Doe ex dem. Davis v. Minge
56 Ala. 121
Ala.
1876
Check Treatment
BRIOKELL, C. J.

The 87th section of the revenue law of 1868 declares, that the deed of the probate judge, conveying land sold for taxes, “ shall be prima facie evidence in all the courts of this State, in all controversies and suits in relation to the rights of the purchaser, his heirs, or assigns, to the land thereby conveyed, of the following facts: 1st, that the real property conveyed was subject to taxation for the year or years stated in the deed; 2d, that the taxes were not paid at any time before the sale; 3d, that the real property conveyed had not been redeemed from the sale at the time of the deed; and that it shall be conclusive evidence of *124the following facts: 1st, that the property was listed and assessed at the time, and in the manner required by law; 2d, that the taxes were levied according to law; 3d, that the property was advertised for sale in the manner, and for the length of time required by law; 4th, that the property was sold for taxes as stated in the deed; 5th, that the grantee named in the deed was the purchaser; 6th, that the sale was conducted in the manner required by law; 7th, that all the pre-requisites of the law were complied with, by all the officers who had, or whose duty it was to have had, any part or action in any transaction relating to or affecting the title conveyed, or purporting to be conveyed by the deed, from the listing and valuation of the property, up to the execution of the deed, both inclusive; and that all things whatever, required by law to make a good and valid sale, and to vest the title in the purchaser, were done, except in regard to the three points named in this section, wherein the deed shall be prima facie evidence only.”

In Stoudenmire v. Brown, 48 Ala. 699, it was decided, that this enactment was not violative of the constitution, in declaring the deed prima facie evidence of the particular facts recited; that it was, thus far, a mere regulation of the law of evidence; but that, so far as it declared the deed conclusive evidence, it was violative of the constitution, and void. The correctness of this decision is conceded by the appellant’s counsel; and he submits that it is only the word conclusive which is offensive to the constitution, and that it may be stricken out, leaving the enactment to declare the deed evidence merely. The principle invoked is, that if some of the provisions of a statute violate the constitution, while others are consistent with it, the latter will be maintained, if they can be separated from, and stand without the unconstitutional and void parts of the law; that the courts will treat the unconstitutional parts, as if they were stricken out of the statute. — Mobile & Ohio Railroad Co. v. State, 29 Ala. 584. The principle, in its very statement, is subject to the limitation, that the constitutional and unconstitutional parts are capable of separation — that they are wholly independent of each other.-— Warren v. Mayor, &c., 2 Gray, 99; Jones v. Robins, 8 Gray, 338; State, ex rel. v. Commissioners, &c., 5 Ohio (N. S.) 506; Cooley’s Const. Lira. 176-181. When the provisions are incapable of separation- — when they are dependent on each other, the unconstitutionality of one vitiates the whole. The courts have no power to modify, reform, or amend legislative enactments, so that they wiil conform to the constitution. They must be accepted as the legislature may express them. If the legislative intent is clear, that a *125statutory provision shall be deemed and taken as an entirety — as well that which is constitutional, as that which may be unconstitutional — the whole must fail.

The enactment we are considering is an illustration. So far as it declares the tax deed prima facie evidence, its constitutionality is not assailed. — Pillow v. Roberts, 13 How. 476. Though this forms a part of the same section which declares the deed conclusive evidence, it is distinct and separate from the latter. The one makes the deed prima facie evidence of particular facts; the other makes it conclusive evidence of different facts. The two clauses do not refer to the same subject-matter, are not connected in meaning, and are indicative of different legislative intents. Let the last clause be stricken out, and the first remains, complete, and capable of execution, according to the apparent legislative intent. It has precisely the same operation and effect it would have if the latter clause had not been introduced, or if it was constitutional, and capable of operation. In the adoption of both clauses, the legislatui*e had in view the distinction between evidence subject to contradiction, yet sufficient^ of itself until met by opposing evidence, and evidence which does not admit of contradictory or opposing proof — evidence conclusive of itself. The purpose was not to make the deed merely evidence, but, in the respect we are now considering, conclusive evidence. The motive, the inducement for_ the enactment, was to cut off all inquiry into irregularities which may have preceded or attended a sale of land for the payment of taxes. The difficulty, if not the impossibility, of proving the requisites of such a sale — the strict compliance with the numerous directions and conditions of revenue laws — rendered tax titles almost valueless. To avoid the necessity of such proof, and to remove from controversy the regularity of the sale, it is manifest was the legislative intent. This intent is not capable of consummation, under the decision in Stoudenmire v. Brown, supra. "We can not say, the legislature would have made the deed merely evidence, less than prima facie evidence, of the regularity of the sale. For it must be observed, in the section we are considering, .the terms prima facie and conclusive evidence are employed in their proper, legal meaning, descriptive of different degrees of proof — the one as merely sufficient, until overcome by opposing evidence, shifting the burden of proof; the other, as indisputable, excluding all opposing evidence. There can be no separation of the words — they are dependent on each other, each essential to the accomplishment of the end proposed. If the word conclusive was stricken out, the enact*126ment would, be deprived of tlie force tbe legislature intended to give it.

3. Tbe revenue law of 1868 subjected lands to sale for tbe payment of taxes, only in tbe event personal property could not be found, after reasonable search.— Pampb. Acts, 1868, 315, §54. And it'was expressly declared, “no property shall be exempt from sale for taxes.” — lb. 314, § 53. In Scales v. Alvis, 12 Ala. 617, under similar statutory provisions, it was held, a sale of land for taxes could not be supported, if tbe delinquent bad goods and chattels within tbe county, although they were exempt from execution for tbe payment of debts. The rulings of tbe Circuit Court conformed to this decision. Proof that tbe tax-payer bad within tbe county personal property, and that tbe collector made no search for it, showed that.be was without power to sell tbe lands. Tbe law made tbe personal property primarily liable for tbe payment of tbe taxes. It was only when such property could not be found, after reasonable search, that power to sell land was conferred. Tbe personal property may have been exempt from taxation, but it was not exempt from liability for tbe payment of taxes. By tbe express words of the statute, all property was declared liable to be sold for tbe payment of taxes; and tbe order in which it could be sold was declared: primarily, personal property; when that failed, tbe lands.

Tbe rulings of tbe Circuit Court were in conformity to these views, and its judgment must-be affirmed.