QJorttfU Ham i>rl|ooI ICibtar^ 
 
Cornell University Library 
 KF 6785.W46 
 
 A treatise on the law of assessments :wh 
 
 3 1924 020 035 436 
 
The original of tiiis book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924020035436 
 
A TREATISE 
 
 LAW OF ASSESSMENTS: 
 
 WHEREIN ARE CONSIDERED 
 
 ASSESSMENTS CONSTITUTING THE BASIS OF GENERAL 
 TAXATION, 
 
 F1!0M THEIK INCEPTION TO COMPLETION; 
 
 ASSESSMENTS BY MUNICIPAL COEPOilATIONS, 
 
 FOR STREET AND OTHER PUBLIC LOCAL IMPROVEMENTS ; BY DRAINAGE 
 
 CORPORATIONS ; BY SWAMP LAND DISTRICTS, AND BY 
 
 PRIVATE CORPORATIONS. 
 
 Br D. W. WELTY, 
 
 OF THE CALIFORNIA AND ORBGON BAR. 
 
 NEW YORK AND ALBANY: 
 BANKS AND BROTHERS, LAW PUBLISHERS. 
 
 1886. 
 
Copyright, 1886, 
 
 BT BANES AND BEOTHERS. 
 
PREFACE, 
 
 It has been the aim of the writer to embrace, in a single 
 volume, the law pertaining to all classes of assessments. Those 
 constituting the basis of general taxation have been considered 
 first ; and next, the class creating a special tax or charge against 
 persons or property, or both — all from their inception to com- 
 pletion in consecutive order. ' No work has yet appeared treat- 
 ing exclusively of assessments. They have been considered 
 only in connection with tax titles and the law on taxation gen- 
 erally. In works embracing such wide range, the single subject 
 of assessmeiits could onl/Ti^ve. anid has had, a limited space. 
 It seemed to the writer th^t'-tlie gi-oujid was snfflciently large 
 and unoccupied to justify a work devoted wholly and only to a 
 consideration of the law governing assessments. Increase of 
 the population and wealth of the country have created an in- 
 crease of assessment and taxation. This remark applies with 
 force to our cities and to the modern systems provided for the 
 reclamation of swamp and overflowed lands. Increase of the 
 population of cities requires .corresponding increase of street 
 improvements. These are generally made at the expense of 
 adjoining property. Drainage and reclamation works are uni- 
 formly made at the cost of the property benefited. The levy 
 and assessment of such expenses must always continue to be an 
 increasing branch of municipal and district law. Summary 
 sales of real property for delinquent taxes, also actions and 
 suits brought under statutory authority to enforce the payment 
 of taxes and assessments have necessitated the adjudication c' 
 a great many questions growing out of assessments, and which 
 have not heretofore found their way into any text-book. In 
 the preparation of this work the writer has examined all the 
 cases available relating to assessments, and, when considered of 
 . practical utility, these have been cited at the proper section and 
 
 (iii) 
 
IV PKEFACK. 
 
 placed in the list of cases. He has availed himself of cognate 
 matter in the works of other authors, — principally Blackwell on 
 Tax Titles ; Cooley and Desty on Taxation, and Angell and Ames 
 on Corporations ; also for reference, to the valuable works of 
 Abbot's Digest Law of Corporations and Lacy's Digest of Rail- 
 way Decisions, so far as pertaining to assessments. Mr. Desty's 
 work on Taxation did not appear until the plan and scope of 
 this had been determined, and the work itself partially per- 
 formed ; but, before final completion, was enabled to examine 
 both volumes of this valuable contribution to the Law of Taxa- 
 tion. It would be hoping for too much that this volume should 
 be entirely free from error, mistake, and omission. "With full 
 consciousness of his own imperfections, the author therefore 
 asks the indulgence and forbearance of a liberal and charitable 
 profession. Where he found conflicting decisions, whether in 
 the same or different States, he has endeavored to present both. 
 Familiarity with these opposite rulings, with the requirements 
 of equalitj' and uniformity in taxation, and the underlying prin- 
 ciples upon which assessments should be made as between the 
 taxing power and the subjects of taxation, it is believed, will 
 result in harmonious legislation in the future upon this and 
 kindred subjects. If this volume shall aid the discharge of 
 official duty, pertaining to its subject matter, or tend to lighten 
 the labors of the practitioner and jurist, the author will feel that 
 his own are not without some measure of success. 
 
 D. W. WELTY. 
 
 PoKTLAND (Or.), September 29th, a.d. 1885. 
 
THE LAW OF ASSESSMENTS. 
 
 TABLE OF CONl^ENTS. 
 
 CHAPTER I. 
 
 PAGR 
 
 Assessments, 1 
 
 Sec. 1 . Taxes and Assessments defined. 
 Sec. 2. Assessments which are not taxes — defined. 
 Sec. 3. An assessment necessary to support a tax. 
 Sec. 4. Assessment Lists — not conclusive as to value — 
 
 penaltj' for not furnishing. 
 Sec. 5. Assessment Lists — requisites of. 
 Sec. 6. Assessment Roll — defined. Its requirements 
 
 mandatory. 
 Sec. 7. Assessments made periodically cannot be changed 
 
 after time for making same. 
 Sec. 8. Assessments, by whom and how made — form; 
 
 effect of not stating taxes separately. 
 Sec. 9. Adaptability to form. 
 
 CHAPTER 11. 
 Assessments — by whom made, . . . .17 
 Sec. 10. The proper oflScer must make assessments. 
 Sec. 11. Officers dejure and de facto. 
 Sec. 12. Officers de jure and de facto {continurA). 
 Sec. 13. Officers de jure and de facto {continued). 
 Sec. 14. Deputies or assistants. 
 
 CHAPTER III. 
 
 Assessor— LIABILITY of, 23 
 
 Sec. 20. Assessor not liable for his acts when erroneous 
 merely. 
 
 (V) 
 
VI CONTENTS. 
 
 Sec. 21. Assessor — personally liable for his acts when 
 
 without authority. 
 Sec. 22. Assessors personally liable for acts when in 
 
 determining a fact in favor of jurisdiction 
 
 they err. 
 Sec. 23. Assessors — personally liable for acts done 
 
 without jurisdiction — when they err in favor 
 
 of jurisdiction. 
 Sec. 24. Assessors — liable for omissions and errors. 
 Sec. 25. Assessors act both judicially and ministerially. 
 
 CHAPTER IV. 
 Situs 41 
 
 Sec. 30. Where property is assessable. 
 
 Sec. 31. Real Estate — parcels lying partly in two or 
 
 more counties. 
 Sec. 32. Real Estate — parcels lying in two or more 
 
 counties (continued). 
 Sec, 33. Where county divided — taxation airte-dating 
 
 division — where property assessable. 
 Sec. 34. Personal Property — presumed to follow the 
 
 person of owner : exceptions. 
 Sec. 35. Personal Property : where domicile changed 
 
 — assessable at domicile when assessments 
 
 perfected. 
 Sec. 36. Inhabitant and domicile. 
 Sec. 37. Two or more residences or domiciles. 
 Sec. 38. Domicile — must lose the old before acquiring a 
 
 new one. 
 Sec. 39. Situs for taxation of personal property of de- 
 ceased persons. 
 Sec. 40. Statutory Regulation — assessments at places 
 
 other than domicile. 
 Sec. 41. Personal property in transitu has no situs for 
 
 taxation. 
 Sec. 42. Situs of registered vessels for taxation. 
 Sec. 43. That personal property follows owner — a legal 
 
 fiction. 
 Sec. 44. That personal property foUdws owner — a legal 
 
 fiction {continued). Rules as to choses in 
 
 action. 
 
CONTENTS. vii 
 
 Sec. 45. That personal property follows owner — a legal 
 fiction: — Rules as to ehoses in action {con- 
 tinued) . 
 
 Sec. 46. Taxation an independent sovereign right — tax- 
 able property not relieved by prior taxation. 
 
 Sec. 47. Personal property of corporations, sitns of. 
 
 Sec. 48. Personal property of corporations, situs of — 
 certificate of incorporation fixes the place of 
 business. 
 
 Sec. 49. Situs of personal property of foreign corpora- 
 tions doing business within the state. 
 
 Sec. 50. Situs of railroads, telegraph lines and bridges, 
 extending bej'ond the state. 
 
 Sec. 51. Situs of real and personal property may be 
 regulated by statute. 
 
 Sec. 52. The equitable rule of situs of personal property 
 for taxing purposes. 
 
 Sec. 53. General rule governing the situs of property 
 for taxation. 
 
 CHAFTER V. 
 Situs (^continued), 123 
 
 Sec. 55. Corporate shares or stock in National Banks — 
 
 when and where assessable. 
 Sec. 56. Corporate shares or stocks — where and when 
 
 assessable {continued). 
 Sec. 57. Rules governing the assessment of shares or 
 
 stock of corporations. 
 
 CHAPTER VI. 
 Name of Owner, 132 
 
 Sec. 60. Assessments to be made to the owner by his 
 
 proper name, not to a deceased person. 
 Sec. 61. Listing as to names — controlled by statute. 
 Sec. 62. Assessments to be made to owner by his proper 
 
 name. — Rules as to corporations. 
 Sec. 63. Assessment of individual property to firm — of 
 
 firm to individual — of wife's property to 
 
 husband. 
 Sec. 64. Assessment of more than owned. 
 
via CONTENTS. 
 
 Sec. 65. Listing lands for street assessments. — Name of 
 owner. 
 
 Sec. 66. Assessment to Agent — when. 
 
 Sec. 67. Trustee — when property assessable to and when 
 not. 
 
 Sec. 68. After sheriff's sale — pending right of redemp- 
 tion. 
 
 Sec. 69. To the owner or occupant — when. 
 
 Sec. 70. Assessments to unknown owners — when must 
 be. 
 
 Sec. 71. Assessment to A. B. and all owners and claim- 
 ants, known or unknown ; and to unknown 
 owners, and all owners and claimants, known 
 and unknown. 
 
 Sec. 72. Assessment to unknown owners. — Ignorance 
 of owner presumed. 
 
 Sec. 73. Assessment to unknown owners — conclusive as 
 to owner as to the assessment. 
 
 CHAPTER VII. 
 
 Desceiption, 169 
 
 Sec. 80. Real Estate — how described. 
 
 Sec. 81. Real Estate — described by metes and bounds — 
 
 excepting portions. 
 Skc. 82. Real Estate — described by name, lot and block 
 
 — " east end of." 
 Sec. 83. Real Estate — where part of tract sold and part 
 
 retained : each to be described. 
 Sec. 84. Real Estate. — Insufficient description, when 
 
 furnished by owner, does not estop him. — 
 
 Ruling in California. 
 Sec. 85. Real Estate — what is not a pertinent description. 
 Sec. 86. Real Estate — description by which a surveyor 
 
 can identify it. 
 Sec. 87. Real Estate — description by boundaries, or in 
 
 some other way by which it may be known. 
 Sec. 88. Real Estate — a false call in description. . 
 Sec. 89. Real Estate — a false call in description (con- 
 tinued) . 
 Sec. 90. Real Estate — amending description. 
 Sec. 91. Real Estate — description of building, of more 
 
 than one story, owned in severalty. 
 
COSTEXTS. ix 
 
 Sec. 92. Real Estate — -when a portion used for religious 
 
 or other purposes, and not taxable. 
 Sec. 93. Real Estate — description, aided by headings of 
 
 assessment roll. 
 Sec. 94. Real estate — description — certainty required — 
 
 reference to a diagram — when allowed. 
 Sec. 95. Description of Railroads. 
 Sec. 96. Statutory requirements to assess in parcels not 
 
 exceeding 640 acres. 
 
 CHAPTER VIII. 
 PossEssoEY Rights to Public Lands, . . . 194 
 
 Sec 100. Are taxable by a state or organized territory. 
 Sec 101. Description of taxable interest and right to 
 
 public lands. 
 Sec 102. Claim to public lands — when assessable. 
 Sec 103. Assessment of proceeds of the mines. 
 Sec 104. Public Lands, after sale, taxable to purchaser. 
 
 CHAPTER IX. 
 
 Impkovements, and Description thereof, . . 201 
 
 Sec 106. Improvements taxable as real estate. 
 Sec 107. Improvements — how described. 
 
 CHAPTER X. 
 
 Assessment, whether in Separate Parcels or 
 IN Gross, 205 
 
 Sec 110. When assessed to unknown owners. 
 
 Sec hi. When separate parcels are assessed to known 
 
 owners, must they be assessed separately, 
 
 or may they be assessed jointly ? 
 Sec 112. Assessments must not include more land than 
 
 belongs to the same owner. 
 Sec 11.3. What are separate lots, parcels, and tracts, 
 
 and how same must be assessed. 
 Sec 114. When large tracts, required to* be assessed in 
 
 separate parcels — how to be described. 
 
X CONTESTS. 
 
 CHAPTER XI. 
 
 Desceiptioit of Personal Peoperty, . . . 221 
 
 Sec. 120. A general description sufficient. 
 
 Sec. 121. Property that is sometimes real and sometimes 
 
 personal property. 
 Sec. 125. Franchises are assessable only when made so 
 
 by special law. 
 Sec. 126. Choses in Action — description of. 
 Sec. 127. Classification of real and personal property. 
 
 CHAPTER XII. 
 Valuation, 234 
 
 Sec. 130. Valuation, the official act of the Assessor. 
 
 Sec. 131. Valuation of the capital stock, shares, and 
 property of corporations. 
 
 Sec. 132. Valuation of capital stock and shares, or capi- 
 tal stock and property, would be double 
 taxation. — Franchise. 
 
 Sec. 133. Valuation of capital stock and shares of capi- 
 tal stock and property and franchise — con- 
 tinued as to franchise and double taxation. 
 
 Sec. 134. Methods of valuing corporations for taxable 
 purposes. 
 
 Sec. 135. Charter and statutory requirements in the 
 valuation of corporate stocks, etc. 
 
 Sec. 136. Property to be valued at cash value — to be 
 the estimate of the Assessor. 
 
 Sec. 137. Excessive valuation — reviewable for fraud. 
 
 Sec. 138. Erroneous principle in making — not review- 
 able, when ; and in local assessments, when 
 reviewable. 
 
 Sec. 139. Valuation of possessory claims and undivided 
 quantities of real estate. 
 
 Sec. 140. Valuation — where a part of the property is 
 exempt. 
 
 Sec. 141. Real and personal property, also separate par- 
 cels of real property, assessed to the same, 
 owner, to be valued separately. 
 
 Sec. 142. Valuation of Railroads. 
 
■CONTENTS. xi 
 
 CHARTER XIII. 
 Equalization, 273 
 
 Sec. 151. Boards of Equalization. 
 
 Sec. 152. Creation of Boards of Equalization. 
 
 Sec. 153. Powers of Boards of Equalization. 
 
 Sec. 154. Boards of Equalization generally must notify. 
 
 Sec. 154c8. Opportunity to be heard must be given to con- 
 stitute a valid tax. — Due process of law. 
 
 Sec. 155. What should be stated in a complaint or notice. 
 
 Sec. 156. Where notice is required — necessary to give 
 jurisdiction. 
 
 Sec. 157. May add previous year's uncollected taxes 
 without notice. — Order may be entered 
 after adjournment. 
 
 Sec. 158. Boards act judicially — their action final. 
 
 Sec. 159. Failing or refusing to furnish list — equaliza- 
 tion denied. 
 
 Sec. 160. When furnishing list not necessary to entitle 
 a party to be heard. 
 
 Sec. 161. When equalization not allowed — tax-payer 
 still has a remedy against fraudulent valu- 
 ations. 
 
 Sec. 162. Boards of Equalization may be empowered to 
 make assessments and also equalize same. 
 
 Sec. 163. Knowledge of Values — how acquired and 
 applied. 
 
 CHAPTER XIV. 
 Exemption from Taxation, 296 
 
 Sec. 165. Character of property which is exempt. • 
 
 Sec. 166. Character of property which is exempt (con- 
 tinued) . 
 
 Sec. 167. Power of Legislature to exempt — and herein 
 of equal and uniform taxation. 
 
 Sec. 168. Unintentional omissions will not, but inten- 
 tional omissions will, render the assessment 
 roll illegal : including property exempt by 
 mistake. 
 
 Sec. 169. Exemption Laws are construed strictly. 
 
 Sec. 170. Exemption from taxation is not exemption 
 from local assessments. 
 
XU CONTESTS; 
 
 Sec. 171. U. S. Bonds not taxable upon their value 
 
 above par. 
 Sec. 172. Exemptions — consisting of deductions. 
 Sec. 173. Land Grants in aid of railroad corporations — 
 
 when cease to be exempt. 
 Sec. 173a. What is exempted under act granting lands to 
 
 a railroad corporation, and exempting the 
 
 property and shares of the company from 
 
 taxation. 
 Sec. 174. U. S. Bonds and Treasury Notes exempt — 
 
 converting money into, to avoid taxation. 
 Sec. 175. Exemptions are personal privileges, and can- 
 * not be transferred. 
 
 Sec. 176. When exemption may or may not be revoked. 
 Sec. 177. Property of one municipal corporation not 
 
 taxable by another. 
 Sec. 178. Where property is. exempt as to part only. 
 Sec. 179. When exemption begins and ends. 
 Sec. 180. Omission to tax is not exemption. 
 
 CHAPTER XV. 
 EQTjALiTy AND Unipokmity, 327 
 
 Sec. 185. Absolute equality in taxation not attainable. 
 
 Sec. 18G. Equality and Uniformity must include valu- 
 ations. 
 
 Sec. 187. Equality and Uniformity as between counties, 
 persons, and corporations. 
 
 Sec. 188. The Fourteenth Amendment includes corpor- 
 ations. 
 
 Sec. 189. Under the Fourteenth Amendment, equality 
 and uniformity in taxation become a legal 
 right, which may be enforced in the Federal 
 courts. 
 
 Sec. 190. Omissions and Inequalities in Valuation. 
 
 Sec. 190a. Conflict of Jurisdictions. 
 
 CHAPTER XVI. 
 
 Amendlng and Reviewing Assessments, . . 343 
 
 Sec. 191. Amending of — within Legislative control. 
 Sec. 192. Assessments reviewed only on charge of fraud. 
 
CONTENTS. XUl 
 
 Sec. 193. Validity of assessments may always be tested 
 
 somewhere. 
 Sec. 194. Assessments apparently valid, if paid, wlien 
 
 may be vacated and recovered, back. 
 Sec. 195. Aggrieved party only may complain — who is. 
 Sec. 196. An assessment, similar to a judgment. 
 
 CHAPTER XVir. 
 Re-assessments, 349 
 
 Sec. 197. Re-assessments can only be made when autlior- 
 
 ized by statute. 
 Sec. 197a. — Applicable to street assessments. 
 Sec. 1976. Re-assessments partake of the character of 
 
 curative acts. 
 Sec. 197c. — When authorized, must provide for notice 
 
 and equalization. 
 Sec. 198. A re-assessment cannot be made where the 
 
 original assessment is valid, nor to make 
 
 up deficiencies. 
 Sec. 199. A re-assessment, made at a party's own re- 
 quest, of his individual assessment, estops 
 
 him. 
 
 CHAPTER XVin. 
 
 Steeet Rail-ways, 361 
 
 Sec. 200. Liability to Assessment. 
 
 CHAPTER XIX. 
 Presumptions and Estoppels, .... 363 
 
 Sec. 205. Presumptions, in favor of validity of assess- 
 ments. 
 
 Sec. 206. Presumptions favor validity of assessments 
 made by three or more, where less than 
 all act. 
 
 Sec. 207. Presumptions will not be indulged where defect 
 is apparent. 
 
 Sec. 208. That assessments were apportioned according 
 to benefits. 
 
XIV CONTENTS. 
 
 Sec. 209. When assessments cannot be collaterally at- 
 tacked. 
 
 Sec. 210. Estoppels apply to local assessments — failure 
 to make objections at the proper time. 
 
 CHAPTER XX. 
 
 Mandatory and Dikectory, 36M 
 
 Sec. 220. Mandatory — taking the official oath, etc. 
 
 Sec. 221. Acts to" be done, whether directory or man- 
 datory. 
 
 Sec. 223. Separate headings and separate columns man- 
 datory. 
 
 Sec. 224. Assessment must be made within the time 
 required. — This requirement mandatory. — 
 Certificate to assessment roll. 
 
 Sec. 225. DoUarmarkmust be given, to represent money. 
 
 CHAPTER XXI. 
 
 Defective Assessments and Curative Acts, . 378 
 
 Sec. 230. Power of Legislature to legalize. 
 
 Sec. 231. "What omissions and defects may not be cured. 
 
 Sec. 232. "What omissions and defects may be cured. 
 
 Sec. 233. When curative acts take effect — after suit 
 
 brought and before judgment. 
 
 Sec. 234. Curative acts do not affect judgments. 
 
 Sec. 235. Curative acts, retrospective and prospective. 
 
 Sec. 236. Curative acts as applied to assessments. 
 
 CHAPTER XXII. 
 Due Process of Law — applied to taxation, . 399 
 
 Sec. 250. "Due process of law" and "law of the 
 land " synonymous terms ; meaning as to 
 " life and liberty" and as to taxation. 
 
 Sec. 251. " Due process of law" and " law of the land" 
 defined, as applied to the collection of taxes. 
 
 Sec. 252. When notice of the proceedings necessary. 
 
 Sec. 253. When notice of the assessment proceedings 
 not necessary. 
 
CONTEKTS. XV 
 
 CHAPTER XXIII. 
 Street Assessments, 415 
 
 Sec. 275. The character of street assessments. 
 
 Sec. 276. Obtaining jurisdiction — mode of proceeding. 
 
 Sec. 278. Jurisdiction — collateral attack for want of. 
 
 Sec. 279. Obtaining jurisdiction — petition and resolu- 
 tion. 
 
 Sec. 280. Obtaining jurisdiction — ascertaining whether 
 majority signed. 
 
 Sec. 281. Obtaining jurisdiction — right of petitioners — 
 resolution without petition. 
 
 Sec. 282. Obtaining jurisdiction — other acts necessary. 
 
 Sec. 283. Obtaining jurisdiction. — ^Work must be de- 
 scribed in positive terms. 
 
 Sec. 284. Obtaining jurisdiction — more tlian one im- 
 provement may be included and conti-acted 
 for. 
 
 Sec. 285. Obtaining jurisdiction — resolution must in- 
 clude all the work. 
 
 Sec. 286. Obtaining jurisdiction — work not covered by 
 I'esolution or notice — street does not in- 
 clude sidewalk — including unauthorized 
 items. 
 
 Sec. 287. Obtaining jurisdiction — publication of resolu- 
 tion or notice : proof of. 
 
 Sec. 288. Obtaining jurisdiction — publication of the 
 resolution of notice : what the record ought 
 to show. 
 
 Sec. 289. Obtaining jurisdiction — when jurisdiction at- 
 taches. 
 
 Sec. 290. Advertising for bids — describing the work — 
 competition in bidding. 
 
 Sec. 291. Completion of the contract — acceptance of the 
 work. 
 
 Sec. 291a. Equality and Uniformity as to property bene- 
 fited. 
 
 Sec. 292. Secret agreement with part of the landowners 
 — a fraud. 
 
 Sec. 293. All works embraced in the resolution — one 
 contract only — no portion can be omitted. 
 
 Sec. 294. Failure to do the work within the contract 
 time — extention of time — re-letting. 
 
XVI CO^'TENTd. 
 
 Sec. 295. The material and work must be that authorized 
 by statute or ordinance — patent processes. 
 
 Sec. 296. Street improvements — manner of incurring 
 the expense— rby contract or by day's work 
 — where discretion rests — notice must not 
 fix prices. 
 
 Sec. 297. District to be assessed must be defined — Com- 
 missioners to fix boundaries of same must 
 be disinterested. 
 
 Sec. 298. Street improvements — the worli — an entirety, 
 cannot be assessed for in detached parts. 
 
 Sec. 299. Assessments — must follow the provisions of 
 the statute — name of owner. 
 
 Sec. 300. Description of land and locality — judicial 
 notice. 
 
 Sec. 301. Excepting work already done constituting part 
 of improvements required. 
 
 Sec. 302. Cost of abstracts of title, advertising, and 
 engineering — attorneys' fees. 
 
 Sec. 303. — when limited to half the value of the prop- 
 erty for each improvement. 
 
 Sec. 304. Assessment, levied after work done, by au- 
 thority of subsequent legislation. 
 
 Sec. 305. Ke-assessments, by statutory authority. 
 
 Sec. 307. Mode of making the assessments. 
 
 Sec. 308. Assessments, whether to be local or general — 
 when discretionary — discretion not review- 
 able by the courts. 
 
 Sec. 509. Exercise of the discretion — presumption of 
 benefits. 
 
 Sec. 310. Street improvements — whether a personal or a 
 property liability, or both. 
 
 Sec. 311. Separate parcels must be separately assessed 
 — work done under abandoned contract. 
 
 Sec. 311a. When property not liable for a local improve- 
 ment. 
 
 Sec. 312. Equalization the exclusive remedy for griev- 
 ances. 
 
 Sec. 313. Equalization the exclusive remedy, except for 
 fraud. 
 
 Sec. 314. Error must be shown to have injured the com- 
 plaining party— surveyors' fees. 
 
CONTENTS. XVll 
 
 Sec. 315. Remedies against illegal assessments not in 
 equity — exceptions. 
 
 Sec. 316. Remedies against illegal assessments not in 
 equity — exceptions {continued) . 
 
 Sec. 317. Remedies against illegal assessments, when 
 relieved against in equity. 
 
 Sec. 318. Estoppel. 
 
 Sec. 319. Mandatory and Directory. 
 
 Sec. 320. Sewers — all property benefited assessable 
 tlierefor — surveyors' fees. 
 
 Sec. 321. Sewers — plans and maps of — when must pre- 
 cede letting a contract. 
 
 Sec. 322. Sewers can be laid at expense of property 
 owners only in a public street — manner of 
 assessment governed by statute. 
 
 Sec. 323. Free turnpike road assessments. 
 
 Sec. 324. Assessment Liens — priority of. 
 
 CHAPTER XXIV. 
 Drainage Assessments, 486 
 
 Sec. 330. Constitutionality of — public use. 
 ,Sec. 331. Rights and powers concerning. 
 
 Sec. 332. Validity of drainage company and swamp 
 land district assessments — description of 
 the work contemplated. 
 
 Sec. 333. Jurisdiction, acquired after recording a:rticles 
 of association. 
 
 Sec. 334. Surveys and estimates of costs and expenses 
 — right of way, etc. 
 
 Sec. 335. Description of land assessed— posting notice 
 of assessment — equalization. 
 
 Sec. 336. Defenses — how far limited. 
 
 Sec. 337. Defenses— not necessary to set out articles of 
 association — question of benefits may be 
 made an issue — description of lands claimed 
 to have been benefited. 
 
 Sec. 338. Trial by Jury. 
 
 Sec. 339. Defenses— right of waj'- how acquired— stat- 
 ute to be strictly pursued— delay in claim- 
 ing damages — when not a waiver — estoppel. 
 
 Sec. 340. Uniformitj' — all lands benefited must be as- 
 sessed. 
 
XVlll CONTEXTS. 
 
 CHAPTER XXV. 
 
 Swamp Land Districts in California, . . 501 
 Sec. 341. Organization of — petition and publication of. 
 Sec. 342. Petition — its requisites. 
 Sec. 343. Publication of the petition necessary, to give 
 
 jurisdiction — what constitutes a week. 
 Sec. 344. Hearing the petition — approval and recording. 
 Sec. 345. A swamp land district — a public corporation 
 
 — powers of. 
 Sec. 346. Forming a new district out of one already 
 
 organized. 
 Sec. 347. District, when organized, maj' make by-laws ; 
 
 elect a board of trustees to manage affairs. 
 Sec. 348. Qualification of petitioners and voters. 
 Sec. 349. What lands, with regard to deraignment of 
 
 title, may be included and assessed. 
 Sec. 350. Powers conferred, not unconstitutional. 
 Sec. 351. Swamp land district assessments — power of 
 
 Legislature over. 
 Sec. 352. Powers conferred are constitutional. 
 Sec. 353. Assessment to be made by the Commissioners 
 
 — must view the land. 
 Sec. 354 Assessments — Commissioners must jointly view 
 
 and assess. 
 Sec. 355. Assessment — cannot be impeached except for 
 
 fraud. 
 Sec. 356. Assessments — must be made under the law in 
 
 force at date of organization. 
 Sec. 357. All the land in the district must be assessed. 
 Sec. 358. Assessments, separate parcels to the same 
 
 owner may be included, should be separ- 
 ately listed and charged. 
 Sec. 359. Additional or "new" assessments for work 
 
 "done or to be done." 
 Sec. 360. Two assessments — enforcement of, in one 
 
 action. 
 Sec. 361. Orders for assessments not reviewable. 
 Sec. 362. Estoppel — as to all lands included. 
 
APPENDIX CON'TENTS. xix 
 
 CHAPTER XXVI. 
 
 Assessments by Private Coepouations, . . 525 
 
 Sec. 363. Assessment of corporation stock for corpora- 
 tion purposes — whetiier or not a personal 
 liability'. 
 
 Sec. 364. "Calls" and "Assessments." 
 
 Sec. 365. Assessments, after stock paid up. 
 
 Sec. 366. Assessments — who may make — power where 
 vested — conditions precedent. 
 
 Sec. 368. Assessments — when less than all the amount 
 of stock required is subscribed — subscribing 
 deficiency after levy. 
 
 Sec. 369. Assessments — power of Directors to levy. 
 
 Sec. 370. Obtaining Jurisdiction. 
 
 Sec. 371. Limitation on right to levy assessments. 
 
 APPENDIX CONTENTS. 
 
 Desckiption, 541 
 
 Sec. 380. Ordinary and reasonable certainty. 
 
 Equalization, 542 
 
 Sec. 381. Personal or other notice not required when 
 time of meeting fixed and session limited. 
 
 Equality and Uniforjiity, 544 
 
 Sec. 382. Providing for an appeal, to certain classes of 
 property only — classifying property — not a 
 discrimination — deductions, when provided 
 for in general taxation, cannot be denied 
 in municipal taxation. 
 
 Exemption from Taxation, 547 
 
 Sec. 383. Facts, constituting exemption, must be shown — 
 former adjudication — not available — non- 
 payment of survey fees to continue exemp- 
 tion. 
 
xx appendix contents. 
 
 Separate Parcels, ' . 548 
 
 Sec. 384. Presumption — where two or more parcels, 
 assessed as one. 
 
 Situs, 548 
 
 Sec. 385. Equitable doctrine of situs. 
 
 Sec. 386. "When property is and is not in transitu. 
 
 Valuation, 551 
 
 Sec. 387. Value at a private sale, and at a " quick sale." 
 
TABLE OF CASES CITED. 
 
 [The figures refer to the sections and the no' es hi the section.] 
 
 A. 
 
 Abbott V. Lindenbower n. 9, 60; 
 n. 2, 231 
 Adams v. Snow n. 2, 7 
 
 Adsit V. Lieb n. 5, 154 
 
 Albany v. Meekin n. 2, .39 
 
 Albany v. Powell n. 3, 45 
 
 Albany & Schenectady K. Co. 
 
 V. Osborn n. I, 142 
 
 Albany & West Stockbridge R. 
 K. Co. V. Town of Caanan 
 
 n. 1, 192 
 Alexandria Canal E. R. & Bridge 
 Co. V. District of Columbia 
 
 n. S, 50 
 Alger ». Inhabitants of Easton 
 
 n. 1, 23 
 Allen V. Armstrong n. 2, 231 
 
 Allen V. City of Chicago n. 3, 287 
 Amburg v. Rogers n. 2, 3, 80 
 
 Anderson v. Caldwell n. 1, 338 
 
 Anderson v. Rider n. 1, 2, 324 
 
 Andover & Medford T. Co. u. 
 
 Gould n. 3, .363 
 
 Andrews v. City of Chicago n. 5, 283; 
 n. 2, 287 
 Ankeny ». Multnoman County 
 
 n. 3ra, 172 
 
 Aug. & Ames. Cor. n. 1, 62; n. 1, 
 
 125; n. 7, 363 
 
 Appeal of N. B. & M. R. R. Co. n. 1, 
 
 n. 3, 200; n. 1, 208 
 
 Argo V. Bartliand n. 1, 278 
 
 Arnold v. Town of Middleton n. 5, 4 
 
 Astoru. Mayor n. 1, 206 
 
 Atlanta & North Carolina K. R. 
 
 Co. V. Comra'rs of Catarelt 
 
 County n. 5, 136; n, 6, 137, n. 1, 
 
 169 
 
 Atkinson v. Glinman n. 4, 111; n. 2, 
 
 113 
 Atkinson J). Hinman n. 2, 113 
 
 Atwell V. Zehiff n. 3, 335 
 
 Auer V. City of Dubuque n. 4, 252 
 Austin !). Holt n. 2, 33 
 
 Avery v. City of East Saginaw ii. 5«, 
 
 154 
 
 B. 
 
 Bachelor v. Bachelor 
 
 n. 2, 343 
 
 Bacon v. Callender n. 2, 233 
 
 Bailey v. Buel n. 1, 2, 23 
 
 Bailey e. Fisher n. 4. 13 
 
 Bailey v. McGuire n. 3, 168 
 
 Bailey Trustee v. Trustees of 
 Power Street M. E. Church n. 7, 
 363 
 Baker v. Allen n. 1, 23 
 
 Baldwin v. Hall n. 3, 46 
 
 Bannister v. The Grassy Fork 
 
 Ditching Association n. 2, 340 
 Bank v. City of Nashua n. 2, 3, 56 
 Bank of Augusta v. Augusta n, 1, 47 
 Bank of Augusta v. Earle n. 3, 42 
 Bank of Commonwealth v. May- 
 or n. "1, 194 
 Barber v. Farr, SherifC n. 3, 45 
 Barhyte v. Shepperd n. 3, 4, 20; n. 2, 
 23; n. 1,25 
 Barker v. Blake n. 1, 112 
 Bariiett v. Barnett n. 1, 233 
 Barstow v. Big Rapids n. 4, 67 
 Bass V. Fond du Lac Co. n. 4, 197 ; 
 n. 3, 197a 
 Bassett v. Wheeler n. 3, 38 
 Bate V. Sheets n. 2, 337, 
 Beady v. Valdez n. 1, 71 
 Bell V. Pierce n. 2, 23; n. 1, 37 
 Bergen County Savings Bank v. 
 
 Township of Union n. 4, 205 
 Bertram v. Detroit n. 1, 302 
 
 Beveridge v. Livingstone n. 3, 294 
 Bidleman v. Brooks n. 4, 113 
 
 Bidwell V. City of Pittsburgh n. 4, 
 
 319 
 Bidwell V. Coleman ii. 1, 60 
 
 Bingham v. Smith n. 1, 85 
 
 Bird V. Perkins n. 4, 225 
 
 Bishop V. Vose n. 3, 36 
 
 Bixler v. Sacramento County n. 1 
 
 362 
 
 Black. Com. n. 1, 188; n. 8, 251 
 
 Black. Tax T. 1, n. 1; n. 1, 8; n. 2, 
 
 8; n. 1, SO, n. 1, 86;n. 4, 250 
 
 Blair Town Lot and Land Co. v. 
 
 Scott n. 36, SO 
 
 Blakely v. Bestor n. 1, 86 
 
 Blaiichard v. Powers n. 6, 130 
 
 Blatner v. Davis n. 1, 71 
 
 Board of Commissioners of How- 
 ard County V. Armstrong n. 2, 25 
 (xxi) 
 
xxu 
 
 CASES CITED. 
 
 Boardman b. Beckwith n. 5, 232 
 Boardman b. Board of Supervi- 
 sors n. 1. 44; n. 3, 45 
 Bode V. Holtz n. 8, 61 
 Boeck B. Merriam n. 2, 220 
 Bogart B. Caster n. 2, 337 
 Bonsai b. Lebanon n. 7, 310 
 Borland b. City of Boston n. 6, 7, 8, 
 
 36 
 Boston Seamens' Friend Society 
 
 B. Boston n. 3, 170 
 
 Boswoi'th V. Danzien n. 1, 89 
 
 Bouv. Law. Die. n. 4, 2; n. 2, 36; 
 n. 1, 126, n. 1, 250 
 Bower b. O'Donnell n. 2, 82 
 
 Bowman b. Tbompson n. 1, 324 
 
 Brady b. Bartlett n. 1, 292 
 
 Brady v. Denver ii. 1, 252 
 
 Brady B. Dowden n. 2, 70 
 
 Brady b. King n. 1, 276; n. 4, 283, 
 n. 4, 353 
 Brady b. Page n. 3, 300 
 
 Brady B. Theritt n. 3, 11 
 
 Brewster v. Davenport n. 2, 308 
 
 Brewer Brick Co. v. Inhabitants 
 
 of Brewer n. 2, 168 
 
 Briggs B. Rochester n. 6, 38 
 
 Briggs B. Wardwell n.'3, 23, 25 
 
 British Com. Life Ins. Co. b. 
 
 Comiii'rs of Taxes n. 2, 49 
 
 Brown e. City of Denver ii. 1, 252 
 n. 3, 49 
 Brown b. State of Maryland n. 1, 41 
 Brum V. Murphy n. 3, 73 
 
 Buffalo City Cemetery b. City of 
 
 Buffalo n. 14, 169; n. 1, 176 
 Buff. & State L. K. K. Co. b. Su- 
 pervisors of Erie County n. 3, 20 
 Bulkley b. VVilliaiustown n. 2, 38 
 Burk V. Altschul n. 1, 302 
 
 Burk B. Badlum n. 1, 2, 133; n. 1, 
 
 134 
 B. & M. R. R. Co. B. Lancaster 
 
 County n. .3, 142; n. 1, 2, 16S 
 B. & M. R. R. Co. B. Saline Co. 
 
 n. 1, 168; 190, n. 1; n. 2, 224 
 B. & M. K. E. Co. B. Seward 
 
 County n. 2, 168 
 
 Burnett b. Sacramento n. 1, 350; n. 3, 
 
 351 
 Burr B. Wilcox n. 1, 199 
 
 Burroughs on Taxation n. a, 39 
 
 Burrows B. Smitli n. 7, 363 
 
 Butler V. Saginaw Co. n. 6, 334 
 
 Byram v. Detroit n. 3, 197 
 
 C, 
 
 Cairo & F. E. Co. v. Parks n. 7, 251 
 Calder b. Keegan n. 2. 197 
 
 California, Constitution of n. 3, 3; 
 n. 1,7; n. 2, 50; n. 2, 
 125; n. 2, 126; n. 4, 
 132; n. 8, 138; n. 1, 
 152; n. 1,3,153; n. 1, 
 
 California, Constitution of 154a; 
 n. 1, 162; n. 1, 167; 
 n. 1,187; n. 1,2. 230; 
 n. 4, 250; n. 1, 282; 
 n. 1, 290; n. 1, 304. 
 California, Session Laws of n. 7, 61; 
 n. 1,68; n. 1, 72;n. 3, 
 73;n. 2, 82; n. 4, 100; 
 n. 3, 106; n. 3, 230; 
 n. 1, 231: n. 1, 276; 
 11. 1, 2, 279; n. 3, 4, 
 282; n. 1, 287; n. 3, 
 310; n. 1,2,312: n. 3, 
 322; n. 2. 324; n. 3, 
 345; n. 1, 348; n. 1, 
 357. 
 Calking v. Baldwin n. 1, 336 
 
 Callender b. Patterson n. 1, 318 
 
 Cambridge v. Ciiunty Commis- 
 sioners of Middlesex 138, n. 4; 
 n. 1, 140 
 Cannon v. New Orleans n. 2, 41 
 Carlin b. Cavender ii. 4, 294; n. 11, 
 
 310 
 Carlile b. Pullman Palace Car 
 
 Co. n. 5, 49; n. 7, 55 
 
 Carleton v. Ashburtoii n. 3, 67 
 
 Carroll B. Safford n. 1, 104 
 
 C'ase of the State Freight Tax n. 3, 41 
 Cass V. Bellows n. 2, 343 
 
 Catlin B. Hall n. 1, 3, 45 
 
 Cauldwell b. Curry n. 2, 336 
 
 C. P. R. R. Co. B. Board of 
 
 Equalization u. 2, 132 
 
 C. P. It. R. Co. V. Placer County 
 
 n. 2o, 153 
 Central Turnpike Co. b. Valen- 
 tine n. 3, 366 
 Chafte B. Oliver n. 5, 197a 
 Chaine b. Wilson n. 2, .37 
 Challis B. Commissioners of 
 
 Atchison County n. 2, 220 
 
 Chamberlain b. Cleveland n. 2, 153; 
 
 n. 3, 275 
 
 Chambers b. Saterlee n. 1, 73; n. 1, 
 
 312 
 Champaign County b. Reed n. 1, 173 
 Charlestown v. County Commis- 
 sioners n. -2, 40 
 Chase v. The Arctic Ditclxeis n. 1, 335 
 Chicago B. People n. 2, 169 
 Chicago & Alton E. E. Co. v. 
 
 People ex rel. n. 4. 56 
 
 C. B. & Q. E. R. Co. B. Paddock 
 
 n. 2, 4; n. 4, 56; n. 1, 130; 
 n. 5, 131 
 Chinqny b. People n. 5, 82; n. 1, 208 
 Chi'ist's Church v. The County 
 
 of Philadelphia n. 8, 176 
 
 Cincinnati College v. The State 
 
 n. 1, 178 
 
 City B. Clemens n. 1, 298 
 
 City of Dubuque b. The Illinois 
 
 Central R. Co. n. 5, 43; n. 6, 
 
 47; n. 1, 49 
 
CASES CITED. 
 
 XXIU 
 
 City of Evansville v. Pfisterer 
 
 n. 1, 210 
 City of Halifax v. Kenny ii. 3, 42 
 City Hotel v. Dickinson n. 3, 363 
 City of Indianapolis v. Imbery 
 
 n. 5, 290 
 City of Lafayette v. Fowler n. 4, 294 
 City of Mempliis i;. Ensly n. 3, 133 
 City of New Orleans c. I'oydras 
 
 Orpl.ian Asylum n. 6, lti9 
 
 City of Oakland v. Whipple n. 4, 43 
 City of Rochester v. Town of 
 
 Rush n. 1, 177 
 
 City of St. Louis D. Eressler n. 11,310 
 City of Stocliton v. Creaner 
 
 n. 1, 276; n. 6, 282 
 City of Stockton v. Uahl 
 
 n. 1, 151; n. 2, 279 
 City of Stockton v. Dunham n. 2, 65 
 City of Stockton v. VVliitmore 
 
 n. 3, 2S9; n. 3a, 290 
 City of Utica v. Cliuichill n. 2, 135 
 City and County of San Francisco 
 
 V. Flood n. 7, 56; n. 2, 126; 
 
 n. 6, 167; n. 5, 120 
 City and County of San Francisco 
 
 i). Lux n. 4, 39; n. 4, 45 
 
 City and County of San Fran Cisco 
 
 V. Mackey n. 4, 56; n. 1, 132; 
 n. 3, 141 
 City and County of San Francisco 
 
 1). Mctrinn n. 1, 165 
 
 City and County of San Francisco 
 
 c. Phelan n. 1, 71 
 
 Clark V. Crane n. 1. 6; n. 5, 220 
 Clark V. Lincoln County n. 4, 197 
 Clark V. Norton n. 2, 7; n. 3, 8 
 
 Clemens v. Mayor of Baltimore 
 
 n. 6, 310 
 Cobb V. Lucas n.l, 60 
 
 Cochran v. Collins n. 1, 279 
 
 Colman ». Anderson n. 3, 23 
 
 Coleman v. Shattock n. 1, 82; 
 
 n. 1, 93 
 Collins V. Smith n. 5, 221 
 
 Commonwealtli v. Bird n. 8, 176 
 Commonwealth v. Dobbins n. 4, 45 
 Commonwealth v. Gloucester 
 
 Feriy Co. n. 4, 42 
 
 Commonwealth v. Hamilton M. 
 
 Co. n. 3, 133 
 
 Commonwealth v. The People's 
 
 Five Cent Savings Bank 
 
 n. 3, 131; n. 1, 185 
 Comstock V. Grand Rapids 
 
 n. 2, 48; n. 8, 55 
 Conway v. Swagger, n. 1, 318 
 
 Conger v. Douglierty n. 7, 60 
 
 Conlin v. Seaman n. 7, 60 
 
 Conley v. Chedic n. 4, 41 
 
 Constitution, U. S. n. 2, 41 
 
 Cook V. Slocum n. 1, 2, 309 
 
 Cooley Con. Lim. n. 7, 176; n. 3, 
 
 232; n. 2, 233; n. 1. 236; n. 1, 
 2, 250; n. 4,5, 251; n. 3, 330 
 
 Cooley on Taxa. n. 1, 4, 2; n. 2, 
 
 8; n. 2, 187; n. 2, 232; n. 1, 233; 
 
 n. 1, 236; n. 1, 2, 250; n. 4, 251; 
 
 n. 2, 252; n. 13, 310; n. 3, 330; 
 
 n. 8, 334 
 
 Coombs V. Etter n. 3; 333 
 
 Cornwall v. Todd n. 1, 39 
 
 Cooper V. Jackson n. 10, 61 
 
 Corey v. Gaynor n. 1, 318 
 
 Coi-ey V. Swagger n. 8, 332 
 
 Cottle V. Spitzer n. 18, 169 
 
 Covington City Nat. Bank v. 
 
 City of Covington ii. 5, 132 
 
 Crandall v. State of Nevada n. 2, 41 
 
 Crane o. Janesville n. 1, 2, 64; 
 
 ()2, n. o 
 
 Craw V. Village of Tolono 
 
 n. 1, 14; 310 
 
 Crawford v. Linn County n. 4, 185 
 
 Crawford v. Schmidt n. 5, 60; 
 
 n. 5, 62 
 
 Crawford v. The Prairie Creek 
 
 Ditching Association 
 
 n. 2, 5, 7, 332 
 Creigbton v. Manson n. 1, 279 
 
 Creighton v, Scott n. 7, 310 
 
 Crosby v. Lyon n. 3, 167 
 
 Crowell V. Merrill, n. 1, 324 
 
 Cruger v. Dougherty n. 7, 60; 
 
 n. 1, 220 
 Culbertson v. Floyd County n. 1, 38 
 Cuming ». Grand Rapids n. 1. 284; 
 n. i, 302 
 Ciimmings ». Natidnal Bank 
 
 n. 6, 186 
 Cunningham v. Mitchell n. 2, 196 
 Curtis K. Township of Richland 
 
 n. 1, 44 
 
 D. 
 
 Dallenger v. Rappello n. 2, 43 
 
 Dalton V. East Portland n. 3, 3; 
 n. 4, 154 
 Dalton V. Water Commissioners 
 
 ■ n. 1, 339 
 Daley v. Ah Goon n. 1, 71 
 
 Davenport v. The C. R. I. & P. 
 
 R. R. Co. n. 3, 154; n. 4, 167 
 
 Dartmouth College Case n. 1, 131 
 
 Davidson v. New Orleans 251 ; 
 
 n. 3, 343, App. n. 1, 381 
 
 Deady v. Townsend n. 2, 286 
 
 Dean v. Borchaenins n. 3, 197a 
 
 Dean v. Charlton n. 1, 197(1; 
 
 n. 2, 295 
 
 Dean ». Davis 34-5, n. 1, 4 
 
 Dean ». Dean n. 1, 4, 345 
 
 Dean v. Gleason 190, n. 1 
 
 Delewater v. The Sand Creek 
 
 Ditching Company n. 9, 334; 
 
 n. 1, 337 
 
 Dennis, Sheriff, v. Railroad 
 
 Company n. 16, 169 
 
 Denny v. Mattoon ii. 3, 231 
 
XXIV 
 
 CASES CITED. 
 
 Desmond v. Babbitt n. 9, 60 
 
 Detroit Young Men's llaciety v. 
 Mayor n. 1, 92; n. 3, 140; 
 
 n. 2, 178 
 Dickinson v. Billings n. 1, 23 
 
 Dickinson v. Reynolds, n. 7a, 60; 
 n. 2,61; n. 3,224 
 Dillon on Muni. Cor. n. 5, 345 
 
 Dingham v. City of Chicago 
 
 190, n. 1 
 
 District No. 110 v. Feck n. 2, 304; 
 
 n. 5, 353: n. 2, 358; n. 2, 3.o9; 
 
 n. 1, 361 
 Donnell v. Webster n. 4, 120 
 
 Dool ». Cassopolis n. 1, 252 
 
 Dorsey B. Maiilove n. 1, 21; n. 4, 41 
 Doster v. Sterling n. 2n, 111 
 
 Doty V. Gorham n. 2, 106 
 
 Douglas D. Dakin n. 3, 60 
 
 Douglas i). Donnerfield n. 1, 83 
 
 Dougherty v. Foley n. 6, 294 
 
 Dougherty v. Hitclicock n. 1, 293 
 Douglierty i-. Miller n. 1, 289 
 
 Doyle V. Austin n. o, 170 
 
 Dubuque v. Chicago D. & M. 
 
 E. Vo. n. 1, 51 
 
 Dukes V. Working n. 2, 334 
 
 Dunn's Appeal ii. 8, 38 
 
 Dundee M. T. & I. Co. r. Parrish 
 
 71. 6. 186 
 Dundee M. T. & I. Co. v. School 
 
 District No. 1 n. 7,44; ii. 1,45; 
 n. .5,47; n. 4, 185; n. 6, 186 
 Dundy i: Richardson County 
 
 n. 3, 154 
 Dunham v. City of Chicago 
 
 n. 1, 168 
 Dunning v. Calkins n. 2, 336 
 
 Dunleith & Dubuque Bridge 
 Co. V. County of Dubuque 
 
 n. 3, 50 
 Du Page County v. Jenks 
 
 u. 5, 13; n. 3, 137 
 Dwight I). Mayor &c. of Bos- 
 tun n. 4, 46 
 Dyer v. Barstow n. 1, 360 
 Dyer v. Chase n. 1, 4, 286 
 Dyer v. Heydenf eldt n. 1 , 276 
 Dyer v. Hudson n. 3, 384 
 Dyer b. Miller n. .1, 276 
 Dver V. Osborne n. 4, 46; u. 3. 132 
 Dyer v. Parrott n. 4, .300; n. 1, 312 
 
 E. 
 
 Eaton V. Lyman n. 5, 221 
 
 Egyptian Levee Co. v. Hardin n. 1, 
 350; n. 2, 3, 351 
 Ellzabethtown, &c. K. K. Co. v. 
 
 Trustees n. 10, 169 
 
 Elmer's N. J. Dig. n. 7, 310 
 
 Emery v. Reed n. 3, .322 
 
 Emery b. San Francisco Gas Co. n. 4, 
 
 282, n. 4, 283; n. 2,3, 284; 
 
 n. 1, 350 
 
 Eno B. Mayor n. 1, 317 
 
 Erie Railway Co. v. Pennsyl- 
 vania n. 4, 167 
 Etchinson Ditching Association 
 
 V. Hillis n. 2, 4, 334 
 
 Evans v. Jackson n. 10, 61 
 
 Evans v. Shafer n. 10, 02 
 
 Evans v. Sharp n. 2, 197 
 
 Evansville Bank v. Britton n. 2, ISO 
 Everhart v. Penn. & Ohio Kail- 
 way Co. n. 7, .363 
 Eversole b. Cook n. 2, 30 
 Exchange Bank of Columbus B. 
 Hines n. 3, 133; n. 1, 172; n. 2, 
 186 
 Ex parte Winser n. 1, 366 
 
 F. 
 
 Fagan v. City of Chicago n. 2, 308 
 Falkner «. Hirnt n. 1, 2, 120; n. 3, 
 
 126 
 Falkner v. Kent n. 1, 2, 120 
 
 Farnsworlh Co. v. Rand u. 1, 14: 
 n. 4, 62 
 Fayette v. Livermore n. 4, 38 
 
 F'elsenlhal v. Johnson n. 1, 4 
 
 Ferguson v. Smith n. 3, 60 
 
 Field on Corp. n. 1, 133 
 
 Fitield r. Martinette County n. 2, 220 
 First National Bank of St. Jo- 
 seph B. Tp. of St. Joseph n. 4, 
 ISO 
 First Presbyterian Church v. City 
 
 of Fort Wayne n. 2, 303 
 
 Fisher b. Conim'rs of Bush 
 
 County n. 3, 45 
 
 Flanders B. Town of Merrimack n. 4. 
 
 197 
 Foresman v. Byrnes n. 4, 44 
 
 Foster v. Comm'rs of Wood Co. n. 2, 
 
 323 
 Freedom v. County Commis- 
 sioners n. 2, 159 
 Freeman on Judgments ii. 3, 362 
 Freeman v. Kenny n. 1, 23 
 Freeman b. Weeks n. 3, 4, 339 
 French b. Wliite n. 1, 352 
 
 G. 
 
 Gage E. Evans n. 3, 137 
 
 Gage V. Rumsey n. 4, 82 
 
 Gallatin v. Alexander n. 5, 45 
 
 Gardner c. Hope Ins. Co. n. 7, 363 
 Gaston v. Merriam n. 4, 221 
 
 Gatch B. City of Des Moines n. 3, 4, 
 
 252 
 Gilkerson v. Scott n. 1, 340 
 
 Gilette v. City of Denver, n. 4, 322 
 Gilman v. Philadelphia n. 2, 41 
 
 Goldgart v. The People n. 4, 45 
 
 Goodale b. Fennell n. 2, 281 
 
OASES CITED. 
 
 XXV 
 
 Goodrich D. Minork, a. 3, 320 
 
 Gordon Ex'rs v. Baltimore n. 1, 56 
 Goshen & Minisink Tjirnpike 
 
 Eoad V. Hurtin n. 6, 363 
 
 Graham v. First Nat. Bank of 
 
 Norfolk n. 3, 45 
 
 Greene v. Lunt n. 1, 85 
 
 Greenl. Ev. n. 1, 14 
 
 Grimm v. O'Coniiell n. 1, 71 
 
 jriswold 1). Bay City n. 5a, 154 
 
 Griswold b. Peltoii n. 4, 303 
 
 Griswold College v. City of Dav- 
 enport " ' n. 3, 4, 252 
 Grotefend v. TJltz n. 1, 71 
 Guest V. Brooklyn n. 1, 194 
 Guest V. The City of Brooklyn 315, 
 n. 2, 3, 4 
 Guild, Jr. V. City of Chicago n. 1, 308 
 
 H. 
 
 Hagar v. Board of Supervisors n. 2, 
 
 359 
 Hagar v. Reclamation District 
 No. 108 n. 6, 195, 251; n. 3, 341; 
 n. 1, 849; (app.) 3S1 
 Hagar v. Supervisors of Yolo 
 County n. 7, 250; n. 3, 330; n. 2, 
 339; n. 1, .342; 344, n. 2, 
 3; n. 3, 348; n. 1, 349; 
 n. 1,350; n. a, 351; n. 1. 
 351; n. 2, 351, n. 2, 352; 
 n. 2, 362; n. 3, 330; n. 2, 
 339 
 Hale & Norcross S. M. Co. v. 
 Storey County n. 4, 100; n. 1, 
 101 
 Hallo V. Helmer n. 2, 220 
 
 Halstead v. Adams n. 3, 42 
 
 Hamilton v. Dempsey n. 2, 154 
 
 Hamilton v. Fond du Lac n. 2, 63 
 Hamilton County v. Massachu- 
 setts n. 1, 133 
 Hannah, Administrator v. Col- 
 lins n. 2, 86 
 -Hannel v. Smith, n. 1, 85 
 Harding v. Kidd n. 1, 25 
 Harper v. Howe n. 4, 112 
 Hare v. Carnall n. 5, 197 a 
 Harney v. Heller n. 4, 282 
 Harvard College v. Boston n. 5, 176 
 Harvard College v. Gore n. 4, 35 
 Hassan v. City of Kochester n. 1, 170 
 Hawthorne v. Calef n. 7, 263 
 Hayden v. Foster n. 1, 85; n. 2, 111; 
 n. 3, 113; n. 1, 141 
 Hays V. The Pacific M. S. Co. 
 
 n. 2, 42 
 Hearst v. Egglestone n. 4, 70; 
 
 n. 1, 71 
 HendrickB. Crowley n. 1, 279 
 
 Hendrie v. Kalthoff n. 2, 173 
 
 Henry v, Cliester n. 3, 138 
 
 Herrjck v. Big Eapids n. 4, 07 
 
 Hersey v. Barron County n. 5, 1.36 
 
 n. 3, 186 
 Hersey v. Mflwaukie n. 1, 2, 168 
 190, n. 1, S 
 Hewes v. Kees n. 2, 69; n. 2, 72 
 n. 1, 73; n. 2, 94 
 Hewitt V. New York, &c., K. R. 
 
 Co. n. 3, 176 
 
 Hey wood v. Buffalo n. 1, 194; 
 
 n. 4, 315 
 Hickman v. Kempner n. 5, 197 a; 
 
 n. 7, 251 
 High V. Shoemaker n. 2, 82 ; 
 
 n. 3, 167 
 Hill V. Higdon n. 7, 310 
 
 Himmelman i'. Danes n. 1, 299 
 
 Himmelman v. McCreery n. 4, 283 
 Himmelman v. Oliver n. 6, ,294 
 
 Himmelman v. Satterlee n. 1, 285; 
 
 n. 3, 286 
 
 Himmelman v. Steiner n. 1. 2, 65; 
 
 n. 2, 69; n. 1, 2, 72 
 
 Hobart ». Detroit ii. 1, 197 a; 
 
 n. 2, 294 
 Hodgdon v. Burleigh n. 4, 80 
 
 Holland v. Mayor, &c., of Balti- 
 more n. 4, 315 
 Holly Springs Sav. & Ins. Co. v. 
 
 Supervisors n. 4, 172; n. 2, 174 
 Houghton V. Burnham n. 5, 195 
 Howell 1). Buffalo n. 1, 2, 304 
 
 Howell !). Cassopolis n 1, 57 
 
 Howland v. Edmonds n. 2, 135 
 
 Hoyt ». City of Saginaw n. 4, 220 
 Hoyt B. Corandiss loners of Taxes 
 
 II. 2, 43; n. 1, 44; n. 3, 45 
 Hubbard b. Garfield n. 1, 197 
 
 Hubbard b. Wiiisor n. 4, 63 
 
 Hudson R. B. Co. v. Patterson 
 
 n. 1, 51 
 Hume B. Little Flat Rock Drain. 
 
 Asso. n. 2, 278 
 
 Hume V. Wainscott n. 10, 60 
 
 Humphrey B. Fergus n. 2, 175 
 
 Humphries B. Little Sisters of 
 
 the Poor n. 7, 169 
 
 Hunt V. Curry u. 5, 197 a 
 
 Hunt B. Easterday n. 2, 220 
 
 Huntington b. Palmer n. 6, 186 
 
 Uurley b. Texas n. 4, 40 
 
 Hutchinson b. Oskaloosa 156, n. 3 
 
 I. 
 
 111. Central R. R. Co. v. Irvin 
 
 n. 3, 169 
 Illinois, Rev. Act, 1872 n. 3, 142 
 Immegart v. Gorgas n. 36, 80 
 
 Indiana, Constitution of n. 6, 167 
 Indiana, Session Acts of n. 1, 332; 
 n. 1, 334; n. 1, .336; n. 2, 337 
 Ingle B. Bosworth n. 4, 168; n. 1, 198 
 luliabitants, &c. B. Fiske et al. 
 
 n. 5,24 
 
XXVI 
 
 CASES CITED. 
 
 Inhabitants of Chicopee v. 
 
 Hampton n. 3, 133 
 
 Inhabitants of Newburyport v. 
 
 County Commissioners n. 2, 4 
 Insurance Co. v. County Com- 
 missioners n. 13, 169 
 In re Anderson n. 1, 206 
 In re Auchmuty n. 5, 138; n. 1, 285 
 In re Blodget n. 2, 296; n. 1, 321 
 In re Brady n. 1, 205 
 In re Burlc ii. 4, 195 
 In re Cram p. 3, 303 
 In re Cruger n. 2, 138 
 In re Eager n. 1, 138 
 In re Emigrant Industrial Sav- 
 ings Banls n. 1, 296 
 In re Hebrew B. O. Society 
 
 n. 2, 3, 205 
 In re Ingram n. 2, 206 
 
 In re Lowden n. 1, 302; n. 1, 314 
 III re Marsh n. 2, 290 
 
 In re Mayor of New Yorlc n. 3, 170 
 In re Meniam n. 1, 206; n. 6, 286; 
 n. 2, 290; n. 1, 296; 
 n. 1, 314; n. 4, 320 
 In re N. Y. Prot. Episcopal Pub. 
 
 School n. 6, 138; 291 a 
 
 In re Nicholas n. 5, 38 
 
 In re Pelton n. 1, 314 
 
 In re Phillips n. 3, 195 
 
 In re Prot. Epis. Pub. School 
 
 n. 1, 207; n. 1, 291 a 
 
 In re Rhinelander n. 1, 322 
 
 In re Sackett and others n. 1, 301 
 
 In re St. .Joseph Asylum n. 3, 303 
 
 In re South M. C. M. Co. n. 4, 365 
 
 In re Walter n. 1, 2, 195; n. 1. 302 
 
 In re Weil n. 2, 296 
 
 In Matter of Van Antwei-p n. 3, 197a 
 
 In the Matter of Sharp (see 
 
 " Matter of," for cognate 
 
 cases) n. 2, 318 
 
 Ireland v. Palestine n. 1, 364 
 
 Irvin V. New Orleans & St. Louis, 
 
 &c., B. E. Co. n. 2, 30; 
 
 n. 3, 4, 42 
 
 Jamison v. Hapgood i 
 
 Janesville v. Markoe i 
 
 Jennings v. Collins n 
 
 Johnson v. Milwaukie n 
 
 Johnson b. Oregon ] 
 
 Jones ». Seward County n 
 
 Judd V. Anderson & Goe n 
 
 . 4,35 
 . 5,80 
 3, 111 
 3, ,275 
 . 3,39 
 2, 174 
 36,80 
 
 Kaehler ». Dofberpulil n. 2, 220 
 
 Kansas Pacific Railway Co. c. 
 
 Wyandotte Co. n. 4, 131 
 
 Keane v. Cannovan n. 1, 80 
 
 Kelsey v. Abbott n. 1, 68; n. 1, 71 ; 
 
 n. 2, 104 
 Kemper ». King n. 4, 141; n. 6. 294; 
 
 n. 2, 311 
 Kennebec, &c. E. E. Co. c. Ken- 
 dall n. 2, 363 
 Kent. Com. n. 1, 106; n. 3, 250 
 Kiley v. Cranor u. 2, 298 
 King V. City of Portland n. 6, 1 ; 
 
 n. 1, 275 
 King V. Gwynn n. 2, 1.30 
 
 Kingsley v. Supervisors n. 4, 197 
 Kinkaid v. Howe n. 1, 60 
 
 Kirtland ». Hotcbkiss n. 5, 44; 
 
 n. 6, 44 
 Kneeland v. Milwaukie n. 5, 282; 
 
 n. 4, 290 
 Krutz V. Chandler n. 4. 197a 
 
 L. 
 
 Lachman v. Clark n. 2, 82 
 
 Lagrange v. The Keen Creek 
 
 Drain. Co. n. 1, 336 
 
 Lafferts v. Calumet County n. 2, 191 
 
 Lafferty"s Lessees v. Byers n. 3, 83; 
 
 n. 1,84 
 
 Lafayette v. Fowler n. 1, 210 
 
 Lafayette Ins. Co. ». French n. 3, 42 
 
 Lake County v. Sulphur Bank 
 
 Mining Co. n. 9, 61 ; n. 2, 73; 
 
 n. 3, 94; n. 1, 96; n. 1, 114 
 
 Lake County v. Sulphur Bank, 
 
 Q. S. M. Co. n. 1, 114; n. 4, 225 
 Lamb v. Farrell n. 5, 197(i 
 
 Lane v. Bommelman n. 1, 225 
 
 liane v. Succession of March n. 4, 62 
 Lanesborough ». Berkshire Co. 
 
 Commissioners n. 3, 40 
 
 Large r. The Keen Creek Drain. 
 
 Co. n. 3, 334; n. 2, 336; n. 1, 3.!i7 
 Law V. The People n. 2a, 84; nl, 86 
 Lawrence v. Fast n. 1, 225 
 
 Lee V. The Citv of Boston n. 2, 35; 
 n. 4, 36 
 Lefferts v. Calumet County 190, n. 2; 
 n. 2, 192 
 Lefevre ». Mayor of Detroit n. 7, 310 
 Lemon v. Mayor n. ], 316 
 
 Lervey's Island E. E. Co. v. Bol- 
 ton n. 2, 366 
 Levee District v. Huber n. 2, 357 
 Lewis V. County of Chester n. 3, 45 
 Libby v. Burnham n. 1, 19'7 
 Lim Sing v. Washburn n. 3, 187 
 Lionburgeru. House ii. 2, 55; n. 3, l;i5 
 Lincoln v. Hapgood ii. 3, 23 
 Lockwood V. Johnson n. 3, 06 
 Longfellow v. Quimby n. 26, HI 
 Lorfngu. Bacon n. ], 91; n. 2, 140 
 Loud V. Cliarlestowii n. ], 40 
 Louisville v. Slierley n. 6, 39; n. 5, 45 
 Lovell V. City of St. Paul n. 7, 3io 
 Lowell V. Commissioners n. 4, 5 
 
CASES CITED. 
 
 XXVJl 
 
 Lowell V. French n. 7, 310 
 
 Lowell V. Street Commissioners 
 
 of Boston n. 5, 126 
 
 Lyle V. Jacques n. 1, 61 
 
 Lyman »). Anderson n. 4, 73; n. 3a, 
 
 82;n. 1,220 
 
 Lyman v. Fiske n. 1, 23; n. 3, 35 
 
 M. 
 
 Mabee v. Diain Commissioners 
 
 and otliers n. 2, 339 
 
 Macon ». Central E. E. Co. n. 13, 169 
 Maltby v. The Beading & Colum- 
 bia E. E. Co. ' n. 3, 46 
 Malter v. Campbell n. 6, 172 
 Manning v. Kleppel n. 6, 1 
 Ma;nsen v. Minor n. 2, 13 
 Mappa V. Los Angeles n. 1, 294 
 Marietta, «fec. E. E. Co. v. El- 
 liott n. 7, 363 
 Marlborough v. Hebron n. 5, 38 
 Marsh v. Brooklyn n. 1, 194 
 Marshall D. Benson n. 3o, 1.53; ii. 2,' 
 220; n. 6, 220 
 Martin v. Cole n. 1, 113; n. 2, 113; 
 11. 3, 113 
 Martin v. Mansfield n. 3, 69 
 Massachusetts, Constitution of n. 7, 
 
 36 
 Massing v. Ames n. 3, 63; n. 2, 320 
 Matter of Application of N. Y. 
 
 C. & H. E. E. Co. n. 1, 87 
 
 Matter of Lands in Town of 
 
 Flatbush n. 3, 197)i 
 
 Matter of Mahone n. 1, 290 
 
 Matter of Manhattan Indus. In- 
 stitution n. 1, 296 
 Matter of Petition of BloJget n. 2, 
 
 296 
 Matterof Petition of Eager etal. n. 1, 
 
 290 
 Matter of Second Av. Church n. 2, 
 
 303 
 Matter of Sharp n. 2, 318 
 
 Matter of Van Antwerp ii. .3, 197a 
 May V. Holdridge n. 2, 197; n. 1, 
 
 197a 
 Mayo V. Ah Loy n. 2, 299 
 
 Mayo V. Foley n. 1, 209; n. 2, 318 
 Mayor, &c. of Baltimore v. 
 
 Horn, n. 3, 231 
 
 Mayor, &c. of Baltimore v. Por- 
 ter n. 2. 318 
 Mayor of Mobile v. Baldwin n. 3, 30 
 Mayor of New York v. Colgate n. 1, 
 
 310 
 McBean i). Chandler n. 2, 275 
 
 McCall V. Loriiuer n. 4, 23J 
 
 MeCandlass d. Carlisle n. b, 52 
 
 McCoy V. Amlerson n. 1, 40 
 
 McCnllough V. The State of Ma- 
 ryland n. 1, 55 
 McDougal V. Brazil u. 4, 40 
 
 McDonald v. Patterson n. 2, 282 
 McFadden v. Goff n. 1, 324 
 
 Mclntyre v. The McLain D. A. n. 1, 
 
 333 
 McNisb V. Perrine n. 2, 220 
 
 McVerry v. Kid well n. 2, 291 
 
 Meadow Dam Co. v. Gray n. 7, 363 
 Meek v. McClure n. 2, 14 
 
 Menser v. Eisden n. 5, 294 
 
 Merriam v. Hemple n. 5, 197o 
 
 Merrick v. Hutt n. 5, 61 
 
 MeiTiek v. La Cross n. 5, 282 
 
 Merrill v. Abbott n. 4, 282; n. 7, 282, 
 n. 6, 283 
 Merrill v. Humphrey n. 2, 137; n. 3, 
 
 192 
 Merrltt v. Portchester n. 4, 101; n. 1, 
 
 220 
 Middlesex Turnpike v. Swan n. 7, 
 
 363 
 MIddletown Ferry Co. b. Town 
 
 of Middleton n. 4, 42; n. 2, 47 
 Miller u.' Hale n. 4, -230 
 
 Miller V. United States n. 6, 44 
 
 Milligan b. Smith n. a, 342 
 
 Milligan v. The State n. 9, 332 
 
 Millikin v. Eeeves n. 7, 60 
 
 Mills B. Charlton n. 2, 197; n. 1, 197a; 
 11. 2, 197a; n. 3a, 197a, n. 1, 
 1976; n. 5, 286 
 Milwaukie Iron Co. v. Schubel n. 2, 
 1.58;n. 2, 163 
 Miner b. Pingi-ee n. 1, 67 
 
 Misner v. White n. 1, 233 
 
 Mitchell B. Commissioners n. 2, 174 
 Mitchell B. Plover n. 4, 40 
 
 Mi.x B. Moss n. 8, 310 
 
 Moale B. Mayor of Baltimore n. 2, 
 
 350 
 Mobile, &c. E. E. Co. B. Mosely. n. 4, 
 
 169 
 Moffit B. The Midsker Draining 
 
 Assso. n. 1, 3.36 
 
 Monroe b. Douglas n. 4, 35 
 
 Monroe b. Town of Canaan n. 5, 120 
 Monroe Savings Bank b. The * 
 
 City of Eochester n. 1, 133 
 
 Montgomery Avenue Case n. 2, 297 
 Monticello Seminary b. The 
 
 People II. 4, 178 
 
 Moore b. Croft n. 2, 342 
 
 Morgan b. Louisiana n. 1, 17.5 
 
 Morgan b. Parkham n. 4, 42 
 
 Morrill b. Taylor n. 1, 120 
 
 Morrison v. Larkin n. 2, 170 
 
 Moser b. Wliite n. 1, 234 
 
 Moss B. Cunimings n. 1, 3, ]9li 
 
 Moss B. Shear n. 2, 33; n. 2, 69 
 
 Movers b. Smedley n. 1, 315 
 
 Mullen B. Commissioners n. 18, 169 
 Mulliken v. Bloomington ii. 1, 278 
 Mumford v. Sewell n. S, 44 
 
 Munroe b. Douglas n. 4, 35 
 
 Murry's Lessees b. Hoboken Land 
 and Improvement Co, n. 2, 351 
 
XXVIU 
 
 CASES CITED. 
 
 Musselman v. Logansport n. 4, 232 
 
 Mygatt V. Washburn n. 1, 22 
 
 n. 1, 2, 23; n. 2, 35 
 
 Myrick v. La Cross n. 5, 282 
 
 Nason v. Eicker n. 1, 85; n. 2, 111 
 National Bank v. Kimball n. 6, 186 
 National Bank o£ Chemung v. 
 
 Elmira n. 2. 21 
 
 Neeman v. Smith n. 10, 310 
 
 Nelson v. Roundtree n. 2, 231 
 
 n. 1, 235 
 
 Nevada, Session Laws of 1861 
 
 n. 1, 70 
 Nevins, &c., Draining Co. v. Alkire 
 
 a. 2, 340 
 New Brunswiclv Eubber Co. v. 
 Commissioners 
 
 n. 1, 297; n. 2, 339 
 New England Hospital v. Boston 
 
 n. 1, 179 
 New Orleans v. Louisiana Sav. 
 
 Bank n. 5, 131 
 
 New Orleans v. Russ n. 5, 169 
 
 New York Rev. Stat. n. 1, 81 
 
 Newport Mechanics Man. Co. 
 
 V. Spirbird n. 1, 62 
 
 Nicholas v. Bridgeport n. 7, 310 
 
 Nicholson Pavement Co. v. Fay 
 
 n. 2, 295 
 Nicholson Pavement Co. v. 
 
 Painter n. 2, 295 
 
 Noble V. Indianapolis n. 7, 60 
 
 Nolera V. Reese n. 1, 292 
 
 Norfleet v. Cromwell n. 1, 352 
 
 North Ward Nat. Bank v. Newark 
 
 n. 5, 132 
 Northern Pacific E. E. Co. v. 
 Carland 
 
 n. 2, 141; n. 5, 167; n. 1, 173 
 Norton v. Courtney n. 2, 300 
 
 O. 
 
 Oakham v. Hall n. 1, 198 
 
 Oakland Paving Co. v. Eier 
 
 n. 3b, 290 
 O'Brien v. Commissioners of 
 Baltimore County 
 
 n. 2, 197; n. 6, 230 
 Ogden V. Satmders n. 3, 46 
 
 O' Grady B. Bernhisel 
 
 n. 3, 61; n. 2, 3, 67; n. 1, 68; 
 
 n. 1, 71; n. 3, 73 
 
 O'Donohue v. Hendrix n. 4, 111 
 
 Ohio, Constitution of n. 3, 133; 
 
 n. 1, 172; n. 3, 275 
 
 Oldtown & Lincoln E. E. Co. 
 
 V. Veazie n. 3, 366 
 
 Oliver o. Memphis, &c., E. R. 
 Co. n. 9, 169; n. 3, 176 
 
 O'Niel V. The Virginia & Mary- 
 land Bridge Co. n. 2, 62 
 Opinions of the Judges n. 2, 1 
 Ontario Bank v. Bunnell n. 1, 47 
 Oregon General Laws n. 4, 24; 
 n. 5, 56; n. 1, 70; n. 5, 130; 
 n. 6, 186; n. 2, 324 
 Oregon Session Laws n. 3, 7, 44; 
 n. 4, 324 
 O'Reilly v. Kankakee Valley 
 
 Draining Co. n. 1, 2, 330; 
 
 n. 6, 332 
 Orena v. Sherman n. 1, 159 
 
 Orono V. Veasy n. 1, 94 
 
 Orton V. Noonen n. 1, 236 
 
 Osborne v. The Bank of the 
 
 United States n. 1, 55 
 
 Oswego Starch Factory v. Dol- 
 
 loway n. 1, 9; n. 1, 48; 
 
 n. 1, 2, 135 
 
 Overing n. Foote n. 2, 252 
 
 OwensD. Heydenfeldt n. 3, 294 
 
 Pacific Bridge Co. v. Kirkham 
 
 n. 7, 334 
 Pacific Hotel v. Lieb n. 2, 137 
 
 Pacific Mail Steamship Co. v. 
 Commissioners of Taxes 
 
 n. 3, 130 
 Pacific E. E. Co. v. County Clerk 
 
 n. 1, 157 
 Palmer v. Stulp n. 1, 210; n. 1, 330 
 Parish!). Golden n. 4, 205; n. 2, 221 
 Passenger Cases n. 2, 41 
 
 Pal ten v. Green n. 1, 1.54 
 
 Peckham v. Newark n. 1, 807 
 
 Pelham v. Rose n. 6, 44 
 
 Pelham v. Way ii. 6, 44 
 
 Pelton V. Northern Transporta- 
 tion Co. n. S, 47 
 Pennsylvania v. Eavenel n 66, 38 
 Pennsylvania Coal Co. v. Perth 
 
 n. 1, 7. 
 Pennsylvania R, R. Co. v. Luthern 
 
 Congregation n. 1, 3-38 
 
 People V. Ahearn ii. 3, 354 
 
 Peoples. Ashbury n. 1, 152 
 
 People V. Assessors n. 3a, 172 
 
 People V. Atkinson (see "The' 
 
 People") n. 2, 40 
 
 People V. Black Diamond Coal 
 
 M. Co. n. 2, 126; n. 3, 167 
 
 People ». Chambers n. 5, 366 
 
 People V. Clark n. 2, 283 
 
 People V. Coghill n. 1, .354 
 
 People V. (Uoleman n. 2, 3, 107 
 
 People V. Collins n. 1, 60 
 
 People V. Comm'rs of Taxes n. 4, 
 131; n. 2. 13.-) 
 People V. Cone n. 1, 80; n. 1, 81 
 People u. Crockett n. 3, 82; n. 4, 136; 
 n. 2, 139 
 
CASES CITED. 
 
 XXIX 
 
 People V. Culverwell n. 4, 106; ii. 3, 
 
 111 
 People ». Dolan n. 2, 172 
 
 People B. Dunn n. 3, 153 
 
 People V. Eastman u. 4, 39; n. 6, 
 39; n. 4, 45 
 People V. Eddy n. 2, 126 
 
 People V. Empire G. & S. M. 
 
 Co. n. 2, 225 
 
 People V. Ferguson n. 2, 135 
 
 People V. Flint n. 1, 155 
 
 People V. Fredericks n. 5, 130; n. 2, 
 
 142 
 
 People V. Gardner n. 3, 45 
 
 People V. Gerke n. 2, 121; n. 2, 126 
 
 People V. Goldman n. 3, 343 
 
 People V. Goldtree n. 1, 156; n. 1, 
 
 158; n. 1, 231 
 
 People II. Hagar n. 1, 336; n. 2a, 343; 
 
 n. 3, 343; 344, n. 2;n. 2, 
 
 348; n. 1, 349; n. 1, 353; 
 
 n. 2, 4, 354; n. 1, 2,355; 
 
 n. 2, 358; n. 1, 360; n. 1, 
 
 3,362 
 
 People V. Haggin n. 2, 343 
 
 Peoples. Halliday n. 4, 39; n. 2, 191 ; 
 
 n. 3, 230 
 
 People V. Hancock n. 3, 112 
 
 People V. Hastings n. 2, 3; n. 1, 10; 
 
 n. 3, 230 
 
 People V. Hibernia Bank n. 2, 125 ; 
 
 * n. 2, 126; n. 1, 152 
 
 People V. HoUister n. 3, 141 
 
 People V. Home Ins. Co. n. 4, 39 ; 
 
 n. 7, 61;n. 3, 120 
 
 People V. Houston u. 2, 352 
 
 People V. Hyde n. 1, 81 
 
 People V. Kelsey n. 1, 10 
 
 People V. Ladd n. 2, 283 
 
 People B. Leet n. 2, 82; n. 2, 107 
 
 People V. Lynch n. 2, 345; n. 3, 353 
 
 People V. Mahoney n. 1, 3, 80 
 
 People B. Mayor of Brooklyn n. 1, 
 
 350; n. 2, 351 
 
 People B. McCain n. 1, 233 
 
 People B. McCreery n. 5, 120; n. 2, 3, 
 
 126; n. 3, 167; n. 3,225' 
 
 People B. Mitchell n. 6, 230 
 
 People V. Moore n. 3, 2; n. 1, 2, 8; 
 
 n. 3. 6, 55 ; n. 4, 111 ; 
 
 n.2a, 126; n. 2,141; n. 3, 
 
 221; u. 1, 223;n. 1,233 
 
 People B. Morse n. 3, 111 
 
 People V. MuUioney n. 1, 80 
 
 People B. Niles n. 6a, 38; n. 4, 39; 
 
 u. 3, 4, 43 
 
 People V. Ogdenshurgh n. 1, 43 
 
 People B. CNeil n. 1, 233 
 
 People B. Owyhee Lumbering 
 
 Company n. 4, 225 
 
 People B. Owyhee Mining Co. n. 1, 
 
 8; n. 3, 101; n. 3, 107; 
 
 n. 3, 111; n. 1, 2, 121; 
 
 n. 1, 2, 124; n. 1, 127; 
 
 People V. Owyhee Mining Co. n. 2, 
 130; n. 4, 22 j 
 People V. Park n. 4, 39; n. 2, i4 
 People B. Pico n. 3, 230 
 
 People V. Pittsburgh Eailroad 
 
 Company n. 6o, 4 
 
 People B. P. & S. V. K. K. Co. n. 1, 
 
 10 
 People B. Rains n. 1, 107 
 
 People B. Reclamation District 
 
 No. 108 n. 1, 344; n. 1. 345 
 
 People B. Reynolds n. 1, 152; n. 1, 
 
 154 
 People B. Roper, n. 3, 172 
 
 People B. Ross n. 3, 5 
 
 People B. Ryan n. 4, 172; n. 2, 174 
 People ». Salomon n. 2, 152 
 
 People B. S. F. Savings Union n. 3, 
 
 230 
 
 People B. Sargeant n. 1, 10 
 
 People B. Shearer n. 4, 100; n. 1, 127; 
 
 n. 1, 139 
 
 People B. Shimmins n. 2; 112 
 
 People B. Sierra B. Q. M. Co. ii. 9, 
 
 61;n. 2, 62;u. 3, 141 
 
 People B. Sneath n. 5, 120 
 
 People V. Sneath & Arnold n. 5, 63; 
 
 n. 3, 126 
 
 People V. Stahl n. 1, 86 
 
 People 0. Supervisors Chenango 
 
 County n. 1, 2, 23 
 
 People B. Townsend n. 1, 187 
 
 People V. Trustees of Ogdens- 
 hurgh n. 3, 45 , 
 People B. Wassoh n. 4, 337 
 People B. Weaver n. 2, 186 
 People B. Whartenby u. 4, 39 
 People B. Whipple n. 4, 60 
 People B. Whyler n. 3, 1; n. 3, 185 
 People V. Wilkerson n. 1, 31 
 People V. Assessors of Brooklyn n. 7, 
 
 176 
 People ex rel. b. Barker h. 1, 136; 
 n. 2, 142 
 People ex rel. Trowbridge v. 
 
 Commr's of Taxes n. 3, 45 
 
 People ex rel. Kilmer b. McDon- 
 ald n. 1, 233 
 People ex rel. v. Comm'rs of 
 
 Taxes n. 1, 171 
 
 People ex rel. v. McLean ii. 4, 49; 
 
 n. 1, 52 
 
 People ex rel. v. McDonald n, 1, 233 
 
 People ex rel. Jefferson b. Smith 
 
 n. 3, 45 
 People ex rel. «. Roper n. 7, 176 
 People ex rel. v. Supervisors of 
 
 Sanilac County n. 1, 158 
 
 Perkins v. Dibble n. 2, 83 
 
 Pervine b. Jacobs n. 7, 126 
 
 Perry b. Washburne n. 1, 2, 1 
 
 Petition of Upson n. 7, 138 
 
 Pettit B. Black n. 5, 197a 
 
 Plummer b. Supervisors n. 5, 186 
 
XXX 
 
 CASES CITED. 
 
 Political Code of California n. 2, 6; 
 n. 8, 44; n. 2, 50; n. a, 52; 
 n. 2,7,56: n. 5, 60; n. 1, 
 9, 61 ; n. i, 62 ; n. 2, 66; 
 n. 1,70; n. 1,71; n. 1.96; 
 n. 2, 125: n. 4, 126; n. 5, 
 130 ; n. 4, 132 ; n. 1, 133 ; 
 n. 1, 134 ; n. 1, 2, 136 ; 
 n. 8, 138 ; ii. 3, 142 ; n. 1, 
 152 ; H. 1, 162 ; n. 1. 2, 
 .341 ; n. 1, 343 ; n. 3, 344 ; 
 347, n. 1, 2, 3 ; 353, n. a, 
 1. 2 ; n. 1, 358 ; n. 1, 359 
 Pond V. Vegus n. 1, 197 
 
 I'oppleton V. Yamliill County ii. 2, 45 
 Porter v. County Comin'rs of 
 
 Norfolk n. 4, 4; n. 3, 5 
 
 Porter v. Rockford n. 3, 154 
 
 Porter v. E. R. I. & St. L. R. R. 
 
 Co. n. 1, 2, 1.33; n. 15, 169; n. 3, 
 
 173 
 
 Portland S. & P. E. Co. v. City 
 
 of Saco n. a, 47 
 
 Powers' Appeal n. 2, 289; n. 2, 297 
 Pratt c. Lincoln County n. 4, 197 
 Preston v. Van Gorder n. 1, 324 
 Proprietors of Meeting House v. 
 . Lowell n. 2, 91; n. 1, 140, n. 3, 
 178 
 Providence Gas Co. v. Thurler n. 2, 
 
 200 
 Provident Institution v. Massa- 
 chusetts n. 1, 133 
 Puget Sound Ag. Co. v. Pierce 
 County n. .3, 84; n. 1, 102; n. 1, 
 168; 190, n. 1 
 Putnam ». Fife Lake Tp. n. 1, 40 
 
 Q. 
 
 Queen », Arnoud n. 4, 47 
 
 Quinlan v. Myers n. 1, 210 
 
 Quivey v. Lawrence n. 4, 100 
 
 Railroad Co. v. Jackson n. 2, 46 
 Railway Co. v. McShane n. 1, 173 
 Railroad Tax Case n. 3, 250 {Id. 
 San Mateo County v. South- 
 ern P. E. Co.) 
 Ealstonu. Board of Supervisors n. 1, 
 
 346 
 Ramsey v. Hager n. 7, 176 
 
 Randolph v. Gawley n. 3, 283 
 
 liankiu ». Adams n. 1, 235 
 
 lieclamation District No. 108 v. 
 Evans n. 1, 2, 253; n. 3, 343; n. 1, 
 2, 355 
 Reclamation District No. 3 v. 
 
 Goldman n. 2, 253; n. 3,343; 
 n. 1, 356; n. 2, .357; n. 2, 359 
 
 Eeclamation District No. 108 v. 
 Hagar 302, n. 3; n. 3, .341; n. 2, 
 369; n. 3, 343 
 Eeclamation District No. 3 v. 
 
 Kennedy n. 1, 356 
 
 Eector, &c. Christ Church o. 
 
 Philadelphia n. 4, 176 
 
 Eeed v. Merriam n. 5, 197a 
 
 Reis V. Graff n. 1, 233 
 
 Reeves ». Treasurer of Wood 
 
 County n. 7, 310 
 
 Republic Life Ins. Co. v. PoUak 
 
 n. 3, 134; n. 3, 137 
 Ehea v. Umatilla County 137, n. 1 
 Eicliardson v. Heydeiifeldt n. 3, 283 
 Eichardson b. The State n. 1, 85 
 Eichmond & Danville R. R. Co. 
 1). Alamance Commissioners 
 
 n. a, -52; n. 4, 169 
 Ricketts v. Spraker n. 1, 168; 
 
 180, n. 1 
 Ring V. Ewing n. 1, 67 
 
 Robertson v. Anderson n. 5, 106 
 Eobertson v. Land Commissioners 
 
 n. 1, 180 
 Robins v. New Brunswick n. 1, 285 
 Robinson v. Gaar n. 1, 102 
 
 Eobinson v. A. A. Longley n. 5, 41 
 Eochester v. Town of Eush n. 1, 177 
 Eoderiger v. Drain Commissioners 
 
 n. 3, 339 
 Roe V. Williston n. 1, 64 
 
 Eonkerdorf v. Taylor's Lessee 
 
 n. 1, 12: n. 2,343 
 Roosevelt Hospital b. Mayor 
 
 n. 12. 169; n. 3, 185; n. 2, 321 
 Rutherford's Institutes, 20 Puff, 
 ch. 9, b. 7 n. 3, 133 
 
 S. 
 
 St. Louis V. Clemens n. 10, 310 
 
 St. Louis V. The Ferry Company 
 
 n. 2, 30; n. 2, 34; n. 4, 42 
 St. Louis, &c., R. E. Co. v. Loftin 
 
 n. 8, 169; n. 2, 176 
 St. Louis V. & F. E. E. Co. v. 
 
 Surrell n. 1, 163 
 
 St. Paul V. Mullen n. 2, 303; 
 
 n. 1, 305 
 Salisbury v. Shirley n. 1, 225 
 
 Sanford v. Town of Spencer u. 2, 40 
 Sanderson v. Laselle n. 1, 224 
 
 San Francisco v. Flood n. 2, 84 
 
 n. 5, 120; n. 3, n. 4, 126 
 San Francisco v. Quackenbush 
 
 n. 1, 300 
 S. F. & N. P. E. E. Co. V. State • 
 Board n. 1, 95; n. 4, 131; 
 
 n. 2, 162 
 San Jose Gas Co. v. January 
 
 n. 3, 125; n. 4, Vi'2; n. 1, 2, 133; 
 u. 1, 134; u. 3. 138 
 
CASES CITED. 
 
 XXXI 
 
 Salem Iron Factory b. Danvers 
 
 n. 1, 48; n. 3, 133 
 San Mateo County v. Southern 
 P. K. Co. u. 1, 154a; n. 2, 186; 
 n. 1, 188; n. 1, 189 
 Savings & Loan Society v. Austin 
 
 n. 2, 126; n. ], ]52 
 
 Sehroeder v. Grady n. 3, 153 
 
 Scott ». Kniglitstown n. 2, 24 
 
 Scott V. Oiiderdonk n. 4, 315 
 
 Sears v. Cottrell n. 2, 6, 251 ; 
 
 ji. 1, 350; n. 2, 351 
 
 Seattle v. Tesler 2, n. 2; n. 3, 307; 
 
 n. 12, 310 
 
 Seeley v. Pittsburgh n. 1, 323 
 
 Seely ». Sebastian n. 4, 330 
 
 Selz V. Cagwin n. 2, 40 
 
 Seward v. Rising Sun n. 1, 46 
 
 Sliarp V. Spier n. 6, 60; n. 9, 310 
 
 Shaw V. Orr n. 3a, 80 
 
 Shimmins v. Inman n. 5, 70 
 
 n. 1, 110; n, 1, 3, 111; n. 1, 141 
 
 Shoemaker v. Lacy ii. 1, 324 
 
 Sibley v. Smith n. 4, 80 
 
 Silsbee o. Stockle n. 5, 220 
 
 Siltz B. Indianapolis n. 7, 60 
 
 Sinclair v. Learned n. 5, 220 
 
 Single II. Stetin n. 4, 197 
 
 Slokum V. Slokum n. 1, 235 
 
 Smith V. Cleveland n. 3, 221 ; 
 
 n. 2,3, 232; n. 1, 235 
 
 Smith V. Davis n. 7, 60; n. 1, 71; 
 
 n. 1, 299 
 
 Smith V. Duncan n. 6, 282 
 
 Smith V. Shattuck n. 3, 86 
 
 Smith V. Smith 190, n. 1, 2 
 
 Smith V. The Duck Pond Ditch. 
 
 Association n. 8, 332 
 
 n. 2, 9, 334; n. 3, 337 
 
 Society for Savings v. Coite n. 1, 133 
 
 Sonliegan Nail, Cotton & Woolen 
 
 Factory ». McConihe n. 2, 62 
 South Platte Land Co. v. City of 
 
 Crete n. 2, 220 
 
 Spear v. Braintree ii. 3, 138 
 
 Spier V. City of Passaic n. 1, 307 
 Spencer v. McGowen n. 2, 251 
 
 Spencer v. The People n. 3, 137 
 Spring Valley W. W. v. Scottler 
 
 n. 1, 2, 133; n. 1, 134 
 Stanley v. Board Supervisors 
 
 Albany County n. 5, 186 
 
 Star V. Burlington 276, n. 2 
 
 State V. Allen n. 1, 251 
 
 State V. Board of Public Works 
 
 of St. Paul n. 1, 313 
 
 State V. Carroll n. 2, 11 
 
 State V. Central Pacific E. B. Co. 
 
 n. 8,4; n. 4, 130; n. 3, 136 
 n. 1, 161 
 State V. City (Mayor) of Newark 
 
 n. 4, 309; n. 1, 330 
 State V. Collector of Jersey City 
 
 n. 7, 60; n. 1, 111; n. 4, 136; 
 n. 3, 137 
 
 State V. Cooper n. 3, 315; n. la, 318 
 State V. Crockett n. 4, 136 
 
 State V. District Court of Eamsey 
 
 County n. 4, 307; n. 3, 4, 309 
 State V. Earl n. 4, 45 
 
 State V. Eureka, &c., M. Co. n. 4, 225 
 State V. Hannibal St. Jo. E. E. 
 
 Co. n. 1, .56 
 
 State V. Harrison n. 4, 320 
 
 Stale V.' Indianapolia n. 5, 167 
 
 n. 2, 187 
 State V. Kruttschmidt n. 3, 4; 
 
 n. 1, 24; n. 1, 103, n. 5, 172 
 State V. Lafayette County n. 2, 111 
 State V. Mayor of Newark n. 1, 283 
 State V. M. & G. Lake K. E. Co. 
 
 n. 1, 191 
 State V. Moore n. 1, 100; n. 2a, 136 
 State V. Mulford n. 1, 86 
 
 State V. Northern Central E. E. 
 
 Co. n. 11, 169 
 
 State V. Person n. a, 47 
 
 State V. Real Del Monte G. & S. 
 
 Co. n. 1, 90; n. 3, 191 
 
 State ». Eeed n. 2, 322 
 
 State V. Warford . n. 1, 32 
 
 State V. Washoe County n, 1, 159 
 State V. Winona, &c., R. B. Co. 
 
 n. 2, 173 
 State, &c., Sharp v. Apgar n. 1, 233 
 State, ifec, Lehigh & Wilksbarre 
 
 Coal Co. V. Carrigan n. 5, 41 
 State, &c., Spier v. City of Passaic 
 
 n. 1, 307 
 State, &c., Ely v. Collector of 
 
 Holmdel Tp. n. 5, 39 
 
 State, &c., WyeofEi'. Creoeling 
 
 n. 4, 5 
 State, ex., Harris v. Mayor of 
 
 Jersey City n. 3, 12 
 
 State, &c.. Young v. Parker n. 4, 4 
 State, ifec, Eandolph v. Plain- 
 field n. 6, 232 
 State, ex rel., v. Severence n. 5, 49 . 
 State — N. J. E. Trans. Co. v. 
 
 The Mayor of Newark n. 1, 307 
 State — Ackerman v. Town of 
 
 Bergen n. 11, 61 
 
 State, &c., Vreeland v. Town 
 
 of Bergen n. 2, 233 
 
 State, ex., Walter v. Town of 
 
 Union n. 1, 233 
 
 State, &c., Kingsland v. Town- 
 
 sliip of Union n. a, 205 
 
 State, &c., Eutlierford Park 
 
 Association v. Township of 
 
 Union n. 6, 126 
 
 State— Town of Bergen v. Van 
 
 Horn n. 1, 307 
 
 State ex rel. v. Williston n. 7, 60 
 State — Truse v. Woodruff n. 4, 309 
 Starr v. Burlington n. 2, 276 
 
 State Freight Tax n. 3, 41 
 
 State Rail Road Tax Cases n. 2, 134; 
 n. .3, 142; n. 6, 154 
 
XXXll 
 
 CASES CITED. 
 
 State Tax on Foreign Bonds 
 
 n. 6, 44; n. 3, 46 
 State Tonnage Cases n. 2, 41 
 
 State Treasurer v. Auditor 
 
 Genl. n. 1, 50 
 
 Stewart v. Carter n. 5a, 60; n. 3a, 80 
 Stilwell V. Corwin n. 3, 174; 
 
 Stoddard v. Johnson n. 1, 278 
 
 Stoddard v. Sloan n. 3, 60; n. 1, 101 
 Stoneham Brancli E. Co. v. Levi 
 
 Gould )i. 1, 368 
 
 Story Confl. Laws n. 7, 38; n. 1, 43 
 Strasburgh -e. Mayor, &c.. New 
 
 York n. 1, 194 
 
 Strowbridge v. City of Portland 
 
 in. 2, 307; n. 3, 309; n. 3, 320; 
 
 n. 5, 322 
 
 Stuart V. Palmer n. 2, 3, 252; 
 
 n. 2, 310 
 
 Sullivan v. Triiinfo G. & S. M. 
 
 Co. n. 2, 369 
 
 Supervisors of Tazwell County 
 
 V. Davenport n. 3, 45 
 
 Swan V. Manchester n. 5, 38 
 
 Swift V. City of Pouglikeepsie 
 
 n. 3, 20 
 Swift V. Poughkeepsie n. 1, 194 
 
 Tallman v. White n. 1, 87; n. 2, 88; 
 n. 1, 89 
 Talisman v. Janesville n. 2, 197 
 
 Tappan v. Merchant's National 
 
 Bank n. 5, 55 
 
 Taunton Turnpike v. Whiting 
 
 n. 5, 6, .363 
 Taylor v. Moffatt n. 3, 23 
 
 Tavlor v. Palmer n. 3, 1; n. 1, 279; 
 " n. 4, 282; n. 2, 294; n. 4, 5, 310; 
 n. 2, 324; n. 3, 363 
 Taylor D. Porter n. 4, 2.50; n. 7, 251 
 Tavlor Admtr. St. Louis Co. 
 
 " Court n. 3, 45 
 
 Tefft V. City of Buffalo n. 5, 230 
 Tennessee, &c., Gallatin o. 
 
 Alexander n. 5, .39 
 
 Terrill D. Groves n. 2, 3, 111; 
 
 n. 1, 141 
 
 Tliebodaux v. Keller n. 2, 63 
 
 The B. K. G. T. & O. K. Co. ». 
 
 Kirkland n. 16, 169 
 
 The C. B. & Q. E. R. Co. v. 
 
 Paddock n. 5, 131 
 
 The City of Burlington v. Gil- 
 bert n. 1, 319 
 The Commonwealth v. The 
 
 Easton Bank n. 3, 131 
 
 The Delaware Railroad Tax n. 2, 131 
 
 The Eel River Drain. Asso. v. 
 
 Topp n. 5, 334; n. 2, 335; 
 
 n. 1, 336 
 
 The Exchange Bank Tax Case 
 
 n. 8, 250 
 
 The Freight Tax n. 1, 133 
 
 The Hartford & New Haven 
 Railroad Co. v. Cresswell 
 
 n. 7, 363 
 The Indanapolis & Cumberland 
 Gravel Road Co. v. Christian 
 
 n. 1, 338 
 The Jordan Ditching & Drain- 
 ing Association v. Wagoner 
 n. 4, 80; .335, n. 2; n. 2, 337 
 The Mayor of Baltimore v. Pro- 
 prietors of Green Mount 
 Cemetery n. 6, 310 
 
 The New Eel River D. A. v. 
 
 Durbin n. 1, 333; n. 3, 336 
 
 The New York African Society 
 for Mutual Relief v. Varick 
 
 n. 3, 62 
 The Northern Liberties v. St. 
 
 John Church n. 7, 310 
 
 The Peninsular Railway Co. v, 
 
 Tharp n. 2, 369 
 
 The People v. Atkinson n. 2, 40 
 The People v. Collins n. 1, 60 
 
 The People v. Reat n. 3a, 80 
 
 The Pigeon Preek Draining Asso.- 
 
 V. La Gjange n. 4, 336 
 
 The Railroad Tax Case (s. c. 
 San Mateo County ». South- 
 ern P. R. Co.) n. 2, 154a; 
 n. 1, 189 
 The Skelton Creek Draining Co. 
 
 V. Mauck n. 3, .332 
 
 The Standard Oil Co. v. Bachelor 
 
 n. 5, 41 
 The State v. Lafayette County 
 
 n. 2, 111 
 The State v. The Mayor, &c., 
 
 Newark n. 4, 170; n. 15, 310 
 The State v. The Mayor and 
 Common Council of the City 
 of New York n. 15, 310 
 
 The State Tax on Railway Gross 
 
 Receipts n. 1, 133 
 
 Thomas v. Gain n. 1, 2.52 
 
 Thomas v. Lee County n. 1, 197a 
 Thompson v. Burhams n. 5, 113; 
 n. 1, 220 
 Thompson v. Lee County n. 6, 230 
 Thorndyke v. City of Boston n. 5, 36 
 Thurston v. Little and others n. 7, 4 
 Tierney v. Doiigherty n. 3, 294 
 
 Tierney v. Union Lumbering Co. 
 
 n. 1, 136; n. 1, 3, 220; n. 2, 294 
 Tilton V. Orig. Central, &c., R. 
 
 Co. n. 1, 225 
 
 Tift V. City of Buffalo n. 5, 230 
 
 Tobey v. Wilson n. 2, 15(i 
 
 Torrens i). Townsend n. 3, 294 
 
 Town of Bergen v. State, &c., 
 
 Van Horn n. 1, 307 
 
 Troy & Greenfield R. R. Co. v. 
 
 Newton n. 4, 366 
 
 Trustees of Dartmouth College 
 D. Woodward n. 2, 188 
 
CASES CITED. 
 
 xxxui 
 
 Trustees Good Shepherd v. 
 
 Boston n. 6, 169 
 
 Trustees of M. E. Church v. Ellis 
 
 n. 17, 169 
 Tucker o. Ferguson n. 8, 169; 
 
 n. 4, 6, 176 
 Turnbridge v. Smith n. 1, 231 
 
 Turner «. Yeoman n. 3, 83; n. 1, 84 
 Tyler v. Inhabitants n. 5, 60; 
 
 11. 1, 61 
 
 U, 
 
 Union Bank of Tennessee v. The 
 State n. 4, 56; n. 3, 133 
 
 XTnited States v. Amedy n. 1, 188 
 
 United States, constitution of n. 2, 41 
 
 United States, Revised Statutes 
 of n. 2, 3, 100 
 
 United States, Statutes at Large ii. 4, 
 
 55 
 
 Upson, see Petition of. 
 
 Upton's Dig. Dec. 2d Couipt. n. 3, 1 
 
 Vail's Executors v. Runyon n. 2, 30 
 Van Allen v. The Assessors u. 1, 55; 
 n. 1, 174 
 Vanatta ». Runyon n. 1, 51 
 
 Van Rensselaer v. Whitbeck n. 1, 2, 
 
 221 
 Van Sant v. City of Portland n. 1, 
 
 288 
 Van Voorhis v. Budd n. 2, 60; n. 2, 62 
 Vezie Bank v. Fenno n. 1, 133 
 
 V. & T.R. R. Co. V. County Com- 
 missioners of Ormsby Co. n. 6, 
 4; n. 2, 10; n. 1, Ib'O 
 Vogel V. Vogel n. 3, 24; n. 2, 67 
 
 W. 
 
 Wade V. Mattliewson n. 2, 23; n. 1, 23 
 Wall V. Trumbull n. 4, 8; n. 3, 23 
 Wallingt'ord v. Fiske n. 1, 85 
 
 AValtliara Bank v. Inhabitants of 
 
 Waltliaui n. 6, 56 
 
 Walsh V. People n. 1, 158 
 
 Walton V. Westwood n. 4, 43; u. 1, 66 
 AVangler Bros. v. Black Hawk 
 
 County II. 3, 7 
 
 Ward's Appeal n. 1, 320 
 
 A\^ard u. AValters n. 3, 14; ii. 3, 221 
 \Vare v. Woodall n. 5, 197« 
 
 Washburn v. City of Oskosh n. 4, 40 
 AVashburn on Eas. n. 1, 200 
 
 Washb. Real Estate n. 3, 230 
 
 Washington Avenue n. 1, 311 
 
 Washington Ter. Code n. 3, 6; n. 1, 
 70; n. 13, 310 
 Watkins v. Pickering u. 2, 332 
 
 "Watkins v. Zweitusch n. 3, 275 
 
 Watson V. Mercer n. 5, 232 
 
 Weaver v. Diffendorf n. 2, 20; n. 1, 
 
 25 
 Webster's Unabridged n. 1, 36; n. 4, 
 
 80 
 
 Weeks v. Milwaukie n. 1, 2, 168; 190, 
 
 n. 1, 2 
 
 Wells V. Buriiham n. 4, 290 
 
 Wells, Fargo & Co. v. Board of 
 
 Equalization n. 1, 153 
 
 W. St. Louis & P. R. R. Co. V. 
 
 Johnson n. 2, 4 
 
 West 1). The BuUskin Prairie 
 
 Ditching Co. ii. 4, 332 
 
 West River Bridge Co. v.Dix n. 1, 133 
 West Wisconsin R. Co. v. Trem- 
 
 palean Co. n. e, 176 
 
 Westbrook v. Wiley n. 1, 220 
 
 Wetherbee v. Dunn n. 2, 12 
 
 Wheeler v. Anthony n. 7, 60 
 
 Wheeler v. City of Cliicago n. 1, 320 
 Wheeler, Parkersburg, &c. 
 
 Trans. Co. v. Wheeling n. 2, 30 
 White V. Pliillipston n. 5, 24 
 
 White Pine County v. Ash n. 1, 33 
 Whitney v. Thomas n. 5, 8; n. 7, 10, 
 60; n. 1, 6'J 
 Wilcox V. Ellis n. 6, 126 
 
 Wilhelm v. Russell ii. 5, 197a 
 
 Wilkerson v. The State n.,3, 60 
 
 Williams v. Central Land Co. n. 3a. 
 
 80 
 Williams v. The Board of Super- 
 visors n. 3, 45 
 Williams ». Sacramento Co. n. 2, 34;! 
 Williams v. Saginaw n. 2, 48 
 Williams v. School District n. 3a, 
 153; n. 1, 168; n. 2, 224 
 WUliams v. Sacramento Co. 343, n. 1 
 Williams v. The N. Y. Cent. R. 
 
 R. Co. ]i. 3, 200 
 
 Williams v. Weaver n. 2, 20 
 
 Willey B. Scoville's Lessees n. 2, 110; 
 n. 3, in 
 Willis V. Havemeyer n. .3, 23 
 
 Wilmington Railroad v. Reed, 
 
 Sheriff n. 1, 2, 133; n, 3, 17G 
 Wilmington R. R. Co. v. Reid n. 5, 8, 
 
 J 33 
 Wilson V. Wheeler n. 3, 1.38 
 
 Winnisimet County v. Assessors n. 1, 
 
 2,5 
 Winser, ex parte n. 1, 360 
 
 Wisconsin Cent. R. Co. v. Lin- 
 coln Connty ii. 5, 186 
 Wisconsin Cent. R. Co. v. Tay- 
 lor County 11. 1, 173 
 Witherspoon v. Duncan n. 4, 61 
 Withington v. Eveletli n. 1, 23 
 Wood ». Bradley n. 2, 324 
 Wood V. Helmer n. 2, 22U 
 Wood B. Norwood Township n. la, 
 
 318 
 Woodbridge b. City of Detroit n. 7, 
 
 310 
 
XXX3V 
 
 CASES CITED. 
 
 Woodhouse v. Commonwealth 
 Ins. Co. n. 7, 363 
 
 ■WoodrufE V. Fisher n. 1, 352 
 
 Woodruff V. Town of Depere n. 1, 
 
 197c 
 
 Woods V. Freeman n. 1, 225 
 
 Worcester Ag. Society ». Wor- 
 cester n. 8, 170 
 
 Worcester Turnpike Corporation 
 v. Willard n. 5, 363 
 
 Worths. Wilmington & Weldon 
 R. E. Co. n. 1, 175;n. 3, 176 
 
 Wright V. Cradlebaugli n. 4, 100; n. 2, 
 
 101 ; n. 3, 111 ; n. 2, 141 ; 
 
 n. 2, 7, 251 
 
 Wright V. Drain Commissioners 
 
 n. 1, 333; n. 2, 339 
 Wyman v. Baer n. la, 110 
 
 T. 
 
 Yenda v. Wheeler 
 Young V. Taylor 
 
 n. 6, 61 
 n. 1, 80 
 
 Zotman v. San Francisco n. 1, 295 
 
 APPENDIX TO CASES CITED. 
 
 Brooks ». Pollc County n. 1, 3S3 
 City of Davenport v. R. I. & P. 
 
 R. Co. n. 1, 382 
 
 Coe V. The Town of Errol ii. 2, 386 
 How. Corap. Laws n. 1, 385 
 
 Knight V. Valentine n. 1, 384 
 
 Louisville & N. E. Co. v. Com- 
 monwealth of Kentucky n. 1, 
 381; n. 1,382 
 Meade v. Gilfoyle n. 1, 880 
 
 McMillen v. Anderson n. 1, 381 
 
 Missouri u. Lewis n. 
 
 Northern Pacific R. R. Co. 
 
 Rockne n. 
 
 Ryerson ». City of Muskegon 
 
 1,382 
 
 13. 
 
 3, 8SS 
 
 n. 2, 
 
 385 
 
 3, 382 
 
 State — Howell r. Richards n. 
 
 Tubbessing v. City of Burling- 
 ton n. 2, 383 
 
 Webster — Glover Lumbering Co. 
 V. St. Croix Co. n. 1, 387 
 
THE LAW OF ASSESSMENTS. 
 
 CHAPTER I. 
 
 ASSESSMENTS. 
 
 Sec. 1. Taxes ana Assessments defined.— Taxes are obli- 
 gations or charges imposed upon persons or property by 
 legislative or sovereign power.^ They are also defined as 
 "the enforced or proportional contribution of persons and 
 propertj' levied by the authority of the state for the sup- 
 port of the government, and for all public needs." ^ A tax 
 originates with and is imposed by the government. These 
 definitions embrace all general taxation. There is also a 
 class of taxes commonly called assessments or special taxes, 
 composed of " those local burdens imposed by municipal 
 corporations upon property bordering upon an improved 
 street, or situated so near it as to be benefited by the im- 
 provement, and laid with reference to the benefit which 
 such property is supposed to receive by the expenditure of 
 the money." ^ These when levied by a municipal corpora- 
 tion are confined to some street, or locality; and when 
 levied by a drainage corporation, swamp land district or 
 other public corporation, usually include all- the property 
 embraced within the jurisdiction of the corporation, sub- 
 ject to assessment by reason of benefits. Private corpora- 
 tions are generally authorized by their charters or the law 
 
 1 Black, Tax T. 1. A tax is not a ^ Opinions of the Judges, 58 Me. 
 debt, a debt being a sum of money 591. A tax is not a debt. Field's 
 due by contract express or implied, Opin. ; Perry ». Wasliburn, 20 Cal. 
 •wiiile a tax "is a charge upon per- 350. 
 
 sons or property to raise money for ' Taylor v. Palmer, 31 Cal. 254. 
 public purposes." Field's Opin.; 
 Perry i>. Washburn, 20 Cal. 350. 
 1 
 
2 THE LAW OF ASSESSMENTS. 
 
 under which they are organized to levy assessments upon the 
 shares into which their capital stock is divided. Assessments 
 by such corporations may be defined to be pro rata charges 
 imposed upon the shares into which the capital stock is 
 divided, for the purpose of carrying out the objects for which 
 the corporation was created or organized. If the corporation 
 has no capital stock, the assessment may represent a per 
 capita charge against its members or a pro rata charge against 
 their property, according to some rule or proportion estab- 
 lished by mutual agreement of its members. An important 
 distinction between a tax and an assessment is, that a tax 
 must be assessed upon all the property within the tax dis- 
 trict upon the principle of uniformity, whereas an assess- 
 ment is levied only upon the property benefited.* Such is the 
 distinction between a tax and an assessment levied to pay 
 the expense of a local improvement that a provision in a 
 lease for refunding all taxes paid by the lessee will not in- 
 clude assessments paid on account of local improvements.^ 
 The word "Assessment," when found in a constitution in 
 
 * People V. Whyler, 41 Cal. 354. 
 The tax in. this case was levied upon 
 the property of the Levee District 
 No. 1 in Sutter County, California, 
 and formed for the levying of a tax 
 on all the property within the dis- 
 trict to provide means for construct- 
 ing levees to prevent overflow. It 
 was objected that the act created an 
 assessment and not a tax, but the 
 court held otherwise. In answer to 
 the objection that it was a tax for 
 a local improvement, and only the 
 property benefited should have been 
 taxed, the court say: "Had per- 
 sonal property been exempted by 
 the Act from taxation, that provision 
 (if valid) would have furnished an 
 unanswerable objection to the Act, 
 that it did not impose the tax on all 
 the property within the district. In 
 answer to the objection that it was a 
 tax for a local improvement, the 
 court said: "If the legislature in- 
 tended that a tax should be levied, 
 
 and if it may be levied, to pay for a 
 local improvement, it is not only no 
 objection to the Act, or the procped- 
 ings that were had under it, that it 
 is not levied upon property in pro- 
 portion to the benefits received by 
 means of the improvements; but if 
 a tax should be levied on that prin- 
 ciple it would be fatally defective, 
 because lacking the constitutional 
 qualities of equality and uniform- 
 ity. Id. p. 355. 
 
 The court also passed on the ques- 
 tion whether a tax could be levied 
 upon all the property of the district 
 for this local purpose, and held that 
 it was within the province of the 
 legislature to levy taxes for such pur- 
 poses, instancing the levying of taxes 
 upon the property of schpol and road 
 districts, for the building of school- 
 houses, the construction of roads 
 and bridges. Id. 354. 
 
 ^Upton's Dig. Dec., Second 
 Compt. § 60. 
 
ASSESSMBIfTS. 8 
 
 connection with the subject of taxation, is always used to 
 mean a tax levied upon the principle of benefits.* 
 
 Sec. 2, Assessments which are not Taxes, defined. — There 
 is still another sense in which the word "assessment" is 
 used, and by which is meant an official listing of persons 
 and property, with an estimate of the value of the property 
 of each, for the purpose of taxation. Used in this sense an 
 eminent author has defined an assessment as being an offi- 
 cial estimate of the sums which are to constitute the basis 
 of an apportionment of a tax between the individual sub- 
 jects of taxation within the district.^ The words " assess- 
 ment" and " assessed," as found in the revenue act, said, a 
 learned judge, "are sometimes used in a limited, strict 
 sense as reaching and extending only to the act of estimat- 
 ing the values which are to form the foundation or basis 
 of taxation ; they are also used in the general and more 
 extended sense as implying the completed tax list, that is 
 to say, the names and list of the persons to be taxed, with 
 the valuations of their property and the taxes set down 
 under their several headings, and properly extended and 
 carried out." ^ From these definitions it will be seen that 
 an assessment, as now being considered, consists of the list- 
 ing of the names of persons subject to taxation, with a list 
 or description of the property of each ; and also an estimate 
 of its value.^ Assessments of this character will be first 
 considered. 
 
 Sec. 3. An Assessment necessary to support a tax. — Every 
 
 «" In the constitutions of some of Or. 156. The general legal meaning 
 the states, in addition to the term of the word "assessment" is au- 
 taxation, was found in close connec- thoritative imposition. Manning v. 
 tion the term assessments. Un- Kleppel, 9 Or. 3Y3. 
 questionably they do not mean the ' Cooley on Tax. 258; Seattle v. 
 same thing. Courts have always Tesler, 1 Wasli. T. 576. 
 construed them differently: taxation ''People v. Moore, 1 Ida. 670. 
 has been uniformly restricted to the » Cooley on Tax. 258. Bouvier 
 mode for raising a revenue for the defines an assessment to be, "De- 
 general expenses of the go vernment ; termining the value of a man's 
 and assessments to the means for property or occupation for the-pur- 
 paying those local burdens arising pose of levying a tax. Determining 
 by reason of the wants of small com- the share of a tax to be paid by each 
 munities, or of portions of larger individual." (Title, "Assessment") 
 ones." King v. City of Portland, 2 
 
4 THE LAW OF ASSESSMENTS. 
 
 t;\x must be supported by a valid assessment. It is the 
 initial step in the process of taxation, and cannot be dis- 
 pensed with under any circumstances.' The aggregate 
 valuation of the property of the state or district is used to 
 determine the rate of taxation — the ratio which, when 
 applied to the valuation of the property of each, will pro- 
 duce a total sufficient to meet the expenses and needs of 
 government. This aggregate valuation can only be ascer- 
 tained by the assessments of all the persons owning property 
 subject to taxation. Equality and uniformity in taxation 
 can only be reached through assessments, and in all state 
 constitutions and revenue laws the provision for uniformity 
 and equality in taxation is made to include assessments. 
 In the absence of constitutional limitations a municipal tax 
 may be levied upon an assessment made by a county as- 
 sessor of the property embraced within the municipality;^ 
 
 1 Black, Tax T. 106. Speaking of 
 the necessity of an assessment to 
 support a tax Justice Field used the 
 following language : 
 
 " The listing and valuation of real 
 estate for the purpose of taxation is 
 an essential prerequisite to the valid- 
 ity of all subsequent proceedings. 
 It is from the list made by the as- 
 sessor, after it is corrected by the 
 board of equalization, that the audi- 
 tor prepares the duplicate, which 
 gives to the officer his authority to 
 demand the tax and to levy and sell 
 the property of the delinquent. If 
 no valuation was placed by the as- 
 sessor upon the property, none could 
 be placed upon it by the board of 
 equalization. The board may alter 
 the valuation in order to equalize it, 
 but cannot jjlace the valuation in 
 the first instance, excepting only in 
 cases where authorized to make as- 
 sessments in the first instance. That 
 is the duty of the assessor." 
 
 '' The provision of the old consti- 
 tution of California was that " Tax- 
 ation shall be equal and uniform 
 throughout the state. All property 
 
 shall be taxed in proportion to its 
 value, to be ascertained as directed 
 by law ; but assessors and collectors 
 of town, county and state taxes, 
 shall be elected by the qualified elec- 
 tors of the district, county or town 
 In which the property taxed for 
 state, county or town purposes is 
 situated." Art. XI. § 13 Cons., Cal. 
 Under this constitutional provision 
 it was held in California that a tax 
 could not be levied upon an assess- 
 ment made by an assessor not elected 
 by the qualified electors of the tax 
 district. The facts were that the 
 city of Sacramento and the county 
 of Sacramento were consolidated 
 after the general plan of the city and 
 county of San Francisco for the pur- 
 poses of both city and coimty gov- 
 ernment. An assessor had been 
 elected for this consolidated govern- 
 ment, who had made an, assessment 
 for the year 1862 of all taxable 
 property within both the city and 
 county. By act of the legislature, 
 this consolidation had been dissolved, 
 and a municipal form of government, 
 enacted for the city of Sacramento 
 
ASSESSMENTS. 
 
 but where the constitution requires assessments for town, 
 county and state purposes to be made by assessors elected 
 by the qualified voters of the district within which they are 
 levied, it is not within the power of the legislature to levy 
 or authorize the levy of a tax upon an assessment made by 
 an ofiicer not elected by the voters of the town or district ; 
 notwithstanding he may have been elected the assessor of a 
 county embracing the town or district.^ 
 
 Sec. 4. Assessment Lists — ^not conclusive as to value — pen- 
 alty for not furnishing.— Under the revenue laws of most, if 
 
 and the form of county government 
 for the county re-established. After 
 this, a special act was passed to 
 enable the city to reconstruct levees 
 to prevent overflow of the American 
 and Sacramento rivers and a tax was 
 levied upon the assessment made in 
 1862, so far as it included property 
 within the city. It will be observed 
 that this assessment was made by an 
 assessor elected for tlie consolidated 
 city and county government. By 
 this special act it was made the duty 
 of the city assessor to copy tlie as- 
 sessment roll of 1862, so far as it 
 included the property of the city, 
 "which assessment," it was pro- 
 vided, " is hereby adopted, and the 
 value of the property in the same is 
 made the basis for said taxes, and 
 deliver the same to the Auditor." 
 Justice Rhodes, after quoting section 
 13 of Art. XI. of the Constitution, 
 held that this provision made it a 
 prerequisite to a valid assessment 
 that it be made by an officer elected 
 by the qualified electors of the town 
 or district in which the tax was 
 levied. " The constitutional require- 
 ments are not satisfied merely by an 
 assessment made in the manner 
 directed by law, but it is also pro- 
 vided that the assessors of town, 
 county or state taxes shall be elected 
 by the qualified electors of the di.s- 
 trict, county or town in which the 
 property to be taxed is situated — 
 that is to say, that the assessment 
 must be made by a person elected as 
 
 an assessor by the qualified electors 
 of such district, county or town. A 
 tax in order to be valid, must rest 
 upon an assessment made in the 
 mode prescribed by law and by an 
 assessor elected as provided for by 
 the constitution." People t. Hast- 
 ings, 29 Cal. 451. 
 
 8 By the new constitution of Cali- 
 fornia it is provided that the property 
 of all railroads operated in more 
 thau oue county shall be assessed by 
 the State Board of Equalization and 
 the assessment of so much thereof 
 as is properly taxable in each county, 
 town or lesser tax district, shall be 
 certified to such county, town and 
 tax district and used as the basis of 
 all taxation within such district. 
 Sec. 10, Art. XIII. Cons. Cal. 
 
 In Oregon, by force of statute, 
 municipal corporations levy their 
 taxes upon the assessment made by 
 county assessors. The county as- 
 sessment of property within the 
 municipalities of Portland and East 
 Portland, is made the basis of taxa- 
 tion for municipal purposes. It is 
 made the duty of the City Auditor 
 " on or before the 1st day of Decem- 
 ber of each year to make a list of 
 all taxable property within the limits 
 of the city, which list shall be taken 
 by liim from the assessment roll for , 
 Multnomah county." After this list 
 has been equalized, it is made the 
 assessment roll of the city.- Dal- 
 ton V. East Portland, 5 Pac. Kep. 193. 
 
6 THE LAW OF ASSESSMENTS. 
 
 not all the states, tax payers are furnished with blank lists 
 and required, withia a given time, to furnish a statement 
 of all their taxable property. Under some systems they are 
 required to include all property, whether claimed as exempt 
 from taxation or not — ^listing in appropriate column that 
 claimed as exempt. Where lists are furnished, personal 
 property is so classified, that but little more is left for the 
 tax payer beyond inserting quantities, and values when that 
 is required ; and if real property be embraced, a description 
 of it. These lists, whether made out by the tax payer or 
 the assessor, constitute the first step in making an assess- 
 ment for taxable purposes. The list when made, does not 
 constitute the assessment, bnt as before stated, is the initial 
 proceeding in the making of an assessment; it serves as 
 a basis or as information to the assessor from which he is 
 enabled to make the assessment.^ Usually it is required 
 to be verified by the oath of the persons making it, and 
 perjury may be assigned for omissions knowingly made or 
 false matter knowingly inserted with intent to defraud the 
 revenue laws. If values are required from the tax payer 
 and are given as to each article or class of the property 
 listed, the assessor is not concluded by such statement of 
 values but may fix values according to his own judgment as 
 to the actual value of the property.^ In some states he can 
 
 1 " The assumption seems to be property of each individual, the list, 
 
 that the schedule returned hy appel- if any brought in by him, unless he 
 
 lants was the assessment, and that shall, on being thereto required by 
 
 the larger sum placed on the asses- the assessors, refuse to make oath 
 
 sors' books was an alteration of the that the same is true," it was held 
 
 assessment. This is not true. The that this statute did not make the 
 
 assessor and not the tax-payer makes estimates of values conclusive as to 
 
 the assessment. The latter is re- the assessors. "If this section be 
 
 quired to make and return the taken, or if the word 'valuation' 
 
 schedule, to enable the assessor to therein contained be used in the 
 
 perform the duty of assessing the sense which it often bears as 'ap- 
 
 value of the property. Until the praisement,' the setting or estima- 
 
 assessor approves the schedule, or ting of the " value " of anything, it 
 
 makes a new one and fixes the valu- would certainly afford a very strong 
 
 ation of the property, there is no support to the respondent's argu- 
 
 assessment. The act is official, and ment. But the conclusion from this 
 
 must be performed by the assessor." exposition of the statute would be 
 
 I'elsenthal v. Johnson, 104 111. 24. that every inhabitant may determine 
 
 2 Where the language of the stat- for himself for what property he 
 
 ute was that "the assessors shall will be taxed, and at what rate it 
 
 receive, as the true valuation of the shall be apprai3ed, and thus in effect 
 
ASSESSMENTS. 
 
 make no change without notice to the party furnishing the 
 list. This would seera only justice to the tax payer, who 
 ought to know the amount of his assessment, so as to ena- 
 ble him to determine whether to apply to the Board of 
 Equalization for relief. The valuation should be the official 
 estimate of the officer, whose duty it is to make the assess- 
 ment, with the right of appeal from this valuation, both on 
 p irty of the person assessed and the government, to the 
 Board of Equalization.^ 
 
 Where a list is required, the penalty for refusing or fail- 
 ing to furnish it within the time required, is the denial of a 
 hearing before the Board of Equalization to have a reduc- 
 tion of an assessment which the assessor may have been 
 
 determine what tax he will pay, 
 subject only to this exception, that 
 if required, he shall refuse to swear 
 
 to the truth of the list given in." 
 After examining other sections of 
 the same act, and also prior legisla- 
 tion on the same subject, the court 
 held that the oath "does not extend 
 to the appraisement or estimate of 
 its (the property's) value." Pro- 
 ceeding, the court add: "If, then, 
 'valuation' is used, in this section 
 as synonymous with list, and to 
 avoid repetition of that word, the 
 effect is, that the list, thus to be 
 brought in and sworn to, shall be 
 received as a true list; and then it 
 shall be taken as a true statement of 
 that man's real and personal estate, 
 and (to use the language of St. 1785, 
 ch. 50, § 9), 'shall be a rule for that 
 person's proportion of the tax, who 
 presented the, same, which the asses- 
 sors may not exceed, unless they shall 
 discover error therein.' Upon this 
 theory, the return would be conclu- 
 sive as to the nature and amount of 
 each one's taxable property, but not 
 as to the value at which it should be 
 estimated for purposes of taxation." 
 Inhabitants of Newburyport v. Coun- 
 ty Commissioners, 12 Met. 213. 
 
 But in Illinois it is held that where 
 a. list and valuation has been fur- 
 
 nished and accepted, it is not with- 
 in the power of the assessor after- 
 wards to alter it without notice; hut 
 if he discover other property, not 
 included, he may add that to the 
 party's assessment without notice. 
 W. St. L. & P. E.. Co. ». Johnson, 
 108 111. 14. This case seems to con- 
 flict with the 'case of the C. B. & Q. 
 K. K. Co. ». Paddock, 75 111. 621, 
 where it was held that when a cor- 
 poration or natural person is re- 
 quired to furnish a, list of property 
 with values, the valuation is not 
 conclusive upon the officer, but only 
 evidence proper to be considered by 
 the assessor or Board of Equaliza- 
 tion; and this is the general doc- 
 trine. 
 
 ' " The assessor should exercise 
 his judgment, and from that judg- 
 ment there should be an appeal to 
 the Board of Equalization. If the 
 sworn statement of the parties them- 
 selves were to be conclusive, why 
 allow an appeal to the Board of 
 Equalization ? To allow a party to 
 fix his own taxes, without any power 
 on the part of the assessor to inter- 
 fere with his estimate, and then 
 allow the same party, to appeal from 
 his own estimate, would be abso- 
 lutely absurd." State ». Krutt- 
 schmitt, 4 Nev. 209-10. 
 
8 THE LAW OF ASSESSMENTS. 
 
 compelled to make without the aid of a returned list.* 
 When the list is to be verified by the oath of the party fur- 
 nishing it, a formal oath in writing, or in the printed form, 
 prescribed and annexed to the blank list furnished, sub- 
 scribed, and the oath formally administered as in other 
 cases, is required.^ Assessment lists may therefore be de- 
 fined as being itemized statements of taxable property, 
 furnished by tax-payers to assessors to be used by them as 
 information in making assessments. They are prescribed 
 by statute. The blanks furnished usually contain a classi- 
 fied statement of all personal and real property, leaving 
 only quantities and values taxable to the parties, to be 
 filled in. 
 
 Where, however, provision is made for special assess- 
 ments of property overlooked or brought within the tax 
 district after the required closing of the assessment roll, 
 and no provision is made for furnishing a statement for 
 such assessments, and special provision is also made for 
 equiilization, modification or discharge of such assessment, 
 the furnishing of ^ statement as a condition precedent to 
 
 » What will constitute refusal to After the time has expired it is too 
 furnish list. The following facts late to receive the list from a tax- 
 were consti'ued to amount to a refu- payer, and all the consequences of a 
 sal to furnish a sworn list. Mr. refusal or failure attach. Porter b. 
 Brindley, the assessor, says: "I left County Commissioners of Norfolk, 
 a tax affidavit at Mr. Young's house 5 Gray 365. 
 
 within the first week in May, 1867. ^ Where an officer called on a tax- 
 Mr. Young never returned to me a iJayer to take his assessment list, and 
 sworn statement of his property. I asked him whether there had been 
 met Mr. Young in the street in June, any change in his property from the 
 before the assessment was closed. I previous year, and the tax-payer re- 
 told him he had not returned his plied that there were none, except 
 affidavit home yet ; that I was about as he then stated, whereupon the as- 
 closing my book, and wanted to get sessor said to him, "You take your 
 them all in. He said he did not oath that that is all, do you?" to 
 think It was necessary to make an which the tax-payer replied, "Cer- 
 affidavit. I told him I thought it tainly I do." Held, that this did 
 was best to make it out. He said it not amount to the taking of an oath, 
 was not necessary. I told him there " An oath is a religious act by which 
 was a good deal of trouble about the party invokes God, not only to 
 taxes, and it was best to have an witness the truth and sincerity of his 
 affidavit and then there would be no promise, but also to avenge his im- 
 trouble." State ex rel. Youngs. Par- postureor violated faith." Arnold ». 
 ker, 33 K. J. L. 193. Post 159. Town of Middleton, 41 Conn. 206. 
 
ASSESSMENTS. 
 
 9 
 
 a hearing for equalization does not apply.® It is not within 
 the power of the legislature to provide for arbitrary assess- 
 ments, to be made without notice to the person assessed, 
 and without notice or opportunity to appear before a Board 
 of Equalization to have the assessment equalized or dis- 
 charged. Such attempt to make an assessment would not 
 constitute due process of law.®* 
 
 Where the statute requires these lists to be brought in, 
 and lodged with some public officer for inspection when 
 desired, the making of a list in each individual case is , 
 required; and where the tax payer neglects or refuses to 
 bring in a list, and the assessor is autliorized to make the 
 assessment from the best sources of information available, 
 ' a list should be made up and filed by him according to his 
 best information as to the property and its value, owned by 
 
 s Where a special assessment was 
 made by the County Treasurer of 
 property' overlooked by the County 
 Assessor, and the person assessed 
 furnished no statement, but applied 
 to the County Commissioners to 
 equalize the assessment, and the 
 Commissioners refused to entertain 
 the application for the reason that 
 no statement had been furnished; 
 held, the requirement to furnish a 
 statement did not apply to such as- 
 sessments. V. & T. E. K. Co. V. 
 County Commissioners of Ormsby, 
 5 Nev. 347. 
 
 6a A statute of California (Acts of 
 187.3--4, p. 477) provided that the as- 
 sessor might, at any time prior to 
 the fourth Monday in October In 
 each year,' specially assess any prop- 
 erty which had been omitted and not 
 regularly entered on the assessment 
 roll, and declared that all such spe- 
 cial assessments should be as .valid 
 and have the same force and effect 
 " as regular assessments." No provi- 
 sion was made for notice or demand to 
 the persons thus to be assessed for a 
 statement or list of their property, nor 
 for notice to appear before a Board 
 
 of Equalization, nor for equalization 
 of such assessments. An assess- 
 ment, without notice to the party 
 assessed having been made under 
 this act, the validity of this statute 
 was called in question upon an at- 
 tempt to enforce payment of the tax, 
 and four of the six judges hold this 
 feature of the act to be unconstitu- 
 tional. Justice McKiNSTEY used 
 the following language : " The Con- 
 stitution contemplates: First, assess- 
 ment by the assessor; second, action 
 by the County Board of Equaliza- 
 tion ; third, action by the State Board 
 of Equalization. Under section 9 
 of Article XIII, the tax-payer is en- 
 titled to notice of the meetings of 
 the Board of Equalization at which 
 his taxes may be increased. But the 
 9th section of the Act of 1873-4 
 attempts to provide for an assess- 
 ment by the assessor (of the city and 
 county of San Francisco), which is 
 arbitrary and absolute without the 
 possibility of equalization by tlio 
 Board of Supervisors, as it provides 
 for assessments to be made after the 
 time within which the board can act. 
 The legislature has no power thus to 
 
10 
 
 THE LAW OF ASSESSMENTS. 
 
 the party neglecting or refusingJ The list ought to show 
 on its face that it is made by the assessor for a person who 
 had failed or refused to furnish one. But whether such 
 list is necessary when the person served, fails or refuses to 
 return one, must be determined by the provisions and re- 
 quirements of the statute, and in such case the assessor cannot 
 make an arbitrary assessment. He must use his knowledge, 
 information and judgment.^ 
 
 deprive the citizen of an opportunity 
 to appear before the board for the 
 purpose of contesting the amount 
 assessed against him. The 9th sec- 
 tion is violative both of the Constitu- 
 tion and the Fourteenth Amendment 
 to the Constitution of the United 
 States." People v. Pittsburgh R. 
 Co. (No. 9867. Filed October, 30th, 
 1885.) 
 
 'In an action against assessors, 
 where lists were required, it appeared 
 that none had been furnished by the 
 plaintiff, and that none had been 
 prepared by the defendants, but an 
 assessment had been entered against 
 plaintiff on the assessment book. 
 The court held, that in order to 
 make a valid assessment it was neces- 
 sary that the assessors make up a 
 list. ' ' This value can only be ascer- 
 tained, for the purpose of assess- 
 ments, from the returns to be made 
 by the persons liable to taxation, 
 and in case of their failure or neg- 
 lect, by an estimate to be made by 
 the assessors, known in our country 
 by the word dooming. In whichever 
 of these modes the result is obtained, 
 it is equally required by law that a 
 list and valuation of each individu- 
 al's taxable property be made and 
 preserved for the inspection of all 
 interested in the assessment." 
 Thurston v. Little and others, 3 
 Mass., 433. 
 
 * " The statute imposes a penalty 
 for a failure or neglect to make out 
 a statement, which is the deprivation 
 
 of the right to have the assessment 
 made by the assessor equalized by the 
 board constituted for that purpose. 
 Yet he has still the right to insist 
 that the officer, who in such case 
 makes the assessment, shall dis- 
 charge his duty honestly, and that 
 he shall not knowingly and fraudu- 
 lently place an excessive valuation 
 on his property. Notwithstanding 
 the failure on the part of the tax- 
 payer to return a list when demand- 
 ed, it is no less the duty of the 
 assessor to be governed by just rules 
 and the fairest motives in making 
 the assessment of his property. Such 
 failure to comply with the demand 
 of the officer does not place the citi- 
 zen in the condition of an outlaw, 
 beyond the reach of law, or the pro- 
 tecting arm of a court of justice. 
 To a certain extent it is true the 
 statute expressly deprives him of a 
 right — that of obtaining relief before 
 the Board of Equalization. This 
 however, is the extent of the pen- 
 alty of the neglect. This takes from 
 him the right to claim any reduction 
 in the valuation of his property, if 
 the assessment has been honestly 
 made, although it may be exorbi- 
 tantly over-estimated; but does not 
 deprive him of the right to claim 
 relief in a court of justice against 
 an over-estimate, fraudulently and 
 purposely placed on the property; 
 he is deprived of all remedy for the 
 errors of the assessor, but not for 
 his fraudulent misconduc^." State 
 
ASSESSJIENTS. 11 
 
 The list, we have already seen, is not conclusive upon the 
 assessor as to values. It is not conclusive upon him in any 
 other respect, being required only in aid of the assessment, 
 unless specially made so by statute. If he has knowledge 
 of property overlooked or not included, or in case of real 
 estate if the description be defective, he may both include 
 the omitted property and assess, with proper description, 
 the property defectively described in the list. - 
 
 Sec. 5. Assessment Lists— requisites of.— Where a list is 
 required, making out a plan of the lands to be assessed, 
 marked in such manner as to show what lots had been sold 
 and what remained unsold, will not constitute compliance 
 with the statute; nor will it be sufficient to make a verbal 
 ' statement to the assessor ; nor to refer to a list made the 
 year before.^ Where a list is required or good cause shown 
 for not making one, in order to entitle the party to be heard 
 before a Board of Equalization, it is no good cause for not 
 making the list, that the assessor waived it. Assessors have 
 no power to make such waivei-. Every tax-payer is inter- 
 ested in the observance of the requirement.^ Nor will it 
 be a compliance with the law to bring in the list after the 
 time has expired within which it is to be furnished.* But 
 where a party returned his list within time without veri- 
 fying it, for the reason that the assessors told him he need 
 not do so, it was held that this omission should not preju- 
 dice the tax-payer. * 
 
 Sec. 6. Assessment RoU— defined. Its requirements manda- 
 tory.— The assessment roll consists of a statement of all the 
 names of tax-payers with a statement and description so 
 far as necessary, of all the taxable property of each, the 
 
 V. Central Pacific K. K. Co., 1 Nev. oath required upon an application 
 
 105. to have a mortgage deducted — not 
 
 1 Winnisimmet County v. Assessor, owned by the party and in which he 
 6 Cush. 480. had no interest— and intimated that 
 
 2 Id. 483. the deduction would be made, but 
 'Porter B. Commissioners, 5 Gray which was left standing, that the 
 
 366; People v. Koss, 15 How. Pr. party was in a position to make 
 
 K. 63. these objections to the assessment. 
 
 * Lowells, Commissioners, 3 Allen State ex rel. Wyckoff v. Creveling, 
 
 546. It was held in New Jersey 40 N. J. L. 151. 
 where the commissioners waived the 
 
12 
 
 THE LAW OF ASSESSMENTS. 
 
 value thereof, within the tax district, the rate of taxation 
 applied to such value, and carried into columns in such 
 mode as the statute requires. Where the statute pre- 
 scribes the form or matter to be contained in a certificate 
 or affidavit to be appended to an assessment roll, this re- 
 quirement must be strictlj', or at least substantially complied 
 with.^ It is competent, however, for the legislative au- 
 thority to provide that a failure or neglect in this respect 
 shall not invalidate the roll; as also to omit the require- 
 ment altogether.^ The requirements of the certificate or 
 
 ^ The law required the assessors' 
 certificate to be in tKe following 
 form: " We hereby certify, that we 
 have set down in tlie above assess- 
 ment roll all the real estate in the 
 
 township of liable to be taxed, 
 
 according to our best information; 
 and that we have estimated the same 
 at what we believe to be tlie true 
 cash value thereof; that the said 
 assessment roll contains a true state- 
 ment of the aggregate valuation of 
 the taxable personal estate of each 
 and every person named in said roll, 
 and that except in those eases where 
 the value of such personal estate has 
 been sworn to by the owner, his 
 agent or attorney, we have estimated 
 the same at its true cash value, ac- 
 cording to our best information and 
 belief." The certificate which the 
 assessors appended read in the fol- 
 lowing language : " We do hereby 
 certify that we have set down in the 
 prefixed assessment roil all the real 
 estate in the township of Fenton 
 liable to be taxed, according to our 
 best information; and that we have 
 estimated it at a sum which, for the 
 purposes of assessing, we believe to 
 be tlie true value thereof ; and also 
 that said assessment roll contains a 
 like true statement of tlie aggregate 
 of taxable personal property or 
 estate of each and every person 
 named in Said roll; and that, except 
 
 in such cases where the value of such 
 personal estate has been sworn to by 
 the owner or possessor, we have esti-. 
 mated the same at its just value; 
 according to the best of our informa- 
 tion and belief." 
 
 In passing on this certificate, the 
 court say that it does not comply 
 with the law, that " It is worse than 
 no certificate; for in that case it 
 miglit be presumed that the asses- 
 sors had done their duty or at least 
 had intended to do it. But it ap- 
 pears from the certificate, they put 
 the law at defiance, by taking upon 
 themselves to value the property at 
 such sum, for the purposes of asses- 
 sing, as they believed to be the true 
 value thereof. The language of the 
 certificate is, ' we have estimated 
 it at a sum which, for the purposes 
 of assessing, we believe to be the 
 true value thereof.' Whether, for 
 the purposes of .assessing, the value 
 of property is double what it would 
 bring at a sale for cash, or the half 
 or a quarter of that sum we have no 
 means of knowing, nor is there any 
 known rule by which it can be ascer- 
 tained. The law, and not what 
 might be nothing more than the 
 whim or caprice of the assessors, 
 must govern." Clark v. Crane, 
 5 Mich. 151. 
 
 2 Section 3652 of the P. C. of Cali- 
 fornia prescribes the form and matter 
 
ASSESSMENTS. 13 
 
 affidavit to the assessment roll, unless otherwise provided 
 by statute, are mandatory and not directory merely.^ 
 
 Sec. 7. Assessments, made periodically, cannot be changed 
 after time for making same.— Assessments for general taxable 
 purposes are' made periodically — usually once each year and 
 within a prescribed date. 
 
 In some states all persons are assessed with reference to 
 their ownership of property and upon their wealth on a 
 certain day of the year and sometimes at a particular hour 
 of a specified day in the year.^ Where such legal provision 
 exists, each tax-payer is liable to be assessed for the property 
 and on the wealth owned by him on the particular day 
 without regard to subsequent changes in the ownership of 
 property from any cause. Where a sale or exchange of 
 property takes place after the day fixing the liability to 
 assessment and taxation, the seller and buyer must each 
 be assessed on the property he owned before the sale or 
 exchange, and on the day or fraction of a day fixing the 
 liabilitj'-, and not with respect to any changes caused by sale, 
 
 of the affidavit of the assessor to he March." Sec. 8, Art. XIII. Consti. 
 appended to the assessment roll, but Cal. In Wisconsin the statute pro- 
 also provides that "the failure to vldes that "all personal property- 
 take or make such an affidavit or any shall be assessed as of the first day 
 affidavit, will not in any manner affect of May in such year." Under this 
 the validity of the assessment." statute a question arose in the as- 
 
 * In Washington T., in addition sessment of a corporation dealing i u 
 
 to other requirements the affidavit coal, whether the valuation should 
 
 must state that the assessor has not be the average value of the stock 
 
 imposed "any unjust assessment kept during the year, which was 
 
 through malice or ill will nor allow- $.30,000, or the value only of the 
 
 ed any one to escape a just and property on hand on the first day of 
 
 equal assessment, through favor or May, which was $10,000; and the 
 
 reward," &c. Sec. 2872, Code W. T. court held that the value only of the 
 
 'The new constitiition of Cali- property on hand May 1st should 
 
 fornia has this provision: "The be assessed to the corporation. This 
 
 Legislature shall bylaw require each decision was placed on the wording 
 
 tax-payer of this state to make and of the statute, that " no change of 
 
 deliver to the County Assessor, an- location or sale of any personal 
 
 nually, a statement, under oath, property after the first day of May 
 
 setting forth specifically all the real in any year shall affect the assess- 
 
 and personal property owned by ment made in such year. Pennsyl- 
 
 such tax-payer, or in his possession, vania Coal Co. b. Forth, 23 N. W. 
 
 or under his control, at twelve Kep. 105 (Wis.) 
 o'clock meridian, oh the first day of 
 
14 
 
 THE LAW OF ASSESSMENTS. 
 
 purchase or destruction of property after such date. No 
 change can be made in the assessment by the assessor, by 
 which a buyer, after the date fixing the liability, will stand 
 assessed for the property purchased, and the seller for the 
 purchase money .^ Nor can property brought into the dis- 
 trict or purchased therein after such date, be assessed to the 
 owner ; but the person owning the property on the date 
 the liability attaches, and he alone is subject to assessment 
 therefor.^ 
 
 Sec. 8. Assessments — by whom and ho'w made — form; effect 
 of not stating taxes separately.— The assessment is made by 
 the assessor or other proper officer elected or appointed for 
 
 ''Where the day fixing liability 
 was July 1st, C. sold his farm to F. 
 on the 6th of .July, taking his agree- 
 ment in writing to pay the taxes 
 thereon for that year. The law re- 
 quired the assessors to complete the 
 assessment roll by the 1st of August. 
 The assessment was made within 
 the proper time, the farm being 
 assessed to C, and F. being assessed 
 for the purchase money. Notice of 
 review of the assessment roll was 
 served for August 18th, when on 
 request of F. the assessors changed 
 the assessment by assessing the farm 
 to F. and the purchase money to C. 
 as personal property. It was held 
 that this change was without au- 
 thority and the assessment to C. of 
 the purchase money was erroneous ; 
 that while the assessors could, within 
 the time allowed to make up the 
 assessment roll, reverse the assess- 
 ments by them made, and might 
 reduce the value of real or personal 
 property assessed on the roll to in- 
 dividuals and fix the same as they 
 might deem just after a hearing, yet 
 they could not, during the time given 
 for a review and a revision of the 
 assessment as made, place upon the 
 roll other property or essentially or 
 materially change the roll, by adding 
 to the assessment of individuals other 
 
 property — especially by assessing 
 them for property acquired after the 
 time limited for the preparation of 
 the roll. Clark v. Norton, 49 N. Y. 
 247-8. It would seem that in Iowa 
 the auditor has a right to make the 
 names in the "transfer books" cor- 
 respond with the names of the 
 owners of lands. Adams v. Snow, 
 21 N. W. Rep. 765 (Iowa). 
 
 ^The statute of Iowa provided 
 that "all taxable property shall be 
 taxed each year and personal prop- 
 erty shall be listed and assessed each 
 year in the name of the owner 
 thereof on the first day of Jan- 
 uary. 
 
 A resident of Ohio, on the eleventh 
 day of January purchased a stock of 
 goods with money he brought from 
 Ohio and afterwards, in February 
 and March, purchased at places 
 without the state of Iowa additional 
 goods and added them to the stock 
 first purchased. In April following, 
 the owner of these goods was as- 
 sessed for this property. The ques- 
 tion was, whether the assessment 
 was merely erroneous, or illegal. If 
 erroneous merely, the party aggrieved 
 ought to have applied to the Board 
 of Equalization for relief, but if 
 illegal, such application was unnec- 
 essary. Under this statute, requiring 
 
ASSBSSMBNTS, 15 
 
 that purpose : who enters in what is called an assessment 
 roll the names of owners of taxable property with a list or 
 description of their taxable real and personal property and 
 its value, together with the amount of tax assessed thereon. 
 When the name of the owner of taxable property is un- 
 known the property is assessed to unknown owners. The 
 form of the assessment roll is usually the subject of statu- 
 tory regulation. When a form is prescribed, the assessment 
 must, at least substantially, conform to it. It is a sub- 
 stantial right of the person assessed to be informed by the 
 assessment roll itself, as to the character of each item of the 
 total tax ; whether each is in kind and amount such as the 
 law levies, so that he niay pay or offer to pay the amount 
 of any tax which he believes to be authorized by law and 
 resist the payment of any which he deems to be illegal.^ 
 When the law requires the property assessed to be described 
 or scheduled separately, and the value and taxes against 
 each article or class of property to be carried into separate 
 columns and this is not done, but the taxes carried simply 
 into one column of aggregates, the assessment is invalid.^ 
 The reason is, a right of the tax-payer is disregarded and the 
 courts, when such is the case, will not inquire whether he 
 is injured but will presume that he was.^ But it seems, the 
 same result does not follow where the statute directs that 
 several district taxes, levied upon the same property, be 
 aggregated and inserted in a single column and one or more 
 
 personal property to be assessed to petent authority, and for a lawful 
 
 the owner, the court held the assess- purpose, while another may be alto- 
 
 ment to be Illegal and enjoined the gether unwarranted. A confusion 
 
 collection of the tax. Wangler Bros, of the several taxes cannot take 
 
 V. Black Hawk Co. and others, 9 N. place without invalidating the entire 
 
 W. Kep. 314 (Iowa). assessment." (p. 163). 
 
 1 People V. Owyhee, M. Co. 1 Ida. '" It is no answer to say the plain- 
 
 416; People ». Moore, id. 663-7. tiflf has sustained no injury. Courts 
 
 ^People V. Moore, id. 666-7; cannot speculate as to the probable 
 
 Cooley on Taxation 295. Mr. Black- or possible injury resulting from a 
 
 well, in his work on Tax Titles, departure from the statutoiy regula- 
 
 says: — " la the assessment of taxes, tious, touching the performance of 
 
 the state, county, city, road, school, official duty in matters affecting the 
 
 and other taxes, ought to be kept rights of person or property of 
 
 separate, and not blended together, others. Clark v. Norton, 49 K. T. 
 
 One tax may be levied by com- 248. 
 
16 
 
 THE LAW OF ASSESSMENTS. 
 
 of such taxes are carried into separate columns. The reason 
 given is, that no one can be injured by this departure 
 from the strict letter of the statutory directions, and that 
 no one can complain.* Assessors act ex parte, and unless 
 they keep within the provisions of the statute their acts are 
 illegal and their assessments invalid.^ 
 
 Sec. 9. Adaptability to form.— Where subsequent legis- 
 lation, providing for the assessment of a particular class of 
 property not previously provided for, does not prescribe, in 
 detail, the form to be used in making the assessment, a 
 slight departure from the pre-existing form will not always 
 invalidate the assessment.'- 
 
 * Wall ». Trumbull, 16 Mich. 240-1. 
 
 ^This point was expressly ruled 
 by the Court of Appeals in New 
 York in a case wherein the statute 
 required lands to be assessed to the 
 owner or occupant if the owner 
 lived in the ward or district, if not, 
 to be assessed as non-resident lands; 
 which provision had been disre- 
 garded, by assessing the land to one 
 who had neither the ownership nor 
 possession of the land, in the fol- 
 lowing language: "But the asses- 
 sors have no jurisdiction to assess 
 except as the statute prescribes; and 
 unless they pursue the directions of 
 the statute, the assessment is unau- 
 thorized and void." Whitney v. 
 Thomas, 2.S N. Y. 285. 
 
 ■ In New York the statute of 1853 
 prescribed the form o€ the assess- 
 ment roll and directed that the 
 amount of the capital stock of a 
 corporation, paid or secured to be 
 paid, should be set down in one of 
 the columns of the assessment roll. 
 A statute passed in 1857 provided 
 that " The capital stock of every 
 company liable to taxation, except 
 such part of it as shall have been 
 excepted in the assessment roll, or 
 shall have been exempted by law, 
 together with its surplus profits or 
 
 reserved funds exceeding ten per 
 cent, of its capital, after deducting 
 the assessed value of Its real estate, 
 and all shares of stock in other cor- 
 porations actually owned by such 
 company, which are taxable upon 
 their cajiital stock under the laws of 
 this state, shall be assessed at its 
 actual value, and taxed in the same 
 manner as the other real and per- 
 sonal estate of the county." The 
 objection to an assessment of the 
 capital stock of a corporation being 
 that this was not done, in reply 
 thereto the court used the following 
 language:— "That Act (of 1857), it 
 is true, does not go into detail as to 
 the form of the roll; but if the in- 
 tent be clear, as we think it is, to 
 assess the capital at its real, as dis- 
 tinguished from its nominal value, 
 the form can easily be accommodated 
 to give effect to the intention. Such 
 a reconciling construction is often 
 required to be given to remedial and 
 administrative statutes, which are 
 sometimes drawn up in haste, and, 
 without prescribing the manner in 
 which the directions of the legisla- 
 ture are to be carried out." Oswego 
 Starch Factory v. Dolloway, 21 N. 
 461. 
 
ASSESSMENTS — BY WHOM MADE. 
 
 17 
 
 CHAPTER II. 
 
 ASSESSMENTS — ^BY "WHOM MADE. 
 
 Sec. 10. The proper ofiScer must m^ke assessments. — An 
 Assessment can only be made by the officer designated and 
 authorized by law to make it. Where the organic law desig- 
 nates the officer by whom assessments for taxation are to 
 be made, it is not within the power of the legislature to 
 authorize any other officer or person to make the assess- 
 ment.^ But in the absence of such inhibition, the legisla- 
 
 ^ By the old constitution of Cali- 
 fornia it was provided that assessors 
 and collectors of town, county and 
 state taxes should be elected by the 
 qualified electors of the district, 
 county or town in which the prop- 
 erty taxed for state, county and 
 town purposes was situated. This 
 provision requires that every assess- 
 ment be made by an assessor elected 
 by the qualified electors of the tax 
 district. The officer must have been 
 elected by the qualified electors of 
 the town, district or county for the 
 term during which the officer acted, 
 or he must have been appointed to 
 fill a vacancy for an unexpired por- 
 tion of such term. Where the 
 sheriff was elected to fill a term of 
 office as sheriif and tax collector of 
 the county, and during the term an 
 act was passed creating the office of 
 tax collector of the county, to take 
 effect immediately, and a person was 
 appointed to fill the office until the 
 election of a tax collector, it was 
 held that the person so appointed 
 could not exercise the privileges of 
 the office, not having been elected 
 by the qualified electors of the tax 
 district. People v. Kelsey, 34 Cal. 
 473. "A tax, in order to be valid, 
 2 
 
 must rest upon an assessment made 
 in the mode prescribed by law and 
 by an assessor elected as provided 
 for by the constitution." People v. 
 Hastings, 29 Cal. 450. For the facts 
 in this last-named case see n. 2, sec. 
 3. Under this constitutional provi- 
 sion a law was held to be unconsti- 
 tutional which provided for the 
 assessment of a railroad "when 
 there were several revenue districts 
 in the same county," that "the 
 whole length of said road in said 
 county shall be assessed in the rev- 
 enue district in which the county 
 seat is or may be located." People 
 V. P. & S. V. K. R. Co., 34 Cal. 656. 
 A township road tax levied by the 
 supervisors of the county and as- 
 sessed by the county assessor, who 
 at the same time made the assess- 
 ment for state and county taxes, 
 was also held to be repugnant to 
 this provision of the constitution: 
 "As the road tax involved in this 
 case does not rest upon an assess- 
 ment made by an assessor elected by 
 the qualified electors of the town- 
 ship where the property assessed 
 was situated, it cannot be sustained." 
 People V. Sargent, 44 Cal. 434. 
 
IS THE LAW OF ASSESSMENTS. 
 
 ture may designate an officer or person other than the one 
 filling the office of an assessor to make assessments. 
 Provision is sometimes made for the assessment of prop- 
 erty overlooked or which may have been brought into the 
 tax district within the financial year, after the assessor has 
 closed his assessment roll, and such assesment may be 
 made by tax collectors under authority of statutory law ; ^ 
 but in such cases, it is necessary to provide for a hearing 
 before a board of equalization or other tribunal before the 
 assessment is final or conclusive. The values fixed by 
 assessors and boards of equalization appointed to review 
 the same, become final, and the courts cannot review the 
 same except for fraud.* 
 
 Sec. 11. Officer de jure and de facto. — An officer de jure, 
 being the person authorized by the law to do the act, no 
 question can arise as to his authority to make the assess- 
 ment, but where the assessment is made by an officer de 
 facto, is it equally valid ? Before proceeding to determine 
 the question, it may be profitable to ascertain the character 
 of an officer de facto. Lord Exjlbnboeough defined an 
 officer de facto to be — " one who has the reputation of be- 
 ing the officer he assumes to be, and yet is not a good offi- 
 cer in point of law" — and this definition has been followed 
 in the American courts.^ A more comprehensive definition 
 
 ^ A statute of Nevada made it the missioners of Ormsly Co., 5 Nev. 
 
 duty of the county treasurers, in 342. 
 
 tlieir capacity as ex officio tax re- ' Tax-payers must submit to the 
 ceivers, between the third Monday values fixed by the assessors and 
 of October and the third Monday in boards of equalization unless they 
 December, to assess any person or can show that the values were 
 property in all cases where the "fraudulently made, or that the 
 county assessor neglected or omitted property was not liable to taxation, 
 to assess, or where property had been or that the legislature has, in au- 
 brought into the county since the thorizing the tax, disregarded or 
 closing of the assessment roll. The transcended the principles of equal- 
 act provided for application to the ity, or where a tax has been levied 
 Board of County Commissioners when not authorized by law. Re- 
 when any person felt aggrieved by public I/ife Ins. Co. v. PoUak, 75 
 any such assessment, to have the 111. 294-5. 
 
 same "equalized, modified or dis- ^Hildreth v. Mclntire, 19 Amer. 
 
 charged." This act was held to be Decis. 63, note, 
 valid. V. & T. E. E. Co. v. Com- 
 
ASSESSMENTS — BY ■WHOM MADE. 19 
 
 was given in the Supreme Court of Connecticut in the fol- 
 lowing language. — "An officer cZe/acfo is one whose acts, 
 though not those of a lawful officer, the law upon princi- 
 ples of policy and justice will hold valid, so far as they 
 involve the interest of the public and third persons, where 
 the duties of the office are exercised ; 1. Without a known 
 appointment or election, but under such circumstances of 
 reputation or acquiescence as were calculated to induce 
 people, without inquirj'-, to submit to or invoke his action, 
 supposing him to be the officer he assumes to be : 2. Under 
 color of a known and valid appointment or election, but 
 where the officer has failed to conform to some precedent re- 
 quirement or condition, as to take an oath, give a bond, or 
 the like : 3. Under color of a known election or appoint- 
 ment, void because the officer was not eligible or because 
 there was a want of power in the electing or appointing 
 body, or by reason of some defect or irregularity in its 
 exercise, such ineligibility, want of power or defect, being 
 unknown to the public : 4. Under color of an election or 
 appointment by or pursuant to a public, unconstitutional 
 law, before the same is adjudged to be such."^ 
 
 The definition here given has been recognized in a large 
 number of cases, where the question has been judicially 
 passed upon.^ The rule here stated, is applied to all officers 
 whether judicial, executive or ministerial, and also applies 
 to the office of assessor as will appear by adjudged cases. 
 
 Sec. 12. OfEcer de jure and de facto, Continued. — In an 
 action of ejectment arising upon a sale for delinquent taxes 
 made in the District of Columbia, no proof was offered to 
 show the right of the person who made the assessment to 
 act as such : evidence only of the assessment lists, made by 
 the person acting as assessor ; his returns ; action thereon by 
 the board of appeals, and the tax books made from these 
 lists, was produced. The question thereupon arose whether 
 it was necessary to exhibit also proof of the regular appoint- 
 ment of the assessor, and the court held that it sufficiently 
 appeared that he acted under the authority of the corpora- 
 
 2 State V. Carroll, 38 Conn. 449. 
 
 ' Brady v. Theritt, 17 Kan. and cases there cited. 
 
20 THE LAW OF ASSESSMENTS. 
 
 tion, the highest evidence of which was the sanction which 
 had been given to his returns.^ On the principle that 
 courts take judicial notice of the fact who it is that fills any 
 public of3fice and the genuineness of his signature, it is not 
 necessary to prove the signature of the tax collector who 
 executed a deed for lands sold to pay delinquent taxes.^ 
 But where an assessment is made by one appointed for the 
 special purpose, it must appear on the face of the proceed- 
 ings that he had the requisite qualifications.' 
 
 Sec. 13. OfScer de jure and de facto, Continued. — The rules 
 of law applicable to officers de jure and de facto, were 
 reviewed and applied in the Supreme Court of Iowa in a 
 suit brought to set aside a deed executed upon a tax sale. 
 Assessors in that state were elected for townships and also 
 for incorporated towns ; the former served as assessors for 
 townships outside of incorporated towns, and the latter for 
 the district composed of incorporated towns. At the gen- 
 eral election one Arnold was elected assessor for Fairview 
 township, and at the same election one Dott was elected for 
 Anamosa, an incorporated town in this township. All the 
 voters voted for both these persons, — as well those within as 
 those outside of the town of Anamosa. The Wapsipinicon 
 river divided Fairview township — Anamosa, being north 
 of the river. From 1863 until after the assessment in 
 question it was the custom of the assessor of Anamosa, to 
 
 ^ Eonkerdorf u. Taylor's Lessee, particular case one of the commis* 
 
 4 Pet. 359. sioners being disqualified the board 
 
 ^Wetherbee v. Dunn, 32 Cal. 108. appointed another person to fill his 
 
 'Under the charter of Jersey City place, but it did not appear that the 
 
 the Board of PubUc Works were person so appointed possessed the 
 
 required to appoint three discreet requisite qualifications; and it was 
 
 persons, residents and freeholders of held that this defect vitiated the 
 
 Jersey City, to be commissioners of proceedings. "The distinction is 
 
 assessments, who held their oflBces between commissioners appointed to 
 
 for one year, and whose duty it was serve as officers of the corporation, 
 
 to make all assessments for improve- for a specified term, and those ap- 
 
 ments authorized by the charter; pointed for a particulai«base. In the 
 
 and in case any one of them should former instance, it ^eed not affirma- 
 
 be interested in any matter of assess- tively appear that they had the pre- 
 
 ment the board were required to scribed qualifications ; in the latter it 
 
 appoint one possessing like qualifi- must appear." State ex rel. Harris u. 
 
 cations to fill his place. In the Mayor of Jersey City, 38 X. J. L. 86. 
 
ASSESSMENTS — BY WHOM MADE. 21 
 
 assess all the land lying north of the river, not included 
 within the town of Anamosa, and in 1866 Dott, as assessor 
 of Anamosa, assessed the lands in controvers_y, which were 
 outside of the town but north of the river, and the lands, in 
 1867 were sold for delinquent taxes. Two questions were 
 i-aised. 1. Was Dott assessor de jure or de facto of Ana- 
 mosa ? 2. Was the assessment made by him, of the land 
 lying outside of the town, valid as the act of an ofScer 
 de facto ? On the first proposition it was held that : 
 " While the election of Dott was irregular, he may be 
 regarded as the assessor de facto of the town of Anamosa, 
 and all his acts as such, within the limits of his official 
 powers, are valid so far as they involve the interests of third 
 persons and the public." On the other proposition it was 
 held that the assessment was not valid as the act of an 
 officer de facto ; that Dott did not act as assessor of Fair- 
 view township, but as assessor of Anamosa, and when 
 making this assessment exceeded his jurisdiction; that "In 
 order to support the acts of one on the ground that he is a 
 de facto officer, they must be done under color of the office, 
 the duties of which must have been assumed and discharged 
 by the person claiming to fill the office. This, we think, is 
 essential to give one the character of an officer de facto, 
 and render his acts valid.'''' It w^s also held that the fact 
 that "Dott made the assessment under a custom extending 
 his powers and duties in a manner and to subjects unau- 
 thorized by law " — could not make his acts valid, as customs 
 of this kind cannot abrogate the law.* It has been recently 
 held that where the imposition of the tax was authorized 
 by law, courts will not inquire whether the persons imposing 
 it are officers de jure or de facto; "so the officers are acting 
 in and discharging the duties of the office, is all the court 
 
 will require." ^ 
 
 Sec. 14. Deputies or Assistants. — When the assessor 
 is authorized to appoint deputies or assistants, the same 
 rules apply when the assessment is made by the de- 
 puty. Where the law required that an assistant, before 
 
 iBaileyo.Msher, 38 Iowa 229-231. „o tii fim o 
 
 'Uu Page County v. Jenks, 65 111. 286; Hansen v. Minor, 22 111. 601-A 
 
22 
 
 THE LA"W OF ASSESSMENTS. 
 
 entering upon his duties, should be sworn and a cer- 
 tificate of that fact should be filed in the collector's 
 office, and the assistant was in fact sworn but no certificate 
 of that fact was filed, it was held that the act omitted was 
 merely directory and should not prejudice the rights of the 
 purchaser under the sale for the delinquent taxes. It was 
 further held that inasmiich as there was no record of the 
 oath required, the party taking it was competent to prove 
 the fact that he was sworn.^ Where the legislature have 
 authority to create the office of assessor, it has also the 
 power to make provision for deputies and assistants with 
 power, in the name of the principal, to do the same official 
 ucts.^ But where a deputy executes a deed in the name of 
 his principal, the acknowledgment should certify, not that 
 the principal executed it, but that the deputy executed it 
 as such deputy.^ 
 
 5 2 Greenl. 218; Farnsworth Co. 
 V. Rand, 65 Me. 21. 
 
 2 Meek v. McClure, 49 Cal. 626. 
 
 'Where it was tlie official duty of 
 the county clerk to execute tax 
 deeds and a deputy clerk executed a 
 deed in manner following: "Henry 
 Miller, County Clerk of Marathon 
 County, Wis. By John W. Miller, 
 Deputy" — ^aud the certificate of ac- 
 knowledgment was in the following 
 language: — .... "personally came 
 .John W. Miller, deputy county clerk 
 of Marathon county, to me known 
 to be the person who executed the 
 above deed, and acknowledged the 
 execution thereof by him as such 
 coimty clerk for the uses and pm-- 
 
 poses therein mentioned ; " In 
 
 answering the objections to the cer- 
 tificate of acknowledgment to this 
 deed the court used the following 
 language: "The deed was properly 
 
 executed by the deputy clerk in the 
 name of the clerk. To us it seems 
 very clear that the acknowledgment 
 of the deed is sufficient to entitle it 
 to record. The object of an ac- 
 knowledgment is to verify the fact 
 that the person whose name is sub- 
 scribed to the deed did in fact 
 subscribe the same as his deed; or, 
 if he signed it as deputy or agent, 
 that he subscribed it for his prin- 
 cipal. ..... The recitation in the 
 
 acknowledgment is that John W. 
 Miller, deputy county clerk, etc., 
 appeared before the acknowledging 
 officer, and that he acknowledged 
 the execution of the deed by him as 
 such county clerk, &c. The words 
 ' as such county clerk ' evidently 
 means, ' as such deputy county 
 clerk.' " Ward v. Walters, 22 N. W. 
 Eep. 844, {Wis.) 
 
ASSESSOR — LIABILITY OF. 23 
 
 CHAPTER III. 
 
 ASSESSOR — LIABILITY OF. 
 
 Sec. 20. Assessor not liable for his acts when erroneous 
 merely.— It maj- be stated as a general rule that if the assessor 
 or other officer making an assessment has no jurisdiction 
 over the person or property assessed, he makes himself per- 
 sonally liable to any one who is injured by his acts ; but, on 
 the other hand, if he have jurisdiction over the person 
 or property he assesses, he is not individually liable for any 
 error of judgment committed in making the assessment. 
 In respect to liability for his acts, an assessing officer's posi- 
 tion is not materially different from that of any other 
 officer, judicial or ministerial. If a person residing in his 
 assessment district be entitled to an exemption as to any of 
 the property or its value, and he erroneously refuses to 
 allow the exemption, having jurisdiction to make the as- 
 sessment, he is not liable for this error. ^ In a case where 
 the assessors fixed a valuation on shares of a national bank 
 contrary to the provisions of the National Bank Act, they 
 
 ^ In the case of Weaver ». Diffen- " That the assessors were judges act- 
 dorf and others, defendants were sued ing clearly within the scope and limit 
 for refusing to allow the plaintiff an of their authority;" that they acted 
 exemption, to which he was entitled impartially in the performance of a 
 as a minister of the gospel. They public duty and not as volunteers ; 
 had jurisdiction over both the person that their action was in its nature 
 and the property, but in making up judicial, and they were not liable 
 the valuation, refused to deduct fif- however erroneous or wrongful their 
 teen hundred dollars, as an exemp- determination may have been. The 
 tion allowed to ministers of the gos- valuation placed on plaintiff's prop- 
 pel : but the court held that the erty was $1,800, while the exemp- 
 action would not lie against the de- tion allowed to a minister of the 
 f endants in their individual capacity, gospel was $1,500, showing the plain- 
 for the reason that in making the tiff to be liable 'to an assessment; 
 valuation of plaintiff's taxable prop- and the amount fixed was an error 
 erty they acted judicially, and had merely and not an assumption of 
 jurisdiction both of the person and jurisdiction where none existed. 
 property to make the assessment : 
 
24 THE LAW OF ASSKSSMENTS. 
 
 were held not to be individually liable. ^ Where it becomes 
 necessarj' to determine a non jurisdictional fact, or a fact not 
 involving the right to make the assessment, and such fact is 
 by the assessor determined erroneously, or when, under sim- 
 ilar circumstances the question to be determined is one of 
 law, the assessor is not personally liable. It is held in some, 
 if not most of the states, that in making assessments, where 
 they have jurisdiction, these ofScers act judicially. ^ They 
 are required in the exercise of their jurisdiction to decide 
 all questions involved in the discharge of their official 
 duties, both of fact and law. Within the exceptions stated, 
 they are not responsible for their errors or mistakes. All 
 lands are to be assessed to the owner, if known, if not, to 
 unknown owners ; but in the state of New York, where 
 they are owned by a resident — to the owner or occupant; 
 and if owned by a non-resident, they are to be assessed " as 
 non-resident land." Here, the assessor must determine a 
 fact, in making the assessment — whether the land is owned 
 by a resident or a non-resident. An error or mistake in 
 deciding this fact does not render him personally liable ; 
 nor does it defeat the assessment. In the same state an 
 
 2 Weaver v. Diffendorf and others, facts, and then whether these facts 
 
 3 Denio 117 ; Williams v. Weaver et made it non-resident land. The 
 
 al. 75 N. Y. 34. question of law seems not to be a 
 
 ^ In passing on the question of the plain one. as the Supreme Court in 
 liability of assessors for their acts the the Eighth District has decided it one 
 Court of Appeals say: " The assess- way and the Superior Court of Buf- 
 ors are quasi judicial officers, and falo the other way. In such a case 
 the assessment roll, when finally it cannot be that the assessors are to 
 completed by the supervisors of the determine at their peril. Oh the con- 
 county stands as a judgment trary, I have no doubt that, which- 
 
 It is now settled that assessors, in ever way they decide, they have the 
 
 making assessments in all cases where immunity of judicial officers ; and as 
 
 they have jurisdiction, act judicially, they will be protected, all persons 
 
 In exercising this jurisdic- who act upon their assessment in en- 
 
 tion, they were to decide not only forcing the tax will have equal pro- 
 all questions of fact involved, but tection." Buffalo and State L. R. 
 also all questions of law. Among E. Co. v. Supervisors of Erie County, 
 other things they were to determine 48 N. Y. 99, 105; see also Bar- 
 whether this land was to be assessed hyte v. Shepherd, 35 N. Y. 252; 
 as resident or non-resident land, and Swift v. City of Poughkeepsie, 37 
 that was a question of both law and N. Y. 513. 
 fact. They were to determine the 
 
ASSESSOR — LIABILITY OF. 25 
 
 exemption to the extent in value of fifteen hundred dollars 
 was allowed to clergymen. Erroneously refusing to allow 
 this exemption does not make the assessor liable to damages. * 
 
 Sec. 21. Assessor— personally liable for his acts when with- 
 out authority.— Whenever the assessor has no power to make 
 the assessment, either for want of jurisdiction or for the 
 reason that the property is not taxable, or for other cause, 
 his acts are illegal, and he may be held personally responsi- 
 ble for his acts, and this responsibility attaches to all per- 
 sons who attempt to enforce the assessment. 
 
 A want of jurisdiction over the person or property, 
 whether arising out of fact or law, always renders an as- 
 sessment illegal. The good faith of the assessor, his hon- 
 esty of purpose to act within the scope of his jurisdiction 
 and powers, both combined, will not exonerate him nor 
 make legal, acts which are in themselves illegal.^ An as- 
 sessment of property not subject to taxation would consti- 
 tute an illegal assessment, and an error in judgment on 
 part of the assessor in determining whether or not the prop- 
 erty is subject to taxation will not excuse him from liability 
 
 * Under the statute, every minister estate of the party are within the 
 
 and priest was to have $1,500 ex- jurisdiction of the assessor. The 
 
 emption; but if their real and per- assessors were not ousted of juris- 
 
 sonal property exceeded in value diction to decide the claim of ex- 
 
 $1,500 or if either exceeded that sum emption while the party was a 
 
 in value, the excess was subject to resident and possessed of property 
 
 taxation. In making an assessment otherwise liable The de- 
 
 i)f a minister or one who claimed to fendants had jurisdiction of the 
 
 be such and who claimed the ex- subject matter of their proceeding, 
 
 emption, the assessors disregarded and of the person of the party in- 
 
 his claim and included the entire terested That the action 
 
 value of his property. After pay- of the defendants in adjudicating 
 
 ment of the tax, suit was brought upon the plaintiff's claim is judicial 
 
 against the assessors for the amount and does not expose them to legal 
 
 of the tax on $1,500. After notic- liability for an erroneous decision, is 
 
 iug the personal liability of assessors also sustained by the authorities." 
 
 in determining the fact of a residence Barhyte v. Shepherd, 35 K. T. 245- 
 
 of persons whom they assess, at their 252. 
 
 peril the court say : " It is not neces- ^ In California, the stattite made it 
 sary to extend the application of the the duty of the sheriff, as collector 
 rule on any ground of public policy, of taxes, to collect immediately all 
 that I can perceive, so as to include taxes assessed upon personal prop- 
 cases of mistake in deciding a claim erty of persons who had no real 
 to exemption, where the person and estate within the county. An as- 
 
26 
 
 THE LAW OP ASSESSMENTS. 
 
 to a party injured.^ The rule is thus stated by the learned 
 judge in the case last cited : " When they (the assessors) 
 have no power to act at all in a given case, either as to 
 person or property, their acts are void. So when 'their 
 right to act depends upon the existence of some fact, which 
 they erroneously determine to exist, their acts are void. So 
 in performing a ministerial duty, their acts are void if not 
 in accordance with law. But having jurisdiction of the 
 person and subject matter, if they err in the exercise of 
 it, they are protected." * 
 
 Sec. 22. Assessors — personally liable for acts ■when, in de- 
 termining a fact in favor of jurisdiction, they err. — From what 
 
 sessment having been made by the 
 county assessor against the owner of 
 a band of cattle being driven from 
 an adjoining county to the state of 
 Kevada, on refusal of the owner to 
 pay the tax the sheriff seized and 
 sold a part of the cattle to enforce 
 payment and costs of collection; but 
 the cattle were held not to be sub- 
 ject to taxation in the county, and 
 the assessment was adjudged to be 
 illegal, and the sheriff personally 
 liable for the value of the cattle 
 sold, with interest from date of sale. 
 Dorsey v. Manlove, 14 Cal. 554. 
 
 ^ An assessment was made in New 
 York of the capital stoclc of the Na- 
 tional Bank of Chemung, and the 
 question arose upon the legality of 
 the assessment under a statute of the 
 state which is in the following words : 
 "No tax shall hereafter be assessed 
 upon the capital of any bank or 
 banking association organized under 
 the authority of the state or of the 
 United States, but the stockholders 
 in such banks and banking associa- 
 tions shall be assessed and taxed on 
 the value of their shares of stock 
 therein." 
 
 In an elaborate opinion the New 
 York Court of Appeals reviewed the 
 cases distinguishing between an er- 
 roneous and an illegal assessment, 
 
 using the following language : " The 
 distinction is between an erroneous 
 and an illegal assessment. The for- 
 mer is when the otficers have power 
 to act but err in the exercise of the 
 power; the latter where they have 
 no power to act at all, and it does 
 not aid them to decide that they 
 have. , It is argued that they have ju- 
 risdiction to determine what property 
 is taxable in the town. This is a 
 mistake. The legislature determines 
 that question, and the oiHcers have 
 no power over it. The statute re- 
 quires the assessors to ' ascertain, by 
 diligent inquiry,' two things: 1. The 
 taxable inhabitants. 2. The taxa- 
 ble property. Where they decide 
 erroneously as to a taxable inhabi- 
 tant it is conceded, and the Mygatt 
 Case (15 N. Y.) holds, that they are 
 liable as trespassers. Why not when 
 they err as to taxable property ? The 
 duty is precisely the same, and the 
 power conferred in the same lan- 
 guage. Assessors must have juris- 
 diction over the person and subject 
 matter. The person must be an in- 
 habitant of the town and the prop- 
 erty must be taxable; otherwise the 
 assessment is illegal and void." Na,- 
 tional Bank of Chemung v. Elniira, 
 53 N. Y. 52-58. 
 8 Id. 53. 
 
ASSESSOR — LIABILITY OP. 
 
 27 
 
 has already been stated, it sufficiently appears that asses- 
 sors, when their jurisdiction depends upon the existence or 
 non-existence of a fact, and they err in favor of their juris- 
 diction, their acts are void and they are individually liable, 
 notwithstanding they act judicially in determining such 
 fact.^ The same result follows when their jurisdiction de- 
 pends upon a question of law, and they erroneously deter- 
 mine the question in favor of their jurisdiction. 
 
 ^ This doctrine was judicially an- 
 nounced and declared in a case in- 
 volving the following facts : The 
 law made it the duty of the assessors 
 "to ascertain, by diligent inquiry, 
 the names of the taxable inhabi- 
 tants " in their towns and wards 
 between the first days of May and 
 July each year. The assessors were 
 allowed the privilege of dividing the 
 county into convenient districts, and 
 each, within his district, made up 
 individual lists of names and of 
 property, and were allowed until the 
 first day of August to copy and write 
 up their assessment roll, after which 
 they were required to give notice 
 that on the third Tuesday of August 
 they would review their assessment 
 and hear the complaints, if any, of 
 persons feeling themselves aggrieved. 
 After a further period they were re- 
 quired to deliver their assessment 
 roll to the supervisors. In the case 
 referred to the plaintiff was residing 
 within the assessment district of the 
 defendant on the 19th of May, when 
 the defendant wrote down on the 
 assessment roll the plaintiff's name 
 and placed opposite to it the amount 
 of 110,000, as an assessment of his 
 personal property, and informed the 
 plaintiff of what he had done. After 
 this had been done, and on the 25th 
 day of May, being the same month, 
 plaintiff removed to another tax dis- 
 trict in the state, where he resided 
 afterwards continuously until the 
 bringing of suit, and where he was 
 
 assessed and compelled to pay tax 
 on the same property. The defend- 
 ant and his co-assessors performed 
 all their duties, including the giving 
 of notice to all persons feeling ag- 
 grieved, and plaintiff did not appear 
 before them, and they did not strike 
 off this assessment; and by reason 
 of this assessment a tax of $100 was 
 annexed to plaintiff's name and the 
 amount collected, together with costs 
 from plaintiff. All the proceedings 
 were regular in case the assessor had 
 authority to make the assessment. 
 Plaintiff sued the defendant, who 
 made the assessment, to recover back 
 the tax thus collected, with costs, 
 ■ &c. It will be seen that when the 
 assessment was made, or the acts 
 done towards making the assess- 
 ment, the assessor had jurisdiction 
 both over the person and property 
 attempted to be assessed; but before 
 the expiration of the time within 
 which the assessors were to take the 
 list of the names and taxable prop- 
 erty, the plaintiff changed his resi- 
 dence to another tax district. It 
 was held that the assessment was 
 not completed until the assessors had 
 made up the assessment roll, given 
 the notice, and the time had expired 
 for hearing complaints. Until that 
 time they had control over the as- 
 sessment, and could make changes 
 or strike off any name which should 
 not be upon the roll ; and that what 
 was done by any one of the assessors 
 prior to the first of July was in- 
 
28 THE LA-W OP ASSKSSMENTS. 
 
 Sec. 23. Assessors— personally liable for acts done without 
 jurisdiction — when they err in favor of jurisdiction. — It becomes 
 a very difficult question sometimes for an assessor to deter- 
 mine whether he has jurisdiction to make the assessment. 
 This is especially so when the jurisdiction involves the cor- 
 rect determination of a question of fact. He may, from 
 all the evidence available to him, determine the fact to be 
 in favor of his jurisdiction, whilst a jury, called to pass 
 upon the same question, upon the same evidence, might 
 find the fact to be the other way. The extreme difficult}'- 
 of determining correctly the jurisdictional fact of inhabi- 
 tancy, residence or domicile of the person to be assessed ; 
 also the location of real estate, as to whether or not a tract, 
 lot or parcel, or a portion thereof, is or is not within the 
 jurisdiction of the assessor, when the line between towns, 
 counties or other tax districts is uncertain, undefined or in 
 dispute, is apparent. Notwithstanding these difficulties, 
 nor the good faith actuating the officer, in the absence of 
 exonerating statutes, if he err in favor of his jurisdiction, 
 any person injured by his acts may hold him individually 
 liable ; and this liability will extend to all who attempt to 
 enforce the assessment. Assessors must also, at their own 
 peril, determine, in some instances, questions of law. The 
 question of the liability or exemption therefrom, especially 
 in the absence of statutory provisions, of an assessor who 
 makes an assessment against one whom he determines to be 
 
 choate and subject to change by the person assessed upon the roll, and 
 final determination of all the asses- to issue a warrant for the collection 
 sors ; that the plaintiff, having left of the tax, the unauthorized act of 
 the tax district within the time al- the assessors was the means by which 
 lowed to the assessors to list the the property of the plaintiff was pro- 
 names and taxable property, and not cured to be sold. They are there- 
 being a resident on the day that the fore responsible to the plaintiff for 
 assessment became final, the assessor the damages which ensued. It was 
 did not have jurisdiction over the not, in the view of the law, the case 
 
 person or property assessed, and "in of an error of judgment A 
 
 placing his name on the roll and ad- subordinate officer is bound to see 
 
 ding thereto an amount as the value that he acts within the scope of the 
 
 of his personal property, they acted authoritylegally committed to him." 
 
 without authority. As the Board of Mygatt v. Washburn, 15 N. Y. 316- 
 
 Supervisors was obliged by law to 321. 
 annex a tax to the name of every 
 
ASSESSOR — LIABILITY OP. 
 
 29 
 
 an inhabitant or resident of his district, it is evident, de- 
 pends upon the correctness of his conclusions of fact. 
 Where it is sought to make him liable for having acted 
 without jurisdiction, and it depends upon the facts to estab- 
 lish jurisdiction, it is a question for the jury to find ; and 
 his own determination upon the same facts, finding in favor 
 of jurisdiction will not aid or exonerate him.^ 
 
 The duties of the assessor may and often are complicated, 
 by the fact of one person having two residences ; the ques- 
 
 ' In Freeman v. Kenney, 15 Pick. 
 44, the plaintiff had never, previous 
 to 1830, been assessed in the town of 
 Truro, but had always been assessed 
 for and paid his poll and real and 
 personal property tax in Wellfleet. 
 It was the duty of the selectmen of 
 the town every five years to survey 
 the lines of the towns and mark the 
 boundaries ; and the facts were, that 
 this had been done inside of the five 
 and three years and the result re- 
 corded in both towns; that the lines 
 of survey and as perambulated and 
 marked by the selectmen of the two 
 towns of Truro and Wellfleet for a 
 long period of years prior to 1830, 
 showed the plaintiff's residence and 
 lands to be within the limits of Well- 
 fleet; that plaintiff had never been 
 taxed in Truro for his poll nor for 
 this estate, previously to 1830; that 
 in 1829 the selectmen of Truro and 
 Wellfleet perambulated and marked 
 out the boundary line between these 
 towns, that by this line, which was 
 duly certified by such selectmen and 
 recorded in the town records of both 
 towns, the plaintiff's residence and 
 this estate fell within the limits of 
 Truro; and that this line remained 
 unaltered in 1830, when the tax in 
 question was assessed. It was also 
 admitted that the defendants acted 
 honestly in the assessment of this 
 property in the town of Truro. 
 Plaintiff being forced to pay the tax, 
 brought his action against the asses- 
 
 sors in case, for illegally assessing 
 and causing to be collected by dis- 
 tress a poll tax and a tax on part of 
 his real estate, alleging that his resi- 
 dence and such real estate were in 
 the town of Wellfleet. It was left, 
 at the trial, as a question of fact, 
 for the jury to determine, whether 
 " at the time when this tax was as- 
 sessed, the plaintiff's residence, and 
 the estate taxed were in Wellfleet," 
 in which case the verdict was to be 
 for plaintiff, otherwise for the de- 
 fendants. The court ruled that, 
 "when perambulations are duly 
 made and recorded, they are not 
 merely prima facie, but very high 
 and strong evidence," but that " they 
 may be overcome by higher and 
 stronger evidence." And notwith- 
 standing the defendants, "in assess- 
 ing plaintiff, acted, as has been 
 agreed by the parties, with fairness, 
 fidelity and integrity," yet this 
 will not protect the defendants if 
 they made an assessment against a 
 person and against real estate out- 
 side of their town. The case, how- 
 ever, went off on a technical ques- 
 tion, the court holding that an action 
 in case would not lie, but that the 
 action should have been trespass. 
 
 The case of Baker v. Allen, 21 
 Pick. 382, seems to be in conflict with 
 tlie case last cited (Freeman ». Ken- 
 ney), but the decision in that case is 
 based on a provision of a subsequent 
 statute " more comprehensive," and 
 
30 
 
 THE LATV OF ASSESSMENTS. 
 
 tion then being which of the two is the proper one, or the 
 one at which the owner is subject to assessment and taxa- 
 
 wliich it is construed makes assessors 
 "responsible only for the want of 
 integrity and fidelity on their own 
 part," and that while acting within 
 their appropriate sphere, they have 
 the same protection and immunities 
 which judicial officers have. The 
 statute construed in this case was 
 in the following language: 
 
 "The assessors shall not be re- 
 sponsible for the assessment of any 
 tax in any town, parish, religious 
 society, or school district, when such 
 tax shall have been assessed by 
 them, in pursuance of any vote for 
 that purpose, certified to them by 
 the clerk or other proper officer of 
 such town, parish, religious society 
 or school district, but they shall, in 
 such case, be responsible only for 
 want of integrity and fidelity on 
 their own part." 
 
 Afterwards this same statute came 
 up for construction in a case where 
 it was charged that the assessors had 
 assessed and caused to be collected 
 a school district tax, whereas no 
 such school district existed. The 
 facts in the case show that a ques- 
 tion of the legality of the supposed 
 school district was involved — and it 
 was held that this statute , did not 
 exempt assessors from liability, un- 
 less the school district for which they 
 assessed and caused the tax to be 
 collected actually existed. The fol- 
 lowing language was used to express 
 the opinion of the court : 
 
 " The exemption of assessors from 
 liability for assessment of taxes 
 upon inhabitants of a school district, 
 town or parish, is only in cases 
 where such school district, town or 
 parish really exists, and has compe- 
 tent authority to order an assessment 
 of taxes, and is liable in an action 
 by the party aggrieved for the 
 
 amount of the tax illegally assessed. 
 The authority or jurisdiction to act 
 in the matter being established, the 
 assessors are not responsible for 
 errors in the proceedings emanating 
 from such competent tribunal, thus 
 leaving the question of the existence 
 of the town, parish or school dis- 
 trict to be shown by those who jus- 
 tify under its votes." Witliington 
 V. Evelette, 7 Pick. 106 ; Dickinson 
 B. Billings, 4 Gray 42. 
 
 The question of the liability of 
 assessors to persons by them assessed 
 for a poll tax in a town of which 
 they were not inhabitants again came 
 before the Supreme Court of Massa- 
 chusetts, in a case where the person 
 assessed had paid the tax, and the 
 money was paid into the public 
 treasury; and it was held that asses- 
 sors were not liable and that the 
 only remedy of the party thus un- 
 lawfully assessed, was "by an action 
 of contract against the town to re- 
 cover back the money paid" (citing 
 Baker v. Allen, 21 Pick. 382); Alger 
 V. Inhabitants of Easton, 119 Mass. 
 77. 
 
 These later decisions are based 
 upon the statute before quoted, and 
 seem to be a slow recognition of an 
 equitable rule for the protection of 
 an officer who is necessarily com- 
 pelled to discharge public duties at- 
 tended with uncertainties both of 
 law and fact. 
 
 The question of a party's residence 
 or domicile, as between two towns, 
 is sometimes a question of fact, so 
 nearly balanced as to be determina- 
 ble in favor of the one or the other 
 place, by the mere declaration of the 
 party made in good faith. The case 
 of Lyman v. Fiske, 7 Pick. 231, is an 
 illustration of this point. The ac- 
 tion was trespass, and the facts were 
 
ASSESSOR — LIABILITY OF, 
 
 31 
 
 tion on his personal estate. The legislature of New York 
 attempted to make a rule for such cases by enacting " that 
 
 as follows: The defendant in 1832 
 was one of the assessors of the town 
 of Walthani, and assessed plaintiff 
 for his real and personal and poll 
 tax, in the sum of $502.67; and for 
 the non-payment of that portion of 
 the tax assessed on his personal tax 
 and poll, certain of his goods were 
 taken and sold, under the assessor's 
 warrant. The only question in the 
 case was whether plaintiff was taxa- 
 ble in Waltham in 1832 as an inhabi- 
 tant of that town. The facts were: 
 " that the plaintiff had lived on his 
 farm in Waltham a number of years, 
 and had been taxed and had paid his 
 taxes in that town; that for several 
 years he had been a widower; that 
 for several years he had kept a house 
 in Boston ready furnished, one room 
 of which he used as a counting-room; 
 that he iisually had some person liv- 
 ing in the house to take care of it; 
 that he kept a clerk in Boston and 
 transacted business there, mostly 
 through commission merchants, but 
 sometimes in his own person, or by 
 his clerk ; that he spent most of his 
 time in Waltham, but was in the 
 habit of coming often into Boston in 
 the summer season, occasionally 
 spending the night in Boston, but 
 generally returning to Waltham on 
 the same day, and that the house in 
 Boston was managed generally in the 
 same manner, whether he was more 
 or less in the city. At an interview 
 with the assessors of Waltham in 
 1831, the plaintiff proposed to them 
 to pay the sum of $300, annually, for 
 bis taxes, and alluding to- some pre- 
 vious diflElculties with them about 
 taxes, observed that he intended 
 always to live and pay taxes in Wal- 
 tham, unless the assessors bore too 
 hard upon him. In March, 1832, the 
 plaintiff directed his clerk to recall 
 
 his former housekeeper, who had 
 left his services, and have the house 
 in Boston ready, as he intended to 
 come to Boston that season and pay 
 his taxes there. This direction was 
 obeyed, and the housekeeper was at 
 the house before the middle of the 
 ensuing April. Prom that time till 
 the last of April plaintiff frequently 
 went into the city in the morning 
 and returned at night. On the 30th 
 of April he went to Boston and 
 staid till the 2d of May, when he 
 returned to Waltham. For about 
 two weeks after this time he was 
 often in Boston, remaining in the 
 daytime only; and in June, while 
 some of his grandchildren were ill in 
 Boston, he stayed every other night 
 in the city. Except at this time, he 
 was not in Boston in 1832, more 
 than in previous years; but his 
 housekeeper remained there during 
 the rest of the year, except a few 
 weeks in the summer, keeping the 
 house open for his reception, in the 
 same manner as had usually been 
 done before the period in ques- 
 tion. From that time till the time of 
 the trial at October term, 1834, the 
 plaintiff bad resided at Waltham as 
 before. After the plaintiff went to 
 Boston on the 30th of April, 1832, 
 he sent to the assessors of that city 
 a schedule of his real and personal 
 estate, and was taxed there at the 
 sum of $1,536.54, which tax he paid. 
 The trial court instructed the jury 
 that under this state of facts the 
 plaintiff had a right to elect in which 
 of the places he would be taxed; 
 that if he left Waltham and went to 
 Boston for the purpose of rendering 
 himself liable to taxation that year 
 in Boston, though he might have 
 intended to return to Waltham im- 
 mediately after the 1st of May, and 
 
32 
 
 THE LAW OF ASSESSMENTS. 
 
 in case any person possessed of such personal estate, shall 
 reside during any year in which taxes maybe levied, in two 
 
 dwell there as before, he was taxable 
 in Boston and not in Waltham, and 
 they ought to find a verdict for the 
 plaintiff. This instruction to tlie 
 jury was overruled because it took 
 from the jury the question of the 
 place of residence of the plaintiff 
 for taxable purposes in 1832, thus 
 holding that it is a question of fact 
 to be found by a jury, when put in 
 issue, where a person resides or is an 
 inhabitant. In passing on this ques- 
 tion the court say: 
 
 "In general terms, one may be 
 designated as an inhabitant of that 
 place, which constitutes the princi- 
 pal seat of his residence, of his busi- 
 ness, pursuits, connections, attach- 
 ments, and of his political and 
 municipal relations. It is manifest, 
 therefore, that it embraces the fact 
 of residence at a place, with the in- 
 tent to regard it and make it his 
 home. Tlie act and intent must 
 concur, and the intent may be in- 
 ferred from declarations and con- 
 duct. It is often a question of great 
 difficulty, depending upon minute 
 and complicated circumstances, 
 leaving the question in so much 
 doubt, that a slight circumstance 
 may turn the balance. In such a 
 case the mere declaration of the 
 party, made in good faith of his 
 election to make the one place rather 
 than the other his home, would be 
 sufficient to turn the scale. But it 
 is a question of fact for the jury to 
 be determined from all the circum- 
 stances of the case." 
 
 The question of the personal lia- 
 bility of the assessor for injury grow- 
 ing out of an assessment where he 
 has no jurisdiction by reason of non- 
 residence of the district has been 
 adjudicated by the courts of New 
 Tork. The case of Mygatt v. Wash- 
 
 burn has already been considered. 
 The case of Bailey v. Buell presented 
 two questions — whether the assessors 
 were personally liable for erroneously 
 determining that the plaintiff was an 
 inhabitant of East Bloomfield ; also, 
 whether the payment of the tax had 
 been voluntary. The trial court 
 held both questions in favor of the 
 plaintiff. The case is reported in 59 
 Barb. 158. The defendants, at the 
 trial, asked the court to instruct the 
 jury, " 1. That every citizen of the 
 state has a residence in some town 
 or village or city in which he is liable 
 to taxation; 2. That if at the time 
 the assessment is made, a citizen 
 of the state is staying even tempo- 
 rarily in a town, and has no resi- 
 dence in any other town or place, he 
 is liable to assessment and taxation 
 in the town in which he is so stay- 
 ing." These instructions were re- 
 fused. The defendant had also 
 moved for a nonsuit on the ground 
 that the payment of the tax had 
 been voluntary. The facts in sup- 
 port of this motion were, that under 
 statutory proceedings an order had 
 been served upon the plaintiff to 
 show cause why judgment should 
 not be entered and an execution 
 issued against him for the collection 
 of the tax assessed against him in 
 East Bloomfield. After service of 
 the order, he paid the tax and then 
 commenced the action against the 
 assessors in tort for damages. The 
 nonsuit was refused. The opinion 
 of the court may be understood 
 from the following brief extract : 
 
 "The plaintiff was assessed for 
 personal estate only. The statute 
 (1 E. S. .389, s. 5) provides that 
 ' every person shall be assessed in 
 the town or ward where he resided 
 when the assessment was made, for 
 
ASSESSOE — LIABILITY OF. 
 
 33 
 
 or more counties, towns or wards, birf residence for the 
 purposes and within the meaning of this section (sec. 5 of 
 the act) shall be deemed and held to be in the town, county 
 or ward in which his principal business shall have been 
 transacted." 2 This statute, it will be seen, introduces a 
 
 all personal estate owned by hira.' 
 He must be assessed where he re- 
 sides, for such property, and cannot 
 be assessed for it elsewhere. If the 
 assessors undertake to assess a per- 
 son for that description of property, 
 who is not a resident of their town, 
 they render themselves liable in an 
 action by the party wrongfully as- 
 sessed, for the damages he sustained 
 in consequence of such illegal assess- 
 ment. This is conclusively settled. 
 (People V. Supervisors of Chenango, 
 11 N. Y. 563; Mygatt v. Washburn, 
 15 X. Y. 316). The plaintiff in such 
 an action is not bound to show that 
 he is a taxable inhabitant of some 
 other town or place in order to 
 maintain it; nor could the contrary 
 be shown by way of defense. It is 
 enough for him to show, in such a 
 case, that he was not a resident, and 
 the assessors had no jurisdiction 
 over him to make such assessment," 
 and judgment was given against the 
 assessors; but in the Court of Ap- 
 peals the judgment was reversed; 
 just upon what grounds does not 
 appear, the opinion not being re- 
 ported. One of the judges dis- 
 sented. Bailey v. Buell, 59 Barb. 
 158; 50 N". Y. 662. 
 
 '^ Under this statute an assessment 
 was made against a person who had 
 two i-esidences, one in Buffalo where 
 he daily attended to business, took 
 a portion of his meals and slept in 
 one or two nights of each week, his 
 wife occasionally taking meals there 
 with him; the other at West Seneca, 
 where he occupied a house with his 
 family continuously for ten days; 
 thereafter for three, njonths his 
 ■ 3 
 
 family remained continuously, and 
 the party himself, taking a portion 
 of his meals there every day and 
 spending five or six nights out of 
 each week. The assessor of West 
 Seneca assessed the party for his 
 personal estate, and the objection 
 was that Buffalo was the proper 
 place, and after payment of the tax 
 an action was brought against the 
 assessors to recover the amount as , 
 an illegal assessment. The appellate 
 court affirmed the judgment of the 
 trial court, which was fdr defen- 
 dants. The judge rendering the 
 majority opinion took the position 
 that the assessors acted judicially in 
 determining the question of the in- 
 habitancy, and that they had juris- 
 diction of the subject matter. 
 
 " The case comes within the prin- 
 ciple of Barhyte v. Shepherd (35 
 N. Y. 238), and not within that of 
 Mygatt V. Washburn (15 N. Y. 316), 
 where the assessors had no jurisdic- 
 tion of the person of the plaintiff 
 and no right to take any action upon 
 the subject. Where the principal 
 business of the j)laintifE was trans- 
 acted, was a matter of fact to be 
 ascertained by proof, and to be 
 settled by judicial determination. 
 This determination was to be, made, 
 by the assessors. It was to be made 
 upon proof presented, or if none 
 was presented, by the best means 
 of knowledge possessed by them. 
 They are not liable for an erroneous 
 decision of a question which they 
 had jurisdiction to decide." Bell v. 
 Pierce et.al,, 51N.Y. 12. 
 
 The only tlieory upon which this 
 case can be sustained is that the 
 
34 THE LAW OF ASSESSMENTS. 
 
 new rule or test, as to what shall constitute, as between two 
 residences, a man's residence for taxable purposes, "the 
 town, county or ward in which his principal bnsiness shall 
 have been transacted." This still leaves a question of fact, 
 to be determined by the assessors, the determination of 
 which in favor of their own jurisdiction may involve a per- 
 sonal liability for an official decision, and the performance 
 of an official act. A part\' ma}"- have residences in two or 
 more different towns and carry on business in each, or he 
 may be a gentleman of fortune and leisure and not engage 
 in active bnsiness in either. Itmaybeand in many if not 
 most cases, is a hard rule, to require of assessors as pai't of 
 their official duties, the decision of disputed facts upon 
 which their jurisdiction to make an assessment depends; 
 and if, from the best evidence they can obtain, they decide 
 as their judgment dictates, and decide in favor of their 
 jurisdiction and act accordingly, that they shall be held 
 personall}'' responsible for an error of judgment. But the 
 rule is not specially different from the case of judges of 
 courts of limited, and to some extent, of unlimited juris- 
 diction, acting without jurisdiction over the person or sub- 
 ject matter. While the judges and officers of these courts 
 act within the scope of their jurisdiction, they are protected 
 
 assessors deciding upon the facts, personal property, he must be taxeJ 
 
 and holding that the plaintiff was in all respects as a resident of the 
 
 subject to assessment and taxation former place, and as if he had not 
 
 on his personal estate at West resided any portion of the year in 
 
 iSeneca, instead of Buffalo, decided the latter place. The statute fixes 
 
 correctly on the facts. In other his residence. It has been thor- 
 
 words, that they decided correctly oughly settled by repeated adjudi- 
 
 in favor of their jiu'isdiction. But cations that assessors have no juris- 
 
 the views in the dissenting opinion diction to assess a person for per- 
 
 of Eabl, Justice, seem more in soiial property unless he be a resi- 
 
 accord with the proper conclusion dent of the town, and if they do 
 
 to be drawn from the facts. The they make themselves personally 
 
 following is his language: liable to the person assessed for all 
 
 " The plaintiff resided most of the damages they may occasion him." 
 
 year in Buffalo and a portion of the (Citing — People v. Supervisors of 
 
 year at his summer residence in Chenango, 11 N. Y. 563; Mygatt v. 
 
 West Seneca. All his business was Washburn, 15 N. Y. 316; Barhyte 
 
 transacted in the former place, and v. Shepherd, 35 N". Y 238; Bailey v. 
 
 none of it in tlie latter. Therefore, Buell, 59 Barb. 158; Wade u. Mathe- 
 
 tor the purposes of taxation on his son, 4 Lans. 158). 
 
ASSESSOR — LIABILITY OF. 
 
 35 
 
 against all errors and mistakes, but if they assume to act 
 in matters where tliey have no jurisdiction, they are respon- 
 sible to all persons who may be injured by reason of their 
 acts.^ An equitable rule on the subject would be, to exon- 
 erate assessors from personal liability'- in all cases where 
 they act in good faith; allowing the persons improperl}^ or 
 erroneous!}' assessed, after payment of the tax upon a 
 proper showing to recover it back from the organization or 
 power receiving it, together with any actual damages accru- 
 ing prior to delinquency in the payment of the tax. Such 
 a rule would protect all parties in interest. 
 
 Sec. 24. Assessors — Pliable for omissions and errors. — An 
 assessor is liable individually as are also the sureties on liis 
 official bond, for omissions to perform official duties, a!id 
 for errors committed iu discharging the duties of his office 
 including those arising from a want of knowledge. It is 
 a principle of law that one who undertakes an employment 
 must understand his duty and he is not excusable for want 
 of knowledge.'- The liability of an assessor in this re- 
 
 "It matters not iu such a case 
 that the assessors acted in good 
 faith, or that there were sotoe facts 
 tending to show tliat the person 
 resided in their town, or that it 
 was difficult to determine where he 
 resided. To give them jurisdiction 
 he must in law and fact he a resi- 
 dent of the town, and while they 
 are obliged to decide the question 
 of residence where it is a disputed 
 one, they are bound to decide it 
 right or else they will not be pro- 
 tected. To this extent have the 
 decisions gone. This rule of respon- 
 sibility may be a hard one, but the 
 law as settled applies it to assessors, 
 and we must uphold it until the 
 legislature sees fit to alter it. Here, 
 however, there was nothing to em- 
 barrass the assessors. They knew, 
 or could have known, that plaintiff's 
 principal residence was in Buffalo, 
 and that he resided in their town 
 but a small portion of the year. It 
 
 appears that he did no business 
 whatever in their town. Hence 
 there were not even facts enough 
 to call for the exercise of their judg- 
 ment They cannot make him 
 
 a resident by deciding that he is 
 such, and they cannot acquire juris- 
 diction by determining that they 
 have it." Id. pp. 19, 20. 
 
 3 Colman v. Anderson, 10 Slass. 
 105; Briggs v. Ward well, 10 id. 350; 
 Lincoln v. Hapgood, 11 id. 350; 
 Tayler v. MofEatt, 2 Blaokf. (Ind.) 
 305; Wall v. Trumball, 16 Mich. 
 228; Willis v. Havemeyer, 5 Duer 
 460-1. 
 
 J It was the duty of the assessor 
 to receive sworn statements from the 
 Superintendents of Mining and Mill- 
 ing Companies of the amount of 
 bullion and its value, reduced from 
 ores taken from the mines located 
 in his county — the ores' to be as- 
 sessed at their paper money value 
 when severed from the mine and 
 
36 
 
 THE LAW 03? ASSESSMENTS. 
 
 spect does not differ from that of any other public officer. 
 But it is not every error that will make an assessor individ- 
 Tially responsible. Where he has juris^diction to act and 
 fixes a value too high or too low on the property he as- 
 sesses, he is not liable and the onlj'' remedy is an appeal to 
 the board of equalization. Tlie assessor is also liable for 
 omissions to assess all the taxable property within his 
 county or district to the extent of the loss in taxes upon 
 the property not assessed. It is made his dutj- to ascertain 
 and assess all the taxable property within his district. But 
 where there is a provision by which property not included 
 in the original Assessment Roll, may at any time within the 
 year Be assessed by the assessor himself or some other 
 officer, and no actual loss be sustained by reason of any 
 omission to assess — it is presumed, no liability would ac- 
 crue for the omission. Where there is no statutory pro- 
 visions for including property left out the previous year, 
 the assessment must be confined to the current year.^ 
 Where omitted propert}' is assessed by any other than the 
 regular assessing officer, in an action to enforce payment 
 of tlie tax, it should appear by .whom the assessment was 
 made.* It is within the province of the legislature to 
 
 deposited on the surface, the assess- lowing language: — "The only error 
 
 nient to be made after the ores had he seems to have committed was 
 
 been worked, the bullion extracted that he deducted the $18 and $40 
 
 and value ascertained; and from (the cost of reduction) per ton, be- 
 
 this value he was to deduct on ac- fore the amounts were reduced to a 
 
 count of working expenses $18 per greenback cuiTency basis instead of 
 
 ton for ores worked by wet process after. In other words, he allowed 
 
 and $40 per ton for ores worked by $18 per ton in gold for wet crushing 
 
 roasting or smelting process. The and $40 in gold for the fire process, 
 
 assessor of Story county, received instead of eighteen and forty in 
 
 sworn statements in which the val- paper currency, as we understand 
 
 ues were given on a gold coin basis; the law. This may have been the 
 
 and from these values he deducted result of a want of judgment. It is 
 
 the $18 and $40 per ton and there- a principle of law, however, that one 
 
 after added the difference in cuirent who undertakes any employment 
 
 values between gold coin and legal must understand his duty, and this 
 
 currency or TJ. S. Treasury notes, court cannot excuse him for want of 
 
 commonly called greenbacks, and up- knowledge." State v. Kruttschmitt, 
 
 'on such values made his assessment. 4 Nev. 214. 
 
 The coua:t, passing on this mode of ^ Scott «. Knightstown, 84Ind. 108. 
 
 making the assessment used the fol- ' Vogel v. Yogel, 78 Ind. 354. 
 
ASSESSOR — LIABILITY OF. 37 
 
 provide for the assessment of all taxable property over- 
 looked or omitted by the assessor and for the collection of 
 the taxes upon such assessments:* But eacli person so 
 assessed, should have opportunity given for making objec- 
 tions to the assessment itself or to have an equalization 
 made. No man should be denied a hearing when an attempt 
 is made to take from him his property or to charge or en- 
 cumber it with a lien for taxes. The liability of assessors to 
 towns for damages for negligence in assessing the taxes 
 voted by the town, must be looked for in the statute making 
 it their duty to make such assessments. If no such liability 
 is found in the statute a civil action on the case for damages 
 will not lie, especially if they acted in good faith, under tlie 
 belief that they weie carrying out the views of the town or 
 parish.^ 
 
 Sec. 25. Assessors act both judicially and miuisterially. — 
 In the exercise of the functions and in the discharge of 
 the duties of his office, an assessor acts both judicially and 
 ministerially, that is, some of his acts are judicial and some 
 are ministerial. "When it becomes necessary to determine a 
 question of law or fact, the act is judicial. It may safely 
 be affirmed that in no instance does an assessor perform all 
 the acts necessary to perfect the assessment of a single 
 person or item of property without the exercise of acts 
 "eminently judicial in their nature." He is clothed with 
 
 * The following is the provision in 108, strongly sustain the position 
 
 Oregon for omissions of the assessor: that public officers are not in this 
 
 "Whenever the assessor shall have form of a civil action, held respon- 
 
 omitted to assess any real or personal sible to the town, for damages to the 
 
 property liable to taxation in his town arising from their neglect of 
 
 county, it shall he the duty of the duty, in the absence of any statute 
 
 sheriff, upon discovering such omis- giving such remedy to the town, 
 
 sion to assess the same and collect (See cases cited.) If liable at all to 
 
 the taxes thereon, in like manner as the town or parish from which they 
 
 other assessments are made and received their appointment, they are 
 
 taxes collected, and such sheriff shall so only for want of fidelity and in- 
 
 return under oath, to the county tegrity, or for not discharging of 
 
 coiu-t, the amount of taxes, so as- their duties according to their best 
 
 sessed and collected by him." Sec. judgment and understanding." In- 
 
 98, ch. 5.7, p. 769, Gen. Laws Or. habitants, &c., v. Fiske et al., 8 
 
 5 " The views of this court in the Cush. 266. , 
 case of White v. Phillipston, 10 Met. 
 
38 
 
 THE LAW OF ASSESSMENTS. 
 
 power to administer oaths ; to receive botli written and oral 
 statements touching the matters his office gives him juris- 
 diction to inquire about, and to determine the facts neces- 
 sarily entering into an assessment ; such as the liability of 
 persons to assessment and taxation within his district ; the 
 property owned by them and the portion thereof subject to 
 taxation ; the portion thereof, if any, exempt from taxation 
 and the value thereof. These acts are spoken of in all the 
 cases as judicial in their nature. There are other acts 
 which are merely ministerial.^ Some of these acts would 
 consist of writing th^ names of taxpayers in the proper 
 place in the assessment roll, entering therein a proper list 
 or description of the personal and real property; entering 
 the figures denoting quantity and value when determined ; 
 makinET the mathematical calculation of the amount of the 
 various classes of taxes and writing each in the appropriate 
 column, &c. It is apparent that these and other acts of a 
 
 1 The judicial character of tlie acts 
 necessary to be performed by asses- 
 sors in malcing assessments is fully 
 established by the decisions of the 
 highest courts. In the case of 
 Weaver v. Devendorf, 3 Denio 117, 
 the plaintiff, as a minister of the 
 gospel, was entitled to an exemption 
 to the amount of fifteen hundred 
 dollars. The assessors having refused 
 to deduct this or any amount, fixed 
 the value of his taxable property at 
 $1,800, and having paid the tax, suit 
 was brought against the assessors for 
 damages, by reason of their refusal 
 to allow the exemption of $1,500. 
 The court held on the point, as to 
 the judicial character of the action 
 of the assessors in determining the 
 question as follows: " In some par- 
 ticulars the duty of the assessors is 
 undoubtedly ministerial; but infix- 
 ing the value of taxable property, 
 the power exercised is in its nature 
 purely judicial. With the exception 
 of real and personal estate, the value 
 of which is sworn to as authorized 
 by law, the residue is to be valued, 
 
 estimated and determined by the 
 assessors. This is empliatically u 
 judicial act. Afterward in the Court 
 of Appeals in the case of Barhyte 
 V. Shepherd, 35 N. Y. 238, the cases 
 in the courts of New York wherein 
 the action of assessors, upon the 
 matters involved in Weaver v. Dev- 
 endorf were reviewed, and it appeared 
 that the same rulixig had been made 
 in all the cases in that court where 
 the question was presented. In the 
 particular case the plaintiff had been, 
 when the assessment was made, ex- 
 amined under oath, and after hearing 
 the evidence, a claim of exemption 
 to the extent of $1,500 had been dis- 
 allowed. In respect to this action 
 by the assessors the court used the 
 following language: " To adminis- 
 ter oaths, to hear evidence, to weigli 
 its effect, to compare it with the 
 law, and to decide the question pre- 
 sented, are of the essence of judicial 
 action. To malce the figures, indi- 
 cating a deduction, and to make the 
 deduction itself on the assessment 
 roll, may he conceded to be a minis- 
 
ASSESSOE — LIABILITY OF. 
 
 39 
 
 similar character would not require or call for the exercise 
 of any judicial action or powers. When the assessor has 
 jurisdiction over the person and property, he is not respon- 
 sible for any errors or mistakes he may make while acting 
 within the scope of his jurisdiction. Persons feeling ag- 
 grieved must seektheirremedy in an appeal to the board of 
 equalization or as may have been provided for by statute. 
 The assessor in all such cases will stand upon the same 
 ground, as to exemption from personal liability, as any 
 other judicial or ministerial officer acting within the scope 
 of their jurisdiction or powers. 
 
 Recovering back a tax wrongfully assessed. When a statute 
 provides for the repayment of a tax wrongfully assessed 
 and paid, it is not sufficient that the tax was one that could 
 not have been enforced by reason of some omission or 
 
 terial act; but to arrive at the con- 
 clusion, by hearing and ■vieighiiig 
 evidence, judging of its credibility, 
 and comparing tlie evidence with the 
 provisions of law, that the plaintiff 
 was entitled to a deduction, is as far 
 from a ministerial act as can well be 
 imagined" — and it was held that 
 because the assessors had jurisdic- 
 tion both of the person and the 
 subject matter, and because their 
 action was judicial in its character, 
 they were not liable for errors or 
 mistakes in the decision they made 
 or for their action based on such 
 decision. Id. 251. (Barhyte B. Shep- 
 lierd.) 
 
 In Wade v. Matheson, 4 Lans (N". 
 Y. ) 160, the same question was pre- 
 sented, the cases again reviewed, and 
 it was conceded that assessors, when 
 determining the inhabitancy or resi- 
 dence of a person whom they assess, 
 act judicially, but it was held that 
 notwithstanding this fact, if they 
 err in favor of their jurisdiction, 
 they are personally liable to an in- 
 jured party. This case was affirmed 
 in 47 N. Y. 658, but no opinion was 
 written. 
 
 It is true that in the case of Hard- 
 enburg v. Kidd, 10 Cal. 403, Justice 
 Field makes use of language which, 
 if not read in the light of the ques- 
 tion he was considering, would indi- 
 cate the opposite view, wherein he 
 says: " The assessment of taxes is 
 not a judicial act ; it partakes of no 
 element of a judicial character. 
 It is a legislative act; it requires the 
 exercise of legislative power, which, 
 for certain governmental purposes in 
 the county, may be devolved upon a 
 board of supervisors, but cannot be 
 delegated to any branch of the judi- 
 cial department." But it will be no- 
 ticed that he is speaking of the 
 assessment or levy of the tax and not 
 of the listing of persons and property 
 by assessors, for the purposes of 
 taxation. He was discussing a con- 
 stitutional question ; the effect of an 
 attempt to confer upon the judicial- 
 department of the government pow- 
 ers and duties belonging to the legis- 
 lative department, which was in- 
 hibited by the constitution. It is 
 not a decision affecting the question 
 under consideration. 
 
40 ■ ■;> ■ THE LAW OF ASSESSMENTS. 
 
 irregularity in the assessment or other proceedings, but it 
 must appear that the payment of the tax would .be unjust 
 and inequitable. If the property was subject to taxation, 
 and the only ground of repayment is the irregularity or 
 invalidity of the assessment, the tax, after voluntary pay- 
 ment cannot be recovered back.^ 
 
 2 Board of Com'rs Howard County v. Annstong, 91 Ind, 529. 
 
SITUS. 41 
 
 CHAPTER IV. 
 
 SITUS. 
 
 Sec. 30. Where Property is Assessable.— Before makino' an 
 assessment, the assessor must determine whether the per- 
 son and property or either, is subject to taxation within the 
 limits of his jurisdiction. A mistake or error in determin- 
 ing this question in favor of his jurisdiction is fatal to the 
 assessment. An assessment against a person in a district of 
 which he is not an inhabitant creates no liability and can- 
 not Jbe enforced, and as already shown may render the as- 
 sessor and all others attempting to enforce it, liable per- 
 sonally to the party injured. It is therefore of the first 
 importance to determine correctly the place where persons 
 and property are subject to taxation. 
 
 Real Peoperty, must be assessed in the county or tax 
 district where it is situated. The rule is the same where 
 realty is owned by a corporation. An assessment of lands 
 supposed by the owner and assessor to be within the dis- 
 trict, but which are, in fact, without the district, will not 
 authorize a sale thereof for non-payment of the tax.^ 
 
 Personal Peoperty, must be assessed within the tax 
 district of the owner's domicile ; and when an assessment 
 is made to a corporation of personal property, except as 
 
 'In a case involving this point the tnily said that the owner would not 
 
 court used the following language : be injured so long as his lands were 
 
 "The supposition or belief of the not assessed in Duncan; this would 
 
 parties, officers and inhabitants, that not follow. The local taxes may 
 
 these lands were in Grant township not have been as heavy in Duncan 
 
 would not justify the taxation there- as in Grant, and the supervisor in 
 
 of therein, if in fact they were in the former township might have 
 
 another township. In such a case made a very different valuation, 
 
 the supervisor, in attempting to But however this may be, it is suffl- 
 
 assess them, would be acting with- cient that the assessment was wholly 
 
 out jurisdiction and his acts would without authority." Toung v. Tay- 
 
 be absolutely void. It cannot be lor, 12 K. W. Kep. 209 (Mich.) 
 
42 
 
 THE LAW OF ASSESSMENTS. 
 
 hereinafter noted, the legal residence of the corporation is the 
 proper place. There are exceptions to this rule as to person- 
 alty — the principal one being, where pei-sonal property has an 
 actual situs separate from the domicile of the owner. In 
 such cases it must be assessed within the tax district where 
 situated or found. Ships and vessels, while used for the 
 transportation of freight and passengers on the high seas 
 or navigable waters of the country, are to be assessed at 
 their home port nearest to the residence of the owner or 
 owners.^ 
 
 These requirements have been the subject of a large num- 
 ber of adjudged cases, some of which will be referred to in 
 the sections comprising this chapter. It must always be 
 borne in mind however, that the situs of all property, 
 whether real or personal, whether tangible or intangible, 
 for taxable purposes is the subject of statutory regulation 
 and control. ^ 
 
 ^ Where a statutory provision was 
 in these words : " All persons, 
 companies and corporations in the 
 state owning steamboats, sailing ves- 
 sels, wharf boats, barges and other 
 water crafts shall be required to list 
 the same for assessment and taxa- 
 tion in the county, township, city or 
 town in which the same may belong 
 or be enrolled, registered or licensed, 
 or kept when not enrolled, registered 
 or licensed " — and the owners of two 
 steam tug boats resided in the town, 
 hut the boats were kept and used 
 two miles from the town — an assess- 
 ment of the boats by the town was 
 held illegal. The facts appearing in 
 the pleadings the court held that it 
 affirmatively appeared that the boats 
 belonged elsewhere than at the place 
 of the residence of the owners. Ever- 
 sole V. Cook, 91 Ind. 222. See the 
 doctrine fully discussed in the case of 
 St. Louis V. The Ferry Co., 11 Wall. 
 424, cited at sec. 42, u. 3. See 
 also, Wheeling, Parkersburg &c. 
 Transp. Co. v. WheeUng, 99 U. S. 
 
 273 ; Irvin v. New Orleans & St. 
 Louis &c. E. R. Co., 94 111. 105. 
 
 "If property be such in its nature 
 as upon ordinary principles of taxa- 
 tion to be capable of having a two- 
 fold situs for taxation, the legislature 
 may select either as the place where 
 the tax shall be laid." Vail's Exec- 
 utors V. Eunyon, 12 Vroom 98 (41 N. 
 J. L.) "Chattels considered under 
 the legal classification of personalty 
 follow the person of the owner, and 
 yet chattels may be so localized in 
 use as to be taxable at the place 
 where they are situated as against 
 the owner who resides elsewhere 
 within the state." Id. 
 
 ^ In a well-considered case, where 
 a municipal corporation was empow- 
 ered "to lay taxes upon the real 
 and personal estate" &c., within the 
 city, and was also authorized to im- 
 pose taxes upon itinerant or trans- 
 ient merchants, steamboats and other 
 vessels, remaining in the corporation 
 less than one year, the court used the 
 following language : '* The situs of 
 
SITUS. 
 
 43 
 
 See. 31.. Real Iistate — parcels lying partly in two or more 
 counties.— It is frequently the case that the same parcel 
 or tract of land lies partly in two or naore counties or tax 
 districts. Without some statutory regulation prescrib- 
 ing the rule in such cases only the part that lies within 
 the tax district of the officer making the assessment can be 
 included. It is sometimes a matter of uncertainty, in 
 which of two tax districts a given tract or parcel of land 
 or some part thereof is situated. This is frequently the 
 case in new and sparsely settled localities and where 
 the county and district lines are not well defined. In all 
 such cases, in the absence of statutory regulations, an as- 
 sessment will depend for its validity upon the fact whether 
 the land was within the county or district of the assessing 
 ofBcer.''^ Where an assessment includes a tract or parcel 
 
 the property, not the domicile or 
 residence of the owner, is the test 
 to which tlie liability to taxation 
 must be submitted. The doctrine 
 that personal property has no local- 
 ity, that it follows the person of the 
 owner, however true as to the dispo- 
 sition of or succession to sucli prop- 
 erty. Is often an unimportant inquiry 
 in determining whether such prop- 
 erty should bear its just and legal 
 proportion of public burdens. If it 
 be visible, tangible property, or if it 
 be property not having a visible, tan- 
 gible existence, yet a legal existence, 
 capable of an actual situs, it is the 
 actual situs, not the domicile of the 
 owner, most material to be consid- 
 ered. Protection is the legal and 
 constitutional consideration of taxa- 
 tion, and that must be presumed to 
 be afforded, where it is a necessity 
 and a duty. If tlie owner of per- 
 sonal property separate it from his 
 domicile — commits it to another jur- 
 isdiction, so that it is not distin- 
 guishable from other property of a 
 like kind within that jurisdiction, or 
 from similar property casually, and 
 in the usual course of its use and en- 
 
 joyment, coming within that juris- 
 diction, he takes it away from liis 
 domicile and commits it, not to com- 
 ity, but to the power of the place to 
 which he transfers it. A vessel 
 merely touching at Mobile, in its 
 ordinary course of navigation and 
 trade, would not become liable to 
 taxation, state, county or municipal. 
 It is, while there, entitled to protec- 
 tion and would receive it from all 
 governmental authorities. ... Or Mo- 
 bile may be one of the termini of a 
 vessel — it may in the course of its 
 employment touch tliere merely to 
 discharge and receive freight and 
 passengers, one or both, returning to 
 another port or place, such use and 
 employment would not separate the 
 vessel from the domicile of the 
 owner and subject it to municipal 
 taxation. Its presence in Mobile 
 would be casual, in the mere ordi- 
 nary course of navigation or com- 
 merce." Mayor of Mobile v. Bald- 
 win, (57 Ala.) 29 Amer. R. 715. See 
 also n. 1, sec. 31. 
 
 iln Idaho T. the location of the 
 line between Ada and Idaho counties 
 was in dispute, and a tract of land 
 
44 
 
 THE LAW OF ASSESSMENTS. 
 
 situated partly within and partly without the assessor's dis- 
 trict, and there is no statutory authority for iucludipg the 
 portion within the district, and the whole is valued in gross 
 and the assessment furnishes no evidence of the value 
 placed upon the portion within the assessor's district, upon 
 well recognized principles, the assessment of the whole will 
 be invalid. 
 
 Sec. 32. Real Estate— parcels lying partly in two or more 
 Counties— Continued.— It is within the province of the legis- 
 
 was assessed in each county. The 
 owner was sued for the tax assessed 
 in Ada county. The statute author- 
 ized the defendant, in a tax suit, to 
 set up as , defense the following: 
 "Fourth. That the land is situated 
 in and has been duly assessed in 
 another county and the taxes there- 
 on paid." The defendant pleaded 
 that he was a resident of Idaho 
 county at the time of the assessment 
 and that the property was situated 
 in the same county. It will be ob- 
 served that he failed to plead that 
 "the taxes were paid thereon." In 
 deciding the case the court say : 
 
 "There can be no question that 
 an assessment of taxes to be valid, 
 must be made within the jurisdic- 
 tional limits of the taxing power and 
 by the proper officer of the district 
 or county where the taxes are levied," 
 and the court held the assessment to 
 be valid. It seems, that in a suit for 
 taxes a falliu-e to plead a proper de- 
 fence, although a good defence may 
 exist, is as fatal as in any other civil 
 action. In the case referred to the 
 court uses the following equivocal 
 language : 
 
 " If assessments are made in both 
 counties it is competent for the tax- 
 payer to pay his taxes in either as 
 may best suit his interest or conveni- 
 ence, provided he can show that his 
 land lies in the county where he has 
 paid his taxes and has been duly as- 
 sessed thereon ; and in this view, 
 
 the taxing district under the law, is 
 that wherein the taxes have been 
 duly levied and paid." People v. 
 Wilkerson, 1 Ida. 622. 
 
 Perhaps the learned judge in ren- 
 dering the above decision meant to 
 say that when the same land was as- 
 sessed in two counties and part of 
 the land is actually within each, the 
 party assessed had the option to pay 
 the tax in either, and if sued for the 
 tax in the county where the tax was 
 unpaid, could set up as a legal de- 
 fence the assessment of the same 
 land in both, and the fact that the 
 land assessed was situated partly in 
 both and the payment of the taxes 
 upon one of the assessments. It 
 would be a matter within legislative 
 control to fix and determine the 
 situs of property thus situated, and 
 in all cases, whether real or personal, 
 "where he has paid his taxes and 
 has been duly assessed thereon ; and 
 in this view, the taxing district under 
 the law, is that wherein the taxes 
 have been duly levied and paid." 
 People V. Wilkerson, 1 Ida. 619-622. 
 
 The language of the above ex- 
 tract, when stripped of all super- 
 fluous words, means simply that 
 where the same land is assessed in 
 two counties, the tax-payer must at 
 his peril pay the taxes on the as- 
 sessment made in the county where- 
 in the land actually lies ; and that 
 he must pay there whether it suits 
 his interest or convenience or not. 
 
siTtrs. 45 , 
 
 lature tt) regulate the assessment of real estate where par- 
 cels or tracts are situated partly in two or more tax districts ; 
 and where this has been done it has been usual to provide 
 for the assessment of such parcels in the tax district of the 
 .domicile or residence of the owner.' It is sometimes pro- 
 vided that such tracts shall be taxed in the district or county 
 in which the largest portion of the lands is located, espe- 
 cially where the question of the owner's domicile is not in- 
 volved ; but these are matters regulated, if at all, by 
 statute. 
 
 Sec. 33. V/here County divided — Taxation ante-dating 
 division— Where Property Assessable.— In the state of Nevada, 
 by a special provision of the state constitution, the mines, - 
 .notwithstanding their ownership in fee, by privnte persons 
 deraigning their title thereto from the United States, are 
 not taxable — only the proceeds thereof are to be taxed. 
 The assessor is authorized to require sworn statements from 
 each mill owner and mine owner of the proceeds of the 
 mine from which mineral has been extracted during the 
 previous quarter, and aided by these statements the assessor 
 makes an assessment to the owners of each mineral-pro- 
 ducing mine within his county, of the proceeds of such 
 mine, after making the proper deductions. White Pine 
 County was organized April 1st, A. D. 1869, and prior to its 
 organization constituted a part of the territory of Lander 
 County. After the organization of White Pine County the 
 assessor, in obedience to this statutory requirement, made 
 assessment of the proceeds of the mines within White 
 Pine County, for the quarter next preceding, being for the 
 three months next preceding the organization of White 
 Pine County, and the County Commissioners of that county 
 levied the proper tax upon this assessment. The question 
 arising upon this assessment was whether the assessor of 
 White Pine County had jurisdiction to assess a tax on the 
 proceeds of the mines within the county for the quarter 
 
 1 In New Jersey, land owned by a poration resided, and that that was 
 
 corporation situated partly in each the township wherein the corpora- 
 
 of two townships was held assessa- tion had its principal office. State v. 
 
 ble in the township where the cor- Warferd, 37 N. J. L. 397. 
 
46 THE LAW or ASSESSMENTS. 
 
 preceding its organization. Under this state of facts it was 
 held that at the time the proceeds of these mines became 
 assessable, b\- the creation of White Pine County, the ter- 
 ritory embracing these mines had been withdrawn from the 
 jurisdiction of Lander County and its officers, but that this 
 act did not absolve the mine owners or mines from the pay- 
 ment of the tax imposed by law; that the effect was sim- 
 ply to transfer the assessment, levy and collection of the 
 tax to another set of oiEcers — to the officers of the county 
 wherein the mines were located. The question of the right 
 of Lander County to the county's portion of this quarter's 
 tax, over and above the expense of collecting it, was not 
 presented ; the liability of the tax-payer under this assess- 
 ment, and of the assessor to pay over the taxes to the . 
 County Treasurer of White County, only were passed on.^ 
 But where the county is divided after the assessment is 
 made, or the line dividing two counties is changed, so as to 
 include the land in a county other than the one wherein it 
 was assessed, such division or change of the county line 
 would not defeat the lien created by the assessment, nor 
 divest the tax collector of the county in which the land was 
 situated, when assessed of the power of the collection of 
 the tax, by a sale of the property assessed.^ 
 
 Sec. 34. Personal Property — presumed to follo'w the person 
 of owner: Exceptions.— Personal property is presumed to ac- 
 company the person of the owner, and must be assessed 
 within the district or county where the owner resides. Ex- 
 ceptions to this rule have already been referred to.^ If 
 property be assessed within a county or district where there 
 is no jurisdiction of person or property, the tax arising 
 therein will be void. Speaking of the situs of personal 
 property. Justice Swayne in a leading case in the Supreme 
 Court of the United States, used the following language : 
 
 " In the eye of the law personal property, for most pur- 
 poses, has no locality. Mobilia sequuntur personam; immo- 
 hilia titum. Mobilia non Jiahent sequelam. In a qualified 
 
 ' White Pine Countv v. Ash, 5Sev. 279. 
 
 2 Moss D. Shear, 25 Cal. 47; Austin v. Holt, 26 Wis. 478. . 
 
 1 See § 30. 
 
SITUS. 47 
 
 sense it accompanies the owner wherever he goes, and he 
 niaj'' deal with it and dispose of it, according to the law of 
 his domicile. If he die intestate that law, wheresoever the 
 property may be situate, governs its disposal, and fixes the 
 rights and shares of the several distributees. But this doe- 
 trine is not allowed to stand in the way of the taxing power 
 in the locality where tlie property has its actual situs, and 
 the requisite legislative jurisdiction exists."^ 
 
 It may be stated as a general principle that every state 
 and sovereignty has the power to tax all the property, tan- 
 gible and intangible, actually and not transiently within its 
 jurisdictional limits, without regard to the domicile of the 
 owner. But no such power exists as to propertj^not having 
 a situs, separate from the owner's domicile, or in course of 
 transportation through the state, or within the state for a 
 mere temporary purpose. As to all such property the state 
 has no power over it, and cannot subject it to taxation, not- 
 withstanding the owner may be an inhabitant and be domi- 
 ciled within the state. If it were otherwise the same 
 jjroperty might be taxed twice within the same year — 
 once where the property was actually placed, and again 
 to the owner at his domicile in another state or sovereignty. 
 The taxation or assessment of property where it is not 
 assessable is no bar to its being taxed in a state or district 
 where the liability to taxation exists.^ 
 
 Sec. 35. Personal Property: -ro-here domicile changed — 
 Assessable at domicile when assessments perfected.— It has 
 already been shown that the question of domicile is 
 one of fact, and that it is often very difficult to determine 
 where the domicile of a tax-payer is at the time it is proper 
 or necessary to make the assessment.^ But upon the cor- 
 rect determination of this question the validity of the as- 
 sessment depends. It sometimes occurs that a tax-payer 
 clianges his residence while the various steps or proceedings 
 necessary . to .perfect an assessment are being taken. lu 
 such cases it becomes necessary to determine whether the 
 assessment is to be made in the district of the domicile 
 
 2 St. Louis B. The Ferry Company, 11 Wall. 430. 
 » Sec. 46. ^ Sec, 22, n. 1. 
 
48 
 
 THE LATV OF ASSESSMENTS 
 
 where the first steps were taken, or in the district of the 
 domicile after the change of residence. The question can 
 only be solved in the light of the statute under authority of 
 which the assessment is made. If a period of time be pre- 
 scribed for procuring lists, and another within which the 
 assessment is to be made or completed, and the change of 
 residence occurs before the time for obtaining lists expires, 
 and the new residence becomes fixed before the time for 
 completing the assessment roll, the assessment should be 
 made in the district of the new residence ; otherwise in the 
 district of the residence before the change. Tlie assessor 
 must have jurisdiction over the person and property at the 
 time when the assessment is actually made. The jurisdic- 
 tion, it seems, in the absence of statutory provision does not 
 relate back to the time of taking lists from persons to be 
 assessed.^ It must exist at the time when the assessment is 
 
 ^A case involving this point has 
 already been cited in a note to § 22, 
 to illustrate the liability of assessors 
 where they have no jurisdiction to 
 make the assessment. The statute 
 under which this assessment was 
 made provided that assessors should 
 " between the first days of May and 
 
 July in each year ascertain, 
 
 by diligent inquiry, the names of the 
 taxable inhabitants " in their towns 
 or wards; and for this purpose the 
 assessors were authorized to divide 
 the town into as many convenient 
 districts as there were assessors. 
 They were allowed until August 
 first to complete the assessment roll, 
 after which they were required to 
 give notice that on the thii'd Tues- 
 day of August they would hear com- 
 plaints to assessments as then made, 
 and on the first day of September 
 they were to deliver their assessment 
 roll. The question arose upon this 
 statute as to the date when the as- 
 sessment was made. If the time of 
 taking the list were held to be the 
 time of making the assessment, a 
 party might he listed at one place in 
 
 May and at another in June. After 
 stating the facts the court, Ch. J. 
 Denio delivering the opinion, say 
 the assessment " should be consid- 
 ered as made at the expiration of the 
 time limited for making the inquiry, 
 namely, on the first day of July. If 
 there is any change of residence or 
 property after that day, it does not 
 
 affect the assessment roll 
 
 No earlier day can be assumed, be- 
 cause what can be done by one or all 
 the assessors prior to the first of July 
 is inchoate and preparatory, and lia- 
 ble to be altered according to their 
 final judgment iipon the mattei'. 
 When the statute speaks of the time 
 ' when the assessment is made,' it 
 refers to the binding and conclusive 
 act which designates the tax-payers 
 and the amount of taxable property. ' ' 
 Mygatt V. Washburn, 15 N. Y. 320. 
 
 In Massachusetts it is provided 
 that the owner shall be assessed for 
 all his personal property "in the 
 town of which he shall be an in- 
 habitant on the first day of May." 
 This is a rule of certainty as to time. 
 It relieves assessors from determin- 
 
SITUS. 49 
 
 made. Under a statute requiring assessors to make inquiry 
 and ascertain the names of persons and property to be as- 
 sessed between the first days of May and July, and requir- 
 ing them to complete the copy of the assessment roll by the 
 first day of August, it was held that the time when the as- 
 sessment was made was the first day of July. But, as before 
 remarkq^, the question is subject to statutory regulation. It 
 would seem to be a very inequitable rule to assessors to 
 allow them, after having taken an assessment list, and with- 
 out notice of any change of residence, after having in good 
 faith made the assessment, to be ousted of jurisdiction by 
 the removal of the person to another district and made lia- 
 ble in damages for having done what the law would hold 
 them liable for not doing in the absence of a removal. In 
 a preceding chapter reference was made to a case wherein a 
 distinguished jurist remarked that the question of domicile, 
 — which place, as between two or more, at a particular time 
 constituted a party's domicile, — is often a question of such 
 great difficulty, " depending upon minute and complicated 
 circumstances, leaving the question in so much doubt, that 
 a slight circumstance may turn the balance;" and that "in 
 such a case the mere declaration of the party, made in good 
 faith, of his election to make the one place or the other his 
 home, would be sufficient to turn the scales," and that it 
 was a question of fact for the jury, to be determined from 
 all the circumstances of the case.^ A person may in gene- 
 ral terms be designated as an inhabitant of the place, so as 
 to subject him to assessment there, "which constitutes the 
 principal seat of his residence, of his business pursuits, con- 
 nections, attachments and municipal relations." A person's 
 domicile or residence may be determined from his acts and 
 intention, but these must concur.* It is sometimes pro- 
 
 ing two or three times within a given certain. Lee v. City of Boston, 2 
 
 period the question of the residence Gray 491. 
 
 for taxable purposes of each person ^ Lyman v. Fiske, 17 Piclc. 234. 
 
 whom they attempt to assess. It *A very important question of 
 
 still devolves upon the assessors the domicile arose out of the following 
 
 responsibility of determining cor- facts, known as Dr. Muni'oe's case, 
 
 rectly the question of residence, The Doctor had lived many years in 
 
 domicile and inhabitant, on a day India, where he practised his profes- 
 
60 
 
 THE LAW OP ASSESSMEKTS. 
 
 vided in statutes and constitutions that a tax-payer's state- 
 ment shall list all property owned by him or in his possession 
 
 sion and acquired a large fortune 
 consisting of personal property. He 
 was bom in Scotland; educated there 
 for his profession as a surgeon ; went 
 out to India; left that country with 
 the intention to return and thereaf- 
 ter pass the remainder of his life in 
 Scotland; arrived iu England where 
 he took sicic, and on that account 
 concluded not to go to Scotland to 
 live. He went there, however, on a 
 visit, and died there. By the law of 
 Scotland, heirs of the whole blood 
 only succeed to the personal estate, 
 but by the statutes of England, which 
 adopt in this respect the civil law, 
 heirs of the half blood participate in 
 the succession. On this statement of 
 facts the domicile of the deceased 
 was held to be in India. Munroe «. 
 Douglas, 5 Mad. Ch. R. 379. 
 
 Another important case upon the 
 question of domicile arose upon the 
 jurisdiction of the Probate Court of 
 Middlesex County, Mass., to probate 
 the will of Chris. Gore. It was 
 claimed that at the time of the de- 
 cease of the testator he was an in- 
 habitant of tlie county of Suffolk; 
 and if so, the Trobate Judge of Mid- 
 dlesex had no jurisdiction. The facts 
 were that the testator was born in 
 Boston, in the coimty of Suffolk, in 
 1758, and was a member of his 
 father's family until he became of 
 age, his father being an inhabitant 
 of that county. He entered into and 
 practised the profession of law at the 
 same place, where he resided con- 
 stantly until 1791, except that he 
 passed one summer at Waltham, in 
 the county of Middlesex. From that 
 year until 1796 he spent his summers 
 in Waltham and his winters in Bos- 
 ton. From 1796 to 1804 he was in 
 England, in public employment un- 
 der the government of the United 
 States. After his return, as before. 
 
 he spent his winters in Boston and 
 his summers in Waltham until 1814. 
 In 1814 he was elected to the Senate 
 of the United States, and after that 
 did not live in Boston, having his 
 mansion house in Waltham until 
 1822; that after 1817, not being in 
 public employment, he resided the 
 year round at Waltham. In 1816 he 
 sold his house in Boston. In 1822 
 he purchased another there, and 
 thereafter, until his death, which 
 took place at Boston on the 1st of 
 March, 1827, he lived in town and 
 country alternately, removing from 
 the country to town in the month of 
 December, and from town to the 
 country before the 1 st of May, hav- 
 ing in each place a house of his own, 
 furnished, and taldng with him his 
 sei-vants and equipage, and shutting 
 up the house in which he did not 
 live ; and in the year of his death did 
 not signify any intention of pursu- 
 ing a different course. Before the 
 year 1814 he was styled of Boston in 
 deeds and other instruments, and 
 after that period of Waltham, and 
 in his will, written by himself about 
 the 15th of December, 1826, he is 
 styled of Waltham. In 1810, in a 
 commission, he was styled of Boston, 
 and in February, 1820 and 1827, 
 he received similar commissions in 
 which he was styled of Waltham. 
 For five years prior to 1812 he was 
 taxed in Boston for his poll and per- 
 sonal estate, and not afterwards, but 
 in Waltham. The power of the Pro- 
 bate Court for taking the probate of 
 wills, and granting administration on 
 the estates of persons deceased, was 
 limited to persons who, at the time 
 of their decease, were "inhabitants 
 of or resident in the same county." 
 On these facts the court held "that 
 the testator's domicile was in Boston 
 until the year 1814 That was 
 
siTtrs. 
 
 subject to taxation on a particular day, but sucli provision 
 does not determine nor materially aid in determining the 
 place where the assessment is to be made. 
 
 Sec. 36. inhabitant and Domicile. — A distinction has ' 
 been recognized in the meaning of the words "inhabitant" 
 nnd "domicile," although they are often, if not invariablj', 
 used as convertible terms when applied to matters affect- 
 ing taxation. These words are defined in Webster's una- 
 bridged, as follows: "inhabitant" — "one who dwells or 
 resides permanently in a place, or who has a fixed residence 
 as distinguished from an occasional lodger or a visitor." ^ 
 Also in a law dictionary as " one who has a domicile in a 
 place ;" one who has an actual fixed residence in a place.^ 
 
 his forum originis, and it was not " To prove a change of domicile it 
 
 changed either by act or Intention, must be made to appear not only 
 
 both of which must concur to pro- that the old domicile had been aban- 
 
 duce a change of domicile doned, but also that a new one has 
 
 His acceptance of office and pay- been acquired, so that a domicile, 
 ment of personal taxes show that he being once fixed, will continue, not- 
 elected that town as his home withstanding the absence of the 
 
 There was no intention in the testa- party, until there is a substitution 
 
 tor to cease being an inhabitant of 
 Boston before the year 1814, and 
 therefore he continued an inhabi- 
 tant But in the year 1814 the 
 
 testator broke up his establishment 
 in Boston, and made Waltham his 
 home, returning to that place from 
 Washington while he was a member 
 of the Senate, and when that office 
 expired living entirely at Waltham 
 for five years, during all which time 
 he was, to all intents and purposes, 
 an inhabitant of that town, subject 
 to all lawful contributions, eligible 
 to office, and enjoying the right of 
 suffrage for state, county and town 
 officers there, and nowhere else. 
 .... Here was an adoption of a 
 new domicile, as well as an abandon- 
 ment of the bid." In this case it 
 was held on these facts that the 
 domicile of the testator, at the time 
 of his death, was at Waltham, and 
 not Boston. Harvard College v. Gore, 
 5 Pick. 871. 
 
 of a new one. The intention to 
 abandon an actual residence at an- 
 other place, if not accompanied with 
 an intention of remaining there per- 
 manently, or at least for an indefi- 
 nite time, will not produce a change 
 of domicile." Jennison v. Hapgood, 
 10 Pick. 98. A reasonable provision, 
 where assessors are required by the 
 residence or apparent residence of a 
 party to take from him a list for as- 
 sessment, would be to require such 
 person, in order to exonerate himself 
 from liability to assessment on such 
 list, to serve notice upon the assessor 
 of a change of residence and of an 
 assessment in another district, if 
 within the state. This might serve 
 to relieve assessors from incurring a 
 liability for an assessment made 
 without jurisdiction by reason of a 
 change of residence without their 
 knowledge. 
 
 1 Webster's Unabridged. 
 
 2 Bouv. Law Die. 
 
52 THE LAAV OP ASSESSMENTS. 
 
 The word "domicile" is defined as "an abode or man- 
 sion ; a place of permanent residence, either of an indi- 
 vidual or family ; a residence at a particular place accom- 
 panied with positive or presumptive proof of an intention 
 to remain there for an unlimited time."-' Also, " the place 
 where a man has his true, fixed and permanent home and 
 principal establishment, and to which whenever he is absent 
 he has the intention of returning."^ These definitions 
 would seem to indicate "a distinction without a difference." 
 The meaning of a word must be sought for in the sense 
 in which it is used, and in the manner in which it is applied. 
 The word "inhabitant" has a more enlarged and compre- 
 hensive meaning than the word "domicile" when used in 
 constitutions and statutes to express political and civil 
 rights and liabilities. The word "inhabitant" is some- 
 times found in statutes where its meaning is satisfied with 
 a personal presence of the body at any place within the 
 state, regardless of the intention of remaining permanently, 
 or for any length of tinie,^ but ordinarily the word has a 
 different meaning. The words "inhabitant," "resident," 
 "inhabitancy," "residence" and "domicile" are used, 
 although perhaps not invariably, in constitutions and stat- 
 
 1 Webster's Unabridged. on the ground that all the defen- 
 
 2 Bouv. Law. Diet. dants were inhabitants and residents 
 *An action was brought in Con- of other states, and that no service 
 
 necticut against non-resident defen- was made on any of the defendants 
 dants, to recover upon a joint con- except upon himself under the cir- 
 tract, under a statute providing that cumstauces stated. In ruling on this 
 " In actions on joint contracts if all motion the court use the following 
 the defendants are not inhabitants language, per Ellswobth, J. : " It 
 of this state, the service of the pro- is said that the statute does not ap- 
 cess upon such as are inhabitants of ply to a case where none of the de- 
 this state shall be sufficient notice f endants permanently i:eside in the 
 to maintain the suit against all the state ; but we thinlc otherwise. It 
 defendants." One of the defendants would be giving too narrow a con- 
 to the action, a resident of another struction to the word ' inhabitant,' 
 state, having come within the state as vised in 'the statutf . We think 
 to attend the trial of a case, with the the statute should be held to include, 
 intention of returning upon the eve- by a fair and liberal construction, 
 ning train of the same day, was every person who is in the state, 
 served with process, and thereafter whether here for a longer or shorter 
 filed a motion to vacate the service period." Bishop v. Vose, 27 
 and strike the cause from the docket Conn. 3. 9. 
 
stTUS. 53 
 
 utes to mean one and the same thing.* In statutes affecting 
 taxation as before remarked, these words are used as synon. 
 ymous terms and to designate persons liable to assessment 
 and taxation within a district by reason of their domicile, 
 residence or inhabitancy therein, within the meaning of the 
 words " inhabitant " and "domicile" as those words have 
 been defined. The recognizable distinction in meaning 
 between those words may be said to exist in this, that the 
 former includes all that is embraced within the latter, and 
 in addition, the political rights and duties of citizenship, 
 the right to vote and hold office, and the liability to jury 
 and military service. A learned judge, in deciding a ques- 
 tion of domicile, used the following language: "The 
 questions of residence, inhabitancy or domicile — for al- 
 though not in all respects precisely the same they are nearly 
 so, and depend upon much the same evidence — are attended 
 with more difficulty than almost any other which are pre- 
 sented for adjudication. No exact definition can be given 
 of domicile ; it depends upon no one fact or combination 
 of circumstances, but from the whole taken together it must 
 be determined in each particular case." '^ In a later case^ 
 another judge of the same court used the following language : 
 " There are certain words which have fixed and definite 
 
 * " The words ' inhabitant ' and different meaning, that the words 
 
 ' resident,' ' Inhabitancy ' and ' resi- ' persons resident ' are not precisely 
 
 dence' are commonly, thougli not equivalenttotlie word 'inhabitants.' 
 
 invariably used in the constitution The statute of 1850, ch. 276, 
 
 and laws of the Commonwealth, as which was ' an act concerning the as- 
 synonymous. There are a few pas- sessment of taxes,' designed to sup- 
 sages in them where ' residents ' has ply an existing deficiency, and to 
 a somewhat broader significance prevent the fraudulent avoidance 
 than ' inhabitants,' and designates a of taxation, affords a similar illustra- 
 class of persons who have no domi- tion. The phrases ' residence in a 
 
 cile within the state But town,' and 'inhabitant of a town,' 
 
 all such instances, wherever found, used interchangeably, are several 
 are exceptions. In general these times repeated in a manner some- 
 words have only one and the same what remarkable, but obviously 
 
 signification, and it is only meaning and intended to mean ex- 
 
 in those cases, where there is some- actly the same thing." Lee v. City 
 
 thing in the context, or in their con- of Boston, 2 Gray 490-1. 
 
 nection with other expressions, or in * Thorndyke v. City of Boston, 1 
 
 their peculiar use, indicating an in- Met. 245. 
 tention to give them a larger or 
 
54 THE LAW OF ASSESSMENTS. 
 
 significations. 'Domicile' is one such word, and for ordi- 
 nary purposes of citizenship, there are rules of general, if 
 not universal, acceptation applicable to it. 'Citizenship,' 
 'habitancy' and 'residence' are severally words which may 
 in the particular case mean precisely the same as ' domi- 
 cile,' but very frequenth'^ they may have other and incon- 
 sistent meanings ; and while in one use of language the 
 expressions, a change of domicile, of citizenship, of habi- 
 tancy, of residence, are necessarily identical or synonymous, 
 in a different use of language they impart different ideas." ^ 
 The Constitution of Massachusetts has defined the word 
 " inhabitant," as used in that instrument, to mean the place 
 where a man " dwelleth or hath his home." '^ It is said by 
 law authors and judges, that every man has a domicile or 
 home, "which is the exact, strict, technical definition of 
 domicile," and that he cannot abandon or lose it till he 
 shall have acquired another.* 
 
 Sec. 37. Two or more Residences or Domiciles. — The fact 
 that a man may have two or more residences, designated 
 sometimes domiciles, has been recognized both by legislatures 
 »and the courts. It is not uncommon for the same person to 
 have a city and a country residence and in some instances, 
 in addition, a cottage on the seaside. These may be and 
 often are situated in different tax districts, sometimes in 
 different states. The owner may divide his time between 
 them, in a manner to suit his pleasure, his convenience and 
 business pursuits. In such cases it becomes necessary to 
 determine which of the places constitutes his domicile for 
 taxable purposes. As to real estate, it is immaterial, as it is 
 
 s Borland v. City of Boston, 132 art 2; Borland v. City of Boston, 
 
 Mass. 89 ; (42 Amer. K. 420.) 42 Amer. E. 427. 
 
 ' "And to remove all doubt con- ' " A man need not be a resident 
 cerning the meaning of the word anywhere. He must have a domi- 
 ' inhabitant ' in this constitution, cile. He cannot abandon, surrender 
 every person shall be considered as or lose his domicile until another is 
 an inhabitant, for the purpose of acquired. A cosmopolite, or a wan- 
 electing and being elected into any derer up and down the earth, has no 
 office or place within this state, in residence, though he must have a 
 that town, district or plantation domicile." Borland v. City of Boa- 
 where he dwelleth or hath his tan, 42 Amer. E. 427. 
 house." Const. Mass. ch. 1, § 2, 
 
SITUS. 55 
 
 taxed in the district in which it is situated irrespective of 
 the owner's domicile; but personal property must be as- 
 sessed to the owner within the district of his domicile ; the 
 place of which he was an inhabitant when the assessment is 
 made. This is the general doctrine. The exception em- 
 braces such personal property as has become separated from 
 the owner's domicile and forms part of the wealth of another 
 district ; in which case it becomes subject to taxation 
 therein. It is within the province of the legislature to 
 control the situs of personal property for taxable purposes. 
 It is therefore necessary to consult the statute under which 
 an assessment is to be made to determine the proper dis- 
 trict. In New York a statute was framed in the following 
 language: "every person shall be assessed in the town or 
 ward where he resides when the assessment is made for all 
 the personal estate owned by him." Under this statute, a 
 party was assessed in West Seneca for his personal property, 
 who lived the greater portion of the year in the city of 
 Buffalo — both places being in the same county but in dif- 
 ferent tax districts. He had a summer residence in West 
 Seneca which he occupied with his family in the hot sum- 
 mer months, but the balance of the year he lived in the city 
 of Buffalo, where he carried on and personally superintended 
 a foundry business, going to West Seneca at night and re- 
 turning mornings, except that sometimes he spent the night 
 also in Buffalo. In the year the assessment was made, he 
 was living with his family at West Seneca on the 30th day 
 of June and on the 1st day of July, the day on which the as- 
 sessment was made and which included his personal prop- 
 erty. It was held that this assessment was made at the proper 
 plaee.^ The difficulty in most cases, of determining which 
 one of two or more, is the residence or domicile for taxable 
 
 ^Bell B, Pierce, 48 Barb. 51, af- both in the Supreme Court and in 
 
 firmed in 51 N. Y. 16. It also ap- the Court of Appeals that the as- 
 
 peared as a fact in this case that the sessors had jurisdiction to decide, 
 
 plaintiff had not been assessed for where the party had a residence iu 
 
 his personal property in the city of the district and also had another 
 
 Buffalo. It must also be borne in residence outside of the district, 
 
 mind that both tax districts were in which of the two was the one where 
 
 the same county. It was also held he was subject to assessment for his 
 
66 
 
 THE LAW OF ASSESSMENTS. 
 
 purposes, arises out of the fact of persons living and car- 
 rying on business in one place and maintaining a residence 
 or both maintaining a residence and carrying on a business 
 at another. The question is attended with still more diflS- 
 culty, when, in addition to such or similar facts the person 
 has no family, or is alienated and living apart from his 
 family. These and kindred questions may be solved by 
 ascertaining which of the places constituted the party's 
 home at the particular time. Where a party employs his 
 time at a place during the business hours of the day or 
 during all the working days of the week, or while health 
 permits and thereafter seeks rest, relaxation, enjoyments, 
 and restoration to health and if he have one, the society 
 of his family at another place — in each having and maintain- 
 ing a residence, the latter, for the exercise of his political 
 rights and subjection to corresponding services, and for 
 taxable purposes would constitute his domicile.^ It often 
 occurs, that an unmarried man, living in a city divided into 
 
 personal property, and for an error 
 committed in determining the ques- 
 tion they were not liable. Id. 48 
 Barb. 54r-5; id. 51 K. Y. 18. 
 
 ^In a case involving the question 
 of non-residence, where the facts 
 were that the party had a residence 
 out of the state where he lived with 
 his family, except the time during 
 business hours which he spent in the 
 state; that for about three months 
 previously he had boarded at a hotel, 
 paying his bills weekly, it was held 
 that he was a non-resident and sub- 
 ject to attachment process. In pass- 
 ing on this question the court say 
 that " in no case has it been decided 
 that where a debtor lives with his 
 family in this state, retm-ning to them 
 from day to day or from week to 
 week, he is an actual non-resident 
 (even within the spirit of any law 
 touching non-residents) merely be- 
 cause he passes the business hours 
 of the day or the business days of 
 the week, when his health will per- 
 
 mit, and his buinesss requires it, in 
 his store or manufactory without 
 the bounds of the state. In such a 
 case the liability of the party to 
 taxation, to render service as a 
 juror, or to enrollment as one of the 
 militia, we apprehend would not 
 be seriously questioned. Ordinarily 
 one's residence and domicile (if they 
 do not always mean the same thing) 
 are in fact the same, and where they 
 so concur they are that place which 
 we all mean when we speak of one's 
 home. When the question, where is 
 his residence, arises, some of the 
 proofs, or the indicia by which the 
 place is to be determined, vary with 
 the circumstances of the party. 
 One has a family, another has none 
 — one lives in a state of aUenation 
 and separation from his family, 
 another lives with them — one owns 
 or hires a dwelling house, another 
 has lodgings at an inn, and another 
 may have a, much more uncertain 
 shelter. None of these circum- 
 
SITUS. 57 
 
 wards which are separate tax districts has lodgings or hires 
 a room in a dwelling in one ward, which he occupies when 
 not actively engaged in his business and for his lodgings ; 
 while he has an office or place of business or employment in 
 another ward, where he spends all the business and working 
 hours of the day- — and takes his meals in still a different 
 ward. The question would here arise, as to the ward in 
 which such person is to be assessed for his personal prop- 
 erty. The same question would have to be met when the 
 right to vote would be claimed ; also when the attempt 
 should be made to impose jury duty or military service. It 
 is evident that under such or a similar state of facts the 
 ward wherein the party occupied a room would be his dom- 
 icile. It would come the nearest to answering the require- 
 ments of a home, to one in his condition. 
 
 Sec. 38. Domicile — Must lose the old before acquiring a new 
 one.— It sometimes becomes difficult by reason of removal to 
 determine as between two places, which is the domicile for 
 the purposes of taxation. The intention of the party often 
 has controlling weight in determining the question. But 
 there must be something more than mere intention — a con- 
 currence of action with intention.^' ^' ^ In changing the 
 residence from one place to another, except in case of a 
 
 stances are necessarily alone con- lose his residence in Indiana. The 
 elusive — they are not decisive tests fact that C, under the circumstances 
 — ^they are only aids to an answer stated, went to France and took a 
 to the question to be considered house in Paris for one year, but did 
 in connection with all other perti- not engage in any business there, 
 nent facts which may appear, was held to be insufficient to control 
 Chaine v. Wilson, 1 Bosw. 684-5. the other circumstances tending to 
 1 Ante 35, n. 2. sbow that Paris was only a place of 
 Where the facts were that C, temporary visit, and not a perma- 
 " with the intention of ceasing to be nent residence; that C. was there as 
 a resident of Indiana for an indefl- a sojourner and not as an actual 
 nite time, departed from Indiana resident. Culbertson v. Floyd 
 with all the members of his family County, 62 Ind. 362. 
 for the purpose of residing in Eu- ^ "Xhe general rule, and for prac- 
 rope, with the expectation of again tical purposes, a fixed rule is that a 
 becoming a citizen of Indiana at man must have a habitation some- 
 some indefinite time in the future, where; he can have but one; and, 
 probably two or three years," held therefore, in order to lose one he 
 
 that unless C. acquired a residence must acquire another One of 
 
 in Europe or elsewhere, he did not the fixed rules on this subject is 
 
58 
 
 THE LAV OF ASSESSMENTS. 
 
 wife or infant member of the family, after the journey has 
 commenced and the intention fixed upon the new domicile, 
 the date of residence does not commence until the bodily 
 presence of the person at the new domicile or place of resi- 
 dence.* The domicile of infants or minors, at least so long 
 as they are subject to parental control, is the same as that 
 of their parents. They cannot acquire a separate domicile 
 while this relationship continues. But if freed from such 
 control, the same rules as to the question of domicile apply 
 to them as to adults. When under guardianship it is the 
 domicile of the infant and not that of the guardian that 
 fixes the situs of the infant's personal property for taxa- 
 tion.^ It was at one time decided that where the liabilitj' 
 to taxation became fixed on the first day of May, and a 
 
 this: that n purpose to change un- 
 accompanied by actual removal or 
 change of residence does not consti- 
 tute a change of domicile. Tlie fact 
 and intent must concur. He must 
 remove without the intent of going 
 back." Bulkley v. Williamstowu, 
 3 Gray 493. 
 
 ' In a proceeding to vacate an 
 assessment the following were the 
 facts: A single woman, at one time, 
 occupied with her own furniture a 
 room in the house with her mother, 
 in the town of Salina, Onondaga 
 county, to whom she paid board 
 money. But before the imposition 
 of the tax she sold her furniture, 
 gave up her room, and, depending 
 upon her own exertions for a liveli- 
 hood, procured employment in New 
 York city, and then, for the double 
 purpose of profiting by it and at the 
 same time pursuing her musical 
 education, went thither. She left 
 Salina with no thought of returning, 
 but with the intention of remaining 
 in New Tork city. As a matter of 
 fact, she resided and engaged in 
 business in New York city from 
 and after December, and thereafter 
 had no dwelling or abode in Onon- 
 daga county; held that these facts 
 
 showed an intent to change her resi- 
 dence, and an actual abode and busi- 
 ness entered upon in a new place; 
 that having the right to change her 
 residence and having done so, the 
 assessment by the assessor of Salina 
 was invalid as not having been made 
 within the district of the person 
 assessed. Bassett v. Wheeler, 84 
 N. Y. 468. 
 
 * "A home once established may 
 be maintained without the concur- 
 ring bodily presence if the intention 
 continues unchanged through all 
 temporary absences. But in the 
 outset one cannot make a home in a 
 place by merely intending to do so. 
 Whensoever the intention is con- 
 ceived, the home does not exist 
 until the intention is executed by 
 an actual concurring bodily pres- 
 ence." Fayette v. Livermore, 62 
 Me. 232. 
 
 ^ The question of the residence of 
 a minor arose under the pauper laws 
 of Connecticut. It seems that by 
 the laws of that state if a pauper 
 were relieved by a town, which was 
 not his residence, a right was ac- 
 quired to recover the sum thus in- 
 curred from the town of the pauper's 
 residence. A pauper having been 
 
SITUS. 
 
 59 
 
 party before that day, with the intention of settling in some 
 locality fixed upon, in another state, and he crossed the state 
 line before the first day of May, he was not taxable at the 
 old domicile ; but if he crossed the state line after that day, 
 he was still taxable at the place he left. This doctrine, 
 however, has been repudiated, and such party held taxable 
 at the old domicile until a new one is acquired.^ 
 
 The statute of California required the assessor of each 
 
 relieved, after demand made upon 
 another town, claimed to be that of 
 the pauper's residence, an action 
 was brought to recover back the 
 money. The facts were that the 
 pauper's father was an inhabitant of 
 the town of Hebron; that by act of 
 the legislature he was divorced from 
 his wife who took out letters of 
 guardianship for their children, in- 
 cluding the pauper, a female; that 
 the pauper after this lived a while 
 ■with her mother, married, and 
 thereby acquired a settlement in 
 Vermont; afterwards, and it would 
 seem during her minority, returned 
 to the adjoining town of Marlbor- 
 ough, which had been created a 
 town out of part of the territory of 
 the town of Hebron and other ad- 
 joining towns ; that she needed sup- 
 port, was relieved by the town of 
 Marlborough, and notice served on 
 the selectmen of Hebron. The court 
 held that the town of Hebron was 
 liable. " The pauper, then, retained 
 her settlement in the town of He- 
 bron, where the father belonged 
 when Marlborough was incorpora- 
 ted, unless the appointment of the 
 mother, when divorced, to be guar- 
 dian of the children, would prevent 
 it. But this could affect no right of 
 the father over the children but that 
 of guardian ; it did not release him 
 from his liability to support them; 
 it did not emancipate them, and, of 
 course, could not take away the set- 
 tlement which they had acquired in 
 
 his right. The pauper was an inhab- 
 itant of the town of Hebron, and 
 the plaintiffs are entitled to re- 
 cover." Marlborough v. Hebron, 2 
 Conn. 22. 
 
 * In the case of Briggs v. Roches- 
 ter, 16 Gray 337, the facts were that 
 the plaintiff had been an inhabitant 
 of Eochester, in the state of Massa- 
 chusetts; that on the 10th of April, 
 1858, with the intention of making 
 his future home in Motthaven, N. 
 T., and no longer to be an inhabi- 
 tant of or have his home in Eoches- 
 ter; that in three or four days he 
 arrived in the city of New York, 
 wheie he remained with his son un- 
 til after the 1st day of May and then 
 went to Motthaven, N. Y., where 
 he established and afterwards main- 
 tained his residence. On the trial 
 the court was asked to instruct the 
 jury that if plaintiff left Rochester, 
 intending no longer to be an inhabi- 
 tant thereof, and went into and ar- 
 rived in another state before the 1st 
 of May, intending at once to become 
 an inhabitant thereof, and to make 
 his home therein, he was not taxa- 
 ble in Eochester as an inhabitant 
 thereof on the first day of May; but 
 the court declined to give this in- 
 struction, and instructed the jury 
 that if plaintiff had not in fact 
 taken up his abode at Motthaven, 
 his intended future residence, on the 
 1st of May, his domicile of origin 
 continued, and he was legally taxa- 
 ble on that day as an inhabitant of 
 
60 
 
 THE LAW OF ASSESSMENTS. 
 
 county between the first Monday of March and August in 
 each year by diligent inquiry and examination to ascertain 
 all the real and personal property in his county subject to 
 taxation, and also the names of all persons, corporations, 
 associations, companies or firms, owning, claiming or having 
 possession of real or personal property in any other county 
 in the state, which they did not know of their own personal 
 knowledge to have been already assessed in such county for 
 the same j'ear, and to require a list thereof, and which list 
 he was required to transmit to the assessor of the proper 
 county. In the case of the People v. Niles (herein cited) 
 the court say it is clearly the intention of the legislature to 
 require all personal property to be taxed in the county in 
 which it is situated, and that personal property " is to be 
 
 Rochester. It will be seen that the 
 question of the losing the old and 
 acquiring the new domicile was 
 squarely presented, and the ruling 
 of the trial court was that the old 
 continued until the new domicile 
 was acquired by the bodily presence 
 on the ground. In other words, 
 that a new domicile or residence 
 could not be acquired by inten- 
 tion merely, but that it required a 
 co-operation of act and of intention. 
 The S^upreme Court, however, re- 
 versed this ruling, and held that un- 
 der this state of facts the plaintiff 
 was not liable to taxation on the 1st 
 of May as an inhabitant of Roches- 
 ter. The following language was 
 used, after the statement that there 
 had been no case decided in Massa- 
 chusetts which was decisive of the 
 question, to express the opinion of 
 the Supreme Court: "This plain- 
 tiff did not reside or dwell in Roches- 
 ter on the first day of May, 1858, nor 
 had he then a home there. He had 
 left the town, removed out of the 
 state, and abandoned his home, with 
 an intention never to resume it, but 
 with an intention, which he soon car- 
 ried into effect, to make a new home 
 in the state of New York." Id. 341. 
 
 If the doctrine of this case is to 
 be followed, it changes the rule that 
 the old domicile continues until a, 
 new one is acquired, unless the new 
 one is to be considered as established 
 at the time of leaving the old, with 
 the fixed intention of acquiring an- 
 other at a particular place. But the 
 doctrine of this case has been over- 
 ruled, or at least so criticised and re- 
 stricted as to make it of no weight 
 as authority, by the same court, in a 
 well considered case already cited in 
 this chapter, wherein the doctrine 
 contained in the instructions to the 
 jury by the learned judge of the 
 trial court in the above case is main- 
 tained as the law. In this later 
 case the court recognize and affirm 
 the doctrine stated in the text, that 
 after a party has acquired a domicile 
 in the commonwealth he remains an 
 inhabitant for the purpose of taxa- 
 tion until he has acquired a new 
 domicile elsewhere, and that the in- 
 tention and the fact must have con- 
 cuiTed prior to the first day of May, 
 the day on which the tax is assessed. 
 Swan V. Manchester, 132 Mass. 89; 
 (42 Amer. R. 432;) see also In re 
 Nichols, 52 N. Y. 62. 
 
SITUS. 61 
 
 considered like real estate, as having a situs of its own, 
 independent of the domicile of its owner." But this statute 
 is construed, not to assign to personal property a situs for 
 taxation in any other county than within the domicile of 
 the owner, which is only temporarily/ there. " If A., residing 
 in Yolo county, drives his carriage into Sacramento county 
 on the first Monday of March, or any subsequent day 
 between that day and the first Monday in August, it does 
 not thereupon become the duty of the assessor of Sacra- 
 mento county to list and assess it as personal property ' in 
 his county.' It is in his county, it is true, but it is not so 
 in the sense of the statute ; its situs, for the purposes of 
 taxation, is in Yolo county." ^^ 
 
 A child, as already stated, takes the domicile of its 
 parents, and this continues during minority, or at least 
 while the child lives with or is under the care, custody and 
 supported by the parents. If the parents abandon their 
 domicile and acquire another, that of the infant children 
 follows the change. If the father die, his domicile at the 
 time of his death remains the domicile of his minor chil- 
 dren. The domicile of a married woman is that of her 
 husband, and she retains the domicile of her deceased hus- 
 band until a new one has been acquired.^'' The change 
 from one place to another, in order to work a change of 
 
 6 " People V. Niles, 35 Cal. 287. delphia, -where she was buried, and 
 '"'In the case of Pennsylvania v. her executors were sued for a " col- 
 Eavenel (21 How. 104), it appeared lateral inheritance tax,'' which was 
 that the domicile of the husband at admitted to be collectible if at the 
 his death was Philadelphia; that the time she died her domicile was at 
 domicile of his wife, before marriage, Philadelphia, but was not if when 
 was Charleston, S. C. ; that during she died her domicile was Charles- 
 the marriage they kept up a resi- ton. The court charged the jury 
 dence both in Philadelphia and that during marriage and upon the 
 Charleston, occupying the Charles- death of the husband, the wife's 
 ton residence in the winter months domicile was the husband's, but 
 and the Philadelphia residence in upon his death the wife was free to 
 the summer season; that after the choose her own domicile ; that if , af- 
 husband's death, who willed all the ter the husband's death, the wife re- 
 property to the wife, she alternated turned to her former domicile in 
 her residence between the two cities Charleston and took possession of 
 in the same manner, but claimed the house and servants devised to 
 Charleston as her home and domi- her, lived there six or seven months 
 cile. She afterwards died in Phila- of every year, calling it her home, 
 
62 
 
 THE JjAW of assessments. 
 
 domicile, must have been made with intention to quit the 
 old and remain at the new as a present fixed domicile. The 
 person thus changing his residence must intend to remain 
 for an indefinite time ; this will fix the domicile at the new 
 place, notwithstanding he may entertain an intention at 
 some uncertain time in the future of returning to the old 
 domicile or to go elsewhere.^ The change of residence, to 
 effect a change of domicile, must be voluntary ; but there 
 may be circumstances under which a place of involuntary 
 residence or imprisonment will work a change of domicile.* 
 
 Sec. 39. SUus for taxation of personal property of deceased 
 persons. — The personal property which belonged to a de- 
 
 spending only a few weeks of every 
 spring and fall in her liome in Phila- 
 delphia and the remainder at sum- 
 mer watering places; coming north 
 in the summer for the sake of her 
 health, always intending to return 
 to her house in Charleston ; that she 
 was hindered from returning the 
 last time from sickness ; that if she 
 consulted counsel how she might 
 avoid giving pretence to tax-gather- 
 ers of Pennsylvania to treat her as 
 domiciled in Philadelphia; if she 
 denied at all times her citizenship in 
 Philadelphia; if she refused to re- 
 move certain of her furniture from 
 Charleston to Philadelphia for fear 
 such fact might be used as evidence 
 of her domicile in Philadelphia; if 
 she called herself in her will ' of 
 Charleston;' if, when absent from 
 that place she always spoke of re- 
 turning to it as her home, and did 
 return to it as such till hindered by 
 sickness — it would be absurd to 
 say her domicile was not where she 
 asserted it to be, to wit, in Charles- 
 ton." This charge was held to con- 
 tain the law applicable to this state 
 of facts, although that part of the 
 charge stating an opinion or conclu- 
 sion is criticised and dissented from 
 by Justice Daniel. It will be seen 
 that effect is given to the declarations 
 of the party in connection with acts. 
 
 ' Story Confl. Laws, § 46, and cases 
 cited. 
 
 ^ Under a statute authorizing ser- 
 vice of a summons by leaving a copy 
 at the usual place of abode of the 
 defendant, a copy of summons was 
 left with the defendant in the jail 
 where he was at the time impris- 
 oned, and the question was whether 
 this was a legal service. The facts 
 were that before his imprisonment 
 the defendant had made assignment 
 of all his property, including his 
 dwelling house, for the benefit of 
 his creditors, and before the service 
 in the manner stated the assignee 
 had sold the former dwelling house 
 and residence of the defendant. In 
 determining upon the validity of the 
 service, the court used the following 
 language: "We think, therefore, 
 that the service was, under the cir- 
 cumstances, properly made, by leav- 
 ing a copy with him at the jail. 
 True, this was the place of his im- 
 prisonment, and can, therefore, 
 hardly be said to be his home. 
 But as he had no other usual place 
 of abode to which he could properly 
 return as to his home, unless service 
 could be made upon him at the jail, 
 we do not see how he could have been 
 served with the process anywhere." 
 Dunn's Appeal, 85 Conn. 84. 
 
SITUS. 63 
 
 ceased person at the time of his death, while it is in a transi- 
 tion state from the dead to the living, is subject to its 
 proportion of the public burdens and for the purposes of 
 taxation, must necessarily have a situs. This is held to be as 
 to personal property the place where the deceased had his 
 residence or domicile at the time of his death, (a) "While 
 in the hands of the executor or administrator, it is 
 assessable at thp domicile of the deceased at the time 
 of his death and not at the domicile of the executor 
 or administrator. But when it comes into the possession 
 of the heir or legatee, it is to be assessed at the place 
 where the heir or legatee resides.^ The law applying to the 
 personal property while it retains the character of a deceased 
 person's estate, must not be understood as differing from 
 the law applicable to property similarly situated, belonging 
 to living persons or to the same person, if living. If the 
 actual situs of the property and not the mere domicile of 
 the owner, determines the place of taxation, then the prop- 
 erty of a deceased person, while in course of the settlement 
 of his estate, is to be assessed at the place where it was 
 assessable when the owner died, whether that be at the dom- 
 icile of the deceased or where the property is actually sit- 
 uated. ^ This rule applies to choses in action belonging to 
 the estate. ^ It may be stated as the general doctrine, that 
 
 (a) Burronghs on Taxation, 224. for the year, the executor remain- 
 
 ^ Cornwall v. Todd, 38 Conn. 447. ing and residing in the corporation 
 
 2 Albany v. Meekin, 3 Ind. 481. took these notes and deposited them 
 
 'W. C. Johnson and John D. with a party residing a short dis- 
 
 Dement were the executors of the tance outside of the corporation 
 
 estate of W. C. Dement, deceased, limits; but he afterwards controlled 
 
 They managed and controlled the them and had the right to the 
 
 estate of the deceased, part of which actual possession of them at any 
 
 consisted of money which they time and collected interest on them, 
 
 loaned, taking notes and mortgages the same as when in his actual pos- 
 
 as security. These executors re- session. Under those facts, it was 
 
 sided in Oregon city which had lield that the executor was properly 
 
 been the residence of the deceased, assessable on these notes as part 
 
 One of the executors left the state, of the property of his testator in his 
 
 the other continued to reside in possession ; that it was not the notes 
 
 Oregon city where he kept notes and mortgages which were taxable 
 
 of the estate amounting to $30,000. but the debts of which they were 
 
 A short time before the assessor of merely the evidence and security, 
 
 the city commenced the assessment Johnson v. Oregon City, 2 Or. 327. 
 
64 
 
 THE LAW OF ASSESSMENTS. 
 
 in the absence of express statutory regulation, choses in 
 action follow the domicile of the owner. Property of that 
 character owned by a party at the time of his decease would 
 be assessable within the domiciliary district, during the set- 
 tlement of his estate, without reference to the domicile of 
 his administrator or executor. Money deposited in bank 
 changes ownership — the money becomes the property of the 
 banker and is assessable to him and the depositor becomes the 
 owner of a debt against the banker and is assessable for this 
 debt at his own domicile. * And it would seem that the 
 
 * The question of the situs of a 
 bank deposit belonging to the estate 
 of a deceased person became the sub- 
 ject of litigation in the courts of 
 California in the estate of Michael 
 Reese. He died in Europe. His 
 domicile was in San Mateo county, 
 California. One of his executors re- 
 sided in Chicago, 111., one in San 
 Francisco, California, and one in San 
 Mateo county, California. The ex- 
 ecutors, in the course of settlement 
 of decedent's estate, made deposits 
 in different banks in the city of San 
 Francisco and had, on deposit in 
 those banks, on the first Monday of 
 March, 1882, the day in the year on 
 which, with reference to time all 
 persons are to be assessed for the 
 taxable property they own, over five 
 hundred thousand dollars, which was 
 assessed for city and county taxes 
 in the city and county of San Fran- 
 cisco, to the two executors resident 
 within California. The city and 
 county of San Francisco is a consoli- 
 dated government and the assessment 
 combined an assessment for both 
 city and county purposes. The same 
 property was assessed for county and 
 state taxes in San Mateo county, and 
 the taxes paid by order of the court 
 controlling the settlement of the 
 estate. The city and county of San 
 Francisco brought suit to enforce 
 payment of the assessment first men- 
 tioned. Justice McKiNSTBY. in de- 
 
 ciding the cause for the full bench, 
 reviews the doctrine of the cases in 
 California on the question of the 
 sitvs of personal property for taxable 
 purposes. "The question," says 
 the learned judge "is whether the 
 property was assessable in San Mateo 
 county or in San Francisco. It is 
 a settled rule that a general deposit 
 is, in effect, a loan, the relation of 
 the bank and depositor being that 
 of debtor and creditor. Where then 
 should the credits, the amounts due 
 from the banks to the estate have 
 been assessed ? The Constitution, 
 Article 13, § 10 provides that all prop- 
 erty except certain railroad prop- 
 erty, shall be assessed in the county 
 where it is situated; and Section 3629 
 of the political code requires of the 
 assessor to exact from each person 
 ' a statement in writing, showing 
 all property belonging to, claimed by 
 or in possession of such person, and 
 the county in which such property 
 is situated, or in which it is liable to 
 taxation,' etc. Neither the constitu- 
 tion nor the section of the political 
 code referred to defines the situs of 
 any property and that is to be de- 
 termined by the application of recog- 
 nized principles of law. In the ab- 
 sence of statutory provisions on the 
 subject, the situs of all personal prop- 
 erty would follow the person of the 
 owner. For most judicial purposes, 
 a debt or credit has no situs or local- 
 
SITTTS. C5 
 
 word property, when used in a constitution or statute, in its 
 general sense, does not include choses in action, as wliere 
 the constitution or statute provides, that all property, except 
 certain railroad property shall be assessed in the county 
 where it is situated, this will be construed not to include a 
 chose in action so as to require it to be assessed where it is 
 payable or secured, if that be in any other county than the 
 domicile of the owner of the debt. ^ A debt, when the cred- 
 itor resides in the state in the absence of express legislative 
 provisions to the contrary, has no situs for the purposes of 
 taxation apart from the residence of the owner. ^ 
 
 Sec. 40. statutory regulation — Assessments at places other 
 than domicile. — A statute required that goods, wares and 
 merchandise, &c., or stock in trade, including stock em- 
 ployed in the business of the mechanic arts in any town- 
 ship other than where the owners reside, should be taxed 
 in the township where the same might be, if the owners 
 liire or occupj^ a store, mill, shop or warehouse therein, and 
 should not be taxable where the owners resided ; and that 
 partners in mercantile or other business, whether residing 
 in the same or different townsliips, might be jointly taxed 
 under the partnership name in the township where their 
 business was carried on, for all the personal property em- 
 
 it.y. But when credits are made 533; People v. Park, 23 id. 138; 
 the subject of taxation, it is appro- People v. Eastman, 25 id. 601 ; Peo- 
 prlate that their locality should he pie v. Halladay, 25 id. 806; People 
 referred to the residence of the o. Niles, 45 id. 282 ; People v. Whar- 
 owner. ... If the testator were tenby, 38 id. 466. See also Mc- 
 living and the moneys had been Dougal v. Brazil, 83 Ind. 211. 
 deposited by him, the amount of ^An opposite view was taken in 
 the debts due by the banks to him New Jersey under a statute requir- 
 would be taxable in San Mateo, the ing tha,t " every person shall be as- 
 county of his residence. The situs sessed in the township or ward where 
 of the property for taxation purposes he resides, for all personal estate in 
 does not change upon the death of his possession or under his control 
 the owner. The personal property as trustee, guardian, executor or ad- 
 of decedents is taxed at the former ministrator." State <£c. Ely v. Col- 
 domicile of the decedent." City lector of Holmdel Twp., 39 K. J. L. 
 and County of San Francisco v. Lux 82; also in Tennessee &c. Gallatin 
 et al., 1 West Coast R. 555. (Cal.) v. Alexander, 10 Lea (Tenn.) 475. 
 
 The following cited cases support ^ People v. Eastman, 25 Cal. 603 ; 
 
 the general doctrine of this decision: Louisville v. Sherley, 80 Ky. Tl. 
 People V. Home Ins. Co., 29 Cal. 
 
 5 
 
60 THE LAW OT? ASSESSMENTS. 
 
 ployed in such business, and if they had places of business 
 in two or more townships, they should be taxed in each in 
 proportion to the property employed in each. Under this 
 statute, in order to justify an assessment, in a township 
 other than where the owners reside, the party must have 
 an independent business which has a local centre at a place 
 other than his residence.^ 
 
 A statute of Massachusetts provided that " all personal 
 estate within or witliout this state shall be assessed to the 
 owner in the city or town where he is an inhabitant on the 
 first day of Maj% except that all goods, wares and mer- 
 chandise and other stock in trade, except ships or vessels 
 owned by a copartnership, including stock employed in the 
 business of manufacturing, or of mechanic arts in cities or 
 towns witliin the state, other than where the owners reside, 
 whether such owners reside within or without this state, 
 shall be taxed in those places where the owners hire or 
 occupy manufactories, stores, shops or wharfs, whether 
 such property is within such places or elsewhere, on the 
 first day of May of the year when the tax is made." 
 
 To make a person taxable, under this exception, in a 
 town or city other than the one wherein he resides on the 
 first day of May, it must appear that he owned, hired or 
 occupied a manufactory, store, shop or wharf on the first 
 day of May of the year when the assessment was made.* 
 But where the manufactory is sold and notes taken therefor 
 prior to the first day of May — the day fixed for liability to 
 assessment for taxation — the notes are not taxable at the 
 
 1 Putnam v. Fife Lake Twp., 45 Id. 504; Loud ». Charlestown, 103 
 
 Mich. 133. It was held that a party Mass. 278. 
 
 who had a saw mill, and manufac- ^ Where a party living in Boston 
 tiired lumber at a township otlier owned the furniture in a hotel in 
 than where he resided, keeping a Charlestown, it was held that he was 
 man to attend to the piling and not liable to assessment in Charles- 
 shipping of the lumber, and who town for such furniture, that he did 
 occasionally sold some of the lum- not come within the exception, but 
 ber, was not subject to assessment that he was subject to assessment for 
 on the lumber manufactured at such this furniture in Boston. Charles- 
 township. Id. town V. County Commissioners, 109 
 
 See also McCoy v. Anderson, 47 Mass. 271. 
 
SITUS. 67 
 
 town where the manufactory was hired or occupied, but at 
 the owner's domicile.^ 
 
 A statute provided as follows : 
 
 " All personal property shall be assessed in the assessment 
 district where the owner resides, except as hereinafter pro- 
 vided: If such owner be a non-resident of the state, 
 but have an agent residing in this state in charge of such 
 property, then the same shall be assessed in the district 
 where such agent resides, otherwise in the district where 
 the same is located except as hereinafter provided. Mer- 
 chants' goods, wares, commodities kept for sale, tools and 
 machinery, manufacturer's stock, farm implements, live 
 stock, and farm products, excepting grain in warehouse, 
 shall be assessed in the district where located. Saw-logs 
 and timber which are to be sawed and manufactured in any 
 mill within this state, which is owned or leased by the 
 owner of such logs and timber, shall be assessed as manu- 
 facturer's stock in the district where such mill may be 
 located. Saw-logs, timber, raih'oad ties, lumber, and other 
 articles, not being manufactured stock, shall be assessed 
 where the owner or his agent, in the ease aforesaid, resides. 
 No sale of any personal property or change of location 
 after the first day of May, in any year, shall affect the 
 assessment made in such year." 
 
 Under this statute a non-resident, keeping lumber within 
 the state in charge of an agent, and having it shipped to 
 his customers by his agent, upon his own order, is taxable 
 at the place where the lumber is kept or where the agent 
 has his domicile.* 
 
 ^LanesborougliB. BerksMreCoun- In Mitchell's case, arising under 
 
 ty Commissioners, 131 Mass. 424. this same statute, an assessment was 
 
 *" Holding as we do that the evi- made of the lumber of a lumber 
 
 dence shows that the lumber upon yard carried on by Mitchell and aur 
 
 which the taxes were assessed was other through an agent, in the town 
 
 merchants' goods, &c., kept for sale of Plover. The assessment was made 
 
 at Spencer, the taxes were properly by the town, and the tax was resisted 
 
 assessed upon it in that town; and it on the ground that the proprietors 
 
 becomes unnecessaiy to determine resided in Milwaukee and the agent 
 
 whether the agent of the plaintiffs in Grand Kapids. The court held 
 
 resided in the town of Spencer or at that this character of property kept 
 
 Stevens' Point." Sanford v. Town of at this lumber yard, which consisted 
 
 Spencer, 22 N. W. Eep. 465 (Wis.) of lumber, timber, shingles, and 
 
68 
 
 THE LAW OF ASSESSMENTS. 
 
 Sec. 41. Personal property in transitu has no situs for taxa- 
 tion. — While personal property is being carried from one 
 place to another, within the state or from one state to 
 another, it has no situs for taxable purposes in any state or 
 district throujrh which it passes. This exemption from 
 taxation continues until the property reaches the domicile 
 of its owner, or becomes a part of the property and wealth 
 of another district apart from the domicile of the owner, 
 and subject to taxation therein. Were the law otherwise; 
 if property could be taxed in each state and territory 
 througli which it must necessarily pass while being carried 
 from one place to another, it follows that ordinary mer- 
 chandise and other personal property, while en route from 
 one extreme of the nation to another, might be taxed in the 
 aggregate more than its actual value.-' The same exemp- 
 
 other property usually kept for sale 
 at lumber yards, "was merchants' 
 goods, wares and commodities, kept 
 for sale.by them as merchants, and 
 was rightfully assessed and taxed in 
 said town by tlie proper authorities 
 thereof." Mitchell v. Town of Plover, 
 UN". W. Rep. 27 (Wis.) 
 
 In another case arising under this 
 statute, the facts were that Wash- 
 burn and another had drawn logs to 
 Eland, where they had them manu- 
 factured into lumber and kept and 
 sold the lumber as opportunity of- 
 fered, but resided in Oskosh. They 
 were assessed in Oskosh for this lum- 
 ber. The court held that the assess- 
 ment was without authority and void. 
 Washburn v. City of Oskosh, 19 K. 
 W. Rep. 364 (Wis.) 
 
 These cases are supported by the 
 case of Hurley v. The Town of 
 Texas, 20 Wis. 634. It was there 
 held that logs in transit to a mill 
 to be manufactured into lumber were 
 manufacturers' stock, and should be 
 listed in the town or ward where sit- 
 uated on the 5th day of June in each 
 year. 
 
 'Chief Justice Marshall, in a 
 case involving the power of the state 
 
 of Maryland to require the payment 
 of a license for selling imported 
 goods before opening and selling 
 any package, or other portion, held 
 that this law was unconstitutional 
 and practically levied a tax upon 
 imports, a thing prohibited to the 
 states. He admitted "that there 
 must be a time when this prohibi- 
 tion ceases and the power of the 
 state to tax commences," but added 
 that he could not admit that this 
 point of time was " the instant that 
 the articles enter the country," and 
 with respect to the rule applying to 
 imports, used the following lan- 
 guage: "It is sufficient for the 
 present to say, generally, that when 
 the importer has so acted upon the 
 thing imported that it has become 
 incorporated and mixed up with the 
 mass of property in the country, it 
 has, perhaps, lost its distinctive 
 character as an import, and has 
 become subject to the taxing power 
 of the state; but while remaining 
 the property of the importer, in his 
 warehouse, in the original form or 
 package in which it was imported, a 
 tax upon it is too plainly a duty on 
 imports to escape the prohibition in 
 
SITUS. 
 
 69 
 
 tioh extends to a poll tax while the person is traveling on 
 ships, steamers, rail cars or otherwise from one state or 
 locality to another. It matters not in what form the tax is 
 sought to be imposed. It maj'^ be called a poll tax, a per 
 capita tax, a passenger or alien tax, or a charge on freight 
 transported beyond the state. The Constitution of the 
 United States prohibits the taxation of either property or 
 persons en route from one state or place to another. Any 
 attempt by a state to subject persons or property to taxa- 
 tion, under such circumstances, would be an interference 
 with the right of Congress "to regulate commerce with 
 foreign nations and among the several states and with the 
 Indian tribes." It would also infringe another provision to 
 the effect that vessels bound to or from one state shall not be 
 obliged to enter, clear or pay duties in another state.^ The 
 
 the constitution." Brown v. State 
 of Maryland, 12 Wheat. 441. 
 
 2 Sub. 2, sec. 8; sub. 5, sec. 9, art. 
 I, Const. IT. S. In the Passenger 
 cases, the right of states to levy a 
 tax upon each passenger carried by 
 a ship or vessel entering at a port 
 in any state, or any public carrier 
 bringing passengers by railway, canal 
 boat or other public conveyance into 
 or through a state was involved, and 
 it was held that all such taxation 
 was unconstitutional and void. Tlie 
 decision includes also property while 
 in transitu. A statute had been 
 enacted by the state of [New York 
 making it the duty of the Health 
 Commissioner to collect from the 
 master of every vessel arriving in 
 the port of New York for each cabin 
 passenger $1.50, and for each steer- 
 age passenger $1; also from each 
 coasting vessel 25 cents for each 
 person on board, except that such 
 vessels from New Jersey, Connecti- 
 cut and Rhode Island were not to be 
 required to pay this tax of tener than 
 once each month. The money was 
 to be paid into a hospital fund after 
 deducting salaries and expenses. The 
 court said, in passing upon the valid- 
 
 ity of this statute: "If this power 
 to tax passengers from a foreign 
 country belongs to a state, a tax, on 
 the same principle, may be imposed 
 on all persons coming into or passing 
 through it from any other state of 
 the Union. And the New York 
 statute does in fact levy a tax on 
 passengers on board of any coasting 
 vessel which arrives at the port of 
 New York, with an exception of 
 passengers in vessels from New Jer- 
 sey, Connecticut and Rhode Island, 
 who are required to pay for one trip 
 each month. ... If this may be 
 done in New York every other state 
 may do the same, on all the lines of 
 our internal navigation. Passengers 
 on a steamboat which plies on the 
 Ohio, the Mississippi, or on any of 
 our other rivers, or on the lakes, 
 may be required to pay a tax, im- 
 posed at the discretion of each state 
 within which the boat shall touch. 
 And the same pi'inciple will sustain 
 a right in every state to tax all per- 
 sons who shall pass through its ter- 
 ritory on railroad cars, canal boats, 
 stages, or in any other manner. This 
 would enable a state to establish and 
 enforce a non-intercourse with every 
 
70 
 
 THE LAW OF ASSESSMENTS. 
 
 vessel itself, as appears by the next section of this chapter, 
 is subject to taxation, but not the business or the commerce 
 in which it is engaged.^ As already stated, this rule of 
 
 other state. ... A tax or duty upon 
 tonnage, merchandise, or passengers 
 is a regulation of commerce, and 
 cannot be laid by a state, except 
 under the sanction of Congress, and 
 for the purposes specified in the 
 constitution." Passenger Cases, 7 
 How. 407 (17 Curtis Dec. 137). 
 
 To the same effect is Crandall v. 
 State of Nevada, 6 Wall. 35. 
 
 Keferring to the same question in 
 a later ease the same court said : " A 
 state law, requiring an importer to 
 pay for and take out a license, before 
 he should be permitted to sell a bale 
 of imported goods, is void, and a 
 state law which requires the master 
 of a vessel engaged in foreign com- 
 merce to pay a certain sum to the 
 state on account of each passenger 
 bi'ought from a foreign country into 
 the state, is also void." Oilman v. 
 Philadelphia, 3 Wall. 730. 
 
 8 " Annual taxes upon property in 
 ships and vessels are continually 
 laid, and their validity was never 
 doubted or called in question, but if 
 the states, without the consent of 
 Congress, tax ships or vessels as in- 
 struments of commerce by a tonnage 
 duty, or indirectly by imposing the 
 tax upon the master or crew, they 
 assume a jurisdiction which they do 
 not possess, as every such act falls 
 directly within the prohibition of the 
 constitution." State Tonnage Tax 
 Cases, 12 Wall. 214. 
 
 This case, cited and affirmed in a 
 case where the city of New Orleans 
 by ordinance provided for collecting 
 as levee dues, from all steamboats 
 landing anywhere within the limits 
 of the city, " ten cents per ton if in 
 port not exceeding five days, and five 
 dollars per day after said five days 
 shall have expired." Cannon v. New 
 Orleans, 20 Wall. 578. 
 
 The further consideration of this 
 question oame squarely before the 
 same tribunal in the construction of 
 an act of the legislature of Pennsyl- 
 vania, passed August 25th, 1864, en- 
 titled " An Act to provide additional 
 revenue for the use of the Common- 
 wealth." The section of the act 
 giving rise to the decision below 
 cited, provided in substance and 
 effect for the rendering of an ac- 
 count by the proper financial or 
 managing officer of any corporation 
 or . company carrying freight over 
 their lines of transportation within 
 the state, and for requiring the pay- 
 ment of a tax for each ton of freight 
 carried from one point to another 
 within the state; also for a like ac- 
 count to be rendered by all corpo- 
 rations, companies and individuals 
 doing a like business whose lines of 
 transportation extended into another 
 state, and for payment of a similar 
 tax on each ton of freight carried 
 into or beyond the state. The ac- 
 counting officers of the Common- 
 wealth made a charge against a 
 railroad corporation, having a line 
 extending into another state, amount- 
 ing to $38,361 for freight transported 
 to points within the state, and to 
 $46,520 for freight exported to points 
 without the state, and a tax was 
 levied against the company accord- 
 ingly. The corporation refused to 
 pay the last item, upon the ground 
 that a tax on freight other than that 
 received and delivered within the 
 state of Pennsylvania was " uncon- 
 stitutional and void, because, among 
 other reasons, it was in conflict with 
 the constitution of the United States, 
 which ordains that ' Congress shall 
 have power to regulate commerce 
 with foreign nations, and among the 
 several states.' " The court held 
 
SITUS. 
 
 71 
 
 exemption applies to property wliile being moved from one 
 county or tax district to another within the state, or wliile 
 on the way from a place within the state to some place 
 without the state.* And if property, under such unau- 
 
 that the act was an attempt to tax 
 commerce between the states so far 
 as it provided for levying and col- 
 lecting a tax on the transportation 
 of f reiglit beyond the state of Penn- 
 sylvania, It was argued that the 
 state had a right to levy this as a 
 tax in her right to tax the franchises 
 of her corporations, and for the right 
 of the use of the highways, by vir- 
 tue of her sovereignty or riglit of 
 eminent domain; but while the court 
 conceded the right of a state to tax 
 corporations, it was held that this 
 was not a tax " laid upon the fran- 
 chises of the corporation, nor upon 
 those who hold a part of the state's 
 eminent domain. It is laid upon 
 those who deal with the owners of 
 the highways or means of convey- 
 ance. The state is not herself the 
 owner of the roadways, nor of the 
 motive power. The tax is not com- 
 pensation for services rendered by 
 her or by her agents. It is some- 
 thing beyond the cost of transporta- 
 tion or the ordinary charges there- 
 for. ... It reaches freight passing 
 up and down the Delaware and Ohio 
 rivers, carried by companies who de- 
 rive no rights from grants of Penn- 
 sylvania, who are exercising no part 
 of her eminent domain; and as we 
 have noticed heretofore, the tax is 
 not proportioned to services ren- 
 dered, or to the use made of canals 
 or railways. It is the same whether 
 the transportation he long or short. 
 It must therefore he considered an 
 exaction, in right of alleged sove- 
 reignty, from freight transported, or 
 the right of transportation out of, or 
 into, or through the state — a burden 
 upon interstate intercourse" — and 
 the court held the act to be in con- 
 
 flict with the Constitution of the 
 United States. Case of the State 
 Freight Tax, 15 Wall., 232-278. 
 
 ^Dorsey v. Manlove, 14 Cal. 553, 
 A lot of wood was cut in the state 
 of California and put into the Car- 
 son river, to be floated to the town 
 of Empire, in Ormsby County. To 
 reach its destination it necessarily 
 passed through Douglas County, 
 where it was assessed by the Assessor 
 of that county and the taxes thereon 
 paid. The same property, after it 
 reached Empire, was assessed by the 
 Assessor of Ormsby County for the 
 same year, and payment of tlie tax 
 refused. Upon suit brought to en- 
 force payment of the tax, the court 
 held that the property was not sub- 
 ject to taxation in Douglas County, 
 and that the payment of the tax on 
 the assessment in that county con- 
 stituted no defense to tlie assessment 
 made in Ormsby County. Justice 
 Lewis used the following language 
 in delivering the opinion of the court; 
 "The statute requires or authorizes 
 the assessment of all property in the 
 county during a certain time in each 
 year. Now what property is to be 
 understood as being in tlie county ? 
 Such as is simply passing through it 
 for the purpose of finding a marlcet 
 elsewhere ? Can it be said that such 
 as is, or is destined, for some other 
 county in the state is property in the 
 county through which it is passing, 
 for the purpose of taxation ? Cer- 
 tainly not. To constitute it property 
 for that purpose in any particular 
 county it must be in such situation 
 as to malie it a part of the wealth of 
 that county; it must belong in it; 
 must be incorporated with the other 
 property of the county. Here it is 
 
72 
 
 THE LAW OF ASSESSJIENTS. 
 
 thorized circumstances, be assessed and the tax thereon 
 paid, such assessment and payment will constitute no ex- 
 emption to taxation at the place where the property is sub- 
 ject thereto.* Where personal property, in the regular 
 course of transportation across the territory of another 
 state, is detained, not for sale therein, but awaiting ship- 
 ment or transportation, it is not subject to taxation, what- 
 ever may be its quantity or value.^ 
 
 found that the plaintiff was not a 
 resident of the state of Nevada even 
 at the time of the assessment in 
 Douglas County, and that the prop- 
 erty was simply in transitu to the 
 town of Empire in the county of 
 Ormsby. In such case, it was mani- 
 festly not property taxable in the 
 former county." Conly v. Chedic, 
 7 Nev. 336-341. 
 
 ^ In the same state, the liability of 
 the owner of a circus and menagerie 
 travelling and exhibiting at various 
 places within the state was consid- 
 ered. He was a non-resident and 
 had transported his property from 
 Ohio over railways, exhibiting 
 wherever he supposed an exhibition 
 would be remunerative, until he 
 readied Reno, in Washoe county, 
 Nevada, where the county assessor 
 assessed him for his personal prop- 
 erty for the year 1883. He was a 
 resident of Hamilton county, Ohio, 
 where he continually and uniformly 
 liad paid taxes on the same prop- 
 erty. Under a seizure and threat 
 to sell his property, the owner paid 
 the taxes under protest, amounting 
 to $27.5, and brought an action to 
 recover back the money. The court 
 held, in the following language: 
 
 " The property was not assessable. 
 In the sense of the statute, for the 
 piirpose of taxation, it was not with- 
 in the state. It was passing through 
 the state at the time of the assess- 
 ment. It was here temporarily in 
 the ordinaiy course of business. 
 When he came here plaintiff inten- 
 
 ded to remain In the state but a few 
 days — ^just long enough to fill the 
 engagements advertised — and then, 
 to confinue his journey to other 
 places in a neighboring state. He 
 intended to take away all the prop- 
 erty he brought with him. He 
 was actually ' on the wing,' passing 
 from one state to another. As well 
 might this property be taxed if for 
 the purpose of rest or health, plain- 
 tiff had stopped a few days in 
 Washoe county. As well might a 
 resident of another state be taxed 
 on his money and team, if he comes 
 on a visit to remain a week." Rob- 
 inson V. A. A. Longley, 1 Pac. Rep., 
 p. 377. (Nev.) 
 
 A lot of staves having been pur- 
 chased and hauled to a railroad sta- 
 tion, were piled up awaiting oppor- 
 tunity for shipment to another state 
 which was the residence of the 
 owner. Where so piled, and before 
 shipment, they were assessed for 
 taxation. It was held that the prop- 
 erty was not, under this state of 
 facts, subject to assessment, being 
 regarded as in transitu. The Stan- 
 dard Oil Co. V. Bachelor, 89 Ind. 1. 
 
 A foreign corporation, having its 
 place of business in the city of New 
 York, engaged in shipping coal from 
 Pennsylvania, delivered it on board 
 of vessels at Poyt Johnson in New 
 Jersey. Some fifty tons, upon ''an 
 average accumulated awaiting ship- 
 ment. An assessment of this coal 
 was declared unconstitutional. The 
 court used the following language: 
 
SITUS. 
 
 73 
 
 Sec. 42. situs of registered vessels for taxation, — We have 
 already seen that ships and vessels used for transportation 
 of freight or passengers upon the high seas or navigable 
 waters of the country are to be assessed at their home port 
 nearest to the residence of the owner or owners.-' The dis- 
 tance intervening between the place of registry or residence 
 of the owners does not enter into the question of the situs 
 for taxable purposes.'^ The place of enrollment, while it 
 may be considered, is not decisive of the question. Where 
 the vessels are owned by a corporation, the legal residence 
 of the corporation, and not of the stockholders, fixes the 
 place of residence or domicile of the owner.^ A ship, 
 
 "The transportation of property is 
 a constituent part of commerce, and 
 a tax upon such property in its 
 transportation from state to state, is 
 a regulation of commerce among the 
 states, and cannot be constitution- 
 ally imposed under state authority. 
 State — Lehigh & Wilkesbarre Coal 
 Co. V. Carrigan, 39 N. J. L. 37. 
 
 ' Ante, sec. 30. 
 
 ''The assessor of San Francisco, 
 California, made an assessment 
 against The Pacific Mail Steamship 
 Co., a corporation of New York, for 
 certain steamships owned by the 
 company which were running be- 
 tween San Francisco and Panama, 
 and also running between San Fran- 
 cisco and ports of Oregon Territory. 
 Tlie vessels were registered in New 
 York but formed part of a line for 
 carrying passengers between the 
 places before mentioned. In decid- 
 ing that these vessels were not sub- 
 ject to taxation in California, the 
 court used the following language: 
 
 " We are satisfied that the state of 
 California had no jurisdiction over 
 these vessels for the purpose of tax- 
 ation. They were not properly 
 abiding within its limits, so as to be- 
 come incorporated with the other 
 personal property of the state; they 
 were but temporarily engaged in 
 lawful trade and commerce, with 
 
 their situs at the home port, where 
 the vessels belonged, and where the 
 owners were liable to be taxed for 
 the capital invested, and where the 
 taxes had been paid." Hays v. The 
 Pacific Mail Steamship C, 17 How. 
 597 (overruling the decision in the 
 same case by the Supreme Court of 
 California, 2 Cal. 590.) 
 
 ' The question of the situs for tax- 
 able purposes of two ferry boats, 
 arose upon an assessment made by 
 the assessor of St. Louis, Mo. The 
 boats plied between St. Louis, Mo., 
 and East St. Louis, 111. The com- 
 pany owning the boats was incorpo- 
 rated under the laws of Illinois, and 
 had its principal office in St. Louis, 
 Mo. There its President and other 
 chief officers resided; there the or- 
 dinary business meetings of the 
 Board of Directors were held, and 
 there the seal of the corporation 
 was kept. The company's minor 
 officers, such as engineers and pilots 
 on its ferry boats, resided in East 
 St. Louis, HI., where its real estate 
 was situated; also its warehouse and 
 some other property, and it also had 
 an office there. The ferry boats, 
 when not in actual use, were laid 
 up on the Illinois side of the river, 
 and when in use were not allowed 
 to remain longer than ten minutes 
 at a time when landing on the Mis- 
 
74 
 
 THE LAW OF ASSESSMENTS. 
 
 steamer or vessel may have a large number of owners, and 
 these may be domiciled at long distances from each other 
 
 souri side. The city of St. Louis 
 exacted a ferry license from the 
 company, and charged wharfage to 
 the same, for the privilege of a 
 landing. The most of the stock- 
 holders resided in St. Louis, Mo. 
 None resided in Illinois. The meet- 
 ings of the stockholders to elect di- 
 rectors were held in Illinois, but the 
 meetings of the directors to elect 
 the of&cers and appoint employees 
 were generally held in St. Louis, 
 Mo. All the principal business of 
 the company, done by its directors, 
 superintendent and other agents, 
 was done in St. Louis, Mo. An as- 
 sessment was made in St. Louis, 
 Mo., of the company's ferry boats 
 for the purposes of taxation in St. 
 Louis. These boats had been en- 
 rolled at St. Louis, Mo., under the 
 laws of the United States, which 
 require every vessel to be registered 
 in the district to which she belongs, 
 and which declare that her home 
 port shall he that at or near to which 
 her owner resides. Under this state 
 of facts the Supreme Court of Mis- 
 souri held that these ferry boats 
 were liable to taxation by the city 
 of St. Louis, under its charter au- 
 thorizing the taxation of such prop- 
 erty only as is made " taxable by the 
 laws of the state within the limits 
 of the city." (City v. Wiggins Ferry 
 Co., 40 Mo. 581.) The case was car- 
 ried to the Supreme Court of the 
 United Slates, where the decision of 
 the Supreme Court of Missouri was 
 reversed. Justice Swaynb held 
 that a corporation is regarded, in 
 effect, a citizen of the state which 
 created it ; that it has no faculty to 
 emigrate; that it can exercise its 
 franchise extra-territorially only so 
 far as may be permitted by the policy 
 or comity of other sovereignties; 
 that by consent, express or implied, 
 
 of the local government, it may there 
 transact any business not ultra vires, 
 and "like a, natural person, may 
 have special or constructive resi- 
 dence, so as to be charged with 
 taxes and duties, or be subjected to 
 special jurisdiction. That it is for 
 the local sovereign to prescribe the 
 terms and conditions upon which its 
 presence by its agents and the con- 
 ducting of its affairs shall be per- 
 mitted." St. Louis V. The Ferry 
 Co., 11 Wall. 424; see also Bank of 
 Augusta V. Earle, 13 Peters, 588; 
 Lafayette Ins. Co. v. French, 18 
 How. 405. 
 
 Situs of a sailing vessel — 
 
 In Illinois the situs of a sailing 
 vessel is fixed by statute for taxable 
 purposes at one of three places: 
 First in the county, town, city, vil- 
 lage or district where such vessel 
 belongs ; second, where it is enrolled, 
 registered or licensed ; and third, 
 where it is " kept when not enrolled, 
 registered or licensed." It is made 
 the duty of the owner to list such 
 vessel in one of the three places 
 mentioned, as the fact may be, and 
 when rightfully listed in one place, 
 it is not subject to taxation else- 
 where. The place " where such ves- 
 sel belongs" means where the owner 
 resides. Where a vessel was enrolled 
 In South Chicago, and the owner 
 resided in North Chicago, and the 
 vessel was not in active trade, and 
 was kept in North Chicago, and was 
 listed there by the owner, an assess- 
 ment in South Chicago was enjoined. 
 Halstead v. Adams, 108 111. 611. 
 
 Situs of vessels not registered nor 
 kept- at domicile of owner — 
 
 Under a statute providing for the 
 taxation of " All ships and vessels, 
 or shares in ships or vessels, . . . 
 whether such ships or vessels be at 
 home or abroad at the time of as- 
 
SITUS. 
 
 and in different states. In such cases the "husband and 
 acting manager" represents the owners, and his residence 
 is to be deemed that of the owner in fixing the situs of the 
 vessel for taxation.* The name of the vessel and of the 
 
 sessment," an assessment was made 
 to a resident of Halifax, of vessels 
 which were not registered, and which 
 never were in Halifax. The assess- 
 ment was for a city tax, under au- 
 thority of a statute providing that 
 "The city council shall have power 
 to assess on the inhabitants and the 
 property within the city annually, 
 such sum of money not exceeding, 
 (fee, as may be necessary," &c. Per- 
 sonal property was defined to Include 
 "... all ships and vessels or shares 
 in ships or vessels owned by persons 
 residing or having offices, or doing 
 business within the city, whether 
 such ships or vessels be at home or 
 abroad at the time of assessment," 
 &c. The question was whether 
 vessels which were not registered in 
 Halifax, and had never been there, 
 could be assessed there, and it was 
 decided that they could not. The 
 following is the text of the decision: 
 " I think this property could not be 
 taxed. Under the act, I think the 
 rate upon the value of the real and 
 personal estate means the real and 
 personal estate within the city; it 
 does not mean by fiction of law 
 property which is in England. As 
 regards ships, at home or abroad at 
 the time of assessment, it must 
 mean ships which have been regis- 
 tered at Halifax, the port of regis- 
 try of a ship being her home port. 
 It is too late now to raise the ques- 
 tion whether appellant's vessels 
 should have been registered at Hali- 
 fax, Halifax being the place of the 
 owner's residence. We must assume 
 the vessels were properly registered ;' ' 
 and the learned Chief Justice add- 
 ed, that the vessels not having been 
 registered at Halifax, and never 
 
 having been there, were not actually 
 nor constructively within the city of 
 Halifax, and therefore did not come 
 within the provisions of the statute 
 authorizing assessment of ships and 
 vessels. City of Halifax v. Kenny, 
 3 Cana. S. Ct. E. 497. 
 
 A foreign corporation was half 
 owner of a transfer boat registered 
 at Cairo, Illinois, which made con- 
 nections between Cairo, 111., and 
 Fillmore, Ky. The corporation had 
 its principal office in Cairo, and the 
 boat, when not in use, lay up at 
 Cairo, where the persons employed 
 in running and taking care of the 
 boat resided. It was held that Cairo 
 was the proper place to tax the boat, 
 and that the assessment there was 
 valid. Irvin v. New Orleans & St. 
 Louis, &c. E. E. Co., 94 111. 105. 
 
 * The provisions relating to the 
 registration of ships and vessels is 
 found in sec. 4141 E. S. U. S., and 
 was passed December 31st, 1792, and 
 is in the following words: "Every 
 vessel, except as hereinafter provi- 
 ded, shall be registered by the col- 
 lector of that collection district 
 which includes the port to which 
 such vessel shall belong at the time 
 of her registry; which port shall be 
 deemed to be that at or nearest to 
 which the owner, if there be but 
 one, or if more than one, the hus- 
 band or acting and managing owner 
 of such vessel usually resides." It 
 is also provided (section 4178) that, 
 " The name of every registered ves- 
 sel, and of the port to which she 
 belongs, shall be painted on her 
 stern, on a black ground in white 
 letters, of not less than three inches 
 in length." The enrollment of a 
 vessel employed in the coasting 
 
76 
 
 THE LAW OF ASSESSMENTS. 
 
 port to which she belongs are required to be painted on her 
 stern. It would seem that these provisions are plain enough 
 to enable assessors to determine, from an exterior inspection 
 of the lettering on the stern of a vessel where it is subject 
 to taxation. But the question of the residence of the owner 
 or owners being a question of fact, very complicated cases 
 have arisen upon attempts to subject vessels to taxation 
 at the wrong place.^ It must be borne in mind that the 
 enrollment of a vessel does not supplant her registry — the 
 situs for taxation after the enrollment remains the same as 
 before.* 
 
 trade, at any specified locality, does 
 not determine tlie place for taxation 
 of the vessel. In the case below 
 cited, the plaintiff as owner regis- 
 tered a, vessel in New York which 
 was also the place of his residence. 
 The vessel was then taken to Mo- 
 bile, Ala., and there enrolled and 
 licensed to ply between that city and 
 Kew Orleans as a coasting steamer 
 in the carrying trade, and used until 
 the trial of the action in carrying 
 passengers and freight, also the Uni- 
 ted States mails between the cities 
 named. While thus employed she 
 was seized for taxes assessed against 
 her by the city of Mobile, Ala., for 
 the years 1866 and 1867. During all 
 this time the owner of the vessel re- 
 mained the same as when registered, 
 and his residence remained the same. 
 The captain of the vessel, also the 
 agent conducting the business of the 
 vessel, were, during the tiipe for 
 which the tax was assessed and lev- 
 ied, residents of Mobile. The agent 
 had an office at Mobile where he em- 
 ployed those who assisted him, but 
 was under a superior agent residing 
 at New Orleans, who paid the cap- 
 tain and other officers of the vessel. 
 The question under these facts, was 
 whether the vessel was subject to 
 taxation under the laws of Alabama, 
 and in determining which the court 
 used the following language: "This 
 
 vessel was owned by and employed 
 in the service of a resident of the 
 state of New York. It was previ- 
 ously and presumptively taxable un- 
 der the authority of that state and 
 of that state only. It is urged that 
 her status or condition was affected 
 by what was done, or neglected, in 
 regard to her register and enroll- 
 ment. . . . Permanent registry, there- 
 fore, as appears by this provision" 
 (sec. 4141 E. S. U. S.) "is required 
 to be made at the home port of the 
 vessel, and what is meant by the 
 home port Is clearly and plainly 
 defined. Registry must be made at 
 her home port, and the same section 
 provides that the name of the vessel 
 and the port to which she shall so 
 belong" (sec. 4178 id.) "shall be 
 painted on her stern, on a black 
 ground in white letters of not less 
 than three inches in length. All 
 persons, therefore, have the means 
 of ascertaining the name of the ves- 
 sel, and her home port, and her 
 shipping papers, which include a, 
 copy of her register or enrollment, 
 are by law required to furnish the 
 same information. The act of Feb- 
 ruary 18th, 1793, prescribes the 
 terms and shows the effect of enroll- 
 ment in another port. In substance 
 the permanent register is given up 
 to the collector of that port, and a 
 certificate is issued showing the 
 
t . SITUS. 77 
 
 • 
 
 Sec. 43. That personal property follows owner— a legal 
 action.— The doctrine that personal property has no locality 
 or situs separate from the domicile of the owner and follows 
 Lis person, is a legal fiction. "No fiction shall extend to 
 work an injury," says Blackstone. This fiction cannot be 
 interposed against the sovereign power of the state to tax 
 the personal property of absent or non-resident owners, 
 actually within the limits of the state, if the same character 
 of property would be taxable in hands of a resident owner.^ 
 Lands, or real property which is immovable, all acknowledge 
 to have a situs without regard to the domicile of the owner. 
 
 Chattels, also have an actual situs, although they may be 
 moved from one place to another ; and this situs as a matter 
 of fact, is not dependent upon the domicile of the owner, even 
 in a remote degree. In a legal sense, its situs is the domicile 
 of the owner until a different one is acquired. When it 
 becomes severed from the domicile of its owner and actually 
 located in another state or district it becomes subject to 
 assessment therein ; and this is also true of all taxable prop- 
 name of the vessel, the port to passengers in Pennsylvania, could 
 which she belongs, and that to which be taxed in Pennsylvania on its cap- 
 she is destined. This certiiicate is ital stock, property which, under no 
 temporary in its character, and is circumstances, could have a situs in 
 based upon the proposition, that the Pennsylvania for taxation, is con- 
 vessel belongs, or has her home trary to the current ruling in cases 
 port at a different place from that involving similar facts. See St. 
 at which she receives this certiiicate. Louis v. The Ferry Co., 11 Wall. 
 There was nothing, therefore, in her 430; Irvin v. New Orleans & St. 
 enrollment in the port of Mobile, Louis, &c. K. E. Co., 94 111. 105; 
 that affected her registry in New Middletown Ferry Co. v. Town of 
 York, or her ownership in that Middletown, 40 Conn. 70. 
 place, or that tended to subject her ^ Justice Stobt says of this legal 
 to the taxation of the state of Ala- iictlon that it "yields, whenever it 
 bama, under the circumstances sta- is necessary for the purposes of jus- 
 ted." Morgan i;. Parham, 16 Wall, tice, that the actual situs of the thing 
 472^75, 476. should be examined. A nation within 
 
 The case of Commonwealth v. whose territory any personal prop- 
 Gloucester Ferry Co., 98 Pa. St. 105, erty is actually situate has an entire 
 seems to have been decided upon dominion over it, while therein, in 
 principles in direct antagonism to point of sovereignty and jurisdic- 
 this case. That a corporation crea- tion, as it has over immovable prop- 
 ted and having its residence in New erty situate there." Story Confl. 
 Jersey, merely leasing a wharf and Laws, § 550; People ». Ogdensburgh, 
 landing and receiving freight and 48 N. Y. 395. 
 
78 THE LAW OF ASSESSMENTS. 
 
 erty, including that class commonly called solvent debts or 
 choses in action. Notes, bonds and other contracts for the 
 payment of money, commonly designated as choses in action, 
 for taxable purposes are treated as other personal property. 
 By a legal fiction all personal property is regarded as fol- 
 lowing the person of the owner and subject to the law of his 
 domicile. But this is only a fiction of the law which is eon- 
 trolled by the fact when taxation is involved. This charac- 
 ter of personal property like other tangible property is 
 capable of acquiring a situs apart from the domicile of the 
 owner. When the owner of such property is domiciled 
 without the state, and the same is in the custody and con- 
 trol of an agent or other person within the state, it becomes 
 subject to taxation as other tangible personal property of 
 non-resident owners, at the domicile of the person having 
 possession thereof.^ Personal property, having an actual 
 ntus without the limits of a state cannot be taxed therein 
 without the violation of the principles of natural law. It 
 would be taxation Avithout compensation. The tax is in- 
 curred where property is actually situated and receives 
 legal protection.^ This is the benefit supposed to be de- 
 
 ''A statute of New York con- as being within the state. . . . Lands 
 tained this provision: " All lands have an actual siiiis, which of course 
 and all personal estate, tcithin this is immovable. Chattels also have an 
 state, whether owned by individuals actual situs, although they can be 
 or corporations, shall be liable to moved from one place to another, 
 taxation, subject to the exemptions . . . With us taxation is upon prop- 
 hereinafter specified." In a leading erty, and so it is in all the states of 
 case involving the situs of personal the Union. So also in general it is 
 property, under this statute, for tlie in all countries. The logical result 
 purposes of taxation, Comstock, is that the tax is incurred within the 
 Ch. J., used the following language: jurisdiction and under the laws of 
 " If we are willing to take this Ian- the country where it is situated. . . . 
 guage without attempting to obscure The legislative definition of taxable 
 it by introducing a legal fiction as to property refers in that sense to the 
 the situs of personal estate, its mean- actual situs of personal, not less 
 ing would seem to be plain. Lands than real estate. ... It is said, 
 and personal property having an ac- however, that personal estate, by a 
 tual situation within the state are fiction of law, has no situs away 
 taxable, and by a necessary implica- from the person or residence of the 
 tion no other property can be taxed, owner, and is deemed to be always 
 . . . Eeal and personal estate are present with him at the place of his 
 included in precisely the same form domicile. The right to tax the re- 
 of expression. Both are mentioned lator's property situated in New Or- 
 
SITUS. 
 
 79 
 
 rived by the owner for the tax he pays, and where there is 
 no protection there are no benefits. A state cannot protect 
 property not within its territorial and jurisdictional limits. 
 But to authorise an assessment of personal property in 
 any other state or county than the one in which the owner 
 resides, it must appear that the property is being, to some 
 extent, kept and maintained in such state or county and is 
 not tliere casually nor in transitu; nor temporarily, in the 
 ordinary course of business or commerce.^ But if the prop- 
 erty be found in the county or district and assessed where 
 found, and it does not appear that it was in transitu or tem- 
 porarily there, the assessment will be maintained.* Or if 
 
 leans and New Jersey rests upon the 
 universal application of this legal 
 fiction ; and it is accordingly insisted 
 upon as an absolute rule or principle 
 of law, which to all intents and pur- 
 poses transfers the property from the 
 foreign to the domestic jui'isdiction, 
 and thus subjects it to taxation un- 
 der our laws. Let us observe to 
 what results such a theory will lead 
 us. The necessary consequence is, 
 that goods and chattels, actually 
 within the state, are not here, in 
 any legal sense or for any legal pur- 
 pose, if the owner resides abroad. 
 They cannot be taxed here because 
 they are with the owner, who is a 
 citizen or subject of some foreign 
 state. On the same ground, if we 
 are to have harmonious rules of law, 
 we ought to relinquish the adminis- 
 tration of the effects of a person 
 resident and dying abroad, although 
 the claims of domestic creditors may 
 require such administration. So in 
 the case of the bankruptcy of such 
 a person, we should at once send 
 abroad his effects, and cannot con- 
 sistently retain them to satisfy the 
 claims of our citizens." Hoyt v. 
 The Comm'rs of Taxes, 23 K. Y. 
 225. 
 
 The doctrine is well established 
 that personal property separated from 
 the domicile of the owner cannot be 
 
 taxed at his domicile, and may be 
 taxed where it is situated, or to the 
 person in possession and control 
 thereof. Where the facts were that 
 a testator at the time of his death 
 was the owner of personal property 
 without the state, which he directed 
 his executor to pay the income of to 
 persons residing in the state, and 
 that his executor resided out of the 
 state, it was held that under the 
 statutes of Massachusetts the execu- 
 tor was not assessable for this per- 
 sonal property; but that after three 
 years the persons to whom the in- 
 come was payable would be taxable 
 therefor. The latter ruling w.^s not 
 necessary to decide the case, and it 
 is doubtful if such an assessment 
 could be sustained. The only taxa- 
 ble property under this state of facts,' 
 owned or possessed within the state, 
 is the right of income from the per- 
 sonal property situated without the 
 state — a chose in action, held and 
 owned by the persons entitled to 
 such income. Dallenger v. Eappello, 
 14 Fed. Rep. 32 (Mass.) 
 
 » reople V. Niles, 35 Cal. 286-7. 
 
 ^ An assessment was made by the 
 city of Oakland upon a steamboat, 
 a county other than the one in which 
 the vessel was enrolled and in which 
 the owner resided. At the time of 
 the assessment the boat was lying at 
 
80 THE LAW OF ASSESSMENTS. 
 
 the property be in possession of an agent who purchased it 
 for the owner and is storing or keeping it subject to his 
 order, notwithstanding the fact that the possession is merely 
 temporary, it is assessable to the agent where found. Where 
 the statute provides for listing property to the agent of the 
 owner or person having charge of the same, when the owner 
 resides out of the county, and property is used in different 
 localities or counties, it is to be assessed to the owner, his 
 agent or the person having charge thereof, at the place 
 of business where the agent or owner, or person having 
 charge of the property, manages the same.^ 
 
 Sec. 44. That personal property follows owner — a legal fic- 
 tion, continued. Rules as to ohoses in action. — It has already 
 been announced that the doctrine of situs as to personal 
 property includes choses in action; also that the fiction of 
 law, treated of in the preceding section, in the absence of 
 an actual situs of personal tj', distinct and separate from the 
 domicile of the owner, is applied. More especially is this so 
 in respect to choses in action. 
 
 Where an agent residing in a different county in the 
 same state from that of his principal loans the money of his 
 principal and takes notes and mortgages payable to his 
 principal and holds them for collection and re-investment, 
 but always subject to the order of his principal, the assess- 
 ment should be made to the principal and not to the agent 
 unless otherwise expressly provided by statute. ^ Solvent 
 
 anchor in San Antonia Creek, and the owner resided. But that in the 
 within the city limits of Oakland, absence of an express finding on 
 It did not appear that the boat was tliat point, it would be presumed 
 there only temporarily, in the prose- that the judgment was based on 
 cution of a voyage, or for what pur- facts to the effect that the boat was 
 pose. In a suit to enforce payment not in transitu, or there for a mere 
 of the tax the court held that if it temporary purpose, and was con- 
 had appeared that the boat was only sequently subject to taxation, and 
 in transitu, or there for a mere tem- rightfully taxed. City of Oakland 
 porary commercial purpose, the case v. Whipple, 39 Cal. 114; Walton v. 
 would come within the principles an- Westwood, 73 111. 126. 
 nounced in the case of the People jj. ^ City of Dubuque ». The Illinois 
 Niles, 35 Cal. 282, which were that Central R. Co., 39 Iowa 83-85. 
 property thus transiently within the i B. had notes and mortgages be- 
 county could not be there taxed, but longing to his sisters for investment, 
 should be taxed in the county where but held them subject to their order, 
 
SITUS. 
 
 81 
 
 debts, altliough secured by mortgage on property situated 
 in the same state, but in another county than the one in 
 
 and they had exclusive control of 
 them, and had control of the securi- 
 ties upon re-investment. B. was a 
 resident of Ithica, in Tompkins 
 County, and his sisters were resi- 
 dents of Rochester, Monroe County. 
 IJ. was assessed on account of tliese 
 notes and mortgages against his pro- 
 tost, thus: "Douglas Boardman, 
 agent, personal property, $12,500." 
 This tax was paid under protest, 
 and an action brought to recover 
 hack the money. On an appeal from 
 an order requiring its payment the 
 court, recognizing the doctrine of 
 tlie opinion in Hoyt v. Commission- 
 ers of Taxes (2.3 N. Y. 225 ), affirmed 
 the order, holding that the assess- 
 ment against the agent was improp- 
 erly made for the reason that the 
 owners of this property resided in 
 the state, and had control over it. 
 " The owners resided in this state, 
 had full control over [the notes and 
 mortgages,] but for the time being 
 the manual possession was in the 
 appellant." Boardman v. Board Su- 
 pervisors of Tompkins Co., 85 N. 
 Y. 361. 
 
 The statute of Michigan, as to the 
 situs of personal property for taxa- 
 tion, provided that "All personal 
 property, except as hereinafter pro- 
 vided, shall be assessed to the owner 
 in the township of which he is an 
 inhabitant on the second Monday of 
 April of the year for which the as- 
 sessment is made." The exception, 
 so far as it relates to personal prop- 
 erty in possession of an agent within 
 tlie state, read in the following lan- 
 guage: "Personal property under 
 tlie control of a trustee or agent, 
 whether a corporation or natural 
 person, may be assessed to such 
 trustee or agent in the town where 
 he resides." The owner of choses 
 6 
 
 in action, consisting of notes se- 
 cured by mortgage amounting to 
 $35,000, resided in Richland Town- 
 ship. He placed these securities in 
 the hands of his agents in Bear 
 Creek Township for collection and 
 re-investment. The Assessor of Bear 
 Creek Township assessed these se- 
 curities to the agents at a valuation 
 of $5,000. The Assessor of Rich- 
 land Township, upon a, representa- 
 tion of the facts that these securities 
 were not in possession of the owner 
 but in possession of agents, under 
 the facts stated omitted them from 
 assessment; but the board of review 
 of the town included tliem against 
 tlie owner in his personal assess- 
 ment; but upon the owner appear- 
 ing and offering to swear that these 
 securities were in possession of his 
 agents, the boai'd adjourned the 
 meeting, and after ascertaining that 
 the owner was assessed at only 
 $5,000 in Bear Creelc Township on 
 these securities, reduced their own 
 assessment to the extent of $5,000. 
 The owner paid the taxes upon this 
 part of his assessment under pro- 
 test, and sued to recover hack the 
 money. The case involved a con- 
 strnction of these statutory pro- 
 visions: whether they were manda- 
 tory or directory; wliether if was 
 optional witli the Assessor of Rich- 
 land Township to assess tlie owner 
 for tlie whole, or if in separate 
 items for only a portion of these 
 ohoses in action, and if a similar 
 option existed on part of the Bear 
 Creek Township Assessor ; or- 
 whether the act was mandatory 
 and required that all these securi- 
 ties be assessed in one or the other 
 of these townships. The majority 
 of the court, among them Ch. J. 
 CooLEY, held' that there was nolh- 
 
THE LAW OF ASSESSMENTS. 
 
 which the owner resides, in the absence of a statute direct- 
 ing otherwise, must be assessed to the owner in the county 
 
 ing in the statute that prevented the 
 Assessor of Richland Township from 
 assessing all or any separate items of 
 these securities. It was held hy the 
 whole court that the assessment was 
 also proper in Bear Creek Township 
 to the owner's agents. The dissent- 
 ing opinion of Justice Champlin 
 held that the assessment could only 
 be made by the Assessor of Bear 
 Creek Township against the owner's 
 agents. The following extract fiom 
 Ch. Justice Cool'Ey's opinion will 
 show his views: 
 
 " Anotlier question is, whether all 
 ttie securities in question in this case 
 can be regarded as having been in 
 fact assessed to the agents. It will 
 be observed tliat while the statute 
 for the general rule prescribes that 
 personal property shall be assessed 
 to the owner where lie resides, it 
 uses the word 'may' in providing 
 for an assessment to the trustee or 
 agent; so that there would seem to 
 be no illegality in assessing a part of 
 the personalty in the hands of an 
 agent to the owner himself, and an- 
 other part to the agent, provided the 
 property consists of distinct items, 
 capable of separate assessment, as 
 was the case here. And as we must 
 suppose the Petosky (Bear Creek 
 Township) Assessor intended to per- 
 form his duty, we ought to assume 
 that he intended to assess a small 
 part of the securities only; not that 
 he was binding himself to a scheme 
 to enable the plaintiff to evade the 
 law and escape his just share of the 
 burdens of government." (p. 176.) 
 
 This opinion was concurred in 
 "by the other judges except Justice 
 CHAMPLiTf, who took an opposite 
 view, and held that the statute was 
 not directory as to the situs of per- 
 sonalty for assessment under the 
 
 facts stated, but mandatory ; and 
 that no option existed as between 
 one of two townships or wards in 
 the case stated ; but that it was im- 
 perative upon the Assessor of Bear 
 Creek Township to make the assess- 
 ment. The following is the lan- 
 guage of the dissenting opinion on 
 this point: "The general rule laill 
 down is, that personal property s7wH 
 be assessed to the owner in the town- 
 ship of which he is an inhabitant, on 
 the second Monday of April of the 
 year for whicli the assessment is 
 made. The excepted cases are 
 given in section 11. Each of the 
 sub-divisions of the section except 
 the seventh requires that the prop- 
 erty specified shall he assessed ac- 
 cording to the situs ; but the seventh 
 sub-division uses the words ' may be 
 assessed,' etc. The word 'may,' in 
 this sub-division, must be construed 
 to read ' shall,' according to well 
 settled rules of construction. There 
 can be no doubt that, in this excep- 
 tion made by the statute to the gen- 
 eral rule, the legislature meant to 
 impose a positive and absolute duty, 
 and not merely give a discretionary 
 power to assess the personal prop- 
 erty under the control of trustees 
 or agents in the town where such 
 trustee or agent resides. To hold 
 the statute directory or permissive 
 merely, exposes this class of prop- 
 erty either to double taxation or 
 else enables it to escape taxation 
 altogether, without any method pro- 
 vided to determine where it should 
 be assessed." (p. 180.) 
 
 The dissenting opinion would seem 
 to be the better construction of the 
 statute, furnishing a rule of cer- 
 tainty for the situs of personal prop- 
 erty in the possession and control of 
 agents for taxable purposes. To 
 
SITUS. 
 
 83 
 
 in which the owner resides or has his domicile. ^ In Oregon 
 by express statutory provision, solvent debts secured by 
 mortgage are required to be assessed in the county wherein 
 the land mortgage is situated without reference to the dom- 
 icile of the mortgagee.^ Where one acts as the agent of 
 
 liold this statute to be merely direc- 
 tory, and not mandatory, where per- 
 sonal property is in the possession 
 and control of agents, where both 
 the owner and agents reside within 
 different assessment districts in the 
 same state, would be to make it un- 
 certain where or to whom to assess 
 It. If assessed to botli owner and 
 agent it would be a double taxation, 
 and which of the two must yield could 
 only be determined in favor of the 
 assessment to the owner, upon the 
 ground, as Ch. Justice CooijEy re- 
 marked on this point, "not only, 
 because he is the owner, but because 
 the place of his residence is best en- 
 titled to the tax;" and in ease of a 
 double taxation the assessment lo 
 tlie owner " should take precedence 
 over the other." This is not so 
 clear, perhaps, to the ordinary mind 
 as it seemed to the learned judge. 
 Suppose it to have been tangible 
 personal property, e. g., horses or 
 cattle. They are protected by the 
 laws of the tax district where they 
 are kept in charge and possession of 
 the agents. The protection afforded 
 by the law to persons and property 
 are supposed to be the equivalent 
 for the taxes which are exacted. 
 The owner resides in one tax dis- 
 trict: his horses and cattle are kept 
 by his agent in another tax district. 
 Which of the two is best entitled to 
 the tax assessed upon the value of 
 the property? The fact that the 
 property consists of choses in ac- 
 tion, controlled by agents, can 
 scarcely make the rule to differ. 
 But the uncertainty attending the 
 construction of the majority opinion 
 would seem an objection to it. On 
 
 this point the author of the dissent- 
 ing opinion uses the following lan- 
 guage: "The tax law of 1882 was 
 intended by the legislature to con- 
 tain a system for the collection of 
 revenue which should be harmonious 
 in its several provisions, and which 
 should distribute the burdens of tax- 
 ation upon the objects upon which 
 it should be . laid, in an equal ratio 
 based upon the true cash value 
 thereof. Any construction of the 
 law, therefore, which subjects prop- 
 erty belonging to a person to double 
 taxation must be inherently wrong, 
 and where the law directs property 
 to be assessed in a certain place, or 
 to a, certain person, it necessarily 
 excludes and prohibits its taxation 
 in another place, or to another per- 
 son." (p. 180.) Curtis D. Township of 
 Eichland, 23 N. W. Kep. 175. (Mich. ) 
 
 "People V. Park, 23 Cal. 138. See 
 cases cited. 
 
 s Session Acts of Oregon, 1882, 
 p. 64. 
 
 The Supreme Court of Oregon 
 held this act to be valid; that the 
 power to tax the mortgage debt when 
 owned by a non-resident of the state 
 is not involved In the question of the 
 power of the state to tax the mort- 
 gage. " A mortgage as such is in- 
 corporeal property. It may be the 
 subject of taxation. . . . Concede 
 that the debt accompanies the re- 
 spondent's person, and is without 
 the jurisdiction of the state. But 
 the security she holds is Oregon se- 
 curity. It cannot be enforced in any 
 other jurisdiction. It is local iu 
 Oregon, absolutely as the land which 
 it binds. . . . The question Is wholly 
 one of power, and since the power of 
 
84 THE LATV OF ASSESSMENTS. 
 
 another who is a non-resident, but does not have possession 
 or control of the note or other evidences of indebtedness 
 taken to secure the loans, he is not taxable individually nor 
 as agent for the nionej'' so loaned as solvent debts or choses 
 in action.* The other side of the question; the liabilitj", 
 under such circumstances, of the owner of the indebtedness, 
 at his domicile, to taxation upon such notes and evidences 
 of indebtedness, due to him for monej' loaned and payable in 
 a foreign state, becomes a proper and necessary subject of 
 inquiry. Where such indebtedness exists as a simple debt; 
 as an account or liquidated demand, not payable at any 
 particular place out of any particular fund or property at 
 any particular place, and the payment is not secured by any 
 mortgage, pledge or lien upon property at any particular 
 place in another state, the question seems free from doubt 
 or difficulty; and the evidences of indebtedness or tlie credits, 
 by whatever name known or called, are taxable to the owner 
 at his domicile, regardless of the domicile of the debtor. 
 But when the debt has been evidenced by note, bonds, or 
 other instruments of writing, and the payment thereof pro- 
 vided for and secured by deed, mortgage, pledge or lien upon, 
 or out of designated real or personal property or funds, 
 located and situated at some particular place without the 
 state, the question of the gitus of the indebtedness or credit, 
 for taxable purposes, becomes a matter of controversy. 
 
 But the weight of authority is clearly in favor of the 
 doctrine, that in all such cases, choses in action of the char- 
 acter stated are taxable at the domicile of the owner. 
 It is only when the debt is secured by deed or mortgage 
 on property situated without the state, that a controversy 
 arises. The position is taken, with much plausibility, 
 that the debt, in such cases, has its situs where its payment 
 is secured and enforceable ; that as a matter of fact a debt 
 has no situs ; that only a corpus can have a situs, and that a 
 debt is " neither visible, tangible nor pon,derable " and has 
 neither situs nor corpus, and does not, in reality, follow the 
 
 the state over the mortgage is as ex- is constitutional limitation to the 
 
 elusive and complete as over the land contrary." Mumford u. Sewell, 3 
 
 mortgaged, the mortgage is subject West Coast E., 713 (Or.) 
 to taxation by the state, unless there * Foresman v. Byrnes, 68 Ind. 254. 
 
SITUS. 
 
 85 
 
 person of the owner to Lis domicile, although he may trans- 
 fer it there ; that a debt is an equitable title in the property 
 of the debtor, and inheres as a title in the property whicli 
 it represents and that consequently its situs for taxable 
 purposes is where it is payable and enforceable. While 
 there is some authority for these positions, the weight of 
 authority, as before stated, is the other way, and all choses 
 in action, so far as taxable, whether their payment be secured 
 on property situated without the state or otherwise, are 
 held to be taxable at the domicile of the owner.^ Any 
 
 ^ In the case of Kirtland v. Hotch- 
 kiss, a resident of Connecticut loan- 
 ed to a resident of Illinois money 
 secured by a deed of trust of real 
 property, situated in the city of Chi- 
 cago. The loan was evidenced by 
 bonds, in each of which occurs the 
 words and figures following; "that 
 it is made under, and is in all 
 respects to be construed, by the laws 
 of the state of Illinois, and is given 
 for an actual loan of money ($3,000), 
 made at the city of Chicago by the 
 said Charles W. Kirtland, to said 
 Edmund Cummings (the obligor), on 
 the day of the date hereof (July 17th, 
 1869)." The payment of the loan 
 was secured by a deed of trust for a 
 lot of land in the city of Chicago, 
 111., conveyed to a third party, to be 
 by him held till time of payment, 
 and If not paid, with power to sell 
 and convey, and to pay the loan 
 from the proceeds of the sale. The 
 question here was the situs of this 
 loan, for the purposes of taxation; 
 in Illinois or in Connecticut. The 
 case decides that it is competent for 
 the legislature of the state to pro- 
 vide for the taxation in the hands 
 of the owner of such notes, bonds 
 and credits, for moneys loaned to 
 tlie residents of other states. A dis- 
 senting opinion by Justice Fosteb 
 gives the opposite view of the ques- 
 tion. A few extracts will be neces- 
 sary in order to give an understand- 
 
 ing of this able opinion. "Tax- 
 ation and protection are correlative 
 terms. Protection to the person is 
 the ground upon which the right 
 to tax the person rests. Protection 
 to the business, protection to that 
 portion of the property not taken by 
 the tax, is the compensation for all 
 legitimate taxation on business or 
 on property. The person must be 
 domiciled within the state to be sub- 
 ject to a personal or poll tax ; the 
 business or property must also be 
 within the territory of the state to 
 confer jurisdiction over them. . . . 
 That the person of the plaintiff is 
 witliin the jurisdiction, and subject 
 therefore to the taxing power, is ap- 
 parent from the record. This tax, 
 however, is not imposed on the per- 
 son; it is imposed on the property 
 of the plaintiif, and as such it must 
 be sustained, if sustained at all. . . . 
 Personal property of whatever it may 
 consist, though capable of being 
 transported from place to place, if it 
 be of a visible and tangible kind, 
 would seem, in the nature of things, 
 to follow in the same rule " (as real 
 estate — taxable wherever situated, 
 for the reiison that that government 
 only can protect it), "and for the 
 same reason; that is, to be subject 
 to taxation by the state within whose 
 jurisdiction it is situate, as that state 
 only has dominion over it, and as 
 that state only can afford it protec- 
 
88 
 
 THE LAW OF ASSESSMENTS. 
 
 other rule would subject the same debt or credit to taxation 
 at the same time by two independent governments. 
 
 And this is an embarrassment attending the effort in some 
 states to tax mortgages securing debts on real estate, to the 
 
 tion. Kow if the property be con- 
 sidered real property, it being in Illi- 
 nois, any tax upon it by Connecticut 
 would be extra-territorial and void. 
 If it be considered personal property 
 of a visible and tangible character, 
 it is still in the state of Illinois, and 
 so just as much out of the dominion 
 and beyond the jurisdiction of the 
 state of Connecticut as though it 
 were real property. If we consider 
 the property to be an interest in real 
 or personal property, or a title, in- 
 choate, equitable, or legal to such 
 property in Illinois, such interest, or 
 such title, is no legitimate subject of 
 taxation in Connecticut. The cor- 
 2ms and situs of this property being 
 in Illinois, and subject, of course, to 
 taxation there, because within her 
 jurisdiction, no interest in it, no title 
 to it, can be taxable in Connecticut. 
 Such a claim involves one of two 
 absurdities: either that the same 
 property may be in two places at the 
 same time, or that two independent 
 governments can have jurisdiction 
 over the same subject matter at one 
 and the same time. But the prop- 
 erty of the plaintiff on which this 
 tax has been imposed is not real 
 property, nor is it personal property, 
 of the character here considered. 
 . . . The plaintiff loaned money in 
 the city of Chicago, in the state of 
 Illinois, on bonds conditioned for its 
 repayment, and secured by deeds of 
 trust. . . . The deed ... is a convey- 
 ance in fee by Edward A. Cummings 
 and wife of a lot of land in the city 
 of Chicago, to Norman C. Perkins 
 of said city, to be held by him in 
 trust, as security for the payment of 
 said loan, with power to sell and 
 convey the same, and apply the pro- 
 
 ceeds in payment of the loan, in case 
 of default on the part of the said Ed- 
 mund A. Cummings to perform the 
 stipulations of said bond. It is quite 
 obvious that Cummings has incurred 
 a debt to Kirtland, and that Eirtland 
 has a claim against Cummings. Cum- 
 mings is the debtor, Kirtland the 
 creditor. Has this debt a situs ? If 
 it has, where is it ? In Illinois or in 
 Connecticiit ? The contract to loan 
 was made in Illinois ; there the cred- 
 itor parted with his money; there, is 
 the property pledged for its repay- 
 ment; there, the debtor is domiciled, 
 there, the trustee resides. This seems 
 to indicate Illinois as the situs of this 
 debt. So far as it is a thing having 
 a substantial existence, it is there 
 and not elsewhere. Our own statute 
 provides that money secured by 
 mortgages ivpon real estate in this 
 state shall be set on the list and 
 taxed only in the town where said 
 real estate is situated. This mani- 
 festly recognizes the situs of the 
 property pledged as security for a 
 debt, as the situs of the debt. But 
 a debt has no situs, only a material 
 thing can have a corpus, and only a 
 corpus can have a sites, for it is the 
 location of the corpus that consti- 
 tutes a situs. A debt is neither visi- 
 ble, tangible, nor ponderable; it has 
 no situs, no corpus. It is a misno- 
 mer to call it property. In legal 
 phrase it is but a chose in action, a 
 jus incorporate. It is an equitable 
 title in the property of the debtor, 
 and it inheres as a title in the prop- 
 erty which it represents. It does 
 not follow the person of the owner 
 in his domicile, though he may 
 transfer it there." Kirtland v. 
 Hotchkiss, 42 Conn. 426, 442. 
 
SITUS. 87 
 
 mortgagee, and allowing a deduction in favor of the mort- 
 gagor to the extent of the mortgage debt from the assessed 
 valuation of the land, and including in the provision as well 
 a debt so secured, whether owned and held by a resident 
 or non-resident. When the mortgage of a non-resident is 
 ¥0 taxed, and the rule of law as to the situs of debts, whether 
 their payments be secured by mortgage without the state or 
 not, is enforced, it must necessarily result in a double tax 
 — one to the creditor at the place where the land is situated 
 which is included in his mortgage, and the other at his dom- 
 icile, if choses in action are made taxable property there. 
 
 And there seems to be no way of avoiding this result un- 
 less the doctrine be applied, contended for by Justice Foster 
 in his dissenting opinion in Kirtland v. Hotchkiss, (42 Con- 
 necticut, 442) which is to fix the situs of a debt secured hy 
 a lien on property, where the property is situated and enforce- 
 able. A clear line of distinction has been drawn between 
 the cases where loans are made to residents of another 
 state and security by mortgage or otherwise taken upon real 
 property and the notes, bonds and mortgages or other secur- 
 ities are taken in the name of an agent, or where the loans 
 are negotiated by an agent who retains the securities, with 
 power to collect the interest and principal when due and re- 
 invest the money in other loans in like manner, and ordinarj'' 
 indebtedness, owing by persons residing without the state 
 and not so secured. In the cases first stated it is held that 
 the debt or credit is not taxable to the owner at his domi- 
 cile while the evidences of the debt are taken in the name 
 or are in the possession of the agent, subject to taxation in 
 his hands. Upon principle there would seem to be no differ- 
 ence between the two classes of cases. The mere custody of 
 the evidences of the debt, ought not to make a distinction as 
 to their situs for taxable purposes ; and yet this seems to be 
 the turning point in determining whether the situs adheres to 
 or has become detached from the domicile of the owner. In 
 determining, therefore, whether or not a debt is taxable to 
 the owner at his domicile, it becomes necessary to ascertain 
 whether the evidences of the debt and the securities for its 
 payment, if any were taken, are in his own possession, or 
 
88 THE LAW OF ASSESSMENTS. 
 
 ■whether they are in possession of an agent without the state, 
 under such circumstances as authorized the conclusion that 
 they have become separated or detached from the owner s 
 domicile. 
 
 The difficulty of enforcing a tax assessed against a debt, 
 where a note, bond or other instrument, as evidence of the 
 debt has been executed by the debtor, was anticipated and 
 discussed in the dissenting opinion of Justice Foster in 
 the case of Kirtland v. Hotchkiss (42 Conn. 442). Tlie 
 remedy outlined for enforcing the payment of the tax lie 
 contended would be the same that is in practice in the ser- 
 vice of garnishments in attachment proceedings. A clear 
 distinction is made and recognized between the property 
 in the debt or credit and the title to it. Where the pro- 
 ceeding is in rem, or in the nature of a proceeding in rem, 
 it is sufficient to make service upon the property, or in 
 case of a debt or credit, iipon the debtor. In the case 
 of a garnishment the service upon the debtor arrests tlie 
 title of the creditor. It would seem from these premises 
 to be competent for the legislature to provide, in case 
 of the absence of an agent of the owner, for the taxa- 
 tion of debts and credits, and other intangible personal 
 propertj', consisting of money due or to become due from 
 any person or corporation to a non-resident, and which are 
 taxable within the state by assessing the debt itself or the 
 right and title of such property to the non-resident owner ; 
 and by service of notice of the assessment and the amount 
 of the tax upon the debtor, requiring him to pay the tax 
 and making such payment a credit, to operate as a payment 
 to that extent upon the debt.® The right to tax a mortgage 
 
 ^ Justice Foster supports his po- eys, stocks and credits of such per- 
 
 sition by the citation of two cases, sons, shall be liable to seizure as 
 
 the one, Pelham v. Way, 15 Wall, aforesaid ; and it shall be the duty 
 
 196, the other, the case of Pelhara of the President to seize and use 
 
 V. Kose, 9 Wall. 103. These were them as aforesaid, or the proceeds 
 
 cases or proceedings luider an Act of thereof." 
 
 Congress (July 17th, 1862), provid- In the case of Pelham against 
 
 ing, among other things, for the con- Eose, the information was filed 
 
 fiscation of the property of rebels, against "one promissory note for 
 
 Section 6 of the act is in these words : the sum of ITjOOO, dated March 1st, 
 
 "All the estate and property, mon- 1862, and due four years thereafter, 
 
SITUS. 
 
 as a separate entity from the debt which it secures the pay- 
 ment of, has been asserted in unmistakable language. The 
 
 executed by Lewis Pelham to laim 
 said Henry." The marshal made 
 return that he had, in obedience to 
 the warraut, " arrested the property 
 within mentioned," and liad cited 
 all persons having or pretending to 
 have any right, title, or interest 
 therein," &c. A decree of confisca- 
 tion was entered, and under it the 
 note was sold. Suit was afterwards 
 brought against the marshal and 
 his sureties for a false return — the 
 falsity consisting of the fact that the 
 note was not taken into the mar- 
 shal's custody, but was all the time, 
 between the commencement of the 
 proceedings and the sale under the 
 decree, in possession of the payee 
 in the state of Kentucky. It was 
 held that inasmuch as the proceed- 
 ing was an information against the 
 note, which was a visible thing, ca- 
 pable of physical possession, it was 
 necessary to the validity of the pro- 
 ceedings in the particular case, for 
 the officer to take actual possession; 
 to make physical seizure of the note. 
 The question whether the indebted- 
 ness could be reached, under the 
 proceedings authorized by the act, 
 was not considered. 
 
 In the case of Pelham v. Way, the 
 proceedings had also been against , 
 the material evidence of the debt 
 and not against the debt itself, 
 and the same ruling was made. 
 But in the case of Miller v. United 
 States (11 Wall. 268), the question 
 arose upon a proceeding to confiscate 
 shares of stock in a corporation. 
 The proceeding was commenced by 
 an order from the United States Dis- 
 trict Attorney directed to the United 
 States iinarshal, commanding him 
 to seize certain shares of stocks of 
 certain railroad corporations, de- 
 scribed ; also, " all interest and other 
 
 moneys due upon said stocks, bonds, 
 coupons and dividends belonging to 
 Samuel Miller of the county of Am- 
 herst, in the state of Virginia." 
 The return of the marshal showed 
 that he had "seized said stock by 
 serving a notice of said seizure per- 
 sonally upon M. L. Sykes, Jr., Vice- 
 President of the Michigan Southern 
 and Northern Indiana Railroad Com- 
 pany, and President of the Detroit, 
 Monrbe and Toledo Railroad Com- 
 pany" (the corporations in which 
 the shares of stock seized, belonged). 
 The opinion by Justice Stbong, 
 concurred in by a majority of the 
 court, covered a great many ques- 
 tions; and on the point of service 
 and seizure of the shares the learned 
 judge held that the return showed 
 a good service. After the return- 
 was made by the marshal, an infor- 
 mation was filed to confiscate the 
 property, and it was held that no 
 further service was necessary. It 
 was objected that the act provided 
 no mode of service of notice to the 
 owner of the property, and that a 
 debt, or choses in action, was inca- 
 pable of seizure, and in answer 
 thereto the following language was 
 used : ' ' The Act of Congress of July 
 17th, 1862, made it the duty of the 
 President to cause the seizure of all 
 the estate, property, money, stocks, 
 credits, and effects of the persons 
 described, and in order to secure tlje 
 condemnation and sale of such prop- 
 erty, after its seizure, directed judi- 
 cial proceedings in rem to be insti- 
 tuted. It contemplated that every 
 kind of property mentioned could 
 be seized in some mode. It had in 
 view not only tangible property, but 
 that which is in action. It named 
 stocks and credits, but it gave no 
 directions respecting the mode of 
 
90 
 
 THE LAW OV ASSESSMENTS. 
 
 doctrine is, that the mortgage, whether a conveyance of the 
 land or only a lien upon it, creates an interest which it is 
 
 seizure. It is therefore a fair conclu- 
 sion that the mode was intended to 
 be such as is adapted to the nature 
 of the property directed to be seized, 
 and in use in courts of revenue and 
 admiralty. The modes of seizure 
 must vary. Lands cannot be seized 
 as movable chattels may. Actual 
 manucaption cannot be talten of 
 stocks and credits. But it does not 
 follow from this that they are inca- 
 pable of being seized within the 
 meaning of the Act of Congress. 
 Seizure may be either actual or con- 
 structive. It does not always in- 
 volve talcing into manual possession. 
 . . . An assertion of control, with a 
 present power and intent to exer- 
 cise it is sufficient. . . . Garnish- 
 ment almost everywhere exists. 
 What is that but substantial attach- 
 ment? It arrests the property in 
 the hands of the garnishee, inter- 
 feres with the owner's or creditor's 
 control over it, subjects it to the 
 judgment of the court, and there- 
 fore has the effect of a seizure. In 
 all cases where the garnishee is a 
 debtor, or where the garnishment is 
 of stock, it is effected by serving 
 notice upon the debtor or corpora- 
 tion. A corporation holds its stock 
 as a quasi trustee for its stock- 
 holders. The service of an attach- 
 ment, though it is but a notice, 
 binds the debt or the stock in the 
 hands of the garnishee from the 
 time of the service, and thencefor- 
 ward it is potentially in ' greinio 
 leg is.' The statute declares that 
 proceedings to confiscate shall con- 
 fonn, as nearly as may be, to pro- 
 ceedings in admiralty or revenue 
 cases." 
 
 Justice Field, in a dissenting 
 opinion, concurred in by Justice 
 Clifford, took the position that 
 
 the service of notice upon the offi- 
 cers of corporations was not a suffi- 
 cient seiziure of the shares of stock 
 to authorize the decree of confisca- 
 tion; that "to constitute a valid 
 seizure of property as a basis for a 
 proceeding in rem, the party previ- 
 ously in possession must be dispos- 
 sessed, and unable any longer to 
 exercise dominion over the prop- 
 erty, and such dominion must be 
 transferred to the officer maldng the 
 seizure. Ko other mode would con- 
 serve the principle of notice to the 
 party whose property was to be af- 
 fected, which is essential to the va- 
 lidity of all judicial proceedings. . . . 
 Where these proceedings are against 
 the person, notice is served person- 
 ally or by publication; where they 
 are in rem notice is served upon the 
 thing itself." And he held that the 
 doctrine that notice to the owner is 
 presumed by seizure of the thing, 
 rests upon the presumption that the 
 owners retain possession of the prop- 
 erty themselves, or had placed it in 
 the care or management of persons 
 who will represent them, and com- 
 municate with them ; but that the 
 notice to the president of one com- 
 pany, and to the vice-president of 
 another might, with equal propriety, 
 have been given to a stranger. 
 
 Justice Davis also dissented on 
 the ground that the service in cases 
 of that character could only be made 
 in a manner provided for by statute. 
 The court then consisted of eight 
 judges — five concurred and three dis- 
 sented. It may, therefore, be re- 
 garded as a precedent, at least, for 
 the doctrine that a distinction exists 
 between the material matter .consti- 
 tuting the evidence of a debt, the 
 debt itself and the right and title to 
 the debt. 
 
SITUS. 
 
 91 
 
 ■within the province of the state to tax. The effect of a tax 
 of the mortgage as distinct and separate from the mortgage 
 
 This case (Kirtlaiid v. Hotchkiss) 
 was heard and affirmed in the Su- 
 preme Court of the United States 
 (100 U. S. 491). Justice Hablan, 
 speaking for the court, said it was 
 the duty of the court only to exam- 
 ine whether the Constitution of the 
 United States or any law of Con- 
 gress was violated by the decision of 
 tlie state court, or to put it in the 
 words of the learned judge: "It 
 may, therefore, be regarded as the 
 established doctrine of this court, 
 that so long as the state, by its laws, 
 prescribing the mode and subjects of 
 taxation, does not entrench upon 
 the legitimate authority of the 
 Union, or violate any right recog- 
 nized or secured by the Constitution 
 of the United States, this court, as 
 between the state and its citizen, 
 can afford no relief against state 
 taxation, however unjust, oppressive 
 or onerous. Plainly, therefore, our 
 only duty is to inquire whether the 
 Constitution prohibits a state from 
 taxing, in the hands of one of its 
 resident citizens, a debt held by him 
 upon a resident of another state, 
 and evidenced by the bond of the 
 debtor, secured by deed of trust or 
 mortgage upon real estate sitiiated 
 iu the slate in which the debtor 
 resides. . . . The creditor, it is con- 
 ceded, is a permanent resident within 
 the jurisdiction imposing the tax. 
 The debt is property in his hands 
 constituting a portion of his wealth, 
 from which he is under the highest 
 obligation, in common with his fel- 
 low citizens of the same state, to 
 contribute for the support of the 
 government whose protection he 
 enjoys. That debt, although a spe- 
 cies of intangible property, may, for 
 purposes of taxation, if not for all 
 others, be regarded as situated at 
 
 the domicile of the creditor. It is 
 none the less property because its 
 amount and maturity are set forth 
 In a bond. That bond, wherever 
 actually held or deposited, is only 
 evidence of the debt, and if destroyed, 
 the debt, the right to demand pay- 
 ment of the money loaned, with the 
 stipulated interest, remains. Jfor is 
 the debt for the purposes of taxation 
 affected by the fact that it is secured 
 by mortgage upon real estate situ- 
 ated in Illinois. The mortgage is 
 bvit a security for the debt, and, as 
 held in State Tax on Foreign Bonds 
 (15 Wall. 300), the right of the cred- 
 itor ' to proceed against the property 
 mortgaged, upon a given contin- 
 gency, to enforce by its sale the pay- 
 ment of his demand, . . . has no 
 locality independent of the party in 
 whom it resides. It may undoubt- 
 edly be taxed by the state when held 
 by a resident therein,' &c. Cooley 
 on Taxation, 15, 63, 134, 270. The 
 debt then having its situs at the 
 creditor's residence, both he and it 
 are, for the purposes of taxation, 
 within the jurisdiction of the state. 
 It is consequently for the state to 
 determine, consistently with its own 
 fundamental law, whether such 
 property owned by one of its resi- 
 dents, shall contribute by way of 
 taxation to maintain its government. 
 Its discretion in that regard cannot 
 be supervised or controlled by any 
 department of the Federal govern- 
 ment, for the reason, too obvious to 
 require argument in its support, that 
 such taxation violates no provision 
 of the Federal Constitution." Kirt- 
 land V. Hotchkiss, 100 U. S. Eep. 
 (10 Otto) 493. 
 
 It may therefore be stated as set- 
 tled doctrine that the situs as well 
 as the species and character of prop- 
 
92 THE LAW OF ASSESSMENTS. 
 
 debt, and a sale of the mortgage, not including the mortgage 
 debt is not so easilj'' determined in advance of the decisions 
 of the courts. A learned judge, discussing this point, used 
 the following language: — "But the right to tax the mort- 
 gage may not give the state any direct power over the debt, 
 when the same is actually held without the limits of the 
 state. But indirectly it does. A sale of the mortgage, 
 although it would not carry with it the debt, would sepa- 
 rate them and leave the latter without any security. A 
 purchaser of the mortgaged premises from the mortgagor, 
 who has or may purchase the mortgage when sold for taxes, 
 would thus unite in himself the interest of both mortgagor 
 and mortgagee, and hold the property discharged from the 
 debt."^ But where the distinction has been made, the fact of 
 non-residence of the mortgagee conceded and only the 
 mortgage assessed and the mortgage sold and the owner 
 of the mortgaged premises retains his ownership, except so 
 far as affected by the tax sale of the mortgage, what would 
 be the legal result? The purcliaser of the mortgage would 
 hold the mortgage, separated from the mortgage debt, but 
 without any debt of his own, and unless the statute gave 
 him an interest in the debt secured, or in the land, his own- 
 ership of the mortgage would be of no value. In Oregon the 
 statute undertakes to constitute the mortgage and the security, 
 real property, for the purposes of taxation, and taxable to the 
 owner in the county where the lands lie.'^ In California 
 
 erty within the state as to citizens of and taxation, be deemed and treated 
 the state, where there is no viola- as land or real property." Section 
 tion of the Federal Constitution or 2 . . . "and a mortgage deed Of 
 laws, are subject to the exclusive trust, contract, or other obligation, 
 discretion or control of the state. whereby land or real property sitii- 
 ' Dundee M. T. I. Co. v. School ated in no more than one county in 
 District No. 1, 2 West C. Rep. (Or.) this state, is made security for the 
 241. (21 Fed. Rep. 151). The Ore- . payment of a debt, together with 
 gon statute reads as follows : Section such debt, shall be assessed and 
 1 . . . " and a mortgage deed of trust, taxed to the owner of such security 
 contract, or other obligation whereby and debt in the county, city or dis- 
 land or real property situated in no trict in which the land or real prop- 
 more than one county in this state, erty affected by such security is sit- 
 is made security for the payment of uated. The taxes so assessed and 
 a debt, together with such debt, levied on such security shall be a lien 
 shall, for the purposes of assessment thereon, and the debt, together with 
 
SITUS. 93 
 
 the mortgage, deed of trust, contract or other obligation by 
 which a debt is secured " when land is pledged for the pay- 
 ment and discharge thereof," is created an interest in the 
 land.^ The situs of property for taxable purposes — also 
 the classes and character of property to be taxed, are sub- 
 jects within the exclusive discretion and control of con- 
 stitutional and statutory law, excepting only so far as in 
 conflict with Federal law. 
 
 Sec. 45. That Personal Property Follows Owner — A Legal 
 Fiction — Rules as to Choses in Action. — Continued. — It may be 
 regarded as the settled doctrine that personal property of any 
 kind may have a situs apart from the residence of the owner, 
 and that whenever personalty is so situated apart from the 
 owner as to constitute part of the personal property of 
 another state or district, it may, in general, be assessed for 
 taxable purposes in the state or district where it is actually 
 located, irrespective of the residence of the owner. Whilst 
 this rule is now of almost universal application as to tangi- 
 ble personal property, it is not always so easily enforced as 
 to choses in action. The rule, however, is the same as to 
 
 the security, may be sold for the quasi corporations. In case of 
 payment of any taxes due thereon, in debts so secured, the vahie of the 
 the same manner, and with lilce property affected by such mort- 
 effect that real property or land is gage, deed of trust, contract or obli- 
 sold for the payment of taxes. Ses- gation, less the value of such secu- 
 sion Acts (Oregon), 1882, p. 64r-5. rity, shall be assessed and taxed to 
 ' In California the statutory pro- the owner of the property, and the 
 vision upon the same subject reads value of such security shall be as- 
 as follows (sec. 3617 P. C): "A sessed and taxed to the owner there- 
 mortgage, deed of trust, contract, of, in the county, city or district in 
 or other obligation by which a debt which the property affected thereby 
 , is secured, when land is pledged for is situated. The taxes so levied 
 the payment and discharge thereof, shall be a lien upon the property and 
 shall, for the purpose of assessment security, and may be paid by either 
 and taxation, be deemed and treated party to such security; if paid by 
 as an interest in the land so the owner of the seciu-ity, the tax so 
 pledged (sec. 3627 P. C.) . . . A levied upon the property affected 
 mortgage, deed of trust, contract, thereby, shall become a part of the 
 or other obligation by which a debt debt so secured. If the owner of 
 is secured, shall, for the purposes the property shall pay the tax so 
 of assessment and taxation be levied on such security, it shall con- 
 deemed and treated as an interest stitute a payment thereon, and to 
 in the property affected thereby, the extent of such payment, a fttU 
 except as to railroad and other discharge thereof." 
 
94 
 
 THE LAW OF ASSESSMENTS. 
 
 the jurisdiction over the property when within the limits of 
 the state. A foreign corporation represented by a resident 
 agent, loaning money ; taking notes and mortgages to 
 secure the payment of the loans ; collecting and re-invest- 
 ing the loans ; notwithstanding such notes and mortgages 
 are sent out of the state as soon as taken, is to be regarded 
 as a resident for the purposes of taxation.^ Where a party 
 
 it is situate, over it; or with their 
 
 ' Where a resident of New York, 
 the owner of notes and other obli- 
 gations of debtors who were resi- 
 dents of Vermont, placed them in 
 the hands of an agent residing also 
 in Vermont for collection and in- 
 vestment there, and these notes and 
 obligatious were assessed to his agent 
 in Vermont, and his property seized 
 for non-payment of the tax, it was 
 held that the assessment was valid. 
 In answer to the objection made, 
 that the situs of the notes and obli- 
 gations adhered to the owner at his 
 domicile in New York, the court 
 used the following language after 
 having recognized the general rule 
 as to the situs of personal property: 
 " But this rule is merely a legal fic- 
 tion adopted from considerations of 
 general convenience and policy, for 
 the benefit of commerce, and to en- 
 able persons to dispose of their prop- 
 erty at their decease agreeably to 
 their wishes, without being embar- 
 rassed by their want of knowledge 
 in relation to the laws of the coun- 
 try where the same is situated. But 
 even this doctrine is to be received 
 and understood with this limitation, 
 that there is no positive law of the 
 country where the property is in 
 fact, which contravenes the law of 
 his domicile; for if there is, the law 
 of the owner's domicile must yield 
 to the law of the state. But we do 
 not consider this doctrine in relation 
 to the situs of personal chattels, and 
 relating to its transfer and distribu- 
 tion, as at all conflicting with the 
 actual jurisdiction of the state where 
 
 right to subject it, in common with 
 other property of the state, to share 
 in the burden of government by tax- 
 ation." The court further observed, 
 that this method of taxation was not 
 only well founded in principle and 
 upoh authority, but that it was en- 
 tirely just and equitable: "that if 
 persons residing abroad bring their 
 property and invest it in this state, 
 for the purpose of deriving profit 
 from its use and employment here, 
 and thus avail themselves of the 
 benefits and advantages of our laws 
 for the protection of their property, 
 their property should yield its due 
 proportion towards the support of 
 the government which thus protects 
 it." Catlin v. Hall, 21 Vermont 159. 
 In the case of the Dundee Mort- 
 gage Trust Investment Company v. 
 School District No. 1 (2 W. C. K. 
 241), it appeared that the corpora- 
 tion was organized in Scotland, and 
 had a resident agent in Portland, Or. , 
 loaning money which was secured by 
 notes and mortgages, and these were 
 sent to Scotland as soon as taken. 
 Payment of loans was made to the 
 agent and the money re-loaned. Un- 
 der these facts the court held the 
 corporation to be a resident of the 
 state for the purposes of taxation — 
 "availing itself of the comity of the 
 state it comes here, in the person of 
 its authorized agent, with its money, 
 loans and re-loans it, and is so far, I 
 think, a resident here for the pur- 
 poses of taxation." Per Justice 
 Deadt, Id. 249. 
 
SITUS. 
 
 95 
 
 makes a loan in another county or district, and hypothe- 
 cates solvent debts, consisting of notes and mortgages, or 
 other choses in action, largely in excess and dispropor- 
 tionate in value and amount to the amount of the loan, 
 before the time for making assessments, and when making 
 up his assessment list refuses to put in any of the hypothe- 
 cated securities on the ground that the same are not in the 
 county or district, and are not at the time owned by him, 
 it is within the jurisdiction of the Board of Equalization 
 to determine whether, as a fact, the party is not still the 
 owner of such collaterals, and that the transaction of loan 
 and h3'pothecation were acts done merely to avoid taxation.^ 
 
 2 The Board of Equalization caused 
 notice to be served on Edgar Popple- 
 ton, in accordance with the statute, 
 requiring him to appear on a day 
 named to show cause why certain 
 notes and mortgages specified in the 
 notice should not be assessed to him. 
 On the day specified it appeared be- 
 fore the board that these notes and 
 mortgages amounted to over twelve 
 thousand dollars, and had been as- 
 signed to secure a loan of one thou- 
 sand dollars in an adjoining county. 
 The board decided that the assign- 
 ment did not pass the assessable in- 
 terest of Poppleton, and increased 
 his assessment by that amount. A 
 writ of review was sued out against 
 the Board of Equalization, but in 
 the trial and appellate court the ac- 
 tion of the Board of Equalization 
 was affirmed. In answer to the 
 claim that the title to the notes and 
 mortgage had passed by the assign- 
 ment, the court said: " But they" 
 (Board of Equalization), "found 
 that Poppleton was the owner of 
 the assessable interest in said notes. 
 To have found this they must have 
 found from the evidence that these 
 notes were transferred by Poppleton 
 to avoid the payment of taxes on 
 them to said county, which would 
 have been a fraud on the revenue of 
 
 the county, and void as to the county^ 
 and could not affect the right of the 
 county to have the property taxed." 
 It being objected that there was no 
 evidence to support such a conclu- 
 sion — the facts not having been 
 staled in the findings — ^the court re- 
 plying thereto say: "We think 
 there was some evidence to support 
 such a conclusion. 1. The security 
 was greatly disproportionate to the 
 amount of money borrowed, which 
 may have been taken as a circum- 
 stance by the board. ... 2. The 
 evidence shows that Poppleton con- 
 tinued to loan money in large sums, 
 after the giving of this note of a 
 thousand dollars, and shows that he 
 was in circumstances to pay this 
 note, which shows that it was not 
 necessity which compelled him to 
 deposit this large amount of notes 
 as security for a thousand dollars. 
 This tends to show that so large a 
 deposit was not necessary to secure 
 this loan. 3. The evidence shows 
 that one of the large notes deposited 
 by him as collateral, that is, the note 
 of L. A. Smith et al. for two thou- 
 sandtwo hundred dollars, was taken 
 by him from the bank, and eight 
 hundred dollars collected on It. This 
 is evidence tending to show that he 
 had control of these notes, and from 
 
96 
 
 THE LAW OF ASSESSMENTS. 
 
 Where a party puts money into the hands of others, living 
 in other states or territories, to be loaned for him and again 
 re-invested in loans, when collected, and the money is 
 loaned by others as his agent in other states or territories 
 accordingly, the notes and securities for such loans acquire 
 a sit^is, separate from the domicile of the owner.' But the 
 
 these facts the board may have come 
 to the conclusion that the transfer 
 was not in good faith, and to avoid 
 the payment of taxes on this large 
 amount of property. Poppletou v. 
 Yamhill County, 8 Or. 338. 
 
 ' An assessment was made by the 
 village assessors of Warsaw against 
 a resident of the village for $250,000, 
 being the sum of notes secured by 
 mortgages, loaned and managed by 
 his agents in Illinois, Wisconsin and 
 Minnesota. The notes and mort- 
 gages were taken within the territo- 
 ries of these states and retained 
 there, and when paid reinvested 
 tliere. The assessors were cited to 
 show cause why the assessment 
 should not be vacated. The ques- 
 tion of the situs of a cliose in action 
 was again reviewed at length, and 
 the case of Hoyt v. The Commis- 
 sioners of Taxes (23 N. Y. 224), and 
 other New York cases, which held 
 that choses in action may have a 
 situs for taxable purposes, apart 
 from the residence of the owner, 
 were affirmed, and the assessment 
 was vacated because these notes and 
 securities were not actually within 
 tlie state, and were subject to taxa- 
 tion in the states named. Hoyt v. 
 The Commissioners of Taxes. Supra. 
 
 This question came before the 
 same court in 1882, when this case 
 was cited and approved. The facts 
 showed that the relator was assessed 
 for property consisting of mortgage 
 securities taken by agents of the re- 
 lator who resided in the states of 
 Illinois, Minnesota and Wisconsin, 
 and who retained the custody of the 
 
 securities so taken; and under au- 
 thority from the relator, when pay- 
 ments were made, received the 
 money, satisfied the mortgages and 
 made new loans, except of sueh 
 small sums as the relator had re- 
 mitted to him for his personal ex- 
 penses and uses. By the laws of 
 those states these agents were as- 
 sessable each for the money, notes 
 and mortgages of the relator in his 
 possession and custody. Tlie court 
 in passing upon this question used 
 the following language : "It is un- 
 doubtedly a general rule of law that 
 movable property is deemed to have 
 no situs except that of the domicile 
 of the owner, yet, tlijs being but a 
 legal fiction, it yields, whenever it is 
 necessary for the purpose of justice, 
 that the actual situs of tire thing 
 should be examined, and whenever 
 the legislative intent is manifested 
 that this legal fiction should not ope- 
 rate. The fiction frequently applies 
 as well to the case of tangible per- 
 sonal property, such as merchandise, 
 as to the case of choses in action. 
 But it was directly held in the case 
 of Hoyt V. The Commissioners of 
 Taxes (23 N. Y. 224), that tangible 
 personal property having a situs 
 outside of this state could not, under 
 our statutes, be treated as existing at 
 the domicile of the owner in this 
 state for the purpose of taxation 
 here, and it only remains to be de- 
 termined now whether securities sit- 
 uated like those here in question are 
 to be treated by operation of the 
 fiction referred to, as within this 
 state. I am of opinion that it is 
 
SITUS. 
 
 97 
 
 contrary doctrine applies, wiien the cho^e is not retained 
 within the state where loaned, even though it be secured 
 
 sufficiently clear tliat it was the leg- 
 islative intent that they should not 
 be so treated. That choses in action 
 can have a.' situs away from the domi- 
 cile of the owner foi- the purpose of 
 taxation, and for other purposes, is 
 frequently manifestei in the statutes 
 of this state. In the Revised Stat- 
 utes, as amended by chapter 176 of 
 the laws of 1831, it is provided that 
 every person shall be assessed in the 
 town or ward where he resides when 
 the assessment is made, for all per- 
 sonal estate owned by him, including 
 all personal estate owned, in his pos- 
 session or under his control as agent, 
 etc., and this statute has been con- 
 strued to authorize the assessment 
 of securities held by an agent in this 
 state for a non-resident owner: cit- 
 ing. The People v. Trustees of Og- 
 densburgh, 48 N. Y. 390; Williams 
 V. The Board of Supervisors, 78 Id. 
 561 ; Boardman v. The Board of Su- 
 pervisors, 85 Id. 359" (cited herein 
 n. 1, §44.) "The debts here men- 
 tioned are choses in action, and, ac- 
 cording to the contention of these 
 assessors, could have an existence 
 only at the domicile of the creditor, 
 and whether he lived in this country 
 or in Europe, could make no differ- 
 ence with the legal fiction; and yet, 
 that it was the legislative intent 
 that such debts for the purpose of 
 taxation can have an existence away 
 from the domicile of the owner, can- 
 not be questioned." People ex. rel. 
 Jefferson v. Smith et al., 88 N. Y. 
 578. See also People v. Trustees of 
 Ogdensburgh, above cited. The fol- 
 lowing cases are cited in support of 
 this decision: People v. Gardner, 51 
 Barb. 352; People ex rel. Trowbridge 
 ». Commissioners of Taxes, 4 Hun 
 595; S. C, 62 N. Y. 6-30; Graham v. 
 First Nat. Bank of Norfolk, 84 Id. 
 7 
 
 393, 401; Supervisors of Tazewell 
 County 0. Davenport, 40 111. 197; 
 Catlin B. Hall, 21 Vt. 152; Fisher d. 
 Commissioners of Rush County, 10 
 Kan. 414; Taylor, Adm'r etc. B. St. 
 Louis Co. Court, 47 Mo. 594; Alvany 
 V. Powell, 2 Jones' Eq. (N. C.) 51; 
 Le^vis B. CliesferCo., 60 Pa. St. 325. 
 An assessment was made by the 
 assessor of Fayette County, Iowa, 
 against a resident of Bremer County, 
 Iowa, without his knowledge, for 
 money and credits, in the sum of 
 $9,300; and failing to appear before 
 the Board of Equalization, an at- 
 tempt was made to collect the tax, 
 amounting to $276. An injunction 
 was applied for, and the question 
 presented was, whether the party 
 assessed should have applied to the 
 Board of Equalization to have the 
 tax cancelled, and having failed to 
 do so, whether its collection could 
 be enjoined. The trial court sus- 
 tained a demurrer to the petition, 
 but in the Supreme Court this ruling 
 was leversed, the Court using the 
 following language : "The plaintiff's 
 moneys and credits were assessable 
 and taxable at the place of his resi- 
 dence. An assessment at any other 
 place was illegal and void. It is 
 claimed by counsel for appellees that 
 plaintiff should have appeared be- 
 fore the Board of Equalization and 
 had its erroneous assessment abated. 
 But if that position is correct, a tax- 
 payer would be required to take 
 notice of the assessments made by 
 every assessor in the State, to see 
 tljat he is not improperly assessed. 
 The law imposes upon the taxpayer 
 no such unreasonable requirement. 
 When a tax is levied, without au- 
 thority of law, or under an uncon- 
 stitutional statute, or the like, equity 
 will entertain jurisdiction and enjoin 
 
98 
 
 THE LAW OF ASSESSMENTS. 
 
 by mortgage there. Tlie same debt might be secured by 
 mortgage io as many states and territories as there are in 
 the Union, and if subjected to taxation in each, could in 
 that way, be taxed in the aggregate, more than its par value.* 
 
 the collection of the tax, and the 
 jurisdiction of the Board of Equaliza- 
 tion is not conclusive." (See cases 
 cited.) Barber v. Farr, Sheriff, 6 
 X. W. Kep. 134 (Iowa). 
 
 * The fact that a chose in action, 
 owned, held, and in possession of a 
 non-resident, has been secured by a 
 mortgage on real estate, recorded in 
 the county wherein the land is sitn- 
 ated, does not make it taxable with- 
 in such county or state. " Choses in 
 action are intangible, and have no 
 locality separate from the person 
 possessing the power to enforc? the 
 right. All choses in action follow 
 the person of the owner. No doubt 
 the state may tax such rights when 
 held by its citizens, but if a party 
 lives in another state, this state has 
 no jurisdiction or control over the 
 person of such non-resident and 
 none over the chose in action, be- 
 cause it has no location or tangibil- 
 ity in this state. The same debt 
 might be secured by separate and 
 distinct mortgages in twenty states 
 at the same time. If the recorda- 
 tion thus of a mortgage in this state 
 would fix the situs of the chose in 
 action here, the recordation of other 
 mortgages would fix it in nineteen 
 other states at the same time, and 
 each state would have a right to tax 
 this same chose in action within its 
 own borders, thus levying twenty 
 annual taxes on the same property 
 within the same year, which would 
 be a manifest absurdity." State v. 
 Earl, 1 Nev. 398. 
 
 The owner and holder of a debt 
 secured by mortgage resided in San 
 Francisco County. The land in- 
 cluded in the mortgage was located 
 
 in Mariposa County, where the 
 mortgage was recoi'ded. The mort- 
 gagee foreclosed the mortgage in 
 Mariposa County, obtained a judg- 
 ment for the debt, and an order for 
 the sale of the mortgaged premises. 
 Choses in action were made assess- 
 able for taxation. The question 
 raised was, the situs of this judg- 
 ment for taxation — whether in the 
 county where the judgment was of 
 record or in the city and county of 
 San Francisco where the judgment 
 creditor resided : and the latter was 
 held to be the domicile of the owner. 
 " The mortgage has no existence in- 
 dependent of the thing secured by it, 
 a payment of the debt discharges the 
 mortgage. The thing secured is in- 
 tangible, and has no situs distinct 
 and apart from the residence of the 
 holder. It pertains to and follows 
 the person. The same debt may, at 
 the same time, be secured by a 
 mortgage upon land in every county 
 in the state ; and if the mere fact 
 that a mortgage exists in a particu- 
 lar county, gives the property in the 
 mortgage a situs, subjecting it to 
 taxation in that county, a party 
 without further legislation, might 
 be called upon to pay the tax sev- 
 eral times, for the lien for taxes at- 
 taches at the same time, in every 
 county in the state, and the mortr 
 gage in one county may he a differ- 
 ent one from that in anothei-, 
 although the debt secured is the 
 same. People ». Eastman, 25 Cal., 
 308. 
 
 In Illinois " credits " are assessed 
 for taxation. The "credit" is to 
 be listed by the owner, with his 
 other property, or if controlled by 
 
SITUS. 
 
 99 
 
 A deposit in a bank, being a "credit," takes the situs, not 
 of the bank, but of the depositor. The personal property 
 and assets of the estate of a deceased person, are taxable 
 at the domicile of the deceased at the time of his death,* 
 and not at the domicile of the executor or administrator. 
 The exceptions to this rule are statutory.^ The personal 
 estate of infants are taxable at their own and not at the 
 domicile of their guardian.® In the absence of exceptional 
 cases the general rule obtains that choses in action are 
 assessable and taxable only at the domicile of the owner, 
 and an assessment elsewhere is void. An assessment to 
 the owner elsewhere is treated as made without jurisdic- 
 
 an agent, then by the agent. "If 
 the owner be resident in the state 
 there is jurisdiction over his person 
 and over his credits also, which in 
 legal contemplation, in the absence 
 of anything showing they have a 
 situs elsewhere, accompany him. 
 If the owner is absent, but the 
 credits are in fact here, in tlie 
 hands of an agent for renewal or 
 collection, with a view of re-loaning 
 tlie money as a permanent business, 
 they have a situs here for the pur- 
 pose of taxation, and there is juris- 
 diction over the, thing." Goldgart 
 V. The People, 106 111. 28. 
 
 Where money is deposited with a 
 bank, it becomes in legal effect a debt 
 payable by the bank to the depositor, 
 and when choses in action are tax- 
 able, should be assessed to the de- 
 positor at his domicile ; and when 
 the depositor has died, and letters 
 of administration have been issued, 
 the situs of the debt is, during the 
 pendency of the administration, the 
 domicile of the deceased at the time 
 of his death, and not the domicile 
 of the executor or administrator. 
 And where the executor or adminis- 
 trator, during the settlement of the 
 estate, deposits money of the estate, 
 the same rule obtains — the situs for 
 
 assessment purposes would be the 
 domicile of deceased at the time of 
 his death, and not the place of de- 
 posit of the money. " If the testa- 
 tor were living and the moneys had 
 been deposited by him, the amount 
 of the debts due by the banks to him 
 would be taxable in San Mateo, the 
 county of his residence. The situs 
 of the property, for taxation pur- 
 poses, does not change upon the 
 death of the owner." City and 
 County of San Francisco v. Lux, 
 1 West C. E. 5.57; see also McDougal' 
 V. Brazil, 83 Ind. 211. 
 
 The profits or pay arising from an 
 office or the practice of a profession, 
 trade or occupation, are taxable at 
 the place of residence or domicile of 
 the party subject to such taxation, 
 irrespective of the fact that a por- 
 tion, or the greater portion of such 
 office, profession, trade, or occupa- 
 tion Is carried on outside of the tax- 
 ing district. Commissioners v. Dob- 
 bins, 7 Watts 514. 
 
 5 In Tennessee, the assessment is 
 to be made at the domicile of the 
 executor or administrator, and not 
 at the domicile of the deceased. Gal- 
 latin V. Alexander, 10 La. (Teun.) 
 475. 
 
 « Louisville v. Sherly, 80 Zy. 71. 
 
100 
 
 THE LAW OF ASSESSMENTS. 
 
 tion, and the party assessed may resist the collection of 
 the tax without having applied to the Board of Equaliza- 
 tion to have the tax abated or cancelled. 
 
 Sec. 46. Taxation an inaependent sovereign right— Taxa- 
 ble property not relieved by prior taxation.— Each state and 
 sovereignty has the right to tax all the property within its 
 jurisdiction without regard to the question whether the 
 same property has been taxed, or is subject to taxation in 
 another state within the same year.^ This right, however, 
 as between the several states, must be understood not to 
 include such property as comes within the class treated of 
 in a former section (41). But a chose in action, made 
 payable in a particular place within a state, and owned and 
 held by a non-resident, is not taxable within the state where 
 made payable. In other words it is not within the province 
 of a state to impose a tax upon property of any kind not 
 within its territorial and jurisdictional limits.^ And where 
 
 'In a case in Indiana, involving 
 this question, the court said, "Where 
 property is taxable by the laws of 
 this state, it is immaterial how much 
 it is taxed elsewhere. In the ab- 
 sence of any statute to the contrary, 
 although a corporation may be tax- 
 able for its corporate property, the 
 owners of shares of its stock may 
 be taxed therefor where they reside. 
 The owner of shares of stock in a 
 foreign corporation is liable to taxa- 
 tion thereon, in the state where he 
 resides, although a tax has been 
 paid thereon in the state where the 
 corporation is located. Seward v. 
 Rising Sun, 79 Ind. 353. 
 
 2 The State of Pennsylvania, by 
 certain legislation, taxed "money 
 owing by solvent debtors, whether 
 by promissory note, penal or single 
 bill, bond or judgment," imposing 
 three mills on the dollar of the prin- 
 cipal, payable out of the interest. 
 Where the money was due by a rail- 
 road corporation, they made it the 
 duty of the president, or other offi- 
 cer of the company who paid the 
 
 coupons or interest to the holder, to 
 retain the amoimt of the tax. A 
 railw'ay corporation issued its bonds 
 to whicli were attached coupons for 
 semi-a)mual payments of interest 
 one of which, held by a resident of 
 Ireland, read in the following lan- 
 guage : 
 
 "The Northern .Central Railway 
 Company will pay to the bearer, 
 January 1, 1865, thirty dollars, being 
 a half year's interest on bond No. 
 1827, for one thousand dollars. J. 
 S. Lieb, Treasurer." 
 
 The holder of this coupon de- 
 manded payment at the 'company's 
 office in Baltimore, where the cou- 
 pons were payable, and the com- 
 pany offered payment after deduct- 
 ing 5 per centum per annum for the 
 United States under the U. S. Inter- 
 nal Revenue laws as required by 
 section 49 of the Act of Congress 
 passed August 5th, 1861, and the 
 90th section of the Act of Congress 
 passed July 1st, 1862, and after de- 
 duction of three mills under the act 
 of Pennsylvania referred to, payment 
 
SITUS. 
 
 101 
 
 property is partly in one state and partly in another, tlie 
 power of taxation is limited to tlie portion within the state.^ 
 
 ■with these deductions was refused 
 and suit brought in the courts of the 
 U. S. to recover the entire sum. The 
 property of the railway company 
 which issued this bond, by a consoli- 
 dation of roadways, extended from 
 Baltimore, Maryland, to Sunbury, 
 Pennsylvania. The court in which 
 tlie action was brought gave judg- 
 ment for the plaintiff and the rail- 
 way carried an appeal to the Su- 
 preme Court of the United States. 
 This court held this to be a tax, not 
 on the money lent, but on the bond 
 which was owned and held by a 
 non-resident, and in passing upon 
 the authority of Pennsylvania to 
 tax the bond in the hands of h. non- 
 resident held the following lan- 
 guage : — "Now, it is apparent, if 
 the State of Pennsylvania, is at lib- 
 berty to tax these bonds, that, to 
 the extent of this Maryland portion 
 of the road, she is taxing property 
 and interest beyond her jurisdiction. 
 This portion avails her tax roll as 
 effectually as if it was situate with- 
 in her own limits. The Maryland 
 portion is not liable for the payment 
 of any specified part or quantity of 
 these bonds thus taxed , but is liable, 
 with all its interests, for the whole 
 amount the same as that portion of 
 the road within the State of Penn- 
 sylvania. The bonds were an issue 
 in the usual way by this Northern 
 Central Railway Company, and the 
 security given by mortgage on the 
 entire line of the whole road. No 
 portion of the bonds belong to one 
 part more than to another. No sev- 
 erance was made of the bonds and 
 therefore none can be made, in the 
 taxation, with reference to the line 
 within the respective jurisdictions 
 of the states. If the tax is per- 
 mitted as it respects one bond it 
 
 must be as respects all. Again, if 
 Pennsylvania can tax these bonds, 
 upon the same principle Maryland 
 can tax them. . . . The conse- 
 quence of this tax of three mills 
 on the dollar, if permitted, would 
 he double taxation of the bond- 
 holder. Each state could tax the 
 entire issue of bonds, amounting as 
 we have seen to $2,500,000." Eail- 
 road Company v. Jackson, 1 Wall. 
 267. 
 
 'The doctrine stated in the text, 
 was announced in a case involving 
 the construction of a statute of Penn- 
 sylvania, which was in the foUovring 
 words : 
 
 " The president, treasurer or cash- 
 ier of every company, except banks 
 or savings institutions, incorporated 
 under the laws of this commonwealth 
 doing business in this state, which 
 pays interest to its bondholders or 
 other creditors, shall before payment 
 of the same, retain from said bond- 
 holders or creditors a tax of five per 
 centum upon every dollar of interest 
 paid as aforesaid : and shall pay over 
 the same semi-annually, on the first 
 days of July and January in each 
 and every year, to the state treasurer 
 for the use of the commonwealth; 
 and every president, treasurer or 
 cashier as aforesaid shall annually, 
 on the 31st day of each December, 
 or within thirty days thereafter, re- 
 port to the auditor-general under 
 oath or affirmation, stating the en- 
 tire amount of interest paid by said 
 corporation to said creditors during 
 the year ending on that day ; and 
 thereupon the auditor-general and 
 state treasurer shall proceed to settle 
 an account with said corporation as 
 other accounts are now settled by 
 law." 
 A railroad corporation, authotized 
 
102 
 
 THE LAW OF ASSESSMENTS. 
 
 A statute providing for a tax on all "money •owing by sol- 
 vent debtors, whether by promissory note, penal or single 
 bond or judgment, of three mills on the dollar of the prin- 
 cipal " — and made payable out of the interest by the debtor, 
 even though made payable within the state, cannot operate 
 upon a chose in action owned and held by a non-resident.^ 
 
 by an act of the legislature of Penn- 
 sylvania, to construct a railway to 
 the Ohio state line, after having con- 
 structed the same purchased a line 
 of railway connecting therewith, and 
 extending into the State of Ohio — 
 the entire forming a continuous line 
 from Cleveland, Ohio, to Erie, Penn- 
 sylvania — being 9o-J miles in length, 
 and 25^ miles in Pennsylvania, — the 
 balance in Ohio. The corporation 
 in consolidation of its indebtedness 
 executed a mortgage upon this rail- 
 road and its rolling stock, for the sum 
 of $2,500,000, wliich sum was repre- 
 sented by bonds with coupons at- 
 tached to represent the interest at the 
 rate of 7 per cent, per annum payable 
 semi-annually — part of which were 
 payable in Philadelphia and part in 
 the city of New York. The state 
 officers "settled an account" against 
 the railroad company for $2,-336.50 
 for the tax on the interest which the 
 corporation had paid on this mort- 
 gage. This sum was the result of 
 an apportionment made upon the 
 interest on the mortgage debt, being 
 a pro rata, based upon the number 
 of miles of road witliin the State of 
 Pennsylvania; but this was done 
 without statutory authority. These 
 bonds were owned and held, largely, 
 by non-residents of the State of 
 Pennsylvania. The corporation hav- 
 ing refused to pay this tax, the ques- 
 tion of its validity came before the 
 Supreme Court of the United States, 
 and it was there held that so far as 
 the tax was assessed and levied upon 
 these mortgage bonds which were in 
 the hands and possession of non-res- 
 
 idents it was invalid. Justice Field, 
 in rendering the decision of the court 
 used the following language : " The 
 power of taxation, however vast in 
 its character and searching in its ex- 
 tent, is necessarily limited to subjects 
 witliin the jurisdiction of the state. 
 These subjects are persons, property 
 and business. . . . Corporations may 
 be taxed, like natural persons, upon 
 their propeity and business. But 
 debts owing by corporations, like 
 debts owing by individuals, are not 
 property of the debtors in any sense : 
 tliey are obligations of. the debtors 
 and only possess value in the liands 
 of the creditors. With them tliey 
 are property, and in their hands, 
 they may be taxed. To call debts 
 property of the debtors is simply to 
 misuse terms. All the property there 
 can be in the nature of things in 
 debts of corporations, belongs to the 
 creditors, to whom they are payable 
 and follows their domicile, wherever 
 that may be. These debts can have 
 no locality separate from the party 
 to whom they are due. This princi- 
 ple might be stated in many different 
 ways, and supported by citations 
 from numerous adjudications, but 
 no number of authorities, and no 
 forms of expression could add any- 
 thing to its obvious truth, which is 
 recognized by its simple statement. 
 The bonds issued by the railroad 
 company in this case are undoubt- 
 edly property, but property in the 
 hands of the holders, not property 
 of the obligors. So far as they are 
 held by non-residents of the state, 
 they are property beyond the juris- 
 
SITTTS. 
 
 103 
 
 It is the residence or domicile of the creditor and not of the 
 debtor that determines the situs of a debt or chose in action 
 
 diction of the state.'' State Tax on 
 Foreign Bonds, 15 Wall. 300-319, 320. 
 In the same opinion, the court 
 proceeds to criticise the case of 
 Maltby v. The Reading & Colum- 
 bia 11. R. Co. (2 P. P. Smith 140), 
 and while conceding some of the 
 premises of that case to be sound 
 law — such as— "There must be 
 jurisdiction over either the prop- 
 erty or the person of the owner, 
 else the power " (of taxation) "can- 
 not be exercised; but when the 
 property is within our jurisdiction, 
 and enjoys the protection of our 
 state government, it is justly taxa- 
 ble, and it is of no moment that the 
 owner who is required to pay the 
 tax, resides elsewhere" — but when 
 the Pennsylvania court held that a 
 bond issued by the corporation and 
 its payment secured by mortgage 
 therein, was subject to taxation in 
 Pennsylvania while owned and held 
 by a non-resident — the doctrine was 
 overruled in the following language: 
 "It is undoubtedly true that the 
 actual situs of personal property 
 which has a visible and tangible 
 existence, and not the domicile of 
 its owner, will in many cases, deter- 
 mine -the state in which it may be 
 taxed. The same thing is true of 
 public securities, consisting of state 
 bonds and bonds of municipal bodies, 
 and circulating notes of banking in- 
 stitutions; the former by general 
 usage, having acquired the character 
 of, and are treated as, property in 
 the place where they are found, 
 though removed from the domicile 
 of the owner; the latter are treated 
 and pass as money wherever they 
 are. But other personal property, 
 consisting of bonds, mortgages and 
 debts generally, has no situs, inde- 
 pendent of the domicile of the 
 
 owner, and certainly can have none 
 where the instruments, as in the 
 present case, constituting the evi- 
 dences of debt, are not separated 
 from the possession of the owners." 
 Id. 323-4. 
 
 It was conceded in Justice Field's 
 opinion that these bonds might have 
 been taxed by the State of Pennsyl- 
 vania if the right to impose the tax 
 had been incorporated into the com- 
 pany's charter. The language of the 
 opinion on this point is as follows : 
 " The legality of a tax of that kind 
 would not be questioned if in the 
 charter of the company the imposi- 
 tion of the tax were authorized, and 
 in the bonds of the company or its 
 certificates of loan, the liability of 
 the loan to taxation were stated. 
 The tax in that case would be in the 
 nature of a license tax for nego- 
 tiating the loan, for, in whatever 
 manner made payable, it would ulti- 
 mately fall on the company as .a 
 condition of effecting the loan, and 
 parties contracting with the com- 
 pany would provide for it by proper 
 stipulations. But there is nothing 
 in the observations of the court, nor 
 is there anything in the opinion 
 which shows that the bond of the 
 non-resident was property in the 
 state, or that the non-resident had 
 any property in the state which was 
 subject to taxation within the prin- 
 ciples laid down by the court itself, 
 which we have cited." Id. 322. 
 
 In this case the statute of Penn- 
 sylvania was passed subsequent to 
 the making and issuing of the bonds 
 sought to be taxed; and in respect 
 to the retrospective feature of this 
 statute the opinion employs the fol- 
 lowing language: "The tax laws 
 of Pennsylvania can have no extra- 
 territorial operation; nor can any 
 
104 
 
 THE LAW OF ASSESSMENTS. 
 
 ior the purposes of taxation. The rule in all sovereignties 
 is to tax all property within its jurisdictional limits without 
 regard to the question, whether the same property has been 
 taxed or is subject to be, in another sovereignty within the 
 same year. This rule applies to all taxable personal prop- 
 erty, whether owned by a resident or a non-resident; 
 whether tangible or intangible. It includes choses in action 
 when subject to taxation. When shares of stock are not 
 taxable under the revenue laws of the state and choses iu 
 action, except as stated, are taxable, the shares of a foreign 
 corporation, owned and held by a resident, notwithstanding 
 the fact that such shares are taxed in the state where the 
 corporation exists, are taxable to the resident owner. It 
 is no objection to the taxation in such a case that it will 
 constitute double taxation.* 
 
 law of that state inconsistent witli 
 tUe terms of a contract, made witli 
 or payable to parties out of the 
 state, have any effect upon the con- 
 tract whilst it is in the hands of 
 such parties or other non-residents. 
 Tlie extra-territorial invalidity of 
 state laws discharging a debtor from 
 his contracts with citizens of other 
 states, even though made and paya- 
 ble in the state after the passage of 
 such laws, has been judicially deter- 
 mined by this court. (Ogden v. 
 Saimders, 12 Wheat. 214 ;' Baldwin 
 V. Hall, 1 Wall. 223.) A like in- 
 validity must, on similar grounds, 
 attend state legislation which seeks 
 to change the obligation of such 
 contracts in any particular and on 
 stronger grounds where the contracts 
 are made and payable out of the 
 state." Id. 32!5-6. 
 
 Justices Davis, Clifford, Mil- 
 ler and Hunt dissented so that it 
 stands as a bare majority opinion. 
 In the dissenting opinion the posi- 
 tion is taken that the case of Maltby 
 o. Heading & Columbia Railroad C:o. 
 expounds the laws of Pennsylvania 
 on the subject matter; and no prin- 
 
 ciple of the Federal Constitution 
 being violated, the state had the 
 right to construe its own local laws. 
 Id. 327. 
 
 * Where an assessment was made 
 on forty shares of the stock of a 
 corporation of Massachusetts by an 
 assessor of Rhode Island, and the 
 objection to the assessment was that 
 the shares were part of the capital 
 stock of the corporation and were 
 taxed at their fair cash value where 
 the corporation was located, and the 
 tax thereon paid, the court held that 
 the plea stated no defease to the 
 enforcement of the tax. " The de- 
 claration describes the defendant as 
 of 'Tiverton,' and for any thing that 
 appears in the plea, he was a citizen 
 or inhabitant of the state, having 
 his domicile in that town. The 
 question therefore which is pre- 
 sented by the pleading is, whether a 
 citizen or Inhabitant of the state is 
 liable to pay a tax assessed against 
 him in the town of his domicile 
 upon shares of stock which he owns 
 in a manufacturing corporation of 
 another state, he having been taxed 
 and paid the tax on the same shares 
 
SITUS. 
 
 105 
 
 Sec. 47. Personal property of corporations — Situs of. — Cor- 
 porations, like natural persons, are assessable for their per- 
 
 in another state. The question 
 arises under chapters 38 and 39 of 
 the General Statutes. The first sec- 
 tion of chapter 38 declares that ' all 
 real property in the state, and all 
 personal property belonging to the 
 inhabitants thereof, shall be liable 
 to taxation unless otherwise specially 
 provided.' Section 10 of chapter 
 39 declares that 'personal property 
 for the purpose of taxation, shall be 
 deemed to include all goods, chat- 
 tels, debts due from solvent persons, 
 moneys and effects, wherever they 
 may be; all ships or vessels at home 
 or abroad; all public stocks and 
 securities, except those issued by the 
 government of the United States; 
 all stocks or shares in any bank or 
 banking association ; in any turn- 
 pike, bridge, or other corporation 
 within or without the state, except 
 such as are exempted from taxation 
 by the laws of the state.' The 
 language is plain. It clearly makes 
 the shares of any corporation, 
 whether manufacturing or other, 
 whether without or within the state, 
 liable to taxation if the owner is an 
 inhabitant of the state, unless suclx 
 shares are exempted from taxation 
 by the laws of the state. At the 
 time the tax now sued for was as- 
 sessed, shares in the stock of a, 
 manufacturing corporation of an- 
 other state were not exempted from 
 taxation by the laws of this state." 
 Dyer v. Osborne (11 E. I. 321) 23 
 Amer. Kep. 461. (See this case 
 further considered and cases cited 
 atn. 3, §132.) 
 
 No deductions allowed to shares 
 in foreign corporations. The same 
 ruling was made in Massachusetts 
 as to the taxable character of shares 
 in a foreign corporation ; and it was 
 also held that, notwithstanding the 
 law provided for deducting from the 
 
 cash value of the stock of corpora- 
 tions organized within the state, the 
 value of its real and personal pro- 
 perty within the state, yet as the 
 statute made no provision for such 
 deduction in the assessment of shares 
 of a foreign corporation, the same 
 could not be allowed to the last- 
 named shares. The language of the 
 court is as follows: "The provis- 
 ion" (for deductions) "can only be 
 applicable to manufacturing corpor- 
 ations established within this Com- 
 monwealth, as it is only in relation 
 to such corporations that our legis- 
 lature could so require. As to them, 
 having provided for taxation of a 
 certain part of the capital in the 
 towns in which they were situated, 
 the statute requires a deduction of a 
 like amount from the value of the 
 shares in order to avoid double taxa- 
 tion in this Commonwealth of pro- 
 perty wholly taxable here. But our 
 whole system of taxation, as estab- 
 lished and practised, is to disregard 
 the liability of shares in foreign 
 corporations to taxation in the states 
 where they were situated. Thus, 
 shares in foreign railroad corpora- 
 tions, held by citizens of this state 
 are fully taxed here, and no deduc- 
 tion is made for any taxation to 
 which the corporations are subject 
 in the states where they are situated. 
 So it is in regard to shares held by 
 our citizens in hank, insurance com- 
 panies and other moneyed corpora- 
 tions situated in other states. Such 
 shares when held by our citizens are 
 here treated as so much personal 
 estate, following the person of the 
 owner and taxable at their full value 
 in this Commonwealth, regardless 
 of what may be the foreign law as 
 to taxation of the capital or any 
 part of it elsewhere." Dwight v. 
 Mayor etc. of Boston, 12 Allen 322. 
 
106 
 
 THE LAW OF ASSESSMENTS. 
 
 sonal property at their legal residence.* A corporation, 
 being an artificial person, is included for taxable purposes 
 where the word "person" or "inhabitant" is used.' The 
 residence or domicile of a corporation has been defined to 
 be " where the governing power of the corporation is exer- 
 cised; where those meet in council who have a right to 
 control its affairs and prescribe what policy of the corpora- 
 tion shall be pursued, and not where the labor is performed 
 in executing the requirements of the corporation in trans- 
 acting its business.^ In order to determine the legal resi- 
 
 (a) " If the property belongs to a 
 corporation and does not compose a 
 part of its capital stock, it is liable 
 to be taxed where the corporation 
 has its place of business." Port- 
 land S. & P. E. Co. V. City of Saco, 
 60 Me. 200. 
 
 The situs for taxation of personal 
 property may be where the office of 
 the secretary is kept. State v. Per- 
 son, 3 Vroom (K. J.), 134. 
 
 1 " There can be no doubt that the 
 term, inhabitant, includes a corpo- 
 ration occupying an office or build- 
 ing in a town, ward or village in 
 conducting the business of their 
 corporation, for many purposes, and 
 especially with reference to the bur- 
 dens of taxation for public purposes. 
 By the 22 Henry VIII., ch. 5, it was 
 provided, in case of bridges broken 
 in any town, &c., that they should 
 be made by the inhabitants of the 
 county, &c. ; under this clause it has 
 been held by all the courts in Eng- 
 land, that every corporation or body 
 politic, residing in any town, &c., 
 or having lands therein which they 
 occupy are inhabitants within the 
 purview of the statute. . . . Ch. J. 
 Thompsoit in the People v. Utica 
 Ins. Co., 15 Johns. K. 382, upon the 
 authority of the cases which in- 
 cluded corporations within the term 
 inhabitants, came to the conclusion 
 that the word person, in the act re- 
 straining private banking, included 
 
 corporations in the prohibition ; and 
 he reports a case, decided by this 
 court, in which the Clinton Woolen 
 and Cotton Manufacturing Com- 
 pany, under the act of 1813, for the 
 assessment and collection of taxes, 
 were held liable to be taxed for their 
 property, though persons was the 
 only term used, and in which they 
 must be included, if at all. We 
 may, from the above cases upon 
 authority, determine that the plain- 
 tiffs are fairly included within the 
 term inhabitants, used in the act." 
 Ontario Bank v. Bunnell, 10 Weiid. 
 193. ; Bank of Augusta v. Augusta, 
 46 Me. 261. 
 
 ''Middletown Ferry Co. v. Town 
 of Middletown, 40 Conn. 70. In 
 this case the facts were, that the 
 corporation was organized under its 
 charter for the purpose of trans- 
 porting passengers across the Con- 
 necticut river between the towns of 
 Middletown and Portland. All the 
 corporators were residents of Mid- 
 dletown. Until the year 1869 the 
 corporation had its office and was 
 located and transacted its corporate 
 business in Middletown, and its per- 
 sonal property was there assessed; 
 and until about that time a majority 
 of its directors resided there, and 
 the largest portion of its stock was 
 owned and held by citizens of that 
 town, and its taxes were paid there; 
 but since the year 1868 four fifths of 
 
SITUS. 
 
 107 
 
 dence of a corporation, reference must be had to the place 
 where its will is declared and made known; not to the 
 place where its mandates are obeyed, or the business or 
 labor is transacted^ or performed which it authorizes or 
 requires. It will be seen that this too is a question of fact 
 to be determined by the assessor, as in the cases of natural 
 persons. Where the corporation is organized under general 
 statutes, the certificate of incorporation usually designates 
 the place of its principal office, apd when this is done. 
 
 its stock had been owned in the town 
 of Portland — a majority of its direc- 
 tors had resided there, and by a 
 vote passed tliat year, the corpora- 
 tion changed its location and place 
 of business and the exercise of its 
 corporate powers, from Middletown 
 to Portland ; and since then its regu- 
 lar and special meetings were held 
 in Portland. The corporation run 
 its ferry boats across the river be- 
 tween the two towns — the botmdary 
 line separating th6 towns being the 
 shore on the Portland side — so that 
 the ferry boats of the company 
 were always within the corporate 
 limits of Middletown, and all the 
 ordinary business of the corporation, 
 limning the boats, supplying and 
 repairing them and collecting tolls, 
 was transacted in Middletown. At 
 night the ferry boats were laid up 
 on the Middletown side, and tlie 
 employees of the company, engaged 
 in conducting the business and per- 
 forming the labor of the company 
 resided in Middletown. The cap- 
 tain of the boat was also secretary 
 of the company, and for conveni- 
 ence kept the business books for 
 daily use on the boat and at his 
 house in Middletown. The spare 
 boats of the company when not in 
 use, were always moored on the Mid- 
 dletown side, and the boats were 
 registered as of Middletown. After 
 the change, by vote of the company 
 of its location from Middletowu to 
 
 Portland, the town of Middletown 
 continued to assess the company for 
 taxation as formerly, and after the 
 assessments for 1869, 1870 and 1871 
 were made, the company paid the 
 taxes under protest, and brought 
 suit to recover back the money. 
 The company offered a tax-list to 
 the assessor of Portland in 1869, 
 but after learning that the same 
 property was assessed for taxation 
 in Middletown, it refused to pay 
 tax on this list to the town of Port- 
 land, and for these years, 1869, 1870 
 and 1871, paid no taxes to Portland 
 on their property assessed by the 
 town of Middletown. The statute 
 of Connecticut expressly provided 
 that the personal property of corpo- 
 rations should be assessed and set 
 in the lists of the towns in which 
 the corporations had their principal 
 place of business, or exercised their 
 corporate powers. The court found 
 that the principal place of business 
 of the corporation was at Portland, 
 and this finding was sustained. The 
 court, after deciding the question of 
 location of the corporation, proceed 
 to say they did not consider " what 
 would be the effect if a corporation 
 should change its principal place of 
 business in order to avoid a rate of 
 taxation in the town from which 
 the removal is made, higher than it 
 would be subject to in the town to 
 which it has removed its principal 
 place of business." 
 
108 THE LAW OF ASSESSMENTS. 
 
 whether in such certificate or in the act of incorporation, 
 the place so designated is deemed the legal residence of the 
 corporation for taxable purposes.^ The place of taxation of 
 corporations is not controlled by the residence of its stock- 
 holders, directors, officers or eraploj-ees ; their residences 
 may be considered, only as evidence tending to establish 
 the place of residence of the corporation, when the question 
 must be determined by facts and circumstances.* It has 
 already been stated that a foreign corporation may acquire 
 a domicile for taxable purposes in a state where it is allowed 
 to and does carry on business and owns propertj.^ In such 
 cases, the question of the domicile of the corporation, for 
 taxable purposes, must be determined by the assessor, as in 
 the case of non-resident owners of property similarly situ- 
 ated. In some instances the general provisions of the 
 statute requiring personal property belonging to non-resi- 
 dent owners, while in the possession and control of agents, 
 to be listed at the domicile of such agents, would apply.^ 
 
 A foreign corporation, as already shown, may carry on 
 business by an agent in another state, and own and control 
 property therein. The agent managing and controlling the 
 business and property may reside and be domiciled outside 
 of the state. In such case, the taxable property of the cor- 
 poration would be assessable at the principal office and place 
 of business of the corporation and not at the domicile of an 
 employee, nor where its property or any portion of it should 
 be placed or used in conducting the business, subject to the 
 same rules, as to such property as shall have acquired, a 
 separate location, apart from the domicile of the owner, as 
 in the case of natural persons. 
 
 Sec. 48. Personal property of corporations — Situs of, "where 
 certificate of incorporation fixes the place of business. — In some 
 
 8 Pelton V. jSTorthern Transporta- legal sense, are the individual mem- 
 
 tion Co., 37 Ohio St. 450. bers the owners." Queen r. Arnoud , 
 
 * " The Individual members of the 9 Adol. & El. N. S. 806. 
 
 corporation are, no doubt interested, ^ Dundee Mortg. Trust Investment 
 
 in one sense, in the property of the Co. v. School District No. 1, -2 W. 
 
 corporation, as they derive indi- C. R. 241. (Or.) 
 
 vidual benefits from its increase and * City of Dubuque v. The Illinois 
 
 loss from its decrease, but in no Cent. K. Co., 39 Iowa 83-85. 
 
SITUS. 
 
 109 
 
 states corporations are formed by the execution and filing 
 of a certificate by three or more persons. In snch cases one 
 of the requirements of the certificate is that the principal 
 office or place of business of the corporation is to be stated 
 in the certificate. When this is done, or when the same thing 
 is done by the incorporating act, the place so fixed or stated 
 becomes the residence of the corporation for taxable pur- 
 poses. A corporation, whose place of business or principal 
 ofBce and place of business has been so designated, cannot 
 afterwards, by investing in property and conducting its 
 operations or business in another district, change its prin- 
 cipal ofSce or legal residence for taxable purposes. Such 
 change can only be made under authority of a statute.'^ 
 
 ' The statute of Kew York re- 
 quired the certificate of incorpora- 
 tion to state " the names of the 
 town and county in which the ope- 
 rations of the corporation are to be 
 carried on." The certificate of the 
 Oswego Starch Factory named the 
 city of Oswego in the county of Os- 
 wego as the place where its opera- 
 tions were to be carried on, and the 
 facts were, that the corporation pur- 
 chased lands In the city of Oswego 
 and erected buildings thereon, with 
 machinery and fixtures, at an ex- 
 pense of $300,000, and employed 
 there about 300 persons, using an- 
 nually from two to three hundred 
 thousand bushels of corn in the 
 manufacture of starch; that four 
 out of five of the trustees of the 
 company resided at. Auburn in Cay- 
 uga County: that the president, sec- 
 i-etary and treasurer of the company 
 resided at Auburn, and kept an 
 office there for which the company 
 paid rent; that the meetings of the 
 board of trustees were held at Au- 
 burn; that the agent at Oswego 
 made returns twice a week of the 
 sales at Oswego; the funds of the 
 company were disbursed at Auburn; 
 these and other facts existed, tend- 
 ing to show that Auburn was the 
 
 seat of the financial transactions of 
 the company. Under this state of 
 facts, in 1857 the Assessors of the 
 city of Oswego assessed the corpo- 
 ration's personal property by fixing 
 the value of its real estate at $160,000, 
 and deducting this amount from the 
 nominal par value of its capital stock, 
 $450,000, leaving $290,000, which they 
 assessed at 75 per cent, above par, 
 making the assessment of the coipo- 
 ration's personal property $507,500. 
 The principal objection to this as- 
 sessment was that the corporation 
 could only be assessed at Auburn. 
 The statute in force when the as- 
 sessment was made provided as fol- 
 lows: "The real estate of all 
 Incorporated companies liable to 
 taxation shall be assessed in the 
 town or ward in which the same 
 shall lie, in the same manner as the 
 real estate of individuals. All the 
 personal estate of every incorporated 
 company liable to assessment on its 
 capital shall be assessed in the town 
 or ward where the principal office or 
 place for transacting the financial 
 concerns of the company shall be; 
 but if such company have no prin- 
 cipal office or place for transacting 
 its financial concerns, then in the 
 town or ward where the operations 
 
no 
 
 THE LA"W OP ASSESSMENTS. 
 
 But where a resident, by agreement with the owners of 
 railway corporations, uses his own cars in delivering his 
 manufactured goods to his customers, paying freight for 
 carriage and receiving "wheel-mileage" for the use of his 
 cars, he is liable to assessment and taxation for his cars as 
 for his other personal property within the state, irrespective 
 of the portion of time the cars are without the tax district 
 of the domicile of the owner or of the state.^ In such case 
 
 of such company shall be carried 
 on." Under this statute, and the 
 facts above stated, the Court of 
 Appeals of New York held that 
 when the legislature by the Act 
 providing for incorporations, or the 
 incorporators by their certificate or 
 articles of incorporation executed 
 pursuant to a general law, have at- 
 tached the corporate body to a par- 
 ticular local division of the state, 
 whether it be city, town or entire 
 county, it cannot establish such a 
 principal office as is intended by the 
 provision of the Revised Statutes 
 (above quoted), out of such city, 
 town or county. Oswego Starch 
 Factory v. Dolloway, 21 N. Y. 449. 
 
 In the case of Salem Iron Factory 
 V. Danvers, 10 Mass. 514, it was held 
 that the real estate of a corporation 
 was assessable to the corporation 
 where situated; but that the per- 
 sonal property was assessable to the 
 stockholders at their places of resi- 
 dence and not to the corporation. 
 The court say: " The real owners" 
 (the stockholders meaning) " are lia- 
 ble to be taxed for it in their respec- 
 tive towns, and there is nothing in 
 the statutes which subjects the cor- 
 poration also to be taxed for it in the 
 town where the goods may happen 
 to be found. If it were otlierwise, 
 such a corporation would often be 
 taxable in many different towns at 
 the same time." The imperfection 
 of the rule here stated' as to non- 
 resident shareholders is apparent. 
 
 Should a shareholder reside out of 
 the state, his proportion of the tax 
 of the personal property of the cor- 
 poration would be lost; and where 
 the shareholders nearly all resided 
 in another state, which is not infre- 
 quently the case, but little of the 
 personal property of the corporation 
 would contribute anything to the 
 support of government. A differ;- 
 ent rule has been provided by legisr 
 lation. The corporation is assessed 
 for all its property, botli real and 
 personal. Stockholders in some 
 states are assessed for the value of 
 their shares — in otliers they are not. 
 This subject is treated of in chapter 
 5 and elsewhere. (See n. 1, § 46; also 
 §§ 55 and 57. ) 
 
 2 In the case below stated, the 
 plaintiff was a resident of the state, 
 resided in, owned and carried on a 
 large factory in the Fifth ward, and 
 owned a warehouse in the First ward 
 of the city of Grand Eapids, where 
 he stored and kept his manufactured 
 goods until sold and delivered to 
 customers. He laid a railroad 
 track, connecting his waiehouse 
 with other lines of railway, and 
 also owned twenty cars, and under 
 agreement with the owners of these 
 connecting railways had his cars, 
 freighted with his own goods, run 
 over their roads, and he paid them 
 freightage for carrying his goods 
 and they paid him " wheel-mileage " 
 for the use of his cars. The statute 
 of Michigan, as to the situs of per- 
 
SITUS. 
 
 Ill 
 
 the owners of the railways moving his freight cars are not 
 subject to be taxed therefor, as for property in their pos- 
 session and under their control. 
 
 sonal property kept by the owner in 
 a district without his domicile, was 
 in these words : " All goods, wares, 
 or merchandise, or stock in trade, 
 including stock employed in the 
 business of the mechanic arts, in 
 any township other than where the 
 owner resides, shall be taxed in the 
 township where the same may be, if 
 the owner hire or occupy a store, 
 mill, shop, or warehouse therein, 
 and shall not be taxable where tlie 
 owner resides." How. St. sec. 1008, 
 sub. 1. "Township" as used here 
 includes ward. Id. sec. 1013. The 
 owner of these cars was assessed 
 and taxed for them In the Fifth 
 ward, instead of the First, where he 
 resided. He paid the taxes thus 
 assessed for several years under pro- 
 test, and thereafter sued to recover 
 back the money. It was contended 
 that these cars were neither "goods, 
 wares, or merchandise or stock in 
 trade, within the meaning of this 
 section; that he (the owner and 
 plaintiff), was not making cars, or 
 keeping them in stock, or dealing in 
 them ; he was merely keeping a cer- 
 tain number for his own use. There- 
 fore the Assessor of the ward in 
 which he did not reside had no juris- 
 diction to assess them." The ruling 
 of the court was that it did not fol- 
 low " that because they ought not 
 to have been assessed in the First 
 ward the assessment was void. Per- 
 sonal property is not, according to 
 the system which prevails in this 
 state, assessable on specific enume- 
 ration, but It is assessable in gross, 
 and specific descriptions are mere 
 surplusage. In this case, it appears 
 beyond question, and it is not dis- 
 puted, that the plaintiff was assessa- 
 ble for personal property in the First 
 
 ward of the city. He had a ware- 
 house and an o'ffice there, and he had 
 a stock in trade. It was entirely 
 right and proper, therefore, to piit 
 him upon the roll for taxation In 
 that ward, and there was and could 
 have been no want of jurisdiction in 
 doing so. The error on the part of 
 the Assessor, if there was any, was 
 in including these cars as part of the 
 'goods, wares and merchandise, or 
 stock in trade' which was taxable 
 in that ward. If the assessment 
 had been made of the goods, wares, 
 etc. , in one gross sum, without any 
 specification of particulars, there 
 could have been no question what- 
 ever that the assessment would have 
 been valid, and that the plaintiff, in 
 order to obtain relief from any por- 
 tion thereof, must have appealed to 
 the board of review, as provided by 
 statute. This must be considered 
 settled by Williams v. Saginaw, 51 
 Mich. 120; [S. C, 16 N. W. Kep. 260.] 
 But the mention of the cars for sep- 
 arate valuation'can make no differ- 
 ence. The plaintiff knew, or was 
 bound to know, that the law re- 
 quired that he should be taxed for 
 personal property in the First ward 
 of the city, and lie therefore had 
 constructive notice of the assess- 
 ment actually made, and should 
 have appealed in respect to any 
 part of it of which he could justly 
 complain. There is no analogy be- 
 tween this case and the case of one 
 who is assessed in a township where 
 he has no taxable property at all, 
 and with whose assessments he is, 
 therefore, not concerned. The as- 
 sessment in such case would be void 
 for want of jurisdiction, while here, 
 if the plaintiff is correct in supposing 
 he was not taxable in the Fifth ward, 
 
112 
 
 THE LA>Y OF ASSESSMENTS. 
 
 Sec. 49. situs of personal property of foreign corporations 
 doing business within the state. — A foreign corporation may 
 establish a legal residence in the state wherein it is allowed 
 to conduct or carry on a business. This would be, in the 
 absence of statutory provisions directing otherwise, where 
 the corporation, through its managing agent, executed its 
 powers and transacted its business. The domicile of the 
 managing agent, if within the state, in most cases would be 
 deemed the domicile of the corporation.^ When a foreign 
 
 it was merely excessive. But we 
 think the cars may be properly con- 
 sidered as appurtenant to the busi- 
 ness in connection with which they 
 were used, and taxable with the 
 stock in trade." In reply to ths 
 objection that these cars were por- 
 tions of the year, without the First 
 ward, the court held that such facts 
 were immaterial, and did not affect 
 the question of their liability to as- 
 sessment in the First ward. Corn- 
 stock V. Grand Kapids, 20 K. W. 
 Rep. 624 (Mich.) , 
 
 1 In the case below noted, the court 
 construed the provisions of the stat- 
 ute which provided that "Every in- 
 habitant of the state of full age and 
 sound mind shall assist the assessor 
 in listing all property subject to 
 taxation in this state, of which he 
 is the owner or has tlT,e control or 
 management, in the manner here- 
 inafter directed ; the property of 
 ... a body corporate, company, 
 society or partnership, by its prin- 
 cipal accounting officer, agent or 
 partner: also that an agent having 
 the property of another in his con- 
 trol and management, shall list the 
 same: also that "any person re- 
 quired to list property of another 
 shall list it in the same county in 
 which he would be required to, if it 
 were his own:" and that "if tlie 
 owner resides out of the county it 
 shall be listed by the agent or person 
 having charge of the same " also mak- 
 
 ing it the duty of the assessor " to 
 list each person in his township, and 
 to assess all the property personal 
 and real therein." A foreign corpo- 
 ration was doing business within the 
 state and had a place of business 
 therein where it had an agent who 
 controlled and managed its property 
 ai;d business in the state. It was 
 held under these provisions that " A 
 resident of the state, owiiing prop- 
 erty which is used in different coun- 
 ties or localities, without its having 
 in any one an actual situs, would be 
 taxed thereon in the place of busi- 
 ness at which he managed such prop- 
 erty. But ii^ case a resident owns 
 personal property actually situated 
 in a county different from his place of 
 residence, he is taxed in the county 
 where tlie property is found." The 
 court recognized the law to be that 
 in order to be taxed out of the county 
 of the owner's residence, the prop- 
 erty must be in a permanent manner, 
 used where it is assessed; illustra- 
 ting the point by the property of a 
 livery stable keeper or proprietor of 
 a line of stages where the property 
 is transitory or always in motion ex- 
 cept when necessarily at rest as de- 
 manded by the nature of his animals, 
 or for repair of his vehicles. " The 
 situs of such property, for the pur- 
 pose of taxation, is the place of busi- 
 ness of the owner." Applying these 
 rules to the foreign corporation, be- 
 ing a railroail company the court 
 
SITUS. 
 
 113 
 
 insurance company is required to and does deposit bonds 
 with the state treasurer to be held as security to its policy 
 holders, and establishes an agency at a particular place 
 within the state, where its managing agent has his domicile, 
 and such bonds are taxable, it is to be assessed for such 
 bonds at the domicile of its managing agent and not at the 
 place where its bonds are held on deposit.^ A corporation 
 will be included within the word "person" without any 
 express provisions to that effect. A statute providing for 
 the taxation of all persons and associations for all sums 
 invested by them, whether residents of the state or not, 
 includes foreign corporations.^* Property of a foreign cor- 
 
 added — " The rolling stock of defen- 
 dant is used in the same way, and is 
 governed by the same rules. The 
 manager or agent of defendant for 
 the state, being required to list the 
 property, must do so as though it 
 vere his own. His place of busi- 
 ness is Dubuque. There his prop- 
 erty, were it used in a like manner, 
 would be taxable, and there must 
 defendant's be listed and taxed." 
 rity of Dubuque v. The Illinois Cen- 
 tral R. Co., 39 Iowa 8.3-85. 
 
 Si British Cora. Life Ins. Co. v. 
 Cora's of Taxes, 31 K T. 32. 
 
 2 Under a statute providing that 
 "all persons and associations doing 
 business in this state as merchants, 
 bankers, or otherwise and not resi- 
 deTits of the state, shall be assessed 
 and taxed on all sums invested in 
 any manner in said business, the 
 sarae as if they were residents of 
 this state, and the taxes shall be 
 collected from the property of the 
 firms, persons and associations to 
 which they severally belong." It 
 was held that foreign corporations 
 were comprehended within the words 
 — "persons and associations'' and 
 were taxable at the place where 
 they carried on their business: 
 British Com. Life Ins. Co. v. Com 
 missioners. 1 Keyes 40* (ST. Y.),308. 
 8 
 
 * Under a statute providing that 
 corporations are to be assessed for 
 their personal property — "in the 
 town or ward where the principal 
 office or place of transacting the 
 financial business is located, or 
 where the operations of the com- 
 pany shall be carried on," a corpo- 
 ration of Massachusetts had its " of- 
 fice for transacting the financial con- 
 cerns of the company " in the city of 
 New York, and had no other office 
 for transacting the financial affairs 
 within the state of New York, but 
 owned certain material and machin- 
 ery situated within the precincts of 
 the State Prison at Sing Sing in the 
 town of Osining, County of West- 
 chester, used for the manufacture of 
 boots and shoes by the labor of con- 
 victs in said prison, and such mate- 
 rial and machinery were there for 
 that purpose. The boots and shoes 
 manufactured were the property of 
 the corporation. The assessor of Ga- 
 ining assessed this property against 
 one Thomas Ilapgood, a resident d 
 the town, upon the theory that he 
 was the agent of the corporation 
 and that the town had the right to 
 assess this property. The form of 
 the assessment was — 
 
 "Hapgood, Thos., for property in 
 his possession as agent for the Bay 
 
114 
 
 THE LAW OF ASSESSMENTS. 
 
 poration, used within the state while passing through it, 
 and so used at regular intervals, the owner having no place 
 of business nor agent within the state, has no situs for tax- 
 ation ; but the corporation or person so using the same, 
 having an agent and place of business within the state, 
 may be made liable to taxation therefor at the place of 
 business of the corporation or residence of the agent.^ 
 
 to the county clerk of each county 
 and the assessment of the counties 
 ia made on this statement. The 
 
 State Slioe and Leather Company — 
 stock and macliinery, S16,000." 
 
 Under proceedings of certiorari, 
 tlie court held that this assessment 
 was unauthorized for the reason that 
 the corporation's principal office or 
 place for transacting the financial 
 concerns of the corpoiation. was in 
 the city of New York — that the As- 
 sessors of the town of Osining had 
 no jurisdiction to make the as- 
 sessment and that the assessment 
 could only be made in the city of 
 Xew York. People ex rel. v. McLean, 
 80 N. Y. 255. 
 
 ^The Pullman Palace Car Com- 
 pany, a non-resident coi'poration, by 
 contract furnished sleeping cars to 
 railroad companies operating rail- 
 ways through the State of Colorado. 
 The terms of the contract were that 
 the Pullman Company furnished the 
 cars Willi sleeping berths, &c., and 
 a dining car — the opei'ating railway 
 companies were to attach and move 
 them with their passenger trains, 
 sell tickets for the charges on these 
 cars and divide whatever was realized 
 thei'efrom at a jBxed ratio. It will 
 be observed that these cars from the 
 time they entered the state, were in 
 motion till they left it, stopping only 
 so long as through passenger trains 
 were delayed at stations. In Col- 
 orado, i-ailroads, including the track, 
 roadbed and rolling stock and all 
 personal property used in operating 
 the road is assessed by the State 
 Board of Equalization as a whole, 
 and a statement of the pro rata 
 distribution per mile is transmitted 
 
 operating companies using these 
 Pullman cars having failed to in- 
 clude them and their furniture in 
 the tax lists furnished by them to 
 the State Board of Equalization, 
 Pueblo county, through which a line 
 of railway was operated, using these 
 Pullman cars, by its Assessors, made 
 an assessment of such cars to the 
 Pullman Palace Car Company. A 
 suit was brought to enforce payment 
 of the tax upon the assessment. It 
 was held that the County Assessors 
 had no jurisdiction to make the 
 assessment. In ruling upon this 
 point the court used the following 
 language: "But it appears from 
 the stipulation of facts that the real 
 owner of this property is a non-resi- 
 dent corporation, and it does not 
 appear that the owner has a home, 
 office, or place of business within 
 the state. It affirmatively appears 
 that the property is in a constant 
 state of transition, passing from 
 point to point through the state, arvd 
 some of it, as before stated, beyond 
 the limits of the state. Under such 
 circumstances it has no more local 
 existence in one county than in 
 another of those through which it 
 passes. Transitory personal pro- 
 perty must have situs for taxation 
 or it is not subject to any jurisdic- 
 tion. To hold otherwise would be 
 to subject such property to the juris- 
 diction of every county wherein it 
 chanced to be on the annual as'sess- 
 
SITUS. , 115 
 
 Sec. 50^ situs of railroads — Telegraph lines and bridges ex 
 tending beyond the state. — It is not within the power of the 
 state to tax a railroad company for all its property when a 
 portion of its road extends beyond the state and into or 
 through other states. Only that portion of its road actually 
 within the territorial limits of the state, and a ratable pro- 
 portion of its rolling stock, can be reached. And if the 
 tax be levied upon the capital stock, as representing the 
 property of the corporation, then only a ratable proportion 
 of the value of the capital stock, proportioned to the value 
 of the corporation's entire property, within and without the 
 state, should be covered by the assessment.^ Where the 
 property extends through two or more taxable districts in 
 the same state, in the absence of statutory regulation, the 
 same rules would apply as in the case of individuals owning 
 property of like character similarly situated. In some 
 states the property of railroad companies and of other cor- 
 porations, having continuous connection and use and ex- 
 tending through two or more counties or tax districts, is 
 assessed by a state board and the tax collected and distri- 
 buted to such counties and districts according to a propor- 
 tion ascertained and based upon the value of property or 
 proportion in each.^ The same rules, as to the situs of 
 
 ment day; and the law is well set- and conimnnity of interest which 
 
 tied that no class of property can be the railway companies have and 
 
 subjected to such burdens. . . . The exercise, give the sleeping cars the' 
 
 law is that the residence or principal same situs, under the statute appli- 
 
 place of business in the atate, of the cable to this class of property, as 
 
 owner, agent, or other person legally articles of the same class owned by 
 
 interested in movable property is the railroad corporations." Carlile 
 
 Ihe situs of such property, for the v. Pullman Palace Car Co., 1 Pac. 
 
 purpose of assessment and taxation, Eep. 167 (Colo.); see also State ex 
 
 although it is liable to be in several rel. v. Severence, 55 Mo. 388. 
 
 different counties every day. . . . i State Treasurer b. Auditor Gen., 
 
 The railroad companies have pos- 46 Mich. 231. 
 
 session and control of the property, ^ The constitution of the State of 
 under contracts to continue at their California contains a provision re- 
 option for a long term of years, and quiring, "The franchise, roadway, 
 during wliich term they use these road-bed, rails, and rolling stock of 
 cars for the same purposes as they all railroads operated in more than 
 use their first-class passenger cars, one county," to be assessed by the 
 and probably realize as much profit State Board of Eqtialization, and 
 therefrom. This possession, control apportioned to the counties, cities, 
 
116 THE LAW OF ASSESSMENTS. 
 
 railroads extending beyond the state, also applies to the 
 property of telegraph companies, and to property so 
 placed or used as to be within two or more states or other 
 taxing jurisdictions. Where the tangible property of a 
 telegraph companj-, its posts and. lines of wire and other 
 attachment extend beyond and into. and through other 
 states, only that portion thereof within the state is subject 
 to taxation ; and where, as in the case of railroad and other 
 corporations, the capital stock only is taxed as representing 
 the corporation's property, only a ratable proportion of the. 
 entire value of the capital stock can be subjected to taxa- 
 tion. If a corporation owning a line of telegraph extending 
 from the Atlantic to the Pacific Ocean should be taxed on 
 its capital stock, upon an assessed valuation representing 
 its entire property, this action would not prevent each state 
 and territory in and through which the owner had neces- 
 sarily placed a portion of the propertj' from taxing sucli 
 portion. It is manifest, therefore, that such action would 
 necessarily result in double taxation. This branch of the 
 subject becomes more difficult of solution when applied to 
 the property of a corporation possessed of a cable wire 
 stretched from the west to the east shore of the Atlantic 
 Ocean. If a corporation of the city of New York be the 
 owner of a cable telegraph wire attached to the Atlantic 
 shore within the territorial limits of the state of Maine it is 
 evident that only so much of this property as exists within 
 the jurisdictional limits of Maine could be subjected to tax- 
 ation there, and tliat, as to tliat portion of the property, no 
 taxation could be properly exercised over it by the state of 
 New York. The question to be solved, however, would be, 
 what could New York tax, what portion of this cable line, 
 if any, could be taxed to the corporation in New York? 
 No portion of it being within tlie territorial limits of New 
 
 towns, townsliips and districts in turo lias provided for a statement 
 
 wliicli tlie same are located, " in from the officers of railroad corpo- 
 
 proportion to the number of miles rations operated in two or more 
 
 of railway laid in snch counties and counties, to enable the State Board 
 
 tax districts (sec. 10, art. 13, Cons, of Equalization to make the assess- 
 
 Cal. ) To carry into effect this con- ment. Sec. 3664,. P. C. (see note to 
 
 stitutional requirement the legisla- see. 51). 
 
SITUS. 
 
 117 
 
 York, but having an actual situs and use outside of the 
 state, it would seem that, as to the property itself, it would 
 be beyond the taxable jurisdiction of that state. The cor- 
 poration franchise, regarded and made taxable in some of 
 the states, would be, or could be, made subject to taxation 
 within the state, like other intangible personal property. 
 So, too, the capital stock of the corporation would be sub- 
 ject to taxation, either to the corporation or to tlie stock- 
 holders, or to both, as the charter of the corporation or the 
 statute might provide, the question being one also of valu- 
 ation. Upon the same principle, the whole of a bridge, 
 abutting upon the opposite banks of a stream or water 
 course constituting the boundary of two states, cannot be 
 taxed in either state, notwithstanding the owner may have 
 his domicile, or if a corporation, it may have been organized 
 and have its legal residence in one of them. Only the por- 
 tion within tlie limits of the state can be reached, whatever 
 may be the form of taxation.' 
 
 ' This principle was recognized in 
 an assessment of the bridge across 
 the Potomac river between George- 
 town, D. C, and Virginia. Alex- 
 andria Canal K. K. <£ Bridge Co. 
 r. District o£ Columbia, 1 Mac- 
 key (D. C.) 217. The doctrine of 
 the text was acted upon in the 
 assessment of a railroad bridge 
 built across the Mississippi river 
 between the states of Iowa and Illi- 
 nois, in an assessment made by an 
 assessor of Iowa. The question in- 
 volved in this assessment was as to 
 the portion within the State of 
 Iowa. In its determination refer- 
 ence was had to the language of the 
 acts of Congress admitting these 
 states into the federal union, and in 
 the constitution of each in defining 
 its boundary. In defining the boun- 
 dary of Illinois, the language, so far 
 as I'elates to the western boundary, 
 is " the middle of the Mississippi 
 river." In defining the eastern 
 boundary of Iowa, the exact oppo- 
 
 site line of territory, the language 
 used is, " the middle of the main 
 channel of the river."' In regard to 
 the western boundary line of Illi- 
 nois, and which was prior iu point 
 of time of location, it was plain 
 that it called for the middle of the 
 stream witliout regard to the main 
 channel; but as to the language of 
 the Iowa boundary, the court held 
 that the language had a primary and 
 a secondary meaning: the former, 
 in navigable streams meaning " the 
 line of deep water which vessels fol- 
 low," the latter, "the bed in which 
 the stream of the river flows." The 
 court used the following language 
 in its decision: " The language de- 
 scribing the boundary is 'the mid- 
 dle of the main channel of the river. ' 
 This implies that the river has more 
 than one channel. Each slough, or 
 arm of the river, has its channel, 
 in the primary sense of the word. 
 As the slough is a part of the river, 
 its channel may be properly called a 
 
118 
 
 THE LAW OF ASSESSMENTS. 
 
 Sec. 51. Situs of real and personal property, may be regu- 
 lated by statute. — All propertj% both real and personal ; 
 property of every kind susceptible of taxation, as to the 
 place of assessment and taxation, whether owned by resi- 
 dents or non-residents, corporations or individuals, is sub- 
 ject to legislative control. It may be assessed and taxed in 
 the county where it is situated or elsewhere, and the taxes 
 made payable where the assessment is made, where the 
 propertj"- is situated, or sucli other place as the legislative 
 will may have directed.* In general, the law takes no 
 
 channel of the river. Ordinarily 
 there is but one line of navigation, 
 for it is always found in tlie deepest 
 water; but it sometimes occurs that 
 in the same part of the river there 
 are two or more lines of navigation 
 ^K)ne on the right and the other on 
 the left, or one in tlie main river, 
 and another through a slough — 
 each equally deep and easy of navi- 
 gation. Which of these shall be 
 called the main channel ? The ad- 
 jective ' main,' as here used, means 
 principal. It is very plain that the 
 words used in describing the boun- 
 dary of the state, 'main channel' 
 could not be applied in such a case. 
 But the principal channel of the river 
 is the bed of the main stream, and 
 in all cases may be described as the 
 main channel. The act of Congress 
 of April 18th, 1818, enabling the 
 people of Illinois to form a state 
 government, provided that the wes- 
 tern boundary of the state shall be 
 ' the middle of the Mississippi river.' 
 The same language is used in the 
 constitution of the state to describe 
 its western boundary. The line here 
 indicated is the middle of tlie main 
 stream of tlie river, theftlum aquas, 
 and not the middle of the deep wa- 
 ter used by vessels. It is very plain 
 that in prescribing the eastern boun- 
 dary of Iowa, it was intended to be 
 concurrent with the western boun- 
 dary of Illinois. If this were not 
 
 so, there would arise frequent occa- 
 sions of conflict of jurisdiction be- 
 tween the two states, for if the Iowa 
 boundary follows thd navigable 
 channel, it would often overlap the 
 boundary line of Illinois; and it 
 would sometimes happen that parts 
 of the river would be without the 
 boundary lines of either state." 
 The assessment liad been made ac- 
 cording to the primary meaning of 
 the words " middle of the main 
 chaimel of the river," which, in the 
 particular Instance, was 450 feet 
 east of "the middle of the Missis- 
 sippi river," and consequently in- 
 cluded that much of the bridge 
 witliin the boundary or limits of 
 Illinois. Dunleith & Dubuque 
 Bridge Co. v. County of Dubuque, 
 8 N. W. Kep. 76, 77 (Iowa). 
 
 1 Dubuque v. Chicago D. &. M. 
 E. Co., 47 Iowa 196; Vanatta ». 
 Kunyon, 41 N. J. L. 98. A statute 
 of New York, from which the ex- 
 tract in this section was taken, con- 
 tained as part of tlie same section 
 the following provision : 
 
 "In the case of toll-bridges, the 
 company owning such bridge shall 
 be assessed in the town or ward iu 
 which the tolls are collected; and 
 when the tolls of any bridge, turn- 
 pike or canal company, are collected 
 in several towns or wards, the com- 
 pany shall be assessed in the town 
 or ward in which the treasui-er or 
 
SITCS. 119 
 
 notice of the domicile of the owner in the assessment and 
 taxation of real estate, but in making an assessment of per- 
 sonal property, with some exceptions, the domicile of the 
 owner determines the jurisdiction of the assessor. The 
 provision in a revenue law that "the real estate of all 
 incorporated companies liable to taxation on their capital 
 stock shall be assessed in the town or ward where the prin- 
 cipal office or place for transacting the financial concerns of 
 the company shall be," would require the assessment of the 
 real estate of a corporation in the county in which its prin- 
 cipal office was situated, and the payment of the taxes 
 thereon at its place of business and not in the county 
 M'here the realty was situated. Such legislation is not 
 repugnant to the powers of a state legislature.^ 
 
 Sec. 52. The equitable rule of situs of personal property for 
 taxing purposes. — The equitable rule for the situs of all 
 tangible personal property not in transitu is to assess and 
 tax it in the county or district where it has been placed 
 and is found at the time the assessment is made. This rule 
 would include all intangible personal property in the pos- 
 session or under the control of one, other than the owner, 
 in a county or district separate from the domicile of the 
 owner. Where a railroad, owned by a corporation, extends 
 through two or more counties, it is inequitable to require 
 or allow the entire personal property to be assessed and tlie 
 taxes collected and applied in the county or district within 
 which the corporation has its principal office or place of 
 business, or the owner his domicile, while other counties 
 and districts may have, and perhaps do protect more than 
 half of the property during thfi.fiuancial year.(a) The iu- 
 
 otlier officer authorized to pay tlie real estate, was to be assessed in the 
 
 last preceding dividend resides." district wherein it was situated. 
 
 An assessment was made of a toll- Tlie construction placed upon the 
 
 bridge, by a school district within statute was that it had reference 
 
 which the bridge was located, and only to personal property and that 
 
 the question was whether the toll- the bridge being real estate, was 
 
 bridge as well as the personal prop- taxable where situated. Hudson 
 
 erty of the company, or only the K. B. Co. v. Patterson, 74 N. Y. 368. 
 
 personal property, was assessable (a) An equitable rule of situs of 
 
 where the company had its principal railroad property extending into two 
 
 office and the toll-bridge which was or more counties has been provided 
 
120 
 
 THE LAW OF ASSESSMENTS. 
 
 equality of such a rule is seen in the case of the Bay State 
 Shoe and Leather Company, where the company's property 
 was located and its leather worked into shoes within the 
 Sing Sing prison, in the town of Osining, and only its 
 financial concerns transacted at its office in the city of New 
 York. The town of Osining protected the company's entire 
 property and the city of New York received its entire taxes.^ 
 
 by sections 3664 and .3665 of the 
 Political Code of California. The 
 State Board of Equalization, in such 
 I'ases make the assessment of the 
 enth-e property of the company 
 ■within tlie state. The assessment 
 is to be of " the franchise, roadway, 
 roadbed, rails, and rolling stock of 
 all railroads operated in more than 
 one county," and must be made 
 " to the corporation, person or asso- 
 ciation of persons owning the same, 
 and must be made upon the entire 
 railway within the state, and must 
 include the right of way, bridges, 
 culverts, wharves and moles upon 
 wluch tlie track is laid and all 
 steamers which are engaged in trans- 
 porting passengers, freights, and 
 passenger and freight cars across 
 waters which divide the road. . . . 
 The board must apportion the total 
 assessment of the franchise, road- 
 way, roadbed, rails and rolling stock 
 of each railway to the counties or 
 cities and counties in which such 
 railway is located, in proportion to 
 the number of miles of railway laid 
 in such counties, and cities and coim- 
 ties." After such apportionment is 
 made the same is to be transmitted 
 to the counties interested and the 
 Board of Supervisors of the county 
 in which an assessment is made and 
 has been apportioned, "must make 
 and cause to be entered in the proper 
 record book, an order stating and 
 declaring the length of main track 
 of the railway assessed by the State 
 Board of Equalization within the 
 
 county; the assessed value per mile 
 of such railway ; the number iif 
 miles of track and the assessed vahie 
 of such railway lying in each city, 
 town, township, school and road 
 district, or lesser taxing district in 
 the county, or city and county, 
 through which such railway runs, as 
 fixed by the State Board of Equali- 
 zation" — and it is provided that 
 such assessment shall constitute the 
 assessment value of the property for 
 taxable purposes within the several 
 taxing districts for county, city, 
 town, township, school, road or 
 other district purposes; and that 
 such railway property " shall be tax- 
 able upon said assessment at the 
 same rates, by the same officers and 
 for the same purposes as the proi> 
 erty of individuals within such tax- 
 ing districts." § 3663 P. C. Cal. 
 This rule of taxation, it is con- 
 ceived, deals in the spirit of equal- 
 ity with each local division of gov- 
 ernment tliTOUgh which a railway 
 extends and in which any por- 
 tion of the property of railways is 
 situated and receives governmental 
 protection. The same equitable rule 
 could and should be applied to the 
 assessment and taxation of all per- 
 sonal property within the state. 
 See post, § 142, n. 1, 2, 5. 
 
 See case of Richmond & Danville 
 E. E. Co. ». Alamance Comm'rs, 
 84 N. C. 504. 
 
 ' People ex rel. v. McLean, 80 X. 
 Y. 255. 
 
SITITS. 
 
 121 
 
 The inequality of any rule or law which, in its practicable 
 application, casts the burden of the protection of property 
 upon one local division of government, w^hile authorizing 
 and requiring the tax imposed thereon to be collected and 
 applied to another, is too apparent for argument. (J) 
 
 (6) In a case in the State of Kan- 
 sas the facts were, that the owners of 
 cattle and horses resided in one 
 county and kept tlieir stock in an- 
 other. The statute was in the fol- 
 lowing language: (part of § 7, Laws 
 of 1881, c. 34.) " All personal prop- 
 erty shall be listed and taxed eacli 
 year in the township, school district, 
 or city in which the property was lo- 
 cated on the first day of March. . . . 
 Animals and farming implements 
 shall be listed and taxed where they 
 are usually kept; provided that if 
 the owner of such animals lives out- 
 side the limits of a city, such prop- 
 erty shall be taxed in the township 
 where the owner resides." The 
 owners resided in Sedgwick county 
 and kept their stock in Reno county 
 where the assessment was made. 
 The court, construing this statute, 
 used the following language : " The 
 only question presented to tliis court 
 for consideration is whether or not 
 the said property was taxable in Eeno 
 county. The defendants below, 
 plaintiffs in error, claim tliat it was; 
 while the plaintiffs below, defendants 
 in error, claim that it was taxable 
 in Sedgwick county. The court be- 
 low decided in favor of the plaintiffs 
 and we think Correctly. It will be 
 remembered that the owners of the 
 property resided in Sedgwick county, 
 and not in Reno county, and they 
 did not reside within the limits of 
 any city; and therefore, under tlie 
 proviso of said section 7, the prop- 
 erty should have been taxed in the 
 township where the owners resided, 
 and not in Reno county where it 
 was kept. The proviso qualifies and 
 
 modifies the other provisions of the 
 section in this respect. If the own- 
 ers of the property had been non- 
 residents of the state, or had resided 
 in some city of tlie state, then the 
 property should have been taxed in 
 Reno county, where it was kept. 
 But as the owners of the property 
 were residents of the state, residents 
 of an organized county, not residents 
 of any city, but evidently residents 
 of some township in the county 
 where they resided, the property 
 should have been taxed in sucli 
 township." McCandless v. Carlisle, 
 4 Pac. Rep. 623 (Kan). 
 
 As previously stated, the situs of 
 all property within the state for the 
 purposes of taxation is subject to 
 legislative control. The injustice, 
 however, of the rule of the statute, 
 as construed, and that too, correctly 
 in the above case, is too apparent to 
 require argument. By the mere fact 
 of the residence of the owner of tliis 
 property, within the state, outside 
 of a city, Reno coimty, wherein the 
 property was protected by the law. 
 as also the school district wherein 
 the property was kept, were deprived 
 of the revenue arising from its as- 
 sessment for taxation. In case of a 
 larceny of the property the law offi- 
 cers of Reno and not Sedgwick 
 county would be called on to arrest 
 the thief and restore the property. 
 If this owner should change his resi- 
 dence to a city or another state, the 
 school district in Eeno county miglit 
 prosper, but if such owner should 
 domicile in a township outside of a 
 city, and within a state, such pros- 
 perity would be changed in degree 
 
122 THE LAW OF ASSESSMENTS. 
 
 Sec. 53. General rule governing the situs of property for tax- 
 ation.— The following may be regarded as established rules 
 for the assessment of property for taxable purposes except so 
 far as otherwise controlled by express legislation : 1. Real 
 estate must be assessed in the county or otlier tax district 
 wherein it is situated, regardless of the domicile of the 
 owner ; 2. Where a tract or separate parcel is situated 
 partly in one and partly in another county or district, onh' 
 that portion within the county or district, can be included 
 in the assessment; 3. Personal property must be assessed 
 to a resident owner at his domicile, but when the assess- 
 ment is made of the personal property of a non-resident, it 
 must be to the person in possession or control of the prop- 
 erty, at his domicile, he being for that purpose, substituted 
 for the owner ; the same rules apply when the owner is a 
 corporation ; 4. As already intimated, these rules are varied 
 and controlled by statutory regulation. Therefore, to de- 
 termine the situs of personal property for taxation, and 
 more especially as relates to non-residents and corporations, 
 the statute or code provisions must be consulted. 
 
 at least, equal to the tax on the ought to be made subject to taxation 
 property. It is a clear violation of where it receives the protection of 
 tlie equitable rule that all property the law. 
 
SITUS. 123 
 
 CHAPTER V. 
 
 SITUS . — ( Continued.') 
 
 Sec. 55. Corporate shares or stock in National Banks.— 
 When and where assessable. — The shares or stock of a na- 
 tional bank, organized under the National Banking Act, 
 are taxable for state purposes "at the place where the 
 bank is located and not elsewhere." There is this limita- 
 tion on the power of the states to tax the shares or stock 
 of National banks — the tax rate must not be greater " than 
 is assessed upon other moneyed capital in the hands of 
 individual citizens of such state;" in short, the tax must 
 not be at a greater rate than is assessed upon banks or 
 other moneyed corporations organized under state author- 
 itj'. Real estate owned by any national bank must be 
 assessed at the same place and in the same manner as if 
 owned by individuals. The National Banking Act requires 
 every banking association organized and doing business 
 under it, to keep a list of its stockholders subject to in- 
 spection by shareholders, creditors " and officers authorized 
 to assess taxes under state authority, during business hours 
 of each day."^ The abstract right of the states to tax the 
 
 1 The validity of that feature of notes issued to these banks, and 
 
 the National Banking Act which which constitute their capital fund; 
 
 autliorizes tlie taxation of the that Congress has no power to au- 
 
 shares or stock of National Bank- thorize the states, directly or indi- 
 
 ing Associations was adjudicated by rectly, to tax the bonds, securities or 
 
 the Supreme Court of the United other property of the United States, 
 
 States. The majority opinion held resting their opinion on the author- 
 
 the law, in this particular, to be ity of McCulloch v. The State of 
 
 valid. The minority opinion holds Maryland (4 Wheat. ,316), decided 
 
 that the taxation of the shares of in 1819; Osborne v. The Bank of 
 
 these banks is a tax on the bonds of the United States (9 Wlieat. 738), 
 
 the United States, which are re- decided in 1824, and Weston v. The 
 
 quired to be deposited with the City of Charleston (2 Peters 449), 
 
 Treasurer of the United States as decided in 1829. The majority opin- 
 
 seeurity for the redemption of the ion, answering the objections to this 
 
124 
 
 THE LAW OF ASSESSMENTS. 
 
 shares of these banks, within the limitations stated, is 
 therefore a settled question. Another question arose upon 
 this limitation ; whether it applied to and included those 
 state banks or moneyed corporations or capital owned by 
 individuals, at the time of the enactment of the National 
 Banking Act, or only those subsequentlj'- organized or cre- 
 ated; and it was held that the act was intended to be pro- 
 spective only.^ But while the right of the state exists to 
 tax these shares, it can only be done after the legislature has 
 passed laws authorizing their assessment and providing the 
 mode of doing it.** By more recent legislation of Congress 
 on this subject the power of the states over the taxation of 
 these shares is now subject only to the restriction that tlie 
 taxation shall be at no greater rate than is assessed upon 
 other monej'ed capital in the hands of individual citizens* 
 and tliat the shares of non-resident holders be assessed to 
 them at the town or city within the state where the bank 
 is located.* But as all taxation is imposed by force of 
 
 featux-e of the National Banking 
 Act, held that if it be conceded that 
 a tax on the shares or stock of these 
 banks be a tax on the U. S. bonds 
 constituting their capital, it is only 
 a tax upon the new uses and new 
 privileges conferred by the charter 
 of the association; that it is but a 
 condition annexed to tlie enjoyment 
 of this new use and new application 
 of these bonds; that if Congress pos- 
 sessed the power to grant these new 
 rights .and privileges, the power to 
 annex the conditions followed as a 
 necessary consequence. Van Allen 
 *. The Assessors, 4 Wheat. 316. 
 
 2 The practical application of this 
 limitation was tested in the state of 
 Missouri, where two banks existing 
 under state charters chose to retain 
 their state organization, and by their 
 charters could not be taxed at a 
 higher rate than one per cent., while 
 the tax assessed upon the national 
 bank shares, although levied and 
 assessed at no higher rate than on 
 
 the shares of other moneyed capital 
 iu the hands of citizens of the state, 
 amounted to nearly two per cent. 
 The question was embarrassed only 
 by the status of these two state 
 banks, which codld be taxed at no 
 higher rate than one per cent. It 
 was held that the legislation of Con- 
 gress, in this particular, was intended 
 to be prospective, and that having 
 done all that could be done, it was 
 not the intention that because one 
 or two state banks existed, antece- 
 dent to the passage of the law itself, 
 exercising privileges and exemptions 
 under the law of their organization, 
 that all shares of National Banks 
 should for that reason wholly es- 
 cape taxation. Linburger v. Rouse, 
 9 Wall. 468 (1869.) 
 
 3 People V. Moore, 1 Ida. 504, 510. 
 
 * 15 U. S. Stat, at Large 34. 
 
 ^ The taxation of shares in na- 
 tional banks, owned by non-resi- 
 dents, at the place where the bank 
 is located, has often been the sub- 
 
SITUS. 
 
 125 
 
 statutory authoritj-, if no provision exists for taxing this 
 character of property, national bank shares cannot be in- 
 cluded in any assessment, whether the owner be a resident 
 or a non-resident.^ The same rule will apply to all classes 
 
 jpct of consideration by tlie courts. 
 After designating sucli shares as 
 liersonal property, tlie Supreme 
 Court of the United States, refer- 
 ring to the power to control tlie situs 
 of this class of property, vise the fol- 
 lowing language: " They are a spe- 
 cies of personal property which Is, 
 in one sense, intangible . and incor- 
 poreal, but the law which creates 
 lUem may separate them from the 
 person of their owner for the piir- 
 lioses of taxation, and give tliem a 
 Kitus of their own. This has been 
 clone. By section 41 of the Na- 
 tional Banking Act, it is in effect 
 pi'ovided tliat all shares in such 
 banks, held by any person or body 
 corporate, may be included in the 
 valuation of the personal property 
 of such person or corporation in the 
 assessment of taxes imposed under 
 state authority at the place where 
 the bank is located, and not else- 
 where. This is the law of the prop- 
 erty. Every owner takes the property 
 subject to this power of taxation un- 
 der state authority, and evei-y non- 
 resident, by becoming an owner, 
 voluntarily submits himself to the 
 jurisdiction of the stale in which 
 the bank is established for all the 
 purposes of taxation on account of 
 his ownership. His money invested 
 in the shares is withdrawn from tax- 
 ation under the authority of the state 
 in which he resides, and submitted 
 to the taxing power of the state 
 where, in contemplation of the law, 
 his investment is located. The state, 
 therefore, within which the national 
 bank is situated has jurisdiction, 
 for the purposes of taxation, of all 
 the shareholders of the bank, both 
 
 resident and non-resident, and of all 
 its shares, and may legislate accord- 
 ingly." It was therefore held that 
 it was within the power of the legis- 
 lature to locate personal property, 
 intangible as well as tangible, for 
 the purposes of taxation, without 
 regard to the residence of the 
 owner; citing as instances the fre- 
 quent exercise of this power in re- ' 
 quiring live stock and personal 
 property, kept and used on farms, 
 to be assessed wliere the farm is situ- 
 ated; property in the hands of an 
 agent, where the business of the 
 agent is transacted; water craft 
 where they are. enrolled or kept; 
 property of bankers, brokers, mer- 
 chants and manufacturers, and other 
 classes where their business is car- 
 ried on. Tappan v. Merchants Na- 
 tional Bank, 19 Wall. 499, 500. 
 
 ^ The territory of .Idalio, by its or- 
 ganic act, was authorized to provide 
 for tlie taxation of all property within 
 its territorial limits, and this inclu- 
 ded shares of such national banks 
 as should be organized within the 
 territory. The revenue laws on the 
 subject of the taxation of that chai- 
 acter of property was in these words: 
 " All capital loaned, invested, or em- 
 ployed in any trade, commerce or 
 business whatever; the capital stock 
 of all corporations, companies, asso- 
 ciations, firms, or individuals doing 
 business or having an office In the 
 territory; the money, property, and 
 effects of every kind, except real 
 estate, of all banks, banking institu- 
 ticms or firms, bankers, money lend- 
 ers, and brokers." In construing 
 this provision, the court used the 
 following language : "It will prob- 
 
126 
 
 THS LAW OF ASSESSMENTS. 
 
 and species of property: there must be general or specific 
 statutory authority for taxing it, and it is the province of 
 the legislature to declare the situs and enact the rules 
 which are to govern in the assessment of all property 
 within the state for the purposes of taxation.^ 
 
 ably not be denied that personal 
 property of the nature of bank 
 shares ordinarily follows the situs 
 of the owner; that it is usually situ- 
 ated where the owner resides. We 
 think that under the ordinary rule, 
 this description of property in the 
 absence of statutory provision would 
 be deemed to be situated where the 
 owner resided. Congress, however, 
 in the forty-first section of the na- 
 tional currency law of June, 1SC4, 
 did assign to the shares in these na- 
 tional associations a situs for the 
 purpose of taxation. That situs of 
 the shares in said national associa- 
 tions, by the act construing said sec- 
 tion, approved February 10th, 1868, 
 is fixed within the state where the 
 bank is located, and in the case be- 
 fore us is within the territory of 
 Idaho. And by the proviso of the 
 amending act aforesaid it is provi- 
 ded, ' Tliat the shares of any na- 
 tional bank owned by non-residents 
 of any state shall be taxed in the 
 city or town where said bank is lo- 
 cated, and not elsewhere.' We 
 think the territorial legislation does 
 not sufficiently conform to the laws 
 of Congress, and that the defendant's 
 demurrer should be sustained." Peo- 
 ple V. Moore, 1 Ida. 512. 
 
 ' The Pullman Palace Car Com- 
 pany, a corporation of Illinois, con- 
 tracted with railroad companies 
 operating railways through the state 
 of Colorado, by the terms of which 
 these railroad companies attached 
 sleeping and dining cars to their pas- 
 senger trains, and divided with the 
 Pullman Palace Car Company the 
 proceeds arising from the use of 
 
 their cars. The revenue laws of 
 Colorado provided for the assess- 
 ment of all railroads and all rolling 
 stock and personal property used in 
 operating railroads within the state 
 by the state board of equalization. 
 This was the only provision for the 
 assessment and taxation of that 
 character of property. No special 
 return for assessment of these Pull- 
 man palace cars having been made by 
 the companies using them, one of the 
 county assessors of a county through 
 which they passed made an assess- 
 ment of those cars which were ope- 
 rated in his county. But it was held 
 that he was not authorized by law to 
 assess this class or character of prop- 
 erty. The following language was 
 used by the court: "It must be 
 borne in mind that the imposition 
 of a tax is a legislative act, and, un- 
 less authority is so given, it does not 
 exist; also that the property to be 
 taxed, as well as the mode of taxa- 
 tion, is subject to legislative control. 
 Cooley Tax'n, 244; Pierce, R. L. 81. 
 As we construe section 2251, tlie 
 county officials are authorized to 
 assess the real estate of these cor- 
 porations, together with the improve- 
 ments thereon (not including any por- 
 tion of the road itself), situated in 
 their respective counties, and they 
 are likewise authorized to levy taxes 
 upon their pro rata distribution of 
 the entire assessment of the re- 
 mainder of the property owned and 
 used by the railways, the jurisdic- 
 tion to assess which is conferred 
 upon the state board of equaliza- 
 tion.'' Carlile t. Pullman Palace 
 Car Co., 7 Pac. Rep. 168 (Colo.) 
 
SITUS. 127 
 
 Sec. 56. Corporate shares or stocks — ^where and -when as- 
 sessable-Continued.— Whenever it is provided by statute that 
 all the shares or stock of corporations shall be assessed to 
 the owners or holders thereof, such shares or stock must be 
 assessed to the owners and holders at their domicile under 
 the same rules and regulations as apply to other personal 
 property. Where the entire capital or property of a cor- 
 poration or firm is assessed to the corporation or firm, tlie 
 owner or holder of the stock must not be assessed individ- 
 ually for any interest he may own in the property of the 
 corporation as the owner of its shares or stock.'^ Any other 
 system would be double taxation. ^ If a corporation own 
 stock in another corporation and the shares are taxable, the 
 stock so owned must be assessed where the corporate owner 
 is located, and not where the corporation issuing the stock 
 has its office and place of business;^ shares of the stock of 
 a corporation owned and held by a non-resident, where the 
 stock is made taxable to the stockholders, is not subject to 
 the taxing power of the state where the corporation exists.* 
 
 ^ " If the property of a corporation fore all property belonging to corpo- 
 
 is taxed in the hands of the stock- rations shall he assessed and taxed, 
 
 holders, it cannot be taxed in the but no assessment shall be made of 
 
 hands of the coporation also. A shai-es of stock, nor shall any holder 
 
 corporation is taxable, like a natural thereof, be taxed therefor." (Ap- 
 
 persou, but is not to be taxed twice;" proved March 7tli, 18S1). 
 
 State V. Hannibal and St. Jo. R. R. ' Bank v. City of Nashua, 46 N. H, 
 
 Co., 37 Mo. 268 ; See also Gordon's 389. 
 
 Exrs. V. Baltimore, 5 Gill. (Md.) K. * Union Bank of Tennessep v. The 
 
 281. State, 9 Yerg. R. 490; City and 
 
 2 The effect of an assessment of a County of San Francisco v. Mackey, 
 
 corporation for all its property and 4 West Coast E. 408 (Cal.) In the 
 
 an assessment of its shares in the case last cited (City and County of 
 
 hands of its stockholders, has been San Francisco v. Mackey) the defeii- 
 
 recognized in California as double dant a resident of Nevada was as- 
 
 taxatlon, by section 3608 of the Po- sessed in California for shares of 
 
 litical Code which reads as follows : stock owned and held by him in 
 
 "Shares of stock in corporations California corporations. He was 
 
 possess no intrinsic value over and also assessed for " credits," money 
 
 above the actual value of the prop- on deposit in California banking 
 
 erty of the coi-poration which they corporations located in Calfornia. 
 
 stand for and represent, and the as- The constitution of each of these 
 
 sessment and taxation of such shares states required all property within 
 
 and also of the corporate property the state to be taxed. It was held, 
 
 would be double taxation. There- upon the authority of a large num- 
 
128 
 
 THE LAW OT? ASSKSSMEXTS. 
 
 In California, as we have aheady seen, all the taxable 
 property is taxable to the corporation, and the shares or 
 stock is not assessable — the doctrine there being recognized 
 that to do so, would be double taxation. In Oregon the 
 same principle is recognized.^ As between the pledgor and 
 pledgee of stock of a corporation, where the provision of 
 the statute was that " when personal property is mort- 
 gaged or pledged, it shall, for the purposes of taxation, be 
 deemed the property of the party who has the possession " 
 it was held that where stock had been transferred and was 
 held as security', it was assessable to the mortgagor or 
 pledgor and not to the mortgagee or pledgee ; and that 
 this provision of the statute includes only tangible prop- 
 
 ber of cases that the Situs of incorpo- 
 real and intangible property, shares 
 of stock, as also "credits" created 
 by the deposit of money in a bank 
 on general account, follows the per- 
 son of the owner, and that such 
 property is taxable only at the place 
 of his residence. 
 
 Double Taxation of Railroad prop- 
 erty. Under a statute providing that 
 the right of way " including the su- 
 perstructure of main, side or second 
 track and turnouts, and the station 
 and improvements of the railroad 
 company on sucli right of way, shall 
 be held to be real estate for the pur- 
 poses of taxation, and denominated 
 ' railroad track ' and shall be so test- 
 ed and valued " etc., where a railroad 
 company has tracks laid on the sides 
 of its main track, connected there- 
 with and used for switching, making 
 up trains, loading and unloading, 
 depots, round houses, machine and 
 blacksmith and paint shops, and tlie 
 same has been assessed to the corpo- 
 ration as part of its right of way 
 and the same property is assessed to 
 the corporation by the county asses- 
 sor as "real estate other than rail- 
 road track" such assessment would 
 constitute double taxation: Chicago 
 
 & Alton R. R. Co. v. People, ex. rel. 
 98111.356; 99 id. 466. 
 
 These cases seem to conflict witli 
 " C. B. & Q. E. R. Co. V. Paddock, 
 75 111. 620, where it was held that 
 " By the ' right of way,' can only he 
 understood the land used as a way 
 for the road, and not such addi- 
 tional ground as may be used for the 
 convenience of the road, but not 
 as a part of its 'way' and continu- 
 ing — "we cannot doubt that land 
 used by the company for its stations 
 and machine shops, beyond the right 
 of way, was properly assessed by the 
 local assessor " etc. This seeming 
 conflict may have resulted from a 
 change in the statutes under which 
 the assessments were made. 
 
 15 Sec. 13, chap. 57, title 2, Gen. 
 Laws provides that "Tlie pei'sonal 
 property of every private corpora- 
 tion is liable to assessment and tax- 
 ation, unless otherwise specially 
 provided, and shall be assessed iti 
 the name of such corporation in the 
 county where the principal oflBce or 
 place of business of such coporatiou 
 is located; but if such corporation 
 is engaged in the business of navi- 
 gation or railroading, then the steam- 
 boats or other water craft of such 
 
SITUS. 
 
 129 
 
 erty.^ "Where it is provided, that when the entire capital 
 stock or property of a corporation is assessed to the corpo- 
 ration, the shares must not be assessed to the shareholders, 
 and an assessment of shares has been made, it will be pre- 
 sumed that the assessor, in making the assessment acted in 
 accordance with law, and that the shares assessed, are held 
 in foreign corporations or that the corporations issuing 
 such shares were not assessed for their entire capital stock 
 or property. The facts which would exempt such shares 
 fi'om taxation, must be shown by the party objecting.'' 
 
 corporation shall be assessed in the 
 county in this state where the home 
 jjort or berth of such steamboat or 
 other water craft may be, and the 
 rolling stock of such railway shall 
 be assessed In the county in tliis 
 state wherein the'principal terminus 
 or depot of such railroad may be; 
 provided: That if either termini or 
 any depot of such road be in the 
 county where such corporation has 
 its principal office or place of busi- 
 ness then such rolling stock shall be 
 assessed in such county." . . . Sec- 
 tion 14 of the same chapter provides 
 as follows: "The owner or holder 
 of stock in any incorporated com- 
 pany whicli is taxed on its capital, 
 shall not be taxed as an individual 
 for such stock." 
 
 8 The facts were that one Belknap 
 pledged to the Waltham Bank 120 
 shares of the Fitchburg E. R. Com- 
 pany as collateral security for the 
 payment of his promissory note for 
 $10,000, loaned to him by the bank. 
 The bank held the certificate of these 
 shares as security only, for the pay- 
 ment of B.'s note. The Assessor 
 assessed these shares to the bank 
 and a tax of $64.80 thereon was paid 
 under protest, and the bank sued 
 the town to recover back the money. 
 The court after examining the doc- 
 trine as to where the ownership or 
 title to property is after it has been 
 mortgaged, find that it is in the 
 9 
 
 mortgagor; and then proceed to ex- 
 amine the question whether the pro- 
 vision of the statute to tlie effect 
 that "when personal property is 
 mortgaged or pledged" it shall for 
 the purposes of taxation be deemed 
 the property of the party having the 
 property in possession, conclude 
 that " the language of the eleventh 
 section does not refer to any such 
 property or securities; it refers, evi- 
 dently, to property that is tangible, 
 movable, and capable of possession 
 by either party, which stock mort^ 
 gaged is not. The title cannot be 
 iji the mortgagee and the possession 
 in the mortgagor. . . . The language 
 of both sections is descriptive of 
 corporeal, visible, and tangible prop- 
 erty, of which either party may take 
 open possession, and not of incor- 
 poreal hereditaments or rights. 
 which are incapable of such posses- 
 sion." Waltham Bank v. Inhabi- 
 tants of Waltham, 10 Met. 338. 
 
 ' Section 3640 of the Political Code 
 of California originally read as fol- 
 lows : 
 
 " The owner or holder of stock in 
 any firm or corporation, the entire 
 capital or property whereof is as- 
 sessed, must not be assessed indi- 
 vidually for his stock in such firm or 
 corporation." Whilst this section 
 was in force an assessment was made 
 of mining stocks valued at $600,000. 
 In an action brought to recovei 
 
130 THE LAW OP ASSESSMEKTS. 
 
 Sec. 57. Rules governing the assessment of shares or stock 
 of Corporations.— The following rules, subject of course to 
 be varied and controlled by express statutory or constitu- 
 tional provisions, are applicable to the assessment of shares 
 or stocks of corporations : 1. The shares or stock of a Na- 
 tional Banking Association are to be assessed at the place 
 where the bank is located:^ 2. The shares or stocks of 
 other corporations, when assessable, at the domicile of the 
 owner or holder ; 3. When the corporation is assessed for 
 all its property real and personal the shares of its stock 
 are not to be assessed to the stockholders ; 4. When the 
 shares or stock is assessed to the shareholders for the value 
 of the corporation's personal property and its real estate is 
 assessed to the corporation, no assessment can be made to the 
 corporation on account of its personal property ; 5. The 
 shares or stock owned and held by a non-resident cannot be 
 assessed, but the shares or stock of a foreign corporation 
 owned and held by a resident may be assessed to the owner 
 and holder at his domicile, and the fact whether such stock 
 of a foreign corporation or its property is or is not taxed 
 in the country where the corporation issuing it exists, does 
 not affect the question of its liability to taxation in the 
 hands of a resident owner. In the assessment of the 
 shares or stock of a corporation to the stockholders and 
 the property, to the corporation, the same caution against 
 double taxation should be observed as when assessing indi- 
 viduals. The shares of a corporation, as a general thing, 
 
 the tax on this assessment, it was ized the assessment, i. e., that the en- 
 objected that the assessment was tire capital stock of the corporations 
 unauthorized, because it did not was not assessed or that the property 
 appear that the entire capital or of the corporation was situate in 
 property of the corporations was another state. " It is incumbent on 
 not assessed ; but the court held that tlie defendant to show that the ac- 
 hy the express terms of the section, tion of the assessor is unauthorized 
 shares in corporations were exempt by law. If the property of the cor- 
 only where their entire capital or porations was in this state, and was 
 property was assessed; that to sus- assessed, it was susceptible of ready 
 tain the assessment the court would proof." City and County of San 
 presume that the assessor had acted Francisco v. Flood, 2 Pac. Kep. 266 
 in accordance with law, and that the (Cal). 
 circumstances existed w^hich author- ^ Howell u. Cassopolis, 35 Mich. 41. 
 
SITUS. 131 
 
 possess no intrinsic value beyond the value of its property: 
 especially is this so Avhen the corporation is one that may 
 be organized under a general law. <- 
 
 Its rights and privileges, usually termed its franchise, 
 may possess a value independently of its property. This 
 is recognized and made the subject of taxation in some 
 states, and may be valued and assessed to the corporation 
 or to the stockholders, but cannot be taxed to both without 
 making a double tax. 
 
132 
 
 THE LAT7 OF ASSESSMENTS. 
 
 CHAPTER VI. 
 
 NAME OF OWNEE. 
 
 Sec. 60. Assessments, to be made to the O'wner by Ms pro- 
 per name— not to a deceased person. — The general rule is tli'at 
 all property, real and personal must be assessed to the own- 
 er by his proper name, if known ; but if not known to 
 " unknown owners." When the attempt is made to make 
 the assessment to the owner by his proper name, the same 
 rules of law are applicable* as in other cases where a misno- 
 mer is relied on as an objection or defense. The addition 
 of "junior " is no part of the name "but an addition by use 
 and serving for a convenient distinction when a father and 
 son have each the same christian and surname, or when two 
 persons of the same name and occupation reside in the 
 same town.^ An assessment may be made to the owner 
 
 1 Kinkaid v. Howe, 10 Mass. 204, 
 *205; Cobb v. Lucas, 15 Pick. 8. 
 "The addition of 'junior' is no part 
 of the name of the commissioner. 
 It Is a mere description of the per- 
 son, and intended only to designate 
 between different persons of the 
 same name. It is a casual and tem- 
 porary designation. It may exist 
 one day and cease the next. The 
 question here Is, whether the Zac- 
 cheus Higby who was elected com- 
 missioner, and the Zaccheus Higby 
 who certified the survey, was one 
 and the same person ; and the return 
 does not deny that fact, nor even 
 aver an opinion or belief that they 
 were not the same person. The de- 
 fendant was bound to aver the fact 
 affirmatively and directly if they 
 were not one and the same person." 
 
 The People v. Collins, 7 Johns. *553. 
 Wliere title was deraigned under 
 one Michael Cummings, Junior, 
 from two sources, one through a 
 judgment sale, and the other througli 
 a conveyance by deed, the facts 
 were, that at the time of the com- 
 mencement of the action in which 
 the judgment was obtained, and ever 
 since then there were two persons re- 
 siding in St. Paul by the name of 
 Michael Cummings, father and son. 
 The action was commenced and 
 prosecuted to judgment against 
 Michael Cummings, Junior, by the 
 name of Michael Cummings, and 
 upon the sale under execution, t'ne 
 deed used the name "Michael Cum- 
 mings " without the addition of 
 "junior." After tlie execution sale, 
 a deed was executed for the same 
 
KAME OF OWNER. 
 
 133 
 
 by the name by which he is usually called and known 
 although that may not be his true name.^ Where initials 
 are used and they are identical with the initials of the 
 owner, the identity will be presumed ; ® but where initials 
 
 land by the name "Michael Cum- 
 mings, Junior." " Under this state 
 of facts the appellant, claiming to 
 be a bonajide purchaser, insists that 
 the judgment and proceedings there- 
 on against Michael Cummings by 
 name, as they appear of record, were 
 not notice to him of any lien or 
 claim against the real estate of 
 Michael Cummings, Junior. In 
 other words, he insists that junior 
 was an essential part of the name, 
 or essential to a proper designation 
 of the judgment debtor. The point 
 is untenable, for it is too well set- 
 tled to admit of discussion, that the 
 addition, junior, forms no part of a 
 man's name." Bidwell w. Coleman, 
 11 Minn. 86. 
 
 2 An assessment was made to Hen- 
 ry D. Van Voorhis, while his real 
 name was William Henry Van Vor- 
 liis. He was known in the town as 
 Henry Van Voorhis, and was the 
 I^erson intended to be charged with 
 the tax. His name had appeared on 
 the tax-roll the previous year as 
 Henry D. Van Voorhis. The asses- 
 sor knew him by the name Henry 
 Van Voorhis, and the party himself 
 admitted that he was more fre- 
 quently called Henry than William 
 Henry Van Voorhis. The statute 
 under which the assessment was 
 made, required the assessors "by 
 diligent inquiry (within certain 
 dates), to ascertain the names of 
 all the taxable inhabitants in their 
 respective towns or wards, and also 
 all the taxable property real or per- 
 sonal within the same," and from 
 these they are to prepare the assess- 
 ment iolls in the manner prescribed 
 by statute. In construing this pro- 
 
 vision as to names, the conTt say: 
 "It is evident that the law cannot 
 be executed as to the names of per- 
 sons charged, with the same preci- 
 sion and exactness formerly observed 
 in regard to the names of persons 
 made parties defendants in actions 
 at law. . . . The statute provides no 
 other means than the diligence and 
 inquiries of the assessors to ascer- 
 tain the real names of the tax- 
 payers ; and if an error is made it is 
 fatal to the recovery of the tax. 
 Keasonable certainty then is all that 
 can or should be required. If the 
 party defendant was as well known 
 by the name given In the declara- 
 tion as by baptismal name, that was 
 regarded as a good replication to a 
 plea of misnomer in abatement. 
 And so in the assessment of the tax 
 in question ; if the plaintiff was 
 known by the name of Henry Van 
 Voorhis, that was suiHcient justifi- 
 cation for charging him with the 
 payment of his share of the public 
 taxes, by that name ... In respect 
 to the letter D, between the words 
 Heniy and Van Voorhis upon the 
 tax-roll, it is to be regarded as sur- 
 plusage upon the well known rule 
 that the law recognizes but one 
 Christian name. Van Voorhis ». 
 Bud<J, 39 Barb. (N. Y.) 480. 
 
 The court mentioned the fact, as 
 of some importance, that " there 
 was no proof offered upon the trial 
 to show that there was any other 
 person in the town of Fishkill known 
 by the name of Henry Van Voorhis 
 or Henry D. Van Voorhis, to whom 
 the charge might have been re- 
 ferred." 
 
 ^ " Prima facie the W. J. Douglas 
 
134 
 
 THE LA"W OF ASSESSMENTS. 
 
 are used in the assessment which are not the initials of the 
 owner, the assessinent is invalid.* Both the christian and 
 surname must be given. An assessment to the surname, 
 leaving a blank for the christian or given name is not suffi- 
 cient.^ But it is no more necessary in an assessment than 
 
 named in the answer was the W. 
 J. Douglas, who was the plaintiff 
 in this action. The identity of 
 the parties will be presumed from 
 the identity of names." Douglas 
 V. Dakin, 46 Cal. 51. See also as 
 to identity of sound and original 
 derivation of surname, the case of 
 Wilkerson o. The State, 9 Mo. 92. 
 A notice addressed " To J. C. Cleve- 
 land & Unknown Owners," was 
 held to be a good notice to "Jeff 
 C. Cleveland." Stoddard v. Sloan, 
 22 N. W. Kep. 925 (Iowa). See also 
 Ferguson i). Smith, 10 Kan. 396. 
 
 * Where an assessment was made 
 of property owned by S. B. Whipple 
 to S. M. Whipple, and suit was 
 brought to obtain judgment and en- 
 force payment of the tax, and it 
 was found by the court " that no 
 assessment of the property men- 
 tioned in the complaint was ever 
 made against 8. B. Whipple, but 
 the same was made against 8. M. 
 Whipple, and that the true name of 
 llie defendant is Stephen B. Whip- 
 ple, generally written 'S. B. Whip- 
 ple,' by which last mentioned name 
 he has always been known and 
 called and by no other," it was de- 
 cided that this was in effect a finding 
 that the property was never assessed 
 to the defendant at all. Continu- 
 ing the court say: "The statute 
 requires that the assessor shall ascer- 
 tain the names of every person own- 
 ing property or having it in his pos- 
 session or control, and shall list and 
 assess it to such person. It is not 
 doubted that the statute would be 
 satisfied in this respect by listing 
 the property in the true name of the 
 
 owner, or in any name by which he 
 is habitually known or accustome.l 
 to be designated, as was done in the 
 case principally relied upon" (Van 
 Voorhis v. Budd, supra). ..." But 
 to list the property in a name which 
 is neither the real name of the de- 
 fendant, nor one by which he had at 
 any time been known, is equivalent 
 to omitting the name altogether, 
 since in either case there is abso- 
 lutely no designation of the defen- 
 dant as the person intended." Peo- 
 ple V. Whipple, 47 Cal. 591. 
 ' Where the assessment was made 
 
 to Schmidt, omitting the 
 
 christian or given name, and Caro- 
 line Schmidt was the owner of the 
 property it was held not to be a 
 compliance with the statute which 
 required the property to be " as- 
 sessed in his, her or their names, 
 and if unknown to the assessor the 
 property shall he assessed to un- 
 known owners." The court saf: 
 "In this case the assessment was 
 not, and does not purport to have 
 been made, to unknown owners. 
 It cannot, therefore, be assumed 
 that the name of the owner was un- 
 known to. the assessor. But instead 
 of assessing the property to Caroline 
 Schmidt, who was the owner, he 
 
 assessed it to • Schmidt, a 
 
 designation which would have ap- 
 plied as well to any other Schmidt, 
 ■whether male or female, as to the 
 real owner." Crawford v. Schmidt, 
 47 Cal. 618. The facts in this case 
 are very similar to the case of Tyler 
 V. Inhabitants (6 Met. 473, see n. 1, 
 §61), but the assessment was made 
 prior to tbe adoption of the section 
 
NAME OF OWNER. 
 
 135 
 
 in any other legal proceeding, to use a " middle " name ; in 
 other words the rule of law that only one christian or given 
 name is recognized, applies to tax proceedings generally.^ 
 
 The assessment must be made to a living person. A list- 
 ing to a deceased person imposes no legal obligation upon 
 the owner of the land, and creates no lien upon the property 
 notwithstanding the person to whose name the assessment is 
 made, in his lifetime and at the time of his death was the 
 owner of the land.^^ It is a legitimate exercise of legisla- 
 
 of the Political Code of California 
 (§ 3807) providing against misno- 
 mers, omissions and mistakes in tlie 
 making of assessments. Tlie stat- 
 ute under which the assessment in 
 this case was made (1861, p. 423) 
 required assessments to be made to 
 the owner if known, and if un- 
 known to the assessor "to unknown 
 owners," and the court held that 
 this provision of the statute was 
 imperative. 
 
 *" Where the plaintiff sued in the 
 name of Kannie W. Stewart and 
 the tax certificates run in the name 
 of Nannie Stewart, the coui-t used 
 the following language : " The ob- 
 jection that the certificates run to 
 Nannie Stewart, and not to Nannie 
 W. Stewart, the name by which the 
 plaintiff sues, is disposed of by the 
 familiar rule that the law does not, 
 except perhaps in special circum- 
 stances such as do not appear in this 
 case, recognize a middle name or its 
 initial as a necessary part of a per- 
 son's legal name." Stewart v. Car- 
 ter, 18 N. W. Kep. 99. (Minn.) 
 
 6 Where the assessment was made 
 to "Sharp 19, 76," and the facts 
 were that Mrs. Mary Sharp had 
 once owned the land but had died 
 two years before, it was held that 
 the assessment was neither a charge 
 on the land, nor a debt or duty upon 
 the owners. Sharp v. Spier, 4 Hill 
 90. 
 
 'In Conlin v. Seaman (22 Cal. 
 
 546), a street assessment was made 
 to Lucas Turner & Co. while de- 
 fendant was owner of the land. The 
 statute provided that in case of prop- 
 erty leased, " the possession of the 
 tenant or lessee holding or occupying 
 under him shall be deemed to be the 
 possession of such owner, so that 
 such owner shall in such case be 
 deemed to be in possession by his 
 tenant," and in an action to enforce 
 the assessment against the owner 
 the court held the assessment valid. 
 But in the same court where the as- 
 sessment was made to a deceased 
 person, who at the time of his death 
 was the owner, but who had died 
 over two years previously, and the 
 statute required the assessment to be 
 made to "the name of the owner of 
 each lot or portion of a lot, (if known 
 to the superintendent,) if unknown 
 the word ' unknown ' shall be writ- 
 ten opposite the number of the lot, 
 and the amount assessed thereon;" 
 it was held that the assessment was 
 invalid and could not be enforced. 
 Smith V. Davis, 30 Cal. 537. To the 
 same effect is the case of Cruger 
 V. Dougherty, 43 N. Y. 116-119. In 
 this case an assessment was made 
 under a statute making it the duty 
 of the assessors "to ascertain the 
 amount of rents reserved in any 
 leases in fee, or for one or more lives, 
 or for a term of years exceeding 
 twenty-one years, and chargeable 
 upon lands within such town or 
 
136 
 
 THE LAW OF ASSESSMENTS. 
 
 tive power to provide for the assessment of the real estate 
 of the heirs of a deceased person, pending the settlement 
 
 ■ward, which rents shall be assessed 
 to the person or persons entitled to 
 receive the same, as personal estate, 
 which it is hereby declared to be, 
 for the purpose of taxation under 
 this act," and the assessment was 
 made in the following form : 
 
 "The Kortright patent, John 
 Kortright and others legal heirs of 
 John Kortright, late of the city of 
 Kew York, deceased or their heirs 
 or assigns, for rent reserved in the 
 town of Kortright, in the county of 
 Delaware, subject to taxation, esti- 
 mated at a principal sum, which at 
 a legal rate of interest will produce 
 an income equal in amount to such 
 rents $26,195, $632.41 personal." 
 The court, in passing on the validity 
 of the assessment, said : " The first 
 objection to these taxes is that the 
 :issessors have not 'assessed them 
 upon the person or persons entitled 
 to receive them,' as they are re- 
 quired to do by the statute. The 
 assessment must be made upon the 
 person, ' in the same manner and to 
 the same extent as any personal 
 estate of the inhabitants of such 
 town.' . . . Where the assessment 
 of a tax for land was made against 
 a person neither 'owner or occu- 
 pant of the land as required by the 
 statute, the assessment has been 
 held to be absolutely void. (Whit- 
 ney V. Thomas, 2-3 N. T. 284.) This 
 it must be remembered is an assess- 
 ment for personal property against 
 these parties. Is the statement here 
 any better than if none had been 
 made as to the names of the persons 
 assessed ? Only one person is named 
 in the assessment roll, ' John Kort- 
 right,' and he had been dead for five 
 years before this assessment had 
 been made. He was the son of John 
 Kortright, once owner of the patent. 
 
 who died in 1810. It cannot be pre- 
 tended that it was sufficient to name 
 him who had been dead five years. 
 The other designations are mere 
 alternative classes — ' other legal 
 heirs of John Kortright, deceased, 
 or their heirs or assigns.' " It will 
 be observed that some struss is laid 
 on the provision that under this 
 statute the assessment is made a 
 personal liability and not a lien upon 
 the property; but almost without 
 exception the rule is the same when 
 made a lien upon the pi-operty as- 
 sessed. In the case of Smith v. 
 Davis (supra) the tax consisted of a 
 street assessment which created only 
 a charge against the property. But 
 in the case of Wheeler v. Anthony, 
 (10 Wend. 346-349), the assessment 
 of a school district tax was assessed 
 in the following words : " The widow 
 and heirs of Zopher S. Wheeler, de- 
 ceased," and opposite thereto was 
 an amount of realty set down at 
 $2,000, and a tax of $14, and upon 
 non-payment of this tax a warrant 
 was issued and levied upon per- 
 sonal property belonging to one of 
 the heirs at law of Zopher S. 
 Wheeler, deceased, which was sold. 
 The action was trespass against the 
 officer, who justified under this as- 
 sessment, and under instructions 
 that this was a sufficient designation 
 of the plalntiiT, a verdict was ren- 
 dered for the defendant. This rul- 
 ing was sustained in the Supreme 
 Court. The court conceded that 
 when property was owned by a 
 single individual it was proper and 
 necessary that the name of such 
 individual should be inserted in the 
 tax bill; " but when a farm is owned 
 or possessed by a mercantile or other 
 firm, the assessment to such firm 
 would answer the same purpose as 
 
NAME OF OWNER. 
 
 137 
 
 of the estate and before partition is made, by listing such 
 real property to the heirs without naming them or to the 
 
 writing out the christian and sur- 
 name of each individual composing 
 tliefirm; it designates the property- 
 taxed and the persons whose prop- 
 erty the collector may take to levy 
 the tax. So, too, the widow and 
 heirs of a deceased person, when 
 the property is possessed hy the 
 widow and family of the deceased, 
 seems to be a designation with rea- 
 sonable certainty of the property 
 which the officer may take. It was 
 in evidence before the court that the 
 property taken belonged to the per- 
 sons assessed or the jury were not 
 justified in their verdict. A statute 
 relaxing the rule was also relied on. 
 While this case has never been ex- 
 pressly overruled, a contrary doc- 
 trine was announced in Cruger v. 
 Dougherty [ante], except in the one 
 case, real property, while in the other 
 personal property was the subject of 
 the assessment. In the case of 
 Noble V. Indianapolis, (16 Ind. 506,) 
 the question was the validity of an 
 assessment to Noah Noble's heirs, 
 and the sale was sought to be en- 
 joined on the ground of the illegality 
 of the assessment, but the injunc- 
 tion was denied; so that the ques- 
 tion was not fairly met by this 
 decision. Courts frequently deny 
 an injunction to enjoin a sale, when, 
 under the same state of facts the 
 assessment or other proceeding 
 would be held invalid in proceedings 
 to enforce payment of the taxes. Be- 
 sides in Indiana a statute in force at 
 the time, provided that "the sale of 
 land for taxes shall not be invalid 
 on account of such lands having 
 been listed or charged on the dupli- 
 cate in any other name than that of 
 the rightful owner." (8 State ex rel. 
 17. Williston , 20 Wis. 228. ) By virtue 
 of this statute assessments to a 
 
 wrong name are made valid against 
 tlie land, and a personal obligation 
 enforceable against the owner's per- 
 sonal property. Milliken v. Beeves, 
 71 Ind. 281. See also Siltz «. .In- 
 dianapolis, 81 Ind. 582. 
 
 The case of the State v. Collector 
 of Jersey City, 4 Zabriskie K. 108, 
 is cited as authority for the validity 
 of assessments made to a deceased 
 person or to their estate. The deci- 
 sion was made upon the prosecution 
 of a writ of certiorati to set aside 
 the assessments made for a city tax 
 of about 3000 lots to " Estate of J. 
 B. Coles" — some being to "Estate 
 of Coles." It appeared that tlie 
 same property had for several years 
 been assessed the same way, and the 
 taxes paid without objections; fur- 
 tlier, that it had been customary in 
 different parts of that state, where 
 the land was untenanted and the pre- 
 cise owners unknown, to assess the 
 tax to the heirs of the last known 
 owner, and sometimes to the estate 
 of such person ; also that at the time 
 the assessment was made no form of 
 assessment had been prescribed by 
 law; and also that a statute of that 
 state existed (Statutes of 1852, 
 p. 527), which provided that no re- 
 turn of taxes or list of delinquents 
 should be set aside or reversed on 
 certiorari, or otherwise, for any lack 
 of form which did not impair the 
 substantial rights of the plaintiff in 
 the certiorari. The suit involved a 
 valuation of $1,000,000, upon which 
 the tax assessed amounted to 
 $4,673.92. The court say; the ar- 
 gument most relied on to show this 
 assessment to be illegal was, that 
 unless some person is named the 
 provisions of the charter and the 
 general tax laws cannot be carried 
 out. The state laws for the coUec- 
 
138 
 
 THE LAW OF ASSESSMENTS. 
 
 estate of the deceased J* Where a husband and wife own 
 adjoining tracts, and the assessor is informed of the fact 
 and the lines of each tract are pointed out to him and he is 
 requested to make the assessment to each separately, he can- 
 not make a valid assessment of the whole to the husband, 
 the statute requiring the assessment to be made to the 
 owner if known? Where the statute requires the assessment 
 of real estate to be made to the owner or occupant if known, 
 otherwise to unknown owners, and the land is unoccupied, 
 it is the duty of the assessor to make inquiry as to own- 
 ership and if unable to ascertain the name of the owner he 
 may make the assessment to unknown owners, but an assess- 
 
 tion of taxes provided that if tlie 
 tax be not paid a warrant may be 
 issued authorizing the levy and sale 
 of the goods and chattels of the de- 
 linquent, and for want thereof the 
 seizure of his body and delivery 
 thereof to the sheriff or his jailer, 
 to be kept in safe and close custody 
 until payment be made of the tax, 
 with costs. In passing upon this 
 argument for the writ, the court 
 say: " It does not follow, however, 
 that we are bound to set aside the 
 assessment as wholly illegal and void 
 because it may happen that some of 
 the means authorized to be used for 
 collecting the tax cannot be made 
 effectual. In the cases of assess- 
 ments against corporate bodies, this 
 provision is not applicable, and it 
 may be that no delinquent can be 
 taken to jail unless his proper name 
 is inserted in the tax list and war- 
 rant. The substantial rights of the 
 prosecutors of this certiorari I am 
 satisfied have not been and will not 
 be impaired by the lack of form in 
 naming them. If they cannot be 
 imprisoned, or even if no good title 
 can be made for their land, should it 
 be sold, they will not be injured." 
 And after referring to the statute of 
 1852, previously noticed, the court 
 add: "Without meaning to be un- 
 
 derstood that the mode of assess- 
 ment adopted in this case is strictly 
 correct, or to intimate any opinion 
 in regard to future proceedings 
 which may be taken to collect the 
 tax, I am of opinion that the assess- 
 ment ouglit not to be set aside on 
 account of the lack of form in 
 naming the person assessed." 
 
 From these extracts and the state- 
 ment of facts, and the statute pro- 
 viding against setting aside assess- 
 ments for taxes lacking form which 
 did not impair any substantial right 
 of the owner of the property as- 
 sessed, it will be seen that this case 
 is of but little support to the doc- 
 trine that an assessment to the name 
 of a deceased person or his heirs is 
 valid. 
 
 '" An assessment was made in 
 Michigan to "Dickison Estate," 
 and it was objected that it was in- 
 valid because not made to the heirs 
 by name. The statute, at the time 
 the assessment was made, permitted 
 assessments to be made to the heirs 
 or devisees without naming them, 
 and it was held that this was in legal 
 effect assessing the land to the un- 
 named heirs. Dickison ». Reynolds, 
 12 N. W. Rep. 25 (Mich.) 
 
 8 State ex rel. v. Williston, 20 
 Wis. 228. 
 
KAME OF OWNEE. 
 
 1S9 
 
 ment to a former owner would be invalid.' An assessment 
 to a wrong name is invalid.^" The foregoing however, must 
 be understood as the rules which govern, in the absence of 
 a statute providing otherwise. The legislature may provide 
 that an assessment to a wrong name or owner shall not 
 invalidate the assessment ; and may provide fbr making as- 
 sessments in any other or different mode. 
 
 Sec. 61. lasting as to names — controlled by statute — The 
 requirement, that property must be assesssed to the owner, 
 when known, may be controlled by statute. We have 
 already seen that an assessment to the owner by his sur- 
 name, leaving a blank for the christian or given name, 
 where it is necessary to make the assessment to the owner, 
 if known is invalid. But it is competent for the legislature 
 to provide for errors, mistakes or omissions as to the name 
 of the owner of property assessed for taxation.^ Errors, 
 
 'Desmond v. Babbitt, 117 Mass. 
 234; Abbott v. Lindenbower, 42 Mo. 
 167-8. 
 
 1° Hume ». Wainscott, 46 Mo. 145. 
 See also Whitney v. Thomas, 23 N. 
 Y. 285. 
 
 1 In Callfomla, section 3807 of the 
 Political Code reads as follows : 
 " When land is sold for taxes cor- 
 rectly imposed, as the property of a 
 particular person, no misnomer of 
 the owner, or supposed owner, or 
 other mistake relating to the owner- 
 ship thereof, affects the sale, or 
 renders it void or voidable." No 
 decision construing this provision 
 has attracted the author's' atten- 
 tion. In Massachusetts a similar 
 provision exists, in the following 
 language: "If, in the Assessors' 
 list, or in their warrant and list com- 
 mitted to the collectors, there shall 
 be any error in the name of any per- 
 son taxed, the tax assessed to him 
 may, notwithstanding such error, be 
 collected of the person intended to 
 be taxed, provided he is taxable, and 
 can be identified by the Assessors." 
 Under this statute an assessment 
 
 was made to Tyler, and the 
 
 collectors demanded the tax from 
 Isaac Tyler, who paid it under pro- 
 test, and sued to recover back the 
 money. The court used the foUov;- 
 ing language in construing this stat- 
 ute: "The statute is plain and 
 explicit, and covers all cases of er- 
 ror in the name, and was intended, 
 we think, to apply to a case where 
 the name is mistaken by omitting, 
 as well as by adding or misnaming. 
 The only things required are, that 
 the person shall be liable to taxa- 
 tion, and be in fact the person in- 
 tended to be taxed under such 
 designation. These facts must of 
 necessity be proved by evidence 
 aliunde. The fact of the identity 
 of the party, and the intention of 
 the Assessors must, in general, be 
 proved by them." Tyler v. Inhabi- 
 tants, 6 Met. 473. In Illinois, the 
 statute provided that " no error or 
 informality in the proceedings of any 
 of the officers connected with the 
 assessment, levying or collecting of 
 the taxes, not affecting substantial 
 justice of the tax itself, shall vitiate 
 
140 
 
 THE LAW OF ASSESSMENTS. 
 
 mistakes or omissions as to the name of the owner, except 
 so far as already shown, will be fatal to the assessment un- 
 less shielded by statute. Under authority of a statute, an 
 assessment may be made to the heirs of a deceased person, 
 without specially naming them.^ Where the statute autho- 
 rizes the assessment of property to the "person, firm, cor- 
 poration, association, or company owning it, or having the 
 possession, charge or control of it, and to all owners and 
 claimants known or unknown," and the assessment is made, 
 under this statute, to names of persons who are not the 
 owners, but the words, " and to all claimants and owners, 
 known or unknown," are added, the real owners are bound 
 by the assessment unless the assessor had personal knowl- 
 edge of the name of the owner.^ It is within the province 
 
 or in any manner affect the tax or 
 the assessment thereof." A firm was 
 assessed by the name of "C. M. 
 .Jacques & Co.," whereas the firm 
 name was " Jacques Bros. & Co." 
 It appeared in evidence that the firm 
 used both these styles, and also the 
 style "J. M. Jacques & Co." In 
 view of the statute and of the fact 
 of the firm having used the style in 
 which the assessment was made, the 
 court ruled that the tax was "just 
 
 an assessment was made to " Dick- 
 inson Estate," Justice Coolby held 
 the assessment valid, using the fol- 
 lowing language : " The estate was 
 at the time undivided, and the stat- 
 ute (Com. L. S. 976), permitted lands 
 to be assessed to the heirs or de- 
 visees without naming them. As- 
 sessing it to the estate was in legal 
 effect assessing it to unnamed heirs." 
 Dickinsons. Keynolds, 48 Mich. 161. 
 8 An assessment was made, under 
 
 against the complainants, and mak- . the statutory provisions quoted, to 
 
 i iig the assessment to them by the 
 name of C. M. Jacques & Co., in- 
 stead of Jacques Bros. & Co., cre- 
 ates no doubt that complainants 
 were the persons intended, and is 
 not a thing that affects the substan- 
 
 Joaquin Castro and wife "and all 
 claimants and owners known or un- 
 known" when the facts were that 
 the property had belonged to the 
 wife of Castro, but that she and her 
 husband had conveyed It to an in- 
 
 tial justice of the tax itself, and at fant daughter, who held it at the 
 
 most is but an error in the assess- 
 ment of such kind that, under the 
 ]iro vision of the statute above quoted, 
 does not vitiate or affect the tax or 
 assessment, and is no ground for 
 equitable interference with the col- 
 lection of the tax." Lyle v. Jacques, 
 101 111. 648. 
 
 -A statute of Michigan authorized 
 the assessment of real estate to be 
 made to the heirs of a deceased per- 
 son without naming them. Where 
 
 time of fhe assessment. It was ob- 
 jected to this assessment that it 
 should have been made to the 
 owner or to the defendants who 
 were at the time in possession of 
 the property, and that listing to Cas- 
 tro and wife was fatal to the assess- 
 ment ; but the court said — ' ' The posi- 
 tion ignores that portion of the as- 
 sessment relating to ' claimants and 
 owners known, and unknown,' and 
 continuing, the court say •' this view 
 
NAME OF OWNER. 
 
 141 
 
 of a state legislature to adopt any policy or system for the 
 collection of its revenue, wliich its wisdom may determine 
 to be most expedient or best suited to its condition, limited 
 only by its own organic law. It may enact that land 
 within the state shall stand chargeable with the taxes levied 
 for the support of the government, irrespective of the name 
 
 is in conflict -with what we under- 
 stand to be the meaning of the act, 
 and we think that counsel has mis- 
 taken the purport and object of the 
 provision referred to. The words 
 ' and to all owners and claimants 
 known or unknown,' were Intended 
 to be Incorporated in every assess- 
 ment : and their effect is to bind the 
 property irrespective of the owner- 
 ship or possession. The assessment 
 is required to be made to the owner 
 or possessor, as against the person 
 assessed; it operates as a judgment, 
 and has the force and effect of an 
 execution upon all property owned 
 by him in the county. It is also to 
 be made to 'owners and claimants 
 known or unknown,' and the inten- 
 tion was that it should be effectual 
 as against the property, regardless of 
 the person, placing it in this respect 
 upon the footing of a proceeding in 
 rem. The counsel reads the act as 
 requiring the assessment to be made 
 to the owner, if known ; or if the 
 owner is unknown, to the person in 
 possession ; or if the possession is va- 
 cant, to the owner as unknown. This 
 clearly is not the proper reading, for 
 the provisions, that it shall be made 
 to owner or person in possession, and 
 to all owners and claimants known 
 or unknown, whether made to the 
 owner himself, or to the person in 
 possession, it is also made to ' owners 
 and claimants, known or unknown,' 
 and the provision as understood by 
 coimsel is inconsistent with itself. 
 . . . The language used is incon- 
 sistent with any other interpretation, 
 for it includes owners and claimants 
 
 that are known, as well as those that 
 are unknown, and the effect upon 
 them was intended to be the same." 
 To guard against a misconception, 
 of the true meaning of the decision, 
 to the effect that an assessment, 
 made to the proper name of the 
 owner the court say: 'If the proper 
 person is assessed no advantage 
 could be derived from assessing him 
 again in a different form, and the 
 assessment would not be affected 
 by a failure to do so. It Is only 
 where a mistake is made in this re- 
 spect, that the general words of 
 the provision are important; and 
 the object in requiring them could 
 only have been to provide a cnre for 
 the mistake, so far as to give validity 
 to the assessment as against the 
 property. We regard the act as cre- 
 ating two remedies — one against the 
 person and the other against the 
 property, each having a distinct and 
 separate existence, and the efficiency 
 of the one,. not depending upon the 
 other. ... It is our duty to con- 
 strue the act in accordance with the 
 intention of its framers, and the ruie 
 of strict construction, so earnestly 
 invoked, would be grossly misap- 
 plied, if used to defeat that inten- 
 tion. In the view we have taken, 
 it is immaterial to whom the prop- 
 erty is assessed ; for an assessment, 
 in the form required, binds the 
 property itself, and is not vitiated 
 by a mistake as to the person. It is 
 true, the act provides that the as- 
 sessor shall make diligent inquiry 
 to ascertain thfe owner, but a mere 
 mistake as to the fact of ownership. 
 
142 
 
 THE LAW OF ASSESSMENTS. 
 
 to which it is assessed or advertised,* and irrespective of the 
 name to which lands may stand charged on the tax roll.^ 
 A state may require that lands sliall be assessed to the pat- 
 entee when the owner is unknown.^ It may also require the 
 property real and personal, to be assessed to the owner, 
 claimant, occupant or person having possession or control 
 thereof "and to all owners and claimants known or un- 
 known." ^ It may require persons having in their posses- 
 is not sufficient to invalidate the as- and divested the title derived through 
 
 sessment. It is possible that a will- 
 ful omission, or even negligence in 
 the performance of the duty en- 
 joined, would render the assessment 
 invalid; but where the assessment 
 is made upon due inquiry and in 
 good faith, a mistake of this char- 
 acter will not affect it. . . . There 
 is no evidence that the assessor was 
 aware of the conveyance, and the 
 presumption is that he did his duty 
 and used a reasonable diligence 
 to ascertain who the owner was: 
 O' Grady v. Barnhisel, 23 Cal. 293. 
 
 *Upon this point Justice Davis 
 spealiing for the Supreme Court of 
 the U. S. used the following lan- 
 guage: "It is not the province of 
 this court to Interfere with the pol- 
 icy of the revenue laws of the states 
 nor with the interpretation given to 
 them by their courts. Arkansas 
 has the right to determine the man- 
 ner of levying and collecting taxes, 
 and can declare that the particular 
 tract of land shall be chargeable 
 with the taxes, no matter who is the 
 owner or in whose name it is assessed 
 and advertised, and that an erroneous 
 assessment does not vitiate a sale for 
 taxes. Of course the property un- 
 der the compact must be taxable, 
 but if it is, the mode of enforcing 
 taxes is wholly within legislative 
 control. If therefore, the lands in 
 dispute could be taxed, the decision 
 of the Supreme Court of the state 
 is conclusive that the assessment, 
 sale, and confirmation were regular 
 
 the heirs of Harrell. Witherspoon v. 
 Duncan, 4 Wall. 217. See ante, 
 note 1 § 61. 
 
 ^A statute providing that "no 
 sale of any lands or town lots for 
 the non-payment of taxes shall be 
 considered invalid on account of its 
 having been charged on the tax book 
 in any other name than that of the 
 rightful owner, if such land or lot 
 be in other respects sufficiently de- 
 scribed in the tax book, and the 
 taxes for which the same is sold, be 
 due and unpaid at the time of such 
 sale" was held to be valid. Merrick 
 V. Hutt, 15 Ark. 3.S9. 
 
 8 In Texas the statute requires the 
 land to be assessed to the patentee 
 when the owner is unknown, and it 
 is there held, that any other mode 
 of assessment when the owner is 
 unknown is invalid. Yenda v. 
 Wheeler, 9 Texas 408. 
 
 'Session Laws Cal. 1859, p. 327. 
 Under this statute an assessment 
 was made to " Home Insurance Com- 
 pany, Bigelow Brothers, Agents." 
 The Home Insurance Company was 
 a foreign corporation and Bigelow 
 Brothers were its resident agents. 
 Foreign Insurance Companies under 
 the law of the state were required 
 to deposit bonds with the State 
 Controller, as security for the pay- 
 ment of their policies when losses 
 were sustained by holders thereof, 
 and these bonds were assessed in the 
 manner stated. It was objected, 
 among other things to this assess- 
 
NAME OP OWNEE. 
 
 143 
 
 sion personal property belonging to others to disclose the 
 names of the owners and give a description of the property, 
 and on failure or refusal, make the persons so refusing liable 
 to an assessment therefor, to be made as in case of a re- 
 fusal to furnish a list.^ It must be borne in mind however, 
 that to be binding upon the owner, assessments must be 
 made, as to the name listed, in the mode provided by 
 statute. Where, therefore the' statute provides that " No 
 mistake in the name of the owner, or supposed owner of 
 real property shall render the assessment thereof invalid," 
 while an error in the name of the owner will not render 
 an assessment of real property invalid such error as to any 
 personal property included therein, will, as to personal 
 property be void.^ It is competent for the legislature to 
 
 inent, that if the bonds were assess- 
 ble at all, the assessment should have 
 been to the agents, or to Wells, 
 Fargo & Co., who were, by consent 
 of the state controller, the special 
 custodians of the bonds assessed, 
 and that it was error to make the 
 assessment to the corporation, but 
 the court held that there was no 
 good reason for not assessing the 
 property to the non-resident owner 
 when known, and that the assess- 
 ment was valid as made, under a 
 provision of the statute, allowing 
 the assessment to be made to all 
 owners and claimants, and another 
 provision in the following language : 
 " and that no error in regard to such 
 owner, or claimant, shall in any way 
 affect the validity of such assess- 
 ment." People V. Home Insurance 
 Co., 29 Cal. 536. 
 
 * A warehouseman, on demand of 
 the assessor, must furnish to the 
 assessor the names of owners of 
 property in his possession together 
 with a description of the property; 
 and if he fall, or refuse, it is the 
 duty of the assessor to note the fact 
 opposite to his name and assess the 
 property to the warehouseman ac- 
 cording to his best Information. 
 Bode V. Holtz, 3 Pac. Kep. 495 (Cal.) 
 
 "An assessment was made to 
 "Sulphur Banks Q. S. M. Co., of 
 both real and personal property. 
 Sec. 3628 P. C. of California pro- 
 vides that "N"o mistake in the name 
 of the owner or supposed owner of 
 real property, shall render the as- 
 sessment thereof invalid." In a suit 
 to enforce payment of the taxes 
 where the defense was that the prop- 
 erty was not listed to the defendant, 
 that the name of the defendant was 
 Sulphur Banks Quicksilver Mining 
 Company, the court held that "If 
 the defendant is not the owner of 
 the property, it had full opportunity 
 to establish that fact, but that it is 
 not a defense to the payment of the 
 taxes upon the real estate that the 
 assessor mistook the name of the 
 owner of it. Section 3628 of the 
 Political Code, however, only de- 
 clares that a mistake in the name of 
 the owner of real property shall not 
 avoid the tax. A portion of the 
 taxes here sued for is upon personal 
 property. We have further to in- 
 quire, therefore, whether the assess- 
 ment of the personal property is 
 invalid. Unless we can take judicial 
 notice that 'Sulphur Banks Q. S. M. 
 Co.' is the equivalent or abbrevia- 
 tion of ' Sulphur Banks Quicksilver 
 
144 
 
 THE LAW OF ASSESSMEXTS. 
 
 enact that the listing of real estate to a wrong name shall 
 not invalidate the assessment nor affect the title of a pur- 
 chaser at a tax sale.^" But words used as a name which are 
 not the name of any person or coi'poration will not, under 
 such statutory provision constitute a valid assessment.^! 
 
 Sec. 62. Assessments to be made to owner by his proper 
 name. — Rules as to Corporations. — The name of a corporation 
 is compared to the baptismal or given name of a natural 
 person. Where the corporation is created by the King's 
 grant, it is said the king baptizes it with its name, and 
 while a natural person, in law, is recognized by only one 
 name, made up of a single word, corporations' names are 
 usually constituted of several, more or less descriptive 
 words. In the name of a natural person, the alteration or 
 omission of a single letter may make a material change, 
 while in the case of a corporation the transposition or omis- 
 
 Mining Company,' or unless there 
 was evidence tending to prove tliat 
 til e corporation defendant was known 
 by the name ' Sulphur Banks Q. S. 
 M. Co.' the assessment of the per- 
 sonal property cannot be upheld," 
 and the court hold that " an assess- 
 ment of personal property to a 
 named person other than the owner 
 is absolutely void." Lake County 
 1). Sulphur Banks Mining Company, 
 4 W. C. R. 187 (Cal.) In this opin- 
 ion the learned judge recognized, as 
 law, the ruling in the People v. 
 Sierra Buttes Q. M. Co. (n. 2, §61) 
 in the following language: " If the 
 case showed that the defendant had 
 been usually known, or was even 
 sometimes called 'Sulphur Banks 
 Q. S. M. Co.,' it may be conceded, 
 for the purposes of this decision, 
 that the assessment of the personal 
 property to defendant would be good. 
 See People v. Sierra Buttes Q. S. M. 
 Co., 39 Cal. 514. But in the trans- 
 cript before us there is no evidence 
 that defendant was called, or called 
 itself by that name. It is plain we 
 cannot identify the name to which 
 
 the personal property was assessed 
 as an abbreviation of the name of 
 defendant even if an assessment to 
 an abbreviation would be valid." 
 
 ^^ Where the statute read in these 
 words: "The sale of lands for 
 taxes shall not be invalid on account 
 of such lands having been listed or 
 charged on the duplicate in any 
 other name than that of the rightful 
 owner," it was held that the pur- 
 chaser at a tax sale took a good title 
 as against the true owner when the 
 land had not been listed to sucli 
 owner but in the name of one not 
 the owner. Cooper v. Jackson, 71 
 Ind. 248; see also Evans ». Schafer, 
 88 Ind. 92. 
 
 '1 Where the statute provided that, 
 notwithstanding any mistake in the 
 name or names, or omission to name 
 the real owner the assessment should 
 be valid, and the assessment was 
 made as follows : ' ' Delaware Rolling 
 Mill;" and it was admitted that 
 there was no corporation having the 
 name of Delaware Rolling Mill, or 
 any other name which owned or 
 possessed the property on the 20th 
 
NAME OF OWEER. 
 
 145 
 
 sion of some of the words comprising its name, or the inter- 
 polation of a word may not make anj-^ essential change in 
 its name. The rule requiring certainty in using the name 
 of a natural person, is not applied with the same degree of 
 strictness, in the use of the name of a corporation. The 
 lule has been stated to be, that in " grants and convey- 
 ances the name must be the same in substance, as the true 
 name ; but need not be the same in words and syllables."^ 
 There is no reason why this rule should not be applied to 
 assessments.^ Where the name used is variant from the 
 
 day of May, or between that time 
 and the 20th day of August, 1806, 
 the court held, as to these provisions 
 of the statute, that it did not " go 
 tlie length of declaring that an 
 entire omission of any owner's 
 name shall not invalidate, nor is such 
 tlie proper meaning of the phrase, 
 ' omission to name the real owner.' 
 If the name of the owner is mis- 
 taken, or a wrong owner is substi- 
 tuted for the real owner, in good 
 faith, the assessment is good; but 
 the law imperatively requires an as- 
 sessment in the name of the owner. 
 Nor is the distinction without a dif- 
 ference. It is tlie intention of the 
 law that the person or persons who 
 owned the real estate on the day 
 when by law the assessment is to 
 commence, shall be made personally 
 responsible for the tax, and the 
 omission to make a bona flde at- 
 tempt to do this, impairs the sub- 
 stantial rights of the plaintiffs in 
 certiorari, and entitles them to have 
 this tax set aside." State — Acker- 
 man V. Town of Bergen, 33 N. J. 
 L. 39. 
 
 'Ang. & Am. Cor. § 99. New- 
 port Mechanics Man. Co. v. Spir- 
 bird, 10 N. H. 123. 
 
 2 The Sierra Buttes Quartz Mining 
 Company, having its principal office 
 in San Francisco, owned a mine and 
 ■was carrying on mining in Sierra 
 County. The assessor went upon 
 10 
 
 the premises and made particular 
 inquiries of the superintendent in 
 charge, for the name of the corpo- 
 ration and was informed, both by 
 the superintendent and book-keeper 
 of the corporation, tliat the name 
 ■was the " Sierra Buttes Quartz Com- 
 pany," and used that name in the 
 assessment. The true name wan 
 the "Sierra Buttes Quartz Mining 
 C;ompany." In a suit brought to 
 recover the tax, in answer to the 
 objection that the assessment was 
 not made to tlie corporation, the 
 court say: "It is evident that the 
 assessor performed all that the stat- 
 ute enjoins upon him in the way of 
 diligence in ascertaining the name 
 of the defendant as a tax-payer of 
 the county; and where this is done 
 ■we do not think the assessment 
 should be considered a nullity, be- 
 cause of a slight discrepancy in the 
 name — the name given being sufS- 
 ciently accurate to indicate the per- 
 son intendeJ, especially where, as in 
 this case, the error was occasioned 
 by the representation of the agent 
 of the owner, such agent having the 
 actual possession of the property, 
 and therefore being the proper per- 
 son to whom the assessor should 
 apply for the information. It is 
 well settled that the omission of a 
 part of the name of a corporation, 
 when the name consists of several 
 words, if the corporation can be 
 
146 
 
 THE LAW 01? ASSESSMENTS. 
 
 true name but the same in substance, or claimed to be, in 
 any action, suit or proceeding to enforce the assessment, 
 the true name should be used — with an averment of the 
 name as used.' 
 A copartnership that sometimes contracts its firm name, 
 
 fairly within the mischiefs designed 
 to be remedied by sec. 114, ch. 6, R. 
 S. 1871, which provides that no 
 error, mistake or omission by the 
 assessors, collector or treasurer, shall 
 
 identified, will not vitiate a grant 
 made to, or an act done by, such 
 corporation ; much less ought such 
 discrepancy to have fatal effect when 
 the name is to be ascertained by a 
 public officer who relies upon their 
 own representations. People v. 
 Sierra B. Q. M. Co. 39 Cal. 512. In 
 support of this ruling the court cite 
 numerous cases to show that a dis- 
 crepancy in the name of a corpor.i- 
 tion, where it is apparent what cor- 
 poration was intended, will not be 
 fatal in any legal process or proceed- 
 ing. This point was ruled upon in 
 the case of the Farnsworth Com- 
 pany V. Rand, 65 Me. 22. The as- 
 sessment was made by the mistake 
 of the assessor both in the assess- 
 ment, and tax list in the name, 
 " Tlie Farnsworth Manufacturing 
 Company," instead of the true 
 n:ime (Farnsworth Company). " The 
 decision is in the following language: 
 '■ The direct question is. Can the 
 collector justify the taking of the 
 goods and chattels belonging to a 
 corporation, the name of which is 
 incorrectly stated both in the assess- 
 ment and tax list, through the mis- 
 take of the assessors, to pay a tax 
 for which said corporation would 
 have been legally responsible, had 
 its true name appeared upon the 
 assessor's books, and the tax list, 
 committed to the collector ? We 
 think he can; and that proof of 
 such mistake and parol evidence to 
 identify the corporation intended to 
 be taxed, and their property, is com- 
 petent in suits like this, whenever 
 the collector's proceedings are found 
 In other respects justifiable and reg- 
 ular. The mistake in the name is 
 
 render any assessment void, and re- 
 mits the party to his action against 
 the town for any damage he has sus- 
 tained by reason of the mistakes, 
 errors or omissions of said officers. 
 ... If the party is liable to taxa- 
 tion, and is in fact the party whom 
 the assessors intended to tax, it 
 would be manifestly unjust that he 
 should escape taxation for so trivial 
 a cause as an error, mistake or omis- 
 sion in his designation, when his 
 identity with the party designed to 
 be taxed can be established ; and the 
 statute was framed to prevent such 
 a result. Nor is it so absolutely es- 
 sential that .corporations should be 
 described by their true names as to 
 place them, in this respect, on a dif- 
 ferent footing from natural persons. 
 . . . Even in the absence of such a 
 statute for the relief of errors, mis- 
 takes and omissions, the reasoning 
 of more than one highly respectable 
 court goes far to show that neither 
 corporations nor individuals can be 
 allowed to avail themselves of pre- 
 texts of this sort to escape taxation, 
 when their identity and liability to 
 be taxed can be clearly established :' ' 
 citing Sonhegan Nail, Cotton & 
 Woolen Factory v. McConihe, 7 N. 
 H. 309; O'Niel v. The Virginia & 
 Maryland Bridge Co., 18 Md. 3; 
 Van Voorhis v. Budd, 39 Barb. (N. 
 Y.)479. 
 
 * Where a deed is made to a corpo- 
 ration by a name varying from the 
 true name, the plaintiffs may sue in 
 
NAME OP OWNEE. 147 
 
 may be assessed by the name used in the contracted form.* 
 "Where the assessment is made to a surname, leaving a 
 blank space where the christian or given name ought to 
 be or might have been written, the court will not presume 
 that the person's christian or given name was unknown to 
 the assessor, and the assessment will be void for uncertainty.^ 
 Sec. 63. Assessment of individual property to firm — of firm 
 to individual — of vrife's property to husband. — The assessment 
 of personal property belonging to an individual, to a firm 
 name of which he is a member, or to a firm name after 
 dissolution of the firm, is invalid, and cannot be enforced 
 against the individual nor the firm, where the statute 
 requires property to be assessed to the owner, or to un- 
 known owners when the owner is unknown to the assessor.^ 
 An assessment of the wife's land, to the husband, notwith- 
 standing the husband is living on the land with the wife, is 
 invalid.^ But where the statute authorizes tlie assessment 
 of lands to be made to the owner or occupant, and the hus- 
 band is living on a tract of land with his wife, owned b}'- 
 the wife, and the deed therefor to her is of record, the 
 assessor is not bound to take notice of the title beinfj in 
 tlie wife, and in tlie absence of actual knowledge of the 
 
 their true name,- and aver in the in coraphance with the statute requir- 
 
 deelaration " that the defendant ing the assessment to be made to the 
 
 made the deed to them by tlie name owner or occupant. Lane v. Sueces- 
 
 mentioned in the deed." The New sion of March, 3-3 La. An. 557. 
 
 York African Society for Mutual ^ The statute required the assess- 
 
 Eelief v. Variclt, 13 Johns. 38. ment to he made to tlie owner, if 
 
 * A firm whose proper designation known; if not, to unknown owners. 
 
 was Jacques Bros. & Co. sometimes The assessment was made to " 
 
 used tlie words Jacques & Co., and Schmidt," and the court held that 
 
 were assessed by the firm designation it could not be assumed that the 
 
 of Jacques & Co. ; and it was held, name of this owner was unknown : 
 
 the assessment in other respects be- that the name as used would have 
 
 ing regular, that the discrepancy in applied to any other Schmidt, male 
 
 the name did not invalidate the as- or female, as to Caroline Schmidt, 
 
 sessment. Gage v. Bailey, 102 111. the owner. Crawford v. Schmidt, 47 
 
 11. Where an assessment was made Cal. 618. An opposite view is taken 
 
 to the agent of the owner, who was in 6 Met. 473. See ante, § 51, n. 1. 
 
 in possession of and managing the ^ People v. Sneath & Arnold, 28 
 
 property in accordance with a list Cal. 613. 
 
 furnished, in the following form, = Hamilton «.. Fon du Lac, 25 Wi-S. 
 
 "W. S. Calhoun, Agent (succession 496; Thebodaux v. Keller, 29 La. 
 
 M. S. Calhoun"), it was held to be An. 509. 
 
148 
 
 THE LAW OF ASSESSMENTS. 
 
 ■wife's title, may make the assessment to the husband.' An 
 assessment of property held in joint ownership, should be 
 assessed to the joint owners, as a joint assessment.* 
 
 Sec. 64. Assessment of more than is cwned. — When the 
 
 'In Wisconsin, tlie statute re- 
 quired real estate to be assessed in 
 the name of tlie owner or occupant, 
 except ill case of unoccupied lands, 
 where, if the owner is unknown, 
 they may be assessed as such, with- 
 out inserting the name of any per- 
 son. The question of the validity 
 of an assessment made in the name 
 of the husband where the wife was 
 tlie owner, was passed on in tlie case 
 of Massing v. Ames. The deed of 
 the land to the wife was on record, 
 and the court, after noticing this 
 fact and the law requiring the as- 
 sessment of unoccupied lands to be 
 made to the owner or occupant, and 
 the further fact that one lot was oc- 
 cupied by the husband and wife as a 
 homestead, and tliat the otliers were 
 imoccupied, proceeded to say: " As- 
 sessors should undoubtedly use all 
 proper diligence, and avail them- 
 selves of all means of information 
 convenient to ascertain the owner. 
 In case the property is in the actual 
 possession of any one, that is, where 
 ])ersons are residing on it, it is, of 
 course, easy to ascertain the name of 
 the occupants to whom the land may 
 he assessed. But in some cases it is 
 not practicable for assessors to as- 
 certain the true owner with the ex- 
 ercise of diligenQe and the means of 
 informational their command. They 
 have to do the best they can to com- 
 ply with the law. But it would be 
 laying down too strict a rule on the 
 subject to say the assessor was 
 chargeable with notice of the record 
 title, and, if he liappened to make 
 an honest mistake in regard to the 
 real owner, the assessment was void. 
 "Where the assessor knows, or has 
 reliable information as to the real 
 
 owner, he is inexcusable in assessing 
 the property to the wrong party. . . . 
 An assessment under one aggregate 
 vahiation of lots owned by different 
 persons, this court has held was 
 void, and would not sustain a tax. 
 But it is obvious that the principle 
 of these decisions does not apply, 
 there being no pretense that the 
 assessor knew in this case that the 
 property belonged to the plaintiff in- 
 stead of her husband, to whom in 
 fact it was assessed. . . . Did it ap- 
 pear that Mr. Massing informed the 
 assessor, when the assessment was 
 made, that the lots belonged to his 
 wife and not to him, or had it been 
 shown that the assessor knew from 
 other sources of information that 
 the plaintiff owned them, a different 
 rule would apply. . . . And as there is , 
 nothing in the present case to im- 
 peach the good faith of the assessor, 
 or which tends to show that he did 
 not act according to his best infor- 
 mation upon the subject, we are dis- 
 posed to disregard the error." In 
 reply to the objection that one of the 
 lots was occupied by the plaintiff and 
 her husband, the court held, that it 
 was '■ obvious that the husband was 
 as much the occupant of that lot as 
 the plaintiff." In regard to that 
 portion of the lots used and occupied 
 for a pasture — a tobacco lot and a 
 pasture — the court held, that " there 
 was nothing in such possession and 
 occupancy which would tend to prove 
 bad faith on the part of the officer if 
 he happened to assess the property 
 in the name of the wrong person." 
 Massing v. Ames, 37 Wis. 652. 
 
 * An assessment was made to a 
 copartnership on a list furnished, 
 containing both real and personal 
 
NAMB OF OWNER. 
 
 149 
 
 statute requires that lands shall be listed to the owner if 
 known, "if not known, the word unknown " the assessment 
 to a party as owner, must not include land that he does not 
 own. An assessment thus made is not valid for the land 
 owned by the party to whom the assessment is made if the 
 property be valued and taxed in gross, and is of no validity 
 as to the land not owned by the person assessed.^- 
 
 Where the assessment is correct and proper in part as 
 made, and incorrect and invalid in part, and the valuations 
 and taxes of the part which is correct is separated and can 
 be distinguished from the part that is invalid, the assess- 
 ment will be sustained as to the part which is correct.'-' 
 
 Sec. 65. Listing lands for street assessments — ^Name of owner. 
 — In listing lands for street assessments the same principles 
 govern. The provisions of the statute authorizing the as- 
 sessment must be strictly, or at least substantially observed. 
 Where the statute provides that in making an assessment for 
 street improvements the property chargeable therefor, shall 
 property. In a bill filed to restrain no principle upon which such an as- 
 
 the collection of the taxes, one of 
 the grounds relied on was, that the 
 real estate belonging to complainants 
 was assessed to the partnership, but 
 the court disposed of this objection 
 in the following language : "It ap- 
 pears that the land was all handed in 
 on one list with other property be- 
 longing to the firm, and as it is al- 
 leged in the bill, to be held in joint 
 tenancy, there could be no assess- 
 ment of shares in it individually to 
 the owners severally, because their 
 estate as set out is indivisible." 
 Hubbard v. Winsor, 15 Mich. 1.53. 
 
 1 Where the facts were, that lots 
 78 and 76 were assessed to A. Hyatt 
 Smith, who owned lot 70 but never 
 owned lot 78, and they were assessed 
 in gross at $130, the tax was held to 
 be illegal. The court said, speaking 
 of the tax on lot 78: " It was as- 
 sessed with lot 76 when those lots 
 were owned by different persons, and 
 a gross sum or tax of §130 was as- 
 sessed to the two lots. We know of 
 
 sessment and levy of taxes can be 
 sustained. Such a practice of jointly 
 taxing separate lots belonging to dif- 
 ferent individuals strikes at the very 
 foundation and reason of all assess- 
 ment laws." Crane v. Janesville, 20 
 Wis. 306. See Roe v. Williston, 20 
 Id. 228; a.]so post, § 112, n. 1. 
 
 2 " This court has already adopted 
 a very liberal rule for the govern- 
 ment in actions brought to restrain 
 proceedings in the collection of taxes, 
 in holding that where the legal taxes 
 justly chargeable against real estate 
 can be ascertained, and the legal 
 sums can be separated from the ille- 
 gal, equity will require the payment 
 of the former as a condition of relief 
 against the latter. It is impossible 
 to make any application of that rule 
 here, unless the court assumes the 
 power of re-assessing and re-levying 
 taxes, which duty belongs to other 
 officers specially designated and ap- 
 pointed for that purpose." Crane v, 
 Janesville, 20 Wis. 307. 
 
150 
 
 THE LAW OF ASSESSMENTS. 
 
 he listed to the owner if known and if not known to un- 
 known owners, it is not competent to assess the property to 
 both a person as the owner and to owners unknown.' When 
 the title to the land is in dispute, instead of listing it to 
 either or all the claimants, it is proper to assess it to unknown 
 owners ; and this rule "applies to all statutes upon, the sub- 
 ject of taxation, whether for local improvements or public 
 revenue.^ Where there is no personal liability for a local 
 tax, and only a lien on the property benefited is acquired, it 
 becomes more than ordinarily important to get a correct 
 listing as to the name of the owner, as it manifestly appears 
 that when an attempt is made to list the owner, the true 
 name must be correctly given. Unless the statute autho- 
 rizes the assessment to be made to the occupant or party in 
 possession, it can only be made to tlie true owner or to 
 unknown owners.* 
 
 Sec. 66. Assessment to agent— "When.— Where personal 
 property is in the possession and under the control of an 
 agent, who holds it for the owner and subject to his order, 
 
 1 The legal effect of an assessment 
 to one not the owner of the title, 
 under the requirements of a statute, 
 as above quoted, was adjudged and 
 declared in the following language : 
 " If made to the party occupying 
 the premises claiming title, without 
 holding the same in fact or exercis- 
 ing acts of ownership without claim 
 of title, or to a party in possession 
 by his tenant, witliout title in fact, 
 such assessment could only create a 
 lien upon the interest of the party 
 in whose name it was assessed, and 
 on foreclosure of such lien and sale 
 of the premises under decree of fore- 
 closure, no other or greater interest 
 or title would pass to the purchaser 
 than was held by the party in whose 
 name it was assessed ; and the title 
 and interest of the real owner in 
 fee, to whom the property had not 
 been assessed, would not be affected 
 by such proceedings. Himmelman 
 r. Steiner, 38 (Jal. 178-9; see also 
 
 City of Stockton r." Dunham, 59 
 Cal. 108-10. 
 
 2 On this point the Supreme Coiu't 
 of California has given expression 
 in the following language: "The 
 only safe and effectual course to be 
 pursued by the street superintend- 
 ent, in making his assessments, to 
 render the same practically success- 
 ful and efficient as a means of se- 
 curing a valid lien upon the premi- 
 ses liable to assessment, as against 
 the real owner in fee, and thereby 
 enable the party for whose benefit 
 the assessment is made to enforce 
 payment, is to make the assessment 
 in the name of the owner in fee, if 
 known to him, or if, after diligent 
 inquiry, he entertains a rational 
 doubt as to the name of the party 
 in whom the legal interest is vested, 
 to assess the same to owner — ' un- 
 known.' " Himmelman «. Steiner, 
 ante. 
 
NAME OP OWNER. 
 
 151 
 
 it may be assessed to the agent and the tax enforced against 
 him as other assessments for his own property. It is not 
 necessary that the possession should be of a permanent 
 character to subject the agent to assessment — it is sufficient 
 if it be merely temporary.^ All revenue laws make provi- 
 sion for the assessment of personal property when found 
 not in possession of the owner. In general each person is 
 assessable for all property in his possession or under his 
 control or management. In California, when a person is 
 assessed as agent, trustee, bailee, guardian, executor or 
 administrator, his representative designation must be added 
 to his name, and the assessment entered on a separate line 
 from his individual assessment.^ ^ 
 
 1 Where the provision of the stat- 
 ute was, that money invested, loaned 
 or otherwise controlled by any per- 
 son as the agent or attorney of an- 
 other on the first day of May should 
 be listed by him for taxation; also 
 that the property of manufacturers 
 and others in the hands of agents on 
 the same day should be listed and 
 assessed at the place where the busi- 
 ness by the agent was carried on, 
 and a party engaged in carrying on 
 a grist mill and buying grain on com- 
 mission for others residing at a dis- 
 tance, had in his possession a quan- 
 tity of grain bought for others and 
 subject to their order, on being re- 
 quired to furnish a list of all prop- 
 erty in his possession and under his 
 control on the 1st day of May, fur- 
 nished a list of the grain purchased 
 by him for others, and in liis posses- 
 sion, but claimed that this grain was 
 in transitu, and ought to be assessed 
 to the owners at their places of resi- 
 dence. The court held otherwise, 
 using the following language: " In 
 buying this property and storing it, 
 appellant was acting for others, con- 
 sequently he was tlieir agent in doing 
 these acts; he received a commission 
 for his labor and skill in purcliasing 
 precisely as any other agent would. 
 
 and it was his own principal busi- 
 ness, buying grain and grinding it 
 into flour. How this property, when 
 stored in appellant's warehouse, can 
 he said to be in transitu, is difficult 
 to understand. Goods or property 
 are technically in transitu when they 
 are passing from one place to an- 
 other, which was not the case with 
 this grain. It had not commenced 
 its transit from one place to another. 
 The law means that property going 
 or being taken from one county ir 
 the state to another county shall not 
 be assessed in a county through 
 which it is passing. It is then in 
 transitu, and when it reaches the 
 residence of the owner becomes tax- 
 able there, if not assessed at the 
 place of its departure." Walton v. 
 Westwood, 7.3 111. 126. 
 
 2 Sec. 3639 P. C. Cal. 
 
 ' In the name of the agent. In 
 Illinois, the revenue act provides 
 that "The property of manufactur- 
 ers and others, in the hands of 
 agents, shaH be listed by and in the 
 name of such agent as general mer- 
 chandise." The assessor left a, 
 blank list with a party who repre- 
 sented that the goods in store were 
 held by him simply on consignment, 
 but did not give the names of the 
 
152 
 
 THE LAW OF ASSESSMENTS. 
 
 Sec. 67. Trustee — -when property assessable to and -when 
 not.— When tlie legal title to property held in trust is vested 
 in the trustee, in the absence of express provisions in the 
 deed creating the trust, to the contrary, of which the asses- 
 sor has actual notice, the property must be listed in the 
 name of the trustee or person holding the legal title.-' The 
 
 owners of the property. No return 
 being made of the blank, the as- 
 sessor listed and valued the property 
 10 the party without designating him 
 as agent : held that the assessment 
 was valid, and that if the party de- 
 sired the assessment to be made to 
 him as agent he should have made 
 proper retuin of the blank list fur- 
 nished him for that purpose. Lock- 
 wood V. Johnson, 106 111. 335. 
 
 ^ Where a testator provided in 
 his will that his executors should 
 l)urchase some real estate at an ex- 
 l)ense of five or six thousand dollars 
 "for the use of Desdemona Boude 
 for and during the period of her 
 natural life, provided she takes care 
 of and provides for the maintenance 
 and education of Charlotte Smith, 
 daughter of Mary Ann Smith, of 
 the city of Baltimore, in the State 
 of Maryland; and upon the death of 
 said Desdemona Bourie leaving the 
 said Charlotte surviving, the said 
 Charlotte is to have the use of the 
 same during her natural life; and 
 upon her decease the same is to go 
 to my heirs;" and the executors 
 bought a piece of real property and 
 took the title thereto in their own 
 names as executors and placed the 
 said Desdemona in possession. The 
 l)roperty was assessed to the execu- 
 tors for the years 1867, 1868, 1869 
 and 1870, and paid by them. The 
 property was also assessed to the 
 executors for the years 1871 and 1872 
 — one of the executors having died, 
 the survivor refused to pay the taxes 
 on these last assessments, where- 
 upon the tax collector seized upon 
 
 personal property In' the hands of 
 the executor belonging to his testa- 
 tor's estate to enforce payment of 
 the taxes, and the executor brought 
 suit against the tax collector. It 
 was contended that Desdemona 
 Bourie ought to pay the taxes on 
 the ground that she owned a life 
 estate and was in possession of the 
 property, but the court held other- 
 wise, using the following language: 
 " The executors are shown to be the 
 holders and owners of the real and 
 personal property, and w^e do not 
 see any good reason why the per- 
 sonal property in their hands may 
 not be legally seized by the treasurer 
 in order to make the amount of the 
 tax. Where the party chargeable 
 with a tax on real estate is the 
 owner of personal property, that is 
 primarily liable to seizure for the 
 pjtyment of the tax." Ring v. Ew- 
 ing, 47 Ind. 247. Where the land 
 was conveyed to a grantee by name, 
 with the following words in the 
 habendum: "to the said Thomas P. 
 Pingree, trustee, his successors and 
 assigns, to his and their own use, 
 and behoof forever" — ^followed by a 
 declaration of trust by the grantee, 
 reciting that certain mill owners 
 had agreed to form an association 
 for the purpose of constructing a 
 reservoir, dam and pond for the use 
 and enjoyment of their respective 
 mills and privileges, and to annex 
 such reservoir, dam and pond to 
 their respective mills and privileges 
 as part thereof, and for convenience 
 to have the title to same held in one 
 person; that he, the said grantee, 
 
KAME OF OWNER. 153 
 
 assessor is not cliargeable with constructive notice, such as 
 is imparted by the registration or recording of deeds, nor 
 does the requirement to make diligent search and inquiry, 
 to ascertain the names of all persons owning property with- 
 in his count}' or district, make it incumbent on him to 
 search the records of the Register or Recorder of Deeds to 
 ascertain the names of the different owners of the lots or 
 parcels of real estate which it is made his duty to list for 
 taxation.^ But if the title to the property is in the person 
 for whom it is managed, as also in the case of a guardian, 
 the assessment must be in the name or names of the benefi- 
 ciary or wards.^ Under a statute requiring property to 
 be assessed to the "person, firm, corporation, association or 
 company owning it, or having the possession, charge or 
 control of it, and to all claimants'known or unknown," and 
 the father of an infant owner had possession, charge and 
 control of the property, he would be the proper person to 
 list the property to.^ A legatee is not liable to assessment 
 for a legac}' not due or still in the hands of the executor. 
 Until after distribution, the executor is properly assessable 
 with the property and assets of the estate, at the former 
 domicile of the deceased.* 
 
 had no claim and made no claim to fornia on this point the court said: 
 the property conveyed to him by the " It is true, the records of the county 
 deed referred to, and that he held it would have furnished the necessary 
 only In trust for the purposes stated, information, but these records were 
 and that he would and his heirs and only notice to purchasers and in- 
 assigns should at th^ proper expense cumbrancers, and no inference of 
 of the parties in interest and named, actual notice can be drawn from 
 at any time convey said property to them." O'Grady v. Barnhisel, 23 
 them or the persons they shonld Cal. 295. Ko assessment should be 
 name, &c. ; helil, that the legal title made to an administrator after he 
 to the property was in said Thomas has filed his final report and distrib- 
 P. Pingree, and that the property uted the estate. Carleton v. Ash- 
 was properly taxable to him. Miner burnham, 102 Mass. 349. 
 V. Pingree, 110 Mass. 47. ^ " The statute provided that the 
 
 2 An assessment of property owned whole undistributed estate should be 
 by minors who have a guardian, assessed to the executors, (§11). 
 ought to be made in the name of the Under such a distinct and positive 
 wards and not in the name of the provision a legatee could not be re- 
 guardian. Vogel V. Vogel, 78 Ind. quired to assume that any part of 
 3.'56. the estate could be assigned to her, 
 
 '^ In a well considered case in Call- when she could not realize it or 
 
154 THE LA-W OF ASSESSMENTS. 
 
 Sec. 68. After sheriffs sale— pending right of redemption 
 
 In some states a certain period of time is allowed for re- 
 demption, after a sale of real estate under execution or for 
 delinquent taxes, and within which time the debtor or 
 owner of the land sold, may redeem the property on terms 
 provided by statute. In such cases no deed is executed to 
 the piirchaser until after the period for redemption has ex- 
 pired. In some states six months, in some one, and in 
 others two years or other periods are allowed for redemption 
 under execution and tax sales. In the meantime the prop- 
 erty is subject to taxation, and it is incumbent upon the 
 purchaser, in order to preserve his rights as a purchaser, to 
 protect the property from being sold again for delinquent 
 taxes. In all statutes providing for the right of redemption, 
 one of the conditions upon which this right can be exer- 
 cised, is the payment of all taxes paid by the purchaser, 
 assessed' against the property, which were a lien thereon. 
 But the important question is, to whom must the property 
 be assessed after the sale and before the redemption? The 
 title remains in the judgment debtor or party owning it 
 before the sale, until after the sheriffs de«d is executed. 
 Should the assessment be made to the person owning the 
 property when sold, or to the purchaser ? It would perhaps 
 be unsafe to attempt an answer to the question without 
 consulting the provisions of the statute, governing in this 
 respect, assessments of real estate. Under some statutes the 
 provision is that the assessment must be made to the owner 
 or occupant or party in possession or control of the property. 
 In others the provision is, "to the owner if known, but if 
 unknown to the assessor, to unknown owners." In one in- 
 stance, a statute provided for making the assessment "to 
 the owner and to all owners known and unknown." ^ Un- 
 der this last provision it was held that the assessment was 
 
 obtain control over it." Herrick object to the assessment did not 
 
 V. Big Kapids, 19 N. W. Rep. 182 estop the legatee nor prejudice her 
 
 (Mich.) See also Barstow v. Big rights. 
 
 Kapids, 22N. W. Eep. 104 (Mich.) i O' Grady v. Barnhisel, 23 Cal. 
 
 In the case last cited it was held 295. A case arose in California 
 
 that the fact of the executor being under a statute which provided that 
 
 on the board of review and failing to " lauds occupied by any person not 
 
NAME OF OWNEE. 155 
 
 of a double character, binding the owner when his true 
 name was used as an individual obligation, and binding the 
 real estate, whether the true name of , the owner was listed 
 or not. There seems to be no reason why the assessment 
 should not be made in subordination to general rnles gov- 
 erning in other cases, and, which would require it to be made 
 to the owner of the legal title, unless the statute authorizes 
 the assessment to be made to the occupant or party in pos- 
 session. As between mortgagor and mortgagee, the assess- 
 ment is made to the mortgagor, for the same reason that he 
 holds the legal title, and the mortgagee holds onlj'' a lien 
 upon the land to secure the payment of his debt. The 
 purchaser at a sheriff's sale or delinquent tax sale, pending 
 the right of redemption, holds a right to a deed, which it is 
 in the power of the judgment debtor or other lien creditor, 
 or owner at the time of the tax sale, to defeat. The pur- 
 chaser's rights are only such as the statute gives him. In 
 some states he has the right of possession and the rents and 
 profits ; in others he has only the naked right to a deed at 
 the end of the time for redemption. In no case is the 
 purchaser, where the right of redemption exists, clothed 
 with the legal title. He would seem to occupy the posi- 
 tion of a mortgagee more nearly than any other. The 
 mortgagee like the purchaser at sheriff's sale, has the right 
 to pay all taxes which are a lien on the mortgaged premises 
 and charge the same against the mortgagor, but during the 
 time that the relation of mortgagor and mortgagee subsists, 
 the assessment is made to the mortgagor. The purchaser at 
 sheriff's or tax sale has the same right in relation to the pay- 
 ment of taxes which imperil the title to the purchased prem- 
 ises; and before the right of redemption can be exercised, 
 all such taxes paid by him must be repaid.^ If the statute 
 
 the owner thereof shall be listed in It became necessary to examine into 
 the name of the owner, if known, the validity of the assessment under 
 if not, in the name of the occu- which the tax sale was made. It 
 pant." (Session Acts Cal., 1854, appeared, but not very clearly from 
 p. 104), in which the question here the report of the case, that the pur- 
 presented was partially examined, chaser under the sheriff's sale, occu- 
 A purchaser under a sheriff's sale, pied that relation to the property at 
 became the purchaser subsequently the time of the assessment, but ho 
 of the same premises at a tax sale, certainly did at the time of the sale, 
 
156 THE LAW OF ASSESSME^TTS. 
 
 authorizes real property to be listed to the occupant or per- 
 son in possession and control of it, without regard to the 
 name or the residence of the owner, even when known, and 
 the statute regulating redemption authorizes the purchaser 
 at sheriff's or tax sale to take possession during the pen- 
 dency of the right of redemption and he does so, it would 
 follow that the property, during this period, ought to be as- 
 sessed to the purchaser, otherwise to the owner of the legal 
 title.2 
 
 Sec. 69. To the o-siraer or occupant — ■when. — Wliere the 
 statute requires the land situated within the same ward or 
 district of the residence of the owner, when it is occu- 
 pied by another to be assessed to the owner or occupant, it 
 seems that an assessment to either is valid. In such case 
 it would appear to be optional with the assessor to list to 
 tlie name of the occupant without any cause or reason for 
 not making the assessment to the owner. The law, in case 
 of the assessment to the occupant, would be notice to the 
 owner if he found no assessment of land belonging to him 
 occupied by another, to his own name, that it had been 
 listed to the name of the occupant thereof.^ But if the re- 
 
 and that the attempt was made to party in possession, if the owner 
 assess the property to the name of does not. They can derive no benefit 
 the owner at the time of tlie sheriff's from a failure to pay them, and thus 
 sale; but that in this a mistake was suffering the lot to be sold and buy- 
 made which the court held, was of ing it." Kelsey v. Abbott, 13 Cal. 
 itself fatal to the assessment. It was 619. 
 intimated, however, that if no mis- ^ gge post, § 104. 
 take had been made in this respect, ^ 1\\ Xew York tlie provisions of 
 and the property had been correctly statute were as follows: "Sec. 1. 
 described, the assessment would Every person shall be assessed in the 
 have been correctly made. The town or ward where he resides when 
 court used the following language the assessment is made, for all lands 
 on this point: "Clark & Co. went then owned by him within such 
 into possession of these premises; town or ward, and occupied by him, 
 they were in possession at the time or wholly imoccupied. Sec. 2. Land 
 of this tax; they had bought at owned by a person residing in the 
 sheriff's sale, which gave them a town or ward where the same is situ- 
 right to the profits until redemption ated, but occupied by another per- 
 — these they were enjoying. Be- son, may be assessed in the name of 
 tween them and defendants in exe- the owner or occupant." In decid- 
 cution, they should in equity have ing a case where the assessment had 
 paid the taxes ; and the statute casts been made neither to tlie owner nor 
 this duty of paying the taxes on the occupant, the court say: "These 
 
NAME OF OWEEE. 
 
 157 
 
 quirement be, that lands occupied by one who is not tlie 
 owner shall be listed to the owner, if known — if unknown to 
 the occupant, there is no option, and unless the owner is 
 unknown to the assessor, the assessment must be made to the 
 owner, notwithstanding the fact that thej' are occupied by 
 another. It is only when the statute is free from all prece- 
 dent conditions, that the option may be exercised by the 
 assessor in listing to either the one or the other — the owner 
 or occupant.^ If the statute provides for assessing " the 
 
 sections require that, if the owner 
 resides in the town or ward, the 
 iands shall be assessed to him, unless 
 they are actually occupied by anoth- 
 er, and then they may be assessed 
 either to the owner or occupant. 
 . . . The provisions are imperative. 
 There is no authority whatever for 
 making the assessment otherwise 
 than as they direct. The pi'ovision 
 (if section 2, that the lands may be 
 assessed either to the owner or occu- 
 pant would be wholly nugatory, if 
 they could be legally assessed to 
 one who is neither owner nor occu- 
 pant." Whitney v. Thomas, 23 Jf. 
 Y. 285. While the decision was 
 made upon an assessment to one 
 who was neither an occupant nor 
 owner, still, it may be regarded as 
 authority for the position that where 
 the owner lived in the same town or 
 ward and the land was occupied, 
 that the assessment, if made to the 
 occupant would be held valid. 
 
 2 An assessment was made to im- 
 known owners, under a statute 
 reading as follows: "Lands occu- 
 pied by any person not the owner 
 thereof, shall be listed in the name 
 of the owner, if known; otherwise, 
 in the name of the occupant, wlio 
 shall pay the taxes on the same; and 
 for the taxes paid by such occupant, 
 he shall have his action against the 
 owner. Unoccupied lands shall be 
 listed in the name of the owner, if 
 known; otherwise, as lands of per- 
 
 sons unknown." Under this stat- 
 ute the assessor was required to as- 
 sess the lands, whether occupied or 
 vacant, to the owner if known ; and 
 whether vacant or occupied, if the 
 owner were unknown, they were to 
 be assessed to unknown owners. 
 The assessment did not show upon 
 its face that the owner was unknown, 
 nor whether it was occupied or 
 vacant. Justice Sanderson, in 
 construing the provisions and re- 
 quirements of this statute, used the 
 following language: "Thus, the 
 assessor is required to list the land 
 in the name of the owner, when 
 known, whether the land be vacant 
 or occupied ; but when the owner is 
 unknown he must list the land, if 
 occupied, in the name of the occu- 
 pant; if unoccupied, he must list it 
 as the land of a person imknown. 
 This rule must be strictly followed 
 by the assessor in order to impart 
 any validity to the assessment. If 
 tlie land is unoccupied and the owner 
 iraknown, both these facts must 
 appear in the list made by the as- 
 sessor in order to make an assess- 
 ment to an unknown owner valid. 
 If the land is occupied and the 
 owner unknown, both of these facts 
 must appear in the list in order to 
 make an assessment to the occupant 
 valid; or, in other words, a vacancy 
 as to possession, and an ignorance 
 of the true owner, are conditions 
 precedent to the validity of an as- 
 
158 
 
 THE LAW OF ASSESSMENTS. 
 
 inhabitants of the town . . . according to the just 
 value of the real estate possessed by each inhabitant " — and 
 the land is in possession of a tenant, the assessment must 
 not be made to the owner but to the tenant.^ 
 
 Sec. 70. Assessments to unknown owners— -when must be. 
 — The statutory provisions authorizing an assessment of 
 lands to unknown owners or owners unknown, or to a 
 person other than the owner, vary more or less in the dif- 
 ferent states. Tiiis variance between statutes may, and 
 often does, lead to different and sometimes seemingly con- 
 flicting conclusions of law. In each particular case the 
 language of the statute, in this regard, must be consulted.^ 
 
 sessment against an unknown owner, 
 and where the land is occupied, 
 ignorance of tlie true owner is a 
 condition precedent to the validity 
 of an assessment against an occu- 
 pant. If the land be listed to the 
 owner, nothing more need be stated 
 by tlie assessor; but if it be listed 
 in the name of an occupant who is 
 not the owner, it must be stated by 
 the assessor to have been so listed 
 because the owner was unknown to 
 him; and if it be listed as the land 
 of a person unknown, he must state 
 the land is so listed because the 
 owner is unknown and the land is 
 unoccupied." Moss v. Shear, 25 
 Clal. 45. This case so far as it holds 
 that "it must be stated by the as- 
 sessor to have been so listed because 
 the owner was luiknowu to him" 
 has been overruled. See n. 2, § 72. 
 Under tliis statute it is evident that 
 the assessor had no option in listing 
 tlie land to either the owner or occu- 
 pant, he could list to the occupant 
 only when the owner was unknown 
 to him; and he could list to unknown 
 owners only when the land was va- 
 cant and the owner unknown; but on 
 the other point covered by this de- 
 cision, that it was necessary when 
 an assessment was made to an occu- 
 pant, to state that the owner was 
 
 unknown ; and when assessed to un- 
 known owners, that the land was 
 unoccupied and the owner was un- 
 known to the assessor, the case 
 stands unsupported and is overruled 
 by other cases in the same court. 
 See Himmelmann v. Steiner, 38 Cal. 
 70; Hewes v. Keis, 40 Cal. 261. 
 
 5 "According to this direction it 
 was the duty of the assessors to tax 
 all the land actually possessed, to 
 the persons possessing the same." 
 Martin v. Mansfield, 3 Mass. 427. 
 
 ^In California, effort has been 
 made by a Code to cover all depart- 
 ments of state, county and munici- 
 pal government as well as procedure 
 in civil and criminal actions. The 
 provision as to the assessment of 
 property where the owner is un- 
 known, is embraced in sec. 3636 of 
 the Political Code, and has not been 
 changed since it came from the 
 hands of the Code Commissioners in 
 1872, and reads as follows: "If the 
 name of the absent owner is known 
 to the assessor, the property must be 
 assessed in his name; if unknown, 
 the property must be assessed to 
 'unknown owners.'" This latter 
 can be done, only when the land is 
 not occupied or in possession or con- 
 trol of some one. The provisions 
 of sec. 3628 (P. C. Cal.) require all 
 
NAME OF OWNER. 159 
 
 These provisions, like others relating to the assessment of 
 property for taxation, are imperative and must be strictly, 
 or at least substantially observed in order to divest the 
 owner of his title to the property assessed, in case of non- 
 payment of the taxes. Where the provision is that " If 
 the name of the absent owner is known to the assessor, the 
 property must be assessed in his name; if unknown, tlie 
 property must be assessed to 'unknown owners,' " and the 
 assessment be made to " unknown owners and to all owners 
 and claimants Jcnown and unknown" the assessment will not 
 be valid as an assessment to unknown owners, but would 
 show on its face an assessment tO' known owners.''' The first 
 duty of the assessor is to list the property to the owner. 
 In the attempt to discharge that duty, he must make dili- 
 gent inquiry for the names of the owners. Under a stat- 
 ute authorizing assessments to be made to the owner or 
 occupant or person in possession or control of the prop- 
 erty, whether or not, if the owner is known to the assessor, 
 and the property is occupied by or in possession or control 
 of another, it is optional with him to assess to either the 
 owner or the occupant or person having possession or con- 
 trol, is a matter of practical importance. It must be borne 
 in. mind, that the mode of making an assessment, whether 
 to the name of the owner when known, or to the occupant 
 or person in possession or control of the property, or to no 
 
 property within the county to be as- statute require the assessment of all 
 
 sessed "to the persons who own, real estate in the same town or ward 
 
 claim, have possession or control tobeassessed to the owner if known, 
 
 thereof." The provisions of sec. but if occupied by one not the 
 
 3636 (P. C. Cal.) are copied literally owner, the assessment may be made 
 
 into the revenue act of Nevada, to the owner or occupant. 
 
 (Session Laws of Nev., 1861, p. 148). -The assessment being "to un- 
 
 In Oregon the provision is that occu- known owners," and to which were 
 
 pied land may be assessed to the added the words " and to all owners 
 
 occupant or owner; and "unoccu- and claimants, known and unknown, 
 
 pied land, if the owner is unknown, the court held it void, using this 
 
 may be assessed as such without in- language: "In this case the asses- 
 
 serting any name." (Gen. Laws sor, according to the recital In the 
 
 Or., ch. 57, tit. 2, sec. 7). The pro- deed, did not follow this plain and 
 
 visions of sec. 3636 (P. L. Cal.), are simple direction, but assessed the 
 
 also copied literally into the Code property to owners and claimants 
 
 of Washington T. (sec. 2837 W. T. ) known, without naming them. Brac 
 
 In New York the provisions of the dy v. Dowden, 59 Cal. 51. 
 
160 THE LAW OF ASSESSMENTS. 
 
 name at all, or to a name regardless of the fact whether or 
 not it be the name of the owner, is within legislative con- 
 trol.' When the language of the provision is in the alter- 
 native, it would be immaterial which of the words preceded 
 the other, and in the absence of any other inconsistent cog- 
 nate provision, it would seem to he clearly optional with 
 the assesssor to list the property to either the occupant, 
 person in possession or control, if occupied, possessed or 
 controlled by one not the owner, or to the owner. If the 
 owner were served with a blank list and required within a 
 given time to fill it up and furnish it duly verified to the 
 assessor, and did so, it would seem to be inconsistent with 
 such provision, that the assessor should be allowed the 
 privilege thereafter to list the property or any part of it to 
 another or otlier persons, simply because it was occupied 
 by or in his or their possession or control with the consent 
 of the owner. An assessment must be made as the statute 
 directs, and cannot be made otherwise by directions of the 
 owner or his agent. It must be made to the owner, if 
 known ; if not known, unless the land be occupied or in 
 the possession or under the control of another, and tlie 
 statute authorizes the assessment to be made to such other 
 person, it must be made to unknown owners. If the prop- 
 erty be owned by two or more persons vi'ho do business 
 under a common name or designation, the assessment can- 
 not, even with their assent or directions, be assessed to 
 such common name, but must be assessed to the owner or 
 owners by their true names : * or to unknown owners, if the 
 owner is unknown to the assessor. It will not satisfy the 
 requirements of a statute providing for assessments to the 
 owner if known — if not, to unknown owners, to assess to a 
 name as owner and add — "or unknown owners."^ 
 
 ^ Infra, sec. 61. assessment was made to that name 
 
 * Hearst v. Egglestone, 55 Cal. 366. by direction of an agent of the 
 
 In this case the assessment was owner. The court held the assess- 
 
 made to the " Blue Eange Mining ment void because the assessment 
 
 ('ompany, and to all claimants was not made to the owner, who was 
 
 known and unknown." The " Blue in possession by his agent, with his 
 
 Kange Mining Co." was a name deed duly recorded. 
 
 used In conducting the business of a ^In the case of Shirarain v. Inman 
 
 mine owned by one Hearst, and the (26 Me. 228), the assessment was 
 
NAME OF OWNER. 
 
 161 
 
 Sec. 71. Assessment to A. B. and all Owners and Claim- 
 ants, known or unknown — and to unknown Owners, and all 
 Owners and Claimants known and unknown. — Where the stat- 
 ute requires the assessment of property to be made to the 
 owner if known and if not known, to unknown owners, no 
 valid assessment can be made to the name of the owner and 
 all owners and claimants known and unknown} in the absence 
 
 made to " Wm. Shimmin or un- 
 known." This was held not to be 
 in compliance with the statute which 
 required the assessor to " state the 
 names of the proprietors when 
 known," considering it as an assess- 
 ment made of lands, the owner of 
 which was known. There were 
 other defects which the court held 
 to be fatal to the assessment, if con- 
 sidered as made to unknown owners, 
 and which are referred to at another 
 place, so that the question, whether 
 it conld have been upheld as an as- 
 sessment to unknown owners, was 
 not decided. 
 
 - This ruling was made in a recent 
 case in California under the provis- 
 ions of sec. 3636 P. C. Cal. The 
 court say: "The first duty of the 
 assessor under these provisions is to 
 ascertain the name of the owner of 
 each piece or parcel of property and 
 10 assess it to him; his second, if he 
 falls to ascertain the name of the 
 owner, is to assess it to ' unknown 
 owners.' It follows that the as- 
 sessment to D. B. Matlock, ' and all 
 owners and claimants known or un- 
 known,' was void." This view is up- 
 held by Kelsey r. Abbott, 13 Cal. 
 609; Smith u. Davis, 30 id. 537; Blat- 
 ner v. Davis, 32 id. 328, and by other 
 decisions of this court. Grotefend 
 r. Ultz, 53 Cal. 666 (1879); Grimm 
 V. O'Connell, U id. .523. The ruhng 
 on this point has been long con- 
 tinued and uniform in California on 
 the statute as its exists in sec. 3636 
 of the Political Code. According to 
 well established rules of pleading, 
 11 
 
 there seems no reason why the addi- 
 tion of these words should render 
 the assessment void where the true 
 name of tJie owner is given. It 
 would seem to be only surplusage. 
 There are many instances in the Cal- 
 ifornia and other decisions where it 
 has been held that the including of 
 that which is unauthorized with tliat 
 which is, if it can be separated and 
 distinguished, does not nullify the 
 whole as to other parts of the pro- 
 ceedings in the assessment of prop- 
 erty. A case in point is found in 
 the case of Beadry v. Valdez, 32 
 Cal. 276, which was an assessment 
 for street improvements. The reso- 
 lution of intention covered only 
 " macadamizing," while the contract 
 and work done covered " macadam- 
 izing and curbing." Ruling on this 
 point, i. e. including that which was 
 unauthorized with that which was, 
 the court say: "The passage and 
 publication of the resolution of in- 
 tention are the acts by which the' 
 city council acquires jurisdiction; 
 and by those acts they acquire juris- 
 diction to make only such improve- 
 ments as they describe in the resolu- 
 tion, and they c'annot, tlierefore, 
 lawfully cause work other than tliaC 
 which is described to be performed. 
 But if they do, it does not necessa- 
 rily folIow_ that tlie entiie proceed- 
 ings are void. If the work described 
 in the resolution can be separately 
 traced through the entire proceed- 
 ings, and does not become so mixed 
 up with that which is not specified 
 in the resolution as not to be dlstin- 
 
1G2 
 
 THE LAW OF ASSESSMENTS. 
 
 of statutory provisions autliorizing these additional words. 
 So too, an assessment to unknown owners, and all owners 
 and claimants known and unknown, is unauthorized under 
 the provisions of a statute requiring assessments to the 
 owner if known, or to unknown, owners, if unknown. 
 
 Sec. 72. Assessment to unknown Owners — Ignorance of 
 Owner presumed. — When an assessment is made to unknown 
 owners, it will be presumed that the owner of the property- 
 was not known to the assessor. In such case, in the absence 
 of a statutory requirement, it will not be necessary to state 
 that the property is assessed to unknown owners for the 
 reason that the owner is unknown to the assessor. When 
 the assessor lists property to unknown owners, it will be 
 presumed that, as to him, the state of facts existed which 
 authorized the assessment. And this is the proper and safe 
 course for him to pursue, whenever he has any doubt as to 
 the person in whom the legal title is vested.^ The law does 
 
 gulshable from it, the proceedings 
 are valid as to the former and in- 
 valid as to the latter." But a differ- 
 ent ruling from the above is made 
 where unautliorized words are added 
 to the name of the owner in listing 
 the property, as already appears. 
 Keference has already been made 
 to the assessment against Castro and 
 wife (0' Grady B. Barnhisel, 23 Cal. 
 293), "and to all claimants tnown 
 or unknown," under a statute au- 
 thorizing that form of assessment, 
 with this exception, no assessment 
 Vi'here these additional words were 
 written and added, after the name of 
 Hie owner, has been sustained by the 
 courts of California; and if these 
 -words be added in the assessment 
 and omitted from the deed, the as- 
 sessment may be shown to defeat 
 the deed. Grotefend v. TJltz, 53 Cal. 
 666, and cases cited; Daley v. Ah 
 Goon, 1 West Coast R. 58-t (Cal.); 
 (64 Cal. 512). It has been held, how- 
 ever, in a late case in California, 
 that if this additional designation, 
 " to all owners and claimants known 
 
 or unknown," when not authorizeil 
 by statute, and the assessment is 
 made to an owner, but under a dif- 
 ferent heading from that for names 
 of owners, a recital under the head- 
 ing of " description of property" is 
 made in the following words, " the 
 property is assessed to parties listed, 
 arid to all owners and claimants 
 known or unknown," it was but 
 an idle recital, and did not place the 
 assessment within the principles de- 
 cided in Hearst v. Egglestone, 53 
 Cal. 365, and other cases therein 
 referred to. City and County of 
 San Francisco v. Phelan, 61 Cal. 
 619. 
 
 ' Under sec. 9 of the Consolida- 
 tion Act of the city and county of 
 San Francisco, relating to assess- 
 ments for street improvements, tli« 
 provision- is in the following lan- 
 guage, as to the name of the owner 
 of the property to be assessed : . . . 
 ' ' which assessni ent shall briefly refer 
 to the contract, the work contracted 
 frir and performed, and shall show 
 the amount to be paid therefor, to 
 
NAME OF OWNER. 
 
 163 
 
 not impose upon the officer making the assessment tlie diffi- 
 cult task of determining the ownership in fee of tlie hind he 
 is required to assess ; nor is he required to incur the risk of 
 making the assessment in the name of a party not the holder 
 
 gether with the incidental expenses, 
 if any; the rate per front foot as- 
 sessed; the amount of eacli assess- 
 ment; the name of tlie owner of 
 each lot, or portion of a lot (if 
 known to the superintendent) : if 
 unknown the word ' unknown ' 
 shall be written opposite tlie num- 
 ber of the lot, and the amount as- 
 sessed thereon; the number of each 
 lot or portion of a lot assessed." . . . 
 (Sec. 9 Session Acts 1862, Cal. p. 
 397.) Under this statute the super- 
 intendent of streets made an assess- 
 ment against a lotto "unknown," 
 instead of the owner by his name. 
 In answer to the objection that the 
 assessment was not made to the 
 owner, and that it did not appear 
 that the owner of the lot was un- 
 known to the superintendent, the 
 court say: "If this question is to 
 be answered by reference to sec. 9 of 
 the Street Laws above quoted, and 
 this is the only section of tlie law 
 which assumes to define the duty of 
 the superintendent in making the 
 assessment prior to the time of at- 
 taching the same to the warrant, 
 there would scarcely be room to 
 doubt but that the assessment of 
 the premises to " unknown " by the 
 officer is entirely conclusive of the 
 question as to his knowledge of the 
 name of the owner thereof, and that 
 the assessment is valid and binding. 
 But it is claimed that by sec. 17, 
 above quoted, the officer, although 
 ignorant of the real owner in fee, is 
 presumed to know who — if any one 
 there be — is in the actual possession 
 of the premises at the time of mak- 
 ing the assessment, and, knowing 
 that fact, it is his duty to ascertain, 
 by proper inquiry, whether the per- 
 
 son or persons, so in actual posses^ 
 si on and occupancy of such premises, 
 are occupying under claim of title in 
 themselves, oi' are exercising acts of 
 ownership over the same without 
 claim of title, or claim to occupy as 
 the tenants of some other party 
 claiming or without claim of title, 
 and that, for the purposes of the 
 assessment, and for all purposes 
 under the law, the assessment must 
 be made in tlie name of the real 
 owner in fee, or to the person or 
 persons in possession, claiming title 
 ill fee or exercising acts of owner- 
 ship without claim of title; and in 
 case the party in possession claims 
 to hold such, as the tenant or lessee 
 of some other party, then in the 
 name of the party recognized as the 
 landlord of the occupant. Such an 
 assessment would doubtless be ef- 
 fectual to charge the pai'ty in whose 
 name the premises were so assessed 
 personally, as contemplated by sec. 
 17, but clearly would not be effectual 
 to create a lien upon the premises as 
 against the party holding the legal 
 title, unless made to him by name as 
 owner. If made to the party occu- 
 pying the premises, claiming title 
 without holding the same in fact, or 
 exercising acts of ownership without 
 claim of litle, or to a party in pos- 
 session by his tenant, without title 
 in fact, such assessment could only 
 create a lien upon the interest of the 
 party in whose name it was assessed, 
 and on foreclosure of such lien and 
 sale of the premises under decree of 
 foreclosure, no other or greater in- 
 terest 6r title would pass to the pur- 
 chaser than was held by the party in 
 whose name it was assessed; and the 
 title and interest of the real owner 
 
164 THE LAW OF ASSESSMENTS. 
 
 of the legal title.* If he have a rational doubt as to the own- 
 ership in any particular person who may be i-eputed as the 
 owner, or in possession, claiming to be the owner, he cannot, 
 in the sense of the statute be held to know the fiict of own- 
 ership, and is authorized and required to assess the prem- 
 ises to unknown owners, or to owner "unknown," as the 
 statute ma}^ direct.* 
 
 Sec. 73. Assessment to unknown Owners — conclusive as to 
 Owner as to the Assessment. — The assessment, when made to 
 unknown owners in the mode directed by the statute, be- 
 comes conclusive on tlie question of the knowledge of the 
 ownership by the assessor or other officer making the assess- 
 ment. To an assessment thus made, no objection or defense, 
 to the effect that the officer at the time, did know who the 
 owner was, or that the person making the objection or de- 
 fense, was the owner of the property, can be made. Such 
 assessment has the legal effect of an official certificate that 
 the owner of the property described, was, at the time, un- 
 known to tiie assessor or person making tiie assessment. If 
 
 in fee, to whom the property had not son for that mode of assessment, 
 
 been assessed, would not be affected was again passed on in the same 
 
 by such j)roceedings. . . . The only courtin the following language: "In 
 
 safe and effectual course to be pur- the assessment the word 'unknown' 
 
 sued by the street superintendent in is written opposite the number of 
 
 making his assessments, to render the lot. The statute provides that 
 
 the same practically successful and the assessment shall show the name 
 
 efficient as a means of securing a of the owner, if known ; if unknown 
 
 valid lien upon premises liable to as- to the superintendent that the word 
 
 sessment as against the real owner ' unknown ' shall be written oppo- 
 
 in fee, and thereby enable the party site the number of the lot. This 
 
 for whose benefit the assessment is assessment is in exact compliance 
 
 made to enforce payment, is to make with the statute, and, read with the 
 
 the assessment in the name of the statute, shows as effectually as the 
 
 owner in fee, if known to him; and most elaborate certificate could, that 
 
 if not known to him, or if, after dili- the lot was assessed to unknown 
 
 gtnt inquiry, he entertains a rational owners, because the name of the 
 
 doubt as to the name of the party in owner was unknown to the superin- 
 
 whom the legal title is vested, to as- tendent.'' Hewes u. Eois, 40 Cal. 
 
 sessthe same to owner 'unknown.'" 261. The doctrine as stated in this 
 
 Ilimmelman v. Steiner, 38 Cal. 178. section and the cases last cited are 
 
 -Ilimmelman t. Steiner, 38 Cal. in contravention of the ruling made 
 
 lt2. The point to the effect that it in the case of Moss v. Shear, 25 Cal. 
 
 is sufficient to write "imknown" 46, and so far as the cases of Him- 
 
 w.thout stating any words as a rea- melman s. Steiner, and Hewes v. 
 
NAME OF OWNER. 
 
 166 
 
 the facts be the other way, that the owner was in fact, at 
 the time, known to the assessor, the remedy is against the 
 officer, as against a sheriff for a false return;^ but the as- 
 sessment would be valid.^^ In some states lauds are classi- 
 
 Keis conflict tlierewith, they over- 
 rule Moss V. Shear, being the later 
 decisions of the same court. These 
 later cases were recognized again in 
 Chambers ». Satterlee, 40 Cal. 518. 
 
 iln Hewes v. Reis, 40 Cal. 261, 
 the court held that an assessment 
 to unknown owners, was as ex- 
 pressive of the want of knowledge 
 of the owner, as "the more elabo- 
 rate certificate" could be that the 
 assessment was so made because the 
 name of the owner was unknown to 
 the officer. In another case, in the 
 same court upon the same question, 
 the court used the following lan- 
 guage: "We lately had occasion in 
 the case of Hewes v. Keis to define 
 the import of the word 'unknown,' 
 when thus indorsed by the superin- 
 tendent upon the assessment, and 
 we then held that it amounted to au 
 official certificate by the proper offi- 
 cer, that in point of fact the owner 
 of the particular lot designated was 
 unknown to him. We think that 
 when such a certificate has been 
 given by the officer it is conclusive 
 of the fact so certified, and cannot be 
 collaterally called in question in an 
 action brought upon the assessment 
 upon which it is officially entered. 
 A party who relies for recovei-y upon 
 such an assessment is not to be 
 called upon to embark in an inquiry 
 as to the probabilities of the actual 
 state of knowledge possessed by the 
 officer at the time that the certificate 
 was made, but may rely upon it as 
 conclusive that in point of fact such 
 ownership was vmknown to the offi- 
 cer. This we understand to be the 
 general rule as to the effect of such 
 certificates when collaterally as- 
 sailed, and if such certificate be 
 
 false in fact and damage has ensued, 
 the party injured must seek his 
 redress by an action against the offi- 
 cer, directly alleging its untruth." 
 Chambers v. Satterlee, 40 Cal. 518. 
 
 2 The doctrine of this case was 
 recently affirmed in the same court 
 in the following language — speaking 
 of the clause in section 3628 of the 
 Political Code (referred to n. 9, 
 § 61) : " The effect of the clause in 
 sec. 3628 is to give a more enlarged 
 operation to a rule already estab- 
 lished. Prior to the adoption of 
 that clause it had been frequently 
 held, that a defendant sued for a 
 tax, assessed to ' unknown owners,' 
 could not be permitted to prove that 
 the assessor might with more dili- 
 gence have ascertained the real 
 owner of the property. On behalf 
 of the defendant, in those cases, it 
 was urged that imless inquiry was 
 permitted with respect to the care 
 and diligence of the assessor, that 
 officer would have it in his power 
 entirely to neglect his duty and as- 
 sess to unknown owners property, 
 the ownership of which he would 
 use no effort to ascertain, or which 
 he might even know to belong to a 
 particular person. So, here, it is 
 said that if he is allowed to assess 
 the property to a person other than 
 the real owner, he may abuse the 
 power. But the ascertainment of 
 the najne of the owner is a matter 
 with respect to which the assessor 
 has discretionary power, and his 
 judgment or conclusion in regard to 
 it is final, so far as the validity of 
 the tax is concerned." Lake County 
 V. Sulphur Banks Mining Co., 4 W. 
 C. K. 187 (Cal.) 
 
 3 From what is shown in this chap- 
 
166 
 
 THE LAW OF ASSESSMENTS. 
 
 fied as seated and unseated, improved and unimproved, 
 resident or occupied and non-resident or unoccupied, and 
 the requirements as to each class, are different. The former 
 class is to be assessed to the owner, and the tax is made a lien 
 upon the land, sometimes for the real property tax only, and 
 sometimes for the tax assessed for both the real and personal 
 property tax, of the owner; payable first from the personal 
 property, and only ultimately from the real property; while 
 the latter class may be assessed to unknown owners, espe- 
 
 ter it sufficiently appears that much 
 difficulty and frequent error attend 
 the efforts of assessors in listing 
 property to the owners by their true 
 names; also that this requirement — 
 listing to the name of the owners — 
 is wholly under legislative control. 
 In 1857 the California Legislature 
 added a clause to its revenue act 
 and which is referred to in this 
 chapter, reading in the following 
 language: ''All real estate, im- 
 provements and personal property 
 shall be assessed to a person, firm, 
 corporation, association or company 
 as herein provided, and to all own- 
 ers and claimants knoion or vn- 
 known." Where an assessment was 
 made under this statute to one, not 
 the owner, and the words " and to 
 all owners and claimants known or 
 unknown,'' were added to the name 
 used, Justice Cope, jn one of his 
 ablest opinions, passing upon the 
 validity of this character of assess- 
 ment, said: "It is only where a 
 mistake is made. in this respect (the 
 ..name of the owner) that the general 
 words of the provision are impor- 
 tant; and the object in requiring 
 them could only have been to pro- 
 vide a cure for the mistake, so far 
 as to give validity to the assessment 
 as against the property. We regard 
 the act as creating two remedies, one 
 against the person and the other 
 against the property; each having 
 a separate existence, and the effi- 
 
 ciency of the one, not depending 
 upon that of the other." O' Grady 
 V. Barnhisel, 23 Cal. 294. (Session 
 Act, Cal. 1857, p. 32.) Here is a 
 simple provision, held to be valid 
 and legal, which cures all mistakes 
 and errors as to the name of the 
 owner in all assessments required to 
 be made. With this provision en- 
 grafted into all statutes or laws pro- 
 viding for the assessment of property 
 for taxable purposes, the labors of 
 assessors in this particular would be 
 made easy and the public service 
 better performed. But at the same 
 time the rights of owners should be 
 protected against the mistakes of 
 assessors. The act above referred 
 to was further amended (see Session 
 Act 1859, §2, p. .346,) as follows: 
 "Provided all real estate and per- 
 sonal property shall be assessed to a 
 person, firm, corporation, associa- 
 tion or company, as herein provided, 
 if the owners or claimants shall be 
 known to the assessor, and to all 
 owners and claimants known or un- 
 known, and to all owners and claim- 
 ants of any interest, present or 
 future therein, or any lien upon the 
 same, and no error in regard to such 
 owner or claimant shall in any wise 
 affect the validity of such assess- 
 ment." The same act provided that 
 "a. deed made in conformity with 
 the requirements of section twenty- 
 two, shall convey to the grantee the 
 absolute title to the lands described 
 
NAME OF OWNER. 
 
 167 
 
 cially if the owner is unknown to the assessor ; and the tax 
 is a lien against the land, and can be enforced only against 
 the particular land assessed. Where the hinds of the first 
 class, being occupied, are assessed as lands of the second class 
 — to unknown owners, the assessment, although not void, 
 is irregular and erroneous. By such assessment, the owner 
 cannot be deprived of his right to have the tax enforced 
 against personal property in the first instance, if he have 
 any.* , 
 
 in said deed free and clear of all 
 encumbrances . . . whatever, 
 said land was taxed to such per- 
 son or persons, corporation or cor- 
 porations, by name or not," etc. 
 (id. 349). In passing on these pro- 
 visions Justice Sawyer, in the case 
 of Brunn v. 'Murphy, 29 Cal. 329, 
 used the following language: "It 
 would seem that if there is any 
 possibility of obviating by means of 
 human language the force of appel- 
 lant's criticisms upon the assessment 
 ' to Murphy and Dooley and to all 
 other known and unknown owners 
 and claimants,' the legislature has 
 accomplished it in these provisions. 
 If not, that body may well despair 
 of accomplishing the desired result, 
 and assessors may also despair of 
 ever making an assessment that will 
 stand the test of judicial scrutiny." 
 It will thus be seen that the author- 
 ity of the legislature is established at 
 least in one state, as supreme, in the 
 power to regulate the mode of as- 
 sessments of real and personal prop- 
 erty for purposes of taxation; and 
 that it is within the province of the 
 legislature, to enact that errors in 
 the name of the owner of property 
 assessed, need not necessarily be 
 fatal to an assessment. 
 
 * In Nebraska the statute required 
 resident or improved land to be as- 
 sessed to the owner, and made the 
 tax a lien on the land, payable out 
 of the owner's personal property 
 
 primarily, and secondarily out of the 
 particular land assessed. The other 
 class, non-resident or unimproved 
 lands, were to be assessed where the 
 owner was unknown to the assessor, 
 to unknown owners, and the tax 
 was payable in the first instance out 
 of the land. An assessment was 
 made of improved lands to unknown 
 owners, and suit was brought to en- 
 join the collection of the tax and 
 have -it declared void. In denying 
 the application the court used the 
 following language: "No attempt 
 appears to have been made by tlie 
 assessor to ascertain the name of the 
 owner. A store building occupied 
 by the owner, and containing boots 
 and shoes, was situated on the lot at 
 the time of the assessment in 1875. 
 In August, 1875, McMillan, the 
 owner, sold one half of the premi- 
 ses to tlie plaintiff, who afterwards 
 and before the assessment was made 
 in 1876, purchased the entire interest 
 of McMillan therein. It is also 
 clearly shown, that the plaintiff 
 possessed an abundance of personal 
 property out of which to collect the 
 taxes due upon the premises. Un- 
 der these circumstances can the 
 assessor, by failing or refusing to 
 perform his duty in listing real 
 estate in the name of the proper 
 party, defeat the right of such party 
 to pay his taxes upon his real estate 
 out of his personal property ? We 
 think not. It is the duty of the 
 
168 
 
 THE LAW OF ASSESSMENTS. 
 
 assessor to list all real estate in the 
 name of the owner of it, if it can 
 be ascertained. This is not a matter 
 of choice, but of duty. Where, 
 under the statute as it existed prior 
 to September 1st, real property was 
 improved and occupied as in tliis 
 case, the assessor could not defeat 
 the rights of a tax-payer, by making 
 an erroneous or false return. If 
 that were so the home of a party 
 raiglit be sold from under him for 
 taxes, .notwithstanding he had an 
 abundance of personal property, out 
 of which the taxes could have been 
 collected in the county. The prayer 
 of the petition is to have the taxes 
 in question declared null and void. 
 Til ere is no offer on part of the 
 plaintiff to pay the amount due. It 
 is evident that the taxes are a lien 
 upon the lot in question, and such 
 being the case, the rule that he who 
 seeks equity must do equity, applies 
 with full force. The law does not 
 favor exemption of property from 
 taxation. All taxable property should 
 bear its fair share of the public bur- 
 
 dens, and where it does not, injus- 
 tice is done to those who are com- 
 pelled to bear this added burden, to 
 their own proportionate share of 
 taxation." Lyman v. Anderson, 2 
 N.W. Eep. 738 (Neb.) The court, 
 however, held that the plaintiff in 
 the action had a right to redeem the 
 property from a sale that had been 
 made of the real property assessed, 
 within thirty days, by paying tiie 
 sum due witli costs, otherwise, the 
 property to be sold to satisfy the 
 amount due. It will be seen that 
 the assessment was sustained, not- 
 withstanding it was erroneously or 
 falnely made to unknown owners 
 when the owner's name might easily 
 liave been obtained. But the sale 
 that was made, imd^r the assess- 
 ment to unknown owners, which 
 should have been made to the owner, 
 was not sustained. To have sus- 
 tained it, would have been to deny 
 to the owner the privilege and right 
 to have the tax satisfied out of pei^ 
 sonal property. 
 
DESCRIPTION. * 1G9 
 
 CHAPTER VII. 
 
 DESCRIPTION. 
 
 Sec. 80. Real Estate— how described. — When real estate 
 is assessed the description must be such as will identify the 
 particular lot or tract to be a separate and distinct parcel, 
 as to all other lands. It must be such a description as is 
 authorized by statute. When the tract constitutes part of 
 a congressional subdivision or other official survey, a de- 
 scription by such subdivision or survey will be sufficient. 
 When not susceptible of such a description, the land to be 
 included may be described by metes and bounds; and some- 
 times, the name bj- which a tract is known will be sufficient. 
 A description that would be good in a deed or other instru- 
 joent affecting the title to real estate between the parties 
 thereto, to pass the title or authorize a court, in a proper 
 case, to decree a specific enforcement or performance, is 
 not sufficient in an assessment of the same land. The rea- 
 son is, that in the case of a deed, the court can inquire 
 into the intention of the parties, and for that purpose 
 extrinsic evidence may be introduced, but in an assessment 
 for taxes, the owner of the land is not a party to it, and is 
 not bound by any, intention of the assessor or officer mak- 
 ing the assessment.^ The character and sufficiency of the 
 description of real as well as personal property, is con- 
 trolled by the will of the legislature.^ In order therefore 
 
 1 Black on Tax T. 124; Keane v. thus determined tlie question, it is 
 Cannovan, 21 Cal. 302; People v. not for the court to say that any 
 Cone, 48 id. 429; People v. Mahoney, other mode of description shall be 
 55 id. 288. good, because it may in their opinion 
 
 2 The law on this point is well ex- equally accomplish the end. Had 
 pressed by Justice Chuistianct in the legislature seen fit to adopt, in 
 the following language: " The legis- the case provided for in this sub- 
 lature had a clear right to determine division, the same principle which 
 what should be a sufficient descrip- applies to conveyances between in- 
 tion for these purposes, and having dividuals, as they have done in the 
 
170 
 
 THE EAW OF ASSESSMENTS. 
 
 to judge of the sufficiency of the description of a real 
 property assessment, it is necessary to examine the provi- 
 sions of the statute under authority of which it is made.^ 
 The modern tendency is, to relax the rules which entirely 
 excludes oral testimony, in aid of a description used in an 
 assessment. The testimony of surveyors and experts is 
 now received, to ascertain whether, from the description 
 used, the land intended can be identified and located. 
 
 fourtli subdivision in reference to 
 town or village plats, and added tlie 
 words, ' or in some other way by 
 which it may be known,' the de- 
 scription would, I think, have been 
 sufficient." Amberg i>. Rogers, 9 
 Mich. 336. 
 
 ' Tlie statute of Michigan provided 
 liow certain classes of real property 
 should be described, among others, 
 as follows: " 2. If the tract be the 
 subdivision of a section authorized 
 by the United States for the sale of 
 the public lands, it shall be described 
 by a designation of such subdivision, 
 with the section, township and range. 
 3. If the tract be less or other than 
 such siibdivision, it shall be described 
 by a designation of the number of 
 the lot or tract, or of other lands by 
 which it is bounded." A tract of 
 land was described in the assessment 
 as " the west half of the southwest 
 fractional quarter of section twenty- 
 eight in town one, south of range 
 twelve east, containing 50 acres, 
 more or less, in the county of Wayne 
 and state of Michigan." The tract 
 - consisted of part of the southwest 
 fractional quarter, containing 100 
 acres, and had never been sub- 
 divided by official survey, and had 
 been sold under the general descrip- 
 tion of " Southwest fractional quar- 
 ter," (fee. It was held that the land fell 
 within the "3d subdivision" above 
 stated, and ought to have been de- 
 scribed by the ' ' other lands by which 
 it is bounded." The court uses the 
 
 following language ruling upon this 
 point: "It is urged that this de- 
 scription is a substantial compliance 
 with this 3d subdivision, because by 
 necessary fmplication it designates 
 the land by which it is bounded. 
 This may be said of any descrip- 
 tion provided for by any of the other 
 sub-divisions of this section, but do 
 not think this is a fair interpretation 
 of the statute. One pi'incipal ob- 
 ject of the statute doubtless was to 
 secure such a description as would 
 enable parties interested readily to 
 ascertain whether their lands were 
 taxed or advertised for sale; and the 
 express designation of other lands 
 by which it is bounded would be one 
 of the best means of accomplishing 
 this end, while an implied designa- 
 tion of such other lands would have 
 little, if any, such tendency." Am- 
 burg V. Eogers, Mich. 336. The 
 statute of California, under which 
 an assessment was made, required 
 the land to be described " by town- 
 ship, range, section or fractional 
 section; and when such land is not 
 a congressional division or sub- 
 division, by metes and hounds or 
 other descriptio)! sufficient to iden- 
 tify it, giving an estimate of the 
 number of acres, locality, and the 
 improvements thereon." The de- 
 scription given was as follows: 
 " 1,013.86 acres of land, being a 
 portion of the San Pedro Eancho, 
 bounded as follows : North by the 
 lands of James Kegan and others; 
 
DESCEIPTION. 
 
 171 
 
 The object of a description in an assessment of real prop- 
 erty being to point out, with common certaintj', the land 
 sought to be included, " any description which does this in 
 such a way as to leave the public no room for mistake as to 
 what property was intended, is sufficient. Testimony to 
 identify property which is the subject of tax proceedings, 
 is admissible, as it is for the purpose of identifying the sub- 
 ject of legal proceedings in general."^ 
 
 Parol evidence cannot be used to supply any defect or 
 omission in the description used, nor to vary or add there- 
 
 east by the land of the San Pedro 
 Kancho; south by the Pacific Ocean, 
 and west by the lands of Eichard 
 Tobin. Also 15 acres of land, being 
 a portion of the San Pedro Rancho, 
 bounded on the north by the lands 
 of Kicliard Tobin; south by the 
 lands of Felton and Patterson; 
 west by the Pacific Ocean; east by 
 the lands of Richard Tobin." Jus- 
 tice Koss, delivering the opinion of 
 the court, said: "In the assess- 
 ment under consideration, the first 
 piece of property is described as 
 being bounded ' on the north by the 
 lands of James Eegan and others.' 
 A more uncertain and indefinite 
 Ijouiidary than this can scarcely be 
 conceived. Who the ' others ' are 
 whose lands are said to bound the 
 tract attempted to be assessed, does 
 not appear upon the face of the as- 
 sessment, and extrinsic evidence, as 
 we have seen, cannot be resorted to 
 for the pvirpose of shoving. The 
 south boundary of the second piece 
 of property attempted to be assessed 
 is but little, if any, more certain. 
 Neither description is sufficient to 
 constitute a valid assessment. The 
 objectional portions of the bounda- 
 ries given are to be found in the 
 north boundary of the tract first 
 described — 'North by the lands of 
 James Kegan and others.' " The 
 names of all persons by whose lands 
 the tract was bounded on the north, 
 
 under the requirements of this stat- 
 ute, should have been given. Also 
 the south boundary of the 15 acre 
 tract should have given the christian 
 names of " Felton and Patterson." 
 People V. Mahoney, 55 Cal. 289. 
 
 «" Stewart v. Carter, 18 N. W. 
 Eep. 99 (Minn.) A description 
 which may appear vague, will not 
 always be held insufficient to charge 
 the party assessed with liability for 
 the taxes. Where a parcel of real 
 estate was described as " Steam mill 
 in South Lansing," and personal 
 property was taken' under levy for 
 the tax and replevied, and this un- 
 certainty of description was relied 
 on to sustain the replevin, it was 
 held, that for aught the court knew, 
 this was the proper description as 
 shown by the plat of the town. '• At 
 all events, it is not denied that it 
 (the property)" was subject to taxa- 
 tion, and was lawfully assessed with 
 the tax charged against it. Under 
 this state of facts plaintiff cannot be 
 relieved from liability for want of a 
 suflicient description of the property 
 to enable a stranger to identify it.'- 
 Shawu. Orr, 30 Iowa 360. There 
 would seem to be a marked differ- 
 ence as to the certainty of description 
 between the enforcement of the per- 
 sonal liability for the tax, and its en- 
 forcement against the land assessed. 
 
 Description by plat. A statute of 
 Illinois provided that when a parcel 
 
172 
 
 THE LAW OF ASSESSMEJTTS. 
 
 to ; but as in ordinary cases, may be iised to apply the 
 description to the subject matter of it.^*" Abbreviations, 
 such as are generally understood and such as are used in the 
 U. S. Land Office, may be used to describe the land where 
 
 of land consisted of less than the 
 sixteenth of a section, the owner 
 might cause a plat thereof to be 
 made by the county surveyor, who 
 should certify the same; that the 
 plat should describe and set forth 
 the several lots or parcels, showing 
 the location of each and the quan- 
 tity contained in each emljraced by 
 the plat; that such plat should be 
 recorded, and when so done the lots 
 or parcels might be described by the 
 plat in the assessment for taxation ; 
 also if the owner refused to cause 
 such plat to be made that the as- 
 sessor might have the same done. 
 Where land is described in an assess- 
 ment by a plat pui'porting to have 
 been so made, it must appear to 
 have been made by the county sur- 
 veyor, and must show the quantity 
 ill the lot or parcel; otherwise the 
 assessment will not authorize a judg- 
 ment. The People v. Reat, 107 111. 
 .584. The statute of Minnesota pro- 
 vided for a description of tracts of 
 land of irregular shape by platting 
 the same into lots, a survey being 
 made when necessary, and recording 
 such plat. This being done, " the 
 description of the property, in ac- 
 cordance with the number and de- 
 scription set forth in such plat, shall 
 be deemed a good and valid descrip- 
 tion of the lot or parcels of land so 
 described." The county surveyor 
 divided and platted an irregular par- 
 cel and called the lot or parcel " lot 
 No. 2 of the sub-division of the N". 
 W. i of K. W. i section 24, township 
 1.30, range 42." The plat was re- 
 corded and it was assessed by this 
 description. The court held that 
 this was not a description of the 
 tract or parcel, unless the statute 
 
 made it so; but that the recording 
 of a plat, without an intelligent de- 
 scription giving starting point, witli 
 courses and distances, without ex- 
 trinsic reference, did not have the 
 effectj under this statutory provision, 
 of describing the land for taxable 
 purposes. Williams v. Central Land 
 Co., 21 N. W. Eep. 552 (Minn.) 
 
 5 '' Tlie description of a tract of 
 land was in the words and figures 
 following: "Commencing at the 
 southeast corner of the northeast i 
 of northwest i of section 19, 75, 15; 
 running thence west 14.60 chains; 
 thence north 15 deg. east, 5.90 
 chains; thence east 13.10 chains; 
 thence south 5.73 chains to the place 
 of beginning, containing7,936 acres." 
 An assessment was made to the owner 
 in the words and figures following: 
 "Batenian H. Goe, east f S. i, HA, 
 noi'theast, northwest 19.75, 15, 7^ 
 acres; value per acre, $40; value of 
 land, $300." This description cov- 
 ers a little more than 6f acres of the 
 land contained in the whole tract 
 above described, and the court held 
 that it authorized a sale of the land 
 embraced within the description used 
 in the assessment. It was admitted 
 that B. H. Goe owned but one tract 
 of land in the county. The court in 
 deciding the matter said: "Parol 
 evidence is admissible, not for the 
 purpose of adding to or varying the 
 description contained in the certifi- 
 cate of purchase, but of applying 
 that description to its subject mat- 
 ter; and when it is shown thatB. H. 
 Goe owned one tract of land and but 
 one in the northeast J northwest i 
 19, 75, 15, the description, the tract 
 of land owned by B. H. Goe in the 
 southeiMt part of the northeast J of 
 
DESCRIPTION. 
 
 173 
 
 it admits of such description.* In describing a city lot; 
 block, or fraction thereof, or of an addition thereto, platted 
 and recorded as such, even though defectively done, the 
 description may be given according to the plat or plan of 
 the city or addition.^ Description furnished by U. S. sur- 
 veys of the public lands may always be used in making 
 assessments. 
 
 Sec. 81. Real estate — described by metes and bounds — 
 excepting portions. — Where the provisions of the statute 
 require that all real estate situate without the limits of a 
 city or incorporated town shall be described op the assess- 
 ment roll " by metes and bounds, or by common designation 
 or name, giving the number of acres as nearly as can be 
 conveniently ascertained and the location and township 
 where situate "■ — and the assessment describes a tract by 
 metes and bounds, but excepts or attempts to except a 
 portion therefrom, it is necessary to describe the excepted 
 portion also by metes and bounds. It is not sufficient to 
 
 the northwest J 19, 75, 15, is just as 
 definite and certain as if the descrip- 
 tion in full had been written out in 
 the certificate'. The doctrine that 
 liarol evidence is admissible for the 
 purpose above indicated is recog- 
 nized, at least impliedly, in Imme- 
 gart V. Gorgas, 41 Iowa 439, and 
 Blair Town Lot and Land Company 
 V. Scott, 44 Id. 143 (151.) . . . The as- 
 sessment and sale authorize a con- 
 veyance to the purchaser of so much 
 of the land owned by B. H. Goe as 
 is actually included in the assess- 
 ment." Judd i;. Anderson & Goe, 
 1 K. W. Eep. 078 (Iowa.) 
 
 ■• ' ' The name of Clark Lewis is writ- 
 ten in the margin, and then the de- 
 scription of the land is given opposite 
 10 it in the same line, as follows : E. -J- 
 S. W. i section 24, town. 3, south 
 of range 7 west, 80 acres, &c. This 
 mode of describing lands in tax rolls 
 and other documents has x'revailed 
 for many years in this state; it is 
 perfectly intelligible, and can leave 
 no doubt what is meant; the figures 
 
 are to be read in connection with the 
 captions. Mr, Webstkh, in his Unr 
 abridged Dictionary, page 275, says 
 E., as an abbreviation, stands* for 
 East, and W. for West (page 1243), 
 and S. stands for South. When 
 used in a proper connection, these 
 abbreviations are plain and valid in 
 law. Sibley v. Smith, 2 Mich. 503." 
 A description in the following form 
 was lield to be sufficient: Matthias 
 Wagoner, S. E. i of jST. W. i section 
 18, T. 21, N. E. 7 E, 40 acres— $35. 
 The court, in passing on the objec- 
 tion to the sufficiency of this descrip- 
 tion, say: "The abbreviations are 
 as well understood in the state as the 
 words for which they stand." The 
 Jordon Ditching and Draining As- 
 sociation V. Wagoner, 33 Ind. 51. 
 Where the abbreviation "do." is 
 written immediately under other 
 proper words or abbreviations of de- 
 scription, it is sufficient. Hodgdoa 
 V. Burleigh, 4 Fed. Rep. 111. 
 
 5 Janesville v. Markoe, 18 Wis. 
 356. 
 
174 
 
 THE LAW OF ASSESSMENTS. 
 
 describe the excepted portion by referring to it as that por- 
 tion sold hy A. B. to 0. J)} 
 
 Sec. 82. Real estate — described by name— lot and block— 
 "east end of." — Where the statute provides that land shall 
 be described by name if known by one; under a subdivision, 
 the description of the land by its subdivisional name will 
 be sufficient.^ Under a statute requiring the description of 
 public lands to be by metes and bounds, by lots or fractions 
 of lots, or otherwise, giving, as to lands outside of a city or 
 town, the quantitj'' of acres as near as possible, "and the 
 locality and.township where it is situated — a description by 
 name and locality where the tract is known by such name, 
 is a sufficient compliance with the statute.^ An assessment 
 
 ^ An assessment after describing a 
 1ract by metes and bounds added 
 (he following: " excepting therefrom 
 that portion of about eight thousand 
 acres sold by Job Dye to F. W. Fratt 
 and T. R. King," &c., referring to 
 the deed records of the county for 
 the book and page where the deed 
 was recorded. Tlie court held the 
 assessment void because it was " im- 
 possible to ascertain from the assess- 
 ment, on its face, what particular 
 lands were intended to be assessed 
 and what excepted ; " that the stat- 
 ute required that the description, 
 either " by common designation, or 
 name, or by metes and bounds shall 
 appear upon the face of the assess- 
 ment roll; so that by inspecting it, 
 the owner and all other persons may 
 know what particular land is as- 
 sessed." People «. Cone, 48 Cal. 
 427. See also People v. Hyde, id. 
 4:)1. 
 
 Under a statutory requirement 
 of this character the Supreme Court 
 of New Tork used the following 
 language: "The Revised Statutes 
 (vol. 1, § 12) declare that if the land 
 to be assessed be a tract which is 
 so subdivided into lots, or be 
 part of a tract which is so sub- 
 divided, the assessor . . . shall 
 
 designate it by its name if known 
 by one. The intention of the 
 statute was that the assessment 
 should contain a true description of 
 the land, so that the purchasers at 
 the sale might be able to find and 
 locate the same, and that the owner 
 might know that his land was ad- 
 vertised. ... By giving the known 
 name of the part which is divided 
 into lots, the spirit and intent of the 
 statute is fully carried out. The 
 designation of this lot as No. ."54, 
 Town one, Range thi-ee — acres 150 — 
 is a statement of all that the law 
 requires, and furnishes full informa- 
 tion to all parties interested as to 
 tlie lot intended to be assessed." 
 Coleman v. Shattuek, 62 N. T. 361. 
 2 The following, held to be suffi- 
 cient under this statute: "Four 
 hundred acres of land situated on 
 the Volcano and Jackson road in 
 Township No. 1 of the county of 
 Amador and State of California, and 
 commonly known as the New York 
 Rancho." High v. Shoemaker, 22 
 Cal. 368. The following has been 
 held to be a sufficient description in 
 an assessment: "Fork's House 
 Ranch: said ranch situated about 
 twelve miles north and easterly from 
 Michigan Bluffs, about one and a 
 
DESCEIPTION. 
 
 175 
 
 may be made of a known quantity of acres which the owner 
 is entitled to have located within the exterior lines of a 
 tract,, after other known quantities shall have been located 
 therein, described by a common name, when such tract is so 
 known.^ Where land is described by lot and block 
 of a particular person's [named] addition to a town or city 
 
 half miles southerly and easterly 
 from Damascus," also the following 
 description has been held to be suffi- 
 cient, the name of the occupant 
 being given — ''a house and lot on 
 tlie north side of Main street, Mich- 
 igan Bluffs, occupied by A. Fergu- 
 son as a tin shop." Passing on the 
 question, as to describing the name, 
 the court said: " A description of a 
 tract of land by name is siifficient, 
 as It is presumed that the tract, and 
 the extent of its boundaries, is well 
 known by the name." People v. 
 Leet, 23 Cal. 163. The provisions 
 of the statute under which the as- 
 sessment in the above case was made 
 read as follows: " Second — All real 
 estate and improvements taxable lo 
 each inhabitant, firm, Incorporated 
 company, or association, described 
 by metes and bounds, or by common 
 designation or name; if situate 
 witliin the limits of any incorporated 
 town, describing by lots or fractious 
 of lots; if without said limits, giv- 
 ing the number of acres, as nearly 
 as can be conveniently ascertained, 
 and the location and township where 
 situate; all improvements on public 
 lands, describing as near as possible 
 the location of such improvements, 
 provided, that when two or more 
 parties claim, or give a desci'iption 
 of the same land, it shall be assessed 
 to each party making such claim, or 
 giving such description according to 
 the estimated value of the claims of 
 each." Session Laws of Cal. 1861, 
 p. 425. It will be seen tliat the 
 statute expressly authorized a de- 
 scription " by common designation 
 
 or name." At an earlier period, the 
 statute of the same state had the 
 following provision on the same 
 subject: "Second — All real estate 
 and improvements on public lands 
 taxable to each, giving the metes 
 and bounds, or describing by lots 
 or fractions of lots, or otherwise, 
 all real estate and improvements 
 on public lands in any city or in- 
 corporated town, and giving the 
 quantity of acres as near as possible, 
 of each tract outside of such city 
 or town and the locality and town- 
 ship where it is situated; provided" 
 &c. An assessment under this stat- 
 ute failed to describe tlie land other- 
 wise than by name, giving the county 
 and name of the owner under the 
 proper heading for description, as 
 follows: "Clark's Ranch, situated 
 on the Auburn Road, two miles 
 south of Grass Valley, in Nevada 
 County;" and of this description 
 the court said: "Sec. 4 of the 
 Revenue Act requires that land out- 
 side of a city or incorporated town, 
 shall be described in the tax list or 
 assessment roll by giving its metes 
 and bounds, the number of acres, as 
 near as possible, and the locality 
 and township where it is situ- 
 ated. ... In the description of 
 the property no mention is made of 
 its boundaries, the number of acres, 
 or the township in which it is situ- 
 ated. The assessment was therefore 
 insufficient, and all the proceedings 
 under it were illegal and void." 
 Lachman ». Clark, 14 Cal. 133. 
 
 * Where there were three grants of 
 land, one kno'vn as the "Eancho el 
 
176 THE LAW OF ASSESSMENTS. 
 
 it is sufficient. Where the numbers of lots and blocks in an 
 original and an added plat are the same, unless the name or 
 other description of the added part is given, the description 
 will be held to apply to the original plat.'*'' But a descrip- 
 tion by lot or block, to be binding on the owner, must be 
 by an authorized or official plat or survey. A subdivision 
 made by one who is not the owner nor authorized by tlie 
 owner to make it, cannot be used as a description.* In 
 Illinois an assessment described the property as tlie 
 "East end of blocks 99 and 100," &c., and it was held to 
 be sufficient.^ This would seem to be contrary to the rul- 
 ings of other courts, already cited, on the doctrine of cer- 
 tainty of description. 
 
 Where headings to an assessment roll are double in their 
 character or meaning, being so arranged as to be adapted to 
 one of two or more subdivisional systems or surveys for 
 dividing lands within the jurisdictional limits of tlie as- 
 sessor — the words, letters and figures placed under such 
 headings will be presumed to have been intended and used 
 to describe a tract by the system or survey to which they 
 necessarily applj', and not to the one with which they have 
 no relation ; and if by such application a known parcel of 
 land within the jurisdiction of the assessor is described 
 
 Pinole," to the extent of four leagues Canada del Hambre,' being a so- 
 
 lying within larger exterior bounda- brante of the El Pinole and Las 
 
 ries, containing about seven leagues; Juntas Eanchos, after the same shall 
 
 one known as the " Ranclio las have been surveyed and located 
 
 Juntas," containing three leagues, equal to thirteen thousand three 
 
 lying within larger exterior bounda- hundred and foui'teen acres of land, 
 
 ries containing four leagues, which assessed at three dollars per acre, 
 
 were contiguous to each otlier, and amounting, to thirty-nine thousand 
 
 one known as the " llancho Canada nine hundred and forty-two dol- 
 
 del Hambre," to be made up out of lars" — it was held to be a sufficient 
 
 tlie so!;j-ante or surplus which should description, the court remarking 
 
 remain of the two grants first named, that the land was " well known ' by 
 
 and the assessment was of the last a common designation or name,' 
 
 named tract, described as follows: and the quantity and external 
 
 '■ Three leagues of land situate in bounds are known." People v. 
 
 said county" (county of Contra Crockett, 33 Cal. 152, 156. 
 
 Costa) " granted by the Mexican ^ "■ Lyman v. Anderson, 2 N. W. 
 
 government to Teodora Soto, and Rep. 734 (Neb.) 
 
 called or known by the common * Gage v. Eumsey, 73 111. 474 
 
 name or designation as the ' Kancho ' Chlniquy v. People, 78 111. 570. 
 
DESCRIPTION. 
 
 177 
 
 with reasonable certainty, it will be a sufficient description.^ 
 A description by owner's name and quantity is not suffi- 
 cient ; nor is a description by naming the owner of adjoin- 
 ing lands sufficient, without giving the location or, other 
 sufficient descriptive matter. 
 
 Sec. 83. Real Estate — where part of tract sold and part re- 
 tained: Each to be described. — Where part of a tract has 
 been sold and a part is retained, the assessment to the pur- 
 chaser must not only show the quantity, but the part sold, 
 by metes and bounds or other sufficient description, and in 
 the assessment to the owner of the part not sold, the de- 
 scription of that portion must be equally certain.^ If the 
 land consists of more than one subdivision the quantity in 
 each must be stated. Each description must be complete 
 within itself.^ When the description by original entry is 
 
 ^ The following description was contained in an assessment and judg- 
 ment : 
 
 Subdivison of section, 
 lot or block, . . . 
 
 S. 60 rods, W. i, S. E. J 
 
 Section 
 or lot. 
 
 30 
 
 Town or 
 Block. 
 
 119 
 
 Range. 
 
 22 
 
 Number of 
 Acres. 
 
 The Auditor's certificate of sale described the property as follows : 
 
 Subdivision 
 tion, 
 
 or Addi- 
 
 S. 69rods,W. i, S. E. J. 
 
 Section 
 or lot. 
 
 30 
 
 Township 
 or Block. 
 
 119 
 
 Bange. 
 
 22 
 
 Number of 
 Acres. 
 
 It was held, that the description 
 of the property under the headings 
 "subdivison," &c., being used and 
 understood in the state to denote a 
 piece of land running across the 
 subdivision number from east to 
 west and sixty rods in width from 
 north to south, measuring north 
 from the south line, being followed 
 by iigures under their respective 
 
 headings to designate a range, refer 
 to the numbers of a section and 
 township and not to a lot or block — 
 and that the description used was 
 sufficient. Bower v. O'Donnell, 29 
 Minn. 135. 
 
 1 Douglas V. Dangerfield, 4 Ohio 
 152. 
 
 2 An assessment was made in the 
 following form: 
 
 OWNEBS. 
 
 Eange. 
 
 Town. 
 
 Sec. 
 
 Lot. 
 
 Acres. 
 
 D. C. M. 
 
 Joseph Teomans 
 
 3 
 
 13 
 
 1 
 
 9&9 
 North Part. 
 
 100 
 
 3, 49, 5 
 
 12 
 
178 
 
 THE LAW OF ASSESSMENTS. 
 
 authorized, if there has been a division of such entry, it is 
 not suflBcient to describe the land by original entry and give 
 the quantity thereof, and the quantity in acres of the portion 
 sought to be assessed, "but the tract or subdivision to be as- 
 sessed must be designated by a separate and sufficient inde- 
 pendent description.' But a description must be read as a 
 whole. If an assessment be made of a number of lots con- 
 stituting a whole block or part of a block, the description 
 
 An official map in the office of tlie 
 County Auditor showed how the 
 land was located, and on the trial 
 arising out of this assessment, was 
 admitted as testimony subject to 
 objections. In the decision of the 
 case the court admitted that the 
 facts shown would be sufficient as 
 between proper parties to convey 
 the land, but added that it did not 
 follow that it would be sufficient to 
 maintain a sale of the land for taxes. 
 That " In order that such sales may 
 be sustained it is necessary that all 
 tlie requisitions of the law under 
 which they are made, should have 
 been complied with; and any depar- 
 ture from these requisitions will de- 
 feat the sale." The statute in force 
 at the time the assessment was made 
 required the assessor to "particu- 
 larly set forth the name of the 
 owner or owners, the number of 
 acres of land in each particular 
 tract, lot, section or subdivision 
 thereof, the range, township, sec- 
 tion, tract, lot or part thereof, or 
 the number of the entry, location, 
 survey or water course, as the na- 
 ture of the general or particular 
 surveys may require, so as com- 
 pletely to designate or identify the 
 same" — and in construing this stat- 
 ute, continuing, the court say : 
 " The great object here, is to have 
 the list so made out as to designate 
 and identify the land, and the differ- 
 ent modes of division in the state, re- 
 
 ferred to, whatever that division 
 may be, whether into entries and 
 surveys, or into townships, sections, 
 quarter-sections, tracts Or lots; the 
 number of acres in each division or 
 subdivision must be separately stated 
 and particularly set forth. If the 
 owner of the land does not furnish 
 the list, it is made the duty of the 
 assessor to make it out: and having 
 taken these lists and affixed a value 
 to the property, it is his duty to re- 
 turn an abstract of the same to the 
 county auditor. From this abstract 
 returned, the county auditor was to 
 make out a tax duplicate. That 
 there need be no mistake the thirty- 
 ninth section of the act prescribes 
 the forms which shall be made use 
 of by the officers whose duties are 
 prescribed in the act. These forms 
 show that both in the list and in the 
 duplicate, the precise number of 
 acres in each particular tract or lot, 
 or part thereof, must be particularly 
 set forth. In the case now before 
 us this was not done : the description 
 is, 100 acres, in the north part of 
 two lots. It does not show the 
 number of acres in each particular 
 lot, and is not, in this respect in con- 
 formity with the law. Perkins v. 
 Dibble, 10 Ohio 434. 
 
 'An assessment in Ohio, under 
 authority of the statute quoted in 
 note 2, of this section, was made in 
 the following form : 
 
DESCRIPTION. 
 
 17S 
 
 of the whole block may be read to ascertaia the meaning of 
 an}' part of the language used. 
 
 Sec. 84. Real Estate— InsufEcient description — -when fur- 
 nished by Owner — does not estop him— Ruling in California. — 
 Where, in obedience to statutory requirements the owner 
 furnishes a description of his realty, and the land is listed 
 for assessment by such description, which is imperfect and 
 insufficient, the owner is not estopped from setting up as a 
 defense, this insufficiency of description.^ A different rul- 
 ing has recently been made in California, as to personal 
 property, and it is there held that the party furnishing the 
 
 Name. 
 
 No. of 
 Entry. 
 
 Original 
 Proprietor. 
 
 Original 
 Quantity. 
 
 Water 
 Course. 
 
 Acres. 
 
 Kate. 
 
 Tax. 
 
 Haines, John . 
 
 4401 
 
 Haines, J. 
 
 170 
 
 Mad Kiver 
 
 73 
 
 2 
 
 39.2a 
 
 This description was held invalid 
 for uncertainty. In passing on this 
 question the court say: " In tliis 
 case the whole original entry was 
 listed by its then owner- Haines, and 
 perhaps was sufficiently described by 
 its number and water course, but 
 ninety-seven acres had been trans- 
 ferred to another name, leaving 
 seventy-three acres still standing to 
 Ilaines. What seventy-three acres? 
 In common or separate ? If sepa- 
 rate, in what part of the lot does it 
 lie? The answers to these ques- 
 tions materially affect the price. 
 Without them no such information 
 is communicated to the public as is 
 calculated to produce a fair compe- 
 tition, and no prudent man will offer 
 its value in his bid. The descrip- 
 tion, therefore, is not adapted to 
 promote a fair sale, and it must be 
 holden insufficient." Lafferty's 
 Lessees, u. Byers, 5 Ham. (Ohio) 457. 
 Where, in listing, the land was de- 
 scribed as 333 acres in the original 
 survey of 1,000 acres, but did not 
 specify the location of this 3.S3 acres 
 in the survey, the court held the de- 
 
 scription to be insufficient. An 
 effort had been made to cure the de- 
 fective description of the assessment 
 by recitals in the tax deed, but the 
 court held that the listing could not 
 be cured by such recitals. On this 
 point the court used this language : 
 "If the description in the listing, 
 then, be not sufficient, it may be 
 shown, to destroy the deed; nor can 
 such defect be cured by the descrip- 
 tion and recitals in the deed or other 
 proof. The land listed for taxation 
 must be described with sufficient 
 certainty to point out what particu- 
 lar land, and the description in the 
 deed is limited to the listing." Tur- 
 ner V. Yeoman, 16 Ohio 26. 
 
 1 This point was passed on in the 
 case of Turner ». Yeoman, 16 Ohio 24. 
 where the following language i's used 
 to express the opinion of tlie court: 
 " Now it might be contended with 
 much reason and force that, it being 
 the duty of the owner to list his 
 land for taxation he ought not to be 
 permitted to question a tax deed by 
 showing that he failed to perforiji 
 his duty, by giving a wrong or too 
 
180 
 
 THE LAW OF ASSESSMENTS. 
 
 list ought not to be heard to complain on that ground.* 
 The same ruling would doubtless be applied when the 
 description used was furnished by the owner, and the ques- 
 tion involved only his personal liability for the tax.^ Where 
 the assessor uses the same description which a claimant 
 uses in describing the boundaries of his claim of title or 
 right to obtain title from the government, deraigned 
 through a grant, the claimant is estopped from denying 
 that such is the description of the land so claimed.^ 
 
 Sec. 85. Keal Estate — what is not a "pertinent " description. 
 — Where the statute required a "pertinent description of 
 
 vague description. It would have 
 been well in the first instances, per- 
 haps, to have held this doctrine, but 
 the opposite principle has always 
 beun observed, and been too fre- 
 quently asserted to be disturbed, 
 except by legislative interference, 
 which would give it only a prospec- 
 tive effect. It is not described in 
 tlie listing as land held in common, 
 not as an undivided Interest of 333 
 acres in the original survey of 1,000, 
 hut simply as 333 acres somewhere 
 in the original survey of 1,000, with- 
 out specifying in what part of the 
 survey. It is precisely the same as 
 the case of Lafferty's Lessees v. 
 Jiyers, 5 Ohio 457. That was a list- 
 ing of 73 acres in a survey of 170." 
 Turner v. Yeoman, 16 Ohio 24. 
 
 -In a recent case, however, in 
 California, where the assessment re- 
 lated exclusively to personalty, and 
 the property was described as " min- 
 ing stock," valued at six hundred 
 thousand dollars, and where under 
 the law it was the duty of every 
 tax-payer to furnish a list of his 
 taxable property for assessment, 
 Justice Thobnton', in replying to 
 an objection to the assessment of 
 this item of property for want of 
 description, used the following lan- 
 guage: "It may be observed here 
 that the description in question was 
 made either from a list furnished by 
 
 defendant or some one on his behalf 
 and by his authority, or no list 
 having so been furnished, it was of 
 necessity made by the assessor. If 
 the description was taken from a list 
 furnished by the defendant or some 
 one on his behalf and by his author- 
 ity, he ought not to be heard to 
 complain of the insufficiency of the 
 description. If made by the asses- 
 sor, without the aid of such list, the 
 assessor has given a description as 
 certain as could reasonably be re- 
 quired of him, and under such cir- 
 cumstances the defendant's objec- 
 tion to the assessment should not be 
 regarded. We regard the assessment 
 as complying with the statute, and 
 sufficient." San Francisco ». Flood, 
 IW. C. E. 568{Cal.) 
 
 2" Law V. The People, 84 111. 143 
 (see note 1, § 86). 
 
 8 The Puget Sound Agricultural 
 Company claimed a tract of land 
 under a grant from Great Britain 
 prior to the treaty fixing the bound- 
 ary line between that government 
 and the United States, which grant 
 was recognized by the treaty but not 
 definitely located. The company 
 caused a suiTey and plat of the land 
 to be made and filed in the U. S. 
 Surveyor's office showing the bound- 
 aries of their claim. The assessor 
 of Pierce county, assessed this land 
 to the company by the description 
 
DESCRIPTION. 
 
 181 
 
 t1ie property so as to identify the same," it is not a suf- 
 ficient description of a piece or subdivisional or fractional 
 portion in a city or incorporated town, to describe it by 
 quantity within a block or between certain streets, or a 
 certain quantity in a section or subdivision of a section, 
 without specially describing it. The description must be 
 complete within itself, to identify the land as a separate 
 piece or tract from the land adjoining it.^ 
 
 Sec. 86. Real Estate — Description by ■which a Surveyor can 
 identify it.— There is no reason wh}' the requirements for the 
 assessment of a tract of land, for the purposes of taxation 
 should be any more exacting, in order to pass the title in a 
 sale for delinquency, than in a deed between the owner and 
 
 contained in their own survey and 
 plat, and the court held that the 
 company was estopped from denying 
 that this was not a description of 
 the land claimed hy the company. 
 Puget S. Ag. Co. V. Pierce County, 
 1 Wash. 167. 
 
 1 Where the description was "30 
 feet between Chestnut and Elizabeth 
 streets," it was held not to be suffi- 
 cient. "The number of the lot is 
 not given. It is not stated whether 
 it is an entire lot or a part of a lot. 
 It does not appear whether it is 30 
 feet front or 30 feet square, and if 
 30 feet front it is not stated upon 
 what street it fronts. There is in 
 fact nothing in the description by 
 which the land can be identified." 
 Hannel v. Smith, 15 Ohio 134:-1.50. 
 A listing in the following form was 
 held to be insufficient: "56 acres in 
 the S. E. quarter of section 8, Town- 
 ship 12, Kange 13." Richardson 
 ?;. The State, 4 Blackf . 51. In Maine 
 an assessment was made as follows ; 
 "Forty acres belonging to Doctor 
 Cyrus Conant, valued at $275," and 
 in the inventory was the statement 
 with these words added: "two lots; 
 one joins lands of Ebenezer Kicker 
 and the highway; the other, N. 
 Low, Charles Emmons and the 
 
 road." In passing on the sufficiency 
 of this description the court useil 
 the following language: " The no- 
 tice of the treasurer's sale contains 
 no sufficient description of the estate 
 to be sold. It contains the name of 
 the owner, the number of acres, 
 valuation, and amount of the tax, 
 but does not give the number of the 
 lot, or the range, or any boundary 
 or other facts by which a purchaser 
 could obtain sufficient knowledge of 
 the identity of the land, to form an 
 intelligent judgment of the value. 
 Even ' the short description taken 
 from the inventory ' as required by 
 the statute, is not inserted in the 
 notice. This being a proceeding in 
 invitum, the rule of law is that the. 
 notice should contain such a descrip- 
 tion of the land as will enable the 
 owner and purchaser to identify it 
 witli reasonable certainty." Nason 
 V. Ricker, 63 Me. 383. See cases 
 cited: Greene v. Lunt, 58 Me. 533; 
 Hayden v. Foster, 13 Pick. 492; 
 Wallingford v. Fiske, 24 Me. 480. 
 Where the land was described in the 
 assessment as "land, east corner of 
 Congress and Exchange streets, ex- 
 tending through to Market," a simi- 
 lar ruling was made. Bingham o, 
 Smith, 04 Me. 451. 
 
182 
 
 THE LAW OP ASSKSSMENTS. 
 
 a purchaser of the same land.^ In all cases of contract by 
 or between an owner and another, affecting the title to real 
 estate, if a survej'or can identify the land, or if it can be 
 ascertained what particular land the parties intended to 
 embrace within their contract, by extrinsic evidence, and 
 which may be by parol — it is sufficient to pass the title, or 
 to authorize the enforcement of the contract. The rule, it 
 is submitted, ought to be the same, as to assessments.^ 
 ^ In Illinois it has been decided validity of tliis assessment tlie court 
 
 that any description by which a sur- 
 veyor can identify the property with 
 reasonable certainty, with or with- 
 out extrinsic evidence, is a sufficient 
 description in an assessment in real 
 estate. People v. Stahl, 101 111. 346. 
 In New Jersey where the descrip- 
 tion was in the following form — 
 "Buildings, 59 acres on north side 
 of St. George's Avenue in Koad 
 District No. 3, School District No. 
 4," it was held sufficient, and that 
 under this description in an assess- 
 ment the land might be subjected to 
 saAe. State v. Mulford, 43 N. J. 
 L. 550. It has also been held in 
 Illinois that where the description 
 of the land is uncertain, it is not a 
 defense to a suit against the owner, 
 for the taxes. He could tender a 
 receipt containing a correct descrip- 
 tion, and the tax collector could be 
 compelled by mandamus, upon pay- 
 ment or tender of the taxes, to sign 
 it. Law V. The People, 84 111. 143. 
 These decisions are in conflict with 
 
 used the following language: "It 
 is the duty of the courts to give 
 effect to the intent of the parties, if 
 it can be done consistently with tlie 
 rules of law. In an ordinary deed, 
 wlien twenty feet of a lot on a par- 
 ticular street is conveyed, it is un- 
 derstood to mean a strip of land 
 twenty feet wide, and running back 
 the whole distance of the lot, be the 
 same more or less. Tlie con- 
 struction must be the same ia 
 a tax deed. The doctrine of strict 
 construction, as applied to naked 
 statutory powers, has no appli- 
 cation to a question like this." 
 Mr. Blackwell, in his work on tax 
 titles remarks, of this case, that it 
 is not supported by any authority, 
 and that it is directly in conflict 
 with adjudged cases. (Black. Tax 
 T. 125, n. 2. ) Since then have fol- 
 lowed the cases of Chiniquy v. 
 People, 78 111. 570; Law v. People, 
 80 111. 268, and People v. Stahl, 101 
 111. .346, showing an adherence to 
 
 the doctrine that a description which the ease of Blakely v. Bestor, and it 
 
 would be good in a deed or contract 
 as between the parties thereto, is 
 not sufficient as a description in an 
 assessment for taxation. The first 
 case in the Illinois courts advancing 
 this doctrine is that of Blakely v. 
 Bester, 13 111. 708, where the de- 
 scription was as follows: "20 feet 
 on Main street by 72 feet deep, com- 
 mencing 40 feet from tlie alley, un- 
 divided one half lot 6, block 7, 
 Peoria," and in deciding upon the 
 
 may now be safely asserted that in 
 Illinois this doctrine — the rules of 
 construction, upon a deed made be- 
 tween parties, and a tax deed, as to 
 the sufficiency of the description, 
 and how far a defective or ambigu- 
 ous description may be aided by 
 parol or other evidence — are the 
 same. And there is no good reason 
 why this rule should not become 
 the general doctrine. 
 2 See further, sec. 94 A desorip- 
 
DESCBIPTION. 
 
 183 
 
 Oral evidence may be used to identify the land described 
 in an assessment and a tax deed, with the land to which the 
 assessment applies.® 
 
 Sec. 87. Real Estate — '? Description by Boundaries or in some 
 otter ■way by which it may be known."— Under a statute mak- 
 ing it the duty of assessors to designate or describe the 
 
 tion in the words — " The west part 
 of the X. E., N. E. sec. 35, Town 23 N. 
 E. 6 E.; 30 acres "—held sufficient— 
 the SO acres of the west part of the 
 subdivision — ^meaning all bnt the 
 east 10 acres. Hannah, Adm'r, v. 
 Collins, 94 Ind. 203. 
 
 ' In a case in Oregon the description 
 in the tax deed was in the following 
 language: "Thirty-seven and one 
 half acres of land in section 11, T. 
 1 S., E. 1 E., known as 'Smith's 
 Farm,' in Multnomah county, state 
 of Oregon." The deed also con- 
 tained a recital as follows: " Tlie 
 said property having been duly as- 
 sessed for the fiscal year 1865 to the 
 said T. A. Smith." This deed was 
 offered in evidence by the defendant 
 to sustain his right to retain posses- 
 sion of the tract of land involved in 
 the action. Plaintiff objected on the 
 ground that the deed contained no 
 proper description of the land. De- 
 fendant's counsel stated that he 
 would show that in the month of 
 June, 1866 (date of sale of the land 
 for delinquency), said land was 
 known as Smith's Farm, in the 
 neighborliood whore it was situa- 
 ted, wjiereupon the deed was al- 
 lowed to be read in evidence. A 
 witness was called, who was asked 
 whether he knew where a tract of 
 land lies, described as " 37i acres of 
 land in section 11, T. 1 S., E. 1 E., 
 known as Smith's Farm," to which 
 lie answered: "I know a tract of 
 ■that size that Smitli pretended to 
 own; he paid mc for it; we always 
 called it Smith's land — that piece of 
 ground. This piece of land was 
 
 known there as Smith's land " (re- 
 ferring to June 6, 1866), " and it is 
 known to-day I believe as (hat. I 
 never heard of any other tract of 
 land In that section that has been 
 known as Smith's land, or as the 
 Smith land." There was no other 
 evidence given tending to prove that 
 the tract was ever known as " Smitli's 
 Farm." To show the insufficiency 
 of the description in the tax pro- 
 ceeding, plaintiff introduced the as- 
 sessment roll for 1865, when the land 
 was assessed ; also the notice of tax 
 sale. The description in these were 
 the same as the deed, excepting the 
 words, "known as Smith's Farm." 
 The coui't gave the following instruc- 
 tions to the jury: " If you find the 
 fact to be that there was in section 
 11, T. 1 S., E. 1 E., and on the do- 
 nation land claim of Gideon Til)- 
 betts" (both parties deraigned 
 through the Tibbetts' donation claim 
 outside of the tax deed), "a parcel 
 of land conforming in size and shape 
 to the land in controversy, and known 
 in the year 1866, about July of that 
 year, as 'Smith's Farm,' and that 
 there was no other similar piece of 
 land in that section that was so 
 kno^wTi, then your verdict should be 
 for defendant." Tlie jury found, a 
 verdict for the defendant, which sus- 
 tained the tax deed. On appeal the 
 Supreme Court sustained this in- 
 struction to the jury and the other 
 ruling as to description. The court 
 used the following language : " After 
 a very thorough consideration of the 
 instruction relating to the effect of 
 said tax deed, in case the jury found 
 
184 
 
 THE LAW OF ASSESSMENTS. 
 
 land, " by boundaries, or in some other way by which it may 
 be known," it is necessary to give, in the assessment, a de- 
 scription which, within itself, will enable surveyors or 
 other experts to ascertain and locate the land.^ 
 
 Sec. 88. Real Estate — a false call in description.— It has 
 already been noticed, that a description which would be 
 
 that there -was a parcel of land an- 
 swering to the description contained 
 in it, we have concluded that the 
 Circuit Court properly gave it. The 
 evidence to support it was very 
 slight and unsatisfactory; but when 
 there is any evidence, however 
 meagre, calculated to prove any 
 fact in a case, it becomes the prov- 
 ince of the jury to weigh it and de- 
 termine its effect." Smith v. Shat- 
 tuck. 7 rac. Rep. 33.^-340 (Or.) It 
 will be noticed that in tliis case, 
 without the words, "known as 
 Smith's Farm," there is nothing in 
 the description used in the assess- 
 ment to identify this 371 acres from 
 any other land in the section. The 
 assessment, having been made to 
 Smith, the decision is evidently based 
 on the theory that it was competent 
 to show by oral evidence that Smith 
 
 owned a tract of land in the section 
 designated, " conforming in size and 
 shape " to the description contained 
 in the assessment, notice of sale and 
 deed, leaving out the words "known 
 as Smith's Farm." This is probably 
 as far in that direction as the cases 
 have gone. 
 
 1 " An accurate designation or de- 
 scription of the land assessed is 
 equally essential to the validity of 
 the assessment, and without cer- 
 tainty in that respect, no foundation 
 is afforded for future action." Tall- 
 man V. White, 2 Comst. (2 N. Y.) 66. 
 The same question, sufficiency of 
 description in an assessment of real 
 estata, was passed on, in a late case 
 by the same court. The following is 
 the description of the land given in 
 the assessment: 
 
 
 
 
 
 
 
 
 Distance 
 
 
 
 
 
 
 
 
 
 *3 
 
 
 from what street. 
 
 
 
 
 
 
 
 
 
 *5 
 
 
 
 p. 
 
 
 ■s 
 
 s 
 
 
 
 
 !3 
 
 
 
 3 
 
 4 
 
 o 
 
 p 
 t 
 
 
 CO 
 
 
 
 o 
 
 i 
 
 
 
 i 
 
 o 
 
 i 
 
 n 
 
 
 o 
 
 s 
 
 o 
 
 m 
 
 ta 
 
 ta 
 
 J 
 
 ^ 
 
 03 
 
 Pq 
 
 O 
 
 m 
 
 H 
 
 H 
 
 O 
 
 93 
 
 
 
 185 
 
 N. E. 
 
 Ex- 
 
 
 
 
 
 
 
 
 
 
 65. 
 
 30 
 
 rear. 
 
 change. 
 
 S. 
 
 207* 
 
 E. 
 
 Beak. 
 
 8,500 
 
 44 
 
 10 
 
 In a petition to condemn a portion 
 of the same land for the necessary 
 uses of a railroad, it was correctly 
 described as follows: " All that cer- 
 tain piece or parcel of land, situate 
 in the city of Buffalo, county of 
 Erie, and state of New York, being 
 part of Outer Lot number ninety- 
 three, and bounded and described as 
 
 follows : Beginning in the southerly 
 line of Exchange street, at the point 
 of intersection thereof with east- 
 erly line of a lot of land for- 
 merly owned by Lewis Le Conteulx, 
 now deceased, and which point is 
 supposed to be five hundred and nine 
 and eight-twelfths feet distant east- 
 erly at right angles from the easterly 
 
DESCEIPTION. 185 
 
 sufficient in a deed of conveyance of real estate, between 
 parties, would not be sufficient in an assessment of the 
 same land. The assessment is the initial proceeding to 
 exact from the owner, without his consent, a sum of money 
 as a tax. In a deed between individuals, a part of the 
 description may be rejected on account of its falsity, if 
 after its rejection there is enough left to show what the 
 owner intended to convey, and it will pass the title. But 
 in an assessment the rule is different ; and the description 
 in a deed which would pass the title, in an assessment, cul- 
 minating in a deed of the land for delinquency, would fail 
 to divest the owner of his title.^ A false call in an assess- 
 ment, which would not affect the validity or sufficiency of 
 a deed as a conveyance of the land, is fatal and renders it 
 void, if it would probably mislead a purchaser of it, at a 
 delinquent tax sale, or the owner, in an attempt to save it 
 from the effects of such sale, by redemption.^ 
 
 Sec. 89. Real Estate — a false call in description — continued. 
 — But it is not every false call, introduced into the descrip- 
 tive portion of an assessment of real property that invali- 
 dates it. Where a full and true description is given and a 
 
 line of Washington street; thence procedure. It is intended to be no- 
 76 deg. east, along tlie southerly line tice to the owner of the burden cast 
 of Exchange street sixty-five feet; upon his lands, and limits the title 
 thence south 76 deg. and 30 min. of a purchaser, whose bid discharges 
 east one hundred and fifty-nine feet the obligation which the owner neg- 
 to the Little Buffalo creek; thence lected to fulfil. Suppose the rail- 
 down the said creek southwesterly road company had followed the 
 thirty-two feet; thence north 15 deg. description contained in the assess- 
 and 45 min. west, one hundred and ment rolls and tax certificates, could 
 ninety-four feet to the place of be- it be pretended that it would satisfy 
 ginning, containing .... more or the statute which requires a descrip- 
 less." Upon the sufficiency of the tion of the real estate sought to be 
 assessment description the court acquired? There is given a fronton 
 used the following language : "The Exchange street, but no definite 
 testimony of surveyors given to the courses for the remaining sides of 
 referees sustain the finding that the the lot, nor other means of identifi- 
 descriptiou for taxation is insuffi- cation, or any lines by which the lot 
 cient to enable any one to locate the can be inclosed. Therefore it is de- 
 land, and that being the case I am fective." Matter of Application of 
 unable to see how proceedings under N. Y. & H. R. R. Co., 90 N. Y. 347; 
 it can be sustained. It marks the Id., 70 N. Y. 131. 
 first step, and cannot be departed ^Ante, §80. 
 from at any subsequent stage of the ^ An assessment described the land 
 
186 
 
 THE LAW OP ASSESSMENTS. 
 
 false call added, the assessment will not, for that cause, be 
 rendered invalid. The false call will be rejected as surplus- 
 age. It is where the false call is not calculated to mislead 
 the landowner and others who may become interested in 
 the property assessed, that a false call will be rejected and 
 the assessment upheld.^ 
 
 Sec. 90. Real Estate— amending description.— It has already 
 been stated, in this chapter, that the entire proceedings, 
 as follows: "All that certain piece the head of the village of Lodi, be- 
 
 ef land situated in the county of 
 Onondagua, described as follows: 
 Block number 29 in the village of 
 Lodi, which is bounded west by Da- 
 vid S. Colvin's; thence north eight 
 rods to the lands of Philo D. Mickles 
 and Company ; east by lands of Levi 
 Chapman, and south by Foot street." 
 This description was correct, except 
 as to the name of the village, which 
 was Syracuse, and not Lodi; and for 
 this falsity it was held that the tax 
 could not be enforced. In passing 
 upon the question the court used the 
 following language : " In the assess- 
 ment of the lands in question there 
 was a fatal falsity in describing the 
 parcel of land to be taxed. It was 
 described as lying in the village of 
 "Lodi, when in fact it lay elsewhere. 
 It was situate in a tract known as 
 Syracuse and not in Lodi, which was 
 known as a different place, although 
 both were in the same town. The 
 lands to be sold for taxes are neces- 
 sarily entered and arranged in the 
 controller's books, and in the adver- 
 tisements of sale and redemption, 
 according to their respective locali- 
 ties, under the heads of counties, 
 towns, villages or tracts having 
 known names. The falsity in the 
 description of the land in question 
 would obviously, and of course, 
 cause it to be entered in the con- 
 troller's books out of its proper 
 place. Instead of being placed un- 
 der the appropriate head of Syracuse 
 village, it woiild be arranged under 
 
 cause it was falsely described as situ- 
 ate there. The same error would, 
 from the same cause, occur in the 
 notices of sale and redemption. . . . 
 It is plain that the misdescription 
 would probably mislead, and it is 
 therefore fatal to the validity of the 
 assessment, and consequently to the 
 validity of the sale and conveyance 
 by the controller. Tallman v. White, 
 2 lif. Y. 70-72. 
 
 ^ An assessment described the land 
 as follows: "Commencing at the 
 northeasterly corner of Center and 
 Guerrero streets; running thence 
 easterly on Corbett, two hundred 
 feet; thence at right angles north- 
 erly," &c., giving correct metes and 
 bounds of the entire tract assessed. 
 The false call consisted of the words 
 " on Corbett street." The court 
 found as a fact, that a line drawn 
 easterly, that is, due east from the 
 corner of Center and Guerrero streets 
 would run along Center street 
 and that it was impossible that it 
 should do otherwise — the corner, 
 the direction of the streets toward 
 the cardinal points, and their conse- 
 quent intersection at right angles 
 being given. Justice Shaftbb, 
 after noticing the ruling in Tallman 
 V. White, 2 N. T. 70, and giving it 
 his approval, proceeded to say that 
 " The test, then, to which every 
 false call occurring in the course of 
 tax proceedings is to be subjected, 
 is this: Has it probably had the 
 effect to mislead the land owner in 
 
DESCBIFTION'. 187 
 
 re] 11 ting to the assessment of both real and personal pro- 
 perty, were subject, and in subordination, to statutory pro- 
 vision. Except, so far as limited by the organic law, the 
 legislature may, from time to time, provide the rules and 
 regulations to govern in the assessment of persons and 
 property, and the collection of taxes levied for legitimate 
 purposes. It is competent for the legislature to provide, 
 by statute, for the amendment of any matter pertaining to 
 the assessment of real or personal property for taxation. 
 The legislature of Nevada provided for the collection of 
 delinquent taxes, by suit, in a court of competent jurisdic- 
 tion, and. that the district attorney might, in all such suits, 
 in the summons and complaint, make "additional, and more 
 certain, description than that contained in the assessment 
 roll, of the real property assessed ; . . . and where such 
 additional description is made, evidence may be introduced 
 to prove that the property, described in the summons and 
 complaint, is the same property as that described in the 
 assignment roll." This statute was held, hj the supreme 
 court of Nevada, to be valid.^ The legislature of New 
 
 relation to the land assessed, adver- feet situated on Last Chance Hill." 
 
 tised and sold ? lu the case at bar, The complaint described the prop- 
 
 the description in the assessment erty as follows : " Also those certain 
 
 roll begins at a point, fixed with en- mining claims situate on Last Chance 
 
 tire precision, and runs therefrom Hill, in said county, and known as 
 
 due east two hundred feet. The ' Real Del Monte,' ' Aurora,' ' Last 
 
 superadded description of that line Chance,' ' Yellow Jacket,' ' Pond,' 
 
 " along Corbett street," was not, in 'Sunbeam,' 'Western Summit,' 
 
 our judgment, calculated to mislead ' Crockett,' ' Chihuahua,' and ' Mid- 
 
 the landowner, and for the manifest night,' containing in all forty-four 
 
 reason that it was impossible that hundred feet, more or less, and being 
 
 the call should be true. The call the same property described in the 
 
 was not only false, but absurd, and assessment roll of said county for 
 
 that too, in the light of facts ap- the year 1864." It was objected at 
 
 pearing upon the face of the general the trial, to the introduction of evi- 
 
 description of the corner line." dence to prove that the property 
 
 Bosworth V. Danzien, 25 Cal. 297. described in the complaint, was the 
 
 1 In a suit brought under this stat- same as that described in the assess- 
 
 ute to enforce an assessment which ment roll, that it varied and added 
 
 was defective in description, the fol- to the language used in the assess- 
 
 lowing were the facts. The real ment roll; but in reply to these 
 
 property consisted of mining claims, objections the court said: "There 
 
 and were described as follows : "one is no contradiction between these 
 
 mine of four thousand four hundred descriptions. There may be many 
 
188 THE LAW OF ASSESSMENTS. 
 
 Jersey also authorized amendments and corrections to be 
 made to assessment in matters of form, by the courts, in 
 actions or proceedings to enforce payment of the taxes.* 
 
 Sec. 91. Real Estate— Description of Building of more than 
 one story, owned in severalty.— Where the realty consists of 
 buildings of more than one story in hight, the stories built 
 one over the other, and owned in severalty by different 
 persons, in the eye of the law they are treated as though 
 they consisted of detached, separate buildings.^ In de- 
 scribing property of this character for taxation, the assess- 
 ment should be made of the apartment, or story, owned by 
 each person, and should embrace a full description of the 
 land upon which the building stands, including also that 
 portion of the tract not covered by the building, but owned 
 with, and as part of it. With the additional matter of 
 description necessary to describe the separate ownership of 
 each, the same rules of description apply, as in other cases.* 
 
 Sec. 92. Real Estate— when a portion, used for religious or 
 other purposes, and not taxable. — Where the property of reli- 
 
 claims in one mine, and where many ^ See post, § 191. 
 
 claims are united or consolidated in ' Where tlie facts were that the 
 
 the hands of one company, there is defendant owned in fee a room on 
 
 no impropriety in calling it one mine the lower floor of a dwelling house 
 
 or one mining claim. The descrip- and of the cellar under it, and the 
 
 tion in the assessment roll was gen- plaintiff owned a chamher over this 
 
 eral. The law of 1864r-5, page 163, room and the remainder of the 
 
 expressly authorizes the district at- house, the court held, with respect 
 
 torney to give, when he brings suits to the character of their ownership, 
 
 for delinquent taxes, a more particu- that " Although the parties consider 
 
 lar description of the property on themselves as severally seised of 
 
 which the taxes remain unpaid than different parts of one dwelling 
 
 that used in the assessment roll, house, yet, in legal contemplation, 
 
 This, the district attorney in this each of the parties has a distinct 
 
 case has done. He alleges, however, dwelling house adjoining together, 
 
 that his description embraces the the one being situated over the 
 
 same property described in the as- other." Loring v. Bacon, 4 Mass. 
 
 sessment, and we must presume, in 575. 
 
 favor of the judgment in the court ^In a case, involving the legality 
 
 below, that he established that fact, of an assessment of part of a build- 
 
 until it is shown that the description ing erected for the use of a religious 
 
 in the complaint embraced ground society, of which a portion was 
 
 not included in the assessment." rented for secular purposes, the 
 
 State V. Keal Del Monte G. & S. M. assessment of " six stores under 
 
 Co., 1 Nev. 523. church and vestry," no question 
 
DESCKIPTION. 189 
 
 glous, social or literary societies, so far as used for such pur- 
 poses, is exempt from taxation, and a building consisting of 
 separate apartments or stories one over the other is whollj'- 
 owned by such a society, with the tract of land whereon 
 it is built, and only a portion of the building is used for the 
 purposes entitling propertj'- to exemption, and other portions 
 are used for ordinary secular purposes, it would seem, in 
 the absence of statutory regulations, that the whole should 
 be included in the description, and the portion used for sec- 
 ular or ordinary purposes only, described and included in 
 the valuation.^ 
 
 Sec. 93. Real Estate — Description, aided by Headings of 
 Assessment Roll. — The description in an assessment may be 
 aided by and read in the light of the headings of the assess- 
 ment roll. If it appear by the headings that the assess- 
 ment is made of the lands embraced within a tract known 
 by a name, and the name appears sufficiently stated in the 
 headings, that which is written in the appropriate columns 
 will be considered as lands of such tract without again writ- 
 ing the name. And where the statute requires the land, if 
 known by a name, to be described by such name, or if a sub- 
 divisional part of such tract, that it be described in such 
 manner that it will appear to be a specific part of such 
 tract — and the land be a lot or fractional part of a lot 
 • within a town which is recognized in the public statutes, 
 and judicially recognized by the courts, a description ac- 
 
 being raised as to the suflaciency of beside the other." Proprietors of 
 
 the description, only on the legality Meeting-house v. Lowell, 1 Met. 
 
 of the tax, the court used the fol- 540. 
 
 lowing language, as to the taxable ' Detroit Toung Men's Society v. 
 
 character of the part of the building Mayor, 3 Mich. 173. A different 
 
 assessed: " But the plaintiffs retain rule was adopted in the case of the 
 
 these six tenements, being the story Proprietors of the South Congrega- 
 
 nnder the church and vestry, which tional Meeting House in Lowell v. 
 
 are let as stores, and of which they City of Lowell (1 Met. 538) where 
 
 take the income, appropriating it to the assessment described that por- 
 
 reduce the sum of money borrowed tion of the property charged to be 
 
 for building the houses. . . . There subject to taxation ; but no question 
 
 may be several distinct tenements seoms to have been raised as to the 
 
 under the same roof ; and tenements sufficiency of the description. (See 
 
 are as essentially distinct when one ante, § 91. ) 
 is under the other, as when one is 
 
190 
 
 THE LAW OP ASSESSMENTS. 
 
 cording to the plan or plat of the town will answer the re- 
 quirements of the statute.^ 
 
 Sec. 94. Real Estate — Deacription — Certainty Required — 
 Reference to a Diagram, when allowed. — A description to sus- 
 tain an assessment must be certain within itself, or when a 
 
 ' An assessment for a road tax de- 
 scribed the land as being "lot fifty- 
 four, town one, Range three, acres 
 150." There was a page of the roll, 
 headed: " List of lands belonging 
 to non-residents In township num- 
 ber one, range three, formerly 
 known as the Holland Land Com- 
 pany's lands," and under such head- 
 ing, a list of lands with valuation, 
 &c., including lot " fifty-four, town 
 one, range three," assessed for state 
 and county tax. This list was con- 
 tinued on the next page which was 
 headed, "list of lands situate in 
 township number two, range tliree, 
 of the before-mentioned lands." 
 On the sixth subsequent page fol- 
 lowed, under a, heading, "Non- 
 resident highway district, number 
 ten," a list of lands in towns one 
 and two, range three — ten lots in 
 all; and on the next page, headed, 
 "Non-resident highway district, 
 number six," follows a list of lots in 
 town one, range three, including this 
 lot fifty-four. There were no other 
 assessments or lists of land inter- 
 vening between the lands assessed 
 as Holland Land Company's lands, 
 so called, and the assessment of the 
 highway taxes for which the assess- 
 ment was made. No owner was 
 assessed in either place, but the lot 
 was assessed as non-resident in two 
 places, contiguous, under one head- 
 ing, naming the Holland Land Com- 
 pany's lands, and no other name or 
 designation of a different tract came 
 between the two. The statute relat- 
 ing to the assessment of non-resi- 
 dent lands provided that " if the 
 land to be assessed be a tract which 
 
 is subdivided into lots, or be part of 
 a tract which is so sub-divided, the 
 assessors . . . shall designate it by 
 its name, if known by one," etc. 
 And it was held that the assessment, 
 by this description, was sufficient. 
 The ruling on this point was ex- 
 pressed in the following language : 
 "The intention of the statute was 
 that the assessment should contain 
 a true designation or description of 
 the land, so that the purchasers at 
 the sale might be able to find and 
 locate the same, and that the owner 
 might know that his land was adver- 
 tised. The lot in question was a 
 ' part of a tract ' which had been 
 subdivided. It appears from the 
 statute (Laws of 1837, ch. 268) that 
 the town of Portville was a part of 
 the territory of the Holland I-anrl 
 purchase, and it is recognized in the 
 public statutes of the state that this 
 tract is divided into townships and , 
 ranges and then subdivided into 
 lots, which are numbered. By giv- 
 ing the known name of the part 
 which is divided into lots, the spirit 
 and intent of the statute is fully 
 carried out. The designation of this 
 lot as ' number fifty-four, town one, 
 range three, acres 150,' is a state- 
 ment of all that the law requires, 
 and furnishes full information to all 
 parties interested as to the lot in- 
 tended to be assessed. ... It ap- 
 pears that there were two townships 
 of land in the Holland purchase, in 
 Portville, and there could be no mis- 
 take, I think, as to what lot Was 
 intended." Colman v. Shattuck, 62 
 N. T. 361. 
 
DESCKIPTION'. 
 
 191 
 
 diagvam or other matter of description may be referred to, it 
 must contain a statement of facts or reference to something 
 by which it can be made certain. It must furnish the means 
 by which it can be made certain by competent evidence 
 aliunde, or the assessment will be void for uncertainty.^ 
 When the description consists in part, of a street, and the 
 assessment requires a diagram, both need not, necessarily, 
 be on one piece of paper, but the description may refer to 
 the diagram as part of the description, and both will be 
 considered, as constituting the description." If the tract 
 or parcel be a portion of a larger tract or parcel, the de- 
 scription must contain language which will enable a sur- 
 
 1 An assessment of real estate of a 
 non-resident was described thus : "2 
 acres of land, house, boom, and 
 privileges; shore of lots one and 
 two." In deciding upon the suffi- 
 ciency of this description, the court 
 said: "The description in this case 
 does not conform to either of these 
 requirements. It does not give any 
 courses, distances or monuments, 
 nor does it refer to the ownership, 
 occupation, or use of the premises, 
 or any name or plan by which they 
 can be identified. It afifords no nu- 
 cleus by which parol evidence may 
 be legally available to render it cer- 
 tain or even probable where the ' 2 
 acres ' are located on the face of the 
 earth, or what 'house, boom or 
 shore' was intended. As the de- 
 scription is vague and uncertain 
 upon its face, and affords no means 
 by which it can be made certain by 
 competent evidence aliunde, the 
 assessment is void for uncertainty." 
 Orono ». Veasy, 61 Me. 431, 433. 
 
 2 In an action to enforce a street 
 assessment, it was objected that the 
 assessment did not contain a descrip- 
 tion of the property, the particular 
 point of the objection being that the 
 assessment referred to a diagram 
 attached to it. In answer to this 
 
 objection, the court used the follow- 
 ing language: "There is no require- 
 ment that the assessment shall be 
 upon one sheet of paper only, and 
 if the description referred to had 
 been upon a separate paper, attached 
 to the paper containing the state- 
 ments of the amounts assessed, it 
 would probably not have been con- 
 sidered objectionable. The fact that 
 the diagram is also a requirement of 
 the law, does not vitiate the refer- 
 ence for the purpose of helping out 
 the description in the assessment. 
 For that purpose, it may be regarded 
 as an exhibit, attached to and made 
 a part of the assessment. But the 
 very purpose of requiring a diagram 
 to be attached to the assessment is 
 to aid the description given in the 
 assessment, and to enable persons 
 interested to ascertain with greater 
 certainty what property was assess- 
 ed. The assessment gives the num- 
 bers of the lots as shown upon the 
 diagram, the frontage of each lot, 
 and refers to the diagram for further 
 description. Taking the assessment 
 and the diagram referred to in it, 
 together, we have no trouble in 
 making out the description of the 
 lot, precisely as given in the com- 
 plaint. Hewes v. Reis, 40 Cal. 261. 
 
192 
 
 THE LA"W OF ASSESSMENTS. 
 
 veyor or expert, to identify the particular portion or parcel 
 intended, otherwise the assessment will be invalid.' 
 
 Sec. 95. Description of Railroads. — Tlie description of a 
 Railroad, where it is required that it be described " By 
 metes and bounds, or other description sufficient for identifi- 
 cation," is suificient, where the termini, courses, and dis- 
 tances are given. The width of tlie road need not be given 
 when the law fixes the width.^ 
 
 Sec. 96. statutory Requirements to assess in parcels not ex- 
 ceeding 640 acres. — Where the statute requires that lands be 
 assessed in parcels or subdivisions not exceeding 640 acres, 
 and that tracts containing more than 640 acres, which 
 have been sectionized by the U. S. government, shall 
 be assessed by sections and fractions of sections, it is no 
 part of the requirement that each fraction of a section be 
 assessed as a single tract, but two or more, when the facts 
 or circumstances authorize it, may be united and treated as 
 one tract; provided they do not in the aggregate, exceed 
 640 acres.^ 
 
 'The description: "a tract of 
 land entered by Frazier," in section 
 13, township 13, range 7, is hope- 
 lessly defective. This is neither a 
 description by "township, range, 
 section or fractional section," nor is 
 it a description by ' metes and 
 bounds,' nor is it otherwise suffi- 
 cient to identify the land." Lake 
 County B. Sulphur Banks Mining Co. 
 4 W. C. K. 189 (Cal.) But the de- 
 scription as follows: "West frac- 
 tional i and S. E. J- of (mine) section 
 5, township 13, range 7, 133 acres," 
 was held in the case to be sufficient, 
 being in effect a statement that all 
 the subdivisions are a mine. Id. W. 
 C. R. 189 (Cal.) 
 
 1 S. F. •& N. P. E. R. Co. v'. State 
 Board, 60 Cal. 32. "The descrip- 
 tion of the ' roadway ' is sufficient. 
 The statute reads: 'By metes and 
 bounds, or other description suffi- 
 cient for identification.' Here, the 
 
 termini, courses and distances are 
 given. The law fixes the width." 
 
 J Section 3628 of the Political Code 
 of California is in the following 
 words and figures: "Land shall be 
 assessed in parcels or subdivisions, 
 not exceeding 640 acres each, and 
 tracts of land containing more than 
 640 acres, which have been section- 
 ized by the U. S. government, shall 
 be assessed by sections and fractions 
 of sections." In construing this 
 provision of the Code, where the 
 assessment had united fractions of 
 sections as a single tract, which did 
 not, in the aggregate, exceed 640 
 acres, the court used the following 
 language: " Nor does it appear that 
 subdivisions exceeding in the aggre- 
 gate quantity 640 acres, are assessed 
 as a single tract. It is true the West 
 fractional half and the Southeast 
 quarter of section 5, township 13, 
 range 7, containing 436 acres, is as- 
 
DESCEIPTION. 
 
 les 
 
 sessed with the •whole of fractional 
 section six, in the same township 
 and range containing 133 acres. But 
 the subdivisions thus assessed as one 
 tract, contain together hut 569 acres. 
 So also fractional sections 1, 2 and 
 3, township 13, range 8, assessed as 
 one tract, aggregate hut 500 acres. 
 Reading sections 3650 and 3628 of 
 
 the Political Code, it would seem to 
 he a sufficient assessment (at all 
 events where a tract does not con- 
 tain more than 640 acres), to de- 
 scribe such tract by stating the con- 
 gressional subdivisions contained in 
 it." Lake County B. Sulphur Banks 
 Mining Co., 4 W. C. E. 187 (Cal.); 
 (4Pac. Kep. 876.) 
 
 13 
 
194 THE LAW OF ASSESSMENTS. 
 
 CHAPTER VIII. 
 
 POSSESSOKY EIGHTS TO PUBLIC LANDS. 
 
 Sec. 100. — Are taxable by a State or organized Territory.— 
 
 The right and ownership, to the possession of the public lands 
 of the United States, has long been recognized as a separate 
 and distinct interest from the title which is vested in the 
 government ; and this right or ownership is held to be the 
 subject of taxation.^ But for the inhibition contained in 
 each act admitting states into the federal union, the lands 
 of the United States would be taxable, the same as lands 
 of any other owner or proprietor. It lias not been and is 
 not the policy of the Federal Government to take or con- 
 trol the actual possession of any of her public domain, 
 except so far as necessary for forts, arsenals, Indian reser- 
 vations, and other necessary public uses — and so far as to 
 prevent waste, cutting and removing timber, etc., but to 
 hold the public lands for the purpose of disposing of them 
 to actual settlers and miners, in small parcels or quantities. 
 Settlement upon the agricultural and mineral lands has been 
 encouraged by a- preference to purchase and acquire the 
 title from the government as soon as surveyed and platted.^ 
 The mineral lands are thrown open to exploration, and a 
 price per acre fixed upon them, to discoverers and locators.^ 
 The possession and right of possession of these agricultural 
 and mineral lands are recognized and held to be a species 
 of property subsisting in the hands of the citizen, and the 
 subject of taxation. It is not the pre-emption or home- 
 stead right "but the possession and valuable use of the 
 
 1 After admitting the fact that the such claim." State.*. Moore, 12 
 
 mines are the property of the gov- Cal. 69. 
 
 ernment, it was held by the Supreme ^gec. 2257 R. S. U. S. ; sec. 2289, 
 
 Court of California, that "this fact Id. 
 
 does not militate against the right ' Sec. 2319, Id. 
 to levy a tax upon the possessor of 
 
POSSESSORY EIGHTS TO PUBLIC LANDS. 
 
 195 
 
 land " which is made to contribute, in proportion to the 
 value of Euch interest, its share of the burdens of the gov- 
 ernment.* 
 
 Sec. 101. .Description of taxable interest and right to public 
 lands. — Where the possessory interest only is assessed, the 
 description sliould show that fact. But courts will con- 
 strue the language used in the description to mean tlie 
 possessory right, and not the fee simple, where the terms 
 employed are such as are used generally to describe that 
 character of property;' and the court will take judicial 
 
 * It was held in a well considered 
 case in California tliat " this prop- 
 erty is property in the citizen or 
 inhabitant having possession, and 
 not in the United States" . . . and 
 is clearly not exempt from taxation 
 under the clause in the Act of Con- 
 gress of September 9th, 1850, ex- 
 empting the public domain of the 
 United States from taxation," and 
 that "the public domain of the 
 United States and this species of 
 property of the citizen in the posses- 
 sion of the public lands, are in no 
 wise identical. It is only the prop- 
 erty interest of the citizen that can 
 be taxed or affected by a tax sale. 
 The title of the government, the 
 land itself, cannot be affected, nor 
 will any title that may hereafter be 
 derived from the government be 
 affected." People v. Shearer, 30 
 Cal. 659. The provisions of the 
 statute of California authorizing the 
 assessment of possessory rights to 
 public land are as follows: "The 
 term real estate, whenever used in 
 this act, shall be deemed and taken 
 to mean and include, and it is hereby 
 declared to mean and include, the 
 ownership of, or claim to, or posses- 
 sion of, or right of possession to, 
 any land within the state; and the 
 claim by, or possession of any per- 
 son, firm, corporation, association, 
 or company, to any land, shall be 
 listed under the head of real estate." 
 
 Cal. Sess. Laws of 1861, p. 421, §5; 
 Hale & Norcross S. M. Co. v. Storey 
 County, 1 Nev. 106; Wright v. Cra- 
 •dlebaugh, 3 Nev. 346; Quivey v. 
 Lawrence, 1 Idaho 317. 
 
 - An assessment was in the fol- 
 lowing form: "Hale and Norcross 
 Mining Company; 400 feet of min- 
 ing ground," (then followed the 
 metes and bounds, &c.,) "... value 
 of real estate, $150,000; value of 
 improvements, $25,000; value of 
 personal property, $2,400; total, 
 $177,400." In deciding upon the 
 validity of this assessment the court 
 used the following language : " But 
 does this assessment show that the 
 possessory title only is assessed ? It 
 appears to us it does. In the first 
 place, we thin£ the court must take 
 judicial notice of the facts which 
 are known to all intelligent persons, 
 and are a part of the history of the 
 territory, that the government origi- 
 nally owned all the land in the terri- 
 tory, and has never parted with the 
 title to any which is known to be 
 mineral land. Therefore the legal 
 presumption arises that a, mine in 
 the Territory (now state) of Nevada, 
 belongs to the government, and the 
 occupants have only a possessory 
 title. Therefore an assessment to 
 an individual or company of so many 
 feet of mining ground clearly con- 
 veys the idea of a possessory right. 
 The language does not convey to 
 
106 
 
 THE LAW OF ASSESSMENTS. 
 
 notice of the history of the country, and condition of tlie 
 public lands, including official surveys thereof, within which 
 they exercise jurisdiction.^" But where there is nothing 
 in the language used which would indicate an assessment 
 of any other interest than the fee simple title, and it judi- 
 cially or otherwise appears that it was public lands, the 
 assessment will be invalid.'' If the intention be to assess 
 
 any one having a knowledge of the 
 history of the country the idea of an 
 ultimate right to the land on which, 
 or in which the mine is located, . . . 
 here all conveyancers use the 
 word ground, when making deeds 
 for possessory claims. ' Possessory 
 claim' to the land or ground is 
 hai'dly ever introduced into mining 
 deeds. So many 'feet of mining 
 ground,' is the term almost always 
 used. Hale & Norcross G. & S. M. 
 Co. V. Story County, 1 Nev. 108. 
 '' In answer to au objection, for 
 
 want of description, where the lands 
 had been surveyed under the system 
 of U. S. surveys, the court said: 
 "Another objection urged is that 
 the description of the land is insuffi- 
 cient, in that the township and range 
 are not sufficiently described. But 
 the court would be justified in taking 
 judicial notice that there is in 
 Woodbury county only one township 
 of the given description. Stoddard 
 V. Sloan, 22 N. W. Kep. 925 (Iowa). 
 ^ An assessment was made in the 
 following form : 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 ^ 
 
 
 
 Taxpayers' 
 
 Description of 
 
 o 
 
 ■s 
 
 d 
 
 o 
 
 s 
 
 O 
 
 6 
 
 
 
 
 of 
 or p( 
 m an 
 ntsth 
 
 Names. 
 
 Property. 
 
 1 
 
 1 
 
 Sg d 
 
 (UK? 
 
 Value 
 Estate 
 sory clai 
 proveme 
 
 
 Lot 1 and E., 20 
 
 
 
 
 
 
 
 
 feet. Lot 2 and 
 
 1&2 
 
 
 
 
 
 $600 
 
 
 improvements, S. 
 
 
 
 
 
 
 
 
 T. & S. Division 
 
 
 
 
 
 
 
 S. C. Lewis. 
 
 C. C. 
 
 
 
 
 
 
 
 This the court construed to be an 
 •issessment of the fee. "These 
 headings," say the court " in view 
 of other portions of the statute, 
 seem to have been badly selected, 
 for real estate includes possessory 
 claims according to the definitions 
 of the statute. Here, however, they 
 were used to express two separate 
 and distinct classes of property. 
 
 Eeal estate in this place, undoubt- 
 edly, is intended for fee simple title 
 in contradistinction from the mere 
 possessory title described in the other 
 column. Had then, the number of 
 aci-fes or fractions of an acre in these 
 two lots been entered in the appro- 
 priate column, say under the. head 
 "Possessory claim, No. of acres" — 
 this might have been sufficient to 
 
POSSESSORY RIGHTS TO PUBLIC LANDS. 
 
 197 
 
 only the possessory title, or the improvements on public 
 lands, the language used should show such intention, and 
 the valuation should be so made and expressed as to show 
 •what is valued. Where no other lands than the tract 
 assessed as public lands is embraced in the assessment, the 
 valuation would, of course, be referable to that only. 
 
 The proper form of an assessment must be determined 
 from the statutory provisions and requirements relating 
 thereto ; ^ and the party whose property is to be affected 
 
 show that only the possessory claim 
 was assessed. But nothing of the 
 kind appears. We must then give 
 to the words used by the assessor 
 their natural import, and hold that 
 he made an assessment of the whole 
 estate in the land, and the fee being 
 admitted to be in the United States, 
 
 the assessment must be held void." 
 AVright V. Cradlebaugh, 3 Nev. 345, 
 347. 
 
 3 The following form of assess- 
 ment was submitted to illustrate the 
 rulings of the Supreme Court of 
 Idaho, by Chief Justice Nogglb in 
 People V. Owyhee M. Co., 7 Ida. 417: 
 
 ASSESSMENT EOLL OF PBOPERTT FOK THE FISCAL YEAR ENDING 
 APKIL — . 
 
 To all owners and claimants, known and vnknown. 
 
 a 
 
 <u 
 
 E 
 S 
 
 < 
 
 o 
 
 R 
 
 1 
 1 
 
 Description of Property. 
 
 3 
 
 i 
 3 
 
 a 
 
 IS 
 
 Hi 
 
 < 
 
 i 
 1 
 
 1 
 
 e 
 
 i 
 1 
 
 
 
 u 
 
 3 
 
 > 
 
 £ 
 
 Ill 
 
 S w ^ 
 
 1 
 
 p« 
 
 a 
 
 1 
 
 
 
 V 
 
 s 
 
 I 
 
 13 
 
 1 
 
 1 
 
 4SOO 
 
 H 
 S 
 
 H 
 
 
 hi 
 
 1871. 
 Mar. 5- 
 
 John Doe 
 
 A tract of land described, 
 etc. (full description), and 
 situated in Owyhee Co., 
 I. T., together with im- 
 movable property thereon. 
 
 The possessory interest in 
 and to a tract of land be- 
 longing to the U. S., de- 
 scribed, etc., and situated 
 in Owyhee Co., I. T. 
 
 Improvements, structures, 
 etc., situated on said last 
 described premises. 
 
 Horses, mules, and all other 
 personal property. 
 
 160 
 160 
 
 $ 
 200D 
 
 1000 
 
 $ 
 
 1000 
 
 9 
 
 Soo 
 
 $ 
 
198 THE LAW OF ASSESSMENTS. 
 
 inay insist upon the observance of every statutory form 
 which tends in the least to his protection. Where the tak- 
 ing of an oath in a form prescribed, is required of an 
 assessor before entering upon the discharge of his official 
 duties, the taking of such oath in the form prescribed 
 becomes a condition precedent to his right to make an 
 assessment.* 
 
 Sec. 102. claim to public lands — ^when assessable. — The 
 right, title, and interest of a claimant to government lands, 
 by or through a grant from a foreign government, through 
 which the United States obtained title, may be taxed, and 
 for that purpose assessed, at its reasonable value to the 
 claimant. It is not necessary, even, that the claimant be in 
 possession of the land claimed.^ It is no objection to the 
 assessment that the claim of title is uncertain and undeter- 
 mined. The claimant must determine for himself whether 
 his claim has any value. He cannot assert ownership of 
 tlie property, and, at the same time, claim exemption from 
 the consequences of ownership of title to the land.^ 
 
 Sec. 103. Assessment of proceeds of the Mines. — In the 
 State of Nevada the constitution provides for the assess- 
 ment, with certain exceptions, of all property for taxation, 
 except mines and mining claims, and, as to these, the pro- 
 vision is, that the proceeds alone shall be taxed. Tlie ex- 
 ception makes no distinction between public and private 
 lands. To carry into effect this provision of the consti- 
 tution, the legislature, as part of the revenue law of the 
 
 * Merrit v. Portchester, 71 K. Y. it is fully protected by the treaty, 
 
 309 (S. C. 27 Amer. K. 48). and a confirmation would relate back 
 
 ^ This question arose at an early to the date of its execution. . . . 
 
 date in California, where the claim- They cannot affirm and deny at the 
 
 ant was not in possession, and the same time ; it is either their land or 
 
 question of the validity of his claim it is not. . . . The plaintiffs, I ap- 
 
 was being litigated in the courts of prehend, are the best judges of their 
 
 the United States. An assessment own title, and must determine, at 
 
 of the lands claimed had been made, their own risk, whether it is worth 
 
 and an injunction sought to restrain paying taxes on or not. They can- 
 
 the collection of the tax. The court, not assert their ownership of lands 
 
 by MuBBAT, Ch. J., passing upon and deny the legal consequences of 
 
 the question, used the following Ian- such right." Robinson v. Gaar, 6 
 
 guage: " If the grant under which Cal. 275. See also Puget Sound Ag. 
 
 they claim is either legal or equitable Co. v. Pierce County, 1 Wash. 168. 
 
POSSESSORY EIGHTS TO PUBLIC LANDS. 199 
 
 state, required the assessor of each county, every three 
 months to ascertain the name, title, and location of all 
 mines and mining claims in his county, from which gold or 
 silver was extracted the previous quarter, and the names of 
 all persons and corporations owning, claiming, or having 
 possession or control thereof, and to ascertain and deter- 
 mine the number of tons, and the value per ton, of all ores, 
 quartz or minerals extracted for reduction from such mines, 
 and shall list and assess the same to the person or corpora- 
 tion extracting such ores or minerals, or owning, or having 
 possession of, the mines from which minerals are taken. 
 For the purpose of enabling the assessor to make the assess- 
 ment, he is authorized to demand a statement, under oath 
 .or affirmation, from the owner, superintendent, or managing 
 agent of each corporation extracting minerals, quartz, or 
 ores bearing gold and silver, or either, of the amount and 
 value of all gold and silver bars and bullion reduced, or 
 produced, from his or their mines for the preceding quarter. 
 These statements, like statements from tax-payers when re- 
 quired, are mandatory on the persons required to furnish 
 them, but are not conclusive on the assessors. They are 
 evidence which the law requires certain persons to furnish, 
 "for the purpose of enabling the assessor to make a correct 
 estimate of the value of ores " which he is required to 
 assess ; " but they are only evidence, and the assessment is 
 the result of the judgment of the assessor, founded on that 
 evidence."^ Having determined the number of tons, and 
 the yield of those tons, for the last quarter, from the 
 best evidence available, the assessor fixes the value by de- 
 ducting |18 per ton, if worked by wet process, and $40 per 
 ton, if worked by roasting or smelting process, the balance 
 being "the nett proceeds," to be. assessed and taxed. 
 
 Sec. 104. Public Lands after sale — taxable to purchaser. — 
 By ordinance of 1787, no state organized out of the North- 
 western Territory, ceded by Virginia to the United States, 
 was authorized to interfere with the primary disposal by 
 Congress of the soil or to tax the same, while owned by the 
 United States. This provision does not prohibit the taxation 
 J State V. Kruttschmidt, 4 Nev. 205. 
 
200 THE LAW OP ASSESSMENTS. 
 
 of any of such lands after a sale thereof and before the issu- 
 ance of the patent therefor. And this is so, notwithstand- 
 ing the purchaser acquires only an equitable title until the 
 patent issues to him ; the government, in the meantime, 
 retaining the legal title.^ After foreclosure of a mortgage 
 and sale of the mortgaged premises, pending the right to 
 redeem, where such right exists, the assessment should 
 be made to the mortgagor and not to the purchaser ; but if 
 the right of redemption have expired or none exists, not- 
 withstanding the sheriff may not have executed a deed to 
 the purchaser, the assessment should be to the purchaser 
 or his assignee or grantee as the owner.^ 
 
 ^ The title is only technically re- of the purchaser. He held it for a 
 
 tained in the government. In the final certificate, which could no more 
 
 liands of the purchaser it is real es- be cancelled by the United States 
 
 tate, and descends to his heirs, than a patent." Carroll ». Safford, 
 
 "When the land was purchased 3 How. 441; (15 Curt. Dec. 511.) 
 
 and paid for, it was no longer the ^KelseyB. Abbott, 13Cal. 619. See 
 
 property of the United States, but also ante, § 68. 
 
IMPBOVEJIENTS — AND DESCEIPXION THEEEOF. 201 
 
 CHAPTER IX. 
 
 IMPROVEMEKTS — AND DESCEIPTION THEEEOF. 
 
 Sec. 106. improvements taxable as real Estate. — The im- 
 provements on land are always treated as part of the realty 
 ■when the same person owns both the l^nd and the improve- 
 ments. " Things real consist of lands, tenements and here- 
 ditaments. The last word is the most comprehensive as 
 property, for it means anything capable of being inherited, 
 be it corporeal, incorporeal, real, personal or mixed. A ten- 
 ement comprises everything which may be holden, so as to 
 create a tenancy in the feudal sense of the word, and no 
 doubt it includes things incorporeal, though they do not lie 
 in tenure. Corporeal hereditaments are confined to land, 
 which according to Lord Coke, includes not only the 
 ground or soil but everything which is attached to the 
 earth, whether by the course of nature, as trees, herbage 
 and water, or by the hand of man, as houses, and other 
 buildings : and which has an indefinite extent, upwards 
 as well as downwards, so as to include everything terres- 
 trial, under or over it."^ But if the improvements consist 
 of a building or other structure placed upon the land by a 
 person not the owner, but with bis consent, it is personal 
 ])roperty ^ and must be taxed as such, or in such manner as 
 the statute may require. For the purposes of taxation, im- 
 j)rovement3 are sometimes by legislative enactment, declared 
 to be personal property,^ but treated as real estate or an in- 
 terest in real estate in the mode of assessment.^ In all 
 
 ' 3 Kent Com. *401. ble to attachment and seizure, and 
 
 2 Coombs built a shop upon the Gorham acquired a good title to it 
 
 lands of Doty with his consent. This by his purchase under the constable's 
 
 shop was levied on and sold under sale on the execution." Dotyu. Gor- 
 
 execution against Coombs, and pur- ham, 5 Pick. 489. 
 
 chased by Gorham. The court held * Cal. Stat. 1861, p. 421, § 5. 
 
 that — " The shop was a chattel lia- 
 
202 
 
 THE LAW OF ASSESSMENTS. 
 
 cases the mode prescribed by statute for listing and valu- 
 ing improvements on real estate must be observed. It 
 would seem however, that a separate assessment of the realty 
 and improvements would not be radically defective, when 
 made to the same owner, where the improvements are 
 treated by the statute as personal property.* Where im- 
 provements are treated as real estate, and in making an as- 
 sessment their value is stated separately from the value of 
 the land, it is not necessarily erroneous, but only another 
 method of stating the value of the land, including the im- 
 provements.® 
 
 Sec. 107. improvements— how described.— The require- 
 ments as to the description of improvements for the pur- 
 poses of assessment, must be sought for in the statute ; 
 
 *In a case involving this point, 
 Justice Rhodes used the following 
 language: " Improvements on real 
 estate are, by sec- 5 of the General 
 Revenue Act of 1861, classed as per- 
 sonal property; but sec. 20, in stating 
 the form of the assessment list, speci- 
 fies ' value of improvements on real 
 estate assessed to persons other than 
 the owners of said real estate,' and 
 does not provide a separate column 
 for the value of improvements on 
 real estate owned by the person as- 
 sessed. Although the assessor need 
 not, under that act, place the value 
 of the land and the improvements in 
 separate columns, where both are as- 
 sessed to the same person, yet if that 
 course is pursued, the assessment is 
 not radically defective. That mode 
 of assessment does not show that 
 the improvements were twice as- 
 sessed." People V. Culverwell, 44 
 Cal. 622. 
 
 *An assessment was made of 80 
 acres of land upon which was a 
 stone quarry, a patent lime-kiln, and 
 a railroad switch, connecting with a 
 main line of railroad. The assessor 
 valued and assessed the land at $15 
 per acre. The board of equalization 
 raised the land to $30 per acre, and 
 
 assessed the railroad switch at $1250. 
 An appeal was taken to the Circuit 
 Court (such appeal being allowable), 
 where the court placed a valuation 
 on the land of $15 per acre, $500 on 
 the railroad switch, and $400 on the 
 lime-kiln. It was objected that the 
 Circuit Court made independent as- 
 sessment of the lime-kiln, but the 
 Supreme Court held otherwise, using 
 the following language: " In answer 
 to this we think it sufficient to say 
 that while it would have been more 
 regular if the Circuit Court had 
 found that the land without the 
 lime-kiln was worth $15 per acre for 
 the purposes of assessment and tax- 
 ation, and that the kiln was worth 
 $400 more, making $20 per acre, yet 
 we think the finding and order 
 amount to this. The kiln is not 
 assessed as personal property, and 
 even if it should be so entered on 
 the treasurer's books we are unable 
 to see how the plaintiff can be 
 prejudiced. The rate of taxation 
 on real and personal property is the 
 same." Speaking of the railroad 
 switch, the court said that it was 
 " an improvement on his land, 
 proper to be taken into considera- 
 tion in determining the value of the 
 
IMPROVEMENTS — AND DESCEIPTION THEREOF. 203 
 
 usually, they are found in the revenue laws of the state. A 
 revenue law provided that "all property of any kind and 
 nature whatsoever within the state" — (with exceptions 
 specified) — "shall be subject to taxation ;" in prescribing 
 the mode of assessment, the assessor was required to set 
 down " First, the names of all 'taxable inhabitants. Sec- 
 ond, all real estate and improvements on public lands, 
 taxable to each, giving the metes and bounds, or describing 
 by lots or fractions of lots, or otherwise, all real estate and 
 improvements on public lands in any city or incorporated 
 town, and giving the number of acres as near as possible of 
 each tract outside of such city or town, and the locality 
 and township where it is situated," &c. Under this stat- 
 ute, after describing the land, it is sufficient, in an assess- 
 ment of improvements thereon to add — "together with the 
 improvements thereon," without describing the character 
 of the improvements or their exact location on the land.^ 
 But if the improvements to be assessed belong to a person 
 or persons other than the owner of the land, to make an 
 intelligible and valid assessment, the improvements should 
 be described or designated so as to be capable of being 
 identified, and their location on the ground described with 
 at least common certainty, unless the statute designate 
 some other mode as sufficient. A description would seem 
 to be necessary where a tax lien is sought against specific 
 property.^ When improvements are declared by the stat- 
 
 land. This is what the court below a sufScient description of the im- 
 
 aiid the board of equalization did in provemenls. The court say that the 
 
 making the assessment, and it is reasons given in a former case for 
 
 wholly immaterial whether the val- holding that a general description of 
 
 ues were aggregated or stated sepa- personal property is suflficient, " will 
 
 rately." Robertson v. Anderson, 10 equally apply to ' improvements on 
 
 N. W. Rep. 341 (Iowa). real estate.' The assessor," say the 
 
 1 Where it is intended to assess the court, " is only required to assess 
 
 improvements on land which is de- such improvement in general terms, 
 
 scribed, it is not necessary to give a under a, gross valuation, and the 
 
 specific description of the improve- statute does not seem to contem- . 
 
 nients. In The People v. Rains, 23 plate a more specific description in 
 
 Cal. 129, the court held, where the the complaint." 
 
 lands had been fully described, fol- ^ The following has been held to 
 
 lowed with the words, " and also the be a sufficient description in the as- 
 
 improvements thereon," that it was sessment of improvements: "A 
 
204 
 
 THE LAW OF ASSESSMENTS. 
 
 ute to be personal property, for taxable purposes they 
 should not be included with the assessment of the real 
 property, more especially when the realty is public land, 
 but treated, in the assessment, as personal property. This 
 rule should be observed, even when the realty on which 
 the improvements are located, belong and are assessed to 
 the same owner. A "lumping assessment" of distinct 
 classes of personal property is objectionable to nearly all 
 revenue laws, and each should be sufficiently described and 
 valued.^ 
 
 stone building on the south side of 
 Main street, Mieliigan Bluffs, be- 
 tween Tyler's and Levin & Hef- 
 ner's; valued at $2,700." People 
 D. Leet, 2.3 Cal. 164. 
 
 2 Under the Revenue Law of Idaho 
 T., all property is divided into two 
 classes — real and personal. Real is 
 made to consist of the ownership of 
 land, and any possessory claim or 
 interest in land public or private. 
 Personal property is made to consist 
 of houses, buildings, structures, erec- 
 tions or other improvements, erected 
 or built on lands, whether public or 
 held in private ownership. Under 
 this statute, it was held that " The 
 buildings, structures, <fcc., belonging 
 to the tax-payer who does not own 
 
 the fee upon which each structure 
 stands, shall be listed as improve- 
 ments on the public lands, and such 
 improvements shall be described and 
 valued separately from the land on 
 which they stand, and from the pos- 
 sessory interest therein, as the first 
 class of personal property." People 
 K. Owyhee Mining Co., 1 Ida. 41.3, 
 415. It is apparent, when improve- 
 ments on lands are by statute made 
 .personal property for the purposes of 
 taxation, that they must be described 
 and valued separately from other 
 personal property taxed to the same 
 owner. When the tax is made a lieu 
 against the particular property con- 
 stituting the improvements, this be- 
 comes a necessity.. 
 
■WHETHER IN SBPABATE PARCELS OE IN GROSS. 205 
 
 CHAPTER X. 
 
 ASSESSMENTS, "WHETHER IN SEPARATE PARCELS OR IN 
 
 GROSS. 
 
 Sec. 110. — 'When assessed to unknown owners. — It is uni- 
 formly held that assessments of separate parcels of real 
 property, when made to unknown T)wners, must be separate 
 and not joint; in other words, each distinct or separate 
 piece or parcel must be listed and valued, and the tax car- 
 ried out and charged against each tract, or separate parcel, 
 in severalty. A joint assessment of separate parcels made 
 to unknown owners is invalid, notwithstanding it may 
 afterwards appear that the land was, at the time, owned by 
 the same person or persons. And an assessment made to 
 a person named, or unknown owners, is deemed in legal 
 contemplation, as an assessment to unknown owners.^ 
 
 ' Justice Shipley stated tlie rea- 
 sons for requiring assessments made 
 to unknown owners of two or more 
 separate tracts or lots, to be made 
 separately, in a case where the as- 
 sessment was made in the disjimc- 
 
 tive, and gave the reasons why an 
 assessment in that form should be 
 treated as made to unknown owners. 
 The following is the form of the as- 
 sessment : 
 
 Wm. Shimmin 
 
 or 
 
 Unknown. 
 
 No. 
 lots. 
 
 Range or No. of 
 Division, acres. $ 
 
 On Penob. 
 River. 
 
 240 
 
 Co. 
 Tax 
 
 240 
 
 .61 
 
 Town 
 Tax. 
 
 $ 
 3.22 
 
 Defi- 
 ciency. 
 
 1834 
 
 Sum 
 Total. 
 
 3..33 
 
 On the point that the listing was 
 in legal effect to unknown owners, 
 the learned judge used the follow- 
 ing language: " This does not show 
 a compliance with the provisions of 
 the statute, c. 116, sec. 30, which re- 
 quired that he should state the 
 names of the proprietors, when 
 known, if the assessment be consid- 
 
 ered as made on lands the owner of 
 which was known. If the assess- 
 ment can only be considered (as it 
 probably must be), as made on lands 
 of unknown proprietors, then the 
 collector was required by that sec- 
 tion to 'publish the sum of the 
 taxes on the several rights, num- 
 bers of lots or divisions.' "When 
 
206 
 
 THE LAW OP ASSESSMENTS. 
 
 If the assessment be made in gross, it will not cure 
 the defect by selling in separate parcels, such mode of 
 selling under an assessment in gross not being author- 
 ized.^* The assessment, or listing, and valuation, and 
 the apportionment of the tax, must correspond.* The 
 
 the assessment Las been made on 
 ' rights ' or ' divisions,' it can only 
 be required that such right, division 
 or tract of land should be described, 
 valued and taxed alone, and not with 
 other lands. But when it is made 
 upon lots, if they are not valued and 
 taxed separately, the collector can- 
 not advertise the sum of the taxes 
 on the. several numbers of lots as 
 required." Proceeding further, and 
 as a reason wliy separate lots, as- 
 sessed to unknown owners, should 
 be separately assessed, the learned 
 judge adds: " There may be a great 
 difference in the value of the lots, 
 and when taxed, the owners being 
 unknown, the lots may be owned by 
 different persons ; and if a joint val- 
 uation and taxation were allowed, 
 one owner could not ascertain the 
 amount of tax on his own land, or 
 pay it, or redeem the land when 
 sold, without paying the tax on all 
 the other lands assessed with it, and 
 with which he had no connection. 
 A fair construction of the statutes 
 seems to require that each lot should 
 be valued and assessed separately, 
 when assessed as lands the owners 
 of which are unknown. Although 
 in this case the several lots appear 
 
 to have been owned by one person, 
 that fact cannot dispense with the 
 law, or excuse a deviation from it 
 when the assessment was made as 
 upon lands of unknown persons. 
 Shimmins v. Inman, 26 Me. 228. 
 (See also n. 2, Id.) 
 
 ' " In an action of ejectment, a 
 party attempted to defend under a 
 tax deed. The assessment roll, be- 
 ing produced, it appeared therefrom 
 that lots 5, 6, 7 and 8 of block 33, 
 which included the premises in dis- 
 pute, were assessed together at $850, 
 the tax being $42.00, and that the 
 portion of the tax estimated as the 
 share of lot 5, and the west five feet 
 of lot 6 was received by the collector, 
 and that the residue of lot 6 and lots 
 7 and 8 were returned delinquent. 
 The tax title was deraigned under 
 these proceedings. The court held 
 that, " There was no authority to 
 cut up into parcels the premises as- 
 sessed in one body, and at one sum, 
 and arbitrarily apportion to a specific 
 part a particular share of the whole 
 tax." Wyman v. Baer, 9 N. W. Rep. 
 455 (Mich.) 
 
 ^ An assessment was made in the 
 following form : 
 
 Owners' Names. 
 
 Range 
 
 Town. 
 
 Lots. 
 
 Acres 
 and rate. 
 
 Tax. 
 
 Unknown Owners. 
 
 12 
 
 7 
 
 32, 34, 35 
 
 38, 39, 40 2d rate. 
 
 41, 42, 43 
 
 4.83.5 
 
 In passing upon the validity of 
 this assessment, the following lan- 
 guage was employed: " In this in- 
 stance there was an assessment in 
 gross of the whole amount of the 
 
 tax chargeable upon the nine lots, 
 and yet each lot was put up and sold 
 to pay the tax on it separately. The 
 land is not treated as an entire tract 
 in the list, advertisement or sale, but 
 
■WHETHER IN SEPARATE PARCELS OR IN GROSS. 207 
 
 decisions are uniform, that separate and distinct lots or 
 jDarcels of realty, when assessed to unknown owners, must 
 be assessed, i. e., listed, valued, and the tax extended 
 against each, separately. 
 
 Sec. 111. "Wlien separate parcels are assessed to known 
 owners, must they be assessed separately, or may they be assessed 
 jointly? — When the assessment is made to a known owner, 
 and consists of more than one tract or separate parcel, must 
 each be assessed separately, or may they be assessed in 
 gross? On this question the authorities are not uniform. 
 Every decision, declaring that when the assessment is made 
 to unknown owners each several tract or parcel must be 
 assessed separately, would seem to imply, at least, the con- 
 verse doctrine as to assessments made to known owners. 
 If it be required that assessments of two or more separate 
 parcels must also be made separately, then wh^"- the dis- 
 tinction in the decisions as between assessments to known 
 and to unknown owners ? Unless it was the opinion of the 
 judges rendering decisions to the effect that, when the 
 assessment was made to unknown owners, each separate 
 or distinct tract, subdivision or parcel, should be assessed 
 separately, that the converse was the rule when the assess- 
 ment was made to the owner, much, if not all the reasoning 
 given to sustain those decisions would be witliout meaning.^ 
 The earlier decisions seem to have been reasoned upon the 
 
 is so treated in the apportionment or tive." Willey v. Scoville's Lessee, 9 
 
 tax. Kow it is evident that the course Ohio 43. 
 
 pursued should have been through- ^ Shimmins v. Inman, 26 Me. 231. 
 
 out consistent with itself. If the lots In the case of State v. Collector of 
 
 might be treated as separate and Jersey City, 4 Zabriskie, E. 108, a 
 
 distinct parcels of land, then the tax writ of certiorari had been sued out 
 
 charged upon them should have cor- to set aside the assessments, on the 
 
 responded with the fact in the de- ground, among others, that the lots 
 
 scription. Or if they should be were not separately assessed. One 
 
 treated as one entire tract, then, al- of the objections was, that separate 
 
 though the assessment of the tax in lots of the same block were not sepa- 
 
 the advertisement as ohe aggregate rately valued, and in such case, 
 
 sum would have been correct, the could not be redeemed from a tax 
 
 description of the land itself would sale without redeeming the entire 
 
 be erroneous, and so also would the block: but the court overruled the 
 
 sale under which the plaintiff in er- objection, observing that it did not 
 
 ror claims. In either case, the title appear whether the lots were of dif- 
 
 acquired under the tax sale is defec- ferent values. The point was not 
 
208 
 
 THE LAW OF ASSESSMENTS. 
 
 theory that joint assessments of two or more separate tracts 
 to the same known owner were valid, without expressly so 
 holding or declaring. But the tendency of the more recent 
 decisions is to the effect that each tract or parcel must be 
 separately assessed, where two or more are listed to the same 
 owner, as well as when to unknown owners.^ A contrary rul- 
 
 made as to the lots so included belong- 
 ing to different owners. Further- 
 more a statute of that state provided 
 against setting aside an assessment 
 for mere lack of form which did not 
 impair a substantial right of the 
 plaintiff in the certiorari {Id. 118). 
 
 2 Among the early cases referred to, 
 as sustaining the position, that joint 
 assessments of separate parcels or 
 tracts, are not valid, is that of Hay- 
 den V. Foster, 13 Piclc. 492. Tlie 
 facts were that twenty-two distinct 
 parcels of land had been assessed 
 to the same owner. " Each parcel 
 of land was separately valued by the 
 assessors, and the tax was assessed 
 upon such distinct valuation." Af- 
 ter the assessment the owner mort- 
 gaged one of the parcels, and the 
 mortgagee came into possession by 
 reason of failure to redeem the 
 mortgage. The entire tax amounted 
 to over $2,000, and the one parcel so 
 mortgaged was seized and sold for 
 the tax assessed against the entire 
 twenty-two parcels. Part of the 
 tax was assessed against the original 
 owner's personal estate and for his 
 poll. The validity of this sale be- 
 ing called in question, Justice Shaw, 
 after noticing the law of 1824, by 
 which it was provided, " that when- 
 ever any tax shall be assessed on 
 any real estate, liable to taxation, 
 said tax shall be alien on said estate; 
 and if the occupant or reputed 
 owner shall neglect to discharge said 
 tax, &c., the person authorized to 
 collect said tax may proceed in its 
 collection from a sale of so much of 
 the same, as may be necessary for 
 
 the discharge of the tax, and all 
 costs incident to the collection of tlie 
 same, in the same manner as collec- 
 tors of taxes may proceed to collect 
 taxes assessed on lands of non-resi- 
 dent proprietors" — proceeded to 
 construe the validity of the sale of 
 a single parcel, for .the delinquent 
 taxes of not only the parcel sold, 
 but of the other twenty-one parcels, 
 in the following language: "But 
 the question most discussed in the 
 present case, and most important to 
 the present defendant, is, whether 
 the tax levied and assessed upon 
 different estates, or parcels of estates, 
 held Dy one and the same owner, 
 can by force of the statute creating 
 a lien, be made chargeable upon 
 each ; or in other words, whether 
 the whole of several parcels of real 
 estate, however detached and sever- 
 ally occupied, being liable to taxa- 
 tion to one and the same person are 
 to be deemed one entire and integral 
 subject of taxation, so that the law 
 which provides that so much of the 
 estate may be sold by the collector, 
 as shall be sufficient to pay the tax, 
 may be so applied that one entire 
 parcel may be sold to pay the taxes 
 of the whole; and the court are of 
 the opinion that it cannot. This 
 question must depend upon a true 
 and just construction of the statutes. 
 But in a doubtful case, the statute 
 is to have such a construction as will 
 be best adapted to carry into effect 
 the objects for which it was made, 
 and in a manner most consistent 
 with the interest and convenience of 
 the parties concerned; that con- 
 
WHETHER m SEPAEATE PARCELS OR IN GROSS. 209 
 
 ing, however, has been made in one state, where the remedy 
 provided for enforcing the payment of a delinquent tax 
 consisted of a suit in a court of competent jurisdiction to 
 
 struction which is best adapted to 
 secure the rights of the public, and 
 the interests of the citizen. So nu- 
 merous and various are the collat- 
 eral, derivative and dependent inter- 
 ests in estates, which are liable to 
 taxation to one common owner, 
 having a general property, that it 
 would be attended with the utmost 
 inconvenience, and produce a great 
 confusion of rights, if the whole 
 could be considered and treated as 
 one integral subject of taxation, so 
 that one entire estate might be sold 
 to discharge the whole tax. The 
 difficulty would not be much re- 
 lieved if the one whose estate was 
 wholly taken away could have an 
 action for contribution, upon the 
 principle of average, against the 
 others; which is extremely doubt- 
 ful. Persons, not the absolute 
 owners, may have such interests, 
 as mortgagees, tenants, attaching 
 creditors, holders of equities of re- 
 demptions, and cestui que trust, 
 and in various other forms, vested 
 or contingent, all of which might be 
 
 defeated by such a sale, and where 
 no direct claim to contribution could 
 be established. But we think the 
 construction which would lead to 
 these inconvenient results, is not 
 the necessary or natural construc- 
 tion. The provision is, that any 
 tax assessed on any real estate, shall 
 be a lien on said real estate. Eacli 
 estate is made liable for its own tax 
 and no more; but it is contended 
 that there is no mode of distinguish- 
 ing an integral estate, short of put- 
 ting all that together as one estate 
 which lies in one town and is taxa- 
 ble to one individual. But whether 
 we regard the common understand- 
 ing of the word ' estates,' or the 
 usage and practice of assessors, or the 
 various statutes in pari materia, we 
 think it cannot be so understood in 
 this provision." Hayden v. Foster, 
 13 Pick. 492. lu the same line of 
 decisions is the case of Terrill v. 
 Groves, 18 Cal. 149. This was an 
 assessment of detached lots to the 
 owner who was a non-resident. The 
 assessment was in the following form : 
 
 
 
 
 
 
 !K 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 *^ 
 
 OJ 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 o 
 
 3 
 
 
 
 
 
 
 
 
 
 
 
 
 
 HI 
 
 ^A 
 
 
 
 
 
 
 
 
 ^ 
 
 
 Name. 
 
 o 
 
 
 
 o 
 
 s 
 ■3 
 
 a 
 o 
 
 e 
 
 > 
 
 1 
 
 
 
 
 
 
 i 
 
 o 
 
 s 
 
 CD 
 
 
 ^^ 
 
 5 
 
 
 > 
 
 M 
 
 H 
 
 M 
 
 
 
 - 
 
 
 
 
 H 
 
 Ph 
 
 Alonzo Green. 
 
 2 
 
 
 
 
 
 
 
 
 
 
 
 
 do. 
 
 6 
 
 
 
 600 
 
 
 
 
 
 
 
 
 
 
 
 do. 
 
 13&14 
 
 28 
 
 E. 
 
 150 
 
 200 
 
 
 
 
 
 
 
 
 
 
 do. 
 
 4 
 
 37 
 
 B. 
 
 
 
 
 
 
 
 
 
 
 
 
 do. 
 
 6 
 
 57 
 
 E. 
 
 100 
 
 
 $,1000 
 
 6.30 
 
 4.4J 
 
 84 
 
 1..37 
 
 3.15 
 
 1.26 
 
 $19.42 
 
 Pd. 
 
 The lots were in different blocks 
 and those in the same block were 
 not in one body. The following 
 14 
 
 plat shows the situation of the lots 
 in Block 28: 
 
210 
 
 THE LAW OF ASSESSMENTS. 
 
 1 
 
 3 
 
 5 
 
 7 
 
 9 
 
 11 
 
 13 
 
 15 
 
 14 
 
 16 
 
 2 
 
 4 
 
 6 
 
 8 
 
 10 
 
 12 
 
 obtain a personal judgment, and a decree and foreclosure of 
 the tax lien, to the extent of the real estate tax against the 
 
 necessary or desirable to pay the 
 taxes on a part of the property, it 
 would be impossible to do so with- 
 out paying the full amount assessed. 
 It was evidently the intention of the 
 statute tliat each lot should be made 
 to bear its own portion of the public 
 burthens, and a great deal of confu- 
 sion and injustice would grow out of 
 a gross assessment of several lots, and 
 a sale in gross for the payment of the 
 general tax. This construction 
 seems to have been given to the 
 provisions of statutes not very dis- 
 similar in Maine and Ohio, (26 Me. 
 218, and 9 Ohio 43.) and we think it 
 warranted by the language of bnr 
 own act." It will be seen that in 
 the case of Ilayden v. Fisher, (13 
 Piclv. 492,) separate assessments had 
 been made of separate parcels to 
 the same owner, and one of the par- 
 cels was sold to pay the tax assessed 
 against the wliole; and it was held 
 that eacli tract should hav« been 
 sold for its own tax. In the case of 
 Terrill v. Groves, a joint assessment 
 of non-adjoining lots in the same 
 block with lots in separate blocks 
 had been jointly assessed to the 
 same owner and jointly sold for 
 the aggregate tax, and this was also 
 held to have been illegal. The rea- 
 soning of the two cases is very simi- 
 lar; convenience, certainty and the 
 requirement that each tract, lot or 
 separate parcel should bear its own 
 burden of tax. Some of this rea- 
 soning might not stand the test of 
 rigid criticism. As to certainty. If 
 a single lot or parcel, after a separate 
 assessment be incumbered and there- 
 after an undivided or sepaiate por- 
 tions thereof be sold to different 
 persons, and the party owning the 
 tract when assessed, fail to pay the 
 tax and the entire tract or parcel is 
 suffered to become delinquent, and 
 
 In ruling upon the character of the 
 assessment in this case Justice Bald- 
 win used the following language: 
 " It seems that these lots were as- 
 sessed as the property of one Alonzo 
 Green. They were separately listed, 
 but valued jointly, and the aggre- 
 gate tax on all of them, and of two 
 other lots in other blocks set down. 
 The lots sued for were contiguous 
 to each other, and formed a part of 
 block number twenty-eight on the 
 plan of the city. These lots were 
 put up and sold together for the 
 aggregate amount of this tax. The 
 appellants contend that this was 
 illegal, and that the sale and the 
 consequent deed were void; and we 
 are of the same opinion. The act 
 of April 1857, under which these 
 proceedings were taken, in tlie fourth 
 section provides that the assessor 
 shall set down in bis assessment 
 book; 1. the names of all taxable 
 inhabitants; 2. all real estate and 
 improvements on public lands taxa- 
 ble to each, giving the metes and 
 bounds, or describing by lots or 
 fractions of lots; 3. the cash value 
 of all improvements on real estate, 
 etc. We think the true meaning of 
 the provision is, to require a sepa- 
 rate assessment and valuation of 
 each lot in cases like this, of city 
 property. If a man owned a hun- 
 dred lots, or if after the assessment, 
 he sold some of them, and it became 
 
■WHETHER IN SEPAEATB PARCELS OR IN GROSS. 211 
 
 particular land assessed.^* ^* To determine whether the 
 assessment must be made separately, or whether it may be 
 
 sold, the samfe uncertainty and in- 
 convenience would result mentioned 
 in the cited cases as an evil attend- 
 ing a joint assessment of separate 
 parcels to the same owner. Justice 
 Baldwin, in the case of Terrill v. 
 Groves, cites the two cases of Shim- 
 rain V. Inman, 26 Me., and Willey 
 V. Scoville's Lessee, 9 Ohio, in sup- 
 port of his decision, but both of 
 these cases were regarded as assess- 
 ments to unknown owners, and were 
 decided upon that theory. As to 
 the statement by Justice Baldwin 
 that " each lot should be made to 
 hear its own portion of the public 
 burthens,'' it is not the law of any 
 state, in the assessment to known 
 owners of property for general reve- 
 nue purposes. Such assessments 
 are always held to be a personal ob- 
 ligation which may be enforced 
 against the person assessed, by dis- 
 tress and sale of other property than 
 that assessed, unless the remedy is 
 restricted as to real property, to the 
 property itself. This was the law 
 of California when this decision was 
 made — the sale of the particular 
 i-ealty assessed being merely an accu- 
 mulative remedy ; but no remedy 
 existed for the enforcement of the 
 l)ersonal liability. In Wisconsin 
 seven different parcels were assessed 
 under one valuation, and the assess- 
 ment was held to be invalid for that 
 leason. The State v. Lafayette 
 County, 3 Wis. 818. In Maine an 
 assessment had been made of two 
 separate lots or parcels and the val- 
 uation was made of both in gross. 
 Under this assessment the real estate 
 was sold. In an action involving 
 the validity of the tax deed, the 
 court said: " We are satisfied that 
 the tax deed cannot be upheld for 
 the following reasons: 1. The val- 
 Tiation and assessment were made 
 
 upon two separate lots in gross. 
 Each of the lots was a distinct sub- 
 ject of taxation and liable to a 
 lien for the payment of that por- 
 tion of the owner's tax only which 
 should be assessed upon that par- 
 ticular estate. The owner had a 
 right to redeem each of these lots by 
 paying the taxes specifically assessed 
 thereon, without being obliged to 
 pay the tax assessed upon the other 
 lot also, which constituted no lien 
 upon the lot which he might wish to 
 redeem. The assessment and valua- 
 tion of both lots in gross, if upheld, 
 would deprive the owner of this 
 riglit by compelling him to pay the 
 taxes assessed upon both lots, or for- 
 feit his right to relieve either from 
 the lien imposed by tlie tax upon it. 
 The law does not contemplate nor 
 will it sanction the aggregation of 
 the several separate and distinct 
 estates owned by a non-resident 
 proprietor into one valuation and 
 assessment." (The other positioi^ 
 ruled on refers to matter of descrip- 
 tion.) Nason v. Bicker, 63 Me. .382. 
 2" This doctrine, the necessity of 
 separate . assessments of separate 
 tracts, when the assessment creates 
 a lien only, is recognized and applied 
 to the statute providing for the as- 
 sessment of lots to defray the ex- 
 penses of entering town sites in the 
 State of Kansas. After providing 
 the panner of entering town sites — 
 the survey thereof and their division 
 into squares and lots and ascertain- 
 ing the value thereof and of the 
 improvements thereon, the act pro- 
 vides for levying a tax on the lots 
 and improvements " sufficient to 
 raise a fund to reimburse to the par- 
 ties who may have entered such site 
 the sum or sums paid by them in 
 securing the title to such site, to- 
 gether with all expenses accruing in 
 
212 
 
 THE LAW OF ASSESSMENTS. 
 
 joint, the statute under which it is made must be consulted.* 
 Where separate parcels are assessed to the same owner, arid 
 
 perfecting the same, the fees," &c., 
 and that the probate judge shall 
 collect the taxes so levied and make 
 deeds to the lots to the parties enti- 
 tled thereto; "and in case any per- 
 son shall refuse or neglect to pay 
 such tax or assessment so made 
 against him, the probate judge may 
 proceed to offer such lots and im- 
 provements for sale, to the highest 
 bidder, first giving such public notice 
 as may be requiied in case of exe- 
 cution against the lands and tene- 
 ments of a debtor in the district 
 court." Under this statute, Mary 
 J. Sterling being an occupant within 
 a town site, certain lots, were set 
 apart to her and assessed at three 
 dollars each. Within the proper 
 time she tendered six dollars for 
 two of the lots, but refused to pay 
 the gross sum assessed against all 
 the lots set apart to her, and the 
 offer was refused and all the lots so 
 set apart to her were sold in bulk, 
 and after the sale and a deed to the 
 l)urchaser, an action in the nature 
 of ejectment brought for possession 
 of the lots upon which the tender 
 had been made. It was objected 
 that the deed was void because the 
 lots had been sold in bulk and be- 
 cause tender of payment had been 
 made on these two. Both these 
 objections were sustained. The 
 court used the following language, 
 in expressing the opinion on these 
 points: "It appears, too, that the 
 defendant tendered to the probate 
 judge in good time, the amount of 
 the tax levied against the lots in 
 question. The tender was refused, 
 because it was insufficient in amount 
 to pay taxes on all the lots set apart 
 to her. In this the probate judge 
 was wrong. As has been stated 
 lieretofore, it Is not a personal or 
 l)er capita tax. The levy is made 
 
 upon the lots, together with im- 
 provements thereon. There is, or 
 should be, a specific charge against 
 each parcel, and the owner is enti- 
 tled to the privilege of paying off 
 and discharging the tax upon any or 
 all of his lots, as he may choose, and 
 no lot or parcel can be sold for any 
 tax except that which has been spe- 
 cifically levied against it." Doster v. 
 Sterling, 6 Pac. Eep. 556-560 (Kan.). 
 ''''It is not always, however, that 
 an assessment in gross can be de- 
 feated in a collateral action or pro- 
 ceeding. Under a statute of Maine 
 the Court of County Commissioners 
 were authorized to assess the tracts 
 of land, township or plantation at so 
 much per acre, as the commissioners 
 should adjudge necessary for mak- 
 ing or mending the highway and 
 defraying the necessary expenses 
 attending the same. It was provided 
 that if the lands were held in seve- 
 ralty, the proprietors should be taxed 
 in severalty, provided the proprietors 
 furnished proper docuftients for that 
 purpose. Under this statute an as- 
 sessment was levied upon the lands 
 in gross, of a township, to defray 
 the necessary expenses of opening a 
 public road through it. It was ob- 
 jected that the commissioners erred 
 in assessing the land in gross instead 
 of making the assessment to the 
 several lots into which it was divided. 
 The court sustained the assessment, 
 resting their decision upon the doc- 
 trine that the action of the commis- 
 sioners was judicial, and at most, 
 merely erroneous, and could not be 
 reached in a collateral action. Fur- 
 thermore it did not appear that the 
 proprietors had furnished the docu- 
 ments which would entitle them to 
 a several assessment. Longfellow 
 V. Quimby, 29 Me. 202. 
 8 Wright V. Cradlobaugh, 3 Nev. 348. 
 
"WHKTHEE IN SEPARATE PARCELS OR IN GROSS. 213 
 
 joint assessments are allowable, it is not error, of which the 
 owner can complain, to assess separate tracts in severalty; 
 
 The form of the assessment in this case was as follows: 
 
 
 
 
 
 
 
 
 ^, ,d 
 
 
 
 
 
 
 o 
 'A 
 
 St 
 
 of Eea 
 ■)T posses 
 m and im 
 ntsthereo 
 
 Taxpayers' 
 
 Description of 
 
 o 
 
 "S 
 
 1 
 
 o 
 
 5 
 ■s 
 
 
 O 
 
 
 Names. 
 
 Property. 
 
 § 
 1 
 
 03 
 
 CO o 
 
 Value 
 Estate 
 sory clai 
 proveme 
 
 
 Lot 1 and E., 20 
 
 
 
 
 
 
 $000 00 
 
 
 feet, and improve- 
 
 1& 2 
 
 17 
 
 
 
 
 
 
 ments, S. T. & S. 
 
 
 
 
 
 
 
 J. C. Lewis. 
 
 Division C. C. 
 
 
 
 
 
 
 
 It will be observed that the whole 
 of lot 1, and 20 feet of lot 2, in the 
 same block were assessed jointly, 
 and in the argument, it was conceded 
 that this lot and fraction of a lot 
 adjoined, but it did not appear 
 whether they were used as separate 
 parcels, or as a single tract. Justice 
 Bkatty, speaking for the majority 
 of the court on the point of the 
 joint assessment, used the following 
 language: " It appears that one lot 
 and a fraction were assessed in one 
 common assessment, and a joint 
 valuation of both. The whole lot 
 is only described by its number and 
 block, the fraction as so many feet 
 of the east side of another lot. Two 
 objections are raised to this mode of 
 assessmcTit. First, the lot and frac- 
 tion should not have been assessed 
 jointly. Second, these lots not being 
 in a city or incorporated town should 
 have the boundary described, and 
 the number of acres or fractions of 
 an acre should have been mentioned. 
 The requirements of the statute in 
 this respect are as follows : ' described 
 by metes and bounds or by common 
 designation, or names; if situated 
 
 within the limits of any city or in- 
 corporated town, described by lots 
 or fractions of lots; if without said 
 limits, giving the number of acres 
 as near as can be conveniently ascer- 
 tained, and the location and town- 
 ship where situated.' We see noth- 
 ing in this which in direct language 
 prohibits the joint assessment of 
 two contiguous lots to the same per- 
 son. We see no possible objection 
 to such assessment. If both lots 
 belong to the same person he is 
 bound to the state for the entire tax, 
 and has no right to complain that he 
 cannot pay the tax on one without 
 paying the tax on both. If the 
 same party owns both lots, any 
 property of which he may be pos- 
 sessed, real or personal, is bound for 
 the 'whole tax. He cannot be in- 
 jured by the failure to make a sepa- 
 rate assessment. If two lots ar-e 
 assessed jointly and one belongs to 
 A. and the other to B., we can see 
 that a difficulty might arise about 
 the payment of taxes. A. might 
 wish to pay on his, but not on B's. 
 They might not necessarily be of 
 the same value, and the receiver of 
 
214 
 
 THE LA"W OF ASSESSMENTS. 
 
 It may be stated, as a general rule, that where real estate 
 is divided or subdivided into lots or parcels, each liaving a 
 description distinguishing it from the other, and the tax or 
 assessment constitutes no personal liability against the 
 owner, but a lien onlj' against the land, subjecting it to 
 forced sale for non-payment, and the same person is the 
 owner of two or more tracts, the assessment must be made 
 
 taxes would liave no right to assess 
 the value of each. But the very 
 same difficulty would arise if a single 
 lot were assessed to A. and half of 
 the lot belonged to B. The two 
 halves would not, necessarily, he of 
 the same value. The receiver of 
 taxes has no right to establish the 
 value or amount of taxes on any 
 piece of property. The law seems 
 to have made no provision for a case 
 of this kind. If A. was sued for the 
 entire tax on a lot, and should set 
 up in defense that he only owned 
 half of the lot, a question might 
 arise whether the court could ap- 
 portion the tax and give judgment 
 for his equitable portion, or whether 
 it would be a good defense to the 
 entire action. But it is surely true 
 tliat the defense would be just as 
 available in a case where A. owned 
 only one half of a lot or tract, as in 
 a case where two contiguous lots 
 were taxed to him and he only 
 owned one of them. We are aware 
 that in coming to the conclusion 
 that two lots may be lawfully as- 
 sessed in one joint assessment, we 
 are disregarding and overruling some 
 respectable authorities. (See Terrill 
 V. Groves, 18 Cal. 1.51, and Shim'miu 
 V. Inman, 26 Me. 228.) But both 
 these authorities go on the ground 
 of the great inconvenience that 
 might arise to a party from having 
 his lot assessed jointly with some 
 other person's lot. Tlie same incon- 
 venience as we have shown would 
 arise if the half of one man's lot 
 was assessed with the half of an- 
 
 other's lot." Justice Johnson, in a 
 dissenting opinion, cited the cases of 
 Terrill v. Gunes, Shimmin v. Inman, 
 and Willey v. Scoville's Lessees, and 
 expressed his own opinion in the 
 following language: "If the rule 
 is established that a lot and fraction 
 of a lot may be assessed jointly, and 
 the value given by the assessment 
 aggregated, when owned by one 
 person, there can be no limit to the 
 rule, and equally valid would be an 
 assessment of many lots or blocks; 
 or different portions of a town or 
 city, if all owned by the same indi- 
 vidual. The only correct rule as I 
 conceive, is the one pronounced in 
 the cases above cited." In Jennings 
 V. Collins, 99 Mass. 31, both sides of 
 the question are stated in the follow- 
 ing language: "If the lots had all 
 been the property of Packard, at the 
 time the tax was laid, the mere fact 
 that he had divided the land into 
 small lots for purposes of sale, would 
 not require the assessors to make a 
 separate valuation of each lot. But 
 when lands are separated, either by 
 the use or purpose to which they are 
 devoted, or by the mode of their 
 occupation, or are disconnected in 
 location, a tax laid generally, upon, 
 an entire valuation, cannot be made 
 a lien upon each separate parcel, 
 even when they are all owned or 
 occupied by the same person. A 
 fortiori, it would seem that lands in 
 the ownership of different persons 
 could not be included in one joint 
 assessment. The statute of 1861, 
 c. 167, requires assessors to describe 
 
•WHETHER IN SEPARATE PARCELS OR IN GROSS. 215 
 
 of each tract separately. The owner has the privilege of 
 paying the tax or assessment against any one of the tracts, 
 a privilege which cannot be exercised when two or more 
 are included in the same assessment. It is, therefore, the 
 safest course for assessors to pursue, where there is any 
 doxibt as to the true meaning of the statutory provision on 
 this subject, to assess separately each separate tract.* 
 
 Sec. 112. Assessments must not include more land than be- 
 longs to the same owner.— Assessments must not include more 
 land than belongs to the same owner. The land of A. can- 
 
 by name or otherwise, 'each and 
 every lot of land owned by each 
 person,' and to give the number of 
 acres or feet in each lot of land, and 
 the value of the same. In the 
 present case the two parcels Nos. 1 
 and 2 owned by Packard, and Nos. 
 04 and 66, owned by Jennings' heirs, 
 having been included in one joint 
 valuation and assessment, no lien 
 attached to either parcel for the 
 whole or any part of the joint tax." 
 In the case of People ». Morse, 43 
 Cal. 541, an assessment was made of 
 an entire block which was subdi- 
 vided on the city plat into lots, and 
 also of a half block in the same 
 manner, and the assessment was 
 sustained. The court say: "We 
 are unable to see that the assessment 
 complained of is substantially vaiient 
 from the requirements of tlie act. 
 The intention undoubtedly was to 
 require the assessors to use the easy 
 and accurate mode of description in 
 common use in cities and incorpo- 
 rated towns. This is usually done 
 by lot, block and range, having 
 reference to some recorded map or 
 plan of the city or town. But if one 
 man owns and returns a block or 
 half a block, we see nothing in the 
 language of the statute, or in the 
 supposed reasons for its passage, for- 
 bidding the assessor to list and value 
 it as a whole." In the still later 
 ease of People v. Culverwell, 44 Cal. 
 
 622, where the assessment had been 
 made of blocks in a city, the court 
 cite this case with approval and say : 
 "If they (the blocks) had not been 
 subdivided, they were properly as- 
 sessed and described in the complaint 
 by blocks; and if they had been 
 subdivided, still that description was 
 sufficient, as they were assessed to 
 the defendant as the owner." 
 
 *Wheu the form prescribed by 
 statute, requires the property as- 
 sessed to be described or scheduled 
 separately, and the value and taxes 
 assessed against the same to be car- 
 ried into separate columns, and this 
 is not done but the taxes are carried 
 simply into one column of aggre- 
 gates, the assessment is invalid and 
 the taxes cannot be enforced. Peo- 
 ple ». Moore, 1 Ida. 667-670. The 
 assessment of lots 5, 6, 7 and 8 in 
 block 33 was made jointly, and all 
 valued together or jointly at $850. 
 The share of the tax of lot 5 and 
 the W. 5 feet of lot 6 was estimated, 
 and the balance of lot 6 and all of 
 lots 7 and 8 returned as delinquent: 
 In passing on this attempt to sever the 
 assessment tlie court say: " The tax 
 title of Atkinson, having originated 
 in these proceedings, it is not valid. 
 There was no authority to cut up 
 into parcels the premises assessed iu 
 one body and at one sum, and arbi- 
 trarily apportion to a specific part, a 
 IDarticular share of the whole tax." 
 
216 
 
 THE LAW OF ASSESSMENTS. 
 
 not be included in an assessment to B. even though the 
 land of both may have formerly constituted a single tract 
 or parcel.^ The same principle applies in the assessments 
 of owners as tenants in common of unequal, undivided in- 
 terests to the same tract or parcel. In all such cases it is 
 necessarj- to assess each owner of each undivided interest 
 separately, and this rule will apply as well where the title 
 is held in equal proportions but as tenants in common.^ In 
 no case can separate lots, the property of different owners, 
 
 Atkinson v. Gliuman, 2 Gilin. 437. 
 In Nebraska, an objection to a decree 
 against two separate tracts for a tax 
 v/ithont designating the tax charge- 
 able against each, was sustained. 
 O'Donohue v. Heudrix, 22 N. W. 
 Itep. 548 (Neb.) 
 
 1 Barker v. Blake, 36 Me. 435. In 
 tills case the facts were that E. P. 
 Baldwin became the owner, previous 
 to the assessment, of " four feet off 
 south side of lot 10," of which he 
 took and ever thereafter held posses- 
 sion. The assessment included this 
 
 •" four feet." In deciding this point 
 the court say: " The plaintiff's hus- 
 band, therefore, never owned or pos- 
 sessed the whole of lot 10, and it Is 
 quite clear that the assessors had no 
 right to assess to him his neighbor's 
 land jointly with that which he 
 owned in severalty, and such assess- 
 ments and the collector's sales and 
 deeds in pursuance of them were ut- 
 terly void, as affecting the rights of 
 plaintiff." See also ante, § 64. 
 
 2 People V. Shimmins, 42 Cal. 123. 
 In tills case the facts were, that the 
 San Pablo Rancho, consisting of over 
 17,000 acres, had been assessed to 
 alsout one hundred persons, but 
 whether as tenants in common, 
 joint tenants, or as owners, claim- 
 ants, or occupants in severalty, did 
 not appear on the face of the assess- 
 ment. It was found as a fact that the 
 taxes had been paid on the whole 
 Uancho, except an undivided inter- 
 
 est therein of 4,338 acres, and that 
 one of the defendants — Tewksbury — 
 had paid the tax on all his interest 
 in the land. Just how these facts 
 were ascertained or determined did 
 not appear. Judgment was rendered 
 that the lien for so much of the tax 
 as was delinquent should be enforced 
 by a sale of so much as was neces- 
 sary of the undivided interest of 
 4,.338 acres to pay the unpaid portion 
 of the tax assessed against the whole, 
 but the judgment did not designate 
 to what particular persons this undi- 
 vided interest was assessed. It ap- 
 peared that no specific undivided 
 interests " were assessed to any par- 
 ticular persons, but the whole Rancho 
 in solido was assessed as an entirety 
 to numerous persons, without desig- 
 nating the interest of any one of 
 them. This can be regarded in no 
 other light than as an assessment to 
 the several persons as co-partners, 
 joint tenants, or tenants in common, 
 and not as owners or claimants in 
 severalty." Proceeding to discuss 
 the case as presented, the court say, 
 that if that method of assessment 
 were unobjectionable, it would be 
 the duty of the court to ascertain by 
 its judgment what particular undi- 
 vided interests in the land were de- 
 linquent, and to exonerate from the 
 tax lien the balance ; that this would 
 be necessary in order to enable pur- 
 chasers to know the particular inter- 
 ests they were buying. " In this 
 
WHETHER IN SEPAKATE PARCELS OR IN GROSS. 217 
 
 1)6 jointly assessed to the person owning only one of the 
 lots.^ Where an undivided interest is assessed, the assess- 
 ment may be enforced by a sale of the same or an equal 
 undivided interest in the land so assessed.* 
 
 Sec. 113. what are separate Lots, Parcels, and Tracts and 
 how same must be assessed.— It is not every subdivision that 
 constitutes a separate lot, tract or parcel. Lands may have 
 been surveyed according to a plan, and platted, and such 
 plat recorded as a town plat, but as long as such land con- 
 tinues to be occupied and used as a single tract or parcel, 
 and is so treated by the owner, the whole may be so treated 
 and assessed. But after tlie land has been sold or is occu- 
 
 oase a different course was pursued, 
 and the court ordered to be sold only 
 an undivided interest, equal to a 
 specified number of acres, without* 
 designating to whom this interest 
 belonged, or had been assessed, and 
 without exonerating the remaining 
 interests of those persons who had 
 already paid their proportion of the 
 tax. For this reason the judgment 
 must he reversed, but we reserve our 
 opinion upon the point whether un- 
 der an assessment of a tract of land 
 in soUdo, and as an entirety, an un- 
 divided interest can, in any case, be 
 sold for a delinquent tax." It is 
 very evident that an assessment 
 made in this form would be held to 
 be invalid under the decisions of 
 California. 
 
 3 A rancho consisting of 24,600 
 acres had been owned by John 
 Hancock and John C. Hays; but. 
 they had sold to A. J. Pope 7,479 
 acres by metes and bounds. Two 
 years after the sale the entire rancho 
 was assessed to Hancock and Hays, 
 valued at $24,656. Nothing ap- 
 peared to show the value of the 
 7,479 acres sold to Pope. In an ac- 
 tion to enforce the tax, the court 
 held this assessment to be void. Peo- 
 ple V. Hancock, 48 Cal. 631. 
 
 * Where an assessment of an undi- 
 
 vided interest had been made, and 
 the statute in force at the time 
 authorized the enforcement of de- 
 linquent taxes by a decree and fore- 
 closure, as in case of mortgage liens, 
 and the objection that the sheriff 
 sold an undivided interest, instead of 
 a specific tract or portion of the latid, 
 the court used the following lan- 
 guage: "It is also objected, on 
 part of appellant, that the sale was 
 void because the sheriff sold an un- 
 divided interest in the land, instead 
 of a specific tract. But the findings 
 show that it was an undivided inter- 
 est that was assessed, and the judg- , 
 ment under which the sale was made, 
 as well as the statute in force at the 
 time, directed that the sheriff, in 
 making the sale, should only sell 
 the smallest quantity that any per- 
 son would take and pay the judg- 
 ment and all costs. The property 
 assessed and directed to he sold, be- 
 ing an undivided interest, it is mani- 
 fest that no specific tract could be 
 sold. The sheriff was directed and 
 authorized to sell only the smallest 
 quantity of the undivided interest 
 assessed that any purchaser would 
 take and pay the judgment and all 
 costs. This he did." Harper v. 
 Kowe, 55 Cal. 135. 
 
218 
 
 THE LAW OF ASSESSMENTS. 
 
 pied according to the subdivisions, then the same land must 
 be assessed to each owner of a subdivision, separately. 
 Where a town plat is divided into tracts or blocks and these 
 are subdivided into lots or other fractional subdivisions and 
 the entire of a tract or block is owned by one person, the 
 land may be listed and assessed as a tract or block unless 
 the statute requires town lots and other subdivisions to be 
 listed and assessed separately. The provisions of the statute 
 with respect to the mode of listing and assessing, in this re- 
 spect, and in fact in all others, is mandatory and should be 
 followed strictly.'' The spirit, at least, if not the letter of the 
 statute must be observed. So too in the description and as- 
 sessment of lands which have been divided by U. S. suryej's. 
 If the same person is the owner and occupant of a whole 
 section, or even a township, and uses it as a single tract, in 
 the absence of a statutory provision directing otherwise, the 
 whole might be described and assessed in soUclo,a,s one tract 
 or parcel.^ But on the other hand, notwithstanding the 
 
 J Martin v. Cole, .38 Iowa 147, 149, 
 
 " The question is one of great com- 
 pass, involving the construction of a 
 statute, and thereby the discovery of 
 the legislative will. As we have 
 before had occasion to remark, that 
 will, when discovered, if within con- 
 stitutional bounds, must be obeyed 
 by this court, although found in a 
 revenue law, and prescribing rules 
 for the enforcement of the collec- 
 tion of taxes, and providing for the 
 sale ot lands for that purpose. . . . 
 It is the duty of the court to uphold 
 and enforce all constitutional laws." 
 ■■= Atkins V. Hinman, 2 Gilm. 437, 
 443; Spellman v. Centenius, 12 111. 
 409. The following extract from the 
 case first cited in this section, illus- 
 trates the doctrine of the text. There 
 was no other objection made to the 
 assessment, than that a whole section 
 was assessed as one parcel, instead 
 of in subdivisions of a section. We 
 are left, therefore, to presume that 
 the assessment was in all other re- 
 spects regular — made to the proper 
 
 owner, and valued as a whole. 
 " Where lands are in different sec- 
 tions or quarters, or are not contigu- 
 ous, and cannot be described as one 
 tract by one description, they do not 
 in fact ponstitute one tract, and can- 
 not be so designated. If two ' forties ' 
 properly forming an ' eighty ' may 
 be sold together as one tract, no rea- 
 son can be given why four ' forties,' 
 which together constitute a quarter 
 section, may rot in the same way 
 be disposed of as one tract. The 
 same course of argument requires us 
 to concede that four quarters, eight 
 ' eighties,' or sixteen ' forties,' 
 which are but fractions constituting 
 a section, may be considered as one 
 tract or parcel, and so sold. There 
 is no escape from this conclusion. 
 In truth, the section is the unit of 
 our system for the division of lands. 
 '. . . We conclude, therefore, that 
 the term parcel or tract, is properly 
 applied to a section." Martin v. 
 Cole, 38 Iowa 146. 
 
"WHETHER IN SEPARATE PARCELS OR IN GROSS. 219 
 
 ownership, is the same, if they are occupied and used as sep-, 
 arate tracts, they should be described and valued and the 
 tax charged against each, separately.^ Where a lot is in- 
 closed by one fence and occupied by the owner and his ten- 
 ants as one parcel, it is not within the province of the 
 assessor to assess it in two or more separate parcels.* The 
 assessor has no power, unless it be conferred by statute, to 
 subdivide a tract of land and list and value it for the pur- 
 poses of taxation, separately, according to such subdivision. 
 No matter how large the tract, if owned bj' the same own- 
 
 ^ " A dwelling house, with the 
 land and appurtenances occupied 
 with it; a warehouse so occupied; a 
 farm or other parcel of real estate 
 let to the same tenant by one and 
 the same lease; parcels detached 
 from each other and used and occu- 
 pied for different purposes, — may re- 
 spectively be regarded as separate 
 and distinct estates. Where this 
 can be done, they must be deemed 
 to be separate and distinct estates, to 
 be distinctly valued and assessed. 
 There may be cases of difficulty; as 
 where one parcel of vacant land is 
 divided and several dwelling houses 
 erecteij, or sold or let to different in- 
 dividuals, it is very questionable 
 whether the tax shall be apportioned, 
 or whether each parcel of the sub- 
 division may be lield for the whole. 
 Hut where the distinct estates are in 
 fact severally valued, it shows satis- 
 factorily what was the understand- 
 ing of the assessors, and proves that 
 no such difficulty existed in the par- 
 ticular case." Hayden v. Foster, 13 
 Pick. 497. A statute of Iowa pro- 
 vided that where assessments were 
 made to unknown owners, that the 
 advertisement "shall embrace' the 
 largest quantity practicable in each 
 description." This statute was cout 
 strued to mean, " that when the 
 owner is imknown, a section shall 
 not be advertised in sixteen descrip- 
 tions of 'forties,' nor in 6ight as 
 
 ' eighties,' nor in four quarters, but 
 in one, as a section;" and that the 
 provision in the same statute, " that 
 the county treasurer shall offer for 
 sale separately, each tract or parcel 
 of real property advertised for sale," 
 means the tracts or parcels as adver- 
 tised in sections as above directed. 
 This statutory provision seems to 
 stand alone, as a requirement that 
 separate tracts assessed to unknown 
 owners, may be sold in aggregated 
 parcels of not more than one section 
 in each. Martin v. Cole, 38 Iowa 
 147. 
 
 * A fifty vara lot had upon it a 
 house and other out-buildings, and 
 was occupied by the owner, his ten- 
 ant and family. The lot was in- 
 closed by a single fence, and was not 
 divided, and was used as one lot. 
 This lot was not assessed as one par- 
 cel, but the larger portion only was 
 assessed to the owner, and the bal- 
 ance arbitrarily cut off by the asses- 
 sor, and assessed to unknown owners. 
 The court held that, " The assessor 
 is nowhere authorized to arbitrarily 
 divide up lots into strips to suit his 
 caprice, and assess such several por- 
 tions separately. . . . The law un- 
 doubtedly contemplates that each 
 lot of well-known dimensions and 
 boundaries shall be assessed as one 
 lot." Bidleman v. Brooks, 28 CaL 
 72. 
 
220 
 
 THE LAW OF ASSESSMENTS. 
 
 ers and is not by them subdivided and is used as one tract 
 or parcel, the assessor must assess and value it as one parcel.^ 
 Sec. 114. when Large Tracts — Required to be Assessed in 
 Separate Parcels— How to be described.— When the statute re- 
 quires tracts exceeding six hundred and forty acres, which 
 have been sectionized by the U. S. government, to be 
 assessed in separate parcels not exceeding 640 acres each, 
 and also authorizes the description to be by sections and 
 fractions of sections, where the description used would 
 embrace more than 640 acres if the subdivision contained 
 the full quantity usually allotted thereto, the assessment 
 will not be held invalid for error appearing on its face. It 
 may be shown that the land embraces fractional subdivi- 
 sions and does not contain a quantity exceeding 640 acres 
 to each parcel or tract. The quantity contained, is a 
 question of fact.^ 
 
 5 Thompson v. Burhans, 61 IT. 
 T. 62. 
 
 ' In the case of Lake County v. 
 Sulphur Banks Q. S. M. Co., 4 W. 
 C. Rep. 189, (Cal.), the court held as 
 follows: "But the statement that 
 the 3,500 acres constitute a single 
 tract is not borne out by the record. 
 There is no evidence of the fact. 
 Nor does it appear that subdivisions 
 exceeding in aggregate quantity 640 
 acres are assessed as a single tract. 
 It is true the west fractional half and 
 the southeast quarter of section 5, 
 township 13, range 7, containing 436 
 acres, is assessed with tl;e whole of 
 fractional section 6, in the same town- 
 ship and range, containing 133 acres. 
 But the subdivisions thus assessed as 
 one tract, contain together but 569 
 acres. So also, fractional sections 1, 2 
 and 3, township 13, range 8, assessed 
 as one tract, aggregate but 500 acres. 
 Heading sees. 3650 and 3628 of the 
 
 Political Code, it would seem to be 
 a sufficient assessment (at all events 
 where a tract does not contain more 
 than 640 acres), to describe such 
 tract by stating the congressional 
 subdivisions contained in it. We 
 think, however, the attempted de- 
 scription of ' a tract of land entered 
 by Frazier' in section 13, township 
 13, range 7, is hopelessly defective. 
 This is neither a description by 
 'township, section, or fractional 
 section,' nor is it a description by 
 ' metes and bounds,' nor is it other- 
 wise sufficient to identify the land. 
 The description, 'W. fractional i 
 and S. E. J of (mine) section 5, 
 township 13, range 7, 436 acres ; all 
 of fractional section 6, township 13, 
 range 7, 133 acres,' is sufficient. It 
 is, in effect, a statement that all the 
 subdivisions are a mine." Lake 
 County V. Sulphur Banks Q. S. M, 
 Co., 4 Pac." Eep. 876-8 (Cal.). 
 
DESCEIPTION OP PERSONAL PEOPERTY. 221 
 
 CHAPTER XI. 
 
 DESCRIPTION OP PERSONAL PROPERTY. 
 
 Sec. 120. A general description sufficient. — In the assess- 
 ment of personal property, no special description of each 
 item, with its value, is necessary. Sometimes it is required 
 that there shall be a designation of each class or species of 
 property embraced within the assessment, with a valuation 
 of each ;^ but, generally, this is not required. The list fur- 
 nished to tax-payers, and which they are required to fill up 
 with valuations, is so arranged as to designate all the various 
 items of property that constitute the assessment. These 
 furnish the description and data upon which the personalty 
 assessment is based, and from these each assessment of per- 
 sonalty is made and entered in gross, upon the assessment 
 roll, opposite to the owner's name. Where the statutory pro- 
 vision is, that " no further description of personal property 
 need be given in the assessment roll than that furnished by 
 a statement of its value and the name of its owner," an 
 assessment with no other description than ,the general 
 designation, "personal property," is sufficient.^St Where 
 
 1 Falkner ». Hunt, 16 Cal. 172. In requisition. But the different classes 
 this case the assessment described should be stated — as goods, money 
 the property assessed as " money loaned, gold dust, solvent debts — the 
 loaned upon mortgages (Marysville, general designation, ' personal prop- 
 etc), $100,000." The party assessed erty,' Is not enough, any more than 
 paid the tax under protest, and sued the general designation, 'real es- 
 to recover the money back. Justice tate.'" {This case, in the light of 
 Baldwin, speaking of the character later cases, cannot be treated .as au- 
 of the assessment, used the follow- thority, for the position, that taxes, 
 ing language: "Obviously, if a, paid upon an irregular, or erroneous 
 lumping assessment were made of assessment, may be recovered back, 
 personal property, it would be very if it appear that the person so as- 
 difficult to make or correct the val- sessed, was possessed of the prop- 
 uation. It is true it is not necessary erty so irregularly or erroneously 
 that every item of taxable property assessed to him.) 
 should be listed, for that would be a ^ Falkner v. Hunt, 16 Cal. 172. 
 useless as well as a very inconvenient 
 
222 
 
 THE LAW OP ASSESSMENTS. 
 
 the statute designates the various kinds of personcal pro- 
 perty liable to taxation, and the assessment gives such a 
 description as will bring the property within one or more 
 of the classes, it will be sufficient, notwithstanding a more 
 accurate description might have been given.^ Where the 
 different classes and species of personal property is re- 
 quired, it is only necessary to state them in general terms, 
 giving the gross value of each class or species, as, e. g., 
 horses, cattle^ hogs, and sheep, by number and values in 
 aggregates : goods, wares, and merchandize, with valuation 
 in gross, and other kinds of personal property in like man- 
 ner. No detailed or itemized statement, with value of each 
 item, is required in any assessment of personal property. 
 The amounts or quantities, with values, are all that need 
 be stated.* Shares in corporations are described by giving 
 
 'People ». Home Insurance Co., 
 29 Cal. 536, 549. The statute desig- 
 nated the personal property liable to 
 taxation as " chattels of every de- 
 scription"; "all money at inter- 
 est or loaned, whether secured by 
 pledges, mortgage or otherwise"; 
 "all solvent debts exceeding what 
 may be due from such person, cor- 
 poration, association or firm" ; " the 
 capital stock of all corporations, 
 companies, associations, firms or in- 
 dividuals doing business or having 
 an office in the state"; "all other 
 property not real estate which is not 
 otherwise taxed." The assessment 
 consisted of twenty-five bonds issued 
 by the United States of $1,000 each, 
 and fifty bonds of $1,000 each issued 
 by the state, and the property was 
 described as " money and bonds de- 
 posited as per statute," the assess- 
 ment being made to the " Home 
 Insurance Company, Bigelow Bros. 
 Agents " — and as to this description 
 the court say: " Whether the prop- 
 erty might have been classed under 
 any one of the heads, ' money 
 loaned,' 'solvent debts,' 'capital 
 stock of a corporation,' etc., doing 
 
 business or having an office in this 
 state, or ' other property not real 
 estate,' we think it was sufficiently 
 described in the assessment as 
 ' money and bonds deposited as per 
 statute.' Money is not a very apt 
 term by which to designate the 
 property, but the object of the 
 description is simply to identify the 
 property assessed with reasonable 
 certainty. The whole description 
 pointed directly, and in terms that 
 could not be misapprehended by 
 Bigelow Brothers, to the precise 
 property intended." 
 
 * An assessment was made in the 
 following form: "One poll; 166 
 acres of land, $3,000; one horse, 
 $85; two cows, $70; one two-year- 
 old, $25; four swine, $26; seven 
 sheep, $42; 18 tons of hay, $540." 
 No part of the assessment was con- 
 tested but the item of hay, which 
 was claimed as being exempt, being 
 a product of the land which was 
 taxed, and the hay necessarily in- 
 cluded in its valuation, but this posi- 
 tion being overruled, it was objected 
 that the assessment was void for un- 
 certainty or want of description. 
 
DESCRIPTION OP PERSONAL PEOPEETY. 
 
 223 
 
 the number of the shares and designating the names or 
 character of the corporations to which they belong.^ 
 
 Sec. 121. Property that is sometimes Heal and sometimes 
 Personal Property.— The same character of property is some- 
 times classed as real and sometimes as personal property. 
 Houses, fences, and other structures erected upon land by 
 the owner of the fee, are classed as realty wlien so placed 
 as to be permanent structures ; but the same improvements 
 or structures when placed on land by one owning only a 
 leasehold or sometimes when owning only a possessory 
 right to public lands, are treated and considered as personal 
 property.! This is not a mere statutory rule for taxable 
 
 The court used the following lan- 
 guage in passing upon this objec- 
 tion: "We think the objection 
 cannot be sustained. The amount 
 and value of the hay are distinctly 
 stated. We think that is enough." 
 Donnell v. Webster, 63 Me. 15. 
 
 'The provision of the Political 
 Code of California is in these vi'ords: 
 " All personal property, showing the 
 number, kind, amount and quality ; 
 but a failure to enumerate in detail 
 such personal property, does not in- 
 validate the assessment." An as- 
 sessment included shares of stock 
 in corporations, under the general 
 designation — "mining stocks." In 
 a complaint to recover the tax, the 
 description thus given in the assess- 
 ment was used, and the court held 
 the description sufficient, both in 
 the complaint and in the assessment. 
 It was contended that the descrip- 
 tion should be such as would enable 
 the Board of Equalization, acting 
 upon the assessment roll, to pass 
 upon the values of each class and 
 item of property, but the court over- 
 ruled this objection, remarking that 
 it was within the power of the party 
 assessed to produce evidence to ena- 
 ble the board to act on any matter 
 of grievance affecting the assess- 
 ment, riuthermore, that it was the 
 
 duty of the tax-payer to furnish a 
 true and correct list of his taxables 
 to the assessor, and that he could 
 not be heard to complain of any loss 
 resulting to him, from a failure on 
 his part to furnish such list. City 
 and county of San Francisco fc. 
 Flood, 64 Cal. 500. The adjudged 
 cases in Califoruia hold, that only 
 a general description is necessary 
 in the assessment roll. As a mat- 
 ter of practice, when a question 
 affecting an individual assessment 
 comes before the Board of Equal- 
 ization, the tax-payers' list, when 
 one has been furnished, is used. 
 The following descriptions in the 
 assessment roll have been held suf- 
 ficient: "money loaned," People 
 V. McCreery, 34 Cal. 434; "personal 
 property," People v. Sneath, 28 Cal. 
 612; "20 bank stock, $2,000," Mon- 
 roe V. Town of Canaan, 43 Conn. 176. 
 " If the description in the assessment 
 roll of the property assessed is cer- 
 tain enough to inform the tax- 
 payer, for what he is to be taxed, 
 it is sufficiently certain." 
 
 1 "Evidently, the ownership of 
 land shall include all real estate, in 
 its common law signification, where 
 the fee belongs to the person in pos- 
 session, and the personal improve- 
 ments belong to the owner in fee. 
 
224 
 
 THE LAW OTT ASSESSMENTS. 
 
 purposes, but a law of universal application. Where build- 
 dings or other structures upon land owned by a person or 
 persons other than the owner of the land, are assessed as 
 personal property, they should be listed as personal property, 
 and described so as to show the character of the property 
 and its location.^ 
 
 Sec. 125. Franchises are Assessable only when made so by- 
 special law.— A franchise, which is defined to be a "special 
 privilege conferred by government on individuals, and 
 which do not belong to the citizens of the country gener- 
 ally by common right," ^ are not taxable, unless made so 
 by constitutional or statutory law. They would not be 
 included under the general terrti, "property," unless that 
 word be specially defined to include tliem.^ In this respect 
 they are not unlike a chose in action, which, for purposes of 
 taxation, are not included in the term "property" unless 
 specially made so by statute or clearly within its meaning 
 and provisions.^ When franchises are taxable, it becomes 
 
 This is real estate in its highest 
 sense. Lands, tenements and heredi- 
 taments are included, under the 
 general term, land. By including 
 all leasehold estates, and all posses- 
 sory claims, and actual possession of 
 public lands as the second class of 
 realty to be listed and taxed as such, 
 then all improvements not immova- 
 ble, such as buildings, fences, etc., 
 put by the lessee upon his landlord's 
 estate, which, by the tenure of the 
 lease, are not to belong to the land- 
 lord, are in contemplation of the 
 revenue act, subject to be removed 
 off, and do in fact, belong to the 
 tenant; and of this character of 
 property are buildings, fences, etc., 
 on public lands of the United States; 
 and all such property is to be listed 
 as personal property to the owner of 
 the buildings, etc., and not to the 
 owner of the fee, and this upon the 
 ground, that no permanent fixture 
 can attach to a mere possessory in- 
 terest in land. Hence, this rule 
 must be particularly followed in re- 
 
 gard to public lands, where the fee 
 is in the United States. People v. 
 Owyhee M. Co., 1 Ma. 412. 
 
 2 In the case last referred to (Peo- 
 ple v. Owyhee M. Co., Ida. 41.S), the 
 court, after stating the rule in as- 
 sessing a possessory claim to public 
 lands continued in the following lan- 
 guage: "but his" (owner of posses- 
 sory claims) " buildings and improve- 
 ments on such claim must be listed 
 to him as personal property, with a 
 description of the property." 
 
 1 Sec. 4, Ang. & Ames Cor. 
 
 2 The first section of Art. XIII. 
 Con. of California contains a pro- 
 vision requiring that, " All property 
 in the state, not exempt under the 
 laws of the United States, shall be 
 taxed in proportion to its value, to 
 be ascertained as provided by law." 
 But the framers of the second consti- 
 tution did not consider this broad 
 enough to include franchises, and 
 therefore added the following : " The 
 word ' property,' as used in this arti- 
 cle and section, is hereby declared to 
 
DESCRIPTION OF PERSONAL PROPERTY. 
 
 225 
 
 a question of statutory provision, whether they are to be 
 separately assessed, or may be included in the general valu- 
 ation with other personal property.^ 
 
 Sec. 126. Choses in Action— Description of.— Choses in ac- 
 tion, so far as they relate to the debt are, " A right to re- 
 ceive or recover a debt, or money, or damages for a breacli 
 of a contract but which cannot be enforced without action."^ 
 They are not tangible property and are assessable only 
 when made so by organic or statutory law.^ This doctrine 
 
 include moneys, credits, bonds, 
 stock, dues, franchises, and all other 
 matters and things, real, personal 
 and mixed, capable of private own- 
 ership," etc. The legislature, under 
 this constitutional provision, defined 
 the word property, in the first clause 
 of section 3617, P. C, which reads 
 as follows : " First — The term ' prop- 
 erty,' includes moneys, credits, 
 bonds, stocks, dues, franchises, and 
 all other matters, and things real, 
 personal, and mixed, capable of 
 private ownership." People v. Hi- 
 bernia Bank, 51 Cal. 243. 
 
 ^ San .Jose Gas Co. v. January, 57 
 Cal. 614. " Whether a franchise has 
 any value, and if any, what is its 
 value, are questions for the assessor 
 to determine. In this case, the as- 
 sessor deducted from the market 
 value of the entire shares of stock 
 of the corporation held by the share- 
 holders, the actual value of the 
 property of the corporation, and 
 assessed the difference as the value 
 of the franchise, thus: he found 
 the market value of the stock to be 
 $240,000, and the actual value of the 
 corporation's property to be $110,000; 
 the difference he concluded to be the 
 value of the franchise, which he 
 assessed at $130,000." This valuation 
 the Board of Equalization had re- 
 fused to change. The franchise con- 
 sisted of the privilege of laying 
 down mains, through the streets, for 
 the purpose of supplying gas to the 
 15 
 
 citizens, and it was objected to this 
 valuation of the franchise, that by 
 the provisions of the constitution of 
 the state, any corporation, under, 
 the supervision and directions of the 
 superintendent of streets could e.x- 
 ercise the same privilege; but the 
 court said in reply to this objection 
 that, "by section 1, art. 13 of the 
 constitution, franchises are declared 
 to be property for the purposes of 
 taxation. The method of assess- 
 ment, and by whom, was to be, and 
 was, provided for by law. Therefore 
 it does not rest with the plaintiff, or 
 with the courts to determine that its 
 franchise had no value. In a pecu- 
 niary sense, the value of franchises 
 may be as various as the ol)jects for 
 which they exist, and the methods 
 by whicli they are employed, and 
 may change with every moment of 
 time; but that franchises are prop- 
 erty, and are taxed in some method, 
 in proportion to value, is a part of 
 the paramount law of the state." 
 Id. 616. 
 
 ^Bouv. Law Die. — title, "Chosen 
 in Action." 
 
 2 The question whether a solvent 
 debt was taxable under the old 
 constitution of California and how 
 far they were obnoxious to the 
 principle which forbids double taxa- 
 tion, has been the subject of much 
 litigation in that state. The consti- 
 tutional provision referred to was in 
 thqse words: " All property in tliisl 
 
226 
 
 THE LAW OF ASSESSMENTS. 
 
 applies to all property tangible as well as intangible. Taxes 
 are only imposed by express authority. A class of property 
 
 state shall be taxed in proportion to 
 its value, to be ascertained as direct- 
 ed by law," etc. (Sec. 13, Art. XI 
 Con. Cal. ) A statute classifying 
 personal properly to be assesseil and 
 including among others "solvent 
 debts, exceeding what may be due 
 from such person, corporation, asso- 
 ciation, or firm," was sustained 
 v/here the assessment was for a debt 
 secured by mortgage. People v. 
 JleCreery, 34 Cal. 437. In a later 
 case Justice Crockktt adopted a 
 course of reasoning which would 
 bring a debt for borrowed money 
 within the principle inhibiting dou- 
 ble taxation. He uses the following 
 language: " Tlie money is the sub- 
 stance, of which the debt is but the 
 shadow and representative; and 
 though in a general, and, perhaps, 
 in a strict sense it" (the debt) "is 
 property ; it is so only because it is 
 capable of being again converted 
 into money. Nevertheless it but 
 represents the sum originally loaned, 
 and a tax upon the latter, is sub- 
 stantially a tax upon the former." 
 Savings and Loan Society ». Austin, 
 46 Cal. 487. In the same case, as 
 illustrative of the effect to produce 
 double taxation, caused by taxing 
 solvent debts, counsel give as an 
 example the taxation of tangible 
 property in the hands of A. for 
 a stock of goods of the value of 
 §100,000; A. being indebted to B. 
 gives him his note for $80,000 se- 
 cured on this stock of goods, having 
 no other property; B. being indebted 
 to C. gives him his note for $60,000, 
 and gives him A.'s note as collateral 
 security, and has no other property; 
 C. being indebted to D. gives him 
 his note for $40,000 and the note of 
 B. as collateral security, and has no 
 other property; here we would have 
 
 the following property and solvent 
 debts for taxation : 
 
 1. A.'s stock of goods, . $100,000 
 
 2. B.'s solvent debt (A.'s 
 
 note) .... 80,000 
 
 3. C.'s solvent debt (B.'s 
 
 note) .... 60,000 
 
 4. D.'s solvent debt (C.'s 
 
 note) .... 40,000 
 
 Total, . . . $280,000 
 
 And only actual property of 
 the value of . . $100,000 
 
 Increased for taxable pur- 
 poses by . . . $180,000 
 Id. p. 450,451. In a still later case 
 in the same court, it was held that 
 " there is no provision in the politi- 
 cal code which requires in terms, 
 that debts secured by mortgage shall 
 be taxed." The code declared that 
 "the words ' personal property-" in- 
 clude money, goods, chattels, evi- 
 dence/) of debt and things in action." 
 Justice MoKiNSTRY, in an able 
 opinion, takes the position that the 
 legislative requirement for the taxa- 
 tion of choses in action, if it be 
 regarded as such, is in direct conflict 
 with the requirement of the consti- 
 tution that " Taxation shall be equal 
 and uniform throughout the state." 
 (Sec. 13, Art. XL Con. Cal.) On 
 this point he used the following lan- 
 guage: "But to declare, that it is 
 the duty of the assessor to assess all 
 ' things in action,' is to give a con- 
 struction to the constitution which 
 must lead to the grossest absurdities. 
 The constitution, in its application 
 to the various departments of the 
 goverinnent and to individual rights> 
 must receive such a construction as 
 to give it a practical operation. 
 There would be a contradiction in 
 the single section of the coustitu- 
 
DESCEIPTION OF PERSONAL PROPERTY. 
 
 227 
 
 may exist within the state, not included within general 
 revenue laws, and for want of statutory provision, may not 
 
 tion, if it were construed as requir- 
 ing tliat nil property sliould be taxed 
 equally and uniformly, with refer- 
 ence to its value, and tliat tlie word 
 property includes those things practi- 
 cally incapable of an appraisement 
 bearing any definite relation or pro- 
 portion to other things or prop- 
 erty. . . . Yet the constitution re- 
 quires that all property shall be 
 assessed on the ad valorem principle 
 by local assessors. All property 
 wliicii is visible and tangible is 
 capable of sucli assessment; choses 
 in action are not. The word ' prop- 
 erty ' has been used in our language 
 in several senses; but in the case in 
 hand we cannot be limited to the 
 meaning given it by the code, but 
 may also, — and such is our duty — 
 look for its meaning in the constitu- 
 tion. The constitution provides that 
 no property, as property, shall be 
 taxed, except such as is capable of a 
 valuation by the assessors, which 
 shall be ratably equal and uniform 
 with that affixed to all other prop- 
 erty." As illustrative of the im- 
 policy if not impossibility of taxing 
 solvent debts without double taxa- 
 tion, the learned judge used the 
 following: " Supposing — what would 
 tlius be possible in theory — that the 
 necessities of government required 
 a tax of one hundred per cent, on 
 all values; or what would be tlie 
 result of such a tax, an appropria- 
 tion of all the property in the state, 
 it is plain that tlie state would 
 receive no benefit from evidences of 
 debt due by some of lier citizens to 
 others, and payable out of the tangi- 
 ble property which the state had 
 already taken. It is property in 
 possession or enjoyment, and not 
 merely in right, which must ulti- 
 mately pay every tax. The legisla- 
 
 ture may declare that a cause of 
 action shall be taxed, but a cause of 
 action cannot pay the tax; and this 
 because it has, and can have, r>o 
 value independent of the tangible 
 wealth out of whicli it may be satis- 
 fied. . . . But if a debtor is found 
 to be the owner of a thousand dol- 
 lars, and is assessed for that sum, 
 and his creditor is found to be the 
 owner of his note for one thousand 
 dollars, and is assessed for a like 
 sum; and, if the day after tlie visit 
 of the assessor to the creditor the 
 debtor shall pay his note, it is clear 
 that the same has been twice taxed ; 
 since the debtor has parted with liis 
 money, and received only that which 
 is certainly not taxable property in 
 his hands, and which can never, 
 afterwards be assessed. When a 
 debtor pays his debt, he does not 
 abstract or destroy any portion of 
 the taxable property of the state; 
 the aggregate of values remains the 
 same." People v. llibernia Bank, 
 51 Cal. 244, 24.5, 247. A later case 
 in the same court would seem to be 
 in conflict with the doctrine of this 
 case, (People v. Hibernia Bank,) 
 but Justice Thoenton, the author 
 of the opinion, declares ihat there is 
 nothing in the views expressed in 
 conflict with it. He was considering 
 the liability of bank shares to taxa- 
 tion, but under a new constitution 
 which expressly provided for the 
 taxation of choses in action ; and 
 also under provisions of the Political 
 Code of that state which exempted 
 shares of a corporation from taxa- 
 tion, where its capital stock is taxed. 
 The following is the text of the 
 opinion on this point: "It is not 
 denied that shares in the capital 
 stock of corporations were what is 
 usually styled property, when the 
 
228 
 
 THE LAW OF ASSESSMENTS. 
 
 be within the reach of the officers charged with the duty of 
 making assessments. As to such property, until the legis- 
 lative will is expressed it cannot be subjected to taxation.** 
 Choses in action are usually taxed under the term "solvent 
 debts," "credits," "bonds," etc. It is within the province 
 of the legislature to require all this character of property 
 to be taxed in proportion to its value, the same as other 
 tangible propert}-. And where this is the requirement, a 
 general designation of the character of the property is a 
 sufficient description, unless more is required by express 
 statute. Thus in an assessment for money loaned or for 
 solvent debts, all the property assessed of that class may be 
 described as "money loaned" or "solvent debts." ^ If the 
 
 assessment in this case was made, 
 and if it was denied, we sliould 
 nevertheless hold them property. 
 The reasons for such holding, are 
 too manifest to require enumeration ; 
 and by the 13th section of the 11th 
 article of the constitution of 1849, it 
 was declared that all property in 
 this state should be taxed In propor- 
 tion to its value, i&c. It has been 
 considered as the proper interpreta- 
 tion of the constitution referred to 
 ever since the elaborate judgment in 
 the case of The Peoples. McCreery, 
 34 Cal. 433, that all private property 
 was taxable in this state, and that 
 the legislature had no power to ex- 
 empt any of it from taxation. Tliis 
 ruling was approved in People v. 
 Gerke, 35 Cal. 678, and in People 
 V. Black Diamond C. M. Co., 37 
 Cal. 50. The word ' property ' is used 
 in no peculiar sense in the section 
 of the constitution referred to, but 
 in its popular and ordinary one. 
 People V. Eddy, 43 Cal. 336. There 
 is nothing in People v. Hibernia 
 Bank, 51 Cal. 243, in conflict with 
 what is here said." City and County 
 of San Francisco v. Flood, 1 W. C. 
 Rep. 568 (Cal.) ; s. c. 2 Pac. Kep. 266. 
 (Cah ) It may be conceded, that the 
 People V. Hibernia Bank is the 
 
 proper construction of the old con- 
 stitution of California as to the 
 non-taxable character of chones in 
 action; but it proved to be unsatis- 
 factory to the people of that state, 
 and in the framing of a new consti- 
 tution, afterwards adopted, express 
 provision was made for the taxation 
 of all classes of that character of 
 propeity. (Sec. 1, Art. 13, Cons. 
 Gal.) 
 
 2" People V. Moore, 1 Ida. 504 
 (seen. 6, §55). 
 
 ^ Under a statute specifying the 
 different classes of personal property 
 subject to taxation, that Including 
 solvent debts being in the following 
 language: "All money at interest 
 or loaned, whether secured by pledge, 
 mortgage or otherwise; all solvent 
 debts exceeding what may be due 
 from such person, corporation, asso- 
 ciation or firm," and the descrip- 
 tion in the assessment of a solvent 
 debt was "money," valuation 
 "$5,000"; "money loaned," val- 
 uation " $125,000," the figures be- 
 ing placed in the appropriate column 
 under dollar marks, it was held to be 
 a sufficient description. People v. 
 McCreery, 34 Cal. 441. In Falkner 
 V. Hunt, ante, it was held that the 
 general designation, " personal prop- 
 
DESCRIPTION OF PERSONAL PROPERTY. 
 
 229 
 
 description be such as was given by the taxpayer in the list 
 which he is reqnired to furnish, lie will not be heard to 
 object, that the description is insufficient.* Where the rev- 
 enue laws provide for the taxation of debts and evidence of 
 indebtedness, a claim or demand that is not liquidated or 
 which is contingent, is not subject to assessment.^ The 
 
 erty," was not a sufficient descrip- 
 tion; that tlie difEereut classes of 
 property should be stated "as 
 goods, money loaned, gold dust, 
 solvent debts"; but this, it will 
 be observed, is only a general de- 
 scription of a class of property, no 
 such description as would identify 
 the several items that make up the 
 list, as in the case of real estate, or 
 an action for the possession of per- 
 sonal property. Under a statute 
 whicli provided the mode of describ- 
 ing property in making the assess- 
 ment for taxable purposes, the 
 provision relative to personal prop- 
 erty was in the following language: 
 " Fifth. The cash value of all per- 
 sonal property, except improvements 
 in real estate, or public lands, taxa- 
 ble to each. Sixth. The total value 
 of all property taxable to each, and 
 no further description of personal 
 property than that required by the 
 foregoing provisions of this section 
 shall be needed, or be requisite, to 
 render the assessment binding and 
 effective." The provisions of thi^ 
 statute were referred to in the case 
 of People V. Sneath & Arnold (28 
 Cal. 614), where the entire of the 
 personal property was grouped to- 
 gether and assessed under the 
 general designation, " personal 
 property," and this description 
 was held sufficient under the stat- 
 ute. In the case of People v. Mc- 
 Cfeery (ante), Justice Rhoadbs 
 said: "The terms and manner of 
 description are the proper subject of 
 legislative action," which may be 
 affirmed as the rule both as to real 
 and personal property. 
 
 * Where the property was described 
 in the assessment roll as " mining 
 stock," under a statute providing 
 the rule for the assessment of per- 
 sonal property in language as fol- 
 lows: "All personal property, 
 showing the nunibei-, Ivind, amount 
 and quality, hut a failure to enume- 
 rate in detail such personal property, 
 does not invalidate the assessment 
 roll " (Polit. C. Cal. § 3650, as amended 
 1881, p. 59), and this was the same 
 description contained in the assess- 
 ment list furnished to the assessor, 
 it was held in a recent case in Cali- 
 fornia that the description was suffi- 
 cient. All the decisions previously 
 rendered in that court, including 
 those cited in this chapter, were re- 
 viewed and approved. The court, 
 however, laid much stress upon the 
 fact that the property was described 
 as it had been, in the assessment list. 
 This language is used in the opinion : 
 " If the description of the property 
 assessed in the assessment is certain 
 enough to inform the tax-payer for 
 what he is to be taxed, it is suffi- 
 ciently certain. ' Mining stocks ' 
 could scarcely be misunderstood by 
 any man of ordinary intelligence in 
 this state, or indeed in the com- 
 mercial world, among all English- 
 speaking people." San Francisco 
 V. Flood, 1 West C. E. 568 (Cal.). 
 
 ^ Where a land owner had a claim 
 of damages against the city for land 
 taken in tlie alteration of a highway, 
 until the damages to which he was 
 entitled had become fixed and re- 
 ceivable as his personal estate, this 
 claim did not constitute a debt whicli 
 could be included in his ratable es- 
 
230 
 
 THE LAW OP ASSESSMENTS. 
 
 purchase price of property to be conveyed upon full pay- 
 ment, while unpaid is not taxable. To tax the vendor with 
 the land and also with the purchase price as a solvent 
 debt, would be double taxation. In such case the vendee 
 might be taxable for any payments made, as solvent cred- 
 its." But where the sale is absolute; part of the purchase 
 money paid, the payment of the balance to be made at a 
 time agreed upon, and nothing remains to be done but for 
 the vendor at the proper time to make a deed and demand 
 the unpaid purchase money, a credit is created wliich is tax- 
 able to the vendor as a chose in action.'^ And this result, 
 it seems will follow, under the system of taxing credits, not- 
 withstanding the liability of the vendor to be taxed for the 
 property sold before it is paid for and conveyed to the pur- 
 chaser.'^ 
 
 tate, under the General Statutes. 
 Lowell V. Street Commissioners of 
 Boston, 106 Mass. 540. 
 
 " The owner, a resident of Kansas, 
 sold land situated io Illinois, and by 
 the terms of the sale the purchaser 
 gave notes for the purchase money, 
 which were deposited with a banker 
 in Illinois, the title to the land to re- 
 main in the vendor until paid for, 
 and as fast as the purchase money of 
 80 acres was paid a deed to be made 
 therefor; these notes, being deposited 
 subject to those contingencies, were 
 not assessable to the vendor as part 
 of his personal property in Kansas. 
 While he remained the owner of the 
 land it was assessable to him, and to 
 assess him with tlie notes and the 
 land both would be a double assess- 
 ment to the vendor. Wilcox o. Ellis, 
 14 Kan. 588. An agreement was 
 made for the purchase of a hotel 
 property at $50,000. On this agree- 
 ment $5,000 was paid. The deed 
 was not executed. The vendees 
 were in possession. The assessor 
 entered the land to the occupants at 
 $50,000, and also the unpaid pur- 
 chase money, making a valuation 
 of .$95,000. This was held-to be 
 
 "oppressive and illegal," and the 
 $45,000 was deducted. State — Kuth- 
 erford Park Association v. Township 
 of Union, 36 La. An. 310. 
 
 ' In Iowa taxes were levied and 
 assessed with reference to ownership 
 of taxable property on the first day 
 of January. In the month of De- 
 cember, 1882, Perrine made a con- 
 tract of sale of a farm with Jacobs, 
 at the price of $6,000, and received 
 $100 on the purchase money; the 
 balance was to be paid on the first 
 of March following, when a deed 
 was to be made. Perrine remained 
 in possession until the time for pay- 
 ment, when he made and delivered 
 a deed and possession, and received 
 tlie balance of the purchase money. 
 The assessor in 1883 assessed Per- 
 rine, for moneys and credits, the 
 sum of $2,000. No notes were given 
 or received for this purchase money, 
 and Perrine had no other taxable 
 money or credits than as stated on 
 the first of January, 1883. In sus- 
 taining this assessment the court 
 used the following language : " The 
 term 'credit,' as it is used in the 
 statutes which provide for the as- 
 sessment of property for taxation, is 
 
DESCKIPTIOX OF PERSONAL PEOPEKTY". 
 
 231 
 
 Sec. 127. classification of Real and Personal Property. — 
 It is within the province of the legislature to classify all 
 property, both real and personal, for taxable purposes, and 
 when this is done, the assessment must be made, at least 
 substantially, to conform to such classification. This 
 is done, invariabh", as regards both r?al and personal 
 property. An apparent reason for this is — that real prop- 
 erty is fixed, immovable, and can be identified by a proper 
 description. It is therefore universally required that in 
 listing real estate for taxation, it must be described with 
 reasonable certainty. And as different estates may be 
 owned or held in the same land when this is so, it is within 
 the province of the legislature to require each to be 
 
 defined by see. 802 of the Code, and 
 it ' includes every claim and de- 
 mand for money, labor, or other val- 
 uable thing.' The single question 
 presented by the case is whetlier tlie 
 transaction between plaintiff and 
 Jacobs created a credit in favor of 
 plaintiff within the meaning of the 
 term as thus defined. Plaintiff's po- 
 sition is that, as tlie undertakings of 
 the parties were dependent, he had 
 no claim or demand against Jacobs 
 for the unpaid portion of the pur- 
 chase money until he executed a 
 conveyance of the premises and ten- 
 dered it to him. It is probably true 
 that the acts to be performed by the 
 parties under the contract were so 
 far dependent as that neither could 
 enforce performance by the other 
 without first performing, or offering 
 to perform, his own undertaking. 
 But each had it in his power to en- 
 force performance by the other. He 
 had but to do, or offer to do, the act 
 which he had agreed to do, and he 
 would thereby render the other party 
 absolutely liable. If plaintiff, at the 
 time agreed upon, tendered to Jacobs 
 such a conx'teyance of the farm as he 
 agreed to give him, the latter had no 
 election but to pay the money. The 
 contract created a liability by Jacobs 
 
 which was dependent only on the 
 performance by plaintiff of his un- 
 dertakings thereunder. Plaintiff had 
 the right, at the stipulated time, to 
 demand payment of the money; he 
 also had the power to enforce pay- 
 ment if there should be a refusal by 
 Jacobs to pay. It seems to us en- 
 tirely clear that the contract creates 
 a ' claim and demand for money ' in 
 favor of plaintiff which was assess- 
 able as a credit." Perrine v. Jacobs 
 and others, 19 N". W. Rep. 861 (Iowa). 
 Tills presents a clear case of double 
 taxation, which is often a necessai'y 
 consequence of taxing "credits" 
 and chores in action. Had the con- 
 tract of sale been assessed at i ts full 
 value, there would have been in the 
 particular case a double taxation to 
 Perrine of $5,900— $100 having been 
 received, as it was, the amount was 
 only $1,900. Supposing that the 
 farm sold was the only taxable 
 property Perrine had when he en- 
 tered into the contract to sell it to 
 Jacobs, in December, 1882, his en- 
 tire wealth consisted of only $0,000 — 
 ill land. How did he stand after the 
 contract of sale was perfected ? He 
 had a farm, encumbered by a con- 
 tract of sale at $3,000 — on which he 
 had received $100 — so that all his 
 
232 
 
 THE LAW OF ASSESSMENTTS. 
 
 assessed and described separately. The same rule applies 
 to personal property; at least so far as dividing the differ- 
 ent kinds of property into separate and distinct classes. 
 Whatever provisions exist in the statute authorizing the 
 assessment, requiring either real or personal property to be 
 divided into classes or listed with respect to the character 
 of the property, into distinct classes, must be observed ; 
 and if, in violation of such requirements, the different 
 classes of property are interblended in the listing and valu- 
 ation, the assessment will be invalid and the tax cannot be 
 enforced.^ 
 
 wealth from all sources could not 
 rise higher than $6,000, and this was 
 his condition on the first day of Jan- 
 uary, 1883, and until the first day of 
 March following. On that day he 
 was bound by his contract to deliver 
 to Jacobs a, deed for his farm and 
 accept $5,900, the balance of the 
 purchase money, and tlie facts show 
 that this was done. What was his 
 wealth then ?— " $6,000 "—not a dol- 
 lar more. And yet, on this stale of 
 facts, on the first day of January he 
 was assessed for his farm (which we 
 are to ijresume was $6,000) and for a 
 credit, on account of his contract of 
 sale of the farm and the $100 re- 
 ceived on the purchase money, the 
 further sum of $2,000, which, under 
 the same legal liability by which the 
 assessment for the $2,000 was sus- 
 tained, might as well have been 
 $6,000. To have made an equitable 
 assessment against Perrine, he ought 
 to have been assessed only for his 
 farm and the $100 received on the 
 contract of sale. This is all the ac- 
 tual wealth he had on the first day 
 (if January, 1883, from the premises 
 stated. This objection to the tax, 
 from the report of the case, does not 
 seem to have been presented, and 
 perhaps, under the Code provision, 
 would not have been available. 
 
 ^ The case of the People v. Owy- 
 hee Mining Company, 1 Ida. 410, 
 
 grew out of an assessment made un-' 
 der a statute dividing real estate into; 
 two classes, and also dividing per- 
 son.-d property into classes for taxa- 
 tion. Eeal estate was divided into 
 two classes as follows: 1. Lands 
 and immovable improvements. 2. 
 Possessory claims or interests in 
 public or private lands, where the 
 title or fee was not in the possessoiy 
 claimant or owner. Personal prop- 
 erty was made to consist of two gen- 
 eral classes, as follows : 1. Buildings, 
 fences and other movable super- 
 structures. 2. All other property 
 which was not real property. The 
 court in construing these statutory 
 requirements, said: "If A. is the 
 owner of land in fee and B. has a 
 leasehold estate in the land for any 
 term, great or small, and has a shop, 
 or any other building, or fence 
 erected thereon by him, and which 
 belongs to him, the land in fee, with 
 the immovable fixtures belonging to 
 the fee, must be listed to the owner 
 of the fee, A., as realty; the lease- 
 hold estate of B. must be listed to 
 him as realty, and the shop, build- 
 ings or other improvements of B. 
 which belong to him, must be listed 
 to hini as personal property; and 
 where a party holds a possessory in- 
 terest or claim, upon lands belonging 
 to the "United States, that interest 
 must be listed to him as real prop-. 
 
DESCraPTION OF PERSONAL PROPERTY. 
 
 233 
 
 erty, particulaily showing whether 
 it be a possessory claim, leasehold 
 estate, or whatever it maybe; but 
 his buildings and improvements on 
 such claim must be listed to him as 
 personal property, with a description 
 of the property. This construction 
 is in harmony with the provisions of 
 section 18 aforesaid, which provides 
 that the assessment roll sliall con- 
 tain 'a list of all real estate, im- 
 provements in public lands, and 
 other personal property.' The four 
 classes of property mentioned in the 
 revenue lav^ are to be listed, set 
 down, and valued separately in an 
 assessment roll. It was further held 
 that the assessment should describe 
 each class of property; the improve- 
 ments should be described, and their 
 location on the land as nearly as 
 possible should be given. The cash 
 value of real estate and improve- 
 ments thereon should be valued to- 
 gether, and the improvements treat- 
 ed as part of the realty. The cash 
 value of a leasehold or possessory 
 claim, assessed under the head of 
 real estate, should be valued sepa- 
 rately. Improvements on land which 
 are required to be assessed as per- 
 sonal propeity, should be described 
 and valued separately; but all other 
 personal property need not be de- 
 scribed, but should be valued sepa- 
 rately." By this interpretation the 
 court add: ''The assessor is re- 
 quired in listing the property of the 
 tax-payer, after giving the date of 
 the assessment and the name of the 
 tax-payer, &c., then to set down to 
 him his land in fee, including the 
 immovable improvements thereon, 
 with such a description as is required 
 
 by section 18, and to assess such land 
 and immovable improvements in a 
 valuation, placed in an appropriate 
 column. Then, to set down any pi is- 
 sessory claim or any leasehold estate, 
 which he may hold, describing it as 
 possessory or leasehold interest, so 
 as to designate its extent and char- 
 acter, with a description of the land 
 upon whicii the interest is held, 
 similar to the description of the land 
 of the first class, as near as may l)e, 
 wliere the fee> is taxed, giving the 
 value of the possessory or leasehoid 
 interests, as the case may be, with- 
 out any regard to the fee, which fee, 
 if private property, must be taxed 
 to the owner thereof, and if the fee 
 is in the United States, then the fee 
 cannot be taxed. The buildings, 
 structures, etc., belonging to the tax- 
 payer, who does not own the fee 
 upon which each structure stands, 
 shall be listed as improvements on 
 the public lands, and such improve- 
 ments shall be described, and valued 
 separately from the 'land on whicli 
 they stand, and from the possessory 
 interest therein, as the first class of 
 personal property." The same view 
 was taken by the Supreme Court of 
 California when a possessory claim 
 to public lands is assessed, in the 
 case of People v. Shearer (30 Cal. 661 ) , 
 wherein the court say: "It" (the 
 possessory claim) " should doubtless 
 be listed as the possessory interest 
 and claim of (A. B.) of and to the 
 tract of land described as follows" 
 (giving the apprepriate description 
 of the land). "And the value of 
 the possessory right should be set 
 down, and not the value of the land 
 itself." 
 
234 THE LAW OF ASSESSMENTS. 
 
 CHAPTER XII. 
 
 VALUATION. 
 
 Sec. 130. Valuation— the ofBcial act of the Assessor.— An 
 important and necessary part of the assignment is the val- 
 uation of the propert}^ to be -assessed. In most states, resi- 
 dent tax-payers are furnislied with printed lists to be filled 
 up with the various articles and classes of property subject 
 to taxation, having columns and headings for numbers, 
 amounts and values. Generally the tax-payer is author- 
 ized and sometimes required when filling up these lists, to 
 fix values upon the property. These lists are returned to 
 the assessor who uses them as the basis of the assessment. 
 Unless the statute makes the values fixed by the tax-payer 
 in the list he furnishes conclusive upon the assessor, he is 
 not bound by them and may place values on the same 
 l^roperty, differing from those fixed b}^ the tax-payers, and 
 the values so placed, will stand as the assessment.^ In 
 Florida it was held that in the absence of any express pro- 
 visions to the contrary, in the act under which the assess- 
 ment is made, prescribing a mode of ascertaining the value 
 of property for the purposes of taxation, it was within the 
 province of the assessor to exercise his own judgment in 
 fixing values and that he was not controlled by the value 
 fixed by the person assessed.^ This may be regarded as an 
 expression of the general rule. In making the valuation of 
 personal property that which has a situs outside of the 
 state, is not to be included — otherwise the same property is 
 liable to be taxed for the same year in two or more states.^ 
 The valuation is the official act of the assessor made 
 
 1 Chicago, B. & Q. E. E Co. v. » Pacific Mail Steamship Co. v. 
 Paddock, 75 111. 619. Com'rs of Taxes, 46 How. Pr. 344; 
 
 2 King M. Gwynn, 14 Fla. 32; Peo- (S. C. 58 N". Y. 245.) See ante, § 5U. 
 pie V. Owyhee M. Co., 1 Ida. 414. 
 
VALUATION. 
 
 235 
 
 upon his own judgment as to the actual value of the prop- 
 erty. He ascertains the value as any person would, desir- 
 ing to buy or sell the same, or property of the same or a 
 similar kind and quality.* "Actual value" and "cash 
 value" have the same meaning and maybe defined as being 
 the amount at which the property would be estimated, if 
 taken in payment of a liquidated demand, due from a 
 solvent debtor.^ The mental process by which the assessor 
 arrives at his estimate of values, is not the subject of legal 
 inquiry.^ The law, except in a few instances, furnishes no 
 system for ascertaining values ; and within certain require- 
 ments such as, that property must be assessed at its actual, 
 or cash value, and that assessments must be equal and uni- 
 form as to all persons and property, leaves the matter of 
 values to the judgment of the officer making the assess- 
 ments.^ 
 
 * An assessment raade by an asses- 
 sor "contrary to liis official judg- 
 ment and with Intent to impose an 
 excessive valuation and tax " upon 
 the party assessed is invalid, even 
 when a party fails to furnish a list. 
 State V. Central Pacific Railroad Co., 
 7 Nev. 102. 
 
 5 Sec. 3617 P. C. Oal. People v. 
 Fredericlis, 48 Barb. 177. (See 
 post, 135.) The rule prescribed in 
 Oregon is expressed in the following 
 language: "True cash value shall 
 be taken to mean the amount such 
 property would sell for at a volun- 
 tary sale made in the ordinary course 
 of business, and not what it would 
 bring at public auction or forced 
 sale." Sec. 16, Tit. 3, ch. 57 Mis. 
 Laws Or. 
 
 15 The valuation placed upon prop- 
 erty in an assessment cannot be im- 
 peached in a collateral proceeding. 
 In an action of ejectment, after the 
 defendant had introduced a tax 
 deed, the plaintiff, to rebut the de- 
 fense based on this tax deed, offered 
 to prove by the officer who had 
 made the assessment, that he had 
 
 valued the property at only one 
 third of its actual value, the law 
 requiring all property to be assessed 
 at its cash value. Upon objection 
 made tlie offer was rejected, and this 
 ruling was sustained by the appel- 
 late court. It was held, that in 
 every instance, wherever the charac- 
 ter of the valuation in making the 
 assessment was allowed to be in- 
 quired into, the proceeding was be- 
 tween the proprietary and the public 
 authorities in an action or proceed- 
 ing instituted to annul or vacate the 
 tax, and before the rights of third 
 persons had intervened. Whether 
 an objection by the property owner 
 that the valuation is too low, would 
 be entertained, may well admit of 
 doubt, upon the well established 
 principle, that a party will not be 
 allowed to complain, who has not 
 been injured; but even if the com- 
 plaint be that the valuation is an 
 over-estimate, it is too late to make 
 it after the proceedings have culmi- 
 nated in a sale and conveyance of 
 the property assessed. Blanchard 
 V. Powers, ilST. W. Rep. 542 (Wis.) 
 
236 THE LAW OF ASSESSMENTS. 
 
 Sec. 131. Valuation of tlie Capital Stock, Shares and Prop- 
 erty of Corporations.— In some of the states corporations are 
 assessed for taxation, by simply assessing their property as 
 other property owned by natural persons is assessed. This 
 method of taxation is adopted more especially in states 
 where corporations are created under general laws and the 
 privilege of organizing or forming corporations is unre- 
 stricted, or upon lilce terms may be exercised by all citizens 
 or residents of the state, but this is not necessarily so. 
 The sovereign power which creates or authorizes the forma- 
 tion of corporations in the absence of constitutional restric- 
 tions may also prescribe the mode and extent of their tax- 
 ation ; and having done so, assnming tlie power to have 
 been legitimately exercised, whether the corporation be 
 created by special grant or legislative charter, or under a 
 general law authorizing its formation, the provisions relat- 
 ing to its taxation or exemption from taxation, becomes a 
 contract which cannot afterwards be clianged.^ But where 
 a mode and extent in the charter of a corporation, or the 
 general law authorizing its organization, does not expressly 
 prohibit other or further taxation, additional tax may be 
 imposed. "The established rule of construction in such 
 cases is, tliat rights, privileges, and immunities, not expressly 
 granted, are reserved.^ A specified tax may be prescribed 
 in the charter of a bank, to be in lieu of all other taxation 
 on its corporate franchise ; as for example, a per centum on 
 the amount of deposits received each year — or on the divi- 
 dends declared each year. When such is the case, the 
 assessment is made by ascertaining the aggregate of depos- 
 its or dividends and fixing the amount of tax accordingly.* 
 It will be necessary always to consult the charter law of the 
 corporation to be assessed, or the statute law under which 
 the assessment is to be made, in order to determine the 
 course to be pursued in making the assessment. Corpora- 
 tions are generally required to furnish sworn statements of 
 
 1 Dartmouth College Case, 4 'The Common wealth v. The 
 Wheat. 519; The Delaware Railroad Eastou Bank, 10 Penn. St. 451; 
 Tax, 18 Wall. 225. Commonwealth v. The People's Five 
 
 2 The Delaware Railroad Tax, 18 Cent Savings Bank, 5 Allen 430. 
 Wall. 225. 
 
VAL CATION. 
 
 237 
 
 tlieir property with values. These, as in the case of indi- 
 viduals furnisliing lists of tiieir property for taxation, are 
 used as a basis for the assessment, but are not conclusive ; 
 and otlier values may be given by the assessor, ascertained 
 from other sources of information.* Where the statute 
 
 *0n this point Justice Denio 
 remarked: " If it were alleged that 
 this" (the nominal capital) "did 
 not represent its" (the stock's) 
 "actual value it would be their duty 
 to look at its market price, and if 
 necessary, to ascertain the character 
 and worth of the securities in which 
 its funds had been invested. It 
 would be equally their duty to in- 
 quire whether any of this property, 
 into which the capital had been con- 
 verted, was exempted by law from 
 taxation. Prima facie, it may be 
 that the nominal amount of the 
 capital would be considered its ac- 
 tual value, but where it should be 
 shown that it" (the corporation) 
 "had met with losses, or that its 
 investments had otherwise depre- 
 ciated, other means would have to 
 be resorted to, in order to ascertain 
 the actual value of the assets in 
 which its capital consisted. The 
 market price of its shares would 
 ordinarily furnish a practical test; 
 but either the assessor or the tax- 
 payer, would have a right to exam- 
 ine and have an estimate made, of 
 tlie value of the securities." People 
 V. Commissioners of Taxes, 23 N. Y. 
 194. In Kansas the value fixed by 
 the tax-payer on personal property 
 in the list furnished to and returned 
 by him, can only be changed upon 
 notice and on inquiry by the county 
 clerk or the commissioners. And 
 the law for valuing railroad property 
 for taxation applies the same rule. 
 Kansas Pacific Railway Co. v. Wy- 
 andotte Co., 16 Kan. 587-. The 
 provisions of section 3664 of the 
 Political Code of California requires 
 
 all railroad companies owning or 
 operating a railroad in more than 
 one county in the state, to furnish a 
 sworn statement of the property of 
 such road and its value. If the 
 company fail or neglect to furnish 
 such statement, the State Board of 
 Equalization, whose duty it is made 
 to assess property of that character 
 in the first instance, is authorized to 
 assess the property without such 
 statement, .ind " the assessment 
 made by the State Board of Equali- 
 zation upon the property of the cor- 
 poration, person or association fail- 
 ing to furnish the statement is 
 conclusive and final." Under the 
 provision of the code, a railroad 
 corporation furnished a sworn state- 
 ment, but in the assessment the 
 State Board of Equalization fixed 
 higher values to the property. The 
 corporation sued out a writ of cer- 
 tiorari to so far modify the assess- 
 ment as to I'educe the values to the 
 amounts contained in its sworn 
 statement. Justice McKikstby in 
 rendering the. decision used the fol- 
 lowing language after noticing the 
 code requirements: "But the con- 
 stitution imposes the duty of asses- 
 sing the property of the corporations 
 upon the State Board of Equaliza- 
 tion. The provision of the code 
 ought not to be construed, and can- 
 not fairly be construed, to make each 
 railroad corporation the assessor of 
 its own property, in case it chooses 
 to file a statement. Doubtless the 
 board will place much reliance upon 
 tlie statements, and will start with a 
 presumption that they are correct, 
 but if satisfied that property hi^s 
 
238 THE LAW OF ASSESSMBKTS. 
 
 defines the right of way, including structures of main, 
 side or second track, turnouts, stations and improvements 
 of the company on the right of waj- — to be real estate for 
 the purposes of taxation — to be denominated " Rail Road 
 Track" and to be so listed by the State Board of Equaliza- 
 tion and required all other real estate, including the 
 stations and other structures thereon, to be assessed by the 
 local assessors, when it is charged that any of the right of 
 way assessed by the Board of Equalization as "railroad 
 track" was included by the local assessor in his assessment, 
 and that a double assessment lias been made, the burden of 
 proof is upon the complainant.^ 
 
 Sec. 132. Valuation of capital stock and Shares, or capital 
 Stock and Property, ■would be double Taxation. Franchise. — 
 When the property of a corporation is assessed at its actual 
 value, its stock lias no taxable value. Under such circum- 
 stances, an assessment of tlie stock would be double taxa- 
 tion. This is recognized by the Political Code of California 
 in a section (§ 3608) reading as follows: Shares of stock in 
 corporations possess no intrinsic value over and above the 
 actual value of the property of the corporation which they 
 stand for and represent, and the assessment and taxation 
 of such shares and also of the corporate property would be 
 double taxation. Therefore all property belonging to cor- 
 porations siiall be assessed and taxed, but no assessment 
 shall be made of shares of stock, nor sliall any holder thereof 
 
 been omitted from thefti by mistake, scarcely be hoped for. In perf orm- 
 
 or that the valuation in them con-, ing this part of the assessment, the 
 
 tained is too low, must perform its assessor acts judicially, or officially, 
 
 duty of assessing all the property at and the same presumptions are in- 
 
 its 'actual value.' " S. F. &. N. I', dulged in favor of his estimates of 
 
 li. K. Co. V. The State Board, 60 value, as are extended to the official 
 
 Cal. 31. If the values fixed by per- action of other officers, judicial, 
 
 sons furnislilng tax lists were bind- executive and ministerial, 
 
 ing or conclusive upon the assessor, ^The C, B. & Q. K. R. Co. 15. 
 
 it would practically malte each tax- Paddock, 75 111. 617. It is not 
 
 payer furnishing a list, the assessor necessary to state the items of value 
 
 for taxable purposes, of his own which enter into valuation of the 
 
 property. Under any such system, capital stock of a corporation. New 
 
 valuations would, doubtless be low, Orleans &c. R. Co. v. Board of Asses- 
 
 and uniformity in tlie assessment of sors, -32 La. Ann. 19; New Orleans v. 
 
 property of the same value, could Louisiana Sav. Bank, 31 La. An. 826. 
 
TALUATIOlSr. 239 
 
 be taxed therefor."^ But under a constitutional provision 
 making "francliises and all other matters and tilings, real, 
 IDersonal and mixed, capable of private ownership," taxable, 
 the franchise of a corporation would be an item of personal 
 property subject to be assessed in addition to the property 
 of the corporation.^ When all the property of a corpora- 
 tion is tHxed at its actual value, as already stated, the stock 
 of the corporation has no taxable value. To tax the prop- 
 erty of the corporation at its actual value and also assess a 
 value against the shares, would be double taxation. This 
 principle is recognized in the Political Code of California, 
 (already referred to) after the adoption of a constitution 
 making " credits, botids, stocks, franchises and all other 
 matters and things, real, personal and mixed, capable of 
 private ownership," taxable. But this doctrine .does not 
 apph' to shares in foreign corporations even where, by the 
 law of the state where the corporations have their existence, 
 shares therein are exempted from taxation. The same per- 
 son, therefore, owning shares in both kinds of corporations, 
 may be subjected to taxation on tlie one class, while he is 
 
 ' The constitution of California, at v. Board of Equalization (60 Cal. 
 
 the time of tlie enactment of this 00), the court held in the follow- 
 
 section of the Code, provided as fol- ing language with reference to the 
 
 lows: "All property in the state, assessment of a railroad corporation 
 
 not exempt under the laws of the franchise: " The petitioner derives 
 
 United States, shall be taxed in pro- its franchise, 'its »ight to exist,' 
 
 portion to its value, to be ascer- solely from and. under the laws of 
 
 tained as provided by law. The the state. When it ceases to exer- 
 
 word ' property,' as used in this cise all the privileges thus derived 
 
 article and section, is hereby de- (assuming that it may, of its own 
 
 clared to include moneys, credits, option, abandon them, and, at the 
 
 bonds, stocks, dues, franchises, and same time, relieve itself of the duties 
 
 all other matters and things real, and obligations necessarily joined 
 
 jDersonal and mixed, capable of pri- with them), it may, perhaps, be in a 
 
 vate ownership," etc. (Sec. 1, art. position to contest the right of the 
 
 13, Con. Cal.) Under sec. .3608 P. C. state to tax the moneyed value of 
 
 Cal., Justice Savi'YBR held an >as- the franchise as actually employed, 
 
 sessment of shares of the stock of a and in connection with the property 
 
 corporation to the private owner and acquired and held by means of the 
 
 holder to be a double taxation, and powers conferred with the franchise, 
 
 void. City and County of San Fi-an- The franchise, at least in such con- 
 
 cisco V. Mackey, 3 West Coast K. nection, is property subject to taxar 
 
 697 (Cal.) tion." 
 
 2 In the case of the C. P. E. R. Co. 
 
240 
 
 THE LAW OF ASSESSMENTS. 
 
 exempted as to the other. The reason is, that each state 
 has the right to prescribe tlie mode of taxation of all taxa- 
 able property within its jurisdictional limits, irrespective of 
 the fact whether the same property has, in any form, been 
 taxed in any other sovereignty for the same year.^ A mode 
 of assessment exclusive of other taxation in tlie absence of 
 constitutional inhibition, mny be prescribed by statute ; * 
 
 'The case of Dyer v. Osborne (11 
 II. I. 321), 23 Amei-. R. 461, is illus- 
 trative of the text. The plaintiff, a 
 resident of Rhode Island, sued to 
 recover back taxes wliicli lie claimed 
 were improperly assessed against 
 him on shares of manufacturing 
 corporations organized under the 
 laws of Massachusetts. It appeared 
 that under the laws of Massachu- 
 setts all the shares of corporations 
 were taxable to the shareholders at 
 the location of the corporation, at 
 their marliet value, and that these 
 sauie shares had been so taxed in 
 Massachusetts for the same year. 
 The laws of Rhode Island made "all 
 stocks or shares in any bank or bank- 
 ing association, in any turnpike, 
 bridge, or other corporation, within 
 or without the state, except such as 
 are exempted from taxation by the 
 laws of the sfeite — taxable." The 
 court decided tlie case adversely to 
 the plaintiff in an opinion of great re- 
 search and learning. The following 
 extract shows the views of the court: 
 " The language is plain. It clearly 
 makes the shares of any corpora- 
 tion, wliether manufacturing or 
 other, whether without or witliin 
 the state, liable to taxation if tlie 
 owner is an inhabitant of the state, 
 unless such shares are exempted from 
 taxation by the laws of the state. 
 At the time the tax now sued for 
 was assessed, shares in tlie stock of 
 a manufacturing corporation of an- 
 other state were not exempted from 
 taxation by the laws of this state. 
 Upon what ground, then, can we 
 
 hold that the assessment of the tax 
 was illegal and void?" . . . " The 
 plea avers that the defendant has 
 already paid a tax assessed upon 
 the shares in Massachusetts. It is 
 doubtless a hardship for him to pay 
 taxes on the same property in two 
 states. But the Massachusetts tax, 
 even if valid, could not divest this 
 state of its jurisdiction. The laws 
 of Rhode Island are paramount in 
 Rhode Island, and all tlie inhabi- 
 tants of the state are subject to 
 them, without regard to the laws of 
 any other state." (See cases cited.) 
 *Sec. 3608 P. C. (Cal.) was enacted 
 for the first time, March 7th, 1881. 
 The constitutional jDrovision became 
 the law of California January 1st, 
 1880. Previous to the enactment of 
 sec. 3608, the provision of California 
 for taxing corporations was as ex- 
 pressed in sec. 3640 P. C. (Cal.), 
 enacted March 22d, 1880, and read- 
 ing in these words: " Each person, 
 firm, or corporation owning or hav- 
 ing in his or its possession any of the 
 shares of the capital stock of any 
 corporation, association or joint 
 stock company, shall be assessed 
 therefor. If the corporation, asso- 
 ciation, or joint stock company has 
 its principal place of business in this 
 state, the assessable value of each 
 share of its stock shall be ascer- 
 tained by taking from the market 
 value of its entire capital stock the 
 value of all property assessed to it, 
 and dividing the remainder by the 
 entire number of shares into which 
 its capital stock is divided. The 
 
VALUATION'. 
 
 241 
 
 and this is frequently done in special acts of incorporation. 
 When a specific tax in lieu of all taxation is provided in 
 the act of incorporation, or in a general act under which a 
 
 owner or holder of capital stock in 
 corporations, associations, and joint 
 stock companies, whose principal 
 place of business is not within the 
 state, must be individually assessed 
 for such stock. Shareholders, in the 
 statement required by section 3629 
 of this Code, shall specify the num- 
 ber of shares of stock held by them, 
 and the name of the corporation. 
 The owner of shares of stock, to be 
 entitled to the deduction provided 
 for in this section, must produce to 
 the assessor a certificate of the as- 
 sessment of the property of the cor- 
 poration, association, or joint stock 
 company." Under the provisions of 
 this section of the Code, an assess- 
 ment was made of the shares of the 
 capital stock of the San Jose Gas 
 Company. In making the assess- 
 ment, the assessor combined the ag- 
 gregate market value of the shares 
 of the capital stock of the corpora- 
 tion held and owned by the share- 
 holders at $240,000, and from that 
 aggregate deducted the combined 
 aggregate value of all the taxable 
 property of the corporation, includ- 
 ing real estate and improvements 
 thereon, personal property, money 
 and street mains, and found the re- 
 sult $130,000, and assessed the fran- 
 chise at that sum. The corporation, 
 maintaining that the mains, valued 
 at $40,860, were worth only $15,000, 
 and the franchise, valued at 8130,000, 
 was worth only $100, and tendered 
 payment of the tax in accordance 
 with such valuation, which being 
 refused, it procured a temporary in- 
 junction against the collection of a 
 greater amount. On motion the in- 
 junction was dissolved, and on ap- 
 peal Justice Mykick, speaking for 
 the full bench in banc, used the fol- 
 16 
 
 lowing language as to the mode of 
 valuation of the mains : " The duty 
 of making the valuation was cast 
 upon the assessor. The method of 
 arriving at the valuation, the process 
 by which his mind reached the con^ 
 elusion (in case where, as here, it is 
 not pretended that he acted fraudu- 
 lently and dishonestly), is matter 
 committed to liis determination. In 
 fixing a valuation upon the mains, 
 it was entirely competent for him to 
 take into consideration the cost, as 
 estimated by himself, of digging the 
 trenches, laying the pipes, and mak- 
 ing the connections. It was compe- 
 tent for him to determine that mains 
 laid in the ground were of more value, 
 as so laid, for the purposes for which 
 they were laid, than would be pipes 
 in the warehouse of the dealer, or 
 than would be the crude iron at the 
 foundry. If he erred in his judg- 
 ment, the remedy was by applica- 
 tion to the Board of Equalization, 
 and the courts will not revise the 
 judgments of these otficers upon 
 such questions.'' Upon the ques- 
 tions raised as to the valuation of 
 the franchise, its character as as- 
 sessable property not being raised, 
 the learned justice continued : " The 
 appellant argues that under sec. 19, 
 art. XI. of the Constitution, a fran- 
 chise for using public streets and lay- 
 ing pipes for supplying a city with 
 gas and water, has no value. A suf- 
 ficient answer to that is, the appel- 
 lant admits (which it could not deny) 
 that the right of laying down and 
 maintaining pipes in the streets of a 
 city, by means of which gas and 
 water is to be conveyed, is a fran- 
 chise; and by sec. 1, art. XIII. of the 
 Constitution, franchises are declared 
 to be property for the purposes of 
 
242 
 
 THE LAW OF ASSESSMENTS. 
 
 corporation is organized, such provision takes on the cliar- 
 acter of a contract between the state and the corporation, 
 and no additional or other tax of any Isind can be imposed.® 
 Sec. 133. Valuation of Capital Stock and Shares of Capital 
 Stock and Property and Franchise — Continued as to Franchise 
 and Double Taxation.— There has been some discussion as 
 to the right to assess the franchise of a corporation in 
 
 taxation. The method of assess- 
 ment, and by whom, was to he ami 
 was provided for by law. Therefore 
 it does not rest with llie plaintiff, or 
 with the courts, to determine lliat 
 its francliiso liail no value. In a pe- 
 cuniary sense, the value of franchises 
 may be as various as the objects for 
 whicli tliey exist, and the metliods 
 by wliich tliey are employed, and may 
 change with every moment of time; 
 but that franchises are property, and 
 are to be taxed in some metliod in 
 proportion to value, is a part of tlie 
 paramount law of tliis state." San 
 Jose Gas Co. v. January, .57Cal. 616. 
 That portion of tlie Constitution 
 referred to reads as follows: "In 
 any city wliere there are no public 
 works owned and controlled by the 
 municipality, for the supplying the 
 same with water or artificial light, 
 any individual or any company duly 
 incorporated for such pui'pose, under 
 and by authority of the laws of this 
 state, shall, under the direction of 
 the superintendent of streets, or 
 other officer in control thereof, and 
 under such general regulations as 
 the mimieipality may prescribe for 
 damages and indemnity for damages, 
 have the privilege of using the pub- 
 lic streets and thoroughfares thereof, 
 and of laying down pipes and con- 
 duits tlierein, and connections there- 
 with, so far as may be necessary for 
 introducing into and supplying such 
 city and its inhabitants either with 
 gas light or other illuminating light, 
 , or with fresh water for domestic and 
 all other purposes, upon the condi- 
 
 tion that the municipal government 
 shall have the right to regulate the 
 charges thereof." 
 
 * The Act providing for National 
 Banks permits the shares of such 
 banks to be taxed by the states 
 wljerein they are located; with the 
 restiiction that they are not to be 
 taxed at any higher rate than the 
 shares of other state banks, and 
 moneyed capital in the hands of cor- 
 porations or individuals. In Ken- 
 tucky the law required bank stocks 
 to pay into the state treasury a tax 
 equal to fifty cents to each share, 
 equal to .$100 par value, and this tax 
 was declared to be in lieu of all 
 other taxes. Upon payment of this 
 tax the bank was discharged and 
 exempted from the payment of every 
 other tax, and the individual share 
 owners were not to be taxed for their 
 shares. Under the National Bank 
 law this would be the extent of the 
 taxation of the shares of national 
 bank stock in that state: but an at- 
 tempt was there made to tax na- 
 tional banks for their surplus fund, 
 upon the theory that this was un- 
 divided profits of the bank and 
 outside of the fifty cent taxation 
 authorized to equal state taxation of 
 ordinary shares of state banks. A 
 tax was claimed against the City of 
 (;ovington National Bank of $10,000, 
 and some hundred dollars made up 
 of an assessment for the years 1881, 
 1882 and 1883 of a surplus carried 
 by the bank exceeding one hundred 
 thousand dollars each year; also 
 some real estate purchased by the 
 
VALUATION. 
 
 248 
 
 addition to the assessment of its stock, or in addition 
 to its property at its actual value, when that method 
 of assessment has been adopted. If the stock of a cor- 
 poration he assessed at its actual value, it would seem 
 necessarily to follow that all the property of the corpora- 
 tion, " capable of private ownership," was included in the 
 valuation.^ But where the assessment of the franchise of a 
 
 bank at judicial sales on judgments 
 recovered upon loans made by the 
 bank in its regular course of busi- 
 ness, and again sold by the bank, 
 but not until after the time when 
 property became liable to taxation. 
 The question was, whether any taxa- 
 tion of any of the property of the 
 banlc, except its shares df stoolc 
 owned by its shareholders, was legal. 
 T lie .view taken by the court was, 
 tliat no property of a corporation 
 created by the national government 
 could be taxed, except so far as pei- 
 mitted, and that Congress, in provid- 
 ing for the organization of national 
 banks, permitted no other taxation of 
 their stock or property than their 
 shares, and restricted that taxation 
 to the same and no higher rate than 
 the tax provided for, in the states 
 where located, of shares of state 
 banks and moneyed capital in the 
 hands of corporations and individu- 
 als. Whilst this surplus fund would 
 have the effect to enhance the value 
 of the bank shares — still, as no pro- 
 vision was made in Kentucky for a 
 higher rate of taxation than fifty 
 cents on $100 par value of stock of 
 state banks — no taxation could l)e 
 imposed by the state upon this sur- 
 plus fund. The case of North Ward 
 Nat. Bank v. Newark, 39 N. J. L. 
 (10 Vrooni) 380, was cited to sustain 
 the tax — but it appeared that in 
 New Jersey the law providing for 
 the taxation of shares of banks 
 required that the shares be assessed 
 at their actual value. That being 
 tlie law, it was no objection that the 
 
 surplus fund of the bank was con- 
 sidered in determining the actual 
 value of the bank shares. Coving- 
 ton City Nat. Bank v. City of Cov- 
 ington, 21 Fed. Rep. 485 (Ky.). 
 
 'This is evidently the view 
 taken by the learned judge (Ross) 
 who delivered the opinion adopted 
 in the decision of the appeal in Burk 
 V. Badlam, (57 Cal. 599). The case 
 was a petition for a writ of mandate 
 to compel the assessor to assess to 
 the holdei's of certificates of shares 
 of stock in corporations such shares, 
 and to savings banks the amounts of 
 their deposits, assuming that section 
 3008 P. C. Cal. was unconstitutional. 
 A demurrer to the petition was in- 
 terposed and sustained, the question 
 being upon the sufficiency of the 
 petition. The court could have 
 rested its decision sustaining the 
 demurrer, upon the ground that the 
 time for completing the assessment 
 roll had not expired when the peti- 
 tion was filed, and, using the lan- 
 guage of the learned judge, that 
 they " must presume that he has or 
 will perform his duty in this respect 
 in due time," but, whether necessary 
 to the decision of the appeal or not, 
 the question of the effect of an as- 
 sessment to the shareholders of their 
 shares of stock, after the assessment 
 has been made of the entire prop- 
 erty of the corporation imder the 
 requirements of section 3608 of the 
 Political Code, was discussed and 
 expressly ruled on. The learned 
 judge stated the proposition or claim 
 of the petitioner to be this: "That 
 
2U 
 
 THE LAW OF ASSESSMENTS. 
 
 corporation is specially provided for, either by statute or 
 as part of the organic law, and it is also provided that 
 
 the assessor mxist assess to the re- 
 spective corporations, all of their 
 property of every kind, including 
 their franchise, and to the individual 
 stockholders thereof the respective 
 shares of stock held by them; and 
 must assess to the respective savings 
 banks all of their property, includ- 
 ing all money deposited with them 
 by depositors, ami also to individual 
 depositors, the respective sums of 
 money so deposited by them. If 
 this would in effect be assessing the 
 same property twice for the same 
 tax, it cannot be done. The consti- 
 tution of the state does not require 
 or authorize double taxation. . . . 
 Now what is the stock of a corpora- 
 tion but its property, consisting of 
 its franchise and such other property 
 as the corporation may own ? Of 
 what else does its stock consist ? If 
 all tills is taken away, what remains ? 
 Obviously nothing. When therefore 
 all the property of the corporation 
 is assessed — its franchise and all of 
 its other property of every character 
 — then all of the stock of the corpor- 
 ation is assessed and the mandate of 
 the constitution is complied with. 
 This property is held by the corpor- 
 ation in trust for the stockholders, 
 who are the beneficial owners of it 
 in certain proportions called shares, 
 and which are usually evidenced by 
 certificates of stock. Tlie share of 
 each stockholder is undoubtedly 
 property, but it is an interest in the 
 very property held by the corpora- 
 tion. It is his right to a propor- 
 tionate share of the dividends and 
 other property of the corporation — 
 nothing more. ... To assess all the 
 corporate property of the corpora- 
 tion, and also to assess to each of 
 the stockholders the number of 
 shares held by him, would, it is 
 
 manifest, be assessing the same 
 property twice, once in the aggregate 
 to the corporation, the trustee of all 
 the stockholders, and again sepa- 
 rately to the individual stockholders, 
 in proportion to the number of 
 shares held by each. As well might 
 it be contended that the property of 
 a partnership should be assessed to 
 the firm, and in addition, that the 
 interest of each partner in the firm 
 property should be assessed to him 
 individually." All the judges con- 
 curred in the decision. Justice 
 McKlNSXKY, after noticing the fact 
 that "stocks" and "francliises " 
 are, by the constitution, incluiled in 
 the word "property," remarked: 
 " But the constitution does not re- 
 quire that stocks or franchises shall 
 be twice taxed. '\Vhen the aggre- 
 gate value of all the shares of stock 
 is taxed to the corporation, the real 
 and personal property and the fran- 
 chise is ordinarily included in the 
 tax; certainly when the stock, fran- 
 chise and other property are taxed 
 to the corporation every thing re- 
 quired by the constitution to be 
 taxed is taxed, and this whether one 
 of these subjects of taxation in- 
 cludes the others or not. The stat- 
 ute" (§3608 P. 0. Cal.) "provides 
 that shares of stock shall not be 
 assessed to the holders. Why should 
 they be if the " property " which is 
 assessed to the corporation, includes 
 the anticipated profits from the en- 
 joyment of the franchise, and all 
 other elements of value which go to 
 give value to the shares of stock ? 
 The suggestion of petitioner is that 
 the statute is unconstitutional, be- 
 cause it does not provide for taxing 
 the shares of stock to the corpora- 
 tion and to the individual holders. 
 But I find no such mandate in the 
 
VALUATION. 
 
 245 
 
 " stoclis " and " everything capable of private ownership " 
 shall be taxed, it is within the province' of the legislature 
 
 constitution." Ch. Justice Mob- 
 HisoN concurred in tlie opinion of 
 Justice Koss in relation to the posi- 
 tion taken by him in respect to the 
 taxation of savings banks, holding 
 that "money deposited in savings 
 banks should be assessed but once, 
 either to the bank -or to the deposi- 
 tor, and not to both." Burk v. 
 Badlam, 57 Cal. 599. In the case of 
 San Jose v. January, (57 Cal. 614,) 
 ante, § 1.32, n. 3, the stock of the 
 corporation was not assessed, but the 
 franchise was valued for assessment 
 iis a separate item of property, and 
 the court refused to review the val- 
 uation placed upon the franchise by 
 the assessor. The value of the fran- 
 chise was ascertained in the follow- 
 ing manner: 1st, ascertaining the 
 market value of the capital stock or 
 shares of the corporation ; 2d, ascer- 
 taining the value of the property of 
 the corporation and deducting the 
 value of the property from the cash 
 or market value of the stock, the 
 difference, being a balance in favor 
 of the stock, was taken to be the 
 value of the franchise. 
 
 Franchises defined as taxable 
 property, &c. 
 
 The character of franchises as 
 taxable property, was further adju- 
 dicated in the Supreme Court of 
 California in the case of Spring 
 Valley W. AV. v. Schottler, (62 Cal. 
 69). The opinion by Justice Thokn- 
 TON is an exhaustive review of the 
 taxable character of franchises and 
 other questions growing out of the 
 action of the Board of Equalization 
 in the particular case. Defining a 
 franchise in California, the learned 
 judge said: "In this state, the 
 charter is the statute or Statutes 
 granting and defining the powers of 
 the corporation, under which it is 
 
 constituted and, exists, together with 
 the instruments required to be exe- 
 cuted by the provisions of such stat- 
 ute or statutes. These are some- 
 times called the constating instru- 
 ments. (Field, on Corp., §34, n. 3.) 
 Such franchises are legal estates, not 
 mere naked powers, and are powers 
 coupled with an interest, which vest 
 in the coi'poration by virtue of its 
 charter or constating instruments;" 
 (Id. p. 110) citing: Society for Sav- 
 ings 0. Coite, 6 Wall. 606; Provident 
 Institution v. Jlassachusetts, Id. 622; 
 Hamilton County v. Massachusetts, 
 Id. 638; Porter v. E. R. I. & St. L. 
 K. R. Co., 76 111. 561; Vezie Bank 
 I). Fenno, 8 Wall. 547; West River 
 Bridge Co. v. Dix, 6 How. 529; Wil- 
 mington R. R. Co. -0. Reid, 13 Wall. 
 264; Monroe Savings Bank v. The 
 City of Rochester, 37 N. Y. 367. 
 
 Franchises can be taxed according 
 to their value. 
 
 The learned judge continuing, re- 
 marked: "That such franchises 
 can be taxed according to the valua- 
 tion arrived at through an assess- 
 ment is recognized in the case of 
 The Freight Tax, 15 Wall. 282, and 
 in the case of 2'he State Tax on 
 Railway Gross Receipts, Id. 296. In 
 the case of the State Railroad Tax 
 cases, above cited from 92 tl. S. Re- 
 ports, a tax on the assessed value of 
 franchise and capital stock by the 
 State of Illinois was sustained, ap- 
 proving the decision to that effect in 
 Porter v. R. R. I. & St. L. E. R. Co., 
 above cited from 76 Illinois. . . . 
 In this state the constitution liaving 
 declared that franchises are prop- 
 perty, ... it would seem to follow 
 that the tax must be according to 
 the valuation made by the officer 
 appointed for that purpose. If the 
 state can impose a tax on the fran- 
 
246 THE LA-^ OF ASSESSMENTS. ^ 
 
 to provide a rule for taxing the property of corporations by 
 excluding " stocks," or the shares of the capital stock, and 
 including the property and the franchise only.'^ When the 
 property, the tangible property, of a corporation is taxed at 
 its actual value, and its capital stock is also taxed at its 
 market value, without any deduction on account of the 
 value of the tangible property of the corporation, it is a 
 plain proposition that this would be double taxation.^ The 
 shareholders are practically in the relation to the corpora- 
 tion that part owners of personal property', and tenants in 
 common of real property, are to the property constituting 
 the common personal or real propertj'. And an act of the 
 legislature, providing for taxing all the real and personal 
 property of a corporation,"' of every kind, including its fran- 
 chise, and exempting its sliares from taxation, is, in effect, 
 nothing more than providing against double taxation. But 
 where franchises are made taxable as property according to 
 their value, it is not double taxation to tax all the tangible 
 property of the corporation, and, in addition thereto, its 
 franchise.^ It is not always an easy matter to fix the value 
 
 ohise of a corporation in the nature (and which was the subject of the 
 
 of an excise or duty, it does not ex- litigation in tliis case,) tlie valuation 
 
 elude the taxation by a valuation for the assessment was ascertained 
 
 made by an assessor. That such a in the same manner — the value of 
 
 franchise as that held by the appel- the property of the corporation was 
 
 lant was taxable in this state, we deducted from the market value of 
 
 think has been held by this court in the stock or shares of the capital 
 
 two cases: Burke i;. Badlam, 57 stock of the corporation, and the 
 
 Cal. 594, and San Jose Gas Co. v. balance or value of the capital 
 
 January, Id. 614." After noticing stock in excess of the value of the 
 
 the facts involved in these two cases property of the corporation was 
 
 and the rulings in each, and the taken as the value of tlie franchise, 
 
 further fact that they were made The court concluded that the board 
 
 while section 3608 of the Political of equalization had jurisdiction over 
 
 (,'ode was in force, the opinion pro- tlie subject matter, and that the as- 
 
 ceeds to state that under section sessment could not be reviewed by 
 
 .^640, which was repealed by section the courts. Spring Valley W. W. 
 
 J608, in an assessment of the shares v. Schottler, 62 Cal. 118, 119. 
 
 of the stock at their market value, ^San Jose Gas Co. v. January, 
 
 the assessment would have included 57 Cal. 614; Burk v. Badlam, Id. 
 
 the value of the franchise as ascer- 601 ; Spring Valley "W. W. •». Schot- 
 
 tained in the assessment of the San tier, 62 Cal. 114. Porter v. K. R. I. 
 
 Jose Gas Co. In the assessment of & St. L. R. R. Co.. 76 111. 591. 
 the Spring Valley Water Works, 
 
VALTTATIOX. 
 
 217 
 
 of a franchise, as these differ with the rights and privi- 
 leges they secure ; but the same difficulty attends the fix- 
 ing, with entire accuracj', the value of all tangible property. 
 The value of a corporate franchise ma}"- be ascertained by 
 the same rules of reasoning adopted in estimating tlie 
 values of other intangible personal property.^ Where tlie 
 
 'A FrancMse is Property. 
 
 Justice Davis, speaking of fran- 
 chises as taxable property, used the 
 following language: "Nothing is 
 better settled than that the fran- 
 chise of a private corporation — wliich 
 is the privilege of running it and 
 taking fare and freight — is pi'operty, 
 and of the-most valuable kind, as it 
 cannot be taken for public use even 
 without compensation. It is true, 
 it is not the same sort of property as 
 the rolling stock, roadbed and depot 
 grounds, but it is equally with them 
 covered by the general term, 'the 
 property of the company,' and 
 therefore equally within the protec- 
 tion of the charter." And he held 
 that the legislature was not inhib- 
 ited from taxing it. Wilmington 
 Kailroad v. Eeid, Sheriff, 13 Wall. 
 268. The opposite view was taken 
 by the Supreme Court of Ohio, un- 
 der sec. .3, art. 12 of the constitution 
 of that state, which is in these 
 words: "The General Assembly 
 shall provide by law, for taxing the 
 notes and bills, discounted or pur- 
 chased, moneys loaned, and all other 
 property, effects or dues, of every 
 description, without deduction, of 
 all banks now existing, now or here- 
 after created, and of all bankers; so 
 that all property employed in bank- 
 ing shall always bear a burden of 
 taxation equal to that imposed on 
 llie property of individuals." In 
 construing this section of the consti- 
 tution, especially the words "all 
 other property, effects or dues of 
 every description," the court held 
 
 that a franchise of a corporation 
 was not property, and was not the 
 subject of taxation to be valued in 
 an assessment of a corporation's 
 property or effects. The following 
 reasoning was used by the court: 
 "Does a corporate franchise, in 
 sober reality, possess the essential 
 qualities of property ? It is said 
 that the corporate function of a 
 bank, conferring a peculiar legal 
 capacity, and the high franchise of 
 making and circvdating paper 
 money, is valuable — indeed a thing 
 of great value. But valve is not 
 the distinguishing attribute of prop- 
 erty. The' right of suffrage is 
 esteemed valuable; a public office, 
 with its emoluments is valuable; a 
 license to keep a tavern, as formerly 
 granted in this state, or a license to 
 carry on any business, which is pro- 
 hibited without a special grant from 
 the government, may be valuable; 
 and a right to any of these things 
 may be asserted and maintained in 
 a court of justice, yet neither of 
 them possess the essential qualities 
 whicli constitute property. . . . 
 Those things which constitttte the 
 subject matter of private property, 
 are such as the owner may exercise 
 exclusive dominion over, in the use, 
 enjoyment, and disposal of them, 
 without any control or diminution, 
 save only by the laws of the land. 
 It is a fundamental prhiciple that 
 'property,' considered as an exclu- 
 sive right to things, contains not 
 only a right to use things, but a 
 right to dispose of them either by 
 
2-48 
 
 THE LAW OF ASSESSMENTS. 
 
 capital stock is assessed to the corpoi-ation at its cash 
 value, and the assessment covers all its property, including 
 
 exchanging them for others, or by 
 giving them away to another person, 
 without any valuable consideration 
 in return, or even of throwing them 
 away, whicli is usually called relin- 
 quishing them. (Rutherford's In- 
 stitutes, 20 Puffendorf, ch. 9, b. 7.) 
 ... A corporate franchise, tliere- 
 fore, being a mere privilege or grant 
 of authority by the government, is 
 not property of any description, 
 and consequently not subject to tax- 
 ation under the above provision of 
 the constitution." Exchange Bank 
 of Columbus V. Hines, 3 Ohio St. 5. 
 In Massachusetts the rule for assess- 
 ing the value of the shares of the 
 capital stock of coiporations is stated 
 in the following language : ' ' The 
 market value of all the capital stock 
 of each corporation, after deducting 
 the real estate and machinery, if 
 any belonging to it, is the prescribed 
 basis on which the calculation is to 
 be made, and by whicli the excess 
 is to be ascertained on wiiich the as- 
 sessment is laid." Commonwealth 
 V. Hamilton M. Co., 12 Allen, 302. 
 
 Market value of shares ; includes 
 value affranchise. 
 
 Sales of shares of the stock of a 
 corporation do not furnish the only 
 test of their value, " the price which 
 an undivided seven-hundredth part 
 of any estate would command in lihe 
 market, could hardly, in any case, 
 be a test of the value of the estate as 
 a whole." The value of the shares 
 may be ascertained by the examina- 
 tion of the corporation's books, its 
 affairs and property, as any other 
 fact is ascertained. The franchise 
 of a corporation may be an ingredi- 
 ent in tlie valuation of its shares. 
 Inhabitants of Chicopee v. Hampden, 
 16 Gray 39; Commonwealth v. Gary 
 Im. Co., 98 Mass. 22, 23. The op- 
 
 posite view is presented in the case 
 of City of Memphis v. Ensly, 6 
 Baxt. 553; (s. c. 32 Amer. R. 532.) 
 The facts were that the Memphis 
 Gas Light Company, a corporation, 
 had all its capital invested in prop- 
 erty used in the manufacturing of 
 gas. This jiroperty was assessed 
 and taxed as other taxable property, 
 and the taxes paid. The corporation 
 had issued shares, representing its 
 capital stock, and these were owned 
 and assessed at their market value 
 whicli was fifty cents on. the ddllar 
 of par value, to the individual share- 
 holders, without any deduction- 
 tlierefrom, of the value of the prop- 
 erty • of the corporation. It was 
 claimed by the shareholders that 
 they ought not to be assessed for the 
 market value of these shares, be- 
 cause the property which gave to 
 them the value they bore in the mar- 
 ket was already taxed, and that to 
 tax the shares would be double taxa- 
 tion. The court concedes that this 
 view had been taken by the courts 
 of other states, but held that in 
 Tennessee the Supreme Court had 
 ruled the other way in the case of 
 Union Bank d. State (9 Yerg.) 490, 
 although in that case the court held 
 the shares not taxable by reason of 
 an exemption in the bank charter. 
 Tlie position is taken that the shares 
 owned by the shareholders are prop- 
 erty independent and separate from 
 the capital stock or property of the 
 corporation, and the subject of taxa- 
 tion at its market valiie. Corpora- 
 tion shares are defined to be choses 
 in action, "an intangible thing evi- 
 denced by writing." In discussing 
 the question, " is the tax on the 
 capital stock" {i. e. tlie i^roperty of 
 the corporation) "a tax on tlie 
 shares ? " the court proceeds to say: 
 
VALUATION. 
 
 249 
 
 its franchise, to tax the shares or stock held by the stock- 
 holder would be double taxation. 
 
 Sec. 134. Methods of valuing Corporations for taxable Pur- 
 poses. — Different methods are applied in different states for 
 the purpose of taxing corporations. In some of the states 
 
 "It must be admitterl tliat this tax 
 would lessen the amount of dividend 
 on the shares to the extent it was 
 paid, and the value of the share 
 would, in a certain proportion, be 
 diminished: but then the share is 
 not taxed on its face value as repre- 
 senting or standing in tlie place of 
 the capital stock paid in for it, but 
 only at its market value, thus re- 
 duced by the fact that the income 
 which it yields has been rendered 
 less by the tax imposed on the prop- 
 erty from which it is derived. If the 
 stock is wortli par, then, indeed, it 
 would pay, if the rate of the tax 
 was the same on the capital stock 
 per share as that on the shares, the 
 same sum in tlie way of taxes; if, 
 however, the shares, as in some 
 cases, were worth double the amount 
 of dollars called for on their face, 
 then it would pay this much more 
 in proportion to its value ; but this 
 value would be made up of income, 
 and the increased amount paid would 
 be on the increased income paid by 
 the owner. But, if again, the stock, 
 say was wortli in tlie market, only 
 ten cents on the dollar, then tlie tax 
 on the share would not be the same 
 as that paid on the capital stock, if 
 taxed on the amount paid in." It 
 will be seen that the argument pro- 
 ceeds upon the theory that the money 
 or property exchanged for the shares 
 constitute the capital stock of the 
 corporation. It would seem to have 
 been the view of the learned judge, 
 that the shareholder, for the shares 
 he receives, gets back a value equal 
 to that which he parts with, and 
 should be taxed accordingly. But 
 
 this does not necessarily follow. 
 Suppose a corporation be organized 
 for the purpose of prospecting for and 
 acquiring mines, consisting of teii 
 shareholders, each having contribu- 
 ted one thousand dollars to make 
 up a capital stock, and each having 
 received a tenth of the shares. Here 
 then is a corporation with a capital 
 stock in money, of ten thousand dol- 
 lars, and ten men who own equally ' 
 its shares. While in this condition 
 the assessor makes his assessment — 
 assesses to the corpoi'ation ten thou- 
 sand dollars in money, because the 
 corporation has that much money on 
 hand. When he comes to these ten 
 shareholders, he proposes to assess 
 them a thousand dollars each as the 
 market value of their shares — be- 
 cause each holds a certificate which 
 declares him to be entitled to one 
 tenth of the property of the corpo- 
 ration in any distribution which 
 may be made of its property, and in 
 that proportion to all its net earn- 
 ings. What material difference exists 
 as to these shareholders, before, and 
 after the formation of the corpora- 
 tion ? Before the act of incorpora- 
 tion each had his thousand dollars 
 in his own possession, and would, if 
 called upon by the assessor, have 
 been assessed for it. After the in- 
 corporation the thousand dollars of 
 each is assessed to their associated 
 or corporate name. The ownership, 
 it is true, is changed in form, and 
 from the individuals to the corpora- 
 tion, but is held in trust for the 
 shareholders, the same parties who 
 formerly held it as the legal owners, 
 and in their own right. Is it not 
 
250 
 
 THE LA"W OP ASSESSMENTS. 
 
 where corporations are created by special acts of the legis- 
 lature, the method and extent of the taxation of the corpo- 
 ration are to be found in their charters — but this is not 
 often the case. In California, various methods have been 
 provided, designed to include, not only the tangible property 
 of the corporation, but the value of the shares of its stock 
 in the hands of the owners or holders thereof. The rule 
 however, adopted after much experimenting, is to assess all 
 the taxable property' of the corporation, in the same man- 
 ner as the property of individuals is assessed and the value 
 of the franchise, to the corporation, and not to assess the 
 shares of its stock.^ This, when done, is held to be a full 
 assessment of all, of value, belonging to a corporation. In 
 Illinois, a different mode has been adopted by the state board 
 of equalization, which is as follows: "First. The market 
 or fair cash value of the shares of capital stock, and the 
 market or fair cash value of the debt (excluding from such 
 debt the indebtedness for current expenses) shall be com- 
 bined or added together: and the aggregate amount so 
 ascertained shall be taken and held to be the fair cash value 
 
 plain in the supposed ease, that if 
 this ten thousand dollars be taxed 
 to the corporation, and one tentli of 
 the amount be also assessed to each 
 of the shareholders, the money 
 would be twice taxed ? .That the 
 assessment roll would show a taxa- 
 tion of twenty thousand dollars 
 where there was only ten ? This is 
 the test of a double taxation. It is 
 conceded that the legislature, where 
 there is no prohibition in the consti- 
 tution, may regulate the manner of 
 the assessment and mode of taxation 
 of corporations ; whether the prop- 
 erty only, or the property and fran- 
 chise only, shall be assessed to the 
 corporation; or whether the stock 
 or shares, after deducting the value 
 of tlie property and franchise, to be 
 taxed to the corporation, shall be 
 assessed to the shareholders for any 
 value which the shares may have 
 over and above such deduction; or 
 
 whether the entire market value of 
 the shares as representing all the 
 property of the corporation, includ- 
 ing its franchise, shall be taxed to 
 the sliareholders or to the corpora- 
 tion — the mode of the taxation may 
 be regulated, but it must be done in 
 a manner that will not necessitate 
 the taxation of the property, or 
 property and franchise of a corpo- 
 ration at its actual value, and also 
 tlie shares, at their full market value, 
 to the shareholders without any de- 
 duction on account of the value of 
 the property taxed to the corpora- 
 tion; otherwise it will be double 
 taxation. (See Salem Iron Factory 
 v. Danvers, 10 Mass. 514; ante, n. 1, 
 §48.) 
 
 iSec. 3608 P. C. Cal.; San Jose 
 Gas Co. ». January, 57 Cal. 614; 
 Burk V. Badlam, Id. 601; Spring 
 Valley W. W. ii. Schottler, 62 Id. 
 114. 
 
VALUATION. 251 
 
 of the capital stock, including the frtinchise respectively, of 
 such companies and associations: Second: From the aggre- 
 gate amount ascertained as aforesaid, there shall be deducted 
 the aggregate amount of the equalized or assessed valuation 
 of all the tangible property, respective!}-, of such compa- 
 nies and associations (such equalized or assessed valuation 
 being taken, in each case, as the same may be determined 
 by the equalization or assessment of property by this board) ; 
 and the amount remaining, in each case, if any, shall 
 be taken and held to be the amount and fair cash value of 
 the capital stock, including the franchise, which this board 
 is required by law to assess, respectively, against companies 
 and associations now or hereafter created under the laws of 
 this state." ^ Of course, the property deducted is taxed as 
 other property. This system of valuation, by which is 
 taxed the property and capital stock, including the fran- 
 chise, adopted by the state of Illinois, does not differ mate- 
 rially from the system adopted in the reported cases in 
 California, onlj' wliere the franchise and property of the cor- 
 poration are assessed. If, to ascertain the value of the fran- 
 chise, the value of the property of the corporation is deducted 
 from the market value of its capital stock or shares, and the 
 assessment be made on the corporation's property and fran- 
 chise, thus ascertained, it is practically an assessment upon 
 the capital stock, franchise and property. The valuation 
 amounts to the same, and the assessment and tax would be 
 
 2 state Railroad Tax Cases, 92 U. pay that debt and its interest dimin- 
 
 S. R. 604. In relation to this naethod islies pro tanto the dividend of the 
 
 of valuation of the property of cor- shareholder and the value of his 
 
 porations for taxation, Justice Mil- share. It is, therefore, obvious 
 
 LEU, delivering the opinion of the that, when you have ascertained 
 
 court, speaking of ascertaining the the current cash value of the whole 
 
 debts of the corporation as one of funded debt, and the current cash 
 
 tlie elements of its value for taxable value of the entire number of shares, 
 
 purposes, said: " These mortgages you have, by the action of those who, 
 
 are, however, liens on the road, and above all others, can best estimate 
 
 taking precedence of the shares of it, ascertained the true value of the 
 
 the stockholder, may or may not road, all its property, all its capital 
 
 extinguish the value of his shares, stock, and its franchises; for these 
 
 They must in any event affect that are all represented by the value of 
 
 value to the exact amount of the ag- its bonded debt, and of the shares of 
 
 gregate debts. Tor all that goes to its capital stock." Id. 605. 
 
252 THE LAAV OP ASSESSMENTS. 
 
 the same. Where solvent debts are assessable for taxation, 
 "re-assurance reserve," and "premiums due and in course of 
 conection," owned by a corporation, are subject to assess- 
 ment. They are "funds and claims " that would be assess- 
 able in the hands of a natural person.' 
 
 Sec. 135. charter and statutory Hequirements in the valua- 
 tion of Corporate stocks, etc. — The terms "actual value" 
 and " cash value," when employed with reference to assess- 
 ment and taxation, mean the same thing.^ When used in 
 reference to stocks or shares of a corporation they mean 
 the business valuation or market price — the amount for 
 which they are bought and sold. " Actual value " is used 
 also in opposition to " par value," the former meaning the 
 market price, and the latter the value per share fixed upon 
 the stock by the corporation.^ 
 
 When a corporation is organized under or by state 
 authority, and it is provided, in its organic act, that it shall 
 not be taxed more than a fixed per centage on its paid-up 
 capital stock, it is not competent for the state or any officer 
 to assess such corporation more than the par value of its 
 paid-up stock, notwithstanding its stock may be worth 
 more in open market.* But where the statute provides that 
 the capital stock shall be assessed to the corporation at its 
 
 8 Republic Life Ins. Co. v. Pollak, of the capital stock of the corpora- 
 
 75 111. 300. tion the sum of $507,500. This 
 
 1 Oswego Starch Factory v. DoUo- mode of assessment of capital stock 
 way, 21 N. T. 458 {ante, § 130). was sustained, and has been repeat- 
 
 2 Under a statute requiring the edly referred to as a precedent. Os- 
 capital stock of a corporation to be wego Starch Factory v. Dolloway, 21 
 assessed at its " actual value," the N. T. 449; Peoples. Commissioners 
 assessors found the value of the real of Taxes, 23 Id. 195; Howland v. 
 estate of the corporation to be worth Edmonds, 24 Id. 345; City of TJtica 
 $160,000. The nominal value of the e. Cliurchill, 33 Id. -238; I'eople v. 
 corporation was $450,000. They de- Ferguson, 38 Id. 92 ; People v. Com- 
 ducted from this the value of the missioners of Taxes, 40 Barb. 346. 
 real estate, leaving $290,000 bal- ^ Lionberger v. Rouse, 9 Wall. 477. 
 ance, on accoimt of the nominal Where there are no constitutional 
 value of the stock of the corpora- restrictions, the legislature has the 
 tion. The assessor valued the stock power to prescribe rules for the as- 
 at 75 per cent, above its par value, sessment and valuation of the prop- 
 and added this percentage to this erty of corporations, wliich may he 
 balance, which lie estimated only on different from the rules and regula- 
 the $290,000, making the assessment tions pertaining on the same subject 
 
VALFATION. 
 
 253 
 
 "actual value," then tlie stock should be valued for assess- 
 ment, and the value ascertained, as any other personal pro- 
 perty when assessed at the real value thereof. When the 
 capital stock of a corporation, or its shares, are required to 
 be assessed at the actual value thereof, the estimate of 
 value should be above or below the nominal or par value, 
 according to its value in business transactions.^ 
 
 to natural persons. A statute of the 
 state of Illinois was in the following 
 language : " The capital stock of all 
 companies and associations now or 
 hereafter created under the laws of 
 this state, shall be so valued by the 
 slate board of equalization as to as- 
 certain and determine respectively 
 the fair cash value of such capital 
 stock, including the franchise, over 
 and above the assessed value of the 
 tangible property of such company 
 f>r association. Said board shall 
 adopt such rules and principles for 
 ascertaining the fair cash value of 
 such capital stock as to it may seem 
 equitable and just; and such rules 
 and principles, when so adopted, if 
 not inconsistent with this act, shall 
 be as binding, and of the same ef- 
 fect, as if contained in this act, 
 subject, however, to such change, 
 alteration or amendment as may be 
 found, from time to time, to be nec- 
 essary by said board ; provided, that 
 in all cases where the tangible prop- 
 erty or capital stock of any company 
 or association is assessed under this 
 act, the shares of capital stock of 
 any such company or association 
 shall not be assessed or taxed in 
 tills state. This clause shall not 
 apply to the capital stock or shares 
 of banks organized under the gen- 
 eral banking laws of this state." 
 Under the provisions of this law, 
 the board of equalization adopted 
 the rules and principles for assess- 
 ing the capital stock of corpora- 
 tions quoted ill the last previous 
 
 section. An examination of these 
 rules and principles sliows that they 
 are based upon the following as- 
 sumptions or theory: "1st. Tliat 
 the value of the capital stock of a 
 corporation is equal to the value of 
 all its property, including its fran- 
 cliise, when it is free from debt; 
 2d. That when the corporation i& 
 indebted, the value of its sliares is 
 reduced proportionally to the amount 
 of its indebtedness; and 3d. That 
 the value of the debt of a corpora- 
 tion is determined by the value of 
 that belonging to the corporation, 
 from which payment of the debt can 
 be enforced ; and that the value of 
 the debt cannot exceed the value of 
 that belonging to the corporation 
 from which payment can be en- 
 forced. To illustrate: If a corpo- 
 ration is free from debt, and the 
 value of all its shares of capital 
 stock is one million dollars, it is 
 assumed that the valuS of its capi- 
 tal stock, including its franchise, is 
 one million dollars. The same cor- 
 poration owning the same property, 
 being indebted one hundred thou- 
 sand dollars, its sliares of capital 
 stock would be worth only the ag- 
 gregate sum of nine hundred thou- 
 sand dollars, and its debt would be 
 worth one hundred tliousand dol- 
 lars. The same corporation, witli 
 the same property, being indebted 
 one million dollars, its shares of cap- 
 ital stock would be valueless, and its 
 debt would be wortli one million dol- 
 lars, but if the debt were two mil- 
 
25-1 THE LAW OF ASSESSMENTS. 
 
 Sec. 136. Property to be valued at cash value — to be the 
 estimate of the Assessor. — The general rule for the valuation 
 of property for taxation is, that it be assessed " at its full 
 cash value." ^ The "cash value" required in an assess- 
 ment has been defined to mean "the amount at which the 
 property would be appraised if taken in payment of a just 
 debt from a solvent debtor.''^ Another rule is, "the amount 
 which could be realized by a sale of the property." 2* This 
 is, perhaps, only another mode of expressing the same rule, 
 that propertj' is to be estimated at its actual value. It is 
 the duty, however, of the assessor to exercise his best judg- 
 ment in his estimates of the value of the property -assessed 
 by him. Where the law requires the tax-payer to furnish 
 a sworn statement, including his own estimate of the value 
 of his property, and provides as a penalty that on failure to 
 do so, the assessor shall assess the property from the best 
 information he can obtain, and that the assessment thus 
 made shall be conclusive and final, and that no correction 
 or change of such assessment shall be made by the board 
 of equalization, and the assessor, after such failure, makes 
 an assessment, he cannot, arbitrarily, put an excessive 
 value on the property. Where an assessment was made 
 
 lion dollars, the value of the entire was of no value, the company was 
 debt would be only one million dol- unable to pay interest on Its bonds, 
 lars. In the supposed cases, theval- and its propei-ty was in the hands of 
 nation of the capital stock of the a receiver, and yet the company was 
 corporation, in each case, would be assessed $2,600,000 as the value of 
 one million Hollars, for taxable pur- its real and personal property, on the 
 poses, for which it would seem in- theory that this property, Mice that 
 (•qnitable to assess the corporation of individuals and corporations, 
 owing a sum equal to the value of ought to pay its share of the pub- 
 its shares; yet to assess its capital lie burdens; and the assessment was 
 stock less than its full value on ac- sustained. 
 
 count of the corporation indebted- ^ Polit. Code Cal. § ,3627; People 
 
 ness, would be to allow a corporation ex. rel. v. Barker, 48 K. Y. 74. An 
 
 to deduct its indebtedness from the assessment made on a basis of one 
 
 value of its property, and to assess third of the value of the property, 
 
 only the balance — a privilege not al- is illegal, and a tax deed, deraigned 
 
 lowed to individuals under most, if under such an assessment, is invalid, 
 
 not all, systems of taxation. These Tierney v. Union Lumbering Co. 2 
 
 views are ably presented in the State N. W. Rep. 289 (Wis.) 
 liailroad Tax Cases already referred -P. (;. Cal. § .3617. See n. ,5, § 130. 
 to. (n. 2, §1.34.) In that case, "" State c. Moore, 12 Cal. 71. 
 the capital stock of the company 
 
VALUATION". 
 
 255 
 
 against a railroad corporation, which failed to furnish a 
 statement, valuing the company's road at fifteen thousand 
 dollars per mile — whereas it was alleged that six thousand 
 dollars per mile was the fair value thereof — and it was also 
 alleged that the assessor made the valuation at fifteen 
 thousand dollars per mile, "contrary to his official judg- 
 ment," it was held, these facts being admitted, that the 
 collection of the tax at a higher valuation than six thousand 
 dollars per mile ought to be enjoined.^ In fixing a value 
 on property for taxation the assessor must bring his own 
 judgment to bear upon the subject matter of valuation, 
 just as he would, in the ordinary business transactions of 
 life, in the purchase and sale of the same property or of 
 similar character and value,* and where value is to be fixed 
 upon view of the property, he cannot fix values according 
 to locality, irrespective of the actual value.^ It is not 
 
 3 State V. Central Pacific T„. Co. 7 
 Nev. 101. 
 
 * On this point, where real estate 
 had been assessed, whicli was claimed 
 under a Mexican grant, but for which 
 no patent liad been acquired, the 
 court held in the following lan- 
 guage: "But the same elements 
 exist for assessing its value for pur- 
 poses of taxation as for purposes of 
 business transactions, or sales under 
 execution; and this is all that can 
 be said of any specific piece of prop- 
 erty." People B. Crockett, 37 Cal. 
 156. 
 
 Income. The income which the 
 property yields is not the criterion 
 of valuation: it is the "true, full, 
 fair value." State v. Collector of 
 Jersey City, 4 Zabriskie R. 118. 
 
 ^Valuation according to fixed rules. 
 In a suit to restrain the collection 
 of a tax, it was charged that certain 
 rules were adopted for assessing land 
 according to location as follows: 
 "First. Pine, on first class driving 
 streams assessed at $2 per M. wltliin 
 the limits of two miles hauling. 
 Second. Pine, on such streams of 
 
 more than two miles hauling, at 
 $]..50 per M. Third. Pine, on sec- 
 ond class driving streams, as Moose 
 Ear and other streams mentioned, at 
 $1.50 per M. within two miles, and 
 $1 per M. beyond. Fourth. &c., 
 <Ec." It was charged that these 
 rules were adopted to favor a cer- 
 tain firm, owners of large quantities 
 of pine lands in the county. This 
 was denied in the answer, and it was 
 averred, " that the said rules were 
 proposed and adopted for the gov- . 
 ernment of the assessment of 187o, 
 for the reason that under them it 
 was practicable, and practicable only 
 under them to secure an assessment, 
 fair and equitable, based upon the 
 actual value of the taxable prop- 
 erty." Tlie statute directed that, 
 " Real property shall be valued by 
 the assessor from actual view, at the 
 full value whicli could ordinarily be 
 obtained therefor at private sale, and 
 which the assessor shall believe the 
 owner, if he desires to sell, would 
 accept on full payment. In deter- 
 mining the value, the assessors shall 
 consider as to each piece its advan- 
 
256 
 
 THE LAW OF ASSESSMENTS. 
 
 competent to fix, by statute, a minimum value on property 
 for purposes of taxation.^ 
 
 Sec. 137. Excessive Valuation — reviewable for Traud.— 
 Courts will not review a valuation when the assessor exer- 
 cises bis honest judgment and the Board of Equalization 
 refuse to change it on the ground that the value has been 
 fixed too high;^ yet an excessive valuation, made for the 
 purpose of compelling the owner of the property to pay more 
 than his fair proportion of tax will be reviewed and set 
 aside as fraudulent.^ An excessive valuation, free from 
 
 tage or disadvantage of location, 
 quality of soil, quantity and quality 
 of standing timber, water privileges, 
 mines, minerals, quarries, or other 
 valuable deposits known to be avail- 
 able therein, and all buildings, fixed 
 machineiy and improvements of 
 every description thereon, and their 
 value." In passing upon the valid- 
 ity of assessments made under the 
 rules referred to, the court used the 
 following language: " By the rules 
 in question, these statutory princi- 
 ples were utterly ignored and disre- 
 garded. An arbitrary classification 
 was applied to the real estate. . . . 
 The real estate is valued solely with 
 reference to the quantity of pine 
 timber standing upon it, without 
 talcing into account the quality of 
 the pine, its location up or down the 
 stream, or the character of the soil, 
 or those other elements which deter- 
 mine the value of land, and which 
 the statute says the assessor shall 
 consider and regard in making the 
 valuation. That a valuation thus 
 made would necessarily operate un- 
 justly and unequally, seems to us 
 too plain for discussion." Hei-sey 
 V. BaiTon County, 37 Wis. 77. 
 
 Fixing a minimum value. 
 
 A statute of North Carolina, pro- 
 viding that railroad beds listed for 
 taxation " shall not be valued at 
 less than $8,000 per mile," irrespec- 
 tive of the actual value thereof, con- 
 
 flicts with the constitution, and is 
 void. Atlanta & North Carolina K. 
 K. Co. V. Commissioners of Cateret 
 County, 75 N. C 474. 
 «Id. 
 
 1 Rhea v. Umatilla County, 2 Or. 
 300; Darragh v. Bird, 3 Id. 249. 
 
 2 Where the complainant charged 
 that the assessor fraudulently as- 
 sessed his lands above their value, 
 and relatively very much beyond the 
 assessment of other property, for the 
 purpose of relieving resident tax- 
 payers of their proportion of the 
 taxes, while expressing the opinion 
 on another ground that the com- 
 plaint could not be sustained, to wit, 
 because it did not state what amount 
 was a fair valuation of the land, and 
 offer to pay that amount, yet, on the 
 charge that the supervisors had pur- 
 posely assessed the complainant's 
 land beyond its value, and above the 
 assessment of other persons, with a 
 fraudulent intent to compel him to 
 pay an undue proportion of the pub- 
 lic taxes, the court, per Coolby, 
 Justice, used the following language : 
 " The question then is this: Apub- 
 lic officer, being empowered by law 
 to apportion certain burdens among 
 the citizens as in his judgment shall 
 be just, being actuated by a fraudu- 
 lent purpose, instead of obeying the 
 law disregards its mandate, declines 
 to bring his judgment to bear upon 
 the question submitted to him, and 
 
VALUATION. 
 
 257 
 
 fraudulent design on the part of the assessor is not ground 
 to enjoin the collection of the tax, nor is mere irregularity in 
 making the assessment sufficient cause if the assessment be 
 free from fraud.^ But when a valuation is so grossly out of 
 
 arbitrarily and with express refer- 
 ence to defeating tlie ends at wliicli 
 tlie law aims, determines to impose 
 an excessive burden ixpon a particu- 
 lar citizen : has this citizen any rem- 
 edy against the threatened wrong? 
 AVe think tliis question can admit of 
 hut one answer. A discretionary 
 power cannot excuse an officer for 
 refusal to exercise his discretion. 
 His judgment is appealed to — not 
 his resentments, his cupidity, or his 
 malice. He is the instrument of the 
 law to accomplish a particular end 
 through specified means, and when 
 he purposely steps aside from his 
 duty to inflict a wanton injiu-y, the 
 confidence reposed in him has not 
 disarmed the law of the means of 
 prevention. His judgment may in- 
 deed be final, if he shall exercise it; 
 but an arbitrary and capricious ex- 
 ertion of official authority, being 
 without law, and done to defeat the 
 purpose of the law, must, like all 
 other wrongs, be subject to the law's 
 corrections." Merrill u. Humphrey, 
 24 Mich. 170. 
 
 3 Gage V. Evans, 90 111. 570. An 
 assessment was made under the fol- 
 lowing circumstances: In the ab- 
 sence of the owner of a stock of 
 goods the assessor found the owner's 
 brother, who made otit the list and 
 fixed the value at $80,000, whereas 
 the actual value was only $30,000. 
 The assessor adopted the value thus 
 given, and made the assessment ac- 
 cordingly. An action was brought 
 to enjoin the collection of the tax, 
 on the ground that the assessment 
 was made without requiring from 
 the owner a list, and that it was 
 made " wrongfully, arbitrarily, 
 fraudulently, and without notice 
 
 17 
 
 to or consent or knowledge of the 
 owner." But the court held that 
 the facts did not show a fraudulent 
 assessment at too high a rate, and 
 that although it was irregular to 
 make an assessment without notice, 
 the facts did not show such an irregu- 
 larity as vitiated the assessment. On 
 the point that an excessive valuation 
 is not ground for an injunction, see 
 Spencer v. The People, 68 111. 512, 
 where the court said: "We are of 
 opinion that the power does not be- 
 long to any court to revise the as- 
 sessment made by an assessor, and 
 change or set aside any valuation of 
 property made by him, wlien his 
 judgment has been honestly exer- 
 cised, and upon a, right basis." On 
 the ground that an irregularity is in- 
 sufficient ground for an injunction, 
 see Du Page County v. Jenks, 65 111. 
 286: " As to the objection that the 
 assessors did not call on persons for 
 a list of their taxable property, that 
 was an omission of duty on the part 
 of the assessors, but it is only an ir- 
 regularity, and affords no ground for 
 restraining the collection of the tax." 
 Pacific Hotel v. Lieb, 83 111. 609, 10. 
 The constitution of Illinois contains 
 a provision in the following words : 
 " The general assembly shall pro- 
 vide such revenue as maybe needed, 
 by levying a tax by valuation, so 
 that every person and corporation 
 shall pay a tax in proportion to the 
 value of his, her, or its property; 
 such value to be ascertained by some 
 person or persons to be elected or 
 appointed in such manner as the 
 general assembly shall direct, and 
 not otherwise." Under this consti- 
 tutional provision, it is incompetent 
 for the law-making power to author- 
 
258 
 
 THE LAW OF ASSESSMENTS. 
 
 proportion to the actual value as to make it apparent that 
 the assessor could not honest])' have exercised his judgment, 
 and must have known that his estimate of value was exces- 
 sive, it will be regarded as evidence of a fraud on his part 
 against the tax-payer and the courts will afford relief upon 
 offering to pay a tax upon a reasonable assessment.^ 
 
 Sec. 138. Erroneous Principle in Making — not Reviewable — 
 ■when: and in Local Assessments — when Re viewable. — A statute 
 of New York provided that if, in the proceedings relative 
 to any assessments for local improvements in the city of 
 New York, or in the proceedings to collect the same, any 
 fraud or substantial error be alleged to have been com- 
 mitted, steps may be taken to vacate the assessment. 
 
 ize any other department of the gov- 
 ernment than the persons elected or 
 appointed under a general law, pro- 
 vided as in the provision of the con- 
 stitution above quoted, to fix values 
 for taxable purposes. Tax-payers 
 must submit to the values fixed by 
 the assessors and boards of equaliza- 
 tion, miless they can show that the 
 values were " fraudulently made, or 
 tbat the property was not liable to 
 taxation, or the legislature has, in 
 authorizing the tax, disregarded or 
 transcended the principles of equal- 
 ity, or where a tax has been levied 
 when not authorized by law." The 
 acts of the ofticers clothed by au- 
 thority of law in fixing and equal- 
 izing values, in the absence of fraud, 
 are final. The mere fact that the 
 assessor or board of equalization 
 acted upon an erroneous or even 
 absurd basis in ascertaining values, 
 affords no redress. If the courts 
 were to examine or review the reason- 
 ing of the assessors and equalizers, 
 it would be practically constituting 
 them the assessors, instead of the 
 officers elected or appointed for that 
 purpose, and clothed by the Consti- 
 tution with that prerogative. Re- 
 public Life Ins. Co. v. Pollak, 75 
 111. 204, 5. 
 
 Ocer-valuation. 
 
 In a writ of certiorari sued out to 
 set aside an assessment, one of the 
 grounds relied on was over-valua- 
 tion. It was alleged that when the, 
 property was assessed it could not 
 have been sold for over $400,000, 
 wliereas it was valued at $1,000,000. 
 In reply to this objection to the as- 
 sessment, tlft court ruled that, "If 
 over-valued, the remedy of the own- 
 ers was by an appeal to the commis- 
 sioners selected for the purpose of 
 revising the estimate of the asses- 
 sors, and this remedy they availed 
 themselves of." State v. Collector 
 of Jersey City, 4 Zabriskie 118. 
 
 Illegal item in tax levy. 
 
 But while no remedy was allowed 
 in the above proceeding for over- 
 valuation, it appearing that $2,458. 98, 
 in making up the estimate for the 
 tax levy, was incl uded for losses and 
 contingencies, without authority of 
 law; instead of setting the assess- 
 ment aside for this illegal item of 
 taxation, the court referred the case 
 to a commissioner to ascertain what 
 the share of the prosecutors of the 
 writ of this illegal item was, and to 
 that extent ordered the assessment 
 to be set aside and all the rest 
 affirmed. 
 
VALUATION. . 259 
 
 Where the "substantial error," was, " that the principle 
 upon which the assessment was apportioned is erroneous, it 
 not being imposed on the several lots in proportion to the 
 advantage which each derived from the paj'meiit, but in 
 proportion to tlie frontage," it was held that this was a 
 matter that could not be inquired into in this form of pro- 
 ceeding; that if an error was committed in not making an 
 equitable apportionment of the sum assessed, it was an 
 error of judgment, and not a fraud or irregularity in the 
 proceedings.^ And in a later case on the same points, the 
 same court saj-^ : " Tlie conclusion reached by them was a 
 matter of judgment on their part. It was their duty to 
 judge. They had opportunity to examine personally. . . . 
 To criticise the results of their judgment would practically 
 require tiiat we should, ourselves, try every question of 
 value and of benefit, and that, too, upon evidence different 
 from that before the assessors. Their error of judgment, 
 if, in fact, it existed, was not an error in the proceedings, 
 and not the subject of our review under the statute."'' 
 Courts will not revise the judgment of assessors in a matter 
 of valuation mere!}' because a wrong principle was applied 
 — the remedy is by appeal to the Board of Equalization.^ 
 But it is not everj' erroneous principle applied in making a 
 valuation which will be free from review bj'; legal tribunals 
 where a wrong or injury is worked to a tax-payer. Where 
 the method adopted was wrong in principle, and works an 
 
 ' In re Eager, 46 N. Y. 109. warrant commanding liim to collect 
 
 ^In re C'ruger, 84 N. Y. 621. them." The court in rendering the 
 
 'San Jose Gas. Co. v. January, opinion say: "In Henrys. Chester, 
 
 57 Cal. 716. In Vermont it appeared 15 Vt. 460, it was held that a list 
 
 that one of the "Listers" of the would not be rendered void by any 
 
 county from each town met and error of judgment in the listers; and 
 
 agreed upon the' then value of an in Spear v. Braintree, 24 Vt. 414, 
 
 average article of each class of prop- that where errors and defects in a 
 
 erty to be appraised in that year, list are incidental or bona fide, it 
 
 and communicated such agreed value will not render the list void as a 
 
 to every lister in the county. Tliis basis of taxation," and that the 
 
 was conceded to be erroneous, and court had always upheld the validity 
 
 the question was whether such of lists as bases for taxation where 
 
 errors "invalidate a list as a basis it has appeared that they were made 
 
 for the assessment of taxes so that in good faith, and the only errors 
 
 a collector cannot justify under a complained of were the result of 
 
260 THE LAW OF ASSESSMEJfTS. 
 
 injury, it may be safe to assume that the covirts will afford 
 relief.* 
 
 But under the statute just referred to (n. 2) an assessment 
 for street improvements, or other local purposes, may be 
 reviewed and corrected under certain circumstances. When 
 the only objection to the assessment is that it is for a 
 greater amount than it should be, and the facts showing 
 the excess are of such a character as to enable the court to 
 distinguish that portion of the assessment which is exces- 
 sive from that portion which is proper and correct, and the 
 proceedings are of such a character as will justify the 
 appellate court to do so, the court will order a reduction of 
 the illegal excess instead of sending the case back to the 
 lower court, from which the appeal or other process has 
 been taken, to have the correction made there.** But if the 
 record do Jiot present any criterion by which the illegal 
 portion of the assessment can be deducted from the other 
 portion, the whole assessment will be held to be illegal.^ 
 Where a contract for grading a street provided that in case 
 the grade should be changed during the progress of the 
 work, and the contractor was to conform to the altered 
 grade at the prices in the contract, so far as applicable, and 
 the grade was altered, and the work thereafter done under a 
 contract with another party at higher prices, making a differ- 
 ence in the entire work covered by the contract of 148,000, 
 and the assessment for the work was made several months 
 before the time within which the work was to be done under 
 the contract entered into before the alteration of the grade 
 had expired, and there was nothing contained in the record 
 showing tliat the work, under the alteration of the grade, 
 could not be done under the original contract at the lower 
 prices, it was held that the parties assessed were entitled to 
 have the benefit of the lower prices, and, to that extent, to 
 have their taxes reduced.'^ There seems to be no good 
 reason why the general provisions of tliis statute might not 
 
 mistakes in judgment on the part of sjTii re Auchmuty, 90 N. T. 685. 
 the town officers. Wilson v. Wheeler, ^ In re N. Y. P. E. Pub. School, 
 
 55 Vt. 447-453. 75 N. Y. 324. 
 
 * Cambridge ». County Commis- ' Petition of Upson, 89 N. Y. 68. 
 sioners of Middlesex, 114 Mass. 338. 
 
VALUATION. 261 
 
 be extended lo general taxation for all purposes. The 
 courts of the country are looked to as the final arbiters of 
 all matters of contest and dispute. If a speedy remedy 
 were provided for before tlie courts, for testing all valu- 
 ations which were claimed as being excessive, after an 
 application to the Board of Equalization for redress was 
 denied, more equality and uniformity of taxation would 
 be made practicable.^ 
 
 Sec. 139. Valuation of Possessory Claims and Undivided 
 Quantities of Real Estate.— We have already seen that the 
 possessory rights and claims of individuals to the public 
 lands, are property, and are to be listed and assessed as real 
 estate. Assessments of this character should be estimated 
 upon the value of the possessory right, and not the value of 
 the land itself, and the assessment ought to show the dis- 
 tinction.^ Where the assessment of real estate consists of 
 a fixed quantity not definitely located, but the bounds 
 within which it is to be located are known, or consists of 
 an undivided fractional part of a known tract, the value is 
 to be ascertained by the assessor upon the same principles 
 as when sales and purchases are made of the same or lands 
 
 8 Under tlie provisions of the con- was paid to have the matters com- 
 
 stitution of California the State plained of in the petition adjusted, 
 
 Board of Equalization assess all and might allege " that the property, 
 
 railroads within the state " operated in whole or in part, was assessed for 
 
 in more than one county." (Sec. 10, more than its actual value." This, 
 
 Art. 13, Con. Cal.) An amendment it will be seen, was practically a pro- 
 
 to the Political Code made in 1881, vision allowing railroad corporations, 
 
 (§3664, Amendments of 1881, p. 82 P. upon paying a tax assessed against 
 
 C. Cal.) provided that within five their property, to appeal from the 
 
 days after the assessment was " made valuations of the Board of Equali- 
 
 and entered in the books of said zatiou to the courts. There appears 
 
 board," any person dissatisfied with no good reason why this privilege 
 
 the assessment might, by petition, should be granted to railroad cor- 
 
 apply to have the assessment cor- porations and withheld from other 
 
 rected in any particular. At the tax-payers. Doubtless, as a law 
 
 hearing the proofs were to be taken available to all tax-payers, the meas- 
 
 in writing, and the board's determi- ure, or one similar in principle, 
 
 nation of the petition was to be would be a wise one; but the Cali- 
 
 reduced to writing, and any person fornia legislature at its next session 
 
 interested, feeling aggrieved, after repealed this provision, so that it no 
 
 paying the tax, might bring suit in longer exists. (Sec. 3664, Amend- 
 
 the Superior Court of the county in ments 1883, p. 65 P. C. Cal.) 
 which the tax, or any part thereof, ^ People v. Shearer, 30 Cal. 661. 
 
2G2 
 
 THE LAW OF ASSESSMENTS. 
 
 of similar quality by private contract, or when sold under 
 execution.^ 
 
 Sec. 140. Valuation — ^where a part of the property is ex- 
 empt—Where real property, used for religious, or other 
 purposes, is by law exempted from taxation, and a lot or 
 parcel containing a building two or more stories high, is, 
 only as to one or more of the stories or portions of the 
 building so used, that portion not so used is subject to tax- 
 ation. In all such cases, the value onh' of the portion not 
 exempt, should be valued for assessment. Where the 
 upper story or stories are within the exemption, a ratable 
 proportion of the value of the land covered by and sup- 
 porting the building should be considered as attaching to 
 the exempted story or stories.-' Where separate parts of 
 the same, or where separate stories of the same building 
 
 2 People V. Crockett, 37 Cal. 150. 
 
 ^ It should be made to appear upon 
 the face of the assessment that the 
 portion of the realty used for the 
 purposes which exempt it from taxa- 
 tion, is not included in the vaUiation 
 or assessment. Unless this is done 
 it would be impossible without evi- 
 dence aliunde to deterrahie whether 
 the property or portion exempt by 
 law was or was not included in the 
 .assessment. An assessment was 
 made on Holyoke House, u, building 
 live stories high. The four upper 
 stories were used for the purposes of 
 ii college, except an' entrance way 
 through the lower story. The lower 
 story, with this exception, was fitted 
 and used for business purposes. It 
 was conceded that the lower story, 
 except the entrance way, was sub- 
 ject to taxation. Tlie assessor esti- 
 mated the value of the laud ex- 
 cept that portion, covered by the 
 entrance, the foundations and super- 
 structure up to the second story, and 
 omitted all above that, in making 
 the valuation. Upon application to 
 the commissioners, the sum of $423 
 and interest was ordered remitted 
 
 on account of excess in this method 
 of valuation, and they adopted as a 
 rule for valuing the portion of the 
 property subject to taxation, "one 
 third of tlie value of the building 
 together with one half of the value 
 of the land and no more." Upon 
 application for a writ of certiorari 
 to revise this action of tbe commis- 
 sioners, the court say: "To some 
 extent, the land and foundations 
 are appropriated to college purposes, 
 and their whole value cannot fairly 
 or legally be annexed to the lower 
 story of the building. It was within 
 the authority of the county com- 
 missioners to revise an assessment 
 made upon a wrong principle, and it 
 is not slfown by the petitioners that 
 any error was made in the rule 
 adopted by them. The ijrinciiJle 
 upon which the apportionment was 
 made is not stated. It may have 
 been made according to the esti- 
 mated rentable value of each part, 
 or by some other rule equally just 
 and equitable. This action is not 
 open to revision upon the allega- 
 tions in this petition. Cambridge 
 V. County Commissioners, 114 Mass. 
 
VALUATION'. 263 
 
 are owned in severalty, they are treated in the eye of the 
 law as so many separate or detached tenements, and should 
 be assessed separately to the several owners.^ A question 
 would arise in such case whether the value of the ground 
 should be assess.ed wholly to the owner of the lower story 
 or to the owners of the lower and upper stories in ratable 
 proportions. In the absence of an adjudicated case it might 
 not be advisable to express an opinion on this point, as no 
 definite rule could be authoritatively stated ; but upon 
 established principles, a tax-paj'er cannot be charged with 
 taxes on property owned by another person ; so it would 
 seem that if the owner of the lower story owns all below 
 him, he alone ought to be assessed with all below him. 
 Whilst it is true that that portion of the building above the 
 lower story is real estate — it is real estate above tlie ground, 
 and liable to dissolution or destruction through the agency 
 of fire, and unless the owner of the lower story should 
 rebuild, in the absence of a special covenant or agreement 
 requiring the owner below to rebuild, when destroyed, the 
 destroyed upper story could not be replaced.^ 
 
 Sec. 141. Real and Personal Property — also Separate Parcels 
 of real property, assessed to the Same Owner, to be valued separ- 
 ately. — Where -real and personal property, also where separ- 
 
 348. See also Proprietors of Meet- of the same house, consisting of 
 ing-house v. City of Lowell, 1 Met. more tlian one story: "Although 
 538. in the case the parties consider 
 2 The case of Loring B. Bacon, themselves as severally seised of 
 4 Mass. 575, was an action on the different parts of one dwelling house, 
 case for money laid out and ex- yet, in legal contemplation, eacli of 
 pended, in repairs of a house. The the parties has a distinct dwelling 
 facts were that the defendant owned house, adjoining together, the one 
 the lower story and cellar of the being situated over the other. The 
 house, and the plaintiff owned a lower room and the cellar are the 
 chamber over it and the remainder dwelling house of the defendant; 
 of tlie house. Defendant having tlie chamber, roof and other parts 
 refused, after demand and notice, to of the edifice, are the plaintiff's 
 join in repairs to the loof, plaintiff dwelling house, 
 made the repairs and brought his ' The case of Proprietors of Meet- 
 action to recover for damages for ing-house against City of Lowell, 
 refusal to join in the repairs. Wliile already cited, is authority for the 
 holding that the action would not position that when all the property 
 lie, the court said as to the character belongs to one owner and a portion 
 of the ownership of separate parts is exempt and the balance, subject to 
 
2U 
 
 THE LAW OF ASSESSMENTS. 
 
 ate parcels of real property, and distinct classes of personal 
 property are embraced in the same assessment to the same 
 owner, each should be valued separately.^ The tax^payer 
 
 taxation, and the portion that is 
 exempt consists of the upper stories, 
 it is proper to apportion the value of 
 the ground and foundations between 
 the lower story subject to taxation, 
 and the upper stories exempt from 
 taxation. The principle, distinguish- 
 ing between a building belonging 
 wlioUy to one, and wliere separate 
 stories belong to different owners, 
 lies in the right of rebuilding in 
 case of the destruction of the prop- 
 erty. Where the various stories of 
 llie building are held in the same 
 ownership, the right of rebuilding 
 attaches as well to the upper, as to 
 the lower story. But in Micliigan it 
 was intimated that the valuation, 
 where upper stories of a building 
 were exempt from taxation, should 
 be made of the real estate, as if it 
 were entirely unimproved, and then 
 to value the building; after which tlie 
 assessing officer should ascertain and 
 deduct the value of the portion ex- 
 empt from taxation, from the value of 
 the land and portion subject to taxa- 
 tion. Tliis system would furnish 
 the same rule where the property 
 Avas owned by one ownur, where 
 part is exempt, and where different 
 owners own a building of two or 
 more stories and no part is exempt. 
 After noticing the system adopted 
 to give effect to a statute of that 
 state, exempting "all improvements 
 of the value of one hundred dollars 
 and under, or lands actually used 
 and occupied for farming purposes 
 and all buildings thereon, of the 
 value of one hundred dollars and 
 under," the court proceeded to say: 
 " By the same process it is readily 
 perceived, the plaintiffs may have 
 the full benefit of the exemption 
 provided by the statute, (which ex- 
 
 empted ' the personal property of all 
 library, benevolent, charitable and 
 scientific institutions,' incorporated 
 within the state, and their real 
 estate actually occupied for such 
 purposes). The portion of the build- 
 ing occupied by them," (a library 
 association) "for the purposes for 
 which they were incorporated, may 
 be excluded in the estimation of the 
 value of their real estate, by the 
 assessor, and the tax levied thereon 
 will be laid only upon the value of 
 that which is not exempt, though 
 the description of the property will 
 em brace the whole. ' ' Detroit Young 
 Men's Society v. Mayor, 3 Mich. 173. 
 ^ Justice Shaw, in ruling on this 
 point, said: "A dwelling house 
 with the land and appurtenances 
 occupied with it, a warehouse so 
 occupied, a farm or other parcel of 
 real estate let to the same tenant by 
 one and the same lease ; parcels de- 
 tached from each other and used 
 and occupied for different pui-pqses, 
 may respectively be regarded as 
 separate and distinct estates. When 
 this can be done, they must be 
 deemed separate and distinct estates, 
 to be distinctly valued and assessed. 
 There may be cases of difficulty; as 
 where one parcel of vacant land is 
 divided and several dwelling houses 
 erected, and sold or let to different 
 individuals, it is very questionable 
 whether the tax shall be apportioned, 
 or whether each parcel of the sub- 
 division may be held liable for the 
 wliole. But where the distinct 
 estates are in fact severally valued, 
 it shows satisfactorily what was the 
 understanding of the assessors, and 
 proves that no such difficulty existed 
 in the particular case." Hayden v. 
 Foster, 13 Pick. 497, {ante n. 8, §113) ; 
 
VALUATION, 
 
 265 
 
 has a right to know how much each tract and class of pro- 
 perty has been valued at, so that he may exercise his right 
 to apply to the board of equalization for correction or re- 
 duction, if, in his judgment, the value has been fixed above 
 the actual value, or to tender the tax on that portion of the 
 assessment which he deems to be legal, and contest such 
 portions as, in his judgment, are illegal. It is his privilege 
 to pay, or tender payment of, the taxes on any portion of 
 the property which is separately described and valued in 
 the assessment, and contest the validity of the balance. In 
 Nevada it was held that a joint valuation of two contiguous 
 lots to the same person who was the owner of both, was 
 not, for that reason, invalid ; but the decision was by a 
 divided court.^ Where the statute requires the various 
 
 see also Slummin v. Inman, 26 Me. 
 228; Terrill v. Groves, 18 Cal. 151. 
 
 - This doctrine was held in Wright 
 ■c. Cradlebaugh, 3 Nev. 348. Justice 
 Beatty, in passing on this point, 
 used the following language : " We 
 see nothing in this which in direct 
 language prohibits the joint assess- 
 ment of two contiguous lots to the 
 same person. We see no possible 
 objection to such assessment. If 
 both lots belong to the same party, 
 he is bound to the state for the en- 
 tire tax, and lias no right to com- 
 plain that he cannot pay the tax on 
 one without paying the tax on both. 
 If the same party owns both lots, 
 any property of which he may be 
 possessed, real or personal, is bound 
 for the whole tax. He cannot be 
 injured by the failure to make a 
 separate assessment. If two lots 
 are assessed jointly, and one be- 
 longs to A. and the other to B., we 
 can see that a difficulty might arise 
 about the payment of the taxes. A. 
 might wish to pay on his, but not on 
 B.'s lot. They might not necessarily. 
 be of the same value, and the re- 
 ceiver of taxes would have no right 
 to assess the value of each. But the 
 very same difficulty would arise if a 
 
 single lot were assessed to A., and 
 half the lot belonged to B. The 
 two halves would not necessarily be 
 of the same value. The receiver of 
 taxes has no right to establish the 
 value or amount of taxes on any 
 piece of property. The law seems 
 to have made no provision for any 
 case of this kind. If A. were sued 
 for the entire tax on a lot, arid 
 should set up in defense that lie 
 only owned one half of the lot, a 
 question might arise whether the 
 court could apportion the tax and 
 give judgment for his equitable por- 
 tion, or whether it would be a good 
 defense to the entire action. But it 
 is surely true that the defense would 
 be just as available in a case where 
 A. owned only one half of a lot, as 
 in a case wliere two contiguous lots 
 were taxed to him and he owned 
 only one of them." In the case of 
 People 13. Moore, 1 Ida. 667-670, the 
 court ruled that the form of assess- 
 ment, prescribed by the statute, re- 
 quired property to be listed sepa- 
 rately, and the value and taxes to be 
 carried into separate columns, and 
 that if this were not done, but the 
 taxes carried into one column of ag- 
 gregates the assessment is invalid, 
 
266 
 
 THE LAW OF ASSESSMENTS. 
 
 classes of personal property to be stated in the assessment, 
 it follows that the value of each should be sepai-ately 
 stated.^ The cost of street improvements, made at the 
 ratable expense of abutting owners, must be assessed to 
 each lot separately, even if contiguous lots be owned by 
 the same person, unless so built upon as to make a sale 
 
 and the taxes cannot be enforced. 
 The Xevada case seems to be unsup- 
 ported by authority, and Johnson, 
 .Justice, delivered a dissenting opin- 
 ion. In the case of Northeiyi Pa- 
 cific E. Co. V. Garland, Cb. Justice 
 Wade of the Supreme Court of 
 Montana, has, in an exhaustive 
 opinion, examined the question of 
 exemptions from taxation as well as 
 the manner of making assessments. 
 On the question of separate valua- 
 tions, the following language is em- 
 ployed: "There is another question 
 arising upon this assessment. By 
 virtue of sections 1013 and 1015 of 
 the statute, the list and return of 
 the assessor shall contain a separate 
 and distinct description and valua- 
 tion of the real and personal prop- 
 erty. These two sections, taken 
 together, require the separate listing 
 and separate valuation of the per- 
 sonal and real ijroperty, and forbid 
 that the real and personal property 
 be lumped together and assessed in 
 a mass. The reasons for these pro- 
 visions of the statute are obvious. 
 Unless the real and personal prop- 
 erty are -separately and distinctly 
 described and valued, it would be 
 impossible for the board of equali- 
 zation to properly equalize the 
 taxes." Northern Pacific R. Co. v. 
 Carland, 3 Pac. Rep. 148. 
 
 'An entry in the assessment as 
 follows: " Mining implements, cars, 
 tools, iron and steel supplies $2000," 
 was held bad for want of a separate 
 valuation on each class of property. 
 People V. Sierra B. Q. M. Co., 39 
 Cal. 51.5. This case was approved 
 
 and the doctrine applied to an as- 
 sessment of separate parcels of real 
 estate, valued in gross, in People v. 
 HoUister, 47 Cal. 411. In a recent 
 case suit was brought to recover 
 taxes, under an assessment as fol- 
 lows : "7,125 shares stock of Neva- 
 da Bank; 3,200 shares stock People's 
 M. A. M.Co. mining stock; 250 shares 
 stock Pacific Wood, Lumber ani 
 Flume Company; 1,000 shares stock 
 San Francisco Gas Company; 47i 
 shares stock Giant Powder Com- 
 pany ; 3,000 shares stock Virginia 
 & Gold Hill Water Company, &c., 
 &c., solvent credits;" &c., &c., as- 
 sessed at $10,680,000. This assess- 
 ment was held invalid as to the 
 shares of stock, on the ground of a 
 double assessment — but the court 
 evidently would have held the as- 
 sessment bad for want of a separatp 
 valuation of the different classes of 
 property, had the other point not 
 disposed of the case. The judge 
 (Justice Sawybk, XJ. S. C. C. Cal.,) 
 made use of the following language : 
 " I am also inclined to think the tax 
 void, as an assessment in gross — a 
 lumping assessment upon the aggre- 
 gate of a great many thousand 
 shares of stock in numerous corpo- 
 rations organized for a great variety 
 of purposes, having no relation to 
 each other, and no common element 
 of value . . . like those described 
 in this assessment, affords no means 
 of knowing whether any part or 
 class of it has been improperly 
 assessed or not. City & County 
 of San Francisco v. Mackey, 3 West 
 Coast R. 697, (Cal.) 
 
VALUATION. 
 
 20,7 
 
 of one of them impracticable. In the latter case the two 
 lots may be treated as one parcel.* 
 
 Sec. 142. Valuation of Railroads. — The right of way and 
 roadbed of railways, in the absence of statpte regnlations, 
 are treated as real estate, or an interest in land, for taxable 
 purposes. The rule for estimating the value of part of an 
 entire line of road, which extends beyond the county or 
 taxing district, was at one time adjudged to be the mere 
 value of adjoining lands for agricultural purposes, and of 
 material of like character, disconnected from the uses to 
 which it was applied.^ A different rule, one founded upon 
 the doctrine of uniformity and equality, and pronounced by 
 the same court, is, to estimate railroads within a county or 
 taxing district having connections beyond, at their value 
 as a connected part of the entire line of road, and in view 
 of its productiveness' for its use.^ This rule of valuation 
 
 * Kemper v. King, 11 Mo. App. 
 128. 
 
 ' In the case of the Albany & Sche- 
 nectady Kailroad Co. v. Osborn, 12 
 Barb. 225, the court held that the 
 assessors "are simply to ascertain 
 the value of the land, and the erec- 
 tions or fixtures thereon irrespective 
 of the consideration whetlier the 
 road is well or ill managed, or 
 whether it is profitable to the stock- 
 holders, or otherwise. Such prop- 
 erty is to be appraised in the same 
 manner as the adjacent lands, be- 
 longing to individuals, and without 
 reference to other parts of the rail- 
 way." This rule was recognized as 
 correct, and applied in a subsequent 
 case in the same state. Albany & 
 West Stockbridge E. R. Co. v. Town 
 of Canaan, 16 Barb. 247. 
 
 ^ Speaking to this point the court 
 say: "To sever, for the purpose of 
 assessment, the buildings and super- 
 structure, and call the residue farm- 
 ing lands, would be a gross absur- 
 dity. A farm four rods wide and 
 nine miles long, intersected with 
 public highways, cut up with cattle 
 
 gtiards, culverts and bridges, divided 
 lengthwise by a graded embankment 
 with ditches on either hand, and oc- 
 cupying a large share of its wealth, 
 would be a poor investment either 
 for cultivating or grazing purposes ; 
 and no assessor would be justified in 
 appraising it at $40 an acre because 
 the adjoining farms, which were 
 useful as such, were of that value. 
 The Jaw as well as good sense, re- 
 quired that the assessors sliould 
 regard this property, ijrecisely wliat 
 it was, and judge of its value accord- 
 ingly. If they adopted any snch 
 subdivision of parts as that pre 
 sented by the applicant, it would 
 then be their duty, after estimating 
 the buildings and superstructure, to 
 inquire as to the value of that por- 
 tion of the railroad lying in their 
 town, considering its embankments, 
 ditch&s, bridges, culverts, guards, 
 cuttings, in short everything that 
 made it what it was; and determine 
 its value in tlie condition to which 
 these constituent parts of a railroad 
 had brought it. As part of the data 
 from which to judge of value, they 
 
268 
 
 THE LA"W" OP ASSESSMENTS. 
 
 has been incorporated into the legislature o£ a number of 
 states where the valuation and ast^essuieiits of all railroads 
 extending into two or more counties is made by a State 
 Board of Equalization. ^ The rule is also applicable to 
 
 were entitled to consider the cost of 
 the real estate of the road and the 
 productiveness of its use, for, while 
 these are not the standard of value, 
 ihey are elements through which the 
 standard may be ascertained. . . . 
 I have no question also, that in esti- 
 mating the value of that portion of 
 the railroad in their town, they were 
 not bound to consider it as an isola- 
 ted parcel of the company's road, 
 terminating at the boundaries of 
 their town, and having no connec- 
 tions beyond. They were entitled to 
 look upon it as it is, a portion of a 
 completed railroad with its appro- 
 priate termini, and to ascertain the 
 value of so much of the ' Buffalo 
 and State Line Railroad,' as lies in 
 their town, limiting their considera- 
 tion of it only to the value of that 
 part of the real estate within their 
 jurisdiction, which contributes to 
 make up the entire thing, stretch- 
 ing in both directions beyond them." 
 People V. Fredericks, 48 Barb. 179. 
 The same ruling was made in a sub- 
 sequent case in the New Tork Court 
 of Appeals, where similar rules for 
 the valuation of a line of railway 
 had been adopted. The assessors, 
 after examining tlie vice-president 
 of a railway corporation as to the 
 value of its road within their dis- 
 trict, acting on their own judgment, 
 fixed the value thereof as a con- 
 nected part of a line of railway ex- 
 tending beyond their county or dis- 
 trict; and the court sustained the 
 assessment. The court used the fol- 
 lowing language: "The argument 
 of the relator's counsel is, that this 
 should be assessed, as an Isolated 
 piece of land, having in substance, 
 no beginning or end; that is, not 
 
 connected with anything at either 
 end beyond the limits of the town. 
 A railroad through the town of Ham- 
 burgh only, having no connection at 
 eitlier end, would be of no value. 
 The erections and superstructures 
 would destroy its value for farming 
 purposes. As a railroad It would 
 have no passengers and no business, 
 
 and would be worthless A 
 
 mill race, disconnected from the 
 mill, would be of no value. The 
 mill severed from its race would be 
 of little value. A block of stores, 
 walled off from all neighboring con- 
 nections, or deprived of the value 
 resulting from adjoining business 
 and commerce, would be of little 
 value. Each item of property, how- 
 ever, with its connections and ac- 
 companiments, and used for the pur- 
 pose, and in the manner intended, 
 might be of great value. Each 
 piece of property is to be estimated 
 in connection with its position, and 
 the business and profit to be derived 
 therefrom. The road in question is 
 part of a whole, and is to be valued 
 as such. This is independent Of the 
 capital. It is an estimate of tlie 
 value of the real estate for railroad 
 purposes, as a mill is to be estimated 
 for its value for milling purposes, 
 and not at its value for a church or 
 a banking-house. People ex rel. v. 
 Barker, 48 N. Y. 77. 
 
 3 The state of Illinois, by its State 
 Board of Equalization, aided by 
 statements required to be made by 
 corporations and by assessments of 
 county assessors, within their re- 
 spective counties, of portions of 
 railways, made an equalized as- 
 sessment upon the value of the 
 entire property of railroad corpora- 
 
VALUATION. 
 
 269 
 
 telegraph lines and other classes of property similarly 
 located or used. 
 
 tions, which included all their prop- 
 erty within the state, also their stock 
 and franchises, and distributed the 
 assessment to the respective coun- 
 ties, towns. Tillages, districts, and 
 cities, according to the length of the 
 main track in each county and taxa- 
 ble district. (Sec. 43 Eev. Act 111. 
 1872, cited in State Railroad Cases, 
 02 U. S. Rep. 580. ) In regard to the 
 validity of this method of assess- 
 ment, in this same case, the court 
 said, after noticing the objection 
 that the valuation was not made by 
 the assessor of the particular part 
 of the road situated in the particu- 
 lar county or taxing district: "A 
 railroad must be regarded for many, 
 indeed for most purposes, as a unit. 
 The track of the road is but one 
 track from one end of it to the other, 
 and, except In its use as one track, 
 is of little value. In this track as a 
 whole, each county through which 
 it passes has an interest much more 
 important than it has in the limited 
 part of it lying within its boundary. 
 Destroy by any means a few miles of 
 this track within an interior county, 
 so as to cut off the connection be- 
 tween the two parts thus separated, 
 and, if it could not be repaired or 
 replaced, its effect upon the value ot 
 the remainder of the load is out of 
 all proportion to the mere local part 
 of it destroyed. A similar effect on 
 the value of the interior of tlie road 
 would follow the destruction of that 
 end of the road lying in Chicago, or 
 some other place where its largest 
 traffic centers. It may well be 
 doubted wliether any better mode 
 of determining the value of that 
 portion of the track within any one 
 county has been devised tban to as- 
 certain the value of the whole road, 
 and apportion the value within the 
 county by its relative length to the 
 
 whole. State Railroad Tax Cases, 
 92 U. S. E. 608. In the state of 
 California, the assessment of , rail- 
 roads extending through more than 
 one county is provided for in sees. 
 3664, 3665, 3666, 3667, 3668, 3669, 
 3670, and 3671 of the Political Code. 
 The first two of these sections will 
 give a correct idea of the system. 
 " Sec. 3664. The president, secre- 
 tary, or managing agent, or such 
 other officer as the state board of 
 equalization may designate, of any 
 corporation, and each person or as- 
 sociation of persons, owning or ope- 
 rating any railroad in more than one 
 county in this state, shall, on or be- 
 fore the first Monday in April of 
 each year, furnish the said board a 
 statement, signed and sworn to by 
 one of such officers, or by the person 
 or one of the persons forming such 
 association, showing in detail for the 
 year ending on the first Monday in 
 March in each year: 1. The whole 
 number of miles of railway in the 
 state; and where the line is partly 
 out of the state, the whole liumber 
 of miles without the state, and the 
 whole number within the state, 
 owned or operated by such corpora- 
 tion, person, or association. 2. The 
 value of the roadway, roadbed, and 
 rails of the whole railway, and the 
 value of the same within the state. 
 
 3. The width of the right of way. 
 
 4. The number of each kind of all 
 rolling stock used by such corpora- 
 tion, person, or association, in ope- 
 rating the entire railway, including 
 the part without the state. 5. Num- 
 ber, kind, and value of rolling stock 
 owned and operated in the state. 
 6. Xumber, kind, and value of roll- 
 ing stock used in the state, but 
 owned by the party making the re- 
 turns. 7. Kumber, kind, and value 
 of rolling stock owned, but used out 
 
270 
 
 THE LAW OF ASSESSMENTS. 
 
 of the state, either upon divisions of 
 road operated by the party making 
 the returns, or by and upon other 
 railways. Also showing in detail 
 for the year preceding the first of 
 January: 1. The gross earnings of 
 the entire road. 2. The gross earn- 
 ings of the road in the state, and 
 where the railway is let to other ope- 
 rators, how much was derived by the 
 lessor as rental. 3. The cost of ope- 
 rating the entire road, exclusive of 
 sinking fund, expenses of land de- 
 partment, and money paid to the 
 United States. 4. Net income for 
 such year, and amount of dividend 
 declared. 5. Capital stock author- 
 ized. 6. Capital stock paid in. 
 7. Funded debt. 8. Number of 
 shares authorized. 9. Number of 
 shares of stock Issued. 10. Any 
 other facts the state board of equal- 
 ization may require. 11. A descrip- 
 tion of the road, giving the points 
 of entrance into and tlie point of 
 exit from each county, with a state- 
 ment of tlie number of miles in each 
 county. When a description of the 
 road shall once have been given, no 
 other annual description thereafter 
 is necessary unless the road shall 
 have been changed. Whenever the 
 road, or any portion of the road, is 
 advertised to be sold, or is sold, for 
 taxes, either state or county, no 
 other description is necessary than 
 that given by the corporation, and 
 the same is conclusive upon the cor- 
 poration, person, or association giv- 
 ing the description. No assessment 
 is invalid on account of a misde- 
 scription of the railway, or the right 
 of way for the same. If such state- 
 ment is not furnished as above pro- 
 vided, the assessment made by the 
 state board of equalization upon 
 the property of the corporation, 
 person, or association failing to fur- 
 nish the statement, is conclusive 
 and final. Sec. 3665. The state 
 board of equalization must meet at 
 
 the state capitol on the first Monday 
 in August, and continue in open 
 session from day to day, Sundays 
 excepted, until the third Monday in 
 August. At such meeting the board 
 must assess the franchise, roadway, 
 roadbed, rails, and rolling stock of 
 all railroads operated in more than 
 one county. Assessment must be 
 made to the corporation, person, or 
 association owning the same, and 
 must be made upon the entire rail- 
 way within the state, and must in- 
 clude the right of way, bridges, 
 culverts, wharves, and moles upon 
 which the track is laid, and all 
 steamers which are engaged in 
 transporting passengers, freights, 
 and passenger and freight cars 
 across waters which divide the 
 road. The depots, stations, shops, 
 and buildings erected upon the space 
 covered by the right of way are as- 
 sessed by the assessor of the county 
 wherein they are situate. Within 
 ten days after the third Monday of 
 August, the board must apportion 
 the total assessment of the fran- 
 chise, roadway, roadbed, rails, and 
 rolling stock of each railway to the 
 counties," or cities and counties, in 
 which guch railway is located, in 
 proportion to the number of miles 
 of railway laid in such counties, and 
 cities and counties. The board must 
 also, within said time, transmit by 
 mail to the county auditor of eacli 
 county, or city and county, to which 
 such apportionment shall have been 
 made, a statement showing the 
 length of the main track of such 
 railway within the county, or city 
 and county, with a description of 
 the whole of said track within the 
 county, or city and county, in- 
 cluding the right of way, by metes 
 and bounds, or other descrip- 
 tion, sufficient for identification; 
 tlie assessed value per mile of 
 the same as fixed by a pro rata dis- 
 tribution per mile of the assessed 
 
VALUATION. 
 
 271 
 
 value of the whole fraiirhise, road- 
 way, roadbed, rails, and rolling 
 stock of such railway within the 
 state, and the amount apportioned 
 to the county, or city and county. 
 The auditor must enter the state- 
 ment on the assessment roll or book 
 of the county, or city and county; , 
 and where the county is divided into 
 assessorial townships or districts, 
 then on the roll or book of any 
 township or district he may select, 
 and enter the amount of the assess- 
 ment apportioned to the county, or 
 city and county, in the . column of 
 the assessment hook or roll as afore- 
 said, which shows the total value of 
 all property for taxation, either of 
 the county, city and county, or such 
 township or district. On the first 
 Monday in October, the board of 
 supervisors must make and cause to 
 be entered in the proper record book 
 an order stating and declaring the 
 length of main track of the railway 
 assessed by the state board of equal- 
 ization within the county; the as- 
 sessed value per mile of such railway, 
 the number of miles of track, and 
 the assessed value of such railway 
 lying in each city, town, township, 
 school, and road district, or lesser 
 taxing district in the county, or city 
 and county, through which such 
 railway runs, as fixed by the state 
 board of equalization, wliich shall 
 constitute the assessment value of 
 said property for taxable ptirposes in 
 such city, town, township, school, 
 road, or other district; and the clerk 
 of the hoard of supervisors must 
 transmit a copy of each order or 
 equalization to the city council, or 
 trustees, or other legislative body or 
 incorporated cities or towns, the 
 trustees of each school district, and 
 the authorized authorities of other 
 taxation districts through which such 
 railway runs. All such railway prop- 
 erty shall be taxable upon said as- 
 sessment, at the same rates, by the 
 
 same officers, and for the same pur- 
 poses as the property of individuals 
 within such city, town, township, 
 school, road, or other lesser taxation 
 districts respectively. If the owner 
 of a railway assessed by the state 
 board of equalization is dissatisfied 
 with the assessment made by the 
 board, such owner may, at the meet- 
 ing of the board, under the pro- 
 visions of see. 3692 of the Political 
 Code, between the third Monday in 
 August and the third Monday in 
 September, appeal to the board to 
 have the same corrected in any par- 
 ticular, and the board may correct 
 and increase or lower the assessment 
 made by it, so as to equalize the 
 same with the assessment of other 
 property in the state. If the board 
 shall increase or lower any assess- 
 ment previously made by it, it must 
 make a statement to the county 
 auditor of the county affected by 
 the change in the assessment, of the 
 change made, and the auditor must 
 note such change upon the assess- 
 ment book or roll of the county, as 
 directed by the board." Amend- 
 ments Pol. Code Cal. 1883, p. 65-68. 
 
 Assessment of railroads and tele- 
 graph lines in Nebraska. 
 
 Where a railroad or telegraph line 
 is situated in two or more counties, 
 in the state of Nebraska, it is made 
 the duty of an oflBcer of the com- 
 pany, whether incorporated or not, 
 to list under oath, for assessment 
 and taxation, the roadbed, super- 
 structures, right of way, rolling 
 stock, side track, telegraph lines, 
 furniture, fixtures and personal 
 property belonging to the corpora- 
 tion or company; and it is made the 
 duty of the state board of equaliza- 
 tion to value and assess such prop- 
 erty "at its actual cash value for 
 each mile of said road or line." 
 B. &. M. R. R. R. Co. V. Lancaster 
 County, 7 Neb. 35. Under this re- 
 quirement, grounds within a city, 
 
272 
 
 THE LAW OF ASSESSMENTS. 
 
 not laid off into blocks or lots, pur- 
 chased and used by a railroad corpo- 
 ration for depot grounds and side 
 tracks, are deemed as part of the 
 corporation's right of way and side 
 track, and cannot be assessed by 
 the county or city assessor. In 
 
 Colorado, railroads and the personal 
 property of corporations or individ- 
 uals operating railroads are assessed 
 by the state board of equalization, 
 under a system similar to that of 
 California. Carlile v. Pullman Pal- 
 ace Car Co., 7 Pac. Eep. 167 (Colo.). 
 
EQUALIZATION. 273 
 
 CHAPTER Xril. 
 
 EQUALIZATION. 
 
 Sec. 151. Boards of Equalization. — Under all systems of 
 taxation, requiring uniformity and equality of taxation, pro- 
 vision is made for equalizing assessments. This is done by 
 the creation of Boards of Equalization. In some states, 
 equalization is wholly done by County Boards — in others, 
 there are both County Boards and a State Board^ — the latter 
 having authority to supervise the action of county boards, 
 so as to bring about uniformity in the valuations of prop- 
 erty similar in kind and value in all parts of the state. A 
 Board of Equalization is also provided, in all municipal cor- 
 porations, to accomplish a similar purpose, when assessments 
 are made within the municipality for its general purposes. 
 And when a special assessment is laid upon adjoining prop- 
 erty to pay the expense of a local improvement, provision is 
 always made for a hearing by an aggrieved party, either 
 before the Council or governing Board of Trustees or a 
 committee appointed for that purpose.^ Where tax-payers 
 are required to furnish lists of their taxable propertj^, and 
 fail or refuse to do so they are usually denied a hearing be- 
 fore the board of equalization. No system of taxation 
 would be legal or perfect which did not contain provisions 
 for receiving and hearing objections or complaints against 
 the proceedings or some portion of them, which are taken 
 to create a liability to pay a tax ; or in case of non-payment, 
 to take private property without the consent of the owner, 
 therefor. 
 
 ^ It is within the province of the Impose upon property heneflted, 
 
 legislature, unless expressly inhibi- what are usually called " Street As- 
 
 ted by constitutional limitation, to sessments," for equalizing such 
 
 provide, in the act of incorporation assessments. City of Stockton v. 
 
 of towns and cities, where munici- Dahl., 3 West C. K. 309 (Cal.). 
 pal corporations are authorized to 
 18 
 
274 
 
 TFIE LAW OF ASSESSMEN^TS. 
 
 Sec. 152. Creation of Boards of Equalization. — Boards of 
 Equalization are created bj' organic law or by statute. 
 "Whether, after a system of assessment is provided for by 
 organic law, which does not include a State Board of Equal- 
 ization, it is within the province of the legislature to create a 
 State Board, depends upon the language constituting the 
 system.^ Where the constitution of a state provides merely, 
 
 1 Sec. 13 of Art. XI. of the first 
 constitution of California read as 
 follows: "Taxation shall be equal 
 and uniform throughout the state. 
 All property in this state shall be 
 taxed in proportion to its value, to 
 he ascertained as directed bylaw; 
 but assessors and collectors of town, 
 county and state taxes shall he 
 elected by the qualified electors of 
 the district, county or town in which 
 the property taxed for state, county 
 or town purposes is situated." No 
 provision existed in the constitution 
 for county boards of equalization 
 nor for a state board of equaliza- 
 tion, but the constitution, after pro- 
 viding that the legislature should 
 provide for county clerks, district 
 attorneys and sheriffs, contained the 
 words, " and other necessary officers, 
 .and shall fix by law their duties and 
 compensation." The legislature, 
 having created, in addition to county 
 boards of equalization, to equalize 
 assessments within their respective 
 counties, a state board of equaliza- 
 tion, prescribed as part of its powers 
 and duties, that it should "determine 
 and transmit to the board of super- 
 visors of each county the rate of the 
 state tax to be levied and collected, 
 which, after allowing for delinquency 
 in the collections of taxes, must be 
 sufficient to raise the specific amount 
 of revenue directed to be raised by 
 the legislature for state purposes." 
 (Section three thousand six hundred' 
 and ninety-six. Political Code, Cal. ) 
 The power of the legislature to 
 create a state board of equalization 
 
 was the subject of judicial determi- 
 nation, at an early day after the en- 
 actment of the law creating it, in 
 the case of Savings and Loan So- 
 ciety V. Austin (46 Cal. 415-^20). 
 Upon the question of the validity of 
 sec. .369R (P. C. Cal.) above quoted, 
 the court, then consisting of five 
 judges, was divided. Justice Ckock- 
 ETt used the following language 
 (p. 479): "As already stated, we 
 entertain no doubt whatever as to 
 the power of the legislature to pro- 
 vide such methods as it shall deem 
 appropriate for equalizing and cor- 
 recting valuations in the several 
 counties as a, basis for equal and 
 uniform taxation during each fiscal 
 year. It is equally clear that it is 
 tlie duty of the legislature to impose 
 no greater burdens on the people, in 
 the shape of taxation, than shall be 
 reasonably necessary to meet the 
 exigencies of the government. To 
 perform this duty intelligently it 
 must first ascertain the total value 
 of the taxable property after the 
 valuations have been equalized. But, 
 as this value is constantly fluctuat- 
 ing, and the taxes must be paid 
 annually, whilst the legislature 
 meets only biennially, it is obvious 
 that it is not possible for the legisla- 
 ture to fix the precise annual rate of 
 taxation understandingly, and with- 
 out incurring the hazard of either 
 exacting from the people much more 
 than will be required to meet the 
 wants of the government, or much 
 less than its necessities will demand. 
 . . . But when the annual assess- 
 
EQUALIZATION. 
 
 275 
 
 that " all taxes should be levied by A'aluation, so that everj' 
 person and corporation should pa}'' a tax in proportion to the 
 value of his or her property, to be ascertained by some person 
 or persons to be elected or appointed in such manner as the 
 General Assembly shall direct" — the legislature has the 
 
 ments have been equalized, and the 
 value of the taxable property then 
 ascertained, it would become a mere 
 matter of arithmetical computation 
 to determine what rate of taxation 
 would produce the reqiiisite amount 
 of revenue, were it not that delin- 
 quencies, to a greater or less extent, 
 invariably occur in the payment of 
 taxes. ... If this can be deemed, 
 in any sense, a delegation of legisla- 
 tive authority, it is only in that re- 
 stricted sense referred to by the 
 Supreme Court of Illinois in the 
 People V. Reynolds, 51 111. 54, where 
 it says that it is competent for the 
 legislature to authorize others to do 
 those things which it might properly 
 yet cannot understandingly do itself. 
 . . . The object to be accomplished, 
 or the thing permitted, may be speci- 
 fied, and the rest left to the agency 
 of others, with better opportunities 
 of accomplishing the object or doing 
 the thing understandingly. In the 
 statute we are considering, the ob- 
 ject accomplished was specified, and 
 only the precise method of accom- 
 plishing it was left in an unimpor- 
 tant particular, to the board, which 
 had better opportunities of accom- 
 plishing the object, and could do it 
 more understandingly." Justice 
 Wallace concurred in the judg- 
 ment of the court, which affirmed 
 the power of the legislature to create 
 the state board, but dissented as to 
 the power of the board to fix or 
 levy the rate of the state tax, in the 
 following language : "In my opinion 
 it is not competent to the legislature 
 to substitute the judgment of the 
 board for its own, upon that matter, 
 
 and I think that its exercise by the 
 board is substantially the exercise 
 of legislative power in the impor- 
 tant respect of fixing tlie rate of 
 taxation to be levied for the support 
 of the government.'' Other ques- 
 tions arose and were passed on in 
 tlie case, the principal one being the 
 validity of the law providing for the 
 assessment of solvent debts. The 
 court held and determined in this 
 case, and also in another involving 
 the same question (People v. Ash- 
 bury, 46 Cal. 527), that solvent 
 debts were liable to taxation; but 
 the same bench, with the exception 
 of one judge (Belcher having re- 
 tired and McKiNSTRT.having come 
 in), in another case, People v. Hi- 
 hernia Bank, 51 Cal. 244), held ami 
 determined that solvent debts were 
 not property within the Meaning of 
 the constitution (§ 14, art. XI.) re- 
 quiring all property to he taxed in 
 proportion to its value, &c. The 
 question of the power to create tlie 
 state board was again considered 
 upon a re-hearing in the case first 
 referred to (Savings and Loan So- 
 ciety V. Austin) by both Justices 
 Ckocketx and Wallace, each of 
 whom adherred to his opinion origi- 
 nally filed. Justice Wallace dis- 
 cussed the power of the legislatiue 
 to create the board as well as its 
 powers to levy the state tax, at length, 
 upon the re-hearing. He held that 
 a "board of officers who alter valua- 
 tions for the purpose of taxation, 
 though called a ' board of equaliza- 
 tion,' are in reality a ' board of as- 
 sessors,' " and planting himself 
 vipon the requirements of § 14, art 
 
276 
 
 THE LAW OF ASSESSMENTS. 
 
 power to create a State Board of Equalization to be elected 
 by the people or appointed by the Governor to equalize as- 
 sessments throughout the state and direct the mode of ascer- 
 taining an equalization of the value of the property assessed 
 by application of such rules and principles as will produce 
 uniformity and equality in valuations; and in this connec- 
 
 XI. of the constitution requiring 
 assessors of county, state, town and 
 district taxes to be elected by tlie 
 people of the district, town or 
 county, argued that a state board of 
 equalization composed of -state offi- 
 cers and persons appointed by tlie 
 governor, was a violation of this 
 provision of the constitution. After 
 noticing the fact that the local 
 (county) boards of equalization or 
 of assessment were elected by the 
 people of the county or tax district, 
 and that the matter entrusted to 
 them came within the purview of 
 this constitutional requirement, he 
 proceeded to use the following lan- 
 guage: "The local boards of asses- 
 sors, called ' boards of equalization ' 
 and the state board of assessors, 
 called the ' state board of equaliza- 
 tion,' are therefore unlike in their 
 respective organizations and derive 
 their respective claims of authority 
 from entii-ely distinct soui'ces — the 
 former from election by the people, 
 the latter only from legislative desig- 
 nation, or executive appointment. 
 . . . The state board has no con- 
 stituency — it represents nobody. 
 Under the name ef equalization it 
 assumes to assess property and fix 
 values for the purposes of taxation 
 throughout the entire state without 
 having received a single vote at the 
 hands of the people for such an 
 office. . . . There being but one as- 
 sessment, which is the basis of both 
 local and state taxation, the process 
 of equalization, in the manner pre- 
 scribed by the law, cannot be applied 
 without a disturbance of local valu- 
 
 ation. Thus, if the assessor of San 
 Francisco is directed to add twenty 
 per centum to his valuation of the 
 real property in his district, then not 
 only does the valuation quoad that 
 species of property become that of 
 the board, and not of the assessor; 
 but the relative valuations of differ- 
 ent classes of property witliin the 
 same assessment district are neces- 
 sarily disturbed and altered, the prac- 
 tical result of which is that the 
 owners of real estate will pay a 
 higher tax by twenty per centum as 
 compared with the owners of per- 
 sonal property in the same district, 
 than they would have paid but for 
 the interference of the state board." 
 Savings and Loan Society u. Austin, 
 46 Oal. .510, 51-3. It must be borne 
 In mind that these objections, pre- 
 sented by Justice Wallace, go 
 only to the mode of appointment of 
 the board — not to the power of the 
 legislature to create it. In his judg- 
 ment, the members of the state 
 board ought to have been elected 
 from the state at large, to meet the 
 special requirements of the consti- 
 tution of California. Conceding the 
 board properly created and consti- 
 tuted, tliese objections lose all their 
 force. If one class of property be 
 assessed twenty per cent, too low, 
 ■without the office of an equalizing 
 board, with power lo add twenty per 
 cent, to it, the other property of the 
 district would be assessed in viola- 
 tion of the rule of uniformity and 
 equality, and would pay twenty per 
 cent, more than its proportion of 
 tlie taxes. 
 
EQUALIZATIOiT. 
 
 277 
 
 tion it has been held that the doctrine of "averages" may 
 be applied.^ 
 
 Sec. 153. Powers of Boards of Equalization. — Boards of 
 Equalization have only the powers conferred upon them by 
 the constitution or statute creating them.''^ J-'hey have no 
 power to add to an assessment property not included by 
 
 2 People V. Salomon, 46 111. 338. 
 
 ^The present constitution of tlie 
 state of California creates a state 
 board and county boards of equal- 
 ization, and defines tlieir powers in 
 the following language: "A state 
 board of equalization, consisting of 
 one member from eacb congressional 
 district in this state, shall be elected 
 by the qualified electors of their re- 
 spective districts, at the general elec- 
 tion to be held in the year 1879, whose 
 term of office, after those first elected, 
 shall be four years, whose duty it 
 shall be to equalize the valuation of 
 the taxable property of the several 
 counties in the state, for the pur- 
 poses of taxation. The controller 
 of state shall be ex officio a member 
 of the board. The boards of supei- 
 visors of the several counties of the 
 state shall constitute boards of equal- 
 ization for their respective counties, 
 whose duty it shall be to equalize 
 the valuation of the taxable property 
 in the county, for the purpose of 
 taxation; provided, such state and 
 county boards of equalization are 
 hereby authorized and empowered, 
 under such rules of notice as the 
 county boards may prescribe as to 
 the county assessments, and under 
 such rules of notice as the state 
 board may prescribe as to the action 
 of the state board, to increase or 
 lower the entire assessment roll, or 
 any assessment contained therein, 
 so as to equalize the assessment of 
 the property contained in said as- 
 sessment roll, and make the assess- 
 ment conform to the true value in 
 money of the property contained in 
 
 said roll." (§ 9, art. 18, Con. Cal.) 
 Under the powers delegated to the 
 state board by this section, the ques- 
 tion arose as to its power to increase 
 or lower a single or individual as- 
 sessment in a county roll. The 
 state board claimed this right, and 
 notified individual tax-payers to ap- 
 pear before them and show cause 
 why their assessments, as fixed by 
 the county assessor and county board 
 of equalization, should not be in- 
 creased. A writ of prohibition was 
 applied for, seeking to prohibit them 
 from exercising this power, and in 
 construing this section of the con- 
 stitution — ^four of the judges allowed 
 the writ, three dissenting. Wells 
 Fargo & Co. v. Board of Equaliza- 
 tion, 56 Cal. 195. Justice Koss, 
 speaking for the majority of the 
 court, said: "On the part of the 
 state board of equalization, it is 
 contended that, by virtue of this sec- 
 tion, they have the power to increase 
 or lower any and every individual 
 assessment in each and eveiy county 
 assessment roll within the limits of 
 the state; and that, too, irrespective 
 of any action on the part of the 
 county boards of equalization in re- 
 spect to the individual assessments 
 upon the rolls of their respective 
 counties. If the state board has 
 such power, it is unquestionably a 
 tremendous power. It can summon 
 to the city of Sacramento, each and 
 every taxable citizen of the state, to 
 show cause why his individual as- 
 sessment upon the assessment roll 
 of his county should not be increased. 
 , . . . That such a power might 
 
278 
 
 THE LAW OF ASSESSMENTS. 
 
 the assessor, unless specially so authorized by tlie law creat- 
 ing them, as this would be to make an assessment, and not 
 
 readily lead to great abuses does not 
 admit of doubt. Such considera- 
 tions, however, afford no reason for 
 denying the power, if it does exist. 
 They should only make us more 
 cautious in considering the question 
 which recurs, and is — What is the 
 true and fair construction of the 
 provision already quoted ? Its 
 meaning when ascertained we are 
 bound to give effect to, whatever 
 the consequences. In the first 
 place, the section in question pro- 
 vides for a state board of equaliza- 
 tion, and also for county boards of 
 equalization. They are all to be 
 boai'ds of equalization. To equal- 
 ize, is to make equal; to cause to 
 correspond, to be like in amount or 
 degree as compared with something. 
 The meaning of the term is impor- 
 tant to be borne in mind. Now, 
 looking at the provision of the con- 
 stitution upon the subject, we find 
 that the duties of tlie state board are 
 declared to be, ' to equalize the val- 
 uation of the taxable property of the 
 several counties in tlie state for the 
 purposes of taxation ' ; and tlie du- 
 ties of the county boards are de- 
 clared to be, ' to equalize the 
 valuation of the taxable property 
 in the county for the purposes of 
 taxation.' Then follows the pro- 
 viso, the ambiguity of which must 
 be sufficiently apparent to eveiyone. 
 . . . Reading the proviso as it is 
 claimed on behalf of tlie state board, 
 it should be read, that board is au- 
 thorized and empowered ' to increase 
 or lower the entire assessment roll, 
 or any assessment contained therein '; 
 and exactly tlie same power is con- 
 ferred on the county boards in re- 
 spect to the rolls of their respective 
 counties. ' For many reasons, it Is 
 manifest the proviso should not be 
 
 so read. To do so would not only 
 lead to the most glaring absurdities 
 and serious conflicts between the re- 
 spective boards, but would make the 
 proviso inconsistent with the body of 
 the section, and contrary to the fun- 
 damental idea of equalization. To 
 illustrate : The county boards of the 
 respective counties are, in the body 
 of the section, given the power ' to 
 equalize the valuation of the taxable 
 property in the county ' ; that is to 
 say, to compare the individual as- 
 sessments, upon the assessment roll, 
 one witli another, and make them 
 eqnal. But how can a county board, 
 upon the theory of equalization, in- 
 crease or lower the entire assessment 
 roll ? It is not pretended that the 
 county boards are given any power 
 outside of the limits of their respec- 
 tive counties, and it is obvious they 
 have none. No county board can 
 look to the assessment roll of any 
 other county than its own. It can 
 therefore have nothing with which 
 to compare tlie assessment roll of 
 its own county as a whole ; and yet 
 the very idea of equalization of ne- 
 cessity pre-supposes something with 
 which to compare the thing to be 
 equalized. The construction con- 
 tended for on the part of the state 
 board would compel us to hold, not 
 only that the state board has the 
 same power as the respective county 
 boards to increase or lower any indi- 
 vidual assessment in an assessment 
 roll, but that the county boards have 
 the like power with the state board 
 to increase or lower the entire as- 
 sessment roll of their respective 
 counties, and that too without any 
 power of comparing the roll with 
 anything. ... On the other hand, by 
 reading the proviso distributively — ■ 
 reddendo sinr/ula singulis — the whola 
 
EQUALIZATION. 
 
 279 
 
 the act of eqimlizing one already made.^ Their action is 
 usually confined to the assessment roll as presented by 
 assessing officers, and consists in hearing and determining 
 applications to strike from individual assessments property 
 claimed to have been improperly included and to lower or 
 raise valuations alleged to have been too high or too low. 
 They are sometimes clothed with power, upon their own 
 motion and without a hearing to increase the valuation of 
 all of a class, or of the entire property appearing upon the 
 roll ; or within a specified locality or district. Such extensive 
 and arbitrary powers however, are regarded with jealousy 
 and seldom conferred. Where application has been made 
 to reduce an assessment and also complaint has been made 
 that the assessment is too low and the Board acts on the ap- 
 plication, to reduce and denies the application, its powers 
 are not exhausted and it may proceed to hear and deter- 
 mine the complaint made for the purpose of raising it.^ 
 
 system provided for the equalization 
 of taxes is symmetrical and harmo- 
 nious, and accords with that mani- 
 fest intent of local government which 
 permeates almost every part of the 
 constitution." And the opinion 
 held that the state board had the 
 power only to equalize the assess- 
 ment rolls of the various counties, 
 " by comparing the assessment roll 
 of each county with the roll of each 
 and all the others, and thus make 
 the assessment conform to the true 
 value in money of the property con- 
 tained in the respective rolls, and 
 conferring on the local boards — the 
 county boards — the power only to 
 increase or lower the individual as- 
 sessments upon the roll of their re- 
 spective counties, and thus make 
 them equal with each other, and 
 equivalent to the value in money of 
 the property assessed." Justice 
 Thobntost wrote a dissenting opin- 
 ion, wherein he maintained that the 
 section conferred the power on the 
 state board to equalize by raising or 
 lowering individual assessments in 
 
 any county roll, but held, that such 
 action when had, must be had in the 
 county where the property was situ- 
 ated. This position was taken doubt- 
 less in view of the language contained 
 in the 10th section of the same arti- 
 cle: " All property, except as here- 
 inafter in this section provided, shall 
 be assessed in the county, city, city 
 and county, town, township, or dis- 
 trict in which it is situated, in the 
 manner prescribed by law." Jus- 
 tice Thobntoit fui'ther expressed 
 the opinion, " that the state board 
 lias no power to add any property to 
 the roll, but their power is limited to 
 the property on the roll, so far, at 
 least, as the power to act on an indi- 
 vidual assessment is concerned." 
 This power (to add property not on 
 the roll), is not claimed in the ma- 
 jority opinion. Id. p. 205, 6. 
 
 2 Chamberlain v. Cleveland, 34 
 Ohio St. 551. 
 
 2" "The fact that the board re- 
 fused to reduce the valuation, on the 
 application of the railroad company, 
 is in no sense an adjudication that it 
 
280 
 
 THE LAW OF ASSESSMENTS. 
 
 It is doubtful whether the doctrine of res adjudicata 
 applies to these proceedings.^" Where a state board is 
 empowered to equalize the assessment rolls of the various 
 counties "by adding to or deducting from the entire as- 
 sessment roll " — and a portion of the assessments of each 
 county consists of money and solvent debts or credits assess- 
 ed at full value — dollar for dollar — is it proper to " add to 
 or deduct from such assessments ? " Common justice wouhl 
 seem to require that no addition to or deduction from such 
 assessments should be made.* The same rules apply to 
 
 ought not to be raised. If it be ad- 
 mitted that on tliat application tlie 
 board had the power to raise the val- 
 uation, instead of reducing it, this 
 would lend no support to the propo- 
 sition that the board could not after- 
 wards entertain an application to 
 raise it. The proceeding would in- 
 clude no element of res adjudicata; 
 and if it did, we are not prepared to 
 say that a board of equalization is 
 necessarily limited to one applica- 
 tion, eitlier to reduce or raise tlie 
 valuation. C. P. E. K. Co. t. Placer 
 Co., 46 Cal. 671. 
 
 'This question has been before 
 the Supreme Court of California. 
 The powers of the state board liave 
 already been considered in this sec- 
 tion. In the exercise of its powers 
 tlie state board ordered that " eight 
 per centum, amounting to seventeen 
 million, seven hundred and sixty-five 
 thousand, six hundred and twenty- 
 five dollars," be added to the assess- 
 ment roll of the city and county of 
 San Francisco. The auditor, refus- 
 iiig to obey the order, a writ of maii- 
 damus was sued out to compel obe- 
 dience. It was objected to the order 
 that it required the auditor to add 
 to each dollar of assessments of 
 money which was assessed dollar for 
 dollar — eight cents — ^making tlie val- 
 uation of one hundred dollars of 
 money assessment so assessed — one 
 hundred and eiglit dollars. On this 
 
 point the court say: "We take no- 
 tice, as a matter of law, that a dol- 
 lar in money cannot be assessed at 
 more than a dollar, and that to 
 assess a dollar in money at more 
 than a dollar cannot make it con- 
 form to its true value in money. 
 When money is assessed at its nomi- 
 nal value, it conforms to its true 
 value, and from the very nature of 
 tlie case, the state board cannot 
 change the assessment, without 
 making it cease to conform to its 
 true value in money. . . . Money is 
 ' property ' subject to taxation (Con- 
 stitution, art. XII. § 11). But it is 
 property, the legally declared value 
 of which is the standard by wliicli 
 all other property is to be estimated 
 and assessed. . . . The section of 
 the constitution authorizes the state 
 board of equalization ' to increase 
 or lower the entire assessment roll. 
 But to what standard ? So as to 
 equalize it, and make the assessment 
 conform to the (true) value in money 
 of the property contained in the roll. 
 They have no power under the con- 
 stitution to adopt any other stand- 
 ard. . . . The order of the board is 
 to be read as requiring the auditor 
 to add eight per centum to the as- 
 sessed valuation of all ' property,' 
 except Tnoney already assessed at its 
 true and only legal value. The por- 
 tion of the order of the state board 
 which reads, ' amounting to the sum 
 
EQUALIZATION. 
 
 281 
 
 Boards of Ec[ua]ization, as to the act of the majority as, in 
 other boards of similar character. The act of the majority, 
 
 of seventeen million, seven hundred 
 and sixty-five thousand and twenty- 
 five dollars,' is mere surplusage, 
 which does not affect the validity of 
 the order." But on the other 
 branch of the question — the assess- 
 ment of debts secured by mortgage, 
 and of solvent debts and credits, the 
 court held an opposite view, and 
 that, notwithstanding it might ap- 
 pear that such debts liad been as- 
 sessed at their nominal or face value 
 in money, still they would be subject 
 to the increased valuation of the 
 added eight per centum. After 
 noticing tlie claim that such assess- 
 ments ought to stand upon the same 
 footing as assessments for money, 
 and that the court cannot say as 
 matter of law that these were not 
 undervalued, the following reason- 
 ing is used to express the view taken : 
 "The credits in one man's hands 
 maybe of a 'true value in money' 
 greater than those in the hands of 
 another; one man's note is worth 
 more than another ; the circum- 
 stance that, in tlie latter case, the 
 promise is in writing, does not nec- 
 essarily make the specific sum men- 
 tioned in the writing the true 
 value of the chose. So, a high rate 
 of interest, and a first class security 
 may make a mortgage wortli more 
 than the sum named in the instru- 
 ment. And as such may be the case 
 in a single instance we cannot say, 
 as matter of law (whatever may be 
 our individual opinions as to the 
 probability of the fact), that it is not 
 true of every debt secured by mort- 
 gage or deed of trust. Whatever 
 injustice may follow from an arbi- 
 trary increase of all assessments to 
 which the language of the constitu- 
 tion applies, since men already as- 
 sessed to the full value of their prop- 
 
 erty may have imposed upon them 
 an additional burden — such an ob- 
 jection, if it be made, is an objection 
 to the system ; and with the policy 
 or wisdom of a provision of the con- 
 stitution we have nothing to do." 
 People V. Dunn, 59 Cal. 320. This 
 question came before the same court 
 in a subsequent case, where an as- 
 sessment had been made of a balance 
 due on a mortgage amounting to ten 
 thousand dollars, and tlie assessment 
 valuation had been made at ten thou- 
 sand dollars. The state board of 
 equalization had, in the exercise of 
 their powers of equalization, in- 
 creased the entire assessment of the 
 county wherein this assessment was 
 made fifteen per centum. Practi- 
 cally this raised the assessment of 
 this mortgage debt from ten thou- 
 sand dollars to eleven thousand five 
 hundred dollars. The court in pass- 
 ing again on the question, said: 
 " The questions involved and ar- 
 gued in this case were disposed of 
 in the People v. Dunn, 59 Cal. .328. 
 With the conclusion reached in that 
 case we are satisfied, and do not wish 
 to change it." Justice Eoss, who 
 had concurred in the case of People 
 V. Dunn, dissented. Having referred 
 to the fact that under the new con- 
 stitution of California a mortgage 
 debt is treated as an interest in the 
 land, he said: "It is manifest that 
 this cannot be more than the amount 
 of the mortgage, while it may be 
 less — less, for example, where the 
 value of the property mortgaged has 
 decreased to such an extent as to be 
 less than the amount of the mort- 
 gage. It seems to me therefore, that 
 where, as in the case before us, the 
 full amount duo upon a mortgage 
 has been assessed to the holder 
 thereof, the order of the state board 
 
282 
 
 THE LA-W OF ASSESSMEXTS. 
 
 in the absence of statutorj' regulation, would be the act of 
 the boards ; and a quorum could transact the business.^ 
 
 Sec. 154. Boards of Equalization generally must notify — 
 before action taken. — As a general rule, county or district 
 boards of equalization cannot act upon an individual assess- 
 ment without notice to the person to be afPected, nor can 
 they add other property not included iu the original assess- 
 ment, unless specially authorized by statute to do so.^ 
 
 Increasing the assessment roll of the 
 comity can no more apply to such 
 an assessment than it can to the 
 assessment of money already assessed 
 at its legal value." (The learned 
 judge stated that "subsequent ex- 
 amination and reflection" had con- 
 vinced him that on the point stated, 
 the previous decision was wrong.) 
 Schroeder ». Grady, 5 Pac. Kep. 81, 
 (Cal.) The injustice of the working 
 of a rule of law that imposes upon 
 a tax-payer fifteen per cent, more 
 than his property can, under any 
 circumstances, yield Iiim, is too ap- 
 parent for argument. It would seem 
 that the reasoning, in the dissenting 
 opinion of Justice Ross, as to the 
 true meaning of the provision of the 
 constitutional requirement, is unan- 
 swerable. The provision of the con- 
 stitution, so far as it relates to the 
 question of the taxation of debts 
 secured by mortgage, is in these 
 words: "A mortgage, deed of trust, 
 contract, or other obligation, by 
 which a debt is secured, shall, for 
 the purposes of assessment and tax- 
 ation, be deemed and treated as an 
 interest iu the property affected 
 thereby." 
 
 ^'■Acts of a majority. Where a 
 body or board of officers is consti- 
 tuted by law to perform a trust for 
 the public, or to execute a power or 
 perform a duty prescribed by law, it 
 is not necessary that all should con- 
 cur in the act done. The act of the 
 majority is the act of the body. And 
 
 where all have due notice of the 
 time and place of meeting, in the 
 manner prescribed by law, if so pre- 
 scribed, or by the rules and regula- 
 tions of the body itself, if there be 
 any, otherwise if reasonable notice 
 is given, and no practice or unfair 
 means is used to prevent all from at- 
 tending and participating in the pro- 
 ceeding, it is no objection that all 
 the members do not attend, if there 
 be a quorum. Williams v. School 
 District, 21 Pick. 82. In Wisconsin 
 the rule of the statute is, that " all 
 words purporting to give authority 
 to three or more public officers or 
 other persons, shall be construed as 
 giving such authority to a majority 
 of such officers or other persons, un- 
 less it shall otherwise be expressly 
 declared in the law giving the au- 
 thority." Marshall v. Benson, 4 N. 
 W. Rep. 387. (Wis.) 
 
 1 Under a statute which author- 
 ized the board of equalization " to 
 determine all complaints made in re- 
 gard to the assessed value of any 
 property, and may change and cor- 
 rect any valuation, either by adding 
 thereto or deducting therefrom, if 
 they deem the sum fixed in the as- 
 sessment roll too small or too great, 
 whether said sum was fixed by the 
 owner or the assessor," the board of 
 equalization, without any notice 
 to the owner, except the general 
 notice of the meeting of the 
 board, raised an assessment, and 
 an injunction against the col- 
 
EQUALIZATION. 
 
 283 
 
 Where the constitution expresses the powers of a state 
 or county board, there can be no addition made thereto by 
 statute.^' Under a power to equalize, in the absence of 
 express authority, the county or municipal board cannot 
 raise the valuation of the entire assessment roll, irrespective 
 of the actual value of the property, without notice to each 
 owner.* It has been held, however, in some states, that 
 notice is not necessary where the law fixes the time of the 
 
 lector of the tax was sustained. 
 In passing upon the question, the 
 coui't said: "We are not disposed 
 to hold these tribunals to any 
 degree of strictness of procedure; 
 but any degree of strictness, proba- 
 bly, would be better than to give 
 such arbitrary power to a board as 
 would authorize it, without notice or 
 evidence, or opportunity to the tax- 
 payer to be heard, to increase his 
 taxes Indefinitely, without any right 
 of appeal. The case In 20 Ohio 172, 
 seems to be against this view, but 
 the ruling of the court on this point 
 was not necessary to the decision of 
 the case, and the decision was influ- 
 enced by other statutory provisions 
 than the one which seems analogous 
 to that in our act. The act of Ohio, 
 too, appointed a single day as the 
 time of the meeting of the board." 
 The words of the statute, the court 
 held, seem to require a complaint, or 
 some proceeding analagous to this; 
 at least that there is to be some- 
 thing, however Informal, In the na- 
 ture of a controversy or contest, 
 or in the nature of a judicial 
 inquiry. Patten v. Green, 13 Cal. 
 329. 
 
 Adding other property. 
 
 In construing a statute whicli did 
 not expressly authorize the making 
 of an assessment by the board of 
 equalization, the Supreme Court of 
 California used the following lan- 
 guage: "It is claimed on the part 
 of the plaintiff that the board of 
 
 equalization had ' the right to add 
 other property to the assessment 
 list, as well as to increase or dimin- 
 ish the assessed valuation fixed upon 
 the property by the assessor in the 
 original assessment roll.' A sufl3- 
 cient answer to this is, that the 
 statute does not warrant any such 
 conclusion, and no intendment is to 
 be made in support of the acts of 
 officers of inferior or limited juris- 
 dictions, where it appears that such 
 acts were not authorized. Such 
 acts are in the nature of things 
 coram non judice, and void, and the 
 party who is sought to be affected by 
 them to his injury, is at liberty to re- 
 sist their execution when attempted 
 to be enforced in an action at law or 
 otherwise." People v. Eeynolds, 28 
 Cal. 112. 
 
 2 Hamilton v. Dempsey, 20 Ohio 
 172. 
 
 ' In Illinois boards of equalization 
 are clothed with power to make the 
 assessment of certain classes of prop- 
 erty only, the assessment of other 
 property devolving exclusively upon 
 the assessors. Porter v. Kockford, 
 76 111. 561. In Nebraska the county 
 board of equalization may add to or 
 take from the entire assessment of 
 any district without notice to the in- 
 dividuals assessed, but that power 
 results from special statutory pro- 
 visions. Dundy v. Kichardson Co., 
 8 Neb. 508. 
 
 *The city of East Portland was 
 authorized, as part of Its taxing 
 
284 
 
 THE LAW OF ASSESSMENTS. 
 
 meeting of the board and prescribes its duties. Under 
 sucli circumstances all persons are bound to take notice, 
 and no notice to the individual is required as a condition 
 precedent to raising his assessment.^ ^^ When a state 
 
 power, to obtain a certified copy of 
 the last preceding assessment roll 
 made by the county assessor of per- 
 sons and property within the city. 
 The powers of the city council, after 
 obtaining the roll, was expressed in 
 the following language : " Any per- 
 son feeling himself aggrieved by such 
 assessment, either in valuation or 
 listing of the property, may apply 
 in writing to the council to have 
 such assessment revised, and if the 
 council deem the same erroneous, 
 they must correct it." Where the 
 council added twenty per cent, to 
 the valuation of the assessment roll 
 in a suit to enjoin the collection of 
 the tax the couj't said: " The effect 
 of this provision is to make the as- 
 sessment roll for Multnomah County 
 of the taxable property within the 
 limits of the city, after the same has 
 been taken or copied from such as- 
 sessment roll by the recorder, and 
 duly certified to and delivered by 
 him to the committee on ways and 
 means, the assessment roll of the 
 taxable property of the city of East 
 Portland. With the making of the 
 assessment the common council nor 
 its committee have nothing to do. 
 Their power in the premises only 
 begins after the assessment is made, 
 in the manner prescribed, and is 
 properly certified to and delivered 
 to them. With this roll as the basis 
 for its action, the business of the 
 council is to equalize the assess- 
 ments and to levy a tax to meet 
 the expenses of the city, not to ex- 
 ceed the amount limited by the char- 
 ter. . . . The power is conferred, 
 and the duty is imposed upon the 
 council, not to make or to raise the 
 assessment of the taxable property 
 
 of the city, but to equalize the as- 
 sessments as between those liable to 
 taxation under the jurisdiction, so 
 that the burdens of taxation may be 
 distributed equally and impartially." 
 Ualton V. East Portland, 5 West 
 Coast K. 24. (Or.) 
 
 6 Adsit V. Leib, 76 111. 201. 
 
 ^» The doctrine of personal notice 
 was maintained in Michigan, under 
 a statute providing for public notice 
 "by publishing a notice thereof" 
 {of the meeting of the board of 
 equalization) "in the official news- 
 paper published in the city, and also 
 by posting the same in three public 
 places in each ward of said city," 
 and where no special provision in 
 the statute was made requiring a 
 personal notice. In the particular 
 case the original assessment was 
 $6,000. The sessions of the boaid 
 were limited to ten days. On the 
 last day of the session, on motion 
 and without personal notice to the 
 party assessed, the amount of tlie 
 assessment was raised to $23,000. 
 The majority of the court held the 
 action to be without authority. " As 
 the change when made is final, there 
 must be an opportunity of some kind 
 to complain. We do not think that 
 this opportunity was given. It can- 
 not be expected that the entire body 
 of tax-payers can attend the sessions 
 of this board constantly, as they 
 would have to do, in order to be 
 sure they were not subjected to in- 
 creased burdens. While no great 
 foi'mality is possible in providing for 
 doing justice in such cases, some 
 reasonable notice should certainly oe 
 given before adding to an assess- 
 ment." In the dissenting opinion 
 of C. J. Mabston, the better rear 
 
EQUALIZATION. 
 
 285 
 
 board of equalization acts upon the assessment rolls of 
 counties, or makes and equalizes assessments or corpora- 
 
 soning is given in the construction 
 of this statute. The following is 
 his language: "I concede the 
 correctness of the doctrine that no 
 changes can be made by the board 
 without notice to the person against 
 whose interest such change is to be 
 made, and an opportunity given him 
 to show cause why no such change 
 should be made, but in my opinion 
 the general notice given by the clerk 
 is all that is necessary, and that no 
 formal or special notice beyond this 
 is required. Any other view it seems 
 to me would but defeat the object of 
 the statute, and prevent any increase 
 in the valuation of property upon 
 the roll, as the owner is not at all 
 likely to appear and ask for such in- 
 crease to be made. ... If a special 
 notice is required, while it may be 
 informal, yet by analogy it must be 
 given the owner or person interested 
 in the property, and a reasonable 
 time and opportunity thereafter 
 must be given liiiu to appear and 
 make his showing. The time within 
 which the board jnust act and con- 
 clude its labors is limited to ten days, 
 and if towards the end of the ses- 
 sion, or indeed at any time, special 
 notice must be given an owner, 
 owing to his absence from the city, 
 either intentionally or otherwise, or if 
 from some other cause, he cannot be 
 notified, then the board would have 
 no power to proceed further in the 
 premises. We cannot assume that 
 such cases may not arise, or that the 
 board should be required to cause 
 personal notice to be given, while no 
 method is pointed out or means 
 given the board under or by which 
 such notice may be given. I can 
 see but little, if any, object in giving 
 the general notice required by the 
 charter if, in addition thereto, spe- 
 
 cial notice must also be given in 
 cases like the present. Under the 
 general notice parties must attend 
 the meetings of the board as they 
 would the sessions of a court, until 
 their assessment is passed upon, and 
 when once this is done, no change 
 could afterwards be made without 
 special notice. Within the case of 
 Griswold v. Bay City, this may be 
 an inconvenience to the tax-payer, 
 but it is one for the legislature to 
 remedy. It may be said that the 
 board, just before concluding its 
 session, may pass upon a large num- 
 ber of cases, and thus afford no op- 
 portunity to object or show cause. 
 This we cannot assume. We must 
 presume that the board will act in a 
 proper and reasonable manner, and 
 should it appear in a given case that 
 such has not been the fact, the law 
 would afford a remedy." Avery v. 
 City of East Saginaw, 7 N". W. Eep. 
 178. (Mich.) In Kansas, the statute 
 has been changed so as not to re- 
 quire personal notice to raise the- 
 valuation of either real or personal 
 propei'ty in an individual assessment. 
 In a recent case in that state the fol- 
 lowing language was used, which in- 
 dicates the law to be as stated: '• In 
 1876 a radical change was made in 
 the tax law. By sec. 74 of the (ax 
 law of that year, bei,ng chapter 107, 
 Comp. Laws 1879, the board of 
 equalization was, iu terms, given 
 jurisdiction over the equalization of 
 the valuation of personal properly 
 to the same degree as over real 
 XJroperty. The time of meeting be- 
 ing fixed, and publication of notice 
 of the time of meeting being re- 
 quired, the same argument which, 
 prior to 1876, sustained the power of 
 the board to raise the valuation of 
 real estate without personal notice 
 
286 THK -LAW OF ASSESSMENTS. 
 
 tions at a time and place fixed by law, no notice is neces- 
 sary.' 
 
 Sec. 154a. Opportunity to be heard must be given to con- 
 stitute a Valid Tax— Due Process of Law. — It is an established 
 principle of law, that no man's property can be taken from 
 him without his consent, except by due process of law ; 
 and when a duty or burden is sought to be imposed upon 
 him or his property, he must have an opportunity to be heard . 
 And in case of a tax he must have notice and opportunity 
 to be heard both against the tax and the amount sought to 
 be charged against him or his propertj'. To levy and assess 
 ii tax against a person without opportunity to be heard, and 
 for non-payment thereof to sell and take from him liis 
 property, would be to talte a man's property from him with- 
 out due process of law. Tlie law itself may provide the 
 opportunit}' by fixing the time within which the levy or 
 assessment must be made, and fixing the time within which 
 a board of equalization must meet and hear and determine 
 all objections to the assessment. But if tlie law makes no 
 provisions for a hearing of objections to the assessment, it 
 is within the rule wliich prohibits the taking of property 
 from the owner witliout due process of law, and the tax can- 
 not be enforced. It would come directly in conflict witli 
 the express provisions of the Fourteenth Amendment to 
 the Constitution of the U. S. which says "Nor shall any 
 state deprive any person of life, libert3% or property with- 
 out due process of law." ^ If the time for the meeting and 
 
 to the owner, sustains now like ac- board has its time of sitting fixed by 
 tion as to personal property." law. Its sessions are not secret, 
 •i Under the revenue system of Ko obstruction exists to the appear- 
 Illinois, the state board of equaliza- ance of any one before it to assert a 
 tion assessed and equalized assess- right or redress a wrong; and in the 
 iiients of all railroad corporations business of assessing taxes this is all 
 owning or operating railroads that can be reasonably asked." State 
 through or in two or more coun- Eailroad Tax Cases, 92 U. S. R. 609. 
 ties in the state. Their time and ^ The Political Code of California 
 place of meeting was fixed by law. in 1880 (§ 3664) provided for the as- 
 In answer to the objection of a want sessment by the state board of equal- 
 of notice of the action of the board of ization of all railroads operated in 
 equalization in increasing the values more than one county, but no pro- 
 furnished by the corporations to the vision was made for notice to the 
 state auditor, the court said: "This corporation assessed, nor was any 
 
EQUALIZATION. 
 
 287 
 
 session of the Board of Equalization is fixed by law, and all 
 persons feeling aggrieved by an assessment are required to 
 
 provision made by wliich tlie corpo- 
 ration could appear and be heard in 
 opposition, In any respect, to the 
 assessment. Assessments of other 
 property were required to be made in 
 tlie county where situated, and a 
 board of equalization was provided 
 for, to equalize each individual as- 
 sessment, and no, change could be 
 made in an assessment by which it 
 was increased, without notice to the 
 person to be affected. In all other 
 assessments, the owner of land 
 which was mortgaged to secure a 
 debt, had the right to require the 
 amount so secured to be deducted 
 from the value of the land and to 
 be assessed only on the balance. In 
 the case of San Mateo County 
 against the Southern Pacific Railroad 
 Co. (see post, n. 2 § 180, n. 1 § 188, 
 n. 1 § 189) an assessment having been 
 made under this provision of the 
 Code and without the deduction on 
 account of mortgage indebtedness — 
 after holding the assessment invalid 
 for that cause, the court proceeded 
 to say: "If there were no other 
 objection to the assessment we 
 might perhaps order judgment for 
 the amount of taxes due upon the 
 valuation of the property, after de- 
 ducting therefrom the amount of 
 the mortgage ; but there is another 
 objection of equal significance, 
 which goes to the validity of the 
 whole assessment. No opportunity 
 was afforded to the defendant to be 
 heard respecting it before the state 
 board of eqtialization. It was made 
 by the board under the tenth section 
 of Article XIII. of the Constitution 
 which declares that 'the franchise, 
 roadway, roadbed, rails and rolling 
 stock of all railioads operated in 
 more than one county in this state, 
 shall be assessed by the state board 
 
 of equalization at their actual value, 
 and the same shall be apportioned 
 to the counties, cities and counties, 
 cities, towns, townships and dis- 
 tricts in which such railroads are 
 located, in proportion to the number 
 of miles of railway laid in such 
 counties,' &c. . . . Ample security 
 is thus afforded to individuals against 
 erroneous and arbitrary assessments ; 
 but the assessment of the property 
 mentioned of railroads operated in 
 more than one county, is placed en- 
 tirely with the state board. These 
 railroad corporations to be assessed 
 by the state board of equalization, 
 were required to furnish a statement 
 of their property to be assessed by 
 the state board, and it was contended 
 that this was a sufficient notice to 
 the corporation, but in reply there- 
 to the court held that this require- 
 ment was " not equivalent to a 
 notice of the assessment made and 
 an opportunity to be heard there- 
 on." Referring further to this 
 statement, the court hold it to be 
 but "a preliminary proceeding, and 
 until the assessment the corporation 
 cannot know whether it will have 
 good cause of complaint. No hear- 
 ing upon the statement presented is 
 allowed, and when the assessment 
 is made, the matter is closed; no op- 
 portunity to correct any errors com- 
 mitted is provided. The presenta- 
 tion of the statement can no more, 
 supersede the necessity of allowing 
 a subsequent hearing of the owners, 
 than the filing of a complaint in 
 court can dispense with the right of 
 the suitor and his contestant to be 
 there heard." Speaking as to the 
 necessity of notice in all cases of 
 assessments, the court further said : 
 " There is something repugnant to 
 all notinns of justice in the doctrine 
 
288 
 
 THE LA^W OF ASSESSMENTS. 
 
 attend at tlie time and place specified in the statute — tliat 
 may be a sufficient opportunitj' for a hearing of grievances, 
 and it might be sufficient, if the law so provided, to put each 
 tax-paj-er upon notice as to any change by increasing the 
 amount of an assessment.^ But where the law merely 
 fixes the time for the meeting of the board of equalization, 
 without notice to the person to be affected, the board are 
 not authorized to increase his assessment. 
 
 Sec. 155. TWhat should be stated in a complaint or notice. — 
 Where a complaint or notice is required, the facts consti- 
 tuting the cause for proceeding ought to be stated, so as to 
 
 that any body of men can be clothed 
 with the power of finally determin- 
 ing the value of another's property, 
 according to which it may be taxed, 
 without affording to him an oppor- 
 tunity of being heard respecting the 
 correctness of their action. . . . 
 It conflicts with the great principle 
 which lies at the foundation of all 
 just government that no one shall 
 be deprived of hislife, his liberty, or 
 his property, without an opportu- 
 nity of .being he.ird against the pro- 
 ceeding." San Mateo County v. 
 Southern P. II. Co., S Sawyer, 270- 
 
 '^ " Notice is absolutely essential to 
 the validity of the proceeding in any 
 case ; it may be given by personal 
 citation; and in some cases, it may 
 be given by statute; but given it 
 must be, in some form. If life and 
 liberty are involved, there must be 
 a regular course of judicial proceed- 
 ings; so also where title or posses- 
 sion of property is in contention. 
 But in the taking of property by 
 taxation, the proceeding is more 
 summary and stringent. The neces- 
 sities of revenue for the support of 
 government will not admit of the 
 delays attendant upon judicial pro- 
 ceedings in the courts of justice. 
 Tbe statute fixes the rate of taxa- 
 tion upon the value of the property. 
 
 and appoints officers to estimate and 
 appraise the value. Due process of 
 law in the proceeding is deemed to 
 be pursued when, after the assess- 
 ment is made by the assessing offi- 
 cers upon such information as they 
 may obtain, the owner is allowed a 
 reasonable opportunity, at a time and 
 place to be designated, to be heard 
 respecting the correctness of the 
 assessment,' and to show any errors 
 in the valuation committed by the 
 officers. Notice to him will be 
 deemed sufficient, if the time and 
 place of hearing be designated by 
 statute. But whatever the charac- 
 ter of the proceeding, whether ju- 
 dicial or administrative, smnmary 
 or protracted; and whether it takes 
 property directly, or creates a charge 
 or liability which may be the basis 
 of taking it, the law directing the 
 proceeding must provide for some 
 kind of notice, and offer to the 
 owner an opportunity to be heard, 
 or the proceeding will want the 
 essential ingredient of due process of 
 law. Nothing is more clearly estab- 
 lished by a weight of authority ab- 
 solutely overwhelming, than that 
 notice and opportunity to be heard 
 are indispensable to the validity of 
 the proceeding. Per Justice Field. 
 The Railroad Tax Case, 8 Sawyer, 
 274. 
 
EQTJALIZATIOlSr. 289 
 
 inform the person complained against, what facts he is re- 
 quired to meet. If the charge be that the assessment is 
 too low, it should appear what property is valued too low, 
 and if the charge be that property has been omitted, when 
 the board of equalization has authority to include omitted 
 property, the property charged to have been omitted ought 
 to be described with reasonable certainty.^ 
 
 Sec. 156. Where notice is required — necessary to give juris- 
 diction.— Where notice is required before an assessment can 
 be raised, notice is necessary in order to give jurisdiction. 
 Appearance before the board, on notice served after an 
 addition has been made without notice, is not a waiver of 
 notice.^ Where, in case of any change made by the asses- 
 sor, after receiving the tax-payer's list, notice to the party 
 assessed is required ; and also where " a court of revision " 
 is required to serve notice before raising an assessment, it 
 must appear, affirmatively, that notice was given as re- 
 quired.2 But if, upon informal notice, the party appear 
 and contest before the board the question of raising his 
 assessment, notwithstanding he may not have been formally 
 notified to appear, he cannot afterwards be heard to object 
 that he was not notified. His appearance before action 
 taken is a waiver of noticp.^ 
 
 ' Where the district attorney filed was assessed, the comijlaint would 
 
 a complaint against the entire assess- have amounted only to an allega- 
 
 ment roll in tiie following language: tion that the valuation of such par- 
 
 " He complains of the assessment eel of property was incorrect, witli- 
 
 set opposite to each name therein" out stating whether it was too low 
 
 (the assessment list), "and prays the or too high. People v. Flint, 39 
 
 board to hear evidence in each and Cal. 672. 
 
 every case, and every name on said ' People v. Goldtree, 44 Cal. .324. 
 
 assessment list, as to the value of ^ On this point, in the case of 
 
 the property therein assessed, and Tobey v. Wilson (43 U. C. Q. B.- 236), 
 
 to change the value of the property the court said : "These provisions, 
 
 therein assessed as to them may with regard to notice, are impera- 
 
 seem just, and that the valuation tive. Such notice is the foundation 
 
 may be reduced or raised as to them of the jurisdiction of the court, and 
 
 may seem just and equitable," it if these provisions have not been 
 
 was held that this was not a com- complied with, the court have no 
 
 plaint that the valuation in any authority to deal with the subject 
 
 case, or of any parcel of property matter of the complaint." 
 
 was too low; that even if it had s Hutchinson v. Oskaloosa, 2317. 
 
 specified any parcel of property, and W. Eep. 249 (Iowa), 
 the name of the person to whom it 
 
 19 
 
290 
 
 THE LAW OF ASSESSSIENTS. 
 
 Sec. 157. May add previous year's Uncollected Tax with- 
 out Notice — Order may be entered after Adjournment. — When 
 the statute requires uncollected taxes of the previous year 
 to be added to the next year's assessment, the board of 
 equalization may order an uncollected tax for an assess- 
 ment of the previous year, which, by oversight, had not 
 been reported to the tax collector, to be added without 
 notice to the tax-payer, and the order may be entered after 
 the adjournment of the board, when, by oversight, it was 
 not entered during the session.^ 
 
 Sec. 158. Boards act judicially— their action final. — When 
 a board of equalization acquires jurisdiction it acts judici- 
 
 1 The case of the Pacific R. K. Co. 
 V. County Clerk of Fraaklin Co. (57 
 Mo. 224) involved the following 
 facts : The Pacific Railroad Com- 
 pany had been assessed, for the year 
 1870, $7:38,000, by the assessor of 
 Franklin County, but through mis- 
 apprehension, or oversight, this as- 
 sessment was not placed upon the 
 tax book of 1870. The board of equal- 
 ization, in 1871, without notice to 
 the corporation during their session, 
 made the following order : 
 
 "It appearing to the satisfaction 
 of tiie board of equalization that the 
 Pacific R. E. Co., of Missouri, was 
 lawfully and regularly assessed by 
 the assessor of Franklin County for 
 the year 1870, and valued in the 
 aggregate sum of $738,000, and by 
 him duly certified to the clerk of 
 the county court of said County of 
 Franklin for the year 1870, and it 
 further appearing, to the satisfac- 
 tion of said board, that the said 
 clerk omitted to certify the same to 
 the collector for that year (1870) by 
 reason of misapprehension of the 
 law defining his duties in the pre- 
 mises, and that the taxes for the 
 year 1870 have not been paid — it is 
 therefore ordered and considered by 
 the board that the clerk of the 
 county court adjust the tax books 
 by placing upon the assessor's books 
 
 for 1871, and certifying to the col- 
 lector of Franklin County, on the 
 tax book for 1871, the said assess- 
 ment so omitted for the year 1870." 
 The clerk failed to enter the order 
 during the session, but entered it 
 after the adjournment of the board 
 of equalization, and thereafter en- 
 tered in the assessor's books this 
 omitted assessment in these' words: 
 " The Pacific R. R. Co. assessed, for 
 1873, $738,000." The corporation 
 applied for mandamus to compel the 
 clerk of the board to erase this as- 
 sessment. The court, refusing the 
 writ, said : " It is scarcely necessary 
 to observe that these objections, and 
 others of a similar character, are 
 purely technical. It is perfectly 
 manifest that the intent of the 
 legislatures, in their revenue laws, 
 has been to require the payment of 
 the taxes in each year, and to re- 
 quire assessors and collectors to 
 assess and collect the taxes which 
 have been omitted by accident or 
 mistake to be collected in preceding 
 years. The board of equalization 
 is authorized to correct and adjust 
 the tax books. It is objected that 
 the petitioner had no notice of the 
 action of the board, and that the 
 petitioner was as much entitled to 
 notice, where an assessment was 
 made de novo, as where au assess- 
 
EQUALIZATION. 
 
 291 
 
 ally upon the questions properly passed upon, and its de- 
 cision is final, unless an appeal is provided for.^ It is a 
 principle of law that the action of a board, officer, or 
 tribunal, having the right to exercise a discretion, or to 
 act upon the judgment of its members, will not be re- 
 viewed, especially when it represents a branch of the 
 political department of the government.' But if a board 
 exceeds its powers, its proceedings are subject to review, 
 like those of any other inferior court, tribunal, or officer.^ 
 
 Sec. 159. Failing or refusing to furnish list — equalization 
 denied. — A person or corporation failing, refusing, or 
 neglecting to furnish a list or statement of his or its taxable 
 
 ment by the assessor was raised. 
 The petitioner was fully aware that 
 no taxes had been paid in 1870, for, 
 if paid, the receipt for the same 
 would have settled the controversy. 
 The position that the board had no 
 power to correct the omissions of 
 the clerk . . . that the clerk of the 
 Board could not make up records of 
 the board after it had adjourned, 
 and that the oral order of the board 
 amounted to nothing, unless re- 
 corded at the- time, is untenable. 
 No one of these objections apply to 
 the merits of the case. The real 
 question is, whether this road was 
 assessed in 1870, and whether that 
 assessment was collected — and it is 
 conceded that it was not. It was 
 assessed, but, by accident or inad- 
 vertence, the assessment was not 
 reported to the collector, and by 
 reason of this omission the road 
 escaped taxation. But private citi- 
 zens have to pay taxes for the years 
 in which their assessments are 
 neglected to be collected, and the 
 same rule applies to corporations." 
 1 People V. Goldtree, 44 Cal. 325. 
 In Illinois the courts are authorized 
 to hear and determine, in a summary 
 way, without pleadings, all objec- 
 tions to assessments, and pronounce 
 judgments according as the facts may 
 be. Walsh ». People, 79 111. 521. In 
 
 a case where a board of assessors 
 was cited to show cause why they 
 did not make their assessments of 
 property at its actual cash value, in 
 disposing of the application the 
 court said, in regard to their power 
 in equalizing, that it would not as- 
 sume to review their action; that 
 their " duty in that regard is politi- 
 cal, and the power is exclusive." 
 People ex rel. v. Supervisors of Sani- 
 lac County, 3 N. W. Kep. 260 (Mich. ) 
 2 " In a certain sense they act ju- 
 dicially in weighing the evidence 
 brought before them, and are to as- 
 certain facts, correct errors, and ar- 
 rive at results, conformably to the 
 proceedings of a court of justice. 
 They have no more legal power to 
 decide against all the testimony in 
 respect to the value of property than 
 a court has to decide a cause against 
 all the evidence produced before it. 
 Where there is a conflict of evidence, 
 and the real facts are in dispute, the 
 decision of the board fixing the valu- 
 ation might well be held to be final. 
 But on the case presented by this 
 motion the board manifestly acted 
 in violation of law, and plainly ex- 
 ceeded their jurisdiction." Milwau- 
 kie Iron Co. v. Schubel, 29 Wis. 444: 
 (s. c. 9 Amer. R. 597.) See post, 
 §163. 
 
292 
 
 THE LA\r OF ASSESSMENTS. 
 
 property, wlien required to do so, is not entitled to be 
 Iieard before the board of equalization, on an application to 
 have his or its assessment reduced. And if a failure or 
 refusal to furnish a statement deprives the person failing or 
 refusing of a hearing, the board has no jurisdiction in sucli 
 a case, and any action reducing an assessment, made upon 
 a failure to furnish a statement, would be coram non judioe 
 and void. Where the statute requires the statement of a 
 corporation to be made by a particular officer or employee 
 of the corporation, it must appear by the statement itself 
 that it was made by the proper officer or person, and must 
 be subscribed by him.^ Where the statute requires, in 
 
 ^ The revenue laws of Nevada re- 
 quired such statement to be made 
 by the president, secretary, general 
 superintendent or managing agent 
 of corporations owning or operating 
 railroads tlirougli two or more coun- 
 ties of the state, or by some man- 
 aging agent within tlie county. A 
 statement was made reading in the 
 following language: " State of Ne- 
 vada, County of Washoe, ss. John 
 Corning, of the Central Tacific Rail- 
 road Company, being duly sworn, 
 says: that the annexed statement 
 contains a full, true, particular and 
 correct account of all the taxable 
 property, and its true valuation, be- 
 longing to or in the custody or under 
 the control of said railroad company 
 within the county of Washoe, state 
 of Nevada, and that the statement 
 here made as to the number of miles 
 of said railroad witliin the state of 
 Nevada, and the amount and value 
 of the rolling stock used in the state 
 of Nevada, is full, true and correct. 
 
 . Subscribed and sworn to 
 
 before me, this 17th day of August, 
 A. D. 1869. J. R. LOVBJOY, J. P., 
 Yerdi Township." The court held 
 that this statement failed to com- 
 ply with the requirements of the 
 statute because it does not show 
 that the person making it was by 
 the statute competent to make it; 
 
 that the facts should be made to ap- 
 pear affirmatively, and be part of the 
 matter sworn to; also because it was 
 not subBcriied. " Subscription is 
 required; why, is not for this court 
 to inquire; . . . and at all events 
 being required, it must be done, else 
 the statement does not conform to 
 the statute. . . . The statute is 
 pjain and simple in its requirements. 
 While it should not be so construed 
 as to entrap the unwary, on the other 
 hand its positive provisions cannot 
 be frittered away by judicial inter- 
 pretation. The company failed to 
 show the making of the statutory 
 statement. Failure to make such, is 
 a refusal under the statute. In such 
 case the board of equalization had 
 no jurisdiction of the case upon 
 complaint of undue assessment, and 
 no right to reduce; and in attempt- 
 ing so to do, exceeded its powers." 
 (State V. Washoe County, 5 Nev. 
 318.) A statute providing that a 
 person refusing to furnish a state- 
 ment of his property shall not be 
 heard before the board of equaliza- 
 tion, is not unconstitutional; and 
 where the statute requires the as- 
 sessor to note the refusal on the 
 assessment book, writing opposite a 
 name, "neglected to return state- 
 ment as required by see. 3629 Politi- 
 cal Code," this notation is sufficient 
 
EQTTALIZATION. 293 
 
 addition to furnisliiiig a sworn list, that the tax-payer shall 
 also " answer all proper inquiries in writing as to the 
 nature and situation of his propertj-, and, if required, sub- 
 scribe and make oath thereto " — a refusal to subscribe and 
 swear to such answers, forfeits the right to a hearing before 
 the board of equalization.^ 
 
 Sec. 160. "When furnishing List not necessary to entitle a 
 party to be heard.^Under the revenue laws of Nevada the 
 County Treasurer, as ex officio tax collector, is authorized 
 and required, between the third Monday of October and 
 December of each year to specially assess all persons and 
 propert}' for taxation in all cases where the county assessor 
 has neglected or omitted, from any cause, to make the as- 
 sessment on any person or property in the county. No 
 provision is made in the statute authorizing this special 
 assessment, for requiring a sworn or other statement; and 
 the statute provides that any person "feeling aggrieved 
 by any such assessment " may appear before the Board of 
 Commissioners and apply to have the assessment, " equalized, 
 modified or discharged," and the Board is empowered, in 
 general or special session, to determine the matter. Under 
 the general revenue law there is a provision, requiring a 
 statement, and providing as one of the penalties of failure 
 to comply, that the delinquent cannot be heard before the 
 Board of Equalization. A supplemental assessment being 
 made by the county treasurer, of a railroad company, after a 
 demand for a sworn statement and after refusal, the company 
 applied to the county commissioners to have the assessment 
 equalized. The Board refused to act on the application, on 
 the ground of the neglect and refusal to furnish a statement; 
 but it was held that in such cases the statute requiring a 
 statement did not apply, and the party assessed was entitled 
 to be heard. ^ 
 
 Sec. 161. "When Equalization not allowed — Tax-Payer 
 still has a Remedy against fraudulent Valuations. — But it 
 does not follow that if the tax-payer cannot be heard 
 
 to justify a refusal to hear an appli- " freedom v. County Commission- 
 cation for equalization, if not con- ers, 66 Me. 176. 
 tradicted. Orena v. Sherman, 61 i V. & T. R. Co. v. Commissioners 
 Cal. 101; {ante, § 4, n. 4, 5.) of Ormsby Co. 5 Nev. 345. 
 
294 THE LAW OP ASSESSMENTS. 
 
 before the board of equalization, that he is entirely with- 
 out remedy. He is entitled to have the honest, official 
 judgment of the assessor exercised in the estimate of 
 value placed upon his property even though he fail to fur- 
 nish the statement required. And if the assessor fraudu- 
 lently and arbitrarily, and contrary to his own judgment fixes 
 a value which is known to him at the time to be in excess of 
 the true value, the tax-payer ma}' enjoin the enforcement of 
 such an assessment and Iiave the true value of the property 
 determined and established, upon offering to pay his taxes 
 01) such valuation.^ 
 
 Sec. 162. Boards of Equalization may be empoTwered to 
 make Assessments and also equalize same. — The general rule 
 already stated, that boards of equalization are not author- 
 ized to make an original assessment, nor add to or include 
 any property ijot included by the assessor, is one of public 
 policy only. It is within the province of the people in the 
 framing and adoption of their organic law, and, in the ab- 
 sence of constitutional restrictions, of the legislature, to 
 clothe boards of equalization with power to make original 
 assessments and to act as a board of equalization as to such 
 assessments, when made.^ In making assessments, boards 
 of equalization act as a board, and are not controlled in fix- 
 ing values, by the values stated in the sworn statements 
 furnished by persons or corporations.^ 
 
 Sec. 163. Knowledge of Values — ho-w acquired and applied. 
 — It is always within the province of boards of equalization 
 
 ^ State 1). Central Pacific K. Co., 7 equalize such assessments when 
 
 Nev. 101. made. Sec. 10, art. XIII. Con. Cal. ; 
 
 ^ The power to assess corporations, sec. 3665 P. C. Cal., Amendments 
 
 and particularly corporations operat- 1883, p. 65-68. 
 
 ing railroads, in some of the states, ^i-jjui; the constitution imposes 
 lias been conferred by statute upon the duty of assessing the property 
 the state board of equahzation. of the corporations upon the state 
 State Kailroad Tax Cases, 92 IT. S. board of equalization. The pro- 
 578. Also, by constitutional pro- vision of the Code ought not to be 
 vision in California, it is made the construed, and cannot fairly be con- 
 duty of the state board of equaiiza- strued to make each railroad corpo- 
 tion created by the constitution to ration the assessor of its own prop- 
 assess all railroads extending into erty, in case it chooses to file a state- 
 or through two or more counties, ment. Doubtless the board will 
 and tlie same board is by statute au- place much reliance upon these 
 thorized to hear objections, and statements, and will start with a pre- 
 
EQUALIZATION. 295 
 
 to hear evidence touching valuations of property; but they 
 are not required to act on the knowledge acquired by such 
 evidence. They may, notwithstanding the evidence pro- 
 duced, act on their knowledge of values. They are no more 
 bound by the evidence presented to them than is the asses- 
 sor by the values fixed in the list or schedule furnished to 
 him by the tax-payer as a preliminary to the assessment.^ 
 But it must not be understood that boards of equalization, 
 any more than assessors, have absolute power over valuations. 
 They cannot arbitrarily fix values beyond the actual value.'^ 
 
 sumption that they are correct, but tual value.' " S. F. & K. P. R. K. 
 
 if satisfied that property has been Co. v. State Board, 60 Cal. 31. 
 
 omitted from them by mistake, or ^ St. Louis V. & F. R. R. Co. v. 
 
 that the valuation in them contained Surrell, 88 111. 536. 
 
 is too low, must perform its duty of ^ jiilwaukie Iron Co. v. Schubel, 
 
 assessing all the property at its ' ac- 29 Wis. 444, (S. C. 9 Amer. R. 591). 
 
296 THE LAW OF ASSESSMENTS. 
 
 CHAPTER XIV. 
 
 EXEMPTION PROM TAXATION. 
 
 Sec. 165. Character of Property which is exempt. — There 
 is certain property in all the states and territories which is 
 exempt from taxation. The following may be classed as 
 exempted in all states and territories; 1. Property belong- 
 ing to the government of the United States— including all 
 lands belonging to what is usually denominated the public 
 domain, while remaining unsold ; 2. Property belonging to 
 a state, and to a county or municipal government, and used 
 for public purposes ; 3. Property belonging to a school dis- 
 trict organized and existing under the laws of the state, 
 used for educational purposes; and 4. Property acquired 
 and used for public purposes under authority of law. Under 
 the term " property belonging to the state " may be included 
 a capitol, state prison, state asylum and other property 
 owned and used by the state for public purposes — but not 
 property used for private purposes. The property of a 
 county or municipal government, which would fall within 
 the exemption, consists of a court house, city hall, county 
 and city jails or prisons, asylums, poor farms, school houses 
 and other property used for public purposes, or for public 
 charities, whether it be real or personal propertj'. Exempted 
 property should not be included in an assessment.^ 
 
 Sec. 166. Character of property -which is exempt — Continued. 
 — In some states exemption from taxation is extended to 
 other classes of property, the most common being property 
 used for religious, charitable, benevolent, and educational 
 
 1 Where a portion of a school lot improvements, the owner of the 
 
 was leased from the board of educa- building was liable to assessment 
 
 tion, and a building, with brick foun- therefor, notwithstanding the land 
 
 dation firmly attached to the soil, was exempt. City and County of 
 
 erected thereon; it was held that, San Francisco v. McGinn, 7 Pac. 
 
 inasmuch as the, statute had made a Kep. 187 (Cal.). 
 distinction between real estate and 
 
EXEMPTION EEOJI TAXATION. 297 
 
 purposes and uses. The exemption of the property of the 
 United States, including the pttblic domain while remain- 
 ing unsold, as also that of state and county governments, 
 and of municipal corporations, is accorded in virtue of the 
 sovereign character of the ownership, and of the use to 
 which the property is applied. A tax upon that class of 
 property would require an increased rate of taxation on all 
 other taxable property to raise the necessary means to pay 
 such taxes, and would have no other result than the ex- 
 pense attending the collection and disbursement of the 
 money. The exemption of that class of property owned or 
 held by corporations or associations for religious, charitable, 
 benevolent, and educational purposes, rests upon the doc- 
 trine of public policy, and, in some states, is not allowed as 
 to any property except such as is specified in the preceding 
 section.^ 
 
 Sec. 167. Power of Legislature to exempt — and herein of 
 equal and uniform taxation. — Where the constitution provides 
 that taxation shall be equal and uniform, and that all pro- 
 perty within the state shall be taxed according to its value, 
 the legislature has no power to exempt any private property 
 from taxation, these terms being construed to be a limitation 
 on the power of the legislature upon the subject.^ ^ ^ In 
 
 1 See post, § 167. ed for the use of literary, benevolent, 
 1 The first constitution of Callfor- charitable or scientific institutions, 
 nia contained this provision: " Tax- and the land whereon the same were 
 ation shall be equal and uniform situated, not exceeding twenty acres, 
 throughout the state. All property and the personal property of every 
 in this state shall be taxed in pro- widow and orphan to the extent of 
 portion to its value, to be ascertained one thousand dollars, 
 as provided bylaw." Sec. 13, art. ^ in the case of the People d. Cole- 
 XL Con. Cal. This provision was man (4 Cal. 55), this provision of the 
 copied from a similar provision then constitution was considered, and 
 existing in the constitution of Texas, Justice Murray held that the 
 where it read word for word as above words " ' equal and uniform ' ap- 
 quoted, with the following added : ply only to a direct tax on property ; 
 " except such property as both (not on trades and professions) that 
 houses of the legislature may thinis; the legislature may select or exempt 
 proper to exempt from execution." such property as in its discretion it 
 The legislature of California, at its may think proper; and that these 
 first session, in the revenue act, ex- words do not by any fair interpreta- 
 empted from taxation all churches, tion, extend to a tax on occupa- 
 gra\eyards or cemeteries, not exceed- tions." 
 ing fifty acres; every building erect- ^The same question came up in 
 
298 
 
 THE LAW OF ASSESSMENTS. 
 
 the abseuce of a constitutional limitation a legislature 
 has power to tax all property within the state held in 
 private ownership, but a declaration that the property of 
 
 the case of High v. Shoemaker (22 
 Cal. 369), where Justice Nobton 
 remarked of the case of People v. 
 Coleman, that although the case 
 arose upoii a law imposing a, tax 
 which was considered a tax upon an 
 avocation or business, and not di- 
 rectly on property, yet it was neces- 
 sary for its determination to con- 
 sider the section in question, and 
 that the reasoning in that case is 
 a, correct interpretation of the sec- 
 tion, and that the omission to tax 
 a portion of the lands of the state 
 does not render the revenue act void. 
 This section came again before the 
 Supreme Court of California, at a 
 later period, for construction as to 
 the power of the legislature to ex- 
 empt property from taxation held in 
 private ownership, and the effect 
 that an unauthorized exemption had 
 on other property sought to be 
 taxed ; in other words, whether or 
 not, if the constitution required all 
 property in the state to be taxed in 
 proportion to its value, and that tax- 
 ation should be "equal and uni- 
 form," and whether if the legisla- 
 ture, acting under the limitations 
 and restrictions of the constitution, 
 should by special provisions exempt 
 a portion of the property of the 
 state and directed that the balance 
 should be taxed, the entire revenue 
 law would be invalid and unconsti- 
 tutional. Justice Rhodes in a very 
 able and exhaustive manner, in 
 the case referred to, discusses both 
 questions ; and after referring to the 
 clause or section of the constitution 
 as it existed in the constitution of 
 Texas, and as found in the consti- 
 tution of California, arrived at the 
 conclusion, that the framers of the 
 constitution of California intention- 
 ally limited the power of the legisla- 
 
 ture on the matter of exempting 
 property from taxation, and wholly 
 deprived the legislature of the power 
 to exempt any property held in pri- 
 vate ownership. In expressing his 
 views, the learned judge uses the 
 following language: "That section 
 was framed in full view of the prin- 
 ciple that the power of the legisla- 
 ture over the subject of taxation of 
 property is plenary, except as re- 
 stricted by constitutional limitations. 
 That portion of the section which 
 corresponds with the first portion of 
 the section in our constitution was 
 not, therefore, intended as a grant 
 of power to the legislature; nor was 
 it intended as an affirmance of a 
 power I'ecognized and admitted on 
 all hands as possessed by the legisla- 
 ture. The language is not expres- 
 sive of such an idea. It must have 
 been intended as a limitation of 
 power. This becomes manifest, and 
 we think, indisputable when that 
 portion of the section is read with 
 the following clause : ' Except such 
 property as two thirds of both houses 
 of the legislature may think proper 
 to exempt from taxation.' This 
 clause was inserted for some pur- 
 pose. It cannot be said that it was 
 added without any object, without 
 design, and merely to round a period. 
 It must have been added, because 
 the framers of the instrument un- 
 derstood that without it the previ- 
 ous portion of the section required 
 a property tax to be levied upon all 
 property without exception, and that 
 the clause was necessary in order to 
 enable the legislature to exempt any 
 description of property from the 
 operation of the general rule of taxa- 
 tion. By a slight change among the 
 members of the sentence, but still 
 retaining the same sense, it will 
 
EXEMPTION FROM TAXATION. 
 
 299 
 
 all corporations for pecuniary profit shall be subject to 
 
 ' taxation, the same as that of individuals, while it confers 
 
 no power, is a negation of the power to exempt the pro- 
 
 read: 'All property in the state, 
 except such property as two thirds 
 of both houses of the legislature may 
 think proper to exempt from tax- 
 ation, shall be taxed in propor- 
 tion to its value, to be ascertained as 
 directed by law.' Read in that man- 
 ner it is evident that the section is a 
 limitation upon the power of the 
 legislature to exempt from taxation, 
 any kind or parcel of property, un- 
 less exempted in the mode therein 
 described, and that the clause was 
 inserted as a relaxation of the gen- 
 eral and imperative rule embodied 
 in the previous words of the section. 
 Accepting as a fact that our consti- 
 tutional convention borrowed the 
 first part of the section relating to 
 taxation from the constitution of 
 Texas, and seeing that the clause in 
 that constitution permitting the leg- 
 islature to exempt property from 
 taxation is omitted from our consti- 
 tution, the conclusion is inevitable 
 that it was not intended that the 
 legislature should possess the power 
 to exempt property from taxation, if 
 the previous clauses of that consti- 
 tution did, in fact, limit the power 
 of the legislature in that respect." 
 This case overrules the cases of Peo- 
 ple V. Coleman and High v. Shoe- 
 maker, and remained the law of Cali- 
 fornia under her first constitution. 
 It will be observed, that there is no 
 express language in the section of 
 the constitution of California, for- 
 biding the exemption of properly 
 from taxation; but the fact that the 
 language omitted from this section — 
 found in the section from which it 
 was taken, in the constitution of 
 Texas, operated as a limitation of 
 power to exempt, and the express 
 language, directing that taxation 
 shall be "equal and uniform;" and 
 
 that all property in the state shall 
 be taxed in proportion to its value, 
 was conclusive as to the proper con- 
 struction to be given to the provi- 
 sion of the constitution of Califor- 
 nia. The next question considered, 
 was the effect of an exemption of 
 property, in an act of the legisla- 
 ture, upon the other property sought 
 to be taxed. The same learned 
 judge discusses this point in the fol- 
 lowing language: "Does the at- 
 tempted exempCion of certain species 
 of property from taxation render 
 the whole revenue act void ? We 
 are of the opinion that such result 
 does not ensue. The exemption be- 
 ing void, it must be stricken from 
 the act, and the act must be read as 
 if that provision had not beeij in- 
 serted. The act of April 2d, 1866, 
 when the illegal provision is expur- 
 gated, prescribes that an ad valorem 
 tax of one dollar and five cents, &c., 
 ' is hereby levied and directed to be 
 collected and paid for state purposes 
 upon the assessed value of all prop- 
 erty in this state.' It is therefore 
 the duty of the assessors, under this 
 act, to assess all property in their 
 respective districts, counties, &c., 
 subject to taxation. This compre- 
 hends all property except that which 
 may be denominated generally public 
 property. The omission of the as- 
 sessor to assess a parcel of property 
 under a misapprehension of the law, 
 will not invalidate the assessment 
 list. In that respect it will have no 
 greater effect than a casual omission 
 of a parcel of property through a mis- 
 take of fact." (People v. McCleery, 
 34 Cal. 447^57.) This case was 
 affirmed in the same court in the 
 following cases: Peoples. The Black 
 Diamond Coal M. Co. 37 Cal. 51 ; 
 Crosby v. Lyon, 37 Cal. 246. 
 
300 
 
 THE LAW OP ASSESSMENTS. 
 
 perty of any such corporations from taxation.* The Four- 
 teenth Amendment to the Constitution of the United States 
 provides, that "No state shall make or enforce any law which 
 shall abridge the privileges'or immunities of citizens of the 
 United States, . . . nor deny to any person within its 
 jurisdiction the equal protection of the laws." The exemp- 
 
 * Tlie constitution of Iowa con- 
 tains the following provision: " The 
 property of all corporations for 
 pecuniary profit shall be subject to 
 taxation, the same as that of in- 
 dividuals." The legislature of 
 Iowa, in 1872, passed a law exempt- 
 ing railroad companies from paying 
 any other taxes tha'n a, tax on their 
 gross earnings. The provision is 
 in the following language: "Every 
 railroad company which shall have 
 paid all taxes on gross earnings, 
 provided by chapter 106, of the 
 Acts of the Thirteenth General 
 Ass|;rably, shall be released from 
 the payment of all other taxes 
 which may have been levied upon 
 the road-bed, right of way, track, 
 rolling stock, and necessary build- 
 ings for operating their road, and 
 no taxes for prior years for state, 
 county, municipal, or any other 
 purpose for which a tax can be 
 levied, under the laws of the state, 
 up to the first day of January 
 last, shall be collected from any 
 such railroad company on such 
 property." The question be- 
 ing presented whether, under the 
 constitutional provision quoted, the 
 legislature had the power to make 
 this exemption from taxation, the 
 opinion of the Supreme Court of 
 Iowa was expressed in the following 
 language: "The taxing power be- 
 ing one of the sovereign powers of 
 the state vested in the general as- 
 sembly, and not being limited In 
 the constitution as to the kinds or 
 classes of property subject to taxa- 
 tion, it follows that the general 
 assembly possesses the power, de- 
 
 rived from its general legislative 
 authority, to subject all kinds and 
 classes of property to taxation for all 
 proper purposes, and that the clause 
 first above quoted" (the same here- 
 in quoted) " was not necessary to 
 enable it to pass laws for the taxa- 
 tion of the property of corporations. 
 The power of taxation reaches all 
 classes of property alike, independ- 
 ently of this provision of the con- 
 stitution. We therefore conclude 
 that since it must have been in- 
 tended to give some force and effect 
 to this section as a part of the funda- 
 mental law, it must be understood 
 as a command to, and as enjoining 
 it as a duty upon, the general as- 
 sembly, to provide by law for the 
 taxation of the property of corpora- 
 tions for' pecuniary profit the same 
 as that of individuals. In other 
 words, this clause requires the legis- 
 lature to provide for the taxation of. 
 this class of property the same as 
 that of individuals." In construing 
 the phrase, "the same as that of 
 individuals," the court held that it 
 did not mean the manner, but that 
 the tax upon the property of cor- 
 porations should be such that the 
 property of individuals and of cor- 
 porations should bear, equally, the 
 burdens of taxation. "The one 
 cannot be exempt and the other 
 liable." Davenport v. The C. R. I. 
 & P. E. K. Co., 38 Iowa 642. The 
 Supreme Court of the United States 
 say that it has been frequently de- 
 cided in that court "that a state 
 may make a valid contract that a. 
 corporation, or its property within 
 its territory, shall be exempt from 
 
EXEMPTION EEOM TAXATION. 
 
 301 
 
 tion of any of the property witliin a state or tax district, 
 owned or used for private purposes,, whether by corpora- 
 tions or individuals, as a necessary consequence devolves a 
 higher rate of taxation upon all the other property. It 
 v/ould seem to follow that any such exemption would 
 violate both the letter and the spirit of the constitutional 
 provision just quoted.^ Where exemption is claimed, it is 
 
 taxation, or shall be subject to a 
 limited and specified taxation," but 
 adds tlie following: "The court 
 has, liowever, in the most em- 
 phatic terms, and on every occa- 
 sion, declared that the language 
 in wliich the surrender" (of the 
 right of taxation) " is made must he 
 clear and unmistakable." Erie 
 Railway Company v. Pennsylvania, 
 21 Wall. 498, and cases cited (1874). 
 Tlie effect of the Fourteenth Amend- 
 ment on pre-existing legislation was 
 not considered — only the acts of the 
 State of Pennsylvania, under which 
 partial exemption was claimed by 
 the corporation, was construed. 
 
 5 The Supreme Court of Montana 
 T. have expressed the opinion — 
 "That the Fourteenth Amendment 
 to tlie Constitution of the United 
 States is a limitation upon the sov- 
 ereignty of the states, and was 
 adopted by the people of the United 
 States to secure to the inhabitants 
 of each state equal laws and equal 
 protection of the laws without re- 
 gard to race, color, or previous con- 
 dition : That this limitation applies 
 to the subject of taxation, and for- 
 bids the states or territories from 
 exempting property from taxation, 
 except in those cases wherein the 
 property is devoted to public uses in 
 which all the people are equally 
 benefited." N. P. E. K. Co. v. Car- 
 land, 2 "West Coast K. (Mont. T.) 
 357. The constitution of Indiana re- 
 quired that " The General Assembly 
 shall provide by law for a uniform 
 and equal rate of taxation ; and 
 shall provide such regulations as 
 
 shall secure a uniform and equal 
 rate of taxation; and shall provide 
 such regulations as shall secure a 
 just valuation for taxation of all 
 property, both real and personal, 
 excepting such only for municipal, 
 educational, literary, scientific, re- 
 ligious or charitable purposes, as 
 may be specially exempted by law. 
 (Part 10, Sec. 1.) 
 
 The legislature, under this pro- 
 vision of the constitution, enacted 
 as follows : "The property to the 
 amount of five hundred dollars of a 
 widow or unmarried female, or of 
 any female minor whose father is 
 deceased, if her whole estate, real 
 and personal, not otherwise ex- 
 empted from taxation, does not 
 exceed in value the sum of one thou- 
 sand dollars." 
 
 The Supreme Court of Indiana 
 held this exemption to be in viola- 
 lation of the constitution, requiring 
 a uniform and equal rate of assess- 
 ment; that it did not come within 
 any of the exceptions authorized by 
 Art. 10. The only class of property 
 to which it could belong, say the 
 court, is that designated — "chari- 
 table purposes. A charity, or 
 charitable use or charitable pur- 
 pose, means, in law, a public charity, 
 use or purpose, which affects the 
 public alike,'without reference to au 
 individual, class, or any particular 
 domestic relation. A private char- 
 ity, dispensed by an individual out 
 of his own means, the law will not 
 restrain; but a private charity, dis- 
 pensed by the state, at the expense 
 of her citizens, cannot be upheld. 
 
302 
 
 THE LAW OP ASSESSMENTS. 
 
 necessary to show that the property is clearly within the 
 exemption.^ 
 
 Sec. 168. XTnintentional omissions ■will not, but Intentional 
 omissions -will, render the Assessment Roll illegal; including 
 property exempt by mistake. — When the constitution or 
 statute requires taxation to be equal and uniform, it has 
 been held that mere omissions, mistakes of fact, erroneous 
 computations, or errors of judgment on the part of those to 
 whom the execution of the taxing laws is intrusted, do not 
 necessarily vitiate the whole tax;^ but that intentional 
 disregard of those requirements in such manner as to im- 
 pose illegal taxes on those who are assessed, does. Where, 
 iu the levy of municipal taxes, a valuable hotel property 
 
 It must be public, benefiting all 
 alike without reference to individ- 
 uals or classes, as such. It is the 
 character of the property, its use or 
 purpose, and not the character or 
 class of its owner, that may exempt 
 from taxation ... If the legisla- 
 ture can exempt the property of 
 widows, unmarried females, and 
 female minors without fathers, from 
 taxation, they can also exempt the 
 property of widowers, unmarried 
 males and male minors who have 
 no fathers." State o. Indianapolis, 
 69 Ind., 377. 
 
 ^ In California the Code provides 
 that when all the property of a corpo- 
 ration is taxed, the shares have no 
 taxable value, and to tax them 
 would be double taxation. In such 
 cases the taxation of the shares is 
 prohibited. Where an assessment 
 was in part made up of " mining 
 stock" — it was objected that as to 
 that item, the assessment was in- 
 valid; but the court held otherwise, 
 in the following language: "In our 
 opinion section 3640 by Us express 
 terms, only exempts the shares from 
 assessment where the entire capital 
 or property of the corporation in 
 ■which the shares are owned is as- 
 sessed, and it does not appear that 
 the corporation or corporations in 
 
 which the shares here assessed 
 were owned, were assessed at all 
 during the fiscal year for which the 
 assessment herein was made. And 
 further, if mining stocks, under any 
 circumstances, were taxable dur- 
 ing tlie fiscal year above referred 
 to, the assessment must be upheld. 
 We have already held that shares in 
 mining corporations, constituted 
 under the laws of California, but 
 whose tangible property was situate 
 in another state, were taxable, and 
 that section 3640 does not and never 
 did apply to such corporations. City 
 and County of San Francisco »• 
 Flood, 2 Pac. Eep. 266 (Cal.) For 
 the opposite view see n. 6, § 133. 
 
 ' Puget Sound Ag. Society v. Peirce 
 Co., 1 Wash. 172; Ricketts v. Spra- 
 ker, 77 Ind. 371. "It is further 
 objected, that the assessors inten- 
 tionally omitted to tax Legate, one 
 of the inhabitants of the district, 
 because he was very poor, and they 
 thought would soon come upon the 
 town for assistance, though he was 
 not then a pauper. If this was done 
 through error of judgment, or any 
 error and mistake of the la-w in this 
 respect, it does not invalidate the 
 whole tax ; and the case shows noth- 
 ing more. Williams v. School Dis- 
 trict, 21 Pick. 81 ; Dunham v. City of 
 
EXEMPTION EROM TAXATION. 
 
 803 
 
 was, by ordinance, exempted from taxation for two years, 
 " ill view of the great benefit which the construction of the 
 hotel would be to the city," and this property was pur- 
 posely omitted from assessment for the municipal taxes, 
 the entire tax was thereby rendered illegal.^ But an in- 
 tentional exemption by deductions, done under erroneous 
 understanding of the law, does not always operate to defeat 
 
 Chicago, 55 111. 361; Burlington & 
 Missouri E. E. Co. v. Saline County, 
 12 Neb. 396; Weeks v. Milwaukie, 10 
 Wis. 264; Hersey v. Milwaukie, 16 
 Wis. 191. 
 
 2 Weeks v. Milwaukie, 10 Wis. 263 ; 
 Hersey v. Milwaukie, 16 Wis. 192; 
 Brewer Brick Co. v. Inhabitants of 
 Brewer, 62 Me. 62. One of the 
 grounds relied on to defeat an assess- 
 ment was a change in the assessment 
 roll by order of the county commis- 
 sioners, the change being a deduc- 
 tion from the value of all lands 
 where trees were cultivated: for 
 each acre of forest trees $100, and 
 for each acre of fruit trees .$50. It 
 appeared that the plaintiff's assess- 
 ment in the county was $481,344, 
 and that the deductions within the 
 county amounted to $115,774. Prior 
 to an amendment of the constitution 
 a statute authorized deductions at 
 these rates, but tlie amended consti- 
 tution only authorized deductions to 
 the extent of the increased value of 
 the land by the culture of forest and 
 fruit trees. The deductions were 
 made under the erroneous impres- 
 sion that they were authorized by 
 the statute, and it was apparent that 
 they affected the rate of the tax levy 
 upon the other taxable property of 
 the county, especially that portion of 
 the land having no forest or fruit 
 trees cultivated thereon. It was con- 
 ceded by counsel on both sides that 
 mere accidental omissions in the as- 
 sessment of the property of the dis- 
 trict does not invalidate the tax. It 
 was objected to the assessment here 
 that the omissions were intentional, 
 
 and conceded that it was made un- 
 der a misapprehension of the law 
 and " in the conscientious belief 
 that the property omitted is not 
 taxable," or in other words, that, 
 where a land owner had cultivated 
 forest trees or fruit trees on his land 
 he was entitled to an exemption from 
 taxation at the rate of $100 per acre 
 for forest, and $.50 per acre for fruit 
 tree culture. It will be observed 
 that in the particular instance no 
 valuation was made of any increased 
 value to the land cultivated in forest 
 and fruit trees. The omission of 
 this $115,774 was intentional, done 
 by a mistake of law, and increased 
 the tax rate upon the property of the 
 contestant. But the court refused, 
 in the particular case, to recognize 
 any distinction between the deduc- 
 tions so made and accidental omis- 
 sions. In ruling on the point the 
 court used the following language: 
 " But we fail to recognize any sound 
 distinction in principle between the 
 two cases, nor do we regard either as 
 a sufficient ground for enjoining the 
 collection of a tax upon other prop- 
 erty otherwise legally imposed. The 
 assessment roll duly returned, as 
 this one is presumed to have been, 
 there being no evidence to the con- 
 trary, whatever may have been the 
 errors or imperfections it contained 
 as to the listing and valuation of 
 property, after passing the judgment 
 of the board of equalization, was a 
 valid basis for the levy of taxes for 
 that year, no fraud being alleged or 
 shown." B. & M. E. Co. v. Seward 
 County, 4 N. W. Eep. 1016 (Neb.) 
 
304 THE LAW OF ASSESSMENTS. 
 
 the assessment of an entire district.^ A party, including 
 property in his tax list, by mistake, which is exempt, does 
 not thereby waive his right of exemption, and is not 
 estopped from claiming the exemption.^ Including per- 
 sons or property not taxable, through ignorance or mistake, 
 will not vitiate the assessment roU> 
 
 Sec. 169. Exemption Laws are construed strictly. — Where 
 the exemption of the property of the state from taxation is 
 provided for, it will be construed to mean and include only 
 such property as is held or used for governmental uses or 
 purposes, and will not include shares held in a railroad 
 company.^ It will include property in which the school 
 fund is invested.^ Where the property of a railroad com- 
 pany was exempted, and the company used. a steamboat to 
 facilitate and extend its business, but which was not neces- 
 sarily a part of its line, it was held that the boat was not 
 exempt.^ But a provision exempting the "railroad" of a 
 corporation from taxation, will include its rolling stock 
 and other property necessarily used in operating the road. 
 Such provision, however, will not include detached lands 
 granted to aid in the construction of the road.* A build- 
 ing, erected upon the ground of a charitable corporation 
 which is exempt, under a lease, providing that the corpora- 
 tion may purchase the building, at the expiration of the 
 lease, is not exempt while owned by the lessee.^ Lodging 
 houses of religious and charitable corporations, when their 
 rooms are let at usual prices, are not exempt, notwithstand- 
 ing the proceeds are devoted to the religious and charitable 
 uses provided in their charters.* Leased ground, used and 
 occupied by a charitable corporation for charitable uses, is 
 not exempt, notwithstanding the corporation agrees in the 
 
 ' Bailey v. KcGuire, 22 Wall. 215. ^ New Orleans v. Kuss, 27 La. Ann. 
 
 * Inglee v. Bosworth, 5 Pick. 500. 413. 
 
 ' Atlantic &c. E. K. Co. v. Commis- ° Trustees, Good Shepherd v. Bos- 
 
 sioners of Cateret Co., "75 N. C. 474. ton, 120 Mass. 212. Under the gen- 
 
 2 Chicago V. People, 80 111. 384. eral statutes of Louisiana, orphan 
 
 ^111. jOentral K. E. Co. v. Irvin, 72 asylums are exempted, including as 
 
 111. 452. well that portion of their property 
 
 * Mobile &c. K. E. Co. v. Mosely, yielding revenue as that which does 
 52 Miss. 127; Eichmond &c. E. E. not — especially where such revenue 
 Co. I). Commissioners of Alamance, is devoted to the charitable purposes 
 76 N. C. 212. of the corporation. City of New 
 
 & 
 
* EXEMPTIOK PROM TAXATION. 305 
 
 lease to pay the taxesJ Where the exemption of a corpora- 
 tion does not constitute part of its cliarter, the legislature 
 may repeal such exemption without the corporation's con- 
 sent.^ But where the exemption is part of the charter 
 creating the corporation, it cannot be revoked or repealed 
 by the legislature, nor by a constitutional convention.^ 
 
 Where a railroad charter exempted its property until its 
 charter was completed, and the charter of a town was after- 
 wards amended, authorizing it to tax property of railroad 
 companies within its limits, tliis amendment of the town char- 
 ter did not operate a repeal of tlie exemption before the rail- 
 road was completed.^" Wliere a state constitution provides 
 that the right to repeal all acts creating corporations, or 
 granting privileges to corporations, ia reserved to the legis- 
 lature, it is not in the power of the legislature to grant an 
 immunity from repeal, of an exemption from taxation; nor 
 can any such immunity be granted by any subsequent con- 
 stitution.-'^ Where a charitable corporation, created by 
 special charter, contained a clause of exemption from taxa- 
 tion in the following language : " The property, real and 
 personal, of said corporation ^hall be exempt from taxa- 
 tion, and shall be entitled to the benefit of the provisions 
 of law relative to charitable institutions," it was held that 
 the exemption did not include exemption from an assessment 
 for a sewer constructed upon land owned by the corpora- 
 tion.^^ Unless the tei'ms under which the exemption is 
 
 Orleans v. Poydras Orphan Asylum, sessmetits, and the right to impose 
 
 .33 La. Ann. 853. assessments has its foundation In 
 
 ' Humphries!). Little Sisters of the the taxing power of the govern- 
 
 Poor, 29 Oliio St. 201. went; and yet in practice, and as 
 
 *> St. Louis &c. K. Pu Co. D. Loftin, generally understood, there is a 
 
 30 Arlv. 393; Tucker d. Ferguson, 22 broad distinction between the two 
 
 Wall. 527. terms. Taxes, as the terra is gen- 
 
 » Oliver ». Memphis &c. R. E. Co., erally used, are public burdens, im- 
 
 30 Ark. 128. posed generally upon the inhabitants 
 
 10 Elizabethtown &c. R. 11. Co. v. of the whole state, or upon some 
 
 Trustees, 12 Bush (Ky.) 233. civil division thereof, for govern- 
 
 " State V. Northern Central R. R. mental purposes, without regard to 
 
 Co., 44 Md. 131. peculiar benefits to particular indi- 
 
 I'^In construing this exemption viduals or property. Assessments 
 
 clause Justice Eari. used the fol- have reference to impositions for 
 
 lowing language: "In a broad improvements which are specially 
 
 sense taxes undoubtedly include as- beneficial to particular individuals 
 
 20 
 
THE LAW OF ASSESSiIE]SrTS. 
 
 claimed, clearly and distinctly show that it was the inten- 
 tion of the legislature to make the exemption, it will not 
 be allowed.^^ A statute exempting the property of a rural 
 cemetery association from " all public taxes, rates and 
 assessments," will be construed to apply onlj- to public 
 taxes, public rates, and public assessments, and not to 
 operate as an exemption of a local assessment for a local 
 improvement laid with reference to supposed benefits.^* 
 So, too, where the statute exempts from taxation the shares 
 of stock of domestic corporations whose entire property is 
 taxed, the shares owned by a resident of the stock of a 
 foreign corporation are not exempt.^^ Where a statute 
 exempts the property of a railroad company for a limited 
 number of years after the completion of its road, the 
 exemption cannot be allowed during the time of the Con- 
 
 or property, and which are imposed 
 in proportion to the particular bene- 
 fits supposed to be conferred. They 
 are justified only because the im- 
 provements confer special benefits, 
 and are just only when they are di- 
 vided in proportion to siich benefits. 
 What the legislature undoubtedly 
 meant was to exempt the plaintiff" 
 (the corporation) "from such taxa- 
 tion as it would, but for the exemp- 
 tion, have to share for governmental 
 purposes with all the other persons 
 in the ward, or city, or state. It can- 
 not be supposed that it was intended 
 to exempt it from assessments made 
 for the expense of improvements 
 specially beneficial to its property, 
 and to impose the whole of such ex- 
 pense upon other property, or upon 
 the public generally. Eoosevelt 
 Hospital D. Mayor, 84 K. Y. 111. 
 
 '8 Macon D. Central R. R. Co., 50 
 Ga. 620. In Louisiaaa the legisla- 
 ture enacted that ''no insurance 
 company, whose annual license tax 
 shall be §1,000, shall be liable to any 
 assessment throughout the state 
 other than that imposed by this ar- 
 ticle." It was held that this statute 
 did not prohibit the eity of !N"ew Or- 
 
 leans from taxing an insurance com- 
 pany coming within the provisions 
 of this act. Insurance Co. v. County 
 Commissioners, 1 Wood Ins. 85. 
 
 '* In construing the statute vising 
 the language of exemption cited in 
 the text, the court said: "Taxa- 
 tion is a burden. It is a common 
 burden, for the common good. The 
 person or the class which is ex- 
 empted therefrom is a favored one. 
 A statute giving favors at the ex- 
 pense of the public is not to be 
 liberally interpreted. Statutes con- 
 ferring exemptions from taxation 
 
 are to be strictly construed 
 
 The adjective ' public,' in the clause 
 above quoted, applies to the nouns 
 'rates' and 'assessments,' as well 
 as to the noun ' taxes.' And the 
 use of it limits the meaning, and 
 implies that there were, iu the view 
 of the framers of the statute, taxes, 
 rates and assessments^other than 
 those which it designates as public, 
 and from which the plaintiff is not 
 to be exempted." Buffalo City Cem- 
 etery V. City of Buffalo, 46 N.' Y. 508. 
 
 '■^ Porter v. R. I. & St. Louis R. R. 
 Co., K 111. 571. (See n. 3. § 132.) 
 
EXEMPTION FROM TAXATIOX. 307 
 
 strnction of the road.^® Exemption must be confined to 
 the propevty designated.^'' Where the exemption is of 
 " churches, meeting houses, or other places of stated wor- 
 ship," a building in course of erection, intended for the use 
 included in the exemption, is not exempt. The property- 
 must have the exemption character stamped upon it at the 
 time the exemption is claimed.^^ 
 
 Sec. 170. Exemption from Taxation, is not Exemption from 
 liocal Assessments. — The property of the state, although ex- 
 empt from taxation, is liable to assessment for local im- 
 provements, and the fact that tlie state cannot be sued, as 
 individuals, does not change the rule. This is the general 
 doctrine ; but in California, the view taken is, that assess- 
 ments, being special taxation for local improvements, are 
 but another form of the exercise of the power of taxation ; 
 and where not limited or restricted by the constitution, the 
 state may exempt its own, as also the property of the United 
 States, from this character of taxation: that the same power 
 which exempts from general, may also exempt from special 
 taxation (a). The demand for these local assessments against 
 
 16 The B. E. G. T. & O. K. Co. v. Penn. St. 288; (s. c. 27 Amer. K. 
 
 Kirkland, 33 La. An. 623; Dennis 650). The constitution of California 
 
 Sheriff, v. Railroad Company, 34 exempts growing crops. Under this 
 
 Id. 954. exemption, fruit, nut-hearing and 
 
 ^' Where the constitution author- ornamental trees and vines not of 
 ized the legislature to exempt, natural growth, are not exempted, 
 among others, property used for re- It was conceded that the word 
 ligious purposes, and the legislature " crop," " taken in its most corn- 
 provided for the exemption from prehensive sense, includes fruit 
 taxation in the following language: grown on trees," but not the trees 
 " Fourth, Every building erected themselves. Cottle v. Spitzer, 4 
 for religi'Dus worship, and the pews Pac. Rep. 4,35 (Cal.) 
 and furniture within the same, and (a) In the Montgomery Aveiiue case, 
 the lands whereon such building is the statute provided for opening 
 situated, not exceeding ten acres," New Montgomery street; fixed the 
 and alot adjoining a church edifice metes and bounds of the district to 
 was purchased by a religious society be taxed, and provided for an assess- 
 and a house erected thereon for the ment according to benefits to pay 
 residence and use of the pastor the damages to be assessed in favor 
 officiating as minister in the church, of those whose property should be 
 it was held that this property did taken for the street, but exempted 
 did not comewithin the exemption." the property of the United States 
 Trustees of M. E. Church v. Ellis, and of the state of California from 
 38 Ind. 4. such taxation. The validity of the 
 
 18 Mullen V. Commissioners, 85 Act was assailed upon this ground, 
 
308 
 
 THE LAW OF ASSESSMENTS. 
 
 the state are enforceable only as other demands against the 
 state.^ Where a state constitution grants special authority 
 to the General Assembl}', to exempt from taxation, "prop- 
 erty actually used for churches, school or charitable uses," 
 this grant of power implies a prohibition against exempting 
 any other propert}', not actually used for those purposes.a 
 The exemption, in general tax acts, of the property of char- 
 itable institutions from taxation does not exempt the real 
 estate of institutions of this character from taxes or assess- 
 ments for local improvements;' but where the language 
 
 but the court ruled that " The 
 power of assessment was but a por- 
 tion of the power of taxation, and 
 if tlie sovereign can exempt its own 
 property from taxation for general 
 revenue purposes, it cannot be doubt- 
 ed tliat it may exempt it from assess- 
 ment and taxation in any form. Tlie 
 rule of equality and uniformity can- 
 not be more stringent in respect to 
 local than to general taxation, and if 
 it can have no application in tlie lat- 
 ter case to the property of the sov- 
 ereign, it can have none in the 
 former." Doyle v. Austin, 47 Cal. 
 354-361. 
 
 1 Hassan ti. City of Rochester, 67 
 N. Y. 534. 
 
 2 Morrison v. Larkin, 26 La. An. 
 669. 
 
 ' Boston Seaman's Friend Society 
 V. Boston, 116 Mass., 185; Worces- 
 ter Ag. Society v. Worcester, id. 
 189; In re Mayor of New York, 11 
 Johns, 80. The court upon the ap- 
 plication of certain churches to 
 exempt their church property front- 
 ing on a street, from an assessment 
 for the improvement of the street, 
 used the following language : " The 
 churches are not well founded in 
 their claim to a total exemption of 
 their lots from assessments for open- 
 ing, enlarging or otherwise improv- 
 ing streets in tlie city of New York, 
 made in pursuance of the Act of 
 April 9th, 1813. These assessments 
 are intended and directed to be 
 
 made upon the owners of lands and 
 lots who may receive ' benefit and 
 advantage' by the improvement. 
 The exemption granted by the act 
 of 1801 was in the general act for 
 the assessjncnt and collection of 
 taxes {1 N. R. L. 556), and the pro- 
 visions of the act refer to genei-al 
 and public taxes to be assessed and 
 collected for the benefit of the town, 
 county or state at larr/e. The words 
 of the exemption are, that no church 
 or place of public worship, nor any 
 schoolhouse, &c. should be taxed 
 by any law of this state." "The 
 word ' taxes ' means burdens, 
 charges or impositions, put or set 
 upon persons or property for public 
 uses, and this is the definition which 
 Lord Coke gives of the word talii- 
 age (2 Inst. 532) ; and Lord Holt 
 in Cartli. 438, gives the same defini- 
 tion, in substance, of the word tax. 
 The legislature intended by that 
 exemption, to relieve religious and 
 literary institutions from these pub- 
 lic burdens, and the same exemption 
 was extended to the real estate of 
 any minister, not exceeding in value 
 1,500 dollars. But to pay for the 
 opening of a street, in a ratio to the 
 ' benefit or advantage ' derived from 
 it, is no burden. It is no talliage or 
 tax within the meaning of the ex- 
 emption, and has no claim upon the 
 public benevolence. Why should 
 not the real estate of a minister, as 
 well as of other persons, pay for 
 
EXEMPTION FROM TAXATION. 
 
 309 
 
 clearly includes assessments, as where the words are "taxes 
 or assessments" the exemption will also include assess- 
 ments for local improvements.* 
 
 bEO. 171. U. S. Bonds not taxable upon their value above par. 
 — When property is exempt from taxation, its value is 
 not a factor in determining the question of the exemption 
 from taxation. United States bonds being exemption from 
 taxation, it is the bond, and not its value, that is exempt. 
 This question came before the Supreme Court of New 
 York in the case of People ex rel. v. Com'rs of Taxes,^ 
 which was a proceeding to vacate an assessment of $600,000 
 for personal property, it being admitted that the assessment 
 
 such an improvement in proportion 
 as It is benefited ? , Tliere is no in- 
 convenience or hardship in it, and 
 the maxim of the law tliat qui sentit 
 commodum debet sentire onus (be 
 ought to bear the burden who would 
 derive the advantage), is perfectly 
 consistent with the interests and 
 dictates of science and religion." 
 
 * The charter of a charitable cor- 
 poration provided that its property 
 should not be subject " to taxes or 
 assessments," and the corporation 
 claimed exemption from two assess- 
 ments for a local improvement which 
 liad been levied upon the theory of 
 benefits to the property assessed, 
 and the court sustained the claim. 
 In passing upon the question, the 
 Justice rendering the opinion used 
 tlie following language : " I think 
 tbat they " (the assessments) ''are 
 within the exempting words of the 
 charter, and while recognizing, to its 
 fullest extent, the indisputable doc- ' 
 trine relied on by tlie learned justice 
 below in his opinion, that no person 
 or corporation can be exempted from 
 taxation, except by express words 
 or necessary implication equally 
 strong, I am constrained to admit 
 that the legislative intent is, in tliis 
 instance, too clearly and distinctly 
 expressed to be open to doubt." 
 The State v. The Mayor &c., New- 
 
 ark 36 isr. .T. (7 Vroom) 478: (s. c. 13 
 Amer. R. 464.) 
 
 ' On the question of assessing the 
 premium upon such bonds, Justice 
 Eabl says: "It is clear therefore 
 that if the premiums upon such 
 bonds, over which the holder has no 
 control, which he can neither create 
 nor destroy, and which do not really 
 indicate any enhanced value of the 
 bonds, can be taxed, the policy of 
 the law as to the exemption of gov- 
 ernment securities from taxation 
 would be greatly violated. The 
 premium is not something distinct 
 from the bond, and cannot exist 
 apart from the bond. It is inherent 
 in it, and goes with it. When the 
 confidence of the public in it is de- 
 stroyed, that is destroyed. When 
 the bond is ti'ansferred that goes 
 along; and as tlie bond approaches 
 maturity, it vanishes. The premium 
 is part of the entire value of the 
 bond, and when that is taxed the 
 bond is taxed, or what is equally 
 condemned, the value or a part of the 
 value of the bond is taxed. A con- 
 ception of the premium upon a bond 
 as a distinct entity, for the purpose 
 of taxation, is too transcendental 
 and metaphysical for common com- 
 prehension and judicial cognizance." 
 People ex rel. v. Commissioners of 
 Taxes, 90 N. Y. Rep. 6a. 
 
310 THE LA"W" OF ASSESSMENTS. 
 
 consisted of U. S. bonds for that amount. Upon an ap- 
 peal to the defendants as a board of equalization, the as- 
 sessment was reduced to $72,000, that appearing to be the 
 value of the bonds above the par value ; and it was claimed 
 that this was not an assessment iipon the bonds but upon 
 their premium value — the value they bore in tlie market above 
 par value. In the opinion rendered by Justice Eael, is a 
 short extract from the opinion of Ch. Justice Marshall, 
 in the case of Weston v. The City Council of Charleston,^ 
 in the following words: "The right to tax the contract to 
 any extent, wlien made, must operate upon the power to 
 borrow before it is exercised, and have a sensible influence 
 on the contract. To any extent, however inconsiderable, 
 it is a burden on the operations of government. It may 
 be carried to an extent whicli shall arrest them entirely." 
 
 Sec. 172. Exemptions — consisting of deductions. — There 
 is a class of exemptions which may properly he termed de- 
 ductions, for the reason that they consist of debts which 
 the tax-payer owes, or, from some other circumstance, 
 has the right to have deducted from the estimate or valu- 
 ation of his taxable property, or some portion of it. The 
 right to these deductions is created by constitutional 
 or statutory provision. In some states they are allowed 
 only against a valuation of debts owing to tlie person 
 assessed ; in others they must be owing to bona fide resi- 
 dents of the state, before they will be allowed, and in 
 others they are allowed only in favor of a party who owes 
 a debt secured by mortgage, when it is deducted from the 
 estimated value of the land, in favor of the mortgagor, and 
 is assessed to the mortgagee as an assessment of a solvent 
 debt. Deductions to the extent allowed, work a practical 
 exemption of property from taxation ; and where solvent 
 debts are taxed, by diminisliing the valuation of the tan- 
 gible, corresponding to the value placed on the intangible, 
 to that extent may prevent double taxation. But whether 
 it be within the power of the legislature, by a system of de- 
 ductions, to exempt from taxation a portion of the taxable 
 property of the state, in favor of any class, debtor or nour 
 debtor, will depend upon the provisions of organic law, and 
 2 2 Peters, 449-468. 
 
EXESIPTIOX PEOM TAXATION. 
 
 311 
 
 the proper construction of tlie Fourteenth Amend inent as 
 applicable to exemptions. Where the provision is that 
 all persons and property must be taxed by a rule of uni- 
 formity and equality-, and thei'S are no otiier enlarging or 
 restrictive words, the legislature is restrained from exempt- 
 ing any propert}', even solvent debts or credits, to the ex- 
 tent of the tax-payer's own indebtedness, from taxation.^ 
 
 debt within the meaning of tliis sec- 
 tion; and so mucli only of any lia- 
 bility as surety for others shall be 
 deducted as the person making out 
 tlie statement believes the surety is 
 legally and equitably bound to pay, 
 and so much only as he believes 
 such surety will be compelled to pay 
 on account of the inability or insol- 
 vency of the principal debtor — . . . 
 provided that nothing in this section 
 shall be so construed as to apply to 
 any bank, company or corporation 
 exercising banking powers or priv- 
 ileges." The Supreme Court of 
 Ohio held this section to be in con- 
 flict witli the constitutional provision 
 above quoted. The following ex- 
 tracts from the opinion of the court 
 construing this statute and provision 
 of the constitution, will show the 
 view taken of the attempt to allow 
 deductions on account of indebt- 
 edness: "Tlie language of the 
 constitution is comprehensive and 
 explicit in the requirement that all 
 property of every description, ex- 
 cepting only that which falls within 
 the. specified exemptions, should be 
 taxed. The only exemption or ex- 
 ception allowed in favor of individ- 
 uals is to be found in the words, 
 'personal property, to an amount 
 not exceeding two hundred dollars 
 in value for each individual, may, by 
 general laws, be exempted from tax- 
 ation.' It has ever been the humane 
 policy of our laws to allow a certain 
 amount of personal property, suffi- 
 cient to include the most essential 
 and necessary articles for the sup 
 port of a family, to be exempt from 
 
 1 The constitution of Ohio (art. 12, 
 § 2), contained the following pro- 
 vision : " Sec. 2. Laws shall be 
 passed taxing, by a uniform rule, 
 all moneys, credits, investments in 
 bonds, stocks, joint stock compa- 
 nies, or otherwise, and also all real 
 and personal property, according to 
 its true value in money; but burying 
 grounds, public school houses, houses 
 used exclusively for public worship, 
 institutions of purely public charity, 
 public property used exclusively for 
 any public purpose, and personal 
 property to an amount not exceed- 
 ing in value two hundred dollars for 
 each individual, may by general laws 
 be exempted from taxation; but all 
 such laws shall be subject to altera- 
 tion, or repeal, and the value of the 
 property so exempted shall, from 
 time to time, be ascertained and 
 published, as may be directed by 
 law." Under this constitutional 
 provision the legislature of Ohio, 
 as part of its revenue laws, enacted 
 the following: "In making up the 
 amount of moneys and credits which 
 any person is required to list for 
 himself, or any other person, com- 
 pany or corporation, he shall be en- 
 titled to deduct from the gross 
 amount of moneys and credits the 
 amount of all bona fide debts owing 
 by such person, company or corpora- 
 tion, for a consideration received; but 
 no acknowleilgment of indebtedness 
 not founded on actual indebtedness, 
 believed, when received, to have been 
 adequate, and no such acknowledg- 
 ment made for the purpose of being 
 so deducted shall be considered a 
 
312 ' THE LAW OF ASSESSMEiTTS. 
 
 The Supreme Court of New York decided that no deduc- 
 tion is to be made for debts owing by a shareholder in a 
 national bank, on account of an assessment against him for 
 the value of such shares, basing its conclusion upon the 
 fact that the assessment, under the requirements of the 
 National Banking Act, is made within the ward or district 
 where the bank is located, irrespective of the residence of 
 the holder, and the tax must be paid by the bank, and de- 
 ducted from dividends thereafter accruing on such shares, 
 if not otherwise paid. Reliance was placed upon the lan- 
 guage of the act authorizing the tax, in words, "but stock- 
 holders in sucli lianks and banking associations, shall be 
 assessed and taxed on the value of their shares of stock 
 therein." 2 This decision has been overruled by the Su- 
 preme Court of the United States, and the law established, 
 that the holder of national bank shares is entitled to deduc- 
 tions on account of his indebtedness, as against the value 
 of liis shares, on like terms witli the holders of other corpo- 
 ration shares and other owners of real or personal property', 
 including solvent debts: (§186 n. 2). This is a necessity, 
 in order to carry into practical effect the doctrine of uni- 
 formity and equality, as it affects all persons and property. 
 When deductions are allowed they must be claimed : (§ 186, 
 n. 4). Where a corporation is entitled to an exemption on 
 account of U. S. bonds, constituting part of its property, 
 the exemption is confined to the par value and not the mar- 
 execution for the payment of debts, taxed, is not to be evaded by any 
 . . . But the very fact of this ex- circuity or indirection. And to al- 
 emption excludes the idea that any low an individual, in furnishing the 
 other or further exemption can be list of his property for taxation, to 
 made. The language of the consti- reduce the amount of ' his taxable 
 tutiou authorizing the tax upon the property to an extent equal to his 
 property of individuals, is substan- liabilities, or in other words, to de- 
 tially as follows: 'Laws shall be duct tlie amount of his liabilities 
 passed taxing all the property of from his taxable property, whether 
 every description belonging to indi- it consists of money and credits, or 
 viduals, excepting that personal other property, would, in substance 
 property, to an amount not exceed- and effect, amount to the same thins 
 ing two hundred dollars/or each in- as an express exemption from taxa- 
 dividual, may, by general laws, be tion to the extent of such deduo- 
 exempted from taxation.^ This im- tion." Exchange Bank of Columbus 
 perative requirement of the consti- v. Hines, 3 Ohio St. 9-14. 
 tution that all property should be ^ People b. Dolan, 36 X. Y. 69. ' 
 
EXEMPTION FEOM TAXATION. 
 
 313 
 
 ket value of the bonds.^ A statute authorizing a deduction 
 of fSOO from the assessment of each person who shall have 
 served seven years in the militia, does not create a contiact 
 between the state and those who may have rendered the 
 service specified, and may be repealed at any time, and 
 those who may have served the prescribed time in the mili- 
 tia, after the enactment of the statute, and before its repeal, 
 will not thereafter be entitled to the exemption.^* It has 
 been held, that if a partj- can bring himself within the law 
 
 = People 13. Roper, 35 N. Y. 630. 
 ^"People V. Assessors, 84 N". Y. 
 612. (See contra, post, § 174.) 
 
 Ill Oregon the statute on the sub- 
 ject of deductions is in the follow- 
 ing language: " It shall be the duty 
 of the assessor to deduct the amount 
 of indebtedness within this state, of 
 any person assessed, from the 
 amount of his or her taxable prop- 
 erty given under oath." A question 
 arose under this statute as to the 
 meaning of the language "of in- 
 debtedness within this state" — 
 whether it meant that the person 
 owning the indebtedness must re- 
 side within tlie state, or whether it 
 was sufficient if the debt was paya- 
 ble within the state, to entitle the 
 debtor to the deduction. The facts 
 were, that A. was indebted to W. in 
 the sum of $15,000, secured by mort- 
 gage on real estate in Multnomah 
 County, and that the note was made 
 payable there. W. resided in that 
 county at the time the loan was 
 made, and for some time thereafter, 
 ^nd then left, so that, at the time of 
 the assessment, the residence of W. 
 was unknown. Tlie court construed 
 the statute to mean that the creditor 
 nmst reside within the jurisdiction 
 of the state, so as to be taxable 
 upon the debt as a solvent debt, to 
 entitle the debtor to the exemption. 
 "To hold," s;iid the court, "that 
 the debtor should be exempt when 
 the creditor was a non-resident of 
 the state " {as was admitted to be 
 
 .the fact in this case) " would be to 
 hold that the property might not be 
 taxed at all." In arriving at a con- 
 clusion upon the intention of the 
 legislature, the court referred to 
 the declaration in the state constitu- 
 tion, to the effect that " all taxation 
 shall be equal and uniform," and 
 concluded that it must have been 
 the intention of the legislature, in 
 passing this feature of the statute, 
 that in order to authorize the de- 
 duction or exemption of indebted- 
 ness, the particular indebtedness 
 exempted should be liable to assess- 
 ment within the state. Ankeny v. 
 Multnomah County, 4 Or. 272. This 
 construction unquestionably tends to 
 secure the assessment of all prop- 
 erty within the state liable to taxa- 
 tion; but it may not be so easy to 
 perceive how it affects uniformity 
 and equality as between tax-payers. 
 To illustrate: B. obtains a loan 
 of ten thousand dollars from C, 
 who is, and remains, a resident of 
 the county until repayment. Each 
 year B. is allowed to deduct this 
 ten thousand dollars from the value 
 of his taxable property. In the 
 same county G-. obtains a loan from 
 H. of ten thousand dollars. Each 
 loan is for the same rate of interest. 
 When G. obtained his loan H. was 
 a resident of the county, but, after a 
 year, he leaves the state. After this, 
 G. is denied the deduction of ten 
 thousand dollars, and must pay on 
 an assessment without any deduc- 
 
314 
 
 THE 1,AW OF ASSESSMENTS. 
 
 autlioriziiig a deduction, on account of his indebtedness, 
 it will be no bar to tlie right that it was done to escape tax- 
 ation — thus: where a partj' gave his note for $25,000 
 which he borrowed and used in the purchase of U. S. bonds, 
 and pledged the bonds as collateral for the payment of the 
 note, and then filed his affidavit that his indebtedness ex- 
 ceeded his taxable personal property, the note representing 
 a bona fide debt, it was held to be a proper deduction: *^^ 
 but this view is unsupported, and the opposite has been 
 taken by the Suprreme Court of the United States, and 
 ma}' be regarded as the law.- 
 
 Sec. 173. Land Grants in aid of Railroad Corporations when 
 —cease to be Exempt. — Public lands of the United States 
 granted in aid of the construction of the Union Pacific and 
 Central Pacific Railroads, while they remain unpatented 
 and the costs of survey unpaid, the United States retains 
 an equitable title thereto, and they are exempt from taxa- 
 tion.i gy^; when the patent has been issued, or after the 
 
 State V. Kruttschtnidtt, 4 
 
 tion. This system fails to work 
 \iniformity and equality as between 
 these tax-payers. Under the revenue 
 laws of Nevada, providing for the 
 assessment of the proceeds of the 
 mines, the ores are to be assessed at 
 their value when severed from the 
 mine, after they have been worked 
 and the bullion extracted, when 
 that is done within the state. The 
 assessor is required to deduct from 
 the actual value of the yield eighteen 
 dollars for each ton worked by wet 
 process, and forty dollars per ton for 
 each ton worked by roasting or 
 smelting process, " the remainder 
 to be estimated at the true value of 
 the ore at the dump." 
 
 * People V. Ryan, 88 N". Y., 142. 
 
 ^ When the finances of the state 
 were conducted on a U. S. currency, 
 instead of a gold coin basis, and the 
 statute required the assessor to 
 estimate all values in U. S. cur- 
 rency, it was held that the $18 and 
 §40 should not be deducted on the 
 gold coin value, but after the value 
 was found and fixed, in U. S. cur- 
 
 rency. 
 Nev. 214. 
 
 ^ In the State of Indiana a tax- 
 payer has the right, under the act 
 of December 21st, 1872, to deduct 
 from "money at interest," either 
 within or without the state, and all 
 other demands constituting the " to- 
 tal amount of all credits " owned 
 and held by him, from his bona fide 
 indebtedness, and to list or give in 
 the surplus, or remainder only, for 
 the purposes of taxation. Malter 
 V. Campbell, 71 Ind. 517. 
 
 ' Railway Co. v. McShane, 22 
 Wall. 463; Wisconsin Central R. R. 
 Co. V. Taylor County, 52 Wis. 37. 
 The charter of the Illinois Central 
 Railroad Company provided that: 
 " The lands selected under said act 
 of congress, and hereby authorized 
 to be conveyed, shall be exempt 
 from all taxation under the laws of 
 the state, until sold and conveyed 
 by said corporation or trustees," 
 &c, A tract selected a:id held un- 
 der the charter of the company was 
 sold for $25,000, $3,000 of which 
 
EXEMPTION FEOM TAXATION. 315 
 
 grantee has become entitled to a patent and has paid the 
 costs of survey, the equity of the Government has become 
 extinguished, and all suclx lands are liable to taxation. A 
 mortgage executed by the grantee upon the lands granted 
 works no change as to the taxable character of the lands.i 
 Where lands situated in Minnesota granted to a railroad 
 company, were exempted from taxation " until the same 
 shall have been sold and conveyed by said company," it 
 was held that after the company had entered into an agree- 
 ment to convey the lands to a purchaser as fast as the title 
 was acquired, the purchaser paying all expenses, these 
 lands were taxable.^ 
 
 Sec. 173a. 'What is exempted under Act granting Lands to 
 a Railroad Corporation, and exempting the Property and Shares 
 of the Company from Taxation. -r—Wliere the power exists to 
 exempt from taxation public lands granted to a railroad 
 corporation, and the act granting the lands also exempts 
 *' the property and shares of the corporation " from taxation, 
 the exemption includes the right of way, the roadbed, rails, 
 station buildings, machine shops and all buildings and fix- 
 tures permanently fixed to the soil for the purposes and uses 
 of the railway: and the exemption is to be treated as con- 
 stituting a contract for a valuable consideration, and not re- 
 pealable at the option of the power granting it.^ Where a 
 
 was paid in cash, and the balance ^ The Congress of the United 
 payable in five annual installments, States, when creating It, donated to 
 ■with a clause forfeiting the land the Northern Pacific Railroad Com- 
 upon failure to pay any installment, ijany, a grant of public lands to aid 
 Six years after the sale the tract it in the construction of a railroad 
 was assessed, and the court held between certain points, and over a 
 that it was properly taxed. There route specified, and as part of the 
 was no evidence that the purchase act, provided that the " property of 
 money was not all paid. "If the said company and the shares therein 
 purchase money here had all been shall be exempt from any public 
 paid, we are of opinion that the land charge or tax whatsoever." The 
 would be taxable; " and a town hav- assessor of Custer County, Montana 
 ing been laid out on the land, and T., after assessing the Northern Pa- 
 no action having been taken by the cific Railroad Company with $15,.500 
 railroad company, " all these are for personal property, also made an 
 indications toward the purchase assessment against the corporation 
 money having been paid." Cham- for " twenty miles of railroad and 
 paign County v. Heed, 100 111. 306. rolling stock," valuing tbe property 
 2 State V. Winona, &c., R. R. Co., at $200,000. The company claiming 
 21 Minn. 474. , that the latter assessment was uuau- 
 
316 
 
 THE LAW OF ASSESSIIENTS. 
 
 street railway company is exempted from state tax on " all 
 the property of the company," this exemption does not 
 
 thorized, and that their right of way 
 over public lands, together with their 
 roadbed, rails, fixtures, station 
 houses and other buildings and fix- 
 tures, permanently affixed to the 
 soil in the cotistruction, and for the 
 use of the railway, constructed un- 
 der authority of its charter, were 
 exempt from taxation, enjoined tlie 
 collection of the tax on this portion 
 of the assessment. The Supreme 
 Court of Montana T. held this view, 
 and adjudged the assessment void. 
 The following language was used 
 to express the opinion of the court, 
 so far as relates to the exemption 
 of the property from taxation: 
 1. "Plaintiff's" (the Co.'s) "right of 
 way through the public lands is an 
 easement therein, and such an inter- 
 est in the land that personal articles' 
 attached to the soil and annexed to 
 the easement within the boundaries 
 of the right of way, become a part 
 of the land, and therefore partake 
 of and are included in the exemp- 
 tion from taxation that belongs to 
 the right of way, and hence that a 
 tax levied upon ' twenty miles of 
 railroad' constructed upon, over or 
 through plaintiff's right of way in 
 the teiTitories of the United States, 
 is a tax leipied upon property that is 
 exempt from taxation, and therefore 
 void. ... 2. That it is within the 
 constitutional power of Congress to 
 exempt the property of the United 
 States from taxation. The govern- 
 ment may dispose of its own prop- 
 erty upon such terms and conditions 
 as it deems proper, and congress is 
 the sole judge as to how this prop- 
 erty shall be disposed of. . . . 3. It 
 was competent for congress to char- 
 ter the Northern Pacific Kailroad 
 Company; to grant to it public lands, 
 and exempt its right of way through 
 such lands from taxation . . i. There 
 
 is a consideration for the contract 
 contained in the charter incorpo- 
 rating the Korthern Pacific Rail- 
 road Company, which consideration 
 is found in the public benefits to be 
 derived to the whole people of the 
 United States by reason of the con- 
 struction of such road. When rights 
 have become vested under a valid 
 contract, legislative authority can- 
 not invalidate such contract, or dis- 
 turb such rights. ... 5. The Four- 
 teenth Amendment t<J the Constitu- 
 tion is not a limitation upon the 
 power of congress in the disposal of 
 the property of the United States. 
 ... 6. That the Fourteenth Amend- 
 ment to the Constitution of the 
 United States is a limitation upon 
 the sovereignty of the states, and 
 was adopted by the people of the 
 United States to secure to the inhab- 
 itants of each state equal laws and 
 equal protection of the lands with- 
 out regard to race, color, or previous 
 condition. 1. That this limitation 
 applies to the subject of taxation, 
 and forbids the states or territories 
 from exempting property from taxa- 
 tion, except in those cases wherein 
 the property is devoted to public 
 uses, in which all the people are 
 equally benefited." Speaking of 
 the property character of the right 
 of way, the court said : " The right 
 to construct a railroad through the 
 public lands, and the exemption of 
 its right of way from taxation in the 
 territories, is a franchise. It is a 
 right based upon and growing out 
 of a contract. It is property, and 
 valuable property. But it is SJich 
 property that taxation might de- 
 stroy. The right of way through 
 this territory is about eight hundred 
 miles in length. If this property is 
 exempt from taxation, an annual 
 tax thereon, at flie rate claimed in 
 
EXEMPTION" EEOM TAXATION. 317 
 
 include a tax on dogs. Tliis tax is more in the nature of a 
 license than a tax, imposed only on those who choose to 
 keep animals of that kind.^ 
 
 Sec. 174. TT. S. Bonds and Treasury Notes exempt — con- 
 verting money into, to avoid taxation. — U. S. bonds, and U. 
 S. treasurj'- notes, commonly called "greenbacks," by the 
 laws of Congress are exempt from taxation. But shares of 
 national banks, whose circulating notes are known as na- 
 tional bank notes, the redemption of which is provided for 
 by deposit of U. S. bonds, are made taxable by the law 
 providing for their organization. They can, however, as 
 already appears, be taxed at no liigher rate than moneyed 
 capital in th"e hands of corporations and individuals, in the 
 state where located ; and are to be assessed for taxation, 
 only in the town or ward where the bank is located, re- 
 gardless of the residence of the owner or holder.^ But 
 where a party converts money or property into U. S. bonds 
 or treasury notes to evade taxation and not as an invest- 
 ment, it will be regarded as a fraud against the revenue 
 laws of the state, and he will be subject to taxation to the 
 same extent as if such device had not been attempted.^ A 
 party may, however, convert his money and property into 
 
 the complaint, might cripple, if it plaintiff, on the 28th February, 1870, 
 
 ' did not destroy, the franchise. Tlie had a balance to his credit in his 
 
 plaintiff, in the construction of its bank account of $19,350 in current 
 
 road, had the right to rely upon the funds (greenbacks), for which, on 
 
 terms of its contract with the gov- tliat day, he gave his check, payable 
 
 ernment. The imposition of a tax to his oun order, in U. S. treasury 
 
 upon its right of way, is an invasion notes. Tliey were paid to him. He 
 
 of its contract, and such a violation immediately enclosed them in a 
 
 thereof as the constitution prohibits, sealed package, and placed them 
 
 and as equity will enjoin." Northern for safe keeping in the vault of the 
 
 Pacific E. R. Co. t. Garland, 2 West bank. On the 3d of March follow- 
 
 Ooast R. 356, 357-8 (Mont. T.). ing he withdrew his package, and 
 
 When the property of a railroad deposited the notes to his credit, 
 
 corporation is exempted from taxa- This was done for the sole purpose 
 
 tion, this includes the franchise, of escaping taxation upon his money 
 
 Porter v. E. E. I. & St. L. E. E. Co., on deposit. In Kansas, where this 
 
 76111. 574. occuri'ed, personal property included 
 
 - Hendrie v. Kalthoff, 48 Mich. 300. money on deposit, and property was 
 
 'Van Allen v. The Assessors, 3 listed for taxation as of March 1st 
 
 Wall. 573. 6*<^1' year. The assessor, on discov- 
 
 2 In the case of Mitchell v. Com- ery of the facts, assessed Mitchell 
 
 missioners, &c., the facts were that with the amount of his money on 
 
318 
 
 THE LAW OF ASSESSMEJTTS. 
 
 U. S. bonds or treasury notes, notwithstanding it be with 
 intent to avoid taxation. He may do so, when it is not a 
 mere device, but a bona fide transaction. He may prefer 
 
 deposit at the time he procured the 
 U. S. treasury notes, and he brought 
 suit to restrain the collection of the 
 tax. The court dismissed his suit. 
 This judgment was affirmed in the 
 Supreme Court of Kansas, and also 
 in tlie Supreme Court of the United 
 States. The grounds upon whicli 
 the decision of the case was based 
 are, that "a court of justice, sitting 
 as a court of equity, will not lend its 
 aid for the accomplishment of sucli 
 purpose." Chief Justice Waite, 
 speaking for the court, said: 
 " United States notes are exempt 
 from taxation by or under state or 
 municipal authority; but a court of 
 equity will not knowingly use its ex- 
 traordinary powers to promote any 
 such scheme as this plaintiff devised, 
 to escape his proportionate share of 
 the burdens of taxation. His rem- 
 edy, if he has any, is in a court of 
 law." Mitchell v. Commissioners, 91 
 U. S. (1 Otto) 200; s. c, 9 Kan. 200, 
 .S44. This case (Mitchell v. Commis- 
 sioners) would seem to be in con- 
 flict witli People v. Eyan, 88 N. Y. 
 142 (cited § 172, n. 4), but is in 
 harmony with the case of Jones v. 
 Seward County, decided by the 
 Supreme Court of Nebraska, where 
 the facts were that Jones had on 
 deposit in his bank on the 1st day 
 of March, 1876, $94,858.06, of wliich 
 $54,158.06 was due to depositors, the 
 balance, $40,700, was pi'operly due 
 to his own credit; that on that day 
 Jones owned U. S. bonds of the 
 value of $41,650; that these bonds 
 were bought by him on the last day 
 of February, 1876, and were con- 
 verted into money on tlie 7th day of 
 March, 1876, and returns received 
 therefrom on the 1.3th day of the 
 same month; that these bonds were 
 bought by a bank in New York, and 
 
 retained there until sold. Upon 
 these facts it was found by the trial 
 court that the bonds were bought 
 "for the purpose of evading taxa- 
 tion, and for the purpose of avoid- 
 ing the payment of a just proportion 
 of the taxes, and that the purchase 
 was, in effect, a fraud upon the rev- 
 enue law." This finding was sus- 
 tained, the court remarking that it 
 did not appear that the bonds were 
 purchased as an investment, but 
 that the investment was merely 
 temporary. Jones v. Seward County, 
 4 N". W. Kep. 946 (Neb. ). The same 
 fpiestion was involved in Holly 
 Springs Savings and Insurance 
 Company v. Supervisors of Mar- 
 sliall County, 52 Miss. 281; (s. c. 24 
 Amer. Eep. 668.) This corporation 
 had a capital of $32,000, which in 
 December, 1872, it invested in U. S. 
 treasury notes to escape taxation on 
 its capital, which was required to be 
 listed on the 1st day of January fol- 
 lowing. On the 18th of January 
 these notes were sold and converted 
 into money. This action was taken 
 by the corporation to escape taxa- 
 tion on its capital of $32,000. In an 
 able opinion, wherein the court cites 
 with approval the case of Mitchell v. 
 Commissioners, the court held tliat 
 this action constituted a fraud, and 
 did not exonerate the company from 
 taxation on its capital. " It is 
 shown by the proof that the sav- 
 ings institution has embarked in its 
 business $32,000, which it keeps con- 
 stantly employed at a profit througli- 
 out the year of 12 to 18 per cent. 
 For a few days it invests these 
 means in government securities, and 
 claims thereby to escape taxation for 
 the whole year, confessing at the 
 same time that this monetary in- 
 vestment was made with no other 
 
EXEMPTIOX FROM TAXATION. 
 
 319 
 
 to hold the national securities to ordinary taxable money 
 and property, for the reason that they are exempt from taxa- 
 tion. It is his right and privilege to do so.^ In most cases 
 
 view than that of escaping its duty 
 of contributing totlie support of the 
 state government. Tliat such con- 
 duct is a fraud in fact, as well as in 
 intention, seems too plain for argu- 
 ment." The decision is placed upon 
 the ground that the transaction was 
 not bona fide an investment in 
 treasury notes, and that it is the 
 right and power of the court to look 
 into tlie real character of tlie trans- 
 action and measure the rights of the 
 parties thereby. Tlie court admits 
 that a party may invest his means in 
 U. S. treasury notes or bonds for 
 the purpose of escaping taxation, 
 hut that it must be a bona fide and 
 not a sliam transaction. " We must 
 not be understood as holding that 
 government bonds are taxable merely 
 hecause the motive for tlieir purchase 
 v/as to escape taxation. Neither do 
 we intimate tliat they must be held 
 for any particular time, or bebouglit 
 with any intention of holding them 
 for any period whatever. They may 
 be bought solely because of their 
 non-taxable character, and disposed 
 of at the very earliest practicable 
 moment, and such purpose will not 
 subject tliem to taxation. We con- 
 fine ourselves to the point at issue, 
 and limit our decision to the facts 
 before us, and we declare that when 
 the capital of a banking institution, 
 used througliout the year in the con- 
 duct of its business, is converted for 
 a few days into government securi- 
 ties for the express purpose of de- 
 feating the imposition of any or all ' 
 taxes, such investment is colorable 
 and fraudulent, and its capital re- 
 mains taxable to the same extent 
 and in the same manner as if such 
 conversion had never taken place. 
 In such case the tenure by whicli 
 they are held, being a fraud and a 
 
 cheat, will be disregarded, and the 
 hankers will be considered as still 
 the owners of the property which, 
 for the moment, they liave attempted 
 to hide beneath the protection of the 
 general government. If this con- 
 struction of the law be not the true 
 one, then the bankers of tlie coun- 
 try, by a judicious shifting of these 
 securities from city to city, and from 
 state to state, so as to meet in each 
 the day of assessment, may enor- 
 mously multiply their quality, and 
 tliereby escape in the aggregate the 
 burdens of taxation upon property 
 to an amount infinitely beyond the 
 total sum of these securities in ex- 
 istence. We cannot think that such 
 was the intention of the federal gov- 
 ernment, or that the states are pow- 
 erless to protect themselves against 
 such a scheme." Holly Springs Sav. 
 and Ins. Co. v. Supervisors, 52 Miss. 
 281; (s. c, 24 Amer. Eep. 669.) 
 
 ^ Exchanging money or property 
 for non-taxable securities. In cor- 
 roboration of the doctrine conceded 
 in tlie above opinion, tlie right of a 
 party to invest his money or means 
 of any kind in non-taxable securi- 
 ties, is the case of Stilwell v. Cor- 
 win, where a man took from bankers 
 for liis money on deposit a certificate 
 of deposit for a stated amount, re- 
 turnable on demand in U. S. bonds. 
 His administrator made demand for 
 tlie bonds, but return was refused, 
 and in defense to an action which 
 .was brought to recover their value, 
 it was set up as a defense that no 
 U, S. bonds, or other bonds, were in 
 fact received, but that the obligation , 
 was executed and received to enable 
 the obligee, named in the certificate, 
 to avoid taxation on that amount of 
 money on deposit with the defend- 
 ants as bankers, and to cheat and 
 
320 
 
 THE LAW OF ASSESSMKNTS. 
 
 the money or pi-opertj^ exchanged, would be taxable in 
 the hands of the person receiving them. It would only 
 amount to a change of persons as to the taxable or non- 
 taxable property. The state would have the same prop- 
 erty for revenue, in other hands. It is only when the 
 property exchanged is withdrawn from taxation, or sought 
 to be, by a pretext or a device, that the transaction becomes 
 a fraud against tlie state revenue laws, and for taxable pur- 
 poses is disregarded. 
 
 Sec. 175. Exemptions are personal privileges and cannot 
 be transferred.^Imm unity from taxation is, a personal privi- 
 lege and where a corporation's property is exempted by 
 virtue of the terms of its charter, creating a contract to 
 that effect, this immunity does not follow the property into 
 the hands of an assignee, or purchaser from the corpora- 
 tion,^ unless expressly so provided. It is within the power 
 that can exempt, to provide that the privilege of exemption 
 shall continue after a sale or purchase of the property ex- 
 empted. Another question is the duration of the privilege. 
 
 defraud the federal and state govern- 
 ment out of taxes on tliat amount of 
 taxable property. Demurrer was in- 
 terposed to this matter of defense, 
 and sustained. The appellate court 
 sustained the ruling of the court be- 
 low, and in answer to that matter as 
 constituting a defense, used the fol- 
 lowing language: " It is insisted by 
 the appellants that the agreement, 
 set out in the first paragraph of the 
 complaint, was made for the purpose 
 of avoiding the payment of taxes for 
 the year 1866, on money on deposit 
 in the Citizens' Bank, as alleged in 
 the first paragraph of their answer, 
 and, therefore, that it is fraudulent 
 and void; and also, that the agree- 
 ment, for the same reason, is void as' 
 being against public policy. We 
 cannot perceive wherein the agree- 
 ment is void for either cause. Any 
 person has a right to exchange money 
 on deposit in a bank for bonds of the 
 United States at any time, even if 
 the express purpose in the transac- 
 
 tion was to exchange money which 
 was taxable for bonds which were 
 not taxable. Nor would the destruc- 
 tion of the certificates of deposit" 
 (held for the money exchanged), 
 "make, the slightest difference, for 
 they would be cancelled by the ex- 
 change. The money given for the 
 bonds was taxable for the year 1866, 
 either in the hands of the Stilwells" 
 (Citizens' Bank), "or in the hands 
 of Makepeace" (obligee named In 
 certificate. ) " The revenue is, there- 
 fore, not defrauded. And, although 
 no bonds actually passed in the 
 transaction, yet if Makepeace chose 
 to take the obligation of the Stil- 
 wells for the delivery of the bonds, 
 instead of the bonds themselves, it 
 will not change the character of the 
 transaction." Stihvell v. Corwin, 55 
 Ind. 433; (s. c, 23 Amer. Eep. 674). 
 1 Morgan v. Louisiana, 93 Otto (U. 
 S.) 223; Worth v. Wilmington & 
 Weldon K. K. Co. 45 Amer. R. 686. 
 
EXEMPTION FEOM TAXATION'. 
 
 821 
 
 Where the exemption is supported by a contract creating a 
 vested right, unless prohibited by organic law, the exemp- 
 tion may be made perpetual.^ 
 
 Sec. 176. 'When Szemption may, or may not be revoked. — 
 Where the exemption exists upon tlie mere authority of a 
 statute or general law, and does not enter into the terms of 
 the charter or law authorizing the organization of the corpo- 
 ration, the same power that creates tlie exemption, may at 
 any time change, modify or repeal the law. An exemption of 
 a corporation from taxation, by authority of an act of the 
 legislature, unless it form part of a contract between the 
 corporation and the state, may be repealed.^ But if the ex- 
 emption constitutes part of the charter of the corporation, it 
 becomes a vested right and cannot be taken away by subse- 
 quent legislation.* General exemption laws, i. e., applying 
 generally to all of one or more classes of property, such as 
 
 ^Himiplirey v. Fergus, 16 Wall. 
 244. 
 
 ' Buffalo City Cemetery v. Buffalo, 
 40 N. Y., 506. 
 
 2 St. l/ouls &c. E. E. Co. V. Loftin, 
 30 Ark. 693. 
 
 8 Oliver v. Memphis &c. E. E. Co. 
 30 Ark. 128; Hewitt. New Tork <S:c. 
 K. E. Co., 12 Blachf. 452. The ex- 
 emption clause of the Wilmington 
 and Ealeigli Kailroad Company, 
 (afterwards changed to " Wilming- 
 ton* Weldon Eailroad Company,") 
 was in the following language: "All 
 property purchased by the said pres- 
 ident and directors, and that which 
 may be given to said company, and 
 the works constructed under the 
 authority of this Act, and all profits 
 accruing on said works, and the said 
 property, shall be vested in the re- 
 spective shareholders of said com- 
 pany and their successors and as- 
 signs forever, in proportion to their 
 respective shares, and the shares 
 shall be deemed personal property, 
 and the property of said company 
 and the shares therein shall be ex- 
 empt from any public charge or tax 
 whatsoever." The state of North 
 21 
 
 Carolina sought to disregard this 
 provision of exemption, and assessed 
 the corporation's property, and being 
 about to sell it for non-payment of 
 the tax, an injunction was obtained. 
 Two points were relied on to sustain 
 the tax — 1. That the power of taxa- 
 tion constitutes part of the state's 
 sovereignty and cannot be surren- 
 dered for an indefinite period : 2. 
 That the franchise of the corpora- 
 tion was not included in the exemp- 
 tion, and was property subject to 
 taxation. The court however held 
 that this provision of the charter 
 created a contract, which could not 
 be revoked or annulled by subse- 
 quent legislation; that where the 
 power to tax appeared clearly to 
 to have been relinquished, there 
 was no remedy, if there was no re- 
 straint upon the legislative power 
 making such relinquishment. 3. 
 That while the fi-anchise constituted 
 property being " the privilege of 
 running the railroad and taking fare, 
 and freight," it was equally with 
 the other "property covered by the 
 general term, ' the property of the 
 company,' and therefore equally 
 
322 
 
 THE LAW OF ASSESSMENTS. 
 
 property used for religious, educational or charitable purposes, 
 may be changed, modified, or repealed, as any other law en- 
 acted upon -the grounds of public polic}', public conveni- 
 ence, or necessity. The same may be said of any special law 
 creating an exemption applicable to any specified property.* 
 The" same principles governing retrotractive laws, apply to 
 all laws which attempt to change, modify or repeal laws 
 providing for the exemption of property from taxation. If 
 the exemption exists by virtue of legislation which creates 
 a contract between the state and the person or corporation 
 claiming it, and was wlien enacted not repugnant to any 
 constitutional inhibition, it is not within the power of the 
 legislature by subsequent legislation to repeal or change the 
 exemption.^ On the contrary, if there was no consideration 
 for the exemption ; if the person or corporation upon whom 
 this immunity was conferred, was required to do nothing in 
 return for the privilege ; the statutes conferring them belong 
 to that class of contracts wiiich, as between individuals, are 
 
 •within the protection of tlie cliar- 
 ter." Wilmington Kailioad v. Reid, 
 33 Wall. 266. The same question 
 was afterwards litigated in the con- 
 struction of a statute passed by the 
 state of iSTorth Carolina, providing 
 for the assessiinent and taxation of 
 railroad corporations and their prop- 
 erty and earnings, wherein the same 
 corporation was a party. The at- 
 tempt was made to tax tliis corpora- 
 tion, and others of its class, one 
 per cent, upon its gross receipts; 
 but the Supreme Court of North 
 Carolina held the tax to be illegal. 
 After noticing the various provisions 
 of the act providing for the tax, the 
 court said : " If the tax be upon tlie 
 gross receipts, not upon the exercise 
 of its franchises by which they are 
 earned, as a fund accumulated 
 thereby, it is most clearly a tax upon 
 personal property owned and undis- 
 tributed. . . . The act of incorpora- 
 tion brings a new person into exist- 
 ence, and defines and prescribes its 
 facilities and privileges, and while 
 
 in the absence of a contract that it 
 shall not be done, these may be taxed 
 as are professions and trades, yet 
 the state may, by explicit and un- 
 mistakable words, and for a consid- 
 eration, part with the power, so that 
 its attempted resumption would 
 come in contact with a provision of 
 the Federal Constitution." Worth 
 V. Wilmington & Weldon K. Co., 
 (ISr. C.) 45 Amer. R. 679. But if ■ 
 the exemption does not constitute 
 part of the organic law of the cor- 
 poration, nor any contract between 
 the state and the corporation, but 
 is a mere voluntary act on the 
 part of the sovereignty, a mere 
 "expression of legislative voli- 
 tion, and not embodying the ele- 
 ments of a contract," the exemp- 
 tion may be recalled or revoked at 
 any time. Id. 685. 
 
 * Rector &c. Christ Church v. 
 Philadelphia, 24 How. U. S, 301; 
 Tucker v. Furguson, 22 Wall. 573. 
 
 ''Harvard College v. Boston, lOi 
 Mass. 470. 
 
EXEMPTION FROM TAXATION. 
 
 32S 
 
 styled nude pacts. The fact that the state is one of the 
 parties, gives them no higher character. Being the prom- 
 ises of a gratuity, spontaneously made, they may be kept, 
 changed, or recalled at pleasure.® An act exempting one 
 thousand dollars in value, of a soldier's property, during 
 the period of his enlistment, may be repealed at any time, 
 and the exemption falls with the repeal.''* 
 
 Sec. 177. Property of one Municipal Corporation not tax- 
 able by another. — The question was presented, in the case 
 of the city of Rochester against the town of Rush^ whether 
 property owned and used by one municipal corporation, sit- 
 uated in another, was exempt from taxation by the munici- 
 
 « Tucker v. Ferguson, 21 "Wall, 573 ; 
 West Wis. E. Co. v. Trempalean Co., 
 93 Otto (U. S.) 595. 
 
 ' People ex rel. v. Roper, 35 N. Y. 
 629 : People ex rel. v. Assessors of 
 Brooklyn, 84 N. Y. 610; Ramsey ». 
 Hagar, 76 111. 441; Cooley Con. 
 Lira. 383. 
 
 * The question of the power of the 
 legislature to revoke or repeal ex- 
 emption laws was discussed in tlie 
 opinion of Justice Campbeli, in 
 the case of Christ Church, &c. v. 
 The County of Philadelphia (24 
 How. U. S. 301), which involved the 
 following facts: In 1833 the legisla- 
 ture of Pennsylvania passed an act, 
 which recited that Christ Church 
 Hospital, in the city of Philadelphia, 
 liad for many years afforded an asy- 
 lum to numerous poor and distressed 
 widows who would probably else 
 have become a public charge, &c., 
 and enacted "that the real prop- 
 erty, including ground rents, now 
 belonging and payable to Christ 
 Church Hospital, in the city of Phil- 
 adelphia, so long as the same shall 
 continue to belong to the said hospi- 
 tal, shall be and remain free from 
 taxes." 
 
 In the year 1851 the same au- 
 thority enacted, " that all property, 
 real and personal, belonging to any 
 association or incorporate company, 
 
 which is now by law exempt from 
 taxation other than that which is in 
 the actual use and occupation of 
 such association or incorporated com- 
 pany, and from which an income or 
 revenue is derived by the owners 
 thereof, shall hereafter be subject to 
 taxation in the same manner, and 
 for the same purposes, as other prop- 
 erty is now by law taxable, and so 
 much of any law as is hereby altered 
 and supplemented, be and the same is 
 hereby repealed." It was claimed 
 that the exemption created by the 
 act of 1833 was perpetual, and could 
 not be, and was not repealed by the. 
 act of 1851 ; but the court held that 
 this concession (act of 1833), was 
 spontaneous; no service, duty, or 
 other remunerative condition, being 
 imposed on the corporation; and 
 that it belonged to tlie class of laws 
 denominated privilegia favorabilia ; 
 that while it may bo said that all 
 laws are framed with a view to per- 
 petuity, it does not follow that they 
 are irrevocable. That the narrowest 
 meaning should be given to the act, 
 which will carry out the intent of 
 the legislature, and that the privilege 
 conferred by the act of 1833 might 
 be revoked at the pleasure of the 
 sovereign. See also Commonwealth 
 V. Bird, 12 Mass. 446. 
 ' 80 N. Y. 303. 
 
324 THE LAW OF ASSESSMENTS. 
 
 pal corporation where it was not owned, but in wliicli it 
 was situated. The facts were, that the city of Rochester 
 purchased land and erected a reservoir and water works in 
 the town of Rush, for the purpose of supplying the city of 
 Rochester "with a supply of pure and wholesome water 
 for the use of its inhabitants and the extinguishment of 
 fires" and when erected, these water works were used for 
 that purpose. The water was charged for and the revenues 
 accruing from sales of water paid into the city treasury to 
 meet a loan contracted for the construction of tlie works ; 
 the assessors of the town of Rush assessed the property 
 located in that town for taxes, and the court held that no 
 tax could be imposed on this property, the same being wholly 
 devoted to public use. The mere fact that this property 
 was located outside of tlie city of Rochester and within an- 
 other tax district, was held not to change the character of 
 the property so as to render it liable to taxation. 
 
 Sec. 178. "WTiere Property is exempt as to Part only. — 
 — Exemption laws " though beneficent in their objects, are 
 in derogation of equal rights, and must be strictly con- 
 strued." ^ Where the statute exempts from taxation the 
 property of societies incorporated within the state for reli- 
 gious, moral, and charitable purposes, and a society organized, 
 and incorporated under the laws of the state, " for the pur- 
 poses of moral and intellectual improvement," purchased a 
 lot and erected a three story building thereon, occupied and 
 used the second and third stories for such uses and purposes 
 but leased the first story and cellar, only the part used by 
 the society was held to be exempt from taxation.^ Where the 
 first story is let and used for stores, and the second story as a 
 place of religious worship, only the second story is exempt.' 
 Where the exception is in the words, "not leased ... or 
 otherwise used with a view to profit," the exemption is not 
 forfeited where part of the land is used for an orchard, 
 vegetable garden, raising cereals, and producing fuel for the 
 institution exempted.^ 
 
 1 Cincinnati College v. Tlie State, 'Proprietors of Meeting House r. 
 19 Ohio, 110. City of Lowell, 1 Met. 538. 
 
 2 Detroit Young Men's Society ». * The Monticello Female Seminary, 
 Mayor, 3 Mich. 180-182. an institution of learning, was origi- 
 
EXEMPTION FEOM TAXATION. 
 
 325 
 
 Sec. 179. 'When exemption begins and ends. — When prop- 
 erty is exempted from taxation by reason of the use to 
 which it is appropriated or applied, the exemption dates 
 from the beginning of snch use and continues only so long 
 as the property is used for the purposes which created or 
 worked the exemption, unless the exemption be a vested 
 right. Where a charitable or otlier corporation is author- 
 ized to purchase and hold real property for specified 
 purposes, and such property, when occupied for such pur- 
 poses, is exempted from taxation, the exemption will relate 
 back to the date of acquiring and entering into the real 
 estate purchased by the corporation, and the erection of a 
 building thereon. Between the dates of purchase and of 
 the actual occupation of the building, subsequently erected 
 thereon, the property is not assessable.^ 
 
 Sec. 180. Omission to Tax — is not exemption. — It is within 
 the prerogative of the sovereignty to include all taxable 
 
 nally located on about eight acres, 
 but afterwards acquired forty acres 
 more; all the land, except one 
 block, was enclosed in the common 
 enclosure of the seminary grounds, 
 having division fences, by which 
 part was used for gardening, to sup- 
 ply the seminary with vegetables, 
 part for an orchard, to supply fruit, 
 part for raising com, hay and oats, 
 to feed the stock connected with the 
 institution, and part was kept as 
 pasture and wood land, used for a 
 similar purpose. The statute was 
 that, " all property of institutions 
 of learning, including the real estate 
 on which the institutions are loca- 
 ted, not leased by such institutions, 
 or otherwise used with a view to 
 profit, shall be exempt from taxa^ 
 tion." All the property of this semi- 
 nary was held to be exempt. Mon- 
 ticello Seminary v. The People, 106 
 111. .399. 
 
 ^ An association was incorporated 
 for the purpose of establishing and 
 maintaining a hospital for the treat- 
 ment of women and children, and of 
 giving therein clinical instruction to 
 
 female students of medicine, and of 
 training nurses ; for which purposes 
 it had power to take and hold real 
 estate, not exceeding in value $150,- 
 000, and personal estate not exceed- 
 ing same value; April 13th, 1871, a 
 committee of the corporation pro- 
 cured a lot, which was on the 25th of 
 April, 1871 , conveyed to the corpo- 
 ration; April 15th, 1871, an architect 
 had been employed, who, previous 
 to May 1st, 1871, viewed the lot to 
 locate the hospital, and on May 8th 
 sent in his plans to the corporation; 
 the plans were approved May 27th, 
 the lot staked off preparatory to 
 digging for the foundation, and 
 thereafter the work of building the 
 contemplated hospital, was prose- 
 cuted with due diligence; after com- 
 pletion, occupied and used for the 
 purposes authorized by the charter. 
 On May 1st, 1871, the property was 
 assessed for taxes, and a tax of 
 $325.88 charged against the same, 
 which was paid, and suit brought to 
 recover the money back. The court, 
 upon the facts stated, held, that the 
 land must '■ be deemed to have been 
 
826 
 
 THE -LAW OF ASSESSMENTS. 
 
 property within the state. The mere omission to include 
 in the revenue laws any class or character of taxable prop- 
 erty does not constitute an exemption, however long such 
 omission may have existed. It is the privilege of the law- 
 making power, at any time, to include any property not 
 previously taxed.^ 
 
 occupied by the corporation for the 
 charitable purposes for which it was 
 incorporated" at the date of the as- 
 sessment. New England Hospital 
 V. Boston, 113 Mass. 518. Where a 
 corporation's property was exempted 
 for ten years, "after tlie completion 
 of its road," the exemption com- 
 mences after the cpmpletion of the 
 railway. Ante, § 160. 
 
 ^ Where no provision existed for 
 the taxation of state lands sold on a 
 credit, between the date of sale, and 
 full payment of the purchase money. 
 
 and conveyance by the state to the 
 purchaser, and such lands were not 
 in fact taxed until after conveyance 
 thereof by the state, it was held 
 competent for the legislature to pro- 
 vide for the assessment and taxation 
 of such lands immediately after the 
 sale; and that the law took effect 
 upon lands which had been sold on 
 a credit at the time of the passage 
 of the act, and had not been fully 
 paid for, and were not conveyed by 
 the state. Robertson v. Land Com- 
 missioners, 44 Mich. 275. 
 
EQUALITY AND UNIFOnMITY. 327 
 
 CHAPTER XV. 
 
 EQUALITY AND UNIFOEMITT. 
 
 Sec. 185. Absolute Equality in Taxation, not Attainable. — 
 — Taxation must be equal and uniform. Equality and uni- 
 formity applied to taxation means that taxes shall be levied 
 upon all persons and upon all classes of taxable property 
 by a uniform rate, so that no one person shall be required 
 to pay anj' more, or exonerated from paying any less, than 
 his proportionate shnre of the expenses of the government, 
 measured by the value of the property as compared with 
 the value of the property of every other person within the 
 tax district. There must be no discrimination iu the rate 
 of taxation between real and personal property ; nor between 
 the property of a resident and non-resident owner. But 
 when legislation reaches all of a class of property, and 
 makes no distinction between persons, nor as to different 
 classes of property, it sufficiently satisfies all constitutional 
 and statutory requirements of equality and uniformity.^ 
 Perfect equality in the apportionment of the burdens of 
 taxation, it is conceded, is unattainable. "Uniformity iu 
 taxing implies equality in the burden of taxation, and this 
 equality of burden cannot exist without uniformity in the 
 mode of assessment as well as in the rate of taxation.''^ The 
 
 1 " It is to be remembered that per- false and unjust principles, or ope- 
 
 fect equality in the assessment of rate to produce gross inequality, so 
 
 taxes is unattainable. Approxima- that they cannot be deemed in any 
 
 tiou to it is all that can be had. just sense proportional in their ef- 
 
 Under every System of taxation, feet on those who are to bear public 
 
 however wisely and carefully charges, that courts can interpose 
 
 framed, a disproportionate share and arrest the course of legislation 
 
 of the public burden will be thrown by declaring such enactments void." 
 
 on certain kinds of property, be- Commonwealth v. The People's Five 
 
 cause they are visible and tangible, Cent Savings Bank, 5 Allen 436. 
 
 while others are of a nature to elude ' Exchange Bank of Columbus V. 
 
 vigilance. It is only where statutes Hines, 3 Ohio St. 1. 
 are passed which impose taxes on 
 
323 THE LAW OF ASSESSMEKTS. 
 
 equality wliich satisfies the requirements of- law has been 
 well defined by an eminent jurist, in the following language: 
 " A tax is equal and uniform wliich reaches and bears with 
 the like burden upon all the property within the given district, 
 conuty," etc. " It bears the like burden when the valuation 
 of each parcel is ascertained in the same mode — the mode 
 prescribed by law — and when it is subject to the same rate 
 of taxation as other property within the district, county,"^ 
 etc. Provision is made in nearly all state constitutions and 
 revenue laws, for a system of uniformity and equalit}' in the 
 mode of assessment and rate of taxation. The words 
 "equal"' and "uniform" when used in this connection have 
 the same meaning. If the property of A, worth one thou- 
 sand dollars, is assessed and taxed at the same rate as is the 
 property of B, worth ten thousand dollars, both are assessed 
 and taxed equally and uniforml}-, because neither is requii'ed 
 to contribute any more than his just proportion to the public 
 burdens and charges. But if A's property be assessed and 
 taxed by a rate different from the rate applied to B,'s, the 
 assessment and taxation would not be uniform and would 
 be unequal. "If the rate of assessment and taxation be 
 equal, it is conceived it will be uniform ; that is, that no 
 meaning can be attached to the word ' uniform ' which is 
 not conveyed by the word ' equal.' If the rate is everywhere 
 equal or the same, it will be uniform, necessarily. If tlie 
 rate is varied so that property of different kinds or in diff- 
 erent localities is valued or taxed at different rates, the rate 
 will be unequal, and so not uniform ; and so far as it is 
 equal it will also be uniform." * 
 
 'People V. Whyler, 41 Cal. 355. portion to such benefits." Eoose- 
 
 Justice Earl, in discussing tlie lia- velt Hospital !). Mayor, 84 N. Y. 112. 
 
 bility of property which is by law * It was held, however, that a stat- 
 
 exempted from general taxation to ute providing for the assessment and 
 
 assessment for local improvements taxation of mortgages made upon 
 
 which are supposed to benefit the lands situated in one county only, 
 
 pro'perty assessed, used the follow- creating such mortgages real estate, 
 
 ing language as to the required or an interest in real estate, taxable 
 
 equality of this kind of taxation: to the mortgagee without respect to 
 
 "They" (assessments) "are justi- his actual residence, and to that ex- 
 
 fied only because the irapiovemenls tent deducting the mortgage value 
 
 confer special benefits, and are just from the land value, and taxing only 
 
 only when they are divided in pro- the balance of the land value to the 
 
EQUALITY AND UNIFOEMITT. 
 
 323 
 
 Sec. 186. Equality and Uniformity must include Valuations. 
 — The theory of equality and uniformity in taxation is not 
 possible wiihout uniformity in the mode of making valua- 
 tions.^ The rate may apply alike to all property and per- 
 sons within the district or state, but if the property of 
 different persons of equal value be estimated at different 
 values, there can be no equality or uniformity in the taxa- 
 tion.^ It may be conceded that but few classes of property 
 have the same value, yet almost every article of personal 
 property and parcel of real estate has a relative value to 
 
 mortgagor, notwithstanding it did 
 not include mortgages then exist- 
 ing, including lands situated in two 
 or more counties, was not repugnant 
 to the constitutional requirement 
 of uniformity and equality. The 
 grounds upon which this decision is 
 based is the power of the legislature 
 to fix the situs of all property for the 
 purposes of taxation. The court 
 say the legislature, by this statute, 
 merely varied " the mode of taxa- 
 tion of one-county mortgages from 
 that of two-county mortgages" — re- 
 marking as to the latter: "The 
 debt which the two-county mortgage 
 is given to secure is in fact taxable 
 under prior revenue laws in the 
 county where the mortgagee re- 
 sides." Crawford v. Linn County, 
 5' rac. Kep. 738. (Or.) This case 
 conflicts with Dundee Mortgage 
 Trust Company v. School District 
 No. 1 (2 West Coast R. 241), decided 
 in the U. S. District Court of Ore- 
 gon, construing the same provisions 
 of this statute. After noticing the 
 provisions of the constitution of 
 Oregon, Justice Dbady held that 
 the statute " taxes mortgages on 
 land in no more than one county, 
 and exempts those on land in more 
 than one county. The mortgage 
 taxed and the mortgage not taxed, 
 and the property affected by them, 
 are in all essentials the same. The 
 only difference between them . . . 
 in the one case the land is all in one 
 
 county, and in the other is in two or 
 more." 
 
 ^ " Uniformity in taxing implies 
 equality in the burden of taxation, 
 and this equality of burden cannot 
 exist without uniformity in the 
 mode of assessment as well as in the 
 rate of taxation." Exchange Bank 
 of Columbus V. Hines, 3 Ohio St. 1. 
 
 ^ "As the foundation of all just 
 and equal taxation is the assessment 
 of the property taxed, that is, the 
 ascertainment of its value, in order 
 that the tax may be levied accord- 
 ing to some ratio to the value, uni- 
 formity of taxation necessarily re- 
 quires uniformity in the mode of 
 assessment as well as in the rate of 
 taxation." San Mateo County v. 
 Southern P. R. R. Co. 8 Sawyer, 254. 
 Speaking with reference to the pro- 
 vision in the constitution of Cali- 
 fornia, for deducting indebtedness 
 secured by mortgage, from the valua- 
 tion of the land mortgaged, when the 
 land is owned, and the mortgage 
 given by a natural person — but this 
 privilege of deducting, under like 
 circumstances, being denied, wlien 
 the land is owned and the mort- 
 gage given by a railroad corpora- 
 tion — the learned judge in the same 
 case further said: "If we look at 
 the scheme of taxation prescribed 
 by the constitution of California for 
 the property of railroad companies, 
 we shall perceive a flagrant de- 
 parture from the rule of equality 
 
330 
 
 THE LAW OF ASSESSMENTS. 
 
 the other property of the same class within the same district. 
 The fixing of values in the first instance is within the prov- 
 ince of the assessor, subject to be changed by the board of 
 equalization. Where the statute requires values to be 
 fixed upon view of the propert}-, a valuation based on 
 location would violate the statute and would not conform 
 
 and uniformity, so essential to 
 equality In the distribution of the 
 burdens of the government. When- 
 ever an individual holds property 
 incumbered with a mortgage, lie is 
 assessed at its value, after deduct- 
 ing from it the amomit of the mort- 
 gage. If a railroad company holds 
 property subject to a mortgage, it is 
 assessed at its full value, without 
 any deduction for the mortgage; 
 that is, as though the property were 
 unincumbered. The inequality and 
 discriminating character of the pro- 
 cedure will be apparent by an illus- 
 tration given by counsel. Suppose 
 a private person owns a farm which 
 is valued at $100,000, and is incum- 
 bered with a mortgage amounting to 
 $80,000, he is, in tliat case, assessed 
 at $20,000; if the rate of taxation be 
 two per cent, he would pay $400 
 taxes. If a, railroad corporation 
 owns an adjoining tract worth $100,- 
 000, which is also incumbered by a 
 mortgage of $80,000, it would be 
 assessed for $100,000, and be re- 
 quired to pay $2,000 taxes, or five 
 times as much as the private person. 
 There is here a discrimination too 
 palpable and gross to be questioned, 
 and such is the nature of the dis- 
 crimination made against the South- 
 ern Pacific Railroad Company in 
 the taxation of its property. Koth- 
 ing can be clearer than that the rule 
 of equality and uniformity is thus 
 entirely disregarded." Id. 254-255. 
 By the statute of New York a citizen 
 tax-payer who had money Invested 
 otherwise than in national bank 
 shares, was permitted to deduct 
 therefrom the amount of his indebt- 
 
 edness, and was assessed and taxed 
 only on tlie balance, whereas the own- 
 er of shares in national banks was re- 
 quired to pay taxes on the value of 
 his shares without any such deduc- 
 tion. But it was held, in the case 
 of People V. Weaver (100 TJ. S. Kep. 
 54.3), that this worked "a discrim- 
 ination against the national bank 
 shares as subjects of taxation un- 
 favorable to the owners of sucli 
 shares." Speaking further of the 
 act of congress allowing the shares 
 of national banks to be taxed by tlie 
 states, and after quoting the limita- 
 tion accompanying this privilege, 
 which is in these words, " Taxation 
 shall not be at a greater rate than is 
 assessed upon other moneyed capi- 
 tal in the Iiands of individuals," the 
 court add as follows : " Seizing upon 
 the word ' rate ' in this sentence, as 
 if disconnected from the word ' as- 
 sessment,' and construing it to mean 
 percentage on any valuation tliat 
 might be made, the Court of Ap- 
 peals (of New York) arrive at the 
 conclusion that since tliat percent- 
 age is the same in all cases, the act 
 of congress is not infringed. If tliis 
 philological criticism were perfectly 
 just, we still think the manifest purr 
 pose of congress in passing this law 
 should prevail. We have already 
 shown what that was. But the 
 criticism is not sound. The section 
 to be construed begins hy declaring 
 that these shares may be ' included 
 in the valuation of the personal pro- 
 perty of the owner, in assessing 
 taxes imposed by authority of the 
 state within which the association 
 is located.' This valuation, then, 
 
EQUALITY AXD UNIFORMITY. 831 
 
 to the 'doctrine of uniformity and equality.^ Where the 
 shareholders of state banks and other moneyed associations 
 and corporations are not allowed, as against the value of 
 their shares, any deductions on account of their indebted- 
 ness, and no deductions on account of indebtedness are 
 allowed as against tangible personal property, and where the 
 only deductions allowed are for interest-bearing indebted- 
 ness to the extent of interest-drawing credits and ordinary 
 indebtedness as against ordinary debts due, it was held that 
 a denial of deductions to a holder of national bank shares 
 was not in conflict with the law of congress in relation to 
 the taxation of national bank shares. In the same case it 
 was also ruled that if any exemption was allowable as 
 claimed, it was necessary to make the claim of exemption 
 before the assessment becomes absolute, i. e. to the assessor 
 or the board of equalization.* The mere fact that shares of 
 a national bank have been valued higher than shares of a 
 state bank of equal value, is not sufficient to defeat the 
 assessment. The question is " Did the assessors habitually 
 and intentionally, or by some rule prescribed by themselves 
 or by some one whom they were bound to obey, assess 
 the shares of the national banks higher in proportion to 
 their actual value than other moneyed capital generally." ^ 
 
 is part of the assessment of taxes. Joseph v. Township of St. Joseph, 
 
 It is a necessary part of every assess- 9 N. W. Rep. 839. (Mich. ) 
 ment of taxes which is governed by ' Where there were nine banks in 
 
 a ratio or percentage. There can be the ward, seven of which were na- 
 
 no rate or percentage without a tional and two were state banis, and 
 
 valuation. What is it that shall not the shares of the national banks 
 
 be greater ? The answer is — taxa- were assessed at a rate of assessment 
 
 tion. In what respect shall it not equal to "77 per cent, of their actual 
 
 be greater than the rate assessed value, and the state banks, one at 
 
 upon other capital? We see that 100, the other at .35 per cent., it was 
 
 congress had in its mind an assess- held that such assessments did not 
 
 ment, a rate of assessment, and a furnish evidence sufficient to invali- 
 
 valuation, and, taking all these to- date the assessment of the national 
 
 gether, the taxation on these shares bank shares. Stanley v. Board Su- 
 
 was not to be greater than on other pervisors Albany County, 15 Fed. 
 
 moneyed capital." Id. 543-5.54. This Kep. 485 (N. T.). Where a statute 
 
 case was aflarmed in Evansville Bank of Wisconsin provided for the as- 
 
 V. Britton, 105 U. S. Kep. 322. sessment of all personal property 
 
 8 Hersey v. Barron County, 37 with reference to its value on the 
 
 Wis. 77. first day of May of each year, and 
 
 * First National Bank of St. that real properly might be assessed , 
 
332 
 
 THE LAW OF ASSESSMENTS. 
 
 If the assessor or person making assessments, adopts or 
 uses a rule or system of valuation by which one class or 
 character of property is assessed at its full cash, or par 
 value, while as to another class or character, or as to all 
 other taxable property, a rule or system is applied, by which 
 
 on any day between the first day of 
 May and the last Monday of June of 
 each year, a question arose whether 
 this statute violated the provision of 
 the constitution on the subject of 
 uniformity of assessments and taxa- 
 tion, and the court held that this 
 difference as to the time for assess- 
 ment of real and personal property 
 was not in violation of the constitu- 
 tion. After quoting from Plumeri). 
 Supervisors, 46 Wis. 163, the follow- 
 ing words — " it is sufficient to satisfy 
 the constitution that the rule of the 
 section provides for the valuation of 
 real property at its full value, and 
 that the assessor must use the best 
 practicable means of ascertaining 
 the value," the court used the fol- 
 lowing language in the construction 
 of this provision of the statute: "In 
 the above quotation we find the true 
 reason and scope of the constitu- 
 tional rule of uniformity. It was 
 ordained to secure intelligent assess- 
 ment upon uniform principle. To 
 secure this, differences of mere de- 
 tail in the process of assessment, 
 growing out of the nature of differ- 
 ent classes of property, is inevitable. 
 Such differences may tend to pro- 
 mote, rather than disturb, substantial 
 uniformity in the rule of taxation. 
 The assessment laws furnish illus- 
 tration of this proposition. For ex- 
 ample: specific chattels, such as 
 horses, cattle, carriages, etc., are 
 assessed as of the 1st day of May, 
 Their value on that day is the rule 
 of assessment. A man may own 
 valuable property of these kinds 
 during the whole assessment year, 
 but if the property is destroyed on 
 the last day of April, the owner can- 
 
 not be taxed thereon for that year. 
 On the other hand, a, person may 
 own or hold money, bonds, mort- 
 gages or other securities during the 
 same year, and may lose them all in 
 an unfortunate speculation, or other- 
 wise, in April, so that he has no 
 property of that kind on the first of 
 May following. Yet the statute re- 
 quires that he shall be taxed for that 
 year on the basis of the average value 
 of such property (less his indebted- 
 ness) so owned or held by him during 
 the year. Eev. St. p. 345. Here 
 there is a marked difference in the 
 modes of ascertaining the values of 
 the two kinds of property. In the 
 one case, the inquiry is whether the 
 person owns or holds the property 
 on the first day of May. If he does 
 not, the property is not assessed to 
 him for taxation, although he may 
 have owned it the day before. In 
 the other case, the inquiry is whetlier 
 he has owned or held the property 
 at any time during the preceding 
 year, and if he has, assessment fol- 
 lows on the basis of average value 
 during the year, although he may 
 not have a dollar, or a dollar's worth 
 of it on the first of May. Another 
 illustration of the same proposition 
 is found in the statute which allows 
 a deduction of debts owing by any 
 person from debts owing to him, in 
 fixing the value of credits for assess- 
 ment, while no such deduction is 
 allowed in the valuation of any 
 other property. True, the statute 
 puts the right of deduction in the 
 form of an exemption. (Kev. Stat. 
 p. 340, § 1038, § 10), but it results 
 all the same in establishing a basis 
 for the valuation of credits different 
 
EQUALITY AND TTNIFOEMITT. 
 
 333 
 
 the valuation is made at less than the cash value, the assess- 
 ment would be in violation of the law of uniformity and 
 equality, and the courts would relieve any party affected 
 by the inequality.* 
 
 from that upon which all other val- 
 ues are determined. We do not rec- 
 ollect to have heard the validity of 
 the above statutes denied or ques- 
 tioned, and do not now perceive any- 
 solid grounds for an assault upon 
 them. They were enacted with ref- 
 erence to the inherent qualities and 
 incidents of the property afEected by 
 them, and were intended to promote 
 equality and justice in taxation. 
 They authorize differences in mat- 
 ters of procedure and detail, that 
 there may be intelligent assessment 
 at just and uniform values, which, 
 as we have seen, is the uniform nile of 
 the constitution. . . . The legislature 
 enacted that personal property shall 
 be assessed as of May 1st, and real 
 estate may be assessed on any day 
 between May 1st and the last Mon- 
 day in June. We do not think the 
 different dates of assessment con- 
 travene the imiform rule of the con- 
 stitution, for the difference does not 
 interfere with, but doubtless was in- 
 tended to promote, honest and intel- 
 ligent assessment of both classes of 
 property, at the full value thereof." 
 Wisconsin Cent. K. Co. v. Lincoln 
 County, 15 N. W. Eep. 12-3^. (Wis.) 
 ^ A case in point originated in the 
 state of Ohio. It appeared that a 
 rule of valuation had been adopted 
 and applied, by which all real and 
 personal property, except money, 
 was assessed at one third of its ac- 
 tual value, and money or invested 
 capital at six tenths of its value, 
 and that the shares of incorporated 
 banks, as returned by the state board 
 of equalization for taxation to the 
 auditor of the county, was fully 
 equal to the selling prices of the 
 shares, and to their true value in 
 money. After reviewing the custom 
 
 of assessors, not only in Ohio, but 
 in other states, to disregard the con- 
 stitutional and statutory require- 
 ments, to value for taxation all prop- 
 eity at its " saleable value," " actual 
 value," "cash value," &c., and the 
 causes leading to such disregard of 
 the law as applied to real estate, the 
 court used the following language : 
 "But whatever may be its cause, 
 when it is recognized as the source 
 of manifest injustice to a large class 
 of property around which the con- 
 stitution of the state has thrown the 
 protection of uniformity of taxation 
 and equality of burden, the rule" — 
 (assessing different classes of prop- 
 erty by a different rule of valuation) 
 — "must be held void, and the in- 
 justice under it, must be remedied 
 so far as the judicial power can give 
 remedy. The complainant having 
 paid to defendant, or into the Cir- 
 cuit Court for his vise, the tax which 
 was its true share of the public bur- 
 den, the decree of the Circuit Court 
 enjoining the collection of the re- 
 mainder, is affirmed." Cummings 
 V. National Bank, 101 U. S. (9 Otto) 
 161. A suit was, subsequently to 
 the decision in Dundee M. T. & I. 
 Co. V. School District Ko. 1, brought 
 in the United States District of Ore- 
 gon by the same plaintiff against 
 Parish and others, to restrain the 
 collection of taxes upon addi- 
 tional grounds, the only one ap- 
 plying to the doctrine of equality 
 and uniformity being that the mort- 
 gages of plaintiff were valued and 
 assessed at their face or nominal 
 value of the debt secured, while the 
 land mortgaged and the other lands 
 of the district were assessed at but 
 one third of their value. Section 1, 
 Art. IX. of the Constitution of Ore- 
 
334 
 
 THE LAW OF ASSESSMENTS. 
 
 Sec. 187. Equality and TTniformity as between Counties, 
 Persons and Corporations. — The property of one county or 
 tax district cannot be taxed for the benefit of another ; nor 
 is it competent for the legislature to enact, that property 
 which is kept a portion of the j^ear in one county, and the 
 balance of the year in another, shall be assessed in one of 
 
 gon provides that " The Legislative 
 Assembly shall provide for uniform 
 and equal rate of assessment and tax- 
 ation," &c., and tlie statute relat- 
 ing to taxation requires property to 
 be assessed for taxation of land at 
 its " true cash value." (ch. 57, § 16, 
 Gen. Laws Or.) Ko payment or 
 offer of payment- of a, sum which 
 would be a reasonable assessment of 
 the mortgages lield by plaintiff as 
 compared with the valuation placed 
 upon the lands of the tax district, 
 was alleged in tlie complaint. This 
 complaint was met by a demurrer — 
 thus admitting the truth of these 
 allegations. It was objected for the 
 defendants that it must be shown 
 that the unequal assessments were de- 
 liberately intended, and that there 
 was a design on the part of the asses- 
 sor or assessors to make an unequal 
 assessment, but it was held that this 
 allegation was not necessary. The 
 following is tlie language of the 
 court: " But it is not necessary tliat 
 there should be any actual conspir- 
 acy or expressed design to disregard 
 llie law in tliis respect on tlie part of 
 the assessor, to render an assessment 
 illegal. Whenever the assessor of a 
 district of country as large as one 
 of these counties, uniformly esti- 
 mates real property at only one third 
 of the value he places on mortgages, 
 it is impossible to attribute the re- 
 sult to the infirmity of human judg- 
 ment, and the only conclusion possi- 
 ble in the premises is, that it was 
 deliberately and willfully done in 
 pursuance of a settled purpose or 
 rule on his part ; and where the same 
 thing occurs in a number of counties 
 
 in various parts of the state, it is 
 manifest that the action of the as- 
 sessors is not only willful and delib- 
 erate, but that it is the result of a 
 general and well understood custom, 
 to substitute this conventional value 
 of real property for ' the true cash ' 
 one, which the statute requires." 
 And as to the custom in Oregon 
 of undervaluing real estate, the 
 learned judge used the following 
 language: "Indeed, the practice is 
 so universal and well known that 
 the court might take judicial notice 
 of it and safely assume tliat there is 
 not an acre of land in Oregon that 
 is valued for taxation at more than 
 one half its ' true cash value,' and 
 that generally it is not valued at 
 more than one third of such value. 
 Nor is it a sufficient answer to this to 
 say, as counsel does, that land in 
 Oregon does not yield an income of 
 six per centum to its owners on its 
 assessed value. For the annual in- 
 come of land depends not alone or 
 largely on its value, but its use and 
 management. Probably two thirds 
 of the taxable land in Oregon is 
 unused, except as wild pasture. The 
 owners of this property do not ex- 
 pect any income from it, nor are they 
 entitled to any. But they are get- 
 ting the benefit, year by year, of its 
 enliancement in value, from the gen- 
 eral growth and improvement of the 
 country, to which they often contri- 
 bute but very little. But it is not 
 probable that the money of the 
 country yields an income of more 
 than six per centum. Certainly if it 
 is loaned at legal interest and pays 
 the usual taxes, It does not. Then 
 
EQUALITY AND TJNIFOKMITY. 
 
 •835 
 
 the counties, the taxes paid therein, and a moiety thereof 
 paid to such other county. All personal property must be 
 assessed in the county or district where it has its situs, and 
 tlie tax arising, thereon, it would seem, all belongs to the 
 county where it is assessed.^ The principle of equality and 
 
 there is always a considerable por- 
 tion of this capital lying idle, but 
 still subject to taxation. And yet in 
 the nature of things, personal prop- 
 erty, especially money, is more liable 
 to escape taxation than land, and 
 therefore it is, that in a country 
 governed largely by land owners, 
 like Oregon, there is more or less 
 undervaluation of land, upon the 
 specious plea, more understood than 
 expressed, that this is the only way 
 to keep even with the moneyed capi- 
 tal of the country and secure some- 
 tiling like an equality of burdens 
 between them. But, be this as it 
 may, the state scheme of taxation is 
 not based on the income derived 
 from property, but its 'true cash 
 value,' and therefore it is useless to 
 institute a comparison between the 
 productiveness of land and money. 
 Upon this phase of the case I am 
 inclined to think the plaintiffs are 
 entitled to relief against two thirds 
 of this tax, for if the allegations in 
 the bills are not sufficient as to the 
 deliberation and uniformity with 
 Avhich the land was undervalued by 
 the assessor, there is no doubt but 
 what they can be truthfully made 
 so." Dundee M. T. & I. Co. v. 
 Parish and others, U. S. Dist. Court, 
 Oregon, July l-Sth, 1885. It seems 
 now to be settled doctrine that where 
 the objection to an assessment is 
 based upon an inequality of valua- 
 tions, that the complaining party 
 must pay or tender payment of a 
 sum which would be the tax upon 
 an assessment based upon a proper 
 or uniform valuation. This was 
 done in the case of Curamings i). 
 National Bank {supra). But in the 
 
 case of Dundee M. T. & I. Co. v. 
 Parish, this was not done, and for 
 that cause only the injunction was 
 not allowed. The court, on that 
 branch of the case used the follow- 
 ing language: "But one of the 
 grounds of demurrer to these bills is, 
 that so far as this phase of the case 
 is concerned the plaintiffs are not 
 entitled to relief in these suits, be- 
 cause it does not appear that they 
 have paid or tendered so much of 
 the tax as it appears they ought to 
 pay. This objection is well taken. 
 In State Railway Tax Cases, 92 U. 
 S. 617, the Supreme Court, in con- 
 sidering this question, said that be- 
 fore a party can maintain a suit to 
 enjoin the collection of a tax he 
 ' must first pay what is conceded to 
 be due, or what can be seen to be 
 due on the face of the bill, or be 
 shown by affidavits, whether con- 
 ceded or not, before the preliminary 
 injunction should be granted. The 
 state is not to be thus tied up as to 
 that about which there is no contest, 
 by lumping it with that which is 
 really contested. If the proper officer 
 refuses to receive a part of the tax, it 
 must be tendered, and tendered with- 
 out the condition annexed of a re- 
 ceipt in full for .all taxes assessed. 
 . . . We lay it down with unanimity, 
 as a rule to govern the courts of the 
 United States in their action in such 
 cases.' To the same effect is the 
 mling in National Banlf v. Kimball, 
 103 U. S. 733, and in Huntington v. 
 Palmer, 7 Sawy. 335." 
 
 'The legislature of California 
 passed an Act "to regulate the 
 assessment of migratory herds or ' 
 bands of live stock, and to provide 
 
336 
 
 THE LATV OF ASSESSJIENTS. 
 
 uniformity of taxation is violated wlienever the attempt is 
 made by legislation to exempt corporations or their prop- 
 erty from taxation, or to exempt any class of persons on 
 account of age or sex or other cause, or to discriminate in 
 favor of any article, or class of property, by exempting it 
 from taxation.^ An attempt to discriminate in laj^ing a tax 
 
 for an equitable distribution of tlie 
 taxes derived tlierefrom." (Stat. 
 1873-4, p. 376). Tlie first section 
 required the assessor of tlie county, 
 when he assessed live stock to ascer- 
 tain from the owner whether any 
 portion during the year would be 
 moved to another county for pastur- 
 age, and if so, the number and value 
 and name of the county, and there- 
 upon to transmit a statement of the 
 cattle to be moved to another county, 
 to the county treasurer of such 
 county; and when the tax on such 
 property was paid, it became the 
 duty of such county treasurer to 
 present a demand on the county 
 treasurer of the county receiving 
 the tax, for one half thereof. The 
 court held this act to be repugnant 
 to the constitutional provision read- 
 ing that, " Taxation shall be equal 
 and uniform throughout the state. 
 AH property in this state shall be 
 taxed in proportion to its value, 
 to be ascertained as directed by law, 
 but assessors and collectors of town, 
 county and state taxes shall be 
 elected by the qualified electors of 
 the district, county or town in which 
 the property taxed for state, county, 
 or town purposes is situated." (Art. 
 XI. Sec. 13). The court based this 
 ruling upon the understanding or 
 theory that it was an attempt to tax 
 property having a situs in the county 
 where it was assessed, for the benefit 
 of a county where it did not have or 
 acquire a situs ; and that, it in legal 
 effect was an attempt to assess the 
 property of one county for the ben- 
 efit of another. " If the legislature 
 may deprive the county of part of 
 
 the tax derived from a particular 
 class of property, it may' dispose 
 entirely of the whole of such tax." 
 People V. Townsend, 56 Cal. 634, 
 637. Outside of this constitutional 
 restriction as to the election of 
 assessors, and which restriction was 
 not carried into the new constitution 
 of California, there seems to be no 
 good reason why an equitable ap- 
 portionment should not be made of 
 the tax derived from the assessment 
 of that class of migratory personal 
 property, which is protected an 
 equal portion of each year by two or 
 more counties, but with the above ex- 
 ception, no attempt has been made, 
 coming to the author's attention, to 
 apportion the taxes assessed against 
 any class of personal property ex- 
 cept as to railroads operated in two 
 or more counties, and telegraph lines 
 similarly situated and operated. 
 Equal apportionment of the taxes, 
 between the counties protecting the 
 property taxed, would be, perhaps, 
 the only legal obstacle to overcome. 
 ^ Cooley on Taxation, p. 153, says : 
 " It is difficult to conceive of an 
 exemption law which selects single 
 individuals or corporations, or single 
 articles of property and taking them 
 out of the class to which they be- 
 long, makes them the subject of 
 capricious legislative favor. Such 
 favoritism could make no pretense 
 to equality; it would lack the sem- 
 blance of legitimate tax legislation. 
 It is certain that municipal bodies or 
 taxing officers have no power to 
 make such exemptions, unless ex- 
 pressly empowered by legislation; 
 and to make any, would render in- 
 
EQUALITY AND UNIFORMITY. 88 « 
 
 upon a particular class, or a license tax upon a particular 
 class of the residents of the district or state, would violate 
 the principle of equality and uniformity as effectually as 
 to create an exemption.' 
 
 Sec. 188. The Fourteenth Amendment includes Corporations. 
 — It has already been expressly announced, as sound doc- 
 trine, that taxation must be equal and uniform, as to persons 
 and property. It would seem to follow as a logical conclusion 
 that any law, whether organic or statutorj^ which discrimi- 
 nates in making rules for the assessment of property for 
 taxation between natural persons and corporations, would 
 be violative of that general principle. While it is true 
 that a corporation is the creature of the state, it does not 
 follow that Its property is held subject to the arbitrary 
 power of the state. The power that can create, cannot 
 always destroy. Shoiild the law of the state provide that all 
 natural persons be entitled to have the amount of all debts 
 secured by mortgage on real estate deducted from the 
 assessed valuation of such real estate, and that only the 
 balance be included in the assessment for taxation, and 
 deny this provision and privilege under like circumstances 
 to corporations, would the law of equality and uniformity 
 of taxation as to persons and property, or the rate of assess- 
 ment, or the mode of ascertaining the value of the property 
 
 valid the whole tax roll on which public benefits." State v. Indian- 
 
 tlie exempted person or property apolis, 69 Ind. 378. 
 ought to have appeared." On this ^ Under a statute of California, a 
 
 point the Supreme Court of Iiidi- monthly tax of $2.50 was levied 
 
 ana used the following language: " upon each person, male and female, 
 
 "To exempt by law private prop- of the Mongolian race, of the age of 
 
 erty, owned by a private person and 18 years, residing in the state ' ' — ex • 
 
 used for a private purpose, on ac- cept, etc. The exception covered 
 
 count of the sex or domestic rela- those engaged in the production of 
 
 tiou of the owner, is a violation of sugar, rice, coffee and tea. A ma- 
 
 tlie constitutional principle, that tax- jority of the justices of the Supreme 
 
 ation shall be uniform and equal on Court held this statute to be uncon- 
 
 all property, both real and personal, stitutional, placing their decision 
 
 The common burdens of taxation upon the ground that the tax ope- 
 
 should be regulated by a fixed, gen- rated upon a class of persons, and 
 
 eral rule, apportioned and sustained also on the ground that it operated 
 
 by a uniform ratio of equality, as a restriction upon immigration. 
 
 Exemption from taxation should be and thus indirectly was a. tax upon 
 
 based on a well grounded public commerce. Lim Sing o. Washburn, 
 
 policy, by which all share in the 20 Cal. 564. 
 22 
 
338 THE LA"W OF ASSESSMENTS. 
 
 to be taxed be preserved? If natural persons are allowed 
 the privilege of deducting from the valuation of their 
 lands the amotint of indebtedness secured by mortgage 
 thereon, can that privilege be denied to corporations with- 
 out antagonizing the Fourteenth Amendment to the Consti- 
 tution of the United States? These questions are made of 
 practical importance bj' reason of provisions contained in 
 the 4th Section of Article 13 of the present constitution of 
 California, in these words: "A mortgage, deed of trust, 
 contract, or other obligation by which a debt is secured, 
 shall, for the purposes of assessment and taxation, be deemed 
 and treated as an interest in the property affected thereby, 
 except as to railroad and other quasi public corporations ; 
 in case of debts so secured, the value of property affected 
 by such mortgage, deed of trust, contract, or obligation 
 less the value of such security, shall be assessed and taxed 
 to the owner of the property, and the value of such security 
 shall be assessed and taxed to the owner thereof, in the 
 county, city, or district iu which the property affected 
 thereby is situate." It will be observed that natural per- 
 sons, under this provision, are entitled to have the amount 
 of all indebtedness secured by mortgage on their lands 
 deducted froni the valuation thereof and to be tax-ed only 
 on the balance ; but this privilege is denied to railroad and 
 other quasi public corporations. The provision means, that 
 when a natural person owns land worth ten thousand dol- 
 lars, and mortgages it to secure a debt of eight thousand 
 dollars, he is to be taxed on only two thousand dollars; and 
 when a railroad or other quasi public corporation owns land 
 worth ten thousand dollars, and mortgages it for eight thou- 
 sand dollars, it is to be taxed on ten thousand dollars. 
 This rule of taxation, as between natural persons and cor- 
 porations of the character stated, it is apparent is unequal. 
 The constitution of the United States being the paramount 
 law, if this provision denies to any person " the equal pro- 
 tection of the law " it can not be enforced. The first ques- 
 tion to be considered is, whether or not a corporation is 
 included within the word "person," as used in the Four- 
 teenth Amendment? It is a matter of history, that thid 
 amendment was framed originally, and adoj)ted specially, to 
 
EQUALITY AND UNIFOKMITY. 
 
 839 
 
 protect the freedmen of the African race ; but it is to be con- 
 strued by its language, and that is broad enough to include 
 all who are, or were, previouslj'- comprehended within the 
 word " person." 1 It is a well established rule of construc- 
 tion, that if the particular case is within the language of 
 
 ' " In my judgment, the word 
 ' person ' in the clause of the Four- 
 teenth Amendment to the national 
 Constitution, 'No state shall . . . 
 deprive any person of life, liberty 
 or property without due process of 
 law, nor deny to any person the 
 equal protection of the laws,' in- 
 cludes a private corporation. It 
 miist at least, through the corpora- 
 tion, include the natural persons 
 who compose the corporation, and 
 who are the beneficial owners of all 
 the property, the technical and legal 
 title to which is in the corporation, 
 in trust for the corporators. Tlie 
 fact that the corporators are united 
 into an ideal legal entity, called a 
 corporation, does not prevent them 
 from having a right of property in 
 the assets of the corporation, which 
 is entitled to the protection of this 
 clause of the constitution. Nor does 
 the intervention of this artificial be- 
 ing, between the real beneficial own- 
 ers and the state, for the simple 
 purpose of the convenient manage- 
 ment of the business engaged in, 
 enable the state, by acting directly 
 upon the legal entity, to deprive the 
 real parties beneficially interested, of 
 the protection of these important 
 provisions. (Justice Sawyeb's opin- 
 ion. ) San Mateo County v. Southern 
 P. E. Co.- 8 Sawyer 281. "The 
 word 'person' is, unquestionably, 
 much broader in its signification than 
 the word ' citizen,' and the change 
 from the word ' citizen,' in the first 
 clause of the section, to the word 
 ' person,' of so much larger import 
 in the last, must have been well con- 
 sidered, and have been intended to 
 extend the shield of the constitution 
 
 to all cases which might require the 
 protection of this wholesome and 
 greatly needed guaranty. There is 
 nothing in the context to indicate a 
 purpose to limit the meaning of the 
 word ' person ' to a narrower sense 
 than the word ordinarily and natu- 
 rally imports, or to make the appli- 
 cation of the provision partial only. 
 To exclude corporations from its 
 import would be to leave, perhaps 
 at this day, the far larger portion of 
 the capital of the country employed 
 in great enterprises, either com- 
 mercial, manufacturing, mining or 
 otherwise, beyond the pale of its 
 protection. . . . The provision is 
 protective and remedial, not puni- 
 tive in character, and should, there- 
 fore, be liberally, not strictly, con- 
 strued. No restriction should be 
 put upon the terms not called for 
 by the exigencies of the case, or by 
 the public interests; and it must be 
 manifest that the public interest re- 
 quires that the broadest signification 
 should be adopted. Id. 283, 284. 
 Text writers designate corporations 
 as persons. In Blackstone's Com- 
 mentaries, Book I., p. 123, the fol- 
 lowing language is used : " Persons 
 are also divided by the law into either 
 natural persons or artificial. Natu- 
 ral persons are such as the God of 
 nature formed us; artificial are such 
 as are created and devised by human 
 laws for the purposes of human so- 
 ciety and government, which are 
 called corporations or bodies poli- 
 tic." This question was ruled on 
 in the case of United States v. 
 Amedy (11 Wheat. 412), and the 
 court held that corporations were 
 included where the word "person" 
 
uo 
 
 THE LAW OF ASSESSMENTS. 
 
 the law, notwitstanding it may not have been within the 
 mind of its framers or of those who adopted it, yet if 
 clearly included within its language, it must be regarded 
 as within it.^ 
 
 Sec. 189. Under the 14tJi Amendment— Equality and ITni- 
 formity in Taxation become a Legal Right 'w^hich may be enforced 
 in the Federal Courts. — A wider significance is given to the 
 doctrine of equality and uniformity in taxation, by the 
 Fourteenth Amendment to the Constitution of the United 
 States. It is no longer a matter of mere state jurisdiction, 
 but the Federal courts also take jurisdiction of all infrac- 
 tions of the rule. It may therefore be stated that any 
 law, constitutional or statutory, which provides a rule 
 of taxation more favorable to one class of persons than to 
 another, is invalid and cannot be enforced.' It has already 
 been held in a well considered decision that any exemption 
 
 is used in a statute. The following 
 is the language used : " Another 
 question, not raised in the court be- 
 low, has been argued here, and upon 
 which, as it is vital to the prosecu- 
 tion, we feel ourselves called upon to 
 express an opinion. It is that a cor- 
 poration is not a person within tlie 
 meaning of the act of congress. . . . 
 The mischief intended to be reached 
 by the statute is the same, whether 
 it respects private or corporate per- 
 sons. That corporations are in law, 
 for civil purposes, deemed persons, 
 ;s unquestionable." 
 
 ^ " The case being within the 
 words of the rule, must be within 
 its operation likewise, unless there 
 be something in the literal construc- 
 tion so obviously absurd, or mis- 
 chievous, or repugnant to the general 
 spirit of the instrument as to justify 
 those who expound the constitution 
 in making it an exception." Trus- 
 tees of Dartmouth College v. Wood- 
 ward, 4 Wheat. 645. 
 
 ' In the case of San Mateo County 
 V. Southern Pacific Railroad (8 Saw- 
 yer 251), Justice Field used the fol- 
 lowing language : " The Fourteenth 
 
 Amendment of the Constitution, in 
 declaring that no state shall deny to 
 any person within its jurisdiction 
 the equal protection of the laws, 
 imposes a limitation upon the exer- 
 cise of all the powers of the state 
 which can touch the individual or 
 his property, including among thera 
 that of taxation. Whatever the 
 state may do, it cannot deprive 
 any one within its jurisdiction of 
 the equal protection of the laws. 
 And by equal protection of the laws 
 is meant equal security under them 
 to every one, on similar terms, in his 
 life, his liberty, his property, and in 
 the pursuit of happiness. It not 
 only implies the right of each to re- 
 sort, on the same terms with others, 
 to the courts of the country for the 
 security of his person and property, 
 the prevention and redress of 
 wrongs, and the enforcement of 
 contracts, but also his exemption 
 from any greater burdens or charges 
 than such as are equally imposed 
 upon all others under like circum- 
 stances. Unequal exactions in every 
 form, or under any pretense, are ab- 
 solutely forbidden, and of course 
 
EQUALITY AND UXIFOEMITY. 841 
 
 from taxation of property not owned by federal, state, or 
 municipal government and used for public purposes, is vio- 
 lative of the doctrine of equality and uniformity, and in 
 conflict with the letter and spirit of the Fourteenth Amend- 
 ment.^ 
 
 Sec. 190. Omissions and Inequalities .in Valuation. — It 
 may be stated as a general rule, that omissions of property 
 from the assessment roll, which are not intentional, but 
 result from oversight and mistake or ineflSciency of the 
 assessing officer, as also inequalities which result from a 
 defect in judgment, will not vitiate an entire assessment.'^ 
 But intentional omissions, and willful and intentional dis- 
 criminations in valuations, having as they necessarily must, 
 the effect to impose inequalities in taxation, will invalidate 
 tlie entire assessment roU.^ 
 
 Sec. 190a. Conflict of Jurisdictions. — From what appears 
 in the preceding chapters, especially on the doctrine of 
 situs and double taxation, it sufficiently appears that there 
 already exists a conflict of jurisdiction between the states, 
 relating to some of the subjects of taxation. This conflict 
 
 unequal taxation, for it Is in that erty without reference to a common 
 form that oppressive burdens are ratio, would be inconsistent with 
 tisually laid. It is not possible to that equal protection which the 
 conceive of equal protection under Amendment requires the state to 
 any system of laws where arbitrary extend to every person within its 
 and unequal taxation is permissible; jurisdiction." San Mateo County d. 
 where different persons may be taxed Southern P. R. Co., 8 Sawy. 251, 252, 
 on their property of the same kind, (also entitled " The Kailroad Tax 
 similarly situated, at different rates; Case.) 
 where, for instance, one may be ^ j^nte, § 173, n. 3. 
 taxed at one per cent, on the value i Puget Sound Ag. Society v. 
 of his property, another at two, or Pierce Co. 1 Wash. 172; Riclcets v. 
 five per cent. ; or where one may be Spralier, 77 Ind. 371 ; Dingham v. . 
 taxed according to his color because City of Chicago, 55 HI. 361; Bur- 
 he is white, or black, or brown, or lington & Missouri E. K. C!o. v. 
 yellow, or according to any other Saline County, 12 Neb. 396 ; Weeks 
 rule than at a fixed rate, propor- v. Milwaukie, 10 Wis. 264; Hersey 
 tionate to the value of his property, v. Milwaukie, 16 Wis. 191; Dean ». 
 . What is called for under a con- Gleason, 16 Wis. 16; Smiths. Smith, 
 stitutional provision requiring equal- 19 Wis. 619. 
 
 ity and luiiformity in the taxation of ^ Weeks v. Milwaukie, 10 Wis. 
 
 property, must be equally called for 263; Hersey v. Milwaukie, 16 Wis. 
 
 by the Fourteenth Amendment. The 192; Smith v. Smith, 19 Wis. 619; 
 
 forced contribution from one, which Lefferts v. Calumet County, 21 Wi.s. 
 
 would follow taxation of his prop- 688. 
 
312 THE LAW OF ASSESSMENTS. 
 
 relates more immediately to the class of personal property 
 known as debts and credits — their situs and the domicile of 
 debtor and creditor. Intangible personalty also comes 
 within the conflict of the independent sovereignty of 
 states. In some of the states, a debt secured by mortgage 
 upon real estate has been made, for taxable purposes, a 
 part of the realty, and taxable to the owner of the debt, 
 whether he is or is not a resident within the nation. This 
 leaves the owner subject to taxation at his domicile-state, 
 on the same debt and for the same fiscal year, and when 
 imposed, necessarily results in a double taxation. This is 
 usually done, unless the debt is in the hands of a non- 
 resident agent and controlled by him. Another class of 
 debts made the subject of taxation, consists of debts and 
 credits. Where solvent debts are taxed, these are inva- 
 riably assessed to the owner at his domicile, notwith- 
 standing the debtor and all the property they represent, are 
 within another jurisdiction. The doctrine is beginning to 
 be advanced that these should be taxed to the owner regard- 
 less of his domicile, at the residence of the debtor, upon 
 the theory that all that the debt or credit represents is repre- 
 sented and protected there. An assertion of the power of 
 the state' of the debtor's domicile, to tax in his hands the 
 debt to the creditor, would leave such owner subject to 
 taxation within the state of his own domicile for the same 
 debt, for the same fiscal 3'ear, and would be, as to the cred- 
 itor, clearly a case of double taxation. Another conflict of 
 jurisdiction has relation to shares owned by a shareholder 
 of stock in a foreign corporation. The fact that his shares 
 are taxed by the sovereignty where the corporation was 
 organized and has its domicile, is no bar to taxation of the 
 same shares in the state wherein the shareholder has his 
 domicile. Other illustrations might be added, but these 
 are sufficient to direct attention to the subject matter. 
 None of the cases referred to would be affected by the 
 Fourteenth Amendment. Uniformity and equality of taxa- 
 tion, as between all tax-payers, irrespective of domicile, 
 cannot be attained where these conflicts of jurisdiction 
 occur. 
 
AMENDING AND REVIEWING ASSESSMENTS. 343 
 
 CHAPTER XVI. 
 
 AMENDING AND KEVIEWING ASSESSMENTS. 
 
 Sec. 191. Amending of — within Legislative Control. — An 
 
 act of the legislature of New Jersey passed March 25th, 
 1881, authorizes the courts to amend and correct assessments 
 in matters of form and provides that no assessments shall 
 be set aside or vacated on account of defects, or irregulari- 
 ties in the manner or form of making the same, if the per- 
 sons against whom the assessment was made, or the 
 property assessed, were as a matter of fact liable to assess- 
 ment and taxation. It was lield that this act ought to be 
 construed liberally; and that its provisions applied to 
 assessments made prior to the passage of the act.^ This 
 act appears to be in harmony with the statutes of New 
 York, authorizing similar action on the part of the' courts 
 there, where the assessments are certified to be " free from 
 fraud." ' It is also in accord with the case of People v. 
 Holaday,^ where the assessment of personal property was. 
 defective for want of description of the character of the 
 property; being in form as follows: " personal property 
 valued at $27,500," and it was held that in virtue of a stat- 
 ute legalizing and confirming and rendering valid assess- 
 ments, including this one, it might be "enforced by suit, 
 provided the complaint supplies a proper description." 
 An act of the legislature of the state of Nevada, where 
 delinquent taxes were collected by suit against the person 
 and the property, authorized amendments to the description 
 of assessments ; such amendment to be made in the sum- 
 mons and complaint, "to make more certain description 
 than that contained in the assessment roll, of the real prop- 
 erty assessed ; " and this act was held' to be a proper exer- 
 cise of the power of the legislature.^ 
 
 1 State V. M. & G. Lake R. E. Co. » See State v. Real Del Monte, G. 
 43 N. J. L. 524. & S. M. Co. 1 Nev. 523. See ante, 
 
 2 25 Cal. 305. § 90, n 1. 
 
344 THE LAW OF ASSESSMENTS. 
 
 Sec. 192. Assessments reviewed only on Charge of Fraud. 
 — When the assessing officer has jurisdiction to make an 
 assessment, his estimates of value, fixed upon the property 
 by him assessed, cannot be reviewed by the courts upon the 
 mere ground that the property has been assessed higher 
 than its actual value. The only relief is an appeal to the 
 board of equalization or otlier tribunal appointed to hear 
 such appeals ; and the value as fixed by such tribunal 
 becomes final. In fixing values upon property, the assessor 
 acts judicially, or at least in his official character ; and how- 
 ever he may err in judgment, except through the board of 
 equalization, no tribunal has the power to correct such an 
 error. It is only when the assessor has gone outside of his 
 jurisdiction, or his estimation of values is so disproportion- 
 ate to the real value, as to furnish clear evidence of corrup- 
 tion or fraud, that the courts will interpose ; and then as in 
 any other case of fraud, the courts have jurisdiction to 
 grant relief.-' ^ ^ 
 
 Sec. 193. Validity of Assessments may always be tested 
 somewhere. — The validity of an assessment may always be 
 
 1 Albany & West Stockbridge K. portion of the taxes, the court held 
 K. Co. V. Town of Canaan, 16 Barb, that this was a statement of a good 
 250. cause of action for relief. "A pub- 
 
 2 Where the allegation of corrup- lie oflBoer, being empowered by law 
 tion and fraud consisted of the follow- to apportion certain burdens among 
 ing charge, that the assessors " fraud- the citizens, as in his judgment shall 
 ulently made a distinction in such be just, being actuated by a fraudu- 
 assessment and taxation against the lent purpose, instead of obeying 
 plaintiff, with the intention and de- the law, disregards its mandate, de- 
 sign of making him pay more than , clines to bring his judgment to bear 
 his just and equal portion of the upon the question submitted to him, 
 taxes to be paid to the said town," and arbitrarily, and with express 
 it was held to be sufficient to au- reference to defeating the ends at 
 tliorize an injunction to restrain the which the law aims, determines to 
 collection of the tax. Lefferts v. impose an excessive burden upon a 
 Calumet County. J:l Wis. 689. particular citizen, has this citizen 
 
 3 Where the charge of the com- any remedy against the threatened 
 plaint was that the supervisors of wrong ? We think the question 
 the several townships in which the can admit of but one answer. A 
 plaintiff s lands were situated, fraud- discretionary power cannot excuse 
 ulently assessed them above their an officer for refusal to exercise his 
 value, and, relatively, very mucli discretion. His judgment is ap- 
 beyond the assessment of other pro- pealed to, not his i"esentments, his 
 petty, for the purpose of relieving cupidity, or his malice. He is the 
 resident tax-payers from their pro- instrument of the law to accomplish 
 
AMENDING AND KEVIEWING ASSESSMENTS. 345 
 
 tested at some stage of the proceedings instituted to enforce 
 the payment of the tax ; or for possession of property sold 
 for delinquency. In some states the initial proceedings for 
 this purpose consist of the commencement of an action in 
 a court of competent jurisdiction against the delinquent 
 tax-payer to collect the tax, as a personal obligation, and the 
 enforcement of a tax lien ; in others, in a sale of the property 
 assessed, if real estate, and if personal property, in a seizure 
 and sale of personal property of the delinquent tax-payer. 
 When an action is commenced, and the person assessed is 
 brought into court, the defense, if any, must be there inter- 
 posed, in resisting the judgment prayed for. When the 
 property assessed is sold without action or suit, the defense 
 may be made when the purchaser seeks, by an action or 
 other proceeding, to obtain possession of the property sold 
 for the delinquent tax, or the officer may be sued. 
 
 Sec. 194. Assessments — apparently valid — if paid, when 
 may be Vacated and recovered back. — Where an assessment 
 which is apparently valid, and constitutes a lien, and its 
 invalidity can be established only by facts not appearing of 
 record, has been paid, the payment is no bar to an action or 
 proceeding to have the assessment vacated and the money 
 paid refunded.^ 
 
 a particular end through specified estate, hut was void, in -whole or in 
 
 means, and when he purposely steps part, by reason of the fact that the 
 
 aside from his duty to inflict a wan- work was done, under a contract to 
 
 ton injury, the confidence reposed in do the grading, for forty-five cents 
 
 him has not disarmed the law of per cubic yard; but the contractor 
 
 the means of prevention. His judg- was paid seventy cents per cubic 
 
 ment may, indeed, be final if he yard, the illegal excess amounting 
 
 shall exercise it, but an arbitrary to $6,666, this sum being included 
 
 and capricious exertion of ofBcial in the assessment. The illegality 
 
 authority, being without law, and could not be learned by an inspec- 
 
 done to defeat the purpose of the tion of the assessment roll or papers 
 
 law, must, like all other wrongs, be thereto attached ; nor would the 
 
 subject to the law's corrections." same appear in any proceedings to 
 
 Merrill v. Humphrey, 24 Mich. 171- enforce the lien for the assessment. 
 
 173. In ignorance of these facts an as- 
 
 1 The following facts are iUustra- sessmeiit, including as part of it 
 
 tive of this doctrine. An assessment this illegal excess for grading, was 
 
 was imposed upon certain real estate paid, and suit was afterwards 
 
 for a local improvement, and which brought to vacate the assessment, 
 
 was valid on its face, and constituted and to recover the assessment paid, 
 
 an apparent lien upon the real Justice Eael, in passing upon this 
 
346 THE LAW OF ASSESSMBKTS. 
 
 Sec 195. Aggrieved Party only may cgmplam — who ia.— 
 
 It is only the aggrieved party that can object to an assess- 
 ment. In this respect the rule is the same as in respect to all 
 matters of which the law takes cognizance — the injured or 
 aggrieved party only can be heard. " A person aggrieved 
 by an act or omission, is one injured thereby."^ The injury 
 must not be remote or consequential, but direct. "The 
 owner of the land affected by an assessment is directly in- 
 jured thereby, for his property is rendered so much less 
 valuable to him ; it is worth so much the less in the market ; 
 so much as is the assessment is taken from his other means 
 to relieve his land of the assessment; or the land itself is sold 
 or leased bj' virtue of the lien." '^ A party who was the owner 
 of the land at the time of the confirmation of the assessment, 
 and is liable for the payment of it, may maintain an action 
 or proceeding to vacate an assessment, as a party aggrieved.^ 
 It has also been held that a person who has once been the 
 owner and might be held to indemnify a grantee against an 
 assessment, is a party legally aggrieved.* A party is not 
 aggrieved when he is not injured. A slight omission in the 
 
 question, used the following Ian- regarded as in the nature of a judg- 
 
 guage: " Three propositions may be ment, which cannot be attacked 
 
 regarded as established in the law collaterally. The money paid upon 
 
 as to taxation and assessments by the assessment in such a case is 
 
 the courts of this state. First. An treated as if collected by virtue of a 
 
 action in equity to vacate an assess- valid judgment, which can be re- 
 
 ment, and restrain its collection, tained until the judgment is vacated 
 
 cannot be maintained merely be- or reversed. Third. An action can 
 
 cause the assessment is, for any be maintained to vacate an assess- 
 
 reason, invalid or illegal. Heywood ment which is a lien upon land, and 
 
 ». Buffalo, 14 K. T. 534; Guest v. thus a cloud upon title, when the 
 
 Brooklyn, 69 Id. 506. . . . Second, assessment is, in fact, invalid, and 
 
 An action at law cannot be main- the validity does not appear upon 
 
 tained to recover back money paid the face of the assessment, and will 
 
 upon an illegal assessment which not necessarily appear in any pro- 
 
 tlie assessors had jurisdiction to im- ceeding taken by a purchaser, under 
 
 pose, and which is not void upon a tax sale for non-payment of the 
 
 its face, so long as the assessment assessment, to recover possession of 
 
 remains unvacated and unreversed, the land." Strasburgh v. Mayor — 
 
 Swift V. Poughkeepsie, 37 N. Y. 511; New York, 87 N. Y. 455. 
 
 Bank of Commonwealth v. Mayor, ' In re Walter, 75 N. Y. 357. 
 
 43 Id. 184; Marsh ». Brooklyn, 59 ^Id.. 
 
 Id. 280. This is so, because the action " In re Phillips, 60 N. Y. 17-20. 
 
 of the assessors is regarded as judi- * In re Burke, 62 JT. Y. 225. 
 cial, and because the assessment is 
 
AMENDING AND EEVIEWING ASSESSMENTS. 
 
 347 
 
 details of plans or specifications which does not render 
 uncertain or ambiguous the work and material required, and 
 which could not materially influence the bidding, is not an 
 injury of which a party in interest can complain.^ It is no 
 defense to a swamp land district assessment that the state 
 has failed, to comply with the act of Congress granting to 
 the states the swamp and overflowed lands within their 
 limits, by not appropriating the proceeds of the sales of 
 tliese lands to their reclamation. For any such breach of 
 condition in the grant, the United States only can complain.® 
 Sec. 196. An Assessment similar to a Judgment. — An as- 
 sessment made by the proper officers is in the nature of a 
 
 5 In the case of Houghton v. Burn- 
 ham (22 Wis. 306), the omissions 
 which constituted the ground of 
 complaint related to man-holes and 
 the cement in the construction of a 
 sewer. These, it was alleged, were 
 not sufficiently described in the 
 plans and specifications. That 
 which related to man-holes read 
 as follows: "Man-holes shall be 
 made in said sewer opposite the 
 alleys in all blocks between Second 
 and Sixth streets, and for the bal- 
 ance of said sewer at such places as 
 the street commissioners shall di- 
 rect, at distances of not less than 
 400 feet." As to the cement, the 
 language was: " The cement to be 
 used shall be of the Illinois cement 
 ... or FayettevlUe water lime and 
 Kosendale cement; and it shall be 
 decided by the commissioners which 
 shall be used. . . . Both brick and 
 cement shall be of first-rate quality 
 for that purpose." In passing on 
 both points Justice Paynk used the 
 following language : " It is true the 
 cost could not be estimated with ab- 
 solute certainty without knowing the 
 number of the man-holes, and how 
 they were to be constructed. But it 
 was shown that a man-hole is a well 
 understood thing, usually constructed 
 in a round form, . . . and that any 
 person at all familiar with such work 
 
 could estimate with reasonable cer- 
 tainty. Their number was left some- 
 what tmcertain, though they could 
 not exceed one to every 400 feet. 
 This, of course, would prevent abso- 
 lute precision in an estimate ; but 
 the witnesses testify that the mat- 
 ter was so trifling in importance 
 that it would have made no differ- 
 ence in the bids. So also there was 
 an uncertainty in the kind of cement 
 to be used. . . . But it appears that 
 the most expensive cement was ac- 
 tually used, so that, although there 
 might have been a wrong done to 
 property owners by this uncertainty 
 in the kind of cement, if the prices 
 were materially different, yet in fact 
 there was none." 
 
 ^ In answer to an objection on this 
 point the court said : "In the first 
 place, if a contract was created by 
 the Arkansas act, when the state ac- 
 cepted its benefits, it is for the United 
 States to complain of the breach, if 
 any there be. The plaintiff is not a 
 party to the contract, and is in no 
 position to invoke its protection." 
 But the court held that no such con- 
 dition was Imposed by the Act : that 
 the appropriation of the proceeds 
 "rests solely in the good faith of 
 the state." Hagar v. Reclamation 
 District No. 108, 4 Sup. Ct. E. 689, 
 (Cal.) 
 
•348 THE LAW OF ASSESSMENTS. 
 
 judgment, and, like a judgment, can not be assailed for fraud 
 or irregularity, in a suit against an officer holding process 
 which is fair on its face, issued to enforce a tax based upon 
 it.^ Where an officer holding process, apparently regular, 
 acts within the scope of his warrant, writ, or process, he is 
 always protected, unless the authority issuing it was without 
 jurisdiction. But where the tribunal issuing the process has 
 jurisdiction of the subject matter, and the process is regular 
 upon its face, the inferior officer, whose duty it is to execute 
 it, is not to be affected by any illegality in the previous 
 proceedings.^ The same rule of law extends to an assess- 
 ing officer.^ 
 
 1 Moss V. Cummings, 44 Mich. 361, and cases there cited. 
 * Cunningham V. Mitchell, 67 Penn. St. 81. 
 ' Moss V, Cummings, 44 Mich. 362. 
 
EE-ASSESSMENTS. 849 
 
 CHAPTER XVII. 
 
 KE- ASSESSMENTS. 
 
 Sec. 197. Re-assessments can only be made ■when author- 
 ized by Statute — Where an assessment has been declared 
 invalid, illegal or void by reason of any defect in the pro- 
 ceedings had in the attempt to levy, assess or collect a tax 
 or assessment, and not because of the illegality of the tax 
 itself, ordinarily the liability both as to the person and 
 property sought to be charged continues, and the tax may 
 be enforced through another assessment. It is within the 
 power of the legislature to require a re-assessment in all 
 cases where the authority conferred in making the original 
 assessment has been defectively or irregularly executed. 
 With a provision for re-assessraents, no tax or assessment 
 need be lost through the inefficiency or negligence of the 
 officers charged with the duty of their levy, assessment 
 and collection. The re-assessment whenever made must 
 have reference to the value of the property at the time 
 the original assessment was made, as well as the law which 
 authorized it.^ Where assessments are required to be made 
 by some special officer designated by constitutional or other 
 
 1 In the case of Libby v. Burnham sessors abated the assessment the 
 
 (15 Mass. 147), on this point the following year, and made the same 
 
 court, after having adjudged certain assessment, except the poll tax, to 
 
 assessments illegal and void, used the the wife, who was owner of the 
 
 following language: "What, then, property at the time the assessment 
 
 is to be done when assessors have was made to her husband. This was 
 
 neglected their duty or gone beyond done under authority of a section of 
 
 their authority ? Is the whole tax the statute reading in the following 
 
 to be lost? There is no need of words: "Sec. 53. Every tax except 
 
 this. The tax maybe re-assessed, or a poll tax which is invalid by reason 
 
 the town may renew their vote to of any error or irregularity in the 
 
 raise the money." In the case of assessment, and which has not been 
 
 Hubbard v. Garfield (102 Mass. 72), paid, or which has been recovered 
 
 an assessment had been made to the back, may be re-assessed by the as- 
 
 husband of the owner who died be- sessors, for the time being, to the 
 
 fore suit was brought, and the as- just amount to which and upon the 
 
350 
 
 THE LAW OP ASSESSMENTS. 
 
 provision, and by reason of the omission of such officer 
 to make the assessment, the tax or assessment has been 
 declared or held void, and the defect could not be reached 
 by curative acts, there is no legal objection to a statute 
 providing for a re-assessment, if an officer authorized by 
 the constitution, or other provision on the subject be dele- 
 gated to make the re-assessraent.'* It is within the prov- 
 
 estate or to the person to whom such 
 tax ought at first to have been as- 
 sessed." tjnder this assessment a 
 warrant was issued to the proper 
 officer, and served upon the person 
 assessed under the re-assessment. 
 The writ was served by arrest, and 
 an action was brought against the 
 tax collector as for an illegal arrest, 
 and the officer justified under the 
 writ and the assessment. The court 
 below ruled that the re-assessment 
 was Invalid and the arrest illegal, 
 but this ruling was reversed in the 
 Supreme Court. In reversing, the 
 court said: "The re-assessment 
 may be made after the expiration 
 of the year by an entirely new board 
 of assessors. It extends to a tax 
 which has been paid and recovered 
 back by proce'ss of law, and which 
 would reasonably carry the time far 
 beyond the expiration of the year. 
 It may be used to correct an error 
 which affects the entire list, as in the 
 case of Goodrich v. Lunenburg, 9 
 Gray 38, the decision of which mani- 
 festly occasioned the statute pro- 
 vision in question, or to cure an 
 error discovered in any one or more 
 of the individual taxes. It reaches 
 every description of error that may 
 arise, either in regard to amount, or 
 estate or person. There was author- 
 ity enough, therefore, in the assessors 
 to re-assess the tax In question to the 
 plaintiff. The only difficult question 
 is whether they legally exercised it 
 in this instance. It is obvious that 
 the re-assessment, whenever made, 
 and by whichever board of assessors, 
 must be based upon the valuation of 
 
 the year in which the tax was first 
 assessed. It must be made in pur- 
 suance of the original votes of the 
 town, and the warrants of the state 
 and county requiring it; and all cor- 
 rections must have reference to 
 them." The court further expressed 
 the opinion that, "If the error or 
 irregularity in any given case were 
 such as to invalidate the entire as- 
 sessment, it would seem to be indis- 
 pensable that an entire new list 
 should be prepared, and should be 
 accompanied with a new warrant. 
 But there is not the same necessity 
 where the error is in the individual 
 assessment, and there is nothing in 
 the law which expressly requires it." 
 When the first assessment is invalid 
 and revoked, a second assessment 
 may be made by the same board of 
 assessors or by their successors. 
 Pond V. Negus, 3 Mass. »232. 
 
 ^ In Wisconsin, where the assess- 
 ments in the city of Janesville were 
 held invalid, an act of the legisla- 
 ture providing for a re-assessment 
 for the years 1854, 1855, 1856, 1857 
 and 1858, was held to be constitu- 
 tional. Talisman v. Janesville, 17 
 Wis. 74; May v. Holdridge, 23 Id. 
 93; Mills v. Charlton, 29 Id. 400; 
 Evans v. Sharp, 29 Id. 564; Calder 
 V. Keegan, 30 Id. 126. 
 
 When a re-assessment, for a local 
 improvement is provided for, a tri- 
 bunal may be created to determine 
 the amount to be assessed against 
 each lot or parcel, over and above 
 all payments and credits. O'Brien 
 V. County Commissioners Baltimore 
 County, 51 Md. 24. 
 
EE-ASSESSMEKTS. 
 
 351 
 
 ince of the legislature in a proper case to authorize county, 
 city, or town boards or officers to direct the proper assess- 
 ing officers to re-assess invalid or void taxes or assessments, 
 upon the property liable to re-assessment, after ascertaining 
 the amount chargeable to each lot or tract. When such 
 officers ascertain that certain lands, or some portion thereof, 
 are justly taxable for invalid or void, prior, unpaid taxes, 
 or assessments, the right to require the re-assessment fol- 
 lows.^ As already intimated, the legislature within recog- 
 nized limitations, has absolute control over the question of 
 re-assessments and may provide for a stay of proceedings 
 in all cases where a tax or assessment has been declared 
 illegal, invalid ,or void, until a re-assessment can be made ; 
 and where such provision exists, a judgment without the 
 stay is invalid.* 
 
 Sec. 197a. — Applicable to Street Assessments. — The law 
 applicable to re-assessments for general taxation applies also 
 to local assessments for street improvements, with these 
 restrictions : " The work for which the tax is sought to be 
 
 ' Applying for authority to make 
 a re-assessment is an acloiowledg- 
 ment of the invalidity of the tax. 
 Where the work has been done in 
 good faith, the lot owner has re- 
 ceived the benefit of the improve- 
 ment, and, made no objections till 
 long after the work was completed 
 and accepted, and the omission is of 
 such a character that the legislature 
 may authorize a re-assessment, and 
 the complaining party makes no 
 offer to pay any part of the assess- 
 ment or tax a court of equity will 
 refuse to enjoin the collection. By- 
 ram V. Detroit, 50 Mich. 56. See 
 also Defective Assessments and Cu- 
 rative Laws, ante, ch. 16. 
 
 * Defect, affecting all property of 
 town. A statute of Wisconsin was 
 held valid, which provided that when- 
 ever a tax, affecting all the property 
 of the municipality was set aside, 
 that the court should order a stay of 
 proceedings until the property could 
 be re-assessed. Flanders v. Town of 
 
 Men-imack, 4 K. W. Eep. 743. (Wis. ) 
 A judgment was rendered setting 
 aside tax certificates on the ground 
 of certain errors, irregularities and 
 omissions in the assessment of the 
 property for the years 1874 to 1877 
 inclusive, but no stay of proceedings 
 was ordered to enable the proper au- 
 thorities to make a re-assessment as 
 provided and required by statute. 
 The court, in holding this judgment 
 to be void, used the following lan- 
 guage: "The assessment and tax 
 being void, for a 'reason affecting 
 the ground work of the tax, and 
 affecting all the property' of the 
 town, what was it the duty of tlie 
 court to do under the law ? Cer- 
 tainly not to give a judgment as it 
 did do, cancelling the tax proceed- 
 ings, and perpetually enjoining the 
 officers from attempting to collect 
 the tax, but it should have stayed 
 proceedings in the cause until a re- 
 assessment of the property could be 
 made. Section 1210 of the Revised 
 
352 
 
 THE LAW OF ASSESSMEXTS. 
 
 assessed must be of such a character that the legislature is 
 authorized to provide for it by taxation. The method 
 adopted must be one liable to no constitutional objection. 
 It must be such as the legislature might have originally 
 authorized, had it seen fit.^ It sufficiently appears from 
 
 Statutes as amended by chap. 255, 
 Laws 1879. The statute is clear and 
 mandatory, requiring the court to 
 do this; consequently the court had 
 no power to give the judgment which 
 it rendered." See also, Single v. 
 Stetin, 6 N. W. Eep. 313 (Wis.); 
 Kingsley v. Supervisors, Id. 318 
 (Wis.); Clark v. Lincoln County, 
 121^. W. Eep. 21 (Wis.); Pratt v. 
 Lincoln County, 20 N. W. Eep. 
 726. (Wis.) Where, in making a 
 re-assessment the proper and equi- 
 table apportionment of the tax 
 is vested in a county board, it 
 will be presumed that they exercised 
 their discretion upon sufficient evi- 
 dence. A defective verification of 
 the assessment by the assessor will 
 not invalidate a re-assessment. It 
 may be shown, in answer to such 
 objection that the valuations con- 
 tained in the assessment were equi- 
 table and proper. And where the 
 valuation of the original assessment 
 was excessive, the cancellation of 
 the excess by the re-assessment cures 
 this objection. Where an assess- 
 ment has been made in good faith, 
 the defect In, or omission of the as- 
 sessor's affidavit is a mere Irregu- 
 larity, which, if fatal to the assess- 
 ment, will not defeat the re-assess- 
 ment. Bass V. Fond du Lac County, 
 19Sr. W. Eep. 526. (Wis.) 
 
 ^ " If the legislature possessed the 
 power to authorize the act to be 
 done, it could, by a retrospective 
 act, cure the evils which existed, 
 because the power thus conferred 
 had been irregularly executed. The 
 question with the legislature was one 
 of policy, and the determination 
 made by it was conclusive.'' Thomas 
 
 V. Lee County, 3 Wall. 831. The 
 following special statute, providing 
 for re-assessments of assessments 
 declared invalid and void, is copied 
 from the statutes of Wisconsin: 
 " The common council of the city 
 of Madison are hereby authorized. 
 In cases where the tax assessment or 
 assessments for grading or paving the 
 streets or alleys of said city, either 
 with pavement known as the ' Kich- 
 olson pavement,' or any other pave- 
 ment, have heretofore been set aside 
 or declared void by any court, by 
 reason of the want of power or au- 
 thority to order the same, or for non- 
 compliance with any of the provisions 
 of the charter of said city, either lii 
 ordering or letting the work, or 
 making the contracts in relation 
 thereto at any time within four 
 years after the same are declared 
 void, to re-assess and re-levy the 
 amount of such assessment or tax 
 so declared void, and to collect the 
 same in the same manner as other 
 taxes or assessments on such lands 
 or lots are collected." In the case 
 of Dean v. Charlton (23 Wis. 608), the 
 re-assessment was for a street assess- 
 ment which had been declared void 
 by reason of the fact that the mate- 
 rial (Nicholson pavement), required 
 and used was covered by a patent, 
 and which prevented competition in 
 bidding for the work; and while the 
 general doctrine of re-assessments 
 was not questioned, it was decided 
 that it did not reach a case of that 
 character, but in the dissenting 
 opinion of Ch. J. Dixon it was 
 held, that even where the proceed- 
 ings were illegal for the cause 
 stated, it was within the province 
 
EE-ASSESSMENTS. 
 
 353 
 
 what has been said in another chapter, that void assess- 
 ments such as are not curable by legislation, by reason of 
 their entire want of legal authority in the officer or tribu- 
 nal imposing them, cannot be made the basis of re-assess- 
 raents> But where the assessment was, or could have 
 been authorized for the particular improvement it was 
 
 of the legislature to authorize a re- 
 assessment and re-levy, and this view 
 is also taken in .the case of Hobart v. 
 Detroit, 17 Mich. 252. The views 
 expressed by Ch. J. DixeN in his 
 dissenting opinion (Dean v. Charl- 
 ton, 23 Wis. 608), were afterwards, 
 in a subsequent case, adopted by the 
 court. The case involved the same 
 question — the validity of an act of 
 the legislature authorizing a re- 
 assessment, after injunction, per- 
 petually restraining the collection 
 of an assessment on the ground that 
 it was illegal and void. In the par- 
 ticular case the act provided for a 
 re-assessment for a patent pavement 
 already laid, and the assessment for 
 which had been adjudged void, and 
 its collection perpetually enjoined. 
 It was conceded that, the case dif- 
 fered in no material respect from 
 the case of Dean v. Charlton, 
 and consequently that case was 
 overruled, so far as it conflicts with 
 the later opinion. But the court 
 held that the case was similar to 
 that of May v. Holbridge, (23 Wis. 
 93, ) except in the fact that the cura- 
 tive act in that case was not passed 
 till after the perpetual injunction 
 had been rendered. In that case 
 the original proceedings were held to 
 be void for want of jurisdiction, and 
 yet the act to legalize and re-assess 
 was upheld. The opinion proceeds, 
 after citing and reviewing cases, to 
 state that: "The principle upon 
 which these and other similar de- 
 cisions rest is, that the taxing power, 
 when acting within its legitimate 
 siihere and unrestrained by positive 
 constitutional provision, is a far- 
 
 reaching and unlimited power, which 
 knows no stopping place nor mod- 
 eration of force until it has accom- 
 plished the purpose for which it 
 exists, namely, the actual enforce- 
 ment and collection of the tax. It 
 moves constantly forward to its ob- 
 ject until that is accomplished, and 
 if turned aside by any obstacles or 
 impediments, may i-eturn again and 
 again to the same tax or assessment, 
 until, the way being clear, the tax is 
 paid or the assessment collected. 
 Such is the force of this power, or 
 of the sovereign body which exer- 
 cises it, that it may remove all ob- 
 stacles and never cease to act until 
 it has attained the appointed end for 
 which it was delegated." After re- 
 viewing a number of case*, the opin- 
 ion seems to favor the doctrine that 
 where the tax or assessment is local, 
 the legislature cannot, directly, make 
 the levy, but can only authorize the 
 local tribunal to make it. "If the 
 legislature," said the court, "in 
 such cases has no compulsory power 
 of taxation, and can only, by a proper 
 enabling act, submit the matter to' 
 the action of the local officers or of 
 the people of the municipality, it 
 would seem to follow that it has no 
 power to cure defects, or to waive or 
 supply omissions, in past proceed- 
 ings, against the will of the corpo- 
 ration to be charged. . . . Could the 
 legislature, by retroactive measures, 
 obviate the defect, and declare that 
 a valid contract which before was 
 void, against the will of the person 
 whose estate was to be charged ? It 
 has seemed to this court that it could 
 not, and that the case of a contract, 
 
354 
 
 THE LAW OF ASSESSMENTS. 
 
 designed to furnish the payment of, and the work has been 
 done in good faith relying upon the assessment for its com- 
 pensation, and the property sought to be charged has re- 
 ceived the benefit of tlie work done and the defect consists 
 of the failure to obtain jurisdiction either as to the subject 
 matter, the persons to be assessed, or other defect than as 
 
 void as against one of tliese munici- 
 pal corporations, stood upon the 
 same ground. But the case of taxa- 
 tion for a strictly public municipal 
 purpose, as to defray the ordinary 
 expenses of the municipal govern- 
 ment, either in providing suitable 
 roads and bridges, or for any other 
 thing of acknowledged public neces- 
 sity, depends, as we have seen, upon 
 an entirely different principle. In 
 the latter case the power of the legis- 
 lature, subject only to the constitu- 
 tional rule of uniformity where that 
 rule applies, is most ample and un- 
 restricted; and, inasmuch as the act 
 here only authorized the common 
 council in its discretion to re-assess 
 the taxes, and did not command or 
 compel such re-assessment, or make 
 the re-assessment, and so is unob- 
 jectionable within all the autliori- 
 ties, the court is bound to hold that 
 it is in all respects both valid and 
 constitutional." And the court held 
 that as to the re-assessment, when 
 made, that i t did not re-open the in- 
 junction; that as the judgment 
 enjoined the first assessment, the 
 injunction remained, " The re- 
 assessment of a tax, tlie proceed- 
 ings for the collection of which have 
 once failed, is not a re-opening of the 
 judgment by wliich such former pro- 
 ceedings were declared invalid. Such 
 judgment remains a perpetual stay 
 of the proceedings to enforce the 
 first assessment, but it only affects 
 that assessment, and does not ope- 
 rate upon new proceedings subse- 
 quently taken to re-assess. It is a 
 judgment merely in abatement of 
 the original proceedings, and by 
 
 which they are annulled, and not 
 one affecting the ground-work or 
 basis of the tax itself, upon which 
 tlie legislature may again proceed in 
 the exercise of its unrestricted power 
 over the subject. The original pro- 
 ceedings having failed for reasons 
 which the legislature may lawfully 
 obviate, and the basis for taxation 
 still remaining, namely, the public 
 benefit or improvement received, for 
 which the legislature say the prop- 
 erty of the citizens should pay, a re- 
 assessment maybe authorized. This 
 conclusion as to the eflfect of the 
 judgment seems to follow, not only 
 from the nature of the action in 
 which it was rendered and the 
 grounds of it, but also from the 
 unlimited force and operation of the 
 taxing power as we find it constantly 
 recognized and defined. Should the 
 general state tax for any one year 
 fail for some irregularity, or for 
 want of authority in the taxing offi- 
 cers, could it be for a moment ad- 
 mitted, under any circumstances or 
 upon any pretense, that the power 
 of re-assessment or re-levy did not 
 exist ? It appears to this court not, 
 and that the same principle wliich 
 must apply to and govern that case, 
 must equally apply to and govern 
 every other case of taxation for a 
 confessedly public purpose." Mills 
 V. Charlton 29 Wis. 400; (s. c. 9 Amer. 
 R. 579. ) But in New York; the Court 
 of Appeals hold that the re-assess- 
 ment, even when it relates to a mu- 
 nicipal tax or assessment, may be 
 made, directly, by the legislature. 
 {See n. 3, infra.) 
 
EE-ASSESSMENTS. 
 
 866 
 
 stated, the legislature may authorize a re-assessment.^ As the 
 re-assessment can only be made under authority of positive 
 law, it follows that the mode of making and the tribunal 
 or officers by whom it is to be made, must be provided for 
 by statute or when a general tax, the legislature may by 
 direct enactment make the assessment.^ But when the tax 
 
 ^ When judicially set aside or de- 
 clared void for fraud. Under a local 
 law, the city of Madison, Wis., was 
 authorized to re-levy or re-assess an 
 assessment wlilclihad been judicially 
 set aside or declared void for either 
 of the following reasons: 1st. For 
 any irregularity in any of the pro- 
 ceedings in levying the same; 
 2d. For any omission to comply with 
 the forms of the law under which 
 the assessment was levied; 3d. For 
 want of power to order the work; 
 and 4th. For a non-compliance with 
 any requirement of the city charter 
 in ordering or letting the work, or 
 making the contracts in relation 
 thereto. An assessment had been 
 set aside for the reason that the 
 work had been re-let without adver- 
 tising for bids — at a price, three 
 times as inuch as the next to the 
 lowest bid, and under which the 
 work was first taken. A re-levy and 
 re-assessment to pay for this work 
 having been made, upon an injunc- 
 tion to restrain its enforcement, the 
 coiirt held that the re-levy and re- 
 assessment were illegal — that the 
 former assessment was set aside for 
 misfeasance in office, in fraud of the 
 rights of tax-payers. But it was 
 conceded that if, for any of the 
 causes mentioned — even if set aside 
 by a judgment or decree, a re-levy 
 and re-assessment might have been 
 made. A different and more en- 
 larged view is presented in the later 
 case of Mills v. Charlton, 29 Wis. 
 400 (s. c. 9 Amer. R. 578), referred 
 to herein. There would seem to be 
 no reason why, even in case of a 
 fraudulent letting at a price above 
 
 the actual valne of the work, the 
 property benefited should not be 
 chargeable, in a re-assessment made 
 in good faith, for the actual cost or 
 value of the work done. The stat- 
 ute, under authority of which the 
 re-assessment was attempted, in the 
 case last cited, is in the following 
 language: "All taxes and assess- 
 ments, either special or general, 
 which have been heretofore or may 
 hereafter be levied in any town or 
 city in this state upon any lands or 
 real estate in such town or city, and 
 which may have been or shall be set 
 aside and declared illegal or void by 
 judgment or decree of any court of 
 this state, in consequence of any 
 irregularity in any of the proceed- 
 ings in levying said tax or assess- 
 ment, or in consequence of any 
 omission to comply with the forms 
 of law under which said tax or as- 
 sessment may be or has been made, 
 may be re-assessed and re-levied upon 
 said lands or real estate in any such 
 town or city at any time within four 
 years after tlie judgment of the 
 court setting aside said tax or assess- 
 ment, shall be pronounced." 
 
 ^ Be-assesments — how made. Un- 
 der the authority of the statutes of 
 Wisconsin, the county board of su- 
 pervisors are vested with power to 
 order a re-assessment of an Invalid 
 tax where, upon inquiry, they ascer- 
 tain that a lot or tract, or some por- 
 tion thereof, is subject to the tax, 
 and, after it is ascertained or ad- 
 judged to be invalid or void. In the 
 absence of any statutory require- 
 ment, the board may pursue their 
 investigation of facts, as to the in- 
 
556 
 
 THE LAW or ASSESSMENTS. 
 
 is one of mnnieipal or local cognizance, it has been held in. 
 Wisconsin that the municipal or local authorities must 
 make or cause the re-assessment to be made,®* 
 
 Irregular and defective assessments — lien of. The legisla- 
 ture may provide bj' statute that a purchaser at a tax sale 
 
 validity of the tax and tlie liability 
 of the property to taxation, in any 
 mode they may clioose to adopt. 
 Where the board expressed their 
 conclusions in the form of resolu- 
 tions, and ordered the sums found to 
 be the proper tax for which certain 
 property was liable when the invalid 
 tax was assessed, to be assessed back 
 and apportioned to the property lia- 
 ble therefor, the re-assessment was 
 held to be valid. In reply to objec- 
 tions to such re-assessinent Justice 
 Cassoday used the following lan- 
 guage: "In the absence oi any 
 proof of inequality or injustice it is 
 enough to know that the board was 
 satisfied that the lots in question, 
 respectively, were justly taxable for 
 such tax. For that purpose the 
 board is a taxing tribunal, invested 
 with certain discretionary powers of 
 investigation and determination for 
 the purpose of enforcing a public 
 debt, justly chargeable to particular 
 parcels of land which have unjustly 
 escaped such burden in consequence 
 of sonie informality or irregularity 
 or omission in the statutory require- 
 ments. . . . Where, as here, there 
 is such a, re-assessment in conse- 
 quence of such an omission, the tax- 
 payer will not be allowed to interfere 
 and restrain the collection of the tax 
 without offering to pay the tax, or 
 showing its injustice or inequality, 
 or that it is sought to be imposed in 
 violation of law." Bass v. Fond du 
 Lac Co., 19 X. W. Eep. 526. (Wis.) 
 
 Whatre-assessments for street im- 
 provements include. Are-assessment 
 and re-levy for the grading or pav- 
 ing or grading and paving of a street, 
 where the assessment has been de- 
 
 clared invalid, includes all the work 
 necessary to the paving, and includes 
 filling. Dean v. Borchaemu.s, 30. 
 Wis. 244. An assessment having 
 been declared void, the legislature 
 by direct enactment made an assess- 
 ment, wliich was held to be valid. 
 " It is also objected that it is not com- 
 petent for the legislature to validate a 
 void assessment, and that it could 
 only authorize a re-assessment. The 
 answer to this is, that the legislature 
 did not attempt to legalize the old 
 assessments, but itself exercised the 
 power of making new assessments. 
 The ^Id assessments are referred to, 
 not for the purpose of adoption, but 
 for the purpose of fixing the specific 
 amount by the proportion specified ; 
 and the act expressly levies that 
 amount as a tax. It is as certain as 
 if the particular sum was specified. 
 . . . It was conceded, on the argu- 
 ment, that the legislature might have 
 authorized a re-assessment. If so, 
 it is clear that it could make the re- 
 assessment itself; and this is pre- 
 cisely what it did, by the act of 1872. 
 Whatever the legislature may au- 
 thorize to be done by a municipal 
 corporation, it may do itself directly ; 
 and it is no objection that the im- 
 provement had been made and ex- 
 penses incurred (37 N. Y. 267). The 
 act in question does not interfere 
 with any vested right or cause of 
 action of petitioner to set aside the 
 original assessment." In matter of 
 Van Antwerp, 56 N. Y. 265 ; Mat- 
 ter of Lands in Town of Flatbush, 
 60 N. Y. 406. 
 
 *" It is conceded in a leading case 
 in Wisconsin that the legislature has 
 no power to impose a tax upon a 
 
BE-ASSESSMENTS. 
 
 357 
 
 who fails to acquire a valid title, by reason of an irregu- 
 larity or defect in the assessment shall have a lien on the 
 property for the taxes including costs, paid as purchase 
 money, and for all taxes bj^ him subsequently paid on the 
 property. And lie may have judgment for such amounts 
 and for the enforcement of the lien against the owner in the 
 same action wherein the invalidity of the tax sale is 
 declared.* The practical working of such a statute is ia 
 effect a re-assessriient of the proper taxes against the prop- 
 erty and persons liable to the tax.^ 
 
 Sec. 197^. Re-assessments partake of the Character of Cura- 
 tive Acts. — The legislation which provides for re-assessments 
 partakes of the character of curative acts — laws which are 
 intended to legalize proceedings in attempting to lev}', 
 assess and collect taxes or assessments, which are ren- 
 dered defective, invalid and void, owing to some irreg- 
 
 mvmicipal government without its 
 consent; and it is held in the same 
 case that the legislature cannot cure 
 defects nor waive or supply omissions 
 in tax proceedings against the will of 
 the corporation -to be charged; but 
 that such legislation may be provided 
 as will enable the municipality or 
 district interested to take such ac- 
 tion as will work a cure of the de- 
 fects rendering the tax invalid or 
 void. Mills V. Charlton, 29 Wis. 
 400; (s. c. 9 Amer. R. 589.) 
 
 *Krutz V. Chandler, 5 Pac. Eep. 
 170. (Kan.) 
 
 6 A statute of Nebraska provided 
 that: " Whenever the title acquired 
 by a purchaser of real estate at treas- 
 urer's sale shall fail, the purchaser 
 at such sale, or his heirs or assigns, 
 shall have a lien upon the real estate 
 so purchased for the full amount of 
 the purchase money, together with 
 interest thereon from the date of 
 purchase, . . . and such purchaser, 
 his heirs or assigns, may pay all taxes 
 lawfully assessed on such real estate 
 after such purchase, and when the 
 said title shall fail, may have a, lien 
 fur all such taxes, together with in- 
 
 terest thereon, at the rate aforesaid. 
 The lien hereby created may be en- 
 forced in the manner directed bylaw 
 for foreclosing mortgages." In a 
 case where the trial court found that 
 the title had failed after a purchase 
 for a delinquent tax, and a lien was 
 declared and adjudged in favor of 
 the purchaser for the amount of 
 taxes paid, including the purchase 
 money paid at the delinquent tax 
 sale, the court used the following 
 language: "In Pettit ». Black, 8 
 Neb. 52, it was decided by this court 
 that when the purchaser had paid 
 the amount bid at avoid sale into 
 the crunty treasury, such purchaser 
 would be subrogated to the rights of 
 the county in the lien for the taxes 
 and interest on the lands sold. See 
 also Wilhelm v. Kussell, 8 Neb. 123; 
 Reed v. Merriam, 15 Id. .S23; (s. c, 18 
 N.W. Rep. 737.) The trial court found 
 that the sale for the taxes for 1871 
 was a void sale. Such was, perhaps, 
 the fact. But that fact could not de- 
 stroy the lien of the purchaser for 
 the taxes paid by him at such sale if 
 the taxes were valid and the sale void 
 on account of the irregularities of 
 
358 
 
 THE LAW OF ASSESSSIEXTS. 
 
 iilarity, errors or omissions on the part of tlie officers 
 in the performance of their duties in relation thereto. The 
 extent and efficiency of such legislation (curative acts) is 
 considered in chapter 16. Re-assessment laws avoid some 
 of the objections successfully urged against curative acts ; 
 and are consequently more comprehensive in their remedial 
 powers. They provide for doing, in the mode prescribed, 
 acts which have been erroneously or irregularly done or 
 attempted, and for doing the acts omitted ; if not in the pre-, 
 cise mode required originally, to be done in a manner suit- 
 able to the circumstances and to insure justice and equality 
 to the tax-payer. It is no objection to a re-assessment that 
 the tax to be re-assessed has been declared illegal and void, 
 and its collection perpetually enjoined. In such case the 
 re-assessment is regarded and held to be a proceeding out- 
 side of tlie injunction and not prohibited by it.^ 
 
 the revenue officers above the as- 
 sessor. Neither could it destroy the 
 lien for subsequent taxes, legally 
 levied, if the taxes for the year for 
 ■which tlie real estate was sold were 
 void. The fact that the sale was 
 void furnishes the right of the pur- 
 chaser to the lien. The fact that the 
 real estate has been purchased for 
 taxes, whether at a void sale or not, 
 gives the purchaser tlie right to pay 
 subsequent taxes. If the title fails, 
 if the sale is void, he is then subro- 
 gated to the rights of the county." 
 Merriam ». Hemple, 22 N. W. Rep. 
 77.5. (Neb.) A similar provision ex- 
 ists in Arkansas, where the title of 
 the purchaser at a tax sale is invalid 
 by reason of the invalidity of the 
 tax under which the property was 
 sold. In the case of Lamb v. Far- 
 rell, 21 Fed. Rep. 15, the court used 
 the following language: " The pro- 
 visions of sec. 5214 of Gantt's Di- 
 gest are applicable to this case, and 
 the defendant is entitled to recover 
 in this suit the taxes, interest, pen- 
 alty, and costs of advertising charged 
 on the land at the time of the sale, 
 and all subsequent taxes paid by her. 
 
 with interest, and to have a lien de- 
 creed on the land for the same. 
 Hunt V. Curry, 37 Ark. 100. As to 
 the equities of a purchaser at a tax 
 sale, independently of the statute, 
 see Hickman v. Kempner, 35 Ark. 
 505-510; Hare v. Carnall, .39 Id. 196- 
 203; Ware ». Woodall, 40 Id. 42; 
 Chaffee v. Oliver, 39 Id. 531." 
 
 1 " The re-assessment of a tax, the 
 proceedings for the collection of 
 which have once failed, is not a re- 
 opening of the judgment by which 
 such former proceedings were de- 
 clared invalid. Such judgment re- 
 mains a perpetual stay of proceedings 
 to enforce the first assessment; but 
 it only affects that assessment, and 
 does not operate upon new proceed- 
 ings subsequently taken to re-assess. 
 It is a judgment merely in abate- 
 ment of the original proceedings, 
 and by which they are aimuUed, and 
 not one affecting the ground-work or 
 basis of the tax itself, upon which 
 the legislature may again proceed in 
 the exercise of its unrestricted power 
 over the subject. The original pro- 
 ceedings having failed, for reasons 
 wliieh the legislature may lawfully 
 
EE-ASSESSMENTS. 359 
 
 Sec. 197(7. — ^\7hen authorized must provide for Notice, and 
 JGqualization. — A re-assessment, being a substitute for the 
 original attempt to make an assessment, is properly subjected 
 to the same rules of notice and equalization or review by a 
 board or tribunal for hearing objections thereto, as in case 
 of an original assessment. It may not be the same tribunal 
 that bears appeals from original assessments, or that sits 
 upon the original assessment roll to pass upon the c^uestion 
 of increasing or diminishing the valuation of the entire 
 property contained therein, or that hears and determines 
 upon individual applications or complaints, but it is a neces- 
 sarj' ingredient of every law providing for re-assessments, 
 that an opportunitj' be furnished to each person to be 
 affected by a re-assessment, to be heard in objections 
 thereto upon proper notice, before some officer, board or 
 tribunal.^ 
 
 Sec. 198. a re-assessment cannot be made where the original 
 Assessment is valid, nor to make up Deficiencies. — A re-assess- 
 ment cannot be made when the original assessment is valid. 
 There can be but one assessment for the same tax. The 
 assessment styled a '■'■re-assessment" is, in fact, the only 
 assessment for the same tax — the first being only an attempt 
 and a failure. Where a part of the assessment is not real- 
 ized by reason of the inability of the tax-collector to collect, 
 a second assessment cannot be made on the tax-payers of 
 the district or town to make up the deficiency. If the de 
 ficiency has not been covered in the percentage or rate 
 
 obviate, and the basis for taxation lowed to elapse, a judge or court 
 still remaining, namely, the public commissioner may, upon an ex parte 
 benefit or improvement received, for application, permit the filing of ob- 
 which the legislature say the prop- jections under the provisions of the 
 erty of the citizens should pay, a re- statute which provides that " the 
 •assessment may he authorized." court or a jud^re may, on motion and 
 Mills V. Charlton, 29 Wis. 400; (s. C. good cause shown, in his discretion, 
 9 Amer. K. 589.) and upon such terms as may be just, 
 ^ A re-assessment made under the allow any proceeding in au action, 
 statute authorizing re-assessments in after its commencement, not ex- 
 Wisconsin, is subject to objections cepted therein, to he taken after 
 which may he filed thereto within the time limited by the statute has 
 twenty days. Where, through no expired." Woodruff v. Town of 
 fault of the party desiring to file Depere, 18 N. W. Rep. 702. (Wis.) 
 objections, the twenty days is al- 
 
360 
 
 THE LAW OP ASSESSMENTS. 
 
 levied, it can ouly be collected by an increased rate for a 
 future tax.^ 
 
 Sec. 199. a re-assessmsnt made at a party's own request, 
 of his individual Assessment, estops him. — Where a party re- 
 quests a re-assessment for the purpose of apportioning the 
 taxes as between himself and another, according to his own 
 claim of the sum each should pay, and it is done as requested, 
 he is estopped from afterwards denying the authority of the 
 assessors to make the re-assessment.^ 
 
 1 Oakliam v. Hall, 112 Mass. 538, 
 .539. " If the first tax was legally 
 assessed, the re-assessment was void. 
 The objection to the legality of the 
 first assessment is, that the assessors, 
 by mistake, included several persons 
 who were not inhabitants of the 
 parish, nor liable to be taxed in it. 
 The taxes against three individuals 
 could not be collected. This would 
 leave a deficit in the suiri to be 
 raised, but would not affect the rela- 
 tive proportions of the persons liable 
 to taxation. . . . The deficiency 
 could be supplied by increasing a 
 subsequent tax." Inglee v. Bos- 
 worth, 5 Pick. 500. 
 
 1 Where a, re-assessment had been 
 made at the request of a party, the 
 court used the following language: 
 " The court are of opinion that if 
 the assessors made the change in 
 their lists by the defendant's re- 
 
 quest, appmrtioning the taxes previ- 
 ously set to Brown, and setting to 
 Brown only what was laid upon his 
 other property, and to the defendant 
 what was laid upon real estate whicli 
 he claimed and held, the defendant 
 cannot now object to the new assess- 
 ment on the ground merely of want 
 of authority in the assessors, under 
 the statute, to make such altera- 
 tion or re-assessmeat. The parties 
 having acted in reliance upon his 
 declarations, and having thereby 
 changed their situation, apparently 
 discharging Brown from all liability 
 for so much of the taxes as are now 
 claimed of the defendant, it is con- 
 trary to good faith that he should be 
 allowed to allege tlae invalidity of 
 that which he himself has author- 
 ized to be done. Burr v. Wilcox, 
 13 Allen, 272. 
 
STREET RAILWAYS. 
 
 361 
 
 CHAPTER XVIII. 
 
 STREET EAIIiWAYS. 
 
 Sec. 200. Liability to Assessment. — A right of wa}', 
 granted to individuals or a corporation, authorizing the con- 
 struction of a railroad over a public street or highway, and 
 of operating cars thereon for the purpose of carrying pas- 
 sengers for hire, and authorizing the collection of fare for 
 such service, vv^hen such railway is constructed, becomes an 
 easement in the soil upon which the railway is laid, and is 
 such an interest in land as to be assessable as real estate.-' 
 The fact that the railway is laid upon a public highway or 
 street, makes it no less an easement. The dedication of 
 
 1 Washb. on Easements, 5, par. 5. 
 This learned author uses the follow- 
 ing language as to the character of 
 easements: "An easement always 
 implies an interest in the land, or 
 over which it is to be enjoyed. A 
 license carries no such interest. The 
 interest of an easement may be a 
 freehold, or a chattel one, according 
 to its duration. An easement must 
 be an interest in or over the soil." 
 See also, in the case of the North 
 Beach and Mission R. E. Co. , being 
 an assessment to pay for the widen- 
 ing of a street. The court said: 
 "It" (the corporation) "was au- 
 thorized to lay down a track for its 
 cars to run upon, and to receive iive 
 cents fare from each passenger for 
 any distance carried on said cars. 
 Tliis right of way is at least an ease- 
 ment in said street. It is an incor- 
 poreal hereditament, but it is still a 
 tenement and an interest in the 
 land." Speaking directly to the 
 point of the liability of the owners 
 of street railways to be assessed for 
 their railways, the court, in the same 
 
 case said: " Thtis it appears that the 
 appellant has acquired an interest in 
 the soil of Kearney street; that it 
 consists in the location of the road 
 in the street, its right to lay down 
 rails and attach them to the soil, and 
 to run its cars over them for profit; 
 its right to the exclusive use of them 
 and the streets, so far as is necessary 
 for that purpose, in the mode pre- 
 scribed; tliat this interest is prop- 
 erty — an interest in the land — and 
 that it is real estate, and the rails 
 thus laid down, attached to the soil 
 and annexed to the easement, be- 
 come themselves a part of the land— 
 of the estate of the company, — and 
 that in those states where no special 
 provision is made for taxing this 
 species of property in a different 
 mode, it is assessed as real estate in 
 the same manner and upon the same 
 principles as land — as if the company 
 owned the land itself upon which 
 the track is laid to the extent of its 
 interest in it." Appeal of N. B. & 
 M. E. E. Co., 32 Cal. 512. 
 
362 
 
 THE LAW OK ASSESSMENTS. 
 
 lands for a public highwaj^ is a dedication to the public, 
 and does not deprive the owner of any use of the land, not 
 inconsistent with such dedication. It is not a dedication 
 for railway purposes or uses, and when a right of way is 
 granted over the same land for a railway, the owner whose 
 land was originally taken for a public highway — at least, 
 when the land does not constitute a public street — is en- 
 titled to damages for this new additional use.^* 
 
 2 Under a statute of Khode Island 
 providing "Tliat the assessors of 
 taxes in the several towns, in assess- 
 ing taxes for real estate, may assess 
 the same either upon the owners of 
 the real estate or upon the persons 
 who hold or occupy the same," the 
 Providence Gas Co. was assessed for 
 its gas pipes laid in the streets of 
 the city, valued as real estate, at 
 fifty thousand dollars ; and the court 
 said: "If these pipes had been laid 
 in the land of an individual by parol 
 license, they would not become fix- 
 tures thereby. But if the owner 
 had granted by deed the right in fee 
 to lay pipes through his land, they 
 would be fixtures, because the an- 
 nexation would be under legal title. 
 . . . What then is the nature of the 
 right which the plaintiffs take under 
 their charter ? We think, when 
 exercised, it is an easement, an in- 
 corporeal hereditament, like the 
 right of a railroad company to build 
 and occupy their road, or a canal 
 company their canal, under the pro- 
 visions in their charter which grant 
 the power to take the land upon 
 rendering compensation to the 
 
 owners." Providence Gas Co. v. 
 Tliurber, 2 K. I. 21. 
 
 ' The fact that the railway is laid 
 upon a public highway or street, 
 makes the right of way no less an 
 easement. The dedication of lands 
 for a public highway, is a dedication 
 to the public, and does not deprive 
 the owner of any use of the land 
 not inconsistent with such dedica- 
 tion. It is not a dedication for rail- 
 way purposes or uses, and when a 
 right of way is granted over the 
 same land dedicated as a highway 
 for a railway, the owner whose land 
 was originally taken is entitled to 
 claim damages for this new or addi- 
 tional use. Williams v. The N. Y. 
 Cent. E. Co., 16 N. T. Ill, and 
 cases there cited. It was held in the 
 case of the " Appeal of the North 
 Beach & Mission R. K. Co.," that 
 the street railway of that corpora- 
 tion laid down through Kearney 
 street in San Francisco, under a right 
 of way, was liable, as an interest in 
 real estate, to assessment on prop- 
 erty benefited for the expense of 
 widening the street. Id., 32 Cal. 
 512. 
 
PEESXJMPTIOXS AND ESTOPPELS. 363 
 
 CHAPTER XIX. 
 
 PEESUMPTIOXS AND ESTOPPELS. 
 
 Sec. 205. Presumptions— in favor of Validity of Assess- 
 ments. — When objections iire made to an assessment based 
 upon an irregularity, the burden of proof is upon the party- 
 making the objections ; the presumption being in favor of 
 the regularity and validitj' of the assessment. Every intend- 
 ment will be indulged in favor of the assessment, where the 
 objector has had the benefit of the improvement and made 
 no objection until after the work was completed.(a) Where 
 the objection made was that the ordinance and resolution 
 authorizing the work were not published as required bylaw, 
 it was held that it was a sufficient answer to this objection, 
 that there was no proof in the record that the proceedings 
 of the common council in reference to the improvement 
 and assessment were not published. " The onus of proof is 
 on the petitioner, and every presumption is in favor of the 
 validity of the assessment until the contrary is made to 
 appear." ■* Where the charter of a city prohibits the levy- 
 ing of an assessment for a local improvement, in amount 
 exceeding half the value of a prior valuation last made for 
 taxable purposes, it is not necessary, in order to sustain the 
 assessment, to show that it does not exceed such valuation. 
 The burden of proof is upon the party making the objec- 
 tion, to show that the assessment exceeds the prescribed 
 limit. The city is not required to show that the limit was 
 not exceeded.^ On the same ground of presumption, an 
 objection that there was no valuation of the land, for the 
 reason that no dollar marks ($) preceded the figures, and 
 there was nothing to indicate that the figures were used to 
 represent so much money, will not be considered when made 
 
 (a) Stale — Kingsland w. Township ^la re Hebrew B. 0. Society, 70 
 of Union, 37 N. J. L. 271. N. Y. 479; In re Merriam, 84 N. Y. 
 
 1 In re Brady, 85 N. Y. 269. . 608, but see post, § 303, n. 2. 
 
36-i THE LAW OF ASSESSMENTS. 
 
 for the first time in the appellate court, for the reason that, if 
 made at the hearing, it might, and most probably would have 
 been shown that the column of figures wherein those to 
 which the objection was made were found, had an appro- 
 priate mark at the heading which referred to all the figures 
 in the column.8 In a case where the assessors, in their cer- 
 tificate required to be annexed to the assessment roll, omitted 
 to state that they had made an estimate of the value of all 
 the personal property within their district, according to 
 their best information and belief, it was held that it would 
 not be assurhed tliat they had failed to do so ; that the usual 
 presumption as to public officers, that they have done their 
 duty, will be applied to tlie acts of assessors.* 
 
 'Sec. 206. Presumptions — favor validity of Assessments 
 made by three or more, vrhere less than all act. — Where the 
 Board of Assessors consists of more than three, and it is 
 objected that only three acted in making an assessment, and 
 that the three who made up the assessment and gave the 
 notice, did not constitute a complete board of assessors, the 
 onus is upon the person making the objection, and he must 
 prove his allegations by affirmative evidence.^ '' 
 
 Sec. 207. Presumptions — ■will not be indulged where Defect 
 is apparent. — If the assessment upon its face shows an error, 
 no presumption will be indulged in to support it. It is not 
 indispensable to find that the assessors intended to commit 
 
 ' Id. 478, 9. obtained only to the center of the 
 
 * Parish v. Golden, 35 N. Y. 446 ; street, the court held that it was in- 
 
 Bergen Comity Savings Bank v. cumbent on the party objecting that 
 
 Township of Union, 44 N. J. L. the sewer was not laid in a street 
 
 601. over which the city had control, to 
 
 ' " The principle is well settled," show that the sewer was not laid in 
 
 said the court, " that where a body that portion of the street over which 
 
 of oflBcers are vested with authority the city did have control; and where 
 
 to discharge public functions, death, a further objection was made that , 
 
 absence, or the disability of one of the expenses for which the assess- 
 
 them does not deprive the remainder ment was laid embraced two sewers, 
 
 of the power, provided there is left one on another street, was overruled, 
 
 a sufficient number to confer to- on the ground that there was no 
 
 gether." In re Anderson, 60 N. T. showing that any injustice was done 
 
 459; Aster t). Mayor, 62 N". Y. 576; in combining the two sewers in one 
 
 In re Merriam, 84 N. Y. 608. contract, and apportioning the ex- 
 
 2 Where a sewer was laid in a street pense, as had heeu done. In re In- 
 over wliich the right of way had been gram, 64 N. Y. 312. 
 
PEESFMPTIOKS AND ESTOrPELS. 
 
 365 
 
 a wrong, where the assessment itself shows tlie error com- 
 mitted. Where an assessment omits some of the pi-operty 
 and assessed the entire cost of the improvements on the 
 other property, being in violation of the doctrine of unifor- 
 mity and equality, the entire assessment is void. The fact 
 that a contractor, in his items of proposals, placed, the 
 entire cost of all the work on items which were required to 
 be done only in front of a part of the property, and placed 
 no charge whatever to items required to be done only in 
 front of the other portion of the property, does not author- 
 ize the assessment of the cost of the entire work to the 
 property in front of which the work was done which was 
 charged for, in the list of items, in the bid. Such-an assess- 
 ment violates the principle of uniformity of taxation.^ 
 
 Sec. 208. That Assessments were apportioned according to 
 Benefits. — Where the assessment is required to be appor- 
 tioned according to benefits, it will be presumed that the 
 assessment was so apportioned, unless there is something 
 contained in the record showing that a different principle 
 was applied. ^^ 
 
 \" While every reasonable intend- 
 ment of good faith and regularity 
 should be indulged by the courts in 
 respect to the acts of public officers 
 in making these assessments, the 
 rights and interests of property 
 holders, upon whom the burdens 
 are imposed, should not be disre- 
 garded or overlooked. " In re Prot. 
 Episcopal Public School, 75 N. Y. 
 ;-!29. See posj, §291, n. 2. 
 
 - This presumption was applied in 
 the " Appeal of the North Beach 
 and Mission Kailroad Company in 
 the matter of widening Kearney 
 street." In answer to the question 
 stated by the court, " Did the com- 
 missioners apportion the amount 
 among the owners of lands and the 
 appellant according to the benefits 
 received by each?" the court an- 
 swered: "There is nothing in the 
 record to sliow — and \^ have no 
 reason to suppose — they did not. . . . 
 Besides, we cannot presume that the 
 
 commissioners gave an erroneous 
 construction to the act, and adopted 
 a principle different from that pre- 
 scribed. We might as well presume 
 that they adopted some principle 
 other than that prescribed in appor- 
 tioning the amounts upon the own- 
 ers of lands. Error must he affirma- 
 tively shown by the party relying 
 upon it. . . . The statute nowhere 
 requires the commissioners to ex- 
 pressly or affirmatively state that 
 they apportioned the amounts ac- 
 cording to benefits. The presump- 
 tions are in favor of the correct 
 action of the* court and commission- 
 ers, and the validity of the proceed- 
 ings." Appeal of the North Beach 
 Mission E. E. Co., 32 Cal. 520-1. 
 
 2 Where the list ol delinquent 
 lands returned described the lands 
 of a party assessed as the east ends 
 of blocks 99 and 100, and judgment 
 was taken against the undivided 
 third of the east end of those 
 
366 THE LATV OF ASSESSMEX^TS. 
 
 Sec. 209. "WTien Assessments cannot be Collaterally At- 
 tacked. — Where delinquent taxes are collected by suit in a 
 court of competent jurisdiction, under statutory authority, 
 brought against the pwner and the real estate assessed for 
 the tax, and due process has been regularly served, the 
 legality of the assessment in the first instance, also the 
 delinquency of the tax and its non-payment, are questions 
 involved and necessarily passed on in the suitj and a judg- 
 ment for the tax is a judicial ascertainment and determina- 
 tion in the aflBrraative of these questions. These facts 
 thereupon become conclusive against both the owner and 
 the real estate, and cannot be inquired into in any collateral 
 proceeding. A purchaser of the real estate at a sale under 
 such judgment, in order to establish in himself such title as 
 the judgment defendant had when the real estate was as- 
 sessed and sold, need only show the judgment, even though 
 it be erroneous on its face, in addition to valid process, issued 
 to the officer making the sale, and his deed thereunder. The 
 judgment defendant in such cases, in a suit brought by 
 the purchaser for possession of the lands sold, is estopped 
 by the judgment from setting up the invalidity of the assess- 
 ment. ■* 
 
 Sec. 210. Estoppels apply to Local Assessments — failure to 
 make Objections at the proper time. — The doctrine of estoppel 
 applies to the enforcement of assessments for local assess- 
 ments, as in other cases similar in character. A party will 
 not be allowed to oppose that which, by his silence, he has 
 led others to believe he favored, or acquiesced in. If, while 
 the work of a local improvement is being done, a property- 
 owner whose property is liable to assessment for a propor- 
 tionate part of the expense, stands by, seeing the work being 
 done, and makes no objection to the character of the work, 
 nor to the work itself — takes no steps to prevent the accept- 
 ance of it by the proper authority — he cannot, after it has 
 been completed, maintain a suit to enjoin the collection of 
 
 blocks, it was held in Illinois not property had been paid before judg- 
 
 to be a variance, for the reason that ment. Chiniquy v. People, 78 111. 
 
 it will be'presumed that it appeared 570. 
 
 to the court that the taxes on the ' Mayo ». Foley, 40 Cal. 282. 
 other undivided two thirds of the 
 
PKESirMPTIOJIS AND ESTOPPELS. 
 
 867 
 
 the assessment, nor maiutain a defense to an action brought 
 to enforce payment thereof.^ 
 
 1 City of Evansville v. Pfistever, 
 34 Ind. 45; Lafayette v. Fowler, 34 
 Id. 146. The 68th section of the 
 charter of the city of Lafayette, re- 
 lating to improvements of streets 
 and assessments therefor, contains 
 this provision : " Provided, no ques- 
 tion of fact shall be tried which may 
 arise prior to the making of the con- 
 tract." Under this proviso it was 
 held that " the plain intent of tlie 
 statute is to prevent the owner of 
 property to he henefited by a con- 
 templated Improvement made by the 
 common council, of the street in 
 
 front of his property, from remain- 
 ing silent until he has secured the 
 full benefit of the work and then 
 avoiding the payment therefor. If 
 he denies the power of the council 
 to order the improvement, he nnist 
 test the question by injunction be- 
 fore the work is done. Acquiescence 
 in the action of the council is by law 
 made to estop him from going be- 
 hind the making of the contract." 
 Palmer i>. Stulph, 29 Ind. 331. See 
 also Quinlan v. Myers, 29 Ohio St. 
 500. See also post, § 318 and notes. 
 
368 THE LAW or ASSESSMENTS. 
 
 CHAPTER XX. 
 
 MANDATORY AND DIRECTORY. 
 
 Sec. 220. Mandatory— taking the Official Oath, etc. An 
 assessment, being the initial step in a proceeding which may- 
 result in depriving the owner of his property without his 
 consent, or to encumber it with a tax, the acts required on 
 the part of the assessor to give him authority to make it, 
 must be performed, at least substantially, in the manner 
 directed by law. If these requirements be omitted or de- 
 parted from in any matter that is material, or that is intended 
 for the protection of the tax-payer, the assessment will be 
 invalid. Where the statute requires the iissessor to take an 
 oath, and prescribes the form of the oath or the matter to 
 be contained in it, the requirement becomes mandatory, and 
 the same rule applies when such oath or certificate is pre- 
 scribed, to be appended, annexed or attached to the assess- 
 ment roll when completed. Such acts are necessary to con- 
 fer upon the assessor jurisdiction to make the assessment. 
 What the statute expressly commands, the courts hold neces- 
 sary to be done.-^ A technical compliance is not requisite ; 
 
 ^The statute required that the a condition precedent to their " (com- 
 commissioners of estimate and as- inissioners' ) "right to perform the 
 sessment, before entering upon the functions of their office, and tlie 
 duties of their office, should take an oath was one of the safeguards pro- 
 oatli "faithfully and fairly to -dis- vided by statute for the protection 
 charge the duties,'' &c., and the of the property-holder, and the leg- 
 oath taken by them was that they islature, by prescribing the form, 
 would perform their duties " to the made the form of the essence of the 
 best of their ability," &c. ; held that act. That which the legislature has 
 tlie commissioners should have taken directed, the courts cannot declare 
 the oath as required by the statute, immaterial. It is a rule well estab- 
 and not having done so, their pro- lished by authority, that when one 
 ceedings were illegal. Merritt ». claims to hold another's property 
 Portchester, 71 N. Y. 311. (See under statutory proceedings, as un- 
 cases there cited. The following der a sale for taxes, he must show 
 is the language expressing the decis- that every material provision de- 
 ion of the court: "It" (taking the signed for the security of the per- 
 oath in the form prescribed), " was sons taxed for their protection, has 
 
MASDATOET AND DIEECTOItY. 
 
 3G9 
 
 a substantial performance will be sufficient.^ An entire 
 failure or omission to perform a jurisdictional act, it is 
 scarcely necessary to add, will be fatal to every assessment 
 
 been substantially complied with, 
 otherwise tlie claim will fail. In 
 fact, tlie rule is generally laid down 
 with much more strictness." Cru- 
 ger V. Dougherty, 43 N. Y. 121, and 
 cases cited. This case followed, in 
 Westbrook v. Wiley, 47 N. Y. 460; 
 Thompson u. Burhans, 61 Id, 65. 
 " A substantial compliance with the 
 requirements of the statute, pre- 
 scribing the oath to be taken and 
 subscribed by the assessor, is an es- 
 sential pre-requisite, a jurisdictional 
 fact, that must exist before the 
 board of county commissioners can 
 exercise any power in the taxation 
 of property, and that without such 
 oath there is in law no assess- 
 ment." Morrill v. Taylor, 6 Neb. 
 245. (s. c, 2 N. W. Kep. 736.) In a 
 later case in the same court the ob- 
 ject of requiring an oath, as pre- 
 scribed in that state, was adverted 
 to in thefoUowing language: "The 
 object of requiring the affidavit is: 
 first, as a means of identifying the 
 assessment roll as an official act of 
 the assessor, executed in conformity 
 to law; second, to prevent favoritism 
 and partiality, by requiring each as- 
 sessor to swear that he has dili- 
 gently endeavored to ascertain the 
 trae amount and value of the prop- 
 erty of each tax-payer In his pre- 
 cinct, and that he believes the full 
 value thereof is set forth in his re- 
 turn, and that he has not knowingly 
 omitted to demand of any person, of 
 whom he was required to make it, a 
 statement of the amount and value 
 of liis property which he was re- 
 quired by law to list, nor had he con- 
 nived at any violation or evasion of 
 any requirements of the law in rela- 
 tion to the assessment of property 
 for taxation. This oath should be 
 attached to the assessment roll. . . . 
 24 
 
 But, whether actually attached or 
 not, if actually made at the proper 
 time and filed with the assessment 
 roll, the mere fact that it was not 
 attached thereto will not, of itself, 
 • invalidate the assessment." Lyman 
 ?). Anderson, 2 N.W. Eep. 736. (s. c, 
 9 Neb. 367.) 
 
 ^ In Nebraska it was held, in an 
 equitable proceeding to enjoin the 
 collection of a tax, that the failure 
 to attach an oath to the assessment 
 . roll was not, of itself, sufficient 
 ground for the relief prayed for. The 
 court used the following language: 
 " Whatever effect the want of such 
 oath might have in an action at law, 
 it certainly can have none in a case 
 like this. A tax, in all other re- 
 spects proper, levied upon a valua- 
 tion unverified, but fair, is just as 
 equitable, and the owner of the prop- 
 erty, in conscience, just as much 
 bound to pay it as if the required 
 verification had been made." South 
 Platte Land Co. v. City of Crete, 7 
 N. W. Eep. 859. (Neb.) The same 
 ruling was made in the case as to a 
 statement that the city council 
 " never sat as a board of equaliza- 
 tion," and that, in consequence, 
 plaintiff had no opportunity " to 
 appear and show cause' that said 
 pretended assessment was too high," 
 no facts having been stated showing 
 the difference between the actual 
 value and the over-valuation com- 
 plained of. Id. In Wisconsin it is 
 held to be insufficient, in an appli- 
 cation to enjoin the collection of a 
 tax, to rest solely upon the want of 
 a verification, as provided for by 
 statute, to the assessment roll. It is 
 necessary for a party complaining of 
 any irregularity in the assessment to 
 offer to pay such tax as would result 
 from a proper assessment. Fifield v. 
 
370 
 
 THE LAW OF ASSESSMENTS. 
 
 a£feeted thereby.^ When it is necessary to find, determine 
 or declare a fact, before making or directing a local improve- 
 ment to be made at the cost of the property benefited, it 
 must appear affirmatively tliat such act was performed before 
 jurisdiction attaches.* Tliose actsi wliich are designed to 
 
 Martinette County, 22 N. W. Rep. 
 705. (Wis.) There are a long line 
 of decisions in Wisconsin to the ef- 
 fect that a party who would arrest 
 the collection of a tax must " dem- 
 onstrate by his complaint that his 
 property is not legally nor equitably 
 chargeable therewith." Kaehler d. 
 Dobberpuhl, 56 Wis. 483; (s. c. 14 
 N. W. Rep. 644.) "Honest mis- 
 takes of judgment, either on the 
 part of the assessors or of tlie 
 boards of review, which miglit ren- 
 der the tax apportionment unequal 
 iu fact, would not even render the 
 tax proceedings illegal or void at 
 law, much less in an equitable action 
 to avoid the entire tax." Marshall 
 r. Benson, 48 Wis.; (s. c. 4 N. W. 
 Rep. 385, 762,) and cases cited from 
 Wisconsin lieports; Fifleld b. Marti- 
 nette County, 22 N". W. Rep. 709. It 
 has been ruled upon the same way 
 in Nebraska and Kansas. Wood v. 
 Helmer, 10 Neb. 65-75; (s. c. 4 N. 
 AV. Rep. 968); Boecku. Merrium, 10 
 Neb. 199; (s. c. 4 N. W. Rep. 962); 
 Hunt u. Easterday, 10 Neb. 165; {s. 
 o. 4 N. W. Rep. 952) ; Challis v. Com- 
 ndssioners of Atchison Co., 15 Kan. 
 49; McNish v. Perrine, 16 N. W. Rep. 
 8.'37. Where the assessment roll was 
 nominally iu two parts, one of real 
 and the other of personal property, 
 but which was in reality and legal 
 effect only one roll, and the oatli was 
 attached to the personal property 
 )iart, it was objected that there was 
 no oath retiu-ned as to the assess- 
 ment of real property, and that as to 
 the real property, at least, the assess- 
 ment was void; but in answer to 
 this objection the court said: "Such 
 a ruling would be too technical. 
 
 Without the least doubt, the oath 
 which the assessor made and at- 
 tached to one division of his return 
 was intended by him, as its terms 
 fairly construed really import, to ap- 
 ply to his entire assessment for that 
 year, and to cover all of his official 
 duties under the law. This being 
 so, suppose that it had not been at- 
 tached to either of the two parts, 
 hut instead, simply returned with 
 them, and filed in the proper office, 
 would the entire assessment have 
 been vitiated, and the taxes depend- 
 ing thereon uneoUectable ? In no 
 case as yet has this court gone so far 
 as that, and we could not so hold 
 with our present understanding of 
 the law." Hallo v. Helmer, 10 N. 
 W. Rep. 569. (Neb.) In Michigan, 
 tlie failure of the assessor to verify 
 the assessment roll, as provided for 
 by statute, invalidates the entire 
 roll. Wliere no affidavit was made 
 or attached to the assessment roll, 
 the statute which provides that "no 
 assessor shall be allowed in any court 
 or place, by his oath or testimony, to 
 contradict or impeach any affidavit 
 or certificate made or signed by him 
 as such assessor," does not prevent 
 an assessor from testifying that he 
 did not make nor attach any oath or 
 affidavit to the assessment roll. In 
 such case his testimony would not 
 impeach or contradict his affidavit. 
 Tierney v. Union Lumbering Co., 2 
 N. W. Rep. 289. (Wis.) 
 
 'Tierney «. Union Lumbering Co. , 
 2 N. W. Rep. 289 (Wis.); McNish o. 
 Perrine, 16 Id. 839. (Neb.) 
 
 * The city charter conferred power 
 to lay out, establish, open, extend, 
 widen, straighten, alter, close, fill 
 
MANDATORY AND DIRECTORY. 
 
 871 
 
 give information or protection to the tax-payer must be com- 
 plied with, if not strictly, at least substantially ; otherwise 
 the assessment will be Void.^ The legislative power to pro- 
 vide the rules of evidence in the courts of the state and the 
 qualifications of witnesses, extends to cases involving the 
 validity of an assessment or a tax. It may provide that it 
 shall be incompetent for a party to impeach an assessment 
 by the statements or sworn testimony of the assessor, or any 
 officer ofScially connected with the making of the assess- 
 ment.® 
 
 Ill, or grade, &c., the streets, alleys 
 and highways ; and provided that 
 " whenevei- the common council 
 shall deem any such improvement 
 necessary, they shall so declare by 
 resolution, which shall be drawn by 
 the attorney of the corporation, and 
 said resolution shall describe the 
 contemplated improvement." This 
 requirement was held to be jurisdic- 
 tional, and a resolution " That tlie 
 petition be received and the improve- 
 ment be ordered — the grading and 
 tnrnpiking, and one half of the ex- 
 pense of the planking to be paid by 
 the property benefited." The peti- 
 tion having described the locality 
 and character of the work, was coii- 
 siilered not a compliance wilh the' 
 charter. There was nothing in the 
 resolution, declaring the improve- 
 ment described in the petition to be 
 necessary. The court said :" It may 
 seem, perhaps, that the legislature 
 have been over particular in requir- 
 ing from the council an express pre- 
 liminary declaration that they deem 
 the improvement necessary, when 
 tlie fact that they order it to be made 
 is evidence that such is their opin- 
 ion. ... It is evident, however, 
 that if we hold this resolution suffi- 
 cient, we also hold that the provision 
 cited from the charter, is idle, and is 
 one a compliance with which may 
 be dispensed with in any case." 
 Hoyt V. City of Saginaw, 19 Mich. 
 39; (s. c, 2 Amer. E. 78.) 
 
 ^Wliere the statute required the 
 verified certificate of the assessing 
 officer to state as to the valuation or 
 estimate of value placed by him 
 upon the property included in the 
 assessment roll, the following words: 
 "tliat I have estimated the same at 
 what I believed to be the true cash 
 value thereof, and not the price it 
 would sell for at a forced or auction 
 sale;" and the verified certificate 
 omitted the words '" and not at the 
 piice it would sell for at a forced 
 or auction sale," the court held the 
 assessment invalid. The court said 
 in passing on tlie point; "There is 
 not the slightest doubt the legisla- 
 ture intended that the adoption of 
 the form given, or of one that should 
 be equivalent in substance, should 
 be compulsory in every instance. 
 The failure to adopt it is a fatal 
 defect. (Citing Clark -». Crane, 5 
 Mich. 151); Siishee a. Stockle, 44 
 Mich. G61; (s. a, 7 N. W. Rep. 161). 
 See also Sinclair v. Learned, 16 N. 
 W. Eep. 676. (Mich.) On tlie same 
 point and to the same effect is Clark 
 B. Crane, 5 Mich. 151. (Seen. 1, §6.) 
 ' Where a statu:,ii provided that 
 " no assessor shall be allowed, in any 
 court or place, by his oath or testi- 
 mony^ to contradict or impeacli any 
 affidavit or certificate made or signeil 
 by him as such assessor," the court 
 held tliat the effect of the stat- 
 ute was to disqualify assessois as 
 witnesses to impeach their own 
 
THE LAW OF ASSESSMENTS. 
 
 Sec. 221. Acts to be done — -whether Directory or JVtan- 
 datory. — Whether or not tlie acts tb be done by an assessor, 
 provided for in a statute, authorizing an assessment for 
 taxable purposes, are directory or mandatory, depends upon 
 the fact whether such acts are necessary of themselves or 
 in connection with other acts, to give jurisdiction over the 
 person or property to be assessed.^ It matters not at what 
 stage of the proceedings, in making the assessment, the acts 
 are to be done ; whether or not they are to precede the list- 
 ing and estimate of value, or whether or not they consist of 
 a certificate or affidavit to be appended to the assessment 
 roll after it has been made up, containing facts which the 
 law requires as a record, showing the acts done in making 
 tiie assessments.^ But this must be understood as the doc- 
 
 assessments. Marshall v. Benson, 
 4N. W. Rep. 3S7. (Wis.) 
 
 ' In the case of Van Eensselaer v. 
 Whitbeck (7 ^". Y. .517-520), the cer- 
 tificate appended by the assessors to 
 the assessment roll was different 
 from that required by the statute. 
 The statutory certificate required 
 the assessors to state that they had 
 set down all the real estate situate 
 in their town, and that with certain 
 specified exceptions, had " estimated 
 the value of the said real estate, at 
 the sums which a majority of the 
 assessors have decided to be the true 
 value thereof, and at which they 
 . would appraise the same in the pay- 
 ment of a just debt due from a sol- 
 vent debtor," &c., and that with tlie 
 exception of those cases in which 
 the value of the personal estate has 
 been sworn to by the owner or pos- 
 sessor, we have estimated the same 
 according to our best information 
 and belief." The certificate of the 
 assessors states that they had "esti- 
 mated the value of the real estate, 
 at the sums which a majority of the 
 assessors have deemed to be proper, 
 and that the assessment roll contains 
 a true statement of the aggregate 
 amount of the taxable personal 
 estate of each and every person 
 
 named in the said roll, over and 
 above the amount of debts due from 
 such persons respectively, and ex- 
 cluding such stock as is otherwise 
 taxable, according to the usual way 
 of assessing." Tliis certificate being 
 part of the record furnished the evi- 
 dence of the invalidity of the assess- 
 ment. The court held that the 
 jurisdiction of the assessors attached 
 when this certificate was attached to 
 the assessment roll; that the certifi- 
 cate contains the judgment of the 
 assessors and the principle upon 
 which it is founded, and that with- 
 out this certificate the proceedings 
 would be fatally defective. The 
 showing made by the certificate is 
 that they assessed the real estate 
 "as they deemed proper," instead 
 of "according to its value," and the 
 personal property "according to 
 the usual way of assessing," in- 
 stead of " according to their best 
 information and belief of its val- 
 ue." It was therefore held that 
 by reason of the omission of these 
 acts subsequent to the listing of 
 names and property, the assessors 
 failed to acquire jurisdiction over 
 the persons and property, and that 
 their acts were void. 
 2 It is not, however, every omission 
 
MANDATORY AND DIRECTORT. 
 
 373 
 
 trine without any modification by statute. Where the statute 
 provides that all acts levying, assessing, and collecting taxes 
 are to be construed as directory and not mandatory, the 
 courts will so construe and apply the law. 
 
 General doctrine as to what is Mandatory and Director^/. 
 The general rule of construction, as applied to statutes relat- 
 ing to the assessment and collection of taxes, in the absence 
 of modifying statutes is, that what the law requires to be 
 done for the benefit or protection of the tax-payer is man- 
 datory; that all those acts which are intended to inform the 
 tax-payer for what real or personal property he is taxed, 
 and the character and amount of the taxes demanded of 
 him, are conditions precedent ; and if not substantially ob- 
 served, he is not legally taxed, and may resist the collection 
 of such tax; but if any of the acts required by the law to 
 
 in the certificate to be annexed to 
 the assessment roll that will consti- 
 tute a jurisdictional defect. Where 
 the statute required the assessors to 
 certify under oath, among other 
 things, til at the assessment roll con- 
 tained a true statement of the ag- 
 gregate amount of taxable personal 
 estate of each and every person 
 named in such roll over and above 
 the amount of debts due from each 
 person respectively, and excluding 
 such stocks as are otherwise taxable 
 (and such other property as is ex- 
 empt by law from taxation) at the 
 full and true value thereof," and 
 the words included within the paren- 
 thesis were omitted — it was held 
 that the certificate was sufficient to 
 give the supervisors jurisdiction to 
 levy the tax. Parish v. Golden, 35 
 N". Y. 464. ) The court held that the 
 statement that the assessment roll 
 contained a " true statement of the 
 aggregate amount of the taxable 
 personal estate," was equal to say- 
 ing that they had excluded property 
 exempt from taxation, and that this 
 requirement — the certificate to the 
 assessment roll — was to be regarded 
 as directory rather than jurisdic- 
 
 tional; that if the certificate con- 
 tains substantially the matters re- 
 quired by statute, the defect may be 
 disregarded, and if regarded as ma- . 
 terial, may be supplied by amend- 
 ment. It may seem, at first blush, 
 that there is an inconsistency be- 
 tween the cases of Van Rensselaer 
 V. Whitbeck, and Parish v. Golden, 
 but upon examination it will be 
 found that this consists more in the 
 language used than in the doctrine 
 announced. In Van Rensselaer v. 
 Whitbeck there was not a substan- 
 tial compliance with the legal re- 
 quirements, but a statement that 
 showed that the provisions of the 
 law, in making the estimate of val- 
 ues of real and personal property 
 had been violated, and the court 
 rightly decided, in the particular 
 case, tliat the assessors had never 
 acquired jurisdiction over the per- 
 sons and property listed by them for 
 taxation, while in the case of Parish 
 V. Golden, the coiu-t held that the 
 words omitted from the certificate 
 were substantially embraced within 
 the language used; that their omis- 
 sion did not constitute a jurisdic- 
 tional defect, and if they were re- 
 
37-1 
 
 THi!; LA'SV OF ASSSSS.VEXTS. 
 
 1)6 done, and which are defectively performed, might haTS 
 been dispensed with in the first instance, such defects or 
 omissions may be cured by retroactive legislation.^ Where 
 the statute provides that notice of the expiration of the 
 time for redemption shall be given by publication five times, 
 'thirty days prior thereto, in the city official newspaper, the 
 requirement is mandatory. In such case, all of the five 
 publications must have been given before the thirty days 
 commence to run.* Where an act is required to be done a 
 certain number of days or other time before a certain other 
 day upon which another act is to be done, in the absence 
 of statutory provision governing the computation of time, 
 the day upon which the first act is to be done must be ex- 
 cluded from the computation, and the whole number of days 
 or other time must intervene before the day fixed for doing' 
 the second act.^ 
 
 Sec. 223. Separate Headings and Separate Colximns — Man- 
 datory. — Where the statute requires an assessment roll to 
 
 garded as material, they could be 
 supplied as an amendment thereto. 
 
 * People V. Moore, 1 Ida. 670; 
 Smith i:. Cleveland, 17 Wis. 570, 
 note. {See post, § .jl9.) 
 
 * The charter of 8t. Paul required 
 that notice of the expiration of the 
 right of redemption shoiild be given 
 for at least thirty days, by at least 
 Jive publications prior to the time 
 when the right of redemption would 
 expire ; and a notice was given that 
 the right of redemption would expire 
 on the 24lh day of August, 1882. It 
 was published the first time on the 
 25th day of July, and the last time 
 on the 30th day of July, 1882. This 
 was held not a sufficient notice. 
 " To make a thirty days' notice by 
 Jive publications, it was necessary 
 that all five of the publications be 
 )tiade before the thirty days began 
 to run." Gaston v. Merriam, 22 
 N. W. Eep. 621. (Minn.) 
 
 ^ The statute required notices to 
 he posted "at least four weeks pre- 
 vious to said day" (meaning the day 
 
 of sale) "... in at least four pub- 
 lic places " in the county. The 
 notices were posted April 16lh for a 
 sale on the 14tli of May thereafter. 
 The court made tlie following ruling: 
 " The language of the statute above 
 quoted brings the case within the 
 rule laid down by the authorities, 
 and is a clear direction that four full 
 weeks or twenty-eight days must 
 intervene between the day of posting 
 the notices required, and the day 
 upon whig h the sale is to be made, 
 and that a posting of such notices on 
 the sixteenth day of April Is not 
 sufficient for a sale to be made on 
 the fourteenth day of May there- 
 after. Within the rule the notices 
 were not posted twenty-eight days 
 before the day of sale. The posting 
 of the notices being one day short of 
 the time required by the statute, 
 the sale is void. See Eaton v. Ly- 
 man, 33 Wis. 36; Collins v. Smith, 
 57 Wis. 286 (s. c. ir> X. W. Kep. 192;) 
 Ward V. Waters, -22 X. W. Kep. 813. 
 (Wis.) 
 
MAISTDATORY AND DIUKCTOHY. 375 
 
 1)6 SO made np as to keep certain items of tax in separate 
 columns under presciibed headings, the requirement is man- 
 datory and not director^-. This requirement will not be 
 included within a statutory provision, that "the acts be- 
 tween the assessment and the commencement of the suit" 
 (or other specified proceeding) "shall be deemed directory 
 merely." The making up of the assessment roll is part of 
 the assessment, and is not within such provision. Where 
 the statute provided that the form of the assessment roll, 
 among other things, sliould have columns headed respec- 
 tively, "Territorial Tax," "County Tax," "Total Tax," 
 "Remarks," a blending together of the items I'equired to be 
 placed in these separate columns, invalidates the tax.^ "It 
 is an established rule," says Justice Pickett, "that when a 
 particular form of assessment roll is prescribed by statute, 
 that form must at least be substantially followed ; the courts 
 will not admit the substitution of a different one." 
 
 Sec. 224. Assessment must be made ■within the time re- 
 quired—this Requirement Mandatory. Certificate to Assessment 
 Holl. — Where the law requires the assessor to finish and 
 complete the assessment roll on or before a day stated, the 
 time fixed becomes material, and the requirement is man- 
 datory and not directory merely. An assessment made after 
 such date is invalid and cannot be enforced. The object 
 of the law in fixing a time within which the assessment of 
 the entire county or district must be completed is to give 
 tax-payers an opportunity to inspect the assessment roll, and 
 to make objections to tiie same if deemed incorrect in any 
 particular. If the time for completion of the assessment 
 roll should be directorv merely — until after its return iti 
 fact, tax-payers could not know the amount of their assess- 
 ments.* The rule has been decided the other way in Massa- 
 chusetts and Nebraska, but in the latter state tlie decision 
 applies only to the return of the assessment roll.^ 
 
 1 People V. Moore, 1 Ida. 666-670. ing after the expiration of thirty 
 ' Sanderson v. Laeelle, 57 III. 444. days." Williams v. School District, 
 
 2 " The last exception is, that the 21 Pick. 82. The same ruling 
 tax was not assessed within tliirty was made in Ncbraslta, where the 
 days. The statute is directory in assessors did not return tlie as- 
 this respect, and not restrictive, and sessmeiit roll by the second Monday 
 they are not prevented from assess- in April, the time fixed by law for 
 
376 
 
 THE LAW OF ASSESSMENTS. 
 
 Wlien the assessment roll of the county or district is com- 
 pleted it must be officially certified by the proper officer. The 
 facts required by law to be covered by the certificate must 
 appear tlierein, substantially in the language of the statute.* 
 
 Sec. 225. — Dollar Mark must be given to represent Money. 
 In making up an assessment, the figures used must appear 
 to represent quantities or values in money. The headings 
 of the columns in which the figures appear, may be referred 
 to for the purpose of ascertaining what they are used to 
 represent. If nothing appears in the assessment roll as 
 made up which shows what the figures stand for, it will be 
 void for uncertainty.^^** 
 
 the return thereof. The court ruled 
 ou this point in the following words: 
 " This omission to comply literally 
 with the terms of the law was but a 
 mere irregularity, which in nowise 
 affected the levy. lu this particular 
 the statute is directory." B. & M. R. 
 R. Co. V. Saline County, 11 K. W. 
 Rep. 8.55. (Neb.) 
 
 'Where the statute required the 
 assessor to certify that he had esti- 
 mated the property at wliat he be- 
 lieved to be " the true cash value 
 thereof, and not at the price it would 
 sell for at a forced or auction sale," 
 and the certificate of the assessor 
 used th'e language of the statute, 
 omitting the word " true " before 
 the words "cash value," but in an- 
 other part of the certificate the fol- 
 lowing language was used, "and 
 that I have estimated the same at the 
 true cash value as aforesaid, accord- 
 ing to my best information and be- 
 lief," it was held that the language 
 
 first employed, " cash value," was 
 used as synonomous with the words, 
 "true cash value,'' but where the 
 word "true" was omitted before 
 the words " cash value," and the 
 words "or auction" were omitted 
 between the words " forced " and 
 " sale," it was held that the omis- 
 sion of these words, in the face of 
 the statutory requirement, was fatal 
 to the validity of the assessment 
 roll. Dickison v. Reynolds, 48 
 Mich. 162. (Ante, § 221.) 
 
 ' Where in the column of an as- 
 sessment, at which place the total 
 value of the taxable property ought 
 to have appeared, it read as follows: 
 "Total value of taxable property 
 245.011," and there was no mark or 
 sign to indicate dollars, cents or 
 mills or other character of money; 
 the assessment was held void for un- 
 certainty. Tilton V. Oreg. Cent. ifcc. 
 R. Co., 3 Sawyer 22. 
 
 The following form of an assessment was held void : 
 
 
 
 
 
 H 
 
 
 
 
 li 
 
 
 Patentee's 
 
 Part of 
 
 a 
 
 
 ^o 
 
 S 9 
 
 sa 
 
 
 
 
 Name. 
 
 Section. 
 
 o 
 a 
 03 
 
 a 
 < 
 
 
 S 5. 
 
 C0!0 
 
 03 
 
 a 
 
 8 
 
 03 
 
 d 
 o 
 
 i 
 
 o 
 
 Erastus Brown . 
 
 W.S.N. E. 
 
 3 
 
 89.74 
 
 180 
 
 1.09 
 
 72 
 
 1.08 
 
 
 289 
 
 Elisha Silvee . . . 
 
 S. W. 
 
 3 
 
 160 
 
 320 
 
 1.28 
 
 1.23 
 
 1.92 
 
 
 513 
 
MAUDATOEY AND DIRECTORY. 
 
 377 
 
 "Cpon a judgment rendered upon 
 an assessment, as shown above, Jus- 
 tice Davis, after stating the facts, 
 said: " There is no 'mark, word or 
 character' on the record of the 
 judgment to indicate tlie amount of 
 taxes for which it was rendered 
 against the land, which was un- 
 doubtedly the reason why the court 
 rejected the evidence. . . . This 
 question has been expressly decided 
 by the Supreme Court of Illinois. 
 That court has held that a judgment 
 for taxes is fatally defective which 
 fails to show the amount of tax for 
 which it was rendered, and that the 
 use of numerals, without some mark 
 indicating for what they stand, is 
 insufficient." Woods v. Freeman, 1 
 Wall. 398. See Lawrence v. Fast, 
 20 111. 340; Lane v. Bommelman, 21 
 111. 147. The word " Dolls." will be 
 read as an abbreviation of "Dol- 
 lars." Salisbury v. Shirley, 4 W. C. 
 Eep. 689. (Cal.) 
 
 ^ But where the column was head- 
 ed with "Dollar Mark," and the 
 item was worded — "Value of im- 
 provements on lands," and the 
 
 figures '"JQ.IOO" were carried into 
 the column thus headed, it was 
 held to be sufficient. People v. Em- 
 pire G. & S. M. Co., 23 Cal. 174. 
 
 ^So where the item was "Money 
 valuation 5,000: money loaned, vahi- 
 ation 12,5,000" with "dollar mark" 
 over the column, it was held to be 
 sufficient. People v. McCreeny, 34 
 Cal. 440. 
 
 * And where the Items are footed 
 up and "dollar mark" prefixed to 
 the aggregate, it is sufficient — thus: 
 " A saw mill, 4,000; a lot of timber 
 land, 1,000; tools and furniture, 
 300; two horses and wagons, 400; 
 total, $5,700," for the reason, mathe- 
 matically expressed, that " the whole 
 is equal to all its parts." People u. 
 Owyhee Lumber Co., 1 Ida. 422. 
 Where no dollar mark represented 
 the valuation figures, but the figures 
 in the proper column of taxes were 
 preceded by a dollar mark, it was held 
 to be sufficient. Bird v. Perkins, 33 
 Mich. 31. See also State v. Eureka, 
 &c. M. Co., 8 ISTev. 15; Lake County 
 V. Sulphur Banks S. M. Co., 4 W. 
 C. E. 186. (Cal.) 
 
378 THE LAW OF ASSESSMKNTS. 
 
 CHAPTER XXI. 
 
 DEFECTIVE ASSESSMENTS AND CITKATIVE ACTS. 
 
 Sec. 230. Power of Legislature to Legalize. — Tlie extent 
 of the power of the legislature to legalize defective or 
 invalid assessments by the passage of curative acts, has been 
 passed upon judicially by the courts of nearly all the states 
 of the Union. Some of the decisions doubtless, should 
 be read in the light of the provisions of tlie constitution of 
 tlie state where rendered. In California the constitutional 
 of attainder, ex post facto law, or law impaiiing the obligation 
 provision relating to the subject was in these words : " No bill 
 of contracts, shall ever be passed."^ Tlie provision of the 
 new constitution of the same state is in exactly the same 
 words.^ Under tliese constitutional limitations the legisla- 
 ture has frequently passed laws having for their object the 
 legalizing of assessments and other proceedings in relation 
 to the levy, assessment, and collection of taxes.* The 
 
 1 Sec. 16, Art. 1, Con. Cal. Cal. 1861, p. 471.) This Act, so far 
 
 2 Sec. 16, Art. 1, Con. Cal. as it relates to description, was the 
 8 In 1861 an Act was passed by the subject of judicial construction in 
 
 Legislature of California in the fol- the case of People v. Pico (20 Cal. 
 lowing words: " The assessments of 597). J ustice Nokton used the f ol- 
 taxes upon all property, real and lowing language in rendering tlie 
 personal, in the several counties of opinion of the court: "The same 
 this state, whether for the fiscal year section requires the complaint to 
 ending on the first day March, 1859, state the kind and quantity of prop- 
 &e., shall be, and are hereby, legal- erty assessed, both real and per- 
 ized and confirmed, and are rendered sonal, and if any real, to describe 
 valid and binding, both in law and the same. The action is to recover 
 equity, against the persons and prop- delinquent taxes on real estate, and 
 erty assessed." The Act further pro- the real estate is described in the 
 vided, that the district attorney complaint as the ' unsold portion ' 
 should commence an action to re- of eleven square leagues of land 
 cover such unpaid taxes, and should, known as Los Mokelamos. This is 
 in the complaint, "state the kind probably the manner in which the 
 and quality of the property assessed, land was designated in the assess- 
 both real and personal, and if any ment roll, but it describes nothing, 
 real, describe the same," &c. (Stat. By whom unsold ? What part is the 
 
DEFECTIVE ASSESSMENTS AND CUEATIVE ACTS. 379 
 
 extent of the power of the" legislature to make viilid and 
 binding by curative acts that which before was not valid or 
 binding, has of necessity been the subject of frequent decis- 
 
 unsold poition ? If it had been sold 
 by the tax collector by that designa- 
 tion, what specific part of the eleven 
 leagues would the purchaser have 
 acquired ? To give any effect to this 
 description it would be necessary to 
 reject the words ' unsold portion,' 
 and consider it as a description of 
 the whole tract. But there is no 
 reason to suppose the assessor in- 
 tended to assess the wliole tract to 
 the defendant, and tlie court has no 
 authority to make an assessment for 
 him. He may have assessed large 
 portions of the tract to other per- 
 sons who may have paid their taxes. 
 The plain intendment of the Act of 
 1S61 is only to authorize an action to 
 recover a tax which had been as- 
 sessed upon property in such a man- 
 ner that, if real estate, it could be 
 described in the complaint. If the 
 assessment was fatally defective in 
 this respect, no cause of action could 
 exist under the Act." It must be 
 remembered that the requirement of 
 description in an assessment is differ- 
 ent from that of a deed — tl^e former 
 must be complete and suiiicient 
 within itself, while the latter may 
 be aided by reference to another 
 deed, instrument or map, or by oral 
 evidence. (3 Waslib. Real Estate, 
 334. ) Tills same statute was con- 
 strued in a majority and a minority 
 opinion in tlie same court, in the 
 case of the People ». Holladay {25 
 Cal. 304-309.) After quoting the 
 1st section of the Act, Ch. J. San- 
 DEKSON, speaking for the majority, 
 said: " This language is broad and 
 comprehensive, and covers every as- 
 sessment whicli was in fact made, 
 however defectively and imperfectly 
 it may have been made in any re- 
 spect. It makes no distinction be- 
 tween defects, but cures them all; 
 
 it discriminates in favor of none, 
 and excepts none from the operation 
 of the statute. It does not provide 
 that such assessments as have such 
 and such defects shall be legalized, 
 and that other assessments which 
 have such and such other defects 
 shall be unaffected and left to stand 
 as they stood before, but, on the con- 
 trary, the Act proposes to heal every 
 infirmity wherever found, and give 
 full vigor to every assessment which 
 was in fact made during the three 
 fiscal years mentioned in the Act. 
 Where the statute makes no excep- 
 tion the courts can make none. 
 Where an assessment was made 
 during those years against a person 
 or against property, however defect- 
 ively in any particular, in view of 
 the law as it then stood such assess- 
 ment, in our judgment, was made 
 perfect in the eye of the law by the 
 Act in question. Matters of descrip- 
 tion constituted tbe more common 
 and obvious defects in such assess- 
 ments, and to hold that such assess- 
 ments are not cured, so far as the 
 validity of the assessment is con- 
 cerned, would be to defeat the main 
 object and purpose of the Act." The 
 opinion further holds, however, that 
 where the description of the prop- 
 erty, as stated in the assessment, is 
 deficient, that the complaint must 
 supply a correct description, and 
 that, "if the complaint does not do 
 this, the same consequences follow 
 as in other cases." The case of the 
 People V. Pico [ante], is reviewed 
 and criticised as follows: "The 
 case of the People v. Pico assumes 
 that an assessment may have certain 
 defects which are fatal, and certain 
 other defects which are not fatal, 
 the fij'st being incurable, and tlie 
 latter curable. We are unable to 
 
880 
 
 THE LAW OF ASSESSMENTS. 
 
 ion by the courts. Whilst the decisions have not all har- 
 monized, they have approximated uniformity so nearly that 
 
 comprehend the distinction at- 
 tempted to be made. An assess- 
 ment not fatally defective stood in 
 no need of the healing power of the 
 legislature, and does not, therefore, 
 come within the class upon which 
 the statute was intended to operate. 
 It was into fatally defective assess- 
 ments that the legislature intended 
 to infuse life, and if the statute does 
 not operate upon such, it necessarily 
 operates upon none. The doctrine 
 in Pico's case seems to us to nullify 
 the statute under considei'ation, by 
 making the assessment depend upon 
 antecedent laws for its validity, 
 rather than the statute. If the as- 
 sessment furnish the material for 
 the complaint, and the district at- 
 torney cannot go beyond the de- 
 scription of the property there 
 found, and can supply none of its 
 defects, the passage of the Act in 
 question was an idle ceremony, so 
 far as it attempts to legalize imper- 
 fect assessments." This case carried 
 the doctrine of legislative power to 
 cure defective assessments to an ex- 
 tent wholly beyond all, or nearly all, 
 cognate cases subsequently decided 
 in the same court. The California 
 cases of subsequent date are in har- 
 mony with the general tenor of cases 
 decided by other courts in different 
 states, and are foreshadowed in the 
 dissenting opinion of Justice Cub- 
 bey, rendered in the following lan- 
 guage : " This Act pre-supposes the 
 existence of an assessment to which 
 the words, 'are legalized and con- 
 firmed, and are rendered valid and 
 binding,' have direct relation. Then 
 the first inquiry must be to ascertain 
 if an assessment was made, and to 
 determine this involves the further 
 inquiry as to what acts were per- 
 formed by the assessor to effect the 
 assessment alleged to have been 
 
 made. The Act of 1857 . . . pre- 
 scribes the steps to be taken and the 
 acts to be performed in order to cre- 
 ate an assessment. These steps and 
 proceedings are the conditions on 
 which all subsequent proceedings 
 for the enforcement of the payment 
 of taxes depend for any vitality what- 
 ever. The various pre-requisite acts 
 which must be performed to consti- 
 tute the assessment when made, are 
 sometimes, and as experience has 
 proved are often, performed imper- 
 fectly and informally, that is to say, 
 are so performed as to come short of 
 a full compliance with the require- 
 ments of the law when strictly in- 
 terpreted. Assessments of this 
 character the Act of 1861 was de- 
 signed to aid, and in my judgment 
 was the only class of defective as- 
 sessments which it was in the 
 power of the legislature to cure. . . . 
 The evils remerliert by the Act of 
 1861 seem to have been those exist- 
 ing for want of a proper observance 
 of formalities of subordinate impor- 
 tance, but not of those vitally affect- 
 ing the levy and assessment. This 
 conclusion seems to me to be neces- 
 sary, in order to give any effect to 
 this Act, for the reason that the leg- 
 islature had not the power to render 
 an assessment valid and binding 
 which was originally invalid in sub- 
 stance, and which was therefore 
 void. It may be asked, what are 
 the informalities which may be 
 cured, and what are the matters of 
 substance to which the healing pow- 
 ers of the legislature cannot extend ? 
 The statute requires the assessor to 
 do certain things to make an assess- 
 ment, and to accomplish this end 
 the things required must be per- 
 formed in some manner. The man- 
 ner or mode of performance may, in 
 some particulars, be of the essence 
 
DEFECTIVE ASSESSMENTS AND CUEATIVB ACTS. 381 
 
 certain principles may be regarded as established. In all 
 cases where the officer or tribunal had no power to do the 
 
 of the assessment, and in others not 
 so. Where the act to be done is es- 
 sential to, or constitutive of the 
 thing to be acoomplishecl, its omis- 
 sion cannot be cured by legislative 
 enactment haying a retrospective 
 and retroactive operation, so far as 
 to impair rights already existing, or 
 to create a new obligation, or impose 
 a new duty, or attach a new disabil- 
 ity in respect to transactions or con- 
 siderations already past. To liold 
 that the legislature is competent to 
 render valid and binding from the 
 beginning that which, by the law 
 was at the time invalid and void, 
 seems to me to be involved in an in- 
 extricable absurdity. ... A statute 
 which in its scope and spirit lias for 
 its object to make valid and binding 
 the acts of courts or officers, which 
 when performed were null and void, 
 is to my mind in violation of tlie 
 rights of the citizens affected by it, 
 and, measured by a moral standard, 
 should be condemned by every court 
 of justice which may be called on to 
 deal with it. ... I do not object 
 that the legislature cannot pass re- 
 medial statutes, affording the means 
 to enforce rights on the one liand 
 and the perforfaance of obligations 
 on the other, which had existence 
 before the remedy was provided ; but 
 my objection opposes any construc- 
 tion of the Act of 1861 which has 
 the effect to give to an assessment a 
 character which it did not possess at 
 the time it passed from the officer 
 whose duty it was to see that it was 
 made. ... If the Act was designed 
 to do more than to remedy defects of 
 a mere formal character, and which 
 would ordinarily be remedied by the 
 principles .which are the basis of the 
 maxim, de minimus non curat lex, 
 then it must be held to have assumed 
 to give a character to the assessment 
 
 which it did not have, and tlien, fur- 
 tlior, to judge of it in the habili- 
 ments of its new creation, and that, 
 too, without affording to the party 
 affected by it any chance whatever 
 to obtain a reduction of the amount 
 thus constructively assessed, liow- 
 ever excessive and unjust it might 
 be. . . . If the Act goes to this ex- 
 tent, it should be restrained. It 
 shonlcl be limited to the cure of in- 
 firmities of minor importance, wliich, 
 according to the rules of construc- 
 tion applied in the consideration of 
 the proceedings of courts and offi- 
 cers of inferior jurisdictions, would 
 render ineffectual the assessment for 
 any efficient purpose. While I ad- 
 mit that the legislature has tlie power 
 to heal infirmities arisingfrom afail- 
 ure to pursue with exact precision 
 the course prescribed in matters of a 
 formal character, I deny its power to 
 cure evils affecting the substance of 
 the assessment, because in the one 
 case the law is remedial, and ope- 
 rates prospectively, and in the other 
 it is curative and retrospective, and 
 in its practical working deprives the 
 citizen of his .property without due 
 course of law. Give to the Act the 
 effect that is claimed for it on behalf 
 of the state, and it furnishes to the 
 public prosecutor a case, in its living 
 essence of legislative creation falsely 
 antedated, which the citizen who is 
 made the victim is not permitted to 
 gainsay by a statement of the truth, 
 that no valid assessment was made; 
 but he is permitted, after first as- 
 suming that a valid and binding as- 
 sessment was made at the time 
 alleged in the complaint, to answer 
 that he has paid the taxes, not neces- 
 sarily pn the property set down and 
 described in the assessment roll, but 
 on the property described in the com- 
 plaint." Justice Rhodes concurred 
 
382 
 
 THE LAW OF ASSESSJIEXTS. 
 
 act in question or having the power did not perform or 
 observe the requirements of the law authorizing the act in 
 respect to time, mode or some other particular necessary 
 
 in the dissenting opinion upon the 
 ground that " the legislature cannot 
 dispense with the performance of any 
 of those acts in past transactions, 
 and thus create a cause of action 
 where none existed at the time of 
 the performance of the last official 
 act." On the 4th of April, 1864, the 
 Legislature of California passed an- 
 other Act, designed to legalize de- 
 fective and invalid assessments. The 
 following is the language of the Act: 
 " The assessments of taxes upon all 
 property, real and personal, in the 
 several counties of this state, whether 
 for state, county, or other purposes, 
 made by the county, district, or town- 
 sliip assessors thereof, for the revenue 
 year commencing on the first Mon- 
 day of March, A. D. 1862, aiid for 
 the revenue year commencing on the 
 first Monday of March, A. D. 1863, 
 are hereby legalized and confirmed, 
 and rendered binding and valid, both 
 in law and equity, against the per- 
 sons and property assessed, and no 
 want of description or iudescription, 
 or informality or Irregularity, in the 
 description of the property assessed 
 U])on the assessment roll, if it can 
 be ascertained or proved by any 
 jiroper or competent evidence what 
 property is intended, shall invalidate 
 the assessment, but the same shall 
 be sufficient and be considered valid, 
 both in law and equity." (People v. 
 HoUiday, 25 Cal. 304-309.) The case 
 of the People «. S. F. Savings Union, 
 31 Cal. 132, was an action brought to 
 collect a delinquent tax covered by 
 this curative Act. The admitted de- 
 fect in the assessment in this case 
 consisted in the statement of valua- 
 tion. The attempt at making a val- 
 uation of the property consisted in 
 placing under a column headed, 
 "Valuation," the figures 101,937.18, 
 
 there being no dollar-mark, or sign 
 of any kind, at the head of the col- 
 umn or elsewhere indicating what 
 these figures represented. Justice 
 Sawvkk, in delivering the opinion 
 of the court, said: "It is claimed 
 that this Act cured the defect; but 
 we tliink not. There was no intelli- 
 gible valuation, and it is necessary 
 to ascertain the value in order to de- 
 termine the amount of the tax. The 
 Act in no way enables us to deter- 
 mine the value of the property, and 
 consequently we cannot ascertain 
 the amount of the tax. The very 
 essence of a valid apportionment of 
 the tax is wanting. The legislature 
 might, perhaps, have authorized the 
 assessor, even in the present stage of 
 the record, to amend the assessment 
 roll so as to show what he actually 
 intended, or, perhaps, have authorr 
 ized the assessor to testify upon the 
 trial what he designed to express by 
 the figures used. . . . Where there 
 is a defective description of the 
 property taxed, the law authorizes 
 it to be shown, by ' proper and com- 
 petent evidence,' if it can be done, 
 ' what pi-operty is intended.' But 
 suppose this cannot be ' ascertained 
 or proved by any proper and compe- 
 tent evidence ' — will the tax still be 
 valid ? Of course not. But the law 
 limits this remedy to defective de- 
 scriptions of the property, and does 
 not purport to authorize the assessor 
 to state wliat his intention was in 
 the use of certain figures for the 
 purpose of remedying a defective 
 valuation.- Nor can it be said that 
 the tax carried out by the auditor, 
 admitting that to be expressed with 
 sufficient certainty, was adopted and 
 legalized without I'eference to the 
 valuation. That would be to levy 
 an arbitrary tax without reference to 
 
DEFECTIVE ASSESSMENTS AND CURATIVE ACTS. 383 
 
 to give jurisdiction, the act is void, and subsequent legisla- 
 tion cannot cure the defect.* Where at the time of the 
 attempt to levj^ and assess the tax or assessment, the muuici- 
 ipal authority or officer liad jurisdiction of the subject 
 matter, and the acts necessary to be done to acquire juris- 
 diction and raalie a valid assessment are prescribed by 
 charter or statute, and the defect consists in a failure to 
 perform all the acts required, or to perform them or some 
 of them in the mode or within tlie time required, the legis- 
 lature has power to legalize the tax or assessment as 
 made, or authorize a re-assessnieut by providing for the 
 doing of the acts omitted, or bj' dispensing with tlie omitted 
 acts if not necessarily jurisdictional, and making an assess- 
 ment as originally attempted. Unless controlled by other 
 than ordiiinrj' constitutional limitations, the legislature has 
 power witliin certain exceptions, as where the defect or 
 invalidity is owing to entire failure to acquire jurisdiction 
 in the incipient proceedings, either by direct curative legis- 
 lation or provision for i-e-assessment, to legalize any tax or 
 assessment which it miglit have authorized or provided for 
 'in the first instance.^ ^ It is laid down as elementary doc- 
 value, and would be more objection- diction of the treasurer is expressly 
 able, if possible, under the Consti- limited by the first section of the 
 tution, than the assessment in act of 1815. Miller v. Hale, 26 Penn. 
 question in People v. Hastings (29 St. 437. No curative act can legalize 
 Cal. 449). We are satisfied that the a tax against lands which were never 
 Act in question does not reach the assessed. McCall d. Lorimer, 4 
 case. It follows that no legal tax Watts 351-352. 
 
 against the defendant was shown by ^ The case of Tefft v. City of Buf- 
 the evidence." (People v. S. F. Sav- falo (82 N. Y. 204), is illustrative of 
 ings Union, 31 Cal. 132.) the doctrine of the text. The at- 
 
 *In Pennsylvania it was held that tempt to levy and collect an assess- 
 a sale of luiseated lands, before one ment upon adjoining property to pay 
 year had expired from the time the the expense of a local street improve- 
 tax was delinquent, could not be ment had failed, and the assessment 
 cured by legislation. In deciding had been declared illegal. From the 
 the point Justice Woodward said : report of the case it would seem 
 "If it be granted that this was a that the city had neglected to give 
 regular assessment, or that its irreg- the proper notice of-intention to do 
 ularities were such as the curative the work, or that the order for the 
 provisions of the act of 1815 would work had not been adopted by a two 
 remedy, it cannot be claimed that thirds vote or both. An act of the 
 the taxes were ' due and unpaid for legislature legalized the proceedings 
 the space of one year' before the had, in attempting to make the ail- 
 sale — a condition on which the juris- joining property liable by assess- 
 
384 
 
 THE LAW OF ASSESSMENTS. 
 
 trine that, " if the legislature possess the pofver to authorize 
 the act to be done, it can bj* a retrospective act cure the 
 
 luent for the work done. The view 
 taken in this decision is, that the 
 legislature may legalize any assess- 
 ment, which it might have author- 
 ized in the first instance, and that 
 the assessment is in reality made by 
 the legislature. It is no objection 
 that the curative act deprives a party 
 of defenses which existed in his 
 favor before its passage. "A party 
 has no vested right in a defense 
 based upon an informality, not af- 
 fecting his substantial interests." 
 (Citing Cooley on Const. Lim. 370 
 and cases cited.) "The legislature 
 may change or modify the effect of 
 prior transactions, in cases where 
 retrospective legislation is not for- 
 bidden by the fundamental law. . . . 
 JTor did the proper exercise of legis- 
 lative power require that the mode 
 taken should be a diiection to thu 
 city to re-assess in formal compli- 
 ance with the requirements of the 
 charter, or of others to be contained 
 in the validating act; and for the 
 reason given above, that it is within 
 the power of the legislature to adopt 
 and affirm acts of a, municipality, 
 irregular merely, and to establish 
 the result thereof, though it has been 
 informally reached by the municipal 
 authorities. It is not meant to assert 
 that the legislature may, by a retro- 
 spective statute, validate municipal 
 action that trenches upon vested 
 rights, or affects substantial equities; 
 but to declare that where there was 
 municipal jurisdiction of the subject 
 matter, and the defects in the exer- 
 cise of it are irregularities in the 
 mode of procedure, it is within the 
 legislative discretion to adopt and 
 confirm the result of the informal 
 act, or to send back the matter to 
 the municipality, with power to be- 
 gin again, and go forward in the 
 mode prescribed by the original 
 
 authority. Where it has been ques- 
 tioned whether this discretion ex- 
 isted. It will be found that there was 
 lack of primary jurisdiction, or a 
 state of facts different from that in 
 the case before us." 
 
 Not necessary to require omitted 
 acts to be performed. Proceeding 
 further, the court held that itls not 
 necessary, where a nmnicipalty had 
 jurisdiction of the subject matter, to 
 provide for and require the acts 
 omitted, to be performed. " Now it 
 appears that the city assessors made, 
 and the city attorney filed in the 
 office of the city cleric an assessment 
 roll of a local assessment in accord- 
 ance with that plan" (one prepared 
 by the city engineer). " This action 
 being ratified and confirmed, there 
 was enough official action to make 
 the assessment a valid claim upon 
 the persons and the localized prop- . 
 erty specified in the roll. That what 
 the council and officers did not, is 
 not specifically supplied by the act, 
 matters not. What they did. Is rati- 
 fied and confirmed and made suffi- 
 cient for the end sought, that is, the 
 laying a collectible local assessment. 
 If there had been no omissions 
 there would need have been no act. 
 And what was done is made by tlip 
 act to stand instead of what was 
 omitted. It is not doubted but that 
 the city had the power, under the 
 charter ceteris paribus, to make this 
 repair in all the details of the plan 
 of the city engineer, and to raise the 
 money to pay therefor by local as- 
 sessment. It reached a declaration, 
 by proper municipal legislative au- 
 thority, that the assessment be laid. 
 It reached it by erring steps. The 
 legislature ratified those steps and 
 confirmed the end reached. Id. 210, 
 211, 216, 217. 
 
DEFECTIVE ASSESSMENTS AND CUKATIVE ACTS. 385 
 
 evils wliieh. existed, because the power thus conferred has 
 been irregularly- executed." ® 
 
 Sec. 231. TWhat Omissions and Defects may not be cured. 
 — The constitutional provision prohibiting legislatures from 
 making retroactive laws wliich impair the obligation of 
 contracts, enters into and becomes the controlling question 
 in testing the validity of all curative acts. Where the 
 defect consists of an omission to perform an act which is 
 necessary to confer jurisdiction upon the officer or tribunal, 
 the legislature has no power to cure the defect by a healing 
 act.^ Judge CoOLEY in his work on Taxation (p. 227) uses 
 
 "Thompson v. Lee County, 3 Wall. 
 ,S27; O'Brien v. County Com. of 
 Baltimore, 51 Md. 24 ; People v. 
 Mitchell, .35 N. Y. 552. 
 
 I The act of April 2d, 1870 (Cal.), 
 was intended to legalize tlie assess- 
 ments of San Luis Obispo County. 
 It provides that " all acts, orders 
 and proceedings of the board of 
 equalization of said county, touch- 
 ing the equalization of taxes, are 
 liereby ratified and confirmed and 
 declared effectual and legal " (Stat. 
 Cal. 1870, p. 666). Tins act was the 
 subject of judicial construction by 
 the Supreme Court of that state in 
 the case of the People v. Goldtree 
 (44 Cal. .325). Justice Khodes, in 
 delivering the opinion of the court, 
 reviewed the power of the legisla- 
 ture to cure defective assessments in 
 the following language: "It will be 
 readily conceded that the legislature 
 possesses the power to pass curative 
 acts, by which the various acts and 
 proceedings of tlie officers and board 
 charged with levying and assessing 
 of taxes, are rendered valid and legal, 
 notwitlistanding that irregularities 
 and errors have intervened; and the 
 cases are quite harmonious on the 
 point, in other states as well as this. 
 There are, however, defects, which 
 are mostly, either of a jurisdicti(mal 
 character or those which become 
 such by reason of some constitu- 
 tional provision, which are beyond 
 
 25 
 
 the reach of curative acts. It is im- 
 possible to draw a well defined line 
 between the classes of defects which 
 may, and those which may not, be 
 remedied by curative legislation ; 
 nor are the authorities on the sub- 
 ject reconcilable. There are defects 
 which, under our constitution, are 
 incurable by any subsequent legisla- 
 tion — such as an assessment of prop- 
 erty situated without the assessor's 
 county or district ; an assessment 
 made by the board of equalization; 
 the exemption of a particular per- 
 son's property from taxation ; the 
 levying of different rates of taxation 
 upon different species of property; 
 and a judgment for the i-ecovery of 
 taxes rendered in a case in whicli 
 the court had not acquired jurisdic- 
 tion of the person assessed ; and the 
 enumeration might be extended. In 
 those instances, the defect consists 
 of the want of power or jurisdiction 
 in the officer or tribunal assuming 
 to act in the matter; and we think 
 it may safely be laid down as a rule 
 in these matters, that whenever the 
 officer liad no power or jurisdiction 
 to do the act in question, and not 
 tliat in its performance, he did not 
 pursue the law, in respect to time, 
 mode, or some other particular, the 
 act is void, and subsequent legisla- 
 tion cannot cure- the defect." In 
 the above case the defect complained 
 of, consisted in adding by the board 
 
386 
 
 THE LAW OF ASSESSMENTS. 
 
 the following language " One very precise limit to the power 
 to cure these proceedings is this : They cannot be cured when 
 there was a lack of jurisdiction to take them. This is a 
 rule applicable to every species of legal proceedings. Cur- 
 ative laws may heal irregularities in action, but they cannot 
 cure a want of authority to act at all. What constitutes a 
 want of jurisdiction is the difScult question in those cases. 
 And in this regard the rules which apply to retrospective 
 and to prospective healing acts are the same. Therefore no 
 unconstitutional taxation can be confirmed, and none that 
 entirely wants any essential element of taxation. Taxation 
 without an assessment must consequently be incapable of 
 confirmation, because apportionment is indispensable. And 
 if the party has been illegally deprived of the opportunity 
 to be heard in opposition to the assessment, the defect is 
 jurisdictional."^ An assessment levied by a municipal cor- 
 
 of equalization, to the valuation of 
 an assessment made by tlie county 
 assessor — no complaint having been 
 filed with the board. After having 
 thus increased the valuation of the 
 assessment, the board cited the party 
 to appear and show cause why tlie 
 valuation should not be increased. 
 The party appeared and moved that 
 the order increasing the valuation 
 be cancelled — and after hearing evi- 
 dence the motion was denied. In 
 ruling on the action of the board, 
 the learned judge held that the board 
 of equalization had no jurisdiction 
 over an assessment made by the 
 county assessor, without a complaint 
 filed, specifying an objection to it; 
 that " the board of equalization, in 
 passing on the question whether an 
 assessment is too higli or too low, 
 acts in a judicial capacity, and its 
 decision is an adjudication, and as 
 clearly so as a judgment for the re- 
 covery of a tax." . . . "That the 
 want of power in the legislature to 
 legalize a judgment which was void 
 for the want of jurisdiction, is no 
 more manifest than it is in case of 
 an attempt to legalize an order of 
 
 the board which was void for the 
 same reason." In Vermont the 
 grand list must be sworn to by the 
 listers, and unless this is done, it is 
 invalid as a basis of taxation. Ajiy 
 attempt by the legislature to legalize 
 such list will not have the effect to 
 validate the taxes levied thereby. 
 Turnbridge v. Smith, 48 Verm. 648. 
 This case is in conflict with the gen- 
 eral doctrine that whatever the 
 legislature might have originally dis- 
 pensed with, may when omitted, be 
 cured by a liealing act. 
 
 ^In the case of Allen v. Arm- 
 strong, 16 Iowa 513, in a very able 
 opinion, Justice Dillon, as to the 
 extent of the power of the legisla- 
 ture to enact curative laws, uses the 
 following language: " If any given 
 step or matter in the exercise of the 
 power to tax (as for example the 
 fact of a levy by the proper author- 
 ity) is so indispensable, that without 
 its performance no tax can be raised, 
 then that step or matter, whatever it 
 may be, cannot be dispensed with, 
 and with respect to that, the owner 
 cannot be concluded from showing 
 the truth, by a mere legislative de- 
 
DEFECTIVE ASSESSMENTS AND CUEATIVE ACTS. 387 
 
 poration upon property outside of the corporate limits, to 
 pay the expenses of improving a street partly inside and 
 partly outside of the corporate limits, being void for want 
 of jurisdiction over the property, cannot be made valid by 
 after-legislation.^ Where there is a virant of jurisdiction in 
 a court, judge or tribunal, a defect for this cause cannot be 
 reached by legislation. 
 
 claration to that effect." It was 
 also determined by the Supreme 
 Court of Missouri that, "The asses- 
 sors have no jurisdiction to assess 
 property otherwise than as the stat- 
 ute prescribes ; and a void assessment 
 (which is equivalent to no assess- 
 ment at all) against tlie owner, can- 
 not be made the foundation of a sale 
 and conveyance of liis land, even by 
 legislative enactment. A valid as- 
 sessment is an essential prerequisite 
 to the lawful exercise of the power 
 of taxation. It is a necessary con- 
 dition of an effectual transfer of the 
 title." Abbott v. Lindenbower, 42 
 Mo. 168. And it was held in this 
 case that notwithstanding tlie statute 
 made a tax deed "conclusive eui- 
 dence that each and every act and 
 thing required to be done by the pro- 
 visions of this act had been com- 
 plied with, and the party offering 
 such deed in evidence shall not be 
 required to produce the judgment, 
 precept, nor any other matter or 
 thing, as evidence to sustain such 
 conveyance and the title thereby 
 acquired;" . . . that evidence "was 
 admissible to show that the judg- 
 ment . . . had been rendered with- 
 out notice to the owner of the land." 
 Where the defect consisted of an 
 omission of facts in an affidavit for 
 service of summons by publication, 
 and for which omission the court 
 obtained no jurisdiction — and the 
 curative act provided that " all orders 
 of publication heretofore or here- 
 after made under section 10, chap. 
 324 of the Revised Statutes, shall be 
 evidence that the court or officer 
 
 authorized to grant tlie same, was 
 satisfied of the existence of all facts 
 requisite to the granting of iuch 
 order or orders, and shall he evi- 
 dence of the existence of such 
 facts;" it was held that it was not 
 competent for the legislature to con-' 
 stitute by enactment of a statute, 
 that to be a judgment which before 
 was not a judgment; that, if for 
 want of a statement of sufficient 
 facts in an affidavit for service of 
 summons by publication, the court 
 acquired no jurisdiction, and the 
 proceedings following and resulting 
 in the formal entry of a judgment, 
 was in fact no judgment — or a void 
 judgment — it was not competent for 
 the legislature by a curative act to 
 legalize such judgment. Nelson v. 
 Eoundtree, 23 Wis. 370. 
 
 2 The city of Baltimore improved 
 a street or avenue which was laid on 
 the line dividing the municipality 
 from outside contiguous property of 
 the county. To pay the expenses an 
 assessment was levied upon the prop- 
 erty outside of the cityfrontingupon 
 the avenue. The assessment was 
 adjudged void as to this property, 
 and an act of the legislature was 
 passed legalizing the assessment and 
 authorizing its collection. This act 
 was declared to be unconstitutional, 
 principally on the ground that it was 
 an attempt upon the part of the leg- 
 islature to exercise judicial powers, 
 by declaring that to be valid which 
 the court had previously declared to 
 be void. "That which this court 
 said was illegally done, or done with- 
 out authority of law, or in contra- 
 
388 THE -LAW OF ASSESSJtEJTTS. 
 
 Sec. 232. what omissions and defects may be cured. — 
 
 Omissions and defects as applied to the subject of taxation 
 may be divided into two classes; 1, those which cannot be 
 cured by legislation ; and 2, those which may. The diffi- 
 culty however lies in determining to which class an acknowl- 
 edged omission or defect belongs. We have already defined 
 an incurable omission or defect to be one " which is neces- 
 sarj' to confer jurisdiction upon the officer or tribunal."^ All 
 others may therefore be said to be within the curative power 
 of legislation. On this point Judge COOLEY uses the fol- 
 lowing language: "The general rule has often been de- 
 clared that the legislature may validate retrospectively the 
 proceedings which they might have authorized in advance. 
 Therefore, if any of the directions of the statute fail of 
 observance which are not so far of the essence of the thing 
 to be done that they must be provided for in any statute on 
 the subject, the legislature may retrospectively cure the 
 defect. But there are probably some exceptions to tliis gen- 
 eral rule. If tlie law lias afforded tlie party an opportunity 
 to be heard when it might have been dispensed with, he has 
 a right to rely upon this for liis jDrotection and we should 
 doubt the right of the legislature to take it away by retro- 
 active law." ^ After jurisdiction has attached in favor of the 
 
 vention of law, and that the i^arties after reciting tliat the judge did not 
 could not be assessed for, this act of have " jurisdiction, or was not prop- 
 assembly clearly declares shall be erly authorized to sit therein," . . . 
 paid for by the parties, although it was enacted that the proceedings 
 they were relieved from that pay- be confirmed, "and that the same 
 ment by the final determination of shall he taken and deemed good 
 this court. There certainly could and valid in law, to all intents and 
 not be a more plain assumption of purposes whatsoever." In passing 
 judicial power by the legislature, upon the validity of this act, the 
 than was exercised by the enactment court said : " The proceedings against 
 of the law of 1864, ch. 344, and as Stone were in invitum, and there Is 
 such, this law must be pronounced no proof of any assent by him to 
 inoperative and void." Mayor, &c. the sequestration of his estate. They 
 of Baltimore v. Horn, 26 Md. 206. were not adjudged to be invalid by 
 In the case of Denny v. Mattoon reason of any error or omission, but 
 (2 Allen 361), which was a proceed- because there was an entire absence 
 ing in insolvency, it had been ad- of any jurisdiction or authority to 
 judged that the judge Issuing the commence or conduct them at all." 
 warrant of insolvency, did not have ^Ante, § 231. 
 jurisdiction to act as judge — where- ^Cooley on Taxation, 229. Asillus- 
 upon an act was obtained, wherein, trative of the second class of the 
 
DEFECTIVE ASSESSMENTS AND CURATIVE ACTS. 389 
 
 assessor or other ofEcer or tribunal, the other proceedings 
 may generally be regarded as directory and within the heal- 
 ing power of curative laws. Generally the jarisdiction of 
 an assessor is confined in the exercise of his authority and. 
 duties to his county or tax district ; and an assessment made 
 by him of either real or personal property outside thereof, is 
 invalid and cannot be enforced; but this a mere statutoiy- 
 regulation. It might have been otherwise provided by the 
 law-making power. It would not be without the province 
 of the legislature to so enact that an assessor would be ' 
 authorized to assess the real and personal property situated 
 anywhere withih the state to the owner in the county or 
 district where he resided, for all taxes for general state pur- 
 poses, or for all purposes ; although such a regulation would 
 
 omissions and defects wlnoli may be 
 cured, the following notes and ex- 
 tracts of cases are given. 
 
 Sow far a Tax Deed may be made 
 conclusive evidence. 
 
 In the case of Smith v. Cleve- 
 land (17 Wis. 556), the facts were 
 that certain lands had been sold 
 for taxes alleged to have been de- 
 linquent, and after the period for 
 redemption had expired, a deed was 
 made to the purchaser, who went 
 Into possession, and an action was 
 brought to oust him. The statute 
 under which the sale and deed were 
 made provided that a tax deed, exe- 
 cuted by the proper officers, and m 
 the prescribed form, should be con- 
 clusive in all courts, that the pro- 
 ceedings had been regular, fi'om the 
 valuation of the land up to the exe- 
 cution of the deed, and of the exe- 
 cution of all conditions precedent in 
 any way affecting the validity of said 
 deed, except that it should he prima 
 facie evidence only — first, of the lia- 
 bility of the land to taxation; sec- 
 ond, of the non-payment of the tax 
 for which the same was sold; and 
 third, of the non-redemption of the 
 land after sale and before the re- 
 cording of the deed. The Act fur- 
 ther provided, that the title conveyed 
 
 by the deed should not be invalida- 
 ted by any error previously made in 
 assessing, listing, taxing, selling or 
 conveying said lands, or in any other 
 proceeding prior to the execution 
 and delivery of such deed. It was 
 objected that the legislature had no 
 power to make the deed conclusive 
 evidence of the matters before re- 
 cited. In answer to these objections 
 the court (Dixon, Ch. J.), used 
 the following language: "The only 
 constitutional restraint is that re- 
 quiring the rule of taxation to be 
 uniform. In all other respects the 
 power of the legislature is su- 
 preme. The machinery of taxa- 
 tion — the mode of levying, assessing 
 and collecting — is subject to its dis- 
 cretion. The liability to taxation 
 and non-payment of the taxes being 
 admitted, the legislature may, as to 
 all other things, declare what shall, 
 or shall not, be essential to the val- 
 idity of the proceedings. The same 
 power which imposes a duty may 
 dispense with its performance. It 
 may say that the proceedings shall 
 be void for non-performance, or that 
 it shall nevertheless be valid. The 
 difference is between mandatory and 
 directory statutes. We take it to be 
 clear that the legislature may, by ex- 
 
390 
 
 THE LAW OF ASSESSMEIS^TS. 
 
 work injustice to districts required to protect the property 
 without any remuneration. As to personal property this, as 
 already shown, is the rule in the absence of controlling legis- 
 lation. (See §§ 39 and 40.) This however is a matter of 
 policy merely, to be determined by the law-making power. 
 If therefore under a statute making assessments of property 
 without the assessor's district, voidable merely and not void, 
 an assessor should include land lying in another county or 
 district, or personal property having au actual situs in an- 
 other county or district within the state, supposing it to be 
 in his own, and the owner should not be assessed for the 
 same land or personal property in the same year in the 
 county or district in which it should in fact be situated or 
 
 press words, declare any statute reg- 
 ulating the form of a proceeding to 
 be directory, tliat is, that the pro- 
 ceeding shall be valid althougli the 
 prescribed form be not pursued. . . . 
 After the execution and recording of 
 the tax deed, all defects and imper- 
 fections of this nature become imma- 
 terial. Let us take, for instance, the 
 first irregularity specified — the omis- 
 sion of the assessor to add his name 
 of office. The same legislative power 
 w;hich declared that he should sign 
 as ' assessor,' might have dispensed 
 with such addition, or with the en- 
 tire signature. Having declared that 
 he should sign officially, it might 
 still say that his omission to do so 
 should not vitiate the assessment. 
 It could prescribe the precise effect 
 which should be given to its own 
 enactment. . . . The same observa- 
 tions might be made of the neglect 
 of the town treasurer to insert the 
 year, of the affidavit of the posting 
 of notices, and so on to tlie end of 
 the list. The legislature might have 
 fixed the time, and provided for a 
 sale without notice or advertisement. 
 They may surely, by proper legisla- 
 tion in advance, guard against errors 
 and cure mistaltes when notice is 
 required. The provision m the Act, 
 making the deed conclusive evi- 
 
 dence of certain enumerated facts, 
 is treated as a statute of limitations, 
 the sale and all proceedings preced- 
 ing the execution of tlie deed being 
 open to objection all the time inter- 
 vening between tlie time of the levy 
 of the tax and the execution of the 
 deed for its non-payment. Within 
 this time, no legal presumption of 
 the regularity of the proceedings in 
 the levy, assessment or sale of the 
 property assessed is indulged in that 
 will shut out inquiry. All the rules 
 necessary to constitute a valid tax 
 apply. But after the sale, and after 
 the time for redemption has expired, 
 and the deed has been executed to 
 the purchaser, the legal presumption 
 of a valid tax, as to the particular 
 property included in the deed, is in- 
 dulged. While the door was open 
 for the legal owner to contest the 
 proceedings, they (the acts necessary 
 to create a valid tax), were consid- 
 ered essential, and the courts, in 
 their decisions, were reduced to the 
 necessity of overruling the tax title, 
 merely on account of some slight 
 irregularity or deviation from the 
 terms of the law. From this they 
 are relieved by the overruling and 
 sweeping provisions of the Act of 
 April, 1852." ( Id. 17 Wis. 570 and 
 note.) 
 
DEFECTIVK ASSESSMENTS AND CUKATIVE ACTS. 391 
 
 assessable, it would be within the power of the legislature 
 to cure the defect by reason of the location of the prop- 
 erty, at the time the act was done. But an assessment 
 made against a person without his domicile for property 
 within his domicile cannot be cured by after-legislation.^ 
 Wliere the assessment was not returned upon the day 
 required but afterwards, and generally where the acts and 
 proceedings required to be done in the levy and assess- 
 ment of the tax are not done within the time nor in the 
 exact mode as provided in the law authorizing the same, the 
 legislature may by retroactive legislation cure the omissions,. 
 irregularities and defects.* In Iowa the power of the legis- 
 
 ^ " The law of Pennsylvania pro- 
 vides that ' no alleged irregularity in 
 the assessment, or in the process, or 
 otherwise, shall affect tlie title of the 
 purchaser; but the same shall be de- 
 clared to be good and legal.' In that 
 state taxes are a lien only on un- 
 seated or vacant lands and lots ; and 
 such only can be sold by the treas- 
 urer. The courts of that state have 
 enforced that statute provision with 
 such uniformity of construction that 
 a treasurer's deed of lands, not re- 
 deemed, is considered an undoubted 
 muniment of title. In Stewart v. 
 Shoenfelt, 13 Serg. & Rawle, 360, it 
 is decided tliat the assessor of one 
 township has no right to assess lands 
 lying in another township; but if he 
 does so, and the land is sold for the 
 payment of taxes, the sale is not 
 void, and the purchaser is protected. 
 In Thompson v. Breckeuridge, 14 
 Serg. & Eawle .346, it is decided that 
 the omission of the notice of sale, 
 required by the law, does not vitiate 
 the deed, but this decision is based 
 oil the law fixing the time for the 
 sale of lands if the taxes are not 
 paid. See Smitli v. Cleveland, 17 
 Wis. 571, n. Judge Coolet, in his 
 work on Cons. Lim. (p. 382, 1st 
 ed.), says: " If persons or property 
 were assessed for taxation in a juris- 
 diction where they were not, a 
 
 healing statute would be equally 
 ineffectual to charge them. In such 
 a ease there would be a fatal defect 
 of jurisdiction, and even in judicial 
 proceedings, if there was originally 
 a failure of jurisdiction, no subse- 
 quent law can confer it." 
 
 * Where a suit was brought to re- 
 strain the collection of a tax upon 
 the ground tliat the levy was upon 
 an appraisement of real estate of the 
 city assessor made in 1866, whereas, 
 it was insisted, the appraisement of 
 real estate, made for general pur- 
 poses of taxation in 1864-5, should 
 have been taken as the basis of the 
 city levy for the next ensuing five 
 years; also, the facts charged were, 
 that the assessor did not return his 
 lists imtil the 6th day of June, the 
 law requiring this to be done on the 
 1st Monday of June (4th day of the 
 month); that after the 2d day of 
 July, the assessor and an assistant 
 revised the whole list, and increased 
 the plaintiff's valuation from |30,000 
 to $80,000, there being no order by 
 the city council, on or after July 2, 
 extending the time for completing 
 the work of the assessor; that on 
 the 2d day of July the assessor ap- 
 plied for an order of extension, which 
 was not granted until the 18th of 
 July; that on the 25th of July, "the 
 corrected assessment of the assessor 
 
392 
 
 THE LAW OF ASSESSMENTS. 
 
 ture to cure defective assessments and defects by reason of 
 the levy of the tax, has been carried to the extent of legal- 
 izing assessments made before a levy of the tax.^ Where 
 
 and assistant assessor was received 
 by the council, and a time fixed for 
 the meeting of tlie hoaVd of equal- 
 ization, which met accordingly, and 
 acted" — subsequently, a statute was 
 passed in the following words: "All 
 levies of taxes heretofore made by 
 any incoiporated city in this state, 
 . whether the assessments have been 
 made by the city assessor or copied 
 from the assessments for state and 
 county revenue, be, and the same 
 are hereby legalized" — the follow- 
 ing language was used by the court 
 in construing this statute: "This 
 language is comprehensive enough 
 to include the assessment under con- 
 sideration, and no reason is per- 
 ceived why it is not within its spirit. 
 Indeed, appellant's counsel have not 
 chosen to consider in argument the 
 effect of this statute. Such statutes 
 sometimes operate harshly, and ordi- 
 narily their scope should not be ex- 
 tended by construction. Nevertheless 
 the subject is within the limit of the 
 law-making power, and it is not 
 within the province of the courts to 
 interpose obstacles to the execution 
 of the legislative will, when clearly 
 expressed." Musselman ». Logans- 
 port, 29 Ind. o3o. 
 
 6 On the 22d day of March, 1858, a 
 general Act was passed relating to 
 revenue, which took effect July 4tli, 
 1858, and repealed all prior Acts in 
 conflict with it, but no provision was 
 made by this Act for the levy and as- 
 sessment of taxes for 1858. At the 
 next session of the General Assem- 
 bly (April 2d, I860,) an Act was 
 passed to " enforce the collection of 
 delinquent taxes for the year 1858, 
 which in the preamble referred to 
 the prior legislation, and said omis- 
 sion, reciting further, that the taxes 
 of the year 1858 were levied and as- 
 
 sessed in pursuance of the laws in 
 force prior to 1858. The Act legal- 
 ized the levy and assessments for 
 1858 " with like effect as if chapter 
 152 had not been enacted," and made 
 it lawful and the duty of tax collec- 
 tors to collect these taxes; as in other 
 cases of delinquent taxes assessed 
 pursuant to law; and also declared 
 that the title to all property sold for 
 delinquent taxes so levied and as- 
 sessed "shall vest in the purchaser 
 with like effect as if said taxes had 
 been legally assessed, and said sales 
 had taken place in pursuance of 
 law." In construing this statute, 
 the court used the following lan- 
 guage: " The point made upon this 
 legislation is that it was not compe- 
 tent for the General Assembly to 
 thus legalize the levy and assess- 
 ment of 1858; that as there was no 
 law at the time authorizing such 
 levy and assessment, all proceedings 
 thereunder, notwithstanding the cu- 
 rative Act, were illegal and void. 
 Whatever doubt there might be, if 
 the Act of 1860 had taken effect 
 after the sale and purchase under 
 which plaintiff claims, thei'e can be 
 no room for controversy when it is 
 remembered that it was passed and 
 took effect long prior to that time 
 (May 9th, 1860.) That it is compe- 
 tent to thus legislate, we entertain 
 no doubt. The power of the legisla- 
 ture to pass acts of this character, 
 conducive as they are to the general 
 welfare, and based upon considera- 
 tions of controlling public necessity, 
 is, in our opinioii, undoubted. It 
 does not interfere with vested rights, 
 nor impair the obligation of any con- 
 tract." Boardnian v. Beekwith, 18 
 Iowa 293. It will be observed that 
 this case makes a distinction be- 
 tween the curative effect which this 
 
DEFECTIVE ASSESSMENTS AND CUEATIVE ACTS. SQS 
 
 an item not authorized is united with valid items, the assess- 
 ment is rendered illegal, but a re-asaessment of the valid 
 item may be made by existing or subsequent legislation.^ 
 
 Sec. 233. when Curative Acta take Effect — After Suit 
 brought and before Judgment. — It has been decided in Cali- 
 fornia that curative acts cannot retroact upon omissions 
 and defects in the levying, assessment and collection of 
 taxes or assessments after action or suit commenced, and 
 before judgment in an action or suit brought to enforce 
 or defeat them : ^ but in Massachusetts and New Jersey the 
 
 Act may exert upon acts done before 
 and acts don% after its passage. 
 Where the necessary acts have been 
 performed, but do not appear in the 
 certificate, written statement or rec- 
 ord required, it is within the province 
 of the legislature to cure the omis- 
 sion or defect by retroactive enact- 
 ment. In Pennsylvania an Act was 
 passed legalizing all deeds executed 
 by husband and wife prior to a date 
 stated, where the required facts had 
 been informally stated, or had been 
 omitted in the certificate of the ac- 
 knowledging officer, and in answer 
 to the objection that the Act was re- 
 pugnant to the Constitution of the 
 United States, because it impaired 
 the obligation of a contract by mak- 
 ing a defectively executed deed alien- 
 ate the title to the land described in 
 the deed, from the grantors named 
 therein to the person named as the 
 grantee therein, whereas, without 
 the Act, the title to the laud re- 
 mained vested in the heirs of said 
 grantors, the court used the follow- 
 ing language: "As to the first 
 point, it is clear that this court has 
 no right to pronounce an act of the 
 state legislature void, as contrary 
 to the Constitution of the United 
 States, from the mere fact that it di- 
 verts antecedent vested rights of 
 property. The Constitution of the 
 United States does not prohibit the 
 states from passing retrospective 
 laws generally, but only ex post 
 
 facto laws. Now it has been sol- 
 emnly settled by this court, that the 
 phrase ex post facto laws Is not ap- 
 plicable to civil laws, but to penal 
 and criminal laws, which punish no 
 party for acts antecedently done 
 which were not punishable at all, 
 or not punishable to the extent or 
 in the manner prescribed. In short, 
 ex post facto laws relate to penal 
 and criminal proceedings which im- 
 pose punishments or forfeitures, and 
 not to civil proceedings which affect 
 private rights retrospectively." But 
 speaking directly of the character of 
 the Act, the court said that it does 
 not impair any contract nor invali- 
 date any title. "It supposes the 
 titles of femes covert to be good, 
 however acquired, and only provides 
 that deeds of conveyance made by 
 them shall not be void because there 
 is a defective acknowledgment of the 
 deeds by which they have sought to 
 transfer their title. So far, then, as 
 it has any legal operation, it goes to 
 confirm, and not to impair, the con- 
 tract of the femes covert. It gives 
 the very effect to their acts and con- 
 tracts which they intended to give, 
 and which, from mistake or acci- 
 dent, has not been effected." Wat- 
 son V. Mercer, 8 Peters 110 (11 
 Curtiss, Dec. 40.) 
 
 " State— Randolph v. Plainfield, 38 
 N. J. L. 94. 
 
 ' In proceedings levying an assess- 
 ment upon property benefited, to 
 
394 
 
 THE LA"W" OF ASSESSMENTS. 
 
 ruling has been the other way.^ Under the ruling of the 
 states last named, curative acts take effect by relation, as 
 
 pay the expenses of a local improve- 
 ment, the omission consisted of a 
 failure to make an order directing 
 notice of the award of the contract 
 for doing the work to be published 
 as required by law, although such 
 notice had been published without 
 the order. Suit was commenced to 
 enforce the assessment, and the 
 cause was submitted ou the 24th of 
 February, 1873, and the court filed 
 its findings of fact and conclusions 
 of law on the 8th of January, 1875. 
 An act was passed ou the 25th of 
 March, 1874, in terms validating,' 
 ratifying and confirming all orders 
 and resolutions of the board, in rela- 
 tion to this local improvement, and 
 the resolution of award, and all con- 
 tracts made under said award, and 
 all proceedings of the board relating 
 thereto, and of the superintendent 
 of streets. Upon this state of facts 
 Justice Ehodes, speaking for the 
 court, said: "The board of super- 
 visors not having made an order for 
 the publication of the notice of 
 award of the contract, all the pro- 
 ceedings, including the assessment, 
 subsequent to the award, were void. 
 The plaintiff relies upon the act of 
 March 25th, 1874, as not only vali- 
 dating the assessment, but as having 
 a retrospective operation, which 
 necessarily affects this action. The 
 action had been finally submitted 
 for decision before the passage of the 
 act. Assuming that the legislature 
 may itself make the assessment, or 
 what amounts to the same thing, 
 validate a void assessment, does the 
 act have the effect to make the as- 
 sessment valid, by relation, as of the 
 date of the invalid assessment, or 
 does it become valid only at the date 
 when the act took effect ? The act 
 does not furnish a new rule of evi- 
 dence, nor does it merely cure irreg- 
 
 ularities or formal defects in the 
 proceedings or the assessment ; but 
 if valid it creates a lien upon prop- 
 erty which before the passage of the 
 act was not chargeable with the lien, 
 and gives to the contractor and his 
 assigns a cause of action for its en- 
 forcement. The assessment, in our 
 opinion, if it became a lien by virtue 
 of the act in question, became such 
 at the date of the passage of the act, 
 and did not take eff«t, by relation, 
 as of a prior date. There being at 
 the commencement of the action no 
 lien in fact upon the property, and 
 the lien created by the act not tak- 
 ing effect as of a prior date, the 
 action cannot be maintained. Eels 
 V. Graff, 51 Cal. 90. See also Peo- 
 ple V. O'Neil, 61 Cal. 91. The same 
 ruling was made where the resolu- 
 tion of intention was published, but 
 the fifth day fell on Sunday. The 
 cause was pending when the cura- 
 tive act was passed, and the court 
 held that it did not attach or take 
 effect because the action had been 
 commenced, before the curative act 
 was passed. People v. McCain, 51 
 Cal. 361. In the case of State — 
 Sharp V. Apgar, 31 N". J. L. 359, 
 the facts were that an assessment 
 for town taxes included a large 
 item which had been voted by a 
 town meeting to pay bounty money ; 
 that no law existed at the time for 
 levying or including this item; that 
 after proceedings by certiorari had 
 been commenced, an act of the leg- 
 islature was passed, ratifying, con- 
 firming, and in all respects making 
 valid and binding the " doings of 
 said town meeting and of the asses- 
 sor and collector, assessing and col- 
 lecting said bounty tax ; whereupon 
 the certiorari proceedings were dis- 
 missed." It is also held in the same 
 court that, "It is not material that 
 
DEFECTIVE ASSESSMENTS AND CITEATIVE ACTS. 395 
 
 of the date of the invalid or defective assessment or pro- 
 ceeding which they are designed to cure. 
 
 the legislative act was passed wbile 
 the writ of certiorari was pending 
 ia the case." The bringing of a suit 
 vests no right to a particular judg- 
 ment; the case must be determined 
 on the law as it exists when judg- 
 ment is rendered." State — Wal- 
 ter V. Town of Union, 33 N. J. L. 
 356; States Vreeland 1-. Town of 
 Bergen, 34 Id. 233, n. 1. Under a 
 statute providing for opening an 
 avenue at the expense of the 
 property benefited, commissioners 
 were appointed to make awards 
 for lands taken, and to make an 
 assessment against the owners of 
 the lands benefited. The commis- 
 sioners were required, after they 
 had reviewed their awards and as- 
 sessments to make out their deter- 
 mination in writing, stating the 
 quantity and value of the land taken, 
 with the names of the persons and 
 the amount of damages, and also a 
 general description of all lands and 
 property assessed for benefits, with 
 the names of the owners of the 
 lands within the assessable district. 
 The commissioners returned a list of 
 the names of the various persons in 
 their report, stated to be land owners 
 within the assessable district, with 
 the sum stated opposite their respec- 
 tive names for which they were 
 respectively assessed as resulting 
 benefits, for the lands severally 
 owned by them — without in any 
 manner describing the lands assessed. 
 They had, in fact, caused the land 
 to be surveyed and mapped, but 
 made no reference to such survey 
 and map in their award and assess- 
 ment. Subsequently an act of the 
 legislature was passed, confirming 
 the proceedings of these commis- 
 sioners. It appeared that they had 
 in fact acted on the survey and map 
 in making their awards and assess- 
 
 ments. This act was passed after 
 proceedings had been commenced to 
 vacate the assessment. It was held 
 that the legislature, having conferred 
 the power to make the assessment 
 which was actually made, it was 
 competent to cure any irregularity 
 or defect in the form in which such 
 power had been executed. People 
 ex rel. v. McDonald, 69 N. Y. 365. 
 The text of this decision may be 
 gathered from the following brief 
 extracts: "The assessment and ap- 
 praisal were, in fact, made in a man- 
 ner in which it would have been 
 competent for the legislature, under 
 the constitution, to have authorized 
 it to be made. . . . The awards were 
 therefore made, not by the legisla- 
 ture, but by commissioners regularly 
 appointed, and though they failed to 
 comply with some of the formalities 
 prescribed in the original act, the 
 legislature had the power to cure 
 this defect, which was merely in the 
 manner of execution of the author- 
 ity legally conferred upon them." 
 A curative act, if so framed, may 
 take effect after suit commenced, 
 and before judgment rendered in the 
 trial court, but will not reach or 
 affect a case which had already gone 
 to judgment before the passage of 
 the act. Ill delivering an opinion 
 involving this point. Chief Justice 
 TiLGHMAN said: "Since the judg- 
 ment in this case in the Court of 
 Common Pleas, an act of the assem- 
 bly has been passed for curing de- 
 fects in the acknowledgment of 
 deeds by married women. Had this 
 act been passed before the judgment 
 below, it would have cured the de- 
 fect above mentioned in the deman- 
 dant's acknowledgment, and there 
 would have been error in the court's 
 opinion. It is our unanimous opin- 
 ion that there is nothing unconstitu- 
 
396 
 
 THE LAW OF ASSESSMENTS. 
 
 Sec. 234. Curative Acts do not affect Judgments. — After 
 judgment has been rendered it cannot be reversed by any 
 act of legislation subsequently passed, which if existing 
 when the action was commenced, would have justified a 
 judgment in favor of the adverse party .^ 
 
 tional in the act of the assembly, 
 but it is also our unanimous opinion 
 that it does not extend, by retro- 
 spect, to render a judgment errone- 
 ous, which was entered before its 
 passage. Barnet d. Barnet, 15 Serg. 
 & E. 72. See also People v. Moore, 
 1 Ida. 670. 
 
 2 In Bacon v. Callender (6 Mass. 
 309), the question was raised whether 
 a curative act could affect actions 
 pending, or whether they could only 
 reach actions subsequently com- 
 menced, and the court could "see 
 no ground for the distinction; and 
 if it were competent for the legisla- 
 ture to make these provisions, to 
 affect actions thereafter to be com- 
 menced, the same provisions might 
 with equal authority apply to actions 
 then pending." Cooleysays: "The 
 bringing of a suit vests no lught to a 
 particular decision, and the case 
 must be determined on the law as it 
 stands when the judgment is ren- 
 dered." Cooley Const. Lim. 381 
 (Isted.) The same author says that 
 amendments may be allowed by au- 
 thority of a statute, in criminal cases 
 under a constitution forbidding retro- 
 spective legislation; and that if a 
 case is appealed and the law is 
 changed pending the appeal, the ap- 
 pellate court must decide according 
 to the law in force when the decis- 
 ion is rendered. This is doubtless 
 the rule as applied to criminal cases, 
 or cases involving fines and penal- 
 ties, and has also been applied to 
 civil cases in some of the states. 
 
 ^ A curative Act, legalizing an as- 
 sessment, became a law after suit 
 brought and judgment rendpred 
 upon a village tax, which was ad- 
 
 judged to be illegal, for the reason 
 that no record of any action levying 
 the tax existed. After the legalizing 
 Act was passed an appeal was taken, 
 and the appellate court, after re- 
 marking that the action of a village 
 levying a tax cannot be established 
 by parol, and that every essential 
 proceeding in the course of a levy of 
 taxes must appear in some written 
 and permanent form in the records 
 of the bodies authorized to act upon 
 them, proceeded as follows: "It 
 is claimed, however, that the curing 
 Act of February 28, 1873, entitled, 
 ' An Act to legalize the tax-roll of 
 the village of Mt. Clemens for the 
 year 1872,' does away with the force 
 of the objection. That Act does in 
 terms purport to heal all the defects 
 which have been pointed out. But 
 plaintiff's judgment was obtained 
 before the justice, before this Act 
 was passed. If regular when ob- 
 tained, it could not be reversed. The 
 legislature have no authority to re- 
 verse judgments, directly or indi- 
 rectly. The effect of the Act must 
 be so limited as not to interfere with 
 an existing judgment, or it would be 
 necessary to declare it void on prin- 
 ciples which are too elementary to be 
 discussed. The case had been al- 
 ready tried, and there was no fur- 
 ther trial to determine the merits. 
 The judgment had fixed the ques- 
 tions of fact, and the only matter 
 open in the circuit was whether, in 
 so doing, any legal error had been 
 committed. To allow such a judg- 
 ment to be vacated when there had 
 been no error committed, would be 
 a plain invasion of private right, and 
 a usurpation of judicial power which 
 
DEFECTIVE ASSESSIIEXTS AND CTJEATIVE ACTS. 397 
 
 Sec. 235. Curative Acts — Retrospective and Prospective. — 
 A distinction is made between curative acts intended to 
 take effect retrospectively and prospectively. In the former 
 class of statutes the rules restricting tlie power of the legis- 
 lature to reach and cure certain defects in the tax proceed- 
 ings, are applicable. In the latter class the power of the 
 legislature is more reaching and effective.^ 
 
 cannot be justified." MoserB. White, 
 29 Mich. 69. 
 
 I The case of Nelson v. Kounrltree, 
 23 Wis. 369, is in point. The action 
 was ejectment, and the defendant 
 justified under a tax deed. Dixon, 
 Ch. J., in delivering the opinion of 
 the court in reference to tlie former 
 class of statutes, said: "The affida- 
 vit for the order of publication, in 
 the proceedings taken by the present 
 "defendant against the unknown 
 owners of the land in controversy, 
 was fatally defective, within former 
 decisions on that subject, and the 
 court acquired no jurisdiction. The 
 action was against all persons, as 
 unknown owners, having any inter- 
 est in the land, and the affidavit 
 stated no cause of action against 
 any one" (Slokum v. Slokum, 17 
 Wis. 150; Eankin v. Adams, 18 Id. 
 292). " There being therefore no 
 judgment in the action, the question 
 arises as to the effect of the last 
 clause of sec. 1 of chap. 409, Laws 
 of 1865, which declares that, 'all 
 orders of publication heretofore or 
 hereafter made under sec. 10 of 
 chap. 124 of the Revised Statutes, 
 shall be evidence that the court or 
 officer authorized to grant the same 
 was satisfied of the existence of all 
 facts requisite to the granting of 
 such order or orders, and shall be 
 evidence of the existence of such 
 facts.' The proceedings in question 
 were taken, and the supposed judg- 
 ment rendered in the year 1861. If 
 it was competent for the legislature 
 to make this declaration, then it was 
 competent for it to have declared 
 
 that to be a judgment, which before 
 was no judgment, and binding upon 
 the party against whom formally 
 rendered, when before he was not 
 bound at all; for such is the direct 
 result. It is a proposition not to 
 be discussed at this day that the 
 legislature has no such power." In 
 reference to the class of acts, which 
 are designed to take effect pros- 
 pectively, in the same case the same 
 learned judge said : " The only ques- 
 tion arising upon that " (tax) " deed 
 is, whether it is open to impeach- 
 ment for irregularities merely. It 
 was executed in 1861, upon a sale 
 made and certificate issued in 1857. 
 By the statute in force at the time 
 of the sale, the deed to be executed 
 and delivered to tlie purchaser was 
 made conclusive evidence that all 
 the proceedings had been regular. 
 See Smith v. Cleveland, 17 Wis. 556, 
 in which the validity of the statute 
 was expressly affirmed. When the 
 sale takes ijlace under such a statute, 
 and the purchaser becomes entitled 
 by virtue of his contract to such a 
 deed, we think the same effect must 
 be ascribed to the deed, whenever 
 executed, or under whatever law, as 
 was given to it by the law in force 
 when the sale was made. The prin- 
 ciple is, that the law then in force 
 enters into and forms part of the 
 contract, regulating its obligation, 
 and defining the rights of the 
 parties; and that the purchaser ac- 
 quires a vested interest as to all pro- 
 visions beneficial to himself, and 
 constituting a material inducement 
 to the purchase, which the legisla- 
 
398 THE LA"W OP ASSESSMENTS. 
 
 Sec. 236. Curative Acts as applied to Assessments, — From 
 a review of the adjudged cases, it may be authoritativeljy 
 stated that, 1. Where the assessment is defective because of 
 the omission of an act, which by reason of a constitutional 
 or, in some instances, a statutory requirement must be per- 
 formed by a particular officer or tribunal before jurisdiction 
 is acquired, it is not within the power of the legislature to 
 legalize the defective assessment. 2. But where the assess- 
 ment is defective only by reason of the omission of an act or 
 acts defectively performed which are required by statutory 
 provisions, but not made necessary by constitutional re- 
 quirement, and which raiglit have been omitted, from the 
 statute providing for the tax or assessment without the vio- 
 lation of any constitutional requirement, the legislature 
 may, by a proper act, cure the defect by legalizing the 
 assessment. " The healing act," says Judge CoOLEY, " must 
 be confined to validating acts which the legislature might 
 previously have authorized. It cannot make good retro- 
 spectively acts which it had no power to permit." ^ 
 
 tui-e cannot afterward impair or de- was made and the certificate exe- 
 
 stroy. It is a principle wliich ap- cuted. The deed cannot, therefore, 
 
 plies to and governs the obligation be impeached, nor the title of the 
 
 of all other contracts, the terms and defendant disturbed for the irregu- 
 
 conditions of which are regulated by larities complained of. 
 
 law; and, unless an exception is to ' Cooley Const. Lim. 382. (Isted.) 
 
 be made of contracts for the pur- The legislature has no power to de- 
 
 cliase of lands at sales for unpaid clare a tax deed valid, which by law 
 
 taxes, which we conceive cannot he, was void as between the parties at 
 
 it applies to and must govern the the time of the passage of the act; 
 
 contract in question, and effect must so held where the Invalidity was a 
 
 be given to the deed according to want of description to identify the 
 
 the law in force when the purchase land, Orton v. Noonan, 23 Wis. 103. 
 
DUE PROCESS OP LAW — APPLIED TO TAXATION. 399 
 
 CHAPTER XXII. 
 
 DUE PROCESS OF LAW — APPPLIED TO TAXATION. 
 
 Sec. 250. "Due Process of Law" and "Law of the Land" 
 synonymous terms ; meaning as to " Life and Liberty " — and as to 
 Taxation. — It is a principle or law, made a leading feature 
 of the Constitution of the United States and of every state 
 in the Union, that "no person shall be deprived of life, lib- 
 erty or property without due process of law;" also that 
 private, property shall not be taken for public use without 
 just compensation. The phrases "law of the land" and 
 "due process of law" mean the same thing, and are used as 
 synonymous terms when employed to express the right of 
 the citizen to life, liberty and property.^ In the Dartmouth 
 College case Mr. Webster defined the term "law of tlie 
 land" in the following language : " Bj'' the law of the land 
 is most clearly intended the general law, which hears before 
 it condemns, which proceeds uponinquiry, and renders judg- 
 ment only after trial. The meaning is, that every citizen 
 shall hold his life, liberty, property and immunities under 
 the protection of general rules, which govern society. Every- 
 thing which may pass under the form of an enactment is not 
 the law of the land." ^ Chancellor Kent says : " The 
 words ' hy the law of the land^ as used originally in Magna 
 Charta, in reference to this subject" Cdeprivation of life, 
 liberty or propert}') "are understood to mean due process 
 of law ; that is, by indictment or presentment of good and 
 lawful men ; and this, says Lord Coke, is the true sense and 
 
 ^ Cooley Const. Lim. 353. (1st ed. ) lawed, nor exiled, nor in any manner 
 
 The Great Charter (Magna Charta) .destroyed, nor will we come upon 
 
 of English Liberties dates back to him or send against him, except by 
 
 June 19th, a. d. 121.5, and is con- legal judgment of his peers or the 
 
 tained in 37 chapters. A portion of law of the land." (Bouv. LawDic, 
 
 the 29th is in these words: "No Tit. Magna Charta.) 
 
 free man shall be taken or impris- ^ Cooley on Const. Lim. 353, (1st 
 
 oned, or disseised of his freehold, or ed.) 
 liberties, or immunities nor out- 
 
400 
 
 THE LAW OF ASSKSSJIENTS. 
 
 exposition of those words." And again: " The better and 
 larger definition of due process of law is, that it means law 
 in its regular course of administration through courts of 
 justice."^ Under the clause prohibiting the taking of pri- 
 vate property for public use without just compensation, it 
 has been held that the private property of A. cannot be 
 taken for a private road for the use of B. without A.'s con- 
 sent, even under a statute authorizing it, upon assessment of 
 damages and on payment or tender thereof.* It is bej^ond 
 all dispute that, under the constitutional restrictions, it 
 would not be within the power of the legislature to enact a 
 law that would authorize the taking of the life or the depri- 
 
 s 2 Kent Com. »13. " And by due 
 process, is meant one which, follow- 
 ing the forms of law is appropriate 
 to the case, and just to the parties 
 to be affected." Per Justice Field 
 in the Kailroad Tax Case', 8 Sawyer 
 274. 
 
 * " The right to take private prop- 
 erty for public purposes is one of the 
 inherent attributes of sovereignty, 
 and exists in every independent gov- 
 ernment. Private interests must 
 yield to public necessity. But even 
 this right of eminent domain cannot 
 be exercised without making just 
 compensation to the owner of the 
 property. . . . But there is no pi'O- 
 vision in tlie constitution that just 
 compensation shall be made to the 
 owner when his property is taken 
 for private purposes; and if the 
 power exists to take the property of 
 one man, without his consent, and 
 transfer it to another, it may be ex- 
 ercised without any reference to the 
 question of compensation. The 
 power of making bargains for indi- 
 viduals has not been delegated to any 
 branch of the government, and if 
 the title of A. can, without his fault 
 be transferred to B., it may as well 
 be done without, as with, a consid- 
 eration." . . . In reply to the claim 
 of power being in the legislature 
 without limitation as to the particu- 
 
 lar subject matter — the right of the 
 legislature to lay a road ovei' the land 
 of A. for the use of B. on payment 
 of a just compensation, by reason of 
 the words, " the legislative power of 
 this state shall be vested in a Senate 
 and Assembly," the court in the 
 case from which the above extract 
 is taken proceed to say: "But tlie 
 question does not necessarily turn on 
 the section granting legislative pow- 
 er. The people have added negative 
 words, which should put the matter 
 at rest. ' No member of this state 
 shall be disfranchised, or deprived 
 of any of the rights or privileges, 
 secured to any citizen thereof, un- 
 less hy the law of the land, or the 
 judgment of his peers.' (Const. 
 Art. VII. § 1.) The words ' by the 
 law of the land,' as here used, do 
 not mean a statute passed for the 
 purpose of working the wrong. That 
 construction would render the re-' 
 striction absolutely nugatory, ami 
 turn this part of the constitution 
 into mere nonsense. The people 
 would be made to say to the two 
 houses, 'you shall be vested with 
 the legislative power of the state,' 
 but no one ' shall be disfranchised or 
 deprived of any of the rights or 
 privileges' of a citizen, unless you 
 pass a statute for that purpose; in 
 other words, ' You shall not do the 
 
DUE PROCESS OF LAW — APPLIED TO TAXATION. 401 
 
 vation of the libertj"- of a citizen without observing the 
 forms and proceedings known to the common law, that is, 
 indictment or presentation, and a trial by jury. And if the 
 question were presented for the first time — if there were no 
 precedents nor usages of long standing to the contrary, it 
 would seem to follow as a necessary consequence that pri- 
 vate property, too, was within the same protecting power of 
 these organic provisions, and that under no circumstances 
 could private property be taken without the consent of the 
 owner, to enforce payment of a tax, without due proceed- 
 ings in accordance with the law of the land as above defined. 
 Indeed, such is the view taken by an eminent writer on tax 
 titles.^® But statutes providing regulations for levying, 
 
 wrong unless you choose to do it.' " 
 Taylor b. Porter, 4 Hill 143. 
 
 ° Mr. Blackwell, in his work on 
 Tax Titles, says: "Upon a careful 
 review of all the authorities, it may 
 be safely affirmed as a principle of 
 constitutional law, that the clause 
 in question, requires judicial as well 
 as legislative action, before any per- 
 son can be deprived of his life, lib- 
 erty or property the power 
 
 of the legislature, . . . consists in 
 the power to pass general laws for 
 the peace, safety and happiness of 
 the people, directing what they may 
 do or omit, and declaring the conse- 
 quences of a violation of such laws. 
 Here their power ceases. The appli- 
 cation of those laws to the cases of in- 
 dividuals, is assigned to other agents; 
 consequently the legislature has no 
 power, by its own mere action, to 
 deprive any citizen of his property." 
 Blackwell on Tax Titles, *25. 
 
 '' Pursuing the subject further, the 
 same author says: "The power to 
 levy a tax properly belongs to the 
 legislative power. The collection of 
 it involves the exercise of judicial 
 and executive functions. The legis- 
 latul-e levy the tax-^direct that a 
 demand shall be made on the owner 
 of the land for the tax charged 
 against it, and if payment is refused, 
 26 
 
 authorize the collector to seize the 
 body or goods of the dellnquejit, 
 and in case satisfaction is not had, 
 in one or the other of these modes, 
 power is conf erredwpon the collector 
 to sell and convey the land itself. 
 Now, before the power to sell the 
 land can exist under the law, the 
 fact of the levy and non-payment of 
 the tax, the demand and return of 
 no goods, or that the body cannot 
 be found, nmst exist. These facts 
 must be ascertained to exist before 
 the power of sale attaches. Whether 
 the power to decide the question of 
 delinquency is vested by law, in the 
 regularly constituted judicial tribu- 
 nals, or in those specially instituted 
 for that purpose, or in the collector 
 himself, can make no kind of differ- 
 ence; it is the exercise of judicial 
 power, and the officer who sells per- 
 forms an executive function; so that 
 in point of fact, the legislative, judi- 
 cial and executive departments of 
 the government, all aid in the exe- 
 cution of the taxing power. The 
 legislature declare what facts shall 
 constitute a cause of forfeiture; the 
 judiciary ascertain the facts, apply 
 the rule of law prescribed, and pro- 
 nounce a judgment of condemna- 
 tion." Id. *26. 
 
402 THE LAW OF ASSESSMENTS. 
 
 assessing and collecting taxes by distress and sale without 
 the intervention of judicial proceedings, have been in exist- 
 ence and enforced long before these phrases found their way 
 into or became part of the bill of rights of the federal and 
 state constitutions. Mr. Cooley, in his work on Taxation 
 (p. 37), says : " It has long been settled that while one is 
 to be protected in his interests by ' the law of the land,' he 
 is entitled to 'the judgment of his peers' only in those cases 
 in which it has immemorially existed, or in which it has 
 been expressly given by law." The clause recited from 
 Magna Charta does not imply the necessity for judicial ac- 
 tion in every case in which the property of the citizen may 
 be taken for the public use. On the contrary, a legislative 
 act for that purpose, when clearly within the limits of legis- 
 lative authority, is of itself the law of the land. And an act 
 providing for the levying of taxes and the means of their 
 enforcement, is, as we have seen, within the unquestioned and 
 iinquestionablfe power of the legislature. It is therefore the 
 law of the land, not merely in so far as it lays down a gen- 
 eral rule to be observed, but in all the proceedings and all 
 the process which it points out or provides for, in order to 
 give the rule full operation.^ Appropriate retroactive legis- 
 lation which legalizes taxes or assessments defectively levied 
 or assessed, providing for notice, hearing, and a correction 
 of errors, is due process of law in respect to taxation, if the 
 tax or assessment could have been authorised in advance. 
 It is no objection that the opportunity for the hearing and 
 correction of errors is provided for, subsequent to the levy 
 and assessment, or even the collection of the tax or assess- 
 ment.^ 
 
 ' It has never been held that tax- stitute a taking of property without 
 
 ation for general purposes, or for due process of law, iu the sense of 
 
 local improvements, is an infringe- the constitution ; nor is it a taking 
 
 nient of that clause of the constitu- of private property for public use, 
 
 tion relating to the acquisition and within the purview of that instru- 
 
 enjoyment of property. In Califor- ment." Hagar v. Supervisors of 
 
 nia it was decided in a well con- Tolo County, 47 Cal. 234. 
 
 Bidered case the right of trial by 'A. tax had been levied which was 
 
 jury has no application to proceed- defective, and an act of the legisla- 
 
 ings for the collection of taxes, ture passed, intended to legalize the 
 
 "Nor does the enforcement of a tax, but which was adjudged uncon- 
 
 valid tax, by whatever method, con- stitutional " because it was in effect a 
 
DUE PEOCESS or LA-W — APPLIED TO TAXATION-. 403 
 
 Sec. 251. "Due Process of Law " and "Law of the land" 
 defined as applied to the Collection of Taxes. — The power of 
 the legislature to provide by statute for the collection of 
 
 legislative assessment of a tax upon 
 a body of individuals without appor- 
 tionment or equality as between 
 them and the general body of tax- 
 payers." the fatal vice of the act 
 being the denial of an opportunity 
 of the persons assessed to be heard, 
 and to have proper corrections made. 
 Subsequently another curative act 
 was passed in respect to the same 
 taxes, wherein provision was made 
 for notice, opportunity to be heard 
 and correction of all errors, and for 
 proper deductions, remissions, and 
 restitution for all taxes improperly 
 paid. In determining upon the va- 
 lidity of this latter act the court 
 used the following language: "The 
 only objection to the validating act, 
 which seems to deserve considera- 
 tion, is found in the circumstance, 
 that the tax-payers have not been 
 given an opportunity to be heard 
 imtil after they were compelled to 
 pay their taxes. The general rule 
 has often been declared that the leg- 
 islature may validate, retrospec- 
 tively, any proceedings which they 
 might have authorized in advance. 
 And it is immaterial that such legis- 
 lation may operate to divest an in- 
 dividual of a right of action existing 
 in his favor, or subject him to a lia- 
 bility which did not exist originally. 
 In a large class of cases this is the 
 paramount object of such legislation. 
 If, therefore, it was within the com- 
 petency of the legislature to provide 
 for the collection of a tax by a sys- 
 tem which requires the tax-payers 
 to pay in advance of an opportunity 
 to be heard, but which permits them 
 to have a subsequent hearing, and 
 to obtain restitution, if restitution 
 ought to be made, the validating act 
 was constitutional. Under the power 
 of taxation the property of the citi- 
 
 zen is appropriated for the public 
 use to the extent to which he should 
 contribute to the public revenues, 
 and hfi is liable to have a demand 
 established against him on the judg- 
 ment of others regarding the sum 
 whicli he should justly and equitably 
 contribute. . . . The reason why a 
 right to be heard by the tax-payer- 
 respecting the imposition of a tax is 
 valuable and essential for his protec- 
 tion, is in order that he sliall not be 
 obliged to bear a disproportionate 
 part of the public burden. If tlie 
 taxing laws secure him in this right 
 as effectually as is deemed sufficient 
 in laws authorizing his property to 
 be taken under the power of emi- 
 nent domain, it would seem upon 
 analogy and upon principle, that he 
 is protected sufficiently, and that the 
 taxing laws would not contravene 
 the constitutional prohibition. . . . 
 It is asserted In many cases that 
 notice and an "opportunity for hear- 
 ing of some description are matters 
 of constitutional right; but it has, 
 nowhere been declared that it is in- 
 dispensable that the hearing should 
 be one in advance of the collection 
 of the tax. The operation of the 
 present act is to preserve, substan- 
 tially, to the tax-payers, the right of 
 which they were originally deprived, 
 to give them an opportunity to ques- 
 tion the justice of the assessment, 
 and to restore to them the sums 
 which were illegally collected of 
 them. In view of the large and 
 almost unlimited discretion which 
 resides in the legislature to regulate 
 the mode and conditions of taxation, 
 it is believed to be valid and effectual 
 to legalize the proceedings here." 
 The Exchange Bank Tax Cases, 21 
 Fed. Eep.99. (N. Y.) 
 
404 THE LAW OF ASSESSMENTS. 
 
 delinquent taxes, dul}' levied and assessed, by seizure and 
 sale of the property of the delinquent, without the aid or 
 intervention of judicial proceedings, must be conceded. 
 Therefore, when applied to the collection of taxes, "due 
 process of law " and " the law of the land " mean " any 
 legal process which was originally founded in necessity, and 
 which has been approved and acquiesced in by universal con- 
 sent." ^ The tax-collector, being clothed with the power of 
 seizing and selling the personal as well as the real estate of 
 the delinquent, it becomes important to know how far the 
 personal property of others, lawfully in possession of the 
 delinquent, becomes liable to seizure for delinquent taxes. 
 Must the tax-collector be restricted to the personal property 
 belonging in fact to the delinquent, or may he lawfully seize 
 any property in his possession and make it liable for the 
 unpaid tax, not due from the actual owner of the property, 
 but owing by the party having the property in his posses- 
 sion? It would seem an easy matter to answer this ques- 
 tion by stating that one man's property cannot, under any 
 circumstances, be taken to pay another's debts, nor to dis- 
 charge his liabilities or obligations; and this is undoubtedly 
 the law.^ But the other view was taken in a case where the 
 law was reviewed at great lengtli, and the property of an- 
 other, placed in the hands of a delinquent tax-payer for a 
 special purpose, was seized by a tax-collector, and the seizure 
 maintained.^ Due process of law, as applied to taxation, 
 
 1 State V. Allen, 2 McCord 56. " When any property shall be legally 
 
 ^ Wright V. Cradlebaugh, 3 Nev. distrained and sold for the tax of any 
 
 349. person, and such property shall be 
 
 3 This seizure was made under au- owned by another person, such 
 
 thority of a statute which provided owner may recover of the person 
 
 that, " In case any person shall re- for whose tax the same was sold 
 
 fuse or neglect to pay the tax im- the value of such property, in an 
 
 posed on him, the treasurer shall action of assumpsit, as for goods 
 
 levy the same by distress and sale of sold and delivered, deducting there- 
 
 the goods and chattels of said per- from the amount of any surplus 
 
 son, or of any goods and chattels in which may have been claimed or re- 
 
 liis possession, wherever the same covered by such owner, as provided 
 
 may be found within his township; in this chapter." J. & B. Bird were 
 
 and no claim of property to be made delinquent for taxes, and plaintiff 
 
 thereto by any other person shall be was the owner of some lumber 
 
 available to prevent the sale." By which 'had been manufactured at 
 
 the same statute it is provided that, their mill. The defendant, as treas- 
 
DUE PEOCESS OF LAW — APPLIED TO TAXATIOK. 405 
 
 has been referred to by the highest court in the land on sev- 
 eral occasions without attempting any very concise defini- 
 tion of the term. In the case of Davidson v. New Orleans 
 (96 U. S., p. 104), due process of law was referred to by 
 Justice Miller in the following language : " That whenever 
 by the laws of a state, or by state authorit)', a tax, assess- 
 ment, servitude, or other burden is imposed upon property 
 for the public use, whether it be for the whole state or of 
 some more limited portion of the community, and those laws 
 provide for a mode of confirming or contesting the charge 
 thus imposed, in the ordinary courts of justice, with such 
 notice to the person, or such proceeding in regard to the 
 property as is appropriate to the nature of the case, the 
 judgment in such proceedings cannot be said to deprive the 
 owner of his property without due process of law." Justice 
 Beadley, concurring, in the same case, stated what would 
 
 urer of the township, seized the lum- 
 ber in possession of J. & B. Bird for 
 their delinquent taxes, and the plain- 
 tiff brought a suit in trespass for tlie 
 value of the lumber so seized by de- 
 fendant. It will be seen that this 
 was an attempt to take and hold the 
 property of one man found in pos- 
 session of another for the latter's 
 delinquent taxes. The defendant 
 justified under this statute, and the 
 Supreme Court of Michigan, by a 
 divided bench, sustained the seizure. 
 The main question presented in the 
 case was, whether the property of 
 the plaintiff, taken to pay the delin- 
 quent taxes of J. & B. Bird, was 
 taken as against plaintiff by ''due 
 process of law." Justice Manning 
 in his opinion said: "The law is 
 for the collection of a revenue of 
 the state, and not of a debt between 
 individuals. State exigencies are 
 not to be measured by those of indi- 
 viduals, and experience has shown 
 the necessity of more summary and 
 stringent laws for the collection of 
 the revenues of the government 
 than have been found expedient to 
 enforce the payment of debts be- 
 
 tween individuals. The act in effect 
 declares that personal property in 
 possession of a person taxed sliall 
 be deemed his for tlie purpose of 
 making the tax, when he refuses to 
 pay it voluntarily. The property 
 was in the possession of J. & B. 
 Bird, and lawfully so for aught that 
 appears, when it was taken. The 
 plaintiff was aware of tlie law, or is 
 sut)posed to have been — ^for ignorance 
 of it is no excuse — which made the 
 property liable while in their pos- 
 session for the tax; and he also 
 knew the same law made them re- 
 sponsible to him for its value in case 
 it was taken. With the facts and 
 law before him, he, in contemplation 
 of law, took upon himself the risk; 
 and if J. & B. Bird have proved 
 unfaithful to him, and permitted his 
 property to be taken and sold to pay 
 their tax, it is not the fault of the 
 state, or of the law; and the plaintiff 
 is not remediless, as he has bis ac- 
 tion against them." Justice Cheis- 
 TIANCY concurred, in an opinion of 
 great research and force, citing, as 
 illustrative of the power of the leg- 
 islature by a statute to make the 
 
406 
 
 THE LAW or ASSESSMENTS. 
 
 and what would not be due process of law, in the following 
 language : " In judging what is ' due process of law,' respect 
 must be had to the cause and object of the taking, whether 
 under the taxing power, the power of eminent domain, or 
 the power of assessment for local improvements, or none of 
 these; and if found to be suitable or admissible in the 
 special case, it will be adjudged to be ' due process of law ' ; 
 but if found to be arbitrary, oppressive or unjust, it may be 
 declared to be not 'due process of law.' (Id. p. 107 ^''). 
 Justice Field in a later case (Hager v. Reclamation Dis- 
 trict No. 108, 111 U. S. 708, s. c. 4 Sup. Ct. R., 667), used 
 the following language : "But where the taking of prop- 
 erty is in the enforcement of a tax, the proceeding is neces- 
 sarily less formal; and whether notice to him is at all 
 necessarj', may depend upon the character of the tax and 
 the manner in which its amount is determinable. The 
 
 personal property of a stranger, 
 found in possession of a delinquent 
 tax-payer, responsible to the state 
 for tbe delinquent's unpaid taxes, 
 tlie well established common law 
 rule mailing personal property found 
 on the landlord's premises responsi- 
 ble to be taken and distrained for 
 the tenant's delinquent rent. Tlie 
 learned judge quotes from Black- 
 stone the following: "But gener- 
 ally speaking, whatever goods and 
 chattels the landlord finds upon the 
 premises, whether they in fact be- 
 long to the tenant or a stranger, are 
 distrainable by him for rent; for, 
 otherwise, a door would be open to 
 indefinite frauds upon the landlord, 
 and the stranger has his remedy over 
 by action on the ease if, by the ten- 
 ant's default, the chattels are dis- 
 trained so that he cannot render 
 them when called upon." (IS Black. 
 Ooni. 8.) The learned judge pro- 
 ceeds further to state, that the rem- 
 edy of distress for rent was in force 
 in ten or eleven states of the Union, 
 in some governed by the common 
 law as modified by English statutes, 
 in others regulated by statute, and 
 
 that in nearly all of them this fea- 
 ture — the taking of the jjroperty of 
 another, found in possession of the 
 tenant, for the rent of the tenant, 
 with tbe right of the true owner 
 whose property is taken, to recover 
 its value from the tenant — is pre- 
 served. In the dissenting opinion of 
 Justice Campbell will be found all 
 the reasoning that ought to be re- 
 quired to convince the most skepti- 
 cal that this statute, so far as it 
 authorizes the taking of the prop- 
 erty of any other person than the 
 delinquent tax-payer, to pay the tax 
 of the person in whose possession 
 such property may be found, is the 
 taking of private property without 
 due process of law, and is repugnant 
 to the Bill of Rights, guaranteeing 
 to each security of person and prop- 
 erty, found in the Constitution of 
 every state in the Union, in the Con- 
 stitution of the United States, and 
 in the Magna Charta, — ^antedating 
 them all. Sears ». Cottrell, 5 Mich. 
 266. See Spencer v. McGowen, 13 
 Wend. 257. 
 ''Seepost, 343, n. 
 
DUE PROCESS OF LAW — APPLIED TO TAXATION. 407 
 
 necessity of revenue for tlie support of the government 
 does not admit of the delay attendant upon proceedings of 
 courts of justice, and they are not required for the enforce- 
 ment of taxes or assessments." " Due process of law " 
 does not necessarily mean judicial proceedings, but being in 
 legal effect the same as when the expression "by the law of 
 the laud " is used, means or includes general laws — laws that 
 affect all alike. Statutes which provide for the levying of 
 a tax upon all the property of the state, county or district, 
 by a uniform rate for the assessment of the property within 
 the state according to value ; for the seizure and sale of 
 property of the owner for a delinquent tax levied and as- 
 sessed under a law equally uniform in its operation against 
 the property of all persons, constitute due process of law. 
 " In judicial proceedings," says Mr. Cooley, " the law of the 
 land requires a hearing before condemnation, and judgment 
 before dispossession ; but when property is appropriated by 
 the government to public uses, or the legislature attempts 
 to control it through remedial statutes, different considera- 
 tions prevail from those which relate to controversies 
 between man and man; different proceedings are required, 
 and we have only to see whether the interference can be 
 justified by the established rules applicable to the case. 
 Due process of law in each particular case means such an 
 exertion of the powers of government as the settled maxims 
 of law sanction, and under such safeguards for the protec- 
 tion of individual rights as those maxims prescribe for the 
 class of cases to which the case in question belongs. Pri- 
 vate rights in property may be interfered with by either the 
 legislative, the executive or the judicial department of the 
 government."* The same learned author, further discuss- 
 ing these principles of law, says: "In every government 
 there is inherent authority to appropriate the property of 
 the citizen for the necessities of the state, and constitutional 
 provisions do not confer the power, though thej' often sur- 
 round it with safeguards to prevent abuse. The i-estraints 
 are, that when specific property is taken, a pecuniary com- 
 pensation agreed upon or determined by judicial inquiry 
 must be paid ; and in other cases it can only be taken for 
 * Cooley Const. Lim. 356 (1st ed.J. 
 
408 TBE LATV OF ASSESSMENTS. 
 
 the support of the government, and each citizen can only be 
 required to contribute his just proportion to that end. But 
 there is no rule or principle known to our system under 
 which private property can be taken from on§ man and 
 transferred to another for the private use and benefit of 
 such other person, whether by general laws or by special 
 enactment. The purpose must be public, and must- have 
 reference to the needs of the government."^ Chief Justice 
 Beatty held the following language : " We apprehend it is 
 beyond the power of the legislature to restrain a defendant 
 in any suit from setting up a good defense to an action 
 against him. The legislature could not directly take the 
 property of A. to pay the taxes of B.® Neither can it indi- 
 rectly do so by depriving A. of setting up in his answer 
 that his separate property has been jointly assessed with 
 that of B., and asserting his right to pay his own taxes 
 without being encumbered with those of B. Sec. 8 of Art. I. 
 of the Constitution declares that 'No person shall,' &c., 
 . . . nor be deprived of life, liberty or property without due 
 process of law. ' Due process of law ' not only requires 
 that a party shall be properly brought into court, but that 
 he shall have the opportunity, when in court, to establish 
 any fact which, according to the usages of the common law 
 or the provisions of the Constitution, would be a protec- 
 tion to himself or property. The legislature may regulate 
 the mode of pleading and conducting a trial, but under pre- 
 tense of doing so, it cannot deprive parties of substantial 
 rights." ^ 
 
 Sec. 252. when Notice of the Proceedings necessary. — 
 Where an act of the legislature provides for a local public 
 improvement, to be made at the expense of the property 
 within a prescribed district, supposed to be benefited there- 
 by, and makes no provision for notifying the owners of 
 
 * Cooley Const. Lim. 357. tax deed "conclusive evidence" of 
 
 'But in Sears v. Cottrell, (5 Mich, the regularity of everything required 
 
 266) it was decided that this could to be done by law to make a valid 
 
 be done. tax sale, was held to be unconstitu- 
 
 ' Wright u. Cradlebaugh, 3 Nev. tional, and such deeds were restricteil 
 
 349. See also Taylor v. Porter, 4 to prima facie evidence only. Cairo 
 
 Hill 144. Upon the same princi- & F. K. Co. v. Parks, 32 Ark. 131; 
 
 pies a statute in Arkansas, making a Ilickman u. Kempuer, 35 Id. 505. 
 
DUE PEOCESS OP LAW — ^APPLIED TO TAXATION. 409 
 
 the property to be assessed, and provides no opportunity to 
 appear and present objections thereto, and for hearing 
 thereof, it is not due process of law to assess and sell prop- 
 erty under authority of such statute, without judicial pro- 
 ceedings. There must be notice and opportunity to be 
 heard in objections to the proposed undertaking, to the esti- 
 mate of value or amount of tax to be charged to each lot or 
 tract of land sought to be encumbered, and to other pro- 
 cedings by which it is proposed to charge and sell private 
 property for public purposes, in order to constitute due 
 process of law. The same rule or requirement would apply 
 to an attempt to divest an owner of private property for a 
 public use, by an assessment of damages as a compensation 
 for the property to be taken. Whenever the purpose is to 
 deprive a party of his property or to create a charge against 
 it, or to secure a right to do so, the owner must have notice 
 of the proceedings and opportunity to be heard in oppo- 
 sition thereto, and to test the correctness of the charge to 
 be made against his property. Notice, or the means of 
 knowledge, is an essential element of every just proceeding 
 which affects the rights of persons or property.^ ^^ To 
 sustain a special tax or assessment, levied upon the theory 
 
 1 In a well considered case in the wrongs and errors which may have 
 
 Supreme Court of Colorado, the been committed must be given." In 
 
 court used the following language: the case from which this extract is 
 
 " The doctrine of the authorities is, taken, an ordinance providing for 
 
 that whenever it is sought to deprive the construction and repair of side- 
 
 a person of his property, or to create walks provided for, and the only no- 
 
 a charge against it, preliminary to, tice given, was notice to construct a 
 
 or which may be made the basis of sidewalk, of a certain kind and di- 
 
 taking it, the owner must have no- mensions, in front of the owner's 
 
 tice of the proceeding, and be af- property described in the notice, or 
 
 forded an opportunity to be heard, that the city would cause it to be 
 
 as to the correctness of the assess- constructed at the owner's expense; 
 
 meat or charge. It matters not and that if the cost be not paid 
 
 what the character of the proceed- within a certain other time, the cost, 
 
 ing may be, by virtue of whicli his with a, certain penalty added, would 
 
 property is to be taken, whether ad- be placed on the tax-roll as a special 
 
 ministrative, judicial, summary or assessment against his property, and 
 
 otherwise; at some stage of it, and collected in the same manner as gen- 
 
 before the property is taken or the eral city taxes are collected. It was 
 
 charge becomes absolute, against held that this notice was not the 
 
 either the owner or his property, an equivalent of due process of law as 
 
 opportunity for the correction of provided for in constitutions and de- 
 
410 THE LAW OF ASSESSMENTS. 
 
 of benefits, where no provision is made for notice to the 
 
 fined by the autlaorities; that it fur- 
 nished no information of the amount 
 of the assessment that would be 
 made, and that it designated no 
 time, place or tribunal "at or be- 
 fore which a hearing might be had." 
 Brown v. City of Denver, 2 W. C. 
 Kep. 622. (Col.) (s. c. 3 Tac. Kep. 
 4.^9.) A case which strongly exem- 
 plifies the requirement of notice in all 
 proceedings instituted for the pur- 
 pose of collecting a special tax, is 
 foimd in the Supreme Court of 
 Michigan. A village ordinance 
 made it the duty of the assessor to 
 assess a special tax to saloon keep- 
 ers; and he was required, immedi- 
 ately upon the completion of the 
 assessment roll, to give ten days no- 
 tice, by publishing or posting, that 
 on a, certain day and at a certain 
 place in the village he would review 
 the assessment roll, and that any 
 person or persons deeming them- 
 selves aggrieved by such assessment 
 might be heard. The only notice 
 given by tlie assessor was for a re- 
 view of the general village tax roll 
 for the year; but no notice of review 
 of the assessment roll for the saloon 
 tax was given. It was held that the 
 defect in the notice was fatal to the 
 saloon tax. Dool v. Cassopolis, 4^". 
 W. Rep. 265. (Mich.) "—parties 
 whose property is to be taken under 
 summary tax proceedings are enti- 
 tled as of right to be heard at some 
 stage of the proceedings before the 
 tax shall become an established 
 charge against them or their prop- 
 erty." Thomas v. Gain,35 Mich. 155; 
 (24 Amer. E. 540.) 
 
 "The legislature of the state of 
 New York passed an act " to lay 
 out, open and grade Atlantic avenue, 
 in the town of New Lots, Kings 
 County." It provided that the Su- 
 preme Court should appoint three 
 freeholders of the town, commission- 
 
 ers for the purposes of the act, who 
 were to lay out the avenue, and if 
 the owners did not convey the land, 
 to estimate the value of the land 
 taken and award damages to the 
 owners ; and that they were to assess 
 the amount of the award upon the 
 lands benefited by the opening of 
 the avenue in proportion to benefits. 
 The act made ample provision for 
 notice to and hearing of all the per- 
 sons interested in the award before 
 making final confirmation by the 
 Supreme Court, but there was no 
 provision for notice to or hearing of 
 the persons whose lands were as- 
 sessed to pay the awards. An as- 
 sessment to the amount of $1,100 
 being made against the lands of a 
 property owner, to pay these awards, 
 suit was brought to vacate the as- 
 sessment as a cloud of title, upon 
 the ground that the assessment was 
 made without any notice or hearing, 
 or opportunity of a hearing. Justice 
 Eakl, in rendering the opinion of 
 the majority of the judges, used 
 this language: "I am of opinion 
 that the Constitution sanctions no 
 law imposing such an assessment, 
 without a notice to, and a hearing 
 or an opportunity of a hearing, by 
 the owners of the property to be as- 
 sessed. It is not enough that the 
 owners may by chance have notice, 
 or that they may as a matter of 
 favor have a, hearing. The law 
 must require notice to them, and ' 
 give them the right to a hearing 
 and an opportunity to be heard. It 
 matters not, upon the constitution- 
 ality of such a law, that the assess- 
 ment has, in fact, been fairly 
 apportioned. The constitutional 
 validity of a law is to be tested, not 
 by what has been done under it, but 
 by what may, by its authority, be 
 done. The legislature may pre- 
 scribe the kind of notice and the 
 
riUE PROCESS OP LA"W — APPLIED TO TAXATION. 411 
 owners of the property to be taxed or assessed, it is neces- 
 
 mode in which it. shall be given, but 
 it cannot dispense with all notice. 
 . . . The legislature can no more 
 arbitrarily impose an assessment for 
 which property may be taken and 
 sold than it can render a judgment 
 against a person without a hearing. 
 It is a rule founded on the first prin- 
 ciples of natural justice, older than 
 written constitutions, that a citizen 
 shall not be deprived of his life, 
 liberty or property without an oppor- 
 tunity to be heard in defense of his 
 rights, and the constitutional pro- 
 vision that no person shall be de- 
 prived of these ' without due process 
 of law' has its foundation in this 
 rule. . . . 'Due process of law' is 
 not confined to judicial proceedings, 
 but extends to every case which may 
 deprive a citizen of life, liberty or 
 property, whether the proceeding be 
 judicial, administrative or executive 
 in its nature." Stuart v. Palmer, 74 
 N. Y. 188. Due process of law in 
 every system of assessment and tax- 
 ation requires that the person as- 
 sessed, at some stage of the proceed- 
 ings must have an opportunity to be 
 heard. Overing b. Foote, 65 N. Y. 
 263; Cooley on Tax. 266. 
 
 ' In Iowa, a statute providing for 
 the construction of sewers by mu- 
 nicipal corporations at the cost of 
 the property benefited, made no pro- 
 visions for requiring notice to be 
 given to the persons to be assessed. 
 In passing upon the constitutionality 
 of the act, the court quote from the 
 opinion of Stuart v. Palmer (74 N. 
 Y. 183), with approval. Also the 
 case of County of San Mateo v. 
 Southern Pac. R. Co. (18 Fed. Kep. 
 385), wherein the 13th article of the 
 constitution of California, providing 
 for the deduction in favor of mort- 
 gagors of the amount of mortgages 
 from the value of the land mort- 
 gaged, and taxing the amount of 
 
 the mortgage debt to the mortgagee, 
 except as to quasi public corpora- 
 tions, which were denied this priv- 
 ilege when mortgagors, is held to be 
 in conflict with the Fourteenth 
 Amendment to the Constitution of 
 the United States. Besides, a large 
 number of other authorities are 
 cited to sustain the decision, which 
 is that, "the arbitrary appropria- 
 tion of private property without no- 
 tice, and without an opportunity for 
 a hearing, cannot be defended upon 
 any principle of natural justice, and 
 ought not to be tolerated or upheld 
 by the courts." The coiu-t in the 
 same connection said: "It is true 
 that there are some species of taxes 
 to which the rule is not applicable. 
 They embrace a poll tax, a license 
 tax, a tax upon occupations and the 
 like, where the tax is specific and 
 operates upon all alike. Taxes of 
 these and like kinds are plainly ex- 
 ceptions to the rule, because a hear- 
 ing would be of no possible avail. 
 In such cases the law fixes the 
 amount, and there is nothing left 
 to inquire into and determine." The 
 ordinance providing for the construc- 
 tion of the sewer, which gave rise to 
 the suit, provided that the ofBcer su- 
 perintending the work should keep 
 an account of the expense incurred, 
 and divide the same among the own- 
 ers of the property to be assessed 
 pro rata, and report the same to a 
 committee, and that this committee 
 should audit and correct the report 
 and report the same to the council. 
 While the court declined to say that 
 the act was unconstitutional, inti- 
 mating that under it an ordinance 
 might be framed providing for notice 
 of the assessment to be given to the 
 persons to be affected by it to appear 
 and show cause why the assessment 
 should not be binding and conclusive 
 upon them, but that the proceedings 
 
412 
 
 THE LAW OF ASSESSMENTS. 
 
 sary that it appear affirmatively that notice could have 
 availed nothing.* 
 
 had did not constitute due process of 
 law. In reference to the character 
 of the notice the court said: "All 
 that he" (the person to be assessed) 
 " can require is that he shall have an 
 opportunity at some time to he heard 
 in the matter before the assessment 
 attaches and becomes a lien upon his 
 property." Gatch v. City of Des 
 Moines, 18 N. W. Kep. 310 (Iowa). 
 
 Notice a constitutional right. In 
 the same court the question of the 
 necessity of notice to the persons to 
 be assessed to pay part of the cost of 
 a sewer was discussed, and it was 
 held that notice to such persons be- 
 fore an assessment or tax could be 
 made final and conclusive against 
 them, was a constitutional right. 
 An ordinance had been passed pro- 
 viding for the construction of a 
 sewer, and no provision was made 
 for giving notice to the persons who 
 were to be assessed. The ordinance 
 made it discretionary with the city 
 council to determine that a portion 
 of the expense of its construction 
 be paid out of the general fund, the 
 proportion, if any, to be determined 
 by the council. Noticing the pro- 
 vision empowering the council to 
 determine whether any, and if any, 
 what proportion, of the cost of the 
 sewer should be paid from the gene- 
 ral fund, and whether all, or what 
 proportion, by the property bene- 
 fited, the court used the following 
 language: "We think that this pro- 
 vision (assuming that the provision 
 did not have the effect to nullify the 
 ordinance, about which there may be 
 some doubt), the council was charged 
 with the duty of detei-mining whether 
 any part of the cost of constructing 
 the sewer should be paid out of the 
 general revenue, and if so, what 
 part. Upon what basis such deter- 
 mination should be made the ordi- 
 
 nance does not show, but no one 
 would contend that it should be done 
 arbitrarily. It follows, then, that it 
 should be done in the exercise of 
 judgment and discretion. The only 
 justification for any special assess- 
 ment is the special benefit supposed 
 to be received from the improve- 
 ment. But the special benefit differs 
 in different cases, and so also does 
 the benefit enjoyed by the public. 
 There may be otlier considerations 
 which should influence a city coun- 
 cil in determining what part of the 
 cost of a sewer, if any, should be 
 paid out of the general revenue, but 
 the one suggested could not, we 
 thinic, properly be overlooked, nor is 
 it easy to conceive of any considera- 
 tion, whatever others there might be 
 which would not address itself to the 
 judgment and discretion of the coun- 
 cil. . . . and ... we thini; . . . 
 that a right to a notice and an op- 
 portunity to be heard is a constitu- 
 tional right where such apportion- 
 ment is to be made." Griswold 
 College V. City of Davenport, 22 
 N. W. Eep. 904 (Iowa). 
 
 * In a later case in the same court 
 the question of the necessity of no- 
 tice in all cases of special taxes and 
 assessments was considered, and the 
 doctrine announced in the cases of 
 Gatch V. Des Moines and Griswold 
 College V. Davenport adhered to. 
 An ordinance had been passed for 
 " the guttering, curbing and macad- ■ 
 amizing to be done at the expense of 
 the abutting property." The ordi- 
 nance made no provision for notice 
 to the owners of the property to be 
 assessed, of the time and place of 
 the levy, and they had no oppor- 
 tunity to appear before the council 
 and be heard in relation thereto. 
 
 When notice may be dispensed loith. 
 In passing upon the validity of this 
 
DUE PROCESS OP LAW — APPLIED TO TAXATION. 413 
 
 Sec 253. When Notice cf the Assessment Proceedings not 
 Necessary. — Where the statute authorizes the formation of 
 districts and the assessment of the land within the district 
 for reclamation thereof, and also provides for enforcement 
 of the assessment by action or suit, prosecuted to final judg- 
 ment in a court of competent jurisdiction, and there is no 
 limitation of the defenses that may be interposed to the 
 iissessment, and the district has been legally organized, no 
 notice of the assessment or other proceedings prior to action 
 or suit brought, is necessary. When sued to enforce the 
 assessment as a lien against the land, the defendant may in- 
 terpose, as a defense, anything which would have been an 
 objection to the assessment at any stage of the proceedings. 
 This provision for a day in court before the property can be 
 sold, would constitute due process of law. ^^ 
 
 ordinance the court, considering the 
 only exception to the rule requiring 
 notice, said: "In tlie case at bar it 
 was incumbent on tbe defendant 
 to sliow by its return to the writ, 
 and upon the trial, that the tax in 
 question was such that a notice to 
 the owner, and an opportunity to be 
 heard before the levy became con- 
 clusive upon him, would have availed 
 him nothing. No such showing was 
 made. All that is shown is that there 
 was an ordinance which authorized 
 the cost of the improvement to be 
 levied upon the abutting property. 
 It does not appear whether the levy 
 was required to be made according 
 to the area of the lots or to the lineal 
 feet front, or to the value of the 
 lots, or whether the council had any 
 discretion in regard to how the levy 
 should be made. In view of the 
 legislation of this state from the 
 beginniflg, as shown in Gatch's 
 case, if there is or can be any 
 ground upon which a tax can be 
 upheld which has been levied with- 
 out notice to the tax-payer, and 
 without an opportunity to be heard, 
 it is incumbent upon the party claim- 
 ing Its validity to show that a notice 
 
 would have been unavailing. In 
 this case it is impossible to ascer- 
 tain from the levy itself how or in 
 what manner the amount of the 
 tax was ascertained." Auer v. City 
 of Dubuque, 22 N. W. Kep. 914 
 (Iowa). 
 
 ' Where the assessment is made 
 "in proportion to benefits," and no 
 opportunity is afforded prior to ac- 
 tion or suits for objections as to the 
 amounts assessed as benefits, the 
 defense can be interposed, that the 
 assessment is in excess of benefits. 
 Where, in a suit to enforce a lien as 
 an assessment made by a swamp 
 land district, it was objected that 
 the defendant had no notice of the 
 assessment, and no opportunity to 
 object to the sum assessed as bene- 
 fits, and the law did not limit the 
 defenses which might be made, the 
 court used the following language: 
 " It cannot be material, however, 
 that the land owner had no notice 
 before the proportional benefit to 
 his land was estimated by the com- 
 missioners, if in the subsequent ac- 
 tion he has had his day in court, 
 ■with full opportunity to contest the 
 charge, before it was declared a lien 
 
414 
 
 THE LAW OF ASSESSMENTS. 
 
 upon his land, or a judgment, to be 
 collected out of his general proper- 
 ty." Keclamation District No. 108 
 V. Evans, 61 Cal. 107. The latest 
 decisions in California are to tlie 
 effect that the question of actual 
 benefits occasioned or to be occa- 
 sioned by assessments in swamp 
 land districts, cannot be raised as a 
 defense to any portion of the assess- 
 ment. It is held that, when the 
 district was organized, it was deter- 
 mined that the lands would be bene- 
 fited all that it would cost to reclaim 
 
 them, and each land owner had 
 notice of the hearing of the petition. 
 See chapter on Swamp Land Dis- 
 tricts, in California. 
 
 2 "Where this opportunity to be 
 heard respecting the assessment is 
 afforded to the tax-payer in an ac- 
 tion, there has been given him all 
 that the guaranty of due process of 
 law requires and secures, and he has 
 nothing to complain of in regard to 
 such process." Keclamation Dis- 
 trict No. 3 V. Goloman, West Coast 
 E. 99 (Cal.) ; (s. c, 4 Pac. Eep. 678). 
 
STREET ASSESSMENTS. 415 
 
 CHAPTER XXIII. 
 
 STREET ASSESSMENTS. 
 
 Sec. 275. The Character of Street Assessments. — An im- 
 portant branch of the law of assessments relates to those 
 special taxes imposed upon property supposed to be bene- 
 fited, for the improvement of a street, part of a street, or 
 locality. When the improvement consists of a bridge, or 
 artificial surface constructed by piling and planking, or 
 other means, and raised and supported above the natural 
 surface, for a public street or highway, the same rules as to 
 liability for cost, apply. The structure in such case would 
 stand as a substitute for a solid fill of the space beneath. 
 These taxes are usually called " street assessments." They 
 can only be levied under authority of positive constitu- 
 tional or statutory law, generally found in the act of 
 incorporation of towns and cities, or some special or general 
 statute conferring the power. The measure of the power 
 when authorized, and the mode of its exercise, must be 
 sought for in the statute creating the municipal corporation, 
 or conferring upon it the powers to be. exercised. This is a 
 correct statement of the doctrine as to the extent of such 
 taxation : assessments cannot exceed the amount or value 
 of benefits. All in excess of benefits would be the taking 
 of private property for public use without due process of 
 law. The word "assessment," when used to express any 
 kind of taxation, has a meaning distinct from the word 
 "taxation." When the word "taxation" is used in a con- ' 
 Btitution in connection with the taxing power, in the absence 
 of the word " assessment," it is restricted in its meaning to 
 the raising of money for general state, county and city pur- 
 poses, and does not include those charges imposed upon 
 property supposed to be benefited, to pay the expenses of 
 local and special improvements. And in the absence of 
 constitutional inhibition, it is within legislative authority 
 
-IIG 
 
 THE LAW OF ASSESSMENTS. 
 
 to provide for the payment of such improvements bj' assess- 
 ments upon the property benefited thereby, and this discre- 
 tion, when exercised, is not subject to review by the courts.^ 
 But where the constitution provides that the mode or sys- 
 tem of municipal taxation sball be according to value, it is 
 not within the province of the legislature to authorize a 
 system of taxation by assessment upon adjoining or abut- 
 ting property, to meet the cost of local improvements of a 
 public character.'^ It is not an inherent power of taxation, 
 but a delegated power, and is, when delegated, " subject to 
 the restrictions imposed by the terms in which it is dele- 
 gated, or by the principles applicable to the subject which 
 it is the object of." A statute of New York limited this 
 power to half the value of the land to be assessed for any 
 single improvement. A constitution providing for the 
 incorporation of cities and villages by general laws, and 
 restricting their power of taxation, assessment, &c., was 
 lield to restrict the power of assessment to the value of the 
 benefits.* 
 
 i King V. Portland, 2 Or. 160. 
 
 ^The constitution of Tennessee 
 authorized the General Assembly to 
 empower counties and incorporated 
 cities and towns to impose taxes, but 
 provided that " all property should 
 be taxed according to value." In a 
 well considered case the Supreme 
 Court of that state held that this 
 provision prohibited the system of 
 taxation by assessment, according 
 to benefits upon abutting or adjoin- 
 ing property for street improve- 
 ments or local improvements of a 
 public character. The distinction 
 ^ between taxes and assessments was 
 recognized, but held inapplicable 
 under the constitutional provision 
 restricting municipal taxation to a 
 rule of uniformity according to value. 
 McBean v. Chandler (9 Heisk. 349), 
 24 Amer. E. 308. 
 
 ^ The constitution of Ohio has this 
 provision: "The General Assembly 
 shall provide fov the organization 
 of cities and incorporated villages by 
 
 general laws, and restrict their gen- 
 eral power of taxation, assessment, 
 borrowing money, contracting debts 
 and loaning their credit, so as to 
 prevent the abuse of such power." 
 This was held by the Supreme Court 
 of Ohio to be a restriction upon the 
 power of the legislature to authorize 
 any greater amount as assessments 
 upon abutting lots, than the value 
 of the benefits. A majority of the 
 court were of opinion that the de- 
 termination of the extent of this 
 value was a subject to be passed 
 upon by the legislative power of the 
 municipality, and that their deter- 
 mination, "in the absence of fraud," 
 was final and not subject to review 
 by the courts; but that unless it 
 appeared that the question had been 
 so determined, it was open to review 
 and that "parol evidence might be 
 introduced to show that the authori- 
 ties did not act on the proper basis." 
 On this point, however, the minority 
 dissented, and remarked that "No 
 
STREET ASSESSMENTS. 
 
 417 
 
 Sec. 276. Obtaining Jurisdiction — Mode of Proceeding. — 
 
 Until the corporation acquires jurisdiction over tlie street 
 to be improved, no levy of a tax or assessment on the ad- 
 joining property is valid or binding. The first subject of 
 inquiry, therefore, is the mode of acquiring jurisdiction over 
 the improvement to be made, so as to make a valid assess- 
 ment or tax. In some cases proceedings are commenced by 
 a preliminary survey and estimate of the cost of the work, 
 followed by a resolution, order or ordinance of the legisla- 
 tive authority of the town or city ; in others, by a petition 
 describing the work to be done, signed by the owners of a 
 majority of frontage of the street, part of a street, or other 
 public way sought to be improved ; and in still other cases, 
 by notice given by the legislative authority of the town or 
 city of the intention to have the particular improvement 
 made at the cost of the property benefited. Whatever the 
 mode prescribed in the organic law of the municipality, it 
 must be strictly, or at least substantially complied with, iu 
 order to obtain jurisdiction over the work. A failure to do 
 so results in a failure to acquire jurisdiction, and any pro- 
 
 sucli exception is permitted in any 
 state where the action of the coun- 
 cil is regarded as final in its char- 
 acter," but added, " in this state, 
 courts may interfere in matters of 
 that sort where great injustice is 
 done, even though fraud be not 
 shown." Chamberlain v. Cleveland, 
 34 Ohio St. 562. 
 
 Must be based on actual benefits. 
 Assessments, on account of local 
 public improvements, made at the 
 cost of the property of a locality or 
 district, on the theory of benefits, 
 must be based upon actual benefits, 
 and not on any arbitrary rule, re- 
 gardless of the question of benefits. 
 In a case involving this point, in 
 making a special assessment of bene- 
 fits for the grading and improve- 
 ment of certain streets, the court 
 found, " that in making such assess- 
 ments of benefits the said board of 
 public works determined the amount 
 of banefits by adding fifty per cent. 
 27 
 
 to the cost of the work to be done 
 in front of each lot, and part of lot, 
 as estimated by said city engineer, 
 and adopted such cost as the meas- 
 ure of benefits, irrespective of the 
 actual benefit to the lot." In the 
 same case it also was found that the 
 improvements did not affect all lots 
 alike, but benefited some more than 
 others. It was held that the assess- 
 ment was made in palpable violation 
 of law, and of cominon reason and 
 justice. "Here was no mere error 
 of judgment, but the failure to ex- 
 ercise any judgment at all. The 
 actual benefit to each lot, which is 
 the only basis of such estimate and 
 assessment, is boldly repudiated, and 
 an arbitrary basis adopted which 
 precluded any consideration of such 
 benefit, or the exercise of any judg- 
 ment in respect to such benefit." 
 Watkins b. Zweitusch, 3 N. W. Rep. 
 356. (Wis.) See also Johnson v. 
 Milwaukie et al., 40 Wis. 315. 
 
418 
 
 TriE LAW OF ASSESSMENTS. 
 
 ceedings had without this prerequisite will be null and 
 void.' In the absence of statutory regulations, a city may 
 
 1 Brady ». King, 53 Cal. 44. The 
 consolidation act of the city and 
 county of San Francisco contains 
 the provisions authorizing the im- 
 provement of the streets and public 
 liighways, and other piibhc works to 
 be done within the municipality at 
 the expense of the adjoining prop- 
 erty. These will be examined in 
 this chapter somewhat in extenso, 
 as they elucidate many questions 
 necessarily involved in the making 
 and enforcement of this class of 
 assessments, and are more or less 
 applicable in all other cities and 
 towns. Proceedings for such im- 
 provements, in said municipality, 
 are commenced in the following 
 manner : 1. If the contemplated im- 
 IJi-ovement consists of grading a 
 street or any portion of a street, the 
 first step is the presentation to the 
 board of supervisoi's of a petition 
 signed by a majority of owners 
 of the frontage of the particular 
 street or part proposed to be im- 
 proved, which petition must state 
 that they (the petitioners) " are the 
 owners and in possession, or agents, 
 of the lots named in the petition," 
 and contain a request that the im- 
 provement or street work petitioned 
 for be done; 2. After receiving such 
 petition the board of supervisors 
 must give notice by resolution of 
 their intention to do the work; 3. If 
 the contemplated improvement con- 
 sists of any other work than the 
 grading or re-grading of a street or 
 part of a street, the work is or may 
 be commenced by a resolution of in- 
 tention, without a petition; 4. If a 
 street shall have been "graded, or 
 graded and macadamized, or graded 
 and paved for the distance of two or 
 more blocks upon each side thereof 
 of any one or more blocks or cross- 
 ing of a street which is not improv- 
 
 ed," it is made the duty of the board 
 of supervisors, upon the recommen- 
 dation of the superintendent of 
 streets, to order the notice; 5. When 
 one half or more of the grading, 
 planking, macadamizing, paving, 
 sidewalking or sewering "of any 
 one street lying between two main 
 street crossings, has already been 
 performed, the board of super- 
 visors may order the remainder 
 of such grading, planking, mac- 
 adamizing, paving, sidewalking or 
 sewering to be done, notwith- 
 standing the objections of any or 
 all the property owners." In all 
 cases, where steps are taken by peti- 
 tion, or by resolution of notice, or 
 upon recommendation of the super- 
 intendent of streets, the property 
 owners, by remonstrance, may stop 
 all further proceedings. In the class 
 of cases first referred to, a majority 
 of frontage is sufficient, but in the 
 other class, two thirds is necessary 
 to prevent the work being done. 
 The petition is the initial proceeding 
 for obtaining jurisdiction in all cases 
 of grading or re-grading; but when 
 other classes of work is contem- 
 plated, the resolution notice is the 
 first step, except where a public 
 street " shall have been graded, or 
 graded and macadamized, or graded 
 and paved for the distance of t\<o or 
 more blocks on each side," when 
 the proceedings are instituted at the 
 request of the superintendent of 
 streets. If a party intends to rely 
 on the fact that the work was not 
 recommended by the superintendent 
 of streets, he must make such alle- 
 gation in his answer. Dyer v. Hey- 
 denfelt, 4 W. C. Rep. 58.5. (Cal.) 
 
 When not authorized to delegate 
 powers. Where the charter does 
 not confer the power on the com- 
 mon council to delegate the power 
 
STUr.ET ASSESSMENTS. 419 
 
 [irovide, by ordinance, the manner of acquiring jurisdiction 
 over street or other work of local improvement, and when 
 this is done, the mode so provided must be followed ; other- 
 wise the proceedings will be void. ^ 
 
 Sec. 278. Jurisdiction — Collateral Attack for -want of. — 
 The general rule applicable to judgments, orders and pro- 
 ceedings of inferior courts, to the effect that the same cannot 
 be assailed collaterally on account of mere error or irregu- 
 larity, applies to proceedings to levy, assess and collect a 
 tax or assessment. If the officer or tribunal had jurisdic- 
 tion of the subject matter, the same presumptions will be 
 indulged in favor of the proceedings as in a court of general 
 jurisdiction.^ 
 
 Sec. 279. Obtaining Jurisdiction — Petition and Resolution. 
 — The petition under the consolidation act of San Francisco, 
 before referred to when that is the initial proceeding, must 
 contain a description of the work and of the locality where 
 it is desired to have the work done ; a description of the 
 frontage lots or land owned by the petitioners to be charged 
 with the expense or cost, and a statement that the petitioners 
 "are the owners and in possession or agents of the lots 
 
 to accept bids, and award and enter signed by a majority of the land- 
 
 into contracts, this must be done by owners to be affected. Tlie com- 
 
 the common council. When the missioners so found and made an 
 
 charter authorized the common order appointing appraisers, as au- 
 
 eouncil to reject all bids, this, by thorized by law, who made a;i as- 
 
 implication, prohibits the exercise of sessment for benefits from which an 
 
 this prerogative by the committee on appeal was taken, but no appeal was 
 
 streets, even when so authorized by taken from the order appointing 
 
 ordinance. City of Stockton v. appraisers. It was held that the 
 
 Creamer, 45 Cal. 244; Session Acts, determination of the question wheth- 
 
 Cal. 1871-2, p. 805; Dyer v. Miller, er the petition was signed by a ma- 
 
 68 Cal. 588. A petition is necessary jority of the landowners, upon the 
 
 also under the 5th clause stated in appointment of appraisers, because 
 
 this section when the work consists final; and it was not competent in 
 
 of grading or re-grading, notwith- any other action or other proceeding 
 
 standing objections cannot be inter- to show that the petition was not 
 
 posed. Dyer v. Miller, 58 Cal. 589. signed by a majority of the land- 
 
 " Starr v. Burlington, 45 Iowa, 87. owners to be affected by the contem- 
 
 1 A petition was presented to the plated work. Argo v. Barthand, 80 
 
 board of commissioners, having Ind. 66; Stoddard v. Johnson, 75 
 
 jurisdiction, to obtain the appoint- Ind. 30; Hume v. The Little Flat 
 
 ment of appraisers to assess benefits Eock Drain. Asso., 72 Ind. 504; Mul- 
 
 and injuries, which purported to be likin v. Bloomiiigton, 72 Ind. 166. 
 
420 
 
 THE LAW OF ASSESSMENTS. 
 
 named in the petition " and a statement, "requesting that 
 the improvements or street work shall be done." ^ The 
 resolution of intention must also describe the work — but 
 this needs to be done onlj in general terms. It must also 
 give a description of the locality where the contemplated 
 work is to be done. The locality must be described with 
 sufficient certainty to identify the place, and it must appear 
 to be within the municipality. The same rules apply to 
 the notice when that is the initial proceeding. The next 
 step is to establish the fact that the owners of the majority 
 of frontage have, in person or by agent, signed the petition 
 or remonstrance.'* Evidence of the performance of the acts 
 required to be done to make a valid assessment must appear 
 of record, or in some other authentic form ; otherwise the 
 assessment will be invalid and cannot be enforced.^ 
 
 'Stat. Cal. 1871-2, p. 805, § 4. The 
 resolution of intention, under the 
 consolidation act of the city and 
 county of San Francisco (Session 
 Acts of 1856, p. 163, § 68), was re- 
 quired after passage to be presented 
 to the president of the board of 
 supervisors, for his approval and 
 signature, before publication. An 
 amendatory act was passed in 1862 
 (p. 391, § 3), by which street im- 
 provement work was not to be 
 deemed " specific improvements " 
 within the meaning of this 68th 
 section. The question whether, by 
 the amendatory act, it was necessary 
 that the resolutions of intention be 
 presented to and signed by the presi- 
 dent of the board, became the sub- 
 ject of judicial construction, and in 
 Creighton v. Manson (27 Cal. 629), 
 Justice Rhodes held that " the dec- 
 laration of intention, whatever may 
 be its form, is a legislative act, and 
 as such must be passed in the mode 
 prescribed by law, and for that pur- 
 pose it must be presented to the 
 president of the board for his ap- 
 proval." But in the later case of 
 Cochran v. Collins (29 Cal. 129-31), 
 the contrary doctrine was held; also 
 
 in the cases of Taylor v. Palmer (31 
 Cal. 244), and Hendrick v. Crowly 
 (31 Id. 473). In the latter case Jus- 
 tice Sanderson said: "The pro- 
 ceedings were had under the act of 
 1862, and we have repeatedly held 
 that under that act the resolutions 
 of the board of supervisors in rela- 
 tion to street improvements need 
 not to be approved by the mayor. 
 They are valid without his approval." 
 In the former case (Taylor v. Palmer), 
 the language is: "Resolutions of 
 intention need only be passed by the 
 board of supervisors and signed by 
 their clerk in order to become valid, 
 all of which is alleged in the com- 
 plaint" (p. 244). In 1871-2 a stat- 
 ute was passed (p. 805, § 4), wherein 
 it is provided that the resolution of 
 intention shall be signed by the 
 clerk of the board and published 
 for ten days in the newspaper do- 
 ing the city printing, and in a morn- 
 ing and evening daily newspaper. 
 Under the statute of 1862 (p. 391), 
 all street improvements were inaugu- 
 rated by a resolution notice ; but the 
 law was afterwards changed by stat- 
 ute of 1871-2. 
 2 The charter of the city of Stock- 
 
STREET ASSFJSSilENTS. 
 
 421 
 
 Sec. 280. Obtaining Jurisdiction — Ascertaining wlietlier 
 Majority signed. — This is usually done by reference of the 
 petition to a committee, and if the committee report as 
 matter of fact that the petition is signed by owners of a 
 majority of frontage, and such report be adopted, and a 
 proper record be made of the proceedings, a primd facie 
 case will be made of jurisdiction ; and in all subsequent 
 proceedings it will be presumed that the board acquired 
 jurisdiction. If the committee report that the petition is 
 not signed by the owners of a majority of frontage, and the 
 report be adopted, no jurisdiction is acquired, and the pro- 
 ceeding ends. In either case — 1st, when from the report 
 of the committee and action of the board it is presumed 
 
 ton provided that " the delinquent 
 tax lists, or the original or duplicate 
 assessment roll, or a copy of an en- 
 try thereon, duly certified, showing 
 unpaid taxes against any persons or 
 property, shall be evidence in any 
 court to prove the delinquency, the 
 property assessed, the amount of 
 taxes due and unpaid, and that all 
 the forms of law in relation to the 
 levy and assessment of said taxes 
 have been complied with." (Stat. 
 Oal. 1871-2, p. 604, § 21.) The 
 charter authorizes the city council 
 to require streets to be graded and 
 improved at the expense of the prop- 
 erty benefited, but requires that, 
 " whenever any street or other work 
 is to be done for which the property 
 is liable, a diagram and estimates 
 shall be made showing the front 
 feet upon the street to be improved 
 in front of each lot, or part of a lot, 
 and the amount of filling in or exca/- 
 vation required." (Stat. Cal. 1871-2, 
 pp. 606-7, § 28. ) It is also provided 
 that when the work exceeds $500 it 
 shall be let to the lowest bidder after 
 notice, &c. (Stat. Cal. 1871-2, p. 608, 
 § 29. ) It is also provided, as to as- 
 sessments for work done for which 
 the property benefited is liable, that 
 " such lists may be used as evidence 
 in any suit in the same manner and 
 
 with like effect as is provided for 
 city delinquent tax lists by this act." 
 (Id. p. 608, § 29.) In construing 
 this statute as to the effect of the 
 delinquent list of an assessment for 
 street improvements, the court held 
 that the lists did not prove the neces- 
 sary jurisdictional facts. Tlie fol- 
 lowing is the language used: "It is 
 quite evident that under these pro- 
 visions of the statute, as applied to 
 actions to enforce street assessments, 
 the assessment lists do not prove, 
 even primd facie, that the city coun- 
 cil ' has caused a survey and esti- 
 mates to be prepared of proposed 
 work, to be filed with the city clerk,' 
 or ' fixed a time for the hearing upon 
 such proposition,' or ordered work 
 or improvements to be done. Nor 
 are the lists evidence of a publica- 
 tion of notice, soliciting bids, or of 
 the awarding of a contract, or of 
 any of the acts of officers of the 
 municipality which precede, at least, 
 the doing of the work. None of 
 these acts separately, nor all of them 
 together, can be said to constitute 
 the 'levy' of an assessment, yet all 
 of them must be averred, and if, as 
 in the case before us, they are de- 
 nied, they must be proved by com- 
 petent evidence." City of Stockton 
 V. Dahl, 3 W. C. Rep. 308-9. 
 
422 THE LAW or ASSESSMENTS. 
 
 that jurisdiction was acquired, in a judicial proceeding to 
 enforce a sale of property for non-payment of the assess- 
 ment, the owner may show that the petition was not signed 
 by the owners of a majority of frontage, and such showing 
 will defeat the assessment : and 2d. when the committee 
 rpport that the petition is not signed by the owners of a 
 majority of frontage, it is competent for the board to ascer- 
 tain the actual facts through other sources, and by proper 
 action declare, if it be in accordance with the facts, that the 
 petition was signed by a majority of the owners of frontage. 
 Authorized agents of owners are competent to sign the 
 names of their principals to the petition. In such cases 
 the name of the owner should be signed in such manner as 
 to show that it is done by the agent. Like action is proper 
 in case of a remonstrance. 
 
 Sec. 281. obtaining 'Jurisdiction — Right of Petitioners— 
 Hesolution without Petition. — If the petition be in fact signed 
 by the owners of a majority of frontage, it becomes the 
 right of the petitioners to have the work done. The Board 
 of Supervisors or governing power of the city are consti- 
 tuted iu law the agents or trustees of the property owners 
 to have the work done at their expense — or speaking more 
 strictly, at the expense of the property to be benefited.^ 
 After a contract has been entered into under proceedings 
 authorizing the same, it is beyond the power of the legisla- 
 ture to affect the validity of the contract or the enforcement 
 of the assessment by repealing the act conferring upon the 
 municipality the power to require the improvement to be 
 made at the cost of the property benefited. "Such a con- 
 tract is as free from legislative control as one between indi- 
 viduals." ^ 
 
 ' It will be seen that, in only one advertised, or at the instance of the 
 
 class of improvements under the superintendent of streets. When 
 
 •consolidation act of the city and the property owners do not wish to 
 
 county of San Francisco (§ 2'?6), have the work done at their expense, 
 
 are the proceedings required to be they can, by the united action of the 
 
 initiated by the property owners, i. e. , owners of a majority of frontage, pre- 
 
 wlien grading work is to be done, vent it hy filing a remonstrance, ex- 
 
 In all other cases the board act on cepting the work included within the 
 
 llieir own motion by a resolution 5th clause mentioned in n. 1, § 276. 
 
 declaring an intention to do the '^ Goodale b. Fennell, 27 Ohio; {s. 
 
 work, and causing the same to be c. 22 Amer. Eep. 328.) 
 
STREET ASSESSMENTS. 423 
 
 Sec. 282. Obtaining Jurisdiction — Other Acts necessary, — 
 Under the present constitution of Ciilifornia, other acts are 
 made necessary to acquire jurisdiction over work to be 
 done at the expense of the property to be benefited. That 
 instrument provides that " no public work or improve- 
 ment, of any description whatsoever, shall be done or made 
 in anj' city, in, upon, or about the streets thereof, or other- 
 wise, the cost and expense of which is made chargeable or 
 maybe assessed upon private property by special assessment, 
 unless an estimate of such cost and expense shall be made, 
 and an assessment in proportion to the benefits, on the prop- 
 erty to be affected or benefited, shall be levied, collected and 
 paid into the city treasury before such work or improvement 
 shall be commenced, or any contract for letting or doing the 
 same authorized or performed." ^ The acts specified in the 
 above extract are additional to those already mentioned, to 
 give jurisdiction over the work so far as to make an assessment 
 enforceable against the propertj'' sought to be chargedi Pre- 
 vious to the adoption of the constitution, the provisions of 
 the charter of San Francisco required that the work be done 
 before an assessment therefor could, be levied or collected, 
 and such is the rule in nearly all municipal corporations. 
 The question arose, whether this provision of the constitu- 
 tion was in force upon the adoption of the constitution, or 
 whether it was necessary to provide by legislation for mak- 
 ing the estimate, levj'ing and collecting the assessment, 
 before it operated to prevent the letting of a contract for 
 street improvements, under the law existing at the time of 
 the adoption of the constitution ; and it was held that it 
 was self-executing, and that no expense of * street work 
 could be enforced against the adjoining property until its 
 provisions were complied with.^ * 
 
 Description of the work. It is necessary under most all 
 systems providing for local or special assessments, before 
 
 ' Sec. 19, Art. XI. Cons. Cal. before letting the contract for the 
 
 2 McDonald v. Patterson, 54 Cal. work, but in doing so have covered 
 
 245. the entire subject of street and other 
 
 5 Since then, the legislature has -improvements done at the expense 
 
 attempted to furnish the necessary of the property to be benefited. 
 
 legal machinery to make the esti- • Stats, of Cal. 1883, p. 32. 
 
 mate, the assessment and collection 
 
424 
 
 THE LAW OF ASSESSMENTS. 
 
 proceeding to let a contract for street improvements of any- 
 kind, where the work is to be contracted for to the lowest 
 bidder, to describe the kind, character and nature of the 
 work. This may be done by an order, ordinance, resolu- 
 tion or notice of intention. The action or proceeding 
 should show in positive terms the intention and determi- 
 nation to do the work,* and should be done in the mode 
 prescribed by the statute or charter authorizing the work to 
 be done at the cost of the property to be benefited. The 
 same rule obtains when it is a condition precedent that 
 surveys, or estimates or plans and specifications, are re- 
 quired to be made and filed before notice to property own- 
 
 « Merrill v. Abbott, 62 Ind. 550. 
 [Ante, § 279.) In tbe above case it 
 was held that a mere expression of 
 opinion is not sufficient, and the fol- 
 lowing resolution was adjudged to be 
 insufficient: "Kesolved, That in 
 tlie opinion of this council the 
 present condition of Main street, 
 from the east line of the Vigo 
 ■\Voolen Mills to Fourteenth street, 
 is not only a public nuisance but 
 detrimental to the interests of the 
 city. Therefore be it further re- 
 solved, That the city engineer be, 
 and he is hereby, instructed to ad- 
 vertise for bids for grading and grav- 
 elling the said Main street, from the 
 east line of the Vigo Woolen Mills 
 to Fourteenth street, including side- 
 walks, said work to be done at the 
 several property holders' expense on 
 the line of said work. Bids to be 
 read at our next regular meeting." 
 Id. 550-1. The objection made and 
 sustained to the resolutions was that 
 they do not contain, in legal effect, 
 an order for the contemplated im- 
 provement. 
 
 A general description sufficient. 
 Although a description of the work 
 is necessaiy, a general description is 
 sufficient where plans and specifica- 
 tions are required previous to re- 
 ceiving bids for doing the work. A' 
 resolution in the following language 
 
 was held sufficient: "Resolved, 
 That it is the intention of this 
 board to order the following street 
 work: That Fremont street, from 
 Mission to Howard streets, be graded 
 and macadamized." Emery v. San 
 Francisco Gas Co., 28 Cal. 375. In 
 another case the resolution described 
 the work to be done as "a brick 
 sewer, with man-hole and cover." 
 The court said: "The description 
 is imperfect; so would any descrip- 
 tion be, short of one containing a 
 complete plan and specifications. It 
 is evident, however, that the law did 
 not require the description to con- 
 tain a plan and specifications, for, at 
 a later stage in the proceedings, the 
 board was authorized to call upon 
 the superintendent of sti-eets to fur- 
 nish ' plans, specifications and care- 
 ful estimates.' " In short, the board 
 of supervisors are not required in the 
 resolution to describe the work " with 
 any more exactness than it is de- 
 scribed by the law itself." (Harvey 
 V. Hiller, 47 Cal. 17.) Since the 
 amendments of 1862 the resolution 
 does not require the signature or 
 approval of the mayor. (Taylor v. 
 Palmer, 31 Cal. 343.) The same 
 statutory provision is carried into 
 the statutes of 1871-2. (Stat, of 
 Cal. 1871-2, p. 805.) The charac- 
 ter of the work to be done must bo 
 
STREET ASSESSMENTS. 
 
 425 
 
 ers is to be given of intention to do the work, or for bids. 
 In eitlier case that which is required to be first done for 
 the information of the property owner or bidder, must be 
 done before the notice is given ; otherwise the assessment 
 will be invalid.^ The character of the work to be done 
 must be described in the ordinance, order, resolution or 
 notice provided for bj'^the charter or statute authorizing the 
 municipality to require the work to be done. The selection 
 of the material, as also the manner of performing the work 
 cannot be delegated to the city engineer or other officer 
 having superintendence of streets or public works, unless 
 he be authorized by law to perform these functions.® '^ 
 
 Sec. 283. obtaining Jurisdiction — Work must be described 
 in positive terms. — The description of the work to be done 
 must leave nothing open to oral proof. It must not be left 
 to the superintendent of streets or other person to deter- 
 mine the character, extent and locality of the work. 
 
 described in the ordinance, order, 
 resolution or notice provided for by 
 the charter, or other authority for 
 requiring the work to be done. 
 
 5 Where the charter required the 
 street commissioners, when contem- 
 plating a street improvement, to 
 cause to be made an estimate of the 
 whole expense and the proportion to 
 each lot, and, in case of grading, the 
 number of cubic yards to be filled or 
 excavated in front of each lot, and 
 file the same with the city clerk for 
 the inspection of those interested, 
 and in another section required the 
 commissioners to give notice by ad- 
 vertisement for two weeks to lot 
 owners to do the work required, and 
 if not done within the time fixed in 
 the notice to contract for doing the 
 work, it was decided " that the seve- 
 ral steps provided for in this section 
 are to be taken in the order in which 
 they there stand; and that the taking 
 of each constitutes a condition prece- 
 dent to the right to take those fol- 
 lowing it. According to this, the 
 making and filing of the estimate of 
 the number of cubic yards to be filled 
 
 or excavated in front of each lot, was . 
 a condition precedent to the publica- 
 tion of the notice." Myrick v. La 
 Cross, ]7 Wis. 444; Kneeland v. Mil- 
 waukie, 18 Id. 411. 
 
 Smith V. Duncan, 77 Ind. 93. See 
 also City of Stockton, o. Creamer, 45 
 Cal. 644. {Ante, n. 1, § 276.) 
 
 ' The rule of law on this point is 
 well expressed in the following ex- 
 tract: " We feel justified in saying 
 that an order for a street improve- 
 ment must, in appropriate terms, 
 either ordain, resolve or declare, that 
 the street improvement to which it 
 refers shall be improved, specifying 
 the nature, character or plan of the 
 improvement, in such a way as to 
 give at least a general direction to 
 the letting of the work and the exe- 
 cution of the contract contemplated 
 by such order. Such an order is, in 
 some respects, analogous to a judi- 
 cial order, and ought, clearly and 
 explicitly, to prescribe what it au- 
 thorizes to be done as regards the 
 contemplated improvement to which 
 it is intended to apply." Merrill b. 
 Abbott, 62 Ind. 549. 
 
426 
 
 THE LAW OF ASSESSMENTS. 
 
 Where the statute requires the commissioners appointed 
 to make an assessment for damages and benefits after they 
 shall have made the assessment, to publish notice to land- 
 owners affected, "that their report has been deposited," 
 and fixing a time and place for hearing objections, it is nec- 
 essary that such notice contain the report itself or so much 
 of it as describes the particular land assessed, and against 
 what persons as owners thereof.^ It is not a sufficient des- 
 ignation of the locality, when the work relates to tlie 
 improvement of portions of a street to state in the order, 
 resolution or notice, that the work will be done on a street 
 designated, " where necessary " ^ or " where required " ' or 
 "where not already done."*^ Such a description of the 
 locality of the work to be done would give no notice to the 
 landowner of an intention to charge his property with an 
 assessment. Where the notice, order or ordinance is not 
 supplemented with plans and specifications before the letting 
 
 ^ State V. Mayor of Newark, 31 
 N. J. L. 364. 
 
 ^ A resolution which declared the 
 intention to improve certain streets 
 by repairing such streets and the 
 cross walks "where necessary;" 
 constructing cesspools and culverts 
 "where necessary;" and construct- 
 ing and reconstructing curbs and 
 sidewalks "where necessary;" was 
 held to be insufficient. People v. 
 Clark, 47 Cal. 457 ; People v. Ladd, 
 47 Cal. 604. 
 
 " So also where the work was de- 
 scribed as repairing a portion of a 
 certain street, describing it, " with 
 piles, caps and planks where neces- 
 sary, and that the sidewalks thereon 
 be reconstructed where necessary;" 
 it wa,s held to be insufficient to give 
 jurisdiction. Randolph v. Gawley, 
 Id. 458; Richardson B. Heydenfeldt, 
 46 Cal. 69. 
 
 * Where the language was, " That 
 sidewalks be constructed on Shot- 
 well street from Fourteenth to 
 Eighteenth streets, where not al- 
 ready constructed ; and that the side- 
 walks thereon be reconstructed 
 
 where necessary; " it was held that 
 no jurisdiction was conferred, and 
 the contract for doing the work was 
 void. Himmelmann v. McCreery, 
 51 Cal. 563; Brady b. King, 53 Cal. 
 44. These two cases, Randolph v. 
 Gawley and Himmelmann v. Mc- 
 Creery, seem to conflict with Emery 
 V. San Francisco Gas Co. (28 Cal. 
 378), where the resolution of inten- 
 tion to grade and macadamize, con- 
 tained the words, " except where 
 done," these words being construed 
 in that case to refer to grading only. 
 ^ Where the ordinance provided 
 for the improvement of Chicago 
 Avenue from the east line of Clark 
 street to the east line of block 53, 
 Kinzie's Addition, and that said por- 
 tion of the street be " curbed with 
 curb stones, filled, graded and paved 
 with wooden blocks, excepting such 
 portions of the above described work 
 which have already been done in a 
 suitable manner; said work to be 
 done under the superintendence of 
 the board of public works; " it was 
 held that the assessment was void on 
 the ground that, " what portion had 
 
STREET ASSESSMENTS. 
 
 427 
 
 a more specific description — one by which the work may be 
 done and contract therefor let, is required.^ 
 
 Sec. 284. Obtaining Jurisdiction — More than one Improve- 
 ment may be included and contracted for. — Where no restric- 
 tion exists in the organic law,^ it is no objection to the reso- 
 lution or notice of intention that more than one item of 
 improvement is included in the resolution of intention or 
 notice, and in the contract for doing the work. The pur- 
 pose of the notice to the tax-payers is to acquaint tlieni 
 with the particular work or improvement which is intended, 
 and this can as well be done in one notice embracing all the 
 items of work as in a notice for each.^ Having acquired 
 jurisdiction over the work through the notice, the authority 
 to include in one notice for bids and one contract, all the 
 ■work embraced in the notice follows.^ 
 
 already been done in a suitable man- 
 ner, was in no way defined." An- 
 drews ». City of Chicago, 57 111. 240. 
 * Where the work is to be done un- 
 der an order, the nature, character 
 or plan of the proposed improve- 
 ment must be stated at least so spe- 
 cifically as to let the wtfrk and exe- 
 cute a contract for doing it. Merrill 
 V. Abbott, 52 Ind. 519; Smith v. 
 Duncan, 77 Ind. 95. 
 
 1 Where a restriction or limitation 
 exists in the organic or other law 
 authorizing the assessment requiring 
 that only one improvement or street 
 be included in a single assessment, 
 it is not a sufficient ground to enjoin 
 the collection of the assessment that 
 the description of the contemplated 
 work includes two or more names of 
 streets where the diagram shows but 
 a single street, called at different 
 places by different names. Cuming 
 V. Grand Kapids, 46 Mich. 15.3. 
 
 2 In Emeiy v. San Francisco Gas 
 Light Co., one of the objections to 
 the assessment made was "that the 
 board had no power under the stat- 
 ute to declare their intention to 
 grade and also to macadamize a 
 street in the same notice or resolu- 
 
 tion." In overruling this point the 
 court said: "The sole purpose of' 
 the resolution and its publication . . . 
 is to notify property holders that the 
 board are about to improve a given 
 street, or some part thereof, by caus- 
 ing certain kind or kinds of im- 
 provements to be made, in order 
 that they may have an opportunity 
 to oppose the improvements in the 
 manner prescribed in the Act, if 
 they desire to do so. Suppose the 
 board intended to order all the dif- 
 ferent kinds of work requisite to the 
 full improvements of a street upon 
 a given plan, to be done, what sense 
 or reason, in the absence of an ex- 
 press and clear provision to that ef- 
 fect, is there in requiring tliem to 
 pass and publish a separate resolu- 
 tion for each kind of woi'k, when as 
 to all the parties concerned it can be 
 as well, if not better, done in a sin- 
 gle resolution, setting forth in con- 
 nected detail all the improvements 
 intended to be made ? Such it seems 
 to us would be the more orderly and 
 systematic method, and therefore 
 most advisable." Emery v. San 
 Francisco Gas Co., 28 Cal., .375. 
 * Where the objection was made to 
 
428 
 
 THE LA"W OP ASSESSMENTS. 
 
 Sec. 285. Obtaining Jarisdiotioa— Resolution must include 
 all the Work. — The resolution notice must include all the 
 items of work covered by the assessment. A resolution that 
 declares an intention to curb and macadamize a street does 
 not include the sidewalk, and no recovery for the assessment 
 can be had if work not included in the resolution or notice 
 be included in the assessment, not even for the work that 
 was included. But where work is necessarily incidental to 
 that which is expressed in the resolution notice, it will be 
 considered as part of it and of the expenses to be included 
 in the assessment.^ 
 
 the validity of the assessment that 
 street grading was included in the 
 same contract for macadamizing, 
 Justice Shabpstbist used the fol- 
 lowing language: "After an order 
 is made, it is the duty of the super- 
 intendent to advertise for sealed pro- 
 posals, which must be submitted to 
 the board, which has power to ac- 
 cept the lowest. In Emery v. San 
 Francisco Gas Co., 28 Cal. 375, it 
 was held that the board had power 
 to declare their intention to grade 
 and macadamize a street in the same 
 resolution. That being so, it is 
 quite clear that both kinds of work 
 may be ordered at the same time, 
 and if ordered, sealed proposals for 
 doing both be advertised for at the 
 same time, and contracts for doing 
 both awarded at the same time. The 
 only jurisdiction which the board 
 has is given by the statute, and, if 
 the statute be constitutional, we can- 
 not add any conditions precedent to 
 those specified in the statute.'' Dyer 
 V. Hudson, 3 "West Coast E. 198. 
 (Cal.) 
 
 ' A resolution of intention described 
 the work as follows: "ThatVallejo 
 street, from Polk to Gough street 
 (except the crossing of Van Ness 
 avenue and Vallejo street), be mac- 
 adamized and curbed with red wood 
 curbs," and it appeared that in ad- 
 dition to the roadway there was 
 included in the assessment the side- 
 
 walk, and the court found separately 
 the cost of the roadway and curbing 
 and the sidewalk, and gave judg- 
 ment only for the roadway and curb- 
 ing; the judgment was reversed, the 
 court remarking that " The plaintiff 
 is not entitled to a recovery unless 
 he proves a demand for the amount 
 legally due for the work." It will be 
 seen however, upon reviewing the 
 New York cases, that under a stat- 
 ute of that state a different rule pre- 
 vails as to assessments, when im- 
 proper items or sums are included. 
 (See In re Auchmuty, 90 N. Y. 685; 
 ante, § 138, n. 5;) Himmelmann v. 
 Satterlee, 50 Cal. 70; Dyer v. Chase, 
 52 Id. 441. Where the projected im- 
 provement consisted in words only 
 of a sidewalk, and the roadbed was 
 unpaved, and it appeared that it was 
 necessary, while the roadbed was in 
 that condition, for the security of the 
 sidewalk, to lay a gutter to receive 
 and carry away the flow of water 
 from the sidewalk, it was held that 
 " the gutter was part of the work 
 necessary to be done in the construc- 
 tion of the sidewalk," and that the 
 expense of the gutter was " part of 
 the expense of the construction of 
 the sidewalk, and its cost may prop- 
 erly be included in the costs and 
 expenses of the sidewalk, and be 
 assessed in the same manner." Rob- 
 ins V. New Brunswick, 44 N. J. L. 
 117. Whether any of the work con- 
 
STREET ASSESSMENTS. 429 
 
 Sec. 286. Obtaining Jurisdiction — Work not covered by 
 Hesolutiou or Notice— Street does not include Sidewalk— includ- 
 ing unauthorized items. — Where work not included in the 
 resolution or notice is done in connection with items of work 
 which are included, and the expense thereof is included in 
 the assessment, in the absence of a healing or enabling stat- 
 Tite it vitiates the whole, and the assessment cannot be 
 enforced even to the extent of the work covered or included 
 within the resolution unless that which is not, can be separ- 
 ated from that which is included in the resolution or notice, 
 and the latter only is sought to be enforced. In a case 
 involving this point where the suit was prosecuted to enforce 
 payment of an assessment including unauthorized items, the 
 court held in the following language : " The plaintiff is not 
 entitled to recover unless he proves a demand for the amount 
 legally due for work. — The demand . . . was for the whole 
 assessment and not for the portion thereof which would be 
 chargeable for the work on the roadway."^ Bat where 
 items for incidental expenses are included for a character 
 of work where such expenses are not chargeable to the 
 property, and no objections are made on that ground in the 
 court where suit is brought to enforce the assessment, it is 
 too late to make the objection for the first time in the 
 appellate court.'^ Where the notice of intention was, 
 "That Washington Street from Van Ness Avenue to Polk 
 Street be macadamized and curbed with red wood curbs," 
 and the notice for bids was, "for macadamizing" (same 
 street) " and curbing the same with red wood curbs," and 
 added " the roadway . . . is to be covered to the depth of 
 six inches and the "sidewalks to the depth of four inches 
 with clay" etc. etc., and the contract was let and performed 
 under the notice for bids, the court held that the macadam- 
 izing of a street and the construction of sidewalks are 
 different kinds of work, being so designated in the statute ; 
 that when a street is ordered to be macadamized, it is 
 meant that the roadway only is to be improved, and that the 
 Board of Supervisors did not by the resolution of intention 
 acquire jurisdiction to order work to be done on the side- 
 
 tained in the resolution or notice can ^ Dyer v. Chase, 52 Cal. 441. 
 
 be omitted. See post, § 293 and note. ^ peady v. Townsend, 57 Cal. 299. 
 
430 THE LAW OF ASSESSMENTS. 
 
 walks and that the contract for the work was void unless 
 the work done on' the sidewalks could be separated from 
 that performed in the roadway.^ In a later case decided in 
 the same court, where a similar state of facts existed and 
 the court below found the cost of the work on the road- 
 way and that on the sidewalk separately ; deducted the 
 cost of the work of the sidewalk and gave judgment for the 
 cost of the work on the roadway; but the judgment was 
 reversed on the ground tJiat the demand sued on was for 
 the whole assessment and not for the work done only on 
 the roadway.* In Wisconsin, where an assessment by mis- 
 take was made too large and the excess is clearly ascer- 
 tainable by computation, an injunction will not lie to restrain 
 the collection of the excess without payment of the amount 
 properly chargeable and due.* In New York the appellate 
 court has power, expressly conferred by statute, to make a 
 deduction from an assessment where the expense of the 
 work " has been unlawfully increased," or grant a rehearing 
 in the lower court for that purpose.® ' 
 
 Sec. 287. Obtaining Jurisdiction — Publication of Resolution 
 or Notice: Proof of. — Where publication of the notice or 
 resolution is required, this becomes a necessary act to acquire 
 jurisdiction over the work. The publication of the resolu- 
 tion is intended to give notice to all persons interested, so 
 that they may file their protest and objections to the work 
 being done in case they desire to do so, for these must be 
 filed within the time required for making the publication and 
 cannot be filed afterwards, unless specially authorized by 
 statute.^ Where the statute requires the first and last date 
 of the publication of the notice to be stated in the certifi- 
 cate of publication, and the certi£cate was in the following 
 language : " This certifies that the appended corporation 
 notice has been published in the Chicago Republican, the 
 corporation newspaper of the city of Chicago, county of 
 Cook and state of Illinois, six days consecutively (excepting 
 Sundays and holidays) commencing with Wednesday, August 
 
 ' Himmelman v. Satterlee, 50 Cal. « In re Merriam, 84 N. T. 606, and 
 
 70. cases cited. (See ante, § 138. ) 
 
 4 Dyer v. Chase, 52 Cal. 441. i Stat. Cal. 1771-2, p. 806. 
 «Mms ij. Charlton, 29 Wis. 400. 
 
STREET ASSESSMENTS. 431 
 
 25th, 1869," — it was held not to be a compliance with the 
 requirements of tlie statute, and gave no jurisdiction over 
 subsequent proceedings.^ The certificate of publication is 
 equally defective if it omit the last day of the publication 
 of the notice.* 
 
 Sec. 288. obtaining Jurisdiction — Publication of the Reso- 
 lution or Notice: what the Record ought to Show. — Where jur- 
 isdiction is obtained by pablication of a resolution or notice, 
 the record and the proceedings of the common council or 
 other legislative authority of the city or town must show 
 affirmatively that the publication was made. This may be 
 done by securing and filing, as part of the municipal records, 
 the proof of the publication in whatever form the statute 
 has provided in this class of cases, or if no special provision 
 exists, in such mode as is by general statute provided for, 
 in making proof of the publication of ordinary legal notices, 
 and by proper recitals in the minutes kept of the proceed- 
 ings of the common council or other governing authority 
 of the municipality; but such recitals, unsupported by the 
 original proofs, are not sufficient of themselves to establish 
 the fact of publication.^ 
 
 2 Andrews v. City of Chicago, 57 plied for, seeking to vacate these as- 
 Ill. 240. sessments, on the ground that the 
 'Allen B. City of Chicago, Id. 264. record of proceedings of the com- 
 1 The charter of the city of Port- mon council did not show that the 
 land (Or. ) provides that " no grade notice required had ever been given, 
 orimprovement mentioned in section The record, being produced, showed 
 79 can be undertaken or made with- that before the passage of the ordi- 
 out ten days' notice thereof being first nance the common council made an 
 given by publication in some daily order that notice of the proposed 
 newspaper published in the city of improvement be given; also a recital 
 Portland." A like requirement ex- that such notice had been published 
 isted in another section as to notice, ten consecutive times in a newspaper 
 before any sum of money could be named, giving the first and last days, 
 collected for any such purpose. Un- inclusive, of the publication. A 
 der authority of these provisions of copy of the notice, in due form, 
 the charter the city passed an ordi- appeared in the record. The record 
 nance for improving part of a street also contained a proper form of ne- 
 at the expense of the lots fronting tice of the proposed assessment, and 
 thereon; the work was done, an as- a recital that it ha4 been duly pub- 
 sessment made therefor, and the lished in a newspaper named, giving 
 sums assessed against the lots, dates; but no affidavit of the printer 
 " docketed in the city lien docket or foreman of either of the newspa- 
 as provided by the charter of the pers mentioned of the publication of 
 city." A writ of review was ap- the notices appeared to have been 
 
432 
 
 THE LAW OF ASSESSMENTS. 
 
 Sec. 289. Obtaining Jurisdiction — when Jurisdiction attaches. 
 — The time when jurisdiction over the work attaches, 
 becomes important as between grantees of the property- 
 sought to be charged with tlie lien created by an assessment 
 for the work. It may be stated as a general rule that the 
 jurisdiction attaches when the act or acts are performed 
 
 filed. The city auditor, in his cer- 
 tificate to a supplemental return to 
 the writ, stated that no other proof 
 of the service of the notices, except 
 the files of the newspapers men- 
 tioned, was on file in his office. He 
 further stated that the number of 
 insertions claimed for the bills for 
 the printing were found to be cor- 
 rect by the council, but the bills had 
 no copies of the notices nor affi- 
 davits attached to them. The city 
 charter contained a section provid- 
 ing that " all proceedings concern- 
 ing assessments shall be presumed 
 to be regular and duly done or taken, 
 until the contrary is shown." The 
 Supreme Court of Oregon, passing 
 upon the questions raised by the 
 petition for the writ, used this 
 language : " The city council of 
 Portland, in passing the ordinance 
 and levying the assessment under 
 review, was in the exercise of ' a 
 statute authority in derogation of 
 the common law,' which it could 
 only exercise in strict pursuance of 
 the mode prescribed by the statute. 
 Without the notice prescribed by 
 sections 79 and 89 of the charter, 
 the proceeding was without juris- 
 diction and void." In reply to the 
 claims set up in favor of the pre- 
 sumption of regularity provided for 
 in the city charter, the learned judge 
 delivering the opinion uses the fol- 
 lowing language : "It may well be 
 doubted whether this question can 
 be so construed as to require the 
 courts to presume the jurisdiction 
 of the city council to pass an 
 ordinance providing for a street im- 
 provement, or the levy of an assess- 
 
 ment for such improvement upon 
 the property adjoining, even in a col- 
 lateral proceeding. Without juris- 
 diction there could be no assessment 
 of property or levy of taxes author- 
 ized by the Act. The attempted 
 assessment or levy would not be 
 authorized by the Act, and would 
 be absolutely void. No question as 
 to its regularity could be raised. We 
 think that the correct construction 
 of the section is that after jurisdic- 
 tion of the subject matter and prop- 
 erty is acquired, without which there 
 could be no assessment or levy, the 
 subsequent proceedings will be pre- 
 sumed regular, and duly done or 
 taken until the contrary is shown. 
 This construction is not inconsist- 
 ent with the language used, and is 
 in accordance with the established 
 rules of law in regard to such sales. 
 We are further of the opinion that 
 the decision of the court below would 
 liave been correct, even if the pre- 
 sumption had been in favor of the 
 jurisdiction of the city council. This 
 proceeding directly attacks the ordi- 
 nance and assessment. The petition 
 alleges that no notice was given of 
 the proposed improvement or of the 
 assessment. To prove this, respon- 
 dent caused to be presented to the 
 court the record. He could only 
 show the error by the record. Tlie 
 record when produced failed to show 
 that notice was given. If the law 
 required him to prove a negative, the 
 want of notice, we think he did so 
 when he caused the record to be pro- 
 duced, and that failed to show that it 
 was given." Van Sant v. City of 
 Portland. 
 
STREET ASSESSMENTS. 
 
 483 
 
 which give the municipal coiporcation authority to require 
 the work to be done. These acts are generally made to 
 consist of a petition to the common council or other gov- 
 erning board of the municipality by parties interested ; the 
 adoption of a resolution of notice or other initial action 
 l^rovided for in the charter or statute conferring the power 
 to require the contemplated improvement to be made at the 
 proper cost of adjoining property and publication thereof, 
 or other acts prescribed, by municipal organic law.^^ 
 
 Sec. 290. Advertising for Bids— Describing the Work — Com- 
 petition In Bidding. — Wiiere the improvement is required 
 under the charter or statute to be awarded to the lowest 
 bidder, public notices, usually by advertisement in a news- 
 paper, inviting proposals for doing the work ; and all items 
 of material and labor to be used must be designated and 
 left open to competition. A notice to bidders must not fix 
 
 'Under the consolidation act of 
 the city and county of San Francisco 
 the jurisdiction attaches when the 
 resolution of intention has been 
 published as required. Therefore, 
 where a lot fronting on the street 
 where the work described in the 
 resolution of intention, after the 
 resolution was advertised, was cut 
 up into smaller lots, or fractions of 
 a lot, it was held that the contractor 
 was entitled to have the lien enforced 
 against the land as it existed at the 
 time the contract was entered into. 
 Dougherty v. Miller, 36 Cal. 87-9. 
 
 2 In Michigan, under the charter 
 of Grand Rapids to obtain jurisdic- 
 tion over a street improvement for 
 opening or continuing a street, the 
 following steps are necessary: First. 
 " A resolution of the common coun- 
 cil declaring the necessity of the im- 
 provement, and describing that and 
 the property to be taken, and de- 
 claring that they will, on a day 
 named, apply to the recorder's court 
 for a jury ' to ascertain the necessity 
 ior using the property Intended to be 
 taken, if it he intended to take any, 
 for such improvement, to ascertain 
 28 
 
 the just damages wliich any person 
 may be entitled to if such intended 
 Improvement be made, and to appor- 
 tion and assess such damages and 
 compensation to and upon all lots, 
 premises and subdivisions thereof 
 which will be benefited by such im- 
 provement.' " Second. The publi- 
 cation of a certified copy of this 
 resohitlon in a newspaper published 
 in that city, for " four successive 
 weeks.". Third. Personal service of 
 this resolution, or by leaving such 
 notice at the residence of each owner 
 of property to be affected, " if in the 
 city, or if not, then on the occu- 
 pants, if known, and residents; and 
 if unknown, by posting on the prern- 
 ises." This latter service is to be 
 made by tlie marshal, and he is re- 
 quired to "make return of his do- 
 ings" to the recorder's court at least 
 six days before the day appointed in 
 the resolution for the hearing of the 
 application. Tliese acts being done 
 jurisdiction is acquired, and a jury 
 is to be summoned to determine upon 
 the necessity of the proposed im- 
 provement, and if determined af- 
 firmatively, to apportion and assess 
 
434 
 
 THE LAW OF ASSESSMENTS. 
 
 prices on any of the material to be used, but where this is 
 done as to one or more items, it does not, under the statute 
 and decisions in New York, vitiate the entire contract, but 
 gives to any aggrieved party a right to a reduction upon his 
 assessment to the extent of any injury sustained.^ ^ '^ Where 
 phms and specifications are required, these should be so 
 
 such damage and compensation to 
 and upon all the lots and subdivisions 
 thereof which will be benefited by 
 such improvement. Powers' Ap- 
 peal, 29 Mich. 507. 
 
 ^This view was taken in New 
 York, where part of the work was 
 covered by a patented process and 
 part was not, being an application to 
 vacate an assessment. The facts 
 were that part of the work was re- 
 quired to be done witli Nicholson 
 pavement, which was a patented 
 process and owned by a single com- 
 pany, and the whole of tlie work 
 was advertised for bids, without sep- 
 arating tlie part not covered by the 
 Nicholson patent from the part re- 
 quired to be done by the patent-pro- 
 cess. No objection was made in the 
 petitions to so much of the contract 
 as required Nicholson pavement, on 
 the ground that it was a patented 
 process and would admit of no com- 
 petition, the objection made being 
 that the portion not covered by the 
 patented process was not separated 
 from that which was in tlie adver- 
 tisement for bids, and that no one 
 except the owners oil ohe patented 
 process could bid for the work not 
 covered by the patented process. In 
 passing on tliis objection the court 
 said: "It appears that the Nichol- 
 son pavement is a patented article, 
 which could be furnished by only 
 one parly, and that there was neces- 
 sarily but one bidder for the con- 
 tract. The objection taken in the 
 respondent's points, that inasmuch 
 as there can be no competition in 
 such patented articles the city has no 
 right, imder the charter, to contract 
 
 for them, is not taken in these peti- 
 tions, and is not properly before us ; 
 but the objections which are taken 
 in the petitions to the want of a 
 sufficient advertisement for pro- 
 posals for the cross-walks or bridge 
 stones, ordered by the resolutions, 
 does raise the question whether, 
 where an Improvement is ordered by 
 the common council which embraces 
 several kinds of work, capable of 
 being separately perfoi-med by differ- 
 ent parties, some of which works 
 are patented and others not patented, 
 separate proposals should not be in- 
 vited for that part of the workwhich 
 is not patented, and for which there 
 can be no competition," and the court 
 held that "where the work is separ- 
 able, separate proposals should be in- 
 vited by advertisement for that poi^ 
 tion which is not the subject of a 
 patent, so that persons other than 
 those controlling tlie patent may be 
 bidders." Matter of Petitions of 
 Eager et al. 46 N. Y. 100-105. (See 
 post, § 295, n. 2.) 
 
 -In re Merriam, Si N. Y. 601; 
 Id. 009. 
 
 " A notice to bidders contained the 
 following provision: "Bidders will 
 state in their proposals the price for 
 excavating rock per cubic yard (one 
 fourth the price bid for rock exca- 
 vation will be allowed as the price 
 for earth excavation per cubic 
 yard"); and there were two bidders 
 lower than all the others. The work 
 to be done was 6,000 cubic yards of 
 earth excavation, and 40,000 cubic 
 yard s of rock excavation. The price 
 bid by B for rock excavation was 
 $1.30 per cubic yard, and 5 cents per 
 
STREET ASSESSME>;TS. 
 
 435 
 
 made as to cover all the work to be included in the notice 
 or to be contracted for. If a part of the work is omitted 
 from the specifications exhibited to persons intending to bid, 
 and such omitted portion is, after the bidding, included in 
 the contract and included as part of the cost, the assessment 
 cannot be maintained.^* Makhig and exhibiting plans and 
 
 cubic yard for earth excavation. The 
 price bid by F was $1.77i for rock 
 and 44f cents for eartli excavation. 
 There were other items of work cov- 
 ered by tlie same bidding. Upon an 
 estimate of the entire work B's pro- 
 posal was found to be $2,500 lower 
 than F's. It was lield that the pro- 
 vision inserted in the notice, being in 
 accord with tlie ordinance, was not 
 illegal, and did not prevent competi- 
 tion on the earth excavation ; that it 
 was a regulation as to the mode of 
 bidding wliich the municipal authori- 
 ties could make; tliat F's bid for 
 earth excavation being more than 
 one fourth the price iixed upon rock 
 excavation, although but a trifle 
 more, was properly thrown out, and 
 that inasmuch as B's bid was in fact 
 the lowest, even if error had been 
 committed, it was not a substantial 
 error for which any tax-payer could 
 claim to have been injured. In re 
 Marsh, 88 jST. Y. 433. 
 
 " " The charter of the city of Stock- 
 ton provided for acquiring jurisdic- 
 tion to improve streets, which was 
 by a survey and a notice by resolu- 
 tion of intention describing the work. 
 Notice was published, proposing to 
 improve the west half of East street, 
 from North street to South street. 
 At the hearing the city council de- 
 cided to improve only so much of 
 the west half of East street as lies 
 between Scott avenue and Main 
 street, being only a portion of the 
 work included in the resolution of 
 intention. The objection to the as- 
 sessment was, that no jurisdiction 
 was acquired to order only a portion 
 of the work done, and the objection 
 
 was sustained. Tlie court used the 
 following language : " The object 
 of the notice is to inform property 
 owners of the particular work pro- 
 posed to "be done. If it proposed to 
 improve a street for its whole length 
 through several blocks, the owners 
 may be perfectly content to have the 
 work done, and would have no mo- 
 tive to attend at the hearing. But 
 they might have gi'ave objections lo 
 improving the street for only a por- 
 tion of the distance. . . . We have 
 repeatedly held that proceedings by 
 which tlie citizen is to be divested of 
 his property are in inmtmn, and must 
 be strictly pursued." City of Stock- 
 ton V. Whilmore, 50 Cal. 555. (See 
 post, § 293.) In a later case in the 
 same court the facts were that, after 
 a resolution was published announc- 
 ing intention " to improve Broad- 
 way street and its crossings, from 
 the north line of Fourteenth stret-t 
 to the wharf in Water street, by ad- 
 ditional macadamizing, by re-laying 
 and enlarging gutters, and by con- 
 structing two culverts and four cross- 
 walks at each crossing of Broadway 
 street between said points, except at 
 Twelfth and Water streets," the 
 contract restricted the work "to 
 that portion of the street lying be- 
 tween the curb thereof and a point 
 two feet outside of tlie outer rail of 
 the railroad tracks thereon." Broad- 
 way street was excepted by the city 
 charter from the provisions relating 
 to other streets which authorized 
 property owners after a given period, 
 when a notice of intention was given, 
 to protest against and prevent the 
 work being done; and as to Broad- 
 
486 THE LAW OF ASSESSMENTS. 
 
 specifications, when required, are conditions precedent to the 
 making of the contract. Such acts as are prescribed by 
 law and are necessary to a letting of the contract at the 
 lowest price are mandatory ; and if omitted, the assess- 
 ment or tax will be void. They are not directory merely 
 within the meaning of a statute finding that "all the direc- 
 tions hereby given for the assessing of lands and the levy- 
 ing and collection of taxes and assessments shall be deemed 
 only directory, and no error or informality in the proceed- 
 ings of any of the officers entrusted witli the same, not 
 affecting the substantial justice of tlie tax itself, shall vitiate 
 or in any way affect the validity of the tax or assessment." * 
 Awarding the contract. Bids are usually received or 
 examined by a committee or some designated officer and 
 reported to the legislative autliority of the city. Unless 
 otherwise specially provided, it is the province of the com- 
 mon council to determine who is the lowest bidder and 
 award the contract; and wliere it is requisite to enter into 
 a contract in writing for the work, unless specially provided 
 for, the mayor or other executive officer of the municipality 
 signs on behalf of the city.* 
 
 way street the city council were distinguishable from City of Stoclc- 
 given "full power and authority to ton i-. Whitiuore only in the discre- 
 grade ... or otlierwise improve tion given to the council to cause 
 Broadway street, in such manner improvement work on Broadway 
 and upon such terms as they may street, irrespective of the wishes of 
 deem proper." Upon completion of jiroperty owners. Oaliland Paving 
 the contract an assessment was levied Company d. Rier, 52 Cal. 271-5. 
 upon the frontage, and upon non- '•Kneelaudc. Milwaukie; 18 Wis. 
 payment an action was brought to 411, 416, 41S; Wells ». Burnliam et 
 enforce a lien against the property al., 20 Wis. 115. 
 fronting the street. It was objected ^ " The bids for the work must, 
 that the contract did not include all under the general law for the incor- 
 the work described in the resolntioii poration of cities, be reported to the 
 of intention, but the court held that council, and tliat body must award 
 after liaving acquired jurisdiction by the contract upon one of tlieui, 
 giving tlie notice of intention under whicli contract must be in writing, 
 this discretion as to Broadway street, and must be filed with the proper 
 the council had full power " to order officer." City of Indianapolis o. 
 such portion of the work to he done Imbery, 17 Ind. 177. Under such 
 as in its discretion it might deem charter provision the contract can- 
 proper. Sucli power is conferred by not be awarded by a committee of 
 the 28th section, and'no reason is the common council. City of Stock- 
 assigned why the council might not ton v. Creamei-, 45 Cal. 044. (Ante, 
 exercise the power." This case is §§ 276, 282.) 
 
STEEET ASSESSMENTS. 437 
 
 Sec. 291. Completion of the Contract: Acceptance of the 
 work. — The completion of the contract or work constitu- 
 ting the improvement is a condition precedent to the levy 
 or making of a valid assessment.^ The work must be done 
 substantially according to the specifications contained in 
 the contract, if done under one, or according to the resolu- 
 tion or ordinance if done by day's work. Usually pro- 
 vision is found in the charter or ordinance under authority 
 of which the work is done, for objections on part of those 
 interested, to the acceptance of the work ; and when such 
 provision exists, it constitutes tlie only remedy or defense 
 to the assessment as to the character of the material or 
 work, except for fraud. The work is accepted by the com- 
 mon council, or officer duly authorized, in charge of that 
 department of municipal affairs. In the one case, the min- 
 utes of proceedings furnishes the evidence of acceptance ; 
 in the other, the certificate of the proper officer would be 
 pi'ima facie evidence of the fact; but where fraud is pleaded 
 as a defense to the assessment, these evidences of accept- 
 ance are liable to contradiction by positive testimony.^ 
 
 Sec. 291a. Equality and TTniformity as to Property benefited. 
 — The same rule'of equality and uniformity required in 
 levying and assessing taxes for state, county and general 
 municipal purposes is required in tlie apportioning of assess- 
 ments for local improvements to property benefited and 
 subject to be assessed therefor. This uniformity and equal- 
 ity cannot be evaded by the bidder fixing prices on some 
 items of the work high enough to cover the cost of the ' 
 others and upon which he so bids as to do the work of such 
 latter items gratis.^ 
 
 'Under the present constitution flagging gratis, and fixed prices on 
 
 of California the assessment must be cnibing and guttering at four times 
 
 levied, collected and paid into the the prices fixed by others whose 
 
 city treasury before the work can be bids were not accepted; and in ap- 
 
 contracted for. S. 19, Art. XI. (see portioning tlie assessment to the 
 
 ante, § 282.) property benefited, the board of as- 
 
 ^McVerry v. Kidwell, 63 Cal. 246. sessors made no assessment against 
 
 1 Where the work to be done con- the property opposite which there 
 
 sisted of excavation, filling and flag- was filling, excavation and flagging 
 
 ging, curbing and guttering; and the done, and opposite which no curbing 
 
 person whose bid was a,ccepted pro- and guttering was done, and assessed 
 
 posed to do the excavation, filling and all the expenses to the property 
 
438 
 
 THE LAW OF ASSESSMEXTS. 
 
 Sec. 292. Secret Agreement with part of the Landowners 
 —a fraud. — We have already seen that a tax for street im- 
 provements made at the expense of the propert}' benefited 
 must contain all the elements of uniformity and fairness 
 that is required in any other general tax. A private agree- 
 ment with a portiou of the owners of property to be bene- 
 fited and charged with a street improvement, by which they 
 will be relieved of tlieir proportionate share of the cost and 
 expense, is a fraud upon the others, and will invalidate the 
 assessment.^ 
 
 Sec. 29-3. AH Works embraced in the Resolution — one con- 
 tract only— no portion can be omitted. — All the works included 
 
 against wliich curbing and guttering 
 was done; lieldtliat the rule adopted 
 in making the assessment " was radi- 
 cally erroneous, and violated the 
 fundamental principle of equality, 
 upon which, only, can taxation in any 
 form be justified." The court, in the 
 opinion (rendered by Cnuucn, Ch. 
 J.), said: " Tlie test of whether e.\- 
 penses are incurred, does not depend 
 upon tlie manner of bidding. Prices 
 for different kinds of work are often 
 fi.ted arbitrarily, and always with a 
 view of securing the contract by 
 making the aggregate tlie lowest bid, 
 but the aggregate sum is the com- 
 pensation for the whole work. The 
 price of one kind of work may be 
 double its value, and another with- 
 out any price, but it cannot be said 
 that the latter cost nothing for the 
 purpose of securing reimbursement 
 for actual benefits. In such cases 
 the excess of prices for some of the 
 work would perform other work 
 ■where no price was specified, other- 
 wise the owners of a single block 
 might be assessed for a mile of im- 
 I^rovement made for the benefit of 
 others. The assessors in this case 
 had before them the total cost of 
 doing the whole work, together with 
 the expenses, and it was their duty 
 to assess the expense upon all the 
 property on the line of the improve- 
 
 ment benefited, according to the 
 benefit conferred upon each parcel." 
 In re Tiot. Episcopal Public School, 
 75 N. Y. 327. (See ante, § 207.) 
 
 ' Where the facts showed that the 
 petition for grading and macadam- 
 izing two blocks in San Francisco 
 was signed by three fourths of the 
 owners of the frontage; that, at the 
 time of signing the petition, one 
 half of the owners of the frontage se- 
 cretly entered into an agreement with 
 one I), to do the grading required, for 
 3i cents per square front foot in front 
 of their premises, and for 12 cents 
 per running foot for curbing, being 
 less than the contract was let for, it 
 was held to be a fraud as to the 
 others. The contract was let to said 
 D. for 49i cents per cubic yard for 
 grading, 3^ cents for macadamizing, 
 aud 12 cents for curbing. The as- 
 sessment was made out against all 
 the property at these rates, and the 
 parties making the secret agreement 
 settled for their work according to 
 their secret contract. Without the sig- 
 natures to the petition of those enter- 
 ing into this secret agi'eement, there 
 Avould not have been names enough 
 to authorize the work to be done. In 
 passing upon the effect of this secret 
 agreement with part of the land- 
 owners, the court said: "But it is 
 obviously the meaning and intent of 
 
STREET ASSESSMENTS. 
 
 439 
 
 in the resolution of intention, if not taken hj the property- 
 owners, must be embraced in one contract. The superin- 
 tendent of streets cannot sever the work and let it out 
 to separate bidders under separate contracts unless specially 
 authorized by statute.^ No part of the work described in 
 the resolution of intention can be left out of the contract. 
 To leave out a portion would be to change the proposition 
 made through the resolution without notice, and an assess- 
 ment for the work would be invalid.^ 
 
 Sec. 294. Failure to do' the work iwithin the contract time — 
 Extension of time— Re -letting'. — Where the statute provides for 
 doing the work by contract and a time is fixed for the com- 
 pletion of the work, it is held in California to be of the 
 essence of the contract that the work be completed within 
 
 the act that each owner is to be 
 protected to this extent, that he is 
 entitled to liave the work done by 
 the lowest responsible bidder. The 
 act certainly secures to him this 
 measure of protection, and he is en- 
 titled to have this protection upon a 
 fair and squaie bidding, unaffected 
 by any act or device or macliiiiation 
 of the bidder to whom tlie contract 
 may be awarded, or of any otlier 
 person, whether owner or not, act- 
 ing in collusion with such bidder. 
 ... By a collusive side agreement, 
 made with some of the owners, it 
 resulted that tlie defendants were 
 assessed for the work to the amount 
 of $4.67 per front foot, and the 
 owners who entered into the side 
 agreement, tliough assessed for a like 
 amount, were discharged on payment 
 of $1.93 per front foot." . . . "The 
 assessment lias no foundation to it. 
 It is vitiated with fraud from the 
 beginning, and mnst be held to be a 
 nullity." Brady v. Bartlett, 56 Cal. 
 .S50-367, and see Nolem v. Keese, 32 
 Cal. 486. 
 
 ^ Where the work mentioned in 
 the resolution of intention, was " the 
 grading of Clay street from Taylor 
 to Jones, and from Jones to Leaven- 
 
 worth, and the crossing of Clay and 
 Jones streets, and the advertisement 
 for bids was for the same work, but 
 bidders were notified to put in bids 
 for each block and the street cross- 
 ing separately, and the contract 
 entered into was for one block only, 
 the assessment was held to be in- 
 valid. In passing upon this ques- 
 tion the court used the following 
 language: " The resolution of inten- 
 tion and its publication confer upon 
 the board jurisdiction to proceed in 
 the prescribed mode to order the 
 proposed work to be done, and in 
 the exercise of the jurisdiction thus 
 acquired the board has no power to' 
 act upon any other or different work. 
 Tlie proposed work is a distinct and 
 entire subject matter. Tlieie is a, 
 manifest propriety in confining tlie 
 board to the specific improvement 
 mentioned in their resolution. The 
 owners of the adjoining lots may be 
 quite willing that the proposed im- 
 provement should be made, but they 
 may have well grounded objections 
 to a work either of a greater or less 
 extent." Dougherty v. Hitchcock, 
 35 Cal. 523. 
 2 See ante, § 290, n. .Sa. 
 
440 
 
 THE LAW OF ASSESS.MEXTS. 
 
 such time or within an extension thereof. A failure to com- 
 plete the work within the time required renders all further 
 or subsequent proceedings invalid ; and if the work be com- 
 pleted after the contract time or after an application and 
 refusal to extend tlie time, if the power to extend exists, 
 the assessment will be invalid and the contract cannot be 
 enforced.^ ^ 2 * The contrary doctrine is held in Missouri 
 
 1 In deciding the case below cited 
 the court does not pass upon tlie 
 right or power of the city council to 
 extend the time for the completion 
 of the work beyond the contract 
 time. " Whether under tlie charter 
 the council would liave had the 
 power to giant the extension, need 
 not be determined, for it refused to 
 do so." Mappa. v. Los Angeles, 61 
 Cal. ;J10. 
 
 - This question of extending time 
 has been passed on by the Supreme 
 Court of California, in the case 
 wliere the statute provided that the 
 superintendent of streets might 
 " extend the time so fixed from time 
 to time under the direction of the 
 board of supervisors," and the time 
 was extended two days after the con- 
 tract time expired, it was held that 
 the exteniiou did not invalidate the 
 assessment. Taylor v. Palmer, 31 
 Cal. 24B. 
 
 2 But in a later case, the power to 
 extend, after the expiration of the 
 contract time, was doubted. The 
 court said it would be virtually mak- 
 ing a new contract, and if the power 
 existed, might be used to infuse life 
 into contracts under which nothing 
 had been done for an indefinite num- 
 ber of years, "and perhaps con- 
 tracts, as well, which had formally 
 been abandoned, or from which the 
 contractor had been released." But 
 for the case of Taylor v. Palmer, the 
 court would doubtless have decided 
 against the power of extension after 
 the expiration of the contract time. 
 Tierney v. Dougherty, 53 Cal. 621. 
 Tlie facts in this case showed that 
 
 the city council had refused to ex- 
 tend the time, but without such 
 extension, after the expiration of 
 tlie time fixed in the contract, the 
 contractors completed the work. 
 The council haviiig refused to levy 
 the assessment to pay for the work, 
 a writ of mandate was applied for. 
 In refusing it, the court, per Justice 
 Koss, said: "Authority for such 
 assessment must be found in tlie 
 statute. It is a question of power, 
 and the performance of the work 
 for which payment is sought, under 
 a valid contract with the city, is one 
 of the prerequisites to its exercise." 
 Jn a later case, under the statute of 
 1871-2, the same court lield that it 
 was not witliin the power of the 
 board of superintendent of streets, 
 after the expiration of the time for 
 the completion of the work as fixed 
 by the contract, to extend the time. 
 Tlie court said: "Whatever the 
 meaning of the former statute, it is 
 Xjlain that the law of 1872 is to be 
 construed as mandatory, and as leav- 
 ing no discretion in the superinten- 
 dent at the expiration of the con- 
 tract time, or of tlie time as extend- 
 ed prior to tlie expiration of the 
 contract time." Beveridge v. Liv- 
 ingstone, 54 Cal. 57. The same 
 question again came before the Su- 
 preme Court of California, and the 
 doctrine of Tierney ». Dougherty 
 and Beveridge v. Livingstone affirm- 
 ed. This may now be regarded as 
 the settled doctrine in California. 
 Owens D. Heydenfelt, 6 Pac. Hep. 
 42:3. (Cal.) Torrens v. Townsend, 
 Pac. Rep. 423^. (Cal.) 
 
STEEET ASSESSMENTS. 
 
 441 
 
 and Indiana.* Where tlie contractor fails or refuses to enter 
 into a contract to commence and complete the work, and the 
 charter or statute in such cases authorizes a re-letting of the 
 work, the same proceedings are necessary as were required 
 to let the original contract.^ This would probably consist 
 of an order directing notice of the letting, advertising for 
 bids, and such other acts as the charter or statute prescribes, 
 culminating in awarding the signing and approval of the 
 contract. If however, part of the work were done under 
 the first contract, such portion need not be included in the 
 second notice and contract, and should be specially ex- 
 cepted theiefrom. The jurisdiction having been acquired 
 is not lost by reason of any neglect or failure of the person 
 to whom a contract is awarded.^ 
 
 Sec. 295. The Material and Work — must be that authorized 
 by Statute or Ordinance: Patent Processes — When the charac- 
 
 * An opposite ruling was made on 
 the same point in the state of Mis- 
 souri, under a contract for street 
 work. The city engineer, under au- 
 thority of an ordinance of tlie city 
 of St. Louis, let a contract for im- 
 proving a public avenue at the cost 
 of the property fronting the same. 
 A time was fixed for the completion 
 of the work, but it was completed 
 after the expiration of that time. 
 The court said: "There was obvi- 
 ously no merit in the point that the 
 work was not completed within the 
 lime limited by the contract. There 
 is nothing to show that time was of 
 the essence of the contract. For 
 prudential reasons the engineer sus- 
 pended the work for a time, and the 
 contractors assented to that suspen- 
 sion, but when it was deemed advi- 
 sable to proceed, the work was then 
 completed and received. It does not 
 appear that the defendant suffered 
 any injury by the delay." Carlin v. 
 Cavender, 56 Mo. 287. In another 
 case where the time was extended, 
 hut whether before or after the time 
 had expired does not appear, the 
 court held that the question of ex- 
 
 tension of, time was a matter be- 
 tween the city council and the con- 
 tractor, adding: "The appellees do 
 not show that they were damaged 
 thereby." City of Lafayette v. Fow- 
 ler, 34 Ind. 146. 
 
 * "From these provisions it is plain 
 that where, from a failure on the 
 part of the contractor or owners 
 (where they elect to do the work) to 
 perform the work, it becomes neces- 
 sary, or the board deems it expedi- 
 ent to re-let the contract, the same 
 course must be ijursued, which is 
 prescribed for letting in the first 
 instance; that is to say, the hoard 
 must move in the matter by passing 
 an order directing notice of the let- 
 ting to be published, inviting bids." 
 Menser v. Kisden, 36 Cal. 244. 
 
 * The original order and proceed- 
 ings are not affected by the failure 
 of the person to whom the work 
 was let, to enter into the contract, to 
 commence or complete the work. 
 The jurisdiction once acquired re- 
 mains until the work is performed. 
 Dougherty v. Foley, 32 Cal. 404; Him- 
 melnianK. 01iver,34Cal. 246; Kemper 
 B. King, 11 Mo. App. 126. (See § 311.) 
 
442 THE LA"W OF ASSESSMENTS. 
 
 ter of the work and the mode of doing it are prescribed by 
 statute or ordinance, other material or mode of doing the 
 work cannot be substituted. The provisions of the statute 
 or ordinance must be followed strictly. Where a municipal 
 corporation entered into a contract for the improvement of 
 certain public grounds consisting in part of putting an iron 
 fence around a public square, over a wooden base, the con- 
 tract being in conformity with an ordinance authorizing it 
 — and a special committee afterwards, upon examination of 
 the plans and specifications concluded that it would render 
 the work more durable to place a stone base instead of a 
 wooden one, under the fence, and on account of the damp 
 weather it would be advisable to paint the iron fence to pro- 
 tect it from rusting, and in the presence of the city attorney, 
 president of the board of aldermen and other members of 
 the board, ordered the change of the base from wood to 
 stone, and the fence painted, and the contractors acting 
 under such order, placed a stone base under the fence and 
 painted it — it was held that for these extra items, the con- 
 tractors could not recover from the city.^ Where the work 
 to be done consists in part of paving, and all the work is 
 let as one job, upon one bid and under one contract, and 
 the paving is required to be done by a patent process, the 
 right to use which belongs exclusively to the patentee and 
 those holding by assignment under him, it is contrary to 
 the spirit of the law authorizing the owners of the frontage, 
 if they so elect, to do the work at the price proposed by 
 the lowest bidder, to include all the work in one contract. 
 If the law require the work to be let to the lowest respon- 
 sible bidder, no patented material can be used in the speci- 
 fications, as there could be no competition in bidding under 
 
 I In passing upon this question, Contract made in any other manner. 
 Justice Field, in delivering the The rule is general, and applies to 
 opinion of the court, said that " the the corporate authorities of all niuni- 
 common council even could not, hy cipal bodies ; where the mode in 
 any subsequent action, give validity which their power on any given sub- 
 to a contract thus made. The mode ject can be exercised is prescribed 
 in which alone they could bind the by their charter, the mode must 
 corporation by a contract for the be followed. The mode in such 
 improvement of city property was cases constitutes the measure of the 
 prescribed by the charter, and no power." Zotman v. San Francisco, 
 validity could be given by them to a 20 Cal. 102. (See ante, § 290.) 
 
STBEET ASSESSMENTS. 
 
 443 
 
 such circumstances. Perhaps if the patented material be 
 sold in open market at uniform prices this objection would 
 not apply .^ 
 
 Sec. 296. street Improvements — manner of incurring the 
 Expense — by Contract or by day's -work — ■where discretion rests 
 —notice must not fix prices. — Where the power is conferred 
 upon the commissioners, or other constituted authority, to 
 have the work done either by contract or by day's work, 
 the discretion as to which of the modes will be adopted 
 must be exercised by the body or authority upon whom the 
 power is conferred. It cannot be delegated.' Where the 
 work is to be let to the lowest bidder, the notice for bids 
 must not fix prices on any material necessary to be used 
 under the requirements of the contract.^ When the statute 
 
 ^ " To advertise for sealed propo- 
 sals where there can be but one bid- 
 der, to open tliem in open session, to 
 examine and publicly declare them 
 and thereupon award the work to 
 the lowest responsible bidder, where 
 there is and can be but one, to no- 
 tify the owners of the frontage, if 
 they so elect, to come forward and 
 perform the work which by the para- 
 mount law of the land they are pro- 
 hibited from performing under heavy 
 responsibilities, would be to play as 
 broad a farce as was ever enacted 
 behind the footlights." Nicholson 
 Pavement Co. v. Painter, 35 Cal. 
 705; Nicholson Pavement Co. v. 
 Fay, Id. 695. In a similar case the 
 Supreme Court of Wisconsin held 
 an assessment void because "from 
 the very nature of the case competi- 
 tion could not be and was not pre- 
 served In the letting of the contract, 
 and that it was therefore beyond the 
 scope and in violation of the spirit 
 of the charter. Dean v. Charlton, 
 23 Wis. 607. It was held, however, 
 by Justice Coolby that the mere 
 fact that the material required con- 
 sisted of a patented article did not 
 invalidate an assessment, on the 
 ground that it excluded competition 
 in bidding. " But it is not, I appre- 
 
 hend, strictly correct to say that be- 
 cause the patented invention which 
 must be made use of is owned by 
 one person exclusively, therefore no 
 one else can be a bidder. Every one 
 has a right to bid, and take upon 
 himself the risk of being able to 
 procure the right to make use of the 
 invention. Certainly the showing 
 that Smith & Co. owned the right 
 to put down the Nicholson pave- 
 ment in the city of Detroit, does not 
 go far enougli to show that they 
 alone could bid on a contract for 
 that purpose," &c. Hobart v. De- 
 troit, 17 Mich. 255. Justice Camp- 
 bell dissented, on the ground tliat 
 the publication for proposals, where 
 one person held the ownership of 
 the only material required to be used 
 in doing the work, must be an empty 
 ceremony, theie being no chance for 
 competition, the patented material 
 required being "practically equiva- 
 lent to a choice of the contractor at 
 his own price." Id. 258. 
 
 1 Under the charter of the city of 
 New York it was provided that 
 whenever an improvement involved 
 an expenditure exceeding $1,000, the 
 city council should advertise for bids 
 and let a contract for doing the 
 work, unless the council, by a three- 
 
444 
 
 THE LAW OF ASSESSMENTS. 
 
 requires the work to be done by contract, after adver- 
 tising for bids, an assessment to pay for work done by 
 day's work will be invalid, and where the statute excepts 
 " works in progress at the date of the passage of this act," 
 mere survey's made in contemplation of entering upon the 
 actual performance of the work, before the passage of the 
 act, is not within the exception. The language iised in 
 connection with the power conferred upon the commissioner 
 of public works, relating to certain street work, — "in such 
 manner as by him shall be deemed necessar\' and proper," — 
 relates only to the manner in which the work itself might 
 be required to be performed, and the character of the im- 
 provement which 'might be made, and not to the system 
 or method, as between the contract and the day's work 
 system, by which the work is to be paid for.^ 
 
 fourths vote, decided to make the 
 improvement by day's work. Under 
 this cIiarLer the council, by a three- 
 fourtlis vote, directed that tlie work 
 of a certain improvement "be done 
 in such manner as the said commis- 
 sioner may deem expedient, and for 
 the best interests of tlie city and 
 property owners." It was held that 
 the law conferred upon the common 
 council the power and the duty of 
 deciding in each particular case 
 whether the expenditure for im- 
 provements involving over $1,000 
 should be done by contract or by 
 day's work; that this discretionary 
 power could not be delegated; that 
 it was the judgment of the common 
 council which the law required, and 
 not that of any officer. The same 
 principle which prohibits a legisla- 
 tive body from delegating to other 
 bodies or to individuals its powers is 
 applicable here. In re Emigrant In- 
 dustrial Savings Bank, 75 N. Y. 601. 
 This principle was applied to a case 
 where sealed proposals were adver- 
 tised for, but in the notice prices 
 were fixed on certain of the work to 
 be contracted for. The ordinance 
 provided " that supplies and work 
 
 shall be furnished by contract ; that 
 no contract shall be made until pro- 
 posals are advertised for;" that the 
 notice " shall state the quantity and 
 quality of the supplies, or the na- 
 ture and extent, as near as possible, 
 of the work required." The work 
 consisted, among other things, of 
 rock excavations, foundation plank 
 and sewer pipe, upon wliich prices 
 were fixed. In an action brought to 
 vacate the assessment made which 
 included these items, the court, after 
 reviewing the cases, concluded that 
 so far as concerned the items upon 
 which prices were fixed in the notice 
 for bids or proposals, the assessment 
 should be vacated, upon the ground 
 tliat there was no competition as to 
 the prices for doing tli'at part of the 
 work. In re Merriam, 84 N. T. 601. 
 See also Matter of Malian, 81 N. Y. 
 521 (20 Hun 301); Matter of Man- 
 hattan Ind. Inst., 82 N. Y. 743. 
 
 2 In re Weil, 83 N. Y. 548. This 
 case was approved in the case of 
 Matter of Petition of Blodgett, 91 
 N. Y. 121. At the time of the 
 amendment of the charter, requir- 
 ing all work involving over $1,000 to 
 be done by contract after advertising 
 
STREET ASSESSMENTS. 
 
 445 
 
 Sec. 297. District to be assessed must be defined; Coznniis- 
 sioners to fix boundaries of same must be disinterested. — An 
 important pnnciple of law in this connection is that the 
 district which is to be taxed with an assessment to pay for 
 a local improvement must be accurately defined. Also, 
 that the law providing for the tax must establish some rule, 
 " some definite scheme, within constitutional limits, for the 
 apportionment of the tax upon the lands on which such 
 special burden is imposed." ■■ This is necessary in order to 
 determine what property is to be assessed, and how the 
 assessments are to be apportioned according, to benefits. If 
 
 for bids, the "work in progress" 
 consisted of a survey for a sewer 
 through the "Boulevard," extend- 
 ing from Fifty-ninth to One Hun- 
 dred and Fifth-fifth streets in the 
 city of New York, a distance of 
 about five miles, and which required 
 division into three sections to obtain 
 proper drainage. This survey of 
 plan liad been accepted and ap- 
 proved. The work was done under 
 a "special contract," without ad- 
 vertising for bids and without com- 
 petition, except between a few 
 designated and selected individu- 
 als, and an action was brought to 
 vacate an assessment levied to pay 
 the expenses of one of the divisions. 
 After referring to the decision in 
 Matter of Weil, the court said the 
 purpose of the exception of "work 
 ill progress" "was to avoid the evil 
 and complication arising from an ap- 
 plication of the contract system to 
 work already copimenced and mov- 
 ing toward completion in a different 
 manner, and was descriptive of cases 
 where the city was already committed 
 to a specific mode of doing the work, 
 and could not change the system 
 without complication and confusion. 
 . . . Hej-e it is easy to see that no 
 sensible or real reason existed for 
 not applying the contract system. 
 The separate and independent work 
 of this separate and independent 
 
 drainage area, to be followed by its 
 own separate and distinct assess- 
 ment, could have been done on the 
 contract system without any diflS- 
 culty or the least collision with ex- 
 isting arrangements." In re Blodgett, 
 91 N. T. 121. 
 
 1 " It is not sufficient that the leg- 
 islative act merely declares that the 
 cost, or a part of the cost, of the 
 improvement shall be assessed upon 
 the lots drained by the sewers to be 
 built. It must as well establish 
 some rule, some definite scheme, 
 within constitutional limits for the 
 apportionment of the tax upon the 
 lands on which such special burthen 
 is imposed. An act of the legisla- 
 ture directing a tax for a local im- 
 provement to be imposed upon 
 particular lands, to be legal or ef- 
 fectual, must consist of something 
 more tlian a mere authorization to 
 assess a sum of money, the cost of a 
 local improvement, upon the desig- 
 nated property — the act must deter- 
 mine the mode of distributing the 
 burthen ; the property out of which 
 the tax is to be made must be desig- 
 nated, and some certain standard of 
 assessments established; it cannot 
 properly be left by the legislature to 
 the discretion of others to fix the 
 method." New Brunswick Eubber 
 Co. V. Commissioners (9 Yroom), 20 
 Amer. R. 382. 
 
446 THE LA"W OP ASSESSMENTS. 
 
 the district is not defined by statutory enactment, and this 
 is to be done by commissioners or persons specially ap- 
 pointed and axithorized to do so, or when the question as 
 to what lands will or will not be benefited or damaged, is 
 to be submitted to a jury, the persons appointed or selected 
 must be disinterested in the fixing of the lines of the dis- 
 trict. For reasons too apparent to require mentioning, no 
 one would be qualified to act either as a commissioner or a 
 juror who owned, or was interested in real estate within 
 the town, city, or count3% out of which the contemplated 
 district must necessarily be created, or in determining what 
 lands would be benefited or damaged.'^ 
 
 Sec. 298. street Improvements — The ■work — an Entirety 
 cannot be assessed for in detached parts. — The work em- 
 braced within a contract regularly entered into, after proper 
 and necessary preliminary proceedings, is an entiretj', and 
 no valid assessment can be made for the completion of 
 any portion thereof, less than tlie whole. Should the pros- 
 ecution of the work be stopped, from any cause, after a 
 connected portion had been completed, the owners of ad- 
 
 ■^Anactof tbe legislature of Call- not benefited. A statement in the 
 fornia was passed providing for open- bill of exceptions, that the court ap- 
 ing a public avenue in the city of pointed " three disinterested coui- 
 San Francisco, and providing for the missioners," it was held did not re- 
 appointment of three disinterested move the objection. Montgomery 
 freeholders of the city to ascertain Avenue Case, 54 Cal. 580. Under 
 what property would be benefited, the charter of the city of Grand 
 and to assess the cost of opening the Kapids, the expense of a street im- 
 avenue to the property benefited, provement was placed upon the ad- 
 The commissioners, consisting of joining property to the extent that 
 three freeholders of the city, were it was benefited, and if the benefits 
 appointed, who proceeded to lay out did not equal the entire expense and 
 the avenue, and who defined a dis- cost, the balance was put upon the 
 trict within which they decided that city at large, and it was held that 
 the property was benefited, and as- freeholders resident within the city 
 sessed the entire expense and cost were not qualified to act as jurors 
 of opening the avenue against the on a question of assessing benefits 
 property within this district, accord- to adjoining property, as " they can- 
 ing to benefits; but in an attempt to not fail to have a direct interest in 
 enforce payment of the assessment so charging the benefits aS to avoid 
 it was held that the act was imprac- reaching their own freeholds, or the 
 ticable and could not be carried into freeholds of their relatives, within 
 effect, as everyone appointed a com- the degrees that would affect their 
 missioner under it was interested in competency as jurymen." Powers' 
 deciding that his own property was Appeal, 29 Mich. 511. 
 
STREET ASSESSMENTS. 
 
 447 
 
 joining property fronting upon the completed portion can 
 not be compelled to pay an assessment therefor — nor until 
 the completion of the entire work. A different rule would 
 place it within the power of the municipality and the con- 
 tractor, to change the proposition contained in the notice of 
 intention, without the consent of the owners of property to 
 be affected by the assessment. While the completion of the . 
 entire contract might be beneficial to all the property, tlie 
 completion of less than all, might not only be of no benefit 
 to any, but an injury to all, or to the portion or some part 
 of it, in front of which the work required, may have been 
 done.^ The fact that the amount of the assessment was 
 made up and bills for the collection thereof made out be- 
 fore the work was entirely completed, but no suit is brought 
 to enforce payment until after completion of the work, 
 will not defeat a recovery.^ 
 
 Sec. 299. Assessments — must follow the provisions of the 
 Statute— name of Owner. — The same rules apply in making 
 street and other local assessments, as when assessments are 
 
 ^ The provision of the city cliarter 
 under authority of which a contract 
 was let, read, as follows: "When- 
 ever any of the above mentioned 
 work (referring to street improve- 
 ments) shall have been fully com- 
 pleted, under authority of ordinan- 
 ces, the city engineer, or other officer 
 having charge of the work, shall 
 compute the cost thereof, and assess 
 i t as a special tax against the adjoin- 
 ing property fronting upon the work 
 done, and each lot of ground shall 
 be charged in proportion to the 
 frontage thereof, with the costs of 
 constructing, reconstructing and re- 
 pairing the intersection of the next 
 adjoining street, alleys or other pub- 
 lic highways, in such manner as the 
 said officer shall deem just and equi- 
 table." The court held that each 
 lot must bear its just proportion to 
 the' whole work according to its 
 frontage. Tlie " work" includes all 
 the work in the contract. The fol- 
 lowing forcible language was used 
 
 by the learned judge in deciding the 
 case below cited : " Whilst the grad- 
 ing of a street or any considerable 
 portion thereof will be advantageous 
 to adjoining proprietors, it will fre- 
 quently happen that grading a single 
 lot or block will be greatly prejudi- 
 cial to it, and render it almost inac- 
 cessible. ... If the work can be 
 stopped in such a situation, and the 
 owner be made to pay for it, he 
 would be compelled to pay for an 
 injury instead of a benefit." City 
 V. Clemens, Jr., 49 Mo. 553. 
 
 .2 The work must be fully com- 
 pleted before the assessment is 
 made; but where the special tax bill 
 was certified before the whole of the 
 work on the street was completed, 
 and the work was all completed 
 within two weeks thereafter, and 
 had been completed before suit 
 brought to enforce the assessment, 
 it was held that the statute was sub- 
 stantially complied with, and that 
 the defendant's property had re- 
 
448 THE LAW OF ASSESSMENTS. 
 
 made for general taxable purposes. The assessment, where 
 this is required by the statute in ordinary assessments for 
 general taxation, must be made to the owner by his proper 
 name and the property charged or sought to be, must be 
 described, with the same certainty. Where the assessment 
 is made to the name of a deceased person as the owner, it 
 will be invalid and cannot be enforced.^ Where the name 
 of the owner was Theodore Leroy and tlie assessment was 
 made to F. Leroy, the assessment Wiis declared to be in- 
 valid not bavins: been made to the real owner.^ A mistake 
 made in describing the property in the complaint when 
 suing to enforce the assessment, by writing J for I in de- 
 scribing the property, does not render the judgment void ; 
 but is an error upon which the judgment might be reversed. 
 Uutil reversed the judgment is binding,^ and the property 
 assessed may be sold under the judgment. For the rule 
 applying here, see the chapter on "Name of Owner." 
 
 Sec. 300. Description of Land and Locality — Judicial 
 Notice.— It was formerly held that an assessment for street 
 assessments in San Francisco must not only describe the 
 land, but also the street whereon the work was done, and if 
 a diagram were used it must have contained such refer- 
 ences and descriptive matter as would enable a person from 
 the diagram to locate the premises ; ^ that when a diagram 
 was used in connection with the description, it must show 
 in which direction the streets run ; and that the recorded 
 diagram was the one that must govern.^ But in a later 
 case it was held that the court took judicial notice of the 
 streets within tlie city of San Francisco and of their rela- 
 tion to each other, and of the directions in which tlie}"^ run.^ 
 The change of ruling was based upon a statute, legalizing 
 certain Ordinances of the Board of Supervisors of the city 
 and county of San Francisco, among them, one adopting 
 an official map of the city and declaring the act a public 
 act. A similar view was taken in a still later case in the 
 
 ceived the benefit of the improve- ^ Jiayo b. All Loy, 32 Cal. 479. 
 ment and was chargeable with the ^ San Francisco v. Quackenbush, 
 
 amount assessed on its frontage. 53 Cal. 53. 
 Kiley v. Cranor, 51 Mo. 542. ^ jq'orton v. Courtney, Id. 692. 
 
 ,J Smith J). Davis, .30 Cal. 537; Him- s Brady v. Page, 59 Cal. 55. 
 melman v. Danos, 35 Cal. 444. 
 
STREET ASSESSMENTS. 449 
 
 same court,* and this may now be considered as settled 
 doctrine in California, so far at least as relates to the city 
 and county of San Francisco. But in the absence of a 
 statute of that or similar character, the courses of streets 
 must be given in the description contained in the assess- 
 ment or by sucli reference to the official plan or map of the 
 city as will describe the land with as much certainty as is 
 required in assessments for ordinary taxation. 
 
 Sec. 301. Excepting -work already done constituting part 
 of improvements required. — An ordinance providing for an 
 assessment for certain specified improvements winch it re- 
 quires to be made, is not invalid for the reason that it 
 excepts such portions of the work as had previously been 
 done in a manner to comply with the ordinance, but does 
 not specify the portions which are excepted. While it is 
 not within the power of the legislature to i-epeal the law 
 under authority of which a contract has been made for a 
 street improvement, it may change the law and provide for 
 doing the same work in a different manner, and require 
 • the work done to be paid for but credited, pro tanto, to the 
 cost of the entire work.^ 
 
 Sec. 302. Cost of Abstracts of Title, advertising and engi- 
 neering—Attorneys' fees. — It has already been shovt^n that 
 the cost of engineering, even when the officer performing 
 the services was under a salary from the city, and advertis- 
 ing, were proper items of expense to be included in the 
 cost of a local improvement.^ The cost of abstracts of 
 title to the property to be charged is also a proper item 
 
 ^ Dyer v. Parrott, 60 Cal. 5.51. the money incurred in tlie further 
 ^ Where proceedings had been work, should be assessed and col- 
 taken to make a local improvement lected from the property benefited, 
 at the expense of the property bener It was held to be a valid exercise of 
 filed, and after a portion of the legislative power. In re Sackett and 
 work was done and money had been others, 74 !N^. Y. 98. (See post, 
 paid on account thereof, the law §311.) 
 
 under which the proceedings were ' Burk o. Altschul, 6 Pac. Eep. 
 
 taken was repealed and another act 393. (Cal.); In re Lowden, 89 N. Y. 
 
 passed in wliich it was provided that 553; In re Merriam, 84 N. Y. 590; 
 
 the same improvement work should Cuming v. Grand Rapids, 46 Mich, 
 
 be done, but in a different manner, 159; Bertram v. Detroit, 41 Id. 118; 
 
 and all the money which had been see post, § 314, for items cliargeable 
 
 paid on the work already done, with as surveyor's fees, also post, § 820. 
 29 
 
450 THE LAV OF ASSESSMENTS. 
 
 of the expense, in addition to the other items named.^ It 
 has been ruled that where a swamp land district had in- 
 cluded an item for attorneys' fees incurred in litigation, in an 
 additional or subsequent assessment, that it was not error.^ 
 There is no reason why all the items named should not be 
 included as part of the expenses of the improvement, to be 
 included in the assessment, when necessarily incurred. If 
 the statute requires the assessment to be made to the 
 owner, then an abstract of the title as it appears upon the 
 public records, and an opinion of an attorney would be 
 necessary to ascertain who are the owners; but if the assess- 
 ment may be made to unknown owners, then these items 
 of expense would not be necessarily incurred. 
 
 Sec. 303. — -when limited to half the value of the property — 
 for each improvement. — In the city of New York the estimate 
 for improvements which are to be paid for by the owners of 
 the property benefited cannot exceed half the value of the 
 property as showu by the last previous assessment for gen- 
 eral taxes, of the assessors of the ward in which they lie. 
 It becomes important under this limitation upon the power 
 to make assessments, to be able to determine whether an 
 improvement consisting of a number of different items of 
 work, is one, or whether it constitutes two or more separate 
 improvements. If it be held to be two separate improve- 
 ments, the assessment for each may equal but cannot exceed 
 half the value of the land, ascertained in the manner before 
 stated, and it would be no objection under this statutory 
 limitation that the aggregate of the two assessments equaled 
 the value of the land ; but if the work be held to consti- 
 tute but one improvement, then the assessment to be valid, 
 must not exceed as before stated half the value of the land 
 to be charged.^ When proceedings are bought to vacate an 
 
 2 St. Paul I'. Mullen, 27 Minu. 80. work upon a street, In necessity and 
 
 ^Reclamation District No. 108 ». effect,. as to be a different and a sep- 
 
 Hagar, 4 Pac. Rep. 946-7. (Cal.) arate improvement from grading, 
 
 ^ In re Walter. Tlie court used regulating, setting of curb and gut- 
 
 tbe following language to define the ter stones, and flagging, or if the 
 
 distinction between a single im- adoption of a peculiar kind of pave- 
 
 provement and two separate im- raent is so, then there may be said 
 
 provements: " If the paving of a to have been two classes of improve- 
 
 street is so disconnected from other ments on this street. If they are 
 
STREET ASSESSMENTS. 
 
 451 
 
 assessment on the ground that the amount of the assess- 
 ment exceeds half of the value of the land, the burden of 
 proof is upon the city or party desiring to sustain the assess- 
 ment.2 Where the same person is the owner of an entire 
 block made up of a large number of separate lots, and there 
 has been no other assessed valuation than the block as an 
 entirety, under the limitation before stated no valid assess- 
 ment against the property of any amount can be made. The 
 limitation applies to each lot separately notwithstanding they 
 are owned by the same person.** In such case the ruling in 
 the case of the Second Avenue M. E. Church, (66 N. Y. 
 305,) where no assessment valuation was shown ever to 
 have been made, applies. When the power of assessment of 
 abutting property for local improvements is confined to the 
 
 property within its jurisdiction, by 
 taxation or proceeding in the nature 
 thereof, must produce express power 
 therefor in legislative enacCmeiit, 
 and must show that in its attempt 
 to tax, it has strictly followed all 
 the legal requirements. It seems, 
 then, the substantial affirmative is on 
 the city. ... It may assess up to 
 one half the value placed upon the 
 property by certain of its officers. 
 To justify its assessment in this 
 case, it must show that it has kept 
 within that limit; that it has not 
 assessed more than one half the 
 value." In this case no assessment 
 had been made on the property, it 
 being by law exempt from taxation. 
 There was therefore no means of 
 showing that the assessment was 
 valid. See also First Presbyterian 
 Church ». City of Fort Wayne, 36 
 Ind. 338; (s. c, 30 Amer. Rep. 41.) 
 
 ^ But it has been decided by the 
 courts of New York that it is not 
 necessary that the assessed valuation 
 should have been made within any 
 given period; and, an assessed valu- 
 ation made in 1840 was held valid to 
 support an assessment for street im- 
 provements made in 1875. In re St. 
 Joseph's Asylum, 69 N. Y. 353; In 
 re Cram, 69 N. Y. 464. 
 
 not so disconnected, then it cannot 
 be said there was that lapse of time 
 between the ordering of them, as to 
 make them distinct; one resolution 
 of the common council was in 1871, 
 the other two were in 1872, proceed- 
 ing through the two boards of al- 
 dermen at the same time, from 
 April 8th, 1872, to May 22d, 1872, 
 while there is but one resolu- 
 tion of the department of pub- 
 lic parks, by which the whole 
 work, paving as well as the rest, was 
 directed; and the whole work was 
 done under the direction of that de- 
 partment, and its successor, the de- 
 partment of public works, so that 
 that resolution seems to be the ac- 
 knowledged source of authority for 
 the work. That it was not all done 
 at once, does not necessarily deter- 
 mine that it was of two distinct 
 improvements." In further passing 
 on the question the court held that 
 they were unable to conclude from 
 the record that there were two sepa- 
 rate improvements instead of but 
 one. In re Walter, 75 N. Y. 359. 
 
 2 On this point the court in Matter 
 of Second Av. M. E. Church, (66 
 N. Y. 398), used the following lan- 
 guage: " It is a rule that the muni- 
 cipality which seeks to affect the 
 
452 THE LAW OF ASSESSMENTS. 
 
 lots fronting thereon, and part of the frontage consists of 
 lands not subdivided into lots — such unlotted lands are 
 subject to the assessment only to the usual depths of lots 
 abutting the improvement; and where there is statutory- 
 authority for ascertaining the illegal portions of a tax and 
 assessment collection, the illegal portion only may be en- 
 joined.* To make a statute perfect, confining assessments 
 to half value, provision for ascertaining values where no 
 assessments had been previously made, is necessarj'. 
 
 Sec. 304. Assessment— levied after work done— by author- 
 ity of subsequent legislation. — It has already been stated in 
 the chapter on defective assessments and curative acts that 
 it is not within the power of the legislature by after-legisla- 
 tion to cure or make valid a void assessment. Another 
 question follows upon.the heels of this — can the legislature 
 authorize an assessment to pay for an improvement after 
 the work is done and after an assessment therefor has been 
 adjudged to be illegal and void? This question is con- 
 sidered in the chapter on lie-assessments. It will be seen 
 that the decisions have been, to some extent at least con- 
 flicting; but the weiglit of authoritj' is in the affirmative. 
 There seems to be no good reason why an assessment to pay 
 for an improvement which the law authdrized, and may have 
 
 *The plaintiff was the owner of liis petition with a view of enjoining 
 twenty acres of unlotted land which the entire assessment in case the 
 fronted 1,200 feet upon the street entire proceedings and assessment 
 improved, and extended back upon were held to be void, or, in the alter- 
 an aveiage 800 feet. An assessment native, of enjoining the collection 
 of $3.25 on each front foot was as- of the excess only in case the assess- 
 sessed as a special tax, on the abut- ment was found to be merely irregu- 
 tiug lots and lands to pay tlie expense lar and defective, and offers to pay 
 of the street improvement. It seems the amount justly due, . . . we can 
 this assessment was levied upon the see no reason why tlie protection of 
 entire tract, and not on the frontage the statutory limitations or restric- 
 to the usual depth of lots. The tions cannot be extended to the 
 court held the assessment void , as to plaintiff, and the rights of the parties 
 that portion of the land beyond the be ascertained, determined and en- 
 usual depth of lots, and valid as to forced in this case, under the provi- 
 the other portion, and added: " Hav- sions of section 550, the same as if 
 iiig found that the assessment is not the parties were reversed, and the 
 void, but merely irregular and de- city had brought an action against 
 fective, the case, we think, Is within the plaintiff, under section 549, to 
 the curative provisions of section recover the assessment." Griswold 
 550, and the plaintiff having framed d; Pelton, 34 Ohio St. 482, 491. 
 
STREET ASSESSMENTS. 
 
 453 
 
 required to be made at the cost of the property benefited, 
 should not be made as well after the work has been done, 
 as when preliminary steps have been taken to charge the 
 property benefited before the work was commenced. If the 
 rights of the parties interested, to a hearing for objections 
 to the work and to the assessment are preserved, there is 
 practically no difference. '^^ 
 
 Sec. 305. Re-assessment — ^by Statutory Authority. — Under 
 the city charter of St. Paul, a re-assessment is autliorized 
 "where, as to such lot, judgment on tlie original assessment 
 
 ^ A case involving in some mea- 
 sure the above question arose in the 
 courts of New York. The city of 
 Buffalo ordered a street to be graded 
 and paved at the expense of the 
 property owners. The work was 
 done, and an assessment to pay the 
 same levied upon the property bene- 
 fited, but only $8,700 thereof col- 
 lected, when the assessment was 
 declared void, by reason of the 
 failure of the assessors to append 
 their certificate to the assessment, 
 and the city, under authority of its 
 cliarter, paid the balance. An act 
 of the legislature was thereafter 
 passed, which, after reciting the 
 facts of the work having been done, 
 the invalidity of the assessment and 
 tliat the owners of the real estate 
 benefited ought to pay the expense 
 of the work, authorized and empow- 
 ered the common council to re-assess 
 the cost of the work upon the prop- 
 erty benefited; whereupon, under 
 authority of the common council 
 the assessors made a re-assessment 
 of the cost of the improvement upon 
 the property benefited, and suit was 
 brought to have the re-assessment 
 declared void and to enjoin its col- 
 lection. Tlie court held that the 
 passing of the act came within the 
 province and power of taxation of 
 tlie legislature and sustained the act. 
 Upon the question as to the time 
 when the act was passed, being after 
 the work was done, the court said: 
 
 " Upon the question of natural as 
 well as legal justice and right, the 
 circumstance that the improvements 
 had been paid for by the city, and 
 that the ijlaintiff was in the enjoy- 
 ment of them, before the assessment 
 of this tax, does not, as I can see, 
 affect the apportionment with injus- 
 tice and wrong, any more than if it 
 had been made in anticipation of 
 the improvements. ... It is simply 
 an exercise of the taxing power in a 
 mode, as we have seen, within the 
 constitutional scope of legislative 
 authority, induced, it is true, by the 
 failui'e of the former proceedings, 
 but in no other sense retrospective, 
 and in no objectional sense, retro- 
 active. It does not reach back 
 and attempt to legalize the tax which 
 was illegally imposed, and by the 
 court declared void, but does pre- 
 cisely what might have been done if 
 there had been no previous attempt 
 on the part of the city to collect the 
 expense of the improvements out of 
 the property benefited." Howell v. 
 Buffalo, 37 N. Y. 267-9. This legis- 
 lation, it will be seen, is in har- 
 mony with a provision of the pres- 
 ent cohstitution of California, in 
 reference to street assessments, 
 which requires the assessment to be 
 levied and collected and the money 
 paid into the city treasury befoi'e 
 the contract for the work can be let. 
 (Sec. 19, Art. XI. Con. Cal.) 
 2 That case (Howell v. Buffalo) is 
 
454: THE LAW OP ASSESSMENTS. 
 
 is denied, or the assessment set aside or declared void by 
 reason of any defect or irregularity affecting the validity of 
 the final order of the council ordering the improvement;" 
 another board of public works is directed to make such 
 re-assessment when the original assessment has been set 
 aside or rendered void by reason of any defect or irregu- 
 larity affecting its validity, occurring subsequent to the final 
 order without any action emanating from the common coun- 
 cil. An amendment to these charter provisions authorized a 
 re-assessment when judgment is denied on the original assess- 
 ment or when the assessment is set aside or declared void 
 "/or any cause whatever." Another clause of the amend- 
 ment provided that " no error or omission or irregularity, 
 whether jurisdictional or otherwise, shall prevent a re-assess- 
 ment to the extent of the benefits conferred by such im- 
 provement when ordered by the council." This act was 
 held to be valid and authorized a re-assessment under any 
 and all circumstances to the extent of benefits.^ This last 
 act seems to be the perfection of legislation ; and if carried 
 into the legislation of all the states and as well to general 
 taxation, would work nothing more than justice in many 
 cases where, through omissions of ignorant and careless 
 officials, contractors and laborers are made to improve the 
 property of others without being able to enforce the paynjent 
 therefor; and owing to which many are enabled to escape 
 payment of their just proportion of the public burdens. 
 
 Sec. 307. Mode of making the Assessment. — The assess- 
 ment for street, or other local improvements, made at the 
 expense of the adjacent property, is apportioned according 
 to an equitable and uniform rule, to the property benefited. 
 Where the charter or statute requires the assessment to be 
 made " upon principles of equity, and according to the 
 damage or the benefit which the owners thereof may desire 
 therefrom," the return of the assessing officer must show 
 that damages, as well as benefits, were estimated in making 
 
 contrary to the case of District No. sary to do for reclamation." But it 
 
 110 V. Feck (60 Cal. 406), wliere the is in harmony witli the doctrine of 
 
 court held that "work which had re-assessments. (See post, § 305.) 
 been previously done should not ^ St. Paul j). Mullen, 27 Minn. 79 ; 
 
 have been included in an estimate of (ante, §§ 197, 198, 199.) 
 the cost of work which it was neces- 
 
STREET ASSESSMENTS. 
 
 455 
 
 the assessment.! In most cases the rule of measurement is 
 adopted, and the apportionment is made according to the 
 front foot, by the acre or other subdivision, in proportion 
 to benefits; but in some kinds of improvement the assess- 
 
 ^Where the charter or statute re- 
 quired the assessment to be made 
 '• upon principles of equity, and ac- 
 cording to the damage or the benefit 
 which the owners thereof may de- 
 rive" from tlie. improvement, a re- 
 turn of assessors was, " That in 
 making said assessment we made 
 the same upon principles of equity, 
 and according to the benefits whicli 
 the owners of the several lots of 
 ground derived tlierefrom," the as- 
 sessment was held to be invalid for 
 the reason that it did not appear 
 that the assessors took into their es- 
 timate the damages occasioned by 
 the improvement. State — Town of 
 Bergen «. Van Horn, 32 N. J. L. 497. 
 See also to the same effect, State — 
 Spier V. City of Passaic, 38 K. J. E. 
 169. In a later case, in the same 
 state, the commissioners made re- 
 port that they had assessed the 
 whole expense "among the owners 
 and occupants of all houses and lots 
 intended to be benefited by the alter- 
 ing and widening of Market street 
 aforesaid, in proportion, as nearly as 
 may be, to the advantage each is 
 deemed to acquire thereby, except 
 such portion of such damages and 
 expenses which we have deemed it 
 to be equitable and just to assess, 
 and which we have assessed upon 
 the New Jersey Railroad and Trans- 
 portation Company, a corporation 
 owning and using the said railroad 
 track passing along Market street," 
 &c. The assessment against the 
 railroad corporation was made un- 
 der authority of a statute providing 
 " that whenever any street, or part 
 of a street, in the city of Newark, 
 occupied or used by the track of any 
 railroad company, shall require to be 
 
 altered or widened for the conve- 
 nience of public travel, and the pro- 
 ceedings for altering or widening 
 the same shall have been taken un- 
 der the act to which this is a supple- 
 ment, it shall be lawful for the 
 commissioners whose duty it may 
 be to make a just and equitable as- 
 sessment of the whole amount of 
 the damages and expenses of such 
 altering or widening among the 
 owners and occupants of all the 
 houses and lots to be benefited 
 thereby, to assess such portion of 
 said damages and expenses upon the 
 corporation or company owning or . 
 using said railroad track as to them 
 shall seem equitable and just," &c. 
 This assessment was held to be ille- 
 gal upon the ground that it was not 
 made upon the theory of benefits. 
 " If the assessment made upon the 
 railroad company is to be regarded 
 as an exercise of the power of taxa- 
 tion without reference to special 
 benefit conferred upon the company, 
 then clearly the assessment is ille- 
 gal." State— N. J. E. Trans. Co. f. 
 The Mayor of Newark, 3 Duch. 190- 
 195. This same doctrine was re- 
 peated in a recent case in the same 
 court, where an assessment had been 
 levied without any authority of law. 
 The court used the following lan- 
 guage: "The creation of a valid 
 assessment for public improvements 
 In this state requires the determina- 
 tion of the amount of the special 
 benefit received froni the improve- 
 ment by each parcel of assessable 
 land, and a distribution of the ex- 
 pense among these parcels in pro- 
 portion to and not in excess of their 
 respective benefits. Such a proceed- 
 ing involves the exercise of judicial 
 
456 
 
 THE LAW OF ASSESSMENTS. 
 
 nient is made upon a cash valuation.^ The mode of as- 
 sessment is the subject of legislation, and is to be found in 
 the municipal or other authority for making the apportion- 
 ment. Under the organic act of Washington Territory the 
 word "assessment" was held to have been used in its com- 
 mon and general sense, and applicable as well to local and 
 
 functions by some authorized body 
 before which the land owner shall 
 have had legal notice to appear." 
 Peckbara v. Newark, 4?, N. J. L. 578. 
 2 The charter of the city of Port- 
 laud, Or., contained this provision: 
 " The council shall have power to 
 lay down all necessary sewers and 
 drains, and cause the same to be as- 
 sessed on the property directly bene- 
 fited by such drain or sewer, but tlie 
 mode of apportioniTigestimated costs 
 of improvements of streets prescribed 
 in sections 97 and 98 of chapter 7 of 
 this act shall not apply to the con- 
 struction of sewers and drains; and 
 when the council shall direct the 
 same to be assessed on the property 
 directly to be benefited, such ex- 
 pense shall in eveiy other respect 
 be assessed and collected in the 
 same manner as is provided in case 
 of street improvements; provided 
 that the council may at its discretion 
 appoint three disinterested persons 
 to estimate and determine the pro- 
 portionate share of the cost of such 
 sewer or drain to be assessed to the 
 several owners of the property bene- 
 fited thereby." Section 97 referred 
 to provided that each lot, or part 
 thereof, in front of or abutting upon 
 a street improvement should be lia- 
 ble for the cost of making half of 
 the improvement in front of it, and 
 for a proportionate share of the im- 
 provement of the intersections of 
 two streets bounding the block; and 
 98 provided that for the cost of the 
 intei-sections the lots, or parts 
 thereof, should be assessed '' in 
 proportion to the cash value of such 
 lots, or parts thereof, irrespective of 
 
 improvements thereon." Under this 
 authority the common council gave 
 notice by resolution of its intention 
 to construct a sower within specified 
 points and of specified dimensions, 
 " the expense to he assessed upon 
 the propeity benefited." The notice 
 included the following : " It is hereby 
 imderstood that the property bene- 
 fited will include all lots, or parts of 
 lots, lying within 100 feet of Yam- 
 hill street, on either side thereof, 
 and between Front street and the 
 termination thereof." After the 
 sewer was constructed, three com- 
 missioners were appointed "to as- 
 sess the cost of the construction of 
 the sewer, as provided by ordinance 
 2246, to the several lots, and parts 
 of lots, benefited thereby." These 
 commissi cmers found the probable 
 cost of the sewer to be $5,999..'54; 
 that the property benefited consisted 
 of all lots lying within 100 feet of 
 Yandiill street, and between the 
 Willamette river and a point WO 
 feet west of the west line of Tenth 
 street, and apportioned the cost "ac- 
 cording to the proportion which the 
 cash value of the lots bore to each 
 other, making allowance for the dis- 
 tance of the lots from the sewer." 
 In a suit to enjoin the collection of 
 an assessment thus made, it was ob- 
 jected that the street belonging to 
 the city ought to have been assessed 
 with a proportionate amount of the. 
 cost of the sewer; that the powers 
 of apportioning the cost could only 
 be exercised by the common coun- 
 cil; that the cost was not appor- 
 tioned according to benefits directly 
 accruing; that the commissioners 
 
STREET ASSESSMENTS. 457 
 
 special taxes for street improvements made at tlie cost of 
 the propertj'- benefited, as to purposes of general taxation, 
 and the cash valuation rule was applied accordingly.^ 
 
 The rule in Minnesota. In making the assessment, the 
 cost of the improvement is to be assessed upon the real 
 property specially benefited thereby, as nearly as may be, 
 to sucli benefits : " and in estimating the benefits to any 
 particular tract of land, consideration should be had of the 
 nature of the owner's interest therein, the form and posi-. 
 tion of the land, the qualified rights of the owner in refer- 
 ence to its enjoyment, and any other circumstances which 
 render the proposed improvement more or less beneficial to 
 him."* If, instead of following the rule of benefits pre- 
 scribed by law, an arbitrary rule, based upon street frontage, 
 without regard to benefits, be adopted, the assessmept will 
 be invalid.* 
 
 Sec. 308. Assessments — whether to be local or general — 
 •when discretionary — Discretion not reviewable by the courts. — 
 It becomes a question sometimes whether a contemplated 
 improvement within a municipal corporation partaking in 
 nearly equal proportions of a benefit to the public and a 
 special benefit to the property of a local district, ought to 
 be a public charge, or be made at the expense of the prop- 
 erty specially benefited.^ When such a state of facts exist, 
 it becomes a matter of discretion in the governing power 
 
 adopted as the mode of apportioning ent rule " here referred to is in tli!e 
 the proportion wliich the cash value following language, already quoted : 
 of the lots bore to each other, mak- " Provided, that the council may in 
 ing allowance for their distance from its discretion appoint three disinler- 
 the sewer ; that the lots were of un- ested persons to estimate the pro- 
 equal value in proportion to their portionate share of the cost of such 
 area, &c. ; but the court overruled sewer or drain to the several owners 
 all these objections, holding that the of the property benefited thereby;" 
 provisions of sections 97 and 98 were whereas in the assessment of a street 
 made to apply to the construction of improvement the cost is apportioned 
 sewers only so far as to appoint three to the adjoining lots in proportion to 
 disinterested persons to apportion frontage. 
 
 the expense to the lots, and parts of ' Seattle u. Yesler, 1 TV. T. 577. 
 
 lots, benefited, and- that a different This case is in conflict with modern 
 
 rule was intended to be applied in authority on this point, 
 
 the mode of apportioning the ex- * State v. District Court of Eamsey 
 
 pense or cost. Strowbridge v. City Co., 29 Minn. 65. 
 
 of Portland, 8 Or. 79. The "differ- ^A provision of the constitution 
 
458 
 
 THE LA"\V OF ASSESSMEXTS. 
 
 of the municipalit}'^ to determine whether the property ben- 
 efited shall bear the expense or whether the cost of the 
 improvement shall be made a public charge, and this discre- 
 tion when exercised is not the subject of review by the 
 courts.^ 
 
 Sec. 309. Exercise of the discretion; presumption of ben- 
 efits. — Where the question whether the improvements con- 
 templated shall be made at the expense of the property to 
 be benefited, or be paid for by general taxation, is delegated 
 for determination to the discretion of municipal authority, 
 and this discretion has been exercised by directing the ex- 
 pense to be borne by the property benefited, no other for- 
 mal finding than such action is necessary to establish the 
 fact that the property to be assessed will be benefited to an 
 amount equal to the expense of the contemplated improve- 
 
 of Illinois was framed In these 
 words: " The General Assembly may 
 vest the corporate authorities of 
 cities, towns and villages with 
 power to make local improve- 
 ments, by special assessment or 
 by special taxation of contiguous 
 property or otlierwise." Under this 
 authority the legislature passed an 
 act, one section of which reads in 
 these words: "That the corporate 
 authorities of cities and villages are 
 hereby vested with power to make 
 local improvements, by special as- 
 sessment or by special taxation, or 
 both, of contiguous property, or by 
 special or general taxation, or other- 
 wise, as they shall by ordinance pre- 
 scribe." Under autliority of this 
 statute the city of Chicago provided 
 for opening and extending a street, 
 and provided by ordinance the mode 
 for paying the expense to be incur- 
 red thereby as follows: " That said 
 improvement shall be made and the 
 cost thereof paid by special assess- 
 ment, to be levied upon the property 
 benefited thereby, to the amount that 
 the same be legally assessed there- 
 for, and the remainder of such cost 
 to be paid by general taxation." It 
 
 was objected to this statute, that it 
 conflicted with the constitution so 
 far as it authorized the making of 
 a local improvement, otherwise than 
 wholly at the expense of the con- 
 tiguous property ; but the court held 
 that when the whole article in which 
 the section is contained, is exam- 
 ined, it sufficiently appears to have 
 been the intention of the framers of 
 the constitution to authorize special 
 assessments for the purposes stated' 
 to be made at the expense of the 
 property benefited, whether " con- 
 tiguous" or not. Guild, Jr. v. City 
 of Chicago, 82 111. 477. 
 
 ^ In another case in tlie same court, 
 and growing out of the same im- 
 provement, among the many ques- 
 tions of law raised and decided on 
 this point, the court sustain the rul- 
 ing previously referred to, and add 
 that by the act of the legislature, 
 cited, "the full power of determin- 
 ing in what mode the improvement 
 shall be made, is vested in the corpo- 
 rate authorities," and that their ac- 
 tion in this respect cannot be re- 
 viewed. Pagan v. City of Chicago, 
 84 111. 231; see also Brewster v. 
 Davenport, 51 Iowa 427. 
 
STEEET ASSESSMENTS. 459 
 
 iTicnt or to some portion thereof.' The exercise, by a mu- 
 nicipal corporation, of the authority when delegated, to con- 
 demn property necessary to be taken for an improvement, 
 and to assess, through a tribunal of its own appointment, 
 damages therefor upon the propertj-- specially benefited 
 thereby, "is a distinct legislative declaration of tlie local 
 character of the improvement, and that the lands in the 
 locality thus specially affected by it, may be sufficiently 
 enhanced in value to compensate for the burden of sustain- 
 ing the whole expense."^ But an assessment made upon a 
 basis of frontage merely and without regard to benefit or 
 proportionate benefit, may be impeached, notwithstanding 
 the record of the proceedings be regular — in an action or 
 proceeding to enforce the assessment.^ In the absence, 
 however, of fraud, a determination that certain property is 
 benefited, is conclusive.* 
 
 Sec. 310. street Improvements — ■whether a Personal or a 
 Property Liability or both. — A street assessment like a tax 
 upon i-eal estate is always made a lien or charge against the 
 adjoining property when made at the expense of the prop- 
 erty benefited. It is sometimes made a charge only against 
 the property benefited ; but in some states these local 
 assessments are made a personal liability as well as a lien 
 
 ^ Cook V. Slocum, 27 Minn. 513. ed in the Court of Errors, an as- 
 
 " Id. 513-514. sessinent for an improvement of this 
 
 3 State. B. District Court of Ram- character cannot be sustained when 
 
 sey County, 29 Minn. 65, 66 ; Strow- made according to benefits, and limi- 
 
 bridge v. City of Portland, 8 Or. 84. ted only by political territorial divi- 
 
 * State V. District Court of Eam- sions, if the legislature choose to 
 
 sey County, 29 Minn. 65. In New make any such limitation. The 
 
 Jersey and some other states it is rule heretofore prevailing in this 
 
 held that a statute providing for the court, that such improvements are 
 
 assessment of the entire cost of a presumed to benefit land equal to 
 
 street Improvement upon the front- the burthen imposed by the legisla- 
 
 age according' to benefits, is uncon- ture, until the contrary appears, can 
 
 stitutional so far as an assessment is now no longer, since that decision, 
 
 made for a. sum greater than the be maintained. ... In the case be- 
 
 actual benefits. "The act requires fore us the legislature has fixed the 
 
 the lands fronting on the improve- limit of frontage, and provided that 
 
 ment " to bear the whole burthen of the whole expense be assessed 
 
 the cost, and the mode of its distri- there." State — Fruse v. Woodruff, 
 
 buti6n merely, is according to ben- 37 N. J. L. 138; (see ante, n. 5, 
 
 efits. Since the case of the State v. § 307. ) 
 The City (Mayor) of Newark, decid- 
 
460 THE LAW OF ASSESSjmNTS. 
 
 upon the property benefited. In an act relating specially 
 to the city of New York, passed in 1813, embodying exist- 
 ing provisions relative to the improvement of streets, the 
 remedies given for the collection of assessments for " paving 
 and regulating the opening of streets," are contained in the 
 following provisions: First, the assessment is declared a 
 lien upon the lots benefited; second, it may be enforced 
 by distress and sale of the goods of the owners and occu- 
 pants, who are made liable for its payment, and in case of 
 opening streets an action of debt or assumpsit can be 
 maintained for its recovery.^ In a recent case in the Court 
 of Appeals of New York, in deciding a local assessment 
 void for want of notice of any kind to the parties assessed, 
 the learned judge employed the following language — "So 
 an assessment may generally be enforced not only against 
 the real estate upon which it is a lien, but, as in this case, 
 against the personal property of the owner also, and by it 
 he may just as much be deprived of his property'-, and in the 
 same sense, as the judgment debtor is deprived of his by the 
 judgment"^ — from which it is apparent that in the city, if 
 not the state of New York, this rule of personal liability 
 
 ' Mayor of New York v. Colgate, of tlie same section as seems to aii- 
 12 N. T. 143. But it is very evident thonze the seizure by warrant issued 
 tliat no personal liability for such by the clerk, of the personal prop- 
 assessments could be enforced erty of the owners, in satisfaction of 
 against a non-resident proprietor for such special tax, is without constl- 
 want of jurisdiction over the person, tutional authority and void." TIic 
 This view is presented in the ease of court took the broad ground that 
 Craw v. Village of Tolono, 96 111. such special taxes cannot be 
 255, where an attempt had been made a personal liability under tlie 
 made to enforce a personal liability constitution of Illinois, which is 
 against a non-resident land owner quoted, and is as follows: "TheGen- 
 f or an assessment for the cost of a eral Assembly may vest the corpo- 
 sidewalk. The assessment was made rate authorities of cities, towns and 
 under authority of a statute of lUi- villages with power to make local 
 nois, entitled " An act to provide improvements ... by special taxa- 
 additional means for the construe- tion of contiguous property or other- 
 tion of sidewalks in cities, towns wise.'' The decision includes resi- 
 and villages," which act authorized dent as well as non-resident owners, 
 the cost of sidewalks, to be recov- so far as the personal liability of 
 ered of the owners thereof, by an such assessments is concerned, hold- 
 action at law. Tlie act was held by ing that all such liabilities are to be 
 the court to be "unconstitutional enforced as proceedings ira rem. 
 and inoperative, and that so much ^ Stuart n. Palmer, 74 N; Y. 195. 
 
STREET ASSESSMENTS. 461 
 
 still continues except as to imprisonment, which would 
 doubtless be controlled by the law abolishing imprisonment 
 for debt. 
 
 In the charter of the city and county of San Francisco, 
 as commonly called the consolidation act, consolidating the 
 government of both the city and county into one munici- 
 pality, provision was made for the enforcement of assess- 
 ments for street and otlier improvements, which were to be 
 made at the cost of the property benefited, by a sale of the 
 property charged ; and in case of a deficiency, for docketing 
 the judgment and enforcing payment of the balance as a 
 personal judgment against the owner.^ This question — the 
 personal liability of tlie owner for assessments for street and 
 other local improvements made at the cost of the adjoining 
 property — came before the Supreme Court, of California at 
 an early period (1866), when by a majority opinion it was 
 lield that the statute making the liability personal was 
 unconstitutional ; that the word "assessment" was employed 
 in the constitution "to represent those local burdens im- 
 posed by municipal corporations upon property bordering 
 upon ah improved street so near to it as to be benefited by 
 the improvement, for the purpose of paying the cost of the 
 improvement, and laid witli reference to tlie benefit which 
 such property is supposed to receive from the expenditure 
 of the money." This definition the court saj' was framed 
 ex vi termini, to " describe the power and define with pre- 
 cision its limits." The niiijority of the court support their 
 opinion by citing the distinction made in tlie constitution 
 between a tax and an assessment, and conclude that it was 
 not the intention of tlie framers of the constitution to con- 
 fer upon municipal corporations the power of creating a 
 personal liability, unlimited in extent, for this character of 
 taxation. "To say that the owner of land bordering upon 
 an improved street can be made personally liable for the 
 peiyment of the improvement, is equivalent to saying that 
 liis entire estate, real, personal and mixed, whetlier border- 
 ing upon the street or remote from it, whether within 
 the corporate limits or without, whether benefited or not, 
 shall be held responsible for the tax, which in turn is 
 s Cal. Stat., 1862, p. 399, § 13, p. 400, § 17. , 
 
462 THE LAW OF ASSESSMENTS. 
 
 equivalent to saying that his entire estate may be taxed for 
 the improvement, in direct contradiction of the very terms 
 of the power. . . . Under it the power of ' assessment ' 
 becomes the power of ' taxation ' in contradistinction, and 
 of course subjected to all the restrictions placed by the con- 
 stitution upon the exercise of the lalter, which is equivalent 
 to saying that the power of 'assessment' as contradis- 
 tinguished from that of ' taxation ' has no existence under 
 the constitution." The court further add — " To avoid any 
 misconception of our meaning we add that the power of tax- 
 ation, when exercised either by the legislature immediately 
 or mediately through the intervention of a municipal cor- 
 poration, must be exercised under and within the limitations 
 of the constitution — that is to say, it must be exercised 
 upon the ad valorem principle, and so as to secure equality 
 and uniformity, except when exercised through a municipal 
 corporation, for the purpose of improving its streets. When 
 so exercised it is witlidrawn or excepted from the constitu- 
 tional limitations so far and no farther, as to permit its 
 exercise for the purpose and in the mode indicated and 
 measured by the word ' assessment ' as defined and under- 
 stood in the legislative and judicial history of the country 
 at the time the constitution was adopted. At that time a 
 personal liability to be satisfied by the seizure of other 
 property than that assessed, property not bordering upon 
 nor in the vicinity of the improved street and therefore not 
 benefited by the improvement, constituted, so far as we are 
 advised, no part of the mode." * A dissenting opinion was 
 filed by Justice Sawybk in which he took an opposite view, 
 and held the statute providing for a personal liability to 
 be constitutional. The dissenting opinion reviews with 
 great ability the authorities on this point, and shows con- 
 clusively that assessments of this character were a personal 
 liability in New York city and other cities in that state at 
 the time the constitution of California was framed ; also iu 
 other states.^ In Maryland the liability is personal. It is 
 both a personal and a property liability in that state,* also 
 
 * Taylor v. Palmer, 31 Cal. 249-255. ^ The Mayor of Baltimore v. Pro- 
 ^ Taylor u. Palmer, 31 Cal. 666-690 prietors of Green Mount Cemetery, 
 and, cases cited. 
 
STREET ASSESSMENTS. 463 
 
 in New Jersey, Pennsylvania, Connecticut, Massachnsetts, 
 Ohio, Michigan, Missouri, and Minnesota^ The majority 
 opinion has been followed, by other decisions in the state of 
 California and has become the policy of that state in its 
 legislation upon the assessment of Swamp Lands for recla- 
 mation purposes, as will be seen in another part of this work. 
 The question of the right to sell personal property to pay 
 a special assessment (which is the same question presented 
 in this section) arose in the state of Illinois upon the con- 
 struction of the charter of the city of Aurora. There were 
 two sections of chapter 3 of the charter which gave rise to 
 this question, reading in the following language : Section 4. 
 "All taxes and assessments, general or special, levied on or 
 assessed by the common council under this act or the act to 
 which this is an amendment, shall be a lien upon the real estate 
 upon which the same may be imposed, voted or assessed, for 
 two years from and after the corrected assessment roll shall 
 have been confirmed, and on personal estate from and after 
 the delivery of the warrant for the collection thereof until 
 paid, and no sale or transfer shall affect the lien. Any per- 
 sonal property belonging to the debtor may be taken and 
 sold for the payment of taxes on real or personal estate." 
 Sec. 7. All taxes and assessments general or special shall be 
 collected by the collector or collectors in the same manner 
 and with the same power and authority as are given by law 
 to collectors of county and state taxes." The court say — 
 that while it might seem from a reading of the first clause 
 of section 4 that assessments were made a lien on personal 
 property, yet this clause of the section is to be read in con- 
 nection with the second, which drops out the word "assess- 
 ment" — says "any personal property belonging to the 
 
 8 Md. 517; Clemens v. Mayor of Bal- St. 24.^; Bonsall v. Lebanon, 19 Oliio 
 
 timore, 16 Md. 208. 419; Greighton d. Scott, 14 Ohio St. 
 
 ^ See in dissenting opinion of Jus- 439 ; Keeves v. Treasurer Wood 
 
 tice Sawyee, cases cited from eacli County, S Ohio St. 336; Lefevre v. 
 
 of these states, to wit: Elmer's N.J. Mayor of Detroit, 2 Mich. 587; 
 
 Digest, 656, § 33; The Nonhei'n Lib- Woodbridge v. City of Detroit, 8. Id. 
 
 erties v. St. John's Church, 13 Pa. 276-9; Lovell ». City of St. Paul, 10 
 
 St. R. 104; Nichols v. Bridgeport, Minn. 293; City of St. Louisi). Clem- 
 
 23 Conn. 190; Lowell v. French, 6 ens, .36 Mo. 473. 
 Cush. 223; Hill v. Higdon, 5 Ohio 
 
464 THE LA"W OF ASSESSMENTS. 
 
 debtor may be taken and sold for the payment of taxes on 
 real or personal estate ; so that the true reading of the first 
 clause taken together with the second is that all taxes and 
 assessments general or special, shall be a lien upon the real 
 estate upon which they are imposed ; and all taxes shall be 
 a lien on personal estate," etc. " It is a rule " — say the 
 court, that when a new statute gives a new power and at 
 the same time provides the means of executing it those who 
 claim the power can execute it in no other way. When we 
 find a power to make the assessments, their payment can be 
 enforced in the method directed by the statute and not other- 
 wise." The method specially provided for enforcing paj-- 
 ment of assessments by this charter was by application to 
 the count}' court for judgment against the lot assessed for 
 the amount of the assessment, and for a precept to be di- 
 rected to the sheriff commanding him to sell the lot or so 
 much as may be necessary to pay the judgment. " It is a 
 [iroceeding in rem, and the only peril to which the owner of 
 the lot is exposed by the non-payment of the assessment, is 
 tlie loss of the lot.^ In an early case in the state of New 
 York the distinction was drawn between a tax and an assess- 
 ment in cities, towns and villages. Where the village was 
 authorized to cause the expense of pitching, paving, altering, 
 amending and cleansing the streets to be assessed among 
 the owners and occupants of the houses and lots intended 
 to be benefited thereby ; and the trustees of the village 
 were authorized by warrant, to levy the assessment by dis- 
 tress and sale of the goods and chattels of the owner or 
 occupant who should make default in payment; it was held 
 that real estate could not be sold for an assessment levied 
 upon property benefited by a local improvement.^ It will 
 be seen that the rule as to whether an assessment creates a 
 personal and a property liability or a property liability only 
 differs in different states and depends iipon constitutional 
 and statutory regulation. Later decisions in Missouri reverse 
 the decisions cited in the dissenting opinion of Justice Saw- 
 YEK and hold the law to be in conformity with the majority 
 opinion in Taylor v. Palmer. In the case of Keenan v. 
 
 " Mix V. Moss, 57 111. 123. 
 ' Sharp V. Spur, 4 Hill 81. 
 
STREET ASSESSMENTS. 465 
 
 Smith ^^ the court held that the object of a local tax "beinjr 
 to benefit local property it should be a charge upon that 
 property only and not a general one upon the owner." The 
 court present the view that if the tax is to constitute also 
 a personal liability it becomes as to the owner of the prop- 
 erty a general tax. As. to the case of the city of St. Louis 
 V. Clemens, the court say — "we are not satisfied with the 
 reasons upon which that view is based, and must consider 
 that this point was not then sufficiently considered. The 
 construction given above is not only more reasonable, but 
 we greatly doubt whether the legislature has the power to 
 authorize a general charge upon the owner of the local 
 property which may be assessed for its especial benefit, 
 unless the owners of all taxable property within the munici- 
 pality are equally charged. As to all property not so specially 
 benefited he stands on the same footing with others; he has 
 precisely the same interest, and should be subject to no 
 greater burdens." The same doctrine was subsequently 
 recognized and affirmed in the same court." This view is 
 taken by the Supreme -Court of Washington T. in the case 
 of city of Seattle v. Yesler.^''* The city ordinance under 
 charter authority made the assessment a lien upon the lots 
 benefited, and also a personal charge against the owner. 
 There were no restrictions on the powers of the city nor 
 upon those of the territorial assembly to provide the rule of 
 liability of this sort of taxation except that found in Sec- 
 tion 1924 U. S. Revised Statutes, relating to the powers of 
 the legislative assembly of territories in relation to taxation, 
 leading in these words — "all taxes shall be equal and uni- 
 form, and no distinctions shall be made in the assessments 
 between different kinds of property, but the assessments 
 shall be according to the value of the property." After 
 reviewing the cases the court say — " The principle declared 
 by Judge Cooley ^^ and fully supported by the Supreme 
 Court of Missouri and California, is based upon reason and 
 justice and is in our view the correct rule for making such 
 assessments. The city may take the whole property bene- 
 
 "> 50 Mo. 529; see also 36 Id. 473. " i -Wash. 576. 
 
 » Carlin v. Cavender, 56 Mo. 289; " Cooley on Tax. 471-2. 
 City of St. Louis ». Bressler, Id. 351. 
 30 
 
466 THE LAW OP ASSESSMENTS. 
 
 fited if necessary, for the payment of the tax, but cannot 
 make the tax a personal one against the owner." The same 
 view is taken by the Supreme Court of Illinois.^* Also by 
 the Supreme court of New Jersey.''^ 
 
 Sec. 311. Separate Parcels must be separately assessed — 
 "Work done under Abandoned Contract. — The general doc- 
 trine of separate assessments and valuations as applicable to 
 assessments for ordinary taxable purposes, has already been 
 discussed.^ It only remains to be added that, in making 
 assessments for street and other local improvements, made 
 at the cost of the adjoining property benefited, and the cost 
 of which constitutes a lien upon the property liable there- 
 for, separate assessments of separate lots or parcels be- 
 comes mandatory. This is necessary, even if the same 
 person should be the owner of several contiguous lots, 
 unless he should have built over the dividing line so as to 
 make it impracticable to sell the lots separately for the 
 non-paj^nent of the assessments. In such case, although 
 the listing should follow the subdivisional description, yet 
 both lots should be treated and asse^ed as one parcel.-** In 
 making an assessment for work done under a contract, 
 after the abandonment of a former contract, it is not 
 proper "to equalize the work done under the aban- 
 doned contract with that done under the new contract." 
 The work done under the new contract which is connected 
 and continuous, should be estimated together and appor- 
 tioned to the property in front of which it was done, but 
 detached and fragmentary work ought to form the basis of 
 a separate estimate.^ 
 
 Sec. 311a. When Property not Liable for a Iiocal Improve- 
 ment. — When property is so situated with respect to a local 
 improvement as not to be benefited thereby, it is not liable 
 to assessment for the expense incurred in making the im- 
 provement. And this question as to benefits, may always 
 be raised at some stage of the proceedings initiated to create 
 
 " Craw V. Village of Tolono, 96 i Chapter x. 
 
 111. 25; (s. c, 36 Amer. K. 145.) ^ » Ante, § 141, n. 4. 
 
 "The State?). The Mayor and Com- ''Kemper v. King, 11 Mo. App. 
 
 mon Council of the City of Newark, 128. 
 86 if. J. 478; (s. c, 13 Amer. E. 464.) 
 
STREET ASSESSMENTS. 467 
 
 and enforce a liability for assessments. When the same 
 statute or law which authorizes their imposition provides 
 the method and proceeding, on the part of parties interested, 
 who desire to object to being included within the district, or 
 to the character or amount of the assessment contemplated, 
 the remedy may be confined to such provision ; but when 
 no such provision exists, and the remedy provided for the 
 enforcement of the assessment consists of a suit or action 
 in a court of competent jurisdiction as in other civil actions, 
 then all defenses may there be made. Where no provision 
 is made for a hearing, or for making defenses, at some time 
 or place, before all final proceedings are closed, the assess- 
 ment would not constitute due process of law.^ 
 
 Sec. 312. Equalization the exclusive remedy for grievances. — 
 In every system of taxation, whether for general or special 
 purposes, provision is made for an equalization of assess- 
 ments — for a hearing of grievances by reason of alleged 
 inequality or other cause of complaint, and when such pro- 
 vision is made it becomes the exclusive remedy for all 
 grievances covered by the provision.^ But if this be not 
 provided for in some form, no valid assessment can be 
 
 1 Where an artificial road was made superintendent of public streets, . . . 
 seven miles in length and the cost in relation to the acceptance of work 
 was assessed upon the land within or to the assessment, or to any act, 
 certain distances, whether abutting proceeding, matter or thing done, 
 upon the road or not, and the owners suffered or committed by him, shall, 
 of such portion of the land as did within fifteen days . . . appeal to 
 not abut on the road did not travel said board of supervisors, as pro- 
 upon it, it was held as to such lands vided inthissection, by briefly stating 
 that the assessment was unconstitu- their objections in writing, and filing 
 tional. Washington Avenue, 69 Pa, the same with the clerk of said board 
 St. 352. (Same ruling as to a parcel of supervisors." (Stat. Ca,l. 1S71-2, 
 of land included within Swamp Land p. 815, § 12. See post, 314. J Pro- 
 District, but not included within vision is made for persons having 
 reclamation works nor benefited objections to the proposed work ob- 
 thereby. See post, § 357.) jecting on that ground at an earlier 
 
 1 It is provided by the amendments stage of the proceedings. The pro- 
 
 to the consolidation act of the city vision herein quoted is in the nature 
 
 and county of San Francisco, that of an equalization of the assessment 
 
 " The owner, contractor or his as- after the work has been done. Un- 
 
 signs, and all persons, whether der the new system in California, 
 
 named in the assessment or not, providing for collecting the assess- 
 
 feeling aggrieved by any of the ment before the work is done, this 
 
 acts or determinations of the said appeal must be made within five days 
 
468 THE LAW OF ASSESSMENTS. 
 
 levied, and it would become the undoubted province of the 
 courts to grant relief. ^ 
 
 Sec. 313. Equalization the exclusive remedy, except for 
 fraud. — Under the system of street improvements contained 
 in the charter of St. Paul, all persons to be affected by 
 a street assessment have three opportunities to be heard — 
 one, and the first, in answer to a notice given by the board 
 of public works, specifying what the assessment is to be 
 for, and the amount to be assessed; the second, after the 
 assessment has been made, in answer to a notice to hear 
 objections and for the confirmation of the same — when the 
 board of public works are authorized in their discretion to 
 revise and correct the assessment, to confirm it or set it 
 aside ; the third opportunity is when the city treasurer 
 oives notice of his intention to apply to the district court 
 for judgment for delinquent assessments. Under the first 
 notice, "the board may properly hear suggestions, argu- 
 ments, and in their discretion, evidence, as to what area, 
 and what parcels of land are specially benefited by the im- 
 provement, and which should therefore be assessed, and as 
 to the proportionate amounts to be assessed upon the dif- 
 ferent parcels benefited Under the second 
 
 after publication is made that the the court held that it was exclusive 
 "assessment roll" is in the hands of any other, using the following 
 of the clerk (Stat. Cal. 1883, p. 36, language: "The tax-payer, how- 
 §7;) and it is provided that "No ever, though not a party to the 
 assessment shall be held invalid ex- contract, is allowed to object that 
 cept upon appeal to the city council, the work has not been done in ac- 
 iis provided in the preceding sec- cordance with the contract, and to 
 tion, because of any error, informal- appeal from the determination of 
 ity, or other defect in any of the the superintendent accepting it. I 
 proceedings prior to the assessment, have no doubt but that this right is 
 or in the assessment itself, when the exclusive of any other remedy as to 
 notice of the intention of the city all matters which can be revised 
 council to order the work to be done and corrected on such appeal." 
 for which the assessment is made Chambers v. Satterlee, 40 Cal. 526. 
 lias been published in such newspa- In California, in another case, where 
 per or newspapers," &c. In con- the objection taken was to an infor- 
 struing this remedy by appeal, from mality in making the assessment, 
 the action of the superintendent of but failed to show any injury result- 
 streets under the provisions of the ing therefrom, the same doctrine 
 consolidation act and its amend- was affirmed. Dyer v. Parrott, 60 
 ments, to the board of supervisors, Cal. 552. 
 by a party claiming to be aggrieved, '•^ Stat. Cal. 1883, p. 36, § 7. 
 
STREET ASSESSMENTS. 469 
 
 notice, objections to the assessment as actually made and to 
 its confirmation are heai'd; its justice and fairness "is up 
 and open for objection, though the question whether there 
 is an occasion for an assessment is not open — that, as we 
 have before seen, having been previously settled." Under 
 the notice of the city treasurer, no objection that could 
 have been made under the previous notices, can be enter- 
 tained. Objections that show that no judgment ought to 
 be rendered by reason of fraud or other sufficient cause, 
 may be presented upon the application for judgment ;, but 
 it must not be an objection whicli might have been pre- 
 sented to the board of public works previous to the con- 
 firmation of the assessment.^ 
 
 Sec. 314. Error must be shown to have injured the com- 
 plaining party — Surveyor's Fees In the city of New York 
 
 the entire expense of constructing sewers and other public 
 improvement is, by law, imposed upon the property owners. 
 This includes, among other necessary expenses, surveyors' 
 fees, notwithstanding the fact that the surveyors are under 
 salaries paid by the city; and where a party complains that 
 too great a sum has been charged for surveyors' fees, it 
 devolves upon the complainant to show that a greater sum 
 has been charged than is necessary to remunerate the city 
 for the moneys for engineers' expenses, making maps, plans 
 and surveys. The items of charge may consist of the sur- 
 veys necessary to complete the general plan of the district 
 when a survey is necessary, as when the improvement con- 
 sists of a sewer; a detailed survey of the streets and 
 avenues through which the sewers are to be built ; a plan 
 of the work ; staking out the work for construction ; giving 
 necessary grades; comparing the sewer, when built, with 
 the grades given for its construction ; preparation of the 
 contract ; measurements for monthly payments to the con- 
 tractor ; and the final and conclusive survey of the entire 
 sewer. In order to entitle a party assessed to any reduc- 
 tion on account of the sum charged for expenses of sur- 
 veys, it is necessary to show that the expenses for that 
 item are too high, and could be admeasured in a way that 
 
 I State V. Board of Public Works of St. Paul, 27 Minn. 442. 
 
470' THE LAW OF ASSESSMENTS. 
 
 would be more just to the party complaining and to tbe 
 public.^ 
 
 Sec. 315. Hemediea against illegal Assessments— not in 
 Equity— Exceptions. — When, an unauthorized or illegal assess- 
 ment has been made for a street or other local improve- 
 ment, the relief against it is of legal, and not equitable 
 cognizance. In Movers v. Smedlej-,^ a suit brought to re- 
 strain the collection of an alleged illegal tax, levied to pay 
 certain bounties voted by the supervisors of the town for 
 the killing of wolves. Chancellor Kent said: "I cannot 
 find by any statute, or precedent, or practice, that it be- 
 longs to the jurisdiction of a court of equity to review or 
 control the determination of the supervisors in. their exam- 
 ination and allowance of accounts chargeable against their 
 county or any of its towns, and in causing the moneys so 
 allowed to be raised and levied. ... It has always been a 
 matter of legal, and never a matter of equitable cogni- 
 zance." The doctrine here announced was applied in a re- 
 cent suit in equity, brought to set aside a sale of certain 
 lands sold for the non-payment of a tax, to have the tax 
 declared illegal and void, and to restrain the municipal 
 authority from executing a deed to the purchaser.^ Whilst 
 the court regarded the tax complained of as illegal, unjust 
 and oppressive, it was held that the court did not have 
 jurisdiction over the subject. The rule is gene.ral that 
 "an action will not lie to review the proceedings of muni- 
 cipal boards and officers, or to correct irregularities and 
 errors which may have been committed."^ In all matters 
 pertaining to taxation, a party who seeks equitable relief 
 
 ' It has been decided in New York tlie board, as the letter of the law 
 
 that surveyors' fees are part of the provided, held that it was sufficient; 
 
 necessary expenses of an improve- that the objections, if any were made, 
 
 ment assessed upon the adjoining were for the consideration of the 
 
 property or property benefited. In board, and not the cliairman alone, 
 
 re Merriam, 84 N. Y. 596 ; In re Pel- In re Lowden, 555. (See anie, § 302; 
 
 ton, 85 Id. 651. Where the notice post, § 320; post, §, 334 n. 6, 7, 8. 
 
 requiring all persons desiring to ^ 6 John. Ch. R. 29. 
 
 make objection to the assessment ^ Quest v. The City of Brooklyn, 
 
 for an improvement made at the 69 N. Y. 506-511. 
 
 expense of tlie property benefited ^Id. p. 513, 514; States. Cooper, 
 
 cited the appearance before the 18 N. W. Rep. 439 (Wis.) and cases 
 
 board, instead of the chainnau of cited. 
 
STREET ASSESSMENTS. 471 
 
 apfainst an assessment of which he complains, must himself 
 offer to do equity. He must offer to pay such amount of 
 tax as the facts show to be properly chargeable against him 
 under a proper assessment. * Exceptions to the rule stated 
 are classed xinder four heads: 1. To prevent a multiplicity 
 of actions ; 2. To prevent irreparable injury to the freehold ; 
 3. To remove a cloud from the title, and 4. Where a party 
 has no other remedy. "Where the law requires a party 
 claiming under a sale for delinquent taxes or assessments 
 to show that all the statutory requirements have been com- 
 plied with, no invalid assessment could create a cloud, of 
 title for the reason that the assessment under which the 
 claim is made also shows its invalidity, but where the law 
 makes the i-ecitals contained in a certificate of sale or deed 
 executed upon a sale for delinquent taxes or assessment, 
 prima facie evidence of the facts so recited, and the party 
 defending against such sale would be required to overcome 
 such recitals by evidence, equity will assume jurisdiction 
 to set aside the sale and prevent the execution of a deed, 
 or, if already executed, to set it aside.* 
 
 Sec. 316. Remedies against illegal Assessments — not in 
 equity ; Exceptions — Continued. — An act declared that no as- 
 sessment imposed before the passage of the act, or thereafter 
 to be imposed, for any works of improvement, should be va- 
 cated or set aside by reason of any omission to advertise an j' 
 ordinance or resolution authorizing the improvement, and 
 that all property benefited bj'' any improvement or other 
 work already completed or then being made, should be 
 liable to assessments for such improvement or work, and 
 ■ that all assessments for any such improvement or other 
 public work shohld be valid and binding, notwithstanding 
 
 * Scott V. Onderdonk, 14 K. T. 15; granting an injunction, placed the 
 
 Heywood ». Buffalo, Id. 588; Guest ruling upon the doctrine of prevent- 
 
 V. Brooklyn, 69 Id. 513. ing a multiplicity of suits, holding 
 
 To prevent multiplicity of actions. " that equity will not allow a title, 
 
 Where the ground for the interpo- otherwise clear, to be clouded by a 
 
 sition of equitable relief was based claim which cannot be enforced 
 
 upon a want of jurisdiction to levy either in law or equity." Holland 
 
 the assessment, and an attempt,was v. Mayor &c. of Baltimore, 11 Md. 
 
 being made to enforce the assess- 197. 
 ment by a sale of land, the court, in 
 
472 THE LAW OF ASSESSMENTS. 
 
 any such omission, &c. — but no pending suit or proceeding 
 to set aside an assessment, should be affected by the act. 
 In a suit brought to restrain the execution of a deed — to 
 set aside the sale and to vacate the assessment, under an 
 ordinance which had not been advertised, made prior to 
 the passage of the act, the judgment of the trial court was, 
 that the sale be set aside and the execution of the deed 
 enjoined, but that the pra3'er to vacate the assessment be 
 denied, and this judgment was affirmed. The affirmance of 
 the judgment denying the prayer to vacate the assessment 
 was based upon the ground that the legislature had the 
 right to deprive the courts of the power to grant the relief 
 prayed for, and had done so by enacting that assessments 
 should not be vacated for the cause stated, leaving the 
 party to any other remedy he might have to defeat such 
 assessment.^ 
 
 Sec. 317. Remedies against illegal Assessments — when 
 relieved against in equity.— But while no relief in equity' 
 Avill be granted to vacate an assessment for want of notice, 
 under such statute as referred to in the preceding section, 
 where no fraud is alleged and the work of a local improve- 
 ment is contracted for by the municipal authorities and a 
 good and responsible bond taken for the performance of the 
 contract, yet in a case where the contractor fails to com- 
 plete his contract and the city lets the work to another con- 
 tractor largely increasing the cost of the work, and after 
 having paid for the work at the increased price, is proceed- 
 ing to levy and collect an assessment against the property 
 benefited to reimburse itself for the money so paid; having 
 made no effort to recover from the bondsmen the original 
 contract price and the increased cost of the work under the 
 second contract, in such case the courts will enjoin the city 
 from collecting so much of the assessment as would be 
 represented by such increased cost. It would appear that the 
 property owners, if they paid the assessment, including the 
 increased cost, would have had no remedy on the bond, 
 whereas the city would, and should at least make an effort 
 to reimburse itself from this source before attempting to 
 enforce payment through an assessment against the owners 
 1 Lemon v. Mayor, 55 N. T. 363. 
 
STREET ASSESSMENTS. 
 
 473 
 
 of the property benefited. Courts of equity in matters of 
 assessment, as in other matters, have jurisdiction, where a 
 party has no other remedj-.^ 
 
 Sec. 318. Estoppel. — Where an owner of an abutting 
 lot assures a contractor doing street improvement work 
 that if he would do the work he would be paid, such owner 
 will be estopped afterwards, when sued ipr his portion of 
 the cost, from showing that the petition presented for in- 
 augurating the improvement was not signed by the requi- 
 site number of owners of lots abutting on the street where 
 the work was done.^ Also, where a party accepts a benefit 
 under an assessments he will be estopped from denying its 
 validity. A member of a board, clothed with power to 
 levy taxes, who votes for levying a special tax, notwith- 
 standing it may not be, in itself, a proper subject of taxa- 
 tion, will be estopped from setting up the invaliditj' of the 
 tax.^* Where the law requires a majority of property owners 
 who will be affected by a local improvement to sign a petition, 
 and a less number sign, those who do sign are not estopped 
 
 1 Eno V. Mayor, 68 N. Y. 017. 
 
 ' Corey v. Gaynor, 22 Ohio St. 584. 
 A street contractor, also an owner of 
 abutting property liable to assess- 
 ment, after tbe work was done and 
 the assessment was levied, for value 
 received assigned all Ms right, title 
 and interest in the contract and as- 
 sessment. He was afterwards made 
 a defendant in an action to foreclose 
 the assessment lien, and attempted 
 to make defense that the assessment 
 was invalid because not in compli- 
 ance with the law authorizing street 
 assessments; but the court held that 
 he was estopped from making this 
 defense. " A party cannot for value 
 assign a contract and assessment and 
 then set up the defense that they are 
 invalid because not in compliance 
 with the street law. The law does 
 not tolerate such a procedure. Hav- 
 ing accepted a benefit under it he 
 cannot be heard to say that it is in- 
 valid." Callender v. Patterson, 5 
 West Coast E. 228. (Cal.) 
 
 ' * A special tax was levied to raise 
 money to refund the town treasurer 
 money whicli it was alleged had been 
 stolen. The plaintiff paid his por- 
 tion of this tax under protest, and 
 sued to recover back the money. It 
 appeared that he was a member of 
 the board of supervisors when the 
 tax was levied, and voted to levy the 
 tax. The tax law expressly author- 
 ized boards of supervisors to exam- 
 ine into certificates of money to be 
 raised in townships, and directed 
 that " they shall hear and duly con- 
 sider all objections made to raising 
 any such moneys by any tax-payer 
 to be affected thereby." " Under 
 these circumstances," said the court, 
 " the plaintiff can hardly be allowed 
 to complain of his own act, and re- 
 cover back taxes which probably 
 would not have been laid if he had 
 made timely objection." Wood v. 
 Norwood Township, 1" N. W. Kep. 
 229. Where the law requires a veri- 
 fied statement, one not verified es- 
 
474 
 
 THB IiA"W OF ASSESSMENTS. 
 
 from showing the want of jurisdiction. When there is a want 
 of jurisdiction, it is not necessary to take any steps to stop 
 the work before it is done. It is competent for the tax- 
 payer, whenever any attempt is made to enforce the assess- 
 ment, to show a want of jurisdiction in the officer or 
 tribunal to levy or assess the tax, subject, however, to 
 ordinary rules pertaining to the doctrine of estoppel and 
 waiver.^ 
 
 Sec. 319. Mandatory and Direotoiy. — When the acts to 
 be done are for the benefit or protection of the property 
 owner or tax-payer they are mandator)'; but when they are 
 
 tops the party presenting it equally 
 as if verified. State u. Cooper, 18 
 N. W. Eep. 438. (Wis.) 
 
 ^ See further on estoppel the case 
 of Mayo v. Foley, 40 Cal. 282, and 
 the title " PEESUMPTioif s." 
 
 Less than a majority signing peti- 
 tion — signers not estopped. Where 
 the law providing for the improve- 
 ment of a street required a majority 
 of the property owners to sign a pe- 
 tition, and less than a majority 
 signed and presented a petition, sup- 
 posing that the signers constituted 
 the majority, the court said: " The 
 principle of estoppel has no applica^ 
 tion to the case. The law requires 
 the application of the owners of a 
 majority of the feet fronting on the 
 avenue before any steps can be taken 
 by the corporation to have it graded; 
 but, because the appellee had signed 
 such an application, it surely cannot 
 be successfully maintained that he 
 assented that the work should be 
 done in any other way than the law 
 requires, or if he had so assented, 
 that such assent could confer any 
 power upon the city commissioner 
 not possessed by him under the laws 
 and ordinances of the city." Mayor 
 &c. of Baltimore v. Porter, 18 Md. 
 301. In a recent case in the New 
 York Court of Appeals, the facts 
 were that one Sharp, with others, 
 presented a petition for re-paving, 
 
 designating Nicholson, as the kind 
 of pavement desired. It appeared 
 afterwards that less than a majority 
 of the frontage was represented by 
 the petitioners, and it was contended 
 that the petitioners were estopped by 
 having signed the petition, but a 
 different view was taken of the 
 question. The court said; "Upon 
 principle there is no basis for such 
 an estoppel. All that the petitioner 
 did was as a property owner to peti- 
 tion the board to proceed and re-pave 
 the street in the mode desired by 
 him, as he lawfully might. He 
 made no representation to the board 
 that the signers constituted a major- 
 ity of the owners of property front- 
 ing on the street, or anything to that 
 effect ; he had a right to rely upon 
 the performance of its duty by the 
 board, which was upon the presen- 
 tation of the petition, and before 
 basing any action thereon to ascer- 
 tain whether the members who had 
 signed were sufficient to confer ju- 
 risdiction to act. Signing or pre- 
 senting it was no assertion of Its 
 sufficiency in this respect. ... A 
 party is estopped only when, by his 
 declarations or conduct, he has in- 
 duced another to act upon the sup- 
 posed existence of a fact, and would 
 be in consequence injured by show- 
 ing its non-existence. There is no 
 such element in this case. The con- 
 
STREET ASSESSMENTS. 
 
 475 
 
 required to be done for the benefit or security of the 
 government, or authority receiving the tax or assessment 
 when collected, they are directory. In the former class of 
 cases the acts must be done witliin the time specified or 
 limited, while in the other class, they may be done after- 
 wards. When the act falls within the class of mandatory 
 acts, the statute must be strictly complied with ; if other- 
 wise, a substantial compliance is sufficient. Where tlie 
 statute requires that the commissioners of the board of 
 public works shall take an oath to faithfully execute 
 their duties, as required by the statute, this act is man- 
 datory, and if not done, any assessment made by them will 
 
 sequence of tlie doctrine contended 
 for would be to make the assessment 
 valid upon such owners as had signed 
 the petition, while invalid as to all 
 others." . . . In the Matter of Sharp, 
 56 ISr. Y. 251. 
 
 Signing and presenting petition — 
 held estoppel. A different view is 
 presented in the case of The City of 
 Burlington v. Gilbert, 31 Iowa .364. 
 The facts were that the defendant 
 and forty-eight others signed a peti- 
 tion to fix the grade and grade a 
 street in front of their property. It 
 was ascertained that less than two- 
 thirds of the property owners had 
 signed it. It was then taken and 
 additional signatures obtained, and 
 a two-thirds majority for each block 
 except one were signed to the peti- 
 tion. The defendant was one of the 
 signers, and on the ground that less 
 than two-thirds of each block had 
 signed, refused to pay his assess- 
 ment. In passing on the question, 
 Justice Miller said: "Had the 
 petition not been signed by the 
 requisite number of property own- 
 ers, the action of the city might not 
 bind those who had not signed the 
 petition. As to them, the action of 
 the city in assessing the cost of im- 
 provement to their property might 
 be without authority and invalid. 
 Whether it would be so or not we 
 
 do nbt decide. But in this case, the 
 defendant Gilbert, with forty-eight 
 others, signed and presented the pe- 
 tition to the city council, asking the 
 improvement to be made, and when 
 the city solicitor reported that the 
 petition was not signed by a suffi- 
 cient number of owners, it was taken 
 by the petitioners and additional 
 signatures obtained and again pre- 
 sented to the city council for action 
 thereon. There is no claim that the 
 defendant signed the petition with 
 the understanding that it was to be 
 presented and he bound thereby, 
 only after a sufficient number of 
 property owners had signed it. On 
 the other hand, the record shows 
 that the petition, when signed by 
 defendant and forty-eight others, 
 was by them presented to the city 
 council, and that, if the petition was 
 not sufficiently signed, he knew the 
 fact. And we are of opinion that 
 after having thus signed and pre- 
 sented the petition to the city coun- 
 cil, thereby inducing the city to enter 
 upon the improvement requested in 
 the petition, the defendant is es- 
 topped from objecting that his peti- 
 tion was not sufficiently signed. The 
 defendant by his acts consented and 
 agreed in writing that the city should 
 make the improvement designated in 
 the petition, and assess his property 
 
476 
 
 THE LAW OF ASSESSMENTS. 
 
 be void. And where the statute requires that the commis- 
 sioners shall give notice of the time of their meeting, to be 
 at a public place, and they give the notice, but did not 
 meet at the time and place designated in their notice, this 
 omission will be fatal to the assessment.^ 
 
 Sec. 320. sewers— all property benefited assessable there- 
 for—Surveyors' fees. — When the improvement consists of a 
 sewer it is not necessary that the property be situated on 
 the line of the sewer in order to make it liable to assessment 
 for its construction. The question is, whether or not the 
 property will be, or is benefited.^ The question being one 
 
 assurance given and continued dur- 
 ing the progress of the -work would 
 work a fraud on the city, which can- 
 not be sanctioned. . . . Tlie consti- 
 tutional right against unjust taxation, 
 whicli the plaintiff in error invokes, 
 is given him for the protection of his 
 private property. He may waive 
 that protection and consent to such 
 action in regard to it as would other- 
 wise be Invalid. Having consented, 
 and the other party having acted 
 thereon, and made expenditures 
 and incurred expense predicated 
 thereon, the consent cannot be 
 withdrawn." Bidwell v. City of Pitts- 
 burgh, 85 Pa. St. 412 (s. c, 27 Amer. 
 K. 656.) "It maynow^be declared as 
 a general rule that where an act is 
 done or a statement made by a party, 
 the truth or efficacy of which it would 
 be a fraud on his part to controvert 
 OT impair, the character of an estop- 
 pel shall be given to what otherwise 
 would be mere matter of evidence. 
 It is not necessary that the party 
 against whom an estoppel is alleged 
 should have intended to deceive; it 
 is sufBcient if he intended that his 
 conduct should induce another to 
 act upon it, and the other, relying 
 on It; did so act." Bidwell v. City 
 of Pittsburgh, 85 Pa. St. 412; (s. c, 
 27 Amer. E. 664.) 
 
 1 Wheeler v. City of Chicago, 57 
 111. 415; (ante, §221.) 
 iWard's Appeal, 3 Pitt. Ob. (Pa. )278. 
 
 with its due proportion of the cost 
 thereof; and he cannot be allowed 
 to repudiate that agreement on the 
 ground that other parties should 
 have entered into the same agree- 
 ment. While they may not be 
 bound, he is." The City of Bur- 
 lington V. Gilbert, 31 Iowa 364. 
 But it is not always where a party 
 signs a petition that he will be al- 
 lowed to show that it was not signed 
 by a majority of owners of frontage. 
 Where the facts were that a party 
 with others signed and presented to 
 the city council a petition wherein it 
 was averred that the petition was 
 signed by a majority of owners of 
 the frontage, and the petition was 
 verified by the party and others, and 
 the city council, taking it for granted 
 that the petition was true as to this 
 averment, acted upon and granted it, 
 it was held that the party signing 
 and presenting the petition would 
 not be heard to show that the ma- 
 jority of owners of frontage had not 
 signed the petition. The court used 
 the following language: "They (pe- 
 titioners) wilfully caused the authori- 
 ties to believe this as a matter of 
 fact. So believing, the authorities 
 acted upon it. They accepted the 
 offer in the terras in which it was 
 made. The petitioners directed the 
 work. They received and enjoy the 
 benefits. To now permit them to 
 deny the truth or the efficacy of the 
 
STREET ASSESSMENTS. 477 
 
 of actual benefits to property, caused by construction of a 
 sewer, it' will not be a violation of the doctrine of uni- 
 formity and equality if lots of unequal size or depth be 
 assessed the same amount, if the value or benefit of the 
 sewer to the property be equal. ^** 
 
 Sec. 321. Sevrers — Flans and Maps of — ■when must precede 
 letting a contract. — Where the statute, under which a city 
 is authorized to lay down sewers at the cost of the property 
 benefited, provides that the city shall be divided into dis- 
 tricts and general plans for the drainage of such districts 
 shall be adopted and maps showing the same filed, before 
 any sewers shall be constructed, it is necessary that those 
 acts be done before any assessments can be made for the 
 construction of sewers. And a contract entered into for 
 the construction of a sewer before the general plan for the 
 same has been devised, is void. The same illegalizing 
 effect attaches, where proposals for the work are advertised 
 for and the bids opened, before the passage of the act author- 
 izing the doing of the work.-^ 
 
 After a general plan has been adopted and a map show- 
 ing the same has been filed, if the needs of the district 
 
 ''InMassingc. Ames, (SlWis. 651- or assessment apportioned to them, 
 2), the court said: " The expense of in the mode of ascertainment for 
 the sewer might be charged in whole street improvements adopted by the 
 or in part upon the lots on the adja- council. The council may first pro- 
 cent marsli without regard to the ceed to lay down the sewer, and then 
 fact whether the lot fronted on the ascertain by the method provided in 
 sewer or not." Under the provi- the proviso to section 106, what 
 slons of its charter, tlie city of Port- property was directly benefited, and 
 land has power to construct sewers, fix the amount to be paid by each 
 and cause the expense to be assessed lot or part of a lot benefited. Where 
 against the property benefited, with- lots of unequal depth but of equal 
 out giving notice and regardless of frontage are assessed for the cost of 
 the protest of the property owners a sewer according to frontage — ^lots 
 to be assessed. The language, that of equal frontage being assessed in 
 when the council shall direct the the same amount without regard to 
 " expense of> construction to be as- depth, the assessment is legal if it 
 sessed on the property directly bene- appear that they receive an equal 
 filed, such expense shall, in every benefit. 
 
 other respect be assessed and col- * Strowbridge ». City of Portland, 
 
 lected in the same manner as is pro- 8 Or. 82; Goodrich v. Minark, 62 JU. 
 
 vided in case of street improve- 121. 
 
 ments," simply adopts the means of * State v. Harrison, 39 IT. J. L. 51. 
 
 enforcing, against those directly i In re Blodgett, 46 N. Y. 180; In 
 
 benefited, the collection of the tax re Protestant E. School, Id. 
 
478 THE LAW OF ASSESSMENTS. 
 
 require another or other sewers, which are not marked on 
 the map so filed, it will not be considered that the con- 
 struction of such other sewer is unauthorized, where the 
 same act permits "such subsequent modifications" (of the 
 plan) "as may become necessary in consequence of altera- 
 tion made in the grade of any street, or otherwise." ^ 
 
 Sec. 322. Se-wers can be laid at expense of Property Own- 
 ers only in a public street — manner of assessment governed by 
 Statute. — Under the charter of the city of New York, a 
 sewer can be laid at the expense of the owners of property 
 benefited, only in a public street. If the place where the 
 sewer is laid is not a public street of the city no assessment 
 to pay for it can be enforced. The principle involved is, 
 that if laid on or over private property, the public would 
 lose its ownership of the improvement as well as all author- 
 ity over it. The same rule obtains where streets, ditches, 
 bridges and levees are constructed at the expense of prop- 
 erty supposed to be benefited by such improvements. Un- 
 less the ownership of the improvement is made to vest in 
 the public, there will be no consideration to the propert}- 
 owner for the assessment levied to pay for it.^ 
 
 The expense of constructing a sewer along a number of 
 streets, if one continued sewer, may be levied against all 
 the property benefited, by one assessment.^ The mode pre- 
 scribed by statute for making assessments to pay the ex- 
 pense of constructing a sewer, may not require nor admit of 
 equalization as applied to ordinary assessment for general 
 taxation ; but where no hearing of objections is provided 
 for, the property owner, whose land is assessed, loses no 
 legal rights by the omission. If the assessment is not made 
 in the manner the law requires, it cannot be enforced, and 
 the property owner may attack the validity of the assess- 
 ment in the proper court whenever an attempt is made to 
 enforce the assessment.^ The authority to construct sew- 
 
 ^Eoosevelt Hospital v. Mayor, 84 Oakland to construct a sewer be- 
 
 N. T. 119. tween a lake and the Bay of San 
 
 1 In re Rhinelander, 68 N. T. 106; Francisco, and designated by metes 
 
 (see post, § 334, n. 6, 7, 8 ; also post, and bounds the district to be as- 
 
 § 345. ) sessed to pay the expense. It was 
 
 ^State V. Keed, N. J. L. 186. made the duty of the city council 
 
 " A statute authorized the city of each year, at the time of levying the 
 
STREET ASSESSMENTS. 
 
 479' 
 
 ers is one of the usual and necessary powers of a city or 
 incorporated town, conferred by charter or general or special 
 statute. Their construction is usually provided for by a 
 special ordinance, as a sanitary or health measure. When 
 
 tax for municipal purposes to ascer- 
 tain the amount necessary to pay 
 tlie interest on tlie cost of tlie sewer 
 and each five years, in addition 
 thereto, a sum that would pay one 
 fifth of the entire cost; and it was 
 made the duty of the city assessor to 
 assess the sums so ascertained upon 
 the lands of the district, "equally, 
 according to area, for said amount, 
 entering such assessment in the as- 
 sessment roll, in the same manner 
 as the taxes are entered therein, but 
 in a separate column." There was 
 no provision in this statute for hear- 
 ing objections to the assessment. 
 (Stat. Cal. 187.S-'74, p. 530.) This 
 act was directly attacked as to its 
 validity, and held valid in Snyder v. 
 Johnson, an unreported case (No. 
 6,016), and this ruling affirmed in 
 Emery v. Keed, 3 West Coast E. 
 195. (s. c, 4 Pac. Eep. 201.) Justice 
 Shaepstbin, in concurring with the 
 majority, used the following lan- 
 guage: "Under the act which au- 
 thorized this assessment to be made, 
 it was the duty of the city council 
 each year to ascertain the amount 
 required to pay the interest on the 
 sewer bonds, and of the assessor to 
 assess the lands liable therefor 
 equally, according to and for such 
 amount. If the assessor failed to 
 assess said lands equally, according 
 to area, the inevitable result would 
 be, a void assessment, under which 
 the owner of any land so errone- 
 ously assessed, could not he deprived 
 of his property. In case of assess- 
 ments for general municipal purposes 
 it is only on the question of valua- 
 tion that a tax-payer of said city can 
 have a liearing before the assessment 
 on his property becomes final. Here 
 
 no such question arises or can arise. 
 The only questions which could 
 possibly arise in this case, are ques- 
 tions upon which a tax-payer, under 
 the cliarter of said city, could have 
 no hearing before the board of equal- 
 ization. If this assessment was not 
 made as the law required it should 
 be, it was void. In case of over- 
 valuation, an aggrieved party would 
 be concluded by not appearing before 
 the board of equalization or by the 
 determination of that board, if he 
 did appear before it. It was impor- 
 tant, therefore, that he should have 
 such notice as would enable him to 
 appear if ho desired to. In that 
 case he might be prejudiced if no 
 notice was given. In this case he 
 could not be prejudiced by the omis- 
 sion to give notice. The assessment, 
 if made in the manner prescribed by 
 the statute, would be valid, other- 
 wise void. And the appellant was 
 not, and could not be deprived of 
 the right to sliow that it was not 
 made according to law, whether he 
 had notice or not. He was entitled 
 in this action to attack the validity 
 of the assessment on any ground 
 upon which he could have contested 
 its validity if the law had provided, 
 as counsel contended it should, some 
 board or tribunal, before which he 
 might appear and contest its validity. 
 He has not been deprived of 'his 
 day in court.' If the assessment is 
 not valid it cannot be enforced. He 
 has had an opportunity to contest its 
 validity, and that is the only ques- 
 tion he could have ever contested. 
 I know of no constitutional provi- 
 sion to which this statute is repug- 
 nant." 
 
480 TaB LAW OP ASSESSilEjSrrS. 
 
 the cost of their construction is made a charge upon the 
 property of a district or locality upon the theory of special 
 benefits, the notice of intention would seem to be necessary 
 at some period in the proceedings previous to contracting for 
 the work, but no formal assessment of value is required, only 
 an apportionment of the expense to the real estate of the 
 district to each lot or parcel, according to benefits ascer- 
 tained in such mode as may have been authorized and pro- 
 vided.* But where the constitution of the state or charter 
 of the city gives to the legislative authority of the munici- 
 pality absolute control over the question of the construc- 
 tion of sewers, and provides that their cost shall be appor- 
 tioned to the property benefited, no notice of intention or 
 other notice is necessary, except perhaps as to the equal- 
 ization or apportionment of the assessment, and this the 
 Supreme Court of Colorado hold to be unnecessary (as will 
 be seen by note 4 of this section). 
 
 Sec. 323. Free Turnpike Road Assessments. — It is com- 
 petent for the legislature to provide for the construction of 
 free turnpike roads at the expense of contiguous lands 
 
 * No notice of the proceedings sub- is bound to take notice of tlie ordi- 
 
 sequent to letting the contract seems nances of the city, so that, anterior 
 
 to be required as of any value to the to the making of the contract, lie 
 
 tax-payer. Upon this point, in » (tax-payer) has every notice which 
 
 case tried in the United States Cir- can be required, and the statute 
 
 cuit Court for Colorado, Justice also provides that while the work is 
 
 Bkeweb held as follows: "In the proceeding, on the complaint of any 
 
 proceedings to assess this tax and to citizen or tax-payer, that any public 
 
 do the work, there are these steps: work is being done contrary to the 
 
 first, there is the making of the con- contract, or the work or material 
 
 tract for the building of the sewer; used is imperfect or indifferent from 
 
 second, there is the building of the what is stipulated to be furnished or 
 
 sewer, the performing of the work; done, the council shall examine into 
 
 and third, the mere mathematical the complaint, ... so that in ref er- 
 
 calculation, the apportionment of ence to the making of the contract 
 
 the cost. As to the latter no notice and the performing of the contract, 
 
 can be required, because notice there is provision for notice, and as 
 
 would be of no avail ; as to the first, to the mere apportionment of the 
 
 tl>e statute provides that the city tax, it is one of those matters as to 
 
 council may not act except upon the which, in the nature of things, no 
 
 petition of the majority of the prop- notice can be required, because no 
 
 erty holders, or a recommendation notice would be of value." Gillette 
 
 of the board of trade ; it acts only by ». City of Denver, i West Coast R. 
 
 ordinance; the contract can only be 208 (Col.) 
 let by advertisement. Every citizen 
 
STREET ASSESSMENTS. 481 
 
 ■which are benefited. The principle of charging adjoining 
 lots in cities with the improvement of the streets applies 
 to the construction of such roads. The supposed benefit to 
 the property charged with the expense is considered a 
 sufficient compensation for the burden imposed. In the 
 one case the assessment is generally laid by the front foot, 
 while, in the other, it is by the acre, and also upon an 
 apportionment of actual benefits.^ The act of the legis- 
 lature authorizing the construction of tlie turnpike road, 
 creating officers to carrj' into effect the work, to levy and 
 collect the assessment for such purpose, would create a 
 public and not a private corporation, and the assessment 
 levied to pay the expenses of the work would not constitute 
 a tax, but an assessment, as contradistinguislied from a tax. 
 If the act defined the limits of the district to be taxed, this 
 would be as valid as to appoint a commission to ascertftin 
 the lands to be benefited, and the amount each landowner 
 should contribute towards the cost of tiie road." 
 
 Sec. 32-t. Assessment Liens— priority of. — The legal char- 
 acter of assessment liens must be souglit for in the charters 
 of cities and the statutes creating them. How far they 
 assimilate to ordinary tax or judgment liens can only be 
 determined by the language employed in creating them. 
 From the necessities of the sovereign power imposing gen- 
 eral taxation, taxes are constituted a lien against the prop- 
 erty assessed, confined, in some instances, to real property, 
 superior to all other liens. Where liens exist against the 
 same property for delinquent taxes of two or more years, a 
 
 ' The system of charging the ex- portionment of the benefits on the 
 pense of a public local improvement abutting properties. ... To apply 
 against the abutting properly by the it" (the system or rule) "to the 
 front foot, apportioned according to country and to farm lands would 
 benefits, has been held to be illegal lead to such Irregularity and injus- 
 when applied to country and farm tice as to deprive it of all soundness 
 lands. It is said to be a substitute as a rule, or as a substitute for a fair 
 for " actual assessment," applicable and impartial valuation of benefits 
 only to cities and large towns where in pursuance of law, so that at first 
 the streets, lots and blocks are of blush every one would pronounce it 
 equal width and size. " But it is an to be palpably unreasonable and un- 
 admitted substitute only because just." Seely v. Pittsburgh (82. Pa. 
 practically it arrives, as near as St. 360); 22 Am er. E. 760-162. 
 ■ human judgment can ordinarily ^ Foster v. Commissioners of Wood 
 reach, at a reasonable and just ap- Coimty, 9 Ohio St. 544. 
 
 31 
 
48i 
 
 THE LAW OF ASSESSMENTS. 
 
 title to the property deraigned through a sale under a snh- 
 sequent or junior lien, will prevail over a title acquired 
 under a sale made under the prior or senior lien.^ This, it 
 will be observed, is the converse of the rule as between lien 
 claimants in ordinary civil judgments and other matters of 
 lien. But how far the rule of priority, as between tax-lieu 
 
 1 In an action for possession, 
 founded upon a tax title, the de- 
 fendant sought to interpose as a de- 
 fense an outstanding title also 
 deraigned through a sale of the 
 property for delinquent taxes for a 
 prior year. The following is the 
 di>cision rendered npon that point: 
 " The defendant also relied upon an 
 outstanding title as a defense to the 
 Hflion. But this title was derived 
 iliiougli a sale for delinquent taxes 
 for the fiscal year of 1860, -whilst the 
 I>laintifE's title is founded on a sale 
 for taxes for the year 1807. In such 
 cases it is clear that tlie title ac- 
 quired under a sale for taxes for a 
 subsequent year must prevail over a 
 title founded on a sale for the taxes 
 for a previous year. It was incum- 
 bent on the purchaser at the sale 
 for the taxes of 1860 to see that the 
 taxes of 1867 were paid, and his title 
 is unavailing as against a title ac- 
 quired through a, sale for the taxes 
 for the latter year." Anderson v. 
 VMev, 46 Cal. 138. In Iowa the 
 same ruling was made in the case of 
 Bowman D. Thompson (36 Iowa!506), 
 v.'liere both parties claimed under a 
 tax deed — one for the delinquent 
 taxes of 1857, 1858, 1859 and 1860, 
 and the other for the yeai-s 1861, 
 1862 and 1863. The court used the 
 following language: "Tlius the 
 question is presented, which gives 
 the paramount title, a prior sale for 
 the taxes last levied, or a subse- 
 quent sale for taxes previously le- 
 vied ? This question was, in effect, 
 settled in Preston v. Van Gorder, 31 
 Iowa 250, where it was held that a 
 sale of land for taxes frees it, in the 
 
 hands of the purchaser, from any 
 and all liens thereon for delinquent 
 taxes for prior years. While we ac- 
 knowledge the force of the well-put 
 argument against this view made by 
 the appellant's counsel, yet we do 
 not feel that it is sufficiently conclu- 
 sive to justify us in overruling our 
 former decision, which seems to rest 
 on quite as solid a basis as the oppo- 
 site view." Tlie doctrine of tlie Iowa 
 Cises is, that tliere can be but one 
 sale for all the taxes then overdue. 
 Shoemaker v. Lacy, 38 Iowa 277-81. 
 In Preston v. Van Gorder, 31 Iowa 
 2.50-252, it was held, that under the 
 statute wliicli provides that the treas- 
 urer's deed, made in pursuance of a 
 sale for a delinquent tax, " vests in 
 the purchaser all the right, title, in- 
 terest and estate of the former 
 owner in and to the land conveyed, 
 and also all the right, title, interest 
 and claim of the state and counly 
 thereto," the sale had the effect lo 
 clear the land of all tax liens of 
 prior state and county taxes, an i 
 that it would not clear the land of 
 tax liens of a special tax laid in aid 
 of a railroad where such tax had not 
 been included in the sale. Crowell 
 V. Merrill, 14 K. W. Kep. 82 (Iowa), 
 and cases cited. The same doctrine 
 is announced in Kansas, where it 
 was said on this point, ..." a 
 valid tax deed extinguishes and de- 
 stroys all other titles and liens 
 existing, or based upon anything 
 existing, at the time of the levying 
 of the taxes upon which the tax 
 deed is founded." McFadden v. 
 Goff, 4 Fac. Itep. 843 (Kan.) 
 
STREET ASSESSMENTS. 
 
 483 
 
 claimants, obtains as between assessment-lieu claimants, 
 can only be determined, as before stated, by the express lan- 
 pjuage in the statute making assessments liens.^ Applying 
 the rule to assessments recognized in general tax liens, the 
 junior would prevail over the senior lien. But it does not 
 follow that a junior assessment lien will prevail over a gen- 
 
 - The statute constituting tlie char- 
 ter of tlie city and county of San 
 Francisco, on tlie subject of street 
 improvements, provides tliat after 
 the work is completed the superin- 
 tendent of streets shall assess the 
 cost and expenses upon the abut- 
 ting property, and issue a warrant 
 for the assessment in favor of the 
 contractor, who is authorized to 
 maintain an action in liis own name 
 for enforcement of the assessment 
 which is made a lien against the 
 property assessed, from the time the 
 warrant is recorded in the office of 
 the street superintendent, " for a 
 period of two years from the date of 
 said recording, unless sooner dis- 
 charged; and when suit is com- 
 menced within said two years said 
 lien shall continue for six months 
 after final determination of said 
 suit." (Stat. Cal. 1871-2, p. 814.) 
 Under this statute two assessment 
 liens were acquired against the same 
 property. Under the subsequent or 
 junior lien a judicial sale of the 
 property was made, and the title 
 tliereto obtained, or sought to be. 
 The holder of the prior'or senior as- 
 sessment lien commenced proceed- 
 ings to enforce his lien, when the 
 claimant of title under the sale made 
 under the subsequent lien sought to 
 enjoin the proceedings. The court, 
 after noting the difference between 
 taxes and assessments by quoting 
 from Taylor ». Palmer, 31 Cal. 2.51, 
 proceeded as follows: "Taxes are 
 a public imposition, levied by au- 
 thority of the government, upon the 
 property of the citizen generally, for 
 the purpose of carrying on tlie gov- 
 
 ernment, while the more restricted 
 term 'assessment' is usually, as it 
 was in the present case, induced by 
 tlie request, made known according 
 to the provisions of the charter of 
 the municipal government, of a ma- 
 jority of the inhabitants of the as- 
 sessment district, and is levied for 
 the benefit of the property situated 
 within the particular district — the 
 assessment being an equivalent from 
 the owner for the improvement made 
 to the value of the property. Such 
 assessments are not collected like 
 public taxes, but generally, as in the 
 case here, a particular mode of re- 
 covering the charge is pointed out by 
 the statute. The statute in the 
 present instance does not purport to 
 attach to tlie proceedings for collec- 
 tion, the effect claimed by appellant, 
 and there are no considerations of 
 public policy that require tliat it 
 should be given." Wood v. Bradley, 
 5 West Coast R. 2.35 (Cal.); (s. c. 5 
 Pac. Eep. 023.) Tlie charter of the 
 city of Portland (Or.) directs the 
 clerk to enter each assessment in. 
 the docket of city liens, and that 
 "from tlie date of the entry therein 
 of an assessment upon a lot, or part 
 tliereof, the sum so entered is to be 
 deemed a tax levied and a lien 
 thereon, which lieu shall have pri- 
 ority over all other liens or incum- 
 brances thereon whatever." (Stat. 
 Or. 1882, p. 167-8.) It is presumed 
 that under this and similar provisions 
 the rule of priority of liens among 
 assessment lien-claimants would fol- 
 low the rule laid down in Anderson 
 r. Rider (46 Cal. 138). 
 
484 THE LAW OF ASSESSMENTS. 
 
 eral tax lien, even for municipal taxes ; it has this priority 
 only over liens of the same class. A sale of land for taxes 
 frees it, in the hands of the purchaser, from all liens of 
 prior taxes levied and assessed under the same authority. 
 If the tax be a state and county tax, the sale frees the land 
 from all prior tax liens, but not taxes levied and assessed 
 under municipal or other local authority. A sale for city 
 taxes would not free the land from prior tax liens for state 
 and county purposes. And it has been also held that where 
 a special tax has been levied and assessed, collectable and 
 due at the same time when general state and county taxes 
 are collected, if, for any reason, the land is sold only for the 
 delinquent state and county taxes, and not for the special 
 tax, the purchaser will not obtain the land clear of the lien 
 for the special tax, but takes it subject thereto.^ 
 
DRAINAGE ASSESSMENTS. 485 
 
 CHAPTER XXIV. 
 
 PEATNAGE ASSESSMENTS. 
 
 Sec. 330. Constitutionality of— public use. — An important, 
 branch of the law of assessments has grown up out of the 
 drainage of wet, swamp, and overflowed lands, and the con- 
 struction of levees, dikes, and other works, to protect low 
 lands from overflow. These works are public in their 
 nature, although the benefits arising from their construc- 
 tion may accrue to the individual owners of the lands 
 drained and protected. The right, however, to construct 
 them upon the private property of others can only be exer- 
 cised under legislative authority. To take the private pro- 
 perty of another without his consent, is the exercise of the 
 sovereign power of the state, and can be done only in those 
 cases where this power has been delegated, and the use is a 
 public one. It would be foreign to the purpose of this 
 work to examine the law involving the right of " eminent 
 domain," or the circumstances, in virtue of the state's 
 police power, under which the right of the state to take 
 private propei'ty for public use may be exercised against 
 the right of the citizen to his propert3^ So far as relates to 
 the drainage and leveeing of swamp and overflowed lands, 
 it is immaterial whether the power to take lands held in 
 private ownership for right of way in constructing ditches 
 and levees is to be found in the state's right of eminent 
 domain, or in the right of the state to exercise police and 
 sanitary control over the people and territory of the state, 
 the right to authorize the formation of corporations for 
 these purposes has been recognized too long and too uni- 
 versally, to be doubted or questioned.^ The right of drain- 
 
 lO'Reiley v. The Kankakee Val- vide for the expense, for the mere 
 
 ley Draining Co., 32 Ind. 309-195. beneiit of the proprietors, without 
 
 In the state of New Jersey it is held reference to the public good, are to 
 
 that "Laws for the drainage or em- be classed, not under the taxing, but 
 
 banking of low grounds, and to pro- the police power of the government." 
 
486 THE LAW OF ASSESSMENTS. 
 
 age and swamp land districts, under statutory autlioritjs 
 to appropriate the private lands of others for right of way- 
 is well grounded, if referable only to the police power of 
 the state ; " the right to require the owner of property to so 
 use his own that his neighbor may have such reasonable 
 enjoyment in his own possessions as naturally adheres to 
 such a species of property."^ Mr. Cooley, in his Constitu- 
 tional Limitations, seems to place the right of drainage upon 
 the doctrine of eminent domain. After discussing the doc- 
 trine as applied to the purposes enumerated, he saj's: 
 "Upon the same principle of public benefit, not only the 
 iigents of thegoverinnent, but also individuals and corporate 
 bodies, have been authorized to take private property for 
 the purpose of making public highways, turnpike roads, 
 and canals ; of erecting and constructing wharves and 
 basins, of establishing ferries, of draining swamps and 
 marshes, and of bringing water to cities and villages. In 
 all such cases the object of the legislative grant of power is 
 the public benefit derived from the contemplated improve- 
 ment, whether such improvement is to be effected directly 
 by the agents of the government, or through the medium 
 of corporate bodies or of individual enterprise."^* This is 
 probably the correct doctrine as to the ground upon which 
 the right rests.^ 
 
 Sec. 331. Rights and powers concerning. — Conceding the 
 jjower, both to appropriate the private property of others. 
 
 State V. City (Mayor) of ^Newark, .3 plication to tlie County Court, for 
 
 Dutcli. 194. See the cases reviewed the appointment of commissioners 
 
 in this case, also in Palmer v. Stulp, " to locate and mark out the route," 
 
 29 Ind. 329. and assess the damages to the own- 
 
 ^O'Keiley v. The Kankakee, &c., ers of the lands through which such 
 
 32 Ind. 191. ditch or ditches will pass, is not uu- 
 
 ^ Cooley on Lim. 532. See also constitutional. Such an act is not a 
 
 Hagar v. Supervisors of Yolo Co., provision for taking private properly 
 
 47 Cal. 233. for private use. " By public use is 
 
 * Use of one person, a public use. meant, for the use of many, or 
 
 An act of the legislature providing where the public is interested." A 
 
 for a right of way for a proprietor ditch for such purpose, even though 
 
 over the adjoining lands of his neigh- it be for the use of the land of a 
 
 liors, for the purpose of draining tlie single individual, is a public u.ie of 
 
 lands of a single individual, whose the lands of others. Seeley v. Se- 
 
 )and is "so situated that it requires bastian, 4 Or. 28-30. 
 draining," and providing, upon ap- ''See post, §339. 
 
DRAINAGE ASSESSMENTS. 487 
 
 and to levy assessments upon the private lands of others 
 supposed to be benefited by the public improvement work 
 — to procure the right of way over the private lands of 
 others, and material therefrom to construct reclamation 
 works, it must be understood that such rights are to be 
 exercised within the same limitations as in other cases 
 where similar rights are delegated to corporations and in- 
 dividuals for public purposes, or are exercised under valid 
 statutory regulation by the agents of the state. These 
 limitations may be found generally in the statutes which 
 authorize tiie work or improvement sought to be carried 
 into effect, and in the organic law of the state. Principal 
 among these are : 1. That no more land or material must 
 be taken than is necessary to carry the contemplated 
 \\orks or improvement into effect; and, 2. That no more or 
 greater amount must be assessed against the lands bene- 
 fited than the amount of the benefits to result from the 
 contemplated improvement when completed ; otherwise 
 oiie man would be assessed more than the value of the 
 benefit to his land for the benefit of others or the public, 
 and to that extent his property would be taken against his 
 consent to benefit the property of others, or the public, 
 without just compensation. This would be in violation of 
 organic law. 
 
 Sec. 332. validity of Drainage Company and Swamp Land 
 District Assessments — description of the work contemplated. — 
 The validit3' of an assessment under a drainage association 
 or under a swamp land district depends primarily upon the 
 organization of the company or district. In Indiana and 
 some other states the work of reclaiming wet and over- 
 flowed lands is carried into effect through corporations 
 authorized for that purpose but are sometimes effected' 
 under the governing power of the county. The Indiana 
 act of May 22d, 1869, authorizes any number of persons not 
 less than three, " being owners of lands, wet and liable to 
 be overflowed," to organize a company "for the purpose 
 of draining, reclaiming and protecting such lands" and 
 the company is empowered to straighten, widen and deepen 
 channels of water-courses; construct dikes, drains, levees 
 and breakwaters and do everything deemed proper for 
 
488 
 
 THE LAW OF ASSESSMEXTS. 
 
 the purposes of its orgauization. Articles of associutioii 
 must be signed by three or more persons specifying the 
 narrie and purposes of the corporation. All persons owning 
 land to be affected may become members of the corporation. 
 These articles must be recorded in each county in which 
 any part of the contemplated reclamation work is situated, 
 " and from the date of filing the same for record in either of 
 such counties such company shall be a body corporate with 
 all power incident to such bodies." ^ The articles must 
 describe the commencement, course and terminus of the 
 ditch proposed to be constructed.^ Without a proper de- 
 scription of the location and a particular specification of 
 the work, the appraisers would Iiave no basis upon which 
 to act in making the examination of the lands liable to- be 
 affected by the construction of the proposed work and of 
 assessing the benefits and injuries to such lands as are 
 described in Sec. 6 of the act." ^ * ^ 
 
 - Statutes Ind. 1869, p. 82. 
 
 2 Crawford v. The Prairie Creek 
 Ditching Association, 44 Ind. 362, 
 and other cases there cited, decided 
 in the same court. 
 
 Requisites of petition for ditch. 
 Where the county commissioners 
 liave jurisdiction over the right of 
 way for drainage purposes, the peti- 
 tion need not contain the names of 
 tlie persons to he affected. It is only 
 necessary to set forth " the necessity 
 thereof, with a general description 
 of the proposed starting point, route, 
 and terminus." The petition need 
 be signed by only " ' one or more of 
 the land owners." Watkins v. Pick- 
 ering, 92 Ind. 334. 
 
 ^ The Skelton Creek Draining Co. 
 V. Mauck, 43 Ind. 304. 
 
 * In a case previously decided in 
 the same court, involving the same 
 point determined in the case cited in 
 note 3 herein, the court used the fol- 
 lowing language: " The description 
 of the drain in the case before us is 
 so defective as to be wholly useless 
 for every purpose for which the law 
 requires such a description. It is 
 
 impossible to determine from, it 
 whether one or two drains were in- 
 tended, or what lands would be 
 affected by it. No man owning lands 
 in the vicinity could possibly con- 
 jecture whether he had any interest 
 in it, or any right to claim to become 
 a member of the corporation." 
 West 1). The BuUskin Prairie Ditch- 
 ing Co. 82 Ind. 138. 
 
 ^In another case the articles of 
 association were in the following 
 form: 
 
 " Washington Township, Kovem- 
 ber nth, 1856. We, the under- 
 signed, citizens of Blackford county, 
 Indiana, having convened at, &c., 
 have associated ourselves together, 
 and subscribed to the following arti- 
 cles, to wit:" 
 
 Article 1. (name). Article 2. The 
 object of this company is, to drain 
 " and improve the prairies and 
 swamp lands lying and being in the 
 following described lands in town 
 24, range 10, to wit: northwest quar- 
 ter of section 11, in the name of 
 George Wolvertou " (then follows a 
 description of lands belonging to 
 
DRAINAGE ASSESSMENTS.' 489 
 
 It is necessary that the articles of draining associations 
 contain "such a plain description of the commencement, 
 the line and the termination of the ditch as will enable all 
 persons whose lands are liable to be affected by the works 
 to form with reasonable certainty an opinion regarding 
 their personal interests in the corporation. Such descrip- 
 tion is 'an essential prerequisite to the organization of the 
 corporation.^ The description must also state the character 
 of the work contemplated in specific terms. A general 
 statement that it is the object of the company "to drain 
 and improve the prairies and swamp lands lying and being 
 in the following described laud in Town 24 Range 10 — to 
 wit : the north west quarter of section 11 in the name of 
 Judge WoLVANTiN " etc. etc., is not sufficient. The manner 
 of accomplishing the draining should be specified.^ So to a 
 statement that "it is the object and purpose of said associa- 
 tion to ditch and drain the lands in the vicinity of the Duck 
 Pond, in section 19 north, of Range 1 west, and to continue 
 the same from its mouth west, thence northerly, thence 
 northeasterly, thence north and northwesterly along the 
 course as near as possible of the water-course to the head 
 thereof. And also to construct all such branches and arm 
 ditches as may be necessary to fully and completely drain 
 and reclaim the wet lands in the regions of said ditch. 
 All of which lands will be and are situated in the civil 
 townships of Center and Union in said county " is insufBcient 
 and will be so held for uncertainty. The particular lands 
 to be drained must appear from the description. The gen- 
 eral statement — "in the vicinity of the Duck Pond" — in the 
 
 twenty-four other persons). Article pi'oposed to be constructed should 
 
 3. (Declaration that the association have been stated with such distinct- 
 
 shall be a body politic). (Signed by ness and particularity, that all per- 
 
 ten persons and recorded). Tlie sons whose lands were liable to be 
 
 court say that "the only object de- affected, might have known the 
 
 clared in the articles of association fact." Crawford v. The Prairie 
 
 is, to drain and improve the prairies Creek Ditching Association, 44 Ind. 
 
 and swamp lands in township 24, 362. 
 
 range 10. The manner of accom- ^ O'Reiley ». The Kankakee Val- 
 
 plishing the object proposed is not ley Drainage Co., 32 Ind. 169; Mul- 
 
 stated. There is no reference made ligan v. The State, 60 Ind. 211. 
 
 to a ditch. The commencement, ' Crawford v. Prairie Creek Ditch 
 
 course and terminus of the ditch Asso., 44 Ind. 362. 
 
490 
 
 THE LAAV OF ASSESSMENTS. 
 
 description last quoted, leaves it uncertain what particular 
 lands are included or intended to be.^ But where the 
 description is such that persons interested may be enabled 
 therefrom with reasonable certainty to form an opinion 
 regarding their interests therein, it will be sufficient.* 
 
 Sec. 333. jurisdiction— acquired after recording articles of 
 Association. — Recording articles of association "is a condi- 
 tion precedent to the investment of corporate powers upon 
 tli3 company." Until that is done the association is not a 
 corporation and has no power to levy an assessment. A 
 complaint in an action brought to recover an assessment 
 must aver that the articles of associatipn were recorded in 
 the proper county before the assessment was levied.^ 
 
 Sec. 334. Surveys and estimates of costs and expenses — 
 right of way, &c. — The statute in Indiana provides that. 
 
 « Smith V. The Duck Pond Ditch- 
 ing Asso., oi Ind. 238. 
 
 "About." One of the lines of the 
 I'oute was described in the following 
 language: "Thence north on said 
 middle line about twenty rods, to the 
 center of said section." In ruling 
 \ipon an objection, that the use of the 
 word "about" rendered the descrip- 
 tion uncertain, the court held that 
 the use of this word, " taken in con- 
 nection with the words restraining 
 and limiting its meaning, does not 
 materially impair the certainty of 
 the description." Corey b. Swagger, 
 74 Ind. 212. 
 
 9 Milligan v. The State, 60 Ind. 207. 
 
 ^ Where the articles of association 
 ■were left for record and taken away 
 under the belief that they were re- 
 corded, the assessment made before 
 the actual recording will be invalid, 
 and this will be so notwithstanding 
 the statement of the recorder that 
 they are recorded. The New Eel 
 Kiver D. A. u. Durbiu, 30 Ind. 176. 
 
 In passing on this point, the court 
 said: "That the facts may show 
 that the recorder was more at fault 
 for the failure to record than the di- 
 
 rectors, but it does not fill the re- 
 quirement of the statute, nor make 
 the association a, legal corporation 
 prior to the time the articles were in 
 fact recorded." The complaint in 
 an action for assessments must con- 
 tain a statement of the facts which 
 show a substantial compliance with 
 the statutory requirements author- 
 izing the company to make the as- 
 sessment. Combs V. Etter, 49 Ind. 
 53.5. 
 
 A statement by the drain commis- 
 sioner that he " gave the notice re- 
 quired by the statutes, to the parties 
 interested in said water course," is 
 not sufficient to give jurisdiction. 
 Wright V. Drain Commissioner, 44 
 Mich. 559. 
 
 " An assessment is a corporate act 
 and could not be legally done until 
 after the articles of association were 
 recorded; the complaint should have 
 shown affirmatively that the condi- 
 tion precedent had been performed 
 before the assessment was made, 
 and that for this fatal omission the 
 judgment must be reversed." Mc- 
 Intire v. The McLain D. A., 40 Ind. 
 105. 
 
DRAINAGE ASSESSMENTS. 491 
 
 " Before the actual construction of the work shall he be- 
 gun, surveys of it and estimates of its cost shall be made ; 
 and the appraisers' schedules of assessments returned to 
 the secretary, and if the estimated cost of the work shall 
 exceed the aggregate amount of the assessments, the work 
 shall not be further prosecuted.^ Under this section it has 
 been decided that a complaint for enforcing an assessment 
 is defective for not alleging a survey and estimate and for 
 not showing that the estimated cost would not exceed the 
 aggregate assessments.^ It_ is not necessarj^ however, that 
 the corporation shall have acquired the right of way before 
 collecting an assessment. " The question of the riglit of 
 way," (Large v. The Keen Creek Draining Company,^) 
 " has no connection with that of enforcing the assessment. 
 The company had the power to procure the right of way, 
 either by purchase or by having the damages assessed and 
 paying therefor, if, indeed, the question was not settled in 
 the assessment of benefits. In any event the fact that the 
 right of way had not been procured would not bar the suit 
 to compel the payment of the assessments." A further rea- 
 son may be found in the 6th section of the act which pro- 
 vides for re-assessments, "when and as often as it shall 
 become necessary or desirable to re-assess any tract of land 
 for the correction of any mistake, or to enable the company 
 to appropriate any part of the same for right of way, or any 
 stone, timber, gravel or other material for construction of 
 the work," and which may be done as often as desirable by 
 the company, for necessary and legitimate purposes. Such 
 re-assessments when made constitute a lien upon the land 
 and have the same force and effect as original assessments. 
 (See Large v. The Keen Creek Drain. Co.*) Nor is it neces- 
 sary to allege the completion of the drain or ditch. " Such 
 
 1 Section 7, act of 1869. (Ind. ) be found tlie proceedings must be 
 
 ^Cost exceeding benefits. When dismissed. Dukes v. Worliing, 93 
 
 proceedings are commenced con- Ind. 504; Echison Ditcli Asso. v. 
 
 cerniiig drainage it is competent to Hills, 40 Ind. 410; Smith v. The 
 
 oppose the same on the ground Duck Pond Ditch. Asso., 45 Id. 96. 
 
 "that it is not practicable to ac- ^ 30 ind. 265-6. 
 
 complish the proposed drainage * Etchison Ditching Association v. 
 
 without an expense exceeding the Hills, 40 Ind. 409. 
 
 aggregate benefits," and if that fact 
 
492 THE LAAV OF ASSESSMENTS. 
 
 completion is not a condition precedent to the right to col- 
 lect assessments."^ A different rule, as to the right of way, 
 is declared in Michigan.^ Tlie same ruling was made in 
 California,^ and is laid down as the rule in Cooley on Taxa- 
 tion.^ ^ 
 
 Sec. 335. Description of Land assessed — posting Notice of 
 Assessment: Equalization. — In the state of Indiana the sched- 
 ule of assessments when completed and verified must be filed 
 in the recorder's office of the county and from the date 
 of filing, the assessment becomes a lien upon the lands 
 assessed. The time within which an assessment schedule 
 must be filed after it is made, is not regarded as material, as 
 it becomes a lien only after it is filed, and it is the duty of 
 the secretary of the corporation to post a notice in a con- 
 spicuous place in the county recorder's office, stating the 
 date of the filing; and any party feeling aggrieved by the 
 assessment, may within thirty days thereafter appeal there- 
 from to the Circuit or Common Pleas Court of the county/ 
 The description of the land assessed must be as certain as 
 that contained in a mortgage of real estate. The assessment 
 constitutes a lien on the land and is enforced hj a foreclos- 
 ure of the lien, the proceedings being similar to the fore- 
 closure of a mortgage or mechanic's lien. The description 
 
 6 The Eel River D. A. v. Topp, 16 « Cooley on Taxation, 97. 
 
 Ind. 243. ° In the case of Delawter v. The 
 
 "In Butler v. Saginaw County (26 Sand Creek Ditch. Co., 26 Ind. 408, 
 
 Mich. 29), the court said: . . . "for the court said: " There seems to be 
 
 the purposes of this application the no such requirement In the statute." 
 
 relators admit that some of the Whether this provision had been 
 
 drains are constructed upon private stricken out by amendment does not 
 
 property, where a right to keep them appear. In Smith ». The Duck Pond 
 
 open has never been obtained; that Ditching Asso., 54 Ind. 235, it was 
 
 the drains are therefore private held that the fact that the drain was 
 
 property; and it is averred as a fact commenced before the estimate of 
 
 that they were constructed for the cost of construction and of benefits, 
 
 benefit of the lands drained, and not does not invalidate the assessment, 
 
 because the lands injuriously affect- The complaint must allege that the 
 
 ed the health of the inhabitants, benefit assessed on the lands affected ' 
 
 The admitted case is consequently, by the drain is exceeded by the esti- 
 
 to the extent of such drains, one of mated cost of construction. Smith 
 
 purely private concern." v. Dutch Pond Association, 54 Ind. 
 
 ' Pacific Bridge Company v. Kirk- 235. 
 
 ham, decided June 4th, 1880, No. ^ Chase ». The Arctic Ditchers, 43 
 
 6753 (Cal.) Unreported case. Ind. 76. 
 
DKAIKAGE ASSESSMENTS. 493 
 
 must therefore be such as will make the Hen, notice, and in 
 the judgment for its sale, enable the sheriff to identify it in 
 a sale of the land.^ Where a portion of a subdivision of a 
 quarter section is included in the list of lands benefited, it 
 is not a sufficient description to describe the lands as a 
 given number of acres of such subdivision.^ This is less 
 certainty of description than is required in a general or 
 special tax, where the description is required to be complete 
 within itself and cannot be aided by reference to documen- 
 tary or other descriptive matter aliunde, nor by oral evidence, 
 excepting in the state of Illinois, Wisconsin, and perhaps 
 Nebraska ; and excepting, for the purpose of identifying the 
 land with the description. 
 
 Sec. 336. Defenses— how far limited. — The defenses which 
 one not a member of the company or corporation may make 
 to an attempt to enforce an assessment are unlimited. He 
 may deny the existence of the corporation ; he may deny 
 that the work is of public utility; or that his land is or will 
 be benefited to the amount of the assessment or any part of 
 it, and set up any defense that will, if true, defeat the assess- 
 ment; and whether a member or not, any defense may be 
 interposed that will defeat the assessment.^ Where the 
 objection to the appraisement was that it was not verified 
 
 2 The Eel Eiver Draining Asso. ». scribed not only by quantity but by 
 
 Topp, 16 Ind. 243 ; The Jordan metes and bounds or other definite 
 
 Ditching and Draining Association description. Atwell v. Zeluff, 26 
 
 13. Wagoner, 33 Iiid. 51. Mich. 121. 
 
 ' Where the assessment set out ^ The Eel Eiver Draining Associa- 
 two government subdivisions — one tion ». Topp, 16 Ind. 244; Larger, 
 a forty the other an eiglity acre tract, The Keen Creek Dr. Co., 30 Ind. 265. 
 and in a column headed " acres Tlie decision of these cases is based 
 benefited" was written opposite such on a section of the statute reading 
 description, " ten acres," it was held in these words: "In any such ac- 
 in Michigan, that the description tion the defendant may, if not a 
 was void for uncertainty; that "As member of the association, deny 
 none but the parcels benefited can that the work is of public utility, or 
 be sold or charged, and as these rolls that he is, or will be, benefited 
 •set forth distinctly that only an un- thereby to the amount of the as- 
 defined ten acres in each tract is sessment, or any part of it ; and he 
 benefited, the description is void for may insist, whether a member or 
 uncertainty and the tax is therefore not, upon any other defense to show 
 void." When less than a legal sub- that he ought not to pay the assess- 
 division is benefited, the tract re- ment, or any part of it." These 
 turned as benefited must be de- cases stand opposed to the case of 
 
494 
 
 THE LAW OF ASSESSSIEXTS. 
 
 and the appraisers' oath read — " the foregoing appraisement 
 is correct to the best of our judgment " — and the statutory 
 oath read — "the same is in all respects a true assessment to 
 the best of our judgment and belief — it was held to be a 
 substantial compliance with the statute. Mere irregulari- 
 ties occurring after jurisdiction has been acquired will not 
 invalidate the assessment.^ A defense "that the assessment 
 greatly exceeds in amount the benefits wliich would accrue 
 from the construction of the drain to the south part of said 
 land " cannot be interposed to defeat the assessment but 
 only to reduce the amount to actual benefits and to confine 
 the lien to the part benefited or to be benefited by the 
 drain.^ It is not necessary, in the schedule of benefits and 
 injuries, if the appraisers return that no lands will be in- 
 jured — to return any further description as to lands injured ; 
 
 Moffit V. The Midsker Draining As- 
 sociation, 48 Ind. 107, wherein the 
 court said: "On the trial the de- 
 fendant offered to prove that tlie 
 construction of tlie ditcli did not 
 benefit his land, but injured it; but 
 the evidence was refused," on which 
 error was assigned, but the court, in 
 reply to the assignment of this as 
 error, said: "No authority is cited 
 by appellant. The statute provides 
 a remedy {3 Ind. Stat. 222, § 0), by 
 appeal for any person aggrieved by 
 an assessment, and we think that 
 was the remedy of the appellant, 
 and not the one sought in this case." 
 The case of Calking v. Baldwin, 4 
 Wend. (671), Is cited, wherein it is 
 laid down that when a remedy Is 
 provided for damages arising out of 
 an act authorized by statute, the 
 remedy provided by the statute must 
 be pursued. (See post, 337.) In 
 California, a defense that the lands 
 are not swamp or overflowed, is con- 
 sidered as passed upon when the peti- 
 tion for the formation of the district 
 is heard, and cannot be made after- 
 wards a defense to an action to en- 
 force an assessment. People v. 
 Hagar, 52 Cal. 182-3. 
 
 ''Large v. The Keen Creek Drain- 
 ing Co., 30 Ind. 265. When the 
 petition is sutBcient to confer juris- 
 diction, mere irregularities after- 
 wards occurring cannot be invoked 
 to enjoin the collection of the as- 
 sessment. "The presumption is in 
 favor of the legality and regularity 
 of the proceedings of the board of 
 commissioners, and in the absence 
 of averments showing that tliey 
 acted in bad faith, or that their 
 conduct was such as to injure appel- 
 lants, that presumption operates in 
 favor of the proceedings of that tri- 
 bunal." Canldwell v. Curry, 93 Ind. 
 364. In the state of Michigan, drain- 
 age taxes must be entered upon the 
 assessment roll as a separate and dis- 
 tinct tax, in such manner as to 
 identify by name or otherwise, the 
 particular drain for which the tax is 
 laid; and the tax when collected 
 must be kept by the town treasurer 
 as a separate fund, applicable to the 
 payment of orders properly drawn 
 thereon. If this be not done the 
 tax cannot be enforced. Dunning 
 V. Calkins, 17 N. W. Rep. 54. 
 
 ' The New Eel River Draining As- 
 sociation V. Durbin, 30 Ind. 175-177. 
 
DKAIXAGK ASSESSMENTS. 495 
 
 and if an}- land lying along or within the line of the drain 
 or ditch will not be benefited, no return need be made of 
 such lands.* 
 
 Sec. 337. Defenses — not necessary to set out articles of as- 
 sociation ; question of benefits may be made an issue ; descrip- 
 tion of Lands claimed to have been benefited. — In an action to 
 enforce payment of a drainage assessment in Indiana, it is 
 not necessary to set out the articles of association; the 
 drainage act provides that the courts shall take judicial 
 notice thereof. "The judge before whom the question is 
 presented, rriust determine from an inspection of the county 
 records whether the corporation has been legally organized, 
 and in the absence of a showing in the record to the con- 
 trary," it will be presumed that the action of the lower 
 court in the determination of the question was correct. 
 In Indiana, the defendant may present an issue as to 
 whether any of his land was benefited and the amount, for 
 the reason tliat the amount of assessment cannot exceed 
 the amount of benefits to the land assessed, and no oppor- 
 tunity is provided for making such showing. Where in the 
 same state 80 acres were assessed a certain amount, and 
 there was a general verdict fixing the amount in money, of 
 benefits, and a special verdict that only 30 acres of the land 
 was benefited, it was held that the general verdict would 
 attach the lien to the whole 80 acres, while by the special 
 verdict the lien would attach to onlj- 30 acres, and that for 
 want of a description of the land benefited to which only 
 the lien could attach, there could be no judgment on the 
 verdict.^ 
 
 A complaint to enforce an assessment need not set out 
 the beginning and terminus of the ditch, nor, as already 
 stated, the articles of association. A plaintiff is not re- 
 quired to state more than facts enough to constitute a 
 cause of action in' his favor, against the defendant. He is 
 not required to aver matters necessarj' to enable the defen- 
 dant to know what defense lie ought to make. "Each 
 party is, by the rules of pleading, left to make his own 
 case upon the record, and is only required to state it with 
 
 ■• The Pigeon Creek Draining As- ^ Delawter v. The Sand Creek 
 Bociation v. Lagrange, 41 Iiid. 272. Ditching Co,, 26 Ind. 408-9. 
 
496 THE LAW OF ASSESSMENTS. 
 
 such clearness that his antagonist may know M'hat he has 
 to meet."^ But if the articles of association do not give 
 the beginning and terminus of the ditch, the assessment 
 will not create a lien.^ In New York an original action 
 cannot be maintained to review, for damages caused by the 
 draining of the Cayuga marshes. The only remedy is 
 appeal or by application as provided by statute, to the 
 canal board.* 
 
 Sec. 338. Trial by Jury. — It has been held that the right 
 of trial by jury of questions of fact arising in an action to 
 enforce a tax or special assessment, does not attach, as a 
 right, incident to the trial. Tlie same principle pertains to 
 tlie trial of issues involved in drainage proceedings. In 
 Indiana, the statute expressly provided that " questions of 
 fact shall be tried by the court without a jury," in matters 
 pertaining to drainage. The constitution of the state pro- 
 vided that " In all civil cases the right of trial by jury 
 shall remain inviolate." The term " civil cases," when 
 used in constitutions, mean those civil actions which are 
 known to the common law, such as covenant, debt, assump- 
 sit, &c., but does not include remedies in tax and assess- 
 ment cases, specially provided for by statute. The power 
 which can create special rights may provide the remedy for 
 their enforcement and the mode of trial in all proceedings 
 necessary or incident thereto.^ 
 
 Sec. 339. Defenses — right of 1)737 — how acquired — Statute 
 to be strictly pursued — delay in. claiming damages — -when not a 
 
 ^The Jordon Ditching and Drain- ages made a division of the cost of 
 ing Association v. Wagoner, 33 Ind. construction of the ditch among the 
 51. This case re-affirms the doctrine owners of the land affected." The 
 that tlie description which is sutfi- statute requires that this shall be 
 ciently certain when contained in a done. Acts 1877, p. 156. Bogart c. 
 mortgage, is sufficient in an assess- Castor, 87 Ind. 244. 
 ment for drainage. In a recent case ' Smith v. Dutch Pond Associa- 
 in Indiana, it was held that in an tion, 54 Ind. 235. 
 action to recover an assessment for * People v. Wasson, 64 N. Y. 167. 
 drainage, it was necessary to allege ' Anderson v. Caldwell, 91 Ind. 
 all the facts required by the statute 451; The Indianapolis & Cumber- 
 to give the right of action, and that land Gravel Road Co. 0. Christian, 
 these facts must be proved at the 93 Ind. 362; Pennsylvania R. R. Co. 
 trial if desired. Bate v. Sheets, 50 v. Lutheran Congregation, 53 Pa. St. 
 Ind. 335. It must be alleged " that 445, and cases cited, 
 the appraisers of benefits and dam- 
 
DEAIXAGB ASSESSMEKTS. 
 
 497 
 
 waiver— Estoppel. — Right of way for a drain, levee, or irri- 
 gating ditch must be acquired through the right of eminent 
 domain. This right cap only be acquired and exercised by 
 or under authority of the state, and under statutory pro- 
 ceedings. Inasmuch as such proceedings result in taking 
 property held in private ownership without the consent of 
 the owner, the provisions of the statute for acquiring the 
 right must be strictly pursued.^ The power of the state, 
 not only in the exercise of eminent domain, but to promote 
 the public welfare by draining wet, swamp, or overflowed 
 lands, which, in their natural condition, are idle and unpro- 
 ductive, or are injurious to the health of a portion of the 
 community, is plenary, and is not limited by reason of the 
 original source of title to any of such lands. It is, there- 
 
 ' In the proceedings to locate a 
 drain or ditch for draining purposes 
 in Indiana, damages for the right of 
 way is included in the assessment 
 for damages and benefits. In Cali- 
 fornia, a statute provided for aboard 
 of water commissioners for each 
 township in Los Angeles County to 
 locate irrigating ditches, and upon 
 petition by a majority of the persons 
 of the township liable to work on 
 water ditches, authorized and em- 
 powered the board to lay out the 
 ditch and then confer with the own- 
 ers of the land over which the ditch 
 was laid out for the right of way, 
 and failing to agree, they (the peti- 
 tioners) to appoint an arbitrator, the 
 owner of the land a second, or fail- 
 ing to do so the county judge to 
 make such appointment, and the 
 two so appointed to appoint a third, 
 and the three to appi-aise the dam- 
 ages to result to property owners 
 from the construction of the ditch, 
 and report to the county court. Un- 
 der this act proceedings were com- 
 menced to lay out a water ditch, and 
 while the proceedings were pending 
 tlie township was divided and the 
 contemplated water ditch included 
 within the new township. The pro- 
 ceedings had reached the point of 
 32 
 
 failure to agree with a land owner, 
 and the appointment by the board of 
 water commissioners of an arbitra- 
 tor and the failure of the land owner 
 to appoint another, when the new 
 township was created. A petition 
 was then presented to the county 
 judge to continue the proceedings, 
 and to appoint an appraiser or arbi- 
 trator to represent the land owner, 
 which was done, and he and the 
 other arbitrator appointed a third, 
 and the three made an award and 
 reported to the county court. The 
 question of the legality of the award 
 coming before the Supreme Court, it 
 was decided that: "The proceed- 
 ings to acquire the right of way are 
 special proceedings, and the statute 
 must be strictly pursued. There is 
 no provision in the statute authoriz- 
 ing a township, created as Azusa 
 township was, to continue proceed- 
 ings initiated by the commissioners 
 of the township out of which the 
 new township was carved. Proceed- 
 ings must be commenced by the new 
 township, the first step being the 
 presentation of a petition, signed 
 by the requisite number of persons 
 in that township. Dalton v. Water 
 Commissioners, 49 Cal. 2^2. 
 
498 
 
 THE LAV OF ASSESSMEKTS. 
 
 fore, no defense to the exercise of such power by the state, 
 or as delegated to associations or corporations, that the title 
 to any of the lands to be affected was originally obtained 
 from a foreign government while the owner thereof.^ Mere 
 delay in claiming damages will not always operate as a 
 waiver.^ A party will be estopped from objecting that a 
 ditch was not regularly laid out by a drain commissioner, 
 where, after making objections, he constructs part of the 
 ditch, and acquiesces in it for several years. Tf a ditch, by 
 common consent, has been dug as a neighborhood drain, 
 and has remained open for a series of years, it is subject 
 to be governed by the same rules that apply to other water 
 courses of like character.^ 
 
 ^ The power of the legislature over 
 the subject matter ol local improve- 
 laents intended to promote the pub- 
 lic good, is well expressed in a case 
 pertaining to the reclamation of 
 swamp and overflowed lands. The 
 jjosition was taken that it was not 
 ■within the power of the legislatui-e 
 (o compel a party deraigning his 
 title from other source than the 
 state, as swamp and overflowed 
 lands, to reclaim his lands at his 
 own expense, but in reply the court 
 said: "Tliatit is within the power of 
 the legislature to compel local im- 
 provements which, in its judgment, 
 will promote the health of the peo- 
 ple and advance the public good, is 
 unquestionable. In the exercise of 
 this power it may abate nuisances, 
 construct and repair highways, open 
 canals for irrigating arid districts, 
 and perform many other similar 
 acts for the public good, and all at 
 ' lie expense of those who are to be 
 chiefly and more immediately bene- 
 ■fited by the improvement. The con- 
 stitution of the state is not a grant, 
 but a limitation of power; and when 
 in act of the legislature is called in 
 question as repugnant to the consti- 
 tution, those who assail it on this 
 ground must specify tljc particular 
 provision of that instrument which 
 
 is violated." Hagar v. Supervisors 
 of Yolo County, 47 Cal. 2-33. 
 
 Delay in claiming damages. Where 
 the construction of a ditch had the 
 effect of so lowering a lake upon 
 which the lands of another fronted, 
 changing what had been " a thing 
 of beauty," and afforded a safe and 
 easy watering place for watering 
 stock and other conveniences into 
 an unsightly and sickening mud- 
 hole, unsafe and dangerous, and 
 during the progress of the work the 
 owner of these lands was assured 
 that the opening of the ditch would 
 have no such effect, by delaying to 
 claim damages until after the work 
 was completed and the effect of it 
 determined, he did not lose his right 
 to claim damages. Wright ». Drain 
 Commissioners, 44 Mich. 5.59. A 
 land owner, by connecting with a 
 sewer constructed for drainage pur- 
 poses, does not thereby acquiesce in 
 an assessment, otherwise illegal, laid 
 upon lands claimed to have been 
 benefited for the purpose of paying 
 the cost of the sewer, and he is not, 
 by reason of any use he may make 
 of the sewer, estopped f i-om setting up 
 the illegality of the assessment. New 
 Brunswick Rubber Co. «. Commis- 
 sioners (9 Vroom) 20 Amer. R. 384. 
 8 Freeman !). Weeks, 45 Mich. 336. 
 
DEAITSrAGE ASSESSMENTS. 499 
 
 If, however, shortly after the opening of the ditch, a 
 party claimed and exercised the right of laying a fence in 
 or over the ditch, causing an obstruction to the same, it 
 would at rhost be but a limited consent and acquiescence. 
 If no new act were done, and there was a passive acqui- 
 escence in the continuance of the obstruction, no action 
 ■would lie therefor, even though the natural sinking of the 
 rails would increase the obstruction.* 
 
 Sec. 340. Uniformity — all lands benefited must be assessed. — 
 The same rules of uniformity, so far as applicable, obtain in 
 assessments for reclamation purposes as in other cases of 
 taxation for general or special purposes. The assessment 
 is authorized only on the ground of a public benefit and a 
 public necessity, and the expense, as a matter of justice, 
 should be borne by the owners of all the lands benefited in 
 proportion to benefits. To omit a part of the lands bene- 
 fited would be to increase the burdens of the others. It was 
 held, under the Illinois Drainage Act of 1871, that it was 
 illegal to assess the entire costs and expense of construct- 
 ing a drain on one tract of land, leaving out others which 
 were also benefited by the construction of the same drain ; 
 that each tract benefited should be assessed with its pro- 
 portionate share, and this ruling, tested by the doctrine of 
 uniformity, could have been no other way.^ The appraisers, 
 by their appraisements, must show that they have included 
 all the lands, the intrinsic or market value of which, in 
 their judgment, will be affected by the contemplated drain- 
 age or i-eelamation works. " If any can be omitted, why 
 not a fourth, a third, or the half of them ? This omission 
 is not a mere irregularity or informality which is cured by 
 
 In a case where a drain was to be should not, after the ditch has been 
 
 constructed and the work of con- constructed in part and his lands 
 
 struction apportioned among those benefited thereby, as the return 
 
 interested, and a portion of it was shows to be the fact, come into 
 
 set off to an owner of land who was court and be heard to complain." 
 
 present, "and expressed his entire (Citing Koderiger v. Drain Coin'rs., 
 
 satisfaction at the part apportioned 40 Mich. 745;) Mabee v. Drain 
 
 to him, and promised that he would Com'rs. and Others, 8 K. W. E. 
 
 construct his part as soon as anyone 578 (Mich.) 
 
 else, and then and there tried to let * Freeman v. Weeks, 48 Mich. 257 
 
 out a job for the same," it was held, > Gilkerson v. Scott, 76 111. 509. 
 that "A party thus consenting 
 
500 THE LAW OT? ASSESSMENTS. 
 
 the fifteenth section, being a wide departure from the 
 statutory requirements." ^ 
 
 2 Bannister v. The Grassy Fork doubtless be fatal to the assessment. 
 
 Ditching Association, 52 Ind. 180-2. Kevins &c. Draining Co. v. Alkire, 
 
 An Intentional omission to assess 36 Ind. 192. 
 part of the land beilefited would 
 
SWAMP LAND DISTKICTS IN CALIFORNIA. 601 
 
 CHAPTER XXV. 
 
 SWAMP LAND DISTRICTS IN CALIFORNIA. 
 
 Sec. 341. Organization of— petition and publication of. — 
 
 Under the system of reclamation of swamp and over- 
 flowed lands in California, and which will be separately' 
 considered in this chapter, it is provided by the statutes 
 and Political Code of that state, that whenever the holders 
 of evidence of title representing one half or more of any 
 swamp, overflowed, salt, matsh or tide lands, susceptible of 
 one mode of reclamation, desire to reclaim the same, they 
 may present to the board of supervisors of the county in 
 which the lands or the greatest portion thereof are situ- 
 ated, a petition, setting forth that they desire to adopt 
 measures to reclaim the same ; the description of the land 
 by legal sub-divisions or other boundaries ; the quantity 
 sold by the government and the quantity remaining unsold; 
 the whole number of acres in the contemplated district and 
 the number of acres in each tract sold, with the names of 
 the owners, if known. The petition, duly signed, must be 
 verified by one of the petitioners and published for four 
 successive weeks next preceding the hearing, in some news- 
 paper of the same county, or if none be published therein, 
 in some newspaper having a general circulation therein, 
 "and an afi&davit of such publication must be filed with 
 such petition." ^ When the land is situated in more than 
 one county, a copy of the petition must be forwarded to 
 the clerk of the board of supervisors of each county in 
 which any of the lands embraced in the contemplated dis- 
 trict lie, after which, such lands are not to be included in 
 any district thereafter formed in such county .^ ^ 
 
 1 §§ 3446, 3447, P. C. Cal. on that ground tliat its asBessments 
 
 2 § 3448 P. 0. Cal. were invalid; but the court, constru- 
 
 3 A swamp land district having ing this provision of the statute, 
 been organized embracing lands in used the following language: "The 
 two or more counties, it was objected fact that the lands may be situated 
 
502 
 
 THE LAW OF ASSESSMENTS. 
 
 Sec. 342. Petition— its requisites.— The petition, as already 
 shown, must be signed by the petitioners or their duly au- 
 thorized agents, and must show that petitioners are holders 
 of title or evidence of title representing "one half or more" 
 of one body of swamp and overflowed, salt marsh or tide 
 lands, susceptible of one mode of reclamation ; that the 
 greater portion of the lands are located in the county 
 wherein the petition is presented and a description of the 
 lands by legal subdivisions or other boundaries and the 
 number of acres in each tract in the proposed district, with 
 the names of the owners thereof, when known ; and when 
 not known such tracts to be designated as belonging to 
 unknown owners, "and designating as unsold any lands not 
 reduced to private ownership."^ The term "evidence of 
 
 in more than one county cannot af- 
 fect the power of the state to dele- 
 gate authority for the establishment 
 of a reclamation district to the su- 
 pervisors of the county containing 
 the greater part of the lands. Such 
 authority may be lodged in any board 
 or tribunal which the legislature may 
 designate." Hagar v. Keclamatiou 
 District No. 108, 4 Sup. Ct. Kep. 665 
 (Cal.); (s. c. Ill U. S. R. 701.) This 
 construction of this provision of the 
 statute was recognized and adopted 
 by the Supreme Court of California 
 ill a recent case. Reclamation Dis- 
 trict Ko. 108 V. Hagar, 4 Pac. Rep. 
 947 (Cal.) 
 
 ' The sufficiency of the petition in 
 the case of Hagar v. The Supervi- 
 sors of Yolo County (47 Cal. 223), 
 with respect to the matters required 
 to be stated therein, was discussed 
 and judicially determined. The pro- 
 ceeding was a writ of certiorari, to 
 review the action of the board of 
 supervisors, in determining the dis- 
 trict to be legally organized, and 
 recognizing its authority to levy 
 assessments. One of the signers 
 was a corporation, and the signa- 
 ture was the corporate name signed 
 by its president. There was nothing 
 
 in the petition to show that the 
 corporation was invested with the 
 right to hold real estate; but the 
 court held, on the authority of 
 Myers v. Croft (13 Wall. 29), that 
 there was no defect in this particu- 
 lar. There was no direct averment, 
 of the quantity of land sold, and of 
 the quantity remaining unsold ; but 
 it was averred "that the schedule 
 annexed states the several tracts of 
 land in said district, the number of 
 acres in each tract, and the names 
 of the owners thereof, so far as 
 known," and the court held, that, 
 while the petition might not stand 
 the test of a special demurrer, yet 
 in a proceeding by certiorari, and in 
 view of the serious consequences 
 which would probably result from 
 setting aside the proceedings of the 
 supervisors, and the further consid- 
 eration that a writ of certiorari is 
 addressed to the discretion of the 
 court, a favorable interpretation 
 ought to be given to this part of the 
 petition. The plaintiff in the case 
 had appeared before the board of 
 supervisors and interposed no objec- 
 tion to the sufficiency of thfe petition 
 there. The principal objection made, 
 was to including within a swamp 
 
SWAMP LAND DISTRICTS IN CALIFORNIA. 
 
 503 
 
 title " is vised to designate that class of lands, sold on a 
 credit and only a certificate reciting the terms of the sale 
 has been issued to the pui'chaser. It has also been con- 
 strued to include titles acquired from the Spanish and 
 Mexican governments (^post, § 348). 
 
 Sec. 343. Publication of the Petition ; necessary to give 
 Jurisdiction— what constitutes a "Week. — The publication of 
 tlie petition for four weeks previous to the hearing is neces- 
 sary to give the board of supervisors jurisdiction over the 
 subject matter contained in it. The code requires the 
 publication to be made for "four weeks next preceding the 
 hearing " — and this is construed to mean once each seven 
 days for that period — next preceding the hearing of the 
 petition." A week consists of seven consecutive days. It 
 is obvious that the petition could not be published for four 
 weeks next preceding its hearing unless it was published 
 
 land district, lands, the title to which 
 was not deraigned through the state 
 as swamp and overflowed lands, but 
 by a grant from the Mexican gov- 
 ernment, and on this point the court 
 held that there was nothing in the 
 act indicating an intention to con- 
 fine its operations to those lands ac- 
 quired under the Arkansas act, 
 granting all swamp and overflowed 
 lands to the state wherein situated, 
 but that it was general in its provi- 
 sions, and applied to all the swamp 
 and overflowed lands of the state. 
 
 The following is a copy of the pe- 
 tition in this case : " To the board of 
 supervisors of Yolo county, state 
 of California: The undersigned pre- 
 sent this petition and respectfully 
 show: That they desire to adopt 
 measures to reclaim the body of 
 swamp and overflowed lands de- 
 scribed in the schedule hereto an- 
 nexed, and for that purpose to form 
 a district to include the same. A 
 description of the lands your peti- 
 tioners propose to reclaim is set forth 
 by township, range, section and sub- 
 division of section in said schedule. 
 The number of acres in the whole of 
 
 said district is 74,085.87, acres, of 
 which your petitioners are holders 
 of certificates of purchase from tlie 
 state of California, and other evi- 
 dence of title to 47,279.87 acres, 
 being and representing more than 
 one half of all the lands within the 
 proposed district. That the lands 
 included within the limits of the 
 proposed district are situated in Yolo 
 and Colijsi counties, of which 
 40,805.35 acres are situated in Yolo 
 county, and 33,280.52 acres are situ- 
 ated in Colusi county. That the 
 schedule annexed states the several 
 tracts of land in tlie said district, 
 the number of acres in each tract, 
 and the names of the owners thereof, 
 so far as known. And that the said 
 body of land is susceptible of one 
 mode of reclamation. Wherefore, 
 &c. 
 
 (Signed) 
 
 "The Sacramento Valley Reclama- 
 tion Company. 
 
 By Wm. Blanding, Pres't. 
 Louis A. Gamett, 
 A. H. Rose, 
 Chas. F. Rbed. 
 
504 
 
 THE LAW OF ASSESSMENTS. 
 
 for four consecutive weeks — and inasmuch as the petition 
 could not be published for four consecutive weeks unless 
 it was published at least once a week for that period, and 
 bince the statute defines a week to be seven consecutive 
 
 The schedule annexed included copy of one township, is similar to 
 all the lands, the following being a the balance:— 
 
 SCHEDULE. 
 
 Township 11 Nobth, 1 East, Mount Diablo Meeidian. 
 
 Skc. 
 
 OWNEK. 
 
 Subdivision. 
 
 Aches. 
 
 11 
 
 A. H. Rose. 
 
 N. E. J- 
 
 160 
 
 2 
 
 do. 
 
 Whole. • 
 
 640 
 
 3 
 
 do. 
 
 E. i 
 
 320 
 
 3 
 
 do. 
 
 E. i of K. W. i 
 
 80 
 
 3 
 
 do. 
 
 X. W. i of N. W. i 
 
 40 
 
 12 
 
 L. A. Garnet. 
 
 N. 4 
 
 320 
 
 12 
 
 do. 
 
 N. i of S. W. i 
 
 80 
 
 12 
 
 do. 
 
 N. i of S. E. i 
 
 80 
 
 1 
 
 do. 
 
 Whole. 
 
 640 
 
 12 
 
 A. .T. Douns. 
 
 S. i of S.-W. i 
 
 80 
 
 a 
 
 J. F. Mason. 
 
 S. E. i 
 
 160 
 
 5 
 
 Henry Clawson. 
 
 K. E. i of S. E. i 
 
 40 
 
 4 
 
 Sac' to Valley Eeclamation Co. 
 
 N. W. i 
 
 160 
 
 4 
 
 do. 
 
 W. i of N. E. i 
 
 80 
 
 3 
 
 do. 
 
 S. W. i of N. W. i 
 
 40 
 
 4 
 
 do. 
 
 E. i of N. E. i 
 
 80 
 
 5 
 
 do. 
 
 W. i of N. E. i 
 
 80 
 
 5 
 
 do. 
 
 ■N. W. i of S. E. i 
 
 40 
 
 5 
 
 do. 
 
 N". W. i 
 
 160 
 
 5 
 
 do. 
 
 N. •} S. W. i 
 
 80 
 
 6 
 
 do. 
 
 N. E. i 
 
 160 
 
 6 
 
 do. 
 
 E. i of S. E. i 
 
 80 
 
 6 
 
 do. 
 
 N. W. i of S. E. i 
 
 40 
 
 6 
 
 do. 
 
 W. i of N". W. i 
 
 80 
 
 6 
 
 do. 
 
 N. E. i N. W. i 
 
 40 
 
 11 
 
 Fd'k Boneman. 
 
 N. W. i 
 
 160 
 
 10 
 
 John Roth. 
 
 K. i of N. E. i 
 
 80 
 
 11 
 
 Louis Ganthier. 
 
 S. W. i 
 
 160 
 
 5 
 
 H. H. Burr. 
 
 E. i of N. E. i 
 
 80 
 
 4 
 
 C. F. Reed. 
 
 N. W. i of S. W. i 
 
 40 
 
 3 
 
 T. W. Strowbridge. 
 
 N. E. i of S. W. i 
 
 40 
 
 12 
 
 Unknown. 
 
 S. i of S. E. i 
 
 80 
 
 13 
 
 do. 
 
 N. E. i of N. E. i 
 
 40. 
 
 Notwithstanding a corporation 
 may be a signer to a petition where 
 one is required for a local improve- 
 ment, the officers — president and 
 secretary — cannot sign the corporate 
 name without the consent and au- 
 thority of the board of trustees or 
 directors ; and if without the signa- 
 ture of such corporation, the neces- 
 
 sary number of signers would be 
 wanting, no jurisdiction over the 
 work would be acquired, and any 
 assessment made would be void. 
 This defense could be interposed 
 at any time when an attempt was 
 made to enforce the assessment or 
 take private property sold under it. 
 Mulligan v. Smith, 60 Cal. 223-22"). 
 
SAVAMP LAND DISTKICTS OF CALIFORNIA. 505 
 
 (1a}'s, it results that the petition could not have been pub- 
 lished for four weeks next preceding its hearing unless it 
 was published at least once every seven days for the period 
 of four weeks next preceding the hearing." ^ If intervals 
 of more than seven consecutive days intervene, there would 
 be a break in the time caused by such interval, and the 
 jurisdiction of the board of supervisors would not attach, 
 and the district would not acquire authority to levy or 
 collect assessments.^^ A different view was taken in the 
 case of Ronkerdoff v. Taylor's Lessee (4 Pet. 358-361), 
 where the publication was required to be " once a week," 
 and eleven days intervened between insertions, expressed 
 in the following language : " The words of the law are 
 ' once a week.' Does this limit the publication to a par- 
 ticular day of the week ? If the notice be published on 
 Monday, is it fatal to omit the publication until the Tues- 
 day week succeeding? The object of the notice is as well 
 answered by such a publication as if it had been made on 
 the following Monday. A week is a definite period of time, 
 commencing on Sunday and ending on Saturday. It was 
 published Monday, January the 6th, and omitted until 
 Saturday the 18th, leaving an interval of eleven days; still 
 the publication on Saturday was within the week succeed- 
 ing the notice of the 6th." When this notice has been 
 given and the district organized, other or further notice of 
 proceedings levying or making assessments is not required. 
 The provision for the enforcement of assessments is by suit 
 in a court of competent jurisdiction wherein process must 
 be issued and served as in other civil cases. In such suits 
 the persons whose property has been assessed and against 
 which assessment liens are sought to be enforced may inter- 
 
 1 Williams v. Sacramento County, having been occasioned by a change 
 58 Cal. 238; Williams v. Sacramento in the publication day of the news- 
 County, Id. 239. paper. Cass v. Bellows, 64 Amer. 
 
 2 People 1). Haggin, 57 Cal. 585. A Dec. 347. (s. c. 31 N. H. 501. ) A simi- 
 similar ruling was made where the lar ruling was made in Massachu- 
 publicalion was required to be " for setts, where less than a week inter- 
 three successive weeks," and the vened between the second and third 
 notice was published on the 2d, 12th publications. Bachelor v. Bachelor, 
 and 19th of the month, the excess of 1 Mass. 256. 
 
 seven days between the 2d and 12th 
 
506 
 
 THE LAW OF ASSESSMENTS. 
 
 pose any valid defense except those matters necessarily 
 determined upon the hearing of the petition.^" Such pro- 
 ceedings — the organization of a district, condemnation of 
 private land for right of way and necessary material, levy 
 of assessments after construction of reclamation works in 
 connection with the commencement and prosecution of suit 
 in a court of competent jurisdiction, are considered due 
 process of law by which private property may be taken 
 without the consent of the owner. ^ 
 
 2" (See ante, n. 336); People v. 
 Hagar, 52 Cal. 182-3; also post, 355, 
 n. 2. 
 
 3 Upon this point — notice to own- 
 ers of land assessed for reclamation 
 piirposes — the Supreme Court of 
 California has used the following 
 language: " After the formation of 
 the district no other or further no- 
 tice to owners is required to be 
 given, but proceedings are to be had 
 for the election of trustees, making 
 of by-laws, appointment of commis- 
 sioners, the estimate of works and 
 their cost, and the assessment of 
 such cost upon the lands of the dis- 
 trict; and no time, place or manner 
 is named for any opposition to be 
 made. If an assessment remains 
 unpaid, provision is made for the 
 bringing of an action against the 
 delinquent owner. The appellant 
 claims that the statutes are in con- 
 flict with the Fourteenth Amend- 
 ment of the Constitution of the 
 United States. Upon this point 
 the Supreme Court of the United 
 States and this court liave decided 
 adversely to the appellant." The 
 case of Davidson v. New Orleans, 
 96 U. S. 97, is cited as the case 
 wherein it has been ruled in the Su- 
 preme Court of the United States 
 that the provisions of the statutes 
 of California relating to reclamation 
 of swamp and overflowed lands are 
 not in conflict with the Fourteenth 
 Amendment. That was a proceed- 
 ing by petition, filed in a state coiirt 
 
 in Louisiana, to have an assessment 
 upon certain lands made for drain- 
 age and reclamation purposes homol- 
 ogated by the judgment of the court,. 
 The court refused the order of lio- 
 mologation, and set aside the enthe 
 assessment, with leave to plaintiffs 
 to present a new tableau. On ap- 
 peal, the Supreme Court of Louisiana 
 reversed the decision of the court 
 below, ordered the dismissal of the 
 oppositions, and decreed that the as- 
 sessments presented " be approved 
 and homologated, and that the ap- 
 proval and homologation so ordered 
 should operate as a judgment against 
 the property described in the assess- 
 ment roll, and also against the owner 
 or owners thereof." The case was 
 taken to the Supreme Court of the 
 United States, and the judgment of 
 the Supreme Court of Louisiana was 
 there affirmed. The principal point 
 discussed in the opinion rendered 
 was, whether the proceedings re- 
 sulting in the assessment, and the 
 proceedings had in the state court, 
 constituted due process of law au- 
 thorizing the taking of private prop- 
 erty for public use. Three objections 
 were urged to the assessment: 1. That 
 the legislature had no right to organ- 
 ize a private corporation to do the 
 work, and, by statute, to fix the 
 price at which the work should be 
 done. 2. That the price so fixed is 
 exorbitant. 3. That there may be 
 a surplus collected under the assess- 
 ment beyond what is needed for the 
 
SWAMP LAXD DISTRICTS IN CALIFORNIA. 
 
 507 
 
 Sec. 344. Hearing the Petition — approval and recording. — 
 If the board find, upon the hearing, that the statements 
 contained in the petition are true, and that no land has 
 
 work, which must In that event go 
 into the city treasury." In consid- 
 ering the first objection, whicli in- 
 volved the doctrine of " due process 
 of law," the court, speaking by Jus- 
 tice Miller, held that due process 
 of law does not necessarily imply " a 
 regular proceeding in a court of jus- 
 tice, or after the manner of such 
 courts." Proceeding further on this 
 ■ point, the court used the following 
 language as applicable to a tax or 
 assessment: "That whenever, by 
 the laws of a state or by state au- 
 thority, a tax, assessment, servitude 
 or other burden is imposed upon 
 property for the public use, whether 
 it be for the whole state or of some 
 limited portion of the community, 
 and those laws provide for a mode 
 of confirming or contesting the 
 charge thus imposed in the ordinary 
 courts of justice, with such notice to 
 the person, or such proceeding in re- 
 gard to the property as is appropriate 
 to the nature of the case, the judg- 
 ment in such proceedings cannot be 
 said to deprive the owner of his 
 property without due process of law, 
 however obnoxious it may be to 
 other objections. . . . This propo- 
 sition covers the present case. Be- 
 fore the assessment could be collected 
 or become effectual, the statute re- 
 quired that the tableau of assess- 
 ments should be filed in the proper 
 district court of the state; that the 
 personal service of notice, with rea- 
 sonable time to object, should be 
 served on all owners wh o were known 
 and within the reach of process, and 
 due advertisement made as to those 
 who were unknown, or could not be 
 found. This was complied with, and 
 the party complaining here appeared 
 and had a full and fair hearing in 
 the court of the first instance, and 
 
 afterwards in the Supreme Court. 
 If this be not due process of law, 
 then the words can have no definite 
 meaning as used in the constitu- 
 tion." Justice Bradley, specially 
 concurring, used the following lan- 
 guage as to the application of the 
 Fourteenth Amendment to questions 
 arising, upon attempts under state 
 laws to take private property for 
 public use: "... I think, there- 
 fore, we are entitled under the Four- 
 teenth Amendment not only to see 
 that there is some process of law, 
 but ' due process of law,' provided 
 by the state law when a citizen is 
 deprived of his property, and that, 
 in judging what is ' due process of 
 law,' respect must be had to the 
 cause and object of the taking, 
 wliether under the taxing power, 
 the power of eminent domain, or 
 the power of assessment for local 
 improvements, or none of these; and 
 if found to be suitable or admissible 
 in the special case it will be adjudged 
 to be ' due process of law,' but if 
 found to be arbitrary, oppressive and 
 unjust, it may be declared to be not 
 'due process of law.' Such exam- 
 ination may be made without inter- 
 fering with that large discretion 
 which every legislative power has of 
 making wide modifications in the 
 forms of procedure in each case, ac- 
 cording as the laws, habits, customs 
 and preferences of the people of the 
 particular state may require." Ba- 
 vidson V. New Orleans, 96 U. S. 99- 
 108. (See ante, § 251.) The case of 
 Reclamation District No. 3 v. Gold- 
 man, 4 Pac. Rep. 676 (Cal.) is cited 
 as the case deciding this question in 
 the Supreme Court of California, 
 and this case refers to Reclamation 
 District No. 108 v. Evans, 61 Cal. 
 104, where this question was specially 
 
508 
 
 THE LAW OF ASSESSMENTS. 
 
 been improperly included in, or omitted from the proposed 
 district, the same is approved, signed by the president of 
 the board, and attested by the clerk of the board. This 
 
 considered. At page 106 in this 
 case the court uses the following 
 language: " The point relied on by 
 the appellant is that the provisions 
 of the Political Code relating to the 
 assessment of lands within reclama- 
 tion districts are unconstitutional 
 and therefore void. They are said 
 to be unconstitutional because they 
 do not provide for any mode by 
 which a party assessed shall have 
 notice of the. proceeding, and an op- 
 portunity to object to the amount 
 charged against his land. Sec. 3456 
 provides that the commissioners ap- 
 pointed by tlie board of supervisors 
 must view and assess upon the lands 
 situated within the district a charge 
 proportionate to the whole expense, 
 iind to the benefits which will result 
 from such works of reclamation. No 
 assessment against any tract of land 
 can be enforced except by action to 
 wliich the owner of the tract must 
 lie made a party. (Pol. C. § 3466.) 
 Tiie judgment appealed from was 
 rendered in such an action, and to 
 such an action the Code does not 
 limit the defenses. If the provisions 
 of tlie Political Code are applicable, 
 and the proposition contended for is 
 correct, the appellant here could 
 liave shown that the sums assessed 
 against his property were not pro- 
 portionate to the benefits resulting 
 from the woriis of reclamation. It 
 has been repeatedly decided in tlie 
 Supreme Court of this state that the 
 legislature may establish an arbitrary 
 standard of estimating the amount 
 <if benefit derived by each tract of 
 land within an assessment district 
 declared to be benefited as a whole, 
 as by reference to the number of 
 front feet in the case of a street as-^ 
 sessment, or to the number of acres 
 in cases of reclamation. But for the 
 
 purposes of this decision we may as- 
 sume that the Code has not adopted 
 any such arbitrary method, but that 
 the assessment of the commissioners 
 must be made with reference to the 
 actual benefits to result to each tract 
 of land by reason of the works of 
 reclamation. It cannot be material, 
 however, that the land owner had 
 no notice before the proportional 
 benefit to his land was estimated by 
 the commissioners it in the subse- 
 quent action he has had his day in 
 court, with full opportunity to con- 
 test the charge, before it was de- 
 clared a lien upon his land, or a 
 judgment to be collected out of his 
 general property." Eeclamation Dis- 
 trict No. 108 V. Evans, 61 Cal. 106-7. 
 In a later case in the same court, 
 where this same point was agaui 
 presented, the case being an action 
 or suit to enforce a swamp land dis- 
 trict assessment, the court said: 
 " Where this opportunity to be heard 
 respecting the assessment is afforded 
 to the tax-payer in an action, there 
 has been given him all that the 
 guaranty of due process of law re- 
 quires and secures, and he has noth- 
 ing to complain of in regard to such . 
 process." Eeclamation District No. 
 3 V. Goldman, 4 Pac. Eep. 678. 
 (Cal.) In the case of Eeclamation 
 District No. 108 v. Evans, 61 Cal. 
 104, the court held that the benefits 
 assessed to each tract could not be 
 questioned in the action to enforce 
 the assessment lien. The theory of 
 the decision is that in the necessary 
 proceedings had for the organization 
 of the district, it was determined, 
 upon the approval of the petition, 
 that the lands would be benefited in 
 the full amount that it would cost to 
 reclaim them. Hence, without no- 
 tice or opportunity to be heard, the 
 
SWAMP LAND DISTEICTS OF CALIFOENIA. CO^ 
 
 Approval is to be noted on the petition, after which the 
 petition is to be recorded in tlie county recorder's ofBce, 
 and a certified cop}' forwarded to the state register.^ 
 
 Whether or not lands described in the petition are 
 swampy or overflowed, must be determined before the peti- 
 tion is approved. Where notice of the presentation ard 
 hearing has been given, and the petition has been approved, 
 as to all lands included therein, and as to all owners thereof, 
 whether or not they appeared at the hearing, this question 
 becomes res ailjudicata. It cannot afterwards be inquired 
 into or made the subject of defense to assessments for re- 
 clamation purposes.^ Any person interested may appear 
 and oppose the petition when it is presented.^ 
 
 Sec. 345. A S'wamp Land District — a public corporation — 
 powers of. — A swamp land, or reclamation district, is a 
 public corporation.^ It is organized for the government of 
 a portion of the state, w^ith regard to the drainage and pro- 
 tection from overflow of the lauds within its jurisdiction, 
 and to that extent its authority can not be controlled, even 
 by the legislature.^ Although such organizations involve 
 private interests, yet they are endowed with a portion of 
 
 land owner is concluded by the as- cost of the works of reclamation, a 
 sessment, whether a signer of the successful defense could have been 
 petition or not, except for fraud, made against the assessment, query ? 
 This ruling has been affirmed in two ^ Sections 3449-3450, P. C. Cal. 
 subsequent cases : Reclamation Dis- ^ Where a party appeared at the 
 trict 'So. 108 c. Evans, 61 CaL 106- hearing and made objections, but 
 107, and People v. Hagar, 4 Pac. did not make objection that his ovin 
 Rep. 951. (Cal. ) This may now be lands were not swampy nor over- 
 regarded as the established law in flowed but protested on other 
 California. (See ^jost, §§ 355,357.) grounds, and it was stipulated that 
 The effect upon the assessment roll all the facts stated in the petition 
 of the district, where the commis- and protest were true; it was held 
 sioners intentionally omitted a tract that he was afterwards estopped 
 not included within the reclamation from setting up as a defense that his 
 works nor benefited thereby, but lands were not swampy nor over- 
 withiu the district, was passed on flowed, and were improperly in- 
 in the case of Reclamation District eluded. People v. Hagar, 52 Cal. 
 No. 3 0. Goldman (4 Pac. Rep. 680, 182. 
 
 Cal.), and it was there held that such ^jjagar ». Supervisors of Yolo 
 
 omission did not invalidate the as- County, 47 Cal. 231. 
 
 sessment roll. (See post, § 357, n. 2. ) ^ Dean v. Davis, 51 Cal. 409; Peo- 
 
 Whether, if the omitted tract had pie u. Reclamation District No. 108, 
 
 been, under the same state of facts, 53 Cal. 348. 
 
 assessed a proportionate share of the ^ people v. Lynch, 51 Cal. 31. 
 
510 THE LAW OF ASSESSMENTS. 
 
 the political power of the state, and are distinguishable is 
 this respect from private corporations, which affect only 
 private or individual interests. Under the civil code of 
 California a corporation is defined to be "a creature of the 
 law, and has certain powers and duties of a natural per- 
 son." ^ Through the board of supervisors, who are its man- 
 aging agents, it may make contracts, incur debts, employ 
 servants and agents, and perform many other acts which 
 pertain to natural persons.* To constitute a public cor- 
 poration it is not essential that it shall exercise all the 
 functions of government within the district. School dis- 
 tricts and road districts are invested with a corporate char- 
 acter, " the better to perform within the locality (each) its 
 special function, which is indicated by its name."® lb 
 possesses the right of eminent domain to secure the right 
 of way for its levees and ditches, and must have acquired 
 such right before a valid assessment can be made.^ 
 
 Sec. 346. Forming a ne-vw District out of one already or- 
 ganized. — If the holders of certificates of purchase or patents 
 for land within an organized district formed prior to May 
 28th, 1868, and in which the lands have not been reclaimed, 
 desire to have their lands set off from such district, they 
 may become organized into a separate district : but they 
 must all join in the petition and must own all the Innd to 
 be comprised within the district. The petition must, in 
 addition to the matter necessary in a petition to originally 
 organize a district, contain the further averment th^t the 
 lands of the petitioners are capable of an independent mode 
 of reclamation. It will be seen that a petition for the for- 
 mation of a district out of one already formed, requires 
 that the petitioners hold certificates of purchase and patents 
 for, and are the owners of all, instead of a majority of all 
 the land in the contemplated district. These are jurisdic- 
 tional facts, and when they are not stated in the petition, 
 the organization of the district is a void proceeding.^ 
 
 Sec. 347. District when organized— may make By-Laws ; 
 elect a Board of Trustees to manage affairs. — "After the ap- 
 
 8 Section 283, C. C. Cal. e gee ante, § 334, n. 6, 7, 8. 
 
 * Dean v. Davis, 51 Cal. 410. ^ Kalston v. Board of Supervisors, 
 
 6 Dillon on Muni. Cor. § 100. 51 Cal. 592. 
 
SWAMP LAND DISTEICTS IN CALIFOENIA. 511 
 
 proval of the petition," the district becomes organized as 
 a swamp land district, and the petitioners are thereafter 
 authorized and empowered to make bj''-laws which must be 
 signed by petitioners owning a majority of the land in- 
 cluded, holding by certificates of purchase or by patent, 
 and which are also to be ' recorded in the county recorder's 
 office. They are also authorized and empowered to elect 
 three of their number to act as a board of trustees to man- 
 age the affairs of the district.^ The board thus elected 
 have power to elect one of their number president of the 
 board and to employ engineers to survey, plan, locate and 
 estimate the cost of the work necessarj' for reclamation, 
 and the land needed for right of way, including drains, 
 canals, sluices, water-gates, embankments and material for 
 construction, and to construct, maintain and keep in repair 
 all works necessary to the object in view.^ The board of 
 supervisors, after plans and estimates have been adopted 
 and reported to them have the power and it is made their 
 duty to appoint three commissioners, residents of the county 
 in which the district or some part thereof is situated, to 
 view and assess upon the lands within the district, a charge 
 proportionate to the whole expense and to the benefits 
 which will result from such reclamation works, and to be 
 collected and paid into the county treasury, to the credit 
 of the district and to be disbursed for its reclamation.^ 
 
 Sec. 348. Qualification of Petitioners and Voters. — The 
 qualifications of petitioners and voters are the same ; they 
 must be owners of land within the district, holding title ^ 
 by certificates of purchase, patent or "other evidences of 
 title." ^ It is the petitioners only who are entitled to vote 
 at the election adopting by-laws and electing trustees of the 
 district.^ " Other evidences of title " would include lands 
 owned by title derived from the Spanish and Mexican gov 
 
 1 Sections 3452, 3453, P. C. Cal. under the 32d section of the act of 
 
 2 Section 3454, P. 0. Cal. 1867-8, under which act a district 
 5 Section .3456, P. C. Cal. was organized. Whilst the qualifica- 
 
 1 Stat. Cal. 1867-8, p. 575, § 3452, tions of petitioners were the same in 
 P. C. Cal. this act as above stated, the 32d sec- 
 
 2 A question arose as to the quali- tion, providing for the qualifications 
 fications of voters upon the adoption of voters upon the adoption of by- 
 of by-laws and election of trustees laws and for trustees, is in the fol- 
 
512 THE LATV OF ASSESSMENTS. 
 
 ernment, and any other source or deraignment of title.^ 
 No provisions exist for others owning lands within the 
 district, who did not sign the petition, being admitted into 
 tlie organization as voters. When the petition has names 
 signed to it representing a majority of the acreage, if so 
 disposed, the signers can close it against the owners of the 
 balance of acreage, and ever after deprive them of a voice 
 in the proceedings which may result in imposing upon 
 the minority acreage heavy assessments, subject only to 
 limitation that the assessments conform to the doctrine 
 of uniformity and equality, in the proportion to benefits as 
 compared with the other lands of the district, and be free 
 from fraud. 
 
 Sec. 349. what Lands with regard to Deraignment of Title 
 may be included and assessed. — In California, where grants 
 under the Spanish and Mexican governments had been made 
 before the acquisition of the territory by the United States, 
 embracing them, and the same included overflowed or swamp 
 lands, the title passed to the grantee without distinction as 
 between that character of lands and dry lands, but after this 
 territory was ceded to the National Government all swamp 
 and overflowed lands not previously disposed of vested and 
 were held as other public lands — the swamp and overflowed 
 
 lowing language: " By the votes or be literally construed, there would 
 signatures of the holders of certifi- be no by-laws or trustees, because 
 cates of purchase or patents, repre- none of the petitioners held certifi- 
 senting at least one half of the land cates of purchase or patents. In 
 sought to be reclaimed," &c. Under constniing statutes containing repug- 
 this section it was claimed that only nant clauses, it is the duty of the 
 "holders of certificates of purchase court to examine the whole statute, 
 and patents" could vote, and peti- and to give effect to such of the re- 
 tioners who owned land held by pugnant provisions as best comport 
 " other evidences of title " could not with the end to be accomplished, 
 vote; but the court, ruling on this and will render the statute effective 
 point, used the following language: rather than nugatory;" and the 
 "It was competent for the supervi- court held that the adoption of the 
 sors to create the district on the pe- by-laws and appointment of trustees 
 tition of persons who held no certifi- were valid, even though the peti- 
 cates of purchase or patents, but tioners who performed the act were 
 only ' other evidences of title.' To not holders of certificates of pur- 
 carry out the purposes of the statute chase or patents. People v. Hagar, 
 it was necessary that there should be 52 Cal. 184. 
 
 by-laws and a board of trustees; but = Hagar v. Supervisors of Tolo 
 
 in the case supposed, if the statute County, 47 Cal. 232. 
 
SWAMP LAND DTSTRICTS Or CALIPOKNIA. 513 
 
 lands in trust for the states wherein they were situated. 
 The provisions made by the state for reclaiming swamp and 
 overflowed lands are not confined to those lands, the title to 
 which is derived from the government of the United States, 
 but includes all the lands within an organized district requir- 
 ing reclamation, and all the lands may be assessed which 
 are wet, swampy or overflowed, so as to require draining or 
 leveeing in order to reclaim them. The source from which 
 the title is deraigned has no controlling effect upon the in- 
 cluding or excluding, it is simply the character of the lands 
 which govern. If they are dry and need no protection from 
 overflow they ought to be excluded ; if they are subject to 
 overflow or are wet and swampy and can be reclaimed they 
 ought to be included within a reclamation district.^ 
 
 Sec. 350. Powers conferred — not Unconstitutional. — The 
 powers conferred upon swamp land districts by which they 
 are enabled to condemn and appropriate private property 
 for the use of levees, drains and other necessary works of 
 reclamation are not in violation of the provisions of the 
 constitution which secure to the citizen the right "to 
 acquire, possess and protect property;" which secure the 
 right of trial by jury; which provide that "no person 
 shall be deprived of life, liberty or property without due 
 process of law," and that taxation shall be equal and uni- 
 form, and that property shall be taxed on the ad valorem 
 principle.^ ^ 
 
 ' Hagar v. Supervisors of Yolo grant of tlie Mexican government in 
 County, 47 Cal. 231-3; People v. no respect affects the question. It 
 Hagar, 52 Cal. 183. The question is the character of the land and its 
 of the liability of lands other than susceptibility of being reclaimed un- 
 those the title to which was de- der one system of works, and not 
 raigned through the Arkansas Act the source of the owner's title, 
 from the United States, came before which authorize the action of the 
 the Supreme Court of the United state. The lands granted by Mex- 
 States in a case wherein the same ico were not, by the treaty under 
 party was plaintiff and Reclamation which California was acquired, ex- 
 District No. 108 was defendant, and empted from the control that the 
 tlie ruling in the case of Hagar d. state exercises over all other lands." 
 Supervisors of Yolo County was af- Hagar v. Eeclamation District No. 
 firmed. The court, speaking by 108, 4 Sup. Ct. Rep. 666. (Cal.) 
 Justice Field, used the following i" It has never been held that tax- 
 language: "The fact that the ap- ation for general purposes, or for 
 pellant's land was derived from a local improvements, is an infringe- 
 33 
 
514 
 
 THE LAW OF ASSESSJIENTS. 
 
 Sec. 351. Swamp Land District Assessments: Power of 
 Legislature over. — In the case referred to in section 350," 
 the position was assumed by counsel that the act authorizing 
 the formation of swamp land districts was repugnant to the 
 constitution of the state — that it contravened the right of 
 the citizen " to acquire, possess and protect property; " the 
 provision that " no person shall be deprived of life, liberty 
 or property without due process of law;" "the taking of 
 private property for public use without just compensation;" 
 and the provision that taxation shall be equal and uniform, 
 and the constitutional requirement that property must be 
 taxed on the ad valorem principle. All these positions were 
 held to be untenable.^ The right of trial by jury has no 
 reference to proceedings to enforce a tax or assessment. It 
 has been frequently ruled that proceedings by which a tax 
 or assessment is levied and collected constitute due process 
 of law and that the sale of property for taxes and assessments 
 does not constitute the taking of private property for public 
 use.^ The provision of the constitution requiring taxation 
 
 raent of that clause of the constitu- 
 tion relating to the acquisition and 
 enjoyment of property ; and tlie 
 right of trial by jury has no ap- 
 plication to proceedings for the col- 
 lection of taxes. Nor does the 
 enforcement of a valid tax, by what- 
 ever method, constitute a taliing of 
 property without due process of law, 
 in the sense of the constitution; nor 
 is it a taking of private property for 
 public use within tlie purview of that 
 instrument." Hagar v. Sup. Yolo 
 County, 47 Cal. 233-4. See also Peo- 
 ple ». Mayor of Brooklyn, 4 N. Y. 
 430-1; Burnett d. Sacramento, 12 
 Cal. 83; Sears d. Cottrell, .5 Mich. 
 251 ; Emery d. San Francisco Gas 
 Light Co., 28 Cal. 345; Egyptian 
 Levee Co. v. Hardin, 27 Mo. 498. 
 
 2 In the case of the People v. Mayor 
 <fec. of Brooklyn, the court declares 
 the distinction between the taking of 
 property by right of eminent domain 
 and by right of taxation in the fol- 
 lowing language : " Taxation exacts 
 
 money or services from individuals 
 as and for their respective shares of 
 contribution to any public burthen. 
 Private property taken for public 
 use by right of eminent domain is 
 taken not as the owner's share of 
 contribution to a public burthen, 
 hut as so much beyond his share. 
 Special compensation is therefore to 
 be made hi the latter case, because 
 the government is a debtor for the 
 property so taken, but not in the 
 former, because the payment of 
 taxes is a duty, and creates no obli- 
 gation to repay otherwise than ifithe 
 proper application of the tax." The 
 same view taken in Moale v. Mayor 
 of Baltimore, 5 Md. 320. 
 
 "Hagar v. Supervisors of Yolo 
 County, 47 Cal. 233-4. 
 
 1 Hagar v. Supervisors of Yolo 
 County, 47 Cal. 223. 
 
 2 Hagar v, Supervisors of Yolo 
 County, 47 Cal. 234; Murry's Lessee 
 B. Hoboken Land Improvement Co., 
 18 How. 272-5; People,!;. Mayor of 
 
SWAMP LAKB DISTRICTS IX CALIPOKNIA. 515 
 
 to be equal and uniform, has no application to assessments 
 for local improvements. If the cost of these be distributed 
 in proportion to the benefits accruing to the property directly 
 affected by the improvements, it is all that is required. It 
 applies only to those taxes which are levied to defray 
 the expenses of the government of the state or some county 
 or town.^ 
 
 Sec. 352. Powers conferred are constitutional. — These 
 powers in some form have been exercised bj' almost every 
 state in the nation and by some long before the donation 
 by the national government to the several states wherein 
 they are situated, of the swamp and overflowed public 
 lands, charged with their reclamation by the donees, com- 
 monly known as the Arkansas act. A statute was passed 
 in North Carolina in 1795 permitting land to be condemned 
 for drains and this statute in 1874 was held to be constitu- 
 tional.^ The' states of New York, Pennsylvania, Massachu- 
 setts, and other states where the title to the swamp and 
 overflowed lands was not dei-aigned through the Federal 
 Government have assumed and exercised the power to 
 authorize swampy, overflowed and uucultivatable wet lands 
 to be drained at the expense of the owners, and for that pur- 
 pose have provided for taking private lands for right of 
 way for drains, ditches, levees and other works of reclama- 
 tion.^ 
 
 Sec. 353. Assessment to be made by the Commissioners — 
 must view the land. — To make a valid assessment the trustees 
 of the swamp land district are required to survey, plan, 
 locate, and estimate the cost of the work necessary for the 
 
 Brooklyn, 4 K. Y. 419; Emery v. promote the health of the people and 
 
 San Francisco Gas Light Co., 28 Cal. advance the public good, is unques- 
 
 34.5; Sears B. Cottrell, 5 Mich. 251. tionable. In the exercise of this 
 
 3 Burnett v. Sacramento, 12 Cal. power it may abate nuisances, con- 
 
 83; Egyptian Levee Co. v. Hardin, struct and repair highways, open 
 
 27 Mo, 498. canals for irrigating arid districts, 
 
 1 Norfleet v. Cromwell, 70 N". C. and perform many other similar acts 
 634. See also French v. White, 24 for the public good, and all at the 
 Conn. 170; Woodruff v. Fisher, 17 expense of those who are to be 
 Barb. 224. chiefly and more immediately beue- 
 
 2 " But we think the power of the filed by the improvement." Hagar 
 legislature to compel local improve- u. Supervisors of Yolo County, 47 
 ments which, in its judgment, will Cal. 2.33. 
 
51G THE LAW OF ASSESSMENTS. 
 
 reckmation of the lands of the district. This is done by a 
 civil engineer employed for that purpose, and whose em- 
 ployment is provided for. All these must be reported to 
 the county or counties wherein the lands are located. The 
 board of supervisors which organized the district appoints 
 three commissioners to assess the estimated cost upon the 
 lands within the district, by assessing to each separate tract 
 " a charge proportionate to the whole expense, and to the 
 benefits which will result from such works."' The com- 
 missioners, as already stated, make the assessment upon the 
 land according to proportionate cost and benefits, and for 
 that purpose must view the land. But it is not necessary 
 that they go upon each parcel of the land assessed. It is 
 enough that they acquaint themselves with the character 
 and location of the land with respect to the reclamation 
 contemplated and projected by the plan or system adopted, 
 so as to enable them to determine the question of benefits 
 to each tract.^ They are required to make out and return 
 a list containing : 1. A description, by legal subdivisions or 
 other boundaries, of each tract assessed ; 2. The number of 
 acres in each tract ; 3. The names of the owners of each 
 tract, if known, and if unknown, that fact must be stated; 
 4. The amount assessed against each tract.''^ The trustees 
 
 ' § 3456, P. C. Cal. land districts, making surveys and 
 1 People V. Hagar, 52 Cal. 188. estimates, and adopting a mode or 
 ^§3461, P. C. Cal. This was at- system of reclamation, the court 
 tempted under an act which pro- said: "The act in question, how- 
 vided that: "The trustees of ever, attempts to deprive the prop- 
 Keclamation District No. 118 are erty owners of all the benefits 
 hereby authorized and directed to conferred by the law under which 
 make up a sworn statement, in de- the district was organized and the 
 tail, of the total cost and incidental trustees elected, and in terms direct 
 expenses of the worli: of reclamation the latter to make up a sworn state- 
 in the said district, based upmi the ment of the total cost and incidental 
 hooks and vouchers thereof, and to expenses of the work of reclama- 
 report the same to the board of su- tion, based upon the books and vouch- 
 pervisors of Contra Costa County, ers thereof, &c. According to this 
 and thereupon the said board must act the amount assessed must be the 
 appoint three commissioners," &c. amount the trustees are required to 
 The validity of proceedings under report, and this amount they are re- 
 this act coming before the Supreme quired to ascertain by making a 
 Court of California, and in constru- statement of the total cost and in- 
 ing the act, after noticing the gene- cideiital expenses of the work, based 
 ral provisions for organizing swamp upon the books and vouchers of the 
 
SWAMP LAND DISTEICTS IN CALIFOENIA. 
 
 517 
 
 cannot, even by authority of an act of the legislature, make 
 up a sworn statement, in detail, of the total cost and ex- 
 penses of the reclamation, and thereupon procure the ap- 
 pointment of three commissioners to view and assess such 
 cost and expense upon the land within the district.^ *^ 
 
 Sec. 354. Assessments — Commissioners must jointly vieTv 
 and assess. — The commissioners must all join in the acts of 
 viewing and assessing. A majority cannot act. The lan- 
 guage of the act is: "Shall jointly view and assess upon 
 each and every tract to be reclaimed or benefited thereby a 
 tax proportionate to the whole expense, and to the benefits 
 which will result from such works." ^^'^^ 
 
 district. In other words, the books 
 and vouchers are by the act declared 
 to be the foundation of the state- 
 ment — that upon which it must rest. 
 To ascertain tlie total amount from 
 such a basis would require a mere 
 mathematical calculation, calling for 
 and admitting of no question as to 
 the correctness of the books or 
 vouchers, or of the charges con- 
 tained in them, and would take 
 from the trustees all discretion in 
 the premises. It is in effect notliing 
 more nor less than an attempt by the 
 legislature to levy an assessment 
 upon the lands of the district" for 
 the amount sliown by the books and 
 vouchers of the district, irrespective 
 of any question as to whether the 
 law authorizing and providing for 
 the work had been complied with. 
 People V. Houston, 54 Cal. 536. 
 
 ^This character of legislation is 
 contrary to the constitution in de- 
 priving the trustees of the district 
 of that freedom and discretion which 
 is necessary to enable local, munici- 
 pal and other district corporations 
 or organizations to properly manage 
 their local affairs in the interests of 
 those concerned. People ». Lynch, 
 51 Cal. 345. 
 
 ^ If the sums sought to be covered 
 by this mode of assessment had 
 been incurred under a proceeding 
 
 where the jurisdiction of the board 
 of trustees, by reason of some omis- 
 sion, failed to attach, then the act 
 would be an attempt indirectly to 
 operate as curative of the defect, 
 and which, in such cases, the legis- 
 lature had no power to cure. Brady 
 V. King, 58 Cal. 45. See also the 
 general doctrine under the title " De- 
 fective Assessments and Curative 
 Acts." 
 
 ^No sums incurred prior to the 
 organization of the district surveys, 
 plans, location of works and esti- 
 mates, can be included in an assess- 
 ment. District No. 110 v. Feck, 60 
 Cal. 406. 
 
 1 Where the facts were tliat only 
 two of the commissioners appeared 
 at the time and place appointed, the 
 only part the otlier, who was sick at 
 the time, took in making the assess- 
 ment, was to write to the others that 
 he would agree to an assessment to 
 be made in accordance with a mu- 
 tual understanding previously had; 
 it was held that the assessment was 
 invalid. People v. Coghill, 47 Cal. 
 362. 
 
 2 But where the commissioners 
 "went togetlier upon the land, trav- 
 ersed it in different directions, and 
 from different points of observation, 
 obtained a view of the whole tract," 
 the court refused to hold, as a mat- 
 
518 THE LAW OF ASSESSMENTS. 
 
 Sec. 355. Assessment — cannot be impeached except for 
 fraud. — In a suit to enforce payment of an assessment it is 
 not competent to prove that the lands assessed were of 
 different values, and would be benefited in different de- 
 grees, and that the commissioners erred in making the 
 assessment. " The statute confides to the commissioners 
 the duty of ascertaining the benefits to each parcel of the 
 land severally. They must exercise their judgment and 
 discretion, and in the absence of fraud their action in this 
 respect cannot be attacked and shown to be erroneous in 
 a collateral proceeding."' The character and condition of 
 the land, whether or not it is dry, wet, swampj', or over- 
 flowed at the usual planting or harvesting season, or is of 
 the character of lands classed as swampy or overflowed, 
 and, by recent decisions of tlie Supreme Court of Cali- 
 fornia, whether the lands proposed to be included, and 
 which are included within the district, will be actually 
 benefited, the full amount which may be found necessary 
 for their reclamation, are passed upon when considering 
 the petition for the organization of the district.' All parties 
 
 ter of law, that this was not such stated. People v. Hagar, 49 Cal. 
 
 a joint viewing as the statute re- 232. 
 
 quires. People v. Hagar, 52 Cal. 189. ^ People v. Hagar, 52 Cal. 188. In 
 
 ^The court construed the provi- a later case, a contrary doctrine 
 
 sion requiring a joint viewing not to seems to have been announced. Tlie 
 
 mean that the commissioners must objection to the assessment was that 
 
 go upon " each and every acre." no notice was provided for, aud no 
 
 This could not be done "without opportunity was given to object to 
 
 an accurate survey, dividing the the amount charged against the land, 
 
 whole into tracts of one acre each." but the court held that inasmuch as 
 
 A finding by the court that the com- the assessment would only be en- 
 
 missioners "did view and jointly forced by suit or action, and the 
 
 levy and assess," &c., but that does defenses to such suit or action were 
 
 not find that they jointly viewed the not limited, that the owner of the 
 
 land, will not sustain an assessment, land assessed was not injured by this 
 
 People V. Ahem, 52 Cal. 210. omission. "It cannot be material, 
 
 * The certificate or return by the however, that the land owner had 
 commissioners, that they did jointly no notice before the proportional 
 view and assess the land, is not con- benefit to his land was estimated by 
 elusive; and if such return be made, the commissioners, if in the subse- 
 it may be Impeached in a collateral quent action he has had his day in 
 action. It is not made their duty court, with full opportunity to con- 
 by statute to make such return, and test the chaige, before it was de- 
 if they voluntarily do so, it is only clared a Hen upon his land, or a 
 prima, facie evidence of tlie fact judgment to be collected out of hii 
 
SWAMP LAND DISTKICTS OF CALIFOENIA. 
 
 519 
 
 interested having been duly notified of the time and place 
 of the hearing of the petition, whether they entered a per- 
 sonal appearance or absented themselves, are concluded 
 upon these questions; They cannot be inquired into as 
 matters of defense to an assessment after the organization 
 of the district.^ 
 
 Sec. 356. Assessments — must be made under the law in 
 force at date of organization. — Where a swamp land district, 
 organized under statutory provisions existing prior to May 
 28th, 1868, and prior to the adoption of the Political Code, 
 does not reorganize under the provisions of said code, it can- 
 
 general property." Reclamation Dis- 
 trict No. 108 V. Evans, fil Cal. 106- 
 107. If the land owner has no op- 
 portunity to contest the value of the 
 hen e fits to be assessed against liis 
 land, before action or suit brought, 
 he ought then to be allowed to con- 
 test the value of such benefits as a 
 defense, or partial defense, or he is 
 wholly deprived of that right. Ante, 
 § 312. But in two later cases the 
 same court has held that the ques- 
 tion of benefits, whether or not the 
 land has been actually benefited at 
 all, or to the extent assessed for, 
 cannot be made an issue or defense 
 to a suit or action brought to enforce 
 the assessment. (See the cases of 
 Eeclamation District No. lOS v. Ev- 
 ans, 61 Cal. 106-7, and People v. 
 Hagar, 4 Pac. Eep. 951 (Cal.), cited 
 ante, § 343, n. 3, and n. 2 of this 
 section.) 
 
 2 The ruling in People v. Hagar 
 and Eeclamation District No. 108 
 1). Evans (4 Pac. Eep., 951 Cal.), 
 was affirmed in the same court 
 in a later case between the parties 
 first named, and fully sustains the 
 text. In this latter case the court 
 used the following language: "This 
 evidence was objected to for the 
 reason, among others, that tlie offer 
 was an attempt to contradict and , 
 impeach the assessment, by show- 
 ing that the commisdioners erred 
 
 in their judgment in determining 
 that each tract of land in the 
 district was benefited to the same 
 extent as all others in proportion to 
 acreage, and that the several tracts 
 were chargeable with the amounts 
 severally assessed against them as 
 returned by the commissioners. The 
 board of supervisors, in hearing the 
 petition for the formation of the dis- 
 trict, and in making the order, had 
 jurisdiction to determine what lands 
 were to be benefited by the proposed 
 system of reclamation, and to in- 
 clude such lands within the district, 
 and their determination cannot now 
 be inquired into. . The trustees had 
 authority to cause surveys, plans, 
 location, and estimates of the cost 
 of the work to be made, and the 
 commissioners had authority to as- 
 sess upon each and every acre within 
 the district to be reclaimed or bene- 
 fited, a tax proportionate to the 
 whole expense, and to the benefits 
 which would result from the works. 
 Such jurisdiction and authority be- 
 ing given by the statute, we do not 
 think it was competent for the court 
 below to have determined that either 
 of the parcels enumerated in the 
 offer was not benefited, or that such 
 benefit was not of the value of the 
 assessment." See also Reclamation 
 District No. 108 v. Evans, 01 Cal. 
 108, 106-7. (See also ante, § 343,n. 3. ) 
 
520 
 
 THE LAW OF ASSESSMENTS. 
 
 not make an assessment pursuant to the provisions of the 
 Code. It must proceed under and pursuant to the pro- 
 visions of the statute existing at the date of its organization, 
 and those subsequently enacted amendatory thereof.^ 
 
 Sec. 357. ah the Land in the District must be assessed. 
 — It is competent for the board of trustees to adopt a sj'S- 
 tem or mode of reclamation which will be more beneficial 
 to the lands of one part of the district than to the other,^ 
 but the board cannot exempt any land within the district, 
 from assessment.^ All the provisions of the code provide 
 
 ^Keclamatlon District No. 3 v. 
 Kennedy, 58 Cal. 124. 
 
 iStat. (Cal.) 1877-8, p. 838, § 15. 
 
 2 Levee District v. Huber, 57 Cal. 
 42. The doctrine stated in the text 
 would seem to be fully warranted by 
 the statute and the case cited, but 
 a recent decision of the same court 
 modifies this doctrine, so far as it 
 holds that all the land included 
 within the district must be assessed 
 something ; and the more reasonable 
 doctrine is stated, that where a tract 
 or parcel receives no actual benefit 
 from the work of reclamation, no 
 assessment of any sum need be 
 charged against it. In ruling on this 
 precise point, the same court, per 
 Justice Thoknton, used the follow- 
 ing language: "But it is said tbat 
 under any circumstances the failure 
 to assess the Mclntyre tract was fatal 
 to the assessment. It is evident 
 from the testimony above given, that 
 the land was not assessed, because it 
 was not benefited. Does the law 
 require that lands within a reclama- 
 tion district, not benefited, shall be 
 assessed ? Clearly here the land of 
 Mclntyre was not and would not be 
 benefited at all. Why should any- 
 thing be assessed upon it when the 
 reason by which assessments .for 
 benefits is sustained do not exist ? 
 It would be the height of injustice 
 to put a charge upon land upon a 
 surmise or theory that it is or would 
 
 be benefited, when the fact is estab- 
 lished that it is not and would not 
 be benefited. Nor do we think that 
 the statute makes any such require- 
 ment. The benefits to each tract 
 are to be adjusted by the commis- 
 sioners as it is in their judgmeut 
 benefited. Full discretion is vested 
 in them to fix the amount to be paid, 
 and such amount must be fixed as a 
 measure of the resulting present or 
 prospective benefit. If no benefits, 
 )io assessments must be cliarged on 
 the land. According to the view 
 urged by the respondent's counsel, 
 an assessment, however small, would 
 satisfy the requirement of the law, 
 even one cent or one mill would be 
 sufticient. In this state of the case 
 we tliink tlie maxim, de mimmvs 
 non curat lex applies. If one cent 
 or one mill would satisfy the de- 
 mands of the law, and we are of that 
 opinion, we do not think that we 
 should be justified in holding the 
 entile assessment null for the failure 
 to assess so insignificant a charge." 
 Reclamation District No. .3 v. Gold- 
 man, 4 Pac. Eep. 680. (Cal.) The 
 facts as to the particular tract, not 
 charged with an assessment, were, 
 that although the Mclntyre tract 
 was embraced within the district, it 
 was not within the reclamation 
 works for the payment of the cost 
 of which the assessment was laid. 
 
SWAMP LAND DISTRICTS IX CALIPOENIA. 521 
 
 for viewing and assessing "upon the lands situated within 
 the district, a charge proportionate to the whole expense 
 and the benefits which will result from such works" etc. 
 It is therefore held that a portion of the expense must be 
 borne by each tract included within the district. In the 
 case cited the learned judge in assigning a reason for his 
 conclusions says — "It is perhaps a legislative declaration 
 (which by all the cases is held conclusive) that all the lands 
 within the district will be benefited." A further reason per- 
 haps might be assigned in the fact that the board of super- 
 visors at the hearing of tlie petition for the formation of the 
 district, and to which all owners of land in the district are 
 made parties and served bj' publication of the petition, among 
 other things are to find, " that no land is improperly included 
 in or excepted from the district " — before the approval of the 
 petition. This is a finding that all lands included within 
 the district will be benefited by works of reclamation and 
 to exempt or omit any from assessment, would be in violation 
 of the principle of uniformity and equality in taxation. Sup- 
 pose a tract were not included within the reclamation works 
 and not in fact benefited, could such tract be assessed with 
 the other lands included, a ratable proportion of the cost? 
 
 Sec. 358. Assessments — separate parcels to the same o-wner 
 may be included — should be separately listed and charged. — 
 An assessment for a swamp land improvement, like assess- 
 ments for general taxation, may include separate parcels, 
 or tracts, to the same owner. In such case the assessment 
 should follow the rule of assessments for general state 
 and county taxation when made to unknown owners — the 
 amount of the tax should be apportioned to the several 
 parcels or tracts separately.-^ Although including more 
 than one tract, when it is for the same improvement, and 
 
 1 The reason why each tract or tract, even where both are owned by 
 legal subdivision must be separately the same person. The Code pro- 
 assessed, Is because the assessment vision is: " Assessments on several 
 becomes a lien on the land, and can tracts may be included in the same 
 only be enforced by foreclosure of action if listed to the same person, 
 the lien and sale of the land. The In such action the court may decree 
 proportionate share of the assess- and adjudge a lien against the same, 
 nient, created by one tract, could and may order them to be sold on 
 not be made a lien against another execution or decree, as in .other cases 
 
522 
 
 THE LAW OF ASSESSMENTS. 
 
 the lands are assessed to the same person, it is but one 
 assessment, and the suit brought to enforce payment may, 
 and should include all the land assessed to the same owner.^ 
 
 Sec. 359. Additional or "New" Assessments for -wrork 
 "done or to be done.'' — If the assessment is insufficient to 
 provide complete reclamation of tlie lands of the district, 
 or to pay for the work when fully completed, upon proper 
 showing and application to the board of supervisors, a 
 second assessment may be made, and so on, whenever a 
 necessity is shown to exist therefor.' ^ Where a second or 
 subsequent assessment is applied for, the petition may in- 
 clude work " done or to be done," showing, in the petition, 
 the necessity for the work to be done. But work done 
 previous to the organization must not be included. 
 
 Sec. 360. Two Assessments— enforcement of, in one action. 
 — It is no objection to a complaint, in a suit to enforce the 
 
 of sale of real estate." Sec. 3466 
 Polit. 0. Cal. (Amd'ts of 1873^.) 
 
 2 People V. Hagar, 52 Cal. 181; 
 District No. 110 V. Feck, 60 Cal. 
 405. 
 
 1 § 3459 P. C. Cal. A similar pro- 
 vision exists in Indiana. Large v. 
 Tiie Keen Creek Drainage Company, 
 40 Ind. 409. 
 
 2 Wliere an order for a second as- 
 sessment was made and the proceed- 
 ings of the board of supervisors were 
 brought before tlie District Court on 
 a certiorari, it appeared that a peti- 
 tion had been presented to the board 
 stating the work which had been 
 done, and that " all work and im- 
 provements contemplated by said 
 original plan has been fully per- 
 formed;" that " the original assess- 
 ment was . . . insufficient to provide 
 for the complete reclamation of the 
 lands of the district, according to 
 the original plan thereof, and a fur- 
 ther sum is necessary and required 
 to provide for the payment thereof, 
 not including the expenses of the 
 future protection, maintenance and 
 lepair tliereof." The petition also 
 stated the . total cost of the work 
 
 done, and after deducting the prior 
 assessment asked for an assessment 
 to cover the deficiency: held that the 
 petition was sufficient, and that it 
 was no objection to it that it included 
 the cost for work that had already 
 been done, with a statement of the 
 estimated cost of work thereafter to 
 be done. This decision is based on 
 the amendment of 1872, so far as re- 
 lates to work already done. Hagar 
 V. Board of Supervisors, 51 Cal. 475. 
 That portion of Sec. 34, Act of 1868, 
 as amended in 1872, reading in these 
 words: "The trustees shall present 
 to the board of supervisors of the 
 county by whom the formation of 
 the said district was approved, a, 
 statement of the work done, or to 
 be done, and its estimated cost; and 
 the said board shall make an order," 
 &c., was construed to mean as well 
 ■a, district organized under the pro- 
 visions of Sec. 43 of the Act of 1868, 
 as districts in existence at the date 
 of the passage of the Act. The 
 seeming restrictive words of the pro- 
 vision was intended to provide a rule 
 to govern where part of the lands of 
 the district lay in two or more conn- 
 
SWAMP LAND DISTEICTS IN CALIFOENIA. 523 
 
 collection of assessments made by an organized swamp land 
 district, that it embraces two assessments. On the contrary, 
 if two assessments against the same land are delinquent 
 at the time suit is commenced it is proper, and they should 
 both be included, in order to avoid multiplicity of actions.^ 
 
 Sec. 361. Orders for Assessments not reviewable — The 
 board of supervisors of the county, when acting upon a 
 petition of a reclamation district, asking an order for an 
 assessment, do not act judicially, but as a branch of the 
 political department of the government, and their action 
 thereon cannot be reviewed upon a writ of certiorari.^ 
 
 Sec. 362. Estoppel — as to all Lands iqcluded. — Certain 
 facts, as already shown, must be stated in a petition to or- 
 ganize a swamp land district. Notice of the application is 
 required to be given by publication of the petition so that 
 all persons who own lands within the proposed district may 
 appear at the hearing of the petition and make any objec- 
 tions they may have to the creation of the district. This 
 notice and the right to appear and present objections, are 
 considered "due process of law," and as giving to those not 
 signing the petition, "a day in court." ^ And if a party ap- 
 pear and urge objections but does not object tliat his lands 
 included within the proposed district are not swampy nor 
 overflowed lands, he is estopped in subsequent proceedings 
 from setting up as a fact that any of his lands within the 
 district, are not swampy or overflowed.^ And if those 
 
 ties, and the district had been organ- the same street, and a demurrer to 
 
 ized in that county wherein the the complaint was sustained upon 
 
 greater portion of the lands were the sole ground that two separate 
 
 situated. Keclamation District No. assessments were included in the 
 
 3 V. Goldman, 4 W. C. Kep. 102 complaint for separate improve- 
 
 (Cal.); (s. 0. 4 Pac. Kep. 678.) ments; while in District No. 110 v. 
 
 1 The judge, in making the de- Feck both assessments were for the 
 
 cision cited in this note, said that same improvement— the first having 
 
 his ruling did not conflict with the proved insufficient to complete the 
 
 case of Dyer v. Barstow (50 Cal. reclamation projected. District No. 
 
 6.52-4.) The difference between the 110 i\ Feck, 60 Cal. 405; People v. 
 
 two cases consists in these facts : In Hagar, 52 Cal. 181. 
 
 the case of Dyer v. Barstow the two ^ Bixler v. Sacramento County, 59 
 
 assessments included in one suit Cal. 703. 
 
 consisted of two diiTerent improve- ^ People v. Hagar, 52 Cal. 182. 
 
 ments, one for grading a street, the ^ Hagar v. Supervisors of Yolo 
 
 other for curbing and macadamizing County, 47 Cal. 231, 
 
524 THE LATV OF ASSESSMENTS. 
 
 not signing the petition fail to appear at the hearing, and 
 the petition contains a statement of the necessary facts, and 
 the board approve the petition, their judgment is conclusive 
 that the lands included are swamp and overflowed ; that 
 the petitioners held certificates of purchase, patents and 
 other evidences of title, and that the lands would be bene- 
 fited by the reclamation proposed, to an amount necessary 
 to reclaim them, and that no lands were improperly included 
 or excluded. These being jurisdictional facts, are presumed 
 to have been in issue and found in favor of the petitioners 
 at the hearing for the organization of the district, and are 
 not open to attacjc in a collateral action.^ And in all future 
 proceedings, this presumption operates as an estoppel. 
 
 'People V. Hagar, 52 Cal. 182-3; Freeman on Judgments, § 523. 
 
ASSESSMENTS BY PraVATE COEPOKATIONS. 525 
 
 CHAPTER XXVI. 
 
 ASSESSMENTS BY PEIVATE COEPOEATIONS. 
 
 Sec. 363. Assessment of Corporation Stock for Corporation 
 purposes; -wliether or not a personal liability. — Assessments of 
 shares of the capital stock of private corporations have already 
 been defined.^ The law governing these assessments bears 
 no analogy to assessments for general taxable purposes, but 
 is not wholly dissimilar to special assessments laid on prop- 
 erty benefited to pay the expenses of local improvements. 
 Where subscriptions to the capital stock of a corporation 
 are made payable in installments these are usually denomi- 
 nated "calls;" but the order requiring payment and 
 sometimes the installments themselves are called "assess- 
 ments." By the latter term, however, is usually known 
 those charges imposed upon the shares of the capital stock 
 of the corporation held in private ownership, whether tlie 
 same have been fully paid up or not, or whether evidenced 
 by certificates or not. When " calls " are enforceable only 
 by a sale of the shares, the law governing in the case of 
 "calls" and "assessment" will be found to be not materi 
 ally different. Unless there is something in the charter of 
 the corporation or in the agreement of subscription or the 
 statute under which the corporation is organized, " calls " 
 can only be enforced by a sale or forfeiture of the shares 
 subscribed for.^ Where the charter or statute under which 
 the corporation is organized expressly provides for a sale of 
 shares in case of non-payment of calls or assessments, but 
 provides no other remedy, the corporation is confined to 
 
 ' Ante, § 1. Company the mimber of shares, at 
 
 2 Kennebec &c. R. R. Co. v. Ken- $100 each, set against our names, in- 
 
 daU, 31 Maine, 470. A subscription eluding our former subscription," 
 
 reading in these words: "Wf. hereby followed by signatures, willi num- 
 
 agree to subscribe to the stock in the her of shares, was held to create no 
 
 Kennebec and Portland Railroad personal liability. Id. 
 
626 
 
 THE LA"W OF ASSESSMENTS. 
 
 the remedy given.^ But where the language of the sub- 
 scription agreement is so framed as to create a promise to 
 pay the amount subscribed, for a given number of shares, a 
 personal action may be maintained.* Also when the sub- 
 scription contains an agreement to pay all such legal assess- 
 ments as may be levied by the corporation, a personal 
 action may be maintained to recover assessments.^ It may 
 
 ' In the case of Andover and Med- 
 ford T. Co. V. Gould (6 Mass. 40), the 
 subscription agreement was in the 
 following language: " Whereas the 
 legislature has, at the last session, 
 granted leave for making a turnpike 
 road from (describing course), we, 
 the subscribers, desirous of having 
 the same completed as soon as possi- 
 ble, agree to take in said road, the 
 number of shares set against our 
 names, and be proprietors therein." 
 Defendant signed the paper, and 
 wrote one share opposite his name. 
 In passing upon the personal liabil- 
 ity of the defendant, Chief Justice 
 Varsons used the following lan- 
 guage: " But it is a rule foimded 
 on sound reason that when a statute 
 gives a new power, and at the same 
 time provides the means of executing 
 it, those who claim the power can 
 execute it in no other way." The 
 learned judge, in reply to any moral 
 obligation to pay the assessments 
 made under authority of this sub- 
 scription agreement, held that the 
 persons interested in the turnpike 
 constructed, may not be able to judge 
 of the probable expense or profits of 
 it; but if they know that if the as- 
 sessments become grievous they may 
 abandon the enterprise by suffering 
 their shares to be sold, they may on 
 this principle join the association. 
 Tlie same course of reasoning is 
 used by the Supreme Court of Cali- 
 fornia in Tajdor v. Palmer, 31 Cal. 
 2.H {ante, § 310), in the majority 
 opinion, in holding that assessments 
 for street improvements are restricted 
 to the lien upon the land assessed. 
 
 * Where the subscription paper 
 contained an agreement, " to pay 
 into the funds of said company, in 
 such installments as the president 
 and directors may, under the pro- 
 visions of law require," a personal 
 action to recover the assessments 
 was maintained. City Hotel v. Dick- 
 inson, 6 Gray 586. 
 
 '' A subscription agreement for cor- 
 poration shares was in the following 
 language: "We, whose names are 
 hereunto subscribed, hereby severally 
 agree to take the number of shares 
 in the Worcester Turnpike Corpora- 
 tion by each of us set down and af- 
 fixed to each of our respective 
 names, and to pay all such legal as- 
 sessments on each of said shares as 
 shall hereafter be made by the future 
 government of said corporation, af- 
 ter the same shall have been organ- 
 ized and carried into operation, 
 according to the act or law of the 
 commonwealth for establishing said 
 corporation, provided, however, that 
 this subscription and obligation is 
 upon this condition," (that a certain 
 number of shares be subscribed and 
 the turnpike have certain direc- 
 tions, wliich conditions were com- 
 plied with.) A subscription having 
 been made for one share and an as- 
 sessment having been levied (upon 
 all the shares), which after notice 
 this subscriber refused to pay, a per- 
 sonal action was brought to recover 
 the amount. In passing upon the 
 personal liability of the subscriber, 
 the court said that there was •' no 
 legal objection to a contract between 
 the corporation and the individual 
 
ASSESSMENTS Bi' PRIVATE CORPOEATIONS. 
 
 627 
 
 be no legal objection to the obligation that the subscription 
 preceded the legal organization of the corporation. If the 
 corporation accept the subscription and the subscribers 
 recognize themselves as stockholders or subscribers to 
 shares of stock, they will be liable.® But if the obligation 
 , rest on contract only, and no right is reserved in the char- 
 ter, nor in the organic or statutory law to change the charter 
 or statute, and a change be made without the consent of 
 the subscriber to shares, the personal liability cannot be en- 
 forced.'^ If, however, the charter be granted or the corpora- 
 
 members of it, more than between a 
 town and any of its inhabitants, 
 when the authority of the corpora- 
 tion to contract with its members is 
 witliin the reason of the powers 
 vested in it, and may be necessary 
 for tlieir execution, although this au- 
 tlaority may not be expressly given 
 by the incorporating act, or by any 
 other statute." Proceeding, the couit 
 farther said: " N'otwithstandingtbe 
 i-eniedy of sale given by statute, if 
 the proprietors, to induce the corpo- 
 ration to malce the turnpilce will 
 expressly promise to pay their pro- 
 portion of the legal assessments for 
 the expenses, and the corporation 
 proceed in the execution of their 
 powers on the faith of these prom- 
 ises, we are satisfied that the prom- 
 ises are good in law. They are made 
 between parties competent to make 
 them, and for a legal consideration." 
 Worcester Turnpiiie Corporation v. 
 Willard, 5 Mass. 80; (s. c, 4 Amer. 
 Dec. 39); Taunton Turnpike v. 
 Whiting, 10 Mass. 327; (s.c. 6 Amer. 
 Dec. 124.) 
 
 ^A promissory note given to the 
 coiTporation, promising to pay it 
 " one hundred and twenty-five dol- 
 lars for five sliares of the capital 
 stock of said corporation, in such 
 manner and proportion, and at such 
 lime and place, as the said corpora- 
 tion should from time to time re- 
 quire," may be enforced. Goshen 
 and Minisink Turnpike Road v. Hus- 
 
 tin, 9 John. E. 217; (s. c. 6 Amer. 
 Dec. 273.) Upon this question the 
 court used the following language: 
 "Admit, then, that tlie handwriting 
 on the paper preceded tlie meeting, 
 yet the delivery and acceptance of 
 it, which is the date of its legal ope- 
 ration, to the time to which the 
 words written are to be understood 
 to relate, was subsequent to the or- 
 ganization of the proprietors; and 
 then, if not before, Gilmore, the 
 name used in the subscription, was 
 recognized as their agent, acting in 
 their behalf. The law will so ar- 
 range acts performed in one day and 
 relating to the same subject matter 
 as to render them comformable to 
 the intentions of the parties, with- 
 out regarding which was, in fact, 
 first produced or executed." Taun- 
 ton Turnpike v. Whiting (10 Mass. 
 327) ; 6 Amer. Dec. 124. 
 
 'Middlesex Turnpike t). Swan (10 
 Mass. 384) ; 6 Amer. Dec, 139. An- 
 other case illustrative of this point 
 is The Hartford & New Haven Rail- 
 road Co. V. Croswell, 5 Hill (N. Y. ) 
 283. The original charter author- 
 ized the corporation to locate and 
 construct a road from Hartford to 
 New Haven. The shares were taken 
 or subscribed for upon " the terms, 
 conditions and limitations" men- 
 tioned in the charter. After the 
 subscription was made the corpora- 
 tion procured an amendment to its 
 charter, authorizing it to establish 
 
528 
 
 THE LAW OF ASSESSMENTS. 
 
 tion organized subject to future alterations or amendments, 
 the subscription contract will not be affected thereby and 
 the stock will be held subject to future " calls " or " assess- 
 ments" without varying the character of the liability. 
 Where a personal liability is claimed to exist by virtue of a. 
 subscription contract, its terms must be determined from^ 
 the language used in creating it. 
 
 and maintain a line of water com- 
 munication by means of steamboats, 
 at an expense not to exceed $200,000; 
 and it was insisted that the defend- 
 ant, by his contract of subscription, 
 was liable as stockholder to this ad- 
 ditional feature of the charter with- 
 out any consent on his part, but the 
 court held that "The proposition 
 was too monstrous to be entertained 
 for a moment. Corporations have 
 no such power. . . . They can exer- 
 cise no powers over the corporators 
 beyond those conferred by the char- 
 ter to which they have subscribed, 
 except on the condition of their 
 agreement or consent." The rule 
 of law is stated to be that " if a cor- 
 poration procure an alteration to be 
 made in its charter, by which a new 
 or different business is superadded 
 to that originally contemplated, such 
 of the stockholders as do not assent 
 to the alteration will be absolved 
 from their liability on their subscrip- 
 tions to the capital stock." Angel 
 & Ames on Cor. § 537; Burrows v. 
 Smith, 10 N". Y. 550; Marietta &c. 
 R. R. V. Elliott, 10 Ohio St. 57; Bai- 
 ley Trustee v. Trustees of Power 
 Street M. E. Church, 6 R. I. 491; 
 Woodhouse ij. Commonwealth Ins. 
 Co., 54 Pa. St. 307. But where the 
 charter, or the statute creating the 
 corporation, or the constitution of 
 the state, provides for such altera- 
 tions or amendments to the charter 
 or statute, such results will not fol- 
 low. In the case of the Meadow 
 Dam Co. v. Gray, 30 Me. 547, which 
 was an action for two assessments, 
 one for $10 and the other for $15, 
 
 there had been an increased liability 
 under a subsequent act of the legis- 
 lature, and this was set up, among 
 other defenses, to a recovery. The 
 act under which the charter was 
 granted and accepted contained a 
 provision that " All acts of incor- 
 poration hereafter granted shall at 
 all times be liable to be amended, 
 altered or repealed at the pleasure of 
 the legislature," and this was held to 
 be a sufficient reply to this branch of 
 the defense sought to be interposed. 
 This point was also considered in a 
 case in the Supreme Court of Rhode 
 Island, where the authorities touch- 
 ing the question were examined at 
 great length. An assessment had 
 been levied in accordance with legal 
 requirements. The charter had been 
 granted, subject to a section of the 
 Revised Statutes providing that 
 "all acts of incorporation hereafter 
 granted may be amended or repealed 
 at the will of the general assembly, 
 unless express provision shall be 
 made therein to the contrary." The 
 charter contained a proviso in the 
 following words: " That the stock- 
 holders . . . shall not be liable to 
 any responsibility further than the 
 amount of their respective shares, 
 and interest thereon, for or on ac- 
 count of any damage or loss sus- 
 tained by said company, or for or on 
 account of any debts due thereon." 
 After the organization of the corpo- 
 ration, and after its capital stock had 
 been all taken, an act of the legisla- 
 ture was passed by which it was 
 enacted that " whenever the capital 
 stock of any insurance company 
 
ASSESSMEKTS BY PEIVATE COEPOKATIONS. 
 
 529 
 
 Sec. 364. "Calls" ana "Assessments." — It will be neces- 
 sary to keep in mind the distinction, referred to in the pre- 
 ceding section, between " calls " and " assessments." These 
 terms are sometimes employed as synonymous, and to mean 
 tliose installments or partial payments whicli are provided 
 for in the subscriptions to the capital stock of a corpora- 
 tion, when it is part of the terms of the subscription that 
 the stock subscribed for is to be paid in installments upon 
 calls made by the trustees or board of directors. These 
 calls are sometimes designated assessments, especially in 
 states where the statute or charter of the corporation 
 authorizes the levying of assessments after, as well as be- 
 fore the stock has been fully paid, and without reference 
 to that question. The word "call" is not commonly, 
 if ever, used to designate the charges imposed upon shares 
 of stock after the capital has been fully paid up ; then the 
 word "assessment" is used. Perhaps, to designate all 
 calls for unpaid capital stock as "call-assessments," would 
 suiBciently distinguish them from all others. In all pro- 
 bability, in a majority of the states, even where corporations 
 
 sliall be diminished by reason of 
 losses, or from any other cause, the 
 stockholders of such company, at 
 any legal meeting thereof, called for 
 the purpose, may (after making due 
 allowance from the assets of the 
 company of such amount as may be 
 required to reinsure its outstanding 
 risks), assess such further sum as 
 may be necessary to fill up the capi- 
 tal stock to its original amount, upon 
 the several stockholders, in propor- 
 tion to the amount of stock owned 
 by each, and the stock of every 
 stockholder shall be pledged and 
 liable for such assessment." The 
 assessment was levied after the 
 enactment of the amendment, and 
 after the full amount called for on 
 each share had been paid in, and in 
 excess thereof. It was claimed that 
 by the proviso of the original char- 
 ter the stockholders had a vested 
 right to be free from assessments 
 beyond their respective shares, and 
 34 
 
 that subsequent legislation could not 
 impair such right. The court, while 
 conceding that an alteration which 
 would work an entire dissolution of 
 the contract entered into by the sub- 
 scriber to the stock, or which would 
 superadd an entirely new enterj)rise 
 not contemplated, would not be war- 
 ranted, and for objects essentially 
 different from those originally de- 
 signed might be. held as of no bind- 
 ing force, yet that "modifications, 
 useful and beneficial to the company, 
 and in accordance with the under- 
 standing of the subscribers at the 
 time as to tlie real purpose, will not 
 impair the subscription or furnish a 
 defense." Gardner v. Hope Insur- 
 ance Co., 9 E. I. 194; (s. c. 11 Amer. 
 K. 238.) The following cases are 
 cited in support of the decision: 
 Hawthorne i'. Calef, 2 Wall. (U. S.) 
 10; Meadow Dam Co. v. Gray, 30 
 Me. 545; Everhart v. Penn. & Ohio 
 Kailroad Co., 28 Pa. 339. 
 
530 THE LAW OF ASSK.SSMENTS. 
 
 mny be organized under general statutes, the power to 
 assess the shares, after the stock has been fully paid, is not 
 conferred;' but in some states assessments may be levied 
 upon the shares as well after as before the stock has been 
 paid. 
 
 Sec. 365. Assessments— after stock paid up. — -In most in- 
 stances the same rules apply in making a " call " or " as- 
 sessment" for unpaid subscriptions, as when levying assess- 
 ments after the stock has been fully paid. When the sub- 
 scribed shares are fully paid in some states, no further 
 assessments can be levied as to such shares. Generally 
 this is the extent of the stockholder's liability both to the 
 corporation and its creditors ; but on this point the law is 
 different in different states. In California the directors of 
 any corporation may levy and collect assessments for the 
 purpose of paying expenses, conducting business, or paying 
 debts. No assessment must exceed ten pef cent, of the 
 capital stock named in the articles of incorporation, except 
 where the capital stock has not been paid up, when it may 
 be for sucli percentage, if necessary to meet its liabilities, 
 as will equal the unpaid capital stock; but if a fire or 
 marine insurance company, the assessment may be without 
 restriction as to amount. If a railroad company, it can, in 
 no ease, exceed ten per cent, of the capital stock. A second 
 assessment cannot be levied while any portion of a previous 
 one remains unpaid, unless the power of the corporation 
 has been exercised for the purpose of collecting such pre- 
 vious assessment, and the collection has been enjoined, or 
 the stock has not been fully paid up— as a railroad, fire, or 
 marine insurance company.^ In this state (California) 
 only a certain class of corporations, such as railroad, banli- 
 ing, telegraph, wagon road, and insurance corporations, are 
 required to have a subscribed capital stock, and tliose hav- 
 ing a capital stock are required to state in the certificate of 
 their incorporation how much thereof has been subsctibed 
 and paid in.^ As to all others, no subscribed capital stock 
 
 'In Ohio it was decided that a land b. Palestine T. Co., 19 Ohio St. 
 
 statute authorizing au assessment 369. 
 
 upon stockholders of full paid ' Civ. Code Cal., §§ 331, 332, 833. 
 shares was unconstitutional. Ire- '^ Civ. Code Cal., §§ 291, 294, — 414. 
 
ASSESSMENTS BY PRIVATE COKPOEATIONS. 
 
 531 
 
 is required, and the amount stated in the certificate of in- 
 corporation as capital stock has no reference to the actual 
 or contemplated assets of the corporation, and constitutes 
 no part thereof. Assessments in this latter class cannot be 
 levied, to collect from the shareholders the nominal sub- 
 scribed or issued capital stock of the corporation, even for 
 the payment of debts. But each shareholder is personally 
 liable for his proportionate part of all the debts, and for 
 tlie payment of which assessments may be levied, and each 
 creditor may also maintain his action against each stock- 
 holder for such proportion. In the former class, corpora- 
 tions which are required to have a subscribed capital stock, 
 the'amount of subscriptions may be called in by assessments 
 enforced by sale of shares, or this remedy may be waived 
 at an}' time previous to sale, and a personal liability 
 enforced.^ This privilege attaches only to corporations 
 required to have a subscribed capital stock.* 
 
 8 Civ. CodeCal., §349. 
 
 *In an action or proceeding 
 brought in the U. S. District Court 
 of California to require an assess- 
 ment upon the capital stock of a 
 iiiining corporation with the inten- 
 tion of bringing personal actions 
 against the stockliolders to enforce 
 payment thereof, it was held that 
 stockholders of such corporations 
 were not subject to assessment on 
 account of the capital stock, by rea- 
 son of being owners of its shares. 
 Tlie application was based upon a 
 clause to section 349 of the Civil 
 Code, which I'eads in the following 
 words: "On the day specified for 
 declaring the stock delinquent, or at 
 any time subsequent thereto, and 
 before the sale of the delinquent 
 stock, the board of directors may 
 elect to waive further proceedings 
 under this chapter, for the collection 
 of delinquent assessments or any 
 part or portion thereof, and may 
 elect to proceed by action to recover 
 the amount of the assessment and 
 the costs and expenses already in- 
 curred, or any part or portion there- 
 
 of." It was claimed that this pro- 
 vision applied to all corporations, 
 and that stockholders in mining cor- 
 porations with no subscribed nor 
 paid up capital could be compelled, 
 by assessments of their shai-es, to 
 pay the par or face value thereof, 
 and that such assessments could be 
 enforced by personal actions. The 
 court denied the application — hold- 
 ing that this clause quoted from sec- 
 tion .349 had reference only to the 
 class of corporations which were 
 required to have a subscribed capital 
 stock. After quoting the provisions 
 for stating in the articles of incor- 
 poration, whether tliere Is a capital 
 stock, which is in these words: 
 " Sixth, the amount of the capital 
 stock and the number of shares into 
 which it is divided. Seventh, if there 
 is capital stock, the amount actually 
 subscribed, and by whom," the court 
 used the following language: "The 
 only meaning I can attach to them 
 is, that the legislature contemplated 
 two classes of corporations, in both 
 of which the amount of the so-called 
 capital stock, and the number of 
 
532 
 
 THE LAW OF ASSESSMENTS, 
 
 Sec. 366. Assessments — ■who may make — Power where 
 vested— Conditions precedent. — The power to make an assess- 
 ment which will be binding on the stockholder must be 
 looked for in the charter or law under which the corpora- 
 tion is organized. Where the statute or charter creating 
 the corporation authorizes the levying of an assessment at 
 a legal meeting of the corporation, the power is vested in 
 the corporation and not in the board of directors, and can 
 only be exercised at a stockholder's meeting. When the 
 power to make the assessment is vested in the corporation 
 us contradistinguished from the directors, this power can- 
 not be transferred or delegated to the board of directors.^ 
 When the statute or charter of a corporation provides that 
 a certain number of shares of the capital stock of the cor- 
 poration must be subscribed for before assessments can be 
 levied, it must appear that this provision has been complied 
 with, in order to sustain the power to levy the assessment.^ 
 In such case, if a part of the shares are preference shares — 
 
 shares into which it is divided, are 
 required to be stated; but in only 
 one of these classes the stock was 
 supposed to be subscribed for, and 
 an obligation incurred to take and 
 pay for it. This latter class includes, 
 as we have seen, railroad, wagon 
 road and telegraph companies, and 
 banking, insurance, and other asso- 
 ciations based on capital paid in or 
 agreed to be paid in. It is to this 
 class that "the clause giving the di- 
 rectors the right to elect, 'to pro- 
 ceed by action to recover the amount 
 of the assessment, must,' in my judg- 
 ment, be deemed to refer." Per 
 IIoFFMAN, Judge — In re South 
 Mountain Consolidated Mining Co., 
 5 Fed. Rep. 408-9. (Cal.) This cause 
 being appealed to the Ninth Circuit, 
 the decision of the District Court 
 was affirmed. In affirmance, on this 
 point, the court used the following 
 hinguage: "Mining corporations in 
 California are, in these particulars, 
 sui generis. They are organized and 
 carried on upon principles, in these 
 
 respects, wholly different from bank- 
 ing, railroad, insurance and like 
 commercial corporations having a 
 subscribed capital stock. There is 
 no agreement, express or implied, 
 to pay up any particular amount of 
 stock, and no one understands that 
 there is. Certainly, none is intended 
 by the parties. . . . There is a mere 
 power of assessment for a specific, 
 limited purpose, under the statate 
 and by-laws — not a, contract to pay 
 generally in instalments upon call; 
 but this mere power to assess, inde- 
 pendent of any contract, express or 
 implied, to pay up the nominal 
 amount of capital stock in instal- 
 ments, is not an asset of the corpo- 
 ration, and counsel for the petitioner 
 do not claim that it is." Per Judge 
 Sawyer— In re S. M. C. M. Co., 11 
 Fed. Kep. 349 (Cal.) 
 
 1 Ex parte Winsor, 3 Story Cir. Ct. 
 411. 
 
 2 Lervey's Island R. R. Co. v. Bol- 
 ton, 48 Me. 455. 
 
ASSESSMENTS BY PRIVATE COEPOEATIONS. 
 
 533 
 
 entitled to draw interest — they will not be considered as 
 any portion of the number.^ An agreement to take shares 
 in a corporation will have reference to the number of shares 
 required by its charter. A subscriber will not be bound, 
 until after the minimum number required by the charter 
 have been taken.' When part of the shares subscribed for 
 ;ire to be taken by a contractor for part payment of a con- 
 tract entered into by him with the corporation, or are made 
 payable on conditions made part of the subscription, these 
 cannot be reckoned as part of the required number of shares, 
 when a minimum number is required to give the corporation 
 jurisdiction to make calls or levy assessments.* Where the 
 statute concerning railroad corporations required at least 
 one thousand dollars for each mile of the contemplated road 
 to be subscribed and ten per cent, of the subscriptions 
 to be actually paid in before any call-assessments could 
 be made, and one of the subscribers, and whose subscrip- 
 tion was necessary to make up the required minimum of sub- 
 
 ' Where tlie charter provided that 
 the capital stock should " consist of 
 not less than 11,000 and not more 
 than 15,000 sliares of $20 each," and 
 the subscription hooks showed only 
 9,476 shares, it was held that the 
 agreement to take shares "had ref- 
 erence to the capital stock required 
 by the charter. The engagement 
 was to take such a part of that capi- 
 tal. The shares to be assessed were 
 the shares of that capital. There 
 must therefore have been such a 
 capital stock obtained before the 
 subscriptions could be binding, or 
 any legal assessments could be 
 made." Oldtown & Lincoln K. K. 
 Co. V. Veazie, 39 Me. 576; Central 
 Turnpike Co. v. Valentine, 10 Pick. 
 146. 
 
 *A stock subscription provided 
 that " When 3,000 shares shall have 
 been subscribed, the directors may 
 levy assessments upon the same, pro- 
 vided not more than ten dollars per 
 share shall be assessed upon each 
 share at any one time, nor more than 
 
 25 per cent, of the amount sub- 
 scribed, within any three months; 
 and no subscriber shall be liable be- 
 yond the amount of his subscrip- 
 tion, but to such extent the company 
 shall have the power to enforce ifs 
 claims against a delinquent subscri- 
 ber by sale of his stock, and by pro- 
 cess against him or his representa- 
 tives." Of the shares subscribed-^ 
 500 were subscribed for as part pay- 
 ment to the subscribers, of their con- 
 tract for grading for the corporation 
 — when the contract was completed, 
 and 130 shares were subscribed with 
 the condition that '' no assessment 
 shall be made until the work is com- 
 menced, and that part of the road 
 from Adams to Troy is put under 
 contract." It was held that neither 
 the 500 nor the 130 shares could be 
 reckoned in the required number of 
 3,000 shares, to authorize the levy 
 of an assessment; that there must 
 be 3,000 shares that could all be as- 
 sessed. Troy & Greenfield R. R. Co. 
 V. Newton, 8 Gray 601. 
 
534 
 
 THE LAW OF ASSESSMENTS. 
 
 scribed stock instead of paj'ing in money delivered to the 
 corporation his check upon a solvent bank for the amount 
 of ten per cent, of his subscription, it appearing also that 
 his check would have been honored if presented, held not 
 a compliance with the requirements of the statute and the 
 corporation had not acquired jurisdiction over the subscribers 
 to levy upon their shares call-assessments.^ 
 
 Sec. 368. Assessments — when less than all the amount of 
 stock required is subscribed — Subscribing deficiency after Levy. 
 — It may be considered as a rule well established, that when 
 the statute or charter creating the corporation requires a 
 stated number of shares of stock to be subscribed, and a 
 less number are in fact subscribed, no valid assessment can 
 be levied. And where, on the same day, but after the 
 assessment is levied and the meeting of directors dissolved, 
 
 ' A statute required a railroad cor- 
 poration to liave a subscription to its 
 capital stock of $1,000 per mile, and 
 that " ten per cent, in cash so re- 
 quired to be subscribed sliall be actu- 
 ally and in good faith paid to a 
 treasurer to be named and appointed 
 by said subscribers from among their 
 number," before the company could 
 become properly incorporated, with 
 the functions and powers of a cor- 
 poration. The amoimt of stock was 
 subscribed, but ten thousand dollars 
 of the ten per cent, was paid by a 
 check for that amount drawn upon 
 a bank where the drawer did not 
 liave the money to honor it. The 
 finding of facts showed : 1. That the 
 check would have been paid on pre- 
 sentation whether the drawer had 
 funds on deposit to meet it or not. 
 2. That the company received it as 
 cash but never presented it for pay- 
 ment. 3. That when the check was 
 drawn the drawer had not to his 
 credit in bank sufficient funds to 
 meet it. 4. That the clieck was paid 
 to and received by the company in 
 good faith. Upon this statement of 
 facts the court held that the receipt 
 of the check as payment, did not 
 meet the requirements of the statute. 
 
 The reasoning seems to be conclu- 
 sive. Ckocket, Justice, speaking 
 for the court, said: " If payment in 
 this method can be substituted for 
 the cash payment required by the 
 statute, it is obvious that payment 
 in a promissory note, payable on de- 
 mand, and which would have been 
 paid on presentation, but wliich was 
 never presented for payment, or in 
 any negotiable securities, which 
 might at any time have been con- 
 verted into cash, but were not so 
 converted, would have been equally 
 as valid as the raetliod here adopted. 
 . . . The policy which dictated this 
 provision is perfectly apparent. It 
 was intended to prevent the forma- 
 tion of corporations for the construc- 
 tion of railroads unless the corpora- 
 tors should testify their good faith 
 and earnestness in the enterprise by 
 subscribing for stock to the amount 
 of $1,000 per mile of the proposed 
 road, and actually paying in cash ten 
 per cent, of the amount subscribed 
 before proceeding to incorporate." 
 ... A check drawn upon a bank 
 by a person who has no funds to his 
 credit, and which has never been 
 presented for payment, can in no 
 just sense be deemed cas7i, however 
 
ASSESSMENTS BY PEIVATE CORPORATIONS. 535 
 
 a subscription is made, making up the requisite number, 
 the assessment will be illegal and a sale of shares on account 
 thereof invalid. A compliance with this statutory require- 
 ment is necessary to give jurisdiction to make the assess- 
 ment. The full subscription of shares is a condition prece- 
 dent; and this condition must be satisfied in fact before the 
 act levying the assessment can be done.^ 
 
 Sec. 369. Assessments — power of Director to levy. — A 
 corporation has no power to lev}' an assessment until after 
 its certificate of incorporation is filed, where the incorpo- 
 ration is effected under a general statute ; and where two 
 corporations become consolidated, the merger is not com- 
 plete so as to authorize the levying of an assessment by 
 the corporation as merged, until after the making of the 
 agreement authorizing the consolidation and the filing of 
 the duplicate or counterpart thereof, in the office of 
 the secretary of state or otherwise, as required by statute 
 authorizing the consolidation.^ Where a corporation has 
 been invested with power to incur indebtedness without 
 limit in conducting its authorized business, and its by- 
 laws limits the amount of indebtedness to be so incurred, 
 the statute is paramount to the by-laws, and an assessment 
 levied to pay an indebtedness exceeding the amount author- 
 ized by the by-laws may be enforced.^ 
 
 good the credit of the drawer." Peo- and pay the expenses and debts of 
 
 pie V. Chambers, 42 Cal. 204. the corporation (Civ. C. CaUfornia, 
 
 1 Stoneham Branch R. Co. D. Levi § 331, amendments 1873-4). There 
 Gould, 2 Gray 277. is no statutory restriction in this 
 
 ^ Where the charter of a railway state as to the amount of debts a 
 
 corporation provided that assess- corporation may incur in its ordi- 
 
 ments might be levied upon the cap- nary authorized business. The by- 
 
 ital stock, but that in the aggregate, laws of the Triunfo G. & S. M. Co. 
 
 assessments should not exceed $100 authorized its trustees to incur such 
 
 per share, it was held that assess- indebtedness as they deemed neces- 
 
 ments levied for the payment of the sary, not exceeding ten thousand 
 
 debts of the corporation beyond that dollars, and made it the duty of the 
 
 amount were invalid. The Penin- trustees to make all necessary as- 
 
 sular Railway Co. v. Hart, 28 Mich, sessments, and collect the same in 
 
 507. manner prescribed by law. The 
 
 2 In California, corporations are business of the corporation was car- 
 created under general laws, and af- ried on out of the state under the 
 ter one fourth of their capital stock management of a superintendent, 
 has been subscribed, have power to and before it was known to the trus- 
 levy assessments to carry on business tees, the superintendent had involv- 
 
536 
 
 THE LAW OF ASSESSMENTS. 
 
 Sec. 370. Obtaining Jurisdiction. — The Civil Code of Cali- 
 fornia provides that every order levying an assessment 
 must specify the amount per share, when, to whom and 
 
 ed the corporation in debt to the 
 amount of $35,000, and thia debt 
 was a lieu upon the property of the 
 corporation. The trustees levied an 
 assessment of $3 per sliare on the 
 Capital stock, to be used toward pay- 
 ment of this debt. The assessment 
 amounted to $15,000. One of the 
 stockholders, refusing to pay his as- 
 sessment, procured an injunction to 
 restrain the sale of his stock on the 
 ground that tlie trustees had no 
 power to incur a greater indebted- 
 ness than authorized by the by-laws. 
 On a motion to dissolve the injunc- 
 tion, which had been refused in the 
 lower court. Justice Cuiirby ren- 
 dering the opinion for the Supreme 
 Court of California, held that, " If 
 it be assumed that by the sixth arti- 
 cle of the by-laws, tlie trustees had 
 no authority to incur a debt exceed- 
 ing ten thousand dollars, it does not 
 result therefrom that they had not 
 the authority to levy and collect, for 
 the purpose of paying the legal and 
 proper expenses of the company, 
 assessments upon the capital stock 
 tliereof, even though the amount to 
 be raised by such means miglit ex- 
 ceed ten thousand dollars. The 
 trustees of any corporation formed 
 under the general laws of this state 
 had the power, wlien the assessment 
 in this case was levied, to levy and 
 collect, for the purpose of paying 
 such expenses, assessments upon tlie 
 capital stock of the coi'poratiou not 
 to exceed five per cent, of such 
 capital stock, provided no previous 
 assessment then remained unpaid or 
 uncollected. Sullivan v. Triunfo G. 
 & S. M. Co., 29 Cal. 587. This case 
 presents the views of that court upon 
 the general authority of the trus- 
 tees of a corporation to levy and 
 collect assessments. It would seem 
 
 that the. authority given by statute, 
 cannot be restricted by the by-laws, 
 where the assessment is for the pur- 
 pose of paying the debts of the cor- 
 poration incurred in conducting and 
 carrying on its authorized business. 
 The voters of a swamp land district 
 adopted a by-law which declared that 
 "the trustees shall allow no indebt- 
 edness to accrue in excess of the 
 amount of assessment levied." An 
 indebtedness in excess of the first 
 assessment accrued, and a subse- 
 quent assessment was levied to pay 
 such excess, with other expenditures. 
 It was objected that this second as- 
 sessment was illegal and void, being 
 unautliorized by this by-law. The 
 statute providing for the reclamation 
 of swamp and overflowed lands con- 
 tained no limit on the powers of the 
 district of the character expressed by 
 this by-law ; on the contrary, provided 
 for additional assessments, " if the 
 original assessment is insufficient to 
 provide for the complete reclamation 
 of the lands of the district," and 
 also provided that "if further as- 
 sessments are from time to time re- 
 quired to provide for the protection, 
 maintenance and repair of the recla- 
 mation works, the trustees must pre- 
 sent to the board of supervisors by 
 which the district was formed a 
 statement of the work done, or to 
 be done, and its estimated cost, and 
 the board must make an order di- 
 recting the commissioners who made 
 the original assessment, or other 
 commissioners to be named in such 
 order, to assess the amount of such 
 estimated cost as a charge upon the 
 lands within tlie district, which as- 
 sessment must be made and collected 
 in the same manner as the original 
 assessment." (Sec. 3456 P. C. Cal.) 
 In disposing of this objection the 
 
ASSESSMENTS BY PEIVATE COEPOEATIONS. 537 
 
 where payable ; fix a day when the assessment, if not paid, 
 will become delinquent, and require notice of the levying 
 of the assessment to be published in a newspaper for^ a 
 period of sixty days, and that by the publication of the 
 notice, the corporation acquires jurisdiction to sell and con- 
 vey "a perfect title to all of the stock described in the 
 notice of sale upon which any portion of the assessment or 
 cost of advertising remains unpaid at the hour appointed 
 for the sale.-' This statute merely contains additional con- 
 ditions precedent, necessary to be met by a corporation, 
 before it acquires jurisdiction to levy an assessment. Pre- 
 supposing that the corporation has been duly organized, 
 and where a minimum number of subscribed shares are 
 necessary, and any percentage of the subscribed capital is 
 required to be paid in, all these prerequisites have been 
 complied with, then the performance of these additional 
 acts confer jurisdiction. The form of notice of assessment 
 levied, also the form of notice of sale of delinquent shares, 
 are prescribed,^ and it is also provided that " No action 
 must be sustained to recover stock sold for delinquent 
 
 court said: "By-laws could not the capital stock of the corporation, 
 
 have the effect of forbidding the payable(when, to whom, and where), 
 
 doing of that which the law ex- Any stock upon which this assess- 
 
 pressly authorized to be done." ment shall remain unpaid on the 
 
 Keclamation District No. 108 v. (day fixed), will be delinquent and 
 
 Hagar, 4 Pac. Eep. 946 (Cal.) advertised for sale at public auction, 
 
 ' Civ. C. Cal. § 330. Where an as- and, unless payment is made before, 
 
 sessment is ordered, the secretary of will be sold on the (day appointed), 
 
 the corporation must give notice of to pay the delinquent assessment, 
 
 the assessment and of the time together -with costs of advertising 
 
 when, if not paid, the assessment and expenses of sale. (Signature 
 
 will become delinquent, not less of Secretary, with location of 
 
 than 30 nor more than 60 days office.)" 
 
 from the time of making the order; 2 Civ. C. Cal. § 335-337. If any por- 
 
 and also to fix a day for the sale of tion of the assessment remains un- 
 
 delinquent stock, not less than 15 paid on the day fixed in the notice 
 
 nor more than 60 days from the day for delinquency, the Secretary of the 
 
 the stock is declared delinquent, corporation, unless otherwise or- 
 
 The following is the form pre- dered by the board of directors, 
 
 scribed: " (Name of corporation in must cause to be published, in the 
 
 full. Name of principal place of same newspaper wherein the notice 
 
 business.) Notice is hereby given, of the assessment was published, a 
 
 that at a meeting of the directors notice substantially in the following 
 
 held on the (date), an assessment of form: "(Name of corporation in 
 
 (amount), per share was levied upon full. Location of principal place 
 
538 THE LAW o;f assessments. 
 
 assessments upon the ground of irregularity in the assess- 
 ment, irregularity or defect of the notice of sale, or defect 
 or irregularity in the sale," unless the party first pays or 
 tenders to the corporation the sum for which the stock was 
 sold, together with all subsequent assessments paid thereon, 
 with interest.^ 
 
 Sec. 371. Limitation on right to levy Assessments. — The 
 limitation on the powers of a corporation to assess the shares 
 as also its general powers are to be sought for in its charter 
 or in the general statutes of the state. It is provided by 
 the Civil Code of California, where assessments are not 
 restricted to unpaid subscriptions, that "No assessment 
 must be levied while any portion of a previous one remains 
 unpaid, unless, 1, the power of the corporation has been 
 exercised in accordance with the provisions of this Article for 
 the purpose of collecting such previous assessment; 2, the 
 collection of the previous assessment has been enjoined; or 
 3, the assessment falls within the first, second or third 
 subdivisions of section 33i2." The exceptions refer to pro- 
 visions where capital stock is required and unpaid ; where 
 the corporation is organized as a railroad corporation or a 
 fire or marine insurance company, when special provisions 
 govern.^ 
 
 It may be safely assumed, upon principles of law that 
 are elementary, that, in the absence of statutory limitations, 
 and where the power to assess the shares is conferred, any 
 attempt to exercise the power in violation of recognized 
 rules of equit}' and uniformity as between all the share- 
 holders, or when unnecessary for the authorized and legiti- 
 
 of business). Notice. There is de- (date), if any such order shall have 
 linquent upon the following de- been made), so many shares of each 
 scribed stock, on account of assess- parcel of such stock as may be nec- 
 ment levied on the (date), (and essary will be sold, at the (particular 
 assessments previously levied, if place stated), on the (date), at (the 
 any), the several amounts set op- hour), of such day, to pay delin- 
 posite the names of the respective quent assessments thereon, together 
 shareholders, as follows: (Names; with costs of advertising and ex- 
 number of certificate; number of penses of sale. (Name of Secretary, 
 shares; amount). And in accord- with location of office. ) 
 ance with law (and an order of the ^ Civ. C. Cal. § 347. 
 board of directors, madfe on the ' § 333, Civ. C. Cal. 
 
ASSKSSMEXTS BY PKIVATE COEPOBATIONS. 5S9 
 
 mate purposes of the corporation, would be restrained by 
 the courts. Whenever the assessment is levied without 
 regard to the rules of equality and uniformity, it is a clear 
 violation of the plainest doctrines of equity and could not 
 be enforced. 
 
APPENDIX. 
 
 DESCRIPTION. 
 
 Sec. 380. Ordinary and reasonable certainty. — In tlje 
 chapter on Description, with the exception of Illinois, and 
 perhaps one or two other states, the doctrine of certaintj 
 in description in the assessment of real estate is carried to 
 the extent that each description must be complete within 
 itself. A description, made up in part by reference to docu- 
 ments where a perfect description may be obtained, is not 
 sufScient. This rule is so well established that it can only 
 be changed by legislation. In the state of Wisconsin, any 
 description " which shall indicate the land intended with 
 ordinary and reasonable certainty, and which would be 
 sufficient between grantor and grantee in an ordinary con- 
 vej-ance, shall be sufficient." ' 
 
 ^ In Wisconsin it was provided by 
 statute (sec. 1047 Rev. St., cli. 268, 
 Laws 1881), that "in all . . . pro- 
 ceedings relating to . . . the assess- 
 ment and collection of taxes, and 
 proceedings founded thereon, as 
 well heretofore as hereafter any de- 
 scription of lands which shall indi- 
 cate the land intended with ordinary 
 and reasonable certainty, and which 
 would be sufficient between grantor 
 and grantee in an ordinary convey- 
 ance, shall be sufficient." In a pro- 
 ceeding where a tax deed had been 
 obtained through a sale of lands for 
 <lelinquent taxes, part of which had 
 been assessed before and part after 
 the passage of this law, the descrip- 
 tion in the tax deed and assessment 
 was in the following words: "Pri- 
 vate claim No. one, 642 55-100 acres 
 less land included in private claims 
 
 Nos. 34 and .35; also less those tracts 
 formally described as lot 2, block 2, 
 and lot 4, block 3, Kankauna plat; 
 also less that part formally known as 
 lot 1, block 8; also less that part for- 
 mally known as block 10, Kankauna 
 Village, 143 acres, sold to Ontgamie 
 County for $3,151, except the follow- 
 ing tracts : 7i acres east of canal, re- 
 deemed by M. L. Martin and Fox and 
 Wisconsin Improvement Co. ; J acre, 
 more or less, by Chas. Cord, commenc- 
 ing, &c. ; also tract formally known 
 as lots 17 and 18, block 9, Kankauna 
 plat, as per deeds recorded, vol. 7, 
 Deeds page 26, i acre, more or less." 
 In ruling upon the objections made 
 to the tax deed by reason of the am- 
 biguity and uncertainty of descrip- 
 tion, the court, per Cassodt, Jus- 
 tice, said: "The ambiguity in the 
 description here consists in reference 
 (541) 
 
£42 APPENDIX. 
 
 EQUALIZATION'. 
 
 Sec. 381. Personal or other notice not required when time 
 of meeting fixed and session limited. — Ifc will be observed, 
 from what appears in the chapter on Equalization, that, 
 whenever the valuation of any tax-payer's assessment was 
 raised by a board of equalization, notice, and sometimes a 
 complaint, were necessary. The person whose liability was 
 to be enlarged was always entitled to be notified and heard 
 before any increase in his liability to taxation was made. 
 The exception to this rule was stated to be where the law 
 fixed the time of the meeting of the board of equalization, 
 and fixed the time within which the board must act upon the 
 assessment roll ; also, where notice could be of no possible 
 benefit to the party. In such cases, except as last stated, 
 the law made it the duty of each person to attend the 
 sessions of the board and take notice of their proceedings. 
 This rule is generally applied where a state board assesses 
 certain classes of property and also acts as a board of 
 equalization upon its own assessments. When the law 
 fixes the time within which such assessments are to be 
 made, and also provides that within a time specified all 
 persons feeling aggrieved by an assessment as made, may 
 appear and show cause why the same ought to be reduced 
 or discharged, no special notice is necessary. Such a pro- 
 vision for an assessment and hearing within a fixed time, 
 
 to records, documents and descrip- Avhich shall indicate the land intend- 
 
 tions outside the deeds, and which ed with ordinary and reasonable cer- 
 
 were necessarily to be regarded as a tami?/, and which would be sufficient 
 
 part of the description. This was a between grantor and grantee in an 
 
 latent ambiguity." After reviewing ordinary conveyance, shall be suffi- 
 
 the cases relied on to support the cient." And the court held that the 
 
 objection, in reply to an objection legislature had power to make the 
 
 based on the fact that part of the act retroactive. Proceeding further, 
 
 taxes had been levied and assessed the court held that, "Such being 
 
 prior to the passage of the curative the law, the question of uncertainty 
 
 or healing act cited herein, the opin- in the description in these tax deeds 
 
 ion is in the following words: "The must be determined by the same 
 
 act provided that in all proceedings rules as are applicable to ordinary 
 
 relating to . . . assessment and col- conveyances between grantor and 
 
 lection of taxes and proceedings grantee." Meade v. Gilfoyle, 24 N. 
 
 founded thereon, as well heretofore W. Eep. 413. See cases reviewed 
 
 as hereafter, any description of lands and cited. 
 
APPENDIX. 
 
 f43 
 
 before the assessing officers, is considered due process of 
 law for taxable purposes. While it is, perhaps, the more 
 equitable rule in all assessments made, within the county or 
 district, to require notice to each person before any addi- 
 tion to his assessment, as fixed by the assessor, shall be 
 allowed, still this addresses itself only to the policy of the 
 system of taxation, and is only a requirement when the 
 law provides that mode of procedure and not the other. 
 The legislature may fix the time within which all assess- 
 ments must be made, and within which boards of equaliza- 
 tion must meet and act upon the assessment roll, giving 
 them power to increase assessments without special notice, 
 and require all persons desiring to resist any increase or 
 decrease of assessments to appear without notice. Where 
 the time within which the assessment and the equalization 
 thereof is fixed, and tl]e party assessed has the right to ap- 
 pear and be heard, the requirement of due process of law, 
 so far as it relates to tax proceedings, is met.^ 
 
 ' In the case of Louisville & X. E. 
 Co. V. Commonwealth of Kentucky 
 (6 Sup. Ct. Rep. 57), sometimes re- 
 ferred to as the Kentucky tax case, 
 the statute under which the taxes 
 had been assessed required certain 
 officers of all railroad corporations 
 operating railroads extending into 
 two or more counties, or through 
 the state, to return to the state con- 
 troller an estimate of the value per 
 mile of their road, including their 
 rolling stock, and where the road 
 was only a portion of one extending 
 beyond the state, a ratable propor- 
 tion of the value of the entire roll- 
 ing stock. A board composed of 
 three freeholders appointed by the 
 governor were required to meet on 
 the first day of September annually, 
 at the office of the state controller, 
 and make an assessment of such 
 railroads, and if the valuations re- 
 turned were too low, to increase, and 
 if too high, to decrease the same. 
 This board could remain in session 
 only twenty days. In reply to the 
 objection that this mode of assess- 
 
 ment was not due process of law, 
 the court said: " These meetings are 
 public and not secret. The time 
 and place for holding them are fixed 
 by law. The proceedings of the 
 board are required to be made mat- 
 ter of record. . . . Any one inter- 
 ested has a right to be present." 
 The Fourteenth Amendment was 
 invoked, upon the theory that no 
 notice to the tax-payer was any- 
 where provided for, and no special 
 provision was made entitling ag- 
 grieved parties to a hearing before 
 tlie hoard making the assessment. 
 In reply to this position the court 
 used the following language: "Two 
 federal questions arise on the record 
 in these cases, contained in the fol- 
 lowing propositions affirmed by the 
 plaintiffs in error: First, That the 
 act of April 3d, ISTS, and the taxes 
 levied in pursuance of it, if enforced 
 as it is sought to be in these .I'udg- 
 ments, in effect take the property of 
 defendants below without due pro- 
 cess of law; and, second, that they 
 constitute a denial of the equal pro- 
 
544 
 
 APPENDIX. 
 
 EQUALITY AND UNIFOKMITY. 
 
 Sec. 382. Providing for an appeal, to certain classes of 
 property only — classifying property — not a discrimination — de- 
 ductions vrlien provided for, in general taxation, cannot be denied 
 in' municipal taxation. — The question arises, whether to com- 
 
 tection of the law, in both par- 
 ticulars violating the Fourteenth 
 Amendment of the Constitution of 
 the United States. ... It has been 
 repeatedly decided by this court that 
 the proceedings to raise public rev- 
 entie by levying and collecting taxes 
 are not necessarily judicial, and that 
 'due process of law,' as applied to 
 that subject, does not imply or re- 
 quire the right to such notice and 
 hearing as are considered to be 
 essential to the validity of the pro- 
 ceedings and judgments of judicial 
 tribunals. Notice by statute is gen- 
 erally the only notice given, and 
 that has been held sufficient. David- 
 son ». New Orleans, 96 U. S., 97, 
 107. ... In its application to pro- 
 ceedings for the levy and collection 
 of taxes, it was said in McMillen v. 
 Anderson (95 U. S. 37, 42) that it is 
 not and never has been considered 
 necessary to the validity of a tax 
 that the party charged should have 
 been present, or had an opportunity 
 to be present, in some tribunal when 
 he was assessed." ... It was fur- 
 ther contended that, notwithstand- 
 ing a hearing had been accorded in 
 the particular case to the parties 
 complaining, yet this was not a de- 
 mand able right under the law, and 
 was only accorded out of grace, and 
 this being true, the law itself was in- 
 valid under the Fourteenth Amend- 
 ment. The court stated this posi- 
 tion of plaintiff's counsel and their 
 own reply thereto in the following 
 language: "It is said, however, in 
 answer to this, by counsel for plain- 
 tiffs in error, in argument, that 
 whatever was in fact this alleged 
 
 hearing, it could only have been ac- 
 corded as a matter of grace and 
 favor, because it was not demand- 
 able as of right under the law, and 
 consequently has no such legal value 
 as attaches to a hearing to which 
 the law gives a right, and to which 
 it compels the attention of the offi- 
 cer, under an imperative obligation, 
 with the sense of official responsi- 
 bility for impartial and right de- 
 cision Which is imputed to the dis- 
 charge of official duty. But such is 
 not the construction put upon the 
 statute, as we have seen, by the 
 Court of Appeals of the State, nor 
 the practical construction, as we 
 Infer from the averments of the 
 pleadings, put upon it by the officers 
 called to act under it. And if the 
 plaintiffs in error have the constitu- 
 tional right to such hearing, for 
 which they contend, the statute is 
 properly to be construed so as to 
 recognize and respect it, and not to 
 deny it. The constitution and the 
 statute will be construed together as 
 one law." And in this case the 
 court held that where provision is 
 made for the enforcement of the 
 tax through the courts, " with such 
 notice to the person, or such pro- 
 ceeding in regard to the property 
 as is appropriate to the nature of 
 the case, the judgment in such pro- 
 ceedings cannot be said to deprive 
 the owner of his property without 
 due process of law, however ob- 
 noxious it may be to other objec- 
 tions," citing Hagar v. Reclamation 
 District No. 108, 111 U. S. 701 (s. c. 
 4 Sup. Ct. Kep. 663). 
 
APPENDIX. 545 
 
 ply with the doctrine of equality and uniformity, the same 
 remedy of appeal from valuations, provided as to any class 
 or classes of property, must be extended to and embrace all 
 classes of property, owned by all persons, whether natural 
 or artificial. It has been decided in numerous cases, by the 
 highest courts, that where the revenue laws, providing for 
 the assessment and collection of taxes, make provision by 
 which the owners of property, after assessment, upon rea- 
 sonable notice provided for in the law, or given as the law 
 may direct, may appear before the assessing officer or a tri- 
 bunal created for that purpose, that this constitutes " due 
 process of law " in a tax proceeding, and that the property 
 assessed may be sold for the non-payment of the tax. It 
 will not be considered a violation of the doctrine of equality 
 and uniformity, if, in addition to providing for a hearing 
 before boards of equalization, an appeal to the courts from 
 the final decision of such boards is also provided for, as to 
 all assessments made within the county ; but no such right 
 of appeal is provided for from the final decision of an 
 equalizing board, acting upon an assessment required to be 
 made by a state board of assessors. The legislature is vested 
 with the power to provide a sj'stem of assessment for taxa- 
 tion, and may provide such system as in its judgment will 
 best secure the object intended, subject only to the restric- 
 tion that it constitutes due process of law.^ For this pur- 
 pose it is within the province of the legislature to classify 
 property for the purposes of assessment and taxation. Such 
 classification will not be considered a discrimination if all 
 
 1 On this point Justice Matthews there said by Mr. Justice Bradley 
 spealting for the Supreme Court of that . . . " the last restriction, as to 
 the United States, used the follow- the equal protection of the laws, is 
 ing language: "We have already not violated by any diversity in the 
 decided that the mode of valuing jurisdiction of the several courts as 
 railroad property for taxation under to subject matter, amount, or finality 
 this statute is due process of law. of decision, if all persons within the 
 That being so, the provision secur- territorial limits of the respective 
 ing equal protection to the laws, does jurisdictions have an equal right in 
 not require, in any case, an appeal, like cases and under like circum- 
 although it may bo allowed, in re- stances, to resort to them for re- 
 spect to other persons differently dress." Louisville & N. E. Co. v. 
 situated. This was expressly decided Commonwealth of Kentucky, 6 Sup. 
 by this court in the case of Missouri Ct. Rep. 57. 
 ■0. Lewis, 101 U. S., 22, 30." It was 
 35 
 
546 
 
 APPENDIX. 
 
 persons and property of a class, within the territorial limits . 
 of the state, or of a district, are subject to the same re- 
 quirements and have equal privileges in respect to the 
 assessment and rate of taxation.^ 
 
 Where the constitution provides for uniformity and 
 equality in taxation, and the general revenue laws pro- 
 vide for deductions on account of indebtedness owing to a 
 bona fide resident of the state, this right of deduction can- 
 not be denied in municipal taxation ; and this rule will 
 apply, notwithstanding the constitutional provision was 
 adopted subsequent to the charter or statute denying deduc- 
 tions in the case of municipal taxation.^ 
 
 2 This question was passed upon 
 in the case last cited in the follow- 
 ing language : " The right to classify 
 railroad property, as a separate class, 
 for purposes of taxation, grows out 
 of the inherent nature of the prop- 
 erty, and the discretion vested by 
 the constitution of the state in its 
 legislature, and necessarily involves 
 tlie right on its part to devise and 
 carry Into effect a distinct scheme, 
 with different tribunals in the pro- 
 ceeding to value it. If such a scheme 
 is due process of law, the details in 
 which it differs from the mode of 
 valuing other descriptions and 
 classes of property cannot be con- 
 sidered as a denial of the equal pro- 
 tection of the laws." Continuing 
 further on tliis point, the court used 
 the following language: "There is 
 nothing in the constitution of Ken- 
 tucky that requires taxes to be levied 
 by a uniform method upon all de- 
 scriptions of property. The whole 
 matter is left to the discretion of the 
 legislative power, and there is noth- 
 ing to forbid the classification of 
 property for purposes of taxation 
 and the valuation of different classes 
 by different methods. The rule of 
 equality in respect to the subject, 
 only requires the same means and 
 methods to be applied impartially to 
 all the constituents of each class, so 
 
 that the law shall operate equally 
 and uniformly upon all persons in 
 similar circumstances. There is no 
 objection therefore to the discrimi- 
 nation made as between railroad 
 companies and other corporations in 
 the methods and instrumentalities by 
 which the value of their property is 
 ascertained. The different nature 
 and uses of their property justify 
 the discrimination in this respect 
 which the discretion of the legisla- 
 ture has seen fit to impose. So the 
 fact that the legislature has chosen 
 to call a railroad, for purposes of 
 taxation, real estate, does not iden- 
 tify it with farming lands and town 
 lots in such a sense as imperatively 
 to require the employment of the 
 same machinery and methods for all 
 in the process of valnation for pur- 
 poses of taxation. Calling them by 
 the same name does not obliterate 
 the essential differences between 
 them, and accordingly it is not in- 
 sisted on in argument, as an objec- 
 tion to the system, that a raih-oad 
 running through several counties is 
 valued and taxed as a vmit, and by a 
 special board organized for that pur- 
 pose, while other real estate is valued 
 in each county by assessors. ' ' Louis- 
 ville & N. K. Co. V. Cummonwealth 
 of Kentucky, 6 Sup. Ct. Eep. 57. 
 8 Where the statute provides for 
 
APPENDIX. 547 
 
 EXEMPTION FEOM TAXATION. 
 
 Sec. 383. Facts constituting exemption must be show^n — 
 former adjudication — not available — ^non-payment of survey fees 
 to continue exemption. — When exemption from taxation is 
 relied on, the facts which, under the hxw, constitute the 
 exemption, must appear affirmatively. No presumptions 
 are indulged in favor of an exemption. Where agricultural 
 lands within the limits of a municipal corporation, whicli 
 are not benefited bj- the expenditure of a municipal tax, 
 are exempted from municipal taxation, a party owning that 
 character of lands within the limits of the town or city, 
 claiming- them to be exempt, cannot rely upon the mere 
 fact that his lands are agricultural; he must also show that 
 they would not be benefited by the expenditure of a muni- 
 cipal tax.^ Nor is a former adjudication of the question of 
 the liability of such lands to municipal taxation conclusive 
 as to future taxation. It depends upon tlie character and 
 condition of property of that character, each year, whether 
 or not it is subject to taxation.^ Where an exemption is 
 
 deductions on account of indebted- derive such benefit from the ex- 
 
 ness due to residents of the state, penditure of city taxes, that it was 
 
 and the facts exist as to any tax- not the proper subject of taxation 
 
 payer, the deduction of the amount for city purposes under the rule of 
 
 of indebtedness, from the value of Brooks v. Polk Co., 52 Iowa, 460." 
 
 taxable property of the tax-payer, (s. c, 3 N. W. Rep. 494.) 
 
 becomes a legal right. A looal or ^ Another position taken was that 
 
 special law applying to a municipal an adjudication had been made 
 
 corporation or district, denying this upon the assessment of a tax of 
 
 right of deduction, where the gen- subsequent date, of the same lands 
 
 eral revenue law allows it, is void and the lands adjudged to he ex- 
 
 wlien repugnant to a constitutional enipt ; and in ruling upon this point 
 
 requirement subsequently adopted the court said : "... we are of 
 
 providing for uniformity and equal- the opinion that where the claim of 
 
 ity in taxation. State — Howell v. exemption rests upon facts which 
 
 Richards, 1 Cent. Rep. 438. Such a are liable to differ from year to year, 
 
 provision, it is evident, would be and must almost necessarily differ 
 
 equally obnoxious to the Fourteenth to some extent, an adjudication 
 
 Amendment. respecting an exemption one year is 
 
 1 " The plaintiff introduced evi- not an adjudication respecting an 
 
 dence showing that the land was exemption any other year. In City 
 
 used for agricultural purposes. But of Davenport v. Chicago R. I. & 
 
 it was not shown that it was used P. R. Co., .S8 Iowa, the court said : 
 
 exclusively for such purposes, nor " The taxes of separate years do not 
 
 was it shown that the land did not in any just sense grow out of the 
 
548 APPENDIX. 
 
 claimed under a grant to a railroad corporation, and the 
 grant provides that the lands shall remain exempt from 
 taxation until after the fees of survey shall have been 
 paid, the right of exemption does not expire when the fees 
 might or could have been paid, nor because the corpora- 
 tion withheld payment for the purpose of continuing the 
 exemption.^ 
 
 SEPARATE PARCELS. 
 
 Sec. 384. Presumption — -where two or more parcels — as- 
 sessed as one. — Two or more adjoining blocks or parcels, 
 when assessed in gross, will be presumed, to have been but 
 one tract or parcel, and the burden of proof will be on the 
 party objecting to the assessment on the ground that separ- 
 ate tracts or parcels were included in one valuation^ or 
 assessment. 
 
 SITUS. 
 
 Sec. 385. Equitable Doctrine of Situs. — The equitable 
 doctrine of so fixing the situs of. personal property, for the 
 purposes of taxation, as to require it to be assessed and 
 taxed in the district where it may be, in fact, situated, irre- 
 spective of the domicile of the owner, has already been re- 
 recognized in some of the states. In Michigan it is pro- 
 vided by statute that goods and chattels shall be assessed 
 
 same ti-ansaction. In our opinion, The court acknowledge that hy de- 
 then, the claim based upon the ad- lay on part of the corporation to 
 judication can not be sustained." pay the survey fees, the lands may 
 Tubbessing v. City of Burlington, be continued free from taxation, 
 24 N. W. Hep. 514 (Iowa). but, said the judge delivering the 
 ^ Northern Pacific K. E. Co. v. opinion, the remedy lies with Con- 
 Eockne, 6 Sup. Ct. Eep. 201. In gress. 
 
 this case it is held that, under the ^ Where the judgment was taken 
 
 grant to the N. P. E. Co. of alter- for taxes in gross against both 
 
 nate sections of the public lands, blocks, and the land sold under the 
 
 these lands are not subject to taxa- judgment so taken, it will be pre- 
 
 tion until after the fees for surveys sumed that both blocks constituted 
 
 liave been paid. The decision is but one parcel or tract of land, and 
 
 put upon the ground that a sale of that the sale in gross of both blocks 
 
 the land for taxes, if subject to taxa- was a proper enforcement of the 
 
 tion, would destroy the equitable judgment. Knight v. Valentine, 
 
 lien of the United States upon the 24 N. W. Eep. 295 (Minn.) 
 land for the expense of the survey. 
 
APPENDIX. 549 
 
 in the township where found, when the owner or person in 
 charge thereof " hires or occupies a store, mill, place for the 
 sale of property, shop, oifice, mine, farm, storage, manufac- 
 tory, or warehouse therein, for use in connection with such 
 goods and chattels." ^ Under the rule created by this 
 statute, personal property must be assessed within the taxing 
 district where it is kept for use, and not at the residence 
 or domicile of the owner ; in other words, the local subdivi- 
 sion of the government which protects the property should 
 realize the tax assessed against it. Any other rule neces- 
 sarilj'- works an injustice in many cases. Taxes being the 
 equivalent of protection, equity, as between tax districts, 
 is onlj' administered when they are paid directly to the 
 division or subdivision of government, which, in legal con- 
 templation, protects the property taxed. If, therefore, 
 under the statute referred to, there be a local establishment 
 within a township or taxing district, with which any per- 
 sonal property therein is, for any substantial purpose, con- 
 nected, the jurisdiction of the assessor of such district over 
 the propert}'' attaches, and the same becomes subject to 
 assessment and taxation therein.^ 
 
 ^ How. Comp. Laws, 126. gin^ camps" wnre connected with 
 2 Plaintiffs had an office and place the business in the particular local- 
 of business in the State of Michigan ity, and were not within the juris- 
 in a tax district, and had also, in diction of the assessor making the 
 two other tax districts within the assessment. The following extract 
 state, " logging camps," where they from this decision shows the con- 
 carried on the business of logging, struction placed upon this statute : 
 having in each an office, store, " The logs may or may not be in- 
 blacksmith shop, boarding house, tended to he sold as logs, or to be 
 (fee, used in connection with their worked up into lumber. This does 
 logging business, each being man- not seem to be important under, the 
 aged by an agent or superintendent, statute. The ore product of mines 
 In each of these "logging camps" is seldom sold at the mines, and is 
 they had, at the time of the assess- sometimes retained and reduced to 
 ment, a large quantity of logs, ready metal by the Jiiine owners them- 
 for " moving." They were as- selves, before placed oh the mar- 
 sessed at their office and place of ket. But this would not, under the 
 business in a county and tax dis- statute, prevent taxation at the 
 trict, not including either of their mine. The statute for purposes of 
 "logging camps," for all the logs taxation looks chiefly to see whether 
 in both logging camps, and having there is a local establishment with 
 paid the tax they brought suit to which the property is, for any sub- 
 recover back the money. The ac- stantial purpose connected. The 
 tion was maintained on the ground logging camps, such as are described 
 that the logs in each of the "log- in this record, seem to us to hav 
 
550 
 
 APPENDIX. 
 
 Sec. 386. "WTien property is, and is not in transitu. — The 
 doctrine that property while being transported from one 
 district, or from one state to another, is not subject to taxa- 
 tion, is treated of in the chapter on Situs} It becomes im- 
 portant to know just when any property within . the state, 
 intended for exportation, assumes the character of property 
 in transitu. While any of the property within the state is 
 being carried to, and is kept within a locality preparatory 
 to exportation, and before it has been actually moved or 
 delivered to a common carrier to be carried to a foreign 
 destination, it remains subject to taxation within the state. 
 If property, in transitu, its destination being without the 
 district or state, be delayed or detained from any cause, 
 notwithstanding it be within the district at the time when 
 liability to taxation becomes fixed, or at the usual time for 
 making assessments, it is not subject to taxation where 
 delayed or detained.^ 
 
 such a connection with the logs 
 cut and prepared for moving under 
 their management." Kyerson j). City 
 of Muskegon, 24 N. W. Eep. 114 
 (Mich.) 
 
 1 Sec. 41. 
 
 2 The subject matter of this sec- 
 tion was passed upon by the Supreme 
 Court of the United States, January 
 25th, 1S86, in the case of No. 3, E. 
 S. Coe 1;. The Town of Errol, (in 
 error from N. H.) wliere tlie facts 
 were, that the plaintiff and others, 
 residents of Maine and Massachu- 
 setts, owned a large number of 
 spruce logs that had been drawn 
 down from Wentworth's location in 
 New Hampshire to the town of Er- 
 roll, to be thence floated down the 
 Androscoggin river^to the state of 
 Maine, to be manufactured and sold. 
 AVhile the logs remained at Errol, 
 the selectmen of the town appraised 
 them for taxation, and assessed 
 thereon state, county, town and 
 school taxes. Another lot of logs 
 belonging to Coe, which had been 
 cut in the state of Maine, and were 
 en their way to Lewiston, Me., and 
 which were detained in the town of 
 
 Errol by low water, were also as- 
 sessed for taxes. The plaintiff filed 
 a petition in the Supreme Court of 
 Ngw Hampshire for an abatement 
 of taxes. That court decided that 
 the tax assessed upon the logs cut in 
 the state of Maine be abated, and 
 that upon the logs cut in New Hamp- 
 shire be sustained. The petitioner 
 took a bill of exceptions, and upon 
 a writ of error carried the case to 
 the Supreme Court of the United 
 States. The question in the case 
 was, whether the products of a state 
 are liable to be taxed like other 
 property within the state, though 
 intended for exportation to another 
 state, and partially prepared for that 
 purpose by being deposited at a place 
 of shipment, such products being 
 owned by persons residing in another 
 state. Justice Beadlby delivered 
 the opinion of the court. He held 
 that until actually launched on its 
 way to another state, or committed 
 to a common carrier for transporta- 
 tion to such state, the destination of 
 the property is not fixed and certain. 
 Carrying it to the depot is only an 
 Interior movement, entirely within 
 
APPENDIX. 551 
 
 VALUATION. 
 
 Sec. 387. Value, at a private sale— and, at a " quick sale." 
 — In nearly all revenue laws a rule is formulated which is 
 to be the test of values, and by which assessors are to be 
 governed in making their valuations of property. It is pro- 
 vided in some of the statutes, that property is to be assessed 
 at its "actual value" — its "actual cash value" — and these 
 have been adjudged to be synonymous terras. In New 
 York and California the test of value to be applied is the 
 sum at which a creditor of a solvent debtor would be will- 
 ing to take the property. In Wisconsin the statute pre- 
 scribed, as a rule in fixing valuations for taxation, that the 
 property should be assessed at a sum "which could ordin- 
 arily be obtained therefor at private sale." A valuation, 
 under this statute, at a sum which the property " would 
 have sold for right off — a quick sale," is merely the equiva- 
 lent of a price for which the property would sell at private 
 sale, where the owner desired to sell, and persons were 
 present with money desiring to buy.^ 
 
 the state, and only for the purpose text, the property beins valued at a 
 
 of putting it into a course of expor- sum which "it would have sold for 
 
 tation ; is no part of the exporta- right off — a quick sale," and it was 
 
 tion itself. Until shipped and objected to on that ground as not 
 
 started on its final journey put of the having been valued as required by 
 
 state, its exportation is matter alto- the statute, the court held, that in 
 
 gether in fieri, and not at all a fixed the absence of any fraudulent coUu- 
 
 aud certain thing. Property thus sion on the part of. the assessor, the 
 
 situated, he held, can be taxed as all assessment was valid. The court 
 
 other property is taxed in the place said; "A sale 'right off, then and 
 
 where it is found, if taxed or as- there — a quick sale ' — under the cir- 
 
 sessed for taxation at the usual time cumstances, is substantially the same 
 
 and manner in which such property as a ' private sale ' at the full value 
 
 is taxed, and not singled out to be which could ordinarily be obtained 
 
 assessed by itself at an unusual and therefor, when the owner desired to 
 
 exceptional time because of its des- sell and persons were present witli 
 
 tination. If taxed in the usual man- money desiring to purchase." Web- 
 
 ner that other similar property is ster — Glover Lumber & Manuf. Co. 
 
 taxed, and at the same rate and sub- v. St. Croix Co., 24 N". W. Rep. 417 
 
 ject to like conditions and regular (Wis.) The court. In this case, re- 
 
 tiflns, the tax is valid. These condi- viewed the Wisconsin cases at soma 
 
 tions having been complied with the length, and distinguishes the case 
 
 judgment of the Supreme Court of from others where the valuation was 
 
 New Hampshire was alfirmed. shown to have been made at one half 
 
 ^ Where an assessment was made and one third the actual value of 
 
 under the statute referred to in the the property. 
 
INDEX. 
 
 [The figures refer to the sections and the notes in the section.] 
 
 A. 
 
 ABATEMENT, 
 
 by including ditch in new civil township pending proceedings for right 
 way, 
 
 See Dbainage assessments, 339. 
 ABANDONED CONTRACT, 
 
 work done under; not to be equalized with work under new. 
 See Street Assessments, 311. 
 ABBREVIATIONS, 
 
 may be used in describing real estate. 
 
 See Ebal Estate, 80, n. 4. 
 "dolls.," an abbreviation of the word "dollars," n. 1, 225. 
 "ABOUT," 
 
 used in connection with words restraining and limiting. 
 See Deainage Assessments, n. 8, 332. 
 ABSENT OWNERS, 
 
 when known, assessment to; when unknown, to unknown owners, 70. 
 
 ABSTRACTS OP TITLE, 
 
 also advertising and engineering; items of expense .of local improve- 
 ments. 
 
 See Street Assessments, 302, n. 1. 
 even although engineer a salaried officer, 302, n. 1, 2; 314; n. 4, 314; 
 n. 4, 320. 
 ACCEPTANCE, 
 completion and, 
 condition precedent to assessment. 
 
 See Completion and Acceptance, 291. 
 of work by common council or other officers. 
 
 See Steebt Assessments, 291. 
 ACCURATE DESCRIPTION, 
 necessary to valid assessment. 
 
 See Description, n. 1, 87. 
 ACRE, 
 
 assessments made by, by foot or other subdivision. 
 
 See Steeet Assessments, 307, 322, 323. 
 ACREAGE, 
 
 owners of majority may exclude owners of minority. 
 
 See Swamp Land Districts (in California), 348. 
 
 (553) 
 
554 INDEX. 
 
 ACQUIESCENCE IN ILLEGAL ASSESSMENT, 
 connecting with sewer is not, n. 2, 339. 
 
 limited acquiescence ; placing partial obstructions in ditch and claiming 
 right, n. 2, 339. 
 ACTUAL EXPENSE, 
 
 apportioned by front foot, generally a reasonable apportionment of 
 benefits, n. 1, 323. 
 ACTUAL VALUE, 
 
 and " cash value" defined, 103, n. 5. 
 defined when used with reference to stocks, 135, n. 2. 
 when above or below par value, 13.5, n. 2. 
 
 test of value, prescribed by Political Code of California, n. 2, 136. 
 income of property, no criterion of, n. 4, 136. 
 ADDITION TO TOWN PLAT, 
 
 described according to a person's [named] addition to town plat. 
 See Keal Estate, 82. 
 when numbers of original and addition the same, 82, n, 3». 
 ADDITIONAL ASSESSMENTS, 
 when may be made. 
 
 See Swamp Land Districts {in California), 359. 
 ADDITIONAL SEWERS, 
 
 when may be constructed under general plan. 
 
 See Street Assessments, 321, n. 1 and 2. 
 ADMINISTRATOR AND EXECUTOR, 
 property in hands of, where taxable. 
 
 See Situs, 39. - 
 taxable at domicile of intestate and testator, 39. 
 
 in Tennessee, at domicile of administrator n. 5, 45. 
 taxable for estate previous to distribution, 67, n. 4. 
 ADVERTISING, 
 
 also abstracts of title and engineering, 
 items of expense of local improvements. 
 See Street Assessments, 302, n. 1; 302, n. 2; 314; n. 2, 314; n. 4, 320. 
 ADVERTISING FOR BIDS, 
 
 must not fix prices on any material. 
 
 See Street Assessments, 290. 
 must be open competition, 290. 
 AFFIDAVIT, 
 
 See Verification to Assessment Lists, 5. 
 of publication of petition for organization of swamp land districts (in 
 California. ) 
 
 See Swamp Land Districts (in California), 341, n. 1. 
 AFTER JUDGMENT, 
 
 too late for curative acts. 
 
 See Defective Assessments and Cttrative Acts, 234. 
 AFTER SHERIFF'S SALE, 
 before redemption ; 
 assessment to owner of legal title. 
 
 See Name of Owner, 68; 104, n. 2. 
 
 after sale of public lands, before patent may be taxed to purchaser. 
 
 See Possessory Rights to Public Lands, 104, n. 1. 
 
INDEX. 555 
 
 AFTER SUIT COMMENCED, 
 
 whether or not curative acts can cure defect. 
 See Defective Assessments and Curative Acts, 233, n. 1. 
 AFTER WORK DONE, 
 
 assessment cannot be levied for in swamp land districts. 
 See Swamp Land Distiucts (in California), n. 353. 
 AGENT, 
 
 when property to be listed to, or to person having charge. 
 
 See Situs, 43, n. 2; n. 1, 44. 
 choses in action : when held by, subject to owner's order in another 
 
 county within the state, 44, n. 1. 
 when held in same state, for reinvestment, n. 1, 44. 
 of non-resident; when not in possession of chose, 44, n. 4. 
 when in his possession and taxable to — not to principal, 44. 
 or principal, which to be assessed — facts which determine, 44. 
 when the occupant may be assessed, n. 4, 62. 
 California: fiduciary character to be added to name, 66, n. 2. 
 Illinois: property in hands of, how ^o be listed, n. 3, 66. j 
 refusal of agent to return list, n. 3, 66. 
 when grain purchased and held by, not in transitu, n. 1, 66. 
 when authorized, may sign petition for street improvements. 
 See Stbeet Assessments, 280. 
 AGGRIEVED PARTY, 
 who is. 
 
 See Amending and Reviewing Assessments, 195; 195, n. 3. 
 only person who can complain of assessment, 195, n. 4. 
 injury must be direct, not remote, 195. 
 who is not an aggrieved party, 195. 
 omission: in plans and specifications for street improvements, when 
 
 slight, no injury to bidder, n. 5, 195. 
 condition : only party to, can complain, 195, n. 6. 
 concluded by not appearing before board of equalization. 
 See Boakd of Equalization, 154. 
 See Stbeet Assessments, n. 3, 322. 
 
 AMENDING DESCRIPTION, 
 
 in assessment of real property. 
 
 See Real Pboperty, 90. 
 See Amending and Reviewing Assessments, 191. 
 AMENDING AND REVIEWING ASSESSMENTS, 
 
 within legislative control, 191. 
 
 amendment to description, 191, n. 1. 
 
 amendment by legalizing assessment roll, 190, n. 2. 
 
 amendment by legal process, 191, n. 3; 90. 
 
 Reviewing: when valuations not reviewable, 192. 
 
 when assessor had no jurisdiction, 192. 
 
 when valuation presumptive of corruption or fraud, courts will relieve, 
 192, n. 1. 
 
 allegations of fraud giving courts jurisdiction, n. 2, 192. 
 
 discrimination against non-resident, n. 3, 192. 
 
 validity of assessments : may always be tested somewhere, 193. 
 
656 ' INDEX. 
 
 AMENDIKG AND REVIEWING ASSESSMENTS— continuet?. 
 
 snit to collect tax or enforce by sale; on seizure of personal property; 
 
 or for possession after sale of real property, 193. 
 vacating assessments after payment of tax, 194. 
 when illegal item included, n. 1, 194. 
 ignorance of facts of illegality when paid, n. 1, 194. 
 tax assessments: in nature of judgments, n. 1, 194. 
 cloud on title: when, n. 1, 194. 
 
 "AND OTHERS," 
 
 creates uncertainty when added to name of owner. 
 
 See Real Estate, n. 3, 80. 
 who is an aggrieved party, 195, n. 3; 195, n. 4. 
 
 APPEALS, 
 
 from valuation of assessor; to board of equalization, when list fur- 
 nished, 4. 
 refusal to furnish list; not allowed, 4. 
 what constitutes refusal. 
 
 See Assessment List, n. 4, 4. 
 wrong county: assessment in; may be enjoined without appeal to 
 
 board, n. 3, 45. 
 from action of board of equalization ; not allowed. 
 
 See Valtjation, n. 8, 138. 
 California: provisions of repealed statute, n. 8, 138. 
 Illinois: provisions for appeal to courts provided for. 
 See Board of Equalization, n. 1, 158. 
 from drainage assessment. 
 
 See Drainage Assessments, 335, n. 1. 
 APPEARANCE, 
 
 after addition to assessment without notice, no waivef. 
 See Board of Equalization, 156, n. 1. 
 to petition for swamp land district : failure to object — concluded, 362. 
 ARKANSAS, 
 
 statute of: providing against errors in tax proceedings — construed. 
 
 See Name of Owner, n. 5, 61. 
 statute making deed conclusive evidence : restricted to prima facie only. 
 
 See Dub Process of Law, n. 7, 251. 
 act of Congress, donating wet lands for reclamation. 
 
 See Swamp Land Districts (in California), 352. 
 ASSESSMENTS, 
 
 which are taxes, defined, 1. 
 
 distinction' between, and a tax, 1. 
 
 by a municipal corporation, confined to property benefited by a private 
 
 corporation, defined, 1. 
 legislature may levy for local improvements, n. 4, 1. 
 legal meaning of the word, n. 6, 1. 
 which are not taxes, defined, 2. 
 
 "assessment" and "assessed," words defined, 2, n. 8. 
 necessary to support a tax, 3, n. 1. 
 initial step in taxation, 3. 
 cannot be dispensed with, 3. 
 
INDEX. 557 
 
 ASSESSMENTS— co/itiwued. 
 
 aggregate valuation of state or district, used to determine rate of taxa- 
 tion, 3. 
 when made without notice, not due process of law, 4; n. 6", 4. 
 form and requirements of assessment roll, 
 
 See Assessment Eoll, 6, 20, 223, 224. 
 made periodically, usually once each year, 7. 
 in some states, with reference to hour and day, 7. 
 subsequent changes not recognized, 7. 
 
 notwithstanding agreement between buyer and seller to the 
 contrary, n. 2, 7. 
 of property brought into tax district after date, 7. 
 
 when brought in from without the state, not assessable, n. 3, 7. 
 Iowa: names of owner, and on " transfer books," n. 2, 7. 
 must be made by assessor or other proper oflBcer, 8. 
 to be made to owners of the property, 8. 
 when name not known, to unknown owners, 8. 
 must be entered in the assessment roll, 8. 
 form, usually prescribed by statute, 8. 
 
 must be at least substantially complied with, 8. 
 articles and classes, separate tracts must be stated and valued, and 
 
 taxes stated separately, 8. 
 effect of valuations in gross, 8, n. 2. 
 injury for violation of requirement presumed, n. 3, 8. 
 no injury for stating taxes separately where aggregation provided for, 
 
 8, n. 8. 
 assessments invalid, unless assessors act within statute, 8, li. 5. 
 assessors have no jurisdiction except within statutory provisions, n. 5, 8. 
 proper officer only can make, 10, n. 1. 
 when organic law designates officer, no other can, 10, n. 1. 
 property overlooked — when collectors may assess, 10. 
 in such cases, hearing for equalization must be provided for, 10, n. 2. 
 their proceedings not reviewable except for fraud, 10, n. 3. 
 valid, tax to be must rest on assessment, n. 1, 10. 
 when perfected, not till close of assessments, n. 1, 22. 
 changing domicile: before assessjnent perfected, jurisdiction lost, 
 
 n. 1, 22. 
 when made in wrong county not necessary to appeal to board of equal- 
 ization before injunction, n. 3, 45. 
 Where property assessable. 
 
 See Situs, 30. 
 To whom property assessable. 
 
 See Name of Ownek, 60. 
 property exempt from taxation should not be included in assessment. 
 
 See Exemption fbom Taxation, 165. 
 exemption from taxation does not include exemption from assessments 
 
 for local improvements, 169, n. 12. 
 equality and uniformity: doctrine of, must be applied to assessments. 
 
 See Equamty and Uniformity, 185. 
 presumption— made by three or more; presumption favors. 
 See Presumptions and Estoppels, 206. 
 
558 ■ INDEX. 
 
 ASSESSMENTS— coniinweiZ. 
 
 made of property outside of assessor's district; curable by after-legis- 
 lation. 
 See Defective Assessments and Cukative Acts, 232. 
 
 contrary view in People v. Goldtree, n. 1, ^?,1. 
 
 omission of acts necessary to acquire jurisdiction, 236. 
 
 which are a special tax; meaning of differs from " taxation." 
 See Street Assessments, 275. 
 
 mode of making street assessments, 307. 
 
 to property benefited by uniform and equitable rule, 307. 
 
 by front foot; by acre or other subdivision; in proportion to bene- 
 fits, .307. 
 
 cash valuation, sometimes adopted, 307. 
 
 whether a general or special tax for local street improvements, 307. 
 
 when discretionary, discretion not reviewable, 308. 
 
 sometimes part general and part local tax, n. 308. 
 
 power of determining, may be vested in municipality, n. 308. 
 
 assessment liens; priority of, 324. 
 
 does junior lien prevail over senior ? 324, n. 1. 
 
 statute regulates, 324, n. 2. 
 
 California, Iowa, Kansas, Oregon. 
 
 See Stkkbt Assessments, n. 1 and 2, 324. 
 
 seeker after equity must do equity. 315, n. 3. 
 
 not made as required, can be attacked whenever enforcement attempted, 
 322, n. 3. 
 
 made by swamp land districts (in California), enforced by suit. 
 See Swamp Land Districts (in California), n. 3, 343. 
 
 swamp land districts ; may make, proportionate to expense and to bene- 
 fits, 347. 
 
 district must first survey, plan, locate and estimate cost of reclama- 
 tion, 35.3. 
 
 board of supervisors appoint commissioners to make, 353. 
 
 must be made according to benefits, 353. 
 
 cannot be made under Code when district organized prior to 1868, 
 356, n. 1. 
 
 proceedings must be under statute, 356, n. 1. 
 
 liability; against property assessed only, n. 1, 358. 
 
 two: may be enforced in same suit, 360, n. 1, 361. 
 
 must be for same improvement, 360, n. 2. 
 
 "calls" and "assessments" defined. 
 
 See Private Corporation Assessments, 363. 
 
 when not materially different from " calls," 363, 364. 
 
 designates charges upon stock fully paid, 364. 
 
 power to assess full paid stock, not always conferred, 364, 365. 
 
 Ohio: statute authorizing, held unconstitutional, n. 1, 364. 
 
 California: for paying debts, expenses and conducting business, may 
 be levied, 365. 
 each not to exceed 10 per cent, of capital stock, .365. 
 exception, when for debts, may equal unpaid capital, 365. 
 when an insurance company, without limit, 365. 
 
INDEX. ] 659 
 
 ASSESSMENTS— coJiiinueiJ. 
 
 in California, cannot be levied, for unpaid capital stocli of mining cor- 
 porations, n. 1, 865. 
 assessments only for authorized purposes, 365. 
 call-assessments : may be levied for capital stock, when required 
 
 to have subscribed capital, 365, n. 3. 
 may waive stock liability and pursue personal liability, 365, n. 3. 
 power to make, determined by charter or statute, 366. 
 conditions precedent: must be complied with, 366, n. 2. 
 invalid, when less number of shares subscribed than are required, 368. 
 conditional subscription: when cannot be considered, 366, n. 4. 
 check: where drawer has no funds, no payment, 366, n. 5. 
 before levy of assessment, required subscription must be made, 368. 
 same day, if after levy, not valid, 368, n. 1. 
 certificate of incorpoiation, must be filed before levy, 369. 
 consolidation certificate, same rule, 369. 
 
 maximum : when fixed in charter, assessment cannot exceed, 369, n. 1, 2, 
 statute authority: cannot be restricted by by-laws, n. 2, 369. 
 by-laws: cannot inhibit when authorized by law, n. 2, 369. 
 California: order, what to contain, 370. 
 jurisdiction: how acquired to sell stock, 370. 
 notice of assessment: form and requirements of, n. 1, 370. 
 
 of delinquency and sale: form and requirements of, n. 2, 370. 
 ASSESSMENT DISTRICT, 
 boundaries of, to be defined. 
 
 See Steeet Assessments, 297, n. 1; 297, n. 2. 
 ASSESSMENT LIENS, 
 priority of. 
 
 See Street Assessments, .324. 
 does junior prevail over senior liens? 321 ii. 1; 321. 
 statute regulates, 324, n. 2. 
 
 California: rule under charter of San Francisco, n. 2, 324. 
 purchaser: takes title freed from, 324, n. 1. 
 Iowa: rule stated, n. 1, 324. 
 Kansas: same rule, n. 1, 324. 
 Oregon: rule for docketing, n. 2, 324; n. 4, .324. 
 ASSESSMENT LISTS, 
 
 Blanks usually furnished tax-payers, 4. 
 property classified for their convenience, 4. 
 values, when given, are not conclusive on assessors, 4. 
 constitute first step of an assessment, 4. 
 serve as information to assessors, 4. 
 
 when required, to each article or class of property, value fixed accord- 
 ing to party's own judgment, 4. 
 statutory requirement, that assessors shall receive " as the true valua- 
 tion," list returned, construed, n. 2, 4. 
 valuation, to be official estimate of officer, 4. 
 appeal, to board of equalization allowed, n. 3, 4. 
 refusal or neglect to furnish list, forfeits right of appeal, 4. 
 what will constitute a refusal or neglect, n. 4, 4. 
 where list not required and appeal to board allowed, 4, n. 6. 
 
560 INDEX. 
 
 ASSESSMENT 'LISTS— continued. 
 
 ■when assessor to make up list from best information, 4, n. 7. 
 
 when list made by assessor, should show refusal of tax-payer, n. 7, 4. 
 
 plan of lands to be assessed, showing lots sold, not sufficient list, 5. 
 
 waiving list : assessor has no power to waive, 5. 
 
 verification : must he sworn to when statute requires, 5. 
 
 what held to excuse omission, 5. 
 
 waiver of oath to have mortgage deducted, construed, n. 4, 5. 
 
 printed list, usually furnished to tax-payers. 
 See Valuatiost, 130. 
 
 furnishing list after expiration of time not sufficient, 5, n. 3. 
 ASSESSMENT ROLL, 
 
 defined, 6. 
 
 form or matter contained in certificate or affidavit appended to, man- 
 datory, 6. 
 
 legislature may provide against omissions and defects of, 6. 
 
 without such provision, omissions and defects invalidate, n. 1, 6. 
 
 provision in Political Code of California, n. 2, 6. 
 
 provision against " unjust assessment through malice " in Washington 
 Ter. Code, n. 3, 6. 
 
 form; may be adapted to meet statutory requirements, n. 9. 
 
 when completed, stands as a judgment, n. 3, 20. 
 
 tax items: to be kept in separate columns, 223. 
 
 certificate to, must contain language of statute. 
 
 See Mandatoky and Dibectobt, 224, n. 3. 
 ASSESSOR, 
 
 has no jurisdiction to make assessment except within statutory pro- 
 vision, n. 5, 8. 
 
 See Assessments, 8. 
 
 unless they act within the statute assessment void, 8. 
 
 jurisdiction: when none over person and property, personally liable, 20. 
 
 not liable for error of judgment, 20. 
 
 position of: not materially different from other officers, 20. 
 
 exemption: erroneously refusing to allow, not liable, 20, n. 4. 
 
 national bank: erroneously fixing values on shares of, 20. 
 
 non-jurisdictional fact, error in determining, 20. 
 
 law: error in detennining, when not involving jurisdiction, 20, n. 3. 
 
 act judicially on questions of law and fact, 20. 
 
 acts are of a judicial nature, n. 1, 20. 
 
 act both judicially and ministerially in making assessments, 25. 
 
 are quasi judicial officers, n. 3, 20. 
 
 has the immunity of judicial officers, n. 3, 20. 
 
 personally liable: when acts are without authority, 21. 
 
 done without jurisdiction over person or property, 21. 
 
 good faith: when good faith will not exonerate, 21. 
 
 not taxable: when not subject to taxation, liable, 21, n. 1. 
 
 no power: when no power to act at all, liable, 21, n. 2. 
 
 erroneous decision of fact necessary to jurisdiction, 21, n. 3. 
 
 jurisdiction: must have over person and subject matter, n. 2, 21. 
 
 error of fact in favor of jurisdiction, individually liable, 22. 
 
 error of law in favor of jurisdiction, same result, 22. 
 
INDEX. 561 
 
 ASSESSOR— continued. 
 
 time: facts must correspond with date closing assessments, n. 1, 22. 
 
 correct at former date, but erroneous as of that date, liable, n. 1, 22. 
 
 assessment not completed till close of assessment roll, n. 1, 22. 
 
 jurisdictional questions, often difScult to determine, 23. 
 
 error, in favor of jurisdiction, creates individual liability, 23. 
 
 liability or exemption therefrom, depends on correct conclusions of law 
 and fact, 23. 
 
 two residences: when tax-payer has two residences, 23. 
 
 New York: statutory rule in New York where taxable, 23, n. 2. 
 
 hard rule: holding assessors liable for erroneous decision of jurisdic- 
 tional facts, 23. 
 
 same rule applies to courts of limited jurisdiction, 23. 
 
 district and county lines: liable for error in determining district or 
 county lines, n. 1, 23. 
 
 statute construed: making liability only for want of integrity, n. 1, 23. 
 
 when the town only liable, n. 1, 23. 
 
 domicile: difficulty in determining which place is, n. 1, 23. 
 
 when evidence so evenly balanced tliat tax-payer may determine,n. 1, 23. 
 
 but erroneous decision by assessor creates liability, n. 1, 23. 
 
 as between two residences, conflicting decisions of courts and judges, 
 n. 2, 23. 
 
 liability for omissions of duty and errors committed, including for want 
 of knowledge, 24. 
 
 liability only when provided for by statute, 24, n. 5. 
 
 sureties of: when sureties of also liable, 24. 
 
 no liability where no loss sustained, 24. 
 
 omissions of previous year cannot be included without statutory author- 
 ity, 20. 
 
 when not regular officer, authority to appear, 20. 
 
 overlooked property : assessment of, 20. 
 
 in Oregon: sheriff may assess and collect taxes on, n. 4, 21. 
 
 acts of, are "eminently judicial in their nature," 25. 
 
 remedy for persons aggrieved: appeal as provided for, 25. 
 
 act judicially determining questions of residence, n. 1, 25. 
 
 California: in California opposite view expressed, n. 1, 25. 
 
 time: must determine domicile of tax-payer when assessment per- 
 fected, 35. 
 
 perfected at close of assessment roll, 35. 
 
 in some states, with reference to a specified day, 7. 
 
 rule in California, n. 1, 7. 
 
 in Massachusetts, n. 1, 35. 
 
 must determine correctly taxable residence when assessment perfected, 
 n. 1, 35. 
 
 defective affidavit to assessment, no objection to re-assessment, n. 4, 197. 
 
 may be disqualified to impeach assessment. 
 
 See MANbATOKY and Dieectorv, n. 6, 220. 
 ASSISTANTS, 
 
 and deputies. 
 
 See Officbk, 14. 
 
 how to sign and acknowledge deeds executed by, 14, n. 3. 
 36 
 
562 INDEX. 
 
 ATTEMPT, 
 
 when to list to owner, true name must be given. 
 See Name op Owner, 65. 
 ATTORNEYS' FEES, 
 
 when not improper item in swamp land assessment. 
 See Street Assessments, 302, n. 3. 
 AWARDING CONTRACT, 
 for improvement work. 
 
 See Street Assessments, 290. 
 
 B. 
 
 BEGINNING AND ENDING, 
 of exemption from taxation. 
 
 See Exemption from Taxation, 179. 
 begins and ends with user, n. 1, 179. 
 BEGINNING, COURSE AND TERMINUS, 
 of ditch, must be stated. 
 
 See Drainage Assessments, 332, n. 2. 
 need not be stated in complaint to enforce assessment, 337, n. 2. 
 BENEFICIARY, 
 
 or person for whom property held; when title in. 
 See Name of Owner, 67, n. 2. 
 BENEFITS, 
 
 assessments for street improvements cannot exceed, 275. 
 
 all in excess; without due process of law, 275. 
 
 arbitrary estimate; not actual benefits, illegal, 275. 
 
 true doctrine: assessments not to exceed, 275. 
 
 assessments: to property benefited ; according to equitable and uniform 
 
 rule, 307. 
 discretion : when exercised to levy cost according to benefits, presump- 
 tion of, 309; 11. 1, 2, 309, 
 assessment on frontage, without regard to, 309, n. 3. 
 fraud: in absence of, determination on, conclusive, 399, n. 4. 
 New Jersey: assessment of enth'e cost on frontage without regard to, 
 
 n. 4, 309. 
 assessment exceeding actual, n. 4, 309. 
 
 presumption of, to extent of cost; when not indulged, n. 4, 309. 
 how much, if any, issue may be raised. 
 
 See Drainage Assessments, 337. 
 if less than all land benefited, must be described in verdict, 337, n. 1. 
 if not proportioned to charges. 
 
 See Swamp Land District (in California), n. 3, 343. 
 assessments to be proportionate to expense and to, 347. 
 equality and uniformity: of general taxation, not applicable to local 
 
 assessments, 351, n. 3. 
 cost: when distributed in proportion to, sufficient, 351. 
 assessments must be made in proportion to, 353. 
 cost and expenses: cannot be apportioned regardless of, 353. 
 errors in values of, to each tract, not a defense, 355. 
 may be greater to lands in one part than in another, of district, 857, n. 1. 
 
INDEX. 563 
 
 BIDS, 
 
 advertising for. 
 
 See Street Assessments, 290. 
 See Lowest Biddek, n. 5, 290. 
 BLOCK, 
 
 when assessments for local improvements confined to half value and 
 no lot value ever made. 
 
 See Street Assessments, 303, n. 3. 
 BLENDING, 
 
 items of tax required to be kept separate. 
 
 See Mandatory and Dikectort, 223, n. 1. 
 BLOCKS AND LOTS, 
 
 how described in assessments. 
 
 See Eeal Estate, SO, n. 5. 
 BOAKD OF EQUALIZATION, 
 appeal to from assessment, 4. 
 except when refusal to furnish list, 4. 
 refusal, what constitutes. 
 
 See Assessment List, n. 4, 4. 
 avoiding taxation: may determine attempts to, n. 2, 45. 
 wi'ong county: when assessed in, may enjoin without appeal to, n. 3, 45. 
 equalization: necessity of, to equalize taxation, 151. 
 in some states done wholly by county boards, 151. 
 in others by both county and state boards, 151. 
 state boards: supervise action of county boards, 151. 
 objections: necessity for receiving and hearing, 151. 
 boards are also provided for municipal corporations, 151. 
 special assessments: equalization of, provided for, 151, n. 1. 
 refusal : to furnish list, denied hearing before, 151. 
 created by organic law, or by statute, 152, n. 1. 
 
 language in constitution, conferring power to create stale board, 152, n. 1. 
 whether or not power exists when no express provision in organic 
 
 law, n. 1, 152. 
 powers: only such as conferred by constitution or statute, 153, n. 1. 
 adding other property to assessments : no power unless specially au- 
 thorized, 153, n. 2, 154, n. 1. 
 res ad judicata: does not apply to proceedings before, 152, n. 2a. 
 raising valuations of entire counties: when money and solvent debts 
 
 on roll at full value, n. 3, 153. 
 majority: acts of, constitute action of board, n. 3a, 153. 
 notice : necessary to persons to be affected, 154. 
 powers, when prescribed by constitution, cannot be added to by statute, 
 
 154, n. 3. 
 where, "to equalize," cannot raise valuation of entire roll without 
 
 notice to each owner, 153, n. 4. 
 injunction: maybe maintained for raising valuation without notice, 
 
 n. 4, 154. 
 when time and place of meeting of board fixed by law; must take no- 
 tice, 154, n. 5, 5a. 
 when state board meets at time and place fixed by law; must take 
 notice, 154, n. 6. 
 
564 INDEX. 
 
 BOARD OF EQUALIZATIOK— continwe^. 
 
 due process of law: requires that opportunity to be heard be afforded, 
 154a, n. 1. 
 
 provision must be made in the law, for opportunity, 154o. 
 
 fourteenth amendment: requires "due process of law," 154a. 
 
 time of meeting of board, being fixed by law, not notice, 154 a. 
 
 statement furnished by railroad company, not equivalent of notice, 
 n. 1, 154 a. 
 
 California: assessments by state board of equalization; notice forbear- 
 ing objections must be given, n. 1, 154a. 
 
 notice: must be given in some form, n. 2, 154a. 
 
 due process of law: reasonable opportunity to be heard as to listing 
 and valuation, n. 2, 154o. 
 
 notice: what facts should be stated in, 155. 
 
 complaint: against an assessment, should specify objections, 155, n. 1. 
 
 general charge against each assessment on entire roll, as to the value, 
 insuiflcient, n. 1, 155. 
 
 notice: when required, necessary to give jurisdiction, 156. 
 
 appearance: after addition made without notice, no waiver, 156, n. 1. 
 
 notice when required, must appear affirmatively, 156, n. 2. 
 
 jurisdiction: when acquired only by giving notice, n. 2, 156. 
 
 without notice: previous year's uncollected tax, when statute requires, 
 157. 
 
 omission: to enter order; may be done after adjournment, 157, n. 1. 
 
 boards act judicially; their action final, 158, n. 1, 2. 
 
 Illinois: appeal to courts provided for, n. 1, 158. 
 
 refusal to furnish list; not entitled to hearing, 159. 
 
 when not entitled, board has no jurisdiction, 159. 
 
 corporation: when particular officer to furnish statement; must be 
 subscribed by, 159, n. 1. 
 
 statement must be signed as well as sworn to, n. 1, 159. 
 
 list: only necessary to furnish when statute requires, 160. 
 
 when not entitled to hearing; entitled to relief against fraudulent valu- 
 ations, 161. 
 
 ■public policy: to prohibit boards of equalization from making original 
 assessments, 162. 
 
 power may be cpnferred, 162, n. 1. 
 
 corporations operating railroad in two or more counties, n. 1, 162. 
 
 state board of equalization: when making assessments, not controlled 
 by furnished statements of corporations, n. 2, 162. 
 
 value: how boards of equalization acquire knowledge of, 163, n. 1. 
 
 cannot arbitrarily fix values beyond actual value, 163, n. 2. 
 
 evidence: not bound by; may fix values on personal knowledge of 
 values, 163. 
 
 re-assessments must be subject to equalizatinn. 
 
 See Re-assessments, 197c. 
 
 BONDS, NOTES AND OTHER CONTRACTS, 
 
 treated as personal property. See Situs, 43. 
 BOUNDARY, 
 
 when description by, must be complete within itself. 
 See Real Estate, 87. 
 
INDEX. 665 
 
 BOUNDARY— coirtinuetZ. 
 
 of district to be assessed, must be defined. 
 
 See Street Assessments, 297. 
 must be "definite scheme" for apportionment of a tax, 297, n. 1. 
 BRIDGES, 
 
 abutting upon opposite banks of stream constituting state line. 
 See Situs, 50, n. 3. 
 BUILDING, 
 
 more than one story high, owned by two or more in severalty. 
 
 See Real Estate, 91, n. 1. 
 how described and assessed, 91, n. 2. 
 exemption: lower story vised for secular; upper, for religious purposes, 
 
 n. 2, 91. 
 valuation: of part only, used for secular purposes. 
 
 See Valtjation, 140. 
 how value of ground apportioned, n, 1, 140. 
 when separate stories owned in severalty, 140, n. 2. ' 
 
 whether or not land valued to owner of lower story, 140, n. 3. 
 erected on leased school lot, not exempt, n. 1, 16.5. 
 erected on leased exempt ground, used for purposes not exempt, 
 
 169, n. 5. 
 lodging-houses: of religious and charitable corporations, letting rooms 
 
 for hire, 169, n. 6. 
 intended for "meeting house" not exempted while being erected, 
 169, n. 18. 
 BURDEISr OF PROOF, 
 
 on charge of double taxation. 
 
 See Valuation, 131, n. 5. 
 ■when on party making objections. 
 
 See Pkestjmptions and Estoppels, 205, 206. 
 to show expense of local improvement less than half. 
 See Street Improvements, 303, n. 2. 
 BUYER AND SELLER, 
 
 as between, after assessment made, cannot be changed. 
 See Assessments, 6. 
 BY-LAWS, 
 
 after organization of swamp land district (in California), petitioners 
 may make. 
 
 See SwAAfP Land Districts (in California), 347. 
 majority of petitioners must sign, 347. 
 must be recorded, 347. 
 
 maximum of indebtedness fixed by, when not binding, 369, n. 2. 
 statutory authority: by-laws cannot restrict, n. 2, 369. 
 assessments: by-laws, when cannot inhibit, n. 2, 369. 
 
 c. 
 
 CALIFORNIA. 
 
 mortgage and trust deed, made an interest in land, 44, n. 6. 
 
 when fiduciary or representative character to be added to name, 66, n. 2. 
 
 estoppel: as to personal property, when description furnished, 84, n. 2. 
 
566 INDEX. 
 
 CALIFORNIA— continued. 
 
 possessory right : listed as real estate, n. 4, 100. 
 
 franchise: taxation of all property of corporation, held to include, 
 
 n. 5, 133. 
 corporations: property and franchise only assessed, 134, u. 1. 
 ' valuations: rule prescribed by Political Code, ii. 2, 136. 
 paying tax and suing to recover excess of valuation, n. 8, 138. 
 lumping assessments: valuation in gross of distinct classes of personal 
 
 property, criticised, n. 3, 141. 
 debts and mortgages: assessed at face value, may be increased. 
 See Board op Equalization, h. 3, 153. 
 But see Dissenting Opinion, n. 3, 153. 
 unlimited power of legislature to cure defective assessments, n. 3, 230. 
 minority opinion subsequently followed, n. 3, 230. 
 modes of acquiring jurisdiction to make street assessments In San 
 
 Francisco, 276. 
 joint assessments of sepai-ate tracts, invalid. 
 
 See Sep ABATE Parcels, n. 2, 111. 
 values fixed by railroad coi'poration : not binding on assessing officers, 
 
 n. 4, 131. 
 corporations: property and franchises only assessed, 134, n. 1. 
 Assessments made by state board of equalization: notice forbearing 
 
 objections must be given, n. 1, 154o. 
 petition: for sti-eet improvements in Sau Francisco, what must contain. 
 
 See Street Assessments, 279, n. 1. 
 resolution and notice: what must contain, 279. 
 resolution not required to be signed by mayor: by clerk, and published, 
 
 n. 1, 279, n. 1, 2, 4, 5, 282. 
 how proceedings for street improvements initiated, n. 1, 281. 
 new constitution: before street improvement contracts can be let, must 
 
 levy and collect assessment, 282. 
 this provision self-executing, 282, n. 2. 
 assessments for local improvements: lien only, 310, n. 3, 4. 
 irrigating ditch: included in new township after proceedings com- 
 menced, jurisdiction lost, n. 1, 3.39. 
 for what purposes private corporations may assess shares of stock. 
 
 See Private Corporation Assessments, 365. 
 order levying assessment: what to contain, 370. 
 jurisdiction: to sell shares, how acquired, 370. 
 notice of assessment: form and requirements, 370. 
 of delinquency and sale : form and requirements, 370. 
 CALLS 
 
 and assessments, defined. 
 
 See Private Corporation Assessments, 363, 364. 
 when not materially different, 363, 364. 
 generally only enforceable by sale of shares, 363, n. 2. 
 when sale only provided for; no other remedy, 363, n. 3. 
 personal liability of: when subscription so framed, 363, n. 4. 
 same rule applies to assessments, 363, n. 5. 
 ■ never designated " calls" after shares paid, 364. 
 when made; same rules apply as making assessments, 365. 
 
INDEX. 567 
 
 CALLS — continued. 
 
 California: call-assessments cannot be levied for capital stock of mining 
 corporations, n. 1, 365. 
 may, in corporations for profit, 365. 
 when may be waived, and personal liability pursued, 365. 
 CASH VALUE, 
 
 and "actual value " defined. 
 See Actual Value, 130, n. 5; 185, n. 2; 136, n. 1, 2. 
 CEETAINXr, 
 
 description must be complete within itself. 
 
 See Keal PKOPERiy, 85, n. 1. 
 in street assessments may refer to diagram, 94. 
 without dollar mark; void for uncertainty. 
 
 See Mandatoby and Dihectory, n. 1, 225. 
 of description required in street assessments. 
 
 See Street Assessments, 299. 
 of description in drainage assessment sustaining a mortgage; sufficient. 
 See Drainage Assessments, 335. 
 CEKTIFIOATE, 
 
 when required to state certain facts: mandatory. 
 
 See Mandatory and Directory, n. 1, 2, 221. 
 of incorporation: must be filed before levy of assessment. 
 See Private Coeporation Assessments, 369. 
 of consolidation of two or more corporations; same rule, 369. 
 CHANGING KESIDENCE, 
 
 must lose old, before acquiring a new. 
 See Situs, 38. 
 CHARTERS, 
 
 and general statutes control assessments of corporations. 
 See Valuation, also Corporations, 131. 
 CHATTELS, 
 
 have actual situs, although movable. 
 
 See Situs, 43. 
 situs of, in legal sense, domicile of owner, 43. 
 
 unless a different one acquired, 43. 
 when severed from domicile of owner, may acquire other situs, 43. 
 doctrine applies to all taxable piroperty, 43. 
 exceptions: property temporarily in district, n. 2, 43. 
 CHECK, 
 
 when not considered as payment. 
 
 See Private Corporation Assessments, 366, n. 5. 
 CHOSES IK ACTION, 
 power to tax includes. 
 
 See Situs, 34. 
 deposit of money out of tax district, 39. 
 out of district by executor, 39. 
 word used in general sense does not include property, 39. 
 follow person of owner, when not otherwise provided, n. 5, 39. 
 may acquire independent situs, when severed from domicile of owner, 43. 
 notes and other contracts, treated as personal propei'ty, 43. 
 bank deposit, n. 4. 45. 
 
568 , INDEX. 
 
 CHOSES liSr ACTION— continued. 
 defined, 126, n. 1. 
 
 assessable only when made so by statutory or organic law, 126, n. 2. 
 how described in assessments, 126, n. 3. 
 when taxed: liability to double taxation, n. 7, 126. 
 CHURCH, 
 
 exemption of: does not include parsonage. 
 
 See Exemption, n. 17, 169. 
 CIRCUS, 
 
 property of, while traveling and exhibiting. 
 See Situs, n. 5, 41. 
 CLAIM, 
 
 of right and possession to public lands. 
 
 See Possessory Rights to Public Lands, 101, n. 1. 
 of title to public lands, by grant from foreign governments, assessable 
 
 at reasonable value, 102, n. 1. 
 uncertainty of title, no objection, n. 1, 102. 
 unliquidated demand, not taxable. 
 
 See Peesonal Peopeety, n. 5, 126. 
 CLAIM TO PUBLIC LANDS, 
 
 right and ownership of : when taxable. 
 
 See PossEssoKY Rights to Public Lands, 101, n. 1. 
 to title through foreign grants, 102, n. 1. 
 CLASSIFICATION, 
 
 of real and personal property: within province of legislature, 127. 
 CLOUD OF TITLE, 
 
 when an invalid tax is. 
 
 See Amending and Reviewing Assessments, 194. 
 COAL, 
 
 brouglit from one state to another awaiting shipment. 
 See Situs, n. 5, 41. 
 COLLATERAL ATTACK, 
 for want of jurisdiction. 
 
 See Steeet Assessments, 279, n. 2. 
 when only for fraud. 
 
 See Swamp Land Disteicts, 355; 362, u. 3. 
 COMMISSIONERS, 
 
 to assess expenses and benefits. 
 
 See Swamp Land Districts (in California), 347. 
 must jointly view and asse'ss, 354. 
 all must join, majority not sufficient, 354. 
 return not conclusive: may be collaterally attacked, 354, n. 4. 
 must be disinterested. 
 
 See Street Assessments, 297. 
 freeholder of district, not qualified, 297. 
 COMMON NAME, 
 
 when used in carrying on a business. 
 
 See Name of Owner, 70, n. 4. 
 must be to name or names of owners, 70, n. 4. 
 
INDEX. 569 
 
 COMPLAINT, 
 
 to enforce assessments, facts not necessary to allege. 
 See Dkainagb Assessments, 337, n. 2. 
 facts necessary to allege, n. 4, 337. 
 COMPETITION, 
 
 work for public improvements must be open to. 
 
 See Street Assessments, 290. 
 patented processes and material: generally cannot be used, 295, n. 2. 
 COMPLETION AND ACCEPTANCE, 
 condition precedent to assessment. 
 
 See Street Assessments, 291; 298, n. 2. 
 completion of ditch : not a condition precedent to assessment. 
 
 See Drainage Assessments, 334, u. 4. 
 completion after bills certified, valid, 298, n. 2. 
 CONCLUSIVE, 
 
 matters determined by competent tribunal. 
 
 See Street Assessments, n. 1, 278. 
 See Swamp Land Districts (in California), 362. 
 decisions of boards of equalization unless appeal provided for. 
 
 See Board op Equalization, 158, n. 1. 
 Arkansas: statute making tax deed conclusive, restricted to prima 
 facie evidence only, n. 7, 251. 
 CONDITIONS PEECEDENT, 
 
 offer to pay just proportion, to obtain relief from excessive valuation. 
 See Name op Owner, 64, n. 2. 
 See Equality and Uniformity, n. 6, 186. 
 oath when required. 
 
 See Mandatory and Directory, 220. 
 plans and specifications: making and exhibiting. 
 See Street Assessments, 290. 
 recording articles of association before making assessments. 
 
 See Drainage Assessments, 333, 334. 
 when specified number of shares to be subscribed. 
 
 See Private Corporation Assessments, 366, n. 2. 
 CONDITIONAL SUBSCRIPTION, 
 
 not considered part of required number of shares. 
 
 See Private Corporation Assessments, 366, n. 5. 
 CONFLICT OF JUEISDICTIONS, 
 
 between states as to subjects of taxation, 190a. 
 
 relate principally to debts and credits : sittis of, and domicile of debtor 
 and creditor, 190a. 
 CONGRESSIONAL SUBDIVISION, 
 lands may be described by. 
 
 See Real Estate, 80. 
 CONTRACT, 
 
 for street assessments In California, must collect assessments before 
 making. 
 
 See Street Assessments, n. 5, 290. 
 when by, or by day's work; body having discretionary power only, 
 must determine. 
 
 See Street Assessments, 296. 
 
570 INDEX. 
 
 CONTRACT— continued. 
 
 letting, before plans and specifications filed, when required: assess- 
 ment void, 321, n. 1. 
 
 CONSTITUTION", 
 
 when restricts assessments to benefits. 
 
 See Stbebt Assessments, 275, n. 3. 
 and statute determine character of liability for street improvements, 
 310, n. 12. 
 
 CJONSTRUCTION, 
 
 of statute requiring assessor to receive list as " the true valuation." 
 
 See Assessment List, n. 2, 4. 
 of statute requiring assessment, at residence when made. 
 
 See Situs, 37. 
 of statutes requiring assessment of personal property at places other 
 than owner's residence. 
 
 See SiTTjs, 40 n. 1, 2, 4. 
 of statute providing for taxation of " all personal property within the 
 
 state." See Situs, n. 2, 43. 
 of statute providing for taxation of mortgages. 
 
 See Situs, 44, n. 3. 
 of statute requiring persons, inhabitants and officers of corporations 
 
 to aid in listing. See Situs, n. 1, 49. 
 of statute requiring all "persons and associations" to be taxed on 
 business, whether residents or not. 
 
 See Situs, n. 3, 49. 
 of statute requiring taxation of corporations where office transacting 
 financial business located, or where operations carried on. 
 See Situs, n. 4, 49. 
 of language in constitutions defining state boundary. 
 
 See Situs, n. 3, 50. 
 of statute providing for taxation of national bank shares. 
 
 See Situs, n. 1, 55. 
 of statute providing for taxation of mortgaged and pledged personal 
 property as applied to shares or stocks. 
 -^ See Situs, n. 6, 56. 
 of statute providing for taxing "right of way," including "side or 
 second track," &c., and "real estate" separately. 
 See Situs, n. 4, 56. 
 of statute of Arkansas, providing against errors in tax proceedings. 
 
 See Name of Owner, n. 5, 61. 
 of statute requiring assessments to owner if known; if not, to unknown 
 
 owners. See Name op Owner, n. 1, 65. 
 of statute providing for description of real estate by metes and bounds, 
 or by common designation or name. 
 
 See Real Estate, n. 2, 82. 
 of statute requiring a " pertinent description of the property so as to 
 identify the same." 
 
 See Real Estate, n. 1, 85. 
 of statute providing for amending descriptions in assessments. 
 See Real Estate, n. 1, 90; n. 3, 191. 
 
I2S^DEX. 571 
 
 CONSTRUCTION— continued. 
 
 of Act of Congress admitting California. 
 
 See PossESsoBY Eights to Public Lands, n. 4, 100. 
 of statute requiring taxation of " all real estate and improvements on 
 
 public lands. See Improvbments, n. 1, 107. 
 of statute requiring description of personal property to be by showing 
 the number, kind, amount and quality of each class. 
 
 See Dbsckiption op Personal Peopbbty, n. 5, 120. 
 of statute requiring different classes of real and personal property to 
 be listed, set down, and valued separately. 
 
 See Pkbsonal Peopbbty, n. 1, 127. 
 of statute exempting property from " all public taxes, rates and 
 assessments." 
 
 See Exemption feom Taxation, n. 14, 169. 
 of Act of Congress exempting the " property of said company and the 
 shares therein " from taxation. 
 
 See Exemption feom Taxation, n. 3, 173. 
 of statute authorizing courts to amend and correct assessments. 
 See Amending and Revibtving Assessments, 191, n. 1, 3; 90. 
 of statute providing for re-assessments of five years' back taxes. 
 
 See Re-assessments, n. 2, 197. 
 of statute making delinquent list evidence. 
 
 See Steeet Assessments, n. 2, 279. 
 of statule providing for mode of doing street work, and system of pay- 
 ment therefor. 
 
 See Street Assessments, n. 2, 296. 
 of act of 1872 amending act of 1868 relating to swamp land districts. 
 See Swamp Land Distkicts (in California), n. 2, 359. 
 CONTRACTIOlSr, 
 
 of name of corporation or firm; when may be used making assess- 
 ments. See Name of Owner, n. 4, 62. 
 CONTRACTS, NOTES AND BONDS, 
 
 treated as personal property. See Situs, 43. 
 CONVERTING MONEY AND PROPERTY INTO V. S. BONDS, 
 to evade taxation. 
 
 See Exemption feom Taxation, 172, 174. 
 CONSOLIDATION, 
 
 certificate of : consolidating two or more corporations : must be filed 
 before levy of assessment. 
 
 See Peivatb Cobpobation Assessments, 369. 
 COPARTNERSHIP, 
 
 assessment to firm name, n. 7, 60. 
 when copartnership contracts firm name, n. 2, 62. 
 joint assessment to joint owners, n. 4, 63. 
 cannot be made in severalty, n. 4, 63. 
 CORAM NON JUDICE, 
 
 reducing assessment when no list furnished. 
 
 See Boaed of Equalization, 159. 
 CORPORATIONS, 
 
 assessments by, defined, 1. 
 
 real property of: situs for assessment same as of natural persons, .30. 
 
572 INDEX. 
 
 C0KP0'RA.T10l!!S— continued. 
 
 personal property: same rule as to natural persons except as varied by 
 
 statute, 30. 
 in New Jersey where laud of, situated partly in two or more townships, 
 
 n. 1, 32. 
 shares in foreign, taxable irrespective of taxation where corporation 
 
 exists, n. 4, 46. 
 when treated as a resident for taxable pui-poses, 45. 
 assessable as to personalty at domicile, 47. 
 included by word "persons," n. 1, 417. 
 assessed, " where governing power is exercised," n. 2, 47. 
 facts necessary to determine, n. 3, 47. 
 domicile of, not controlled by residence of stockholders, 47. 
 
 only evidence tending to establish, 47, n. 2, 4. 
 foreign corporation: domicile where allowed to do business, n. 5, 47; 49. 
 when managing agent resides out of the state, 47. 
 principal office: not changeable by conducting operations at other 
 
 places, n. 1, 48. 
 changed only by authority of statute, n. 1, 48. 
 domicile of managing agent of, n. 2, 49. 
 
 property of: used while passing through state, when not taxable, 49. 
 statute : requiring persons, inhabitants and officers of corporations to 
 
 aid listing, construed, n. 1, 49. 
 personal property of, owned, used and situated in different counties, 
 
 n. 1, 49. 
 when foreign corporation comprehended within " persons and corpo- 
 rations," n. 3, 49. 
 where "transacting financial business," and " where operations carried 
 
 on," construed, n. 4, 49. 
 railroads: extending beyond the state, 50. 
 
 portion only within and ratable proportion of all rolling 
 stock, taxable, 50, n. 1. 
 same principle applies to telegraph lines, 50, n. 1. 
 two or more counties: property extending and used through, 50, n. 2. 
 cars freighted by owner: moved by railway corporations, 48, n. 2. 
 national banks: shares of, where taxable, 55. 
 
 limitation on taxation of shares of, 55. 
 not retroactive, 55, n. 3. 
 
 statutory provision necessary to authorize, 55, n. 6. 
 shares of resident and non-resident holders: taxable only at bank, 
 
 n. 5, 55. 
 using Pullman palace cars under agreement of purchase, n. 7, 55. 
 shares or stocks of: assessable at owner's domicile, unless otherwise 
 
 provided, 56. 
 same rale when a corporation a shareholder, 56, u. 3. 
 double taxation: assessment of "side track with railroad track," and 
 
 as real estate, n. 4, 56. 
 " side track," held properly assessed in Illinois, as real estate, n. 4, 56. 
 pledged and mortgaged stocks : taxable to pledgor or mortgagor, 56, u. 6. 
 exemption: when shares claimed to be exempt objector must show, 
 
 56, n. 7. 
 
INDEX. 573 
 
 CORPORATIONS— conifewefJ. 
 
 general rules: for assessment of shares of national banks, 57. 
 shares of foreign taxed: whether or not taxed at foreign domicile, 57. 
 same caution to prevent double taxation as in assessment of individ- 
 uals, 57. 
 franchise: may possess taxable value, 57. 
 
 made subject to taxation in some states, 57. 
 names of, compared to baptismal names of persons, 62. 
 usually constituted of several descriptive words, 62. 
 omission or transposition of a word may not affect name, 62. 
 certainty of name, not strictly applied, 62. 
 must be same in substance: need not be in syllables, 62, n. 1, 2. 
 capital stock, shares and property; generally valued as property of indi- 
 viduals, 131. 
 power creating : may prescribe mode and extent of taxation, 131. 
 provisions for, and exemption from; become a vested right, 131, n. 1. 
 additional and other taxation; when not prohibited, 131, n. 2. 
 specified tax prescribed in charter ; when in lieu of other taxes, 131, n. 3. 
 charters and general statutes; control assessments of, 131. 
 statements required from; serve as lists from individuals, 131, n. 4. 
 Kansas : value fixed by, changeable only on inquiry by commissioners. 
 
 n. 4, 131. 
 California: values fixed by corporations, not binding on assessing offi- 
 cers, n. 4, 131. 
 methods of valuation of coi-porations, 134. 
 property and franchise only assessed, 134, n. 1. 
 valuation of capital stock, shares and property. 
 
 See Valuation, 131. 
 statements required for assessment purposes, 131, n. 4. 
 when all property taxed: stock has no taxable value, 132. 
 capital stock and shares: or capital stock and property is double taxa- 
 tion, 132. 
 boreign, not included within doctrine, 132, n. 3. 
 
 special taxation of, exclusive of other taxation: when and how pre- 
 scribed, 132, n. 4. 
 may become a vested right, 132, n. 5. 
 shares in national banks taxable only as prescribed by congress, 
 
 11. 5, 132. 
 franchise: an item in addition to shares and property, 132, n. 2. 
 
 whether or not, included in taxation of all corporation prop- 
 erty, 133, n. 5. 
 California: held in the affirmative, n. 5, 133. 
 province of legislature to require taxation of; in addition to 
 
 property, 133, n. 6. 
 may be an ingredient of value of shares, n. 8, 133. 
 tangible property at cash value, and stock at market value is double 
 taxation, 133, n. 6; n. 6, 167; 
 taxing franchise in addition is not, 133, n. 6. 
 Tennessee: opposite view taken, n. 6, 133. 
 methods of valuation of, 134. 
 California: property and franchise only assessed, 134, n. 1. 
 
674 INDEX. 
 
 CORPORATIONS— continued. 
 
 Illinois : cash value of shares and market value of debt ; cash value 
 
 of property deducted, 134, n. 2. 
 statements must be signed and sworn to by designated officer, n. 1, 159. 
 entitled to relief against fraudulent valuations when no statement fur- 
 nished, 161. 
 operating railroads in two or more counties : assessed by board of equal- 
 ization, n. 1, 162. 
 statements fixing values; not controlling, n. 2, 162. 
 knowledge of values; how acquired by officers, 163, n. 1. 
 cannot arbitrarily fix values beyond actual value, 163, n. 2. 
 deductions must be allowed to, when to individuals. 
 
 See Equality and Unifokmity, n. 2, 168. 
 national bank shareholders : when must be allowed, n. 2, 168. 
 exemption of from taxation, violates uniformity and equality. 
 
 See Equality and Uniformity, 187, n. 2. 
 California: attempt to discriminate against, 188. 
 deductions : when denied to, 188. 
 
 Fourteenth Amendment protects against discriminations in deduc- 
 tions, 188, 189; 189, n. 1. 
 "person," includes corporations, 188, n. 1. 
 power of state to authorize formation of, for drainage purposes. 
 
 See Drainage Assessments, 330, n. 1. 
 may be a signer to petition for organization of swamp land district (in 
 California. ) 
 
 See Swamp Land Districts (in California), n. 1, 342. 
 COST AND EXPENSES, 
 
 of local improvements; cannot be apportioned regardless of benefits. 
 See Swamp Land Districts (in California), 353. 
 COUNTY BOARD OF SUPERVISORS, 
 
 may be empowered to order re-assessments. 
 
 See Re-assessments, n. 2, 197a. 
 CREDITS AND DEBTS, 
 
 when taxable, usually at residence of owner. 
 
 See Situs, n. 5, 39. 
 opposite view taken in New Jersey and Tennessee, u. 5, 39. 
 vendee: taxable with partial payments, 126, n. 6. 
 vendor: when sale absolute, for land and deferred payments, 126, n. 7. 
 CURATIVE ACTS. 
 
 See Defective Assessments and Curativk Acts. 
 re-assessments are similar to, but more comprehensive. 
 
 See Re-assbssments, 1976. 
 when cannot validate swamp land district assessments. 
 
 See Swamp Land District (in California), 353, n. 4. 
 
 D. 
 
 DAY IN COURT, 
 
 before sale of property, is due process of law. 
 
 See Due Process of Lam, 253, n. 1, 2. 
 when considered as liaving had. 
 
 See Swamp Land Districts (in California), 362, n. 1. 
 
INDEX. 575 
 
 DATS ■WORK (or bt Contract), 
 
 when discretionary: whom discretion exercised by. 
 See Strbbt Assessments, 296. 
 
 discretion cannot be delegated, 296, n. 1. 
 DEATH, 
 
 does not change situs of property. 
 
 See Situs, n. 5, 39. 
 DEBTS, 
 
 not secured by mortgage out of the state where taxable. 
 
 See Situs, 44. 
 when secured by mortgage out of the state, 44. 
 
 See also Choses in Action, 126. 
 DEBTS AND CREDITS, 
 
 when taxable, generally at residence of owner. 
 
 . See Situs, 39, 45; 46, n. 5;] 39. 
 opposite view taken in New Jersey and Tennessee, n. 5, 39. 
 DECEASED PERSON, 
 
 property of, where assessable during settlement of estate. 
 
 See Situs, 39. 
 when no liability is made by assessment to, n. 7, 60. 
 when assessment may be made to, 61, n. 2. 
 California: cannot be to, for street assessments. 
 
 See Street Assessments, 299, n. 1. 
 DECISIONS, 
 
 on questions of fact and law: in making, assessors act judicially, 20, 
 
 25, n. 1. 
 cited on complicated questions of domicile, n. 4, 35. 
 on taxation by state courts, recognized by U. S. courts, n. 6, 44. 
 of state courts on state taxation, control federal courts, n. 4, 61. 
 DEDUCTIONS, 
 
 of value of debt secured by mortgage. 
 
 See Situs, 44. 
 per ton of ore, for working expenses, 103, n. 1. 
 improperly allowed through error of law, n. 2, 168. 
 
 See Exemptions Defined, 172. 
 when allowed to any, must to all of class of property, n. 2, 186. 
 corporations allowed, on like terms as to individuals. 
 
 See Equality and Uniformity, n. 2, 186. 
 when must be allowed to national bank shareholders, n. 2, 186. 
 when denial to national bank shareholders valid, 186, n. 4. 
 when deductions allowable : must be claimed before assessment, 186, n. 4. 
 discriminations as to, repugnant to Fourteenth Amendment, 188. 
 DEED, 
 
 description good in : not sufficient in assessment. 
 See Real Estate, 80, n. 3a. 
 description in, cannot cure defective description in assessment, n. 3, 83. 
 DE FACTO (AND De Jure), 
 
 See Officer, 10, 11, 12, 13, 14. 
 DEFECT, 
 
 in principle of estimating values. 
 
 See Valuation, 138; see Error, n. 3, 138. 
 
576 INDEX. 
 
 DEFUCT,— continued. 
 
 in assessments affecting all property of town. 
 
 See Rb-asskssmknts, h. 4. 197. 
 
 when apparent: presumption not indulged. 
 
 See Presumptions and Estoppels, 207. 
 DEFECTIVE ASSESSMENTS AND CURATIVE ACTS, 
 
 power of legislature to cure defective assessments, 230. 
 
 where no jurisdiction existed, act cannot be cured, 230. 
 
 constitutional restrictions considered, n. 1, 2, 230. 
 
 description of real property fatally defective, n. 3, 230. 
 required in assessments and in deed, n. 3, 230. 
 
 California: unlimited power to cure held by majority opinion, n. 3, 230. 
 minority opinion; subsequently followed, n. 3, 230. 
 
 dollar mark nowhere appearing; defect incurable, n. 8, 230. 
 
 where part of jurisdictional acts performed not within time may be 
 cured, n. 5, 230. 
 
 test: power originally to authorize act, may be cured, n. 6, 230. 
 
 depriving a party of defenses; no objection to act, ii. 5, 230. 
 
 no vested rights in defenses based on informalities, n. 5, 230. 
 
 vested rights or equities: may not be devested, n. .5, 230. 
 
 jurisdiction acquired by acts imperfectly performed : cured without 
 further performance, n. 5, 230. 
 
 omissions and defects which may not be cured, 231. 
 
 when no jurisdiction over subject matter cannot be cured, n. 2, 231. 
 
 omission to perform jurisdictional act, n. 1, 231. 
 
 street assessment : property and improvements partly within and 
 partly without corporate limits, n. 7, 231. 
 
 omissions and defects which may be cured, defined, 232. 
 
 may reach what might have been authorized in advance, n. 2, 232. 
 
 jurisdiction having attached: other acts directory, 232. 
 
 tax deed: how far may be made conclusive evidence, n. 2, 2-32. 
 
 power to impose conditions; may dispense with performance, n. 2, 232. 
 
 omission or defect as to matters directory may be cured, n. 2, 232. 
 
 assessment made outside of county curable, 232. 
 
 contrary view expressed, n. 1, 231; n. 3, 2.32. 
 
 Pennsylvania: assessment of lands in another township held valid, 
 n. 3, 232. 
 
 acts done after time or not in mode provided, curable, n. 4, 232. 
 
 Iowa: assessments made before levy, cured, n. 5, 232. 
 
 illegal item : united with valid items ; cured by re-assessment, n. 6, 232. 
 
 omission to return description of land for a street assessment, 232. 
 
 may cure after suit brought and before judgment, 283. 
 
 held otherwise in California, ii. 1, 233. 
 
 " pending litigation," n. 1, 2.33. 
 
 "when judgment rendered," n. 2, 233. 
 
 after judgment rendered legislation cannot affect, nor pending appeal 
 n. 234. 
 
 prospective and retrospective : restrictions upon latter not always 
 applicable to former, 235. 
 
 law in force when sale made; applied, 235. 
 
 purchaser has vested interest in all provisions beneficial to himself, 23o. 
 
INDEX. 577 
 
 DEFECTIVE ASSESSMENTS AND CURATIVE ACTS,— continued. 
 application of curative acts to assessments, 236. 
 omissions: of acts to acquire jurisdiction cannot be cured, 236. 
 of acts required by statute, but not by constitutional requirement, 
 
 curable, 236. 
 also where acts not performed, might have been omitted from 
 
 statute, 236. 
 restricted to validating acts legislature might have authorized, 236. 
 no power to permit, no power to cure, 236, n. 1. 
 DEFENSES. 
 
 intentional omissions of taxable property constitute. 
 
 See Exemption, 168, n. 2. 
 by one not member of drainage corporation, unlimited. 
 
 See Drainage Assessments, 336. 
 pro tanto ; that assessment exceeds benefits, 336, n. 3. 
 in swamp land district assessments, unlimited. 
 
 See Swamp Land Districts (in California), 343, n. 2a. 
 except matters determined >ipon hearing petition, 343, n. 2a. 
 whether or not amount of benefits charged can be impeached ? n. 3, 
 
 343; 355, 357. 
 omissions in making swamp land district assessments. 
 
 See Swamp Land Districts (in California), 357. 
 tract not benefited by reclamation works: not error to exclude, n. 2, 357. 
 DE JURE AND DE FACTO. 
 
 See Officer, 10, 11, 12, 13, 14. 
 DELAY, 
 
 in claiming damages until after work completed; when no bar. 
 See Drainage Assessments, n. 2, 339. 
 DEPUTIES, 
 
 when appointment authorized, same rules apply as to assessors. 
 
 See Officer, 14. 
 How to sign and acknowledge deeds executed by, 14, n. 3. 
 DESCRIPTION, 
 
 must identify from other parcels. 
 
 See Real Property, 80. 
 owner's name; with quantity, not sufficient, 82, n. 6. 
 naming owners of adjoining lands without locality or other descriptive 
 
 matter, 82, n. 6. 
 independent, re(^uired when division after original entry, 83, n. 3. 
 to be read as a whole, 83. 
 
 in deed, cannot cure defective, in assessment, n. 3, 83. 
 a quantity within a block, not sufficient, 85. 
 must be complete within itself, 85, u. 1 ; 94. 
 Maine: in notice of sale: name of owner; number of acres; valuation 
 
 and amount of tax, u. 1, 85. 
 Illinois: description good, by which surveyor can identify with or 
 without extrinsic evidence, n. 1, 86. 
 uncertairi description; no defense to suit for tax, n. 1, 86. 
 New Jersey: description by quantity and location, n. 1, 86. 
 Indiana: - "the west part" of a quarter of a quarter stating quantity, 
 n. 2, 86. 
 
 37 
 
578 INDEX. 
 
 DESCEIPTION'.— continued. 
 
 surveyor; must be able to locate from, 87, n. 1. 
 
 when by boundaries must be complete within itself, 87. 
 
 insufficient when surveyor unable to locate from, n. 1, 87. 
 
 amending. 
 
 See Kbai, Pkopeett, 90; see Amending and Reviewing. 
 Assessments, 191. 
 
 building; more than one story high, owned in severalty, n. 2, 91. 
 
 in assessment roll headings double in meaning — aided by, 82, 93. 
 
 in appropriate columns, how considered when name of tract used as 
 heading, 93. 
 
 when allowable, diagram and description need not be on one paper, 94. 
 
 portion of larger tract: description must enable surveyor to identify, 
 n. 3, 94. 
 
 railroad: when metes, hounds, or other description sufficient for iden- 
 tification required, termini courses a?Kl distances sufficient, 95. 
 
 width: need not be given, 95, n. 1. 
 
 where possessoiy right only assessed, should show, 101; n. 2, 101. 
 
 langtiage used in, how construed, n. 1, 101. 
 
 under headings: how construed, n. 2, 101. 
 
 intention to be expressed in, 101. 
 
 where possessory right only assessed, should show, 101, n. 2. 
 
 of improvements: requirements found in revenue laws, 107. 
 
 when may be described and valued with land, n. 1, 107. 
 
 when owned by other than owner of land, 107, n. 2. 
 
 separate, and value of each class, 107, n. 3. 
 
 separate valuation of improvements, wlien, n. 3, 107. 
 
 personal property: each item with value not necessary, 120. 
 
 each class or species, with value, sufficient, 120, n. 1) 4. 
 
 " personal property," when sufficient, 120. n. 2. 
 
 " money and bonds deposited as per statute," n. 3, 120. 
 
 shares or stock in corporations how described, 120, n. 5. 
 
 " all personal property showing number, kind, amount and quality," 
 construed, n. 5, 120. 
 
 " 18 tons of hay, $540," held sufficient, n. 4, 120. 
 
 "money loaned": " mining stocks " : " 20 bank stock," n. 5, 120. 
 
 solvent debts: may be described as such, or as money loaned," n. 3, 126. 
 
 requirement of, in assessments and in deeds. 
 See Defective Assessments and Cueative Acts, n. 3, 230. 
 
 of work in street improvements: must be in positive terms. 
 See Stkeet Assessments, 279. 
 
 of work: in order, ordinance, or resolution. 
 
 See Street Assessments, 282. 
 
 must leave nothing open to oral proof, 283. 
 
 nor to superintendent of streets, 283. 
 
 " where necessary," indefinite, 283, n. 2, 3. 
 
 " where not already constructed and where necessary," 283, n. 4, 5. 
 
 must be as in ordinary taxation, 299. 
 
 error in, judgment voidable only by appeal, 299, n. 2. 
 
 commencement, course and terminus of ditch, to be given. 
 See Dkainage Assessments, 332, n. 2. 
 
INDEX. 579 
 
 DESCKIPTION.— coniJ?iue(Z. 
 
 certainty: must enable interested person to form opinion, 332, n. 6. 
 
 must state character of work, 332, n. V. 
 
 particular lands to be drained must appear, 332, n. 7. 
 
 sulficient when interested pei-son can form opinion therefrom, 332, n. 4. 
 
 "about," connected with words "limiting and restraining," n. 8, 332. 
 
 certainty to extent required in mortgage, sufficient, 335, n. 2; n. 2, 337. 
 
 insufficient; giving number of acres in a subdivision, n. 3, 335. 
 
 by metes and bounds when less than subdivision; or other definite 
 description, n. 3, 335. 
 
 of lands not injured nor benefited, not necessaiy, 336, n. 4. 
 
 in petition for organization of swamp land district (in California). 
 See Swamp Land Districts (in California), 341. 
 
 by legal subdivisions or other boundaries, 341, 
 
 unsold lands: quantity to be stated, 341, n. 1. 
 DETENTION IN TRANSIT, 
 
 property detained in transportation not taxable. 
 See Situs, 41, n. 5; App., 386, 
 
 travelling circus, when not taxable, n. 5, 41. 
 DIAGRAM, 
 
 when required may be referred to as part of description. 
 See Deschiption, 94. 
 DIRECTORY, 
 
 whether, or mandatory. See Maitdatoky and Dieectoky, 220. 
 DISCRETION, 
 
 must be exercised by body vested with. 
 
 See Street Assessments, 296. 
 
 cannot be delegated, 296, n. 1. 
 
 to make local improvement general or special tax, cannot be reviewed. 
 See Street Assessments, 308. 
 
 presumption: when discretion exercised, presumption of benefits, 
 309, n. 11. 
 
 same rule when exercised for any local improvement, 309, n. 2. 
 DISCRIMINATIONS, 
 
 between real and personal property : 
 
 resident and non-resident owners. 
 
 See Equality and Uniformity, 185, 186. 
 DEDUCTIONS, 
 
 allowed to any, and not to all, violates equality and uniformity, 187, n. 2. 
 
 against corporations violates Fourteenth Amendment, 188. 
 DISTRICT TO BE ASSESSED, 
 
 must be defined. 
 
 See Street Assessments, 297. 
 
 commissioners to fix boundaries must be disinterested, 297. 
 
 freeholder of district; disqualified, 297. 
 DIVISION OF COUNTY, 
 
 after property subject to assessment. See Situs, 33. 
 DIVISION OF TOWNSHIP, 
 
 placing irrigating ditch in new, after right of way proceedings com- 
 menced. See Abatement, 339. 
 
580 INDEX. 
 
 "DO.," 
 
 written under words and abbreviations. See Kea.1, Estate, n. 4, «" 
 
 DOGS, 
 
 exemption of property of corporation does not include, 173, n. 4. 
 
 DOLLAR MAKE, 
 
 not appearing in transcript, presumption. 
 
 See Pbesumptions and Estoppels, 205, n. 3. 
 necessary to make figures represent money. 
 
 See Mandatory and Directoky, 225. 
 headings of columns may be referred to for, 225. 
 not appearing anywhere, figures void for uncertainty, n. 1, 225. 
 at head of column: figures represent money, u. 2, 225. 
 footings; with dollar marks; effect of, n. 4, 225. 
 " dolls." an abbreviation of dollars, n. 1, 225. 
 nowhere appearing, defect incurable by after-legislation. 
 See Defective Assessments and Curative Acts, n. 3, 230. 
 DOMICILE, 
 
 erroneous decision as to, assessor liable. 
 
 See Assessor, 22. 
 must be in district at close of assessment's, n. 1, 22. 
 which is, when tax-payer has two residences, 23. 
 New York: statutory rule in such cases, 23, n. 3. 
 erroneous decision by assessor, makes liim liable, n. 1, 23. 
 presumption : that personal properly follows, 34. 
 of two residences which is, a question of fact, 23, 35. 
 change of: when assessment perfected before, 35, n. 2. 
 Inhabitant and domicile, distinction between, 36. 
 these words defined, 36, n. 1, 2, 3, 4, 5, 6, 7, 8. 
 
 where two residences: legislature may control place of taxation, 37. 
 taxable residence where liable to jury duty: where homo is, n. 2, 37. 
 changing: must lose old before acquiring new, 38. 
 new, dates only from bodily presence, 38. 
 exception : married women and infants, 38. 
 infants and minors, domicile of, 38. 
 
 when under guardianship, 38. 
 of married women, same as husband, 38. 
 change of, must be voluntary, 38, n. 8. 
 jail: when regarded as, ii. 8, 38. 
 
 administrators and executors: taxable at, of intestate and testator, 39. 
 during settlement of estate, same as if deceased living, 39, n. 2. 
 personal property, when not otherwise provided, taxable at domicile, 
 
 n. 5, 39. 
 debts and credits: generally assessable at, n. 5, 39. 
 corporation : to be assessed at, for personalty, 47. 
 DOUBLE TAXATION, 
 
 assessment where not taxable: no bar, where liability exists, 34, n. 3. 
 debt secured by mortgage, taxed without the state, also within the 
 
 state, 44. 
 in wrong county and in proper county, n. 3, 45. 
 
 assessment of side track with "railroad track" and as real estate, 
 n. 4, 56. 
 
INDEX. 681 
 
 DOUBLE T AX ATIOT<(.— continued. 
 
 assessing corporations, same caution to prevent, as wlien natural per- 
 sons, 57. 
 
 ■valuing land and improvements separately; does not show, n. 4, 106. 
 
 land sold, to vendor and also unpaid purchase money, 126, u. 7. 
 
 choses in action when taxed, liability to, n. 7, 126. 
 
 capital stock and shares : or of stock and property of corporations, 132. 
 
 doctrine of, does not apply to shares in foreign corporation, 132, n. 3. 
 
 property at cash value and shares at market value is, 133, n. 6. 
 
 Tennessee: opposite view taken, n. 6, 133. 
 
 taxing property, stock and franchise, 133, n. 8. 
 DOUBTS, 
 
 when name of owner doubtful, safe course. 
 
 See NAjfE OF Owner, 72, n. 1. 
 
 assessor not required to determine ownership, 72, n. 2. 
 
 having doubts, may assess to unknown, 72, ii. 2. 
 DRAINS, 
 
 right to construct. See Dbain age Assessments, 836. 
 
 drainage of low lands are pviblic improvements, 330. 
 
 power to authorize formation of corporations to construct, 330, n. 1. 
 
 single owner: right to construct over lands of others, 330, n. 4. 
 
 delegated powers to construct: to be exercised within limitations in 
 statute, 331. 
 
 drainage: effected generally through corporations and county govern- 
 ment, 332. 
 
 right of way for: how acquired, 339. 
 DRAINAGE ASSESSMENTS, 
 
 validity of organization of corporation or swamp land district, affects 
 assessment, 332. 
 
 Indiana: corporations maybe organized: for "draining, reclaiming 
 and protecting," .332. 
 
 powers of, expressed, 3:?2. 
 
 description: commencement, course and terminus of ditch; to be 
 stated, 332, n. 2. 
 
 petition: when initial proceeding, same rule, n. 2, 332. 
 
 certainty: must be such as to enable interested persons to form opin- 
 ion, 332, n. 6, 9. 
 
 must also state character of work, 3.32, n. 7. 
 
 manner of accomplishing drainage to be stated, 332, u. T. 
 
 particular lauds to be drained must appear, 332, n. 7. 
 
 jurisdiction: when corporation obtains, 333. 
 
 conditions precedent: filing articles of incorporation are, 333. 
 
 must be recorded before assessment is made, 333, n. 1. 
 
 conditions precedent to prosecution of work, 334. 
 
 benefits must exceed damage and cost, 334, n. 2. 
 
 right of way in Indiana, not a condition precedent, .3.34, n. 3, 5. 
 
 Michigan: opposite ruling prevails, 334, n. 6. 
 
 California: same ruling as iii Michigan, 334, n. 7. 
 
 same rule stated in Cooley on Taxation, 334, n. 8. 
 
 re-assessments or additional assessments may be made when necessary^ 
 331, n. 4. 
 
582 INDEX. 
 
 ]}IIAINAGE ASSESSMENTS.— continued. 
 
 consist of benefits and damages, 334. 
 
 completion of ditch : not condition precedent to levy of assessment, 
 334, n. 5. 
 
 lien : attaches on filing schedule of, 335. 
 
 time when schedule filed not material, 335. 
 
 appeal : must be taken within thirty days after posting notice of filing 
 schedule, 335. 
 
 Hen: attaches when schedule filed, 335. 
 
 description : of land assessed; certain as required in mortgage, 335, n. 2. 
 certainty required to make lien notice, 335, n. 2. 
 
 insufScient description: merely giving number of acres in a subdivi- 
 sion, II. 3, 335. 
 
 when less than legal subdivision : by metes and bounds or other defi- 
 nite description, n, 3, 335. 
 
 defenses unlimited: by one not member of corporation, 336. 
 
 pro tanto defense to: that assessments exceed benefits, 336, n. 3. 
 
 desciiption not necessary of lands not Injured nor benefited, 336, n. 4. 
 
 irregularities after jurisdiction acquired : will not defeat, u. 2, 336. 
 
 presumption favors legality and regularity of proceedings, n. 2. 336. 
 
 Michigan: keeping fund of drainage taxes, n. 2, 336. 
 
 Indiana: judicial notice taken of articles of incorporation, 33T. 
 
 benefited: how much, if any; issue may be raised, 337. 
 
 land benefited; if less than all, must be described in special verdict, 
 337, n. 1. 
 
 lien: attaches only to land described, 337, n. 1. 
 
 facts not necessary to allege in complaint to enforce assessments, 
 337, 11. 2. 
 
 facts necessary to be alleged, n. 2, 337. 
 
 trial by jury: right to, does not attach to suits to enforce, 338, n. 1. 
 
 Indiana: damages for right of way; included in assessment for dama- 
 ages and benefits, 339. 
 
 uniformity: same rules, so far as applicable, as in general and special 
 taxation, 340. 
 
 authorized only by reason of public necessity and benefit, 340. 
 
 all lands benefited must be included, 340. 
 
 appraiser's schedule must show this fact, .340, n. 2. 
 DUE PROCESS OF LAW, 
 
 applied to taxation. 
 
 See Board of Equalization, 154, n. 1. 
 
 provision must be made for hearing. 154a. 
 
 Eourteenth Amendment: requires, in tax proceedings, 154a. 
 
 means reasonable opportunity to be heard as to listing and valuation, 
 n. 2, 154a ; n. 3, 343. 
 
 synonymous with "law of the land," 250. 
 
 defined, 250, 251 ; n. 3, 343. 
 
 property of private owner: can be taken only by, 250. 
 
 compensation must be made, when for public uses, 250. 
 can be taken in no case for private uses, n. 4, 250. 
 
 under statutory authority, may be taken without suit, for delinquent 
 tax, 250; n. 2, 351. 
 
INDEX. 583 
 
 DUE PEOCESS OF Ij AW. —continued. 
 
 contrary view expressed by an author on Tax Titles, n. 5, 250. 
 
 act, providing for levy, assessment and collection of tax is, 250, n. 7. 251 
 
 when retroactive legislation is, 250, n. 8. 
 
 sale for taxes without judicial proceedings, 251. 
 
 delinquent, property of only, liable to seizure, 251, n. 1. 
 
 in possession of delinquent, not liable, n. u, 251. 
 Michigan : statute authorizing sale of all property found in possessioa 
 
 of delinquents, held valid, 251, n. 2, 3. 
 day in court: before sale of property, 253, n. 1, 2. 
 proceedings under swamp land districts (in California) is. 
 See Swamp Land Districts, 344, n. 3; 350, n. 1; 351, n. 2. 
 DRY LAJSTDS, 
 
 whether or not, no defense to swamp land assessment. 
 
 See Swamp Land District (in California), 355. 
 
 E. 
 " EAST END OF," 
 
 in Illinois, held sufficient description of fractional parts of blocks. 
 See Keal Estate, 82, n. 5. 
 EMINENT DOMAIN. 
 
 police and sanitary control: each sufficient to authorize drainage. 
 
 See Drainage Assessments, 330. 
 right of way for, acquired through, 339. 
 taxation and, distinction between. 
 
 See Swamp Land Districts (in California), n. 2, 350. 
 ENGINEER, 
 
 trustees of swamp land district: authorized to appoint. 
 
 See Swamp Land Districts (in California), 347. 
 ENGINEERING, 
 
 also abstracts of title and advertising: items of expense of local im- 
 provements. 
 
 See Street Assessments, 302, n. 1. 
 ENROLLMENT, 
 
 of vessels : does not supplant registry. 
 
 See Situs, 42, n. 4. 
 EQUALITY AND UNIFORMITY, 
 
 can only be reached through assessments. 
 
 See Assessments, 3. 
 taxation must be according to. 
 
 See Valuation, 130. 
 defined as applied to taxation, 185, n. 3. 
 what is sufficient, 185, n. 1. 
 ' perfect equality : not attainable, n. 1, 185. 
 doctrine of, must be applied to assessments, 185, n. 2. 
 "equal" and "uniform" have same meaning, 185. 
 mode of valuation and rate must be the same, 185, n. 3. 
 local assessments: equal when burden divided according to benefits, 
 
 n. 3, 185. 
 uniformity, when presumed, 185, n. 4. 
 situs does not involve, n. 4, 185. 
 
584 INDEX. 
 
 EQUALITY AND UNIFORMITY.— continued. 
 
 valuations: uniformity in mode of making, necessary to equality, 
 186, n. 1. 
 iinequilly made, produces inequality, 186, n. 2. 
 rate: uniformity of, not sufficient: must include valuations and de- 
 ductions, n. 2, 186. 
 when denial of deductions to national bank shareholders valid', 186, n. 4. 
 mere unequal valuation ; not sufficient to defeat assessment, 186, n. 5. 
 intention to assess unequally must exist, 186, n. 5. 
 value on a fixed day for personalty, not applied to realty, n. 5, 186. 
 rule of valuation : must apply to all property and persons alike, 186, n. 6. 
 applying different rule as to money, n. 6, 186. 
 valuation of mortgages at face of debt ; real property at one third of 
 
 value, n. 6, 186. 
 equality between counties; between persons and corporations, 187, n. 1. 
 exemption of corporations from taxation: of classes of persons by 
 reason of age or sex: discriminations of property: violate, 187, n. 2. 
 in levying licenses, 387, n. .3. 
 
 Califoi'nia : attempt to levy monthly license tax on Mongolians, n. 3, 187. 
 attempt in California to discriminate between corporations and natural 
 
 persons, 188. 
 in taxation: may be enforced under Fourteenth Amendment, 189. 
 constitution or statute: more favorable to one class than to another — 
 
 invalid, 189, n. 1. 
 unequal exactions in any form violate, 189, n. 1. 
 omissions and inequalities from oversight or inefficiency, 190, n. 1. 
 intentional omissions and wilful and intentional discrimination violate, 
 
 190, n. 2. 
 apply in street assessments. 
 
 See Street Assessments, 207, 291a. 
 apply in drainage assessments. 
 
 See Dbainage Assessments, 340. 
 See Swamp Land Distmots (In California), 348, 350. 
 EQUITY, 
 
 he who seeks : must do. 
 
 See Name of Ownek, n. 2, 64 ; n. 3, 73. 
 unequal taxation: seeking relief from, must ofPbr to pay just propor- 
 tion. 
 
 See Equality and Unifoemity, n. 6, 186. 
 
 EQUALIZATION, 
 
 of assessments, to equalize burdens of taxation. 
 
 See Board of Equalization, 151-163. 
 of street assessments. 
 
 See Board of Equalization, n. 1, 151. 
 when provided for; exclusive remedy for grievances, 312, n. 1. 
 when not provided for; courts grant relief, 312. 
 objections to work: when provided for, exclusive remedy except for 
 
 fraud, 313, n. 3. 
 if no provision for ; taxpayer loses no rights. 
 
 See Street Assessments, 322. 
 can make same objections as defense to assessment, n. 3, 322. 
 
INDEX. 585 
 
 EQUITABLE RULE, 
 
 for situs for taxable purposes of all personal property. 
 See Situs, 52. 
 EEROK, 
 
 in determining jurisdictional questions, 20. 
 
 of judgment.not involving jurisdictional questions,assessor not liable,20. 
 in favor of jurisdiction — renders assessor liable, 21, n. 3; 23. 
 same rule on questions both of law and fact, 22. 
 mistakes and omissions as to names, may be provided against, 61, n. 1. 
 in principle of valuation; not reviewable, 138. 
 nor, in judgment, 1.38, n. 1, 2, 
 when acting in good faith, n. 3, 138. 
 
 New York; excessive valuation erroneously made in street assess- 
 ments, 138, n. 5, 6, 7. 
 EEKOES AND IRREGULARITIES, 
 
 in assessments : not of equitable cognizance. 
 
 See Street Assessments, 315. 
 exceptions, 315, 317. 
 ESTOPPEL, 
 
 executor: member of board of review: not, to legatee or heir. 
 
 See Name of Owner, n. 4, 67. 
 furnishing defective description : not. 
 
 See Real Estate, 84, n. 1. _ 
 
 contrary view expressed in California, n. 2, 84. 
 by claimant of land grant furnishing survey and plat, n. 3, 84. 
 where only individual liability involved; quere ? 84, n. 2. 
 description of choses in action : furnished in list by tax-payer. 
 See Desceiption of Peksonal Pbopebty, 126, n. 4. 
 by re-assessment and re-apportionment made at party's request. 
 
 See Re-assessments, n. 3, 197; 199, n. 1. 
 by judgment for delinquent tax: as to assessment and delinquency, 
 
 209, n. 1. 
 by failure to object : as to local assessments, 210. 
 inducing contractor to complete contract. 
 
 See Street Assessments, 318. 
 by accepting a benefit after assessment, 318. 
 by voting for assessment as member of a board, 318, n. la. 
 not, in Maryland and New York, n. 2, 318. 
 Iowa: opposite view taken, n. 2, 318. 
 Pennsylvania : same ruling as in Iowa, n. 2, 318. 
 general rule of: "conduct intended to induce another to act," &c., 
 
 n. 2, 318. 
 against objecting that ditch not regularly laid out, when. 
 
 See Drainage Assessments, n. 2, 389, 
 by agreeing to construct part: when benefited by construction of part, 
 
 n. 2, 339. 
 by matters required to be and stated in petition as to all lands Included. 
 
 See Swamp Land Districts (in California), 362. 
 also as to persons not signing petition, 362. 
 EVIDENCE, 
 
 board of equalization : not bound by. 
 
 See Board of Equalization, 163. 
 
586 INDEX. 
 
 EVIDENCE.— continued. 
 
 Arkansas: statute making tax deed conclusive, restricted to prima 
 
 facie only, n. 7, 251. 
 city tax delinquent list n^ade evidence: no proof of acts prior to 
 assessment. 
 
 See Street Assessments, n. 6, 279. 
 EXCEPTING PART, 
 
 that not excepted and that excepted; both must be specifically de- 
 scribed. 
 
 See Description: Keai. PiiOPERTy, 81, n. 1; 83. 
 EXCEPTING WOKK ALEEADY DONE, 
 in general terms. 
 
 See Street Assessments, 301, n. 1, 
 EXCEPTIONS, 
 
 personal property of corporations, . not always assessed as that of 
 natural persons. 
 
 See Situs, 30. 
 to rule that personalty must be assessed to owner at domicile. 
 
 See Situs, 30. 
 property transiently within jurisdictional limits not assessable, even 
 
 though owner domiciled, 34. 
 property within swamp land district; not benefited by reclamation 
 works. 
 
 See Swamp Land Districts (in California), n. 2, 357. 
 EXCESSIVE VALUATIONS, 
 
 free from fraud not relieved against by courts. 
 
 See Valuation, 133, n. 1, 2. 
 when relieved against, 137, n. 2. 
 New Tork: statute regulating, as to street work, 138. 
 EXECUTOR, 
 
 taxable at domicile of testator, 39. 
 
 See Administrator and Executor, 39. 
 Tennessee: at domicile of administrator or executor, n. 5, 45. 
 taxable for estate lield for life of beneficiary, n. 1, 67. 
 
 for estate held previous to distribution, 67, n. 4. 
 EXEMPTION FROM TAXATION, 
 
 erroneously refusing to allow, assessor not liable. 
 
 See Assessor, 20, n. 4. 
 when not subject to taxation, assessor not liable. 
 ' See Assessor, 21, n. 1. 
 
 property taxed same year in another state, not exempt. 
 
 See Situs, 46, n. 1. 
 shares of stock of foreign corporation taxed to corporation, not ex- 
 empted, n. 1, 46. 
 lower story of building used for secular, upper for religious purposes. 
 
 See Real Estate, n. 2, 91; 92. 
 character of property exempted, 165. 
 not to he included in assessments, 165. 
 building: erected on leased school lot, n. 1, 165. 
 impolitic: to tax government property, 166. 
 matter of public policy to exempt property, 166. 
 
IXDKX. 587 
 
 EXEMPTIOJf FKOil TAXA.TIO'S.— continued. 
 public lands: exempted while unsold, 166. 
 power of legislature to exempt, 167. 
 when no power to exempt, n. 1, 167. 
 
 Fourteenth Amendment: prohibits exemption of property used for 
 private purposes, 167, n. 5. 
 can exempt only wherein all are equally benefited under, n. 5, 167. 
 Indiana, charitable purposes: exemption of ^500 to widows and unmar- 
 
 riied females noi, included, n. 5, 167. 
 state may make valid contract with corporation to exempt, n. 4, 167. 
 under Fourteenth Amendment, query ? n. 4, 167. 
 intentional exemptions and deductions through error of law, 168, n. 2. 
 exemption laws : strictly construed, 169. 
 public property exemption : includes only that used for governmental 
 
 purposes, 169, n. 1. 
 shares held by state in railroad company not included, 169," n. 1. 
 property in which school funds invested, 169, n. 2. 
 
 of railroad: will not include a steamboat, 169, n. 3. 
 includes " rolling stock" used operating road, 169, n, 4. 
 building: erected on leased exempt ground for purposes not exempt, 
 
 169, n. 5. 
 lodging houses : of religious and charitable corporations, letting rooms 
 
 for hire, 169, n. 6. 
 leased ground : used by religious and charitable corporations not ex- 
 empt, 169, n. 7. 
 not where lessee covenants to pay tax, 169, n. 7. 
 repeal of, when, no part of charter, 169, n. 8. 
 irrepealable: when in charter, 169, n. 9; 176, n. 4. 
 
 even by constitutional convention, 169, n. 9. 
 subsequent legislation: when impotent to annul exemption, 169, n. 10. 
 immunity from repeal : cannot be granted where right reserved in 
 
 constitution, 169, n, 11. 
 assessments: exemption from taxation does not include, 169, n. 12. 
 intention to exempt: must clearly appear, 169, n. 13. 
 
 from " all public taxes, rates and assessments," construed, 
 
 n. 14, 169. 
 shares, does not include, of foreign corporations, 169, n. 15. 
 after completion of road; time during construction not in- 
 cluded, 169, n. 16. 
 must be confined to property described, 169, n. 17. 
 church, does not include parsonage, n. 17, 169. 
 "meeting house" while in course of erection, 169, n. 18. 
 growing crops: fruit, nut-bearing, and ornamental trees, vines not nat- 
 ural growth, not included, 169, n. 19. 
 public property: liable for local assessments, 170, n. a. 
 
 not a fixed liability, power to exempt from, 170, n. a. 
 power: which exempts fi-om general, may exempt from special taxa- 
 tion, n. a, 170. 
 power granted to exempt specified property, inhibits exemption of any 
 other, 170, n. 2; 172, n. 1. 
 
588 INDEX. 
 
 EXEMPTIOX FROM TAXATIOX.— con«ifiue(J. 
 
 of charitable and religious institutions does not, from local assess- 
 ments, 170, n. 3. 
 unless language inchuie such assessments, 170, n. 4. 
 value immaterial in determination of question of, 171. 
 U. S. bonds, not their value exempt, 171, n. 1. 
 
 value of, above par value not taxable, n. 2, 171. 
 deductions work an exemption to amount allowed, 172. 
 exemption in favor of seven years' service in militia, repealable, 172, 
 
 n.2. 
 converting into exempt property to evade taxation, 172, n. 4. 
 when may not be done, 172, n. 2. 
 when may, 174, n. 3. 
 land grants to railroad corporations while unpatented and cost of sur- 
 vey unpaid, 173. 
 when patent issued or grantee entitled thereto, 173. 
 mortgage by grantee works no change, 173, n. 1. 
 contract of sale to convey as fast as title acquired, 173, n. 2. 
 right of way: when included in, 17.3a, n. 1. 
 retroactive laws: doctrine of, apply to, 176, n. 5. 
 " property of the company and shares therein," n. 1, 173a. 
 franchise: property of corporation includes, n. 1, 173a. 
 U. S. bonds and treasury notes, 174. 
 sliares in national banks may be taxed, 174, n. 1. 
 a personal privilege, 175. 
 
 does not adhere to property after sale, 175, n. 2. 
 unless expressly so provided, 175, n. 2. 
 duration of, may be made perpetual, 175, n. 3. 
 general exemption laws may be repealed, 176, n. 1, 2. 
 irrepealable when part of charter or contract, 176, n. 3, 4. 
 nude pacts : when no consideration for, 176, n. 6. 
 property of municipal corporation situated wittin anotlier mnnicipal 
 
 corporation, 177, n. 1. 
 ■where only in part used for exempted purposes, 178, n. 1, 2, 3. 
 "Where part used for orchard and vegetable cultivation, n. 4, 178. 
 beginning and ending of, 179, n. 1. 
 
 omission by legislature to include any class of property not, 180. 
 property so omitted may be included at any time, n. 1, 180. 
 of corporations: violates equality and uniformity of taxation. 
 
 See Equality and Uniformity, 187, n. 2. 
 no lands in swamp land district can be exempted. 
 
 See Swamp Land Districts (in California), 357, n. 2. 
 EXHIBITS, 
 
 to petition for swamp land district (in California) may be annexed as 
 part. 
 
 See Swamp Land Districts (in California), n. 1, 342. 
 See Diagram, 94. 
 EXPENSES, 
 
 costs and, cannot be apportioned regardless of benefits (in swamp land 
 districts in California), 353. 
 
INDEX. 589 
 
 ^XVENSES.— continued. 
 
 incurred prior to organization: cannot be included in assessment, 353. 
 not even by authority of legislative act, 353. 
 EXPERTS, 
 
 surveyors and, 
 
 See SmBVEYOES and Experts, n. 1, 86. 
 EX POST FACTO LAW, 
 
 relates to criminal, not civil proceedings. 
 See Defectivb Assessments and Cueative Acts, n. 5, 322. 
 EXTENSION OF TIME, 
 
 for completion of contracts. 
 
 See Steeet Assessments, 294. 
 
 F. 
 FACTS, 
 
 to be established : when jurisdiction attacked. 
 
 See JiTKisDiCTioN, 279, n. 1. 
 how prima facie case for jurisdiction made, 280. 
 FAILURE, 
 
 to furnish tax list. 
 
 See Boaed of Equalization, 159. 
 FALSE CALL, 
 
 in description if misleading. 
 
 See Keal Estate, 82, n. 2. 
 when added to true description, 89, n. 1. 
 test, as to «ffect of, n. 1, 89. 
 FERRT BOATS, 
 
 taxable where owner resides. See Situs, n. 3, 42. 
 FIDUCIARY CHARACTER, 
 
 in California: to be added to name. 
 
 See Name of Ownee, 66, n. 2. 
 when not expressed in conveyance, to whom assessed, •67, n. 1. 
 when held by executors for beneficiary for life, n. 1, 67. 
 constructive notice of: assessor not chargeable with, 67, n. 2. 
 where title in beneficiary, 67. 
 when held by guardian for ward, 67, n. 2. 
 FIXING PRICES, 
 in notice to bidders. 
 
 See Steeet Assessments, n. 1, 296. 
 FIXING VALUES, 
 
 by location : regardless of actual value. 
 
 See Valuation, n. 5, 136. 
 FOOT, 
 
 acre or other subdivision: assessment by. 
 
 See Steeet Assessment, .007, 223. 
 FOOTINGS, 
 
 representing dollars and cents: effect of, on entire assessment. 
 See Mandatoey and Dikectory, n. 4, 225. 
 FOREIGN CORPORATIONS, 
 
 See Cokporations, 45, 46. 
 for taxable purposes, domicile where allowed to do business, 47, n. 9. 
 
590 INDEX. 
 
 FOREIGN COKPOKATION^S.— cojitinued. 
 
 determinable where, as in agents of non-resident owners, 47, n. 6. 
 
 when managing agent resides out of the state, 47. 
 
 "persons" and "inhabitants" includes, 47, n. 1. 
 
 property of; used while passing through state when not taxable, 49. 
 
 if so used when having an agent, 49, n. 5. 
 statute construed requiring persons and officers of corporations to aid 
 
 in listing, n. 1, 49. 
 taxation of, not always applicable to domestic, 132, n. 3. 
 shares of, taxable when shares of domestic exempt, n. 3, 132. 
 shares of, not exempt when shares of domestic are, 169, n. 15. 
 FORM, 
 
 of assessment usually prescribed by statute, 8. 
 must be, at least substantially complied with, 8. 
 See Assessment Roll, 6. 
 See Assessments, 8. 
 may be adapted to meet statutory requirements, 9. 
 
 See Mandatory, 6. 
 determinable from statutory provisions, 101, n. 3. 
 where real estate and possessory rights are assessed, n. 3, 101. 
 for assessments : mandatory. 
 See PossESSOET Rights to Public Lands, 101, 106, 113, 220, 
 n. 5; 223, n. 1. 
 California: statutory form of notice of assessments by private cor- 
 porations. 
 
 See Pkivatb Corporation Assessments, n. 1, 370. 
 of delinquency and sale of shares, ii. 2, 370. 
 FORM OF ASSESSMENT, 
 
 determined by statutory provisions. 
 
 See Possessory Rights to Real Property, 101, n. 3. 
 where fee simple and possessory rights are assessed, n. 3, 101. 
 mandatory where tending to protect taxpayers, 101, n. 4. 
 FORM OF ASSESSMENT ROLL, 
 
 must be observed at least substantially. 
 
 See Assessments, 7, 8. 
 dollar mark: to valuations required, n. 225. 
 FOURTEENTH AMENDMENT, 
 provisions of: applied to taxation. 
 
 See Board op Equalization, 154a, n. 1. 
 See Due Process of Law, n. 3, 252. 
 protection against discriminations in deductions allowed in assessments. 
 
 See Equality and Uniformity, 188. 
 equality in taxation may be enforced under, 189. 
 FRACTIONAL UNDIVIDED PART, 
 
 value of undivided known quantity within known bovindaries after 
 other known quantity located : how ascertained. 
 See Valuation, 139, n. 2. 
 FRANCHISE, 
 
 not taxable unless made so by organic or stationary law. 
 
 See Personal Property, 125. 
 not included under the word " property," 125, n. 2. 
 
INDEX. 591 
 
 FRAXCHISE. 
 
 whether to be assessed separately, or included with other property, 
 
 125, n. 3. 
 value, determinable by assessor, n. 3, 125. 
 
 valued at difference between stock and property value, n. 3, 125. 
 an item, in addition to property and shares, 1.32, n. 2. 
 assessment of, when not double taxation, 133, n. 6. 
 how value ascertained, 133, n. 7. 
 may be ingredient of value of shares, n. 8, 133. 
 defined, n. 1, 133; n. 3, 176. 
 
 included when property of corporation exempted, n. 3, 173. 
 •FRAUDULENT BIDDING, 
 
 fixing entire cost on part of items: balance gratis. 
 See Street Assessments, 291a. 
 FRAUD AND FRAUDULENT, 
 
 fixing valuations to compel payment of more than proportionate share. 
 
 See Vai.uation, 137, n. 2. 
 fraudulent valuation relieved against; although hearing denied before 
 board of equalization. 
 
 See BoAKD of EQUArAZATiON, 161. 
 secret agreement between contractor and part of land owners. 
 
 See Street Assessments, 292, n. 2. 
 assessment impeachable in collateral action. 
 
 See Swamp Land Districts (in California), 355. 
 FREE TURNPIKE ROAD ASSESSMENTS, 
 benefits supposed suflcicient compensation, 323. 
 regardless of benefits, held illegal as to farm lands, n. 1, 323. 
 actual expense of: how apportioned, n. 1, 323. 
 FRONTAGE, 
 
 confined to depth of lots. 
 
 See Street Assessments, 303. 
 assessments on : without regard to benefits, 309, n. 3. 
 New Jersey: presumption of benefits to extent of cost, when not in- 
 dulged, n. 4. 4; 309. 
 FULL CASH VALUE, 
 
 and " cash value," synonymous terms. 
 
 See VALrATioN, 136. 
 "cash value," and "actual value," 135. 
 
 G. 
 
 GOOD FAITH, 
 
 when does not exonerate assessor from liability. 
 See Assessor, 21. 
 GRIEVANCES, 
 
 when provision made for bearing: exclusive remedy. 
 See Street Assessments, 312, n. 1. 
 GROWING CROPS, 
 
 cultivated fruit, nut-bearing, ornamental trees, also vines not included. 
 See Exemption from Taxation, 169, n. 19. 
 GUARDIANS, 
 
 not assessable for ward's property. See Name of Owner, n. 2, 67. 
 
592 INDEX. 
 
 GUTTER, 
 
 when necessary part of construction of sidewalk, 
 
 See Stbe1)t Assessments, n. 1, 285. 
 
 H. 
 
 HALF VALUE OF PEOPERTl , 
 limit of amount of assessmeat. 
 
 See Stkeet Assessments (New York), 303. 
 limitation applies to each improvement, 308. 
 burden of proof: to show less than half, 303, n. 2. 
 valuation applies to each lot separately; although same owner, 303, n. 3. 
 when block never valued as separate lots, 303, n. 3. 
 valuation in 1840 for assessment of 1875 sustained, n. 2, 203. 
 HEADINGS, 
 
 In assessment roll; when double in meaning, 82, n. 3. 
 
 description under, in appropriate columns, how considered, 93; 
 
 n. 2, 101. 
 separate, of columns when required, mandatory. 
 
 See Mandatoby and Directory, 223. 
 of columns: may be referred to for dollar mark. 
 
 See Mandatoby and Directory, 225. 
 HEARING (AND NOTICE), 
 
 provision for, and for correction of errors. 
 
 See Due Process of Law, n. 8, 250. 
 HEIRS AND DEVISEES, 
 
 assessment to, in name of deceased, n. 2, 61. 
 HEIK AND LEGATEE, 
 
 when taxable: situs, their own residence, 39. 
 HISTORY, 
 
 courts will take judicial notice of. 
 
 See Possessory Rights to Public Lakdb, n. 1, 101. 
 HOME. See Situs, n. 2, 37. 
 HOMESTEAD AND PRE-EMPTION RIGHTS, 
 not taxable. 
 
 See Possessory Rights to Public Laijds, 100, a. 4. 
 HUSBAND, 
 
 land of wife : not assessable to. 
 
 See Name op Owner, 60, n. 8. 
 not when living with wife on land, 63. 
 when assessable to owner or occupant, 63, n. 3. 
 
 I. 
 
 IDENTITY, 
 
 when presumed. 
 
 See Name of Owwbr, 60, n. 3. 
 ILLEGAL ITEM, 
 
 in levy will be relieved against. 
 
 See Valuation, n. 3, 137. 
 united with valid items : curable by re-assessment. 
 See Defective Assessments and Curative Acts, 232, n. 6. 
 
INDEX. 593 
 
 ILLEGAL TAX, 
 
 when no objection to re-assessraent. 
 
 See Ee-asskssments, 1976, n. 1, 
 ILLIlSrOIS, 
 
 "east end of blocks 99 and 100," held sufficient description, 82, n. 5. 
 
 when description sufficient, n. 1, 86. 
 
 when uncertain description, no defense, n. 1, 86. 
 
 joint assessment of separate tracts invalid. 
 
 See Sep ABATE Parcels, n. 4, 111. 
 corporations: mode of valuation, 134, n. 2; 142, n. 3. 
 appeal from board of equalization provided for, n. 158. 
 assessment liability : property charge only under charter of Aurora. 
 See Stkeet Assessments, 310, n. 8. 
 IMMUlSriTY FROM REPEAL, 
 
 See Exemption fbom Taxation, 169, n. 9, 10. 
 when right to repeal reserved in constitution, legislature cannot grant, 
 
 169, n. 11. 
 immunity from taxation, a personal privilege. 
 
 See Exemption fbom Taxation, 175. 
 does not adhere to property after sale, 175, n. 2. 
 unless so expressly provided, 175, n. 2. 
 IMPERFECT DESCRIPTION", 
 how far curative by legislation. 
 
 See Defective Assessments and Cubativb Acts, n. 3, 230. 
 IMPORTS, 
 
 when not taxable in importer's warehouse. 
 See Situs, n. 1, 41. 
 IMPROVEMEN'TS, 
 
 taxed as real estate: when same person owner of both, 106. 
 
 " corporael hereditaments " include houses and other buildings, 106, u.l. 
 
 when personal property, 106, n. 2. 
 
 improvements : sometimes declared personal property, 106, n. 3. 
 
 how treated in mode of assessment, 106, n. 3. 
 
 valuing separately: not necessarily erroneous, 106, n. 5. 
 
 description of: requirements found in levenue laws, 107. 
 
 when may be described and valued with land, n. 1, 107. 
 owned by other than owner of land, 107, n, 2. 
 when declared to be personal property, not to be assessed with real es- 
 tate, 107. 
 separate valuation from land and possessory interest when, 107, n. 3. 
 description of location on land generally not necessary, 107, n. 1. 
 INCOME, 
 
 from land no criterion of value, n. 4, 136. 
 INDIANA. 
 
 facts previous to contract for street improvements : estopped by charter 
 of Lafayette, from showing. 
 
 See Peksumptions and Estoppels, n. 1, 210. 
 judicial notice taken of articles of incorporation of drainage associa^ 
 tions. 
 
 ' See Dbainage Assessments, 337. 
 38 
 
594 INDEX. 
 
 INTANTS AND MINORS, 
 
 domicile of, while under control of, and supported by parents. 
 See Situs, 38, n. 5. 
 INHABITANT, 
 defined. 
 
 See Situs, 36. 
 when to be assessed, although a tenant. 
 
 See Name of Owneb, 69, n. 3. 
 INITIALS, 
 
 presumption when identical with initials of owner. 
 See Name of Owner, 60, n. 3. 
 INITIAL PKOCEEDINGS, 
 
 for requiring local public improvements. 
 
 See Street Impkovbments, 276, 279, n. 1,2; 283. 
 See Drainage Assessments, 230, 231, 232, 233. 
 See Swamp Land Districts (In California), 341. 
 INJUNCTION, 
 
 not granted wliere claim of title assessed. 
 
 See Possessory Eight to Public Lands, n. 1, 102. 
 fraudulent valuation relieved against. 
 
 See Valuation, 137, n. 2. 
 errors and irregularities: not ground for. 
 
 See Street Assessments, 315. 
 exceptions, 315. 
 INJURY, 
 
 presumed by failure to comply with form of assessment roll. 
 
 See Assessments, 7. 
 must be direct, not remote. 
 
 See Amending and Reviewing Assessments, 195, n. 6. 
 INTANGIBLE PROPERTY, 
 
 assessable only when made so by positive law. 
 
 See Personal Property, 126, n. 2, 
 INTENDMENTS, 
 
 after opportunity to make objections. 
 
 See Presumptions and Estoppels, 205, n. a. 
 INTENTION, 
 
 to change domicile must concur with action. 
 
 See Situs, 38. 
 to omit property from assessment, 168, n. 2. 
 discrimination in assessments, 190, n. 2. 
 to do street work: must be stated in positive terms. 
 See Street Assessments, 282, n. 4. 
 INTERBLENDING, 
 
 in listing and valuation, different classes of real and personal property. 
 See Personal Property, 127, n. 1. 
 INTER-STATE COMMERCE, 
 
 taxing property in transitu would be interference with. 
 See Situs, 41, n. 2. 
 IN TRANSITU, 
 
 property when, has no situs for taxation. 
 See Situs, 41. 
 
, INDEX. 695 
 
 IN TRANSITU.— confrinwed. 
 
 exemption extends to a poll tax, 41, n. 2. 
 IOWA, 
 
 names of owners and names on " transfer books," auditor may make 
 
 to correspond, n. 2, 7. 
 assessments made before tax levy: held curable by after-legislation. 
 See Defective Assessments and Cubative Acts, 232, n. 5, 
 IREEGULAEITIES, 
 
 after jiu-isdiction acquired : will not defeat assessment, n. 2, 386. 
 IRREPEALABLE, 
 
 exemption from taxation when constituting a vested right. 
 
 See Exemption from Taxation, 169, n. 9; 173, n. 3. 
 when part of charter or contract, 176, n. 3. 
 IRRIGATING DITCH, 
 
 right of way for: obtained through right of eminent domain. 
 
 See Drainage Assessments, 339. 
 when pending proceedings for riglit of way, abate, 339. 
 ITEMS, 
 
 entering into valuations need not be stated. 
 
 See Valuation, n. 5, 131. 
 
 J. 
 
 JAIL, 
 
 when regarded as a person's domicile. 
 
 See Situs, n. 8, 38. 
 JOINT ASSESSMENT, 
 
 must be made of property owned in .ioint tenancy. 
 See Name of Owner, 63, n. 4. 
 when property held in joint ownership cannot be assessed in severalty, 
 n. 4, 63. 
 invalid to unknown owners. 
 
 See Separate Parcels, n. 1, 110. 
 undivided unequal interests jointly assessed, illegal, n. 2, 112. 
 JOINT OWNERS, 
 
 joint assessment must be made to. 
 
 See Name or Owner, 63, n. 4. 
 JOINT VIEWING, 
 
 and assessing; making swamp land district assessments. 
 
 See Swamp Land Districts (in California), 354. 
 not required to go upon "each and every acre," 354. 
 certificate; that they " did view and jointly assess," insulflcient, 354. 
 JUDGMENT, 
 
 against owner and real property: conclusive as to validity of assess- 
 ment and delinquency. 
 
 See Presumptions and Estoppels, 209. 
 estoppel created by, 209. 
 JUDICIAL, 
 
 acts of assessors are. 
 
 See Assessor, 25, n. 1. 
 acts of boards of equalization are, 158, n. 1, 2. 
 action of board of supervisors on order for assessment not. 
 See Swamp Land Districts (in California), 361, n. 1. 
 
596 INDEX. ^ 
 
 JUDICIAL NOTICE, ' 
 
 of what officers courts will take. 
 
 See Officeb, 12. 
 of what, with respect to the conditions of the public lands, courts will 
 take. 
 
 See PossESSoET Rights to Public Lands.. 101, n. 1. 
 when unaided by statute, 300, n. 1, 2. 
 
 California: rule as to map or plat of San Francisco, 300, n. 3. 
 Indiana: under statute ; taken of contents of articles of drainage cor- 
 porations. 
 
 See Dkainage AssociATioifS, 337. 
 JUNIOE, 
 
 no part of name. 
 
 See Name of Owner, 60, n. 1. 
 JTTRISDICTION, 
 
 assessor has, only within statutory provision. 
 See Assessments, 8. 
 when none, over person and property, assessment void, 20; n. 2, 21. 
 error in favor of, makes assessor personally liable, 23. 
 facts giving, must exist at close of assessment, n. 1, 22. 
 new county created after property assessable : jurisdiction in assessor 
 
 of new county, 33. 
 assessor must have jurisdiction: when assessment made, n. 1, 43. 
 legal fiction of situs of personal property: does not control, n. 1, 45. 
 without state or district: no jurisdiction to assess, 48, n. 2. 
 headings double in meaning: construed applicable to system within, 
 
 82,6. 
 notice when required ; necessary to give, 156. 
 
 appearance: without notice no waiver, 156, n. 1. 
 when required must affirmatively appear, 156, n. 2. 
 when acquired only by notice, n. 2, 156. 
 
 where none existed to do act; legislature, by retroactive act cannot 
 cure. 
 See Defective Assessments and Curative Acts, 230. 
 acts necessary to acquire, part performed; when curable, 230, n. 5. 
 omissions : to perform acts necessary to acquire, 231 , u. 1. 
 street assessment: property and improvements partly within and 
 
 partly without corporate limits, 231, n. 7. 
 having attached other acts directory, 232. 
 limiting, of assessor to county; statutory, 232. 
 until acquired; valid assessment cannot be levied. 
 See Street Assessments, 276. 
 mode of acquiring, 276. 
 
 when mode may be acquired by ordinance, 276. 
 must be substantially, if not strictly followed, 276. 
 collateral attack for want of, 278. 
 facts to be established, 279, n. 2. 
 presumption; when indulged in favor of, 280. 
 acts are to be performed in the order prescribed. 
 
 See Street Assessments, n. 5, 282. 
 each constitutes a condition precedent, n. 5, 282. 
 
INDEX. 597 
 
 JURISDICTION',— continued. 
 
 omission to state last day of publication: when fatal to, 287. 
 over work attaches when, 
 
 See Stkeet Assessments, 289. 
 to entertain petition for swamp land district how acquired. 
 See Swamp Land Districts (in California), 343. 
 not acquired unless necessary facts in petition, 346, n. 1. 
 after organization of district, not open to collateral attack, 362, n. 3. 
 how acquired to sell shares for unpaid capital stock. 
 
 See Private Cokpokation Assessments, 370. 
 JURORS, 
 
 residents of district: not competent to act in assessment of damages. 
 See Street Assessments, n. 2, 296. 
 JURY DUTY, 
 
 place where liable to, test of taxable residence. 
 
 See Situs, n. 2, 37. 
 JURY TRIAL, 
 
 right to: not Infringed by swamp land districts. 
 
 See Swamp Land Distbicts (in California), 350. 
 
 no right to, in enforcement of a tax, 351. 
 
 See Dbainage Assessments, 339. 
 
 K. 
 
 KAKSAS, 
 
 joint assessments of separate parcels ifivalid. 
 
 See Separate Parcels, n. •2a, 111. 
 
 values fixed by taxpayer; changeable only " on inquiry," n. 4, 131. 
 
 inequitable rule for situs for taxation of certain personal property. 
 
 See Situs, n. 6, 52. 
 
 KNOWN OWNIIRS, 
 
 listing to unknown, when owner known, n. 3, 73. 
 
 separate tracts: must be listed, valued and tax extended separately to, 
 
 111, n. 2. 
 conflicting decisions, 111, n. 1, 3. 
 KNOWN OR UNKNOWN, 
 
 when provision is to owner if known, if unknown to occupant; no 
 
 option, 69. 
 if known, must be to owner, not to occupant, 69. 
 when only, assessor has option, 69, n. 2. 
 
 assessments to "unknown owners, known and unknown, and claim- 
 ants known and unknown," 70, n. 2, 5. 
 added without statutory authority, 71, n. 1. 
 added to assessment hut omitted from tax deed, n. 1, 3, 71. 
 When placed under heading for description, n. 1, 3, 71. 
 
 L. 
 
 LAND GRANTS, 
 
 in aid of railroad corporations while unpatented and cost of survey 
 unpaid. See Exemption from Taxation, 173, n. 1. 
 LAND IN DISPUTE, 
 
 to be assessed to unknown owners. See Name of Owner, 65, n. 2. 
 
598 INDEX. 
 
 LAW, 
 
 when assessment made, governs re-assessments, 197, n. 1. 
 
 See Ee-assessments, 197, n. 1. 
 in force when sale for delinquent tax : applies. 
 
 See Defective Assessments and Cubative Acts; 235. 
 in beneficial provisions: pm-chaser has vested rights, 135. 
 LAW OF THE LAND, 
 
 synonymous with " due process of law." 
 
 See Due Pkocess of Law, 250. 
 LEASED GEOLTS^D, 
 
 occupied by religious and charitable corporations not exempt from 
 taxation. 
 
 See Exemption from Taxation, 169, n. 7. 
 LEGAL EXILES, 
 
 for valuation for taxable purposes. 
 
 See Valuation, 130. 
 test of value, 130, n. 5. 
 fixing values by location, n. 5, 136. 
 Illinois: for valuation of railroad corporations, n. 3, 142. 
 LEGATEE,' 
 
 while legacy in hands of executor, not taxable. 
 See Name of Ownee. 67, n. 4. 
 LEGATEE AND HEIE, 
 
 See Heib and Legatee, 39. 
 LEGISLATUEE, 
 
 power of, to determine character and sufiSciency of description. 
 
 See Eeal Estate, 80, n. 2. 
 will of, must be obeyed, n. 1, 113. 
 
 may require taxation of franchise of corporation, 133, n. 6. 
 may provide for mimicipal boards of equalization, n. 1, 151. 
 when by direct enactment may make re-assessment. 
 
 See Ee-assessments, n. 3, 197a. 
 power to provide rules of evidence extends to taxes and assessments, 
 
 220, 11. 6. 
 may make assessor disqualified to impeach assessment, n. 6, 220. 
 power to cure defective assessments. 
 
 See Defective Assessments and Curattve Acts, 230. 
 no power to restrict defenses to tax suit. 
 
 See Due Pkocess of Law, n. 7, 251. 
 may authorize assessments upon property benefited, 275, n. 1. 
 LIABILITY, 
 
 for illegal or void tax : when continues. 
 
 See Ee-assessments, 197. 
 for tax or assessment; whether personal, lien only, or both. 
 See Street Assessments, 310. 
 See Private Corporation Assessments, 363, n. 4. 
 for capital stock, n. 1, .S65. 
 
 California: stock, may be waived and personal, pursued, 365, n. 3. 
 LIEN, 
 
 separate parcels must be separately assessed, when tax only lien. 
 See Separate Parcels, 111, n. 3 a. 
 
INDEX. 599 
 
 LIEN' — continved. 
 
 tax invalid, illegal or void, when continues. 
 
 See Re-assessments, 197, 197a, n. 4; n. 5, 197o. 
 priority of, as between tax and assessments. 
 
 See Street Assessment, 324. 
 when drainage assessment becomes. 
 
 See Drainage Assessments, 335. 
 attaches only upon lands sufficiently described, 337, n. 1. 
 LIMITATION-, 
 
 on right to tax shares of national banks. 
 See Situs, 55. 
 prospective, not retroactive, 55, n. 3. 
 on power by implication to exempt from taxation. 
 See Exemption from Taxation, n. 1, 2, 3, 4, 5, 167; 170, n. 2. 
 rules favoring or discriminating against one class of property or per- 
 sons. 
 
 See Equality and ITnifoemitt, 189. 
 when curative act effects defective assessments. 
 See Defective Assessments and Curative Acts, 233, 234, n. 1. 
 New York: to half value of property in assessment for each local im- 
 provement. 
 
 See Street Assessments, 303. 
 of powers for drainage. 
 
 See Drainage Assessments, 331. 
 LISTS, 
 
 of taxable proyerty: tax-payers required to furnish. 
 
 See Assessments, 4. 
 exempt property to be included anil noted, 4. 
 constitute first step in making assessment, 4. 
 assessor not concluded by value in, 4, n. 2. 
 
 failure to furnish, denial of hearing before board of equalization, 4, n. 4. 
 when oath required must be in form prescribed, 4, n. 5. 
 supplementary assessments, when list not required, entitled to hearing. 
 
 n. 6, 4. 
 failure to furnish, does not authorize over-valuations, n. 8, 4. 
 corporations: required to furnish, 
 
 See Board op Equalization, 159. 
 LOCATION, 
 
 of improvements on land: generally not necessary in description. 
 
 See Improvements, 107, n. 4. 
 arbitrary rule of valuation by. 
 
 See Valuation, n. 5, 136. 
 LODGING HOUSES, 
 
 of religious and charitable corporations; letting rooms for hire. 
 See Exemption from Taxation, 169, n. 6. 
 LOTS AND BLOCKS, 
 
 how described in assessments. 
 
 See Real Estate, 80, 5. 
 when described by; must be authorized by statute, 82. 
 subdivisions or plats; made by unautliorized person, 82, n. 4. 
 detached, wlien owned by one person: to be assessed to owner sepa- 
 rately. See Separate Parcels, n. 2, 111. 
 
600 INDEX. 
 
 LOWEST BIDDEB, 
 
 province of common council to determine. 
 
 See Strebt Assessments, 290. , 
 
 when let to, patented process cannot be used, n. 5, 290; 295, n. 2. 
 LOW LANDS, 
 
 drainage of, public improvements although benefits accrue to private 
 
 owners. 
 
 See Drainage Assessments, 330. 
 
 LUMPING ASSESSMENTS, 
 
 of distinct classes of property objectionable. 
 
 See Improvements, 107; n. 1, 120; n. 3, 141. 
 
 M. 
 MACHINE SHOPS, 
 
 when included in assessment of real estate and in right of way. 
 See Situs, n. 4, 56. 
 MAINE, 
 
 joint assessments of separate tracts, invalid. 
 
 See Separate Parcels, n. 2, 111. 
 MAJORITY, 
 
 acts of, of board of equalization. 
 
 See Board op Equalization, n. 3 a, 153. 
 having signed petition for street improvements acquire vested rights. 
 
 See Street Assessments, 281. 
 of acreage: owners of must sign petition for swamp land district. 
 
 See Swamp Land Districts (in California), 341. 
 of petitioners must sign by-laws, 347. 
 MANAGING AGENT, 
 
 of foreign corporation : domicile of, situs for taxation. 
 
 See Situs, 47, n. 6; 49. 
 when, resides out of state, 47. 
 
 for deposited securities, assessable at domicile, 49, n. 2. 
 where, for personal property actnally situated in different counties, 
 n. 1, 49. 
 MANDATOEY, 
 
 requirements for assessments are. 
 
 See Name op Owner, 65, 70. 
 
 Mandatory and Directory, 220. 
 Street Assessments, 285, n. 5; 290. 
 Possessory Eights to Public Lands, 104, n. 1. 
 MANDATOEY AND DIEECTOEY, 
 
 statutory form of assessment: observance mandatory. 
 See Possessory Eights to Public Lands, 101, 106, 113, 220, 223, n. 1. 
 acts intended for tax-payers' protection and information, 220, 220, n. 5. 
 test : whether mandatory or directory, 221. 
 acts for benefit and protection of tax-payer, mandatory, 220, n. 3. 
 notice of expiration of time for redemption, mandatory, 221, n. 4. 
 separate columns : when items of tax to be kept in, mandatory, 223. 
 form: prescribed by statute, mandatory, 223, n. 1. 
 time within which assessment roll must be completed, mandatory, 224. 
 difference between. 
 See Defective Assessments and Curative Acts, n. 2, 233. 
 
INDEX. 601 
 
 MANDATORY AND DIEECTOET— con«i)iMe(i. 
 acts belonging to, defined, 319. 
 taking of oath, when mandatory, 319. 
 MAEKET YALUE, 
 
 of shares of capital stock. 
 
 See Valuation', 135. 
 includes franchise, 133, n. 1, 8. 
 MAEKIED "WOMEN, 
 
 domicile of, that of husband. 
 
 See Situs, 38. 
 MASSACHUSETTS, 
 
 joint assessments of separate tracts invalid. 
 
 See Separate Parcels, n. 2, 3, 111. 
 date fixed for completing assessment roll directory merely. 
 See Maistdatohy and Dibectoet, 224, n. 2. 
 >tATERIAL AND WORK, 
 must be same as prescribed. 
 
 See Street Assessments, 29.5. 
 changed after contract: renders assessment illegal, 295. 
 METES AND BOUNDS, 
 
 ■when real estate described by, 
 
 See Real Estate, n. 3, 80. 
 naming owners of adjoining lands, christian or given names must Be 
 
 stated, 80, n. 3. 
 excepting part of a tract, metes and bounds must be given, 83. 
 MEXICAN AND SPANISH LAND GRANTS, 
 
 when wet or overflowed may be included in swamp land districts. 
 See Swamp Land Districts (in California), 349. 
 MICHIGAN, 
 
 statute authorizing sjile of property of third persons found in possession 
 of delinquent: held valid. 
 
 See Due Process of Law, n. 2, 251. 
 mode of entering and keeping fund of drainage taxes. 
 See Drainage Assessments, n. 2, 336. 
 MIDDLE OP RIVER AND MIDDLE MAIN CHANNEL. 
 
 defined. See Situs, n. 3, 50. 
 
 MINES, 
 
 assessments of proceeds of only, in Nevada. 
 
 See Possessory Rights to Public Lands, 103. 
 MINIMUM VALUE, 
 
 statute fixing: unconstitutional. 
 
 See Valuation, n. 5, 136. 
 MINNESOTA, 
 
 three opportunities to be heard in street assessments under charter ol 
 St. Paul. 
 
 See Street Assessments, 313. 
 MINERAL LANDS, 
 
 right of possession to, subject to taxation. 
 
 See Possessory Eights to Public Lairds, 100. 
 MINORS. See Situs, 38. 
 MISNOMER. 
 
 See Name of Owner, 60. 
 
602 INDEX. 
 
 MISTAKE, 
 
 errors may be provided against prospectively. 
 
 See Namk op Ownbk, 62, n. 1. 
 MISSOURI, 
 
 assessments for local street improvements: a property liability only. 
 See Street Assessments, 310, n. 10. 
 MONEY LOANED, 
 
 how may be described. 
 
 See Pebsonal Pbopbbtt, 126, n. 3. 
 MONET AND SOLVENT DEBTS, 
 
 dollar valued at a dollar; cannot be increased. 
 
 See BoAED OF Equalization, n. 3, 153. 
 MORE THAN OWNED, 
 invalidates assessment. 
 
 See Name of Owner, 64; 112, n. 1, 3. 
 when valued separately, valid as to land owned, 64, n. 2. 
 street assessments: same principles govern, 65. 
 lands of one owner not to be included in, of others. 
 See Separate Parcels, 112, n. 3. 
 MORTGAGE, 
 
 taxation of, as a separate entity, 44. 
 sale of, for delinqent tax: effect of, on debt secured, 44. 
 MORTGAGED OR PLEDGED SHARES OF STOCK, 
 taxable to mortgagor or pledger. 
 
 See Situs (continued), 56, n. 6. 
 statute providing for taxation to mortgagee: construed, 56, n. 6. 
 MUNICIPAL CORPORATION, 
 
 may levy assessments on property benefited by local improvements. 
 See Assessments, 1. 
 
 Street Assessments, 275. 
 may levy taxes upon county assessment unless prohibited by constitu- 
 tion, 3, n. 2. 
 cannot tax property of another municipal corporation. 
 See Exemption from Taxation, ITt, n. 1. 
 
 N. 
 
 NAME, 
 
 See Real Estate, 80. 
 when by subdivisional name sufficient, 82, n. 1. 
 when a known quantity, within exterior Hues: by common name, 
 
 82, n. 3. 
 of tract as heading: description in appropriate column: how con- 
 sidered, 93. 
 NAME AND PORT, 
 
 to be lettered ou each vessel. 
 
 See Situs, 42. 
 NAME OF OWNER, 
 
 assessment must be, when known: when not, to unknown owners, 8. 
 assessment to owner by proper name if known, '60. 
 not to name of deceased person, 60, n. 6, 7. 
 initials sufficient when identical with, 60, n. 3. 
 
 when not identical, assessment invalid, 60, n. 4. 
 
IlifDBX. 603 
 
 KAME OF OWNEE— continued. 
 
 christian and surname : must be given, 60. 
 
 leaving Christian name blank, 60, n. 5. 
 
 middle name : need not be given, 60, n. 5a. 
 
 wrong name: assessment to — invalid, 60, n. 10. 
 
 legislation may provide otherwise, 60. 
 
 listing to, may be controlled by statute, 61. 
 
 errors: mistakes: omissions: as to, may be provided against, 61, n. 1. 
 
 when assessment may be to liame of deceased person, 61, n. 2. 
 
 knowledge of, by assessor, 61, n. 3. 
 
 assessment to "Home Insurance Company," Bigelow Bros., agents, 
 
 sustained, n. 7, 61. 
 persons in possession: may be required to disclose owner, 61, n. 8. 
 also give description of property, 61, n. 8. 
 penalty for refusal, 61, n. 8. 
 warehouse.man : must furnish, and description, n. 8, 61. 
 when provision against error of, cures only as to personalty, 61, n. 9. 
 when assessment to wrong name, valid, 61, n. 10. 
 words used, not a name: not included in curative statute, 61, n. 11. 
 copartnership name : assessment to, n. 7, 60. 
 idem sonans : applied to assessments, n. 2, 62 ; 60. 
 contraction of firm name: when may be used, 62, n. 4. 
 surname only: with blank prefixed, n. 5, 62. 
 when name not known, assessment to unknown owners, 65. 
 attempt to list to owner: true name must be given, 65. 
 unless assessment may be to owner or occupant, must be to true 
 
 owner or unknown, 65, n. 2. 
 when assessment may be in name of owner or occupant, n. 1, 69. 
 if known, must be to owner, not to occupant, 69. 
 assessed to name of deceased person, illegal. 
 
 See Strbkt Assessments, 299, n. 1. 
 to be stated, if known, in petition for swamp laud district. 
 See Swamp Land Districts {in California), 341. 
 if unknown: to be so stated, 341. 
 NATIONAL BANKS, 
 
 erroneously fixing value on shares of — assessor not liable. 
 
 See AssESSOE, 20. 
 shares of, taxable to residents and non-residents where bank located. 
 
 See Situs, 55, n. 5. 
 real estate of, assessable where situated, 55. 
 list of stockholders of, subject to inspection-, 55, n. 1. 
 tax on shares of, not a tax on IT. S. bonds of, n. 1, 55. . 
 right of taxation of shares: a settled question, 55. 
 limitation on right, 55; 174, n. 1. 
 prospective, not retroactive, 53, n. 3. 
 statutory provision necessary to authorize tax, 55, n. 6. 
 shares in, taxable only as prescribed by Congress, n. 5, 1.32; 174, n. 1. 
 shareholders: must be allowed deductions on like terms with other 
 
 investers in moneyed capital. 
 
 See Equality and Unifokmitt, n. 2, 186. 
 when denial of deductions to, valid, 186, n. 4. 
 
604 INDEX. 
 
 NEBRASKA, 
 
 joint assessments of separate tracts, invalij. 
 
 See Sep ABATE Parcels, n. 4, 111. 
 date for returning assessment roll : directory merely. 
 
 See Mandatoby and Dieectobt, 224, n. 2. 
 NEVADA, 
 
 joint assessments of separate parcels : ruled by minority decisioB, in- 
 valid. 
 
 See Sep ABATE PaecSls, n. 3, 111. 
 
 joint valuation of separate parcels, held valid, n. 2, 141. 
 NEW ASSESSMENTS, 
 when may be made. 
 
 See Swamp Land Districts (in California), 359. 
 NEW DISTRICT, 
 
 may be formed out of one already organized. 
 
 See Swamp Land Districts (in California), 345, n. 4. 
 NEW JERSEY, 
 
 description by quantity and location, held good. 
 
 See Real Estate, n. 1, 86. 
 NEW YORK, 
 
 excessive valuation in street assessments : reviewable by the courtsj 
 
 138, n. 5. 
 
 See Valuation, 38. 
 
 part illegal: how whole affected, 138, n. 5, 6. 
 raising prices after letting work, n. 7, 138. 
 NON-RESIDENT, 
 
 when property of, in custody of agent. 
 
 See Situs, 43, n. lo. 
 NORTH CAROLINA, 
 
 act of 1795, for draining low lands. 
 
 See Swamp Land Districts (in California), 352. 
 NOT A BAR, 
 
 assessment whete not taxable, to taxation where liability exists, 
 34, n. S. 
 NOT BENEFITED, 
 
 cannot be made liable to assessments. 
 
 See Street Assessments, 311a, n, 1. 
 NOTES, BONDS AND OTHER CONTRACTS, 
 treated as personal property. 
 
 See Situs, 43. 
 notes in escrow: for land alienable as paid for, not taxable to payee. 
 See Peesonal Property, n. 6, 126. 
 NOTICE, 
 
 assessment, without, is not due process of law, 4; n. 6a, 4. 
 recorded title, not notice to assessor of ownership. 
 
 See Name of Owner, 63, n. 3. 
 how given in drainage assessments, must appear, n. 1, 133. 
 necessary to persons to be affected. 
 
 See Board or Equalization, 154. 
 when bound to take, of time and place of meeting. 
 
 See Board op Equalization, 154, n. 5, 5o. 
 
INDEX. 605 
 
 NOTICE— continued. 
 
 time of meeting of board, when not, 154a. 
 
 California: assessments by state board, must be given, n. 1, 154a. 
 
 what facts, should contain, 155. 
 when required necessary to give jurisdiction, 156. 
 appearance after addition without, no waiver, 156, n. 1. 
 when required, must appear affirmatively, 156, n. 2. 
 uncollected tax: when may add without, 157. 
 required in re-assessments, as in original assessment, 197c. 
 a 30 day's notice: five publications, n. 4, 221. 
 and opportunity to appear and present objections, necessary. 
 
 See Dtje Pkocess op Law, n. 8, 250, 252. 
 unless, could avail nothing, 252, n. 4. 
 must be given before charge becomes absolute,- n. 1, 252. 
 must be provided for by the law, n. 2, 252. 
 a constitutional right, n. 3, 252. 
 not necessary after organization of reclamation district before suit 
 
 brought, 253. 
 to bidders: must not fix prices on material, 290. 
 of filing drainage assessments: time thereafter for appeal. 
 
 See'DBAiNAaE Assessments, 835, n. 1. 
 of presentation of petition for swamp land district. 
 
 See Swamp Land Districts (in California), 341. 
 of assessments by private corporations. 
 
 See Pbivatb CoBPOKATioif Assessments, 870, n. 1, 2. 
 NUDE PACT, 
 
 exemption laws without any consideradon therefor, are. 
 See Exemption fbom Taxation, 176, n. 6. 
 
 o. 
 
 OATH, 
 
 See Yeeification to Assessment List, 5. 
 of assessor when required, must be in form prescribed, 101, n. 4. 
 
 See Mastdatobt and Dibectoht, 220; n. 1, 819. 
 same in substance but not in words, sufficient. 
 
 See Deaibtage Assessments, 336, n. 2. 
 OBJECTIONS, 
 
 opportunity for making and hearing. 
 
 See BoABD of Equalization, 151. 
 necessity for receiving and hearing. 
 
 See Ee-asskssments, 197c, n. 1. 
 when opportunity to make, before work accepted, only remedy, 
 See Stbeet Assessments, 201. 
 OFFEK, 
 
 to pay proper proportion of tax charged to be excessive : precedent 
 condition, n. 6, 186. 
 OFFICER, 
 
 authorized by law must make assessment, 10, n. 1. 
 when designated by constitution, no other can, 10, n. 1. 
 dejure : who are, 11. 
 de facto : who are, 11, 13. 
 
 assessments by, valid, 11, 13, n. 2, 
 
606 INDEX. 
 
 OFFICER— continued. 
 
 when authority must appear on face of proceedings, 12. 
 distinction between regular and special, n. 3, 12. 
 when officer protected against fraud and irregularities. 
 See Amending and Eetikwing Assessments, 196, n. 1, 2, 3. 
 OFFICIAL OATH, 
 
 See Oath, 336, n. 2. 
 official survey: lands may be described by. 
 See Real Estate, 80. 
 OHIO, 
 
 local assessments limited to benefits. 
 
 See Street Assessments, n. 2, 275. 
 statute authorizing assessments upon full paid stock: held unconstitu- 
 tional. 
 
 See Pkivate Cobporation Assessments, n. 1, 364. 
 OMISSIONS. 
 
 in discharge of duties, makes assessor liable, 24. 
 
 of previous year, cannot he included without statutory authority, 20. 
 
 errors and mistakes as to names, may be provided against, 61, n. 1. 
 
 unintentional; do not vitiate, 168, n. 1. 
 
 intentional, do, 168, n. 2. 
 
 through error of law, 168. 
 to include, does not work exemption, 180. 
 and inequalities from oversight or inefficiency, 190, n. 1. 
 intentional, and intentional discriminations, 190, n. 2. 
 when slight, in plans and specifications ; no injury to bidder, n. 5, 195. 
 of part of affidavit required of assessor. 
 
 See Presumptions and Estoppels, 205, n. 4. 
 of part and assessment of entire cost on other property, 207. 
 of acts intended for tax-payers' protection and information. 
 
 See Mandatory and Dibectoet, 220, n. 5. 
 of words required by statute, n. 3, 224. 
 of all acts to acquire jurisdiction, 231, n. 1 ; 236. 
 defects which may be cured by curative acts, 232. 
 from notice: of last day of publication when required. 
 
 See Stbebt Assessments, 387, n. 2. 
 of part from plan and specifications, and included in work and cost. 
 See Street Assessments, 290, n. 1. 
 ONE CONTRACT, 
 
 must embrace all work in resolution. 
 
 See Street Assessments, 293, 298, n. 1. 
 OPTION AND OPTIONAL, 
 
 when and when only assessor has, to assess to owner, occupant, pos- 
 sessor or person in control. 
 
 See Name of Owner, 69, n. 2; 70, n. 3. 
 ORDER, 
 
 made on application of swamp land district, for assessment, not re- 
 viewable. 
 
 See Swamp Land Districts (in California), 361, n. 1. 
 of board of equalization: may be entered after adjournment. 
 See Board of Equalization, 157, n, 1. 
 
INDEX. 607 
 
 OKDINANCE, 
 
 providing for street improvements must describe the work. 
 See Street Assessments, 282, 283. 
 " OR," 
 
 assessment to named person or unknown owners. 
 See Separate Paecbls, 110, n. 1. 
 OVEE-CHAEGE, 
 
 must be sliown to have injured complainant. 
 
 See Street Assessments, 312, n. 4; 314, n. 1. 
 OWNEE OR OCCUPANT, 
 
 state may require assessment to, " and all owners and claimants, known 
 and unknown." 
 
 See Name of Owner, 61, n. 7. 
 unless assessment authorized to, must be to true owner or unknown, 
 
 65, n. 2. 
 when assessment may be "in name of owner or occupant," 69, n. 1. 
 
 P. 
 
 PAR VAT.UE, 
 defined. 
 
 See Valtiation, 135, n. 2. 
 
 PARCELS NOT EXCEEDING 640 ACRES, 
 
 fractional, may be united, 95, n. 1. 
 PAEOL EVIDENCE, 
 
 not admissible to aid description. 
 
 See Ebal Estate, 80. 
 may be to identify land with description, n. 36, 80. 
 to prove name by which called, n. 3, 86. 
 PAETNEE, 
 
 individual property of: cannot be assessed to firm. 
 See Name of Owner, 63. 
 PATENTED MATERIAL AND PROCESSES, 
 if used, must be separated from other items. 
 
 See Street Assessments, n. 5, 290. 
 notice to bidders : must separate, 290. 
 can only be used when authorized by statute, 295, n. 2. 
 opposite view, n. 2, 295. 
 PAYMENT, 
 
 of illegal tax and recovery of money. 
 
 See Amending and Reviewing Assessments, 194. 
 PERJURY, 
 
 false oath to tax list is. 
 
 See Assessments, 4. 
 PERSON, 
 
 also inhabitant: includes corporation. 
 
 See Situs, 47, n. 1; Equality and Uniformity, 188, n. 1. 
 statute requiring persons, inhabitants, and officers of corporations to 
 
 aid in listing, construed, n. 1, 49. 
 when foreign corporation comprehended within " persons and associa- 
 tions " in statute, n. 3, 49. 
 includes a corporation. 
 
 See Equality And Uniformity, 188, n. 1. 
 
608 INDEX. 
 
 PEESONAL LIABILITY. 
 
 See Street Assessments, 310. 
 for private corporation assessments. 
 
 See Pbivate Cobpobation Assessments, 363, n. 4. 
 PERSONAL PEOPERTY, 
 
 must be assessed in owner's taxable district. 
 
 See Situs, 30. 
 situs of: follows person of owner: when not otherwise provided, n. 5, 39. 
 in transitu : has no situs for taxation, 41. 
 when may be assessed where found, 43, n. 4. 
 when to be listed to agent or person having charge, 43, n. 5. 
 may have situs independent of owner, 45. 
 
 each class or species with value, sufficient description, 120, n. 1. 
 '•personal property," "money loaned," "mining stocks," when 
 
 sufficient description, n. 3, 5, 120. 
 when buildings and structures classed as, how described, 121, n. 2. 
 different classes: to be listed, set down and valued separately, n. 1, 
 
 127; 140, n. 1. 
 valued separately from real, 140, n. 1. 
 
 when statute requires different classes to be stated; must be separately 
 valued, 140, n. 2. 
 PETITION, 
 
 wlien initial proceeding to require street improvements what to contain. 
 See Street Assessments, 279. 
 to organize swamp land district: what to contain. 
 
 See Swamp Land Districts (in California), 341. 
 for organization of new district out of one already organized, 346. 
 to procure appointment of commissioners to malce assessment, 853. 
 to procure additional or "new" assessment, 359. 
 PETITIONERS, 
 
 when a majority acquire vested rights. , 
 
 See Street Assessments, 281. 
 PLANS AND ESTIMATES, 
 
 swamp land districts must procure before getting order for assessment. 
 See Swamp Land Districts (in California), 347. 
 PLANS AND SPECIFICATIONS, 
 
 when required are conditions precedent to street improvements. 
 
 See Street assessments, 290. 
 when required, conditions precedent: contract before filing, assess- 
 ment void, 321, n. 1. 
 PLAT, 
 
 land when irregular shape and less than a sixteenth may be platted 
 
 and described by, n. 3a, 80. 
 made by one not authorized: description by invalidates assessment, 
 82, n. 4. 
 PLEDGED. See Situs (continued), 56, n. 6. 
 
 POSSESSION, 
 
 when in agent: assesssment to him. 
 
 See Name of Owner, 66. 
 POSSESSORY EIGHTS TO PUBLIC LANDS, 
 taxable, 101, n. 1, 4. 
 should show valuation of possessory right only, 139, n. 1. 
 
IXDEX. 609 
 
 rOWER OF LEGISLATURE, 
 
 to prohibit setting aside assessments. 
 
 See Stkeet Assessments, 316. 
 PRECEDENT CONDITIONS. See CoNDlixioNS Pkecedent. 
 PKE-EMPTION & HOMESTEAD RIGHTS, 
 
 not taxable, 100. 
 PRESUMPTIONS, 
 
 of injury: by failure to comply with form of assessment roll. 
 
 See Assessments, 7. 
 that personal property follows domicile of owner. 
 
 See Situs, 34. 
 exceptions to rule, 34, n. 1. 
 of identity: of names with persons. 
 
 See Name op Owner, 60, n. 3. 
 when listing to unknown owner, 72, 73. 
 when numbers of lots and blocks in addition and original plat the same. 
 
 See Reat, Estate, 82, n. 3a. 
 when headings, double in character or meaning, S2, n. 6. 
 tliat discretion in making re-assessments was exercised on sufficient 
 
 evidence. See Re-assessments, n. 4, 197. 
 when indulged in' favor of jurisdiction. 
 
 See Street Assessments, 280. 
 of benefits: when discretion exercised to make local improvemant 
 special tax. 
 
 See Street Assessments, 309, n. 1, 2. 
 of benefits to extent of cost of improvements when indulged, 309, n. 1. 2. 
 
 when not indulged, n. 4, 309. 
 favors legality and regularity of proceedings. 
 
 See Drainage Assessments, n. 2, 336. 
 PRESUMPTIONS AND ESTOPPELS, 
 
 Presumptions: favor validity of assessments, 205. 
 
 $ not appearing, 205, n. 3. 
 
 when omission of part of affidavit required by assessor, 205, n. 4. 
 
 favors assessments made by three or more, 206. 
 
 defect where apparent: presumption not indulged, 207. 
 
 omission: of part and assessment of entire cost on other property, 207. 
 
 proposals: placing bids so as to omit portion of property, 207, n. 1. 
 
 majority: when necessary to petition: presumption in favor of. 
 
 See Street Assessments, 278, n. 1. 
 that assessment was apportioned according to benefits, 208, 1. 
 where judgment is taken for an undivided portion, instead of the 
 
 whole, 208, n. 2. 
 estoppel by judgment as to assessment and delinquency, 209, n. 1. 
 
 by failure to object: applies to local assessments, 210. 
 taking no steps to prevent acceptance of work, 210. 
 PRINCIPAL AND AGENT, 
 
 principal to be assessed on choses in action, held by agent subject to 
 
 order. See Situs, 43, n. 2. 
 held by agent in another county, 44, n. 1. 
 not assessable for, held out of state, 44. 
 whether principal or agent assessed, facts which determine, 44. 
 
 39 
 
610 INDEX. • 
 
 PRINTED LISTS, 
 
 usually furnished to tax-payers. 
 
 See Valttation, 130. 
 PRIOR TAXATIOK 
 
 does not relieve from taxation. 
 
 See Situs, 34, n. 3; 46. 
 PRIOR TAX SALE, 
 
 yislds to subsequent tax lien. 
 
 See Street Assessments, 324. 
 PRISON. See .lAii,, 38, n. 8. 
 
 PRIVATE AGREEMENT. See Secbet Agbeement, 292, n. ], 
 PRIVATE CORPORATIONS. 
 
 See CoRPOKATroNS, 1. 
 
 See Private Corporation Assessments, 363. 
 PRIVATE CORPORATION ASSESSMENTS, 
 "calls" and "assessments" defined, 363, .364. 
 
 when, not materially different, 363, 364. 
 " calls " generally, only enforceable by sale of shares, 363, n. 2. 
 sale, when provided for only: no other remedy. 363, n. 3. 
 calls: personal liability: where language of subscription so framed, 
 
 363, n. 4. 
 assessments: when agreement to pay all legal assessment, 363, n. 5. 
 promissory note given for shares payable in such proportion and time 
 
 as required: enforceable, 363, n. 6. 
 subscribers not bound by enlarged obligation of amendment to charter, 
 
 363, n. 7. 
 call-assessments: levied for unpaid capital, 364. 
 "assessment" designates such charges, 364. 
 power to assess full paid stock: not always conferred, 364, 36.5. 
 "calls" for unpaid shares : same rules apply as levying assessments, 365. 
 extent of liability: in some states only sale of shares: in others, per- 
 sonal, 365. 
 CAi.irORNiA : limitations on assessments, 365. 
 each not to exceed 10 per cent, of capital stock, 365. 
 when for debts: may equal unpaid capital, 365. 
 further exception: without limit, when an insurance company, 365. 
 subscribed capital stock: when required and when not required, 365. 
 assessment leviable only for authorized purposes, 365. 
 raining corporations: stock not assessable for unpaid shares, n. .365. 
 power, to make assessments : determined by charter or statute, 366. 
 
 when in corporation: cannot be delegated to directors, 366, n. 1, 
 must be exercised by stockholders, 366. 
 "at a legal meeting of the corporation," means stoekholders' meet- 
 ing, 366. 
 number of required shares must be subscribed prior to assessments, 
 366, n. 2. 
 must appear, 363, n. 3. 
 conditional subscription cannot be considered, 366, n. 5. 
 subscription must be made before assessment levied, 368. 
 same day: if after levy, assessment invalid, 368, n. 1. 
 certificate of incorporation must be filed before assessment, 369. 
 
INDEX. 611 
 
 PRIVATE CORPOKATION ASSESSMENT— coniinued. 
 
 consolidation certificate: same rule, 369. 
 
 assessment cannot exceed maximum fixed by charter, n. 1, 369, n. 2. 
 
 by-law maximum when not binding, 369, n. 2. 
 
 by-laws : cannot inhibit assessments authorized by statute, n. 2, 369. 
 PROCESS, 
 
 when regular: protects officer against fraud or irregularity in assess- 
 ment, 196, Ji. 3. 
 PEOPERTr, 
 
 word used in general sense, does not include choses in action, n. 5, 39. 
 PROSPECTIVE AND KETKOSPECTIVE. 
 
 See Defectivb Assessments and Curative Acts, 235. 
 PROTECTION, 
 
 legal consideration for taxation. See Situs, n. 3, 30. 
 PUBLIC LANDS. 
 
 See PossEssoEY Eights to Public Lands, 100. 
 PUBLIC PROPERTY, 
 
 exempt from taxation, 165. 
 
 liable for local assessments, 170, n. 1, 
 
 not a fixed liability, power to exempt from, n. a, 170. 
 
 R. 
 
 RAILROAD. 
 
 See Situs, 50. Valuation, 142. 
 
 rule of valuing when extending beyond state or tax district, 142, n. 1, 
 2.3. 
 RAILROAD TRACK, 
 
 what comprehended by term. 
 
 See Railroads, n. 4, 50. 
 See Valuation, 131, n. 5. 
 RANGE, TOWNSHIP AND SECTION, 
 in descriptions of real estate. 
 
 See Real Estate, n. 3, 80. 
 REAL PROPERTY, 
 
 assessable in county or district where situated. 
 
 See Situs, 30. 
 how described. 
 
 See Description, 80, 82, n. 3. 
 See Improvements, 106, 107. 
 RE-ASSESSMENTS, 
 
 authorized only by statute, 197. 
 
 invalid, illegal or void tax: when persons and property may be re- 
 assessed, 197. 
 lien: liability, for illegal or void tax, when continues over, 197. 
 assessment: when defectively or irregularly made, 197. 
 values: must have reference to date of original assessment, 197, n. 1. 
 law: also to law which authorized it, 197, n. 1. 
 when made by unauthorized officer, 197, n. 2. 
 staliute: providing for re-assessments for five back years, n. 2, 197. 
 county, city and town boards or officers, may be authorized to make, 
 197, n. 3. 
 
612 INDEX. 
 
 KE-ASSESSMENTS— con«inwe(i. 
 
 how amount of assessment to each lot or parcel may he determined 
 
 n. 2, 197. 
 estoppel: as to invalidity of tax, applying for re-assessments, n. 3, 197. 
 stay of proceedings: when tax declared illegal or void, 197, n. 4. 
 presumption : that discretion in making, was on sufficient evidence, 
 
 n. 4, 197. 
 defect in assessment : affecting all the property of town or district, 
 
 n. 4, 197. 
 assessor's affidavit: defective, no objection to re-assessment, n. 4, 197. 
 doctrine of, applies to street assessments, 197a. 
 work must have been authorized, or such as could have been, 197a, 
 
 n. 1, 2, 2a. 
 where work not authorized: 197n, n. 1. 
 Wisconsin: act authoiizing street assessment in Madison, n. 1, 107a. 
 
 statute providing for, within towns and cities, n. 2, 197a. 
 void assessments : when cannot be made basis of, 197a. 
 making and mode : must be provided by statute, 197a, n. 3, 1976. 
 must be made by municipal authorities, when municipal tax, 197a, 
 
 n. 3a. 
 county boards may be empowered, n. 2, 197a. 
 
 paving, includes all necessary work; grading includes filling, n. 2, 197a. 
 when by direct enactment legislature may make, ii. 3, 197a. 
 more comprehensive tlian curative acts, 1976. 
 tax adjudged illegal and void, and collection enjoined; no objection to, 
 
 1976; n. 1. 
 substitute for original assessment, 197e. 
 subject to same rules of notice and equalization, 197c. 
 cannot be, when original assessment valid, 168. 
 
 nor to make up deficiency in collection of, 198, n. 1. 
 party requesting, estopped as to authority to make, 199, n. 1. 
 Minnesota: under charter of St. Paul authoriised to re-assess. 
 See Street Assessments, 305. 
 when assessment set aside or declared void "for any cause 
 whatever," 305, n. 1. 
 EE-ASSURANCE RESERVE, 
 
 and "premiums due and in course of collection," taxable, 134, n. 3. 
 RECITALS, 
 
 in record, of publication of resolution and notice, not sufficient. 
 See Street Assessments, n. 1, 288. 
 RECORDED TITLE, 
 not notice to assessor. 
 
 See Name op Owner, 63, n. 3. 
 REDEMPTION, 
 
 to whom taxable during period of. 
 
 See Name op Ownbb, 68. 
 See Possessory Right to Public Lands, 104, n. 2. 
 REFUSAL, 
 
 to furnish list: denied right to hearing before equalizers, n. 4, 151, 159. 
 what will constitute a refusal, n. 4, 4. 
 of agent to return list, n. 3, 66. 
 
INDEX. 613 
 
 RE-LETTING, 
 
 ■when contractor fails. 
 
 See Stbeet Assessments, 294, n. 5. 
 EEMEDT, 
 
 for enforcement of tax assessed upon debt of non-resident. 
 
 See Situs, 44. 
 against illegal assessments. 
 
 See Street Assessments, 315, n. 1, 2, 3, 4. 
 ■when provided for by statute: restricted thereto. 
 
 See Pbivate Cohporation Assessments, 463, n. 3. 
 REPEAL, 
 
 of exemption from taxation ■when no part of charter. 
 
 See Exemption from Taxation, 169, n. 8. 
 immunity from, cannot be granted when right to, reserved in constitu- 
 tion, 169, n. 11. 
 general exemption laws may be repealed, 176, n. 1, 2. 
 after contract for street improvement let; ineffectual. 
 See Street Assessments, 281. 
 RES AD,JUDICATA, 
 
 not applied to proceedings before board of equalization. 
 See Board of Equalization, 153, n. 2a. 
 RESIDENCE, 
 
 and location of real property : questions of fact, n. 1, 23. 
 RESOLUTION, 
 
 and notice: required in street improvements, how served. 
 
 See Street Assessments, 276. 
 in San Francisco: must describe work and locality, 279, n. 1, 2; 283. 
 must include all work included in assessment, 284, n. 2, 4; 285. 
 RETROACTIVE, 
 
 legislation when due process of law. 
 
 See Dv e Process op Law, 250, n. 8. 
 RETROSPECTIVE AND PROSPECTIVE, 
 
 See Prospective and Retrospective, 325. 
 RETURN, 
 
 when must show assessment of damages as well as benefits. 
 See Street Assessment, 307, n. 1. 
 REVIEWING- ASSESSMENTS, 
 
 See Amending and Reviewing Assessments, 191, 90. 
 when not reviewable, 192. 
 RIGHT OF TAXATION, 
 
 independent of subjection of same property to taxation elsewhere. 
 See Situs, 34, n. 3; 46. 
 Double Taxation, 44. 
 RIGHT OF WAY. 
 
 for railroads : assessed as real estate. 
 
 See Valuation, 142; n. 2, 142. 
 for ditches, &c., acquired through eminent domain. 
 See Drainage Assessments, 339. 
 provisions of statute: must be strictly pursued, 339. 
 Indiana: damage for, included in assessment for damages and benefits. 
 See Drainage Assessments, 339. 
 
614 INDEX. 
 
 KI6HT OF 'WAY— continued. 
 
 Indiana: not necessary to acquire, before collecting drainage assess- 
 ment, 334, n. 3, 4. 
 Michigan : rule the other way, 334, n. 6. 
 California: rule same as in Michigan, 834, n. 7; 345, n. 6. 
 See CooLBT OK Taxation, 334, n. 8. 
 KOAD BED, 
 
 of railroad: taxed as riglit of way. 
 
 See Valuation, 142. 
 
 S. 
 SANITARY CONTROL, 
 over low lands. 
 
 See Drainage Assessments, 330. 
 SECOND ASSESSMENT, 
 
 before first all collected, not objectionable. 
 
 See Swamp Land Distkict (in California), 361. 
 Private Corporation Assessments, 371. 
 SCHEDULE, 
 
 annexed to petition for organization of swamp land district, may be 
 referred to. 
 
 See Swamp Land Districts (in California), n. 1, 342. 
 SECRET AGREEMENT, 
 
 with part of property owners. 
 
 See Street Assessments, 292, n. 1. 
 SECTION, TOWNSHIP AND RANGE. 
 
 See Real Estate, n. 3, 80. 
 SEPARATE COLUMNS, 
 
 when items of tax to be kept in : mandatory. 
 
 See Mandatory and Directory, 223, n. 1. 
 SEPARATE ITEMS OF TAX. 
 
 See Mandatory and Directory, 223. 
 SEPARATE PARCELS, 
 
 assessment to unknown owners: must be in, 110, n. 2. 
 unknown owners: joint assessment invalid, 110, n. 1. 
 to natural person or unknown owners: treated as, to unknown owners, 
 
 110, n. 1. 
 selling separately when assessed in gross does not cure, 110, n. la. 
 assessed jointly to known owners, held valid. 111. 
 later decisions the opposite, 111, 112. 
 conflicting decisions. 111, n. 1, 3. 
 
 when listing and valuation separate and tax joint, invalid, n. 2, 111. 
 when land only liability for tax, assessment must be in. 111. 
 Massachusetts, Maine, Wisconsin, California, Kansas, Nebraska, Illi- 
 nois, joint assessment invalid, n. 2, 2a, 3, HI. 
 Nevada: minority ruling same way, n. 111. 
 
 owned by different persons, must be assessed separately, 112, n. 3. 
 what are, and regarded as, 118, n. 2, 3. 
 tract occupied and used as, by same owner, 113, n. 3. 
 single lot in one inclosure, cannot be assessed in, n. 4, 118. 
 when building stands over dividing line of, 141, n. 4; 311, n. lo. 
 
INDEX. 615 
 
 SEPARATE FARCIELS— continued. 
 
 assessment for street improvements, must be in, 311, n. 1. 
 rule applies where same person owns adjoining lots, 311. 
 may be included in assessment to same owner; but taxed separately to 
 each. 
 
 See Swamp Land Districts (in California), 358, n. 1. 
 SEWEES, 
 
 objection, not laid witliin right of way. 
 
 See PisKSUMPTioNS and Estoppels, 206, n. 2. 
 two combined in one: injury must be shown, 206, n. 2. 
 assessments for : may be by valuation or front foot. 
 
 See Street Assessments, 307. 
 what property made liable for. 
 
 See Street Assessments, 320. 
 not confined to frontage, n. 2, 320. 
 Oregon : may first construct, afterwards apportion cost to property 
 
 benefited, 220, n. 3. 
 surveyor's fees: necessary part of expense, n. 4, 320. 
 unequal frontage if equally benefited, assessed same amount, 320, n. 5. 
 when plans and maps required: conditions precedent, 321, n. 1. 
 additional: when may be constructed under general plan, 321, n. 1, 2. 
 New York: sewer can be laid at property expense only in public street 
 
 322, n. 1. 
 assessment against all property benefited, 322, n. 2. 
 assessment not made as required : can be attacked whenever enforce- 
 ment attempted, 322, n. 3. 
 authority to construct, a usual and necessary power, 322. 
 notice of intention to construct, and of after-proceedings, 132, n. 4. 
 SHARES OR STOCK OF CORPORATIONS, 
 where and when assessable. 
 
 See Situs, 55. 
 how described for taxation. 
 
 See Description, 120, n. 5. 
 SHERIFF'S SALE, 
 
 property sold, to whom assessable pending redemption. 
 See Name or Owner, 68; 104, n. 2. 
 SHIPS AND VESSELS, 
 taxable at home port. 
 
 See Situs, 42, n. 1. 
 distance between, and place of registry, immaterial, 41, n. 2. 
 when residence of " husband " proper situs, 42, n. 4. 
 name and port: to be lettered on each vessel, 41. 
 enrollment: does not supplant registry, 42, n. 4. 
 unregistered: when not kept at domicile of owner, n. 3, 42. 
 when only temporarily within district, 43, n. 8. 
 SIDEWALK, 
 
 not included in notice for street improvements. 
 
 See Street Assessments, 285, 286. 
 SINGLE OWNER, 
 
 entitled to right of way for drainage, 330, n. 4. 
 
616 INDEX. 
 
 SITUS, 
 
 of property for taxable purposes, 30. 
 
 real: in county or district where situated, 30. 
 
 personal: in county or district of owner's domicile, 30. 
 
 may ha've situs apart from, 30, 45. 
 property of corporations : same rule except as varied by statute, 30; 
 
 46, n. 4; 47, n. 5, 6; 49. 
 all property: controlled by legislation, 30, n. 3. 
 
 vessels landing merely to discharge and receive passengers and f reight,30. 
 taxable at home port, 42, n. 1. 
 when at residence of " husband" of, 42, n. 4. 
 when not enrolled, registered, or licensed, n. 3, 42. 
 land." part in each of two counties or districts, 31. 
 statute may regulate for both real and personal property, 32, 51. 
 New Jersey: land of corporation, part in each of the towns, n. 1, 32. 
 personal property presumed to follow domicile of owner, 34. 
 exceptions, 34, n. 1. 
 when taxable apart from, 34, n. 2. 
 adheres to old domicile if assessment perfected before change to new, 
 
 35, n. 2. 
 a question of fact, as between two residences, 35; 37, n. 1. 
 
 See Assessor, 23. 
 for personal property: where owner liable to jury duty, n. 2, 37. 
 debts and credits: generally at residence of owner, n. 5, 39. 
 opposite view taken in New Jersey and Tennessee, n. 5, 39. 
 at place other than owner's residence, 40. 
 
 statute of Massachusetts, Illinois and Wisconsin construed, a. 1, 2, 4, 40. 
 where property sold and notes taken therefor, 40, 3. 
 property in transitu : no situs, 41. 
 
 while delayed awaiting transportation, 41. 
 while being moved, 41, n. 4. 
 in importer's warehouse, n. 1, 2, 41. 
 legal fiction: that personal property follows person of owner, 43. 
 
 not interposed against power of taxation, 43. 
 chattels and choses in action when severed from domicile of owner 
 
 may acquire other situs, 43. 
 property without the state has no situs for taxation within the state, 
 43, n. 2. 
 within the state includes only, having actual situs within, 
 n. 2, 43. 
 choses in action held by agent in another county subject to order, 
 
 44, n. 1. 
 solvent debts secured by mortgage in another county, 44, n. 2, 4, 45. 
 Oregon: statutory provision, 44, n. 3, 7. 
 
 when agent of non-resident not in possession of chose, 44, n. 4. 
 when in possession taxable to, 44. 
 of debts secured by mortgage out of the state, 44. 
 sovereignty that protects ought to tax, n. 5, 44. 
 choses in action : secured within, held or deposited without the state 
 
 or district, 45, n. 1,2. 
 judgment on foreclosed mortgage debt, n. 4, 45. 
 
INDEX. 617 
 
 SITUS — continued. 
 
 credits In hands of agent for collection and re-investment, n. 4, 45. 
 
 in two or more sovereignties or districts, 46, n. 3. 
 
 bonds and notes secured by mortgage in two or more sovereignties, 
 
 n. 3, 46. 
 corporations, where fixed in certificate, or act of incoi-poration, 48. 
 cars moved by agreement between owner and corporations owning 
 
 railways, 48, n. 2. 
 property used within while passing through state, 49, n. 5. 
 used in different counties, n. 1, 49. 
 
 actually situated in a county other than residence of owner, 
 n. 1, 49. 
 ocean cable wire: owned in one state, shore attachment in another, 50. 
 equitable rule for, of all personal property, 52. 
 
 California : how railroad property assessed and taxes distributed, n. a, 52. 
 inequitable rule based on residence of owner in Kansas, n. 6, 52. 
 general rules except as changed by legislation, 53. 
 shares of stock of national banks, 55, n. 5. 
 
 Pullman palace cars used by corporations under agreement of pur- 
 chase, 11. 7, 55. 
 - shares of stock, 56. 
 
 general rules for assessment of, 57. 
 SOLVENT DEBTS, 
 
 when and where assessable. See Situs, 44, 45, 46. 
 
 not taxable unless made so by organic or statutory law, 126, n. 2, 3. 
 
 how described, 126, n. 3. 
 
 "re-assurance resei-ve " and "premiums in course of collection" when 
 
 taxable, 1.34, n. 3. 
 In California may be raised above "face value." 
 
 See BoAKD op Equalization, n. 3. 153. 
 SPANISH AND MEXICAN LAND GRANTS, 
 
 when wet or overflowed may be included in swamp land districts, 340. 
 source of title does not control, 349, n. 1. 
 STATE BOARDS, 
 
 authorized to assess railroad and other corporations, n. 1, 162. 
 STATE BOARD OF EQUALIZATION, 
 equalize assessments of counties. 
 
 See BoAiiu op Equalization, 151, 152. 
 powers: only such as conferred, 153, n. 1. 
 may be authorized to make assessments, 162, n. 1. 
 STATUTORY REMEDY, 
 when restricted thereto. 
 
 See Private Cobpokation Assessments, 363, n. 3. 
 STAY OP PROCEEDINGS, 
 
 when tax declared illegal or void. 
 
 See Rb-assessmbnts, 197, n. 4. 
 STEAMBOAT, 
 
 temporarily anchored within county not assessable. See Situs, n. 4, 43. 
 STOCK, 
 
 or shares of corporation : when and to what extent assessable. 
 See Situs 57. 
 
618 INDEX. 
 
 STREET, 
 
 when, does not include sidewalk. 
 
 See Stkbet Assessments, 285, n. 1. 
 when, includes "roadway" only, 286, n. 3. 
 sewers. 
 
 See Street Assessments, 320, 323. 
 STREET ASSESSMENTS, 
 
 listing for, same principles apply as in general taxation. 
 
 See Name op Owneb, 65, 72, 73, 299. 
 New York: excessive and erroneous assessments: reviewable by the 
 courts. 
 
 See Valuation, 138. 
 equalization of 
 
 See BoAHD op Equalization, n. 1, 151. 
 equality and uniformity of, when burden divided according to benefits. 
 
 See Equality and XJniformitt, n. 3, 185. 
 re-assessments: doctrine of, applies to. 
 
 See Re-Assessments, 197 a. 
 authority for, found in general and special statutes, 275. 
 benefits, limited by, 275. 
 
 cannot exceed, 275. 
 
 all in excess, without due process of law, 275. 
 arbitrary estimate of, illegal, n. 3, 275. 
 constitution : when, restricts to, 275, n. 3. 
 Tennessee: assessments for, denied, n. 2, 275. 
 Ohio : assessments limited to, u. 3, 275. 
 
 true doctrine : not to exceed, 275. 
 — differ from general taxation, 275. 
 
 may be authorized upon property, benefited, 275, n. 1. 
 when authority exercised not reviewable, 275, u. 1. 
 petition, resolution, order or notice, initial step to acquire jurisdic- 
 tion, 276. 
 mode of acquiring jurisdiction, when may be providedliy ordinance, 276. 
 work must be described, 276. 
 resolution, order and notice: how served, 276. 
 substantially, if not strictly followed, 
 
 powers: when can not be delegated to committee, n. 1, 276. 
 modes of acquiring jurisdiction to make street improvements in San 
 
 Francisco, n. 1, 276. 
 special defenses to, must be pleaded, n. 1, 276. 
 character of work and material must be described in positive terms, 
 
 279; 284, n. 4, 6, 7. 
 must leave nothing open to oral proof nor to superintendent of 
 
 streets, 283. 
 San Francisco: petition and notice; what must contain, 279, n. 1. 
 
 notice not required to be signed by mayor, ii. 1, 279; 
 n. 4, 5, 282. 
 jurisdictional facts to be established, 279, n. 2. 
 whether majority signed petition, 280. 
 presumption: when indulged in favor of jurisdiction, 280. 
 statute construed : making delinquent list evidence, n. 2, 279. 
 
INDKX. 619 
 
 STREET ASSESSMENTS— continued. 
 
 how proceedings for, initiated, in San Francisco, 281. 
 
 repeal of statute after contract let does not afiEeot, 281. 
 
 California: additional acts to obtain jurisdiction to let street work 
 
 under new constitution, 282. 
 selection of material cannot be delegated to city civil engineer, 282, 
 
 n. 6, 7. 
 Intention to do the work must be stated in positive terms, 282, n. 4. 
 when surveys and estimates made necessary, 282. 
 
 all acts for information of owners and bidders are mandatory, 285, n. 5. 
 jurisdictional acts to be done in order set forth, n. 5, 282. 
 each constitutes a condition precedent, n. 5, 282. 
 "where necessary," indefinite description of locality, 283, n. 2, 3, 4. 
 "excepting such portions as already done in a suitable manner," 
 
 283, n. 5, 301 n. 1. 
 order: when work done under, how described, 283, n. 6. 
 more than one item of work may be included, 284, a. 2, 3. 
 one street designated by two names, d. 1, 284. 
 resolution or notice: must include all work, 283. 
 necessarily incidental: included, 285. 
 street does not include sidewalk, 285, n. 1. 
 
 sidewalk: not to be included in notice for street work, 285, n. 1 : 286. 
 gutter: when necessary, part of construction of sidewalk, n. 1, 285. 
 including unauthorized items unless severable; illegal, 286, n. 3. 
 when severable held illegal, 286, n. 4. 
 Wisconsin: must tender for authorized items, 286, n. 5. 
 Kew York: where work " has been unlawfully increased," reduction 
 
 may be had, 286, n. 6. 
 publication of resolution or notice must appear of record, 287, 288. 
 certificate of publication : when first and last day required stating first 
 
 day only, and excepting Sundays and holidays, 287, n. 2, 3. 
 mode of making and securing proof, 288. 
 affidavit: of printer or foreman primaiy evidence, n. 1, 288. 
 recitals in record of publication: not sufacient, n. 1, 288. 
 when jurisdiction over work attaches, 289, n. 1. 
 work for public improvements must be open to competition, 290. 
 aggrieved party only may claim deductions, 290. 
 one contract: must embrace all work in resolution, 290. 
 
 leaving out, portion, would change proposition, without 
 notice, 290, n, 3a. 
 after notice council cannot omit portion, n. 3a, 290. 
 California: when work restricted to " between curb and rails," 3a, 290. 
 bids : usually received and examined by a committee, 290. 
 province of common council to determine lowest bidder and award 
 
 contract, 290, n. 5. 
 must be in writing signed by mayor or committee and filed, 290, n. 4, 5. 
 acceptance of work by common council or authorized officer, 291. 
 objections to, or equalization, except for fraud, only remedy, 291; 
 
 312, n. 1; 313. 
 three opportunities for objections under charter of St. Paul, 313. 
 same rules of equality and uniformity required as in general taxation, 
 
 291a. 
 
620 INDEX. 
 
 STREET ASSESSMENTS— continuetZ. 
 
 work must be completed within contract time, 294. 
 extending time, 294, n. 3. 
 completion after time, 294, n. 1, 3. 
 Indiana, Missouri; no defense, 294, n. 4. 
 
 work may be re-let after failure to commence or complete, 294, n. 5. 
 when material prescribed, must be used, 295. 
 change of after contract renders assessment illegal, 295. 
 when work to be done by contract, assessment for day's work in- 
 valid, 296. 
 "work in progress" excepted from statute construed, n. 2, 296. 
 boundaries of district to be taxed: must be defined, 297, n. 1. 
 freeholders of municipality: not competent to define district, n. 2, 297. 
 residents of district not competent to act as jurors in assessing dam- 
 ages, n. 2, 296. 
 work cannot be assessed for in detachments, 298, n. 1. 
 must all be first completed, 298, n. 2. 
 
 name and description mvist be as in ordinaiy taxation, 299. 
 to name of a deceased person: illegal, 299, n. 1. 
 misnomer: makes assessment invalid, 299, n. 2. 
 
 error in description : makes judgment voidable hy appeal only, 299, n. 2. 
 judicial notice: when unaided by statute, 300, n. 1, 2. 
 California: rule as to map or plat of San Francisco, 300, n. 3. 
 excepting work already done: in general terms, 301, n. 1. 
 abstracts of title advertising or engineering: items of expense of local 
 
 improvements, 302, n. 1. 
 
 although engineer be s.alaried officer, 302, n. 1, n. 2; n. 2, 314; n. 4, 320. 
 
 New York: halfthe value of the property: when expense limited to, 303. 
 
 limitation applies to each improvement, 303. 
 
 burden of proof: to show expense less than half, 303, n. 2. 
 
 block: when never valued as separate lots not assessable, 
 
 303, n. 3. 
 frontage when only, made liable: confined to depth of 
 
 lots, 303. 
 when assessments contain illegal items : these only enjoined, 
 
 303, n. 4. 
 enforced only under statutory provisions, n. 2, 303. 
 void and illegal, 197, 230. 
 
 liow affected by curative and re-assessment acts, 304, n. 1. 
 mode of making by front foot, acre, or other subdivision in proportion 
 
 to benefits, 307. 
 cash valuation : sometimes adopted, 307. 
 
 when damages as well as benefits must be shown to have been estim- 
 ated, 307, 11. 1. 
 Oregon: how assessment for sewer made under charter of Portland, 
 
 807, n. 2. 
 Washington T. : "assessment" construed, 307, n. 3. 
 Minnesota: rule prescribed for making, 307, n. 4. 
 when discretionary, whether general or local tax, discretion not re- 
 viewable, 308. 
 nor when partly local and partly general tax, 308. 
 
INDEX. 621 
 
 STREET ASSESSMENTS— con«inue(J. 
 
 when exercised for special tax presumption of benefits, 309, n. 1, 2. 
 assessment of frontage without regard to benefits, 309, n. 3. 
 exceeding actual benefits unconstitutional, n. 4, 309. 
 presumption of benefits to extent of cost: when not Indulged, n. 4, 309, 
 .^.-- liability: personal, or lien, or both, 310, ii. 1. 
 California: property liability only, 310, n. 3, 4. 
 Illinois: where construed property liability only, 310, n. 8. 
 Missouri: property liability only, 310, n. 10. 
 
 Washington T. : power to make charge personal, doubted, 310, n. lOJ. 
 property liability only, 310, n. 12. 
 constitutional and statutory law: determines, 310. 
 separate parcels must be separately assessed, 311, n. 1. 
 rule applies where same person owns adjoining lots, 311. 
 dividing line of two lots covered by building: how to be assessed, 311. 
 abandoned, and new contract : assessment separate for work done under 
 
 each, 311, n. 2. 
 property not benefited not liable to assessment, 311a, n. 1. 
 when equalization provided for, exclusive remedy for grievances, 
 
 n. 1, 312. 
 when not provided for: courts may grant relief, 312. 
 remedies against illegal, not of equitable cognizance, 315, n. 1, 2. 
 
 exceptions, 31.5, n. 4. 
 action to correct irregularities and errors does not lie, 315, n. 3. 
 assessments: seeker after equity, must offer to do equity, 315, n. 3. 
 legislature may prevent assessments being set aside, 316. 
 increased cost over contract when collection of may be enjoined, 317. 
 inducing contractor to complete contract or accepting benefit under, 
 
 creates estoppel, 318. 
 voting for special tax as member of a board creates estoppel, 318, n. la. 
 signers of petition estopped from showing they are less than majority, 
 
 n. 2, 318. 
 Iowa, Maryland, New York and Pennsylvania, opposite view taken, 
 
 318, n. 2. 
 general rule of estoppel: " conduct intended to induce another to act," 
 
 &c., n. 2, 318. 
 when notice necessary to state time and place of meeting: holding 
 
 meeting elsewhere, 319, n. 1. 
 sewers: what property made liable for construction of, 320. 
 
 Oregon: uiider charter of Portland may first construct; after- 
 wards apportion cost to property benefited, 320, n. 3. 
 surveyor's fees: necessary part of expense of, n. 4, 320. 
 additional, when may be constructed under general plan, 321, 
 
 n. 1, 2. 
 can only be laid in public streets, 322, n. 1. 
 laid along more than one street: one assessment must include 
 all property benefited, 322, n. 2. 
 where no equalization provided for, same objections as defense to 
 
 assessment, 322, n. 3. 
 actual expense apportioned by front foot: generally a reasonable ap- 
 portionment of benefits, n. 1, 323. 
 liens: priority of, 324, n. 1, 2. 
 
622 INDEX. 
 
 STREET RAILWAYS, 
 
 subject to assessment as real estate, 200, n. 1. 
 when laid on street or highway same rule, 200, n. 2. 
 SUKETIES, 
 
 on official bond of assessor, liable for omissions and error. 
 See Assessor, 24. 
 SURVEYS AND ESTIMATES, 
 
 when necessary in street improvements. 
 
 See Street Impbovements, 282. 
 SURVEYS AND MAPS. 
 
 when necessary to construction of sewers at expense of private prop- 
 erty. 
 
 See Street Assessments, 321. 
 SURVEYS AND SUBDIVISIONS, 
 may be used in making assessments. 
 
 See Description^, h. 3, 80. 
 SURVEYOR'S FEES, 
 
 necessary part of expense of sewers. 
 
 See Street Assessments, 314, n. 3; n. 4, 320. 
 SWAMP LAND DISTRICTS (in California). 
 petition for organization: initial proceedings, 341. 
 
 must describe land by legal subdivisions or boundaries, 341. 
 must state quantity of unsold land, 341; n. 1, 342. 
 must be verified by one of petitioners, 341. 
 form, n. 1, 342. 
 
 corporation may be signer, n. 1, 342. 
 schedule annexed may be referred to, n. 1, 342. 
 published four weeks next preceding hearing, 341. 
 week construed to mean " seven consecutive days," 343. 
 jurisdiction in county containing majority of acres, 341, n. 1, 3; 342. 
 
 acquired by publication of petition, .343. 
 affidavit of publication, filed with petition, 341, n. 1. 
 intervals in publication exceeding seven days vitiates assessment, 343. 
 different view in other states of similar " Intervals," n. ;i, 343. 
 after organization, notice of subsequent proceedings not necessary, 
 
 n. 3, 343. 
 assessments of, enforced by legal process, n. 3, 343. 
 
 defenses unlimited, except matters determined, hearing peti- 
 tion, 343, n. 2a. t 
 except amount of benefits, n. 2, 343, 355. 
 if benefits not proportioned to charges, a defense, n. 3, 343. 
 proceedings under, are due process of law, 345, n. 3; n. 1, 350; 351, n. 2. 
 hearing: approval and recording petition, 344. 
 that no land improperly omitted, or included determined by approval, 
 
 344, 357. 
 opposition to, may be made by any one interested, 343, n. 3. 
 approval noted on petition, 344. 
 recorded in each county containing lands, 344. 
 copy forwarded to state register, 344. 
 character of land determined on hearing, 344, n. 2. 
 after approval whether lands wet or dry not issuable, 342, n. 2; 355. 
 are public coi'porations, 345. 
 
INDEX. 623 
 
 SWAMP AND DISTRICT LANDS (in California)— conKreued. 
 their powers, 345, n. 4. 
 
 new district may be formed out of one already organized, 346, 
 facts necessary to, in petition therefor, 346. 
 jurisdiction not acquired unless necessary facts in petition, 
 346, n. 1. 
 by-laws: after organization, petitioners may make, 347. 
 majority of petitioners must sign, 347. 
 to be recorded, 347. 
 trustees: three elected by petitioners, 347. 
 
 their powers to survey, plan, locate and estimate cost of recla- 
 mation works, 347, 353. 
 to construct, maintain and keep same in repair, 347. 
 three commissioners appointed to make assessments proportionate to 
 
 expense and to benefits, 347, 353. 
 must jointly view and assess, 354. 
 not required to go " upon each and every acre," 354. 
 viewing separately and assessing jointly, not sufficient, 354, n. 3. 
 certificate not conclusive, 354, n. 4. 
 qualifications of petitioners and voters, 348. 
 non-signers allowed no vote, 348. 
 " other evidences of title: " construed, 348, n. 3. 
 owners of majority of acreage may exclude minority from all manage- 
 ment, 348. 
 Spanish and American land grants, when wet or overflowed, may be 
 
 included, 349, n. 1. 
 powers, authorizing reclamation, not unconstitutional, 350, 351, 352. 
 property taken by taxation and eminent domain, distinction, n. 2, 350. 
 power: exercised in other states, irrespective of source of title, 352. 
 
 to promote health and public good, 352, n. 2. 
 Arkansas: act of congress donating swamp and overflowed lands for 
 
 reclamation, 352. 
 North Carolina: act of 1795 for draining low lands, 352. 
 right of trial by jury, has no reference to enforcement of a tax or 
 
 assessment, 351. 
 equality and uniformity of taxation does not a]>ply to assessments for 
 
 local purposes, 351, n. 3. 
 cost distributed in proportion to benefits sufficient, 351. 
 assessments must be made according to benefits, 353. 
 cost and expenses cannot be apportioned regardless of benefits, 3.53. 
 
 not by authority of statutes, 353. 
 expenses T)rior to organization cannot be included in levy, n. 5, 353. 
 when curative act cannot validate illegal assessment, 353, n. 4. 
 benefits not equal to assessments not a defense, 3.55. 
 
 may be greater to lands in one part of district than to another, 
 
 357, n. 1. 
 each tract to be assessed in proportion to, 357. 
 legislative declaration is that all lands will be, 357. 
 assessment: cannot be impeached in collateral proceeding, except for 
 fraud, 355. 
 in district organized prior to 1868, cannot be made under code, 
 356, n. 1. 
 
624 INDEX. 
 
 SWAMP AND DISTEICT LANDS (in Califoritia)— continued, 
 assessment : proceedings must be under statute, 356, n. 1. 
 all land within district must be assessed with uniformity, 357. 
 no lands can be exempted, 357, n. 2. 
 tract receiving no benefit from reclamation works, need not be assessed, 
 
 n. 2, 357. 
 separate tracts may be included to same owner, .358. 
 tax must be charged separately to each, 358, u. 1. 
 treated as one assessment in suit to enforce lien, 358, n. 2. 
 
 liability against the property only, n. 1, 358. 
 additional or new assessments may be made, 359. ' 
 work done and to be done, may be Included in second assessment, 359, 
 
 360. 
 two assessments for same improvement may be enforced in one suit, 
 
 360, n. 2. 
 
 action of supervisors on petition for assessment, not reviewable, 
 
 361, n. 1. 
 
 estoppel : matters required to be stated in petition as to all lands in- 
 cluded, 362. 
 also as to persons not signing, 362. 
 jurisdictional facts found upon organization of district; not open to 
 collateral attack, 362, n. 3. 
 
 T. 
 
 TAX, 
 
 and assessments, defined, 1. 
 distinction between, 1. 
 not a debt, n. 1, 2, 6, § 1. 
 may be levied for a local improvement, n. 4, 1. 
 on shares of national banks, n. 1, 55. 
 assessments differ from " taxation." 
 
 See Street Assessments, 275. , 
 TAX DEED, 
 
 how far may be made conclusive evidence. 
 See Defective Assessments and Curative Acts, n. 2, 232. 
 TAX LISTS, 
 
 tax-payers furnished with. 
 
 See Assessment Lists, 4. 
 contain classifications of personal property, 4, 120. 
 omission or refusal to return, 4. 
 TAX DISTRICT, 
 
 See Assessment District, n. 1, 297; n. 2, 297. 
 TAX LIEN, 
 
 title deraigned under junior, prevails. 
 
 See Street Assessments, 324. 
 TAX-PATERS, 
 
 required to fill up and verify lists. 
 
 See Assessments, 4. 
 TELEGRAPH LINES AND PROPERTY, 
 when extending beyond the state. 
 
 See Situs, 50. 
 ocean cable wire : owned in one state, shore attachment in another, 50. 
 
INDEX. 625 
 
 TENANT, 
 
 when assessment to inhabitant or occupant made to. 
 See Namb of Owneb, 69, n. 3. 
 TENANTS IN COMMON, 
 to be assessed separately. 
 
 See Separate Pabcels, 112, n. 2. 
 TENEMENTS, 
 
 in stories over same foundation: how to bo assessed. 
 See DESCRiPTioif, 91. 
 TENNESSEE, 
 
 ruling in, that assessment of all property and shares of corporation, 
 not double taxation. 
 
 See Valuation, n. 6, 133. 
 local assessments for benefits, denied. 
 
 See Street Assessments, n. 2, 275. 
 TEST, 
 
 whether acts mandatory or directory. 
 
 See Mandatory and Directobt, 221. 
 whether defects or omissions in assessments are curable by after-legis- 
 lation. 
 
 See Defective Assessments and Cukative Acts, 230, n. 6. 
 of constitutionality of law, n. 2, 252. 
 TIME, 
 
 assessments relate to date of closing roll. 
 
 See Assessor, n. 1, 22. 
 in some states : with reference to ownership on a specified day in year, 
 
 n. 1, 7; n. 2, 35. 
 a 30 days' notice by five publications, means after all have been given, 
 
 n. 4, 221. 
 computation of, between acts, 221, n. 5. 
 
 four we^ks previous to sale means 28 days prior to sale, n. 5, 221. 
 assessment after time expired, invalid, 224. 
 Nebraska assessment roll returned after time expired, held valid, 
 
 n. 2, 224. 
 when retroactive legislation takes effect. 
 
 See Defective Assessments and Cubative Acts, 233. 
 failure to complete work within. 
 
 See Street Assessments, 294, n. 1, 3, 4, 6. 
 acts which are mandatory, must be done within. 
 
 See Mandatory and Dirbctoet, 319. 
 acts which are directory may be done afterwards, 319. 
 drainage corporation takes effect from filing articles of incorporation. 
 
 See Drainage Assessments, 332. 
 when drainage assessment filed : not material. 
 
 See Drainage Assessments, 335. 
 swamp land districts (in Califprnta), "after approval of the petition," 
 
 347. • 
 
 Private corporations organized; after filing articles of incorporation 
 when under general laws. 
 
 See Private Corporation Assessments, 309. 
 consolidation of corporations: same rule, 369. 
 •iO 
 
626 INDEX. 
 
 TOLL BSIDGE, 
 
 statute may direct assessment of, out of district where located. 
 See Situs, n. 1, 51. 
 TOira'AGE DUTY: TONNAGE LEVEE DUES, 
 cannot be levied, neither on vessel or crew. 
 See Situs, n. 3, 41. 
 TOWNSHIP ASSESSMENT FOE PUBLIC KOAD, 
 when joint against township. 
 
 See Separate Parcels, n. 26, 111. 
 TOWNSHIP EANGE AND SECTION, 
 in descriptions of real estate. 
 
 See Real Estate, n. 3, 80. 
 TOWN SITES, 
 
 assessments to pay for lots must be separately assessed, n. 2a, 111. 
 TRIAL BY JURY, 
 
 not applicable to proceedings for collection of taxes. 
 See Due Pbocess of Law, n. 7, 250. 
 right to, does not attach to assessment proceedings. 
 See Drainage Assessments, 338, n. 1. 
 
 Swamp Land Districts (in California), 351. 
 TRUE CASH VALUE 
 
 and "cash value," synonymous terms. 
 
 See Mandatory and Directory, n. 3, 224. 
 TRUSTEE. 
 
 when assessable and when not. 
 
 See Situs, n. 1, 44. 
 
 Name of Owner, 67, n. 1. 
 executor: when title held for life of beneficiary, n. 1, 67. 
 assessor not chargeable with constructive notice of trust, 67, n. 2. : 
 subject to taxation when conveyance in fee followed with declaration 
 of trust, n. 3, 07. 
 TURNPIKE ROAD, 
 
 power of legislature to authorize construction at expense of contiguous 
 property. 
 
 See Street Assessments, 323. 
 TWO OR MORE COUNTIES, 
 
 property used and extending through: rules in some states. 
 See Situs, 50. 
 TWO ASSESSMENTS, 
 
 may be enforced in one suit. 
 
 See Swamp Land Districts (in California), n. 1, 360, 361. 
 must be for same improvement, 360, n. 2. 
 TWO RESIDENCES, 
 
 person may have. See Situs, 37. 38. 
 
 u. 
 
 UNCERTAINTY, 
 
 adding " and others " to name of owner used as land boundary. 
 
 See Real Estate, n. 3, 80. 
 nothing showing what figures represent. 
 
 See Mandatory and Directory, n. 1, 225. 
 
INDEX. 627 
 
 VSCERTXISTY— continued. 
 
 stating number of acres only in subdivision. 
 
 See Dbainage Assessments, n. 3, 335. 
 writing a number of acres in column opposite two subdivisions, n. 3, 335. 
 UNDIVIDED INTERESTS, 
 
 whether equal or unequal, to be assessed to owners in severalty. 
 See Sepaeate Pakcels, 112, n. 2, 4. 
 UNEQUAL DEPTH, 
 
 frontage, if equally benefited assessed same amount, 320, n. 5. 
 UNIFORMITY ANDvEQUALITY. 
 
 See Equality and Uniformity, 185, n. 2. 
 Presumptions and Estoppels, 267. 
 Street Assessments, 291. 
 Drainage Assessments, 340. 
 Swamp Land Districts (in California), 357. 
 U. S. BONDS AND TREASURY NOTES. 
 
 See Exemption from Taxation, 171, n. 1, 2; 172, 174. 
 UNKNOWN OWNERS, 
 
 assessment to, when name of owner not known. 
 See Name of Owner, 60, 65. 
 when to owner if known, if unknown to occupant, no option, 69. 
 absent owner: when unknown, 70. 
 
 to owners "known and unknown, and claimants known and un- 
 known," invalid, 70. 
 to unknown owners when doubts as to ownership, 72, n. 1, 2. 
 assessments to, conclusive of want of knowledge, 73. 
 when owner in fact known, remedy against assessor, 73, n. 1. 
 seated and unseated, resident or occupied, and non-resident and un- 
 occupied lands, how assessed, 73, n. 3. 
 assessments to, erroneously and falsely made, n. 3, 73, 
 joint assessment to, of separate parcels, invalid, n. 1, 110. 
 to an owner or unknown owners, 110, n. 1. 
 selling separately when assessed in gross, 110, n. la. 
 must be listed, valued and tax extended separately to, 110, n. 2. 
 Iowa: assessments to, advertised and sold in sections, n. 3, 113. 
 petition for swamp land district: to be scheduled to, when owners not 
 known, 341. 
 UNLIQUIDATED DEMAND, 
 
 not taxable. See Personal Property, n. 5, 126. 
 UNOCCUPIED LANDS, 
 
 how listed. See Name of Owner, n. 2, 69. 
 UNPAID TAX, 
 
 of previous year: when board of equalization may add without notice. 
 See Board of Equalization, 157. 
 
 V. 
 
 VACANCIES, 
 
 in committee or boards of assessors. 
 
 See Presumptions and Estoppels, 206, n. 1, 
 VACATING ASSESSMENTS, 
 after payment of tax. 
 
 See Amending and Reviewing Assessments, 194. 
 
628 INDEX. 
 
 VALIDITY OF ASSESSMENTS 
 can always be tested, 
 
 See Amending and Reviewing Assessments, 193. 
 before judgment: if enforceable by suit, 193. 
 in suit for possession : if sold for delinquency, 193. 
 VALUES, 
 
 fixed by officers authorized to assess and equalize : 10, n a. 
 when required to be in separate columns, n. 2, 111. 
 how ascertained for taxation, 130. n. 4. 
 
 "actual value" and "cash value" defined, 130, n. 5; 135, n. 2. 
 test of, 130, 136, n. 2. 
 
 process of arriving at, not of legal inquiry, 130. 
 "par" defined, 135, n. 2. 
 items of, when need not be stated, n. 5, 131. 
 ascertained from purchases and sales, ISO, n. 4. 
 income property yields, no criterion, n. 4, 136. 
 assessment at one third of, illegal, n. 1, 136. 
 piu'chases and sales : evidence of value. 139, n. 2. 
 VALUATION, 
 
 when values required to lists of each article or class separately. 
 
 See Assessments, 4. 
 statute requiring lists be received as true valuation construed, n. 2, 4. 
 to be official act of assessor, n. 4, 130. 
 railroads and telegraph lines : extending beyond yie state, 50. 
 
 franchise when taxable, how valued, 123, n. 3. 
 
 legislature may direct mode of : applying doctrine of averages, 152, n. 4. 
 
 test of values. See Values, 130, 136, n. 2. 
 
 "actual value " and "cash value" defined, 130, n. 5; 135, n. 2. 
 
 process of, not subject of legal inquiry, 130, n. 6. 
 
 no system of, provided by law, 130. 
 
 left to judgment of officei-, 130, n. 6. 
 
 excessive and contrary to officer's judgment, n. 4, 130, 136, n. 3. 
 
 cannot be impeached in collateral proceeding, n. 6, 130. 
 
 nor after sale for delinquency, n. 6, 130. 
 
 of capital stock, shares and property, 131. 
 
 provisions for, or exemption from taxation become a vested right, 
 131, ii. 1. 
 
 items of values entering into, need not be stated, n. 5, 131, 
 
 methods of, of corporations, 134. 
 
 California, 134, n. 1. 
 Illinois, 134, n. 2. 
 
 of stock when above or below par value, 135, n. 2. 
 
 when assessment of capital stock at a fixed price, 135, n. 3. 
 
 general rule for, 136. 
 
 California: rule of Political Code, n. 2, 136. 
 
 made on basis of one third of value, illegal : deed deraigned through 
 such assessment, invalid, n. 1, 136. 
 
 according to fixed rules of location, when to be on view, illegal, n. 5, 136. 
 
 free from fraud; valuation not reviewable by courts, 137, n. 1, 3. 
 
 excessive, made to impose unequal proportion of tax, n. 2, 137. 
 
 reviewable only by board of equalization, 137, n. 1. 
 by courts, for fraud, 137, n. 2. 
 
INDEX. 629 
 
 VALUATIOK— continued. 
 
 reviewable not for error in principle of, 138. 
 
 nor for error in judgment, 138, n. 1, 2. 
 New York: excessive in street assessments: when reviewable, 138, n. 5. 
 part illegal — the whole, how affected, 138, n. 5, 6. 
 raising prices after letting street work, n. 7, 138. 
 California: paying tax and suing to recover excess of, n. 8, 138. 
 Vermont: listers agreeing and acting on fixed average values, n. 3, 138. 
 errors of, incidental or made bona fide, n. 3, 138. 
 when possessory right, should show, 139, n. 1. 
 exempt in part, remainder only valued, 140. 
 when a building, how apportioned to ground, n. 1, 140. 
 separate stories owned in severalty, 140, n. 2, 3. 
 separate parcels of real estate assessed to same owner, 140, n. 1. 
 personal property must be valued separately from real, 140, n. 1, 2. 
 
 when in distinct classes, each separately, 140, n. 1. 
 when personal property in different classes, must be separately valued, 
 
 141, n. 1. 
 Nevada: joint, of real property held valid, 140, n. 2. 
 California: gross, of separate classes of personalty, n. 3, 141. 
 same doctrine applied to separate parcels of realty, n. 3, 141. 
 of railroads, 141, n. 2, 3. 
 uniformity in mode of making, necessary to equality. 
 
 See Equality and Unifobmity, 186, n. 1, 2. 
 in making re-assessments: must have reference to date of original. 
 See Ee-assessments, 197, n. 1. 
 
 VESTED EIGHTS, 
 
 none in defenses based on informalities. 
 See Defective Assessments and Curative Acts, n. 5, 230. 
 and equities: cannot be devested, n. 5, 230. 
 
 to require local improvements to be made, when petitioners are ma- 
 jority. 
 
 VESSELS, 
 
 See Ships and Vessels, 42, n. 1. 
 
 VEKIFICATION, 
 to assessment list. 
 
 See Assessments, 5. 
 
 VEEMONT, 
 
 listers agreeing and acting on fixed value of averages, n. 3, 138, 
 
 VOID, 
 
 See Name of Owner, 70, n. 4. 
 Ee-assessments, 197a. 
 tax adjudged void and collection enjoined, no objection to re-assess- 
 ment, 197&, n. 1; n. 1, 304. 
 assessment cannot be legalized so as to sell, 
 land assessed, 
 See Defective Assessments and Curative Acts, n. 2, 231. 
 Minnesota: re-assessment when declared void for any cause, 305, n. 1. 
 
630 INDEX. 
 
 w. 
 
 WAREHOUSEMAN', 
 
 must furnish names and description of property. 
 See Names of Ownkb, n. 8, 61. 
 WEEK, 
 
 construed to mean " seven consecutive days." 
 
 See Swamp Land Districts (in California), 343. 
 publication once a week must be once in each 7 consecutive days, 343. 
 
 intervals more than 7 days, illegal, 343. 
 difEerent view in other states, n. 2, .343. 
 WET, 
 
 or overflowed lands to be included witliin swamp land districts, without 
 regard to source of title. 
 
 See Swamp Land Distbicts (in California), 349, n. 1. 
 whether or not, wet or dry, no defense to assessment, 355. 
 WIDOWS, 
 
 retain deceased husband's domicile till another is acquired, 38, n. 66. 
 Indiana: exemption of $500 from taxation, unconstitutional, n. 5, 167. 
 WIFE, 
 
 land of, cannot be assessed to husband. 
 
 See Name of Owneb, 60, n. 8. 
 not when husband and wife living on land, 63. 
 
 contra: when assessable to owner or occupant in absence of actual 
 knowledge, 63, n. 4. 
 WISCONSIN, 
 
 joint assessments of separate parcels, invalid. 
 
 See Separate Pakcels, n. 2, 111. 
 assessments of Madison^ n. 1, 197a. 
 
 statutes providing for re-assessments in counties, cities and towns, 
 n. 1, 2, 197a. 
 WITHOUT NOTICE, 
 
 taxes of previous year may be added. 
 
 See BoABD of Equalization, 157. 
 subsequent proceedings after organization of swamp land district. 
 See Swamp Land Distbicts (in California), n. 3, 343. 
 WRONG COUNTT, 
 
 when assessment in, not necessary to appeal to board of equalization 
 before enjoining. 
 
 See Situs, n. 3, 45. 
 
INDEX TO APPENDIX. 631 
 
 INDEX TO APPENDIX. 
 
 BUEDEN OF PROOF, 
 
 that lands assessed are separate parcels, n. 1, 384. 
 
 DESCRIPTION, 
 
 statutory rule in Wisconsin, 38C. 
 
 certainty between grantor and grantee, sufficient, n. 1, 380. 
 
 DUE PROCESS OF LAW, 
 
 right to appear before board, constitutes, n. 1, 381. 
 
 EQUALITY AND UNIFORMITY, 
 
 not violated by classifying property for assessment, 382. 
 deductions allowed in general taxation cannot be denied in municipal, 
 382. 
 
 EQUALIZATION, 
 
 when notice not required, 381. 
 
 doctrine generally applied to assessments by state boards, 381. 
 
 EQUITABLE DOCTRINE OF SITUS, 
 
 place where property located regardless of owner's domicile, 385. 
 statutory rule in Michigan, 385, n. 2. 
 
 EXEMPTION FROM TAXATION, 
 facts creating, must be shown, 383. 
 
 FORMER ADJUDICATION OF EXEMPTION, 
 not available to a future tax, 383. 
 continuing exemption, by non-payment of survey fees, 383, n. 1. 
 
 FOURTEENTH AMENDMENT, 
 
 classifying property for assessment no violation of, n. 1, 381. 
 
 PRESUMPTION, 
 
 where two or more adjoining blocks assessed in gross, 384. 
 
 IN TRANSITU, 
 
 when property is and is not, 386, n. 1. 
 
 VALUATION, 
 
 when test is, value at private sale, and valuation is " at a quick sale," 
 387, n. 1.