24 Kan. 486 | Kan. | 1880
The opinion of the court was delivered by
In the year 1859 the United States issued a patent to Benoni Pritchard for the south one-half of the north one-half of the southwest one-fourth of section 12, township 22, range 11, the land being in Greenwood county, Kansas, and being the land in controversy in this action. On the 15th day of January, 1870, said Benoni Pritchard and-
It is not alleged in the petition, nor is it anywhere disclosed in the record, that the taxes charged up against this land were illegal in any respect, or that plaintiff had ever paid the same, or made any tender of them to the county or defendant. The case comes before us upon the claim that the statute referred to is illegal, and that the proceedings under it gave no sort of title or interest to defendant. Let us stop for a moment to consider the case in that aspect of it. Will the mere illegality of these proceedings sustain an action to quiet title as against them? In the cases of City of Lawrence v. Killam, 11 Kas. 499, and Challiss v. Comm’rs of Atchison Co., 15 Kas. 49, it was held that an injunction would not lie to restrain tax proceedings without a prior payment or tender of all legal taxes. The same doctrine was
But it may be and is said that the act under which these proceedings were had is unconstitutional; that therefore the proceedings are nullities, and the county may again attempt to collect this tax, even if tender and payment had been made to defendant, and so the plaintiff be compelled to pay twice. If this were true, then the deed would be void upon its face, would never start the statute of limitations to run, and what need would there be of this action to quiet title? Plaintiff being in possession, no action is necessary to protect his possession, and proceedings under an unconstitutional and void statute will never of themselves ripen into a title by lapse of time. It would seem that the very argument in
Is the statute, however, unconstitutional? We shall consider upon this question only the objections which are presented by counsel. We do not consider it our duty to search for defects, and the objection raised by the learned counsel is not good. They challenge the act on the ground that the proceedings under it are not due process of law. The sub'stance of the statute is this: While the ordinary process for the collection of taxes is by sale by the treasurer) this statute authorizes the county, in case of failure to collect by the ordinary process, to foreclose the tax lien by proceedings in the district court. Is not this due process of law ? Is there any constitutional requirement or inherent necessity compelling th"e collection of taxes by the single process of sale by county officers? Clearly not. The method of collection is not prescribed in the constitution, but is left to the legislative discretion ; and because one method has hitherto been adopted, is no limitation on the power to adopt another. There is no inherent vice in collecting taxes by judicial proceedings in the courts, instead of by summary process of sale by county officials. The legislature may adopt either, or both. A collection in either way is by due process of law. A tax, when duly levied, becomes a lien upon the land, which may be enforced in such manner as the legislature shall prescribe. The mere remedy is always within legislative control. A change in it disturbs no vested rights.
Again, objection is made to the proceedings in this case and the judgment rendered, on the ground principally that neither the land nor the owner was named in the title of the petition, that in the body of the petition and the judgment the land is alleged and found to be the property of another than the real owner, and also because while the owner was a resident the only notice given was by publication. Neither of these grounds of objection is well taken. The collection
We have considered the various questions presented by counsel, though the first two matters really decide the case. The judgment will be affirmed.