Hawes v. Fliegler

LOVELY, J: Action to recover a city lot in St. Paul claimed upon two tax-sale judgments for local improvements which were assigned to plaintiff, who brings ejectment for the property. Possession by defendant is admitted, and plaintiff’s ownership denied. • The cause was tried to the court, who found for defendant. Judgment was duly entered. Plaintiff appeals. Defendant’s title is herein attacked upon certificates issued for assessments by the city for street sprinkling held to be authorized as local improvements in State v. Reis, 38 Minn. 371, 38 N. W. 97. Several important contentions have been urged for defendant on this review, but, having reached the conclusion that the sale by the city treasurer was void for failure to give the requisite notice provided by law, it is not necessary to go further than this preliminary inquiry, or to reconsider the questions involved in State v. Reis, supra, as we have been urged to do by respondent’s counsel, since it must be held that the proceeding for the assessment of benefits against the lot in question was invalid, if Sp. Laws 1887, c. 7, § 36 (a part of the city charter of St. Paul), has not been changed otherwise than by Sp. Laws 1891, c. 12, § 5, which provides that “the city treasurer shall [in such case] previously give at least ten days’ notice by two publications in the official paper of said city of his intended application for judgment,” for in each instance but one publication was made. It is claimed, however, in behalf of plaintiff, that the requirement for two publications before judgment was changed by Sp. Laws 1891, c. 7, § 7, which provides, in terms, “That all notices required by the charter of the city of St. Paul to be given in the official paper of said city by the board, of public works, or city treasurer, relating to assessments, shall be published but one time, except notices for the reception of bids for making of local improvements,” etc. [322] This is one of several sections of an entire chapter amending the' St. Paul charter, which we find, upon consulting the legislative journals, passed both houses and received final approval in the senate on April 16,1891. On the" second day following the passage of the section last quoted, Sp. Laws 1887, c. 7, § 36, requiring two published notices, was re-enacted, with the following proviso added: “Such personal notice [of application for judgment] may be made by depositing in the St. Paul postoffice a postal card, addressed to the property owners to be assessed, or their agents resident in St. Paul, upon which card shall be printed or written such notice of application for judgment, but the failure to give such notice shall in no wise affect the validity of the judgment applied for or any of the proceedings.” Sp. Laws 1891, c. 12, § 5. Both laws were approved by the. governor on April 20, following, and it is insisted for plaintiff that there is such a repugnancy in respect to the number of publications to be made by the city treasurer on application for judgment in the act of 1887, and the act of April 16, 1891, as to* modify and change the requirement for publication from two to one, and that the re-enactment two days later, on April 18, of Sp. Laws 1887, c. 7, § 36, with the proviso for giving further information by postal card, related merely to the specific' change in the proviso, and did not affect Sp. Laws 1891, c. 7, § 7, under the canon of interpretation that “a later law which is merely a re-enactment of a former, does not repeal an intermediate act which has qualified or limited the first one.” Powell v. King, 78 Minn. 83, 80 N. W. 850. In other words, under this claim the law of April 16, 1891, which provides that but one notice shall be given when required either by the board of public works or city treasurer, is repugnant to the previous requirement’ for two notices as well as its subsequent re-enactment April 18, 1891, since in all other respects than the proviso it is the same as the 1887 law; hence the repugnancy continues, and the law of April 16, 1891, governs, -notwithstanding there are two conflicting provisions in respect to the number of published notices required, passed within two days of each other, and to be found in close proximity in the published laws of the same session. [323] Assuming that the canon of construction we haye quoted from Powell v. King, supra, is to be pursued to its logical result, without regard to other considerations, such a deduction would be accurate; but nevertheless it would also strike an ordinary observer of our occasional hasty legislation that its application might be extremely dangerous, and liable to startling consequences, as witness the result here. An act providing for a meager notice of application for judgment to take land forfeited for street sprinkling, based on two publications, is amended by a general provision which reduces the number to only one; the original act is reenacted, with a proviso, but, so far as it retains the more liberal provision for giving notice, is void; while the change of one word, increasing the number of publications, in the re-enacted statute, would have made that so repugnant in its body to the intermediate act that it would modify it in this regard. Both acts, however, remain as they are on the statute books, but the former in time of enactment repeals the later, under the plaintiff’s application of the strict, technical rules of interpretation. Meanwhile the citizen is inexorably held to the letter of the intermediate act, and cannot be excused for being misled and following the more liberal provision for notice, if he should fail to look for and discover the narrower one, which is possible. But canons of construction are not arbitrary or infallible, and should not be permitted to prevail against reason and justice in construing inharmonious legislative enactments. As said in Winters v. City of Duluth, 82 Minn. 127, 84 N. W. 788, “Canons of construction are not the masters of the courts, but merely their servánts to aid them in ascertaining the legislative intent.” A statute amending a previous act, while it might not affect an intermediate law, if its terms give best expression to the legislative will, should be held to do so if a reasonable regard for the apparent purpose of the lawmakers required that result, for the rules which have been adopted by the courts to construe acts of the legislature have the ultimate object of discovering their sensible design, rather than to- reach logical deductions, since “the intention of the legislature should always be followed wherever it can be discovered, although the construction seem contrary to [324] the letter of the statute.” Grimes v. Bryne, 2 Minn. 72 (89); Ott v. Great Northern Ry. Co., 70 Minn. 50, 55, 72 N. W. 833. We are of the opinion, upon the best view we are able to discover of the legislative purpose in these incongruous enactments, that it was not the intent to reduce the number of publications, which is the only means provided of conveying by due process of law to the landowner the requisite notice that valuable property rights are jeopardized. Notwithstanding the apparent repugnancy of Sp. Laws 1891, c. 7, § 7, to Sp. Laws 1887, c. 7, § 36, as amended, we incline to the opinion that each was passed to secure different objects. The 1887 law, re-enacted in Sp. Laws 1891, c. 12, § 36, specifically provides for two notices to be given by the treasurer only, on application for judgment; and, while a comparison between the act of 1887 and section 7 of the act of 1891 indicates an inconsistency between, the two, such inconsistencies are continually occurring in statutes, where a particular purpose is intended in one, which is found to be at variance with some general provision of another, and leads to the inference that there is no intended conflict between them, but that both should be construed to realize distinct results, and secure the aims sought in each. Sp. Laws 1891, c. 7, § 7, relates to all notices given by the board of public works or the treasurer. Sp. Laws 1887, c. 7, § 36, relates to an application for judgment upon which a forfeiture may be effected, hence should be construed strictly, and, if repealed, is repealed by a general provision that might have been supposed by the legislature to have related to notices of a character other than applications for judgment. And again, it seems inconceivable that the legislature should within two days have enacted two provisions, in one of which the property owner is assured that valuable rights will not be taken from him with less than two published notices thereof, and in another that it can be done upon one. We therefore construe the provisions of Sp. Laws 1887, c. 7, § 36, as applicable particularly to applications for judgment, and title to be secured thereby, while Sp. Laws 1891, c. 7, § 7, as relating to all other notices, which would apply to numerous purposes, where notices are to be given either by the board of public works or the [325] treasurer under the charter, when no judgment for the sale of lands is desired, and no forfeiture sought. Under this view, not only should Sp. Laws 1891, c. 7, § 7, be strictly construed, to avoid injury to vested rights, and essential regulations to protect them, but to avoid an implied repeal thereby of that portion of Sp. Laws 1887, c. 7, § 86, which provides for two publications. This is in harmony with the rule that repeals by implication are not favored, and reconciles a seeming conflict between two legislative acts passed so clo.se together that it would seem as if they were intended to harmonize with each other. Judgment affirmed.