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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 il gainst 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 taxDayers of the Perris irrigation district can be heard to defend the present proceeding on any of the grounds litigated, or which night have been litig:11.'1, 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 18-19, 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 :issess and collect taxes is conferrell 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 supervisor's 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 r. Carpenter, 102 Cal. 170, 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 al 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 provi. sions 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 rested 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 conters the authority upon the di tion of the district under the provisions of rectors; but it may also authorize the super the act by the votes of the electors, cannot visors to perform a similar function in cer be otherwise regarded than as a contract betain contingencies. This it has done. It

tween the state and the individuals whose would seem just and reasonable that this

property was thereby affected." The soundpower should be lodged in some boily outside

ness of that proposition would scarcely be of the board of directors of the district to

questioned by any one. It is further stated meet such an emergency as is here presented, that: "The burden thus imposed was that where, according to the findings of the court,

the bonds issued under the act should be said directors have repudiated a legal obli

paid by revenue derived from an annual asgation and have endeavored to prevent its

sessment upon the real property of the disenforcement.

trict, and that their lands 'should be and There seeris to be no decision of the Su

remain liable for such assessment, and this preme Court passing directly upon the constitutionality of the proceeding herein involv

implied that this should be the extent of

the burden. But by the amendatory act the ed, but an application of the principles so

board of directors is authorized, without the learly enunciated in the able opinion of Mr.

consent or even the knowledge of the landJustice Ilarrison in the leading case of In re Madera Irrigation District, 92 Cal. 296, 28

owners, to pledge or hypothecate the property Pac. 272. 673, 14 L. R. A. 73.7, 27 Am. St.

acquired with their money.” Hence it was Rej. 100, wherein the Wright irrigation law

held that the amendment would deprive the

landowners of their property without due is upheld, in our opinion leads to the conclu

process of law and was also a violation of sion that said section 39 is not obnoxious to

the inbibition against impairing the obligathe Constitution. In that case it is said: "Whenever a special district of the state re

tion of contracts, since the property owners

were only liable "for continued assessments quires special legislation therefor, it is com

until the balance of the bonds shall be paid." petent for the Legislature by general law to

Yo fault can be found with that decision as authorize the organization of such district into a public corporation, with such powers of

applied to the facts of the case. The amend

ment held unconstitutional was enacted after government as it may choose to confer upon

the issuance of the bonds, and it is tuo clear it. It is not necessary that such public corporation should be vested with all govern

for argument that it gave the bondholders mental powers, but the Legislature may clothie

security that was not provided by the law it with such as in its judgment are proper to

at the time the obligation was incurred by he exercised within and for the benefit of

the district, and was therefore in violation of such district." And it was held that these

the terms of the contract between the debtors corporations are mere agencies of the state

and creditors. The case is in point here if it in local government, that they possess only

can be shown that the method provided for the powers conferred by the Legislature, and

the collection of the debt adds to the property that it was the purpose of the Constitution

owners an additional burden to what was imto leave in the hands of the Legislature full posed by the statute at the time the bonds discretion in reference to the government of were issued. But, as we have seen, the statsaid corporations. In the exercise of this dis ute has not been substantially changed, and cretion the Legislature has conferred upon so the question resolves itself into one as the legislative body of the county a certain to the proper construction of said section 39. supervisory authority over the district. This The statute no doubt contemplates annual seems to be a reasonable provision in further assessments, as it is constructed upon the ance of the design of the framers of the Con theory that the board of directors will do its stitution. As the section, when fairly con duty, but it does not prescribe that this strued, requires the board of supervisors to shall be the exclusive method of raising the base the levy upon the assessment of the

money to pay the bonds. county assessor, there would seem to be no

The argument made by respondent is subforce in the contention of the appellant that

stantially this: The board of directors of the property owners have no opportunity to

the district is not required to levy the asbe heard to correct any defects in the assess

sessment at any particular date, but must ment.

make it after the equalization of the assessThe most serious objection, probably, is the

ment made by the assessor of the distriot. one made by the amicus curiar: "That an

This levy by said board may be as late, then, annual assessment upon the real property in the district is the exclusive mode provided

as the end of the fiscal year, and hence it by the statute for the payment of the prin

could not be said to be in default till the end inal of the bonds authorized by the statute

of the year, and hence the powers of the to be issued." In this connection he citos

supervisors could not be invoked till after the case of Merchants' Bank v. Escondido that time. The power of the board of superDistrict, 144 Cal. 329. 77 Pac. 937. It is l visors must therefore be exercised in making therein stated: “The act providing for the the levy for the payment of interest (oupons organization of the district, and the organiza- or installment coupons which matured in a

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previous year. Furthermore, the statute does makes no provision for other creditors. The not provide the time when the levy shall be debtor should hardly be allowed to raise this made by the supervisors, and there is noth question when it appears that the amount ing therein inconsistent with the position claimed is due the creditor who has brought that one levy may be made for the payment the suit. Again, there is nothing to show of the aggregate amount of installments of that the other bonds issued have not been interest and principal due in successive years. paid, or that there is any other creditor who The contention of the amicus curia is: “If desires to participate in the fund. If there the power still exists in the directors or super are other creditors whose claim the appelvisors to make any assessment and levy, it lants are solicitous to have paid, it is fair can only be to make several assessments for to presume that respondent will not object to each year, and each assessment must be of an increase in the amount of the levy so as the values of the lands of the district in that to meet the other obligations of the district. year." This, he contends, is impracticable, The question of laches suggested by appeland hence he would have the court reach the lants is disposed of by the case of Cahill v. Suconclusion that there is no method provided perior Court, 145 Cal. 42, 78 Pac. 407. We for the payment of the debt and the bond- think the circumstances detailed in the petiholders are without redress.

tion for the writ excuse the delay, and show We are not inclined to consider the law that no prejudice has been caused thereby to so impotent as is implied by appellants' ar appellants. gument. We hold that the burdens of the The court below is directed to modify the property owners have not been increased | judgment by striking therefrom the following: since they incurred the obligation to pay "And when sufficient money is collected the these bonds. The statute, in our opinion, defendant shall pay to plaintiff from the sum does not expressly nor by implication pro collected whatever amounts are collected in hibit the method adopted herein for the col said assessments until said plaintiff shall be lection of the money due. In fact, the for paid the said amounts hereinbefore referred bearance to sue for several years and the use to, to wit, the sum of $12,202.96, together of one levy, instead of many, constituted a with interest thereon at the rate of 7 per cent. favor to the debtors and tended, not to in per annum from the 26th day of August, 1902, (rease, but to reduce, the burden of the prop and the costs of suit herein"--and as so modierty owner.

fied the judgment is affirmed. We fail to see any force in the contention that the judgment is erroneous because it We concur: CHIPMAN, P. J.; HART, J.

(32 Utah, 406)

one Peterson for a consideration of $100, CHRISTENSEN V. BEEBE, Sheriff, which consideration Peterson agreed to pay (Supreme Court of Utah. June 25, 1907. On to plaintiff in the summer or fall of 1904 by Rehearing, Aug. 1, 1907.)

the delivery of bricks or adobes to him; 1. HOMESTEAD - SALE – EXEMPTION OF PRO that plaintiff always has claimed, and now CEEDS.

claims, said brick as exempt, the same being The acceptance of an oral promise to deliver brick in consideration of the conveyance

part of the proceeds of the sale of said of land cons:ituting a homestead is not a "re

homestead, and that said homestead was ceipt of the proceeds” of a sale thereof within sold and said brick were agreed to be deRev. St. 1808, § 1158, exempting the "pro livered and received and used for the purceeds" of a sale of a homestead for one year after the "receipt thereof," and the year of

pose of constructing a dwelling house as a exemption does not run from that time, but home upon plaintiff's real estate at Castle from the time of delivery of the brick.

Dale, Emery county, Utah, now owned and 2. SAME.

occupied as a homestead by the plaintiff, the The term "proceeds," used in Rev. St.

value of which does not exceed the value of 1898, § 1158, exempting the "proceeds" of a sale of a homestead for one year after the re

$800, and which is all the real estate owned ceipt thereof, means some tangible thing which by the plaintiff; that no part of said brick is the subject of manual delivery and receipt. had ever been delivered to plaintiff, and he On Petition for Rehearing.

had never received the same, or any part 3. SHERIFFS--LIABILITY FOR MISCONDUCT.

thereof, but that the same were levied upon Though property may have been lawfully by the defendant as the property of plaintiff seized by a sheriff under an execution, yet, if before delivery to or the receipt thereof by he thereafter wrongfully converted it to his own

him; that ever since the levy and seizure of use, he is liable.

said brick the defendant has wrongfully deAppeal from District Court, Seventh Dis tained the same from the plaintiff, and on trict; Ferdinand Erickson, Judge.

the 6th day of July, 1905, at Castle Dale. Action by Lars Christensen against Oscar Emery county, Utah, the said defendant B В pe, as sheriff. lirom a judgment for de wrongfully converted said brick to his own fendant, plaintiff appeals. Reversed and use, to the damage of the plaintiff in the sum remanded, with directions.

of $05; that on the 25th day of July, 1905, F. E. Wocds, S. A. King, and Saml. Rus

and before the commencement of this acsell, for appellant. H. J. Dinning, for re

tion, the plaintiff demanded said brick from spondent.

the defendant, and on said day notified him

that he claimed the same as exempt from FRICK, J. The plaintiff sues to recover levy upon execution. Upon substantially the the value of certain property alleged to have foregoing allegations plaintiff prayed judg. been converted by the defendant. The ques ment against said defendant for the value of tions to be determined arise out of the facts said brick. The defendant appeared and destated in the complaint wherein it is, in sub

murred to the complaint upon the ground stance, alleged that plaintiff, at the time men

that it failed to state facts sufficient to contioned in the complaint, was, and now is, a

stitute a cause of action. The demurrer was resident of Utah, the head of a family con

sustained; and, the plaintiff electing to stand sisting of his wife and three children, all of on his complaint, the court duly entered whom are dependent on him for support; judgment against him, dismissing the acthat on June 26, 1905, and from thenceforth

tion, from which plaintiff appeals. the plaintiff was, and now is, the owner of The only error assigned is the action of the and entitled to the possession of 10,000 brick court in sustaining the demurrer. It will be of the value of $65; that on the said 26th observed that the complaint is not as clear day of June. at Castle Dale, Emery county, as it might be with regard to the allegations Utah, by virtue of an execution duly issued constituting the alleged conversion of the by the clerk of the district court of said brick. There is no direct allegation that county upon a judgment duly filed therein, defendant sold the brick under the executhe defendant, as sheriff of said county, tion, under which the levy was made, but it wrongfully and unlawfully levied upon and

is directly alleged that defendant wrongfully seized said 10,000 brick as the property of converted the same to his own use. If this the plaintiff; that the judgment upon which were so, the levy under the execution, howsaid execution was issued was not recovered, ever lawful, would afford the defendant no either in whole or in part, for the purchase protection, regardless of whether the brick price of said brick; that said brick at the were subject to execution or not. With retime of levy and seizure were, and now are,

gard to this, however, and in respect to exempt from execution sale under process other minor defects of the complaint, both under the laws of this state; that said brick parties, with a most commendable spirit of were the proceeds of a sale of plaintiff's real fairness, have stripped the matter from estate constituting his homestead, not ex technicalities, and bave asked that the real ceeding in value the sum of $150, which and only question involved, to wit, the explaintiff, on or about the month of May, empt character of the brick, be considered 1903, sold and thereafter duly conveyed to and determined by us, and have expressed a

91 P.-9

clesire that for that purpose the complaint Phrases, under the title “Proceeds," comshould be considered as sufficient. In defer mencing on page 5039, to which we refer for ence to those wishes we shall so consider it. further illustration. The question therefore is, were the 10,000 Plaintiff's counsel strenuously insist that brick exempt as a part of the proceeds of the 10,000 brick and nothing else constituted the sale of plaintiff's homestead, within the the proceeds of the sale or exchange of plainpurview of section 1158, Rev. St. 1898, which, tiff's homestead, and in view that they had so far as material here, provides, "and the not been segregated, that is, set apart as his proceeds of the sale thereof (homestead), to brick, and had not been delivered to nor rethe amount of the exemption existing at the

ceived by him within a year prior to the levy, , time of sale, shall be exempt from execution

that therefore they did not lose their exempt or other process for one year after the re character, and were not subject to sale on ceipt thereof by the person entitled to the execution. Upon the other hand, defendant's exemption"? We remark, first, that there can counsel contends with equal fervor that the be no reasonable doubt with regard to the proceeds of sale of plaintiff's homestead con10,000 brick as constituting a part of the

sisted of Peterson's promise and obligation to proceeds of the sale of plaintiff's real estate,

deliver the brick to plaintiff, and that plainwhich it is alleged, and admitted by the de

tiff accepted this promise, and therefore remurrer, constituted his homestead, and thus ceived it in May, 1903, when the sale of the at the time of the sale thereof was exempt,

homestead took place, and that the promise together with the proceeds thereof to the ex

and obligation, that is, the debt owing by Petent of at least $1,500. The exempt charac

terson to plaintiff, was exempt for a period of ter of the proceeds, however, continued so

one year and no longer. This brings us to only for the period of one year after the

the real question in this case, to wit, what is “receipt thereof" by the plaintiff, and thus meant by the phrase in section 1158, in referthe question arises, what constitutes the re ring to the proceeds, that they shall be exceipt of the proceeds of the sale, within the empt "for one year after the receipt thereof”? purview of section 1158 above quoted ? De

The section should be construed, if possible, fendant's counsel contends that the proceeds

so as to carry into effect the obvious purpose

and intention of the Legislature in adopting as applicable to voluntary sales of homestead consists in whatever the seller agrees to ac

it. Statutes of this kind are grounded upon cept and receive as the consideration or pay

sound public policy, and thus fall within the ment for the homestead, be the same money,

category of statutes usually favored by the property, or anything else which represents courts, and hence are generally accorded what property or value. This contention seems

is termed a liberal construction, with the view not only just upon principle, but, as might

of fully effecting the purpose aimed at by the well be expected, is also sustained by the

Legislature in adopting them. While all this authorities. Bailey v. Steve, 35 N. W. 735,

is true, courts cannot rightfully extend the 70 Wis. 316; Phelps v. Harris, 101 U. S. 380,

period of time within which a certain class 25 L. Ed. 855; Hoppe v. Goldberg, 53 N. W.

of persons may claim designated property 17, 82 Wis. 660. Of course, the meaning of

as exempt from forced application to the the term "proceeds" may be extended or re

payment of their debts. This power belongs stricted in accordance with the particular sub

to the Legislature, not to the courts. But

this court should not by strict construcject-matter out of which they arise, or with

tion frustrate that which the Legislature regard to the peculiar disposition or application to be made of them. With regard to

sought to accomplish; nor should it do this

by permitting the case actually presented to a forced sale upon execution, the proceeds

be determined upon principles other than are, of course, always understood to be in the

those applicable to the facts, simply because form of money, or some other medium of

it might be easier to do so, or because from exchange, the equivalent of money; or, if an

an apparent analogy the case seems to fall agent were empowered to sell goods, or col

within a class of decisions which are, in fact, lect accounts, and account for the proceeds

based upon statutes greatly differing from derived therefrom, in the absence of an ex

our own. By adopting section 1158 the Leg. press agreement to the contrary, he would

islature evidently intended that the owner of have to account in money, or in some medi

a homestead should enjoy the fullest opporum of exchange which passed as such.

tunity to use and to dispose of it and to have When we have reference, however, to a vol

one full year in which to acquire another untary sale or disposition of a homestead,

with the proceeds derived from the first, and within the provisions of section 1158, "pro

for that purpose to be in actual possession ceeds," of necessity, and for the benefit of

of such proceeds, so that he may apply them the owner, must be considered as comprising

to the purpose intended. If the Legislature any tangible thing of value he is willing to did not intend just this, it would have been accept. The exemption of a homestead, or easy for it to have limited the time within the proceeds thereof, is grounded on public which another homestead was to be acquired policy, and should not be restricted to money to one year from the sale of the first. The only. The different meanings applied to pro mere fact that the terms "proceeds" and the ceeds are shown in volume 6 of Words and "receipt thereof” are used is conclusive that

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