Board of County Comm'rs of Mille Lacs County v. Morrison
| Decision Date | 22 September 1875 |
| Citation | 22 Minn. 178 |
| Parties | Board of County Commissioners of Mille Lacs County v. Dorilus Morrison |
| Court | Minnesota Supreme Court |
After rendering a tax judgment in this case, against defendant's objections, the district court for Mille Lacs county, McKelvey, J., presiding, certified the case to this court.
Judgment affirmed.
H. M Atkins, D. B. Searle, and Merrick & Morrison, for defendant.
W. W McNair, for plaintiff.
In the proceedings to enforce payment of taxes remaining delinquent on the first day of June, 1874, in the county of Mille Lacs, the defendant filed an answer as to the tax on certain lands, in which he objected that the affidavit of the county auditor to the list filed with the clerk was defective because it had no venue. This objection the court below overruled correctly. The language of § 113 of the act of March 9, 1874, entitled "An act to provide for the assessment and collection of taxes," (Laws 1874, ch. 1,) is so broad and general as to show clearly the intention of the legislature that when a list of the taxes is actually filed by the auditor, and the publication prescribed by the act made, no mistake or error in the proceedings shall affect the jurisdiction of the court.
The objection was also made that the affidavit of publication was insufficient, whereupon the court, against the objection of defendant, allowed a proper affidavit of publication to be filed, and proceeded with the case. In this the court was right. It is the fact, and not the proof, of publication which gives the court jurisdiction. Kipp v. Fullerton, 4 Minn. 473; Johnston v. Higgins, 15 Minn. 486. If the proof of publication first filed is defective, the court may at any time (certainly at any time before judgment) allow proper proof to be filed.
The defendant then demanded a trial by jury, which was denied. Whether the tax payer is entitled to a jury trial in these proceedings is an important question, as it affects both the power of the state to collect its revenues by a speedy and convenient mode, and the security of the citizen against oppression and illegal acts. It is claimed that because legal rights are involved and are to be determined, it is a proceeding at law, and that in all proceedings at law the right to a trial by jury is guaranteed by the constitution, and the case of Parsons v. Bedford, 3 Pet. 433, is cited. In that case Mr. Justice Story, discussing the provisions of the federal constitution in respect to trial by jury, says (p. 447): "By common law they meant what the constitution in the third article denominated 'law;' not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies administered; or where, as in the admiralty, a mixture of public law, and maritime law, and equity, were often found in the same suit."
If, by this language, the learned judge meant that in all proceedings to ascertain and determine rights, other than those of equitable or maritime jurisdiction, the constitution guarantees the right of trial by jury, the language is certainly too broad; for there are many proceedings, involving important rights, of neither equitable nor maritime jurisdiction, in which, as settled by many decisions, the parties are not entitled to a jury trial. We refer to a few of these: Proceedings by the state under its right of eminent domain. Penn. R. Co. v. Lutheran Congregation, 53 Pa. 445; Buffalo Bayou, etc., R. Co. v. Ferris , 26 Tex. 588; Haverhill Bridge v. County Comm'rs, 103 Mass. 120; Dronberger v. Reed, 11 Ind. 420; Livingston v. Mayor, etc., of N. Y., 8 Wend. 85.
Proceedings to determine the right to office under an election. Whallon v. Bancroft, 4 Minn. 109; Ewing v. Filley, 43 Pa. 384.
Proceedings to assess, on property benefited, the damages for taking lands for highways. People v. Mayor, etc., of Brooklyn, 4 N.Y. 419; McMasters v. The Commonwealth, 3 Watts 292. In mandamus. Atherton v. Sherwood, 15 Minn. 221. Under statutes for settling estates of insolvents. Sands v. Kimbark, 27 N.Y. 147.
Proceedings to appoint guardians of insane persons. Gaston v. Babcock, 6 Wis. 503.
References to assess the value of improvements under occupying claimants' laws, where such mode of assessment existed at the adoption of the constitution. Ross v. Irving, 14 Ill. 171. In suits uniting the legal cause of action to recover a debt, with the equitable cause of action to foreclose a mortgage given to secure it. Stilwell v. Kellogg, 14 Wis. 461. To enforce liens given by statute upon vessels for labor and material. Sheppard v. Steele, 43 N.Y. 52. In summary proceedings to enforce debts, where the party may be presumed, from his entering into the contract, to have consented to such mode of enforcing it. Bank of Columbia v. Okely, 4 Wheat. 235, 4 L.Ed. 559. As to enforce recognizances or the bonds of sheriffs. Gildersleeve v. The People, 10 Barb. 35; Murry v. Askew, 6 J.J. Marsh. 27; Creighton v. Johnson, 6 Litt. 240.
Summary convictions for petty offences. Byers v. Comwealth, 42 Pa. 89. To determine the settlement of paupers. Shirley v. Lunenburg, 11 Mass. 379. Upon judgments of courts martial under military laws. Rawson v. Brown, 18 Me. 216.
In proceedings for the assessment and collection of taxes. M'Carrol's Lessee v. Weeks, 5 Hayw. (Tenn.) 246; Cowles v. Brittain, 2 Hawks, (N. C.) 204; Harper v. Town of Elberton, 23 Ga. 566; New Town Cut v. Seabrook, 2 Strobh. 560; Crandall v. James, 6 R.I. 144.
The general principle upon which these cases were decided was that the several constitutions intended only to preserve the right of trial by jury in those cases where it existed at the adoption of the respective constitutions, and that rights of persons or property coming in question in those controversies in which, before that time, the right was not recognized do not come within the meaning of the constitutional guaranties. This court, in Whallon v. Bancroft, 4 Minn. 109, said (p. 113): "Wherever the right of trial by jury could be had under the territorial laws, it may now be had, and the legislature cannot abridge it; and those cases which were triable by the court, without the intervention of a jury, may still be so tried."
It is not, of course, to be understood from this that the right to a jury trial will depend on the form of the action or proceeding, or that the legislature may, by changing the form of proceeding or remedy, take that mode of trial from those rights to which the constitution intended to secure it. The constitution of Vermont provides: "Trial of issues proper for the cognizance of a jury, in the supreme or county courts, shall be by jury, except when parties otherwise agree." This, though differently expressed, is substantially the same as the provision in the constitution of this state. The supreme court of Vermont, discussing this clause in Plimpton v. Town of Somerset, 33 Vt. 283, said: "All rights, whether then or thereafter arising, which would properly fall into those classes of rights to which, by the course of the common law, the trial by jury was secured, were intended to be embraced within this article." This is the best definition that we have found of the classes of cases to which the trial by jury is secured, for it makes the right to such a trial depend on the nature and character of the controversy, and not on the form of action or proceeding in which it is to be determined.
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