Summary
In Russell Inv. Corp. v. Russell, 182 So. 102, 108, we distinctly held that Chap. 196, Laws 1934, has no application to an owner in possession, whether in person or by tenant.
Summary of this case from White v. NoblinOpinion
No. 33028.
February 14, 1938.
1. TAXATION.
Though a tax sale is subject to be defeated by redemption within time and in manner prescribed by law, if there is no redemption, sale becomes valid, and title relates back to date of sale and takes precedence over any mortgage, deed, or other instrument executed by owner during period of redemption (Laws 1934, ch. 196, secs. 1, 3).
2. TAXATION.
The Legislature, in enacting statute providing that action attacking validity of tax sale of land to state must be brought within two years after land is sold or forfeited to state, intended that statute should apply to all sales theretofore made to state, regardless of whether period of redemption had expired at time of passage of statute where Legislature was confronted with problem of trying to bring back on assessment rolls for revenue-producing purposes approximately 1,300,000 acres of land which had been sold to state for delinquent taxes (Laws 1934, ch. 196, secs. 1, 3).
ON SUGGESTION OF ERROR. (Division A. June 20, 1938.) [182 So. 102. No. 33028.]1. TAXATION.
A tax sale to state was not invalid on ground that land was offered for sale by county prosecuting attorney instead of by sheriff and tax collector, since it is permissible for an officer or trustee to act through a deputy or agent in offering property for sale where such officer or trustee thereafter executes the conveyance in his own name.
2. TAXATION.
It is fundamental to jurisdiction and existence of power to sell for delinquent taxes that there shall be an assessment of the land, that land shall be subject to taxation, and that taxes thereon shall be unpaid.
3. TAXATION.
A curative law cannot cure retroactively a failure to observe constitutional requirements as to assessment, levy and sale of land for taxes.
4. CONSTITUTIONAL LAW.
The Legislature cannot compel a resort to legal proceedings by one who is already in possession and complete enjoyment of all he claims.
5. TAXATION.
In absence of constitutional limitations, if the thing wanting or which failed to be done and which constitutes the defect, irregularity or illegality in proceeding resulting in tax sale, is something necessity for which Legislature might have dispensed with by prior statute, Legislature has power to dispense with by subsequent statute, but such curative power does not exist where there has been a total departure from statutory method as to manner in which sales shall be conducted, including a failure to first offer the land in subdivisions as required by statute (Code 1930, sec. 3249; U.S.C.A. Const., art. 1, sec. 10, cl. 1).
6. CONSTITUTIONAL LAW. Taxation.
The rights of all parties to contract of sale for taxes are fixed and governed by statute under which sale is made and such rights cannot thereafter be substantially impaired under Federal Constitution (U.S.C.A. Const., art. 1, sec. 10, cl. 1).
7. TAXATION.
Statute providing that action attacking validity of tax sale of land to state must be brought within two years after land is sold or forfeited to state, does not cure or validate defects, irregularities and illegalities in assessment, levy and sale of land for taxes, but is purely a statute of limitation and does not take away any vested rights but fixes a reasonable period of time in which they may be asserted and leaves former owner the right to sue and have sale declared void because of such defects, irregularities and illegalities (Laws 1934, ch. 196; U.S.C.A. Const., art. 1, sec 10, cl. 1).
8. CONSTITUTIONAL LAW.
Constitutional provision prohibiting the enactment of law impairing obligation of contracts is not violated by a statute, where rights existing thereunder are neither taken away nor diminished, and where reasonable time is provided in which they may be enforced after its enactment (U.S.C.A. Const., art. 1, sec. 10, cl. 1).
9. CONSTITUTIONAL LAW.
Statute providing that action attacking validity of tax sale of land to state must be brought within two years after land is sold or forfeited to state is not unconstitutional as impairing obligation of contract, since statute reserves to taxpayer full period of two years after its passage in which to assert any defect, irregularity or illegality in assessment, levy and sale (Laws 1934, ch. 196; U.S.C.A. Const., art. 1, sec. 10 cl. 1).
10. CONSTITUTIONAL LAW.
The question of classification is primarily for Legislature and can never become a judicial question except for purpose of determining whether legislative action is clearly unreasonable, and when classification is called in question, if any state of facts reasonably can be conceived that would sustain it, existence of that state of facts at time law was enacted must be assumed and courts cannot require the Legislature to specify its reasons for classification, but will always presume that Legislature acted on legitimate grounds of distinction, if such grounds exist.
11. CONSTITUTIONAL LAW.
One who assails classification in a statute must carry the burden of showing that it does not rest on any reasonable basis.
12. CONSTITUTIONAL LAW.
It is presumed that Legislature in making discriminations in classifications in statutes bases them on adequate grounds (U.S.C.A. Const., Amend. 14, sec. 1).
13. CONSTITUTIONAL LAW.
In determining whether statutes enacted by Legislature transcend limits imposed by Federal and State Constitutions, courts should proceed with greatest possible caution and should never declare a statute void unless its invalidity is shown beyond reasonable doubt.
14. CONSTITUTIONAL LAW.
Courts should adopt a construction of statutes that will bring it into harmony with Constitution by restricting its application to legitimate field of legislation, whenever necessary in order to uphold its constitutionality and carry its provisions into effect.
15. CONSTITUTIONAL LAW.
Every intendment is in favor of constitutionality unless repugnancy of statute to Constitution clearly appears or is made to appear beyond reasonable doubt.
16. CONSTITUTIONAL LAW.
The propriety, wisdom and expediency of legislation is a question for Legislature and not for courts, notwithstanding particular statute under review may appear to be unwise or detrimental to best interest of state and not in accord with principles of natural justice.
17. CONSTITUTIONAL LAW.
In determining constitutionality of statute, it will be presumed that Legislature has considered effect of statute on constitutional rights of the citizen and that Legislature acted from patriotic and just motives and with a desire to promote public good.
18. CONSTITUTIONAL LAW.
Statute providing that action attacking validity of tax sale of land to state must be brought within two years after land is sold or forfeited to state and that limitation period shall not apply to land sold to state prior to January 1, 1928, is not unconstitutional on ground that classification is in violation of federal guaranty as to equal protection of the law (Laws 1934, ch. 196; U.S.C.A. Const., Amend. 14, sec. 1).
19. CONSTITUTIONAL LAW.
The alleged unconstitutionality of statute providing that action attacking validity of tax sale of land to state must be brought within two years after land is sold or forfeited to state, on ground that statute vests fee simple in state or its patentees before expiration of three-year period of redemption allowed by another statute, would not be considered until a case was presented wherein statute was sought to be applied so as to cut off an unexpired portion of period of redemption (Laws 1934, chs. 196, 383).
20. TAXATION.
As respects constitutionality of statute providing that action attacking validity of tax sale of land to state must be brought within two years after land is sold or forfeited to state, fact that statute ran concurrently with portion of period of redemption was immaterial, since its effect was not to shorten redemption period and taxpayer was authorized to institute, prior to expiration of period of limitation, a suit to cancel claim of state's patentee as a cloud on his title, whether taxpayer was in possession or not, or whether he was threatened to be disturbed in his possession (Code 1930, sec. 404; Laws 1934, ch. 196).
21. TAXATION.
Statute providing that action attacking validity of tax sale of land to state must be brought within two years after land is sold or forfeited to state, may be successfully invoked as one of limitation against any suit which seeks to challenge validity of any tax sale to the state, embraced within provisions on ground of existence of such defects, irregularities or illegalities, and particularly where effect of its application would be neither to shorten period allowed for redemption nor to divest an estate in possession (Laws 1934, ch. 196).
22. TAXATION.
Whenever it is shown that former owner of land sold to state for taxes has remained in possession thereof after sale, either in person or by tenant, then statute providing that action attacking validity of tax sale of land to state must be brought within two years after land is sold or forfeited to state does not apply and claim of title and possession of such former owner can be defeated only by proof of a valid assessment, levy and sale of land for taxes under statutes and Constitution, coupled with a failure to redeem from such sale within time allowed by law (Laws 1934, ch. 196).
23. TAXATION.
A former owner of land seeking to cancel as cloud on his title a tax sale made to state and also a subsequent patent from state to a patentee and a deed from patentee to another because of alleged defects, irregularities and illegalities in assessment, levy and sale of land for delinquent taxes, was required to allege and prove an existing title in himself, independently of any defect in title claimed by patentee's transferee or of fraud perpetrated in its procurement.
APPEAL from the chancery court of Lamar county; HON. BEN STEVENS, Chancellor.
Garraway Easterling, of Jackson, for appellant.
We submit that the court committed error in overruling the demurrer to the amended and supplemental bill, and should have sustained the demurrer and dismissed the bill of the complainant in the lower court. The demurrer raised several legal questions, but the main question that we direct the court's attention to is that the complainant, appellee herein, let his land sell for the delinquent taxes due thereon for the year of 1931, on April 4, 1932, and never made any attempt to pay the taxes or to redeem his land, but waited until November 16, 1936, nearly four years from the date of the sale of said land for the delinquent taxes, and over two years and seven months after the legislature had enacted Chapter 196 of the Laws of 1934, which placed a limitation of two years from the date of said enactment to file a bill to attack the validity of such sale, and to redeem said land and which bill went into effect April 4, 1934, and which act provided that all lands sold for taxes or forfeited to the state heretofore, the owner would have two years from the date of said enactment to recover same, as to all lands sold prior to said enactment, and two years after the redemption period as to all lands sold subsequent to said enactment.
The Legislature has a right to fix limitations and to shorten or extend the limitations already fixed.
McBride v. Burgin, 142 Miss. 859.
General and special laws of limitation are recognized as founded on sound policies, except for some feature specially obnoxious to constitutional objections.
Nash v. Fletcher, 44 Miss. 609.
The sheriff and tax collector had a right to have some one under his control and supervision to cry off this land, and when ratified by him was his act, and if this was not true, it would be de facto acts and would be legal and binding and could not be attacked in a collateral attack.
Swan v. Smith, 58 Miss. 877; Railroad Co. v. Bolling, 69 Miss. 255, 13 So. 844; Jones County Land Co. v. Fox, 120 Miss. 798, 83 So. 241.
The sheriff under authorities cited including trustees would have a right to employ agents to perform ministerial acts, and when ratified would be the acts of the sheriff or the trustee.
Johns v. Surgeant, 45 Miss. 332; Tyler v. Herrin, 57 Miss. 169, 6 So. 640; Duston v. Sharp, 70 Miss. 850, 12 So. 600.
The Legislature has the constitutional power by retroactive legislation to dispense with the necessity of observing prescribed formulas and to cure mere irregularities arising from the mere failure to observe same.
Vaughn v. Swaysie, 56 Miss. 704; Fannie v. Funches, 60 Miss. 541; Nevin v. Bailey, 62 Miss. 433; Bowman v. Row, 62 Miss. 513; Osborne v. Hide, 68 Miss. 45, 8 So. 514.
All defects, irregularities and illegalities, if any, in the assessment, levy or sale of the land was cured by the act of the Legislature of April 4, 1934, Chapter 196 of the Laws of 1934, unless such defects, irregularities and illegalities had been attacked within two years from the date of said enactment as to lands sold prior to said enactment, and a limitation in Section 3 of said act served to vest a perfect title in the state and its patentees, unless the act itself was void.
We respectfully submit that inasmuch as the appellee has had ample opportunity, under the authorities herein cited, to have paid his taxes or to have redeemed his land in the method provided by law, and having failed and neglected so to do that he was precluded from maintaining his bill to do so after the lapse of more than two years from the limitation under the act of the Legislature of April 4, 1934, Chapter 196 of the Laws of 1934, and this case should be reversed, and the demurrer sustained and the bill dismissed. A.Q. Broadus, of Purvis, for appellee.
The appellant appears to predicate his hope for reversal of this case on the ground that the bill of complaint filed by appellee could not be maintained, because it was barred by the Statute of Limitations, and in support of this, he invokes Chapter 196, Laws of 1934, contending that appellee's bill, which was filed on November 16, 1936, was barred by said statute. The Legislature of 1934 also passed Chapter 337, by virtue of which the appellee here would have had three years in which to have redeemed from said tax sale, and therefore, as we see it, the period of redemption of lands sold on April 4, 1932, was extended to April 5, 1935, then when we revert to the language employed in Chapter 196, "The owner, mortgagee, or other person interested in any land which has been heretofore, or may be hereafter sold or forfeited to the state for delinquent taxes, may bring a suit or action to cancel the title of the state, or its patentees, or to recover said land from the state, or its patentees, on account of any defect, irregularity or illegality, in the assessment, levy, or sale of such land for delinquent taxes, and within two years after the period of redemption shall have expired, as to land hereafter sold or forfeited to the state for delinquent taxes, and not thereafter," the appellee contends that the Legislature intended to extend to former owners, mortgagees, or other persons interested in lands which had been forfeited to the state for delinquent taxes, two years after the period of redemption had expired to bring suit or action to cancel the title of the state or its patentees, or to recover land from the state, or its patentees. Therefore, it is appellee's contention that this action was not only filed within the time designated by law, but he could have filed his suit any time prior to April 5, 1937.
Appellee contends that the Legislature has a right to reduce the period of limitations, but such reduction would only affect sales and contracts executed after the enactment of the statute, and appellee contends that this principle of law is to well settled to be even questioned by anyone.
By the enactment of Chapter 196, Laws of 1934, if the Legislature intended to reduce the period of limitation on all tax sales prior to that date to two years from the date of the statute on all sales to the state since 1928 tax sales, same would have been retroactive and would not have given unto the appellee equal right under the law, and would have been in violation of the State and Federal Constitution, and would have resulted in the Legislature's undertaking to take away in place of adding to the rights that the appellee had under the law prior to the enactment of the statute aforesaid.
The board of supervisors when it acts on assessments is a court of special and limited jurisdiction.
Henderson Molpus v. Gammill, 115 So. 716, 149 Miss. 576; McDevitt v. Walls, 122 So. 766, 154 Miss. 671; Gardust v. Smith, 122 So. 762, 154 Miss. 787.
The sale is void for the reason that the following jurisdictional facts are not adjudicated: (a) the assessor is not adjudicated as being present as required by Section 3163; (b) the proof of publication must be filed and minutes must so show; (c) there must be an issue of paper printed before day of appearance, and this order only adjudicates that one notice was printed.
There is no presumption of validity, all jurisdictional facts must appear on minutes.
Bd. of Suprs. of Lowndes County v. Otterly, 112 So. 466, 146 Miss. 676; Henderson Molpus Co. v. Gammill, 115 So. 716, 149 Miss. 676; Gardust v. Smith, 122 So. 762, 154 Miss. 787; McDevit v. Walls, 122 So. 766, 154 Miss. 671.
The notice required by Section 3142 is a process of court of special and limited jurisdiction.
Monroe County v. Minga, 127 Miss. 707, 90 So. 443; Bd. of Suprs., Lowndes County, v. Otterly, 112 So. 416, 146 Miss. 118; Robinson v. Bank, 115 Miss. 840, 76 So. 689; Machinery Co. v. Webster Co., 154 So. 723, 170 Miss. 601; Bank of Weir v. Attala Co., 126 So. 192, 156 Miss. 560; Henderson Molpus v. Gammill, 115 So. 716, 149 Miss. 576.
When statute substitutes some other mode of service than personal service, close compliance will be enforced of statute.
Wood v. Moran, 55 Miss. 106; Edwards v. Toomer, 14 S. M. 77; Cameron v. Whittington, 120 Miss. 595, 32 So. 311; Kerr v. Bowers, 1 S. M. 351; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; First Real Gammill Case, 115 So. 716, 149 Miss. 576.
The board can only act when proof of publication is on file with it, and this can only be shown by minutes.
Bank v. Attala Co., 126 So. 192, 156 Miss. 560; Robinson Land Lbr. Co. v. Robertson, 126 Miss. 535, 89 So. 160; Machinery Co. v. Webster Co., 154 So. 723, 170 Miss. 601; Equipment Co. v. Dunlap, 160 So. 734, 172 Miss. 752; Oliver v. Bair, 90 Miss. 719, 44 So. 35; Bd. of Suprs., Lowndes County, v. Otterly, 112 So. 466, 146 Miss. 118; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; McDevitt v. Walls, 122 So. 766, 154 Miss. 671.
Even when the notice is actually given, as required by statute, where jurisdictional facts do not appear on minutes, the assessment is void.
Henderson Molpus Co. v. Gammill, 115 So. 716, 149 Miss. 576; Gordon v. Smith, 122 So. 762, 154 Miss. 787.
Where the notice is not shown properly on minutes, tax sale is void.
Henderson Molpus v. Gammill, 115 So. 716, 149 Miss. 576; Bd. of Suprs., Lowndes County, v. Otterly, 146 Miss. 118, 112 So. 466; Smyth v. Whitehead, 133 Miss. 184, 97 So. 529; Robinson v. Bank, 115 Miss. 840, 76 So. 689; Robb v. Telegraph Co., 104 Miss. 165, 61 So. 170; Hinton v. Perry Co., 84 Miss. 536, 36 So. 565; Marks v. McElroy, 67 Miss. 545, 7 So. 408; Gordon v. Smith, 122 So. 762, 154 Miss. 787; Aden v. Bd. of Suprs., 142 Miss. 696, 107 So. 753; Monroe County v. Minga, 127 Miss. 702, 90 So. 443; Henry v. Suprs., 111 Miss. 434, 71 So. 742; Adams v. Bank, 103 Miss. 744, 60 So. 770; Bolivar Co. v. Coleman, 71 Miss. 836, 15 So. 107.
Appellee's bill charges, and the demurrer confesses that the sale of lands in question were offered for sale and undertaken to be sold by L.C. Bridges, county prosecuting attorney of Lamar County, who was neither sheriff and tax collector of Lamar County, nor deputy, and who being precluded under the Constitution from acting or performing an official act in the executive department of the state and county government, could not have been special deputy.
State v. Nicholas, 106 Miss. 419, 63 So. 1025; Boutwell v. Grayson, 118 Miss. 80, 79 So. 61.
It is the contention of the appellee that since Mr. Bridges was prohibited under the Constitution from performing any act or the acts of the sheriff, pretending to act by and through him as special deputy was null and void.
A.Q. Broadus, of Purvis, and Green, Green Jackson, of Jackson, for appellee on Suggestion of Error.
The decision as herein rendered by this court depriving appellee of his home, directly overruled, without citation, Dingey v. Paxton, 60 Miss. 1038, and the cases following and applying it.
Dingey v. Paxton, 60 Miss. 1038; Act of April 11, 1876; Chapter 196, Laws of 1934; Lbr. Co. v. State, 97 Miss. 598, 54 So. 247; Sections 6027, 6028, Code of 1930; Cole v. Coon, 70 Miss. 638; Kennedy v. Sanders, 90 Miss. 524, 43 So. 913; Hamner v. Yazoo Delta Lbr. Co., 56 So. 469, 100 Miss. 349; 2 Cooley Const. Limitations, 763; 1 Cooley on Taxation, page 51; 2 Cooley on Taxation, 1066; Groesbeck v. Seely, 13 Mich. 342; Conway v. Cable Co., 37 Ill. 90.
Said statute impaired the obligation of appellee's contract with Mississippi contrary to (1) the contract clause of the state constitution; (2) the contract clause of the federal constitution.
Section 3249, Code of 1930; Wilkerson v. Harrington, 115 Miss. 637, 76 So. 563; Gregory v. Brogan, 74 Miss. 694, 21 So. 621; Hughes v. Gully, 170 Miss. 435, 153 So. 528; Farmers M. Bank v. Federal Reserve Bank, 262 U.S. 660, 67 L.Ed. 1164; Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840; Reid v. Federal Land Bank, 166 Miss. 392, 148 So. 392; Price v. Harley, 142 Miss. 584, 107 So. 673; Perry v. U.S., 294 U.S. 351, 79 L.Ed. 917; Griffin v. Ellis, 63 Miss. 348; Womack v. Central Lbr. Co., 131 Miss. 201, 94 So. 2; Hunter v. Bennett, 115 So. 206, 149 Miss. 368; Yazoo Delta Mortgage Co. v. Lumley, 116 So. 79, 149 Miss. 864; Crorow Hardwood Co. v. Moye, 137 So. 493, 161 Miss. 642; Tucker Printing Co. v. Bd. of Suprs., 171 Miss. 607, 158 So. 338; Lbr. Co. v. State, 97 Miss. 571, 54 So. 247; Chapter 196, Laws 1934; House v. Gumble Co., 78 Miss. 259, 28 So. 71; Jones v. Madison County, 72 Miss. 793; Section 2167, Code 1930; 61 C.J. 1374, 1661, 1364; 59 C.J. 1178; 71 C.J. 1180; 12 C.J., page 968, sec. 535, and page 969, and 1096, note 69; Sharpley v. Plant, 79 Miss. 175, 28 So. 799, 89 A.S.R. 588; Wilkinson v. Federal Land Bank, 168 Miss. 645, 150 So. 218, 168 Miss. 645, 151 So. 761; Bowers v. Andrews, 52 Miss. 596; Gamble v. Witty, 55 Miss. 26; Power v. Penny, 59 Miss. 11; Wolfe v. Murphy, 60 Miss. 1; Griffith v. Vicksburg, 102 Miss. 1, 58 So. 781; Wilson v. City of Lexington, 153 Miss. 212, 121 So. 859; Turpin v. Lemon, 187 U.S. 51, 47 L.Ed. 70; League v. Texas, 184 U.S. 156, 46 L.Ed. 478; Nevin v. Bailey, 62 Miss. 433; Gibbs v. Dortch, 62 Miss. 671; Breaux v. Megrotto, 43 La. Ann. 426, 6 So. 208; In re Lake, 3 So. 479; Woodruff v. State, 77 Miss. 68, 25 So. 483; Carlisle v. Goode, 71 Miss. 453; Hawkins v. Mangrum, 78 Miss. 97, 28 So. 872; Laws 1888, page 24; Laws 1890, page 19; Moores v. Thomas, 95 Miss. 644, 48 So. 1025; Hamner v. Yazoo-Delta Lbr. Co., 100 Miss. 349, 56 So. 466; Section 1709, Code of 1871; Atchafalaya Land Co. v. Williams, 258 U.S. 190, 66 L.Ed. 559, 84 So. 351, 146 La. 1047; State v. Club, 123 La. 208, 48 So. 891; Atchafalaya, etc., Board v. Capdevielle, 76 So. 327; In re Douglas, 6 So. 675; Sections 3249, 3272, 3273 and 2288, Code of 1930; Patterson v. Durfey, 68 Miss. 779, 9 So. 354; Central Trust Co. v. Haynes, 110 Miss. 119, 69 So. 663; Chapter 196, Laws 1934.
Said statute deprives appellee of property without due process of law. It is beyond the power of the Legislature to enact that a statute shall begin to run against the right of a person to recover land before his right to possession of the land accrues.
Chapter 337, Laws of 1934; Jordan v. Bobbitt, 91 Miss. 1, 45 So. 311; Morgan v. Hazlehurst Lodge, 53 Miss. 665; 12 C.J. 980; Webster v. Cooper, 14 How. 488, 14 L.Ed. 510.
Possession was wrongfully assumed to be confiscated.
Principality of Monaco v. Mississippi, 292 U.S. 313, 78 L.Ed. 1282; Green v. State, 53 Miss. 148; Miss. Cent. Co. v. Ludeback, 86 So. 517, 123 Miss. 827; Ayres v. Board, 98 So. 847, 134 Miss. 363; State Highway Commission v. Gully, 145 So. 351, 167 Miss. 631; State v. Woodruff, 150 So. 760, 170 Miss. 744; U.S. v. Lee, 106 U.S. 196, 27 L.Ed. 171; Fitts v. McGehee, 172 U.S. 516, 43 L.Ed. 535; Sections 403, 404, Code 1930; Powers v. Penny, 59 Miss. 5; Virden v. Bowers, 55 Miss. 1; Dingey v. Paxton, 60 Miss. 1038; Nevin v. Bailey, 62 Miss. 453; Sec. 1709, Code of 1871; Cooley on Taxation 377-384; Gibson v. Berry, 66 Miss. 515; Sigmund v. Lunday, 66 Miss. 529; Metcalf v. Perry, 66 Miss. 68; Woodruff v. State, 77 Miss. 112; Woodman v. Fulton, 47 Miss. 684; Nelson v. Abernathy, 74 Miss. 168; Cole v. Coon, 70 Miss. 638; Jonas v. Flanniken, 69 Miss. 583; Ricks v. Baskett, 68 Miss. 250; Patterson v. Durfey, 68 Miss. 779.
Said statute denies to appellee the equal protection of the law contrary to both state and federal constitutions in that (1) it unjustly discriminates between sales made to the state and those made to individuals; and (2) between sales made prior to 1928 and sales made subsequently thereto.
Brownell v. Metropolitan Casualty Co., 294 U.S. 580, 79 L.Ed. 1070; Power Mfg. Co. v. Saunders, 274 U.S. 490, 71 L.Ed. 1165; Hanover Fire Ins. Co. v. Harding, 272 U.S. 494, 71 L.Ed. 372, 49 A.L.R. 713; Ballard v. Miss. Cotton Oil Co., 81 Miss. 507.
J.T. Garraway, of Purvis, and Lamar F. Easterling, of Jackson, for appellant on Suggestion of Error.
We most respectfully submit that in the peculiar facts of this case, as shown by the pleadings, the bills failed to state a cause of action. It failed to show title in the appellee. It failed to show any irregularity in the assessment or sale, which would invalidate the sale. Under the authorities cited in our original briefs and in this brief there was no defect in the sale, but the sale on the decision of this court was perfectly valid. Therefore, the court erred in overruling the appellant's demurrer, and the decree of this court reversing said cause is right and proper for the reason that, admitting every allegation contained in the bill where sufficiently pleaded, on the decisions of this court, the tax sale was not invalid, but was valid. Such irregularities as are alleged in the bill would not have needed the healing, curative properties as contained in Chapter 196 of the Laws of 1934. Therefore, the opinion in this court when limited to the facts of this case as reported in 178 So. 815, is pre-eminently correct, and should be adhered to.
All that this court has said as to the construction of Chapter 196 of the Laws of 1934, its object and purposes and its effect cannot be gainsaid or denied. It is an admirable statement of the conditions, intent and purpose of the Legislature. On the facts of this case everything that was said therein is correct and applicable.
It will be further observed that as to all land sold to the state between 1927 and the date of said act, the Legislature specifically provided that the owner, mortgagee or any party interested in said lands might file a suit within two years from the date of said act to recover the said land because of any defects, irregularities or illegalities in the assessment, levy and sale. As to all sales thereafter made, which would include the sales made in September, 1934, the owner, mortgagee or person interested must file a suit within two years from the time the period of redemption expired. This statute was retroactive as to all prior sales and prospective as to all future sales. It was our contention in the brief filed by the writer hereof that the purpose of this statute was to cure alleged "defects, irregularities or illegalities in the assessment, levy and sale." When so construed and so applied, it is constitutional. If attempted to be stretched to cover a case where the assessment roll was wholly void because of any constitutional defect such as failure to give notice to the taxpayers or other similar fundamental invalidity in the assessment or sale it might be subject to the objection urged in such a case though there is eminent authority to the contrary of that proposition.
61 C.J., page 1364, sec. 1938, par. 15, page 1374, page 1238, sec. 1681; 59 C.J., page 1178, sec. 715; 12 C.J., sec. 535 (3), page 1095, sec. 795, page 1091, sec. 786, page 978; Dingey v. Paxton, 60 Miss. 1040; Virden v. Bowers, 59 Miss. 11.
We believe that the true test is that if the defect in the assessment and sale is not fundamental or jurisdictional under the Constitution, and is such that the legislature might have dispensed with, then the legislature by retrospective act can dispense with it.
Gamble v. Witty, 55 Miss. 27; Wolfe v. Murphy, 60 Miss. 1; Natchez v. Minor, 10 S. M. 255; Griffith v. City of Vicksburg, 102 Miss. 1, 58 So. 781; Turpin v. Lemon, 47 L.Ed. 70; Leage v. Texas, 46 L.Ed. 478; Nevin v. Bailey, 62 Miss. 433; Gibbs v. Dortch, 62 Miss. 671; Cooley on Taxation, page 222.
Even if it be conceded for the sake of argument that the pleader sufficiently pleaded that the sale in the instant case was not made by the tax collector, as required by law, which we deny, still this would not have been a constitutional defect.
In re Lake, 3 So. 479; Woodruff v. State, 77 Miss. 68, 25 So. 483; Carlisle v. Goode, 71 Miss. 453; Moores v. Thomas, 95 Miss. 644, 48 So. 1025.
It stands admitted that the appellee failed to pay his taxes for 1931. To say that he overlooked it does not excuse. The records were open. After the sale on April 4, 1932, under the law then existing he was allowed two years in which to redeem. The law required notice to be given to him and the presumption is that the Chancery Clerk did his duty and he received the notice. Before the time for redemption expired under the Laws of 1932, by Laws of 1934 the Legislature extended the time of redemption from two to three years under certain conditions mentioned in the original opinion herein, granting more liberal terms to the owner of land, and almost begging him to redeem his land and get it back upon the tax roll. Appellee took advantage of none of these acts and made no move until November, 1936, when the bill in this case was filed.
It seems to us that our statutes are more than fair to the taxpayer. If he fails to pay his taxes or to redeem his land, and in the case at bar, and under Chapter 196, to bring his suit within the two years therein prescribed, he has certainly no one to blame but himself. He certainly cannot claim any property rights caused by errors, irregularities and technicalities on the part of the various officers in dealing with the assessment, levy of taxes, sale of property and filing of the list, etc. He can only complain of fundamental, basic and constitutional defects such as would render the sale absolutely void for want of power.
Sections 3249, 3272 and 3273 of the Code of 1930.
We most respectfully submit that under the authorities cited the general trend of the judicial opinion in this state and in other states and of the United States Supreme Court is toward greater liberality in the power of legislatures to cure by curative and healing acts mere defects, irregularities and technicalities in all kinds of proceedings and that measured by such law, the act in question here meets all the requirements; and within the limits we have pointed out the legislature has the constitutional right and power to validate and cure any defect in the procedure of assessment, levy and sale, which it might have dispensed with in the first instance. We, therefore, most respectfully submit that the opinion heretofore rendered be adhered to and that the suggestion of error be overruled.
Alfred Stoner, of Greenwood, amicus curiae.
My information is that a suggestion of error will be filed in this cause, and as amicus curiae I desire to, with utmost deference to the opinion rendered in this cause, especially call the attention of the court to that which I consider as the settled law of this state, which nullifies Chapter 196 of the Laws of 1934, insofar as the case at bar is concerned. To my mind, it is evident that the attention of this court was not called to those cases which held such a statute to be unconstitutional. Our court has on numerous occasions held that a statute purporting to be a statute of limitations is absolutely void unless based upon occupancy or possession, and that the Legislature is without authority to pass a retroactive statute of limitations requiring a person in possession to sue. I shall not burden the court with citations of all of the authorities on this proposition. In fact, I submit that the authorities herein mentioned show conclusively that the law was definitely settled by the case of Dingey v. Paxton, 60 Miss. 1038.
I also desire to call the attention of the court to the case of Hamner v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466, wherein the brief of Judge Cooper was so able and convincing that the Supreme Court directed that it be copied in full by the publishers. In that case Judge McLean emphasized and italicized the fact that such an alleged statute of limitations would be void and held that no man in possession of land could be affected by a statute of limitations. In other words, under our settled law, the person in possession cannot be required by the legislature to file suit within a specified time. In other words, the statute cannot be made to run except as to those out of possession. This court will observe that this point was definitely and finally settled in that case, and I especially refer the court to pages 491, 492, and 493 of the 56th Southern Reporter, wherein the Hamner case above referred to is decided.
Also the statute is discriminatory in that it does not apply to lands sold to the state prior to January 1, 1928, and in that it discriminates between sales made to the state and those made to individuals. However, inasmuch as, in my opinion, the above cited authorities and those cases which follow them definitely settle the law, I shall not argue the point relative to the discriminations.
Hannah Simrall, of Hattiesburg, amicus curiae on Suggestion of Error.
In construing and applying Chapter 196 of the Laws of 1934, this court concludes and holds that the limitation provided and prescribed by said Chapter runs concurrently with the redemption period as to all sales that had been made prior to the passage of the act; but that the said limitation provided by said chapter runs consecutively after the period of redemption applicable to sales made after the passage of the act. The opinion of the court recognizes that this is a straight-out discrimination, but, apparently, justifies the action of the legislature in this behalf by pointing to the privileges and indulgences granted to and conferred upon taxpayers whose property had been sold in the year 1932, as reflected by Chapter 337 of the Laws of 1934 and Chapter 190 of the Laws of 1934.
If the 1934 Session of the Legislature had shown no beneficence or indulgence except in behalf of those taxpayers whose property had been sold for the 1931 taxes, and if the 1934 Legislature had not shown any recognition of the continued existence of the emergency or panic that had been in a measure responsible for these people losing their property, we could see more basis for the conclusion reached by this Honorable Court. However, when we come to examine the many acts of the Legislature passed immediately prior to the date of the approval of Chapter 196 of the Laws of 1934, and contemporaneously therewith, we find that the 1934 session of the Legislature was just as gracious and generous as to the taxpayers whose property was in jeopardy for the 1934 tax sale, as it was with respect to taxpayers whose property had been sold in 1932.
In view of these several acts of the Legislature, we respectfully submit that there is no basis for concluding that it was the purpose of the Legislature to have the limitation prescribed by Chapter 196 to run concurrently with the redemption period on sales made prior to the passage of the act and to have said limitation running consecutively after the redemption period as to sales made after the passage of the same.
What could be the purpose and object of the Legislature in discriminating between the taxpayers whose property had already been sold for the non-payment of taxes prior to the passage of this act in providing that the two year limitation period should run concurrently with the redemption rights as to sales made in these earlier years, and having it run consecutively after the redemption period as to sales made after the passage of the act? Can it be that the taxpayer who had been caught by the depression that started in 1929 should be dealt with more harshly than the taxpayer who was still subject to this panic after the 1934 session of the Legislature?
When the 1934 Legislature passed Chapter 196, it had already moved the 1934 tax sale date forward to the third Monday in September of that year. And then Chapter 383 of the 1932 Extraordinary Session gave to the taxpayer three years in which to redeem from the sale, and, in its recent opinion, this court holds that the two year period of limitation prescribed by Chapter 196 would not begin to run as to this 1934 sale until the expiration of this three years from the third Monday in September. But, the court says that, as to the taxpayer whose property was sold the third Monday in September of 1933, or on the first Monday in April, 1933, the period of limitation prescribed by Chapter 196 runs concurrently with this three year redemptive period. To so hold is to draw a clean line of distinction or demarcation between the taxpayer who was so unfortunate as to have his property sold in 1933 and the taxpayer who was so unfortunate as to have his property sold in 1934. We respectfully suggest that there is nothing in this whole legislative scheme to justify any such classification or discrimination; and that, when this court comes to compare the indulgences of the Legislature with respect to the 1932 tax sales with the indulgences shown by the Legislature for the 1934 sales, there can be no basis for such a distinction or discrimination.
We fully appreciate that the interpretation that is placed upon acts of the Legislature by other state departments is neither controlling nor binding on this court, and, in many instances, there is no occasion or reason for their even being persuasive. However, in this particular case, the interpretation that has been placed upon these acts of the Legislature by the state tax collector and the attorney general, is in conflict with that placed upon the acts by this court, and will only be productive of some very ridiculous and discriminating situations.
The state tax collector has been instituting suits, even after the expiration of the two year period prescribed by Chapter 196, against taxpayers, alleging that the tax sales were irregular and void and that the property-owner owed the taxes. Decrees of the Chancery Court have been entered on such bills of complaint and the taxes collected. And then, upon the presentation of these court decrees to the attorney general, he has been certifying that the sales were void and that the land commissioner should strike the lands from the list in his office. We, therefore, have one class of citizens who have been proceeded against by the state tax collector, and then invoked the assistance of the attorney general, and thereby had their lands stricken from the list of public lands and are in possession of the same; whereas, according to the opinion of the court rendered in this case, they are absolutely without any title thereto. The land commissioner and the attorney general having so acted leaves nobody except the Governor of the State of Mississippi to institute proceedings to recover and regain these lands for the state. We take it that, inasmuch as these are public court proceedings and public records, we are not going out of and beyond the record in this case in mentioning these facts.
We respectfully submit that the holding and finding of the court in this case is in direct conflict with the opinion of the court in the case of Dingey v. Paxton, 60 Miss. 1038.
This appeal presents the necessity of construing and applying chapter 196, Laws 1934, which prescribes a two-year statute of limitation within which actions may be brought by the former owners of land to cancel tax sales thereof to the state, and the claim of title acquired by patentees of such land, on account of defects, irregularities or illegalities in the assessment, levy, or sale of such land for taxes.
On April 4, 1932, certain land in Lamar county belonging to appellee was sold to the state for the delinquent taxes due thereon for the year 1931. It was not redeemed within the two years then prescribed by law, nor within the additional year granted for that purpose under certain statutes enacted by the Legislature at its 1934 session. Title to this land matured in the state on April 4, 1935, and the land was sold under a patent issued on November 9, 1935, to Mrs. Hardy Chance, from whom appellant purchased.
Section 1 of chapter 196, Laws 1934, provides, among other things: "That the owner, mortgagee or other person interested in any land which has been heretofore or may be hereafter sold or forfeited to the state for delinquent taxes may bring a suit or action to cancel the title of the state, or its patentees, or to recover said land from the state, or its patentees, on account of any defect, irregularity or illegality in the assessment, levy or sale of such land for delinquent taxes, within two years after the date this act becomes effective as to lands heretofore sold or forfeited to the state for delinquent taxes, and within two years after the period of redemption shall have expired, as to lands hereafter sold or forfeited to the state for delinquent taxes, and not thereafter."
And section 3 of said act provides that: "The completion of the limitation herein prescribed to bar any action shall defeat and extinguish all the right, title and interest, including the right of possession in and to such land, of any and all persons whatsoever, except the state of Mississippi and its patentees, and it shall vest in the state, and its patentees, a fee simple title to such lands."
This act was passed on April 4, 1934, and appellee filed his suit on November 16, 1936, to cancel the tax sale to the state together with the patent and deed of conveyance through which the appellant claimed its title to the land involved.
The bill of complaint alleged that the appellee, as complainant in the court below, had failed to pay the taxes on this land for the year 1931, and that the sale was made on April 4, 1932, for such delinquent taxes, but it attacks the validity of the tax sale on account of certain alleged defects, irregularities, or illegalities in the assessment, levy, and sale. An original, an amended, and a supplemental bill of complaint were filed, to which amended and supplemental bills of complaint a demurrer was interposed by the appellant mainly on the ground that the allegations thereof affirmatively show that the complainant's alleged cause of action was barred by the two-year statute of limitation prescribed in said chapter 196, Laws 1934. The chancellor overruled this demurrer, and an appeal was allowed to settle the controlling principles of law involved.
It is the contention of the appellee that, although the tax sale of the land in question was made to the state prior to the enactment of said chapter 196, Laws 1934, the two-year statute of limitation did not begin to run until the expiration of the period of redemption, since the land was not forfeited to the state, as he contends, until the time for redeeming the same had expired. In answer to this contention it should be said that, while it is true that during the period of redemption a tax sale is inchoate, that is, subject to be defeated by redemption within the time and in the manner prescribed by law, nevertheless, if it is not so redeemed, the tax sale becomes valid, and the title relates back to the date of the sale and takes precedence over any mortgage, deed, or other instrument executed by the owner during such period of redemption.
In order to determine the legislative intent and purpose in the enactment of this statute, the consideration of certain other statutes, likewise dealing with the subject-matter of land sold to the state for taxes and providing liberal terms for the redemption thereof by the former owners, has proven helpful in the interpretation of this particular statute. The Legislature, at its Extraordinary Session of 1932, by chapter 383 (Laws 1934, p. 653), provided that the owner of any land sold for taxes for the years 1932-33 or 1933-34 might redeem the same at any time within three years after the date of sale. This act did not embrace the sales of land made in 1932 for the delinquent taxes thereon for the year 1931, but on March 16, 1934, the Legislature enacted chapter 337, providing, among other things, that any person interested in any land sold to the state for taxes for the year 1931 might redeem the same at any time within three years after the date of sale, by paying to the chancery clerk the amount of all taxes for which the land was sold, with all costs incident to the sale, and 25 per cent on the amount of taxes for which it was sold and all costs, and all taxes and costs that might have accrued on the land since the sale. Then on April 4, 1934, the Legislature also provided by chapter 189, in section 14 thereof, that lands sold in 1932 for taxes for the year 1931 might be redeemed within three years from the date of sale, and by the terms of the said chapter reduced the interest rate from 1 per cent. per month to 6 per cent. per annum, and provided that, if the owner should make application by December 15, 1934, he could either pay the taxes for which the land was sold and the subsequent taxes with 6 per cent. interest per annum, or in his discretion could pay the taxes, interest and costs for the year in which the land was sold and execute a tax redemption note for the amount of taxes and costs which had accrued on the land since the date of sale, the note to be paid in four equal annual installments. Also on April 4, 1934, the Legislature further provided by chapter 190 that the owners of all lands sold for taxes prior to that time might, before the expiration of the period of redemption, pay one year's taxes and secure an extension for another year, and that during such extended period of redemption they might secure successive extensions of one year as provided for under the terms of said act. However, appellee failed to take advantage of any of the opportunities offered in this behalf.
These remedies, all of which were cumulative, evidenced an intention on the part of the Legislature to coax the former owners of tax forfeited lands to redeem the same under the liberal terms thus provided; and, having thus dealt with the rights of the delinquent taxpayer with unprecedented liberality in providing easy methods whereby he could redeem his land, the Legislature then concerned itself with the matter of inducing the citizens of the state to purchase lands which had been sold to the state and which might thereafter be sold to the state, and assured them, under the authority of chapter 196 of the Laws of 1934, that after two years from the passage of the said act they could purchase any land theretofore sold to the state without incurring any risk whatsoever as to any defects, irregularities, or illegalities that might have existed in the assessment, levy, and sale of said lands, and that this would likewise be true as to all sales thereafter made, unless such assessment, levy, and sales were attacked within two years after the expiration of the period of redemption.
The Legislature at that time was confronted with an enormously difficult problem of trying to bring back on the assessment rolls for revenue producing purposes approximately 1,300,000 acres of land which had theretofore been sold to the state for delinquent taxes thereon, and it was manifestly the intention of the Legislature that the two-year statute of limitation prescribed by chapter 196, Laws 1934, within which actions could be brought to attack the validity of the assessment, levy, and sales of land to the state, should apply to all sales theretofore made to the state, regardless of whether the period of redemption had expired at the time of the passage of this statute. To hold that the word "sold" applies to the date when the sale was made by the local tax collector, and that the word "forfeited" refers to the date of the expiration of the period of redemption, as these words are used in this chapter, would be equivalent to holding that the Legislature intended to prescribe two different statutes of limitation within either of which the taxpayer might have the option of filing his suit, since the statute expressly provides that the action must be brought within two years after the land is sold or forfeited to the state, and not thereafter.
From the foregoing views it necessarily follows that the present suit was barred by this two-year statute of limitation, and that the demurrer should have been sustained, notwithstanding the allegations of the bill of complaint to the effect that the assessment, levy, and sale of the land were not made according to law.
Reversed, and decree here for appellant.
In the former opinion rendered in this case, which appears in 178 So. 815, the court considered and, as we think, correctly applied Chapter 196, Laws of 1934, in deciding the question presented by the appellant's demurrer which had been overruled by the court below. The bill of complaint filed by the appellee as former owner of certain land in Lamar County sought to cancel as a cloud on his title a tax sale made to the state on April 4, 1932, also a subsequent patent from the state to Mrs. Hardy Chance, and a deed from said patentee to the appellant, because of alleged defects, irregularities and illegalities in the assessment, levy and sale of the land for the delinquent taxes due thereon for the year 1931.
The allegations as to the invalidity of the tax sale were the same as those made in regard to the same assessment and levy of taxes in Lamar County for that year in the case of Pettibone v. Wells, Miss., 179 So. 336, and which were therein held to be without merit, except that in the case at bar the sale itself is attacked upon two grounds: (1) That the land was offered for sale by the county prosecuting attorney instead of by the sheriff and tax collector, and (2) that the whole one hundred and fifty-nine acre tract was offered and sold as an entirety without the same having been first offered in subdivisions of forty acres, in the manner provided for by section 3249, Code of 1930.
In deciding the case we deemed the first of these objections to be of no consequence, since it is permissible for an officer or trustee to act through a deputy or agent in offering property for sale where such officer or trustee thereafter executes the conveyance in his own name. The second objection, though not consisting of a specific allegation of such facts as would show wherein there was a noncompliance with the statute above mentioned, we assumed, for the purpose of the decision, was a sufficient allegation of noncompliance to render the sale defective, irregular and illegal, and that therefore the bill of complaint and demurrer presented to us the necessity of construing and applying Chapter 196, Laws of 1934, since it affirmatively appeared that the suit was not brought within the two year limitation therein prescribed. In the former opinion we did not consider or pass upon the constitutionality of the statute in question. That issue was neither urged nor briefed with citation of authorities. The act was construed and applied as written. We think that the opinion correctly announces and applies the intention and purpose of the legislature in its enactment.
On suggestion of error the question of the constitutionality of the act has been fully briefed, and we have resorted to all available and legitimate sources of information in seeking to arrive at a correct conclusion in the light of the decision in the case of Dingey v. Paxton, 60 Miss. 1038, and the other authorities cited by counsel for the litigants, as well as by counsel amicus curiae.
In Dingey v. Paxton, supra, the land was sold to the state for taxes on May 10, 1875. Dingey was then in possession of the land and so remained until after August, 1879. During that month Paxton purchased the land from the state and immediately thereafter took possession of the same. The statute there under consideration was passed on April 11, 1876. The limitation therein provided expired, and under the statute the title vested in the state on January 1, 1878, at which time, continuously prior thereto, and until August, 1879, as aforesaid, Dingey was in possession of the land, whereas the bill of complaint in the case at bar does not sufficiently allege such possession by the former owner. Subsequent to August, 1879, Paxton, the purchaser, having dispossessed the former owner was sued in ejectment on account thereof. In that case the governing statute provided, among other things, that "no suit or action shall be brought in any court of the State, to vacate or impeach any such deed, or to maintain any title or deed antagonistic thereto, unless the same shall be brought within one year next after the date of such deed, and after the expiration of one year after the date of such auditor's deed, the same shall be held and deemed by all the courts of this State to be conclusive evidence of paramount title, and upon which actions of ejectment and all possessory actions may be maintained." Section 8. The court speaking through Judge Cooper said: "There is no doubt of the legislative will as expressed in the act. The evident purpose was to secure the title claimed by the State against all attacks by the owner upon any ground, after the expiration of the time limited. The act has a two fold operation: first, it prescribes a short period of limitation, after which no suit shall be brought by the owner for the recovery of the property; secondly, it gives to the conveyances under the tax-sales a conclusive effect as evidence, thereby cutting off all inquiry into the existence of irregularities or defects, and thus operates as a curative law." In the course of the opinion it is further stated that "the power of the Legislature to prescribe within what reasonable time one having a mere right of action shall proceed is unquestionable; but there is a wide distinction between that legislation which requires one having a mere right to sue, to pursue the right speedily, and that which creates the necessity for suit by converting an estate in possession into a mere right of action, and then limits the time in which the suit may be brought. The mere designation of such an act as an act of limitation does not make it such, for it is in its nature more than that. Its operation is first to divest from the owner the constructive possession of his property and to invest it in another, and in favor of the possession thus transferred to put in operation a statute of limitations for its ultimate and complete protection."
In that case the lands sold had not been described in the assessment so as to be located; in other words, there had been no valid assessment. It is fundamental to jurisdiction and the existence of the power to sell that there shall be an assessment of the land; that the land shall be subject to taxation, and that the taxes thereon shall be unpaid. Therefore, the court had before it a sale to which there was a constitutional objection, even though the land was also sold on the wrong day in noncompliance with a statutory requirement. While the decision of the court was based on both of these objections, as well as the fact that the effect of the judgment of the court below was to require, under a statute of limitation, one in full possession and enjoyment of all that he claimed to commence within the prescribed time a suit to recover the land, the decision of the case may have well rested on the constitutional objection that the land was not described so as to be located, and on the fact that there was an attempt to convert an estate in possession into a mere right of action.
In support of the correctness of the conclusion reached in Dingey v. Paxton, supra, it may be observed that the rule is universal to the effect that, to the extent that the statute there under consideration was dealt with as a curative law, it could not cure retroactively a failure to observe the constitutional requirements as to the assessment, levy and sale of the land for taxes. Dealing with the statute as one of limitation, the decision was also correct in holding that the legislature is without power to compel a resort to legal proceedings by one who is already in the possession and complete enjoyment of all he claims. Cooley's Constitutional Limitations, 8th ed., vol. 2, 763, 764. It is equally well settled that the legislature is vested with authority to cure by a retroactive statute the failure to observe any requirement that it may have dispensed with in advance, such as those which are merely statutory. In other words, the rule is that, in the absence of constitutional limitations, if the thing wanting, or which failed to be done and which constitutes the defect, irregularity or illegality in the proceeding, is something the necessity for which the legislature might have dispensed by prior statute, the legislature has power to dispense with by subsequent statute. Cooley's Constitutional Limitations, 8th ed., vol. 2, 775, 794; 12 C.J. 1091; 61 C.J. 1238, 1364; 6 R.C.L. 321; Bolles v. Brimfield, 120 U.S. 759, 7 S.Ct. 736, 30 L.Ed. 786; Street v. United States, 133 U.S. 299, 10 S.Ct. 309, 33 L.Ed. 631; Turpin v. Lemon, 187 U.S. 51, 23 S.Ct. 20, 47 L.Ed. 70; Sykes v. Town of Columbus, 55 Miss. 115; Powers v. Penny, 59 Miss. 5; Nevin v. Bailey, 62 Miss. 433; Gibbs v. Dortch, 62 Miss. 671; Griffith v. City of Vicksburg, 102 Miss. 1, 58 So. 781. This principle was also recognized in Dingey v. Paxton, supra, when Cooley's Constitutional Limitation, 370, was quoted in support thereof. The general rule last above mentioned is subject, however, to the qualification that such curative power does not exist where there has been a total departure from the method the law has specifically and plainly declared as to the manner in which the sales shall be conducted, including a failure to first offer the land in subdivisions as required by statute. Virden v. Bowers, 55 Miss. 1; Griffin v. Ellis, 63 Miss. 348; Nelson v. Abernathy, 74 Miss. 164, 21 So. 150; and Womack v. Central Lumber Co., 131 Miss. 201, 94 So. 2. To the same effect so far as the principle involved is concerned is the case of Yazoo-Delta Mortgage Co. v. Lumbley, 149 Miss. 864, 116 So. 95, the reason being that the rights of all parties to the contract of a sale for taxes are fixed and governed by the statute under which the sale is made, and these rights cannot thereafter be substantially impaired under clause 1, section 10, Article 1 of the Federal Constitution, U.S.C.A. Const. art. 1, section 10, cl. 1. When the sale of appellee's land for taxes was here made the state was obligated under section 3249, Code of 1930, to offer it for sale in the manner therein provided, and the legislature could not remedy the failure to do so by a curative statute. But Chapter 196, Laws of 1934, does not undertake to cure or validate defects, irregularities and illegalities in the assessment, levy and sale of land for taxes. It is purely a statute of limitation, and does not take away any vested rights but fixes a reasonable period of time in which they may be asserted. It leaves the former owner the right to sue and have the sale declared void because of such defects, irregularities and illegalities. Clause 1, section 10, Article 1 of the Federal Constitution is not violated by a statute, as impairing an obligation of a contract, where the rights existing thereunder are neither taken away nor diminished, and where a reasonable time is provided in which they may be enforced after its enactment. In 12 C.J. 978, it is said that "the power to enact statutes of limitation is subject to the fundamental condition that a reasonable time shall be allowed for the exercise of the rights of action, whether existing or prospective, after it comes within the prospective or present operation of the statute and before the bar becomes effective. . . . Within these limits, however, it is competent for the legislature, either by extending or reducing the period of limitation, to regulate the time within which suits may be brought even on existing causes of action."
The Supreme Court of the United States held in the case of Turner v. State of New York, 168 U.S. 90, 18 S.Ct. 38, 40, 42 L.Ed. 392, that "it is well settled that a statute shortening the period of limitation is within the constitutional power of the legislature, provided a reasonable time, taking into consideration the nature of the case, is allowed for bringing an action after the passage of the statute, and before the bar takes effect. Terry v. Anderson, 95 U.S. 628, 632, 633 [24 L.Ed. 365, 366]; In re Brown [McGahey v. Virginia], 135 U.S. 662, 701, 705-707, 10 S.Ct. 972 [34 L.Ed. 304, 316, 318]." In the Turner Case the statute related to lands sold and conveyed to the state for nonpayment of taxes and provided that any action not begun within six months after its passage would be barred, and the court therein said: "It was argued in behalf of the plaintiff in error that the statute was unconstitutional, because it did not allow him any opportunity to assert his rights, even within six months after its passage. But the statute did not take away any right of action which he had before its passage, but merely limited the time within which he might assert such a right. Within the six months, he had every remedy which he would have had before the passage of the statute." Likewise in the present case there was reserved unto the appellee by the statute a full period of two years after its passage in which to assert any defect, irregularity or illegality in the assessment, levy and sale in question. 12 C.J. 978; Callanan v. Hurley, 93 U.S. 387, 23 L.Ed. 931; De Treville v. Smalls, 98 U.S. 517, 25 L.Ed. 174; and 2 Cooley's Constitutional Limitations, 8th ed., 764, where it is said: "It is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action; though what shall be considered a reasonable time must be settled by the judgment of the legislature, and the courts will not inquire into the wisdom of its decision in establishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice."
It is next insisted that the statute is unconstitutional in that it provides that the period of limitation therein prescribed shall not apply to lands sold to the state prior to January 1, 1928; that the distinction between lands sold prior to that date and those sold subsequently has no reasonable basis, and that the classification is in violation of the federal guaranty as to the equal protection of the law. U.S.C.A. Const. Amend. 14, section 1. However, the rule is announced in 6 R.C.L. 384, that "the question of classification is primarily for the legislature, and it can never become a judicial question except for the purpose of determining, in any given situation, whether the legislative action is clearly unreasonable. . . . When the classification in a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. The courts cannot require the legislature to specify its reasons for the classification, but they will always presume that the legislature acted on legitimate grounds of distinction, if such grounds exist." One who assails the classification in a statute must carry the burden of showing that it does not rest on any reasonable basis. It is presumed that the legislature in making discriminations in classifications in statutes bases them on adequate grounds. State v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710.
In determining whether statutes enacted by the legislature transcend the limits imposed by the federal and state constitutions the courts should proceed with the greatest possible caution; and they should never declare a statute void unless its invalidity is in their judgment established beyond reasonable doubt. They should adopt a construction that will bring it into harmony with the constitution by restricting its application to the legitimate field of legislation, whenever necessary in order to uphold its constitutionality and carry its provisions into effect. Money v. Wood, 152 Miss. 17, 118 So. 357; Mai v. State, 152 Miss. 225, 119 So. 177; Smith v. Chickasaw County, 156 Miss. 171, 125 So. 96, 705; Miller v. Sherrard, 157 Miss. 124, 126 So. 903; Chassanoil v. City of Greenwood, 166 Miss. 848, 148 So. 781; Id., 291 U.S. 584, 54 S.Ct. 541, 78 L.Ed. 1004; Tucker Printing Co. v. Board of Supervisors of Attala County, 171 Miss. 608, 158 So. 336. It has been said that "to doubt the constitutionality of a law is to resolve such doubt in favor of its validity." Every intendment is in favor of constitutionality unless its repugnancy to the constitution clearly appears, or is made to appear beyond a reasonable doubt. In 6 R.C.L. 101, it is said that "a statute enacted with the constitutional formalities comes before the courts sustained and authenticated by the sanction and approval of two of the three great departments of the state government, and hence the presumption in its favor." The propriety, wisdom and expediency of legislation is a question for the legislature and not for the courts, even though the particular statute under review may appear to be unwise or detrimental to the best interest of the state and not in accord with the principles of natural justice. It will be presumed that the legislature has considered the effect of the statute on the constitutional rights of the citizen, and that it acted from patriotic and just motives and with a desire to promote public good. This presumption is strengthened in the present case by the considerations which actuated the legislature, as discussed in our former opinion.
It is next urged that the statute cannot be upheld as applying to sales of land for taxes made prior thereto, for the reason that the former owner is required in such cases to challenge the legality of the sales, if at all, within two years from the date of the passage of the act, whereas under Chapter 383, Laws of 1934, the former owner was given three years from the date of sale in which to redeem land sold in 1933 and during the other years therein mentioned, and that by virtue of Chapter 196, passed on April 4, 1934, lands previously sold, as for instance, in September, 1933, could be redeemed as late as September, 1936; that, therefore, Chapter 196, Laws of 1934, by its very terms would vest the fee simple title of such lands in the state, or its patentees, before the expiration of the three year period of redemption allowed therefor. Our response to this contention is that we do not now have such a case before us. Until a case is presented wherein the statute is sought to be applied so as to cut off an unexpired portion of the period of redemption it is unnecessary to pass on the question. As to the land here involved, the period of redemption expired prior to the time when the bar of the two year statute of limitation could become effective. We are of the opinion that the fact is immaterial here that the statute of limitation ran concurrently with a portion of the period of redemption, since its effect was not to shorten the redemption period, and the appellee as former owner was authorized by section 404, Code of 1930, to institute, prior to the expiration of the period of limitation, a suit to cancel the claim of the appellant as a cloud, doubt or suspicion on his title, whether appellee was in possession or not, or whether he was threatened to be disturbed in his possession; although he was not required to do so by any statute of limitation so long as he may have remained in possession after the sale. Dingey v. Paxton, supra; Cooley's Constitutional Limitations, 8th ed., 763, 764; Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466. We find nothing contra on this point in Atchafalaya Land Co. v. Williams Cypress Co., 258 U.S. 190, 42 S.Ct. 284, 66 L.Ed. 559, since the circumstance of possession of the land was there also present.
As applied to defects, irregularities or illegalities in the assessment, levy and sale of land to the state for taxes, other than jurisdictional or constitutional objections, we are of the opinion that the constitutionality of the said chapter 196, Laws of 1934, must be upheld; that within this limitation the statute may be successfully invoked as one of limitation against any suit which seeks to challenge the validity of any tax sale to the state, embraced within provisions, on the ground of the existence of such defects, irregularities or illegalities, and particularly where the effect of its application would neither be to shorten the period allowed for redemption, nor to divest an estate in possession.
But it should be noted that the bill of complaint in the case at bar, as heretofore stated, does not sufficiently allege possession of the land on the part of the appellee either at the time of the enactment of Chapter 196, Laws of 1934, or thereafter, but in view of the fact that he would have been entitled to amend the pleading in that behalf had the demurrer been sustained by the court below, the cause should now be reversed and remanded for such further proceedings as may be deemed proper. And in order that there be no doubt as to what we here hold, let it be understood that whenever it is sufficiently shown in any case that the former owner of land sold to the state for taxes has remained in possession thereof after the sale, either in person or by tenant, then and in such event Chapter 196, Laws of 1934, shall have no application, and that the claim of title and possession of such former owner can be defeated only by proof of a valid assessment, levy and sale of the land for taxes both under the statutes as well as the Constitution, coupled with a failure to redeem from such sale within the time allowed by law. Otherwise, the statute must be given full force and effect, within the constitutional limitations hereinbefore mentioned, and as provided for in section 3 thereof, which declares, in keeping with the statutory provisions in regard to the effect of other statutes of limitation, that the completion of the period of limitation shall defeat and extinguish any pre-existing right or remedy of all persons whatsoever, except the state and its patentees, etc.
Finally, it is contended that the appellee stated a case for equitable relief on the ground of the alleged fraud perpetrated on the state by the appellant, acting through the patentee as its agent, in the purchase of the land. Assuming, but not deciding, that if the facts alleged in the bill of complaint in that behalf are true the patent from the state to the predecessor in title of the appellant is invalid, still under the case now presented, the appellee in order to recover must allege and prove an existing title in himself, independently of any defect in the title claimed by the appellant, or of the fraud perpetrated in its procurement. Jones v. Rogers, 85 Miss. 802, 38 So. 742; Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619.
For the reasons hereinbefore given we adhere to our former holding that the demurrer should have been sustained, but the final judgment rendered here will be set aside and the cause will be remanded.
Suggestion of error overruled.