Forster v. Forster

• Decision Date: 23 October 1880
• Citation: 129 Mass. 559
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Louisa Forster v. Edward J. Forster. Sarah P. Tucker v. James Deshon & another. George P. Baldwin v. Union Institution for Savings. Frederick D. Ely v. Jeremiah Dean. William H. Slocum v. City of Boston. Alice L. Prentice v. City of Worcester

129 Mass. 559

Louisa Forster v. Edward J. Forster.

Sarah P. Tucker v. James Deshon & another.

George P. Baldwin v. Union Institution for Savings.

Frederick D. Ely v. Jeremiah Dean.

William H. Slocum v. City of Boston.

Alice L. Prentice v. City of Worcester

Supreme Court of Massachusetts

October 23, 1880

Argued November 18, 1879; November 24, 1879

Suffolk. Worcester.

Judgment on the verdict for the respondent.

The cases were argued by H. W. Bragg, for Louisa Forster, and C W. Turner, for Edward J. Forster; by C. Allen & J. Fox for Tucker, and N. Morse & T. M. Babson, for Deshon; by S.W. Clifford, Jr., for Baldwin, and J. C. Crowley & J A. Maxwell, for the Union Institution for Savings; by J. W Hubbard, for Dean, and F. D. Ely, pro se; by C. A. Williams, for Slocum, and T. M. Babson, for the City of Boston; and by F. P. Goulding & W. A. Gile, for Prentice, and F. P. Blackmer, for the City of Worcester.

In addition to some of the cases referred to in the opinion, there were cited, in support of the validity of the St. of 1878, c. 229, the following authorities: Goshen v. Stonington, 4 Conn. 209. Mather v. Chapman, 6 Conn. 54. Beach v. Walker, 6 Conn. 190. Norton v. Pettibone, 7 Conn. 319. Thames Manuf. Co. v. Lathrop, 7 Conn. 550. Bellows v. Weeks, 41 Vt. 590. Jackson v. Gilchrist, 15 Johns. 89, 114. State v. Fuller, 5 Vroom 227. Strauch v. Shoemaker, 1 Watts & Serg. 166. Tate v. Stooltzfoos, 16 S. & R. 35. Chestnut v. Shane, 16 Ohio 599. Butler v. Toledo, 5 Ohio St. 225. Brevoort v. Detroit, 24 Mich. 322. Fairfield v. People, 94 Ill. 244. In re Goodell, 39 Wis. 232. Allen v. Armstrong, 16 Iowa 508. Boardman v. Beckwith, 18 Iowa 292. McCready v. Sexton, 29 Iowa 356. Iowa Railroad v. Soper, 39 Iowa 112. Todd v. Clapp, 118 Mass. 495. Commonwealth v. Hamilton Manuf. Co. 120 Mass. 383. Cooley Const. Lim. 107, 307, 371. Sedgw. St. & Const. Law, 640. Bacon De Augm. Scient. lib. 8, c. 3, aphor. 47-51.

Against the validity of the statute were cited the following additional cases: Ogden v. Blackledge, 2 Cranch 272. United States v. Klein, 13 Wall. 128, 143. Davidson v. New Orleans, 96 U.S. 97. Holden v. James, 11 Mass. 396. Blanchard v. Russell, 13 Mass. 1, 14. King v. Dedham Bank, 15 Mass. 447. Medford v. Learned, 16 Mass. 215. Holyoke v. Haskins, 5 Pick. 20. Picquet, appellant, 5 Pick. 65. Wheelwright v. Greer, 10 Allen 389. Simonds v. Simonds, 103 Mass. 572. White v. White, 105 Mass. 325. Sparhawk v. Sparhawk, 116 Mass. 315. Connecticut River Railroad v. County Commissioners, 127 Mass. 50, 57. Kennebee Proprietors v. Laboree, 2 Greenl. 275. Lewis v. Webb, 3 Greenl. 326. Oriental Bank v. Freese, 18 Me. 109. Beach v. Walker, 6 Conn. 190. Booth v. Booth, 7 Conn. 350. Hubbard v. Brainard, 35 Conn. 563. Hill v. Sunderland, 3 Vt. 507. Dash v. Van Kleeck, 7 Johns. 477. Taylor v. Porter, 4 Hill 140. Parmelee v. Thompson, 7 Hill 77. Powers v. Bergen, 2 Selden 358. People v. Supervisors, 16 N.Y. 424. Pell v. Ulmar, 21 Barb. 500, and 18 N.Y. 139. Hopkins v. Mason, 61 Barb. 469. Williamson v. New Jersey Railroad, 2 Stew. (N. J.) 311, 334. O'Connor v. Warner, 4 Watts & Serg. 223. Norman v. Heist, 5 Watts & Serg. 171. Hepburn v. Curts, 7 Watts 300. Hillyard v. Miller, 10 Penn. St. 326, 328. Greenough v. Greenough, 11 Penn. St. 489. Snyder v. Bull, 17 Penn. St. 54, 58. McCarty v. Hoffman, 23 Penn. St. 507. Reiser v. William Tell Association, 39 Penn. St. 137. Shonk v. Brown, 61 Penn. St. 320, 327. Alter's appeal, 67 Penn. St. 341. Haley v. Philadelphia, 68 Penn. St. 45. Connell v. Connell, 6 Ohio 353, 358. Silliman v. Cummins, 13 Ohio 116. Groesbeck v. Seeley, 13 Mich. 329. Case v. Dean, 16 Mich. 12. Walpole v. Elliott, 18 Ind. 258. Wantlan v. White, 19 Ind. 470. White v. Flynn, 23 Ind. 46. Marsh v. Chestnut, 14 Ill. 223. McDaniel v. Correll, 19 Ill. 226. Conway v. Cable, 37 Ill. 82. Wilson v. McKenna, 52 Ill. 43. Reed v. Tyler, 56 Ill. 288. Orton v. Noonan, 23 Wis. 102. Nelson v. Rountree, 23 Wis. 367. Brinton v. Seevers, 12 Iowa 389. Penn v. Clemans, 19 Iowa 372. McCready v. Sexton, 29 Iowa 356. McComb v. Bell, 2 Minn. 295. Thompson v. Morgan, 6 Minn. 292. National Bank v. Iola, 9 Kan. 689. Wright v. Cradlebaugh, 3 Nev. 341. Baltimore v. Horn, 26 Md. 194. Seibert v. Linton, 5 W.Va. 57. Wally v. Kennedy, 2 Yerger 554. Governor v. Porter, 5 Humph. 165. Calhoun v. McLendon, 42 Ga. 405. Hitchcock v. Way, 6 Ad. & El. 943.

Against the validity of the assessment of the tax, for nonpayment of which the fourth sale in Tucker v. Deshon was made, were cited: Desmond v. Babbitt, 117 Mass. 233. Marshall v. Fisk, 6 Mass. 24. Belchertown v. Dudley, 6 Allen 477. Conway v. Ashfield, 110 Mass. 113.

Gray, C. J. Morton & Soule, JJ., Endicott, JJ., Colt, JJ., absent.

OPINION

Gray, J.

By the Gen. Sts. c. 12, §§ 28-30, the collector, before selling real estate for taxes, is required to publish and post a notice of the time and place of sale, containing, among other things, a substantially accurate description of the several rights, lots or divisions of the estate to be sold. By § 33, if the taxes are not paid, he is required, at the time and place appointed for the sale, to sell by public auction so much of the real estate, or the rents and profits of the whole estate for such term of time, as shall be sufficient to discharge the taxes and necessary intervening charges; he is allowed at his option to sell the whole or any part of the land; and is directed, after satisfying the taxes and charges, to pay the residue of the proceeds of the sale, if any, to the owner of the land.

In Wall v. Wall, 124 Mass. 65, decided on February 8, 1878, it was adjudged by this court that the collector had no authority to sell an undivided interest in the land, so as to constitute the purchaser tenant in common with the owner; and that, when the only previous notice was that the land, or such undivided part thereof as might be necessary, would be sold, any sale, although of the entire parcel of land, was void.

On May 6, 1878, the Legislature passed a statute, to take immediate effect, in these words: "No sale heretofore made of real estate taken for taxes shall be held invalid by reason of the notice of sale having contained the words 'or such undivided portions thereof as may be necessary,' or the words 'or such undivided portions of them as may be necessary:' provided, however, that this act shall not apply to any case wherein proceedings at law or in equity have been commenced involving the validity of such sale, nor to any real estate which has been alienated since the eighth day of February of the current year and before the passage of this act." St. of 1878, c. 229.

The principal question presented and argued in each of these six cases is whether this statute is constitutional, as applied to sales, no suit involving the validity of which had been commenced before its passage, and where the real estate sold had not been alienated between February 8, 1878, and the passage of the act.

After mature advisement, and careful examination of the numerous cases cited at the bar, and giving due weight to the strong presumption in favor of the validity of every act of the legislative department, all the judges feel themselves compelled by their judicial duty to declare that the statute in question exceeds the constitutional authority of the Legislature in two important respects.

First. The statute assumes to take away private property, without due process of law, and without compensation. While it is doubtless the duty of the citizen to pay all taxes legally assessed upon him for the support of the government, yet the validity of proceedings taking his land against his will in discharge of his tax depends upon no considerations of equity, but upon a strict compliance, on the part of the municipal officers, with the regulations previously prescribed by statute for the double purpose of securing the payment of the tax and of protecting the citizen against unnecessary sacrifice of his property. Williams v. Peyton, 4 Wheat. 77. The statutes under which the sales in question were made were framed to carry out this purpose by authorizing the collector to sell the whole land, or, if it was capable of division, any part of it; but giving him no power to sell an undivided interest therein. The notices given did not conform to those statutes, because they left it in doubt whether the collector intended to sell the whole of the land, as he lawfully might, or to sell an undivided part thereof, which he had no right to do. When such a notice is the only notice given, it cannot be presumed that the land brought an adequate price at the sale; for persons who might be ready to purchase the whole land might well be unwilling to purchase an undivided share which would make them tenants in common with a stranger, and might for that cause not attend the sale; and by reason of their absence, and for want of their bids, the price obtained might be the less, even if the collector should finally determine, at the moment of the sale, to put up and sell the whole lot.

Second. The statute is an attempt to exercise judicial power by the Legislature. It does not change the law for the future, nor establish a uniform rule for the past. While it undertakes to confirm past sales, made upon an illegal and insufficient notice, if no litigation has arisen concerning their validity, and the land has not been alienated since the decision of this court in Wall v. Wall, it leaves sales already in litigation, or of lands which have been alienated since that decision, in the same condition in which they were before the statute was enacted. Its purport is to let the law, as declared by the decision of this court, apply to all future sales, and to all past sales coming within the two excepted...