Larkin v. Hiittenmeyer , 195 Okla. 669 ( 1945 )

Four questions inhere in this case: (1) May the Legislature constitutionally enact a prospective curative act making the requirement that a resale notice shall be published four weeks before the resale directory, and making the publication for less than 28 days before the sale immaterial so that the owner cannot defeat the resale deed by reason of such irregularity? (2) Did the Legislature by the 1939 Resale Act (68 O. S. 1941 §§ 432-432p) intend such a result? (3) Is the decision in Welborn v. Whitney, 190 Okla. 630, 126 P.2d 263, controlling?, and (4) Do the facts bring the case under the letter and spirit of the curative provision of the 1939 Resale Act?

1. As was said by the United States Supreme Court in Straus v. Foxworth, 231 U.S. 162, 58 L.Ed. 168, 34 S.Ct. 42, which sustained a prospective curative act restricting an attack upon a tax title to the fact that the tax had been paid before the sale, or that the property was not subject to taxation, "we are not here concerned with retrospective legislation or with any prohibition of it; for, as before shown, the remedial or relieving provision was embodied in the act under which the sales were had."

It is well settled that the law that governs the right of the Legislature to enact curative legislation in general (6 R. C. L. 321; 11 Am. Jur. 1211; 12 C. J. 1091; 16 C.J.S. 875) applies to curative provisions in tax statutes, and the Legislature may provide that a tax sale shall not be invalidated by the courts by reason of the failure of the tax officers to comply with directions contained in the tax statutes which the Legislature might lawfully have dispensed with or made immaterial in the first instance. 51 Am. Jur. 935, 936; 26 R. C. L. 405; 61 C. J. 166, 739, 1238, 1364; Cooley, Taxation (4th Ed.) § 1590; Straus v. Foxworth, above.

Our Constitution being silent on the question of the time, place, and manner of taking the various steps leading up to the sale of land for delinquent taxes, the Legislature has almost plenary power over such matters, and its enactments cannot be rightfully questioned by the courts so long as they do not violate provisions of the Constitution, such as the due process clause, the uniformity clause, and the clause exempting property from taxation. 61 C. J. 81; 26 R. C. L. 27; 51 Am. Jur. 73. The Legislature could have provided that the statute fixing the time and place of holding the original sale and the resale shall be the only notice required (see authorities cited in my dissent in Welborn v. Whitney, above), or it could have required shorter notices than it did require. It would seem to logically follow that the Legislature can provide that no tax sale shall be invalidated by reason of the failure of the county treasurer to publish the notices the full length of time directed by the statutes. And this was the holding of the Nevada court in Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49. The majority opinion in Welborn v. Whitney, above, clearly implies that the Legislature may, by appropriate language in a prospective curative statute, validate a tax sale made on notice given less than the required time.

I conclude that the Legislature can guard against an irregularity as to the length of time a tax sale or resale notice is published, by making the statute prescribing the time directory rather than mandatory.

2. The question, then, is whether the Legislature intended to make the provisions as to length of time the tax sale and resale notices shall be published directory and to guard against errors in regard thereto, by the last paragraph of section 9 of the 1939 Resale Act, which provides:

"To defeat the deed it must be clearly plead and clearly proven that one or more of the essential prerequisites to thevesting of authority in said county treasurer to execute such deed was wholly omitted and not done; and a showing that one or more of said pre-requisites was irregularly done shall not be sufficient to defeat the deed." (Italics mine.)

It is proper to consider the conditions which brought about the enactment of the 1939 Resale Act. Roberts v. Newell,187 Okla. 139, 101 P.2d 824. For many years the statutes had made it the mandatory duty of the county treasurers to hold tax resales (State v. Boyett, 183 Okla. 49, 80 P.2d 201), yet in some counties no resale had been held since statehood. In others no resale had been held for many years. We had reached the point where many people looked upon the payment of taxes as purely a voluntary matter, with no risk incurred for failure to pay them, and many property owners had simply quit paying taxes. The result was that in many instances the taxes had piled up to the point where the tax liability was equal to the value of the property, and many school districts, cities, towns, and counties were having difficulty in financing essential functions of government, and were looking to the state for more aid with each passing year. And the state was becoming financially embarrassed, having built up a debt of some $25,000,000 by recurring annual deficits, a large part of which went to support the schools, which ordinarily should have been financed by ad valorem taxes. The Legislature decided to remedy this condition, and the 1939 Resale Act was enacted with that end in view.

Prior to the enactment of the 1939 Resale Act, this court had consistently held that 68 O.S. 1941 § 452[68-452], which is likewise both a presumptive evidence and curative statute, applied to resale tax deeds as well as to certificate tax deeds, and had consistently applied the presumptive evidence portion of it to resale deeds, but had as consistently ignored the curative portion of the section. At that time, a decision in Welborn v. Whitney had not been promulgated. In that case this court for the first time took notice of the existence of the curative provision.

That the Legislature clearly manifested an intention to require a more strict compliance with the tax sale and resale laws seems clear from a consideration of all the provisions of the 1939 Resale Act. Sections 1 and 2 make it the mandatory duty of each county treasurer to conduct a resale each year, despite the failure of the county excise board to appropriate a sufficient sum to pay the expense of the resale. Section 13 creates a fund out of which the expenses of the original sale and of the resale may be paid, so that the holding and financing of the sale and resale will not be dependent upon the action of the county officers in setting up a fund in each year's budget for that purpose. Section 15 imposes penalties upon county officers, and makes them removable, for their failure to perform their duties in connection with the holding of tax sales and resales. Section 16 makes it the duty of the Attorney General to file removal proceedings against officers failing to perform their duties under the tax sale and resale laws. Now, it would seem that the Legislature would not be so intent upon requiring resales to be held annually and at the same time not intend that the resale be effective to bring in needed revenue. It clearly did not intend resales to be looked upon with disfavor by the courts, to be invalidated for trivial errors of the taxing officials that do not in fact prejudice the rights of owners and do not go to the jurisdiction of the treasurer to execute resale tax deeds. Therefore, it was to be expected that it would include a provision making resales effective by protecting the purchaser. This it did by the last paragraph of section 9, above. That the Legislature had in mind the existing statute is clearly shown by the similarity of the language used in the old law and section 9. It was undoubtedly aware of the fact that this court had not given effect to the curative provisions of the old law. If it did not intend to strengthen the existing curative provisions and make them plainer than they had proved to be, why did it enact section 9? It should not be deemed to have intended a futile act. As was said by the New Mexico court in a recent case (Taylor v. Shaw, 48 N.M. 395,151 P.2d 743), referring to a similar curative provision, its purpose was "to render tax sales efficient to collect delinquent taxes and confer upon the purchaser a substance and not a shadow." The whole purpose of the tax sale and resale laws is to collect ad valorem taxes and to coerce the owners to pay such taxes under penalty of losing their property if they fail to do so. It is certainly not the policy of the 1939 Act to discourage the collection of taxes, which is the result of the majority opinion.

Presumptive fact number 7 of section 9 of the 1939 law is all-embracing. It was not in the old law. It clearly was intended to strengthen the presumptive evidence feature of the old law. King v. Slepka, 194 Okla. 11, 146 P.2d 1002. The last paragraph of section 9, above quoted, pertains entirely to the curative feature. Unlike the old law, it is not tied to the presumptive evidence feature by any language. It is complete in itself, and could as well have been a separate section. It is about as comprehensive as language could make it. In King v. Slepka, above, we said that section 9 "is an enlargement of the so-called presumptive evidence statute as considered in the former opinions." Section 9 does not define the expression "essential prerequisites" and "authority in said county treasurer," therein used, but leaves their meaning to the courts. The terms would seem to refer to jurisdictional requirements, the absence of which would violate constitutional guaranties.

What, then, are the jurisdictional prerequisites in the sale and conveyance of real property for delinquent taxes? I think they are six in number, and are as follows: (1) real property subject to taxation having its situs in the taxing district; (2) an assessment, which includes a valuation and description of the property; (3) a tax levy and an extension of the taxes against the real property on the tax rolls or other similar public records; (4) a delinquency existing at the time of the sale and execution of the tax deed; (5) a notice of sale; and (6) a sale that has for its purpose the vesting of title in the purchaser.

The statutes prescribing the time and manner of the publication of the notices and their contents are directed to the treasurer, and it is his duty to comply with such directions. The statutes prescribing the duties of the taxing officers in making the assessment, levy, and sale of property for taxes are directed to the taxing officers, and such directions should be complied with. On the contrary, section 9 of the 1939 Resale Act is directed solely to the courts, and it is their duty to give effect to both the presumptive evidence feature and the curative feature of said section. The taxing officers frequently fail to strictly comply with the statutes giving directions as to the time and manner of performing their duties, and the Legislature desired to guard against such errors of the taxing officers, hence the curative statute. It presupposes the existence of such errors, for if the taxing officers always performed their duties in strict compliance with the statutes, there would be no need for curative statutes.

Under the presumptive evidence feature of section 9 of the 1939 Resale Act, the holder of the resale tax deed, executed in substantial compliance with the statutory form, sustains his burden of proof when he introduces the deed in evidence. The burden of defeating the deed then rests upon the former owner. The curative feature of section 9 restricts the grounds on which he may attack the deed. He may not be heard to say that any prescribed act, not strictly jurisdictional, was irregularly done or even wholly omitted. He may not be heard to say that any jurisdictional prerequisite was merely irregularly done. He must show that some essential jurisdictional prerequisite did not exist or had been wholly omitted. Thus he may show that the real estate was exempt from taxation, or that it did not have a taxable situs in the taxing district exacting the tax. He may show that the taxes have been paid or the property redeemed prior to the execution of the deed and at a time authorized by law. These two prerequisites refer to a status rather than acts. The other four refer to acts to be performed by the taxing officers. The statute makes no distinction between them. They are all of equal importance and dignity. A mere irregularity in either of the four will not sustain an attack on the deed. It is only an entire failure to perform one of them that will sustain an attack.

I conclude that, when the ordinary meaning is given to the words used in the curative provision of the 1939 Resale Act, the Legislature intended to cure an error as to the length of time the notices shall run as well as to the contents of the notice. It intended to render directory all provisions as to the manner of performing the various duties enjoined upon the taxing officers in making assessments, tax levies, and sales of property for taxes.

3. The next question is whether the decision in Welborn v. Whitney is controlling in this case. That decision was based upon the prior curative statutes, which, as I have pointed out above, were materially different from, and not so comprehensive as, the 1939 law. It is largely based upon the rule of stare decisis, and partly upon the language of the curative provisions of the prior law. It lays great emphasis upon the word "duly" in connection with the notice of sale. That word is not found or referred to in the curative provision of the 1939 law. In view of what I have said above, and the language of the last paragraph of section 9 of the 1939 law, the opinion in Welborn v. Whitney cannot be said to be a precedent in the present case. Furthermore, a majority of the Justices participating in Welborn v. Whitney were of the opinion that the result reached was contrary to the intention of the Legislature. Two of the Justices who concurred did so solely by reason of the rule of stare decisis. Thus only four of the nine Justices fully concurred in the reasoning of the majority opinion in that case. Since a new and different law is now under consideration, that decision should not stand in the way of a correct decision in the present case.

4. The question, then, is this: Was the giving of the required notices "wholly omitted and not done"?

Let us first consider the notice of the original sale held in November, 1935. The record discloses that that notice was regular in every respect except that only 18 days intervened between the first publication and the commencement of the sale. It was published in three weekly issues of a lawful newspaper. The giving of that notice was not "wholly omitted." It was irregularly given according to the decisions of this court that three weeks' notice means as much as a 21 days' notice. That the curative provision of the 1939 law, above, was intended to render immaterial all such irregularities in the prior proceedings leading up to the 1939 re-sale and subsequent resales seems plain from a reading of it. The notice of the original sale is merely a step in the process of collection and deprives the landowner of no substantial right.

We next consider the resale notice. The record is that it was regular in every respect except that only 25 days intervened between the first publication and the commencement of the resale. The notice was published in four weekly issues of a lawful newspaper. Under our prior decisions it should have run for four full weeks or 28 days prior to the resale. Does the curative provision of the 1939 law, above, render such irregularity immaterial and cure the same? Clearly so. The giving of that notice was not "wholly omitted." It was irregularly done, but the mere irregularity does not defeat the sale if we are to give effect to the intention of the Legislature as shown by the plain language used.

To hold that the defects in the two notices constitute an entire failure to perform a jurisdictional prerequisite rather than a mere irregularity in such performance is plainly contrary to the language used by the Legislature and is to refuse to carry out a valid statute, which withdraws from the courts jurisdiction to invalidate resale tax deeds for mere irregularities in the performance of jurisdictional prerequisites, and which restricts the courts to entire failure to perform jurisdictional prerequisites as ground for invalidating resale tax deeds that substantially comply with the form statute. No distinction should be made between an irregularity in the length of time a notice shall run and an irregularity in the contents of the notice. The Legislature has plenary power over both, so long as due process obtains. Nor may this court logically hold that a mere irregularity in the notice will invalidate a resale tax deed without also holding that a mere irregularity in the assessment, levy or sale will also defeat the deed. The result would be and is to nullify the statute and defeat the will of the Legislature.

In our recent decision in Bramble v. Caywood, 193 Okla. 668,146 P.2d 587, we held that, by reason of the curative provision of the 1939 law, an error in the resale notice as to the amount of taxes due is immaterial and constitutes only an irregularity, and called attention to the fact that an opinion in Welborn v. Whitney was based upon the prior statute. Bramble v. Caywood has been followed in our recent decisions of Hight v. Collingsworth, 194 Okla. 507, 153 P.2d 96, Grisso v. Ellis,194 Okla. 506, 153 P.2d 104, and Patterson v. Hughes,194 Okla. 502, 153 P.2d 111. And in King v. Slepka, above, we held that the curative provision of the 1939 Resale Act rendered immaterial an error in a resale notice as to the name of the owner. And in G. A. Nichols, Inc., v. Simpson, 194 Okla. 81,147 P.2d 437, we held that it renders immaterial an irregularity as to description in the delinquent tax sale notice. If there is a distinction, in principle, between an error as to the contents of the notice and as to the length of time the notice should run, it would seem that the majority opinion should point it out. And if it is possible for the Legislature to make a curative statute that will render immaterial an error as to the length of time the notice shall run, it would seem that the provision under consideration would have that effect. In any event, the majority opinion should point out wherein the provision does not contain language that cures such an irregularity.

The curative provision of the 1939 law, as well as the curative provisions of the old law, which are still in force (68 O. S. 1941 §§ 452, 453), clearly abrogate the rule of strictissimi juris in proceedings for the sale of real property for delinquent taxes. See King v. Slepka, above. That rule has never obtained in Oklahoma, despite the fact that this court has in several cases said that it does apply, the last case being Young v. Boswell, 191 Okla. 680, 134 P.2d 592.

Much that was said in my dissent in Welborn v. Whitney, above, is pertinent here, but need not be repeated.

For the foregoing reasons, I respectfully dissent.