CHAPTER X.

CURING DEFECTS IN TAX PROCEEDINGS.

Intimately connected with the construction of tax laws is the question how far the legislature by other enactments has power to dispense with strict obedience to the regulations prescribed by itself, and which have had for their manifest purpose the protection of the interests of those who are taxed. This is a subject presenting many intrinsic difficulties, and which has given rise to much contrariety in judicial decisions.

Curative laws. An act of dispensation may assume any one of several forms:

1. It may assume the form of a rule of conclusive evidence intended to preclude a departure from the law being proved.

2. It may take the form of a mandate to officers, commanding them to give effect to proceedings that have been taken, and to disregard in doing so any irregularities or other defects. 3. It may be a special curative statute to heal defects in certain specified proceedings which have been before taken. 4. It may be a general curative statute to heal irregularities or defects in any proceedings whatsoever previously taken.

5. It may be a general statute for future cases, which, while marking out a course for the officers to pursue, shall at the same time declare that irregularities shall not vitiate any proceedings that shall be had under the statute.

6. Besides these, there may be either a special or a general law for reassessing the tax when the proceedings for its collection have proved ineffectual.

Legislation coming under each of these heads is to be met with in the statutes of the several states, and some attention to each seems therefore requisite.

1. Conclusive Rules of Evidence. It is within the province of the legislature to prescribe what rules shall be observed in the production of evidence in court. In the exercise of its authority over this subject, it has sometimes provided that the burden of proof should be upon one party to a suit rather

than the other, and that a particular showing by a party shall make out in his favor a prima facie case. This it has full power to do, and it may make the rules which it prescribes apply to controversies previously in existence, even though retrospective legislation be forbidden by the state constitution.1 Relying upon this undoubted principle of constitutional law, the legislature has in many cases adopted enactments that certain reports, papers or other documents should be prima facie evidence of their own verity, and perhaps that certain proceedings which should have been taken before the report or other document was made were taken in fact, leaving the party who denies the truth of what is thus prima facie evidenced, to make out his case affirmatively. Of the power to do this there is no question on the authorities. But the legislature cannot pass conclusive rules of evidence; that is to say, it cannot make the showing by one party to a controversy conclusive of the truth of the facts shown, thus in effect denying to the other party a hearing. Its power over the rules of evidence is a power to shape and mould, for the purposes of justice, the rules under which parties are to make a showing of their rights, and not a power to preclude their showing them. "The most formal conveyance may be a fraud or a forgery; public officers may connive with rogues to rob the citizen of his property; witnesses may testify or officers certify falsely, and records may be collusively manufactured for dishonest purposes; and that legislation which would preclude the fraud or wrong being shown, and deprive the party wronged of all remedy, has no justification in the principles of natural justice or of constitutional law. A statute, therefore, which should make a tax deed conclusive evidence of a complete title, and preclude the owner of the original title from showing its invalidity, would be void, because not a law regulating evidence, but an uncon

1 Rich v. Flanders, 39 N. H., 304; Southwick v. Southwick, 49 N. Y., 510; Gibbs v. Gale, 7 Md., 76; Cowen v. McCutcheon, 43 Miss., 207; Fales v. Wadsworth, 23 Me., 553.

2 See chapter XV. A statute making the collector's certificate prima facie evidence of the facts recited does not violate the constitutional right to jury trial. State v. Van Every, 75 Mo., 530. An assessment, even though invalid, may be made prima facie evidence of the amount justly due. Olmsted Co. v. Barber, 31 Minn., 256.

stitutional confiscation of property." The case supposed is but an illustration of the general rule, which applies as well to all the necessary and jurisdictional steps leading up to the deed. The law of the land requires that every party should have an opportunity for a trial of such rights as he claims; and there can be no trial if only one party is suffered to produce his proofs. We may say in general, therefore, that it is not in the power of the legislature to lay down conclusive rules of evidence by way of obviating defects in tax proceedings.

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2. Legislative Mandates. A mandate to officers commanding them to give effect to invalid proceedings would be ineffectual for reasons equally conclusive. If such an act proceeds without an inquiry into the facts, it is a naked attempt to transfer one man's property to another by mere legislation, and this is not an authority which belongs to any legitimate government. If it assumes to proceed upon evidence, then it

1 McCready v. Sexton, 29 Ia., 356. And see Groesbeck v. Seeley, 13 Mich., 329; Case v. Dean, 16 Mich., 12; White v. Flynn, 23 Ind., 46; Corbin v. Hill, 21 Ia., 70; Abbott v. Lindenbower, 42 Mo., 162; S. C., 46 Mo., 291; Wright v. Cradlebaugh, 3 Nev., 341, 349; Young v. Beardsley, 11 Paige, 93; East Kingston v. Towle, 48 N. H., 57; S. C., 2 Am. Rep., 174; Taylor v. Miles, 5 Kan., 498; S. C., 7 Am. Rep., 558; Powers v. Fuller, 30 La., 476; Little Rock, etc., R. Co. v. Payne, 33 Ark., 816; S. C., 34 Am. Rep., 55.

2 The case of Smith v. Cleveland, 17 Wis., 556, contains some very general and unqualified language on this subject. That a deed may be made conclusive that the mere sale was according to law has been held in Iowa. McCready v. Sexton, 29 Ia., 356; Ware v. Little, 35 Ia., 234; Jeffrey v. Brokaw, 35 Ia., 505; Sibley v. Bullis, 40 Ia., 429. Whether these decisions would be generally followed may be a question; but where the sale does not conclude the tax payer, and leaves him a right of payment, there is room to urge that it is a mere formal proceeding. Under a provision that, before issuing a warrant for collection of a local assessment, the assessment shall be examined and certified as correct by street commissioners and the attorney and counselor of the city, which certificate shall be conclusive evidence of regularity of the proceedings, it has been decided that the certificate would only cover the formal proceedings. It does not determine the fact that the assessment is made against the proper persons. Newell v. Wheeler, 48 N. Y., 486. A tax deed cannot be made evidence of title when the land does not lie within the taxing district. Smith v. Sherry, 54 Wis., 114.

3 Cooley, Const. Lim., 5th ed., 454. In this connection it is hardly necessary to say that no reference is had to cases under statutes of limitation, nor to cases resting on principles of equitable estoppel.

4 Bowman v. Middleton, 1 Bay, 252; Wilkinson v. Leland, 2 Pet., 627, 657; Terrett v. Taylor, 9 Cranch, 43; Ervine's Appeal, 16 Pa. St., 256, 266; Lambertson v. Hogan, 2 Pa. St., 22, 24.

is usurpation of judicial authority, and for that reason void.' The legislature must prescribe rules, but when questions arise between parties whether rules have been complied with, the judiciary is the appointed arbiter.

3. Special Curative Acts. That acts to cure defects in tax proceedings previously had may be passed under some circumstances, has been affirmed in a great number of cases, some of which are referred to in the margin. The power may, therefore, be taken as satisfactorily established, and the questions to be considered relate to the limitations upon it. First, however, may be mentioned some cautions that should attend the exercise of the power, but which rest in policy only, and therefore address themselves to the legislative judgment and

An act requiring the board of supervisors of a county to proceed to the apportionment and assessment of drain taxes, some portion of which had already been adjudged void, and the others palpably were so, was adjudged void on this ground in Butler v. Supervisors of Saginaw, 26 Mich., 22. The cases of Lewis v. Webb, 3 Me., 326; Lane v. Gorman, 3 Scam., 238, 242; Campbell v. Union Bank, 6 How. (Miss.), 625, 661; Ervine's Appeal, 16 Pa. St., 256, 266; Cash, appellant, 6 Mich., 193; McDaniel v. Correll, 19 Ill., 226; Denny v. Mattoon, 2 Allen, 361; Budd v. State, 3 Humph., 483; Wally's Heirs v. Kennedy, 2 Yerg., 554, and Piquet, appellant, 5 Pick., 64, are referred to as illustrating under different circumstances the distinction between legislative and judicial authority. See, also, Lambertson v. Hogan, 2 Pa. St., 22; Greenough v. Greenough, 11 Pa. St., 489, 494; Haley v. Philadelphia, 68 Pa. St., 45; S. C., 8 Am. Rep., 153, 155; Calhoun v. McLendon, 42 Ga., 405; Trustees v. Bailey, 10 Fla., 238; People v. Frisbie, 26 Cal., 135; Sydnor v. Palmer, 32 Wis., 406, 409; Plumer v. Supervisors, 46 Wis., 163; Wall v. Wall, 124 Mass., 65; Forster v. Forster, 129 Mass., 559.

2 Kearney v. Taylor, 15 How., 494; Strauch v. Shoemaker, 1 W. & S., 166. 175; McCoy v. Michew, 7 W. & S., 386; Williston v. Colkett, 9 Pa. St., 38: Montgomery v. Meredith, 17 Pa. St., 42; Dunden v. Snodgrass, 18 Pa. St.. 151; Schenley v. Commonwealth, 36 Pa. St., 29; State v. Union, 33 N. J., 350; State v. Newark, 34 N. J., 236; Walter v. Bacon, 8 Mass., 468, 472: Patterson v. Philbrook, 9 Mass., 151, 153; Locke v. Dane, 9 Mass., 360: Trustees v. McCaughey, 2 Ohio St., 152; Butler v. Toledo, 5 Ohio St., 225: Cowgill v. Long, 15 Ill., 202; Mitchell v. Deeds, 49 Ill., 416; Boardman v. Beckwith, 18 Ia., 292; Allen v. Archer, 49 Me., 346; People v. Seymour, 16 Cal., 332; People v. Todd, 23 Cal., 181; Boyce v. Sinclair, 3 Bush, 261; Davis v. State Bank, 7 Ind., 316; Lucas v. Tucker, 17 Ind., 41; Musselman v. Logansport, 29 Ind., 533; Brevoort v. Detroit, 24 Mich., 322; Pillsbury v. Auditor-General, 26 Mich., 245; Tucker v. Justices, etc., 34 Ga., 370; Bellows v. Weeks, 41 Vt., 590. The legislature may validate a city ordinance so as to save the lien of a tax levied under it. Schenley v. Commonwealth, 36 Pa. St., 29. Where local laws for taxation are forbidden, a curative law for a local levy is incompetent. Kimball v. Rosendale, 42 Wis., 407.

sense of right, but do not constitute limitations upon legislative power. One of these concerns the retroactive character of such legislation; there being a special liability to abuse in retrospective legislation. The people in some states have felt this so strongly, that, by their constitutions, retrospective laws have been expressly forbidden; but in the absence of any such express restriction, there is nothing in the fact that curative statutes operate retrospectively which can preclude their passage. Then it is an obvious objection to such laws that they may be invidious and inspired by favoritism, since they select for confirmation certain proceedings-those of a single district, for instance-leaving all others untouched. But the defects may be in a single district only, or the circumstances such that the need of legislation is exclusively confined to it. Moreover, in different districts different regulations may have been politic originally; and if so, there can be no very conclusive reason why they may not in effect be made by a retrospective sanction of the regulations actually applied. Cities always have regulations in respect to taxation differing in some particulars from those which prevail in towns; and, as in the case of police regulations, such rules must be allowed to vary, because in some cases there may be the most conclusive reasons why they should. But we should think the very limit of such

1 Provisions of this nature will be found in the constitutions of Louisiana, New Hampshire, Missouri, Tennessee and Texas. In North Carolina retrospective taxation of sales, purchases and other acts done, is forbidden. Legislation for the enforcement of back taxes is not precluded by such a constitutional provision, where no new obligation is imposed. State v. Heman, 70 Mo., 441. See Wellshear v. Kelly, 69 Mo., 343.

2 State v. Newark, 27 N. J., 185; People v. Supervisors of Ingham, 20 Mich., 95. A statute which is but a mode of continuing or reviving a tax which might be supposed to have expired, and is in this sense retrospective, but which does not give a judicial construction to a former statute, is not unconstitutional. Stockdale v. The Insurance Co., 20 Wall., 323; Railroad Co. v. Rose, 95 U. S., 78. The legislature may cure irregularities in an assessment, though a certiorari has been sued out in respect of them. People v. McDonald, 69 N. Y., 362. A right given by statute to recover for taxes paid may be taken away, even though suits are pending. St. Joseph Co. Com'rs v. Ruckman, 57 Ind., 96.

In New Jersey it is held that where a town has made an unauthorized levy, the people have no power at a subsequent meeting to validate the levy-their powers being altogether statutory. Banta v. Richards, 42 N. J., 497.