State ex rel. Rice v. Smith

• Decision Date: 28 May 1886
• Citation: 28 N.W. 241,35 Minn. 257
• Parties: State of Minnesota ex rel. Henry M. Rice v. James A. Smith
• Court: Minnesota Supreme Court

28 N.W. 241

35 Minn. 257

State of Minnesota ex rel. Henry M. Rice v. James A. Smith

Supreme Court of Minnesota

May 28, 1886

The relator appeals from an order of the district court for St Louis county, Stearns, J., presiding, quashing an alternative writ of mandamus. The writ required the respondent, who is county auditor, to show cause why he should not certify to the amount due upon the redemption of certain land which had been sold under tax judgments in the years 1881 and 1882 for the taxes of 1880 and 1881, it appearing that the relator was the owner of the property, except for such tax sales, and that no notice of the expiration of the time of redemption had been given as required by Laws 1877, c. 6. This proceeding was instituted in December, 1885.

McMillan & Beals and Gordon E. Cole, for appellant.

Ensign Cash & Williams and C. A. Congdon, for respondent, cited among other cases, Tuttle v. Strout, 7 Minn. 374 (465;) State v. Gut, 13 Minn. 315, (341;) State v. Kinsella, 14 Minn. 395, (524;) Atkinson v. Duffy, 16 Minn. 30, (45;) State v. Cassidy, 22 Minn. 312, 325; Hoffman v. Parsons, 27 Minn. 236; Mississippi & Rum River Boom Co. v. Prince, 34 Minn. 79; Gillitt v. McCarthy, Id. 318.

OPINION

Dickinson, J.

This appeal is to test the constitutionality of chapter 10 of the General Laws of 1881, so far as respects section 22, which in terms declares the repeal of section 37 of chapter 6 of the General Laws of 1877, requiring the service of a notice of the expiration of the period for redemption from tax sales. The appellant claims that this repealing section is ineffectual, because the subject of it is not expressed in the title of the act, in compliance with the constitutional requirement that "no law shall embrace more than one subject, which shall be expressed in its title." Const. art. 4, § 27.

In Gaston v. Merriam, 33 Minn. 271, (22 N.W. 614,) it was taken for granted, without consideration, that this was a valid legislative enactment, no question of this kind having been involved in that case.

The title of this act is "An act to amend chapter 1 of the General Laws of 1878, to provide for the assessment and collection of taxes, being chapter 11, General Statutes of 1878." As is indicated by this title, the act of 1878 there referred to is entitled "An act to provide for the assessment and collection of taxes." The latter part of the title of the law in question -- "being chapter 11, General Statutes of 1878" -- does not enlarge the scope of the preceding part of the title so as to affect the determination of the matter in controversy, and may be disregarded for the purposes of this case. These words refer to Young's compilation of statutes made in that year, which was never adopted or enacted as a law, or revision of the laws, although it was, by chapter 67, Laws 1879, made "competent evidence of the several acts and resolutions therein contained in all courts of this state." That part of the title referring to this compilation implies the identity of the act to be amended (chapter 1, Laws 1878) and chapter 11 of that compilation; but in fact they are not the same. Among the statutes not enacted in 1878, but which are embraced in chapter 11 of the compilation, are acts passed in 1867, 1868, 1871, 1873, 1876, and 1877. Among these, and designated as section 121, is section 37 of chapter 6 of the Laws of 1877. The subject of the act of 1881, as expressed in its title, can only be construed as being "to amend chapter 1 of the General Laws of 1878," and not to amend also such other laws as may be embraced in chapter 11 of the compilation referred to. The evident purpose and effect of the latter part of the title was to indicate where, in the compilation of 1878, the act to be amended, and which is specifically designated, might be found.

The question, then, is reduced to this: Does the title, "An act to amend chapter 1 of the General Laws of 1878, [which is entitled an act] to provide for the assessment and collection of taxes," express the subject of the enactment, so far as relates to the express repeal of section 37 of the act of 1877?

In Gaston v. Merriam, supra, it became necessary for us to determine the relation of that part of the act of 1877 in question (section 37) and of the act of 1878 to each other. It was there considered that the later act of 1878 did not repeal, by implication, section 37 of the act of 1877; that both acts co-existed as separate and independent enactments, the later act being qualified in its operation by the former. The act of 1878 did not include that of 1877, nor did it contain any provision respecting the giving of notice at the expiration of the time for redemption. The whole provision of the statute upon that particular subject, when the amendatory act of 1881 was passed, was embodied in the act of 1877. Bearing this in mind, let us consider also the nature of the amendatory act. The legislation affected by that act is contained in 22 sections. Twenty of these consist of "amendments," in the proper and usual sense of the word, of various specified sections of the law of 1878. The twenty-first section added to the act a new provision relating to the refunding of taxes, and of the purchase price paid at tax sales, under certain circumstances. The only remaining section is that under consideration, which simply declares the repeal of section 37 of the act of 1877. Neither in the provisions of the law of 1878, as was shown in Gaston v. Merriam, nor in the amendatory provisions of the act of 1881, was there anything inconsistent with the law of 1877, requiring notice to be served, in the manner there prescribed, of the expiration of the period for redemption. The act of 1877 remained in force, unaffected by any legislation, unless by this declared repeal.

The legislative purpose in enacting this section -- the object to be accomplished -- is unmistakably and conclusively expressed upon its face. It is this, and only this: the repeal of the specified law of 1877. The proper subject of such an enactment is the repeal of that law, and not the amendment of the distinct act of 1878, although both statutes related to the same general subject of tax proceedings, and were to be construed as parts of the law in pari materia. The subject of the act expressed in its title -- to amend the specified act of 1878 -- cannot but be at once recognized as a misnomer, as applied to this repealing section. To test this, let us bring the title and the enactment in question closely together, by disregarding the prior, and properly amendatory, sections; or let us suppose that this act, entitled as it is, had consisted only of this one section, simply declaring the repeal of the law of 1877. The mere statement of such a case, the nature of the two acts being kept in mind, renders apparent the answer to the question as to whether the subject of such repealing enactment is expressed in the title, -- "An act to amend" the designated law of 1878. The insufficiency of the title would be obvious and incontestable. It would be not merely insufficient, but a misnomer, erroneous, and misleading. Yet the case before us is not essentially different from that supposed. For the purpose of determining whether the subject of this repealing section is expressed or embraced in the title of the statute, we may disregard the prior, and properly amendatory, sections; for they contain nothing touching or affecting the provisions of the law of 1877, nor any which suggest a necessity, reason, or occasion for its repeal. In all essential particulars, that part of the act amendatory of the law of 1878, and the section repealing that of 1877, stand apart, and related to each other only as the act amended and the act repealed were related to each other; that is, they both concern the general subject of tax proceedings. Therefore the provisions of this act which are amendatory of the law of 1878 had no effect to render appropriate this title as expressive of the subject of the section repealing the law of 1877; and as to that, the title is as clearly insufficient as it would have been if the whole body of the act had consisted only of this declared repeal of the law different from that referred to in the title.

The respondent asserts a proposition as a rule of determination which has been laid down in some decided cases cited in his brief, and which, if applied without qualification, would perhaps support this enactment. It may be thus expressed: In an amendatory act, entitled as such, the title being not restrictive in its terms, may be embraced any legislation which might have been enacted in the original law under its title. From the very nature of the case, it is difficult, if not impossible, to lay down any general rule by the application of which questions like that under consideration can be determined. It must necessarily be considered in each case what is the real subject of the enactment in question and whether it is...