ON REHEARING.
An earnest appeal has been made to us to order a reargument of this case. We do not think we would be warranted in so doing, but it is proper that we briefly notice some of the claims put forth by the learned counsel in his petition for a rehearing.
It is urged that this is a statutory action, given by § 72 of the revenue law of 1890, and that under that statute it was only necessary for the plaintiff to set forth his record title, and that thereupon it became incumbent upon defendant to affirmatively plead his title under the tax proceedings, and that the burden rested upon him to establish the validity of such proceedings, at every step, by affirmative proof. In this, counsel is in error. Said § 72 gives no right of action. A careful perusal of the entire section will show that its purpose was to remove the statutes of limitations theretofore existing against the several actions enumerated in the statutes. True it is that under § 5904, Rev. Codes, being § 5449, Comp. Laws, a party may bring an action to determine conflicting claims to real estate, in which he need only set forth his title, and allege that the defendant claims an estate or interest in the land. To this challenge the defendant must respond by setting forth the basis of his estate or interest, and, of course, the burden is upon him to establish his affirmative allegations. But this procedure was never exclusive. A party always had the right to bring an ordinary action in equity to remove a cloud from his title, and in that form of action it was always necessary for him to set forth the matters constituting the cloud, and establish their illegality. In this case plaintiff chose the latter method. He set forth defendant’s claim of title, and set forth in detail the facts which, from his standpoint, rendered such claim invalid. The defendant might content himself with a denial of these facts, and upon the trial of such *76issue the ordinary rules of evidence would prevail. The burden was upon plaintiff, and the presumptions against him.
Complaint is made of the summary manner in which the opinion disposes of the Island Park property. We think it justified by the record. But, however that may be, we cannot accept the evidence of the assessor as to the value of the property at the time of the trial — years after the assessment — as contradicting his evidence that at the time of the assessment he assessed all property at what he deemed its fair and reasonable value. Nor can we accept his testimony that such property was not used exclusively for church purposes as having any bearing upon the case. If the board of equalization, in remitting the taxes on the property, honestly believed it to be exempt as church property, — and there is not even an intimaton to the contrary,— then clearly, under the authorities cited in the opinion, their mistake would not invalidate the tax.
It is again urged that a statute which authorizes a sale of the entire tract, when not necessary in order to realize a sufficient sum to pay the taxes and charges, is a violation of the constitutional provision against taking property without due process of law. This might be true, if the statute contained no provision that the surplus should go to the land owner. When a statute directs that only so much land shall be sold as is necessary to pay the tax, then the sale of an entire tract without offering a part, or without some evidence that the sale of the whole was necessary, is always void. Some of the cases on this point will be found collated in note 2, Cooley Tax’n p. 496. And the same has been held where the statute was silent as to the amount to be sold. See cases in note 1, same volume and page. But a statute directing the sale of the entire tract, reserving the surplus for the land owner, is expressly recognized by Mr. Cooley as a proper method for saving something to the owner. See page 495. This has long been the exclusive method in many of the states, and no case has been found to question the validity of such a statute, save the two cases in Gratton cited in the opinion, and which are *77confined to a federal statute. Upon the point that the sale was for a greater amount than was legally due under the assessment and levy, the opinion was prepared upon the theory that respondent’s contention was correct on the facts, and we are not prepared to recede from what we said on that theory. But a close inspection of the tax lists shows that a decision of the point was not necessary. The sale was for the correct amount, and no more.
By inadvertence one point raised in the case was not noticed in the original opinion. In 1890 the state board of equalization, after equalizing the valuations throughout the state, adopted a motion, duly made, to raise the assessed valuation of all real estate 10 per cent. The motion recited that it was “for the purpose of raising revenue for the state.” This language was unfortunate, in that it subjected the board to criticism for performing an act which it had a perfect right to perform. All taxation is for the purpose of raising revenue. The statute not only gave the board of equalization the power, but it made it the absolute duty of the board, in case property was assessed below its actual value, to raise the assessment to the actual valuation. There is no suggestion that this power was exceeded. Should we admit that a wrong motive was assigned, still that would not invalidate a proceeding strictly enjoined upon the board as a duty. Neither in the briefs of counsel nor in the oral argument was there any extended discussion touching the validity or effect of the so called curative act of 1891 ,• — being Ch. 104 of the Session Laws of that year, — passed for the purpose of curing the levy for state purposes made by the state board of equalization in the year 1890. It must be conceded that such board had no authority whatever to make such levy at the time it purported to make the same. The legislature of 1890 had clothed itself with the authority, but had adjourned — no doubt inadvertently — without exercising the power. The question arises, then, whether or not it was competent for the legislature, by a subsequent enactment, to validate this levy so made without authority. This question *78has received elaborate consideration in the petition for rehearing, and authorities are cited which seem to hold contrary to the view expressed in our opinion. The text in Desty on Taxation is particularly strong. It is there said, at page 620:' “The curative power of the legislature can reach things voidable only, not void, —defects of execution only, not of authority or jurisdiction, — and is confined to defective proceedings under previous legislative authority.” In note 12 the author cites a large number of cases to support his text, mostly from Wisconsin. We have examined these authorities with care, and we think the language of the author is broader than these authorities warrant. ' Many of the cases cited relate to efforts to cure, by subsequent legislation, judicial proceedings which were void by reason of want of jurisdiction of the court. It is the universal holding of the courts, as well as the universal understanding of the bar, that this cannot be done. But we believe a far less rigorous rule is applied to the acts of officers and official boards generally. It is true that in Kimball v. Town of Rosendale, 42 Wis. 412, — a case involving the acts of the town board of supervisors, — the exact language is used which we have quoted from Mr. Desty’s valuable work. But the language was not necessary in the case. The fown had assessed and levied a special and unauthorized tax, which the legislature subsequently undertook to validate. It was held that this could not be done, because the constitution of Wisconsin deprived the' legislature of the power to pass any special law for the assessment and collection of taxes, and, as the legislature could, not have originally authorized the tax, of course it could not subsequently validate it. Moreover the learned jurist who wrote the opinion in that case introduced the language quoted in these words: “Perhaps the true limit of the curative power of the legislature, as gathered from all the authorities and sanctioned by principle, is, or ought to be, that it can reach things voidable only, hot void,” etc. And following the language quoted he says, “It is true that many most respectable authorities do not set so narrow a limit to the power.” An examination of *79the Wisconsin .cases will show that the Supreme Court of that state did not adopt the narrow limit. In Single v. Supervisors, 38 Wis. 363, Lyon, J., says: “For the purposes of these appeals, it will be assumed that the proceedings of the board of supervisors on the 15th of March and the 4th of September [1873] were without authority of law, and but for the legislation of 1874, that the same are entirely void. We are thus brought at once to consider and determine the validity and effect of that legislation.” And a unanimous court, of which Chief Justice Ryan, who wrote the opinion in Kimball v. Town of Rosendale, was a member, held that the subsequent legislation validated the void proceedings of the supervisors. See, also, opinion of Dickson, C. J., in Fisk v. City of Kenosha, 26 Wis. 33. These cases are not questioned in the case in 42 Wis. But, conceding that cases may be found which seem to support the doctrine of the text in Desty, we think the better authority is the other way. The case of Boardman v. Beckwith, 18 Iowa, 292, is very much in point. There a general revenue law had been passed in 1858 repealing all prior laws on the subject, but the statute failed to make any provision whatever for the assessment and levy of any tax for the year 1858. Notwithstanding this omission, the officers and boards charged with those duties under the old statutes proceeded to assess and levy a tax, and the next legislature passed an act validating such unauthoi-ized proceedings; and the court, in sustaining such curative act, said: “The point made upon this legislation is that it Was not competent for the general assembly to thus legalize the levy and assessment of 1858; that, as there was no law at the time authorizing such levy and assessment, all proceedings thereunder, notwithstanding the curative act, were illegal ,and void. Whatever doubt there might be if the act of i860 had taken effect after the sale and purchase under which plaintiff claims, there can be no room for controversy when it is remembered that it was passed and took effect long prior to that time. [This act took effect May 9, i860.] That it is competent to thus legislate, we entertain no doubt. The power of the legislature to pass acts of *80this character, conducive as they are to the general welfare, and based upon considerations of controlling public necessity, is, in our opinion, undoubted. It does not interfere with vested rights, nor impair the obligation of any contract. This case was approved and followed in Land Co. v. Soper, 39 Iowa, 112, and again in Rickman v. Muscatine Co., 77 Iowa, 513, 42 N. W. Rep. 422. The case of Grim v. School Dist., 57 Pa. St. 433, goes even further. There a tax had been levied without lawful authority. It was paid under protest, and suit brought to recover the money so paid. After the action was brought the legislature passed a curative act validating the tax. The court, in an exhaustive and well reasoned opinion, among other things says: “It has not been pretended, and could not be, that the legislature had not the power antecedent to authorize it. If so, they could cure any irregularity or want of authority in levying it by a retroactive law, even though thereby a right of action which" had been vested in an individual should be divested. It is within the principle of all the decisions of admitted authority.” This case is followed, and the above language quoted with approval, in City of Chester v. Black, 132 Pa. St. 568, 19 Atl. 276, and the principle is reaffirmed in Donley v. City of Pittsburg, 147 Pa. St. 348, 23 Atl. 394, and is announced by the Supreme Court of Minnesota in Kunkle v. Town of Franklin, 13 Minn. 127 (Gil. 119.)
In this case, as we said, in effect, in the original opinion, the tax was one which the state was empowered to levy and collect. It was recognized both by the constitution and the statute law, and was within the limits there fixed. It represented the just and equitable amount which respondent ought to pay the state. Its only defect was that it was levied by an unauthorized board. It is undisputed that the legislature might have placed the power to make the levy with the board that did make it. The power had been lodged there previously, and was subsequently placed there again. The curative act was passed, not only before the tax sale, but before the tax became delinquent. No vested right was disturbed. Under the foregoing authorities, which meet our *81unqualified approval, the action of the legislature must be upheld. The other points in the case require no further notice.
(69 N. W. Rep. 5.)Petition denied.