spondents L. P. Stanford and wife were precluded by their relation as tenants from acquiring a tax title to the lots in controversy; (3) the court erred in admitting in evidence, over the appellant's objection, the treasurer's deed; (4) the court erred in refusing to hold the tax deed void; (5) the court erred in holding that it appeared that the respondents were the owners of the lots condemned and entitled to the award paid in the condemnation proceedings.

It is contended by the appellant that a tenant cannot acquire the demised property as against the landlord at a tax sale, and that a tenant who has entered or held possession of the premises under the landlord cannot, at least without surrendering possession, be heard to dispute the landlord's title, and many cases are cited to sustain this contention. This question, in our judgment, might be disposed of by the statement that a perusal of the record satisfies us that the court was warranted in refusing to find that the respondents were tenants of Stocker, the appellant's grantor, though we do not wish to impliedly hold that the rule that a tenant shall not be allowed to dispute the title of his landlord reaches beyond the particular title under which he enters into possession, or that he may not receive a tax title where he is under no obligation to pay the taxes on the land which becomes delinquent. The deed from the county to the respondent L. P. Stocker was offered in evidence over appellant's objection, and the ruling of the court on this is alleged as error. The deed, which is in evidence as respondents' Exhibit A, is dated March 27, 1902, and contains the following recital by the maker: "Given under my hand and seal of office this 17th day of March, A. D. 1902." There is thereon the impression of a seal purporting to be the official seal of the county treasurer. Section 103 of the revenue act of 1897 (Laws 1897, p. 184, c. 71) as amended by section 18 of the act of 1899 (Laws 1899, p. 299, c. 141), provided for the sale of lands by the treasurer for the enforcement of the lien of delinquent taxes, and provided for the issuance of a deed as follows: "The county treasurer shall execute to the purchaser of any piece or parcel of land a tax deed. The deed so made by the county treasurer, under the official seal of his office, shall be recorded in the same manner as other conveyances of real estate, and shall vest in the grantee his heirs and assigns, the title to the property," etc. And section 114 (page 190) provided as follows: "Deeds executed by the county treasurer as aforesaid shall be prima facie evidence in all controversies and suits in relation to the right of the purchaser, his heirs and assigns, to the real estate thereby conveyed, of the following facts," etc. The contention of the appellant is that the law not having prescribed any official seal for the county treasurer, no official seal could

therefore be attached by the county treasurer; that the deed, not having complied with the mandatory requirements of the law, is therefore void; that it not being such a deed as is required by the statute, it was not prima facie evidence, and that its admission in evidence was error. This construction of the law is suggested largely by the Nebraska cases, initiated in Sutton v. Stone, 4 Neb. 319, cited by appellant, and which rule was followed in many subsequent Nebraska cases. But the rule laid down in the Nebraska cases, we think, stands substantially alone in the adjudications in the United States. The United States cases cited to sustain this doctrine simply, as is their uniform custom, sustained the construction placed upon state statutes by state courts. In the case at bar the Legislature, after making a provision that the deed should be made under the official seal of the treasurer's office, failed to provide any official seal; so that there is no violation of the law by the treasurer or omission of any of the mandatory provisions of the statutemandatory in the sense of being harmonious and capable of being performed. Either it was the intention of the Legislature that the treasurer should establish or make an official seal and use it (and if that was the intention, then the law was complied with in this case), or there was an inadvertence and omission on the part of the Legislature in not providing the seal which it had in mind. we will not impute to the Legislature the intention to provide for the issuance of so important an instrument as a tax deed with the deliberate intention of so framing the law that the deed could not be executed at all. We think that "under the official seal of his office" must be construed as surplusage, not having any relation to or connection with any other provision made in the act, and that it is not a mandatory requirement. The mandatory requirement is that the county treasurer shall execute to the purchaser a tax deed, and that such deed shall be recorded as other conveyances of real estate.

For

The Mississippi case cited by appellant (Day v. Day, 59 Miss. 318) does not sustain its contention. There the statute provided that the auditor should affix his official seal, and that he had an official seal which he could affix is shown by the language of the court, viz., "The auditor has an official seal, and it should have been affixed to the conveyance." Even in Nebraska the doctrine contended for by appellant has been repudiated in later cases. In Orcutt v. Polsley, 59 Neb. 575, 81 N. W. 616, the court, in passing on this same contention, said: "It is true that section 491c of the Code of Civil Procedure does require the county clerk, the clerk of the district court, the county treasurer," etc., "to certify under their hands and official seals," etc. "It will be noted that some of the officers named in the statute are required

by law to have an official seal, while others are not so required. It would seem to be a very reasonable interpretation of the statute to construe it, which we do, as being the intention of the Legislature that such officers mentioned therein as the law required to have an official seal should certify under their hands only, as was done by the treasurer in this instance. It is not presumed that the Legislature intended that an officer should do what it is impossible for him to perform." This construction of the statute in question was approved and followed in Young v. Wood, 63 Neb. 291, 88 N. W. 528. But even if it should be conceded that the deed was not a legal deed as executed, the Legislature, by act approved February 21, 1903 (Laws 1903, p. 14, c. 15), enacted that the county treasurer should have an official seal, and provided as follows: "Sec. 2. In all cases in which the county treasurer of any county in the state of Washington shall have executed a tax deed or deeds prior to the taking effect of this act, either to his county or to any private person or persons or corporation whomsoever, said deed or deeds shall not be deemed invalid by reason of the county treasurer who executed the same not having affixed a seal of office to the same or having affixed a seal not an official seal; nor shall said deed or deeds be deemed invalid by reason of the fact that at the date of the execution of said deed or deeds there was in the state of Washington no statute providing for an official seal for the office of county treasurer." It is contended by the appellant that this statute was void because it had a retroactive effect and undertook to revivify a dead and void law. It is conceded by all authority that, within the constitutional power of the Legislature and under proper limitations, it may pass acts curing or validating irregularities, and that this may be done in tax proceedings. So that the test is whether or not the defect is jurisdictional, for if not jurisdiction, but a mere omission or irregularity, the Legislature has a right by retrospective statutes to cure it. This is a mere defect or omission, for the Legislature might have dispensed with a seal altogether, just as it had been doing for years before, and the statute would have been just as effective without the interjection of the words which are complained of as with them. Mr. Cooley, in his work on Taxation, vol. 1 (3d Ed.) at page 480, quotes approvingly from State v. Phillips, 137 Mo. 259, 38 S. W. 931, where it is said: "Many statutory regulations are designed for the information of tax officials, and a compliance is not a condition precedent to the validity of the tax;" and the author in this connection says: “All legislation must be supposed to take into account the possible, if not probable, mistakes and irregularities of officers in executing the provisions of the law, and it is hardly reasonable to infer an intent, on the part of a legislative body, that a failure of ad

ministrative officers to comply with any provision made for the benefit of the state exclusively, or merely as a guide in orderly proceedings, should deprive the state of all benefit to be derived from a compliance with other provisions that embody the main purpose and object of the law." In this case the provisions which embody the main purpose and object of the law were complied with. In speaking of curative legislation, it is said by Black on Tax Titles, § 483: "The objection most frequently urged against this species of legislation is that it impairs vested rights. But no party can be said to have a vested right in a defense based upon defects or irregularities not affecting his substantial equities. Curative statutes indeed may disturb vested rights, and if so they are void. But with the limitations we are here taking for granted, the objection is not tenable. A learned judge has said: 'All acts curing irregularities in legal proceedings necessarily divest vested rights of the parties, by closing the mouths of those who could otherwise avail themselves of such irregularities to escape from the fulfillment of what is a moral obligation, and, but for the irregularity, would be a legal liability. So whenever formal defects in the execution or acknowledgment of deeds, mortgages, or other conveyances are remedied by legislation, those who might have pleaded and relied on such defects are debarred of that which otherwise would have been a legal vested right. To deny the validity of such laws would be to run the plowshare through hundreds of titles which are founded and repose in security upon them.'" Again it is said: "When the Legislature, by a valid exercise of its authority has conferred power to act, and prescribed the mode of action, a substantial compliance with the mode will be essential to a valid exercise of the power, but if the power be irregularly or defectively exercised, and for that reason invalid, the Legislature may, by subsequent action, cure any such defect or irregularity, the requirement of which was originally within its discretion. * * # "9 In this case the power, by reason of the incongruity in the legislative enactment, was defectively exercised, and the requirement was originally within the discretion of the Legislature. So that, in the absence of any constitutional inhibition, it would seem certain that the Legislature had a right, under authority generally, to remedy the defect. The old rule of strict construction in relation to tax proceedings has been very much modified of late years, and necessarily so to permit the government to carry on its legitimate functions by the enforcement of its tax laws. It was said by the Supreme Court of the United States in the case of Turpin v. Lemon, 187 U. S. 51, 23 Sup. Ct. 20, 47 L. Ed. 70: "Laws for the collection and assessment of general taxes stand upon a somewhat different focting and are construed with the utmost lib

40

erality." And this court, in passing upon this question in Mills v. Thurston County, 16 Wash. 378, 47 Pac. 759, said: "But it is evident that, if the statute is to receive such a literal construction, it would serve little or no purpose. While there is some conflict in the authorities as to whether revenue statutes should be given a liberal or strict construction, it seems to us that the better rule is that they should receive a fair construction to effect the end for which they were intended." And we see no reason now for departing from the rule thus stated. A fair construction should be given to any law, whether it be a law in relation to the collection of taxes or not. We think no error was committed by the court in admitting the deed in evidence, and we may state here that, in passing upon this question, we have examined not only the briefs filed in this particular case, but briefs in other cases which are pending in this court on the construction of this statute in question.

There are other errors alleged, in relation to the unintelligible character of the delinquent tax certificates, their premature issue, and questions of notice, but we think they are all without substantial merit, anc that all such questions have been practically decided by this court in Luff v. Gowan, 38 Wash. 504, 80 Pac. 766; Taylor v. Huntington, 34 Wash. 455, 75 Pac. 1104; North Yakima v. Scudder, 41 Wash. 15, 82 Pac. 1022; and many other cases.

There being no reversible error committed by the court, the judgment will be affirmed.

to

4. SAME ORDER OF CONDEMNATION SUFFICIENCY.

In condemnation proceedings by a railroad the answer alleged that certain other land, not described in the petition, was a part of the same tract, and the testimony showed that the land described in the petition was merely a part of defendant's farm. At the hearing the court was asked to describe the entire tract in the order of condemnation as the land to be considered in the assessment of damages. The court remarked that if it was one contiguous tract it would have to be included, but the order described only the land described in the petition. Held, that the court should have made the order requested.

5. SAME-DAMAGES-TAKING PART OF TRACT. Where, in a condemnation proceedings by a railroad, the answer alleged that other land described therein was a part of the same tract described in the petition, and it appeared that the two descriptions were a part of defendants' farm, being merely separated by a highway, defendants were entitled to have all the land considered in estimating damages.

[Ed. Note. For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 367-369.]

Proceedings by the state on the relation of Henry J. Biddle and wife to review the proceedings of the superior court of Clarke county in railway condemnation proceedings by the Portland & Seattle Railway Company. On order to show cause why a writ of review should not issue. Cause remanded with instructions to proceed in accordance with the opinion.

Donald McMaster, Teal & Minor and J. W. Robinson, for relators. James B. Kerr and Geo. T. Reid, for respondent.

HADLEY, J. An order to show cause why a writ of review shall not issue to review the proceedings of the superior court of Clarke county in certain railway condemnation proceedings was made by this court July 11, 1906. The petitioner for the condemnation is the Portland & Seattle Railway Company, a corporation organized under the laws of this state. The petitioner seeks to condemn a strip of land 100 feet in width across the lands of Henry J. Biddle and wife for right of way purposes. Cer tain lands are described in the petition as comprising the entire tract of the defendants through which the railway line has been located. The defendants' answer admits the ownership of the land described in the petition, but alleges that they are the owners of a larger tract which is described as including what is mentioned in the petition, and that the whole of the larger tract described in the answer is owned and occupied by them as an entire tract as their farm and home. They allege that in order that their compensation may be fully ascertained, it is necessary to determine the damage to the entire tract owned by them considered as a whole. The answer also puts in issue the averments of the petition with reference to the legal capacity of the petitioner to condemn. A hearing was had. Testimony was submitted upon the question of public use.

and necessity, and the court found that the contemplated use for which the land is sought to be appropriated is a public use, and that the public interests require its appropriation. An order was entered condemning a strip of land 100 feet in width, the same being 50 feet in width on either side of the center line of the petitioner's location as staked out over and across the land described in the petition. It was also ordered that the damages should be ascertained by a jury in July, 1906. Before any hearing was had upon the subject of damages, the order to show cause herein was issued, and further proceedings were stayed. The record was certified to this court, together with a bill of exceptions. A hearing was had thereon, and this court finds that the record presents a proper case for the writ of review.

The defendants first contend that the petitioner did not show that it is authorized to prosecute a condemnation proceeding. The proof showed the regular incorporation of the petitioner as a railway company. It is contended, however, that the evidence did not show compliance with the following provision found in section 4250, Ballinger's Ann. Codes & St.: "Provided, that no such corporation shall commence business or institute proceedings to condemn land for corporate purposes until the whole amount of its capital stock has been subscribed." The books of the corporation properly identified were introduced to show that the entire capital stock had been subscribed. The evidence offered we think was competent for that purpose. It

is generally held that when one's name appears upon the books of a corporation as a subscriber for stock it is presumptive evidence that he is such, in the absence of other evidence to rebut the presumption. "The records of a corporation are competent and sufficient evidence to prove subscriptions to its capital stock and to show whether or not the number of shares required by its charter have been subscribed, where no proof is introduced to destroy their effect. If it is shown that a person's name appears on the subscription or stockbook of a corporation as a subscribed or stockholder, or upon the books of commissioners appointed to receive subscriptions, this is prima facie proof that he is a subscriber or stockholder." 2 Clark & Marshall on Private Corporations, § 454. In Turnbull v. Payson, 95 U. S. 418, 24 L. Ed. 437, the court said: "Taken as a whole, it is clear that the evidence offered was amply sufficient to warrant the jury in finding that the defendant was a stockholder as alleged. Where the name of an individual appears on the stockbook of a corporation as a stockholder the prima facie presumption is that he is the owner of the stock in a case where there is nothing to rebut that presumption; and in an action against him as a stockholder, the burden of proving that he is not a stockholder, or of rebutting that presumption is cast upon the defendant."

The above-stated rule is also supported by the following authorities: Glenn v. McAllister's Executors (C. C.) 46 Fed. 883; Glenn, Trustee, v. Orr (N. C.) 2 S. E. 538; Liggett v. Glenn, 51 Fed. 381; 2 C. C. A. 286; Marl| borough Branch R. Co. v. Arnold, 9 Gray (Mass.) 159, 69 Am. Dec. 279; Rockville & W. Turnpike Road v. Van Ness, 20 Fed. Cas. 1080, No. 11,986; 1 Cook on Corporations (5th Ed.) 55 and cases cited.

It is further contended that the records of the corporation admitted in evidence did not sufficiently show a subscription for all the capital stock. The articles of incorporation show the capital stock to be $5,000,000, divided into 50,000 shares of $100 each. The subscription for the stock, as shown by the records, is as follows:

"We, the undersigned, hereby severally subscribe for the number of shares of the capital stock of the Portland and Seattle Railway Company set opposite our respective names and signatures, and agree to pay to the Portland and Seattle Railway Company one hundred dollars upon each share so subscribed. Number

Name of Subscriber. of Shares.
C. M. Levey, Trustee. .49,995
J. C. Flanders.
C. F. Adams.
S. B. Linthicum.
John S. Baker.
James D. Hoge.

Amount. $4,999,500 00

1

100 00

1

100 00

1

100 00

1

100 00

1

100 00"

It will be observed that the subscription for the entire capital stock except $500 was made by C. M. Levey, trustee. It is contended that the subscription by Mr. Levey as trustee is not binding upon him personally, and is not a compliance with the requirements of the statute. The case of Livesey v. Omaha Hotel, 5 Neb. 50, is cited. That case was, however, decided upon the theory that it was not shown that a condition precedent necessary to bind the subscriber had been performed. That condition was that a given amount of stock should be subscribed before liability attached. The same was true in Old Town & Lincoln R. Co. v. Veazie, 39 Me. 571, also cited. Penobscot R. Co. v. White, 41 Me. 512, 66 Am. Dec. 257, is cited. It was held in that case that in order to show the absence of a full subscription, testimony on the part of a subscriber was admissible which tended to show that the subscriptions were not made in good faith. Lewey's Island R. Co. v. Bolton, 48 Me. 451, 77 Am. Dec. 236, is also cited. That case was decided upon the theory that certain statutory regulations must be observed before collection may be enforced against the subscriber. The statute required that notice of assessments should be given, and if any subscriber or stockholder neglected to pay for the space of 30 days after notice, the shares should be sold at public auction to the highest bidder, and the delinquent subscriber was accountable to the corporation for the deficiency. The last case cited by the defendants upon this subject