| Ill. | Dec 15, 1847
Lead Opinion
The Opinion of the Court was delivered by
This was an action of ejectment, and upon the trial of the case in the Court below, the counsel made an agreement by which two questions were made for the decision of the Court, the adjudication upon which was to settle the case.
The first question was as to the legality and sufficiency of the deed offered in evidence, and relied upon by the plaintiff to prove title in him to the land sued for. This was an Auditor’s deed of land sold by him for taxes, under the revenue laws of 1827 and 1829. The sale in this case was made before, but the deed was not executed until after the revenue law of 1833 was passed and took effect.
The second question for the decision of the Court was, whether the possession of the land in controversy and payment of taxes as required by law by the defendant, for seven years previous to the commencement of this action, constituted a bar to the title of the plaintiff. The defendant’s possession commenced seven years before this action was instituted, but the limitation law had not been in operation seven years prior to that period.
Upon this agreement the Court decided that the Auditor’s deed was evidence of title in the plaintiff; and second, that his title was not barred by the Statute of Limitations. To these decisions the defendant, by his counsel, excepted, and assigns for error, first, that the Court erred in rendering judgment for the plaintiff; and second, that the Court erred in deciding that the plaintiff’s right of recovery was not barred by the Statute of Limitations.
The first position ass.umed by the counsel for the appellant in the argument of this case is, that the revenue law of 1827, under which the land in controversy was sold and conveyed by the Auditor, for the tax due thereon, was unconstitutional; first, because it infringes the twentieth section of the eighth article, the eighth section of the eighth article and the first section of the fourth article of the Constitution; and second, because it infringes the Ordinance.
This is, undoubtedly, a grave and important question, and had the revenue law been one of recent date, and were there no adjudications upon its constitutionality, we might pause in affirming the legality of all its provisions. But it does not present itself in this attitude. The length of time this law has been in operation, (for all the provisions objected to are nearly as old as the Constitution itself,) the cotemporaneous construction it received, and the acquiesence therein, and also the adjudications of this Court in accordance with that construction and acquiesence, and in confirmation of its constitutionality, must, we think, be regarded as having settled the constitutionality of the law, with reference to both the Constitution and the Ordinance.
That the Court cannot regard the question raised by the counsel in relation to the opposition of the revenue law to the Constitution or the Ordinance, as proper for re-adjudication upon its merits, will be manifest upon a slight notice of the character of the cotemporaneous and judicial construction which this law has received.
All the provisions of the revenue law that are complained of, and that can be regarded as at all of a questionable character, are coeval, with the earliest legislation, under the Constitution, and their enactment was participated in by a number of the framers of that instrument. They continued in uninterrupted operation until the question of its constitutionality was brought before the Supreme Court in the case of Rhinehart v. Schuyler, in 1843, (2 Gilm. 473,) and by it sustained. Prior to this time, this law had received the unequivocal sanction of the legislature, by revisions and modifications of its details on numerous occasions, and that of the Courts, by adjudications upon questions growing out of its operation, and upon titles acquired under it. In short, it has been either directly sanctioned or acquiesced in by all the departments of Government, and by its officers, with the concurrence of the entire community, without a doubt or question, for about twenty years. Such a cotemporaneous construction of a statute, or constitutional law, thus approved and sanctioned, has always been regarded by the Courts as equivalent to a positive law.
In the case of Boyder v. Brooklin, and Goff v. Bloomfield, the Court decided that a long established construction of a statute by the officers to whom its execution is entrusted, ought to have the force of a judicial determination. 8 Verm. 286, 478.
It has also been decided that a cotemporaneous is generally the best construction of a law. It gives the sense of a community of the terms made use of by the legislature. 17 Mass. 143; 2 do. 477. And after the Judges of the Supreme Court of the United States had held Circuit Courts for little more than half the period that this law has been acquiesced in, under a law of Congress, they unanimously, I believe, determined that it was too late to inquire into the constitutionality of the law; that practice and acquiesence under it for such a length of time had fixed its construction.
The present is a stronger case of cotemporaneous construction than any of these, and one fully justifying a resort to the maxim of communis error fácil jus. But we are not under the necessity of relying upon general principles, or the analogy of adjudged cases, to sustain the constitutionality of the revenue law. It has received a judicial affirmation of the highest character of which it is capable. The case of Rhinchart v. Schuyler was brought before this Court for the purpose of settling this question. It was argued before the Court under its old organization, and again re-argued before it as at present organized, by eminent counsel, and with great ability, and after mature deliberation the Court, on both occasions, affirmed the constitutionality of the law. We repeat, therefore, that the repeated ratification of the constitutionality of the law by the several departments of the Government; the long practice under it by its officers, with the acquiesence and approval of the entire community, followed up as it has been by a solemn adjudication of the Supreme Court, corresponding with the sense and approbation of the Government and people thus indicated, must be regarded as having definitely settled this question. From these considerations, we are disposed to adhere to the law as already settled, even though we might regard some of its provisions of a doubtful character, if recently enacted. But among the most valuable attributes of a written Constitution, are certainty and uniformity; without these, it can afford neither confidence nor security. It will change with the individual opinions of the Judges, as they may succeed each other on the bench. The prior decisions will furnish no guide for the future, and all will be uncertainty and doubt.
Much has been said here and elsewhere against the policy of the revenue law, particularly as to the manner of valuing, classing, and selling land liable to taxation. It may not be improper, therefore, to remark, that if any apology was necessary for the manner of assessing land, as prescribed by the law, it may be found in the situation of the country at the time it was adopted. A large portion of it was uninhabited, except by the aborigines, which precluded the possibility of valuation by actual entry upon and inspection of the land by individuals. A classification and a corresponding valuation of the land, therefore, was the only mode that could be adopted by the legislature to raise a.revenue for the support of government. This system was uniform and bore alike upon residents and non-residents, and the same may be said with respect to every part of it. A summary method of proceeding for the purpose of collecting its revenue is a practice common to all governments, and is forced upon them by the natural principle of self preservation; for without revenue no government can continue to exist, and a resort to prompt and stringent means is generally found necessary to insure its collection. The protection of the person and property of the citizen, and also the property of the non-resident, imposes upon each of them as high an obligation to contribute their pecuniary assessment for its support, as it does upon the citizen to defend it with his arms, and when this duty is not voluntarily performed it ought to be enforced by the law; and when a resort to a sale of land for the purpose of collecting the tax due thereon, is forced upon the government, it would seem to be. the interest of the owner of the land, as well as the government, to inspire confidence in titles thus acquired, to make it sell for the best price. It is the want of confidence in these titles that contributes so largely to the sacrifice often incurred by individuals, as to have occasioned the remark in a spirit of condemnation, that on these occasions acres are sold for cents. This is doubtless often true, and will continue to be so, so long as there exists a want of confidence in titles to land sold for taxes. While, therefore, the Court should subject the acts of officers under this law to a severe scrutiny, they should not, because of the supposed hardship, seek for pretexts to set aside sales under it. It is doubtless the duty of the Government to adopt such a system as will be best calculated to give notice to the land owner when the tax thereon is due and must be paid, and after a sale for taxes the same policy should be adopted to notify him that the land has been sold, and also of the time within which it may he redeemed. And if this law is fairly complied with, neither the law that requires the sales, the Courts that adjudicate upon it agreeably to its spirit, and in accordance with the rules of interpretation applicable to the subject, should be held responsible for the consequences resulting from negligence or wilful omission of duty on the part of tax payers.
The next ground assumed by the counsel for the defendant, is, that the deed of the Auditor relied upon by the plaintiff, to prove title in him to the land in controversy, was not sufficient for that purpose, upon the assumption, that the law authorising the Auditor to make deeds to land sold for taxes, was repealed before this one was made, which consequently rendered it void. This is a question of considerable magni tude, on account of the great number of titles said to be depending upon its determination if for no other reason, but it is not without considerable interest, independent of this fact.
The record shows that the sale of the land in controversy, was made on the 12th day of January, 1833, and the deed therefor executed on the 8th day of November, 1833. At the time the sale was made, it is admitted that the statute authorized the Auditor to execute deeds to land sold by him for taxes; but before this deed was made, several sections of this statute were repealed, and to ascertain whether the authority of the Auditor to make deeds in pursuance of sales made by him prior to the repeal of these sections, was thereby taken from him, it will be necessary to notice the several provisions of the statute under which the. sale was made, and also those of the repealing statute.
Up to 1827, the legislature had repeatedly changed the mode of selling the land of delinquent taxpayers; sometimes requiring the sale to be made at the Seat of Government, by the Auditor, at another time by the sheriffs and clerks, in theTespective counties in which the land lay; and according to some of the statutes upon this subject, the authority-of the officer selling, to convey, by deed to the purchaser, could only be inferred from his authority to sell. The Act of 1827 .required the delinquent lands to be sold at the Seat of Government. The Act of 1829 declared the effect of the Auditors’ deed, and otherwise modified the revenue law of 1827. In 1833, the legislature again revised the revenue law, and required the sheriffs and clerks to sell delinquent lands in their respective counties, in place of selling them at the Seat of Government by the Auditor as heretofore, and in order to effect this change, they repealed the 3d, 4th, 5th, and 27th sections of the Act of 1827, “and all other sections of this law, and all other Acts and parts of Acts, coming within said Act of 1833.”
These repealed sections of the Act of 1827 related to the effect of the deed to be given, the redemption of land sold, and the disposition of that remaining unsold, and the 4th section prescribed the form of the deed which the Auditor was required to make to the purchaser. It is also to be observed, that the 25th section of the Act of 1827 declared that c6the Auditor shall make a deed to the purchaser, See.,3’ and that this section is not named as one of those repealed.
The question then arises, has the Act of 1833, by a repeal of the 4th section of the Act of 1827, or by the repealing clause, taken from the Auditor the authority to make a deed, after the repealing Act went into operation, to delinquent lands sold by him prior to that time.
It will be perceived, that both the 4th and 25th sections of the Act of 1827 required the Auditor to make a deed to the purchaser, and if the.repeal of the one section can be regarded as the repeal of the other, it must be by implication, and this position, I think, cannot be sustained, because there is no conflict between them, nor between the 25th section and any part of the Act of 1833. The rule of construction on this subject is, that if there be two affirmative statutes, or two affirmative sections in the same statute, upon the same subject, the one does not repeal the other, if both may consist together, and we ought to seek for such a construction as will reconcile them together. 2 Wash. Va. R 296.
This rule is directly applicable to this case. Here are two affirmative sections of the same statute, upon the same subject, but they are not opposed to each other. The 4th section of the Act of 1827 is repealed by the Act of 1833, because the duties enjoined upon the Auditor by that section are, by the Act of 1833, required thenceforth to be performed by the sheriffs, &c. But many sales had been made by the Auditor prior to the passage of that Act, where no deeds had been made by him up to that time, and the 25th section was, therefore, left unrepealed for the «purpose of continuing in him the authority conferred by it, in order to carry into execution the contracts of sale previously made, by the execution of deeds agreeably to the terms thereof, and the requisitions of the law. Many rights to deed had been acquired under the Acts of 1827 and 1829, which would have been defeated by abolishing the power of the Auditor with reference to them. It would also have violated a well settled rule of construction, that the provisions of any statute ought to receive such an interpretation, pf the words and subject matter will admit of it, as that the existing rights of the public, or of individuals, be not impaired. 6 Bac. Abr. 391.
Several changes were made in the revenue law by the Act of 1833, but the principal one contemplated by the legislature was, to change the place of selling, and the officer required to sell the land of delinquent tax payers, and to effect this change, it was unnecessary to interfere with the power of the Auditor in reference to previous sales and conveyances made by him, nor have they done so. All the provisions of the Act of 1833, in reference to the manner of selling and conveying delinquent lands, and the officers upon whom this duty is devolved, are prospective in their operation, and are always so understood in all cases, where, by the terms of the Act, any discretion is allowed to the Court. It is also worthy of remark, that in declaring what shall be the duty of the clerks and sheriffs, the language of the law is, that “they shall execute all deeds of conveyance to all persons who shall become purchasers of land, at the sales made by them, which deeds shall be as near as practicable, after the form as is now required to be given by the Auditor in similar cases,” thus, recognizing, at the moment of passing the Act of 1833, the existing form of the Auditor to make conveyances under the Act of 1827.
The doctrine of repeal by implication is not favored by the law, and is never resorted to, except when the repugnance or opposition is too clear and plain to be reconciled. The rule of law is, that all laws in pari materia are to be construed together, that no clause, sentence or word of any law, shall be superfluous or insignificant. Such a construction, therefore, as would abrogate the power of the Auditor to comply with the terms of sale, would be in direct conflict with this rule, and leave the 25th section of the Act of 1827 inoperative and void. Indeed, it would be contrary to every rule of construction, subversive of the right of third persons, and also in opposition to the clear will of the legislature, for it is laid down as a general rule, that, in considering the extent of a power, the intention of the parties must be the guide. When, therefore, it is borne in mind that the repeal of the 25th section is not necessary to effect the objects contemplated by the Act of 1833, and is not within its purview, and as the legislature did not repeal it in terms as they have the other sections of the Act of 1827, is not the legal and reasonable inference irresistible, that they did not intend to repeal it, and thereby do a wanton act of injustice to purchasers? And this opinion is strengthened by the solicitude manifested in all their legislation to inspire confidence in, and render valid titles to land sold for taxes. It would be unjust, then, without better grounds, to impute to them an act of deceit and fraud, for, to induce the purchase of land by a promise to convey, and after the receipt of the purchase money refuse to make a title, and leave the purchaser withont remedy, would be nothing less.
This question has been presented in another light, which it may be proper to notice, as it affords a conclusive argument in favor of the authority to convey.
It is not questioned that the Act of 1827 conferred upon the Auditor ample power to sell the land in question, and although this is a summary proceeding, and the Courts will scrutinize the acts and proceedings under it, yet I can see no reason- why the same rules of construction that are applicable to other Acts, for the purpose of ascertaining the will of the legislature, should not be applied to such as this, for the same object; nor is there any reason to forbid the application of the rule in this, more than any’other case, that every grant of power necessarily carries with it all the usual ordinary and necessary means for the exercise of that power; and if so, the authority expressly granted to the Auditor to sell, also carried with it by implication, the authority to convey; otherwise the authority to sell would be a useless and nugatory power, a mere mockery on the part of the State to delude and cheat those who should confide in her good faith. The conclusion, therefore, that the authority to convey was implied in the authority to sell delinquent land, is fully sustained by authority. 10 Pet., 161" court="SCOTUS" date_filed="1836-02-18" href="https://app.midpage.ai/document/william-c-s-ventress-executors-of-lovic-ventress-deceased-in-error-v-neal-smith-administrator-of-john-clark-deceased-85965?utm_source=webapp" opinion_id="85965">10 Peters, 161; 18 Johns. 418; 2 Cowen, 199, 233-5.
Upon the same grounds of cotemporaneous construction and acquiescence therein that we affirm the constitutionality of the revenue law, the authority of the Auditor to make conveyances after the passage of the Act of 1833 of. land sold by him before that time, under the Acts of 1827 and 1829, must also be sustained. It is true that there has been no direct judicial affirmation of this authority, as there was of the constitutionality of the revenue law; but there has been a long and continued exercise of this power by the officer to whom its execution was intrusted by the law, and that exercise of power has been acquiesced in, alike by those interested, as by the whole community. It has also received at least the indirect sanction of the Courts, by a recognition of the legality and sufficiency of deeds thus made, in all cases, and in every form in which they have been drawn in question. What has been said, therefore, as to the consequence and legal effect of the cotemporaneous construction which the law has received, is also applicable to the power of the Auditor to make conveyaances like the present.
But there is a constitutional ground upon which this question may be placed that, I think, is conclusive. I admit that a Court ought not to declare a law unconstitutional, unless the opposition between it and the Constitution is direct and clear; but when such is the case, the duty of the Court is imperative, and if it should shrink from its performance, it would betray the trust confided to it. Was it within the constitutional competence of the legislature to abolish the power of the Auditor to make a deed after the passage of the Act of 1833, to land sold prior to that time under the Act of 1827, and thereby deprive a purchaser of a deed from that officer, or any other authority competent to make a valid one?
The Constitution of the United States provides that no State shall pass any law impairing the obligation of a contract, &c. The State Constitution contains the same prohibition upon the power of the legislature, with the difference of the word “validity” in place of that of “obligation,” used in the Constitution of the United States. Is the sale made by the Auditor of the land in question, a contract within the meaning of the Constitution? That, I think, will be manifest by adverting to the law authorizing the sale, and the action under it. In order to collect its revenue, the State authorizes the Auditor to sell the land of delinquent tax payers, that officer accordingly gives notice that he will sell all such lands at a time and place specified, and as an inducement to purchasers, the law provides that the Auditor shall give to the purchaser a certificate of purchase, or a deed, at the option of the purchaser, to the whole or such part of each tract of land as he may purchase and pay the tax due thereon. Upon these terms the land is sold, the stipulated price paid by the purchaser, and a deed therefor executed by the Auditor; but before the deed is made, the law authorizing this officer to sell and convey delinquent lands is said to be repealed, and the duty of making these sales is imposed upon other officers. The case thus stated embraces all the constituent parts of a contract, so fully and clearly as to leave no doubt as to the character of the transaction. All argument, therefore, to prove it a contract would be superfluous, and that it is such an one as is contemplated by the Constitution can, I think, be made equally clear, and if so, it follows that the legislature could not constitutionally destroy the authority of that officer to convey the land according to the terms of sale, by a repeal of the law requiring the performance of that duty. Such an act would impair the obligation of the contract, and would consequently be void.
By a series of adjudications the constitutional provision referred to has been so construed, as to protect the validity of contracts from all legislative encroachment, in any and every form in which it maybe assailed. Any Act, therefore, which changes the expressed intention of the parties to a contract, or such as results from their stipulations, is held to impair its validity, and it is immaterial as to the extent, or the manner of the change, whether it be ever so minute, or relates to its construction, its evidence, or the time or manner of its performance, the conclusion is the same. Every conceivable change of a contract impairs its validity, and renders it null and void. 3 Story on Const. §§ 13 and 5; 3 Peters’ Cond. R. 395; 2 do. 308; 5 do. 369; 3 do. 295. This constitutional provision extends to and embraces both contracts executed and executory, and as well those entered into by a State, as those made by individuals. And in a leading case upon this subject, it has been held by the Supreme Court of the United States, that a legislative grant is a contract within the meaning of the Constitution, and that a subsequent Act of the legislature repealing it was null and void for that reason. Fletcher v. Peck, 2 Peters’ Cond. R. 308-20; Story’s Com. §§ 1379, 1385.
It is insisted, however, by the counsel for the defendant, that the subsequent Act of the legislature, which repealed the 4th section of the Act, which requires a conveyance to be made to the purchaser, is not in conflict with the Constitution, because it operates only upon the remedy of the purchaser, and not upon the obligation of the contract, and numerous authorities are referred to for the purpose of sustaining this position, but they totally fail to' do so. The execution of a deed to the purchaser by the Auditor, at the time, and in the form prescribed by the law, is as much a part of the contract as any other portion of it. It is one of the stipulations contained in the' law, as an inducement to the purchase of the land, and from its importance as confirming and evidencing title, it cannot be doubted was in the contemplation of the purchaser, at the time he made the contract. It, therefore, enters into and forms a part of the binding obligation of the contract, as much as the agreement of the purchaser to pay the price of the land at which it was bid off by him. 2 Howard’s (U. S.) E. 608.
It is not controverted that the legislature may change the nature and extent of the remedy by which a contract, and the rights of parties, may be enforced. But the cases referred to by the counsel for the defendant, to justify the repeal insisted upon, are such as affect vested rights, which are not secured by any constitutional provision, by reason of their not vesting under a contract, or such as take away a peculiar privilege, conferred by a prior Act, or the repeal of a penal or criminal law, by which the jurisdiction of the Court is divested, before any right under it has ripened into a contract, or vested interest. The authority to either repeal or modify according to their nature these pre-existing laws is admitted. There is also another class included in the reference, recording and limitation laws, in relation to which a great stretch of legislative power is allowed, yet, even with regard to them, it is not without its limit.
The obligation of a contract is that which obliges a party to perform his contract, or repair the injury done by a failure to perform, and as regards the remedy, it may be modified by the legislature, but not entirely abolished, for, in substituting one mode of proceeding for another, they must afford a reasonable remedy. An Act that should wholly extinguish all existing remedy so as to leave no redress, and no means of enforcing a contract, would, by operating in presentí, impair its obligation. 1 Howard’s (U. S.) R. 311, 316, 317; 5 Peters’ Cond. R. 369, 373, 374. If, therefore, the Act of 1833 be regarded as abolishing the power of the Auditor to make the deed in question, it is equally obnoxious to the constitutional prohibition, whether it is considered as operating upon the obligation, or the remedy upon the contract, because it extinguishes all redress, by taking from the purchaser all remedy against the only one who had authority to make the conveyance, without substituting any one in his place for that purpose, which might have been done; for it is not contended that there is, or can be a vested right in a particular remedy, or in a special mode of administering it. In these, then, there is no vested right, but there is such a right in some substantial and efficient remedy, and that right is as much within the protection of the Constitution, as the obligation of the contract. The Act, therefore, that takes away the old remedy, as is contended has been done in this case, without providing a new one, is repugnant to the Constitution, and void. 3 Story’s Com. 1379, 1375; 4 Littell, 42, 56; 6 Wend. 526" court="N.Y. Sup. Ct." date_filed="1831-03-03" href="https://app.midpage.ai/document/comstock-v-carr-8282579?utm_source=webapp" opinion_id="8282579">6 Wend. 526; 4 Cowen, 384.
It has been suggested by counsel that the legislature would make a deed upon a proper application; but that is not an adequate remedy, the grant of which depends upon the will of the legislature. “When,” says Judge Story, “we speak of the obligation of a contract, we include in the idea some known means acknowledged by the municipal law to enforce it.”
It is also a well settled principle, that the repeal of a law in which a contract consists, is an infringement of the Constitution. A legislative grant is a contract of this description, and so is the one under consideration so far as relates to the conveyance. A repeal, therefore, of that part of the law that provides for a conveyance would impair to that extent, the obligation of the contract. Whatever diversity of opinion, therefore, there may be as to how far the existing law enters into, and forms part of a contract between individuals as a general rule, I think there can no question but it does so in this case, and that the purchaser’s title to a deed cannot be taken from him by the repeal of a law that forms part of the contract. If it was otherwise, then every executory contract entered into by the State, or its officers on her behalf, in virtue of an Act of the Legislature, may be avoided by them at discretion, although the terms of the contract have been complied with by the other contracting party. 2 Peters’ Cond. R. 308, 457; 3 do. 295, 418; 4 do. 526, 539, 555; 3 Story’s Const. 1385.
The second assignment of error is, that the Court erred in deciding that the plaintiff’s right of recovery was not barred by the Statute of Limitations.
This assignment of error can be disposed of in a few words. The Statute of Limitations that went into operation the 1st day of June, 1835, provides that, “any person having color of title made in good faith to vacant and unoccupied land, who shall pay the taxes legally assessed thereon for seven successive years, shall be deemed to be the legal owner, &c.” In this case, the defendant had been in possession and paid the taxes for seven years prior to the commencement of this action, but seven years had not intervened between the commencement of the operation of this statute, and the commencement of this action. The possession of the defendant commenced after the passage of the statute, but before it went into effect, and between the time when the statute took effect and the bringing of this action, there was less than seven years intervening.
This statute declares that seven years’ possession, &e., shall confer title, but it is obvious that as it is by virtue of this statute that the title is acquired, that the possession must be under it, and that until the statute has been in operation seven years, no title can be perfected under and by virtue of it. It is insisted, however, that inasmuch as the possession of the defendant commenced after the passage of the Act, that seven years from that time should bar the plaintiffs’ title. This distinction would escape the injustice, and I might say the absurdity, of supposing that seven years’ possession that terminated, and was complete but the day after the statute took effect, would mature a title under it. But either construction would violate well established legal principles, for no rule of interpretation is better settled, than that no statute shall be allowed a retrospective operation, unless the will of the legislature to that effect is declared in terms so plain and positive, as to admit of no doubt, and this case is a good illustration of the wisdom of the rule. By giving the statute a retrospective operation, many who were relying confidently upon the existing law, might, in a few months, or even days after its passage, be deprived of all title to their land. Law is a rule of conduct, but how can that be said to be a rule to govern our conduct, or to affect our rights today, which is only to-day announced as a rule which shall thus govern our conduct, 8?c., ten days hence. This point is too well settled by authority, to require further comment. This very question has been decided by this Court, in the case of Rhinehart v. Schuyler, 2 Gilm. 473, and the same principle has been affirmed in numerous adjudications of other Courts.
The judgment of the Court below is affirmed with costs.
The cases of Bruce v. Schuyler, Bruen v. Graves, and Bean v. McNutt, were argued together and decided at the December term 1846, hut the Opinions were not filed until the present term. There was a vacancy upon the Bench at the time of the argument, occasioned by the resignation of the Hon. Walter B. Scales.
Concurrence Opinion
The following separate opinion was delivered by
I fully concur in opinion with the majority of the Court, in affirming and reversing the above judgments. I am, however, constrained to dissent upon one point. Whatever my individual opinion may have been upon the question of the constitutionality of the former revenue law of this State, I consider the question no longer an open one. It has been settled by repeated decisions of this Court, and should not again be agitated. But upon the point of the repeal of the law of the 19th February, 1827 by the Act of February 28th, 1833, I think the judgment of the Court is wrong. I may admit, that it was not intended by the legislature, but yet I cannot concede that they have not done it. I regard the 4th section of the Act of 1827 as the only one which confers any authority upon the Auditor to make a deed. In this alone the power is given, and the form of the deed prescribed. It provides that the purchaser, on presenting the Treasurer’s receipt for the payment of the money, shall be entitled to receive, at his option, either a certificate of purchase or a deed in the following form, to wit: (here follows the form of the deed to be made by the Auditor.) If the 25th section is examined, it will be found that it confers no new power, but was only passed with the intention and design of regulating the exercise of one already supposed to exist. It is as follows: “All sales of lands for taxes, whether by the Auditor or Sheriff, the officer selling the same, shall, previous to the sale, designate in what part of the tract the part sold shall be located, and shall make his deed accordingly.” Clearly, to my mind, this provision pre-supposes that the Auditor has already authority to make the deed, and was only enacted for the purpose of defining the specific duties of the officer In the execution of a power already conferred by law.
I agree to the affirmance and reversals of the judgments, because I believe that independent of any legislative enactment to that effect, the power to sell necessarily carries with it, by implication, authority to make a deed for the land so sold; and for the reason, that the purchase under the law which requires the Auditor to make a deed, is a contract between the State and such purchaser; that the law under which such contract is made, is a part of the contract itself, and that the same cannot be unconditionally repealed, without a violation of the obligation of the contract, and a consequent infringement of the 10th section of the 1st article of the Constitution of the United States.
Treat, J. said: Justice Purple. I concur in the views expressed by Mr.
Judgment affirmed.