Am. Inv. Co. of Emmetsburg, Iowa v. Thayer

• Decision Date: 11 May 1895
• Parties: AMERICAN INV. CO. OF EMMETSBURG, IOWA, v. THAYER, County Treasurer.
• Court: South Dakota Supreme Court

7 S.D. 72

63 N.W. 233

AMERICAN INV. CO. OF EMMETSBURG, IOWA,

v.THAYER, County Treasurer.

Supreme Court of South Dakota.

May 11, 1895.

Syllabus by the Court.

1. Statutes will not be given retroactive effect unless such intent upon the part of the legislature is very clearly expressed.

2. Both because such intent is not therein clearly expressed and because it is doubtful if the legislature has power to create a legal liability out of a past transaction from which none arose at the time of its occurrence, held, that chapter 161 of the Laws of 1893, directing county treasurers to refund to the holder and owner of tax-sale certificates for real property not liable for taxation, does not apply to sales made prior to its enactment.

Appeal from circuit court, Hyde county; Howard G. Fuller, Judge.

Petition by the American Investment Company of Emmetsburg, Iowa, against D. B. Thayer, as treasurer of the county of Hyde, for a writ of mandamus. From an order sustaining a demurrer to the petition, petitioner appeals. Affirmed.Horace Comfort, for appellant. Geo. L. F. Robinson, for respondent.

KELLAM, J.

This is an appeal from an order of the circuit court for Hyde county refusing a mandamus requiring the treasurer of said county to refund the amount of a certain tax-sale certificate and subsequent taxes paid by appellant. The taxed land was entered in 1884 by one Hoggatt, but his entry was subsequently canceled by the commissioner of the general land office in 1890. The land was sold for the delinquent taxes of 1885. The appellant, becoming the owner of the sale certificate, paid the subsequently accruing taxes up to and including the taxes of 1889. Its claim to have the amount so paid refunded rests upon chapter 161 of the Laws of 1893. It reads as follows: “Whenever real property not liable for taxation shall have been sold for taxes, and the certificate thereof is void, the county treasurer of the county where such sale was made, shall refund to the holder and owner of such certificate, the amount paid to the county for the same.” The only question in the case is this: Does this law of 1893 authorize or require the county treasurer to refund moneys so paid to the county prior to the taking effect of the law, or, in other words, is such law retroactive?

It is a well-established rule that statutes will not be given retroactive effect unless such intent upon the part of the legislature is very clearly expressed. In Suth. St. Const. § 406, the author says such laws “may be valid, but there is always a strong leaning against giving them a retrospective operation.” “Such laws are looked upon with general disfavor.” See, also, Cutting v. Taylor, 3 S. D. 16, 51 N. W. 949;American Inv. Co. v. Beadle Co. (S. D.) 59 N. W. 212. And again, in section 481, it is said that even remedial statutes will not be allowed to...