Eskridge v. McGruder

45 Miss. 294

• Court: Mississippi Supreme Court
• Decided: October 15, 1871
• Status: Published

Opinion

Tap,bell, J.:

By an act of the legislature approved December 2, 1858, it was enacted by section 1, “thaf there be and is hereby levied and assessed, a uniform tax of ten cents an acre per annum,” for the period of five years, oh lands described in the act, and particularly upon the lands hereinafter mentioned. This tax was made payable annually, “on or before the 1st day of April in each year, from the 1st day of April 1859, to the 1st day of April, 1863, inclusive.”

By section 2, it was made the duty of the respective “sheriffs” of the several counties named “to collect said tax” thereby “assessed within their respective counties, within the time prescribed” in the act, “that is to say, the first amount due on or before the first day of April, 1859, and annually thereafter until the whole shall be paid.” The sheriffs “of the counties of De Soto, Panola, Tallahatchie, Sunflower and Yazoo ” were'required “to pay the tax collected in their respective counties to the treasurer of the board of levee commissioners,” etc.

Section 4 directs the bonds of the “sheriffs” and their •amounts. Section 5 prescribes the same proceedings, and damages for failure to collect and pay over, as in case of failure to collect and pay over state and county taxes.

Section 6 enacts, “That the tax hereinbefore levied or assessed shall be a lien on the lands within said district, and should any owner or owners of any lands, or persons interested in the same, fail to pay the taxes hereinbefore levied and assessed, at or before the time when the same may become due, it shall be the duty of the sheriff of the county in which said delinquent land may be situated without further notice, on the second Monday of April in each and every year after the said tax may become due, to sell at the court-house door of his proper county, the land in default, or so much thereof as may be sufficient to pay the tax required and all costs, to the highest bidder for cash, and, when sold, to execute a deed therefor to the purchaser, which deed shall vest in said purchaser a full and complete fee simple to the land so sold, and said deed shall be taken and received in any court of justice as vesting’ a perfect title in the purchaser, and shall be evidence that the title of the owner or owners, as well as the claim of all persons interested therein, is thenceforth vested in the purchaser, and shall be prima facie evidence that the land was subject to the tax for the non-payment of which the same was sold, and that all the pre-requisites of said sale had been complied with,” etc.

Section 30 directs the act in pamphlet form to be sent to the sheriffs of the several counties interested.

By an act approved February 9, and taking effect March 1, 1860, that portion of the county of Tallahatchie in which is situated the lands in controversy was detached from Tallahatchie, and annexed to the county of Sunflower.

Section 2 of the act last named directs, “That the taxes which have ’ already accrued, and been assessed, shall be collected and paid into the state and county treasury, by the tax collector of Tallahatchie county as is now provided by law.”

Section 3 provides, “That the board of police of Sunflower county shall procure from the records of Tallahatchie county, copies of all deeds, judgments, and other matters of record relating in any manner to the portion of Tallahatchie county, hereby transferred and annexed, or to the inhabitants thereof and shall cause the same to be duly recorded in Sunflower county.”

Section 4 declares, “That no suit or suits already instituted shall be abated, dismissed, or in anywise affected in consequence of the change of the county boundaries made by this act.” On the 9th day of April, 1860, Wm. S. Eskridge, bought at a public sale for levee taxes for 1859, made by the sheriff of Tallahatchie county, tax collector for that county, certain lands included in that portion of the county of Tallahatchie detached therefrom, and annexed to the county of Sunflower under the law of February 9, 1860. On the 4th day of February, 1868, Eskridge filed his bill under the act of February 10, 1860, in the chancery court of Sunflower county to perfect his title to the lands he had purchased as aforesaid. The bill is against Maria McG-ruder and others, and charges that on the said 9th day of April, 1860, the sheriff of Tallahatchie county sold according to law, for the levee taxes due therein for the year 1859, the lands therein described, the complainant becoming the purchaser thereof for the sum of $48 31. A copy of the tax-collector’s deed is made an exhibit. At the expiration of two years, the lands remaining unredeemed, the deed was duly recorded in the proper office. The complainant states that he is in possession of those lands by a tenant, but that the defendants named claim to have title to the same lands and threaten to disturb the possession of the complainant, whereby a cloud is cast upon his title, and therefore he files his bill to remove that suspicion or cloud.

The defendants pleaded the sale of the lands described by the tax collector of Tallahatchie, when in fact they were situated in Sunflower county, insisting that the sale was therefore void. This plea was sustained and the bill dismissed. From that decree the complainant appeals to this court, and assigns for error the action of the court below in sustaining the plea and in dismissing the bill.

The solution of this case depends upon the construction which shall be given to the statutes quoted.

The act transferring a portion of the county of Tallahatchie to the county of Sunflower was with a full knowledge of the law of 1858, by which the levee tax was assessed. The bonds of the tax collectors or sheriffs were executed and their sureties assumed responsibilities with reference to the circumstances existing at the time, and not to the change made by the law creating new county boundaries. The latter statute went into operation on the first Monday of March, 1860, and the sale of lands for delinquent levee taxes was on the second Monday of April thereafter. If it is assumed that the collection of levee taxes in that portion of Tallahatchie transferred to Sunflower devolved upon the sheriff of the latter, then the collection must necessarily have been suspended, until, by obtaining the requisite information, their collection could be proceeded with intelligently, properly and legally. It can hardly be presumed that the legislature intended a suspension of the collection of the levee tax, and the consequent uncertainty, confusion and inconvenience to the people, and the necessarily injurious effect upon the public interests. It would be preposterous to suppose the legislature purposely omitted from section 2 of the act of transfer a direction as to the levee tax, in order to give a pecuniary benefit to the sheriff of Sunflower, which is the only conceivable motive of an intentional omission.

The more just presumption is, that the legislature did not intend, in the change of county boundaries, to interfere with the collection and distribution of the levee taxes as presented by the law of 1858, as to the tax of 1859. Did the law transferring a portion of Tallahatchie to Sunflower, confer upon the tax collector of the latter the duty of collecting the levee taxes in the transferred district % Section two of the act of February 9, 1860, directs “the taxes which have already accrued, and been assessed, to be collected and paid into the state and county treasury by the sheriff of the county of Tallahatchie, as provided by law.” So far as the county taxes were concerned, this was a simple act of justice to the people of the last-named county; but, as to the state taxes, there was no more occasion for any direction than as to the levee taxes. Indeed, the interruption, uncertainty and confusion likely to follow the want of direction, would apply with equal force both to the lev.ee and the state taxes. It would be unjust and invidious to suppose the legislature of 1859 and 1860 to have been unmindful of so important a matter as the levee • taxes, and of the people affected thereby. The most natural and reasonable conclusion, to our mind is, that the legislature supposed the levee tax of 1859 wholly unaffected by the transfer; or, that the absence of express direction to pay the levee tax over to the proper treasurer in section two of the law of 1860, was an accidental omission—“an error of carelessness” in legislation.

'We adopt the latter theory as the most probable interpretation of the legislation connected with the statutes under consideration, and this brings ns directly to the question involved, viz! : Was the sheriff of Tallahatchie warranted in selling, on the second Monday of April, 1860, lands in the district transferred to Sunflower, upon which the levee tax of 1869 had not been paid? The statute of 1858, which assessed the levee tax, directs this tax to be collected by the sheriffs of the respective counties wherein the lands are situated, having in view, of course, county boundaries as then existing. In 1860, by an act of the legislature, which took effect on the first of March of that year, a portion of the territory of Tallahatchie was transferred to the county of Sunflower. The sale of real estate for delinquent levee taxes was required to take place on the second Monday in April, so that from the transfer to the sale there were less than six weeks time, with leave to tax payers to make voluntary payments to the first day of April. Hence, if the sale devolved upon the sheriff of Sunflower, he had only from the first day of March to the ninth day of April within which to obtain from the sheriff of Tallahatchie the necessary information or data to enable him to conduct the sale legally. This involved the suspension' of the reception and collection of taxes for a time at the most critical period of their collection, and their payment by the transferred people at an unusual place. The statute properly directed the collection and payment of the state and county taxes in their usual channels. Is it not most probable that the legislature accidentally overlooked the levee taxes, or supposed the tax of 1859 unaffected by the change of county lines ? Ch. J. Marshall, in Fisher v. Blight, 2 Cranch, 386, says, “When great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain, in which case it must be obeyed.” It must be conceded that great “inconvenience” would have accrued to-the public interests by the necessary suspension of the-collection of the tax, and the consequent uncertainty and confusion in the minds of the people from a contrary construction of these statutes at the time, by the officials, and that worse results would doubtless follow such a construction now. Lord Mansfield held as a rule upon this subject, “that all statutes which relate to the same subject, notwithstanding some of them may be expressed, or are not referred to, must be taken to be one system and construed consistently.” The act of 1860 does not refer to that of 1858, and those statutes can be “construed consistently” only by holding them to be “one system,” and that the collection and distribution of the levee tax for 1859 was not changed by the transfer act of 1860.

The spirit of an observation of the learned judge, Chief Justice Holt, in Sir Wm. Moore’s case (Ld. Raym. 1028), “ If a thing contained in a subsequent statute be within the reason of a former statute, it shall be taken to be within the meaning of that statute,” sustains the conclusion that a direction to the. sheriff of Tallahatchie, to collect and pay the levee tax of 1859, was within the meaning of section 2, of the law of 1860. The declaration of Chief Justice Holt has been repeated in numerous cases and in a variety of forms of expression, thus: “ Statutes must be expounded according to their meaning, and not according to the letter.” Billow v. Beshnell, 5 Barb. 156; People v. N. Y. C. R. R. Co., 13 N. Y. 78. “A thing within the intention is within the. statute, though not within the letter, and a thing within the letter is not within the statute, unless within the intention.” People v. Utica Ins. Co., 15 Johns. 358; Dresser v. Brooks, 3 Barb. 429. The rule so variously expressed is venerable for its age, and is thus repeated in People v. The Utica Ins. Co., 15 Johns. 358: “ A thing within the intention, is as much within the statute as if it were within the letter, and a thing within the letter is not within the statute if contrary to the intention of it.” This ruléis more briefly expressed in Griswold v. National Ins. Co., 3 Cow. 89; Crocker v. Crane, 21 Wend. 21, etc.: “In construing a statute, the intention of the legislature should be followed wherever it can be discovered, although the construction seems contrary to the letter of the statute.” The construction we give these statutes is “contrary to the letter” thereof, but it would discredit the lawmakers to suppose they intended to interrupt the collection of the levee tax in the short space of time allowed, from the 1st of March, when the transfer took effect, and the 9th of April when the sale would occur, to obtain copies of maps, assessment rolls, etc., and re-arrange the sheriff’s bonds, in order that the sheriff of Sunflower might complete the collection in the territory annexed thereto. It is more agreeable to suppose they intended the levee law to remain in force for the collection of the tax of 1859 to its consummation by sale, and that section 2 of the laws of 1860, in effect, so directs, embracing the principle of “ equitable construction,” sometimes entertained by the courts, as well as the rule so often repeated. In the case of Donaldson v. Wood, 22 Wend. 395, it was said, “A construction which is contrary to natural justice and equity, or which will be necessarily productive of practical inconvenience to the community is to be rejected, unless the language of the lawgiver is so plain as not to admit of a different construction.” That the construction of these statutes, according to their strict letter, would have resulted in “ practical inconvenience to the community” interested, and to the officials, and that such a construction would have been “contrary to natural justice and equity,” appear to be irresistible conclusions from the facts and circumstances of this case.

■A statute of New York empowering certain officers to contract with the publishers of some newspaper to publish the legal notices of the state, though it did not authorize, in terms, new contracts on the expiration of the first, was construed in Weed v. Tucker, 19 N. Y. 422, as authorizing such further contracts. The basis of the decision was that the statute was remedial, and to be liberally construed. With much greater force did the public interest, the convenience, and good will of the people concerned demand the construction of these statutes, which was adopted at the time.

The rule so often mentioned is illustrated by numerous English cases, one of which will suffice for our present purpose. The 13 Eliz. ch. 10, being enlarged by the 14 Eliz. ch. 11, although only the former of these statutes was recited in 18 Eliz. ch. 11, yet, it was held that the latter was virtually recited therein. Bayley v. Murin, 1 Vent. 246; Bac. Abr., title Statute. In the presence of that determination we are far within accredited authority in holding that, as to the levee tax of 1859, it was undisturbedly the law of 1860, or that the collection and distribution of payment according to the law of 1858 was virtually continued as to the transferred territory, to the completion of the collection of the tax of 1859 by sale, if necessary.

Hobart, when asked by what rule the judges guided themselves in the exposition of statutes, answered that “it was by that liberty and authority that judges have over laws, especially over statute laws, according to reason and best convenience to mould them to the truest and best use.” Bacon, adopting the language of Hobart, educes a like rule: “The power of construing a statute is in the judges, who have authority over all laws, and more especially over statutes, to mould them according to reason and convenience to the best and truest use.” It has been declared that there are, in all cases of judicial interpretation of statutes, two great heads of investigation : 1st. The object to be attained; 2d. The means to be employed. The first involves an inquiry into the intention of the legislature, and the second, the facts within and without the statute to be inquired into to ascertain the intent of the doubtful phraseology. Most statutes are referable to certain classifications, and as to each class there are established rules in aid of their interpretation ; as, statutes conflicting with a constitution or with a fundamental law, statutes in derogation of the. common law, statutes prescribing forms of - procedure, or modes of proof, penal statutes, remedial statutes, statutes authorizing summary judicial proceedings, and the like; but the statutes under consideration can scarcely be classed under any of these heads. They are perhaps more nearly allied to remedial statutes, in this, that the change of county, boundaries was doubtless intended for the public good, the convenience of the people, and the promotion of the welfare of the community interested. Hence, the legislature could never have contemplated any inconvenience, in connection with the levee tax, as the .result of the change of territory. No “ mischiefs” are alleged as connected with the collection of this tax which the transfer was designed to remedy, and so, the presumption is evident, that the legislature did not intend to create them by the act of transfer, which would have been inevitable by holding that the collection of the levee tax of 1859 in the transferred district was conferred upon the sheriff of Sunflower county.

Where a statute of New York declared that if a corporation did not organize and commence its business within a year from the time of the passage of the charter it should become void, a company, formed under the statute, did not organize or. commence its business within the year; but within that time, and eighteen days before its expiration, an act was passed amending the charter, continuing the directors in office for a year, and authorizing the stock subscription books to be again opened. It was held that a fair construction of the amendatory act was to give the company one year from the time of its passage for its organization and the commencement of its business, on the ground that it was wholly improbable that the legislature expected or intended that the company should complete its organization and commence its business within the short space of eighteen days. Johnson v. Bush, 3 Barb. 207, 238. So, in the case at bar, “it is wholly improbable that the legislature expected or intended,” that the collection of the levee taxes in the. transferred district,.should be also transferred “in the short space” of time allowed from the 1st of March to the 9th of April.

We have referred to the leading inquiries in all cases of judicial construction of statutes, namely: the object of the enactment and the intention of the law-maker, and the means of ascertaining that intention, as to which Blackstone says: “The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequences, or the spirit and reason of the law.” “It is a sound principle,” by the court in Tounele v. Hall, 4 Comst. 140, “that such a construction ought to be put upon a statute as may best answer the intention which the makers had in view ; and that is sometimes to be collected from the . cause or necessity of making it, at other, times from other circumstances.” We are not aware of the “cause or necessity” of .the transfer of a portion of the territory of Tallahatchie to Sunflower. If there were “ mischiefs to be suppressed” and “remedies to be advanced,” we are not informed of them, and, indeed, we suppose this law is not one to be tested by these rules. Hence, we must look for the intention of the legislature in “other circumstances,” in the “effects and consequences,” or the “spirit and reason” of the transfer, “according to the true intent of the makers of the act, pro bono publico.” Heydon’s case, 3 Rep. 7. But we need not multiply precedents, which are without number, nor rules which have for a long time guided the courts. The subject occupies a large space in the text-books and reports, and is at all times full of difficulties and perplexities. The American courts have pursued a much more restricted and conservative line of decision than the English, which at the first were fairly chargeable with a usurpation of the duties of legislation. With us, no principle is more firmly established than the rule, that when a law is plain and unambiguous, the legislature shall be intended to mean what they have plainly expressed, and consequently no room is left for construction. The intention of the legislature is to control absolutely. When that intention is clearly ascertained, the courts have no other duty than to execute the legislative will. It is only in cases where the intention of the legislature is ambiguous that the power of construing a statute exists in this country. Referring again to the statutes under consideration, we quote briefly, in the light of the foregoing, viz.: Section 6 of the act of 1858, treats the levee tax as ‘£ levied or assessed ’ ’ by the act, and provides that any person failing to pay the taxes thereinbefore “levied and assessed,” the lands of such person shall be sold, etc. Indeed section 1 enacts that the tax “ be and is hereby levied and assessed.” Section 2 of the act of 1860, directs that the “ taxes which have already accrued and been assessed,” shall be collected and paid over to the state and county treasury, “ as is now provided by law.” The levee tax had “accrued and been assessed,” and its disposition was “provided” for by the “law” which levied and “assessed” it. Was that disposition changed by the act of transfer ? In the light of the rules and adjudications in such cases, and of the facts of this, we are clearly of the opinion that a direction to the sheriff of Tallahatchie to observe the levee law of 1858, for the collection and payment of the levee taxes of 1859, in the transferred district, was virtually contained in section 2 of the act of transfer, and we are conducted to this result by all the authorities, by every rule and adjudication, and from the various points of view by which we are able to test this case.

Kent gives this expressive rule upon the subject before us: “ In the exposition of a statute, the intention of the law maker, when ascertained, will prevail over the literal sense of the terms; and its reason and intention will prevail over the strict letter. When the words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt and the remedy in view; and the intention is to be taken or presumed according to what is consonant with reason and good discretion.” The conclusion we have reached, seems to us to be according to the “reason and intention” of the statutes referred to, and “ according to what is consonant with reason and good discretion.” Vide Sedgwick on Stat. and Const. Law, ch. 6 and 7, 225-383, and very numerous decisions cited by the author.

The decree sustaining the plea and dismissing the bill is reversed, and the cause remanded.