Coats v. Hill

41 Ark. 149 | Ark. | 1883

Smith, J.

i. taxti. TLBS. Act of January const ft uSot1 íí pealed, swb s qnent acts The defendant in ejectment moved to dismiss J the action because, as he alleged, he held the lands by vir- ° sun<Ry tax deeds, which were exhibited, and had paid taxes and made valuable improvements since his purchase; and neither the plaintiff nor any other person had tendered r j s. amount of all taxes and costs paid on account thereof interest and penalties, and the value of such improve-men£s> action was accordingly dismissed and the plaintiff has appealed. He .insists that. Sec’s. 2267-8-9 of Gantt’s Digest, which direct that an action against a purchaser at tax sale shall be dismissed for failure to make such tender previous to the commencement thereof, are in conflict with the Constitution of 1868, which was in force when the tax sales in question were had; or, if this be not so, that those sections have been repealed by subsequent legislation.

The constitutionality of this statute, at least so far as the Constitution of 1836 is concerned, was settled in Craig v. Flanagin, 21 Ark., 319, and Pope v. Macon, 23 Id. 644. Nor is it affected by any provision of the Constitution of 1868. Our attention has been called to Sec. 10 of the Bill of Rights in that instrument which declares that “every person ought to obtain justice freely and without purchase and to the case of Weller v. St. Paul, 5 Minn., 95, which holds a similar act to be unconstitutional because it, in effect, compels the plaintiff to purchase his status in coui’t. But the authority of the legislature over the whole subject of 1 legal remedies is ample. They have annexed as a condition precedent to the assertion in court of the right of the former owner, the payment of taxes, costs and the value of improvements. Surely a general declaration of the right of the citizen to his day in court was not intended to preclude the legislature from requiring him to do equity when he did come. Cooley on Taxation, 371, et seq.

2. stat-Repeal Then as to the repeal of the statute ; certainly there has been no express repeal, and repeals by implication are not favored. To produce this result, the two acts must be the same subject and there must be a plain repugnancy between their provisions ; in which case the latter act, without the repealing clause, operates to the extent of repugnancy, as a repeal of the first. Or, if the two acts are not in express terms repugnant, then the latter act must cover the whole subject of the first and embrace new provisions, plainly showing that it was intended as a substitute for the first. United States v. Tynen, 11 Wall, 88; Henderson’s Tobacco, Ib. 652; The Distilled Spirits, Ib. 356; Daviess v. Fairbain, 3 How,, 636; United States v. Walker, 22 Id. 299; McCool v. Smith, 1 Black, 459; Johnson v. Byrd, Hempt. Rep., 434; Pulaski County v. Downer, 10 Ark., 588; State, use, &c., v. Watts, 23 Id. 304; Osborn ex parte, 24 Id. 479; Mears v. Stewart, 31 Id. 17.

the lana. Now the act of January 10, 1857, from which the above-mentioned sections are brought forward into the Digest, is entitled, “An act to quiet land titles in this State,” although it relates exclusively to tax titles. And the acts which are relied on as virtually repealing it are the general revenue laws of July 23, 1868, and of April 8, 1869. So that these enactments are not precisely upon the same subject, nor do they cover the same field ; and upon comparison of their provisions it will be found that the only inconsistency between them is, as to the time within which the tax title must be assailed and the amount to be paid to the purchaser at tax sale before he can be evicted. And to this extent the former act may be considered as revised and modified. But there is no indication that the legislature intended to abandon the policy of requiring the defaulting tax-payer to refund the taxes and pay for the improvements made on the premises and to offer to do this before he begins his action. our law taxes are glebae ascripti — serfs of the soil — a 0jjarge follows the land in whosesoever hands it may go. And if the tax sale may be invalid to divest the title of the former owner by reason of irregularities and failure of the officers properly to discharge their duties, yet the purchaser is subrogated to the lien of the State.

There is nothing in Hickman v. Kempner, 35 Ark., 505, to conflict with this view. There the tax purchaser was plaintiff, not defendant; and the cross-bill filed by the former owners was only a mode of defense. The statute does not prevent the original owner from defending his possession before tendering the taxes, &c., though even in that case he will be made to do justice. Hany v. Cole, 28 Ark., 299. Its terms only apply to cases where he is actor.

Judgment affirmed.