| N.C. | May 9, 1899
Dissenting Opinion
dissenting. The Courts have no public policy to declare or enforce. This lies outside of their province. It is for the Legislature, ..the law making power, to define and declare the public policy and when this is clear, whether it may seem a hardship, or beneficial, it is equally the duty of the Courts to declare the law as written. If of doubtful meaning, it is the duty of the Courts to construe it in accord with the settled public policy as deduced from this and similar legislation, or to consider the evil to be remedied, and other like aids, in the endeavor to get at the true meaning of the Act.
The taxing power is essential to the existence of government and justice requires not only that the taxes shall be laid on all “by a uniform rule and ad valorem;” (Const. Art. Y, Section 3), but that they shall be collected from all, for if any property escapes payment of taxes, the property of others, who have already paid their share, must make good the default of those who evade payment. Formerly the holder of a tax deed had to prove the regularity of the many steps leading up to it, with the result as a decision of the Supreme Court stated just before the tax reform Act of 1887 became law, that no tax deed had till then ever been sustained in this Court. As a consequence no one scarcely would purchase at a'tax sale and the Counties who bought in
The present is a rehearing of this case decided by a per curiam, 123 N.C., 769" court="N.C." date_filed="1898-10-12" href="https://app.midpage.ai/document/martin-v-jones-6694008?utm_source=webapp" opinion_id="6694008">123 N. C., 769, upon the authority of Wilcox v. Leach, 123 N.C., 74" court="N.C." date_filed="1898-11-01" href="https://app.midpage.ai/document/wilcox-v--leach-3645774?utm_source=webapp" opinion_id="3645774">123 N. C., 74, and therefore in effect is a rehearing as to the grounds of the opinion in the latter case, which went off upon the point that the word “may” in Section 90, Chapter 119, Laws 1895, giving to the County Commissioners the right to foreclose upon a tax certificate, must be
In view of the very plainly expressed policy in the statutes which have been almost identical since the first enacted Chapter 237, Laws 1887, and the repeated decisions of this Court upon it, this seems like looking back to the “pit from which we have been digged.” Not only the word “may” shows that foreclosure was an optional procedure, but the other provisions of the statute confirm that view.
1. The County is authorized to “purchase” just as any one else. Section 85. It is held that even independent of any expressed provisions of the statute, the Government has the same right to purchase as any one else and, if so, of course it would get exactly the same rights as any other purchaser. De Treville v. Smalls, 98 U.S., 517" court="SCOTUS" date_filed="1879-01-20" href="https://app.midpage.ai/document/de-treville-v-smalls-89898?utm_source=webapp" opinion_id="89898">98 U. S., 517; Cooley v. O'Connor, 12 Wallace, 391; Douthett v. Kettle, 104 Ill., 356" court="Ill." date_filed="1882-09-28" href="https://app.midpage.ai/document/douthett-v-kettle-6961792?utm_source=webapp" opinion_id="6961792">104 Ill., 356. In the the first of these cases, Mr. Justice Strong speaking of the effect of a purchase by the Government at a tax sale says (p. 522) : “If the United States became the purchaser at the Commissioner’s sale it was only to obtain the taxes by a resale, and such a resale, resting as it must have done upon the original sale made by the Commissioners, needed the encouragement and support of a Commissioner’s certificate equally with a purchase by a bidder. It is not therefore to be admitted that the statute intended to put the United States in any worse condition than that occupied by any other successful bidder,” and adds that the argument to the contrary “is plausi
2. Section 85 (Chapter 119, Laws 1895), not only gives the County the same right to purchase as any one else, but authorizes it to receive and assign certificates of purchase. It must be that its assignee stands in the same plight as the assignee from any other purchaser, for the certificate issued to the County is identical with that issued to any other purchaser, and its wording is prescribed in Section 57 and provides, after the recital of sale and purchase, the following, “And I further certify that unless redemption is made of said estate in the manner provided by law, the said (here insert name of purchaser) heirs or assigns will be entitled to a deed
3. It would be a serious discrimination against Counties, which are often the only purchasers, to restrict them to a foreclosure. Frequently the taxes range from $1.00 or less to $20.00, and to require the County to go to an expense probably of $20.00 in each such case, to foreclose, after waiting a year for the taxes, will result simply in exempting all lands not paying large amounts from taxation, unless the owners volunteer to pay, for they know that the County will not spend $20 to collect any except large amounts.
4. This construction would put the County in a worse condition after the sale than before. It has already before the sale a lien and execution, and by this construction, after the purchase, it has only a bare right to bring an action of foreclosure. The County starts in with an execution and winds up with a bare right to bring suit.
The law governing tax sales is as liberal as is consistent with the needs of the public treasury and the duty of every citizen to pay his share of the public burdens. Every taxpayer has the same time in which to pay his taxes. If not paid, and after every reasonable indulgence (which is usually liberal) there is public advertisement and public sale. Even after that, twelve months are allowed in which to redeem the land. And even then, since it might still be possible in some cases that the failure to pay is inadvertent and not intentional, the statute requires that the purchaser shall give the defaulting taxpayer a written or printed notice before applying for his deed. This provision was in the original Act of 1887, Chapter 137, Sections 69 and 82, but having been dropped out for some reason was reinstated in the- statute upon the suggestion of this Court made in Sanders v. Earf, 118 N.C., 275" court="N.C." date_filed="1896-02-05" href="https://app.midpage.ai/document/w-m-sanders-v-john-earp-3672692?utm_source=webapp" opinion_id="3672692">118 N. C., 275.
A cotemporaneous legislative construction is always of value when the object is to ascertain the legislative will. The General Assembly of 1899 has put in Section 87 (which is Section 85 of the Act of 1895) an express provision that the certificate shall issue to the County in the form prescribed in Section 57 — though that is plainly so under the Act of 1895 which prescribed that form for all purchasers — but the express provision now is not only a legislative construction, but was probably intended to cut off future discussion as to the rights of assignees from a County, as the form there provided is (as now) a contract that the holder of the certificate or his assignee “shall be entitled to a deed” if the tax defaulter does not redeem his land within twelve months.
By the express terms of the law, the defendant is debarred from contesting the plaintiff’s right, for Section 66 provides that he can not do so unless he first shows that “all taxes due upon the property have been paid by them, or the persons under whom they claim title.” The defendant has not offered to do this; on the contrary this land has been sold several times for successive failures to pay. In Moore v. Bird, 118 N.C., 688" court="N.C." date_filed="1896-02-05" href="https://app.midpage.ai/document/moore-v--byrd-3670677?utm_source=webapp" opinion_id="3670677">118 N. C., 688, this Court said in construing the above
When tbe certificate of tbe former opinion of this Court' went down, tbe judgment below was entered in accordance therewith, it being first shown to plaintiff’s counsel and tbe costs paid by plaintiff as therein decreed. Tbe defendant contends that this estops tbe plaintiff from this rehearing. But be could not prevent tbe judgment being entered below, and could only object if not drawn in accordance with tbe mandate,for which purpose it was submitted to bis inspection. Tbe rule of Oourt, 53, requires as a condition precedent to a rehearing that tbe judgment “must be performed or secured.” Being only for costs, tbe petitioner performed it by paying tbe costs instead of giving security. Instead of being estopped be bas only done what tbe rule of court requires as an indispensable prerequisite to a rehearing.
As tbe only object of tbe Oourts is to ascertain tbe legislative will and construe tbe statute to effectuate it, it would seem that this can only be done by adjudging that tbe plaintiff, assignee of a Oounty certificate bad the same right as an assignee from any other purchaser to take a deed or foreclose at his election, that even if only a mortgagee, be can recover possession from tbe defendant in that capacity, and that tbe defendant can not be beard as be does not aver that be bas yet paid the taxes.
But if tbe above conclusions were incorrect and tbe plaintiff were only entitled to foreclose, all tbe parties and all tbe facts are before tbe Oourt, and upon all tbe principles of Tbe Code it was error to render a judgment against tbe plaintiff
Concurrence Opinion
concurring. This is a petition to rehear and as the opinion in this case is a per curiam, based on Wilcox v. Leach, 123 N. C., 74, it is in fact a petition to have the opinion in Wilcox v. Leach reviewed.
Notwithstanding the severe criticisms made upon the opinion in that case i nthe arguments a tthis term, of probably a half dozen cases, it still seems to me that the opinion in that case is based on sound principles; is a just and proper construction of the statute of 1895, and should be sustained. We were told that this Court can have no policy — that its duty is to construe the law as it finds it and leave matters of policy to the Legislature. I agree with these suggestions. But it is somewhat singular that after these suggestions the greater part of the argument of the petitioner was taken up in discussing the policy to be pursued in collecting taxes to meet the demands of the Government; how difficult it was to collect them before the statute of 1887; how the payment of taxes was evaded; what a burden this was- on the honest taxpayers; that this decision was going back to the old policy, and that
We are told that Stanley v. Baird, 118 N. C., involved the same question that is presented in this case, and it seems that this question was presented by the record in that case; but it was not called to the consideration of the Court nor was it considered in passing on that case, as every member of this Court well remembers.
But as I have said, to my mind the opinion in Wilcox v. Leach rests on sound and correct principles. The County Commissioners are not the owners of the lands nor of the taxes due from the defendant; they are simply the agents and trustees of the Counties to whom the taxes are due. To secure the payment of these taxes they have a lien on the lands
Herein lies the distinction between a third person becoming the purchaser and the Commissioners who simply direct the crier to bid in the land if it does not bring enough to pay the taxes for which it is being sold — that is if it does not pay the mortgage debt.
When Wilcox v. Leach was decided at the last term of this Court, it received the approval of every member of this Court, and in my opinion it was correctlv decided and should stand.
Lead Opinion
The petition to rehear is dismissed. We see no reason to change the opinion of this Court delivered in the case at the September Term, 1898.