State ex rel. Knox v. Hundhausen

Paute, J. Tbis was an application for a mandamus to compel tbe treasurer of tbe city of Milwaukee to issue a tax deed. It is not denied that tbe application is sufficient, unless tbe non-compliance with tbe requirements of chapter 113, Laws of 1867, which appears on tbe face of tbe relation, is a sufficient reason for refusing tbe writ. It is not denied that it would be a good reason, if that act is applicable to tbe certificate on which this deed is claimed. But tbe appellant’s counsel urges that it is not applicable, for two reasons. Tbe first is, that it is [510] not applicable to the issuing of deeds by city officers at all, but relates only to county officers. But the language of the act is broad and general, and includes all tax deeds, without restriction or exception. It is a remedial statute, and its policy seems wise and beneficent. The issuing of tax deeds by city officers is as much within the mischief sought to be guarded against, as is their issuing by county officers. Unless, therefore, there were some stronger reason for limiting its application to the action of county officers than is to be derived from the provision at the end of section 1, requiring the affidavit of the service of the notice to be filed with the clerk of the board of supervisors,,! should not feel warranted in attempting to establish such a limitation. But it is said further, that it is unconstitutional to apply this act to the certificate here in question, for the reason that it would impair the obligation of the contract; and this objection I am compelled to sustain. This certificate was issued in October, 1863, and the act not having been passed until April, 1867, the deed was due upon the certificate before the passage of the law. Of course, the validity of the act with respect to sales made subsequent to its passage, is not disputed. It may be, also, that it would be held valid as to sales made previous to its passage, but as to which there was a reasonable opportunity furnished to the holders of the certificates to comply with its provisions in time to obtain their deeds when they would otherwise have become due. It is unnecessary here to express any opinion upon such a case, as it is not presented. But here the deed was already due when the law was passed. It was due by the terms of the contract of sale. It seems, therefore, very obvious, that for the legislature to say that the party shall not have any deed until he.proves that he has served a notice upon the owner or occupant of the premises at least three months prior to demanding the deed, interferes [511] directly with tbe terms of the contract, and impairs its obliga* tion. This, it would seem, would scarcely be denied if it was attempted to apply such an act to mere private contracts. Suppose the legislature should say that wherever any party is now bound by contract to execute a deed of lands to another, such other shall not be entitled to such deed until three months after he has made a demand of it; or, where any money is now due by contract, the person who would otherwise be entitled to it, shall have no right to receive it until six months after a demand. It would scarcely be claimed that such laws were of any validity. Yet I can see no difference in principle between them and the present law, so far as it is sought to be applied to deeds that were already due at its passage. It cannot be said to relate to the remedy, as was urged by the respondent’s counsel. The distinction between laws impairing the obligation of the contract, and those regulating the remedies upon contracts, has always seemed very clear to my mind. I expressed my views upon that subject fully in the case of Von Baumbach v. Bade, 9 Wis. 559. But this law does not relate to the remedy at all. The appropriate remedy for a refusal to comply with the contract to issue the deed, is the writ of mandamus, which the party now seeks. If this law had pi’ovided for a longer time for the return of the writ, or in any other way had rendered the proceeding more dilatory than it was at the time of this tax sale, I should have no doubt of its validity. It would then relate to the remedy merely, leaving the right of the party under his contract untouched. But instead of that, the remedy has not been changed at all. The act aims directly at the right itself. The right existed by the contract, but by the act it was destroyed, and could not be acquired again until the expiration of at least three months. Until the expiration of that time, he would be in no condition to set any remedy in motion at all. And during all that time the right of redemption is ex [512] tended beyond any power of tbe bolder of tbe certificate to defeat by obtaining bis deed and getting it recorded, as be could have done if bis rights under tbe contract were not interfered with. This brings tbe case fully witbin tbe decision of this court in Robinson v. Howe, 13 Wis. 341. It seems to me very clear, therefore, that this act, so far as this certificate is concerned, is obnoxious to tbe objection urged, and that tbe relator was entitled to bis deed. By the Court. — Tbe order appealed from is reversed,' with costs, and tbe cause remanded for further proceedings.