substituting one mode of proceeding for another, they must afford a reasonable remedy. An act that should wholly extinguish all existing remedy, so as to leave no redress and no means of enforcing a contract, would, by operating in presenti, impair its obligation. If, therefore, the act of 1833 be regarded as abolishing the power of the auditor to make the deed in question, it is equally obnoxious to the constitutional prohibition, whether it is considered as operating upon the obligation, or the remedy upon the contract, because it extinguishes all redress, by taking from the purchaser all remedy against the only one who had authority to make the conveyance, without substituting any one in his place for that purpose, which might have been done; for it is not contended that there is, or can be, a vested right in a particular remedy, or in a special mode of administering it. In these, then, there is no vested right, but there is such a right in some substantial and efficient remedy, and that right is as much within the protection of the constitution as the obligation of the contract. The act, therefore, that takes away the old remedy, as is contended, has been done in this case, without providing a new one, is repugnant to the constitution and void. It has been suggested by counsel, that the legislature would make a deed upon a proper application; but that is not an adequate remedy, the grant of which depends upon the will of the legislature. When,' says Judge Story, we speak of the obligation of a contract, we include, in the idea, some known means, acknowledged by the municipal law, to enforce it.' It is also a well-settled principle, that the repeal of a law in which a contract consists, is an infringement of the constitution. A legislative grant is a contract of this description, and so is the one under consideration, so far as relates to the conveyance. A repeal, therefore, of that part of the law which provides for a conveyance, would impair to that extent, the obligation of the contract. Whatever *480 diversity of opinion, therefore, there may be, as to how far the existing law enters into, and forms a part of, a contract between individuals, as a general rule, I think there can be no question that it does so in this case, and that the purchaser's title to a deed cannot be taken from him by the repeal of a law

6

that forms part of the contract. If it was otherwise, then every executory contract entered into by the State, or its officers on her behalf, in virtue of an act of the legislature, may be avoided by them at discretion, although the terms of the contract have been complied with by the other contracting party."

It is well settled, that repeals by implication are never favored, and that the repugnancy between a prior and subsequent statute must be of such a character that the two cannot be reconciled with each other, and made to stand together. In this connection it may be added, that no revenue law is to have a retrospective operation, unless the language of the law is so clear and explicit as to leave no room for doubt, and even then, if such retroaction has the effect to divest rights acquired under the prior law, such a construction cannot be tolerated.1 And it may be laid down as a general rule, that in determining the validity of a tax title, the case must be governed by the law as it stood at the time of the assessment and sale.2 (a)

1 Garrett v. Wiggins, 1 Scamm. 335.

2 Crown v. Veazie, 25 Me. 359; Eldridge v. Tibbitts, 5 La. An. 380.

(a) Where a sale was made while the law extending a married woman's right of redemption beyond three years was in force, the subsequent repeal of that law did not affect the right to redeem from such sale. Adams v. Beale, 19 Iowa, 61; Myers v. Copeland, 20 Iowa, 22.

And conversely it seems there is a vested right on the part of a purchaser to acquire an absolute title if the land is not redeemed within the time fixed by the law existing at the time of sale. See McCulloch v. Dodge, 6 R. I., 346.

CHAPTER XXXIV.

OF THE JURISDICTION OF THE COURTS IN CAUSES INVOLVING THE VALIDITY OF TAX SALES, AND OF THE REMEDIES OF PARTIES INTERESTED THEREIN.

ORDINARILY, the validity of a tax, and the regularity of the proceedings to enforce its collection, are questions properly cognizable in a court of law. But a court of equity undoubtedly possesses ample authority to restrain a tax sale, where injus tice might result, but for this restraining power. It is well established, that equity will restrain the sale of an estate, in all cases of trusts, and special authorities, where the sale would be inequitable, or operate as a fraud upon the rights or interests of third persons; and especially where the trustee is about to abuse his trust, or the donee his authority. This principle is applicable to tax sales. Where the officer has no power to sell, or proceeds to sell without observing the more essential requirements of the statute, under which he derives his authority, a court of equity may enjoin the sale. (a) The officer has no right to proceed in such a case or in such a manner; and the execution of the power under such circumstances, is calculated to cast a cloud upon the title of the

3

1 [In 1858, the legislature of Michigan attempted to confer the power of adjudicating upon tax titles upon Circuit Court commissioners, but the Supreme Court held, that this was a judicial power, and could not be constitutionally vested in those officers. See Art. 6 of Michigan Constitution, § 6; Waldby v. Callendar, 8 Mich. 430.]

2 Waterman's Eden on Injunctions, 339 note.

(a) That equity will not enjoin a tax attempted to be levied by an officer de facto under authority incident to his office, but may do so if the levy is by one, without color of office, to which such power is incident. See Munson v. Minor, 22 Ill. 594.

3 See Williams v. Cammack, 27 Miss. (5 Cushman) 210.

owner, and to render it unmarketable, in the equitable *482 sense of that term. And the effect may be, that a legal contest about the right may be postponed, until the evidence of the owner's right may become lost by time or accident. Where the owner is in possession of the land, at the time the illegal proceeding is about to take place, he has no remedy in a court of law, which would indemnify him for the threatened wrong to his title. Should a sale and conveyance take place, under the proceedings alleged to be illegal, the owner, because of his possession, could not test their legality by an action of ejectment; (a) and, unless the purchaser at the tax sale, or those claiming under him, disturb the possession, or commit some act of trespass, to the injury of the inheritance, thereby inviting the rightful proprietor to a contest, the latter would be entirely remediless at law, and compelled to await the action of the adverse claimant. Surely, under such circumstances, a court of equity would grant relief upon the familiar principles of action in that court.

The New York authorities seem to be somewhat vacillating upon this point. In one case, it is said, that if the proceedings are void, the law affords an adequate remedy, without a resort to a bill in equity; in such case, the sale would not divest the title on the other hand, where the proceedings are merely erroneous, and not void, there is no equitable power in the court to revise and correct them. But in Van Doren v. New York,2 an illegal tax proceeding was enjoined, the court taking the distinction between a proceeding void upon its face, and one rendered so by extrinsic evidence; e. g. where the land was not subject to taxation, where the taxes had been paid, or the sale redeemed from. [And in Scott v. Onderdonk, in the same State, it has since been held, that if the instrument alleged to create a cloud on the title of land taxed, be itself void

(a) Polk v. Rose, 25 Md. 153. But when the premises are not in the actual possession of any one, it seems a recorded tax deed draws after it constructive possession, and the owner may maintain ejectment against the grantee of the deed. Parish v. Eager, 15 Wisc. 532.

1 Livingston v. Hollenbeck, 4 Barb. 16; Van Rensselaer v. Kidd, 4 Barb. 17. And see Cox v. Clift, 2 Coms. 118.

2 9 Paige, 388.

on its face, or if defective for the want of any of those preliminary proceedings which the party claiming under it would be bound to show, the instrument will not be set aside

*

*

in equity, but the party will be left to his remedy at 483 law. On the other hand, if the instrument is itself made presumptive evidence that such preliminary proceedings were in fact had, then the instrument may be set aside in equity, if in fact void for a defect in such proceedings.

Accordingly it was determined, that where land was sold for an alleged assessment, which had never in fact been laid, and a deed was about to be executed which by statute was prima facie evidence that a valid assessment had been made, the court might restrain the execution of the conveyance, might declare the sale void, and cancel the certificate which had been already issued to the purchaser.1 And the same doctrine has been more recently adopted in Wisconsin,2 in a case where the taxes were illegally assessed.] In other cases, the courts of that State have sustained bills of interpleader against collectors of adjoining counties, at the suit of the tax-payer, where his property has been assessed in each county. The reason of the distinction in the New York cases, between proceedings void upon their face, and those which are rendered void by evidence aliunde, is, that in the former case, the defect will remain apparent as long as the document has an existence; while in the latter case, the evidence of illegality rests in the memory of man. With due deference to the New York judges, who are conceded to be highly respectable, in point of legal attainment, it may be remarked, that their adjudications cannot be supported upon principle, and are clearly against the current of authorities. Preventive justice, administered through the restraining power of a court of equity, is one of the most valuable features in our system of jurisprudence. The application of this principle, to proceedings to enforce the collection of a tax, and

1 4 Kernan, 9. And the same rule was distinctly approved in Weller v. St. Paul, 6 Minn. 106.

2 Dean v. Madison, 9 Wisc. 402. See also Knowlton v. Supervisors of Rock County, 9 Wisc. 410; Weeks v. Milwaukee, 10 Wisc. 242.

3 Van Rensselaer v. Kidd, 4 Barb. 17; Thomson v. Ebbets, Hopk. 272; Mohawk & Hudson R.R. Co. v. Clute, 4 Paige, 384.