State ex rel. Sparling v. Hitsman

• Decision Date: 02 May 1935
• Docket Number: No. 7430.,7430.
• Citation: 99 Mont. 521
• Parties: STATE ex rel. SPARLING v. HITSMAN, County Treasurer.
• Court: Montana Supreme Court

99 Mont. 521

STATE ex rel. SPARLING
v.
HITSMAN, County Treasurer.

No. 7430.

Supreme Court of Montana.

May 2, 1935.

Original proceeding for mandamus by the State of Montana, on the relation of J. T. Sparling, a taxpayer, in his own behalf and for the benefit of other citizens, against H. L. Hitsman, County Treasurer of Daniels county, Mont.

Writ granted.

Booth & Booth, of Glasgow, S. C. Ford, of Helena, and Howard Toole, of Missoula, for relator.

Raymond T. Nagle, Atty. Gen., and Enor K. Matson, Asst. Atty. Gen., for respondent.

STEWART, Justice.

Application for a writ of mandate. This is an original proceeding brought by J. T. Sparling, a taxpayer of Daniels county, in his own behalf and in the interest and for the benefit of other citizens, against the county treasurer of that county. The proceeding involves the constitutionality of an act of the Twenty-Fourth Legislative Assembly, recently adjourned.

The legislation in question is chapter 88 of the Laws of 1935. The essential part of the act reads as follows: “Section 1. That from and after the passage and approval of this Act, any person having an interest in real estate heretofore sold for taxes to any county, or which has been struck off to such county when the property was offered for sale and no assignment of the certificate of such sale has been made by the county commissioners of the county making such sale, shall be permitted to redeem the same by paying the original tax due thereon, and without the payment of any penalty or interest thereon. Such redemption of real estate must be made on or before the first day of December, 1935, and if such redemption is not made by the first day of December, 1935, then redemption can only be made by payment of the original tax with accrued interest, penalties and costs as now provided by law. This Act shall not apply to the purchaser of any certificate of sale made prior to the passage and approval of this Act.”

The enacting provisions of the chapter are preceded by a lengthy preamble, setting forth the existence of adverse financial conditions in the state of Montana, and declaring a state of emergency such as in the opinion of the Legislature constitutes grounds for the exercise of the police power of the state. The conclusion of the preamble is to the effect that an emergency exists, and that as a result thereof it is necessary for the Legislature to provide a temporary method for the collection of delinquent taxes.

The relator, Sparling, is the owner of real estate in Daniels county upon which the taxes have become delinquent. He tendered to the county treasurer the amount of such taxes without penalty or interest, and attempted to avail himself of the provisions of the act. The county treasurer, acting under the advice of the Attorney General, refused to accept the amounts, and this proceeding is to compel him to do so.

It is the view of the Attorney General that the act contravenes and violates several provisions of the Constitution of the state of Montana, and at least one provision of the Constitution of the United States. The most important provision of the Constitution of the state asserted against the legality of the provisions of the chapter is to be found in section 39 of artcle 5 thereof. That section reads as follows: “No obligation or liability of any person, association or corporation, held or owned by the state, or any municipal corporation therein, shall ever be exchanged, transferred, remitted, released or postponed, or in any way diminished by the legislative assembly; nor shall such liability or obligation be extinguished, except by the payment thereof into the proper treasury.”

Before we consider the objections raised under this section, it is important to review somewhat the history of similar legislation in this state. Upon two previous occasions the Legislative Assembly of Montana has attempted to reach the same objective sought under chapter 88. In 1923, the Eighteenth Legislative Session enacted chapter 63 of that session. That act was a straight legislative enactment without any mention or finding of an emergency. The general purpose of it, however, was identical with the purpose of the present act. The matter came before this court in the case of Sanderson v. Bateman, 78 Mont. 235, 253 P. 1100. The court held that the act transgressed section 39 of article 5 of the Constitution, and was therefore invalid.

In 1933, the Twenty-Third Legislative Assembly passed an act which afterwards became chapter 41 of the Laws of 1933. That act was of the same tenor and import. It was challenged in this court in the case of State ex rel. Kain v. Fischl, 94 Mont. 92, 20 P.(2d) 1057, and upon the authority of Sanderson v. Bateman, supra, it was likewise held to be unconstitutional and inoperative. That act, while it did not recite specific grounds of emergency, did declare the existence of an extraordinary emergency.

It is obvious that the first consideration confronted in the present case has to do with the two previous acts and the holdings of this court with relation thereto. It is insisted that by reason of the rule of stare decisis this court is bound by its former decisions and is not at liberty to construe the principles involved in any manner other than declared in the cases of Sanderson v. Bateman, and State ex rel. Kain v. Fischl, supra.

We realize the force and the wisdom of the rule of stare decisis. We are not unmindful of the fact that principles of law should be positively and definitely settled in order that courts lawyers, and, above all, citizens may have some assurance that important legal principles involving their highest interests shall not be changed from day to day, with the resultant disorders that of necessity must accrue from such changes. We are mindful, however, of the fact, as stated by Mr. Justice Brandeis in a dissenting opinion in the case of Di Santo v. Com. of Pennsylvania, 273 U. S. 34, 47 S.Ct. 267, 270, 71 L. Ed. 524, that “in the search for truth through the slow process of inclusion and exclusion, involving trial and error, it behooves us to reject, as guides, the decisions upon such questions which prove to have been mistaken.” The rule of stare decisis will not prevail where it is demonstrably made to appear that the construction placed upon the constitutional provision in the former decision is manifestly wrong. State ex rel. Kain v. Fischl, supra.

We are impressed by the fact that in this instance the prior decisions do not relate to titles or involve vested rights, and do not establish rules of trade, property, or contract, etc., and that as a result thereof we should not feel estopped to overrule the previous decisions and recognize what in the light of new events and more recent judicial pronouncements appears to us to be a correct principle. See the following authorities: Moschzisker on Stare Decisis, p. 1 et seq.; 15 C. J. 946, and cases cited; Collie v. Franklin County Com'rs, 145 N. C. 170, 59 S. E. 44;Pollock v. Farmers' Loan & Trust Co., 157 U. S. 429, 15 S.Ct. 673, 39 L. Ed. 759.

At the time the case of Sanderson v. Bateman was decided, the courts had not been generally called upon to construe such emergency acts, and authority sufficient to constitute guiding lights was not abundant or of apparent controlling influence. Even in the year 1933, when the case of State ex rel. Kain v. Fischl was decided, the principle had not been so generally considered by courts as to point a general trend or a fixed policy in the matter of judicial determination. In the latter case, opinions were relied upon, and cited as authority, from jurisdictions which have later, upon further consideration, announced different views.

Concretely, the opinions in the cases of Sanderson v. Bateman and State ex rel. Kain v. Fischl, supra, held that taxes levied became a liability of the state against the taxpayer under the provisions of section 39 of article 5 of our Constitution; that penalties and interest imposed upon delinquents, when accrued, became a part of that liability; that any attempt by the Legislative Assembly to reduce or remit the penalties and interest came within the inhibition of the section; and that it was beyond the power of the Legislative Assembly to in anywise authorize diminution of such liability.

As we view this case, it is not necessary to decide whether the Legislature can, by reason of an emergency alone, legalize a proposition otherwise beyond its power. We may bear in mind, however, the principle declared by the United States Supreme Court in the case of Home Building & Loan Association v. Blaisdell, 290 U. S. 398, 54 S.Ct. 231, 235, 78 L. Ed. 413, 88 A. L. R. 1481, wherein it was said: “While emergency does not create power, emergency may furnish the occasion for the exercise of power. ‘Although an emergency may not call into life a power which has never lived, nevertheless emergency may afford a reason for the exertion of a living power already enjoyed.”’

While we do not feel justified in overruling previous holdings of this court merely because of the asserted...