Hart v. Backstrom , 148 Miss. 13 ( 1927 )

I am unable to agree with the majority opinion, that chapter 231 of the Laws of 1920 is constitutional. I think it is clearly in conflict with section 61 of the Constitution. This act nowhere refers to section 5268, Hemingway's Code (section 2933, Code of 1906), and section 5271, Hemingway's Code (section 2936, Code of 1906), and is not a complete enactment within itself upon the subject of where the list shall be filed and what procedure may be taken to redeem the land; and it is necessary to take the two sections of the Code referred to above and the act, by striking out of the Code section certain matter and inserting certain provisions of the act mandatory thereof, to determine what the present law is.

Section 5268, Hemingway's Code (section 2933, Code of 1906, as amended by the Laws of 1912, chapter 230), reads as follows:

"Certain Lands to Be Stricken to State. — 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." Laws 1912, chapter 230, in effect March 16, 1912.

It will be seen, from a reading of this section, that the tax collector shall strike off lands to the state; that 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.

Chapter 231 merely says that it is not necessary for the tax collector to make report of the sales to the land commissioner as required in this section, until after the period of two years from the date of the tax sale, or the time for redemption shall have expired. It omits any reference as to whether the sales list shall be corrected by the chancery clerk, or any other person. The new act is silent as to what the tax collector shall do with the sales list during the period allowed for redemption. If it is to be filed with the chancery clerk, no time is specified in this act as to when it shall be so filed. The act provides that all redemptions shall be attended to by the chancery clerks of the respective counties; but the act does not contain the requirements for redemption, and does not say when, if at all, the list is to be filed with the chancery clerk by the tax collector. To get this information we are obliged to refer to other sections of the law, and deduce the law by a comparison of the new law with the old — substituting the words of the new act at appropriate places in the old act.

Is the list made by the tax collector of lands struck off to the state to be corrected by anybody during the two years? If so, by whom? The new act is silent upon that matter. The old act is not expressly repealed, and it requires the land commissioner to check the list of lands sold by the tax collectors with the records in the land commissioner's office and with the records in the Land Office of the United States. Is this still a requirement? If so, who shall make the correction? Does the new act contemplate that the correction of the list shall be deferred until after the two years for redemption shall have expired and no redemption taken place, or is this requirement dispensed with altogether?

Section 5270, Hemingway's Code (section 2935, Code of 1906), referred to in the majority opinion, refers to special sales where lands are not sold at the regular time, and has no bearing to sustain the act here under review. It does not support the majority opinion.

Section 61 of the Mississippi Constitution of 1890 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."

The new act does not comply with this requirement. It does not contain a complete enactment upon the subject with which it deals; neither does it set forth the section amended as it will read when amended.

In Seay v. Laurel Plumbing Metal Co., 110 Miss. 834, 71 So. 9, the court had before it the question whether chapter 232, Laws of 1912, undertaking to give certain persons liens upon property, and make more effective liens of laborers and others employed in the construction of buildings so as to amend and enlarge section 3074, Code of 1906. A comparison of chapter 232, Laws of 1912, with section 3074, Code of 1906, will show that the said chapter upon that subject was nearer a complete enactment than is the one before us, compared with the two sections referred to above; and the court held in that case that that act was void, because it did not comply with section 61 of the state Constitution.

In Badenoch v. City of Chicago, 222 Ill. 71, 78 N.E. 31, the supreme court of the state of Illinois discussed a similar provision to the one contained in section 61, and at page 78 of the official report (78 N.E. 33) the court said:

"It is contended upon behalf of the city that the effect of the Act of May 11, 1905 [Laws 1905, p. 285], is to amend the general statutes upon the subjects of attachment and garnishment in violation of section 13 of article 4 of the Constitution of 1870, which provides that `no law shall be revived or amended by reference to its title only, but the law revived, or the section amended, shall be inserted at length in the new act.' It will be observed from its reading that the title of said act purports to be the title of a complete act upon the subject with which the title deals, and if such is the effect of the act it is not in conflict with said constitutional inhibition, although it may have the effect to modify or repeal, by implication, existing laws. If, however, the effect of the new act is to amend the general statutes of the state upon the subjects of attachment and garnishment by intermingling the provisions of the new act with the provisions of those statutes or by adding to those statutes new provisions, so as to create out of the general statutes heretofore in force upon the subjects of attachment and garnishment and the new act a new law for the attachment and garnishment of the salaries and wages of the officers and employees of certain municipal corporations named in the title of the act, then the new act is clearly amendatory of the old statutes upon those subjects and in violation of said constitutional provision. . . . If it can be held to be such a law, constituting a complete and entire act of legislation on the subject which it purports to deal with, it will be deemed good and not subject to the constitutional prohibition, notwithstanding it may repeal by implication, or modify, the provisions of prior existing laws. On the other hand, if the act is merely an attempt to amend the old law for the assessment of property by intermingling new and different provisions with the old ones or by adding new provisions, so as to create out of the existing laws and this act together an act for the assessment of property, then the act is clearly amendatory of the old law, and the requirement of the Constitution is that the law so amended must be inserted at length in the new act. The character of the act in this respect must be determined, not by the title alone nor the question whether the act professes to be an amendment of existing laws, but by an examination and comparison of its provisions with prior laws which are left in force."

In State v. Beddo, 22 Utah, 432, 63 P. 96, the supreme court of Utah, in discussing a similar provision of the Constitution of that state upon statutes involved in that decision, said:

"The decisive question herein, it seems, arises under section 22, article 6, Constitution, which, so far as important here, provides that `no law shall be revised or amended by reference to its title only; but the act as revised, shall be re-enacted and published at length.' These provisions are clearly restrictive and mandatory. Under the first clause the legislature is deprived of all power to revise or amend any law by merely referring to its title. To make a valid revision of or amendment to any law, the act as revised, or section as amended, must be re-enacted and published at length as provided in the latter clause quoted. This is a wise provision of the Constitution, and was intended to avoid that confusion which would inevitably follow, if an act or section could be revised or amended by mere reference to the title, or section, or word, or line, as to which the change was intended to be made; for after repeated amendments so made the statute law would be rendered so ambiguous and imperfect, and in the course of time, would require the examination of so many enactments to ascertain what statutes were in force, as to render any satisfactory determination or conclusion exceedingly difficult if not impossible.

"Such revisions and amendments by mere reference to title, however, not only render the statute law difficult of construction, but they are calculated to confuse and mislead the public, and are therefore inimical to business transactions and the interests of the people. So they have a tendency to encourage improvident legislation, by misleading the average legislator, who, because of numerous additions, insertions, or substitutions, made with mere reference to the old statute or section, is unable to ascertain what the exact state of the law is, and yet it is of the highest importance that every member of the legislature shall have a correct understanding of what the existing law is before he attempts to revise or amend it. This fact was doubtless recognized by the framers of the Constitution who evidently intended the provisions, above quoted, as a remedy for the evils referred to. Therefore, when an act or a section is revised or amended, the same must be complete within itself, so that when published as revised or amended it will contain all the law upon the subject embraced in the act or section, and any matter, contained in the old statute or section, which is not contained in the new ceases to have the force of law, except as to past transactions. Suth. Stat. Const., sec. 131; Blackmore v.Dolan, 50 Ind. 194; Dod v. The State, 18 Ind. 56."

In Kansas v. Carter, 74 Kan. 156, 86 P. 138, the Kansas court, dealing with a similar constitutional provision of that state, at page 162 of the official report (86 P. 140) of the above case, said:

"In the parliamentary practice of England, the United States, and all other countries where the science of legislation has been cultivated and developed, it is customary to divide legislative enactments into sections [citing authorities]. By the Constitution of this state the section is made the indivisible unit of the legislative fabric. To insure the diligent attention of the legislative mind, the reading of a bill by sections at the time of final passage in no case can be dispensed with. Constitution, article 2, section 15. To prevent members of the legislature from practicing deception by the enactment of blind and confusing amendments, to prevent them from misleading themselves and the public as to changes in the law, and to remove the difficulties and uncertainties accompanying extended examinations and comparisons of various acts to ascertain the true state of the statute law upon any subject (People v.Mahaney, 13 Mich. 481), the constitutional provision quoted above was adopted by the people, making it necessary to embody in every amendatory act the entire section or sections amended and providing that the section or sections amended shall be repealed. This constitutional requirement is mandatory and invalidates all acts in contravention of its terms. State v. Guiney,55 Kan. 532, 40 P. 926; In re Ashby, 60 Kan. 101, 55 P. 336; 26 A. E. Encycl. of L. 709."

In Bates v. State, 118 Ala. 102, 24 So. 448, the supreme court of Alabama, in discussing the effect of similar constitutional provisions in that state, at pages 449 and 450 of the Southern Reporter (118 Ala. 106), said:

"In Ex parte Pollard, 40 Ala. 100, it was said, in construing this provision, as it appeared in the Constitution of 1865: `It was never intended by the Constitution that every law which would affect some previous statute of variant provisions on the same subject, should set out the statute or statutes so affected at full length. If this were so, it would be impossible to legislate. The constitutional provision reaches those cases where the act is strictly amendatory or revisory in its character. Its prohibition is directed against the practice of amending or revising laws by additions, or other alterations, which without the presence of the original are usually unintelligible. If a law is in itself complete and intelligible, and original in form, it does not fall within the meaning and spirit of the Constitution.'

"In the case of Bridge Co. v. Olmstead, 41 Ala. 9, the court construed the `act to amend an act, entitled an act to incorporate a company to build a bridge across the Warrior river, opposite the city of Tuscaloosa, approved Jan. 2, 1833.' [Acts 1865-66, p. 268.] Section 1 of the amendatory act provided `that the above recited act be amended, by additional sections, numbered and worded as follows, which additional sections shall, for all purposes, be deemed and held as a part of the original act, to the same extent, and in the same manner, as if the same had been incorporated therein at the time of its passage.' Then follow sections 11, 12, and 13. The court held that the act in its form was amendatory, not original; that it was placed in the legal attitude of being incorporated in additional sections in the original act; that its full effect could not be determined, without reference to the original act, as the entire operation of the provisions of the act could not be safely pronounced, without an examination of the other, with which, as parts of a whole, they are to be compared and construed. Referring with approval to what was said in Ex parte Pollard, supra, it was said, that `a judicial exclusion of such an act from the prohibition of the Constitution, would practically disregard its mandate.'

"In Gandy v. State, 86 Ala. 20, 5 So. 420, the construction of the Constitution as given in the case of Ex parte Pollard, as quoted above, was approved as the proper construction of that section.

"Our last and, perhaps, fullest utterance on the subject may be found in the recent case of State v. Rogers, 107 Ala. 444, 19 So. 909 [32 L.R.A. 520], where the authorities are reviewed, and the construction given to the clause of the Constitution under consideration in Ex parte Pollard was adhered to as the proper one. What was said by COOLEY, J., in People v. Mahaney,13 Mich. 481, is quoted and approved, namely, that `this constitutional provision must receive a reasonable construction, with a view to give it effect. 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 effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the law. 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 republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the Constitution wisely prohibited such legislation.'"

In Cooley's Constitutional Limitations (8 Ed.) at page 316, in case note to the discussion of the subject of provisions of the Constitution like section 61 of our Constitution, it is said:

"But, if an act `is not complete in itself, and is clearly amendatory of a former statute, it falls within the constitutional inhibition, whether or not it purports on its face to be amendatory or an independent act' (citing authorities). And, `even though an act professes to be an independent act and does not purport to amend any prior act, still if, in fact, it makes changes in an existing act by adding new provisions and mingling the new with the old on the same subject so as to make of the old and the new a connected piece of legislation covering the same subject, the latter act must be considered an amendment of the former and as within the constitutional prohibition' (citing authorities)."

The case of Buford v. State (Miss.), 111 So. 850, quoted from in the majority opinion and decided by the full court, is directly opposed to the majority opinion, and, if followed, would clearly make chapter 231, Laws of 1920, unconstitutional. This case is sound, and supports my view fully.

A careful study of the rules of procedure in the Constitution, in which section 61 is placed, shows that the Constitutional Convention was endeavoring to secure considered legislation as well as simplicity and certainty in the law itself. One of the provisions requires that every bill be read in full immediately before its passage. Another provision requires that bills be read at other times; and many other provisions were placed in the Constitution designed to secure the fullest attention to the law being passed by the legislature by the members thereof.

It would be impossible for a member of the legislature, merely listening to the reading of the act before us (chapter 231, Laws of 1920), to comprehend what the full effect of the act would be if given force. The section serves a useful purpose, and should be given reasonable construction, and should effectuate the purpose of the Constitutional Convention. I think the great weight of authority supports the conclusion reached. See 18 Dec. Dig. "Statutes," 51, 141(1), 141(2), 141(3), 166, and 170; 44 Cent. Dig. title "Statutes," sections 48, 198, and 209. In re Buelow (D.C.), 98 F. 86; Rose v. Lampley,146 Ala. 445, 41 So. 521; People v. Board of, etc., Chicago,221 Ill. 9, 77 N.E. 321, 5 Ann. Cas. 562; State v. Lincoln Tr.Co., 144 Mo. 562, 46 S.W. 593; Morrison v. Railroad Co., 96 Mo. 602, 9 S.W. 626, 10 S.W. 148.

In view of the foregoing, I am of the opinion that chapter 231 violates section 61 of the state Constitution, and that, as the list was not filed with the land commissioner as required by section 5268, Hemingway's Code (chapter 230, Laws of 1912), the tax sale was void. See Mayson v. Banks, 59 Miss. 447; Adams v. Mills, 71 Miss. 150, 14 So. 462; Howie v. Alford,100 Miss. 485, 56 So. 797.

I have some doubt as to the constitutionality of chapter 137 of the Laws of 1922, but my view is not strong enough to place against those of the majority on the grounds on which it is attacked here. Perhaps the state could attack it under another section of the Constitution, and perhaps the state alone could raise the constitutionality of that act.

SMITH, C.J., and McGOWEN, J., join in this dissent.