Casner v. Meriwether

ANDREWS, J. This action was commenced on January 20, 1926, in the district court of Wagoner county, Okla., by the defendant in error, hereinafter referred to as plaintiff, against the plaintiffs in error, hereinafter referred to as defendants. The purpose thereof was to foreclose tax liens on various tracts of land in Wagoner county, under and by virtue of the provisions of chapter 12, Session Laws of 1925, hereinafter referred to as “the act.” The cause was tried to the court, and judgment was rendered for the plaintiff, from which an appeal was taken to this court. The act was repealed by Senate Bill No. 146 (chapter 37) of the Session Laws of 1927, after the commencement of this action and prior to judgment herein. The defendants assert that it was unconstitutional and void. In the case of Langley v. Cox, 135 Okla. 291, 275 Pac. 638, this court had under consideration a judgment of a trial court sustaining a demurrer to a petition filed pursuant to the provisions of the 1925 act. The only contention therein discussed was that the title to the act limited the right of action to • certain classes of tax certificates or deeds, whereas the body of the act included the right of action on all tax deeds and certificates. This court therein held: “Where the title to an act of the Legislature restricts the operation thereof to a certain class and the body of the act includes all classes, the act thereof will be upheld to the extent of restricting the same to the class named in the title” —and reversed the judgment of the trial court, with directions to overrule the general demurrer to the petition that had been sustained by the trial court. The decision in that case in no wise can be considered as a construction of the constitutionality of the 1925 act. The record shows that the trial court rendered a judgment in favor of the plaintiff, not only for the amount of the taxes paid by the plaintiff, the accrued penalties, and the accrued costs, but for an' attorney’s fee of $75 on each of the causes of action here complained of, “that ■ the plaintiff do have by virtue of said tax sale certificate a lien paramount. and superior to any lien, interest, or title of the defendants herein for payment *247 of said sums upon the lands and real estate described, * * *” and directing a sale of the land at public auction to the highest bidder for cash, without appraisement, in satisfaction of the lien. The order of the trial court fixing an attorney’s fee of $75 on each cause of action and decreeing the same to be' a lien upon the land operated to burden the land of the defendants in addition to the burdens that might have been imposed thereon prior to the taking effect of the 1925 act. The title to the act is as follows: “An act providing for the enforcement of tax liens on lands and town lots, by foreclosure proceedings, where the tax sale certificates, tax deeds, or any of the proceedings relating thereto are void, voidable, or defective, and for a disposition of the proceeds of sales thereunder, and for the redemption of such lands and town lots.” The title to the act does not clearly express an intent to give the same a retroactive effect. The body of the act states that it shall apply to tax sale certificates “heretofore or hereafter issued.” The requirement of section 57, art. 5, of the Constitution of Oklahoma, is that every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title. One of the primary objects of the section is that the title of an act shall bear clear notice, not only to the legislative body, but to the electorate of the state, of what the act may contain. State ex rel. Short v. Johnson, 90 Okla. 21, 215 Pac. 945. An examination of the title discloses nothing that can be construed to inform either the members of the Legislature or the electorate of the state that there was any intent to provide for the imposition of burdeos and to grant rights retroactively. Eor that reason, the entire act is in violation of the constitutional provision. There is no provision in the act which, in terms, imposed a lien upon the land for attorney fees. If any such lien was therein provided for, it was by inference. The only provision in the act as to attorney fees was with reference to the application of the proceeds arising from the sale of the land. The court clerk was therein authorized to apply the proceeds arising from a sale of land 1o the payment of all costs of the action and sale, including an attorney’s fee to the lien-holder’s attorney to be allowed by the court. The taxes involved in the action accrued and the tax sale certificates were issued long prior to the adoption of the 1925 act. If the act was retroactive in effect, so as to afford the plaintiff a right not theretofore existing or to impose a burden upon the land not theretofore authorized, the provisions therefor were not valid. Section 15, art. 2, of the Constitution. Anderson v. Ritterbusch, Co. Treas., 22 Okla. 761, 98 Pac. 1002. If the act authorized the imposition of a lien upon the land for an attorney’s fee, it was in direct conflict with that' constitutional inhibition. If the act did not violate that provision, then the order of the district court providing for a lien for attorney’s fees was without authority and void. The plaintiff contends that no new right was granted and that no new obligation was imposed by the act. In his brief, he says, “Our answer to the brief of plaintiffs in error is: Chapter 12, S. L. 1925, is remedial only, and creates no new rights.” In the language of the plaintiff in his brief: “Under our statutes in force prior to the enactment of this foreclosure act, the holder of a certificate had a lien on the property covered thereby. This act only gives a new method of enforcing that right, a method which has been adopted in many states.” That contention is in conflict with the further contention of the plaintiff that he was entitled to recover an attorney’s fee, and to have the same -fixed as a lien upon the land. If, under the provisions of the act, he was entitled to have an attorney’s fee fixed as a lien upon the land, his contention fails, for that gave him a right that he did not theretofore have, to wit, to recover for his attorney’s fee, and imposed an obligation on the land of the defendants not theretofore existing, to wit, the subjecting of the land to the payment of the attorney’s fee. Prior to the adoption of the act, the procedure authorized the service of a notice of intention to apply for a tax deed and for the issuance of a tax deed upon application after notice. There was no provision for the payment of an attorney’s fee. While doubtless it would have -been advisable for the holder of a tax sale certificate to have an attorney prepare the necessary papers and supervise the proceedings incident to the issuance of a tax deed, no provision for compensation of an attorney at the expense of the land had been made. The act either provided for the imposition of an attorney’s fee and the fixing of a lien upon the land therefor, or it did not. If it did, that provision of the act was void for the reason that no intent therefor was included within the title to the act. Section 57, art. 2, of the Constitution. If it did not, then the judgment of the trial court is void as an excess of of authority. The plaintiff contends that the 1925 act was a procedural act, and that, under the decisions of this court, no person has a vested right in a particular mode of procedure. *248 This court has uniformly held to that effect, and under those decisions the procedure for obtaining a tax deed may be changed by the Legislature. However, in our opinion, the act in question was not limited to procedure. It granted rights and imposed obligations not theretofore existing. It was a substantive as well as a procedural statute. Among the substantive features thereof, we call attention to the following: The holder of a tax sale certificate was therein given a lien “for the value of all improvements placed thereon by such lien-holder and those under whom he holds or claims.” Under the statutes existing prior to that time, the holder of a tax sale certificate was not entitled to possession of the real estate described therein prior to the issuance of a tax deed (Eager v. Pugh, 123 Okla. 207, 253 P. 41; Honeyman v. Andrew, 124 Okla. 18, 253 P. 489); and he was not entitled to recover the value of improvements placed on the land by him prior to the issuance of a tax deed. Uhl v. Grissom, 12 Okla. 322, 72 P. 372. Under the act the lien of the holder of a tax sale certificate was declared to be “superior to any other lien, except that of the s'ate and junior tax sales.” Under the statutes theretofore existing, the lien of ■ the holder of a lax sale certificate was not superior to a lien for special improvement purposes evidenced by sewer warrants, paving bonds, etc. Section 4609, O. O. S. 1921. The act in question clearly imp'aired the obligation of contract as to the holders of special improvement liens, and afforded them no remedy, for it provides that only persons “having an interest in said land, as shown by the records in the offices of the county clerk and court clerk of said county,” should be made parties defendant. Nelson v. Pitts, Co. Treas., 126 Okla. 191, 259 Pac. 533; Pitts, Co. Treas., v. Allen, 138 Okla. 295, 281 Pac. 126. Under the statutes as they existed prior to the adoption of the act, the lien of a tax sale certificate holder was subject to the right of infants, idiots, and 'insane persons to redeem any land belonging to them and sold for taxes within one year after the expiration of such disability. Section 9747, C. O. S. 1921. Denney v. Akers, 117 Okla. 274, 247 Pac. 34. The act made no such exception and limited the right of minors, idiots, or insane persons to the recovery of the balance of the proceeds arising from the sale of the land after the payment of costs, attorney’s fees, and all sums due the lien-holder, including the value of improvements placed on the land by the lienholder. Under the law existing prior to the adoption of the act, the holder of a tax sale certificate was not entitled to possession of the real estate, and the holder of a tax deed could obtain possession of the real estate adversely held only by an action brought within one year after the recording of .the tax deed. Section 9753, C. O. S. 1921. The act provided that, upon request of the purchaser at the sale pursuant to the foreclosure, “a writ of assistance shall issue to place said purchaser in possession of said land.” Laws 1925, c. 12, sec. 2. Under the law theretofore existing, before the holder of a tax deed could recover possession from the owner in possession, he was required to establish the validity of his tax deed. Under the act he was permitted to acquire possession after purchase at foreclosure sale through a writ of assistance, though his petition alleged that his deed was void, voidable, or defective. He was thereby granted the right to acquire title to real estate by virtue of a tax deed which he alleged to be void. Under the procedure existing prior to the adoption of the act, redemption from a tax sale may be made, though a tax deed has been issued, if the tax deed is void, by paying to the county treasurer the amount of taxes, penalty, and costs. Gulager v. Coon, 93 Okla. 62, 218 Pac. 701. Under the act, though the tax deed be void, redemption could be had only by payment to the court clerk “for the use of the lienholder.” Thereunder, though the tax deed be void, and though the holder of the tax deed had paid only a small amount therefor, the owner of the land was required to pay the full amount of the taxes, penalty, and costs, though in an amount far in excess of that paid for the tax deed, “for the use of the lienholder.” Under the act the purchaser of a tax deed from the board of county commissioners, after a resale, might have maintained a suit for the foreclosure of a lien upon the land, and might have recovered the entire amount of taxes, penalty, and costs, with an attorney’s fee, an amount far in excess of that to which he would have been entitled prior to the adoption of the act. The act, by its terms, was for the express purpose of enforcing liens where the deed was “void.” It certainly cannot be said that the act did not grant additional rights and impose additional burdens. The right of redemption at any time prior to the issuance of a tax deed, theretofore existing, was destroyed by the provisions of the act limiting the right of redemption to any time before the confirmation of the sale by the court. Those, and other provisions, granted to *249 the holders of tax sale certificates rights that they did not theretofore have, and imposed burdens on the lands that did not theretofore exist. They were not procedural, but substantive provisions. The title to the act in no wise disclosed a legislative intent to impose any of those burdens upon the land or to grant any of the rights hereinabove referred to. It was in violation of the provisions of section 57, art. 5, of the Constitution for that reason. The act was not only void by reason of the failure therein to clearly express the purpose of the act in the title thereof, but it was in violation of that oilier provision of section 57, art. 5, supra, that “no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only.” The act provided that “all the proceedings in such action, so far as applicable and not inconsistent with the provisions of this act, shall be the same as now provided by law, for the foreclosure of mortgages on real estate and sales thereunder.'’ That was manifestly an attempt to extend the provisions of law for foreclosure of mortgages on real estate and sales thereunder to the foreclosure of the lien of the holder oí a tax sale certificate. It was manifestly an attempt to confer upon the holder of a tax sale certificate the right provided by law for the foreclosure of mortgages on real estate and sales thereunder. The extending and conferring was by reference to the title only, and was without setting forth the procedure therefor. In our opinion that was a violation of the constitutional limitation. There are other defects in the act which we do not think necessary to discuss. We therefore hold that chapter 12, Session Laws of 1925, was unconstitutional and void. The judgment rendered in this cause pursuant to the provisions of that act is vacated, set aside, and held for naught, and the cause is remanded to the trial court, with directions to dismiss this action. LESTER, O. J., CLARK, Y. C. X, and HEENER, CULLISON, SWINDALL, and MeNEILL, JX, concur. RILEY, X, absent. KORNEGAY, X, dissents.