The Opinion of the Court was delivered by
Young, J.*This was an action of ejectment, commenced by Robert Schuyler, Russell H. Nevins,William Couch, Abijah Fisher and David Lee, the plaintiffs below, at the February Special term of the Adams Circuit Court 1842, against Lewis Rhinehart, the defendant below, to recover possession of the south east quarter of section thirty one (31), in township one (1), north, of range seven (7) west, of the fourth principal meridian, in Adams county, containing one hundred and sixty acres. The defendant pleaded “not guilty” at the same term; a trial was had by a jury at the September term following, a verdict returned for the plaintiffs, and a motion entered by the defendant for a new trial.
Before the decision of the Court upon this motion, the parties entered into the following agreement, which was made a part of the record, to wit:
“ Whereas on the trial of this cause, the plaintiffs offered in evidence a dbed from the Auditor of Public Accounts to Stephen B. Munn, dated in the year 1833, which is as follows: ‘ The Auditor of Public Accounts of the State of Illinois, to all who shall see these presents, Greeting: Know ye, that whereas I did on the eighth day of January, A. D. 1831, at the town of Vandalia, in conformity with all the requisitions of the several Acts in such cases made and provided, expose to public sale a certain tract of land, being the south east quarter of section thirty one (31) in township one (1) north, of range seven (7) west of the fourth principal meridian, for the sum of one dollar and eighty two cents, being the amount of tax for the year 1830, with the interest and costs chargeable on the said tract of land: and whereas at the time and place aforésaid, Stephen B. Munn offered to pay the aforesaid sum of money for the whole of the said tract of land, which was the least quantity bid for: and the said Stephen B. Munn has paid the sum of one dollar and eighty two cents into the treasury of the State: I have granted, bargained and sold, and by these presents, as Auditor of the aforesaid State, do grant, bargain, and sell, the whole of the south east quarter of section thirty one (31), in township one (1) north, in range seven (7) west of the fourth principal meridian, to Stephen B. Munn, his heirs and assigns, to have and to hold the said tract of land to the said Stephen B. Munn and his heirs forever, subject, however, to all the rights of redemption provided by law. ■ In testimony of which, the said Auditor has hereunto subscribed his name and affixed his seal this 8th day of November, 1833.
James T. B. Stapp, Auditor, [seal.]’
without any other evidence to support said deed, and deduced from said Munn a regular chain of title to the land described in the plaintiffs’ declaration; and which deed of the Auditor was, by consent of the defendant, permitted to be read in evidence to the jury, but subject to all legal exceptions. It was then agreed that the jury should And a verdict for the plaintiffs, subject to the opinion of the Court on the legality and sufficiency of said evidence, and that the said defendant should have leave to move to set aside said verdict, and that upon the hearing of the said motion, the said defendant should be allowed to take all exceptions to said evidence, that he might have done on the trial of said cause; and if the Court should be of opinion, that the said evidence entitled the plaintiff to a recovery of the land, and should also be of opinion that a peaceable possession by residing thereon under a connected title derived from the United States, without notice of adverse title, for seven years next preceding the commencement of said suit, would be a bar to such recovery, then the defendant is to be permitted to prove such title and possession; but if the Court should be of opinion that the plaintiff is entitled to recover notwithstanding such title and possession, then judgment is to be rendered in favor of the plaintiffs on said verdict; but if the Court should be of opinion that the plaintiffs’ said evidence does not entitle them to a recovery of the premises, then the said verdict is to be set aside, and judgment entered for the defendant. In case of judgment either for the plaintiffs or defendant, each party is to have the right of appeal, writ of error, new trial, &c., in the same manner as if the judgment had been entered upon verdict as in cases of ordinary trial. And should the judgment be against the defendant, he is to be allowed in the same manner to proceed to have the value of his improvements assessed under the provisions of an Act commonly called the occupying claimant law.
Williams & Johnston, for defendant.
Browning & Bushnell, for plaintiffs.”
The motion for a new trial on this statement of facts as submitted by the agreement, was argued and overuled at the September term 1843, and a judgment of eviction rendered against the defendant, as also for nominal damages and costs. From this judgment, the defendant, Rhinehart, has prosecuted an appeal to this Court.
The counsel for the plaintiff in error submitted for the consideration of this Court, upon their assignment of errors, the following, as causes for the reversal of the judgment in the Circuit Court, to wit:
T. The Revenue Laws of the State, under which the land in question was assessed and sold for taxes, are unconstitutional and void.
2. The Auditor’s deed was erroneously admitted in evidence, without proof of its execution; or that it had been duly acknowledged, and certified by the officer taking the acknowledgement; and without any testimony that the prerequisites of the law, in advertising, &c., previous to the making of the deed, had been complied with by the Auditor; and
3. The Court erred in deciding that the possession of the plaintiff in error, for seven years next preceding the commencement of the suit in the Court below, under a connected claim of title derived from the United States, without notice of an adverse title, did not operate as a limitation in bar of the right of the plaintiff below, to a recovery, according to the provisions of the Act of the 17th of January, 1835.
It is but justice to the counsel, who argued this cause during the protracted discussion it underwent at the hearing in this Court, to say, in the outset of the Opinion, that I am instructed by a majority of my brother Justices to deliver, that it was, on both sides, argued with distinguished and unusual ability; and that a fund of learning, depth of thought, and research, and an amout of ingenuity and talents were brought to bear upon the different points in controversy, which are but seldom displayed in our Courts of justice; and well entitle the gentlemen concerned, without distinction, to a prominent station among the members of the profession, without disparagement to others, who, under the like circumstances, would, doubtless, have acquitted themselves with credit and ability.
This cause throughout, has been treated as it deserves to be, on all sides, as one of very great importance; not on account of the value of the property involved in the result of the present controversy, but of settling principles of the first magnitude, which, in their effects as precedents, are to control and determine the relative rights of numerous individuals, to a very large class of some of the most valuable property in the country. The most solemn Acts of the Legislature, long acquiesced in, have been denounced as unconstitutional. Titles to valuable estates, acquired under them, are qucstioned; and the whole tax laws of the State, from the very commencement of its government down to the year 1829, are declared to have been passed without authority, and against the express provisions of the Constitution. The various questions presented on the several points as submitted by the assignment of errors, and the numerous authorities which were cited for and against the several positions occupied by the opposing counsel in the course of the protracted argument which was had on the occasion, have been to a great extent examined and considered, and such conclusions deduced froái the facts and law exhibited at the hearing, as seemed, to the majority of the Court, to be warranted by a fair and proper construction of the Constitution, and laws referred to, and as best calculated to promote the ends of public, as well as private justice.
The land in dispute was sold by the Auditor of Public Accounts, on the 8th day of January, 1831, under the several provisions of the Acts of 1823, 1825, 1826, and 1829, relative to the “levying and collecting a tax on land and other property,” for the taxes, interest, and costs due for the year 1830, and a deed made to the purchaser by the Auditor, on the 8th day of November, 1833.
The Act of February 18, 1823, declares, that all lands lying within the State, and claimed by individuals, whether by deed, entry, bond for conveyance, patent, grant or otherwise, except such lands as have been exempted from taxation by the compact with the United States and this State, shall, for the purposes of taxation, be divided into three classes; lands of the first quality to compose the first class; lands of the second quality, the second class; and of the third quality, the third class. The lands, when thus classed, shall be valued according to quality, as follows: lands of the first class at four dollars per acre; lands of the second class at three dollars per acre; and lands of the third class at two dollars per acre; and a tax of one half per centum per annum was laid upon all such lands according to classification and value; with a lien in favor of the State to secure its payment from year to year, which was hot to be defeated by any sale, transfer or conveyance of the land whatever. So, the annual tax upon a quarter section of land of one hundred and sixty acres would be three dollars and twenty cents on the first class; two dollars and forty cents on the second class; and one dollar and sixty cents on the third class. The whole' of the non-resident land tax, and one third of the resident land tax, derived from lands lying-in the counties in which the owners resided, and two thirds of the tax on lands lying in counties in which the owners did not reside, Was declared to be a State tax, and directed to be paid into the State Treasury; and the remaining two thirds of the resident land tax arising from lands in the counties in which the owners resided, and one third of that derived from lands situated in counties in" which they did not reside, was, together with the taxes to be derived from assessment on town lots, and personal property, declared to be a county tax, and directed to be paid into the county treasuries respectively; with the exception that the whole of the resident land tax of persons residing, in the counties situated within the Military Bounty Land District, was required to be paid into the State Treasury; for which an equivalent was given to such counties, by appropriations from the State Treasury, according to the population, circumstances, and condition of each county respectively. Nonresidents were required to enter their lands for taxation with the Auditor of Public Accounts, at the Seat of Government, annually on or before the first day of October, by presenting a written list and description of the same, verified by affidavit, with a statement of the quality and class, to which each tract belonged, and the county in which it was located. The lands were then entered upon the. tax books of the Auditor, according to the classification made by the owner,.and taxes assessed thereon according to quality and value. The taxes thus assessed, were.required to be paid into the State Treasury annually on or before the first day of October. Residents were required to list their lands and other property for taxation, with the county treasurers annually, between the first days of April and June, and to pay the same to the sheriff of the proper county, at any time on demand, after the tenth day ef August, In default of payment by non-resident proprietors, a sale of their lands upon which the taxes, interests and costs had not been paid, was required to be made by the Auditor, in the month of December, .1823, in the month of January, 1825, and every two years thereafter; at which times it become the duty of the Auditor to make out a transcript from his books, of all such delinquencies, in which he was required to charge the unpaid taxes with interest, at the rate of six per cent, per annum until paid, with all costs that might accrue thereon, and to give a general notice of the sale, by causing the same to be advertised in the newspaper printed at the Seat of Government, or in such papers as he might deem most expedient, for three weeks; the last of which publications to be at least two months before the day of sale. The Auditor was then required to sell on the day mentioned in the advertisement, the whole, or so much of each tract of land so advertised, as would pay the tax, interest and costs due and unpaid thereon; the sale to be made at the door of the State House, in Vandalia, by the Auditor, and to be continued from day to day, if necessary. The Auditor was then required to certify to the State Treasurer, the amount of such sales, and the purchasers directed to pay the several amounts bid by them respectively, into the State Treasury, and upon the production of the Treasurer’s receipt for the purchase money, it was made the further duty of the Auditor to give a deed to each purchaser for the land bid off by him, which transferred and vested the title in the purchaser completely and perfectly, unless the land was subsequently redeemed by the owner within one year from the day of sale, by a payment into the State Treasury for the use of the purchaser, the price for which the same was sold, with one hundred per cent, thereon, and all subsequent taxes paid by the purchaser before the redemption, with six per cent, thereon; with a proviso in favor of minors, who were authorized to redeem within one year after the youngest heir should become of lawful age. In default of the payment of taxes on lands and other property by resident. proprietors, the lands and other property were directed to be sold by the sheriff of the proper county, on giving ten days’ notice of the sale by advertisements in three of the most public places in the county. All sales of land, when thus made by the Auditor or sheriff, were declared to be good and valid, in whose name soever the lands or claim thereto, were listed, entered or sold, unless the persons contesting the validity of the sale, could show that the taxes had actually been paid thereon, or that the property sold was not legally subject to taxation, which, the Act declares, “shall be the first things required of any one attempting to set aside the sale.”
By the second and third sections of the Act of January 14, 1825, the time for redemption was extended to two years, upon the owner’s paying into the State Treasury for the use of the purchaser, upon the Auditor’s certificate, the amount of taxes and costs, for which the land may have been sold, and one hundred per cent, thereon. So much of the eighth section of the Act of February 18, 1823, as limited the time of redemption to one year, was thereby repealed..
By the second section of the Act of January 17, 1825, which is amendatory of the Act of February 18, 1823, it is made the duty of the Auditor of Public Accounts, on or before the first day of June annually, to furnish the clerk of the County Commissioners’ Court of each county in the State, with a tax book containing a full and complete descriptive list of all the lands made taxable by law in such county, whether the same shall be the property of residents or non-residents; which tax books shall be, by such clerks, after making and retaining copies of the same for their own use, delivered to the assessors of the several counties within fifteen days after their receipt from the Auditor, together with separate tax books containing a list and description of such other property as may be made taxable for county purposes, with the exception, that the alteration thus made in the former law should not be Construed to change the laws then existing in relation to the counties located within the Military Bounty Land District. It was made the duty of the assessors by the third section, to call upon the inhabitants of their respective counties, on or before the first Monday in August annually for a list of their personal property, made taxable by law for county purposes, and the class to which their lands in the county respectively belonged, as exhibited in the tax book furnished by the Auditor; also a list of their lands lying out of the county, with its proper rate or class, which last list of lands lying out of the county, the assessors were required to copy into the tax books transmitted by the Auditor. It was made the duty of the assessors, by the fourth section, in cases of neglect by resident proprietors to list their lands, to classify and value the same from the best Information they could procure; and to charge such delinquents with a double tax. The assessors were required by the fifth section, upon the completion of their tax books, to deliver them over to the clerks of the County Commissioners’ Court respectively, on or before the first Monday in August annually; and the clerks were required within twentjr days thereafter to deliver copies of such tax books to the sheriffs of the several counties in the State, who were directed to give ten days’ notice by advertisement, that they would attend at the usual places of holding militia company musters, on the several days mentioned in such advertisements, to receive the taxes due and unpaid according to the tax books furnished them by the clerks of the County Commissioners’ Courts, from the persons chargeable therewith. Upon neglect or refusal to pay such taxes at the times required, and for the ten succeeding days afterwards, it was made the duty of the sheriffs in the several counties to proceed to sell the property of such delinquents, as required by the thirteenth section of the Act of February 18, 1823; except, that they were in no case allowed to sell any real estate for the taxes due thereon. By the sixth section of the Act, non-residents were permitted to pay their taxes to the sheriffs of the proper counties, on any lands situated in such counties; and described in the tax books furnished by the Auditor as above mentioned. By the eighth section of the Act, the sheriffs were respectively required to transmit to the Auditor on or before the first of January annually, the original tax books furnished by him, and to make settlements by said books; and the Auditor was thereupon required to advertise and sell all delinquent resident lands, upon which taxes had not been paid, in the same manner as the property of non-resident proprietors. By the eighteenth section it was provided, that the sale of the lands lying in the Military Bounty Tract, northwest of the Illinois river, on which the taxes were not paid, should take place in the month of January, 1826, and every two years thereafter; and a sale of all the lands lying in the other parts of the State, upon which the taxes should not be paid, in the month of January,"1827, and every two years thereafter: and that, in all future sales of lands for taxes, the Auditor should establish such regulations as he might deem necessary to designate in what part of the tract so offered for sale, the portion of land so purchased should be located, except that such designation was not required to be made, when an undivided portion of a tract only should be sold.
By the eighth section of the Act of January 28, 1826, which was amendatory of the Acts of February Í8, 1823, and January 17, 1825, non-residents were required to list their lands,' and to pay the taxes thereon, on or before the first day of August annually; and in case of delinquency, it was made the duty of the Auditor to proceed to advertise and sell the same, on the first Monday in January annually, agreeably to the provisions of the Acts of February 18, 1823, and January 17, 1825.
By the first section of the Act of January 19, 1829, residents were allowed to list such of their lands as were not situated in the counties of their residence, either in their counties at home, or with the Auditor at the Seat of Government. If listed in the county, they were required to pay the taxes to the sheriff; but if with the Auditor, the payment was to be made into the State Treasury. By the second section, the sheriffs were required on or before the first Monday in March annually, to pay into the county treasuries respectively, the whole amount of the taxes collected by them, on property taxed by order of the County Commissioners’ Courts for county purposes; and in all the counties except those in the Military Bounty Tract, the whole amount of the taxes collected on lands lying within their respective counties; and also, by the first Monday in March annually, to pay into the State Treasury all the taxes arising from the lands in the Military Bounty Tract, as well as the taxes collected on lands lying without the limits of their respective counties. By the third section, the clerics of the County Commissioners’ Courts were required, on or before the fifteenth of July annually, to transmit to the Auditor by mail, a transcript of all the lands listed for taxation in their respective counties; and all lands, when not listed in such counties, were directed to be sold by the Auditor as non-resident lands. By the sixth section, the sheriffs were prohibited from selling lands not lying within their counties; and upon the non-payment of the taxes upon such delinquent lands, the sheriffs were required to certify the facts to the Auditor, who was thereupon directed to credit the sheriffs for the amount of such delinquencies, and to proceed to sell such lands, as though they were the lands of non-resident delinquents. By the ninth section it was provided, that the Auditors should be permitted in describing the lands advertised for sale for taxes, to use letters and figures in denoting ranges, townships, sections, quarter sections, and parts thereof, and the years for which the taxes might be due. The Auditor was also directed by this section to cause the transcript of the lands intended to be sold for the non-payment of taxes, to be published once in some newspaper printed in the State, at least seventy five days before the day of sale: and it was made the duty of the printer to deposit one copy of the list so published with the Auditor of Public Accounts, one copy with the State Treasurer, one copy with the Secretary of State, and to transmit one copy to each of the clerks of the County Commissioners’ Courts of the several counties in the State; and it was thereupon made the duty of each of these officers, upon the receipt of such copies, to file and preserve the same as records in their several offices respectively. It was also provided, that copies taken from these copies, when thus filed as of record, should be evidence in any Court of Justice in the State. It was also declared, that it should not be necessary for any purr chaser of lands at such sales for taxes, to obtain, keep or produce, any advertisement of the sale thereof; but his deed from the Auditor of Public Accounts should be evidence of the legality and regularity of the sale until the contrary should be proved. No exceptions were allowed tobe taken to any such deed, but such as should apply to the real merits of the case, and were consistent with a liberal and fair interpretation of the intentions of the Legislature. By the eleventh section, the sheriffs in the several counties were required to give thirty days’ notice of the time and place of selling lands and town lots for taxes, by written or printed advertisements put up in three of the most public places in the county, containing a description of the lands and lots to be sold; and all such sales, when thus made, are declared “to be good and valid.” A certificate of the sale was required to be given to the purchaser, and if the lands or lots were not redeemed within two years from the day of sale, the sheriff was required to execute a deed to the purchaser, and acknowledge the same before the clerk of the Circuit Court; and the sheriff’s deed when thus made and acknowledged, was declared to “vest a title in fee simple in the purchaser, and to be evidence that the duties required of such sheriff had been performed, until the contrary should be proved.” By the twelfth section, the Auditor was permitted to issue duplicate deeds to purchasers, upon proper affidavits being made, where the originals had been lost or mislaid; provided, a notice of such application had been first published in the newspaper printed at the Seat of Government for three successive weeks prior to such application.
This statement embraces all the material portions of the Revenue Laws of the State, which were in force at the time the land in controversy was sold by the Auditor, January 8, 1831, for the taxes due for the year 1830, and which are necessary to be considered in determining the relative rights of the parties to the present action. It is now gravely insisted, and this Court is called upon to decide, and not without much plausibility of argument, that these laws are unconstitutional; and that the Auditor’s sales of lands for taxes under them from the very commencement of the State Government in 1819, when the first Revenue Act was passed, down to the year 1831, when this land was sold, are all void and without authority, and transfer no title to the purchasers. It will readily be perceived, therefore, that this question involves considerations of no ordinary import.
The plaintiff" in error, by his counsel, contends, that the Revenue Laws under which this land was sold, are unconstitutional and void for the following reasons:
1. Because the mode adopted by the first and second sections of the Act of February 18, 1823, for the classification and valuation of the lands lying within the State for the purpose of taxation, is opposed to the twentieth section of the eighth Article of the State Constitution, which directs, that “the mode of levying a tax shall be by valuation, so that every person shall pay a tax in proportion to the value of the property, he or she has in his or her possession.”
2. Because the tax imposed upon land is a specific, and not an ad valorem tax; and that in adopting such a mode of valuation and assessment, the Legislature has exercised a judicial, and not a legislative function; and
3. Because that portion of the law, which provides for a summary mode of selling delinquent lands for taxes, is opposed to the eighth section of the eighth Article of the Constitution, which declares, that “no freeman shall be imprisoned or disseized of his freehold, liberties, or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty or property, but by the judgment of his peers, or the law of the land.”
As the first and second objections to the constitutionality of the Acts of the Legislature now in question, proceed from the same ground, and involve the same principles in every essential particular, I will proceed to consider them under the same general head, and will endeavor to show, by reason and authority, that the construction of the Constitution assumed to be the true one, and contended for in the argument by the counsel for- the plaintiff in error, is not only at variance with the construction, which was almost universally given to the twentieth section of the eighth Article, at the time of the adoption of that instrument; but that it would, at that early period in the history of our State Government, have been impracticable in its effects, and wholly subversive of one of the most important powers of the State, which lies at the foundation, and is, in every respect, essential to the very existence of the Government.
That the State should possess the power of levying taxes, is a proposition too plain to require argument or illustration, and the whole community is interested in retaining it undiminished. Chief Justice Marshall says, in the case of the Providence Bank v. Billings & Pitman, 4 Peters, 561, that it is a power which operates upon all persons and property belonging to the body politic; that it is granted by all for the common benefit of all, and that all are alike interested in preserving and maintaining it; that in every well regulated community, all the persons should contribute equitably alike, according to their respective circumstances, towards sustaining the public burdens, whether they consist in paying taxes in money, serving on juries, working on roads, or by the performance of militia service; and that the just proportion of each person, must, from the very nature and organization of the body politic, be determined by the legislative authority; that although this important power may be at times abused, and become oppressive in the hands of ignorant, corrupt, or tyrannical representatives, that we must still rely for a corrective, upon the ultimate justice of the legislative body, whose dependence upon the constituent power, furnishes the only constitutional remedy, and security against unjust, unequal and excessive taxation, as well as against unwise and oppressive legislation upon all other subjects affecting the interest of the community. The power of taxation attaches to the land itself, and the State by virtue of its sovereignty, has a perpetual lien upon all taxable lands within its limits, which cannot be divested, whatever changes of ownership may happen by conveyances from one individual to another. It is a paramount lien upon which the government rests for its existence and support; and the constitutional means to enforce it, as the public exigencies demand their exercise, must be provided in some practicable and available form, or the government itself would become dissolved, for the want of this indispensable requisite to sustain it.
Having said this much on the importance of the taxing power, and the means to enforce its exercise, I proceed in the second place to demonstrate, that a reasonable, practical and- convenient construction should be given to the clause in question; and that the mode of classification and valuation, adopted by the Legislature, was a just, practical and convenient mode, and approached as near to an equality of valuation and contribution, as was attainable under the circumstances and difficulties which then existed; while the construction contended for by the counsel for the plaintiff in error, would have rendered the Constitution in that respect inoperative in practice, and the objects intended by it wholly unattainable.
In the case of Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 612, Mr. Justice Story, in laying down the rule for a proper construction of the Constitution of the United States, says, that “if by one mode of interpretation, the right must become shadowy and unsubstantial, and without any remedial power adequate to the end; and by another mode it will retain its just end, and secure its manifest purpose; it would seem upon principles of reasoning absolutely irresistible, that the latter ought to prevail. No Court of Justice can be authorized so to construe any clause of the Constitution ás to defeat its obvious ends, when another construction equally accordant with the sense thereof, will enforce and protect them.”
In the case of McCulloch v. The State of Maryland, 4 Peters’ Cond. R. 466, the same Court not only admits the doctrine to be correct, but lays it down as a rule to be observed, that although the Legislature is limited in the exercise of its powers by the Constitution; still it is supreme within its appropriate sphere of action; and if the end of its action be legitimate, all the means which are proper and necessary, and which are plainly adapted to the accomplishment of the end, may be employed to carry it into effect. The degree of necessity, and the means to be employed, is a question, for the most part of legislative discretion, and not of judicial cognizance.
I will cite no other authorities to prove that such a construction of our Constitution, under the circumstances of the times, was both legitimate and necessary,- and that our early Legislators, with the many difficulties and ■ embarrassments which at that time surrounded them, did not, in adopting this rule of construction, as a preliminary and necessary one, to enable them to obtain the important end' they had in view, and which it was made their duty to accomplish, render themselves obnoxious, either to the charge of having exercised a judicial, and not a legislative power, or of having by unequal legislation, taxed the non-residents of the State higher than our own resident citizens.
Upon this latter subject, the Auditor of Public Accounts, in his sensible and well written Report to the General Assembly in January, 1823, when speaking of the difficulties and embarrassments attending the assessment and collection of the public revenue, and of the indisposition of a large proportion of the non-resident delinquents to pay their taxes until compelled at law, says: “The Auditor respectfully re-' commends the passage of a law authorizing a sale as soon as practicable of all the lands, bank stock, &c., of non-residents, who have failed to pay the tax due thereon, and to enable the State with more certainty to carry into effect all sales made for taxes, let the tax title be positive evidence of the purchaser’s right to the land; and under no circumstances whatever should the sale be set aside, unless it be first shown, that the taxes have been paid to the legal officer. This would induce owners to pay their taxes promptly, and enable the State to calculate with certainty on the quantity of land, from which an annual revenue might be raised. It is thought that the present system of taxation hears upon the citizen and non-resident with as much equaliiy, as any other mode which may for the present he adopted. For it may be remarked, that the complicated concerns of finance can receive but little advancement or convenience to the people, from too frequent changes in the plan of supplying the public revenue.”
I have made this extract from the Report of the Auditor, who seems to have bestowed much reflection upon the subject, for the purpose of showing that the then existing system of finance and revenue, by classification and valuation, approached as nearly to equality, so far as non-residents and residents were interested, as any other that could have been adopted; and that his opinion was opposed to any innovation upon the system at that session, which might possibly be in the contemplation of the legislative body.
As to the objection of its having been the exercise of a judicial, and not a legislative function, I refer for authority to the very lucid reasoning of Judge Hopkinson, of Pennsylvania, in his learned and highly interesting charge to the jury, on the trial of the case of the Lessee of Livingston v. Moore, in the Circuit Court of that State, which may be found in the Appendix to the 7th volume of Peters’ Reports, 655 et seq. That case, like the one under consideration, involved the question of the validity of the title to certain lands which had been sold for taxes under the authority of the State of Pennsylvania, in satisfaction of certain liens held by the State; when, among other questions, the objection was raised, as in this case, that the law under which the lands had been sold, was opposed to the Constitution of that State, for the reason that in its passage and enactment, the Legislature had improperly exercised a judicial, and not a legislative power. The Judge in his charge to the jury said: “Every Government assumes, and rightfully has the power to take care of its own revenue, to protect it by extraordinary securities, and to collect it by extraordinary remedies. Without this power and the liberal exercise of it, the Government might be thrown into ruinous embarrassments, and distressing disappointments and delays, in meeting the expenses of the public service;” 655. “The position that a Legislature cannot constitutionally perform a judicial act, is supported by no authority, nor has it any reason in public policy or convenience. On the other hand, it is contradicted, by legislative usage, and the highest judicial decisions.” 668. The Constitution, which divides the powers of the Government under three general heads, to wit: Legislative, Executive, and Judicial, “is only a declaration of the general system, or theory of our government, and wa$ never intended to fix exact and impassable limits to each department. There are things necessary to be done in the" administration of the government, of a character so mixed and blended, partaking of the elements of all these divisions of power, that we could not know to which to assign it. So has the Supreme Court adjudged in several cases, at least,, in relation to the Constitution of the United States.” 668.
Even if it should be admitted,, which is not necessary in this respect, that the system adopted for assessing and selling the lands for taxes in this. State partook somewhat of a judicial as well as legislative character, still, according to this opinion of Judge Hopkinson, the principles of which, he says, have been frequently recognised by the Supreme Court of the United States, the acts of the Legislature in adopting it would not be unconstitutional. See, for instance, the case of Calder & wife v. Bull & wife, 1 Peters’ Cond. R. 172; where the Legislature of Connecticut in 1795, passed a law setting aside a decree of the Court of Probate of Hartford, which had been made on the 21st day of March, 1793, and granted a new hearing by the said Court of Probate, with the right of appeal in six months, &c. Held, by the Supreme Court of the United States, that this Act by the Legislature was not unconstitutional.
The Legislature has not declared by the Act, what the valuation of the land shall be, but have left that to be determined by the owner himself; except that certain and defined limits have been prescribed to prevent the abuse of that right, by keeping its exercise within proper and reasonable boundaries. The law provides, that all the lands lying within the State, shall, for the purpose of taxation, be divided into three classes, according to quality; and the owner himself is permitted to designate the class to which his lands properly belong. If to the first class, the valuation was fixed by the law at four dollars per acre; if of the second class, at three dollars per acre; and if of the third class, at two dollars per acre. A quarter section of one hundred and sixty acres of land of the first class would, conseqúently,be valued at the sum of $640; of the second class, at. $480; and of the third class, at $820. A tax of one half per centum,.per annum was then imposed by the Act upon all the lands in the State, whether belonging to residents or non-residents; which, according to the foregoipg rate of assessment, would be two cents on the acre per annum oq. lands of the first class; one and a half cents per acre on lands of the second class; and one cent per acre on lands of the third or last class. Surely such a tax as this could not' be justly considered as being either unequal or oppressive, as it is a fact well known in our financial history, that non-residents especially were almost in the universal habit of-availing themselves to the full extent of their privilege, by listing their lands for taxation, as belonging to the third class, with a tax of one cent only on the acre per annum, which, upon an entire quarter section of one hundred an¡l sixty acres, would only amount to the sum of one dollar and sixty cents for the current year.
Having endeavored to prove, that the system of classification and valuation was the most equitable and convenient, I proceed, in the next place, to show that a valuation of the lands by personal examination and inspection, as contended for by the counsel for the plaintiff in error, .would not only have been inconvenient arid expensive to the State, but absolutely impracticable; and instead of saving the Constitution from the. rude assaults, which are supposed to have been made upon it in this particular, would have effectually defeated its end and object. At the time of the passage of the Acts of 1819 and 1823, most of the patented -lands in the State, which were subject to taxation, were situated in the Military Bounty Land District, which, for the most part, was but sparsely settled, and almost entirely unexplored by any, except the United States surveyors, a few hardy and adventurous hunters, and the aborigines of the country;- many of the latter still claiming and exercising the native right of roaming, ad libitum, over the wide spread prairies of that fertile, abd now highly cultivated portion of our State.
Many of these lands, which have been transferred by the soldier, became taxable as far back as the ye.ar 1818; but all of them, amounting to several millions of acres, became subject to taxation for the- year 1822, even in the hands of the soldiers, to whom they had been patented for military services. The' owners of the lands themselves, as a general rule, were ignorant of their location; but few, if any, lived upon them, or in their vicinity; most of the monuments, which had been erected by the surveyors on the prairies to designate the surveys, had either been destroyed by fire, or other casualties; none but practical and experienced surveyors could have traced.out the lines, and designated the several tracts with any degree of certainty; and as to the fixing of a cash valuation to each of these tracts, by personal inspection, it was a thing .impossible. Besides this, the expenses of such an experiment, for I can call it by no other name,—would have necessarily amounted to a sum far exceeding any reasonable amount of taxes, that could, with any degree of propriety, have been assessed upon these lands.
It is the-best system, and the only mode by which uniformity of taxation can be secured. For if the valuation and assessment should be made, either by assessors to be appointed for that purpose, or, by the individual owners of the-land, either with or without oath, as to the true value of the property, the valuation in the different counties, would be almost as different, as the counties themselves differ in number, location and population. In some counties property would be valued at a high rate, in others at a reasonable price, arid in others, again, at a very low rate. Taxes would thus become unequal, the burdens of the Government would not be equitably distributed among our citizens, all uniformity would be destroyed, and the object of the Constitution would not be accomplished; while by the classification system, this inequality to a great extent would be prevented, by keeping all the portions of the body politic within the limits prescribed by the Legislature.
It is also the most convenient mode in another respect, by no means unimportant in considering the advantages and disadvantages of the system objected to by the counsel. It consists in this; the revenue officers of the State, by having access to the land offices of the United States, can readily ascertain the whole amount of lands sold and patented in the State, when sold and patented, and at what time under the compact with the' United States, the same will, or have become subject to taxation. With this knowledge acquired, if any given amount of revenue should be wanted for the public service, and it should become necessary and proper to raise that amount by a tax on land, the average rate of taxation necessary to raise the sum required, could be much more easily and certainly ascertained, than by any arbitrary mode of assessment, where no certain value could be attached to the land.
Suppose, by way of illustration, the State should require, for any legitimate purpose, the sum of $160-000, and it was proposed to raise this sum by a tax on land, there being 16-000-000 of acres of. taxable lands in the State; and the Legislature should call upon the Auditor for information as to the proper amount of per centum to be levied on the acre to produce the sum demanded; under which system could he most readily and certainly afford the desired answer? If, under the system of classification and valuation, he would be enabled at once to make something like a reasonable average by placing his estimates between the two extremes of four and two dollars per acre, and calculating his average per centum upon the second' class at three dollars per acre. But, at all events, he could say .to the Legislature, “You cannot fall below the minimum valuation of two dollars per acre, and one cent per acre, or one half per centum upon the gross amount of valuation will give you'the precise sum required.” In making provision for the assessment, when thus ascertained, the Legislature would certainly know that the amount to be levied, could not fall below that sum, although it might rise somewhat above it. While under the mode insisted upon by the counsel, as the only true one under the Constitution, there would be no land marks to direct the Auditor in making the estimate; and the Legislature in imposing the tax might, for the want of this necessary information, raise a much larger sum, than was demanded by the exigency, or do what is much more probable, raise a sum so small, as to be totally inadequate to meet the proper demand of the Government. It will be seen, therefore, that by the old system, equality and uniformity of contribution will be preserved to a great extent, while by the latter, taxation will become unequal and the resources of the State rendered precarious and uncertain, and to a considerable extent entirely unavailing for any useful purpose whatever.
But we are also met with the objection, that under the old system of taxation by classification, a quarter section of land, with valuable improvements upon it, is taxed no higher than a quarter section in the same class as to quality of soil, with no improvements at all. Extreme cases doubtless existed in many instances, which might seem, without taking a general survey of the whole ground occupied, to condemn the system for want of uniformity. But there are no general rules without their exceptions, and so, in this respect, it will be found upon a just consideration of the whole subject, that the cases enumerated were rather exceptions to the system, than as tending to prove that the system itself did not, under all the attendant circumstances, approach nearer to practical uniformity and equality than any general system that could ■ have been devised at that time, having for its leading object an actual cash valuation of the land, by personal inspection and examination; and by persons appointed for that purpose under authority from the State, to value each tract according to its actual and intrinsic worth in money.
The Chief Justice of the Court of Appeals of Kentucky, when speaking upon the subject of uniformity of taxation, in delivering the opinion of the Court in the case of The City of Lexington v. McQuillan’s Heirs, 9 Dana, 516, says: “The questions as to when a tax shall be levied, to what amount, and what classes of property are the fittest subjects of taxation, are wisely confided by our Constitution to legislative discretion. But still there are well defined limits, within which the practical ■ equality designed by the Constitution may be preserved, notwithstanding an exact equalization of the burdens of taxation is unattainable and utopian. Nor will a slight irregularity as to the prescribed mode of contribution, nor the want of universality of interest in the application of it to the purposes of improvement, prove that such a requisition would be either unconstitutional or unjust. For it is absolutely impracticable from the very nature of things, that all the citizens of a community can be equally benefitted by any public improvements, or that the public burdens can be so apportioned in every particular as to operate with exact uniformity upon every individual composing that community.”
I now propose, in concluding my remarks on this branch of the subject, to show according to contemporaneous construction, which is laid down in our law books as one of the unerring tests of the true interpretation of a Constitution or statute, that the construction given to the Constitution by the Act of 1819, and afterwards in 1823, was in accordance with the true and proper interpretation of that instrument, as it was designed to be understood by its framers. I have before remarked that the Act of 1819, in regard to the classification and valuation of lands for taxation, was identical with the Act of 1823. That Act was passed on the 27th of March, 1819, while the Legislature still sat at Kaskaskia, a few months only after the adoption of our State Constitution, and as it gave the first, so it may justly be considered as having given the true construction to the 20th section of the eighth article of that instrument, which is now supposed to be violated, in the passage of the law under which this land was sold. Many of the members of the Convention were also members of the Legislature at the time of the passage of the Act of 1819, as well as that of 1823; and it is but fair to conclu.de, according to the proper rules of intendment and construction, that not only the true interpretation Was adopted, but the very one which was in the contemplation of the members of-the Convention, at the time the section in question was inserted.' The Governor and Judges of the Supreme Court, acting as a Council of Revision, whose official sanction also these laws received, were all men of experience and-observation. . Several of them were present at the seat of Government during the debates in the Convention, and up .to the time the Constitution was adopted, and were doubtless well acquainted with the meaning at that time attached, not only to the twentieth section of the eighth Article, so often referred to, as well as to most, if not all, of the- other provisions it contained. It would be unreasonable in the', extreme to presume, that such a violation of one of the most important clauses it contained, would have been silently permitted to be perpetrated, and no one honest, or bold enough to raise his voice against it.. This was, unquestionably, its well known and almost universally received meaning at tire times alluded to, and the constrution given to it by the Legislature having been acquiesced'in for so many years afterwards, ought no.t now to be disturbed and unsettled at this late day, when many of the reasons which influenced the conduct of our predecessors, who lived under very different circumstances from those who now occupy their station, may riot be known or appreciated, by their, successors who are comparatively strangers to'their talent and their worth.
Again, if the construction contended for by the counsel be correct, that in the language of the Constitution every person must pay a tax according to the value of the property in his or her possession; and that nothing is to be exempted from the general-contribution, and no discrimination permitted by the Legislature; then, any law exempting lands from taxes, which had been purchased, or donated for religious, literary, or charitable .purposes, not even exempting our city cemeteries, Would be unconstitutional, and all the proceedings under it, void. Such a construction would not only be impracticable, but in many instances unnecessarily oppressive, and against the common sense of the community.
In concluding my remarks on this branch of the subject in regard to classification and valuation, I will only add, that if still stronger proof is wanting, of not only the justice and wisdom, but absolute necessity of the old system of classification and valuation, .under which the land in controversy was assesséd and sold for the taxes due upon it, that it may be found in the fact, that since these old .regulations have been repealed, and the new mode of valuation and assessment adopted without any legislative restriction; and the further security resorted to, of requiring a judgment and execution previous to the sale of the lands of delinquents for taxes, by a kind of quasi judicial proceeding,- unknown to the Common Law, and to more than four fifths of the States in the United States, in order to remove the Constitutional objections, which have been urged with so much zeal and ability in the present controversy. The Legislature with all the new lights which have been shed.upon the subject, have been constrained at length to acknowledge the propriety and .necessity of the essential feature of the old repudiated system, by falling back upon the minimum provision principle, and declaring that “no lands shall be valued at a less sum -than three dollars per acre;” and this, too, for the purpose of preventing the most unjust and unequal taxation, and to save the treasury itself from bankruptcy and ruin.
I come now to consider the remaining branch of this subject, wherein it is insisted, that the eighth section of the eighth Article of the Constitution has been violated, because the former owner of the land in controversy, was deprived of his “freehold” by a summary proceeding and sale by the Auditor, without the judgment of his peers, and against the law of the land. The clause in the section referred to, is in the language of the corresponding clause in the twenty ninth chapter of Magna Carta, and reads as follows: “No freeman shall be imprisoned or disseized of his freehold, liberties or privileges, or outlawed or exiled, or in anymanner deprived of his life, liberty, or property, but by the judgment of his peers, or the law of the land.” Upon this clause it is gravely contended, that the laws in question are unconstitutional, because the plaintiff in error has been disseized of his “freehold,” without a trial by jury, and without judgment and execution, which they contend is the meaning of the words “judgment of his peers,” and “law of the land.” In order to give a proper exposition to these words, it will be necesary to examine, and ascertain when, and under what circumstances Magna Carta was obtained, and what meaning has been adopted by the judges and ancient law writers in England, from whence it derives its origin.
In the time of King John, and his son Henry the Third, the rigors of the feudal tenures were so warmly maintained and enforced by the Crown, that they occasioned many insurrections of the Barons, who were the principal feudatories, which at last had this effect; that first, King John himself, and afterwards his son Henry, consented to the famous Magna Carta, which has ever since been regarded as the foundation of the liberty of Englishmen. The following is in the original language of the twenty ninth chapter of that famous instrument: “¿Vidius liber homo capiatur, velimprisonetur, ant disseisiatur de libero tenemento suo, ve llibertatibus, velliberis consueludinibus suis, aut vtlagetur, aut exulet, aut aliquo modo destruaiur. ¿Vec super eum ibimus, nee super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae', nulli vendemus, nulli negabimus, aut differ-emus rectum vel justitiam'” that is, “no freeman shall be arrested or imprisoned, or disseized of his own free tenement or his liberties or his own free customs, or outlawed, or exiled, or in any manner ruined or destroyed; nor will wetrample upon him, nor will we condemn him, unless by the lawful judgment of his peers, or the law of the land; to none will we sell, to one will we deny, or delay right and justice.” Mr. Sullivan, in the second volume of his Lectures, page 243, says: “The words liber homo, in the ancient Acts of Parliament, is in general rightly construed “freeholder,” and so it means here in the second branch which prohibits disseizins; for none but a freeholder is capable of being disseized, no others being- said to have a seizin in the land.” Lord Coke, in commenting upon the words, nullus liber homo capiatur, vel imprisonetur, says that the Act extends not only to prevent private persons, particularly the great men, from arresting and imprisoning the subjects; but extends also, to those from whom, on account of their extraordinary power, the greatest damage might be apprehended, that is, the King’s ministerial officers, his council, and himself in person. “No man,” he says, “should be taken;” that is, restrained of his liberty, by petition or suggestion to the King or his council, unless it be by indictment or presentment of good and lawful men, where such deeds be done. For in that case, it is per legale judiciumparium: though an indictment found, or a presentment made by a Grand Jury, in one sense, cannot properly be called judicium^ as it is not conclusive; but the fact must afterwards be tried by a petit jury of twelve good and lawful men.”
The effect of the Magna Carta, which was in the nature of a Constitution or Bill of Rights, was to impose a limitation upon the improper exercise of the King’s prerogative; and the objects intended to be secured by this important concession on the part of the Crown, have been classed under six general heads:
1. To secure the personal liberty of the subjects;
2. To preserve his landed property from forfeiture;
3. To defend him against unjust outlawry;
4. To prevent unjust banishment;
5. To secure him against all manner of destruction; and
6. To restrict and regulate criminal prosecutions at the suit of the King, by securing to the subject a proper administration of justice through the means of Courts and Juries, conformable to the principles and usages of the Common Law, independent of the will and caprice of the sovereign power.
The words per legem lerrae, “by the law of the land,” as used in Magna Carta in reference to this subject are understood to mean “due process of law,” that is, by indictment or presentment of good and lawful men; and this, says Lord Coke, is the true sense and exposition of these words. 2 Coke’s Inst. 50; 2 Kent’s Com. 13, and note b.
Mr. Sullivan, in the second volume of his Lectures, 276, in commenting upon the words, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, autper legem terrae, observes, that ?£from the words here being in the first person, they refer to the suit of the King; and relate not only by the latter words, to a legal trial, as to matter and form, but also to a trial in a proper and legal Court. .The words nec super eum ibimus, belong to the King’s Bench, where the suits of the King, the piadla coronac, are properly handled, and where-the King is always supposed to be present. The words super eum mittemus, refer to other Courts sitting for the same purposes, as Justices of jail delivery, for instance, under the King’s Commission, &c.”
Chief Justice Ruffin says, in the elaborate opinion delivered by him in Hoke v. Henderson, 4 Dev. N. C. R. 15: “The law of the land in Bills of Right does not merely mean an Act of the Legislature, for that construction would abrogate all restriction on legislative authority. The clause ■means that statutes which would deprive a citizen of the rights of person or of property, without a regular trial according to the course and usage of the Common Law, would not be the law of the land in the sense of the Constitution. Judgment of his peers, means trial by a Jury of twelve good and lawful men according to the course and usage of the Common Law. And even in private suits, the trial by jury is preserved by the Constitution-of the United States, where the value in controversy exceeds the sum of twenty dollars.”
It is'evident from the language of Lord Coke, who was justly considered' in his day as one of the ablest expounders of.the Common Law, that these expressions in Magna Carta were intended to apply to criminal, and not to civil proceedings. And I have not been able to find any definition in the ancient authorities, which does not, as Lord Coke has done, thus limit their application. So that all trials for crimes, or supposed criminal offences, should be conducted according to the course of the Common Law.
It is very certain, that if it was also intended to relate to civil proceedings, that it must be taken in a very limited and restricted sense; as otherwise the summary mode of proceeding by distress for rent, &c., both in England and in this country, would be in derogation of this important right. Courts of Chancery, also, have no juries, and do not proceed according to the course of the Common Law. So there were at this time in England, the Ecclesiastical Courts, Courts Military, and Courts Maritime, in,none of which is the trial by jury known or recognized. So, in regard to some other inferior judicatories, Mr. Sullivan says, “certain matters are intrusted to their determination without the intervention of a jury,” and among them, he mentions the “Commissioners of the Revenue.” And such is the law under the Constitution of the United States, in all matters in controversy, where the amount claimed shall not exceed the sum of twenty dollars.
As to the right of selling lands for taxes in a summary manner by the collectors of the revenue, Judge Hopkinson says, in his charge before referred to: “Lands are sold for taxes without an inquisition, and by a very summary process, and this has never been deemed illegal or oppressive,” Again, in speaking of the Revenue Laws of Pennsylvania, he remarks: “These Revenue Laws have never been questioned as infringing the right to a trial by jury, or as violating any part of the Constitution.” ' 7 Peters, 664, 669. He also says, that the construction put upon a similar clause in the Constitution of Pennsylvania by the counsel in the case of Livingston's Lessee v. Moore, as to the meaning of the words, “judgment of his peers, or the law of the land,” which is the same construction contended for by the counsel for the plaintiff in error in this case, was repudiated by the opinion of the Court in the case of Stoddard v. Smith, 5 Binn. 355; and that the clause referred to, does not mean that the property of a person may not be made to answer for his debts, in any other way than by the usual and established modes of proceeding to recover debts, and the general laws of the land on that subject.
In this case, the counsel have assumed, that the true interpretation of the words, “due process of law,” mean “judgment and execution;” and contend that, in a case like the present, where the whole taxes, interest and costs, for which the land was sold, only amounted to the sum of one dollar and eighty two cents, that being the whole amount due and chargeable for the year 1830, the party was entitled to a jury, and that it was necessary that a judgment and execution should have been obtained on the part of the State, before the delinquent “freeholder” could be deprived of his land in the due course of the Common Law, where the amount in controversy, in such a trial, would not bear the proportion of a tithe to the costs, which would necessarily be the consequence of adjudications so novel and extraordinary.
I find upon an examination of the statute laws of twenty of the States, exclusive of Illinois, that in nineteen of them, the sales of lands for taxes are by a summary mode of proceeding, without trial, and without judgment; and that in Tennessee alone, from whence, perhaps, our own new system derived its origin, this novel mode prevails of requiring a judgment before the delinquent tax payer can be divested of the title to his land.
The fifth article of the Amendments to the Constitution of the United States contains this clause: “No person shall be deprived of life, liberty, or property, without “due process of law;” and the words “due process of law” have been shown to correspond in meaning, to the words, “law of the land,” in the eighth section of the eighth article of our own State Constitution. Now, as the Constitution of the United States, in this respect is obligatory upon all the States of the Union, it is not strange, if the construction contended for by the counsel for the plaintiff in error be correct, that “due process of law” means trial, judgment and execution; that of all these States, from the foundation of the Government up to the present time, Tennessee and Illinois alone should have made the discovery, that they were violating the Constitution of the United States, which is every where admitted to be the supreme law of the land, by depriving the freehold citizen of an important right, which was secured by his Anglo-Saxon forefathers by Magna Carta, and divesting him of his property without “the judgment of his peers, or the law of the land.”
- Again, it is contended, that the Auditor’s deed was improperly admitted in evidence to the jury without proving its execution in the first instance, and, in the second place, that all the pre-requisites of the law, in relation to the advertisement and sale had been complied with, and in support of this latter proposition, the case of Parker v. Smith, 4 Blackf. 70, and Carlisle v. Longworth, 5 Ohio, 229, have been referred to as authority.
In regard to the first objection, that the Auditor’s deed should not have been permitted to have been read to the jury, without preliminary proof of its execution, it is only necessary to say that our Registry Laws do not apply to Patents or deeds emanating directly from the State, or the United States. An Auditor’s deed, therefore, is admissible in evidence, without proof of its execution, and without showing that it had been regularly acknowledged and recorded, as is required in cases of conveyances, alone affecting the interests of private individuals. The ninth section of the Act of 1829 contains this provision: “It shall not be necessary for any purchaser of lands at such sales for taxes, to obtain, keep, or produce any advertisement of the sale thereof; but his deed from the Auditor of Public Accounts shall be evidence of the legality and regularity of the sale until the contrary shall be proved.” Still, the counsel contend, that this provision does not dispense with proof on the part of the purchaser in the first instance, that all the requisites of the law in relation to the advertisement, sale, &c., had been complied with, before the Auditor’s deed could be properly admitted in evidence.
Although the decisions in Ohio and Indiana, which are predicated upon statutes somewhat similar to ours, are not in my opinion warranted, either by the plain and obvious meaning and import of the language of the Acts themselves, and still less, if the spirit and intention of the Legislature is to be resorted to for a construction,—judging from the intention of the Legislature in our own State, and in relation to our own Act,—still, admitting them to have given the proper and legitimate construction to the Acts of their respective States, they cannot be regarded as authority in determining the intention of our own Legislature, or of the meaning of language, which is so plain and palpable, that he who runs may read and understand it.
The statute of 1824, of Indiana, provided that the Collector’s deed should be prima facie evidence of the regularity of the sale. In the case of Parker v. Smith, 4 Blackf. 70, 71, the Court decided that;, under the statute, the Collector’s deed furnished no evidence that the tax had been legally assessed,-or that it had not been duly paid, or that the land was not exempt from taxes; that, under the statute, such a deed w as prima facie evidence, and nothing more, of the regularity of the proceedings-relative to the purchaser’s title, so far as the acts of the Collector were concerned. The effect of this decision is explained in note (1) at the bottom of the case, by reference to a decision made at May term 1838, where all the Collector’s proceedings, after the receipt of the precept.requiring him to sell, are held prima facie to be legal and regular. It was only determined that the precept authorizing him to sell, must be proved aliunde, as the deed itself was no evidence of the Collector’s authority to sell.
These decisions do not warrant the conclusion, that under our statute, it would be necessary to prove the advertisement and sale. They only relate to the Auditor’s authority to sell, which has already been' determined in effect, by the decision upon the question, that a judgment and execution would not be necessary,' before the sale would be legal under the Constitution of the State. This decision admits, that if the Auditor had authority to sell, then all his acts under the statute afterwards are to be considered prima facie regular and legal. How can the counsel insist, upon this authority, that the onus is upon the purchaser, in the first instance, to prove either the advertisement or the sale?
The decision in 5th Ohio Reports was predicated upon the ninth section the Act, contained in the 23d volume of the Ohio statutes, page 89, which was as follows:' “The deed made by the County Auditor as herein before specified, shall be received in all Courts as prima facie e vidence of a good and valid title to the purchaser.” Hitchcock, J. who delivered the opinion of the Court, said: “The Legislature do not say that a deed made by the County Auditor, on a sale for taxes, shall be received as prima facie evidence of a good and valid title; but the deed as hereinbefore specified, or in other words, the deed made in pursuance of this Act.” From which phraseology he infers that the Legislature did not intend to dispense with proof of the pre-requisites of the law, before the, deed itself could be received as prima facie evidence of a good and valid title. It appears from this language of the Judge, that he laid great stress on the vow el'a, and the definite article tlie‘, and that the construction of the statute, as well as his own opinion, would have been very different, if the Act had declared, “that a deed to be made by the County Auditor, instead of the deed to be made by the County Auditor, shallbe received as primafacie evidence of a good and valid title,” with the omission of the words “as hereinbefore specifiedfor the Judge also attached great importance to-these latter words, “as hereinbefore specified.” As it was, he determined that before the deed could be received as evidence, it must be shown that the Auditor had authority to make it; and this, he said, was to be done “by showing that the land had been advertised and sold for the taxes,” and that in connection with this preliminary evidence, that is, “by proving the advertisement and sale, the deed will be received, and the Legislature has declared its effect.” This is the substance of the decision in that case, from which Judge Collet dissented. Carlisle v. Longworth, 5 Ohio, 229.
All that this case decides, is, that it is necessary under the act of Ohio, to prove “the advertisement and sale,” and that then the Auditor’s deed, by virtue of the prima facie provision in the statute, might be read without further proof. Now, will it be seriously insisted that this is a case in point, and that under our statute it is necessary for the purchaser, as preliminary to the introduction of the Auditor’s deed, to prove the advertisement and sale ? The Act of 1829, ex-expessly declares “that it shall not be necessary for any purchaser of lands at such sales for taxes, to obtain, keep, or produce an advertisement of the sale thereof; but his deed from the Auditor shall be evidence of the legality and regularity of the sale until the contrary shall be proved; and no exceptions shall be taken to such deed, but such as shall apply to the real merits of the case, and are consistent with a liberal and fair interpretation of the intentions of the Legislature.” The language is express, that the purchaser shall not-be required either to obtain, keep, or produce a copy of the advertisement to entitle him to the prima facie presumption resulting from the production of the Auditor’s deed. Can any one entertain a reasonable doubt of the intention of the Legislature in this respect?
But it may be asked, if it is intended by this decision to dispense entirely with all evidence, and to consider the Auditor’s deed sufficient of itself to transfer a good and valid title to the purchaser? We answer, by no means; that it is as essential now to the validity of such a deed, as it was before the passage of the Act of 1829, to show that the law in all its parts should have been strictly pursued by the Auditor in relation to the advertisement and sale; and that a material omission in these respects will be as fatal now, as it would have been before the passage of that Act. All we determine is, that the burden of proof, in the first instance, has been removed from the shoulders of the purchaser and transfered to those of the delinquent tax-payer, where it was intended to be placed by the Legislature, for the best of reasons. For if the State has the power to sell the lands within its limits for taxes, it is its duty to see that valid titles are made to those who may become purchasers at such sales; and to protect these purchasers, if possible, by wholesome, and appropriate enactments, not only against expensive and ruinous litigation, but also against the alarm and apprehension which have heretofore had such an effect to depreciate the value of their lands when thus purchased, by creating a distrust in the public mind as to the validity of their titles when thus acquired from the State. This duty, the Legislature has endeavored to perform, and it is for the Court now simply to declare, that their Acts are valid, and to give to them their intended effect.
But it may also be asked, if. we attach no weight to the rule of strict construction, which has been adopted, and so frequently acted upon against purchasers at the sale of lands for taxes, by the Supreme Court of the United States? To this we answer, that the very object of our Statute was to change that rule; and that the Legislature had the constitutional right to make the change, whenever justice and equity seemed to demand it. But, as I before remarked, the law does not intend, by making these deeds prima facie evidence of title, to dispense with proof that the pre-requisites of the law have been complied with; it does not dispense with notice by advertisement, or permit the sale to be made in any other manner, or at any other time or place than that prescribed by law. Neither does it deprive a man of his land where the taxes have been paid, or when the land is not subject to taxation; for the law intended to divest the title of the owner for the non-payment of taxes, and for that only, and it must be so construed. The title of the purchaser is, therefore, contingent, so far as it may be affected by establishing the fact that the tax had been paid before the sale was made. This is an implied condition annexed to every sale for taxes, and the purchaser takes the land subject to this risk, and if his title should afterwards be defeated upon this ground, his only remedy is by application to the State for relief. But if the taxes have not been paid, then every legal intendment, according to our statute, as well as according to the principles of equity and justice, should be most strongly against the former owner of the land; and it is imposing no unreasonable hardship on him, to show that the pre-requisites of the law have not been complied with. As to whether the land is subject to taxation or not, or whether the taxes have been paid or not, are facts within his own knowledge, and as a matter of course, he is presumed to know them better than the purchaser; and as to all the other facts affecting'the legality of the sale, the proofs are alike accessible to the one as the other. But the presumption in the .first place, is, that he has not paid the taxes; that he is in default in hot having contributed his just proportion to support the burdens of the Government;' and the advantage he seeks, therefore, by showing that the law has not been complied with, instead of-showing that he has paid the taxes, being purely technical, and against the true merits of the case; it is but just and reasonable that the onus should rest upon his shoulders, where the Legislature has most justly placed it, and this rule will be found in practice, I have no doubt, to be agreeable to good policy and the-public interests; particularly when it is to be considered, that disputes as to the meaning and effect of the revenue laws, most generally arise in consequence of attempts, often- wholly unjustifiable, to evade them. 3 Tomlin’s Law Dict. 571, title, “Taxes.”
The only remaining question relates to the defence which was also set up at the trial, under the occupying claimant law, which was passed on the 17th of January, 1835, and took effect the 1st of June of the same year. Upon that subject we are of opinion, that the Act should not be so construed as to give to it a. retrospective operation; and that, consequently, it does not oppose a bar to a recovery, until a term of seven years after it went into effect.
The result of our opinion, therefore, is:
1. That the Revenue Laws of the State, which have been referred to, are. not unconstitutional; •
2. That under .the Act of 1829, the • Auditor’s deed is prima facie evidence that the pre-requisites of the law have been complied with; and
3. That the Statute of Limitations, passed the 17th of January, 1835, and in force the 1st of June of- the .same year, is not a bar to a recovery, until the term-of seven years after it went into effect. -
Judgment of the Court below affirmed with costs. •
Justices Purple and Koerner were not on the Bench when this cause was argued and decided. Judgment was entered at the December term 1843, but the Opinion of the Court was not delivered until the present term.