Hart v. Backstrom

^* Corpus Juris-Cyc. References: Constitutional Law, 12CJ, p. 710, n. 60, 62; p. 711, n. 63, 67; States, 36Cyc, p. 885, n. 47; Statutes, 36Cyc, p. 994, n. 96; p. 1060, n. 76; p. 1063, n. 79; p. 1064, n. 85; p. 1102, n. 78; Taxation, 37Cyc, p. 1488, n. 61; As to constitutionality of prohibition of amendment or repeal of statute by reference to title only, see annotation in 6 A.L.R. 216; 18 A.L.R. 68; 25 R.C.L., pp. 872, 873; 4 R.C.L. Supp. 1605; 6 R.C.L. Supp. 1488. Appellee filed his bill in the chancery court of George county against appellant and all others having or claiming any interest in lots three and four of block one of St. George terrace, in the town of Lucedale, in the said county, to confirm his title thereto. There was a decree pro confesso against all other defendants, except appellant, Hart. Afterwards there was a hearing on original bill, and answer of appellant, Hart, and proofs, resulting in a decree in appellee's favor, confirming the latter's title to the lots involved. From that decree appellant prosecutes this appeal.

It was alleged in the bill, in substance, that the lots involved were sold on the 1st day of May, 1921, for the taxes due thereon for the previous year; that appellee was the true and legal owner of the lots involved. In his bill appellee deraigned title from the United States government down. The bill alleged that the taxes for 1921 were due and unpaid on the lots at the time of their sale on the 1st day of May, 1922; that the lots were struck off to the state at the sale, and were not redeemed within the time provided by law; that all the proceedings by which the lots were assessed and sold for taxes were legal and regular in all respects; that on November 10, 1924, more than two years after the tax sale, appellee purchased the lots from the state, and received a patent thereto from the state; that, while the lots were situated within the corporate limits of the town of Lucedale, it was not in fact urban property; that appellee paid for the lots the sum of fifteen dollars, which was in excess of one dollar and twenty-five cents per acre; that, doubt having arisen as to the power of the state to sell and convey the lots under the then existing law, on the 18th day of June, 1926, under the authority of chapter 185, Laws of 1926, appellee repurchased the lots from the state.

Appellant appeared and contested the confirmation of appellee's tax title. He admitted in his answer that all the proceedings by which the lots had been assessed and the taxes made a charge against the lots were legal; that the state and county taxes for the year 1921 were both unpaid, and remained due and unpaid prior to the first Monday of May, 1922, when the lots were sold for their 1921 state and county taxes. Appellant, denied, however, that the tax sale made on the first Monday of May, 1922, was legal. He challenged the legality of the sale on several grounds, which will be considered and passed upon by the court.

The cause was tried on agreed facts embodied in writing and made a part of the record, which agreement follows, emitting the formal parts:

"In the above-styled cause it is agreed between the parties that the land herein involved was assessed to F.M. Young for the state and county taxes due thereon for the fiscal year 1921, who thereafter conveyed said land; that said taxes for said fiscal year were not paid and said land was advertised by the tax collector of George county, Miss., for sale, to enforce the payment of said taxes, the sale being advertised to take place on the first Monday of April, 1922, within legal hours, at the front door of the courthouse of George county, Miss., for cash, to the highest bidder therefor; that, in accordance with chapter 137 of the Laws of 1922, said sale was not made on the first Monday of April, 1922, but was made on the first Monday of May, 1922, being the first day of the said month, in accordance with the provisions of chapter 137 of the Laws of 1922; that said taxes were neither paid nor tendered, although due, on or before the day of sale; that at said tax sale, so held on the first Monday of May, 1922, being the first day of said month, within legal hours at the front door of the courthouse of George county, Miss., to the highest bidder for cash, there was no individual bidder for said land, and said land was struck off and sold to the state of Mississippi; that said land was not redeemed from said tax sale, nor was a tender made of the amount necessary to redeem the same; that a list, as required by chapter 137 of the Laws of 1922, was made, certified, and filed in the office of clerk of the chancery court of George county, Miss., on the 20th day of May, 1922, which list included the land herein involved; that, after the time for redemption had expired and said land had not been redeemed, the clerk of the chancery court of George county, Miss., certified to the land commissioner of the state of Mississippi, a list of all lands sold to the state of Mississippi at the tax sale so held on the first Monday of May, 1922, which remained unredeemed at the expiration of the time allowed for redemption, which list included the land herein involved; that said land was thereafter sold to the complainant herein, Oscar Backstrom, under and by virtue of the two patents set forth in the bill of complaint; that said land is situated within the municipality of the town of Lucedale, George county, Miss., and is situated in the residential section of said town, the nearest business house or place being the courthouse of said court, which is one block south of the land herein involved, and the nearest approach of said lots to said courthouse and lot being approximately two hundred thirty-five feet; that said land contains less than one acre.

"It is further agreed that the board of supervisors of said county of George did not make and enter an order designating the first Monday, the 1st day of May, 1922, as the time for making sale of lands delinquent for taxes for the fiscal year 1921, including this land; that said sale as advertised to be made on the first Monday of April, 1922, was not continued from day to day to the first Monday, the 1st day of May, 1922, the said sale taking place without further advertising or notice of sale."

Appellant contends that the tax sale was void because the list of lands struck off to the state, including the lots involved in this case, was not filed with the land commissioner as required by section 2933, Code of 1906 (section 5268, Hemingway's Code); that chapter 231 of the Laws of 1920, undertaking to dispense with the requirement of that section of the Code to make the report to the land commissioner, is unconstitutional and void, because violative of section 61 of the Constitution. That section of the Constitution provides, that — "No law shall be revived or amended by reference to its title only, but the section or sections, as amended or revived, shall be inserted at length."

Chapter 231 of the Laws of 1920, which appellant contends violates that section of the Constitution, is in the following language:

"That no reports of tax sales of lands either purchased by the state or by individuals shall be made to the land commissioner until after the period of two years from the date of tax sale, or the time allowed for redemption shall have expired. All redemptions shall be attended to by the clerks of the chancery courts of the respective counties, and the sums received therefor shall be paid into the county treasury, and disposed of as nowprovided by law. That after a period of two years from the date of such sales of lands for delinquent taxes shall have been made, then it shall be the duty of the chancery clerk to report all sales made to the state of lands which have not been redeemed, to the state land commissioner, to be dealt with asnow provided by law."

Appellant's position is that this statute had the effect of amending section 2933, Code of 1906 (section 5268, Hemingway's Code), and that, in so doing, section 61 of the Constitution was violated, because the former act, as amended, was not brought forward and inserted in full. Putting it differently: Appellant contends that, because it is necessary to put both acts together in order to find what the law on the particular subject is, section 61 of the Constitution was violated. Section 2933, Code of 1906 (section 5268, Hemingway's Code), reads as follows:

"If, upon offering the land of any delinquent taxpayer, constituting one tract, no person will bid for it the whole amount of the taxes and all costs, the collector shall strike off the same to the state, and he shall, on or before the first Monday of May thereafter, transmit to the land commissioner a certified list of the lands struck off by him to the state, specifying the day of sale and the amount of taxes for which the sale was made, and each item of cost incident thereto, and the land commissioner shall correct the list, if necessary, by the records of his office and of the United States Land Office, and strike from it land improperly on it, and return it to the collector for correction, if necessary, and the collector shall correct it as instructed by the land commissioner and return it to him as corrected.

"And when the list is corrected it shall be recorded in the land commissioner's office and shall then be certified by the land commissioner and be transmitted to the clerk of the chancery court of the county, and be by him recorded in a book kept for that purpose."

It will be noted that chapter 231 of the Laws of 1920 does not in express terms undertake to amend section 2933, Code of 1906 (section 5268, Hemingway's Code). Therefore, if it had the effect of amending the latter statute, it was an amendment by implication, and not an express amendment. Section 61 of the Constitution has no reference to amendments by implication when the amending statute is complete within itself, as we think chapter 231 of the Laws of 1920 is.

In construing constitutional provisions, the courts should look to the history of the times and examine the state of things in existence when the constitutional provision in question was adopted, in order to ascertain the mischief sought to be remedied. In other words, the courts should look to the historical facts surrounding the adoption of the constitutional provision in question. Prior well-known practices and usages should be considered. Bradford Construction Co. v. Heflin,88 Miss. 314, 42 So. 174, 12 L.R.A. (N.S.) 1040, 8 Ann. Cas. 1077;Rhode Island v. Massachusetts, 12 Pet. 657, 9 L.Ed. 1233;Slaughterhouse Cases, 16 Wall. 36, 21 L.Ed. 394; Maxwell v.Dow, 176 U.S. 581, 20 S.Ct. 448, 494, 44 L.Ed. 597; Mattox v.U.S., 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409; Fox v.McDonald, 101 Ala. 51, 13 So. 416, 21 L.R.A. 529, 46 Am. St. Rep. 98.

Cooley's Constitutional Limitations (7 Ed.), chapter 6, pp. 214 to 216, inclusive, gives the historical background of constitutional provisions of other states substantially the same as section 61 of our Constitution. The author discusses the evils existing in the process of legislation which were sought to be cured by such a constitutional provision, saying:

"The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the charges made in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for the express purpose. Endless confusion was thus introduced into the law, and the Constitution wisely prohibited such legislation."

And concludes the discussion with this language:

"It should be observed that statutes which amend other statutes by implication are not within this provision; and it is not essential that they even refer to acts or sections which by implication they amend."

The author cites numerous authorities to sustain the proposition that such constitutional provision has no application to amendments by implication. In the Eighth Edition of Cooley's Constitutional Limitations there are some authorities to the contrary. We think, however, this court, in Heidelberg et al. v. Batson et al., 119 Miss. 510, 81 So. 225, in unmistakable terms aligned itself with the courts which hold that such a constitutional provision has no application to amendments by implication. And, furthermore, this court has held, in several cases which are cited and relied on in the dissenting opinion in the present case, that section 61 of the Constitution has no application to a statute which, although amendatory of a former statute, is complete within itself. We think chapter 231 of the Laws of 1920, although amendatory of section 2933, Code of 1906 (section 5268, Hemingway's Code), is a complete scheme within itself, so far as the subject of legislation therein treated is concerned. It provides, in substance, that no reports of tax sales of land purchased by the state or individuals shall be made to the land commissioner until after the expiration of two years from the date of sale, or time allowed for redemption shall have expired; that all redemptions shall be attended to by the clerks of the chancery courts of the respective counties, and the sums received therefor paid into the county treasury, and disposed ofas now provided by law; that, after a period of two years' time from the date of such sales, it shall be the duty of the chancery clerk to report all sales made of state lands which have not been redeemed, to the state land commissioner, tobe dealt with as now provided by law.

If there is anything in the amending statute upon which to base the claim that it (the amending statute) is not complete within itself, it is the two phrases, namely, "and disposed of as now provided by law," and "to be dealt with as now provided by law;" and the claim that, if the statute stands, there is no law requiring the tax collector to file with the chancery clerk the lists of lands sold for taxes.

The first quoted phrase of the statute has reference to the disposition of the redemption moneys paid into the hands of the chancery clerk; and the second quoted phrase has reference to the duty of the land commissioner regarding lands sold the state reported to him by the chancery clerks. We are of opinion that it was wholly unnecessary to put either of these phrases in the statute; that they add nothing to the statute, and without them the statute would have meant exactly the same thing it means with those phrases embodied therein. If those two phrases had been left out of the statute, the statute would have read as follows:

"That no reports of tax sales of lands either purchased by the state or by individuals shall be made to the land commissioner until after the period of two years from the date of tax sale, or the time allowed for redemption shall have expired. All redemptions shall be attended to by the clerks of the chancery courts of the respective counties, and the sums received therefor shall be paid into the county treasury. That after a period of two years from the date of such sales of lands for delinquent taxes shall have been made, then it shall be the duty of the chancery clerk to report all sales made to the state of lands which have not been redeemed, to the state land commissioner."

If the statute had been so adopted, and the question had arisen as to the disposition the chancery clerks were required to make of redemption moneys received by them, resort would have been had to the other statutes on the subject then in force. And the same is true with reference to the last-quoted phrase. If the question had arisen as to how the land commissioner should deal with the sales of land to the state unredeemed, reported to him by the chancery clerks, the other statutes on that subject would have been resorted to. This would have been done under the well-known rule of statutory construction, that statutes treating the same subject-matter of legislation are to be construed together, and that a later statute will not be construed to repeal a former unless the former is either expressly repealed or is in necessary conflict with the later statute.

Is it true that, by inserting wholly unnecessary language in statute, language that adds nothing to its force and meaning, a statute entirely complete within itself without such language may bring the statute under the condemnation of section 61 of the Constitution? We think not. We think the changes made in the law by chapter 231 of the Laws of 1920 are complete as embodied in the act, and that no resort is necessary to any other statute in order to ascertain exactly what those changes were.

What we have said we think applies with equal force to the claim that chapter 231 of the Laws of 1920 is not complete within itself, on the alleged ground that it left no other statute in force requiring the tax collectors to file with the chancery clerks lists of lands sold the state for their taxes in order that redemptions might take place before the chancery clerks. There may not be express authority in any statute requiring such lists to be filed with the chancery clerks, but there is, at least, clear implied authority in the statutes; in fact, there are several statutes, which we will now notice, which in a large measure would be meaningless if the tax collectors were not required to file their lists of lands sold to the state for taxes, with the chancery clerks. Chapter 34 of the Laws Special Session 1898 (section 6967, Hemingway's Code), provides in its first paragraph, as follows:

"The collector shall also make a list of lands sold to individuals, in the same manner as required of lands sold to thestate, which he shall file with the clerk of the chancery court,who shall record the same in a book to be kept for that purpose;and the clerk of the chancery court shall, within ninety days andnot less than sixty days prior to the expiration of the time ofredemption, if the owner of the land sold, either to individualsor to the, state, be a resident of this state and the addressknown to said clerk, be required to issue notice to such owner,in effect following," etc. (Italics ours.)

Section 2935, Code of 1906 (section 5270, Hemingway's Code), provides for the sale of lands delinquent for their taxes, which for any reason are not sold by the tax collector at the regular time. The latter half of the section provides that the lists of lands so sold, whether the sales be to the state or individuals, shall be immediately filed by the tax collector in the office of the clerk of the chancery court, who shall at once record the list and send to the land commissioner a certified copy thereof. Section 2937, Code of 1906 (section 5272, Hemingway's Code), provides, in substance, that the tax collector shall keep a record of tax lands for his convenience in collecting taxes and making settlements; that the land commissioner, when he releases lands upon redemption, shall immediately notify the auditor,chancery clerk, and the collector; and that the chancery clerk,upon receipt of such notice, shall at once make entry thereofupon his record. What record? The only record the statute could refer to would be the lists of lands sold to the state and to individuals, filed with the chancery clerk by the tax collector.Buford v. State (No. 25764), decided by this court March 28, 1927, 111 So. 850, is not in the way of this view. The statute involved in that case provided that in certain criminal cases an additional penalty should be imposed. In discussing the question, the court said:

"The statute on which this prosecution is predicated is chapter 214, Laws of 1912 (Hemingway's Code, section 2086), which provides for punishment ``by a fine of not less than fifty dollars nor more than five hundred dollars, or to be imprisoned in the county jail not less than one week nor more than three months, or both, for the first conviction for an offense committed after the passage of this act.' Section 2, chapter 210, of the Laws of 1922, was manifestly intended to withdraw from the trial judge the discretion to impose a fine, or imprisonment, or both, and to make it mandatory on him to impose a term of imprisonment in each case of not less than ninety days. It refers to prior statutes for the fine to be imposed and thereby does exactly that which section 61 of the Constitution was, among other things, meant to prevent. It is therefore void."

That is not true of the statute here in question, for the changes it makes are complete within themselves. It is not necessary to go to any other statute to piece them out.

Chapter 137 of the Laws of 1922, is attacked on the ground that it violates section 87 of the Constitution, which provides, among other things, that the operation of a general law shall not be suspended by the legislature for the benefit of any individual or private corporation or association. The title of chapter 137 of the Laws of 1922, which follows, clearly indicates its scope and purpose:

"An act to prevent the tax collectors of the various counties or municipalities of the state from selling lands on the first Monday of April, 1922, for the taxes, delinquent thereon for the fiscal year of 1921, damages or costs, under section 4326, Mississippi Code of 1906, and continuing such sales advertised for said date without further advertisement or notice until the first Monday of May, 1922; extending the time for filing the conveyance to individuals and lists of lands struck off to the state in the proper office; preventing the collection of damages on taxes delinquent for said fiscal year of 1921, until on and after May first, 1922."

This was a moratorium statute; its object was to tide over a period of financial distress. We do not think the statute violated section 87 of the Constitution. It did not have the effect of suspending a general law for the benefit of any individual or private corporation or association. The moratorium statute is as general in its terms as the statute which it suspended. The latter provided for the sale of all lands delinquent for their taxes by whomsoever owned. The moratorium statute is just as general, because it provides for the suspension of the sale of all lands delinquent for taxes by whomsoever owned.

The lands involved were urban property, situated in the municipality of Lucedale, and therefore the conveyance by the land commissioner to appellee was void under the authority ofHuber v. Freret, 138 Miss. 238, 103 So. 3. After the decision of the court in the Huber case, the legislature adopted chapter 185 of the Laws of 1926, amending section 2919, Code of 1906 (section 5254, Hemingway's Code), so as to authorize the land commissioner, under certain conditions, to resell lands owned by the state situated in municipalities, which the state had formerly undertaken to sell and convey through the land commissioner, which conveyances were void under the holding in the Huber case. Appellee took advantage of this statute and repurchased the lands involved from the state.

Appellant contends that section 2 of the act is violative of section 87, paragraph (u) of section 90, and section 95 of the Constitution. It is contended that the section of the statute in question suspends the operation of section 1 of the statute, which provides for the sale of such lands generally, to any and all persons, in that it is an unconstitutional effort to give preference to those who had purchased from the land commissioner, but who, by reason of want of authority in that officer, are without title.

We think chapter 185 is to be construed as a whole, and that section 2 is a limitation upon the right of sale referred to in section 1 thereof. In other words, before the state can sell to other purchasers than those who have in good faith attempted to buy, and who have secured a purported conveyance from the land commissioner, notice must be served upon such persons as have known post office addresses. Whenever the post office address of such person is not known, notice shall be published in a newspaper published at Jackson, for a period of three weeks, giving a description of the land, and of the right of such buyer, or his vendee. It will be noted from a careful reading of the section that the applicant, notwithstanding his prior attempt to purchase, must have the land appraised by the land commissioner, the Governor, and the attorney-general, and must pay a reasonable price for the land as fixed by them. The act provides that, when such reasonable price has been determined, then the purchaser shall be credited with the price paid the land commissioner under his attempted purchase, with six per cent interest thereon, compounded annually, not to exceed the present value as fixed by the appraisers. In other words, if the price paid in an attempt in good faith to purchase prior to the act is less than the reasonable price fixed by the land commissioner, Governor, and attorney-general, the amount so paid is credited on such fixed price; but, if the price formerly paid equals or exceeds such reasonable valuation, it is credited only up to the valuation. A conveyance of land under the act is to perfect an attempt to purchase where the amount of money theretofore paid for the land equals or exceeds the value of the land at the time of purchase, and where the deed of conveyance is invalid. If the act had not been passed, purchasers would have been entitled to a refund of the purchase money, with interest thereon. But, instead of the state refunding this purchase money and reselling the land, the legislature deemed it fair to give the purchaser in good faith an opportunity to perfect his title, and save the state the trouble of going through the process of refunding it.

We do not think chapter 185 violates the provisions of either of the sections of the Constitution invoked, and we do not think it comes within the condemnation of Winton v. Day, 96 Miss. 1, 49 So. 264. It is an effort on the part of the state to do justice to those who, in good faith, had attempted to purchase state lands, and who (both they and the land commissioner) thought they were getting valid titles at the time of purchase, by giving such persons an opportunity, not to take the lands at the price contracted for, but at their appraised value at the time of their application after the passage of the act. It is not a suspension of the provisions of section 1 in favor of a particular person or class of persons, but is excepting from the power of sale such lands as have in good faith been attempted to be conveyed, the title to which failed because of the want of power in the officer to sell, until former purchasers have had opportunity to perfect their invalid titles. Of course, many of those attempting to purchase believed they were getting valid titles to the lands so purchased, and improved and otherwise dealt with the lands as though they had valid titles thereto; and to refuse to provide any method for their relief would result in hardships in numerous cases. Ordinarily, the legislature can ratify and confirm what has been done by the agents of the state. It is only where expressly prohibited by the Constitution that it may not do so.

We think the provisions of section 2 of the act are a legal and just effort on the part of the legislature to do justice to those who, in good faith, for a reasonable consideration, have attempted to purchase state lands, but have failed to get title thereto. The sale to such a purchaser is, in no sense, a donation of land to him, because a reasonable price, fixed by officers of the state selected for that purpose, is paid for the land. If, after notice, such purchaser does not choose to pay the reasonable price so fixed, then the land is available to any person desiring to purchase same and willing to pay the fixed price therefor.

Section 90, par. (u), was not violated, because it does not prohibit the sale of lands in the way provided by section 2 of the act, but undertakes to prevent the state from granting by special law to particular persons or corporations lands of the state. Where the state has in good faith sold lands for a fair value, it owes a moral duty to the purchaser; and this duty may be performed in the manner which the legislature has undertaken in the present act to prescribe.

Section 95 of the Constitution was not violated, because the land was not donated to any one directly or indirectly, nor sold to a corporation or association for a less price than it was offered to individuals. The legislature was careful to preserve the rights of the state. Under the act, the state is entitled to a fair and reasonable value for the land, regardless of any former attempt to purchase, and it got that.

We do not mean to impair the decision in Winton v. Day,supra, in any respect. What was there done is clearly prohibited, and the principles announced are wholesome.

Affirmed.