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

I cannot agree with the majority opinion in this case holding the act of 1925 (chapter 12) on the subject of the foreclosure of tax liens, unconstitutional and void. Under our law, the Legislature can pass any act unless restrained by the Constitution from so doing.

The act in question is highly remedial, as it appears on its face. A situation had arisen under which, by virtue of the strict construction given by the court to all forms of tax collection procedure, it was almost impossible to collect taxes by virtue of sale at the hands of the treasurer, which was the only remedy specially provided. The statutes provided that the taxes were perpetual liens upon lands. A system had been provided of exposing these lands to sale. Sometimes there were bidders, and sometimes not. In the event there were no bidders, it was struck off to the county and certificates issued. Later, if these certificates could be sold, the purchaser could, at the end of two years after the date of the issuance of the certificate, apply to the treasurer for a tax deed, after certain notices were given. More frequently these notices were not in proper form, and very frequently the treasurer made mistakes in his advertisements, so that on the whole the expression was common that, "A tax title is no title."

In addition to a situation of this sort that would arise generally, a great many of the hands in this country were restricted lands. A great many of them had been sold while still subject to restrictions. People from the eastern side of the state were very familiar with the "30,000 land suits." In these suits, the United States government, as "parens patriae," through the medium of its attorneys, all over the eastern side of the state, was bringing actions in which there were a great many defendants that were not interested in any thing that was done by the other defendants in the case. The lands were different, the deeds were different, the vendors were different. Everybody knew of the troubles that arose, and yet the procedure was sustained by the federal courts and the Supreme Court of the United States. Somewhat analogous to this, the act in question was put into operation by the Legislature.

Objection was raised in this case that, under the Constitution, the title to the act was not extensive enough to fix it so that a person having tax certificates that were not defective could be embraced in them. However, as applied to the present case, they appear all to have shown some defect, either in the certificates that were issued in exchange for the money of the purchasers at the sales held to enforce taxes, or some other procedure, so that so far as this case is concerned, that complaint passes out of it. A complaint on that line, on account of the general nature of the act, practically was disposed of by this court in the case of Langley v. Cox, rendered March 12, 1929, and reported in the 135 Okla. 291,275 P. 638. However, if previous decisions of this court are to be used as a, standard on the subject of the purposes and requirement of section 57 of article 5, dismissing these cases under that section of the Constitution would be absolutely unjustifiable.

Numerous cases are cited under that section in the Statutes of 1921. A proviso to it, however, is such that if any subject is embraced in the act contrary to or not covered by the title, such act is void only as to so much of the law as is not expressed in the title. The title in this case is broad enough to cover any species of enforcement of tax liens through the medium of foreclosure procedure. But, if a strict construction is given, it applies to all cases of tax procedure of any kind, in which there is any defect.

A liberal construction was early given to legislation as being within the limits prescribed by this section, and it has been so given since. However, following the most illiberal construction, so far as the title is concerned in this case, the procedure is not prohibited. In the case of Jefferson v. Toomer, 28 Okla. 658, 115 P. 793, an act was assailed as being in conflict with this section of the Constitution, and the title was, "An Act Relating to Certain County and District Officers." Authorities at that time, from this state and others, were reviewed. In that opinion, at page 661 (Okla. Reports) the quotation is made as follows:

"In Ritchie v. People, 155 Ill. 98, 40 N.E. 454, 29 L. R. A. 79, it was said:

" 'Courts always give a liberal and not hypercritical interpretation to this restriction. All matters are properly included in the act, which are germane to the title. The Constitution is obeyed, if all the provisions relate to the one subject indicated in the title, and are parts of it, or incident to it, or reasonably connected with it, or in some reasonable sense auxiliary to the object in view. It is not required that the subject of the bill shall be specifically and exactly expressed in the title, or that the title should be an index of the details of the act. Where there is doubt as to whether the subject is clearly expressed in the title, the doubt should be resolved in favor of the validity of the act'."

Some complaints are made as to the constitutionality of this act with reference to procedure. It is contended in one of the briefs, and with a good deal of reason, that chancery jurisdiction has always existed under our Constitution in enforcing tax liens. However, as applied to this case, and to this act, reference is made to the general lien law as a guide, which the Legislature had a right to do, as it was already in existence. Same way about the cost and expenses. Some complaint is made that the burdens which are put upon the taxpayer, are greater by reason of the act. In reply to that, it can be truthfully said that the taxpayers' remedy is to pay the tax and let the state and its constituent elements have it, and in the event the state has already resorted to a sale and issuance of tax certificates, is to pay the certificate holder. So far as additional liens are concerned, they flowed as an additional incident from the tax sale, which took the form, first of a certificate, later of a tax deed. Simple payment or deposit with the treasurer would obviate the tax deed. If there were further difficulties, there certainly should have been a forum provided wherein those difficulties could have been investigated, the rights of the parties investigated, and ample remedy afforded. In the event of improvements being placed upon the land, it would be most unjust to take them away from the man, who, in good faith, had put them there, believing that he had a right to the land, and aside from statutes, equity would most generally provide for payment for these in some manner.

A fair sample of those things is the crystallizing into statute of equitable principles arising from the improvement of real estate, and various other equitable doctrines to work out justice between man and man. So far as the present cases are concerned, however, they are simple cases of delinquent taxes, and are an effort to foreclose the liens. It is purely a proposition of taxes paid and a seeking to adjust the rights of the parties arising therefrom, through court procedure, where everybody could be heard, and after being heard, their rights could be adjudicated, as distinguished from the summary methods generally resorted to in taxation matters.

An analysis of the brief of the plaintiffs in error on the subject of the constitutionality of the act, and comparing it with the opinion in the case, shows that the opinion goes much farther than the contention of those attacking the act. A great many imaginary cases could be thought of, as a possible outcome of any remedial statute on procedure, but the usual rule is to confine oneself to the case at hand and see whether or not the litigant before the court can raise the constitutionality of the act, or does it. At page 20 of the brief of the plaintiffs in error, the attack on the act seems to be in the following words:

"The subject, as expressed in the title, is the enforcement of tax liens on lands and town lots, by foreclosure proceedings, where the tax sale certificates, tax deeds, or any of the proceedings relating thereto, are void, voidable or defective. The title does not mention the creation of liens, and therefore, applies to liens previously created by law. If the act creates liens, the subject of the creation of liens is not embraced in the title.

"In the absence of a statute, the purchaser at a tax sale has no enforceable lien for reimbursement, if the title proves defective."

In the brief, the case of Blackwell v. First National Bank, 63 P. 43, from New Mexico, is cited, and section 9724, C. O. S. 1921, making taxes perpetual liens on property, is cited. Section 9737, providing for the certificate to be in writing and giving a lien for the taxes embraced therein, as well as subsequent taxes, is cited, and a privilege of redeeming two years after the sale is cited, and the statute permitting a deed to issue is cited. (sec. 9749.)

The contention is made that, prior to the act of 1925, the purchaser could only get a lien for two years of taxes, and a lone case is cited from Nebraska to that effect. The taxes actually paid after the end of two years, it is claimed, are not within the law, but there is no contention that the taxes for two years are not enforceable under the procedure. The argument is made that it was the intention of the tax law to ripen this lien for two years' taxes into a deed. Complaint is also made about attorney's fees being allowed in the recovery of the procedure. The case of Peet v. O'Brien, 5 Neb. 360, is referred to as holding that the lien on the land is protected by the act from any incumbrance or disposition of the property by the owner, during the time limited for redemption, and the certificate gives the purchaser a mere equitable interest in the property, which may ripen into a title by the execution of the deed, in case the land is not redeemed within two years.

The case of Walker-Taylor Co. v. Board of Com'rs of Okla. Co., 125 Okla. 226, 257 P. 324, is cited, and the syllabus is as follows:

"Where an act of the Legislature falls within section 57, art. 5, of the Constitution of Oklahoma, requiring that the subject-matter thereof be clearly expressed in the title, and such title merely relates to matters wholly incidental to the subject-matter contained therein, and in no manner discloses the vital object and character of the main purposes sought in such act, such title fails to meet the requirements of section 57, art. 5, of the Constitution, and is therefore invalid."

This is about all that the lawyers for the petitioners seem to be able to bring to the attention of the court as to the unconstitutionality of the act. There is complaint, however, as shown on page 36, about attorney's fees being allowed on the theory of vested rights. However, the slightest inspection of the matter will show that the attorneys' fee is only allowable as a result of the necessity of going into court. However, a case from Minnesota is cited, Jenks v. Henningsen, 113 N.W. 903, land the case of Blackwell v. First National Bank, supra, is cited. But none of these cases are cases arising out of the taxing of costs under the procedure.

If the landowner had paid the taxes that were due and which were a lien on his land, there would have been no occasion for taxing the attorney's fee in this case, and if the provision for an attorney's fee was void, all this court could do would be to take it out and let the other foreclosure go. So that, in this case, it would be a very good idea for the court to follow the suggestions contained in a decision cited by it, namely, Anderson v. Ritterbusch, 22 Okla. 761, 98 P. 1002, and especially paragraph 6 of the syllabus thereof, and especially paragraph 20 of the syllabus, and especially the quotation of Mr. Chief Justice Marshall, from Fletcher v. Peck, 3 L.Ed. 162, found on page 798 (Okla. Reports) as follows:

"The question, whether a law be void for its repugnancy to the Constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. * * * But it is not on slight implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other."

If every objection, however, urged here, was a valid one, still, under the Constitution of this state, this court would not have any right in my opinion to declare the entire act void, and to dismiss these actions. On the contrary, there does not appear, tested by the general principles of constitutional law and the power of the Legislature to adopt remedies, anything showing repugnancy here to the fundamental law. The general procedure law, of course, would apply, and also the procedure with reference to the foreclosure of liens, permitting the court to tax attorney's fees, it especially providing for that.

Great concern is expressed in the majority opinion for the infants, idiots, and lunatics, and their right to redeem. When this question comes before this court, it will be time enough to pass on that, but it is not believed that either litigant or attorney in this case belong to either class, and it is further believed that the lawyers in this case, if there had been any occasion for the protection of infants, idiots, and lunatics, would have suggested it somewhere in their briefs. There is expressed in the majority opinion the following:

"Under the law existing prior to the adoption of the act, the holder of a tax sale certificate was not entitled to possession of the real estate and the holder of a tax deed could obtain possession of the real estate adversely held only by an action brought within one year after the recording of the tax deed. Sec. 9753, C. O. S. 1921. The act provided that, upon request of the purchaser at the sale pursuant to the foreclosure, 'a writ of assistance shall issue to place said purchaser in possession of said land.' "

It will be well enough to figure on that when we get to it. A further statement is contained in the majority opinion, as follows:

"Under the procedure existing prior to the adoption of the act, redemption from a tax sale may be made, though a tax deed has been issued, if the tax deed is void, by paying to the county treasurer the amount of taxes, penalty and costs. Gulager v. Coon, 93 Okla. 62, 218 P. 701."

Complaint seems to be made in the opinion that, under the new procedure, the landowner would have to pay the full amount of the taxes, penalties, and costs, though in an amount far in excess of that paid for the tax deed.

On the whole, it appears to me that the opinion of the majority in this case, undertaking to destroy the act and dismiss the cases on the ground of unconstitutionality on which to rest, is without foundation. It takes a position far in advance of the contentions of the lawyers in the case, and it is a pretty good plan, where the lawyers and the lower court do not contend for a proposition of unconstitutionality, for this court to leave it where it is, unless it is sure of its ground and can find that some great public policy would be thwarted, unless the act of the Legislature be adjudged unconstitutional.

Believing that the opinion of the majority in this case may prove embarrassing in the administration of our tax law, and that it needlessly thwarts the action of the Legislature in the lawful exercise of its authority, I register this dissent.

I am filing this dissent to case No. 20255, but it is applicable to cases Nos. 20256. 152 Okla. 255, 4 P.2d 28, and 20257, 152 Okla. 256, 4 P.2d 29, and I register this dissent in each of those.

On Rehearing.