I concur fully in the majority opinion, but wish briefly to summarize the holding in view of the misconceptions expressed by the dissenting opinion.
The majority opinion holds that section 2443 of the 1907 Codes, providing that the collection of drain assessments shall be enforced as state and county taxes against lands are collected and enforced, may be construed as authorizing the taking of tax deeds as against the state, but that it was repealed by the 1921 legislature, and that as between the state and a political subdivision (and not as between the state and a bona fide purchaser for value at tax sale), there is no question of vested interest which would prevent the repeal from taking effect in this instance.
In the dissent it is said: "It shocks me to think that, when a person takes a bond or obligation of a drain district, or enters into a contract with it for the performance of a certain work or the furnishing of supplies, when the law provides that he must look to the assessment for payment of the obligation and when the payment of the assessments may be compelled by a sale of the land, the legislature has the right thereafter to repeal the law so that collection of the assessments cannot be enforced."
The implication is obvious that the majority opinion has that result. I have examined the record from start to finish and have found no suggestion anywhere, except in the dissenting opinion, that any bond or obligation of the district is outstanding or any contract for work or supplies unliquidated. There is absolutely no such element in this case; the sole question is whether, nearly eighteen years after the repeal of the section *Page 31 in question, a subdivision of the state may still take the state's property by tax deed.
The question is not whether the state should refuse to pay for the drainage improvement of its property. The question is simply whether, if the executive or legislative departments fail to see that those assessments are paid, the judicial department shall penalize all the people of the state by permitting the unauthorized taking of state property by tax deed.
Equitably, the assessments should be paid, either by appropriation for that purpose, or by a statute authorizing the taking of a tax deed. It is unthinkable that the legislature would have refused to provide payment by the one mode or the other, if the interested parties had properly brought the matter to its attention. But even in default of such action by the interested parties and the legislature, the courts cannot themselves legislate a remedy. The majority opinion does no more than express that fact, and no more can properly be read into its decision.