Martin v. Cole

OPINION ON REHEARING.

Beck, J.

— An opinion was filed in three cases in the December Term, 1872, of this court, reversing the judgments rendered therein by the District Court. A petition for a ■rehearing was filed under the rules of the court and a re-argument permitted'. This order was made on the grounds that counsel, in their petition for a rehearing, claim they were led into the belief, by expressions found in opinions rendered by this court in prior cases, that the main 'point determined by us in bur opinion heretofore rendered in this case, namely, a sale of a section of land en masse for taxes and a tax deed, made under such sale, conveying the land by a like descrip*149tion may be valid, had been, by this court, determined otherwise; and that they understood counsel for appellant to admit this and to rely solely upon the tax deeds conveying the lands by descriptions and quantities less'than .a section. For these reasons, they claim, the point stated did not receive proper consideration in their former arguments. In the re-argument this point has been fully discussed and counsel for both sides have had all the time required by them for the consideration of the question and for a full and free criticism of our former opinion. 1

Our conclusions heretofore announced have not been changed by the extended and able arguments submitted by appellee’s counsel, which have received the most patient and considerate attention from each member of the court. ■ On the contrary our confidence in their correctness has been strengthened, and we have become thoroughly satisfied that no way of escape therefrom can be found. Counsel, it seems to us, have adduced every argument and consideration against these conclusions which ability, ingenuity, zeal and- industry are capable of discovering. There remains, in our opinion, nothing more to be said on the • subject. The question is one of no great compass, involving the construction of a statute and thereby the discovery of the the legislative will. As we have before had occasion to remark, that will when discovered, if within constitutional bounds, must be obeyed by this court although found in a revenue law and prescribing rules for the enforcement of -the collection of taxes and providing for the sale of lands for that purpose. We have yet to learn that any respectable legal authority holds, or any good citizen would demand, that this court may or should disregard a constitutional law of the state, on the ground that, thereunder, titles of lands may be divested by sales for delinquent laxes and that in its operation and effects, it is marked by severity toward those who refuse or fail to pay their taxes. It is the duty of the courts of the State to uphold and enforce all constitutional laws. Much of what has been said upon the re-argument of this case is directed to pointing out the hardships wrought by the law and the abuses that may spring therefrom. With *150these we have nothing to- do. Such considerations should be addressed to the legislative department of the government. The law has been in force for more than thirteen years and whatever changes have been made have added to rather than diminished the severity complained of; we must presujne that all this time it has not wanted legislative approval. This court' has not hesitated to hold certain provisions found therein to be in conflict with the constitution and therefore void. On the other hand, so far as the statute has been found to harmonize with the constitution, it has been sustained and enforced. Law-abiding citizens of the State, however their interests may be affected by the statute in question, can expect and desire nothing more and nothing less.

I. "We will proceed to state briefly considerations which support the conclusion reached in our former-opinion. We will, however, do little but repeat and extend the- thoughts we have before expressed, and it may be- that we will not succeed in making them plainer.

This court has uniformly held that different tracts of land cannot be sold at a tax sale and conveyed by a tax deed en masse. Boardman v. Bourne, 20 Iowa, 136; Ware v. Thompson, 29 Iowa, 67, and cases following these decisions. These rulings are based upon the consideration that such sale and deeds are in direct violation of the express language of the statute.” In the case before us we are required to - apply this .rule, and in doing so, must inquire when and’ under what circumstances laud,' consisting of a given quantity, a certain number of acres, as measured and marked out by the government surveys, is to be regarded, under the provisions of the statute, as one tract or parcel- Now let us notice briefly all .the provisions of -the statute upon this subject in order to determine what the law means when it requires, lands to be sold and deeded under tax sales in separate- parcels or tracts. We will first state the provisions of the Revision,'and afterward the subsequent amendment. See. 731. The assessor shall “ list ” each person in his township, and “ assess ” all property, personal and real. Sec. 737. When the name of the owner of real estate is unknown, it is assessed “ without con*151necting therewith any name,” but tbe words “ owners unknown” are inscribed at the head of the page. Such real estate “ shall be listed as near as practicable in the order of the numbers thereof,” and no “ one description shall comprise more than * * tbe sixteenth part of a section or otlier smaller subdivision of the land according to the government surveys.” Sec. 745. The clerk of the county transcribes into the tax hook from the assessment books tbe descriptions of property; but when the owner is unknown no one description sliall contain more than one-sixteenth of a section or other, smallest subdivision of the land according to the government surveys. Sec.. 764. Notice of the sale of lands for taxes is to he given by advertisement in a.newspaper which shall contain “a description of the several parcels of real property to be sold as tbe same are recorded on tbe tax list.” Sec. 765. The county treasurer shall offer for sale, separately, each tract or parcel of real-property advertised for sale. Sec. 771. A copy of the advertisement with a certificate and proof of its due publication is to be filed"’in the office of the clerk. Sec. 772. The clerk is required to make a record of the sale, “ describing the several parcels of real property” sold “as they are described in the list or advertisement on file in his office. The same record is made by the treasurer. Sec. 777. A certificate is delivered to the purchaser, describing tbe property bought by him “ as the same was described in tbe record of sales.” Sec. 781. At the expiration of the time for redemption the treasurer shall make out a deed “ for each lot or parcel of land sold and remaining unredeemed.” . Sec. 782. Any number of parcels of land bought by one person, may be included in one deed.'

It cannot be doubted that- under these provisions lands were to be assessed, when the owners were unknown, in forty acre tracts, were to he so entered upon the tax lists and hooks and wez-e to be advertised, sold azzd deeded by szzclz descz-iptiozzs. The language is plain azzd is to tbe effect that they shall he sold, and deeds znade aecoz’ding to the descriptions in which ■ they are advertised for sale. Not one word is said as to the quantity of land to be sold and deeded as one tract, further than *152the parcels shall correspond with the advertised list. Upon this point there is no foundation for dispute. .

But section 764, is amended by Chap. 24, Acts extra session 8th General Assembly. Section 4 of that act provides that, “ In giving notice of the sale of lands or town lots for taxes, it shall be the duty of the treasurer, in cases when the name of the owner of any delinquent lands-or town lots is unknown, to embrace the largest quantity practicable in each description of such lands.” By section 5 the words occuring in See. 764, “as the same are recorded on the tax list,” quoted above, are stricken out. No change is made as to the other provisions above cited. The amended section simply took the place of the original provision. Now it is just as plain after this amendment as it was before, that the lands are to be sold and deeded by the descriptions set out in the advertisement. We discover no grounds for a difference of opinion here. Repeating what we said in our first opinion, that a section is called in common language, as well as in the language of the courts and the government land officers, a tract or parcel, and is the unit in the division of public lands, it is beyond question that it was the intention of the legislature to so regard it in the statute under consideration. It may be lawfully advertised, sold and deeded as one section when the owner is unknown. The case before us then, is not within the rule first announced in Penn v. Clemons, supra, and followed by the decisions cited in our first opinion.

II. Counsel assert and reiterate with a great deal of boldness, that a contrary rule has been announced by this court, and that we have held a sale of lands assessed to unknown owners, in tracts greater than forty acres is in violation of the law. Corbin v. Dewolf, 25 Iowa, 127, and Bulkley v. Collation, 32 Iowa, 464, are cited to support this position. The point was in neither of these cases and the language relied upon by counsel was used arguendo. ■ In the first case Rev. § 764, is cited as it stood before the amendment above stated, and the remarks in the opinion, which are claimed by counsel to support their statement, may have had proper support considering the law as it originally stood.

*153The language of the second case doubtless originated in the same way, the attention of the court in neither case having been called to the amendment above noticed. But be this as it may, the point was decided in neither case, the court holding in each, that land of known owners, assessed in tracts greater than forty acres, may be sold by such descriptions; nothing more was decided.

It has never been held by this court that an “eighty,” “a quarter,” or a half section, or section, as these tracts are marked out upon the government surveys and are each' designated by a single description, may not be sold and deeded for taxes as a single tract or parcel. In Boardman v. Bourne, 20 Iowa, 135, of the deeds held void, two conveyed each two, and the third fourteen distinct tracts of land. In Furguson v. Heath, 21 Iowa, 438, the tax. deed was for two “forties.” Though adjacent, they were in different “quarters.” The lands in Byam v. Cook, Id. 392, were fourteen different and distinct parcels. In Harper v. Sexton, 22 Iowa, 442, many tracts of land were sold “in a lump.” In Ackley v. Sexton, 24 Iowa, 320, several distinct tracts were sold in the same way. In Ware v. Thompson, 29 Iowa, 65, lands located in different sections and townships are conveyed by the deed. In not one of these cases does it appear that the lands involved constituted one tract according to the government sub-divisions,, or could be designated by one description.

III. It is insisted with much positiveness that appellant did not-in the trial of this case rely upon the deeds conveying the different sections, the instruments which we hold to be valid, but conceded their invalidity. This assertion is readily refuted by the inspection of the argument of appellant’s counsel in which he claimed, with very great positiveness and directness, that these deeds were legal and sufficient to support defendant’s title. It is proper to say this much in answer to the bold assertion, though the matter, were it true, would have nothing to do with settling the law of the case.

No further consideration of the points ruled in our first opinion is demanded. •

*154Bkatüte:_coñstrued. *153.IV. Following prior well considered adjudications in this *154court we hold that Rev. § 784, which provides that a tax deed pdma facie evidence that the lands conveyed therein were subject to taxation, that the taxes were not paid and that the land had not been redeemed prior to the execution of the deed, and that it is conclusive evidence of the regularity and sufficiency of all proceedings upon which the sale and deed are based, is in conflict with the constitution in so far that it makes the deed conclusive evidence of matters jurisdictional and essential in their nature to the exercise of the taxing power, such as the assessment, levy, sale, &e. But as to non-essentials, or matters merely directory, we hold that the deed is conclusive evidence. As to the manner of the exercise of these jurisdictional matters which is entirely tinder the control of the legislature, we hold that the deed may well be made conclusive evidence, See McCready v. Sexton, 29 Iowa, 276; Rima v. Cowan, 31 Iowa, 125, and other cases following them. Whether land shall be sold in parcels of 40 or 640 acres and coxiveyed by the like descriptions, we hold to be a question pertaining to the .manner of the sale and conveyance which is under, the control of the legislature, and that a tax deed may be made by law conclusive evidence thereof.

6. practice : s?pesupreme court. This statute, and our interpretation thereof, counsel for appellee in their petition for a rehearing insist is in conflict ^ie 5th and 14th amendments of the Oonstitution of the United States, which protect the people of the United States from the deprivation of life, liberty, or property without due process of law, secure to all the eqxxal protection of the laws, and prohibit the abridgment of the privileges or immunities of the citizens of the Uixited States. No such point was made upon' the first argument, and in the petition for rehearing, and the subsequent argument of counsel for appellee, we are not enlightened by any discussion of the doctrines upon which it is based. The pleadings in the case do not raise the point, aixd we do not find that upon the trial in the court below it arose upon any ruling of that court. We have been unable to find a single syllable in the abstracts before us from which it may *155be inferred that the point was made in any form in the court” below. Nor is there a word in the arguments of counsel, filed before the petition for a rehearing, to that effect. If there be any thing of the kind, we have been unable to discover it.. The point was certainly not passed upon in. the court below, and is not decided by us, and could not-be, because the case is not presented in a shape to require such decision. Conceding that it is made in the petition for a rehearing, and in the- argument subsequently filed by appellees’ counsel, this is not sufficient to. authorize us to give the certificate asked for by appellees’ counsel, to the effect that the validity of the statute above cited was drawn in question in this case on the ground that it is in conflict with the Constitution of the United States. Upon such a certificate counsel propose to take the case for review to the United States Supreme -Court. There .are two objections to ordering the certificate to be spread upon our record, each of which is insuperable. First: The matter we aré asked to certify is not in accord with the facts. "We are nor permitted.to give fictions of this land a place upon the records of this court. Second: The certificate, even should it be given, would not confer jurisdiction upon the United States Supreme Court. The fact that the validity of the law of this State was called in question on account of its repugnance to the Constitution of the United States must appear upon the face of the record before the decision of this court will be reviewed by the United States Supreme Court; the mere fact • that such a point was made upon the argument by counsel, is not sufficient. The certificate of this court alone will not confer upon the United States Supreme Court jurisdiction. Parmelee v. Lawrence, 11 Wal., 36; Railroad Company v. Rock, 4 Wal., 177; Lawler et al. v. Walker et al., 14 How., 149. It will not therefore be given-.

The conclusions of our former opinion are adhered to, and the decree of the District Court is , Ee;versed.