Summary
In State v. Roell, 192 Miss. 873, 7 So.2d 867 in an opinion written by the present Chief Justice, it was reiterated that a purchase price for state lands may be so inadequate as to amount to a donation in contravention of Section 95 of the Constitution.
Summary of this case from Craig v. Mercy Hosp. — Street MemorialOpinion
No. 35070.
May 11, 1942.
1. CONSTITUTIONAL LAW.
Every reasonable doubt should be resolved in favor of constitutionality of a statute.
2. CONSTITUTIONAL LAW.
A statute should be construed if reasonably possible so as to avoid rendering it unconstitutional or seriously endangering its constitutionality.
3. CONSTITUTIONAL LAW.
Where a statute is capable of two constructions, one of which would render it invalid and the other valid, the construction which upholds its validity must be adopted.
4. PUBLIC LANDS.
The statute requiring the court to validate title based on patent issued pursuant to valid tax sale, unless title was divested out of the state without payment of "purchase price," is construable as referring to purchase price not so grossly inadequate as to amount to "donation" of land from state to patentee, and as so construed is not violative of constitutional provision prohibiting donation of state lands (Laws 1940, ch. 309, sec. 3; Const. 1890, sec. 95).
5. STATUTES.
The Supreme Court in construing statute relating to suit to quiet title based on tax forfeited land patent, would presume that the legislature in enacting the statute was familiar with former decisions of the Supreme Court regarding effect of payment of inadequate consideration for state lands (Laws 1940, ch. 309, secs. 1-3).
6. TAXATION.
The statute requiring the court to validate title based on patent issued pursuant to valid tax sale unless patent was obtained by "actual fraud" is construable as referring to fraud in procurement of patent, as the making of false statements to or intentionally withholding important information from the State Land Commissioner concerning material facts in regard to which applicant is required to make disclosure under oath by statute (Laws 1940, ch. 309, sec. 3; Laws 1936, ch. 174, sec. 5).
7. STATUTES.
In construing statute requiring court to validate title based on patent issued pursuant to valid tax sale unless patent was obtained by actual fraud the Supreme Court would presume that the legislature used the quoted term in the sense in which it had long been understood in the legal jurisprudence of the state (Laws 1940, ch. 309, sec. 3).
8. STATUTES.
The statute requiring court to validate title based on patent issued pursuant to valid tax sale unless purchase price has not been paid or actual fraud has been committed in procuring patent, is not unconstitutional as suspending operation of "general laws" prohibiting certain persons from owning public lands, declaring that tax forfeited lands in excess of certain amount acquired by any person in any one year shall escheat to state, and declaring fraudulent purchases of public land to be void (Code 1930, secs. 6026-6028; Laws 1936, ch. 174, sec. 14; Laws 1940, ch. 309, sec. 3; Const. 1890, sec. 87).
9. STATUTES.
The statute relating to suit to confirm title based on patent issued pursuant to valid tax sale is not unconstitutional as a "special" or "local law" enacted in a case which might be provided for by general law (Laws 1940, ch. 309, secs. 1-3; Const. 1890, sec. 87).
10. STATUTES.
The statute relating to suit to confirm title based on patent issued pursuant to valid tax sale is not unconstitutional as a "special" or "local law" granting land under control of the state (Laws 1940, ch. 309, secs. 1-3; Const. 1890, sec. 90(u)).
11. TAXATION.
Whether tax forfeited land has been obtained from state through patent without payment of "purchase price" and whether patent has been obtained through actual fraud within statute relating to confirming title to such land, are "question of fact" which patentee or those claiming through him are entitled to have judicially determined in order that it may be ascertained whether patentee obtained title by virtue of his purchase (Laws 1940, ch. 309, secs. 1-3).
12. TAXATION.
The statute relating to confirming of title based on tax forfeited land patent is a "procedural statute" under which patentee or those claiming under him can obtain judicial determination of whether patentee was guilty of fraud or violation of any positive statute in obtaining the patent (Laws 1940, ch. 309, secs. 1-3).
13. TAXATION.
A presumption exists in favor of the existence and due performance of all conditions on which validity of patent to tax forfeited land depends.
14. STATES.
The statute relating to confirming of title based on tax forfeited land patent is not violative of constitutional provision that no obligation or liability of any person owned by the state shall be remitted, released or postponed or diminished by the legislature, nor shall such liability be extinguished except by payment (Laws 1940, ch. 309, secs. 1-3; Const. 1890, sec. 100).
15. TAXATION.
Where statute required court to perfect title based on patent issued pursuant to valid tax sale unless patent was obtained by "actual fraud," further provision that no patent should be canceled because of "errors or omissions or incorrect statements" in application for patent, was construable as relating to errors, omissions and incorrect statements not constituting fraud within meaning of the statute (Laws 1940, ch. 301, secs. 1-3).
APPEAL from the chancery court of Harrison county, HON. D.M. RUSSELL, Chancellor.
Greek L. Rice, Attorney-General, by Jefferson Davis, Assistant Attorney-General, for appellant.
Chapter 309, Laws of 1940, is in violation of sub-section (u) of Section 90 and Section 87, 95 and 100 of the Constitution of 1890.
Soon after the adoption of the Constitution of 1890 the legislature passed general laws dealing with the sale of tax forfeited lands belonging to the state as it was required to do by sub-section (u) of Section of the Constitution above quoted.
Mississippi Code of 1930, Secs. 6026, 6027, 6030, 6037.
The state operated under this procedure for many years but in 1936 the legislature deemed it advisable to set up a new system governing the sale of tax forfeited lands and to that end passed Chapter 174 of the Laws of 1936, which chapter, in some instances, changed the general law above referred to and threw certain safeguards around the sale of the state's tax forfeited lands.
This act, that is, Chapter 174, Laws of 1936, did not change the provisions of Sections 6026, 6027 or 6028 of the Code of 1930.
See Streator et al. v. State, 180 Miss. 31, 170 So. 54; State v. Adams, 185 Miss. 606, 188 So. 551; State v. Tate, 188 Miss. 865, 196 So. 755.
The rights of individuals purchasing tax forfeited lands from the state under these general laws were fixed thereby. The rights of the state as to its forfeitures, etc., were also fixed by these general laws.
In 1940 the legislature passed Chapter 309, Laws of 1940, it being the act under consideration, in which act the legislature attempts to validate or set up a procedure whereby all tax forfeited land patents issued by the state might be validated except in those cases in which it is made to appear to the court, (1) that the state had not acquired title to the land by virtue of a tax sale, (2) that title to the land was divested out of the state "without payment of purchase price," or (3) that title was divested out of the state by reason of actual fraud on the part of the patentee or his representatives, but as to the latter provision the act says that no patent shall be cancelled "because of loss of the application papers to purchase said land, or because of errors or omissions or incorrect statements in said application," or other matters in connection with the sale of said land, such matters not constituting fraud as defined by the act.
It is clear that Chapter 309 of the Laws of 1940 is nothing more than a special act allowing those persons who acquired land in violation of the general laws to have the title to such land confirmed and quieted or, as the legislature expresses it in Section 3 of the act, to allow such persons to perfect the title of said land from the state, except in those three classes of cases mentioned.
This whole act is an attempt by the legislature to validate all tax forfeited land patents theretofore issued by the state and to suspend the general laws dealing therewith, regardless of the manner in which the patents were obtained. It is an effort on the part of the legislature to waive all acts or fraud perpetrated on the state in obtaining these patents and to divest the title from the state and perfect it in those who wrongfully obtained the same.
A similar principal was involved in Winton v. Day, 96 Miss. 1, 49 So. 264, and the court held that the act there involved was unconstitutional.
The rights of the state and the liability of the patentees accrued and arose under the general laws applicable to the purchase of tax forfeited lands existing at the time the land was sold by the Land Commissioner and we respectfully submit that under the Constitution of 1890 the legislature could not and cannot change these rights and liabilities by an act of this nature.
Miller v. Tucker, 142 Miss. 146, 105 So. 774.
We deem it our duty to call the court's attention to the rule followed in Lee v. Smith, 189 Miss. 636, 198 So. 296, citing 11 Am. Jur. Const. Law, Secs. 163, 164, under which rule it may be that the constitutionality of this act can be upheld but its application restricted so as not to violate the sections of the Constitution referred to. In other words, if a party has acquired lands in violation of the general laws dealing therewith and files suit to confirm his title under Chapter 309, Laws of 1940, the court will disregard the "mandate" of Section 3 of Chapter 309, Laws of 1940, and enter such decree as the facts and general law call for. As the matter now stands some of the courts are accepting Section 3 of this act literally and confirming title even though the patents have been issued on applications containing incorrect statements and omissions and in some cases where the patents were acquired in violation of Sections 6026 and 6027, Code of 1930, and Section 14, Chapter 174, Laws of 1936.
Heidelberg Roberts, of Hattiesburg, for appellees.
When it is reasonably in doubt whether a statute is constitutional, the doubt should be resolved in favor of the constitutionality of the act.
State v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A. (N.S.) 340; Natchez S.R. Co. v. Crawford, 99 Miss. 697, 55 So. 596.
Statute will not be held unconstitutional unless there is no reasonable escape therefrom, since every reasonable doubt should be resolved in favor of constitutionality of statute.
Tucker Printing Co. v. Board of Sup'rs of Attala County, 171 Miss. 608, 158 So. 336.
All presumptions and intendments should be indulged in favor of the validity of a statute, and its unconstitutionality should appear beyond a reasonable doubt before it will be held invalid.
Johnston v. Reeves Co., 112 Miss. 227, 72 So. 925; Miller v. State, 130 Miss. 564, 94 So. 706.
Statute, if reasonably possible, must be construed to harmonize with public policy indicated by Constitution.
Money v. Wood, 152 Miss. 17, 118 So. 357.
Statute should be so construed as to render it constitutional if possible.
State v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710.
If reasonably possible, statute should be construed to avoid rendering statute unconstitutional or seriously endangering its constitutionality.
Miller v. Sherrard, 157 Miss. 124, 126 So. 903.
All acts of the legislature are to be upheld by the court, unless it is plainly apparent that they conflict with the organic law, after solving all doubts in favor of their validity.
Board of Trustees of University of Mississippi v. Waugh, 105 Miss. 623, 62 So. 827, L.R.A. 1915D, 588, affirmed by Supreme Court of United States, 35 S.Ct. 720, 237 U.S. 589, 59 L.Ed. 1131.
Construction will be placed upon statute, if reasonably possible, which will render it constitutional.
Chassanoil v. City of Greenwood, 166 Miss. 848, 148 So. 781, affirmed by the Supreme Court of the United States, 54 S.Ct. 541, 291 U.S. 584, 78 L.Ed. 1004.
The courts will presume in favor of the constitutionality of a law until the contrary clearly appears.
Runnels v. State, Walker (1 Miss.) 146.
It is presumed that a statute is valid and the burden rests upon the party claiming the contrary to clearly establish its contention.
Dantzler Lumber Co. v. State, 97 Miss. 355, 53 So. 1; Smith County v. Eastman Gardner Co. (Miss.), 53 So. 7.
A statute is valid, unless it clearly conflicts with the state or federal constitution.
State v. Edwards, 93 Miss. 704, 46 So. 964.
The courts will presume in favor of the constitutionality of a statute and will incline to a construction favoring its validity unless its invalidity plainly appears.
Hinds County v. Johnson, 133 Miss. 591, 98 So. 95.
Where statute is capable of two constructions, one of which would render it invalid and the other valid, the construction which will uphold its validity must be adopted.
State v. Wheatley, 113 Miss. 555, 74 So. 427; Miller v. State, 130 Miss. 564, 94 So. 706; Robinson v. State, 143 Miss. 247, 108 So. 903.
See, also, State v. Louisville N.R.R. Co., 97 Miss. 35, 53 So. 454; Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977; Easterling Lumber Co. v. Pierce, 106 Miss. 672, 64 So. 461; Darnell v. Johnston, 108 Miss. 570, 68 So. 780; Staple Cotton Co-op. Ass'n v. Hemphill, 142 Miss. 298, 107 So. 24; Thompson v. Box, 147 Miss. 1, 112 So. 597; Hart v. State, 87 Miss. 171, 39 So. 523; State v. Jones, 64 So. 469; Edwards House v. Davis, 124 Miss. 485, 86 So. 849; Hinds County v. Johnson, 133 Miss. 591, 98 So. 95; 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; Sandford v. Dixie Const. Co., 157 Miss. 626, 128 So. 887; Morrison v. Guaranty Mortgage Trust Co., 191 Miss. 207, 199 So. 110.
Legislative intent is cardinal rule of construction. True purpose in construing statute is to ascertain intention of legislature.
Money v. Wood, 152 Miss. 17, 118 So. 357.
Legislative intent, when ascertainable, controls courts in construction or interpretation of statute.
Sartin v. Prentiss County, 156 Miss. 46, 125 So. 563.
Court should ascertain and enforce intent of legislature.
White v. Miller, 162 Miss. 296, 139 So. 611.
In interpreting statute, intent and purpose of legislature must be determined.
Easterling v. Howie, 179 Miss. 680, 176 So. 585.
See, also, Kennington v. Hemingway, 101 Miss. 259, 57 So. 809; City of Holly Springs v. Marshall County, 104 Miss. 752, 61 So. 703; Canal Bank Trust Co. v. Brewer, 147 Miss. 885, 114 So. 127; Alexander v. Graves, 178 Miss. 583, 173 So. 417; Rawlings v. Ladner, 174 Miss. 611, 165 So. 427; Gift v. Love, 164 Miss. 442, 144 So. 562; White v. Miller, 162 Miss. 296, 139 So. 611.
In determining legislative intent, if statute is plain, unambiguous and free from doubt, legislature intent will be ascertained from the language of the statute itself.
Abbott v. State, 106 Miss. 340, 63 So. 667; Alexander v. Graves, 178 Miss. 583, 173 So. 417.
In construing a statute, effect must be given to all its provisions.
McKenzie v. Boykin, 111 Miss. 256, 71 So. 382; Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; Dresser v. Hathorn, 144 Miss. 24, 109 So. 23; Universal Life Ins. Co. v. Cathings, 169 Miss. 26, 152 So. 817; Craig v. Miss. Power Light Co., 182 Miss. 299, 180 So. 604; Miss. Cottonseed Products Co. v. Stone, 184 Miss. 409, 184 So. 428; Alexander v. Graves, 178 Miss. 583, 173 So. 417; Chassanoil v. City of Greenwood, 166 Miss. 848, 148 So. 781.
Courts construing statute must seek legislature's intention and adopt interpretation giving effect thereto, though interpretation is beyond mere letter of statute.
Gandy v. Public Service Corp. of Miss., 163 Miss. 187, 140 So. 687; Zeigler v. Zeigler, 174 Miss. 302, 164 So. 768.
Other statutes dealing with the same subject matter should be read together and apparent conflicts harmonized, if possible.
Hunt v. Hunt, 172 Miss. 732, 161 So. 119; Choctaw County v. Tennison, 161 Miss. 66, 134 So. 900.
Where statute is ambiguous or obscure, or its meaning doubtful, court will resort to other things in aid of determining legislative intent.
In construing statute, not only language, but purpose and policy legislature had in view must be considered.
Smith v. Chickasaw County, 156 Miss. 171, 125 So. 96.
Courts in construing statute may resort to history of legislation and other pertinent considerations to ascertain legislative intent.
White v. Miller, 162 Miss. 296, 139 So. 611.
Where the meaning of a statute is not plain, resort must be had to the real purpose and intention of the legislature in adopting it, which, when ascertained, should be given effect by the court, though the letter of the statute be violated.
Gunter v. City of Jackson, 130 Miss. 637, 94 So. 844.
Where the meaning of a statute is ambiguous, resort may be had to the real purpose and intention of the legislature in adopting the statute, which, when ascertained, the court will give effect thereto even though the letter of the statute is violated.
Huber v. Freret, 138 Miss. 238, 103 So. 3.
If the language is ambiguous, intent is to be gathered from all provisions.
Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449.
This case is here on an interlocutory appeal to settle the controlling principles of law involved on the issue of whether or not the court below was correct in overruling the demurrer of the State of Mississippi to the bill of complaint filed by Mrs. Ida K. Roell and others to have confirmed and quieted, under Chap. 309, Laws of 1940, the title claimed by them as against the state and based upon a certain tax forfeited land patent issued prior to the passage of the said act. The demurrer challenges the constitutionality of this statute as being in violation of Subsection (u) of Section 90, and Sections 87, 95 and 100 of the State Constitution of 1890, the substance of which constitutional limitations will be hereinafter stated.
Section 1 of the act provides for the institution of a suit of this character against the state to obtain the relief herein sought. Section 2 requires that the state be represented by the attorney general in the defense of such a suit, and prescribes the procedure, etc., to be followed. Section 3 thereof, which is claimed to render the statute unconstitutional and void, makes it the duty of the court upon the hearing of such cases to validate and perfect the title in the complainant, unless the court shall find as a fact (1) that the state has not acquired title to the land by virtue of the tax sale; or (2) that the purchase price has not been paid; or (3) that actual fraud has been committed by the patentee, or his representative, in the procurement of the patent. The state contends that the foregoing requirement which makes it the mandatory duty of the court to confirm a title based upon a patent issued pursuant to a valid tax sale, unless the second or third of the above-mentioned grounds for not doing so are found to exist, has the effect of securing to the complainant in some instances a title which he would not otherwise be able to assert against the state for the reason that he may have paid a grossly inadequate purchase price for the land, or where he should not be entitled to successfully claim the land against the state because of the fact that either the patentee or his representative may have stated something in the application to the State Land Commissioner as a representation of fact, which is untrue, amounting to a fraud at law, in violation of Section 5 of Chapter 174, Laws of 1936, which requires the applicant to furnish certain information in writing and under oath to the Land Commissioner in regard to the character, condition, value, etc., of the land as a condition precedent to the right to obtain the patent therefor; or because the patentee may have acquired the land in excess of the one-quarter section of state forfeited tax lands which one person is allowed to purchase in any year, and in violation of Section 14 of said Chapter 174, Laws of 1936, which contains a provision, brought forward from Section 6026, Code of 1930, to the effect that all lands acquired, directly or indirectly, by any person in contravention of that or any preceding section of the act shall escheat to the state, and all monies and fees paid therefor shall be forfeited; or that the patentee may have acquired the land as a corporation or nonresident alien contrary to Section 6027, Code of 1930, rendering such a patent void; or may have acquired the land through fraud, whether actual or constructive, in violation of Section 6028, Code of 1930, declaring that "all fraudulent purchases of public lands heretofore made are void . . ."
Since every reasonable doubt should be resolved in favor of the constitutionality of a statute, and the same should be construed, if reasonably possible, to avoid rendering it unconstitutional or seriously endangering its constitutionality, State v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A. (N.S.) 340; Natchez S.R. Co. v. Crawford, 99 Miss. 697, 55 So. 596; Board of Trustees of University of Mississippi v. Waugh, 105 Miss. 623, 62 So. 827, L.R.A. 1915D, 588, Ann. Cas. 1916E, 522, affirmed by Supreme Court of United States, 237 U.S. 589, 35 S.Ct. 720, 59 L.Ed. 1131; Johnston v. Reeves Co., 112 Miss. 227, 72 So. 925; Miller v. State, 130 Miss. 564, 94 So. 706; Money v. Wood, 152 Miss. 17, 118 So. 357; State v. Gilmer Grocery Co., 156 Miss. 99, 125 So. 710; Miller v. Sherrard, 157 Miss. 124, 126 So. 903; Chassanoil v. City of Greenwood, 166 Miss. 848, 148 So. 781, affirmed by the Supreme Court of the United States, 291 U.S. 584, 54 S.Ct. 541, 78 L.Ed. 1004; Tucker Printing Co. v. Board of Sup'rs of Attala County, 171 Miss. 608, 158 So. 336; and in view of the further rule that where a statute is capable of two constructions, one of which would render it invalid and the other valid, the construction which upholds its validity must be adopted, State v. Wheatley, 113 Miss. 555, 74 So. 427; Miller v. State, 130 Miss. 564, 94 So. 706; Robinson v. State, 143 Miss. 247, 108 So. 903, it becomes necessary that we construe, if reasonably possible to do so, the requirement of the statute which says that the court shall validate and perfect a title based upon a patent issued pursuant to a valid tax sale, unless the title to the said land involved in the suit was divested out of the State of Mississippi "without payment of purchase price," to mean a purchase price not so grossly inadequate as to amount to a donation of the land from the state to the patentee in contravention of the provision of Section 95, Constitution of 1890, which prohibits the donation, directly or indirectly, to individuals or to corporations, of any of the lands belonging to, or under the control of the state. It will be presumed that the legislature was familiar with the former decisions of this court thus announcing the law as to the effect of such a consideration, and that it intended that the purchase price referred to in the statute should be one that would conform to this constitutional requirement in conveyances of a part of the public domain. We adopt this construction of the term "purchase price" as used in the statute because we deem it a reasonable construction, and assume that the legislature did not intend to use the term in a sense such as would require the court to confirm a title based upon a patent issued for a purchase price so grossly inadequate as to amount to a donation of the land from the state in violation of the Constitution. And, applying the same rule of construction for determining the constitutionality of the act in question, we construe the further requirement that the court shall validate and perfect a title based upon a patent issued pursuant to a valid tax sale unless the patent was obtained by "actual fraud on the part of the patentee, or his representatives," (which presupposes of course that a purchase price not so grossly inadequate as to amount to a donation has been paid for the land) to mean such fraud in the procurement of the patent as the making of false statements to, or intentionally withholding important information from, the State Land Commissioner as to material facts in regard to which the applicant is required to make a disclosure under oath by Section 5, Chapter 174, Laws of 1936, and which false representations were either known to be false, or were made in reckless disregard of whether the same were true or false. Since representations of this character have always been construed by our decisions to constitute actual fraud, it is presumed that the legislature used the term "actual fraud" in the sense in which that term has been long understood in the legal jurisprudence of this state. Such a construction of this provision of the statute would not suspend the operation of any general law for the benefit of any individual, private corporation or association, in contravention of Section 87, Constitution of 1890. It leaves in full force and effect the general law announced in Section 6027, Code of 1930, which prohibits a corporation or non-resident aliens from becoming the owner of any public lands, and which declares every patent issued in contravention thereof shall be void; and it also leaves unimpaired Section 14, Chapter 174, Laws of 1936, which declares in effect that all lands acquired, directly or indirectly, by any person in excess of one-quarter section of state forfeited tax lands in one year, shall escheat to the state. Nor does such construction affect Section 6028, Code of 1930. This is true for the reason that Chapter 309, Laws of 1940, now under consideration, does not evidence any intention on the part of the legislature to suspend the operation of either of these general laws, as contended for by the state, and for the further reason that in enacting this statute the legislature neither repealed nor modified Chapter 174, Laws of 1936, requiring an application for a land patent to be in writing and duly sworn to, furnishing certain information therein provided for, and it would be difficult to conceive that any of the public lands can be acquired by a corporation or a non-resident alien in violation of said Section 6027, or by any person by means of an application under oath for more than a one-quarter section of state forfeited tax lands in one year in violation of Chapter 174, Laws of 1936, without the purchaser being guilty of actual fraud within the meaning of Chapter 309, Laws of 1940.
Nor do we think that those provisions of Sections 87 and 90 of the Constitution of 1890 to the effect that no special or local law shall be enacted in the cases therein enumerated, are violated by Chapter 309, Laws of 1940, and the case of Hart v. Backstrom, 148 Miss. 13, 113 So. 898, fully sustains this view. Nor do we find anything announced to the contrary in the case of Winton v. Day, 96 Miss. 1, 49 So. 264.
The case of Hart v. Backstrom, supra, also sustains the position hereinbefore taken that the statute now under consideration does not violate Section 95, Constitution of 1890, which provides among other things that "lands belonging to, or under the control of the state, shall never be donated directly or indirectly, to private corporations or individuals . . ." Moreover, the question as to whether lands have been obtained from the state through a patent without the payment of the purchase price within the meaning of that term as hereinbefore construed, and whether the patent has been obtained through fraud as hereinbefore defined are questions of fact which a patentee or those claiming through him are entitled to have judicially determined in order that it may be ascertained whether or not the patentee obtained a title by virtue of his purchase. Prior to the enactment of Chapter 309, Laws of 1940, there was no proceeding by which this question of fact could be judicially determined, in a suit instituted by the landowner against the state, and if the state did not file a suit to cancel such a patent, the landowner was without remedy to have the question of his ownership of the land determined. It is a procedural statute, under which the claimant of such land, in the event of his not being guilty of fraud or violation of any positive statute, can obtain a judicial determination of this fact; in other words, it provides a method by which the patentee or those claiming through him may get a judicial determination of the question as to whether or not there has been a donation of public lands, or whether the patent has been obtained under such circumstances as to cause the title to remain in or escheat to the state. The presumption is in favor of the existence and due performance of all the conditions upon which the validity of the patent depends. Bledsoe v. Doe ex dem. Little, 4 How. 13; Carter v. Spencer, 4 How. 42, 34 Am. Dec. 106; Surget et al. v. Doe ex dem. Little, 24 Miss. 118; Harris v. McKissack, 34 Miss. 464; Sweatt v. Corcoran, 37 Miss. 513; Edward Hines Yellow Pine Trustees et al. v. State ex rel. Moore, 133 Miss. 334, 97 So. 552; State ex rel. v. Knapp, Stout Co., 136 Miss. 709, 101 So. 433; and Slay v. Lowery, 152 Miss. 356, 119 So. 819. If we are to indulge this presumption, then we cannot at the same time presuppose that the title of any land that may be involved in a suit to confirm and quiet title under the statute in question has remained in or escheated to the state on account of anything that may have occurred in connection with the issuance of the patent. That is the issue to be determined by the court in such proceeding. If the confirmation of the title would result in a donation of the land for a grossly inadequate consideration to the complainant, or in ignoring the perpetration of such fraud against the state as would render the patent void, then we must assume that the court will refuse to grant such relief in either event as would violate Section 95 of the Constitution; that the state gave its consent to be sued for the primary benefit of purchasers in good faith, and the statute likewise gives fraudulent purchasers their day in court to be heard on the issue of fact involving their turpitude, but not for the purpose of condoning it, since it expressly provides that in such cases of "fraud and failure to pay purchase price" (meaning by purchase price, one not so grossly inadequate as to amount to a donation, as aforesaid) the court shall enter a decree forever annulling and cancelling the patent.
Finally, it is contended that the statute violates Section 100, Constitution of 1890, which provides that "no obligation or liability of any person, association, or corporation held or owned by this state, . . . shall ever be remitted, released or postponed, or in any way diminished by the legislature, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury; nor shall such liability or obligation be exchanged or transferred except upon payment of its face value . . ." But, we are content to base our decision sustaining the constitutionality of the act on this ground upon the construction given this section of the Constitution by the court in the case of Adams, State Revenue Agent, v. Fragiacomo, 71 Miss. 417, 15 So. 798.
The final provision of Section 3, Chapter 309, Laws of 1940, provides that, "no patent heretofore issued shall be cancelled in such proceeding because of loss of the application papers to purchase said land, or because of errors or omissions or incorrect statements in said application . . . such matters not constituting fraud as above defined." We think that the "errors or omissions or incorrect statements in said application" should be construed to mean errors, omissions or incorrect statements not amounting to fraud, within the meaning of the statute, since the preceding portion of this section authorizes the court upon the hearing of such cases to refuse to validate or perfect the title in the complainant where actual fraud has been perpetrated upon the state in obtaining the patent, and directs the granting of affirmative relief to the state in such case, rather than to permit a donation of the land in violation of the Constitution.
Under the construction hereinbefore adopted, we are of the opinion that the act is constitutional and that the decree of the lower court should be affirmed and the cause remanded.
Affirmed and remanded.