St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1886-12-28
Berry and Vanderburg Holding that little
in the Ohaunoy-Wass Case
is Not Good.
County superintendent IN
Sossion--Goy. Hauser, of Mon
tana, is in the CITY,
GErminfe'' at the Grano-N uiueh
Bits of News Found on very
Cold Day.
TAX TITLES ARE GOOD.
So Three of the supreme
Judges Reiterate--Berry anu
derburg DO Not Think 50.

WaSS tax title case was ndHu0eA " -
supreme court Yesterday. Inc eSsehtlai
facts of the case, which comes from Duiuth:
are that the taxes on the land IN queStloh
were properlv paid and a receipt gwen Dut
+be countv auditor neglected to properly
record the fact and the land was returieu do
delinonent. The owner permitted IL 10 De
sold at fax sale and tax deed TO pc Cd
tanned. The fact that the taxes had peeh
Maid was not shown in evidence and the
case was carried to the supreme court on a
demurrer. It was decided some months ago
that the tax title was valid, Judge perry
dissenting. The case was subsequently az
lowed reargument on when tpe present
decision is given. No syllabus is gwen puG
the opinion is by Chief Justice Gilman anu
occupies ffty-eight pages OF legal cap:
Judges Dickinson and Mitchell ME JOINT
concurring opinion. the former decISl9n Vi
the court being sustained. Judge Berry
JiSSepts as before and Judge Vanderburg
also files a long dissentingopiniOn being the
only one of the Judges holding opinions dlI-
ferent from those when the former decision
was given. A synopsis of the decision Is
as follows: ..o,,
The RIGHT TO give to tax sales the sancnon
of previous judicial determination OF Tue
right 10 make such sales as helu ny INC
courts is apparent from the TACT tn.' ~
many cases the matter OF the nature VI Ino
proceedings to enforce collectloh u t"Aea
AGAINST real estate has been before the court
and in 10 case rior 10 this has the court lnti-
mated auy doubt that the Judgment ulrec.iHs
the land 10 be sold for the tax menloheu III
if is entitled to the same force ana enecI ae
Judgment in ordinary action. In sec. 10;
original act, chap. 1, laws 1874, payment anu
exemDtions were provided for as deIehse u
no mad in the proceedings. This provision
has remained through all changes IN Ine law.
Provision was made that sale might oe set
aside on proof t'that court fenueflhs 'uO
Judgment pursuant to which the SAFE was hiau0
boJ not substitution to render the judgment
The court holds the legislature meant SOME
thing nv alterations Of the law, ana from the
fact that after q decision (Chisago Couhty vs.
ST Paul & Duluth Railroad) had beeh renu-
ered in 1880, deciding that the proceedln" IL
one 10 try and determine the validity Oh INT
fay snpearing in the list filed, and that the
oucstion does not go 10 the jurisdiction OF the
court was filed. Since that decislop the reg
isIature made no change, and IL is presuueu
that It's acGuiescence showed 1t IN accoro Win
legislative intentions. In 1851 II pasee9 q
law TO enforce the payment or taxes WHICH
heoame delinnuent prior to 1879. The law re-
served no rights of redemption except eX-
emp1ion or payment OF taxes NothWit1-
standing the clause quoted from secuoh 20
the court thinks the tax Judgment MAJ III q
collateral acJlOD Dc stSSdhOA AO1 "tN'i~
diction If the legislature had lntehoed Inat
the court can have no jurisdiction unless the
toy is DELINQUENT. then We would eZpect pro-
vision for dismissal OF proceeding IN case Tue
court find il not delinquent. instead Oh LOT
Judgment on the merits according 10 inc
Sn,3ing Power to try and render judgment
whenever that power is given Jurls-
5;ct;on is conferred, no matter
what terms the statute employs II
we make delinquency in fact prerequisite
70 the power Of the court to act-ail without
which II cannot pass on anything. ana IL II
rrnn,,o+ aatermiue the matter of delinquency.
What can there be for it 10 try? Why provide
for answers objections and defenses for a
trial and Judgment? To constitute legally
delinouent tax on land, three things are neces-
sary First, that the land
t. suBJECT TO TAXATION.
cooord that n tax authorized by law has been
1avind on if in a manner provided by law.
zrI,f,ir13zthat the tax remains unpaid after the
1ime appointed by law for its payment. TO
= make n delinquent each OF these things must
he shown: each is essential as eltner OF the
others If the Jurisdiction Of the court de-
Dands on delinquency. the absence
pf either of these elements will de-
feat il. The main defect III the tax law
urior 10 1874 was not I'D the detalls Dy Whlch
fares were assessed. but IN the mode OF en-
forcirg their payment. All the proceedings
down 10 and including the sale and execution
of the deed were the acts of merely minis
4or;aI officers There was no way for the
stare to test its right to sell, nor by the pur-
chaser of the sale except IN an actlon De
eu,een him and the former er.whicn action
the purchaser might not Tor years De in a
-1ocition to bring. All the risks were cast on
tho nnrchasers And the courts everywhere
had adopted ana adhered to rules OF decision
in 1e poet to the acts OF ministerial Oncers'
,-eouiriug such strict compliance with the
germs of the statute as made II practically I'M
q A IL
Seo,Iance. the attempt TO enforce payment by
sale without Judgment became pi acileaIly a
Inockerv No one would bid; owners, II SO
disnosed. defed the attempt of the govern
ment to collect its revenues The tax
laws had no efficiency, for they
had no terror for those disposed to evade
,aaS mapt The essential difference between
ths former and the present law is in the mode
of enforcing payment. The change can De
avnlained only b. assuming that the leGlsla-
1ure intended to SUBSTITUTE LOT inc former
mode enc by which the sale should be made
1,nder the sanction of Il judicial decree eS-
+abIishinr the right to sell, on which bidders
could safely rely. We have made references
90 cecisiops upon the tax laws of other states
f0r the Durpose of showing that, though such
Saws as to the mode Of enforcing payment are
~irni,ar TO Ours. in no instance has it been
sIpposed that the jurisdiction OF the court
denended in any respect on valid unpaid
tax. but that such jurisdiction has its incep-
tion IN the fling in the court OF the petition,
s-nnort or list which first brings the matter
S,.Fo.a the court. We are of the opinion tina;
1one of the objections made on behalf of the
anpIicants are well taken. and that the
fornar decision of the court should be ad
hered TO.
A CONCURRING OPINION.
Following is a synopsis OF the concurring
onipion by Judges Mitchell and Dickinson
This case has been almost overwhelmed by
ht.inf q nd afo-fI acF1tc
bnt like all questions of statutory construc
~ion If comes down to legislative intent, and
~rhotber we consider the general plan anC
scheme of the tax law as whole, or its sew
eraI provisions separately, we can ind no es
oane from the conclusion that delinquency
GrnIndtno all that the term inpliesl is thu
Tery issue rendered in these proceedings anC
1,roa which the judgement is conclusive; ant
that everything, whether payment OF the tax
exemption of the property from taxation, ii
legality of the tax, or anything else which
would show that the land was not deiin
o1ent in fact was mere matter of defense
no rive it any OTHER construc
ton would, as it seems to us
he An act of judicial legislation. TIL
Drecise point in principle involved In the pres
ent case was squarely aec d.is SIX anu seNel
wears ago in the case of ChisaSo County We
ST Paul g. Duluth Railroad Company, 2
Minn.. 10a. in which this court uses tn
Following language: 1T is the policy OF tn
S+atnte to see that every objection to tn
anforcernent of the taxes appearing on tn
I;st filed should De Irrigated and decided il
those proceedings. That the land is exempt
or ttst the tax has been paid, is a defens
vvhicb must be made to appear by answer an
1roof" This feature of the tax Jaw, nov
REnder consideration is, in our opinion. bot
harsh and dangerous, but the remedy is wit
she legislature which makes the laws, an
~,ot with the courts, whose only power is t
apply them-
JTDGE VANDERBURGH DI5sENTS.
synopsis of Judge Nanderburgh's opin
g., - % fn!l0WS.