Casner v. Meriwether , 152 Okla. 246 ( 1931 )

The fact that the opinion herein holds an act of the Legislature unconstitutional, and the confidence with which petitioner herein, and a number of attorneys who file a brief amici curiae, assert that the opinion is in error, have impelled us to give careful consideration to the petition for rehearing filed herein.

We are not to be unmindful of the many decisions of this court which hold that an act of the Legislature will not be declared unconstitutional unless it clearly appears that such act violates some provision of the Constitution. This rule is a salutary one. The will of the legislative branch of the state government, when expressed in a statutory enactment, should not be lightly treated and should not be stricken down except in cases where it is plainly violative of some constitutional provision.

It is first asserted that the opinion herein itself violates an express provision of the Constitution in that it holds chapter 12, S. L. 1925, unconstitutional, in toto, and strikes down the act in its entirety, when section 57, art. 5, of the Constitution, limiting all acts of the Legislature to one subject which shall be clearly expressed in the title, further provides that if any subject be embraced in an act contrary thereto, such act shall be void only as to so much of the law as may not be expressed in the title thereof.

It is confidently asserted that the only question raised in the appeal going to the constitutionality of said act is that part thereof which provides for or extends a lien for taxes so as to cover and provide for a lien for attorney's fees in foreclosing such tax lien. And it is asserted that if it be found that such provision is void on account of not having been expressed in the title of the act, that part alone should be stricken down and the balance of the act should be permitted to stand. For it is asserted that if this be a grant of a new right, it is the only substantive right granted by the act which is not embraced in the title. The opinion clearly points out the fallacy of this argument. As a rule acts of the Legislature are presumed to be effective only in futuro, and retroactive acts, where permissible, are the exception. If the words, "heretofore or hereafter issued," had not been inserted in the act, only liens represented by tax sale certificate or tax deeds thereafter issued would have been affected, leaving holders of such liens theretofore issued to the remedies provided by law at the time of their issuance. The retroactive provisions of the act were nowhere referred to or expressed in the title thereto. This question was necessarily in the case, since it appears that it was specifically raised by the demurrer and answer. Counsel are, therefore, mistaken when they say that the only question that can properly be decided is that of the constitutionality of the act in so far as it extends the tax lien to cover attorney's fees. There is a vast difference between subjecting a taxpayer's property to the comparatively small cost of advertising and selling and issuance of a tax deed, and subjecting the same property for failure to pay the same taxes to the burdens and costs of a proceeding in court to foreclose a tax lien and taxing attorney's fees and including the same in the lien. It is this extra burden placed upon the property of the taxpayers here involved, and retroactively, that makes the act ex post facto, and, therefore, void, and brings it within the rule announced in Anderson v. Ritterbusch,22 Okla. 761, 98 P. 1003, cited in the opinion.

Petitioner further asserts that the opinion decides other questions which are not in the case, among which it is said the opinion holds that the act in question is not merely a procedural act, but grants other substantive rights, and points out certain instances, and that to this extent the court has not only gone beyond its power, but has overruled certain cases decided by this court without any consideration whatever.

They first point out the statement in the opinion relative to the lien given therein for the value of improvements placed on lands by such lienholders. It is asserted that no such claim was involved in the case, and, therefore, discussion of this provision has no place in the opinion. It must be borne in mind that counsel for petitioner in their original brief asserted that the statute was remedial only and granted no new rights. The new rights are mentioned in the opinion in answer to counsel's assertion. They are also mentioned as reasons for holding the act unconstitutional because of the retroactive features of the act in granting these new rights. Some mention is made that the holder of a tax deed already had such a lien. But he admits that the mere holder of a tax sale certificate had no such lien. It is only the latter that the opinion holds is given a new right under the act. But counsel suggest that no such claim was made in the instant case, and, therefore, this question had no place in the opinion. To consider these questions only as they arise in some case would make it necessary to declare the act unconstitutional by piecemeal. But the fact remains that the act purports to give a lien for improvements to a holder of the tax sale certificate where no such lien theretofore existed, and this on tax sale certificates theretofore as well as thereafter issued. This is another ex post facto provision of the act which renders it void. Counsel first sought to uphold the act upon the theory that it granted no new substantive right, but when such right is pointed out, then they say it is improper to mention it in the case because it was not specifically raised.

It is asserted that the opinion overrules Prince v. Ypsilanti Savings Bank, 140 Okla. 131, 282 P. 282, and other similar cases. In this they are mistaken, for the opinion reasserts the rule there announced that special improvement tax liens were liens coequal with the lien for other taxes. The act in question purports to make such liens inferior to that of the holder of a tax sale certificate or tax deed based on ad valorem taxes. This is another new right attempted to be granted retroactively. It may be possible that the Legislature has the power to make an ad valorem tax lien superior to the lien created by special assessments for improvement, but certainly it has not the power to do so retroactively.

Other instances of substantive rights granted by the act retroactively as well as prospectively pointed out by Mr. Justice. Andrews in the opinion are criticized as not being in the case. It is sufficient to say that they are in the case because counsel in the first instance in their eagerness to have the act upheld asserted that no such rights were granted. One of these is the taking away the right of persons under disability to redeem their lands upon the removal of such disability and leaving them to look only to the surplus proceeds of the sale of the land. Clearly the act made no exception in such cases and applied alike to tax sale certificates issued prior to and after the passage of the act. It may be that the rights of such persons are protected by the provisions of other acts, but we are discussing the rights attempted to be conferred by the act in question.

Another is the issuance of a writ of assistance provided for in the act in connection with the foreclosure proceedings. This is one provision of the act which, of itself, might be conceded to be procedural or remedial only. But the new right referred to in the opinion is the right to acquire possession in this manner in an action based upon a void tax deed. However, the only mention of void tax deeds, etc., is in the title of the act. But section 1 of the act has been construed by this court as broad enough to include the class of cases named in the title, among which is void tax deeds. Langley v. Cox, 135 Okla. 291, 275 P. 638. The result would be, if the act was held constitutional, to give force and validity to void tax deeds issued prior to the passage of the act. It can hardly be said that this provision is purely procedural or remedial. Certainly it creates a right that did not exist before. It must be borne in mind that the retroactive, or ex post facto, features of the act make it repugnant to section 15, art. 2, of the Constitution, and that this section does not contain the proviso found in section 57, art. 5. The proviso contained in section 57, art. 5, of the Constitution is that only such parts of an act as are not expressed in the title are to be stricken down and the balance of the act to remain. But there is no such provision in the section prohibiting the passage of ex post facto laws.

In the brief filed amici curiae it is asserted that the opinion is, in conflict with Langley v. Hamilton, 127 Okla. 35,259 P. 575, wherein it was stated that certain allegations of a petition in an action to foreclose tax liens under this act were good as against a general demurrer. But this is not true, for the question there under consideration was apart from the constitutionality of the act. The question there was whether the general allegations that defendants named in the caption of the petition had or claimed some right, title, or interest in the real estate involved in the action where, as here, several tracts of land owned by different parties were involved, was good as against the motion to make more definite and certain. All that was there said was that as to the defendants filing the motion the allegations in this respect were sufficient as against a general demurrer; that is, that the allegations as to their interest in the land were good as against a general demurrer, but were not good as against the motion to make more definite and certain. The constitutionality of the act was not involved.

It is next asserted that the opinion is in conflict with Jones v. Pugh, 130 Okla. 291, 267 P. 272. But this assertion is not well taken, for all that was there held was:

"Where the district court has jurisdiction of the parties and of the subject-matter of a pending cause, this court will not, by a writ of prohibition, deprive it of the right to pass upon the validity of an act of the Legislature involved therein, where the unsuccessful party would have an adequate and complete remedy by appeal."

While the writ of prohibition was there sought upon the ground that the act was unconstitutional, this court specifically declined to deprive the trial court of the right to pass upon that question in connection with the other issues. In that case it was specifically stated that this court had never at that time determined the validity of the act. Thus showing that the position of the attorneys amici curiae that it had so done in Langley v. Hamilton, supra, is not well taken.

It is next contended that the opinion is in conflict with Langley v. Cox, supra. An examination of that case will disclose that all that was held therein is that while the act itself includes all tax sale certificates and tax deeds, whether valid, void, voidable, or defective, and the title includes only void voidable, and defective tax sale certificates, deeds, or proceedings relating thereto, the act was broad enough to cover the classes, or at least one of the classes, named in the title of the act; that is, that the words "tax sale certificate or tax deed," used in section 1 of the act, would include defective certificates, deeds, or proceedings relative to tax sales, which were mentioned in the title. The ex post facto features of the act were not even discussed.

It is stated that the opinion is in conflict with Cooley v. Smith, 139 Okla. 101, 281 P. 255. The constitutionality of the act was not in question in that case. The act itself was not mentioned. It is further argued that in Prince v. Ypsilanti Savings Bk., supra, wherein it was said: "By section 9724, C. O. S. 1921, taxes upon real estate are made a perpetual lien, but no one contends that this lien may not be extinguished by forclosure by tax sale and resale as provided by law" — this court recognized the validity of the act, and for that reason the opinion herein is in conflict therewith. The language used is not subject to such construction, for the sense in which the word "foreclosure" was there used was that sales of property for taxes in the manner provided by law is a species of foreclosure. All the authorities recognize this to be true. There is nothing therein to justify the inference that the opinion holds that lien for taxes such as was there being considered could be foreclosed in a separate proceeding in equity. For the opinion specifically recognizes the well-established rule in this state that a lien for special improvements cannot be foreclosed in a court of equity.

Another case with which it is contended the opinion in the instant case is in conflict is Popp v. Munger, 131 Okla. 282,268 P. 1100. The act here under consideration was not even remotely involved in that case.

Finally it is urged that the opinion may disturb titles acquired tinder the act, and that there are many such. In this petitioners overlook, or rather argue around, the well-established and generally recognized rule that final judgments based upon an act of the Legislature afterwards declared unconstitutional are not affected by the act of the court, and will remain valid and binding judgments unless void or voidable for some other reason. There could be no title acquired under the act on tax sale certificates or tax deeds issued after the passage of the act, for the reason that the act itself provided that no suit could be commenced sooner than two years after the tax sale and the act was repealed in 1927, within two years from the date any tax sale could have been held after its passage. Such judgments as may have been obtained on previously acquired tax liens and not appealed from, and not otherwise void or voidable, are within the rule above mentioned and are not to be affected by the opinion.

From a careful consideration of the petition and all the authorities cited and argument made in support thereof, the petition for rehearing should be, and the same is hereby, denied.

LESTER, C. J., CLARK, V. C. J., and CULLISON, SWINDALL, ANDREWS, and McNEILL, JJ., concur. KORNEGAY, J., dissents. HEFNER, J., absent.