State ex rel. Wilson v. C. H. Bigelow, County Auditor
| Decision Date | 13 January 1893 |
| Citation | 54 N.W. 95,52 Minn. 307 |
| Parties | State ex rel. Elizabeth K. Wilson v. C. H. Bigelow, County Auditor |
| Court | Minnesota Supreme Court |
Argued by appellant, submitted on brief by respondent December 18 1892
Appeal by C. H. Bigelow, County Auditor of Meeker County, from an order of the District Court of said county, Powers, J., made May 21, 1892, directing that a peremptory writ of mandamus issue.
Elizabeth K. Wilson, administratrix of the estate of Eugene M. Wilson deceased, on March 31, 1892, demanded of said County Auditor that he certify the amount necessary to redeem from tax sale the southwest quarter of the northeast quarter of section thirty-one, (31,) T. 120, R. 30, in said county. He refused stating as a reason that the time for redemption had expired. Deceased in his lifetime owned this land. Taxes thereon for the year 1885 were not paid, and judgment was on March 21 1887, recovered therefor against the land, and it was sold May 2, 1887, and bid in by the state for $ 8.09. Thereafter, on December 17, 1891, the County Auditor, by direction of the State Auditor, sold and deeded the land at private sale to Charles H. Dart, pursuant to 1878 G. S. ch. 11, §§ 101, 102. The County Auditor published notice as required by Laws 1885, ch. 194, but Dart never obtained and caused to be served the notice required by Laws 1889, ch. 198.
The trial court held that the proviso in the last-mentioned Act was a valid enactment, and applies to the purchaser of forfeited lands under 1878 G. S. ch. 11, §§ 101, 102, if the purchase was made after it was enacted, as well as to the purchaser at the tax sale, and ordered a peremptory writ of mandamus to issue, requiring the County Auditor to forthwith certify the amount necessary to redeem the land from the tax sale, pursuant to the last subdivision of 1878 G. S. ch. 11, § 90. From that order this appeal is taken by the County Auditor, and he here contends that the proviso in Laws 1889, ch. 198, is unconstitutional, because that Act embraces more than one subject, and that the subject of the proviso is not expressed in the title of the Act. Constitution, art. 4, § 27.
Order affirmed.
Spooner & Taylor, for appellant.
The declared purpose in the title of Laws 1889, ch. 198, is, to amend Laws 1877, ch. 6, § 37. The original purpose and intent and in fact the only provision and object of § 37 was, to provide for the giving of notice of expiration of redemption, in cases where tax certificates were held by the purchasers or assignees referred to in 1878 G. S. ch. 11, § 90. It had no reference, and could have had no reference, to the case of a purchaser of lands forfeited to the state, provided for in 1878 G. S. ch. 11, § 101. This court has so held in State ex rel. v. Smith, 36 Minn. 456. The effect of adding the proviso was, to indirectly repeal, for it renders nugatory and of no effect, the provisions of 1878 G. S. ch. 11, § 102. State ex rel. v. Smith, 35 Minn. 257.
The legislation sought to be accomplished, is not the office of a proviso. Provisos and exceptions are similar, intended to restrain the enacting clause, to except something which would otherwise be within it, or in some manner to modify it. Wayman v. Southard, 10 Wheat. 1; Pearce v. Bank of Mobile, 33 Ala. 693; Rawls v. Doe, 23 Ala. 240; Voorhees v. Bank of United States, 10 Pet. 449; Mullins v. Treasurer of Surrey, 5 Q. B. D. 170; McRae v. Holcomb, 46 Ark. 306; Dollar Savings Bank v. United States, 19 Wall. 227; Minis v. United States, 15 Pet. 443; Bank for Savings v. Collector, 3 Wall. 495; Ihmsen v. Monongahela Nav. Co., 32 Pa. 153.
For the reasons above suggested we insist that the proviso was void, in which event no notice was required to be given by the purchaser Dart, and the peremptory writ should not have been ordered to issue, and the order appealed from should be reversed.
H. W. Young, for relator.
The title of Laws 1889, ch. 198, fairly and reasonably expresses the subject, and is sufficiently broad and comprehensive, to embrace the several provisions relating to, or connected with, the subject. The Constitution, art. 4, § 27, has been so many times before this court for construction, and expression as to its meaning has been so frequently given, that it is only necessary to call the attention of the court to the decisions which have been made, to show how groundless this objection is. Supervisors of Ramsey Co. v. Heenan, 2 Minn. 330, (Gil. 281;) Tuttle v. Strout, 7 Minn. 465, (Gil. 374;) City of St. Paul v. Colter, 12 Minn. 41, (Gil. 16;) State v. Gut, 13 Minn. 341, (Gil. 315;) State v. Kinsella, 14 Minn. 524, (Gil. 395;) Atkinson v. Duffy, 16 Minn. 45, (Gil. 30;) Barton v. Drake, 21 Minn. 299; State v. Cassidy, 22 Minn. 312; State v. McFadden, 23 Minn. 40; State ex rel. v. Lake City, 25 Minn. 404; State v. Cantieny, 34 Minn. 1; Gillitt v. McCarthy, 34 Minn. 318; State ex rel. v. Smith, 35 Minn. 257; Butler v. Chambers, 36 Minn. 69; State v. Madson, 43 Minn. 438; Johnson v. Harrison, 47 Minn. 575.
All we care to say in answer to appellant's point that the legislation here sought to be accomplished is not in the province of a proviso, is that the legislation contained in the proviso is germane to the general subject.
Chapter 198, Laws 1889, is entitled "An act to amend section thirty-seven, of chapter six, General Laws of eighteen hundred and seventy-seven, relating to notice of redemption from tax sales."
The section specified in this title provided that the holder of a tax certificate should, at least ninety days before the expiration of the time for redemption, present the certificate to the auditor of the county, and the latter should prepare a notice to the person in whose name the lands should be assessed, that the notice should be served in the manner prescribed, and that the time for redemption should expire sixty days after the service of the notice.
As held in State v. Smith, 36 Minn. 456, (32 N.W. 174,) this provision did not apply to the state, nor to an assignee of the state, after the time to redeem expired.
The part of the amending act called in question here is at the end of the section in which it occurs, and is in the form of a proviso. It enlarges, instead of restraining, the operation of the preceding part of the section, so that it does not come within the strict definition of a proviso. But an act of the legislature is to have effect according to the intention appearing from it, however unskillfully it may be drawn; so that, so far as necessary for the purposes of this case, it does not matter that it is called a "proviso," when, in strict legal definition, it is not.
Laws 1877, ch. 6, § 37, contained all the provision there was in the law on the subject of notice of the expiration of the time to redeem, and its effect was to extend...
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