ON PETITION FOR REHEARING. (Filed December 13, 1940.) The petition is hereby denied. There is ordinarily no need, upon denying a rehearing, to add anything to the decision *Page 131 unless a modification is ordered. However, those who now favor a rehearing desire to add a statement explaining their change of opinion since concurring in the original unanimous opinion, and their statement suggests for the first time some arguments not raised by appellant, either in its original brief, its oral argument, or its petition for rehearing.
Briefly summarized, the dissenting argument is (1) that the title of the Act suggests an "obvious purpose" to provide a tax moratorium until February 1, 1941; (2) that if the proviso for taking tax deed meantime conflicts with that intent, it is unconstitutional as not within the title of the Act; (3) that it can be construed as within the title by construing the permitted tax deeds as in some way not terminating the right of redemption.
The title is: "An Act to Permit Real Property to Be Redeemed From Tax Sale by Paying the Original Tax, Provided Such Original Taxes Be Paid on or Before February 1, 1941." (Laws 1939, Chap. 11.) "Provided" means "if." The title certainly indicates an Act to permit real property redemptions by payment of the tax only, if the tax be paid by the date named. What is the converse? Simply that redemptions cannot be made by payment of the tax only, unless the tax be paid by the date named. Obviously, then, the title indicates that what is to expire on February 1, 1941, is not the right to redeem, but the right on redemption to pay the tax only, without interest or penalties. Certainly that is not equivalent to saying that the time for paying the tax is extended to that date, but only that immunity from interest and penalties is so extended. Not the privilege of paying the tax, but the privilege of not paying interest and penalties, was extended to February 1, 1941; and it is that privilege which expires on the date named.
The body of the Act clearly shows that it is not the right of redemption which expires on the date named, for after saying "such redemption [without interest and penalty] * * * must be made on or before the first day of February, 1941," it proceeds to say, in the same sentence, "and if such redemption *Page 132 is not made by the first day of February, 1941, then redemption can only be made" by paying interest and penalties in addition to the tax. (Section 1.) When does the right to redeem expire under Chapter 11? If under the first part of the above sentence, theright to redeem by paying the tax without other lawful charges expires on February 1, 1941, then under the second part of the sentence, the right to redeem by paying all of those charges continues indefinitely after that date, because no limit is stated. There are not two kinds of redemption. We must read the clause relative to redemption before February 1, 1941, with the same meaning as that relative to redemption after that date. The only difference is in the exemption from, or liability for, the extra charges on redemption.
Section 2201, Revised Codes, limits the right of redemption to "any time prior to the giving of the notice and the application for a deed"; sections 2215 and 2215.9, Revised Codes, provide that a tax deed shall convey absolute title "free of all encumbrances" (with certain reservations not material here). If the clause of Chapter 11 relative to redemption on or prior to February 1, 1941, impliedly amends those sections, so does the clause relative to redemption after that time. There is no logical difference. Either both clauses amend the sections, or neither amends them. It is no answer to say that the second effect is not within the title, for neither is the first within it; the point is that logically there is no difference between them.
There is nothing in Chapter 11 to suggest that tax deeds issued before February 1, 1941, are to have any less effect to terminate the right of redemption under sections 2201, 2215 and 2215.9, than tax deeds issued after that time. Thus if the Act impliedly amends or repeals those sections, it must do so with respect to redemptions made either before or after February 1, 1941, for there is no difference between them except as to the items to be paid. And neither result is within the title.
As shown in the original decision, the legislature in enacting[2] this chapter very carefully omitted from its title and body all elements of moratorium or delay included in the prior remedial Acts; and not content with that, it expressly provided *Page 133 that counties might proceed to take tax deeds. But according to the dissent we are now to consider the Act as impliedly amending or repealing the sections cited above, in spite of the fact that neither such result is mentioned in the title; and the reason given is that unless those things are done the Act is unconstitutional as not within "the obvious purpose of the Act" as expressed in the title. Courts have been criticized before this, for much less strained pronouncements of unconstitutionality. The Constitution (Art. V, sec. 23) does not say that Acts and parts of Acts are void if not within "the obvious purpose of the Act" as expressed in the title; but that they are void if the subject is not "expressed" or "clearly expressed" in the title. Are the implied repeals or amendments of sections 2201, 2215 and 2215.9 contended for by the dissent "clearly expressed" in the title?
Even if it were possible to find in the title an "obvious purpose" to enact a moratorium, may the courts now write into the body of the Act the moratorium feature so carefully excluded and negatived by the legislature, on the theory that without such procedure the Act is void as not within the subject expressed by the title? The constitutional provision sometimes justifies a finding that something in an Act is void as not within the title, but it can hardly justify a finding that an implied amendment of other statutes must be construed into the body of the Act, simply to fill out the purpose expressed in the title. If that were so, the legislature could accomplish the desired result by merely enacting a title and leaving it to the courts to do the rest; but that would hardly seem within the present trend, in view of the recent assaults upon judicial legislation.
It would appear doubly impossible to write in such a provision by judicial construction, where the legislature has expressly revoked the moratorium features, thus restoring the application of the regular tax deed statutes, and where the judicial construction is resorted to for the purpose of evading the necessary effect of the restored regular statutes; in other words, to seek by judicial construction to nullify the legislative intent *Page 134 expressed by the enactment, in furtherance of a supposed contrary intent expressed by the title. That would certainly be the effect if we could in some way construe the expressly authorized tax deeds as not subject to sections 2201, 2215 and 2215.9.
Such result would obviously be unjustifiable, even if the supposed intent were clearly expressed by the title. But here a further immunity from interest and penalties until February 1, 1941, was clearly expressed, and the most that can plausibly be contended is that the legislature might possibly in addition have intended a tax moratorium to that date. Obviously, therefore, the legislature's very pointed negativing of any possible tax moratorium cannot be held void as not within the subject "clearly expressed" in the title. And if it could, we could not negative the negative by construing a positive, through the expedient of reading implied amendments or repeals into the body of the Act, so as to restore the moratorium feature.
The dissent states that in order to arrive at the majority result we must read into the title the words "if paid before the issuance of a tax deed." That would be both unnecessary and meaningless if, as the dissent contends, the title already in effect means "An Act to extend to February 1, 1941, the time for redemption"; for in that event a provision for taking tax deeds would be inconsistent with the purpose clearly expressed by the title. But since both the title and the body of the Act express an intent merely to remit penalties and interest if redemptions are made on or before February 1, 1941, without expressing any intent to effect a moratorium for tax payments until that date, it is not necessary to read anything into title or Act concerning tax deeds or any other extraneous subject. We must construe all[3] the laws together, for, unless expressly or necessarily repealed as inconsistent, all the laws must govern the courts in their consideration of cases. But to construe them together is not to read the old statutes into the title or body of the new. No tax moratorium is expressed in the title nor enacted in the body of Chapter 11, and the courts cannot supply it, wherever their sympathies may lie. *Page 135
Any remedy for the legislature's failure to enact a further moratorium must come from the legislature, and the trial court cannot be placed in error for failing to supply it by the judicial construction contended for.
Remittitur shall issue forthwith.
ASSOCIATE JUSTICES MORRIS and ARNOLD concur.