State ex rel. Rosenblatt v. Heman

• Decision Date: 31 October 1879
• Citation: 70 Mo. 441
• Parties: THE STATE to the use of ROSENBLATT, Collector, v. HEMAN, Appellant.
• Court: Missouri Supreme Court

70 Mo. 441

THE STATE to the use of ROSENBLATT, Collector,

v.HEMAN, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

R. F. Wingate and Charles Gibson for appellant.

1. It appears, from the petition, that judgment was regularly obtained against this property, and that it was regularly sold for the taxes of 1868, and that the taxes sued for are the same for which the property was sold or forfeited to the State under the law in force at that time. It follows that any pecuniary demand which the State had, especially after the end of two years allowed to redeem, had become satisfied and extinguished; the State has either the land or nothing at all. The lien attempted to be imposed is, as alleged, for taxes “due or unpaid.” When the property has been transferred to the State by forfeiture, the taxes for which the forfeiture took place are neither “due nor unpaid.” The State cannot claim the money and the land both, nor a lien upon the land for the taxes, when she has sold or forfeited it to herself in consideration of the taxes. The judgment of the county court extinguished the taxes, which then passed in rem judicatam. The offer to sell the land under such judgment, and its forfeiture, extinguished the lien, and the property was thereby transferred to the State. Bennett v. Hunter, 9 Wall. 336. The act of 1877 imposes a lien for taxes due and unpaid. Now, taxes which have been satisfied, paid or extinguished by the sale or forfeiture of the land taxed, were not due, nor were they unpaid, for the transfer by way of forfeiture of the property, paid and satisfied them--they were neither “due or unpaid” in the sense of the law. Blackwell on Tax Titles, (2 Ed.) p. 459.

2. Our constitution not only inhibits all legislative interference with vested rights, but also prohibits the creation of a new obligation, the imposition of a new duty or the taking away of a valid defense in respect to transactions or considerations already passed. Constitution, art. 2, § 15; Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483; Barton Co. v. Walser, 47 Mo. 189; De Cordova v. Galveston, 4 Texas 470. In this suit judgment is asked for the taxes which became due and payable in 1868, for which, under the law in force at the time, the State not only obtained judgment in a court of competent jurisdiction, but actually sold and forfeited the land to itself; whereby (Sess. Laws 1865-6, § 116, pp. 161, 162) all right, title and interest therein was transferred to and absolutely vested in the State, not to be again taxed or sold, as other lands, until again sold to some person by the State or redeemed. By this judgment, sale and forfeiture, the title to the land, under the law in force at the time, became vested in the State, and the tax debt was satisfied and extinguished. It was no longer an obligation resting upon the tax debtor; nor was he thereafter in duty bound to pay it, and had he been again sued for the taxes, the fact that he had been divested and the State invested with the title to the land on account of and in payment of the taxes, in reason, in common sense and law, vested in him a right of defense which the Legislature was powerless to deprive him of. While the taxes remained due--were merely levied and assessed--the right of the Legislature to create or change the mere remedy for their enforcement or collection within the time limited by law, cannot be questioned. But when taxes are once paid either in money, by the sale of property or otherwise, under the law, all efforts of the Legislature to revive the debt, to re-impose upon him the duty or an obligation to pay them; or which deprive him of an existing defense, fall within the constitutional prohibition against retrospective legislation.

3. This action is barred by the five year limitation act. A tax imposed by the Legislature is “a liability created by statute,” within the meaning of that act. Wag. Stat., § 10, p. 918; St. Louis v. Newman, 45 Mo. 138. The cause of action did not originate in the back tax act of 1877. If that act created a cause of action that did not before exist, and is not simply an act changing the remedy for the enforcement of a pre-existing cause of action, it is retrospective and void under the constitution. But the act will bear no such construction. It professes to relinquish, in a measure, rights acquired by the State under previous laws, for the collection of taxes and all forfeitures incurred thereunder. It gives the tax payer further opportunity to redeem forfeited lands on liberal terms, and provides a mode of again enforcing the original tax liability in case the tax payer fails to avail himself of the new privilege of redemption. But the cause of action still rests upon the original assessments and original tax levy and arose out of the act of 1865. This cause of action was barred by limitation before the passage of the act of 1877, and hence the 15th section of that act exempting the State from the operation of the statute of limitations, does not apply. A cause of action once barred cannot be revived by legislative enactment. 4 Texas 470. Again, the proceedings formerly provided to enforce the collection of taxes were in the nature of a civil action, and hence come within section 10 of the limitation act.

Again, a right of action is expressly given by the act of 1872 upon the same taxes sued for in this case. That right of action was continued by the act of 1875. These two acts were not acts of limitation, nor intended to be such, but they were acts conferring the right to sue. If we assume that one repealed the other, it is also certain that the continuance of the right of action and the lien, if any, being in the repealing act, both took effect simultaneously, and consequently the State had its time in court for five consecutive years, and this brings it within the statute of limitations. If there be a right of action, it matters not whether there was a lien or not. At the time the levy of these taxes was made, and until long after the sale in 1869 was had, there was no lien for taxes given by the statute. Under the old sytem of proceeding against the land and selling the fee by the collector, either passing the fee or passing nothing, no lien could properly be imposed. The idea of the lien first became feasible when the system was changed and the taxes were considered as a pecuniary liability against the owner, or by proceeding in a suit at law against him to enforce the lien.

King, Chapin & King, M. B. Jonas and F. Spies for respondent.

1. The State acquired no complete title to the real estate by the forfeiture. It was at best only an inchoate title, requiring subsequent proceedings to make it complete. The interest of the State was simply a lien for unpaid taxes. Gen. Stat. 1865, p. 128, § 116; p. 129, § 119; Laws 1870, §§ 17, 18, p. 119; Wag. Stat., § 225, p. 1208; Laws 1875, p. 82. “An estate can only be merged in a greater estate.” Bouvier's Law Dict., Art. Merger. It was impossible for the lien of the State to be merged, because there was no greater estate in which it could be merged. The fact that the State allowed and required the property to be assessed after forfeiture, was a waiver of the forfeiture. Clarke v. Strickland, 2 Curtis C. C. 439. But the lien would still remain in favor of the State. Goddard v. Renner, 57 Ind.532; Wood v. Colvin, 5 Hill 228. Bodine v. Moore, 18 N. Y. 347.

2. The act of 1877 is not retrospective. Hope Mut. Ins. Co. v. Flynn, 38 Mo. 483; Barton Co. v. Walser, 47 Mo. 189; De Cordova v. Galveston, 4 Texas 470; State v. Hays, 52 Mo. 578; State v. Auditor, 41 Mo. 26. As a tax is not founded on contract, but operates in invitum, the act cannot be said to impair the obligation of contracts. Carondelet v. Picot, 38 Mo. 125; Blackwell on Tax Titles, p. 1; Cooley on Taxation, p. 1.

It is no objection to the act that it requires the tax debtor to pay attorney's fees and other costs not required of him when the tax became due and payable. Costs are incident and a necessary concomitant of every remedy, and cannot be said to be a new liability. It is not a new obligation, but something incident to the remedy. The State has complete control of remedies which it provides, and can change or modify them or give new ones, and clearly has the right to provide the means for enforcing such remedies, and to compel the payment of any costs that may accrue in enforcing the remedy prescribed. Smith v. Byron, 34 Ill. 364; Paschal v. Perez, 7 Texas 348; Baldwin v. Newark, 38 N. J. L. 158; Washington University v. Rowse, 42 Mo. 308; Woodfin v. Hooper, 4 Humph. 13; De Cordova v. Galveston, 4 Texas 470; Brandon v. Green, 7 Humph. 130; Wynne v. Wynne, 2 Swan 405; Hope v. Johnson, 2 Yerg. 123; Van Zant v. Waddel, 2 Yerg. 260; Fisher v. Dabbs, 6 Yerg. 119; Wellshear v. Kelley, 69 Mo. 343.

Nor is it any objection to the act that the right to redeem which existed when the taxes sued for became due and payable, is taken away. The tax debtor never acquired any vested right to redeem. It was but a privilege.

3. As to the statute of limitations, the circuit court erred in assuming that the liability of the tax payer to the State for the taxes was such a liability created by statute as came within the 2nd clause of section 10 of the general limitation act, and in overlooking the fact that the entire scope of that act is to prescribe limitations on civil actions proper; Carondelet v. Picot, 38 Mo. 125; Brenchweh v. Drake, 31 Ohio St. 652; Andover v. Gould, 6 Mass. 44; Peirce v. Boston, 3 Met. 520; Camden v. Allen, 26 N. J. L. 398; Lindell v. Railroad Co., 36 Mo. 544; Humphreys v. Lundy, 37 Mo. 320; State v. Randolph, 22 Mo. 482; Dillon v. Bates, 39 Mo. 292; Wickersham v. Russell,51 Pa. St. 71; Council v. Moyamensing,2 Pa. St. 224; and in assuming further that all these summary proceedings on the part of the State for enforcing her lien for the payment of the public taxes were civil actions,...