Shotwell v. Louisville, New Orleans & Texas Railway Co.

| Miss. | Oct 15, 1891

Campbell, C. J.,

delivered the opinion of the court.

The title acquired by the levee board of district No. 1, by the sale for taxes on January 11,1872, and the conveyance in pursuance thereof, was a valid one as averred by the bill and maintained by the evidence. This title was vested in the state by virtue of the thirteenth section of “An act to abolish the office of liquidating levee commissioner,” etc., approved April 11, 1876. Laws, p. '166. The state had the right to abolish the levee board of district No. 1, as it did by the act for that purpose, approved April 11, 1876 (Laws, p. 174), and to substitute, as that act does, the auditor and treasurer for commissioners, secretary and treasurer of the levee board, and to substitute the collector of state and county taxes for the collector of levee district No. 1. The acts mentioned are to be construed together, as if they were one. Although the last-mentioned act was specifically to abolish the levee board and substitute other officers for those formerly existing, and continue the operations of the act of 1871, which created the levee district No. 1, for the purpose of paying the debts of said board, the first act mentioned deals with lands held then by the levee board of district No. 1, under any sale for taxes, and provides for their redemption at any time prior to November 1,1876, and, if not redeemed, for their sale by the auditor of public accounts, at any time before January 1, 1878. An act approved February 1, 1877 (Laws, p. 22), extended the time for redemption one year; and, by an act, entitled “An act to extend certain provisions of an act, entitled ‘An act to abolish the office,’ ” etc. (the act first named in this opinion); approved March 1, 1878 (Laws, p. 241), all the lands mentioned in said act were declared salable to any person, upon the terms named in certain seetions of the act, by the officer authorized to sell, who was the auditor of public accounts; and, when the twelve years for which taxes were levied on lands in levee district No. 1 had expired, the act approved March 5, 1884 (Laws, p. 184), was passed, whereby the act of March 17, 1871, which created the levee board of district No. 1, was repealed, the district abolished, and the arrangement, by the act of April 11,1876, whereby the auditor and treasurer were substituted for the formerly existing board of commissioners, was swept away forever. But, by this act the auditor, who, by the former acts mentioned, was empowered to sell the lands in district No. 1, which were held April 11, 1876, by the board of that district, was authorized to receive in payment for such lands sold by him (or redeemed) the bonds and coupons of said former levee board, to the extent of levee taxes then due and unpaid to March 17, 1888. , It is thus seen that, on March 17, 1871, the legislature created levee district No. 1, and provided for a board of commissioners, a secretary, treasurer, engineer and collector of taxes; and the act levied taxes on. all lands embraced, and provided for their collection, and for their sale for non-payment, and for them to be sold and conveyed to the treasurer of the board for its use, if not purchased by some one who should bid the assessment due and fifteen per cent, damages and costs. The right to redeem in two years was secured. Power to sell at private sale, at a fixed price, was given to the treasurer of the levee boai’d, and, if not sold by the treasurer or redeemed as provided, the lands were to vest in the treasurer, and become a part of said levee fund, and be sold “as said board of levee commissioners may order.” See § IS of said act. By § 24 of the act it is declared that state and county taxes on lands purchased by the treasurer of the levee board were not remitted or released, but only suspended as to collection, while the lands should be held as assets of said board. So the board held the land thus acquired, burdened with state and county taxes assessed upon' them when acquired or afterwards, which were to be accounted for by said board, when the lands were purchased or redeemed.

The board of commissioners provided for was authorized to incur debts, and, specifically, to issue one million of dollars of bonds, and, for the payment of these bonds and other liabilities incurred, the charges and assessments fixed, levied and made as aforesaid by the eighth section of the act (a specific tax on every acre of land) were “ constituted a special fund and trust” for such payment; and said charges and assessments were declared not to be “ subject to repeal, alteration or suspension during the time for which they are fixed, levied and made as aforesaid, until all the bonds, obligations and liabilities of said board shall be first paid; ” and the right was given to the holder of any bond or obligation of said board, after it was due, to apply for mandamus or appointment of special commissioners to collect the charges and assessments imposed by the act on the lands. The fund specifically pledged to creditors of the board consisted of the tax imposed on land by the act, and that was declared not subject to repeal, alteration or suspension, as against creditors. That was their security, and the collection and application of money from that source was the remedy provided for them. These taxes were levied annually for twelve years, commencing with the date of the act, March 17, 1871, and during that period they were to be available for creditors beyond the power of “ repeal, alteration, or suspension,” until all liabilities of the board should be discharged.

It is true that land struck off to the treasurer at a sale for taxes due the levee board, and not redeemed, was declared in § 13 to be a part of the levee fund, and subject to sale as the board should order; but this was not pledged to creditors, as were the taxes, and there was no declaration that the provision on this subject was irrepealable, and it was repealable by the legislature at pleasure, by virtue of the right of repeal of any charter, reserved to the legislature by the last sentence of art. 5, p. 292, of the code of 1857, then in force. Not only were these lands vested in the levee board by purchase for taxes when no other person would bid the sum due, not specifically devoted to the claims of creditors, for whom a different security was provided, as seen, but they were to be held by the hoard, charged with state and county taxes, to be accounted for by the board, with interest, when purchased or redeemed, which renders it quite certain that creditors could not regard this provision as of value to them, as probably it was not, for there is no reason to believe that there could be realized from this source any thing beyond the levee taxes imposed. The lands were redeemable upon payment of the taxes, damages and cost, and the levee treasurer was authorized to sell, if he could get the cost, to the board, with accruing taxes, costs and ten per cent, per annum, and the board, after the time for redemption, might sell for less, but was accountable for state and county taxes.

From all this, it is apparent that the provision for vesting the lauds purchased for taxes in the board was simply ás a means to secure the “ charges and assessments ” imposed by the eighth section of the act, which constituted a “ trust-fund” for creditors. That could not be impaired ; but it was competent for the state to change the officials to administer the trust, and to divest the title of the lands as to the levee board and vest it in itself, in the way in which it was done by the thirteenth section of the act of April 11, 1876, cited above.

Not only was the action of the legislature in dealing with the levee board of district No. 1, and lands held by it, authorized by its power to repeal, and, of course, to modify the act of 1871, except wherein it was declared not subject to repeal or alteration, but it did no wrong to creditors by this exercise of its power. It had due regard to the rights of creditors, and provided for them in every act on the subject. It did more in that respect than it was called on to do, or, perhaps, should have done. By the act of April 11, 1876, the bonds and coupons of said levee board were made receivable for state and county taxes for certain years from persons redeeming or purchasing these lands held for taxes in levee district No. 1; and this provision was continued by the act of February 1, 1877, already mentioned, by which the right of redemption was extended another year on the same terms; and the apt of March 11, 1878, above mentioned, continued the “terms and conditions” of the act of April 11, 1876, as to the use of the bonds and coupons of levee district No. 1 in the purchase of these lands. Thus, the state surrendered its claim, and consented to the payment of state and county taxes, as well as levee taxes on these lands, in the bonds and coupons of this levee district, in the effort to induce their redemption or purchase. This was a valuable contribution by the state to the holders of such bonds or coupons, and was calculated to enhance their value greatly by an increased demand for the redemption or purchase of these lands,, using them to pay state and county taxes, for which, but for this act of grace on the part of the state, money would have been required.

. It is true that, by the act of March 5,1884, after the expiration of the twelve years of the anuual taxes prescribed by the act of March 17, 1871, the levee district No. 1, and all that pertained to-it, as far as could be, was abolished; but the power of the auditor, as the official and representative of the state, to sell and convey the lands which had been sold for taxes in the levee district No. 1, conferred by the former acts mentioned, Was not affected, and the rights of creditors of the district were respected and preserved, by making the bonds and coupons receivable in the redemption or purchase of the lands before sold for No. 1 levee taxes, to the extent of the unpaid levee taxes. This view completely vindicates the state from the charge of disregarding the rights of creditors in its dealing with levee district No. 1 and its assets, and shows not only a scrupulously just regard for the rights of creditors, but a spirit of liberality and generosity at the expense of the state and county treasuries.

It is true that, by the thirteenth section of the act of April 11,1876, it is declared that if the lands were neither redeemed nor purchased on the just and liberal terms offered, within the years allowed for that, the title should be vested in the state, but it was to hold them subject to the charge of all levee taxes due or to accrue, and these taxes were still a charge on the lands, binding them in the hands of the state or its donee or grantee. The suspension of levee taxes by this section meant no more than that the lands should not be sold for the levee taxes while held by the state. They were not salable by the tax-collectors while held by the levee board, and the auditor was empowered to sell them, taking bonds and coupons even for state and county taxes for certain years. There was nothing in this for creditors to complain of. No wrong was done them. Their claims were receivable in the redemption or purchase of the lands, not only to the extent of their claim on the lands, but even for state and county taxes for the years specified, which was so much given by the state to the creditors of levee district No. 1.

The vesting, title in the state did no harm to. creditors. The levee board was abolished, and the state assumed the management of the trust-fund for creditors, employing its officials for that purpose. As the state had the right to repeal or modify the act of March 17, 1871, except as to the charges and assessments declared by it irrepealable, it could lawfully vest title of the lands as it saw fit, being careful, as it was, to preserve fully the guaranteed rights of creditors.

The state had title to the lauds embraced in this suit, acquired as stated, and conveyed its title to the defendant railway company, by deeds of the auditor, under the act entitled “An act to quiet and settle the title to certain lands,” etc., approved March 2, 1888, Laws, p. 40. Having conveyed the lands, the state had no title when the conveyance was made by the auditor to the complainants, and they took nothing by that conveyance. The levee board of district No. 1, having acquired a perfect title by the sale of January 11, 1872, and that being vested in the defendant before the purchase by complainants of the state, the defendants’ title is unassailable in this proceeding.

We have demonstrated the validity and propriety of the legislation on this subject, as against all complaint by creditors; but really the complainants in this suit are not in a position to assail the legislation. They are not creditors, and do not come in that character. They claim as purchasers of the land, and as having acquired the title of the state, which rests, for its validity, on the very legislation which is so vigorously assailed by their counsel. If the state had no title, complainants acquired none. The title of the lands claimed by them' was, as they show, in the levee board of district No. 1, by the sale of January 11, 1872. The only claim of complainants to this title is through the state. But if the dealing by the state, in the several acts reviewed, was unconstitutional and invalid, it had no title to convey. No distinction can be made in this respect between the act of March 5,1884, and the other’s on this subject; for it is by virtue of the former laws that the title was in the state and the auditor was empowered to sell and convey these lands. All that the third section of the act of March 5, 1884, did was to preserve the receivability of bonds and coupons of levee district No. 1, in the redemption or purchase of the lands, as far as levee taxes were due on them.

Affirmed.