49 So. 264 | Miss. | 1909
delivered tlie opinion of tlie court.
This suit was begun in tbe chancery court of Scott county, and is called a proceeding to specifically perform a contract. A demurrer was filed to tbe bill of complaint, and overruled by tbe ■chancellor, and tbe cause appealed here.
As a bill for specific performance this proceeding is a novelty; but, since it seems to have been the purpose of tbe litigating parties to invite tbe court to pass upon tbe constitutionality of chapter 121, p. 130, of tbe Laws of 1908, and tbe questions raised by tlie demurrer are wholly addressed to tbe validity of the above act, we confine ourselves to this question, since tbe appellant states that be is willing to comply with the so-called contract for tbe purchase of tbe property in question if tbe appellee can make title. In short, all questions are eliminated save that of tbe constitutionality of tbe above act. There is no fact alleged in tbe bill of complaint which would make void tbe tax of July 6, 1868, even when confessed on demurrer,, as a tax title is never presumed invalid as a matter of law, when once a sale for taxes is shown, unless tbe facts alleged, when taken as true, show tbe invalidity. Tbe allegation that tbe sale of tbe land for tbe taxes 1868 was void, because “it appears only in tbe obsolete records, and was not brought forward under tbe abatement act, or tbe act •of 1880 [Acts 1880, p. 88, c. 9] or 1890 [Acts 1890, p. 16, <3. 5], requiring compilation of lands claimed to be held by tbe state,” would not warrant a bolding that tbe tax title was void, even when confessed by demurrer, as those acts did not in any way cancel tax sales which were not listed in compliance with tbe acts, unless such lands were omitted by and with tbe advice ■of tbe attorney-general, as required in section 2 of tbe act of 1880, and the bill does not so allege. Unless chapter 121, p. 130, of tbe Acts of T908, can be upheld as constitutional, as (constitutional, it is plain that this demurrer should have been sustained.
Counsel fox appellee concede that this act constitutes a grant
But-, if this were not truei, the statute violates section 95 of the Constitution, as it is a donation of lands “belonging to> or under the control of the state/’ within the meaning of section 95 of the Constitution. Section 2 of the act also violates both sections of the Constitution above quoted, since it mates a grant or donation of lands belonging to the state to particular individuals or persons. Under no provision of the statute in question is the land which the statute attempts to deal with open to- acquirement of all persons; but it can only be acquired by certain persons named in the act, and the act makes the grant to them to the exclusion of all other persons. Because the act requires the persons to whom the grant is made to pay $2.50 for the issuance of the patent to them, this does not in any way help the act so far as its validity is concerned. The very idea underlying the provisions of the Constitution above quoted is that the whole public shall have the right to share in acquiring any public lands, and no particular person or corporation can be given this exclusive right, no matter what may be the amount required to be paid as a considration for the exclusive power to purchase.' The uneonstitutionality of, this act cannot be seriously questioned.
Reversed, and hill dismissed.