State Ex Rel. Hodge v. Grace

*21 FOURNET, Justice. This is an action by the heirs and legatees of the late John Ledyard Hodge, whose property was adjudicated to the State on November 7, 1891 for the unpaid taxes due the State and Parish for the years 1880 to 1890, inclusive, to compel the Register of the State Land Office, by writ of mandamus, to advise them of the amount of taxes for which their ancestor’s property was adjudicated to the State and the amount which is necessary for them to contract to pay to redeem the same under the provisions of Act No. 161 of 1934, as amended by Act No. 14 of the Fourth Extra Session of 1935, and to execute and deliver in accordance with said Act the certificate therein provided for; and in the alternative, that the Register of the State Land Office execute and deliver to them a certificate of redemption under the provisions of Section 62 of Act No. 170 of 1898, as amended by Section 6 of Act No. 315 of 1910, amended by Section 1 of Act No. 41 of 1912, and amended by Section 1 of Act No. 72 of 1928. By supplemental and amended petition, the Board of Commissioners of the Pontchartrain Levee District and the State Treasurer were also made parties to the proceeding. The Register of the State Land Office filed exceptions of misjoinder of parties defendant and of no cause or right of action, and, with reservation of her rights thereunder, filed an answer denying that relators are entitled to the relief prayed for. The Board of Commissioners of the Pontchartrain Levee District filed at the same time, but in the following order, exceptions (1) to the jurisdiction of the court ratione personae; (2) misjoinder of parties defendant; (3) no cause or right of action; and (4) prematurity, and with reservations of their rights thereunder, filed an answer. The State Treasurer answered on the merits. The trial judge deferred ruling on the exception to the jurisdiction of the court ratione personae filed by the Pontchartrain Levee District and referred all other exceptions to the merits. After hearing the evidence offered by the relators, none having been offered by the respondents, the trial judge maintained the plea to the jurisdiction filed by the Pontchartrain Levee District and the exceptions of misjoinder and no cause or right of action filed by the Register of the State Land Office, and dismissed relators’ demands against all parties at their costs. From that judgment relators prosecute this appeal. The record shows that the relators are the sole and only heirs at law of John Ledyard Hodge, who was the owner of an undivided two-thirds in and to Squares Nos. 14, 17, 22, 24, 26, 95, 97, 98, 99, 100, 101, 102 in the Town of Shrewsbury, Parish of Jefferson, which property was adjudicated to the State of Louisiana on November 7, 1891, for the unpaid taxes of 1880 to 1890, inclusive. Subsequently, on May 27, 1902, the property was transferred by the State to the Board of Commissioners of the Pontchartrain Levee District under the provisions of Act No. 95 of 1890, as amended by Act No. 96 of 1894, *23 in whom the title was vested at the date this suit was filed. The trial judge favored us with a well-considered written opinion, in which he gave a thorough and able analysis of the statutes involved, as well as the pertinent authorities, and, in our opinion', correctly disposed of the case. We, therefore, quote with approval, from his opinion the following : “Relators having alleged that they are entitled to redeem their lands under Act No. 161 of 1934, as amended, and having further alleged that the Register of the State Land Office is neglecting her duties, and h£¡.s failed to issue, execute and deliver the certificates of redemption, as provided for in said Act, and the attorney for the Register of the State Land Office contending that this act releases the Register of the Land Office from all duty, ministerial or otherwise, and having filed an exception of misjoinder, this exception will now be considered in so far as it applies to the demands of relators, and the duties of the Register of the Land Office under this particular act. • “The Act, as amended, which relators are seeking to invoke reads as follows: “ ‘Section 1. Be it enacted by the Legislature of Louisiana, That from the date this Act takes effect, and up to twelve o’clock noon of the twentieth day after the regular session of the Legislature of 1936 shall have adjourned, if the owner or any person interested personally or as heir, legatee, creditor or otherwise, except a judgment creditor of the owner, in any lots or lands bid in for and adjudicated to the State, or any of its political subdivisions, as long as the title thereto is in the State, or in any of its political subdivisions, or if not heretofore contracted to be sold by the State or such subdivisions, shall contract to pay to the Treasurer of the State, or the proper authority of such political subdivision, in the manner hereinafter provided, the amount of the actual taxes for which said lots or lands were adjudicated to the State, or to any of its political subdivisions, the Register of the State Land Office, or the governing authority of such political subdivision, shall execute and deliver to such person a certificate of the same in the following manner, which certificate shall be held and taken as evidence of the redemption of such lot or lands in the name of the person who was assessed with the same at the time of adjudication.’ “Counsel for relators in his. brief further urges that the exception of misjoinder should be overruled for the reasons that the test to be applied in considering such exceptions is whether the parties plaintiff or parties defendant have a common interest in the subject-matter of the suit; and further that the matter is largely within the discretion of the trial judge, citing the following cases: Reardon v. Dickinson, 156 La. 556, 100 So. 715; Gill v. City of Lake Charles, 119 La. 17, 43 So. 897. “Counsel for the Register of the State Land Office in support of his exception of misjoinder touching the rights of relators under said Act No. 161 of 1934, as amend *25 ed, urges and maintains that under the allegations of relators’ original and amended petitions, both as to facts and the law relied upon, the Register of the State Land Office is not shown to have any ministerial duty to perform. “Counsel for relators is correct in his exposition of the law governing exceptions of misjoinder, but at the same time the allegations of facts and the law relied upon should disclose, as between defendants, a common interest in the subject-matter of the suit. “The pertinent portion of Section 1 of Act No. 161 of 1934, as amended, simply provides: “ ‘If the owner or any person interested personally or as heir, legatee, creditor or otherwise, except a judgment creditor of the owner, in any lots or lands bid in for and adjudicated to the State, or any of its political subdivisions, as long as the title thereto is in the State, or in any of its political subdivisions, or if not heretofore contracted to be sold by the State or such subdivisions, shall contract to pay to the Treasurer of the State, or the proper authority of such political subdivision, in the manner hereinafter provided, the amount of the actual taxes for which said lots or lands were adjudicated to the State, or to any of its political subdivisions, the Register of the State Land Office, or the governing authority of such political subdivision, shall execute and deliver to such person a certificate of same in the following manner.’ (Italics by the Court.) “The Court construes this act to mean that if lands are adjudicated to the State for unpaid taxes, and as long as the title is in the state, or the state has not contracted to sell the lots or lands, any person designated therein can, if his application be timely, redeem said land from the state upon the terms and conditions therein provided, and the Register of the State Land Office shall execute and deliver to such persons the certificate of redemption. “On the other hand, if lands are adjudicated to a political subdivision of the state for unpaid taxes, and as long as the title is in this political subdivision, or the subdivision has not contracted to sell said lots or land, any person designated in the act can, if his application be timely, redeem said lands from the political subdivision by entering into a contratt with- the proper authority of such political subdivision to pay the actual taxes for which said lands were adjudicated to the said political subdivision, upon which it becomes the duty of the proper authority of such political subdivision to execute and deliver to such person certificates of redemption. In other words, if the property has been adjudicated to the state, and the transaction is with the state, and all the requisites and formalities have been complied with, it is the duty of the Register of the State Land Office, acting as the agent of the state, to execute and deliver the certificates of redemption. But if the lands -have been adjudicated to a political subdivision and the transaction is with the political subdivision, and all the requisites and .formali *27 ties of the act have been met and complied with, it is then the duty of-the proper authority of the political subdivision to execute and deliver the certificate of redemption. “It is clearly apparent that when the act refers to title being in the state or any of its political subdivisions, it simply means the state or the political subdivision to which lands have been adjudicated for non-payment of taxes. It has not been alleged that the Pontchartrain Levee District is a political subdivision to which these lands have been adjudicated for the nonpayment of taxes, in fact the contrary is alleged in the petition. “The Court-is of the opinion that the Register of the State Land Office has no duty to discharge, ministerial or otherwise, under the provisions of Act No. 161 of 1934, as amended. Additional reasons will be given in a further consideration of this exception insofar as it applies to the alternative demands, that is, the redemption of the lands under Section 62 of Act No. 170 of 1898, as variously amended. “Relators in the very first articles of their petition allege that the land in question was adjudicated to the State for unpaid taxes from 1880 through 1890, which sale and adjudication is duly registered in the office of the Clerk of Court of Jefferson Parish. “They also allege that the land in question was transferred by the said State of Louisiana to the Pontchartrain Levee District, which sale is registered in C. O. B. 21, folio 747 and 749 in the office of the Clerk of Court for the Parish of Jefferson. “The Pontchartrain Levee District was created by Act No. 95 of 1890, as amended by Act No. 96 of 1894, Section 12 being the pertinent part, reading as follows: “ ‘Be it enacted by the General Assembly of the State of Louisiana, That Section 12 of Act No. 95, approved July 8th, 1890, be amended and reenacted so as to read as follows : “ ‘That in order to provide additional means to carry out the purposes of this Act, and to furnish other resources to enable said Board to establish and complete a 'thorough system of levees, and to protect the lands of the Pontchartrain Levee District from floods from the Mississippi River, all lands belonging to the State of Louisiana embraced in the original grants by Congress to the State for levee and drainage purposes that are located in the Parishes or parts of Parishes comprising the Pontchartrain Levee District and subject to overflow be, and the same are hereby donated and transferred to said Board of Commissioners: Provided this shall in no wise interfere with the rights or claims of actual settlers and that all lands occupied, improved or cultivated by such actual settlers shall be reserved by the state and shall be subject to entry only by actual settlers under provisions of Act No. 21 of 1886, and said claims shall be adjudicated by the Register of the State Land Office in pursuance of rules and regulations established by said Act No. 21 of 1886 and no entry shall be allowed by him unless more than one half of the land claimed by any *29 settler shall be suitable for cultivation. And also that all lands forfeited or sold to the State for non-payment of taxes situated in said district and liable to overflow be, and the same are hereby donated and transferred to said Board of Commissioners where the period for redemption has expired and as soon as the period shall hereafter expire. A list of said lands in the respective parishes or parts of parishes in said district shall be made out by the Auditor and certified to, and shall be furnished to the President of said Board, and when said list shall have been recorded in the Recorder’s office of the respective Parishes the title of the State shall be absolutely vested in said Board of Commissioners of the Pontchartrain Levee District. That said lands shall be exempted from taxation during the time they shall remain in the possession of said Board. That said Board shall have authority to mortgage and sell such lands or otherwise dispose of them in such manner as it may [deem] proper, in order to raise funds to locate, construct, maintain and repair the levees and reclaim said lands from overflow. And when they shall sell said lands, either at public auction, or private sale, the proceeds thereof shall be deposited with the State Treasurer to the credit of the Pontchartrain Levee District, and shall be drawn out only upon the warrants of the President of said board for the purposes provided for in this act.’ “The lots of lands which relators are seeking to redeem were, by the very terms and provisions of the Act donated and transferred to the Levee District, and further the State of Louisiana, in obedience to and in compliance with the mandatory provisions of said Act, executed an additional written sale or conveyance by which the identical lands were transferred and made over to the Levee District, this instrument of conveyance being duly recorded in the office of the Clerk and Recorder of the Parish of Jefferson, thereby vesting the title to said lands absolutely in the Pontchartrain Levee District. “Section 62 of Act No. 170 of 1898, as variously amended, relied upon by relators in their alternative demand, reads as follows : “ ‘Sec. 62. Be it further enacted, etc., That if the owner, or any person, interested personally, or as heir, legatee, creditor, or otherwise, in any lot or lands bid in for and adjudicated to the State within twelve months from the day the act or deed is filed for record in the conveyance office, pay to the Treasurer of the State, the taxes, interests and costs, and twenty per cent thereon; the auditor, upon production of the treasurer’s receipt, shall execute and deliver to such person certificate of redemption of the same under the seal of his office, which shall be held and taken as evidence of the redemption of such land and lands with the name of the person redeeming the same, and the amount paid shall be entered on his records of the lands across the entry of the same; provided, no certificate of redemption shall be issued by the auditor until all taxes, State, parochial and district due up to the day of redemption have been paid on said property.’ “This section was amended by Act No. 315 of 1910, but only to the extent of desig *31 nating the Register of the State Land Office instead of the Auditor as the official to make, execute, and deliver the certificate of redemption. “Section 62 was also amended by Act No. 41 of 1912 by striking out the words ‘within twelve months from-the day the' * * * deed is filed for record in the conveyance office’ and inserting the words ‘as long as the title thereto is in the State.’ “Section 62 was further amended by Act No. 72 of 1928, which is quoted in full: “‘AN ACT' “ ‘To amend and re-enact Act No. 41 of 1912 entitled “An Act to amend and reenact Section 6 of Act No. 315 of 1910 entitled ‘An Act to amend and re-enact Sections (53), fifty three, (58) fifty eight, (59) fifty nine, (60) sixty, (61) sixty one, (62) sixty two, (68) sixty eight, and (69) sixty-nine, of Act 170 one hundred and seventy of the Session 1898, entitled “An Act to provide an annual revenue for the State of Louisiana by levying o"f annual taxes upon all property not exempted from taxation and prescribing the method of assessing and collecting the same, and of enforcing the payment thereof in the several parishes of the State, and setting forth the purposes for which said levy is made,” and to repeal all laws or parts of laws in conflict or inconsistent with this Act.’ ” “ ‘Section 1. Be it enacted by the Legislature of Louisiana, That Act No. 41 of 1912, be amended and re-enacted so as to read as follows: “ ‘ “Section 1. Be it enacted by the General Assembly of the State of Louisiana, That Section 6 of Act No. 315 of the General Assembly of 1910 be amended and reenacted so as to read as follows: “ ‘ “Be it further enacted that Section (62) sixty-two of Act 170 of 1898 be amended and re-enacted so as to read as follows, to-wit: “ ‘ “Section 62. Be- it further enacted, etc., That if the owner or any person interested personally of as heir, legatee, creditor or otherwise, in any lots or lands bid in for and adjudicated to the State, as long as the title thereto is in the State or in any of its political subdivisions, or if not heretofore contracted to be sold by such sub-divisions, shall pay to the Treasurer of the State, the taxes, interests and costs and twenty (20) per cent, thereon, the Register of the State Land Office, upon production of the Treasurer’s receipt, shall execute and deliver to such persons a certificate of the same under the seal of his office, which; when duly recorded in the Conveyance Office of the Parish wherein said property is situated, shall be held and taken as evidence o.f the redemption of such land or lands with the name of the person redeeming the same. The amount paid shall be entered upon the records of lands by said Register and he shall immediately and in writing notify the Assessor of the Parish wherein said redeemed lot or lands are situated of said redemption, provided, no certificate of redemption shall be issued until all taxes, State, Parochial, district and municipal, due up to the day of redemption, have been paid on said property. But all certificates issued under this section shall be in the name of the original owner to enure to the *33 benefit of all persons holding rights under said owner.” “ ‘Section 2. Be it further, etc., That all laws or parts of laws in conflict with or inconsistent with this act be and are hereby repealed.’ “As pointed out by counsel for exceptor, Act No. 170 of 1898, as amended, is the general revenue law of the State, under which taxes are collected and property sold for the non-payment of taxes. This statute is a general law. On the other hand, Act No. 95 of 1890, the act which created the Pontchartrain Levee District, is a special statute. In- order for relators to be entitled to relief under Act No. 170 of. 1898, as amended, this Court would have to hold that Section 62 of Act No. 170 of 1898, as amended by Act No. 72 of 1928, repealed by implication the provisions of Section 12 of Act No. 95 of 1890, as amended, which is a special statute. “The question then to be decided, stated tersely, is whether Act No. 161 of 1934, as amended, and Section 62 of Act No. 170 of 1898, as finally amended by Act No. 72 of 1928, revoked the donation made to the Board of Commissioners of the Pontchartrain Levee District by the creative statute Act No. 95 of 1890 and the sale or conveyance of the lands in question made by the State to the Levee District on or about May 27, 1902, and of record in the office of the Clerk of Court for the Parish of Jefferson. “A careful reading of the various acts quoted and relied upon by relators discloses that they' terminate with the general repealing clause ‘That all .laws or parts of laws in conflict with or inconsistent with this act be and are hereby repealed.’ “If the Legislature had intended by the various acts quoted and relied upon by relators to revoke and set aside the donations made of the lands by the Act creating the Levee District and the sale of the lands by the State to the Levee District, is it not likely and probable that the repeal or revocation would, in one of the various acts at least, been in clear, direct, and unmistakable terms, instead of left to inference, conjecture and implication? “Repeals by implication are not favored. N. O. Motor Co. v. Kelt, 3 La.App. 336; Wachsen v. Commission Council, 162 La. 823, 111 So. 177. Repeals by implication are not favored; and, if it is possible to reconcile statutes by any fair and reasonable construction, courts will do so. Bennett-Brewer Hdw. Co., Inc., v. Wakeman, 160 La. 407, 107 So. 286. “Repeals by implication will not be presumed, and two statutes must be so inconsistent that they can not exist, and, whenever possible, they should be so construed as to harmonize and not to clash with one another. Thibodaux Boiler Works v. Peoples Sugar Co., Inc., 11 La.App. 377, 122 So. 290. “If the provisions of Section 62 of Act No. 170 of 1898, as finally amended by Act No. 72 of 1928, were construed so as to operate as a repeal of the provisions of Section 12 of Act No. 95 of 1890, as amended, and to revoke the grants made under the latter statute, then Act No. 72 of *35 1928 would be broader than its title, and, therefore, unconstitutional. “The Court is of the opinion that when in the year of 1902 the State, in compliance with the provisions of Act No. 95 of 1890, sold and transferred to the Pontchartrain Levee District the lands in question, and the sale was duly recorded in the office of the Clerk of Court of the Parish of Jefferson, the title to these lands was vested absolutely in the Levee District and that the sale or conveyance could only be revoked'or set aside by subsequent acts or legislation clear and unequivocal in its terms. “The Court is also of the opinion that the acts quoted and relied upon by relators, under which they seek to redeem said lands, did not revoke or set aside the donations, sale or conveyance made to the Pontchartrain Levee District under the provisions of the creative Act No. 90 of 1890, as amended, and that the title to the lands in question is still in said levee District. To decide otherwise would be to hold that a general statute repeals a special statute by implication. “The facts set forth and the law relied upon by the relators disclose that the Levee District has not been divested of its title to the lots or land, and as a natural result thereof the Register of the State Land Office is not a party in interest and has no duties to perform. The exception of misjoinder as it applies to the demands of relators under the terms of Act No. 161 of 1934, as amended, and the duties of the Register,of the,Land Office thereunder also as it applies to the alternative demands of relators is sustained. “The Supreme Court of this State has ruled in State ex rel. Atchafalaya Basin Levee Board v. Capdevielle, Auditor et al., 142 La. 111, 76 So. 327, and in Atchafalaya Land Co. v. Grace, Register et al., 143 La. 637, 79 So. 173, and in State ex rel. Board of Commissioners of Caddo Levee District et al. v. Grace, Register et al., 145 La. 962, 83 So. 206, that the lands which had been granted to the several Levee Districts, though not yet conveyed to the Levee Boards by instruments of conveyance signed by the Register of the ’Land Office and the State Auditor, were not to be regarded as ‘lands belonging to the State of Louisiana,’ and that such lands were not subject to entry or purchase at the State Land Office, because they had been withdrawn from the general land laws of the state. “In the cases above cited it will be noted that while the lands had been donated or granted to the various Levee Districts by the several acts creating the said Levee Districts, the* grant or donation had not been confirmed or completed, for the reason that the Auditor and the Register of the State Land Office had failed and neglected to convey and transfer the lands. to the Levee Districts by a written instrument to be duly recorded in the' office of the Clerk of Court in the parish in which the land was situated. Yet, even under these conditions and facts, the Supreme Court held that the lands in question had been withdrawn and were not subject to the general land laws of the state. *37 “The facts are quite different in the case at bar. The lands involved in this suit were adjudicated to the state for unpaid taxes in the month of November, 1891, or forty-five years ago. The same lands were then granted or donated to the Pontchartrain Levee District by Act No. 95 of 1890, as amended by Act No. 96 of 1894, which, if we accept the rulings of the Supreme Court in the cases cited above, withdrew and set them aside from the general land laws of the state. But an additional step was taken. On May 27, 1902, the lands in question were transferred by a written instrument by the state to the Levee District and this sale or conveyance is of record in the office of the Clerk and Recorder in the Parish of Jefferson. This additional step vested title absolutely in the Levee District, and the general land laws were and are no longer applicable, until the legislature, by a statute, clear and unmistakable in its terms, free from and devoid of implication, divests the Board of Commissioners for the Pontchartrain Levee District, of the absolute title now vested in it. “A careful analysis of Act No. 72 of 1928, finally amending Section 62 of Act No. 170 of 1898, convinces the Court that its effect, if any it has, is to grant the right of redemption in such cases where the title of the State, though the property may have been transferred to a subdivision, has not been absolutely vested in the subdivision. “All of the allegations of fact in relators’ petition, and the law quoted by them as being applicable to the facts in the case, carefully considered, the Court is of the further opinion that the exception of no right or cause of action filed by the Register of the State Land Office should be also sustained. “The Treasurer of the State filed an answer and in so far as he is concerned, the case will be considered on the merits. The facts and evidence presented and adduced by relators fail to present a case as against this official. “The exception of no right or cause of action filed by the Register of the Land Office' to the original and supplemental and amended petition, being sustained, dismisses the Board of Commissioners for the Pontchartrain Levee District from the case as the demands against them were only incidental to the demands against the Register.” For the reasons assigned, the judgment of the lower court is affirmed at appellants’ cost. O’NIELL, C. J., and LAND and ODOM, JJ., dissent.