State ex rel. Rosenblatt v. Heman

70 Mo. 441

• Court: Supreme Court of Missouri
• Decided: October 15, 1879
• Status: Published

Opinion

Napton, J.

This action originated in the circuit court of St. Louis city, to enforce the lien claimed by the State for back taxes, as directed by the revenue law of April 12th, 1877. A demurrer was filed to the petition, which was sustained by the circuit court, but overruled by the court of appeals, and tbe demurrer presents tbe only question in the case. This land was forfeited to tbe State for the non-payment of taxes for the year 1868 under the revenue law of 1865, and it is insisted that under that law the State, acquired the title to all lands not sold to individual purchasers, and consequently' the lien of the State was merged in this title, and this extinguished the taxes. This construction is based upon the terms of the 116th section of the act, which reads : “ Every tract or town lot offered for sale by the collector, as hereinbefore provided, and not sold for want of bidders, shall be, and the same is hereby declared forfeited to the State of Missouri, and thence-r forth all right, title and interest of every -person whomsoever in and to such land or lot shall be considered as transferred to and vested absolutely in the State, and such real estate shall not afterwards, in any case, be subject to taxation and sale as other lauds, except as hereinafter provided, until again sold to some person by the State or redeemed.” The 1 i th section provides that “lands and town lots forfeited to the. State as aforesaid, may be redeemed at any time within two years from the date of the sale thereof, by the owner-on claimant paying the collector of' the proper county double the amount for which such real estate was forfeited,, and all taxes accruing thereon to the time of redemption, with 15 per cent, interest on each year’s 'tax from the 1st day of January in each year, to the time of such redemption.” The 120th section provides that “ siieh real estate last named shall not be sold for a less sum than the amount of the State and county taxes for which the same was forfeited, together with all subsequent taxes, costs and interest up to the time of sale.” The 123rd section declares that “ at any time after the close of any public sale made under the provisions of the last four preceding sections, the. collector may, and he is hereby directed to sell any of said real, estate that may be forfeited to the State and unredeemed or unsold and recorded on the forfeited list, at private sale to the person who will pay tbe full amount, including costs, interest and taxes due thereon.”

The act had previously provided (section 108) that “ real estate sold under the provisions of this act may be redeemed at any time before the expiration of two years from the date of the sale, by paying to the treasurer of the proper county double the amount for which the same was sold, and to the collector all taxes accruing after the sale.” The 99th section had made it the duty of the clerk of the county court to attend the sale for taxes and make a record thereof in a book called the “ sale book,” m which the amount of State and county taxes were to be recorded, and provided that “all such real estate as shall remain unsold for want of bidders, shall be entered by the clerk opposite such unsold tract or lot, ‘ sold to the State.’ ” Section 100 provides that “it shall be the duty of said clerk, after the sale aforesaid, to make out and record in a well bound book, to be kept in his office, open to inspection, a full and complete list of all real estate sold to the State under the provisions of this act, adopting, as near as may be, the form used m the precept, which list, so recorded, shall be called the ‘ forfeited list.’ ” By section 105 the clerk is ordered to “ transmit to the State auditor a statement under the seal ■of said court, and upon the blanks to be furnished by said State auditor, showing the separate amount of State and county taxes, and the interest and costs thereon arising from such sale due the State and county respectively, and at the same time he shall, in like manner, certify to the auditor the amount of taxes due the State and county respectively charged on real estate forfeited to the State at such sale, together with the interest and costs thereon.” Section 103 provides that “real estate sold under the provisions of this act may -be redeemed at any time before the expiration of two years from the date of the sale, by paying to the treasurer of the proper county double the amount for which the same was sold, and to the collector all taxes accruing after such sale.’' Section 118 declares it to be the duty of the several clerks of the comity courts of this State, (or county .auditor, as the case may be,) to “ certify under the seal of said court, to the auditor, a full and correct statement, showing the amount which has been paid to the collector on account of redemption of real estate forfeited to the State as aforesaid, showing therein the amount of State and county taxes separately, and the amount of interest and costs due each, a true copy of which statement shall be filed and kept in the office of such clerk of county auditor. At the same time it shall be the duty of the collector to pay into the State treasury the proportion of such redemption money belonging to the State, and take duplicate receipts therefor, and deliver one to the auditor, and shall pay monthly the proportion of said redemption money belonging to the county into the county treasury.” ' And section 127 says: “Immediately after any public sale of forfeited lands, the collector making such sale shall pay into the State treasury the proportion of money arising from such sale due the State, including whatever amount he may then have in his hands belonging to the State, arising from private sale of forfeited lands and lots under this act, and shall, in like manner, at his first annual settlement thereafter, pay into the State treasury the amount due the State arising from the private sale of forfeited lands, aforesaid; and, in like manner, said collector shall, immediately after such public sale of forfeited lands aforesaid, pay into the county treasury the whole amount of money then due the county, both arising from the public and private sales of said forfeited list up to that time.”

1. Interpetation of statutes. We concede that it is not the province of the judiciary to disregard the plain meaning of a statute on the ground ^ seems unwise or inexpedient, or .fails to efFect the purpose which the court may believe to have been in view. The Legislature can alone correct errors or repeal impolitic acts; but where the provisions of a law are inconsistent and contradictory to each other, or a literal construction of a single section would conflict with every other following or preceding it, and with the entire scope and manifest intent of the act, it is certainly the duty of the courts, if it be possible, to harmonize the various provisions with each other, and to effect this it may be necessary to depart from a literal construction of one or more sections.

2. Revenue law of 1865: forfeited lands: State's lien for taxes. It is upon the phi’aseology of the 116th section that reliance is placed to establish the position of the demurrer upon a forfeiture of land to the State, “all right, title and interest of every person whomsoever in and to such land or lot shall be considered as transferred to and vested absolutely in the State.” A literal construction of the terms used,, it may be admitted, would lead to such a conclusion, but that such an adherence to the letter of the section is inadmissible, we think, apparent from the following reasons :

1. - It will be seen by an examination of sections 108, 117, 120 and 123, which I have quoted above, and indeed the whole tenor of the act, that the lands and lots placed on the forfeited list continue to be taxed every year after forfeiture as well as before — not in the same mode precisely for obvious reasons — but they are still taxed, with interest and costs. The last clause of section 116 reads : “And such real estate shall not afterwards, in any case, be subject to taxation and sale as other lands, except as hereinafter provided, until again sold to some person by the State or redeemed.” That is, as I understand it, they are put in a separate list called the forfeited list, and consequently are not taxed as other lands are, but in a mode prescribed for this class of lands. Now, the present constitution of this State, (art. 10, § 6,) declares that “theproperty, real and personal, of the State, counties and other municipal corporations, and cemeteries, shall be exempt from taxation,” and every constitution which has ever been made for the State contains the same provisions — and every revenue law, so far as I have examined them, both before and since that of 1865, exempts lands belonging to the State from taxation. The act of 1865, in the 2nd section of the 1st article, expressly exempts from taxation. “ lands and otter property belonging to the State,” so that, if this 116th section is to be interpreted literally as investing the State with an absolute title to all these lands and lots on the forfeited list, all the provisions in the act for a continued taxation of them are nugatory and void, and the State instead of getting money, which is supposed to be the object of a revenue law, is becoming a great landed proprietor.

2. The owner’s right of redemption within two years after forfeiture, is given in the section immediately succeeding the one declaring the forfeiture to vest the State with an absolute title. It is difficult to reconcile the claimant’s right of redemption given by this 117th section with the absolute title declared to have been previously vested in the State by the 116th section, without some modification of the term “ absolute title.” A title liable to be destroyed by events subsequent to its emanation must be regarded rather as a contingent, or defeasible, or conditional one.

3. One would suppose that the proceeds of a sale of State lands, belonging absolutely to the State, would go into the State treasury; yet, we find from the sections I have quoted, especially section 118, that the collector only pays into the State treasury the proportion of redemption money belonging to the State, and into the county treasury the proportion of 'such redemption money belonging to the county. If an absolute title has vested, the county must have been regarded as a joint tenant, or a tenant in common with the State!

4. The management .of land belonging to the State by all our legislation, belongs to the register’s office, where the swamp lands donated by the United States and the sixteenth sections for school lands, and the military bounty lands and the 500,000 acre grant, are all disposed of. But this revenue act requires all matters acted on by county officers to go to the State auditor, as will be seen by reference to section 105, and the clerk’s certificate as to the amount of taxes due the State and county respectively, and the amount of costs, &c., thereon, is transmitted the State auditor, thereby showing the understanding of the Legistature that they were providing for revenue and not for the acquisition or sale of lands.

5. The loose and inaccurate phraseology of the 116th section seems partially to have found its way into the 99th and 100th sections that preceded it, by the former of which ■the clerk of the county court, who was directed to keep what is termed a sale book, was further directed to enter in said book opposite to any tract that remained unsold for want of bidders, the words “ sold to the State this list is subsequently termed the forfeited list,” which last name certaiuly conveys the meaning of the framers of the act rather more satisfactorily than the direction to place the word “ sold ” opposite to a tract because it was unsold.

6. The revenue law of 1871 and 1872, is based on the same general scheme with that of 1865, avoiding, however, the blunder of section 116, and simply declaring in reference to the forfeited lists, that the State retained a lien on the lands on such lists for taxes, interest and costs due thereon, (§ 226 of the act of 1872,) and such lien is all that was designed by the law of 1865, when all its various provisions are ’compared; and this act of 1872 may be regarded as a legislative interpretation of the former law.

Seeing then that a literal interpretation of section 116 and of sections 99 and 100 would conflict, not only with several other sections preceding and succeeding them, but with the main scope and sole purpose of the act, we are forced to the conclusion that the State’s lien, recognized in the act of 1872, and continuously thenceforward was all the estate or title intended to be vested in the State by the act of 1866, and consequently that the position assumed in the demurrer that the taxes were extinguished. by this supposed sale to the State, cannot be sustained.

3. Back tax act on 1877, constitutional. The second point relied on by the demurrant, that the act of 1877, under which this suit was brought, is unconstitution al, seems to be entirely based on the position taken m regard to the construction of the 116th section of the act of 1865-6, which has heen already construed. This act of 1877, it is urged, imposes a new obligation, and is therefore obnoxious to the prohibition contained in the 15th section of the second article of our constitution, which forbids a law retrospective in its operation. And this, it may be conceded, would be so if the 116th section, hy transferring the entire title in the land on the forfeited list to the State, thereby extinguished the taxes previously due. As, however, our opinion is not in accordance with this view, I will pass this point and proceed to consider the last one discussed, which relates to the statute of limitations.

4. -: Statute of limitation. The statute of limitations provides (2 "Wag. Stat., p. 917) that “civil actions upon a liability created by a statute” than a penalty or forfeiture, which latter are barred in three years, shall be barred in five years after the cause of action shall have accrued; and section 83 declares that “ the limitations prescribed in this chapter shall apply to actions brought in the name of this State, or for its benefit, in the same manner as to actions hy private parties.” The summary proceedings authorized by the acts of 1865 and 1867, which resulted in a judgment against the land, could not be regarded as a “civil action” within the meaning of this clause in the general statute of limitations. The act of 1872 for the first time gives an action against the owner of the land for the back taxes now sued for. There was no act of the Legislature before that authorizing any suit against the owner, and that act expressly repealed the limitation in the general statute by declaring that the action might’ be brought at any time “before the expiration of said fifth year as well as after the expiration thereof.” This section of the act of 1872 was by the eighth section of the act of March 31, 1875, expressly repealed, and section 5 of the act of 1875, again gave power to the county court to com-menee suit, at any time, in any court of competent jurisdiction, against the person of the owner of forfeited property. The act of the 12th of April, 1877, provides that '“all actions commenced under the provisions of this act shall be prosecuted in the name of the State of Missouri at the relation and to the use of the collector, and against the owner of tbe property.” The judgment, however, is that “the lien of the State be enforced” and the land or lot sold under a special fieri facias. This judgment is declared to be a first lien on said land. Section 15 declares that “ the provisions of section S3 of chapter 191, of the general statutes, in regard to limitations shall not apply to actions brought by tbe State under this act.”

No authorities are necessary to establish the proposition that a statute of limitations cannot begin to run until a right of action exists or is given to some one capable of suing on it. Conceding the three statutes above referred to as conferring a right of action on the State and therefore within the meaning of the general statute of limitations concerning civil actions; and conceding further that the acts of 1872 and of 1875 were governed by the general-statute although impliedly repealing them, let us see how this action under the act of 1877 stands. Before the right of action under the act of 1872 expired by the limitation of five years in the general statute, the act of 1875 repealed the section which gave this right but authorized a new action, substantially such as had been authorized by the act of 1872, and the right of action under this -act of 1875 had not expired when the act of 1877 was passed. This act of 1877 was therefore not a revival of a right of action previously barred. It would no doubt have been unconstitutional had it been of this character, but the act of 1872 gave five years within which to bring suit, and' before the expiration of this five years the act of 1875 repealed the right of action under it, and authorized a new action under that act, and it is'not pretender that the present suit was brought more than five years after this right .of action conferred by the act of 1875; so that, conceding the construction contended for in this case, that the action given by" the acts of 1872,1875 and 1877 were within the general provisions of the statute of limitations, it was still not barred. The judgment of the court of appeals is affirmed.

The other judges concur.