Casner v. Meriwether, Case Number: 20255

• Decision Date: 14 July 1931
• Docket Number: Case Number: 20255
• Citation: 1931 OK 434,152 Okla. 246,4 P.2d 19
• Parties: CASNER et al. v. MERIWETHER.
• Court: Oklahoma Supreme Court

1931 OK 434

4 P.2d 19

152 Okla. 246

CASNER et al. v. MERIWETHER.

Case Number: 20255

Supreme Court of Oklahoma

Decided: July 14, 1931

Syllabus

¶0 1. Constitutional Law--Statutes--Taxation--Act Providing for Foreclosure of Tax Liens Held Void for Imposing Additional Burdens and Granting Additional Rights Retroactively.

Chapter 12, Session Laws of 1925, provided for a tax lien on land "for the value of all improvements placed thereon by such lienholder and those under whom he holds or claims," "superior to any other lien, except that of the state and junior tax sales," limited the right of redemption of minors, idiots, and insane persons, and provided for additional rights of possession and means of acquiring possession of the land. By its terms it applied to tax sale certificates "heretofore or hereafter issued." The character of the act was such that the court cannot say that the Legislature would have adopted the same without the provision for retroactive effect. For the reason that the act attempted to impose additional burdens and grant additional rights retroactively, the act was void as in conflict with the limitations contained in the Constitution of Oklahoma.

2. Same--Act Held Void Because Granting Rights and Imposing Burdens not Expressed in Title.

Chapter 12, Session Laws of 1925, granted rights and imposed burdens not clearly expressed in its title, and for that reason was void as in conflict with the limitations contained in the Constitution of Oklahoma.

3. Same--Act Held Void Because Extending and Conferring Law "by Reference to Its Title Only."

Chapter 12, Session Laws of 1925, by its terms, extended and conferred the law of Oklahoma for the foreclosure of mortgages on real estate and sales thereunder "by reference to its title only" in violation of the provisions of section 57, art. 5, of the Constitution of Oklahoma. For that reason, the same was void.

Appeal from District Court, Wagoner County; W. J. Crump, Judge.

Action by Gilmer Meriwether against C. S. Casner et al. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions to dismiss.

Watts & Broaddus, for plaintiffs in error.

Twyford & Smith, Leo G. Mann, and W. R. Banker, for defendant in error.

ANDREWS, J.

¶1 This action was commenced on January 20, 1926, in the district court of Wagoner county, Okla., by the defendant in error, hereinafter referred to as plaintiff, against the plaintiffs in error, hereinafter referred to as defendants. The purpose thereof was to foreclose tax liens on various tracts of land in Wagoner county, under and by virtue of the provisions of chapter 12, Session Laws of 1925, hereinafter referred to as "the act." The cause was tried to the court, and judgment was rendered for the plaintiff, from which an appeal was taken to this court.

¶2 The act was repealed by Senate Bill No. 146 (chapter 37) of the Session Laws of 1927, after the commencement of this action and prior to judgment herein. The defendants assert that it was unconstitutional and void.

¶3 In the case of Langley v. Cox, 135 Okla. 291, 275 P. 638, this court had under consideration a judgment of a trial court sustaining a demurrer to a petition filed pursuant to the provisions of the 1925 act. The only contention therein discussed was that the title to the act limited the right of action to certain classes of tax certificates or deeds, whereas the body of the act included the right of action on all tax deeds and certificates. This court therein held:

"Where the title to an act of the Legislature restricts the operation thereof to a certain class and the body of the act includes all classes, the act thereof will be upheld to the extent of restricting the same to the class named in the title"

--and reversed the judgment of the trial court, with directions to overrule the general demurrer to the petition that had been sustained by the trial court. The decision in that case in no wise can be considered as a construction of the constitutionality of the 1925 act.

¶4 The record shows that the trial court rendered a judgment in favor of the plaintiff, not only for the amount of the taxes paid by the plaintiff, the accrued penalties, and the accrued costs, but for an attorney's fee of $ 75 on each of the causes of action here complained of, "that the plaintiff do have by virtue of said tax sale certificate a lien paramount and superior to any lien, interest, or title of the defendants herein for payment of said sums upon the lands and real estate described, * * *" and directing a sale of the land at public auction to the highest bidder for cash, without appraisement, in satisfaction of the lien.

¶5 The order of the trial court fixing an attorney's fee of $ 75 on each cause of action and decreeing the same to be a lien upon the land operated to burden the land of the defendants in addition to the burdens that might have been imposed thereon prior to the taking effect of the 1925 act.

¶6 The title to the act is as follows:

"An act providing for the enforcement of tax liens on lands and town lots, by foreclosure proceedings, where the tax sale certificates, tax deeds, or any of the proceedings relating thereto are void, voidable, or defective, and for a disposition of the proceeds of sales thereunder, and for the redemption of such lands and town lots."

¶7 The title to the act does not clearly express an intent to give the same a retroactive effect. The body of the act states that it shall apply to tax sale certificates "heretofore or hereafter issued." The requirement of section 57, art. 5, of the Constitution of Oklahoma, is that every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title. One of the primary objects of the section is that the title of an act shall bear clear notice, not only to the legislative body, but to the electorate of the state, of what the act may contain. State ex rel. Short v. Johnson, 90 Okla. 21, 215 P. 945. An examination of the title discloses nothing that can be construed to inform either the members of the Legislature or the electorate of the state that there was any intent to provide for the imposition of burdens and to grant rights retroactively. For that reason, the entire act is in violation of the constitutional provision.

¶8 There is no provision in the act which, in terms, imposed a lien upon the land for attorney fees. If any such lien was therein provided for, it was by inference. The only provision in the act as to attorney fees was with reference to the application of the proceeds arising from the sale of the land. The court clerk was therein authorized to apply the proceeds arising from a sale of land to the payment of all costs of the action and sale, including an attorney's fee to the lienholder's attorney to be allowed by the court. The taxes involved in the action accrued and the tax sale certificates were issued long prior to the adoption of the 1925 act. If the act was retroactive in effect, so as to afford the plaintiff a right not theretofore existing or to impose a burden upon the land not theretofore authorized, the provisions therefor were not valid. Section 15, art. 2, of the Constitution. Anderson v. Ritterbusch, Co. Treas., 22 Okla. 761, 98 P. 1002. If the act authorized the imposition of a lien upon the land for an attorney's fee, it was in direct conflict with that constitutional inhibition. If the act did not violate that provision, then the order of the district court providing for a lien for attorney's fees was without authority and void.

¶9 The plaintiff contends that no new right was granted and that no new obligation was imposed by the act. In his brief, he says, "Our answer to the brief of plaintiffs in error is: Chapter 12, S. L. 1925, is remedial only, and creates no new rights." In the language of the plaintiff in his brief:

"Under our statutes in force prior to the enactment of this foreclosure act, the holder of a certificate had a lien on the property covered thereby. This act only gives a new method of enforcing that right, a method which has been adopted in many states."

¶10 That contention is in conflict with the further contention of the plaintiff that he was entitled to recover an attorney's fee, and to have the same fixed as a lien upon the land. If, under the provisions of the act, he was entitled to have an attorney's fee fixed as a lien upon the land, his contention fails, for that gave him a right that he did not theretofore have, to wit, to recover for his attorney's fee, and imposed an obligation on the land of the defendants not theretofore existing, to wit, the subjecting of the land to the payment of the attorney's fee. Prior to the adoption of the act, the procedure authorized the service of a notice of intention to apply for a tax deed and for the issuance of a tax deed upon application after notice. There was no provision for the payment of an attorney's fee. While doubtless it would have been advisable for the holder of a tax sale certificate to have an attorney prepare the necessary papers and supervise the proceedings incident to the issuance of a tax deed, no provision for compensation of an attorney at the expense of the land had been made. The act either provided for the imposition of an attorney's fee and the fixing of a lien upon the land therefor, or it did not. If it did, that provision of the act was void for the reason that no intent therefor was included within the title to the act. Section 57, art. 2, of the Constitution. If it did not, then the judgment of the trial court is void as an excess of of authority.

¶11 The plaintiff contends that the 1925 act was a procedural act, and that, under the decisions of this court, no person has a vested right in a particular mode of procedure. This court has uniformly held to that effect, and under those decisions the procedure for obtaining a tax deed may be changed by the Legislature. However, in our opinion, the act in question was not...