Opinion
No. 35071.
May 11, 1942.
1. TAXATION.
The statute requiring as "condition precedent" to obtaining of patent to tax forfeited land, the filing of written application therefor, was adopted for purpose of setting up procedure by which state would be protected from perpetration of fraud against it in the purchase of such lands (Laws 1936, ch. 174).
2. TAXATION.
The statute relating to confirmation of title based on tax forfeited land patent is available to purchasers who have acquired land through patents issued subsequent to the passage of the statute as well as to purchasers who acquired lands through patents issued prior to passage of the statute (Laws 1940, ch. 309, and secs. 1, 3, 7; Laws 1936, ch. 174).
APPEAL from chancery court of Harrison county, HON. D.M. RUSSELL, Chancellor.
Greek L. Rice, Attorney-General, by Jefferson Davis, Assistant Attorney-General, for appellant.
Chapter 309, Laws of 1940, is applicable only to those claiming title to lands under patents issued prior to its passage.
Should the court hold that this act is not unconstitutional then the next question presented is that of a construction of Chapter 309 of the Laws of 1940; that is, is the right given in this act to sue the state applicable to all tax forfeited land patents issued by the state or is its application limited to patents issued prior to its passage. The state contends that it applies only to patents issued prior to its passage.
It must be conceded that this act authorizing the state to be sued in certain cases is in derogation of the state's sovereignty.
It is admitted that a state cannot be sued in its own courts unless it has expressly consented to abrogate the prerogative of sovereignty and allow itself to be sued. A statute permitting such suits would be in derogation of its sovereignity and would be construed strictly.
State v. Joiner, 23 Miss. 500; Parmilee v. McNutt, 1 S. M. 179; Josselyn v. Stone, 28 Miss. 753, 761; Raymond v. State, 54 Miss. 562, 28 Am. Rep. 382.
Therefore, when the state's sovereignty is involved in any statute, statutes in derogation thereof are to be strictly construed in favor of the state; that is to say, the state's sovereignty is to be broadened and upheld, and not narrowed or destroyed, when the courts are called upon to construe a statute infringing upon sovereign power.
Potter v. Fidelity Deposit Co., 101 Miss. 823, 58 So. 713.
Thus, on this appeal the court is called upon to construe a statute infringing upon the state's sovereignty and in so doing "the state's sovereignty is to be broadened and upheld and not narrowed or destroyed."
The legislature said "this act" shall be construed to validate and quiet title to lands "heretofore" patented by the state. We take it, therefore, that the legislature intended for the act to apply, as it stated, to the patents that had been issued prior to that time and no others.
It is well settled that the legislature has the right to declare in the body of the act the construction to be placed thereon by the courts.
59 C.J. 948, Sec. 567.
When the legislature has done this such is binding on the courts.
59 C.J., Sec. 612(4).
The writer feels that the intention of the legislature is stated in Section 7 of the act and that further inquiry into this subject is unnecessary, especially when the act is strictly construed, as it must be, and when the entire act is considered in ascertaining the intention of the legislature.
At no time does it appear that the legislature was interested in weakening its general laws on the purchase of tax forfeited lands and in providing a method whereby a person might in the future file suit in which the court must "enter a decree validating and perfecting the title of said land from the state," in which suit the court is "granted large discretion and far reaching powers."
To the contrary, the legislature recognized the need of taking care of that situation, and that alone, that had arisen prior to the passage of Chapter 174, Laws of 1936, and the first few years that act was in effect and to that end the legislature passed the act that is now before this court for construction, that is, Chapter 309 of the Laws of 1940. In the body of the act the legislature made it clear that the act should be construed to validate and quiet title to land "heretofore passing" under patent from the state and, further, that in the trial of those cases then pending in which it was being sought by the state to have cancelled and annulled patents theretofore issued the court should exercise the large discretion and liberal powers conferred by this act and that no patents should be declared void except under the limited conditions provided for in the act. The question now presented is, did the legislature intend for this act to apply to all tax forfeited land patents that were to be thereafter issued by the state? Apparently the legislature did not so intend.
It is well settled that in the construction of a statute an unwise purpose will not be imputed to the legislature when a reasonable construction can be followed.
Huber v. Freret, 138 Miss. 238, 103 So. 3.
A construction which will bring about unthought of and unjust results will be avoided, if possible, and, if necessary to avoid such results, the court will widen or narrow the letter of the statute.
Canal Bank Trust Co. v. Brewer, 147 Miss. 885, 923, 114 So. 127.
For us to construe this statute so as to make it applicable to patents issued after April 22, 1940, would be to impute to the legislature an unwise purpose. It would be equivalent to saying that the legislature, having passed general laws governing the sale of tax forfeited lands, undertook by Chapter 309, Laws of 1940, to authorize any person claiming land under a tax forfeited land patent to have his title confirmed and quieted even though he failed or neglected to follow the general law in the purchase of such land.
It is unreasonable to imply that the legislature intended for the Attorney-General to investigate and approve the issuance of each and every land patent issued by the land commissioner with the approval of the Governor. It is also unreasonable to assume that the legislature intended for the court to pass upon every patent issued by the State of Mississippi after its issuance had been approved by the Land Commissioner and the Governor under Chapter 174 of the Laws of 1936. Yet, if it is held that the provisions of Chapter 309 of the Laws of 1940, extend to patents issued after the adoption of said act such is the effect thereof.
Heidelberg Roberts, of Hattiesburg, for appellees.
Chapter 309, Laws of 1940, applies to patents issued both before and after the passage of the act. The assistant attorney general bases his contention in this respect on the word "heretofore," appearing in the last clause of Section 3, and on account of the use of this same word in Sections 7 and 8 of the act. He contends that there is apparently conflicting provisions of the act in this respect, so that it is of doubtful meaning, and in connection with this argument, likewise refers to the history of the act, etc. We do not agree with him that this act is of doubtful meaning, or that there are any conflicting provisions therein. It should be borne in mind that the true rule of interpretation, if the language is plain or unambiguous, is to take the act as a whole, not simply one or two clauses or words therein, and determine from the entire act what was the true legislative intent, and, with respect, we submit, that when this act is read as a whole, giving effect to all of the language therein, it will be found that there is no conflict, and that it is a general act, applying to all patents which have heretofore been issued, or which might hereafter be issued.
The legislature had in mind a general act, one that would give relief to everybody, regardless of the date of its passage, and one which would forever stablize all patents issued, or to be issued. However, bearing in mind that there had, prior to the passage of the act, been irregularities in the office of the Land Commissioner, and much confusion with reference to the issuance of patents, even after the resignation of the prior land commissioner, the records having, for a time, been in a state of hopeless confusion, the legislature defined the one policy with reference to suits involving patents issued prior to the enactment of the statute, and left the court free to decide cases involving patents issued after its enactment, without any declaration from the legislature as to what should guide the court, and we think this was a wise thing for the legislature to do. It probably had in mind that there were many irregularities in connection with the issuance of patents prior to that time, and felt that the court should not give a strict construction to the statute and deny a purchaser in good faith a decree because of some irregularity, and, therefore, provided that as to such patents theretofore issued, they should not be cancelled or annulled because of mere irregularities, and further provided that as to patents theretofore issued, the act should be given liberal construction, so as to validate such patents, but it did not feel free to encourage such irregularities in the future. If it had provided that this liberal construction should apply to patents thereafter issued, this might have been construed, by those charged with the details of issuing these patents, as an invitation on the part of the legislature not to strictly comply with all of the requirements of the law. The legislature probably thought, and we think wisely so, that there should be nothing said or done by it, that might encourage any officer of the state to do anything other than to literally comply with every legislative enactment, so it laid down a liberal rule of construction and specified what irregularities would not amount to fraud, only as the act applied to patents theretofore issued, but, as to suits involving patents issued after the effective date of the act, it left the court free to decide these cases, free from any legislative declaration or policy.
The attorney general is insisting upon placing only a retroactive effect upon Chapter 309, Laws of 1940, and asking this court to hold that it is not prospective in its operation.
Except as to retrospective enactments clearly expressed as such, and except as to those wherein the terms are precise to the effect that their operation is confined to a state of presently existing facts, all statutes are prospective and operate upon the future — which is to say, they apply to facts as and when the facts come into existence, and in the future as regards the date of the passage of the statute.
Hester v. Copiah County, 186 Miss. 716, 191 So. 496.
The only difference in principle between this case and that of State of Mississippi v. Mrs. Ida K. Roell et al., 192 Miss. 873, 7 So.2d 867, this day decided, is in respect to the date of the issuance of the patents under which the appellees respectively claim; the patent in the instant case having been issued after the effective date of Chapter 309, Laws of 1940, the constitutionality of which is upheld in the other case. The demurrer in the present case challenges both the constitutionality of the above-mentioned statute and denies its applicability in a proceeding to confirm and quiet a title based upon a patent issued subsequent to the passage of the Act. The decision in the other case, therefore, controls in the instant case insofar as the constitutionality of the statute is concerned.
Prior to 1936, the method of selling tax forfeited lands by the Land Commissioner of the State of Mississippi was governed by Chapter 153, Code of 1930. While there were certain limitations, as, for instance, the amount of land which could be purchased by any one person, and those persons qualified to purchase such lands, there was no statute which fixed or prescribed the particular information which had to be furnished by the applicant to the Land Commissioner, in order to assist the Land Commissioner in determining what would be a fair value, nor was any application furnishing any information at all necessary in order to obtain a tax forfeited land patent. For reasons deemed by it sufficient, if not compelling in the interest of the public welfare, the legislature in 1936 adopted Chapter 174, the purpose of which was to set up a procedure by which the state would be protected from the perpetration of fraud against it in the purchase of such lands. State ex rel. McCullen v. Tate et al., 188 Miss. 865, 196 So. 755. This statute required as a condition precedent to the obtaining of patents to tax forfeited land that an application in writing be made, duly sworn to, setting forth, among other things, whether or not the land was occupied at the date of the filing of the application, and, if so, by whom; the nature and value of the improvements on the land; the approximate quantity of merchantable timber thereon; and such other information as the Land Commissioner, with the approval of the Governor, might require. Notwithstanding these safeguards there were charges of fraud made in connection with the obtaining of patents from the State Land Office under that statute, such as were disclosed in the case of Streeter v. State ex rel. Moore, 180 Miss. 31, 177 So. 54, and State ex rel. McCullen v. Adams, 185 Miss. 606, 188 So. 551, resulting in a decision in the Adams case declaring that inasmuch as the applicant for such a patent must furnish the information hereinbefore mentioned to the State Land Commissioner as a condition precedent to the right to obtain a patent, the application should be deemed one of the muniments of title thus obtained. It is a matter of common knowledge that this construction of the statute not only created confusion in regard to the patents which had been obtained by false and fraudulent representations or by the omission of material information called for in the applications, but it also rendered less marketable a great number of titles based upon patents which had been obtained in good faith. In providing by Chapter 309, Laws of 1940, a method by which the issue of fact as to whether any patent had been obtained for such a grossly inadequate consideration as to amount to a donation of public lands and whether fraud had been perpetrated upon the state in the procurement of the same could be judiciously determined, the legislature left chapter 174, Laws of 1936, to remain in full force and effect, but provided in Section 7 of the said Chapter 309, Laws of 1940, that the court in determining the issue of fact heretofore mentioned should liberally construe the latter statute in validating and quieting the title to lands heretofore obtained under a patent from the state. In providing for such liberal construction it is but natural that this requirement should be limited to lands theretofore patented. Otherwise, such a provision would be construed as encouraging those charged with the duty of issuing these patents in the future not to insist upon a substantial compliance with all of these positive requirements of the law, and also as an invitation to prospective applicants to be careless in the matter of furnishing truthful information to aid the officials in arriving at a fair price to be fixed for the sale, notwithstanding that Chapter 174, Laws of 1936, was not being modified or repealed by the subsequent act. We can not ascribe to the legislature an intention to render less effective these requirements as to fair dealing with the state in the purchase of such lands in the future or to withdraw the protection thereby afforded to the state from the perpetration of fraud against it. We think that the admonition for a liberal construction of the law in the matter of validating patents theretofore issued was made because of the confused state of the records of the State Land Office at that time, due to the loss of application papers, errors or omissions or incorrect statements made therein not amounting to actual fraud, and the inefficiency in the system of keeping the records due to an inadequate office force, as taken cognizance of by the legislature in the Act now under consideration and when it reorganized the land office department; and not for the purpose of denying the benefits of the act itself to those interested in land titles based upon patents issued subsequent to the effective date thereof. Moreover, Section 1 of Chapter 309, Laws of 1940, which creates the right in favor of any patentee or any person, firm or corporation claiming title or other interest in land under or through any patentee by virtue of any patent issued by the state for lands forfeited to it for nonpayment of taxes to have such title or interest confirmed and quieted, does not limit the right to patents theretofore issued. We, therefore, construe Section 3 of the Act making it the duty of the court to enter a decree validating and perfecting the title, except under certain conditions therein specified, and which finally concludes with a provision that "no patent heretofore issued shall be cancelled in such proceeding because of loss of the application papers to purchase said land, or because of errors or omissions or incorrect statements in said application, or other papers in connection with the sale of said land . . .," to be in keeping with the declared intention found in Section 7 of the Act that the same should be liberally construed to validate and quiet titles to such lands as had been theretofore patented, leaving the court free and unhampered by any suggestion from the legislature in deciding such issues as may arise in suits to confirm and quiet titles under patents thereafter issued.
In view of the fact that Chapter 174, Laws of 1936, is to continue in full force and effect we are unable to see any good reason for denying the benefits of Chapter 309, Laws of 1940, to purchasers who acquire land through patents issued subsequent to its enactment, nor are we able to discern any purpose on the part of the legislature to do so under the language and provisions of the Act as written. The decree of the court below in overruling the demurrer will, therefore, be affirmed and the cause remanded.
Affirmed and remanded.