Peterson v. Kittredge

65 Miss. 33 | Miss. | 1887

Lead Opinion

Arnold, J.,

delivered the opinion of the court.

Under our statute on the subject, the setting aside of a decree pro eonfesso, after it has been duly taken, is not a matter of mere discre*38tion in the court. It cannot be properly done without good cause shown. Code, § 1889. But § 1895 of the code authorizes bills of exception in the Chancery Court in the same manner as in the Circuit Court, whenever it may be necessary to make any matter a part of the record in a cause, and in the absence of a bill of exceptions showing upon what grounds the decree pro eonfesso was vacated, we must presume that the action of the Chancellor was right, and that the good cause required by the statute was shown. Bryant v. Rosenbaum, 62 Miss. 191.

If it be true that appellees failed to show title to or interest in the land, it cannot avail appellant. He challenged consideration of and objection to his title, and asked the court to approve and confirm it, and having failed to show title in himself, it is not material to his rights whether the claim of his adversaries was perfect or not. Code, § 578 ; Meeks v. Whatley, 48 Miss. 337.

If the decision in Beck v. Allen, 58 Miss. 143, is adhered to, it ' is decisive of the principal issue in this case. The general Act of 1875 imposed a limitation on the amount of taxes which should be levied by boards of supervisors. The local Act of 1872, which authorized Leflore County to issue certain bonds to Carroll County, and to levy special taxes for their payment, was not repealed or affected by the general act to which reference has been made. The local act conferred power on the board of supervisors of Leflore County to lay special taxes for the purposes therein named in addition to, and independent of, the general limit declared by the Act of 1875. Besides, the special taxes, under the Act of 1872, were intended as security for the bonds therein authorized, and the levy and collection of these taxes was a part of the obligation of the contract in regard to the bonds which could not be subsequently impaired by the Legislature.

The taxes levied in Leflore county for the year 1875, and for which the land in question was sold, including the special taxes for bridges and jail, and excluding the taxes for Carroll County bonds, when added to the State and school taxes, exceeded the limit .fixed by the Act of 1875. The decision in Beck v. Allen, supra, holds, that when the Legislature limits the amount of *39taxes that may be levied, special taxes for jails, bridges,- &c., are embraced in the restriction, and are to be counted in the amount that may be lawfully levied, notwithstanding § 16, article 12, of the Constitution, and that if the amount levied is increased by such special taxes so as to exceed the limit prescribed by the Legislature, the levy is without authority of law. The law established by Beck v. Allen, is a salutary one, and if there is an error in the construction which' the majority of the court placed in that decision on § 16, article 12, of the Constitution, it is not so apparent as to enable us to assert it with confidence. The decision was rendered several years ago, after careful and deliberate consideration, and we are not willing to disturb it or to renew the discussion of a subject which was exhausted in opinions -delivered by each and all the judges of the court.

A part of the taxes for which the land was sold being illegal, the sale was void and conferred no title, and the extent of appellant’s right was a lien on the land, which was recognized and enforced in the court below, for the amount paid to the State for the land and for subsequent taxes, interest and damages. Capital State Bank v. Lewis, 64 Miss. 727.

A sale for taxes is a proceeding in invitum as to the taxpayer whose property is sold, and the doctrine pressed upon our consideration, from Olcott v. The Supervisors, 16 Wall. 678, and Douglass v. Pike County, 101 U. S. 677, and kindred cases, that if a contract when made is valid under the Constitution and laws of a State, as previously expounded by its judicial tribunals, and as they were understood at the time, no subsequent action by the Legislature or judiciary can invalidate or impair its obligation, has no application to the case at bar, where appellant is seeking, not to recover on a contract to which appellees are parties, but to deprive them of land by virtue of a tax sale.

Affirmed.





Dissenting Opinion

Campbell, J.,

delivered the following dissent.

I dissent from the decision just announced, and adhere to the views expressed by me in Beck v. Allen, in the correctness of which *40time has but confirmed me. It is apparent from the opinion just read that the decision in the case cited on the point as to which I dissented, does not commend itself as correct to either of my brethren, and yet the strange spectacle is presented of acquiescence in, and adherence to, an erroneous interpretation of the Constitution by judges who feel that it is erroneous and shrink from saying so. It is probably the only instance of a repeal of a provision of the fundamental law by the mere inclination of one judge to the view that two decisions of the court of which he was a part were wrong. This is the way the matter stands. The provision of the Constitution had been passed on and interpreted by a unanimous court in two cases. In Beck v. Allen one judge favored overruling those decisions, another opposed it, and the third saying he inclined “ to the opinion that the former construction was erroneous, though the matter is not free from doubt,” united with the judge who favored overruling the former decisions, and thus the inclination of this judge to doubt their correctness overruled two solemn adjudications of the court in which he participated and concurred when made, and thereby abrogated that part of the Constitution, for the view of the majority makes it mean nothing whatever, and virtually strikes it out, while mine gives effect to its plain language and purpose.

My brother Arnold says the rule announced in Beck v. Allen is a salutary one. This I deny, and confidently affirm that the people of each county who are to pay for the convenience are the better judges of the scale of expenditure to be made, and know best what ■they should have and are able and willing to pay for, and I stand for decentralization and local government as far as may he. Were the rule a salutary one, that would not justify abrogation of the Constitution by judicial enactment under pretence of interpretation. Beck v. Allen was wrongly decided, and time can never make it right. It had the disastrous effect of causing the annulment of many sales of land made on the faith of former correct decisions of this court, and to overrule it would but establish what was most erroneously undone by that unwarrantable and unmaintainable decision in which sound rules of constitutional interpretation were made to yield to supposed expediency.