Miller v. Hurford

• Decision Date: 21 June 1882
• Citation: Miller v. Hurford, 13 Neb. 13, 12 N.W. 832 (Neb. 1882)
• Parties: WILLIAM W. MILLER, APPELLEE, v. OLIVER P. HURFORD ET AL., AND REDICK & CONNELL, APPELLANTS
• Court: Nebraska Supreme Court

12 N.W. 832

13 Neb. 13

WILLIAM W. MILLER, APPELLEE, v. OLIVER P. HURFORD ET AL., AND REDICK & CONNELL, APPELLANTS

Supreme Court of Nebraska

June 21, 1882

REHEARING of case in 11 Neb. 377, to which reference may be had for any further understanding of the facts.

Affirmed.

E Estabrook and W. J. Connell, for appellants.

John D Howe, for appellee.

MAXWELL J. LAKE, CH. J., dissenting.

OPINION

MAXWELL, J.

This case was before this court in 1881, and is reported in 11 Neb. 377. A rehearing was granted and the case again heard. The objections presented in the supplemental brief of the defendants will be considered in their order.

The first objection made by the defendants is, that the plaintiff brought an action of ejectment for the premises in question, and on the trial offered no evidence of title, and purposely submitted to a verdict against him. This it is claimed is sufficient to defeat a recovery in this action. The defendants claim to be the owners of the land. There is no pretense that the plaintiff has any title to it, either by tax deed or otherwise. The position of the defendants, if we understand it, is this--that the plaintiff has no title by his tax deeds, but because on the trial in ejectment he failed to put them in evidence and have the court adjudicate upon their validity or declare them invalid, that therefore he has admitted their invalidity and is precluded from claiming any interest in the premises. If the defendants disclaimed ownership of this land or any interest therein, and alleged in their answer that the tax deeds of the plaintiff were valid, and the court found this to be true, it would defeat a recovery, because it is only when the title acquired by the tax deed fails that an action to foreclose the lien can be maintained. But the answer of the defendants shows beyond question that the tax deeds were invalid. The following are the allegations upon that point: "And these defendants further answering said petition, say that at the time said pretended taxes for the several years mentioned in plaintiff's petition became payable, and subsequently until the dates of said sales, and ever since, the said defendants and each of them owned and had within said county sufficient personal property out of which the amount of said taxes could have been made by distress and sale, yet the county treasurer of said county wholly failed and neglected to so attempt to make said taxes or take any action whatever in this behalf, as said plaintiff at the time of said purchases well knew."

Prior to the amendment of 1877 to the revenue law, the possession by the land owner of sufficient personal property in the county in which the taxes were due, from which the treasurer could have collected the amount assessed against the land, would defeat a tax deed, because the land was to be sold only when the treasurer was unable to collect the tax in any other manner. Pettit v. Black, 8 Neb. 52. Wilhelm v. Russell, 8 Neb. 120. Johnson v. Hahn, 4 Neb. 139. The defendants therefore plead the invalidity of the title, and show that the plaintiff did not become the owner of said premises by the tax deeds; and their statement in the brief that "he is by his own showing the owner of the premises, and nobody has disputed it," is not supported by the record.

Considerable stress is laid upon the form of the judgment in ejectment, that, "The defendant go hence without day," etc. A judgment is conclusive only as to the matters put in issue, and the only issue in that action was the title. The lien for taxes was not in issue.

Second. It is claimed that the petition should show how the taxes were due. The allegations of the petition are, that "a large amount of delinquent taxes, levied upon said land by the city of Omaha, and said county of Douglas, pursuant to law for city, county, and state purposes, had accumulated and were liens upon said lands, and that on or about said date the plaintiff purchased said lands at tax sale," etc. The allegations that the taxes were levied pursuant to law for city, county, and state purposes, and were a lien upon the real estate in controversy, are certainly equivalent to an allegation that the "taxes were regularly and lawfully assessed." But it is said the petition should allege the grounds upon which the tax title has failed. Why should it do so? There is no provision in the statute that the petition shall contain such an allegation, nor is it within the purview of the law. A petition to foreclose a tax lien is to be governed by the same rules as to allegations as any other petition in equity, and a general allegation is sufficient unless the default is of such a character as to require a statement of the facts; but one of the grounds of the invalidity of the deed is set up in the answer, viz.: That the defendants had sufficient personal property to pay the taxes due on said land.

Third. It is said, however, that the act of June 6th, 1877, is invalid because it was never presented to the governor. That question was fully considered when this case was formerly before this court, and we see no reason to change our decision on that point. The governor referred to in the certificate of the president of the senate and speaker of the house, was the person discharging the duties of the office of governor. A person elected to that office who was impeached and deposed from the office, if only temporarily, was not the governor while not discharging the duties of the office. The presumptions of the law are that a public officer performs his duty in the manner required by law, and when the speaker of the house of representatives and president of the senate certify that they presented a bill to the governor for his approval, it will be presumed that they presented such bill to the officer whose approval was necessary in order that the bill might become a law.

Fourth. But it is said that there are several subjects expressed in the title of the act of June 6th, 1871. The title of the act is "To amend sections fifty, fifty-one, seventy-one, and one hundred and five, of an act entitled An act to provide a system of revenue, approved February 15th, 1869, and to make further provisions for collecting the revenue." An act to amend two or more sections which are designated of an act, certainly is not objectionable, and if we reject the latter part as surplusage, the act, so far as it relates to the amendments to the several sections named, is certainly free from objection.

In the case of the State ex. rel. v. McLaughlin, 14 Cent. Law Journal, 454, decided by the Supreme court of Missouri in May, 1882, one R. C. Pate was indicted in the St. Louis criminal court for gambling. The defendant filed a plea to the jurisdiction, for the reason that the act of March 9th, 1881, making gambling of certain kinds a felony, * * was unconstitutional and void, because the title of the act does not meet the requirements of sec. 28, art. 4 of the constitution (that no bill shall contain more than one subject, which shall be clearly expressed in its title,) etc. The title of the act of March 9th, 1881, was as follows: "An act to amend section 1549, of article 8, of the Revised Statutes, relating to offenses against public morals and decency, or the public, police, and miscellaneous offences." The court held the title sufficient and the act valid.

In the case of The City of Kansas v. Payne, 71 Mo. 159, the title of the act was as follows: "An act to amend sections two, three, four, five, nine, eleven, fourteen, seventeen, and eighteen, of an act approved April 12th, 1877, * * and repealing sec. 184 of an act * * concerning the assessment and collection of the revenue, approved March 30th, 1872. It was held that so far as the statutes sought to be amended the title was sufficient, but as the section 184 sought to be repealed was an independent matter it was not within the title. See also State v. Ranson, 73 Mo. 78. The syllabus to the case of Comstock v. Judge, 39 Mich. 195, is as follows: "An act purporting by its title to revise certain enumerated sections of an act entitled," etc., and to add several new sections, contained a section not mentioned in the title but corresponding to a section in the revised act. The constitution requires the purpose of every statute to be expressed in its title. Held, that the practice of amending by reference to sections, instead of by reference to subjects or the entire statute, is not a satisfactory compliance with the constitutional requirement, but that where the amendment is plain and can be carried out, it may be held valid even though the section numbers of the original act and of the amendment are in confusion."

The court say (page 197): "As was discovered in People, ex. rel. Chapoton, v. Common Council of Detroit, 38 Mich. 636, it is no uncommon thing in our amendatory legislation to number sections wrongly or to append new sections to statutes without repealing others of the same numbers, so that duplicate numbers are often found in the same statute. In such case the latter section may practically repeal older sections which are not repealed by name. The title to this act, when it refers to revising named sections and adding new sections to the statute, has a very undefined field opened to legislation touching the court in question, and we are not prepared to say that because it may be awkwardly framed it is therefore invalid. Its purpose is plain and we think it may be carried out. "

In Bowman v. Cockrill, 6 Kan. 311, the title of the act, was "To provide for the assessment and collection of taxes," and a statute of limitation included in the act was sustained, because designed to aid in the collection of taxes.

In Prescott v. Beebe, 17 Kan. 320, the title of the act was ...