The following separate opinion was delivered by
Purple, J.I fully concur in opinion with the majority of the Court, in affirming and reversing the above judgments. I am, however, constrained to dissent upon one point. Whatever my individual opinion may have been upon the question of the constitutionality of the former revenue law of this State, I consider the question no longer an open one. It has been settled by repeated decisions of this Court, and should not again be agitated. But upon the point of the repeal of the law of the 19th February, 1827 by the Act of February 28th, 1833, I think the judgment of the Court is wrong. I may admit, that it was not intended by the legislature, but yet I cannot concede that they have not done it. I regard the 4th section of the Act of 1827 as the only one which confers any authority upon the Auditor to make a deed. In this alone the power is given, and the form of the deed prescribed. It provides that the purchaser, on presenting the Treasurer’s receipt for the payment of the money, shall be entitled to receive, at his option, either a certificate of purchase or a deed in the following form, to wit: (here follows the form of the deed to be made by the Auditor.) If the 25th section is examined, it will be found that it confers no new power, but was only passed with the intention and design of regulating the exercise of one already supposed to exist. It is as follows: “All sales of lands for taxes, whether by the Auditor or Sheriff, the officer selling the same, shall, previous to the sale, designate in what part of the tract the part sold shall be located, and shall make his deed accordingly.” Clearly, to my mind, this provision pre-supposes that the Auditor has already authority to make the deed, and was only enacted for the purpose of defining the specific duties of the officer In the execution of a power already conferred by law.
I agree to the affirmance and reversals of the judgments, because I believe that independent of any legislative enactment to that effect, the power to sell necessarily carries with it, by implication, authority to make a deed for the land so sold; and for the reason, that the purchase under the law which requires the Auditor to make a deed, is a contract between the State and such purchaser; that the law under which such contract is made, is a part of the contract itself, and that the same cannot be unconditionally repealed, without a violation of the obligation of the contract, and a consequent infringement of the 10th section of the 1st article of the Constitution of the United States.
Treat, J. said: Justice Purple. I concur in the views expressed by Mr.
Judgment affirmed.