I agree with the majority of the Court that the judgment should be reversed, but I am not prepared to subscribe to the doctrines of the prevailing opinion in this case to its full extent on, the question of legislative power.
The first section of the Act of 1861, under which this action was brought, provides, that the assessments of all property, real and personal, for certain specified years, “ shall be and are hereby legalized and confirmed, and are rendered valid and binding, both in law and equity, against the persons and property assessed.” The second section of the same Act makes it the duty of the District Attorney to commence civil actions for the recovery of unpaid taxes in case the Tax Collector is unable to collect the same, and he is required to designate in the complaint the amount of taxes due and unpaid, and the kind and quantity of property assessed, both real and personal, and to describe it therein if it be real property. This Act presupposes the existence of an assessment to which the words “ are legalized and confirmed, and are rendered valid and binding,” have direct relation.
Then the first inquiry must be to ascertain if an assessment was made; and to determine this involves the further inquiry as to what acts were performed by the' Assessor to effect the assessment alleged to have been made. The Act of 1857, entitled “An Act to provide revenue for the support of the . Government of this State,” prescribes the steps to be taken and the acts to be performed in order to create an assessment. These steps and proceedings are the conditions on which all subsequent proceedings for the enforcement of the payment of taxes depend for any vitality whatever.
The various pre-requisite acts which must be performed- to constitute the assessment when made, are sometimes, and as experience has proved are often performed imperfectly and informally; that is to say, are so performed as to come short of a full compliance with the requirements of the law when *309strictly interpreted. Assessments of this character the Act of 1861 was designed to aid, and in my judgment was the only class of defective assessments to which it was in the power of the Legislature to administer a cure.
Perhaps there is no doctrine better settled than that no intendment is to be made in favor of the regularity of the proceedings of Courts or officers of inferior or special jurisdictions. (Thatcher v. Powell, 6 Wheat. 119; Williams v. Peyton, 4 Wheat. 77; Bloom v. Burdick, 1 Hill, 141; Sharp v. Spier, 4 Hill, 86 ; Striker v. Kelly, 7 Hill, 29 ; Prosser v. Secor, 5 Barb. 611; Sibley v. Waffle, 16 N. Y. 190.)
In Sharp v. Spier, Mr. Justice Bronson said: “ Every statute authority in derogation of the common law, to divest the title of one and transfer it to another, must be strictly construed or the title will not pass.” And in Striker v. Kelly he said: “ It is a familiar doctrine in relation to statute sales, that it lies on the purchaser to show a strict compliance with the statute. He must make out his case affirmatively, showing step by step the existence of all the facts on which the right to sell is made to depend.”
These authorities are referred to mainly to show the general state of the law relating to the subject, and that the Act of 1861 was only intended by the Legislature, having a correct appreciation of these doctrines of the law, to cure defects which, under the settled rules of construction, would defeat assessments in some respects formally defective, though substantially good. - The same Act, as already appears, provides that where a suit shall be commenced to recover the unpaid taxes levied, the amount of which was ascertained by the assessment fixing the value of the property, the complaint must show the amount of taxes due and unpaid, and must state the kind and quantity of property assessed; and if the property were real estate, the same must be described in the complaint ; and the Act declares that “ the defendant shall not be allowed to set up or show any informality in the levy or assessment as a defense.”
The evils remedied by the Act of 1861 seem to have been *310those existing for want of a proper observance of formalities of subordinate importance, but not those vitally affecting the levy and assessment. This conclusion seems to me to be necessary in order to give any effect to this Act, for the reason that the Legislature had not the power to render an assessment valid and binding which was originally invalid in substance, and which was therefore void. It may be asked, what are the informalities which may be cured, and what are the matters of substance to which the healing power of the Legislature can-mot extend ? The statute requires the Assessor to do certain things to make an assessment, and to accomplish this end the things required must be performed in some manner. The manner or mode of performance may in some particulars be of the essence of the assessment, and in others not so. Where the act to be done is essential to or constitutive of the thing to be accomplished, its omission cannot be cured by legislative enactment having a restrospective and retroactive operation, so far as to impair rights already existing, or to create a new obligation or impose a new duty or attach a new disability in respect to transactions or considerations already past. (The Society, etc. v. Wheeler, 2 Gallison, 139.)
To hold that the Legislature is competent to render valid and binding from the beginning that which by the law was at the time invalid and void seems to me to be involved in an inextricable absurdity. As well might the Legislature undertake to create rights unknown to the laws of the land and give them a retrospective existence, and therewith furnish to those who, by a fiction, possessed such rights, remedies for injuries affecting them before they had existence. It would, I apprehend, be equally in th'e power of the Legislature to legalize and render valid and binding in law an abortive proceeding instituted in past years against a citizen to divest him of his property, without affording him an opportunity to be heard in his defense, as to declare a radically and invalid assessment valid and binding ab initio.
A statute which in its scope and spirit has for its object to make valid and binding the acts of Courts or officers, which *311when performed were null and void, is to my mind in violation of the rights of the citizens affected by it; and measured by a moral standard should be condemned by every Court of justice which may be called on to deal with it.
Statutes which are retrospective in their character and to which is given a retroactive effect, have generally been considered in violation of common right and common reason, and 'ipso facto void, independently of any constitutional restrictions against their passage. (Bowman v. Middleton, 1 Bay’s R. 252; Bonaparte v. C. and A. R. R. Co. 1 Bald. C. C. R. 223.) The law is a rule of civil conduct, and from its very nature must be prospective. In Smith’s Commentaries, section one hundred and fifty-three, it is said, “ Retrospective laws are not only inconsistent with the idea of a law, as a rule of civil conduct, but they are in many instances only the exercise of powers which are in their nature strictly judicial, instead of legislative. Such laws, when only such, look not to the future, but upon the past; or, in other words, pronounce judgment upon acts done antecedent to their adoption ; and in this respect they assume a judicial power, as contradistinguished from what is strictly legislative power. They assume to give character to facts which they did not possess at the time they took place, and then to judge of them in the new character thus legislatively created for them; to settle, in some instances, old rights, depending on laws as they existed before the Act was passed, by new principles created and applied by the retrospective Act, having no existence antecedent to the time of its passage, which then, and not till then, sprang into being.”
I do not object that the Legislature cannot pass remedial statutes, affording the means to enforce rights on the one hand, and the performance of obligations on the other, which had existence before the remedy was provided; but my objection opposes any construction of the Act of 1861 which has the effect to give to an assessment a character which it did not possess at the time it passed from the officers whose duty it was to see that it was made.
*312The language of the Act is that certain assessments “ are hereby legalized and confirmed and are rendered valid and binding, both at law and equity, against the persons and property assessed.” If the Act was designed to do more than to remedy defects of a mere formal character, and which ordinarily would be remedied by the principles which are the basis of the maxim, Be minimis non curat lex, then it must be held to have assumed to giye a character to the assessment which it did not have, and then further to judge of it in the habiliments of its new creation, and that, too, without affording to the party affected by it any chance whatever to obtain a reduction of the amount thus constructively assessed, however excessive and unjust it might be. If the Act goes to this extent it should be restrained. It should be limited to the cure of infirmities of minor importance, which, according to the rules of construction applied in the consideration of the proceedings of Courts and officers of inferior jurisdictions, would render ineffectual the assessment for any efficient purpose.
While I admit that the Legislature has the power to heal infirmities arising from a failure to pursue with exact precision the course prescribed in matters of a formal character, I deny its power to cure evils affecting the. substance of the assessment ; because in the one case the law is 'remedial and operates prospectively, and in the other it is curative and retrospective and in its practical working deprives the citizen of his property without due course of law. Give to the Act the effect that is claimed for it on behalf of the State and it furnishes to the public prosecutor a case, in its living essence of legislative creation, falsely antedated, which the citizen who is made the victim is not permitted to gainsay by a statement of the truth, that no valid assessment was made; but he is permitted, after first assuming that a valid and binding assessment was made at the time alleged in the complaint, to answer that he has paid the taxes not necessarily on the property set down and described in the assessment roll, but on the property described in the complaint.
*313I cannot believe that the legislative omnipotence, with all its creative energies, can perform the miracle of creating a thing whose origin shall be of years that have passed; nor do I believe the Legislature has the power to deny to the citizen the right to be heard in defense of Ms person or property.