Swanke v. Oneida County

• Decision Date: 03 November 1953
• Citation: 60 N.W.2d 756,265 Wis. 92
• Parties: SWANKE, v. ONEIDA COUNTY.
• Court: Wisconsin Supreme Court

Page 756

60 N.W.2d 756

265 Wis. 92

SWANKE, v. ONEIDA COUNTY.

Supreme Court of Wisconsin.

Nov. 3, 1953.

Rehearing Denied Dec. 30, 1953.

Action in equity by the plaintiff James A. Swanke to compel redemption from delinquent taxes and to remove cloud on title created by tax deeds to the defendant Oneida county.

This appeal is concerned with 17 quarter sections of land, 15 of which were deeded to the defendant county by tax deed dated April 30, 1936, and recorded on the same day, for the tax sale of 1932, and by further tax deed dated June 11, 1940, and recorded June 21, 1940, for the tax sale of 1933. The remaining two tracts were covered by tax deed dated February 25, 1943, and recorded on the same day, for the tax sale of 1935. The plaintiff had acquired title to all of said lands when approximately two years old by deed dated December 22, 1931, and recorded December 31, 1931. At that time the taxes had been paid through 1930, but no subsequent taxes were ever paid.

On November 3, 1950, the plaintiff became 21 years old, and on May 28, 1951, he tendered to the defendant county all delinquent real estate taxes, together with interest, fees, and penalties, and demanded of the county treasurer that plaintiff be permitted to redeem that said 17 quarter sections. Such tender and demand were rejected. Action was then instituted to compel such redemption and remove the cloud of defendant's tax deeds. The case was tried to the court without a jury and from a judgment dismissing the complaint the plaintiff has appealed.

Fisher, Brunner & Strossenreuther, Shawano, Walter F. Kaye, Rhinelander, of counsel, for appellant.

Albert J. Cirilli, Dist. Atty., Rhinelander, Forest W. Rodd, Rhinelander, of counsel, for respondent.

CURRIE, Justice.

All of the tax sales certificates upon which the three tax deeds were issued to the defendant county were for tax sales of 1935 or prior years. The crucial question presented on this appeal is whether the plaintiff's right of redemption was covered by the statutes as they existed at the time of the issuance of said tax sales certificates, or whether by such statutes as subsequently changed and amended.

The redemption rights of minor owners of lands sold for taxation were, at the time of issuance of such tax sale certificates, covered by sections 75.03, 75.27, and 75.28, Stats., and no material change was made in such three statutes from the time of issuance of any of such certificates until ch. 453, Laws of 1939, was enacted by the 1939 legislature. Before said statutes were so amended in 1939, § 75.03, Stats., as it existed from the time of the issuance of the first of the tax sales certificates until the 1939 amendment, provided as follows:

'The lands of minors or any interest they may have in lands sold for taxes may be redeemed at any time before such minors come of age and during one year thereafter'.

Section 75.27, Stats., during all of said period prior to the 1939 amendment, provided for a 3-year statute of limitations on the part of the former owner, or any person claiming under him, to recover possession of any land which had been conveyed by a tax deed, such 3-year period being measured from the recording of the deed. However, section 75.28(1) of said statutes for said period prior to the 1939 amendment provided:

'The limitation for bringing actions as provided in section 75.27 shall not apply to any person who shall be a minor at the time the right of such action shall accrue, but such minor may bring such action or actions after the time limited at any time during his minority and within one year thereafter; nor shall such limitation * * * apply * * * where the land was redeemed from the operation of such sale as provided by law.'

Ch. 453, Laws of 1939, amended section 75.03, Stats., so as to provide that the special period of redemption afforded to a minor by such statute applied only 'if such lands were not sold for nonpayment of taxes for five or more consecutive years prior to or after' the acquisition of the lands by the minor. Two new subsections, numbered (2) and (3), to section 75.03, were also enacted by said ch. 453. Such newly created sub. (3) provided a method whereby the purchaser or owner of tax sales certificates for five or more consecutive years might foreclose the same against the owner, pursuant to section 75.19, if the amount of the certificates with interest, fees, and penalties exceeded the assessed value of such lands, and such subsection was made applicable against minor owners. Such chapter also amended section 75.28(1) by adding to the portion of such section hereinbefore quoted the following words 'unless the redemption rights of such minor have been foreclosed pursuant to sections 75.03 and 75.19'. Ch. 453, Laws of 1939, contains no statement of any intention on the part of the legislature that the same was to have a retroactive effect as to any tax sales certificates theretofore issued upon lands owned by minors.

Thereafter, the 1945 legislature, by ch. 66, Laws of 1945, amended section 75.03(3), so as to add a provision providing that the grantee of a tax deed might foreclose the redemption rights of a minor, idiot, or insane person, by separate action, pursuant to section 75.19, and made the same applicable to tax deeds issued prior to the effective date of the amendment as well as thereafter. The two concluding sentences of said ch. 66 provided as follows:

'This subsection as amended in 1945 is retroactive January 1, 1946. The postponement of the effective date of the retroactive provision is to afford an opportunity to all persons having an interest in lands affected to redeem such lands from the lien of tax certificates prior to such effective date.'

Then the 1949 legislature made changes in both sections 75.27 and 75.28(1), Stats. by enacting ch. 391, Laws of 1949. The amendment to section 75.27 is not material for the purposes of this decision. However, said ch. 391 amended sections 75.28(1) by eliminating therefrom the previous provision that the limitation of action imposed by section 75.27 should not apply to a minor, and which eliminated provision also gave a minor the right to bring action at any time during his minority and within one year thereafter. Such ch. 391 also provided that it was the legislative intent that the amendments contained therein 'apply retroactively to all nonout-lawed tax certificates, or tax deeds heretofore as well as hereafter taken.' Thus it was the plain intent of the legislature by these amendments contained in said ch. 391 to eliminate the previous special limitation in favor of minors and make the 3-year statute of limitations applicable to all former owners, including minors, without exception.

However, the legislature must have soon realized that a statute, such as ch. 391, which shortened an existing limitation period and made the same retroactive to existing causes of action, would be unconstitutional and void unless a grace period were granted within which persons, whose causes of action would be immediately barred by such change in the statute of limitations, were afforded a reasonable time in which to commence their actions. Therefore, by sub. 25a of ch. 634, Laws of 1949 (a 'catch-all' chapter to correct errors, supply omissions, and eliminate unnecessary, obsolete, or unconstitutional provisions 'mostly in or caused by acts of the 1949 session of the legislature'), the legislature amended ch. 391, Laws of 1949, so as to provide that the same should take effect 90 days after its publication, which was July 2, 1949, in lieu of taking effect July 1, 1949, as originally provided.

Thus at the time of the issuance of the tax sales certificates, upon which the defendant county later took the three tax deeds in question in the instant case, the statutes afforded a minor owner, such as the plaintiff, the right to redeem at any time during his minority and within one year thereafter. By ch. 453, Laws of 1939, this special period of redemption granted to minors was limited by the legislature to apply only in cases in which the minor's lands were not sold for nonpayment of taxes for five or more consecutive years. If such change were retrospective in operation and not merely prospective, the plaintiff's right to redeem in the instant case would be barred thereby, unless such a retroactive enactment were to be held unconstitutional. However, inasmuch as said ch. 453, Laws of 1939, contained no expression of legislative intent that the same should be retrospective in operation this change must be held to be prospective only in effect so as not to affect the then existing rights of redemption of any minor owners.

61 C.J., Taxation, 1244, sec. 1689, states the general rule in this respect as follows:

'* * * a statute abolishing, abridging, or enlarging the right of redemption or otherwise changing it will be construed, if possible, as prospective only or as saving existing rights.'

In support of the foregoing rule see also Harrington Co. v. Chopke, 1932, 110 N.J.Eq. 574, 160 A. 335; Wittes v. Repko, 1930, 107 N.J.Eq. 132, 151 A. 850; and Blakemore v. Cooper, 1906, 15 N.D. 5, 106 N.W. 566, 4 L.R.A.,N.S., 1074, 125 Am.St.Rep. 574.

2 Sutherland, Statutory Construction, 115, sec. 2201, states the general rule of statutory construction applicable to statutes generally with respect to their retrospective or prospective operation as follows:

'Retrospective operation is not favored by the courts, however, and a law will not be construed as retroactive unless the act clearly, by express language or necessary implication, indicates that the legislature intended a retroactive application. The rule is the converse of the general principle that statutes are to operate prospectively.'

Furthermore, as will be discussed shortly, there is a grave question of whether the change made in the redemption rights of minors by ch. 453, Laws of 1939, would be constitutional if given retroactive effect....