legislative, it would seem to follow that the power cannot be vested in any other authority of the local corporation than the body in which is vested the legislative power of such municipal corporation. At all events it could not vest such power in an executive officer of such corporation." Here the board of supervisors is authorized to make the levy in case of the refusal of the directors to act, the statute in question makes the board a part of the "corporate authority" of the district, the board is undoubtedly a legislative body, it does not make the assessment, but bases the levy upon the assessment made by the county assessor, and we fail to see how there is any violation of the provisions of the Constitution, especially when, as here, the district is confined to one county.

In Board of Education v. Board of Trustees, 129 Cal. 604, 62 Pac. 173, there is an interesting discussion of article 1, § 12, of the Constitution, and it is said by the court through the commissioner who is the amicus curiæ herein: "These provisions apply to all kinds of public or municipal corporations, or we may say to all municipalities and quasi municipalities. These differ greatly in their organization. In some, as in cities generally, the powers of the government are distributed into separate departments; in others all the powers of the municipality are invested in one body-as, e. g., in the board of supervisors of a county, the board of trustees of a school district, etc. In the latter case the board of supervisors or board of trustees, or other governing body, constitutes the corporate authority of the municipality, in which might be vested the power to impose taxes." So it may be admitted that in the first instance the duty here is cast upon the board of directors of the district to make the levy: but in case of its refusal to act the board of supervisors constitutes the legislative corporate authority to supply the omission. The power of the Legislature is not exhausted

when it confers the authority upon the directors; but it may also authorize the supervisors to perform a similar function in certain contingencies. This it has done. It would seem just and reasonable that this power should be lodged in some body outside of the board of directors of the district to meet such an emergency as is here presented, where, according to the findings of the court, said directors have repudiated a legal obligation and have endeavored to prevent its enforcement.

There seems to be no decision of the Supreme Court passing directly upon the constitutionality of the proceeding herein involved, but an application of the principles so clearly enunciated in the able opinion of Mr. Justice Harrison in the leading case of In re Madera Irrigation District, 92 Cal. 296, 28 Pac. 272. 675, 14 L. R. A. 755, 27 Am. St. Rep. 106, wherein the Wright irrigation law is upheld, in our opinion leads to the conclusion that said section 39 is not obnoxious to the Constitution. In that case it is said: "Whenever a special district of the state requires special legislation therefor, it is competent for the Legislature by general law to authorize the organization of such district into a public corporation, with such powers of government as it may choose to confer upon it. It is not necessary that such public corporation should be vested with all governmental powers, but the Legislature may clothe it with such as in its judgment are proper to be exercised within and for the benefit of such district." And it was held that these corporations are mere agencies of the state in local government. that they possess only the powers conferred by the Legislature, and that it was the purpose of the Constitution to leave in the hands of the Legislature full discretion in reference to the government of said corporations. In the exercise of this discretion the Legislature has conferred upon the legislative body of the county a certain supervisory authority over the district. This seems to be a reasonable provision in furtherance of the design of the framers of the Constitution. As the section, when fairly construed, requires the board of supervisors to base the levy upon the assessment of the county assessor, there would seem to be no force in the contention of the appellant that the property owners have no opportunity to be heard to correct any defects in the assessment.

The most serious objection, probably, is the one made by the amicus curi: "That an annual assessment upon the real property in the district is the exclusive mode provided by the statute for the payment of the principal of the bonds authorized by the statute to be issued." In this connection he cites the case of Merchants' Bank v. Escondido District, 144 Cal. 329, 77 Pac. 937. It is therein stated: "The act providing for the organization of the district, and the organiza

tion of the district under the provisions of the act by the votes of the electors, cannot be otherwise regarded than as a contract between the state and the individuals whose property was thereby affected." The sound

ness of that proposition would scarcely be questioned by any one. It is further stated that: "The burden thus imposed was that the bonds issued under the act should be paid by revenue derived from an annual assessment upon the real property of the district, and that their lands should be and remain liable' for such assessment, and this implied that this should be the extent of the burden. But by the amendatory act the board of directors is authorized, without the consent or even the knowledge of the landowners, to pledge or hypothecate the property acquired with their money." Hence it was held that the amendment would deprive the landowners of their property without due process of law and was also a violation of the inhibition against impairing the obligation of contracts, since the property owners were only liable "for continued assessments until the balance of the bonds shall be paid." No fault can be found with that decision as applied to the facts of the case. The amendment held unconstitutional was enacted after the issuance of the bonds, and it is too clear for argument that it gave the bondholders security that was not provided by the law at the time the obligation was incurred by the district, and was therefore in violation of the terms of the contract between the debtors and creditors. The case is in point here if it can be shown that the method provided for the collection of the debt adds to the property owners an additional burden to what was imposed by the statute at the time the bonds were issued. But, as we have seen, the statute has not been substantially changed, and so the question resolves itself into one as to the proper construction of said section 39. The statute no doubt contemplates annual assessments, as it is constructed upon the theory that the board of directors will do its duty, but it does not prescribe that this shall be the exclusive method of raising the money to pay the bonds.

The argument made by respondent is substantially this: The board of directors of the district is not required to levy the assessment at any particular date, but must make it after the equalization of the assessment made by the assessor of the district. This levy by said board may be as late, then, as the end of the fiscal year, and hence it could not be said to be in default till the end of the year, and hence the powers of the supervisors could not be invoked till after that time. The power of the board of supervisors must therefore be exercised in making the levy for the payment of interest coupons or installment coupons which matured in a

previous year. Furthermore, the statute does not provide the time when the levy shall be made by the supervisors, and there is nothing therein inconsistent with the position that one levy may be made for the payment of the aggregate amount of installments of interest and principal due in successive years. The contention of the amicus curiæ is: "If the power still exists in the directors or supervisors to make any assessment and levy, it can only be to make several assessments for each year, and each assessment must be of the values of the lands of the district in that year." This, he contends, is impracticable, and hence he would have the court reach the conclusion that there is no method provided for the payment of the debt and the bondholders are without redress.

We are not inclined to consider the law so impotent as is implied by appellants' argument. We hold that the burdens of the property owners have not been increased since they incurred the obligation to pay these bonds. The statute, in our opinion, does not expressly nor by implication prohibit the method adopted herein for the collection of the money due. In fact, the forbearance to sue for several years and the use of one levy, instead of many, constituted a favor to the debtors and tended, not to increase, but to reduce, the burden of the property owner.

We fail to see any force in the contention that the judgment is erroneous because it

makes no provision for other creditors. The debtor should hardly be allowed to raise this question when it appears that the amount claimed is due the creditor who has brought the suit. Again, there is nothing to show that the other bonds issued have not been paid, or that there is any other creditor who desires to participate in the fund. If there are other creditors whose claim the appellants are solicitous to have paid, it is fair to presume that respondent will not object to an increase in the amount of the levy so as to meet the other obligations of the district.

The question of laches suggested by appellants is disposed of by the case of Cahill v. Superior Court, 145 Cal. 42, 78 Pac. 467. We think the circumstances detailed in the petition for the writ excuse the delay, and show that no prejudice has been caused thereby to appellants.

The court below is directed to modify the judgment by striking therefrom the following: "And when sufficient money is collected the defendant shall pay to plaintiff from the sum collected whatever amounts are collected in said assessments until said plaintiff shall be paid the said amounts hereinbefore referred to, to wit, the sum of $12,262.96, together with interest thereon at the rate of 7 per cent. per annum from the 26th day of August, 1902, and the costs of suit herein"-and as so modified the judgment is affirmed.

We concur: CHIPMAN, P. J.; HART, J.

(32 Utah, 406)

CHRISTENSEN v. BEEBE, Sheriff. (Supreme Court of Utah. June 25, 1907. On Rehearing, Aug. 1, 1907.)

1. HOMESTEAD SALE - EXEMPTION OF PRO

CEEDS.

The acceptance of an oral promise to deliver brick in consideration of the conveyance of land constituting a homestead is not a "receipt of the proceeds" of a sale thereof within Rev. St. 1898. § 1158, exempting the "proceeds" of a sale of a homestead for one year after the "receipt thereof," and the year of exemption does not run from that time, but from the time of delivery of the brick. 2. SAME.

The term "proceeds," used in Rev. St. 1898, § 1158, exempting the "proceeds" of a sale of a homestead for one year after the receipt thereof, means some tangible thing which is the subject of manual delivery and receipt.

On Petition for Rehearing.

3. SHERIFFS--LIABILITY FOR MISCONDUCT.

Though property may have been lawfully seized by a sheriff under an execution, yet, if he thereafter wrongfully converted it to his own use, he is liable.

one Peterson for a consideration of $100, which consideration Peterson agreed to pay to plaintiff in the summer or fall of 1904 by the delivery of bricks or adobes to him; that plaintiff always has claimed, and now claims, said brick as exempt, the same being part of the proceeds of the sale of said homestead, and that said homestead was sold and said brick were agreed to be delivered and received and used for the purpose of constructing a dwelling house as a home upon plaintiff's real estate at Castle Dale, Emery county, Utah, now owned and occupied as a homestead by the plaintiff, the value of which does not exceed the value of $800, and which is all the real estate owned by the plaintiff; that no part of said brick had ever been delivered to plaintiff, and he had never received the same, or any part thereof, but that the same were levied upon by the defendant as the property of plaintiff before delivery to or the receipt thereof by him; that ever since the levy and seizure of said brick the defendant has wrongfully de

Appeal from District Court, Seventh Dis- tained the same from the plaintiff, and on trict; Ferdinand Erickson, Judge.

Action by Lars Christensen against Oscar Beebe, as sheriff. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

F. E. Wocds, S. A. King, and Saml. Russell, for appellant. H. J. Dinniny, for respondent.

FRICK, J. The plaintiff sues to recover the value of certain property alleged to have been converted by the defendant. The questions to be determined arise out of the facts stated in the complaint wherein it is, in substance, alleged that plaintiff, at the time mentioned in the complaint, was, and now is, a resident of Utah, the head of a family consisting of his wife and three children, all of whom are dependent on him for support: that on June 26, 1905, and from thenceforth the plaintiff was, and now is, the owner of and entitled to the possession of 10,000 brick of the value of $65; that on the said 26th day of June. at Castle Dale, Emery county, Utah, by virtue of an execution duly issued by the clerk of the district court of said county upon a judgment duly filed therein, the defendant, as sheriff of said county, wrongfully and unlawfully levied upon and seized said 10,000 brick as the property of the plaintiff; that the judgment upon which said execution was issued was not recovered, either in whole or in part, for the purchase price of said brick; that said brick at the time of levy and seizure were, and now are, exempt from execution sale under process under the laws of this state; that said brick were the proceeds of a sale of plaintiff's real estate constituting his homestead, not exceeding in value the sum of $150, which plaintiff, on or about the month of May, 1903, sold and thereafter duly conveyed to

91 P.-9

the 6th day of July, 1905, at Castle Dale. Emery county, Utah, the said defendant wrongfully converted said brick to his own use, to the damage of the plaintiff in the sum of $65; that on the 25th day of July, 1905, and before the commencement of this action, the plaintiff demanded said brick from the defendant, and on said day notified him that he claimed the same as exempt from levy upon execution. Upon substantially the foregoing allegations plaintiff prayed judgment against said defendant for the value of said brick. The defendant appeared and demurred to the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action. The demurrer was sustained; and, the plaintiff electing to stand on his complaint, the court duly entered judgment against him, dismissing the action, from which plaintiff appeals.

The only error assigned is the action of the court in sustaining the demurrer. It will be observed that the complaint is not as clear as it might be with regard to the allegations constituting the alleged conversion of the brick. There is no direct allegation that defendant sold the brick under the execution, under which the levy was made, but it is directly alleged that defendant wrongfully converted the same to his own use. If this were so, the levy under the execution, however lawful, would afford the defendant no protection, regardless of whether the brick were subject to execution or not. gard to this, however, and in respect to other minor defects of the complaint, both parties, with a most commendable spirit of fairness, have stripped the matter from technicalities, and have asked that the rea! and only question involved, to wit, the exempt character of the brick, be considered and determined by us, and have expressed a

desire that for that purpose the complaint should be considered as sufficient. In deference to those wishes we shall so consider it. The question therefore is, were the 10,000 brick exempt as a part of the proceeds of the sale of plaintiff's homestead, within the purview of section 1158, Rev. St. 1898, which, so far as material here, provides, "and the proceeds of the sale thereof (homestead), to the amount of the exemption existing at the time of sale, shall be exempt from execution or other process for one year after the receipt thereof by the person entitled to the exemption"? We remark, first, that there can be no reasonable doubt with regard to the 10,000 brick as constituting a part of the proceeds of the sale of plaintiff's real estate, which it is alleged, and admitted by the demurrer, constituted his homestead, and thus at the time of the sale thereof was exempt, together with the proceeds thereof to the extent of at least $1,500. The exempt character of the proceeds, however, continued so only for the period of one year after the "receipt thereof" by the plaintiff, and thus the question arises, what constitutes the receipt of the proceeds of the sale, within the purview of section 1158 above quoted? Defendant's counsel contends that the proceeds as applicable to voluntary sales of homestead consists in whatever the seller agrees to accept and receive as the consideration or payment for the homestead, be the same money, property, or anything else which represents property or value. This contention seems not only just upon principle, but, as might well be expected, is also sustained by the authorities. Bailey v. Steve, 35 N. W. 735, 70 Wis. 316; Phelps v. Harris, 101 U. S. 380, 25 L. Ed. 855; Hoppe v. Goldberg, 53 N. W. 17, 82 Wis. 660. Of course, the meaning of the term "proceeds" may be extended or restricted in accordance with the particular subject-matter out of which they arise, or with regard to the peculiar disposition or application to be made of them. With regard to a forced sale upon execution, the proceeds are, of course, always understood to be in the form of money, or some other medium of exchange, the equivalent of money; or, if an agent were empowered to sell goods, or collect accounts, and account for the proceeds derived therefrom, in the absence of an express agreement to the contrary, he would have to account in money, or in some medium of exchange which passed as such. When we have reference, however, to a voluntary sale or disposition of a homestead, within the provisions of section 1158, "proceeds," of necessity, and for the benefit of the owner, must be considered as comprising any tangible thing of value he is willing to accept. The exemption of a homestead, or the proceeds thereof, is grounded on public policy, and should not be restricted to money only. The different meanings applied to proceeds are shown in volume 6 of Words and

Phrases, under the title "Proceeds," commencing on page 5639, to which we refer for further illustration.

Plaintiff's counsel strenuously insist that the 10,000 brick and nothing else constituted the proceeds of the sale or exchange of plaintiff's homestead, and in view that they had not been segregated, that is, set apart as his brick, and had not been delivered to nor received by him within a year prior to the levy, that therefore they did not lose their exempt character, and were not subject to sale on execution. Upon the other hand, defendant's counsel contends with equal fervor that the proceeds of sale of plaintiff's homestead consisted of Peterson's promise and obligation to deliver the brick to plaintiff, and that plaintiff accepted this promise, and therefore received it in May, 1903, when the sale of the homestead took place, and that the promise and obligation, that is, the debt owing by l'eterson to plaintiff, was exempt for a period of one year and no longer. This brings us to the real question in this case, to wit, what is meant by the phrase in section 1158, in referring to the proceeds, that they shall be exempt "for one year after the receipt thereof"? The section should be construed, if possible, so as to carry into effect the obvious purpose and intention of the Legislature in adopting it. Statutes of this kind are grounded upon sound public policy, and thus fall within the category of statutes usually favored by the courts, and hence are generally accorded what is termed a liberal construction, with the view of fully effecting the purpose aimed at by the Legislature in adopting them. While all this is true, courts cannot rightfully extend the period of time within which a certain class of persons may claim designated property as exempt from forced application to the payment of their debts. This power belongs to the Legislature, not to the courts. But this court should not by strict construction frustrate that which the Legislature sought to accomplish; nor should it do this by permitting the case actually presented to be determined upon principles other than those applicable to the facts, simply because it might be easier to do so, or because from an apparent analogy the case seems to fall within a class of decisions which are, in fact, based upon statutes greatly differing from our own. By adopting section 1158 the Legislature evidently intended that the owner of a homestead should enjoy the fullest opportunity to use and to dispose of it and to have one full year in which to acquire another with the proceeds derived from the first, and for that purpose to be in actual possession of such proceeds, so that he may apply them to the purpose intended. If the Legislature did not intend just this, it would have been easy for it to have limited the time within which another homestead was to be acquired to one year from the sale of the first. The mere fact that the terms "proceeds" and the "receipt thereof" are used is conclusive that

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