I dissent. I think the majority opinion does violence to the letter and spirit of 68 O. S. 1941 §§ 452, 453, and section 1, ch. 159, S. L. 1933.
The question presented is of sufficient importance to justify a statement of the reasons for my dissent. It affects land titles in every community in the state, and has to do with the collection of revenue necessary to finance local functions of government in the school districts, cities, towns, and counties. When the local units are not financed locally, they are compelled to call upon the state to assist, and when the state shares its revenue with local units of government it invariably demands a voice in the expenditure of the money. The result is to concentrate power in the state, and to weaken local self-government.
The rule requiring strict compliance with every step leading up to the sale of land for ad valorem taxes, in the absence *Page 637 of curative or other statutes abrogating such rule, was generally recognized at the time of the enactment, in 1890, of sections 452 and 453, above, by the Oklahoma Territorial Legislature. See Desty on Taxation (1884) ch. 24, p. 820, § 135; Blackwell on Tax Titles (5th Ed. 1889) § 121-167; Black on Tax Titles (2d Ed. 1893) § 155. The result of the enforcement of this rule was that "it had become proverbial that a tax title was no title at all, and a sale for taxes was as near a mockery as any proceeding having the appearance of legal sanction could be." See O'Grady v. Barnhisel (1863) 23 Cal. 287, quoted in Treese v. Ferguson, 120 Okla. 235, 251 P. 91.
Prior to 1890 many of the states had enacted curative statutes abrogating the rule requiring strict construction and strict compliance, and limiting the grounds on which tax titles might be attacked. Blackwell on Tax Titles (5th Ed.) § 948. The Territorial Legislature, in enacting the statutes now under consideration, is presumed to have been familiar with the statutes of the other states and the evil results of requiring strict compliance with tax sale statutes. Such curative statutes have the effect of "placing the taxpayer who honestly owes his tax to the government which affords him protection on precisely the same footing as any other person who owes an honest debt." Beers v. People, 83 Ill. 488.
Concerning such curative statutes, Black, Tax Titles (2d Ed. 1893) in § 482, says:
"Curative statutes are for the most part salutary and effective. Their application to defective tax proceedings is probably the most important of their uses, because the most frequent. And this arises from the intricate and detailed nature of these proceedings, which, under the rule requiring strict compliance with all the statutory directions, is a fruitful source of errors and irregularities. Curative statutes, in point of fact, are among the most effective of the means adopted by the state to obviate the results of such irregularities and to make tax titles something more than a mere sham."
In order to abrogate the rule of strict compliance, and to facilitate the collection of needed revenue, the Territorial Legislature enacted section 6223, Statutes of 1890, which embraced the provisions of 68 O. S. 1941 §§ 452, 453, 454. The 1909 Legislature re-enacted the section. S. L. 1909, p. 613. The section was, in the 1910 Revised Laws, divided into three sections, and the portion making the tax deed conclusive as to certain matters was eliminated. R. L. 1910, §§ 7416, 7417, 7418. The section as enacted was comprehensive, and may be properly broken down as follows: (1) it prescribed a tax deed form; (2) it required only substantial compliance with the form prescribed; (3) it shifted the burden of proof from the purchaser to the former owner by making the tax deed presumptive evidence of seven facts deemed important or jurisdictional, namely, land subject to taxation in the taxing district, an assessment, a tax levy, a delinquency, an advertisement for sale, a sale, and no redemption; (4) in two separate portions of the section it contained the prospective curative provisions, now under consideration; (5) it required the litigant to show his right to redeem, and to tender the amount required for redemption, before he could sue or defend; (6) it enjoined upon the courts a liberal construction of tax sale statutes and proceedings in favor of the purchaser, thus expressly abrogating the rule requiring strict construction and strict compliance; and (7) it made the tax deed conclusive evidence as to the manner and form of the proceedings, etc., not now in the Code, as above stated. Thus it is seen that the Legislature by the section as enacted clearly intended to make tax sales more than a mere sham or mockery.
The jurisdictional prerequisites of a valid sale of land for taxes are these: (a) land subject to taxation in the taxing district; (b) an assessment; (c) a tax levy; (d) a delinquency; (e) a notice of sale; and (f) a sale. Roberts v. First Nat. Bank, 8 N.D. 504, *Page 638 79 N.W. 1049. A total absence of any of these six prerequisites would undoubtedly be fatal to the sale, but a mere irregularity in any or all of them will not render the sale void if the Legislature so provides. Of course, due process must accompany the performance of these prerequisites. A study of our Tax Code discloses that the Legislature has afforded the property owner notice and an opportunity to be heard as to each of the essential steps, above enumerated, so as to satisfy the requirements of due process.
It is well settled that the Legislature may provide by curative legislation, either prospective or retrospective, that a tax sale shall not be invalid by reason of the failure of the offiicials to comply with the directions contained in statutes which the Legislature might lawfully have dispensed with in the first instance. See 61 C. J. 166, 739, 1238, 1364; 26 R. C. L. 405; Cooley, Taxation (4th Ed.) § 1590; Black on Tax Titles (2d Ed.) § 491; Blackwell on Tax Titles (Sth Ed.) §§ 952, 953; Straus v. Foxworth, 231 U.S. 162, 34 S.Ct. 42. Since the Legislature could in the first instance have dispensed with notice of sale by publication, as hereinafter pointed out, or could have provided for advertisement for less than three full weeks, it seems clear that it could in advance guard against irregularities by making the statutory provisions for notice directory rather than mandatory. This it did by the prospective curative provisions of sections 452 and 453. By those provisions it has, in effect, directed the treasurer to publish the notice as outlined, and at the same time it has warned the owner that he cannot attack the title of the tax sale purchaser for mere irregularities, but the attack must be based upon the entire failure, or total omission, to publish the notice or do one of the other acts as to which the deed is presumptive evidence.
We must remember that the duty of framing laws to raise revenue for the support of government rests upon the Legislature, and it is the duty of the courts to fairly construe and apply the laws enacted in furtherance of such duty. The Legislature is primarily concerned with raising revenue, not with protecting owners of taxable property from the effect of nonpayment of the taxes lawfully due. The primary purpose of curative laws such as are under consideration is to coerce property owners into paying taxes they owe. O'Grady v. Barnhisel, 23 Cal. 287. While it has been well said in Pillow v. Roberts, 14 L.Ed. (U.S.) 228, that "it is easy, by very ingenious and astute construction, to evade the force of almost any statute, where a court is so disposed," the courts should not do so.
Since the organization of the Territory, the Territorial Court and this court have sporadically referred to and enforced, and ignored or refused to enforce, the various provisions of sections 452 and 453. See Wetzel v. Lessert,169 Okla. 294, 36 P.2d 750; Parks v. Lyons, 183 Okla. 529,83 P.2d 573; Schulte v. Herndon, 184 Okla. 77, 84 P.2d 607. Many of our decisions laying down rules in conflict with them, and applying the rule of strict construction against the purchaser, or containing expressions having such effect, are based on decisions from other jurisdictions not having similar statutes, or on texts based on decisions from other states. See, for instance, Cadman v. Smith, 15 Okla. 633, 85 P. 346; Lowenstein v. Sexton, 18 Okla. 322, 90 P. 410; Smith v. Bostaph,103 Okla. 258, 229 P. 1039; Henderson v. Langley, 173 Okla. 550,49 P.2d 167; Price v. Mahoney, 175 Okla. 355, 53 P.2d 257. The result is that there has always been and still is such confusion in our decisions that no lawyer can safely advise his clients as to their rights under tax deeds, whether the clients be the former owners or the tax sale purchasers. This confusion can be ended if this court will apply well-settled rules of statutory construction, keep in mind and compare the exact language of all our statutes having a bearing on the question presented, reconcile those that seem to be in conflict, give some effect to each provision, if possible, determine and declare the true intention of the Legislature, and refuse *Page 639 to permit our sympathy for the former owner to nullify the tax sale statutes, and it is our duty to do so. 59 C. J. 995, 999; 25 R. C. L. 1004, 1006; Case v. Pinnick, 186 Okla. 217,97 P.2d 58. The provision (68 O. S. 1941 § 382) for notice of sale was enacted at the same time and as a part of the same Code as the curative provisions, and they should be construed together. We must remember that the courts are not concerned with the wisdom of a statute, since that question is addressed exclusively to the Legislature' in enacting it and to the Governor in approving or vetoing it. The plain duty of the courts is to correctly interpret and then enforce statutes as written. They are not responsible for the consequences of their enforcement. They should not "interpose objection to thwart the legislative will." Beers v. People, above.
The Constitution is silent on the question as to the time, place, and manner of taking the various steps leading up to the sale of land for delinquent taxes. Such matters are, therefore, committed to the Legislature, and its enactments cannot rightfully be questioned by the courts so long as they do not violate constitutional provisions such as those with reference to exemption from taxation, uniformity and due process. Section 36, art. 5, Oklahoma Constitution; Excise Board v. Chicago, R. I. P. Ry. Co., 168 Okla. 523, 34 P.2d 268; Cooley, Taxation (4th Ed.) § 69; 26 R. C. L. 27, § 13; 61 C. J. 81, § 10. The Legislature undoubtedly has the right to say how the notice of delinquent tax sale shall be given, whether served personally, mailed, posted or published, and if published, the number of issues, length of time, and contents of the notice. And where the Legislature, by statute, fixes the time and place of holding the delinquent tax sale and the resale, as is done by 68 O. S. 1941 §§ 383, 432, and 432d, the statute alone constitutes notice sufficient to satisfy the requirements of due process. 61 C. J. 1180; 26 R. C. L. 406; Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49; Maxwell v. Page, 23 N.M. 356, 168 P. 492, 5 A. L. R. 155; Allen v. Armstrong, 16 Iowa 508; Davis v. Magoun, 109 Iowa 308, 80 N.W. 423; Smith v. Cleveland, 17 Wis. 556; City of Beatrice v. Wright,72 Neb. 689, 101 N.W. 1039; Crisman v. Johnson, 23 Colo. 264, 47 P. 296. The cited authorities are in harmony with the general rule as to what notice will satisfy the requirements of due process in tax proceedings. See note in L. R. A. 1916E, p. 8; 61 C. J. 658, 744, and 754; 26 R. C. L. 345; Cooley, Taxation (4th Ed.) § 1127; Hagar v. Reclamation District, 111 U.S. 701, 4 S.Ct. 663.
The question here presented is whether the curative provisions of the cited statutes apply to the length of time the notice of sale and resale shall be published. The majority opinion follows a line of decisions which in construing 68 O. S. 1941 § 382 applied the rule of strict construction against the tax purchaser, and in doing so entirely ignored sections 452 and 453. It magnifies the importance of the expression "duly advertised" found in the sixth presumptive fact in section 452 and ignores or minimizes the importance of the expressions in the curative provisions "wholly omitted" and "irregularly done" found in section 452, and the expression "entire failure" found in section 453. Such importance was not given to the expression "duly advertised" in Swearingen v. McCartan, 186 Okla. 241, 96 P.2d 1061, and in Henshaw v. Morris, 189 Okla. 603, 119 P.2d 85, where we held the curative provisions applied to an irregularity in the form of the advertisement. In neither of those cases was the land "duly advertised," yet we upheld the sales, since there was a mere irregularity in the advertisement and not an "entire failure" to advertise. In both cases we applied the curative provisions and refused to magnify the importance of the expression "duly advertised," as is done in the present majority opinion. Why make a distinction between the length of time the property is advertised and the contents of the advertisement? If failure to "duly" advertise in the one case does not invalidate the sale, why should it in the other? *Page 640 Of course, the Legislature intended the presumption that each of the seven presumptive facts duly existed or was done.
The fifth presumptive fact in section 452 is "that the taxes were levied according to the law," which means that they were "duly" levied. In Henshaw v. Morris, above, the taxes were clearly not "levied according to the law," since some of the items of the levy were illegal. There was an irregularity in the levy. Yet we there enforced the curative provisions, since there was not an "entire failure" to make the levy.
In O'Keefe v. Dillenbeck, 15 Okla. 437, 83 P. 540, there was an irregularity in the assessment and equalization of the property, but the curative provisions were referred to and enforced by the Territorial Court.
In N.H. Ranch Co. v. Gann, 42 N.M. 530, 82 P.2d 632, the New Mexico court had under consideration a statute requiring that the tax sale notice be published in a newspaper published in English in the county or in an adjoining county but having a general circulation in the county. The notice was published in a paper having a general circulation in Catron county, but was not published in Catron county or in an adjoining county. The court enforced a curative statute limiting an attack upon the tax title because of the notice to cases where there is an "entire omission to give notice of sale," and upheld the tax title.
The Minnesota case of McCord v. Sullivan, on which the majority opinion so strongly relies, represents a minority view as to defects that cannot be cured by curative legislation, and is not in harmony with the decisions of the United States Supreme Court and the other authorities as to due process in the tax sale proceedings and the constitutional power of the Legislature to enact curative legislation, above cited. The opinion does not set out the terms of the curative statute, but does disclose that a retrospective, not a prospective, curative statute was involved.
The Illinois decisions quoted from in the majority opinion are not in point. They simply hold that a retrospective curative statute cannot cure a jurisdictional defect, and are in harmony with the general rule as shown by the authorities I have cited above.
It is suggested in the majority opinion that the Legislature, with knowledge of the construction placed upon section 382 requiring notice to be published for "three consecutive weeks," has failed to enact laws more clearly stating its intention. The answer to this suggestion is (1) that this court now for the first time takes notice of, and refuses to apply, the curative provisions, having ignored them in the former decisions referred to in the majority opinion, and (2) the Legislature probably considers the existing laws as plain and unambiguous as they can be written, and that if this court will not carry out the laws as they are now plainly written, it will continue to find a way out of enforcing any other laws that may be enacted, and that it is useless for it to try to frame a plainer law. The Legislature has, on six occasions, expressed itself as plainly as it thought possible, in the 1890 Code, in the 1893 Code, in the 1903 Code, in the 1909 Tax Code, in the 1910 Revised Laws, and in section 9 of the 1939 resale act. Furthermore, "in such a case, this court, in all fairness, and not the Legislature, should deem itself called upon to act." Remey v. Cent. R. Co., infra.
We should cease looking for fly specks on tax sale proceedings which serve as an excuse for invalidating tax sales. The majority opinion not only continues a policy of strict construction against the purchaser, in violation of the provisions of sections 452 and 453, but it defeats the very purpose of those sections. The record in the instant case discloses many errors in the proceedings leading up to the sale. The Legislature was no doubt aware of the fact that it is practically impossible for the various county officers, usually laymen serving *Page 641 for a short period of time and not skilled in the law, to perform their intricate duties, commencing with the assessment and ending with the sale, without making mistakes. The sections are intended to guard against such mistakes so long as they are mere irregularities and are not total omissions of any of the seven facts referred to.
It follows that I think the decisions on which the majority opinion is based, holding sales based on notice for less than 21 days and resales based on notice for less than 28 days to be void, violate the plain language of the prospective curative provisions of sections 452 and 453. All of said decisions are predicated on Cadman v. Smith, above. None of them construe or mention said curative provisions; rather they ignore them. It is significant that the majority opinion reaches the same conclusion, under the theory of interpretation, that the former decisions reached by ignoring the curative provisions of sections 452 and 453. The meaning of said sections being plain, and there being no constitutional objection to them, it is the duty of the courts to carry them out. To do otherwise is to violate section 1, art. 4, of the State Constitution, providing for the division of the powers of government and that neither department "shall exercise the powers properly belonging to either of the others," for it is to hold that the courts can, by ignoring valid statutes a sufficient length of time, in effect repeal them. The Legislature has the duty of establishing the public policy of the state, and, in the absence of constitutional restrictions, it is not for the courts to nullify such policy and proclaim by judicial fiat a contrary policy as has been done by said decisions. The rule of stare decisis does not justify us in perpetuating the error after it has been called to our attention, for it is of paramount importance that the courts, in order to deserve and enjoy public confidence, be right, and correct their errors when they are discovered. The statute rather than the decisions should be followed. The language of the Iowa court in Remey v. Cent. R. Co., 116 Iowa 133, 89 N.W. 218, is peculiarly applicable:
"The courts owe some duty to the co-ordinate branch of the government, and of great importance is that of giving effect to the statutes as written and according to the meaning clearly intended. These sections are explicit, and their purport not to be doubted. It would be difficult for the Legislature to make them plainer. When a palpable mistake has been made, through passing on a question not argued and overlooking a portion of the statute involved, and again discussing a question not in the case, we think it not only the duty, but that it should be the pleasure as well, of the court to rectify the error and give expression to the law as written and as intended. Such a course is much to be preferred to reading into the statute conditions never thought of, merely to uphold what has been said inadvisedly. In such a case, this court, in all fairness, and not the Legislature, should deem itself called upon to act."
To the same effect, see 15 C. J. 945, 956; 21 C.J.S. 325; Imperial Securities Co. v. Morris, 57 Colo. 194, 141 P. 1160 (involving a line of tax deed decisions which were overruled); Lambert v. People, 78 Colo. 313, 241 P. 533; Patterson v. McCormick, 177 N.C. 448, 99 S.E. 401.
The rule of stare decisis is salutary and makes for stability. Former decisions should not be lightly departed from. However, the rule has its proper limitations. It should not be applied to perpetuate palpable error. 15 C. J. 956; 7 R. C. L. 1008. Especially is this true when the former decisions defeat the will of the Legislature and are against the public interest. It cannot be doubted that decisions that sustain attacks on tax titles for technical defects encourage property owners not to pay taxes, discourage investors from buying at tax sales, cause the property to sell for inadequate prices, and deprive the municipal subdivisions of much needed revenue. Those property owners who, in reliance on our prior erroneous decisions, if any there be, have failed to pay their taxes are not in a good position *Page 642 taxes assessed against their property at the time and place provided by law, and that if they failed to do so, the property would be sold at a definite time and place for the delinquent taxes.
We did not permit the rule of stare decisis to stand in the way when we overruled a long line of decisions that had misconstrued the tender provisions of section 453 and other sections in Parks v. Lyons and Schulte v. Herndon, above. Nor did we let the rule stand in the way of getting right in Treese v. Ferguson and Wetsel v. Lessert, above, and many other cases where we have overruled prior tax title decisions. We should not now let it serve as an excuse or reason for perpetuating error and defeating the intention of the Legislature.
I conclude that the prospective curative provisions are plain, cover the present case and should be applied, and that the decisions in Cadman v. Smith, above, and those following it should be overruled.
Furthermore, the 1933 act was intended to cure irregularities such as are here involved, and to fix a limitation period for making attacks on resale tax deeds. It provided as follows:
"No action shall be commenced to set aside any tax resale of real estate or to vacate the conveyance thereof to the county under such resale, after one year from the date of the deed thereof executed by the treasurer of the county to the chairman of the board of county commissioners; provided, that any such action not now barred may be commenced not later than six months from the effective date of this act. Provided, further, that if no action to set aside or vacate such tax resale or conveyance as hereinabove provided be commenced, then all such tax resales and conveyances are hereby validated and confirmed."
This statute is plain and purports to protect resale tax deeds from all attacks after the lapse of the time specified. It contains no exceptions. The curative provision was intended to validate tax resales where actions were not commenced within the six-months period. It is effective as against irregularities in the tax sale proceedings, such as are involved in the instant case, under the authorities above cited.
The limitation provision is valid under the rule stated in Case v. Pinnick, 186 Okla. 217, 97 P.2d 58.
An examination of the cases cited near the end of the majority opinion will disclose that none of them support the conclusion that the 1933 curative act does not apply. Not one of them refers to a curative statute or to the limitation provision of the 1933 act. Most of them involved failure to serve the owner with notice of demand for a certificate tax deed. Several of them announce the rule of strict compliance, and overlook the fact that that rule has been abrogated by sections 452 and 453, as above pointed out. Most of them hold that the short statute of limitations found in 68 O. S. 1941 § 455 does not apply to tax sales void because of jurisdictional defects, presumably on the theory that land is not "sold and conveyed" by a void deed. Some of them intimate that a statute of limitations cannot be made to apply to tax sales void for jurisdictional defects because to do so would violate the due process clause. This view is contrary to the great weight of authority in this country and is unsound. See Saranac Land Timber Co. v. Roberts, 177 U.S. 318, 20 S.Ct. 642; Bowman v. Cockrell, 6 Kan. 311; Blackwell on Tax Titles (5th Ed.) § 896; Cooley, Constitutional Limitations (8th Ed.) p. 761; 17 R. C. L. 670, 680, 682; 61 C. J. 1430, notes 64-66. Assuming, however, that this court will not follow the majority view, the rule that a statute of limitations cannot be made to apply to a tax deed void because of a jurisdictional defect does not apply here, since, as pointed out above, there is no jurisdictional defect involved in the instant case.
Our government must operate on the presumption that every citizen knows the law. Whitney is presumed to have *Page 643 known that his land was taxable, that in due course it would be assessed, a tax levy extended against it, and it would be placed on the tax rolls, that it was his duty to timely pay his taxes, that if he failed to do so, his land would be offered for sale and resale at a time and place specified in the statutes, and that if the county had to purchase it for want of bidders, it would be offered for sale at a county commissioners' sale and some one would buy it. Welborn purchased it and paid the consideration. Now why should Whitney be entitled to any sympathy? Why should this court not carry out the curative statutes above referred to and take the land from Welborn and give it back to Whitney? To do so is to warn investors not to buy tax titles, and to give speculators a free hand in the purchase of such titles.
Those who purchase property at judicial sales usually pay a fair price because they know they are probably getting a good title and not merely buying a lawsuit. Those who purchase property at tax sales do not pay a fair price because they know they are probably not getting a good title, but are merely buying a lawsuit. The Legislature intended that a good title be acquired at both sales. The citizen owes as much duty to pay taxes to the government that educates his children and affords protection as he does to pay rent and other living expenses. If this court would enforce the tax laws as they are written, most property owners would deny themselves of luxuries and economize so as to save enough money to pay their taxes. Much more revenue would be collected by voluntary payment. Of course, there are instances when the owners through some misfortune are unable to pay their taxes. This is to be regretted, but the Legislature cannot make exceptions in their favor, for to do so would make an opening for those able to pay taxes, but who are unwilling to do so, to evade payment. If this court would enforce the tax laws, much less property would be offered at tax sales, and the property that is offered would bring a fair price, so that in most cases the government would get its taxes in full, and the former owner would realize something for his equity. Such a policy would materially reduce tax title litigation, since the former owner would know that the sale of his property for taxes is a serious matter and not a mere sham or mockery.
For the foregoing reasons, I respectfully dissent.