American Inv. Co. v. Thayer

• Decision Date: 11 May 1895
• Citation: 7 S.D. 72,63 N.W. 233
• Parties: AMERICAN INVESTMENT COMPANY OF EMMETSBURG, IOWA, Petitioner and appellant, v. THAYER, County Treasurer, Defendant and respondent.
• Court: South Dakota Supreme Court

7 S.D. 72

63 N.W. 233

AMERICAN INVESTMENT COMPANY OF EMMETSBURG, IOWA, Petitioner and appellant,

v.

THAYER, County Treasurer, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Hyde County, SD Hon. Howard G. Fuller, Judge Affirmed Horace Comfort Attorneys for appellant. Geo. L. F. Robinson Attorneys for respondent. Opinion filed May 11, 1895

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 cancelled 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, 51 NW 949; American Inv. Co. v. County of Beadle,(1894). And again, in section 481, it is said that even remedial statutes will not be allowed to impose new duties or liabilities in respect to past transactions, unless the intention to do so is clearly expressed. As a question of ‘grammar, the phraseology of this law may include tax sales made prior to its passage; but the language used is entirely consistent with an intention that it should only be prospective in its operation, and a law will not...