Chauncey v. Wass , 35 Minn. 1 ( 1885 )

Mitchell and Dickinson, JJ.,

(concurring.) The opinion of the chief justice is so exhaustive as to leave nothing to be said, except that we concur. This case has been almost overwhelmed by the most voluminous briefs and arguments, but, like all questions of statutory construction, it comes down to a question of legislative intent; and whether we consider the general plan and scheme of this tax law as a whole, or its several provisions separately, we can find no’escape from the conclusion that delinquency (including all that the term implies) is the very issue tendered in these proceedings, and upon which the judgment is conclusive; and that everything, whether payment of the tax, exemption of the property from taxation, illegality of the tax, or anything else which would show that the land was not delinquent in fact, was intended to be mere matter of defence. To give it any other construction would, as it seems to us, be an act of mere judicial legislation. Therefore, if the question were res nova, we would have no doubt of the correctness of the conclusion reached in the opinion. There is, however, another important consideration to which the chief justice has not alluded. We refer to the rule of stare ■decisis. The doctrine of the opinion is not, as many seem to suppose, new. To say nothing of other decisions of this court in which it is assumed or implied, there are at least two cases in which this court had previously decided this question. The decision in the case of County of Aitkin v. Morrison, 25 Minn. 295, rendered over eight years ago, rests entirely upon this construction of the statute. The precise point in principle involved in the present case was squarely decided between six and seven years ago in the case of County of Chisago v. St. Paul & Duluth R. Co., 27 Minn. 109, (6 N. W. Rep. 454,) in which this court uses the following language: “It is the policy of the statute that every objection to the enforcement of the taxes appearing on the list filed should be litigated and decided in those proceedings. That the land is exempt, or that the tax has been paid, is a defence which must be ‘ made to appear by answer and proof.’ ” So far as we know, these decisions passed unchallenged, and elicited no adverse criticism from the bar, at least until after the filing of the first •opinion in the present case; and, although four sessions of the legislature have been held since the decision of the last case referred to, yet the statute as thus construed has been allowed to stand without amendment in this respect. This construction, having stood so long unquestioned, has become a rule of property, upon the faith of which real estate has been bought and sold and improved, and ought not now tp be departed from.

This feature of the tax law now under consideration is, in our opinion, both harsh and dangerous; but the remedy is with the legislature, which makes the laws, and not with the courts, whose only power is to apply them.