State ex rel. State Bank of Streeter, a Corp. v. Weiler
| Decision Date | 13 September 1937 |
| Docket Number | 6490 |
| Citation | 275 N.W. 67,67 N.D. 593 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. The question of the constitutionality of a statute will be considered only when the determination of the cause before the court requires it.
2. Tax redemption statutes are strictly construed in the interests of the landowner, and tax titles can be acquired only after full compliance with all the provisions of law intended for the protection of those having the right to redeem.
3. A notice of expiration of the period of redemption from tax sale issued by a county auditor pursuant to chapter 280, Sess.Laws 1935, specifying in addition to the matters required to be stated in such a notice by section 2223, Comp.Laws 1913 (Supp.1925), as amended, that the time within which the owner redemptioner might redeem from tax sale " is extended to July 1, 1937, provided that within 90 days from the date of this notice you file with the undersigned county auditor a notice that you desire to take advantage of said acts," does not entitle the holder of the certificate of tax sale to a deed pursuant to the provisions of said section 2223, where the owner redemptioner relies on the provisions of chapter 280, and pursuant thereto applies for such an extension and makes no redemption within the redemption period prescribed by said section 2223.
Appeal from District Court, LaMoure County; W. H. Hutchinson, Judge.
Proceeding in mandamus by the State, on the relation of the State Bank of Streeter, against J. A. Weiler, County Auditor of LaMoure County, and others. Judgment awarding a peremptory writ, and respondents appeal.
Reversed and remanded.
A. G Porter, and George F. Shafer, for appellants.
Tax redemption statutes should be strictly construed in the interests of the land owner, and tax titles can be acquired by tax certificate purchasers only by a strict compliance with the statutes governing the procedure relating to the issuance of tax deeds. Biberdorf v. Juhnke, 59 N.D 1, 228 N.W. 233; 26 R.C.L. 431; State Finance Co. v Beck, 15 N.D. 374, 109 N.W. 357; Munroe v. Donovan, 31 N.D. 228, 153 N.W. 461.
A notice to redeem from a tax sale is insufficient unless the date of the expiration of the period of redemption is stated therein correctly or can be determined from the standards of the notice with definiteness and precision. State ex rel. Bishop v. Bramblette, 82 A.L.R. 497; Stewart v. Ridenour, 97 Neb. 451, 150 N.W. 206, Ann. Cas. 1917A, 243; Kipp v. Robinson, 75 Minn. 34, 77 N.W. 414.
The fact that a notice, whose sufficiency has been attacked, could not shorten the time for redemption, but might operate to extend it, does not render it valid when it fails to state the expiration date correctly. Kipp v. Johnson, 73 Minn. 34, 75 N.W. 736.
As to what circumstances will relieve the owner from the consequences of failing to exercise his statutory right within the limited time, no fixed rule can be made that will control in all cases. 61 C.J. 1289; Archer v. Tubbs Sheep Co. 25 S.D. 399, 126 N.W. 577.
Errors or inaccuracies in the notice of redemption, which are trifling in their nature and do not affect the substance and could not possibly have misled or prejudiced anyone, do not affect the validity of the notice of expiration of time for redemption. Munroe v. Donovan, 31 N.D. 228, 153 N.W. 461.
After the time for redemption has expired the right to redemption has gone beyond even the power of a court of equity to revive, it is generally held that redemption may be allowed on equitable grounds in such cases as where the purchaser has failed to comply with some statutory requisite to the vesting of his title. 61 C.J. 1255.
Hugo P. Remington, for respondent.
The public policy of the state must yield to the Constitution of the United States. The police power may be used to regulate, but not to destroy, its own contracts. State ex rel. Cleveringa v. Klein, 63 N.D. 514, 249 N.W. 118; State v. Lawler, 53 N.D. 278, 205 N.W. 880.
The laws which subsist at the time and place of the making of a contract enter into it and form a part of it, as if they were expressly referred to or incorporated therein. Blakemore v. Cooper, 15 N.D. 5, 106 N.W. 566; Van Hoofman v. Quincy (U.S.) 18 L. ed. 403.
The obligations of a contract are determined by the law in force when it is made, since existing statutes enter into the obligation by implication. State ex rel. Cleveringa v. Klein, 63 N.D. 514, 249 N.W. 118; Home Bldg. & L. Asso. v. Blaisdell (U.S.) 48 L. ed. 413, 86 A.L.R. 1481.
Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. Bronson v. Kinzie (U.S.) 11 L. ed. 143; Barnitz v. Beverly (U.S.) 41 L. ed. 93; Des Moines Joint Stock Land Co. Bank v. Nordholm (Iowa) 253 N.W. 701; Louisville Joint Stock Land Bank v. Radford, 79 L. ed. 1593, 55 S.Ct. 854.
The statute in force at the time of the tax sale, becomes a part of the contract and it is beyond the power of the legislature to sweep it away to his disadvantage by subsequent legislation. Blakemore v. Cooper, 15 N.D. 5, 106 N.W. 566; Roberts v. Bank, 8 N.D. 504; Fisher v. Betts, 12 N.D. 197, 96 N.W. 132; Beggs v. Paine, 15 N.D. 436, 109 N.W. 322; Darling v. Purcell, 13 N.D. 288, 100 N.W. 726; State v. Burleigh County, 55 N.D. 1, 212 N.W. 217.
Upon sale of the land for nonpayment of taxes, the certificate of sale constitutes a contract between the state and the purchaser, and vests in the purchaser a lien on the premises. Baird v. Stubbins, 58 N.D. 351, 226 N.W. 529; State v. Fylpaa, 3 S.D. 586, 54 N.W. 599.
The legislature cannot impair contract by changing the remedy, where the change in remedy affects the value of the contract or the power of enforcement. Northern Co. v. Kavanaugh (U.S.) 19 L. ed. 1298; Fisher v. Betts, 12 N.D. 197, 96 N.W. 132; Green v. Biddle (U.S.) 5 L. ed. 547.
To know the obligation of a contract we look to the laws in force at its making. Worthen Co. v. Kavanaugh (U.S.) 79 L. ed. 1298; Smith v. Spillman (Ark.) 1 A.L.R. 136; Rott v. Steffens, 229 Mich. 241, 201 N.W. 227.
As a general rule fraud cannot be predicated upon misrepresentations as to matters of law, nor upon opinions of law based on facts known to both parties alike. 11 R.C.L. 295; 40 C.J. 1227; O'Brien v. Det Forende Damphibis Selskab (N.J.) 109 A. 517.
A mistake which occurs when a person having full knowledge of facts comes to an erroneous conclusion as to their legal effect is a mistake of law. 40 C.J. 1228.
An unconstitutional statute is utterly void, without force or legal existence, and should not be enforced. 12 C.J. 749.
No rights can be based on, nor any duties imposed by, an unconstitutional statute. 12 C.J. 801.
When a statute has been adjudged unconstitutional it is as if it had never been enacted, and rights cannot be built up under it; and contracts which depend upon it for their consideration are void. Stone Co. v. Ridge (Ind.) 91 N.E. 944; Bonnett v. Valier, 136 Wis. 193, 116 N.W. 885, 17 L.R.A.(N.S.) 486.
All persons are presumed to know the law, and if they act under an unconstitutional enactment of the legislature, they do so at their peril. Sumner v. Beller (Ind.) 19 Am. Rep. 718.
Any department of government, exceeding the limits of its constitutional power, acts wholly without authority, and can confer no authority upon others. Kelley v. Bemis (Mass.) 64 Am. Dec. 50.
Where the constitutionality of a statute depends upon the authority of the legislature to enact it, its validity must be tested by what might be done under the color of the law, not by what was done. State v. Stark County, 14 N.D. 368, 103 N.W. 913.
This is an appeal from a judgment of the district court of LaMoure county awarding the relator a peremptory writ of mandamus directed to the defendant Weiler as county auditor of LaMoure county and commanding him to issue a tax deed to certain real property in said county to the relator.
The statutes that are pertinent on this appeal are the following § 2191, 1925 Supplement to the Compiled Laws of North Dakota for 1913, as amended by chapter 289, Sess. Laws, 1931, which provides for the sale of lands for delinquent taxes; § 2192, Supplement, as amended by chapter 298, Sess. Laws 1931, providing for the issuance of tax certificates to the purchasers at tax sales; § 2197, of the Supplement, as amended by chapter 298, Sess. Laws 1931, providing that "Any original tax sale certificate may be redeemed at any time within three (3) years from the date of sale by any person or corporation having an interest in the real estate sold for taxes and described in such certificate . . ."; § 2223, Supplement, as amended by chapter 285, Sess. Laws 1931, which provides: "Every person holding a tax sale certificate may at any time after the expiration of the statutory period of redemption, and before the expiration of six years from the date of such tax sale certificate, present such certificate to the county auditor and thereupon the auditor shall prepare under his hand and seal, a notice to the person in whose name such lands are assessed . . . specifying in such notice the description of such lands, the amount for which the same were sold, the amount required to redeem such lands from sale, exclusive of the costs to accrue upon such notice, and the time...
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