I agree that under Chapter 171, Laws 1941, the original owner of property must exercise his right of repurchase at the reduced price before the time fixed for the first offering of sale by the county.
My principal objection to the majority opinion hinges upon its consideration of the case of State ex rel. Johnson v. Garfield County, 116 Mont. 300, 151 P.2d 481, 482. In that case this court held that under Chapter 171 the purchaser could exercise his right of repurchase at the reduced price at any time before a sale by the county. In that case this court said: "The contention of the county board is in effect that the tax deed to the county having been made and delivered January 31, 1941, and the land having once been appraised, advertised and offered for sale under the provisions of Chapter 181 of the 1939 Session Laws, but not sold, the 1939 Session Laws being in effect at the time the county acquired title to the land, and the land being offered once for sale and not sold, the plaintiff's preferential right was by such procedure lost. To sustain such contention it is argued that the phrase `such sale' in Chapter 171 `contemplated the first offering for sale at public auction after the county acquired tax deed to the lands * * *' and as the sale was not made at the first but the second offering the preferential right of the owner had lapsed.
"No reasonable construction of Chapter 171 will sustain any such contention. The preferential right of the owner of the land sold for delinquent taxes is fully protected by both the 1939 Act *Page 316 and also by the 1941 Act. The wording of both Acts is substantially the same as to the preferential right to redeem.Both clearly give the owner the preferential right to pay thedelinquent taxes with interest and penalty and reclaim his landat any time before sale by the county." (Italics mine.)
I think the decision in the Johnson case is erroneous to the extent that it holds that under Chapter 171, Laws 1941, the original owner may repurchase the property by paying the taxes, penalty and interest at any time before sale and this my associates concede. I think the correct conclusion was reached in the Johnson case under the facts there involved because that case was controlled by Chapter 181, Laws of 1939, which was the law in effect when the county became the purchaser at the tax sale. State ex rel. City of Billings v. Osten, 91 Mont. 76,5 P.2d 562.
My associates, in reliance upon certain language appearing in the wholly different case of State ex rel. McMaster v. District Court, 80 Mont. 228, 260 P. 134, seem to regard the holding in the Johnson case to the effect that the original owner could repurchase at the reduced price at any time before sale by the county as dictum and matter placed in the opinion by way of argument, that it is not essential to the opinion and is not a binding precedent. "That which is within the issue, fully argued by counsel and deliberately considered by the court in its opinion, is not dictum. Helena Power Transmission Co. v. Spratt,37 Mont. 60, 94 P. 631; Montana Horse Products Co. v. Great Northern R. Co., 91 Mont. 194, 7 P.2d 919; First Nat. Bank of Kalispell v. Perrine, 97 Mont. 262, 33 P.2d 997. Nor does the decision lose its value as a precedent because the case might have been decided on some other ground. 21 C.J.S., Courts, sec. 190, p. 314 et seq., 14 Am. Jur., Courts, Sec. 83, pp. 297, 298." Bottomly v. Ford, Mont., 157 P.2d 108, 112.
In addition to what is quoted above from the opinion in the Johnson case, the court after reviewing the legislation on the subject in question also said: "At no time since its enactment *Page 317 in 1933 could any person be deprived of his right to reclaim his land by paying the amount of delinquent taxes with penalty and interest prior to the time of sale as advertised by the board of county commissioners. We think this is so clearly the intent of the original Act and each subsequent amendment and re-enactment of the law that we deem it unnecessary to consider any of the other contentions of the defendants."
The language of the court in the Johnson case construing Chapter 171 as authorizing repurchase at the reduced price at any time before sale of the property was not merely argument used by the Justice who wrote the opinion or argument of the court as a whole. It was the sole basis of the court's opinion. The opinion went further and expressly excluded other questions which might have called for the same result. It was the only reason given for the conclusion and cannot now be regarded as dictum or unessential to the opinion or as lacking in its quality as a precedent. Either that language or some other was essential to the opinion to decide the point before the court. There is nothing else in the opinion in the Johnson case that decides the point except the language above quoted. Hence it seems to me the declaration at this late day that that language was not essential to the opinion comes too late. It was regarded as essential when written because the court expressly declined to discuss other questions that might have determined the case on some other ground.
My associates also rely upon the rule that a correct judgment, based upon a wrong reason will be permitted to stand. That is a correct rule as applied to district court judgments reviewed on appeal. This court will not disturb a correct district court judgment based upon a wrong theory or reason. It does not follow, however, that the erroneous decisions of this court are not to be taken as precedents because the case might have been decided the same way on a different and correct theory or reason. Lawyers, litigants and trial judges properly take the decision of this court as precedents whether they agree with them or not. No *Page 318 decision of this court is a binding precedent if this court sees fit to disregard it as such. I think though that this court should accept its decision on a certain point as a binding precedent. To do otherwise is like changing the rules after the ball game is well under way. A disregard of precedent serves to make one rule for A and a different one for B. If the Johnson case was not to be a preecdent then a declaration to that effect might have been proper at the time it was rendered but such a declaration made now should not be permitted to operate retroactively.
I think we should apply the rule in this case which was applied in Montana Horse Products Co. v. Great Northern Railway Co., 91 Mont. 194, 215, 7 P.2d 919, 927, where this court said "The construction given to a statute although erroneous, before its reversal or modification, becomes a part of it as much as though written into it; and the change made in construction will affect only contracts made thereafter," citing a long list of cases in support of the statement.
The court, continuing in that case, said: "In Lewis' Sutherland on Statutory Construction, the rule is thus stated: `A judicial construction of a statute becomes a part of it, and as to rights which accrue afterwards it should be adhered to for the protection of these rights. To divest them by a change of construction is to legislate retroactively. The constitutional barrier to legislation impairing the obligation of contracts applies also to decisions altering the law as previously expounded, so as to affect the obligations of existing contracts made on the faith of the earlier adjudications.' Section 485."
The same rule was applied in Sunburst Oil Ref. Co. v. Great Northern Ry. Co., 91 Mont. 216, 7 P.2d 927.
In Continental Supply Co. v. Abell, 95 Mont. 148, 171, 24 P.2d 133, 140, this court on motion for rehearing said: "The rule that a judicial interpretation of a statute becomes a part of the statute itself, so far as contract and property rights are concerned, and that changes in judicial interpretation should not be given retroactive effect, has received judicial sanction by *Page 319 many courts. [Citing cases.] * * * And it has been held to apply as well to questions of procedure affecting property rights [citing cases] * * *. `A change in the judicial view of the law by a subsequent decision could not amount to more than a change in the law by legislation,' and, of course, could act prospectively only. [Citing cases.]
"It is unnecessary that it be shown that reliance was actually placed by defendants upon the former decisions. Reliance thereon will be presumed. Bank of Philadelphia v. Posey, 130 Miss. 825,95 So. 134."
I concede that there was no impairment of contract rights here but the rule applies also to procedure affecting property rights and the facts here show that we are now changing the procedure in a matter affecting property rights. Hence it is my view that though the Johnson case be overruled in part plaintiff was entitled to rely upon it and rest upon the assurance that he could purchase the property at any time before sale by the county by paying the taxes, interest and penalty.
I think the judgment should be affirmed.
Rehearing denied September 25, 1947.