90 Me. 102 | Me. | 1897
The petitioner at one time owned in fee one undivided half of the land sought to be divided. The respondent undertakes to show that the petitioner’s estate has been transferred to him. To show this transfer he introduces deeds of the petitioner’s interest in the land from the treasurer of the town of Cape Elizabeth, in which the land is situated, to the town, and then traces title by mesne conveyances from the town to himself. These deeds from the treasurer of the town purport to be official deeds of the land as sold for non-payment of taxes thereon and are regularly executed and recorded. The respondent offered no other evidence of any transfer of the petitioner’s title.
The court has repeatedly held, however, and consonant with reason as well as authority, that such deeds alone are not even prima facie evidence of a lawful assessment of a tax upon the land, nor of legal proceedings for a sale of the land for non-payment of such tax, and hence are no evidence that a land owner has been deprived of his property according to “ the law of the land.” Phillips v. Sherman, 61 Maine, 548; Rackliff v. Look, 69 Maine, 516; Libby v. Mayberry, 80 Maine, 137 ; Ladd v. Dickey, 84
The respondent cites against these decisions the statute, R. S. c. 6, § 205, as amended by§ 11 of chapter 70 of the laws of 1895, which declares, in effect, that such a deed shall be sufficient and conclusive evidence of the lawful alienation of the original owner’s property though against his will, unless he shall have deposited with the clerk of the court the amount of all taxes, interest and costs accrued up to the time. The petitioner did not make this required deposit, and the respondent contends that, by force of the statute cited, the deeds are now to be taken as conclusive evidence of his own title.
The form of the pro forma ruling was that the treasurer’s deeds were sufficient in form and execution to make them prima facie evidence under the statute. In effect, however, the ruling was that the petitioner must make the deposit named before he could be heard to question the prima facie evidence; or in other words, that the deeds were conclusive evidence of title if the petitioner did not make the deposit. The question, therefore, is whether the petitioner can be lawfully required to make the deposit named in the statute, before contesting the validity of the assessment and sale of his land for taxes.
In Dunn v. Snell, 74 Maine, 22, the court strongly suggested, though without expressly deciding, that the owner of property is protected by the constitution against the statute cited. Finding the statute again invoked, and this time in such a way that it can not fairly be avoided, we have again carefully considered the question of its constitutionality. In our consideration we have given, as we should, great weight to the legislative opinion, and have kept in view the rule that no statute is to be declared unconstitutional unless it appears, to be unmistakably so. In this case, however, we are constrained to declare it our unhesitating opinion that this statute is against the plain letter and spirit of the constitution of this State and that of the United States.
Among the rights constitutionally guaranteed to the citizen against governmental action are — (1) to have remedy by due
While the legislature may regulate the use of legal remedies, may require the payment of various fees, and may require security to be given for fees and costs, the requirement of this statute is not within either category. This requirement practically is that before he “ begins ” his action, or his defense, he shall pay into court the whole sum claimed against him including interest and costs. With such an obstacle placed in his way by the Legislature, the citizen can not be truly said to have remedy by due course of law, or to have right and justice administered to him freely and without sale. As well might the legislature undertake to enact that no defendant shall begin his defense until he pays into court the whole sum demanded of him. It is not what has been done, or ordinarily would be done under a statute, but wha,t might be done under it that determines whether it infringes upon the constitutional right of the citizen. The constitution guards against the chances of infringement. It is evident that under this statute the citizen might in some cases be practically deprived of all remedy.
Again, the statute in effect undertakes to deprive the citizen of his property without his consent, and without procedure according to the “ law of the land,” or “ without due process of law.” The phrases “ law of the land ” and “ due process of law ” as used in constitutions are similar in meaning. They both imply a judgment by an authorized tribunal after an opportunity for a hearing. There must be some sort of a tribunal, some opportunity for a hearing, and some sort of an adjudication. These requirements at least are ingrain in the fundamental law. The legislature can not make that “ due process of law ” or the “ law of the land ” which
In violation of this constitutional guarantee this statute undertakes to make the ex-parte act of a mere ministerial officer deprive the owner of his property. A town collector of taxes, or a town treasurer, is a mere ministerial officer. He has no power to hear and determine, but only to act. His executing and delivering a tax deed of the land of one citizen to another citizen is a pure ministerial act. The statute assumes to say that the property owner in tlie first instance shall not question the authority of the ministerial officer nor the conclusiveness of the ministerial act to transfer his property. This is clearly undertaking to deprive him of his property “ without due process of law ” and otherwise than “ by the law of the land.”
It is true, and should not be forgotten, that under this statute the property owner may question the authority of the officer and the conclusiveness of his deed by paying into court the amount of the taxes, interest and costs claimed. It is not stated how this amount to be deposited shall be ascertained, whether from the recitals in the deed, or from evidence adduced by the parties, but since the deed is made evidence of title its recitals are evidently intended to be taken as true in the first instance. No mode is pointed out for the owner to question the amount to be deposited. He can not “ begin ” to question anything until he has made the deposit. He must deposit enough at his peril. His only safety is to deposit the amount claimed by the grantee to have been paid, or at least the amount recited in the deed as having accrued. This enables the adverse party by his claims, or the officer by his
In addition to the authorities cited in Dunn v. Snell, supra, others may be adduced. In blew York, the legislature undertook to enact that if a judgment debtor or his assigns desired to effectually enforce his own title against that of the purchaser of his land at execution sale he must pay to such purchaser, or his assigns, the amount paid by him upon the sale with interest and the costs of defending the execution title. The court held the statute to be in contravention of the constitutional guarantee to the citizen of his legal remedy. Gilman v. Tucker, 128 N. Y. 190. In Cromwell v. MacLean, 123 N. Y. 475, it was held that the legislature could not validate a void tax or a void tax sale. In Marx v. Hanthorn, 148 U. S. 172, it was declared that the legislature of a state could not make a tax deed conclusive evidence of the validity of the tax assessment and tax sale. See also Craig v. Flanigan, 21 Ark. 319; Pope v. Macon, 23 Ark. 644.
It is to be noted that we do not decide that the legislature can not make a tax deed prima facie evidence of title, leaving the original owner free to contest it, — nor do we decide whether that is the effect of this statute. We express no opinion on that point. We only decide that the legislature can not impose the condition named in this statute upon the owner’s right to assert or defend his title or claim. The pro forina ruling practically enforced that condition and hence must be overruled.
Exceptions sustained.
