116 Cal. 518 | Cal. | 1897
Writ of mandate. The Teralta Land and Water Company (a corporation), respondent herein, filed its petition, duly verified, in the superior court, in and for the county of San Diego, showing that it was the owner of certain described lands, situate in said county of San Diego, which were sold for delinquent state and county taxes duly levied for the fiscal years 1889-90, 1890-91, and 1891-92, and purchased by the state of California.
On the twenty-fifth day of September, 1895, plaintiff,
The auditor refused to furnish the estimate as demanded, upon the ground that the act of March 28, 1895, was the only statute in force relating to the redemption of real estate from sales for delinquent taxes, whether such sales took place prior to the passage of said act, or afterward.
He offered to furnish an estimate under the act of 1895, but refused to do so under any prior statute. An alternative writ of mandate issued to defendant, who came in and demurred to the petition upon grounds substantially involving the proposition that the petition or sworn statement of the plaintiff did not state facts entitling plaintiff to redeem from the sales therein mentioned under any law or laws except the statute of March 28, 1895.
The court overruled the demurrer, and defendant failing to answer, his default was entered, and the writ of mandate was made peremptory. Defendant appeals from the judgment.
Under the Political Code, section 3817, as it existed prior to 1895, where real estate was sold for delinquent taxes, and the state had become the purchaser and had not disposed of the same, the former owner or his heirs, etc., had the right to redeem by paying to the county treasurer the amount of the tax due, with interest at seven per cent per annum, together with all taxes that were a lien on the real estate at the time said taxes became delinquent; an amount equal to the percentage of all subsequent taxes, interest thereon; all costs and charges, and a penalty of twenty-five per cent, etc. It became the duty of the county auditor to furnish the person desiring to redeem an estimate of the amount necessary therefor.
The section in terms applies: “In all cases where real estate has been or may hereafter be sold for delinquent taxes to the state, and the state has not disposed of the same, the person whose estate has been or may hereafter be sold,” etc.
The sole question presented for determination is this: “Is the owner of the land entitled to make redemption obliged to pay the amount to redeem required by the act of March 28, 1895, or can he redeem by paying the amount required under the laws in force at the date of sale?
No part of the Political Code is retroactive unless expressly so declared. (Pol. Code, sec. 3.) This applies to amendments thereto equally with the original. (Central Pac. R. R. Co. v. Shackelford, 63 Cal. 261.)
That the legislature intended to make the amendment of 1895 to section 3817 retroactive is amply attested by the language used.
“A retrospective statute affecting and changing vested rights is very generally considered in this country as founded on unconstitutional principles, and consequently inoperative and void. But this doctrine is not understood to apply to remedial statutes which may be of a retrospective nature, provided they do not impair contracts or disturb vested rights, and go only to confirm rights already existing, and, in furtherance of the remedy, by curing defects and adding to the means of
Remedial statutes which are retrospective, but do not impair contracts or disturb vested rights, are not unconstitutional, and the legislature may from time to time alter, change, or modify the remedy, providing in so doing they do not affect the right; but whenever they so far alter the remedy as to impair, destroy, change, or render the right scarcely worth pursuing, they necessarily impair the obligation of the contract upon which such right is founded. (Smith v. Morse, 2 Cal. 524; Scarborough v. Dugan, 10 Cal. 305; People v. Seymour, 16 Cal. 332; 76 Am. Dec. 521; Moore v. Martin, 38 Cal. 428; Tuolumne Redemption Co. v. Sedgwick, 15 Cal. 515; Oullahan v. Sweeney, 79 Cal. 537; 12 Am. St. Rep. 172; Bates v. Gregory, 89 Cal. 387; Dentzel v. Waldie, 30 Cal. 138.)
Appellant very properly admits that “an act which impairs the obligation of a contract, or divests a vested right, is in conflict with section 10, article 1, of the federal constitution, and with section 16 of article 1 of the constitution of the state of California.”
He contends, however, that the amendment of 1895 to section 3817 of the Political Code does not impair the obligation of a contract, or divest a vested right.
His theory is that a tax duly levied has the effect of a judgment against the person, and the lien created thereby has the force and effect of an execution duly levied against all the property of the delinquent (Pol. Code, sec. 3716), and that the sale of property upon default of payment and the right of redemption as an incident thereto is a remedy, which may be changed at any time at the will of the legislature, and though retroactive will not be invalid for that reason. In support of this position and of the argument in favor thereof counsel cite Tuolumne Redemption Co. v. Sedgwick, supra; Hibernia etc. Soc. v. Hayes, 56 Cal. 303; Oullahan v. Sweeney, supra, and several other cases.
In Tuolumne Redemption Co. v. Sedgwick, supra, the
In Kerckhoff etc. Mill etc. Co. v. Olmstead, 85 Cal. 80, which was an action to foreclose a mechanic’s lien, after a portion of the materials had been furnished, the law was amended, and it was held that the amendment shortening the time for filing a lien, but which afforded an adequate remedy, was not retroactive, and applied to pending cases of uncompleted buildings.
In Oullahan v. Sweeney, supra, the court held that an amendment to the statute after a tax sale, requiring the purchaser to give notice before applying for a deed, went to the remedy only, and was applicable to cases existing at the time the law took effect.
The question here, however, is: Can the legislature» after a tax sale, lawfully amend the law so as to apply new and more onerous conditions to the right to redeem than those which existed when the sale was made? We think this question is answered in the negative by the elementary writers and by the adjudicated cases.
Cooley in his work on Constitutional Limitations, sixth edition, at page 353, says: “ So a law is void which extends the time for the redemption of lands sold on execution, or for the delinquent taxes, after the sale has been made; for in such a case the contract with the purchaser, and for which he has paid his money, is that he shall have title at the time then provided by the law; and to extend the time for redemption is to alter the substance of the contract, as much as would be the extension of the time for payment of a promissory note, so a law which shortens the time for redemption from a mortgage after a foreclosure sale has taken place is void; the rights of the party being fixed by the foreclosure and the law then in force.”
Black on Tax Titles, section 175, says: “ The right of redemption from a tax sale must be governed by the law in force at the time of sale; it cannot be affected by subsequent legislation.” He quotes from Merrill v. Dearing, 32 Minn. 479, as follows: “ The right of prop
Blackwell on Tax Titles, fifth edition, at section 729 expresses the same views in the following language: “ The law in being at the time of sale governs the right of redemption. The time can be neither lengthened nor shortened by subsequent legislation.....
The right to redeem is a condition attached to the sale, and the legislature cannot defeat it by a subsequent act. A provision affecting the period of redemption can only apply to sales after the day on which the act took effect.’’
The enforced sale of property on execution, or for the nonpayment of taxes, institutes a contract with the purchaser which cannot be materially altered without his consent. The right of the owner to redeem is perhaps, strictly speaking, one not resting in contract, but is a right vested in him under the law, a right pertaining to the contract itself, and which in reason and justice is not more open to attack than that of the purchaser.
It has been said in a few of the many cases on the subject that so far as the right to redeem is concerned, it is not derived from any contract but is given by the law only, and the time within which it may be exercised may be shortened by the legislature, provided a reasonable time is left within which to exercise it, without impairing the obligation of the contract.
Here an additional burden is cast upon the redemptioner, whereby his right to redeem is subjected to the payment of a sum of money greatly in excess of that required of him under the statute which conferred the right upon him.
To require a party to perform an act at a time different from that required by a former statute, is a difference only in point of time, and may be said to affect the remedy only, but to require him to pay a sum of money greatly in excess of that required by a former statute is to impose upon him a burden having no relation to the remedy.
In Hillebert v. Porter, 28 Minn. 496, it was held that a law which increased the rate of interest to be paid on redemption of a pre-existing mortgage could not be upheld.
What the state could sell under the tax sale was limited by what the purchaser could purchase, and that was the right to have the title subject to the owner’s right to redeem upon the payment of a given sum of money at any time before the state parted with its interest in the property. This right of redemption became a condition of the contract of purchase, and could not in reason or justice be ignored or changed by a subsequent statute any more than the sale itself. It was an essential element of the contract of sale, and not a mere naked right to be changed or abridged as a mere matter of public policy. Though intimately connected with the remedy it was not a part of the remedy, but a substantive right preserved to the redemptioner, and equally sacred with those acquired by the purchaser, which latter rights it limited. It was a right of property remaining in the former owner after the exhaustion of the remedy by sale, and the statute which, passed after the sale, seeks to impair this right by adding new burdens to its exercise, is violative of constitutional guarantees.
Britt, C., and Belcher, C., concurred.
For the reasons given in the forgoing opinion the judgment appealed from is affirmed.
Van Fleet, J., Harrison, J.
McFarland, J., Henshaw, J., Garoutte, J.