Winton v. Day , 96 Miss. 1 ( 1909 )

Mayes, J.,

delivered tlie opinion of tlie court.

This suit was begun in tbe chancery court of Scott county, and is called a proceeding to specifically perform a contract. A demurrer was filed to tbe bill of complaint, and overruled by tbe ■chancellor, and tbe cause appealed here.

As a bill for specific performance this proceeding is a novelty; but, since it seems to have been the purpose of tbe litigating parties to invite tbe court to pass upon tbe constitutionality of chapter 121, p. 130, of tbe Laws of 1908, and tbe questions raised by tlie demurrer are wholly addressed to tbe validity of the above act, we confine ourselves to this question, since tbe appellant states that be is willing to comply with the so-called contract for tbe purchase of tbe property in question if tbe appellee can make title. In short, all questions are eliminated save that of tbe constitutionality of tbe above act. There is no fact alleged in tbe bill of complaint which would make void tbe tax of July 6, 1868, even when confessed on demurrer,, as a tax title is never presumed invalid as a matter of law, when once a sale for taxes is shown, unless tbe facts alleged, when taken as true, show tbe invalidity. Tbe allegation that tbe sale of tbe land for tbe taxes 1868 was void, because “it appears only in tbe obsolete records, and was not brought forward under tbe abatement act, or tbe act •of 1880 [Acts 1880, p. 88, c. 9] or 1890 [Acts 1890, p. 16, <3. 5], requiring compilation of lands claimed to be held by tbe state,” would not warrant a bolding that tbe tax title was void, even when confessed by demurrer, as those acts did not in any way cancel tax sales which were not listed in compliance with tbe acts, unless such lands were omitted by and with tbe advice ■of tbe attorney-general, as required in section 2 of tbe act of 1880, and the bill does not so allege. Unless chapter 121, p. 130, of tbe Acts of T908, can be upheld as constitutional, as (constitutional, it is plain that this demurrer should have been sustained.

Counsel fox appellee concede that this act constitutes a grant by tbe legislature and it seems to us that wben this concession is made tbe case is ended. Counsel for appellee say “that tbe legislature, well aware of tbe hostility of the executive to the measure, made tbe statute a legislative grant.” If this be correct, and if is our view that it is, let us see bow tbe act is affected by tbe Constitution. Section 90 provides that “tbe legislature shall not pass any local, private, or special laws granting any lands under control of tbe state to any person or corporation.” Const, sec. 90, par. “u.” Again, by section 95 of tbe Constitution it is provided that “lands belonging to or under tbe control of tbe state, shall never be donated directly or indirectly, to private corporations or individuals, or to railroad companies.” Keeping in mind these two provisions of tbe Constitution, let us see what tbe act does. Section 1 provides that all lands struck off to tbe state prior to 1815 for delinquent taxes, and which were not embraced in tbe list returned that year to tbe auditor under tbe abatement act, and which have not previously and validly been disposed of by tbe state of Mississippi, and which are now in tbe possession, actual or constructive, of bona fide owners, and legally assessed for taxes as required by law, are hereby relinquished to those persons who, but for the sale or sales', would now be lawfully and equitably tbe owners thereof. Thus by this section it is seen that tbe act is special, it is private, and it grants lands under the control of tbe state to private individuals; that is to say, it makes a grant of lands which “have not previously and validly been disposed of by the state”' — that is to say, such lands as tbe state now owns under valid tax titles acquired prior to 1815 — 'and these lands, now* validly owned by the state and finder its control, are granted to those persons, and those only, “who, but for the prior sale or sales to the state, would now be ' the.lawful and equitable owners.” Compare this section of tbe statute with paragraph “u” of section 90' of tbe Constitution, which provides that there 'shall not be any grant “of lands under tbe control of tbe state to any person or corporation,” and tbe conflict of this section of the statute with the clause' of the Constitution just quoted is so perfectly apparent that it can admit of no question.

But-, if this were not truei, the statute violates section 95 of the Constitution, as it is a donation of lands “belonging to> or under the control of the state/’ within the meaning of section 95 of the Constitution. Section 2 of the act also violates both sections of the Constitution above quoted, since it mates a grant or donation of lands belonging to the state to particular individuals or persons. Under no provision of the statute in question is the land which the statute attempts to deal with open to- acquirement of all persons; but it can only be acquired by certain persons named in the act, and the act makes the grant to them to the exclusion of all other persons. Because the act requires the persons to whom the grant is made to pay $2.50 for the issuance of the patent to them, this does not in any way help the act so far as its validity is concerned. The very idea underlying the provisions of the Constitution above quoted is that the whole public shall have the right to share in acquiring any public lands, and no particular person or corporation can be given this exclusive right, no matter what may be the amount required to be paid as a considration for the exclusive power to purchase.' The uneonstitutionality of, this act cannot be seriously questioned.

Reversed, and hill dismissed.