Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14. >893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAW OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 685.T2B63 1889 A practical treatise on the power to sei 3 1924 018 781 868 a Cornell University J Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018781868 PRACTICAL TREATISE ON THE POWER TO SELL LAND FOB THE NON-PAYMENT OF TAXES. BY ROBERT S. BLACKWELL. FIFTH EDITIOX, BXVISED ANU BEABBANGED, AND GBEATLY ENLABOED, By frank parsons. Vol. I. BOSTON: LITTLE, BROWN, AND COMPANY. 1889. y//i^/Ca.h Entered according to Act of Congress, in the year 1864, by LITTLE, BKOWH, AHD COMPASY, In the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1869, by LITTLE, BROWM, AND COMPANY, In the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in. the year 1875, by LITTLE, BROWN, AND COMPANY, In the Office of the Librarian of Congress, at Washington. Copyright, 1889, By Little, Brown, and Compant. University Press: John Wilson and Son, Cambridoe. PREFACE TO THE FIFTH EDITION. The great number of valuable cases asking admittance necessitated an enlargement of the premises, and the pres- ent edition appears in two volumes, with matter and cita- tions nearly double those of the last issue. The text has been broken up into convenient, distinctly marked sections, and the old notes, with their scattered, disintegrated wealth, have been digested and incorporated with the text. The Index has been almost wholly rewritten, with a view to making it as analytic and exhaustive as possible. The first sec- tion of each chapter has been so composed as to present a bird's-eye view of the subject of the chapter, a complete but very brief statement of the law of the topic, with a refer- ence attaclied to each clause or element of the r^sum^ in- dicating the section in whicli may be found its development. Great care has been taken in writing these leading sections to make them, not mere indices of the chapter's contents, such as may be found in fine print at the chapter heads in many books, hut full and responsible statements of the law, so that the thought of the whole chapter is revealed in its summary. The changes just mentioned, together with the fact that the sections have been xiivided into families or groups, the beginning of each group marked by a black-let- ter heading, and the first paragraph after each black head- line made to contain the substance of all that intervenes IV PEEPACE. between its own and the next black section-heading, render it possible to grasp at a glance the contents of a section or group of sections lying between two black-letter heads, to perceive in a few moments the meaning of a hundred pages, and in an hour or two to pass over the whole law of tax titles, as one might travel over a continent if he could step from mountain peak to mountain peak and treM but on the summits. The book is an expaiision of its first chapter, each chapter is an expansion of its first section, each section or group of sections is an expansion of its first paragraph, and the index is an alphabetical analysis of the whole. A judicious use of these four keys will enable the reader to secure with the least possible effort the treasures locked in the lids of these volumes. FRANK PARSONS. Boston, January, 1889. INTRODUCTION. The subject of the following work is a matter of control- ling importance to the landed interests of the United States, inasmuch as it relates to an extraordinary power which is annually exercised over estates, and which, when well exe- cuted, works a complete divestiture of the title against the will of the owner, and oftentimes without his knowledge. This power has been exercised by all the States since their admission into the Union ; and it has on several occasions been resorted to by the Federal government. A very large number of cases involving the validity of titles, having their origin in this power, have been adjudicated by the Federal and State tribunals. The principles of law which relate to powers of this character are calculated to enlist the atten- tion of every lawyer, and in the new States especially are in constant application in the regular course of his practice. Notwithstanding the importance of the law upon this subject, no separate treatise has been devoted to its investigation. Kent, in his Commentaries, has paid no attention to the sub- ject, and Mr. Hilliard, in his work on Real Property, dis- misses it quite summarily ; in fact, no general treatise upon American law deigns to treat it upon principle. The annual digests of American decisions have not even assigned to it a separate title, and the reporters seem at a loss to know under what head they shall refer to it in their indices. The de- cisions of our courts upon the subject — numbering up- wards of one thousand — are scattered throughout the pages of seven or eight hundred volumes of the American reports. Vi INTRODUCTION. and are thus inaccessible to the mass of the profession. A work which shall present the principles relating to the exe- cution of this class of powers, as illustrated by the numerous decisions of the courts, is therefore much needed, and the importance of the subject justifies its publication. The atten- tion of the author has been directed to this matter, by his employment in a number of tax-title causes before the Supreme and Circuit Courts of Illinois, and the Circuit Court of the United States; and the difficulties under which He labored in the prosecution of his studies upon this branch of the law, and in the preparation of his briefs and arguments, suggested the idea that a separate treatise upon this subject would be well received by the profession at large. He ac- cordingly named tlie matter to a friend, — an eminent lawyer of great experience, and perfectly familiar ,with the subject, even to its minutest details, — who not only cordially ap- proved of the project, but promised to render every assistance in his power. The author, remembering the remark of Lord Coke, that some addition to the general stock of learning is "a debt which every man owes to his profession," cheerfully undertook the task, prosecuted it at such periods of leisure as occurred in the course of his engagements at the bar, and now submits it to public criticism. The author does not claim for himself originality in the execution of the work, either as to the ideas advanced, or even the language em- ployed to express them. He has endeavored to present the principles which eminent judges and lawyers have laid down for the control of officers engaged in the execution of this class of powers, and when they themselves were clear in the mode of expression, he has not hesitated to adopt their language. The plan of the work embraces the entire field of litiga- tion upon the subject. The subject is arranged in the most natural manner which suggested itself to the mind of the author ; the authorities upon which lie has relied are invari- ably cited in the margin, and the author trusts that the sub- division of the work into chapters, appropriately headed, and the addition of a Table of Cases and Contents, and a complete Index, will render it easy of reference to every lawyer. INTRODUCTION. VU Reducing to a system the rules which apply to tax sales, and the principles upon which they are founded, so as to render it perfect, is a task of much labor and difficulty. One of these difficulties grows out of the conflicting provisions of the revenue laws of the different States, and the peculiar local policy which governs their construction. This is alluded to by Judge McLean, in delivering the opinion of the Su- preme Court of the United States, in the case of Games v. Stiles (14 Peters, 322), which came up from the State of Ohio : " The laws of Ohio, imposing a tax on lands, and regulating its collection, like similar laws in perhaps almost all the other States, are peculiar in their provisions, having been framed under the influence of a local policy. And this policy has, to some extent, influenced the construction of those laws. There can be no class of laws more strictly lo- cal in their character, and which more directly concern real property, than these. They not only constitute a rule of property, but their construction by the courts of the States should be followed by the courts of the United States with equal if not greater strictness than the construction of any other class of laws." Again, the sale of land for the non- payment of taxes is a proceeding unknown to the common law of England. While the feudal tenure prevailed in that country, the enforcement of the collection of the tallage, scutage, or hidage tax by a sale of the land itself would have been contrary to the policy of the feudal system. The vassal received the right of using and enjoying the land on condition of fealty and the performance of certain services, while the lord still retained the paramount right ; and the fief was distinguished from allodial possessions by the circum- stance that it could not be aliened without the consent of the feudal lord. .No tenant could be imposed upon him against .his will. For this reason the fief could not be seized under execution, or sold for taxes which may have been levied upon it. Indeed, the only involuntary alienation of a feud, known to the common law, was its forfeiture for treason. The taxes were collected either by the imprisonment of the delinquent, the distress of his goods and chattels, or an exe- Tin INTRODUCTION. cution against them out of the Exchequer. In modern times the land tax is farmed out, with a clause of entry and dis- tress; and when these fail, resoi't is had to a suit in the Exchequer by the farmer of the revenue, and sometimes a composition takes place between the land-owner and the gov- ernment, and the tax is redeemed by the payment of a gross sum. Thus the common law is a stranger to the power of sale exercised in this country over landed estates for the non-payment of taxes assessed. Yet that law furnishes the principles by which this new power is to be governed. It is the chief excellence of the common law that it is flexible, and constantly expanda^ with the exigencies of society ; that it applies to new combinations of circumstances those rules which are derived from its fundamental principles. In the language of Judge Story, " May it ever continue to flourish here, for it is the law of liberty, and the watchful and inflexi- ble guardian of private property and public rights." Chicago, June, 1865. CONTENTS. CHAPTER I. * Sect. Oi' THE Validity, Cdeb, and Effect of Tax Titles, and op Peocedube in Relation thereto 1-8 CHAPTER II. Of the Fundamental Principles which control the Taxing Power 9-120 CHAPTER III. Of the Nature op the Power to sell Land for the Non- payment op Taxes, and of the Strictness required in SUCH Sales 121-166 CHAPTER IV. The Election and Qualification op the Several Officers who have Anything to do with the Execution op the Power 167-192 CHAPTER V. Thb Listing and Valuation op the Land 193-299 CHAPTER VI. The Levy op the Tax 300-329 CHAPTER VIL The Authority to collect the Tax 330-334 X CONTENTS. CHAPTER VIII. Sect. The Demand op the Tax 335-339 CHAPTER IX. Seizure of the Body, or Goobs akd Chattels, of the Delin- quent, TO SATISFY THE TaX 340-345 CHAPTER X. Retubn of the Delinquent List 346-350 CHAPTER XI. The Pkoceedings where a Judicial Condemnation is re- quired 351-395 CHAPTER XII. Advertisement of the Time and Place of Sale 896-452 CHAPTER XIII. Authority of the Officer to sell 453-464 CHAPTER XIV. Distinction between Conditions Precedent and Directory Requirements .... 465-475 CHAPTER XV. The Tax Lien 476-484 CHAPTER XVI. Sale op the Land 485-556 CHAPTER XVn. Fraudulent Sales 557-565 CHAPTER XVIII. Who may purchase a Tax Title 666-608 CONTENTS. Xi CHAPTER XIX. Sbot. Sales to State, Cohhtt, oe Citt 609-611 CHAPTER XX. CoEPOBATiON Sales 612-621 CHAPTER XXI. The Cebtificate o^ Sale 622-640 CHAPTER XXn. Conditions Subsequent to the Sale, Retcbn of Sale, and Gecosd of Pboceedinqs 641-659 CHAPTER XXni. The Subplus Bond 660-667 CHAPTER XXIV. Locating the Land ... 668-673 CHAPTER XXV. CoNFinMATioN OP Sale 674-677 CHAPTER XXVI. Notice to Redeem 678-699 CHAPTER XXVn. Rkdemftion of the Land 700-730 CHAPTER XXVin. The Tax Deed 731-795 JU CONTENTS. CHAPTER XXIX. BlOT. DOVBNANTB OF THE OFFICER IN THE TaX DeED 796-SOO CHAPTER XXX. Sffect of the Sale akd Deed whekb the Land sold was exemft from or not subject to taxation 801-819 CHAPTER XXXI. * Sffect of the Sale and Deed where the Taxes bATE been PAID before the Sale 820-838 CHAPTER XXXII. Effect of the Sale and Deed where the Officer has abused or exceeded HIS Authority 839-843 CHAPTER XXXIII. The Deed as Evidence 844-860 CHAPTER XXXIV. The Deed as Color of Title 861-864 CHAPTER XXXV. \urHENTICATION OF DOCUMENTS .866-873 CHAPTER XXXVI. l^ARIANCES BETWEEN THE DIFFERENT DOCUMENTS AND RECORDS RELATING TO THE PROCEEDINGS 874-880 CHAPTER XXXVII. Vmendment of the Proceedings 881-887 CHAPTER XXXVm. IIonsent of the Owner to Irregularities 888-804 CONTENTS. Xlll CHAPTER XXXIX. Sect. SiATDTEa OP Limitation 895-947 CHAPTEU XL. Cdbe op Defectitb Tax Pkoceedings 948-953 CHAPTER XLI. The Puechaser's Title to and Interest in the Land . . . 954-993 CHAPTER XLII. The Pckchases's Biqht to recover Taxes, etc., prom the Owner 994-1008 CHAPTER XLIII. The Purchaser's Kight to recover por Improvements . . 1009-1025 CHAPTER XLIV. FORFEITDSES 1026-1045 CHAPTER XLV. Refeai, 1046-1052 CHAPTER XLVI. The Jurisdiction op the Courts in Causes involving the Validity op Tax Sales and op the Remedies op Parties interested therein 1053-1081 CHAPTER XLVII. The Mode op Pleading a Tax Title 1082-1097 CHAPTER XLVni. The Rules op Evidence relative to the Maintenance and Overthrow op a Tax Title 1098-1119 siT CONTENTS. CHAPTER XLIX. SXCT. The Bubden of Proof 1120-1172 CHAPTER L. The Pkinciple op Staei! Decisis concerning Tax titles 1173-1176 CHAPTER LI. Df the Interpretation and CoNSTRncTioN or Statutes affecting Real Property 1177-1238 APPENDIX. Abstracts op a Tax Title 1239, 1240 INDEX Page 1191 TABLE OF CASES. A. Section Abbott V. Doling 127 ij. Kdgerton 342 V. Lindenbower 266, 367, 429, 950, 1140, 1146 V. Wood 1228 V. Yost 331 Abell B. Cross 675 Ackley v. Sexton 526, 527 Adam w. Litchfield 196 Adams v. Adatns 841 V. Bainter 674 11. Beale 704, 707, 714, 734, 835. 1052, 1140,114.3 V. Burdick 680, 1065 V. Castle 1058 V. Commonwealth 1193 V. Dooling 777 V. Field 1207 V. Jackson 174, 182, 184 V. Larrabee 2.30 V. Mills 700 V. Say re 598 V. Turrentine 156, 1187 "Adjustment Com'ra' Report, Re 611 Adriance v. M(!CafEerty 127, 299 Agricultural College v. Hamilton 36 V. Linscott 971 V. "Webster County 801 Ailesbury v. Pattison 1186 Ainsworth v. Dean 178, 179, 180, 238, 261, 541 Alabama Board of Assessment v. Ala. Cent. R. Co. 103 Alameda County v. Huff 440 Albany & S. R. Co. v. Mitchell 1143 Albany Brewing Co. v. Meriden 518, 894 Albany City Nat. Bank v. Maher 35, 197, 953 Albany County v. Meriden 477 Albany Street, Re 1143 Alcorn v. Hamer 24, 57 Aldrich v. Aldrich 331 Aldridge v. Williams 1203 Seetion Alexander v. Baltimore 118 V. Bush 667 V. Helber 852, 614 V. Merrick 1000 V. Merry 793 V. Pitts 424 V. Sully 675 V. Walter 859 Alger 0. Curry 445, 1097 Allegheny City's Appeal 480, 986 Allen V. Archer 950, 952 V. Armstrong 184, 192, 417, 852, 1140, 1143, 1146, 1154 V. Buckley 770, 996 V. Buffalo 1056 V. Burlington 828 V. Drew 22, 34, 57 V. Everts 750 V. Jay 45 u. McCabe 965, 974 W.Morse 531,549,1117 V. Munn 911 V. Mut. F. Ins. Co. 1194 V. Peoria & B. V. E. Co. 301, 321 V. Poole 572 V, Robinson ' 1132 V. Scott 331 V. Smith 125, 127, 398, 442, 450, 1106, 1125, 1132, 1134 V. Trimble 754 Allen's Lessee v. Parish 897, 465 Alley V. Edgecombe 44 Allison V. Armstrong 591 Almy V. Harris 1211 Alstyne v. Wimple 622 Alter V. Shepherd 704 Altes V. Hinckler 127, 1081 Alvis V. Whitney 807 Alvord u. Collins 127,178,260,319, 429, 435, 1128, 1132 Amberg v. Rogers 758, 1140 Ambler v. Clayton 834 Amenia Overseers, &c., v. Stan- ford Overseers, &c. 10 American Ins. Co. v. Canter 16 xfi TABLE OP CASES. Section Section American Missionary Assoc, v. Attorney- General v. Bank of New- Smitli 685 bern 329, 1227 American Print Works V. Law- V. Bay County Sup. 64 rente 1210 V. Burrell ■ 44 American Union Exp. Co. v. St. V. Detroit & E. PI. B . Co. 1193, Jusepli 103 1206 Amesbury Woollen, &c. Co. v. V. Utica Ins. Co. 1188, 1191, 119.3, Amesbury 36, 615 1197, 1220, 1223 Anderson v. Anderson 821 V. Winnebago, &c., PI. R. Co. 24 V. Courtright 931 Attorney-General's Opinion 60, 674 V. Kerns Drain Co. 24, 44, 103 Atwater v. Woodbridge 806 ti. Patton 358 Atwell V. ZelufE 231, 328 0. Kider 282, 514, 992 Atwood V. Weems 829 V. State 807, 1058 Auditor v. Atchison, T. & S. F. R. Andover & M. Turnp. Corp. V. Co. 299 Gould 159, 335, 1216 V. Jackson County 197 Andrews v. Auditor 68 Augusta City Council v. Augusta V. People 439, 948 Nat. Bank 23 V. Senter 629, C46 Aulanier v. Governor 170 V. United States 1227 Aurora v. West 103 Ankney v. Albriglit 821, 834 Austin i>. Holt 217,774 880, 897, 898, Annan v. Baker 728, 737, 764, 885, 1132 941, 964, 1070 Anscomb v. Shore 840 V. Sonle 445 Anson v. Anson 594 Avery v. Bowman 884 (Appeal of A., B., &c. See A.'s, V. Judd 591 B.'s, &c. Appeal.) V. Pixley 1216 Apperson v. Kord 1059 V. Rose 488, 668 Appleton V. Hopkins 341 Axtel V. Gerlach 521 Armitt v. Breanie 745 Ayers ti. Knox 1192 Armstrong v. Athens County Treasurer 807 V. Middlestadt 682 B. V. Morrill 942 Armstrong County Com'rs v. Smith 252 Babbitt v. Johnson 610 Am V. Hoppin 1002 Babcock v. Granville S28 Arnold v. Smith 676 Bachelor v. Bachelor 439 Arrington v. Liscom 1066 Backus V. Lebanon 806 Arrowsmith v. Burlingim 16,96 Bacon v. Conn 726, 1063 Atthurs V. King 527, 607 V. Curtiss 704 V. Smathers 262, 254 Bagnell v. Broderick 1138 Ash i: Cummings 51 Bagshawe v. Goward 840 Ashley v. Harrington 1203 Bailey v. Ackerraan 204 Ashville v. Means 328 V. Haywood 349 Astor V. New York 948 V. New York 36 Astrom v. Hammond 60, 816 Baily v. Doolittle 682, 1160 Atchison & Neb. R. Co. v Lancas- Baird v. Gaboon 717, 830 ter County Com'rs 103 Baker v. Cincinnati 108 V. Maquilkin 950 !). Crabb 685 Atchison, T. & S. F. E . Co. V. V. Kelley 739, 932, 945, 1082 Francis 103 V. Towles's Adm. 301, 1132 V. Woodcock 950 V. Whiting 571, 598, 947 Athens v. Long 29, 34, 119 ». Windham 44 Atkins V. Hinman 283, 376, 377, 878, Baldwin v. City Council 118, 328 379, 380, 384, 389, 890, 391, 303. V. Elizabeth 611 394, 885,970,1123 B.Ely 610 V. Kinhan , 161 165, 472, 773 V. Merriam 746, 783, 935 Atkinson ». Fell 1237 Ball V. Busch 844 Atkison v. Pixon 570 Ballance ». Forsythe 597, 672 Atkyns v. Horde 897 Ballard v. Appleton 1056 Attorney-General v. Bank of Cape V. Stevenson 1013 Fear 11901 Baltimore v. Chase 341 TABLE OP CASES. XVU Section Baltimore v. Howard 17, 614 V. Hughes's Adm. 57 V. Moore 17, 24 u. State 847 V. White 133, 1125 Baltimore Turnp. Co., Re 20 Baugor v. Lancey 204, 869 V. Masonic Lodge 36 Bangs K. Snow 319 Bank of Columbia v. Okely 83, 94 Bank of Columbus v. Hines 103 Bank of Commerce v. N. Y. City 62 Bank of Georgia v. Savannah 36, 329, 615, 1227 Bank of Ind. v. New Albany 103, 807 Bank of Louisville v. Kentucky 62 Bank of N. Y. v. N. Y. Sup. 62 Bank of Pa. v. Commonwealth 13, 114, 809 Bank of Republic u. Hamilton County 807 Bank of So. Carolina v. Srayers 914 Bank of Tennessee v. Cooper 91 V. State 113 Bank of U. S. v. Dandrldge 1116 Bank of Utioa v. Mereereau 239, 742, 772, 787, 1073, 1207 Bank Tax Cases 62 Barber v. Evans 1002 Barbour v. Camden 44 V. Nelson 1038 Barden v. Crocker 1212 Barger's Lessee v. Jackson 674 Barke w. Early 197, 917, 1000, 1008 Barker o. Blake 278 i-.-Esty 1189,1190,1199 V. Hesseltine 255 Barlow v. Bell 1013 Barnard v. Graves 331 V. Hoyt 735, 1064 Barnes v. Doe 200, 1125 i: Harris 355 Barnett v. Cline 1054, 1068 Barrett v. Amerein 581 V. Crane 355 V. Love 922 V. Stockton & D. R. Co. 1236 Barrow v. Davis 1054 V. Lapene 996 V. Wilson 752 Barry o. Mandell 156, 1186, 1220, 1225 Barstow v. Smith 1188, 1221 Bartholomew v. Leech 598, 665 Bartholomew v. Harwinton 44 Bartlett v. Lang's Adm. 869 V. Morris ' 139, 1188, 1189, 1190 Bartley's Heirs v. Harris 859 Barton v. Kalloch 103 r. Moss 598 Barton's Heirs v. Gilchrist 554, 653 Baskins v. Winston 520, 533, 547 VOL. I. — h Section Bass V. Bass 1205 Bassett v. Carleton 1211 V. Porter 331, 341 V. Welch 581, 586, 694 Basso V. Benker 704, 727 Bates B. Branch Bank at Mobile 181, 151, 357 V. Planters' & M. Bank 131, 357 Baton Rouge Oil Works, Re 1030 Baxter v. Jersey City 127, 1054, 1 1 32 V. People 488 Bay City v. State Treasurer 10, 44 Bayard v. Inglis 937 Beach v. Walker 945 Beadleston v. Sprague 1214 Beall V. Harwood 1188 Bealls V. Guernsey 465, 643 Beals V. Amador County Sup. 13, 34, 44, 103 V. Hale 1209 Bean v. Thompson 507, 884 Beard v. Green 522 V. Smith 1027 Beatty v. Mason 341, 1125, 1132 Beaty v. Knowler's Lessee 125, 619 Beehdale v. Lingle 254 Beck V. Phillips 746 Becker v. Howard 965, 975 Bedell v. Janney 156, 1187, 1198, 1204, 1205, 1220 Bedoe v. Alpe 488 Beekman v. Bigham 1132, 1161 V. Frost 544, 793 Beers v. People 948 Beeson v'. Johns 285 Beirne v. Burdett 950 Belcher v. Mhoon 675, 1083, 1140, 1158 Belden v. State 466 V. Thomas 914 Belfast Savings Bank v. Kennebec Land & L. Co. 205 Bell V. Coats 345 o. Fry 265 u. Gordon 773 V. Morrison 1226 Bell's Heirs v. Barnett 1013 Belleville Nail Co v. People 353 Bellmeyeri;. Marshalltown School District 44 Bellows V. Elliott 127, 658, 1132, 1133, 1175 V. Parsons 1176 t). Weeks 950, 952 Belo V. ForSythe County 37 Belton V. Briggs 1013 Belz V. Bird 428 Bemis v. Weege 860 Bendixon v. Fenton 746 Benedict v. Gilman 1013 Bennett n. Hunter 826, 829, 1031 V. Kcehn 634 XVIU TABLE OP CASES. Section Benson v. New York City 1050 Benton v. Wiukwire 496 Bergen v. Clarksou 54, 99, 614 Bernal v. Lynch 681 Berney v. Tax Collector 63 Berri v. Patch 1054 Bertram v. Cook 583 Berwin v. Legras 345 Besore v. Dosh 487, 997 Bestor v. Powell 397, 491, 754, 793 Bettis V. Taylor 357, 1227 Bettison v. Budd 566, 578, 879, 1102, 1148 Beverly v. Burke 861 Biddle v. Noble 254 Bidleman v. Brooks 277, 279, 846, 1154 Bidwell V. Coleman 230, 419 V. Webb 398, 420 Bigelow I). Forrest 971 Bigler v. Karns 937, 954 Billings V. Detten 222, 309, 395, 468, 950 V. McDermott 639 V. Stark 982 Birch V. Fisher 127, 168, 178, 179, 200 Bird V. Jones 632 Biscoe V. Coulter 539, 542, 614, 732, 807, 814, 846, 849, 966, 1099, 1140, 1148 Bishop V. Cone 884 V. Lovan 127, 446, 453, 1132 V. Marks 24 Bissell V. Kellogg 1054 Black V. Percifield 675 V. Scott 1213 Blackwood v. Brown 793 V. Van Vliet 567, 570, 1054 Blair v. Waggener 981 t'. Worlev 1197 Blair Town Lot Co. v. Scott 766 Blake v. Howe 566, 582, 591 V. People 950 V. Sturterant 175, 331 Blakeley v. Bestor 226, 378, 585 Blakeney v. Ferguson 127, 164,1063, 1094, 1125 Blalock V. Gaddis 427 Blanchard v. Bissell 617 V. Powers 296, 1053 V. Sprague 1200, 1212 Blanding v. Burr 13, 44 Blanton v. Ludeling 996 Bleecker v. Ballou 10 Bleidorn v. Abel 1048 Bleight V. Auditor 329, 1227 Blessington v. Galveston 103 Blight's Heirs v. Banks 701, 821, 883, 11.32 Blight's Lessee v. Atwell 883 Blodgett V. Holbrook 1107 Bloodgood V. Mohawk & Hudson River B. Co. 1032, 1143 Section Bloomstein ti. Brien 1147 Blue Jacket ». Johnson County Com'rs 812, 971 Blunt's Lessee v. Smith 1138 (Board of Com'rs. of A. County, B. County, &c. See A. County Com'rs, &c.) Board of Ed. of Scio Dist. v. Mc- Landsborough 44 Board of Regents of Kansas State Agr. Col. V. Hamilton 36 V. Linscott 971 V. Webster County 801 Board of Revenue v. Montgomery Gas-light Co. 36 (Board of Sup. of A. County, B. County, &c. See A. County Sup. &o.) Bodertha v. Spencer 324 Bodley v. Hord 1132 V. Taylor 1138 Bohler v. Schneider 103 Boisgerard v, Johnson 127, 547 Bolan V. Bolan 1100, 1135, 1160 Bolin V. Francis 920 Bolinger ii. Henderson 717, 725, 821 Bolton V. Cleveland 948 Bond V. Appleton 1211 V. Hiestand 859 V. Kenosha 24, 1058 Bonnell v. Roane 335, 675, 768, 1148 Boon V. Chiles 359 V. Juliet 1214 Booth V. Booth 945 V. Woodbury 11, 42 Boston U.Shaw 1211 Boston & R. Mill Corp. v. Gardner 1233 V. Newman 61 Boston Tunnel Co. v. McEenzie 521 Bosworth V. Danzien 764, 767 Botsford V. Burr 1013 Bott V. Perley 335, 621, 802 Bouldin v. Massie's Heirs 757, 1138 Bowen v. Bell 1135 V. Donovan 341, 342 V. DuflEie 954 Bowers v. Andrews 790, 791 V. Chambers 773 V. Green 1173 V. Hallock 1065 V. Williams 704 Bowles r. Clough 263 Bowman v. Cockrill 570 V. Eckstein 634 V. Middleton 1143 V. Roe 219 V. Thompson 992 V. Wettig 373, 916 Boyce v. Sebring 314, 1166 V. Sinclair 950, 952 Boyd V. Holt 721, 728 TABLE OP CASES. XIX Section Boyd V. Hunt 951 Boyd's Lessee v. Longwortb 793 Boyden b. Moore 521 Boyer v. Jones 297 Bracey v. Ray 821 Bracken v. Cooper 672 Brackett v. Oilman 962 V. Whidden 331 Bradford v. Lafargue 814 V. Randall 207 V. Walker 517, 705 Bradley v. Cole 995 V. Ewart 938 V. Hintrager 483 V. McAttee 835, 613, 804 V. Snyder 1012 V. Ward 204 Bradshaw v. Omaha 108 Bradstreet v. Huntington 896 Brady v. Dowden 781 V. OfEutt 127, 194 Bragg V. Paulk 559 Braly v. Seaman 196, 294, 379 Branch Bank at Mobile v. Murphy 1219 Braner v. Langmead 793 Branham v. Bezanson 589 Branson v. Yaney 577, 1072 Bratton v. Mitchell 301, 950 Braun v. Chicago 103 Bredin v. Cranberry T. E. Com. 1006 Breeze v. Haley 219 Breisch v. Coxe 830 Brettaugh v. Locust Mt. Coal Co. 223 Brevoort v. Brooklyn 208 V. Detroit 950, 951 Brewer v. Springfield 1054 Brewer Brick Co. v. Brewer 103, 119 Brewster v. Hough 13, 803, 807 V. Syracuse 24, 44 Brice v. Myers 1208 V. Georgia 143, 773 Bride v. Watt 911, 915 Bridge v. Bracken 1153 Bridge Prop. v. State 114 Brien v. O'Shaughnesy 163, 527, 782 Briggs V. Morse 478 V. Whipple 44, 1103 Brigins v. Chandler 219, 311, 784 Brinsfield v. Carter 1202 Briscoe v. Allison 1054, 1057 Bristol V. Barker 1190 V. Chicago 102 V. Johnson 44 Brittin v. Handy 571 Britton v. Ward 1236 Broadway Bank v. N. Y. City 62 Broadway Bap. Church v. McAttee 23, 807 Brock V. Bruce 293 Brodhead v. Milwaukee 10, 42 Brodnax v. Groom 103 Section Bromley v. Keynolds 53, 54 Bronson v. Eodes 714 Brookings v. Woodin 782 Brooks V. Bruin 861 V. Hardwick 726 V. Rooney 127 Brotherline v. Hammond 223 Brouglier v. Conley 497 Broughton v. Journeay 252 V. Manchester Water- Works 220 Brown v. Austin 983 V. Connelly. 1116 V. Devine 910 V. Dinsmoor 127, 166, 224, 238 V. Farren 1207 V. Fodder 1008 V. Goodwin 478 V. Hays 214, 250, 830 I. Hogle 221, 309, 353, 366, 468, 546, 571, 572 V. Hummel 95 V. Hutchinson 413, 772 V. Martin 1072 V. Painter 923 V. Simons 593 V. Smith 127 u. Snell 520 u. State 1202 «. Veazie 127, 164, 166, 261, 398, 416, 446, 1052, 1125, 1127 V. Walker 249, 549 V. Weast 816 V Wheeler 131, 151, 357, 397 V. Wilcox 1213 V. Wright 27, 334, 1128, 1132, 1188 Brown's Adm. v. Langford's Adm. 522 Broxon v. MuDougal 1004 Bruce v. Schuyler 286, 623, 732, 734, 905, 1051, 1193 Bruck V. Broesigks 611 Brumbaugh v. MagiU 636 Brune v. Prideaux 841 Brunn v. Murphy 277, 668, 1149 Brush V. Cook 174 V. Ware 1138 Bryan v. Sundberg 1199 Bryan's Adm. v. Harvey's Adm. 1044 Bryan's Heirs v. Dennis 1193, 1229 Bryant v. Estabrook 998 Buchanan v. Reynolds 790 Buchannon v. Upshaw 893 Buck V. Delafleld 1150 v. People 522, 948 V. Spofford 1204 Buckley v. Early 486, 1000 V. 'faggart 584 Buckley's Lessee v. Osbom 802, 814, 1040, 1041 Bucknall v. Story 819, 521, 1055, 1125, 1149 Bucknam v. Buggies 177 XX TABLE OP CASES. Section Budd V. Bettison 788, 790 V. State 91 BueU V. Ball 18 V. Irwin 319 Bufialo City Cemetery t>. Buffalo 807 Buffalo State L. R. Co. v. Erie County Sup. 207 Bufflngton v. Day 59 Bulkley v. CaUanan 527, 541, 734, 948, 1146 Bull V. Griswold 482 V. Bead 118 BuUis V. Marsh 497, 852, 918, 922, 923 Bullock V. Currey 44 Bunner v. Eastman 125, 406, 697, 1161, 1162, 1163 Burbank v. Bumsey 346 Burbrans v. Van Zandt 572 Burch V. Savannah 23, 103 Burchard v. Hubbard 767 Burd I'. Patterson 945 V. Bamsay 253, 255, 336, 341 Burdick v. Bingham 487, 919, 1004 V. Connell 276, 683 Bureau County Sup. v. Chicago, B. & C. B. Co. 23 Burgess v. Pue 331 Burgett's Lessee t>. Burgett 1190, 1226 Burhaus v. Van Zandt 666 Burke ». Elliott 174 Burlew v. Quarrier 787 Burlington v. Beasley 38 Burlington & Mo. B. Co. c. Otoe County 49 V. Spearman 1058 Burnes v. Atchison 24 Burnet v. Cincinnati 1058 Burnett i;. Sacramento 24, 105 Burns v. Ledbetter 727 u. Lyon 500, 664, 667 Burr V. Carbondale 56 V. Hunt 1055, 1149 V. Wilcox 894 Burrill v. Phillips 512 Burroughs v. Goff 521, 779 Burrows ». Bashford 1073 Burton v. Hintrager 700, 713, 728, 894 Busch V. Huston 572, 583 Bush V. Collins 174 V. Davison 164, 641, 681, 694, 695 V. Seabury 807 Bussey v. Gilmore 318 ». Leavitt 127, 404, 434, 1140 Butler V. Charlton County Court 1050 V. Delano 852 I). Horwitz 714 V. Kelsey 488 V. Palmer 1060 ». Porter's Ex. 571 B. Putney 44 V. Kicker 1227 Section Butler V. Toledo 950, 952 V. Wigge 522 Butler's Appeal 118 Butterfield v. Walsh 727 Buttrick v. Nashua Iron, &c. Co. 522 Buzzell V. Johnson 497 Byam v,. Cook 526, 527, 782, 889 Byington v. Allen 722 V. Bookwalter 704, 707, 730 V. Hampton 716, 719 V. Rider 701, 705, 730 V. Eobertson 1088 V. Stone 985 Byrne's Adm. u. Stewart's Adm. 91 Cable 0. Coates 709 Cadmus i>. Jackson 353, 821, 986 Cahoon v. Coe 294, 379, 411, 427, 489, 642, 871 Cairo & F. R. Co. u. Parks 90 Calden v. Bull 1032 Calder v. Keegan 817, 1016 V. Rutherford 846 Caldwell v. State 297 Calhoun v. Eletcher 80, 1077 Call V. Chase 1068 V. Dearborn 777 Calladay v. Pilkington 159 Callahan v. Davis 934 CaUanan v. Hurley 554, 852 Cambon v. Lapene 700 Cambridge Prop. v. Chandler 408, 445 Camden ». Allen 10, 335 Camden & A. R. Co. v. Briggs 1225, 1226 V. Hillegas 822 Campbell v. Clark 1218 V. Dewick 187 V. Leach 841 V. Mclver 358 V. Morris 64 v. Packard 704 V. Quinlan 1207 V. Stagg 731 V. State 395 V. Thompson 1217 V. Wilson 254 V. Wyant 342 Campbell County Court Judge v. Taylor 613 Canton West Sch. Dist. v. Merrills 318, 614 Capital State Bank v. Lewis 300, 522, 795, 956, 1000 Carbee v. Hopkins 659 Cardigan Prop. v. Page 178, 180, 182, 261, 308, 304, 833, 8.34, 507, 559, 1101 Carey v. Giles 1226 TABLE OP CASES. XXI Section Carithers v. Weaver 579, 927 Carleton v. Washington Ins. Co. 355 V. Whitcher 522 Carlin o. Cavender 352 Carlisle's Lessee v. Longworth 127, 1164 Carmichael ti. Aiken's Heirs 127, 262, 801, 416 Carpenter v. Sawyer 127, 449, 656, 1101 Carroll v. Perry 816 V. Safford 60 Carter v. Burger 91, 102, 329 V. Bustamente 566 V. Dow 103 V. Hadley 522 * V. Straphan 738 Cartwright v. McFadden 782 Carutlicrs v. McLaren 547, 729, 784 Case V. Albee 919, 920 d. Dean 299, 320, 559, 562, 885, 895, 1054 Cass V. Bellows 439 Caston V. Caston 440 Gates i,-. Knight 1237 Catlin i;. Hull 13, 1189 Cato V. Gordon 193, 948 Catterlin v. Douglass 341, 342 Caul V. Spring 981 Cavender v. Smith's Heirs 793 Cedar Rapids & Mo. R. Co. v. Car- roll County 417 V. Woodbury County 817 Central Br. Union Pacific R. Co. v. Smith 45 Central Park, Ee 44 Challis V. Parker 57 Charaberlin v. Taylor 197, 204, 294, 418 Chambers v. Satterlee 103, 275 V. Wilson 597 Champaign v. Harmon 611 Chandler v. Dunn 992 V. Keeler 488 V. Moulton 60O, 604 V. Nash 151 V. Spear 127, 331, 413, 474, 772, 773 V. Wilson 1071 Chapel of the Good Shepherd v. Boston 86 Chapin v. Curtenius 395, 704, 708 Chaplin v. Holmes 488, 722, 1052, 1055 Chapman v. Brooklyn 258, 1007 V. Doe d. Bennett 502, 1132 V. MuU 598 V. Templeton 897, 898 Charles v. Waugh 127, 357, 367, 376 Chase v. Dearborn 579 V. Hathaway 397 V. Sparhawk 331, 332 Section Chattanooga v. Nashville, C. & St. Louis R. Co. 103, 951 Chauncey v. Wass 353 Cheaney v. Hooser 21, 614 Cheasley v. Barnes 643 Cheatham v. Howell 397 Chegaray v. Jenkins 807 Cheney v. Jones 13 V. Stevens 521 Chesapeake & O. Canal Co. v. Bal- timore & O. R. Co. 1193 Chesapeake & 0. R. Co. u. Miller 103, 115, 811 Cheshire v. Berkshire County Com. 103 Chesnut v. Marsh 357, 376, 378, 379, 390, 599 V. McShane's Lessee 1191 Chestnut v. Elliott 207 Chicago V. Beatrice 1060 V. Lamed 23 V. People 36 Chicago & N. W. R. Co. ». Boone County Sup. 23 V. Miller 36 Chicago, B. & Q. R. Co. v. Frary 1058 V. Siders 103 Chicago, R. L & P. R. Co. v. Allfree 862 Chicago County v. St. Paul & D. R. Co. 353 Chicago Theol. Sem. v. Gage 1068 Chickering v. Faile 379, 566, 571, 572, 594, 822, 911, 916 Childs V. Shower 864 Chiles V. Davis 912 V. Patterson 1010 Chmiquy v. People 522, 948 Choteau v. Jones 596 Christman v. Currie 950 Christy v. Fisher 566, 581 V. Minor 1132 Church V. Crocker 1193 u. Gilman 751 Churchill v. Merch. Bank 1216 Churchman v. Indianapolis 1006 Cincinnati Col. v. State 807, 1229 Cincinnati So. Ry. Trs. v. Guenther 951 Citizens' Sav. & Loan Assoc, v. To- peka 10, 38, 39, 43, 45 City R. Co. V. Chesney 853 Clark V. Connor 674, 675, 1140 V. Courtney 125, 843 V. Covenant Mut. L. Ins. Co. 1055, 1056, 1059 V. Crane 293, 473 V. Graham 757 V. Hall 895, 1065 V. Holmes 151 V. Lyon 91 1 V. Middlesworth 971 xxn TABLE OP CASES. Section Clark ». Mobile 108 V. Morse 346, 821, 1142 V. Mowyer 427 II. Norton 218 V. Protection Ins. Co. 1212 V. Tliompson 638, 852 t'. Tucker 449, 654 Clarke v. Eovfan 398, 548 V. Strickland 135, 319, 424, 528, 970, 1045 Clason V. Bailey 744 Clay V. Hopkins 139 V. Moore 933 V. Nicholas County Com. 1057 Claybrook v. Owensboro 64 Clayton v. Cliicago 102 Cleghorn v. Postlewaite 1057 Clementi i: Jackson 895 Clemohs v. Lewis 468 Cleveland Nat. Bank o. Ida 10, 38, 45, 326, 950 Clippinger v. Tuller 635, 734 Close V. Samm 863 Clute V. Barron 604 Clymer v. Cameron 845 Coates V. Campbell 45 Coatesville Gas Co. v. Chester County 103 Coats ». Hill 996 Cobb V. Elizabeth City 103 Coburn v. Kiuhardson 34 Cochran v. Guild 478 Coco V. Thienman 1140 Coe V. Farwell 1068 Cogburn v. Hunt 223, 956, 1002 Cogel I). Raph 777 Cohen v. Sharp 1055 Coit V. Wells 178, 182, 449, 655, 1101, 1103 Coite V, Soc. for Savings 30 Colburn v. Ellis 175 V. Hollis 863 V. Swett 1212 Colby V. RusseU 205, 869 Cole V. Moore 606, 722 V. Pennoyer 910 Coleman v. Baker 719 V. Billings 862 V. Davidson Acad. 1193 V. Maxcy 91 V. Peshtigo Lumber Co. 940 Collector v. Day 59' Collins V. Barclay 820, 981 V. Blantern 522 V. Doe 1125 V. Smith 905 V. Welch 350 Colman i-. Anderson 319, 539, 1111 Colquhoun v. Atkinson 745 Colt V. Eves 468 Columbus Exchange Bank v. Hines 10 Section Colvin V. MeCune 863 Coman v. State 1100 Comer v. Folsom 23, 34, 44, 103, 118 Comins v. Harrisville 307 Commercial Bank of Cleveland v. lola 10, 38, 45, 950 Commercial Bank of Natchez v. Chambers 1217 Commercial Bank of Pa. v. Wood- side 254 831 (Commissioners of A. County. See A. County Cora'rs.) Commissioners of Pub. Schools v. Alleghany County Com'rs 35, 103 Commissioners' Report, Ee 611 Commonwealth v. Barlovr 1226 V. Bryan 963 V. Cambridge 1222 V. Chambre 1216 V. Colley T. Sup. 1058 V. Cooley 1204 V. Downes 1209, 1218 V. English 1193 V. Fowler 176 V. Hardy 1227 V. Knapp 1187 V. Loring 1227 ». Maxwell 17 V. Messenger 1187 V. Moore 13, 30 V. Philadelphia County Com'rs 331 V. Savings Bank 34, 103 V. Springfield 1209 Comstock V. Beardsley 681, 692, 695 V. Cover 719 V. Crawford 355 Conard v. Atlantic Ins. Co. of N. Y. 969 Condit ?>. Blackwell 788, 1140 Cones D. Wilson 342 Coney v. Owen 802, 1022 Conn V. Conn 672 Connecticut Mut. L. liis. Co. u. Bulte 594 V. Commonwealth 103 Connelly v. Nedrow 663 Connersville v. State Bank 104 Connolly v. Connolly 1064 Conrad v. Darden 301, 488 Converse v. Jennings 727 V. Rankin 718 Conway v. Cable 558, 714, 795, 895 V. Waverly 1054 V. Younkin 887 Conwell V. Connersville 57 Conyers v. Kenan 914 Cook V. Burlington 103 V. Norton 379, 836, 905, 915 V. Pennington 488 V. Shepard 127,835, 341, 694. 1132 Cook County V. Chicago, B. & Q. R. Co. 1056, 1060 TABLE OP CASES. XXUl Section Cooley V. O'Connor 201, 898, 623, 639 V. Waterman 587, 587a Coolidge V. WilUams 1233 Coombs «. Warren- 258, 591, 693 Coonradt v. Myers 995, 1009 Cooper V. Ash 103, 116 V. Brockway 702 V. Bushley 700 V. Corbin 478 V. Jackson 277, 591 B. Shepardson 725, 850 V. Sunderland 355 Coppinger v. Rice 566 Corbett v. Nutt 704, 707 Corbin v. Beebee 604 V. Davenport 1007 t;. De Wol£ 527, 541 V. Hill 331, 1143, 1154 V. Stewart 717 u. Washington County 994 u. Woodbine 1068 V. Young 427 Corbum v. Crittenden 200, 522, 523, 631, 626 Corfield v. Coryell 64 Corliss V. Corliss 397 Corning Town Co. v. Davis 275, 717 Cornwall v. Todd 136, 329 Corte V. Soc. for Savings 13 Corwin v. Campbell 1054 V. Merritt 165, 472 Cory V. Sileox 488 Cossart v. Spence 838 Costlgan V. Mohawk & Hud. R. R. Co. 1135 Cottingham v. Springer 886 Couch V. Jeffries 1213 Couey V. Cunimings 165 Coughran v. Gutchens 885 Coulson V. Portland 1055 (County of A. v. Sua. See A. County V. &o) Cousins v. Allen 704, 757 Covington v. Boyle 484 V. Southgate 21 Cowell ». Doub 452 V. Washburn » 492 Cowgill V. Long 950 Cox V. Clift 1055 Cox's Lessee v. Grant 341, 1127 Coxe V. Blanden 668 .V. Deringer 952 V. Gibson 570 V. Sartwell 704 V. Wolcott 598, 715 Cragin v. Henry 540 Craig V. Flanagin 722, 730 , V. Radford 465 Crandall v. Nevada (6 Wall.) 63 V. State (10 Conn.) 64 Crane v. Janesville 278, 1057 Section Crane v. Reeder 1045, 1098, 1125 Cranmer v. Hall 252, 937, 1022 Crapo V. Stetson 335 Crawford v. Morrell 522 V. Planters' & M. Bank 1209 V. State 131, 357, 1227 Crawford County Com'rs v. Marion County Com'rs 556 Crecelius o. Mann 1002 Creigh v. Wilson 1022 Creighton v. Manson 24 Cresoe v. Laidley 1205 Crittenden v. Wilson 1211 Crocker v. Crane 1188 Cromelien v. Brink 709 Crooke v. Andrews 258, 1055 Crooks V. Whitford 621 Crosby_ v. Lyon 28, 807 Cross V. Milwaukee 325 Croswell v. Byrnes 383 V. Crane 1204 Crowell V. Goodwin 541, 542 V. Hopkinton 44 V. Lawrence 24 V. Merrill 516 V. Utley 1068 Cruger v. Dougherty 258, 417, 471, 889, 1132 Cruikshanks v. Charleston 77 Crura «. Burke 822 V. Cotting 970 Culbertson v. Munson 995 «. Witbeck 319 Culver V. Hayden 127, 414, 449, 470, 654 V. Watson 709 Cumberland County Sup. v. Web- ster 1057 Cumming v. Fryer 12.30 Cummings v. Clarke 175 V. Easton 478, 479 V. Holt 445, 621, 1125 Curl r. Watson 719, 721, 727 Currie v. Fowler (5 J. J. Marsh.) 224, 236, 420, 551, 668, 1132 Curry v. Fowler (3 A. K. Marsh.) 327 755 V. Hinraan 390, 394, 395, 821, 1143 Curtis V. Brown County Sup. 249, 1005 u. East Saginaw 1067 v: Morrow 678 V. Smith 670 V. Wliitney 735 Curtis's Adm. v. Whipple 10, 38, 44, 45,51 Curtis's Lessee r. Norton 674 Curtiss V. Follett 858 Gushing v. Dill 1227 V. Longfellow 127, 510 V. Newburyport 44 Cutler V. Hurlbut 788, 941 XXIV TABLE OP CASES. Section Cutlifl !>. Albany 103 Cuttle V. Brockway 487, 602, 661, 667, 701, 764, 846, 890, 1128 Cuyahoga Falls R. E. Ass. Trs. v. McCaughey 950 Cayler». Rust 159,1228 D. Daggett V. Everett 341 V. State 1227 Daily v. Newman 353, 429 V. Swope 23, 613 Dakota County Com. o. Parker 328 Dalison v. Gill 1280 Dallam v. Oliver's Ex. 341 Dalrymple v. Milwaukee 10, 940 Dalton V. Fenn 749, 750 Daly V. Ah Goon 263 Daniel v. McCorreU 950 Daniels v. Burso 836 Dann v. Spurrier 769 Danser v. Johnson 726 Darling v. Gunn 23, 1057 Darmstaetter v. Moloney 204 Dartmouth Col. v. Woodward 16, 87, 92 809 Dash V. Van Kleeck 1187, 1213, 1214, 1220, 1225 Daughdrill v. Ala. Life Ins. Co. 24, 103 Davenport v. Farrar 705 V. Knox 929 V. Miss. & Mo. R. Co. 35 Davidson v. New Orleans 81 V. Ramsey County Com'rs 10, 47 V. Wallace 572 Davis V. Boston 1059 0. Chntou 85 II. Fames 127, 205 V. Gossnell 450 «. Handy 541 V. Hare 821 V. Harrington 786 V. Haydon 1192, ll93 V. King 572 V. Macon 103 V. Maynard 1103 V. McGee 279 V. Minge 342, 848 V. Read 120 V. Simms 403 V. State Bank 950 V. Vanarsdale 847, 953 Davis's Lessee v. Powell 1021 Davison v. Gill 152, 154 Dawley v. Van Court 862 Day I'. Day 746 V. Graham 465 V. Micou 171 Dayton v. Bealf V. Rice Dean v. Borchsenius Section 713. 964 591 325, 950, 951, 1062, 1068 V. Charlton 319, 325, 951 V. Early 941 V. Gleason 293, 298, 1058 V. Madison 614, 1056 De Antignac v. Augusta 1132 De Brahm b. Fenwlck's Ex. 1013 De Chastellux v. ^airchild 70 Decker v. Freeman 621 V. McGowan 103 De Forrest v. Ramsay 793 De Graw v. Taylor 934 Deiman v. Ft. Madison 18 Dejarnett v. Haynes 1133, 1140 Delaplaine v. Cook 846, 1140, 1172 De Lashmutt v. Sellwood 294 Delaware County Inst. v. Delaware County 36 Delaware R. Tax, Re 115, 805 Dellet V. Whitner 1013 Delogny v. Smith 127, 398, 434, 441 Delorme i-. Ferk 226, 747 Den V. Adams 1135 V. Bedford 1136 V. Craig 199, 204, 332, 447, 501, 1101, 1102 V. Durham 1135 V. Du Bois 1193, 1197 V. Gates 1132 u. Hunt 914 V. Lucey 452 ti. RedcUck 174 II. Rose 488 V. Stewart 301, 303, 331 V. Wheeler 1136 V. Wilbourn 452, 488 Denike v. Rourke 613, 681, 739 Dennett v. Crocker 835 Denning v. Smith 138, 1125, 1126 Dennison v. Keokuk 990 Denniston v. Unknown Owners, &c. 818 Denny v. Mattoon 950 Dentler v. State 127, 357 Dequasie v. Harris 844 Des Moines Nav. & R. Co. ». Polk County 815 Des Moines Water Company's Ap- peal 36 Desmond v. Babbitt 265 Desormeaux v. Moylan 262 De Treville v. SmaUs 639 Detroit v. Jepp 336 V. Martin 1067 Detroit & H. R. Co. ii. Salem Board 10 Detroit, Eel River, & I. R. Co. v. Bearss 180, 468 Detroit Park Com. v. Detroit 613 TABLE OP CASES. XXV Section Detroit Young Men's Soc. v. Detroit 230, 807 Devereux v. Taf t 594 Devine v. MeCuHoch 859 DeTor V. McClintock 556 Dew V. Terrell 821 Dewey v. Osborn 793 De Witt V. Hays 1055 Diamond Coal Co. v. Fisher 715 Dickenson v. Breeden 911, 915, 916 V. Gilliland 512 Dickerson v. Acosta 13, 640 Dickison v. Reynolds 208, 273 Dietrick v. Mason 254, 321, 717, 721, 725, 948 Dike i;. Lewis 526 Dikeman v. Dikeman 734 ■ 0. Parrish 1102, 1132, 1133 Dill V. Roberts 32^ Dillingham v. Brown 863, 898 V. Snow 319, 331, 469, 613 Dillon V. Merriam 1000, 1068, 1095 Dingey v. Paxton 945, 953 Divine v. Harvie 1197 Dixon V. Doe d. Porter 815, 816, 979 Doane v. Chittenden 543, 967 Dobbins v. Erie County Com'rs 61 Dodds V. Marx 245 Dodge u. Emmons 792, 928 u. Essex County Com'rs 1211 Doe V. Allen 127, 488, 489. 642, 754 V. Bryan 127, 160, 465, 545, 1039 V. Chunn 499, 614, 616, 617, 732 V. Deavors 99, 341, 968 . Campbell 159 V. Crawford 488 V, Dickey 717 V. Henarie 482 Doughty V. Hope 125, 127, 164, 201, 397, 697, 1125, 1161 Douglas V. Dangerfield 224, 231, 420, 597, 1063, 1074, 1075 Douglas County Com. v. Union Pac. R. Co. 818 Douglass V. Bank of Mo. 1209 t;. Dickson 713, 958, 965 V. Harrisville 103 V. Nuzum 734 V. TuUock 895, 918, 920 V. Wickwire 174 Dousman v. O'Malley 1215 Douthett V. Kettle 539 Dow ». Chandler 790 Downer v. Woodbury 184, 189, 331 Downer's Adm. v. Smith 571, 572, 591 Downey v. Nutt 544 Downing v. Roberts 331 V. Shoenberger 704 Dows V. Chicago 1056 Dowtie's Case 1033 Doyle V. Newark 325 Draining Co. Case 44 Drake v. Phillips 614 Drake's Adm. v. Vaughan 556 Dranguet v. Proudhomme 1135 Dreisbach v. Berger , 667 Drennan v. Beierlein 521 Dresback's Lessee v. McArthur 127, 196, 801, 802, 899, 1132 Dresden v. Gond 200 Dreutzer v. Smith 631, 940 Drew V. Davis 319 Driggers v. Cassaday 196, 240, 479 Drury v. De Fontaine 488 Dubois 17. Campau 571, 575, 586, 596, 1132 V. Hepburn 706 V. Poughkeepsie 496 Dubuque v. Chicago, D. & M. R. Co. 34, 103, 106 V. Wooten 466 Dubuque & Pac. R. Co. v. Webster County 816 Ducat V. Chicago 23 Dudley v. Little 129, 560, 1063, 1068 Duffw. Neilson (Mo.) 359, 778, 785, 934 B. Wilson (Pa.) 571 Duffitt V. Tuhan 580 Dufour V. Camfranc 1135 Dngan v. Baltimore 614 Dukes V. Rowley 379, 393, 449, 1150 Duncan v. .Gillette 778 V. Smith 704 V. Walker (2 Dallas) 963 TABLE OP CASES. Section in's Lessee i-. Walker (1 T.) 963 en V. Snodgrass 250, 050 im V. Chicago 23, 298, 885 Osborn 961 People 44 p V. Dougherty 915 Gallatin County 970 Henry 749 V. Hearick 900, 941 Meriwether 1135 Ralyea 224 Snell 591 Winston 642, 985 8 Lessee v. Games 1102, 1132 )van V. Green 1057 V. Thompson 1072 h's Appeal 34 t V. KauSman 18 a V. Platto 637 3 V. Murray 996 sseaa v. United States 1191 I). Boyd 762 0. Farmington 103 ■!. Boswell 345, 548 Branch Bank at Mobile 802, 985, 1058 Osborne 37 E. ». Connelly 886 f Darlington v. Pnltney 1081 !i. Simons 342 V. Doe d. Homans 127, 398, 430, 431, 820, 1132 Whittingham 199, 919, 997 an V. Little 411 McAlpin 1190 Thayer 965 1 V. Hayes 1007 Mawkinney 559 SaTery 310, 497 It. Lonis V. Witts 613 V. Manitowoc 631 North 569, 704, 740, 746, 756, 892, 1172 Tallmadge 719 lie Coal Co. a. Common- th 36 !.'. People 397 ;on V. Bird 864, 895, 921, 941 Schneider 591 ison V. Galreston 352, 480 ds i;. Beaird 327 People 948 Pope 1190, 1191 n V. N. O. Third Munici- y 335, 1206 an Levee Co. :;, Hardin 12, 24 Section Einstein o. Gay 528, 755 Eitel V. Foote 353 Elder v. Beniis 1211, 1212 Eldridge r. Kuehl 321, 497, 523, 541, 662, 784, 792, 822, 895, 920, 945 V. Tibbitts 1052 Elkin V. People 754 ElUot's Heirs v. Garrard 704 Elliott V. Doe d. Eddins 398, 431, 448, 1128, 1132 t). Miller «25 V. Pearce 862, 863 V. PeirsoU 354, 383 EUis V. Hall 254 V. Kenyon 341, 342, 1132 t . Paige 139, 1189, 1204 I'. Peck 605 V. Whitlock 1228 Ellsworth o. Cordrey 598, 680, 685, 717 V. Freeman 999 V. Green 685 V. Low 680, 685, 704 V. Van Ort 685, 712 Elston V. Kennieott 379, 836, 905, 911, 912, 914, 915 Elwell r. Shaw 319, 522 Emerson v. Washington County 803, 1005 Emery v. San Francisco Gas Co. 12, 24, 103 r. Harrison 1132 Emigrant Industrial Say. Bank v. Goldman 496 English V. Oliver 30 V. People 45 Ennis v. Crump 1204 Eno V. New York 948 Enos V. Bemis 272 Ensign v. Barse 602, 986 Entick V. Carrington 1177 Entreken v. Oiambers 488 Eppinger v. Kirby 294, 379, 886 Erskine v. Van Arsdale .328 Ervine's Appeal 74, 96 Erwin v. Helm 254, 668, 769 Eschbach o. Pitts 481 Eskridge v. McGruder 556 Essington v. Neill 488 Estes V. Stebbins 722, 896, 925 Ethel V. Batchelder 713 Eurigh V. People 948 Evans v. Jordan 1191 V. Sharp 325 V. Stevens 1200 Everett v. Beebee 604, 997 V. Boyington 410 V. Smith 897 Eversten v. Sawyer 793 Exchange Bank v. Hines 10 Extension of Hancock Street, Re 13 Ezekiel v. Dixon 1189, 1226 TABLE OP CASES. XXTll F. Section Fagan a. Chicago 62 Fager v. Campbell 667, 965, 981 Fain v. Garthright 914 Fairbanks ». Williams 995 Fairfax County v. Levy 24 Fairfax's Dev. v. Hunter's Lessee 1033, 1037 Faler v. McRae 731 Falkner v. Dorman 777 V. Guild 860 Fall River v. Bristol County Com'rs 103 Fallon V. Chidester 572 Fanning v. Funches 219 Faribault v. Misener 103 Farmers' & Mech. Bk. u. Bronson 1132 Fj^^me^s' & Merch. Bk. v. Cliester 174 Farmers' Tump. Co. v. Coventry 1211 Farnham v. Bowker 719 V. Jones 526 Farnsworth Co. v. Lisbon 119 V. Band 948 Farnura v. Buffum 127, 128, 135, 398, 416, 419, 429 Farrar v. Eastman 433, 437, 450, 621, 732,790,873, 1115 V. Perley 621 Farrington v. Wilson 812 Faure v. Winans 591 Favers v. Glass 1195 Faw V. Marstelier 1188 Faxon v. Wallace 704, 709, 726, 728 Fell u. Cessford 911 V. Price 793 Fellows o. Deniston 270, 528, 812 Felsenthal v. Johnson 285, 1061 Fenton v. Way 717 Ferguson v. Etter 666 V. Heath 526, 527 ' B. Landram 2.3, 894 s. Miles 793, 794 V. Peden 863 Ferrell v. Dickerson 845 Ferris v. Coover 196 V. Cross 773 Fetterman v. Hopkins 175 Field V. Highland Co. Com'rs 34, 103 V. People 498 Finch V. Brown 704, 730, 961 V. Pinckard 125 Finlay v. Cook 897, 898, 916 Finley v. Brown 716, 844 V. Williams 1138 Finney v. Ackerman 676 V. Boyd 223 V. Ford 676 Fire Dep. of Milwaukee v. Helfen- stein 103 Firemen's Ins. Co. v. Baltimore 35 First Nat. Bank of St. Joseph v. St. Joseph 294 Section Fischel v. Mercier 1077 Fish V. Brown 254 Fisher v. Cockerill 1213 V. Higgins 1213 V. Horicon Iron & Manuf. Co. 51 V. Krutz 598 V. People 522, 948 V. Wisner 111 Fisk V. Brunette 719 Fitch V. Casey 127, 846. 876, 1125, 1128 !). Kirkland Highway Com'rs 12.S0 V. Pinckard 127, 285, 328, 398, 435, 450, 613, 614, 617, 1132 Fitts V. Huff 717, 727 Fitzgerald w. Spain 582 Fix V. Dierker's Succession 262 Flagg V. Munger 1189 Flanagan v. Grimmet ■ 753, 790, 899, 1125, 1149, 1171 Flatbush Avenue, Re 161 Fleisehauer v. West Hoboken 277 Fleming v. McGee 342 V. Kovernd 994 Fletcher v. Oliver 2.3, 34, 103, 807 V. Peck 31, 809, 1032, 1050 Flinn v. Parsons 994 Flint V. Sawyer 461 Florida Sav. Bank v. Brittain 733, 755 Floyd V. Gilbreath 1056, 1058 Fonda v. Sage 1055 Foot V. Stevens 354 Foote V. Milwaukee 1058 Forbes v. Cochrane 1235 V. Halsey 1140 Ford, He 398 Forey v. Bigelow 1003 Forrest v. Henry 725 Forrestier ». Bordman 512 Forster v. Forster 540, 950, 953 V. McDivit (5 Watts & S.) 254 Fortraan v. Ruggles 376 Fosdick V. West 1213 Foster v. Blount 1227 V. Blue Earth County Com'rs 328 V. Bowman 704 V. Ellsworth 1065 V. Kenosha 613 V. Letz 863 V. McDivit (9 Watts) 1133 Foster's Lessee v. Dugan 793 Fountain v. Westchester Co. Sup. 1143 Fountain Coal Co. v. Phelps 598 Foust V. Ross 127, 1132, 1133 Fowler v. Basket 1213 V. Beebee 174 V. Danvers 44 V. St. Joseph 1055, 1068 V. Tuttle 1199 Fox V. Cash 600 V. Coon 566 V. Hoyt 355 XXVIU TABLE OP CASES. Section Fox V. Stafford 1125 V. Turtle 366, 368 Foxcrof t V. Nevens 205, 869 Francis v. Atchison T. & S. F. R. Co. 103 V. Grote 895 V. Washburn 341, 344,* 358 Frank v. Arnold 559, 694, 1065 Franklin v. Franklin 1"^26 V. Talmadge 399 a Franklin Coal Co. v. Bertels 277 Franklin Glass Co. o. White 159, 1216 Franklin Ins. Co. v. State 34, 103 Frear v, Hardenbergh 1010 Freeland v. Hastings 107 Freeman v. Atlanta 484 V. Cram 496 V. Thayer 1114 Freemont v. Boling 1058 V. Mariposa County 1058, 1066 French v. Edwards 471, 641 V. Ladd 845 V. Patterson 248, 541, 549, 727, 1125, 1147 V. Spaulding 275 Frentz v. Klotsch 573, 757, 773 Frick V. Sterrett 666 Fridge v. State 354 Friend v. Gilbert 44 Frink v. Darst 1173 V. King 1193 Fritz V. Joiner 915 Frost V. Beekman 793 V. Flick 340, 1060 Fry V. Phillips 746 Frye v. Bank of Illinois 691 Fuller V. Armstrong 197 V. Grand Rapids 616 V. Groton 44 V. Hodgdon 591 V. Unknown Owners 637 G. Gabe v. Root 748 Gage V. Arndt 1000 V. Bailey 353, 731, 948 V. Billings 821, 1054 V. Busse 1068 V. Chapman 1054 ». Currier 1211 V, Davis 679 V. Graham 562, 613, 1062 V. Lightbum 995 V. Mayer 679 V. Pirtle 995 V. Pumpelly 353 V. Reid 679, 742 V. Rohrbach 821, 1054 c. Scales 717 Section Gage V. Schmidt 736, 1064 V. Waterman 995 V. Williams 312, 1065 Gainsford v. Griffith 1202 Galbraith v. Brought 604 Gait V. Galloway 1074 Gamble v. Hon- 1065 V. Witty 311, 522 Games v. Stiles d. Dunn 165, 196, ; 1102, 1125, 1132, 1176 Gammel v. Potter 51 Gardenhire v. Mitchell 853 Gardiner v. Gerrish 591 Gardiner Cotton, &c. Co. o. Gardiner 36 Gardner v. Brown 421 «. Karly 1068 ». State 116 Garibaldi v. Jenkins 277, 524, 704 Garland v. Garland 272 Garmoe v. Sturgeon 683 Garner v. Anderson 1031 Garrett v. Doe d. Wiggins 127, 398, 448, 1052, 1132, 1140, 1146, 1213 V. Moss 439 V. White 301, 458 Garrettson v. Scofield 594 Garrick v. Chamberlain 417, 502 Garther v. Lawson (31 Ark.) 1002 Garwood v. Hastings 237, 285, 697 Gaskell v. King 522 Gaskins v. Blake 686, 720 Gates V. Lawson (32 Gratt.) " 985 Gatlin v. Tarboro 103 GatliBg V. Lane 863 Gault's Appeal 714, 728 Gavin v. Shuman 788, 1132, 1144 Gaylord v. Scarfe 127, 395, 676, 821 Geekie v. Kirby Carpenter Co. 773 Genther v. Fuller 523, 948 V. Lewis , 5'Al George v. Mendon Second Sch. Dist. 298 Georgia v. Atkins 814 V. Frazier 84 Georgia Bank v. Savannah 36 Gerac v. Guilbeau 1072 German Am. Bank v. White 1007 Gernon v. Handlin 1018 Gerry v. Stoneham 44 Geter v. Tobacco Insp. Com. 1216 Gibbons v. Ogden 1223 Gibbs V. Dorch 622 II. Swift 661 Gibson v. Bailey 884 V. Chicago 294 V. Chouteau 817 V. Jenney 1187, 1222 I). Mason 10, 13, 99 V. Mussey 798 V. Bobbins 254 Giddings v. Smith 650 Gilbert v. Burgott 1223, 1224 TABLE OP CASES. XXIX Section Gilbert v. Columbia Turnp. Co. 162, 153, 678, 1102 V. "Vanderpool 1224 Gildart v. Gladstone 1236 GilfiUan v. Chatterton 625 Gilkerson v. Frederick Justices 103 Gilkey v. Cook 753 Gillet V. HIU 674 Gillett V. Webster 1072 Gilliam v. Reddick 174 Gillis V. Barnett 853, 641 V. Martiu 1013 GUman v. Riopelle 248, 585, 931, 1098 V. Slieboygaa 24 Gilmore v. Holt 174 V. Thompson 1023 Gitchell V. Kreidler 974 Gladney v. Deavors (11 Ga.) 99, 341 Gladwin v. French 709, 730 Glanoy v. Elliott 582, 697 Glasgow V. Rowse 23 Glass V. Gilbert 223, 250 V. Sloop Betsey 354 Gledney v. Deavors (8 Ga.) 968 Glidden v. Chase 521 Goddin v. Crump 56 Goenen v. Schroeder 729 Goewey v. Urig 897, 912, 1125, 1132, 1145 Goffe V. Bond 637 Gomer v. Chaffee 488 Gooch V. Stephenson 1211 Good Shepherd Chapel v. Boston 36 Goodall V. Harrison 378 Goodenow v. Tyler ' 512 Goodrich v. Florer 713, 721 V. Kimberly 591 Goodright v. Straphan 738 Goodsell V. Boynton 1218 Goodwin v. Lyon 1013 V. Savannah 103 Gordon v. Appeal Tax Court 806, 807 I/. Comes 57 V. Majoribanks 1174 Gore V. Brazier 1192, 1222 Gorham v. Springfield 1209 Gosler v. Tearney 922, 928 Gossett V. Kent 331, 339, 524, 1148 Gouch V. Wood 746 Gould V. Baltimore 930 V. Day 705 V. Thompson 734, 852 Gouverneur v. New York 341 Graceland Cemetery Co. v. People 358 Gracie v. White 704 Graeter v. Wise 354 Graham v. Chautauqua County Com'rs 34 Grand Gulf R. & B. Co. o. Bryan 963 Granger v. Parsons 293 Granite Bank v. Treat 355 Section Grant v. Brockman 1203 V. Naylor 1226 Graves v. Bruen 127, 196, 286, 289, 290, 742, 749, 750, 846, 1099, 1100, 1188 V. Hayden 754, 1132 Gray v. Coan 542, 700, 734 Great Falls Manufacturing Co. v. Goodlet 51 Greely v. Bartlett 512 Green v. Biddle 1010, 1014 V. Craft 335, 642 V. Kemp 1198 V. Watson 254 V. Williams 566, 846 Greenabaum v. King 328 Greene v. Lunt 127, 178, 209, 219; 224, 242, 301, 335, 417 V. Mumford 1056 Greenough v. Fulton Coal Co. 198, 295 Greenwood w. Bishop of London 522 Greer u. Wheeler 527, 582 Gregory v. Des Agnes 1237 Greve v. Coffin 1157 Griffin V. Brooklyn 11, 24 V. Bruce 918 u. Creppin 226, 417 V. Dogan 11, 99, 855, 1083, 1158 V. Ellis 547, 953 V. Mixon 99, 1032 i'. Tutfle 683, 1105 Griffin's Ex'r v. Cunningham 950 Griffing v. Pintard 826 Griffith B. Depew 1013 Griggs V. St. Croix County 207 Grignon's Lessee o. Astor 354 Grim v. Weissenberg Sch. Dist. 10. 34, 44, 826, 328 Grimm v. O'Connell 781, 790 Grimmer v. Sumner 676 GriswoUl V. Bard 745 V. Wilson 632 Groesbeck v. Seeley 895, 931, 945, 1102, 1140, 1143 Grosvenor v. Cheney 521 Guard v. Rowan 1213 Guffy V. O'Reily 788, 790 Guidry v. Broussard 262, 996 Guilford v. Chenango County Sup. 25 Guinn u. McCauley 581 Guise V. Early 486, 1000 Guisebert v. Etchison 674 Guittard Township v. Marshall County Com. 610, 686 Gulf R. Co. V. Morris 103 Gunn V. Howell 355 Gunnison v. Hoehne 941, 945 Gunnison County Com'rs. v, Owen 103 Guthrie County Com'rs v. Carroll County Com'rs 801 TABLE OP CASES. SectioQ '. Hermonce 1066 V. Van Zant 397 n V. Richardson 219, 1105 Be V. Neiswanger 816, 976, 977, 1074, 1165 y V. Tankersley 127 ■ V. Bronson 428 • V. Reclamation Dist. No. 108 78 Yolo County 44 It V. N. Y. City 277 u. Branscum 942 Burton 1229 . Cashing 184, 186, 188, 190 Gladfelder 911. 912 , Glidden 863 , James 961 Kenosha 23 Law 86 , Penn's Heirs 726 &c. M. Co. V. Storey County 60 Ex parte 1194 . Byrne 1198 . Cazcnove 745 . Collins 127, 1128, 1132 . Dowling 60 . Guthridge 681 . Hall 1031 . Irwin 157, 1187 . Kellogg 819, 320, 1064, 1099 . McCaughey 477 . State 1227. 1229 . Wescott 594 Heirs V. Dodge 627, 782 nbeck v. Eahn 1057 r I'. Blaeo 773, 783 tt V. Novion 1212 way V. Clark 862 y V. Blood 726 . People 53, 57, 948 V. McClaws 17 . Miller 614 . State 1205 Iton V. Adams 1135 . Fond du Lac 270, 278, 1054, 10-55, 1056 . Hamilton 1013 . 111. & Mich. Canal Com'rs 139, 1186, 1188, 1191, 1192, 1193 . Valliant 1005 . Wright 863, 921 ilton's Lessee v. Burum 341, 344, 358 mett V. Philadelphia 53 mond V. Hannin 836 montree v. Lott 522 pshire County «. Franklin unty 566 Hampton v. Rouse 705 Hancock Street Extension, Re 13 HandB. BaUou 681,683,1140 Hanlon v. Westchester County Sup. 1055, 1056 Hanua v. Com'rs 816 Hannel's Lessee v. Smith 2-34, 331, 346, 409, 457, 870, 1040, 1041, 1077, 1164, 1176 Hannewinkle v. Georgetown 1055, 1056,1066 Hannibal & St. J. R. Co. v. Shack- lett 807 Hannibal First National Bank v. Meredith 1056 Hanscom r. Hinman 251 Hanson v. Vernon 10, 17, 48 Hapgood r. Batcheller 612 Harbeson v. Jack 254 Hardenberg ». Schoonmaker 745 Hardenburgh v. Kidd 319 Hardie i;. Cbrisman 855 Hardin i: Crate 911, 915, 916 V. Osborne 915 V. Owinga 141, 1220 Harding v. Funk 51 V. Goodlet 51, 1143 Hardy v. Gregg 566 V. Waltham 803 Hare v. Camall 604, 709, 1059 Harkreader i-. Clayton 488, 594, 958 Harlan v. Jones 1004 Harland v. Eastman 312 Harman r. New MSrlboro 217 Harmon's Lessee v. Stockwell 346, 347, 463 Harney i'. Charles 717 Harper v. Elberton 84 V. McKeehan 254, 948 V. Rowe 516, 950 0. Sexton 426, 527, 782, 1081 Harriet, The 1227 Harriman v. Titus 357 Harrington r. Hilliard 478 V. Worcester 788 Harris v. Curran 521, 965 V. Stapleton 522 V. Stockett 311 V. Wood 82, 99 Harrison i'. Haas 1068 V. Harrison 572 V. Owens 717 V. Walker 1198 V. Williams 801 Harrison's Dev. b. Baker 1013 B. Fleming 1013 Harrison County Com'rs v. Mc- Carty 468 Hart V. Clels 157 1-. Fitzgerald 1228 V. Henderson 326, 714, 846, 960 TABLE OP CASES. XXXI Section Hart V. Holden 44 V. Plum 807 V. Seixas 354 V. Smith 400 Hartford First Eccl. SoQ. v. Hart- ford 320, 328 Hartley v. State 331 Hartinan v. Anderson 725 V. Greenliow 65 Hartwell v. Boot 1116 Harvey v. Mitchell 668, 1132 Harward v. St. Clair, &c. Drain Co. 613 Haseltine v. Simpson 718, 940 Haskel v. Burlington 477, 614 Haskell v. Bartlett 400 V. Putnam 566 Hastings v. Lane 1213 Hatch V. Buffalo 1056 Hathaway v. Elsbree 252 a. Goodrich 331 Harard v. Day 521 Haven v. Cram 668 Haverhill, &c. Iron Manuf. v. Bar- ron 458 Hawes v. Howland 704 Hawkins v. Barney's Lessee 896 V. Jonesboro 170, 200 V. Kemp 149, 166, 674 Hawkins's Adm. v. Lowry's Adm. 1013 Hay V. Earl of Coventry 1200 Hayden v. Dunlap 397, 465 0. Foster 319, 327, 519, 526, 530, 532 Hayes v. Hanson 465, 1193 V. Viator 284 Hayne v. Heller 762, 774 Hays V. Armstrong 1226 V. Hunt 515 Haythorn v. Motgerem 1059 Hazen v. Essex Co. 51 Head v. Amoskeag Manuf. Co. 51 V. James 230, 1056 V. Providence Ins. Co. 220 Heard v. Heard 1218 V. Walton 705 Hearick v. Doe d. Dunn 900 Hearn's Petition 948, 950, 953 Hearsey "v. Boyd 1224 Heath, Ex parte 468 V. Ross 793 Heaton v. Knight 735 Heft V. Gephart 197, 198, 254, 823, 831, 948. 1099. 1128 Heil V. Redden 531 Heine v. Levee Com'rs 477 Helms V. Wagner 342 Hemmingway v. Drew 793 Henderson v. Davenport 793 V. Oliver 417. 895, 920, 948. 1102 V. White 427 Hendriz t>. Boggs 682 Section Hennepin County v. Grace 36 Henrichsen v. Hodgson 730 Henry v. Chester 12, 398 Henry ». Tilson 1222 Hensley Township v. People 44 Hepburn v. Griswold 714 Herring v. Pollard's Ex. 1013 Herrington ». Williams 1059 Herron ». Murphy 754 Hersey o. Milwaukee County Sup. 298 1058 Hess V. Herrington 223, 285, 668, 875 Hessler v. Drainage Com'rs 613 Hewell V. Lane 549 Hewitt V. Berryman 1013 V. Butterfield 750 V. Storch 758 V. Week 750 Hewitt's Appeal 952 Hewlett V. Nutt 103 Hewson v. Dygert 544 Heydon's Case 156 Heywood v. Buffalo 1055, 1056 Hibernia Sav. & Loan Soc. v. Ord- way 1068, 1083 Hickey v. Stewart 354 Hickman v. Dawson 1072 V. Kempner 349, 781, 831 Hickox V. Tallman 844, 1140 Hicks V. Van Zandt 1188 Higgins V. Crosby 576, 911 High V. Shoemaker 23, 75, 102, 246 Hightower v. Freedle 754, 1148, 1167 Hilbish V. Catherman 10 Hildreth's Heirs v. Mclntire's Dev. 169 Hilgenberg v. Marion County Com'rs 1004 V. Rhodes 1016 Hill V. Atterbury 792, 934 V. Higdon 24, 57 V. Kricke 896. 941 V. Leonard 127. 1132 V. Lund 932 V. Mason 346 ». Mowry 768 V. Nicholson 486 V. Streeter 872 I). Timmermeyer 679 V. Wolfe 468 Hiller v. English 488 Hilliard v. Griffin 556 Hillinger v. Devling 833 Hills V. Chicago 352 0. Exchange Bank 829 Hillyer v. Farneman 680 Himmelman ». Carpentier 482 Himmelmann v. Steiner 263 Hinchman v. Whetstone 912 Hinds V. Chamberlip 622 Hines :;. Leavenworth 24 xsxu TABLE OP CASES. Section Eingham, &o. Bridge Corp. v. Nor- folk County 57 Hinkley v. Greene 915 Hinman v. Pope 130, 384, 385, 391, 893, 394,454, 1122, 1126, 1132, 1135, 1150 Hintrager ti. HennesBy 923 V. Kiene 1065 Hitchcox V. Rawson 1138 Hoagland v. Culvert 174 Hobbs V. Clements 127, 415 V. Shumates 790, 1125, 1149, 1171 Hobson V. Button 773, 784, 802, 1102, 1140 Hockenbury v. Snyder 262, 1022 Hodge V. Wilson 125, 546, 553 Hodgdon v. Burleigh 244, 42.3, 522, 816, 953, 1053 V. Wiglit 725, 837, 1045 Hodges V. Bufialo 44 Hoffman r. Bell 254, 764, 845, 948 V. Clark County 678 V. GroU 995 Hogelskamp v. Weeks 204, 208, 305 Hogins V. Braahears 749, 790, 1148 Hoghtaling v. Osborn 489 Hoitt V. Burnham 445 Hoke V. Henderson 95 Holbrookw. Dickenson (56 III.) 834,911 V. Dickinson (46 111.) 23, 127, 393, 1150, 1152, 1161 V. Fellows 682, 684 V. Holbrook 139, 1189, 1193, 1220, 1222 Holden v. Eaton 482 ». James 91 Hole V. Rittenhouse 1108, 1128 Holliday v. Marshall 746 V. Swailes 397, 1217 Hollingsworth v. Barbour 1074 Hollister's Lessee v. Bennett 317, 463, 647 Holloway B. Ciark 713,912,914 Holroyd i;. Pumplirey 429 Holt I'. Weld 1066 Holt's Heir's Lessee v. Hemphill 127, 196, 301, 331, 398, 458, 1074, 112-), 11.32 Holterhoff ti. Mead 571 Holton V. Bangor 37 Home Ins. Co. v. Augusta 103 V. Swigert 103 Home of the Friendless v. Rowse 806 Home Sav. Bank v. Boston 1007 Homer o. Ciiley 198, 331, 346, 408, 458, 489 Hood V. Dighton 1233 V. Mathers 704, 876 Hooker v. Young 465 Hooper v. Clayton 739, 864, 988 V. Edwards 488 V. Sac County Bank 197 Section Hope V. Deadrick 328, 613 V. Sawyer 394, 395, 492 Hopkins v. Lovell 1054 V. Sandige 346, 642 V. Scott 790 Hopper V. Malleaon's Ex. 985, 1099, 1132 Horn V. Garry 632 Horner v. Doe d. State Bank of Indiana 354 Horton ». School Com'rs 44 Hough V. Easley 993 Hoaghton v. Burnham 1067 V. Matthews 512 House V. Stone 1009 Houston V. Buer 498 Howard v. Heck 204 V. Stevenson 525 Howe V. Cambridge 84 V. Green 735 V. People 526 V. Russell 1132 V. Singe 522 Howell V. Bristol 23, 34 V. Buffalo 57, 326 V. State 807 Howes V. Bassett 297, 299 ». Racine 1068 Howland v. Petty 501, 527 Hoyt V. Dillon IVib Hubbard v. Brainard 136, 320, 328, 329 V. Johnson (9 Kan.) 790, 927 V. Johnson County Sup. (23 Iowa) 1057 V. Winsor 198, 301, 894 Hubbell r. Campbell 776 V. Weldon 125, 127, 223, 988 Huebschmann «. McHenry 10:!5 Huey V. Van Wie 602, 746, 750, 753, 783, 1146 Hughes V. Kline 1058 Hughey's Lessee r. Horrel 127, 128, 134, 164, 212, 398, 401, 406, 435, 442, 486 Hulick V. Scovil 751, 793, 1138 Hull V. Hull 1219 Hume V. Wainscott 266, 429 Humphrey v. Pegues 115, 803 Hungerford v. Bedford 1070 Hunnewell v. Charlestown 1054 Hunsaker v. Wright 24, 103 Hunt V. Chapin 523 V. Gaines 598 V. Holden 1216 V. McFadgen 512, 675, 827, 1148 V. Rowland 1068 V. State 416 Hunter t>. Cochran 821, 822 w- Early 486, 995 Huntington v. Brantley 846 1-. Central Pac. R. Co. 850, 1066 TABLE OP CASES. xxxni Section Hnrd v. Hatnill 1007 V. Raymond 208 Hurlburt v. Dyer 784 Hurlbutt V. Butenop 203, 294 Hurley v. PoweU 321, 331, 417, 822, 948, 1146 V. Street 500, 784, 920 V. Woodruff 1146 Huse V. Merriam 315 Huston ». Foster 127, 746, 1128, 1133 V. Markley 559 Hutchen v. Niblo 1193 Hutchins v. Moody 341 Buzzard V. Trego 598, 730, 992, 1102 Hyslop V. Clarke 522 Iddings ». Cairns 895 Illinois V. Delafield 511 111. Industrial University !). Cham- paign County Sup. 36 HI. Mut. F. Ins. Co. V. Marseilles Manuf. Co. 705 Immegart «. Gorgas 847 Indiana Co. v. Agric. Soe. 103 Indiana/polls v. Langsdale 1005 IngersoU ». Jeffords 1002 Ingle o. Wordsworth 1228 Inglis V. Bayard 687 Ingraham ». Regan 1207 &iman v. Coleman 208 V. Jackson 621 Ins. Co. V. Baltimore 35 Internat. L. Ins. Co. v. Scales 711 Iowa Homestead Co. v. Webster County 103, 816 Iowa R. Land Co. v. Guthrie 826 V. Sac County 417 Ireland v. Rochester 397, 398, 1058 Iron City Bank v. Pittsburg 809, 810 Irving ». BrowneU 127, 286, 905, 908, 910, 912, 1132 Irwin V. Bank of United States 987 V. Miller 834, 1101 V. Trego 992 Isaacs V. Decker 334 V. Gearheart 544, 892 V. Shattuck 127, 405, 449, 653, 656, 657, 868 V. Steel 1190, 1191 .-. Wiley 127, 164, 166, 178, 183, 399o, 870 Isham V. Bennington Iron Co. 1193 Iverslie v. Spaulding 445 Ives V. Lynn 335, 338, 345, 444, 542, 549, 624, 649; 739 V. Kimball 1132 V. Ko. Canaan 894 Ivinson v. Hance 816 VOL. I. — C Sbction Jacks 0. Cha£Bln 765 V. Dyer 681 Jaclsson v. Anderson 821 V. Babcock 975 V. Bard 745, 793 w. BuU 793 V. Burgott 1220, 1223 V. Cadwell 821 V. Clark 1074 V. Collins 1188 1). Cummings 377, 378 ». Davenport 793 V. De Lancy 663 V. Dickenson 793 t-. Dills 824 t;. Esty 127, 691, 692, 1126, 1128, 113a V. Flesher 254 V. Gilchrist 1224 V. Griswold 745 B. Hill 674 V. Jacksonport 631 V. Morse 346, 821, 1142, 1161 V. Phelps 793 II. Ramsay 793 V. Roberts's Ex. 777, 1135, 1137 t). Rosevelt 668 V. Sassaman 254 V. Schoonmaker 745 V. ShafEer 1116 V. Shepard 127, 335, 341, 694, 1132 V. Stoetzel 254 V. Streeter 872 V. Thomas 914 V. Van Zandt 1188, 1192 V. WendeU 746 V. West 1213 V. Winslow 793 V. Wood 746 V. Wren 262 Jacksonville v. McConnell 103 Jacob V. United States 1198 Jacobs V. Porter 721 Jacques v. Kopman 421 James v. Du Bois 1193, 1197 James's Lessee v. Gordon 125, 1108 V. Stookey 383 Jandon v. McDowell 905, 908 Janes v. Reynolds's Adm. 88 Janesville v. Markoe 223 Jaques v. Nixon 793 Jaquith v. Putney 182, 261, 541, 549, 884 Jarrot v. Jarrot 1189, 1191 Jarrott v. Vaughn 706 Jarvis v. Peck 970, 992 V. Silliman 445 Jasper County v. Wadlow 985 Jay V. Oxford County 1007 Jayne v. Gregg 905, 911 Jefferson's Estate 306 XXXIV TABLE OP CASES, Section Jefferson Branch Bank v. Skelly 24 JeSerson CSty ». Whipple 477 Jefferson County Com'rs v. John- son 204, 302, 763 Jeffrey v. Brokaw 920, 945, 948, 1146 Jeffries v. Clark 223 Jenkins u. Andorer 45 I/. Rock County Sup. 526, 1056, 1058 V. Sharpf 247, 1083 Jenks V. Wright 398, 487, 715, 1125 Jennings v. Collins 278 I). McDowell. 254, 1133 V. Rudd 1054 Jesse V. Preston 125, 127, 1128, 1131, 1132 Jiska V. Ringgold 830 Job V. Tebbetts 196, 286, 291, 292, 339, 344, 377, 385, 389, 1099, 1100 John Street, Re 1143 Johns ». Thomas 559 Johnson v. Ballou 944 V. Brown 685 V. Chase 331, 541, 734 ». Elwood 846, 869, 1133, 1140 V. Fitch 800 V. Goodridge 204, 205, 869 V. Hahn 342 V. Howard 335 V. Lyon 218 V. Mclntire 260, 335 V. Smith 576 V. Stagg 793 Johnson's Lessees v. Mcintosh 16 Johnston v. Jackson 937, 1133 V. Johnston 945 V. Macon 103 V. Oshkosh 298, 1057 V. Smith's Adm. 582 Johnstone i'. Scott 223, 836 Jolland V. Stainbridge 963 Jones V. Bridgeport 264 V. Burford 337 ». Childs 793 V. Collins 713, 728 V. Davis 586 V. Devore 976, 1164 V. Dils 1147 V. Driskell 534 V. Estis 227 V. Fales 1226 V. Gibson 668, 822, 842, 1039 V. Gillis 321, 353 V. Johnson 312, 994 V. Jones 1196 u. McLain 344 V. Randle 895 V. Smart 141 V. Stanton 671 V. Tiffin 887 V. Water Com'rs 103 Section Jones ». Welsing 838 Jones's Heirs v. Perry 90 Jordan ». Brown 723 i;. Robinson 1206 0. Rouse 1132 V. Woodward 51 Journey v. State 159, 1216 Joyner v. Egremont Third School District 314, 328 Jndd V. Anderson 249, 876 t>. Fox Lake 328, 1056 ». Mosely 718 Juderine v. Jackson 127, 165, 449, 653, 881 Judson V. State 131, 357 Julien V. Ainsworth 821 Jurey v. Allison 1072 Jury ti. Day 593 Justice V. Logansport 991 (Justices' Opinion. See Opinion of Justices.) K. Eahl V. Love 825 Kaiser v. Harris 999 Kane's Adm. v. Garfield's Adm. 1105 Kansas Indians, Re 812 Kansas Pac. R. Co. v. Frescott 818 V. Russell 1057, 1058 Kansas State Agr. Col. u. Hamilton 36 V. Linscott 971 v. Webster County 801 Kansas Ter. v. Reyburn 335 Karr v. Washburn 704, 713 Keane v. Cannovan 237, 1119, 1132, 1149 Kearney v. Taylor 950, 952 Kearns v. McCarville 678, 735 Keating v. Williams 254 Keely v. Sanders 639 Keene v. Barnes 501, 529 V. Houghton 127, 506 Keepfer v. Force 762 Keith V. EstiU 1205 II. Freeman 331 Kellar i-. Savage 205, 869 Keller v. Auble 571 Kelley v. Corson 298, 316 KeUogg V. Ely 1058 V. Oshkosh 1058 Kellogg's Lessee v. McLaughlin 435, 449, 507, 1101 Kelly V. Craig 199, 204, 332, 447, 501, 1101, 1102 V. Hunter 1077 ». Medlin 1169 Kelly's Ex. t>. Connell's Adm. 1116 Kelsey v. Abbott 165, 237, 263, 581, 1164 TABLE OP CASES. XXXV Section Kelso 1). Boston 482 Kempe's Lessee v. Kennedy 354, 355 Kemper v. McClelland's Lessee 132, 312, 313, 319, 614 Kendrick v. Farquar 807 Kenna's Heirs v. Quarrier's Heirs 1030 Kennedy v. Bigelo'w 722 V. Dailey 254, 749 Kennedy's Ex. v. Kennedy's Heirs 1013 Kenney v. Greer 354, 1173 Kenny v. Harwell 23 Kensington Uist. Com. v. Keith 1215 Kent V. Atlantic De Laine Co. 175 V. Brown 929 V. Kentland 103 Kentucky Sem. v. Payne 1218 Kenworthy v. Austin 717 Kepley v. Jansen 520 Kernion v. Hills 1190 Kerr v. Tripp 559 Kerrison v. Cole 552 Kerwer v. Allen 660, 562 Kessey v. Connell 616 Ketchem v. Mullinix 755 Kezer v. Clifford 591 Kibbie v. Williams 910 Kiger v. Coats 488 Kilbv Bank. Ee 1222 Kilpatrick v. Byrne . 1202 V. Sisneros 939 Kimball v. Ballard 915 V. Rosendale 950, 953 Kinderliook Com. v. Claw 397 King V. Archbishop of Armagh 1200 V. Aroostook County 44 1). Bedford LeTel Corp. 170 V. Cunningham 237 i;. Dist. of Columbia 554 V. Harrington 1019 f. Hensey 465 V. Hogg 1190 B. Jukes 1238 V. Madison 103 V. Poor Law Com'rs 1201 0. Potter 768, 1019 V. Whitcomb 331 ». Young • 1188 Kingman v. Glover 341, 464 Kinney v. Beverley 95, 196, 219, 398, 448, 508, 773, 1035, 1128 V. Doe d. Laman 201, 203, 285 V. School, &C. Land Com'rs 730 V. Zimpleman 118 Kinsworthy v. Austin 827 V. MitcheU 277, 822 Kinyon v. Duchene 1057 Kipp V. Fernhold 766 V. Johnson 946 Kirby r. Shaw 28, 31, 55 Kirk B. St. Thomas Church 605 Kirkpatrick b. Mathiot 575 Section Klttanning Coal Co. v. Common- wealth 103 Kittle V. Sherwin 340 Klock V. Cronkhite 793 Knight B. Alexander 400, 766 V. Barnes 676 KnoU V. Woelkin 353 Knowlton v. Moore 425, 788 V. Rock County Sup. 24, 103, 1056 Knox B. Cleveland 862, 896, 941, 946 B. Huidekoper 269, 746, 747, 773, 774 B. Hundhausen 678 V. Leidgen 698, 992 V. Peterson 614 Koch B. Bridges 501 Kohne v. Simons 91 Koon V. Snodgrass 718, 727, 730 Koontz V. Hancock County Com'rs 200 Sramer b. Goodlander 524 Kraus v. Montgomery 724 Kreber b. Bryan 963 Kregels V. Flint 516 Krueger b. Knab 773 Krutz B. Fisher 698, 947 Kuhn B. Wellsburg Board of Ed. 1057 Lacey v. Davis 102, 205, 319, 585, 586, 869, 973, 1140, 1156 Lachman b. Clark 165, 237 Lackawanna Iron, &c. Co. v. Fales 254, 667 Lacon v. Hooper 1216 Lacy B. Johnson 959 Ladbroke v. James 355 Ladd V. Dubroca 863 La Fayette b. Jenners 103 Laflerty's Lessee v. Byers 127, 228, 233,243,419,1132 Laflin v. Chicago 321 V. Herrington 916 Lagroue b. Rains 127, 413 Lague B. Boagni 308, 929, 943 Lain b. Cook 165, 788 B. Shepardson 630, 788, 941 Laing b. McKee 718 Laird b. Heister 254, 717, 831 Lake, Re 847 B. Gray 710 B. Morse 881 Lake County v. Sulphur Bank Q. M. Co. 242, 277, 302 Lamb v. Anderson 44 V. Irwin 598, 717 Lamb's Heirs v. Gillett 1098, 1140 Lambertson b. Hogan 1022 Lammers v. Conistock 684 Lancaster v. Da Hadway 1068 XXXVl TABLE OF CASES. Section Lancaster «. Page County Auditor 705 V. Pope 1103 Landes v. Brant 793 Landon v. Litchfield 806 Lane v. Bommelmann 127, 294, 379 V. Gary 678 V. Dorman 90 V. James 642, 646, 650 V. March 223 B. Sharpe, 730 Lane County v. Oregon 66 Lanesboro v. Berkshire County Com'rs 778 Lang zr. Scott 1211 Laogdon v. Poor 127, 164, 399, 423, 449, 450, 881 V. Potter 1192 Langhorne v. Kobinson 67, 103 Langley v. Chapin, 715, 972 Langworthy v. Dubuque 18 Lanman v. Des Moines County Sup. 328 Lannes v. Workingmen's Bank 1072 Large ». Fisher 127, 777 Larimer v. McCaU 252, 254, 831 iiarkln i;. Wilson 610 Larrabee v. Hodgkins 768 La Rue v. King 923, 985 Lassiter t>. Lee 276,895,901,1068 Latham v. Edgerton 354 Lathrop v, Brittain 753 V. Howley 339 Latimer v. Lovett 1132, 1156 Laurens Dist. Poor Com'rs v. Gains 1216 Laverty v. Chamberlain 1229, 1232 V. Sexton 923 Law V. People 103, 516, 948 Lawler v. Brett 996 Lawrence i-. Fast 294, 379 V. Kennev 912, 941, 945 0. Miller" 278 p. Speed 397, 465 V. Zimpleman 781, 1067 Lawton V. United States 534 Lazaros's Lessee v. Bryson 602 Leavenworth v. Booth 103 LeBlanc v. Blodgett 262 Ledyard v. Brown 911 iiee V. Fox 571 0. Jeddo Coal Co. 844 V. Ruggles 1064, 1072 Lefevre v. Detroit 807 Lefferts v. Calumet County Sup. 1054 LeflSngwell v. White 1216 Leggett V. Rogers 7.35, 755 Lehigh Iron Co. v. Lo.wer Maoungie 103 Lfit^ach V. Jackman ^4, 717 Leland v. Bennett 681, 696 Lemon v. Chunn 499, 614, 616, 617, 732 V^ngle V. Florid^ Central R. Co. 268 Section L'Engle v. Wilson 268,273 Leper v. Pulsifer 297 Lepper v. Griswold 745 Leppo V. Gilbert 581 Leslie v. St. Louis 1055 (Lessee of A., B,, &c. See A.'s Lessee, &c.) Levert ». Planter's & M. Bank 131 Levick ». Brothei;line 704 Levy V. Smith 288 Levy Court Lessee v. Gwynn 152 Lewis V. Disher 346, 837, 941 V. England 1227, 1228 V. Robinson 571 V. Siebles 781 V. Soule 923 V. Ward 587 V. Webb 1213 ». Welch 1212 Lexington v. McQuillan's Heirs 17, 19, 24,53 Libby v. Bumham 319 V. Mayberry 766 Life Assoc, of Aqi. v. St, Louis County Assessors 109 Liggett V. Long 992, 1023 Liglit V. West 633, 997 Lightner v. Mooney 958, 959 Lincoln Park Cqm'rs i>. Chicago 613 Lindsay v. Fay 701, 864, 941, 946, 1172, 1175 Link V. Doerfer 584 Lin Sing v. Washburn 24, 34 Lisbon v. Bath 304, 318 Litchfield v. Polk Couaty 1058 Little V. Chambers 637 !;. Herndon 844, 851 V. Smith 1173, 1207 Liverpool Ins. Co. v. Massachusetts 65 Livingston v. Albany 23, 103 V, De Lancey 668 V. Hollenbeck 1055 V. Paducah 36 V. Van Ingen 156 Livingston's Lessee v. Moore 99 Livingston County v. Darlington 44, 55 Lloyd j>. Bunce 632, 704 V. Lynch 571 Loan Assoc, v. Topeka 10, 38, 39, 43, 46 Look V. Mailer 1187 Locke V. Catlett 1002 V. Dane 950, 952 Lockhart v. Harrington 24 Lockwood V. St. Louis 1055 Loftin V. Nat. Bank 103 Logansport v. Humphrey 611, 1005 V. Seybold 29 Logwood: «• Planters' & M. Bank 131, 1029 Lohrs V. Miller's Lessee 821 TABLE OF CASES. XXXTll Section Lombard v. Antioch Col. 1068 London v. Wilmington 103 Long V. Barnett 219, 788, 1148 V. Long, 378 V. Smith . 682, 710, 995 V. Wolf 679 Longfellow v. Quimby 614 Loomis V. Los Angeles County 1005 V. McClintock 146 V. Pingree 541, 827 Lorain v. Smith 497, 852 Lorillard v. Munroe 825 Loring t;. Halting 1216 Lot No. 172, Re 413, 426, 427 Lntt V. Boss 614 Loud V. CliarlestoWn 1051 V. Penniman 553 Loudon I'. Wood 1032 Loughbridge v. Harris 51 Loughridge v. Huntington 439 Louisiana v. Pilsbury 103 Louisville v. Bank of Ky. 614, 1097 V. Commonwealth 36 Louisville & N. A. R. Co. v. State 103 V. Warren County Com'rs 1057 Louisville & P. Canal Co. v. Coin- monwealth 807 Love II. Gates 1132 V. Welch 497, 792 B. Wilbourn 452, 488, 547, 802 LoVejoy v. Lunt 505, 541, 549, 616 Lovelace vl Betryhill 985 Lovingston v. Wider 613 Low V. Lewis 814 V. Little 944 V. Rogers 1205 Lowe V. Weld 201, 204, 869 Lowell V. Boston 45 V. Oliver 13, 34 ». Wentworth 299 Lucas V. McEnerna 671 V. Tucker 950 Ludden v, Hansen 487 Ludeburg v. McGuire 1072 Ludlow V. Ludlow 1000 LufEborough v. Parker 398, 981, 1104 Lufkin V. Galveston 801 Lumsden v. Cross 12, 24, 1140 Lunenburg v. Heywood Chair Co. 788 Lunt V. Wormell 255 Lusk V. Harber 393, 394, .395 Ly brand i>. Haney 585, 586, 675, 715, 774, 941 Lycoming v. Union 44 Lyerly v. Wheeler 1136 Lyford v. Dunii 541 Lyle V. Jacques 948 Lyman v. Philadelphia 233. 715, 1102 Lynam v. Anderson 206, 277, 294 Lynch, Ex parte 297 V. Brudie 1022 Section Lynde v. Melrose 1006 Lyon V. Burt 1132 V. Hunt 127, 1058 V. Jerome 1238 V. Kane 911 V. Strong 488 Lyon County Com'rs v. Goddard 241, 1005 M. Mack V. Jones 13, 613, 614, 616, 808 V. Price 790 Mackie v. Cairns 622 Macklot V. Davenport 1058 Macon v. Macon & W. R. Co. 1225 Madara v. Eversdale 264 Madden v. Cooper 439 Madison County v. Bartlett 327, 1190 V. Brown 1068 Madisoh County Court v- People 23, 103, 614 Madland v. Benland 777 Madson v. Sexton 417, 523, 852 Magee v. Commonwealth 24 Magill V. Martin 610 Magner v. Hibernia Ins. Co. 591 Major 1!. Brush 759 Malcom t;. Rogers 1202 Mallory v. French 570, 1095 Maloney v. Mahai- 348 Maloy V. Marietta 24 Maltby v. Reading & C. R. Co. 30 Manly V. Gibsoii .376, 390, 393 Mann v. Utica 267, 326, 473, 1055 Manseau v. Edwards 639, 940 Maple V. Vestal 277 Marbury v. Madison 70 Marchant v. Langworthy 465 Margate Pier Co. v. Hannam 170 Margraff v. Cunningham's Heirs 548 Marin v. New Orleans 416, 989 Mariner o. Saunders 1099 Marks v. Pardue UnivelrSity Trs. 44, 55 Marr ». Enloe ' 304 Marsh i). Chesnut 221, 809, 395, 468, 599 950 V. Clark County Sup. 103, 207, 862 V. Nelson 223, 948 V. Yellowly 1228 Marshall, Ex ptaie 54 ». Benson 204, 285, 787 V. Donovan 103 Martin v. Aston 44 V. CuTtbn 345 V. Cole 306, 527 V. Lucey 452 V. Mansfield 260, 270 V. RagSdille 569 V. St. Lilke's Par. Tax Col. 329, 1227 XXXVlll TABLE OP CASES. Section Martin v. Snowden 544, U26 V. Swofford 593 Marx V. Hawthorn 753, 844, 847 Mason ». Crowder 790 ■/. Fearson 127, 132, 537, 617, 841, 1217 V. Finch 1192, 1193 a. Eoe d. Woods 303, 1 125 V. Rogers 1219, 1220 Massie v. Watts 1138 Massie's Heirs' Lessee v. Long 229, 1101 Masson v. Chicago 826 Masterson v. Beasley 704, 707 Mather v. Hutchinson 718, 1054 Matteson v. Kosendale 207 Mattingly v. Dist. of Columbia 950, 952 Matthews v. Ansley 488 V. Buckingham 710 w. Light 127,598,1132 Matthews's Iiessee t>. Thompson 243 Maul V. Rider 571, 575 Maumus v. Beynet 966, 975 Maxcy v. Clabaugh 286, 508, 635, 742, 754, 787, 1073 Maxfield v. Willey 608 Maxson v. Huston 928 Maxwell v. Paine 299 t. Palmer 1065 May V. Holdridge 325 Mayenno v. MiUaudon 1077 Mayer v. Peeples 488, 956, 999 Mayes v. Erwin 36, 37 Mayhew v. Davis 135, 303, 335, 339, 344, 470, 1063, 1132 Mayo V. Ah Ley 363, 802 .,. Foley 282 V. MarshaU 721 ». Wilson 87, 156 V. Woods 954, 962 Mayor, &c. of New York, Re 10 (Mayor & Common Conncil of A. City, B. City, &c. See A. City, &o.) Mays V. Cincinnati 618 Mayson c : Banks 554 McAlexander v. Lee 1189, 1191 McAllister v. Shaw 1106 McArthur v. Nevill 1074 McBride v. Chicago 1058 McCagg V. Heacock 862 McCall V. Himebaugh 937 V. Lorimer 199, 254, 1102 V. Neely 914 McCallister v. Cottrill 895 McCampbell v. McCampbell 1013 McCann v. Merriam 522 McCarroU's Lessee v. Weeks 99, 357, 358 McCartee v. Orphan Asylum Soc. 1191, 1193, 1194 McCarter v. Neil 1077 Section McCaskell v. State 103 McCaughan v. Tatman 922 McCauslin v. McGuire 515, 610, 748 McClintock ». Sutherland 719 McClung V. Ross 358 McComb V. Bell 24 McConnell v. Hamm 45 V. Eonepel 822, 911 V. Street 916 McCoppin V. McCartney 103 McCord V. Bergautz 704, 981 McCormack v. Russell 713 McCormick v. Alexander 1226 V. Edwards 486, 994 V. Fitch 103, 297 McCoy V. Chilicothe 1067 V. Dickenson Col. 746 V. Michew 250, 786, 950 V. Turk 454 McCready v. Sexton 567, 734, 852, 1146 MoCulloch ». Dodge 716, 920, 1052, 1102 V. Maryland 10, 13, 27, 60, 61, 819 McCurdy v. Tappan 10 McDermott v. Hoffman 897, 1099 V. Scully 125, 152, 777, 784, 790 McDonald v. Maus 662, 667 V. Murphree 1066 McDonough v. Gravier's Cur. 127, 165, 462 McDonough County Sup. v. Camp- bell 1058 McDougal V. Brazil 103 17. Montlezun 704, 943 McDougald v. Dougherty 1203 McDowle, Ee 1206 McElmoyle v. Cohen 896, 943 McEntire v. Brown 790, 937 V. Durham 1136 McFadden v. Goff 971 V. Longman 83 McGahen v. Carr 127, 353, 378, 882 McGahey v. Alston 175 McGavock v. Pollack 516 McGee v. Holmes 947 V. Mathis (4 WaU.) 115, 803 McGehee v. Martin 488, 953 V. Mathis (21 Ark.) 103 McGinnis v. EdgeU 863 McGoon V. Scales 60, 814 McGregor v. Balch 169, 170, 174 McXlvoy V. Speed 354 Mclnerny v. Ree^ 614 Mclnstry «. Tanner 174 McKee v. Champaign County 376 V. Lamberton 252 McEeen v. Delancey's Estate 1190 V. Northampton County 10 McEeighan v. Hopkins 915 McEenzie v. State 1210 TABLE OP CASES. XXZIX Section McKibben v. Charlton 254 McKim V. Moody 1013 V. Somers 174 McKiiistry v. Fiersall 512 McLaran v. Moore 1002 McLaren ». Sheble 478 MuLaughlin v. Green 593, 594 V. Kain 837 V. Thompson 809, 319 McLeod V. Burkhalter 604, 953 McLuny v. Silliman 1226 McLure v. Warner 998 McMahon v. McGraw 591, 598, 941, 1054 McMillan's Lessee ». Bobbins 1048, 1121 McMillen v. Anderson 77, 83 McMinn v. Whelan 586 McNair v. Jenson 501 McNamara v. Estis 920 McPlke V. Pen 1055 McQueen v. Middletown Manuf. Co. 157, 1187 McQuesten v. Swope 531, 782 McQuilkin v. Doe d. Stoddard 319, 1047 McReynolds v. Longenberger 194, 836, 937, 950, 1102 McSpeedon v. Haws 13 McVeagh v. Chicago 28 McWhinney v. Brinker 342 Mead v. Day 488, 953 V. Gale 468 V. Mallett 650, 1176 V. Nelson 940 Meader v. Lowry 44 Means v. Osgood 881 Mecklem v. Blake 764, 946 Medford v. Learned 1213 Medley v. Elliott 910 Meek v. McClure 200 Meeks v. Whatley 675, 1083, 1158 Melody v. Reab 1227 Melvin v. Merrimac Prop. 863 Mendon v. Worcester County 1193, 1222 Merchants' Bank v. Cook 1195, 1198 Meredith v. Phelps 683 Meriwether v, Garrett 115 Merriam v. Hem pie 1002 V. Moody's Ex. 614 V. Bauen 995 Merrick v. Amherst 44, 55, 103, 107 0. Hutt 277, 1148 Merrill v. Dearing 682, 729 V. Humphrey 1054, 1068 Merritt v. Farris 298 V. Thompson 261, 379, 381 Merton v. Dolphin 223, 8.S0 Mesker v. Koch 277 Messeck v. Columbia County Sup. lOKA Messing v. Kemble 840 Section Messinger v. Germain 216, 255, 286, 346, 456 Metcalf V. Gillett 161 V. Standeford 745 Meth. Prot. Church v. Baltimore 24 Metz V. Anderson 1060 V. Hipps 713 Miami County Com'rs b. Brackin- ridge 971 V. Wan-zop-pe-chee 812 Michie b. Mullin's Lessee 411 Mich. Mut. L. Ins. Co. v. Kroh 342 Middletown v. Berlin 201, 202 Middletown Savings Bank v. Bach- arach 691, 594 Miles V. Walker 398, 427 V. Williams 156 Mille Lacs County Com'rs v. Lucas 44 Millebank v. Ostertag 996 Milledge v. Coleman 895 Miller v. Childress 1187 V. Corbin 487, 997 V. Craig 24 V. Dobson 1220 V. Gorman 252 V. Grandy 1066 u. Hale 277, 327, 461, 960 V. Hurford 103, 998 V. Keene 1022 V. Miller 1222 V, Montague 996 V. Neiman 1054 V. Porter 721 V. Williams 566, 754, 1132, 1134, 1160 V. Winslow 793 V. Ziegler 581 Millikan v. Ham 995 Milliken v. Benedict 254, 831 V. Patterson 1147 Millner v. Shipley 876 Mills V. Charleton 325, 613, 951, 1068 V. Cook 103 V. Goodsell 604 V. Johnson 468, 1058 V. Scott 219 V. St. Clair County 1197 Milner v. Clarke 429 Miltenberger v. Weems's Heirs 596 Miltimore v. Rock County Sup. 1058 Milwaukee & St. P. B. Co. v. Craw- ford County Sup. 807 V. Kossuth County 217, 307 Milwaukee Fire Dep. ». Helfenstein 103 Milwaukee Iron Co. v. Hubbard 257, 1054, 1056 Miner v. Clark 678 Miner's Lessee v. McLean 848, 463, 1101, 1132 Minor v. Mech. Bank of Alexandria 1188, 1202 xl TABLE OP CASES, Section Minor v. Natchez 125, 127, 397, 398, 453, 1128, 1135 Minot V. Phila. W. & B. R. Co. »M} Mintum v. Smith 1067 Missouri Biver, &a. B. Co. v. Blake 1057 ». Morris 1057 V. Whcaton 1056, 1057 Mitchell V. Bratton 254, 948 V. Deeds «50, 952 V. Etter 902 V. Green 730 V. Maxwell 498 ». MitcheU 1234 V. Smith 1212 V. Williams 10 MJTf 6. Ross 479 V. Whitlock 303, 346 Moale V. Baltimore 278 Mobile V. Stonewall Ins. Co. 103 Mobile & G. R. Co. o. Peebles 1056 Mohawk & H. R. B. Co. ». Clute 1056 Moingona Coal Co. v. Blair 922, 923, 988 Monk V. Corbin 922, 923 V. Jenkins 465 Monson v. Chester 143, 773, 1220, 1224 Montgomery v. Birge 782 V. Burton 704 V. Landusky 963 Montgomery County Bd. of Rer. V. Montgomery Gas Light Co. 36 Monticello Sem. v. People 36 Moody ». Fleming 914 V. Hoskins 729 Moore v. Alleghany City 328, 331 V. Baltimore 930 V. Brown 127, 134, 138, 437, 488, 526, 790, 864, 906, 1125 V. Cable lOlO V. Fayetteville Com'rs 32 V. Hamilton 1187 V. Harris 778 V. Houston 1216 V. Moss 1205 V. Patch 10, 452 V. Titman 566, 572, 593, 594, 911, 916 Moore's Lessee v. Vance 1205 Moorhoase v. Bowen 467 Mora V. Nunez 549 Moreau v. Detchemendy 1125 Morford v. Unger 18 Morgan v. Camp 377 V, Louisiana 115, 811 Morgan County Com'rs v. Hendricks County Com'rs 217 Morrill v. Swarz 366, 376 ». Taylor 207 Morris v. Crocker 127, 1132 V. Davis 312, 430 Section Morris v. Joseph 598 V. Himelick 464, 900 V. Miss. River Logging Co. 439, 940 V. Robey 539 V. TerreU 1013 Morris Canal, &c. Co. v. Jersey City 1055, 1058 Morrison v. Bank of Commerce 342, 569, 595 V. Barksdale 1190 V. Jacoby 1004 V. Kelly 826 V. Larkin 103 V. McLauchlin 273 V. Norman 684, 836, 862, 911, 915, 916 V. St. Paul 1066 Morrow v. Dows 593 Morse w. Presby 355 Mortlock V. BuUer 674 Morton v. Edwin 161 V. Harris 629, 981 V. Reeds 99, 127, 131, 1134, 1140 V. Waring's Heirs 602, 1132 Moseley v. Tift 1227 Moss V. Mayo 883 V. Shear 165, 556, 566, 581, 586, 788, 1148, 1149 Mott V. Pa. Cent R. Co. 17, 115, 806 Motz V. Detroit 24, 1068 Moulton V. BlaisdeU 266, 398, 446, 619, 1144 V. Doran 528 V. New York 1073, 1216 Mouys V. Leake 622 Mt. Carbon Coal & B. Co. v. An- drews 1054 V. Blanchard 1057 Mowry v. Blandin 895 Mullanphy's Heirs i>. Simpson 963 Mulligan v. Hintrager 719, 722 MuUikin v. Reeves 277 Mundee v. Ereeman 844, 903 Municipality No. 2 v. Dubois 103 Munson v. Minor 1054 Murdock v. Milner 598 Murphy, Ee 1204, 1209 V. HaU 416 Murray v. Charleston 66 V. De Rottenham 1012 V. Gouvemeur 1010 V. Guilford 254 2). Lehman 103 Murray's Lessee v. Hoboken Land, &c. Co. 82, 99 Muscatine v. Miss. & Mo. R. Co. 23 Musgrave v. Brady 1234 Musselman v. Logansport 326, 950 Mussey v. White 465, 11.32 Myers v. Bassett 974 V. Coonradt 926 TABLE OP CASES. Xli Section Myers v. Copelaad 1052 ». Entriken 612 I). Foster 1227 Mygatt V. Washburn 218 Myriok 0. Hasey 1210 N. Nalle's Rep. v. Fenwick 127, 196, 199, 301, 303.398,431,601, 1132 Nancarrow v. Weathersbee 301, 1132 Nashua Say. Bank t>. Nashua 36, 329 Nashville v. Althorp 34 Nason v. Ricker 416, 526 Natchez o. Minor 125, 145, 1135 National Bank of Cleveland v. lola 10, 326, 950 Neal V. Frazier 570 V. Moultrie 1228 V. Spooner 790 Negley v. Breading 254 Negus V. Yancey 714 Neil V. Rozier 713 Neiswanger's Lessee v. Gwynne 977, 1015 Nelson v. Allen 1014 V. Brodhac 758 V. Central Land Co. 712 V. Cenison 1212 V. Goebel 898 li. La Porte 44 V. Pierce 281, 304, 443,- 1102 V. Kountree 326, 734, 795, 950 Nestor v. Busch 999 Nevada v. Gracey 119 Nevin v. Bailey 895 Newburgh, &c. Tump. R. v. Miller 1202 Newby v. Brownlee 759, 971, 1055 NeweU v. Wheeler 166, 258, 472, 1143, 1162 New Haven Toll Br. Co. v. Osbom 329 New Jersey v. Wilson 806, 809 Newland v. Marsh 945 New London v. Brainard 44 Newman v. Livingston County Sup. 328 New Orleans v. Arthura 36 V. Canal & Nav. Co. 103 V. Canal Bank 103 V. Clark 44 V. Commercial Bank of K. O. 103 17. Dunbar 103 V. Klein 103 V. Nat. Bank 103 V. Orphan Asylum 103 V. St. Charles, &c. Co. 103 V. Turpin 103, 613 V. United States 1138 New Portland v. New Vineyard 1209 Section New York v. Bailey 44 New York & Erie R. Co. ». Sabin 36 New York & Harlem R. Co. i>. Lyon 345 JJew York Firemen Ins. Co. u. Ely 220 New York Indians, Be 812 New York Prot. Episc. Pub. School, Be 24, 85, 99, 352 Nichol V. NashviUe 24, 614 Nichols V. Bridgeport 24 V. McGlathery 919 t;. Nichols 1038 V. Walker 802 V. Wells 1193, 1223 Nickodemus v. East Saginaw 328 Noah V. Dickenson 793 Noble V. BuUis 717, 725 V. State 353, 486, 1196, 1222 Noland v. Busby 449, 1085 Norridgewock v. Walker 204 NoiTis V. Russell 301, 1099, 1125 North V. Wendell 773 Northampton County ». Lehigh Coal, &o. Co. 103 Northern Ind. R. Co. v. Connelly 24 Northorp's Lessee «■ Devore 674 Northwestern University v. People 115, 803 Norton v. Friend 610 V. Ray 450 V. Simmes 622 Norwich u. Hampshire County Com'rs 44, 328 Nougues V. Douglass 44 Noyes v. Haverhill 488 Nycum v. Raymond 679, 685 Nye V. Denny 893 o. Oberich v. Gilman 276, 1025 Obert V. Hammel 354 Obion County Court v. Marr 304 O'Brien v. Coulter 127, 544, 841, 1072, 1132 O'Byrne o. Savannah 13, 613 ■ Ockendon u. Barnes 743 O'Connor v. Mullen 881 Oconto County v. Jerrard 862 O'Day V. Bowker 700 O'Donnell v. Bailey 115, 805 O'Donohue v. Hendrix 516 Ogden V. Harrineton 423 O'Grady v. Bamhisel 277, 316, 1149 O'Hare v. Dubuque 18 O'Hern v. Hibernia Ins. Go. 854 O'Kane v. Treat 24, 103 Olcott t'. Fond du Lac Sup. 49 V. State 879, 384 Oldhams v. Jones 598, 1132 Oliver v. CrosweU 682 xlii TABLE OP CASES. Section OUver o. Robinson 275, 876, 1147 V. Washington Mills 13, 64 V. White 36 OUeman v. Kelgore 576 Olmstead v. Camp 51 V. Henry County Sup. 1057 V. Tarsney 726 O'Neal V. Boone 905, 911 V. Va. & Md. Br. Co. 34, 277 Ontario Bank v. Bunnell 328, 329, 616, 1227 Opinion of the Attorney-General 60, 674 Opinion of the Justices 17, 24, 38, 60, 1193, 1194, 1209 O'Reilly v. Holt 604 Ormsby v. LouisTille 440 Orono 0. Veazie 241, 727, 1148 Orr V. Cunningham 704, 831 V. Travacier 486 V. Wiley 554 Ortman v. Giles 233 Orton V. Noonan 226, 278, 526, 795 836, 846, 953 Osborn v. Bank of United States 60, 819, 1057 Osborne v. Humphrey 806 0. Mobile 18, 613 Osterburg v. Union Trust Co. 480 Oswalt V. HalloweU 816 Otis Co. V. Ware 297 Otken V. Lamkin 44 Otoe County v. Brown 998 Ottawa V. Barney 1068 V. Spencer 23, 24 V. Walker 1058, 1060 Ottawa County v. Nelson 103 Ould V. Richmond 34 Overing v. Foote 325, 465, 639, 1056 Overman v. Parker 849, 1125 (Overseers of A., B., &c. See A. Overseers, &c.) Owens V. Vanhook 252, 831 Owners of ground, &c. u. Albany 397 P. Paehett v. Bancroft 152 Pacific Hotel Co. v. Lieb 948 Pacific R. Co. V. Cass County 807 V. Maguire 115, 805 Pack V. Crawford 782 Packard v. New Limetick 1005 V. Richardson 1209 V. Tisdale 335 Page V. Webster 571, 672 Page's Case 1033 Paine v. Libby 477 Paine's Lessee v. Mooreland 354 Palmer v. Boling 817, 1056, 1066 Section Palmer v. Napoleon Tp. 1054, 1068 V. Rich 1054, 1055, 1056 Pancoast v. Ruffin 1203, 1226 Para Iron Co., Ex parte 793 Parham v. Decatur County Inf. C. Jus. 99, 327, 1143 Paris Trs. v. Berry 328 Parish v. Eager 341, 964, 1054 u. Golden 196, 207, 293, 304, 33I5 881 V. Stevens 937, 945 Park V. Tinkham 488 Parker v. Baker 174 V. Baxter 972 V. Challiss 1058 V. Cochran 277, 523, 681 ». Doe 1125 V. Matheson 1008 V. Redfield 806 V. Rule's Lessee 127, 335, 341, 398 V. Sexton 321, 331, 523, 734, 1146 V. Smith 341, 1100, 1153 V. Winsor 60, 285, 812 Parkersburg v. Brown 45 Farkhurst v. Van Courtlandt 1013 Parks V. Miller 366 Parsons i-. Cliamberlin 1216 Passaic & H. Bridges v. State 114 Patrick v. Davis 416, 1148 V. Marshall 1013 V, Sherwood 576 Patten v. Green 234 Patterson v. Blackmore 252, 254 V. Brindle 704, 728 V. Jenks 1138 i;. Philbrook 950 V. Winn 1138 Pattison v. Tuba County Sup. 14 Patton V. Long 210, 254, 820 Paul V. Fries 272, 748 V. Hussey 355 ». Virginia 65 Paulina's Cargo ». United States 1186, 1190 Paulson V. Rule 479 Payne p. Anderson 1018 V. Danley 284, 540, 675 Payson v. Hall 168, 178, 181 Peables v. Hannaford 1215 Peacock v. Bell 354, 355 V. Carnes 996 Peake v. Columbia County Sup, 44 Pearce v. Atwood 1189 V. Tittsworth 790 Pearson v. Love joy 678 V. Robinson 559 Pease v. Howard 1205 V. Lawson 934 V. Whitney 1222 Peck I'. Sexton 923 I Peckham v. Millikan 277. 965, 1004 TABLE OF CASES. xliii Section Peet V. O'Brien 998 Peirce v. Boston 10, 835 II. Weare 540, 918 Pejepsoot Prop. (<, Ransom 1110 Peun V. Clemans 127, 526, 527, 704, 721, 725, 802 Pennell v. Munroe 278 Pennington v. Castleman 1205 Fennock v. Dialogue 1207 Pennsylvania Bank v. Common- wealth 13 Pentland v. Stewart 301, 303, 331, 456 People V. Adam 636 ». Allen 44, 309, 468 V. Auditor-General 111 B. Black Diamond Coal M. Co. 60, 103, 807 ' w. Board of Ed. 44 «. Brooklyn 11, 17, 24, 26, 57 B. Burr 13, 44 B. Cady 527 V. Canty 613 B. Castro 257, 1083 B. Central Pao. R. Co. 35, 819 ». Chapin 1007 V. Chenango Sap. 218, 825 B. Chicago 613 B. Clark 1218 V. Cohen 60 B. Coleman 24 B. ColUns 174, 176 V. Columbia County Sup. 44 B. Crockett 247 B. Culverwell 246 V. Detroit 613, 721 V. Doe, G. 1034 (36 Cal.) 36, 353, 814, 1160 B. Donnelly 816 ». Eddy 807 V. Empire, &e. M. Co. 379 V. Flint 237 B. Fox 353 B. Frisbio 60 B. Gerke 103, 807 B. Goldtree ' 326, 950 B. Hagadom 522 B. Halsey 331 ». Hammond 623, 962 B. Hastings 183, 196, 1084 V. Haupt 219 B. Haws 13 V. HoUaday 250, 950 ». HoUey 468 B. 111. & Mich. Canal Com'rs 139, 1186, 1188, 1191, 1192, 1193 B. Jones 206, 219 B. Koeber 355 8. Kohl 329 B. Latham 103 B. Lawrence 24 B. Leet 246 Section People V. Lynch 950, 963 V. Mariposa Co. 237 B. McAdams 45 B. McCreery 103. 298. 326, 468, 807 B. McCune 950 V. McDonald 952 V. Miner 328 8. MitcheU 1143 V. Morse 246 B. New York 697,1073,1161, 1162. 1216 B. N. Y. City Com'rs 36, 218 B. Nichols 321, 366 B. Nugent 298 B. Otis 352, 953 B. Owyhee M. Co. 816 V. Pacific R. Co. 819 II. Parks 54 8. Pearls 194, 209, 257 8. Peck 468 V. Pico 237, 250 8. Bains 285 V. Riggs 714 8. Roper 807 8. Salem Tp. Board 10, 17, 35, 48,51 V. Salomon 44, 613 V. San Francisco Sav. Union 286, 294, 326, 379, 1099, 1101 8. Seymour 10, 250, 950 B. Shearer 60 B. Shimmins 278 8. Sierra Buttes Q. M. Co. 197, 258, 282 8. Soldiers' Home 103 V. SUhl 481 V. State Treasurer 10 8. Stevens 1211 V. Todd 950, 952 B. Townsend 103 B. United States 62, 815 B. Utica Ins. Co. 1188, 1191, 1193, 1197, 1202, 1220, 1223 8. Walsh 685 8. Westchester County Sup. 1143 B. Whartenby 329 B. Whipple 263 8. Whyler 12, 23, 103, 807 8. Worthington 103 Peoria b. Kidder 12, 24 Perkin 8. Proctor 802 Perkins v. Milford 45 V. Thompson 604 Perkins's Lessee b. Dibble 127, 226, 232 Perley b. Stanley 261 Perry b. Dover 1103 V. Washburn 10 Perry County v. Selma, M. & M. R. Co. 103, 196, 298 Person b. O'Neal 223, 398. 929, 943 xliv TABLE OF CASES. Peters v. Heasely Peterson o. Kittridge Pettit V. Black Pettus V. Wallace Petty V. Mays Peyton v, Moseley Pfififtier V. Grapfel Phelan v. Boylan Phelps V. Couover V. Mead Philadelphia v. Davis V. Field V. Greble Section 516, 602 522 1002 782 682 1208 704 576 539 .852 1227 44 328 V. Miller 223, 277, 398, 715 Philadelphia & T. R. Co. v. Simp- son 1138 Phila. D. F. Assoc, v. Wood 10, 17, 41 Philleo V. Hiles 862 Phillips V. Hudson 1005 V. Jefferson County Sup. 328 V. Myers 956 0. PhiUips 164, 1132 i». Sherman 727, 1132 V. Stevens Pt. 328 V. Zerbe llun, &c. Imp. Co. 566 Phippen v. Stickney 559 Phoebe v. Jay 70 iPiatt V. St. Clair's Heirs 596 Pickering v. Lomaz 416 Picket ». Allen 488 Pickett V. Breckenridge 521 V. Hartsock S77, 382 Picot V. Page 572 Picquet v. Augusta 1065 Pidgeon v. People 352, 379 Pier V. Prouty 637 Pierce, Re 1228 V. Benjamin 488, 604 V. Boston 10 ». Burroughs 971 V. Hall 449, 658 V. KimbaU 1208 V. Richardson 261, 423 V. Schutt 819, 1068 V. Sweetser 402, 445 V. Weare 186 Pigot V. O'Halloran 682 Pike V. Hanson 178, 179 V. Jenkins 1227 V. Middleton 44 l». People 346, 349 V. W^assell 971 Pillow V. Roberts 902, 943, 1140 Pillsbury v. Humphrey, Aud.*Gen. 950, 1054 Pme Grove v. Talcott 49 Finkham v. Morang 646 Pinney v. Fellows 806 Pipes V. Farrar 947 Pitkin V. Yaw 376, 384, 390, .391, 392, 528, 529, 794, 875, 876, 878, 886 Section Pitman o. Brownlee 1128 V. Flint 1206 Pitts V. Booth 60, 346, 398 Pittsburg's Appeal 477, 986 PittsbMg, Ft. W. & C. R. Co. o. Clucago 27, 379 V. Commonwealth 33, 37 Pittsfield V. Barnstead 219, 1100, 1119 Pittstown Ov. V. Plattsburgh Ov. 498 Pixley V. Huggins 1066 Planters' & Merch. Bank v. An- drews 119? Planters' Bank of Tenn. v. Black 1210 Piatt 0. Rice 807 V. Stewart 151, 1099 Pleasants v. Scott 697, 788, 790, 898 Plumer v. Marathon County Sup. 207, 951 Plymouth v. Jackson 1050 V. Painter 170, 174 Plympton V. Sapp 488 Poignard v. Smith 863 Poindexter v. DooUttle 766 Polk V. Hill 395, 494 V. Pendleton 1059 V. Rose 126, 341, 644, 1054, 1062, 1125, 1132 Polk's Lessee v. Wendal 1138 Pollard V. Dwight 1138 Pomeroy v. Lambeth 1013 Pond ». Negus 309, 468 Pool i>. Ellis 585, 947 Pope V. Headen 127, 398, 431, 1128, 1132 V. Macon 722 Porter v. Lafferty 566. 591 V. Norfolk County Com'rs 297 ». Rockford, B. L & St. L. R. Co. 13, 285, 1060 V. Whitney 127, 442, 450, 621, 1108 Portland v. Water Co. 103 Portland, S. & P. R. Co. v. Saco 807 Portsmouth Floating Br. Co. v. Nance ^ 1236 Portsmouth Livery Co. v. Watson 1209 Post V. Brooklyn 17, 24 Potts V. Cooley 631 Potwin V. Cades 879 Powell ». Board of Ed. 44 V. Greenstreet 985 V. Madison 165 ». Tuttle 125, 144, 166, 201 Powers V. Barr 532 V. Puller 1146 V. Penny 184, 945 Pratt V. Brown 51 V. Petrie 840 V. St. Clair's Heirs 572 Pray v. Northern Liberties 10 V. Pierce 793 Presburg v. McEwen 284, 721, 725 TABLE OP CASES. xlv Section Preston v. Browder H91 V. Van Gorder . 992 Preswick v. McGrew 521 Prettyman v. Walston 576, 971 Price !'. England 735 V. Mott 717, 725 Priestley v. Foulds 1236 Primm v. Belleville 23, 103, 807 Prince George County Com'rs «. Clarke 431,445,677,802 Prindle v. CampbeU 398, 419, 427, 467, 488, 497, 948 Pritchard v. Madren 84, 710, 949 Pritchett v. People 174 Propst V. Meadows 354 Prospect Park, Re 44 Prot. Foster Home Soo. c. Newark 12 Providence Athenaeum v. Tripp 36 Providence Bank v. Billings 13, 807, 809 Public School Com'rs v. Alleghany County Com'rs 35 Puget Sound Agr. Co. ». Pierce County 60, 816 Pugh V. Duke of Leeds 709 V. Youngblood 863, 901 PuUen ». Wake County Com'rs 13, 30 Pulliara's Adm. v. Robinson 1013 Pumpelly v. Owego VU. 1056 Purdy V. Austin 1226 Purrington v. People 948 PurseU V. Porter 880 Putnam v. Longley 1192 V. Ritchie 1013 Putney v. Cutler 746 Q. Qn^ckenbush v. Danks 1213 Quarles v. Robinson 357 Quinby v. No. Am. Coal, &c. Co. 639, 875, 1101 Quinlon v. Rogers 931 Quinn v. Kenney 719, 721 V. Quinn 582 Qnivey v, Lawrence 816 R. Railroad Tax Cases 64 Eaiey v. Guinn 294, 350, 450, 522,832, ■ 856 Ramsay v. Hommel 439, 940 Ramsey v. Hoeger 103 Rand v. Scofield 836 Randall v. Dailey 830 Randolph v. Bayne 482 ». Metcalf 329,360,379,453,1168 Ransom v. Henderson 851 Section Raplee v. Morgan 1227 Rapp V. Lowry 275 Rathbone v. Bradford 1218 Rathburn v. Acker 335 Rawle V. CoUejr T. Sup. 1058 Rawlings v. Bailey 910 ^awson V. Fox 862 V. State 1187, 1227 Ray V. Murdock 547, 846, 1140 Rayburn v. Kuhl 219, 617, 846, 881, 1154 Raymond v. Bell 354 V. Longworth 243, 1053, Rayner v. Lee 255, 822 Rea V. McEachron 674 Read v. Goodyear 1113 Reading v. Finney 250, 252, 279, 821, 950 Redmond v. Banks 814 Reed v. Crapo 788. i>. Field 1170 V. Harrison 840 V. Merriam 733, 746, 995 <,. Reber 1054, 1068 V. Thompson 852 V. Tyler 714, 1054, 1055, 1068 V. Wright 93, 1143 Reeds v. Morton 127, 135, 144, 469, 623, 1147 Reeve «. Kennedy 321, 353, 992 Reeves v. Towles 301, 1132 V. Townsend 355 V. Wood County Treasurer 12, 24 Regents of Kan. Agr. Col. v. Ham- ilton 36 V. Linscott 971 V. Webster County 801 Reger v. Shaffer 704 Regina v. Bewdley 1073 Register v. Bryan 127, 160, 465, 545, 1039 Reily v. Lancaster 60, 183, 353, 581 Reinboth v. Zerbe Run, &c. Imp. Co. 575 Rennett v. Ward 1236 Rennick v. Wallace 361, 978, 1074 Renshaw v. Iraboden 516, 1072 Rensselaer County N. L. Off v. Bull 793 Report of Commissioners, Re 611 Revenue Board u. Montgomery Gas Light Co. 36 Rex V. Barlow 1202 V. Croke 152, 153, 364, 397, 1102 V. Leicester 468 V. Liverpool 152 V. Loxdale 397 V. Manning 152 V. Sparrow 468 V. Stoke Damerel 140 Reynolds v. Baldwin 1193 V. Leiper's Heirs 1042 xlvi TABLE OF CASES. Section Eeynolds v. Lincoln S05 V. Wilkes 1174 V. Weiss 700, 814 Rhinehart v. Schuyler 87, 286, 750, 905, 1138, 1161 Rhodes v. O'FarreU 353 V. Sexton 321, 331, 523 Rice V. Bates 685 V. Haddock 678, 685, 988 V. Johnson 501 V. Nelson 705, 706, 721, 730 V. Parkman 1143 Rice's Lessee v. White 623, 963 Rich V. Palmer 704 Richards v. Cole 427, 501 V. Dagget 1192 V. Patterson 713 V. Rote 950 V. Stogsdell 823 Richardson o. Dorr 127, 650, 1107, 1132 V. Kimball 488 V. MeKinson 1013 V. State 235 Richmond v. Scott 103 Ricketts v. Hyde Park 400, 439 V. Spraker 44 Riddick v. Governor 1188, 1216 Riddle v. Messer 848 Rigg u. Wilton 1207 Riggs V. Henneherry 916 Rigor V. Frye 915 Rima v. Cowan 948, 114t) Ring V. Ewing 1142 Rising V. Granger 255, 341 Ritter v. Patch 1054 V. Worth 877 Ritz V. Bowers 509 Rivers v. Thompson 197, 221, 863, 897, 898 Riverside Co. v. Howell 355, 622 Robb V. Rowan 937 Robbins v. Barron 973 Roberson v. WooUard 273 Roberts w. Adams County 1004, 1007 V. Chan Tin Pen 528, 550, 886 V. Deeds 766, 1004 V. Merrill 722 V. Pillow 849, 1148 V. Roberts 1200 Robertson v. French 744 V. Livingston 512 Robinett v. Preston's Heirs 1117, 1133 Robinson, Ex parte 103 !i. F. N. Bank of Cedar Rapids 735 t!. Gaar 1055 V. Hardcastle 777 V. HuflF 1036 V. Rowan 1213 V. Williams 254, 667 Robson V. Osborn 1024, 1169 Section Roby V. Chicago 278 Rochester v. Rush ■ 36 Rockbald v. Barnes 1125 Rockingham T. C. Sav. Bank v. Portsmouth 36, 329, 1054 Rockland & V. Coal Co. v. Mc- Calmont 709, 1133 Rockwell V. Nearing 77 Roddy V. Purdy 488 Roe i;. Prideaux .841 V. WiUiston 269, 278, 626, 571, 734 Rogers, Me 1209 V. Burlington 47 V. Dill 354 V. Goodwin 1109, 1192 V. Greenbush 328 u. Johnson 663, 716, 937, 945, 948 vt Lockett 598 V. Park 367, 358 ». Rutter 704, 705, 727 V. White 318 Rome V. Mo Williams 103 Rome & W. R. Co. v. Smith 219 Konkendor£f'». Taylor's Lessee 125, 127, 164, 184, 187, 258, 398, 410, 422, 425, 438, 488, 540, 617, 1132 Rose V. Himely 354 Roseberry v. Huff 1058 Rosenburger v, Schull 254 Ross V. Coat 911 V. Doe d. Barland 978, 1232 V. Irving 1013, 1014, 1016 V. Mabry 1002 V. Milwaukee 951 Rossire v. Boston 620 Rothwell V. Dewees 671 Rougelot i'|. Quick 249 Eoundtree v. Galveston 103 Rowe ;;. Blakeslee 802 Rowland v. Brown 6.S1, 686 V. Doty 821, 1063, 1142,1156, 1161 Rnbey v. Huntsman 601 Rudd V. Woodbridge 719 Rudock V. Gordon 385 Rue V. Alter 1187 Ruggles V. Lawsou 793 V, Washington County 1189 Runnels v. State 70 Russel V. Reed 602, 610 Russell V. Deshon , 482 V. Dodson 705 V. Dyer 198 V. Hudson 427 V. Mandel 862 V. Mann 166, 1088, 1096 V. St. Paul, M. & M. R. Co. 400 V. Werntz 277, 279, 820 Rutland v. Mendon 1204 Rutledge ». Price County 704 Ryerson v. Brown 51 V. Utley 35, 53 TABLE OP CASES, xlvii S, Section Sackrider v. McDonald 840 Sacramento v. Crocker 103 St. Anthony Falls W. P. Co. v. Greely 319, 335, 346, 398, 1032 St. Clair v. M'Clure 342 St. Joseph V. Anthoay 24 V. O'Donoghue 24 St. Joseph's Church v. Providence Assessors 86 St. Joseph Nat. Bank «. St. Joseph 294 St. Louis V. Clemens 120 V. Gorman 36, 520 I). Laughlin 118 V. Spiegel 34 St. Louis, I. M. & S. E. Co. v. Alex- ander 999, 1000 St. Louis County Court v. Sparks 309, 468 St. Mary's College v. Crowl 807 St. Peter's Church v. Scott County Com'rs 244, 807 V. Tripp 36, 526 Salem Iron, &c. Co. v. Danvers 36, 37, 615 Salisbury v. Shirley 294 Salisbury's Ex. v. Phillips's Heirs 1202, 1220 Salter v. Burlington 103 Sampeyreac v. United' States 1138 Sampson v. Marr 876, 1147 Sams V. King 639 Sanborn i>. Mueller 1020 V. Rice County Com'rs 23, 24, 103 Sanders v. Seavey 413 Sanderson v. La Salle 221 Sandford v. Decamp 802 Sands v. Davis 574, 1019 Sanfason v. Martin 201 Sanford u. Sanford 540 San Francisco v. McCain 440 V. Spring, &c. AVorks 103 San Mateo v. So. Pac. B. Co. 64 Sapp V. Morrill 756, 927, 1054, 1055 V. Walker 678 Sarah v. Borders 1214 Sargeant v. Butts 488 Sargent v. Bean 429, 948 V. Peirce 161 Saunders v. Cadwell 821 V. Springsteen 213 Savage v. Holyoke 1 132 Savannah v. Hartridge 329, 1227 V. Solomon's Lodge 36 Savings & L. Soc. v. Austin 103, 1056 Savings Bank v. Land & L. Co. 205 V. Nashua 36, 37 V. Portsmouth 36 Savings Inst. v. Makin 1214 Sawyer v. Alton 328 V. Springfield 825 Section Sawyer v. Vaughan 1005, 1133 Saxton V. Hunt 914 Sayles v. Davis 747, 992 V. Smith 488 Sayre i>. Tompkins 1054 Scales V. Alvis 127, 341, 343, 432, 451. 891 Scammon v. Chicago 102, 165 Scarborough v. Parker 467 Scarritt v. Chapman 390 Schaeffer v. People 341, 821 Scliedda v. Sawyer 598 Schefftels v. Tabert 735 Scheiber v. Kaehler 207, 208, 753, 760, 761 Schenck v. Kelley 593 V. Peay 127, 170, 201, 319, 658, 705, 727, 821, 827, 1031, 1213 Schenley v. Alleghany 24 B. Commonwealth 950, 952 Schlencker v. Risley 174, 175, 331 Schmidt v. Gatewood 129 Schneider v. Botsch 863 V. Norris 744 Schoembs v. Krieger 1077 SchofE V. Gould 431, 1106 Sehofield v. Watkins 298, 1058 School Dist. No. 15 v. Allen County 1007 Schrodt V. Deputy 342 Schultes V. Eberly 118 Schuyler w. Hull 198, 292, 1100 Schuyler County v. Mercer County 1187, 1198, 1202 Scio Dist. Board of Ed. v. Mc- Landsborough 44 Scofleld V. Collins " 1188 V. Lansing 304, 1054, 1055 Scott V. Babcock 353, 486, 1132 V. Detroit Y. M. Society's Lessee 1132, 1156 V. MilUkan 995 V. Onderdonk 1056 V. Stearns 127, 196, 205, 319, 846, 869, 1099, 1132, 1154 V. Surman 512 V. Watkins 64, 102, 192, 423, 675 V. Woodruff 965 Scovill «. Cleveland 57 V. Kelsey 624, 630 Soroggs V. 'Taylor 1013 Seager v. Kearsarge M. Co. 337, 344, 346, 466, 802, 821 Seaman v. Hammond 623 Seaver v. Cobb 583 Second N. 0. Munie. v. Dubois 103 Selden v. Coffee 766 Sessions v. Crunkilton 44 Sewall V. Jones 329, 1227, 1232 Sexton V. Henderson 1000 V. Peck 1008 xMii TABLE OP CASES. Section Seymours Hartford 806,807 W.Peters 814,348,1065 Shackford v. Newingtpn 44 Shackleford v. Hopper 844 Shaeifer v. Jack 1202 Shalemiller v. McCarty 958, 988 Shaler's Lessee v. Magin 1021 Shannon v. Bradstreet 1012 Sliarp V. Johnson 165,472, 499 V. Speir 125, 152, 613, 614, 1179, 1232 Sharpe v. Dillman 342, 1004 V. Kelly 578 Sharpless v. Philadelphia 10, 19, 47, 53 Shattuck 0. Bascom ■ 206 V. Daniels 522 Shaw V. Dennis 124, 328, 331 V. Kirkwood 531 V. Orr 246, 468 V. Peckett 10, 335 Shawler v. Johnsott 417, 852, 1076 Shawnee County v. Carter 17, 20 Sheafe v. Wait 661 Sheaffer v. M'Kabe 254 Shearer v. Corbin 844 V. Woodburn 127, 164, 704 Sheehan v. Gleeson 120 V. Good Samaritan Hospital 12, 807 Sheehy v. Hinds 488, 526, 932 Sheldon v. Van Buskirfc 331 Sheldon's Lessee v. Coates 184, 191, 427,872,1100 Shell V. Martin 1069, 1062 V. Walker 572 Shelley v. Fowle 746, 783 V. St. Charles County 516 Shelley's Case 793 Shelton ». Dunn 730, 853, 1068 Shepardson v. Elmore 579 V. Milwaukee Comity Sup. 1056 Shepherd's Fold v. New Tork 44 Sheppard v. Clark 722 Sherlock v. Winnetka 103 Sherry v. Gilmore 733, 735 . V. M'Kinley 639 Sherwood o. Phelps 793 V. Reade 125 Shiek V. MoElroy 895 Shimmin v. Inraan 127, 261, 280; 429, 530, 646 Shippy V. Eastwood 488 Shoalwater v. Armstrong 615, 617, 1166 Shoat V. Walker 790, 927 Shoemaker v. Grant County Com'rs V. Lacey 516, 634 V. Porter 716 Shorland v. Govett 840 Shortall V. Hinckley 910 Shoitridge v. Catlett 746 Section Shoup V. Cent. Br. IT. Pac. R. Co. 429, 928 Shoutz V. Evans 44 Shrewsbury v. Boylston 1236 Shriver's Lessee v. Lynn 3-54 Shumway v. Shumway 397 Sibley v. BuUis 559, 948 V. Smith 197, 205, 246, 473, 499, 732, 846, 869, 1140,1156, 1207, 1231 Sickles V. Sharp 1227 Siegel V. Outagamie County Com'rn 278, 1054, 1068 SilUman v. Frye 623, 770 Silsbee v. Stockle 208, 299, 522 Simmons v. Johnson 223 Simms v. Greer 342 Simonds v. Towne 709 Simon ton v. Hays 679 Simpson v. Edm'iston 653, 1001 Sims V. Jackson Par. 103, 328. Sinclair v. Learned 208, 299, 962, 973,. 1064, 1068 Singer's Appeal 960 Singer Manuf. Co. v. Yarger 559 Sisk V. Smith 961, 1191 Sisters of Charity v. Detroit 807 Six Carpenters' Case 840, 842 Skelly V. Jefferson Br. Bank 115, 810 Skinner v. Brown 463 V. Fulton 1150' V. Williams 780 Skinner's Lessee v. Hutton 24 Slack V. Bay 118, 335 Slark V. Highgate Archway Co. 220 Slater v. Maxwell 544, 557, 1063 Slaughter v. Commonwealth 103 Slocum V. Boston 953 Slyfield V. Barnum 679 V. Healy 684 Smetz V. Wethersbee 1218 Smiley v. Wright 961 Smith V. Aberdeen 103 V. Auditor-General 1068 V. Bodfish 127, 164, 878, 1133 V. Brotherline 217 V. Burley 37 V. Burlingame 397 V. Chapman 965, 985, 1030 V. Cleveland 734, 896, 945, 1146 V. Connelly 51 V. Corcoran 801, 1132 t'. Crittenden 468 V. Exeter 37 V. Farrelly 44 V. Ford 941 V. Gage 1068 V. Harmon 1187 V. Hileman 152, 155, 161, 773 V. Jones 845, 556, 926 V. Leavenworth County. Com'rs 1057 TABLE OP CASES. zliz Section Smith u. Lewis 691, 698, 631, 985 V. Lockwood 1205, 12U V. Ludington 964 V. Macon 704, 713 v. Messer 184, 261, 417, 489, 605, 638 V. McGrew 252 V. Moffat 1187, 1226 V. Moreman 1185 V. Nelson 411 V. Newson 953 V. Fhelps 688 V. Bead 272 V. Sanger 696 V. Saxton 1198 V. Sherry 209, 941 V. Sibson 840 V. Simpson 802 V. Smith 298, 676 V. Spooner 1179, 1232 B. State 367,876,1135 V. Stephenson 681 V. Todd 631 ». Vandyke 954 Smith's Heirs :;. Bank of Mobile 659 Snell V. Leonard 44 0. Ft. Dodge 200 Snowden v. Snowden 1212 Soens V. Racine 10, 13, 21 Solberg v. Deeorah ' 8li3 Sollers V. Lawrence 355 Solomon v. Tarver 44 Somerset v. Dighton 1192, 1218, 1220 Soper V. Espeset 722 Souter V. Sea Witch 1231 Southall V. M'Keand 1013 South Park Com'rs v. Salomon 613 Soutli Platte Land Co. v. Crete 196, 1060 Spain V. Johnson 488 Spangler i>. Jacoby 137 Spear v. Braintree 36, 299 V. Ditty 127, 184, 189, 399, 414, 449, 474, 655, 772, 867, 1100, 1107 Speed V. St. Louis County Court 819 Speer v. Blairsville School Directors' 30, 42, 44 Spellman v. Cnrtenius 283, 348, 357, 376, 377, 381, 384, 391, 394, 671, 910, 915 Spengin v. Forry 720 Sperry v. Gibson 726 Spiller's Heirs i>. Banmgard 464 Sprague v. BirdsaU 1225, 1227 V. Coenen 790, 821, 876 V. Pitt 125, 1158 o. Rovenid 1000 Spratt V. Price 274, 480, 568, 957 Sprecker v. Wakeley 864, 895, 896, 941 Spring V. Collector of Olney 44 vol.. I. — d Section Springer v. Bartle 659, 997 V. Rosette 1054 V. United States 627 Spurlock V. Allen 127, 777, 778, 1149 V. Dougherty 359, 752 Stackhouse v. Halsey 1216 Stafiord v. TwitcheU 996 Stale V. Columbns 825 Stall V. Macalester 397 Stanibaugh v. Carlin 346 Stanberry v. Sillon 1140, 1164 Staniels v. Raymond 1198 Stanley v. Smith 821, 1139 Stanwood v. Peirce 1222 Stark V. Shupp 279, 522, 1102 State V. Addison 36 V. Allen 77, 99, 321 V. Apgar 297 B. Atkins 814, 1057 V. Baker 279 V. Baldwin 1193 i;. Bank of Smyrna 806, 807 V. Beasley 1199 ». Berry 808 V. Board of Liquidation 44 V. Bowker 719, 722 V. Braura 298 V. Brewer 609 V. Burger 91, 102, 329, 1227 V. Casteel 842 V. Central Pac. R. Co. 55 V. Charleston 34, 170 V. Click -465, 1218 V. Cobb 1209 V. Cole 159, 1216 V. Columbia 103 V. Commercial Bank 112, 114 V. Commissioners 103, 730 V. Cronkhite 994 V. Cumberland, &c. R. Co. 103 V. Curran 1229 V. Doherty 950 V. Dressel 1007 V. Endom 103 V. Eureka Cons. M. Co. 294, 379 V. Falkinburge 322 V. Fields 1193 V. Findley 191 V. Foley 994 V. Gaffney 36 ». Galloway 417 K. Garland 1197 V. Garthwaite 1193, 1196 V. Gracey 119 V. Haight 814 V. Hannibal, &c. B. Co. 103, 117 V. Hardin, Collector 218, 223 V. Harmon 156 ». Herron 854 V. Houston 1007 V. Hundhausen 678 TABLE OP CASES. Section State V. Jersey City 24, 36, 127, 1054, 1132 V. Koster 120 V. Krollman 36 ». Lancaster County Com'rs 103 I.. Landiss Tp. 627, 562 LefBngwell 44 Magill 636 Manhattan Silver M. Co. 197 Maxcy 91 Maxwell 36 Mayliew 86 Mayor 1054 Mclntosli 304 Memphis & C. E. Co. 335 Messer 965 Metz 467 1107 . Milburn 1206, 1213 . Miskimmona 1205 . Montclair 948 . Moore 60 . Newark 12, 244, 325, 398, 807, 951) V. New Orleans V. N. O. Nav. Co. v. Norton V. Osborn B. Parker f. Pemberton V. Philadelpliia ». Pierson V. Piatt, Collector V. Kackley V. Railroad Corporations V. Readington Tp. Com. V. Beed V. Richardson V. Ross i>. Kowse i\ Runyon r;. Sargent V. Schaak i;. School, &c. Land Com'rs 17. Schooley 1). Scott 17. Shaw V. Simons 17. Smith 17. Solomons V. Stephenson 17. Sterling V. Tappan 17. Thompson c. Tunis 24 24 205 86 34, 807 327 103 200 273, 279, 298 1210 103 10,34 326 532, 782 36 484 103, 299 534 719, 721 730 203 152 674, 814 91 118, 683, 709, 1195 1227 1190 36 10 844 86 Union Tp. 223, 244, 262, 271, 950 United States & Canada Exp. Co. 10 Vanderbilt 271, 948 Walker 656 Wapello County 48 Washoe County 297 Section State 17. Western Union Tel. Co. 103, 299 V. Williams 335, 1197 B. Williston 269, 278, 526, 571, 734 V. Wilson 808 V. Winn 629, 6.35, 756, 1073 r. Woodside 331 I. Yancey 1230 State Agr. Col. «. Hamilton 36 17. Linscott 971 17. Webster County 801 State Auditor v. Atchison, T. & S. F. R. Co. V. Jackson County State Bank of Ark. c. Marsh State Bank of III. v. Buckmaster State Bank of Ohio v. Knoop State Bank of Tenn. v. Cooper 299 197 397 465 809 91, 1143 Steadman i7. Planter's Bank of Miss. 1140, 1148 Stead's Ex. v. Course 127, 341, 543, 1094, 1106, 1126, 1132 Stears r. Hollenbeck 566, 591, 634 Stebbins v. Guthrie 748, 958, 962, 1017 Steeple v. Downing Stein t7. Mobile Steiner v. Coxe Stephan r. Daniels Stephens v. Holmes V. Wells V. Wilkins Stephenson i-. Higg^nson V. Weeks 17. Wilson 844 24 715 948, 950, 953 719, 962 833 331 1194 799 941 Stephenson County Sup. v. Manny 328 Sternberg v. Shaffer 1116 Stetson 17. Freeman 999 t'. Eempton 44, 318, 319, 613 Stenart v. Meyer • 398, 1156 Stevens v. Cassady 713 17. McNamara 1132 . Washer 847 Strong V. Burdick 594 V. Flagler 436 Strother !■. Lucas 16 Stuart V. Kalamazoo 44 V. Palmer 35, 41, 76, 398 V. Parish 976, 978, 1074 Stubblefield v. Borders 584, 862 Stuke's Case 1013 Stull V. Moore 685 Sturdevant v. Mather 593, 746 Sturges r. Crowninshield 1226 Stnrgis First Nat. Bank v. Watkins 328 Styles V. Weir 398, 412, 429 (Succession of A.,B., &c. See A.'s Succession, &c.) Sullivan v. Donnell 497, 786 V. McLenans 571 V. Merriam 746 Sully V. Kuebl 261, 321, 331, 489, 497, 950 V. Poorbangh 1002 Summers «. Kanawha County 608, 694 Sumner v. Buel 807, 1188 (Supervisors of A. County, B. County, &c. See A. County Sup., &c.) Susquehanna Bank v. Broome County Sup. 1056 Sutton V. Calhoun 412, 429, 758, li:?8 <;. Nelson 661, 662 V. Stone 746, 863, 935 Sutton's Heirs v. Louisville 17, 24 Section Swan V. Knoxville 327 V. Whaley 631, 678 Swann v. Broome 488, 793 Sweeley v. Van Steenburg 685 Swift V. Luce 1205 Swinbourne v. Swinbourne 671 Swope I'. Prior 685 V. Purdy 812, 927 V. Saine 790, 827 Sydnor v. Palmer 590, 897 T. Tabele v. Tabele 961 Tabor v. Cook 75, 1004 Tacey ». Irwin 826, 829 Talbot V. Dent 613 Talbot's Lessee v. Simpson 1187 Talbot County Com'rs v. Queen Anne's County Com'rs 55 Tallman v. Butler County Treas- urer 815 V. Janesville 825, 951 c. White 128, 224, 226, 227, 346, 416, 767, 1161 Tarr v. Haughey 636, 10B9 Tash V. Adams 44 Tattersall v. Groote 1220 Taylor v. Allen 127, 488, 489 V. Brown 465 V. Buckner 914 V. Chandler 103 V Cole 840 V. Delaocy 1224 V. Frencli 127, 449, 651, 656, 869, 1175 V. Galloway 125, 146, 843 .. Horde 897 f. Miles 802, 927 V. Ormsby 1068 V. Palmer 12, 13 V. People 339, 344, 357, 377 V. Porter 17, 79, 83, 93, 10.32, 1143 V. Rountree 726, 1054 V. Snyder 593, 1063, 1068 i>. Steele's Heirs 701, 730 V. Thompson 1054 • V. Wright 679, 681, 763, 851 Taylor's Dev. ». Stringer 604 Taylor's Heirs v. Whiting's Heirs 1013 Taylor's Lessee v. Myers 1074 Tax Cases 806 Tax Sale of Lot n2, Se 413, 426, 427 Tebault v. Britt 953 Teele v. Green 894 Telfner v. Dillard 859 Templeton v. Morgan 486 Tenny v. Lens 103 Terrell v. Grimmel 716 Terrett v. Taylor 16, 806 lii TABLE OP CASES. Section Terrill v. Groves 2B3 Territory v. Revbnm 335 Terry v. Bleiglit 127, 1132, 1135 Thacker, Kx parte 3tS6 Thames Manuf. Co. ». Lathrop 127, 220, 221, 309, 468, 1127 Tharp K.Hart 1167 Thatcher v. People 522, 948 B. Powell 127, 151, 165, 841, 344, 348, 356, 358 Thayer ». Bond 1193 V. Mayo 821 Thein v. Stearns 140, 292 V. Voegilauder 51 Thevenin v. Sloeum's Iicssee 1026, 1104 Thibodeaux v. Keller 2H2, 758 Thicknesse v. Lancaster Canal Co. 1236 Thomas v. Lawson 1148 V. Leland 44, 55, 328 V. Stickle 630, 895, 918, 920 Thompson v. Burhaus 279, 346, 679 1). Ela 267, 760 o. Gardner 335, 336 •,. Gerrish 263 V. Lawrence 844 V. Lynch 1066 ti. Mason • 1013 V. Roe d. Carroll 617 V. Rogers 335, 458, 486 V. Sehermerhom 120 V. Schuyler 286, 745, 749 ». State 122:! V. Ware 497, 85-2 V. Wood County Treasurer 24 Thompson's Heirs' Liessee v. Gotham 398, 620, 1132 Thomson ». Ebbetts 1056 i>. Union Pac. R. Co. 819 Thorington v. Montgomery City Council 516 Thornburgh ». Cole 924 Throop w. Auditoi^Gen. Ill Thurston v. Uttle 166, 196, 292, 293, 319 V. Martin 209, 802 V. Miller 398 Thursby ». Plant 1188 Thweatt v. Black's Ex. 423 Tihbetts r. Job 196, 292, 1100 Tidd 17. Rines 360 V. Smith 445 Tide Water Canal Co. ». Archer (Md.) 1179 TJde Water Co. v. Coster (N. J.) 42, 55 Tiernan i'. Wilson 544 Tillotson V. Small 516 Tilson ». Thompson 750 Tilton D. Oregon Cent. Mil. Road Co. 294, 1066 Timm v. Harrison 103 SecUon Tippecanoe County Com'rs v. Mor- rison 84 Tisdiile ». Tlsdale 571 Titsworth r. Stout 572 Toby V. Haggerty 209 Toledo & W. U. Co. v. Lafayette 1058 Tolman v. Emerson 777, 1109, 1137 V. Hobbs 1030 Tompkins v. Corwin 745 V. Little Rock & F. S. R. Co. 477 Tonnete v. Hall 204, 1191 Torrance v. McDougald 1193, 1196 Torrey v. Millbury 126, 319, 473 Towle V. Ayer 863 Townsen v. Wilson 205 Townsend v. Downer's Adm. 1107, 1132 V. Prowattain 992 Townsend Savings Bank v. Todd 653 Townsliend v. Shaffer 727 Trainer's Succession 466 Travellere' Ins. Co. v. Patten £91 Treadwell r. Patterson 521 Treasurer of Vt. «. Clark 1215 Treat v. Orono 105, 1133 V. Lawrence 860 V. Smith 755 Trego I!. Huzzard 704 Treon's Lessee v. Emerick 230, 243. 419 Tripp V. Ide 768 Troutman v. May 1132 Trowbridge v. Horan 872 Truesdell e. Green 487 V. Rhodes ' 992, 1054 Tructt B. Randolph County Inf. Court Justices ' 944 Trulock V. Bently 678, 920 Truman v. Robinson 353 Trumble ». Square 876 Trustees of Cin. So. R. v. Guenther 951 Trustees of Cuyahoga Falls R. E. Ass. V. McCaughey 950 Trustees of 111. Industrial Univer- sity V. ChampaigD County Sup. 36 Trustees of Jacksonville i-. McCon- nell 103 Trustees of N. Y. Prot. Episc. Pub. School, Re 24, 85, 99, 352 Trustees of Schools v. Trenton 103 Tucker i-. Aiken 1701, 182, 184 V. Furgeson 807, 816 V. Lee County Inf. Court Jus- tices 326. 950, 952 Tully ». Bauer 400 Tnnbridge v. Smith 207 Turner v. Althaus 31 V. Smith 505, 982 ». Waterson 666 Turney v. Yeoman 224, 233, 243, 846, 1140 TABLE OF O&BGa. Uii Section Tattle V. Griffin 73u V. Hartweil 1226 Tweed o. Metcalf 197, 270, 325, 331, 467, 542, 585 Twiggs u. Chevallie 821, 1029 Twombly v. Kimbrough 192, 602, 5til, 1068, 1148 Tyler v. Beacher 51 V. Uardwick 948 Tyson v. School Directors 41 Union Bank of Tenn. v. State 115 Union Mut. Ins. Co. o. Dice 895 Union Pac. R. Co. ». Lincoln County 819, 1056 United States v. Briggs 1196 V. Fisher 1188, 1189, 1190, 1192 «. Freeman 1193 V. Jones 1135 t>. Kirkpatrick 465 V. Lawton 1053 D. Lee 826, 829 ». MagiU 1195 V. Morse 1234 0. Maurice 169, 174 V. Palmer 1190 V. Percheman 16 V. Sheldon 1227 i>. Taylor 1053 V. Vanzandt 465 V. Warner 1193 V. Webster 1206 V. Wigglesworth 1227 11. Wiitberger 1227 University o. People 115, 803 University of Md. ». Williams 1032 Upington v. Oviatt 948 Upton V. Holden 331 V. Kennedy 623 Urquhart «. Weaoott 398 Usher v. Taft 462 Usher's Heirs v. Pride 1044 V. Vail V. Beach 807 Vanada's Heirs ». Hopkins's Adm. 138 Van Alen v. Rogers 1010 V. Vanderpool 512 Van Allen ». N. Y. Assessors 61 Van Alstyne v. Wimple 622 Van Antwerp, TJe 527 Van Benthuysen v. Sawyer 717, 725 Van Brocklin v. Tennessee 63, 815 Vance v. Corrigan 277 V. Schuyler 86, 465 Van Cleave v. Milliken 941 Vanderbilt v. Adams Van Doren v. New York Van Kpps v. Van Epps Van Horn v. People Van Home v. Fonda SecHon 328 1055 566 103 1013 Van Home's Lessee ». Dorrance 499 Vanover v. Davis 1058 Van Rensselaer v. Kidd 1055, 1056 V. Witbeck 196, 197, 293, 304, 331 Van Santwood v. Sandford 746 Van Shaach v. Kobbins 659, 579 Van Sicklen v. Burlington 44 Van Valkenburgh v. Torrey 1227 Van Voorliis v. Budd 258 Van Wagenen v. Brown 331 Van Wormer v. Albany 354 Vanzant i-. Waddell 89 Varick v. Smith 1032 ». TaUman 125, 127, 130, 1125, 1132, 1134, 1138, 1161 Varney v. Stevens 576, 591 Varuum v. Shuler 1065 Vasser v. George 23, 184, 501, 647 Vattier v. Hinde 659 Vaughan v. Swayzie 763, 856, 876, 950, 952 Veal V. Robinson 861 Veazie Bank i;. Fenno 89 Venable v. Beaucham'p 671 Ventresa v. Smith 498 Verdery v. Dotterer 967 Vernon v. Nelson 488 Vernon's Case 156 Viele V. Van Steenberg 685 Vieley v. Thompson 1057 Villas V. Reynolds 223 Villey B. Jarreau 398,502. Virder v. Bowers 345, 855 Virginia & Tenn. R. Co. v. Wash- ington County 103 Volger V. Sidener 342 Voorhees v. United States Bank 354 Voris V. Thomas 582, 697 w. Wadleigh o. Marathon County Bank 209, 922, 941, 1070 Wadsworth i.-. Wendell 746 Waggener i>. McLaughlin 578 Wahlschlager v. Liberty 44 Wain ». Walters 1195 Wakeley r. Mohr 788 V. Nichols 678 Waldby v. Callar 931, 1005 Waldron v. Lee 217 V. McComb 125, 843 V. Tutfle 652, 899, 1118, 1128, 1132 Wales V. Stetson 1179, 1233 Walker v. Boh 782. 924 liv TABLE OF CASES. Walker v. Burlington r. Cliaptnan t). CincinDati V. Moore V. Springfield r. Wynne Wall V. Wall Wallace v. Berger V. Brown V. Porter ». Scott V. Slielton V. Young Section iOB 309, 468, 1215 47 526 103 1231 418, 540, 950 541 353, 675. 821 1074 254 24 1193 Wallace's Lessee v. Seymour 978, 1074 Wallach v. Van Riswick 971 Wallahan v. TngersoU 685 WaUingford v. Fiske 255, 522, 530, 899 Wain V. Shearman 895, 937, 945 Wals V. Grosvener 1054, 1083 Walsh V. Mattlie«f3 12, 24, 103 Walter v. Bacon 950 Walthani Bank v. Waltham 36 Walton V. Gray 821, 1014 V. Hale 756, 1117, 1132 Wambole b. Foote 788 Wands v. Brien 223, 550 Wantlan v. White 1143 Ward V. Montgomery 851, 995 V. Walters ' 753 Ward's Lessee ». Barrows 347,1116 Warden r. Fond du Lac County 1058 Warder v. Clark County Com'rs 44 Ware v. Bradford 1135 V. Little 948, 1 146 V. Thompson 626, 527, 541 Ware's Lessee v. Fisher 963 Warner v. Curran 103 V. Outagamie County 315, 1005 V. Trow 964 Warshung r. Hunt 416 Wartensleben v. Haithcock 342, 1000 Washburn v. Cutter 897, 898 Washburn Col. ». Shawnee County 807 Washington v. Miller 192 B. Pratt 398, 424, 429, 535, 617 Washington Av., Re 53 Washington Univ. ». Rowse 806, 807 Waters v. State 287, 328 V. Stewart 1207 Waterson v. Devoe 566, 567 Watervliet Tump. Co. v. M'Kean 1236 Watkins «. Eaton 704, 957 «. Inge 186, 680, 770 r. White 896 Watson V. At wood 1140 V. Esty 127, 691, 692, 1126, 1128, 1182 V. Phelps 559, 632 V. Princeton 36 B. Stucker 1132,1183 Walterson v. Kirkwood 801 Wattles V. Lapeer Watts's Lessee v. Gilmore Way V. Carey Wear v. Bryant Weare v. Van Meter Weathersby v. Thomas Weaver v. Arnold V. Grant V. Wibble V. Wilson Webb ». Bidwell V. Dixon 293 746,879 1207 963 572 845 1059 627 571 915 1085 769 V. Roberts's Ex. 777, 1135 Webber v. Cox 397 Weber v. Harris 996 V. Reinhard 31, 34, 53, 103 Webster v. Alton 24 V. Cliicago 352 V. French 309, 468 * e. Schwears 940 t. Seymour 335 V. Webster 916 Webster-Glover L. & M. v. St Croix County 293 Wederstrandt v. Freyhan 929, 1018 Weed V. M'Quilken 303, 319 Weeks v. Milwaukee 36, 126, 298, 1056 Weer i;. Hahn 406, 689 Weichselbaum v. Curlett 578 Weimar v. Bunbury 77 Weimer v. Porter 999 Weir V. Kitchens 349 Weismer v. Douglass 40, 45 Welker v. Potter 948, 953 Weller v. St. Paul 1056 Wells V. Atlanta 44 v. Austin 497 V. Burbank 198, 219, 309, 316, 316, 427, 446, 468, 489, 540 V. Burnham 1057 V. Jackson Iron Manuf. Co. 198, 199, 427, 446, 474, 600, 604, 642, 863. 1101, 1102, 1133 V. Smyth 199 V. Weston 1103 Wellshear v. Kelley 355, 549 Wendell v. Whitaker 792 Wentworth v. Allen 425, 621 Wescott V. McDonald 255, 1132 West V. Bancroft 44 V. Blake 1209 West's Appeal 656 Westbrook v. Willey 697, 1119, 1161 Westchester Gas Co. v. Chester County 36 Westerhaven v. Clive 191 Western Sav. Fund See. v. Phil- adelphia 44 Western Union TeL Co. v. Mayer 13, 103 c. State 103 TABLE OF CASES. Section Westervelt v. Gregg 76 Westfall V. Preston 163 Westhampton v. Searle 831, 948 West Hartford v. Water Com'rs 36 Weston V. Charleston City Council 62 West Sch. Dist. of Canton v. Merrills 313, 614 Wetherbee v. Dunn 187, 246, 1125, 1148, 1149 Wetmore v. Multnomah County 103 Wettig V. Bowman 911 Weyand v. Tipton 1135 Wharton v. Cass Tp. Sch. Directors 30 Wheaton v. Sexton's Lessee 643, 1135 Wheeler v. Anthony 258, 331 V. Bramel 265, 342 V. Cowan 355 0. Ligon 545 V. Merriam 861, 1009 V. Mills 218, 219 V. Winn 1183 V. Yenda 954 Wheelock v. Hall 1116 Whitcomb v. Rood . 1196 White V. Flynn 788, 1143, 1153 V. Kendrick 99 V. Shell 995 V. State 218 D. Strahl 635 V. White 93, 1143 V. Willard 664 Whitehall v. Northampton County 37 Whitehnuse Sch. Dist. Trust v. Readington Tp. Com. 10, 34 Whitehurst ». Gaskill 411 Whiteis v. Farsons 6S1 Whiteside v. Divers 705 Whitesides v. People 773 White Sulphur Springs Co. v. Holly 1056 Whitford v. Lynch 753 Whiting V. Sheboygan & F. E. Co. 10, 51 Whitman v. Hapgood 1213 Whitmore v. Learned 549 Whitney ». Gunderson 246, 581, 586, 594, 817 V. Marshall 941, 1140, 1172 a. Stevens 862 V. Thomas 258, 331 V. Whitney 1220 Whittelsey v. Clinton 196 Wiiittier v. Varney , 884 Wider v. Canty 613 Wigg V. Shuttleworth 522 Wiggin V. New York 465 Wight V. Warner 151 Wilber v. Paine 1226 Wilbur V. Crane 1187 Wilcox V. Humphrey 219, 468, 1055, 1056 Section Wilcox V. Jackson 354, 978 V. Smith 170, 174 Wild's Lessee v. Serpel 1031 Wilder v. Cockshutt 996 Wilding V. Horner 1150 Wiley V. Bean 757 V. Palmer 64 Wilhelm v. Russell 42 Wilkie V. Jones 1234 Wilkins v. Tourtelott 249 Wilkins's Heirs' Lessee v. Huse 348, 357, 361, 398, 426, 454, 495, 674 Wilkinson i-. Chatham 44 V. Leland 139, 1143, 1188, 1189 Wilkinson County Sup. ». Pitts 1007 Willard v. Blount 987 V. Pike 166 V. Strong 566 r. Wetherbee 100 Willey V. Scoviile's Lessee 281. 526, 528, 531, 876 Williams v. Albany County Sup. 219, 952 V. Brace 284 i: Cammack 24, 841, 1054 I.'. Detroit 103 ». East India Co. 1116 V. Gleason 353, 382, 395 V. Gray 571 I'. Harris 420 V Heath b-/6 V. Hilton 591 V. Hudson 974 c. Lunenburg First Sch. Dist. 36, 298 V. Peyton's Lessee 125, 127, 398, 446, 1128, 1132, 1134 V. State 357 V. Townsend 566, 567, 593, 820 V. Underbill 127, 685, 1150 Williams's Lessee v. Burnet 1125 Williamsburg v. Lord 181, 201, 1045 Williamson o. Bedford 1136 V. Berry 354, 674 ». Russell 578 Williaipsport v. Kent 613 Williston V. Colkett 250 Wills ». Austin 522, 1067 Wilmerton v. Phillips 1003 Wilson V. Buckman 326 ». Cochran 109 V. Crafts 852 V. Jarvis 676 i". Lemon 1158 V. M'Kenna 714, 950 V. Reasoner 927 V. Russell 680 V. Sutter County Sup. 103 «. Troup 498 V. Tucker 488 r. Watterson 354 M TABLE OF CASES. Section Wilson V. Wheeler 30 Wilsons V. Doe d. Bell 127, 753, 1127 Wincliester v. Cain 301, 728 V. Stevens Pt. 1070 Winder's Lessee v. Sterling 346, 1116 Windham v. Portland 556 Wine V. Woods 965 Wing V. Hall 899 Winn V. Macon City Council 24 Winslow V. Kimball 1189 V. Morrill 209 Winstanley 6. Meacham 914, 915 Winter o. Jones 1223 Winterbourne v. Morgan 840 Winthrop's Adm. v. Huntington 1013 Wisconsin Central R. Co. v. Lin- coln County 103 V. Taylor County 103 V. Wis. River Land Co. 685, 995 Wiseman v. Cotton 1200 Wlsner v. Chamberlin 679 V. Davenport 331, 427 Wistar's Jjessee v. Kammerer 127, 398 Withers e. Buckley 75 V. Yeadon 1013 Witherspoon v. Duncan 60, 75 V. Dunlap 498, 1216 Woddye ». Coles 544 WofEord V. M'Kinna 768, 939 Wolcott V. Pond 1226 Wolfe V. Henderson 729 V. Murphy 184, 311 Wood V. Meyer 497 V. Morton 794 V. Owings 745, 793 V. Welpton 700 Woodbridge v. Detroit 24 V. State 1125 Woodburn ». Farmers' & Mech. Bank 565 u. Wireman 629 Woodbury v. Shackleford 727 V. Swan 594 Woodcock r. Bennett 95 V. Bolster 555 Woodland Oil Co. u. Lawrence 959 V. Shoup 959 Woodman v. Clapp 734. 746, 755, 756, 773, 795, 886 WoodrnfE v. Fisher 44 V. Mc Harry 911 Woods V. Freeman 379 Woodside v. Wilson 223 Woodward r. Blanchard 862, 905, 916 ». Campbell 705 V. French 218 V. Sloan 777 Woolen V. Roekafeller 851 Woolfok I'. Fonbene 196, 234 Worcester County ». Worcester 36 Section Workingmen's Aid Soc. v. Lynn 36 Workingmen's Bank v. Lannes 262 Worley v. Cicero 1006 Worth V. Ashe County 37 V. Fayetteville 1054 V. Wilmington 103 Worthing v. Webster 1098, 1132 Wray v. Pittsburgh 24 Wright V. Bennett 705 V. Cradlebaugh 245, 815, 857, 1143 V. Dunham 1140, 1156 V. Graham 1003 V. Marsh 1050 V. Mattison 8G1 o. People 57 V. Sperry 673, 698 V. Walker 598, 902 V. Wing 6.35, 678, 964 Wyandotte, &c. Br. Co. v. Wyan- dotte County Com'rs 10S6 Wyatt V. Simpson 724, 727 Wyman v. Baer 631 f. Campbell 353 V. Smith 794 Wyuehamer v. People 18, 31 Yancey v. Hopkins 127, 131, 136, 259, 341. 357, 601, 1062, 1063, 1125 Yankee ti. Thompson 777, 1149 Yates, Re 1204 V. People 158 Yenda v. Wheeler 127, 224, 227, 262, 416, 954 York !). Goodwin 352 Yorty V. Paine 200, 749 Young V. Commonwealth 157 V. Dowling 1079 V. Keogh 674, 1079, 1080 V. King 828 u. Lorain 150, 354, 356 V. M'Kenzie 1187, 1234 V. Rheinecher 487 V. Thompson 883, 885 V. Vanliooser 954 Young's Lessee v. Martin 127, 164, 252, 255, 441 Youngblood v. Sexton 84 Zahradnicek v. Selby 400 Zanesville i>. Richards 103 Zurcher v. Magee 131, 151, 357 Zwietusch v. Watking 1025 Zylstra o. Charleston 91 TAX TITLES. [By nsing the summary statements, one of which will be found at the head of each chapter, together with the index under the title of the chapter, the reader can obtain a complete set of cross references to all portions of the book that bear upon the same subject-matter or the same principle.] CHAPTER I. OP THE VAUDITT, CUBE, AND EFFECT OF TAX TITLES, AND OF PROCEDUBE IN EELATION THERETO. § 1. General Statement. — The power to sell land for Taxes has no existence at common law ; it is founded on statute law. Yet the principles of the common law have to be continually invoked in dealing with tax titles. The influence of the com- mon law, or of that deep spirit of justice and public policy, of whose eternal struggles toward a richer and completer expres- sion in human life the great common law is born, is especially felt in relation to those two most deeply important and inter- esting questions that run like golden threads through the whole warp and woof of the subject, — the question of the limitations of legislative power, and the question of the strict- ness -with which the provisions of the revenue statutes must be conformed to. The voice of justice speaks very clearly upon the first. If the taxes for which the land is sold are not justly due from the land, or from the owner of it (as, if the property is exempt, or is taxed with burdens no part of which the land or its owner can justly be required to contribute, or with a greater share of a common burden than is just, or the VOL. I. — 1 1 § 1 VALIDITY, CUKE, AND EFFECT OF TAX TITLES. taxes were never imposed by any proper authority, or were never ascertained in amount, or have been paid), or if those interested in the land have had no notice or opportunity of notice ^ of what was due from them (as, where the amount of the tax has never been ascei-tained), or if they have had no , reasonable opportunity of making payment after the opportu- nity of notice was given (as, if the land were sold immediately upon assessment, or unreasonably soon thereafter), — in all such cases the sale could not be sustained. The legislature could not authorize such a sale, nor cure proceedings so vitally defec- tive (though, if taxes really ought to be paid by the land or those interested in it, the state would not lose the right to collect them, by reason of having tried to do it by improper methods ; the legislature could supply the missing authority, rule of apportionment, or other thing lacking, if it were within its power of supplyment, and then order a reassessment in a proper manner), nor give the sale even so much effect as to carry to the purchaser a right to reimbursement from the owner when he claims the land.^ In all cases where the path of rectitude is so clearly marked, the judiciary will not allow the legislature , to step aside from it ; but whenever the way is dimly marked by nature, and not worn into distinctness by the following feet of numerous precedents, another strong thought urges its claims for control. Interference in doubtful cases would be death to the independence of the legislative power, and we should have, not three co-ordinate branches of govern- ment, but a judicial despotism. There is another case in which not merely justice, but a still higher power, necessity, declares the proceedings void, and that is where the descrip- tions fail to identify the land. The second of the questions above named points us to the battle-field whereon lie man- gled and dead nearly all the tax titles that have ever dared to show their faces in the court-room. Two per cent only have escaped alive. Most of the judges argue for great strict- ness, saying that the sale is against common rights, that the purchaser may get an estate of great value for a trifle, that no authority to sell exists except by pursuing the provisions ^ § 397. 2 § 994. WHAT IS NECESSARY TO VALIDITY. § 2 of the law that create the authority, and that for all these reasons great precision must be required in such proceed- ings. On the other hand, it may be urged that the govern- ment has rights, as well as individuals; that indeed the right of the government to the necessary funds Is para- mount to private rights ; that in the anxiety to secure the rights of land-owners against the rapacity of tax-purchasers, the necessities of the government must not be lost sight of, and that too great strictness in construing tax laws will tend to defeat the object of the law, viz. : the collection of reve- nues.^ A just balance between these opposing forces should be aimed at, and the rights of all three parties kept con- stantly in mind. The best rule would seem to be to require on behalf of the owner full and substantial compliance with all provisions that are for his benefit,^ and as to other pro- visions which are merely for the convenience of the state or its oflScers, the objection should come from the state ; and an omission which injures no one but the state should not be made the pretext of inflicting a still further injury upon her by enfeebling the collection of her revenues. The prac- titioner who has to deal with tax titles will find the greatest confusion in the decisions of the various States as to the effect of minor deviations from the law, and he can only be sure of his ground by studying carefully the statutes of his own jurisdiction, making himself thoroughly familiar with the decisions under them, and then applying the knowledge so gained point by point to each tax title that comes under his professional care. There are two general methods of depriving a citizen of his land by reason of the non-payment of taxes ; the first proceeds by public auction, the second by forfeiture to the state. Most of the book deals with the former, one chapter only being devoted to forfeitures.^ VALIDITY. § 2. What is necessary to Validity. — The fundamentals are : taxes due, notice or opportunity of it, opportunity for payment, » § 474. 2 §§ 471-473. z § 1026. 3 § 2 VALIDITY, CUBE, AND EFFECT OF TAX TITLES. and at least a gvhstanticH conformity to the provisions of law in relation to time, place, and method, etc. This involves, under the various laws : (1) The imposition of a lawful tax bj the state,^ or some body to whom the power of making a levy has been properly delegated.^ This is the legislative portion of the proceedings, and includes the selection of the purposes and objects of taxation and the rules of apportionment. (2) An execution of all the provisions of law with due strictness,* — under which head we must examine the election and quali- fications of the officers who are to execute the law ; * listing and valuation ; ^ the authority to collect the tax ; * the de- mand ; " exhaustion of personalty before attaching the land ; * return of the delinquent list ;^ judicial condemnation in some States ; ^" advertisement of sale ; ^^ authority of the officer to sell ; ^ the tax lien ; ^ the sale,^* which may be fraudulent ^ or to an improper person,^® or to the State, County, or Cityj" or hy the State or a corporation public or private ; ^ the certifi- cate of sale;^^ fulfilment of conditions -subsequent to the sale, as the return of sale and record of the proceedings ; ^ giving a surplus bond in some States ; ^^ locating the land ; ^ judicial confirmation of the sale in some jurisdictions,^ and notice to redeem ; ^ the absence of redemption ; ^ the securing of a tax deed in due season.^® The land must not have been exempt,^^ nor the taxes paid before sale,^ and the officers must not have exceeded or abused their authority.^ The documents must all be properly authenticated,*" and any sub- stantial variances between them will be fatal unless necessaiy to represent a change of facts.** All these things must be looked to in order to decide if a tax title is valid or not, and one more, viz. : the purchaser must get possession before the statutes of limitations have run against him.*^ 1 § 9. « § 300. 5 §§ 121, 465. * § 167. = § 193. « § 330. ' § 335. 8 § 340. » § 346. 10 § 351. " § 396 " § 453. w § 476. " § 485. >« § 557. 16 § 566. " § 609. » § 612. i» § 622. ^ § 641. 21 § 660. 22 § 668. 28 § 674. " § 678. !» § 700. 28 § 731. " § 801. 28 § 820. 28 § 839. »> § 865. 81 § 874. »2 § 895. 4 WHAT MAT BE CUBED. § 4 § 3. 'V^at is not necessary to Validity ? — This is a question the answer to which flickers like a star in the mist. All the way through the book the reader will find decisions that this or that provision of law need not be exactly conformed to ; for example, though an officer do not take the required oath or give the requisite bond, the title that flows through him may be good;^ so a failure to make a levy at the ap- pointed time may not be fatal.^ It would be needless to attempt an enumeration of the slight defects which are not entirely destructive of the beauty of a tax title, and a different list would have to be made for each State. It is much more practical to leave those interested in such matters to seek information under the appropriate heads in the subsequent chapters, and in the cases cited ; first, to discover if the title in hand is defective, and second, if the defects are fatal. CURES. § 4. What may be Cured. — Those deviations which come within section 3 need no cure; those which are named in section 1 cannot be cured. The provisions of law referred to in section 2 are divisible into two classes ; first, those of a kind which the legislature must make in order to exercise the taxing power at all, — those, the necessity for which is inherent in the nature of tax legislation, or arises from consti- tutional provisions or treaties;-' and second, those with which the legislature could dispense if they wished. Any defect arising from substantial violation of one of the former class of provisions cannot be cured ; but if the transgression of law affects only the second class, the title can be cured by the legislature by means of retrospective or prospective curative laws, general or special.* A cure may be effected also in some cases by amendment of the proceedings,^ or by the consent of the owners to irregularities.* There are two things which must be distinguished from a cure, properly so called, and which are yet somewhat similar in their effects. The first is a reassessment.^ This does not cure the proceed- ' § 167. 2 § 308. » § 1. * § 848. « § 881. • § 888. ' § 848. 6 § 6 VAUDITT, CDBE, AND EFFECT OF TAX TITLES. ings already bad, but saves the loss of a tax justly due by instituting new and valid proceedings. The other is a limi- tation for the bringing of suit to set aside the tax title, etc.^ This is the most powerful weapon in the legislative armory. Even a reassessment, which has a wider sweep than curative laws can have, can never amount to anything where the pur- pose of the taxation was illegal, or the land constitutiojially exempt, etc., but a statute of limitation may bar the owner out, no matter how great his right ; for it aims not to cure the malady in the tax proceedings, but to protect the growing rights of one who in good faith takes and keeps possession of the land. The possession protected in this way ought, how- ever, to be something more than a mere constructive pos- session of vacant land conferred by the revenue law as an accompaniment of the tax deed. The laws which give the purchaser such constructive possession, and then bar the owner after a few years without providing for actual notice to him„seem very unjust.^ The legislature cannot forcibly put the tax purchaser into possession, as by using the police power without a judicial determination of his right,' and the constructive-possessiou-by-legislative-fiat trick seems only one degree further removed from the legal hell of injustice. § 5. "What cannot be Cured. — This matter has been already sufficiently discussed in sections 1 and 4. EFFECT. § 6. The XKect of a valid Tax Title * varies in the diEferent States, and according to the circumstances, from the passing only of the interest of the person assessed, or who ought to have paid the taxes, to the giving of an absolute estate in fee simple that destroys all prior liens, incumbrances, estates, and interests in, to, over, or upon the land, and starts as fresh as the first prcftoplasmic cell. The effect of the tax certificate is only to fix a lien upon the land, and give a right to the deed in the proper time, and on the specified condi- tions.^ The immediate effect of the deed will depend on the 1 § 895. = § 895. 8 § 1077. * § 954. e §§ 622, 954. PROCEDURE. § 8 existence of outstanding rights of I'edemption ; ^ the final effect in conveying title is indicated in the first sentence of this section. Its effect as evidence ^ and as color of title,^ and the effect of the covenants of the ofiicer in the deed,* must be studied in the light of the statutes and decisions in each State. § 7. The Effect of Invalid Proceedings may be merely to create expense and waste time, as in the cases spoken of in sections 1 and 4, as those which cannot be cured, and do not even convey any lien or right of reimbursement from the owner. Such proceedings do not even give the purchaser a right to recover from the State, county, or city selling the land the money he paid for it, unless the right is given by statute,^ as it should be in all such cases. Caveat emptor is the rule of the common law. If the proceedings are not vitally invalid, but such as might be cured, the lien of the State for the taxes will pass to the purchaser,^ and he will have a right to demand reimbursement from one who claims the land against him.'' He has also frequently the right to recover for improvements made in good faith.® PROCEDURE. § 8. Questions of procedure can never be wholly separated from the consideration of any point of substantive law ; for no matter how clear it may be to the lawyer or his client, that his claim is good in fact, if he canncJt make it appear by the evidence the law requires, nor bring the remedies of the law to bear upon his case in their proper order and place, all his knowledge of the law touching the validity, cure, and effect of tax titles will avail him nothing. It is therefore ne- cessary to keep continually in mind the great rules of the law relative to pleading,^ jurisdiction, and remedies,^" the effect of precedents," the interpretation and construction of statutes,^^ and evidence,^^ especially the burden of proof." » § 954. 2 § 844. ' § 861. * § 796. ^ § 994. • § 994. 1 §§ 994, 1053. « § 1009. ' § 1082. i" § 1053. " § 1173. " § 1177. IS § 1098. " § 1120. CHAPTEE II. OP THE FUNDAMENTAL PRINCIPLES WHICH CONTROL THE TAXING POWER. § 9. Smnmazy of the Subject. — In order that a tax title may be valid the tax mint be lawfully imposed. It is not every exaction that may possibly be made by a legislative body that constitutes a lawful tax. We have, first, to discover and define the nature of taxation ^ and those limitations ^ of the power of the legislature which are inherent ^ in the frame of our government and in the very nature of taxation, — limitations which proceed out of natural justice and the ob- jects of government ; second, to consider the limitations that have been imposed upon legislative action by the Constitu- tions * of the United States ^ and of the various States,® par- ticularly the provisions relating to the control of the legislative power by the judiciary,^ " the law of the land," ^ and equality and uniformity ; ^ third, to speak of limitations arising by treaty, charter, or other agreement ; i" and lastly, to see how far the legislature piay delegate or a municipality may sub- delegate the powers of taxation and exemption.^ § 10. Definition of Ta2:es and Taxation. — Revenue is ne- cessary for the existence of government ; government is ne- cessary for the public good ; therefore that the government should have means of financial support is necessary to the 1 §§ 10-13. * § 14. For various examples of the limitations of legislative power in relation to-tax proceedings, see Index,"Legislative Power," as of especial importance. § 1077. » §§ 15-57. M 58. 6 §1 59_66. « §§ 67-117. ' § 68. 8 §§ 75-102. 9 §§ 103-109. »» §§ 110-117. " §§ 118-120. 8 DEFINITION OP TAXES AND TAXATION. § 10 interests of the people. This must be obtained in uncertain, unequal, irregular ways, as by gift or plunder ; or by certain just, equal, and regular ways, as by exactions based on some rule aiming at apportioning the burdens of supporting the government in accordance with the benefits accruing to each citizen by reason of the activities of the government receiv- ing the money. The very objects of government being to preserve equality before the law, and to establish justice, the former method must be rejected as repugnant to the nature of any government but a despotism, and the latter method must be adopted. This certain just and equal method of ex- actiAg contributions from the people by the government is called Taxation. It is of the utmost importance throughout the discussions of this chapter to keep in mind that the tak- ing of property from a citizen without compensation is not within the sphere of legislative power. Whether the State deprives the subject of his property by taxation or by emi- nent domain, the idea of equivalence of compensation under- lies the transaction. In the case of eminent domain, the equivalence is between the land and what is paid by the State for it. In the case of taxation the equivalence is be- tween the ratio of the amount paid by any citizen to the whole amount required, and the ratio of the interest of that citizen to the whole public interest in the purpose to which the money raised by the taxation is to be applied. And this involves a subordinate equivalence between the amount paid by any citizen and that paid by another citizen under like circumstances. The ideas of consideration and proportionality of burden to benefit are essential parts of the idea of taxa- tion, and a legislative act that disregards these principles is not an exercise of the power of taxation. Those who re- ceive the benefit should pay for it. All those who are bene- fited should contribute. None but those benefited should be called on. ' Those who are benefited most should pay most. Bach should pay in proportion to his interest. These are the ideas that lie in the heart of the taxing power; and from them pulses the law of taxation. It is clear that when the public is taxed, the purpose must be public, and pertain to the ■9 § 10 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. district taxed, and that all interested must be taxed, unless a consideration for exemption passes or has passed from the person exempted to the State. A correct definition must include all these consequences, for they flow from the very nature of taxation and must be attended to so far as prac- ticable. A tax is defined to be a burden or charge imposed by the legislative power of a State upon persons or property, to raise money for public purposes,^ and can be levied for public pur- poses only.^ It is not a debt, for it is not founded on contract. It does not establish the relation of debtor and creditor be- tween the taxpayer and the State ; it does not draw interest ; it is not the subject of attachment; and it is not liable to set-off.2 A tax is, however, an obligation so far similar to a > Mitchell V. Williams, 27 Ind. 62 (1866) ; Hanson v. Vernon, 27 Iowa, 46 (1869). " A portion of the property of individuals taken from them by the government and disposed of by it " (21 Encyc. Brit. 37). Clearly erroneous; it covers confiscation as well as taxation. " Contributions paid by the inhabitants of a county for the use of the government " (15 New Am. Encyc. 307). This also is wrong, as it covers voluntary contri- butions. " A rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or state." Webster's Diet. " The imposition of a duty or impost for the support of government " (Pray v. Northern Liberties, 31 Pa. St. 69 (1850). This does not recog- nize an exaction for other public needs than the support of government, as a tax. Amenia Overseers, etc. v. Stanford Overseers, etc., 6 Johns. (N. Y.) 92; Matter of Mayor, etc. of New York, 11 id. 77; Bleecker v. Ballon, 3 Wend. (N. Y.) 263. ^ Grim v. Weissenberg Sch. Dist., 57 Pa. St. 433; Brodhead v. Milwaukee, 19 Wis. 621, 652 ; People, ex rel. v. Salem Board, 20 Mich. 452; Same v. State Treasurer, 23 Mich. 499 ; Soens v. Racine, 10 Wis. 271 ; Whiting V. Sheboygan, etc. R. Co., 25 Wis. 167; Curtis's Administratora V. Whipple, 24 Wis. 350; State, ex rel. McCurdy, o. Tappan, 29 Wis. 664; National Bank of Cleveland v. Tola, 9 Kan. 689 ; Sharpless v. Philadelphia, 21 Pa. St. 147 ; Davidson v. County Commissioners, 18 Minn. 487 (1872) ; Commercial National Bank v. lola, 2 Dill. C. C. (U. S.) 353; Gibson v. Mason, 5 Nev. 283, 308; Cooley's Const. Lira., 129, 175, 487-495, and oases cited. 8 Perry v. Washburn, 20 Cal. 350 (1862) ; Camden v. Allen, 2 Dutch. (N. J.) 398; Pierce v. Boston, 3 Met 520; Shaw v. Peckett, 26 "Vt. 482 (1854). 10 DEFINITION OF TAXES AND TAXATION. § 10 debt that the government may authorize a personal action of assumpsit for its recovery.* The above definition is faulty in omitting the essential element of proportionality. The true definition is — Taxes are proportional ^ contributions enforced under the legislative authority of a State from persons and property within its ju- risdiction, for purposes public and pertaining to the district taxed. This distinguishes taxation from confiscation ; from contributions forced from an enemy; from contributions forced by judicial authority ; from voluntary aid, or gifts to the government ; and from the exercise of eminent domain ; for 'when property is taken by that power the contribution is not " proportional," — the amount taken from A. is, in pro- portion to the amount taken from B., C.,- etc., greater than A.'s share of the benefit resulting from the use of the prop- erty in proportion to the share of B. or C, or of any other person interested, while in the case of taxation, A.^s share of interest in the purpose to which the money is applied must hear the sayne relation to the interest of any other person, B.,in that purpose as A.^s share of the tax bears to B.'s share. That is the arithmetic, the morality, and the legal aim of taxation. A tax is not a charge levied by a sovereign on his own property, nor on property over which he has no dominion.' It is of the very essence of taxation that it should be based upon the idea of equivalence between the payment made by the tax- payer and the benefit resulting to him from the enterprise for which the money is raised.* The purpose of a tax is that a burden common to certain persons shall be met by common » Moore v. Patch, 12 Cal. 270 (1859) ; People v. Seymour, 16 Cal. 333 (1860). These cases decide that a tax is not merely a charge on the prop- erty, but is a duty or debt personally due from the owner, and enforceable by a personal action. * Dalrymple v. Milwaukee, 53 Wis. 185 (1881). "It is an essential and fundamental requisite in the exercise of the power of taxation that the burden should be imposed or apportioned with all practicable equality and justice. " Exchange Bank of Columbus v. Hines, 3 Ohio St. 10 (1853). « McCulIoch V. Maryland, 4 Wheat. 487. * Hilbish D. Catherman, 64 Pa. St. 159, 160 (1870); McKeen v. County of Northampton, 49 Pa. St. 524 (1^60). 11 § 10 FUNDAMENTAL PRINCIPLES CONTBOLUNG TAXING POWER. contributions from those persons, regulated by some fixed rule of apportionment. If a person is not interested in the purpose for which the money is raised, the money taken from him is not properly a tax ; and if part only of the persons inter- ested are compelled to bear the whole burden, the excess taken from them beyond their proper proportion is confiscation, not taxation. Whenever the property of a citizen is appropriated by the sovereign will to the benefit of the public, " the exac- tion should not be considered as a tax unless similar contribu- tions be made by that public itself, or shall be exacted rather, by the same public will from such constituent members of the same community generally as own the same kind of property." It is to be remembered, however, that while in theory and in aim taxes are merely an equivalent for the pro- tection of life, liberty, and property, and the increase in the wealth of the taxpayer resulting from the use to which the money is applied; and while it is true that any law which clearly and unmistakably puts a burden where it does not belong, or manifestly makes no attempt to distribute or ap- portion the burden according to some uniform rule among those standing in like relations to and of like interest in the purpose for which the money is raised, is not a tax law, whatever its name may be, but an act of confiscation, or the taking of A.'s property and giving it to B., or to some num- ber of others, without a just and proportional equivalent ; and while any legislative act that on its face seeks to make an exaction unproportional to the interest of the party in the purpose of the exaction, — a requisition not for the benefit of the payor, but for the unrequited gain of others, — passes the dead line, and will be held void in the courts; yet since a precise estimate of the interest of each person in any public matter, even if it were possible, would be more costly than the damage done by the slight variations from equivalence incident to taxation by general rules, and since perfect equality is impossible of attainment, the fact that a general law produces oppression in individual cases will not authorize a judicial declaration that it is not a lawful exercise of the legislative power of taxation. When it is man^est that the 12 DISTINCTION BETWEEN TAXATION AND EMINENT DOMAIN. § 11 purpose is not a public one,^ or one in which those upon whom the burden is laid are not interested,^ or that a small part of those interested are made to bear the whole burden, or that no rule of apportionment has been adopted, or in any other way it appears that no regard has been had to the attainment of the equivalence between burden and benefit, then and then only will the courts hold that the legislature has not exerted the powar of taxation, because it appears on the face of its proceedings that the essence of taxation is absent.^ If the legislature does not seek to apportion burden to benefit, it does not seek to tax, for in that equality is the home of taxa- tion, on that foundation is built the sovereign power to draw revenue from the people. " Taxation operates on a commu- nity, or a class in a community, according to some rule of apportionment. When the amount levied on individuals is determined without regard to the amount or value exacted from any other individual or classes of individuals, the power exercised is not that of taxation. A tax upon the persons or property of A., B., and C, individually, whether designated by name or in any other way, which is in excess of an equal apportionment among the persons or property of the class of persons or kind of property subject to the taxation, is, to the extent of such excess, the taking of private property for public use without compensation. The process is one of confiscation, and not of taxation."* § 11. Distinction between Taxation and Eminent Domain. — There is a manifest distinction between the taxing power and that of the eminent domain. Both, in effect, appropriate private property to public uses. They differ only in degree. But taxation exacts money from individuals, as their share of a public burden ; and the taxpayer, according to the theory of our system, receives a just compensation in the benefits con- ferred by the government, in the proper application of the 1 Philadelphia Association v. Wood, 39 Pa. 80 (1861) ; Loan Associa- tion V. Topeka, 20 Wall. 664 (1874). See § 38. " Sharpless v. Philadelphia, 9 HaiT. 168. « Loan Association v. Topeka, 20 Wall. 655 (1874). * SUte V. Keadington, 36 N. J. Law, 70 (1872). 13 § .11 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. tax.^ When, however, property is appropriated by virtue of the. right of eminent domain, it is taken, not as the owner's share of a public burden, but as so much more than his share. Special compensation is, therefore, to be made.^ Money cannot be taken by eminent domain, except perhaps for the use of the state at large in special emergencies. The exigencies of the state can seldom require the taking of money in virtue of this power even in war, and, never in peace. Money can always be had by taxation ; lands cannot ; and therefore lands may be taken by right of eminent do- main, but money may not.^ When property is taken by taxa- tion, the citizen merely pays what he owes, or what is his just proportion of a common enterprise. His share of benefit derived from the use to which the money is put, is propor- tional in value to the tax he pays. That is the theory of taxation, modified in practice by the necessity of establishing general rules, since the cost of minute determinations of equivalence in Individual cases would be a greater burden than the slight variances from the true line resulting from the application of a general method. The theory of eminent domain, on the contrary, is that the state is taking property from a citizen, not in accordance with a rule of apportionment by which each other citizen in similar circumstances, or who will be equally benefited by the transaction, is called on to contribute an equal amount, but in the way of a contract. The state says, " Mr. B., your lot is suited for a public build- ing in which the hundred thousand taxpayers of the Com- monwealth are equally interested. You will receive no more benefit than other taxpayers, that is, the one one-hundred-thou- sandth of the whole advantage ; it would, then, be very unjust to make you give the whole lot worth $10,000, and exact nothing from the others ; that would be taking from you ninety-nine thousand one-hundred-thousandths more than your share of the burden ; therefore, I will order each citizen, you 1 Booth V. Woodbury, 32 Conn. 118; Griffin v. Dogan, 48 Miss. 20. 2 People, ex rel. Griffin, v. Brooklyn, 4 N. Y. 419; Booth v. Woodbury, 32 Conn. 118; Griffin v. Dogan, 48 Miss. 20. » People V. Mayor of Brooklyn, 4 N. Y. 424 (1851). 14 "^OWER OP TAXATION AN INCIDENT OP SOVEREIGNTY. § 13 among ttie rest, to pay teu cents into a general fund, and then I will take the $10,000 thus raised and pay it to you for your lot." The charge of ten cents against each citizen is taxation ; the compvlsory sale of the lot because it is wanted for public purposes is the exercise of eminent domain. § 12. Distmction betvreeu Taxation and Assessment. — A dis- tinction is sometimes necessary between " assessment " and " taxation," as in construing a State Constitution which re- quires " taxation " to be equal and uniform, and gives the le- gislature power " to provide for the organization of cities, etc., and to restrict their power of taxation, assessments, etc." In such case it is held that the legislature can have nothing to do with the mode of enforcing the taxing power represented by the word " assessment," except through its organization and regu- lation of municipalities ; it cannot exercise the power directly .^ § 13. The power of Taxation is an Incident of Sovereignty,"^ and would exist without a written constitution.^ A de facto government, able to maintain its supremacy by its arms, may exercise the sovereign power of taxation, and as far as com- pletely enforced it will be recognized as valid ; but after it has assessed a tax, if it is overthrown before the tax is collected, and the power of the rightful sovereign is re-established, the tax will not be enforced.* 1 Taylor v. Palmer, 31 Cal. 253 (1866). See further for the distinction between a tax and an assessment, State v. Newark, 35 N. J. Law, 157 ; 36 id. 478; Peoria v. Kidder, 26 111. 351 ; Egyptian Levee Co. ». Hardin, 27 Mo. 495; Sheehan v. Good Samaritan Hospital, 50 Mo. 155; Beeves t;. Wood County Treasurer, 8 Ohio St. 333 ; Lumsden v. Cross, 10 Wis. 282 ; Emery V. San Francisco Gas Co., 28 Cal. 345; Walsh v. Mathews, 29 Cal. 123; People 0. Whyler, 41 Cal. 351 ; 2 Dillon's Municipal Corporations, §§ 2, 617; Cooley's Constitutional Limitatious, 479. 2 Bank of Pennsylvania ». Commonwealth, 19 Pa. St. 152 (1852); Ex- tension of Hancock Street, 18 Pa. St. 30 (1851) ; Commonwealth v. Moore, 25 Grat. 954 (1875) ; Catlin ». Hull, 21 Vt. 152 (1849); Corte v. Society for Savings, 32 Conn. 184 (1864); Taylor ». Palmer, 31 Cal. 252 (1866); Porter v. Rockford, Rock Island, etc., R. Co., 76 111. 561 (1875) ; Pullen V. Commissioners, 66 N. C. 361 (1872). » Western Union Telegraph Co. v. Mayer, 28 Ohio St. 533. * O'Byrne v. Savannah, 41 Ga. 331 ; Dickerson v. Acosta, 15 Fla. 614 (1876). 15 § 13 FUNDAMENTAL PEINCIPLES CONTROLLING TAXING POWER. The taxing power has no existence in a state of nature. It is the creature of civil society. Government begets its necessity. There must be interwoven in the frame of every government a general power . of taxation. Money is, with proJ)riety, considered as the vital principle of the body-politic ; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of revenue, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every Constitution. From a deficiency in this particular, one of two evils must necessarily ensue; either the people must be subjected to continual plunder, or the government must perish for want of revenue to support it.^ It may there- fore be laid down as a principle of universal constitutional law, that the power to levy and collect taxes is an incident of sovereignty, without which no government could exercise the powers expressly delegated to it. In vain have the people, in their primary capacity, established government, and armed it with legislative, judicial, and executive powers, unless the means of performing these functions have also been granted to the government, either expressly or by impli- cation. In the Federal Constitution there is an express grant to Congress of the power to " levy and collect taxes." The State constitutions do not in general confer this power upon the legislature by any specific clause ; ^ it passes under the general designation of "legislative power." It is implied, upon the principle that a grant of legislative, judicial, and executive powers carries with it, by construction, all the means necessary for their execution. It is also implied from the limitations to be found in the several State constitutions, 1 Federalist, No. 30. 2 This statement does not apply to all the States. Thus the Consti- tution of Massachusetts contains an express grant to the legislature of power "to impose and levy proportional and reasonable assessments, rates, and taxes upon all the inhabitants of, and .persons resident and estates lying within, the said Commonwealth." See also Art. XIV., Const, of Mich., 1 Comp. Laws of 1871, p. 73. 16 UMITATIONS. § 14 as to the manner of levying taxes. The power of taxation operates upon all persons and property within the territorial jurisdiction of a State. There is no inherent limitation upon the power of the legislature, as to the amount of taxation or the objects of it, if the money' goes into the treasury ; that is, if a special purpose does not appear on the face of the exac- tion ; if it does, the objects and amount may both be limited, as we shall see when we come to speak of "Public Pur- pose." The interest, wisdom, and justice of the representa- tive body, and its relation with its constituents, furnish the only security against unjust and excessive taxation in such cases. These principles are fully sustained by the authorities.^ The legislature may by general laws impose taxes upon a given species of property, even to the prohibition or annihi- lation of such kinds of property.^ Instance dogs. As to the amount of taxation, or objects to be taxed, where the money goes into the public treasury, there is no limitation on the legislature except what may be expressed or necessarily implied in the Constitution ; and the violation of paramount law must be entirely free from doubt to justify judicial interference.' § 14. Limitations. — Let US now proceed to an examination of those limitations imposed upon the legislature, as to the manner of levying and collecting taxes. One of the reasons assigned by a great lawyer and statesman, in justification of the grant of an adequate taxing power to every government, is the protection of the citizen from the " continual plun- der " to which he would otherwise be subjected by the wants of the government and the rapacity of the public agents.* 1 Providence Bank v. Billings, 4 Pet. 514; Brewster v. Hough, 10 N. H. 138; Mack v. Jones, 21 N. H. 393. See also Lowell e. Oliver, 8 Allen (Mass.), 247; People, ex rel. McSpeedon, t>. Haws, 34 Barb. (N. Y.) 69; People, ex rel. Blanding, v. Burr, 13 Cal. 343; Soens v. Kacine, 10 Wis. 271 ; Oliver v. Washington Mills, 11 Allen (Mass.), 268; Gihson v. Mason, 5 Nev. 283; McCuUoch v. Maryland, 4 Whes^t. 428; Osborne v. Mobile, 44 Ala. 493; Stockton & Visalia R. Co. v. Stockton Common Council, 41 Cal. 147 ; Beals v. Amador County Supervisors, 35 Cal. 624. « Henry v. Chester, 15 Vt. 466 (1843). » Cheney v. Jones, 14 Fla. 587, 607 (1874). * Federalist, No. 30. VOL. I. — 2 17 § 15 FUNDAMENTAL PEINCIPLBS CONTBOLLING TAXING POWER. It is not to be presumed, therefore, that the people of this country, in framing their govemments, designed, while con- ferring the taxing power for the express purpose of prevent- ing the indiscriminate plunder of their property by public agents, to legalize a system by which the very evil they intended to guard against might finally prevail. Besides, one of the great ends of government is the protection of private property, which, in a state of nature, was held by a precarious tenure, and liable to constant invasion by superior force. It would not, therefore, be reasonable to suppose that the citizen, in entering into a governmental compact for the purpose of appealing to the strong arm of constitutional law, when his rights of property were invaded, intended to confer an arbitrary power of taxation upon the government, in the exercise of which his property would be rendered equally insecure as in the natural state. He would gain nothing by such a compact ; true, he would have a security against the force and fraud of his neighbors, but would thereby become a prey to the passions of the entire community, acting under color of a written constitution. Such a view of the constitu- tion of a free people would render it a mere license to gov- ernmental plunder. Happily for the people, the power of taxation which they have delegated to their government is not an arbitrary one, but limited by the words and " spirit of the Constitution," ^ and the principles of natu- ral justice. In the frame of government and the nature of taxation ,2 in the Federal^ and State* constitutions, and in treaties and compacts,^ exist limitations of the legislative power. We will consider them in their order, and then speak a little of the right to delegate the powers of taxation and exemption.^ § 15. Inherent Limitations.^ — In this country the legisla- 1 As to the " spirit of the Constitution " not being an interdiction upon legislative power, see fattison v. Yuba County Supervisors, 13 Cal. 175, 182; Stockton & Visalia R. Co. ». Stockton Common Council, 41 CaL 147, 162. " § 15. » §§ 58, 59, 60. * §§ 67, 68, 75, 103, 6 § 110. 6 § 118. ' §§ 15-57. 18 INHEEKNT LIMITATIONS. § 15 ture is not the fountain of power. The people are behind it, and only such powers as they have delegated reside in the legislative bodies. Government is intended to preserve the rights of the people, not to destroy them, and the nature of the purposes for which government is instituted, places limits to the legislative power, which the judiciary will rec- ognize and enforce.^ The fact that government is founded to secure justice colors and moulds the power of every depart- ment. If the legislature does what is manifestly unjust, it clearly goes beyond the sphere of government, and takes upon itself the character of those for whose repression government was Instituted. Because the legislature transcends its powers is no reason why the judiciary should also break its trust. It must not sustain, but prevent injustice, so far as lies in its power; and although, to prevent crippling the government or subjecting one department to the will of another, a large discretion in the decision of what constitutes justice in par- ticular cases must be left with the legislature, to be checked only by the votes of the people, yet lohere the legislative act bears upon its face its manifest violation of the very rights the enacting body is in duty hound to protect, the judiciary ought to interfere. And the weight of authority is in harmony with this,2 although some strong cases affirm that the courts cannot interfere, except to enforce the provisions of the Constitution.* It will be found, upon examination of these cases, that they are, for the most part, very just decisions upon the facts pre- sented, and that the language of the court is too broad, sweep- ing in by unnoticed implication cases which very likely would be decided exactly to the contrary of the principle laid down, if they should come before that same court. It is everywhere held that the presumption is in favor of the legis- lature, and that the courts can interfere only in a clear case.* Justice requires that taxation and representation should go together,* and that taxes should rest on the ideas of compen- sation and proportionality. It is not just to take one man's property merely to give it to another man ; that is robbery, one » § 16- ^ §§ 17-24. » §§ 25-29. * §§ 30, 31, 42, 57. « § 32. 19 § 15 FUNDAMENTAL PRINCIPLES CONTBOLLING TAXING POWER. of the veiy things government is intended to prevent. The essential nature of taxation is that it shall be founded on a consideration which is public in its nature, and which moves to the persons paying the taxes, and that in proportion to the shares these persons have in the consideration, should be the demands upon them. Taxation is on consideration of protection'^ of person or property, or both, or of some advantage already secured, or to be secured to the public taxed, and which it ought justly to pay for. If the con- sideration is not one that moves to the community or to a class in the community, but only to a private individual or corporation, it is not of a public nature, and not with- in reach of the legislative power. The legislature cannot levy a tax on A. to pay his private debt to B. ;2 the set- tling of controversies between individuals belongs to the judicial department. If the money is to be expended for a purpose in which some of those taxed have no interest, the consideration does not move to those who pay for it. If others than those taxed are interested, the consideration moves to some who do not pay, and the exemption is unjust, unless in some other way an equivalent for the taxes is obtained, so that the exemption or commutation is on consid- eration. If A. is taxed more than B. under similar circum- stances, the proportion is broken. It results from all this that revenue laws should aim at equality^ and apportion- ment;* give no exemptions^ except for consideration re- ceived by the public which would warrant positive taxation, and not produce dovile taxation; ® that is, such as is not mere- ly double in appearance but double in reality, causing A. to pay more than B. in like circumstances; and the ptirpose should be public ^ and pertain to the district taxed? All these requirements or limitations on the taxing power are them- selves limited by the fact that, taxation being necessary for the life of the government, a wide discretion must be left with the legislature as to the objects and methods of taxar tion, and that perfection is not attainable. These things are J See § 33. » § 20. » § 84. < § 35. • § 36. • § 37. ' § 38. » § 52. 20 LEGISLATIVE AND JUDICIAL SPHERES. § 16 expressed in the word aim above. It is impracticable to reach perfect proportion of burden to benefit ; the ascertain- ment of what is actually due from each individual would be more costly than the tax, and is really so complex as to be beyond human calculation. The affairs of government must be carried on under government laws. The practical places limits to the just. If a statute does not carry on its face the fact that no attempt was made at equality or proportion, or thq,t the purpose is not public and appurtenant to the district taxed (as if money is taken from one class merely to give to another), the judiciary should give the legislature the bene- fit of the presumption in its favor, and leave the matter to be righted by the ballot, if the law is found to be really unjust. §16. Ziegislative and Judicial Spheres.^ — In America the government is not the source of power. The legislature has only such power as is delegated to it by the people. Its duty is to preserve rights, not to destroy them, and if it manifestly transcends this sphere the judiciary will interfere. The principles by which legislative power is controlled in this country are to be found in our written constitutions, and are deducible in a threefold manner : 1. From the declared ends of government. 2. Prom the particular provisions of the Constitution. 3. From the structure of the government itself. In discussing this subject, we shall refer to the Constitution of Illinois, because it is more familiar to us, while at the same time it is substantially like that of every other State in the Union. The thirteenth article of that instrument, in order "that the general, great, and essential principles of liberty and free government may be recognized and unalterably established," proceeds to de- clare : 1. " That all men are born equally free and inde- pendent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, and of acquiring, possessing, and protecting prop- erty and reputation, and of pursuing their own happiness." ' Read § 15 in connection vrith this. 21 § 16 FUNDAMENTAL PEINCIPLES CONTROLLING TAXING POWER. 2. " That all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness." It will be seen, on a critical examination of these provisions, that seven great and essential principles are declared : 1. That all men are created free and independent. 2. That they possess the rights of life, liberty, reputation, and property, independent of human laws. 3. That these rights are indefeasible in their nature. 4. That all power is inherent in the people at large. 6. That human government is founded upon their authority. 6. Tliat government is instituted for their security. 7. That the only end of government is the preservation and perpetuation of these inherent powers and rights. They all affirm the great truth, that " rights are from nature, while titles and remedies are the invention of society." ^ The Hon. Edward Bates, now Judge of the Land Court in St. Louis, in his argument in the case of Hamilton v. The St. Louis County Court,^ thus enforces this position : " What is a constitution, and what are its objects ? It is easier to tell what it is not, than what it is. It is not the beginning of a community, nor the origin of private rights ; it is not the fountain of law, nor the incipient state of government; it is not the cause, but consequence of personal and political freedom ; it grants no rights to the people, but is the creature of their power, the instrument of their convenience, designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made ; it is but the framework of the political government, and necessarily based upon the pre-existing condition of laws, rights, habits, and modes of thought. There is nothing primitive in it ; it is all derived from a known source. It presupposes an organized society, law, order, property, per- sonal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny. A written constitution is, in * Judge Pope, in Arrowsmith v. Burlingim, 4 McLean C. C. (U. S.) 497. « 15 Mo. 3. 22 LEGISLATIVE AND JUDICIAL SPHERES. § 16 every instance, a limitation upon the powers of government, in the hands of agents, for there never was a written repub- lican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extent, and incapable of definition. Our con- stitution, in express terms, acknowledges and continues in force all former rights, law, offices, and functions of office." A similar recognition of existing rights is to be found in most of our constitutions. It is a simple affirmation of a principle of natural justice, that revolutionary and peaceable changes in the form of government do not overturn the es- tablished rights, duties, and obligations which may have been acquired or created prior to the change.^ Nor has a conquest any such effect.^ Rights and obligations depend upon the natural law for their existence. Force was the vital principle of society in a state of nature. This led to violence and bloodshed. Peace and civilization demanded a substitute. This superinduced government, the theory of which is the surrender of remedies into the hands of the chosen agents of the people at large. It thereupon became the duty of the society to provide remedies for the enforce- ment of every right, and the redress of every wrong. This was done by the organization of a government, divided into three great departments, in each of which such portions of the sovereign power was lodged as was deemed necessary to effect this object. The legislature have power to pre- scribe general rules for the government of society ; the courts are empowered to expound and apply these rules to the facts of each individual case; and the executive power en- forces the sentence of the law. It would seem therefore to be the duty of government to regulate the mode of acqui- sition and transfer of property, to declare what should be evidence of the owner's right, and to furnish him with a 1 Tenett v. Taylor, 9 Cranch (U. S.), 43 ; Dartmouth College v. Wood- ward, 4 Wheat. (U. S.) 518. ' Johnson's Lessees v. Mcintosh, 8 Wheat. (U. S.) 543, 588; American Insurance Co. v. Canter, 1 Pet. (U. S.) 542; United States ». Pevcheman, 7 Pet. (U. S.) 51; Strother v. Lucas, 12 Pet. (U. S.) 410. 23 § 17 FUNDAMENTAL PMNCIPLES CONTROLLING TAXING POWEE. remedy to enforce it. It follows, of nepessity, that neither the whole government, nor any department thereof, has an inherent power ; that it can rightfully exercise such powers only as have been delegated to it by the people, in their writ- ten Constitution ; and that these powers are to be exercised in subservience to, and not in subversion of, the declared ends of government. We must, therefore, look to th^ Con- stitution itself to ascertain what power is delegated to the government, and each of its departments. That Constitution declares that " the legislative authority of this State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives, both to be elected by the people;" that "the executive power of the State shall be vested in the governor ; " and that " the judicial power of this State shall be, and is hereby, vested in one supreme court, in circuit courts, in county courts, and in justices of the peace." These are all of the powers which the people have delegated to the government They constitute together the power to make, apply, and execute laws. But they are held by the government in trust, to be exercised for the pro- tection, and not destruction, of the rights of life, liberty, reputation, and property. This simple limitation, resulting from the declared ends of the government, if faithfully ob- served, would be a sufficient guarantee against governmental wrong. § 17. Limitations founded in ITatural Justice and inherent in the very Nature of Taxation.^ — The existence of SUch limits to the taxing power is clearly recognized by many authorities,* though denied by others,^ most of the latter however having given opinions wider than the facts. "It is a well settled principle of American constitutional 1 Read § 15 in connection with thia. " See §§ 18-24. Sutton's Heirs ». Louisville, 5 Dana (Ky.), 31 ; Lex- ington V. M'Quillan's Heirs, 9 id. 516; Opinion of Justices, 4 N. H. 556 ; Baltimore ». Moore, 6 Har. & J. (Md.) 375, 882; Baltimore ». Howard, Id. 383; People, ex. rel. Post, v. Brooklyn, 6 Barb. (N. Y.) 209; People ». Salem Board, 20 Mich. 452, 474; Philadelphia Dis. Firemen Association V. Wood. 39 Pa. St. 73. • §§ 25-29. 24 INHERENT LIMITATIONS. § 18 law that an act of the legislature may be unconstitutional in two ways ; first, because it assumes or seeks to confer power not legislative in its nature ; or, second, because it violates some specific provision of the National or State Constitution." ^ In a South Carolina case the court remarked, " It is clear, that statutes passed against the plain and obvious principles of common right and common reason, are absolutely null and void, so far as they are calculated to operate against those principles." And the court construed a statute contrary to its strict letter, in accord with natural reason, and declared that the legislature never contemplated the unjust consequence." " A 'statute which dispenses, in favor of some particular indi- vidual, with the general rules governing similar cases, does not come within the rightful attributes of legislative power, and is not to be regarded as law." ^ § 18. As a power taxation rests on the theory that full compensation is received by the individual in the benefit con- ferred by the carrying out of the purpose to which the pro- ceeds of the tax are devoted.* In Iowa, lands though within the limits of a city are not subject to taxes for general city purposes^ if no benefit accrues to them by reason of being within the city confines.^ Although, in the last case cited, the practical effect of this rule as exempting agricultural or other lands is reduced to a minimum, if not to zero, by the declaration that not only, " when land within the city is used for dwellings or business, ordinarily it cannot be claimed that it is free from taxation as city property," but " if held as city * Hanson ». Vernon, 27 Iowa, 51 (1869), citing Commonwealth v. Max- well, 27 P. St. 456; Mott v. Pennsylvania Central Railroad Co. 30 id. 37; Taylor ». Porter, i Hill (N. Y.), 140; Sedgwick's Constitutional Law, 174, 175, 515. » Ham V. McClaws, 1 Bay (S. C), 98 (1789). » Commissioners of Shawnee County v. Carter, 2 Eans. 133 (1863.) * Wynehamer v. The People, 13 N. Y. 404 (1856). * Morford v. Unger, 8 Iowa, 92 (1859); Langworthy v. Dubuque, 13 id. 86 (1862); Langworthy w. Dubuque, 16 id. 272 (1864); Buell v. Ball, 20 id. 282 (1866) ; O'Hare v. Dubuque, 22 id. 144 (1867) ; Deiman V. Fort Madison, 30 id. 542 (1870); Durant v. Kauffman, 34 id. 194 (1872). 25 §•19 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. property, to be brought upon the market as such, whenever it reaches a value corresponding with the views of the owner, it ought to be taxed as other city property," — yet the recog- nition of the principle that the judiciary will shield individuals from taxation for objects in which they, are not interested, is strong and clear. If the burden imposed is a flagrant and palpable departure from equity ; if it is imposed for the_, bene- fit of others or for purposes in which those objecting have no interest, and to which they are therefore not bound to contribute, it is not taxation but taking property for public use without just compensation.^ § 19. The opinion of Robertson, C. J., in Sutton's Heirs V. Louisville ^ contains a very strong assertion of the exist- ence of limitations inherent in the power of taxation. " The State Constitution contains no express restriction on the taxing power. But nevertheless, this power cannot be in all respects arbitrary and unlimited." The nature and object of taxation and the spirit of justice and equality pervading the Constitution, as well as the provision against taking private property without compensation, necessarily put limits to legis- lative action in this matter. The court held that special assessments upon owners of property benefited by the exten- sion of a street could not be sustained : " The public ought not to .decide for any citizen, how far, or whether at all, be will be peculiarly benefited by a public work or other thing for which his property is taken without his consent." What- ever may be thought of the particular application in this case,^ the general principle announced is certainly correct, viz., that the spirit of the Constitution and the nature of taxation 1 Morford v. Unger, 8 Iowa, 92 (1859). See § 29. ^ 5 Dana, 31 (1837). See also Lexington v. McQuillan's Heirs, 9 Dana, 518 (1840), in -which the court said that taxes must be imposed on the pub- lic, in whose name and for whose benefit they are required, and to whom those who impose them are responsible ; and though there may be some disci-imination in the subjects of taxation, yet persons of the same class, and property of the same kind must generally be subjected alike to the common burden, and exemptions can only be allowed where the owner is entitled to them by reason of public service. 8 See § 22. 26 INHERENT LIMITATIONS. § 21 put limits to legislative action. In another case. Robertson, C. J., said, " There are well defined limits within which the practical equality of the Constitution may be preserved, and which therefore should be deemed impassable barriers to legislative power. The legislature in the plenitude of its tax- ing power cannot have constitutional authority to exact from one citizen or even one county the entire revenue of the Commonwealth. Such an exaction, by whatever name the legislature might choose to call it, would not be a tax, but would undoubtedly be taking private property for public use." 1 To the same effect see Sharpless v. Mayor of Phil- adelphia ; 2 in which case Black, C. J., said, " A tax law must be considered valid, unless it be for a purpose in which the community taxed has palpably no interest, — where it is apparent that a burden is imposed for the benefit of others, and where it would be so pronounced at the first blush." § 20. In Shawnee v. Carter,^ the court refused to sustain an act of the legislature which changed rights and imposed burdens contrary to previously established law, and in favor of an individual ; so that the act if valid would have all the effect of a judgment, though in violation of the principle on which judgments are founded, the defendant not having been heard. Kingman, J., approved the rule laid down by Sedg- wick,* as the result of the cases, viz., " That a statute which dispenses, in favor of some particular individual, with the general rules governing similar cases, does not come within the rightful attributes of legislative power, and is not to be regarded as a law ; " and the judge remarks that, after a careful study of the authorities, he is convinced that there is a " strong and increasing disposition on the part of tlie judi- ciary to restrain the legislature from the invasion of private rights." § 21. In Covington v. Sbuthgate,^ the City of Covington 1 Lexington v. McQuillan's Heirs, 9 Dana, 513. 2 21 Pa. St. 168 (1853). » 2 Kans. 133-134: (1863). • Sedgwick on Statutory and Constitutional Construction, p. 177. 5 15 B. Monr. 491 (1854). 27 § 23 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. procured an act of the legislature including Southgate's land within the city, against the owner's consent, and then as- sessed him for city taxes. The land was appropriated to fields, pastures, and wood-land, and there was much vacant land between his lots and the populous parts of the city. The court held that the city taxes could not be constitutionally collected from Southgate, " until some portion of his* land shall be appropriated for lots or buildings, indicating that it is used as a part of the city, when she may lawfully exercise the power of taxation with respect to such portion." There was no necessity for this extension of boundary, and the mani- fest intent was to subject Southgate's land to taxation for the city's benefit. It was a subjecting of his property to the control of others, and to heavy burdens, imposed at their will and for theu* advantage, without any consent on his part or compensation made ; and the court considered that the case came clearly within the words of the judge in Cheaney v. Hooser,^ — a case where " it is palpable that per- sons or property are subjected to a local burden for the ben- efit of others, or for purposes in which they have no interest, and to which they are, therefore, not justly bound to contribute." § 22. An assessment may " so transcend the limits of equality and reason, that its exaction would cease to be a tax, or contribution to a common burden, and become extortion and confiscation. In that case it would be the duty of the court to protect the citizen from robbery under color of a better name." But an apportionment of a street assessment accoi'd- ing to frontage, without reference to the use of the improve- ments, though perhaps slightly unequal, is a substantial effort at just apportionment, and is valid.^ § 23. It is a fundamental principle in our government and laws, that individuals are protected in the enjoyment of their property, except so far as it may be taken in one of two ways, viz., as a public tax, upon principles of just equality, or for public use, with a just compensation, ascertained according 1 9 B. Monr. 344. See § 29. « Allen V. Drew, 44 Vt. 186-188 (1872). See § 19. 28 INHERENT LIMITATIONS. § 24 to the provisions of the Constitution. As money is property, the collection of every tax is taking property from the citizen, and, to be legal, must be referrible to one of the two modes above mentioned. The principle of just equality is, therefore, the governing one by which the validity of every tax levied by the legislature is to be determined. This equality can be secui'ed only by uniformity in levying the tax, and a periodi- cal valuation of tiie estate of every citizen. If the tax is laid to raise a revenue for the expenses of the state, it should be laid equally upon all the property in the state.^ The legis- lature have not the power to exact from a single individual, or class of citizens, or a single county, city, or town, the means of defraying the entire expenses of "the state ; for if this could be done, the constitutional prohibition could be evaded in all cases, and the legislature could take private property for public use, without compensation, under the vague and indefi- nite pretence of taxation. § 24. The distinction between constitutional taxation and the taking of private property for public use by legislative ^ For a discussion of the principle of equality and uniformity of taxa- tion under various State constitutions, see the following cases: Broadway Baptist Church v. McAtee, S Bush (Ky.), 508; Stinson v. Smith, 8 Minn. 366, 372; Sanborn v. Bice County Com., 9 id. 273; Comer v. Folsom, 13 id. 219; Holbrook ». Dickinson, 46 111. 285; Chicago v. Lamed, 34 id. 203; Ottawa v. Spencer, 40 id. 211; Primm v. Bellville, 59 id. 142; Madison County Court v. People, 58 id. 456; McVeagh v. Chicago, 49 id. 318; Dunham v. Chicago, 55 id. 357; Darling v. Gunn, 50 id. 424; Ducat ». Chicago, 48 id. 172; Bureau County Sup. v. Chicago, Bur- lington, & C. R. Co., 44 id. 229; Chicago & Northwestern R. Co. v. Boone County Sup., 54 id. 240; People ». Whyler, 41 Cal. 351; Crosby V. Lyon, 37 id. 242; Fletcher v. Oliver, 25 Ark. 289; Augusta City Council V. Augusta Nat. Bank, 47 Ga. 562 ; Kenny v. Harwell, 42 id. 416; Burch v. Savannah, Id. 596; Livingston v. Albany, 41 id. 21; Hale r. Kenosha, 29 Wis. 599; Daily v. Swope, 47 Miss. 367; Muscatine „. Miss. & Mo. R. Co., 1 Dill. C. C. (U. S.) 536; Glasgow v. Rowse, 43 Mo. 489; Bright v. McCullough, 27 Ind. 223; Howell «. Bristol, 8 Bush (Ky.), 493; High v. Shoemaker, 22 Cal. 363; Vasser v. George, 47 Miss. 713. See also Ferguson v. Landram, 1 Bush (Ky.), 548, holding that no State can tax her own citizens for aiding or opposing the prose- cution of a national war, for which they have been or are liable to be taxed by the general government. 29 § 24 FUNDAMENTAL PRINCIPLES CONTEOLLING TAXING POWER. power, may not be definable with perfect precision. But it is clear, that whenever the property of a citizen shall be taken from him by the sovereign will, and appropriated, without his consent, for the benefit of the public, the exaction should not be considered as a tax, unless similar contributions be made by that public itself; or rather, shall be exacted by the same pub- lic will, from such constituent members of the same com- munity generally as own the same kind of property. This is in accordance with the well-known maxim, that a com- mon burden shall be sustained by a common contribution.' The ascertainment of the value of all the property in the State or district where the tax is to be levied is essentially necessary to enable the taxing power to make such an assessment as the wants of the State or district may require, to apportion it among all the citizens of the State or district, and compel all to share equally in the common burden. Such are the principles by which the legislative power in tliis country is controlled in the levy of taxes, as laid down by all of the authorities. The difficulty seems to lie in their application to the facts of each particular case.^ In the language of Chancellor Kent: "It is not sufficient that no tax can be imposed on the citizens but by their representatives in the legislature. The citizens are entitled to require that the legislature itself shall cause all public taxation to be fair and equal, in proportion to the value of property, so that no one class of individuals, and no one species of property, may be unequally or unduly assessed."^ ' Apportionment of the burden is a necessary element in all taxation, and any attempt at the exercise of this power without it is absolutely void. Motz V. Detroit, 18 Mich. 495. See also Woodbridge v. Detroit, 8 Mich. 274. " People, ex rel. Post, u. Brooklyn, 6 Barb. (N. Y.) 209; Sutton's Heirs 0. Louisville, 5 Dana (Ky.), 28, 31; Lexiugton v. McQuillan's Heirs, 9 id. 513, 516; Opinion of the Justices, 4 N. H. 565; Baltimore v. Moore, 6 Har. & J. (Md.) 375, 382; People, ex rel. Griffin, v. Brooklyn, 4 N. Y. 419. ^ 2 Kent's Com. 331. A tax cannot be impased exclusively on any subdivision of the State to raise money for any purpose not peculiarly for its benefit. Sanborn v. Rice County Com., 9 Minn. 273. That 30 INHERENT LIMITATIONS. § 25 § 25. Iiimitatioii of the Tazing Fo'wer by Natural Justice, aside from the Provisions of the Constitution, denied. — One of the strongest cases afiQrming the illimitability of legislative exactions under the name of taxation, except so far as ex- a tax for a special purpose, leviable exclusively on real estate in a city, is void as discriminating' in favor of pei-sonal property, see Gilman v. Sheboygan, 2 Black (U. S.), 510. That the legislature has no power to exempt from taxes, but may commute, see Hunsaker v. Wright,. 30 111. 146; Daughdrill «. Ala. Life Ins., &c. Co., 31 Ala. 91; O'lCaue B. Treat, 25 111. 557. But see JefEerson Branch Bank v. Skelly, 1 Black (TJ. S.), 436; People v. Coleman, 4 Cal. 46. The legislature cannot set aside any race as special objects of taxation. Lin Sing v. Wash- burn, 20 Cal. 534. Nor provide unequal rates of taxation of property. Knowlton v. Rock County Supervisors, 9 Wis. 410; Attorney-General V. Winnebago, &c. Plank Road Co., 11 id. 35. Nor provide different processes of collection for different individuals. McComb v. Bell, 2 Minn. 295. As to the constitutionality of local and special assessments and better- ment laws, see Dorgan v. Boston, 12 Allen (Mass.), 223; Hill v. Higdon, 5 Ohio St. 243; Reeves v. Wood County Treasurer, 8 id. 333; Northern Ind. R. V. Connelly, 10 id. 159; Maloy v. Marietta, 11 id. 636; Thompson V. Wood County Treasurer, 11 id. 678; Burnett v. Sacramento, 12 Cal. 76; Creighton v. Manson, 27 id. 613; Emery v. San Francisco Gas Co., 28 id. 345; Walsh v. Mathews, 29 id. 123; Egyptian Levee Co. v. Hardin, 27 Mo. 495; St. Joseph v. Anthony, 30 id. 537; St. Joseph v. O'Donoghue, 31 id. 345; Skinner's Ex. v. Hutton,33 id. 244; State o. N. O. Nav. Co. 11 Martin (La.), 309 ; Wallace v. Shelton, 14 La. Ann. 498; Bishop v. Marks, 15 id. 147; State v. New Orleans, Id. 354; Re Dorrance St., 4 R. I. 230, 255; Anderson v. Kerns Drain Co., 14 Ind. 199; Webster v. Alton, 29 N. H. 369; Nichols V. Bridgeport, 23 Conn. 189; Brewster u. Syracuse, 19 N. Y. 116-, Ke New York Prot. Episc. Pub. School, 31 id. 574; People, exrel. Crowell, V. Lawrence, 36 Barb." (N. Y.) 177 ; State v. Jersey City, 24 N. J. Law, 662 ; Miller v. Craig, 11 N. J. Eq. 175; Schenley v. Alleghany, 25 Pa. St. 128; Magee v. Commonwealth, 46 id. 358; Wray v. Pittsburgh, Id. 365; Methodist Prot. Church ii. Baltimore, 6 Gill (Md.), 391; Fairfax County Levy, 5 Call (Va), 139; Lockhart v. Harrington, 1 Hawks (N. C), 408; Winn V. Macon City Council, 21 Ga. 275; Stein v. Mobile, 24 Ala. 591; Williams v. Cammack, 27 Miss. 209, 219; Alcorn i>. Hamer, 38 id. 652; Woodbridge v. Detroit, 8 Mich. 274; Shaw v. Dennis, 10 111. 405; Peoria V. Kidder, 26 id. 351 ; Ottawa v. Spencer, 40 id. 211 ; Nichol v. Nashville, 8 Humph. (Tenn.) 252; Soens v. Racine, 10 Wis. 271; Lumsden v. Cross, Id. 282; Bond v. Kenosha, 17 id. 284; Stinson v. Smith, 8 IVIinn. 366; Burnes v. Atchbon, 2 Kan. 454; Hines v. Leavenworth, 3 id. 186. 31 § 26 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. pressly restrained in the Constitution, or held in check by regard for constituencies, is GuiKord v. Supervisors.^ In that case the legislature authorized a town to raise a tax to reim- burse money paid by private persons, and for which they had no legal claim against the town, and the repayment of which the town had voted against. The court held that as there were no limits put to the discretion of the legislature as to the purposes for which taxes should be raised, the court could put none. " The legislature is not confined in its appropri- ation of the public moneys, or of the sums to be raised by tax- ation in favor of individuals, to cases in which a legal demand exists against the State. It can thus recognize claims founded in equity and justice in the largest sense of these terms, or in gratitude or charity." " Whenever the constitutional formalities are observed, the legislature has the right to ap- propriate the public moneys for local or private purposes, and to impose a tax on the property of the whole State, or any poi'tion of the State, or any particular and specified kind of property." In this case justice was done upon the facts, but the sweeping assertions that the judiciary cannot relieve against exactions under the name of taxation, no matter what the purpose, that the legislature is the sole judge of the pur- pose for which and the manner in which money shall be taken from the people, have been whisked away by the breath of a more enlightened reason. § 26. In People v. Brooklyn,^ a public street was graded and the cost assessed upon the owners and occupants of lands benefited thereby, as provided for in the charter of the city. The Supreme Co;urt held that the assessment was unconsti- tutional, being neither an exercise of eminent domain nor a just use of the taxing power. It was conceded that the purpose was a public one, for which a general tax upon tlie whole city would have been proper, but it was argued that it was improper to lay such a tax on the adjacent land-owners exclusive of other citizens. But the Court of Appeals held that except as limited by express constitutional provision, the rule of apportionment must be determined by the legislature, not by » 13 N. Y. 144 (1855). » 4 N. Y. 419 (1851). INHERENT LIMITATIONS. § 26 the judiciary. Every citizen must bear a portion of the public burden ; " what portion, is to be determined iy the legis- lature." "The people have never ordained that taxation must be limited or regulated by either of the rules laid down by the Supreme Court. They have not ordained that taxation shall be general, so as to embrace all persons or all taxable persons within the State, or within any district ; nor that it shall or shall not be numerically equal, as in the case of a capitation tax ; nor that it must be in the ratio of the value of each man's land, or of his goods, or of both com- bined ; nor have they ordained or forbidden that a tax shall be apportioned according to the benefit which each taxpayer is supposed to receive from the object on which the tax is expended. The application of any one of these rules to all casfes would be manifestly oppressive and unjust. Either may be rightfully and wisely applied to the particular exigency to which it is best adapted." A property tax for the pur- poses of the general government is just, because it apportions the burden to the benefit more nearly than any other inflex- ible rule of general taxation. A rich man derives more ben- efit from taxation, in the protection and improvement of his property, than a poor man ; and ought to pay more. But the precise amount of each man's benefit is difficult of esti- mate ; and so a property tax is adopted rather than an estimate of benefits. In local taxation, however, for special purposes, the benefits may sometimes be seen and estimated with rea- sonable certainty. At least, this has been supposed to be true by the legislature, whose duty it is to prescribe tlie rules of apportionment, " and whose determination of this matter, being within the scope of its lawful power, is conclusive." It was said by the Supreme Court that a tax to be valid must be apportioned " upon principles of just equality," and upon all the property in the same political district ; and that this is a fundamental principle of free government. Upon this point Euggles, J., said : " This is new, and, it seems to me, danger- ous doctrine. It clothes the judicial tribunals with the power of trying the validity' of a tax by a test neither prescribed nor defined by the Constitution. If by this test we may con- voL. I. — 3 33 § 28 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. demn an assessment not apportioned according to the relation between burden and benefit, we may with far better reason condemn a capitation tax on the ground that numerical equality is not just equality ; or a general property tax for a local object, because it compels one portion of the commu- nity to pay more than their just share for the benefit of another portion. All discriminations in the taxation ofi prop- erty, and all exemptions from taxation on grounds of public policy, would fall by the application of this test. If this doc- trine prevails, it places the power of the courts above that of the legislature in a matter affecting not only the vital in- terests, but the very existence of the government." "The interest, wisdom, and justice of the representative body, and its relations with its constituents, furnish the only security against unjust and excessive taxation, as well as against un- wise legislation." § 27. In McCuUoch v. Maryland^ the United States Supreme Court remarked that "the power of taxing the people and their property is essential to the very existence of govern- ment, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the gov- ernment may choose to carry it. The only security against the abuse of this power is found in the structure of the gov- ernment itself. In imposing a tax, the legislature acts upon its constituents." The legislative power is not only unlimited as to the extent of taxation to be imposed, but as to the man- ner ; whether general, upon all property of a locality, or upon such only as is supposed to be benefited by a particular pub- lic improvement.^ § 28. In Kirby v. Shaw ^ the legislature had authorized the county commissioners of Bradford County to add $500 per annum for a certain number of years to the taxes of the bor- ough of Towanda, to defray the expense of erecting a court- house and jail in that borough. The court held that the law 1 4 Wheat. 428. 2 Matter of Van Antwerp, 56 N. Y. 265 (1.874); Pittsburg, F. W., & C. Ry. Co. e. Commonwealth, 66 Pa. St. 73 (1870). » 19 Pa. St. 260 (1852). 34 INHERENT LIMITATIONS. § 28 was valid ; saying, " In every government, taxation is an attri- bute of sovereignty, — exercised at the will of the monarch in a despotism, and in accordance with the organic law in a republic. ... In every American State, the people in the aggregate constitute the sovereign, with no limitation of its power but its own will. ... It is a postulate of a State Con- stitution which distinguishes it from the Federal, that all the power of the people is delegated by it, except such parts of it as are, specifically reserved. As regards taxation, there is no limitation of it. Equality of contribution is not enjoined in the Bill of Rights, and probably because it was known to be impracticable. ... If equality were practicable, in what branch of the government would power to enforce it reside ? Not in the judiciary, unless it were competent to set aside a law free from collision with the Constitution, because it seemed unjust. It could interpose only by overstepping the limits of its sphere, — by arrogating to itself a power beyond its province. It is its peculiar duty to keep the lines of the Constitution clear, and not to stretch its power in order to correct legislative or executive abuses. Every branch of the government, the judiciary included, does injustice for which there is no remedy, because everything human is imperfect. The sum of the matter is, that the taxing power must be left to that part of the government which is to exercise it. But what if this power were so managed as to lay the public bur- thens on particular classes in ease of the rest ? It is illogical to argue from an extreme case, or from the abuse of a power to the negation of it. ... A legislature which had imposed a corrupt tax would never impose another." When it is mani- fest that a burden is put on a town, some part of which should be borne by the county at large, it would seem a very proper case for judicial interference ; and the fact that express words of prohibition cannot be found in the Constitution seems hardly a reason for admitting the constitutionality of a power destructive of the liberty and rights of property intended to be secured by the Constitution. The very existence of the Constitution is a prohibition on such legislation. A man standing upon a ladder has no need to make proclamation 35 § 80 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. that he does not wish his foundation kicked from under him ; his position is notice, unless, mayhap, he has to deal with men as blind physically as was the judge in the above ease upon the justice side of his mind. § 29. In Athena v, Long^ the court said they could not give "assent to the proposition, however respectable the authority on which it rests, that the courts may set up their notions of equality and fairness, so as to control the legisla- ture in its judgment, when the Constitution contains no re- striction." The motives which induce a city to take land within its limits cannot be inquired into, in an action to re^ strain collection of taxes levied by it on the lands. Though lands used only for agriculture are brought into the city solely to subject it to city taxation, the courts cannot interfere. A statute giving the city authority to tax all property in its limits cannot be declared unconstitutional merely because it is unjust, or violates the spirit of the Constitution ; and it is only the taking without compensation of specific pieces of the property of an individual that is prohibited by the Con- Btitution.2 § 30. The Presumption is strong in Favor of the Legislature,^ and of the validity of a tax law ; * and the courts will only interfere in a clear, case. A mere inequality or hardship to particular individuals in the working of a general law will not make the law void,^ nor can even equity relieve against what is only an indiscreet exercise of a clearly granted discretion.® " The right of a state to tax is necessary to its very, exist- ence, and its power, except when restrained by some con- stitutional limitation, or by the fundamental principles of natural justice (which control all legislation) is supreme." '' 1 54 Ga. 330 (1875). 2 Logansport v. Seybold, 59 Ind. 227, 228 (1877) . See contra, §§ 18, 21. ' See § 15. * Speer v. School Directors, 50 Pa. St. 150 (1865) ; English v. Oliver, 28 Ark. 317 (1873). 6 § 31 » Wharton v. School Directors, 42 Pa. St. 359 (1862). ' Coite V. Society for Savings, 32 Conn. 184 (1861). 36 PRESUMPTION IN PATOR OP LEGISLATION. § 31 In Maltby v. Reading & Columbia R. R. Co.^ the court said, " The power of taxation, which is the corner-stone of the government, is lodged exclusively in the legislature, and de- pends wholly on the discretion of that department. A wanton abuse of it might be arrested by the judicial arm ; but such an interference could proceed only on the ground that the legislature had transcended their functions, and enacted some- thing more than a tax law. So long as they confine them- selves to that which is in the nature of a tax law, their powers are subject to no judicial review : they are only responsible to the people." In Pullen v. Commissioners^ the court said, " It will be assumed in the present case as an axiom not needing discussion, that the legislatui'e has an unlimited right to tax all persons domiciled within the State, and all property within the State, except so far as that right has been limited either by express words of the State Constitution, or by plain implications. The power to tax is an attribute of sovereignty so vital and so necessary to the existence of a state, that it can- not be held to have been forbidden as to any particular subject, except where the policy obviously commends itself to our sense of justice, or is most clearly expressed." To make it possible for a court to declare an act void, it must be clearly not an exercise of legislative power at all, or else be forbidden by the Constitution expressly, or by clear implication. The case must be free from all doubt.^ § 31. A court cannot declare a tax law void merely be* cause it is unjust or unequal.* The money in this case was payable intd the public treasury, and the only claim was that the tax was oppressive and unequal ; but the court held that the legislature had a right to classify ; " some things may be assessed, others not ; and even special exemptions are not Uli- constitntional. There is no provision in the Consitution that taxation shall be equal." * In Turner v. Althaus ^ an effort was made to escape from taxes levied on lands unoccupied 1 52 Pa. St. 145 (1866). = 66 N. C. 362 (1S72). « Cotflmonwealth v. Moors, 25 Grat. 954 (1875). * Weber ». Reinhard, 73 Pa. St. 373 (1873). » 6 Neb. 70 (1877). 37 § 32 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. and unsettled, except for agricultural purposes, lying within the limits of Omaha. The tax did operate oppressively in individual cases, but the court held that perfect equality was unattainable, and a law could not be set aside because un- wise or unjust. So long as the legislature " does not impose burdens under the name of taxation which are not taxation, its decisions as to what is proper, just, and politic, both in respect to the subjects of taxation and the kind and amount of taxes, must be final and conclusive." But " the legisla- tive department cannot, by the exercise of legislative power in any form, take the private property of one citizen and give it to another, or to a corporation." It must however appear that a legislative act is " clearly subversive of the Constitu- tion," in order to give the judiciary a right to declare it void. The real fact is that no precise line can be drawn between the judicial and the legislative functions. As C. J. Marshall said,^ "How far the giving of the law may involve every other power, in cases where the Constitution is silent, never has been and perhaps never can be definitely stated;" and Comstock, J., said in relation to this matter.^ " I am reluctant to enter on this field of inquiry, satisfied as I am that no rule can be laid down in terms which may not contain the germ of great mischief." The only thing the courts can do is to settle the precise case before them. § 32. Taxation and Representation.^ — It is not just that a nation or community should have no voice in the expenditure of the money it raises. This is the doctrine of the Declara- tion of Independence, — " Taxation without representation is tyranny," and was settled for all time by the victories of the Revolution. But the maxim that taxation and representation go together does not apply to indiHduals, but only to com- 1 Fletcher v. Peck, 6 Cranch, 135,136 (1810); saying also, "It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and if any be pre- scribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation ? " ' Wynchamer v. The People, 13 N. Y. 392 (1856). « See § 15. 38 EQUALITY. § 34 munities'as such, and a city may tax those who do business within her limits, though they reside and do their voting else- where.* All principles are limited by others, and to carry this just rule that taxation and representation should go arm in arm beyond state and communities, and claim, as some wish, that every individual taxed must be represented in the government, would defeat the ends of justice and public policy instead of forwarding them. § 33. Taxation is correlative to Protection.^ — It may not be enforced against persons not amenable to or protected by our laws, yet may be against property or rights coming with- in the limits of the Commonwealth. If non-residents lend their money to individuals or corporations in this State (Pa.), the State may tax the same, and make the debtor the collector, ordering him to withhold the amount from his obligation, and such a law is no impairment of contract. The person of the non-resident cannot be taxed; but his money lent to our institutions may be, on account of the protection afforded his claim, or the property on which it is secured, and the tax may be collected through the medium of the debtor.^ § 34. Equality.* — The ideal of taxation is that each should pay toward the support of government and public expense in proportion as he is interested in, that is, benefited by those expenditures. A full consideration should be given, an exact balance reached, in the case of each individual taxpayer, as well as in the case of districts and classes, so that one man may not have to pay for what another receives. Any very near approach to this ideal is however unattainable,^ in con- sequence of the complexity of the subject, and the impossi- bility of determining each man's proportional benefit, and the 1 Moore v. Commissioners of Fayetteville, 80 N. C. 156 (1879). " See § 15. » Pittsburg, F. W., & C. Ry. Co. v. Commonwealth, 66 Pa. St. 76 (1870). * See § 15. < Commonwealth v. Savings Bank, 5 Allen, 436; Allen v. Drew, 44 Vt. 186; Grim v. School District, 57 Pa. St. 437; Comer v. Folsom, 13 Minn. 222; Weber v. Reinhardt, 73 Pa. St. 373. 39 § 34 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. immense cost of such determination even if it were possible. General lines have to be drawn, and until it is manifest that the legislature have disregarded the principle of equality, made no effort to conform to it, and that the tax operates to produce gross inequality, so that it cannot be deemed in any just sense proportional to benefit, the courts will not inter- fere.^ If this is manifest the courts will declare the action of the legislature void, as where a statute taxes any of a cer- tain kind of property brought into the State after a certain date named.2 If the law reaches all of a class, either of per- sons or things, it is well ; but if it discriminates between per- sons or things bearing the same relation to the purposes of the taxation, it is void ; as where loans of money are taxed, except those made by certain named persons, or residents of a particular locality.* A law imposing the same tax on all carrying on a certain business is uniform, and is not void because unequal, by reason of exacting the same amount from one who does a small business as from one who does a large one.* It is of the essence of the power of taxation that it should not be used to take from one class of citizens to en- rich another class, either directly or by relieving them of their fair share of the burdens of government. In its appli- cation, however, this principle is limited by the boundaries of the practical ; and while it is quite possible to prevent the taxing of A. beyond the point to which B. is taxed under sub- stantially similar circumstances, it is also clear that in great part the equalizing of burdens resting on citizens under dif- 1 Kirby v. Shaw, 19 Pa. St. 260 ; Dubuque v. Ry. Co., 47 Iowa, 196; Cobum V. Richardson, 16 Mass. 215; Reals v. Amador Co., 35 Cal. 624 ; Howell V. Bristol, 8 Bush, 493 ; Lowell v. Oliver,' 8 Allen, 247 ; Athens V. Long, 54 Ga. 330: Ould v. Richmond, 23 Grat. 473. See last note. ^ Graham y. Chautauqua Co., 31 Kan. 473. » St. Louis V. Spiegel, 75 Mo. 145; Lin Sing v. Washburn, 20 Cal. 53; Franklin Ins. Co. v. State, 5 W. Va. 349 ; State v. Charleston, 12 Rich. 732; O'Neal v. Bridge Co., 18 Md. 23; Nashville v. Althorp, 5 Cold. 554; Field v. Commissioners, 36 Ohio St. 476; State v. Readington Tp. Com., 36 N. J. 66; State v. Parker, 32 id. 426 ; Duraoh's Appeal, 62 Pa. St. 491; Fletcher v. Oliver, 25 Ark. 289. * Youngblood v. Sexton, 32 Mich. 414 (1875). 40 APPORTIONMENT. § 35 fering circumstances must be left to the operation of the natural laws of exchange, which acting on values under fixed and enduring laws will ultimately produce equilibrium. § 35. Apportionment.^ — " Taxation and assessment imply apportionment. Each person must share the burdens of ta-x- ation and assessment equally with all others in like situa- tion." ^ Equality in the imposition of the burden is of the very essence of the power itself, and though absolute equality and absolute justice are never attainable, the adoption of some rule tending to that end is indispensable. ^ " The control of tlie State in regard to taxation is certainly very great, but it is by no means unlimited, and it cannot be exercised in an arbitrary manner, nor without regard to those principles of justice and equality On which it is based. It is of the es- sence of all taxation that it should compel the discharge of the burden by those upon whom it rests ; and if the State should attempt to compel any single county, by taxation, to pay the salaries of the State officers, or the expenses of the legislature, no one would for a moment doubt that the act would be unconstitutional ; " and the court held that a law im- posing a tax on the commerce of Muskegon, to replace a State fund, was void on this ground, and remarked that the doctrine that no restraints whatever rest upon the power of the legisla- ture to select the objects of taxation, cannot be sound under any free government.* The legislature cannot assess a tax on a body of individuals selected out of a general class, without apportionment or equality as between them and the general class, or as between themselves. It is of the very essence of taxation that it be levied with equality and uniformity, and to this end, that there should be some system of apportionment.^ Uniformity does not require the same rule of local taxa- tion in all the districts of a State. It applies to taxation of a general nature, as to the State, and taxation for local objects may vary with the circumstances of the district; for exam- » See § 15. 2 Stuart v. Palmer, 74 N. T. 189 (1878). » People V. Salem, 20 Mich. 474 (1870). * Ryerson v. Utley, 16 Mich. 276 (1868). 6 Albany City National Bank v. Maher, 20 Blatch. 342 (1882) . 41 § 36 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. pie, school taxes may be levied by commissioners in each county.^ It is sufficient if in each district the burden is uniformly distributed. The government may authorize differ- ent rates in different districts, for the needs and circumstances of various localities are not the same.^ The legislature may vary the rule or method of taxation, in respect to different descriptions of property, or exempt altogether one class and tax others.* State taxation of corporations may be based on the aggregate capital, while local taxes may be assessed upon the actual value of each shareholder's stock. There is no necessity that the rules should be the same.* § 36. Exemptions ^ are implied or express. A State could tax its own property if it saw fit, but it would be foolish to increase public expenses by levying a tax for the payment of which another tax must be laid. The State would have to tax itself to pay to itself the taxes upon itself. Therefore in any general levy it is implied that property of the government or any of its municipalities, or corporations of which the State is practically the corporator, and the taxes on which would have to be paid out of public money, is exempt.^ So a ^ Commissioners of Public Schools v. County Commissioners of A. County, 20 Md. 457 (1863). 2 People V. C. P. K. Co., 43 Cal. 398 (1872). « Davenport v. Miss. & Mo. R. Co., 16 Iowa, 357 (1864). * Insurance Co. v. Baltimore, 23 Md. 311, 312 (1865). B See § 15. » Trustees of University v. Champaign County, 76 lU. 184 (educa- tional property) ; Chicago v. People, 80 id. 384 (school-fund property) ; Louisville v. Commonwealth, 1 Duv. 295 (city hall); State v. Gaffney, 34 N. J. 133 (water-works) ; Rochester ». Rush, 80 N. Y. 302 (water- works) ; Worcester County v. Worcester, 116 Mass. 193 (court-house and jail) ; People v. Doe, 36 Cal. 193 (cemetery) ; Board of Regents v. Hamil- ton, 28 Kan. 376. A city may, however, hold property not for govern- mental purposes' but for its own profit, in its social and commercial capacity as a private corporation ; and some cases hold such property not to be impliedly exempt. Louisville v. Commonwealth, 1 Duv. 295. See Commissioners v. Duckett, 20 Md. 468; Bailey v. New York, 3 Hill, 531; Appl. of Des. Co. 48 Iowa, 324. Other cases do not seem to limit the implied exemption. West Hartford ». Water Commissioners, 44 Conn. 360 (water- works) ; St. Louis v. Gorman, 29 Mo. 593 (pai-k), and cases above. 42 EXEMPTIONS. § 36 general grant of the power of taxation to a city does not give authority to tax State or county property. Express exemp- tions may be properly made wherever there is a sufficient consideration moving to the public, — considerations that would warrant positive taxation, such as the encouragement of industry,^ manufactures,^ home life,^ schools,^ libraries," churches,^ or charitable institutions. And the legislature is the judge as to what classes of persons or things shall bear taxation ; and it is only when invidious exemption is made by the selection of particular persons or things from the class to which they belong, and make them the objects of capri- cious favor, that the courts can interfere. Accidental omis- sions, or double taxation resulting from the operation of general taxation laws, are not matters that will nullify the taxes.'^ But wherever equality in taxation is enforced, no person or thing can be made to contribute twice to the same burden, when other persons or things of the same class and bearing the same relation to the burden contribute but once.* 1 Smith V. Osborn, 53 Iowa, 474. " New Orleans v. Arthurs, 36 La. Ann. 98; Gardiner, &c. Co. v. Gar- diner, 5 Me. 133. » Stewart v. Corbin, 25 Iowa, 144; Oliver v. White, 18 S. C. 235. * St. Joseph's Church v. Assessors, 12 R. 1. 19 ; State v. Ross, 24 N. J. 497. ^ Providence Athenseum v. Tripp, 9 R. I. 559. « St. Mary's Church v. Tripp, 14 R. I. 307; State v. Krollman, 38 N. J. 323; Chapel of Good Shepherd v. Boston, 120 Mass. 212; Workingtnen's Aid Society v. Lynn, 136 id. 283; Monticello Seminary v. People, 108 111. 398; State v. Addison, 2 S. C. 499; Bangor v. Masonic Ix)dge, 73 Me. 428; Delaware County Institute v. Delaware County, 94 Pa. St. 163; Donahugh's AppL, 86 id. 306; Savannah o. Solomon's Lodge, 53 Ga. 93; Hennepin County v. Grace, 27 Minn. 503. ' West Chester Gas Co. v. Chester County, 30 Pa. St. 232; Eberville Coal Co. V. Commonwealth, 91 id. 54; Mayes v. Erwin, 8 Humph. 290; Weeks v. Milwaukee, 10 Wis. 262; Wilson v. Wheeler, 55 Vt. 446; Spear v. Braintree, 24 id. 414 ; Watson v. Princeton, 4 Met. 602 ; Williams V. School District, 21 Pick. 75; State v. Collector of Jersey City, 24 N. J. 108 ; State v. Maxwell, 27 La. Ann. 722. 8 State 0. Sterling, 20 Md. 502; Chicago, &c. Co. v. Miller, 72 HI. 144; Waltham Bank v. Waltham, 10 Met. 334; Livingston v. Paducah, 80 Ky. 636 ; Bank of Georgia v. Savannah, Dudley, 130; State v. Tunis, 23 N. J. L. 546. 43 § 37 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. The presumption is always against an intent on the part of the legislature to cause double taxation.^ At bottom an exemption not on proper consideration is taxing one portion of the community for the benefit of another portion; and wherever the legislature manifestly steps outside of the power to tax, and undertakes to confiscate from A. to give to B., the judicial arm will lend its powerful protection. But in the case of exemption of classes of persons or things, it can rarely, if ever, be clear that a consideration is lacking. The problem is too complex for any certain determination, and the only way is to leave the legislative discretion free of all checks but regard for the interests of the people. If they err or are corrupt the ballot must come to the rescue. No surrender of the taxing power by the legislature is in general to be presumed ; but where the property of a corporation is taxed in a specified manner, and no design is intimated of subjecting it to further burdens, its property will be exempt from taxation under general laws. The presumption against double taxation is the basis of this rule.^ § 37. Double Taxation. — There are two varieties of double taxation : (1) one which produces no manifest inequality be- tween persons in the same circumstances ; for example, a tax on houses by value in common with other property, and a tax on the business of building, or a tax on a merchant's stock in common with other property, and a tax on his business, or a State tax on the shares of a corporation, and also a town or county tax on the corporate lands, or a tax on one kind of property far greater than that on another kind, or a tax ort certain persons as being specially benefited by a street im- provement, and also a general tax on the same persons in common with the whole city on account of their general in- terest ; and (2) one whicli does produce manifest inequality between persons in the same situation as to the intef est ; for 1 Salem Iron, &c. Co. u. Dativers, 10 Mass. 51i; Amesbury Woolen, &c. Co. V. Amesbury, 17 id. 461 ; People v. Commissioners, 95 N. Y. 554; Savings Bank v. Portsmouth, 52 N. H. 17; Savings Bank v. Nashua, 46 id. 389-398; Board of Revenue v. Gas Light Co. 64 Ala. 269. 2 New York & Erie R. R. Co. .. Sabin, 26 Pa. St. 245 (1856). 44 DOUBLE TAXATION. § 37 example, a general tax on all the persons interested and also a special tax on a portion of them not any more interested than the others. In the absence of constitutional provisions, only the latter class of cases can be reached by judicial power. The courts cannot interfere in the first class of cases ; individual hardships, or the probable inequality of contributors resulting from general laws, cannot vitiate the laws ; such things are in- evitable. It must be manifest that the laws are not made with a view to any just rule of apportionment before the judges will act merely on principles of natural justice ; wherefore it seems that the mere existence of double taxation will not avoid the taxes. The legislature can tax the persons interested at a certain rate named by an act of June 10, and on June 11 may pass a second act taxing the same persons for the same pur- pose at the same rate again, or a different one ; the amount to be raised for a given purpose is entirely a matter of legisla- tive discretion, unless in the case of a local purpose, the very nature of which bears upon its face the limit. If, however, the State Constitution provides that all property shall be taxed in proportion to its value, or makes other similar provision, many cases of double taxation otherwise beyond reach of the • judiciary will be swept within its cognizance. Not all cases will be reached however even by such a law, for the opportu- nity of piling up taxation by means of licenses to do business, income taxes, and indirect taxation will still exist. The presumption against the legislative intent to produce double taxation is very strong, and will overcome the force of a general law including property already taxed. Where the legislature taxes one upon shares in a foreign corporation, it will be construed as intended only to tax the shares so far as they represent personal property, which by the law of nations has its locus for taxation at the domicil of the owner.^ So where the law said that " every person " should be taxed in the town where he resides, for his poll and personal estate, it was held that a corporation was not a person within the statute, since such a construction would result in double taxation, which it is not to be presumed the 1 Holton V. Bangor, 23 Me. 264 (1843). 45 § 37 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. legislature intended. Perley, J., remarks, " It is a funda- mental principle in taxation that the same property shall not be subject to a double tax, and where it is once decided that any kind or class of property is liable to be taxed under one provision of the statutes, it has been held to follow as a legal conclusion that the legislature could not have intended the same property should be subject to another tax, though there may be errors in the law which would seem to imply that it was taxed a second time." ' Taxing corporation shares puts one assessment on the real estate of the corporation, and it would seem unjust to again assess the land. But when it is considered that in estimating the share of the State and county burdens to be borne by a town, all the land in the town is taken into account, it will be seen that it would be unjust if such real estate, by being transferred to another owner, should be ex- empted from contributing to the discharge of such taxes.^ The true method is to deduct the land of a corporation in assess- ing its shares. In Pennsylvania, however, it is held that the real and personal property of a corporation may be taxed, though it pays a tax on the stock which purchased it. The ■power of the legislature to tax twice is as ample as to tax once. And it is done daily. "Equality of taxation is not required by our Constitution." ' So a resident of Rhode Island holding shares in a Massachusetts Corporation may be taxed upon them in both States.* One who sells goods may have to pay a license in proportion to the value of the sales, though the goods have been taxed in the hands of his vendor.^ Shares of a railway company may be taxed independently of any taxation on the franchise or property of the corporation, or 1 Savings Bank v. Nashua, 46 N. H. 398 (1866). See Smith v. Exeter, 37 N. H. 556 (1859) ; Smith v. Burley, 9 N. H. 423. = Salem Iron Factory Co. v. Danvers, 10 Mass. 517 (1813). » Pittsburg, F. W., & C. R. Co. v. Commonwealth, 66 Pa. St. 78 (1870). * Dyer v. Osborne, 11 E. I. 321 (1876). See also Worth v. Ashe County, 82 N. C. 421 (1880) ; Whitehall v. Northampton County, 49 Pa. St. 519. ■i Mayes v. Erwin, 8 Humph. 290 (1847). 46 THE PURPOSE MUST BE A PUBLIC ONE. § 38 even though the real estate of the compaay is by law exempt from taxation.^ § 38. The Purpose must be a Public One. — The legislative power does not extend to doing anything for private purposes. It is the agent of the public, and must act for the public. Some purposes in which the public is really and undoubtedly interested may, nevertheless, be much better accomplished by private enterprise than by public action, and it is the duty of the legislature to infringe on the liberties of individuals as little as possible, and not attempt to do for them what they can do as well or better for themselves. This matter, however, except as it may possibly under some circumstances bear on the question of consideration moving to those who are taxed, is entirely a subject for legislative discretion. When the money is raised and applied or expended under public control, the legislatui'e always is the final judge, as between it and the courts, of the question whether the purpose can be better accomplished by public or private action ; but when the money is passed over to a corporation controlled by private parties, the question may come within the sphere of the judi- ciary, in the course of its duty of deciding if the taxation is without consideration. This matter of consideration we have spoken of in §§ 10 and 15 ; but there is one point constituting the chief difficulty in the application of the principles there laid down, which must be noticed here. The point referred to is whether it is proper to raise money by taxation in aid of an enterprise controlled by a private person or corporation, in order to secure the incidental benefits that will naturally come to the public from the undertaking. It has been argued and held that money raised by taxation must be expended directly for a public purpose, not indirectly, as by expending it in aid of an enterprise carried on by private persons pri- marily for private benefit, the only interest of the public being in the incidental benefits to the community resulting from the undertaking aided ; and this is true, in the absence of proof that benefits incidental to the enterprise are really the primary object of the expenditure of the public money, 1 Belo V. Forsyth County, 82 N. C. 415 (1880). 47 § 38 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. and are secured, that is, not left to the caprice of the private power conducting the enterprise, and perhaps that it is doubt- ful if private enterprise alone and unaided would produce the desired result.^ For where this proof is lacking, if such a purpose were public, then are there no other. All private enterprises for the creation of wealth tend to benefit society, and money expended to aid a private individual in any way could be justified by the incidental advantage to the com- munity resulting from the prosperity of each individual.* This principle manifestly carries in its face its own absurdity and refutation. The public money must be expended to buy a result in which the public has an interest, not to buy some- thing the title to which is in private parties, on whose man- agement must wholly depend the issue of good or ill to the public. An individual ^ can buy a certain article or parcel of land, or contract for a certain privilege or right to be enjoyed by himself,^ or he may give his money to another, or invest it in a business loaned by a private person or a corporation, and run for profit ; but the State can do only the first. The primary and proximate object of expenditure must be a public one. Where neither the building or property in which the money is invested is owned or controlled by the* public, nor a contract right is secured to the public by the expenditure, but the whole advantages are the incidental benefits naturally flowing from a private undertaking independently of any public action, the purpose is not deemed a public one.^ If the advantages would come to the public anyway, that is, if the enterprise would be carried forward to the same public bene- fit without public action, clearly the taxation is without con- sideration. Perhaps the cases can be best harmonized on the principle that the transfer of public moneys to institu- tions controlled by private persons for private profit, and ^ For example, taxation in aid of a grist mill, the tolls of -whioh the legislature should have a right to regulate, was sustained, where it seemed that in a new country such a mill was a public necessity, and impossible of establishment without public aid. Burlington v. Beasley, 94 TJ. S. 310. 2 Opinions of Justices, 58 Me. 592; Loan Association v. Topeka, 20 Wall. 664; Commercial National Bank v. lola, 2 Dill. 353. » Curtis V. Whipple, 24 Wis. 354. 48 THE PURPOSE MUST BE A PUBLIC ONE. § 38 not in the way of securing a definite contract right for the public to some service from the institution which would not otherwise be obtained, is a fact so strongly negativing the public character of the purpose, that, in thie absence of other circumstances showing a consideration for the expenditure, it will not be sustained, that is, it is a fact which shifts the burden of proof.^ A State has no right to tax its citizens to raise money to invest merely for the sake of making profits for the benefit of said citizens. This is not taxing each one with his share of public burdens, but is stepping in to control the management of individual property for in- dividual benefit, which must be left to the individual who is interested, and who can do it probably to better advantage, and certainly without the expenses of ofiicial collection of taxes and declaration of dividends, etc. In applying this principle that taxes are to be used for a public and not a private interest, the courts will be governed mainly by the course and usage of the government,^ and will only inter- fere with the legislative decision when the violation of the principle is clear, and the reason for interference cogent.' The presumption is strongly in favor of the legislature, and any substantial public interest will be sufficient.* But that there is a limitation as to the purpose of taxation, growing out of its very nature, is clear on the authorities.^ ' Some purposes are universally recognized as proper,^ others as improper,^ while still others are in dispute, — notably the ques- tion of railroad aid.' On principle, it would seem that cir- cumstances might exist making it proper to put public money into an enterprise controlled by private persons, a considera- tion being thereby gained to the public that is taxed, which it would otherwise lose ;^ but, as already remarked, the presump- tion is strongly against such use of the public funds. There is a well-marked distinction to be noted between the meaning 1 This question is further discussed in §§ 46-50. = §43. ' Loan Association v. Topeka, 20 Wall. 655, 661. * § 42. 6 §§ 39-41. 6 § 44. ' § 45. 8 §§ 46_50. B § 50. VOL. I. — 4 49 § 40 FUNDAMENTAL PRINCIPLES CONTEOLLING TAXING POWER. of " public purpose " in the law of eminent domain, and in the exercise of the taxing power.^ § 39. In the Loan Association v. Topeka^ the legislature of Kansas had given the city council power to encourage manu- factures and other enterprises tending to develop the city, and to issue bonds of the city for the purpose. The United States Supreme Court held that if the city had a fund out of which it could defray such expense without resort to taxation, the legislature could authorize such action ; but in general the right to make such contracts must be limited by the right to tax, and taxation in aid of purely private purposes such as this is beyond the legislative power, and an unauthorized invasion of private right. It must be conceded that there are such rights in every free government, beyond the control of the state. A government which holds the lives, liberties, and property of its subjects under the unlimited control of any depositary of power, monarch or majority, is a despotism. There are limitations on all the branches of government that grow out of the essential nature of all free governments, — implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments worthy the name. No court would hesitate to declare void a statute which enacted that A.'s wife should become B.'s, or that A.'s land should be transferred to D. " To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it on favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law, and is called taxation. This is not legislation, nor is it taxation." § 40. In Weismer v. Douglass^ Folger, J., said : " When we come to deal with the power of taxation in reference to the purposes for which it is to be exercised, it cannot but be con- ceded that there is an end to it somewhere. Every mind must be able to conceive of some legislative attempt to exer- cise this great and extensive power, which would fail to find M 51- * 20 WaU. 663, 664 (1874). » 64 N. Y. 98 (1876). So THE PURPOSE MUST BE A PUBLIC ONE. § 40 warrant either in our written Constitution or in any inherent governmental authority; and which the owner of property subjected to it would have a right to resist." "It must be far beyond the reach of real legislative authority to take the property of A., or of A. and some, many, or all others, and give it to B., when there is no legal, equitable, just, or moral obligation to render unto B. one farthing." But to tax A. to pay money to B. is one way of doing this very thing. " If A. may rightly resist this, as surely he may, how is he to make his resistance effective and peaceable save through the courts ? " And " How may the courts guard him, unless they have the power, upon his complaint, to examine into the legislative act, and to determine whether the extreme boundary of legislative power has been passed ? " The court then remarks that the legislature is the primary judge of the purposes for which money is to be raised, and that " it must be quite clear that it has erred, before the courts can arrest the consequences of its action." The court then defines a public purpose, saying that the state may raise money to pay a legal, equitable, or moral claim upon the public, or do that toward an individual that gratitude for public service or a feeling of charity might urge. " It may also be conceded that that is a public purpose, from the attainment of which will flow some benefit or convenience to the public, whether of the whole Commonwealth or of a circumscribed community. In this latter case, however, the benefit must be direct and immediate from the purpose, and not collateral, remote, or consequential. It must be a benefit or convenience which each citizen of the community affected may lay his own hand to in his own right, and take unto his own use at his own option, upon the same reasonable terms as any other citizen thereof. He may not be made to depend for it on the spontaneous action of others, or to receive it in uncertain degree or maimer or roundabout way, or hampered with discriminating distinctions and conditions." And the decision was that a town could not be authorized to take stock in a private manufacturing company and pay for it by taxation. The purpose was not public. The company was to be carried on, not for the profit of the public, but for private 51 § 42 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. profit and under private control, and the public advantage was entirely remote and consequential, being no different from that arising from any private enterprise. § 41. In Philadelphia Association v. Wood^ Lowrie, C. J., said that the legislature has the power of tax legislation, which includes the fixing of the measure of every man's duty in support of the public burden, but that the burden must be a public one — a tax is an imposition for the supply of the public treasury, not to aid individuals or private corpo- rations, however benevolent they may be; and that a law imposing on the agencies of foreign insurance companies in Philadelphia the duty to pay two per cent on their receipts to the Philadelphia Association for the Relief of Disabled Fire- men (a private corporation), is not taxation, but compulsory contribution to charity, and is void. The State might as well give orders as to the amount and objects of each individual's offerings to missions.^ " What one pays for taxes and assess- ments is taken for the public good, and can be justified on no other theory. Private property cannot be taken for private purposes, even under the legislative power of taxation." ^ § 42. The Presumption is strong in Favor of the Legislative Action. — It is for the legislature to determine whether an enterprise is of such public utility as to justify a resort to taxation or eminent domain, and if the public interest is really involved to any substantial extent, and if the project can in any fair sense be said to be promotive of the welfare or convenience of the community, the legislative adoption of such project is a final determination, from which there is no appeal.* The people of a State, assembled and acting by vote of the majority, would be under no restraints except those imposed by natural justice; and the State legislature, irre- spective of the provisions of the Constitution, is under the same restrictions, and no other. Taxing the people to give a bounty to those who go into the United States military service 1 39 Pa. St. 73 (1861). « See also Tyson ». School Directors, 51 Pa. St. 9 (1865). » Stuart V. Pilmer, 74 N. Y. 189 (1878). * Tide Water Co. v. Coster, 18 N. J. Eq. 521 (1866). 52 USAGE CONSIDERED IN DECIDING PUBLIC PURPOSES. § 43 is proper. " If there be the least possibility that making the gift will be promotive, in any degree, of the public welfare, it becomes a question of policy and not of natural justice ; and the determination of the legislature is conclusive."^ To justify judicial interference on the ground that the purpose is not public, " the absence of all possible public interest in the pur- poses for which the funds are raised must be clear and pal- pable, — so clear and palpable as to be perceptible by every mind at the first blush." ^ Since everything done in a state affects its interest, the strict application of these tests as state^ by the judges would render judicial interference im- possible. The true rule that unites the cases is that if a purpose is clearly not public in the sense that those taxed have not proportional interests in the purpose, the courts will interfere. § 43. Usage to be considered in deciding what Purposes are Public. — "There can be no lawful tax which is not laid for a public purpose." This results from law deeper than the Constitution itself. The object must be within the purpose for which governments are established. It is not always easy to draw, the line between a public and a private purpose. The courts can only interpose when a violation of the principle is clear, and the reason for interference cogent. " And in de- ciding whether in the given case the object for which the taxes ai'e assessed falls upon the one side or the other of the line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whethef State or municipal. Whatever lawfully pertains to this, and is sanctioned by time and acquiescence of the people, may well be held to belong to the public use, and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation." The court 1 See § 44. Booth v. Woodbury, 32 Conn. 128 (1864). See Speer v. School Directors, 50 Pa. St. 150 (1865). 2 Brodhead v. Milwaukee, 19 Wis. 686 (1665). 63 § 44 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. held that aiding private manufactures was not a public purpose.^ § 44. What are recognized a» Public Purposes. — To provide for secular education by building and maintaining schools, colleges, and universities ; ^ to preserve order ; to compensate public officers and others serving the public ; to give support and assistance to those unable to sustain themselves ; ^ to satisfy just and equitable (even though they may not be legal) claims for losses incurred by reason of serving the public, or arising out of transactions the benefits of which have been received by the public ; * to erect and repair public buildings ; to provide for preservation of the public health ; ^ to provide public parks ; ® to protect public property ; to pro- 1 Loan Association v. Topeka, 20 Wall. 665 (1874). 2 Merrick v. Amherst, 12 Allen, 500; Horton ». School Commissioners, 43 Ala. 598; Gushing v. Newburyport, 10 Met. 508; Bellmeyer v. School District, 44 Iowa, 564; Stuart v. Kalamazoo, 30 Mich. 69; Marks v. Trustees of Pardue University, 37 Ind. 155; Powell v. Board of Educa- tion, 97 lU. 375; Hensley Township v. People, 84 id. 544; People v. Allen, 42 N. Y. 404; People v. Board of Education, 13 Barb. 400; Otken V. Lamkin, 56 Miss. 758; Livingston Co. v. Darlington, 101 U. S. 407; State V. Board of Liquidation, 29 La. Ann. 77. The question is al- most always as to the extent, not the existence of the power; that is undenied. 8 Shepherd's Fold ». New York, 96 N. Y. 137. See Bay City v. State Treasurer, 23 Mich. 499. * Curtis V. Whipple, 24 Wis. 350-354; Blandig v. Burr, 13 Cal. 343; New Orleans v. Clark, 95 U. S. 644; Baker v. Windham, 13 Me. 74; Fuller I'. Groton, 11 Gray, 340; Friend v. Gilbert, 108 Mass. 408; Thomas u. Leland, 24 Wend. 65; Brewster v. Syracuse, 19 N. Y. 116; Wilkinson v. Cheatham, 43 Ga. 258; Briggs v. Whipple, 6 Vt. 95; Ly- coming V. Union, 15 Pa. St. 166; Board of Education v. McLandsborough, 36 Ohio St. 227; Beals ». Amador, 35 Cal. 624; Pike t;. Middleton, 12 N. H. 278. See Bristol v. Johnson, 34 Mich. 123. * Solomon v. Tarver, 52 Ga. 405; Anderson v. Eerns Draining Co., 14 Ind. 202; Draining Co. Case, 11 La. Ann. 338; Woodruff ». Fisher, 17 Barb. 224; Sessions v. Crunkilton, 20 Ohio, n. s. 349. The legislature may compel local improvements which, in its judgment, will promote the health of the people and advance the public, good, such as the drainage of swamps, and may cause the expense to be assessed on the locality bene- fited. Hagar v. Yolo County, 47 Cal. 233 (1874). " Matter of Central Park, 50 N. Y. 493; Matter of Prospect Park 54 WHAT ARE RECOGNIZED AS PUBLIC PURPOSES. § 44 vide for the enforcement of civil rights and punislunent of crime; to protect the public against the washing of rivers or the sea, against wild beasts, fire, or freshets ; to pay the expenses of government ; and to pay principal or interest on any debt lawfully incurred for a public purpose,^ — all these are purposes for which a State or municipality may tax. The following are purposes for which the State or a municipality, if expressly aiithorized by the legislature, may tax, viz. : To provide for celebrating important events, as the Declaration of Independence, etc. ; ^ to lay out, or aid in laying out and con- structing canals or railways ^ (the laying out of highways and streets does not require special legislative authorization) ; and to pay bounties for service in army or navy, performed or promised.* To provide a public supply of water or gas, or contract with private corporations for the corporate supply ,5 60 N. Y. 398; Attorney-General v. Burrell, 31 Mich. 25; Dunham v. People, 96 111. 331; People ». Salomon, 51 id. 37; State v. Leffingwell, 54 Mo. 458. ' Spring V. Collector of Olney, 78 111. 10; N'ougaes v. Douglass, 7 Cal. 65, 75. * Hodges V. Buffalo, 2 Denio, 110 ; Gerry v. Stoneham, 1 Allen, 319; Tash V. Adams, 10 Gush. 252; New London v. Brainard, 22 Conn. 552. » See §§ 46-51. Philadelphia v. Field, 58 Pa. St. 320 (bridge); Nor- wich ». Commissioners, 13 Pick. 60 ; Warden it. Commissioners, 38 Ohio St. 639; Bullock v. Currey, 2 Met. (Ky.) 171; Smith v. Farrelly, 52 Cal. 77; Ricketts u. Spraker, 77 Ind. 371 (gravel road); King v. Aroostook County, 63 Me. 567, — compare Martin v. Aston, 60 Cal. 63; Snell v. Leonard, 55 Iowa, 553 (railroad); Header v. Lowry, 45 id. 684 (rail- road) ; Shoutz V. Evans, 40 id. 139 (railroad) ; Commissioners v. Lucas, 93 D. S. 108 (railroad); Lamb v. Anderson, 54 Iowa, 190 (railroad). * See § 42. Speer v. School Directors, 50 Pa. St. 159; Grim ». School District, 57 id. 433; Shackford v. Newington, 46 N. H. 415; Hart o. Holden, 55 Me. 572; Barbour v. Camden, 51 id. 608; Butler ». Putney, 43 Vt. 481; Bartholomew v. Harwinton, 33 Conn. 408; Fowler v. Danvers, 8 Allen, 80. See People w. Supervisors, 43 N. Y. 130; Alley v. Edge- combe, 53 Me. 446; Crowell v. Hopkinton, 45 N. H. 9; Stetson v. Kemp- ton, 13 Mass. 272; Wahlschlager v. Liberty, 23 Wis. 362. 5 Van Sicklen v. Burlington, 27 Vt. 70; Mayor of New York v. Bailey, 2 Denio, 433; Nelson v. La Porte, 33 Ind. 259; Wells v. Atlanta, 43 Ga. 67; Western Saving Fund Society w. Philadelphia, 31 Pa. St. 175, 185; West V. Bancroft, 32 Vt. 367. 55 § 45 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. is peculiarly a municipal public purpose. It is proper for the legislature to impose on a city the payment of a just claim against it, for which an equivalent has been received, but which by reason of some irregularity cannot be enforced at law.^ The legislature can convert a moral claim into a legal one.^ A State legislature may authorize a town to tax citizens to give gratuities to those entering the United States military service.^ § 45. What Purposes are not Public. — The legislature can- not in general * give a town authority to vote its bonds in aid of a private manufacture or business enterprise." " If it be said that a benefit results to the town by establishing manu- factures, the same may be said of any other business or pursuit which employs capital or labor. The merchant, the mechanic, the innkeeper, the banker, the builder, the steamboat owner, are equally promoters of the public good, and equally de- serving the aid of the citizens by forced contributions. No line can be drawn in favor of the manufacturer which would not open the coffers of the public treasury to the importuni- ties of two-thirds the business men of the city or town." ® Aid of religious instruction is not a public purpose. Govern- ment provision for it is a persecution of those whose views . are not favored. Public money cannot be appropriated to any school owned and controlled by a private association or corporation.'^ A town cannot vote money to refund a sum voluntarily paid by A. and B. without expectation of repay- ment. There being no obligation to repay, the reimbursement is a gift ; and the town cannot vote a gift to A. and B., or to » New Orleans v. Clark, 95 U. S. 644 (1877). « Lycoming v. Union, 15 Pa. St. 166 (1850). » Comer v. Folsoni, 13 Minn. 221- (1868). * See § 38, note. 8 Commercial National Bank v. lola, 2 Dill. 353. See English v. People, 96 HI. 566; Weismer v. Douglass, 64 N.-T. 91; Central Branch U. P. R. Co. V. Smith, 23 Kan. 745; Parkersburg v. Brown, 106 U. S. 487; MuConnell v. Hamm, 16 Kan. 228. > « Loan Association v. Topeka, 20 Wall. 664; Allen o. Jay, 60 Me. 124. ' Curtis V. Whipple, 24 Wis. 354. See Jenkins «. Andover, 103 Ma.=.s. 94; People v. McAdams, 82 111. 356. 56 IS AIDING OP RAILWAYS A PUBLIC PURPOSE ? § 46 any individual. If it may give to them, it may give to C. ; if it can give little, it can give much ; and the result is, it can take all of D.'s property and transfer it to A. and B. Taxa- tion must be for public purposes, and to meet public obligar tions.^ In Allen v. Inhabitants of Jay,^ the court held that a town could not be taxed for a loan to H. and L., in considera- tion of their building a saw-mill, grist-mill, etc., in the town. Taxation to aid a school established and governed by private persons,* or to aid people to rebuild their homes desolated by fire,* is improper. An act authorizing a town to issue bonds to aid in building a dam across a river to improve the water, to secure water-power for the to\m fire department, was held unconstitutional, and the mingling of public purposes with private ones could not save it.^ § 46. Is the Aiding of a Private Railway Corporation a Public Purpose f^ — The ground upon which the great battle, in this corner of the law, has been fought and is still raging, is the railroad. It is not questioned that the state could apply public money to building a railway, to be owned and con- trolled by the state ; that would be a public institution of benefit to the public, and would constitute a public purpose, as much as the laying out of a common highway. But when the purpose is merely to aid a railroad, to be owned and con- trolled by a private corporation, and not by the state, a very different question is presented. On the one hand, it may be argued that the benefits to be derived to the public are purely incidental, and cannot therefore be the basis of just taxation in aid of such corporations, on the principles already set forth. On the other hand, it may be argued that the corpora- tions controlling canals, highways, railroads, etc., are quasi public corporations, and that the public is entitled to equal 1 Perkins v. Milford, 59 Me. 318 (1871). 2 60 Me. 124 (1872). » Jenkins v. Andover, 103 Mass. 94 (1869) ; Curtis v. Whipple, 24 Wis. 350 (1869). * Lowell V. Boston, 111 Mass. 454 (1873). 6 Coates V. Campbell, 35 N. W. 366 (Minn. 1887). « See § 44. 5T § 46 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. and impartial accommodation by them; that the state, by taking stock in the corporation, gains a proportionate control of it (this argument would not apply to donations) ; and if it is proper for the state to have the whole interest in a rail- way, with the whole control, it is proper to have a part inter- est with a part control ; that the idea that the benefits to the public are incidental, and therefore aside from the sphere of taxation, is illusive, for the benefits which would authorize the state to construct highways are the improved facilities for travel given to the public, and not the profits on the money invested, and these same benefits are the very ones secured by the public when the means of communication are opened up by private corporations ; and so far as the profits on the money invested is concerned, the state reaps the same profit as any other stockholder; that if the state deems the con- struction of a railway of great importance to the whole com- munity, and yet it is of so costly a nature and the immediate returns of so uncertain a character that private capital does not flow readily into such investments, it is very proper for the state to hold out inducements for such investment, and to reward it with gifts of land or money the same as with any other public service ; but that after the success of such invest- ments is so far established that private capital flows into them without stimulus, it is improper to waste the public revenues in remunerating service which will clearly be repaid fully in the ordinary course of business (this I think explains the change of front of the courts on this subject as the years have flown. At first State and municipal aid was highly favored, but a ten- dency soon became noticeable the other way, and now in some cases the right of the legislature is entirely denied). The mere fact that some portion of the community receives a benefit from the application of public money proportionally greater than that received by others, is no objection, for all government work must be done through agencies, and these must be properly paid. Those who receive salaries or con- tracts under the government, and those who own property which rises in value by reason of public improvements, all derive a benefit from the expenditure of public moneys, in ex- 68 IS AIDING OP RAILWAYS A PUBLIC PURPOSE ? § 47 cess of their proportion ; but these benefits are not the object of the public action of the advantages which are aimed at, each one taxed should receive in proportion to his tax. In the case of a railroad the aim of the state is not profit by the investment of money, which is really the incidental matter, but improvement of communication, and consequent develop- ment of commerce and of the resources of the country ; these are really the primary matters, and whatever way it seems to the legislature that these objects can be best accomplished with least trouble and expense to the public would seem a proper way, and if incidentally some individuals gain by the transaction it is no more than necessarily happens in every public movement. Instance the war contracts. It is not lawful, however, for the government to give public money to individuals for no equivalent,, or to invest public money for the purpose of forwarding private advantage ; and the ques- tion in each case would seem to be whether the real object is the forwarding of public interest ; and there must always be a suspicion attaching to the investment of public moneys in en- terprises controlled for private profit, and a very strong case should be made out in vindication of such expenditure. The state should retain sufficient power over such corporations, to prevent exorbitant private gain. The line of state control of enterprises to which public money is applied would seem properly not a dead line beyond which the state may not go, but the axis round which turns the burden of proof. If the enterprise is to be controlled by the state, the presumption is strong that the purpose is public, and a clear case must be made to the contrary ; if the enterprise is to be under private control, the presumption is that the purpose is private, and a case must be made to the contrary. § 47. The Aiding of Railways held to he a Public Pur- pose. — In Davidson v. County Commissioners ^ it was held that the building of a railroad was a public purpose for which towns, counties, or States may be taxed, though the control of it was to be in the hands of the railroad company, a private 1 18 Minn. 486 (1872). 59 § 48 FUNDAMENTAL PRINCIPLES CONTROLUNG TAXING POWER. corporation.^ In Walker v. Cincinnati ^ the court refused to declare taxation for railroads void, saying that courts cannot " nullify an act of legislation on the vague ground that they think it opposed to a general ' latent spirit ' supposed to per- vade or underlie the Constitution, but which neither its terms nor its implications clearly disclose in any of its parts. To do so would be to arrogate the power of making the Constitution what the court may think it ought to be, instead of simply declaring what it is. The exercise of such a power would make the court sovereign over both Constitution and people, and convert the government into a judicial despotism." This is really fighting the air ; for surely if a principle cannot be negatived without destroying the whole Constitution and the rights everywhere evidently sought to be preserved by it, then that principle is an implication from the very existence of the Constitution, and it makes no difference whether the principle is called the " latent spirit " underlying the Constitution, or an implication from the Constitution ; it is both. § 48. Railway Aid held improper. — In Hanson v. Vernon * the court said that the legislature could not pass an act which would make it lawful for a municipality in its corporate capa- city to subscribe for stock in a railroad company. The legis- lature can interfere with private property only in these ways : " 1. It may authorize it to be forfeited for crime, or sold for the owner's debts judicially established, or in pursuance of judicial proceedings. 2. It may take it for public use, under the power of eminent domain. For any private use the legis- lature cannot touch the property of the citizen, even if it does make compensation. 3. It may under peculiar circumstances condemn it under the police power, when the property, or its use or situation, is such as to endanger the public health, welfare, or safety. Salus populi suprema lex. 4. It may be 1 See also to the same effect, Sharpless ». Philadelphia, 9 Harr. 169 (1853). The sustaining of vested rights made the decision in this case a very just one, large investments having been made. Rogers v. Burling- ton, 3 Wall. 654; Stewart v. Supervisors, 30 Iowa, 9; Redfield on KmI- ways, § 230. a 21 Ohio St. 41 (1871). » 27 Iowa, 30 (1869); State v. Wapello Co., 13 Iowa, 388 (1862). 60 AIDING OP BAILWATS AS A PUBLIC PURPOSE. § 49 taken by virtue of the iamng fowerP The court then said that the statute under which property was taken for railroad stock subscriptions must be sustained, if at all, under the power to tax, and that by the very nature of this power the purpose must be public; when the money does not go into the public treasury, or is not destined for the use of the government or some of the governmental divisions of the state, it is not a tax. A tax for a private purpose is a sole- cism. An exaction to aid a railroad controlled by private parties is no more for a public purpose than if it were in aid of any other private enterprise, — a mill, a school, a store, or a farm. In People v. Salem ^ there is a very full discussion of the requirement that the purpose must be a public one, in connection with the railroad question. When the funds raised or the property bought with the tax is to be owned by the state, there is no doubt of the public character of the tax ; but when as in this case the railway, to build which some towns were taxed, was to be private property, to be run ex- clusively for the corporation benefit, and the citizens of these towns would have to pay for all they got from the railway company, the purpose cannot be deemed a public one. The investment of their capital in such manner would be advan- tageous to the growth of the towns, but so might other in- vestments which the citizens might make. The real substance of such a tax is to take property from some citizens, not to be expended for property which will be used for the common interest of the taxpayers, but to be expended for property which will be owned by individuals, and controlled by them for their own benefit. § 49. Federal Courts not hound hy State decisions on this svhjeet of Railway Aid, when the Validity of a Contract is in- volved. — Though the State courts declare void a law author- izing a city to take railroad stock, the United States courts will not be bound thereby, when the matter in question re- gards bonds issued in negotiable form by a municipality of said State, under the authority of said law, and now in the hands of a citizen of another State, bona fide and for value. 1 20 Mich. 470 (1870). 61 § 50 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. The United States Supreme Court ^ held that although the rail- road corporation was private, " its work was public, as much so as if it were to be constructed by the state." It is only on the ground that the construction of railroads is a public pur- pose, that the power of eminent domain can be exercised on their behalf. Twenty-one States have passed similar laws, and in all but two their validity has been sustained. . The decisions of this court in Railroad Co. v. Otoe ^ and Olcott v. Supervisors ^ are conclusive upon us in this case. Miller and Davis, JJ., dissented, and the Chief Justice took no part in the decision. In a later case the same court came to a precisely opposite conclusion, though the premises in all the cases are substantially the same. § 50. On Principle can the People be taxed in Aid of a Pri- vate Corporation? — It is not just that money should be taken from one citizen and given to another without an equivalent rendered to the first. Whether the transfer be effected by oue man or a hundred thousand, it is robbery. Nor is it just that one of a number benefited by an undertaking should receive the advantage without bearing his proportion of the burden. In respect to matters within the sphere of private activity, this is roughly secured by the civil law and the operation of pri- vate contract, — secured as nearly as the practicable will allow. But in respect to matters within the sphere of government, this equivalence of burden and benefit is secured by taxation. It is clear that when any given advantage to the community will be secured by the natural flow of labor and capital into alluring channels, as well as by governmental action, the matter should be left to private enterprise ; the presumption is always in favor of liberty, and no further constraint than is clearly necessary for the public good is to be allowed. 1 Pine Grove «. Talcott, 19 Wall. 676 (1873). 2 16 Wall. 667 (1872). ' Id. 678 (1872). In this case the bonds were issued at a time when the highest court of the State had decided that building a railroad was a public purpose for which the power of taxation could be exercised, and it was very just that a change of front by the State court subsequent to the issue of the bonds should not invalidate them in the hands of the holders. 62 AIDING RAILWAYS AS A PUBLIC PURPOSE. § 50 But if the matter is one that can be much more adranta- geously undertaken by the community than by any private person or persons, as in the case of highways, police service, postal service, etc., or any case in which it is better to have the enterprise under one control in order to the most econom- ical and efficient management, and yet the monopoly would be dangerous in private hands and difficult to regulate, or any matter which, though of great public importance, is of such character that private capital does not come to the front because of the uncertainty of the result, or the immediate re- turn, any such case presents a proper sphere of government action', — the control of society over each person for the good of the whole. When the mass of a community come to the conclusion that a certain thing should be done for the benefit of the community, and that it can be better done by social action than by private means, they are not bound to delay action till every one agrees to the expenditure ; such a doc- trine would cripple the public arm and kill the chief benefits of social action ; wherefore the rule of the majority. Further, when such an undertaking is entered upon as necessarily benefits the dissenters, it is just that they should be made to render an equivalent. If the matter can be so arranged that the benefit conferred on each individual can be measured even roughly, the expenses should be met by contributions proportional to the benefits, and rendered as the benefits are received ; for example, the postal service, and street assess- ments. But where the undertaking' necessarily benefits each member of the community without reference to any accept- ance of it or use of the facilities afforded, as in the case of police and all government protection, public parks, and pub- lic education, the whole community may fitly be taxed in support of the institution, though in the case of education we think the special benefit received by those who send chil- dren to the schools should be met by a special contribution from them, just as with street improvements part of the ex- pense is borne by the community at large and part by the owners of the land specially benefited. These, then, are the thoughts underlying this matter of taxation. Some things 63 § 50 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. can be better done by public than hj private effort, and each person benefited should contribute proportionally. Hence results the law that taxation must be for a public purpose pertaining to the district taxed. That a peculiar advantage should result from a public undertaking to some particular individuals, in the nature of a return for labor or capital, such as is incidental to all pursuits, does not render the purpose private ; all government action must be through agencies, and these must be requited. If the public money is expended directly under . public <5ontrol and supervision for such a purpose as is above described, in which the taxpayers are interested as nearly as is practicable in the ratio of their payments, we have proper taxation. Nor does it matter if, instead of direct expenditure under state control, the govern- ment spends the money to buy a contract right to some public benefit ; for example, a contract with a water company for the supply of the town, or a contract for a public building. So too if the establishment of a certain manufacture in its midst will be of great advantage to a town, and the natural induce- ments to settle elsewhere endanger its interests, we cannot see why a town may not secure this benefit to itself, nor why those members who do not consent should escape their fair share of contribution for a benefit, a proportion of which must inevitably come to them, and cannot be renounced by them so long as they have interests in the town ; and they are tax- able there no longer than that. Again, if in the early days the state became convinced that a railroad would be a good thing for the community, and private capital felt the enterprise too dangerous and the waiting for returns too long, and would not volunteer from the ranks of other employments, it would be very proper for the community, in order to secure the ad- vantages of free, full, and rapid communication, which must inevitably benefit the whole people, to tax itself to offer the inducements to private capital necessary to secure the advan- tages sought. But if in either case governmental expenditure is unnecessary, the same benefit or an equal one being forthcoming through private endeavor, then governmental action is wrong, as it unnecessarily interferes with liberty, 64 DISTINCTION BETWEEN EMINENT DOMAIN AND TAXATION. § 51 and adds the expense of governmental machinery to the act- ual cost of the undertaking. The presumption would seem to be stroiig against the public character of any expenditure of public money in aid of a corporation controlled by private parties for private profit ; unless circumstances are shown at least indicating that the public that was taxed has gained something of value which it would not otherwise have gained, the taxation should not be sustained. § 51. Distinction between Eminent Domain and Taxation as to what constitutes a Public Purpose. — In the exercise of eminent domain the words " public purpose " have a broader applica- tion than in the case of the taxing power. For example, land may be taken to create a reservoir from which power may be had for private manufactures. Within the meaning of the law of eminent domain, land is taken for public use whenever it is taken for the general public advantage.^ The same thoughts however underlie both these departments of the law. The public good is the highest law ; but the ultimate object is the happiness of individuals, and private liberties are not to be infringed upon where the public good does not require it. Now, the establishment of manufactures is a public benefit, and the will of a land-owner must not be allowed to stand in the way. Eminent domain maj' be exercised, for otherwise the public good might be defeated. But, except under very pecu- liar circumstances, the natural desire for gain will induce pri- vate capital to do all the rest (where it is proper it should be done at all), — erect the buildings, buy the machinery, and put the work in operation, and the donation of public money in aid of the manufacture would be without consideration. The inci- 1 Hazen v. Essex Co., 13 Cush. 477; Headei. Amoskeag Manufacturing Co., 113 U. S. 9; Boston and Roxbury Mill Corporation v. Newman, 12 Pick. 467; Harding v. Goodlett, 3 Yerg. 41; Ash v. Cummings, 50 N. H. 591 ; Great Falls Manufacturing Co. u. Fernald, 47 id. 458; Jordan v. Woodward, 40 Me. 317; Olmstead ». Camp, 33 Conn. 532; Thein v. Voegt- lander, 3 Wis. 465; Pratt v. Brown, Id. 603; Fisher v. Horicon Co., 10 Wis. 351 ; Curtis ,w. Whipple, 24 id. 850 ; Miller v. Troost, 14 Minn. 365; Harding v. Funk, 8 Kan. 315; Smith v. Connelly, 1 T. B. Monr. 58; 6am- mel V. Potter, 6 Iowa, 548. Comp. Tyler v. Beacher, 44 Vt. 648; Ryerson V. Brown, 35 Mich. 333; Loughbridge v. Harris, 42 Ga. 500. VOL. I. — 5 65 § 52 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. dental benefits resulting to the public from the construction of railways are a sufficient foundation for the exercise of the power of eminent domain in their favor, since" otherwise their construction might be impossible, yet such purposes are not public in the sense of tlie law of taxation ; ^ for since a railroad is the property of individuals and run for their profit, the taxing of citizens in general to aid the road violates the rule that each one taxed shall have an interest in the purpose to which the tax is applied, bearing the same proportion to the tax he pays as the interest of any other citizen (for ex- ample, a stockholder) bears to his tax. This distinction is recognized in People v. Salem ; ^ the court saying, " It is true that a railroad in the hands of a private corporation is often spoken of as a public highway, and that it has been recognized as so far a public object as to justify the appropriation of private property for its construction ; but this fact does not conclusively determine the right to employ taxation in aid of the road in the like case. Reasoning by analogy from one of the sovereign powers of government to another is exceedingly liable to deceive and mislead. An object may be public in one sense and for one purpose, when in a general sense and for other purposes it would be idle and misleading to apply the term. All governmental powers exist for pvhlic purposes, but they are not necessarily to he exercised under the same con- ditions of public interest." § 52. The District taxed. — The consideration for the tax must move to those and all those and none others than those who are taxed. The district taxed must not be different from the district interested. One must be neither greater,^ nor smaller,* nor distinct^ from the other. If a portion of the district to which a certain interest pertains has a special in- terest additional to the general interest it has in common with the whole district, this special hiterest is a good founda- tion for a special taxing of the said smaller district.^ The expenditure of public money may be outside of the district 1 Whiting V. Sheboygan & Fond du Lac R. Co., 25 Wis. 167 (1870). 2 20 Mich. 477, 478 (1870). » § 54. M 53. 5 § 53. • § 55. POBPOSE MUST PERTAIN TO DISTRICT TAXED. § 53 taxed, if it is to secure a benefit experienced within the dis- trict. If the benefit bought is secured to those who pay, the law is satisfied.^ The presumptioij, here as elsewhere, is in favor of the legislative determination as to the district to bear any given burden, and only when there is a manifest and sub- stantial departure from justice will the courts interfere.^ Slight overlappings and individual hardships are unavoidable, and will not vitiate the law.* § 53. Tlie Purpose must pertain to the District taxed. — If it is clear that the legislature has imposed a tax on a class, or on ^ district, without regard to the proportion of burden to bene- • fit, the courts will not sustain it. It cannot select classes or districts for manifestly exceptional burdens.* An act of the legislature levying contributions for a purpose, public or pri- vate, in which the people from whom they are exacted have no interest, would not be a law, but a sentence commanding the payment of money by one portion or class of people to an- other.* The legislature cannot authorize the expenditure of a school tax for purposes outside the district.^ Town taxes should be applied to town purposes, and not to corporate pur- poses of another town. But where taxes are levied for park purposes and part of the park is in another town, in the absence of evidence to the contrary, it will be presumed that the park commissioners do their duty, and apply the money raised in each town upon the portion of the park in that town.^ The legislature cannot authorize a tax on particular property in a designated locality for a general purpose to which the whole community ought to contribute equally. Such a tax would be taking private property for public use without just compensation. The contrary would land us in the absurdity, that under the name of taxation the state could M 56. 2 § 67 8 §§ 30, 31, 42. * Hammett ». Philadelphia, 65 Pa. St. 146, .151; Dorgan v. Boston, 12 Allen, 223, 237. « Shai-pless r. Philadelphia, 21 Pa. St. 147, 174 ; Weber e. Eeinhard, 73 id. 370; Ryerson v. Utley, 16 Mich. 269; Lexington v. McQuillan's Heirs, 9 Dana, 513. ' Bromley v. Reynolds, 2 Utah, 525. ' Halsey v. People, 84 111. 92 (1876). 67 § 54 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. lay the whole burden of public expense on one town or one man, if one could be found able to bear it.^ In the Hammett case, Sharswood, J., said, ," There is, indeed, no clause in the Constitution of Pennsylvania which restricts the power of tax- ation in the legislature, as is to be found in many of our sister States. Yet it must be confessed that there are necessary limits to it in the very nature of the subject. It is very clear that the taxing power cannot be used in violation of provi- sions in the Bill of Rights, everything in which is ' excepted out of the general powers of government, and shall forever • remain inviolate.' There is no case to be found in this State, nor, as I believe after a very thorough search, in any other, — with limitations in the Constitution or without them, — in which it has been held that the legislature, by virtue merely of its general powers, can levy, or authorize a municipality to levy, a local tax for general purposes. Such a measure would not be taxation, but confiscation." Taxation must be on benefits conferred, and not beyond the extent of those benefits ; and assessments on adjacent owners for repaving a public street were held void, not however without dissent. § 54. A District must not bear the whole Burden of Taxation for a Purpose that is wider than the District. — If those outside the district taxed are interested they should bear a portion of the expense. The legislature cannot authorize a local board or corporation to levy taxes within its district for general pur- poses.2 A tax on one community for the common benefit of that and a larger community not taxed is void.^ Neither is it any more proper to levy a tax on a wide district for the benefit of a portion of it. Taxes raised by a city partly in each of two counties cannot be voted towards the court-house of one of the counties.* The taxes raised by a public body must be for purposes under the care of that body. A county 1 Hammett v. Philadelphia, 65 Pa. St. 151 (1870); Weber v. Kein- hard, 73 id. 373 (1873); Washington Avenue, 19 P. F. Smith, 352 (1871). 8 People V. Parks, 58 Cal. 624; Bromley v. Reynolds, 2 Utah, 525. = Ex parte Marshall, 64 Ala. 266. * Bergen v. Clarkson, 6 N. J. 352. ' 68 PEESDMPTION IN FAVOR OP LEGISLATURE AS TO TAXES. § 56 cannot raise taxes to be handed over to towns and by them expended for town purposes.^ § 55. Where a Portion of a District to which a given Pur- pose appertains receives some peculiar Benefit, it may properly he peculiarly taxed. — For example, a college town,^ or a county town,^ or a town especially benefited by a public improvement such as a canal,* may properly bear a special tax besides the general tax common to the State oi^ county. The legislature may authorize county commissioners to levy a tax for the building of a bridge in another county, in which the people taxed have a special interest.* The cost of a public improve- ment may be assessed upon property specially benefited to the extent of such benefit, but the cost beyond this limit must be levied on the public at large ; and a law which does not make provision for limiting the maximum of such special as- sessments to the benefit received is void.® § 56. The Expenditure may he beyond the Taxed District if the Interest is within, it. — An act authorizing the city of Richmond to subscribe for stock in a company intended to- effect' transportation from the navigable waters of the Ohio to Richmond, was held valid. It was argued that the cor- porate powers must be confined within corporate limits ; but the court said : " The interest of the corporation is the true test. ... A corporation may bring water into the city from a point beyond it ; and it may erect its works for that purpose without its own jurisdiction. . . . Though the source be ten miles off, the act for introducing the water is fairly a corporate act, because the want is experienced in the heart and through all the wards of the corporation, and the benefit is experienced within the limits, though the operations by which it is intro- * Attorney-General v. Supervisors, 34 Mich. 46. " Merrick v. Amlierst, 12 Allen, 504; Burr v. Carbondale, 76 111. 455; Livingston Co. v. Darlington, 101 U. S. 407; Marks v. Pardue University, 37 Tnd. 155. » Kirby v. Shaw, 19 Pa. St. 261. * Thomas v. Leland, 24 Wend. 65. * Commissioners of Talbot County v. Commissioners of Queen Anne's County, 50 Md. 247 (1878). e Tide- Water Co. v. Coster, 18 IT. J. Eq. 527 (1866). 69 I 57 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. duced are carried on without." ^ So the removal of a bar in the river. § 57. Presumption in favor of the Legislature as to the Dis- trict taxed. — When the nature of the case does not make it clear that the selection by the legislature of the district to bear the burden of any given tax is in violation of the prin- ciple of proportioning burden to benefit, the courts will not interfere. The legislature, unless limited by the Constitution, may establish taxing districts, in its discretion.^ An assess- ment for a purpose partly in one town and partly in another is not bad, unless it is affirmatively shown that money raised in one town is to be expended in the other.^ The legislature may determine the district upon which a tax is to be laid.* A town charter, giving the right to tax property outside the cor- porate limits, but within two hundred yards ^ or half a mile ^ of the line, was not unconstitutional. The cost of a bridge built over a navigable river by order of the legislature, may be imposed on the cities benefited,' and the expense of street •improvements may be assessed on abutting property .^ Under a power " to tax any particular part or district of the city for paving streets, etc., which maj appear for the benefit of such particular part or district," a tax will be presumed to conform to the power, unless the contrary is shown ; but if it appears from the ordinance that the paving was for the benefit of the city in general, and not for the benefit of the particular dis- trict taxed, it will be void.® 1 Goddin v. Crump, 8 Leigh, 155 (1837). 2 People V. Brooklyn, 4 N. Y. 419, 425; Scovill v. Cleveland, 1 Ohio St. 126, 138; Hill !>. Higdon, 5 id. 245; Howell v. Buffalo, 37 N. Y. 273; Gordon v. Comes, 47 id. 611; Alcorn v. Earner, 38 Miss. 761; Langhorne v. Robinson, 20 Gratt. 661; Challis v. Parker, 11 Kan. 394; Allen V. Drew, 44 Vt. 187; Philadelphia v. Field, 58 Pa. St. 320. » Wright II. People, 87 HI. 582; Halsey v. People, 84 id. 89. * Hingbam and Quincy Bridge and Turnpike Corporation ». Norfolk County, 6 Allen, 353 (1863). 6 Conwell V. Connersville, 8 Ind. 362 (1856). ^ Langhorne v. Robinson, 20 Gratt. 661 (1871). ' Philadelphia v. Field, 58 Pa. St. 325 (1868). 8 Scovill V. Cleveland, 1 Ohio, 127 (1853). ' Baltimore v. Hughes' Admr. D. B. N., 1 Gill & J. 481 (IS^S). 70 BESTRICTIONS ON TAXING POWER. § 60 § 58. Constitntional Restrictions. — We have under this head to consider the limitations imposed by United States Constitution upon Federal^ and upon State ^ taxation, and those imposed upon the legislative power of each State by its own Constitution;^ especially noticing the control of the judiciary over the legislative department,* the constraction of the phrases, the " Law of the Land " and " Due Process of Law," ^ and the constitutional provisions in favor of equality and uniformity.® § 59. Restrictions on Federal Taxation. — Under the Fed- eral Constitution all revenue bills must originate in the popu- lar branch of Congress ; direct taxes must be apportioned among the States, according to their respective numbers, to be determined by adding to tiie whole number of free persons (including those bound to service for a term of years and excluding Lidians not taxed) three-fifths of all other persons ; taxes can be laid only for the purpose of paying the debts and providing for the common defence and general welfare of the United States ; no direct tax can be levied unless in propor- tion to the enumeration of persons as contained in the census directed to be taken by the Constitution. Congress cannot tax the salary of a State ofificer,^ Bradley, J., dissenting, on the ground that the United States government has the same power of taxing the salaries of State officers as those of its own servants. Congress may, however, tax State banks. The rights of a State to pass laws, and give effect to them through executive action, to administer justice through the courts, and to employ all necessary fancies of State government, are not proper subjects of the taxing power of Congress ; but franchises granted by the State are private property, and are not exempt from Federal burdens.^ § 60. Restrictions imposed npon the Taxing Power of the States by the Federal Constitution.^ — The Fourteenth Amend- M 59. * §§ 60-66. » §§ 67-117. * §§ 68-74. » §§ 75-102. « §§ 103-109. ' CoUector r. Day, 11 WaU. 113 (1870). • Veazie Bank v. Fenno, 8 WalL 547 (1869). ' See §§ 61-63. 71 § 60 FUNDAMENTAL PRINCIPLES CONTROLUNG TAXING POWER. ment^ and the provision against the impairment of contracts^ both strongly affect State taxation, but congressional legis- lation cannot directly abridge the power of the States.* The public domain of the United States cannot be taxed by the States in which they lie ; * but after sale, payment of price, and issue of certificate, it may be taxed, though patent has not been issued.^ But occupation by a pre-emptioner without payment is not sufficient to subject the land to tax.® In Cali- fornia, it is held that improvements, though made by one occupying without license, may be taxed.'' But Parker V. Winsor* holds that "improvements" are a part of the real estate, and that the statute providing that certain improvements shall be " taxed as personal property " means simply that they shall be taxed in the same manner as personal property is taxed, but does not mean that the im- provements shall be personal property, it being beyond the power of the legislature to make such a change ; and that when the land is exempt from taxation the improvements thereon are not taxable.^ And the " claim to and possession of " land of the United States has been held to be taxable prop- erty.^" Thus the possessory claim of miners is held to be taxable.'^ A State cannot tax lands purchased by the gov- ernment of the Union, with the assent of the State, for the erection of forts, magazines, arsenals, dockyards, mints, post-offices, court and custom houses, and other needful buildings which may be necessary in carrying into effect the J § 64. * § 65. » § 66. * Hall V. Bowling, 18 Cal. 619; McGoon v. Scales, 9 Wall. (U. S.) 23. * People B. Shearer, 30 Cal. 645; Witherspoon v. Duncan, 21 Ark. 240; s. c. 4 Wall. (U. S.) 210; Carroll v. SafEord, 3 How. (U. S.) 441; Astrom , V. Hammond, 3 McLean, C. C. (U. S.) 107. * People V. Shearer, «6i sup. See Pitts v. Booth, 15 Texas, 453. ' People u. Shearer, ubi sup. » 5 Kan. 362, 375. » But see 1 Wash. Ter. 180, 193; n. 8. 159, 170. »» People V. Cohen, 31 Cal. 210 ; Reily v. Lancaster, 39 id. 354; People V. Frisbie, 31 id. 146. " Hale, &e. M. Co. v. Storey County, 1 Nev. 104 ; State v. Moore, 12 Cal. 56 ; People v. Shearer, supra ; People b. Black Diamond Coal M. Co., 37 Cal. 54. 72 RESTRICTIONS ON TAXATION. § 62 powers intrusted to the Federal government.^ This would be taxing the means employed by the general government in the execution of its acknowledged powers. Besides, " exclusive legislation " is granted to Congress by the Constitution over all such places as may be ceded by the States to the general government, or may be purchased by the latter, with the con- sent of the States.^ § 61. The power of one government to tax another is the power to destroy that other ; and therefore no State can have a right to tax any constitutional means employed by Congress in th^ execution of its constitutional powers, nor in any way to retard, impede, burden, or control the operations of the national government, within its sphere. This does not con- flict with anything but a tax directed primarily against the national measures, as a tax upon the operations of national banks; it does not prevent the States from taxing the real property of national banks in common with other real estate, nor from taxing the proprietary interests of its citizens in such banks, in common with other similar interests.^ In re- gard to such taxation the States have concurrent powers with the Federal government, unless excluded by express action of Congress.* The salaries of United ' States officers are not subject to State taxation.^ § 62. Stocks, bonds, or other securities of the United States are not subject to State taxation. Loans of the Federal gov- ernment cannot be taxed by a State, for such tax would ope- rate as a restriction upon and a power of destruction of the constitutional right of the United States to borrow money.® So when the capital of a bank is invested in United States bonds, a tax _" on a valuation equal to the amount of their ^ 1 Opinions of Attorney-General, 620; 5 id. 316; Opinion of Justices, 1 Met. 580. 2 McCuUoch V. Maryland, 4 Wheat. (U. S.) 316; Osbum o. Bank of U. S., 9 id. 738. » McCuUoch V. Maryland, 4 Wheat. 316, 436 (1819). * Van Allen v. The Assessors, 3 Wall. 585 (1865). » Dobbins v. Commissioners, 16 Pet. 435 (1842). 8 Weston V. City Council, 2 Pet. 449 (1829) ; Bank of Commerce v. New York City, 2 Black, 620 (1862). 73 § 63 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. capital stock paid in," is void.^ But the shares of the stock- holders of a national bank are taxable, without reference to the mode of investment. On the same principle United States currency notes are exempt.^ In Broadway Bank v. Mayor of New York " it was held that certificates of indebted- ness issued by the United States were protected. The court of appeals in New York held that a certificate issued in ac- knowledgment of a debt due for goods furnished the govern- ment was not within the protection afforded to the power of borrowing money, for it was not borrowing. The United States Supreme Court, however, decided that in substance there is no difference between the case of borrowing from A. and giving him a security, and paying the money to B. for his goods, and the case of giving the security directly to B. for the goods. § 63. A State cannot lay a tax. on transportation companies for every passenger carried out of the State. Such a right would enable the States to embarrass or destroy the power of the Federal government to transport troops, to hinder the movements of its ofificers ; and is therefore inconsistent with the objects for which the Union was created.* A State may tax incomes derived from United States banks, as dividends in common with other incomes.^ Land sold for direct taxes under the act of Congress, June 7, 1862, c. 98, § 7, and struck off to the United States, and afterward conveyed by the United States or redeemed by the owner, cannot be taxed by the State while so owned by the United States.® United States custom-house pi-operty cannot be assessed for street better- ments.^ Where the United States by agreement with A. erects buildings on A.'s land, to be owned and used by the 1 Bank Tax Case, 2 Wall. 200 (1864) ; Bank of Louisville v. Kentucky, 9 Wall. 353 (1869). 2 Bank of New York v. Supervisors, 7 Wall. 26 (1868). » 7 Wall. 16 (1868). * Crandall v. Nevada, 6 Wall. 35 (1867). B Berney w. Tax Collector, 2 BaU. S. C. 673 (1831). 6 Van Brocklin v. Tenn, 117 U. S. 153 (1885). See also People v. United States, 93 lU. 30 (1879). ' Fagan ». Chicago, 84 111. 233 (1876). 74 EFFECT OP FOURTEENTH AMENDMENT ON STATE TAXATION. § 64 government, the State cannot tax the buildings either as personal property or as parcel of the land.^ § 64. The Effect of the Fourteenth Amendment on State Tax- ation.^ — It has been held by the Supreme Court of Alabama, that the clause in the Federal Constitution which declares that " the citizens of each State shall be entitled to all of the privileges and immunities of citizens of the several States," forbade the legislature of that State from imposing a higher tax upon the property of non-residents than, by the general laws, were imposed upon residents.^ " The Fourteenth Amend- ment, in declaring that no State shall deny to any person within its jurisdiction the equal protection of the laws, im- poses a limitation- upon the exercise of all the powers of the State that can touch the individual or his property, including among them that of taxation." This " not only implies the right of each to resort, 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 en- forcement of contracts, but also his exemption from any greater burdens or charges than such as are equally imposed upon all others under like circumstances." " It is not possi- ble to conceive of equal protection under any system of laws where arbitrary and unequal taxation is permissible ; where different persons may be taxed on their property of the same kind, similarly situated, at different rates." And the scheme of taxation in the Constitution of California was held void because of flagrant departure from the rule of equality by reason of assessing railroads for the value of their property, without allowing any deduction for a mortgage upon it, while in the case of similar property in the hands of individuals such deduction was allowed.* And not only must the taxa- 1 Andrews v. Auditor, 28 Gratt. 115 (1877). 2 See § 83. 8 Wiley V. Parmer, 14 Ala. 627. See Corfield v. Coryell, 4 Wash. C. C. (U. S.) 380, 381; Campbell v. Morris, 3 Har. & M. 535, 554; Crandall V. State, 10 Conn. 339; Oliver v. Wash. Mills, 11 Allen, 268, 281; Scott V. Watkins, 22 Ark. 564. * San Mateo v. South Pac. R. Co., 13 Fed. Kep. 733-735 (1882). See Railroad Tax Cases, 18 Fed. Rep. 385 (1883). 75 § 65 FUNDAMENTAL PKINCIPLES CONTROLLING TAXING POWEB. tion be equal, but the proceeds must not be unequally applied SO as to benefit one class of taxpayers unequally as compared with other classes. If the State may apply the funds result- ing from taxation according to the line of color or any other distinction, the whole benefits of the government may be given to some favored class, while another though equally taxed receives little or no benefit.^ In this case, however, as the money collected from each class was applied wholly to the benefit of that class, the decision that the law was void seems hardly to follow as a logical result from the Constitution or from justice, and probably really rested on a feeling of the public policy of breaking down class distinctions. § 65. The Power of State Taxation is limited hg the Provi- sion against the Impairment of Contracts. — If a State or city issues stock, agreeing to pay six per cent upon it, the obliga- tion cannot be changed by taxing the stock. There was no express reservation of tlie right of taxation, and there can be no implied reservation directly contrary to the express under- taking to pay six per cent.^ An expression of a rate of pay- ment excludes all other rates. A State cannot by subsequent legislation withhold from the interest called for by her bonds any taxes she may have levied on her obligations, even if she has any right at all to tax her bonds in the hands of individuals.^ A tax put upon a corporation by any State other than the one creating the corporation, as a condition of doing business in said foreign State, is not an impairment of contract. The corporate contract is with the creating State alone ; nor is it a violation of the clause in the United States Constitution that gives the citizens of each State all privileges and immunities of citizens in the several States. Corporations are not .citizens within the meaning of this clause. They are creatures of local law, and not even en- titled as of right to recognition in other States.* 1 Claybrook v Owensboro, 16 Fed.' Rep. 301, 302 (1883). ^ Murray v. Charleston, 96 U. S. 443 (1877). » Hartman v. Greenhow, 102 U. S. 676r685 (1880). * Liverpool Ins. Co. x\ Massachusetts, 10 Wall. 576 (1870) j Paul v. Virginia, 8 Wall. 168 (1868). 76 LIMITATIONS IN STATE CONSTITUTIONS. § 67 § 66. Concfressional Legislation cannot directly abridge the Taxing Powers of the States. — The extent, subjects, and mode of taxation are all within the discretion of the State legisla- tures. " That discretion is restrained only by the will of the people, expressed in the State constitutions or through elec- tions, and by the condition that it must not be so used as to burden or embarrass the operations of the national govern- ment. There is nothing in the Constitution which contem- plates or authorizes any direct abridgment of this power by national legislation." ^ § 67. Limitations in State Constitutions. — The usual specific limitations in favor of property are as follows : Private prop- erty shall not be talien for public use without just compensa- tion. All taxes shall be levied by valuation of estates. The obligation of contracts shall remain inviolate. No conviction for crime shall work a forfeiture of estate or corruption of blood. No soldier shall be quartered upon the citizen. The people shall be secure in their houses, papers, and possessions from unreasonable searches. Besides the foregoing, there are three additional guarantees in favor of the rights of the citi- zen : 1. "'No freeman shall be imprisoned, or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the judgment op his peers, or the law of the land." 2. " Every person in this State ought to find a certain remedy in the laws for all injuries or wrongs which he may re- ceive in his person, property, or character; he ought to ob- tain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without de- lay, conformably to the laws." 3. "The right of trial by jury shall remain inviolate." In some of the States all, and in others many, of the following limitations are imposed upon the taxing power. No tax can be levied, under any pretence whatever, without the consent of the people or their representatives. Revenue bills must originate in the lower branch of the legislature. Taxes can be levied and collected only for public purposes ; this is also implied from the very 1 Lane Co. v. Oregon, 7 Wall. 77 (1868). 77 § 68 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. definition of the tax.^ The levy must be a reasonable one. The mode of levying the tax is directed to be by valuation, so that every person shall pay a tax in proportion to the value of his estate. In order to produce equality in the assessments, new valuations of property shall be taken at stated periods. No one species of property shall be taxed higher than another of equal value. In some of the States by constitution, in others by ordinance or compact, the lands of non-resident proprietors cannot be taxed higher than lands belonging to residents of the State. To prevent the moneys raised by taxation from being squandered, and thereby create the necessity for a new levy, it is declared that no money shall be drawn from the treasury but in consequence of appropriations made by I'aw ; and, that the people may keep watch of their agents, it is further provided that accurate statements of the public receipts and expenditures shall be attached to and pub- lislied with the laws, at the end of each session of the legis- lature. Such are the positive restrictions which the people, in the exercise of their inherent sovereignty, have seen proper to impose upon the taxing power of their representatives. We shall consider first, the control which is exerted by the judiciary over the legislative departments under our Constitu- tion ; 2 secondly, the force of the clause, the " law of the land ; " ^ and thirdly, the provisions in favor of equality.* § 68. Judicial Control of Legislative Action.* — For the pur- pose of keeping the specific limitations and guarantees of the Constitution in favor of life, liberty, reputation, and property in the constant view of the people, and every branch of the government they have instituted, it is emphatically declared, " That a frequent recurrence to the fundamental principles of civil government is absolutely necessary to preserve the bless- ings of liberty." These provisions, and the declared ends of the government, would seem to afford ample security to the rights of individuals, at least so far as they can be secured by mere paper declarations. But experience has abundantly 1 See authorities cited on p. 10, note 1. = §§ 68-74. s §§ 75-102. ••§§ 104-109. * Continued in §§ 69-74. 78 JUDICIAL CONTROL OP THE LEGISLATUBE. § 69 proven that mere declarations of rights and restrictions of power afford, of themselves, but feeble security against the abuse of governmental authority. Sir William Blackstone, after treating of the absolute rights of individuals, as defined and protected by the laws of England, says, " In vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the Constitution had provided no other method to secure their actual enjoyment. It has, there- fore, established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers, to protect and maintain inviolate the three great and pri- mary rights of personal security, personal liberty, and private property." ^ § 69. The people of the United States have, in their con- stitutions, done the same thing, with this essential difference, that the outworks and barriers erected for the protection of these primary rights are much more complete and perfect than those of the British Constitution. These rights are de- fined and declared in our constitutions, substantially as they are by the common law ; but with us the Declaration of Rights is absolutely binding upon the government and every department thereof, while in England they do not bind the government. There the practical maxim is, that Par- liament is omnipotent ; ^ and the only guarantee the subject has against legislative aggression is in the organization of Parliament, and in the individual responsibility of the mem- bers of the popular branch to their constituents. In this country we have an appeal to an independent and impartial judiciary, who will bring legislative acts to the test of the Constitution, and, if found to be in violation of that instru- ment, will arrest their progress, by declaring them uncon- stitutional and void, before they reach their intended victims. This doctrine, though seriously resisted at first, is now the settled law of the land, and familiar to all.^ The reasoning ^ 1 Blackstone's Commentaries, 140. 2 Cooley's Coustitutional Limitations, 3, 4, 86, 175. * For a full discussion of this subject, see Cooley's Constitutional Limitations, p. 159 et seq., and note (3), p. 160. 79 § 70 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWKR. in support of it is unanswerable. All power is inherent in' the people. The Constitution is the form of government in- stituted by them in their sovereign capacity, in which first principles are laid down and fundamental laws established. It is the supreme, permanent, and fixed will of the people in their original, unlimited, and sovereign capacity. In it the inherent rights of the citizen are recognized, and tha obliga- tion and duty of the entire community to protect and preserve them inviolate are specifically provided for. It is the power of attorney of the people to their servants and agents, — the government of the state. From the decrees of the Constitu- tion there can be no appeal, for it emanates from the highest source of human power. An act of the legislature is the will of the people in a derivative and subordinate capacity. The Constitution is the commission of the legislative body, and that body must act within the pale of its authority ; and all of its acts contrary to, or in violation of, the constitutional charter are absolutely void. The supremacy of the Constitu- tion over ordinary laws is the great reason why the latter should give way when inconsistent with the former. The oath of fealty taken by every officer of the government demands, at the hands of the judges, an adherence to the fundamental law. § 70. Besides, the Constitution is a law to which every citizen is a party, but acts of the legislature are but the will of a majority of the community. To make them binding upon the minority, they must be in conformity with the principles of the Constitution; to the adoption and contin- uance of which every one is presumed to have assented. If the legislature, in the exercise of an unlimited discretionary, power, can overleap the barriers of the Constitution, and put at defiance the fundamental principles of the government, then our boasted freedom and independence is all a mere delusion ; and instead of looking up to the fabric of our political insti- tutions with reverence, as the means of establishing an im- mense empire in which freedom and the rights of man shall be understood and maintained, the government of the law only acknowledged, and the eternal principles of justice secured to 80 JUDICIAL CONTROL OP THE LEGISLATURE. § 71 all, we shall, in the language of a distinguished statesman, " be called upon to curse our Revolution as a great fountain of discord, violence, and injustice." ^ In the language of Chief Justice Gibson : " It is idle to say that the authority of each branch of the government is defined and limited in the Con- stitution, if there be not an independent power able and willing to enforce the limitations. Experience proves that the Con- stitution is thoughtlessly, but habitually, violated ; and the sacrifice of individual rights is too remotely connected with the objects and contests of the masses to attract their atten- tion. From its very position, it is apparent that the conserva- tive power is lodged in the judiciary, which, in the exercise of its undoubted rights, is bound to meet every emergency ; else causes would be decided not only by the legislature, but some- times without hearing or evidence." ^ § 71. In the election, qualification, and organization of the various oSicers which constitute the several departments of the government, our constitutions are also more complete than in the English system. Here, the people elect all of their officers. In England, most of the important offices are held independently of the people. But the great advantage of ours over the British Constitution consists in the division of the government into separate, independent, and co-ordinate de- partments, and the consequent limitation of legislative power. As a practical idea, this is purely American. It is the great feature which distinguishes ours from every other government. In all others the theory is, that the legislative authority is supreme and despotic, absolutely incapable of limitation ; consequently, that ah act passed with the usual solemnities, however oppressive and unjust it may be, is absolutely obligatory, and must be obeyed. This distributive feature of our government, as it is deemed the most important of any, is the only outwork or barrier established by the Con- stitution Ugainst governmental abuse of power ; which we pro- pose to consider minutely. 1 Runnels v. State, 1 Miss. (Walker) 147; Phoebe v. Jay, 1 HI. 207, 209; Marbury v. Madison, 1 Cranch (U. S.), 137. 2 De Chastellnx v. FairchUd, 15 Pa. St. 18. VOL. I. — 6 81 § 74 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. § 72. The Coustitution of IHinois sets out with this decla- ration : " The powers of the government shall be diyided into three distinct departments, and each of them be confided to a separate body of magistracy, — those which are legislative to one, those which are executive to another, and those which are judicial to the third." The principle thus established is carried out in detail by the organization of a general assem- bly, consisting of a Senate and House of Representatives, and investing it with the legislative power of the State ; by the or- ganization of an executive department, called the governor, in which the executive power of the State is lodged; and by the organization of supreme and inferior courts, to whom the judi- cial power of the State is delegated. The Constitution then limits the power of each of these great departments as hereto- fore shown, and declares, in the most explicit language, " that no person, or collection of persons, being one of these depart- ments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted ; and all acts in contravention of this section shall be VOID." § 73. It will be perceived, by a careful analysis of the whole instrument, and the above sections, that all legislative power is vested in the general assembly; that the whole judicial power whicli the people intended to grant is vested in the courts ; and that every executive function of the govern- ment is vested in the governor. This is to be understood subject to the exceptions expressly enumerated in the Constitution, which serve as an additional proof of the truth of the general rule. One* of these exceptions is the im- peachment of public officers. The House of Representatives may impeach, and the Senate try the offender. Thus the whole judicial power of the State is vested in the courts, with the exception of the trial of impeachments. § 74. It will be further perceived, that the general assem- bly and governor, or either of them, cannot exercise any judi- cial functions ; that neither the general assembly nor the courts can exercise any executive power ; and that neither the governor nor courts can properly exercise any legislative 82 JUDICIAL CONTROL OF THE LEGISLATURE. § 74 power. And if, in any case, they transgress the principle thus laid down, their act is a nullity. It will also be seen that the disqualification extends to the person and the department. The great principle thus established is, that no person or de- partment shall act as legislator, judge, and executioner, at the same time. He shall not be permitted to enact, apply, and execute a law by which the life, liberty, property, or reputa- tion of the citizen may in any manner be affected. While these propositions are universally admitted, the difl&culty in carrying them into practical operation seems to be in defining with precision the exact limits of legislative, executive, and judicial power. With due deference to timid judges who seem unable to surmount this difficulty, and therefore give loose rein to legislative power, it may be laid down as a self-evident proposition, that the power of the legislative department is limited to the making of laws, and not to the exposition or execution of them. Again, it is the province of the legislature to declare what the law shall be, and not what it is, or was.^ The exercise of their power precedes the conduct intended to be affected by it. It would be contrary to the first principles of justice to deprive a citizen of his life, liberty, or property, by an ex post facto or retrospective law. Under such a system of legislation no person could be secure in his rights ; no one could ever know what his rights were, nor for what act of omission or commission on his part they might be for- feited to the state. Such an administration of the govern- ment would be intolerable, — as unjust as the enactment of general laws, and at the same time, Caligula-like, with- holding a knowledge of their provisions from the people upon whom they were designed to operate. To use the expres- sive language of Judge Coulter : " That is not legislation which adjudicates in a particular case, prescribes the rule contrary to the general law, and orders it to be enforced. Such power assimilates itself more closely to despotic rule than any other attribute of government." ^ On the other hand, the judicial power of the state acts upon past conduct, > See Cooley's Constitutional Limitations, p. 92 et seq. ' Ervine's App., 16 Pa. St. 256, 266. 83 § 75 FUNDAMENTAL PRINCIPLES CONTEOLLING TAXING POWEK. and declares what the law was at the time of the happening of the act complained of. It will thus be seen that the true distinction between judicial and legislative power is, that the former acts upon past conduct, while the latter prescribes the rule by which human action shall be governed in the future. If this plain line of demarcation between these two classes of governmental power is strictly observed and rigidly enforced, the difficulty attending this controversy will be surmounted, and the rights of the citizen more fully secured. § 75. The "Law of the Iiand," and "Due Process of Id,w." — These phrases are conceded to be of the same meaning, and will be considered together.^ Our constitutions all declare, " That no freeman shall be imprisoned or disseised of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the JUDGMENT OF HIS PEERS, OR THE LAW OF THE LAND." ^ This clause, on account of its bearing on the subject under consideration, as well as its great importance when properly understood, as a protection against legislative spoliation, also deserves a critical examination. It will be observed that the clause does not absolutely prohibit the legislature from de- priving a freeman of his life, liberty, or property, but declares that it shall only be done in one of two ways : (1) " By the judgment of his peers ; " which is universally admitted to mean a judgment rendered upon the verdict of a jury ; ^ 1 This subject is discussed at length in §§ 76-102. ^ The amendment to the Constitution of the United States that no person shall be " deprived of life, liberty, or property without due process of law," is not restrictive of State powers. Withers v. Buckley, 20 How. (U. S.) 84 ; Witherspoon v. Duncan, 4 Wall. (U. S.) 210; Abb. Nat. Dig., Const. Law, § 60. " Under a statute (Laws of Mich, of 1865, p. 576) providing that " any person claiming title to lands through the Auditor- General's deed, executed upon a sale thereof for non-payment of taxes, may file a bill in chancery to quiet his title thereto, without taking possession thereof," etc., held, that under Art. 6, § 27, of the Constitution (providing that " the right of trial by jury shall remain," etc.), the legislature could not author- ize such a proceeding without providing a mode by which the defendant could have a jury trial, if he so elected, where the right existed when the Constitution was formed, as in this case. Tabor v. Cook, 15 Mich. 322. 84 LAW OP THE LAND. § 75 or, (2) " By the law of the land," — this, in England, where the same language was used in Magna Charta, was, as some hold, understood to require a judgment ; and embraced judg- ments by confession in criminal and civil causes, upon demurrer by default, and all other judgments which by the general laws of the realm it was legal to render without a regular trial by jury, — such as judgments for con- tempt, convictions under the military and naval laws of the kingdom, judgments in the ecclesiastical and other courts, proceedings according to the course of the civil law. There has baen much dispute about the real meaning of the words " law of the land," it being held on the one hand that they necessarily included judicial action before a man can be de- prived of his property, and on the other that they do not necessarily and in all cases require such action. It is tol- erably clear that the latter is the only sustainable position. Due process is not necessarily judicial, but includes all forms whieh have been established for the enforcement of law and the protection of rights. Any method, as the abatement of a nuisance by the person injured, a blow in self-defence, tearing down a house to prevent the spread of fire, which is recog- nized by the law, is valid. In these ways and others a man may be deprived of his property, according to the law of the land, without any trial by jury or suit in court. If the legislature makes a law taking property summarily, the owner can con- test the validity of the proceeding in court. Judicial investi- gation may be invoked by him, so that there is no exclusion of this element of the government from the matter, and there may be good reasons for the government's taking the property without a previous judgment, — taking it on clear and plain conditions, and leaving the owner to take subsequent advan- tage of any defect in the proceedings. Such a process, or any other, may become a part of the law of the land. It is not a construction complimentary to the authors of the Con- stitution to declare that the clause "law of the laud" means no more than the preceding clause, " judgment of his peers." The latter means trial by jury ; the other means more. It means any process recognized by the established usage of the 85 § 75 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. country. The law of the land is certainly not a cast-iron institution that cannot be changed. We are not imprisoned in the past. The Constitution gives the judiciary a power over the legislature, but it is not necessary that the judicial review should be first in the series of events. Summary process existed for the collection of taxes at the time of Magna Charta; trial by jury was not universal theft. And even the processes of the common law may be changed. If the legislature cannot change the law of the land in respect to the process of taking property, in what respect can it change the law? Every alteration will result in depriving persons of their property, under a more or less different sys- tem of law and proceeding from that in existence at the time of the Constitution. The provision gives the Constitution flexibility ; it is only intended to give the judiciary a wide space in which to apply justice and public policy to the wiping out of injurious legislation. They constitute the real basis of the law of the land, which changes as the people learn more of their nature. Practically the result of the cases is as follows : 1. Proper provision for notice to the taxpayer must be made. It is not in the power of the legislature to dispense with that, nor to cure its absence. 2. If the taxes are paid before sale the proceedings are void, and no legislative action can give title by, or cure title founded on a sale, after the taxes for which the land was ostensibly sold were paid. 3. In other respects the legislature may enact the conditions of sale, and may provide as to the manner of all proceedings. The process by which the taxpayer is de- prived of his property need not involve any trial by jury nor any judgment; it may, if the legislature so choose, be a summary process ; but the taxpayer may, of course, contest the validity of the proceedings in the courts. Judicial action is not necessary to divest his property. If the essential facts exist, his property is gone without any intervention of the judges ; but if his property is claimed by one not rightfully entitled under the tax laws, the owner may contest the claim, and ask the aid of the courts. Further, although the legislature can provide for the divesting of the right of prop- 86 LAW OP THE LAND. § 76 erty and the right of possession by summary process, so that they shall be complete in the purchaser at tax sale without any judicial action ; and may provide that if he gains posses- sion under his tax title, no action shall be maintained against him after a reasonable time has elapsed, and so transfer the complete title to him, possession and all, without any judicial action ; yet, if the former owner is in possession^ the law can- not divest him of that and give it to the purchaser, without a judgment. The legislature cannot order the police to put the tax purchaser in possession.^ If the purchaser cannot gain, peaceable possession, he must bring his suit, and estab- lish his right of possession and get judgment. This, then, is the line drawn by the clause under discussion, — the law of the land does not allow the taking of the possession from one in the enjoyment of it and giving it to another, without judi- cial action ; but all the elements of title except the actual possession may be summarily transferred, and if possession can be peaceably attained the statutes of limitation may com- plete the title without a judgment. § 76. " Due process of law " means " in due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights." Vested rights cannot be transferred from A. to B. without " bringing in A. to answer." ^ " Due process of law requires an orderly proceeding adapted to the nature of the case, in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. A hearing, or an opportunity to be heard, is absolutely essential. An assessment for street im- provements is a judicial proceeding, and notice and an oppor- tunity for a hearing before the proceedings can become effectual are necessary." ^ In this case the real point was that the law did not provide for notice. If notice is given, the land-owner would then always have an opportunity to be heard by bringing suit to enjoin collection, and the legis- lature could not deprive him of all right to contest the assessment in the courts, though it could prescribe the mode 1 § 1077. " Westervelt v. Gregg, 12 N. Y. 212 (1854). » Stuart V. Palmer, 74 N. Y. 191 (1878). 87 § 79 FUNDAMENTAL PRINCIPLES CONTEOLLING TAXING POWER. of his remedy ; an opportunity to be heard if he desires it is all that is necessary. § 77. Due Process of Law is not necessarily Judicial Pro- cess.^ Much of the process by means of which the govern- ment is carried on and the order of society maintained, is purely executive or administrative, which is as much due process of law as is judicial process. The bills of rights in the American constitutions were not drafted to introduce new law, but to conserve existing rights, and secure old principles from violation. Nothing previously in use regarded as necessary in government and sanctioned by usage can be looked upon as condemned by this provision as to due process. Any legal process which was originally founded in necessity, has been consecrated by time, and approved and acquiesced in by universal consent, must be considered an exception to the right of trial by jury, and is embraced in the alternative " law of the land."2 " Due process of law" does not mean by a judi- cial proceeding. The nation from whom we inherit the phrase has never relied on the courts for the collection of her taxes.^ § 78. A person cannot be deprived of his property abso- lutely beyond his contesting the matter, without judicial action ; but it is not necessary that resort to the courts be had before his property is assessed, if he has the right to be heard after- wards in a suit to enjoin the collection, or in proceedings to enforce the collection.* § 79. The legislature is not supreme. It only has such power as has been delegated to it. The Constitution says " the legislative power of this State shall be vested in a sen- ate and assembly." But the legislative power does not extend to take life, liberty, or property from a citizen who is not charged with transgressing the laws, and when the sacrifice 1 Cruikshanks v. The City Council of Charleston, 1 McCord, 360 (1821). See next note. 2 Weimar v. Bunbury, 30 Mich. 214 (1874) ; State v. Allen, 2 McCord, 56 (1822); High v. Shoemaker, 22 Cal. 363 (1863); Rockwell v. Nearing, 35 N. Y. 308 (1866). » McMillen v. Anderson, 95 U. S. 41 (1877). * Hagar v. Reclamation Dist. No. 108, 111 U. S. 701 (1883). 88 LAW OP THE LAND. § 81 is not demanded by a just regard for the public welfare. The legislature cannot compel A. to transfer his property to B. with or without compensation. It cannot make bargains for A. Further, the Constitution contains positive restrictions. " ' By the law of the land ' does not mean a statute passed for the pur- pose of working the wrong." The matter must be adjudged in trial had according to the course of the common law.^ In this case the subject was one which was properly the subject of jury trial, and the exceptions did not occur to the mind of the court. § 80. A municipal ordinance declaring that a tax certificate shall be evidence of a right to possess the premises and to re- tain them until redeemed, and authorizing the mayor to direct the police to put the tax purchaser in possession, is unconsti- tutional and void, as taking property without due process of law.2 The court cited the great case of Dorman v. The State,' to the effect that " An act of the legislature is not, and noth- ing less than a regular judicial trial is, ' due course of law,' within the meaning of the Constitution." § 81. In Davidson v. New Orleans* the court very^ fully considered the meaning of the phrase " due process of law," remarking that it was the equivalent of the words " law of the land," in the Great Charter, but that the meaning was not as yet very definitely ascertained. " It is easy to see that when the great barons of England wrung from King John, at the point of the sword, the concession that neither their lives nor their property should be disposed of by the crown, except as provided by the law of the land, they meant by the 'law of the land' the ancient and customary laws of the English people, or laws enacted by the Parliament of which those barons were a controlling element. It was not in their minds, therefore, to protect themselves against the enactment of laws by the Parliament of England. But when, in the year of grace 1866, there is placed in the Constitution of the 1 Taylor v. Porter, 4 Hill (N. T.), 145-147 (1843). " Calhoun v. Fletcher, 63 Ala. 575 (1879); Const, of 1875, § 7. » 34 Ala. 216. « 96 U. S. 101, 102 (1877). § 82 FUNDAMENTAL PEINCIPLES CONTROLLING TAXING POWEE. United States a declaration that ' no State shall deprive any person of life, liberty, or property without due process of law,' can a State make anything due process of law which, by its own legislation, it chooses to declare such ? To affirm this is to hold that the prohibition to the States is of no avail, or has no application where the invasion of private rights is effected under the forms of State legislation." Due process of law does not necessarily imply a regular proceeding in a court of justice, or after the manner of such courts. But the precise definition of the meaning of this clause must be left to be formed by the gradual process of judicial inclusion and exclusion, as the cases arise. For this case it is sufficient to decide that when a tax, assessment, or other burden is im- posed by State law for a public purpose, and a mode is pro- vided of confirming or contesting the charge in the courts, the owner is not deprived of his property without due process of law. § 82. By the common law of England, and the laws of many of the colonies before the Revolution, and of States be- fore the formation of the Federal Constitution, a summary •process existed for the recovery of debts due the government. " We apprehend there has been no period, since the establish- ment of the English monarchy, when there has not been, by the law of the land, a summary method for the recovery of debts due the crown." ^ The right of trial by jury never ex- tended to cases of debtors to the State or to counties, and the Constitution merely preserves the old rights, and " does not enlarge the right of trial by jury, nor extend it to cases where previous to the Constitution it did not belong as a matter of right ; and in all cases when the legislature had withheld or might withhold the trial by jury, before the Constitution, they may do so after it came into operation." ^ " Though ' due pro- cess of law ' generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial accord- ing to some settled course of judicial proceedings, yet this is 1 Murray's Lessee v. Hoboken Land and Improvement Co. , 18 How. U. S. 277 (1855). 2 Harris v. Wood, 6 T. B. Monr. (Ky.) 642 (1828). 90 LAW OP THE LAND. § 84 not univei'sally true. There may be and we have seen that there are cases, under the law of England, after Magna Charta, and as it was brought to this country and acted on here, in which process in its nature final issues against the body, lands, and goods of certain public debtors without any such trial."! § 83. State revenue laws are not in conflict with the 14th Amendment of the United States Constitution, though they do not provide that a person shall have an opportunity to be pre- sent when a tax is assessed against him, or that the tax shall be collected by suit. If he has a right to enjoin the collection and so test the validity of the tax judicially, the statute is due process of law.^ The summary collection of taxes does not violate the constitutional provisions which restrain the gov- ernment from taking property without due process of law ; nor is it a taking of private property for public use within the meaning of the Constitution.^ But the requirements of the Constitution were intended to secure the individual from the arbitrary exercise of the powers of government unre- strained by the established principles of private rights and distributive justice; and a law which took the property of A. and gave it to B., without judicial action ascertaining the superior right of B., would be void, as taking property without due process of law ; and when as in this case the law provides for fixing the liability of a lessor for rent by an ex parte report, of which the supposed lessor has no notice, it is open to the same objection of invalidity.* § 84. A tax law is not unconstitutional because it does not give a right of appeal to a jury.^ A collection of taxes either by judicial proceedings or by summary process is valid. " A tax duly levied becomes a lien upon the land, which may be enforced in such manner as the legislature shall prescribe. 1 18 How. V. S. 280. « McMiUen v. Anderson, 95 D. S. 37 (1877). » McFadden v. Longman, 58 Tex. 584 (1883). * lb. See also for the principles, Bank of Columbia v. O'Eely, 4 Wheat. 242 (1819); and Taylor v. Porter, 4 Hill, 140 (1843). s Howe V. Cambridge, 114 Mass. 890 (1874). 91 § 86 FUNDAMENTAL PEINCIPLES CONTROLLING TAXING POWER. The mere remedy is always within the legislative control A change in it disturbs no vested rights " ^ In Georgia, " no replevin shall lie, nor any judicial interference be had in any levy or distress for taxes under the provisions of this code," etc.^ The provision of the Constitution saving " trial by jury as heretofore used in this State " does not apply to the case of a taxpayer. It is not a case in which trial by jury had been " used " at the time of the adoption of the Constitution.^ § 85. In Davis v. Clinton * the court said they should " as- sume that the valuation made by the assessor was a valid exercise of the taxing power as provided by statutes, although the plaintiff by a sale of tiie property taxed might be deprived thereof without having had a day in court or trial by jury." The statute provided for a board of equalization before which any person could appear. It is not essential to tax proceed- ings that there should be provision for trial by jury, or that there should be a judgment of court. Selling land for non- payment of taxes is administrative, not judicial. " It is mani- festly proper that the taxpayers should have notice of the imposition proposed to be laid upon them. But it is for the legislature to determine in every case what shall be suflBcient, and there is not, that I am aware of, any constitutional provi- sion bearing on the subject." ^ § 86. In State v. Mayhew * the defendant contended that the power of the legislature went no further than to assess property and prescribe the rate of taxation, and that it must be left to some judicial tribunal of the State to ascertain the amount of each individual's indebtedness ; and when thus as- certained the payment could only be enforced by resort to the courts. Dorsey, J., remarked : " If such be the constitutional 1 Pritchard v. Madi-en, 24 Kan. 491 (1880). » Georgia «. Frazier, 48 Ga. 139 (1873) ; § 3618 Code. * Harper u. Elberton, 23 Ga. 568 (1857); CommissiouerB v. Morrison, 22 Minn. 181 (1875). • 55 Iowa, 550 (1881). 6 Matter of Trustees of N. Y. P. E. Pub. School, 31 N. Y. 584 (1864). « 2 GUI, 496, 497 (1845). See, to the same effect, 2 Hawks. 207 (1822). 92 LAW OP THE LAND. § 87 * restrictions imposed on the powers of taxation the sovereign authority of the State is virtually disrobed of its most impor- tant and invaluable rights, of the very essence of sovereignty. The delays and expenses incident to such a system of collect- ing public taxes would effectually paralyze the right arm of government, and render it wholly incompetent to the ac- complishment of the all-important objects for which it was constituted. That the General Assembly of Maryland has the right, by legislation, to impose upon all property within the State a just and proportionately equal public tax, and in like manner provide all means necessary for its speedy col- lection by summary process of execution or other reasonable or available mode, is, we believe, now for the first time made the subject of a doubt. That such powers should have been exer- cised without being questioned, from the time of the adoption of our Constitution till the present time, a period of nearly seventy years, ought to be deemed almost conclusive evidence of their being possessed by the legislature." § 87. Lord Coke said, that " to judge a man in a civil or criminal case, without affording him an opportunity to be heard in his own defence, would be against the provision in question." 1 That this was the meaning of the expression, " LAW OP THE LAND," as uscd in the great charter of English rights, seems to have been the opinion of all the common-law jurists in that country ; but that it means the same thing in our own Constitution has not been so universally agreed. Some judges have been greatly perplexed in attempting to ascertain its true meaning, and have given judgment in entire disregard of it. One judge, at least, admitting that it did mean and require a " judgment," obviated its force by saying it applied only to criminal cases, and that, unless the clause was so restricted, it would be in opposition to legislative usage.^ The Supreme Court of New Hampshire, in the Dartmouth Col- lege case, decided "That all statutes not repugnant to any other clauses of the Constitution seem always to have been considered as the ' law of the land,' within the meaning 1 Sullivan's Lectures, ch. 39 and 40. 2 Rhinehart ». Schuyler, 7 HI. 473, 520. 93 § 89 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. of this clause."^ But their judgment was reversed by the Supreme Court of the United States.^ In another case, where the validity of a statute authorizing an arrest in a criminal case, without oath or warrant, came in question, the same court held the following language : " No subject shall be arrested but by the ' law of the land,' — that is, by due process of law warranted by the Constitution, by the common law adopted by the Constitution, or by statutes passed in pursu- ance of the Constitution." 3 § 88. C. J. Hemphill says : " The terms ' law of the land ' have often been construed, and somewhat variously de- fined. When first used in the Magna Charta of the kings of England, they probably meant the established law of the kingdom, in opposition to the civil or Roman law, which was about being introduced into the land, to the exclusion of the former laws of the country. They are now, in their most usual' acceptation, regarded as general public laws binding upon all the members of the community, under all circum- stances, and not partial or private laws affecting the rights of private individuals, or classes of individuals."* The conjec- ture of Judge Hemphill, that it was the common as contra- distinguished from the civil law, intended by this clause, is not a very reasonable one, when it is remembered that Sulli- van, in his lectures, and all of the English jurists agree that judgments in the ecclesiastical and maritime courts, which proceed upon the principles and in conformity to the practice of the civil law, are regarded as valid under this clause ; and when it is further remembered that such a construction of the term "law" would confine the people of England to the old black-letter law, without the legislative power of modifying and improving it, to meet the progressive demands of modern civilization. § 89. Judge Catron remarks that " the clause ' law of the land ' means a general and public law, equally binding upon every member of the community. The right to life, ' Dartmouth College v. Woodward, 1 N. H. 130. 2 4 Wheat. (U. S.) 518. » Mayo v. Wilson, 1 N. H. 53. * Janes v. Reynolds' Adm., 2 Tex. 251, 252. 94 LAW OP THE LAND. § 90 liberty, and property, of every individual, must stand or fall by the same rule or law that governs every other mem- ber of the body-politic under similar circumstances; and every partial or private law which directly proposes to de- stroy or effect individual rights, or does the same thing by affording remedies leading to similar consequences, is uncon- stitutional and void. Were this otherwise, odious individuals and corporate bodies would be governed by one rule, and the mass of the community, who made the law, by another. The idea of the people, through their representatives, making laws whereby are swept away the life, liberty, and property of one or of a few citizens, by which neither the representative nor their other constituents are willing to be bound, is too odi- ous to be tolerated in any government where freedom has a name. "1 § 90. This doctrine is advanced by Judge Peck, in the same case, in these words : " A law which is partial in its operation, intended to affect particular individuals alone, or to deprive them of the benefit of the general law, is unwarranted by the Constitution, and void." ^ The principle was again aifirmed in Jones' Heirs v. Perry.* In this case the court held that the sale of the estate of a ward, by his guardian, under a special act of the legislature, no judicial proceedings inter- vening, was not a sale according to the " law of the land." The same principle was applied by the Supreme Court of Illi- nois, upon this state of facts : The legislature passed a special act authorizing A. to sell and convey the lands of an intestate, or a sufficiency thereof to raise the sum of $1,008.87, together with interest and costs ; and directed that the pro(!feeds should be applied to the extinguishment of the claims of A. and B. against the estate of the decedent, for moneys advanced, and liabilities incurred by them on account of the estate. The court held the law unconstitutional, because it was an exer- cise of judicial power by the legislature, and also, to use the language of the court, it " disseises the freehold of the heirs of the ancestor, without a hearing, upon an ex parte applica- » Vanzant v. Waddel, 2 Yerg. (Tenn.) 260, 270. 2 Id. 269. « 10 Yerg. (Tenn.) 59. 95 § 92 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. tion and ex parte evidence. It will not, we suppose, be seri- ously contended that such an act, thus passed, under such a state of facts, is the lex. terrce meant, or the judgment of one's peers intended by the Constitution." ^ § 91. Tennessee and Massachusetts. — The same construc- tion is given to this clause by the Supreme Court of Tennessee in two other cases.^ In the latter case it was held, that an act of the legislature, declaring it a felony for a servant to embezzle the funds of a particular bank, while the same crime under the general law was a simple misdemeanor, was con- trary to this clause, and void. The same principle was ap- plied by the Supreme Court of Massachusetts to a special act of the legislature, suspending the operation of a general limi- tation law in favor of a particular class of creditors.^ In South Carolina they hold that the Constitution guarantees to the citizen " a trial according to the course of the common law, which," says Judge O'Neall, " I understand to be the meaning of the words ' the law of the land.' " * Again, in Byrne's Adm. V. Stewart's Adm., Chancellor Watties remarks : " It has been determined by the Constitutional Court, in several cases, that the lex terrce contemplated by our Constitution not only means the common law, which is unquestionably the sense in which it is understood in Magna Charta, but also comprehends all acts in force at the time of making the Constitution." ^ Such a construction of the clause is evidently too narrow and con- fined, as it would tie up the hands of the legislature, and prevent them from enacting laws which the imperative neces- sities of society may from time to time require. § 92. Webster. — The masterly and comprehensive defi- nition of this clause by Daniel Webster is, perhaps, sus- 1 Lane v. Dorman, 4 111. 238. " State Bank v. Cooper, 2 Terg. (Tenn.) 599, 605, 606; Budd v. State, 3 Humph. (Tenn.) 483. * Holden v. James, 11 Mass. 396. * State, ex rel. Carter, v. Burger, 1 McMuU. (S. C.) 413; State, ex rel. Kohne, v. Simons, 2 Speers (S. C), 761, 767; Zylstra v. Charleston, 1 Bay (S. C), 382; "White v. Kendrick, 1 Brev. (S. C.) 469, 471; State, ex rel. Coleman, v. Maxey, 1 McMuU. (S. C.) 501, 502. 6 3 Dessaus. (S. C.) 466, 478. LAW OP THE LAND. § 93 tained with more unanimity by the authorities than any other : " By the law of the land is most clearly intended the general law, — a law which hears before it condemns, — which proceeds upon inquiry, and renders judgment 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. Everything which may pass under the form of an enactment is not, therefore, to be con- sidered as the law of the land. If this were the case, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land. Such a strange construction would render constitu- tional provisions of the highest importance completely in- operative and void. The administration of justice would be an empty form and idle ceremony, and judges would sit to execute legislative judgments and decrees, not to declare the law and administer the justice of the country."^ § 93. In Taylor v. Porter^ Judge Branson says of this pro- vision : " The meaning of this section, then, seems to be, that no member of the State shall be disfranchised, or deprived of any of his rights or privileges, unless the matter shall be adjudged against him upon trial had according to the course of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either can be taken from him. It cannot be done by mere legisla- tion." Judge Bronson further says in the same case that the words under discussion " do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction nugatory, and 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 * Argument in the Dartmouth College Case, 5 Webster's Works, 487, 488. « 4 Hill (N. Y.), 146. VOL. r.-7 97 § 95 FUNDAMENTAL PRINCIPLES CONTBOLLING TAXING POWEP.. 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 wrong unless you choose to do it.' " Again he remarks : " It will be seen that the same measure of protection against legislative encroachment is ex- tended to life, liberty, and property ; and if the latter can be taken without a forensic tijial and judgment, there is no se- curity for the others." He concludes that " the law of the land " and " due process of law " are synonymous terms. A similar decision was made in White v. White.^ The doctrine of Webster and Bronson is adopted, in its fullest extent, by the Supreme Court of lowa.^ § 94. Judge Story says that " this clause, in effect, afl&rms the right of trial according to the process and proceedings of the common law." ^ Chancellor Kent says, " The words, ' by the law of the land,' as used in Magna Charta, etc., are understood to mean due process of law." * Justice Johnson, in delivering the opinion of the court in the Bank of Colum- bia V. Okely,^ and spejiking of these words, says that " after volumes spoken and written with a view to their exposition, the good sense of rdankind has at length! settled down to this : that they were intended, to secure the individual from the arbitrary exercise of the powers of government, unre- strained by the established principles of private rights and distributive justice." § 95. The clause in question accomplishes this intention completely, if it requires judicial as well as legislative action ; but if it means that a man may be deprived of his rights simply by an act of the legislature, without judgment, it is difficult to perceive, in such a case, how the citizen can be said to be secured against the arbitrary exercise of legislative power, or how the legislature is restrained by the established principles of private right and distributive justice. Judge » 5 Barb. (N. T.) 474, 481-483. = Reed v. Wright, 2.Greene (Iowa), 15, 22, 24. » Story on the Constitution, § 1783. * 2 Kent's Commentaries, 13, 6 4 Wheat. (U. S.) 244. 98 LAW OP THE LAND. § 96 Woodworth, iu Woodcock v. Bennet,^ remarks, that " it is one of the great principles upon which our security depends, under a government of laws, that no person shall be put out of his freehold, or lose his goods and chattels, unless he be duly brought to answer, or be forejudged of the same by due course of law." Judge Tucker says of these words, " the meaning and intention of which certainly is, that no man shall be deprived of his property, without being first heard in his own defence." ^ Chief Justice Ruffin says, " This clause does not mean an act of the legislature, for that construction would abrogate all restriction on legis- lative authority. The clause means that statutes which would deprive a citizen of the rights of person or property, without a regular trial according to the course and usage of the common law, would not be the law of the land in the sense of the Constitution."^ In Brown v. Hummel* it is said by the judge delivering the opinion of the court, that, " By the law of the land is meant the law of an individual case as established in a fair open trial, or an opportunity given for such trial in open court and by due course and' process of law ; not a bill of attainder, in the shape of an act of assembly, whereby a man's property is swept away from him without a hearing, trial, or judgment^ or the opportunity of making known his rights or producing his evidence." § 96. Again, the same court, in Ervine's Appeal^ state, that this clause " is an affirmation of a great doctrine contained in Magna Charta : ' Neither will we pass upon any one, but by the lawful judgment of his peers, or by the law of the land ; ' and Lord Coke says tliat the words per .legem terrce mean by due process of law, and being brought into court to answer according to law. If government is interdicted from taking private property, even for public use, without just com- pensation, how can the legislature take it from one man and dispose of it as they think fit ? The great principle is, that a 1 1 Cow. (N. Y.) 711, 740. « Kinney v. Beverley, 2 Hen. & M. (Va.) 318, 336. » Hoke V. Henderson, 4 Dev. (N. C.) 1, 15. * 6 Pa. St. 86, 91. « 16 Pa. St. 256, 263. § 98 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER, man's property is his own, and that he shall enjoy it accord- ing to his pleasure, — injuring no other man, — until it is proved, in due process of law, that it is not his but belongs to another." Judge Pope affirms the same general principle in Arrowsmith v. Burlingim.^ § 97. 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 legislature levy the tax, direct that a demand shall be made upon the owner of the land for the tax charged against it, and if payment is refused, authorize the collector to seize the body or goods of the delinquent ; and in case satisfaction is not had in one or the other of these modes, power is conferred upon the col- lector 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, must 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 tlie regularly constituted judicial tribunals, or in those specially instituted for that purpose, or in the collector himself, can make no kind of difference ; it is the exercise of judicial power, and the officer who sells performs an executive function ; so that, in point of fact, the legislative, judicial, and executive departments of the government all aid in the execution 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 pronounce a judgment of condemnation. § 98. For these reasons it has been suggested by an emi- nent lawyer of Illinois, who has great experience in questions of this character, that " No valid sale of land for the non-pay- ment of a tax, having the effect of divesting the owner of his estate, can legally take place, unless each of the three great departments of the government concur in the condemnation." ' 4 McLean, C. C. (U. S.) 489, 498. For an exhaustive discussion of this subject, see Cooley's Constitutional Limitations, ch. xi. p. 351. 100 LAW OF THE LAND. § 99 It was in accordance with this suggestion that the legislature of Illinois, in 1839, passed a new revenue law, levying a uni- form tax, requiring a personal demand of the owner, and directing that in case payment of the tax was neglected or refused, the goods and chattels of the delinquent should be seized and sold in satisfaction. The collector was re- quired to report a list of the delinquents who had no goods and chattels in the county out of which the tax could be levied, to the Circuit Court of the county, and apply for judgments against their lands, first giving notice in a news- paper of his intention to make the application. Upon filing his report and a copy of the advertisement, certified by the printer, if no objection was taken to the regularity or legality of the proceedings, the court was authorized to render a judgment for the taxes, and order a sale of the land. After judgment, the clerk was required to make out, under the seal of the court, and deliver' to the collector, a precept containing a copy of the report and the order of the court thereon, which constituted the authority of the officer to sell. This continues substantially the law of Illinois to this day. § 99. Similar statutes were in force in Tennessee, Ohio, and Indiana. No such power as that of selling land for the non- payment of taxes is to be found in the revealed, natural, civil, or common law. But there are analogous powers to be found in the common-law code, and in the statute law of every civilized nation ; for example, the power to condemn land for public uses, and in other cases where power is exer- cised over the estates of the citizen, such as the sale of land for the payment of the debts of the owner. In all of these cases judicial proceedings intervene. The Constitution de- clares that private property may be taken for public use, upon making just compensation. The legislature direct the l§iying out of a public highway. Before the title of the owner is divested, a regular judicial inquiry takes place. The ques- tions, whether the use is a public one, or whether it is a mere legislative pretence to divest the title of the owner and con- fer it upon a favorite, and what compensation shall be made to the owner as an equivalent for the loss of his estate, are 101 § 99 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. all inquired into and judicially decided, after due notice and a hearing. So in every case where the title to real or per- sonal property is sought to be divested, under the general laws of the land, judicial proceedings always intervene. There is no difference in principle between the power of taking land for public use, and the power to tax and enforce its collection by a sale of the land. In both cases the land is taken for the use of the public ; they differ only in degree. Why, then, should not the same solemn forms be pursued in the one case as in the other ? The only answer is, state necessity and immemorial usage. The former demands, and the latter sanctions, this departure from the letter and spirit of the Constitution. It is said in Parham v. Decatur County,^ that "the sovereign right to lay and collect taxes grows out of the necessities of the government, — an urgent necessity, — which admits no property in the citizen while it remains unsatisfied. The right to tax is coeval with all gov- ernments. It springs out of the organization of the govern- ment. All property is a pledge to pay the necessary debts and expenses of the government." The Supreme Court of Tennessee decided that their summary tax laws were consti- tutional, holding this language : " It is certainly true that they have the character of summary proceedings, and it is equally true that they must of necessity be so ; for if the govern- ment were necessitated to take the cautious and tedious steps of the common law, in giving personal notice, making up regular pleadings, and having a trial by jury, judgment, and execution, it would cease to exist, for want of money to carry on its necessary operations ; loss of credit, and a total extinc- tion of the national faith, the basis of all regular governments, must be the inevitable consequence." ^ In the case of The State V. AUen,^ the court in commenting upon the lex terrce 1 9 Ga. 352. 2 McCarroll v. Weeks, 5 Hayw. (Tenn.) 246. See also Griffin ». Dogan, 48 Miss. 20; Gibson v. Mason, 5 Nev. 283, 301; Murray's Lessee v. Hoboken Land, etc. Co., 18 How. (U. S.) 272; all holding such summary proceedings constitutional. a 2 McCord (S. C), 56, 102 LAW OP THE LAND. § 101 of the Constitution, as applied to these summary tax laws, any : " We think that any legal process, which was originally founded in necessity, has been consecrated by time, and ap- proved and acquiesced in by universal consent, must be an exception to the right of trial by jury, and is embraced in the alternative, ' law of the land.' " And in Harris v. Wood,^ the Court of Appeals of Kentucky remark, that " Taxes were always recoverable (before the adoption of the Constitution), not only without a jury, but even without a judge, and the assessment of ministerial officers has been made to operate as an execution on the citizen, and the collector could distrain, etc." The same general doctrine has been asserted in other cases.2 § 100. " It is undoubtedly a principle of natural justice, that every person shall have an opportunity of being heard before he is condemned ; and to a hearing every taxpayer is entitled, but not before the ministerial officers of the law. They act at their peril in selling the land of the person assessed, where the taxes have been paid, or where they have not strictly com- plied with the law of the land; and he acts at his peril in determining the question whether he will redeem or contest the validity of the sale. If he adopts the latter course, then, and not till then, is he entitled to be fully heard in his de- fence, in the judicial tribunals of the country." ^ § 101. Thus it will be seen that all of the cases concede that the summary exercise of this power is against the spirit of the Constitution, but defend it upon the ground of imme- morial usage and state necessity. But, to use the emphatic language of the Supreme Court of Missouri, in the case above cited, " This very necessity begets another necessity, that in the execution of such a power the law shall be strictly and punctiliously complied with in all of its requirements." Be- 1 6 T. B. Mon. 641, 643. " Doe d. Gladney v. Devours, 11 Ga. 79 ; Morton v. Reeds, 6 Mo. 64 ; Bergen v. Clarksou, 6 N. J. Law, 352; Livingston's Lessee v. Moore, 7 Pet. (U. S.) 469. See re New York Prot. Epiac. Pub. School, 31 N. Y. 574; Griffin v. Mixon, 38 Miss. 424. » Willard v. Wetherbee, 4N. H. 118. 103 § 102 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. sides, so cautious are the courts in cooflning the taxing power within the bounds of " state necessity," that they will never permit the enforcement of a penalty, or double tax, in a summary manner, under the " vague and indefinite pre^ tence of taxation." Taxation includes the power to col- lect, in a summary mode, the amount levied, from the necessity of the case. This arbitrary but indispensable power must be used only to the extent absolutely demanded by the public necessities, and never abused by applying it to the purposes of penal enactments, and under the guise of taxation, to impose penalties which are to be enforced without recourse to the ordinary tribunals. The Constitution protects the citizen from all judgments against his person or property, otherwise than by a regular jury trial, as heretofore accus- tomed. Now, the only difficulty in enforcing this guarantee is to distinguish between a tax and a penalty. That is a tax which bears equally upon the whole community ; but that which is added to the burden of one citizen because of his failure to list his land for taxation, called " dooming," and the double and triple tax levied upon him by reason of his neglect to pay his tax when due, can in no proper sense be termed taxes ; they are, in fact, penalties. § 102. Judge Richardson, in State, ex rel. Carter, v. Burger,^ says, " It is admitted that under this wise, protective provision, ' law of the land,' if the alleged tax shall amount to a penalty for some infraction of the law, the tax collector cannot by his authority assess the penalty under the name of a tax ; for if it is a penalty, a jury must decide upon the supposed infraction before the penalty can be inflicted." In Scammon v. Chi- cago,'^ it is said per curiam, " That the legislature may provide for the recovery of reasonable costs either by a percentage on the amount of the recovery, or by fixing specific sums in a bill of items, there can be no doubt." " One of the objects in giv- ing costs is to cover expenses incurred in prosecuting a suit 1 1 McMuU. (S. C.) 420. See Scott ». Watkins, 22 Ark. 556, 566. = 44 111. 269, 278 J Clayton v. Chicago, 44 111. 280; Bristol v. Chicago, 22 m. 587. See, however, Lacey v. Davis, 4 Mich. 140, 157; High v. Shoemaker, 22 Cal. 363, 370, which seem to'support a contrary opinion. 104 EQUALITY SECUEED BY CONSTITUTIONAL PROVISIONS. § 103 for the fecovery of the demand. Hence it is reasonable that the delinquent taxpayer should in some mode be required to meet the expense incurred in prosecuting a suit for the recov- ery of the amount which remains delinquent, and the same is equally true of unpaid special assessments. That the legisla- ture may authorize the courts to impose and render a judg- ment for such a penalty, we have no doubt ; but we do not believe that such a power can be conferred upon a mere ministerial officer without an opportunity to be heard by the taxpayer. § 103. Equality secured by Constitutional Provisions. — The Constitutions of Arkansas, California, (Jeorgia, Illinois, Indi- ana, Maine, Minnesota, Nebraska, Nevada, Ohio, South Caro- lina, and Tennessee, contain provisions intended to secure the equality of taxation and the taxing of property according to its value. In Alabama, Colorado, Iowa, Kansas, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Hampshire, New Jersey, North Carolina, Oregon, Penn- sylvania, Virginia, and West Virginia, there are also consti- tutional provisions aiming at equality and uniformity. The lawyer should carefully examine the constitution of the State under whose law his case may arise, and the decisions under it.i The points of most frequent occurrence are, that a general * Alabama. — Daughdrill b. Insurance Co., 31 Ala. 91; Mobile ». Stonewall Insurance Co., 53 id. 571 ; McCaskell v. State, Id. 510; Perry Co. V. Railroad Co., 65 id. 391 ; Board of Assessment v. Alabama Central R. Co., 59 id. 551; Clark u. Mobile, 67 id. 217. Arkansas. — Fletcher v. Oliver, 25 Ark. 289; McGehee v. Mathis, 21 id. 40. California. — MeCoppin v. McCartney, 60 Cal. 367; People v. Townsend, 56 id. 633; Barton v. Kalloch, Id. 95; San Francisco v. Spring, etc. Works, 54 id. 571 ; People v. Latham, 52 id. 598; Wilson v. Supervisors, 47 id. 91 ; People v. Whyler, 41 id. 351 ; Savings Society v. Austin, 46 id. 415; Chambers v. Satterlee, 40 id. 497; People v. Black Diamond Coal Co., 37 id. 54; Beals v. Amador Co., 35 id. 624; People ». Gerke, Id. 677; People v. McCreery, 34 id. 432; Walsh v. Mathews, 29 id. 123; Emory v. San Francisco Gas Co., 28 id. 345; Sacramento v. Crocker, 16 id. 119. Colorado. — Gunnison Co. v. Owen, 7 Col. 467. Georgia. — Davis v. Macon, 64 Ga. 128; Johnston v. Macon, 62 id. 105 § 103 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER, requirement of uniformity, or taxation by value, will not pre- 645; CutlifE v. Albany, 60 id. 597; Decker v. McGowan, 59 id. 805; Goodwin v. Savannah, 53 id. 410; Rome v. Mc Williams, 52 id. 251; Home Insurance Co. v. Augusta, 50 id. 530; Bohler ». Schneider, 49 id. 195; Burch «. Savannah, 42 id. 596; Livingston ». Albany, 41 id. 21. Illinois. — Braun v. Chicago, 110 HI. 186; Timm v. Harrison, 109 id. 593; Home Insurance Co. o. Swigerl^ 104 id. 653; People v. Sol- diers' Home, 95 id. 561 ; Walker v. Springfield, 94 id. 364 ; Chicago, etc. R. Co. V. Siders, 88 id. 320; Law ». People, 87 id. 385 ; Ramsey v. Hoeger, 76 id. 476; Cooper v. Ash, Id. 11; Sherlock o. Winnetka, 68 id. 532; Primm v. Belleville, 59 id. 142 ; Madison Co. v. People, 58 id. 456 ; Hun- saker v. Wright, 30 id. 148; O'Kane v. Treat, 25 id. 458; People v. Worthington, 21 id. 173; Trustees v. McConnell, 12 id. 138. Indiana. — Loftin ti. National Bank, 85 Ind. 341 ; McDougal v. Brazil, 83 id. 211; Warner v. Curran, 75 id. 309; Kent v. Kentland, 62 id. 291; Richmond v. Scott, 48 id. 568 ; Bright v. McCuUough, 27 id. 223; Louis- ville, etc. R. Co. V. State, 25 id. 177; King u. Madison, 17 id. 48; Connersville v. State Bank, 16 id. 105; Anderson v. Kerns Draining Co., 14 id. 199; Bank ». New Albany, 11 id. 139; La Fayette v. Jenners, 10 id. 70; Aurora v. West, 9 id. 74. Iowa. — Cook v. Burlington, 59 Iowa, 251; Dubuque ». Chicago, etc. R. Co., 47 id. 196; Salter v. Burlington, 42 id. 531; Iowa Homestead Co. V. Webster Co., 21 id. 221. Kansas. — Ide v. Finneran, 29 Kan. 569; Atchison, Topeka, and Santa Fe R. Co. v. Francis, 23 id. 495; Leavenworth v. Booth, 15 id. 627; Francis v. Railroad Co., 19 id. 303; Ottawa Co, v. Nelson, Id. 234; Gulf R. Co. V. Morris, 7 id. 210. Kentucky. — Marshall v. Donovan, 10 Bush, 681. Louisiana. — New Orleans v. Canal and Navigation Co., 36 La. Ann. 396 ; New Orleans v. Sugar Shed Co., 35 id. 548; New Orleans v. National Bank, 34 id. 892 ; New Orleans v. Orphan Asylum, 33 id. 850 ; New Orleans o. Canal Bank, 32 id. 104; New Orleans .(. Dunbar, 28 id. 722; New Orleans v. St. Charles, etc. Co., Id. 498; State v. Endom, 23 id, 663; Sims v. Jackson, 22 id. 440; New Orleans v. Turpin, 13 id, 56; Municipality v. Dubois, 10 id. 56 ; New Orleans v. Bank, Id. 735. Maine. — State ». Western Union, 73 Me. 518; Dyar v. Farmington, 70 id. 515; Portland v. Water Co., 67 id. 135; Brewer Brick Co. v. Brewer, 62 id. 62. Maryland. — State v. Philadelphia, etc. R. Co., 45 Md. 361; State V. Cumberland, etc. R. Co., 40 id. 22; Commissioners v. Alleghany Co., 20 id. 449. Massachusetts. — Connecticut Mutual Life Insurance Co. v. Com- monwealth, 133 Mass. 161; Fall River v. Commissioners, 125 id. 567; Cheshire v. Commissioners, 118 id. 386; Merrick v. Amherst, 12 Allen, 498. 106 EQUALITY SECURED BY CONSTITUTIONAL PROVISIONS. § 103 elude a tax on a particular business, if all the members of that Michigan. — Van Horn v. People, 46 Mich. 346 ; Jones v. Water Commissioners, 34 id. 273; Williams v. Detroit, 2 id. 560. Minnesota. — Faribault v. Misener, 20 Minn. 396; McCormick v. Fitch, 14 id. 252 ; Comer v. Folsom, 13 id. 219 ; Sanborn v. Rice, 9 id. 258. Mississippi. — Murray v. Lehman, 61 Miss. 283; Mississippi MiUs v. Cook, 56 id. 40; Smith v. Aberdeen, 25 id. 458. Missouri. — State v. Hannibal, etc. K. Co., 75 Mo. 208; American Union Express Co. v. St. Joseph, 66 id. 675; Glasgow v. Bouse, 43 id. 479; Wells v. Weston, 22 id. 384. Nebraska. — Miller v. Hurford, 13 Neb. 13; Miller v. Hurford, 11 id. 377 ; State ». County Commissioners, 4 id. 537. New Hampshire. — State v. United States & Canada Express Co. 60 N. H. 219. New Jersey. — Stratton ii. Collins, 43 N. J. L. 562; State v. Run- yon, 41 id. 98; Trustees of Schools v. Trenton, 30 N. J. Eq. 667. Nevada. — Robinson ex parte, 12 Nev. 263. North Carolina. — Worth v. Wilmington, etc. R. Co., 89 N. C. 291; Hewlett v. Nutt, 79 id. 263; Gatlin v. Tarboro, 78 id. 119; London V. Wilmington, Id. 109 ; Cobb v. Elizabeth City, 75 id. 1 ; Brodnax v. Groom, 64 id. 244. Ohio. — Fields v. Commissioners, 36 Ohio St. 476 ; Western Union Telegraph Co. v. Mayer, 28 id. 521 ; Baker v. Cincinnati, 11 id. 534 ; Bank of Columbus V. Hines, 3 id. 1 ; Zanesville v. Richards, 5 id. 590. Oregon. — Wetmore v. Multnomah Co., 6 Or. 463. Pennsylvania. — Coatesville Gas Co. v. Chester County, 97 Pa. St. 476; Indiana County «. Agricultural Society, 85 id. 357; Lehigh Iron Co. V. Lower Macungie, 81 id. 482 ; Kittanning Coal Co. v.. Commonwealth, 79 id. 100; Northampton County v. Lehigh Coal, etc. Co., 75 id. 461; Weber e. Reinhard, 73 id. 370. South Carolina. — State v. Columbia, 6 S. C. 1 ; State v. Railroad Corporations, 4 id. 376. Tennessee. — Chattanooga R. Co., 7 Lea, 561; Taylor v. Chandler, 9 Heisk. 349. Texas. — Western Union Telegraph, Co. v. State, 55 Tex. 314; Blessing u. Galveston, 42 id. 641 ; Roundtree o. Galveston, Id. 612. Virginia. — Virginia & Tennessee R. Co. v. Washington County, 30 Gratt. 471 ; Langhorne v. Robinson, 20 id. 661 ; Slaughter v. Common- wealth, 13 id. 767; Gilkerson v. Frederick Justices, Id. 577. West Virginia. — Chesapeake & Ohio Co. ». Miller, 19 W. Va. 408; Douglass V. HarrisviUe, 9 id. 162 ; Franklin Insurance Co. v. State, 5 id. 349. Wisconsin. — Wisconsin Central R. Co. v. Lincoln County, 57 Wis. 137; Wisconsin Central R. Co. v. Taylor County, 52 id. 37; Marsh 107 § 106 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. business are equally taxed ; ^ that provisions for uniformity throughout the state apply only to state taxes.^ The follow- ing sections (104-109) show the manner in which the consti- tutional provisions are construed. § 104. In Commonwealth v. People^s 5 cts. Savings Bank^ the question was whether a tax on savings banks, based on the average of their deposits, was within the constithtional power to levy " reasonable duties " on goods, wares, commodi- ties, etc. The court held the law valid, remarking that per- fect equality was impossible of attainment, and " it is only where statutes are passed which impose taxes on false and unjust principles, or operate to produce gross inequality, so that they cannot be deemed in any just sense proportional in their effect on those who are to bear public charges, that courts can interpose and arrest the course of legislation by declaring such enactments void." § 105. In Calif ornia, it is held that the constitutional re- quirement of equality and uniformity applies only to general taxation, and not to special assessments for local improve- ments. There would be manifest injustice in levying a gen- eral tax for a local improvement which produces a great benefit to the owners of property in its vicinity, but lessens perhaps at the same time the value of property at a distant part of the city. A few should not be taxed for the benefit of the whole, nor should the whole be taxed for the benefit of the few. On these grounds, street assessments on adjacent owners were held not invalidated by the Constitution.* § 106. The Iowa Constitution, § 2, Art. 8, provides that " The property of all corporations for pecuniary profit shall be subject to taxation, the same as that of individuals." The legislature taxed railroads by a general law, providing that V. Supervisors, 42 id. 502; Tenny v. Lenz, 16 id. 566; Fire Depart- ment V. Helfenstein, Id. 136; Carter v. Dow, Id. 298; Ecowlton v. Supervisors, 9 id. 410. 1 Cutliff V. Albany, 60 Ga. 597; Washington v. State, 13 Ark. 752. = Louisiana o. Pillsbury, 105 U. S. 278; New Orleans v. Klein, 26 La. Ann. 493. = 5 Allen, 428 (1862). * Burnet v. Sacramento, 12 Cal. 84 (1859). 108 EQUALITY UNDER CONSTITUTIONAL PROVISIONS. § 108 the shares of the various municipalities through which any rail- road might run, in the fund resulting from the taxation of said companies, should be proportioned to the miles of road-bed in each, the property of the company being valued at the same rates as individual property. This was contested as an unjust discrimination against those towns in which the machine-shops, etc., were located, such property not being assessed for mu- nicipal purposes, " the same as that of individuals." The court held that the true meaning of the Constitution was that all property, corporate or individual, should be equally burdened with taxation, as nearly as practicable ; but that exact equal- ity was impossible of attainment, and that railroads, banks, manufacturing companies, and each of the numerous agencies of business constantly coming into use require different ma- chinery for the purposes of taxation, and the legislature may adopt different methods of ascertaining values appropriate to the peculiarities of the property.^ § 107. " Reasonable and proportional" as applied to taxes by the Constitution, do not mean that every assessment is to be on the whole property of the State, or in proportion to the estate which each person possesses. It is within the power of the legislature, for a public purpose, to authorize a special tax on a particular town peculiarly benefited, as the tax of $50,000 on the town of Amherst, authorized by the le^slature for the Agricultural College to be founded there.^ § 108. In Bradshaw v. Omaha,^ the court held, (1) that al- though there were no express provisions in the State constitu- tion limiting the power of taxation, yet it was restrained by ihe general provision that private property should not be taken for public use without compensation ; (2) that the ques- tion whether agricultural lands included within the limits of a city are subject to city taxes, is a judicial question ; (3) that where the owner derives no benefit from the city organization, does not divide his land into lots, nor ask for streets or 1 Dubuque o. C. D. & M. R. Co., 57 Iowa, 199 (1877). * Merrick v. Amherst, 12 Allen, 501 (1866). See Freeland v. Hastings, 10 id. 570; Dorgan v. Boston, 12 id. 223 (1866), street assessment. 8 1 Neb. 16 (1871). 109 § 111 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. grades, and his land is at the distance of a mile or more from the settled parts of the city, and the quiet enjoyment of the property does not require a city police, legislation subject- ing him to city taxation infringes the constitution by tak- ing private property for the use of others without just compensation. § 109. The Missouri Constitution declares that " all prop- erty subject to taxation ought to be taxed in proportion to its value ; " and it is held that the ought means must, and that the legislature cannot exempt property from taxation nor com- mute the payment of taxes.^ § 110. Limitation of the Taxing Power by Contract. — By treaty the power of taxation may be relinquished or modified, or by compact between the United States ^ and a State, or by contract of a State with a private corporation.^ The charter of a private corporation is a contract which the State cannot impair.^ The charter of a municipal corporation is not, how- ever, a contract ; such a corporation is a creature of the government. The government cannot contract with itself. There has been much dispute as to the power of a legis- lature to relinquish any portion of their sovereign power in the shape of binding exemptions or commutations ; * but it is well settled ^ now that upon sufficient consideration this may be done, the State having the right, upon payment of the value of the granted privilege, to resume its former power under the right of eminent domain. A municipal corporation cannot make a valid contract of exemption.^ § 111. By compact made between the Federal Grovernment and some of the new States it is expressly stipulated that bounty lands granted, or to be granted, by the United States for military services shall, while they continue the property of the soldier or his heirs, be exempt from taxation for the term of three years from the date of the patent;^ and that all 1 Life Association v. Assessors of St. Louis County, 49 Mo. 512 (1872). = §1H. » §§112-115. «§116- = See Chap. XXIX. » §117- ' In the People, ex rel Throop, v. Auditor General, 9 Mich. 134, it was held that this language being clear and unambiguous must be applied precisely according to its tenor, and cannot be held to mean three years 110 LIMITATIONS BY CONTRACT. § 114 lands sold by the United States shall be exempt from taxation for the period of five years from and after the day of sale. § 112. Where a hank charter stipulated for the payment to the State of four per cent on the dividends of the company, and reserved no power of taxation, it was held that any sub- sequent law imposing a greater burden upon the exercise of the privileges of the corporation was void as an impairment to contract.^ It must be noted that in this case the question was not upon the right to tax the bank's property. The new law taxed dividends, taxed the hvsiness of the bank for which four per cent had been agreed on as the consideration. There were also special circumstances clearly indicating that the legislature understood that the Commercial Bank was exempt. § 113. In Bank of Tennessee v. Stated the court held a char- ter stipulation " that in consideration of the privilege granted by this charter the bank agrees to pay to the State annually one half of one per cent on the amount of capital stock paid in by the stockholders, other than the State," to bar any fur- ther taxation of the bank, though there was no agreement not to tax, and the payment was not stated to be in lieu of taxes. The ground of the decision was that the State having agreed to allow the bank to exercise its privileges for a specified sum, could not increase that sum, and so vary the contract under the name of taxation or otherwise. We do not think the deci- sion sound. The payment of the sum named was in consid- eration of the corporate privileges, not in consideration of the protection afforded by the State to the property of the corpo- ration in common with the other property of the Common- wealth ; and equally with such other property the banks should be taxed, unless the legislature had clearly agreed to relinquish the right, which in this case it had not. § 114. The State does not lose its power of taxation by a from the location of the land ; and where lands thus exempt have been taxed, the Auditor General may be compelled by mandamus to reject the taxes thereon on the application of the owner. See also Fisher v. Wisner, 34 Iowa, 447. 1 State of Ohio v. Commercial Bank of Cincinnati, 7 Ohio, 128, 131 (1835). « 9 Yerg. 493. Ill § 115 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. charter that says nothing on the subject. The construction of these contracts is to be strict against the corporations and liberal in favor of the State. A bank can acquire no immu- nity under its charter except what is expressly and unequivo- cally given.i " The taxing power is an incident of the highest sovereignty. It is an essential part of every independent gov- ernment. . . . The wealth of men associated togeth^ is not less subject to taxation than if it were owned by individuals. . . . The State being in full possession of this power at the time of the contract in question, it is impossible to see how she could have lost it by not bargaining with the bank for permission to , keep it." ^ All property, a corporate franchise as well as any other kind, is, prima facie subject to taxation to bear its share of the expense of protecting it. He who claims that his prop- erty is exempt must show clearly his title to such immunity .^ § 115. In Shelly v. Bank * the court refused to follow a decision of the United States Supreme Court to the effect that the charter of a bank was a contract as to rate of taxation to which the corporation should be subjected. And in Mott v. Pennsylvania Railroad Company,* the court held that no legis- lature has power to alienate any of the rights of sovereignty, such as that of taxation, and any contract to that effect is void. But it is settled now beyond dispute by the repeated decisions of the United States Supreme Court, that upon suffi- cient consideration a legislature may agree to fix a certain rate or to exempt property from taxation temporarily or forever, and such contract will be binding on subsequent legislatures. It does not take virtue out of the Commonwealth, for the State must receive an equivalent, or what is deemed an equivalent, or there is no contract. And at any time the State may re- sume its power of taxation by the exercise of the right of eminent domain, rendering back an equivalent for the future 1 Bank of Pennsylvania v. Commonwealth, 19 Pa. St. 144 (1852). 2 Id. 152. 8 Bridge Proprietors v. State, 21 N. J. L. 386 (1848) ; Passaic & Hack- ensaek Bridges v. State, 22 id. 593 (1849) ; State v. Commercial Bank of Cincinnati, 7 Ohio, 126 (1835). * 9 Ohio St. 609, « 30 Pa. St. 9. 112 LIMITATIONS BY CONTRACT. § 117 exemption thus destroyed.^ The charter of a municipal cor- poration is not a contract, and maj be altered or repealed at the will of the legislature.^ § 116. Commutation. — The legislature may commute taxes, i. e., may allow a company to pay a certain amount in lieu of all taxes.^ But the legislature cannot authorize a towfi to commute a road tax in lieu of all county road taxes; the commutation would not go to the fund entitled to the tax. Such commutations must operate with fairness and uniform- ity on the taxpayers of the corporation with which it is made.* § 117. Contract hy a Municipality for Commutation, — The city of Hannibal made a contract with the Hannibal & St. Joseph Railroad Company to receive $700 a year in full satis- faction of all city taxes. It was held that this was a void contract. In the first place, a city can make no contracts ex- cept where power is granted in express terms, or is necessarily implied, or clearly incident to those expressly granted, or es- sential and indispensable to the declared objects of the corpo- ration. In the second place, " though municipal corporations may make such contracts as their respective charters author- ize, they cannot so contract as to surrender or embarrass their legislative or governmental powers, or prevent the full and complete performance of their public duties, — duties which result from such powers, which are conferred upon muni- cipal corporations for public purposes and for the public good. . . . Among the most valuable and important of those public trusts and powers is that of taxation. ... No argument would 1 See on this subject McGee ». Mathis, 4 Wall. 143; Chesapeake & Ohio R. Co. V. Miller, 114 U. S. 176 (1884) ; Morgan v. Louisiana, 93 id. 217; Humphrey v. Pegnes, 16 Wall. 244 (1872); Delaware R. Tax, 18 id. 206 (1873) ; Pacific R. Co. v. Maguire, 20 id. 36 (1873) ; Union Bank of Tennessee v. State, 9 Yerg. 490 (1836); O'Donnell v. Bailey, 24 Miss. 386 (1852); University ». People, 99 U. S. 309 (1878). 2 Meriwether v. Garrett, 102 U. S. 511 (1880). » Gardner v. State, 21 N. J. L. 557 (1845). * Cooper V. Ash, 76 111. 11 (1875). The government may, however, divide the county into road districts, and enact that each town shall take care of its own roads. VOL. I. — 8 113 § 118 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. seem necessary to show that the same principle which forbids the absolute cession by a municipal corporation of the power of taxation over any, given subject-matter, likewise forbids that which approximates thereto. . . . Besides, the idea of tax- ation imports the equality of apportionment and assessment upon all property. It is this which distinguishes taxation from arbitrary exaction. And it cannot be doubted Ihat the exemption of the property of an individual or of a private cor- poration from taxation, either in whole or in part, casts an unusual and inequitable burden on the property of those who have not been thus graciously favored. In Maine, whose con- stitutional provisions, like our own, require equality and uni- fdrmity in levying taxes, it is held that even the legislature cannot confer a general power on a town to exempt. To have uniformity of taxation, the imposition of and the exemption from taxation must be by one and the same authority, — that of the legislature ; " ^ otherwise a certain kind of property might be exempt in one town and not in another. § 118. Delegation of the Power to tax. — A State may dele- gate to subordinate jurisdiction, municipal or judicial, the right to take private property for public use, when in their opinion public welfare demands it ; ^ and the general rule that the power of taxation cannot be delegated has an exception in the fact that a State can confer this power on municipali- ties created by it,' but the delegation must be clear and unmis- takable. Power to levy school taxes may be vested in school commissioners.* But in New Jersey and Alabama the legis- lature cannot delegate the power of taxation to a private corporation, such as a city fire department or a school board, but only to a municipal corporation, or political division of 1 State V. Hannibal & St. Joseph R. Co., 75 Mo. 210, 211 (1881). » Alexander o. Baltimore, 5 Gill, 383 (1847). » Baldwin v. City Council, 53 Ala. 437 (1875); Slack ». Ray, 26 La. Ann. 674 (1874) ; Logansport v. Seybold, 59 Ind. 227 (1877) ; Butler's Appeal, 73 Pa. St. 448 (1878); St. Louis v. Laughlin, 49 Mo. 559 (1872); Comer v. Folsom, 13 Minn. 221 (1868). * Bull V. Read, 13 Gratt. 99, 100 (1855); Kinney v. Zimpleman, 36 Tex. 554 (1871). 114 DELEGATION OF THE TAXING POWEE. § 119 the state.^ On the question whether the legislature can trans- fer to a municipality a power of exemption in its discretion, the cases are in conflict.^ A municipality cannot sub-delegate its taxing power.^ § 119. Exemption hy Mumieipal Corporation. — The legis- lature cannot transfer to a town the power to determine what property shall be subject to taxation and what shall be exempt. It is essential to all just taxation that it be levied with equality and uniformity, and granting the power to exempt is granting the power to produce inequality. It is agreed that the legislature cannot authorize a town to raise money by taxation to give to private parties, nor to take A.'s property to confer it on B. ; yet " the remission of a tax by a vote of the town is in substance and effect the same as a gift. What matters it to the plaintiffs or the defendants whether the town votes to give $309.75 to the plaintiffs, or to exempt their property from its just and proportionate tax, and assess the amount of such exemption upon the remaining estates liable to taxation ? " * On the contrary, in Georgia, where a city had power to tax not to exceed one ^er cent upon all the property within its limits subject to taxation by the laws of the State, the court held that the city could exempt some property altogether; that a power to tax all was not a duty to tax all, any more than a power to tax to the extent of one per cent negatived a less tax, nor any more than the power to take up horses, mules, cattle, hogs, goats, and dogs, or other domestic animals, run- ning at large, would require action as to every kind of animal in order to prohibit one kind. Under a general power to tax all, the legislature may exempt; when they delegate the power 1 State V. Smith, 11 At. Rep. 321 (N. J. 1887); Schultes v. Eberly, 2 So. Rep. 345 (Ala. 1887); 82 Ala. 242. 2 § 119. « § 120. * Brewer Brick Co. v. Brewer, 62 Me. 72 (1873) ; Famsworth County V. Lisbon, 62 Me. 451 (1873). County commissioners cannot discrimi- nate as to the character of the property to be subjected to taxation; that is a question for the legislature. Kevada v. Gracey, 11 Nev. 235 (1876). 115 § 120 FUNDAMENTAL PRINCIPLES CONTROLLING TAXING POWER. to tax all to the city, the city has the power just as the legis- lature had it, unless there are words of restriction.^ § 120. A Municipality having the Right to tax cannot dele- gate it. — Such exercise of discretion rests with the city as a corporation, and cannot be transferred by it, unless such power is expressly given by statute. The citizens can be burdened only by an actual exercise of the judgment of the corporate body .2 Power delegated to a municipality must be exercised in strict conformity to the terms of the delegation.^ A city council cannot delegate a duty plainly and expressly devolved upon them to the mere discretion and caprice of a single indi- vidual. As where a city council had power to construct sew- ers " of such dimensions as may be prescribed by ordinance," it was held that an ordinance authorizing the construction of a sewer On the plaintiff's premises of such dimensions as may be deemed requisite by the city engineer was void, and the exercise of this power by the engineer founded no obligation to pay taxes to cover the expense, and that a subsequent act of the legislature curing the transaction was void under the Missouri Constitution as retrospective.^ Some discretion as to details must, of course, be left to the officers ; and the ordinance may lack desirable precision and still be valid, if there is a substantial exercise of discretion by that body in which the trust is reposed.^ 1 Athens ». Long, 54 Ga. 331 (1875). " Davjs V. Read, 65 N. Y. 567 (1875) ; St. Louis v. Clemens, 43 Mo. 395; 52 id. 138 (1873); Sheehan v. Gleeson, 46 Mo. 100 (1870); State v. Koster, 38 N. J. L. 309 (1876). » Thompson v. Schermerhorn, 6 N. Y. 92 (1851). See note 2. * St. Louis V. Clemens, 43 Mo. 395; 52 id. 138 (1873). 6 Sheehan v. Gleeson, 46 Mo. 104 (1870). 116 CHAPTER HI. OF THE NATURE OF THE POWER TO SELL LAND FOR THE NON- PAYMENT OF TAXES, AND OP THE STRICTNESS REQUIRED IN SUCH SALES. § iSl. Sommaiy of the Subject. — The power to sell land for non-payment of taxes is not a common-law power, but arises entirely from statute,^ and therefore exists only when the conditions prescribed by the statute are fulfilled ; and since such statutes are penal, and the proceedings under them ex parte, summary, executive rather than judicial, and an in- fringement of the rights of property only tolerated by reason of necessity, great strictness and exactness in following the law is required in favor of the land-owner. All acts pre- scribed by the statute must be performed in the place, man- ner, form, and time therein named ; every provision in which the owner can possible/ have an interest must be strictly obeyed, or the resulting tax title will be void.^ Nor can the purchaser complain of this rule ; the terms upon which a valid title can be had are set forth in the law, and it is his duty to inquire if those terms have been fulfilled ; he is bound to see to it (as against the land-owner) that the official agents of the govern- ment have acted according to their authority ; his ignorance of a defect will not protect him, the rules of negotiable paper do not apply to tax titles, the purchaser gives but a fractional consideration, the equities are against him.* The govern- ment, however, has a right to complain if mere technical defects or any failures to conform to the law which do not prejudice the owner are allowed to interfere with the collec- tion of what is justly due it. The object should be to protect the owner in all his rights, but not to enable him to secure » §§ 122-125. ' § 126. « §§ 126, 162, and Chap. XL., Onus. 117 § 123 NATURE OP THE POWER TO SELL LAND. more than his rights or unnecessarily embarrass the state. If the provision of law that is violated was not intended for the benefit of the owner, he should not complain. The pro- ceedings in case of such violation are, so far as the owner is concerned, identical with proceedings in exact conformity to law. Overturning tax titles for technical defects must not be carried too far, or land-owners will be encouraged not to pay their taxes, and people will fear to buy at a tax sale. Too strict a construction will defeat the object of the law ; a cor- rect balance between the rights of the owner and of the govern- ment should be sought, and neither one neglected.^ The degree of strictness required by the various courts is widely different, according as the judges are more influenced by the arguments growing out of the desire to protect the owner, or by those put forth by the government.^ § 122. Involuntary Alienations and the Common Law. — Ac- cording to the strict rules of the common law, the only authority which a stranger could exercise over an estate in land was a power of selling, leasing, or incumbering it. The power was voluntarily created by the owner. It was always a naked power, and general or special according to the will of the donor. Involuntary alienations were contrary to the policy of the feudal system, and consequently no estate could be di- vested by mere operation of law, and against the wiU of the owner, except in the single instance of its forfeiture for high treason ; and then the power was exercised through the inter- vention of the judicial tribunals. § 123. From the nature of voluntary alienations, and the mode of effecting them, — by feoffment and livery of seisin, — it is very certain that they did not admit of the annexation to them of powers of appointment and revocation. The strict- ness of those times would not countenance the apparent re- pugnancy of giving or selling an estate absolutely to another, and yet reserving to the feoffor the privilege of recalling the estate, or vesting it in another, without a new livery. Such a transaction was not consistent with that public notoriety 1 § 126 et seq. 2 § 162 et seq. For examples through the book see Index, " Strictness." 118 INVOLUNTARY ALIENATIONS AT COMMON LAW. § 124 which was then deemed a necessary circumstance in the alienation of property.^ The only means which the feoffor had of retaining any authority over land, after its alienation, was by annexing a condition to the charter of feoffment, that upon the tender of a certain sum of money, or the perform- ance of any other act by the feoffor, or his heirs, as stipulated between the parties, the feoffor should have a right of re- entry ; so that the estate which was divested by the feoffment and livery of seisin might revest in the feoffor, by a strict performance of the condition, and a re-entry upon the land.^ But it will be remembered that these conditions were re- garded with jealousy by the courts, and a strict compliance with their terms was invariably exacted.^ When, however, the doctrine of uses was introduced, this difiBculty no longer existed. Though such shifting of estates was repugnant to the nature of common-law conveyances, yet it was perfectly agreeable to the principles and intent of an equitable use, which had for its main object the enabling of owners to dis- pose of their estates in the manner most agreeable to them- selves.* On the enactment of the statute of uses, powers of revocation .and appointment grew into a system, and thus changed the entire policy of the common law. Such powers were exercised either by the owner of the fee, or of some in- terest carved out of it, or by a stranger to the estate. In the first case the power was regarded as coupled with an interest, in the latter it was held to be a mere naked authority. Such was the general nature of common-law powers. § 124. In modern times, when a more free and unrestricted power of alienation took place, and the interests of mankind required that the real property of the citizen should contribute to the common burdens of the community, and be subjected to the payment of his debts, involuntary alienations became frequent. The power to sell and convey the estate to satisfy the charge thus created was usually vested in some court or public officer. In this manner a class of powers, to which the common law was an utter stranger, have sprung into ^ Sugden on Powers, ch. 1, § 1. ' Powell on Powers, 1, 2. " Sugden on Powers, ch. 1, § 1. * Powell on Powers, 2. 119 § 125 NATDEE OP THE POWER TO SELL LAND. existence, but which, nevertheless, are controlled in their exe- cution by the principles of that law. To that law we are therefore compelled to look for analogies in the construction of all statutes which confer power upon strangers, to be ex- ercised over the landed estates of the country. § 125. The Antbority of the Officer to sell is Naked, Statu- tory, and Special. — The power to impose a tax upon real estate, and sell it where there is a failure to pay the tax, is a high prerogative, and should never be exercised in doubtful eases.^ It is a naked power, which in this instance may be de- fined to be a power operating upon an estate, in which the officer who executes it has no manner of interest, and over which he has no control other than that which the law has expressly dele- gated to him.^ It is a statutory power, depending alone upon the will of the sovereign, and not upon the consent of the owner. The statute creates the power, selects the agent to execute it, and prescribes the formalities which shall attend its execution.^ Judge Sharkey thus defines a statutory power : " A power derived exclusively and directly from a statute, without any other agency, or the action of any judicial tribu- nal." * It is a special as contradistinguished from a general authority. The officer to whom it is delegated has no general power to sell land for the taxes charged against it, but simply a special one to sell in the particular case mentioned in the stat- ute creating the power.^ It will therefore be perceived that the 1 Beaty v. Knowler's Lessee, 4 Pet. (U. S.) 152; Sharp v. Speir, 4 Hill (N. Y.), 76. ^ Williams v. Peyton's Lessee, 4 Wheat. (U. S.) 77 ; Clarke v. Courtney, 5 Pet. (U. S.) 319; Varick v. Tallman, 2 Barb. (N. Y.) 113; Waldron v. M'Comb, 1 Hill (N. Y.), Ill; Sharp «. Speir, 4 id. 76; Hubbelltj. Weldon, Hill & D. (N. Y.) 189; Minor u. Natchez, 4 Smedes &M. (Miss.) 602, 631, Doe d. Hodge v. Wilson, 12 id. 498; Taylor v. Galloway, 1 Ohio, 232; Allen V. Smith, 1 Leigh (Va.), 231, 248; Jesse v. Preston, 5 Gratt. (Va.) 120. Doughty V. Hope, 3 Denio (N. Y.), 594; Varick t>. Tallman, 2 Barb. (N. Y.) 113; Sharp ». Speir, 4 Hill (N. Y.), 76; Minor i: Natchez, 4 Smedes & M. (Miss.) 602, 630, 631; Doe d. Hodge v. Wilson, 12 id. 498. * Natchez v. Minor, 10 Smedes & M. (Miss.) 246. s Williams v. Peyton's Lessee, 4 Wheat. (U. S.) 77; Varick v. Tail- man, 2 Barb. (N. Y.) 113, 115, 116; RonkendorfE v. Taylor's Lessee, 4 Pet. (U.S.) 349; PoweU v. Tuttle, 3 N. Y. 396, 401; Sherwood ». Reade, 120 STKICT CONFORMITY TO STATUTE NECESSARY. § 126 officer intrusted with the power of sale exercises a naked, statu- tory, and special authority, depending alone upon the high pre- rogative of the State and the letter of the law for its support. § 126. strict Conformity to the Statute is necessary.^ — The proceedings are adverse, ex parted summaiy,^ executive rather than judicial,* special,^ and statutory,' and have nothing to stand upon hut the statute, from which if they vary they can lay no claim to its support, and are therefore wholly without support.^ The purchaser claims under the statute ; by that let his pretensions be judged.* The consideration is grossly inadequate ; ^ the maxim caveat emptor ap- plies with great force to the purchaser.^" If the forms of the law can be at all departed from, a dangerous power is put in the hands of the officers, and great difficulty will be found in deciding how far departure may go. If at all, why not to any distance ? The officer sells what he does not own and has no interest in and no authority over except as agent of the law. He is made agent for this purpose by certain pre- scribed steps, and if a single condition is absent, his agency fails. Moreover, the law is penal in its nature, and must be strictly construed.^^ Such are the arguments that have been used in favor of requiring strict conformity to the law in order to give rise to a valid tax title. Many analogies of the law are in harmony with this reasoning.^^ We shall see, however, that there is a reasonable limit beyond which if the courts go in their tendency toward strictness the result is to defeat justice and the real object of the law. Perfection is impossible with human agencies. The substance of things and the spirit of the law must be looked to, or the interests of society will be imprisoned in unforeseen subtleties of grammar and lan- guage. The substance and spirit of the matter is, first, that 7 Hill (N. Y.),431; Striker v. KeUy, 2 Denio (N. Y.), 323, 330; James's Lessee v. Gordon, 1 Wash. C. C. (U. S.) 333; Minor v. Natchez, 4 Smedes & M. (Miss.) 602, 627, 628; Fitch v. Pinokard, 5 111. 69; Polk v. Rose, 25 Md. 153 ; Banner v. Eastman, 50 Barb. (N. Y.) 639; MoDermott v. Scully, 27 Ark. 226. I §§ 127-161. " §§ 130, 131, 159. » § 131. * § 129. « § 128. • § 125. ' § 138. 8 §§ 134, 135, 138, 139-144. ^ §§ 134, 135. " § 133; see also Chap. XL., Onus. " § 136. « §§ 145-161. 121 § 126 NATURE OP THE POWEE TO SELL LAND. property rights must be protected against unjust invasion by public officers as well as private wrong-doers, and that to this end every provision of law the performance or non-performance of which can affect the land-owner's interests should be sub- stantially complied with ; second, that the government has a right to its revenues, and that, subject to the proper securing of the rights of property against unjust invasion, the law should be construed with reference to securing the rights of the government to its just revenues, and mere technicalities or omissions or deviations from the law that cannot affect the owner should not be allowed to bury justice out of sight and render the collection of the revenues a farce. The rights of the owner and of the government should both be kept in mind, and substantial justice done to both. It is perfectly clear that if the technical arguments are pushed to their logical result, even as to provisions in .which the taxpayer is interested, the absurd result will be reached that the government cannot col- lect taxes. For example, the owner is interested that no property liable to taxation should be omitted from the list, for every omission increases his burdens ; but if every accidental or negligent omission is to vitiate the proceedings, it would be a rare list that could stand fire. A tax-list would be as frail as an average will. The execution of the law must 'necessarily be intrusted to men, — men who are liable to error ; and if mis- takes on the part of those attempting in good faith to perform their duties should vitiate the whole proceedings of assessment, etc., no tax could ever be collected ; some omissions or errors of calculation could be found in every list. Wherefore, though such errors sometimes increase improperly the burdens of taxation upon those included in the list, " the rule which holds the tax not thereby avoided is absolutely essential to the con- tinuation of the government." ^ " All those measures which are intended for the security of the citizen, for insuring an equality of taxation, and to enable every one to know with feasonable certainty for what he is taxed, and for what all those who are liable with him are taxed, are conditions prece- dent. . . . But many regulations are made by statute, designed 1 Weeks V. Milwaukee, 10 Wis. 262. 122 STRICT CONFORMITY TO STATUTE NECESSAEY. § 127 for the information of assessors and officers, and intended to promote method, system, and uniformity in the modes of pro- ceeding, the compliance or non-compliance with which does in no respect affect the rights of taxpaying citizens. These may be considered directory ; officers may be liable to legal ani- madversion, perhaps to punishment, for not observing them ; but yet their observance is not a condition precedent to the validity of the tax." ^ § 127. The validity of a tax sale depends upon the authority of the officer to sell, and upon the fairness of the transaction. It woujd be going too far to say that the officer selling land, with or without authority, could by his mere conveyance transfer the title of the rightful proprietor. He must act in conformity with the law from whence his power is derived, and the purchaser is bound to inquire whether he has so acted.2 It is therefore held to be a condition precedent to the passing of the title at such sales, that all of the proceed- ings of the officers who have anything to do with the listing and valuation of the land, the levy and collection of the tax, the advertisement and sale of the property, the return, filing, or record of the proceedings, whether the acts are to be per- formed before or after the sale, must be in strict compliance with the statute authorizing the sale.^ In the language of 1 Torrey ». Millbury, 21 Pick. 64, 67. * Stead's Executor v. Course, 4 Cranch (U. S.), 403; s. c. 2 PetCond. 151. The validity of acts touching the assessment, levy, and delinquency of taxes is determined under the laws in force at the time they were done; and the tax sale is governed by the law in force when it was made. Penu V. Clemans, 19 Iowa, 372. " Parker v. Rule's Lessee, 9 Cranch (U. S.), 64 ; Williams v. Peyton's Lessee, 4 Wheat. (U. S.) 77; Thatcher v. Powell, 6 id. 119; RonkendorfE V. Taylor's Lessee, 4 Pet. (U. S.) 349; Mason v. Fearson, 9 How. (U. S.) 248; Early r. Doe d. Romans, 16 id. 610; Moore v. Brown, 4 McLean C. C. (U. S.) 211; Schenck v. Peay, 1 Woolw. C. C. (U. S.) 175; Jude- vine V. Jackson, 18 Vt. 470; Pope v. Headen, 5 Ala. 433; Lyon v. Hunt, 11 id. 295; Scales v. Alvis, 12 id. 617 ; Blakeney v. Ferguson, 8 Ark. 272, 277; Thames Manufacturing Co. v. Lathrop, 7 Conn. 550; Brooks v. Rooney, 11 Ga. 423, 427 ; Garrett v. Wiggins, 2 111. 335 ; Doe d. Hill v. Leonard, 5 id. 140; Fitch v. Pinckard, Id. 69; Irving v. Brownell, 11 id. 402; Graves v. Bruen, Id. 437, 438; Lane v. Bommelmann, 21 id. 143; 123 § 127 NATURE OF THE POWER TO SELL LAND. Chief Justice Marshall, " That no individual or public oflElcer can sell and convey a good title to the land of another unless authorized to do so by express law, is one of those self-evident Charles v. Waugh, 35 id. 315; Altes v. Hinckler, 36 id. 265; Holbrook v. Dickinson, 46 id. 285; O'Brien v. Coulter, 2 Blackf. (Ind.) 421 ; Dentler r. State, 4 id. 258; Fitch v. Casey, 2 Greene (Ind.), 300; Gaylord v. ScarfE, 6 Iowa, 179; McGahen v. Carr, Id. 331; Terry v. Bleight, 3 T. B. Mon. (Ky.) 270; Bishop v. Lovan, 4 B. Mon. (Ky.) 116; Delogny v. Smith, 3 La. 418 ; Morris v. Crocker, 4 id. 147 ; McDonough v. Gravier's Cur., 9 id. 531, 546; Carmichael v. Aikin's Heirs, 13 id. 205; Brady v. OfEutt, 19 La. Ann. 184; Porter v. Whitney, 1 Me. 306; Bussey v. Leavitt, 12 id. 378; Keene v. Houghton, 19 id. 568; Brown v. Veazie, 25 id. 359, 362 ; Shimmin v. Inman, 26 id. 228; Gushing v. Longfellow, Id. 306; Smith ». Bodfish, 27 id. 289, 295; Hobbs v. Clements, 32 id. 67; Matthews v. Light, Id. 305; Greene ». Lunt, 58 id. 518, 532; Alvord v. Collin, 20 Pick. (Mass.) 418; Farnum v. Buffum, 4 Cush. (Mass.) 260, 267; Scott V. Stearns, 2 Mich. N. P. Ill ; Boisgerard v. Johnson, 23 Miss. 122 ; Morton t!. Reeds, 6 Mo. 64, 74, 75; Reeds v. Morton, 9 id. 878; Lagroue v. Rains, 48 id. 536; Spurlock u. Allen, 49 id. 178; Abbott v. Doling, Id. 302; Large V. Fisher, Id. 307; Brown v. Smith, 1 N. H. 36; Brown v. Dinsmoor, 3 id. 103 ; State, ex rel. Baxter, o. Jersey City, 36 N. J. L. 191 ; Doughty ». Hope, 3 Denio (N. Y.), 594; Hubbell v. Weldon, Hill & D. (N. Y.) 139; Jackson d. Cook v. Shepard, 7 Cow. (N. Y.) 88; Jackson d. Watson v. Esty, 7 Wend. (N. Y.) 148; Varick v. Tallman, 2 Barb. (N. Y.) 113; Adri- ance v. M'CafEerty, 2 Rob. (N. Y.) 153; Register v. Bryan, 2 Hawks (N. C), 17; Doe d. Taylor v. Allen, 67 N. C. 346; Hughey's Lessee v. Horrel, 2 Ohio, 231 ; Holt's Lessee v. Hemphill, 3 id. 232; Carlisle's Lessee v. Long- worth, 5 id. 368 ; Lafferty's Lessee ». Byers, Id. 458 ; Dresbaok's Lessee v. Mc Arthur, 7 id. 146 ; Perkins's Lessee v. Dibble, 10 id. 438 ; Birch ». Fisher, 13 Serg. & R. (Pa.) 501 ; Wistar «. Kammerer, 2 Yeates (Pa.), 100 ; Young's Lessee v. Martin, Id. 812 ; Huston v. Foster, 1 Watts (Pa.), 478; Foust v. Ross, 1 Watts & S. (Pa.) 501 ; Shearer v. Woodburn, 10 Pa. St. 511; Had- ley ». Tankersley, 8 Tex. 12; Yenda w. Wheeler, 9 id. 408; Davis v. Fames, 26 id. 296; Culver v. Hayden, 1 Vt. 359; Hall w. Collins, 4 id. 316; Rich- ardson V. Dorr, 5 id. 9 ; Spear v. Ditty, 8 id. 419 ; Bellows v. Elliott, 12 id. 569; Isaacs v. Shattuck, Id. 668; Isaacs v. Wiley, Id. 674, 677; Sumner v. Sherman, 13 id. 609 ; Brown v. Wright, 17 id. 97 ; Carpenter v. Sawyer, Id. 121 ; Taylor ». French, 19 id. 49; Langdon «. Poor, 20 id. 13; Chandlerp. Spear, 22 id. 388 ; Yancey v. Hopkins, 1 Munf. (Va.) 419; Nalle's Rep. v, Fenwick, 4 Rand. (Va.) 585; Allen ». Smith, 1 Leigh (Va.), 231, 248; Wilsons V. Doe d. Bell, 7 id. 22; Jesse v. Preston, 5 Gratt. (Va.) 120. (The authority must be made to appear, must be strictly pursued, and no intendments can be indulged in to support the proceedings. Williams V. Underbill, 58 HI. 137.) 124 STRICT CONFORMITY TO STATUTE NECESSARY. § 129 propositions to which the mind assents without hesitation ; and that the person invested with such a power must pursue with precision the course prescribed by law, or his act is in- valid, is a principle which has been repeatedly recognized in this court." ^ So strict, indeed, are the decisions in reference to this class of sales, that it has been said that a tax deed is prima facie void.^ § 128. The common-law rule which distinguishes between general and special powers is uniformly and consistently ap- plied by the courts in England and the United States to every class of powers, whether they are regarded as common-law authorities, those deriving their effect from the statute of uses, or statutory powers. It has already been shown that the collector, or other officer, has no general authority to sell land for the non-payment of taxes, but a special power to sell in the particular cases prescribed by law. Wherefore it is held that those cases must exist, or the power does not arise ; and when it does arise, all of those formalities which the law creating the power has imposed upon its own officers for the security of private rights must be faithfully observed in the execution of the power. The power itself is a high preroga^ tive, and the exercise of it a rigorous proceeding. It divests the owner of his title without his consent, and very often for a trifling consideration ; and the legislature have usually shown a cautious solicitude to protect the rights of private property by clogging the exercise of this power with conditions and forms intended as guards against oppression and fraud.^ § 129. The doctrine of the common law, which requires that those conditions shall be complied with and forms strictly observed, more forcibly applies to ministerial officers charged by statute with the execution of a special authority to be ex- ercised over the estates of individuals, than in those cases where one citizen delegates a special power to another ; be- 1 Thatcher v. Powell, 6 Wheat. (U. S.) 119; s. o. 5 Pet. Cond. 27. " Minor o. Natchez, 4 Smedes & M. (Miss). 602, 628, — a mere dictum, however. « Tallman «. White, 2 N. T. 66, 70; Hughey's Lessee ». Horrel, 2 Ohio, 231; Farnum v. Buffum, 4 Cush. (Mass.) 260, 267. 125 § 131 NATURE OF THE POWER TO SELL LAND. cause those officers are agents, appointed under the authority of the general law, in the selection of whom the party to be affected by their acts has no immediate agency, and over whom he has jio manner of control. He cannot confer the power upon another, whom he might esteem more worthy of confidence, but must abide the act of the agent of the law.^ § 130. Besides, in this class of powers the government, by its agents, acts in hostility to and with the view of subvert- ing the title of the citizen for an alleged breach of its revenue regulations. Under such circumstances the presumption is, that the owner has violated no law, — neglected no duty en- joined upon him which shall have the effect of working a forfeiture of his estate. He waives nothing by silence, stands upon all of his rights, and is permitted to insist upon a strict compliance with all of those conditions which the law has imposed upon its own agents for their guide in the execution of the power .2 Another reason assigned for this strictness is that the power of the officer to sell land for the non-payment of taxes by the owner is a naked one, not coupled with an in- terest ; and in all such cases, whether the power is general or special, the common law requires that every prerequisite to the exercise of the power must precede it ; that the agent must pursue the power, or his act will not be sustained by it.* Judge Scates, in Hinman v. Pope,* well remarks, that " this vigilance of the law upon naked powers is a substitute for that vigilance which interest always prompts in those who execute a power coupled with an interest." § 131. Again, proceedings of this kind partake somewhat of a judicial character, yet in point of fact they are usually ex parte, always summary, and the notice to the owner is merely constructive. The course of the common law in judicial proceedings is thus departed from ; that fundamen- tal principle of natural justice which requires actual notice and an opportunity of a hearing before condemnation is vio- lated in spirit, and the owner of the land, under pretence of 1 Schmidt v. Gatewood, 2 Rich. Eq. (S. C.) 162, 170; Dudleys. Little, 2 Ohio, 504. " Varick i-. Tallman, 2 Barb. (N. Y.) 113. ' See § 125, and authorities cited. * 6111. 131. 126 STRICT CONFORMITY TO STATUTE NECESSARY. § 132 delinquency, " is disseised of his freehold without the judg- ment of his peers or the law of the land." It is conceded that the collection of taxes cannot in general be made by ordinary suits, and that the proceedings in such cases must of necessity be summary and ex parte. But this very neces- sity begets another, that in the execution of such a power the law shall be strictly and punctiliously complied with in all of its requisitions.^ This rule is applied to all summary pro- ceedings prescribed by statute, where the accustomed course of the common law is departed from.^ § 132. The evident intention of the legislature in the en- actment of this class of laws is to coerce the payment of taxes from the unwilling, and at the same time to protect the rights of private ownership as guaranteed by the fundamental principles of our institutions. The former object is accom- plished by the sale of the delinquent's lands, the latter by those conditions s^nd forms with which the officer is bridled and restrained in the execution of the power of sale. A double — a general and particular — intent is thus manifested in all such laws, both of which should be sacredly respected, and carried out by the courts in construing them ; the true prin- ciple applicable in all such cases being, that the private interest of the citizen is never to be sacrificed to a greater extent than is necessary to secure a public object of adequate importance ; nor should the power be exercised in any other mode than that specially pointed out by the statute.^ As a matter of public policy, tax sales should not be sustained, unless the laws are shown to have been complied with. In the varied transactions of men, absolute punctuality in the payment of taxes is impossible. Misfortune, disease, and death prevail in every community, and interrupt the performance of the duties of the citizen toward the government of his choice. A 1 Morton ». Reeds, 6 Mo. 64. 2 Logwood V. Planters' & M. Bank, 1 Minor (Ala.), 23; Crawford ». State, Id. 143 ; Judson v. State, Id. 1 53 ; Yancey v. Hopkins, Id. 171 ; Bates V. Planters' & M. Bank, 8 Porter (Ala.), 99; Levert v. Planters' & M. Bank, Id. 104; Zurcher v. Magee, 2 Ala. 253; Bates v. Branch Bank at Mobile, Id. 689; Brown v. Wheeler, 3 id. 287. * Broom's Maxims, Second London Edition, 1848, pp. 3, 4. 127 § 135 KATDEE OF THE POWEB TO SELL LAND. mere oversight of the owner, and not a wilfol and perverse disposition, may have been the occasion of the failure to pay the tax.^ § 133. There is another role equally well settled, that every person claiming title to real estate is chargeable with notice of aU defects apparent upon the face of his muniments of title.^ In tax titles, the constitutional provisions regulating the taxing power, the statute levying the tax and prescribing the manner of enforcing its collection, and the acts of those to whom the execution of the power is intrusted, are all essen- tial links in the chain of title, — all of them are matters of record, — and the purchaser is bound to take notice of all omissions or irregularities which have taken place in the pro- ceedings under which he claims the estate. He is therefore to look to it at his peril. The maxim caveat emptor applies to him with great force. § 134. Again, the consideration usually paid for a tax title is grossly inadequate. These sales " are attended with greater sacrifice to the owners of land than any others. Par- chasers seem to have but little conscience. They calculate upon obtaining acres for cents, and it stands them in hand to see that the proceedings have been strictly regular." ^ In Moore v. Brown,* Pope, J., says, " A strict construction has always been given to tax titles. It is necessary that at least the requisites of the law through ^hich an individual is di- vested of his title should be substantially complied vrith. We see the necessity of this rule in the case under considera- tion. Three hundred and twenty acres of land have been sold for less than twenty dollars. If such sacrifices can be made where there is a departure from the requirements of the law, there is no safely to the owners of real estate." § 135. In Farnum v. Buffum,* Judge Wilde remarks, " In a 1 Mason v. Fearson, 9 How. (U. S.) 248; connsel argtienda in Kemper r. McClelland's Lessee, 19 Ohio, 308, 321. » Baltiniore ». White, 2 Gill (Md.), 444. » Hnghey's Lessee o. Horrel, 2 Ohio, 231 ; 8. c. 1-4 Ohio Cond. 335. * 4 McLean C. C. (U. S.) 211. » 4 Cnsh. (Mass.) 260, 267. See also Clarke v. Strickland, 2 Cnrtis C. C. (U. S.) 439, 444. 128 STRICT CONPOBMITT TO STATTJTE NECESSABT. § 137 sale like tiiis, where a large and yaloable property has been sold for a mere trifle, a compliance with all the proTisions of the statute should be proved with great certainty in eyery par- ticular." In Beeds v. Morton,^ the court, in speaking of the neglect of the tax purchaser to record his certificate, as re- quired by the statute, say : " We do not feel ourselves called npon to give reasons why this tjiing should have been done. He who wishes to obtain an estate worth thousands for less than ten dollars, under and by virtue of the law. is not to be permitted to ask why he should be required to do tiiis or to do that. It is an answer that it is required by law. Ita lex seripta est. He claims by the law ; then by tiiat law let his pretensions be judged." And in Mayhew v. Davis,^ the court. Pope, J., remarks : " The defendant claims to hold the land in controversy, valued by an assessor at nine hundred and sixty dollars, by virtue of a sale at which he pud less than five dollars for it. This, then, is a claim of strict ri^t, where a court would not grant a new trial, nor would a chancellor enforce such an unequal bargain." § 136. Another reason assigned for this strictness is, that the statutes under which lands are sold for taxes are highly penal in their character ; so much so that a man may abso- lutely lose his whole estate for a few days' ne^ect in the pay- ment of a ta:s which rarely exceeds the one-hundredth part of the sworn valuation thereof. Now, the rule is clearly estab- lished, that penal laws of every description are to be strictly construed, and nothing therein is to be taken by implication or intendment,^ That such statutes are strictly penal, will be apparent upon a review of the authorities.* § 137. When a person claims an estate, purporting to be derived under a power, he must prove the existence of the power, and a compliance with all of its requisitions. This rule pervades all classes of powers, and is universal in its ap- plication. In this country especially, all constitutional and J 9 Mo. 87a » 4 McLean C. C. (U. S.) 213. » Yancey r. HopKns, 1 Mnnf . (Va.) 419, 437. * Smith's Com. ch- 18, § 738, p. 85^ and cas^ there cited. But see Cornwall r. Todd, 38 Conn. 447; Hubbard c. Bnunaid, 35 Conn. 563. VOL. t— 9 129 § 138 NATURE OF THE POWER TO SELL LAND. statutory powers are limited, and all acts done by persons assuming to act in an official capacity are nullities, unless the power exists, and the mode of exercising it has been ad- hered to by the officer. The rule applies to the legislature itself. The Constitution of Illinois confers upon the General Assembly the power to enact laws, but declares that no bill shall become a law until it shall have been read three several times in each house, and received the assent of a majority of all the members elect; this assent to be manifested by yeas and nays, to be entered of record upon the journals of the respective houses. Where these requir.ements were not complied with, the act was held not to be a law of the land.' The judicial power is vested in the courts of justice, but they are limited by law as to the subject-matter, etc., and the mode of acquiring jurisdiction is prescribed by law. If they render a judgment or decree against the citizen, in a case over which they have no jurisdiction, or without bringing the party into court in the manner prescribed by law, the act is a nullity. The act of every executive officer, from the President down to a town constable, is void where he has no authority, or pro- ceeds contrary to the mode prescribed by- the Constitution and laws. The security to the citizen in the observance of the forms prescribed by law consists in the deliberation and solemnity which attend them ; and the frequency of their oc- currence is a monitor which reminds the officer of the effect of his power, and the necessity of a strict compliance with the terms of it. § 138. Again, the estate of the purchaser is an acquisi- tion by operation of law. The power is created by statute, the officer authorized to make the sale is appointed by law, and the time, place, and manner of sale are prescribed by the law. The estate, therefore, depends upon the law for its validity, and not upon the consent of the former owner. Now, it is difficult to perceive how any one claiming title to land, under a statute which points out the manner of acquisition, can establish that title in a court of justice without proving 1 Spangler v. Jacoby, 14 111. 297. See Cooley's Const. Lim. 80, 81, 139, 140. 130 STRICT CONFORMITY TO STATUTE NECESSARY. § 138 the existence of all those acts which the law has prescribed as conditions precedent to its validity. The law is the foun- dation of the title ; it is the power of attorney of the officer who makes the sale. Therefore, a person claiming under the statute must not only show the power, but a compliance with all of its terms or requirements. It is a general principle, applicable alike to all political organizations, that every citizen is bound to take notice, at his peril, of the law of the land; that ignorance of its existence is no excuse for disobeying its mandate ; and that however ambiguous it may be, consequences arising from an erroneous construction of it cannot be averted, either at law or in equity. When, therefore, a party claims title under a public law, he is not only bound to know the law, and give it a fair and reasonable construction, but he is bound to see that all of its substantial requirements have been complied with, " A special authority must be strictly pursued, and every purchaser is to be presumed to know that special authority in all cases where it is conferred and limited by statute."^ The law has a twofold object. It was not de- signed simply for the purpose of prescribing the authority of the officer to sell, " but also to give to purchasers full informa- tion of the terms upon which a title could be acquired to land sold for the non-payment of taxes." It was meant to put bidders at a tax sale upon inquiry whether or not the land was offered for sale according to law. If they do not ex- amine, and shall buy land exposed to sale for taxes against the law, they do so at their own risk ; and it will be presumed against them, that they know that the deeds given under such circumstances are made in violation of official duty and of the law.* This is in accordance with the well-settled principle that whenever one man presents himself as the agent of another, it is the duty of all who have any transactions with him in his representative character to inquire into the extent of his authority, and they deal with him at their peril.^ The fact that the agent is a public instead of a private one, and 1 Denning v. Smith, 3 Johns. Ch. (N. Y.) 332, 344. 2 Moore v. Brown, 11 How. (U. S.) 414. 8 IJ. J. Marsh. (Ky.) 285, 287. 131 § 140 NATtTRE OF THE POWER TO SELL LAND. that his authority is conferred by a statute instead of a writ- ing upon parchment or foolscap, can make no essential differ- ence in the application of the principle. § 189. The most convdncing reason why every requirement of the law should be strictly complied with by the officer, in the sale of land for the non-payment of taxes, is to be found in the fact that "thus the law is written." Where the words of a statute are plain and unambiguous, there is no necessity for resorting to technical rules of construction, but the legislative will, as expressed, must be obeyed.^ When there is doubt and ambiguity in the language used, then every- thing which serves to assist in ferreting out the intention of the maker may be resorted to. This is the point where inter- pretation commences. § 140. There is another rule of law on this subject : that a statute ought to be so construed that no clause, sentence, or word shall be superfluous, void, or insignificant, if it can be prevented.^ These two rules, that every word must have effect, and that where the words are plain there is nothing to con- strue, put an end, in every case, to judicial discretion. The legislature commands, and the judges must obey. It is aston- ishing that tliese plain, common-sense maxims should ever have been departed from by the courts in the application of statute law to cases brought before them for adjudication. The intention of the legislature, it is true, must control in all cases, but that intention is to be collected from the words of the act. A sound construction must always be warranted by the words, and never repugnant to them. Where the legisla- ture have used words of a plain and definite import, it would be dangerous to put upon them a construction which would amount to holding that the legislature did not mean what they have expressed.^ This would be imputing to the le^slature J People V. Canal Com., 4 111. 153, 161; Wilkinson v. Leland, 2 Pet. (U. S.) 627, 662; Clay v. Hopkins, 3 A. K. Marsh. (Ky.) 485, 489 ; Ellis V. Paige, 1 Pick. (Mass.) 43, 45; Holbrook v. Holbrook, Id. 250 } Bartlett V. Morris, 9 Porter (Ala.), 266. » 6 Bac. Abr. 380. « Rex V. Stoke Damerel, 7 Barn. & C. 562, 569; Rex v. Ramgate, 6 id. 712. 132 STEICX CONFOBMITT TO STATUTE NECESSARY. § 141 useless and frivolous conduct, vrliich is niever lawful in con- struing their acts.^ Judges are not to presume the intention of the legislature, but collect it from the words of the act, and they have nothing to do with the policy of the law. This is the true sense in which it is so often impressively repeated that judges are not to be encouraged to direct their conduct " by the crooked cord of discretion, but by the golden mete- wand of the law ; " i, e., not to construe statutes by equity, but to collect the sense of the legislature by a sound interpreta- tion of the language, according to reason and grammatical correctness.^ The most enlightened and experienced judges have for some time lamented the too frequent departure from the plain and obvious meaning of the words of the act by which a case is governed, and themselves hold it much the safer course to adhere to the words of the statute, con- strued in their ordinary import, than to enter into any inquiry as to the supposed intention of the persons who framed the act.* § 141. " It is safer," says Mr. Justice Ashhurst, " to adopt what the legislature have actually said, than to suppose what they meant to say."* In the case of Hardin v. Owings,^ an appeal was taken from the Circuit to the Court of Appeals ; the appeal bond was executed by the appellant in the presence of the deputy clerk, but the surety did not execute in the clerk's office, or in the presence of the clerk. The statute re- lating to such appeals expressly required that the bond should be executed in the office of the clerk of the inferior court. A motion was made to dismiss the appeal, because the bond was not executed in conformity with the law, which was sustained by the court. Edwards, C. J.: "We are clearly of opinion that' the bond should be executed in the office, and to prove this, nothing more would seem to be requisite than the plain and unambiguous language in which this mode is prescribed by the legislature. The legislative body is the supreme power pf the state, and whenever it acts within the pale of its consti- i Thayer v. Stearns, 1 Pick. (Mass.) 482. « 2 Dwarris, 703. » 10 Barn. & C. 527. * Jonea v. Smart, 1 Durnf. & E. T. R. 51. » 1 Bibb (Ky.), 214. 133 § 141 NATURE OF THE POWER TO SELL LAND. tutional authority, the judiciary is bound by it ; and it is not competent to the latter tribunal to dispense with a regulation or requisition plainly prescribed by the former (its superior), or to say that this mode, that, or the other, is as good as the one prescribed by the legislature ; for this, in fact, would be placing the judiciary above the legislature by enabling the former to nullify the acts of the latter, or to supersede them by substitutes to which the legislature might not have assented had the proposition been submitted to it. If we can say that though the legislature has required the appeal bond to be exe- cuted in the office it is sufficient if executed out of the office before private individuals, and afterwards be deposited in the office, why might we not also say that though required to be executed in the office of the inferior court, it is sufficient if executed in the office of this court ? One set of judges might think the former would be a sufficient compliance with the legislative intention ; another set, adopting the principle that they had a right to depart from the words of the act, might think the latter a sufficient compliance; and a third set, adopting this course of reasoning, viz., that as the legislature was competent to command, it ought to be obeyed, and having commanded the thing to be done in one way, all other ways were excluded, they might think themselves bound to decide upon the words of the act itself ; and thus, among them, pro- duce that uncertainty which has hitherto, and with too much justice, been the reproach of the law. Besides, therefore, being a point of duty, it is much safer to make the law itself the rule of action, when it is plain and intelligible ; it is best calculated to produce uniformity of decision, and to cause it to be understood by the mass of the people, on whom it is designed to operate. In general, the law is plain enough ac- cording to the letter of it; men of very ordinary capacities are capable of understanding it; but there have been so many subtle, refined, and artificial rules of construction devised by ingenious lawyers, and adopted by supple courts, in explaining a legislative act, or supplying the defect of a party in bringing himself within its provisions, that in many instances a man of good judgment and of considerable legal science cannot 134 STRICT CONFORMITY TO STATUTE NECESSARY. § 142 anticipate what decision courts will give on the plainest stat- ute. There is not a lawyer but knows that the most abstruse and doubtful part of legal science has arisen from the cause above mentioned. Witness the various and irreconcilable decisions under the statute of limitations, the statute of frauds and perjuries, etc. One judge has at one time decla,red that to admit certain constructions -of a particular statute would amount to a virtual repeal of it ; another judge, of precisely the same grade, and sitting on the same judicial seat, at another time has declared that the very same were legitimate constructions, and fairly deducible from the statute itself; and thus have judicial decisions (the evidence of the law) been rendered uncertain and vibrating according to the whim, caprice, or judgment of different men who all had an equal right to judge. They have made the legislature mean any- thing, everything, and almost nothing, as suited the particular case before them ; and this will ever be the case while this ar- bitrary field of discretion is assumed and exercised by judges, and until the acts of the legislature, according to their plain and obvious import, unembarrassed by mere technical and artificial rules, are made the proper and governing rules of decision. If the law should prove to be defective, inadequate to the object of it, or oppressive in its operation, it is certainly more peculiarly the province of the legislature than the judi- ciary to supply or remedy those defects. In the judiciary, the exercise of such a power is not warranted by the Constitution, under which we act ; it is contrary to it, and must therefore be an unjustifiable assumption of power." § 142. " Opposed to all this reasoning is the very conven- ient and pliable common-law maxim, g-m' hceret in liter a, hceret in cortice (he who considers merely the letter of an instrument goes but skin-deep into its meaning), a maxim which, under great limitations, may be correct and not without its use, but which, according to the expanded ground it has been made to occupy by some judges in England, is not only intrinsi- cally incorrect, but of the most dangerous tendency, because it renders perplexed the rules of decision, enlarges an arbi- trary discretion in judges, and encroaches on legislative au- 135 § 143 NATURE OP THE POWER TO SELL LAND. thority. It is congenial enough to arbitrary governments, where the judiciary becomea the engine of the court ; in such governments it furnishes the judges with great facilities in subserving the views of the court, or others whose interest they may be disposed to promote. Nothing is more easy than to decide to-day that such is the spirit of the law, such was the intention of the legislature, such alone the evil in- tended to be remedied ; in a short time the subject may pre- sent itself in a point of view a little varied from the former one ; and finally the judges may return to the law, and en- force it according to the letter of it, and nothing is more natural, and many times nothing is more just, than the apol- ogy, Humanum est errare. But insomuch as the principle is adapted to arbitrary governments, in just so much it is uncongenial and dangerous to ours, and therefore it ought to be circumscribed within a very narrow compass ; to effect which, this court has recently in several instances gone great lengths, and probably may find it necessary to go still further. In the present case, the rule prescribed by the legis- lature is a plain and intelligible one ; the party who claims the benefit of the law could have pursued it ; if he did not choose to do so, the court ought not to aid his negligence, and supply the defect by adopting a perplexed and doubtful system of adjudication and interposing an illegitimate dis- pensing power over the acts of the legislature. The legialar ture, as before premised, has declared that the bond should be executed in the office ; it had the right so to declare ; we have no power to nullify the act, or to supersede it by a sub- stitute. We therefore must say, Ita lex scripta est, and the defendant, in this motion, must be bound by it." § 143. This reasoning is most convincing, and deserves to be accompanied with the judicious and sensible remarks of Judge Hebard: "lam not very well satisfied with the sum- mary mode of getting rid of a statutory provision by calling it directory. If one positive requirement and provision of a statute may be avoided in that way, I see no reason why another may not." ^ Mr. Justice Morton also remarks: 1 Briggs V. Georgia, 15 Vt. 61, 72. 136 STEICT CONFORMITY TO STATUTE NECESSARY. § 145 " Equitable constructions, though they may be tolerated in remedial and perhaps some other statutes, should always be resorted to with great caution, and never extended to penal statutes, or mere arbitrary regulations of matters of public policy. The power of extending the meaning of a statute beyond its words, and deciding by the equity and not the language, approaches so near the power of legislation, that a wise judiciary will exercise it with reluctance, and only in extraordinary cases." ^ § 144. This is the doctrine of the Missouri courts : " Thus the law is written, and we do not feel called upon to give reasons why it is so."^ The principle has been repeatedly applied in the construction of statutes authorizing the sale of land for taxes, as will be shown hereafter, in treating of each particular requirement of the revenue laws. It will thus be seen that the nature of the power, the character of the pro- ceedings, the spirit of the Constitution, the letter of the law, and the true principles of interpretation all concur in requir- ing strictness in the execution of this class of powers. The oflBcer is the agent of the law, the statute is his warrant of attorney, and he is bound to conform strictly to it. We may here fitly quote the remarks of the court in Powell v. Tuttle : ^ " It is a familiar rule of law, that a special authority must be strictly pursued. When such authority is prescribed by stat- ute, and when in its exercise it operates to divest the citizen of his property, courts cannot be too sedulous in confining it ' within the boundaries which the legislature have thought fit to prescribe. At this day, and in this country especially, tiie protection of private rights demands this safeguard ; and he who will review the adjudications of our courts involving this principle will be interested to observe with what uniformity and unceasing jealousy the exercise of such a power has been restricted to its own specified limits." § 145. The strictness required in such cases has its origin in that great fountain of the common law which regulates powers. A special authority must be strictly pursued, but » Monson v. Chester, 22 Pick. (Mass.) 385, 387. ' Beads v. Morton, 9 Mo. 878. » 3 Comst. 401. 137 § 147 NATURE OP THE POWER TO SELL LAND. more latitude is allowed in the exercise of a general author- ity .^ Where a general power is given executors, by will, to sell land, they have a discretion to sell for cash or upon credit ; they may select that time which they may regard as most appropriate for the sale, provided there is no unreason- able delay ; they may sell at public or private vendue ; they may sell it all at once, or at different times ; they may sell it entire, or in parcels, to suit the interest of the estate or the convenience of purchasers, and may adopt such form of con- veyance, and such ceremonies in the execution of the title- deeds, as they, in the exercise of a sound discretion, may deem proper. All that law requires of them is the exercise of good faith, and a due regard to the interests intended to be pro- moted by the testator. § 146. But if, on the other hand, a special power is dele- gated to them ; if, for example, they are required to sell at a particular* time, for cash, at public auction, in particular par- cels, by lease and release, or any other prescribed mode of conveyance ; or if any other specific directions are given in the will as to the manner in which the power shall be exer- • cised, all of these become conditions precedent, and must be strictly observed by the executors, or the power is not well executed, and no title will pass to the purchaser.^ § 147. So, where a general power of attorney is given by one person to another to sell and convey an estate, a discre- tion is necessarily vested in the attorney, and great latitude is allowed in the exercise of the authority. But if the owner of the estate prescribe, in the instrument creating the power, the mode of its exercise, all of the requirements of the warrant must be strictly complied with, or the power does not arise. The powers in both of the cases mentioned are termed com- mon-law authorities.* The same rules apply to the execution of powers of appointment and revocation, which grow out of the statute of uses. Where the power is given generally, 1 Natchez v. Minor, 10 Smedes & M. (Miss.) 246, 264. a Taylor ». Galloway, 1 Ohio, 232 ; Loomis v. MoClintock, 10 Watts (Pa.), 274. " Sugden on Powers, 1. 138 STRICT CONFOEMITT TO STATUTE NECESSARY. § 149 without defining the mode in which it must be executed, it may be exercised either by deed, will, or a simple note in writing, without even an attestation ; and the reason is that the law treats the instrument by which the power is executed as a mere appointment or revocation of the use, according to the will of the donor, and if the intention to do this is mani- fest upon the face of the instrument, it is regarded as a valid execution.^ § 148. But there are cases where the power is special, in which particular circumstances are required to attend the exe- cution of it. " These are, generally, first, a particular instru- ment ; secondly, a particular mode of execution ; and thirdly, conditions not strictly relating to the instrument, as the con- sent of third persons, tender of money, or the like." Where forms are imposed on the execution of such a power, it is either to protect the remainder-man from a charge in any other mode, or to preserve the person to whom it is given from a hasty and unadvised execution of the power. In each case the circumstances must be strictly complied with : in the first, it would be in direct opposition to the agreement, to consider the estate charged, when the mode pointed out is not adhered to ; in the second, to dispense with the solemnities and forms required to attend the execution of the power, is to deprive a man of the bridle which he has thought proper to impose on his weakness or frailty of mind in order effect- ually to guard himself against fraud and imposition.^ § 149. The strictness required in the execution of this class of powers is admirably sustained by the reasoning of Lord Ellenborough, in the case of Hawkins v. Kemp.^ There, the terms of the power required that the revocation should be by deed or other instrument in writing, executed in the presence of and attested by three credible witnesses, enrolled in one of his Majesty's "courts of record at Westminster, and with the consent and approbation of nine persons named in the instrument creating the power. The deed executed under this power was not enrolled ujatil after the death of the ' Sngden on Powers, ch. 5, § 2. * Sugden on Powers, ch. 5, § 3. '3 East, 410. 139 § 150 NATUBB OP THE POWER TO SELL LAND. appointee, but every other requirement had been complied with ; and this objection being taken to the deed, it was sus- tained by tlie court, the Lord Chief Justice saying : " Every one of these required circumstances is in itself perfectly arbitrary, and (except only as it is in fact required) unessen- tial in point of effect to the legal validity of any instrument by whicb old uses should be revoked or new uses declared. It is in itself immaterial whether the instrument in writing, purporting so to revoke and declare the uses, should be by deed ; whether such deed should be executed in the presence of what and how many witnesses ; whether it should be after- wards attested by the witnesses, and ultimately enrolled in any court of record ; and whether it should be sanctioned by the consent and approbation of the several trustees named for that purpose. It might (if it had so pleased the parties creating the power) have been done by any writing of the persons so authorized, unsealed, unattested, and mienroUed, and unsanctioned by any consent or approbation whatever. If these circumstances be unessential and unimportant, except as they are required by the creator of the power, they can be satisfied only by a strictly literal and precise performance. They are incapable of admitting any substitution, because these requisitions have no spirit in them which can be other- wise satisfied ; incapable of receiving any equivalent, because they are in themselves of no value." § 150. There is still another class of powers, more closely resembling the power in question, which are created by statute, and depend upon the statute for the mode and manner of their execution, and may therefore be properly termed statutory powers. Such are sales of land by administrators, to pay the debts of an intestate ; by guardians, for the maintenance and education of their wards ; proceedings for the condemnation of land to public uses ; and others of a like nature. Sometimes the power is conferred upon superior courts of general common- law and chancery jurisdiction ; again upon inferior courts of special jurisdiction; and again upon commissioners who act in a judicial capacity. In all of these cases the power is special and the proceedings are summary. If this special authority 140 STRICT CONFOEMITT TO STATUTE NECESSARY. § 152 is conferred upon a superior coui-t of general jurisdiction, which usually proceeds according to the course of the com- mon law, the tribunal is regarded, quoad hoc, as an inferior court with special jurisdiction. The rule applicable to such a power is thus laid down by Justice Caton, in reviewing a guardian's sale : " This is a proceeding, not according to the course of the. common law, but a special jurisdiction con- ferred by the statute; and although in a court of general common law and chancery jurisdiction, yet when a court un- dertakes to exercise this extraordinary jurisdiction, which is not in conformity with either,- it must appear upon.the face of the record or proceeding itself that the contingency existed, or at least was alleged, which authorized it to proceed under the statute and make the order." * § 151. The language of C. J. Marshall is similar. He says: " In summary proceedings, where a court exercises an extraor- dinary power under a special statute prescribing its course, we think that course ought to be exactly observed, and those facts especially which give jurisdiction ought to appear, in order to show that the proceedings are coram judice" ^ In other words, all of the facts which are essential to the exer- cise of the power must affirmatively appear upon the face of the record ; they cannot be supplied by proof, or made out by intendment. The authorities upon this point are uniform.^ § 152. If, on the other hand, this special authority is con- ferred upon an inferior tribunal of limited jurisdiction, or upon commissioners, or upon any other individuals who act quoad hoc in a judicial capacity, the rule is still more strict. It is thus laid down : Where a special authority is delegated by statute to particular persons, or to any inferior tribunal, affecting the property of individuals against their will, the 1 Young V. Lorain, 11 LI. 624, 636, 637. " Thatcher e. Powell, 6 Wheat. (U. S.) 119; s. c. 5 Pet. Cond. 28; Wight V. Warner, 1 Doug. (Mich.) 384; Clark v. Holmes, Id. 390; Piatt t>. Stewart, 10 Mich. 260 ; Chandler v. Nash, 5 id. 409. * Zurcher v. Magee, 2 Ala. 253; Bates v. Branch Bank at Mobile, 2 Ala. 689; Brown v. Wheeler, 3 Ala. 287. 141 § 153 NATURE OP THE POWER TO SELL LAND. course prescribed by law must be strictly pursued, and appear to be so upon the face of the proceedings, or the power is not well executed.^ And it makes no difference, in the appli- cation of this principle, whether the question comes before the superior courts by certiorari or collaterally. If the law has not been strictly complied with, the proceeding is a nullity, and the adjudication gives it no a4ditional validity. § 153. In the case of Rex v. Croke,^ which was a proceed- ing to condemn property for public uses, by the court of Quarter Sessions, before a jury summoned by the sheriff, the statute required that the precept for a jury should be issued on the application of " the Mayor, Aldermen, and Commons of London, in common council assembled," and that notice in writing should be given to the mortgagee in possession, etc. The order of the Quarter Sessions recited an applica- tion by the "Mayor, Commonalty, and Citizens of liondon," that proof of due notice had been given to Croke, the defen- dant, and omitted to state whether Croke was a mortgagee in or out of possession. On certiorari, the court of King's Bench , quashed the order of condemnation: (1) Because of the mis- recital of the corporate name of the city of London ; (2) Be- cause the record did not set out the notice, and aver that it was in writing ; and (3) Because the order did not show that the defendant was a mortgagee in possession of the land condemned. Gilbert v. Columbia Turnpike Company ^ was a proceeding to condemn land for the use of the turn- pike company, under a statute which provided that in case of a disagreement between the company and the owner the president and directors might apply to one of the judges or assistant justices of the Court of Common Pleas of Columbia 1 Smith 0. Hileman, 2 111. 323; Sharp v. Speir, 4 Hill (N. Y.), 76, 86; Rex e. Croke, 1 Cowp. 26; Davison v. Gill, 1 East, 64; Pachett v. Bancroft, 7 Durnf. & E. T. R. 863 ; Rex v. Manning, 1 Bur. 377; Rex t>. Liverpool, 4 id. 2244; Gilbert v. Columbia Tump. Co, 3 Johns. Gas. (N. Y.) 107; State v. Scott, 9 N. J. 17, 20; Levy Court Lessee ». Gwynn, 4 Har. & J. (Md.) 227; McDermott «. Scully, 27 Ark. 226. » 1 Cowp. 26. 8 3 Johns. Gas. (N. Y.) 107. 142 STRICT CONFORMITY TO STATUTE NECESSARY. § 154 County, not interested in said road, and the judge or justice should appoint three commissioners, freeholders of the county, and not inhabitants of any of the towns through which the road shall pass. The law further provided that the com- missioners should name a day for a, hearing, and give the owner four days' notice of their appointment, and of the time and place of meeting, take an oath, and proceed to in- quire, etc. The inquisition did not recite a disagreement, the non-interest of the judge who appointed the commission- ers, that the commissioners were not inhabitants of any town through which the turnpike passed, nor that a writ- ten notice was given to the owner. The inquisition was brought before the Supreme Court by certiorari, and quashed for the reasons above named. In each of the preceding cases it will be seen that the question came directly before the court, on certiorari, to quash the order itself. § 154. In Davison v. Gill,^ an order was made by two justices of the peace, under the 13 Geo. III., c. 78, sec. 19, for stopping up an old footway and setting out a new one. A schedule was annexed to the statute, giving the form of the order, and the statute declared that the form set out in such schedule " shall be used on all occasions, with such additions and variations only as may be necessary to adapt it to the particular exigency of the case." The form referred to sets forth the length and breadth of the new or substituted footway. The justices omitted to state in their order the length and breadth of the substituted way. The action was trespass, q. c. /., for breaking and entering the close of the plaintiff. The defendant justified upon the ground that the locus in quo was part and parcel of a public footway. The validity of the foregoing order of the justices thus came up, the close being parcel of the old footway stopped up by them. Judgment was given for the defendant, Kenyon, C. J., saying : " The court are always disposed to support, as far as they can, the acts of the magistrates below ; but we must take care not to let our wishes carry us beyond the bounds of law. The justices have a limited power given them under the act » 1 East, 64. 143 § 156 NATURE OP THE POWER TO SELL LAND. of Parliament, and it must appear that this order was made by virtue of that power, etc. The words of the act are peremptory. I cannot, therefore, say that these words are merely directory. Power is given to the magistrates to take away, on certain conditions, a right which the public before enjoyed, and this is to be done in a certain prescribed form, etc. Now, here is a material variance in the or^er, from the form prescribed ; for it does not set forth the length and breadth of the new path set out in lieu of the old one." § 155. Smith v. Hileman ^ was an ejectment to recover a parcel of land which the defendant claimed under a sale made by an administrator to pay debts, in pursuance of the order of the Circuit Court. The statute under which this proceeding took place required the administrator to set forth in his deed of conveyance " the order of the court at large." The deed, in this case, omitted to set forth the order at large, but recited it substantially. The court held that no title passed by the deed. Smith, J., in delivering the opinion, says : " The reason of this precision we are not at liberty to inquire into, nor what the supposed necessity may have been, in the opinion of the legislature, for its adoption. It is sufficient to perceive that the recital of the substance of the order is not a compliance with, or an observance of, the act. A special power granted by statute, affecting the rights of individuals, and which divests the title to real estate, ought tq be strictly pursued, and should appear to be so on the face of the proceedings." The last cases cited arose collaterally, and the proceedings, in each case, were treated as nullities. § 156. And here it may be remarked that the common law enters largely into the construction of every statute. A just interpretation is ever controlled by that law.^ It is said to be the best construction of a statute to expound it as near to the rule and reason of the common law as possible, and by the course which that law observes in similar cases.* The reason 1 2 111. 323. = Barry v. Mandell, 10 Johns. (N. Y.) 578, 586. » DwaiTis on Statutes, 695; Miles w. Williams, 1 P. Wms. 252; 1 Saund. 240; 10 Johns. 579; Doug. 27; 1 Bur. 445; 1 Kent, 464; 6Bao. Abr. 383; 144 STRICT CONFORMITY TO STATUTE NECESSARY. § 156 assigned by Chancellor Kent for this rule of construction is thus stated : " For it is not to be presumed that the legislature intended to make any innovation upon the common law further than the case absolutely required. This has been the language of the courts in every age ; and when we consider the constant, vehement, and exalted eulogy which the ancient sages be- stowed upon the common law, as the perfection of reason and the best birthright and noblest inheritance of the subject, we cannot be surprised at the great sanction given to this rule of construction." ^ The Chancellor, after stating that " we cannot be surprised at the great sanction given to this rule," because it was regarded " as the birthright and noblest inheritance of the subject," might have added that the rule was not only venerable and patriotic, but that it was founded in the com- mon sense of expositors. In construing a new law, we in- stinctively look to the old one, which is superseded or repealed. To use the quaint and expressive language of Lord Coke: " In construing a statute, we must look to the old law, the mischief, and the remedy." No judge, however acute, can properly construe a new law without knowing what the old law was. This seems a self-evident proposition. When a word is used in a statute, which has a well-known and definite meaning at common law, it is presumed that the legislature used it in that sense, and it should be so received and ex- pounded by the courts.^ When a power is given by statute, but the means of its execution are not prescribed, the power must be executed according to the course of the common law. Where the provisions of a statute are general, it is subject to the control and order of the common law ; in other words, the statute is to receive such a construction as may be agree- able to the rules of the common law in cases of that nature ; for statutes are not presumed to make any alteration in the Co. Litt. 272 6; Stowell v. Zouch, How. 365; Heydon's Case, 3 Coke, 7; Vernon's Case, 4 id. , 4. 1 1 Kent's Com. 464. 2 6 Bao. Abr. 383; Smith v. Harmon, 6 Mod. 143; Mayo v. Wilson, 1 N. H. 53; Bedell v. Janney, 9 111. 205, 206; Adams v. Turrentine, 8 Ired. (N. C.) 147; Dwarris on Statutes, 696. VOL I. — 10 145 § 157 NATURE OP THE POWER TO SELL LAND. common law further or otherwise than the act expressly de- clares.i This doctrine is expressly afl&rmed by the statute of Illinois, which declares that " the common law of England, etc., shall be considered as of full force, until repealed by legislative authority." ^ § 157. Where a right is given by statute, but no remedy to enforce it, the common-law remedy may be adopted ; and where a new remedy is given to enforce a right or redress a wrong recognized by the common law, and there are no nega- tive words in the statute, the party injured has an election to proceed under the statute or at common law. And lastly, when a statute makes an innovation upon the established principles of the common law, it must be strictly construed in all cases.^ Thus, in every view, the rules of the common law, in relation to special and naked powers and summary pro- ceedings, are peculiarly applicable to those officers of the law who, under the authority of general statutes, sell land for the non-payment of taxes. There are other reasons, equally if not, more weighty, why those officers should strictly conform to the requirements of the law. The chief purpose of government is the protection of life, liberty, and property ; and this is a fundamental principle in our free constitutions. The bill of rights attached to every one of them declares that the " ac- quisition, possession, and protection of property " is one of the inalienable rights of every citizen. A speedy and com- plete remedy, by due course of law, for all invasions of prop- erty is guaranteed to him. He is protected in the enjoyment of his property from the encroachment of every department of the government by those limitations which have been imposed by the Constitution upon the taxing power ; by that provisiont which prohibits the taking of private property for public uses without due compensation ; and by the further declaration that he shall not be " disseised of his freehold, or in any manner be deprived of his property, without the judgment of his peers 1 6 Bac. Abr. title " Statute," 383, 384. 2 Revised Statutes, 1845, p. 337, § 1. « M'Queen v. Middletown Manuf. Co., 16 Johns. (N. Y.) 5„7; Hall v. Irwin, 7 Dl. 184 & 429; Young v. Commonwealth, 4 Bin. (Pa.) 113, 116. 146 STEICT CONFORMITY TO STATUTE NECESSARY. § 158 or the law of the land." Not even a coHviction for the highest crime known to the law can have the effect of working a for- feiture of his estate. Thus the mantle of th6 Constitution and laws is thrown around the property of the citizen to shield it from public or private invasion. The spirit of these great fundamental principles, therefore, requires that when the high power of selling the estates of delinquent taxpayers is dele- gated to a subordinate officer, all of those conditions, checks, and forms which the legislature have seen proper in their wisdom to prescribe with a view to prevent fraud, oppression, and injustice in the execution of the power, should be observed by the officer in letter and spirit. It is a maxim of the law that every statute ought to be so construed as to preserve unimpaired fundamental principles.^ § 158. But for the rule of strictness required by the courts in this class of powers, great injustice would oftentimes be done, and innocent persons lose their estates. The taxes may have been paid, and by accident the evidence of the pay- ment may be lost to the owner. The officer intrusted with the collection of the tax may have neglected to make a per- sonal demand upon the taxpayer. Guardians of the estates of infants ; executors in whom the estate is vested by will, charged with the execution of a power over it; agents in- trusted with the payment of the tax, and tenants for life^ who enjoy the profits of the estate, may fail to pay the taxes as- sessed ; the collector himself may by mistake return one as delinquent who is not so in point of fact. These, and many other cases which will readily suggest themselves to every per- son at all conversant with these tax sales, oftentimes happen, and the estates of innocent persons are thus divested without their knowledge. The possibility that the power to sell may be abused, and injustice done in such cases, ought to require at the hands of the court a strict construction of, and literal com- pliance with, the law. That no statute ought to be so con- strued as to work injustice, nor so that an innocent man may be punished or endangered,; are maxims of the common law.* J 1 Pet. Cond. 425; Hartc. Cleis, 8 Johns. (N'. Y.) 41. *■ Co. Litt. aeo a; Yates v. People, 7 Johns. (N. Y.) 337, 482, 495y496. 147 § 160 NATURE OF THE POWER TO SELL LAND. § 159. There is another principle of construction which may be properly applied in this connection. It is thus laid down by Lord Holt : " Let a statute be ever so charitable, if it give away the property of the subject, it ought to be con- strued strictly." ^ Let it be remembered that the statute to which Holt applied this rule of construction was a statute discharging insolvent debtors from imprisonment ; the ordi- nary rule is, that in cases involving personal liberty, if a statute extends it, you are to construe it liberally ; if it restrains lib- erty, then construe it strictly.^ If you sell the land of one who has paid the taxes due upon it, you in effect give it away, and have not even the plea of charity as a justification or excuse for your conduct. There is still another rule of law which may be properly applied to powers of this character. Where a statute creates a new power, and at the same time provides the means and mode of executing it, those to whom the power is intrusted can execute it only in the mode prescribed.* § 160. This rule requires a rigid adherence to the directions and forms which the legislature has seen proper to lay down for the government of its agents. The power is purely arbi- trary, and this furnishes a strong reason why it should not be exercised in an arbitrary manner. If the forms required to be observed are once departed from, there is an end of all legal restraint, and the discretion of the officer is bounded by his will alone. This would be intolerable to a free people. No court would venture to sanction a doctrine which would op- erate to vest such an unbounded discretion in any officer. Discretionary power is contrary to the genius of our laws and institutions. To sustain a tax sale, where the officer, in the exercise of his discretion, has disobeyed the rule laid down by the statute for his government, is to transfer the legislative power of the State to the collector, and thus allow him to sell land for taxes, not in the manner prescribed by the written 1 6 Bac. Abr. 389; Calladay v. PUkington, 12 Mod. 513. « Cuyler v. Rust, 18 Johns. (N. Y.) 373. » Andover, &c. Tump. Corp. v. Gould, 6 Mass. 40, 44; Franklin Glass Co. V. White, 14 id. 286, 289 ; Dougherty v. Campbell, 1 Blaokf . (Ind.) 39; Journey v. State, 1 Mo. 428; State v. Cole, 2 McCord (S. C), 117. 148 DEGREE OP STRICTNESS REQUIRED. § 162 law, but according to bis private notions of wbat is rigbt, and would place at bis discretion the property of every citizen of the State.i § 161. Again, it may be laid down as a genei-al principle, subject to no exceptions, that the validity of every involun- tary alienation of laud depends upon a strict compliance with all of the substantial requisitions of the law by which they are authorized, such as the taking of private property for pub- lic use ; 2 the extending of an execution upon the land of a debtor, in the New England States ; ^ the sale of land by guardian, under an order of court ; * and also sales made by administrators of the real estate of their intestate.^ § 162. Degree of Strictness required.^ — Some cases say that the conformity to the statute must be " reasonable," or " sub- stantial ; " others use the terms " punctilious," " rigorous," " exact," " strict," or " literal." In regard to all provisions which bear the semblance of benefit to the owner, the authorities are agreed that very great strictness and exactness are neces- sary ; but in respect to other provisions, the cases speak in widely differing tones, according as the argument that officers have no authority to act except in the way named in the law, and if they deviate from the statute they depart from their au- thority, and so fail to pass any title, or the counter-argument, that failures to conform to the law in respect to provisions in which the owner has no interest do not affect him, and he should not be allowed to take advantage of them, but only the State whose provisions are broken should have a right to object in such cases ; and that too great strictness in such cases defeats the very object of the law, and punishes the very parties who were injured by non-conformity to the statute, viz., the State and her assignee. The best rule seems to be that 1 Register v. Bryan, 2 Hawks (N. C), 17. " lie Flatbush Avenne, 1 Barb. (N. Y.) 286. » Wellington v. Gale, 13 Mass. 483; Metcalf v. Gillet, 5 Conn. 400; Morton V. Edwin, 19 Vt. 77; Sargent ». Peirce, 2 Met. 80. * Atkins V. Kinnan, 20 Wend. 241. ' Smith r. Hileman, 2 El. 323. « §§163-166.. 149 § 164 NATURE OP THE POWEE TO SELL LAND. provisions designed merely to secure order and system in tlie work, or the information of the officers, are directory as far as the owner is concerned. When the statute directs an act to be done, or prescribes the form, time, or manner of doing an act, great care should be taken to conform exactly to the provisions of the law. Some courts take every opportu- nity of declaring a tax title void upon the slightest variation of time or form. Others look on such titles more lenientJy . and reasonably, and apply to them rules of decision similar to those in use in other departments of law, making the sub- stance of things the true object of the law. It is hardly reasonable to require an exact and punctilious compliance with the law in order to support tax titles. The State pur- ports to give the purchaser a title, and the mere mistakes or imperfections in the action of its agents, of such character as is incident to all work done by human hands, should not preju- dice the buyer, unless in the interest of the owner, and with many provisions the party interested in defeating a tax title could have no concern whatever ; they were not made for his protection, and his interests are not affected by their observance or non-observance, and he should not be allowed to complain of a failure to follow such provisions. When no particular mode of doing an act is prescribed, any mode is sufficient that accomplishes the object with reasonable certainty. § 163. A substantial compliance with all provisions of law designed for the benefit of the taxpayer is a condition prece- dent to the validity of the tax.* Where the law says that a eopi/ shall be issued, the substitution of the original will not vitiate the proceedings, nor will the failure of the collector to make return of the order of sale in due time as required by law. Such objections are merely technical. If the law has been substantially complied with, it is enough.^ § 164. One judge remarks that the proceedings must be " strictly regular."' Another, that " a strict compliance with 1 Westfall V. Preston, 49 N. T. 349 (1872). " Brien v. O'Shaughnesy, 3 Lea, 727, 728 (1879). » Hughey's Lessee v. Horrel, 2 Ohio, 231. • 150 DEGREE OP STRICTNESS REQUIRED. § 165 all the prerequisites of the statute is considered necessary." ^ Another, that " great strictness is required, and every sub- stantial requisite of the law must be shown to have been com- plied with." 2 Another, that " it must appear that the provi- sions of law preparatory to and authorizing such sale have been punctiliously complied with." * Another, that " a mi- nute conformity to every particular of the several acts of the assembly is necessary to pass the title." * Another, that with- out a " literal performance " of the requirements of the law the deed is " mere waste paper." ^ Another, that " the author- ity must be strictly pursued from the beginning to the end. If any material link in the chain be wanting, the whole proceed- ing will fall to the groimd."' Another, that "in order to make a good title to land under a sale for taxes, great strict- ness has always been required in the observance of statute requirements. It has sometimes been said that a literal com- pliance with the statute provisions by all the ofi&oers con- nected with the proceedings is a condition precedent to the passing of any title. Perhaps the term literal, in its con- fined sense, is rather too strong. A clear and strict compli- ance has always been held indispensable, even in regard to matters which but for the statute would appear to be of no importance." ^ § 165. Another, that the person invested with the power to sell " must pursue with precision the course prescribed by "law, or his act is invalid." Again, the course prescribed " ought to be exactly observed." * Another, that " a tax deed cannot be read in evidence, without proof that the substantial 1 Isaacs t>. WUey, 12 Vt. 674, 677; Smith v. Bodfish, 27 Me. 289, 295. And see Parker e. Overman, 18 How. (U. S.) 137, 143. « Blakeney ». Ferguson, 8 Ark. 272, 277; RonkendorfE v. Taylor's Lessee, 4 Pet. (U. S.) 349. » Brown v. Veazie, 25 Me. 359, 362; Phillips v. Phillips, 40 id. 160. • Young's Lessee v. Martin, 2 Teates (Pa.), 312; Shearer v. Woodburn, 10 Pa. St. 511. • Bush V. Davison, 16 Wend. (N. Y.) 550, 554. • Doughty i>. Hope, 3 Denio (N. Y.), 594, 599. T Langdon v. Poor, 20 Vt. 13, 15. 8 Thatcher v. Powell, 6 Wheat. (U. S.) 119. 151 § 166 NATUBE OP THE POWER TO SELL LAND. requirements of the law have been complied with." ^ Another, that " it is a condition precedent to the passing of any title, that the proceedings of the officer should be in strict and literal compliance with the requirements of the statute." ^ And another, that every requirement of the law, " having the semblance of benefit to the owner, must be strictly complied with." ^ These quotations are extracted from the general language of courts in giving their opinions in particular cases, and of course are to be understood with reference to the sub- ject-matter before them. The particular objections taken by counsel, and sustained by the court in those cases, will appear in their appropriate places hereafter. § 166. This general language, however, serves to show " with what uniformity and increasing jealousy the exercise of such a power has been restricted to its own specified limits." * The principle fairly deducible from the entire field of discussion upon this class of powers is, that every requirement of the law, whether substantial or merely formal in its character, and having the semblance of benefit to the owner, which the legis- lature have said shall attend the execution of the power, ought to be strictly observed by the officers intrusted with its exe- cution, or no title will pass by the sale.^ In the language of Lord EUenborough, " If the circumstances be unessential and unimportant except as they are required by the creators of 1 Games v. Stiles d. Dunn, 14 Pet. (U. S.) 322. « Judevine v. Jackson, 18 Vt. 470, 472. » Sharp V. Johnson, 4 Hill (N. Y.), 92, 99; Corwin v. Merritt, 3 Barb. (N. Y.) 341, 343; Atkins v. Kinnan, 20 Wend. (N. Y.) 249; McDonough V. Gravier's Cur., 9 La. 531, 546; Kneeland v. Milwaukee, 18 Wis. 431. Proceedings on tax sales are strictissimi Juris. Kelsey v. Abbott, 13 Cal. 609; Lachman v. Clark, 14 id. 131. All the provisions of the statute must in their substance be strictly pursued: Russell v. Mann, 22 id. 131 (see Moss v. Shear, 25 id. 44) ; in substance, if not literally. Lain t>. Cook, 15 Wis. 446. Statute to be rigidly pursued: Coucy v. Cummings, 12 La. Ann. 748 ; strictly: Stierlen v. Daley, 37 Mo. 483 ; strictly as to sub- stantial requirements. Scammon V. Chicago, 40 111. 146. The provisions of a municipal charter as to mode of assessing and collecting taxes must be substantially pursued. Powell v. Madison, 21 Ind. 335. * Powell V. Tuttle, 3 N. Y. 396, 401. » See Newell c. Wheeler, 48 N. Y. 486. 152 DEGREE OP STRICTNESS REQUIRED. § 166 the power, they can only be satisfied by a strictly literal and precise performance.- They are incapable of admitting any substitution, because these requisitions have no spirit in them which can be otherwise satisfied ; incapable of receiving any equivalent, because they are in themselves of no value." ^ Similar language is used by the Supreme Court of Vermont in reviewing the strictness required in tax sales : " It is enough for us to inquire what the legislature have said, supposing that their intentions were made known by the terms they have used, and not indulge in any fanciful conjectures as to their meaning, or to substitute something else in lieu of what they have enacted." 2 Regulations not for the protection of the taxpayer, but for the information of the lister or to promote method, are directory .^ In noticing an omission of the ofii- cer, contrary to the literal import of the law, the Supreme Court of Maine say, " This may not have been productive of any inconvenience to those interested in their doings, but it was a departure from the line of duty marked out for them to pursue, which may be regarded as in strictness affecting the authority of the collector to make sale of the premises."* The Supreme Court of Massachusetts, in speaking of one of the requirements of law, say, " If we could discover neither the necessity nor use of this provision of the law, it would not be for us to dispense with it." ^ In Isaacs v. Wiley,® the col- lector failed to give a bond as required by law, and for this defect in the proceedings the sale was held void ; the court remarking : " We hold the giving of a bond, and such a bond as the statute requires, to be indispensable to pass the title, not because we consider that the public, or the landholders liave any indirect interest even in the security which it affords, but because a strict compliance with all the prerequisites of the statute is considered necessary in this class of cases in order to pass the title." Perhaps the very strongest illustra- tion of the strictness required in these cases is to be found in * Hawkins ,v. Kemp, 3 East, 410. « Sumner v. Sherman, 13 Vt. 609, 612. » WiUard v. Pike, 59 Vt. 202. * Brown v. Veazie, 25 Me. 359. « Thurston v. Little, 3 Mass. 429, 432. • 12 Vt. 674, 677. 153 § 166 NATUEE OF THE POWER TO SELL LAND. the case of Brown v. Dinsmoor.^ There, the question was whether, in- listing the lajid for taxation, the name of the owner, or the description of the land, or both, should be in- serted in the list. Such was the language of the statute, that it was susceptible of either construction ; and the court held that the insertion of both the name and description was nec- essary. Thus much with regard to the degree of strictness required in tax sales. 1 3 N. H. 103. 154 CHAPTER IV. OP THE ELECTION AND QUALIFICATION OP THE SEVERAL OPPICERS WHO HAVE ANYTHING TO DO WITH THE EXECUTION OP THE POWER. § 167. Summary of the Subject.^ — The official acts required bj the law may be performed (1) By a mere intruder, one who acta without color of title to the office ; ^ or (2) By one who is an officer de faeto,^ exercising the functions of the office under color of title, by election, appointment, or usage and acquies- cence, but whose title nevertheless is not legally perfect; or (3) By an officer dejure,* i. e., one whose title to exercise the functions of the office and receive its emoluments are per- fect against all the world. It can never be sufficient to a tax title that the required ceremonies have been done by one of the first class ; it is always sufficient if they are performed by one of the third class : and as to the second class there is conflict, — some authorities holding that the general rule ^ by which the acts of a de facto officer are valid in favor of interested third persons, and that the title of such officer is not to be questioned in any suit to which he is not a party, shall be applied to the proceedings under tax laws <^80 that such facts as that the officer did not give bond or take oath in exact conformity to law will not defeat the purchaser's title) ; while other cases ® hold that tax titles are an exception to this general principle, and require the pur- chaser to prove the due election and qualification of the offi- cer, that is, that he is a de jure officer^ This conflict arises from the opposition of two principles : The first is, that an inquiry into the legality of the appointment and qualification of the officers with which the public has to dea.1 cannot practi- 1 See Index, " Officers," " Strictness," etc. « § 169. ' § 170. * § 169, 6 §§ 171^ 184. e § 173. 155 § 168 ELECTION AND QUAUPICATION OP OFFICERS, ETC. cably be required of that public ; it would be an intolerable burden to compel every one dealing with an officer to inquire into the legality of his appointment and qualification. The people must be protected in acting upon such inferences as men of prudence habitually make ; and if A. has a right to infer that B. holds a certain office, and deals with B. on that basis, A. shall not be prejudiced by the fact that B. in truth did not legally hold the said office. The other principle is, that every provision of law that constitutes a factor in the tax title, in which the land-owner can possibly have any interest, must be strictly conformed to, and he is entitled to the benefit of, every guaranty ^ contained in the law con- cerning due elections, oaths and bonds, etc. The equities seem to us with the first principle ; the security of com- mercial interests and the unimpeded despatch of business demand such a rule ; and the same weighty reasons upon which rests the upholding of the acts of de facto officers in favor of third persons in every other branch of law apply in the case of tax sales. If the substajice is present, if cause exists for sale of the land, and the proceedings are regular, it seems that no damage could come to the land-owner by reason of the fact that the officer was not perfectly qualified ; and if damage should thereby arise, it might more properly base a suit against the officer or the government than a de- feasance of the rights of an innocent third party. The policy of giving security to natural inferences and anticipations in commercial transactions, and thus i&Yoving prevision, — a qual- ity most powerful in advancing civilization and wealth, the encouragement of which should be one of the dearest objects of the law, — adds its great weight in favor of applying the de facto rule to tax sales under the same circumstances as to other transactions. § 168. The Citizen has a Right to the Frotection that Official Responsibility affords. — It is a general principle of law, that whenever a right is claimed under the proceedings of one who purports to have acted in an official capacity, the fact that he who did the act upon which the right is based 1 § 168. 156 WHAT CONSTITUTES AN OFFICER. § 169 was a public oflBcer, must appear. This is especially appli- cable to a case where a title to real estate is to be divested under the authority of a statute and through the interven- tion of a public officer. The statute being the authority, and the officer the agent to execute it, and no one being empowered to do the act except the person specially desig- nated in the law for that purpose, it follows that a stranger to the power cannot execute it. The power is conferred upon the officer, not the man. It is an official, not a per- sonal trust. It does not rest upon confidence, but upon official responsibility. Hence the only security of the pro- prietor of the estate is in the official character of the person to whom the power is committed. This security mainly de- pends upon the responsibility of the officer to the govern- ment, the sanctity of his oath of office, and his liability to those whose rights are violated by his wrongful acts. It may therefore be safely affirmed, as a general rule, that the party claiming title under a tax sale must show that the acts required to be done under the statute, in order to divest the title of the former owner, were performed by the officers of the law, and not simply by persons who assumed to act in an official capacity. The citizen is entitled to all the pro- tection against fraud, rapacity, and abuse of authority, in the sale of his property, which official responsibility can secure.^ § 169. 'What Constitutes an OfBcer. — It therefore becomes an important question to ascertain who is an officer within the meaning of this rule. A resort to general principles is necessary, in order to determine the question, especially as the authorities are conflicting. An office is defined to be a public charge or employment, and he who performs the duties of that office is an officer.^ There is no such thing known to the law as an office de facto ; ^ nor can there exist such an anomaly as an officer de jure and one de facto in the possession of an office at the same time.* But it very 1 Birch V. Fisher, 13 Serg. & R. (Pa.) 208; Payson v. Hall, 30 Me. 319. 2 United States v. Maurice, 2 Brock. C. C. (tJ. S.) 96, 102. » Hildreth's Heirs v. Mclntire's Dev., 1 J. J. Marsh. (Ky.) 206. * Boardman v. Halliday, 10 Paige (N. Y.), 223. 157 § 170 ELECTION AND QUALIFICATION OP OFFICERS, ETC. frequently happens that one haa the title, while another is in possession of the office under a claim of right. The dia- timetion between an officer de jure — one who is de facto such — and a mere usurper is well known and clearly settled, and the consequences naturally arising from these distinctions are equally well settled. An officer de jure has the legal title to, and is clothed with, all the power and authority of the office. He has a title against the world, to exercise the functions of the office and receive the fees and emoluments appertaining to it. He is responsible to the government and injured parties when he abuses his trust or transcends his authority ; and his acts^ when within the scope o£ that authority, cannot be questioned by the citizen or any depart- ment of -the government.^ § 170. Au Officer de facto is one who comes in by the forms of an election or appointment, but in consequence of some informality, omission, or want of qualification, or by reason of the expiration of his term of service, cannot maintain his possession when called upon by the government to show by what title he claims to hold the office. He is one who exercises the duties of an office under claim and color of right ; being distinguished on the one hand from a mere usurper, and on the other from an officer de jwe? The mere claim to be a public officer, or the performance of a single or even a number of acts in that character, will not constitute an officer de facto ; there must be some color to the claim, under an election or appointment, or an exercise of official functions, and an acquiescence on the part of the public for a length of time, which would afford a strong presumption of a colorable right.^ The definition of Lord 1 McGregor v. Balch, 14 Vt. 428. 2 See Schenok v. Peay, 1 Dill. C. C. (U. S.) 267; where it is held that one appointed to an office without authority, and who never performed any official duty as such officer, and never had the reputation of being such officer, is not an officer de jure or de facto. » McGregor v. Baloh^ 14 Vt. 428; Aulanier o. Governor, 1 Tex. 653; Plymouth «. Painter, 17 Conn. 585; Tucker o. Aiken, 7 N. H. 113, 140; Margate Pier Co. «. Hannam, 3 Barn. & Aid. 266; s. o. 5 Eng. Com. Law, 278; Wilcox v. Smithy 5 Wend. 231, 234. 158 EFFECT GIVEN TO ACTS OF A DE FACTO OFFICEE. § 171 Ellenborough i» probably more accurate and expressive than any other : " An officer de facta is one who has the reputar tion of being the officer he assumes to be, and is yet not a good officer in point of law." ^ He who intrudes himself into an office which is vacant, or ousts the incumbent, with- out any color of title whatever, and assumes to execute the duties of the office, is a mere usurper, and his acts are void in all respects .2 Where the law requires voters to be regis- tered, and an election is held without registration of any voters, officers entering on their functions under color of such election are de facto officers, and until displaced may exercise all the powers of officers de Jure, But where a board of appeal from the assessors, having also power to appoint the assessors, appoints them from its own member- ship, the assessors are not officers de-facto. It cannot be. that an officer having or sharing the power of appointment to another office can become the incumbent of the latter, d& jure or de facto. " The color of right, if color it can be called, is its own destroyer ; it fades away without exposure to anything extrinsic to itself. That he was ineligible, ap- pears on the very resolution by which he was appointed. The moment he produces his commission, it is seen that one of his offices, looked at in the light of the law, is incompatible with the other, and that he has emerged, so to speak, from his own belly." 3 The scheme of the tax law required two groups of men : one to fix the rate, appoint the assessors, and act as a board of review ; the other to assess. The discretion of the board must be reserved for appeals, not exercised in the first instance in assessing. § 171. Effect given to the Acts of a de facto Officer. — They are invalid in his own favor, but valid in favor of interested and innocent third parties. This rule is necessary to avoid putting upon the public the insufferable burden that would 1 The King v. Bedford Level Coiporation, 6. East, 368. For a general review of the English and American authorities, and a comprehensive defi- nition of an officer de facto, see State v. Carroll, 38 Conn. 449. « Tucker v. Aiken, 7 N. H. 113, 140. » Hawkins ». Jonesboro, 63 Ga. 528, 529 (1879). 159 § 173 ELECTION AND QUALIFICATION OF OFFICERS, ETC. result if every one dealing with an officer were obliged to inquire and decide as to the legality of his holding. The consequences naturally arising from the distinction between an officer de jure and one de facto are well settled. An officer de jure is clothed with all the power and authority appertaining to the office, and his acts, within the limits of his authority, cannot be questioned anywhere ; while the acts of an officer de facto ure valid so far only as the rights of the public or, third persons having an interest in such acts are concerned. Neither the title of such an officer, nor the valid- ity of his acts as such, can be indirectly called in question in a proceeding to which he is not a party. The effect of this rule is, to render the acts of an officer de facto as valid and effectual in favor of third persons as though he was an officer dejure. The interests of the community imperatively require the adoption of such a rule. The affairs of society could not be conducted upon any other principle ; without it, there would be an entire failure of justice. To deny validity to the acts of such officers would lead to confusion and insecurity in public as well as private affairs, and thus oppose the' true policy of every well-regulated state. § 172. Besides, it would be unreasonable and oppressive to compel those transacting business with a public officer, before they put faith in his official acts, to go into a minute exami- nation of all the evidences of his title to the office, and see that he has complied with all the necessary forms of law. It would constitute every citizen a judge of official titles. He must look to the Constitution to see that the officer was eligi- ble to an election or appointment, to the statute to ascertain when, where, and how the election or appointment is required to be made, and to the poll books and archives of the state for the purpose of ascertaining the facts ; and then determine at his peril the mixed question of law and fact involved in the ascertainment of official character. § 173. Again, when the controversy comes up collaterally, the officer whose title and acts are drawn in question is not a party to the record, nor can he be legally heard in the discus- sion of the issue, although the decision would as effectually 160 DE FACTO OFFICEES. § 174 decide liis title to the office as if lie were a party. This would be judging a man unheard, contrary to the principles of nat- ural justice and the policj of the law. The only appropriate mode of testing his title is by an information in the nature of a writ of quo warranto, in which, after notice and an impartial hearing, he will be ousted from the office if it turn out that he has been exercising official functions without the warrant of law. Until then he holds the office by the sufferance of the state, and the silence of the government is construed by the courts as a ratification of his acts, which is equivalent to a precedent authority. When the government acquiesce in the acts of such an officer, third persons ought not to be per- mitted to question them. § 174. From considerations like these has arisen the distinc- tion between the holding of an office de facto and de jure, — a distinction of the greatest importance for us to bear in mind. It is therefore an established principle in our system of juris- prudence, that the acts of an officer thus having color of title, in the exercise of the ordinary and accustomed functions of his office, are valid in respect to those persons who may be interested in his acts ; while as respects himself, those acts are invalid.^ It will be observed that the authorities do not proceed upon the ground that the claim of an individual to be a public officer, and his acting as such, is merely prima facie evidence that he is an officer de jure ; but the principle they establish is this : that an individual coming into office by color of an election or appointment is an officer de facto, and his acts in relation to the public or third persons are valid until he is ousted by quo warranto, although it is clearly made to » Plymouth ». Painter, 17 Conn. 585; WDcox v. Smith, 5 Wend. (N. Y.) 231, 234; Douglass ». Wickwire, 19 Conn. 489; Schlenoker v. Bisley, 4 lU. 483; Pritchett ». People, 6 id. 529; Fowler v. Beebee, 9 Mass. 231; Gilmore v. Holt, 4 Pick. (Mass.) 258; Hoagland v. Culvert, 20 N. J. L. 387 ; Parker v. Baker, 8 Paige (N. Y.), 429; People, ex rel. Bush, v. Col- lins, 7 Johns. (N. Y.) 549, 554; Mclnstry v. Tanner, 9 id. 135; Burke v. Elliott, 4 Ired. (N. C), 3.55; Den d. Gilliam f. Reddick, Id. 368; McKim V. Soniei's, 1 Pa. 297 ; Farmets' and Merchants' Bank v. Chester, 6 Humph. (Tenn.) 458; Brush v. Cook, Brayt. (Vt.) 89; Adams o. Jackson, 2 Aik. (Vt.) 145; McGregor v. Balch, 14 Vt. 428. VOL. I.— II 161 § 176 ELECTION AND QUALIFICATION OP OPPICEKS, ETC. appear that his appointment or election was illegal. His title shall not be inquired into collaterally .^ § 175. The rule, it will be perceived, is designed simply to protect the public by preventing a failure of justice, and the great public mischief which might otherwise be justly appre- hended. It gives to the officer de facto no immunities whatever, confers upon him no rights, and shields him from no responsi- bility. When sued for moneys received by him colore officii, he cannot avoid liability by showing that he was only an officer de facto? The same rule applies where an action is brought against him for malfeasance, misfeasance, or nonfeasance in- office.* On the other hand, when he attempts to enforce a legal right which appertains solely to official character, — for instance, the fees of office conferred by law, — his right as an officer de jwe is put in issue, and he cannot recover without proving a legal title to the functions and emoluments of the office ; * and when he justifies an act complained of, purport- ing to be done in his official capacity, it is necessary for him to aver and prove in his defence, not only that he was an act- ing officer, but that he was an officer in fact and by right, duly elected or appointed, commissioned, and qualified to act as such. The reason is, that the officer himself is bound to know whether he is legally an officer ; and if he attempts to exercise the functions of an office without authority, he acts at his peril.^ § 176. We have thus seen that the acts of an officer de » Wilcox V. Smith, 5 Wend. (N. Y.) 231, 234. " United States v. Maurice, 2 Brock. C. C. 96. » Fetterman v. Hopkins, 5 Watts (Pa.), 539. * Id. But in a " suit by a collector of taxes to recover a tax, it is suf- ficient evidence of his authority thus to sue, prima facie, for him to show that he has acted as such officer in regard to that tax; and it is then open for the defendants to show that he is not duly authorized. • All who are proved to have acted as such (that is, as public officers) are presumed to have been duly appointed until the contrary appears.' " Kent v. Atlantic De Laine Co., 8 R. I. 305; McGahey v. Alston, 2 Mees. 8e W. 206, 211; 1 Greenl. Ev. § 92. 6 Schlencker o. Risley, 4 HI. 483; Blake v. Sturtevant, 12 N. H. 567; Cummings p. Clark, 15 Vt. 653; Colburn p. Ellis, 5 Mass. 427. 162 DE FACTO OFFICERS. § 177 faeU) are valid, except only in cases of direct injuries to their fellow-citizens.i Such, then, are the rule, the exceptions, and the reasons upon which they are founded. Is there anything in the nature of the power to sell land for the non-payment of taxes, or in the legal character of those to whom the power is confided, which prevents the application of the rule in question to their acts ? They exercise a special statutory power, — one not coupled witii an interest in the thing upon which the power operates. This is true of every power with which a public officer is clothed. Take the case of a sheriff ■ or coroner selling land under execution. They act under a special authority. Their right to sell depends upon the ex- istence of a judgment rendered by a court having competent jurisdiction, the issuing of a valid execution thereon, and its direction to the proper official personage to whom the law has intrusted the power of sale. Yet in this class of cases it has been repeatedly held that if the sale is made by an officer de facto, it is valid and effectual to divest the title of the Judgment debtor. Are not all those upon whom the law confisrs the power to list the land, assess the tax, and enforce its collection, officers? Chief Justice Marshall says that " An office is a public charge or employment, and he who performs the duties of that office is an officer." There is nothing, then, in the nature of the power, or in the legal character of the persons who are deputed by law to exercise it, which withdraws their acts from the operation of the rule that the acts of an officer de facto are valid ; and the reason is equally applicable to the acts of all officers. § 177. In Bucknam v. Ruggles,^ which was a writ of entry, the validity of a levy on land, made by a deputy sheriff de facto, was drawn in question; and the counsel who argued against tlie validity of the act attempted to draw a distinction, limiting the rule to the acts of such officers as might be styled political, and who exercise a portion of the sovereign power. To this the court replied : " None of the books will warrant 1 Commonwealth v. Fowler, 10 Mass. 290, 301; People v. Collins, 7 Johns. (N. Y.) 549, 554. " 15 Mass. 180. 163 § 179 ELECTION AND QUALIFICATION OP OFFICERS, ETC. such a limitation. The rule as laid down extends to all public officers ; nor can we discern any reason for restraining it." § 178. Some authorities except tax titles from the de facto rule, on the grounds that only when the law is obeyed in all respects can any authority arise to pass title to the land, and that the provisions for the qualification of officers by giving bond, taking oath, and so forth, give an additional security to the land-owner, and so come within the class of provisions which all agree must be strictly followed. Upon a review of the authoi-ities, it will be seen that while the general rule is conceded, that the acts of an officer de facto are valid whenever third persons are interested in the act, yet many of the authorities affirm that the great strict- ness uniformly, exacted in the divestiture of estates under the taxing power of the government demands an exception to the rule, and requires proof that those who purport to act in an official capacity in the conduct of these sales were offi- cers de jure ; in other words, that a regular election or ap- pointment, and a compliance with all the conditions precedent, which must be shown by the officer himself when his title is questioned in a quo warranto, — such as the taking of the oath of office,^ the execution of an official bond, etc., — must be clearly proven by the party claiming title under the tax sale ; and that the usual presumptions caimot be indulged in by the courts when the proof of official character is wanting.^ § 179. In Pike v. Hanson^ which was an action of trespass, 1 The following transcript of a record, "Oxford, ss., March 3, 1862, personally appeared William Woodsum, and took the oath necessary to qualify him to discharge the duties of clerk of the town of Peru for the ensuing year, according to law, before me, Samuel Holmes, Moderator. A true copy of certificate, William Woodsum, Town Clerk," held to be sufficient evidence of compliance with R. S. ch. 3, § 17; and that the oath prescribed in § 14 was administered. Greene v. Lunt, 58 Me. 518. ^ Birch V. Fisher, 13 Serg. & R. (Pa.) 208; Pike v. Hanson, 9 N. H. 491; Ainsworth «. Dean, 21 N. H. 400; Cardigan Proprietors «. Page, 6 id. 182; Payson v. Hall, 30 Me. 319; Coit v. Wells, 2 Vt. 318; Isaacs V. Wiley, 12 id. 674; Alvord v. Collin, 20 Pick. 418. ' 9 N. H. 491. In this case it is to be observed that the question' arose directly in a suit against the officer, and not collaterally between third parties. 164 DE FACTO OFFICKBS. § 180 the defendant iustified as a collector of taxes, under an assessment and warrant to collect, it appeared that the assessor had not taken and subscribed the oath required by statute before making the assessment. The court held that the collector could not justify upon this state of facts, remark- ing that "this provision of lihe statute cannot be deemed merely directory. It was designed for the protection and security of the citizen, whose rights are in some degree in the discretionary power of the assessors. The legislature in- tended, by the oath thus formally to be taken and subscribed by thQ assessors, to guard as far as possible against all abuse of this discretion, and we cannot dispense with so important a requisition." This doctrine was reaffirmed in Ainsworth v. Dean,^ and a sale of land for taxes held void because there was no evidence that the assessment was made under the sanction of an oath. And in Birch v. Fisher ^ the evidence showed only that the persons who made the assessment were recognized as officers by the county commissioners, and that they acted as such. The sale was held void. By the court : " Will it be pretended that such an assessment would be valid, or that a sale under it would confer any right ? An assess- ment by persons neither elected nor sworn would be an assessment, not by officers de facto, but by intruders who came in without color of authority. The evidence offered was the book of the county commissioners showing the names of the assessors, and the certificate of the clerk that he had searched the files for the election returns and the official oaths of the assessors, and found none. The election returns ought to have been produced, or their existence established and absence accounted for. The evidence offered was not the best that could have been produced." § 180. In New Hampshire, the law required that the ap- pointment of the collector must be in writing and recorded. This requirement was not conformed to, and the collector's sale held void for that reason.^ In another case it did not appear, from the return of the selectmen who called the town 1 21 N. H. 400. « 13 Serg. & R. (Pa.) 208. 8 Ainsworth v. Dean, 21 N. H. 400. 165 § 180 ELECTION AND QUALIFICATION OF OFFICHtS, ETC. meeting at which the collector was appointed and a portion of the tax raised, when or where the notice was posted up. On the back of the warrant notifying and warning the free- holders was this certificate: — " March 12, 1822, lawfully posted a true copy of the within articles. s.'^JleT'!'^'^'"*'"'"" The sale was held void. The court say that "when meet- ings are warned by selectmen, they must make a proper re- turn of their doings.^ They stand in that business in place of constables, and their return must show, not simply that notice has been given, but that such notice as the statute directs has been given. They are public officers authorized by law to warn town meetings. It is their duty to make a return of their doings. If they make a false return, they are liable to an action in favor of him who may thereby be in- jured; and in our opinion their return is in this instance the only evidence which can be admitted to prove what they have done. In our opinion much greater mischief will result from giving countenance to the careless and imperfect returns which have already been made, than from holding a legal and sufficient return to be essentially necessary in all cases. It is neither safe nor expedient to leave the title to real estate to depend in any case upon the uncertain and fading memory of mortal man. It is not the policy of this State to do so. All conveyances by one man to another must be in writing} when an execution is extended upon land, there must be a re- turn in writing, otherwise it is without effect ; when lands are sold for taxes, the former owner ought to be able to learn from the records of the proceedings whether his title has been lost. He ought not to be put to the expense of a law- 1 The certificate of the sheriff that he has posted notices of election in ten public places in the. township, held not to be defective for not speci- fying the places; held, further, tbat such certificate is prima facte evi- dence that notices have been posted in ten public places in the township. Detroit, Eel R. & 111. R. Co. v. Bearss, 39 Ind. 598, 603. 166 DE FACTO OFFICERS. § 182 suit to learn whether his land has been legally sold. It is, in our opinion, much better that a few titles should now fail for this defect, than that all titles of this description should be left in doubt and uncertainty." ^ § 181. It was held in Payson v. Hall^ that in order to main- tain title under a tax sale it is not sufiBcient to show that the person making the sale had been chosen collector, and acted in that capacity ; but to render the sale valid, it is indispen- sable that he take the oath of office prescribed by law. The reasoning of the court was, that " one injured by the miscon- duct of a collector of taxes cannot be protected by a resort to his official bond for redress, that being given for the secu- rity of the town alone. He must be permitted to avoid the acts of one assuming, without lawful authority, to be a col- lector, or be in many cases without a remedy ; if a person without election or legal qualification could act as a collector of taxes, and as such make sale of an estate, and the produc- tion of a deed made by him in that capacity were to be con- sidered as effectual without proof of his election and qualifi- cation, there would be no effectual security for the faithful discharge of his duties. Such was not the intention of the legislature. The party is required to produce the collector's deed, not the deed of a person assuming without right to act in that capacity. The taxpayer is entitled to have his inter- ests protected in the sale of his property by the obligations imposed by the official oath." ^ § 182. The same doctrine was maintained in New Hamp- shire ; * but the propriety of it is questioned in a later case.* And in Adams v. Jackson,® which was an action of ejectment, wherein the plaintiff claimed title under a tax-deed made by 1 Cardigan Proprietors v. Page, 6 N. H. 182. » 30 Me. 319. 8 By law, the board of assessors cannot consist of less than three per- sons, who shall be qualified by taking the oath prescribed; and when it does not appear that more than two were thus qualified and acted, the tax assessed by them is illegal. Williamsburg v. Lord, 51 Me. 599. * Cardigan Proprietors v. Page, 6 N. H. 182. See likewise Jaquith ». Putney, 48 N. H. 138, 140. * Tucker v. Aiken, 7 N. H. 113, 131. 8 2 Aik. (Vt.) 145. 167 § 183 ELECTION AND QUALIFICATION OP OFFICERS, ETC. a constable, the appointment of the constable was shown, but the proof was defective as to whether he took the oath of oflBce. The inferior court held the sale invalid, but the judg- ment was reversed. In Coit v. Wells,^ which was an action of ejectment, the defendant claiming under a collector's sale for a special road tax levied by the commissioners of high- ways, it appeared that the collector did not give bond until the day of sale ; and the only evidence of that fact was a receipt by the commissioners, dated the day of the sale, acknowledg- ing that they had received " such a bond as the law requires." The statute required that the collector, before entering upon the duties of his office, should give bond with security to the commissioners, in at least double the amount of the tax, con- ditioned that he would faithfully discharge the duties of his office. Sale held void. By the court: "The bond is to be the security that the money received shall be paid to the com- missioners, and go to subserve the objects of the tax, that the land-owners may not pay their money and yet fail of the roads, which are intended to operate to their benefit by add- ing value to their lands. Now the collector, as soon as he receives his rate bill and warrant, proceeds to receive the money for the taxes, and advertises his sale. These are offi- cial acts, and he must give bond before he commences these acts, or his sales are void. In such cases the advertisement is not the act of the collector, but of the individual, and is of no validity." § 183. So in Isaacs v. Wiley ,^ where the defendant claimed title under a sale for taxes, it appeared that the collector who made the sale had not given such a bond as the law required, and the sale was held a nullity, the court saying : " The argu- ment which has been attempted, that as the bond is for the security of the committee alone, any bond to their acceptance should be held a compliance with the statute, is not a little plausible, but at the same time is unsatisfactory. We hold the giving of a bond, and such a bond as the statute requires, to be indispensable to pass the title, not because we consider that the public, or the land-holders, have any indirect interest even 1 2 Vt. 318. 2 12 Vt. 674. 168 DE FACTO OFFICERS. § 184 in the security which it affords, hut because a strict compli- ance with all the prerequisites of the statute is considered ne- cessary, in this class of cases, in oi'dei* to pass the title." A very reasonless reason. Under § 13, art. xi., Const, of Cali- fornia, providing that " taxation shall be equal and uniform throughout the State. All 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," it has been held that a tax in oi^er to be valid must rest upon an assessment made in the mode pre- scribed by law by an assessor elected by the qualified electors of the district, county, or town, in which the .property is taxed for State, county, or town purposes ; and an assessment made by an assessor elected by the qualified electors of the city and county of Sacramento is not a sufficient basis for the levy of a ta? in the city of Sacramento for city purposes.^ § 184. The better opinion applies to tax sales the general de facto rule. A blind following of the rule that every pro- vision of law must be complied with, that the authority must be strictly pursued, without looking to see if justice is sub- served by applying the rule to this class of cases, is not the perfection of judicial action. If the de facto officers do not properly assess and advertise the property, etc.,- the sale is void, of course ; but if they do everything in reference to the land just as de Jure officers would have to do, the land-owner is not affected by the lack of oath or bond or other qualifica- tion, and the just rights of the innocent purchaser should not be defeated unless justice to some one else requires it, which in such circumstances is evidently not the case. The Supreme Court of New Hampshire, in Tucker v. Aiken ,2 remark, that " the general principle undoubtedly is, that the acts of an officer de facto are valid so far as the public or the rights of third persons are concerned ; and that the title of such an officer cannot be inquired into in any proceeding to > People ». Hastings, 29 Cal. 449; Reily ». Lancaster, 39 Cal. 354, 358. 2 7 N. H. 113, 131; Smith ». Messer, 17 N. H. 420. 169 § 185 ELECTION AND QUALIFICATION OP OFFICERS, ETC. which he is not a party. But proceedings founded upon the assessment and collection of taxes have been supposed to form an exception to this rule ; or rather a different rule has been supposed to be applicable to such proceedings. The prin- ciple is expressly laid down, that in order to maintain a title to land sold for taxes, or to justify a distress, every substan- tial regulation of the law must be shown to have hpen com- plied with ; and it seems to have been understood that this principle included and required proof of the due election and qualification of all officers concerned in the assessment and collection of the tax. There seems to be no sound distinction between the acts of a collector de facto in making a distress or sale of land in order to satisfy a tax, and those of a sheriff- in the seizure and sale of property under attachment or exe- cution." That such a distinction exists is practically denied by the authority of other cases.^ The application of the de facto olBcer rule to tax cases has been fully recognized in Mississippi.^ But some doubt is thrown on the rule where the officer gave no bond.^ § 185. It must be confessed that the reason of the rule giving effect to the acts of an officer de facto and the weight of authorities do not sanction a departure from the general principle which controls in all other cases ; and the better opinion is, that where a tax is assessed, and the proceedings are conducted by officers de facto, the sale will be maintained. But where a mere usurper or intruder into an office con- nected with such proceedings executes any part of the au- thority given by law to officers de jure and de facto, his acts are nullities, and no title can be acquired under the sale. A minute examination of the adjudged cases will doubtless be more acceptable to the profession than any general state- 1 Sheldon's Lessee v. Coates, 10 Ohio, 278; Downer v. Woodbury, 19 Vt. 329; Hale v. Gushing, 2 Me. 218; Spear v. Ditty, 8 Vt. 419; Adams v. Jackson, 2 Aik. (Vt.) 145; Ronkendoi-S v. Taylor's Lessee, 4 Pet. (U. S.) 349. See also Allen v. Armstrong, 16 Iowa, 508, 515. 2 Wolfe V. Murphy, 60 Miss. 1. ' See Vasser v. George, 47 Miss. 713, and the notice of this case in Powers V. Penny, 59 id. 5. 170 DE FACTO OFFICERS. § 188 ments of reasons and conclusions which may be deduced from them. § 186. In Watkins v. Inge ^ it was held that the acts of a de facto county treasurer, assessor, or collector are valid so far as the rights of third persons are concerned. The acts of an officer de facto are good as between third parties. A tax title is not invalidated because the county treasurer failed to file his bond as collector of State and county taxes within the prescribed time. Such matter cannot be raised collaterally in an ejectment suit on a tax title.^ The law requiring the filing pf a certificate of the taking of the oath by the assistant assessor is directory, and the taking of the oath may be proved by parol in case the certificate was not filed.^ The requirement of a bond from the collector is directory, being intended only for the secm-ity of the United States, and the purchaser at tax sale is not bound to show compliance with the law in this respect.* § 187. In JRonkendorff v. Taylor,^ where the sale was under the charter and ordinances of a municipal corporation, and in which the court lay down the rule of strictness as the basis of inquiry in this class of cases, it was held that in order to maintain the sale it was not necessary for the party claiming title under it to prove the appointment of the assessor who listed and valued the land ; but the court would presume, from the fact that he acted as assessor, and was recognized by the authorities of the corporation as such, that he was legally appointed.® § 188. In Sale v. Cushing "> the validity of a tax sale under 1 24 Kan. 613, 618 (1880) ; Pierce v. Weare, 41 Iowa, 381 (1875). » Stockle V. Silsbee, 41 Mich. 616 (1879). 8 Hale V. Cashing, 2 Greenl. 220 (1823). * Id. 224 (1823). « 4 Pet. (U. S.) 349. ° That, independent of the statute by which, if properly acknowledged, it is admissible without further proof, it is not necessary before intro- dncing a tax deed in evidence to prove that the pei-son by whom it was executed held the office of tax collector at the time when the sale was made, see Wetberbee v. Dunn, 32 Cal. 106. See also Campbell v. Dewick, 20 N. J. Eq. 186, 189. ' 2 Me. 218. 171 § 190 ELECTION AND QUALIFICATION OP OFFICERS, ETC. the act of Congress was questioned. The act required the assistant assessor to be sworn, and a certificate of the fact returned and filed in the collector's olfice. This was not done, but it was proven by the assessor himself that he was sworn prior to entering upon the duties of his office. The Court held the requirements directory, and that an omission to con- form to it ought not to prejudice the rights of the purchaser ; and further, there being no record of the oath, the testimony of the assessor himself was competent evidence to establish the fact that he was sworn. § 189. In Spear v. Bitty ^ it" was objected that the collec- tor's bond was insufficient, because the penalty was not equal to double the amount of the tax originally laid. By the court : " It is difficult to perceive how this irregularity, if it be such, can have any reasonable bearing upon the right of the plaintiff. The object of this bond is not the security of the land-owner against an illegal enforcement of the tax, but it is to insure a proper accountability for the tax after it is collected. It is not one of those safeguards interposed be- tween the tax-gatherer and the taxpayer, but has reference to the public interest, in due accountability for and expenditure of the tax. When this object is effected, the purpose of the law is answered. It is only necessary that it should be in double the amount of the tax on the tax bill delivered to the collector. That is the case here. Part of the taxes may have been worked out. If otherwise, the law is directory." Downer V. Woodbury 2 was an action of trespass against the col- lector, who in his plea alleged that he had given bond, but did not describe or make profert of it. On the trial it was proved that the defendant had acted as collector, and the court presumed that he had given bond as required by law. § 190. Again, in Hale v. Gushing^ which was an action of entry sur disseisin, the tenant claimed under a tax-deed made by a collector of the direct tax, levied under the act of Con- gress, and it did not appear that the collector had given bond. Sale held valid. By .the court: "The bond was intended for 1 8 Vt. 419. a 19 Vt. 329. » 2 Me. 218. 172 DE FACTO OFFICERS. § 192 the security of the United States; but as regards the pur- chaser under a sale by the collector, and the original owner of the land sold, it is a subject of no importance." The statute of Ohio provided that before receiving the tax duplicate the collector should give bond, etc., and if he failed to do so before the first Monday in August, a collector should be appointed by the county commissioners ; and the law further provided, if he neglected to file such bond within the time prescribed, the clerk of the Common Pleas Court was directed to with- hold the duplicate, which constituted the authority of th§ collector. § 191. In Sheldon's Lessee v. Coates} which involved the validity of a tax sale, it appeared tllat the collector did not file his bond until Sept. 10, 1805, that the duplicate was delivered to him on the 20th of the same month, and that no new appointment of a collector had been made by the county commissioners. Upon this point the sale was sus- tained. By the court : " In this case, as the bond was exe- cuted before any appointment had been made of a col- lector by the county commissioners, although not within the time prescribed, it would be against the whole current of the decisions of this court, in similar cases,^ to hold that the acts of the collector were void or voidable upon that ground." § 192. In Iowa, an assessor who files his bond and takes the oath of office and enters upon the discharge of his duties is an ofiicer de facto, and a party prosecuted for refusing to verify such assessor's return of his taxable property cannot escape liability by showing that such bond was informal, or any other irregularity in qualifying such assessor, and the assessor in such prosecution may show his qualification by his own oath.^ The qualification of an assessor is one of the non-essential facts of which the tax deed may constitutionally be made conclusive evidence.* In Arkansas, the sheriff being » 10 Ohio, 278. » Westerhaven v. Clive, 5 Ohio, 136; State v. Findley, 10 id. 51. * Washington v. Miller, 14 Iowa, 584. * Allen V. Armstrong, 16 Iowa, 508. 173 § 192 ELECTION AND QUALIFICATION OP OFPICEKS, ETC. required by the statute to file an affidavit on or before a cer- tain day in order to qualify him to fulfil the duties of assessor on pain of forfeiting his office, it was held that his failure so to do vitiated the assessment.^ 1 Parker v. Overman, 18 How. (U. S.) 137; but see Scott v. WatMns, 22 Ark. 556, and Twombly v. Kimbrongh, 24 Ark. 459, 474, contra. 174 CHAPTER V. OP THE LISTING AND VALUATION OP THE LAJID. § 193. Summary of the Subject. — Some confusion is apt to arise in the mind of one who reads for the first time a work upon taxation, by reason of the varying use of the terms " assessment " and " levy." The latter is properly confined to the action of the legislature (or of the council, board of super- visors, or other body to which the legislature has delegated the power), by which it is determined that a certain tax shall be collected. Sometimes it is voted to raise a certain amount by a tax evenly distributed over property of a given kind, or over all property in proportion to its value, and then when the assessors have made a list of the property in the district taxed, and of its value, the total value and the total tax easily give the rate by which to calculate the tax on any piece of property whose value is known. Sometimes the valuation is known before the levy, and the body making the levy itself decides upon the rate % of taxation which will be necessary to raise the amount required ; then the levy takes the form of an order to assess taxable property at a certain rate named. In any case a listing and valuation of taxable lands is an absolutely necessary part of the process of taxation ; ^ and this list, con- taining a description of each piece of land sufiicient to identify it,^ and its estimated value,^ together with the rate %, consti- tutes * an " assessment." A completed assessment would be the description, valuation, name of taxpayer, etc., and the precise amount of the tax against each parcel of land. The calculation and insertion of this specific amount is called the " extension of the tax," and being merely a clerical matter, the assessment is considered complete substantially without 1 § 194. « § 223. » § 285. * § 198. 175 § 193 OP THE LISTING AND VALUATION OP THE LAND. it; and since tlie rate is fixed by the "levy," it has come about that the word " assessment " is often applied as equiva- lent to " listing and valuation." We shall use the word as meaning a "listing, valuation, and extension," or merely a " listing and valuation," the rate being fixed by a levy, the two meanings being practically identical. We shall consider in this chapter the provisions of law in regard to assessments, and the strictness with which they must be followed,^ by what officers the various acts must be done,^ and how many must act when authority resides jointly in several,^ what verification * by signature,^ oath,® certificate,' etc., and what proof ^ of the assessment is necessary, in what district the land must be listed,® and the effect of a change of town, county, or State boundaries,'" the date of the assessment,^' the return and ac- ceptance qf the list,!* the description of the land,'* the legal character of the land as seated or unseated, resident or non- resident, etc.,'* in what name the land must be assessed,'® the effect of assessing a whole tract to the owner of a part,'® in what parcels the land is to be assessed," the manner of assess- ing undivided interests in the same tract,'^ the valuation," its standard,^ its annual character,^! its evidence,^ and the effect of informalities, such as the omission of the $ mark,^ the pen- alty on a taxpayer for refusing to give the assessors *a list of his property,^ the effect of omitting taxable property from the list,^ and questions relating to equalization, appeal from the assessors, notice of meetings of the board of equalization, etc.^ Running through these subjects we shall find the continual conflict of opinion resulting from the varying strength of the opposing forces of regard for the owner's rights and regard for the rights of the government and the purchaser. Where the assessment turned out to be illegal, and the collector, 1 § 197. 2 § 200. s § 201. * §§ 204, 207. 6 § 205. « § 206. ' §§ 207, 208. s § 199. » §209. i« §§ 217, 307. " § 218. " §§ 219, 220. 18 §§ 223-250; see Index, " Advertisement of Sale," and "Deed." " §§ 251, 524. 16 §§ 256-277. 19 § 278. " § 279. 18 § 284. " § 285-297. » § 293. 21 § 295. 22 § 296. 2« § 294. =* § 297. 25 § 298. "» § 299. 176 LISTING AND VALUATION ESSENTIAL. § 194 acting under a law requiring him to make additional assess- ments if property is found unassessed, returned the whole roll as an assessment made by him, and it was approved as such, the proceedings were held valid.^ § 194. A lawful Listing amd Valuation of the Land for Taxation is essential to the Validity of a Tax Title. — An assessment and its validity must be shown in order to sustain a tax sale.^ An illegal assessment of real property imposes no obligation on the owner to pay the tax levied thereon, and creates no lien on the real estate so assessed.* The want of an assess- ment, in fact, is not a mere irregularity, and cannot be cured.* This is a prerequisite which cannot under any circumstances whatever be dispensed with. In a double sense, it is an indis- pensable prerequisite : first, to satisfy the plain and unequivo- cal demands of the statute; and second, to give life and energy to the statute itself. It is the basis upon which all the subse- quent proceedings rest. All of our constitutions require, either in express terms or by necessary implication, that taxes shall be uniform and equal in their operation ; in other words, that each and every citizen shall pay a tax in pro- portion to the value of his estate. A periodical listing and valuation of all the property within the jurisdiction of the taxing power is therefore absolutely necessary in order to carry into practical efiFect this constitutional requirement. To hold otherwise would be to pronounce the revenue laws un- constitutional and void, and deprive the citizen of all manner of protection against unjust and oppressive taxation. The listing and valuation of the property usually precedes . the levy of the tax ; indeed, this is universally true whenever the tax is levied by a county, town, or municipal corporation acting under the authority of the legislature. The taxes necessary for the support of the State government are fixed by public law ; but inferior jurisdictions are limited in their power of taxation. The purpose for which the tax is raised is specified » Qato V. Gordon, 63 Miss. 320. « Brady v. OfEutt, 19 La. Ann. 184. * People V. Pearis, 37 Gal. 259. * McReynolds v. Longenberger, 57 Pa. St. 13. VOL. I. — 12 17f § 196 OF THE LISTING AND VALUATION OF THE LAND. in the law, and the maximum rate of the levy is established, beyond which they cannot go. § 195. The practical operation of each levy, and the abso- lute necessity of a list and valuation, may be thus illustrated. Suppose that by the lists returned from each county it appears that the aggregate valuation of all the land in the State is one hundred million dollars. The legislature directs the as- sessment of five mills, for State purposes, upon each dollar's worth of property embraced in the list. The assessor per- forms the ministerial duty of charging the tax thus levied upon each parcel of land in the list, according to its appraised value. Upon this valuation the produce of the State tax would be five hundred thousand dollars. Again, a county is authorized to levy a tax, to meet its current expenses, not exceeding the rate of five mills to the dollar. The list of that county shows an aggregate valuation of one million dollars. The produce of such tax, taking the maximum rate, would be five thousand dollars. In each case the citizen is bound to contribute according to the valuation of his estate. One is the owner of property to the amount of ten thousand dollars, while another owns but one thousand dollars' worth. The former will be charged one hundred dollars for State and county taxes, and the latter but ten ; and the sum thus chargeable to each is set opposite to the description of his estate in the list. It will thus be seen that the listing and valuation of the land is tlie basis of the assessment of the tax, and that each citizen is directly interested in the list. By it alone can the legality of the tax be tested ; this is his only security against an unequal tax. § 196. Again, in most of the States a duplicate of this list is delivered to the collector, and this constitutes his authority to demand the tax, distrain the goods, and sell the land of the delinquent. Besides, the collector is charged with the tax ac- cording to the list, and the list is the basis of his settlement with the State and county. A valid assessment is an essen- tial. No subsequent proceeding can stand if this foundation be lacking.^ The listing and valuation constitute the secur- 1 Perry County v. Selma, M. & M. R. Co., 58 Ala. 546 (1877) ; 178 STRICTNESS. § 197 ity of the citizen, the foundation of the assessment and all the subsequent proceedings, the authority of the officer to collect the tax, and the basis upon which the settlements of the collecting officers are made,^ and without a listing and valuation the tax deed conveys no title.^ § 197. With 'what Exactness the Law must be followed in making the Assessment. — The substance of an assessment cannot be dispensed with by the legislature, nor its absence cured, as we have seen ; ^ but as to the strictness with which the methods and forms of the law must be followed there is much difference of opinion. A specification of the time at which an act is to be done is especially regarded as of small account;* de facto officers are sufficient for assessment ; * a description of the land that will identify it is enough ; ^ failure to assess in the name of the proper person is not everywhere fatal ; ^ nor omission of the f mark ; * nor the failure to include in the list all the taxable property which rightfully belongs in it.' Notice to the person assessed is an essential with which the legislature cannot dispense, and no curative act can validate an assessment defective in this respect.^* Failure to carry forward on the tax-lists of the year the taxes for which the Driggers v. Cassaday, 71 Ala. 529 (1882) ; South Platte Land Co. v. Crete, 11 Neb. 344 (1881). 1 Graves v. Bruen, 11 111. 431; Tibbetts t>. Job, Id. 453; Schuyler v. Hull, Id. 462; Job v. Tebbetts, 10 111. 376; Nalle's Rep. v. Fenwick, 4 Rand. (Va) 591; Kinney v. Beverley, 2 Hen. & M. (Va.) 318; Holt's Heirs' Lessee v. Hemphill's Heirs, 3 Ohio, 232; s. c. 1-4 Ohio Cond. 551; Dresback's Lessee v. Mc Arthur, 7 Ohio, Part 1, 146; Thurston v. Little, 3 Mass. 429; Games v. Stiles, 14 Pet. (U. S.) 322; Adam v. Litchfield, 10 Conn. 127; Whittelsey v. Clinton, 14 id. 72; Ferris v. Coover, 10 Cal. 589; Woolfolk v. Fonbene, 15 La. Ann. 15 ; Braly v. Seaman, 30 Cal. 610; Van Rensselaer «. Witbeck, 7 N. Y 517 (see Parish v. Golden, 35 N Y. 462, 465). " People V. Hastings, 29 Cal. 449 ; Scott v. Stearns, 2 Mich. N. P. 111. The making of a certified copy by an assessor of an assessment roll made by another assessor in a previous year is not an assessment of property ; and under § 13, art. xi.. Const, of California, the legislature cannot by law fix the assessed value of property. People v. Hastings, supra. » § 194; see next par. * §§ 219, 220. ^ § 200. « § 223. ' § 256. 8 § 294. » § 298. 1° Albany City Nat. Bank v. Maher, 20 Blatch. 342 (1882). 179 § 197 OP THE LISTING AND VALITATION OF THE LAND. land is sold, is fatal to the sale.^ As a rule, provisions relat- ing to assessment and levy are mandatory when their object is the protection of the taxpayer; but regulations intended merely for the information of the assessor or other officer, and to promote order, method, system, and uniformity, will be held directory when the assessment is so made as to be understood. Clerical or ministerial duties also, the non-observance of which does not injuriously affect the taxpayer, are directory. The courts will indulge every reasonable intendment in favor of regularity in the assessment.^ The presumption is always that public officers have done their duty.^ When service of notice has not been made, in the absence of contrary evidence it will be presumed that the land was taxed to an unknown owner and was unoccupied, in which case no notice is re- quired ; * and irregularities in assessment will not defeat a tax if they do not prejudice the person taxed.^ A mere clerical error in the assessment roll, as where the word "cred- itor " is written instead of the word " debtor " in the certifi- cate of the assessors, is of no effect.* Under § 20, Revenue Act of California of 1861, providing that the assessment roll shall be substantially in the form given in that act, it was held that an assessment roll in which the columns are arranged in a different order or under different headings, indicating the contents of the columns, from the form given in the statute (as "Value Personal," "Value Real"), may nevertheless be a substantial compliance with the statute ; that a roll in which the name appears in the proper place and column is not in- valid because it extends beyond the line of that column.^ The fact that the collector's "copy of the corrected assessment roll," under § 26, Act 49, 1843, does not contain copies of the 1 Barke w. Early, 33 N. W. 677 Iowa (1887); 72 Iowa, 278; Hooper V. Sac County Bank, Id. 681 ; 72 id. 280. ' State Auditor v. Jackson County, 65 Ala. 150 (1880). 8 Rivers v. Thompson, 43 Ala. 637 (1869). * Fuller V. Armstrong, 53 Iowa, 683 (1880). 6 Stockle V. Silsbee, 41 Mich. 615 (1879). « Chamberlain w. Taylor, 36 Hun, 35 (1885). ' People B. Sierra B. Q. M. Co., 39 Cal. 511; Heft v. Gephart, 65 Pa. St. 518. 180 WHAT CONSTITUTES A TAX LIST OR ASSESSMENT. § 198 certificates of the assessors and chairman of the board of supervisors in the original assessment roll does not avoid the proceedings.^ Where an unauthorized alteration has been made in the assessment roll, but the original I'oU remains legible, it is valid and in force as though no alteration had been made.^ §198. What constitutes a Tax Ziist or Assessment. — The ordinary signification of the term " list " is a roll or catalogue. In its technical sense it means a complete enumeration of the owners of property in a collection district, together with a description and valuation of their property, made periodically, with a view to equality and uniformity in the levy of taxes. The rate per cent being fixed and a valuation of the land returned constitutes an assessment ; the work of calculating and carrying out the sum due on each tract is merely cleri- cal.* The land was made debtor by being returned assessed and valued, and the rate per cent fixed; determining the amount was a mere mathematical process. If the rate is fixed, and a proper valuation is made for the current year, the work of calculating and carrying out the tax can be done at any time. The valuations with the rates affixed constitute a legal assessment.* It is variously called tax list, rate bill, assessment roll, according to the laws and usages of the respective States. In Homer v. Cilley,* a novel state of facts existed, to which this definition was applied. The New Hampshire statute required the collector, on or before a particular day, to make out and deliver to the deputy secre- tary of state a copy of his tax list ; the deputy was required to retain the list, and receive taxes for a limited time, and it was then to be returned to the collector. Until this was done, the collector possessed no power to advertise and sell > Tweed r. Metcalf, 4 Mich. 579, 596. See also Sibley v. Smith, 2 Alich. 486; Van Rensselaer v. Witbeck, 7 Bavb. (N. Y.) 133. =* State o. Manhattan Silver M. Co., 4 Nev. 318. » Heft 0. Gephart, 65 Pa. St. 518; see also Hubbard v. Winsor, 15 Mich. 146. * Greenough v. Fulton Coal Co., 74 Pa. St. 496, 498 (1874). « 14 N. H. 85: see Wells v. Burbank, 17 id. 393, 407; Wells v. Jack- son Iron Co., 47 id. 235, 256. 181 § 198 OF THE LISTING AND TALtlATION OF THE LAND. the land. The supposed list emhraced a single parcel of land, in an unincorporated and uninhabited place, called " Dame's Gore," the owner of which was a non-resident of the State, the only character of delinquents to whom the above-named statute applied. It was insisted that the list ought to be produced to show the authority of the collector to sell the land ; but it was contended by the counsel, who maintained the validity of the sale, that inasmuch as the tax was against a single parcel of land, and not against divers persons and tracts, the collector had no list, and therefore no copy could be produced. But the court replied : " The signification thus given to the term ' list of taxes ' is quite too confined. Al- though the term ' list ' ordinarily signifies a roll or catalogue, yet a roll does not always contain a number of names, or several particulars. There can.be no doubt that this col- lector was as much bound to return a copy of the non-resident taxes, where there was only one tract taxed as non-resident, as where there were fifty. There was a list of taxes in the first case, within the meaning of the statute, as much as in the last; and so in the present case." Under the statute of 1831, ch. 32, providing that the treasurer of the State, when any taxes are or shall be proportioned to any unincorporated place having so few inhabitants as to be incapable of choosing town officers, shall assess the proportion of such place, and commit the same to the sheriff of the county with a warrant under his hand and seal empowering the sheriff to collect the same ; and providing further that unless tlie treasurer is cer- tified under the hand of the clerk of the proprietors that such place is divided among proprietors, with a copy of such di- vision or partition, so as to enable him to tax the several owners of the same, he shall assess the whole in one sum : it was held that the treasurer had authority to issue a warrant for tlie collection of a tax upon an unincorporated place having no inhabitants ; that no formal assessment was necessary for the purpose of levying the proportion of an unincorporated place which had not been divided among the proprietors ; that the treasurer's warrant for the collection of the propor- tion of such place as ascertained by acts of the legislature 182 PROOF OP THE ASSESSMENT. § 199 subsequently enacted is a sufficient assessment ; and that said warrant, filed in the office of the secretary of state, is a sufficient " list " for that purpose.^ § 199. Proof of the Assessment. — An entry in a book proved to be the assessments for a township, and coming- from the commissioners' office, to the following effect, " No. 3888 ; quantity, 1100 acres ; name of warrantee, John Olden valuation, $1,650," coupled with a resolution of the commis- sioners fixing the rate of county taxes, and a day for appeals, was lield sufficient evidence of an assessment under the act of 1§15.2 The certificate or deed cannot be made conclusive evidence of an assessment ; ^ but either may be made prima facie evidence of a valid listing, thus throwing the burden of proof on him who denies the existence of a lawful assessment. Except where the onus probandi has been changed by law, as the list is the foundatiou of all the proceedings, it is the duty of the purchaser at the tax sale, or those claiming under him, to produce the original, or, in case of its loss or destruc- tion, a duplicate or counterpart ; if there should be no dupli- cate, then an examined or sworn copy ; and if there is no duplicate or examined copy, then parol evidence may be given of its contents.* Parol evidence, in such a case, is looked upon by the courts with a suspicious eye, and will never be admitted until other means of establishing the truth have failed. Perhaps upon principle such evidence ought not to be received at all. Independent of the policy of the law, to require a complete record of the proceedings to be made and preserved for the protection of the interests of the purchaser and former owner, the temptation to a fraudulent suppression or destruction of the missing docu- ment is so great, and the extreme improbability of any one connected with or cognizant of the proceedings being able 1 Wells V. Burbank, 17 N. H. 393; Wells v. Jackson Iron Co., 47 id. 235. See also Russell u. Dyer, 40 id. 173. 2 Wells o. Smyth, 55 Pa. St. 159. » See §§ 638-640, 844-1172. * Nalle V. Fen wick, 4 Rand. 591 ; Doe d. Kelly ». Craig, 5 Ired. (N. C.) 129; McCall V. Loriraer, 4 Watts (Pa.), 351. See Wells v. Jackson lion Co.,47N. H. 235,256. 183 § 200 OP THE LISTING AND VALUATION OF THE LAND. to recollect the distinct facts connected with the listing and valuation of each tract of land, upon a list embracing all of the taxable lands in a county or other district, renders it ex- tremely unsafe for either party to resort to this species of evidence. Besides, in nearly every State duplicates of the list are required to be filed, or the original recorded in some public office, the original or a copy is usually retained by the assessors, and another duplicate is invariably placed in the hands of the collector for the time being ; and it would there- fore seem impossible, unless in a case of a general conflagra- tion of the records and files of all public offices connected with the proceedings, or the fraud of one of the parties interested in the list,, that a necessity should ever arise for the introduc- tion of such evidence. Where there was no recbrd of any levy, assessment, or sale, the prima fade effect of the deed as evidence of an assessment was held to be overcome. There was no evidence of the destruction or loss of any records. The strong presumption is that if there ever was a record it would be in the office of the treasurer or auditor, where it ought' to be.^ However, in support of a long piossession, such evidence might very properly be submitted to a jury. When the original, its counterpart, or examined copy, is produced, the first inquiry will naturally be, Is it an official document ? And this will depend upon the fact whether the person or persons who made it had authority, under the law, to take a list and make a valuation of the taxable property within the district where it purports to have been made. § 200. The List must be made by the Proper OfScers. — When the list is made out by an officer de jure, the official character of the document, of course, cannot be gainsaid. • If the legislature provides that assessors shall have the right to appoint deputies, an assessment by such deputies is valid.^ Where an assessor employed another to make valuations which were afterward submitted to him for correction and approval, the assessment was held not invalid.^ When made 1 Early v. TVhittingham, 43 Iowa, 167 (18T6). « Meek ». MoClure, 49 Cal. 623 (1875). s SneU V. Fort Dodge, 45 Iowa, 566 (1877). 184 LIST MUST BE MADE BY PBOPEE OFFICERS. § 200 by a usurper or intruder into the office, it is equally certain that it is unofficial and void to all intents and purposes.^ A board constituted to review assessments and with power to ap- point the assessors, cannot appoint themselves. Members of the board are ineligible, because their appellate functions are inconsistent with original assessment at their hands. Their judgment is to be reserved for ulterior exercise on appeal, and not put forth in the first instance.^ Where land was assessed twice for the taxes of the same year on the same roll, once as first-class land and once as second-class land, and the clerk selected the first for transcription upon the duplicate, it was held that his act was without authority ; the law gave him no power to select, and the sale was void.^ In this the proper officers did not complete the assessment, but left it indefinitely hanging between two forms, and the clerk in deciding which should be taken, and thereby really bringing the assessment to completion, was a mere intruder. But when made by an officer de facto, especially one who is so regarded because he has neglected to take the oath of office prescribed by law, i. e., that he will make a true and perfect list of, and fairly and impartially value, the lands which are liable to assessment within his district, the official character of the document is more questionable than any other act performed during the whole course of the proceedings. It is not the only substratum of the whole series of acts to be performed, — the incipient step in the divestiture and acquisition of title, — but it would seem that an official valuation under the sanction of the oath of office is the only security the taxpayer has against illegal taxation. The authorities are in conflict upon this point.* An assesspient by de facto officers is held valid in Wisconsin and New Jersey." Failure to take the oath does not invalidate the acts of assessors.^ Where the board of supervisors ap- i Birch v. Fisher, 13 Serg. & R. (Pa.) 208. . * Hawkins v. Jonesboro, 63 Ga. 528 (18T9). » Barnes v. Doe, 4 Ind. 133 (1853). * For other cases than those noticed here, see Chap. IV. 6 Yorty V. Paine, 62 Wis. 154 (1885) ; State v. Pierson, 47 N. J. L. 247. ' Koontz V Hancock County Commissioners, 64 Md. 134. 185 § 201 OF THE LISTING AND VALUATION OP THE LAND. points the assessor to complete the assessment he should have- previously made, although the action is vicious as defeating the purpose of the law that the defaulting assessor shall lose his compensation, yet the assessment so completed will be valid. The assessor was pro hao vice an oflScer de facto.^ In Maine, on the contrary, where the statute provided that in case no assessors were chosen the selectmen shoald act as assessors, each one to be sworn as an assessor, it was held that failure to take the oath invalidated the assessment. " No oath, no competency ; no competency, no legal assessment. . . . Assuming that these men, acting as they did as asses- sors by color of an election which if legal would have made them such, still the principles applicable to officers de facto would not apply here. . . . This is an action to recover the tax. . . . The defendant is not a third person, nor is there any third person to avail himself of the act or attack the assessment collaterally. . . . True, the assessors are not a party to the action, but the town, which stands in their place and which they represented, is such party, and has no more rights, simply because the statute provided that the action should be in its name." ^ The quotation fully explains the exclusion of the rules holding valid the action of de facto officers. Their acts are not valid to their own protection. § 201. Where Authority is conferred by the Statute upon Several Persons. — To list and value land? for taxation, all should convene together, because the advice and opinions of all may be useful, though all do not unite in the decision ; but it is not essential that all should concur in the judgment, — the act of a majority will be binding. This is in accordance with the general principles of law. Where a, private authority is delegated to several persons, all must join in its execution, while in matters of public concern the act of the majority is conclusive. In matters purely ministerial, such as the listing of the land, there is no difficulty in procuring the concurrence of all, because there is nothing concerning which they can differ ; but where the judgment is to be exercised, as in the » Corburn v. Crittenden, 62 Miss. 136, 137 (1884). ^ Dresden v. Gond, 75 Me. 299 (1883). 186 LIST MUST BE MADE BY PROPER OFFICER. § 201 valuation of the lands upon the list, tlie inconvenience in re- quiring unanimity is extreme ; and but for the rule which sanctions the act of the majority in such cases, there would oftentimes be a failure of justice, and great injury to the government would necessarily ensue. Where the list is signed by a majority only of the number, the presumption of law is that all were consulted ; but where the evidence shows that all did not convene and consult together, the list will be held invalid.^ But if the law requires three assessors, a list signed by two only, without any evidence that a third was elected and qualified, will not sustain a sale. So far as the evidence goes, there are only two assessors, one less than the law requires.^ Where a statute provided a board of three tax commissioners to assess taxes on real estate, and in case of their non-payment to sell and deliver possession of the property to the purchaser, and three commissioners were ap- pointed, but only two acted or qualified, it was held that there was no board' of commissioners ever in existence, two not constituting a board ; and that the action of two out of the three in making a sale for taxes where the third took no part in, and knew nothing of, the transaction, was void ; that in order to render their action valid all must be present and partici- pate, or have an opportunity to participate, in the proceedings, although some may dissent from the action determined on. It was held further that a subsequent statute declaring in the future tense " that a majority of a board of tax commissioners shall have full authority to transact all business and to per- form all duties required by law to be performed by such board, and no proceeding of any board of tax commissioners shall be void or invalid in consequence of the absence of any one of said commissioners," refers to the exercise of the power 1 Doughty ». Hope, 3 Denio (N. Y.), 594; Re Baltimore Turnpike Co., 5 Bin. (Pa.) 481; Kinney ». Doe ex dem. Laman, 8 Blackf. (Ind.) 350; Middletown v. Berlin, 18 Conn. 189; Powell v. Tuttle, 3 N. Y. 396. See Lowe V. Weld, 52 Me. 588." So in Cooley v. O'Connor, 12 Wal. (U. S.) 391, as to certificate of sale. * Sanfason v. Martin, 55 Me. 112 (1867) ; WiUiamsburg v. Lord, 51 id. 599, 601. 187 § 202 OP THE LISTING AND VALUATION OP THE LAND. granted for the future to a majority of the board, and does not cure defects in title arising out of past transactions.^ In Wisconsin, by statute a majority action is sufiBcient when joint authority is given to three or more.^ § 202. In Middletown v. Berlin^ an assessment' list of the district of Westfield, in the town of Middletown, for the year 1835, made up and signed by Luther Bowers, assessor, and by him lodged in the town clerk's office, was offered in evi- dence to establish the legality of a tax. In this connection it appeared that there was a board of assessors in that town, consisting of five persons, duly chosen, qualified, and acting, and there was no evidence showing that the assessment had ever been seen, heard of, or sanctioned by the board. It fur- ther appeared that the town was divided into districts, and that it was the usage of the town for each assessor to act inde- pendently of the others. The statute required the board of assessors to act in making the assessment. This evidence was excluded by the court below, and a verdict rendered ac- cordingly, — motion for a new trial in the Supreme Court, and overruled. By the court : " The assessment lists of the sev- eral towns are the only rule and basis upon which counties, towns, and other communities can levy taxes. These must be legal, or the taxes laid and apportioned upon them cannot be. This was not the act of the board, which consisted of five persons, and this purports to be the act of one of them only. The rule governing the execution of public and private powers has long been settled. A power conferred upon two or more persons by individuals for private purposes must be executed by all ; but an authority imposed by law for public purposes may be executed by a majority if all have been legally notified to act. It is believed that no case can be found which will justify the performance of a duty required of an aggregate body, by one only, as has been attempted here. Assessors are the officers of the law, and must obey the law ; and no direc- tion of the town, or long-continued usage, can justify a depart- ure from the law." 1 Schenck o. Peay, 1 Woolw. C. C. (U. S.) 175. See also s. c. 1 Dill. C. C. (D. S.) 267. » R. S. 1145, § 4971. » 18 Conn. 189. 188 TEEIFICATION. § 204 § 203. In Kinney v. Doe et dem. Laman,^ which was an action of ejectment to recover a town lot, the defendant relied upon a tax title acquired under a sale for county taxes du% upon the lot in question for the year 1822 ; and in attempting to prove the regularity of the proceedings, offered in evidence the assessment roll of county taxes for that year, signed by the lister, without proving that the valuation had been made by the lister and two householders, as required by the act of 1820. This evidence was rejected by the Circuit Court, and an exception taken to the ruling. The judgment was afiBrmed. Blackford, J. : " We think the decision of the court is right. The evidence was not admissible without proof that the assess- ment had been legally made. It could not be legally made so far as the valuation of town lots was concerned, except by the lister and two householders appointed by him.^ The assess- ment roll, therefore, was inadmissible, etc., without proof that the lots had been valued by the lister and two householders." § 204. Verification of the Assessment. — A substantial com- pliance with all provisions of law relating to the authentication or verification of the assessment roll is by most of the courts deemed imperative.^ Whether the verification is by signature,* or oath,* or certificate,^ or affidavit,® attached to or accompany- ing the roll, or by two or more of these forms together, the assessment is not deemed complete until properly verified. It seems the better opinion, however, that a failure to verify until after the time fixed by law should not necessarily vitiate the assessment.^ The recitals in the affidavit or certificate must in substance fulfil the law.* Where the statute required the assessors to sign the roll, and to make a certificate which should be attached to the roll and signed by the assessors, the court held that the reason for signing the roll was to authenticate and identify it, and • 1 8 Blackf. (Ind.) 350. » Acts 1820, p. 150. » See §§ 205-208; contra last case cited in § 207. State v. Schooley, 84 Mo. 447, certificate necessary or the sale will be void ; Kelly ». Craig, 5Ired. (N. C.) 127. « § 205. 6 § 206. « §§ 207, 208. ' § 206, last case ; contra same section. » § 208. 189 § 204 OP THE LISTING AND VALUATION OF THE LAND. that if the certificate was written on the roll itself and properly signed, the law was substantially complied with.^ And where flie law requires the assessors to make a list under their hands, and commit the same for collection with a warrant under their hands, it has been held that in case of a list incorporated in the warrant and made by reference a part of it, the signature on the 'ftrarrant was a sufficient compliance with the -law.^ So where a list of highway taxes was not signed as required by law, but a warrant for collection was attached and the latter was signed by the commissioner of highways, this was held a sufficient signing of the list, there being no provision requiring a warrant to be attached to the list.^ An affidavit beginning " I., N., assessor of first ward, do solemnly swear," etc., using the singular pronoun throughout, but signed by a majority of the assessors, was held a sufficient verification,* on the same principle that a note beginning " I promise," and signed by two or more, is held to be a joint note. The omission of affidavit or of signature in the copy delivered to the collector is not a fatal defect, and is no evidence that the original was not regu- lar. In the absence of proof to the contrary, the presumption is that the original roll was correct and regular;^ especially is this presumption strong after the lapse of thirty or more years.* Failure of the county clerk to sign and seal the assessors' book voids a sale based on it.' Failure of the clerk to attach his certificate to the tax roll is not fatal.^ In Wisconsin it is provided that an assessor cannot impeach his own affidavit, nor will evidence of his admissions be received for that purpose.* * Chamberlain «. Taylor, 36 Hun, 31 (1885). See also Darmstaetter V. Moloney, 45 Mich. 621; Johnson v. Goodridge, 15 Me. 29; City of Bangor v. Lancey, 21 id. 472; Tonnele ». Hall, 4 Comst. 140, — a will case involving the same principle. 2 Bailey v. Ackerman, 54 N. H. 527; Norridgewock v. Walker, 71 Me. 181 ; Lowe v. Weld, 52 id. 588. » Hogelskamp v. Weeks, 87 Mich. 427 (1877). " Marshall v. Benson, 48 Wis. 558 (1879). « Bradley v. Ward, 58 N. Y. 401 ; Boyd v. Gray, 34 How. 323. 8 Chamberlain v. Taylor, 36 Hun, 34 (1885). ' Howard v. Heck, 456 (1883). ' Commissioners of Jefferson County v. Johnson, 23 Kan. 717 (1880). » Marshall v. Benson, 48 Wis. 563 (1879). 190 VERIFICATION. § 205 § 205. The List must be verified by the Official Signature of the Officer charged by Law with the Duty of Making it. — Where the list was required to be verified by the oath in writing of the taxpayer, and it was not so verified, a sale based on such assessment was held invalid.^ The object of this rule is the identification of the document as an official act, executed by the authority of the law; and its spirit is answered only when the official character of the person making it is estab- lished, and the document appears upon its face to be an offi- cial act attested by the signature of the proper officer. In Johnson v. Goodridge,^ where the law directed the selection of three assessors, and required them to " make perfect lists under their hands," the facts were that a list of lands belong- ing to resident and non-resident proprietors was made by two of the assessors. It contained several pages, the first and second of which embraced the lands of non-residents ; the residue of the pages contained the lands of residents. The only authentication of the list was at the commencement of the first page, in these words : — " To Jonathan Goodridge, collector : Fine tax on the high- ways, for 1832, assessed on the estates of non-residents by Wentworth Tuttle, j Assessors of Isaac Holt, J Canaan." The listing and assessment were held void. The court say : " All that can reasonably be required is, to accomplish the object designed by the statute, which is, that the lists should bear upon them the official sanction of a majority of the as- sessors, evidenced by their signatures. If a majority .sign the lists in such a manner as to show that the intention was thereby to give them their official sanction, that may be sufficient, on whatever part of the lists it be made ; but the intention or object of the signature must clearly appear. It must be a signing for the purpose of special authentication. It is difficult to say that any more of these lists than the pages bearing the assessment upon non-residents are so au- > Davis V. Fames, 26 Tex. 296. " 15 Me. 29. 191 § 205 OP THE LISTING AND VALUATION OF THE LAND. thenticated. The assessors limit tlieir signatures to taxes on the estates of non-residents, and the words 'non-residents,' being a proper description of certain portions oi the tax lists, cannot be rejected as words without meaning." In Sibley V. Smith,^ where the statute required the assessment roll to be signed by the assessor, and it was omitted, the sale based upon it was held void. The statute of Maine required the assessors to " make perfect lists of their assessments, under their hands, etc., and commit the same to the collector, with a warrant under their hands and seals, etc." In two cases the lists were not so signed, but the warrants in the same paper book were ; and the court held that a signing of the list was an essential requisite, that it must bear upon its face evidence of its official sanction, and until thus signed was an incom- plete and void act, — " an unfinished proceeding." ^ In an action upon the collector's bond, where the lists were in his possession, the court presumed that they had been duly authen- ticated by the official signatures of the assessors.^ • And under an act of the Pennsylvania legislature, which declared " that no irregularity in the assessment shall be construed to affect the title of the purchaser, but the same shall be declared good and legal," the court held a sale valid where the assessor had neglected to sign the roll.* In Savings Bank v. Land and Lumber Co.^ the defendant's tax title was held void, because " neither the assessment of the tax nor the list of taxes com- mitted to the collector were signed by a majority of the as- sessors. The law requires all assessments of taxes to be under the hands of the assessors ; and it is well settled that to be valid the lists of assessments must be signed by at least a majority of the assessors. A signing by one, when three are 1 2 Mich. 486, 498; Scott v. Stearns, 2 Mich. N. P. 111. The Michi- gan act of 1842, unlike the Revised Statutes of 1838, did. not lequire assessment rolls to be signed by the assessor. Their signature to the cer- tificate attached is all the authentication required. Lacey v. X>aTis, 4 Mich. 141. = Colby V. Russell, 8 Me. 227; Foxoroft v. Nevens, 4 id. 72. » Kellar v. Savage, 20 Me. l99. * Townsen v. Wilson, 9 Pa. 270. 6 73 Me. 406 (1882), 192 VEBIFICATION. § 207 duly elected and qualified, is not sufficient. It is not impor- tant in what manner they are signed, whether at the beginning or end of the list ; but they must be signed in some form by at least a majority of the assessors, and in such a manner as to show that they intended to give them their official sanction. The signing of a warrant to the collector is not sufficient; the list of assessments must also be signed." § 206. Oath. — The form of oath prescribed for the assessors must be followed. Any material variation will be fatal.^ The objects of the assessor's oath are, first, identification of the roll; second, evidence of faithful performance of duty by a full and impartial assessment ; and a substantial compliance with the law as to verification by oath is essential.^ When the law requires verification of appraisal by oath, and that the appraisal shall be completed and filed at a certain time, and a list is made and filed within the time, but not sworn to until long after, the assessment is void. The appraisal is not completed until sworn to.^ But in New York it has been held that the assessors may correct defects in an affidavit verifying the roll, or cure them by a second affidavit. The time at which it is provided that the roll shall be verified is merely directory.* § 207. A Substantial Compliance with the Provisions of Law requiring an Affidavit or Certificate verifying the Assessment is usually/ held imperative. — A provision of law requiring an affidavit or certificate by the assessors, attached to the assess- ment roll as a verification of it, is imperative. It is mani- festly intended to secure good faith and care, and is greatly to the advantage of the taxpayer. An assessor who has fol- lowed the law and made a fair assessment will not hesitate to take the oath ; an assessor who does hesitate impeaches his own assessment, and in Wisconsin the court will stay all pro- ceedings till a reassessment takes place.^ And although the 1 Shattuck V. Bascom, 105 N. Y. 39. ' Lynam v. Anderson, 9 Neb. 367 (1879). » Walker v. Burlington, 56 Vt. 138 (1883). * People V. Jones, 43 Hun, 131 (1887). ° Plumer v. Supervisors of Marathon County, 46 Wis. 178, 179 (1879) ; Matteson v. Eosendale, 37 id. 254 ; "^unbridge v. Smith, 48 Vt. 652 VOL. I. — 13 193 § 207 OP THE LISTING AND VALUATION OP THE LAND. legislature may change or annul the law, or make it directory, yet so long as it remains on the statute book in its present mandatory form the effect of failure to comply with it in all cases is to be determined by the judiciary, and the legislature cannot declare valid an assessment previously made and not verified as required.^ However, a literal compliance with the law is not required. A substantial fulfilment is suflBcient,^ and unless the affidavit shows affirmatively that the law has not been complied with, it will be presumed that the assessors did their duty in making the assessment.^ In Massachusetts, a warrant signed by the assessors, with one seal affixed while they were together, and concluding with " given under our hands," omitting " and seals," was held valid. The annexing of the one seal was held the act of all the assessors.* Con- trary to the above, it is held in Mississippi that the require- ment of verification is directory only, and not mandatory, and that failure to append the affidavit required by law will not avoid sales under the assessment.^ No reason is given by the court, nor is there anything in the opinion, to show a study of the counter cases. If the assessors have proceeded legally, an informal certificate or affidavit ought not to be regarded as fatal to the jurisdiction of the supervisors to levy the tax ; and the court will not presume that the assessors have neglected any duty, from their mere omission to certify it in their affidavit indorsed on the assessment roll. If the affi- davit contains substantially the matters required by statute, it is sufficient ; and if the omitted part is material, it may be supplied and corrected.* (1876); Marsh v. Supervisors, 4-2 Wis. 502; Griggs v. St. Croix County, 20 Fed. K. 341 (1884); Tierney v. Union Lumbering Co., 47 Wis. 250 (1879); Scheiber v. Kaehler, 49 id. 300 (1880); MoiTill ». Taylor, 6 Neb. 236 (1877). 1 See last note, first four cases. 2 Buf. & State L. R. Co. v. Supervisors Erie County, 48 N. T. 105 (1871). » Parish «. Golden, 35 N. Y. 462. « Bradford v. Randall, 5 Pick. 497 (1827). 5 Chestnut v. Elliott, 61 Miss. 572 (1884). = Parish v. Golden, 35 N. Y. 465. 194 VEKIPICATION. § 208 § 208. The Assessors^ Certificate, or Affidavit, and its Meci- tals. — Omission of the words " and at which they would ap praise the same in payment of a just debt due from a solvent debtor," required by the statute form, is fatal,^ there being no substituted words of like effect. If the law requires the assessor to certify that the assessment is at the " true cash value," omission of the word " casli " is a substantial failure that will avoid a subsequent deed.^ A certificate of assess- ment "at its true cash value," without adding "and not at the price it would sell for at forced or auction sale," avoids the tax.^ Where an assessors' certificate stated that the lands were assessed at the "cash value" instead, of at the " true cash value " as required by statute, but in another part of the certificate the personal property is certified to as assessed at the " true cash value as aforesaid," the omission of the word " true " in the former clause was held a mere clerical error.* But in the certificate for another year the statement was that the land was assessed at " the cash value thereof, and not at the price it would sell for at forced sale," while the statute form was " the true cash value thereof, and not the price it would sell for at forced or auction sale ; " and Cooley, J., held that as an auction sale was not necessarily a forced sale, the certificate had the appearance , of a mental reservation, and the omissions were fatal.® The omission to state in the verifying affidavit that the roll contained " the name of each stockholder and the amount of his stock in each incorporated bank in said town " is not fatal if it is shown that there is no incorporated bank in the town. But the omission to state that each valuation " is the full value which could ordinarily be obtained" is fatal.® Where an assessor certified that he had " estimated the property at what he be- lieved to be the cash value thereof, ag is customary hy assess- 1 Inman v. Coleman, 37 Hun, 173 (1885). 2 Hogelskamp v. Weeks, 37 Mich. 426 (1877). ' Sinclair v. Learned, 51 Mich. 335 (1883); Comp. L. § 991. * Dickison v. Reynolds, 48 Mich. 162 (1882). 6 Ibid.; Silsbee v. Stockle, 44 Mich. 561. « Scheiber v. Kaehler, 49 Wis. 292 (1880). 195 § 210 OF THE LISTING AND VALUATION OF THE LAND. org" the assessment and sale were held void. The italicize( clause adopts an illegal criterion, and opens the way to al sorts of gross evasions ; and valuations according to thi whim of the officers would under it become legal precedents. Where the certificate omitted the statement required by thi city charter, that the assessors " have together personallj examined, within the year past, each and every lot and parce of land, house, building or other assessable property withii the wai'd," the assessment and sale under it were held void.^ § 209. The Land must be listed in the Proper District.^ — Th( power of the assessor is limited and special. It is confined t( ■ estates lying within his district. It follows, therefore, that i; he list and value lands not within his town or county, hii jurisdiction is exceeded, and the proceeding, to that extent, is void.* There is an ill-considered case in Pennsylvania to the ^^ontrary, in which it is held that under the curative act a list ing in the wrong county is valid.^ Undoubtedly authoritj and reason unite in affirming that an assessment made by offi cers of a town in which the lands were not and never had been situated, and whose officers had never before exercised anj jurisdiction over the lands, is void, as is also the deed based on it.^ A certificate duly signed by the assessors " that the foregoing pages contain an inventory of polls and estate, real and personal, liable to be taxed in " a town named, sufficientlj " indicates that the real estate described above lay in sucl town.' A change in the boundaries after assessment does nol affect the subsequent proceedings* unless it takes the object ol the taxation out of the county or other district.' § 210. Hach county under the tax laws of Pennsylvank assesses and taxes all the lands found within its boundaries ; 1 Hurd V. Raymond, 50 Mich. 370 (1883). = Brevoort v. Brooklyn, 89 N. Y. 131 (1832). 8 §§210-217. * Thurston v. Martin, 5 Mason, C. C, (U. S.) 497. See Toby v. Hag- gerty, 23 Ark. 370; Winslow v. Morrill, 47 Me. 411. See People v. Pearis 37 Cal. 259. 6 § 214. • Wadleigh v. Marathon County Bank, 58 Wis. 555 (1883) ; Smith v Sherry, 54 Wis. 122, 123 (1882). ' Greene v. Lunt, 58 Me. 518. « § 217. » § 307. 196 LISTING MUST BE IN PROPER DISTRICT. § 212 and there is no law for the taxation of unseated border lands by entireties in adjoining counties. It is the duty of an assessor finding land lying partly in his own county and partly in another, to ascertain its character, whether seated or unseated; and where a tract lay in Centre County, and by division of the county part was thrown into Clearfield, and was there sold as unseated for taxes, it was held that the fact that taxes for the whole tract had been assessed and paid in Centre County did not relieve the part in Clearfield from sale.^ § 211. The Ohio statute ^ made it the duty of the county auditor to call on each resident owner of land w^ithin his county, and take a list of all his lands subject to taxation within the county ; with a proviso that " all lands lying with- in the Virginia Military District, which shall be divided by county lines, so as to leave parts of said tracts in two or more counties, shall be listed by the proprietor in the county where he lives." Another section ^ made it the duty of the auditor, on the failure of the owner to furnish a list, to enter the land from the best information in his power. § 212. In the case of Hughey's Lessee v. Horrel^ which was an ejectment wherein the defendant relied upon a tax title, it appeared that the land in question was divided by the line between Madison and Pickaway counties, and the owner lived upon that part of the land which lay in Pickaway. The county auditor of Madison entered the land upon his list in the name of Prichard, the real owner. The sale was held void. The court said that " as the land in question was in the Virginia Military District, and divided by a county line, and as Prichard, the proprietor in whose name it was listed, resided in the county of Pickaway, the auditor of Madison was not authorized to enter it on his list. It was made the duty of the proprietor to enter it in the county in which he lived, and on his failure to do so it ought to have been entered by the auditor of Pickaway. It is evident, therefore, that this land has not been entered in conformity with the statute, and that it has been sold by an officer who was not authorized by law to make the sale." > Patton V. Long, 68 Pa. St 260. = 1820, § 9. » § 13. * 2 Ohio, 231 ; 1-4 Ohio Cond. 335. 197 § 214 OF THE LISTING AND VALUATION OP THE LAND. § 213. The New York statute enacted that " where the line between two towns divides any occupied lot or farm, the same shall be taxed in the town where the occupant lives, provided he or she live on the lot." In Saunders v. Springsteen ^ it appeared that the defendant in error was the owner and occu- pant of a farm covering parts of two lots numbered twenty- six and thirty-four. This farm was divided by the town line between Lewiston and Cambria, the division line of the towns being also the dividing line between said lots. The dwelling- house of the defendant in error was upon the part of the farm in Cambria; his barn was in the town of Lewiston. The entire farm was assessed in Cambria in 1826, and the assessor of Lewiston, with a full knowledge of the facts, also assessed that part of the farm lying in his town upon which a tax was collected. It was held that the last assessment was void. § 214. Under the curative act of Pennsylvania it was held that, where lands were listed for taxation in the wrong county, the sale was nevertheless valid.^ This decision does not ap- pear to give a fair construction to the act, the language of which was, " that no irregularity in the assessment shall be construed to affect the title of the purchaser." The evident intention of the legislature, as manifested by the words they used, and the spirit of the provision, was to cure a defective assessment, where the assessor had jurisdiction but proceeded irregularly in the exercise of it, and not to declare that to be an assessment which was a nullity for want of authority to make it. Suppose a mere usurper makes the assessment, and the fiscal agents of the county or town recognize it, and cause the list to be placed in the hands of the collector de jure, who proceeds to collect the taxes and sell the lands of delinquents upon such a list ; could it be pretended that there was any vitality in such a proceeding? Surely not; it is simply no assessment at all, and when the courts declare it to be valid under the curative act, they go one step beyond the legisla- ture. The latter, presupposing that an assessment has been 1 4 Wend. (N. Y.) 429. 2 Montgomery v. Meredith, 17 Pa. St. 42; see Brown v. Hays, 66 id. 229,237. 198 USTING MUST BE IN PROPER DISTRICT. § 216 made in point of f aet, but presuming that irregularities have taken place in the course of the proceedings, declare it valid ; while in the former, the courts, usurping the functions of an assessor de jure, make one, and by judicial legislation pro- nounce it legal. The same may be said of the case where land is listed which does not lie within the territorial juris- diction of the assessor. The assessment is said to be in the nature of a judgment and execution against the delinquent taxpayer, and constitutes the warrant of the collector to sell. Yet in the Pennsylvania case the court give to a pretended assessment a validity which the judgment of the highest court of the land does not possess. Where a superior court of gen- eral jurisdiction has not authority in the particular case, its judgments are simply nullities. § 215. The Illinois statute of 1827 required that all lands belonging to residents of the State should be listed in the county where the owner resided. The act of 1829 declared that the list should be completed by the first day of July, annually; and by the same act the county clerk was directed to transmit to the auditor of state a list of all lands in his county which had not been listed- there by the fifteenth day of July, and, all such lands thus returned were to be sold by the auditor as non-resident lands. The statute also, according to the decisions of the Supreme Court, made the auditor's deed prima fade evidence, among other things, that the land was regularly listed for taxation. § 216. In Messinger v. Germain ^ it appeared that the sale was made by the auditor, Jan. 16, 1830, upon the authority of a list returned the preceding year by the clerk of St. Clair County, where the land in question lay. For the purpose of showing that the land was not legally listed and sold, it was proven that at the time of the auditor's sale one of the own- ers resided in the county of St. Clair, and the other in Jo Daviess County, Illinois. Upon this state of facts the court held, first, that they would presume that the owners had failed to list in. the counties where they respectively resided ; and second, that proof that on the day of sale one of the parties 1 6 ni. 631. 199 § 218 OP THE LISTING AND VALUATION OF THE LAND. resided in St. Clair furnished uo legal presumption that he resided there when the list of non-resident lands was trans- mitted by the clerk to the auditor. § 217. Tlie Effect of a Change of Boundary^ — Where county boundaries are changed after the assessment is made, the county from which the territory is detached, and not that to which it is transferred, is entitled to extend, colleet, and re- tain the taxes for that year in such transferred territory.^ If, after a tax is levied and assessed against the inhabitants of a school district, part of the district is set off into another dis- trict, the inhabitants of the part removed are still liable to pay the tax ; the debt is fixed by the assessment.^ And even though a person and his estate is set off to another town by a special statute before the assessment is complete, yet he is taxable in the town where he resided on the first day of May.* Where in Wisconsin a county was divided after land therein was assessed for taxes and returned delinquent, and hefore they wei'e sold, and by such division the land was included within the new county, a sale and deed for such taxes made by the proper offi- cers of the old county was held to be valid under §§ 1, 2, 3, 16, 18, and 25, ch. 22, Laws of 1859, providing that all lands re- turned to the county treasurer, and upon which the taxes shall not be paid within the limited time, shall be subject to sale, and that the treasurer shall advertise and sell all such lands, etc., there being no words in the statute requiring the sale, convey- ance, or other acts after the assessment and return to be done within the county where the lands lie.^ On the other hand, a sale for taxes by the treasurer cannot convey title beyond the then ascertained lines of his county, and subsequent changes of the county line cannot enlarge the right of the purchaser." § 218. Date of Assessment. — Property is taxed according 1 See § 307. * Commissioners of Morgan County v. Commissioners of Hendi'icks County, 32 Ind. 234 (1869). » Waldron v. Lee, 5 Pick. 823 (1827). See Milwaukee & St. Paul R. Co. w. Kossuth, 41 Iowa, 57. * Harmaii v. New Marlborough, 9 Cush. 525 (1852). B Austin ». Holt, 32 Wis. 478. « Smith V. Brotherline, 62 Pa. St. 461. 200 BETDRN AND ACCEPTANCE OP THE LIST. § 219 to its value and ownership at the time to which the assess- ment relates ; that is, the day fixed by law dividing cue tax year from another.^ Property acquired after the time limited for completion of the assessment roll cannot be assessed to the purchaser. After deposit of the roll for examination the assessors cannot add names to it, or add other property to the assessment of any individual, even though one who purchases property after completion of the roll agrees to pay the tax. Such an agreement is a matter entirely between the parties.^ § 219. Return and Acceptance of the List. — In many of the States, the law requires the listers to return, file, or lodge the original, or an attested copy of the list, or an abstract thereof, with some public officer designated, on or before a certain day named.* The object of this requirement is to enable the tax- payer to inspect the list, and take such steps as he may deem necessary for the purpose of correcting upon appeal, motion, or otherwise, any errors in the listing and valuation which have taken place to his prejudice. It has been repeatedly held that a failure on the part of the listers to perform this duty ren- ders the list and all of the proceedings founded thereon void.* Thus in Kinney v. Beverley,^ where the law required a listing and assessment of the land for taxation, and a return of the list to the auditors, and this requirement was not complied with, the assessment and sale founded thereon were held to pass no title to the purchaser. So in Wilcox v. Humphry it was held that under the Michigan statute the omission to list, assess, or value lands by the third Monday of May, at 1 Clark V. Norton, 49 N. Y. 247 (1872); People v. Supervisors of Che- nango, 1 Kern. 563; Mygatt v. Washburn, 15 N. Y. 316 ; People v. Com- missioners, 104 U. S. 468 (1881) ; Woodward v. French, 31 Vt. 337 (1858), where one was held under an assessment though removing from the district before collection : Johnson v. Lyon, 106 111. 66 (1883), in which case property moved into the State after May 1 was held not subject to taxation. White v. State, 51 Ga. 252 (1874). ' Clark V. Norton, 49. N. Y. 247 (1872); State v. Hardin, Collector, 34 N. J. L; 79 (1869). 8 See Greene v. Lunt, 58 Me. 518, 529. * See Pittsfield v. Barnstead, 40 N. H. 477; Wheeler v. Mills, 40 Barb. (N. Y.) 644; Wells v. Burbank, 17 N. H. 393. 2 Hen. & M. 318-344. 201 § 219 OF THE LISTING AND VALUATION OF THE LAND. which time the assessor is required by statute ^ to be present at his oifice to hear and determine upon objections to assess- ments, is fatal to the validity of the taxes subsequently levied upon such land, any such subsequent listing and assessment being unauthorized and void ; that when the nature of the act to be performed is such that the designation of time must be considered as a limitation upon the power of the officer to act, the statute is mandatory ; that while curative statutes may remedy mere irregularities in making out assessments, they are not allowed to legalize the act of an official acting without jurisdiction and affecting the substantial rights of the tax- payer to challenge the correctness of the assessed value of his estate.^ In other cases, however, it has been held that delay in filing the rolls is not fatal to the assessment; the provision as to time is directory merely.* Failure to complete the assessment by the required time is not fatal if no injury is caused by the delay,* and if the neglect is damaging, still it may be cured by statute provided aggrieved taxpayers have an opportunity to have their objections passed upon.^ In an action to enforce a tax title it will be presumed that the roll was filed with the clerk of court at the proper time, in the absence of evidence to the contrary .^ Where the law required the assessment roll to be accepted in writing on the back thereof by the board of commissioners, signed and attested by their clerk, and the only entry on the back of an assessment roll was that it was " examined by the board, and ordered to be filed with the clerk," this was held not an acceptance of the roll, and parol testimony of the acceptance being held incompetent, the tax sale was held invalid.'' And the omis- 1 1 C. L. of 1871, § 986. 2 U. S. C. Ct., 6th Circuit & W. Dist. of Mich. Aug. 26, 1873. This case is reported at length on page xixzvi, Auditor-General's Report (Mich.), 1873. » People V. Haupt, 104 N. Y. 377 (1887); People v. Jones, 43 Hun, 131; Rome & Watertown, etc. R. Co. v. Smith, 89 Hun, 332. * Breeze v. Haley, 13 Pac. Rep. 913 (Colo. 1887). 6 Williams v. County of Albany, 7 S. Ct. 1244 (1887); 122 U. S. 154. ' Gwynn o. Richardson, 3 So. Rep. 579 (Miss.). ' Rayburn v. Kuhl, 10 Iowa, 92. 202 CURE OF FAILURE TO RETURN. § 220 sion of the deed to recite that the assessment roll was ac- cepted is evidence by implication that it was not accepted, in those States where the recitals in the deed are made prima facie evidence of the existence and regularity of all the prior proceedings.^ Where the assessment roll was presented to the board of supervisors a month too late, though not approved for a month after presentation, the title was held void ; ^ but the decision seems clearly opposed to the Code of 1871, § 1700. The approval of the assessment roll by the supervisors must be at a lawful meeting of the board.^ Failure of the clerk to mart a roll " filed " does not affect its validity.* § 220. Retrospective statutory cure of failure to make proper return or complete the assessment -within the time required by law cannot affect taxes levied and collected before passage of the act. The rights of the parties to a closed transaction are fixed by the law existing at the time of it. The curative statute can only affect the validity of levies or collections not yet made. The statute of Connecticut required the assessors, after completing the list, to return an abstract thereof to the town clerk on or before the first day of December annually. The clerk was directed to submit, when requested, to the inspec- tion of every person liable to pay taxes, the abstract thus required to be returned. A board of relief was constituted to hear appeals from the doings of the assessors, and having given ten days' notice, the board were required to meet on or before the first Monday in January, to determine the appeals made to them. Another act was passed in May, 1829, pro- viding "that where assessors have heretofore neglected or omitted to sign or return an abstract of the assessment lists of their respective towns by them made, and to lodge the same in the town clerk's office by the first day of December in any year, etc., such assessment lists shall not, for such causes, be considered or adjudged void ; but all taxes which have been heretofore, or shall be hereafter, laid and imposed according * Long I'. Burnett, 13 Iowa, 28. » Stovall V. Conner, 58 Miss. 138. » Fanning v. Flinches, 60 Miss. 641 ; Bowman v. Roe, 62 id. 513, ♦ Briggins v. Chandler, 60 Miss. 862; Mills v. Scott, 62 id. 525. 203 § 220 OP THE LISTING AND VALUATION OP THE LAND. to such assessment lists may, notwithstanding, be levied and collected." The case of the Thames Manufacturing Co. v. Lathrop,^ which was an action of trespass de bonis asportatis against the selectmen of Boziah, to test the validity of a town tax, was pending and undetermined at the time of the passage of the last-named statute. In justification, the defendants proved that the town of Boziah had voted a tax upon* the list of 1827. The list was duly made out, but an abstract of it was not left with the town clerk until the twentieth day of December, 1827. After the first day of that month the plain- tiffs repeatedly called at the clerk's office to inspect the list, but an abstract of it w^as not there. The board of relief met, after due notice, on the last Monday in December; but the plaintiffs did not attend its sittings, or apply for relief against the assessment. The defendants also produced the rate bill, based upon the said assessment, in which the plaintiffs were taxed sixty-five dollars and eighty-five cents ; also a warrant to collect the tax, which was delivered to the collector, under which the goods in question were seized and sold in satisfac- tion of the tax. Upon this evidence the inferior court charged in favor of the plaintiffs, who had a verdict, and the defend- ants moved for a new trial for misdirection. The Supreme Court overruled the motion, and rendered judgment upon the verdict, holding, (1) That the general law requiring the ab- stract to be lodged with the town clerk by the first day of December was an imperative and not a directory require- ment; (2) That the act of 1829 should be confined to the levy and collection of taxes which had been previously laid upon defective assessment lists, but which remained unlevied and uncollected when the law took effect, and to assessments which might thereafter be made. That it could not extend to assessments on which taxes had already been levied and collected, so as to affect actions of trespass then pending ; in other words, the retrospect of the statute operated upon as- sessments and collections in fieri, and not upon those which were executed and closed. Chief Justice Hosmer, in deliv- ering his opinion, remarks upon the first point as follows : I 7 Conn. 550. 204 CURE OP FAILURE TO RETURN. § 221 " This direction is imperative, and is alone alterable by the legislature. The court must take the law as they find it, and cannot say that a return after December the 1st is valid, unless they assume the character of law-makers. The reason of this legislative provision is apparent. It is for the general benefit of every inhabitant of our towns, that each may in- spect the list of his estate, and if he believes that injustice has been done him, that he may appeal for its correction to the board of review. That a time for the return of the lists should be limited, the general convenience demands ; and that it should be sufficiently early for universal inspection, and preparation for a future hearing before the board of review, is perfectly obvious. On this principle the legislature fixed the 1st of December as the ultimate period of return. That the return should be punctually made, is indispensable. A different principle would nullify the law, and produce the general inconvenience arising from an unlimited return. No person, in such case, could know when he might inspect his list ; and if the return was late, no time, either for reflection or preparation for a review, could be had. If the legislature, in a charter of incorporation, had authorized the laying of taxes upon lists returned to a public ofiice at a specified time, the necessity of a strict observance of the limitation would not admit of a question.^ The case before us is strictly analogous to the one supposed. The general law is an enabling act to all our towns ; it has prescribed the subjects of taxation, and the mode, and as there is no authority to tax, except what is con- ferred by the law, it must be strictly observed. An illegal and void assessment is no assessment at all ; it is a nullity, and authorizes no person to act under or enforce it." § 221. A similar decision was made by the Supreme Court of Illinois in the case of Marsh v. Chesnut.^ The revenue law required the assessor to complete his assessment, and return the same to the clerk of the county commissioners' court on 1 Head v. Providence Ins. Co., 2 Cranch (U. S.), 127; Broughton u. Manchester, etc., Water- Works, 3 Bam. & Aid. 1; Slark v. Highgate Archway Co., 5 Taunt. 792; New Tork Firemen Ins. Co. v. Ely, 5 Conn. 560. * 14 HI. 223; see also Brown v. Hogle, 30 id. 119. 205 § 221 OF THE LISTING AND VALUATION OP THE LAND. or before the first day of May, and it authorized parties inter- ested to apply at the ensuing June term of that court for the purpose of having the valuation of their property reduced. The list was not returned until June 3, which was the day of the sitting of the court. Ti-eat, C. J. : " The object of this provision is manifest. It is, that the owner shall have ample time and opportunity to ascertain the valuation put upon his property by the assessor, and if deemed exceMve, to make application to the court for the correction of the error. It was the intention of the legislature that at least one month should interveuB between the return of the assessment and the sitting of the court having the power to revise the doings of the assessor. This interval of time is allowed the owner to inspect the return and prepare for the hearing of his objec- tions to the assessment. This requisition of the statute is clearly imperative. It is made for the benefit of the owner, and cannot be dispensed with without his consent. A failure to observe it may seriously injure him. The courts have no power to declare it to be directory merely. Such a decision would virtually deprive a party of the protection which the legislature designed to afford him. Under such a construc- tion of the law the return might not be made until the court had adjourned, or at so late a day that he would have no opportunity either to examine the assessment or make prepa- ration to have it reviewed by the court. In either case he would lose the benefit of an appeal from the assessment, for the statute expressly provides that no .application to reduce the valuation shall be made after the June term of the court.- When this assessment was made, the law required the county commissioners' court to commence its session on the first Monday of June ; and the first Monday of Jun%, 1839 (the year the assessment was made), was the third day of that month ; so that the return of the assessor was not, in fact, made until the term of the court had commenced. The defendant had therefore no previous opportunity to inspect the return and prepare an application for a reduction of the assessment. We have no doubt that this direction to the asses- sor was intended to be compulsory, and that a failure by him 206 C0EE OP FAILURE TO EETUBN. § 221 to comply with it renders the assessment invalid as against the owner of the land. The proceedings prescribed by the revenue laws are of a special and summary character, and contrary to the course of the common law. The result may often be to deprive a man of his property without any actual knowledge by him of the proceedings against it. It is a sound and inflexible rule of law that when special' pro- ceedings are authorized by statute, by which the estate of one man may be divested and transferred to another, every mate- rial provision of the statute must be complied with. The owner has the right to insist upon a strict performance of all the material requirements, and especially of those designed for his security, the non-observance of which may operate to his prejudice. On this principle alone the direction to the assessor to make his return by a given day is compul- sory, and its performance is indispensable to the validity of the assessment. Without a valid assessment the subse- quent proceedings necessarily fall, for the want of a basis upon which to rest. The case of the Thames Manufacturing Company v: Lathrop is directly in point." ^ Another branch of this case arose upon the construction of the two following statutes: 1. The act of Feb. 8, 1849, which provided that all assessments for the year 1848 and prior years, "which were not completed within the time required by law, be, and the same are hereby declared to be, aS good, valid, and effect- ual as if they had been made and returned in strict conform- ity to law." 2. The act of Feb. 15, 1851, which declared that when any assessor had theretofore or should there- 1 7 Conn. 550. To the same point see Sanderson v. La Salle, 57 HI. 441, where, upon an application for judgment, etc., the objection that the assess- ment was not returned within the time prescribed by the ordinance was held fatal to the application. Also held that the act of 1853, which provided that the failure to return the assessment in time should not vitiate, did not cure the omission in this case, as that act had no relation to assess- ments for corporate purposes, they being regulated by the revenue law of the municipality. Sanderson v. La Salle, supra. So a sale of land for taxes in 1854 is invalid if it is not shown that the assessor complied with the provisions of § 428 of the Code of 1852, in giving notice of his attend- ance in each precinct to assess taxes. Rivers v. Thompson, 43 Ala. 633. 207 § 223 OP THE LISTING AND VALUATION OP THE LAND. after fail " to complete or finish his assessment in the time required by law, such failure shall not vitiate such assess- ment, but the same shall be legal and valid as if the same had been completed in the time required by law." It was insisted that these acts cured the defect in the assessment ; but the court, doubting the power of the legislature to pass retrospective laws of this character, proceed to say, i' but they may be so construed as not to embrace cases like the present, and at the same time full effect; be given to their provisions. We think it was the intention of the legislature to legalize assessments that had not been perfected within the time pre- scribed, and upon which further proceedings were to be had ; and not to interfere with assessments where nothing remained to be done under them. This was the full scope and design of these statutes." § 222. The case of Billings v. Detten^ arose upon the con- struction of the 21st section of the Act of March 3, 1845, which required the assessment to be completed and returned by the first Monday of August, and the 26th section of the same act, which authorized an applicatioii by the owner for a reduction of the assessment at the September term, and not afterwards. The assessment in question was for the year 1845, and was not returned until October 30. The defence relied upon the same curative acts above recited, and the spe- cial act of Feb. 5, 1849, which read thus : " That the assess- ment of property for taxation in the county of Madison, State of Illinois, for the years 1845, 1846, and 1847, be, and the same are hereby legalized, any neglect or inability on the part of the assessor or assessors of said county to make and re- turn the assessment for either or all of said years within the time required by law, to the contrary notwithstanding." The land in controversy lay in the county of Madison. The court held that this case was distinguishable in no respect from the preceding one, and rendered judgment against the tax title. § 223. An Assessment that does not identify the Land is void.2 — A description sufficient to give notice to the taxpayer that his land is assessed is an essential which the legislature 1 15 III. 218. " Person v. O'Neal, 32 La. Ann. 236 (1880). 208 ASSESSMENT MUST IDENTIFY THE LAND. § 223 cannot dispense with, nor work a cure ^ upon any proceedings defective in that regard. But neither the owner nor those whose title is purely derivative from him can complain of the insufficiency of a description which is the same as that given in by the owner or his agent In his return to the assessors.^ So where the assessor describes his own land insuflSciently.-' " A mistake in the number of a lot will not vitiate the sale if the description otherwise is such that the land can be identi- fied. Evidence aliunde is admissible to identify. But when the description is alike applicable to either of two lots, it is error to submit the question of identity to the jury without evidence." * The rules which apply to private deeds and which arc intended to sustain them as the deliberate acts of both parties do not apply to tax deeds. Here it would not be proper to presume against the owner, for he is not the grantor. Reasonable presumptions arising from the well-known use of words and phrases will not, however, be excluded.® Parol evi- dence will be admitted to aid latent am})iguity.® Surplusage will be rejected. If the boundaries are given correctly, an error in the acreage will amount to nothing.'^ We give a large num- ber of examples of descriptions held insufficient^ and others held good.* The test is this : Is the description sufficient to identify the land and give notice to the owner of its assess- ment, or is it so defective that it might probably mislead the owner ? 10 " Notice, or at least the means of knowledge, is an essential element of every just proceeding which affects rights of persons or property. But how can the duty of the pay- ment of taxes be performed without the identity of the sub- ject-matter of the duty being made known to him who is to perform it, by name or by description ? " Either description, or a name which is descriptive by having become associated with the person or thing, is sufficient ; but " a name which has never become connected in any manner with the title or ^ § 250. 2 Lane ». March, 33 La. Ann. 557 (1881). » Jeffries v. Clark, 23 Kan. 449 (1880). * Marsh v. Nelson, 101 Pa. St. 57 (1882) ; Hess v. Herrington, 73 id. 438. « §§ 226, 232, 247. « §§ 24ft, 247. i § 248. 8 §§ 227-243. » § 244. lo § 227. VOL. I.— 14 209 § 223 OF THE LISTING AND VALUATION OP THE LAND. possession of land clearly infers no means of its identifica- tion. So the mathematical contents expressed in figures is not a mark of identity peculiar to the land." * It has been held that although there be no other element of description, if the name in which it is assessed has become linked to the land by some known claim of title or possession, it is a source of identification, and will support the assessmeut. An assess- ment of a certain number of acres of land without any other description or means of identity, in the name of a person unknown in connection with any title or possession of the land, will not support a sale of the land as unseated for taxes. An assessment is void only when it wholly fails to lead to identifi- cation.2 The land must in some way be identified from some- thing appearing in the assessment. Where the owner of un- seated land returns a description of it for taxation, and it is so assessed for two years, and then the assessment is so changed in name and quantity that the owner cannot recog- nize the tract, a sale is void.^ A sale of unseated lands passes title if the designation is sufficient for identification of. the lands (which is a question for the jury), and does not posi- tively mislead the owner ; and though such land is assessed by a wrong number or in a wrong name, the sale may still be upheld. It is the land and not the owner that is to be charged with the tax.* When city lots are assessed for taxa- tion, not according to the legally recorded plat of the pro- prietors, but by some subsequent plat made and caused to be recorded by the city or a stranger, without the consent or knowledge of the owner, the assessment is invalid.^ But a tax deed cannot be invalidated on the ground that the plat referred to in the description of the land is not a legal one, binding on the proprietors, if such plat was in proper form, 1 Philadelphia v. Miller, 49 Pa. St. 449 (1865). ^ Glass V. Gilbert, 58 Pa. St. 266, 290; Lyman v. Philadelphia, 56 id. 488; see also Brotherline v. Hammond, 69 id. 128, in \Yhich the name '• Dan'l Kladder" was held not idem sonans with " Dan'l Kritler," and not sufficient to identify the tracts. ' Brettaugh v. Locust Mt. Coal, etc. Co., 7 Am. Law Reg. (n. 8.) 109. * Woodside v. \Vilson, 32 Pa. St. 54 (1858). » Merton V. Dolphin, 28 Wis. 456. 210 ASSESSMENT MUST IDENTIFY THE LAND. § 224 duly recorded, and has been habitually treated as valid by the taxing officers with the knowledge of the land-owners, and no steps have been taken to vacate or correct the record.^ Where a part of a lot or block is dedicated to public uses, the part not dedicated may properly be designated by the number or name previously given to the whole.^ In Tennessee an assess- ment is not invalid by reason of failure to give the correct dimensions of a lot.^ Though the description is insufficient to hold the lands, yet the tax may be collected as a general tax against the true owner who is named in the duplicate, and who Ijad notice, and is a party to the record.* The court dis- tinguishes State V. Hardin,^ saying that the true owner in that case had no notice at any stage of the proceedings, and was not before the court to have his right determined. The charge by lien on the land being illegal, the tax could not be enforced against him when 'he was not a party to the record and had no notice. A patent ambiguity in the description of the land avoids the title.® § 224. An accurate and a pertinent description of the land embraced in the list is essential to its validity .'' The object of this requirement is, to enable the owner to ascertain from the list itself that the tax charged against him has been assessed upon his land, and not upon that of a stranger. Besides, the list is the foundation of all the subsequent pro- ceedings. Each document wherein the land is designated must necessarily depend upon the list for the accuracy of its description. A false or mistaken description in the list runs through the warrant to collect, the advertisement, return, certificate, and deed.^ And even when an error is discovered 1 Finney ». Boyd, 26 Wis. 366; see also Janesville v. Markoe, 18 id. 350, 356, holding a similar description on an assessment roll sufficient. See also Simmons v. Johnson, 14 Wis. 523 (an execution sale); Villas y. lleynolds, 6 id. 214; but see also Johnstone v. Scott, 11 Mich. 232. 2 Ortman v. Giles, 9 Kan. 324. » Wands v. Brian, 13 Lea, 734 (1884). * State V. Union, 36 N. J. L. 313 (1873). « 5 Vroom. 79. « Cogburn v. Hunt, 54 Miss. 675; 57 id. 681. ' See Hubbell v. Weldon, Hill & Denio (N. Y.), 139; Greene v. Lunt, 58 Me. 518, 533. » See Yenda v. Wheeler, 9 Tex. 408. 211 § 226 OF THE LISTING AND VALUATION OP THE LAND. and corrected in either of the subsequent documents, a defect- ive listing is not cured by the amendment. It follows that unless a true description is contained in the list, the officer has no guide in advertising, selling, and conveying the land ; the former owner cannot know that his land is in jeopardy, and be ablp to save it by paying the tax ; nor can the pur- chaser at the tax sale find and locate the land after his purchase.! § 225. In the case last cited the court say : " In an assess- ment of taxes it is indispensably necessary that the lauds should be designated or described in such a manner as may lead the owners thereof to a knowledge of their being as- sessed ; otherwise it is impossible that they can or ought to be considered as knowing, and therefore delinquent, on ac- count of the non-payment of taxes, since they have no means afforded by the assessors, such as are clearly required by the several acts of assembly on the subject, of knowing or ascer- taining tliat their lands are assessed. To deprive them of the right to their lands by a sale of them for taxes without their having the I'equisite means afforded them of knowing and ascertaining that they have been assessed, would not only be unjust, but iniquitous in the extreme." § 226. Private Deeds and Tax Deeds coinpared? — A de- scription sufficiently certain to convey land between man and man, and which, if contained in an agreement to convey, would authorize a court of equity to decree a specific execution, will not answer in the proceedings to enforce the collection of a tax. In the case of private transactions, the courts, in construing the document, endeavor to collect the intention of the parties, and give that intention effect. If a latent ambiguity exists in the description, parol evidence is resorted to for the purpose of explaining it, and giving to the intention of the parties complete operation; and where the estate in- 1 Brown w. Dinsmoor, 3 N. H. 103; Tallman v. White, 2 N. Y. 66; Douglas 0. Dangerfield, 10 Ohio, 152; Turney ». Yeoman, 16 id. 24; Currie v. Fowler, 5 J. J. Marsh. (Ky.) 145; Dunn v. Ralyea, 6 Watts & S. (Pa.) 475. » See § 232. 212 ASSESSMENT MUST IDENTIFY THE LAND. § 226 tended to be conveyed is suflBciently described in the deed or other writing, the addition of a circumstance, false or mis- taken, will be rejected as surplusage, in order to carry that intention into effect. But in a tax deed words necessary to identify the land will not be supplied by intendment. In Orton V. Noouan,^ to sustain his claim of title to " a part of the northwest qr. of sec. 9, T. 7, R 22, east, described as lot 3 and bounded on the north by lands of Wolcott, east by land of Scharb, south by land of Worthly, and west by lands of Webber, being 5\ acres," plaintiff relied on a tax deed for « part of N. W. I, lot 3. N. by Wolcott, E. by Scharb, S, by Worthly, W. by Webber — 5 25-100 acres, of S. 9, T. 7, R. 22." It was held that the words " being," " known as," or " described as " will not be supplied by intendment between HABSISON STREET. 1. 10. i. 9. *■' U H H 76 « >4 a OQ 8. S 8. § >J . !Zl ■ S "S QD W ■< 4. 7. " ti c 5. i i 6. MAI (J STH BET. 1 23 Wis. 102. 213 § 226 OP THE LISTING AND VALUATION OP THE LAND. " N. W. ^ " and " lot 3," and the deed is void for uncertainty. But in Blakeley v. Bestor ^ the court applied the same reason- able rules as would obtain in the case of a private deed. The list described the locus in quo as " 20 feet on Main Street, by 72 feet deep, commencing 40 feet from the alley, undivided one half lot 6, block 7, Peoria." The plan on the preceding page will show the precise location of the land, according to the deci- sion. All of the subsequent proceedings omitted the depth of the lot ; namely, " by 72 feet deep." The sale was held valid, the court saying : " It is the duty of courts to give effect to the intent of parties, if it can be done consistently with the rules of law. In an ordinary deed, when twenty feet of a lot on a particular street is conveyed, it is understood to mean a strip of land twenty feet wide and running back the whole distance of the lot, be the same more or less. The construc- tion must be the same in a tax deed. The doctrine of strict construction, as applied to the execution of naked statutory powers, has no application to a question like this." This decision does not appear to be supported by any authority, no reasons are assigned for it, and it is directly in conflict with the great weight of authority. In Delorme v. Ferk ^ it was held that the description of the land in a tax deed as a certain specified lot in " block No. 19 to the village," etc. (instead of " in the village," etc.), would probably hare rendered the deed invalid for uncertainty before the passage of ch. 53, Laws of 1866, providing that " In all advertisements, certificates, papers, or proceedings relating to the sale or forfeiture of school, swamp, or university lands, or the assessment and collection of taxes and proceedings founded thereon, as well heretofore as hereafter, any description of lands which shall indicate the land intended with ordinary and reasonable cer- tainty, and which would be sufficient between grantor and grantee in an ordinary conveyance, shall be sufficient ; " but since that act such description is held to be sufficient. In tax proceedings the owner of the estate has nothing to do, — he intends nothing ; the government is acting, through its agents, in hostility to him, and with a view of enforcing the collec- 1 13 ni. 708. « 24 Wis. 201. 214 CASES OP INSUFFICIENT DESCRIPTION. § 227 tion of a tax from him. If the oflScers undertake to list for him lands lying in one place for those which lie in another, or have no existence at all, they intend to do what the law, under which they profess to act, does not permit.^ § 227. Cases of Insufficient Description. — Tlie rule is laid down, that a listing is fatally defective and void if it contains such a falsity in the designation or description of the land listed as might probably mislead the owner and prevent him from ascerj:aining by the notices that his land is to be sold or redeemed. Such a mistake or falsity defeats one of the oljvi- ous and just purposes of the law, — that of giving the owner an opportunity of preventing the sale by paying the tax.^ Thus, in the case last cited the deed and list contained this description of the land in question : " All that certain piece of land situated in the county of Onondaga, etc., being what was taxed and returned to the comptroller's office from the town of Salina, as that part of block twenty-nine, in the village of Lodi, which is bounded west by David S. Colvin's, thence north to lands of Philo D. Mickles & Co., east by lands of Levi Chapman, and south by Foot Street." This was a true description of the lot in all respects, except the name of the village where it lay. There was a tract of land three fourths of a mile distant, called Lodi, laid off into lots and blocks, but never incorporated as a village, and, in fact, annexed to Syracuse; and it was further pi-oved that there was no lot or block in Lodi which answered to the description in the list and deed. The court held the sale void, saying: " In this assessment there was a fatal falsity in describing the parcel of land to be taxed. It was described as situate in Lodi, whereas it lay in Syracuse. A land-owner, exercising ordi- nary diligence in searching the volume of advertisements to ascertain whether his lands are to be sold for taxes, or are to be redeemed after sale, looks under the appropriate head, that is to say, under the name of the tract or place where his 1 Tallman v. White, 2 N. Y. 66; Perkins's Lessee v. Dibble, 10 Ohio, 433; see also Griffin v. Creppin, 60 Me. 271. « Tallman v. White, 2 N. Y. 66. And see Yenda v. Wheeler, 9 Tex. 408. 215 §228 OF THE LISTING AND VALUATION OP THE LAND. lands lie, and not elsewhere. He might therefore be misled and deceived by such a mistake as was made in this case ; because, for land lying in the village of Syracuse he would look under that head, and not under that of Lodi. If, instead of looking at the advertisement, the owner, in the present case, had addressed a note to the comptroller's office, inquiring whether block number twenty-nine, in the village of Syracuse, was returned for unpaid taxes, and liable to be sold, he would undoubtedly have received an answer in the negative, because the lot in question would not be found returned and entered in its proper place. It is plain that the misdescription would probably mislead, and it is therefore fatal to the validity of the assessment." § 228. In Lafferty''s Lessee v. Byers} the land was thus listed : — Name. No. of Entry. Origioal Proprietor. Ori^nal Quaatity. Watercourse. Acres Rate. Tax. Haines, John. 4401 Haines, John. 170 Mad River. 73 2 39.22 The court instructed the jury that the description con- tained in the list was so imperfect that no valid- sale of the land in question could be made under it. On motion for a new trial this ruling was sustained, the court saying; "In this case the whole original entry was listed by its then owner, Haines, and perhaps was sufficiently described by its number and watercourse ; but ninety-seven acres had been transferred to another name, leaving seventy-three acres still standing to Haines. What seventy-three acres ? In common, or separate ? If separate, in what part of the lot does it lie ? The answers to these questions materially affect the price. Without them no such information is communicated to the public as is calculated to produce a fair competition, and no prudent man will offer its value in his bid. The description, therefore, is not adapted to promote a fair sale, and it must be holden insufficient." 216 5 Ohio, 458. CASES OP INSUFFICIENT DESCRIPTION. § 230 § 229. In the Lessee of Massie's Heirs v. LoTig ^ the de- fendant claimed title to part of out-lot number forty-three, in the town of Chillicothe. The list, in one part, set forth a tax upon " part of out-lot forty-three," in another, " one acre out of out-lot forty-three." The listing was in the name of Edward Long. Parol evidence was offered to show that the " one acre " named in the list was on the north quarter, where Long , resided. 'The evidence was rejected. The Supreme Court held: (1) That the description was too vague and uncertain ; and (2) That parol evidence was inadmissible to locate, the land. § 230. In TreoiCs Lessee v. Emerick ^ the description in the list, or duplicate, was as follows : " Sixty acres, part of the north half of Section 13, Town. 8, Range 4, etc.," and the sale was held void. In Detroit Young Men\s Society v. Detroit * the following description in an assessment and tax roll was held void for uncertainty : — " Young Men's Society — Gov. & J. P. \ Jeff. Av. N 45 feet — W pt lot 11 sec. 1 I B. 2." & E pt lot 10 sec. 1. J In Stewart v. Aten's Lessee * the description upon the dupli- cate, "150 acres, part of Section 36, N. W. corner," was held defective, unless the 150 acres were situate in the N. W. corner of the section, and in a square form ; and a sale of a rectangular plat in that corner was held invalid. And in Head v. James,* the description " north and west part S. E. \ Sec. 4, T. 4, R. 12, acres 50," in the assessment and sale, was considered so entirely void as to create no cloud upon the title, and not a subject of proceedings to annul in a court of equity. The State conveyed -to A the southwest corner of township No. 6, containing about 6,700 acres, and conveyed the balance of the township, about 10,000 acres, to B, through whom it was afterwards divided among sundry owners. The 1 2 Ohio, 287; s. c. 1-4 Ohio Cond. 304. « 6 Ohio, 301. » 3 Mich. 172. « 5 Ohio St. 257. 6 13 Wis. 641. 217 § 231 OF THE LISTING AND VALUATION OF THE LAND. lots were assessed as " S. W. J range 4, No. 6," and " |- range 4, No. 6," and the assessment was held void for uncertainty.^ Where the description in an advertisement is " f of block 4 in," etc., the proceedings are void for uncertainty.^ § 231. In Douglas v. Dangerfield^ the facts were, that Theodoric Bland entered 1333J acres of land, on part of mili- tary warrant number 209, the number of the entry being 1122. It was entered for taxation upon the list thus : — Present Owner. o c ll £1 3t \ratercourse. Tax.Int'st, and Penalty, 1828, and Tax 1829 Remarks on the day of Sale by the Auditor. Bland, Theo. Dangevfleld, W. 1122 1122 Bland, T. Same. 1333 l,3a3i Rattlesnake. Same. 485 846 S2P5 513 D. C. U 6 28 6 11 25 SoldtoR.SougliEa. Same. ," ■ , On the duplicate between these two entries there were nu- merous other names. It would seem that after the entry by Bland he sold 846 acres of the land to Dangerfield, which accounts for the fact that the land was listed in the name of each. The sale was held void. By the court : " In the case before the court there was an entire survey of 1333| acres. Of this survey, 485 acres were charged on the duplicate with taxes as the property of Theodoric Bland, and were so adver- tised for sale. In what part of the tract was this 485 acres located ? We are not informed, either by the duplicate, or by the advertisement. It is altogether uncertain. The same remark may be made with respect to the 846 acres taxed in the name of Dangerfield. The complainants attempt to avoid this difficulty by assuming that this defect is caused by the sale, alleging that as both tracts constitute the whole survey, and as both were sold to one person, there can be no diffi- culty about the location. If, however, there was error in the duplicate and advertisement, that cannot be cured by a sub- sequent sale and purchase. The two parcels must have been 1 Adams v. Larrabee, 46 Me. 516. » Bidwell V. Coleman, 11 Minn. 78. » 10 Ohio, 152; see also Atwell v. Zeluff, 26 Mich. 118, 121. 218 CASES OP INSUFFICIENT DESCRIPTION. §23: sold separately, or the sale would be void ; and the case must be decided as it would have been had the sales been made to different individuals. This case is like that of Lafferty v. Byers, in which the sale was held void ; and upon the author- ity of that case we hold this sale to be void." § 232. In Perhins's Lessee v. Dibble^ the land was thus listed : — Ownera. Baage. Town. Sectioa. Lot. Acres. Tax. Jos. Teomans. 3' 13 1 9 and 9 north part. 100 S. C. H. 3 49 5 The map in the county auditor's oflBce showed how the land described in the list was located, and was admitted in evi- dence, subject to objection. The court, after stating that upon the facts there would be no difficulty in finding the land, had it been conveyed by a similar description in a deed, proceed to say : " But although this description might be suffi- ciently certain in a deed, it does not follow that it is suffi- ciently certain to maintain a sale for taxes. In order that such sale may be sustained, it is necessary that all the requi- sitions of the law under which they are made should have been complied with, and any departure from these requisitions will defeat the sale. Such has been the uniform decision of this court," The law under which this sale was made is the act of Feb. 3, 1835, section ten of which required the assessor to take a list of all taxable property, etc., and for that purpose it was made his duty to visit each house in the county, etc. ; and section eleven provided that the list " shall particularly set forth the name of the owner or owners, the number of acres of land in eacli particular tract, lot, section, or subdivision thereof, the range, township, section, quarter section, tract, lot, or part thereof, or the number of the entry, location, survey, or watercourse, as the nature of the general or particular surveys may require,_so as completely to desig- nate or identify the same." The court, in giving to this law » 10 Ohio, 433. 219 § 233 OF THE LISTING AND VALUATION OF THE LAND. a construction, arrived at the conclusion that the listing of the land in controversy was not in conformity to the law, and pronounced judgment accordingly, saying : " The great object here is to have the lists so made out as to designate and iden- tify the land, and the different modes of division in the differ- ent parts of the State referred to, whatever that division may be, whether into entries and surveys, or into townships, sec- tions, quarter sections, tracts, or lots ; the number of acres in each division or subdivision must be separately and partic- ularly set forth. If the owner of the land does not furnish a list, it is made the duty of the assessor to make it out ; and having taken these lists, and having affixed a value to the property, it is his duty to return 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 should be no mistake, the thirty-ninth section of the act describes 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 partic- ularly set forth. In the case now before us this was not done ; the description is, one hundred acres in the north part of two Jots. It does not show the number of acres in each particular lot, and is not in this respect in conformity with the law. No case precisely like the one before us has ever been decided by the court ; but, adopting the principle by which we have been governed in cases somewhat analogous, we must hold that this tax sale was void, and that the deed made in pursuance thereof conveyed no title." § 233. In Turney v. Yeoman^ which was a bill in chancery for a partition, the facts were that survey numbered 988, calling for one thousand acres, was patented by the United States to Hector McNeal and Joseph and Robert Wilkins, as tenants in common. The plaintiff claimed title to an un- divided third of said survey, being the interest of the said McNeal, under and by virtue of a sale thereof for taxes, made July 8, 1833. The land was listed for taxation as three hun- 1 16 Ohio, 24. 220 CASES OF INSUFFICIENT DESCRIPTION. § 233 dred and thirty -three acres in the original survey of one thousand, without specifying in what part of the survey it lay. The law under which the sale took place made the deed prima facie evidence of the regularity of all the pro- ceedings. The court held the listing void, and that no title passed to the purchaser. Read, J., delivered the opinion • " The only question necessary to be considered in this case is, whether the land sold was sufficiently described in the listing for taxation to pass the title under the sale, etc. It is sought to cure the defective description in the listing by the description and recitals in the deed, etc. If the de- scription and recitals in the tax deed were of absolute force, and could not be contradicted, the complainant would be en- titled to the relief sought, under the statute which authorizes the purchaser at tax sales of an individual interest to have partition among the tenants in common. But the late decision of this court, which gives effect to tax deeds without other proof to support them, by virtue of the statute wliich declares they shall be prima facie evidence of title, does not prevent said sale from being questioned and set aside, by showing that the requisition of th« statute autliorizing and prescribing the mode of tax sales had not been complied with. It. merely changes the onus of proof. 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 description and recitals in the deed, or other proof. The land listed for taxation must be described with sufficient certainty to point out what particular lands, and the description in the deed is limited to the description in the listing. 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 per- mitted to question a tax deed by showing that he failed to perform his .duty by giving a wrong or vague description. It would have been well in the first instance, perhaps, to have held this doctrine ; but the opposite principle has always been observed, and been too frequently asserted to be disturbed, except by legislative interference, which would give it only a prospective effect. The land is not described in the listing 221 § 234 OP THE LISTING AND VALUATION OP THE LAND. as land held in common, not as an undivided interest of 333 acres in the original survey of 1000, but simply as 333 acres somewhere in the original survey of 1000, without specifying in what part of such survey. It is precisely the same as the case of Lafferty's Lessee v. Byers,^ which was a listing of 73 acres in a survey of 170. It was held not to be sufficiently certain ; and numerous decisions support the same principle, and it never has been otherwise decided. We hold, therefore, that the tax deed is invalid, because the land was not suffi- ciently listed for taxation." § 234. In HanneVs Lessee v. Smith^ the description was " 30 feet between Chestnut and Elizabeth streets ; value $210 ; tax for 1841, $5.25." By the court : « It is admitted that according to numerous decisions of this court, here- tofore made upon this subject, this description is defective ; but it is claimed that these decisions are all wrong, and that this court have been led into error by following the decision of the Supreme Court of the United States in the case of Stead's Executors v. Course ; and the opinion of Judge Marshall in that case has been commented on with no little severity. It may 6e that the counsel is right, and that the Supreme Court of the United States and this court are all wrong. But we generally feel that we are pretty well fortified if our decisions are sustained by the authority of the highest court in the Union, etc. But, aside from the decisions of this court, is the description of the land, as entered upon the duplicate, sufficient? The law requires ' a pertinent description of the property, so as to identify the same.' The number of the lot is not given. It is not stated whether it is an entire lot, or a part of the lot. It does not appear whether it is thirty feet front or thirty feet square; and if thirty 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." So where neither number of square nor of lot, nor name of street, is given, the assess- ment does not sufficiently identify the land under the Louisi- I 5 Ohio, 458. ^ 15 Ohio, 134. 222 CASES OF INSUFFICIENT DESCEIPTION. § 236 ana statutfe of 1847.^ But an assessment on "balance of land on Rancho A, 10,090 acres at four dollars per acre, $40,360," was held valid, it appearing by the assessment roll that the part of the ranch not so assessed was comprehended within the plat of a town, certain lots in which were assessed on the same list to the same ovvner.^ § 235. In Richardson v. Stated which was a suit for taxes, under a statute requiring the intervention of judicial pro- ceedings in the collection of taxes, the list described the land as " 56 acres in the southeast quarter of section 8, township 12, range 13 ; " and the description was held too imperfect to authorize a judgment against the land. § 236. In Currie v. Fowler,* which was an ejectment by the appellee against the appellant, the former claimed under a tax deed. The law required that the list should mention the watercourse upon which the land was situated. The land in question was entered as lying upon the waters of " Big Boone," while the list described it as lying upon the borders of " Bank Lick." The court held the sale void. " The design of the law in requiring the owners of the land to state the watercourse upon which it was situated, in his list of taxable property, was twofold : (1) To identify the tract, and to en- able the sheriff in his advertisement to describe it accurately if it became necessary to sell it ; (2) To enable those who might be disposed to purchase, to find it by the description, ascertain its value, and regulate their bids accordingly. The sheriff advertised and sold five thousand acres on Bank Lick, and gave liis certificate accordingly. When the surveyor there- after surveyed Big Boone, and the slieriff afterwards con- veyed the land tiius surveyed, they departed from the law, and so far their acts conveyed no title. We know of no precedent for getting over a variance in the watercourse, and we are not disposed to make one. Bidders and purchasers have no right to complain, when they purchase land upon one stream, that they must find it there, or not get it at all. We are not dis- * AVoolfolk V. Foubene, 15 La. Ann. 15. 2 Patten v. Green, 13 Cal. 325. » 5 Blackf. (Ind.) 51. * 5 J. J. Marsh. (Ky.) 145. 223 § 237 OP THE LISTING AND VALUATION OF THE LAND. posed to help them out of their speculations, although we will give them full justice by presuming that all was right, until the contrary appears. If, in the present case, the sheriff had ad- vertised land for sale as being land lying on Big Boone, per- sons might, for anything known to us, have attended the sale, and paid the taxes for half the quantity claimed by Fowler. It was the sheriff's duty to advertise, however, in pursuance of the auditor's transcript, and to sell accordingly ; the error consists in going to a different quarter of the country after- wards, to hunt the land." , § 237. In LacKman v. Clarlc ^ a description of the property as " a ranch commonly known as ' Clark's Ranch,' situated on the Auburn road, two miles south of Grass Valley, in Nevada County, State of California," was held insufficient, the statute requiring that land outside of a city or incorporated town should be described by metes and bounds ; the number of acres as nearly as possible, and the locality and township, should be given. So " house and lot north side of Commer- cial Street, formerly owned by Belle Creole, also brick store north side of Commercial Street, and second from the corner of Pine and Commercial, including lot and all the appurte- nances, seven thousand dollars," there 'being at the top of the page containing description the words, " Nevada County, Ne- vada Township, Nevada City," is fatally defective in failing to give metes and bounds, or lots and fractions of lots.^ So a tax deed describing the property as "A lot on Dupont Street, 137 feet and 6 inches from the northwest corner of Washington Street, with the improvements thereon, 12 X 100," is void for uncertainty in the description.^ "The unsold portion of eleven square leagues of land, known as Los Mokelamos," is fatally defective.* In People v. Flint* the following description was held insufficient: — 1 14 Cal. 131. » Kelsey t'. Abbott, 13 Cal. 609. > Keane v. Cannovan, 21 Cal. 291; see also Garwood v. Hastings, 38 Cal. 216, 224. * People I). Pico, 20 Cal. 595. « 39 Cal. 670. 224 CASES OP INSUrnCIENT DESCRIPTION. § 238 « 81.160 acres grazing land, value f 32.464 18.193 $50,657.", So " Los Mariposa or Fremont Grrant [describing it by metes and bounds], less the town lots sold in Bear Valley and Mariposa," was held insuflScient.^ § 238. In Brown v. Binsmoor ^ the statute provided " that the selectmen, etc., shall make out in writing uuder .their hands, and deliver the same to the several collectors, etc., a list of* all such assessments, and insert therein the name of the owner, if known, otherwise the name of the original pro- prietor, and the number of acres taxed, and the number of the lot and range ; and the proportion of each assessment to each lot or tract of land taxed shall be set against said lot or tract of land in the list aforesaid ; and if any building of a non-resident shall be taxed, the number of the lot, or other description of the land whereon it stands, shall be mentioned in said list. And if the name of the owner and the original proprietor of any land be unknown, the quantity of land, the number of the range and lot, if lotted, otherwise such de- scription of the land taxed as it is usually known by, being inserted in said list, shall be a suflBcient description of said land." The land in controversy lay in Chester, the former owner resided in Londonderry, and was inserted in the list as a non-resident proprietor, but his land was not described in the list. It was contended by those who argued against the validity of the tax sale, that where the owner is known, the statute requires no description of the land taxed ; that it is only in cases wliere the owner is unknown, that the number of the lot and range, or some description of the land, is re- quired to be inserted. The other side contended that not only the name of the owner, or original proprietor, if known, must be inserted, but also the number of acres taxed, and the number of the range and lot. The court, in deciding the question, say that " such is the language of the statute, that 1 People V. Mariposa Co., 31 Cal. 196. « 3 N. H. 103. VOL. I. — 15 225 § 241 OP THE LISTING AND VALUATION OP THE LAND. it may be construed either way," and conclude that the name of the owner and a description of the land was the true con- struction, and the list was held void because the range and lot were not set forth. In Ains worth v. Dean ^ the listing and subsequent proceedings were held void ; the facts of the case, the statute, and the reasoning of the court sufiBciently appear in the following extract from the opinion delivered in the cause : " It is defective, because neither the number of the lot nor of the range is inserted, though it appears that the land was lotted. The land is described as ' sixty-eight acres, part of the governor's right.' This description is alto- gether too indefinite. The statute provides that the descrip- tion must be such ' as the land may readily be known by,' and this description does not answer such a requirement." § 289. In the Bank of Utica v. Mersereau^ there was a sale of 800 acres of land, to be laid out in a square form, as nearly as might be, in the northwest corner of 2,401 acres, in township one, assessed to John Garrettson, and described in the assessment list as " bounded On the south by Joshua Mersereau and others, west by the town line, north by Rath- born and the town line, and east by the Tioga River." There was no proof that Rathborn ever owned any land in the town- ship, according to the call in the list and deed, and the de- scription was held void for uncertainty. § 240. An assessment describing the lands as " two hun- dred acres, of land lying in Dale County" is void for uncer- tainty, and proceedings in probate to condemn the lands are void. The court depends for its jurisdiction on the validity of the assessment, and this being void cannot be aided by a more perfect description in the judgment of condemnation.^ § 241. The description of the realty must be certain, or re- fer to something by which it may be made certain ; and the following description was held insufficient within that rule : "2 acres of land, house, boom, and privileges, shore of lots one and two." * Where lands are described as " 137 A. of S. 1 21 N. H. 400. a 3 Barb. Ch. (N. T.) 528. 8 Driggers ». Cassaday, 71 Ala. 530 (1882). * Orono V. Veazie, 61 Me. 431. 226 CASES OP INSUFFICIENT DESCRIPTION. § 243 E. \ sec. 27, town. 20, range 12 ; " " 2^ A. of N. J of W., ^ of S. W., of S. E., i sec. 8, town, 19, range 12 ; " and " 5 A. N. W. J sec. 2, town. 19, range 11," there being nothing outside of the descriptions to identify the land, the proceedings are void.^ § 242. " A tract of land entered by F. in sec. 13, town- ship 13, range 7," is too indefinite.^ In Greene v. Lunt ^ the following descriptions were held insufficient : " Part of the two river lots joining N. Walker's and Pettingill farm, lots 1 and 2, range 1, 100 acres ; " "A piece of land northwesterly of aud adjoining S. G. Wait's land, lot 5, range 3, 6 acres ; " " One half of lot northwesterly of Luther Jackson's farm, lot 2, range 2, 50 acres ; " " The lot joining W. B. Walton's farm, lot 1, range 2, 55 acres ; " "A piece of land between A. J. Churchill and J. H. Weymouth, part of lot 7, range 3, 27 acres ; " " One half island opposite S. Holmes, 15 acres ; " " A part of E. A. Pollard's farm, lot 6, range o, 25 acres ; " " Part of lot joining Josiah Hall's, lot 1, range 5, 40 acres ; " " The lot being southerly and joining J. P. Hopkins's and S. R. Newell's woodland, lot 3, range 4, 60 acres ; " " Half of lot westerly from J. S. Holmes's farm and adjoining it, lot 4, range 2, 50 acres ; " "A piece of land easterly of Wortlily Pond, joining W. Harlen's farm, lot 7, range 5, 8 acres." And the following were held sufficient : " The island opposite N. Walker's, and above Alden's Ferry ; " " Second lot from 5. Holmes, lot 4, range 3, 100 acres ; " « Second lot from D. L. Conant's land, lot 3, range 3, 85 acres ;" "Larry Farm on the hill formerly owned by S. Roberts, being part of lot 1, in ranges 3 and 4, 75 acres ; " and " Second lot from J. Lunt's, lot 6, range 3, 100 acres." This decision was under R. S. ch. 6, § 150, requiring a notice to be given by the collector, " designating the name of the owner if known, the right lot and range, the number of acres as near as may be, . . . and such other short description as is necessary to render it certain and plain." § 243. " Cooper, James, 5 acres, section 24, T. 4, F. R. 1," 1 Commissioners of Lyon County v. Goddard, 22 Kan. 389 (1879). 2 Lake Co. v. Sulphur Bank Quicksilver Mining Co., 66 Cal. 17 (1884). « 58 Me. 518. 227 § 244 OP THE LISTING AND TALUATION OP THE LAND. is not a sufficient description, in the tax list, advertisements etc., and a deed made in consequence of a sale under such de- scription is void.^ The following descriptions have been held void for uncertainty : " 100 acres, sec. 4, township 7, range 4 . » 2 «. Haines, John, entry 4401, original quantity 170, water- course. Mad River, acres 73." (The court said, " What 73 acres ? " 3) " Sixty acres, part of the N. half of sec. 13 ;" * 333 acres listed as part of an original survey of 1000 acres, with- out specifying what part.® § 244. Specific Descriptions held good. — Where certain wUd lands were located in a certain county, and further de- scribed as " No. 8, R. 3, do. do. do," the words " do." being under the entry, " W. of E. line of State," the description was shown to have acquired a well-known signification from a usage of more than fifty years, and was therefore sufficient.^ In St. Peter's Church v. Scott County ^ it was held that the pro- vision of § 27 of Laws of 1860, p. 26, and Laws of 1861, pp. 21, 22, requiring that if part of a lot is listed, the return shall state the number of feet on the principal street on which it abuts, does not apply to the annual return required by § 22 of the act ; and that on a return under the latter section, in the ab- sence of specific provision affecting the question, any descrip- tion which is sufficiently definite and certain to ascertain tlie premises is good ; thus, " Si of lots 9 and 10 in Block 49, Shakopee City," was held sufficiently definite. Under the New Jersey statute,* requiring a designation of the real estate as- sessed by such short description as will be sufficient to ascer- tain the location and extent thereof, abbreviations may be used so long as they are intelligible, and leave no uncertainty as to the property upon which the imposition is intended to be placed ; the following description was accordingly held suffi- cient : " Joseph L. Alden, No. 16 Front Street, real estate, ' Raymond v. Longwovth, 14 How. 7S (1852). * Lessee of Matthews v. Thompson, 3 Ohio, 272 (1827). » LafEerty's Lessee v. Byers, 5 Ohio, 458 (1832). * Treon's Lessee v. Emerick, 6 Ohio, 399 (1834). 6 Turney v. Yeoman, 16 Ohio, 25 (1847). 6 Hodgdon v Bm-leigh, 4 Fed. Rep. Ill (1880). ' 12 Minn. 395. s jfix. Dig. 952, pi. 92. 228 DESCRIPTIONS HELD GOOD. § 246 H. L. and stable." ^ But " Knapp and McPherson or R. P. association; number of acres, 2; valuation of real estate, $50,000 ; amount taxable, $50,000," is not a sufficient de- scription within said statute.^ § 245. The words " Lot two, and parts of lots one and three, Haley plat, in the town of H.," are sufficient to let in parol evidence to identify the land under a law providing that a description " as a part of a designated tract or division shall be held to embrace such part as is the subject of separate ownership as one tract." ^ Under the Nevada statute providing that lands shall be "described by metes and bounds or by common designation or names ; if situated within the limits of any city or incorporated town, described by lots or fractions of lots ; if without said limits, giving the number of acres as near as can be conveniently ascertained, and the location and township where situated," two contiguous lots owned by the same individual in a city may be jointly assessed ; and the block and number are a sufficient description.* § 246. Wliere, in the description, initial letters, abbreviar tions, and figures were used, thus : " E. ^ S. W. ^, section 24, town. 3, south of range 7 west, 80 acres, etc.," the proceeding was held regular." " Steam mill in South Lansing " was held a sufficient description in an assessment roll in Shaw v. Orr.* " Block No. 25 less a lot belonging to Bryant, 70 X 137^, in the S. E. corner," was held sufficient.^ So four hundred acres of land situated on the V. & J. road in township No. 1 of the county of A. and State of C, and commonly known as the " New York Eancho," was held sufficient under Revenue Act of 1857, under which the assessment of lands outside of a city or incorporated town need not describe the land by metes and bounds.* And it is sufficient to describe the tract by its 1 State V. Newark, 36 N. J. L. 288. " State V. Township of Union, 36 N. J. L. 309. « Dodds K. Marx, 63 Miss. 443 (1886). * Wriglit V. Cradlebaugh, 3 Nev. 341. » Sibley w. Smith, 2 Mich. 486, 503. See Act No. 169, Sess. Laws of Mich, of 1869, § 23, sub. 7. ' 30 Iowa, 355. ' Wetherbee v. Dunn, 32 Cal. 106. « High V. Shoemaker, 22 Cal. 363. 229 § 247 OF THE LISTING AND VALUATION OP THE LAND. name merely.^ So where a tract of land was commonly known and described as the " vacant strip," and was so assessed for taxation, a description in a tax deed of a part thereof sold for taxes as the " north one-third of the north half of the vacant strip," was held sufficient ; and this where the northerly and southerly boundaries (which were parallel) deflected largely from a due east and west line.^ Blocks of land not subdivided are properly assessed and described for taxation by blocks ; if they have been subdivided, still that description is sufficient when they are assessed to the owner.* § 247. Ch. 53, General Laws of 1866 of Wisconsin, pro- vides as follows : " In all advertisements, certificates, papers, or proceedings relating to the . . . assessment and collection of taxes and proceedings founded thereon, . . . any descrip- tion of lands which shall indicate the land intended witli ordinary and reasonable certainty, and which would be suffi- cient between grantor and grantee in an ordinary conveyance, shall be sufficient." Under this statute a tax deed purport- ing to convey the " north twenty feet " of a certain lot the boundary lines of which deflected twenty-five degrees from the cardinal points of the compass, said lot being one hundred and twenty feet in depth along its northerly boun- dary and sixty feet wide along its westerly boundary, the northerly and westerly boundaries being usually called the ." north " and " west " lines respectively, and said lot being assessed in the year for whose taxes the deed was given, in two portions described as the " north twenty feet " and the " south forty feet," was held sufficient. It was held that the ambiguity, if any, was a latent one, and explainable by parol evidence, such as evidence showing the sense in which the phrase " north twenty feet " was usually understood and applied among real-estate dealers, conveyancers, etc., in bar- gaining, selling, etc., fractional lots in the plat referred to.* 1 People B. Leet, 23 Cal. 161. = Whitney v. Gunderson, 31 Wis. 359. » People V. Culverwell, 44 Cal. 620; see also People w. Morse, 43 Cal. 534. * Jenkins v. Sharpf, 27 Wis. 472. 230 DESCRIPTIONS HELD GOOD. § 248 In People v. Crockett ^ it was held that in describing a tract which consists of a specific quantity granted by the Mexican government to be selected within the boundaries of a larger tract, if the assessment is as definite as the case will admit, and such as would pass the property in a deed, it is sufficient. § 248. In Gilman v. Eiopelle ^ the description in the tax deed was as follows : " The following described land situated in the county of Wayne, to wit: that part of private claim sixty-one, lying east of the north branch of the River Ecorse, in township 3, south of range 11 east, containing twenty acres and seventy-four one-hundredths of an acre, more or less." The record in the case showed that the parcel de- scribed contained something like eighty acres of land. The plaintiff claimed that it was clearly the intention, in making the tax sale, to sell only twenty and seventy-four one- hundredth acres, and that it was impossible to locate this in any particular part of the larger quantity ; but the court held that " inasmuch as definite and permanent boundaries are given, the deed must be held to convey all the land within those boundaries, notwithstanding the quantity is much greater than that mentioned. This on the familiar principle that the incorrect portion of the description is to be rejected where that which remains is sufficient, and that definite permanent monuments are to control distance and quantity." It was also objected in the same case that this description was in- sufficient for purposes of assessment, because not being " the subdivision of any section authorized by the United States for the sale of public lands," it was necessary (under subdivision 2, § 16, S. L. 1843, p. 66) to " state the name or number of the lot or tract, or by what other lands it is bounded ; " but it was held that the description was sufficient ; that the requirement that the premises shall be described by the lands which bound them has reference to those cases in which the tract is not known by name or number. In this case the number of the lot a part of which was sold, and definite and well-known boundaries which at each end separate the part sold from the remainder, are given, which is sufficient. In 1 33 Cal. 150. 2 18 Mich. 145, 164. ,231 § 249 OP THE LISTING AND VALUATION OP THE LAND. French v. Patterson^ it is held that it is sufficient if the assessors so describe the land of non-residents taxed by them as to identify it with reasonable certainty ; and the follow- iiig description was held sufficient within that rule : " Orrin Emerson, or unknown, about 175 acres, 4* range, 17 school district, part of the Craig Lot, value $875, amount of tax $15.93." The same rule was also applied to the advertise- ment of sale. § 249. Admissibility of Parol to aid the Description. — If the land be so inaccurately described as to render its identity wholly uncertain, the proceedings are void. If the ambiguity is patent, no extrinsic evidence will aid it. But if the ambiguity is latent, parol evidence is admissible to render the matter certain, whether the faulty description be in the tax bill, the judgment, or the deed, or in all. If, however, with all the aid of extrinsic evidence the identity of the land is uncer- tain, the proceedings are void.^ A description that will iden- tify the land without difficulty is essential to the validity of the assessment roll, and the notice and deed must follow substan- tially the assessment description ; ^ otherwise the owner is de- prived of the benefit of the notices required by law. It would be impossible for him to know that his land was assessed, and where assessments were made upon certain lots, as in the plat known as " Arndt's Addition," when they were really in " Arndt's Second Addition," parol evidence was not admitted to supply the word second. Though the court said that if it had been shown that the lots really owned by the plaintiff in the second addition had not been assessed at all except by the above defective description, then the omission would appear as a merely clerical error, and the plaintiff could not recover back the taxes he had paid on the defective certificates.* 1 61 Me. 203. = Brown ». Walker, 11 Mo. App. 234 (1881); Judd v. Anderson, 51 Iowa, 345 (1879). » Rougelot V. Quick, 34 La. Ann. 126 (1882) ; Wilkins ». Tourtelott, 28 Kan. 842 (1882). In which latter case a description, "five acres out of the following tract," without means of determining what specific five acres were conveyed, was held bad. < Curtis V. Supervisors, 22 Wis. 171 (1867). 232. CURE OP DEFECTIVE DESCRIPTION. § 250 § 250. Gwre of Defective Description. — Under the curative act of Pennsylvania, which declares that " no irregularity in the assessment" shall invalidate the sale, it has been held that an imperfect description, but one calculated to inform the owner that his land has been assessed, will be regarded as sufficient.' And in Williston v. Colkett^ a tract of land described in a warrant as containing 999 acres, and which was originally assessed to the warrantee, and described by the number of the warrant, the name of the warrantee, and the number of acres, was reduced in quantity by a sale to 600 acres. Mann, who was the purchaser from the warrantee, neglected to list his portion of the tract ; the assessor inserted it in the list as unseated land, and described it as containing 200 acres, and Mann recognized this listing by paying taxes upon his portion for two years ; and the court held that (the number of acres being simply descriptive), as he had neglected to list the land, and had taken advantage of the mistake in the quantity for two years, the defect must be regarded as cured by the statute.* In People v. HoUaday * the majority of the court expressed themselves as unable to uphold or comprehend the distinction, in People v. Pico,^ between defects that could be cured and those which could not, and held that the legislature could cure all defects. This was unnecessary generalization, for the defect in this case was formal. Currey, J., concurred in the judgment on the facts, but dissented from the views in regard to legislative power, holding that while the legislature may heal infirmities arising from failure to pursue with exact precision the course pre- scribed in matters of a formal character, it could not cure ^vils affecting the substance of the assessment, for this would 1 Strauoh v. Shoemaker, 1 Watts & S. (Pa.) 175; McCoy v. Michew,. 7 id. 390 ; Dunden ». Snodgrass, 18 Pa. St. 151. The California statute, which gives a new remedy by civil action for taxes already due, and pro- vides that any informality in the levy or assessment shall not be set up in defence, is constitutional. People v. Seymour, 16 Cal. 332. 2 9 Pa. St. 38. 8 See also Brown v. Hays, 66 Pa. St. 235; Reading v. Finney, 73 id. 467; Glass v. Gilbei-t, 58 id. 266, 290. * 25 Cal. 305, 312 (1864). « 20 Cal. 595. 233 § 252 OP THE LISTING AND VALUATION OF THE LAND. be power to take property without due course of law. This is clearly the correct rule. The majority dictum would enable the legislature to deprive a citizen of his land, though he had had no notice of the proceedings taking his title, which doc- trine can find no home in the heart of authority or reason. § 251. The land must be listed according to its legal character, as seated or unseated, resident or non-resident, etc. ; otherwise the owner may be misled.^ The validity of the listing oftentimes depends upon the character of the land. Each State being governed by its own peculiar local policy, lands are divided into classes, a legal character is assigned to each, and the assessors are directed to list them accordingly. Sometimes a particular class is exempt from sale, and the tax made a charge upon the person or goods of the owner. It may be laid down as a general rule that wherever a confusion of these different classes takes place, and the requirements of the statute are disregarded by the officers charged with the duty of listing the land, the proceeding will be illegal and void. Where lauds which are resident property are put down with non-resident lands on the roll, the sale will not stand.^ The provisions in regard to the grouping of lands are imperative. The owner may be misled by failure to comply with the law. An assessment of land as non-resident that should be assessed as resident avoids the sale.^ § 252. In Pennsylvania, lands are divided into two classes for the purposes of taxation, — seated and unseated ; in other words, vacant and occupied lands. These are never blended together, but separate lists are required. Lands which are occupied are placed upon the seated lists; those which are vacant are listed as unseated.* No change can be made of the land from one list to the other, without the joint act of 1 See §§ 252-255. » Hanscom v. Hinman, 30 Mich. 420 (1874). » Perley ». Stanley, 59 N. H. 588 (1880). * In Pennsylvania, unseated land is debtor for taxes, and may be sold, no matter who may be the owner, or in whose name assessed. Reading ». Finney, ,73 Pa. St. 467. 234 UNSEATED AND NON-RESIDENT LANDS. § 253 the owner and the county commissioners and assessors. No lands can be sold unless they are unseated in point of fact, and regularly listed as such. The remedy of the State, for taxes due upon the seated list, is against the occupant alone. No lien exists upon the land itself, and where no personal property of the owner or occupant can be found, the tax is lost. In such cases the assessor has no authority to list the land, tjhe collector has no power to sell it, and the purchaser is chargeable with notice of the fact that the land is occu- pied, and purchases at his peril.^ [But by act of 1844, seated lands may also be sold for taxes, actual notice ^ of the sale being given by the treasurer of the county to the owner ; and the latter has one year from such time in which to redeem.^ But this act did not include road taxes. They are still a personal charge on the owners.*] § 253. The policy of this system of taxation is thus ex- plained in Burd v. Ramsay : ^ " The selling of lands for the trifling amount of taxes usually due upon them is always attended with inconvenience and vexation to the owners, who are often involved in trouble and expense by the sheer neglect of the collectors, who seldom make a personal demand. This, and not the amount to be paid, has been the cause of the re- pugnance constantly evinced to acts of Congress laying a land tax, which have always contained a provision for the sale of the land itself. Our State legislature, on the contrary, have * Young V. Martin, 2 Yeates (Pa.), 312; Owens v. Vanhook, 3 Watts (Pa.), 260; Patterson v. Blackmore, 9 id. 104; Armstrong County Com- missioners V. Smith, 10 id. 391; McKee v. Lamberton, 2 Watts and S. (Pa.) 107; Hockenbury v. Snyder, Id. 240; Cranmer v. Hall, 4 id. 36; Larimer v. M'Call, Id. 133; Smith v. McGrew, Id. 338. 2 This notice must be precise and full ; an unofficial and unauthorized notice is no notice. Broughton v. Journeay, 51 Pa.^ St. 31. ' Miller v. Gorman, 38 Pa. St. 309; see Broughton v. Jom-neay, 51 id. 31. Under this act land was placed on the seated list by owner, and sold as seated after it had in fact become unseated. It was held that the sale was void ; sales of seated land under this act pass title only when the land is in fact seated. Hathaway v. Elsbree, 54 Pa. St. 498. A return of land as " unimproved " describes unseated land. Ibid. * See Arthurs v. Smathers, 38 Pa. St. 40. * 9 Serg. & R. (Pa.) 109. 235 § 254 OP THE LISTING AND VALUATION OF THE LAND. ever been guided by the wise policy of not looking to the land in that class of cases which necessarily afford a reasonable probability of obtaining the tax from the person or chattels of the owner. They seem to have supposed that on every tract of land in actual occupancy sufficient personal property would be found to satisfy the demand by distress," etc. § 254. When Land is seated. — A tract of land ceases to be unseated as soon as it is occupied with a view to perma- nent use, and that occupancy may be said to commence with the moment of entry for the purpose of clearing the land.^ As soon as a person enters upon an unseated tract of land, whether under title, claim of title, as a tenant of the owner, or an intruder, and becomes a resident upon it, or without becoming a resident improves and occupies it in such a way as to furnish upon the land the means of making and levying the taxes by distress, it must be considered in law as seated, and no longer liable to be assessed with taxes, and sold for them if they remain unpaid. The officers need not inquire, nor are they bound to know, by what authority he has entered upon and taken possession of the land.'' Residence without cultivation, or cultivation without residence, or botli, combined, will constitute a seating of the land ; ^ and where the land is actually possessed by residence thereon, it cannot be sold for taxes, whether the occupier has personalty sufficient to pay the tax or not.* One in possession of a portion of a tract of land, having title or claiming title to the whole, is, in judgment of law, an occupant of the entire tract, and the 1 Wallace v. Scott, 7 Watts & S. (Pa.) 248; Milliken v. Benedict, 8 Pa. St. 169; Biddle v. Noble, 68 id. 289. '^ Campbell ». Wilson, 1 Watts (Pa.), 503; Larimer v. M'Call, 4 Watts & S. (Pa.) 13.S; M'Call v. Lorimer, 4 Watts (Pa.), 351. That the land is decreased in value by the lumbering or mining, etc., done upon it, does not alter the case. George v. Messinger, 73 Pa. St. 418; Lackawanna Iron, etc.,' Co. v. Fales, 55 id. 90. Cultivation is suflScient, without regard to the value of the product or its adequacy to discharge the taxes. George V. Messinger, supra. > Kennedy!). Daily, 6 Watts (Pa.), 269; Wilson n. Watterson, 4 Pa. St. 214 ; Hathaway ». Elsbree, 54 id. 498; George v. Messinger, 73 id. 418, and cases there cited. * CampbeU v. Wilson, 1 Watts (Pa.), 503. 236 UNSEATED AND NON-EESIDENT LANDS. § 254 vacant portions of it cannot be listed and sold as unseated.^ And the cultivation of several acres fixes the denomina- tion of the whole, and charges the person of the cultivator so as to render a sale for taxes illegal.^ But where a number of adjoining tracts warranted to different persons were conveyed in one body by courses and distances, all the warrants being recited, and were assessed in different tracts in the names of the respective warrantees and sold sepa- rately for taxes, and on one saw-mills had been erected by the owners of the whole, from whicli timber was to be supplied for igiianufacture at the mills, it was held that this did not constitute the whole one seated tract ; that the tax laws as to unseated lands treat them entirely in reference to the original warrants, when not otherwise directed by the owners.' And the quantity occupied is immaterial, so that the intent is manifest to take and hold possession of the entire tract. And the character of a tract as seated is not changed by the running of a new county line, which throws a portion of the woodland into the new county ; and the woodland thus cut off cannot be assessed as unseated.* So the improvement of part of a tract of land under a lease, whereby the tenant is to have the use of that part only, will render the whole tract seated, and prevent its being sold for taxes as " unseated " land.^ So . 1 Campbell v. Wilson, 1 Watts (Pa.), 503; Larimer v. M'Call, 4 Watts & S. (Pa.) 133, 351; Ellis t'. Hall, 19 Pa. St. 292; Mitchell v. Bratton, 5 Watts & S. (Pa.) 451 ; Biddle v. Noble, 68 Pa. St. 279. « Biddle v. Noble, 68 Pa. St. 279, 289, citing SheafEer v. McKabe, 2 Watts (Pa.), 421; Fish v. Brown, 5 id. 441. And where the owner, by articles reciting that M. owns an improvement on which he now resides, etc., agrees to sell him two hundred acres of a larger tract, so as not to interfere with the claim of any other settler, it was held that this does not so define the land as to sever it from the remainder of the tract so as to leave the remainder unseated. Biddle v. Noble, supra. " Heft u. Gepbart, 65 Pa. St. 510. Portions of distinct warrants, be- coming united in fact by purchase, may be returned and assessed in this new form by whatever designation their owner may choose, and be sold as a unit. Heft v. Gephart, supra; Harper v. McEeehan, 3 Watts & S. (Pa.) 238. * Ellis V. Hall, 19 Pa. St. 292; explained in Patton v. Long, 68 id. 260, 263. 6 Green v. Watson, 34 Pa. St. 332. 237 § 254 OP THE LISTING AND VALUATION OP THE LAND. a clearing, over the line of a tract, by an intruder, with full knowledge of its position, but without any act indicating an intention to claim a part of the tract to the exclusion of the residue, does not destroy the entirety of the tract, but the whole thereby becomes seated ; and its subsequent assessment and sale as unseated conveys no title.^ But where one, with or without color of title, takes possession of unseated lands belonging to another, and designates the extent of his claim, or the portion he means to occupy, by lines marked upon the ground, and confines himself within such lines, his possession will not be taken to extend beyond such lines, so as to give the character of seated to the rest of the tract.^ Wild lands may be seated (1) By residing on the land ; (2) By cultivation in such manner as to indicate a permanent occupation of it. Residence or cultivation of this character, even by an intruder, is sufficient ; but a mere digging of coal in the winter, with an abandonment of the land for the rest of the year, is not suffi- cient, and will not defeat a tax sale of the land as unseated land.* Where the owner of a parcel of seated land, in clear- ing and improving, encroached upon an adjoining unseated proprietor a few feet or yards, it was held that the encroach- ment would not deprive the latter of its legal character as unseated ; but the court intimated an opinion that an en- croachment of several acres would.* It would seem to be simply a question as to the intention of the intruder : if he entered upon the adjoining tract for the purpose of acquiring a right in hostility to the owner, he would become seated upon the land ; if he encroached under a mistaken belief as to the extent of his boundaries, his entry could not give char- acter to the land encroached upon as seated.^ It is evident that the quantity occupied is immaterial, where the intention * Jackson v. Flesher, I Grant's Cas. (Pa.) 459. And see Jackson v. Sassaman, 29 Pa. St. 106. 2 Mitchell V. Bratton, 5 Watts & S. (Pa.) 451. 8 Jackson v. Stoetzel. 87 Pa. St. 302 (1878). * Fish V. Brown, 5 Watts (Pa.), 441; Campbell ». Wilson, 1 id. 503. 6 See Forster v. M'Divit, 5 Watts & S. (Pa.) 859 ; Jennings v. Mc- Dowell, 25 Pa. St. 387. 238 UNSEATED AND NON-RESIDENT LANDS. § 254 is manifest to take possession of the entire tract.^ Where one is possessed of a part, cMiming title to the whole, and the tract is divided afterwards by the organization of a new county, and the vacant part of the tract is in the new county, this does not change the character of the land as seated.^ Where the original tract contains four hundred acres, a portion of which is occupied and listed as seated lands, and afterwards the owner sells one hundred acres of the tract, over which his occupancy did not extend, the portion sold loses its character of seated land.^ Where a tract had been divided, and part was seated and part unseated, and the whole was assessed together and sold for taxes, although the assessment was irregular, the sale passed a title to the part unseated, and the irregularity in assessment was such as would be cured by § 4 of the Act of March 13, 1815> But where an unseated tract descends to several heirs, and some of them sell and convey their undivided interest in the land to a stranger, who enters and occupies, the whole of the tract will be regarded as unseated.* The question whether lands are seated or unseated is a question of fact for a jury under proper instructions, unless the facts are admitted. The credi- bility of witnesses, though uncontradicted, is for the jury.* Where the land is unseated at the time of the assessment, but becomes seated before a sale takes place, a sale of it as un- seated will be sustained.'^ Where unseated land is assessed upon the seated list, it cannot be sold.^ And where the land is cultivated, it cannot be assessed as unseated, though the owner does not reside on it. And the assessor is not au- thorized to return it as such if there be marks of cultivation without residence, which puts him upon inquiry, without the J Ellis V. Hall, 19 Pa. St. 292. 2 Ibid. Campbell v. Wilson, 1 Watts (Pa.), 503. * Dietrick v. Mason, 57 Pa. St. 40. 6 Erwin v. Helm, 13 Serg. & R. (Pa.) 151. • Rosenburger v. Schull, 7 Watts (Pa.), 390; Madara v. Eversole, 62 Pa. St. 160, 165. ' Robinson v. Williams, 6 Watts (Pa.), 281; Murray v. Guilford, 8 id 548. ' Milliken b. Benedict, 8 Pa. St. 169. ^ 239 § 254 OP THE LISTING AND VALUATION OP THE LAND. clearest signs of abandonment.^ [And absence from the land for a little more than a year has been held insufficient aban- donment to render the land taxable as unseated laud.^] So if a tract of land which is in point of fact unseated be assessed as seated land, with the knowledge and assent of the owner and the commissioners of the county, it must be taken as seated so far as regards the assessment and collection of the taxes ; and a sale of it for taxes, as unseated, would be void. Land which is in fact unseated, and which has been assessed as seated by an ai-rangement with, and with the knowledge arid consent of the owner and the commissioners of the county, may, whenever it suits the interests or convenience of the county, upon giving reasonable notice to the owner, be transferred from the seated to the unseated list; but the assessor has no right to transfer such lands to the unseated list without reasonable notice to the owner (when practicable), and if he do so, a sale of it for taxes will be void.* But where unseated land had been on the seated list for many years, but had been on no list for three years including 1861, and on the triennial assessment it was returned as unseated, and sold in 1864 for the taxes of 1862 and 1863, it was held that under the circumstances this was an original assessment, and not a case requiring notice to the owner. The assessment of unseated lands on the seated list does not change its char- acter so as to render it incapable of sale for taxes. An owner claiming a right to be notified that his land is on the unseated list must have reason to expect that it was on the seated list.* But under the 41st section of the Act of April 29, 1844, for the sale of seated land, where unseated land, then temporarily occupied, was at the request of the owner placed on the seated list, and taxes so paid for it for several years, such land would not therefore remain as seated after the termination 1 Wilson V. Watterson, 4 Pa. St. 214. 2 Arthurs v. Smathers, 38 Pa. St. 40, 44. ' Milliken v. Benedict, 8 Pa. St. 169; and see Commercial Bank t>. Woodside, %i id. 404; Stewart v. Trevor, 56 id. 374; Bechdle o. Lingle, 66 id. 38; Larimer v. M'Call, 4 Watts & S. (Pa.) 133. * Beclidle v. Lingle, 66 Pa. St. 38. 240 UNSEATED AND NON-RESIDENT LANDS. § 254 of such occupancy imtil the owners choose to return it as un- seated ; and if sold before such change as seated, the owner would not be estopped from denying that it was seated.^ Effect of Abandonment., — An accidental or temporary sus- pension of the actual occupancy of land does not authorize a sale of it as unseated.^ The occupant may abandon his claim, and thus discharge his person and personal property from lia- bility for the tax.^ But it must be evinced by acts which leave no doubt of his intention ; in other words, it must be an entire and total abandonment of his claim, and not a mere suspen- sion of his possession, — no animus revertendi must exist in the mind of the occupant.* The' ownfer of the claim, or occu- pant, cannot abandon the possession of a part of an entire tract which was prior to the time of the alleged abandon- ment regarded and listed as seated land r to constitute any portion of it unseated, and authorize its transfer to that list, there must be an abandonment of the entire tract." It is presumed, however, that where there is a claim to an entire parcel, and the occupant is in possession of only a portion, and he abandons that occupancy, the whole claim becomes unseated. The point has not been decided ; but as a partial occupancy, under claim of title to the whole, gives a con- structive possession to all, the reasonable inference is that when he abandons the actual possession, the constructive possession, based upon it, goes along with it. Where the facts are admitted, or clearly proved, the question whether there has been an abandonment is one of law ; where the facts are dis- puted or doubtful, it is a question of fact exclusively within 1 Hathaway v. Elsbree, 54 Pa. St. 498. * See Arthurs v. Smathers, 38 Pa. St. 40, 44. ' The non-payment of taxes by the owner is not an abandonment; the doctrine of abandonment applies only to imperfect titles held by warrant and survey, and not to land held by perfect title. Hoffman v. Bell, 61 Pa. St. 444. * Harbeson p. Jack, 2 Watts (Pa.), 124; McKibben v. Charlton, 14 Pa. St. 128; SheafEer t>. M'Kabe, 2 Watts (Pa.), 421; Fish v. Brown, 5 id. 441; Milliken d. Benedict. 8 Pa. St. 169; Keating- 1>. Williams, 5 Watts (Pa.), 382; Kennedy ». Daily, 6 id. 269. * Patterson v. Blackmore, 9 Watts (Pa.),. 104. VOL. I. — 16 241 § 255 OP THE LISTING AND VALUATION OP THE LAND. the province of a jury, under the direction of the court, as In other cases.^ The cases are uniform as to the consequences of an abandonment. It discharges the owner and his personalty from liability, renders the land unseated, creates a lien upon it for the tax, which can only be enforced by a sale of the land itself.^ Ordinarily, where tlie owner has abandoned the possession or occupation of land so that it has in fact become unseated, it may be transferred to the unseated list without notice to the owners, since they must be already aware of the fact.^ And it has been expressly declared that an abandon- ment must be entire, unlimited, intentional, and so long and so clear as to show there is no ground to suppose an intention to resume the occupation, before a town lot, once seated, is liable to be treated as unseated, unless taxed as such, with notice to the owner.* § 255. Land as Non-resident or Resident. — The same rule of strictness in relation to the listing of lands according to the legal character assigned to them by laV is adopted by the courts in Maine, and it is held that unless they ai-e listed in conformity with the law the sale is void. Thus, in Barker V. Hesseltine,^ where the law required " unimproved lands of non-resident proprietors " to be assessed accordingly, and the land in question was listed as the property of " a non-resident proprietor unknown," but in point of fact belonged to a resi- dent of the town where the property was situate, and the deed under which he claimed title was duly recorded before the as- sessment was made, the court held the listing and sale void.® 1 Wilson V. Watterson, 4 Pa. St. 214; Gibson «. Bobbins, 9 Watts (Pa.), 156; Forster v. M'Divit, 5 Watts & S. (Pa.), 359. 2 Harbeson v. Jack, 2 Watts (Pa.), 124; McKibben v. Charlton, 14 Pa. St. 128; Sheaffer v. M'Kabe, 2 Watts (Pa.), 421; Fish v. Brown, 5 id. 441 ; Gibson «. Bobbins, 9 id. 156; Forster v. M'Divit, 5 Watts & S. (Pa.) 359; Wilson v. Watterson, 4 Pa. St. 221; Kennedy .. Daily, 6 Watts (Pa.), 269, 273. , 8 Arthurs ». Smatbers, 38 Pa. St. 40, 44; Laird v. Hiester, 24 id. 452, explaining the reraarlfs reported in some of the earlier cases. « Negley v. Breading, 32 Pa. St. 325. ^ 27 Me. 354. " So in Michigan a provision of law which requires that resident and non-resident real estate shall be separately assessed must be observed, or 242 IN WHOSE name; etc. § 266 Other cases in the same court reiterate the principle.^ The same doctrine is conceded by the Supreme Court of Illinois, in the construction of the statute of 1829, which subjected the land of non-residents only to assessment and sale; hold- ing that where the land listed belonged to residents of the State, all of the proceedings are void.^ So in Maine, where land belonging to a resident was assessed as non-resident land, the assessment was held void.' A similar decision was made in Massachusetts.* § 256. In vrhose Name the Land is to be assessed. — The statutes of the different States vary greatly on this point, which fact, together with the various tendencies of the judges toward leniency or strictness in dealing with tax titles, and the effect of curative statutes, makes the condition of this subject one of inextricable confusion. The only way for the lawyer to do is to read his own statute book in connection with such cases as his own or other courts may have decided upon that or similar laws. The usual provision is that the land is to be listed to the owner or occupant. We will consider this rule,* and its effect on a tenant for life,^ on husband and wife,"" and on a trustee.^ Then we shall speak of assessments to the estate of one deceased,'^ of assessments after sale,* assessnients toi unknown owners,^ and those in which the name is left blank,^" and finally notice tlie decisions which hold the sale good in spite of error as to the name.^^ We give in a note, in the order of the States, a reference list to the decisions upon the subject of this section.^^ the assessment will be invalid, and a sale for unpaid taxes not thus as- sessed will convey no title. Rayner v. Lee, 20 Mich. 384. 1 Wescott V. McDonald, 22 Me. 402; Moulton v. Blaisdell, 24 id. 283; Wallingford ». Fiske, Id. 386; Lunt v. Wormell, 19 id. 100. ^ Messinger v. Germain, 6 111. 631. » Lunt V. Wormell, 19 Me. 100. * Bisiug V. Granger, 1 Mass. 48; see also Young v. Martin, 2 .Yeates (Pa.), 312; Burd v. Ramsay, 9 Serg. & R. (Pa.) 109. 6 §§ 257-272. 6 § 272. i § 273. ' § 274. » § 275. w § 276. " § 277. " Ala. § 275; Ark. § 277; Cal. §§ 257, 258, 263, 275, 277; Conn. §§ 264, 272; Fla. §§ 268, 272, 273; lU. § 261; Ind. §§258,277; Iowa, §§ 275-277; 243 § 258 OF THE LISTING AND VALUATION OP THE LAND. § 257. Assessment to th^ Owner or Oeaupant. — In many q! the States the statutes require the laud to be listed in the name of the owner ^ or occupant of the land ; and in such case, if not listed in the name of the " owner or occupant," the assessment is void.^ In other States the law directs the name of the owner to be inserted only when known. The spirit of this requirement is, to give to the owner additicaial means in the examination of the tax list, to ascertain whether his land has been assessed ; the law presuming that every sane person will remember his name if he is unable to distinguish his land by the description contained in the list. § 258. Under a statute requiring the listing to be in the name of the owner, it was held in New York that where the land was described in the list as belonging to " the widow and heirs of A. B., deceased," this was a sufficient compliance. So the use of the firm name, where the land was owned by partners. But in the same case the court said that where the land belonged to a single individual, it was proper and necessary that the name of that individual should be inserted in: the list ; * and accordingly the assessment of land to a per- son who is neither owner nor occupant is void. In Cruger Ky. § 265; La. § 262; Md. §§ 273, 277; Mass. §§ 260, 265, 270; Me. §§ 258, 261, 272; Mich. § 273; Mo. §§ 266, 277; Neb. § 277; N. II. §§ 261, 263, 267, 275; N. J. §§ 262, 271, 273, 277; N. Y. §§ 258, 272, 277; N. C. § 273; Pa. § 277; Tex. § 262; Va. § 259; Wis. §§ 257, 269, 270, 272, 276. ^ An answer to a sufficient complaint in a suit for taxes brought against both the property assessed and the alleged owner, which denies only that the personal defendant was at the time of the assessment the owner of the property, or any part thereof, without further denying all claim, title, or interest therein, is not such a denial as by § 42 of tlie Reve- nue Act is permitted to be made, and raises no issue as to the liability of either defendant. People o. Pearis, 37 Cal. 259. In a suit to collect a tax, if it be shown that the land on which the tax was assessed did not belong to the defendant, but to other persons ^u the actual occupation thereof, holding the title under recoi'ded deeds, this fact establishes a legal fraud which vitiates the entire assessment against the defendant. People V. Castro, 39 Cal. 65; see also Milwaukee Iron Co. i'. Hubbard, 29 Wis. 51. I « Mann v. Utica, 44 How. Pr. (N. Y.), 834; Milwaukee Iron Co. v, Hubbard, 29, Wis. 51, 56. « Wheeler o. Anthony, 10 Wend. (N. Y.) 346. 244 IN WHOSE NAME, ETC. § 259 V. Dougherty,^ an assessment for rents received in leases in fee under Laws of 1846, p. 466 (required to be assessed to the person or persons entitled to receive the same), was made under a description as follows : " The K. patent : J. K. and others, legal heirs of J. K., late of the city of New York, deceased, or their heirs or assigns, for rents reserved in the town of K. in the county of D.," etc. ; it was held that the assess- ment being to a person deceased and others not named, or their heirs or assigns, and each rent not being specified, the same was void.* But where tax was assessed to Henry D, V. while the real name was William H. V., it being proved that the person intended was known as Henry in the town, the as- sessment was held valid.* So the omission of the word " min- ing " from the corporate name of the " Sierra Buttes Quartz Mining Company " was held not to vitiate an assessment.* In Noble v. Indianapolis* an assessment "to the heirs of N." was held good, although they had made partition of the estate, and some had been sold to third parties, but the deeds had not been recorded. In Coombs v. Warren,® which was a writ of entry, the demandant claimed under a mortgage, and the tenant under a tax title. The statute required the land to be listed in the name of the " owner or possessor." The land in question was listed in the name of the demandant, a mortgagee of the premises, who never was in possession. The court held that the mortgagor was the owner, and that as the property, was not listed in his name the proceedings were void. § 259. The Virginia statute required the commissioners of taxes to " take an account, in writing, of the quantity of land belonging to all persons within their counties, and also the name of the proprietor or proprietors thereof, and ascertain 1 1 Lans. (N. Y.) 464. = Affirmed in 43 N. Y. 107; Whitney v. Thomas, 23 id. 281; Newell V. Wheeler, 48 id. 486; Chapman v. Brooklyn, 40 id. 372 ; Crooke u. Andrews, 40 id. 547. » Van Voorhis v. Budd, 39 Barb. (N. Y.) 479. * People V. Sierra B. Q. M. Co., 39 Cal. 511. > 16 lud. 506; and see RonkendorS v. TayIdr*B Lessee, 4 fet. (0> S.) 349. • 34 Me. 89. 245 § 261 OP THE LISTING AND VALUATION OP THE LAND. the value of the same." In a case where the land was listed in the name of the widow of an intestate, instead of the heir, the list was held void.^ § 260. So where the statute of Massachusetts directed an assessment in the name of the " occupant or tenant," and it was listed in the name of the landlord, the list was held void.2 It was also held by the Court of Appeals in Kentucky, in construing the act of Congress levying a direct tax, that an assessment in the name of a person in possession under a parol contract, instead of the riglitful proprietor, was void.' In Alvord v. Collin,* under the peculiar phraseology of the statute it was held that a listing of unimproved lands be- longing to a non-resident proprietor, in which he was wrongly designated, was valid; whereas in the listing of improved lands belonging to residents the defect would have been fatal. The decision was placed upon the ground that in the former instance the tax was a charge upon the land itself, while in the latter it was simply a charge upon the person and goods of the delinquent, § 261. In those cases where the statute requires the asses- sor to list the lands in the names of the owners respectively, if known, the principle to be deduced from the authorities is, that it is the duty of the assessors to ascertain the true name,* that if they omit the name in the list, or state that the owner is unknown, the presumption is that the oflBcer did his duty^ and that the owner was in point of fact unknown ; but where it is shown that the name of the original owner was known to the officer, the list will be held invalid, because the statutes expressly declare that the name of the owner shall be inserted 1 Yancey v. Hopkins, 1 Munf. (Va.) 419. " Martin v. Mansfield, 3 Mass. 419. ? Johnson v. Melntiie, 1 Bibb (Ky.), 295. * 20 Pick. 418. ' But calling his name Packard instead of Packer has been held not material. Pierce v. Richardson, 37 N. H. 306. But the exclusion of the assessor's return, offered for the purpose of showing that the land was not listed in the name of the owner, but of another, will not be held erroneous unless accompanied or followed by a proposal to introduce proof showing that the latter was not in fact the owner. Sully v. Kuehl, 30 Iowa, 275. 246 IN WHOSE NAME, ETC. § 263 when it can be done.^ So if in the list of non-resident taxes land is taxed in the name of an individual, it is to be pre- sumed, till the contrary appears, that the name thus inserted is that of the owner or original proprietor.^ § 262. In Louisiana it is very strongly laid down that an assessment is in lieu of a judgment, and that "if there is no assessment or judgment against the true owner there can be no valid sale." ^ Where the statute required the name of the owner to be inserted, and the list stated that he was "un- known," it was held defective and void.* Tlie listing must be in the name of the true owner in order to base a valid sale.^ A sale under an assessment in the name of a deceased person to whom the property had not actually belonged, and without any notice to any person in interest, is utterly without effect,* and a tax sale of the separate property of a wife assessed in the name of her husband is null and void.'^ Where the proceedings are against B. as one living, and the deed purports to convey the interest of a living person, whereas B. has been dead for years, and neither the successor nor heirs are represented, the sale is void, and can acquire no force by-subsequent confirmatory deed from the auditor .^ § 263. In California, the assessment must be in the name of the owner if known, and if there is a rational doubt, to " owners unknown." ^ The knowledge of one of the assessors ^ Cardigan Proprietors v. Page, 6 N. H. 182 ; Smith v. Messer, 17 id. 420 ; Neson v. Pierce, 6 id. 194 ; Ainsworth v. Dean, 21 id. 400 ; Brown v. Veazie, 25 Me. 359; Merritt v. Thompson, 13 111. 716; Shimmin o. Inman, 26 Me. 228. 2 Jaquith v. Putney, 48 N. H. 138. » Thibodaux v. Keller, 29 La. Ann. 509 (1877); Workingmen's Bank V. Lannes, 30 id. 871 (1878) ; LeBlano v. Blodgett, 34 id. 107 (1882) ; Desormeaux ». Moylan, 26 id. 730. * Carraichael v. Aikin's Heirs, 13 La. 205. See Yenda v. Wheeler, 9 Tex. 408; State v. Union Township, 36 N. J. L. 309. * Maspereau v. New Orleans, 38 La. Ann. 400 (1886). " Fix V. Dierker's Succession, 30 La.. Ann. Pt. 1, 175 (1878). ' Guidry v. Broussard, 32 La. Ann. 924 (1880). » Jackson v. Wren, 36 La. Ann. 315 (1884). » Himmelmann v. Steiner, 38 Cal. 175 (1869) ; affirmed in Stockton v. Dunham, 59. Cal. 608. " Formerly owned by B;" insufficient. Kelsey v. Abbott, 13 Cal. 609. 247 § 265 OP THE LISTING AND VALUATION OP THE LAND. is sufficient ; and an assessment to another than the true owner, where one of the assessors knows who claims the land, is bad.^ In New Hampshire, non-resident land, though in the actual occupancy of the owner, cannot be taxed directly to such owner imless he consents.^ An assessment to " H. and to all claimants known and unknown " is Toid, and may be given in evidence to defeat a deed founded thereon, though the deed is regular on its face.' Property owned by S. B. Whipple was assessed against S. M. Whipple. The error was held to avoid the list, because there was no designation of the property owner, S. B. Whipple being neither the true name of the owner nor the name by which he was known and called.* § 264. A New York corporation, having its principal oflSce and business in that State, owned and occupied real estate in B., in Connecticut, which became taxable October 1. Septem- ber 11, the corporation having been adjudged bankrupt, the real estate in B. was assigned to an assignee, who took possession September 27 ; but the assignment was not recorded in the land records in B. till December 19. In November, no tax list having been handed in, the assessors, not knowing of the as- signment, filled out a list in the name of the corporation, put- ting said real estate therein, and adding ten per cent to the actual valuation, such additional valuation being authorized in the case of resident taxpayers who fail to file their lists. It was held that the list was lawfully made in the name of the corporation, the assessor having the right to rely upon the records of the town for information in regard to the owner- ship of the property ; but that the corporation could not be regarded as a resident taxpayer, and that therefore the ten per cent valuation was unlawfully added. ^ § 265. Under Massachusetts Gen. Stats, ch. 11, § 8, an as- sessment to a former owner, who at the time of assessment » Thompson o. Gerrish, 57 N. H. 85 (1876). 2 Bowles V. Clough, 55 N. H. 389 (1875); a statutory case. s Daly V. Ah Goon, 64 CaL 512 (1881). * People V. Whipple, 47 Cal. 591 (1874). ' Jones V. Bridgeport, 36 Conn. 283. 248 IN WHOSE NAME, ETC. § 268 had no title to or possession of the land, will not support a tax title. Where no person is in apparent occupation of land, it is the duty of the assessors to make inquiry as to the ownership. If due diligence fails to discover the owner, the land may be taxed as the property of an unknown owner ; but the assessors could not tax to a person by name who was neither owner nor occupant.^ In Kentucky, the law is similar. A sale in the name of one as owner who had conveyed before assessment, passes no title.^ An assessment in the name of one neither owner nor an agent of the owner will not base a valid sale.^ § 266. In Missouri, notwithstanding the prohibitions of the act touching tax deeds (Adj. Sess. Acts, 1863-64, p. 89, §§ 21, 22 ; Gen. Stats. 1865, p. 127, §§ 111, 112), evidence is admissible for the purpose of showing that the land had not been assessed nor judgment rendered in the name of the real owner, or of any former owner, or of any tenant or occupant of the land, and the defect is a vital one. A deed conveying the title under proceedings against a person who had no title or interest whatever in the land, and was in no manner the representative of the owner, if any title could pass, would have the effect to take the property of one man without due process of law and give it to another.* § 267. In New Hampshire, " unimproved lands of non- residents shall be taxed in the name of the owner if known, otherwise in the name of the original proprietor if known, otlierwise without any name," ° and an assessment in the name of one who is neither owner nor original proprietor is void.* § 268. An assessment in the name of one neither owner nor occupant is void.^ 1 Desmond v. Babbitt, 117 Mass. 234 (1875). 2 Bell V. Fiy, 5 Dana, 341 (1837). » Wheeler v. Biamel, 8 S. W. 199 (Ky.). * Abbott V, Lindenbower, 42 Mo. 162; s. c. 46 id. 291; Hume v. Wainscott, Id. 145. « Rev. St. ch. 40, § 10. « Thompson v. Ela, 60 N. H. 564 (1881). » L'Engle v. Florida Central K. Co., 21 Fla. 353; L'Engle v. Wilson, Id. 461. 249 § 272 OF THE LISTING AND VALUATION OP THE LAND. § 269. Where a part of a city lot belongs to one and a part to another, each part must be assessed to the proper owner if known.^ The law required the assessor in the as- sessment roll to set opposite each tract the name of the owner, or the word " unknown " if the owner was not known ; but the assessor, though informed what part of a certain tract belonged to R. and what to S., assessed the whole to S. It seems that a sale based on such asSfessment was void.^ § 270. Under the Wisconsin statutes defining the property rights of married women, the husband, by merely residing with his wife on her separate property, does not become the occupant thereof, so that it can be assessed to him for taxa- tion.^ The possession which under 1 R. S. 389, §§ 1, 2, 3, would justify, their assessment to the occupant where the owner resided in another town, must be the possession of persons themselves liable to taxation.* If the statute directs assessment of lands to those by whom it is possessed, the tenant, not the owner, must be assessed.* § 271. In New Jersey, a mistake in the name of the owner may be corrected where he has notice ; ® but there must have been an effort to comply with the law. The law requires as- sessment in the name of the owner ; and although a mistake in the name, so that the real owner is not set out, does not, under the statute, invalidate the assessment, yet the law im- peratively requires a hona fide effort to assess in the name of the owner ; and if no name is given, or a fictitious name, or in any way it appears that there was no attempt to comply with the law, the tax will be set aside.^ § 272. Trustee. — In New York, lands held by one as trus- tee must be assessed to him with the addition of his repre- > Knox I). Huidekoper, 21 Wis. 527. 2 State, ex rel. Roe, v. Williston, 20 Wis. 228. » Hamilton v. Fond du Lao, 25 Wis. 496. * Fellows V. Denniston, 23 N. Y. 420. The meaning of the term " occupant " is discussed in Tweed v. Metcalf, 4 Mich. 579, 586. 6 Martin v. Mansfield, 3 Mass. 428 (1807). 6 State V. Union, 36 N. J. L. 310 (1873). ' State V. Vandeibilt, 33 N. J. L. 39 (1868). 260 IN WHOSE NAME, ETC. § 273 sentative character. The statute is specific to this effect.^ A tenant for life is properly assessed as owner during the con- tinuance of his life.^ When husband and wife reside on land which is the wife's separate property, the assessment may be on the husband as " occupant." ^ But if the husband does not occupy the land, it must be assessed to the wife.* In Enos v. Bemis^ the court held that where the wife's property was taxed to the husband, and personal property of the wife was taken and sold for the tax, substantial justice had been done, and this mere nominal variance would not be allowed to defeat the tax or punish the officer. Inciden- tally the court remarked that the husband may well be sup- posed to be the occupant of the land and owner of the personal property. § 273. Listing to the Estate of One deceased. — An assess- ment to the " estate of Parkhurst " is a nullity.^ The effect of listing the property to the " heirs at law " ' or " devisees " of a former deceased owner, by which perhaps the present owners could be ascertained and identified, might possibly be good ; ^ but listing to the estate of one who died twenty-five years before the sale does not satisfy the statute, which aims throughout at personal proceedings against the owner and his personalty before recourse to the land.* But in New Jersey an assessment to " estate of J. B. Coles " was held sufficient, there being no provision of law as to the form of assessment, and it having been customary, where land was untenanted and the precise owners unknown, to assess to the heirs of the last known owner ; ^ and in Michigan, while the estate is undivided the statute permits assessment to the heirs or devisees without naming them, and an assessment to the estate is held legally 1 Trowbridge v. Horan, 78 N. Y. 442 (1879). * Garland ». Garland, 73 Me. 98 (1881). » Paul V. Flies, 18 Fla. 586 (1882) ; conlra, 25 Wis. 496. * Smith V. Read, 51 Conn. 13 (1883). » 61 Wis. 659 (1884). * L'Engle v. Wilson, 21 Fla. 461. ' Held bad in Roberson v. WooUard, 6 Ired. (N.C.) 907. » Morrison v. McLauchlin, 88 N. C. 253, et seq. (1883). » State V. Piatt, 24 N. J. L. 115 (1853). 251 § 275 OF THE LISTING AND VALUATION OP THE LAND. equivalent, seemingly witb great reason ; ^ and in Maryland it was held that when the assessment was to the estate, and the hill did not allege a partition of the estate, the point was too refined and technical to justify a court of equity in declaring that the city should lose the tax so assessed, and the com- plainants enjoy the street improvements without paying any- thing therefor, by reason of the imperfect designation of the person or property taxed.* § 274. Assessments after Sale. — During the time of re- demption after a tax sale new assessments are properly made in the same way as before the sale. The purchaser at said sale has no estate in the land, and the new assessments should be to the occupant or owner.* § 275. Taxivy to Unknown Owners. — In case of reasona- ble doubt the land may be taxed to an unknown owner. The assessor is not obliged to determine questions of disputed ownership.* A statute provided that in making street as- sessments the superintendent should put down the name of the owner if known to him, and if not, the word " unknown." This word was written opposite certain lots held by the plaintiff, who claimed that the superintendent did in fact know who was the owner. The court held that the effect of the word " un- known," thus indorsed by the superintendent on the assess- ment, was equal to a certificate by the officer that he did not know the owner, and was conclusive of that fact in any collat- eral action. In an action to recover the assessment, no inquiry as to the knowledge of the officer can be had. If such certifi- cate be false in fact, and damage has ensued, the party injured must seek his redress directly against the officer, alleging the untruthfulness of the certificate.^ The fact that land is as- sessed as belonging to an unknown owner will not invalidate a sale, though the records of the county disclose the name of the owner. The presumption is that the officers did their duty, 1 DJckison v. Reynolds, 48 Mich. 161 (1882). 2 Moale V. Baltimore, 61 Md. 238 (1S83). » Spratt V. Price, 18 Fla. 290 (1881), * French v. Spalding, 61 N. H. 395. « Chambei-s v. Satterlee, 40 Cal. 518 (1871). 252 ETC. § 277 made diligent inquiry and failed, and that the name of the owner was in fact unknown to them.^ But if it is clear that ordinary diligence would have led the assessor to the truth, as where a body of four thousand aoi'es had been owned by tlie same person for nearly forty years, and it had been as- sessed and the taxes paid in his name, and tlie testimony . showed that the assessor could, without much trouble, have ascertained from residents of the parish or from tax polls of former years the name of tlie owner, an assessment to an un- known owner is bad. The owner, in such a case, is not un- known in the sense of the law.^ Lands cannot be assessed to an unknown owner, when the officer might by proper inquiry have ascertained the ownership, as where the owner is in pos- session, or the assessor has a map on which the owner's name is marked.* An assessment to " unknown owners " is not in- validated by the fact that the purchaser at the sale knew the owner.* § 276. Name Hank. — Where the column headed " owners' names" was left blank, the assessment was deemed to be made to unknown owners.^ In Oberich v. Gilman,® while it was con- ceded that the tax deeds under which the respondent claimed were fatally defective by reason of the omission from the assessment roll of the name of the owner, or of the word " unknown " set opposite the lots in controversy, still it was stated to be perfectly well settled that equity would not relieve against the tax in such a case. § 277. Assessment in a Wrong Name does not always, avoid tlie Proceedings. — In Arkansas, the law provides that no sale for taxes shall be invalid by reason of its having been charged on the tax book in any other name than that of the rightful owner ; and it is held that the name of the owner is compara- tively unimportant, the chief matters being a description of the land sufficient to identify it, and non-payment of the tax. 1 Corning Town Co. ». Davis, 44 Iowa, 622 (1876). = Rapp V. Lowiy, 30 La. Ann. 1274 (1878). » Oliver ». Robinson, 58 Ala. 50-52 (1877). ♦ Lassitter v. Lee, 68 Ala. 287 (1880). « Burdick v. Connell, 69 Jowa, 458 (1888). « 31 Wis. 495, 500. 253 § 277 OP THE LISTING AND VALUATION OP THE LAND. The land is liable for the tax, no mattei* who is the owner.^ It is no objection that the lands were assessed to non-residenta who had no title thereto, and not to the owners who reside in the county and had Sufficient personal property to pay the taxes ; nor, in such case, that the collector sold the land with- out first demanding the taxes or resorting to the personalty.* In California, no mistake in the name of the owner will avoid an assessment of real property.^ In Indiana, irregularity in assessment, as where the land is listed in the name of another than the owner, though the latter is known to the officer, does not relieve the land.* Where A. made a parol gift of land to B., which he never confirmed by deed, taxes assessed to B. during the time of his possession under the gift raise a lia- bility against A., the real owner, under a statute provision that failure to list to the owner shall not invalidate the assessment.* An assessment in some other name than that of the owner does not invalidate sale.® In Missouri, in absence of knowl- edge to contrary, it is to be presumed that the record owner is the true owner, and an assessment and sale on sucli basis is valid if neither the officers nor the purchaser knew of the unrecorded deed.'' In Iowa, it was held that where the assess- ment was duly made to the owner, the omission of his name in transcribing the tax into the tax list did not invalidate the assessment, and a subsequent sale was held good.* This seems clearly wrong, as sustaining a sale tainted with an ir- regularity, in which the taxpayer is deeply interested, since the omission of his name may have caused him to overlook his 1 Digest, 889. Merrick v. Hiitt, 15 Ark. 340 (185i) ; Kinsworthy ». Mitchell and Wife, 21 Ark. 145 (1860). * Kinswovthy v. Mitchell, 21 Ark. 145; Garibaldi v. Jenkins, 27 id. 451, 456. » Lake County v. Sierra B. Q. M. Co., 66 Cal. 19 (1884) ; Code, § 3628. * Maple ti. Vestal, 16 N. E. 620 (Ind.) ; Peckham v. Millikan, 09 lud. 361 (1884); Cooper «. Jackson, 71 id. 244; Mesker v. Koch, 70 id. 68. * MuUikin v. Reeves, Treasurer, 71 Ind. 284 (1880). 6 Schrodt V. Deputy, 88 Ind. 92 (1882); 1 R. S. 1876, p. 125, § 230; Cooper o. Jackson, 71 Ind. 244. ' Vance v. Corrigan, 78 Mo. 97 (1883). 6 Parker r. Cochran, 64 Iowa, 759 (1884). 254 IN WHOSE NAME, ETC. § 278 liability. In Nebraska, taxes being a lien on the land, a fail- ure to assess in the name of the owner, as required by law, will not avoid the tax.^ In New Jersey, making the assess- ment in the name of one only of two tenants in common is an irregularity that is cured by the act of March 17, 1854.2 j^ New York, the only effect of failure to assess land to the true owner is to prevent collection of the tax from the owner per- sonally, or from his personal propei'ty. If the land is suffi- ciently described, the tax may be assessed directly against it.^ In Pennsylvania, a sale of unseated lands for taxes will pass the title, though assessed in a wrong name or by a wrong number, if otherwise designated so as to be capable of identi- fication, and so as not positively to mislead the owner.* § 278. An Assessment of a Tvhole Tract to one who O'wns only a Part of it is void. — Thus in Barker v. Blake ^ it ap- peared that one Treat, in the year 1831, was the owner of lot 10, Sumner Street, Bangor ; that in April, 1832, he conveyed four feet of the south side of the lot to one Baldwin, and a division fence was thereupon erected between them, and this fence was kept up afterwards ; that in September, 1832, Treat conveyed the residue of the land to one Taylor; that in 1836 the title" of Taylor, by mesne conveyance, became vested in Barker ; the whole lot was assessed to Barker, and the assess- ment was held void. By the court: "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 as- sessment, and the collector's sale and deed in pursuance of 1 Lynam v. Anderson, 9 Neb. 367 (1879). « Fleischauer v. West Hoboken, 40 N. J. L. Ill (1878). » Haight V. New York City, 99 N. Y. 280 (1885). * See Miller v. Hale, 26 Pa. St. 432; Russell v. Werntz, 24 id. 337; Philadelphia v. Miller, 49 id. 440; Franklin Coal Co. i. Bertels, 109 id. 553, 554; Strauoh v. Shoemaker, 1 W. & S. 166; so in Maryland, O'Neal V. Virginia & Maryland Bridge Co., 18 Md. 1; in California, O'Grady v. Barnhisel, 23 Cal. 287; Brunn v. Murphy, 29 id. 326. See Bidlemau v. Brooks, 28 id. 72. 6 36 Me. 433; State v. Williston, 20 Wis. 228; Crane v. Janesville, Id. 305; Orton v. Noonan, 25 id. 672, 677; Siegel v. Outagamie County Sup., 26 id. 70. 255 § 278 OP THE LISTING AND VALUATION OP THE LAND. tLem, were utterly void." So under a statute (St. of 1861, ch. 167) requiring assessors to describe, by name or otherwise, " each and every lot of land owned by eacli person," and to give the number of acres or feet in each lot of land, and the value of the same, where two parcels, Nos. 1 and 2 owned by Packard, and Nos. 64 and 66 owned by the heirs of Jennings, were included in one joint valuation and assessment, and by an informal computation Packard's share of the joint tax was ascertained and paid by him, and the collector directed to enforce the unpaid balance of the joint tax against the land of Jennings, it was held that no lien attached to either parcel for the whole or any part of the joint tax ; and as no title could be derived under a sale of land for taxes other than through tire lien given by statute, the tax title must fail.' An assessment against A., under one aggregate value, of lots owned by him, and of others neither owned nor occupied hy him, is void ; and under the Wisconsin statutes, defining the rights of married women, this rule applies where such other lots are owned by A.'s wife ; and a tax assessed in violation of this rule is not rendered valid by a subsequent statute which merely declares that certain assessments (of which this is one) shall be valid " notwithstanding any omission, defect, or irregularity " in the proceedings, this being something more than an omission, defect, or irregidarity.^ In Roby v. Chicago ' it was held that the purchaser at a tax sale of a fraction of a lot, whether great or small, is entitled on application to the proper officers to have such fraction listed and assessed separately, in order that he may pay the taxes thereon.* The San Pablo Rancho was assessed as an entirety to a large number of owners ; some of the owners individually paid taxes upon 13,598 acres, leaving 4,338 acres owned by numerous persons, upon which the taxes were unpaid. 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 necessary of the un- divided interest of 4,338 acres, without designating to what ' Jennings v. Collins, 99 Mass. 29. " Hamilton v. Fond du Lac, 25 Wis. 490. » 48 111. 130. « See also People v. Shimmins, 42 Gal. 121. 266 IN WHAT PAECBXS LAND IS TO BE ASSESSED. § 279 - particular persons this undivided interest was assessed. This was held to be erroneous. Where land is so assessed as an entirety to numerous persons, without designating the interest of any one of them, it can be regarded in no other light than as an assessment to them as copartners, joint tenants, or tenants in common, and not as owners or claimants in severalty ; and if such an assessment be admitted to be unexceptionable and legal, it would be the duty of the court, in giving judgment, to ascertain by its judgment what particular undivided inter- ests in the land were delinquent, and to exonerate from the lien of the delinquent taxes the interests of those who had already paid their proportion of the general burden.^ Where a quarter section of land is assessed entire, the owner of forty acres, or other describable portion, may pay or tender the taxes on such part, and a subsequent sale will be set aside as to his land.* § 279. In what Parcels Land is to be assessed. — Land must be assessed as it lies. Distinct parcels must not be assessed together, nor a tract divided which is really all one. Use and occupation for the same purpose of contiguous tracts belong- ing to the same owner make them one for tax purposes. We shall treat this subject more fully under the head of Sale.^ Town lots, though in the same block and contiguous and belonging to the same person, must be separately assessed, unless where the owner consents (as where he himself lists them as one tract), or where the Joint use and occupation of two or more originally distinct tracts warrants their assessment in gross.* In Russell v. Werntz ^ it was held that the assessment of two contiguous tracts owned by the same person as one trdct was an unimportant irregularity under the curative provisions of the act of 1815. The unseated land acts con- template taxation by single tracts following the title of the owner, and neither the assessors nor a stranger can by divi- 1 People V. Shimmins, 42 Cal. 121- " Lawrence v. Miller, 86 111. 502 (1877) ; see Pennell v. Monroe Adm. 30 Ark. 664 (1875). » Sale of Contiguous Tracts, § 527. * State V. Baker, 49 Tex. 763, 764 (1878). 6 24 Pa. St. 337. VOL. 1. — 17 257 § 280 OP THE LISTING AND VALUATION OP THE LAND. sion of an entire tract without the knowledge of the owner affect his title ; and where an entire tract is divided and re- turned without the consent of the owner, and both parcels are taxed, it is a double assessment. An intruder had one hun- dred and fifty acres marked off without the consent of the owner, and it was assessed as such and sold for taxes : it was held that the purchaser acquired no title.^ When a township which has not been subdivided into lots is nontresident land, and is assessed as such, it is the duty of the assessors to assess it as one lot ; they have no right to divide into lots and assess them at different valuations.^ If the assessor, in assessing a city lot owned and occupied by the owner as a single lot, arbitrarily divides the same, and assesses one part to the owner and another part to unknown owners, the assessment to the unknown owners is illegal ; and a tax deed upon a sale of the land so assessed is void.^ An improper assessment of land in separate parcels that should be in one does not invalidate the sale under the Missouri statutes.* A joint assessment on real and personal property avoids the sale based thereon.^ Under a statute requiring the list to desig- nate " the number of lots or parcels assessed to each person," it was held that it was not necessary that each parcel should be separately valued on the list, and that it was not an error to assess all the lots in one block, when they belong to the same owner, at one sum in gross, even though the lots were of different value.* § 280. In Shimmin v. Inmau ' the statute required the as- sessors to set forth in their lists "the nimiber of acres of unimproved land which they may have taxed on each non- resident proprietor of lands, and the value at which they have estimated the same." The lots in controversy were thus listed : ^— 1 Reading v. Finney, 73 Pa. St. 467, and cases there cited. 2 Thompson w. Burhaus, 61 N. Y. 52 (1874). 8 Bidleman v. Brooks, 28 Cal. 72. « Davis B. McGee, 28 Fed. Rep. 867. 6 Stark «. Shupp, 112 Pa. St. 395. « State ». Piatt, Collector, 24 N. J. L. 119 (1853). ' 26 Me. 223. 258 IN WHAT PARCELS LAND IS TO BE ASSESSED. §281 Name of Owner. No. of lots. Range or DiTisioQ. No. of Acres. Value. State and Countj7 lax. Jown Tax. Total. Wm. Shimmin, or Unknown. 16 17 18 On Penobscot River. 240 $240 10.61 $3.22 $3.83 The court held the list illegal, saying : "A fair construction of the statute requires that each lot should be valued and assessed separately. The lots may be owned by different persons ; and if a joint valuation and assessment 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. 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." § 281. And in Willey v. Scoville's Lessee^ the land was thus listed, taxed, advertised, and sold : — CLEVELAND TEN-ACRE LOTS. Owner's Name. Range. Town. Lots. Acres and Rate. Tax. Unknown heirs. 12 7 (32 34 35) J 38 39 40 > (41 42 43) Second rate. 90 S 0. u. 4 83 6 Grimke, J. : " The proceedings in this case show a defect which is very common in tax sales. Lot 32 (the one in con- troversy) was listed and advertised for sale, with eight others of the same ten-acre lots, by the following description : The first and second columns contain the range and township, the third enumerates the nine lots by their number,, and the fifth contains an apportionment in gross of the tax for which they were delinquent. The law requires that the auditor should so list and advertise the land as to furnish the owner with a description of the land subject to taxation, and that the sale shall be advertised and conducted in conformity with that rule. In this instance there was an assessment in gross of the whole amount of the tax chargeable upon the nine lots, » 9 Ohio, 43. 259 § 283 OF THE LISTING AND VALUATION OP THE LAND. 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 is so treated in the apportion- ment of the tax. Now, it is evident that the course pursued ' should be consistent with itself. If the lots might be treated as separate and distinct parcels of land, then the tax charged upon them should have corresponded with the fact in the description ; or if they should be treated as one entire tract, then, although the assessment of the tax in the advertisement as one aggregate sum would have been correct, the description of the land would itself be erroneous, and so also would the sale under it. In either case the title is defective, and the court were right in ruling out the evidence." § 282. Under the California statute of 1857, city lots must be assessed separately ; and if assessed in gross and sold for the aggregate tax the sale is void.^ But in Terrill v. Groves the sale was made upon the assessment roll alone ; where it is made upon a judgment, the fact that the assessment is made in solido and not separately will not avoid the judgment, order of sale, and deed.^ An assessment of personal property and improvements in real estate, assessed to a person other than the owner of the real estate (under the Revenue Act of 1861), which does not separately value and set down iu separate columns the value of the different parcels and de- scriptions of pi'operty, is not in compliance with the statute, and therefore invalid.' § 283. The statute of Illinois provides that each tract of land shall be listed, valued, and assessed separately. This does not mean that an entire tract must be subdivided into the smallest legal subdivisions of which it is susceptible, but simply that two or more tracts disconnected from each other, so as not to be embraced within the same general description, shall not be assessed together. Thus " the S. 1-2 Sec. 5, T. 3 N., R. 4 W.," * and " S. W. and S. E. Sec. 9, T. 8 N., 1 Terrill v. Groves, 18 Cal. 149. » Anderson «. Rider, 46 Cal. 134; Mayo e. Foley, 40 id. 281. » People V. Sierra B. Q. M. Co., 39 Cal. 511. * Atkins V. Hinman, 7 111. 437, 443. , 260 DIFFERENT INTERESTS IN THE SAME TRACT. § 285 R. 8 E.," ^ were held respectively to be a compliance with the statute. ^ 284. Assessment of different Interests in the same Tract. — Land held in indivision must be assessed according to the title. Only the undivided interest of a joint owner can be legally assessed as his property, and not any definite part or stipulated number of acres.^ An assessment is the founda- tion of tax proceedings, and is like a judgment. Surely a sheriff could not seize and sell a certain number of acres, or a definite part of land held by A., the judgment debtor, in indivision with B., and make delivery of the same to the pur- chaser.3 Under a statute requiring apportionment between those having separate estates in the land, a street assessment upon land of A. B. cannot be assessed wholly to the husband of A. B., who has only a life estate in her land, but must be apportioned to each in proportion to the right of property.* The interests of tenants in common may be assessed sepa- rately, and on default of one his undivided interest may be sold.^ In California, the lands of tenants in common may be jointly assessed under the act of 1860.^ § 285. Valuation. — To make a complete and perfect list, the land must be valued in the manner and upon the prin- ciples prescribed by law. An assessment is void if there be no valuation.'' It has already been shown that where the law required the lister to join with him two householders in mak- ing the valuation, which he neglected to do, the proceeding was held void.* All fixed and permanent improvements upon the land, which constitute in judgment of law a part of the freehold, must be valued with the land, or the valuation will be void.* But a gross valuation of the improvements, without ' Spellman t>. Curtenius, 12 111. 409. « Hayes v. Viator, 33 La. Ann. 1165 (1881). » 3 Rep. 257 ; 23 La. Ann. 681. * Williams v. Brace, 5 Conn. 195 (1824). ' Payne v. Danley, 18 Ark. 441 (1857). " People V. MoEwen, 23 Cal. 54. ' Garwood v. Hastings, 38 Cal. 216 ; see also People v. San Francisco Savings Union, 31 id. 132. ' Kinney t>. Doe d. Laman, 8 Blackf . (Ind.) 350. « Fitch V. Pinckard, 5 HI. 69; see Parker v. Winsor, 5 Kan. 362, 375. 261 § 285 OP THE LISTING AND VALUATION OP THE LAND. specific description, is sufficient under the California statute.^ The standard by which the assessors are to value land is usually the cash value.^ In some States, however, the law classifies lands, and prescribes a value per acre to be put upon each kind ; and such laws are held valid even where the con- stitution requires equality, though the soundness of such de- cisions is very doubtful.^ The revenue laws frequently require the taxpayer to give the assessors a list of his property. But the value put on property by the owner in this return is not conclusive on the assessors. The owner's return does not constitute an assessment till approved by the assessor ; it is the judgment of the assessor, not that of the taxpayer, that controls.* If the taxpayer neglects or refuses to hand in the required list, he incurs a penalty which is sometimes the addi- tion of fifty or one hundred per cent to the value of his prop- erty ; and such provisions being in the nature of penalties for the violation of law, do not transgress any constitutional requirements of equality.* Courts cannot relieve against ex- cessive valuation. The assessors or board of equalization act judicially in this matter, and their decision can only be im- peached for fraud.® Likewise undervaluation in a few cases, with no proof that it was intentional, will not avoid an assess- ment.^ Errors of judgment on the part of assessors will not ordinarily avoid the list.* If a State should discriminate between resident and non-resident owners against the lat- ter, all assessments and sales tainted thereby might " possibly be declared void. But where the question relates to the action of a single assessor, or of a township or county board of equalization, and does not profess to be carried on with any purpose of making such discrimination, the mere errors in assessment should be corrected by proceedings which the law allows, before sale, or before a deed is finally made. There is no sufficient evidence in this case of any purpose to dis- 1 People V. Rains, 23 Cal. 127. 2 § 293. « §§ 286-292. * Felsenthal v. Johnson, 104 HI. 24, 25 (1882). « § 297. 6 Porter ». R. R., Q., & St. L. R. Co., 76 111. 564 (1875). ' Marshall v. Benson, 48 Wis. 564 (1878). » § 298. 262 VALUATION. § 286 criminate against the owner of the lands, nor of any actual injury to him by the assessment which was made upon his property."^ Where the assessors made no return of valua- tion of unseated lands, and the commissioners, in accordance with a usage of long standing in the county, assessed a tax upon such lands at the uniform valuation of one dollar per acre, it was held that the return of the assessor without valua- tion, or his omission to return them at all, should not exempt the lands from taxation, and did not render invalid a lawful tax assessed upon them by the commissioners. It was at most an irregularity cured by the provisions of the act of 1815.^ § 286. The Constitution of Illinois provided that the mode of levying a tax should be by valuation, so that every person should pay a tax in proportion to the value of his property. The revenue law of Feb. 19, 1827, provides that lands " are hereby declared subject to taxation, and for that purpose are hereby divided into classes, valued, and taxed as follows : Lands of the first quality shall compose the first class, shall be valued at four dollars, and taxed at the rate of two cents per acre ; lands of the second quality shall compose the sec- ond class, shall be valued at three dollars, and taxed at the rate of one and a half cents per acre ; lands of the third quality shall compose the third class, shall be valued at two dollars, and taxed at the rate of one cent per acre." This statute further provided that the owner or his agent should list his land in the class to which it belonged, in the auditor's office, accompanied by an affidavit that the list contained a true classification ; one listing only was required, and the auditor was authorized to charge the tax annually upon such classification till the owner furnished a new list. If the owner failed to list, the auditor was authorized to do so. It will be perceived that this valuation was an arbitrary one. Improved land worth twenty dollars an acre could be valued no higher than four dollars, and taxed at the rate of two cents per acre ; while lands of a merely nominal value were assessed at the rate of one cent per acre. The constitu- 1 Beeson v. Johns, 124 U. S. 59, 60 (1887). * Hess V. Herrington, 73 Pa. St. 438. 263 § 288 OP THE LISTING AND VALUATION OP THE LAND. tionality of this law was maintained by the Supreme Court of Illinois, upon the ground of necessity, expediency, and con- temporaneous construction, all of which were doubtful and dangerous reasons to assign in favor of the validity of a legislative valuation of land for the purposes of taxation.^ If such a principle is adhered to, there is an end of equality and uniformity in the operation of the taxing power under our constitutions, except so far as representative responsibility may secure them. The law which authorized this classifi- cation, and the amendments thereto, made the deed prima fade evidence of title ; or at least the courts so held.^ § 287. The legislature of Maryland imposed a tax of a specific sum upon each county in the State, without basing the assessment upon any actual valuation of taxable property. The constitutionality of this law was questioned ; but the Su- preme Court of that State held that before such a law could be pronounced unconstitutional it must appea,?* clearly that the persons taxable were not made to contribute according to their actual worth in real and personal property ; that in the absence of evidence they would presume that the tax was laid according to the provisions of the constitution, and that the legislature divided the tax among the counties according to the valuation of property in such local jurisdiction, and had such evidence before them as guided their judgment in that particular.^ § 288. The Constitution of Florida required " the General Assembly to devise and adopt a system of revenue having regard to an equal and uniform mode of taxation, to be general throughout the State." Under this clause the legis- lature passed an act dividing the land into three classes, and required the owner to list it in the class to which it belonged ; and the law was held constitutional.* 1 Rhinehart o. Schuyler, 7 111. 473 ; Bruce v. Schuyler, 9 id. 221. * Maxoy v. Clabaugh, 6 Dl. 26; Vance v. Schuyler, Id. 160; Graves ». Bruen, Id. 167; Messinger ». (xermain, Id. 631; Thompson ». Schuyler, 7 id. 271; Rhinehart v. Schuyler, Id. 473; Bruce v. Schuyler, 9 id. 221; Job ti. TebbettB, 10 id. 376; Irving v. Brownell, 11 id. 402. » Waters v. State, 1 Gill (Md.), 302. « Levy V. Smith, 4 Fla. 154. 264 VALUATION. §289 § 289. Upon the strength of the Illinois cases, affirming the constitutionality of the law of 1827, and that the deed was prima facie evidence of title, numerous recoveries were had in the courts of Illinois upon deeds acquired under that and , similar laws ; at length efforts were made to prove that the lands sold under those laws had never been listed for taxation in conformity with the legislative classification or valuation. The first attempt was made in Graves v. Bruen.^ The defend- ant in error relied upon a tax deed made in pursuance of a sale for the taxes of 1832. The plaintiff in error offered in evidence the deposition of the auditor for the time being, witli a diagram of the listing attached as a part thereof, of which the following is a copy : — Lands lying between the Illinois and Mississippi Rivers, patented by the United States to individuals, Jbr their military services, and taxed by the State of Illinois. Abstract. i Patentees. Present Owners. a Section. Township. Range. CO It 1 i iH •M i i 1-1 R.L.J.Austin. M. Bruen. N. B. 131 S. 7 W. g 1-H I-l 1 i 00 B i s < ^ The auditor deposed that the land in question was listed in the manner shown in the diagram, for the year 1832, and that there was no other evidence of its having been listed in any other manner ; that it did not appear whether it was listed by the owner or auditor ; that there was no distinction made in the diagram between the lands of residents and non- residents ; that it was his belief that the land in question was listed in the second class. B. H. Buckley, Esq., was called as a witness for the plaintiff in error, for the purpose of ex- plaining the diagram, who deposed that the' diagram was cor- rectly copied from a large book shown to him by the auditor as a tax book for the Illinois Military Bounty Land District ; that the caption was correctly copied from the first page of the book ; that the heading of the columns, and entries oppo- 1 6 HI. 167. 265 § 291 OP THE LISTING AND VALUATION OP THE LAND. site said tract of land, were copied from the page on which the land was entered, and which was many pages from the first ; that there was no heading to the fifth column of the diagram on the page from which he copied it ; that he was not certain that there was none at the commencement of the book, but thought there was not. It will be perceived, on examination of the diagram, that the quantity, quality, or class of the land does not appear, and that the rate of tax- ation is not uniform, so that the valuation is nowhere ascer- tained by inspection of the list, even by inference. This evidence was rejected by the court below, and the judgment affirmed in the Supreme Court. Scates, J. : " Although the diagram shows that some of the columns are blank, yet non constat, but the proper heading would be found in all cases by tracing the columns back to the first heading. The entries of dates, numbers, quantity, etc., are not necessarily repeated. The blank in the column refers back to the first entry ; and the loose and indefinite proof offered, being calculated to mislead the jury, was properly rejected by the court" § 290. In Graves v. Bruen^ which came before the court a second time upon additional evidence which explained the fifth column, and showed that no other listing of the land had ever been made, and gave all the evidence to be had upon the question in the auditor's office, the court held: (1) That the listing and valuation was a prerequisite which must exist ; (2) That the evidence showed no classification of the land, and is sufficient to rebut the prima fade char- acter of the deed. § 291. A more successful attempt was made to overthrow the deed in Job v. Tebbetts.^ There a deposition of the auditor was offered, and rejected by the Circuit Court, which purported to contain all the information appearing upon the files and records of his office, and the columns were traced back to the first page, and the class, quantity, or value nowhere appeared. The Supreme Court reversed the judg- ment, holding that the deposition was competent. Treat, C. J. : " Whether it (the deposition) established what the de- 1 11 ni. 431. 3 10 111. 376. 266 VALUATION. § 293 fendant sought to prove, we do not undertake to say ; but in our opinion the proof was pertinent to the point in issue, and should not have been excluded from the jury. The case of Graves v. Bruen, although an extreme case, is not in point. There the deposition was partial and incomplete in its state- ment of facts, and did not pretend or purport to contain all the evidence in the office relative to the matter in question. Here the auditor assumes to give all the information in his office concerning the matter in issue, and there is nothing on the face of the deposition, or in the case, to show that any- thing material is withheld. If it does not, in fact, furnish all the evidence in the office, the deficiency can be supplied in another deposition, or by transcripts of the record." § 292. The same principles, upon a similar state of facts, were reaffirmed by the court in Schuyler v. Hull ; ^ and the case of Job v. Tebbetts^ having been remanded for a new trial upon similar evidence, and the jury having found against the tax title, Tebbetts prosecuted an appeal ; but the Supreme Court sustained the verdict* These decisions made void every tax title in Illinois, from the formation of the State government down to and inclusive of the year 1838. It may be laid down as a general rule that a valuation being essen- tial, the statute must be strictly pursued in making and re- turning it, or the proceedings based upon it will be illegal and void.* § 293. The Standard for Valuation.^ — In Michigan, the certificate of the assessors of taxes must state that the real estate has been estimated at its "true cash value," or the sale is invalid, and a certificate stating that they have esti- mated the real estate " at a sum which for the purposes of assessing we believe to be the true value thereof " is fatally defective.® A valuation at one fourth the cash value is in » 11 HI. 462. " 10 m. 376. » Tibbetts v. Job, 11 HI. 453. * Thurston v. Little, 3 Mass. 429 ; Thayer v. Stearns, 1 Pick. (Mass.) 482. » See § 208. ^ Clark 0. Crane, 5 Mich. 151 ; see also Van Rensselaer t>. Witbeck, 7 N. r. 517; Parish ». Golden, 35 id. 462. 267 § 294 OP THE LISTING AND VALUATION OP THE LAND. open defiance of the law and of the oath of the assessors, and the habitual disi'egard of the statute in other localities is no excuse. If the taxpayers submit, and pay their taxes, they cannot afterward complain ; but if they refuse, the taxes can- not be collected.^ An assessment of town lots which does not give their cash valuation either in gross or detail is radically defective.^ It is held, however, that an agreement among the assessors of a district to assess all property at about one third its value, if faithfully carried out, works no injustice, and equity will not interfere.^ Usage can in no case justify a departure from the requirements of the law in this respect, where they are plain and unambiguous.* The assessment of a tax by one corporate body, based upon a valuation made under the authority of another, is unauthor- ized and void.^ A valuation by assessors at such sums as they " would appraise the same in payment of a just debt due from a solvent debtor " is equivalent to a valuation " at its true value in money." * In Wisconsin, the valuation must be " the full value which could ordinarily be obtained therefor at private sale." ^ § 294. Omission of the Dollar Mark? — The cases vary considerably in the distance to which they will go in inferring the meaning of figures from their position, spaces, lines, etc., in case of the omission of the appropriate marks. The ten- dency is to uphold the list if the meaning is clear by any means, either express or by fair and substantial inference. Figures in the column headed " Valuation," without any- thing to indicate, whether they are eagles, dollars, or cents, do not constitute a valuation, and the assessment is void for uncertainty.' The roll appeared as in the annexed diagram : I Wattles V. Lapeer, 40 Mich. 627, 628. ^ Hurlbutt «. Butenop, 27 Cal. 50. » Dean v. Gleason, 16 Wis. 1. « Thurston v. Little, 3 Mass. 429. » Granger v. Parsons, 2 Pick. (Mass.) 392. « Brock V. Bruce, 58 Vt. 261. ' Rev. Sts. § 1052; Webster- Glover L. & M. Co. v. St. Croix Co., 63 Wis. 647. « See §§ 350, 360. » People V. San Francisco Savings Union, 31 Cal. 135 (1866). 268 VALUATION. 294 Property. Valuation. State Tax, SOcts. Gul.Puiid,etc. 42^018. Total Tax, S2 10. Money at Interest. 101,937 18 917 42 433 21 2,140 68 And it seems perfectly clear upon inspection that no man of ordinary sense could fail to understand the meaning of the figures. An assessment must specify the cash value. Figures placed opposite town lots in an assessment roll, without any statement whether they stand for cents, dollars, or eagles, do not fix any valuation to the same, and a tax deed based on such "assessment is void.^ The use of numerals without some mark indicating for what they stand is insufficient.^ The ab- breviation " dolls." is equivalent to " dollars." ^ An assessment of real property which contains no valuation of the same ex- cept this, " Total value of taxable property, 245,011," there being no mark or sign to indicate whether such figures were meant to indicate eagles, dollars, cents, or mills, is void for uncertainty.* In Gibson v. Chicago ° the roll gave the valua- tions and assessments as in the diagram : — Valuation. Anessment. 3,000 76.92 2,500 47.73 2,500 65.36 4,000 59.32 6,000 177.97 etc. And the last column was footed $20,814 00, a red line being drawn between the 4 and the 00. The court remarked that this might be reasonably regarded as meaning twenty thou- 1 Huilbutt V. Butenop, 27 CaJ. 57 (1864); Braly x>. Seaman, 30 id. 610. » Lawrence ». Fast, 20 111. 338 (1858). « Salisbury v. Shirley, 66 Cal. 223. * Tilton K. O. C. M. K. Co., 3 Sawy. 22 (1874). 6 22 HI. 572 (1859); see Hurlbutt v. Butenop, 27 Cal. 50; Lane v. Bommelmann, 21 111. 147; Eppinger v. Eirby, 23 id. 523. 269 § 295 OP THE LISTING AND VALTTATION OF THE LAND. sand dollars, etc. but that there was nothing to show what the valuations meant. " No suspicion, no mere conjecture, without a particle of proof to warrant them, no matter how violent they may be, in any well-regulated government, has ever been held sufficient by its legal tribunals to warrant a condemnation." It seems to us that a well-regulated govern- ment does not refuse to be guided by common sense, but puts substance, before form ; and in this case no one could examine the roll five minutes, without being satisfied as to the mean- ing of the figures with a far higher degree of certainty than is attainable in regard to most of the facts upon which we have continually to act. If the footing of the assessment column is clear, as the court admits, then it is inevitable that the individual assessments are determined, for their addition makes the footing; and if each assessment is definite, the rate being known, the valuation of each tract becomes as cer- tain as though marked with the f mark and pointed. An assessment roll omitted the dollar mark ; the figures opposite a certain lot being 445 in the column headed " valuation," and 4.05 in the column headed "tax." The law required that taxes should be expressed in dollars and cents, and the court held that the figures written with a period separating two places at the right were clearly intended to express dollars and cents according to the usual method in writing federal money, and should be so understood.^ The omission in an assessment roll of some word or character to designate what the figures in the column headed " valuation " were intended to represent, is one of the defects which are reme- died by the 44th section of the Revenue Act of 1853.^ § 295. The Valuation must be Annual. — Fixing a rate is not charging the land with a tax, though the rate is essential to the charge. So where the rate is fixed by a triennial assess- 1 Chamberlain ». Taylor, 36 Hun, 30 (1885); see also Raley v. Guinn, 76 Mo. 263; First Nat. Bank of St. Joseph v. St. Joseph, 46 Mich. 528; Cahoon «. Coe, 52 N. H. 525; De Lashmutt i>. Sellwood, 10 Oreg. 319; Lyman v. Anderson, 9 Neb. 374; State v. Eureka Mining Co., 8 Nev. 15- 25; and the dissent by Breese, J., in Lawrence v. Fast, 20 lU. 338. s HiU V. Figley, 25 111. 156. 270 TALUATION. § 297 meiit as a basis for the annual assessment of lands, still the charging of the lands with taxes is an annual process, because neither the property nor its ownership necessarily continues unchanged for the triennial term ; and even if these matters remain the same in the particular case, the commissioners are not thereby relieved of the duty of making an annual charge of the tax for each year as the act of that year.^ § 296. Evidence of Valuation. — A supervisor's certificate of valuation is in Michigan legal evidence in cases involving the validity of the tax title, and cannot be impeached by parol.2 § 297. Penalty upon the Taxpayer for Refusal to file 'with the Assessors a Statement of his Property. — In McCormick v. Fitch ^ the law provided for an addition of fifty per cent by the auditor to the value as returned by the assessor, when there was a neglect or refusal on the part of the taxpayer to list the same or swear to the return. The court held that this law was void, as being in conflict with the constitutional provision. Art. 9, § 1 : " All taxes to be raised in this State shall be as nearly equal as may be, and all property on which taxes are to be levied shall have a cash valuation, and be equalized and uni- form throughout the State ; " and § 3 : " Laws shall be passed taxing all moneys, credits, etc., and all real and personal property according to its true value in money." But where there are no such provisions as to equality, such a penalty of fifty per cent will be sustained.* And even where the constitution provided that " all property should be taxed in proportion to its value," and that the rate of assess- ment and taxation should be uniform and equal, it was held that a fifty per cent penalty upon defaulters was constitu- tional. It was in proportion to the value of the property, and it was uniform in its application to all defaulters.^ Where the law provided, in case of refusal by the taxpayer to hand 1 Greenough v. Fulton Coal Co., 74 Pa. St. 500 (1874). 2 Blanohard v. Powers, 42 Mich. 619 (1880). » 14 Minn. 262 (1869). * Boyer v. Jones, 14 Ind. 357 (1860). « Ex parte Lynch, 16 S. C. 36 (1881). 271 § 297 OP THE LISTING AND VALUATION OP THE LAND. in a list, that the " said listers shall ascertain, as best they can, the amount of taxable property of such person or corpora- tion, shall appraise the same at its value in money, and shall double the sum so obtained," it was held that the assessors could not accept mere rumor that a man was worth ten thou- sand dollars as a basis for such doubling. They could not assess for property not visible ; they must find the amount of property and appraise it. In this case the assessors had nothing they could claim to have appraised.^ Under the Nevada stat- utes, if a railroad fails to furnish the statement required by law within the specified time, the assessor may value the property, and his valuation is not subject to revision by the board of equalization.^ In New Jersey, if a citizen declines to state to the assessor the particulars of his property, under oath or affirmation, he is not entitled to appeal or relief by certiorari? One who fails to bring in a list before the taxes are assessed loses the right to apply to the commissioners for an abatement of his tax,* unless he can show good reason for not having done so. This concerns only appeals from the assessors to the commissioners, and application may be made to the assessors for abatement for reasonable cause, whether the list was duly brought in or not.^ In Texas, one who re- fuses to render a tax list in accordance with the law is subject to indictment.^ 1 Howes V. Bassett, 56 Vt. 142 (1883). Under the Illmois statute (§§ 6, 8, Revenue Law of 1853, Scates's Statutes, p. 1050), requiring per- sons "to make out, sign, and deliver to the assessor, when required, a certified statement of all their personal property," etc., and providing that " if any person shall give a false and fraudulent list, or shall refuse to deliver to the assessor when called on for that purpose a list of his tax- able property, as required by law, the assessor, as a penalty therefor, shall assess the property of such person at double its value," it was held that the assessor has no power to double the true valuation of the property of an estate in consequence of the fraud of the executor thereof, nor the value of any real estate listed. Leper o. Pulsifer, 37 HI. 110. 2 State ». Washoe Co., 7 Nev. 83 (1871). « State ». Apgar, 31 N. J. L. 358 (1865). * Porter v. Commissioners of Norfolk, 5 Gray, 865 (1855). « Otis Company v. Ware, 8 Gray, 509 (1857). • Caldwell «. State, 14 Tex. 171 (1883). 272 OMISSIONS. § 298 § 298. Effect of omitting Tazable Property from the List. — An omission that is very heavy, or is in bad faith,i or inten- tional ^ though not in bad faith, avoids the assessment ; but an inconsiderable unintentional omission does not vitiate the pro- ceedings. The presumption is that in omitting certain lands in assessing taxes the assessor did his duty. Until the con- trary appear, it must be presumed that the land was exempt or worthless.^ Omissions or errors in the list, without bad faith, do not render the assessment void.^ " We are by no means prepared to say that the legality of a tax is in any way affected by any mere circumstantial error or defect in the detail of the items which go to make up the entire grand list of a town. Such a doctrine would render legal taxation extremely difficult, if not impossible. More or less property will always be omitted, and this will to some extent increase the burdens of all the other taxpayers. Nor will the tax be rendered void by rea- son of the manner in which any matter is determined by the listers, if such matter rests fairly within their legitimate dis- cretion." * A mere error of judgment or mistake of law will not in general avoid a tax.^ There must be bad faith, or intentional omission, or a flagrant misconstruction of law.^ Omission of some things subject to taxation does not vitiate the assessment. If the State is unjustly deprived of a por- tion of its revenue, that is no reason why it should forfeit the whole. It is true that taxation should, like the dew, fall equally upon all ; but practically this equality cannot be at- tained. There have been omissions, and there will be again. And " if an omission was made of one inconsiderable or even of a considerable class, ought that to render the whole assess- 1 Disputed. ^ Perkins v. Nugent, 45 Mich. 156 (1881). » Spear v. Braintree, 24 Vt. 418 (1852). * Henry v. Chester, 15 Vt. 467 (184.3). A reduction of valuation of part of land in a town, leaving the rest of the land at the old valuation, if innocently made, and not injuriously affecting the party objecting, wiU not vitiate the tax. Kelley v. Corson, 11 Wis. 1. 5 Williams v. School Dist., 21 Pick. (Mass.) 81 (1838); George v. In- habitants, etc., 6 Met. (Mass.) 497. « State V. Branin, 23 N. J. L. 509 (1852). VOL. I. — 18 273 § 298 OF THE LISTING AND VALUATION OP THE LAND. ment void ? We think not. Such a decision would cripple the operations of county and state, and do no good to any- body except those who derive good from general inconven- ience."^ While a statute which in terms or by necessary implication authorizes the omission from taxation for cor- porate purposes of real or pergonal property within the limits of a municipal corporation, so as to destroy the uniformity in respect to persons and property within the jurisdiction thereof required by the constitution, would be void, yet such omis- sions by ministerial officers, as when the assessor fails to list and assess all property subject to taxation, whether made wil- fully or from carelessness, cannot be taken advantage of to defeat a recovery for taxes against property which has been assessed. Such ofiScers may make themselves amenable to the law for misconduct in oflBice, but they cannot thus stop the wheels of government.^ " It would be a novel and dangerous doctrine to hold that if the assessors happen to omit some property really taxable, the assessment is thereby necessarily void, so that no taxes can be collected. There is perhaps scarcely a district in the State where this does not happen to a greater or less extent almost every year. It is undoubtedly the duty of the assessor to include all property liable to be taxed ; but unless it be in cases involving a palpable and greatly injurious disregard or misconstruction of plain requirements of the law, from the necessity of the case this is a matter which must be left to his own vigilance." ^ An omission of property by mistake of fact, erroneous com- putations, or errors of judgment does not vitiate the roll ; but an intentional omission, even though made in good faith, as where the officers suppose that a valid law exempting the prop- erty has been passed, will avoid the whole assessment.* If 1 17 Pa. St. 331, 339 (1851). " Dunham v. Chicago, 55 111. 357, 361 ; see also Schofield v. Watkins, 22 id. 66; Merritt v. Farris, Id. 303; People v. McCreery, 34 Cal. 432; Smith V. Smith, 19 Wis. 615; Dean v. Gleason, 16 id. 1. » State V. Piatt, Collector, 24 N. J. L. 121 (1853). * Johustou 0. Oshkosh, 65 Wis. 477; Weeks v. Milwaukee, 10 id. 274 EQUALIZATION, ETC. § 299 an omission or other defect in the list is designed and in- tended to oppress the plaintiff, the list is void. Bad faith vitiates the assessment.^ And an omission to assess a poll tax, not merely on one or a few individuals, but on a whole community, was held such a flagrant misconstruction of the law as to be beyond correction or overlooking ; and the assess- ment was set aside.^ Where authority is not conferred by statute, county commis- sioners cannot levy taxes on property for the years that have passed in which such property escaped them.^ § 299. Equalization, Appeal from Assessors, Notice of Meet- ings of Board of Equalization. — A board of supervisors, in equalizing assessment rolls, determines whether the relative valuations are disproportionate, and makes the necessary ad- ditions or deductions to or from the whole taxable property of the township, so that a township tax exceeding the amount voted by the town may be sustained on the presumption that the board had exercised its statutory right to increase the amount, if there is no evidence to the contrary. The equaliza- tion is not defeated by the facts that the report of it was not in writing, and that there was no written resolution adopting it.* An addition of ten thousand dollars to the total assess- ment of a township by the board of equalization, because they thought the valuation of realty was too low relatively to the rest of the county, was spread by the supervisor of the town- ship over the lands in his assessment roll. The court held that the increased burden should have fallen proportionally on the realty and personalty, and that the raised tax on the land was void.» The whole subject of equalization is under the complete jurisdiction of the board, their result is final and conclusive, and cannot be invalidated by showing that they adopted in their calculations an erroneous footing or 242; Hersey v. Milwaukee Co. Supervisors, 16 id. 185; Kneeland v. Milwaukee, 15 id. 454. » Heniy v. Chester, 15 Vt. 460. ^ State i>. Branin, 23 N. J. L. 509 (1852). s Perry County v. Selma, M. & M. K. Co., 58 Ala. 547 (1877). * Silsbee v. Stockle, 44 Mich. 561 (1880). ' Sinclair v. Learned, 51 Mich. 343 (1883). 275 § 299 OP THE LISTING AND VALUATION OP THE LAND. a^regate of valuations returned by tiie supervisor.^ But failure to fill out and attach the proper certificates of equaliza- tion to the state and county tax rolls is fataL^ An act which provides that the commissioners of appeal shall meet on a day named, and that the town collector shall post notices of the time and place of such meeting in four of the most public places in the township, is not void for want of giving notice to the taxpayer. It is sufficient if the citizen has an opportunity to be heard either before or after the assessment is made, and notice of the time and place of meeting of the board or court is sufficient, if personal, or by some general notice reasonably certain to reach him, or by some general law which fixes the time and place, and of which he must take notice.* Whatever provisions are made for giving notice must be strictly complied with. It is not enough to notify all but one of those entitled, and afterward to notify this one of another time and place where he can be heard.* A notice requiring persons to present their objections to an assessment to the assessors instead of to the chairman of the board, as required by law, is void.^ So where the notice was required to be published in papers appointed corporation papers, and publication was made after the appointment had expired, there having been no renewal, it was held void.^ Although notice be not given as required by statute that the assessment roll is in the hands of the clerk of the board of equalization, and of the time of the meeting of the board, if a party appears before the board he cannot object that notice was not given.'' When appeal is allowed to the selectmen under a provision that they shall give the appellant no relief if it appears to them that he has violated the law, the selectmen must not refuse a hearing to one who has failed to hand in his list. 1 Case V. Dean, 16 Mich. 12 (1867). 2 Maxwell v. Paine, 53 Mieh. 32 (1884). 8 State V. Runyon, 41 N. J. L. 103 (1879). * Lowell V. Wentworth, 6 Cush. 221 (1850). 6 Adrianoe v. McCafferty, 2 Rob. (N. Y.) 153. « IMd. 1 State V. Western Union Tel. Co., 4 Kev. 338. In this case the tax complained of was upon personal property. 276 EQUALIZATION, ETC. § 299 They act in a quasi judicial capacity, and must not prejudge the case. They cannot properly know until they hear him whether he is entitled to relief or not.^ In some States a tax- payer forfeits his right of appeal from the assessors by failure to give in a list of his property.^ Under a constitutional pro- vision restricting the jurisdiction of the Supreme Court to original proceedings in quo warranto, mandamus, and habeas corpus, and such appellate jurisdiction as may be provided by law, it was held that appellate jurisdiction can only be given where there has been a decision by one clothed with judicial authority, and acting in a judicial capacity, when making the decision ; that the power to tax is a legislative power, and not in any sense judicial ; that the valuation of property for pur- poses of taxation is an incident to the taxing power, and therefore not such judicial power as can be conferred upon the Supreme Court; and therefore § 11 of chap. 124 of the Laws of 1869, giving said court jurisdiction to hear appeals from the Board of County Clerks in the appraisal of property of railroads for the purpose of taxation is unconstitutional.^ * 1 Howes ». Bassett, 56 Vt. 142 (1883). " § 297. ' Auditor v. Atchison, Topeka, &c. R. Co., 6 Kau. 500. . 277 CHAPTER VI. OP THE LEVY OP THE TAX. § 300. Summary of the Subject. — A levy, or proceeding of a legislative nature exacting a sum of money according to some rule of proportion, by the legislature itself or the proper i body to ■which power is delegated,^ at the proper time,^ properly evidenced,* for a legal purpose,* and not excessive in amount,® is essential to the existence of a valid tax title.'' We shall further consider in this chapter the effect of a change of boun- dary after levy,* the effect of a levy that is too small,* the rule that taxes accruing under different levies must be kept separate,^" the cases in which a defective levy may be cured," and the construction of statutes that authorize levies.^ A levy made at the wrong place,^ or uniting distinct taxes in one levy,i* is bad. § 301. The levy of a specific sum of money, or of a certain % on value, by the proper authority, is another essential link in the chain of a tax title, without which the purchaser acquires no rights whatever. By this levy, and the listing, the amount which every citizen is bound to pay for tlie public benefit is definitely fixed ; and to it he is compelled to resort for the purpose of ascertaining how much money he must pay to that public as his share of a common burden, and thus prevent a sale of his property. It is the authority upon which the collector pro- 1 § 304. 2 § 328. 3 Essentialness disputed, § 308. < § 304. 6 § 313. 6 § 312. 7 § 301. « § 307. » § 317. i« § 322. " § 323. " § 329. 18 Capital State Bank v. Lewis, 2 So. Rep. 243 (Miss. 1887) ; 64 Miss. 727; Johnson v. Futoh, 57 id. 73. »« State 17. Wabash, St. L., & P. Ry. Co., 2 S. W. 275 (Mo. 1887) ; 96 Mo. 166. 278 OMISSION OF THE DOLLAR MARK. § 303 ceeds to demand and enforce the collection of the tax, — he has no other means of ascertaining the sum assessed against an estate, — and iu this respect it may be regarded as analo- gous to an execution issuing upon a judgment. It is the guide of the owner and officer in redeeming the land after the sale. Again, it is evident that the tax must be due and un- paid in order to authorize a sale of the land upon which it was assessed. This can only be sliown by proof that the land was not only listed and valued, but that the tax charged against it for the current year was in fact levied by condpetent author- ity ,i and in the time and manner prescribed by law. When such evidence is produced, the presumption is that the tax thus levied is unpaid, upon the same principle that a promis- sory note is evidence of a continuing debt until its extinguish- ment by payment is established.^ §302. Omission of "cents" or "dollar." — When decimal points and figures are used so as clearly to indicate the mean- ing, the omission of the word " cents " is immaterial, as a levy of $100 on the assessed valuation of the company as follows, " State fund, .64; general company fund, .40; " etc.^ Where the county board levied so many mills, omitting the words " on the dollar," but their intention was easily under- stood, the omission was not fatal.* § 303. The onus probandi is upon the party claiming under the sale ; ^ nor is there any difficulty in making proof of this ^ An unauthorized tax is void. See Greene v. Lunt, 58 Me. 518, 529 ; Norris v. Russell, 5 Cal. 249; Allen i'. Peoria & B. V. R. Co., 44 111. 85. The designation of a percentage on a definite sum is as certain as though the amount were calculated. Hubbard v. Winsor, 15 Mich. 146. '^ Den d. Pentland Scofield ». Lansing, 17 Mich. 437. = Hogelskamp v. Weeks, 37 Mich. 423 (1877). » Martin ». Cole, 88 Iowa, 141 (1874). * Jefierson's Estate, 35 Minn. 215. ^ See § 217. ^ Comins ». Harrisville, 45 Mich. 443 (1881); see Milwaukee & St. Paul R. Co. V. Kossuth County, 41 Iowa, 57. ' Alvis V. Whitney, 43 Ind. 97 (1873). 282 TIME OP LEVY. § 309 different from that named in the law, it will not be fatal, as where it is made at a valid meeting prior to the statute time ; ^ but where the levy is subsequent to the statute day it cuts short the time for collection, and being therefore prejudicial to the owner is void.^ What the effect would be of a levy made so soon after the time set as to have no substantial effect on subsequent proceedings, we cannot say from au- thority ; but it is probable the courts would refuse to sustain the levy, considering it dangerous to draw any other line than the one fixed by the statute, when the owner's rights may be involved. § 309. The Illinois statute of Feb. 26, 1839, authorized and empowered the County Commissioners' Court to levy a tax for county purposes, not to exceed one half per cent upon every one himdred dollars' worth of real or personal property, and then provided, " which tax shall be levied by said county commissioners at their June term in each and every year." ^ In several instances the county commissioners failed to levy the tax until the December term following. In such cases is the tax legal ? This will depend upon the ques- tion whether this provision is imperative — a limitation, in point of time, upon the power of the commissioners — or merely directory. Under a directory statute a duty should be performed at the time specified, for the sake of uniformity, and because the legislature have so ordered it, but it may be valid if performed afterwards ; * while under a peremptory law the act must be done at the precise time specified, or it is void.^ The general rule undoubtedly is, that where a 1 § 309. a §§ 309-311. » Laws, 1838-39, p. 11, § 20. In McLaughlin v. Thompson, 55 111. 249, under § 8 of the Revenue Law of 1845 (R. S. 438), providing that the County Commissioners' Court shall have power to levy a tax for county purposes of not more than four mills on each dollar's worth of property, and that the county tax shall be levied "at the March term of such court and collected with the State revenue, it was held that this section is peremptory in requiring such tax to be levied at the March term of said court ; and if levied at the June term, the levy and all subsequent proceedings under it would be void. ♦ Wells V. Burbank, 17 N. H. 393, 406. » Webster v. French, 12 111. 302. 283 § 309 OP THE LEVY OF THE TAX. statute directs a court or ofiBcer to perform a duiy or exercise a power at or within a specified time, without any negative words restraining the doing of it afterwards, the naming of the time will be considered as directory, and not as a limita- tion of authority.^ But a negation of authority at any other than the time specified need not exist in words ; it may ai'ise by implication, from a view of all the provisions of the stat- ute, manifesting an intent, on the part of the legislature, to restrain and limit the execution of the power or the perform- ance of the duty in point of time.^ Look at the provisions of the act in question. At the March term of the court the commissioners were required to appoint assessors and col- lectors for the ensuing fiscal year.^ The assessment was to be completed and returned on or before May 1.* Appeals from the assessment were to be taken and heard at the June term.^ The clerk of the County Commissioners' Court was required to return to the auditor of state the aggregate amount of State tax assessed in his county, immediately after the June term of his court annually, and by the first day of July.^ On the second Monday of August, annually, or as soon thereafter as the collector should be sworn into ofiBce, the assessment roll was to be delivered by the clerk of the Couniy Commissioners' Court to the collectorj The col- lectors were required, as soon as the lists of taxable property were thus delivered to them, to proceed and collect the taxes, by demand of the owner and distress of his goods.^ A lien npon the goods of the delinquent was created after demand and refusal, but not to continue to exist " longer than to the expiration of the year for which the taxes are due." ^ Personal property was not to be seized until twenty days after the de- mand of the -tax, and no sale to take place until fifteen days' 1 Pond V. Negus, 3 Mass. 230; People v. Allen, 6 Wend. (N. T.) 486; St. Louis County Ct. v. Sparks, 10 Mo. 117; Walker v. Chapman, 22 Ala. 116, 126. a Marsh v. Chesnut, 14 HI. 223; Billings v. Detten, 15 id. 218; Thames Manuf . Co. v. Lathrop, 7 Conn. 550. » §§ 5, 12. * § 11- » § 12. • § 13. M 14- ' § 16. • § 16. 284 TIME OP LEVT. § 309 notice of the time and place when and where it was to be made.^ If the first distress was insufficient, a second seizure and sale was authorized, upon giving like notice.^ The State and county taxes were directed to be collected together.^ At the end of each month the collector was required to pay over to the county treasurer all taxes collected during the preceding month.* The collector was made responsible for all State and county taxes charged upon his list, unless he used diligence to collect them, and failed in his efforts.^ The law required final settlements to be made with the auditor and County Commissioners' Court in March annually ; ^ and . the collector was required to report the delinquent list, and demand judgment against the lands embraced in it, at the first term of the Circuit Court to be held after his settlement was madeJ It would seem, upon a review of these various provisions, that the statute was imperative, and not merely directory, in requiring the County Commissioners' Court to levy the county tax at their June term. 1. The tax list could not be placed in the hands of the collector on the second Monday in August, if there was a failure to levy the. tax at the June term, because the next term of the County Com- missioners' Court would not be held until September. In consequence of this neglect less time would be allowed to the collector to enforce the payment of the taxes upon his list, against delinquents, than was contemplated by the legis- lature, and yet he would be held responsible for a failure to use the utmost diligence. He is entitled to the full time designated in the law. 2. If the time given the collector should prove insufficient, the State would nevertheless lose her lien upon the goods and chattels of the delinquent. 3. The county would be deprived of its monthly resources, by reason of the neglect of the commissioners to levy the tax in season. 4. The State might be delayed in the collection of her revenues, inasmuch as they were required to be col- lected along with the county levy, or separate lists for the State and county taxes must be delivered to the collector, » § 17. 2 § 17. s § 20. < § 21. 6 § 24. 6 §§ 21, 22, 23. ^ § 25. 285 § 312 OP THE LEVY OF THE TAX. which would be contraiy to the requirements of the statute. 6. There would be no uniformity in the revenue system, and embarrassment to all concerned would be the consequence. Lastly, as the basis of the county levy is the assessment roll, which the law requires to be completed and returned to the clerk of the court on or before the first day of May, and which is held to be imperative,^ no reason can exist for delaying the levy after the June term. § 310. But if the levy is made at a time prior to that fixed by the law, so that no prejudice arises from the deviation, it is good. Thus in Iowa, where the law provided that the board of supervisors should make a levy at the September session, but contained no words prohibiting a levy at any other time, it was held that a levy made at the June session was not invalid. Tlie provision was designed merely to secure order and system, and the rights of taxpayers are not prejudiced by the error .^ § 311. In Mississippi, under the Code of 1871, the levy must be made by the board at some lawful meeting prior to October 1. In the absence of proof to the contrary, it will be presumed that a special meeting at which the levy was made was rightfully held.^ A levy at an adjourned meeting not as provided for by law avoids the deed.* A levy on the first Monday of September instead of the first Monday of July was held void,* but the decision seems wrong in view of the existing curative acts. In Gamble v. Witty ® it was held that if the law names the first Monday of July for the meet- ing of the Boards of Supervisors to levy county taxes, any taxes afterward levied at a special meeting will be illegal and void, because levied at a time not authorized by law. § 312. An excessive levy avoids the sale.' So if the judg- > Marsh v. Chesnut, 14 111. 223; Billings ». Detten, 15 id. 218; see Brown v. Hogle, 30 id. 119. * Easton w. Savery, 44 Iowa, 656 (1876). » Brigins v. Chandler, 60 Miss. 862 (1883). * Smith V. Nelson, 57 Miss. 138; Wolfe v. Murphy, 60 id. 1. * Harris v. Stockett, 58 Miss. 825. » 55 Miss. 27 (1877). ' Morris ». Davis, 75 Ga. 169 (1886) ; see §§ 312-315. 286 EXCESSIVE LEVY. § 313 ment under which the sale is made is for a greater sum than the law authorizes, as where interest on the penalties was compounded.^ When the law fixes the maximum rate of taxa- tion, a levy by the commissioners beyond the limit is void; and if the tax on any individual is shown to be greater than that authorized, the sale of his land for such tax will be a nullity .^ But one who assents to a sale of property levied on, upon condition that the sale is postponed, which is done, cannot afterward complain that the levy was excessive.^ Very tri- fling errors will be disregarded in some States,* and the rule itself is sometimes changed by statute so that the excess is discarded and the levy held good.^ § 313. The power to levy the tax is a limited one, and if the limits prescribed by the law are transcended, the levy is void.^ In Kemper v. McClelland's Lessee," which was an eject- ment by the defendant in error against the plaintiff in error, the latter claimed title under a tax sale. The land in contro- versy lay in Hardin County ; the statute attached Hardin to Logan County " for all the purposes of taxation," and limited the power of the county commissioners in fixing the amount per centum which they might levy, and made the amount de- pend upon the aggregate value of all the property listed for taxation. Thus, when the aggregate value was one and a half million dollars or upwards, the road tax should not exceed one mill upon the dollar; when less, it should not exceed three mills upon the dollar of such valuation ; and where the aggregate value should be five hundred thousand or more, and less than one million, the county tax should not exceed three mills on the dollar ; and when less than five hundred thou- sand, such tax should not exceed five mills upon the dollar. Avery, J. : " When the power of the commissioner is so lim- ited, a tax of any greater amount is unauthorized and void. 1 Harland v. Eastman, 119 HI. 27 (1886); Gage v. Williams, Id. 566 (1886). » Kemper v. McClelland's Lessee, 19 Ohio, 327 (1850). ' Joues V. Johnson, 60 Ga. 262 (1878). * § 315. « § 821. • Canton West School District v. Merrills, 12 Conn. 437. ' 19 Ohio, 324. 287 § 315 OP THE LEVT OP THE TAX. In every case where an individual tax is upon trial shown to be greater than the amount authorized, a sale of the land for the payment of such tax will be deemed void ; and certainly a general tax must be void when no power exists for levying it. It only remains to look at the proof and see if the present is such a ca^. The proceedings of the commissioners show that a tax of four and a half mills was imposed for county purposes ; the certificate of the auditor of Logan County shows that the valuation for the two counties for the year 1830 was upwards of five hundred and thiriy-seven thousand ; that it was over five hundred thousand is taken for granted in the argument. The tax could not therefore legally exceed three mills. As it was in this case four and a half mills, the tax sale in controversy, and the deed made in pursuance of it, were void." § 314. Where the levy in a township exceeds the limit of taxation by three dollars, a tax deed based on such levy is void.^ Where the inhabitants of a school district voted to raise a tax of $250, and the assessors charged upon the list a tax of $285.01, the proceeding was held illegal.^ § 315. A still stronger case in support of the rule laid down is that of Huse v. Merriam.^ There the assessment was .... $226 62 The levy was . . . . . S215 00 Overlayings, 5 per cent 10 75 225 75 Excess $ 87 It was insisted that the proceeding was void because the assessor had exceeded the levy and overlayings authorized by statute eighty-seven cents. The answer was " de minimis non curat lex." Mellen, C. J. : " It is contended that the sum of eighty-seven cents over and above the five per cent is such a trifle as to fall within the range of the maxim, ' de minimis, etc. ; ' but if not, that still this small excess does not vitiate the ' Boyce «. Sebring, 33 N. W. 815 (Mich. 1887); see Seymour o. Petei-s, 35 N. W. 62 (Mich. 1887). » Joyner i;. Egremont Third Sdiool Disfc, 3 Ctish. (Mass.) 567. s 2 Me. 375. 288 EXCESSIVE LEVY. § 317 assessment. The maxim is so vague in itself as to form a very uncertain ground of proceeding or judging ; and it may be almost as difficult to apply it as a rule in pecuniary con- cerns, as to the interest which a witness has in the event of a cause, and in such case it cannot apply. Any interest ex- cludes him. The assessment was therefore unauthorized and void. If the line which the legislature has established be once passed, we know of no boundary to the discretion of as- sessors." In Kimball v. Ballard ^ an illegal excess of five per cent was held to avoid the tax sale.^ In Wells v. Burbank an excess of nine cents on the assessment was held to vitiate the tax ; but one dollar fees for the warrant, irrespective of the legality or illegality of the charge, was held not to vitiate the sale. § 316. But in O'Grady v. Barnhisel ^ it was held that a small mistake made by the collector in computing the amount of taxes and costs, by which the property was sold for a small sum (five and one half cents) more than the amount actually due, did not avoid the sale, particularly when it was not made to appear that the owner of the land suffered any injury by the mistake. This decision, however, was made under a statute (§ 32, Act of 1857) providing that every tax levied under its provisions should be " a Judgment against the person, and a lien against the property assessed," etc., which " shall have the full force and effect of an execution against all property of the delinquent," the court holding that the legis- lature intended by this proTision to apply the same legal rules to these sales as govern sales to enforce judgments in ordi- nary legal proceedings ; and in Kelley v. Corson,* which was an action for damages for taking a horse on a warrant for collection of taxes, where the taxes as carried out exceeded by $8.50 the amount required to be levied, excess was held to be so trifling as to be disregarded. § 317. Levy too small. — Where the tax is less than the amount authorized by law to be levied, it would seem clear 1 19 Wis. 601. '' So in Warner v. Outagamie Co., 19 Wis. 611; Wells v. Burbank, 17 N. H. 393. » 23 Cal. 287, 296. * 8 Wis. 182. VOL. I. — 19 289 § 318 OP THE LETT OP THE TAX. that the sale ought to be maintained, as the error does not prejudice the owner in any respect. In Hollister's Lessee V. Bennett ^ it was objected that too much tax was charged. The court made an estimate, and it appeared that the tax really due was 81J cents, while it was charged with only 81 cents and 2 mills, being half a mill less than was due. The court then say : " To the amount of taxes and. penalties should have been added the interest, which was not done, so that the lot, instead of being charged with too much, as was supposed by counsel, was charged with too little." § 318. Illegal Levy. — If any part ^ of any levy which enters as a factor into the taxes for which the land is sold was for an illegal purpose, the sale is void. This rule may be altered by statute, and where judicial proceedings intervene, if it is possible to separate the legal from the illegal, judgment may be rendered for the taxes legally levied.* The power of taxation is one of the highest attributes of sovereignty. It cannot be enforced against the citizen unless it is clearly and distinctly authorized by law. It is important that it should be known that the power of the majority over the property and even the persons of the minority is limited by law to such cases as are clearly provided for and defined by the statute which confers the taxing power. Hence, whenever money is raised by taxation, the purpose for which it is levied ought to appear upon the face of the proceeding ; and if that purpose is illegal, there can be no authority to collect the tax, the officer who attempts to enforce it will be liable in trespass, and the purchaser can acquire no title to the property seized and sold to satisfy it. Thus the levy of a tax for the support of a ministry, or to defend the town against a public enemy, is not warranted by a law conferring power to lay and collect taxes to " defray necessary town charges." * Evidence that certain sums illegally paid by a 1 9 Ohio, 83. 2 See §§ 319, 320; Rogers v. White, 35 N. W. 799 (Mich.). » § 321. * Lisbon v. Bath, 21 N. H. 319; Bussey v. Gilmore, 3 Me. 191 ; Stetson V. Kempton, 13 Mass. 272. 290 ILLEGAL LEVY. § 319 county were paid at a time when they must hare come from a tax levy for which certain tax deeds were made is admissible to void the deeds.^ § 319. The land must be liable for all the taxes for which it was sold. In such cases all of the proceedings to collect are necessarily void, as it is impossible to separate and dis- tinguish so that the act should be in part a trespass and in part innocent.^ In Elwell v. Shaw it appeared that there were five distinct taxes assessed, and committed to the col- lector in separate bills, for the non-payment of all which the land in controversy was sold. The only objection made to the validity of the sale was, that in one of these assessments the overlayings exceeded, by ten dollars and thirteen cents, the amount authorized by statute. The sale was held void. The court say : " The counsel for the tenant relies principally upon the authority of Colman v. Anderson,* but the assess- ment there objected to was made prior to the statute limit- ing the overlayings to five per cent. Anterior to this statute a practice had arisen, which had been universally acquiesced in, to exceed, in the aggregate of the assessment, the entire amount authorized ; partly to obviate the perplexity to which assessors were subjected in consequence of the fractions in the assessment of taxes upon the polls and' estates of the inhabitants of the respective towns, and partly to meet 1 Culbertson o. Witbeck & Co., 8 S. Ct. 1136. ' Elwell V. Shaw, 1 Me. 339; Torrey v. Millbury, 21 Pick. (Mass.) 64, 70; Bangs v. Snow, 1 Mass. 181, 188, 189; Drew o. Davis, 10 Vt. 506; Thurston v. Little, 3 Mass. 429, 433; Dillingham v. Snow, 5 id. 547; Stetson V. Kempton, 13 id. 283; Libby v. Burnham, 15 id. 144; Doe d. Weed B. M'Quilkin, 8 Blackf. (lud.) 335; M'Quilkin ». Doe d. Stoddard, Id. 581; Hayden v. Foster, 13 Pick. (Mass ) 492; Alvord v. Collin, 20 id. 418; Kemper v. McClelland's Lessee, 19 Ohio, 324; Lacey v. Davis, 4 Mich. 140; Hardenburgh v. Kidd, 10 Cal. 402; Scbenck v. Peay, 1 Dill. C. C. (U. S.) 267; Pierce v. Schutt, 20 Wis. 423; Bucknall v. Story, 36 Cal. 67, 72; McLaughlin v. Thompson, 55 111. 249; Buell v. Irwin, 24 Mich. 145; Scott v. Stearns, 2 Mich. N. P. Ill, 116; Dean v. Charlton, 23 Wis. 590; Hall v. Kellogg, 16 Mich. 135, 140; St. Anthony Falls Water Power Co. v. Greely, 11 Minn. 321, 325; Clarke v. Strickland, 2 Curtis, C. C. (U. S.) 439, 443. » 10 Mass. 105, 115. 291 § 320 OP THE LEVY OF THE TAX. abatements and mistakes, and to insure the collection of the whole sum ordered to be assessed. With a view to sanc- tion and to limit this discretion, the legislature at length interposed, and gave to assessors a latitude fully adequate to enable them- to discharge with ease the duties imposed upon them. To suffer them to exceed this limit would be to subject the citizens to the payment of taxes, to the imposi- tion of which they had never assented, and to create uncer- tainty in tlie amount, in violation of the manifest provisions of the statute." § 320. If land be sold for the non-payment of divers taxes, one of which is illegal, and the residue legal, the sale is void,^ as where it included a sum for an agricultural society which could only be legally levied upon a sworn certificate being made that at least one hundred dollars had been raised by the society itself, which certificate had' not been made.^ Where the State, county, and township taxes are blended in one col- umn, any material excess in one will render the taxes in such column void, and a sale based on such tax invalid.^ And where such column is excessive by just the amount of another tax which should have been stated in a different column, but does not purport to be included in the levy at all, this will not help the defect.^ And where the supervisor could by law assess only for such township expenses as were certified by the town clerk, and such certificate for a part only of the sum assessed was found, it was held that it was not to be presumed that there had been certificates for the residue, but the contrary, and that the sale was void, though the excess caused in the tax was only fifteen cents on one parcel of land, and six on another.* An erroneous footing by the board of supervisors of the valuations of the personal property, or an estimate of the aggregate valuation of the real estate different from that at which it was equalized, will not avoid the tax unless it has a tendency to increase the burden upon the land in question.^ And that the supervisors, in equalizing the 1 Hall V. Kellogg, 16 Mich. 135. * Case V. Dean, 16 Mich. 12. « Ibid. * Ibid. 6 Ibid. 292 ILLEGAL LEVY. § 322 valuations of real estate, adopted an erroneous footing of the valuations of the real estate made by the supervisor, is imma- terial, as the subject of equalization of real estate is wholly within their jurisdiction, and their decision conclusive.^ If any indistinguishable or inseparable part or proportion of an entire assessment is illegal, the whole assessment is illegal.^ § 321. But in Iowa the rule that an illegal excess vitiates the sale has been changed by statute (Revision of 1860, §§ 753, 755, 762), so that if any portion of the tax is legal the sale will be upheld;* and this act is constitutional.* Where judicial proceedings intervene, and a tax is so levied that the legal can be separated from the illegal, judgment may be rendered for the taxes legally assessed.^ In California, where judicial proceedings intervene, if a judgment for a tax enforces a lien on real estate by sale thereof not only for the tax on the land, but also for a personal tax, and the latter is erroneous, not being a lien on the land till after the judg- ment is docketed, a sale under the judgment is not void, nor can it for that reason be impeached in an action brought to set it aside.^ In Dietrick v. Mason,^ where a tract had been divided, and part was seated and part unseated, and the whole was assessed and sold together for taxes, it was held that at most such an assessment was only an irregularity such as would be cured by § 4 of the Act of March 13, J815, and the title to the unseated portion would, after the expiration of the time of redemption, pass to the purchaser. § 322. Taxes assessed under different Levies must be kept separate. — In the assessment of. taxes the State, county, city, 1 Case V. Dean, 16 Mich. 12. " Hubbard v. Brainard, 33 Conn. 563; Hartford First Eocl. Soo. v. Hartford, 38 id. 274, 290. « Rhodes v. Sexton, 33 Iowa, 540; Eldridge v. Kuehl, 27 id. 160; Parker v. Sexton, 29 id. 421; Sully v. Kuehl, 30 id. 275; Hurleys. Powell, 31 id. 64. * See Parker v. Sexton, supra. s People V. Nichols, 49 111. 517; State v. Allen, 43 id. 456; Allen v. Peoria & B. V. R. Co., 44 id. 85; Laflin v. Chicago, 48 id. 449. " Reeve v. Kennedy, 43 Ca,l. 643 ; see also Jones v. Gillis, 45 id. 541 ; Stokes V. Geddes, 46 id. 17. ' 57 Pa. St. 40. 293 § 324 OP THR LBVy OP THE TAX. road, school, and other taxes authorized by law to be levied and collected ought to be kept separate, and not blended together. The reason is obvious. They are imposed by dif- ferent authorities, and for different objects. One tax may be levied by competent authority, and for a lawful purpose, while another may be altogether unwarranted. When any taxpayer thinks proper, he has a right to look into each one of these taxes separately, and have its legality determined by the appropriate tribunal. This cannot be done where the ■ dif- ferent taxes are confounded together, and the identity of each is thus destroyed. A confusion of the several taxes cannot take place without invalidating the entire assessment.^ § 323, Reassessment, Cure, etc. — The State has a lien for taxes justly diie from the land.^ This it may enforce,^ where the proceedings are invalid, by ordering a reassessment * or enacting a cure ^ of informalities. A listing and a levy must in fact exist ; their absence cannot be cured, but only their irregularity.^ § 324. Lien. — The State has a lien upon land for taxes actually levied, and also for such as were properly chargeable upon the land, but by reason of the neglect of the officers intrusted with the duty of assessing it the land was omitted in the list of a particular year ; and a sale of the land by the assignees of a bankrupt does not divest the lien of the State upon the land for taxes due upon it, even though sold by the assignee free of incumbrance.^ ■ In Indiana, the taxes for poll and personal property against the owner of the land while so owner, as well as the taxes on the land, are a lien upon such land ; ' and the real estate is liable for these taxes, even though his title be afterwards extinguished by the foreclosure of a mortgage thereon of older date than bis purchase.* "Back taxes," as they are called, may be assessed and collected with 1 State V. Falkinburge, 15 N. J. L. 320; Camden & Amboy R. Co. ». Hillegas, 18 id. 11. « § 324. 8 § 327. * § 325. « § 326. « Stokes V. State, 46 Ga, 412. ' Bodertha v. Spencer, 40 Ind. 353; Isaacs v. Decker, 41 id. 410, 413. ' Isaacs V. Decker, supra, 294 EEASSESSMENT AND CURE. § 325 the taxes of the current year, although the land upon which they are chargeable has passed into the hands of a bona fide purchaser. § 325. Reassessment. — In Tallman v. Janesville ^ it was held that the legislature had power, to provide for the re- assessment of a tax which had been declared void as vio- lating the constitutional rule of uniformity."'^ So where a special tax on adjoining lot-owners for improvements is in- valid by reason of some defect of power in the municipal authorities, it is competent for the legislature to provide for its reassessment, provided the tax be such as the legis- lature might originally have authorized had it seen fit.^ But ch. 132, Laws of 1868, providing that where any tax or assess- ment has been set aside and declared void by any court, " in consequence of any irregularity in any of the proceedings in levying it," or, " of any omission to comply with the forms of law " under which it was made, it may be reassessed, etc., does not apply to a case where the tax itself was not author- ized by law.* In the absence of proof on the subject, it will be presumed that the taxes whose reassessment is provided for were adjudged void for some defect which the legislature can constitutionally cure ; but this presumption may be over- come by proper proof (e. g., as that they were for a private purpose).^ So in Michigan the same presumption of regu- larity exists in relation to the reassessment of rejected taxes by the board of supervisors under § 81, Act 49, of 1843.® Such statutes being in derogation of individual rights should 1 17 Wis. 71. ^ See also Cross ». Milwaukee, 19 Wis. 509. But see the rule laid down in Dean v. Borchsenius, 30 Wis. 236, 247; see also Cooley's Consti- tutional Limitations, pp. 209, 371, 382, and cases cited. ' « May V. Holdridge, 23 Wis. 93 ; see also Dean v. Charlton, Id. 590; Mills V. Charleton, 29 id. 400; Evans v. Sharp, Id. 564; State, ex rel. Doyle, V. Newark, 34 N. J. L. 236; Howell v. Buffalo, 37 N. Y. 267; Dill V. Roberts, 30 Wis. 178; Dean v. Borchsenius, 30 id. 236; Dean V. Charlton, 27 id. 522. * Dean v. Charlton, supra. ' Dill V. Roberts, supra. » Tweed v. Metcalf,-4 Mich. 579, 590. 295 § 326 OP THE LEVY OF THE TAX. be strictly construed.^ Where certain property (rents accru- ing from perpetual leases) had in 1864 been in fact assessed, but to a person not the owner, and upon petition duly made to the assessors the same property was put on the roll for 1865, and assessed to the true owner, and a tax levied upon it for 1864, it was held that under the act of 1865 (p. 818, §§ 1, 2) this was such an " omission in the assessment roll " of 1864 as made its reassessment valid ; and that (the statute author- izing the entry of such omitted property " whenever it shall appear to them" that it has been so omitted, etc.) such reassessment might be made by the assessors after the time fixed by law for completing their roll for public inspection.* § 326. Cure. — " Curative statutes may cover any mere irreg- ularity in the course of proceeding for the enforcement of a lawful demand ; but they can never cure a want of jurisdiction either in tax proceedings or those of any other description." ? The cases last cited hold that an assessment good in sub- stance is the basis of taxation, and that its absence cannot be remedied by Ifegislation, though irregularities in assessment may be so remedied. If the legislature has antecedent power to authorize a tax, it can cure by a retroactive law an irregu- larity or want of authority in levying it, though thereby a right of action which had been vested in an individual should be divested.* But the legislature cannot do by a curative or retrospective act what it could not have previously author- ized.^ A statute providing that "all levies of taxes here- tofore made by any incorporated 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 1 Dean v. Charlton, 27 Wis. 522. = Overing v. Foote, 43 K. Y. 290. 8 Hart V. Henderson, 17 Mich. 218; Jfeople v. Goldtree, 44 Cal. 323; see also People v. McCreeiy, 34 id. 432; and People v. San Francisco Savings Union, 31 id. 132. * Grim v. Weissenberg Sch. Dist., 57 Pa. St. 433; see also Wilson «. Buckman, 13 Mmn. 441; State r. Reed, 31 N. J. L. 133 ; Tucker p. Lee County Inf. C. Justices, 34 Ga. 370. s Cleveland National Bank ». lola, 9 Kan. 696; see also Cooley's Con- stitutional Limitations, p. *371 ; Nelson v. Soontree, 23 Wis. 367 ; Mann ». Utica, 44 How. Pr. (N. Y.) 334. 296 EEASSESSMENT AND CDBE. § 328 the same are hereby legalized," was held constitutional, and to cure such irregularities as the basing the assessment upon the valuation of the wrong year, and the failure of the assessor to return his lists in due time.^ § 327. This power of reassessment and cure grows out of the necessities of the government and the nature of a tax lien, which admit no property in the citizen while a tax remains impaid, and regard the land as a pledge — perpetual in its character — to pay the debts and current expenses of the gov- ernment. It would be a violation of principle to hold that a publicjright shall be lost by the mere delay or neglect of the public agent to enforce it ; and in the absence of a statute expressly limiting the time within which it may be done, back taxes may be collected at any time. The State is never guilty of laches. In many cases the statute expressly pro- vides that assessments, and reports of delinquents, shall be made not only of taxes for the current but for " the preceding year or years." Where such is the language of the law, the right to collect back taxes is clear.'-' § 328. Power of Municipal Corporations to levy Taxes. — The legislature have power to delegate to municipal corpora- tions, and other local tribunals or bodies, authority to levy and collect taxes for specified purposes, and to determine the extent of territory which shall constitute a tax district.^ 1 Miisselman v. Logansport, 29 Ind. 533. ' Farham v. Decatur Co., 9 Ga. 352; Swan v. Knoxville, 11 Humph. (Tenn.) 130; State e. Pemberton, Dud. (Ga.) 15; Paden v. Akin, 7 Watts & S. (Pa.) 456 ; Curry v. Fowler, 3 A. K. Marsh. (Ky.) 504; Edwards v. Beaird, 1 111. 41; Madison Co. v. Bartlett, 2 id. 67, 70, 71; Hayden e. Foster, 13 Pick. (Mass.) 492. But no tax is dne until as- sessed ; and where land was sold for back taxes before a year from the assessment, the sale was void under the Pennsylvania statute, which only authorized sale where taxes bad been due and unpaid one year. See Miller v. Hale, 26 Pa. St. 432. < Shaw V. Dennis, 10 111. 405; Fitch v. Finckard, 5 id. 69 ; Sawyer v. Alton, 4 id. 127; Thomas v. Leland, 24 Wend. (N. Y.) 60, 65; Vander- bilt v. Adams, 7 Cow. (N. T.) 349; Norwich v. Hampshire County Com- missioners, 13 Pick. (Mass.) 60; Paris Trustees v. Berry, 2 J. J. Marsh. (Ky.) 483; Hope v. Deaderick, 8 Humph. (Tenn.) 1; Baldwin v. City CouncU, 53 Ala. 439 (1875) ; PhUadelphiac. Greble, 38 Pa. St. 339 (1861). 297 § 328 OP THE LEVY OP THE TAX. While this doctrine is unquestionable, a municipal corpora- tion or other inferior organization possesses, no power to levy taxes not clearly and unequivocally authorized by its act of incorporation.^ Where they are thus authorized, they must, in the exercise of the power, conform to the principles and requirements of the constitution.^ And where, by charter, such corporation had power to " assess and collect taxes according to law," the general law in force at the time of the assessment and collection of the particular tax was held to be the one intended, and not the law in force at the time of the enactment of the charter ; otherwise the corporation would be excluded from a participation in the improvements of the system of taxation which might be made from time to time.* Where a county or other local corporation levies a tax which is illegal, and the citizen pays the tax to one who has a for- mal authority to collect it, the payment is not voluntary, but compulsive, and an action will lie against the collector to recover it back,* unless he has paid it over to his superiors, in which event the action must be brought against the cor- poration.^ But in no case can the State be compelled to 1 Asheville v. Means, 7 Ired. (N. C.) 406. * Hope V. Deaderick, 8 Humph. (Tenn.) 1. « Ontario Bank ». Bunnell, 10 Wend. (N". Y.) 186. * Erskine v. Van Arsdale, 15 Wal (D. S.) 75; Hubbard v. Brainard, 35 Conn. 563; Hartford First Eccl. Sob. v. Hartford, 38 id. 274; Stephen- son County Supervisors v. Manny, 56 111. 160; Lanman v. Des Moines County, 29 Iowa, 810; Greenabaum v. King, 4 Kan. 332; Phillips v. Jef- ferson County Commissioners, 5 id. 412; Wabaunsee County Commis- sioners V. Walker, 8 id. 431; Sims v. Jackson Par., 22 La. Ann. 440; Sturgis First Nat. Bank v. Watkins, 21 Mich. 483; Nickodemus ». East Saginaw, 25 id. 456; Atwell v. Zeluff, 26 id. 118; Foster v. Blue Earth County Commissioners, 7 Minn. 140; Dakota County Commissioners v. Parker, Id. 267 ; Newman v. Livingston County Supervisors, 45 N. Y. 676; Grim V. Weissenberg Soh. Dist., 57 Pa. St. 433; Babcock v. Granville, 44 Vt. 325; Allen v. Burlington, 45 id. 202; Phillips v. Stevens Pt., 25 Wis. 594; Judd ». Fox Lake, 28 id. 583. * Sumner v. Dorchester First Par., 4 Pick. (Mass.) 361; Joyner v. Egremont Third Sch. Dist., 3 Cush. (Mass.) 567; Dakota County Com- missioners V. Parker, 7 Minn. 273; but see Greenabaum v. King, 4 Kan. 832 ; see also Shoemaker v. Grant County Commissioners, 36 Ind. 175, as to the State's being a trustee, and the remedy against the State being 298 CONSTBUCTION OP STATUTES. § 329 refund a tax voluntarily paid, upon a claim of technical illegality in the assessment, provided the property on which it was paid was legally taxable.^ But the fact that a tax is unconstitutional, or otherwise illegal, is no defence to a collector who refuses to pay over the tax after he has col- lected it."a § 329. Construction of Statutes authorizing a Levy. — It is said that a statute authorizing the levy and collection of taxes, if ambiguous or uncertain as to the amount of the levy, should be liberally construed by the courts, and the leaning should be in favor of the larger sum.^ On the other hand, the rule is laid down that statutes imposing taxes or burdens upon the citizen must be strictly construed, and the subjects of taxation and the amount of the tax must clearly appear.* And in Dwarris^ it is said to be a well-settled rule of law " that any charge upon the subject must be imposed by clear and unambiguous language. Where there is any ambiguity found, the construction must be in favor of the public, be- cause it is a general rule that where the public are to be charged with a burden, the intention of the legislature must be explicitly and distinctly shown." This would seem to be the safer rule to adopt. Upon this point Chief Justice Ruffin remarks : " I do not think that a strained construction is allowable of an act which levies money from the citizen. The amount of the levy, the subject of it, and the method of only in an appeal to the law-making power to make the necessary appropriations. 1 People V. Miner, 46 El. 374 ; Stephenson County Supervisors v. Man- ny, 56 id. 160; Rogers v. Inhabitants of Greenbnsh, 58 Me. 390. » Waters v. State, 1 Gill (Md.), 302; Moore v. Alleghany City, 18 Pa. St. 55. » Martin v. St. Luke's Par. Tax CoL, 1 Speers (S. C), 343; Bleight v. Auditor, 2 T. B. Mon. (Ky.) 27; Carter ». Bnrgen, 1 McMull. (S. C.) 410, 421. * But see Cornwall v. Todd, 38 Conn. 443, 447; Hubbard v. Brainard, 35 id. 563. Rule of liberal construction fixed by statute in Tennessee, See Randolph v. Metcalf, 6 Coldw. (Tenn.) 400, 407. * Dwarris on Statutes, 749 ; Butler, arguendo in Ontario Bank v. Bun- nell, 10 Wend. (N. Y.) 188; Sewall v. Jones, 9 Pick. (Mass.) 412, 414: Savannah v. Hartridge, 8 Ga. 23, 30. 299 § 329 OP THE LEVT OP THE TAX. raising it ought to be so plainly pointed out as to avoid all danger of oppression by an erroneous interpretation ; and where there is a fair doubt, the citizen should have the benefit of it."^ It is also laid down as a rule in the con- struction of this class of laws, that they ought not to be so construed as to subject the property of any person or corpora- tion to double taxation, unless it is clearly authorized by the words of the law.^ 1 Attiomey-General v. Bank of Newbem, 1 Dev. & B. Eq. (K C.) 218. ^ Bank of Georgia v. Savannah, Dud. (6a.) 130, 132; Rockingham Sav. Bank n. Portsmouth, 52 N. H. 17 ; Nashua Sav. Bank v. Kashua, 46 id. 389, 398, and cases there cited; New Haven Toll-Bridge Co. v. Osborn, 35 Conn. 7. As to what constitutes double taxation, see People v. Whartenby, 38 Cal. 461; People v. Kohl, 40 id. 127. 300 CHAPTER VII. OP THE AUTHOEITY TO COLLECT THE TAX. § 330. Summary of the Subject. — In most, though not all ^ the States it is essential to a good tax title that a warrant to collect, which is a copy of the tax list,^ made by the proper officer^ and duly authenticated,* shall be delivered to the proper officer,^ at the proper time,^ and that any other re- quirements of the law in relation to the warrant shall be com- plied with.^ In the chapter relating to the authority of the officer to sell the land as delinquent, the subject will be renewed, and more fully explained and illustrated by the authorities. This chapter might be regarded as useless, but for the fact that in some of the States the power to sell the land is vested in the hands of a different officer from the collector. In all such cases it is apparent that the power to collect and the power to sell are distinct acts, each of which must exist, or the entire proceedings must fall to the ground. § 381. The authority to collect the tax is a separate and distinct thing from the authority to sell the land in case the owner proves delinquent, although the same officer usually ex- ercises both powers.^ When the lands in a collection district have been duly listed and valued, and the tax due upon each tract has been assessed, a list of such lands is placed in the hands of the collector, whose duty it is to proceed, after a day named, to demand the tax of each resident owner, and in case of the neglect or refusal of such owner to pay, to seize the goods, or imprison the body of the delinquent, in satisfac- 1 § 331, near its close. = § 331. « § 331. * § 332. 6 1 331. 6 § 333. t § 334. ' If there is no statute authority to sell the land, the sale is void. Whitney v. Thomas, 23 N. T. 281, 283. 301 § 331 OP THE ADTHOEITT TO COLLECT THE TAX. tion of the tax ; and in the event that neither the body nor goods and chattels can be found, it is then made the duty of the collector either to return a list of the delinquents to some other officer, or himself to proceed, in conformity with the law, to make sale of the lands embraced in his list, upon which the taxes remain due and unpaid. This authority is variously denominated the " list," " duplicate," " invoice," or " warrant to collect," ^ according to the peculiar legislation or usage of each State. It has already been shown that the listing, valuation, and levy of the tax, which usually appear upon one document, called the list, is in the nature of a judg- ment.^ Upon the same principle it may be said that a copy of the list, duplicate, invoice, or warrant to collect is analo- gous to an execution, and constitutes the only authority of the officer to proceed and collect the tax, by a demand, or seizure of the body or goods, in case payment is not made of the tax charged.^ Without a legal document of this nature^ delivered by the officer of the law designated for that purpose, the collector has no authority to proceed to enforce payment of the taxes. His demand, seizure of the body or goods, his return, and all of his other acts, will be nullities, and lay no foundation for the advertisement and the sale of the land by the officer intrusted by law with those duties.* Where the 1 The supervisor's warrant to the township treasurer to collect taxes in Michigan need not run in the name of the People of the State of Michi- gan. Tweed v. Metcalf, 4 Mich. 579, 588; Wisner v. Davenport, 5 id. 501. Such warrant, if unsigned, is void. Tweed v. Metcalf, supra. « See also Aldrich v. Aldrich, 8 Met. (Mass.) 102. 8 Den d. Pentland v. Stewart, 4 Dev. & B. (N. C.) 386; Van Rensse- laer t'. Witbeck, 7 N. Y. 517; see also Gossett ». Kent, 19 Ark. 602. * Hannel v. Smith, 15 Ohio, 134 ; Holt's Heirs' Lessee v. Hemphill's Heirs, 3 id. 232; State v. Woodside, 8 Ired. (N. C.) 104; Barnard v. Graves, 13 Met. (Mass.) 85; Homer v. Cilley, 14 N. H. 85; Chandler v. Spear, 22 Vt. 388; Shaw v. Dennis, 10 111. 405; Allen v. Scott, 13 id. 80; Bassett v. Porter, 4 Cush. (Mass.) 487; Chase v. Sparhawk, 22 N. H. 134; Moore v. Alleghany City, 18 Pa. 54, 55; Abbott v. Yost, 2 Denio (N. y.)^ 86 ; Downing v. Roberts, 21 Vt. 441 ; Sheldon v. Van Buskirk, 2 N. Y. 473;. Downer v. Woodbury, 19 Vt. 329; Braokett v. Whidden, 3 N. H. 17, 19; Dillingham v. Snow, 5 Mass. 547, 558; Wheeler v. Anthony, 10 Wend. (N. Y.) 346; Hathaway v. Goodrich, 5 Vt. 65; King ». Whitcomb, 302 SUMMAKY. § 331 warrant was made by a justice of the peace, when by the law to which the proceedings to sell in the particular case should hare conformed a justice of the peace had no jurisdiction in the matter, the warrant was void, and of course the sale was of no effect.^ It must not only be made and delivered by the proper officer, but it must be placed in the hands of the col- lector dejure or de facto, and not in those of a mere usurper? However, if an officer de facto seize the body or distrain the goods of the taxpayer he will be liable as a trespasser ; and every citizen against whom a tax has been assessed has such an interest in the tax list as will authorize him to become a relator, in an information in the nature of a quo warranto, to Inquire by what authority the intruder exercises the powers and performs the duties of the ofl&ce of collector.^ A tax warrant is not invalid because addressed to the sheriff instead of the collector of revenue, unless the sheriff and collector are different persons.* It is not necessary that the warrant com- mitted to a collector should in terms specificaUy direct the sale of real estate.^ In Iowa, a tax warrant to the treasurer is not essential to the validity of a tax sale, the treasurer deriving his authority to sell the real estate directly from the statute.® The statute provided that in case of tlie absence, inability, or interest of the county judge, the county clerk should fill his place, and that " the record of the proceeding must show the fact and the cause " of such substitution. The county clerk, acting as judge, signed the tax warrant, and the record did not show the absence, inability, or interest of the judge. It 1 Met. (Mass.) 328; Upton v. Holden, 5 id. 360; Van Rensselaer v. Wit- beck, 7 N. Y. 517; but see Parish v. Golden, 35 id. 462, 465. 1 Van Wagenen v. Brown, 26 N. J. L. 205, 206 (1857); see Stephens V. Wilkins, 6 Pa. St. 260 (1847). 2 Vide Chap. IV. Burgess v. Pue, 2 Gill (Md.), 11; Hartley v. State, 3 Ga. 233. * Commonwealth v. Philadelphia County Commissioners, 1 Serg. & R. (Pa.) 382; Blake o. Sturtevant, 12 N. H. 5^7; Schlencker v. Risley, 4 111. 483. * Keith v. Freeman, 43 Ark. 296 (1884). « Westhampton ». Searle, 127 Mass. 502 (1879). • Rhodes v. Sexton, 33 Iowa, 540; Parker v. Sexton, 29 id. 421; Sully V. Kueh], 30 id. 275; Johnson v. Chase, Id. 368; see also Hurley v. -Powell, 31 id. 64. 303 § 332 OP THE AUTHORITY TO COLLECT THE TAX. was held by a divided court that this did not invalidate the war- rant.^ A county treasurer, when called upon to issue a war- rant forM;he collection of taxes, may show in defence jurisdic- tional defects in the assessment, but not mere irregularities.^ § 332. Antbenticatioii. — Not only must the authority to col- lect be made by aad delivered to the proper legal officer, but the copy, invoice, or abstract of the assessment roll, or the warrant to collect, must be duly authenticated, with a view to their iden- tity as official documents.^ The statute of North Carolina re- quired the clerk of the county court to record the annual return of delinquents, and to deliver to the sheriff a fair and accurate copy of tlie returns, in alphabetical order, designating in such copy the separate amount of taxes accruing from each species of property, and extending the aggrega!te due from each indi- vidual. In Den d. Kelly v. Craig * the plaintiff claimed title to the premises in question, under a tax sale held in Septem- ber, 1838, on unlisted land for the taxes of 1836. To pi"ove the liability of the land for the double tax, because it was not listed by the owner, the sheriff produced a book, which he swore had been delivered him by the clerk, as the copy of the tax list returned to the court, on which he was to collect the tax for that year. To that book the defendant objected, be- cause it was not authenticated as a copy of the tax list by a certificate of the clerk or otherwise. The evidence was ad- mitted, and upon inspection it appeared that the land in controversy was not contained in the copy furnished by the clerk to the sheriff, but it had been entered in another part of the book by the sheriff himself as property not listed by the owner, and liable to double tax. The plaintiff, then, to prove the amount of the double tax, offered the sheriff to prove that in 1837 he saw, either in the clerk's office the original tax list, or in the hands of his own predecessor a paper pur- porting to be a copy of that tax list, made out by the clerk, in which the lot in question was listed by the owner ; but whether 1 Corbin v. Hill, 21 Iowa, 70. « People V. Halsey, 53 Barb. (N. T.) 547. » See § 865. Chase v. Sparhawk, 22 N. H. 134. * 5 Ired. (N. C.) 129. 304 AUTHENTICATION. § 333 it was the original or a copy he was uncertain. The clerk's office was burnt in 1840, and the original tax list had not been seen since that event took place. Upon this evidence the court instructed the jury that they must be satisfied that the document testified to was the list of taxable property for 1836, or they would disregard it ; but if they were so satisfied, it was immaterial whether the list was the original, or the record thereof by the clerk, or an official copy, as either was sufficient. A verdict was found for the plaintiff, and a judg- ment rendered thereon, from which the defendant appealed. The jijdgment was reversed. In delivering the opinion Chief Justice Ruffin said : " The tax list is the warrant of the sheriff to collect the taxes, and it should be authenticated by the offi- cial certificate of the clerk as a true copy of the original list, filed and recorded in his office. The list ought to be so authen- ticated as not only to satisfy the sheriff that it is a copy of the original, but also appear upon inspection, to the citizens, to be official evidence of their liability. It would seem of necessity that a mere copy of the list, not purporting to state what it is, nor whence it comes, nor by whom made, would not answer the purposes intended by the legislature, but that the nature of the document should be stated under the hand of the clerk at least; but at all events it was not sufficient here, as it was not authenticated by either the certificate of the clerk or by the oath of a witness as a copy ; nothing more appearing but that the clerk delivered the book to the sheriff, and said it was a copy." § 333. Time of Delivery. — Where the statute requires the list to be delivered to the collector on or before a given day, a delivery afterwards confers no authority upon the officer to proceed and collect the taxes.^ So where a day is fixed for the delivery, and it is delivered before the time arrives, the collector has no authority ; for up to the time fixed for delivery the taxpayer has a right to inspect the list, with a view to the correction of errors in the assessment. Besides, the authority of the collector being special, it does not attach until such time as the law fixes for its commencement. 1 Cardigan Proprietors v. Page, 6 N. H. 182. ' VOL. I. — 20 305 § 334 OP THE AUTHORITY TO COLLECT THE TAX. § 334. Other Reciuiremeiits. — A statute of New Hampshire required a copy of the invoice, from which the assessment was made, to be recorded or left in the town clerk's office. This was omitted ; and it was held that until this requirement was complied with it was illegal to proceed in the collection of the taxes,^ The statute of Vermont required a recital of the title, and time of passing the act under whioh the tax was levied, in the warrant to collect; where the tinje was inisrecited, the warrant was held void.^ 1 Cardigan Proprietors o. Page, 6 N. H. 182. s Brown v. Wright, 17 Vt. 97. 306 CHAPTER VIII. OP THE DEMAND OP THE TAX. § 335. Summary of the Subject. — It may be laid down as a universal rule in the collection of a tax assessed upon the land of resident owners, that the person oi- personal estate of the delinquent is the primary fund out of which the tax must be paid. A sale of the land itself is a dernier resort, and the tax is never so far regarded as a debt, in order to charge the body or goods of the person against whom it was assessed, until a demand has been made, upon the person taxed, by the collector ; ^ wherefore the necessity of a demand.^ The principles to be extracted from all of the decisions upon this subject may be thus stated : 1. Where the statute under ■which the proceeding takes place expressly requires a notifi- cation and demand, the requisition must be complied with.^ 2. Where the statute does not expressly require a demand of the tax, but authorizes the collector to appoint a time and place for the payment of the taxes upon his list, and give general notice thereof by publication in a newspaper, or by posting the notice in some public place, a personal notice may be dispensed with. A failure to comply with the requirement of the law in this respect will render a sale of land for taxes void.* 3. Where the statute is silent upon the question of 1 Bott B. Perley, 11 Mass. 169; Bonnell v. Roane, 20 Ark. 114; Green v. Craft, 28 Miss. 70; Rathbun v. Acker, 18 Barb. (N. Y.) 393. " § 336. 8 St. Anthony Falls Water Power Co. v. Greely, 11 Minn. 321, 325. In this case, under a statute making publication of notice equivalent to a personal demand, where there was no publication and no demand, the sale was held void. See, however, Greene v. Lunt, 58 Me. 518. * Johnson v. Mclntire, 1 Bibb (Ky.), 295 ; Thompson v. Rogers, 4 La. 9; Parker v. Rule's Lessee, 9 Cranch (U. S.), 64; Jackson d. Cook v. Shepard, 7 Cow. (N. T.) 88; Burd v. Ramsay, 9 Serg. & R. (Pa.) 109 ; Thompson v. Gardner, 10 Johns. (N. Y.) 404; Ives v. Lynn, 7 Conn. 505; Mayhew v. Davis, 4 McLean C. C. (U. S.) 213. 307 § 335 OP THE DEMAND OP THE TAX. notice and demand, it must be construed according to the principles of natural justice, which enjoins a personal demand before the person assessed can be regarded as in default. But it is not always necessary that there should be any de- mand or resort to the personalty.^ The mere assessment of a tax upon land does not create a debt against the owner. It cannot be garnished, attached, or seized in execution at the suit of a creditor of a municipal corporation.^ Nor is it a " judg- ment or contract " ^ which may be set off against the claim of a creditor of a city, within the meaning of the Massachusetts statute.* In the absence of any statutory provision allowing interest, it does not draw interest, even after a demand.^ The weight of authority is to the effect that a tax is not a debt, and cannot be collected by suit unless the law so pro- vides, (1) expressly or (2) impliedly, as by levying or pro- viding for the levying of a tax, but omitting all mention of any method of collection.^ But in State v. Railroad Company it was held that even where a statute provided for the assess- ment of omitted property and pointed out a specific method of collection, still the collector could bring suit. The court said: " The general rule is that where a statute creates a right aud points out a mode of enforcing that right, the mode pointed out is ordinarily exclusive ; but the acts under consideration do not create a new right. They merely provide for the en- forcement of an existing right, that all property shall bear its 1 See § 277. ^ Egerton v. New Orleans Third Municipality, 1 La. Ann. 435. 8 See Bradley v. McAtee, 7 Bush (Ky.), p67 * Peirce v. Boston, 3 Met. (Mass.) 520; Camden v. Allen, 26 N. J. L. 398. Where a town summoned as trustee was owing the defendant $112 for professional services, and at the same time there was a town tax against the defendant, unpaid, of $131.88, it was held that the town was not entitled to apply said tax upon said debt, and thus avoid being held upon trustee process. Johnson v. Howard, 41 Vt. 122; see also 7 Bush (Ky.), 667, 673; Webster i>. Seymour, 8 Vt. 140. ° Shaw V. Beckett, 26 Vt. 482. « Packard v. Tisdale, 50 Me. 377 (1862) ; Detroit v. Jepp, 52 Mich. 458 (1884); State v. Williams, 8 Tex. 384; Slack v. Ray, 26 La. Ann. 674; Ruddock u. Gordon, Quincy, .58; Territory u. Reyburn, MaCahon, 134; An- dover Turnpike v. Gould, 6 Mass. 4; Crapo v. Stetson, 8 Met. (Mass.) 393. 308 DEMAND OP THE TAX. § 337 equal burden of taxation, by directing the assessment of omitted property. When the assessment has been lawfully made, the tax stands like any other tax, as a debt, against the owner of the property, to be enforced either in the mode designated by the statute, or any other legal mode." ^ § 336. In Thompson v. Gardner^ which was an action of assumpsit by a collector to recover a tax assessed against the defendant, the plaintiff proved a regular assessment of the tax, but failed to prove that he had ever demanded it of the defendant. The court gave judgment for the defendant, say- ing : " A default in not paying on demand was necessary to be shown. It would be an alarming doctrine to say that a collector of taxes might sue immediately every person upon his assessment roll, without first demanding payment of the taxes." It would be equally alarming to permit the collector to seize and imprison the body, or distrain and sell the per- sonal estate, of a citizen against whom a tax has been assessed, without notifying him that the tax is due. and demanding the payment of it. The taxpayer must be in default before he can be regarded as a delinquent, and these summary and ex- traordinary powers with which the collector is armed are resorted to. He cannot be in default until he is notified of the tax, and has an opportunity of paying it. If, after a noti- fication is given and a demand made, he neglects or refuses to satisfy the tax, then the power of coercion attaches, and not before. A condemnation without a hearing, or an opportunity of one, would be contrary to natural justice ; and it ought not to be presumed that the legislature intended that the sum- mary power of collecting taxes by imprisonment of the body, and distress and sale of the goods or land of the person assessed, should be arbitrarily exercised by the officer charged with their collection. § 337. In Jones v. Burford ^ it was held that if a taxpayer once duly tenders payment of his tax, and the collector de- 1 14 Lea, 62 (1884). ^ 10 Johns. (N. Y.) 404. ' '26 Miss. 194. See also Seager v. Eearsage Mining Co. , 12 Jud.^Cir- cuit of Michigan, published in Report of Auditor-General of Michigan for 1873, p. xxxviii. 809 § 339 OP THE DEMAND OF THE TAX. clines to receive it because he has been enjoined by a court of chancery from collecting the taxes of that year, in a suit to which the taxpayer is not a party, if the injunction be subse- quently dissolved, the collector cannot proceed to sell the land without making a new demand for the tax after such dissolution of the injunction. § 338. In Ives v. Lyrm ^ it was objected to a tax aale that personal notice, or other reason able and sufficient warning of the assessment of the tax, had not been given, and that no demand of payment was made. The statute required the col- lector to appoint a time and place for receiving taxes ; and in case of failure, to distrain the goods of the delinquent. The contemporaneous construction of this statute, and long and universal usage under it, authorized a notice by publication on the sign-post of the town. It was proved that this usage had been complied with in this case, and the court maintained the § 339. Evidence of Demand. — Under the Illinois statute, the provisions of which have already been recited, it has been held that a report of the delinquent list by the collector to the Circuit Court, in the form prescribed by law, is evidence of a demand, and authorizes the rendition of a judgment upon the list, though the form is silent as to whether a demand was or was not made, and the collector failed to state the fact in relation to a demand.^ The contrary was held by Judge Pope, District Judge of the United States Court in Illinois, upon the construction of the same statute.* It is an open question under this statute, whether, on proof that no demand was in fact made by the collector, the sale can be sustained. The deed is not made evidence of a demand, but it has been generally supposed that the judgment would conclude the former owner. The deed need not recite a demand of pay- ment of the tax. That fact may be proved aliunde^ Where the charter of a city provides that demand of the city taxes 1 7 Conn. 505. = Taylor v. People, 7 111. 349; Job o. Tebbetts, 10 id. 376, 382. « Mayhew v. Davis, 4 McLean C. C. (U. S.) 213. * Gossett V. Kent, 19 Ark. 602. 310 EVIDENCE OP DEMAND. § 339 must be made a reasonable time before sale if the supposed owner could be found in the city, it was held that the deed was not conclusive evidence that such demand had been made, and that if it was shown by. parol that no such demand was in fact made (as by testimony of the defendant that he had lived in the city twenty-five years, knew the marshals of the said city, and that none of them had ever demanded the tax in question, no counter-proof being introduced) the deed was invalid.^ ' Lathrop v. Howley, 50 Iowa, 42 (1878). 311 CHAPTER IX. OP THE SEIZURE OF THE BODY, OR GOODS AND CHATTELS OP THE DELINQUENT, TO SATISFY THE TAX. § 340. Summary of the Subject. — When the law prescribes an order of remedies,^ it must be followed.^ The most com- mon provision is that resort shall first be had to the personal property of the taxpayer ; '^ but this rule is by no means universal among the States.^ The right to have the per- sonalty exhausted before selling the land is a personal right, of the violation of which the taxpayer alone can complain.* In Nebraska, since the act of 1877, a county treasurer may sell real estate without first exhausting the personal property of the land-owner.^ § 341. Order of Remedies. — Where the person against whom a tax has been legally assessed neglects or refuses to pay the tax voluntarily, after a notification and demand made by the collector in the manner prescribed by law, the necessi- ties of the State compel a resort to coercive means. In some States the law requires the body of the delinquent to be ar- rested and imprisoned in satisfaction of the tax.^ In one case last cited,' under a statute which required the body of a resident proprietor to be imprisoned until the tax was paid, and the land of a non-resident to be sold in satisfaction, it was held that an action for false imprisonment would lie against the tax-collector for seizing and imprisoning the body of a non-resident proprietor who came into the State > § 341. 2 §§ 342-344. » § 345. * Frost V. Elick, 1 Dak. Ter. 131 (1875). 6 Kittle V. Shervin, 11 Neb. 65 (1881). ' Bassett ». Porter, 4 Cush. (Mass.) 487; Daggett v. Everett, 19 Me. 373; Rising v. Granger, 1 Mass. 48; Appletou v. Hopkins, 5 Gray (Mass.), 530. ' Rising v. Granger, 1 Mass. 48. 312 OBDEH OF REMEDIES. § 341 for a temporary purpose. The evident intention of the law was to make the tax a charge upon the person of the resident and upon the land of the non-resident owner. In other States the law requires the tax to be collected out of the personal estate of the delinquent, if a sufficiency can be found to satisfy it. In South Carolina the statute thus marshals the remedies: (1) A distress of the personal estate of the delinquent ; (2) The sale of the land ; (3) The seizure and imprisonment of the body.^ A violation of the order of rem- edies thus prescribed invariably renders the act of the offi- cer illegal. It is the policy of the law to resort to the land itself only when all other remedies fail to enforce a satisfac- tion of the tax. The person or personal estate of the delin- quent is regarded as the primary, the land the dernier resort. The tax never becomes a charge upon the land until the other remedies have been exhausted. In this respect the power of the collector is limited ; the remedies prescribed, and the order in which they are directed to be enforced, are prerequisites, and must be as strictly complied with as any other requirement of the law, from the beginning to the end of the proceedings. The law admits of no substitution or change in the order thus established. It is therefore held that the land of the delinquent cannot be sold in those States which authorize imprisonment if his body can be found, nor can a resort be had to the land in States where the per- sonal estate is regarded as the primary fuiid, as long as a sufficiency of personal estate can be seized and sold in satis- faction of the tax.^ A sale of the land under such circum- stances is illegal and void.^ 1 Kingman v. Glover, 3 Kich. (S. C.) 27. 2 Seager », Kearsage Mining Co., 12 Jud. Circuit of Michigan, re- ported in Report of Auditor-General of Michigan for 1873, p. xl; Bowen V. Donovan, 32 Tnd. 379; Beatty v. Mason, 30 Md. 409, 416; Polk v. Rose, 25 id. 153, 160. ' Yancey v. Hopkins, 1 Munf . (Va.) 419, 437 ; Jackson d. Cook v. Shepard, 7 Cow. (N. T.) 88, 91; Gonverneur v. New York, 2 Paige (N. Y.), 434; Stead's Ex. v. Course, 4 Cranch (U. S.), 403; Parker v. Rule, 9 id. 64; Thatcher v. Powell, 6 Wheat. (U. S.) 119; Parker r. Smith, 4 Blackf. (Ind.) 70 ; Scales v. Alois,. 12 Ala. 617 ; Baltimore 313 § 342 OP THE SEIZURE OP THE BODY OB GOODS, ETC. § 342. The Personalty must first be resorted to.^ — A sale of real estate while the owner has sufficient personal property in the county out of which the taxes could have been satis- fied is void, and equity will enjoin the execution of a deed.'* So in Nebraska a failure of the county treasurer to exhaust the personal property of a delinquent renders a sale of his realty void. Equity will enjoin a sale for taxes if the owner has personalty out of which the taxes can be made.* A " rea- sonable search" must be made for personalty before there is any right to sell the land.* In Indiana land cannot be legally sold while the owner has leviable personalty within the county sufficient to pay his taxes ; and an injunction will be granted against such sale.^ A sale of land without a de- mand on the owner for personal property of which he has sufficient subject to levy and sale is void.^ And the fact that personal property was exempt from taxation does not exempt it from being taken for taxes.^ Diligent search must fail to V. Chase, 2 Gill & J. (Md.) 376; Dallam v. Oliver's Ex., 3 Gill (Md.), 445; Burd v. Ramsay, 9 Serg. & R. (Pa.) 109; Cox's Lessee t. Grant, 1 Yeates (Pa.), 164; Francis v. Washburn, 5 Hayw. (Tenn.) 293; Ham- ilton's Lessee v. Burum, 3 Yerg. (Tenn.) 355; Doe d. Gladney v. Deavors, 11 Ga. 79. See Hutchins t;. Moody, 37 Vt. 313; Catterlin v. Douglass, 17 Iiid. 213 ; Ellis v. Kenyon, 25 id. 134. Whether the three years' limi- tation law of Wisconsin would cure this defect, qumre. Parish v. Eager, 15 Wis. 532. See also Schseffer ti. The People, 60 111. 179, as to a judg- ment against land for a personal tax being unauthorized where the record does not show that the owner had removed from the county, or that the collector was unable to make the tax out of his personal property. ' Wilhelm v. Russell, 8 Neb. 120 (1879); Helms v. Wagner, 102 Lid. 385; Mich. Mut. L. Ins. Co. v. Kroh, Id. 515. « Morrison v. Bank of Commerce, 81 Ind. 335 (1882); Schrodt v. Deputy, 88 id. 90 (1882). 8 Johnson v. Hahn, 4 Neb. 139 (1875). * Stoudenmire v. Brown, 57 Ala. 482 (1876). 5 Abbott V. Edgerton, 53 Ind. 200 (1876); Volger v. Sidener, 86 id. 545 (1882); Catterlin v. Douglass, 17 id. 213; Bowen v. Donovan, 32 id. 379; Sharpe ». Dillman, 77 id. 284; Ring v. Ewing, 47 id. 246; Earle v. Simons, 94 id. 573 (1883); Ellis v. Kenyon, 25 id. 134; Cones o. Wilson, 14 id. 465. 6 McWhinney v. Brinker, 64 Ind. 360 (1878). ' Davis V. Minge, 56 Ala. 121 (1876). 314 PEHSONALTT FIRST. § 343 find personalty out of which the taxes can be made before a valid sale of the land can take place,^ and a proper affidavit of failure' to find personalty must be made by the collector ^ before proceedings can be instituted for sale of the land ; and an affidavit made after the proceedings have begun will not validate them. But failure in this regard will not prevent the sale from conveying to the purchaser the lien of the State.^ If no effort was made to first make payment out of the personalty of the owner, the sale is void* If personal property sufficient to pay the taxes is levied on, and lost solely by the^negligence of the sheriff, a sale of the land is void.^ § 348. The strongest ease upon this point is that of Scales V. Alvis.^ The statute of Alabama provided that " where the delinquent has no goods and chattels within the county, then the lands and tenements of said delinquent may be sold by the collector," etc. The facts were that the delinquent had a yoke of oxen in the county, of value sufficient to satisfy the tax, but they were exempt by law from execution for the debts of the owner. The court held the sale of the land void under these circumstances, and in their opinion say: " It will thus be seen that the power of the . collector to sell lands is limited to those cases where the delinquent has no goods and chattels within the county. There is no pro- vision for cases where the collector is unable to find, or the delinquent is unwilling to surrender, goods. The power exists only where there are no goods ; and conforming to the principle of the many cases on this subject, we are con- strained to decide that as there was personal property of the delinquent within the county, the collector had no dis- cretion to sell the land." In answer to the argument made in support of the sale, that the statute of the State exempted 1 Fleming v. McGee, 1 So. 106 (Ala. 1887) ; 81 Ala. 409 ; Wartensleben u. Haithcock, 1 So. 36 (Ala. 1887) ; 80 Ala. 565. * Simms v. Greer, 3 So. Rep. 423 (Ala.). « St. Clair v. McClure, 12 N. E. 184 (Ind. 1887); 111 Ind. 467; State V. Casteel, 11 N. E. 219 (Ind. 1887); 110 Ind. 174. « Wheeler v. Bramel, 8 S. W. 199 (Ky.). 5 Campbell v. Wyant, 26 W. Va. 702. « 12 Ala. 617. 315 § 344 OP THE SEIZtJRB OF THE BODY OR GOODS, ETC. the oxen from execution, the court held (1) That the statute did not in terms apply to a distress for taxes ; and (2) That the State, not being named in the act, was not bound by it. § 344. Under the statute of Tennessee, which required the collector, in case he could find no goods and chattels of the delinquent, out of which the tax could be made, to make report to the County Court, and apply for judgmeat against the land taxed, it was held that unless the fact affirmatively appeared upon the face of the record that the owner had no goods and chattels, the court had no jurisdiction to render a judgment against the land, and that a sale under such cir- cumstances could not be supported.^ The statute of Illinois provided that " when any person owning lands in any county in this State shall fail to pay taxes assessed thereon, and the collectors shall be unable to find any personal prop- erty of such person in his county, whereon to levy, of value sufficient to pay said taxes and costs, it shall be the duty of the collector to make report thereof to the Circuit Court of his county, at the first term in each year, for the preceding year or years, which report shall be in the following form : List of Lands and other Real Estate, situated in the Counly of , ani State of Illinois, on which Taxes retnain due and unpaid, for the Year herein set forth. I"! g ll i % h II > 1 ^ The law also required the collector to give notice of his in- tention to apply to said court for a judgment against the lands embraced in said report, by publication in a newspaper, 1 Francis o. Washburn, 5 Hayw. (Tenn.) 293; Hamilton's Lessee «. Barum, 3 Yerg. (Tenn.) 355; Thatcher ». Powell, 6 Wheat. (U. S.) 119; s. c. 5 Pet. Cond. 28. 316 PERSONALTY PIBST. § 345 etc., and he was also directed to file a copy of said advertise- ment, together with a certificate of the printer showing the due publication of the same. It was then made the duty of the court to hear and determine the application, in a sum- mary way, without pleadings, and unless some valid objec- tion was interposed by those interested in the list, to render judgment against said lands. Upon this judgment the clerk was directed to issue and deliver to the collector a precept commanding him to sell the lands against which judgment had been obtained as aforesaid. Upon the construction of this statute it has been held by the Supreme Court of Illi- nois, in two cases, one of which arose collaterally, and the other upon writ of error, to reverse the judgment; that where the coltfector makes a report in the form prescribed by the statute, it will be presumed that the delinquents re- ported had no personal property; that this presumption may be rebutted by proof, upon objection taken to the rendition of the judgment; but if the owner makes no de- fence, and suffers a judgment to be entered against the land, the judgment thus rendered becomes conclusive in all col- lateral actions, and cannot be impeached by showing that the report of the collector, in this respect, was false ; and on error the court will, by intendment, support the judg- ment where the record does not affirmatively show that the owner had goods.^ The contrary principle was maintained by Judge Pope in the United States Court for the District of Illinois.'' § 345. Prior Resort to Personalty not al-ways necessary. — Personal demand of the tax-debtor for personal property to satisfy the taxes is not necessary before sale of real estate in Connecticut.^ So in Georgia, under statutes authorizing 1 Taylor v. People, 7 111. 349 ; Job v. Tebbetts, 10 id. 376. 2 Mayhew v. Davis, 4 McLean C. C. (U. S.) 213. A recital in a col- lector's deed that, " not knowing of any personal property whereon to levy," he proceeded to levy on the real estate, is not a direct and satis- factory mode of reciting that sufficient personal property could not be found; but for the purposes of this case the recital was treated as suffi- cient to throw the onus on the owner. Jones v. MoLain, 23 Ark. 429. » Ives V. Lynn, 7 Conn. 512 (1829). 317 § 345 OF THE SEIZURE OF THE BODY OR GOODS, ETC. the issue, of tax executions which shall bind all the property of defendant, etc., and authorizing the levy, etc., of a tax upon all and every species of property, real and personal, etc., ib was held that the marshal is not bound to make an entry of " no personal property " before he can levy upon real property ; both are alike subject to levy.i Under the Iowa statute a tax deed is con- clusive evidence that the treasurer complied with his duty in endeavoring to collect the tax by distress and sale of personal property of the delinquent before selling the real estate.^ Under the act to incorporate the city of Washington, passed May 15, 1820, amended by the act of 1824, providing that real property, whether improved or unimproved, etc., may be sold for taxes, with this proviso, — that no sale "shall be made, etc., of any improved property whereon there is personal prop- erty of sufficient value to pay the taxes," etc., and providing further that the collector " shall have authority to collect the same by distress and sale of the goods and chattels of the per- son chargeable therewith," it is not a condition to the va- lidity of the sale of unimproved land for taxes that the personal estate of the owner should have been first exhausted by distress. The authority given to the collector by § 12, declaring that he " shall have authority to collect the tax by distress and sale of the goods of the person chargeable there- with," is not compulsory, but cumulative merely." In Mary- land, the collector may levy on and sell real estate, whether there is personal property on the premises or not.* In Mis- sissippi, under the statute providing that no tax sale shall be impeached except for fraud or mistake, in the assessment or sale, or on proof that the tax was paid prior to the sale, it is no defence to a bill to confirm a tax title, that no demand was made for personalty before selling the land.^ The personalty of non-residents cannot be taken in New York. The taxes 1 Smith V. Jones, 40 Ga. 39. * Stewart ». Corbin, 25 Iowa, 144. » Thompson v. Carroll's Lessee, 22 How. (U. S.) 422; and see Martin V. CaiTon, 26 N. J. L. 230. • Dyer v. Boswell, 39 Md. 465 (1873). s Bell V. Goto, 54 Miss. 538 (1877); Virden v. Bowers, 55 id. 2 (1877). 318 PERSONALTY FIRST. § 345 are to be collected out of the land, and that only, if the owner neglects to pay.^ If land has been forfeited to the State, an uncollected judgment for the taxes against personal property will not prevent sale of the land.^ 1 N. Y. & Harlem R. Co. o. Lyon, 16 Barb. (N. Y.) 651 (1853). 2 Berwin v. Legras, 28 La. Ann. 352 (1876). 319 CHAPTER X. OF THE RETURN OF THE DEUNQ0BNT LIST. § 346. General Statement. — When the law requires a re- turn of the delinquent list, it must be done by the proper ofl&cer, to the proper ofl&cer (de jure or de facto), at the proper time,^ properly yerified and sworn to,^ and in proper form sub- stantially ; the omission of the dollar mark will not vitiate the proceedings when the meaning is clear .^ In several of the States, as heretofore remarked, the power to collect the tax, and the power to sell the land in case of non-payment, is vested by law in different officers.* When such is the case, the statute usually requires the collector to return a list of delinquents to his superior, in a certain prescribed form, au- thenticated or verified in a particular manner, and within a limited time. When such is the requirement, it is regarded as imperative, and not directory, and an exact compliance is demanded.* Under an act requiring a return of aU taxes which remain " delinquent and impaid," a return of a list of taxes which remain " delinquent or unpaid " is defective, and confers no authority to sell the lands for such tsixes ; ^ and a certificate attached thereto, " that the foregoing is a true and correct list of all lands sold by and forfeited to the city of St. Anthony for unpaid taxes, and of all taxes levied and assessed in said city remaining delinquent and unpaid," etc., " as stated in said list and return hereinbefore written," did not cure the 1 § 349. « §§ 347, 348. » § 350. « Ante, Chap. VH. s See Hill v. Mason, 88 Me. 461 ; Huntington v. Brantley, 33 Miss. 451; Pitts V. Booth, 15 Tex. 453; Hopkins v. Sandige, 31 Miss. 668; Seager v. Kearsage Mining Co., 12 Jud. Circuit of Michigan, reported in Auditor-Greneral's Report, 1873, p. xl. « St. Anthony Falls Water Power Co. v. Greely, 11 Minn. 321. 320 GENERAL STATEMENT. § 346 defect in the return.' A collector's return to the treasurer is insufficient if it is not stated, either in the list or the affidavit annexed, that the figures are taken from the assessment roll, or that the simis claimed to be due are for unpaid taxes as- sessed against the property described.^ In Ohio, the auditor must note in a marginal column of the delinquent list the several reasons assigned by the treasurer for failure to collect the taxes ; and failure to follow the law in this respect is fatal.^ Upon the same principle, if the law requires the tax collector, after a sale, to return the certified list furnished by the regis- ter of lands, with a note to each tract or lot showing the disposition made of it, — if sold, to whom, and the amount paid by the purchaser, or if not sold, the amount for which it was offered for sale, and . bid in for by the State, — this return is essential to a deed by the register ; and if the collector merely write against a tract a person's name, this does not fulfil the law, and the register's deed, based upon such a return, is invalid. And although the purchaser could not control this omission, he nevertheless buys subject to all the requirements of law.* The collector's return may be made by law prima facie evidence that all the requirements in assessing and levy- ing the taxes, etc., have been complied with.^ The return is good evidence of delinquency, — of the fact that a demand was made by the collector upon the person against whom the tax was charged, and that the body of such person could not be found within the district of the collector ; or that the de- linquent had no goods and chattels within the district out of which the taxes could be made. Besides, the return is the foundation of the authority of the superior — to whom it is required to be made — to sell or order a sale of the land of the delinquent.® If the officer to whom the return is made is the person to whom the power of making the sale is in- 1 St. Anthony Falls Water Power Co. v. Greely, 11 Minn. 321. 2 Thompson ». Burhaus, 61 N. Y. (1874). » Stambaugh v. Carlin, 35 Ohio St. 215, 216 (1878). * Donohoe v. Hartless, 33 Mo. 335. « Burbank ». Rumsey, 90 HI. 554 (1878); Mix v. People, 81 id. 118 (1876) ; Pike v. People, 84 id. 80 (1876). « Lewis v. Disher, 25 Wis. 441. VOL. I. — 21 321 § 3-47 OP THE RETURN OF THE DELINQUENT LIST. trusted, the return constitutes his authority to sell ; if he is directed to issue a warrant or order to some third person to make sale of the lands embraced in the delinquent list, the return is the basis upon which he issues the order or warrant. Such was the requirement in Illinois, Ohio, Vermont, New York, and New Hampshire.^ A neglect, therefore, to make this return in the form, manner, and time prescribed is fatal to the validity of a tax sale. § 347. Attestation. — The Ohio statute required that the return should be attested by the oath of the collector. In Harmon's Lessee v. Stockwell '•^ the return was sworn to be- fore the county auditor, and it was contended that the audi- tor had no authority to administer the oath, and therefore the sale was void. The court sustained this position, say- ing : " As the penalties of perjury were intended to be im- posed for a false return, it is clear that the oath must be administered by competent authority. If the auditor at that time possessed no such power, the list wants an essential requisite which invalidates the sale. The power to administer an oath is incidental to no ofiBcer except the judicial. It must be conferred by statute, either directly or by implication, or ministerial officers do not. possess it." The court then pro- ceed to examine the statutes of Ohio relative to the powers and duties of county auditors, and thus conclude : " We there- fore find no authority in any of the statutes enabling the au- ditor to administer oaths, except in certain specified cases, and the instance before us is not one of them. The grant of authority in those specified cases sufficiently implies that he possessed it in no others. The return of the collector, there- fore, was not made under the securities and sanctions which the law required ; and this omission is fatal to a title held 1 Revised Laws Illinois, 1833, p. 524, § 3, and p. 528, § 1; Messen- ger V. Germain, 6 111. 631; Harmon's Lessee v. Stockwell, 9 Ohio, 93; Hannel's Lessee v. Smith, 15 Ohio, 134; Doe d. Mix v. Whitlock, 1 Tyler (Vt.), 305; Winder's Lessee v. Starling,? Ohio, Pt. 2, 190; Jack- son d. Clarke v. Morse, 18 Johns. (N. Y.) 442 ; Tallman v. White, 2 N. Y. 66; Homer v. Cilley, 14 N. H. 85. 2 9 Ohio, 93; see Ward's Lessee v. Barrows, 2 Ohio St. 241, 245. 322 ATTESTATION. § 349 under such strict principles as a tax sale, and supersedes the necessity of looking further into the case." § 348. Under another statute of Ohio the county treasurer was empowered to collect the taxes ; and in case he was un- able to do so, he was required to make a return of the delin- quents to the county auditor, and to sign and testify to. its correctness under oath or affirmation to be administered by the county auditor. The county auditor was required to make a complete record of this return. In Miner's Lessee V. McLean ^ the record offered in evidence did not show affirmatively that the oath had been taken by the treasurer, but a certified copy of the return contained the oath. The sale in question was held void, because the oath was essential to the validity of the return, and it must appear upon the record ; no inferior evidence being admissible for the purpose of supplying the defect. In Illinois, a return of the delin- quent list to the Circuit Court constitutes the authority of that court to enter judgment against the delinquent list.^ So in Tennessee ^ and Ohio.* Under a statute requiring an oath to be taken by a collector of taxes on returning lands on which the taxes have not been paid, the statute reading as follows, " And upon making oath before the county treasurei*, or, in case of his absence, before any justice of the peace," etc., and under another statute providing "that the county treasurer may appoint a deputy, who, in the absence of the treasurer from his office, or in case of a vacancy in said office, may perform all the duties of the treasurer," it was held that the oath may be administered by the deputy county treasurer in the absence of the treasurer from his office.^ Failure by the township treasurer to subscribe and swear to the list of delinquent taxes will avoid a sale for such taxes.® § 349. The Delinquent List must be filed at the Proper Time. — Filing the delinquent list before the expiration of the term 1 4 McL. (U. S.) 138. 2 Spellman v. Curtenius, 12 H]. 409. 8 Thatcher v. Powell, 6 Wheat. (U. S.) 119. * AVilkins v. Huse, 9 Ohio, 154. * JIalony v. Mahar, 1 Mich. 26 ; s. c. 2 Doug. (Mich.) 432. « Seymour v. Peters, 35 N. W. 62 (Mich. 1887). 323 § 350 OP THE EETDBN OP THE DELINQUENT LIST. for payment of iaxes avoids the sale.^ Making out the list and notice after the statute term, but in season for proper publication, is immaterial defect.^ § 139, ch. 107, Comp. Laws of 1879, provides that no mere irregularity nor any failure to perform a duty on the day specified shall invalidate the pro- ceedings or the deed. If the return of the delinquent list is required to be on the first Monday of December, a return on the third Monday will not be sufficient. Failure by the col- lector was made felony, and the act allowed the board of supervisors to extend the time five days for cause, but no longer. The court remarked that these provisions showed the rigidity of the requirement as to the return at the proper time. The object was to let taxpayers know the exact time when proceedings of forfeiture against their lands, of which this return is the initiative, will be commenced. The court further said that if in response to the citation that was served on him before sale the owner could have shown this defect in the proceedings, perhaps he might be debarred from raising the objection afterward ; but the law expressly provides that he is only allowed to pay or show payment in answer to the said summons. Wherefore the defect named above must be adjudged fatal to the tax title.^ In the absence of contrary evi- dence the presumption is that the collector did his duty, and filed the delinquent list at the proper time.* So where a town levies a park tax it will be presumed that the park commis- sioners made the required estimate.^ § 350. Omission of the Dollar Mark.® — .Where a delinquent list contained the figures " 5,68 " in a column headed " Tax interest and cost," and opposite the land by no dollar mark or other character to indicate the meaning of the figures, the deed was held good. The first sheet of the list was marked 1 Hickman v. Eempner, 35 Ark. 505 (1880); Bailey v. Haywood, 38 N. W. 209 (Mich.). " Stout V. Coates, 35 Kan. 382 (1886). » Weir V. Kitchens, 52 Miss. 76 (1876). * Mix V. People, 81 Ul. 119 (1876). 6 Pike V. People, 84 111. 80 (1876). See §§ 294, 360. 324 OMISSION OF THE DOLLAB MARK. § 350 " f & cts." ^ At the head of the tax column in the published list was a dollar mark, and the last two figures of each amount were separated from the others by a wide space, but there was no decimal point or vertical line. The designation of the amount ia dollars and cents was, however, held suffi- ciently clear.2 » Raley v. Guinn, 76 Mo. 263, 273 (1882). * Collins V. Welch, 35 N. W. 566 (Minn.). 325 CHAPTER XI. OP THE PROCEEDINGS WHERE A JUDICIAL CONDEMNATION IS REQUIRED. § 351. Summary of the Subject. — Where the law requires a judgment against the land as a precedent condition to a sale for taxes, the requirement is imperative. In general such judgment cannot be impeached collaterally, except for want of jurisdiction.^ All facts necessary to give jurisdiction must exist,^ and must appear on the face of the record.^ Due notice of the proceedings must be given,^ and the judgment must follow the statute form and be clear and certain ; for example, an omission of the $ mark in the colunm of amounts may vitiate the proceedings.* In § 361 the law of Ohio is noticed, and then the laws of Illinois, relating to judicial pro- ceedings in tax collections, and their requisites and effect are very fully considered, together with the decisions construing these statutes.^ In § 352 we have grouped a few points not conveniently falling under any large head. Evidence dehors is inadmissible to show jurisdiction ; the record is to be tried by itself, — e.g., it must disclose that it was rendered at the proper time, must show the location of the land by suffi- ciently definite description, the fact of demand (where possi- ble), constructive notice that the taxes were in default, etc. The judgment must show the amount of the tax for which it is rendered. In some States a complete statement of the evi- dence on which the court claimed jurisdiction must be set out. When the judgment sets forth facts sufficient to found juris- diction, the truth of these facts may be assailed, the question 1 § 353. 2 § 354. s § 359, 4 § 36O. 6 §§ 362-395. See § 362 for summary. 326 GENERAL STATEMENT. § 352 of jurisdiction may always be raised ; but if the jurisdiction is sustained, the judgment is conclusive on parties and privies in all collateral proceedings, and cannot be attacked because it fails to follow the statute form, or even though it contains an irregularity or informality that would be fatal on appeal. § 352. General Statement. — In some States the collection of taxes is required to proceed through civil suit.' In Maine, this remedy is added to those before in existence.^ In Illi- nois, a city collector cannot make sale of real estate for taxes. The sale must be by some general officer of the county having authof ity to receive State and county taxes, upon the order or judgment of some court of record.^ Under the new constitu- tion of Illinois, § 4 of Art. 9, providing that " the general assembly shall provide, in all cases where it may be necessary to sell real estate for the non-payment of taxes or special assessments for State, county, municipal, or other purposes, that a return of such unpaid taxes or assessments shall be made to some general officer of the county having authority to receive State and county taxes, and there shall he no sale of the said property for any of said taxes or assessments hut hy said officer, upon the order or judgment of some court of record," it was held that this provision prohibited the court from rendering judgment for the sale of real estate for such taxes on the application of any person but the general county offi- cer named, and that no other (in this case the city collector) but him could make the sale.* The legislature may or may not make use of judicial forms or judicial tribunals in the collection of taxes, as shall seem convenient ; ordinarily no judgment of a court is required from the beginning to the end of the process, and if a judicial agency is used, it is not because such mode is required by any provision of the consti- tution, but merely because it is deemed proper and expedient.^ 1 Alexander v. Helber, 35 Mo. 334 (1864); Carlin v. Cavender, 56 id. 286 (1874); People ». Otis, 74 111. 384 (1874). 2 York V. Goodwin, 67 Me. 260 (1877). » Webster v. Chicago, 62 111. 303 (1871); Const, of 1870, Art. 9, § 4. * Hills V. Chicago, 60 111. 86. * Matter of Trustees N. Y. Prot. Episc. Public School, 31 N. Y. 580 (1861). 827 § 353 PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. The proceeding is in rem, the judgment is against the land for the amount due on it, and it is error to render a personal judgment.^ Interest on taxes cannot be included in a judg- ment for them unless by authority of statute or ordinance.^ § 353. The Judgment cannot in general be attacked collat- erally except on the ground of want of jurisdiction ; this defect can always be taken advantage of. In Illinois, how- ever, if the judgment was by default it may be collaterally impeached.^ It is a familiar principle that a judgment is conclusive upon parties and privies, where the court had jurisdiction to render it.* Unless such jurisdiction exists, the judgment is a nullity, and may be impeached collaterally.^ This jurisdic- 1 Pidgeon v. Illinois, 36 lU. 251 (1864). " Edmonson v. Galveston, 53 Tex. 161, 162 (1880). ^ See last case in this section. * That after judgment in rem against the land it is too late to complain of errors in the assessment, see Daily v. Newman, 14 La. Ann. 580 ; so after decree to foreclose right of redeeming from tax sale unless collusion or fraud is shown : McGahen u. Carr, 6 Iowa, 331 ; nor can a judgment be attacked collaterally by showing that tax has been paid. Cadmus v. Jackson, 52 Pa. St. 295; Wallace v. Brown, 22 Ark. 118. * Brown v. Hogle, 30 111. 119. When the judgment in a tax suit (m rem and against the owner in personam) recites that all owners and claim- ants of property have been duly summoned to answer the complaint, and have made default, the judgment in this respect cannot be impeached in a collateral action, although it appears that the name of one of the own- ers was omitted in the published summons. . Reily v. Lancaster, 39 Cal. 354 ; see also Eitel o. Foote, Id. 439 ; Truman v. Robinson, 44 id. 623. As to service of summons, return of seivice and judgment in tax suits, see GiUis v. Barnett, 38 Cal. 393 ; People v. Fox, 39 id. 621 ; Tru- man V. Robinson, 44 id. 623 ; Reeve v. Kennedy, 43 id. 643, 652. A judgment for taxes against public property of the State is coram non judice and void. People v. Doe G. 1,034, 36 Cal. S20. So a judgment rendered before the time for payment of the tax has expired is void. Williams ». Gleason, 5 Iowa, 284; Scott v. Babcock, 3 Greene (Iowa), 133, overruling Noble v. State, 1 id. 325. Under a statute providing that the land shall be assessed to the owner if known, and if not to the "un- known owner," and that if the tax is not paid, suit shall be commenced against the person assessed, the land itself, and " all owners and claim- ants," if the proceedings conform to the statute in the assessment bring- ing of suit and summons, the judgment is conclusive against all the 328 THE JUDGMENT. § 353 tion must extend to the parties as well as to the suhject- matter. True, authorities may be found which advance the position that a judgment of a court of general jurisdiction cannot be questioned in a collateral action for want of juris- diction over the parties ; ^ but this doctrine seems to be at war with the fundamental principles of our institutions. There is no such thing as unlimited power in this country, and no power which can be exercised arbitrarily. No such principle exists as that the courts can do no wrong. The acts of every tribunal acting under the authority of law may be questioned and tried by the law of its organization. The legislature itself is limited by the Constitution, Judicial power can rest upon no broader foundation. No man shall be condemned without notice and an opportunity of being heard. Such is the mandate of the Constitution. If courts may disregard this provision, it is impossible to perceive what plausible reason can be urged against the validity of an act of the legislature divesting a man of his estate or depriving him of his liberty. The great objection to such legislation is that it is ex 'parte. If the courts can thus proceed without notice, why may not the legislature ? It is a simple choice of tyrannies. If such a principle once gains a foothold, the dominion of a mob would be a merciful substitute for such a power. The only reason why a judgment is regarded as conclusive, is that an end may be put to litigation. Public policy demands repose under such circumstances ; but there is neither justice nor sound policy in closing the courts against one who has never litigated his rights or had an world; but if the action is not brought against " all owners and claim- ants," and service is not made on the land, the judgment is void. Mayo B. Ah Loy, 32 Cal. 477. That a judgment for taxes which is both per- sonal and against the land is a debt within the legal tender act, see Rhodes e. O'Farrell, 2 Nev. 60. * 2 Amei'ican Leading Cases, 737. The validity of a judgment in a tax suit is tested by the same rules as a judgment in an action of any other class. It cannot be impeached collaterally by proof of a defective assessment roll. Eitel ». Foote, 39 Cal. 439. So the principles applica- ble to other judicial sales are applicable to tax sales in California. Jones V. Gillis, 45 Cal. 541. 329 § 353 PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. opportunity of doing so. An estoppel is regarded as odious, because it shuts out the truth ; but it would be the essence of injustice to maintain an estoppel against one who has been passive, without knowledge of any necessity for action. The law of rehearings, reviews, and new trials is opposed to this doctrine, and strongly, too; for that law presupposes a no- tice and hearing, but opens the litigation because injustice may have been done to the party complaining. Therefore to constitute a valid judgment it must have been rendered by a tribunal having jurisdiction over the subject-matter of the litigation, and over the parties to it. A court has jurisdic- tion of the subject-matter where by law authority has been conferred upon it to hear and determine the particular cause of action in controversy between the parties ; and it has juris- diction over the person of the defendant when he voluntarily appears to the action, or has been actually served with process, or has had constructive notice of the pendency of the suit, in the manner prescribed by law. In Minnesota, the law pro- vides that the facts that the land is exempt or that the tax has been paid are defences in proceedings to collect taxes when " made to appear by answer and proofs ; " and it has been held under this law that such facts do not go to the jurisdiction of the court.^ In this case the land had been sold and the time for redemption had expired, the owner applied for an order to open the judgment by default under which the land was sold, and for leave to answer and defend. The lower court granted the order, but in the Supreme Court it was reversed. The decision in Chauncey v. Wass ^ is to the same effect, but there is a powerful dissent by J. Vander- burg, who claims that the fact of delinquency is essential to jurisdiction. In Illinois, if the owner appears, files objections, and contests the liability of his land for the tax claimed, sets up want of notice, or other essential defect, the judgment against the land will be conclusive against the owner in any collateral proceeding, as on a bill to set aside the deed as a 1 Chicago County v. St. Paul & D. R. Co., 27 Minn. 109 (18S0). « Superior Court, Minn., Dec. 1886, 30 N. W. Kep. 826; see Knoll v. Woelken, 13 Mo. App. 275 (1883). 330 SPECIAL JURISDICTION. § 354 cloud ; but a judgment by default in the county court under the statutes for the collection of taxes on land, by sale of the property, is not conclusive, and may be collaterally impeached. The general rule that forbids collateral attack on the decrees of a court having jurisdiction of the subject-matter and the parties has no application here.^ § 354. The facta that give jurisdiction must appear on the record, for a court acting in tax proceedings always acts as a court of special jurisdiction, and this rule clings to all proceedings under special jurisdiction, and distinguishes them from, proceedings under general jurisdiction. The difference between courts of general and those of special jurisdiction is this : to support the act of the former, it is not necessary that the facts and circumstances which justify its action should appear affirmatively upon the face of its record ; it will be presumed that they existed, whether the validity of the judgment is questioned collaterally, or upon writ of error.2 On the other hand, where the court is one of special jurisdiction, the facts upon which that jurisdiction de- pends must affirmatively appear upon the face of its record ; and some of the cases go further, and hold that those facts must appear at large, and not by way of recital.^ When it is shown that a court of general jurisdiction had no authority in fact to hear and determine the cause, and when the record of the special tribunal fails to show upon its face that au- 1 Gage V. PumpeUy, 115 U. S. 458-463 (1885); Riverside Co. v. HoweU, 113 ni. 259; Gage v. Bailey, 102 id. 11; BeUeville Nail Co. v. People, 98 id. 899 (1881); Graceland Cemetery Co. v. People, 92 id. 619. " Grignon's Lessee v. Astor, 2 How. (U. S.) 319; Doe d. Obert v. Hammel, 18 N. J. 73 ; Kempe's Lessee v. Kennedy, 5 Cranch (U. S.), 173; Raymond!). Bell, 18 Conn. 81, 87, 89; Propst v. Meadows, 13 HI. 157, 168, 169; Kenney v. Greer, 13 id. 432; Foot v. Stevens, 17 Wend. (N. Y.) 483; Peacock v. Bell, 1 Saund. 73; Hart v. Seixas, 21 Wend. (N. Y.) 40; Voorhees v. U. S. Bank, 10 Pet. (U. S.) 449; Young v. Lorain, 11 III. 624, 636, 639; Wyman v. CampbeU, 6 Porter (Ala.), 219, 236, 243; Doe d. Graeter v. Wise, 5 Blackf. (Ind.) 402; M'Uvoy v. Speed, 4 Bibb (Ky.), 85; Fridge v. State, 3 Gill & J. (Md.) 103; Van Wormer v. Albany, 15 Wend. (N. Y.) 262; Paine's Lessee v. Mooreland, 15 Ohio, 435,444, 445. ' Rex II. Croke, Cowper, 26. 331 § 355 PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. thority, the act of each is a nullity, and will be so treated in all other courts and places where the validity of their judg- ments is drawn in question.^ § 355. When a court of general jurisdiction acts under special and summary powers derived wholly from statutes, its proceedings stand on the same footing as those of a court of limited and special jurisdiction. It is such a court for the time being, and everything necessary to give jurisdiction must appear of record. Everything will be presumed to be without jurisdiction which does not distinctly appear by the record to be within it. Jurisdiction being established, the usual presumption of regularity obtains as to the proceedings. If the record shows the jurisdictional facts actually or by de- termination of the court, their existence cannot be inquired into collaterally ; 2 and no collateral attack can be made upon the validity of a judgment because the petition failed to allege that the land had been returned delinquent, or had been forfeited to the State, or that the county clerk had made out a back tax book within the lawful time and delivered it to the collector, and that the land was contained in the book, and remained unredeemed, or because it appeared on the face of the petition that a portion of the taxes sued for and em- braced in the judgment were barred by the statute of limita- 1 Williamson v. Berry, 8 How. (U. S.) 495, 540, 541; Glass v. Sloop Betsey, 3 Ball. (U. S.) 7; Rose v. Himely, 4 Cranch (U. S.), 241; Elliott ». Peirsol, 1 Pet. (U. S.) 328; Wilcox v. Jackson, 13 id. 498; Shriver's Lessee v. Lynn, 2 How. (U. S.) 43, 59; Hickey v. Stewart, 3 id. 750; Rogers v. DiU, 6 Hill (N. Y.), 415; Latham v. Edgerton, 9 Cow. (N. Y.) 227; Horner !;. Doe d. State Bank of Indiana, Smith (Lid.), 10; 8. C. 1 Ind. 130; 2 American Leading Cases, 733, 736. 2 Carleton v. Washington Ins. Co., 35 N. H. 167 (1857); Gunn ». Howell, 27 Ala. 676 (1855) ; Reeves v. Townsend, 22 N. J. L. 396 (1850) ; Cooper V. Sunderland, 3 Iowa, 114 (1856); Paul t>. Hussey, 35 Me. 97 (1852); Comstock v. Crawford, 3 Wall. 396 (1865); Morse v. Presby, 5 Foster, 302 (1852); Ladbroke v. James, Willes, 199; Sollers ». Lawrence, Id. 416 ; Peacock v. Bill, 1 Wms. Saund. 73 ; Wheeler ». Cowen, 3 Wend. (N. Y.) 311; Bank v. Treat, 6 Shep. 340; Barrett v. Crane, 16 Vt. 246; Barnes v. Harris, 3 Barb. (N. Y.) 603; Kempe's Lessee «. Kennedy, 5 Cranch (D. S.), 173; People v. Koeber, 7 HiU, 39; Fox v. Hoyt, 12 Conn. 491 (1838). 332 • SPECIAL JURISDICTION. § 357 tions. Many defects may appear on the record that would be fatal on appeal, but are not open to collateral investigation.^ § 356. These general principles are applied to the records of judgments in tax proceedings. In Thatcher v. Powell,^ Chief Justice Marshall says, " In summary proceedings, where a court exercises an extraordinary power, under a special statute prescribing its course, we think that course ought to be exactly observed, and those facts especially which give jurisdiction ought to appear, in order to show that the pro- ceedings are coram judice." And it makes no difference whether this power is conferred upon a special tribunal created for the sole and only purpose of trying tax causes, or whether the power is superadded to a court of general com- mon-law and chancery jurisdiction. When this special power is conferred upon such courts, to be exercised in a summary way, they are treated in the exercise of this particular power as courts of special jurisdiction.^ § 357. In Indiana the rule is much more strict. Not only must the jurisdiction affirmatively appear, but the evidence upon which the court acted must be set forth at large in the record ; in other words, a complete record of all the tax pro- ceedings anterior to the judgment must be made and pre- served.* This is in accordance with the general principles applicable to summary proceedings ; ^ but it must be remem- bered that all of these cases were decided upon writs of error, and did not arise collaterally. The true rule undoubtedly is, that if the jurisdiction appears by recital or otherwise upon the record the judgment will be sustained, although the evi- 1 Wellshear v. Kelley, 69 Mo. 351, 353. *= 6 Wheat. (U. S.) 119. » Young V. Lorain, 11 HI. 624, 636, 687. * Dentler v. State, 4 Blackf. (Ind.) 258; Smith v. State, 5 id. 65; Wil- liams V. State, 6 id. 36. 5 Judson V. State, Minor (Ala.), 150, 153 ; Yancey v. Hopkins, 1 Munf. (Va.) 419; Bates v. Planters' and Merch. Bank, 9 Porter (Ala.), 376; Crawford v. State, Minor (Ala.), 143 ; Quarles v. Robinson, 1 Chand. (Wis.) 29 ; Harryman v. Titus, 3 Mo. 302 ; Zurcher v. Magee, 2 Ala. 253 ; Bates v. Branch Bank at Mobile, Id. 689 ; Brown v. Wheeler, 3 id. 287; Bettis v. Taylor, 8 Porter (Ala.), 564. § 357 PROCEEDINGS WHERE CONDEMNATION -IS REQUIRED. dence upon which they acted is not spread upon the record.^ The effect thus given to this class of judgments, where their jurisdiction is once established, is substantially the same given to a judgment rendered by a court of general jurisdiction proceeding according to the course of the common law. The reversal of such judgment will not defeat the title of a pur- chaser acquired while the judgment was in full force; and the judgment itself, so long as it remains in force, cannot be im- peached collaterally, unless it be absolutely void.^ The Indi- ana statute of 1832 required the collector to deliver to the school commissioners a description of the lands upon which taxes were due and unpaid ; and in case the owners failed to redeem the same within three years from the time of the de- livery of said lists, the law provided that they might be sold in such manner as the legislature might thereafter prescribe, for the benefit of the school fund. In 1885 an act was passed, prescribing the manner in which such lands might be for- feited, and vested in the State for the use of the said school fund. This statute required, among other things, that a list of the lands should be advertised, and that the notice should express that unless the taxes were paid by the next ensuing term of the Circuit Court, a motion would be made for a judg- ment of forfeiture, etc.^ In one case it did not appear that the notice of the motion contemplated had been given ; but the record recited that " the court was satisfied that all the proceedings required by law had taken place, etc." The court held that this recital amounted to nothing. The record must show what those proceedings were, in order that the ap- pellate court may have an opportunity to determine whether they were all that the statute required to give the Circuit 1 Chesnut v. Marsh, 12 HI. 173; Rogers v. Park, 4 Humph. (Tenn.) 480; McCarroll's Lessee v. Weeks, 5 Hayw. (Tenn.) 246; Taylor v. People, 7 111. 349. 2 Wilkins's Heirs' Lessee v. Huse, 9 Ohio, 154 ; Chesnut v. Marsh, 12 111. 173; Spellman v. Curtenius, Id. 409. " A notice by a collector of taxes under the Illinois statute of an appli- cation for judgment against delinquent lands which omits to state that an order of sale -will be applied for, is insufficient, and the subsequent pro- ceedings are void. Charles v. Waugh, 35 111. 315, 884 SPECIAL JURISDICTION. § 359 Court jurisdiction.^ And in another case the court hold that the proceedings required by law to take place anterior to the collector's return must also appear upon the record, as well as the notice of the motion.^ § 358. The Tennessee statute required the collector to make the money out of the goods and chattels of the person in whose name the land was listed ; if the owner failed to pay on demand, or had no goods and chattels, the collector was re- quired to report a list of the delinquents to the County Court ; tlie court was directed to cause an advertisement to be pub- lished in a newspaper, stating that application was made for a judgment against the lands, and upon the day named in the notice it was the duty of the court to render judgment upon the list. In the construction of this statute it has been de- cided that the- following jurisdictional facts must appear in the record, or the judgment will be a nullity, and no title can be acquired under it : (1) That the land was situate in the county where it was taxed and reported ; (2) That the owner liad no goods and chattels out of which the tax could have been made ; (3) That notice was given of the application in due form of law; and (4) That the taxes were due and unpaid upon the land.^ § 359. Notice of the Proceedings. — A legislative act pre- scribing notice to delinquents by advertisement in the official newspaper in lieu of a petition and citation is constitutional ; the form of citation and manner of bringing parties into court are entirely within the legislative control.* Proper notice is the very foundation of the right to sell the laud ; and if the law fixes a certain term as the one in which a court shall have jurisdiction to render judgment for taxes, and notice is given relating to another term, the subsequent 1 Dentler v. State, 4 Blackf. (Ind.) 258; Smith v. State, 5 id. 65. ^ Williams v. State, 6 Blackf. (Ind.) 36. » Thatcher v. Powell, 6 Wheat. (U. S.) 119; M'Clung v. Ross, 5 id. 116; s. c. 5 U. S. Cond. 602; Francis v. Washburn, 5 Hayw. (Tenn.) 293; McCarroll's Lessee ». Weeks, Id. 246; Campbell v. McTver, 4 id. 60; Anderson v. Patton, 1 Humph. (Tenn.) 369; Rogers v. Park, 4 id. 480; Hamilton's Lessee v. Burum, 3 Yerg. (Tenn.) 355. * Bond V. Hiestand, 20 La. Ann. 189 (1868). 335 § 361 "PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. deed is invalid.^ Failure of the collector to attach to the delinquent list the required affidavit, alleging among other things that due notice of application for judgment and sale had been given, renders the judgment invalid.^ § 360. Omission of the $ Mark held to vitiate the Judgment. — When the amount of a tax judgment is expressed only in numerals, without mark or reference to indicate what they represent, it is void for uncertainty, " In the column headed ' Total amount of Judgment ' there is no line or decimal mark separating the two right-hand figures in the column from the rest, as is usually the case, to distinguish cents from dollars, and by no legal intendment can any such effect be given to the greater intervening space found between them. 10 48 6 46 The inference as to the purpose and object of this space, if any, is purely one of fact, and not a pre- sumption of law."^ We think this decision clearly wrong ; the space is as clear as a dot would be, and the presumption is the same in both cases ; namely, a presumption of fact so clear as to be adopted by the law. In Randolph v. Metcalf ,* where under a statute prescribing the form of report and providing that no sale shall be deemed insufficient because the number of acres is not precisely named or the amount of taxes precisely given, but if the same is stated with cer- tainty to a common intent it shall be sufficient, the items required by the act, namely, the value of the property, amount of taxes, collector's fees, etc., were set out in figures without the amount of the taxes, costs, etc., and there was no use of the words " dollars " or " cents," and no abbrevia- tion mark, word, or character on the record of the judgment to indicate the amount of the taxes, it was held that the report and judgment and the sale based thereon were void. § 361. The Ohio statute of Jan. 30, 1822, authorized the rendition of 3, judgment by the Common Pleas Court, after 1 Spurlock V. Dougherty, 81 Mo. 172 (1883). 2 DufE V. Neilson, 90 Mo. 93 (1886). 8 Tidd V. Rines, 26 Minn. 209 (1879) ; see People v. S. F. Savings Union, 31 Cal. 135 (1866). * 6 Cold. (Tenn.) 400, 405. 336 ILLINOIS LAW. § 362 notice, upon the delinquent list, and declared the tax deed, made in pursuance of it, to be evidence of the regular- ity of the proceedings, and that the title thereby conveyed should not be " invalidated or affected by the reversal of such judgment, or any error therein, or by any error in the pro- ceedings previous to the rendition of such judgment, relating to the charging or collecting of taxes on such lands, or the obtaining of such judgment." The law further required that a list of the lands against which judgment was pronounced should be certified by the clerk of the court to the county auditor, together with an order of sale. The auditor was thereupon directed to give notice, and on the day named therein to proceed and sell the land, and make return of his proceedings to the court ; and it was made the duty of the court to approve the sale, if regular, and order a deed to be executed and delivered to the purchaser. In the construction of this statute it has been held that the prerequisites to a valid sale and conveyance were : (1) A judgment rendered by a court of competent jurisdiction ; (2) A precept to the county auditor directing a sale ; (3) Due notice of the time and place of sale ; (4) A sale in pursuance of such notice ; (5) A return of the proceedings ; (6) A confirmation of the sale, and an order for the execution of the deed to the purchaser ; and (7) A deed executed in pursuance of the order. When these facts exist, the effect of the judgment is to conclude the rights of all concerned; no informality, no irregularity, no errors in any of the previous proceedings can vitiate it. A mis- description of the land in the assessment roll cannot be taken advantage of. The only objections which can be made to the judgment is a want of jurisdiction.^ § 362. Laws of ruinois. — In the following sections from 363 to 395 is contained a very full consideration of the statutes of Illinois relating to the judicial proceedings required by the law in tax cases, and the decisions under those statutes. It is provided that the deed shall recite the judgment,^ and 1 Rennick v. Wallace, 8 Ohio, 540 ; Wilkins's Heirs' Lessee v. Huse, 9 id. 154. 2 § 373. VOL. I. —22 337 § 363 PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. shall be prima fade evidence of certain things.^ The requi- sites of jurisdiction are laid down,^ and the form of judgment specified.^ An omission of some words of the form, or failure to recite the day of the collector's return, may not invalidate the judgment,* but a judgment rendered prior to the day named in the notice is void ; ^ so if it fails to show on its face the term and day of its entry,* or does not identify the landJ The precept or execution also must conform to the law.8 The form and effect of an Illinois deed are consid- ered,' and the facts that must be shown by one claiming under a tax sale or by one contesting a tax title.^" § 363. The statute of Illinois of February 26,1839, contains the following sections : " Assessors shall finish taking in the list of taxable property on or before the first day of May, annually ; and each assessor shall, on or before the said first day of May, deliver to the clerk of the Commissioners' Court of his county the abstract of lands furnished him by the clerk, together with the original list of taxable property within his district, also a copy of said list; the copy shall contain the names of all persons owning taxable property within his district, arranged and written in alphabetical order ; the origi- nal list shall be filed and preserved by the clerk, and a copy shall be delivered over to the collector of taxes, as herein- after provided." On the second Monday of August, annually, or so soon thereafter as collectors shall have been sworn into office, the clerks of the County Commissioners' Courts shall deliver to the collectors of their respective counties the alphabetical lists of taxable property returned to them by the assessors, and take duplicate receipts of the same, in which shall be specified the amount of taxes to be collected upon the lands contained in the lists, and the amount to be collected upon the personal property ; one of which receipts shall be filed by the several clerks of the County Commis- sioners' Courts in their office, and the other shall be delivered 1 § 374. i" §§ 376-378. 8 § 379. * § 380. « § 382. « § 383. ' § 384. 8 §§ 385-391. 9 § 392. w § 393-395. " § 11. 338 ILLINOIS LAW. § 365 to the county treasurer of the proper county, and by him filed in his oflBce.''^ § 364. "The collectors of the several counties shall, so soon as the lists of taxable property are delivered to them, proceed to collect the taxes charged upon said lists, by calling upon each and every person residing in their respective coun- ties, at his or her usual place of residence, and requiring pay- ment thereof; and each and every person shall be charged with and required to pay to the collector twenty cents on every himdred dollars' worth of property listed for taxation ; and a lien is hereby created and declared to exist, in favor of the State, upon every article of personal property owned by any person charged with taxes, from and after the taxes shall have been demanded by the collector ; and no sale or transfer of the same shall affect the claim or lien of the State, but the said property shall be liable to be seized by the collector, in whosesoever hands or possession the same may be found, and sold to satisfy such taxes, and all costs and charges attending the collection of the same : Provided the lien aforesaid shall not continue to exist longer than to the expiration of the year for which the taxes are or may be due. K any person charged with taxes shall be absent from home when the collector shall call upon him or her for payment thereof, the collector shall leave a written notice at the residence of every such person, stating the amount of taxes due from such person, and requiring him or her to make payment of the same at some time after the expiration of ten days from the date of the notice, and at a place to be specified in the notice ; and such notice shall be considered as a demand for the taxes within the meaning of this act." ^ § 365. " If any person shall fail to pay his or her taxes when demanded by the collector, or within twenty days after such demand, the collector is authorized and required to seize and levy upon any personal property of such person, of value sufiBcient to pay the taxes and costs, and to advertise and sell the same at public vendue ; he shall give fifteen days' notice of the time and place of sale, by posting one advertisement on 1 § 14- " § 16. 339 § 366 PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. the door of the court-house of his county, and at three public places in the neighborhood of the place of sale ; and if the property seized shall not sell for a sum suflBcient to pay the taxes and costs, the collector may seize and sell any other personal property of the person in default, upon giving the notice of sale as aforesaid ; and if any article of property so seized shall sell for more than the taxes and costs due, the collector shall, upon demand, refund the overplus to the owner." ^ § 366. " When any person owning lands in any county in this State shall fail to pay the taxes assessed thereon, and the collector shall be unable to find any personal property of such person in his county whereon to levy, of value sufficient to pay said taxes and costs, it shall be the duty of the collector to make report thereof to the Circuit Court of his county, at the first term in each year ,2 for the preceding year or years, which report shall be in the following form : ^ — 1 §17. ^ The Tequirement of Sess. Laws of 1861, p. 168, § 1, that the notice and the application for judgment shall be to the June term of the court, is peremptory, and a judgment on application at a different term is void. Brown v. Hogle, 30 111. 119; see also cases cited in Id. 127. Under § 26, Act of 1853 (Scates's Comp. 1073), providing for application " to the County Court at the term thereof for judgment," etc., and § 8 of the Amendatory Act of 1855 (id. 1108), providing that the collector may ad- vertise the list of delinquent lands, etc., on the second Monday in March or at any time thereafter, it was held that the County Court has jurisdic- tion to render judgment against deluiquent lands for taxes at any regular term after the April term in each year for the taxes of the preceding year, on legal and proper notice ; and where application for judgment, etc. , was made at the June term and refused because the list had not been filed five days, and a new application was made to the next August term, it was held that the refusal at the June term, not having been on the merits, formed no bar to rendering judgment on the second application. StilweU V. People, 49 111. 45; see also People v. Nichols, Id. 517, 519; Parks v. Miller, 48 id. 360. * The report must substantially follow the form prescribed by statute. In Mon-ill v. Swartz, 39 111. 108; Fox v. Turtle, 55 id. 377, the collec- tor's report simply showing the total amount of taxes due, without speci- fying whether the delinquent tax was due to the State. or County, the error was held fatal. So where the statute (§ 3 of oh. 92 of Act of Assem- 340 ILLINOIS LAW. §367 List of Lands and other Seal Estate, situated m the County of , and State of lUinois, on which Taxes remain due and unpaid, for the Year herein set forth.^ 55 "S •I It a S o § O I I i n § 367. " Before making the application to the Circuit Court provided for in the preceding section, the collector shall pub- lish an advertisement in some newspaper printed in his said county, if any such there be, and if there be no such paper printed in his county, then in the nearest newspaper in this State, which advertisement shall be once published, at least six weeks previous to the said term of the said Circuit Court ; and the said advertisement shall contain a list of the delin- quent lands and town lots to be reported to said court, the names of the owners, if known, the amount of taxes, interest, and costs due thereon, and the year or years for which the same are due; shall give notice of the intended application bly passed Jan. 18, 1844) required the sheriff " in his report to the court, besides stating that the land lies in the county, to state the civil district or districts in which the land lies, to whom granted, or in whose name entered, the quantity of acres, as near as may he, which shaU be a sufficient descrip- tion ; and in cases of town lots, the name of the town and the number of the lot shall be a sufficient description, etc.; and no sale shall be avoided, etc., but such sales shall be good and valid if the foregoing requisites be substan- tially complied with;" and certain tracts of land and town lots were described in said report as follows : " Eli Hill, one tract of land, contain- ing 385 acres, lying in civil district No. 1, valued at $200; taxes, $1.00. To whom granted, or in whose name entered, I have no means of ascer- taining." " B. F. Dnggan, one town lot, lying in the village of Bush Giove, valued at $400; taxes, $2.00." " John Heniford, one town lot in the town of Hillsborough. If numbered, I have no knowledge of it," etc., — it was held that the statute was imperative, and that said report was in- sufficient to found a judgment upon. Ex parte Thacker, 3 Sneed (Tenn.), 344. 1 § 25. 341 § 369 PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. to the court for judgment against said lands and town lots for said, taxes, interest, and costs thereon, and for an order to sell the said lands for the satisfaction thereof ; ^ and shall also give notice that on the second Monday next succeed- ing the said term of the said Circuit Court all the lands against which judgment shall be pronounced, and for the sale of which such order shall be made, will be exposed to public sale, at the court-house of the said county, for the amount of said taxes, interest, and costs due thereon ; and the advertisement published according to the provisions of this section shall be deemed and taken to be sufficient and legal notice, both of the aforesaid intended application by the collector to the Circuit Court for judgment, and also of the sale of said lands, under the order of said court." ^ § 368. " The collector shall obtain a copy of the said adver- tisement, together with a certificate of the due publication thereof, from the printer or publisher of the newspaper in which the same shall have been published, and shall file the same with the clerk of the said Circuit Court, at the said term thereof, together with the said report provided for in the twenty-fifth section of this act." ^ § 369. " The clerk of the Circuit Court, upon the filing of such report and certificate of publication by the collector, shall receive and record the same in a book to be kept for that purpose, in which he shall enter all judgments, orders, and other proceedings of the court in relation thereto, and shall keep and preserve the same as a part of the records of his office ; and the said clerk shall place the said report and 1 This is imperative. See Charles v. Waugh, 35 111. 315, also Abbott V. Lindenbower, 42 Mo. 162. 2 §26. * § 27. Where the certificate of publication was signed " John Went- worth, publisher, by Reid," the authority of such third person so to use the name of the publisher not appearing, it was held insufficient, and the tax title defective; but it seems that in case a newspaper was published by a firm or by a corporation the certificate of one of the partners or of an officer of the corporation showing the official connection of the person making it with the newspaper might be regarded as sufficient. Fox v. Turtle, 55 lU. 377. 342 ILUNOIS LAW. § 370 certificate of said collector at the head of the common-law docket for said term, in the following form, to wit : — " State of Illinois \ V. J Suit for taxes." ^ John Doe and others. ) § 370. " It shall be the duty of said court, upon calling the common-law docket of said term, if any defence be offered by any of the owners of said lands so reported, or by any per- son having a claim or interest therein, to hear and determine the same in a summary way, without pleadings ; and if no defence be made, the said court shall pronounce judgment against the said lands, and shall thereupon direct the clerk of said court to make out and issue an order for the sale of the same, which shall be in the following form, to wit : — " State of Illinois, ) . „ County, ) " Whereas, A. B., collector of said county, returned to the Circuit Court of said county, on the day of , 18 — , the following tracts and parts of tracts of land, as hav- ing been assessed for taxes by the assessor of said county of , for the year 18 — , and that the taxes thereon re- mained due and unpaid on the day of the date of the said collector's return, and that the respective owner or owners have no goods and chattels within this county on which the said collector can levy for the taxes, interest, and coats due and impaid on the following described lands, to wit : [^ffere follows the list.J " And whereas, due notice has been given of the intended application for a judgment against said lands, and no owner hath appeared to make defence or show cause why judgment should not be entered against the said lands for the taxes, interest, and costs due and unpaid thereon, for the year or years herein set forth: Therefore, it is considered by the court that judgment be, and is hereby, entered against the 1 §28. 343 § 372 PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. aforesaid tract or tracts of land, or parts of tracts (as the case may be), in the name of the State of lUiriois, for the sum annexed to each tract or parcel of land, being the amount of taxes, interest, and costs due severally thereon ; and it is ordered by the court that the said several tracts of land, or so much thereof as shall be sufficient of each of them to satisfy the amount of taxes, interest, and costs annexed to them severally, be sold, as the law directs." ^ § 371. " That the form as herein set forth shall be pursued as near as the nature of the case will permit.^ That it shall be the duty of the clerk, within five days after the ad- journment of said court, to make out under the seal of said court a cbpy of the collector's report, together with the order of the court thereon, which shall hereafter constitute the process on which all lands shall be sold for taxes, and deliver the same to the sheriff of his county; and the sheriff shall thereupon cause the said lands to be sold on the day specified in the notice given by the collector for the sale of the same, and make return thereof to the said clerk within twenty days after the day of sale." ' § 372. " Any person or persons owning or claiming lands advertised for sale as aforesaid, may pay the taxes, interest, and costs due thereon to the collector of the county in which the same are situated, at any time before the sale thereof.* Lands and real estate which at the time of sale belonged to infants, femes covert, or lunatics, may be redeemed upon the terms specified in the preceding section, at any time within one year from the time the disabilities of such person shall cease to exist ; and if there be several infants owning a joint, or joint and several, interest in any lands or real estate sold for taxes, such infants, or any one of them, may redeem the same from such sale at any time within one year after the youngest one of them shall arrive at the age of twenty-one years ; and any person claiming the right to redeem land un- der the provisions of this section shall produce to the clerk of the County Commissioners' Court or the proper county the affidavit of some credible person, stating who owned the same 1 § 29. 2 § 30. 8 § 31. * § 32. 844 ILLINOIS LAW. § 373 at the time of the sale thereof ; and if the owner was a feme covert at the time of a sale, stating that fact, and the time at which he or she became of age ; or if there were several in- fant owners, stating that fact, and stating the age of the youngest of such infants ; and if the clerk shall be satisfied, from the facts stated in the affidavit, that the lands proposed to be redeemed are subject to redemption imder the provi- sions of this section, or any other law of the State, he shall file the. affidavit so presented, and permit the lands to be re- deemed, upon the conditions which are or may be required by law ;^ and such redemption shall operate to restore to the owner or owners of the land, his, her, or their heirs or as- signs, all rights which he, she, or they had in and to the same at the time of sale : Provided, however. That the certificate of redemption shall not be evidence of any other fact than that the redemption money was paid." ^ § 373. " Immediately after the expiration of the term of two years ^ from the date of the sale of any land for taxes under the provisions of this act, the sheriff shall make out a deed for each lot or parcel of land sold and remaining imre- deemed,and deliver the same to the purchaser upon the return of the certificate of purchase. Deeds executed by sheriffs shall be in the following form : Know all men by these pres- ents, that whereas, at term, of 18 — , of the Circuit Court of county, a judgment was obtained in said court, in favor of the State of Illinois against the {here in- sert the description of the land'\ for the sum of dollars and cents, being the amount of taxes, interest, and costs, assessed upon said tract of land for the year 18 — , and where- as, on the day of , 18 — , I, A. B., sheriff of the coimty aforesaid, by virtue of a precept issued out of the Circuit Court of the county aforesaid, dated the day of '■ — , and to me directed, did expose to public sale at the door of the court-house, in the county aforesaid, in con- formity with all the requisitions of the statute in such case » §39. > See Bowman v. Wettig, 39 HI. 416. The owner is allowed that time to redeem. 345 § 374 PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. made and provided, the tract of land above described, for the satisfaction of the judgment so rendered as aforesaid ; and whereas, at the time and place aforesaid, C. D., of the county of , and State of , having offered to pay the aforesaid sum of dollars and cents, for , which was the least quantity bid for, the said tract, of land was stricken off to him at that price. Now, therefore, I, A. B., sheriff as aforesaid, for and in consideration of the said sum of dollars and cents, to me in hand paid by the said C. D., at the time of the aforesaid sale, and by virtue of the statute in such case made and provided, have granted, bar- gained, and sold, and by these presents do grant, bargain, and sell, unto the said C. D., his heirs and assigns, the . \_ffere follows the description.'] To have and to hold, unto him, the said C. D., his heirs and assigns, forever ; subject, however, to all the rights of redemption provided by law. In witness whereof, I, A. B., sheriff as aforesaid, by virtue of the authority aforesaid, have hereunto subscribed my name, and afifixed my seal, this day of , 18 — . , Sheriff." 1 § 374. " Deeds executed by the sheriff, as aforesaid, shall be prima facie evidence, in all. the controversies and suits in relation to the right of the purchaser, his heirs or assigns, to the land thereby conveyed, of the following facts: 1. That the land conveyed was subject to taxation at the time the same was advertised for sale, and had been listed and assessed in the time and manner required by law. 2. That the taxes were not paid at any time before the sale. 3. That the lands conveyed had not been redeemed from the sale at the date of the deed. And shall be conclusive evidence of the following facts: 1. That the land was advertised for sale in the manner and for the length of time required by law. 2. That the land was sold for taxes as stated in the deed. 3. That the grantee in the deed was the purchaser. 4. That the sale was conducted in the manner required by law ; and in controversies and suits involving the title to land » §42. 346 ILLINOIS LAW. § 376 claimed and held under and by virtue of a deed executed by the sheriff as aforesaid, the person claiming title adverse to the title conveyed by such deed shall be required to prove, in order to defeat the said title, either that the said land was not subject to taxation at the date of the sale, that the taxes had been paid, that the land had never been listed and as- sessed for taxation, or that the same had been redeemed ac- cording to the provisions of this act, and that such redemption was had or made for the use and benefit of persons having the right of redemption under the laws of the State ; but no per- son shall be permitted to question the title acquired by a sheriff's deed, without first showing that he or she, or the person under whom he or she claims title, had title to the land at the time of the sale, or that the title was obtained from the United States or this State after the sale, and that all taxes due upon the land have been paid by such person, or the person under whom he claims title as aforesaid." ^ § 375. " The books and records belonging to the office of the clerks of the County Commissioners' Courts and the clerks of the Circuit Court, or copies thereof, certified by clerks of either of the courts aforesaid, shall be deemed suf- ficient evidence to prove the judgment and sale of any land for taxes, or the redemption of the same, or the payment of taxes thereon." ^ " Persons paying taxes upon lands adver- tised for sale for taxes, or after judgment has been obtained, and previous to sale, shall be required to pay the cost of suit and of advertising the same, and all other costs which may have accrued on said land under the provisions of this act, up to the time of such payment."* In construing this statute the Supreme Court have arrived at the following conclusions : § 376. First. That in order to confer jurisdiction upon the court, it is essential that the collector should (1) Make the report required by section twenty-five ; and (2) Give notice of the application for judgment as prescribed in section twenty-six.* The report and notice are the foundation of 1 § 43- " § 44. » § 46. * Fortman v. Buggies, 58 111. 207; McEee c. Champaign County Supervisors, 53 id. 477. 347 § 37T PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. the whole proGeeding, and without them the court would have no authority to enter a judgment upon the delinquent list.i § 377. Second. The report of the collector must substan- tially comply with the form prescribed by section twenty-five, or it will be void, and the court acquire no jurisdiction to render judgment upon it. Thus, in Pickett v. Hartsock ^ a report in the following form was held void : " State of Illi- nois, Greene County, Collector's ofl&ce, Aug. 8, 1843. To the Honorable Judge of the Circuit Court of Greene County : The collector of public revenue do ask of your honor judg- ment on the following lands and town lots, situated in said county, for the year 1842 : J. Valentine, 80 acres, E. i S. E. | 83, 11, 10, valuation $320, tax $1.44, costs 22 cents. David Pinkerton, collector of Greene County." This report, it will be seen, does not purport to follow the statute form ; and it is nowhere stated for what year the taxes were assessed. The Court therefore held it insufficient "to invest the Circuit court with jurisdiction." So in Morgan v. Camp^ it was held that the collector's report should show on ite face in which county the lands are situated, and the year for which the taxes are assessed. However, formal defects in the report will not affect the jurisdiction of the court. In Spell- man V. Curtenius * the concluding words of the caption, viz., " for the year herein set forth," were omitted, and in lieu thereof the words " for the year 1843 " were inserted ; and at the foot of the report it was stated that the costs upon each tract of land and town lot, which had then accrued, were ten cents, instead of inserting the amount in a column of the re- port, as indicated by its form ; yet the judgment was held valid. By the court : " When the court has before it a col- lector's report properly headed, giving a description of the land, the amount of taxes due upon it, and for what year, a case is presented authorizing the court to act, if the proper 1 AtMns V. Hinman, 7 HI. 437; Chesnut v. Marsh, 12 id. 173; Spell- man V. Curtenius, Id. 409; Pitkin v. Yaw, 13 id. 251; Manly u. Gibson, 14 id. 136; Charles ». Waugh, 35 id. 315; Morrill v. Swartz, 39 id. 108. 2 15 111. 279. » 16 HI. 175. * 12 DI. 409, 414. 348 ILUNOIS LAW. § 378 notice has been given." In tlie same case it was objected that the amount of costs was not correctly stated in the re- port ; but the court replied ; " This is immaterial, as it does not go to the jurisdiction of the court to enter a judgment. It might be cause for reversing a judgment on a direct pro- ceeding, by appeal, or writ of error, but cannot be made a question where the judgment comes collaterally in issue." The twenty-fifth section of the above-recited act was amended by the act of Feb. 1, 1840,^ requiring the collector to make his report at least five days before the term of the court at which he applied for judgment. Where the judgment is silent as to the day when the report was made, it will be pre- sumed to have been made in conformity with the statute ; and where the requirement has been disregarded, it has been held directory. The jurisdiction of the court does not depend upon a literal compliance with this provision ; it is sufiicient if made before the sitting of the court, or on the day of the commencement of the term.^ The report need not show upon its face that a demand was made of the tax, and that the owner of the land had no goods and chattels ; it is sufii- cient if made in the form prescribed by the statute, in which case the demand, and fact that no goods could be found, will be presumed.' § 378. Third. It will be perceived that section forty-three does not make the deed conclusive (or even prima facie) evidence that due notice of the application for judgment had been given, but simply " that the land was advertised for sale in the manner and for the length of time required by law." The consequence is that the jurisdiction of the court, as far as it depends upon the publication of the notice prescribed in section twenty-six, is open to attack. The recital in the form of the judgment,* " And whereas, due notice has been given of the intended application for judgment," is prima facie evidence of this jurisdictional fact. This was the evidence 2 Atkins V. Hinman, 7 HI. 437, 450; Jackson v. Cammings, 15 id. 449. » Taylor v. People, 7 HI. 349 ; Job v. Tebbetts, 10 id. 376, 382. *§29. 349 § 379 PEOCEEDINGS WHERE CONDEMNATION IS REQUIRED. of the jurisdiction in Chesnut v. Marsh,^ although the report of the case is imperfect in this respect. Of course it may be impeached ; and this was attempted in Jackson v. Cummings.^ The question there made was as to the sufficiency of the cer- tificate of publication required by section twenty-seven. The advertisement consisted of the usual caption, the list of lands, etc., the notice of the intended application for a judgment, and the time and place of sale, followed by a certificate of the printer, " that the foregoing was duly published on the 15th of January, 1845, in the ' Peoria Democratic Press,' published in Peoria County, Illinois, and that the number of transcripts so published corresponds with the number of newspapers printed and distributed for that week." The objections to this certificate were: 1. That it did not appear that the " Press " was a newspaper ; that it might be a book, a monthly periodical, or a handbill. 2. That the words, "number of transcripts so published," might refer to other advertisements of copies, and not the tax list. To which the court reply: " We may read the advertisement and certificate so, as critical scholars ; but knowing the statute under which such publica- tions are made, every one, lettered" or unlearned, would un- derstand its proper connections, meaning, and object." In this case the following abbreviations in the advertisement itself were sanctioned by the court, upon the authority of the cases cited in the margin,3 viz., « $," for dollar, « c," « ct.," " cts." for cent or cents, « m." for mills, " Lt." for lot, " Bk." for block, " Tx." for tax, « VI." for valuation, « T." for township, " R." for range, " Sec." for section, " qr. sec." for quarter sec- tion, and " pt." for part, etc. § 379. Fourth. The form of the judgment is prescribed in section twenty-nine.* Where it has been departed from, the » 12IU.173. ^ 15 m. 449. So a decree of foreclosure, nnder a tax deed, which re- cites that notice of the pendency of suit was given, may be impeached by showing that notice was not given. McGahen v. Carr, 6 Iowa, 331. ' Goodall V. Harrison, 2 Mo. 153, 154; Long v. Long, 2 Blackf. (Ind.) 293; Stevens's Ex. u. HoUister, 18 Vt. 294; Atkins v. Hinman, 7 111. 437, 444; Blakeley v. Bestor, 13 id. 714; Rev. Stat. HI. 1845, p. 446, § 62. * The judgment must show clearly the amount of tax for which jt is 350 ILLINOIS LAW. § 379 courts have sustiained the judgment, upon the principle that when it has been rendered by a tribunal of competent juris- diction, it must be regarded as valid in all collateral actions, however erroneous it may be ; that no irregularity or infor- mality can justify a court in pronouncing it void.^ Perhaps the strongest case illustrative of this rule is that of Chesnut V. Marsh.2 The judgment in that case read thus : " It is con- sidered and adjudged- by the court that the State of Illinois do severally recover of the several owners of the lands, de- scribed in the report and list aforesaid, the taxes due upon each of said lots of land, being the same set down in figures opposite to each lot of land, together with the interest and costs due thereon, and the costs of this proceeding ; and it is further considered and adjudged that each of said lots of land described in the list aforesaid, or so much thereof as will be sufficient, be sold to satisfy and pay this judgment and the costs of sale ; and this judgment is to be entered as a several rendered. The figures " 248," without some mark indicating for what they stand, in a column, at the head of which is the word " Tax," is not sufficient. Lawrence v. Fast, 20 III. 338; Randolph v. Metcalf, 6 Cold. (Tenn.) 400, 408; Elston v. Kennicott, 46 111. 187; Potwin v. Oades, 45 id. 366; Pittsburg, Ft. W. & C. R. Co. v. Chicago, 53 id. 80; Chickering V. Faile, 38 id. 342; Lane ». Bommelmaun, 21 id. 143; Woods v. Freeman, 1 Wal. (U. S.) 398; see also Cook v. Norton, 43 IlL 391; People v. San Francisco Savings Union, 31 Cal. 132; Braly v. Seaman, 30 id. 610, 619; People V. Empire, &c. M. Co., 33 id. 171. But see contra, Gaboon v. Coe, 52 N. H. 518, 524. Qucere, whether the precept must be equally certain, see Eppinger u. Kirby, 23 HI. 521 ; Dukes v. Rowley, 24 id. 210. But this rule does not apply to the want of a word or character to the numerals to indicate the amount of taxes due, as a defect, to anything prior to the application of the collector for judgment sigainst delinquent lands ; thus, the absence of the dollar mark in the assessment roll, to designate the amount of the valuation or the taxes, will not render the assessment or collector's warrant invalid and illegal. Chickering v. Faile, supra ; Elston B. Eennicott, supra; see also State v. Eureka Cons. M. Co., 8 Nev. 15. That the, judgment must show that the clerk of the Circuit Court has recorded the collector's report and certificate of publication, see Dokes v. Rowley, supra. » Chesnut v. Marsh, 12 111. 173; Atkins v. Hinman, 7 id. 437; Merritt V. Thompson, 13 id. 716. « 12 111. 173. 351 § 380 PEOCEEDINGS WHERE CONDEMNATION IS EEQUIEED. judgment against the owner of each lot of land described in the report and list, and the land itself, for the taxes, interests, and costs due upon the same." This was a gross departure from the form prescribed by the statute, and was in reality a judgment against the owners, with an award of execution against their land to satisfy it, with a direction to the clerk to enter it up as a several judgment against the owner and the land. The statute contemplated a judgment in rem.^ This was a judgment in personam, and to that extent, at least, was conceded to be void.^ Three questions arose upon these facts : (1) Is the judgment rendered void because of the fact that it does not pursue the statute form ? (2) Is it void as a judg- ment against the land (if it can be so regarded), simply be- cause it is confessedly void as to the owners ? and (3) Is it not substantially a judgment against the land ? The first and second questions were answered in the negative, and the latter in the affirmative, by a majority of the court. Judge Trumbull dissenting. The reasoning of the coui-t was, that a judgment could not be impeached collaterally, however informal or irregular ; that this was substantially a judgment in presenti against the land, and not a mere direction to the clerk to enter up one in the future ; and that, inasmuch as no effort was made to enforce it as a judgment in personam, but against the land alone, that part which affected the owners might be treated as surplusage. § 380. In Atkins v. Hinman ^ the judgment did not recite the day of the date of the collector's return, and omitted the words " and that the taxes thereon remained due and unpaid on the day of the date of the said collector's return." Both of these recitals are contained in the statute form of the judg- ment. With these exceptions the form was strictly pursued. Besides, the report, which was in the form prescribed by law, was copied into the judgment, and thus became a part of it. The judgment was sustained upon two grounds : 1. That in- asmuch as the jurisdictional facts appeared upon the face of the record, the omissions and variations in matters of form, 1 Olcott V. state, 10 III. 481. " See Pidgeon v. People, 36 El. 249. » 7 111. 437. 352 ILLINOIS LAW. § 383 were evidently clerical mistakes, which ought not to vitiate the judgment. 2. That the omitted facts in the formal parts of the judgment clearly appeared in the collector's report, which was a part of the judgment record, and this was equiva- lent to a direct recital. § 381. The judgment cannot be attacked and impeached collaterally, because the costs are improperly taxed, whether they are greater or less in amount than permitted by law.^ A judgment for the amount of the tax, and generally for the costs, as in ordinary judgments, is sufiicient.^ So, where the amount of the costs is stated at the bottom of the collector's report, and immediately preceding the concluding part of the judgment order, the judgment is valid.^ The law does not require that the judgment should state the name of the pa- tentee, or present owner, the valuation of the land, the county where it is situated, or the year for which the tax is due ; consequently their omission is immaterial.* § 382. On the other hand, it was held in Pickett v. Hart- sock ^ that a judgment rendered for taxes on a day prior to the day named in the notice of the collector is void. In that case the notice stated that the collector would apply for judgment on the first Monday of April, which was the seventh day of that month. The judgment was rendered. April 4. Treat, C. J. : " The tax judgment of April 4, 1845, was clearly void. It was rendered prior to the day named in the notice of the collector. The action of the court was premature and unauthorized. It had no jurisdiction over the case before the 7th of April. Up to that day owners had the right to pay the taxes charged against their property, or to make preparation to resist the application for judgment." ^ § 383. So, where the judgment record fails to show upon its face the term and day when it was entered, it is a nullity, 1 Spellman v. Curtenius, 12 El. 409, 414; Merritt v. Thompson, 13 id. 716, 723. " Merritt v. Thompson, 13 lU. 716, 723, 725. « Ibid. * Spellman p. Curtenius, 12 111. 409, 412. 6 15 111. 279. ^ See "Williams o. Gleason, 5 Iowa, 284. VOL. I.— 23 353 § 384 PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. and cannot be aided by oral evidence. Thus in Young v. Thompson 1 the facts were that the tax deed recited a judg- ment rendered at the May term, 1848 ; the precept bore date May 22, but the record of the judgment was silent as to when it was entered up, but showed that it was rendered for the unpaid taxes of 1847 ; the book in which judgments against delinquent lands were recorded, showed on inspection that the judgment immediately preceding the one in question was upon the tax lists of 1845 and 1846, but was also silent as to the time of its rendition ; and the caption of the succeeding judgment showed that it was rendered at the May term, 1849, on the list of 1848. The general record of the court showed that the court held its regular term in May, 1848, and it further appeared that the precept upon the judgment in ques- tion was issued within five days after the rendition of the judgment, as required by law; but this information was derived from an entry of the clerk at the foot of the judg- ment, and was no part of the record authorized by the stat- ute. The judgment, to be valid, must have been rendered at the May term, 1848. Treat, C. J.: "In our opinion there was no legitimate evidence in the case to show that it was rendered at that time. It certainly did not appear of record ,at what time the judgment was entered. This presented a fatal objection to the plaintiff's title. The rule is, that a record imports absolute verity, and must be tried by itself. If deficient or imperfect it cannot be aided by evidence dehors the same.^ This record failed to show such a judgment as was described in the sheriff's deed, and the deed must fall for want of a foundation on which to rest." § 384. The description of the land contained in the judg- ment must be so certain that a definite locality can be given to it, or it will be void.^ But words, figures, and abbre- viations may be used for the purpose of designation.* Es- » 14 111. 380. 2 Commercial Digest, Title Record, B. & E.; Croswell ». Byrnes, 9 Johns. (N. Y.) 287; Elliott v. Peirsol, 1 Pet. (U. S.) 328; James's Lessee V. Stookey, 1 Wash. C. C. (U. S.) 330. ' Oloott r. State, 10 lU. 481. * Ibid. 354 ILLINOIS LAW. §385 amples of this rule will be found in the cases cited in the margin.^ To authorize a judgment against several distinct parcels of land for one aggregate sum of money, the lots must constitute one entire block or tract.^ § 385. Fifth. The precept which issues upon the judgment must substantially conform to the requirements of the law, or it will be treated as a nullity. In addition to section thirty-one, as hereinbefore set forth, the ninth section of the Act of Feb. 1, 1840, provides that "so much of the thirty-, first section of the act to which this is an amendment as re- quires the clerk of the Circuit Court to furnish a copy of the collector's report to the sheriff be and the same is hereby repealed." 8^ This repealing clause was itself repealed March 6, 1843, and the provision requiring a copy of the collector's report to be delivered to the sheriff, re-enacted.* In Hinman V, Pope ^ a judgment in the form prescribed was read in evi- dence without objection. A precept was then offered and rejected, which was in this form, namely : — Usi of Lands and other Seal Estate, situated in the County of Broum, and State of IlliTwis, on which Taxes remain due and wgmidfor the Years herein set forth. i Is Nmnes of the Patentees. o k Gideon Brunk. Andrew Gerold. 1839 1840 Description. 160,N.E.22,1S.,4W. 160,N.E.30,1N.,2W. . _2 1 Tax. Cost. "3 f» fll20 560 16 640 448 16 Goonty. Brown. The foregoing is a correct list of taxable property upon which taxes remain due and unpaid for the years 1839 and 1840, in Brown County, State of Illinois, March 24, 1841. Thomas S. Brockman, Collector of Brown County, Illinois. 1 Hinman v. Pope, 6 HI. 131, 133; Atkins v. Hinman, 7 id. 437, 443; Spellman i: Curtenius, 12 id. 409. * Pitkin V. Yaw, 13 111. 251; Spellman v. Curtenius, 12 id. 409; Atkins V. Hinman, 7 id. 437. ' Laws of 1840, p. 5. ♦ Laws of 1842, 1843, p. 237, § 28. '6 LI. 131. 355 § 388 PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. is,) State of Illinois, Brown County, f The People of the State of Illinois to the Sheriff of said County greeting : — You are hereby commanded to sell so much of the fore- going tracts of land as shall be sufficient to satisfy the tax, interest, and costs on each lot, set opposite said lot, in the foregoing list, and make due returns of your doings, accord- ing to law. In testimony whereof, I have hereunto set my hand, and r -1 affixed the seal of the Brown Circuit Court at '- ■ '^ Mt. Sterling, this 20th day of April, a. d. 1841. James Brockman, Cleric. § 386. It will be perceived, on a comparison of this docu- ment with the thirty-first section of the act of 1839, that it does not conform to the requirements of that section, which requires the clerk to make out, under the seal of the court, a copy of the collector's report, together with the order of the court thereon, and deliver the same to the sheriff, etc. It does not recite that any judgment had ever been rendered by the court. It is a mere mandate of the clerk to sell certain tracts of land for taxes, to be found in a collector's list appended to the paper. § 887. An execution, to be valid, must show on its face that such a judgment has been rendered by a competent court as will justify emanation. It was contended that the repealing clause in the act of Feb. 9, 1840, made the precept in this case valid ; but the court held that the only effect of this clause was to dispense in the precept with the collector's report, but that in all other respects the process must conform to the requisitions of the thirty-first section of the act of Feb. 26, 1839, which required the precept to consist of a copy of the judgment, certified under the seal of the court ; whereas in this case the precept did not purport to be such copy, either in form or substance. § 388. In the case of Job v. Tebbetts ^ the validity of the I 10 Bl. 376, 380. 356 ILLINOIS LAW. § 390 precept depended upon the construction of the thirty-first sec- tion of the act of Feb. 26, 1839, and the ninth section of the act of Feb. 1, 1840, which latter dispensed with a cop7 of the collector's report. The facts were, that the clerk copied and authenticated the judgment order, and de- livered it to the sheriff, but omitted the list and description of the lands against which the judgment was pronounced. It was insisted by the counsel opposing the title derived under this precept, that the judgment, according to the form prescribed in section twenty-nine, contained the list of lands, and that a copy of the judgment order would necessarily contain it also, and that the ninth section of the act of Feb. 1, 1840, evidently intended to dispense with a copy of the collector's report ; otherwise a delivery to the sheriff of two complete lists of lands against which judgment was pro- nounced would be required, one of which would be utterly useless, and be attended with ,much expense. The court, however, held that although the question was not free from difficulty, the construction contended for was not admissible ; that under the law of 1839 but one list was necessary, and that was dispensed with by the act of 1840, and consequently the precept should not recite the lands embraced in the re- port and judgment, but consist simply of a copy of the order of the court, duly certified under the seal of the court. § 389. Since, however, the passage of the act of March 6, 1843, which restored the old law of 1839, the list of lands and the order of the court thereon are essential to the valid- ity of the precept. The copy of the order of sale was in- tended to notify the sheriff that the court had entered a judgment for the sale of the lands reported, while the copy of the collector's report was designed to apprise him what land he should sell.^ The form of the precept under this ruling wiU be found in Atkins v. Hinman.^ § 390. In Manly v. Gibson^ it was held that where the list of lands embraced in the collector's report was delivered to the sheriff, with the order of the court thereon, duly 1 Job V. Tebbetts, 10 El. 376, 382. « 7 HI. 437, 444, 445. 3 14 Dl. 137. 357 § 392 PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. authenticated, the precept was suflBcient, though the formal parts of the collector's report were omitted. Those omissions and informalities in the judgment which do not render it void will not invalidate the precept, because the latter is a mere copy of the former ; ^ nor will a clerical mistake in the recital of the time when the collector made his report render the precept void.^ And it has also been decided that the precept is not a "writ or process," within the meaning of the constitution, which requires all process, etc., to run in the name of the " People of the State of Illinois." ^ A material variance between the precept and judgment upon which it is based is fatal to its validity. Thus in Pitkin v. Yaw,* where the judgment was for 99 cents, and the precept recited a judg- ment for il.25, it was held to be a material, and therefore a fatal variance. The precept described a judgment more than one fourth larger than the one actually rendered. Trifling variances may be disregarded; but one which destroys the legal identity of the proceedings cannot be sustained. § 391. Sixth. In the construction of this statute it is held not only that the judgment and precept are essential to the validity of a sale for taxes, but that the burden of proving their existence rests upon the purchaser, or those claiming under him; the court holding the analogy between these and ordinary sheriff's sales complete in this respect.* § 392. Seventh. The deed must substantially conform to the requisitions of the forty-second section of the statute, wherein the form is set forth. It must recite the judgment, precept, sale, and expiration of the time of redemption. If any material variances exist between the facts and the reci- tals in the deed, or if it substantially departs from the statute form, it will be treated as void, and cannot be read in evi- dence. The statute expressly declares that " deeds executed 1 Chesnut v. Marsh, 12 LI. 173; Atkins v. Hinman, 7 id. 437, 451. 2 Chesnut v. Marsh, 12 Kl. 173. * Curry v. Hinman, 11 111. 420; Scamtt v. Chapman, Id. 443. * 13 m. 251. « Hinman v. Pope, 6 HI. 131; Atkins v. Hinman, 7 id. 437; Spellman V. Curtenius, 12 id. 409; Pitkin v. Taw, 13 id. 251. 358 ILLINOIS LAW. ' § 394 by the sheriff, as aforemid, shall be " prima fade evidence of some aud conclusive evidence of other facts particularly enumerated in section forty-three. It surely was never in- tended to give to the deed a conclusive effect against the rights of a third person when the ofiBcer contemns the very authority under which he acts, and disregards the plain re- quirements of the law, which is his only guide in the execu- tion of the deed. In Pitkin v. Yaw,^ where the judgment was against eight lots, and the deed recited a judgment against and a sale of two only, the variance was held fatal, and the deed inadmissible in evidence. § 393. Eighth. The party claiming title under the tax sale makes out & prima facie case by producing, (1) The judgment of a court of competent jurisdiction; (2) A valid precept issued thereon ; and (8) A sheriff's deed made in conformity with the law.^ The presumption then arises that all of the requisitions of the law have been complied with by all of the officers who had anything to do with the proceedings, and the onus prohandi is thrown upon the party contesting the validity of the tax title.^ § 894. Ninth. Section forty-three declares that " no per- son shall be permitted to question the title acquired by a sheriff's deed, without first showing that he or she, or the person under whom he or she claims title, had title to the land at the time of the sale, or that the title was obtained from the United States or this State after the sale, and that all taxes due upon the land have been paid by such person, or the person under whom he claims title as aforesaid." In constructing this section it has been decided substantially, (1) That any one may attack the validity of the judgment, precept, and deed, without putting himself "in position," as it is called ; (2) But if, after the person claiming under the 1 13 ni. 251. 2 Holbrook v. Dickinson, 46 HI. 285. That the holder of a tax title muBt show that the collector's report and certificate of advertisement were properly recorded, as well as that a judgment was rendered and precept issued, see Dukes v. Rowley, 24 HI. 210. ' Manly v. Gibson, 14 HI. 136; Lnsk v. Harber, 8 id. 158; Hinman v. Pope, 6 id. 131 ; Atkins v. Hinman, 7 id. 437. 359 § 395 PROCEEDINGS WHERE CONDEMNATION IS REQUIRED. tax title has made out a prima facie case by showing a valid judgment, precept, and deed, the adverse party desires to question the prima facie title thus established, he must prove title to the land at the time of the sale, and the payment of taxes as required by this section.^ Proof that the party con- testing the tax sale was in possession, claiming title to the land at the time of the sale, is sufi&cient evidence of title within the meaning of this statute.^ And if it appears that no taxes are due to the State upon the land, this satisfies the other require- ment of the statute, although the taxes were not paid by the party who desires to contest the validity of the tax title.^ § 395. Tenth. — Where the party resisting the validity of the tax sale has thus put himself " in position," he may de- feat the sale by establishing these defences : (1) That the land was not subject to taxation at the date of the sale ; * (2) That the taxes, for which the land was sold, had been paid ; ^ (3) That the land was not listed and assessed in the time and manner required by law ; ® (4) That the sale had been re- deemed from ; "' (5) That the sale was made on a day differ- ent from that designated in the notice or the law ;^ and (6), The party may go behind the judgment and show that any of the material prerequisites of the law have not been com- plied with.® There are doubtless other defences which may 1 Hinman ». Pope, 6 111. 138 ; Bestor v. Powell, 7 id. 119 ; Atkins v. Hinman, Id. 453, 454; Lusk ». Harber, 8 id. 158; Curry v. Hinman, 11 id. 420 ; Spellman v. Curtenius, 12 id. 409 ; Hope v. Sawyer, 14 id. 254. " Lusk V. Harber, 8 111. 158; Curry v. Hinman, 11 id. 420. 8 Curry v. Hinman, 11 111. 420; Hope v. Sawyer, 14 id. 254. « § 43. ^ § 43; Curry v. Hinman, 11 111. 420. But after decree of foreclosure, under the Iowa statute, it is too late to show that tax was paid. Gaylord V. Scarff, 6 Iowa, 179. 8 Marsh v. Chesnut, 14 111. 223; Billings v. Detten, 15 id. 218. ' § 43; Chapin v. Curtenius, 15 111. 432. 8 Hope V. Sawyer, 14 111. 224; Polk v. Hill, 15 id. 130. ' Lusk V. Harber, 8 111. 161, 162. Judgment rendered at a date when the time for payment of tax has not fully expired is invalid. Williams v. Glfeason, 5 Iowa, 284. A judgment cannot be rendered for taxes, a part of which are shown by the record to be illegal, unless the taxes are so levied as to show to what portion the land is legally liable. Campbell v. State, 41 111. 454. 360 ILLINOIS LAW. § 395 be successfully made to a tax sale under tMs statute; but no ' decisions have settled them, and it is unnecessary to antici- pate the action of the courts. It is proper to add in conclu- sion that the laws of Illinois now in force are substantially like the act of 1839, and their construction is governed by the same principles laid down in this chapter. 361 CHAPTER XII. THE ADVERTISEMENT OF SALE. § 396. Summary of the Subject. — In order to give the owner a last warning and opportunity to pay his tax and save the land, and in order to notify the public of the sale and arouse competition,^ notice of the sale must be given in the time and manner required by law.^ If the statute merely provides for notice without prescribing its form and contents, (1) the advertisement must sufficiently identify the land to en- able the delinquent to ascertain that it is his land which is in danger, and the purchaser to estimate its value ; (2) the amount of tax charged on the land and (3) the time^ and place* of sale must appear.* If the law specifies the form, or con- tents, or both, it must be very strictly (perhaps literally) con- formed ® to the required statements respecting the amount^ and date, kind, and purpose of the tax ; ^ and the time it has been delinquent,* name! of the person assessed,® place of the levy and place of publication ,1" that the land " will be offered for sale " at public auction,^^ etc., must not be omitted, nor vary from the statutory form. If too much land is included in the notice, or the description is insufficient,^ if the notice is in writing when it should be printed,!^ if it is not published in the particular newspaper,^* or publicly post^,'* or read in court,^* or recorded,^* as the law may specify, or is published before the proper time,^^ as before the prior remedies are exhausted (not until the land is liable to be sold can notice be given), or not published the full length of time,i" or not at proper intervals,^^ or is not published by the proper officer,^^ 1 § 398. 2 § 398, General Statement. « § 424. « § 425. 6 § 411. 6 §§ 412, 413. ^ § 423. » § 415. 9 § 429. i» § 414. " § 428. " § 416. 1= § 413. " § 400. 16 § 443. " § 407. " § 430. " § 399. 362 GENERAL PRINCIPLES. § 397 or does not on its face purport to be the act of said officer, or is not officially signed,^ or is not in as many languages as the law requires,* or fails in any way to conform strictly to the express provisions of the statute, or to substantially accomplish its objects, it is a void notice, and no waiver of the irregularity by the owner wUl avail to make the sale valid.* In some jurisdictions, however, the provisions relating to notice of sale are held to be merely directory as to the owner.* The evidence of notice is discussed in §§ 450 and 443-449. § 397. Greneral Fiinciples of Iia^v in Regard to Notice. — The maxim is familiar, " That notice is of the essence of things required to be done ; " ^ and it is a fundamental rule that in all judicial or quasi judicial proceedings affecting the rights of the citizen he shall have notice, and an opportunity of a hearing, before the rendition of any judgment, decree, or order against him. In other words, he must be warned, and have his day in court. And in the application of this rule it is immaterial whether the tribunal exercising authority over his rights proceeds regularly or summarily, — according to the due course and process of the common law, — or in pursuance of a general or special statute. It would be a violation of one of the first principles of justice and judicial proceedings, to try and decide upon the rights of an individ- ual, civilly or criminally, without notice, and consequently an opportunity of defending himself. So strict is the rule, that where a proceeding of a judicial nature is authorized, and the statute is silent as to notice, the adjudication will be void unless notice is given to the party in interest.® Where the proceeding is before a special tribunal exercising a sum- mary authority, contrary to the course of proceeding in the 1 § 399. « § 441- * § 451. * § 452. ' Rex V. Loxdale, 1 Burr. 447; Doughty r. Hope, 3 Denio (N. T.), 594. 6 Chase p. Hathaway, 14 Mass. 222 ; Eddy v. People, 15 HI. 386; Hol- liday v. Swailes, 2 id. 515; Shumway v. Shumway, 2 Vt. 339; Smith v. Burlingame, 4 Mason (U. S.), 121; Corliss v. Corliss, 8 Vt. 373, 389; Kinderhook Com. v. Claw, 15 Johns. (N. Y.) 537; Brown v. Wheeler, 3 Ala. 287; State Bank v. Marsh, 7 Ark. 390; Owners, &c. v. Albany, 15 Wend. (N. Y.) 374; see Ireland v. Rochester, 51 Barb. (N. Y.) 414. 368 § 397 THE ADVERTISEMENT OP SALE. common-law courts, the evidence that due notice was given must indisputably appear upon the face of the record. Even a recital of the notice is insufficient ; it must be set forth at large in the record, that it may be seen on inspection whether the notice was legal and sufficient.^ If such is the law of notice in judicial proceedings, it applies with much greater force to the exercise of ministerial power where the act is not only summary, but the notice merely constructive ; where the pro- ceeding is in the nature of a judgment, and terminates in the divestiture of a title to real estate. The law in relation to sheriffs' sales would seem to be an exception to this principle. An advertisement of the time and place of sale is usually required, but in this respect the statute is regarded as merely directory to the officer. Without doubt it is his duty to comply with its directions, and for a breach of his duty he would be responsible to the injured party ; but such a breach of duty is not in itself sufficient to avoid the sale. In such cases the sheriff derives his authority from the judgment and execution, and not from the advertisement. Besides, the debtor having been regularly brought into court by the ser- vice of process, is bound to take notice of all the subsequent proceedings in the cause, particularly in reference to the exe- cution, which, to use the language of Lord Coke, is the " life of the law." ^ But even in this case, if the purchaser is aware of the fact that the officer has failed to advertise the sale in conformity with the requirements of the law, the sale may be avoided. This would amount to a constructive fraud. It is only bona fide purchasers who are protected in this class of cases, and not those who have actual notice of a substan- tial irregularity .3 Such is the law of notice in sheriffs' and indeed in all sales made under the authority of a judgment, order, or decree. 1 Rex V. Croke, 1 Cowp. 26; Cheatham v. Howell, 6 Terg. (Tenn.) 311; Gwin V. Vanzant, 7 id. 143. 2 Minor v. Natchez, 4 Smedes & M. (Miss.) 602; 8. c. 10 id. 246; Law- rence V. Speed, 2 Bibb (Ky.), 401; Allen's Lessee v. Parish, 3 Ohio, 187; Stall V. Macalester, 9 id. 19. « Hayden v. Dunlap, 3 Bibb (Ky.), 216; Webber v. Cox, 6 T. B. Mon. (Ky.) 110. 364 GENERAL PRINCIPLES, § 398 § 398. Notice of Tax Sales ; General Statement — It seems to have been a universal principle in the legislation of this country relative to compulsory taxation, that a notice of the time and place of selling the land of a delinquent must he given by publication in one or more newspapers of the State or county in which the proceeding takes place, by recording the list, or posting notifications, in some public place.^ There is less uniformity, however, in the details of the various stat- utes regulating the form and contents of the notice, the time of publication, the number of newspapers in which it shall be inserted, the number of issues which shall contain it, the cir- culation of the paper, and the mode of proving and perpet- uating the fact of publication. It may, however, be laid down as a general rule that the advertisement of the sale in the time and manner prescribed by the law is a prerequisite to the validity of a tax title. The officer derives his power of sale, in part, from the advertisement of it. Power is con- ferred upon him to be exercised on certain contingencies ; and these contingencies must have happened, and the conditions on which he caij act must have been performed, before his act can be valid. Jlis power does not attach until every prere- quisite of the law has been complied with. One object of ad- vertising tax sales is to give full notice to the proprietor, and furnish him with every facility for the voluntary payment of the tax, before a resort is had to coercive means ; and another, equally beneficial to him, is to create competition at the sale, and prevent his entire estate from being sacrificed for a trifling sum compared with its real value, when the sale of a less quantity might have been made if a spirited competi- tion had existed. The longer the notice is published, the wider the circulation of the paper, and the more full the in- formation conveyed in the advertisement, so much greater will be the competition at the biddings. It follows that any neg- lect of the officer which deprives the owner and bidders of that full information which the law intended to give them is 1 ■^Tiether the advertisement of sale was such as the law required, is a mixed question of law and fact, and should be submitted to the jury. Cooley V. O'Connor, 12 Wal. (U. S.) 391. 365 § 398 THE ADVERTISEMENT OP SALE. fatal to the validity of the tax sale. These principles aj-e fully sustained by the authorities.^ Proper notice, personal, or to an agent or curator, ad hoc, is an absolute necessity. A sale without it is a nullity.^ " Notice, or at least the means of knowledge, is an essential element of every just proceeding which affects the rights of persons or property." ^ In all proceedings of a judicial nature, — and assessment is of this nature, — notice and an opportunity of a hearing before the proceeding can be effectual is necessary.* An assessment without notice transcends the power of the legislature, and is void.* It has always been the rule in this country to give the person assessed notice, and an opportunity of being heard 1 Parker v. Rule's Lessee, 9 Cranch (U. S.), 64; Williams v. Peyton's Lessee, 4 Wheat. (U.S.) 77; Garrett v. Wiggins, 2 111. 335; Fitch o. Pinckard, 5 id. 69; RonkendorfE v. Taylor's Lessee, 4 Pet. (U. S.) 349 ; Pope V. Headen, 5 Ala. 483; Elliot «. Doe d. Eddins, 24 id. 508; Jenks V. Wright, 61 Pa. St. 410; Pitts v. Booth, 15 Tex. 453. Where the statute required a notice to be published by the treasurer, stating that the transcript of unpaid taxes had been made, and that unless said taxes should be paid at his office within twenty days after the first publi- cation of said notice he would proceed to collect the same by public sale, etc. , and the notice given was that unless the tax was paid within twenty days from the date of the notice the land would be sold, etc., and the notice was dated Aug. 10, 1860, but was not first published till Aug. 11, 1860, the sale was held invalid. State v. Newark, 36 N. J. L. 288; Miles 0. Walker, 4 Mich. 641; Washington v. Pratt, 8 Wheat. (U.S.) 681; Games v. Stiles, 14 Pet. (U. S.) 322; Early v. Doe d. Romans, 16 How. (U. S.) 610; Delogny v. Smith, 3 La. 418; Moulton v. Blaisdell, 24 Me. 283; Brown v. Veazie, 25 id. 359; Farnum t>. Buffum, 4 Cush. (Mass.) 260; Prindle v. Campbell, 9 Minn. 212; Bidwell v. Webb, 10 id. 59; St. Anthony Falls W. P. Co. v. Greely, 11 id. 321; Minor e. Natchez, 4 Smedes & M. (Miss.) 602 ; s. c. 10 id. 246; Styles v. Weir, 26 Miss. 187; Hughey's Lessee v. Horrel, 2 Ohio, 232 ; Holt's Lessee v. Hemphill, 3 id. 232; Thompson's Lessee v. Gotham, 9 id. 170; Wilkins's Heirs' Lessee V. Huse, 10 id. 139; Wistar's Lessee r. Kammerer, 2 Yeates (Pa.), 100; Luffborough v. Parker, 16 Serg. & R. (Pa.) 351 ; Kinney v. Beverley, 1 Hen. & M. (Va.) 318, 344; Nalle's Rep. v. Feuwick, 4 Rand. (Va.) 585, 594 ; AUen v. Smith, 1 Leigh (Va.), 281. « Person v. O'Neal, 32 La. Ann. 236 (1880); Lague v. Boagni, Id. 913 (1880). » Philadelphia v. Miller, 49 Pa. St. 449 (1865). < Matter of Ford, 6 Lans. (N. Y.) 94 (1872). 6 Ireland v. Rochester, 51 Barb. (N. Y.) 414 (1868). 366 GENERAL PRINCIPLES. § 399 in some stage of the proceeding; and a law that does not provide for such notice and opportunity takes property with- out " due process of law," i. e., it is an exertion of legisla- tive power without the safeguards for individual rights which the settled maxims of the law prescribe for the class of cases to which the one in question belongs.^ Want of notice of sale avoids the title. It is not an " error or defect going to the validity of the assessment and affecting the groundwork of the tax," and so is not within the protection of the Wisconsin Laws of 1880, ch. 309, § 3.^ The giving of notice in the man- ner prescribed by law is an essential jurisdictional fact. If the law requires advertisement for ei^ht weeks, notice for seven weeks is insufficient ; and if the statute requires that the advertisement should state the amount of taxes and costs, and that the notice be posted at the court-house door, failure in either particular is fatal.^ Where notice was first published on the 15th of March, the sale took place on April 14th, and the law required thirty days' notice, the sale was held void, since the day of giving notice and the day of sale should both have been excluded in the computation of the thirty days.* Eighty-two days is not enough under a law requiring notice for " twelve successive weeks," for that is eighty-four days.^ Where the collector levied on an entire estate owned by several heirs, and gave notice to only one of the heirs, the sale was void.* § 399. The OfBcer FubUshing, and his Signature. — The ad- vertisement is an official act, and to be valid, must be pub- lished by the officer to whom the duty has been assigned, and purport upon its face to be his official act, and be attested by 1 Stuart V. Palmer, 74 N. Y. 192 (1878). A very strong case, holding void a statute authoriziug street assessments because it neglected to make provision for notice or hearing. " Urqnhart v. Weseott, 65 Wis. 135. « Ciarke ».'Eowan, 53 Ala. 401 (1875); see Nelson v. Goebel, 17 Mo. 161 (1852); Villey v. Jarreau, 33 La. Ann. 291. The want of notice avoiding the sale may be taken advantage of by a mortgage creditor. * Stenart v. Meyer, 54 Md 454 (1880). 6 Early v. Doe, 16 How. 610 (1853). • Thurston v. Miller, 10 R. I. 364 (1872). 367 § 399 a THE ADVERTISEMENT OP SALE. his official signature ; but slight variances between the signa- ture and the real name of the officer are not fatal.^ It has been shown in a preceding chapter that the act of an officer de facto is valid. This rule will undoubtedly apply to the publication of the delinquent list, though it has been held that where an advertisement bore date June 7, and it appeared that the collector who caused its publication was not sworn until three days thereafter, the sale was void.^ It must ap. pear on the publication by what power and in what capacity the person acts ; and where the official character of the person was omitted, and the advertisement did not purport upon its face in any other manner to be an official act, the court held the sale void. The court said : " The advertisement in this case was not signed by Spaulding as collector, nor did it in any way so import, and the landholders were therefore no way informed that the signer of that advertisement had any more right than any other man to give such notice, nor that he had such' power as he undertook to exercise. It is not true that every man is presumed to be clothed with and to be exercising an official authority because it seems to be needed for what he is attempting. Such a principle would sweep away all official signatures and designations. Every known public officer must add his official signature to every official document. Besides, in this case the statute form contained such official designation, and its omission is fatal. The form in such cases must be strictly followed." ^ § 399 a. While the law is thus rigid in requiring that the publication should in fact be an official act, and so purport upon its face, slight variances between the real and published name of the officer are regarded as immaterial. Thus, in Isaacs V. Wiley,* where the name of the collector appointed was Luther H. Brown, and the name attached to the adver- tisement was Luther W. Brown, the advertisement was held valid, the court saying: "In the absence of proof that two persons bearing the same name, and distinguished by these initial letters, reside in the region where the appointment was 1 § 399 a. 8 Langdon v. Poor, 20 Vt. 13. 8 Spear ». Ditty, 9 Vt. 282. * 12 Vt. 674. 368 THE NEWSPAPER. § 400 made, it certainly requires a very great stretch of credulity to admit the construction that one man was appointed to this office, and that another intruded himself into his place and assumed the burden of his duties. We think it more rational to treat the name as being the same, but capriciously varied to suit the taste or whim of the individual." This decision is in accordance with the general rule that the law recognizes but one Christian name, and that the omission of or variance in the middle name of a person is immaterial.^ § 400. The Newspaper. — If the law requires publication in a certain newspaper or in several,^ the requirement must be conformed to, and publication in a different newspaper is in- sufficient ;3 but the notice may be good, although there is a variance as to the name of the paper, if the identity of the paper with the one designated by the law can be established.* Where a newspaper was actually printed in Chicago, but pur- ported on its face to be issued in Hyde Park, and was intended to meet the wants of the village as a local paper, it was held to be a local paper, and that the publication was in the village without reference to where the manufacturing process was carried on.^ The newspaper must be both published and cir- culated in the city where notice is to be given. If published there but circulated elsewhere, the notice is insufficient.® No- tice may be published in a supplement if its circulation is as extensive as that of the main paper.^ " The Enterprise " sufficiently designates the " Glencoe Enterprise," that being the only newspaper of the name in the county.* Where one half of a paper was printed out of the county, and the other half, including matters of local interest and the tax notices, was printed in the county, it was held that the paper was printed within the county within the meaning of the Wiscon- 1 Franklin v. Talmadge, 5 Johns. (N. Y.) 84. « § 406. s §§ 401-404. 4 § 405. 6 Ricketts v. Hyde Park, 85 111. 113 (1877). « Haskell v. Bartlett, 34 Cal. 281 (1867). f Zahradnicek v. Selby, 15 Neb. 579 (1884); Tully v. Bauer, 52 Cal. 487 (1877). 8 Knight V. Alexander, 37 N. W. 796 (Minn.). VOL. I. — 24 369 § 401 THE ADVEETISBMBNT OP SALE. sin statute.^ So where the law required publication in a news- paper to be designated by the county board of commissioners, and the board named the Minneapolis "Tribune," and pub- lication was made in the Minneapolis " Weekly Tribune," there being also a Minneapolis " Daily Tribune," it was held that there was no sufficient designation of the paper.^ § 401. Newspaper having the " Greatest Circulation." — Sometimes the law requires the notice to be published in a newspaper having the greatest circulation in the county where the sale is to take place ; when such is the case, a compliance with the requirement is essential to the validity of the adver- tisement. Thus, in Hughey's Lessee v. HorreP the statute of Ohio declared that the county auditor, on receiving the delin- quent list, " shall forthwith cause the same to be advertised six weeks successively in some newspaper printed at the seat of government in this State ; and also in a newspaper printed in his proper county, if any such there be, and if not, in some newspaper in most general circulation in said county." The facts were, that the notice was published in a newspaper at Columbus, the seat of government, and in no other. It ap- peared in evidence that the newspapers of Chillicothe and Springfield had a partial circulation in the county where the land lay, but that the Columbus papers had the most general circulation there ; and it further appeared that there was no newspaper printed in the county of the sale. The court held the notice illegal. " It is contended," say the court, " by the defendant, that as there was no paper printed in the county of Madison, and as the Columbus pa'per was in general circula- tion in that county, it was not necessary to publish the notice in any other. The law does not admit of such construction. The publication must be made in two papers, one printed at Columbus, and the other in the county where the auditor resides, if there be such a paper, and if not, then in some paper (other than the one printed at the seat of government) 1 Hart V. Smith, 44 Wis. 213. 2 Russell B. St. Paul M. & M. Ky. Co., 31 N. W. 692 (Minn. 18S7); 36 Minn. 366. 8 2 Ohio, 231; s. c. 1-4 Ohio Cond. 335. 370 THE NEWSPAPER. § 403 in most general circulation in his county. The design of this provision was to extend the notice as generally as possible, for the information of owners, and for the purpose of increas- ing competition at the sale. This requisition is substantial and useful, and cannot be dispensed with." § 402. Some Paper having a " Q-eneral Circulation." — In Doe d. Pierce v. Sweetser^the law required the county auditor to publish the notice four weeks prior to the first Monday in January, the day of the sale, in some newspaper having gen- eral circulation in his county, if any such there be, " else by posting notices, at some public place, in each county commis- sioner's district, etc." The facts were, that there was no paper printed in the county of the auditor, where the delin- quent land lay ; and the evidence of the required notice was a certificate of the county auditor, which was competent to prove the facts contained in it, under the laws of Indiana, in these words: "October 23, 1844. I, John Gilbert, county auditor, etc., do hereby certify that I wrote three copies of the foregoing delinquent list and notice; that I put one of them on the court-house door, and handed the other two to the sheriff, requesting him to put up one in each of the re- maining commissioners' districts, etc. I further certify that said advertisements were put up publicly, more than four weeks prior to the first Monday in January, 1845, etc." The sale was held illegal. By the court : " It does not follow, be- cause no paper was published in the county where the land lay, that none had a general circulation there." § 403. A publication in extra sheets, which are circulated with the paper designated by law, is a legal notice ; but where it appears that the extra sheets were not in fact sent to all of the subscribers of the paper, the advertisement will be re- garded as void.^ Such was the practice in Illinois from 1823 to 1830 ; but as the notices were all illegal in other respects, this question was never judicially determined. But there seems to be no plausible objection to a publication in extras, if the circulation of them is as extensive as the newspaper itself in which the notice is required to be published. The 1 2 Ind. 649. " Davis v. Simms, 4 Bibb (Ky.), 465. 371 § 405 THE ADVERTISEMENT OF SALE. extra would have, under such circumstances, the same puh- licity as the regular sheet. No one could be prejudiced by it ; and for the purpose of preservation and reference the extra sheet, containing nothing but the delinquent list, would be more convenient to all concerned. § 404. Where the law requires the publication to be made in the State paper, in the paper published in a particular county, or in a particular paper named in the statute, the ad- vertisement must be so published, or it is a nullity. Though the reason of the law's preference may not appear, the letter of the law must be complied with. Probably the strongest case in support of this rule to be found in the reports is that of Bussey v. Leavitt.^ The law required a notice to be pub- lished, three months prior to the day of sale, by three succes- sive weekly insertions in the newspaper of the public printer of the State. Two publications were . inserted in the " Port- land Advertiser and State Gazette," which was the newspaper of the public printer ; but before the third insertion the legis- lature, by a resolve, declared it to be no longer the " State pa- per." The court decided the advertisement and sale founded on it to be illegal. § 405. Change in Name of the Paper. — But where the law required the notice to be published in the " Vermont Republi- can " (a paper bearing that title at the time of the passage of the statute being intended), and the name of the paper was afterwards changed by the addition of the words " and Ameri- can Yeoman," and the notice was published in the paper bear- ing the title thus changed, the advertisement was held valid, the court saying that " the second name of a newspaper is seldom, if ever, regarded in common parlance ; but the ad- dition raises no doubt of the identity of the paper." ^ It would seem from this that newspapers and persons are placed on the same footing, as far as their names are concerned. The name of each is used for the purpose of designation only, and if the identity can be established it is certain enough, though a variance may exist. It very often happens that a newspaper, after being published for a long series of years by 1 12 Me. 378. 2 Isaacs v. Shattuok, 12 Vt. 668. 372 THE NEWSPAPER. § 406 the same proprietor, at the same place, and under the same name, is transferred to a stranger, the name changed, but its publication is continued, and the paper is still taken by the patrons of its predecessor. Now, if the legislature were to direct the publication of the tax list in the paper by its origi- nal name, and it was so published for several years after the passage of the law, and the name was then changed, under the circumstances above indicated, would there be any doubt of the legality of continuing the publication of the tax list in such a paper? The spirit of the law would be complied witl^ and a failure of justice would take place if the right so to publish was denied. § 406. Several Papers. — It is also well settled that if the statute requires the advertisement to be inserted in several newspapers published at different places, the notice is illegal unless inserted in all of the papers thus designated.^ Thus, the statute of Ohio required the county auditor to publish the delinquent list in some newspaper printed at the capital of the State, and also in a newspaper printed in the county where the sale was to take place, or if no paper should be printed in that county, then in some newspaper having a general circula- tion in such county. It appeared upon the trial of a tax title acquired under this statute that the notice was published in a newspaper at Columbus, the seat of government, but in no other. It further appeared that no paper was printed in the county where the sale was to take place, that the papers then published at Springfield and Chillicothe had a partial circula- tion in such county, but the Columbus papers had the most general circulation there. Objection being made to the suffi- ciency of the publication, the sale was held void. By the court : " It is contended that as there was no paper printed in the county, and as the Columbus paper was in general circula- tion in that county, it was not necessary to publish the notice in any other. The law does not admit of any such construc- 1 See Bunner v. Eastman, 50 Barb. (N. Y.) 639. So, where the notice is to be inserted in the newspaper " nearest to the county," that is held to be the one published nearest the county line. Weer v. Hahn, 15 111. 298. 373 § 407 THE ADVERTISEMENT OP SALE. tion. The publication must be made in two papers, one printed at Columbus, and the other in the county where the auditor resides, if there be such a paper, and if not, then in some paper, other than the one printed at the seat of government, in most general circulation in his county. The law was de- signed to extend the notice as generally as possible, for the information of owners, and for the purpose of increasmg com- petition at the sale. This requisition of the law is substantial and useful, and cannot be dispensed with. Tax sales are at- tended with greater sacrifice to the owners of land than any others. Purchasers at these sales seem to have but little conscience. They calculate on obtaining acres for cents ; and it stands them in hand to see that the proceedings have been strictly regular." ^ § 407. WTien the Authority to advertise accrues. — The officer has no right to advertise the land for sale, until the preceding steps required by law have been taken,^ exhausting the personalty,* etc. ; nor is an advertisement valid that is published prior to the time named in the law.* The statute usually requires a warrant to collect, or the de- linquent list to be delivered to the collector, which constitutes his authority to proceed ; and after the warrant or list comes to his hands, and before the advertisement is required to be made, the collector is directed to make a personal demand for the tax, and in default of payment to arrest and imprison the body, or seize and sell the goods of the delinquent, and a time is usually limited within which the demand, arrest, or seizure is to be made, and before which time has expired the collector has no authority to advertise ; or a time is fixed by law when the advertisement must be made out by the collector and de- livered to the printer for publication. The authority of the collector to advertise a sale of the land of the delinquent does not attach, until the time thus limited for the exercise of these collateral remedies has expired ; and if he proceed to advertise before the time fixed, the act is illegal, and the sale founded thereon void. The reason is apparent. The authority to pro- 1 Hughey's Lessee v. Horrel, 2 Ohio, 231; s. c. 1-4 Ohio Cond. 335. " § 408. 8 § 409. * § 410. 374 WHEN NOTICE MAY BE GIVEN. § 410 ceed against the land depends upon the fact that the collateral remedies are unavailing, and this cannot be certainly known until the time has expired within which they may be pursued. § 408. Conditions Precedent. — Besides, the ofl&cer has no right to increase the burden of the delinquent by the costs of an advertisement, until the law arms him with the power. The statute of New Hampshire required the collector, on or before a particular day, to make out and deliver to the deputy secretary of -state a copy of his tax list, which the deputy was to retain, and receive payment of the taxes for a limited time, when it was to be returned to the collector. It has been held, in construing this act, that until the redelivery of this list the collector has no authority to advertise and sell.^ § 409. Personalty First. — In Ohio, the county auditor has no power to advertise and sell until he has received from the state auditor a list of the forfeited lands, certified and signed by the auditor, and attested by his seal of office.^ And under the present revenue law of Illinois the authority of the col- lector to advertise the list depends upon his inability to find personal property belonging to the delinquent of value suffi- cient to satisfy the taxes.^ § 410. Publication begun too soon, fatal. — The act of Con- gress relating to the taxing power of the city of Washington provided "that real property, whether improved or unim- proved, etc., on which two or more years' taxes shall have been due and unpaid, or on which any special tax, imposed by virtue of the authority of the provisions of this act, shall have remained unpaid for two or more years after the same shall have become due, may be sold, etc." In Ronkendorff v. Tay- lor's Lessee * the lot in question was sold for the ordinary taxes of 1820 and 1821, which by the ordinances of the city became due on the first day of January succeeding the re- spective assessments, and also for a special paving tax, levied 1 Cambridge Prop. v. Chandler, 6 N. H. 271; Homer v. CiUey, 14 id. 85. 2 Hannel's Lessee o. Smith, 15 Ohio, 134. » Revised Statutes, 1845, p. 444, §§ 46, 47. * 4 Pet. (U. S.) 364. 375 § 411 THE ADVEETISEMENT OP SALE. in 1820, which latter tax did not become due until Jan. 1, 1821. The law required three months' notice prior to the sale. The advertisement was first inserted in a newspaper Dec. 6, 1822. The sale took place March 10, 1823. The court held the advertisement and sale illegal upon the ground that the law made a clear distinction between general and special taxes; that property might be sold to pay ttie gen- eral tax as soon as two years' taxes became due; but in the case of special taxes it could not be sold until the expira- tion of two years after the tax became due; that the first notice was given nearly one month before the lot was liable to be sold ; that the whole period should have elapsed, which was necessary to render the lot. liable to be sold for the special tax, before the advertisement was published ; that the owner of the lot, by paying the tax at any time before Jan. 1, 1823, would save it from the liability of being sold ; and that until this liability had attached, he could not be chargeable with the expense of notice, nor could it be legally given. A law providing that " after twenty days from the date of any tax judgment, if the amount therein charged shall not have been paid, the county auditor shall sell," etc., has been held not to prevent the corhmencing of publication of notice within the twenty days.^ § 411. Form and Contents of the Advertisement. — Where the statute is silent as to the forpi and contents of the adver- tisement, but directs generally that the collector shall give notice, the statute is to receive such a construction as will enable the delinquent to ascertain whether his land is adver- tised, the amount of the tax charged upon it, and the time and place when and where the sale will take place.^ Thus, under the acts of Congress of Jan. 9, 1815, and March 5, 1816, it was declared that when the owner was a non-resident of the collection district where the land lay, and 1 Everett v. Boyington, 29 Minn. 268 (1882). * Under a statute requiring notice of sale of the land for unpaid taxes to the •owner thereof, it was held that the mortgagee, being the legal owner of the land mortgaged, is the person to whom notice must be given by the sherifi. Whitehurst v. Gaskill, 69 N. C. 449. 376 FORM AND CONTENTS. § 412 the tax remained unpaid for the space of ninety days, the collector should " transmit lists of the same to one of the col- lectors within the State, to be designated by him for the pur- pose, etc., and the collector thus designated, etc., shall cause notifications of the taxes due, as aforesaid, and contained in the lists thus transmitted to him, to be published for sixty days, etc.," and section 4 of the act of 1815 provided that " the secretary of the treasury shall establish regulations suit- able and necessary for carrying this act into effect." The notice, in fact, published, was in this form ; namely, " Notice is hereby given that the subscriber has received lists of the direct tax of 1816, remaining due upon property in the following counties in the State of New Hampshire, not owned, etc., and that he is authorized to receive said taxes, with an addition of ten per cent thereon, etc., E. Cutts, Collector designated, etc." No description of the land, or particulars of the tax, or name of the owner were stated in the notice ; but it appeared that the notification was in the form prescribed by the secretary of the treasury. The advertisement was held illegal, the court saying : " It (§ 4) cannot be construed to authorize him (the secretary of the treasury) to dispense with a clear requisition of the statute. The objection must prevail. It is true that the statute does not require in express terms that any descrip- tion of the land taxed, or that the name of the owner, should be inserted in the notification. But what is a notification of a tax ? Can anybody suppose that a mere publishment of the figures that express the sum assessed would be a notification of the tax within the meaning of the statute ? We think not. It seems to us to be implied in the very terms ' notification of the taxes,' that notice was to be given to each owner that the tax on his land remained unpaid." ^ Describing a tax as of the year when it is due, the statute prescribing no rule of description, is unobjectionable.^ § 412. Wliere no form is given, but the statute declares what the contents of the advertisement shall be, each fact required 1 Eastman ». Little, 5 N. H. 290; Michie v. Mullin's Lessee, 5 Hayw. (Tenn.) 90. » Cahoon v. Coe, 52 N. H. 518. 377 § 413 THE ADVEETISEMENT OP SALE. by the statute must appear in the advertisement, or it will be void; thus, the time and place of sale, a description of the lands to be sold, the amount of tax due, the name of the owner,^ his delinquency, that no goods of his can be found out of which to satisfy the tax, the year for which the tax was due, a recital of the purpose for which the tax was levied, and such other facts as the particular statute under which the notice is given may have rendered essential. Any omission in these respects, or variance between the contents of the notice and the facts of the case, will invalidate the proceedings. § 413. Form and Contents of the Advertisement in general — The following principles or rules for testing the validity of tax titles appear to be fairly deducible from the reported cases on that subject : (1) When the statute under which the sale is made directs a thing to be done, or prescribes the form, time, and manner of doing anything, such thing must be done, and in the form, time, and manner prescribed, or the title is in- valid ; and in this respect the statute must be strictly if not literally complied with ; (2) But in determining what is re- quired to be done, the statute must receive a reasonable con- struction, and when no particular form or manner of doing a thing is pointed out, any mode which effects the object with reasonable certainty is sufficient; and in judging of these matters the court is to be governed by such rational rules of construction as direct them in other cases.^ These two prin- ciples are best illustrated by the cases relative to the form of the advertisement. Where the form is prescribed by the statute, that form must be strictly and literally followed ; the court will not admit the substitution of a different one. Some decisions are exceedingly strict, e.g., where the statute re- quired the posting of a printed handbill or advertisement of the sale of land for taxes, posting a written one is not a com- pliance with the statute ; and a tax deed which recites simply the posting of such written advertisement is void on its face.' Other cases look to the substance of the law, and apply the 1 Styles V. Weir, 26 Miss. 187; Sutton v. Calhoun, 14 La. Ann. 209. « Chandler v. Spear, 22 Vt. 388; Brown v. Hutchinson, 11 id. 569. " Lagroue v. Rains, 48 Mo. 536. 378 FORM AND CONTENTS. § 414 principles of common sense to tax titles ; e. g., where the law provided that on or before the 1st of September the county treasurer should make a list of lands to be sold, and deliver the same to be printed in certain newspapers for ten weeks prior to the sale, and the notice was dated September 15, the error was held immaterial, the law being regarded as manda- tory only so far as necessary to secure the publication for the full ten weeks before sale.^ Omission to state in the notice of sale the person to whom the tax should be paid is not vital,^ nor is it necessary to state the time within which the debtor may redeem; and if such a statement is made and the time wrongly set forth, the mistake is immaterial.* § 414. Omission to name in the Advertisement the Place of Levy and the Place of Publication, fatal. — Thus, the statute of Vermont directed the name of the place where the legislature held their session at the time when the tax was granted, to be inserted in the advertisement according to the following form ; namely : " Whereas the legislature of Vermont, at their session, at , in the year , assessed a tax, etc.," and the statute enacted that the " blanks in the form of the advertisement, hereinbefore directed, shall be filled with the place of the session of the legislature where the tax was assessed." The collector omitted to comply with this requi- sition. At the time of the passage of the statute the seat of government of the State of Vermont was ambulatory ; but when the collector made out his advertisement, the legislature had, by law, permanently located the capital at a fixed place, and the law assessing the particular tax recited in the adver- tisement was passed at the place thus fixed. The clerk had also omitted, in making a record of the advertisement, to state the place where one of the newspapers in which it was inserted was published, as required by the statute. For these defects the advertisement was declared illegal and the sale void. The court discussed the two questions together, saying: "That the collector should have followed the form, and the clerk 1 Chamberlain ». Taylor, 36 Hun (N.Y.), 38 (1885). » Sanders v. Seavey, 38 Barb. (N. Y.) 70 (1862). « Matter of Tax Sale of Lot 172, 40 Md. 196 (1874). 379 § 415 THE ADVERTISEMENT OP SALE, made the statement of the place where the paper was printed a part of the record, are positive requirements of the statute ; and a compliance with these requisitions must be regarded as a condition precedent to the conveyance of a good title by the vendue deed. Where property is affected or the title divested by the provisions of a special act of the legislature, the re- quirements of the act must be strictly followed. In the pres- ent case the operation of the special statute was to divest the defendant of his property on his failure to perform a duty created by the statute, and on the performance of certain acts prescribed to the oflBicers required to collect the tax and record the proceedings. The performance of these acts is the condition on which the property was divested, and it is not for the court to inquire whether the provisions of the statute were reasonable, whether a compliance with them might not be dispensed with without injury to the defendant, but whether they have been made ; and if so, they must be literally pur- sued."^ In another case the person making the advertise- ment omitted to prefix to his signature his official designation of " Collector," as required by the statute form, and the sale was held irregular, upon the ground that the statute form ought to be strictly followed.^ § 415. Failure to state the Time that the Taxes have been delinquent, fatal. Where the statute required that the collector should publish an advertisement that he would sell, on a par- ticular day, all lands on which the taxes remained due for the space of nine months from the date of the assessment, and a delinquency for this length of time was not stated in his notice, it was held void ; the court saying : " The manifest purpose of this requirement was not only to let the party charged with the tax know that there was such a tax against him, and unpaid, but that his delinquency had continued so long after the date of the assessment that the law authorized proceedings in the manner prescribed to obtain the sum re- quired from the land on which the tax was based. Without such notice, which is of substantial utility to the person against whom the tax remains undischarged, he is not informed, in » Culver V. Hayden, 1 Vt. 359. " Spear ». Ditty, 9 Vt. 282. 380 DESCRIPTION OP LAND. § 417 the manner wliich the legislature have provided, that he is exposed to the costs which will arise from an attempt to ob- tain the tax from the land itself." ^ § 416. InsufBcient Description of the Iiand or Interests to be sold is fatal. — In describing the land, the collector in his advertisement must give a particular and certain description, so that the owner may know that it is his land, and bidders may ascertain its locality with a view to the regulation of their bids.^ The land must be so definitely described that no purchaser can be at a loss to estimate its value.** The treas- urer's notice of sale must contain a description of the land sufficiently definite to identify it.* A description of property as a certain number of lots in a certain square, between cer- tain streets, without giving their numbers, is too vague to identify the property.^ The description must be sufficient to warn the owner and direct purchasers to the property.^ Where the notice said, " Third Ward ; Chapman, Julia A. ; cost, 1.50 ; int. 24.22 ; tax, 177.23 ; total, 202.95," and this was the only advertisement of eight parcels, there being no notice to purchasers whether one lot or eight were to be sold, and no means of identification, the sale was void.'' A de- scription of land as " except 12.64 acres in the southeast corner of sublet 1, lot 1, in north section Robinson's Reserve " is meaningless and void.* So " part 5, of lot 4, of section 20, township 28 north, of range 22 east," without metes and bounds, is too indefinite, and the sale is void.^ § 417. A description in an advertisement for a tax sale of " a piece of land set off by Edmund Chamberlain on settler's lot No. 5, 128 rods long and 38 rods wide, — 25 acres," was 1 Hobbs V. Clements, 32 Me. 67. 2 Brown v. Veazie, 25 Me. 359; Tallman v. White, 2 N. T. 66; Car- michael v. Aiken's Heirs, 13 La. 205; Famum v. Buffum, 4 Cush. (Mass.) ^60; see Yenda v. Wheeler, 9 Tex. 408; Patrick v. Davis, 15 Ark. 363. » § 422 * Nason v. Ricker, 63 Me. 383 (1873). 6 Marin ». New Orleans, 30 La. Ann. Pt. 1, 293 (1878). Warshung v. Hunt, 47 N. J. L. 256. ' Hunt V. State, 9 A. Eep. 199 (N. J. 1887) ; 48 N. J. L. 613. 8 Pickering v. Lomax, 11 N. E. 175 (El. 1887); 120 lU. 289. 9 Murphy v. Hall, 31 N. W. 754 (Wis. 1887); 68 Wis. 202. 381 § 417 THE ADVERTISBMENT OP SALE. held suflBcient to support a sale.^ The following description of land in township No. 8, south division, Hancock County, consisting of twenty thousand acres, in an advertisement of a sale for taxes, was held insufficient, the advertisement not indicating the meaning of " S. D.," or in what part the " 4197 " acres are to be located : — HANCOCK COUNTT. Tracts. AdTertised. Sold. State tax. No. 8. S. D. 4197 4197 10.42, etc.' A sheriff's notice of sale of lands under the warrant of a county treasurer, issued upon an assessment of rents reserved, etc., should describe the lands to be sold separately.* An advertisement to sell the whole tract, or so much thereof as may be necessary, is good.* When taxes are delinquent on a whole section or any part of it, belonging to one owner and lying in one contiguous body, it is the duty of the treasurer to advertise the whole tract in a single description.^ Under ch. 24, Acts of Extra Session, 8th Gen. Assembly, making it the duty of the treasurer, in giving notice of the sale of lands in cases where the owner is unknown, to embrace the largest quantity practicable in each description of such lands, the advertisement of one hundred and sixty acres of land in gross belonging to an unknown owner, which was assessed in par- cels, constitutes no defect.® It is not every error in descrip- tion that will invalidate the advertisement. A notice served on the occupant of land describing the premises as " lot 5, lot 23 in Carpenter's addition," instead of " lot 5 in block 23," is not bad, as the person served could not be misled by it, and would understand that it was the lot 6 of which he was the occupant.'' . In Iowa a notice of sale of all delinquent lands is 1 Smith V. Messer, 17 N. H. 420; see Greene r. Lunt, 58 Me. 518. ^ Griffin V. Creppin, 60 Me. 270. ' Cruger v. Dougherty, 1 Lans. (N. T.) 464. n, ^ State V. Galloway, 44 N. J. L. 145 (1882). The proceedings were under a special statute. 6 Cedar Rapids & M. R. Co. v. Carroll Co., 41 Iowa, 153 (1875); Iowa R. Land Co. v. Sac County, 39 id. 124 (1874). ^ Henderson v. Oliver, 32 Iowa, 512. ' Garriok v. Chamberlain, 97 HI. 638 (1881). 382 DESCRIPTION OP LAND. §419 good, and ■will cover all that are delinquent. Failure to specifically include certain land in such notice of sale of de- linquent lands will not invalidate sale of the said land. " The notice fixed the time of sale. The delinquent was hound to know that the taxes on his land had not been paid. The law notified him that all delinquent lands were required to be offered for sale. He cannot shield himself from the conse- quences of neglect merely by the fact that the published notice did not contain the land in question." ^ § 418. Undivided Interests. — In Massachusetts "the adver- tisement shall contain a substantially accurate description of the several rights, lots, or divisions of the estate to be sold ; " and where a notice informed the public that certain parcels, " or such undivided portions thereof as may be necessary, will be offered for sale at public auction," the proceedings were held void, although in fact the whole parcel was sold. A collector has no right to sell or advertise to sell an undivided interest in land.^ § 419. Name uncertain smd Description void. — The statute of Massachusetts required -the advertisement, among other things, to state the names of the owners, if known, and when unknown, to give " a substantially accurate description of the rights, lots, or divisions of tlie real estate to be sold ; " the description given was, " Moses Buffum, house and land, and Loring Emerson, house, barn, and 115 acres of land." The court say : " This we consider a very uncertain description, and altogether insufficient. The owner's name not appearing in the notice, a full and clear description of the property to be sold should be given." ^ In another case, where the plain- tiff claimed under a tax sale, the advertisement contained the following description, namely : — Name. Na.ofBntT7. Ori^nal Proprietor. Original Quantitr. Waterconrse. Acres. Bate. Tax. Haines, John. 4401 Haines, John. 170 Mad River. 73 2 3.922 1 Shawler o. Johnson, 52 Iowa, 476 (1879); see Allen v. Armstrong, 16 id. 508; Madson t'. Sexton, 37 id. 562; Hurley v. Powell, 31 id. 64. « WaU V. WaU, 124 Mass. 66, 67 (1878). » Famum r. BufEum, 4 Cush. (Mass.) 260. 383 § 419 THE ADVEBTISEMENT OP SALE. The Circuit Court instructed the jury that the desciiption was so imperfect that no valid sale for taxes could be made under it. On error, the court say : " The law in requiring an advertisement of the sale has this double object in view, — to apprise the owner that the tax is unpaid, and to invite the attention of purchasers in such a manner that the land may be sold for its fair market price. To attain these ob- jects it is necessary that the description should be such that the owner may know that the tax on his land is unpaid, and that purchasers may learn the precise tract intended, and be enabled to estimate its actual value. In this case the whole original entry was taxed to its then owner, Haines, and perhaps was suflBciently described by its number and water- course ; but ninety-seven acres had been transferred to an- other name, leaving seventy-three acres still standing to Haines. What seventy-three acres ? In common or separate ? If separate, in what part of the lot do they lie ? The answers to these questions materially affect the price. Without them no such information is communicated to the public as is cal- culated to produce a fair competition, and no prudent man will offer its value in his bid. The description, therefore, is not adapted to promote a fair sale, and it must be holden insufficient." ^ In another case the description was, " R. 4, T. 3, Sec. 13, p. N. half 60 acres." By the court : « The tax title set up by the defendant cannot be sustained. The de- scription in the duplicate and advertisement is too vague and uncertain. ' Sixty acres, part of the N. ^ of section 13.' Which sixty acres ? is an inquiry natural to be made. In Lafferty v. Byers ^ it is held that such a description is too general. The tax sale must be held void."^ A description running " |^ of block 4 in," etc., is void for uncex-tainty.* So a notice of sale which embraces all lands upon which taxes are assessed, and is hot restricted to lands which may be delinquent, and which designates no place of sale, is void.^ 1 Lafferty's Lessee v. Byers, 5 Ohio, 458. ^ 5 Qhio, 458. * Treon's Lessee v. Emerick, 6 Ohio, 392. * Bidwell o. Coleman, 11 jSIinn. 78. 6 Prindle v. Campbell, 9 Minn. 212. 384 DESCBIPTION OP LAND. § 421 § 420. Misdescription fatal. — In Williams v. Harris ^ the judgment of condemnation, order of sale, advertisement, and sheriffs deed all stated that the land lay in A. county. In fact, two tiiirds of it lay in B. county. It was held the sale was void as t6 any lands lying in B. coimty. Where the city and county in which the land lies are not distinctly stated in the notice, it is insufficient ; and the fact that the notice is headed " Auditor's Office, Ramsey County, Minn., St. Paul, Dec. 8, 1862," will not cure the defect.^ In Douglas V. Dangerfield ^ the advertisement followed the description in the list, and it was held void. Where the watercourse upon which the land was situate was misdescribed, the advertise- ment was held illegal.* § 421, Misdescription fatal. — The Tennessee statute re- quired the collector "to specially and particularly describe the land and the number of the grant or entry." In Gardner V. Brown ^ the land was thus described : " Caleb Cross's heirs, 64 a.. No. 1328, lying in the 12th district, in the first range, 9th section." The land did not in fact belong to Cross's heirs, but was granted in 1827 to Jesse Brown, under whom the plaintiff claimed title. The number in the description was that of the entry. The court held the description insuf- ficient. " The land is not particularly and specially described in the advertisement. It is described by the number of the entry, and not by the number of the grant. The words of the section, indeed, are, that it shall be described by a reference to the ' grant or entry ; ' the meaning of which is, that if the land be gi-anted, the number of the grant shall be referred to, and if it be not granted, that the number of the entry shall be referred to; and not that in case of granted land a reference may be made by the officer, at his election, to the number either of the grant or entry." In Jacques v. Kopman * this description was held void ; namely, " A lot of ground in Faughbourg Livaudais, Parish of Jefferson, designated by the number 8, square 45." 1 4 Sneed (Tenn.), 332. ^ Bidwell v. Webb, 10 Minn. 59. » 10 Ohio, 152. * Cnrrie v. Fowler, 5 J. J. Marsh. (Ky.) 145. 6 1 Humph. (Tenn.) 354. « 6 La Ann. 542. VOL. I. —25 385 §422 THE ADVERTISEMENT OF SALE. § 422. Test of the Sufficiency of the Description in an Adver- tisement. — In Ronkendorff v. Taylor's Lessee ^ the description and other particulars in the advertisement were as follows: To whom Assessed. No. of Sqaare. No. of Lot. Amonnt James N. Taylor. Paving Tax Interest, 10 per cent. Henry Toland's Heirs. 491 491" J Of 4. J0V4. $16.80 23.46 16.80 The law required " the numher of the lots (if the square has been divided into lots), the number of the square or squares, or other sufiBcient or definite description of the property se- lected for sale, to be stated in the advertisement." The Circuit Court instructed the jury "that the advertisement did not sufficiently designate what half of the said lot was charged with the said taxes, and was to be sold for the same, and did not purport to be an advertisement of an undivided moiety." This ruling was sustained by the Supreme Court of the United States. McLean, J. : " Congress had two objects in view in requiring this notice to be given: (1) To apprise the owner of the property; and (2) To give notice to persons desirous of purchasing. It is necessary for the interest of the owner that he should be informed of a pro- ceeding which, unless averted by the payment of the tax, would divest him of his property ; and it was of equal if not greater importance that the property should be so defi- nitely described that no purchaser could be at a loss to esti- mate its value. It is not sufiScient that such a description should be given in the advertisement as would enable the person desirous of purchasing, to ascertain the situation of the property by inquiry. And if the purchaser at the sale had been informed of every fact necessary to enable him to fix a value upon the property, yet the sale would be void, unless the same information had been communicated to the public in the notice. Its defects, if any exist in the de- scription of the property to be sold, cannot be cured by any communication made to bidders on the day of sale by the auctioneer. What was the description given in the adver- 1 4 Pet. (U. S.) 349. 386 DESCRIPTION OP LAND. § 422 tisement of the property in controversy ? It was described to be 'half of lot No. 4, in square No. 491,' and the other half was advertised at the same time, under the same de- scription, as belonging to Toland's heirs. What would be understood by such a description? Suppose half a square had been advertised, it having been divided into lots ; would it convey that certainty to the public, as to the precise property about to be sold, that would enable any one to form an opinion of its value? No one could suppose that an undivided half of the square was to be sold under the notice ; and which half was offered could not be determined from the advertisement. Would this be a notice under the requisites of the law ? The value of a lot, or half lot, de- pends upon its situation. If one of the half lots fronts two streets, in a populous part of the city, it is of much higher value than the other half. And this difference in value may be still greater if the lot be situated near the middle of the square, fronting the street, and it be divided so as to cut off one half of it from the street. It will thus be seen that it is not a matter of small importance to a person who wishes to purchase, to know which half of a lot is offered for sale ; and as any uncertainty in this matter must materially affect the value of the property at the sale, it is of great impor- tance to the owner that the description should be definite. That an undivided moiety of a lot may be sold for taxes, has already been stated. But would any one understand that ' one half of lot No. 4 ' means an undivided moiety ? In all cities, half lots are as common as whole ones ; and when a half lot is spoken of, we understand it to be a piece of ground half the size of an entire lot, and of as definite boundaries. The illustrations given show how great a difference in value may exist between halves of the same lot. And would not the preferable half be of much higher value than an undi- vided moiety of the entire lot ? In every point of view in which this notice can be considered, under the act of Con- gress, it was radically defective. The property should have been described as an undivided half of lot No. 4. Under such a description no one could be at a loss as to its situation and 387 § 424 THE ADVERTISEMENT OP SALE. value. The instructions of the Circuit Court on this point are not erroneous." § 423. Misdescriptioti of the taxes for vrhich the land is sold is in general fatal, whether the error be in the purpose, kind, amount,^ year for which the taxes are due,^ or of some other nature. It is held, however, that unimportant irregu- larities will not vitiate the notice,^ as, if the land is adver- tised to be sold for the taxes of three years ; when only one year's taxes are due, if the error is discovered and the land properly sold only for what is really due, the proceedings are valid.* In one case the notice recited a tax " for the purpose of making, repairing, and building bridges," whereas the tax authorized by the statute was for "making and repairing roads and building bridges." The true object of the tax not ap- pearing in the advertisement, it was held insuflScient.^ So, where the advertisement described the tax only as a " money- tax," when in fact it was a " State, county, and school tax," it was held insufiBcient.® The transposition of the sums due for State and county taxes is not an error that affects the validity of the sale.'' § 424. Where the statute requires the amount of the tax due upon the land to he stated in the advertisement, an omission of this fact, or a variance between the amount due and the sum nam^d in the advertisement, will be fatal. Thus, in Washington v. Pratt,^ where the act of Congress required the collector to state in his advertisement of the sale "the amount of taxes due thereon," and further pro- vided that such lot only upon which "two years' taxes re- main due and unpaid" shall be sold, the facts were, that several lots were separately assessed to the same person, and the advertisement stated the aggregate amount of taxes 1 § 418. 2 § 419. 8 Thweatt v. Black, Ex'r, 30 Ark. 732 (1875); Ogden ». Harrington, 6 Mclean, 418 (1855); Hodgson v. Burleigh, 4 Fed. K. 111. * Thweatt v. Black, Ex'r, 30 Ark. 732 (1875). * Langdon v. Poor, 20 Vt. 13. « Pierce v. Richardson, 37 N. H. 306, 314. ' Scott I'. Watkins, 22 Ark. 556. « 8 Wheat. (U. S.) 681. 388 DESCRIPTION OP TAXES. § 424 due upon all of them ; and the sale was held illegal. John- son, J. : " The question is whether it be necessary that the advertisement should contain a particular statement of the amount of taxes due on each lot separately ; or, where sev- eral lots belonged to the same person, whether it would be sufficient to state in the advertisement the aggregate amount of taxes due on all the lots so belonging to the same per- son? This may be a very immaterial question practically, and it may not be very easy to assign a sufficient reason of policy for the one or other alternative. But what have we to do with such inquiries in cases of positive enactment? The law must be pursued, whatever be the previous steps re- quired. The difficulty here presented is grounded on the use of the words in the eighth section, 'amount of taxes.' This, in its ordinary import, expresses an aggregate of taxes ; but it is obvious that we cannot here apply that aggregate idea to a sum made up from the taxes of many lots, since this would also support the sufficiency of a publication ex- hibiting nothing more than the amount of taxes upon the whole list of lots advertised, whoever be the proprietors. Some more appropriate signification must therefore be sought for it, and this is easily found ; for when it is considered that the taxes of each are made several liens upon each, it follows that this aggregate idea can have reference only to the amount made up from the arrears of the two years, which must be due to authorize a sale. We there- fore think that the taxes of each lot ought to be severally exhibited. The operation of such a provision must be the test of its own policy. The duty is easily complied with, and the performance of it may not be destitute of practical utility." So, where the advertisement stated the tax to be four dollars and twelve cents, when it was in fact only three dollars and thirty cents, the sale was held void.^ Also, where the advertisement was required to state the amount of taxes due, and gave the sum total, including State and county taxes, a part of which was illegal, the sale was held void.^ 1 Alexander v. Ktts, 7 Cush. (Mass.) 503. « Clarke v. Strickland, 2 Curtis C. C. (U. S.) 439, 443. 389 § 425 THE ADVERTISEMENT OF SALE. § 425. An Advertisement that incorrectly states the Year for which the Tax was assessed is fatally defective^ — In Ron- kendorff v. Taylor's Lessee,^ where two years' taxes were due upon the land, namely, for the years 1820 and 1821, the adver- tisement, in describing the tax for which the land was to be sold, stated that the lot was to be sold " for taxes due thereon up to the year 1821." The Circuit Court instructed the jury that the advertisement was defective, as it " does not pur- port to advertise the said lot for two years' taxes unpaid and in arrear." But the Supreme Court held the instruction erroneous; that the designation of the tax "was sufficient; for if the taxes were due, and the property was liable to be sold for them, it can be of no importance to the pur- chaser to have a more technical description of the tax ■ than the notice contained." It may be remarked upon this case, that if a specific and certain designation of the tax due upon the land is necessary at all, it is because the owner is interested in knowing from the advertisement itself how much money he is bound to pay in order to prevent the sale of his land ; the purchaser has but little interest in the ques- tion. If this be true, it will be difficult to maintain upon principle the designation of the tax in question. The taxes were in fact due upon the land for the years 1820 and 1821. The notice says the land will be sold for the taxes due thereon " up to the year 1821." The words " up to " do not upon any fair rule of construction include the taxes for the year 1821. On the contrary, back taxes prior to the year 1821 were alone intended, as far as the language used pos- sesses any meaning. Besides, it must be remembered that the act of Congress only permitted a sale of land " on which two or more years' taxes shall remain due and unpaid ; " and it would seem that the advertisement ought, upon its face, to notify owners and bidders that a power of sale had actually attached at the time of its publication. But, on the other hand, in a proprietary tax, where an equal sum is assessed » Knowlton v. Moore, 136 Mass. 32 (1883). » 4 Pet. (U. S.) 349. 390 TIME AND PLACE. § 427 upon each proprietor, it is sufficient to state in the notice the gross sum due upon the whole tract held in common.^ § 426. Time of Sale. — It is also essential that the adver- tisement should name the time certainly when the sale will take place.2 § 427. Place of Sale. — The advertisement should also state the place where the sale is to be made.* Failure to state the place of sale* or the statement of a wrong place avoids the sale.^ But where the advertisement, in describing the place of sale, said, " at the court-house in Warren," but omitted the words " Trumbull County," it was held sufficient ; the court taking judicial notice of the fact that at the date of the advertisement there was no town of Warren in Ohio, ex- cept that in Trumbull County.^ Where a statute required the auditor-general to publish e£ich year a statement of the lands liable to be sold for taxes, and a notice of their sale, " at such public and convenient place, at the seat of justice of the county, as the county treasurer may select," and the auditor- general's advertisement followed the words of the statute, without fixing any locality, this was held a sufficient com- pliance with the statute ; and a notice by the county treasurer posted at the court-house, county treasurer's office, and other public places,^ at the county seat a week before the day of sale, was a reasonable and sufficient notice, if any notice at all was 1 Went worth v. Allen, 1 Tyler (Vt.), 226. » Wilkins's Heirs' Lessee v. Huse, 10 Ohio, 139; Matter of Tax Sale of Lot 172, 42 Md. 201 (1874). » See Prindle v. Campbell, 9 Minn. 212. * Henderson v. White, 5 S. W. 374 (Tex. 1887). « Richards v. Cole, 31 Kan. 206 (1884). « Sheldon's Lessee o. Coates, 10 Ohio, 278; Blalock v. Gaddis,33 Miss. 452. ' Under a statute requiring the posting of an advertisement in a " public place," it was held that where the place was unincorporated and uninhabited it was unnecessary to post any notice. " Lex non cogit ad im- possibilia." Wells v. Burbank, 17 N. H. 393; Wells v. Jackson Iron Co., 47 id. 255; see also Russell v. Dyer, 40 id. 173; Cahoon v. Coe, 52 id. 518, 525. The certificate of the sheriff that the notice was "posted up according to law " does not show that it was duly posted. Wells v. Bur- bank, supra. 391 § 429 THE ADVERTISEMENT OP SALE. required, as to which, qucere.^ A notice that omits to name the place of sale is defective, and the sale will be set aside if challenged before the running of the statute of limitations.^ But in Michigan the Eevised Statutes did not require the nam- ing of a definite place.^ The place of sale must be definitely stated in the notice. This is of the essence of the purpose of the notice ; and an advertisement that the sale will be at the court-house door, or at " such other place as may hereafter be designated," is fatally defective.* A notice of sale at the front door of the court-house, instead of at the treasurer's office as required by law, and without evidence that the treasurer's office is in the court-house, is void.® § 428. The Notice must state that the Sale is to be at Public Auction. — When the notice states that the treasurer will " offer for sale " certain land, instead of saying he will " offer for sale at public auction," the sale is open to attack by the proper party within the statute of limitations, but is valid until set aside in some proper proceeding by some competent author- ity. It is voidable only, not void.* Presumptively the sale was regular. " The only practical effect of such an omission is to extend the original owner's right to redeem his land for the period of five years after the tax deed is executed and recorded. This doctrine would seem equitable as to all parties.'^ § 429. The Name of the Owner. — In some jurisdictions the name of the owner, if known, must be stated in the advertise- ment ; in others this is immaterial. Where the law requires the collector to state in the advertisement the names of the owners, if known, an omission to do so will invalidate the sale.' If the name of the owner is unknown, then a more 1 Clark V. Mowyer, 5 Mich. 462 ; Wisner v. Davenport, Id. 501 ; see Miles V. Walker, 4 id. 641. " Corbin v. Young, 24 Kan. 200 (1880) ; Russell v. Hudson, Id. 571. ' Clark V. Mowyer, 5 Mich. 464. * Matter of Tax Sale of Lot 172, 42 Md. 201 (1874). 6 Richards v. Cole, 31 Kan. 206 (1884). « Belz V. Bird, 31 Kan. 141 (1883). ' Hafey v. Bronson, 83 Kan. 600 (1885). * Shimmin v. laman, 26 Me. -228; Washington v. Pratt, 8 Wheat. (U. S.) 681. 392 NAME OP OWNEB. § 429 accurate and certain description of the lands will be exacted from the collector than in ordinary cases. This was held under a statute which required the name of the owner to be inserted, if known, otherwise a substantially accurate descrip- tion of the land.^ The evident object of the statute is to give the owner every facility, in the ascertainment of his delin- quency, which his own name and a description of his property can afford to him, upon an inspection of the notice ; and the courts ought to be as strict in requiring the statute to be fully complied with in this respect as in reference to any other prerequisite. It has been held, however, in one case, that a misnomer of the real owner will not invalidate the sale.^ This case does not seem to be consistent with principle, or in conformity with the adjudged cases. But in this case the name of the real owner was not known, and the statute provided how, in such case, the land should be described, which was fuUy complied with; and the court said, "As the notice would be good without any name, we cannot perceive that the insertion of the name of the former owner can vitiate it." But in a later case before the same court, when the land was taxed to William S. Homer, and in the advertisement of the sale he was called Senry S. Homer, the sale was held invahd, neither of said persons being either the legal owner or the tenant in possession.^ Where the statute requires the name of the owner to be given, to whom the property is assessed, and tiiat is duly fulfilled, the sale is valid, although such person was in fact dead when the tax was levied; the statute having provided that a mere failure to assess the tax in the name of the lawful owner shall not make the sale void.* In Alabama, the notice is required to show the name of the owner when known, and an advertisement giving a wrong name renders 1 Farnum v. BufEum, 4 Cnsh. (Mass.) 260, 266; and see Sutton v. Calhoan, 14 La. Ann. 209. * Alvord t>. Collin, 20 Kck. (Mass.) 418; see Sargent r. Bean, 7 Gray (Mass.), 125; Daily v. Newman, 14 La. Ann. 580. * Sargent v. Bean, 7 Gray (Mass.), 125. 4 Holroyd v. Pumphrey, 18 How. (U. S.) 69. 393 § 430 THE ADVERTISEMENT OP SALE. the sale void.^ A rigid adherence to the statute is necessary. In Kansas, under the curative laws the omission of a known owner's name in the notice is regarded as an irregularity that is not of the substance, and not fatal.^ An advertisement of sale in the name of one not the owner is no notice to the owner.* Where a statute required the advertisement to state "the name of the person as whose property it was taxed," an advertisement merely stating that it " was entered " by Edward Whitehead is not suflBcient. It does not aver that it was assessed as his property, or that he was chargeable with the taxes in arrears thereon.* § 430. Period of Publication. — The notice must be pub- lished for the full length of time and at the intervals required by law, or it will be void. To use the language of Judge Wayne, " Property is liable to be sold on account of an undischarged obligation of the owner of it to the public or to his creditors. But it can only be done, in either case, where there has been a substantial compliance with the prerequisites of the sale, as these are fixed by law. Any assumption by the officers appointed to make the sale, or disregard of them, the law discountenances. He may not do anything of himself, and must do all as he is directed by the law under which he acts. He may not, by any misconstruction of it, anticipate the time for sale within which the owner of the property may prevent a sale of it by paying the demand against him, and the expenses which may have been incurred from his not having done so before. This the law always presumes that the owner may do, until a sale has been made. He may arrest the uplifted hammer of the auctioneer when the cry for sale is made, if it be done before a hona fide bid has been made."^ In Georgia, an innocent pur- chaser is protected from irregularities in the time of adver- tising the sale.^ 1 MUner v. Clarke, 61 Ala. 260 (1878). " Shoup V. C. B. U. P. R. Co., 24 Kan. 564 (1880). ' Hume V. Wainscott, 46 Mo. 145, aflirmiiig Abbott v. Lindenbower, 41 Mo. 162. * Styles V. Weir, 26 Miss. 187. s Early v. Doe, 16 How. (U. S.) 610. » Morris t;. Davis, 75 Ga. 169 (1886). 394 PEEIOD OF P0BUCATION. § 431 § 431. Thus, where the notice was required to be published " once a week for at least twelve successive weeks," and the first insertion was on Aug. 26, 1848, and the time fixed for the sale was November 15, in the same year, the sale was held illegal, only eighty-one days intervening.^ So, where the law required four weeks' notice, and the proof was the publi- cation eleven days prior to the sale, it was held illegal.^ The certificate of a printer that the notice given by the county commissioners, in reference to taxes due and unpaid, was published for thirty days, beginning Feb. 21, 1869, is not suflBcient proof that the notice was published " once a week for four weeks," as required by Art, 81, § 66, of the Code. The proof in this respect must be affirmative and certain, and not left to conjecture and inference. It may have been in- serted only every other week, and yet published the number of days staled in the printer's certificate.^ And under a statute requiring the first publication of notice of a tax sale, in a newspaper, to be eight weeks prior to the day of sale, the printed date of the newspaper is generally to be regarded as the date of its publication ; and evidence tending to prove that the paper was in fact actually printed and ready to be delivered on the afternoon of the day previous to such printed date, and was actually delivered to the subscribers in the village where the paper was published that afternoon or even- ing, and that the rest was left in the post-office that night directed to the other subscribers, and went out in the mail the next morning, that the whole edition was about 400 or 500, and from 60 to 75 for the village subscribers, was not competent to show that the paper was published the day before its date.* Where the law required " ninety days' notice," and the advertisement was dated November 1, and on that day handed to the publisher of the newspaper, and was inserted therein weekly, from November 6 untU the 29th day of January following, and the sale took place on the 1 Early v. Doe, 16 How. (U. S.) 610. « NaUe's Rep. ... Fenwick, 4 Rand. (Va.) 585, 594, 595. » Prince George's County Com. o. Clarke, 36 Md. 206. 4 SchofE V. Gould, 52 N. H. 512. 395 § 434 THE ADVEBTISEMENT OP SALE. third day of February ensuing, being the day fixed in the notice, the sale was held illegal. It will be perceived that between the date of the advertisement and the day of sale there were more than ninety days ; but between the date of the first insertion and the day of sale there were but eighty-nine, ex- cluding, as the court did, the first, and including the last day.^ § 432. Another statute of Alabama required three months' notice of the time and place of selling resident lands by pub- lication in a newspaper. In Scales v. Alvis ^ it appeared that the collector advertised on January 4 that a sale of the resi- dent lands would take place on February 1 ensuing ; discover- ing the error, he changed the time of sale to April 1, altered his advertisement after it had been published one month, and gave notice to the delinquent, who consented to the irregular- ity; yet the sale was held void. § 433. The Provincial Act of 26 Greo. U. required forty days' notice of the sale of the interest of delinquent proprie- tors. The proprietary tax, for which the land was sold, was voted only thirteen days before the date of the tax deed. The sale was made in 1780, and the question as to the regularity of the sale arose in 1833. The court, with every desire to uphold a transaction so ancient, held the sale void, as it was utterly impossible that the notice required could have been given under these circumstances.^ § 434. The charter of New Orleans required three months' notice of the sale by several insertions in a newspaper, but was silent as to whether the notice should be published three months immediately preceding the sale. The advertisements were inserted in the months of December, February, and March, omitting altogether a notice in the month of January. The sale took place April 7, in pursuance of the notice ; but it was declared void, the court holding that the statute evi- dently meant that the notice should be inserted during the three months immediately preceding the day of sale, other- wise the notice might be given at any time the corporation 1 Fope V. Headen, 5 Ala. 433; see EUiot v. Doe d. Eddins, 24 Ala. 509. " 12 Ala. 617. ' Farrar v. Eastman, 10 Me. 191; s. c. 5 Me. 345. 396 PERIOD OP PUBLICATION. § 435 pleased, and at such great intervals of time as to render nu- gatory nearly all the objects to be attained by advertising.^ But in Bussey v. Leavitt,^ where the statute required " three successive publications in a newspaper three months prior to the sale," the court held that the last insertion must be three months prior to the sale. The statute of Ohio required the delinquent list and notice of sale to be pubUshed at least four weeks "between the first days of October and December;" and the law further provided that the county auditor " shall, before the day of sale (which was fixed on the last Monday in December) mentioned in such notice, record in a book to be provided for that purpose, such delinquent list and notice, copying the same from the paper in which they shall be pub- lished, and shall certify at the foot of said record the name of said paper, and the length of time such list and notice were published therein." § 435. In Kdlogg'8 Lessee v. MeLaugMin ^ the plaintiff, in support of his tax deed, offered in evidence the record of the list and notice, with the certificate of the auditor attached thereto, which latter stated that the list and notice had been published " four weeks between the first Mondays of October and December." He also offered parol evidence to show that the advertisement was published between the first days of those months. But the court held (1) That the record was insufficient upon its face to prove a legal advertisement ; and, (2) That parol evidence was inadmissible to aid it. This latt«r ruling is in conformity with the principle established by all the authorities, that an advertisement in this class of cases must be valid upon its face, and that, if otherwise, extrinsic evidence cannot be admitted to explain or help it.* " The object of giving notice," remarks Judge Scates, in the last-named case, "I think would be completely defeated if such evidence could be admitted to correct the mistake (in the date of the advertisement), unless the party would bring that explanation home to each person in interest, and also > Delogny v. Smith, 3 La. 418. * 12 Me. 378. » 8 Ohio, 114. ♦ Alvord o. Collin, 20 Pick. (Mass.) 418; Fitch v. Pinckard, 5 111. 69. 397 § 437 THE ADVERTISEMENT OP SALE. show that the public were apprised of the mistake, and did attend the sale, so as to insure competition at the biddings. Sales might be conducted under such defective notice, and the party be able to show it to be a mistake, and what the true intention was, still the public might not be apprised of it ; the purchaser might, as is said by the court in Ohio,^ ' obtain acres for cents' without competition, the taxpayer have his land sacrificed for a trifle, and yet the purchaser sustam his purchase by showing what the collector intended, or that the printer had made a mistake. There is too much uncer- tainty ; the mischief would be irreparable. The object is to secure competition, for the benefit of all concerned; and if the notice is so defective as not to give the proper informa- tion, the sale will be void. This secret information or intent of the publication cannot aid it." § 436. The statute of Indiana provided that a " county auditor shall, on the first day of October annually, make out and record a list of delinquents, and cause a copy of such list to be immediately published four weeks successively in some newspaper having a general circulation in his county, if any there be, otherwise by three notices to be posted up In public places in each township in his county ; " and the law further required the sale to take place on the first Monday in Janu- ary. In Doe d. Strong v. Flagler^ the facts were, that the publication was not made until November 20 ; a mistake was then discovered, and an amended notice inserted November 27, and this last list was published in the " Evansville. Jour- nal," on November 27, and on December 4, 11, and 17. It was contended by the counsel for the tax purchaser, that in- asmuch as four weeks' notice of the sale was given, there was substantial compliance with the law, but the court held the proceedings void ; that the term " immediately " meant a publication as soon after October 1 as the same could be reasonably effected ; that in this case there was a delay of fifty days on the part of the auditor, and no reason shown for it. § 437. The statute of Illinois gave to delinquents until 1 Hughey's Lessee v. Horrel, 2 Ohio, 231, 233. " 1 Ind. 542. 398 PERIOD OP PUBLICATION. § 438 October 1 to pay their taxes, and directed the State auditor to advertise the delinquent list three weeks successively, the last publication to be at least sixty days before the day of sale. Where the sale was made on Dec. 9, 1823, it was held void.^ In all cases where it appears upon the face of the tax deed, when taken in connection with the law, that the full notice required has not been given prior to the sale, the deed is held void for all purposes.^ § 438. Once a Week. — In Eonkendorff v. Taylor's Lessee,* where the law required the advertisement to be inserted " once a week for three months," the facts were, that the first notice was given Dec. 6, 1822, and the last, March 10, 1823. The sale took place on the latter day. These periods embraced the time the notice was required to be pub- lished ; but it appeared on inspection of the newspaper in which the notices were published, that between three of the publications there was an interval of eight, ten, and eleven days respectively. It was contended by the counsel for the former owner that " once a week " meant once in every seven days. On the other hand, it was insisted that when a time is fixed for the performance of an act, the whole time is allowed within which to do it, even to the last minute ; that the requi- sition to publish once a week gave the whole week succeeding the first insertion for the second publication ; that the law did not designate on what particular day in the hebdomadal division of a week the advertisement should appear ; that the name of the day of the week on which the advertisement should be inserted was of no moment, as the names of the days of the week were purely arbitrary ; that it was the period of seven days which the law regarded as the space of a week ; and in this case, as there was no period of fourteen days in which the notice of the sale was omitted, the advertisement was regular. Judge McLean, in delivering an opinion sus- taining the legality of the advertisement, say^ : " The words 1 Moore v. Brown, 4 McLean C. C. (U. S.) 211; s. c. 11 How. (U. S.) 414. * Moore v. Brown, 11 How. (TJ. S.) 414 ; Farrar v. Eastman, 1 Fairf . 191. » 4 Pet. (U. S.) 349. 399 § 439 THE ADVERTISEMENT OP SALE, of the law are, ' once a week.' Does this limit the publica- tion to a particular day of the week ? If the notice be pub- lished on Monday, is it fatal to omit the publication until the Tuesday 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. By this construction the notice in the case must be held sufficient. It was published Monday, January the 6th, and omitted until Saturday, January the 18th, leaving an interval of eleven days ; still, the publication on Saturday was within the week succeeding the notice of the 6th. It would be a most rigid construction of the act of Congress, justified neither by its spirit nor its language, to say that this notice must be pub- lished on any particular day of a week. If published once a week for three months, the law is complied with, and its object effectuated." § 439. In Cass v. Bellows ^ the statute required the adver- tisement to be published " three weeks successively." The first publication was on Saturday, November 2, that being the usual day of publication ; which was subsequently changed to Tuesday, and the second publication was on Tuesday, No- vember 12, that being the next issue of the paper, and the third publication was on the following Tuesday, November 19. It was held that the statute was substantially complied with. " Publication for three successive weeks means a publica- tion for twenty-one days, and not simply three insertions in a weekly newspaper which would ordinarily cover a period of but fifteen days." ^ Where the law required notice to be published three times for three succeeding weeks, a publica- tion on Friday, May 6, and again throughout the succeeding week, and then on each of the first three days of the third week, was sufficient,^ and a publication on the 7th and 14th is a publication for " two successive weeks." Where the pub- lication is in a weekly newspaper, it is not required that it 1 21 N. H. 501; and see Bachelor v. Bachelor, 1 Mass. 256. « Loughridge v. Huntington, 56 Ind. 260. « Andrews v. People, 83 III. 531 (1S76). 400 ^ PUBUCATION. § 442 should be for " two full weeks." ^ The requirement of notice is mandatory, and must be strictly complied with. A law re- quiring publication " once in each week for four successive weeks prior to the second Tuesday of May " is not complied with by publication " for five weeks successively " from April 9 to May 7.^ § 440. The notice must be given for the full period fixed by law.3 If the oflBcer can shorten the time a day or an hour, he can diminish it to any extent he may see fit. When notice is to be published daily (Sundays excepted) for five days, a publication beginning Wednesday and ending Sunday is bad ; the "last should have been on Monday.* A publication on Sunday is no notice. Sunday is not a judicial day. Such publication is itself a violation of law, and no citizen is bound to read or take notice of it.^ § 441. Fublicatdon in Several Languages. — Where the law requires the advertisement to be published in several lan- guages, — for instance, in English and French, or English and German, — the neglect of the collector to comply with this requisition will render the advertisement illegal, and the sale founded thereon void.* § 442. Alteration in the Name of the Town. — The strict- ness required in regard to the notice of the sale is very strongly illustrated by the case of Porter v. Whitney,'^ which was a writ of entry, where the tenant claimed under a tax sale made twelve, years prior to the trial. The facts were, that the sale was made by the collector of Brownfield for the non-payment of taxes assessed by that town, that the 1 Ricketts v. Hyde Park, 85 HI. 114 (1877); Garrett v. Moss, 20 id. 554 ; Madden v. Cooper, 47 id. 359. = Ramsay ». Hommel, 31 N. W. 271 (Wis. 1887); 68 Wis. 12; Mor- ris V. Miss. River Logging Co., 31 N. W. 483 (Wis. 1887); 68 Wis. 133. » Caston V. Caston, 60 Miss. 475 (1882). * Alameda Co. v. Hnff, 57 Cal. 331 (1881); San Francisco v. McCain, 50 id. 210 (1875); 51 id. 361 (1876). 6 Ormsby v. LouisviUe, 79 Ky. 197 (1880). ^ Young's Lessee v. Martin, 2 Yeates (Pa.), 312; Delogny e. Smith, 3 La. 418. '' 1 Me. 306. VOL. I. — 26 401 § 443 THE ADVERTISEMENT OP SALE. land demanded was formerly a part of the town of Porter, and was annexed by law to Brownfield within three years next before the time of advertising the sale, but the name of Porter was not expressed in the advertisement. The statute declared that " when the name of the place in which such lands lie may have been altered by any act of this common- wealth within three years next preceding such advertise- ment, he (the collector) shall express not only the present name, but the name by which the same was last known." The sale was held illegal. Mellen, C. J. : " The object which the legislature evidently had in view in this enactment was to give effectual notice to all concerned, and prevent any misconception by such an alteration in the name of the place as would essentially alter its description. We ought therefore to give such a construction to the law as to attain, as far as may be, the object in view. The advertisement described the land as situate in Brownfield ; it should have been more particular, and stated that it was situate in that part of Brownfield which was formerly a part of Porter, and which had been annexed to Brownfield. This would have put the proprietor on his guard, and prevented all mistake and damage." Where the law requires the advertisement to be inserted in two or more papers, it is essential that the notice should be inserted in all of them, or the sale will be void ; the reason is, that the spirit of the law requires the greatest possible amount of notoriety to be given of the time and place of sale, with a view of giving full notice to the delinquent, and for the further purpose of insuring a greater competition at the biddings.^ § 443. Posting in a Public Place ; ^ Notice in open Court : * Recording of the Advertisement.^ — The statute of New Hamp- shire required notices of the sale to be posted in public places for at least eight weeks prior to the day of sale, and an affidavit of the fact that the law had been complied with in this respect, but was silent as to who should make the 1 Hughey's Lessee v. Horrel, 2 Ohio, 231; Allen v. Smith, 1 Leigh (Va.), 231. 2 § 443-446. 8 § 447. 4 § 447.449; gee § 414. 402 POSTIKG. § 445 affidavit, and as to the contents of it. In Nelson v. Pierce ^ the evidence of the posting of notices of sale was a sworn certificate of W. Kenney, who was the occupant of the public house where the notice was posted. The certificate was in these words : " Bethlehem, Jan. 7, 1829 : I hereby certify that the advertisement of non-resident lands for the year 1828, hereto annexed, has remained posted up in my bar-room, in said Bethlehem, more than eight weeks prior to this date. W. Kehney." The notice was held not to be suffi- ciently proved, (1) Because it was doubtful whether the affidavit could be made by any other person than the collec- tor, whose duty it was to post the notices ; and (2) Because the certificate did not state when the notice was first posted. On this latter point the court say : " It is not enough that it states the advertisement to have been posted up more than eight weeks. We cannot know how he computes time in such a case. The affidavit should state the day when the advertisement was put up, and then we can see whether it was put up in due season." § 444. The statute of Connecticut authorized the notice to be given by posting it on the sign-post of the town, — a place where it is lawful, by the custom of that State, to post all legal notices, — a place where all persons interested are in the habit of resortiug for information in cases where a legal advertisement is required to be given.^ § 445. In other States the law requires a notice to be posted in a " public place." ^ Where such is the requisition, » 6 N. H. 194. « Ives v. Lynn, 7 Conn. 505. * For a definition of the words "public place," see also Austin v. Soule, 36 Vt. 645; Alger v. Curry, 40 id. 437, 448. Where, to rebut a tax deed which was prima facie evidence of the regularity of the proceed- ings, the defendant produced in evidence the county treasurer's notice of sale, and the affidavit of the posting of the same, which stated that, etc. , affiant posted up the notice " in four public places in said county," but did not state that one of said copies was posted in some conspicuous place in the treasurer's office, as required by the statute, it was held that the affi- davit produced must be regarded as prima fade the only affidavit on that subject; that the prima facie evidence of the deed was thus rebutted ; and that the defect thus shown in posting the notices rendered the deed 403 § 446 THE ADVERTISEMENT OP SALE. the courts are extremely strict in requiring proof that the place of posting was in fact a public place of resort, cal- culated to give all the notoriety to the sale which the law evidently contemplated.^ Failure to post a notice in a public place ten days before sale has been held fatal.^ An inn and a post-oflBce are prima facie public places.^ § 446. In Cambridge v. Chandler the town where the land lay was unorganized and uninhabited,* and the ad- vertisement was posted on a board, fixed in the sand, by the side of the Androscoggin River ; this was held not to be a public place within the meaning of the law. And in Tidd v. Smith the notice was posted on the 11th day of January, 1820. The sale was fixed for March 9, 1820. The law re- quired three successive weeks' notice. The notice remained up for the requisite time. When first posted, the place where it was put up was a public place ; namely, a tavern, — but on the 18th day of that month it ceased to be a tavern, but the innkeeper remained in the building, and carried on the business of a shoemaker in the identical room where the notice was posted; and the proof was that many persons void. Jarvis v. Silliman, 21 Wis. 599 ; Iverslie v. Spaulding, 32 id. 394. And where the affidavit of the treasurer is thus defective, the fact that the treasurer did in fact post three of said notices in the county, and one in the most public place in his office, as the law directs, cannot be shown by parol at the trial of an action involving the validity of the tax title, as this would defeat the object of the statute in requiring such affidavit to be filed and preserved in the office of the clerk of the board of supervisors. Iverslie v. Spaulding, supra. 1 Pierce v. Sweetser, 2 Ind. 649 ; Cambridge Prop. v. Chandler, 6 N. H. 271 ; Tidd v. Smith, 3 id. 178. A notice of sale for non-payment of taxes, set up "at the court-house door, and at three other of the most public places in the county," is a sufficient compliance with Art. 81, § 59, of the Code, requiring that the notice shall be put up " at the court-house door, and at the most public places in such county." It is not required that the notice should be put up at all the most public places in the county. Prince George's County Com. v. Clarke, 86 Md. 206. 2 Cummings v. Holt, 56 Vt. 384 (1883). ' Hoitt V. Burnham, 61 N. H. 620 (1882). * That an advertisement of sale need not be posted in an uninhabited and unincorporated place, see Wells v. Burbauk, 17 N. H. 393 ; Wells v. Jackson Iron Co., 47 id. 255. 404 RETURN, RECORD, ETC. § 447 frequented the shop for several weeks after the innkeeper turned shoemaker. The court held that the place ceased to be a public one after the 18th day of January, and that con- sequently the sale was illegal. In some of the States a per- sonal notice to the owner is required before a sale of his land is authorized; where this requirement has not been complied with, the sale has been held void.^ § 447. There is a statute in North Carolina ^ which requires that " the sheriff shall, at the term of the County Court next preceding the day of the sale for taxes, return a list of the land, upon which the taxes are unpaid, and which he pur- poses to sell for taxes, therein mentioning the owner of each parcel, and if the owner be unknown, the name of the last reputed owner, and the amount of the tax due thereon ; and that the list shall be read aloud in open court, a copy re- corded by the clerk upon the minutes of the court, and that a copy shall be set up by the clerk during the term in the court-room." In Doe d. Kelly v. Craig ^ these requirements were not complied with, and the sale was held void. Ruffin, C. J. : " It seems to us that this provision is not merely directory, but that it is to be observed by the sheriif as a part of his duty, and as far as respects the making of the return and having it recorded, it is essential to his authority to sell the land. It was known that notice by advertisement was a very uncertain method of informing the owner, and especially of unlisted property, that his land was to be sold ; and more- over, that on account of the difficulty of a purchaser proving the advertisement at remote periods, and of the necessity, nevertheless, of supporting fair purchases, the courts had held that sales made without advertisement, and without the knowledge of the owner, should stand, notwithstanding the prejudice that might arise to the owner. The intention of the act of 1819 was to provide a more certain or probable notice to the owner, of the intended sale of his land, and of the reason therefor, by requiring it to be given in open court, 1 Moulton V. Blaisdell, 24 Me. 283; Brown v. Veazie, 25 id. 359; Wil- liams V. Peyton's Lessee, 4 'Wheat. (U. S.) 77; Bishop v. Lovan, 4 B. Mon. (Ky.) 116. = 1819. » 5 Ired. (N. C.) 129. 405 § 448 THE ADVEETISEMENT OP SALE. at the term next preceding the sale, and to be recorded so that the rumor thereof, at least, might reach him, and that upon investigation he might find at a known place a perma- nent and certain evidence of the truth of the matter. So, too, the bidders cannot be deceived by any false report, as they can respecting advertising in the country, or in a newspaper, as the evidence is of record, and at home, and if they choose to look, they must know whether the sheriff has done his duty by the owner or not. If he has not, his sale ought not to pass the title more than if it was by private contract, or was not made at the court-house, or on a wrong day of the week ; in all which cases the wrongful conduct of the officer must be known to the bidder, and therefore his purchase ought not to stand. Indeed, the proceeding, directed by the act of 1819, is very much in the nature of a judgment ; and a purchaser can as readily search for and find the one of record as the other, and therefore there is as little reason to dispense with the one as the other. The legislature meant to give the citizen an effectual protection against surprise in the sale of his land for taxes, but at the same time to do so without exposing bidders to the danger of paying their money and not getting the benefit of their purchases, provided they would take the reasonable and not inconvenient precaution of availing themselves of the means provided for informing themselves whether the sheriff had a, right to sell or not. No person can be hurt by this construction but one who wil- fully keeps his eyes shut against the light the law supplies to him. We think the sale to the lessor of the plaintiff was therefore radically defective, and passed no title." § 448. This was a peculiar statute, and its provisions, in one respect, somewhat analogous to the proclamations of a fine under the old English statute; and the fact that the court required a strict compliance with its provisiofas is one of the very strongest illustrations of the degree of strictness exacted in the giving of every notice of sale which the legislature have seen proper to prescribe in this class of cases. Proof of the advertisement depends upon the same general princi- ples which relate to the other prerequisites of the law. The 406 BECOED. § 449 onus probandi rests upon the purchaser at the tax sale, or those claiming under him.^ The deed is not prima facie evi- dence that the sale was duly advertised.^ Where the law requires the advertisement to be recorded, the record alone can be resorted to for the purpose of determining its exist- ence and sufficiency. Parol evidence is inadmissible to supply any defect in the record, or to explain any uncertainties that may exist in it. And the coui-ts are strict in requiring a rigid adherence to the requisitions of the law, as to the contents of the record ; it must conform to the statute in all respects. I 449. Recording of the Advertisernent? — In those States where the law requires the 'advertisement to be recorded, this strictness is maintained, upon the ground that the evident ob- ject of the law is to perpetuate the evidence of the notice by matter of record, for the common benefit of the purchaser and former owner ; that the introduction of parol evidence in aid of the record thus required to be made would defeat the policy of the law.* The statute of Illinois requires the certifi- cate of publication to be recorded, and the question has several times been raised upon the circuit and in the Supreme Court as to the validity of the proceedings where the clerk has omitted his duty in this respect; but the cases have been determined upon other points, so that it is still an open ques- tion in that State.^ The manifest object of the statute is, to show upon the face of the record the jurisdiction of the 1 Ante, Chap. m. » Garrett ». Doe d. Wiggins, 2 El. 335; Kinney v. Beverley, 2 Hen. & M. (Va.) 318, 331; see Elliot v. Doe d. Eddins, 24 Ala. 508. » See §§ 414, 447, 448. * Culver V. Hayden, 1 Vt. 359 ; Coit v. Wells, 2 id. 318; Clark v. Tucker, 6 id. 181; Spear v. Ditty, 9 id. 282; Isaacs v. Shattuck, 12 id. 668; Carpenter v. Sawyer, 17 id. 121; Jndeyine v. Jackson, 18 id. 470; Langdon v. Poor, 20 id. 13 ; Taylor v. French, 19 id. 49 ; EeUogg v. Mc- Laughlin, 8 Ohio, 114. 5 But see Dukes v. Rowley, 24 HI. 210, 221. It need not appear of record that the person who signed the certificate of publication was the publisher of the newspaper in which the advertisement appeared; that fact will be presumed to have been proved before judgment for a sale was ordered. Dukes ». Rowley, 24 HI. 210. Where the statute (1 R. S. 931, § 76, 5th ed.) required the town clerk to give notice at town meeting 407 § 450 THE ADVERTISEMENT OP SALE. court, and to perpetuate the evidence that the sale was duly advertised. It concerns the former owner and the purchaser at the tax sale, and it would seem upon principle and author- ity that such a requirement can in no sense be regarded as merely directory to the clerk; but that it is one of those peremptory provisions which cannot be dispensed with with- out invalidating the entire proceedings, — defeating the juris- diction of the court and the power of the collector to sell the land. § 450. Evidence of Notdoe.^ — Ordinarily no presumption will be indulged in for the purpose of supplying the omission of proof in relation to the publication of the advertisement ; ^ though in support of an ancient possession it may be per- mitted. This, however, will be examined more at large here- after. But the law is not only well settled, but apparent to every one, that no presumption can be indulged in to supply a defect which appears upon the face of the advertisement.^ The date of the advertisement is prima fade evidence as to the time when it was made and published.* But where a notice of sale, and the paper itself which contained it, were dated in 1836 instead of 1837, and parol evidence was offered to prove the mistake, the evidence was held incompetent.® The reasoning in support of this decision of the court has al- ready been given. Failure of the county treasurer to make affidavit of the fact of printing the list and notice of sale does not invalidate the sale.® Where the printer failed to affix his affidavit of publication to the copy of the newspaper containing that lists of the land advertised for sale by the comptroller for unpaid taxes had been deposited in his office, it was held that this was a directory requirement, and that if the prerequisites to the comptroller's power to advertise the land for sale existed, the omission of the clerk to give such notice would not, at least as against a wrong-doer, invalidate a sale. Pierce v. HaU, 41 Barb. (N. Y.) 142; see also Noland ». Busby, 28 Ind. 154. 1 See §§ 443-449. « Allen w. Smith, 1 Leigh (Va.), 231. » Farrar v. Eastman, 10 Me. 191 ; Porter ». Whitney, 1 id. 306. * Langdon ». Poor, 20 Vt. 13. 6 Fitch V. Pinckard, 5 HI. 69, 81. 6 Stout V. Coates, 35 Kan. 382 (1886). 408 EVIDENCE. § 452 the list, which had to be filed in court at the time of judg- ment, but the judgment averred that the collector had given due notice, the deed was good.^ The law made a tax deed conclusive evidence that everything had been done, the omis- sion of which would have been nothing more than an irregu- larity in procedure. An affidavit of notice of sale which faUs to show the mode of service is fatally defective.^ § 451. Waiver of Irregularity by the p-wner. — It may be stated as a general rule, that where an advertisement is illegal in any respect, the consent of the owner, having notice of the irregularity, cannot confer authority upon the officer to pro- ceed with the sale. He derives his power from the law, and not from the owner of the land, and he must strictly con- form to all its requisitions.^ § 452. The Law as to Notice held Directory. — In North Carolina it has been held that failure of the officers to give notice could not prejudice an innocent purchaser, but would only make the officers liable. In Martin v. Lucey* the plaintiff claimed under a grant, and the defendant under a tax sale. The case came before the court upon this question : " Whether the defendant was bound to show any other evidence of title than the tax deed, etc." The law of 1796 provided " that it shall not be lawful for any of the sheriffs in this State, either by themselves or deputies, to sell lands for taxes, until the same hath been first advertised in the North Carolina Journal, the State Gazette, and Fayettville Minerva, for the space of one month, and also in the county in which they are situated, in manner as heretofore required by law; which advertise- ment shall mention the situation of the lands, the streams near which they lie, the estimated quantity, the names of the ten- ants, the reputed owners, etc." And the law of 1792 further provided that " such conveyance shall be good and valid in law, the land so sold being first advertised for such length of 1 Raley v. Gninn, 76 Mo. 263 (1882); Norton and Eay, JJ., dissent- ing on the ground that the court had no jurisdiction to enter judgment without the certificate of the printer. 2 Davis V. Gossnell, 113 HI. 121. » Scales V. Alvis, 12 Ala. 617. * 1 Murphy (N. C), 311. 409 § 452 THE ADVERTISEMENT OP SALE. time as is required in cases of execution." The court an- swered the question certified in the negative. Wright, J. : " It is believed that tihis act (1796) was intended to impose no additional duty on the sheriffs, and that the provisions of this as well as the other act (1792) are merely directory to them of their duty ; and that although a failure in the per- formance of any part of it might subject them to an action in which they would be compelled to indemnify the owner of any land which might be irregularly sold to the extent of the in- jury sustained by such sale, yet it ought not to destroy the title of the purchaser, who has the right to presume that a public officer, known to possess the power to sell, has taken every previous step required of him by the law under which he sells. This construction appears to be in conformity with the decisions in cases of sales made of land by sheriffs, under writs of execution, which are analogous in principle to cases of sales for the non-payment of taxes, etc. To require proof of the advertisement would so embarrass sales of this kind, and throw so many difficulties in the way of persons willing to bid a fair price for the land, that they would not be willing to purchase ; for it would not only be necessary to prove these facts on any particular occasion, but they must preserve the evidences of them with their titles, to be used at any distant period, whenever these titles might be made the subject of controversy. The consequences would be, that not only the difficulty of collecting the public revenue would be increased, but the land would become a subject of speculation merely to those who would, by purchasing at very reduced prices, be willing to encounter the inconveniences and risks of pur- chases under these embarrassing circumstances." The argu- ment of M'Bryde, counsel for the defendant, will throw some light upon the temper of the times in which these decisions were made, and the history of the tax laws of North Carolina. In commenting upon the two statutes above referred to, he remarks : " These acts were intended for salutary purposes, and should receive a liberal construction. After every pre- caution has been taken, and the greatest exertions of legisla- tive prudence and foresight have been exercised, the revenue 410 LAW HELD DIBECTORT. § 452 laws of the State are still evaded. They have been enacted from time to time to prevent very general and growing mis- chief. In the year 1792 it was fomid necessary to subject lands to sale for the taxes due thereon. It is well known that large tracts pf land were owned by persons resident in other States, and in many instances by foreigners. Those persons had no personal property in the counties where the lands were situate. It was therefore necessary for the legis- lature either to abandon the land tax, or to adopt such meas- ures as would enforce its payment. The revenue laws of every country must be strict; they must be fully and faith- fully executed, even if they should produce occasional hardship and inconvenience, otherwise' they will never answer the pur- pose for which they were intended." In one case^ one million and seventy-four thousand acres of land were sold, in a body, to satisfy the tax. The publication of delinquent list (giving name of owner, when known, description of property, etc.), under the California Eevenue Act of 1857, is not a condition precedent to the vesting of the tax in the State. The obliga- tion to pay the tax does not exist by virtue of these proceed- ings ; and the omission of the property from the delinquent list may be remedied by a special act authorizing a sale after giving notice as therein provided.^ 1 Love V. Wilbonrn, 5 Ired. (N. C.) 344. 2 Moore ». Patch, 12 CaL 265; Cowell v. Doub, id. 273. 411 CHAPTER Xm. OF THE AUTHORITY OP THE OFFICER TO SELL. § 453. The Power of Sale does not attach until every Pre- requisite of the La-w has been complied •with.-' — The regularity of the anterior proceedings is the basis upon which it rests. Those proceedings must be completed and perfected before the authority of the officer to sell the land of the delinquent can be regarded as consummated. The land must have been duly listed, valued, and taxed, the assessment roll placed in the hands of the proper officer, with authority to collect the tax, the tax demanded, all collateral remedies for the col- lection of the tax exhausted, the delinquent list returned, a judgment rendered where judicial proceedings intervene, the necessary precept, warrant, or other authority delivered to the officer intrusted with the power of sale,^ and the sale advertised in due form of law, before a sale can be made. In a word, every act which can be regarded as a condition precedent to a valid sale must precede the execution of the power in question ; otherwise there is no authority to sell, and the whole proceeding will be treated as a nullity.* § 454. Special Authority. — Whether a special authority directly commanding a sale of the lands embraced in the de- linquent list is essential where all of the pre^^ous proceed- ings are regular, depends upon the peculiar legislation of each State. In some instances the officer derives his power of sale from the law itself, which is his waj-rant, commanding him, 1 Minor v. Natchez, 4 Smedes & M. (Miss.) 602, 627, 628. 2 See Randolph v. Metoalf, 6 Coldw. (Tenn.) 400, 410. * Holt's Heirs' Lessee v. Hemphill's Heirs, 3 Ohio, 232 ; s. c. 1-4 Ohio Cond. 551; Bishop v. Lovan, 4 B. Mon. (Ky.) 116; Garrett v. White, 8 Ired. Eq. (N. C.) 131. 412 §456 without the intervention of any other agency, to sell, and fixing the time, place, and manner of sale.^ In others, especially where a judgment is required, a precept or other process is delivered to the oflScer, which constitutes his au- thority to sell.2 In others, a simple copy of the delinquent list, duly authenticated, is delivered to the officer, and some- times there is superadded a command or direction to proceed and sell. § 455. In ruinois, under the acts of 1827 and 1829, lands not listed in the county of their locality were required to be retarned by the county clerk to the auditor of State, on or before July 15, annually, and in case the taxes remained unpaid for a limited time, the auditor was authorized to ad- vertise and sell the land. Until this list is returned by the clerk to the auditor, his power of sale does not attach.^ Under the law of 1833, which transferred the sale from the auditor to the county clerk, the authority of the clerk to sell depended upon the delivery to him of a list of delinquents by the auditor.* § 466. The Law of North Carolina required the owner to list his land with the justice of the peace in his precinct ; if he neglected to do so, the justice was authorized to appoint a freeholder to value the land on oath, and make a return thereof to the justice ; which return the justice was directed to add to his list, and transmit the whole to the clerk of the County Court. In case of failure by the owner and justice, the sheriff was required to list the land, and summon a freeholder to value it ; in which case the freeholder was required to send a transcript of the list and valuation to the clerk of the County Court before the next succeeding term of that court, and the clerk was directed to incorporate that with the list returned by the justice; the tax lists thus returned were directed to be recorded by the clerk. In Pentland v. Stewart ^ the court 1 M'Coy V. Turk, 1 Pa. 499. ^ Hinman v. Pope, 6 HI. 131; WilMns's Heirs' Lessee v. Huse, 9 Ohio, 154. * Revised Laws, 1833, p. 524, § 3; Messenger v. Germain, 6 111. 631. * Revised Laws, 1833, p. 528, § 1. 6 4 Dev. & B. (N. C.) 386. 418 § 457 OP THE AUTHORITY OF THE OFFICEB TO SELL. say, " These records, it seems to us, are in the nature of judg- ments against each individual on the lists, for the sums re- spectively set against their names." The statute further provided that within thirty days after the term of the court to which the lists were returned, the clerk should make out and deliver to the sheriff a copy of the lists, upon the receipt of which the latter was directed to proceed and collect the tax by demand, seizure of goods, or sale of the land. In com- menting upon this requirement, the court, in the case last cited, remark : " The certified copies of the tax lists, delivered by the clerk to the sheriff, are, in law, his warrant of distress or execution against the property of each individual for the satisfaction of the money due on them." The court, there- fore, held that as " in ordinary cases, where a party claims under a sheriff, he is compelled to produce a judgment and execution against the debtor, as well as the sheriff's deed," so in deducing title under a tax sale the purchaser must produce the record of the lists in lieu of a judgment, and the copy of it delivered to the sheriff as a substitute for an execution ; otherwise, the sheriff has no power to sell and convey the land. § 457. The statute of Ohio, of March 14, 1831, required the auditor of State to transmit to the county auditor a list of all lands which had been forfeited to the State for the non- payment of taxes assessed thereon, said list to be certified and signed by the auditor of State, and to have thereto aflBxed his seal of office, " which list shall set forth the name or names of the person or persons to whom such lands stand charged with taxes, the amount of taxes due thereon for each year, and for what years ; " and the law further provided that unless the taxes due upon the lands embraced in the list were paid by October 15, the county auditor should advertise and sell the same. "In Hannel's Lessee v. Smith ^ the evi- dence offered to show that such list was transmitted to the county auditor was a letter dated June 5, 1843, signed " Jno. Brough, auditor of State, by J. B. Thomas," stating that such list was enclosed) and authorizing the county auditor to proceed 1 15 Ohio, 134. 414 . OHIO, NEW HAMPSHIRE. § 459 and sell. The court held the authority insufficient and sale void upon three grounds : (1) The list was not certified to be correct ; (2) It was not attested by the signature of the audi- tor or his chief clerk ; (3) It was not verified by the official seal of the auditor. A list thus authenticated would no more authorize the county auditor to sell the lands specified in it, than a letter written by the clerk of a court, and directed to the sheriff, informing him that a judgment had been rendered by the court in a certain cause, would authorize the sheriff to levy upon and sell the land of a judgment debtor. The court, after reciting the statute, say : " It is apparent from this law that the authority of a county auditor to sell forfeited land is derived from this list thus transmitted to him by the auditor of State. As well might a sheriff, without an execu- tion, sell lands to satisfy a judgment, as a coimty auditor undertake to sell without this list." § 458. The statute of New Hampshire required the asses- sors to deliver the tax list to the collector on or before the thirtieth day of May annually ; the collector was directed to deliver a copy of the list to the deputy secretary of State on or before the eighth day of the next ensuing session of the General Court ; this copy was to be kept by the deputy until September 1, and on application of the collector, the deputy was to return to the former the copy. The power of the deputy to collect taxes continued until the return, that of the collector until the sale. Where the collector sold the land before the copy of the list was returned to him by the deputy secretary, the sale was held void. Prior to this return the collector had no means of ascertaining whether the owners were delinquent : the taxes may have been paid to the deputy secretary, and this may have been the very reason why no return was made.' § 459. In Lonisiana, the sheriff is authorized to demand the tax, and if not paid, he may proceed and sell the land of the delinquent ; if the person against whom the tax is assessed is a non-resident, or absent from the collection district, so 1 Homer v. Cilley, 14 N. H. 85; Haverhill, &c., Iron Manufactory v. Barron, 3 id. 36. 415 § 461 OP THE ATJTHORITT OP THE OPFICEE TO SELL. that a demand cannot be made, the collector is required to make a return of all such persons to the State treasurer, and this return constitutes the authority of the treasurer to sell the lands embraced in the return. A sale of the land of a non-resident or absentee by the sheriff instead of the treas- urer is void.^ Where the statute requires the tax lists to be delivered to the collector on or before a particular day, and this requirement ia not conformed to, the collector has no authority to sell.^ § 460. The statute of Maine prorided that when no person shall appear to discharge the taxes duly assessed on lands belonging to non-residents " within nine months from the date of the assessment, the collector shall make a true copy of so much of the assessment as relates to the taxes due upon such real estate, and certify the same to the treasurer of the town or plantation." The power of sale was vested in such treasurer. § 461. In Flint v. Sawyer ^ it appeared that the assessment was dated Aug. 14, 1844, and the return of the non-resident list was made by the collector to the treasurer, May 13, 1845. The sale was held void. By the court : " When a statute requires an act to be performed in a certain time from the date of some transaction, the day of such date is excluded in the computation of the time. The collector should have waited during all of the business hours of the 14th day of May, 1845, for the owner of the land to pay the tax upon it, before he made his certificate to the town treasurer. The owner of the land was entitled to the full term of nine months, in which he could make his payment without costs. Besides, the taxes may have been paid on the 14th, within the nine months allowed therefor, and the certificate of the collector stiU be true." 1 Thompson v. Rogers, 4 La. 9. * Cardigan Proprietors v. Page, 6 N. H. 182. * 30 Me. 226. In Pennsylvania, a county treasurer has no authority or jurisdiction to sell unseated land for non-payment of taxes, until they shall have been " due and unpaid for one year before " the sale; and no tax is due until it is assessed. Miller v. Hale, 26 Fa. St. 432. 416 MAINE. § 463 § 462. The statute of Maine required the sale to be made within two years from the date of the warrant to collect. In 1838, Usher v. Taft,^ the warrant was dated July 25, the advertisement was published June 6, 1840, and the sale was made Oct. 10, 1840. In support of this sale it was in- sisted that a tax sale was made up of the seizure of the prop- erty, tiie publication of the notices, and the striking off the land to the highest bidder ; and that if the seizure be made within two years from the date of the warrant, the analogies of the law authorized the sale to be completed afterwards; that the sale had relation to the seizure ; that in case of a sale under execution, if the levy was made in the lif-etime of the execution, the sale might take place afterwards. The court, however, held the sale void. § 463. Verification. — Where the statute is silent as to the verification of the list, or other document, which constitutes the authority of the officer to sell, by the oath of the officer who is required to make it, no such oath is necessary. The oath of office, and the liability of the officer to parties injured by a false list, constitute the only security of the citizen in such cases.^ The statute of Ohio required the county treas- urer, who was ex officio collector, to return a list of delin- quents, under oath or affirmation to be administered by the county auditor, and the latter was directed to record the return in a book to be kept for that purpose. The power of sale was vested in the auditor, and a legal return was the basis of his authority. The record failed to show the administration of the oath to the county treasurer, as re- quired by the law ; but a certified copy of the return con- tained the oath. It was held that without a sworn return the county auditor had no power to sell, that this fact must appear of record, and that no secondary evidence was admis- sible for the purpose of supplying the omission.** A prior » 33 Me. 199. « HoUister's Lessee v. Bennett, 9 Ohio, 83. ' Miner's Lessee v. McLean, 4 McLean C. C. (U. S.) 138. So, where the verification of the delinquent list is in the form of a certificate not under oath appended thereto by the collector, the proceedings are void: Skinner v. Brown, 17 Ohio St. 33; and an affidavit that the delinquent VOL. I. — 27 4]^7 § 464 OP THE AUTHOEITT OP THE OPPICER TO SELL. statute of Ohio required the collector to return to the county auditor the delinquent list, " attested by such collector, under oath," but omitted to direct by what oflBcer the oath should be administered. In Harmon's Lessee v. StockwelP it appeared that the oath was administered by the county auditor, and the sale was held void. By the court : " As the penalties of perjury were intended to be imposed for a false return, it is clear that the oath must be administered by competent authority. K the auditor at that time pos- sessed no such power, the list wants an essential requisite, which invalidates the tax sale. The power to administer oaths is incidental to no office except the judicial. It must be conferred by statute, either directly or by implication, or ministerial officers do not possess it." The court then ex- amine the several statutes of Ohio relating to the power and duties of the county auditor, and thus conclude : " We there- fore find no authority in any of these statutes enabling the auditor to administer oaths, except in the specified cases. The grant of authority in those specified cases sufficiently implies that he possessed it in no other. The return of the collector, therefore, was not under the securities and sanctions which the law required ; and this omission is fatal to a title held under such strict principles as a tax sale, and supersedes the necessity of looking further into the ' case." § 464. The 'Warrant. — The precept, warrant, or list must contain an accurate description of the lands to be sold, or the sale will be void.^ In Kingman v. Glover * a substantial com- pliance with the law was held sufficient, and a warrant held good though it did not name the person liable for the tax. The dissent was, however, very strong, and is here approved. The case named was an action of trespass to try title ; the plaintiff having deduced upon the trial a regular claim of title, list corresponds with the return made by the collector is insufficient; it must state that it corresponds with the facts. Ibid. 1 9 Ohio, 93. « Stewart v. Graffies, 8 Serg. & R. (Pa.) 344; Spiller's Heirs v. Baum- gard, 4 La. 206. » 3 Rich. (S. C.) 27. 418 THE WARRANT. § 464 the defendant claimed a seven years' lease under a sale for taxes. The substantial provisions of the law were, that every person should make return of his property for taxation under oath ; that if the taxes were not paid when they became due, the collector was authorized to issue a warrant under his hand and seal, directed to a constable, requiring him to levy the amount of the tax by distress and sale of the delinquent's goods or land ; and in case the delinquent failed to produce goods, or point out land, then the constable was required to- seize the body, etc. The form of the warrant as prescribed by th^ "statute was as follows : " A. B., tax collector of, etc., to , constable, etc. Whereas hath been assessed by me, the subscriber, etc., in the sum of dol- lars and cents, for defraying the charges of, etc., which sum the said hath neglected to pay. Therefore, you are commanded, etc." The act also provides that if lands are levied on under the warrant, the constable shall advertise and sell an interest " not exceeding the term of seven years." The tax execution in question recited an assessment against "the estate of Mrs. Hammond." This was the only infor- mality in the proceedings, and it was insisted that the war- rant ought to express upon' its face the name of some person liable for the tax, that the heirs of Mrs. Hammond were so liable in this instance, and their names ought to have been inserted. A majority of the court ^ held the execution valid, saying : " The property, whoever may be the owner, is chargeable for the assessed tax, which justifies a levy and sale if it be not paid ; and no injury can be done, in a case like the present, to any citizen who prop- erly respects his obligations to the State, for the payment of his portion of the common charge of the government, or who exercises the most ordinary vigilance over his property. Very strict and technical adherence to forms should not be required from a class of public functionaries whose duties are not commonly supposed to require any peculiar qualifica- tions, and the term of whose office is so short and precarious that few derive a knowledge of its duties from experience. ^ Sicbardson, Frost, and O'Neall. 419 § 464 OP THE AUTHORITY OF THE OFFICER TO SELL. If the process which the tax collectors are authorized to issue does in substance and effect comply with the provisions of the law, and afford to the owner of property the notice which may be necessary for its • protection, formal and technical exceptions may without inconvenience or danger be disre- garded." Judges Evans and Wardlaw dissented from this opinion. The law of South Carolina, under which the de- cision was made, seems to describe a most rigorous and , summary proceeding to enforce the collection of the tax, authorizing even the imprisonment of the body of the de- linquent ; the notice of sale is extremely short ; and it would seem upon principle that greater strictness ought to be re- quired than in ordinary cases. To whom did the estate of Mrs. Hammond belong ? Did she die testate or intestate ? If the former, who were the devisees ? It might be that she made a will and devised her property to executors or trustees to sell for the benefit of some third person. In the warrant in question no one is designated as her legal representative. By the very terms of the law and warrant the tax is a charge upon the person as well as the property of the owner. In the event that no goods or land could have been found, whose body would be liable to seizure under such a warrant ? Is the officer at his peril to seize and imprison the right per- son, under such a vague designation? The same reasons assigned by the court for dispensing with technicality in the form of this warrant may be applied with equal force to every other proceeding in the enforcement of the revenue laws of every State. It is said that strictness, in this class of cases, is " wholesome discipline ; " but the rule laid down in Kingman v. Glover is a bounty upon ignorance, a license to depart from the requirements of the law, and converts every tax collector into a petty legislator, arming him with a dis- pensing power in cases where it is inconvenient for him to follow the letter of the law. It will not be pretended that even an ordinary execution against " the estate of Mrs. Ham- mond " could be sustained for an instant. Yet a more lax rule is applied to a warrant to collect a tax, affecting not only the property, but the personal liberty of the delinquent. 420 THE WARBANT. § 464 These reasons detract greatly from the authority of Kingman V. Glover, and sustain the opinion of the dissentient judges in that case. It has already been shown that the deed is not evidence of the authority of the officer to sell, and that the onus probandi rests upon the party alleging the existence of the authority .1 ' Chapter II. and § 1120; see also Doe d. Morris v. Himelick, 4 Blackf. find.) 71, note, 494. 421 CHAPTER XIV. OP THE DISTINCTION BETWEEN MANDATORY AND DIBECTOET EEQUIEBMENTS. § 465. CouBTS do not sit for the purpose of granting favors to parties, but to administer justice to them according to the law of the land. While this general principle is universally conceded, it has been held that many requirements of a law may be regarded as directory.^ Lord Mansfield remarks " that there is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory." ^ What requisitions are to be deemed conditions precedent, and what may be treated as directory, must depend upon a sound construction of the nature and objects of each regulation.^ No general rule can be laid down for the government of every possible case which may arise. The peculiar phraseol- ogy of each statute, the course of legislation upon the partic- ular subjec1>-matter, the local policy intended to be advanced, must all be duly considered.* The application of this doc- trine to tax laws is denied by many of the cases. It is said ^ Mussey v. White, 3 Greenl. 290 ; State Bank v. Buckmaster, Breese, 133; Vance v. Schuyler, 1 Gilm. 160; Day v. Graham, Id. 435; Taylor V. Brovm, 5 Cranch (U. S.), 234; Craig v. Radford, 3 Wheat. (U. S.) 594; Stringer ». Young's Lessee, 3 Pet. (U. S.) 320; United States v. Kirkpatrick, 9 Wheat. (U. S.) 720; United States v. Vanzandt, 11 id. 184; Striker v. Kelly, 7 Hill (N. T.), 9; Allen's Lessee v. Parish, 3 Ohio, 187; Lawrence v. Speed, 2 Bibb (Ky.), 401; Hayden v. Dunlap, 3 id. 216; Bealls V. Guernsey, 8 Johns. (N. T.) 52; Wiggin v. New York, 9 Paige (N. Y.), 16; State v. Click, 2 Ala. 26; Hooker v. Young, 5 Cow. (N. Y.) 269; Marchant v. Langworthy, (S Hill (N. Y.), 646. « King V. Hensey, 1 Burr. 642, 647. » Hayes v. Hanson, 12 N. H. 284. * Monk V. Jenkins, 2 Hill, Ch. (S. C.) 9, 12. 422 GENERAL STATEMENT. § 465 that to sustain a tax sale where the oflBcer has failed to con- form to the requirements of the statute " is to transfer the legislative power to the sheriff, and so allow him to sell land for taxes, not in the manner prescribed by the written law, but according to his private notions of what is right, and would place at his discretion the property of every citizen of the State." ^ It is perfectly clear, however, that too great nicety will defeat the very object of tax legislation, and de- throne the legislative authority. To be sure, the courts have to take a dangerous power when they decide as to what pro- visions are directory and what are mandatory, as the objectors urge, but they exercise the same power whenever they declare a statute unconstitutional or construe it at all ; are they, therefore, not to construe ? The true meaning of the dispute is this: the courts cannot arlitrarily declare one provision directory and another mandatory, but it is their duty to exer- cise the same reason and common sense to arrive at a rational interpretation of the statute and the true meaning of the legis- lature;^ and on the hypothesis that the legislature is com- posed of reasoning beings, it is not likely that the intention was to subject a tax title to objection by the taxpayer because of defects which do not affect him at all, but only injure the very government the collection of whose revenues would be hindered by such objections. The decided weight of reason and authority favors the rule that the semblance of benefit to the owner is the test of a mandatory provision as to him in the absence of express statutory declaration.^ I think the objection has arisen from failure to keep in mind that a decision to the effect that certain provisions are directory does not do away with their force or make them nullities. The officers are just as much bound to obey them as if they were called mandatory. They are mandatory as to the officers. The courts merely declare upon whom and for whose benefit the command is laid. Sometimes the law declares all its pro- visions directory ; * then the courts have to object that the legislature cannot * do away with the necessity of a good levy, 1 §§ 469, 470; Register v. Bryan, 2 Hawks (N. C), 17. ' § 474. ' §§ 471-473. * § 467. 423 § 466 MANDATORY AND DIRECTORY REQUIREMENTS. assessment, and notice of sale.^ In § 466 we give some examples of mandatory provisions, and in § 467 examples of provisions held to be directory. Those relating to time are presumed to be only directory, unless the nature of the case or an express declaration shows them to be of the substance.^ § 466. Provisions held Mandatory. — An ordinance of Du- buque respecting special assessments for grading, etc., pro- vided that the resolution of the council by which such tax should be levied, should be published for two weeks in the official paper of the city, and that the tax should thereupon be due and payable. It was held that the provision re- specting publication was not merely directory, but that it must have been complied with in order to give the tax any legal existence.^ Where at the time of the assessment of the land it was owned and occupied by the defendant, and yet the supervisor did not furnish the defendant nor any person residing on the land a blank form for a statement of taxable property, nor did he call on the defendant nor any one resid- ing on the land for a statement, such statement including both real ^and personal property, and the assessment roll being made from these statements, it was held that this requirement is mandatory, because the owner i^ entitled to have the land assessed to some person who is entitled to be called upon for the tax, and from whom the tax may be collected by distress and sale of personal property before the land can be charged with it ; and a failure to comply with this requirement avoids the sale.* Where the law provided that the tax receipt of each delinquent should after thirty days' publication be stamped by the city treasurer with the words " published according to law," and should from that time become an executory pro- cess against the party owing the tax, the failure to stamp is fatal.^ Failure of sheriff, on receiving the delinquent list, » Disputed. » § 468. ' Dubuque v. Wooton, 28 Iowa, 571. * Seager o. Kearsage Mining Co., Auditor- General's Report (Mich.), 1873, p. si. 5 Succession of Trainor, 27 La. Ann. 151 (1875). 424 DIEECTOBT PROVISIONS. § 467 to certify that he finds no personal property of the delinquent, is fatal to subsequent proceedings.^ § 467. Directory Provisions. — A statute provided that all its instructions and directions for assessing, levying, and collect- ing taxes should be deemed only directory, and that no error or informality not affecting the substantial justice of the tax itself should affect the validity of the tax or assessment. It was held not to embrace such errors as went to the jurisdiction of the officers, or substantially affected any material step in the proceedings, as notice of sale.^ In Maine, by Revised Statutes of 1841, ch. 14, § 63 (Revised Statutes of 1857, ch. 3, § 85), it is provided that the assessors shall requii-e the collector to give bond for the faithful discharge of his duty ; and this provi- sion is held to be directory, and the giving of such a bond is not a condition precedent to the collector assuming his official duties.^ Under the New Jersey statutes, assessors of town- ships are required to take an official oath that they will faith- fully, honestly, and impartially value and assess the ratable estates in their townships, and that in making such valuation and assessments they will, to the best of their knowledge and judgment, observe the directions of the law respecting the same, etc. ; and it is provided by § 14 of Supp. Stat, of 1862, that asses- sors shall assess property at its full and fair value, etc. ; and it ia also provided that every assessor shall annex to his duplicate an oath in writing that all assessments in his duplicate have been made according to the requirements of said statute. It was held that the annexing such oath or affirmation was direc- tory.* In Michigan, it has been held that the sale was not void merely because the town treasurer failed to make a state- ment under oath of all money collected by bim, and file the same with the county treasurer, as required by § 41, p. 74, Laws of 1848. Such oath is required to secure an accurate accounting, and has no reference to the return of the land for delinquent taxes.^ » Belden v. State, 46 Tex. 103 (1876). 2 Prindle v. Campbell, 9 Minn. 212 ; Moorehonse ». Bowen, Id. 314. s Scarborongh v. Parker, 53 Me. 252. * State V. Metz, 31 N. J. L. 378. « Tweed v. Metcalf, 4 Mich. 579. 425 § 468 MANDATORY AND DIRECTORY REQUIREMENTS. § 468. Time. — The general- rule is that where a statute specifies the time within which a public officer is to perforin an official act regarding the rights and duties of others it will be considered as a directory requirement, unless the nature of the act to be performed, or the language used by the legislature, shows that the designation of the time was intended as a limita- tion upon the power of the officer.^ Where there is notliing in the nature of the power conferred, or in the manner of giving it, which justifies the inference that the time was mentioned as a limitation, it may be exercised after the day fixed. By a directory statute it is not to be understood that no duty is imposed to do the act at the time specified, in the absence of a satisfactory reason for not then doing it, but simply that the act is valid if done afterwards ; while a peremptory law requires the act to be done at the time specified, and at no other.^ A statute directing a tax-collector to keep property seized (as a distress) four days before advertising, and at the expiration of that time to sell it, giving six days' notice, does not require him to act at t^e exact expiration of the four and six days, though he may not advertise and sell in less time.^ Where by inadvertence the assessment rolls were not re- turned to the common council, and the levy not made within the time fixed by the city charter, it was held not to avoid the tax even at law, and still less in equity ; there being provision for correction of errors by a board of assessors before returning the rolls to the council, and it not being con- ^ See Wilcox v. Humphrey, supra, pp. 201, 205; Detroit, Eel Eiver, &c. R. Co. V. Bearss, 39 Ind. 598, 605; Hill b. Wolfe, 28 Iowa, 577; Shaw V. Orr, 30 id. 355, 359. « Peoplea. Allen, 6 Wend. (N.Y.) 486; Pond u. Negus, 3 Mass. 230; St. Louis County C. v. Sparks, 10 Mo. 117; Walker v. Chapman, 22 Ala. 126; Webster v. French, 12 111. 302 ; Marsh v. Chesnut, 14 id. 223 ; Billings v. Detten, 15 id. 218; Thames Manuf. Co. v. Lathrop, 7 Conn. 550; People ». Peck, 11 Wend. (N. Y.) 604; Ex parte Heath, 3 Hill (N. Y.), 42; People V. HoUey, 12 Wend. (N. Y.) 480; Colt «. Eves, 12 Conn. 243, 255; Mead v. Gale, 2 Denio (N. Y.), 232 ; Rex ». Sparrow, Strange, 1123; Rex 1!. Leicester, 7 Barn. & C. 6 ; see Brown v. Hogle, 30 HI. 119 ; Smith v. Crittenden, 16 Mich. 152 ; Hill v. WoUe, 28 Iowa, 577. « demons v. Lewis, 36 Vt. 673. 426 DIBECTORr PROVISIONS. § 469 tended that the plaintiff had been deprived of his remedy in this respect.^ Where the assessors had opened their roll for inspection, in pursuance of notice given by them that it was completed, and opposite the name of the plaintiff had left a blank which was to be filled up with a description of lands leased by him as soon as they could discover whether any had been released within the year, the assessors having collected data as to the property to be assessed and agreed upon its value, and where, after the roll was opened, the complainant's agent examined the same, and was informed of the assessors' inten- tion, and he afterwards furnished the assessors with a list of complainant's property, which was inserted in the roll about the middle of July, it was held that the assessment was regular, and a tax levied thereunder valid.^ In New Hamp- shire, the direction in the tax statutes that the money shall be collected and paid into the treasury within a certain time is directory merely, and an assessment of the tax after such time is valid.^ Under the Indiana statute, an omission to deliver the tax duplicate to the treasurer by October 15, or to add up the columns and carry the footings forward, as was required by law, does not render the duplicate void.* But in California, where a statute provided that " on or before the first Monday of May annually the board of supervisors of said city and county shall levy the amount of taxes," etc., and the order levying the tax was passed the first Monday of May, but the approval of the mayor, which was necessary to the completion of the levy, was not obtained till the next day, the tax was illegal.^ § 469. Protest against caUing Provisions Directory. — The mode of getting rid of a statutory provision by cfilling it directory is not only unsatisfactory on account of the vague- ness of the rule itself, but it is the exercise of a dispensing power by the courts which approaches so near legislative dis- 1 Mills ». Johnson, 17 Wis. 598. » Overing v. Foote, 43 N. Y. 290. » Wells V. Bufbank, 17 N. H. 393. ■* Harrison County Com. ». McCarty, 27 Ind. 475. » People V. McCreery, 34 CaL 432. 427 § 470 MANDATORY AND DIRECTORY REQUIREMENTS. cretion that it ought to be resorted to with reluctance, and only in extraordinary cases, where great public mischief will otherwise ensue, or important private interests demand the application of the rule. There is no more propriety in dis- pensing with one positive requirement than another ; a whole statute may be thus disposed of when in the way of the caprice or will of a judge. It is usually much easier to do the act than hunt up reasons for its omission. Besides, it vests a discretionary power in the ministerial officers of the law, which is dangerous to private rights ; and the public incon- venience occasioned by a want of uniformity in the mode of exercising a power is a strong reason for bridling this discre- tion. It is dangerous to attempt to be wiser than the law ; and when its requirements are plain and positive, the courts are not called upon to give reasons why it was enacted.^ § 470. The remarks of Judge Pope, in Mayhew v. Davis,^ are worthy of a place in this connection. In commenting upon the requirements of one of the revenue laws of Illinois, he proceeds to say : " But it is said that some of the require- ments of the legislature are only directory, and may be dis- pensed with. Upon this it may be remarked that a judge should rarely if ever take upon himself to say that what the legislature have required is unnecessary. He may not see the necessity of it, still it is not safe to assume that the legis- lature did not have a reason for it; perhaps it only aimed at uniformity. In that case the judge cannot interfere to defeat that object, however puerile it may appear. It is admitted there are cases where the requirements may be deemed direc- tory ; but it may be safely affirmed that it can never be where the act, or the omission of it, can by any possibility work advantage or injury, however slight, to any one affected by it. In such case it can never be omitted." In Culver v. Hayden ^ the conrt say : " Where property is affected, or the title to be divested, by the provisions of a special statute, the requirements of the act must be strictly followed. The performance of these acts is the condition on which the 1 Dillingham v. Snow, 5 Mass. 547, 557; Beeds v. Morton, 9 Mo. 878. * 4 McLean C. C. (U. S.) 213. » 1 Vt. 359. 428 THE TEUE TEST. § 472 property is to be diyested ; and it is not for the court to in- quire whether the provisions of the statute are reasonable, whether a compliance with them may not be dispensed with without injury to the owner of the estate, but whether they have been made, and if so they must be literally pursued." § 471. United States Supreme Court ; Benefit of the Ovmei the Test. — The rule is thus laid down in French v. Edwards,^ by Field, J. : " There are undoubtedly many statutory requi- sitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffect- ual. Such generally are regulations designed to secure order, system, and despatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually re- garded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory, but mandatory. They must be followed, or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise." ^ § 472. And in McDonough v. Gravier's Curator ^ the court say : " TouUier, in his commentaries on the civil law of Prance, in treating of the nullities of contracts, divides the subject into, (1) Acts done contrary to law ; and (2) Omissions to pursue the formalities required by its provisions. This latter branch is subdivided into substantial and accidental formali- ties. When the formality prescribed is founded on natural equity, it is said to be substantial, and its omission carries with it nullity of the act. In our opinion it is of the essence of justice and natural equity that when a forced sale of prop- 1 13 Wal. (U. S.) 511. * See also Cooley's Constitutional Limitations, pp. * 74-78; Cmgef v. Dougherty, 43 N. T. 122. « 9 La. 546. 429 § 474 MANDATORY AND DIKECTOET REQUIREMENTS. erty is made under statutes, all formalities which have the semblance of benefit to the owner should be strictly com- plied with." This principle is maintained by the New York authorities.^ § 473. The case of Torry v. Millbury ^ indorsed by Sibley V. Smith,^ lays down the following rules relative to the con struction of this class of statutes : " In considering the vari- ous statutes regulating the assessment of taxes, and the measures preliminary thereto, it is not always easy to distin- guish which are conditions precedent to the legality and validity of the tax, and which are directory merely, and do not constitute conditions. One rule is very plain and well settled, — that all those measures which are intended for the security of the citizen, for insuring an equality of taxation', and to enable every one to know for what polls and for what real and personal estate he is taxed, are conditions precedent, and if they are not observed, he is not legally taxed; but manj' regulations are made by statute, designed for the in- formation of assessors and officers, and intended to promote method, system, and uniformity in the mode of proceeding, the compliance or non-compliance with which does in no respect affect the rights of taxpaying citizens ; these may be regarded as directory. Officers may be liable fo legal ani- madversion, perhaps to punishment, for not observing them, but yet their observance is not a condition precedent to the validity of the tax." § 474. The Vermont Rule. — Reason and common sense are to be used in tax cases as well as in others. A rational in- terpretation is to be given tax statutes, and senseless nicety must not defeat legislative action. The Vermont rules upon this subject are thus laid down 1 Sharp V. Johnson, 4 Hill (N. T.), 92, 99; Corwin v. Merritt, 3 Barb. (N. Y.) 341, 343; Atkins v. Kinuan, 20 Wend. (N. Y.) 241, 249; NeweU V. Wheeler, 48 N. Y. 486. 2 21 Pick. (Mass.) 64. 8 2 Jklich. 486, 498, 499. " What the law requires to be done for the protection of the taxpayer is mandatory, and cannot be regarded as directory merely." Clark v. Crane, 5 Mich. 151, 154; see also Mann v. Utica, 44 How. Pr. (N. Y.) 334, 336. 430 THE TRUE TEST. § 474 in Chandler v. Spear : i " The following principles, or rules for testing the validity of tax titles, appear to be fairly dedu- cible from the reported cases on that subject : 1. Where the statute, under which the sale is made, directs a thing to be done, or prescribes the form, time, and manner of doing any- thing, such thing must be done, and in the form, time, and manner prescribed, or the title is invalid ; and in this respect the statute must be strictly if not literally complied with. 2. But in determining what is required to be done, the stat- ute must receive a reasonable construction ; and when no particular form or manner of doing a thing is pointed out, any mode which \effects the object with reasonable certainty is sufficient ; ^ and in judging of these matters the court is to be governed by such rational rules of construction as direct them in other cases." And in Spear v. Ditty ^ Judge Phelps remarks : " Great nicety has prevailed in relation to these titles ; and in cases of doubt the inverted maxim seems to have obtained, ut res magis pereat quam valeat. They are said to be stricti juris, — a proceeding in invitum, etc. This is true. Still, some degree of reason and sense is to be ex- ercised in determining what right is ; and although there may be no equitable consideration to aid such title, still every statute should have a rational interpretation and a reason- able effect. We ought not to discard those aids which guide us in other cases, nor by an ' unreasonable and senseless nicety defeat a solemn act of the legislature. It is, however, admitted, that in interpreting these statutes we should con- sider the title to be acquired under them as stricti juris, and should require a full and complete compliance with the requi- sitions of the statute. Before the title of the owner is divested by such a proceeding, we should insist upon every- thing tending to the security of the owner, which is either prescribed by the terms of the act, — brought within it by a I'ational and strict construction, — or which, in the nature of the transaction, is necessary to give ample effect to every safeguard which the legislature have endeavored to throw 1 22 Vt. 388. 2 See Wells v. Jackson Iron Co., 48 N. H. 491, 534. » 8 Vt. 419. 431 § 475 MANDATORY AND DIRECTOET EEQUIEEMENTS. around the subject. But it is not our duty to legislate, — to create artificial and unreasonable difficulties; nor by over- nice and unmeaning technicality, without any rational pur- pose, to convert the proceeding into an idle ceremony" § 475. ApptoveQ of the United States Role. — This seems to be the safest and most equitable rule to adopt ; a requirement which tends to the security of the owner, or which possesses the semblance of benefit to him, should be faithfully complied with ; while those which possess no intrinsic merit, and the omission of which works no manner of injury to the owner of the estate, ought not to defeat the title of the purchaser. Such seems to be the true principle to be deduced from the decided cases, if it be once conceded that any provision of a statute may under any circumstances be regarded as direc- tory. The application of that principle to the facts of each particular case is shown in those parts of this work which treat of the different requirements ; the design of this chapter being simply to lay before the profession those general rules which seem to aid in the investigation of questions of this nature. 432 CHAPTER XV. THE TAX LIEN. § 476. Summary of the Subject.^ — Under this head we shall consider the creation,^ time of attaching,^ what taxes are se- cured,* priority over previous incumbrances,^ and the duration or termination® of tax liens. § 477. Creation of the Lien. — It has been held that there is no lien for taxes unless the legislature under whose au- thority they are assessed so declares.'' A city can claim no lien for her taxes, nor 'impose penalties for their non-payment, except so far as the legislature has given the power.^ And the law, though giving a lien, may not give one that shall take priority of a previous mortgage.® But it would seem, upon principle, that the sovereign power of the State to levy and collect taxes, the nature of tax laws, which are regarded as notice to all the world of the liability of property to taxation, the fact that all property is impliedly pledged for the prompt payment of all assessments made imder the authority of the con- stitution and laws, — all necessarily concur in creating, by im- plication, a lien, without any express declaration to that effect.^" ^ See Index, " Purchaser's Right to recover." 2 § 477. « § 478. 4 § 479. ^ § 430. « §§ 481-184. ' Heine v. Commissioners, 19 Wall. 655; Albany Co. v. Meriden, 48 Conn. 243 (1873); Tompkins v. Raikoad, ISJFed. Rep. 844. 8 Jefferson City ». Whipple, 71 Mo. 519 (1880). ' Appeal of the City of Pittsburgh, 40 Pa. St. 457. 10 Where the owners of adjoining lots had each given ten feet of his lot " to be kept open for a street or alley forever, not to be obstructed in any way," it was held that though it was a private way, a tax sale of a lot would not convey the ten feet thrown into the alley, which was stiU subject to the easement. Hall v. McCaughey, 51 Pa. St. 43. Timber cut and removed from the land by one in possession under a tax deed, vol.. I. — 28 433 § 478 THE TAX LIEN. A law giving cities power to sell land for taxes applies to taxes delinquent before the act was passed as well as to those becoming delinquent afterward.^ § 478. ■When the Lien attaches. — In Illinois, it seems the lien takes effect from and after the first day of May of the year for which the taxes are levied.^ In Missouri, the first Monday of September is the initial day of assessment, and governs the attaching of the lien. On that day ownership determines who is to be assessed.^ So in Massachusetts taxes on land are a lien from the date of assessment, and a vio- lation of a covenant against incumbrances, from that time, before the tax bill is issued to the collector.* A lien for per- sonal taxes may attach to land acquired subsequently to the assessment.^ In Michigan, the day upon which accrues the duty of paying the tax is held to initiate the lien.® In this case taxes are not such a lien on land as to constitute a breach of the covenant against incumbrances so long as the owner has sufficient personal estate that can be found on the prem- ises to satisfy the tax.^ In Brown v. Goodwin ^ the court said that under the U. S. Kev. Stats., § 3172 et seq., there is no lien on real estate for taxes until notice and demand of the tax and neglect or refusal to pay, and no right to seize and sell until there is a failure to find personal estate. The court here was speaking, however, not of the time from which the lien dated, but of the prerequisites to a valid sale. A. sold land to B. on the 31st of October, 1781, covenanting against incum- brances. The statutes required listing and valuation to be regular on its face, and prima facie evidence of title, belongs to the origi- nal owners if the tax title is shown to be invalid. Paine v. Libby, 21 Wis. 425. 1 Haskel v. Burlington, 30 Iowa, 232 (1870). " Cooper V. Corbin, 105 111. 224, 230, 235 (1883). » McLaren v. Sheble, 45 Mo. 130 (1869). * Cochran v. Guild, 106 Mass. 30. 6 Cummings v. Easton, 46 Iowa, 183 (1877). « HaiTington v. Billiard, 27 Mich. 274 (1873); first Monday of De- cember. ' Briggs V. Morse, 42 Conn. 260 (1875). 8 75N. Y. 414 (1878). 434 PRIOEITT. ' § 480 made by the third Monday of May, but declared that taxes should be a charge on the person owning the land on the second Monday of May, and a lien on real estate from and after the first Monday of December. B. paid the taxes and sued A. for the amount. It was held that up to the first Mon- day of December the land was just as clear from an incum- brance by reason of taxes for the current year as on account of taxes of any future year ; there was no breach of the cove- nant against incumbrance ; and that if the land was conveyed before the lien attached, the vendee would have to pay the tax of that year ; if afterward, the vendor should pay it.^ § 479. 'What Taxes the Lien secures. — There may be a lien on land for personal taxes,^ and such lien will affect real estate acquired by the taxpayer subsequent to the assessment,^ and a lien will exist for street assessments.* Under the Alabama Code ^ the St&,te has a preferred lien on the lands of a taxpayer for all taxes due from him, real, personal, or poll. This lien attaches January 1, of the year for which the taxes were as- sessed, and affects even a subsequent bona fide purchaser for value without notice.^ A tender of the taxes due on the lands without including poll tax and taxes on his personal property is no defence in proceedings to condemn the land.^ § 480. Priority of Tax Lien over Previous Incumbrances. — " A lien for taxes does not stand on the footing of an ordinary incumbrance, and is not displaced by a sale under a pre-exist- ing judgment or decree, unless otherwise directed by statute. It attaches to the res without regard to individual owner- ship, and when it is enforced by sale pursuant to the statute, the purchaser takes a valid and unimpeachable title." '^ So where the taxes of 1875 were a subsisting lien on the prop- erty at the date of a foreclosure sale, and the mortgage was 1 75 N". Y. 278 (1878). 2 Paulson V. Rule, 49 Iowa, 576 (1878). » Cummings v. Easton, 46 Iowa, 183 (1877). * Mix V. Boss, 57 111. 124 (1870). 6 Driggers v. Cassaday, 71 Ala. 530 (1882). ' Driggers v. Cassaday, 71 Ala. 529 (1882). ' Osterburg v. Union Trust Co., 93 U. S. 428 (1876) ; Spratt ». Price, 18 Fla. 302 (1881) ; Allegheny City's Appeal, 41 Pa. St. 60. 435 § 482 THE TAX LIEN. prior to 1875, the foreclosure sale related back to the date of the mortgage, and defeated all subsequent liens and incum- brances, except the lien for taxes ; that it did not affect, and a subsequent sale for the said taxes would defeat the rights of the purchaser at the foreclosure sale.^ The lien given by the Texas Constitution for the taxes assessed against land is a charge merely on each separate tract for the taxes assessed thereon ; and a judgment declaring a lien on all the tracts of one owner for his aggregate tax on all the tracts is erroneous.* § 481. Termination of the Lien. — The lien may come to an end by payment of the taxes, by statutory limitation of its duration,^ or by abandonment on the part of the State,* but is not affected by alienation of the land.^ If there is no statute limitation put upon the lien, delay will not affect it. The ordinary statutes of limitation do not apply,^ nor will the ob- taining of a personal judgment for the taxes against the owner affect the lien on the land. The State may have ^t the same time two judgments for the same tax, — one in personam and one in rem, — but payment of either will be a satisfaction of both.7 § 482. Statute Limitation of the Duration of the Lien. — Sometimes there is a provision limiting the duration of the lien, in order that the alienation of the land shall not be long and unreasonably incumbered. In the Act of Congress of Jan. 9, 1815, the lien was limited to two years. Such limi- tations are construed in the light of their purpose, and the one just mentioned was held not to prevent sale for taxes after the said period of lien had elapsed, where there had been no alienation of the land.^ U. S. Rev. Stats., § 3186, make the taxes a lien till paid. In Rhode Island, all taxes are a lien on the land of the person from whom they are due for two years 1 Osterburg v. Union Trust Co., 93 U. S. 428 (1876) ; Spratt v. Price, 18 Fla. 302 (1881); Allegheny City's Appeal, 41 Pa. St. 60. 2 Edmonson v. Galveston, 53 Tex. 161 (1880). « § 482. * § 483. 6 § 484. » Esohbach v. Pitts, 6 Md. 78 (1854). "> Mdf ; People v. Stahl, 101 111. 350 (1882). 8 Holden v. Eaton, 7 Pick. (Mass.) 17 (1828). 436 ABANDONMENT. , § 483 after the assessment.^ Alienation during the two years will destroy the lien, if the vendor have sufficient other property to satisfy the taxes.^ So, where A. owned three tracts in the same town, and after the assessment sold one to B., and sub- sequently the other two to C, the levy was made on the last two for A.'s whole tax. C. filed a bill against B. for contribu- tion, but it was held that as the two tracts sold to G. were sufficient to pay the tax, the first tract was freed from the lien by its priority of alienation.^ In Massachusetts, the lien continues two years from the committing of the tax to be col- lected, and no longer. But though taxes do not constitute an inciunbrance on land after the two years so as to affect a pur- chaser, yet if the land has not been alienated it may be sold after the two years have expired.* Sewer assessments are a lien for one year from the assessment. The tax can be levied on the land within one year, whoever may be the owner, and afterward if the ownership has not changed since the assessment^ It is sufficient if proceedings to enforce the lien are com- menced wilMn the period limited ; they may be consummated afterward in due course.® § 483. Abandonment of the Lien by the State. — Where a tax was levied in 1857, and the lot sold in 1871, and a deed given in 1879, but the tax of 1857 had not been carried for- ward on the books for any of the following years, and all subsequent taxes had been paid, and the city had adopted, as a guide for the treasurer, a " history of delinquent taxes " in which the said lot appeared with no tax entered against it, it was held that these facts constituted an abandonment of the tax of 1857 on said lot, and that the deed passed no title.' 1 BnU V. Griswold, 14 R. I. 23 (1882); Gem. Sts., Cap. 41, § a « Gen. Sts. R L, Cap. 41, § 7. » BuU ». Griswold, 14 R. I. 23 (1882). « Hnssell e. Deshon, 124 Mass. 343 (1878). ^ Kelso o. Boston, 120 Mass. 299 (1S76). « Himmelman v. Caipentier, 47 Cal. 42 (1873); Dongfaerty v. Henarie, Id. 9; Bandolph v. Bayne,44 id. 366, — aU cases of lien for street assess- ments. Action being b^^nn during the two years, judgment rendered after was 5ood. ' Bradley v. Hintrager, 61 Iowa, 337 (1883). 437 § 484 THE TAX LIEN. § 484. Effect of Alienation of the Land. — The lien of the State cannot be discharged by an assignment for the benefit of creditors.^ When the lien attaches by assessment of the land as the property of the holder at the proper time fixed for assessment, a subsequent alienation mil not affect the lien.^ The charge is upon the land irrespectiTe of ownership. ' State V. Bowse, 49 Mo. 593 (1872) ; a decision regarding personal taxes. 3 Freeman v. Atlanta, 66 6a. 617 (1881) ; Covington v. Boyle, 6 Bosh, 205 (1869). 438 CHAPTER XVI. THE SALE. § 485. Snmmary of the Subject — In order to pass a valid title to land by tax proceedings, not only is it necessary that all the steps anterior to sale should be properly taken,^ but the sale itself must be public ^ (unless a forfeiture has taken place, or the land has been offered at public sale which failed for want of bidders ^), at the time * fixed by the law, or by the notice if the law is silent, or at a proper adjournment ® of a sale begun^ at said time, at the designated place,'' by the proper officer,^ to the highest bidder ^ for eash^^ of the full amount of the taxes." If prior taxes are omitted, a second sale cannot be made for them.^ A sale by a court after a State sale of the same land, and while the title is still in the State, is void,^ and the whole land or interest sold must be liable for the taxes, and for all the taxes for which it is sold ; " if apart of them are ille- gal the sale is void. The land must be sold according to its legal character,^^ as seated or unseated, etc., and in the proper parcels or interests,^ and the law must be carefully followed as to whether the whole or a portion, and if the latter what por- tion,^'' of any given tract is to be sold for the taxes on the tract. If a part of a tract is sold it must be set off 6y metes and bounds, or otherwise definitely ascertained.^^ The sale must be properly reported and recorded where the law so re- quires.^' We have also to consider the result of a mistake of the officers, and the effect of a change of county lines.^ The sale in order to pass a perfect title must be free from fraud 1 § 486. » § 487. » § 487. * § *88. » § 497. • § 497. f § 501. e § 502. » § 503. " § 509. " § 516. " § 516. »» § 517. " § 518. « | 524. " § 525. " § 541. 18 § 550. » § 554. 20 § 556 439 § 486 THE SALE. affecting the purchase in question, either actual or constructive, as when a combination to prevent competition exists among the bidders, etc., or when a tax title on certain land is pur- chased by one so related to the land, or upon whom there was resting or had rested such an obligation to pay the taxes, that as against some other person interested in the land it would be inequUoMe to allow said purchaser to take advantage of the tax title.^ Sales to cities, counties, or the State are consid- ered in Chap. XIX. ; corporations sales are treated in Chap. XX. The effect of a valid sale we shall discuss under the head "Purchasers' Title," and the effect of an invalid sale under the caption " Purchasers' Recovery." § 486. All Conditiona Precedent must have been fulfilled. — The general principles relative to the power of sale have already been fully explained. It has been shown that the authority of the officer to sell depends upon the regularity of the anterior proceedings, and in most instances upon a special precept authorizing him to proceed ; and it has also been shown that where the sale is conducted by the wrong officer or person, or where the proper officer makes the sale before his power attaches in point of time, or where he exer- cises the power after it has become functus officio, the sale is void.2 All facts required by the law to exist before sale must exist, or there can be no valid sale ; for example, where the law authorized the sale of lands only when the taxes were delinquent and remained due and unpaid more than two years, it was held that a sale made before that time was void.^ So by the Iowa laws of 1844 lands were not subject to sale unless the taxes had been due and unpaid for three years.* Notice of levy and sale must be served on the delinquent owner of the land to be sold, or the sale will be void,^ as it will also if the » See §§ 557, 566. ^ Hughey's Lessee v. Horrel, 2 Ohio, 231 ; Thompson v. Bogers, 4 La. 9; Usher ». Taft, 33 Me. 199. ' Orr V. Travacier, 21 Iowa, 68. * Scott V. Babcock, 3 Greene (Iowa), 133, qualifying the case of Noble V. State, 1 id. 325. 6 HiU «. Nicholson, 92 N. C. 24. 440 MUST BE PUBLIC. § 487 taxes were not carried forward,^ or the tax lists failed to give the numbers of the certificates under which the land was lo- cated.2 In the absence of any special provision of law as to the manner of selling property for taxes, recourse must be had to other statutes in pari materia? § 487. Tbe Sale must be a Public and not a Private one.^ -^ The object of the law is to secure a fair competition among the bidders. If a secret sale could be sustained, the policy of the legislature would be defeated in this respect. No stat- ute is remembered which does not either in express terms, or by necessary implication, require the sale to be at public ven- due. A sale made in violation of the letter or policy of the. law in this particular is void. Where the statute requires the land to be sold at " public auction," and instead the county treasurer allows those who wish to buy delinquent lands to hand him slips of paper with the description of the lands they want written thereon, and enters these lands on his books as though they had been sold in the usual way, all deeds based on such sales are voidable if not absolutely void ; and the facts may be proved by persons who can testify to the general manner and custom of the treasurer in making his sales, though they cannot testify as to any particular piece of land.^ In Iowa, such a sale has been held void, and neither curative laws nor the statute of limitations (the purchaser not being in possession) can save the title.^ It is a universal rule that the land must be offered at public sale, unless the proceedings are by forfeiture. But after failure to sell at public sale for want of bidders, the property may be sold at private sale. A tax deed purporting to have been issued on a private sale must recite that the land had been previously 1 Hunter v. Early, 37 N. W. 776 (Iowa) ; Buckley v. Early, 33 id. 769; Guise V. Early, Id. 683. 2 McCormick r. Edwards, 6 S. W. 32 Tex. 88. ° Templeton v. Morgan, 16 La. Ann. 438. * See Cuttle v. Brockway, 32 Pa. St. 45; Jenks v. Wright, 61 id. 410; Burdick v. Bingham, 38 N. W. 489 (Minn.). 5 Youqg 0. Rheinecher, 25 Kan. 368 (1881). • Miller v. Corbin, 46 Iowa, 152 (1877) ; Truesdell ». Green, 57 id. 215 (1881) ; Besore v. Dosh, 43 id. 211 (1876). 441 THE SALE. offered at public sale for the same taxes and had not been sold for lack of bidders.^ § 488. Time of Sale, — The sale must be at the time fixed by law or by the notice of sale,^ or at a time to which a proper adjournment* has been made. In all cases the sale must be begun on the day fixed by law or notice.* A sale made at a time not appointed or provided for by law is without authority and void.® A sale at a time other than that named in the public notice of sale is void ; ® and a deed showing that the land had been sold two days before the time advertised for sale is on its face void.'^ The power of an officer to sell for taxes is purely statutory, and if he sells before the time fixed by law, he is not acting within his authority and can pass no title.^ If a sale is advertised to take place at the end of twenty days from a certain date, and the days, excluding the day on which the property was taken on tax warrant, would end on Sun- day, the legal end would be on Monday, and the sale should be on that day ; and a return showing a sale at the end 1 Ludden v. Hansen, 17 Neb. 356 (1885). * KonkendorfE o. Taylor's Lessee, 4 Pet. (U. S.) 349 ; Conrad v. Darden, 4 Yerg. (Tenn.) 307; Essington v. Neill, 21 111. 139; Moore v. Brown, 11 How. (U. S.) 414 ; see Noyes v. Haverhill, 11 Cush. (Mass.) 388; Pierce V. Benjamin, 14 Pick. (Mass.) 356; Prindle v. Campbell, 9 Minn. 212; Chaplin ». Holmes, 27 Ark. 414, 417 ; Park.u. Tinkham, 9 Kan. 615; Den d. Love V. Wilbourn, 5 Ired. (N. C.) 347; Den d. Avery v. Rose, 4 Dev. (N. C.) 549, 554; Doe d. Taylor v. Allen, 67 N. C. 346. » § 497. ^ § 497, last few lines. ^ See § 489 Mass., N. H., and Iowa decisions, §§ 490-494 111., § 495 Ohio, § 496 N. Y. ; Vernon v. Nelson, 33 Ark. 750, 751 (1878) ; Entrekin ». Chambers, 11 Kan. 378 (1873) ; Plympton v. Sapp, 55 Iowa, 196 (1880) ; Mead v. Day, 54 Miss. 58; Mayer v. Peeples, 58 id. 628; Chandler v. Keeler, 46 id. 599 (1877). In an action for possession under a tax deed the tax-sale register is admissible to the time of sale. Roddy v. Furdy, 10 S. C. 138 (1878); Dougherty v. Crawford, 14 id. 629 (1880) ; McGehee V. Martin, 53 Miss. 521 (1876); Harkreader v. Clayton, 56 id. 394 (1879). • Sheehy v. Hinds, 27 Minn. 261, 262 (1880). , ' Cooke V. Pennington, 15 S. C. 185 (1880). « Gomer v. Chaffee, 6 Colo. 314 (1882). 442 TIME. § 489 of the period named -will be presumed to intend a sale on Monday.^ Whether a sale made on Sunday would be valid or not in the absence of statutory provisions bearing on the point is an interesting question, but not one likely to arise. A verdict returned and received on Sunday is good.^ It would rather tend to prevent the due observance of Sunday by the jury to keep them penned up twenty-four hours longer.^ Service of attachment may "be made on Sunday in Indiana, or giving notice of an award. Prior to the establishment of the Chris- tian,, religion all acts valid on any day were valid on the first day of the week ; afterward the same rule held until changed by law. The Church changed the rule so far as to prohibit judicial acts on that day, and the rule was adopted into the common law ; but this did not apply to ministerial acts. Writs continued to be returnable on Sunday; and where no stat- ute intervenes, all ministerial acts done on Sunday ai'e valid.* Under the Arkansas law of 1867, when the collector failed to sell non-resident land on the day appointed by law for sale, the County Court could order a sale on a different day.* § 489. The sheriff's power to sell land for taxes being on condition that it be exercised within a certain time, the legis- lature cannot by a private act give him power to sell after the expiration of the time allowed by law, as this would be to take the owner's property without process of law.^ In New Hampshire, a sale made after the return day of the warrant 1 Picket V. AUen, 10 Conn. 155 (1834). " Cory V. Silcox, 5 Ind. 373, 374 (1854); Hiller v. English, 4 Strob. (S. C.) 586; Baxter v. People, 8 111. 385; Hoghtaling w.Osbom, 15 Johns. (N. Y.) 119; Bedoe v. Alpe, Sir W. Jones, R. 156; Butler v. Kelsey, 15 Johns. (N. Y.) 177. » Kiger v. Coats, 18 Ind. 154(1862); Swann v. Broome, 3 Burr. 159; 5 S. C; Mathews o. Ansley, 31 Ala. 20; Wilson v. Tucker, 1 Salk. 79; Lyon V. Strong, 6 Vt. 219; Story v. Elliot, 8 Cow. (N. Y.) 27; Shippy v. Eastwood, 9 Ala. 198; Hooper v. Edwards, 18 id. 280; Drury v. De Fon- taine, 1 Taunt. 135; Sayles v. Smith, 12 Wend. (N. Y.) 57; Sargeant v. Butts, 21 Vt. 101; Richardson v. Kimball, 28 Me. 475. * Spain V. Jphnson, 31 Ark. 314 (1876). « Doe d. Taylor v. Allen, 67 N. C. 346. 443 § 491 THE SALE. is valid.^ In Iowa, under § 776 of the Revision, providing that if from neglect of officers to make returns or from other good cause the sale cannot occur on the first Monday of October, the treasurer shall make the sale on the first Monday of the next succeeding month in which it can be made, allow- ing time for publication, it was held that the reasons or causes for making the sale at such other time than the first Monday of October need not appear of record.^ § 490. The twenty-sixth section of the" revenue law of Illinois, of Feb. 26, 1839,3 contemplates a notice of the appli- cation for a judgment upon the delinquent list, and of the sale, in the same advertisement, and fixes the day of sale " on the second Monday next succeeding the said term of the said Circuit Court," at which the application is made, and in which the judgment is rendered ; and the law further pro- vides " that it shall be the duty of the clerk, within five days after the adjournment of said court, to make out under the seal of said court a copy of the collector's report, togethef with the order of the court thereon, which shall hereafter constitute the process on which all lands shall be sold for taxes, and deliver the same to the sheriff of his county ; and the sheriff shall thereupon cause the said lands to be sold on the day specified in the notice given by the collector for the sale of the same, etc. ; " and the statute further declares that the deed of the sheriff shall be conclusive evidence " that the sale was conducted in the manner required by law." In the more populous counties of the State the session of the court continued from two to six weeks ; in the smaller coun- ties the court did not sit longer than a week, and in some only for a few days. § 491. The question necessarily arose," upon the construc- tion of this statute, whether the words, " second Monday next succeeding the term of the court," had relation to the first day of the term, or to the day of the adjournment of the court. In counties where the term of the court was fixed for 1 Cahoon v. Coe, 52 N. H. 525; citing Homer ». Cilley, 14 id. 85, 99; Wells V. Burbank, 17 id. 393 ; Smith v. Messer, Id. 420. 2 SuUy V. Kuehl, 30 Iowa, 275. » See § 367. 444 TIME. § 491 one week only, it was immaterial which period of computation was adopted, as in either case the day of sale would be cer- tainly known to all persons interested in the proceeding. But where the law authorized the court to continue the term beyond the period of one week, if the time was computed with reference to the day of adjournment, these consequences would follow : (1) The owner and those desirous of attend- ing the sale would be bound to take notice at their peril of the matter of fact as to when the court actually adjourned ; and (2) The sale would not take place imiformly throughout the State. In the small counties the sale woidd be on the second Monday succeeding the commencement or end of the term (the term invariably commencing on Monday, or some intermediate day of the week, and ending at twelve o'clock on Saturday night), while in the lai^r counties the day of sale would depend upon the time of the adjournment of the court. On the other hand, as the clerk was authorized and required to deliver the precept of sale to the sheriff within five days after the adjournment of the court, it seemed to many that the day of adjournment was the time for the commencement of the computation. There seemed to be strong reasons for either construction, — for holding that the sale would be legal on the second Monday succeeding the commencement of the term, or on the second Monday after its adjournment. The ambiguity in the language of the law gave rise to a diversity of practice under it ; and the day of sale floated between these conflicting opinions, until the pas- sage of the act of 1845,^ which fixed the " fourth Tuesday succeeding the commencement of the term " as the day of sale. The varied practice, however, under the old law gave rise to litigation, and the question at length came before the Supreme Court, at the December term, 1845, in the case of Bestor v. Powell.* This case came up from Peoria County, where the Circuit Court commenced its term on the 15th, and adjourned on the 28th day of April, 1841. The precept upon the tax judgment was issued on the 24th of that month, while the court was in session ; and the sales commenced on 1 Revised Statutes, ch. 444, § 47. » 7 Dl. 119. 445 § 492 THE SALE. the 26th and ended on the 29th day of April, so that no Monday intervened between the close of the term and the day of the sale. The court held the sale valid, upon the ground that by fiction of law the term constituted but one day, and that every act of the court had relation to that day ; but that without resorting to that fiction the adjournment might be presumed to ■ follow immediately after the entering of the judgment upon the tax list, as far as that proceeding was concerned ; the court in the exercise of this special and summary power, being regarded for the purposes of this ques- tion quoad hoc a special tribunal, the powers of which ceased upon the rendition of the judgment, except so far as it was necessary for the issuing of the precept to enforce the judg- ment and to enable the sheriff to make his return of the sale. However, the court intimated an opinion that a sale on the second Monday succeeding the adjournment of the court would have been equally valid ; but inasmuch as this question was not fairly presented by the record in that case, it has been very properly regarded as a dictum of the judge who delivered the opinion. § 492. In Hope v. Sawyer ^ the question whether such a sale could be sustained was directly before the court upon this state of facts : the judgment was rendered on the third Monday of September, 1841, being the day of the commencement of the term of the Circuit Court, the precept issued Oct. 18, 1841, and the sale took place Oct. 19, 1841, which was the second Monday succeeding the adjournment of the court. The sale was held void. Treat, C. J. : " Ought the sale to take place on the second Monday succeeding the first day of the term, or on the second Monday after the close of the term ? The opinion was expressed, in the case of Bestor v. Powell, that the former day was the one intended by the legislature ; and upon a further consideration of the question we are well satisfied that such is the proper interpretation of the statute. It was, however, intimated in that case that a sale made on the latter day would be valid. We cannot assent to such a conclusion. It was evidently the design of the legislature to prescribe a uniform mode for the 1 14 111. 254. 446 TIME. § 493 sale of land for taxes. The time designated for the sale was to apply to all cases. The sale was to be made on the second Monday after the rendition of the judgment. The collector was not vested with any discretion as to the day of sale. The law fixed the time, and it was his duty to pursue it. If he could properly make sales on both of the days indicated, it would be very difficult to hold that he might not sell on any other day. In requiring the sale to take place on the second Monday after the commencement of the term, the day of sale was made certain. The time when a term of the court shall commence is a matter of positive law ; and the public would therefore know to a certainty when the sale would be made. Owners and bidders would have specific information of the day of sale. Sales for taxes would uniformly follow within two weeks from the rendition of the judgments. A different con- struction would leave the time of sale uncertain and contingent. It would be made to depend on the fact when the term of the court might end. The day of sale could not be known until the court had actually adjourned. It could not be ascertained from the report of the collector ; and sales would not be made uniformly within a certain time after the judgments were entered. In some counties the court remains in session for two or three days only, in others for as many weeks, and in others for a still longer period. The object of the collector's notice was to apprise owners of the proceedings against their property, and secure competition at the sale. That object would be in a great degree defeated if the sale could be made on the second Monday after the close of the term. The effect would be to lessen competition at the biddings, and sacrifice the interests of the owners of property ordered to be sold. The direction to the clerk to issue the precept within five days after the adjournment of the court does not necessarily indicate the second Monday after the close of the term as the proper day of sale. § 493. " It was said in Bestor v. Powell, ' By fiction of law the term is one day ; but as the judgment and proceedings on these applications arc entered and kept in a separate record, without resorting to the fiction, the adjournment may be pre- 447 § 495 THE SALE. sumed to follow immediately upon the entering this judgment as to this proceeding.' The revenue law imposed this new and peculiar jurisdiction on the court, and required it to be exercised before the court proceeded to other business. It was clearly the design of the law that the judgment should be entered on the first day of the term. In legal contemplation it is entered on that day ; for all the purposes of the revenue law the court may well be considered as at an end when the judgment is entered. The sale in question was not made on the second Monday after the rendition of the judgment, and was therefore invalid." § 494. This doctrine was reaflBrmed in Polk v. Hill,^ where the judgment was entered May 13, and the sale took place on the third day of June thereafter. The Ohio statute of Jan. 30, 1820,^ provides "that previous to the sale of any land, etc., it shall be the duty of the auditor to advertise, etc., which advertisement shall set forth the time and place of sale, etc., and the auditor shall attend at the time and place of sale, and proceed to seU, etc., and if any person or persons to whom the same may be struck off shall refuse to pay, etc., the auditor shall proceed to offer the same from time to time, for the space of three days in succession, unless previously sold." § 495. In Wilkins's Heirs' Lessee v. Huse,^ which was an action of ejectment, the plaintiff deduced a regular chain of title, and unless that title was divested by a tax sale, under which the defendant claimed, he was entitled to recover the premises in controversy. The evidence was that the land was advertised, in due form of law, to be sold on June 1, 1824. From the retiirn of the auditor, it appeared that the land was in fact sold June 2, 1824, and no reason was assigned in the return why it was not sold on the day specified in the notice. The Circuit Court charged the jury that the sale was illegal ; a verdict was thereupon found for the plaintiff, and the de- fendant moved for a new trial upon the ground of a misdirec- tion of the judge upon the point of law relative to the legality of the sale. The motion was overruled, the court holding the sale illegal. Hitchcock, J. : " The objection made in the pres- 1 15 m. 130. » § 7. » 10 Ohio, 139. 448 TIME. § 496 ent case is to a proceeding (under the law of Ohio requiring a judgment) after judgment. Whether this objection is well made depends upon the seventh section of the before-recited act, and more particularly upon the construction of the last clause of the section. Now, the question arising is as to the intention of this last clause. Is it to give the auditor three days in which to sell all the lands against which judgments are rendered, should so much time be necessary ; or must he offer all which he does offer upon the day appointed for the sale, and if there is not time to sell the whole suspend the proceedings as to those which cannot be offered for want of time, except as to such as have been struck off, but upon which bids have not been paid ? I must confess that my mind in- clines strongly to the former construction. This, however, is not the most obvious construction. Giving this clause, in connection with the whole section, such construction, and the intention is that all the land must be offered for sale on the first day named in the advertisement. But in the event that any purchaser shall fail to pay the judgment and costs, then the county auditor is authorized to offer the same land on the second and third day, if not previously sold ; and this is the construction which a majority of the court hold that it must receive. Giving the section this construction, it would seem to follow, of course, that if the land was sold on a day different from that named in the advertisement, some reason consistent with the law must be shown why it was so sold, and this should appear from the return of the officer effecting the sale. The object of an advertisement is that the public may be notified of the time and place of sale, that opportunity may be given for competition. The object is not attained if an officer may advertise on one day and sell on another. Such a proceeding cannot be sustained. § 496. In Dubois v. Poughkeepsie ^ it was held .that a sale actually occurring after the period of the lien had expired was void, although the proceedings had been begun, by advertise- ment, within the two years. The pourt rested upon the anal- ogy of the cases, holding that it is not enough that proceedings 1 22 Hun (N. Y.), 122 (1880). VOL. I. — 29 449 § 497 THE SALE. upon a mechanic's lien are begun within the year, and that the jvdgment must itself come inside the time fixed by law for the continuance of the lien.^ § 497. Adjournment. — The officer may adjourn the sale if he deems it for the best interest of all concerned. It is for that he is to act.^ In Michigan it has been held that unless express^ power of adjournment were granted in tlie statute, none would exist by implication;^ but the better opinion is that implied® power does exist, and that an adjourn- ment of a sale by the collector is proper, but it must be to a definite time, and the sale must be continued at the time set.^ Where an adjournment was to one P. M., and instead of waiting until that hour the land was sold at ten a. m., the sale was void, although the land sold well, and .the owner's attorney was present and knew of the mistake and said nothing.^ The collector could not bind the property except by proceed- ing according to law. Where the law gives the board of supervisors power to designate a time for the sale of lands, which " from any cause " were not sold on the day fixed by law, the board cannot, on the day fixed by law for sale, make an order relieving the collector of his duty to sell the land on that day. Tlie purpose of the statute is to provide for fail- ures to sell at the time appointed ; and the supervisors can only exercise their power of designation mtAsequentlff to that day.^ Tlie deed is prima facie evidence of a legal adjourn- ment where the sale appears to have occurred after the day set by law.* Where the law required the sale to begin on the second Tuesday of April, and the deed showed a sale on the 9th of June, the court said the deed did not show on its face 1 Freeman v. Cram, 3 N. Y. 305; Benton i>. Wickwire, 54 id. 226; Era. Ind. Sav. Bank v. Goldman, 75 id. 127. 2 Wells V. Austin, 10 A. Rep. 405 (Vt. 1887) ; 59 Vt. 157. ' § 500. * § 499. « § 498. 6 Thompson v. Ware, 43 Iowa, 455 (1876). ' BuzzeU V. Johnson, 54 Vt. 91 (1881). 8 Brougher v. Conley, 62 Miss. 358 (1884). » Bullis V. Marsh, 56 Iowa, 750 (1881); Easton v. Saveiy, 44 id. 654; Eldridge v. Kuehl, 27 id. 160; Sully ». Kuehl, 30 id. 275; Love v. Welch, 33 id. 192; Lorain v. Smith, 37 id. 67. 450 ADJOURNMENT. § 498 that the sale took place at a time not authorized by law, for the sale might have begun on the proper day and been con- tinued from day to day, selling one or two lots each day till the 9th of June. "To hold the deed void on the ground alleged, we must find that the day of sale was, ex necessitate legis, a day on which the sale could not properly take place." ^ While the collector may continue the sale from day to day, he must hegin it on the day set by law, or his power will be gone.^ Where a sale of land for taxes is not commenced on the day specified in the notice of sale, the land cannot be sold at a subsequent time.^ § 498. It has been held that without express authority con- ferred by statute to adjourn a sale from day to day, the offi- cer must sell all the lands embraced in his list on the day named in the advertisement, or suspend the sale, so far as those which remain are concerned. Still, it is difiicult to per- ceive any substantial reason why the general principle — that when a power is conferred by statute every incident essential to carry the power into complete effect goes with it by im- plication* — does not apply. Where the law fixes the day of sale, and appoints an officer to conduct it, and is silent as to the power of adjourning the sale, and it is impossi- ble, on account of the great number of parcels of land upon the delinquent list, for the officer to sell the whole in one day, the power of continuing the sale to another day would seem to be necessarily implied, in order to prevent a failure of jus- tice, in which the State is essentially interested. She might be deprived of the greater portion of her revenues unless such a power was sustained. And no injury could possibly accrue to the owners of the land, if the adjournment was publicly announced by the officer at the close of the first day's sale. » Wood V. Meyer, 36 Wis. 312 (1874). 2 Sullivan p. Donnell, 90 Mo. 279 (1886). 8 Prindle v. Campbell, 9 Minn. 212. * Mitchell V. Maxwell, 2 Fla. 594; Witherspoon v. Dnnlap, 1 McCord (S. C.) 516; 12 Coke, 130, 131; 9 Bacon, Abr. 220, ed. 1846; Ventress i-. Smith, 10 Pet. (U. S.) 161; Pittstown Ov. ». Plattsburgh Ov., 18 Johns. (N. Y.) 418; Wilson v. Troup, 2 Cow. (N. Y.) 195, 199, 233, 235; 1 Kent, note ; Field v. People, 3 111. 79, 88. 451 § 501 THE SALE. § 499. But in the case of Sibley v. Smith ^ it was held that this principle of taking power by implication was not appli- cable in the construction of this class of statutes ; that being in derogation of the common law, and authorizing proceedings the effect of which is to divest the citizen of his title to real estate, such statutes should be construed strictly, although made for the public benefit; that their provisions cannot be enforced further than they are clearly expressed ; that the officers acting under them can take no power that is not expressly delegated to them; that they can assume no power by implication; and that when their acts are not clothed with the authority of the statute they are of no validity whatever. The same principle is affirmed in other cases.^ § 500. Pennsylvania and Iowa. — In Pennsylvania the stat- ute authorized the adjournment of the tax sale " from day to day ; " and a sale made on an adjourned day, without a day intervening between that and the first day of the sale, was held valid, upon the ground that such had been the uniform usage in the State in conducting sales made under the law.^ Where real property has been once duly advertised for sale for taxes under the Iowa statute, the sale thereof may be made at any time thereafter, pursuant to adjournments regularly made, and need not be advertised again.* § 501. The Sale must be made at the Place designated in the Advertisement. — If the notice is of a sale to take place at the court-house door, and it is made at some private room or house in the county town, or elsewhere in the county, there can be no question but that the sale is void.® It is just as important that the owner should know where to go in order to arrest the sale by the payment of the tax, and that those 1 2 Mich. 486, 490. " Doe t). Chunn, 1 Blackf. (Ind.) 336, 338; Van Home's Lessee v. Dorrance, 2 Dall. (U. S.) 804; Sharp v. Johnson, 4 HUl (N. Y.), 92, 99. » Burns v. Lyon, 4 Watts (Pa.), 363. • Hurley w. Street, 29 Iowa, 429. 6 See Vasser v. George, 47 Miss. 713, 721; Koch v. Bridges, 45 Miss. 247, 256. 452 PLACE. § 502 desiring to purchase should know where to find the officer exercising the power of sale, as it is that the time named in the advertisement should be literally adhered to in the making of the sale. Thus, if the statute requires the sale to be made " before the court-house door," a sale made inside the court- house is not good.^" So in Georgia, where the statute was silent as to the place of sale, it has been held that a sale should be had in the county where the property is situated.^ Whenever the sale is advertised to be in one place, and was held in another, the variance is fatal.^ A sale about twenty miles from the land will not be set aside, where it appears that the officer acted in good faith ; no objection was made by plaintiff to the place of sale during the three months the sale was advei-tised ; and no steps were taken to set it aside for more than five years after the said sale.* § 502. The Sale must be made by the Proper Officer. — April 10, 1850, a law was passed in New York changing the author- ity to sell non-resident land from the comptroller to the treas- urer. In 1852 a sale was made by the treasurer for taxes levied in 1849, and returned to the comptroller before April 10, 1850, and the sale was held good.^ A sale of laud by the city collector under a judgment rendered before the adoption of a constitution which provided that only a general county officer should sell land for taxes, is not void, though the sale took place afUr the constitution went into effect. Since the judgment was prior to the constitution, and not affected by it, the sale, which is only the execution of the judgment and relates back to it, is likewise exempt. The rights vested at the judgment, which was an order that the land be sold as the law directs, i. e., as the law then stood, by the city collector, are not within the -sweep of the subsequently adopted constitu- ^ Rubey v. Huntsman, 32 Mo. 501. And see Keene v. Barnes, 29 Mo. 377 ; see also Kelly ». Craig, 5 Ired. (N. C.) 129 ; McNair v. Jenson, 33 Mo. 312 (1863). 2 Rice V. Johnson, 20 Ga. 639. » Richards v. Cole, 31 Kan. 206 (1884). * Howland v. Petty, 10 A. 650 (R. I. 1887). 6 Ensign v. Barse, 14 N. E. 404 (N. T. 1887). 453 § 503 THE SALE. tion, which expressly provides that it shall not be considered retrospective.^ In Twombley v. Kimbrough ^ it was held that the collector holding the tax book and warrant stands in the same attitude as if he held an execution against an individual and had levied it upon his lands ; and that the law governing sales on executions in cases like this, in the absence of over- ruling provisions to the contrary, must govern tax sales ; and therefore the collector for a particular year is the only officer authorized to collect the taxes for that year, and although his term of office expires before the day fixed for the sale of lands for such taxes, he alone can make such sales ; and he may do this himself or by his deputy. It is only when the collector has died or been removed from office, or is otherwise disquali- fied to act, that the actual collector can make such sales ; and therefore the tax book for the year 1856 having been given to one collector and the lands sold by another collector in 1857, the former collector being alive and not disqualified from making such sale, the sale was void. In this case the collector who made the sale had been the deputy of his predecessor ; but as the sale was not made by him as such deputy, but as col- lector for 1857, the sale was void. Where the officer intrusted with the power of sale is authorized by the statute or common law to constitute and appoint deputies, it seems that a sale by a deputy is valid, although the power is not expressly dele- gated to him, upon the principle that all the ministerial duties of an officer may be performed by deputy.^ So in Wisconsin an acknowledgment of the execution of a tax deed by the deputy for and in the name of his principal was held valid.* The act of the deputy tax-collector in making or signing the sale is the act of the collector, and the sale is valid.^ § 503. The sale must be to the " highest bidder," which may mean the one who bids the greatest sum for the land,^ or the 1 Garriok v. Chamberlain, 97 111. 630 et seq. (1881). » 24 Ark. 459. * Chapman v. Bennett, 2 Leigh (Va.), 329. * Huey V. Van Wie, 23 Wis. 613. 6 Villey V. Jarreau, 33 La. Ann. 296 (1881). « § 504. 454 HIGHEST BIDDER. § 505 one who will pay taxes and charges for the smallest piart of the land.^ The collector cannot substitute another for the highest bidder, though all agree.^ A recital of the fact that the purchaser was the highest bidder is sometimes required in the return of sale^ or in the deed.* § 504. Greatest Sum. — The " highest bidder " ordinarily means the person who offers to pay to the collector for the land put up the largest sum of money. This is the rule in Pennsylvania ; but the purchaser simply pays into the treas- ury the amount of the tax, interest, and costs actually due upon the land, and executes and delivers to the treasurer a bond for the residue, usually called a " surplus bond." This is intended for the benefit of the owner of the land in case he submits to the sale and is willing to receive the surplus.^ § 505. Least Quantity of Land. — In most of the States, however, the highest bidder is he who will pay the taxes, inter- est, and costs due upon the tract offered for sale, for the least quantity of it.^ There is no way of securing competition at a sale but by selling the entire parcel upon which the tax is assessed, to the person who will pay the highest amount of money for it, or pay the arrears upon the land for the least quantity of it. A violation of either rule works an injury to the owner of the land ; in the one case, the surplus money to which he is entitled under the law is reduced in amount ; and in the other, a greater quantity of his land is sold to pay the tax than the law contemplates. If the record of a tax sale shows that the highest bidder, being " the person who will pay the taxes and costs taxed on each bid or lot of land for the least quantity of the saine," " shall be the purchaser," and then shows that A. was the purchaser, that is evidence that he was also the highest bidder.^ Under the act of Feb. 6, 1863 (12 Stat, at Large, 640), amending the act of June 7, 1862, which amendment was intended to be a substitute for § 7 of said previous act, the commissioners of taxes, though " avr 1 § 505. « § 506. « § 507. * § 508. 6 See § 660. 8 See Lovejoy v. Lunt, 48 Me. 377. ' Smith V. Messer, 17 N. H. 420. 455 § 506 THE SALE. thorized " to bid off property to the United States " at a sum not exceeding two thirds of its assessed value," are not bound to bid it up so as to make it bring in all cases that amount ; and a sale to a private person for a sum sufficient to pay the tax, interest, and cost is not for that reason invalid.^ When the law requires sale to him who will take the "smallest quantity " for the amount due, a sale to the " highesfcbidder " simply is void.* § 506. The Collector cannot substitute Another for theBigh- est Bidder. — In Keene v. Houghton ^ the statute required the collector to sell non-resident lands to the highest bidder, at public auction, after giving due notice, etc. The land in ques- tion was struck off to Isaac Tyler for the taxes and costs, he being the highest bidder. Afterwards, and before the pro- ceedings were returned and recorded, in pursuance of the statute, the defendant Houghton was substituted as a pur- chaser in lieu of Tyler ; and the sale was so returned. A deed was executed and tendered by the collector to Houghton, which the latter refused to receive, because he was advised that the proceeding was illegal ; that the collector had no au- thority to make the substitution. Keene, the collector, there- upon sued Houghton for the purchase-money, and the court held that he was not entitled to recover. Shepley, J. : " In the execution of a power given by statute there must be a strict conformity to its provisions, or the proceedings will be ineffectual. The person authorized cannot adopt a different mode of proceeding, which he may judge would accomplish the same object in a different manner, and be more beneficial to those interested. The collector in this case is authorized to deed only to the highest bidder, that is, the person who would bid the highest price for the land by taking the least quantity of it, and pay the amount due ; and he only could acquire a title to the land by such a sale ; for a sale not in conformity to the provisions of the statute could not give a title. The bill of exceptions states that Isaac Tyler was the 1 Tomer v. Smith, 14 Wal. (U. S.) 553, 562, reversing s. c. 18 Gratt. (Va.) 830. ' Reynolds v. Lincoln, 12 P. 449 (Cal. 1887); 71 Cal. 183. » 19 Me. 368. 456 HIGHEST BIDDER. § 508 purchaser at the sale ; and it does not appear that he refused to comply with the conditions of sale, or that he acted as the defendant's agent, or assented to the transfer of his bid to the defendant ; and the plaintiff had no right to substitute the de- fendant for Tyler as the purchaser." In this case it appeared that the defendant was not present at the sale ; if he had been there, and declined bidding, and afterwards, by agree- ment with Tyler and the collector, been substituted as pur- chaser, the transaction would have been a fraud upon the law, as its direct tendency would have been to destroy competition at the sale. § 507. Recital in Return of Sale. — A statute of New Hampshire required the officer who conducted the sale to make out and return a complete record of his proceedings. Where the officer failed to state in his return that he sold the land " to the highest bidder," the sale was held void.^ And oral evidence would undoubtedly be inadmissible for the pur- pose of supplying the omission.^ The form of the deed pre- scribed by the law of Illinois, and used in that State up to 1839, contained the recital : " And whereas, at the time and place aforesaid, A. B. offered to pay the aforesaid sum of money (for the whole tract or a part thereof, as the case may be) which was the least quantity bid for." * The same recital is substantially contained in all the forms prescribed and used since that time. § 508. Recital in Deed. — Similar recitals are required in the forms of deeds used in other States. A failure to recite the fact that the grantee in the deed was the highest bidder would render the deed void; and especially would it be dcr prived of its legal effect as evidence in those States where a deed executed in the form prescribed is declared to be prima facie, or conclusive, evidence of a title in the purchaser at the tax sale.* 1 Cardigan Proprietors v. Page, 6 N. H. 182; Bean v. Thompson, 19 id. 290. 2 Kellogg's Lessee v. McLaughlin, 8 Ohio, 114. » Laws 1826, pp. 78, 79. * Per Judge Tucker in Kinney v. Beverley, 1 Hen. & M. (Va.) 531 ; Maxcy v. Clabaugh, 6 El. 26. 457 § 512 THE SALE. § 509. The sale mast be for cash ^ unless credit is ex- pressly authorized.^ If the credit is part of the agreement of sale it is absolutely void ; * but extension of credit to the purchaser merely as an act of the officer after the sale, and not as a part of it, does not avoid the proceedings.* In North Carolina the price must be paid immediately.^ The purchaser cannot be called on for anything beyond his bid ; all oharges, costs, etc., must come out of that.® § 510. Thus, in Gushing v. Longfellow,^ where the proof was that the officer who made the sale gave credit to the purchaser for the amount of his bid, the sale was held invalid. By the court: " This he was not authorized by law to do. He should have sold for cash down. Public agents authorized to make sales, in the absence of any express authority to the contrary, can do no otherwise. Those who deal with them are bound to take notice that such is the case, and they be- come privy to the erroneous proceedings. If one deals with' a private agent even, who has not an express or implied au- thority to sell on credit, the title to any article purchased of such agent will not vest in the vendee as against the princi- pal. Public agents can seldom, if ever, derive authority from implication." § 511. The same principle was applied in Illinois ». Dala- field,* where the State of Illinois authorized a loan, and ap- pointed agents to sell the bonds " at not less than their par value." A sale was made nominally at par, the State bonds drawing interest from the date of their sale, the proceeds of the sale to be paid to the State by instalments. The sale was held void upon two grounds: (1) The bonds did not bring their par value ; (2) They were sold upon credit. § 512. And in Dickenson v. Gilliland ® it was held that a sheriff, in permitting a redemption by a judgment creditor of land sold under execution, acts under a delegated and spe- cial authority, and must strictly comply with the law ; that he » §§ 510-512. 2 § 513. « Donnel v. Bellas, 34 Pa. St. 157. * § 514. 6 § 515. 6 Ritz V. Bowers, 9 Watts (Pa.), 297 (1840). ' 26 Me. 306. s s Paige (N. Y.), 527; s. c. 2 HUl (N. Y.), 159. 9 1 Cow. (N. Y.) 481, 498. 458 FOR CASH. § 514 cannot receive a less sum than the law requires to redeem, nor can he give credit for the redemption money to the person .who desires to redeem. Even the power of a factor to sell upon credit depends upon an express authority from his prin- cipal, or the usage of trade in the particular business with respect to which he is agent.^ § 513. It therefore seems clear, as well upon principle as by the adjudged cases, that an officer intrusted with the power of selling land for taxes due upon it cannot sell upon credit, unless he is expressly authorized, as in Pennsylvania, where the purchaser gives a surplus bond for a portion of the purchase-money. § 514. But where there is no agreement, before the sale, between the officer and bidder, that a credit shall be given for the whole or any portion of the bid, and after the sale the purchaser pays a part of the purchase-money, and gives to the officer his note or other obligation for the payment of the residue at a future time, the sale will be maintained. Such were the facts in Longfellow v. Quimby,^ where the court say : " This is unlike a case where the stipulation is made before the sale that a credit is to be given the purchaser. Here the officer, as such, was accountable for the whole sum for which the land was sold, and the taking of the note for a portion of the purchase-money was a matter between the purchaser and himself, in his private character." The same principle would undoubtedly apply where no portion of the purchase-money is paid, but the officer accepts the promise of the purchaser in satisfaction of the bid. The officer in that case would be liable to his superiors, and must seek his remedy upon the 1 Forrestier v. Bordman, 1 Story, C. C. (U. S.) 43 ; Van Alen v. Van- derpool, 6 Johns. (N. Y.) 69; M'Kinstry v. Pearsall,3 id. 319; Kobertson V. Livingston, 5 Cow. (N. Y.) 473; Hapgood v. Batcheller,4 Met. (Mass.) 573; Greely v. Bartlett, 1 Me. 172; Scott v. Surinan, Willes, 400; Good- enow V. Tyler, 7 Mass. 36; Burrill v. Phillips, 1 GaU. C. C. (U. S.) 360; Houghton v. Matthews, 3 Bos. & P. 485, 489; Myers v. Entriken, 6 Watts & S. (Pa.) 44. A collector has no right to receive Tennessee bank paper for taxes, nor is he in fault if he refuses to accept a part of the sum charged on the lands. Hunt v. McFadgen, 20 Ark. 277. s 29 Me. 196. 459 § 615 THE SALE. promise ; and if no agreement to sell upon credit appears to hare been made before the sale, he will be permitted to recover.^ § 515. In North Carolina the law provides that the highest bidder must immediately pay the price to the sheriff and take a receipt setting out the land and the sum paid ; and this must be recorded in the registry of deeds. A failure in this, respect voids the title. " The main object of the law being to raise revenue for the State, the courts will not exact such a rigid observance of forms as will defeat such primary purpose, but will apply to sales for taxes the same reasonable rules of con- struction as govern sales under execution for private debts. In regard to sales of the latter sort, the rule has always been, that while a failure on the part of the oflBcer to observe cer- tain directions of the law would defeat any sale he might make, there, were other matters apparently mandatory which might be omitted without being attended with consequences injurious to purchasers ; and the true test in such cases is the knowledge which the purchaser has, or is presumed to have, because of his opportunities to know of the officer's default. Innocent purchasers are protected ; that is, those who did not and could not, because of want of opportunity, know whether the requisites had been complied with or not. But where the violation of the law is known to the purchaser, and more especially when he has procured it, he will receive no protec- tion, and can take no benefit from his purchase. Such a person is not permitted to say that that which the law requires him to do is unimportant and merely directory; but he must do all the law enjoins upon him, and do it in the manner and at the time prescribed, and doubly incumbent is this duty on him if prejudice to another can be the result of failure or delay on his part. An application of this principle to the present case seems fatal to the claim of the purchaser*" ^ Where land is bid off to the county, it is not necessary that anything should be paid at the time.^ > See Anderson v. Rider, 46 Cal. 134. » Hays V. Hunt, 85 N. C. 306-308 (1881). » MoCauslin v. McGuire, 14 Kan. 247 (1875). 460 BACK TAXES. § 516 § 516. The Amount for which the Land must be sold, and the Uffect of Omitting back Taxes. — In Louisiana a sale for less than the whole amount of taxes due on the land, with the penalties, costs, and expenses added, is a nullity.^ But in Iowa it is held that the words " total amount of taxes " do not include taxes voted in aid of a railroad ^ The sale of a tract of land for more than the amount due upon it is not void for that reason ; under a statute which required a sale to the person who would pay the taxes for the least quantity of the land upon which it was assessed, the owner is not prejudiced by sugh a sale, inasmuch as he is only bound to pay the tax, interest, and cost due upon the land when he redeems froin the sale.^ And under the same statute it has been held that where the whole amount of the tax due upon the land was not bid, the sale, though void in the hands of the original pur- chaser, will be sustained in favor of a bona fide grantee, claiming title under such purchaser, without notice of the irregularity in the sale.* Notwithstanding the provision of § 871 of the Iowa code that a tax sale " shall be made for and in payment of the total amount" due on the land, a sale for less than the total will not be set aside at the instance of the former owner.^ The fee of the treasurer for issuing a tax- sale certificate is included in the costs and charges of sale.^ The sheriff may include the fee for filing with the recorder a duplicate certificate of sale.^ Tax laws are presumed to operate only prospectively, and an amendment allowing sale to be made for the marshal's fees will not apply to assess- ments made before passage of the law, unless plainly so in- tended.^ When the State sells land under a judgment, it 1 TiUofBon V. Small, 13 Neb. 202 (1882) ; O'Donohue v. Hendrix, Id. 257; McGavock o. Pollack, Id. 535; Kenshaw v. Imboden, 31 La. Ann. 662 (1879). 2 Crowell V. Merrill, 60 Iowa, '53 (1882). 8 Peters v. Heasley, 10 Watts (Pa.). 208. See § 521. * Devinney v. Reynolds, 1 Watts & S. (Pa.) 328. 6 Kessey v. Connell, 68 Iowa, 430 (1886). 8 Kregelo v. Flint, 25 Kan. 695 (1881). » Harper v. Rowe, 55 Cal. 134 (1880). 8 Fuller V. Grand Rapids, 40 Mich. 395 (1879). 461 § 518 THE SALE. cannot defeat the purchaser's title by a resale of the land for taxes which were due and might have been included in the judgment It has abandoned such taxes omitted.^ In this case the omitted taxes were for years prior to those for whose taxes the land was sold. The same land cannot be twice sold at the same tax sale, though the taxes may be for different years. The second sale is invalid, the purchaser is not entitled to a deed, and no redemption therefrom is neces- sary .^ Where chancery decreed a lien on six lots for the taxes of 1873 to 1882, and sale was made of three lots for the taxes of 1884, leaving three lots sufficient to pay the judgment, it was held that the purchaser could compel the sale of the remaining lots before resort to those he had bought.^ Where the owner of property allows it to be sold for less than he knows is due, and buys it himself, another tax may be levied to make up the deficiency.* § 517. Sale by County after a State Sale of the same Land. — When the State has purchased land for State taxes, a subse- quent sale of the same land for county taxes while the title is still in the State is void.* § 518. The Whole Iiand or Interest sold must be liable for the Whole of the Taxes for -which it is sold. — If part of the land is liable for the taxes and the rest not,® or if the whole or a part of the taxes is really due on another tract than the one sold for them,^ or if the whole or any portion of the taxes is illegal, the sale is void ; ^ as where the taxes are excessive, however small the excess,® or where land is sold for the taxes of several years, and those for one of the years are illegal.^" In Iowa, however, the sale is good if any part of the taxes were legal.^^ By statute, taxes other than those upon the particular parcel of real estate may be a lien upon it, even 1 Law V. People, 116 HI. 244 (1886). 2 Shoemaker v. Lacy, 45 Iowa, 423, 424 (1877). » Thorington v. City Council of Montgomery, 2 So. Rep. 513 (Ala. 1887); 82 Ala. 591. * Shelley v. St. Charles County, 28 Fed. Rep. 875. s Bradford v. Walker, 5 S. W. 555 (Ky. 1887). » § 519. ' § 520. 8 §§ 521-523. » § 521. " § 522. " § 523. 482 PART ONLY OP THE LAND LIABLE. § 520 to the extent of imposing the whole taxes due from the owner upon one piece of land.^ § 519. Where a Part of the Land sold is liable to Sale, and the Residue is not, the Sale is void in toto. — Thus, in Moulton v. Blaisdell ^ the law required the collector to advertise and sell unimproved lands of non-resident proprietors, and improved lands of resident proprietors ; and in case of improved lands belonging to a resident of the State, but who resided out of the town in which the land was situate, the collector was directed to give an additional notice, in writing, to the owner of the land before making the sale. The facts of the case were, that the land in question belonged to a person who did not reside in the town where the land lay and the tax was assessed, a part of which was improved, and the rest unimproved. There was no proof of a notice in writing to the owner. The whole par- cel of land was taxed and sold as one estate. By the court : " The whole, both improved and unimproved, being sold at auction for one integral sum, upon one bid, the sale cannot be good in part and bad in part ; but if not valid for the whole, the title entirely fails." The sale was thereupon held void, upon the ground that one who owned improved land, but resided out of the town, was entitled to the additional notice mentioned in the statute ; that the fact that a portion only of the tract in question was improved made no difference. The owner may have been prejudiced by the sale, and the law will presume that he was. The advertisement was simply a con- structive notice. If the actual notice contemplated had been given to the owner, he would probably have paid the tax as- sessed upon the entire tract. He at least would have had an opportunity of doing so. The same principle was decided in Hayden v. Foster.^ § 520. 2%e Whole of the Taxes must be Due on the Land sold for them. — Where land is sold to pay taxes, part of which are due on that land and part on other lands belonging to a dif- ferent owner, the sale is void.* Taxes due on one tract are 1 Albany Brewing Co. p. Meriden, 48 Conn. 246 (1880). 2 24 Me. 283. » 13 Kck. (Mass.) 492 * Brown v. Snell, 6 Fla. 741 (1856). 463 § 521 THE SALE. not a lien on another tract in Illinois.^ A sale of land of Winston, assessed to Lane for taxes due by and assessed to Lane for other and different tracts belonging to him, is clearly void.^ Where the oflScers of a municipal corporation without awthority assess against a person land belonging to the corporation, bay the same for delinquent taxes, and convey the same upon redemption, the city is not estopped to claim the property as her own.^ § 621. Excessive Taxes.* — A sale made for taxes six cents too much is invalid.^ A sale for anything in excess of the true amount is void.® A sale for a sum in excess of the tax and legal costs is void, though the excess is small. " De minimis non curat lex " does not apply except in a very limited sense. The rule is that if the excess is as much as the small- est fractional coin authorized by law, the sale is void.'^ In Havard v. Day,* however, an excess of one and six-tenths of a cent, not in the levy, but in the tax collector's calculation, was held trivial and immaterial. And in Colman v. Shattuck * a return of four cents too much by the collector was held good, the maxim " De minimis " being applied. An excess of nine cents intentionally included within the amount for which the land is sold avoids the sale.^ In this case the court expressly noted that the excess was " substantial " in comparison with the total amount of the actual costs. The > Kepley v. Jaiisen, 107 HL 79 (1883). " Baskins v. Winston, 24 Miss. 431 (1852). » St. Lonis V. Gorman, 29 Mo. 593 (1860)^; see Rossire r. Boston, 4 Allen, 57 (1862). * See § 516; Pa. case. s Burroughs v. Goff, 31 N. W. 273 (Mich. 1887). 6 Boston Tunnel Co. v. McKenzie, 67 Cal. 490 (1885); AxteU v. Ger- lach, Id. 483 (§1 excess); Treadwell v. Patterson, 51 id. 637; Bucknall V. Story, 36 id. 67; Cnmmings u. Holt, 56 Vt. 384 (1883). ' Treadwell v. Patterson, 51 Cal. 638 (1877) ; Thayer v. Mayo, 34 Me. 139; Glidden v. Chase, 35 id. 90; Grosvenor v. Cheney, 48 id. 368; Boy- den V. Moore, 5 Mass. 365; Pickett v. Breckenridge, 22 Pick. (Mass.) 297; Cheney v. Stevens, 97 Mass. 77. « 62 Miss. 753 (1885). » 62 N. Y. 363 (1875). i» Genther v. Lewis, 24 Kan. 311 (1880). 464 ILLEGAL TAXES. § 522 charge was for publishing. " The fee paid the printer was eight cents. The fee charged was seventeen, — more than twice the legal fees." No more than is actually paid to the printer can be charged against the land ; and where the whole of the printer's legal fee, chargeable against the prop- erty for publishing, is so charged and the property sold, while only twenty per cent of the said charge is paid to the printer, the irregularity makes the deed voidable at any time within five years after the recording of it.^ Where land was assessed at $1.62 and sold for $1.94, in the absence of evi- dence to the contrary, it was assumed that the 32 cents were lawfully added as interest, or charges for advertising, sale, conveyance, etc.,^ and a tax apparently in excess of the legal limit may prove to be good by reason of special legislation.^ § 522. Part of the Taxes illegal. — A tax sale is void unless all the taxes under which the sale is made are valid.* Where divers taxes are assessed, some of which are legal, and the residue illegal, the sale cannot be upheld pro rata, but the entire sale falls to the ground. The rule is, that where a grant, an instrument, or act is void in part by the statute law, it is void for the whole. It has been quaintly said, and oftentimes repeated, that " the statute law is like a tyrant ; when he comes he makes all void ; but the common law is a nursing mother, making only void where the fault is, and preserving the rest." ^ But even the common-law rule which puts such a construction upon a transaction as to sustain the 1 Harris v. Curran, 32 Kan. 588 (1884). 2 Drennan v. Beierlein, 49 Mich. 272 (1882). » Crooks V. Whitford, 47 Mich. 283. ^ Hodgdon v. Burleigh, 4 Fed. Eep. 125 (1880) ; Elwell v. Shaw, 1 Glf. 339. See contra in Iowa, § 523. 5 Dwams's Stat. 739; Norton v. Simmes, Hobart, 12 c, 14; Collins v. Blantem, 2 Wils. 342, 351; Butler v. Wigge, 1 Saund. 66 a; Kerrison i-. Cole, 8 East, 231; Gaskell v. King, 11 id. 165; Wigg v. Shuttleworth, 13 id. 87; Howe ». Singe, 15 id. 440; Harris r. Stapleton, 7 Dumf. & E. T. R. 201 ; Mouys v. Leake, 8 id. 411 ; Greenwood v. Bishop of London, 5 Tauut. 727; Brown's Adm. v. Langford's Adm., 3 Bibb (Ky.), 500; Crawford V. MorreU, 8 Johns. (N. Y.) 253; Hyslop v. Clarke, 14 id. 458, 465; Van Alstine v. Wimple, 5 Cow. (N. T.) 162; Mackie v. Cairns, Id. 548; Carleton v. Whitcher, 5 N. H. 196; Hinds v. Chamberlin, 6 id. 225. VOL. I. — 30 465 § 522 THE SALE. legal and reject the illegal part, is only applicable to cases where, from the nature of the act, a severance of the good from the bad part can be made. A severance is impossible in the case of an illegal tax. The same principle was applied in Wallingford v. Fiske,^ where several parcels of land lying in one township were assessed together as one tract for the year 1813, and assessed separately for the years 1814, 1815, 1816, and 1817, and the whole were sold en masse for the five years' tax thus assessed upon them ; the sale was held illegal, upon the ground that the sale could not be regarded as legal as far as it was based upon the assessment of 1813 and void as to the other years. A sale for taxes as- sessed jointly on real and personal property is void.^ When any part of the taxes for which land is sold is illegal, the sale is void in toto ; as where the city taxes included in the judg- ment were illegal because of the want of an appropriation ordinance before their levy.^ Craig, J., dissenting on the ground that the failure to pass an appropriation ordinance was an unsubstantial matter, and ought not to render the judgment impeachable collaterally, even though it were by default. "If the city council had passed an appropriation ordinance the taxes would not have been diminished. How, then, was the taxpayer injured by a failure to discharge this duty ? ... In Buck v. People,* and in Chiniquy v. People,^ where local taxes were not levied and returned to the clerk ill time, it was held the error in the proceedings did not affect the substantial justice of the tax ; and it was cured by § 191 of the Revenue Law.^ A sale of land for the taxes of several years, some of which are illegal, is void.' Wliere land is as- sessed to one (A.) in possession under a parol agreement to purchase, and the law provides that the real estate of every 1 24 Me. 386. ^ Stark V. Shnpp, 112 Pa. St., 399 (1886). » Riverside Co. o. Howell, 113 Mass. 259 (1885). * 78 111. 560. B 78 lU. 572. « Ibid., pp. 266-268; see also Thatcher r. People, 79 111. 602; Fisher V. People, 84 id. 496; Raly v. Guinn, 76 Mo. 273. ' People V. Hagadom, 10 N. E. 891 (N. Y. 1887); 104 N. T. 516. 466 ILLEGAL TAXES. § 523 person shall be liable for the taxes assessed against such person, this does not make it proper to include A.'s poll tax in the sum for which the said land is sold, for it is not A.'s land ; and the land not being properly liable for part of the taxes for which it was sold, the sale is void.^ So, where part of the tax was illegal, being made up of levies in aid of the Rebellion, the sale was held void.^ And it was held in several Missis- sippi cases that if any part of the taxes were illegal the sale would be void ; * but since the act of March 5, 1878, such fact is no defence to a tax title, unless before sale the taxpayer paid or tendered to the proper officer the amount of legal taxes really due.* In other States the sale is void if any part of the tax is excessive,^ or in any other way invalid.^ A statutory provision that no sale for delinquent taxes shall be held invalid unless it be made to appear that all legal taxes wei'e paid or tendered, is unconstitutional so far as it sustains sales for taxes which are in part illegal. It is a presumption of law that the land demanded for a delinquent tax bears some proportion to the sum to be paid ; and that if the tax is illegal, some portion of the land sold to pay it is taken to satisfy an illegal demand.^ § 623. In Iowa ^ and Mississippi? the fact that part of the taxes for which the land was sold were illegal for want of a . sufficient levy does not render the sale void. If any part of the taxes were valid, the sale is good. If land is sold for the taxes of several years, the deed will be valid if the sale was proper as to the taxes for any one year. Under the Iowa 1 Buttrick v. Nashua Iron and Steel Co., 59 N. H. 393 (1879). 2 Dogan V. Griffin, 51 Miss. 782 (1875) ; Beard o. Green, Id. So6 (1876) ; Shattuck V. Daniels, 52 id. 834. » Gamble v. Witty, 55 Miss. 26 (1877) ; Peterson r. Kittridge, 3 So. Rep. 65 ; Capital State Bank v. Lewis, 64 Miss. 727. * Carter v. Hadley, 59 Miss. 130; Gibbs v. Dorch, 62 id. 671; Cor- burn V. Crittenden, Id. 125. 5 Hammontree r. Lott, 40 Mich. 195 (1879). « Wills f. Au.stin, 53 Cal. 152, 180 (1878); McCann v. Merriam, 11 Keb. 241 (1881). ' SUsbee v. Stockle, 44 Mich. 567 (1880). 8 Genther v. Fuller, 36 Iowa, 606 (1873) ; Rev. Stats. §§ 753, 762. » Corburn v. Crittenden, 62 Miss. 125. See § 522. 467 § 523 THE SALE. Code, § 870, which provides that the sale shall not be invalid " if the property was subject to taxation for any of the pur- poses for which any of the taxes for which the land was sold was levied, and the taxes were not paid before sale, and the property had not been redeemed from sale." ^ The statutes declare that partial illegality of the taxes shall not avoid the sale, provided the property was subject to taxation for any of the purposes for which any portion of the taxes for which the land was sold was levied ; that the taxes were not paid before sale, and that the property has not been redeemed. So, where land was sold for the taxes of several years, the fact that those for one of the years were illegal did not avoid the sale.^ The same is true in Michigan.^ In the latter case the court held the deeds valid because the taxes for one of the years were good, but remarked that the claim that all sales where a portion of the taxes were legal and not discharged would be good, was too broad, as the law was as follows : " No general or special tax authorized to be raised by the laws of this State, and which shall be assessed upon any property in any township or ward within the State, shall be held illegal or invalid for want of any matter of form in any matter or thing not affecting the merits of the case, and which shall not prejudice the rights of the party assessed ; nor shall any sale of property for non-payment of the taxes thereon be invalid unless it shall be made to appear that the legal taxes, costs, and charges were tendered to the proper officer within the time limited by law for the payment of all such taxes ; or, in case of the sale of real estate, unless it shall be made to appear that all legal taxes assessed on such real estate, together with all legal costs and charges thereon, were ten- dered to the officer authorized to receive such redemption money within the time limited by law ; and all taxes assessed on any property in this State shall be presumed to be legally as- 1 Parker v. Cochran, 64 Iowa, 759 (1884). 2 Rhodes v. Sexton, 33 Iowa, 540 (1871) ; see Parker v. Sexton, 29 id. 421; Eldridge v. Kuehl, 27 id. 160. 8 Hunt V. Chapin, 42 Mich. 24 (1879) ; Upton v. Kennedy, 36 id. 215 (1877). TAXES PARTLY ILLEGAL. § 524 sessed until the contrary is affirmatively shown ; and no sale of real estate for non-payment of the taxes thereon shall be ren- dered invalid by showing that any paper, certificate, return, or affidavit, required to be made and filed in any office, is not found in the office where the same ought to be filed or found ; but until the contrary is proven, the presumption shall be in all cases that such certificate, paper, return, or affidavit was made and filed in the proper office." Upon this law the court re- marked : " If we correctly apprehend the position of the plain- tiff's counsel, it is this ; that under this section, wherever a deed appears to have been given for taxes some portion of which were legal, and are not shown to have been paid or other- wise discharged, the title under the deed must be upheld. But if this be the view taken of this section, it is certainly too broad. . . . The sale, to be upheld, must be understood to be a sale made as required by law, and effectuated by such a deed as the law contemplates. Failure of any lawful return would avoid the deed. ... A careful consideration of this section seems to us to render very clear the purposes had in view by the legislature, and they may be stated as follows : (1) To provide that no error or irregularity in mere matter of form shall invalidate a tax proceeding ; (2) To do away -nith the legal rule which the decisions had previously established, that a sale for several taxes, one of which was illegal or had been paid, should be void ; and (3) To abolish the rule that when a record is not to be found in the proper office it must be accounted for before it can be assumed that it ever existed. For the first purpose the statute was not necessary, but the other two could not be accomplished without legislation." A tax sale and deed are not invalid because the records fail to show a levy for one of the years. If there was a proper levy for any of the years, the sale will be sustained.^ § 52-1. Tbe Land must be sold according to Legal Character. — A sale of land as unseated conveys no title, if in fact the land constitutes part of a seated tract on which the taxes have been paid.^ So if land is in fact unseated it cannot be » Madson w. Sexton, 37 Iowa, 562 (1873). 2 Kramer v. Goodlander, 98 Pa. St. 354 (1881). 469 § 525 THE SALE. assessed or sold as seated land.^ When the assessment list is returned by the assessor, and the process of assessment is completed by the County Court, it becomes in the nature of a judgment ; and the warrant attached to the tax book de- livered to the collector is a process in the nature of an execu- tion; and the condition of the lands — that is, as being lands of resident or non-tesident owners — becomes fixed ^ and so, if a resident owner of lands becomes a non-resident after the delivery of the tax book to the collector, the collector is bound to pursue the mode prescribed by the statute for the sale of lands of resident taxpayers.^ § 525. In what Parcels or Interests the Land must be sold. — The general rules are, (1) That distinct tracts must be sepa- rately assessed and sold,^ tracts contiguous to each other owned by the same person and used together for a single purpose not being deemed distinct ; * (2) That tracts or in- terests must be sold as assessed,^ though it has been held that where lots were assessed together for three years but after- ward separately, and were advertised and sold separately, the sale was good ; ® (3) That where separate parcels of the same owner are assessed separately, each tract is liable only for its own tax ; ' but any provisions of law tending to save some of tlie parcels to the owner must be carefully obeyed,* and when the sale of a part of the lots has realized a suflBcient amount to pay all the taxes due from the owner, it is perhaps improper, even in the absence of statutory provisions,® to go on and sell the other parcels belonging to the same owner ; i" (4) That the sale of an undivided interest for the taxes on the whole is void, but that an undivided interest may be sold for the taxes on itself. i^ A sale in execution of a judgment against two lots for back taxes cannot be collaterally attacked be- cause the lots were sold en masse : " It is well settled that a sale in mass by the sheriff under execution, of property which 1 Preswick v. McGrew, 107 Pa. St. 46 (1884). " Gossett V. Kent, 19 Ark. 602 ; see Garibaldi ». Jenkins, 27 id. 453, 456. » § 526. * § 527. « §§ 528-531. * § 528. ' §§ 532-534. » §g 535-539. 9 § 535. See § 548. " Contra, § 534. " § 540. 470 WHAT PARCELS. § 526 he ought to have sold in lots, is not ipso facto void. ... It does not follow that because a sale is so irregular that it might be set aside on appeal, it may therefore be collaterally attacked." ^ § 526. Distinct Tracts must he assessed and sold separately? — A sale of several distinct parcels or subdivisions of land, separately assessed or in fact distinct, en masse, and for a gross sum, is void ; ^ and a tax deed which shows the sale to have been thus made is void upon its face.* But a tax deed which states only the gross amount for which they were sold is not invalid for that reason, if it shows that they were sold sepa- rately? Each lot being a distinct subject of taxation, two or more cannot be assessed and sold in gross, because the owner would thereby be deprived of his right to redeem either separately. Either lot should be redeemable without paying the taxes pertaining to other lots.® The law usually provides that each tract shall be valued. This provision is for the benefit of the taxpayer, and must be complied with.'' An assessment against A. of lots owned by A. together with lots owned by others, as a single assessment, is void.^ Where a statute reqiured that lots should be assessed and sold by their numbers if they could be ascertained, an assessment and sale by a wrong number was void. The owner might be misled in looking over the tax lists. Not finding the ti-ue immber of his lot, he has a right to suppose it is not ad- vertised for taxes.^ Where distinct parcels, miles apart, and the property of different owners, were sold in groups for a 1 Howard .;. Stevenson, 11 Mo. App. 412 (1882). - Jenkins v. Supervisors, 15 Wis. 11 (1862). ^ Penn v. Clemans, 19 Iowa, 372; Ware v. Thompson, 29 id; 65. * Ware v. .Thompson, supra ; Boardman v. Bourne, 20 Iowa, 134; Ack- ley V. Sexton, 24 id. 320; Ferguson ». Heath, 21 id. 438; Williams v. Heath, 22 id. 519; Byam v. Cook, 21 id. 392; Harper u. Sexton, 22 id. 442 ; Walker ». Moore, 2 Dill. C. C. (U. S.) 256. 5 Orton V. Noonan, 25 Wis. 672. « Nason v. Ricker, 63 Me. 382 (1873). ' Howe V. People, 86 lU. 290 (1877); St. Mary's Church v. Tripp, 14 B. I. 307 (1883). « State I'. Williston, 20 Wis. 228 ; Willey e. Scoville's Lessee, 9 Ohio, 44. 9 Dike V. Lewis, 2 Barb. (N. Y.) 347 (1848). 471 § 527 THE SALE. single gross sum, the sale was held void, and the statute limitation has no application to such a case ; there never was any sale on which the statute could run.^ But any " con- tiguous quantity of land in the possession of, owned by, or recorded as the property of the same claimant, person, or company,"^ may be considered as constituting one parcel for taxation. § 527. Contiguous Tracts. — What are to be considered distinct parcels is determined by the nature and use of the property. If two or more lots are united for a common use, as where a building is partly on each, they become one lot, though the natural and even necessary description would be by the descriptions of the components. " When the use and nature of the lots require them to be regarded as one parcel, the law will so treat them." ^ It is not improper for the collector in good faith to sell as an entirety two town lots enclosed and occupied as a single homestead, a dwelling-house being on one and a barn on the other.* Lots used and occu- pied as one parcel may be sold together.^ In New York, all houses and lots contiguous to each other and belonging to the same " owner," i. e., assessed to the same party as owner or occupant, are to be advertised and sold in one parcel.* The New York law requiring contiguous lots belonging to the same owner to be sold in one parcel does not mean simply the technical owner, but the person assessed as owner or occupant ; and where contiguous lots are assessed to different occupants, the comptroller has a right to sell them separately, imless some proof of ownership is given before advertising, and demand made to advertise in one parcel.^ Lots lying together, taxed, held, and used as one property, may be sold 1 Faraham v. Jones, 32 Minn. 13 (1884); Hall v. Dodge, 18 Kan. 277; Hayden v. Foster, 13 Pick. (Mass.) 492 ; Sheehy v. Hinds, 27 Minn. 259; Moore v. Brown, 11 How. (U. S.) 414; Walker v. Moore, 2 Dill. (N. C) 256. 2 Gen. Sts. IMinn., 1878, oh. 11, § 4. 8 Weaver v. Grant, 89 Iowa, 297 (1874). * Springer v. United States, 102 U. S. 594 (1880). 5 Greer ». Wheeler, 41 Iowa, 85 (1875). « People ». Cady, 11 N. E. 810 (N. T. 1887); 105 N. Y. 299. ' People V. Cady, 105 K Y. 300 (1887). 472 CONTIGUOUS TRACTS. § 527 together.^ Where two tracts join only at a corner, so that they have no line in common, but only a point, they are not adjoining tracts in the sense of the law, so as to be treated as one tract; and one portion will not become seated by reason of improvements on the other.^ In Tennessee, contiguous lots or parcels belonging to the same owner may be assessed and sold as one tract.* In Iowa, it has been held that although a deed for two or more tracts or parcels in gross is void, and will defeat the title based thereon,* yet contiguous fractions of a government section are not distinct parcels. The section is the unit, and a deed for two government subdivisions as- sessed as one tract to a known owner, is good.^ " Two sub- divisions, ' forties,' are but moieties of another subdivision, an ' eighty,' which is itself a tract or parcel within the mean- ing of the law and the decisions of this court. And if two ' forties,' properly forming an ' eighty,' may be sold together as one tract, no reason can be given why four 'forties,' which together constitute a quarter section, may not in the same way be disposed of as one tract. The same course of argument requires us to concede that four quarters, constitut- ing a section, may be considered as one tract or parcel, and so sold." ® In this case the name of the owner was unknown, and there was a statute requiring that " when the name of the owner of any delinquent lands is unknown," the advertise- ment of sale " shall embrace the largest quantity practicable in each description." The court expressed regret that such should be the law, fearing that it opened the door of oppres- sion and fraud; but having sought every avenue of escape from the conclusion that the deed was good. Judge Beck said he found every way barred and secured by principle, prece- 1 State V. Landiss Tp. 13 A. Rep. 251 (N. J.). 2 Arthurs ». King, 95 Pa. St. 167 (1882). s Brien v. O'Shaughnesy, 3 Lea (Tenn.), 727 (1879); see Code, § 569. * Penn c. Clemans, 19 Iowa, 372 ; Boardman u. Bourne, 20 id. 134 ; Byam v. Cook, 21 id. 392 ; Furgnson v. Heath, Id. 438 ; Harper v. Sexton, 22 id. 442; Ackley r. Sexton, 24 id. 321; Ware v. Thompson, 29 id. 67. 6 Corbin e. DeWoIf, 25 Iowa, 125; Bulkley v. Callanan, 32 id. 461. 6 Martin v. Cole, 38 Iowa, 146, 147 (1874). 473 § 528 THE SALE. dent, and inexorable argument. The fact that a tract cor- rectly described is cut into lots by stone walls does not in- validate the sale.^ The land in this case was in fact " one ti'act under one ownership. ... It could hardly be contended that in the sale of a farm, for instance, every field and pasture into which it might be divided should be separately described, when the description of the whole farm by outside boundaries was given." § 528. The Sale must be according to the Parcels and Description contained in the List and the other Proceedings, or it cannot he sustained. — In Clarke v. Strickland ^ it was said that under a power to sell land a sale of all " the right, title, and interest " of the party is not the same thing.^ Where the assessment is not of an undivided interest in, but of an entire tract or parcel of land, the tax collector has no authority to sell an undivided interest therein for the non- payment of taxes.* In an action to declare invalid a tax sale on the ground that the premises were sold as one entire tract, while they were distinct lots, the sale was maintained on the ground that it followed the assessment, the assessment not having been questioned, the law having made a distinction between errors in the assessment and errors in the sale, and not allowing the validity of the assessment to be questioned after the sale was made.^ Especially must the sale conform to the list, as that constitutes the basis of all tlie subsequent proceedings. Under § 47 of 1 Rev. Stats. 406, which provides that " whenever a sum in gross is assessed upon any tract, etc., of land, any person claiming a divided or undivided part thereof may pay to the treasurer any part of the tax, interest, and charges thereon, proportionate to the number of acres claimed by him, on the certificate of the comptroller ; and the remaining tax, interest, and charges shall be a lien on the residue of the land only ; " and § 28, which provides that of 1 Howland v. Pettey, 10 A. 651 (R. I. 1887). 2 2 Curtis C. C. (U. S.) 439. ' See Einstein v. Gay, 45 Mo. 62. * Roberts v. Chan Tin Pen, 23 Cal. 259. 6 Moulton V. Doran, 10 Minp. 67. 474 ■WHAT PARCELS. § 529 the tract so subdivided, the persou wishing to pay the tax upon a divided part of it shall deliver to the comptroller a map of " the subdivision, if required by him," where for three years the assessments of taxes for certain roads on a tract of about 50,000 acres, composed of 493 lots, were made in gross, and the assessments for town and county charges for the same time were for the most part upon those parcels of the tract lying respectively in the several towns for which the assess- ments were made, though in some instances the lots were separately assessed, and in the years subsequently taxes were regularly assessed on many of the lots separately, and re- turns having been made in respect to all these taxes, the comptroller proceeded to advertise the lands for sale as 493 separate lots in a certain survey, and before the sale appor- tioned the taxes on each of the lots, and entered the same in his books by averaging the burden according to the quantity of land in each lot, and each lot was put up and sold for the aggregate amount with which it was thus made chargeable, — it was held that this was not such a variance as would avoid the sale.^ The course pursued must be consistent with itself • throughout the entire proceeding. Any variance in this re- spect will be fatal to the validity of the sale. The reason is obvious ; the authority of the ofl&cer to sell is derived from the existence and regularity of the anterior proceedings. If those proceedings are irregular, he possesses no authority at all ; if regular, the law confers upon him no power to change them. He acts at his peril in making a sale if they are irreg- ular ; and if regular, they constitute his only guide in adver- tising, selling, and conveying the land affected by them.^ § 529. In Pitkin v. Yaw the judgment was against eight town lots for an aggregate sum ; two only were sold, and the sale was held void. Willey v. Scoville was a case where nine ten-acre lots were assessed en masse, instead of severally ; the sale, on the contrary, was a several one, for the tax due upon each lot, and it was held void. In Andrews v. Senter ^ it 1 Fellows ». Denniston, 23 N. T. 420, 437. « Pitkin V. Taw, 13 111. 251, 253; Willey o. Scoville's Lessee, 9 Ohio, 43. 8 32 Me. 394. 475 § 530 THE SALE. appeared that two lots were listed and advertised for sale separately ; but tlie collector — as it appeared from his return of the sale — sold them together for the aggregate sum due upon both, and the sale was held void. The same principle was sustained in Morton v. Harris.^ §'630. And in Wallingford v. Fiske,^ which was a writ of entry, wherein the defendant claimed under a tax .sale, it appeared that all of the several parcels of land lying in town- ship number three were listed and assessed in the names of the several owners. The warrant stated the gross sum due upon the whole township, the return of sale showed a sale of the entire township to three persons for the sum of $68.53, and the execution and delivery of the deed accordingly. The sale was held void. By the court : " The legislature were careful that, so far as it could be done, each parcel of land should be exclusively holden for the tax with which it was charged ; that no unnecessary inconvenience should arise from advertising and selling in gross different parcels of an estate, in which different interests might exist ; that on a redemption of the title conveyed upon such sale, each individual might obtain his own land by the payment of the tax thereon, and the expense arising from the sale, thereby avoiding the dis- putes which would grow out of a claim for contribution, where one tract was burdened with the taxes upon itself and others also.3 Each right, number of lot, or division must be adver- tised and separately sold at public auction." It is also held that the fact that the several lots, tracts, or parcels belong and are assessed to the same person, does not dispense with the law, or excuse a deviation from it.* The law contem- plates a sale in legal subdivisions, and will not tolerate any act which tends to create confusion in the land systems of the respective States and of the United States, and thus de- stroy the legal identity of a parcel of land known to the law only by specific metes and bounds. 1 9 Watts (Pa.), 319; see also Woodburn v. Wireman, 27 Pa. St. 18; Keene v. Barnes, 29 Mo. 377. 2 24 Me. 886. » 13 Pick. (Mass.) 492. * Shimmin v. Inman, 26 Me. 228. 476 WHAT PARCELS. § 532 § 531. The tract sold must be the same tract that was as- sessed, or some definite portion or fraction thereof.^ Where several parcels are assessed in gross they must be so sold. There is no authority to cut up the tax and arbitrarily appor- tion it.2 A sale of part of a farm for the taxes on the whole is illegal. The only legal course is to sell the whole, or, when possible, an undivided fraction of the whole.* Where an 80-acre tract is assessed in bulk for $25.20, and the west half is sold for $9.53, the sale is voidable.* It cannot be known how much is due on one half and how much on the other. When land is assessed as an entirety, sale of part of the land for a part of the tax is improper and voidable.^ The objection that three lots were sold together for one single tax is without force, in view of the fact that they may have been, and presumably were, assessed for a single sum as one tract.® § 532. Where Several Parcels of Land helonging to the same Person are separately assessed, each Parcel is liable for its own Specific Tax, and no more.'' The lien created by the statute is upon each tract for its own tax, and it cannot therefore be sold to satisfy the tax due upon the others.^ Thus, in Hayden V. Foster,^ where twenty-two distinct parcels of land, owned by one individual, and situate in the same town, were valued and taxed separately, but one of them was sold to pay the tax upon all of tliem, the sale was held void. The court remarked : " So numerous and various are the coUat- etal, derivative, and dependent interests in estates, which are liable to taxation to one common owner having a general 1 McQuesten v. Swope, 12 Kan. 32 (1873). 2 Wyman v. Baer, 46 Mich. 420 (1881). s Allen V. Morse, 72 Me. 505 (1881). * Shaw V. Kirkwood, 24 Kan. 477 (1880); see Willey v. Scoville's Lessee, 9 Ohio, 44 (1839). 6 Heil V. Redden, 16 P. Rep. 743 (Kan.). * Corburn v. Crittenden, 62 Miss. 135 (1884); § 522, Code 1880. ' And the purchaser is entitled to a deed which so states the sale. Stats, ex rel. Donahoe,,». Richardson, 21 Mo. 420. ' But even this is allowed by statute in some States. See Powers v. Barr, 24 Barb. (N. T.) 142. » 13 Pick. (Mass.) 492. 477 § 534 THE SALE. property, that it would be attended with the utmost incon- venience, and produce a great confusion of rights, if the whole tax could be charged upon one estate." § 533. In Baskins v. Winston ^ several tracts of land, con- taining in fill 1,874 acres, were assessed and valued sepa- rately, as the property of Isaac Lane, a part of which belonged to him, and the rest belonged to Winston, the defendant, but were illegally assessed in the name of Lane. The aggregate tax was 833.95, for which the lands were sold. The sale was held void. By the court : " We are clearly of opinion that the tax collector could not mate a valid sale of land belonging to Winston, although assessed to Lane, for the purpose of paying taxes due by and assessed to Lane, for other and different tracts belonging to him. So to hold would not only subject a man's property to the payment of taxes not due upon it, but would appropriate the property of one person to pay the debts and charges which the State might have against another. We cannot suppose the legisla- ture ever intended such an act of injustice, and must therefore declare the sale made in this case invalid." § 534. Where the law charges each parcel with a distinct tax, a sale of two lots is not illegal, though the receipts from either are more than enough to satisfy the whole amount due on both.2 In case of a tax sale under a judgment against several lots, the taxes on each -lot being a lien on it, the collector is not bound to direct the sheriff to stop the sale as soon as he has enough money to pay all the taxes on the whole series of lots belonging to the same owner ; and though the first three lots sold for enough to pay all taxes ou the entire tract, and the defendants were absent and no objection was made, and the sheriff sold every lot, the sales were held good.^ Thompson, J., dissented, holding that even if such conduct were authorized by law, it could not be sustained, for the law would be unconstitutional. As soon as the sheriff had even personalty of the defendants in his hands to pay » 24 Miss. 431. " Lawton v. United States, 21 Ct. of a. 44. « State V. Sargent, 12 Mo. App. 236^237 (1882). 478 WHAT PARCELS. § 535 their taxes, the right to sell any more of their land was dead.^ In Missouri, a judgment which is not against each tract for its own tax is not for that reason void ; and the purchaser is not affected by the error .^ § 535. Statutory Provisions intended to save the Sacrifice of Property. — The Act of Congress of May 4, 1812, for the government of Washington City, provided " that imimproved lots in the city of Washington on which two years' taxes remain due and unpaid, or so much thereof as may be neces- sary to pay such taxes, may be sold, at public sale, for such taxes due thereon." In case of Washington v. Pratt -^ this question was made upon the statute : " Whether, where sev- eral lots belonged and were assessed to one person, and two years' taxes were due on every one of them, it would be lawful to sell one of the lots to pay the taxes due upon all, or each lot would be liable only to be sold to pay the tax due on itself." To which Judge Johnson responded : " This question, thus stated, does not admit of a general answer. That each lot stands incumbered with no more than its own taxes, and the lien upon each is several and distinct, results not less from the provisions of the eighth section, which gives the right of redeeming severally, than from the con- sideration that in case of a partial sale by the proprietor of many lots the purchaser from him would not, by the act of transfer, hold his purchase disincumbered of its ow4i par- ticular taxes, either absolutely or upon the contingency of the remaining lots of his vendor being adequate to the satis- faction of the taxes due on the whole. Nor would the pur- chaser of a single lot hold his purchase incumbered with the taxes due on the whole mass of lots held by the vendor ; each would have the right to redeem upon paying the taxes as- sessed on his own particular purchase, and would hold his purchase subject to such taxes. The provisions of the act are clearly intended to raise the tax of each lot from itself ; 1 State V. Salient, 12 Mo. App. 238. The judgment of the majority was afterwards set aside. 2 Jones H. Driskell, 7 S. W. Ill (Mo.); Acts Mo. 1877, p. 386, § 6. « 8 Wheat. (U. S.) 681, 6S6. 479 § 536 THE SALE. the words are ' so much ' thereof, not ' so many,' as they must have been after speaking of ' unimproved lots,' had it been intended to authorize the sale of some for the taxes of others, and not the sale of each one, or ' so much' as is necessary of each one, for the payment of its own taxes. Applying the enacting words to the case of an owner of a single lot, the effect of the word 'much' can only be to authorize a sale of part of a lot whenever circumstances will admit of such a sale, and the sum due will not require more. But if taxes be due by one and the same individual, in small sums, upon many lots, and one lot being set up for sale produces a sum adequate to the payment of all, the whole arrears become paid off, and no excuse can then exist for making further sales." The evident conclusion to which this opinion tends is, (1) That the lien upon each lot for the taxes is several and distinct, and a purchaser of one or more of the lots, less than the whole number, subsequent to the date of the assess- ment, from the owner in whose name they were all assessed, holds his lot or lots unincumbered with the taxes due on the other lots, the title to which remains in his vendor; (2) And where all of the lots thus assessed to one proprietor remain in his hands until the sale takes place, if the sale of one or more of the lots, and less than the whole number, pro- duces enough money to satisfy the tax due upon the whole, the collector will not be justified in proceeding to sell the residue. § 536. Another statute was enacted, relating to the same city, on May 15, 1820, providing "that improved or unim- proved property, or so much thereof not less than one lot, as may be necessary to pay the taxes, etc., may be sold, etc. ;" and still another act passed May 26, 1824, provided " that it shall be lawful for the said corporation, where there shall be a number of lots assessed to the same person or persons, to sell one or more of such lots for the taxes and expenses due on the whole ; and also to provide for the sale of any part of a lot, for the taxes and expenses due on said lot, or other lots assessed to the same person, as may appear expedient, according to such rules and regulations as the said corpora- tion may prescribe." 480 WHAT PABCELS. § 537 § 637. In Mason v. Pearson,^ which was an action of eject- ment, the defendant claimed under a tax sale purporting to have been made in pursuance of the foregoing acts of Congress. The facts were that twenty lots had been separately listed in the name of the " Washington Tontine Co." The whole were appraised at $1,788 ;Hhe tax assessed upon them was $64.94; they were all sold separately ; the entire proceeds of the sale were $705; and the lots first and secondly offered brought $85, which was more than sufficient to pay the taxes an3 expenses of the whole list. The court held the sale void, upon the ground that the first two lots offered having been sold for more than enough to discharge the tax due upon all, a further sale was not only unnecessary, but a great sacrifice of the property of the company, and that the law according to the intimation in Washington v. Pratt, and the language of the act of 1824, not only permitted the collector to stop the sale when the bids covered the taxes and expenses due upon all of the lots, but that it was his imperative duty to do so. It was contended by the counsel in support of the tax title, "that the law allowed a discretion in the city to sell each lot for the tax on each ; and that in the exercise of this discretion the sale of all can be vindicated as legal ; that the intention was not to give a power which the city must, but which they might exercise; and that the owners might have saved their property by redeeming from the sale." To which the court reply : " 1. That it was the design of Congress to prevent sacrifice and speculation. 2. That what a public corporation or officer is empowered to do for others, and it is beneficial to them to have done, the law holds ought to be done ; the word ' may ' in such cases is imperative, and not permissive merely. 3. That the argument that the owners might have preserved their rights by redemption is entitled to but little force, when the same oversight, accident, or mis- fortune which prevented the seasonable payment of the tax, would probably defeat a redemption ; and when the argument, if sound, would apply to every other defect in a tax sale ; if such views were to prevail, the only remedy of the owner 1 9 How. (U. S.) 248; see Thompson v. Carroll's Lessee, 22 id. 422. vol.. I.— 31 481 § 538 THE SALE. against an illegal sale of his property would be to redeem from it. But instead of such a loose constructiye leniency towards a purchaser under a special law, it is well settled that where a tax title is to be made out by a party under such a law, as by the defendant in this case, it must be done in all material particulars, fully and clearly. In the language of some of the cases it must be done ' strictly,' ' exactly,' 'with great strictness.' The purchaser setting up a new title in "hostility to the former owner is not to be favored, and should have looked into it with care before buying, and not expect to disturb or defeat old rights of freehold, without showing a rigid compliance with all the material requisitions of the law under which the sale was made." Such was the reason- ing of the lamented Judge Woodbury in favor of that rule of strictness which has been almost universally adopted by the courts of this country in the investigation of tax titles ; and it furnishes a complete refutation of the only arguments ever advanced by any court in favor of their validity, when the pro- ceedings were manifestly irregular; namely, that the " govern- ment must collect her revenue," — "let the owner pay his taxes promptly, or redeem from the sale." § 538. No one denies that the necessities of the State de- mand a periodical and adequate supply of revenue ; that she , possesses the power to assess it ; that it is the duty of the citizen to pay it, and that promptly ; that if he fails in the performance of this duty, the State has a right to resort to adequate coercive remedies ; that the sale and conveyance of the land of the delinquent to one who is willing to advance the tax is a legitimate exercise of sovereign power ; that such a sale and conveyance will, if regularly made, vest an absolute title in the grantee, as complete and perfect in all respects as a grant by the Federal Government of a part of the public domain. But the great difficulty is that the State, in the ex- ercise of her sovereign power of taxation, has always seen proper to prescribe the mode and manner of selling the lands of delinquents, and in such language as to make a close ad- herence to the terms of the power conditions precedent to the validity of the sale; at least the courts — applying to 482 WHAT PARCELS. § 539 such proceedings the well-known and inraxiably recognized principles of the common law which control the execution of all special authorities — have so held ; and the ignorance or negligence of the oflScers intrusted with the execution of the power has thus far defeated the manifest design of the law. The remedy is obvious. Let the revenue laws be plain and simple ; dispense with all useless and unmeaning forms and technicalities which incumber the present system. Give to the officers who execute the power, information to enable them to perform their duties ; and when the law is once per- fected, and the officers have become familiar with the routine of their duties under it, let it stand upon the statute book, and abandon the system of annual changes in the details of the law. When these suggestions are acted upon, or some more feasible plan adopted, then will a tax title cease to be a by-word among land-owners and land-dealers. Then will courts no longer remark, in opening the discussion of a tax cause, " this title is of that kind almost proverbially known as a collector's title, as expressing a case of doubt and diffi- culty." ^ Then no court will declare tax titles prima facie void, and become " astute " in searching for defects in them. Then liberal principles will prevail in testing their validity, and the ordinary presumptions made to sustain them. And then, and not till then, will land-owners look to it at their peril that their taxes are promptly paid, or (if by oversight they suffer the day of sale to pass by) be vigilant in effecting a redemption. As things now stand, a tax title is no title at all. Out of the numerous sales made under the acts of Con- gress between the years 1800 and 1818, not a single one has been sustained ; and not exceeding ten, under the laws of the several States, out of at least twelve hundred which have found their way to the Superior Courts of the country. Ex- perience seems to have thrown but little light upon the sub- ject, and the legislature have been unable to keep pace with the ingenuity of the bench and bar in discovering defects in tax sales. , § 539. In Illinois, where several tracts are levied upon 1 Colmau V. Anderson, 10 liass. 105, 111. 483 § 540 THE SALE. together, it is the duty of the sheriff to offer each tract sepa- rately. If no one bids, he should offer two tracts, and so on, offering the whole en masse only if compelled to by lack of previous bids. So if there are three tracts and the sheriff offers each one separately, and receiving no bids sells the three, the sale is void, for he should have tried offering two tracts before offering three.^ Under a statute providing that the collector shall offer each tract in the advertised list sepa- rately, where the collector, instead of offering for sale sepa- rately each tract, presented the list to the persons present, and offered to sell if they would buy, and they all replied that they would not buy any of them, it is but fair to presume that no injury resulted to the owners of the land by the failure of the collector to comply with the letter of the statute. But the testimony of the collector, if competent for such a pur- pose, is not sufficient to defeat a tax title by impeaching the truth of his own official return, attested by the clerk of the county as to the mode of offering the land for sale.* § 540. Sale of an undivided interest for taxes on the whole is invalid.* But the sale of an undivided haK of the land upon which the taxes remained unpaid, the taxes on the other undivided half having been paid by the owner, is proper. This is very different from sale of an undivided interest in a tract for the taxes due on the whole.* Where a tract is as- sessed against tenants in common, and one of them pays the tax on his undivided share, the interest of the other may be sold to satisfy the residue of the assessment.^ ■ Where a part- owner of an unincorporated place which was undivided had paid a part of the tax without designating the number of acres claimed by him, a sale of the residue on which no payment 1 Douthett V. Kettle, 104 DL 360 (1882); Phelps v. Conover, 25 id. 312; Morris v. Robey, 73 id. 462. ' Biscoe V. Coulter, 18 Ark. 423. » See § 528. Cragin ». Henry, 40 Iowa, 159, 160 (1874); Sanford v. Sanford, 135 Mass. 316 (1883); WaU v. WaU, 124 id. 65; Forster ». Fors- ter, 129 id. 559. * Peiroe ». Weare, 41 Iowa, 382 (1875). 6 KonkendoriE ». Taylor'8 Lessee, 4 Pet. (U. S.) 349, 362; Payne v. Danley, 18 Ark. 441. 484 QUANTITT OF LAND. § 641 had been made for the unpaid balance of tiie tax and costs was held aufficientlj certain.^ § 541. The Qaaiitit7 of Land that may be sold by the Officer de}>ends npon the Phraseology of each Particular Statute.^ — The statute of New Hampshire required that so much of the de- linquent's estate should be sold " as will be suflBcient to pay the taxes and incidental charges " upon it. In Ainsworth v. Dean ' the whole tract was offered and struck off to the first bidder. The court held the sale void, saying : " No regard appears to have been paid to this provision in the sale, and no reason is given why the law was not complied with, if indeed any reason could be considered as suflBcient. The whole lot was advertised and sold for the taxes and costs." A similar decision was made under a statute of Maine.* The California statute of 1861 requires that the sheriff shall only sell the smallest quantity of the real estate that any purchaser will take and pay the judgment and costs.^ This provision was intended for the protection of the taxpayer, and is mandatory, and not directory merely; and the recitals in the sherifPs deed as to the manner in which he conducted such sale are evidence against the grantee and parties claiming under him. Accordingly, a deed reciting a sale to the highest bidder, when he was authorized by the statute orUi/ to sell the small- est quantity of the property which any one would take and pay the judgment and costs, was held void on its face.^ In Iowa, land may be sold for taxes in tracts greater than forty acres, when so assessed to Jmoton owners ; and such sale will not for that reason be declared invalid, when it does not ap- pear that the taxes due npon the tract could have been satis- fied by the sale of a part thereof; the statutory provision requiring that in cases where the owners are unknown the 1 Wells V. Bnrbank, 17 N. H. 393. » §§ 541-549. s 21 N. H. 400; Lyford v. Dunn, 32 id. 81, 86, 87 ; Jaqoith v. Putney, 48 id. 141; Davis v. Handy, 37 id. 65, 69. * Loomis V. Fingree, 43 Me. 299 ; and see Crowell o. Goodwin, 3 Allen (Mass.), 535; Lovejoy i;. Lunt, 48 Me. 377; French v. Patterson, 61 id. 203, 210. 6 Gillis V. Barnett, 38 Cal. 393. • French v. Edwards, 13 Wal. (U. S.) 506. 485 ■ § 542 THE SALE. assessment thereof and entry of the same in the tax book shall not exceed the sixteenth part of a section or smallest subdivision of land according to government survey is, upon the maxim expressio uniuB exclusio alterius, authority, where the owners are known, for its assessment in larger tracts.' And when nothing appears to the contrary from the face of the deed, it will be presumed that the owners are known, and that the sale in other respects was authorized.^ § 542. In Ives v. Lynn,^ where it did not appear afiBrma- tively in the deed, or return of sale, that no more land was sold than was necessary to raise the amount of taxes due upon the entire tract offered, the court held that it was a pre- sumption of law that the collector performed his duty, and conducted the auction fairly and properly ; and in the absence of proof rebutting this presumption the sale was sustained as far as this point was concerned.* The revised statutes of Massachusetts provided^ that the collector shall sell " so much of the real estate as shall be sufficient " to discharge the tax and charges ; but if in the opinion of the collector " any parcel of real estate cannot be conveniently divided, and a part thereof set off without injury to the residue, he may sell the whole of the land itseK," etc. Under these provisions it was recently held that the collector could adopt only one of two courses : either sell just enough to pay the tax and charges, or, if in his opinion not capable of division, sell the entire tract taxed; he could not adopt a middle course and sell more than sufficient to pay the tax and charges, but less, than the whole lot taxed, unless it also appeared that the lot 1 Eldridge v. Kuehl, 27 Iowa, 160; Corbin v. De Wolf, 25 id. 124; Bulkley o. Callanan, 32 id. 461 ; Stewart v. Corbin, 25 id. 144 ; see also Wallace v. Berger, Id. 456; Johnson v. Chase, 30 id. 308; Waie v. Thompson, supra. * Bulkley v. Callanan, supra. * 7 Conn. 505. * See also Tweed v. Metcalf, 4 Mich. 579, 601; Biscoe v. Coulter, 18 Ark. 423. So it cannot be objected to the validity of a tax deed that it does not show that a less portion than the whole lot it purports to convey was first offered, when it is shown by the testimony of the treasurer that it was in fact so offered. Gray v. Coan, 30 Iowa, 536. 6 Ch. 8, §§ 28, 29. 486 QUANTITY OP LAND. . § 544 actually sold could not be again divided without injury to the residue.^ § 543. The statwte of Georgia provided that the collector should sell the land of the defaulter, or " so much thereof as will pay the amount of the taxes due with costs." In Stead's Executors v. Course ^ it appeared that a sale was made under this statute of an entire tract of 460 acres, but it did not appear how much taxes were due upon the land. In de- ciding against the title upon this state of facts. Chief Justice Marshall said : " The sale ought to have been of so much of the land as would satisfy the tax in arrear. ... If the whole tracfof land was sold when a small part of it would have been suflBcient for the taxes, which at present appears to be the case, the collector unquestionably exceeded his authority." And in Doane w. Chittenden ^ it was held that a sale of two tenements on one lot, owned and occupied by different per- sons, to satisfy a tax on the lot less than one tenth of the value of one tenement, without separately offering the parcels until a sufficient sum was raised to pay the amount, was an abuse of the discretion of the levying officer, and was void. § 544. And where the statute was silent as to the quantity which might be offered and sold to pay the taxes, the Su- preme Court of Indiana held that upon general principles a sale of a greater quantity than was necessary to satisfy the tax, where the land was susceptible of a division or a sale in smaller parcels, was illegal and void.* The court, after quoting the case of Stead v. Course, which arose upon the construction of the Greorgia statute, and approving of the decision of Judge Marshall, say : " The rule must be the same without any posi- 1 Crowell V. Goodvdn, 3 Allen (Mass.), 535. But this mle was changed by the Gen. Stats, ch. 12, § 33, it then being left entiiely to the collec- tor's option to sell the whole or any part of the estate. " 4 Cranch (U. S.), 403. » 25 Ga. 103. « O'Brien v. Coulter, 2 Blackf. (Ind.) 421. An act of the Congress of the United States which leqoired that the whole land should be sold in all cases, without regard to the fact that it might be divided without injury, and the tax paid by the sale of part, was held uncon- stitutional. Martin v. Snowden, 18 Gratt (Va.) 100; Downey v. Nutt, 19 id. 59. 487 § 546 THE SALE. tive law for the purpose. It rests upon principles of obvious policy and universal justice." This is clearly the correct rule of law. But where a part of the tract was offered without re- ceiving a bid thereon, a sale of the entire tract in one body was held legal.^ It was held in Woddye v. Coles,^ that where a sheriff, under an execution for five shillings, seized and sold five oxen, each of the value of five pounds, he became a tres- passer ab initio. And it has been repeatedly decided iu this country that, an excessive levy and sale of personal property subjects the oflBcer to an action.* So it has been adjudged that where a sheriff sells more land than is necessary to sat- isfy the execution, the land being susceptible of advantageous division, the sale is illegal.* If this principle is applicable to sales made by an officer under the authority of a judgment and execution, there seems to be still stronger reason for ex- tending it to sales made by officers under a special authority derived from a statute, without the intervention of judicial proceedings, and where the greatest possible degree of strict- ness has always been regarded as " wholesome discipline." * § 545. The North Carolina statute provided " that if no person shall bid a smaller quantity than the whole, then the whole land so set up shall be considered as a bid of the gov- ernor, and the sheriff shall strike off the same to him accord- ingly, and execute a good and sufficient deed of conveyance to him and his successors in office." In the case of Doe d. Kegister v. Bryan ® the plaintiff claimed a whole tract, under a tax sale made in violation of this law, and his title was held to be absolutely void, not only against the governor, but also as against the former owner. § 546. The statute of Mississippi declared that the collector " shall not sell in any one lot more than the eighth of a sec- 1 Slater v. Maxwell, 6 Wal. (U. S.) 268. « Noy, 59. » Hewson o. Deygert, 8 Johns. (N. Y.) 333 ; Beekman v. Frost, 18 id. 544, 562 ; 1 id. 502. * Isaacs V. Gearheart, 12 B. Mon. (Ky.) 231; Tieman v. Wilson, 6 Johns. Ch. (N. Y.) 411. « See Polk v. Rose, 25 Md. 153, 161. • 2 Hawks (N. C), 17. 488 QUANTITT OP LAND. § 546 tion ; bnt if one lot will not sell for the amoimt of the taxes due, and the costs and charges that have accrued, as many lots of that quantity may be sold as will be sufficient to pay the amount due," etc. In Doe d. Hodge v. Wilson ^ the facts were that the land sold was a quarter section, containing one hundred and sixty acres, and the collector in offering it for sale asked : " Will any one pay the taxes, costs, and charges for one eighth, or eighty acres?" No one bidding, he then put up the whole quarter and sold it. The Circuit Court sustained the sale, but its judgment was reversed in the High Court of Appeals. The judges, though concurring in the reversal, did not i^ree upon all the points arising in the case. On this point they aU screed ; namely, " that the collector should have designated the particular eighth which was first offered. He cannot sell an undivided interest and make the purchaser a tenant in common with the original owner ; nor can he by so selling give the purchaser choice of the .tract or parcel pur- chased. He is directed to sell in separate lots of an eighth of a section, and not an undivided interest ; nor can he by the sale confer upon the purchaser the right to elect which specific half of the tract he will take." ^ Chief Justice Sharkey also held that "the collector must sell in lots of an eighth of a section, and in no greater quantities. If one will not sell another must be offered, and so on until the whole has been offered in sepa- rate lots." The opinion of Judge Thacher upon this point was, that " if the first eighth will not sell, it is to be offered with the next eighth, and so on imtil the amount of the tax is bid." And the conclusion at which Judge Clayton arrived on this question was, that " when the first part is sufficiently desig- nated and is not sold, then the part so offered and refused may be added to the next, and so on imtil a sale is effected, or the sheriff may offer each subdivision separately." The reasoning of the Chief upon this debatable point " was de- signed to prevent the sale of more land than was actually 1 12 Smedes & M. (Miss.) 498. * To allow a person to select from the tax list a portion of the delin- qnent lands, and purchase the whole for the tax due without competition, is fraudulent. Brown v. Hc^l^ 30 EL 119. 489 § 547 THE SALE. necessary ; or in other words to collect the taxes by the sale of as little as possible, observing the legal subdivisions of sec- tions. It is founded on the most obvious principle. Grovern- ment is established for the benefit of the people, and it should not be permitted so to act by its officers as to produce injustice or oppression. It must protect and not sacrifice their rights ; and all its exactions must be made with the least possible encroachment on individual rights. But for this law the col- lector would have been left free to exercise his discretion ; this law prescribes a limit." § 547. In Boisgerard v. Johnson,^ where the sheriff struck off the entire lot without either offering each eighth separately, or offering one eighth alone, and upon failure to get a bid for that adding another to it and offering them together, and upon failure to get a bid for that adding another and offering them together, and so on till the whole were offered, the principle established in Hodge v. Wilson was reaffirmed, and the sale held invalid. Where the collector in selling a one hundred acre tract offered first forty acres, then another forty, then the remaining twenty, and receiving no bids offered the whole, which he sold, the sale was held void.^ This case, however, is very unsatisfactory ; for the legislature, in § 525, Code 1880, invalidates any such defence to a tax title, and it is a matter which the legislature certainly may control. " Only the small- est subdivision of the tract belonging to an owner that will suffice to pay the arrearage of taxes and costs shall be sold." ' The tax collector may sell the land one eighth at a time, at successive biddings, until he has sold enough to pay the taxes due, and then may make one deed of all if to one purchaser.* So, where the statute forbade the sheriff from putting up at one time more than one tenth of the land on which the tax was due, allowing him to proceed by tenths until the tax should be raised or all the land sold, and the ^ 23 Miss. 122. See further upon this question, Baskins v. Winston, 24 Miss. 431; Yasser v. George, 47 id. 713; Wentworth v. Strong, 1 Tjler (Vt.), 191. " Griffin v. Ellis, 63 Miss. 348. » Yasser v. George, 47 Miss. 713. * Kay o. Murdock, 36 Miss. 692. 490 QUANTITT OP LAND. § 549 sheriff sold the tract in one parcel, the sale was held void.^ Lands must be offered in tracts of forty acres, that being the smallest legal subdivision under the United States laws and surveys; and the court will take judicial notice of the sub- divisions of land thus established.^ The Mississippi Code of 1880, § 521, provides that in selling a large tract the collector " shall fii-st offer forty acres, and if the first parcel so offered does not produce the amount due, he shall add a similar sub- division, and so on until the requisite amount is produced." A sale was made in which the officer offered forty acres, then another forty, and so on, not addi-ng, but offering the succes- sive parcels separately, and finally the whole, which was taken. The court held the sale invalid, notwithstanding § 525 of the same Code, which in effect declares that no defence against a tax title shall avail unless the taxes were paid before sale.^ § 548. In Maryland,it is the duty of the collector to sell no more than is reasonably sufficient to pay the taxes and charges, where a division is practicable without injury. This rule is held to rest on obArious principles of policy and justice.* Where the statute requires that real estate other than town lots shall be sold in subdivisions of not more than forty acres, sales of larger tracts are void.* The object of the law is to collect the taxes by sale of as small a quantity of land as possible. § 549. Where the law provides that the " smallest quan- tity that any one will take and pay the judgment " is to be sold, a sale of the whole tract to the highest bidder is void.® In order to justify sale of the whole tract, it must distinctly appear of record that sale of the whole was necessary to pay the tax, interest, and charges.^ But the portion which may » Love V. Wilbonm, 5 Ired. (N. C.) 347. » Carnthers v. McLaran, 56 Miss. 372 (1879). » Griffin v. Ellis, 63 Miss. 348 (1885). * MaigiaS r. Cunningham's Ueiis, 57 Md. 585 (1S81) ; Dyer v. Bos- well, 39 id. 465 (1873). « Clarke r. Rowan, 53 Ala. 401 (1875). ' Mora o. Nonez, 7 Sawyer, 455 (Cal. 1882); Hewell v. Lane, 53 Cal. 213 (1878). ' Whitmore v. Learned, 70 Me. 279 (1879) ; Lovejoy v. Lunt, 48 id. 378; French v. Patterson, 61 id. 209; Straw v. Poor, 74 id. 53 (1882); Jaqoith v. Patney, 48 N. H. 138. 491 § 551 THE SAI4E. be sold is not a divided portion. " To sell a separate and distinct portion of a farm to pay the taxes assessed on the whole of it would be as illegal as to sell the whole when it is only necessary to sell a part. The only legal course is to sell an undivided fraction of the whole: one fourth, one third, etc."^ Where a collector states in the deed that he sold sufficient of the land to pay the taxes and charges, the presumption is that he did his duty and sold no more than was necessary .2 The neglect of the officer to sell the land by the smallest legal subdivisions does not render the sale void. The sale may on motion be set aside on this account, but the owner cannot wait till the purchaser brings ejectment and then set it up as a defence in this collateral proceeding.^ § 550. If a porUqn of a tract is sold it must be sufficiently designated by metes and bounds, statutory rule, or otherwise. Where there is a sale of a less portion than the whole tract, if the owner fail to designate the portion he wishes sold, the tax collector must designate a portion before the sale, and with sufficient particularity to distinguish it.* A bid of eighty-four feet front, running back of equal width to the full depth of the lot, or of one-half ^, or of so many" acres, would be good, for it could be run off as prescribed by the statute of 1873, ch. 118, § 65. But a bid of eighty-four feet is too in- definite.* Sometimes the statutes declare that the portion sold is to be laid off in a particular manner in a square in the N. E. corner, for example ; then it is sufficient to bid for a certain number of acres, and the law fixes its position. § 551. The question has been raised in several cases, but not decided,® whether, where the law is silent as to the mode 1 Allen V. Morse, 72 Me. 535 (1881). 2 Ives V. Lynn, 7 Conn. 504 (1829). » Brown v. Walker, 11 Mo. App. 236 (1881); Wellshear ». Kelley, 69 Mo. 343, 355. * Roberts v. Chan Tin Pen, 23 Cal. 259. 6 Wands v. Brien, 13 Lea (Tenn.), 735 (1884). ' But it has recently been held that if the deed describes the land merely as so many acres of a certain lot, which contains much more land, it passes an undivided interest in such lot, equal to the proportion which the number of acres sold bears to the whole number of acres in such lot. Sheafe v. Wait, 30 Vt. 735; see Gibbs w. Swift, 12 Cush. (Mass.) 393. 492 METES AND BOUNDS. § 552 of locating the land sold, it is competent for the officer to sell and convey a certain number of acres out of a tract, without designation by metes and bounds, and thus make the pur- chaser at the tax sale a tenant in common with the owner of the residue; and also, whether a sale of the undivided moiety can be sustained.^ There would seem to be no diffi- culty in answering these questions. The only instance where a tenancy in common can be created by mere operation of law is where a dissolution of an estate in joint-tenancy or copar- cenary takes place ; and the only other mode of creating one is by an express limitation in a deed to two or more persons.^ It cannot be created by implication, where the statute itself fails to point out the modus operandi whereby it may be effected, not only because it is inconsistent with the general principles of law relative to the origin of such rights, but be- cause, as we have already seen, the officer who executes the power of selling land for taxes can exercise no implied power whatever. He acts in hostility to the owner of the estate, and not as his agent, and he must pursue his authority literally. § 552. There is, however, no statute regulating this class of sales which is so ambiguous as to present such a question. The authority usually conferred is to sell the land upon which the tax is due, or so much thereof as may be necessary to satisfy the charge ; or to sell a certain interest less than a freehold out of the estate ; or to sell to one who will bid the least quantity to be located on a particular side of the tract or in a particular corner of it ; or to sell as many acres of the tract as may be sufficient to satisfy the tax, the boundaries of which are to be ascertained by an official survey prior to the , consummation of the purchaser's title. No such difficulties as suggested can possibly arise in the construction of the power of sale under the character of statutes above indicated. All of them evidently contemplate a sale of the entire tract, or interest of the party against whom the tax is assessed, or a particular portion to be designated by metes and bounds, or other certain description. 1 Currie v. Fowler, 5 J. J. Marsh. (Ky.) 145 ; Waldron v. Tuttle, 3 N. H. 340. 2 2 Blackstone's Commentary, 192, 193. 493 § 554 THE SALE. § 553. This question was directly decided in Loud v. Penni- inan.i The act of Congress of 1815 provided that where property liable to the direct tax should not be divisible, so as to enable the collector by a sale of a part thereof to raise the whole amount of the tax, with all costs, etc., the whole should be sold, and the surplus paid to the owner. The land in question was susceptible of such a division as to bring the amount due ; but the collector sold an undivided half of the tract, and the sale was held void. By the court : " The col- lector should have sold a part of the land by metes and bounds, sufficient to have paid the taxes, etc., as it is admitted he could have done ; or if that could not have been done, he should have sold the whole, and have accounted for the sur- plus according to the requisition of the statute. It is clear that where the estate was capable of division the officer had no authority to sell an undivided part of it, but only so much as would be sufficient to pay the tax, etc., to be set off sepa- rately from the rest." It is not in the power of any officer acting under a special statute, to thrust a co-tenant upon the owner of an estate in severalty against his will.^ Where land sold for taxes is more than sufficient, the part sold must be designated by metes and bounds, and an undivided interest cannot be sold unless the interest of the tax debtor is already an undivided one.^ § 554. Report and Record of Sales.* — When the law re- quires the collector to report the sales to the recorder of deeds, the provision is mandatory as against a subsequent purchaser for full value without notice. The mere filing of the report in the office of the comptroller is not notice to a bona fide purchaser.^ So it was held in West Virginia that a provision requiring the purchaser to obtain from the surveyor a report specifying the metes and boimds, and identifying the 1 19 Pick. (Mass.) 539. " Hodge V. Wilson, 12 Smedes & M. (Miss.) 498. » See § 540. Townsend Savings Bank v. Todd, 47 Conn. 190 (1879). * See § 641. 5 King V. District of Columbia, 4 Mac Arthur, 36 (1879); Donohoe «. Hartless, 33 Mo. 335 (1863). 494 BECOED. § 556 land, could not be dispensed with. Wise or unwise, the legis- lature had required it, and an omission to even attempt to conform to the law in this respect was fatal. The statute curing irregularities did not apply to dispense with doing or attempting to do any act required by the law.^ When a sale is continued from day to day, recording a sale as made on the first day when it was really made on a subsequent day does not impair the title. It does not interfere with the owner's right to redeem, or in any way prejudice him.^ If the re- corder fails to note the day on which the sheriff returns the list of sales of land for delinquent taxes, so that his oflBce does not show when the list was returned, or if the office shows that the list was not returned for more than ten days after completion of the sale, or if the identity of the land sold by the sheriff with the land nsimed in the surveyor's report fails to appear on the face of the report or by proper official entry by the recorder, such irregularities prejudice the owner and avoid the deed.^ The making of the list of lands sold to the State is necessary to convey title ; * but in the case of lands sold to individuals, failure to make and file said list is not fatal. 5 § 555. Mistake of Officer at the Sale. — A mistaken an- nouncement by the collector at a sale that he has sold enough to satisfy the taxes, does not prevent his selling more imme- diately on discovei'y of his error, without an adjournment.® § 556. Change of County Lines. — Where, after an assess- ment is made, the county in which the proceeding was had is divided, the collector of the old county has power to sell land lying in the territory embraced in the newly created county.^ This is in conformity with the general principles of law in 1 On- V. WUey, 19 W. Va. 153, 154 (1881). 2 Callahan r. Hurley, 93 U. S. 387, 391 (1876). » Barton's Heirs v. Gilchrist, 19 W. Va. 223 (1881). * Mayson v. Banks, 59 Miss. 447. 5 Wolfe V. Murphy, 60 Miss. 1; approved in Wheeler v. Ligon, 62 id. 560. * Woodcock b. Bolster, 35 Vt. 632 (1863). ' Devor v. M'Clintock, 9 Watts & S. (Pa.) 80: Moss v. Shear, 25 Cal. 38. 495 § 556 THE SAI^ analogous cases.^ Taxes assessed and delinquent before sepa- ration are payable to the old county treasurer, and a sale by the treasurer of the new county is a nullity .* Where " the legislature in 1860 had passed the act authorizing the con- firmation of tax titles, which was substantially brought for- ward in the Codes of 1871 and 1880, and the case was in equity, under the statute, to confirm a levee tax title. To the bill the defendants interposed a plea that the lands, which were sold by the collector of Tallahatchie County, were cut off by legislative act from that county, and made part of Sun- flower County after the levy of the taxes, but before the sale, and thus was presented, alone, in the case, the question whether the provisions of the act changing the county boun- daries was to be construed as depriving the collector of Tallahatchie of the power to sell lands so excised from his county.' The court construed the act as authorizing the sale in controversy ; and this became, though local and special in its application, the second case in the Mississippi Reports, the decision in which could fairly be said to be favorable to the party who claimed under a tax title. Two such decisions in half a century!"* 1 West's Appeal, 5 Watts (Pa.), 87; Crawford Connty Com. v. Marion County Com., 16 Ohio, 466 ; State v. Walker, 17 id. 135-143 ; Hampshire Comity V. Franklin Connty, 16 Mass. 76, 86 ; Windham v. Portland, 4 id. 384, 389; Drake's Adm. v. Vaugban, 6 J. J. Marsh. (Ky.) 147 ; State s. Jones, 9 N. J. L. 357. 2 Hilliard v. Griffin, 33 N. W. 156 (Towa, 1887); 72 Iowa. 331. « Eskridge ti. McGmder, 45 Miss. 294 (1871). * See in the Minutes of the Mississippi Bar Association, Jan. 3, 1888, a paper on Mississippi Tax Titles, by R. H. Thompson. 496 CHAPTER XVn. PBADD. § 557. Summary of the Snbject. — Fraud vitiates every- thing.^ Contracts of whatsoever dignity, if tainted with fraud, are void at law and in equity. By it the most solemn proceedings of courts of justice are avoided ; and we are in- formed by high authority that even an act of Parliament conceived in fraud may be declared a nullity. There is noth- ing in the nature of tax sales which exempts them from the operation of this general maxim. On the contrary, a more rigid scrutiny into their fairness is demanded, because of the gross inadequacy of the price usually paid at such sales, and the great inducements held out for the perpetration of fraud iu the conduct of them. Positive fraud occasionally infects these sales ; as a combination of the oflBcer and purchaser, or the agent of the owner and the purchaser, to defraud the owner,^ or any combination to prevent competition among the bidders,* or the employment of puffers.* Fraud may exist also on the part of the tax purchaser after the sale which will estop him from asserting his tax title though the tax sale were good.^ The most frequent taint of fraud in tax sales arises from the existence of a relation between the purchaser and some person interested in the land which makes it inequitable to allow the purchaser to set up the tax title against such per- son. The relation may be direct and personal, or indirect, flowing through the relations of the parties to the land.^ 1 See Slater v. Maxwell, 6 Wal. (U. S.) 268; McCready ». Sexton, 29 Iowa, 356, 375. Mere inadequacy of price, however, is not a valid ob- jection to a tax sale. Slater v. Maxwell, su/jra. That fraud is a defence to a tax suit, see State v. Central Pacific R. Co., 7 Nev. 99. " § 558. » §§ 559-563. * § 564. « § 565. « § 566. VOL. I. — 32 497 § 559 FRAUD. § 558. Fraud of Officer or Agent and Purchaser. — Instances have occurred where the collector and purchaser have com- bined to defraud the owner by a sale and division of the spoil, where the taxes were in fact paid by the owner. Also, where an agent intrusted with funds to pay the taxes violated his trust, and by a similar arrangement with the purchaser per- mitted a sale. These and positive frauds of a similar char- acter of course render the sale void.^ Where the ofiScer conducting a tax sale agrees with the purchasers to receive a portion only of the taxes du^ at the sale, such agreement is illegal, and a sale under the agreement is also illegal.^ Such a sale is not rendered valid by a subsequent law declaring the agreement and sale valid and binding.^ § 559. A Combination to prevent Competition at the Sale avoids any Purchase affected by it. — Though positive frauds sometimes occur, the most numerous kind are those usually denominated constructive, or that class of frauds which may be inferred from the violation of public or private confidence, from the privity of the purchaser with the title sought to be divested, or on account of their being contrary to public policy. Such sales are void, not so much because they are opposed to the letter, as to the spirit of the revenue laws, and the principles of good faith which the common law exacts in transactions of this nature. A partnership or contract formed for the purchase of land at tax sales is against the policy of the law ; and if such contract be entered into for the express purpose of making such purchases, it is a fraud on the owner of the property, and the purchaser acquires no title. A com- bination among the bidders to prevent competition, as by an agreement express or tacit that they will take turns in bid- ding, avoids the sale as against the purchasers.* But two or more persons may unite in bidding off property, if their pur- 1 Schencfc v. Peay, 1 Dill. C. C. (U. S.) 267. ^ Conway v. Cable, 37 111. 82. » Ibid. * Easton v. Mawkinney, 37 Iowa, 601 (1873) ; Singer Manofactaring Co. ». Yarger, 2 McCrary (U. S.), 583 (1880) ; Springer v. Battle, 46 Iowa, 689 (1877); Johns v. Thomas, 47 id. 440 (1877); Frank v. Arnold, 35 N. W. 453 (Iowa, 1887). 498 COMBINATION TO PREVENT COMPETITION. § 559 pose is not to prevent competition among the bidders, but for their mutual convenience, as with the view of enabling them to become joint owners, or in case each desires to purchase a part only of certain property offered entire, or for any other reasonable and honest purpose.^ The fact that two bidders at a sale will not bid against each other does not affect the sale. So if two persons employ the same man to act as agent for them both in bidding at the sale, there is no fraud in the absence of an agreement not to compete, or understanding that the arrangement is for the purpose of preventing com- petition. So where B. bid for Robinson and Parker, indicat- ing that fact in his bids, and L. bid in his own name but really for Robinson, and L. assigned his certificate to Robin- sou, it was held that the sale was good.^ A combination to prevent certain lands being sold to certain bidders, but to which the present purchaser was not a party, and of which he was ignorant, will not vitiate his purchase.* No combination to prevent competition can be implied from the joint purchase of tracts by two persons at the sale.* An innocent purchaser of a tax title is not affected by the fact that there was a com- bination of the bidders at the sale, even though the statute says that such sales are " void." This word is frequently used in the sense of voidable, and as the whole spirit of the revenue law is to give confidence and security to tax titles, and as the holding an innocent purchaser subject to such de- fences would defeat this object, the word " void " in the law must be held to be used in its weaker sense, and bona fide purchasers protected.® So where lands were sold in mass at a sale that was not public, a subsequent bana fide purchaser without notice was protected.^ But one hold- ing under a quitclaim deed is not a bona fide purchaser 1 Morrison v. Bank of Commerce, 81 lud. 339, 340 (1882); Phippen r. Stickney, 3 Met. (Mass.) 884. ' Pearsop v. Robinson, 44 Iowa, 417 (1876). « Case V. Dean, 16 Mich. 13 (1867). * Kerr r. Kipp, 33 N. W. 116 (Minn. 1887). 5 Van Shaach v. Robbins, 37 Iowa, 203 (1873); see Huston v. Mark- ley, 49 id. 165 (1878); Sibley v. BuUis, 40 id. 429 (1875). • Martin v. Ragsdale, 49 Iowa, 589 (1878). 499 § 560 FRAUD. without note of equities ; he takes only the rights of his transferrers.^ § 560. The case of Dudley v. Little ^ is a strong authority in support of this position. The question arose upon a bill in chancery, in which the complainants alleged that they were the heirs of Israel Ludlow, and as such the owners of the land in controversy ; that 370 acres of this land, of the value of three dollars per acre, were purchased by the defendant for 133.73. The bill then charged that a fraudulent combination had been formed between the defendant and sundry other persons, to purchase large tracts of land at said sale, for the purpose of speculation; that it had been agreed between the defendant and those who were to participate in the profits of the specu- lation that the defendant alone should bid at the sale ; that the other partners in the contract should advance their re- spective portions of the purchase-moneys, and receive their share of the profits ; and that in pursuance of such fraudulent contracts the defendant purchased the complainants' land, and obtained a deed therefor. The prayer of the bill was to set aside the tax deed, etc. To this bill a demurrer was in- terposed, which was overruled, and a decree entered according to the prayer of the bill. In the opinion, the court say : " Such combinations have necessarily a direct tendency to prevent competition, which it is the duty of the legislature and the policy of the law to encourage. Over a sale of this description the owner has no control ; he cannot refuse a bid, or adjourn the sale, or fix a sum below which the property shall not be struck off. The sale is managed by the agent of the State. The owner is not consulted. The highest bidder becomes the purchaser, although the sum bid be less than a hundredth part of the value of the property. This being the case, any combination which has a tendency to reduce the price of the property by preventing competition must operate as a fraud upon the owner. The effects of such combinations 1 Watson V. Phelps, 40 Iowa, 483 (1875); Bragg v. Paulk, 42 Me. 502; May V. Le Clare, H Wal. (U. S.) 217; Vattier v. Hinde, 7 Pet. (D. S.) 252; Boon v. Chiles, 10 id. 177; Smith's Heirs v. Bank of Mobile, 3 How. (U. S.) 333. » 2 Ohio, 504. 500 COMBINATION TO PREVENT COMPETITION. § 561 cannot be controlled by any vigilance on the part of the owner. It frequently happens that large quantities of land are offered for sale on these occasions, in the absence and without the knowledge of the owner ; and if such combina- tions are permitted, all the persons present at the sale might form themselves into companies, and by an agreement not to bid agauist each other might purchase in the whole of every tract offered for the amount of tax due upon it. We do not mean to say that partners cannot purchase property at a tax sale for the convenience of the business they are engaged in, when speculation is not their object ; but that a partnership or combination cannot legally be formed for the purpose of making such purchases." Upon the same principle, any agreement or understanding between two or more bidders at such sales that one of them only shall bid upon a particular tract of land, that they will not bid against each other, or that they will bid in turn, if carried into execution, is void, whether the parties to the combination are to share the profits or not ; because its direct effect is to diminish competition.^ § 561. General averments of fraud amount to nothing unless the facts constituting the fraud are distinctly and spe- cifically averred, and unless also those facts do in law and fact constitute fraud ; thus, though any sheriff who is concerned in the purchase of any land at a tax sale is liable to a penalty of $5,000, to be recovered by indictment, yet where the bill merely charges generally that the sheriff was interested in the purchase of certain lands without showing how this in- terest made the sale fraudulent, and without any allegation that by the combination between the sheriff and purchaser it was intended to prevent competition in bidding, or that such was the effect, or that any other person did bid or desired to bid for himself, this does not amount to fraud.^ Where a combination is entered into by the collector and the principal bidders at a tax sale to prevent competition at the sale, and in order that the lands should be struck off to one of the parties for the sums charged to the respective tracts, and 1 Kerwer v. Allen, 3 Iowa, 578. 2 Twombly «. Kimbrough, 24 Ark. 459. 501 § 563 FRAUD. bidding was thus prevented, the court will enjoin the collector from making a deed to a party to the fraud.^ § 562. So, where the combination among the purchasers is not to bid against each other or to bid in turn, evidence that such course was pursued is admissible in the first in- stance, though it is not shown that defendant, who was a purchaser thereat, was a party to the combination, as the direct effect of such a combination is to prevent competi- tion.* But evidence that the purchaser at the tax sale by his misconduct prevented Competition with him by the bidders present in reference to many pieces of land bid for by him, is not admissible to impeach the validity of the sale where it is not shown that such conduct extended to or was in some way connected with the tract in controversy ; and whether evi- dence of such alleged misconduct, even if connected with the particular tract in controversy, would be admissible as against a bona fide grantee, may well be questioned.^ When a pur- chaser bids off property at a tax sale, the fact that a com- bination existed to prevent certain lands from being sold to other bidders, but to which he was not a party and of which he was ignorant, will not vitiate his purchase.* § 563. A custom exists in some of the Western States, among the regular attendants upon sales of this character, that no one of them shall bid in competition with another who alleges that he has a claim, upon the land offered for sale. By claim, is understood any colorable or defective title to the whole or any portion of the land put up. Such customs are clearly void, and if acted upon render the sale illegal. It is a well-settled principle that aU agreements whereby parties engage not to bid against each other at judicial or statutory sales are void. They are unconscien- tious, against public policy, have a tendency to affect in- juriously the character of sales at public auction, and to mislead private confidence. They operate virtually as a fraud up(m the owners of the property. This principle has been applied to judicial sales, judgments, decrees, and orders, 1 Gage V. Graham, 57 111. 144. " Kerwer v. Allen, 31 Iowa, 578. » Eldridge ». KueLl, 27 Iowa, 160. * Case v. Dean, 16 Mich. 12. 502 PUFFERS. — ESTOPPEL. § 565 to sales made by persons acting under a power conferred by a special statute, and to those made by public officers under the authority delegated to them by the public laws of the land.^ § 564. Puffers. — If underbidders or puffers are employed at the sale to enhance the price and deceive other bidders, and they are in fact misled, the sale will be held void as against public policy .2 § 565. Estoppel to assert a Tax Title. — In Woodburn v. Farmers' and Mechanics' Bank,^ where one became the judg- ment creditor of another, and after the judgment became a lien on the land in question the premises were sold for taxes upon au assessment against the judgment debtor, and the creditor purchased in the property at the tax sale and afterwards caused an execution to be issued upon his judg- ment, and permitted a stranger to purchase the property at the execution sale vrithout informing him of his tax title, it was held that the conduct of the judgment creditor was a fraud upon the execution purchaser, and that the latter was entitled to the land. 1 1 Story's Equity, § 293. " Ibid. " 5 Watts & S. (Pa.) 447. 603 CHAPTER XVlil, WHO MAT PURCHASE A TAX TITLE. § 566. Snmmaiy of tbe Snbject. — There is a class of frauds now to be noticed, which includes purchases made by those who are bound by covenant, or upon legal or equitable princi- ples, to pay the taxes, and jet suffer the land to go to sale for the purpose of acquiring a title against the owner, under whom they claim the possession, or to whose title they are in some manner privy .^ Some cases hold that any one who is not under a legal obligation to pay the taxes may be a purchaser.2 But the better opinion is that one who holds a position of trust or confidence in reference to the subject of sale, or has a duty to perform which is inconsistent with the character of a purchaser, cannot buy.^ The wife of a trustee may acquire a title to the incumbered land good at law, though the court intimates it would not be in equity.* If any one who has a right to redeem becomes a purchaser at a tax sale, it is merely a payment of the taxes.^ Any obligation, legal or moral, to pay the taxes will prevent the accruing of a valid tax title.* A person who has conveyed in trust, or a 1 Blake v. Howe, 1 Aib. (Vt.) 306; Willard v. Strong, 14 Vt. 532; Coppinger v. Rice, 33 Cal. 408; see also Miller v. Williams, 15 Gratt. (Va.) 213, 222; Moore v. Titman, 44 111. 367, 370; Chickering v. FaUe, 26 id. 507. 2 Williams v. Townsend, 31 N. T. 411; Waterson v. Devoe, 18 Kan. 223; Ferguson v. Etter, 21 Ark. 160; Bettison v. Rudd, 17 id. 546. « Van Epps v. Van Epps, 9 Paige (N. Y.), 237 (1841); Burhaus r. Van Zandt, 3 Seld. (N. Y.) 523 (1852). * Carter v. Bustamente, 59 Miss. 559. 6 Fair v. Brown, 40 Iowa, 209; Stears v. Hollenbeck, 38 id. 550; Porter V. LafEerty, 33 id. 254. « Moss V. Shear, 25 Cal. 38; Christy v. Fisher, 58 id. 256. 504 SUMMARY. § 566 cestui que trust, cannot acquire a title adverse to the trust by purchase of a tax title.^ Where A. agreed on good con- sideration to convey certain land to B., the latter promising among other things to pay the taxes, and B. failed to per- form the conditions, allowed the property to be" sold for taxes, and bought it, it was held that it was his duty to pay the taxes ; his failure constituted a breach of good faith, and he could not hold against A. under his tax title.^ The general principle running through all the cases is this : One who is under a legal obligation at the time of sale to pay the taxes for which the land is sold, or who was previously under such obligation, and though it may have ceased yet the pur- chaser would be taking advantage of his own wrong, cannot be a purchaser at the tax sale, nor subsequently acquire the tax title, with any other effect than simply to pay the taxes or redeem the land so far as regards the interests of any one who would otherwise be injured by said purchaser's failure to pay the taxes in accordance with his duty. So also if there is an obligation, though not a legal one, running to the State, yet one arising from contract, or even a mere duty to his own interests to protect his own claim on the land ; ^ for in such a case it is unnecessary to complicate the title with a tax deed regarding the transaction as a payment, and giving the purchaser a lien on the land for reimbursement accomplishes all just purposes. One may always strengthen himself against • an adverse claimant by purchasing a tax title ;* for example, a mortgagee who has foreclosed,^ or a mortgagee as against one claiming under a former tax sale,® or a junior tax claim- ant as against a senior.' A defective title will not stand in the way of purchase at a tax sale. One whose only interest in the land is based on a void deed may buy a tax title.^ In general a purchase by a tenant in common^ or the husband of a tenant in common,^" inures to the benefit of all the co- tenants ; but this is not so if the purchasing co-tenant holds 1 Phillips 0. Zerbe Kun, etc., Imp. Co., 25 Pa. St. 56. 2 Haskell v. Putnam, 42 Me. 245 (1856). » §§ 592, 594. * § 567. » § 567. 6 § 568. ' § 569. » § 570. 9 § 571. i» § 572. 505 § 566 WHO MAT PURCHASE A TAX TITLE. adversely to the others,^ or the tax title existed before his tenancy ,2 or he did not buy the tax title until after it had matured in the hands of third persons, thus dissolving the co-tenancy.^ A tenant in common cannot buy in the interest of his co-tenants at a tax sale, so as to gain any more than a lien on the land for reimbursement ; * but a tenant in com- mon of the reversionary interest may buy in the life estate at a tax sale.^ One holding or claiming a l^e estate cannot by buying a tax title cut off the reversioners ; ^ but it has been held that a doweress could thus defeat the husband's credit- ors.' A tenant who is under no obligation to pay taxes may buy a tax title and so destroy his landlord's title and the lease ; * but otherwise if he agreed with the landlord to pay the taxes,' or if the circumstances of his holding make it his duty.^" One in possession and under an obligation to pay the taxes cannot buy the tax title, as if he is in possession and claiming title when the taxes accrue,^^ or is in under an agreement to purchase the land,^ or has agreed to pay the taxes for which the land is sold -^ but the mere fact of pos- session is not enough to prevent purchase of a tax title,^* un- less it appears that the possessor ought to have paid the taxes,^ though the presumption is held to be the other way, and possession is held to presume duty to pay taxes in those States where the land is assessable to the occupant.^^ The owner of land cannot in general acquire any better title to the land through a tax sale.^^ If of several lots sold to A. at a single sale any one belonged to A., the whole sale to him is void.^* Where a person believing himself the real owner of land sold for taxes repurchased the same under act of 1877, when in fact he was not the owner, he got no title by his repur- chase, but the title revested " in the party to whom the land belonged," and the purchaser at tax sale was divested of all 1 § 573. 2 § 574. « § 575. * Hardy ». Gregg, 2 So. Rep. 358. 5 Fox V. Coon, 1 So. Rep. 629; s. c. 64 Miss. 465. » § 576. ' § 577. 8 § 578. » § 579. " § 580. w § 581. w § 582. " § 583. " § 584. « § 585. i«§586. "§587, M§587a. 506 SUMMABT. § 566 rights.^ But the effect of a purchase by the owner depends on his relation to the party objecting to the tax title. The owner cannot defeat his lease,^ nor a mortgage given by him- self or one under whom he claims ; but wlien the destruction of prior liens or interests with which he is in privity is not involved, the owner may gain a tax title, and rely either on that or on his former title or on both.^ So the grantor in a quitclaim deed may buy in a tax title and it will not inure to the benefit of the grantee.* Neither a mortgagor^ (by war- ranty or quitclaim), nor any one claiming under him as a second mortgagee,^ or one owning a part of the equity of re- demption,^ can purchase a tax title as against the mortgagee. No one who has a right to redeem from the mortgage can defeat it in this way.* A mortgagee, yfh&Hh&c in or out of possession, cannot acquire a tax title that will be good against the mortgagor * or other incumbrancers ; ^^ the contrary, how- ever, has been held in regard to a mortgagee out of possession and not receiving the rents and profits." If a mortgagee can buy as against the mortgagor, he certainly ought to be allowed to buy against a junior mortgagee ; yet this is clearly in con- flict with the current of authority.^ The general rule . is that one incumbrancer cannot defeat another by the purchase of a tax title ; ^^ but the opposite has been held," and the rule would not apply where the claims were derived from adverse sources. An heir cannot purchase the land at a tax sale unless he renounces his interest. ^^ The person assessed may not really be under any obligation to pay the taxes, and so may rightfully buy.^^ An agent whose duty it was to pay the taxes cannot acquire a title good against his principal, nor as to any one against whom his principal could not buy.^" Some cases hold that no officer exerting a control over the sale can be a purchaser ; ^* and this seems in harmony with the spirit of the law in such matters. Other cases, however, 1 Green ». Williams, 58 Miss. 752. » § 588. » § 589. « § 590. 6 § 591. « § 591. » § 592. » § 592. 9 § 593. 10 § 594. « § 593. ^ § 594. i»§ 594. 1* § 595. « § 596. « § 597. " § 598. " §§ 604-606. 607 § 567 WHO MAT PUBCHASB A TAX TITLE, regard a sale to such an officer as good if it was in fact fair.^ In all cases it must be remembered that time is a material factor in the problem ; if the tax title existed before the birth of the circumstances that are set up as creating a disability in the purchaser, the title is good ; ^ as where one buys land or becomes interested in it after the tax sale, he, not having been under any obligation to pay the taxes, may buy in the tax title.* So if the said circumstances cease, and it would not amount to allowing a man to take advantage of his own wrong, a tax title may be bought.* It is further to be kept in mind that only the person in whose favor the law holds the sale invalid can elect to regard the transaction as a pay- ment of the taxes instead of a purchase of the land. The purchaser himself cannot so >elect, cannot force the matter on the owner or other interested party as a payment, and demand of him reimbursement.^ § 567. One may buy a Tax Title to strengthen himself against an Adverse Claimant.^ — To preclude any person from making and relying on a purchase at a tax sale there must be some- thing in the circumstances which make it his duty to the State to pay the taxes, or something which renders it inequitable between himself and the holder of the existing title that he should make the purchase. That every man who claims an estate in land has a right against every other person making a claim, by which his adversary claimant is bound to pay the taxes, is not the law. It has been frequently held that one could purchase as against an adverse claimant, and even that a mortgagee out of possession could purchase as against his mortgagor, at least when he has foreclosed prior to his pur- chase of the tax certificate, and probably though he has not done this.' I § 599-603. » § 574. » § 607; see § 578, contra. * § 575. » § 608. « See also §§ 568, 569, 573. ' Waterson v. Devoe, 18 Kan. 223; see 30 Wis. 102; '27 Pa. St. 160, 165; Blackwood ». Van Vliet, 30 Mich. 121; Williams v. Townsend, 31 N. Y. 411. The cases in 26 111. 507, and 44 id. 367, sometitnes cited to the point that a mortgagee cannot purchase as against the mortgagor, do not seem to sustain that ^ropositioil. Special circumstances entered into those cases. 608 ADVERSE CLAIMANT. § 570 §568. Between a Mortgagee out of Possession and ons claim- ing Title under a former Tax Sale there is no Obligation on For- mer to pay Taxes. -^ In Spratt v. Price ^ the defendant was the original owner. In 1875 he sold to Comfort, taking from him a mortgage for a part of the purchase-money. He fore- closed the mortgage and bought in the property in 1877. In 1876 the land was sold for the taxes of 1875, and L'Engle be- came the purchaser. The latter assigned his certificate to Spratt, who obtained a tax deed. The defendant answered that L'Engle and Spratt were his agents to pay the taxes on the land, and that even if their deed was good, he has a better- title because of a subsequent purchase by him at a tax sale for the taxes of 1876, assessed against Comfort. The court held that the assessment against the mortgagor in posses- sion instead of against the purchaser at the prior tax sale was proper, the latter having no estate in the land till the period of redemption is passed, and. the law providing that land should be assessed to the owner or occupant ; and that although a purchase by a mortgagee out of possession might as between mortgagor and mortgagee be regarded as merely a payment of the tax, yet as between the mortgagee and Spratt, a stranger claiming the land under the former sale, there was no duty resting on the mortgagee to pay the tax, and the pur- chase was good. As to Spratt, the defendant was a stranger occupying no fiduciary relation. § 569. Junior Tax Claimant may buy as against a Senior Tax Claimant. — In Eaton v. North ''' it was held that the party holding a junior tax deed (not being in possession under it) is under no greater obligation to pay the taxes thereafter as- sessed upon the land than one holding an earlier tax deed ; and he may abandon all claim of title under it and acquire title under a deed for taxes assessed upon the land after he took such earlier deed. § 570. A Defective Title will not preclude the Farchase of a Tax Title. — One who never had possession, but only holds a quitclaim deed to land which conveys no title, may buy in a tax title to the land. There is nothing in reason or law to I 18 Fla. 298-310 (1881). ^ 29 Wis. 75. 509 § 571 WHO MAT PURCHASE A TAX TITLE. prevent a man who holds a defective title or a mere paper title from purchasing a better at a tax sale.^ Any one may buy land at a tax sale who has no interest in it and is under no obligation to pay the taxes ; and possession under a deed which conveys no interest will not disqualify the grantee from purchasing at tax sale. So where B. conveyed to M., and before the deed was recorded conveyed to S. by quitclaim, and S. acquired by assignment the title of a purchaser at a tax sale taking place meanwhile, it was held that S. could hold the property, and that if the assignment was obtained by fraud the objection must come from the party' defrauded, not from those having a hostile interest to the tax title.^ One not in possession, and whose only interest is based on a void tax deed, may be a purchaser at a subsequent tax sale.* § 571. Tenant in Common. — It is a general principle that no person can be allowed to purchase who is in a situation of trust or confidence with respect to the subject of the purchase, or where he has a duty to perform inconsistent with the char- acter of purchaser. But where a joint-tenant, or tenant in common, buys in an outstanding title which is adverse to the common titfe, the purchase is not void, but subject to the election of the co-owners, who must within a reasonable time elect to avail themselves of the purchase and offer to con- tribute their share of the purchase-money.* But in the ab- sence of fraud or special contract this doctrine does not apply to co-occupants of government lands, where one shall have acquired title from the United States.^ A tenant in 1 Atkison v. Dixon, 89 Mo. 468, 469 (1886); Coxe v. Gibson, 27 Pa. St. 160-165. " Curtis V. Smith, 42 Iowa, 665 (1876). » Neal V. Frazier, 63 Iowa, 452 (1884); Mallory v. French, 44 id. 133; Bowman v. Corkvill, 6 Kan. 381; Blackwood v. Van VUet, 80 Mich. 118; Coxe V. Gibson, 27 Pa. St. 165. * Brittin v. Handy, 20 Ark. 381 (1859); Venable v. Beauchamp, 3 Dana (Ky.), 321 (1835); Lee v. Fox, 6 id. 171 (1838); Tisdale v. Tis- dale, 2 Sneed (Tenn.), 596; Rothwell t7. Dewees, 2 Black. 613; see Swin- burne V. Swinburne, 28 N. Y. 568 (1864); Jones v. Stanton, 11 Mo. 433 (1848); Weaver v. Wibble, 25 Pa. St. 270 (1855); Keller v. Auble, 58 id. 410; Duff V. Wilson, 72 id. 442 (1872). 6 Sullivan v. MoLenans, 2 Clarke (Iowa), 437 (1856). 510 TENANT IN COMMON. § 573 common acquiring a tax title by purchase or assignment holds it for the benefit of his co-tenant,^ even, it seems, after partition, if the tax was assessed before partition.^ § 572. The husband of a tenant in common cannot acquire a valid title by purchase of the property at a tax sale.^ A tenant in common cannot get a title as against his co-r tenants by buying the land at a tax sale. The purchase is regarded in law only as a payment of the taxes. The tenant acts only in dischai-ge of his duty, and is the agent of his co-tenants in making the payment. He has only a charge on the land for contribution.* If the husband of a co-heiress in possession of land purchases an outstanding incumbrance or tax title on the land, he will be held to have bought for the benefit of all the tenants in common, on condition of their contribution.^ § 573. Tenant in ^Common Adverse. — Where a mortgage of land and the foreclosure judgment and sale purported to be of the whole premises, but the purchaser acquired in fact only an undivided part, and became in law tenant in common with the mortgagor, who, after the foreclosure and sale, had acquired the remaining interest in the land, it was held 1 Lewis V. Robinson, 10 Watts (Pa.), 334; Williams v. Gray, 3 Me. 207 : Brown v. Hogle, 30 111. 119; Dubois v. Campaa, 24 Mich. 360; Page t. Webster, 8 id. 263; Baker v. Whiting, 3 Sumner C. C. (U. S.) 475; Chickering v. Faile, 38 111. 342; Downer's Adm. ». Smith, 38 Vt. 464; State, ex rel. Roe, v. Williston, 20 Wis. 228; Butler v. Porter's Ex., 13 Mich. 292; Holterhoff v. Mead, 36 Minn. 42 (1886). 2 Maul V. Rider, 51 Pa. St. 377; Lloyd v. Lynch, 28 id. 419. » Bums V. Byrne, 45 Iowa, 285 (1876). • Downer v. Smith, 38 Vt. 467 (1866); Allen v. Poole, 54 Miss. 334 (1877); Davis v. King, 87 Pa. St. 261 (1878); Davidson v. Wallace, 53 Miss. 475; Fallon v. Chidester, 46 Iowa, 588 (1877) ; Weare v. Van Meter, 42 id. 128 (1875); Page v. Webster, 8 Mich. 263 (1860) ; Bracken v. Cooper, 80 ID. 221 (1875); Harrison v. Harrison, 56 Miss. 174 (1878) ; Brown V. Hogle, 30 LI. 119; Pratt v. St. Clair's Heirs, 6 Ohio, 93; Chick- ering V. Faile, 38 HI. 342; Burbrans v. Van Zandt, 3 N. T. 523; Moore V. Tihnan, 44 HI. 367 (1882); Conn v. Conn, 58 Iowa, 747; Shell v. AValker, 54 id. 386; Picot v. Page, 26 Mo. 398 (1858); Titsworth v. Stout, 49 111. 78 (1868). 6 Busch V. Huston, 75 111. 345 (1874). 611 § 576 WHO MAT PUBCHASE A TAX TITLE. that such purchaser might take title to the remainder by purchase of an outstanding tax deed of the whole, his claim of title to the whole under the foreclosure sale being adverse to the mortgagor.^ § 574. Title Prior to Tenancy. — In Michigan, it is held that one tenant in common may purchase a tax title in ex- istence before he became a tenant in common, and may by means of such adverse title oust hia co-tenants.^ § 575. Former Tenant in Common may bay a Taz Title sifter the Tenancy is dissolved.^ — After the tax title has matured in the hands of a stranger, it is said that one tenant in common may purchase and hold adversely to his co-tenants.* Where the tax title in a stranger has become absolute, so that the tenancy in common is dissolved by the superior title, one tenant in common may purchase such a title for his own exclusive benefit as against co-tenants out of possession. " The true rule seems to be that where the tenants or owners are in possession under an imperfect title, one cannot pur- chase an outstanding title and appropriate the whole to him- self and thus oust the others. But this principle does not extend to a tenant in common after eviction." In this case it appeared that neither of the co-owners was in possession either at the time the stranger bought at the tax sale or at the time the co-tenant purchased his title.® § 576. One claiming a life estate cannot defeat the rever- sioners by buying a tax title ; but in one case it was held that the creditors of the former owner might be cut off.^ Nor can 1 Wright V. Sperry, 21 Wis. 331; see also same case, 25 id. 617; see also Frentz v. Elotsch, 28 id. 312, where the right of a tenant in com- mon to buy in an ontstanding tax title for his exclnsive benefit is dis- cussed, bat not decided. 2 Sands t>. Davis, 40 Mich. 18 (1879). » See, however, Maul ». Rider, 51 Pa. St. 377; § 571, last line. * Kirkpatrick v. Mathiot, 4 Watts & S. (Pa.) 251 ;" Reinboth v. Zerbe Run, etc.. Imp. Co., 29 Fa. St. 139. For a full discussion of the rights and duties of a tenant in common in reference to the payment of taxes and acquiring tax titles upon the common property, see Dubois v. Campau, 24 Mich. 360. 6 Alexander v. Sully, 50 Iowa, 193 (1878). « § 577. 512 LIFE TENANT. § 576 a tenant for life purchase and hold adversely to the remainder- man or reversioner. It is the duty of the tenant for life to cause all taxes assessed upon the estate during his tenancy to be paid ; ^ and if he neglects it, and thereby subjects the land to be sold t(T pay such taxes, and purchases it in himself or suffers a stronger to purchase, and then procures a release to himself, he can acquire no right to the estate against the owner in fee.^ Where a tenant by curtesy, in possession, took a tax deed for taxes due before his tenancy commenced, it was held that if he could acquire title at all thereby, he held it for the benefit of the reversioners as well as for his own benefit ; and where in such case his wife's title had been by deed to her before marriage in her maiden name, and there was noth- ing of record to show who were the heirs-at-law of the grantee so named, or that such tenant was in possession as such sur- viving husband, it was held that equity would interfere to pro- tect the rights of the reversioners, which were liable to be lost by a conveyance of the land to one purchasing without notice of the facts. In such a case the decree should be that on pay- ment by the reversioners of their ratable proportion of the cost of the tax deed, the title conveyed thereby should vest in them, subject to the life estate of the tenant ; and that the decree should be recorded in the registry of deeds. Where the tenant had also taken a tax deed which he fraudulently refused to record, the decree should further require him to put such deed upon record, and should provide as above in reference to the title conveyed by it.* A tenant for life in possession who takes a tax deed for taxes due before his tenancy commenced, if he can acquire any title at all thereby, holds it for the benefit of the reversioners, as well as for his own; and equity will interfere to protect the rights of the reversioners, which are liable to be lost by conveyance to one without notice, the judgment being that on payment by the 1 Phelan v. Boylan, 25 Wis. 679; Johnson v. Smith, 5 Bush (Ky.),102; Arnold v. Smith, 3 id. 163. a Varney v. Stevens, 22 Me. 331; Prettyman v. Walston, 34 lU. 175, 191; Higgins v. Crosby, 40 id. 261; Patrick v. Sherwood, 4 Blatch. C. C. (U. S.) 112. * Phelan t>. Boylan, 25 Wis. 679. VOL. I. — 33 613 § 578 WHO MAT PUBCHASE A TAX TITLE. reversioners of their share of the said taxes the title shall vest in them subject to the life estate.^ A devisee, W., of a life estate in certain lands in Iowa by a foreign will not pro- bated in the rei sitce, allowed the property to be sold for taxes and became the purchaser. The court said : " It appears that W. claimed an interest in the land under the will. Surely, while claiming such an interest she could not acquire a tax title which would defeat the reversioners." ^ § 577. Do'weress.as against Husband's Creditors. — In Bran- son V. Yancy,^ which was a bill in chancery by the purchaser at an execution sale against Yancy's heirs to set aside a tax deed executed and delivered to the widow of Yancy and sub- ject the land to the payment of their debts, it was held by the court that " a widow, who after the death of her husband occupies his residence, his children, some of them of age, living with her, is under no obligation to pay the tax accruing thereon between his death and the assignment of her dower. Therefore a purchase by her of the premises for such taxes made after the assignment of dower, without actual fraud, will not be set aside in favor of her husband's creditors." Hender- son, J., dissented, saying, " It was the duty of the occupant to keep down incumbrances, and any acquisition of title made by her, growing out of her omission, is for the benefit of all concerned." § 578. A tenant who is not bound to pay the taxes may ac- quire title to the premises by purchasing at a tax sale made after the execution of the lease to him, or he can buy in the title of one purchasing at such sale, but cannot buy in and set up against his landlord the title of one derived from a tax sale preceding the lease.* The distinction in this case ap- pears to us entirely without foundation. The decision was however right on the facts, for the purchaser at the sale was the agent of the landlord, the very agent whose duty it was to have paid the taxes, and the tenant knew thi^ when he bought 1 Phelan v. Boylan, 25 Wis. 679. » Olleman v. Kelgore, 52 Iowa, 40 (1879). » 1 Dev. Eq. (N. C.) 77. * Sharpe v. KeUey, 5 Denio (N. T.), 432, 433 (1848). 514 TENANT. § 580 the tax title. In Kansas, it is held that in absence of agree- ment to the contrary, a tenant is under no obligation to pay the taxes, and that he can purchase the property at a tax sale, and thereafter resist his landlord's claim for rent or damages to the property .^ So in Arkansas ; but the tenant cannot use his possession acquired as tenant as a basis to ac- quire title as an aetual settler, and thereon found a claim hos- tile to his landlord.^ A tenant is not bound to pay taxes, and may set up a tax title under a sale since he became tenant.^ It is lawful for a tenant in possession to purchase at tax sale the land of his landlord, and the sale, if valid, not only extin- guishes the landlord's title but cuts off the lease.* A pur- chase at a tax sale by one whose duty it was to have paid the taxes operates only as a payment of them.^ The court held that the evidence proved that it was the duty of the tenant to his landlord to pay the tax, saying that a tenant may buy at a tax sale where he has not agreed to pay the taxes, and where the facts and circumstances impose on him no moral duty toward his landlord to pay such taxes. § 579. Agreement by Tenant to pay Taxes. — But where a tenant permitted land to be sold for taxes which he had cove- nanted to pay, and after expiration of his term took an assign- ment of the tax title, he was compelled to quitclaim to the owner.* § 580. Circnmstances throwing on a Tenant the Duty to pay Taxes. — One in possession of real estate and occupying a house built thereon by another for his benefit, and who con- tinues in possession several years without paying or offering 1 Weichselbanm ». Carlett, 20 Kan. 710 (1870). ^ Wegener v. McLaughlin, 33 Ark. 195 (1878). 8 Bettison v. Budd, 17 Ark. 546 (1856). * Bettison ». Budd, 17 Ark. 546; Ferguson v. Etter, 21 id. 160. 6 Williamson v. Russell, 18 W. Va. 623, 624 (1881). ' Shepardson v. Elmore, 19 Wis. 424; see also Carithers ». Weaver, 7 Kan. 110. In a summary proceeding to eject a tenant holding over, he cannot show in defence a tax title in a third party acquired since the commencement of his tenancy. The tax deed does not operate to transfer the lease, or change possession. QwEre, as to the effect of an attornment. Chase v. Dearborn, 21 Wis. 57. 615 § 681 WHO MAY PURCHASE A TAX TITLE. to pay rent, and receives all the profits of the estate, cannot divest the owner of his property by buying it for taxes levied and payable during his occupancy. The statute of limitations in such case is the one barring relief on the ground of fraud, and it does not begin to run until actual discovery of the fraud.i § 581. One in possession claiming title will be presumed bound to pay taxes, and cannot acquire any additional title by a purchase at a tax sale.^ One in possession when taxes ac- crue, and against whom they are assessed (taxes being assess- able against the occupant), can acquire no title under a sale for such taxes.^ So if a person is in possession, claiming the land as his own when the tax is levied and the sale made, it is his duty to pay the taxes, though he has no paper title, and is a trespasser. Under such circumstances he cannot acquire title by neglecting to pay the taxes and purchasing at the tax sale.* A purchaser of real estate subject to a mortgage, who takes possession of the property and who neglects to perform his duty of paying the taxes, whereby the land is sold to a third party, cannot acquire any title by purchasing from such third party .5 One who at a tax sale buys land to which he claims title only removes the incumbrance.® One in posses- sion of land under color of title (as under a guardian's deed), who receives the rents and profits, and allows the land to be sold for taxes and bought by his agent, cannot strengthen his title by a transfer of this tax title from said agent to himself.^ In Christy v. Fisher ^ it appeared that the purchaser bought for one who lived upon and claimed title to a portion of the premises, and whose duty it therefore was to pay the taxes or 1 Daffitt B. Tuhan, 28 Kan. 292 (1882). 2 Whitney o. Gunderson,31 Wis. 361 (1872); Miller o. Ziegler,31 Kan. 417 (1884). . - Bassett v. Welch, 22 Wis. 176, 177 (1867). * Barrett v. Amerein, 36 Cal. 322; see also Reily v. Lancaster, 39 id. 354; Kelsey v Abbott, 13 id. 609. ' Leppo v. Gilbert, 26 Kan. 139 (1881). « Jacks V. Dyer, 31 Ark. 344 (1876). ' Guynn v. McCauley, 32 Ark. 109 et seq. (1877). « 58 Cal. 258 (1881) ; Moss v. Shear, 25 id. 45. 516 ONE IN POSSESSION. § 582 a part of ihem. The court said : " It is well settled that one who is under a moral or legal obligation to pay the taxes is not in a position to become a purchaser at a sale made for such taxes. If such person permits the property to be sold for taxes, and buys it in, either in person or indirectly through the agency of another, he does not thereby acquire any right or title to the property, but his purchase is deemed one mode of paying the taxes. So the purchase of the property at a tax sale by the agent of the administrator of the deceased late owner of the land, while he or his tenants are in possession, passes no title." ^ § 582. One in Possession under an Agreement of Purchase cannot buy a Tax Title to the Land. — A vendee cannot acquire a title adverse to his vendor by the purchase of the land at a tax sale.* The principle applies to one who is in possession under an executory contract of purchase, and to a sub-pur- chaser holding under him. It is his duty to pay the taxes.^ A vendee in possession under a title bond and those claiming under him, as his widow in right of dower, his heirs, etc., are bound to pay the taxes, and cannot buy at a tax sale.* In Petty V. Mays ^ the plaintiff went into possession of the land under an agreement to purchase it. Afterward at the request or suggestion of Gordon, in whom was the legal title, Petty bought the land at tax sale. The court held as against mort- gagees. " No title accrued to Petty by this purchase, because, whether Petty was in possession as a purchaser, or as the tenant of Gordon, which the plaintiff claims he was, the bid- ding in of the property, under the circumstances, amounted only to payment of the taxes on the property, and the tax deed can give no valid title to parties whose duty it was to 1 Bemal v. Lynch, 36 Cal. 135, 146. " Voris V. Thomas, 12 HI. 442; Baily v. Doolittle, 24 id. 577; Glancy B. Elliott, 14 id. 456; Oliver v. Croswell, 42 id. 41; see Quinn v. Quinn, 27 Wis. 168. » Johnston v. Smith's Adm., 70 Ala. 118 (1881); Quinn v. Quinn, 27 Wis. 168; Voris ». Thomas, 12 HI. 442; Blake v. Howe, 15 Amer. Deo. 690, note. ♦ Fitzgerald v. Spain, 30 Ark. 100 (1875). » 19 Fla. 661-663 (1883). 517 § 585 WHO MAT PURCHASE A TAX TITLE. pay the taxes." In this case the evidence clearly showed a scheme to cheat the mortgagees. § 583. One in possession under an agreement to pay the taxes for which the land is sold cannot buy in the tax title. What he pays is so much on his contract.^ Where one, A., enters under an arrangement with another, B., who is in pos- session by virtue of a contract with the owner, requiring B. to pay all taxes, A. can acquire no title against the owner under a sale for any taxes B. should have paid, but holds such title in trust for the owner.^ Where one in possession of land, under an agreement to pay the taxes for the owner, suffers the land to be sold for taxes to a third person, from whom he afterwards acquires the title, he cannot rely on the same against the owner or those claiming under him.^ § 584. The mere Fact of Possession will not prevent Purchase at a Tax Sale. — Although a person in possession under a lease, or a contract of purchase, or with a claim of title, cannot ac- quire a tax title, yet if one is in possession having no claim of title when the taxes mature and the sale is made, he may be- come a purchaser.* The mere fact that one is in possession of premises does not debar him from purchasing an outstanding threatening tax title, if he is not holding in such a manner as to make it his duty to pay the taxes, as where he claims to be the owner and the land is assessed in his name. The law presumes that it was not his duty to pay the taxes, and that he acted in good faith in acquiring the tax title.^ If one in possession without claim or color of title acquires what he considers a good title, as a tax deed, from that moment his possession becomes adverse, and such a one in possession may set up his tax title without first surrendering his possession.^ § 585. One in possession of a tract of land at the date of the assessment may purchase at the sale, unless it appears that he 1 Stinson v. Richardson, 48 Iowa, 545 (1878). " Bertram v. Cook, 32 Mich. 519 (1875). « Busch ». Huston, 75 lU. 343 (1874). * Seaver v. Cobb, 98 lU. 203, 204 (1881); Link v. Doerfer, 42 Wis. 395 (1877). 6 Stubblefield v. Borders, 92 HI. 280, 286 (1879). « Buckley v. Taggart, 62 Ind. 239 (1878). 518 ONE IN POSSESSION, § 585 was bound to pay the taxes, in which event he can acquire no title by his purchase.^ In Blakeley v. Bestor 2 the defendant set up an outstanding tax title, dnd it appeared that he was in possession of the laud at the time of the assessment and sale, and the court refused to presume that he was bound to pay the taxes. " It is insisted that the defendant is not in a position to avail himself of an outstanding tax title, be it ever so regular, for the reason that he is shown by the record to have been in possession of the premises at the time the taxes accrued and the sale took place ; wherefore it is said it was his duty to have paid the taxes, and that he ought not to be permitted to avail himself of a tax title acquired through his default. This may or may not be so. It does not necessarily follow that because a person is in possession of premises he is bound to pay the taxes assessed upon them. He may occupy them as a tenant, under an agreement that his land- lord shall pay the taxes, and in such case there cojild be no obligation on the tenant to pay them, particularly if, in pur- suance of the agreement, they were listed for taxation in the landlord's name. Supposing the tax title to have been regu- lar, the defendant has the right, prima facie, to introduce it in evidence. When introduced, it would be competent for the plaintiff to avoid it, by proving that the defendant occu- pied a position, while it was maturing, which made it his duty to have paid the taxes, and which forbids his taking advantage of a title acquired through his default. This proof the person seeking to avail himself of the tax title should have an oppor- tunity to rebut or explain by other evidence." The fact of possession when the taxes accrued (when an objection) only goes to the validity of the tax deed as a conveyance of title, and not at all to its admissibility as evidence.^ One who in 1865 took out valid tax deeds based upon sales for the taxes of 1858 and 1861, and went into possession under them, was under no obligation to pay the delinquent taxes of the years from 1859 to 1864 inclusive, he not being in possession nor the owner of the land ; and he may take deeds upon the sales 1 Bowman e. Cockrill, 6 Kan. 311, 331. » 13 El. 708. * Gilman v. Biopelle, 18 Mich. 145, 163. 519 § 586 WHO MAY PUECHASB A TAX TITLE. for such taxes, and bring the action provided by said ch. 22 to quiet his title under said deeds.^ In Tweed v. Metcalf ^ it was held that though it is riot competent for one to acquire a cumulatiTC title to lands by allowing them to be sold for taxes after he has taken possession of them by virtue of a tax deed,* yet he may bid upon the same lands at a tax sale before the time of redemption under his former purchase has expired, and have the benefit of his bid, he being before that time under no obligation to pay the tax. A party in possession cannot buy at a tax sale if the rent justly owing by him is equal to the taxes, whether his possession is that of owner, tenant, or trespasser.* § 586. Duty to pay Tazes presnined from Fossession. — And where it appears that one was in possession of land, claiming title thereto, when certain taxes accrued, it must be presumed that the land was assessed to him as owner or occupant, as the law required, and that it was his duty to pay the taxes ; and he could therefore acquire no title by a purchase at the sale for such taxes.^ And one in possession of and claiming title acquires no additional title by such purchase, if the taxes were a lien upon the land at the time of his taking possession, whether the land were taxed to the occupant, or to one having no claim or title, or as non-resident,^ Where the grantee in a tax deed, being in possession under it, suffers the land to be sold for taxes accruing subsequently to his possession and purchases the certificate, it seems that such purchase is merely a redemption, and he cannot take a deed 1 Lybrand v. Haney, 31 Wis. 230. a 4 Mich. 579. • See Laoey v. Davis, 4 Mich. 152. * Gaskins v. Blake, 27 Miss. 675, approved in Pool v. Ellis, 64 Miss. 555, where the party was in possession under a judicial sale before confirmation. 6 Whitney v. Gunderson, 31 Wis. 359; Jones „. Davis, 24 id. 229; Bassett v. Welch, 22 id. 175. Quare, whether the assignee of one who purchases under such circumstances, by showing that he was ignorant of those circumstances, may maintain his title. Bassett v. Welch, supra. » Lacey v. Davis, 4 Mich. 140, 152. See McMinn v. Whelan, 27 Cal. 300; Moss v. Shear, 25 id. 38; Dubois v. Campau, 24 Mich. 368. 520 THE OWNER. § 589 based upon such certificate and maintain an action under ch. 22, Laws of 1859.^ § 687. The Owner as a Tax Purchaser. — A purchaser will not be permitted to derive an advantage from the omission of that which it was his duty to do. And where a tract is assessed to L. and bought by W., who really owned two thirds of the tract, W. could not hold any of the land ; the sale was one and indivisible, and his duty to pay the taxes on the part he owned avoided it.^ § 587a. If the Purchaser ovtiis a Part of the Land he buys, the Sale is void. — Where the south half of a section of land was assessed as one parcel, although owned by different par- ties in severalty, and the owners of some of the lots paid their part of the tax before sale, and the residue of the land on which the tax was unpaid was sold for taxes, and the owner of a lot in the portion so sold took a tax deed of the whole, it was held that he took no title, he being in default in not paying his own tax.^ § 588. The owner ceuinot defeat a Lease by baying a Tax Title. — Where land subject to the lien of certain taxes is leased, and afterward at tax sale bought by the owner, the lease is still good ; the taxes are extinguished as by a payment.* § 589. Ow^nership alone does not preclude Purchase of a Tax Title to the Land. — In Minnesota, on demurrer to an answer setting forth an ordinary title in fee simple, and also a tax title to the same property, the court said : " Under the tax laws one already the owner of real estate may become the purchaser at tax sale, and he may afterwards rely on his antecedent title, or on the tax title, or on both. This claim under the tax sale is no way inconsistent with a claim of title antecedent to it.^ No question of the destruction of liens or other rights existing at the time of the tax sale was in view here." 1 Lybrand ». Haney, 31 Wis. 230. 2 Lewis V. Ward, 99 111. 527 (1881) ; Cooley v. Waterman, 16 Mich. 366. » Cooley V. Waterman, 16 Mich. 366. * Smith V. Phelps, 63 Mo. 585 (1876). s Branham o. Bezanson, 33 Minn. 49 (1885). 621 § 591 WHO MAT PUECHASE A TAX TITLE. § 590. Grantor in Quitclaim may buy Tax Title. — Where it does not appear that a deed of conveyance contained any covenants of seisin or warranty, tax deeds subsequently acquired by the grantor do not inure to the benefit of the grantee, and the grantee cannot claim to have had possession thereunder so that the statutory limitation applicable to such a possession would run in his favor .^ § 591. A Mortgagor or one claiming under him cannot defeat the Mortgagee. — The adjudged cases fully and clearly illus- trate the extent of this rule. A mortgagor in possession, who has conveyed with warranty, is bound to pay the taxes, and prevent a sale of the estate ; and if he acquires a tax title, it inures to the benefit of the mortgagee.^ So, where the mortgagor conveys the estate in pledge by simple quitclaim. So, where one holding title from the mortgagor subject to the mortgage takes a tax title,' e. g., a second mortgagee before or after purchase at a foreclosure sale.* And the fact that the deed was issued to the husband of the purchaser, who acted as her agent in the purchase, does not change the rule.^ A debtor whose property has been sold on execution and bought by his mortgagee creditor cannot subsequently acquire a tax title under a sale for taxes accruing while he was owner and assessed in his name." Where a mortgage is conditioned that if the mortgagor should pay the mortgage debt and " also all taxes which may be hereafter assessed on said premises, then this deed shall be void," the mortgagor cannot acquire a tax title under a sale for taxes assessed after he has sold the premises and surrendered possession to a third party. As between mortgagor and mortgagee, the duty was on the former to see that the taxes were paid.^ One who is part 1 Sydnor v. Palmer, 29 Wis. 226. = Fuller u. Hodgdon, 25 Me. 243; Gardiner i>. Gerrish, 23 id. 46; Frye f. Bank of IlliaoLs, 11 111. 367; Coombs ». Warren, 34 Me. 89; Williams V. Hilton, 35 id. 547; Faure «. Winans, Hopkins, Ch. (N. Y.) 288. 8 Avery w. Judd, 21 Wis. 262. * Smith ». Lewis, 20 Wis. 350; see also Porters. Lafferty, 33 Iowa, 254; Edgerton v. Schneider, 26 Wis. 385. ' Edgerton v. Schneider, supra. « Magner ». Hibernia Ins. Co., 30 La. Ann. 1357 (1878). ' Allison w. Armstrong, 28 Minn. 276 (1881). 622 A MORTGAGOR. § 592 owner of a second mortgage, and owner of the equity of re- demption, cannot at a tax sale acquire title superior to the first mortgagee.^ It is the duty of the mortgagor or his grantee to pay the taxes, and he cannot set up against the mortgagee a title having its origin in a failure to perform that duty.^ So, where one hujs land releasing the grantor from his duty to pay hack taxes and an existing mortgage, he takes upon himself that duty, and cannot set up a subsequent tax title against the mortgagee.^ A mortgagor in possession cannot defeat the mortgage by a tax title.* When a mort- gagor is by his mortgage bound to pay the taxes, he cannot permit the estate to be sold for taxes and by becoming the purchaser defeat the rights of his mortgagee. Neither can a tenant for life or years gain in this way any title against the reversioner, nor a tenant in common against his co-tenant, nor a tenant of the mortgagor as against the mortgagee.^ § 592. One 'who O'wns any portion of the equity of redemp- tion from a mortgage cannot buy a tax title that will be valid against the mortgagee. In Middletown Savings Bank V. Bacharach* the plaintiff held a mortgage on certain real estate. The defendant had levied an execution upon the equity of redemption, subject to a prior levy, and had set off one eighth to himseK. Subsequently he bought portions of the property at tax sales and took deeds to himself, which after the expiration of a year were duly recorded. After purchase of the tax title, but on the same day, he bought a second mortgage on the same property, which was after- ward foreclosed. The defendant claimed that his tax title was superior to tlie plaintiff's mortgage. The plaintiff claimed, 1 Goodrich V. Kimberiy, 48 Conn. 395 (1880). » Dayton v. Rice, 47 Iowa, 429 (1877) ; Cooper v. Jackson, 99 Ind. 567 (1884); Traveller's Ins. Co. v. Patten, 98 id. 209. * Stears c. Hollenbeck, 38 lo^, 550 (1877). « Kezer ». Clifford, 59 N. H. 208 (1879). « Dunn V. Snell, 74 Me. 24 (1882); Downer v. Smith, 38 Vt. 464; Varney v. Stevens, 22 Me. 331; Blake c. Howe, 1 Aiken (Vt), 306; WOIiams v. Gray, 3 Me. 207 ; Ptye r. Bank of Illinois, 11 Dl. 383 ; McMahon V. McGraw, 26 Wis. 614. 6 46 Conn. 523-525 (1879). 523 § 592 WHO MAY PtJRCHASB A TAX TITLE. (1) That Bacharach paid the taxes as second mortgagee, and therefore could not hold ; and (2) That as owner of a part of the equity of redemption it was the defendant's duty to pay the taxes ; and therefore his tax title was not good. In regard to the first point the court remarked that the purchase of the second mortgage might perhaps be regarded as a practical admission of the insuflBciency of the tax title ; that if at the time of buying the tax title he contemplated the purchase of the mortgage, it might be held that he paid the taxes as second mortgagee ; but that a stranger may buy a tax title in good faith and afterwards within the year may buy a sec- ond mortgage on the property without invalidating his tax title. As to the plaintiff's second point the court said : " We base our discussion of this question upon the proposition, which seems to be conceded, that one whose duty it is to pay a tax cannot be a purchaser of property offered for sale for the purpose of collecting it. The payment of the money will be regarded as a payment of the tax, and not as a purchase of property. The word ' duty ' constitutes the debatable ground. Was it Bacharach's duty to pay the taxes ? The answer to the question and the decision of the point must hinge on the meaning we give to this word. It does not signify merely a legal obligation. The party against whom a tax is assessed is directly liable for the tax, and his duty is clear. So too a purchaser or lessee who has contracted to pay the tax has placed himself under such obligations, and has assumed such a relation to the property, that it is his duty to pay the taxes. In these cases, in which there is a direct legal obligation, there- can be no question about the duty. But other parties may acquire an interest in real estate who are not directly responsible to the public for the taxes, and who enter into no contract in respect to them, and yet may be so situated that it is their duty to pay the taxes. For instance, a purchaser of the property, or of the equity of redemption subject to a tax lien, may be compelled to pay the taxes in order to protect his own title. In such cases it is for his interest to do so. Necessity and interest combine to make it, in a broad sense, his duty to do so. Such a party ordinarily cannot be a pur- 524 A MOETGAGOE. § 592 chaser at a tax sale. So too a mortgagee is under no legal obligation to pay the taxes, certainly as between himself and the mortgagor ; and yet he may be compelled to pay them in order to protect his mortgage. Although there may be cases which hold that under certain circumstances he may purchase a tax title, yet the general rule is that he cannot, and for the very good reason tliat it is not necessary for him to do so. He may pay the tax, and the amount will be added to his debt, and he will hold the whole property as security therefor. In such a case it is unnecessary to complicate the legal title with a tax deed, and the law will not allow it to he done. It simply makes it his duty to pay in default of the mortgagor. In this case the question arises between the mortgagee and one who has acquired an iiiterest in the equity of redemption. If Bacharach had acquired the whole equity of redemption instead of one eighth of it, it is entirely clear that, as between himself and the petitioners, it would be his duty to pay the taxes ; still, in a certain sense he was under no legal obligation to do so. He might abandon his interest in the property, in which case the tax could not he collected of him. IJoes it vary the case in principle that he owned less than the whole equity ? We think not. Whether the equity of redemption be worth much or little, whether he owns the whole or a part, can make no difference. In either case, if his interest is worth protecting, he will pay the tax. In neither case can he purchase a tax title. Let us test this case by supposing a different state of facts. Suppose the petitioners had been compelled to pay the taxes. Unquestionably they could have added the amount paid to their demand, and any party redeeming (from their mortgage) must pay it. Now, could Bacharach redeem by virtue of his interest in the equity of redemption? There can be but one answer to that question. Could he have been required, if he did redeem, to refund to the petitioners the taxes paid by them ? The answer to that question is equally obvious. We think it is a proposition that cannot be contro- verted, that any party who sustains such a relation to the prop- erty that he has a right to redeem {from a mortgage), and if redeeming may he required to refund to the mortgagee the taxes 525 § 594 WHO MAT PUKCHASE A TAX TITLE. paid hy Mm, cannot he a purchaser of the property if sold for taxes. As between him and the mortgagee it is his duty to pay the tax. § 593. A Mortgagee as a Tax Purchaser. — The mortgagee cannot acquire any title at a tax sale whereby the mortgagor may become barred of his equity of redemption, whether he is in or out of possession.^ In Williams v. Townsend,^ where a mortgage provided that the mortgagor should pay the taxes and assessments, and in default of so doing that the mortga- gee might discharge the same and collect them as a part of his mortgage ; upon the failure of the mortgagor to pay the taxes and the purchase of the land at the tax sale by the mortgagee, it was held that no such relation of trust or confi- dence existed between the mortgagor and mortgagee as to preclude the latter from becoming a purchaser.^ It has also been held that a mortgagee out of possession is not bound to pay the taxes, and may become a purchaser.* A mortgagee out of possession not receiving the rents and profits, and under no obligation to pay taxes, may buy a tax title and set it up against the mortgagor. " He may buy the equity of redemption at execution sale ; then why may he not buy a tax title ? " ° A mortgagee in possession must pay the taxes, and cannot acquire a tax title against the mortgagor.^ The facts that a purchase is made at a tax sale by A. for B., and that A. holds a mortgage on the land, does not affect the title acquired by B.^ § 594. One Incumbrancer cannot defeat Another by Purchase of a Tax Title. — In Fair v. Brown ^ the ground was taken that 1 McLaughlin v. Green, 48 Miss. 175, 209 ; Brown v. Simons, 44 N. H. 475, 'where the mortgagee was in possession, taking the rents and profits. See also Taylor v. Snyder, Walk. Ch. (Miss.) 492; Moore v. Titman, 44 111. 370, and cases cited. « 31 N. Y. 411. 3 See also Sturdevant v. Mather, 20 Wis. 576, 585. • Waterson v. Devoe, 18 Kan. 223 (1877). ' Martin v. SwofEord, 59 Miss. 329 (1881) ; see Williams v. Townsend, 31 N. Y. 411; Morrow v. Dows, 28 N. J. Eq. 459, note; Coombs v. War- ren, 34 Me. 89; Chapman v. Mull, 7 Ired. Eq. (N. C.) 292; Smith v. Lewis, 20 Wis. 350. 8 Schenck v. Kelley, 88 Ind. 444 (1882). ' Jury V. Day, 54 Iowa, 573 (1880). 8 40 Iowa, 211 (1875). 526 AN INCUMBKANCEB. § 594 one incumbrancer cannot defeat the title of another by pur- chase at a tax sale. The purchaser in this case was admitted by the court to be under no obligation to pay the taxes, but he " was authorized to redeem from the tax sale " to save his liens ; and " equity will not permit him to acquire a title for an inconsiderable sum, when he was authorized to remove the trifling incumbrance by redemption. Though not bound to pay the tax, yet it was his right to do so to protect his own liens. He cannot obtain that protection by pursiiing a course that will deprive the (prior) mortgagee of his security and leave the mortgagor to sustain the weight of the liens, which are personal judgments, after being deprived of his property by the tax title. Equity will relieve against such oppres- sion, and teach the grasping creditor moderation in his de- mands, and that he cannot destroy others to build up his own fortunes." Tt may be difficult to see how harm can result so long as the mortgagee or other lien-holder has a right to redeem, by allowing another lien-holder to purchase, any more than by allowing any stranger to buy ; or why it is any more grasping in one than the other. A mortgagee in possession or out of possession cannot purchase a tax title as against the mortgagor or other mortgagees. They all have a common interest in the estate that creates a relation of trust and con- fidence, and it should be presumed that the purchase was for the common protection.^ A mortgagee does not owe any duty to mortgagees above or below him to protect them by the pay- ment of taxes ; but if he does pay the taxes, or purchase the property at tax sale, it operates as a protection in the option of the other lien-holders. If they, however, refuse to accept the burden, they cannot have the benefit. If a second mortgagee buys at a tax sale, the first mortgagee cannot afterwards fore- close and resist the tax title on the ground that it was paid for the benefit of the first mortgagee unless he is willing to reim- 1 Hall I'. Wescott, R. I., County of Prov. (Mareh, 1886) ; see Bassett V. Welch, 22 Wis. 175; Whitney v. Gnnderson, 31 id. 359, 379; Chicker- ing V. Faile, 26 HI. 507; Moore ». Titman, 44 id. 367; Harkreader v. Clayton, 56 Miss. 383; Conn. Mat. life Ins. Co. v. Bolte, 45 Mich. 113. 527 § 596 WHO MAT PUECHASE A TAX TITLE. burse the second mortgagee.^ A junior mortgagee cannot acquire a tax title that shall defeat the lien of the senior in- cumbrancer.* A mortgagee is entitled to add the amount of taxes paid, against a junior mortgagee seeking to redeem.^ In South Carolina, if a mortgagee (a mechanic's lien being on the property subsequent to the mortgage) buys at a tax sale, the mortgage merges in the fee, and the estate is held subject to the mechanic's lien.* A title obtained by one acting really for a junior mortgagee is void as against the senior mortga- gee.5 In Woodbury v. Swan^ the court said : " It is a general rule, founded on all the requirements of good faith, that any one interested in land with others, all deriving their titles from a common source, cannot acquire an absolute title by tax deed to the injury of the others. The payment of taxes by a mortgagee protects his interest, and for this purpose he may acquire a tax title, but he cannot set up that title to de- feat a prior mortgage." He who pending an injunction sued out by himself to restrain the enforcement of a mechanic's lien obtains a tax title to the property upon which the lien is sought, is thereby guilty of attempting to obtain an uncon- scionable advantage, and will not be allowed to use his tax title to defeat the mechanic's lien.^ Nor can a purchaser at a foreclosure sale under a first mortgage, the second mort- gagee not having been made a party to the proceedings, cut off the right of such second mortgagee to redeem, by purchas- ing a tax title.* § 595. One who holds a judgment lien on the land may pay the taxes, but is not under any obligation to do so, and has a right to become a purchaser at a tax sale.^ § 596. An heir cannot be the purchaser unless he renounces I Conn. Mut. Life Ins. Co. v. Bulte, 45 Mich. 113 (1881). * Garrettson v. Scofield, 44 Iowa, 35 (1876). « Strong V. Burdick, 52 Iowa, 630 (1879). * Devereux v. Taft, 20 S. C. 555 (1883). 6 Frank v. Arnold, 35 N. W. 453 (Iowa, 1887). • 59 N. H. 22 (1879) ; M. & Bank ». Bacharach, 46 Conn. 513. ' McLaughlin v. Green, 48 Miss. 209. • Anson v. Anson, 20 Iowa, 55. » Morrison v. Bank of Commerce, 81 Ind. 340 (1882). 528 HEIR. — PERSON ASSESSED. — AGENT. § 598 his interest. A presumptive heir, who is not shown to have accepted the succession of his deceased mother either un- conditional or as beneficiary heir, and who has subsequently renounced the succession, is not liable for the debts of the deceased, and may, in absence of proof of an intent to defraud creditors, make a valid purchase at a tax sale of the succes- sion property.^ The purchaser at a tax sale of land in which he has an interest as heir acquires no additional title.^ § 597. The person in w^hose name the land was listed and assessed for taxation, and whose duty it is to pay the tax, can acquire no additional title by purchasing it at the sale.^ The fact that lands are assessed to and sold in the name of a par- ticular person does not alone preclude his purchase of them at the tax sale and acquiring title thereto, if he is under no obligation to pay the taxes, and they were assessed to him without any agency of his own ; and a tax deed, regular but for the objection that the person to whom the land was as- sessed became the purchaser, ought to be received in evidence ; and the opposite party may then show that the purchaser occupied such a position as made it his duty to pay the taxes.* § 598. An agent is disabled in equity from dealing in the matter of the agency on his own account or for his own benefit ; and if he does so he will hold in trust for his prin- cipal,^ whether the principal's title is defective or not.® All profits of the agency beyond the agent's ordinary compen- sation belong to the principal. An agent for the owner of real estate cannot purchase the property to which his agency > Miltenberger v. Weems' Heirs, 34 La. Ann. 259 (1879). 2 Piatt V. St. Clair's Heirs, 6 Ohio, 227; Choteau v. Jones, 11 111. 322 ; Dubois V. Campau, 24 Mich. 860, 368. » Douglas V. Dangerfield, 10 Ohio, 152; Ballance v. Forsyth, 13 How. (U. S.) 18; Voris v. Thomas, 12 111. 442; Glancy v. Elliott, 14 id. 456; Chambers v. Wilson, 2 Watts (Pa.) , 495 ; Garwood v. Hastings, 38 Cal. 223. * Pleasants v. Scott, 21 Ark. 370. = Fisher v. Krutz, 9 Kan. 501 (1872); Adams v. Sayre, 70 Ala. 318 (1881, mortgage foreclosure sale) ; Fountain Coal Co. v. Phelps, 95 Ind. 271 (1883, sheriff's sale). « Rogers v. Lockett, 28 Ark. 290 (1873). VOL. I. — 34 529 § 598 WHO MAT PUECHASE A TAX TITLE. relates, at tax sale without a previous explicit renunciation of the agency.^ And if the taxes for which the land is sold accrued during the trust, the trustee cannot purchase, even though the sale be after the fiduciary relation has ceased. He cannot take advantage of his o^vn delinquency.^ The pur- chase by an attorney of the tax title to land in regard to which he has been retained is void, as inconsistent.with his relation to his client, though he acted without bad faith.^ An agent who assumes to act for the owner, but takes an assign- ment of the certificate to himself, cannot as against the prin- cipal hold the land any further than as security for the money paid by him.* Nor can an agent whose duty it is to pay the taxes become the purchaser of his principal's land at such a sale ; ^ nor can one who has agreed to pay the taxes purchase for his own benefit at the price of a redemption a tax title upon which the time of redemption has expired.* The fact of agency is a question of fact for a jury.^ If the agent of the original owner, being furnished by him with money to redeem from the second of two tax sales, fraudulently takes an as- signment of the certificate and has the deed issued to hunseU, quaere., whether the purchaser at the prior sale can in any case set up such fraud against a party claiming under the second sale, or whether this can only be done by the owner and those in privity with him? But such fraud cannot be set up to defeat the title of a party claiming under the second sale being a subsequent purchaser for value, unless the knowledge of it at the time of his purchase is brought home to him.^ 1 Murdoek v. Milner, 84 Mo. 96 (1884). 2 Morris v. Joseph, 1 W. Va. 256 (1866). « Wright V. Walker, 30 Ark. 44 (1875). * Houstou o. Buer, 117 lU. 324 (1886). * Oldhams v. Jones, 5 B. Mon. (Ky.) 458; Matthews v. Light, 32 Me. 305; Bartholemew v. Leech, 7 Watts (Pa.), 472 ; Baker v. Whiting, 3 Sumner C. C. (U. S.) 475; Huzzard «. Trego, 35 Pa. St. 9 ; Schedda v. Sawyer, 4 McLean C. C. (U. S.) 181; Krutz c. Fisher, 8 B:an.90; Barton V. Moss, 32 HI. SO. 6 Coxe «. Wolcott, 27 Pa. St. 154. » Lamb o. Irwin, 69 Pa. St. 436. 8 Baiox e. Leidgen, 23 Wis. 292. 530 AGENT. § 599 Proof that defendant in ejectment, who claimed under a tax title, had cut and sold wood from the land (receiving the pro- ceeds) while acting as plaintiff's agent in respect thereto, was admissible to show that he had money in his hands which he ought to have applied to the payment of the tax for which the land was sold. And the fact that in an action to recover from such agent moneys so received plaintiff would have been compelled at common law to sue in as&umpsit, and waive the tort, does not render such evidence inadmissible in this action for the purpose of showing that defendant could not acquire title under the tax deed, though it shows him guilty of a fraudulent violation of duty.^ Such agent cannot acquire a tax title as against his principal merely because the latter has been in default in remitting funds to pay the taxes, but must first distinctly notify the principal that he renounces the agency.^ One who as agent is charged with the payment of taxes cannot buy the property at tax sale, nor take the title of another by assignment, nor assign his own so as to give his assignee any more rights than he has himself. But an agent's title is not void ; it is only voidable. And the principal must, in order to redeem from the agent or his assignee, pay the same amount he would have to pay the treasurer if the taxes had not been paid by the tax sale.* Where Gaines bought land at tax sale under an amicable agreement with Smith, who was receiving the rents and profits and ought to have tept down the taxes, as against his mortgagees, no title was acquired by Gaines as against Smith or the incumbrancers, but only a right to reimbursement.* § 599. PriTChase by an Officer or his Deputy. — It seems to be a debatable question whether the oflicer intrusted with the power of sale may purchase the land. The best opinion is against the right. This question fairly arose in Chesnut v. Marsh,* was discussed by the counsel, but not decided by the 1 McMahon v. McGraw, 26 Wis. 614. ' Ihid. » Ellsworth ». Cordrey, 63 Iowa, 675 (1882). * Hunt 1-. Gaines, 33 Ark. 275 (1878). » 12 Dl. 173; Marsh v. Chesnut, 14 HI. 223. 531 § 601 WHO MAT PURCHASE A TAX TITLE. court. There the clerk of the county commissioners' court who was required by law to assist the sheriff in making the sale, whose duty it was to keep a register of the sale, to exe- cute certificates of purchase, and through whom alone a re- demption could be effected, was the purchaser. The question, however, principally argued upon this branch of the case was as to the jurisdiction of a court of law to declare the sale void. It was urged that this class of frauds was peculiarly within the province of a court of equity. § 600. Sale to a Clerk sustained. — The case of Pox v. Cash ' arose upon a statute very much like that of Illinois ; the sale was made to the clerk and sustained. By the court : " The clerk to the commissioners is not forbidden by law to be a purchaser of land sold at public sale by the commissioners for arrears of taxes ; nor is it so opposed to the policy of the law as to make it iniquitous and void. The sale is open to all except the commissioners themselves, who are the vendors, and cannot therefore both buy and sell. The clerk is merely the scrivener or ministerial agent of the commissioners. He is, it is true, employed or appointed by the commissioners, sub- ject to their directions and instructions ; and without any in- dependent authority or control over such sales, has no power in ordering, arrestiiig, or continuing them, or in directing to whom the lands shall be stricken down. Everything he does in relation to them must necessarily be in subservience to the directions of the commissioners." ^ § 601. Deptdy Sheriff allowed to buy. — InNallew.Fenwlck* the question as to the right of the deputy sheriff to purchase at the tax sale arose, but was not discussed. It seemed to be conceded, however, that in this respect the sale was unobjec- tionable. In Yancy v. Hopkins,* where the sheriff who made the sale became the purchaser, the title was held valid in his hands. But in this case there was a general custom recognized 1 11 Pa. St. 207. 2 The clerk of an auction sale for taxes may pnvchase. Wells v. Jack- son Iron Man. Co., 47 IS. H. 235; a tax collector cannot purchase, directly or indirectly, at his own official sale. Chandler v. Moulton, 33 Vt. 245. 8 4 Rand. (Va.) 591. * 1 Munf. (Va.) 419, 437. 532 OFFICER OB DEPUTY. § 602 in a public statute, and proved in the case itself, for sheriffs and their deputies to buy land at tax sales. Roane, J., said : " While there was no express inhibition at that day, in any statute, against the «A«ri^'s biddiug for his own private emolu- ment, such inhibition is not, on the other hand, to be inferred from the reason of the principle on which, in other cases, it has been held that certain descriptions of persons are disabled to purchase property offered for sale by themselves. The in- hibition in those cases seems to arise from the confidence placed in and the intimate knowledge acquired by trustees, commissioners of bankruptcy, auctioneers, etc., which would enable them, if permitted to purchase, to avail themselves of facts coming to their knowledge in their several characters, and by withholding them from others to lessen the prices of the articles exposed to sale, to their own emolument. But in the case in question no confidence has been reposed in the sheriff, and no facts have come to his knowledge which he might abuse to his own advantage ; he has no other informa- tion on the subject than is derived from the books of the com- missioners as aforesaid ; it would be too much to suppose him cognizant of the particular circumstances attending all the tracts of land in his county. This case, then, does not seem to fall within the reason of the principle before mentioned ; and it is not shown by any adjudged case that the inhibi- tion has, in Ungland, been extended to sheriffs or collectors, though I presume the case must have occurred in a thousand instances." • Again, it was remarked in the same opinion that a bid by the sheriff " might be absolutely necessary to coun- teract combinations to defeat the collection of the revenue, whether arising from the sympathy of the by-standers or other causes." A statute was afterwards passed in Virginia prohibiting the sheriff and his deputies from acquiring title to land under tax sales. § 602. Purchase by County Commissioner in Charge of Sale held good. — In Pennsylvania, it has been held that a county commissioner may purchase, in his own right, unseated land duly sold for taxes at a price exceeding the taxes and costs ; as when the bidding reaches that point his duty to the county 533 § 603 WHO MAT PURCHASE A TAX TITLE. as a commissioner is ended so far as regards his duty to pur- chase for the county. But he cannot purchase for himself at a price less than the taxes and costs. In case the bids do not reach the taxes and costs, a sale can only be made to the commissioners in their oflBcial capacity and for the use of the county.^ But in Russel v. Reed ^ it was held that while the county might refuse to ratify such a purchase, and might insist on charging the commissioners individually with the arrears of taxes and the costs of sale in a case where the conveyance to the commissioners was for more than the taxes in arrears and costs of sale, yet that was a matter entirely between the county and her own commissioners, and that the title of the owner was nevertheless divested by such sale.3 § 603. Sale to Deputy Register held proper. — In Kentucky, it was decided that though it would be against the policy of the law to permit a deputy register of the land-office to be- come a purchaser of non-resident lands on a sale made by the register, yet the purchase might not for that reason alone be absolutely void, but it could only be sustained by its appearing to be in every respect fair, free from all suspicion, and made for a full and adequate consideration.* It must be confessed that no difference in principle exists between a purchase by a sheriff at his own sale, and that of a collector selling land for the non-payment of taxes assessed upon it. The same policy which forbids the former is equally opposed to the latter.* When this subject again comes before the court, it ought to be carefully considered ; for the decisions cited above may be regarded as innovating upon principles which have heretofore been regarded as landmarks. 1 Cuttle V. Brockway, 32 Pa. St. 45; s. c. 24 id. 145. » 27 Pa. St. 166. ^ The remarks in Cuttle v. Brockway, supra, do not overthrow nor were they intended to interfere in any respect with the case of Peters ». Heasley, 10 Watts (Pa.), 208, upon this point. * Morton v. Waring's Heirs, 18 B. Mon. (Ky.) 72. In this case it was held that $l^j^ for eight hundred acres of land was not an adequate consideration. ^ Lazarus' Lessee v. Bryson, 3 Bin. (Pa.) 54, 58. 534 OFFICER OR DEPUTY. § 605 § 604. Other Cases have strongly held that no Officer exert- ing any Control over the Sale could he a Purchaser. — In Taylor's Devisees v. Stringer,^ where the deputy was the pur- chaser, the title was held void in the hands of a bona fide pur- chaser, who claimed title under the deputy. In a recent case in Vermont ^ it was expressly held that a tax collector selling land to pay taxes cannot either by himself or his agent pur- chase such estate, and his title is void against the former owner, who may maintain ejectment for the land, although he does not redeem within the time allowed by law. The officer whose duty it is to sell the land cannot become the purchaser for himself ^ or as agent for another.* But an officer who in no way makes or controls the sale as a clerk at the auction may be a purchaser.^ So a deputy sheriff having no control of the collection of taxes may bid as any other person.® § 605. Where a deputy county treasurer had funds of his minor son whicli he wished to invest, and for that purpose pro- cured M. to bid off property at a tax sale, and the certificate was made to M. but never delivered to him, and the deputy paid the price to the treasurer and took the certificate and got M. to assign it to the minor, it was held that the sale was void under § 885 of the Code, which avoids any sale in which any county treasurer or auditor shall be directly or indirectly interested. The object of the law is to secure perfect fairness in the sale, which is as truly prevented if the bidder is act- ing for the officer's interest, acting under his direction and for his accommodation, as if the officer himself did the bidding. When the bidder announced that he would take the lot for 1 1 Gratt. (Va.) 158. " Chandler v. Moulton, 33 Vt. 245, citing Pierce v. Benjamin, 14 Pick. (Mass.) 356; Perkins v. Thompson, 3 N. H. 144; Mills i». Goodsell, 5 Conn. 475. » McLeod V. Burkhalter, 57 Miss. 65 (1879); Galbraith v. Drought, 24 Kan. 591 (1880); Clute ». Barron, 2 Mich. 192 (1851). * Corbin ». Beebee, 36 Iowa, 336 (1873); Everett v. Beebee, 37 id. 452. * Wells V. Company, 47 N. H. 258 (1866) ; O'BeiUy v. Holt, 4 Woods, 645. 6 Hare v. CarnaU, 39 Ark. 199 (1882). 535 § 607 WHO MAT PURCHASE A TAX TITLE. the amount due, he but announced the officer's will in the matter.^ § 606. The county clerk, whose duty it is to advertise delin- quent lands, and to attend and make a record of sales, and to issue certificates of sale and redemption and finally the deed, is forbidden by public policy from being a purchaser. But the owner seeking relief in equity must refund the legal taxes, penalty, and costs, and interest from the sale, and all sub- sequent taxes paid by him with interest from the dates of their payment.^ § 607. One iT-ho becomes the Owner of Land after the Teue Sale, and Tvas not under any Obligation to pay the Tazes, may buy in the Tax Title. — Where land was owned by Z. in 1850, and was afterwards claimed by A. under a title from Z.'s executor, executed in 1860, and also under two tax sales, one made in 1858 to Shaw, and one in 1862 to A. himself, and the defendants brought evidence to show that Z. long before his decease sold the land to Boyer, from whom defendants derived title, and that A. had bought from the executor with notice of the rights of Boyer, A. took the title of Shaw by assignment on the very day upon which the executor's deed was made to him, the court upheld A.'s title by the assignment, saying: " There is nothing in the testimony to indicate that this was intended as a redemption of the land from the tax sale, nor does it follow as a matter of law that it was a redemption, and not an acquisition of title. There is no valid reason why either the owner of land sold for taxes, or a stranger to the title, may not, within the time allowed for redemption, take from the purchaser at treasurer's sale a conveyance of his inceptive title, and hold the same until it ripens into a com- plete tax title." 2 This language is very broad, and probably would not be carried out by the court to the extent of giving title to one whose duty it was to have paid the taxes. In this case A. was under no obligation to pay the taxes for which the 1 Kirk V. St. Thomas' Church, 70 Iowa, 290 (1886); EUis v. Peck, 45 id. 112. 2 Cole i». Moore, 34 Ark. 582 (1879). « Arthurs ». King, 95 Pa. St. 172 (1882). 536 WHO MAY PURCHASE A TAX TITLE. § 608 land was sold ; if he had bought the tax title before taking the deed from the executor, he surely might have held under the tax deed, buying subsequently, as he supposed the right of redemption ought not to give him a worse title than he had before, and if he bought both the same day it would seem no more than just that he should hold under either title. Indeed, we can see no objection to a subsequent purchase of the tax title by one who has acquired the legal title subsequently to the tax sale, and who was under no obligation to pay the taxes, to the extent of sustaining his title if the supposed legal title fails. § 608. The right to treat the pnrchase as a payment does not belong to the purchaser, but to the owner or other interested party. In a suit for foreclosure for non-payment of taxes it was held that the purchase by the mortgagee at tax sale could not be forced on the mortgagor. He could accept it as a pay- ment in his interest if he chose. If not, he could repudiate it ; and if he did so the mortgagee could not have judgment against him for the taxes as amounts paid for him. Neither party to a mortgage can be suffered, against the will of the other, to buy at a tax sale, and thereby cut off the other's in- terest. But either may bid, as a stranger may, if the other makes no objection.^ A trust creditor whose debt is secured by a deed of trust may buy the land at a tax sale, instead of paying the taxes or redeeming ; and if he does so he will not be permitted to treat his purchase at the tax sale as a pay- ment or redemption without the consent of his creditor. The right to treat the transaction as a payment is that of the creditor only, and in this case neither can make such a claim as a right, for the purchaser was under no legal or moral obligation to pay the taxes, and was entirely capable of be- coming a purchaser.* 1 Maxfleld v. Willey, 46 Mich. 255 (1881). » Summers r. Kanawha County, 26 W. Va. 171, 172 (1885). 537 CHAPTER XIX. § 609. Sale to State. — In Alabama, when the State becomes a purchaser, the sum bid must include the county tax, with interest thereon and the penalties incurred; but the county cannot sue the State for this part of the bid, for the State may at any time take away the county's right to it. The State may intercept county taxes at any time before their col- lection. Municipalities are the creatures of the State.^ In Tennessee, this matter of priority is regulated by statute, city, county, and State taxes being a lien on the land from the time they become due and payable, and the proceeds of sale are distributed in accordance with the priority of these liens.^ § 610. Sale to County. — If the county commissioners bid in for the county for a sum greater than the taxes and costs, the county may refuse to ratify the purchase and hold the commissioners individually for the taxes and costs; but in any case the title of the former owner is divested by the sale. If he neglects to pay his taxes, the sale takes away his title, whether the purchase by the commissioners be for themselves or the county.* In Illinois, when land has been sold to a county for five successive years and not redeemed, the title vests at once and absolutely in the county.* In Kansas, a tax deed which recites a sale to the county as a competitive bidder is void on its face.* But the land must ® be struck off to the county if there are no bidders. But no deed can be 1 State V. Brewer, 64 Ala. 287 (1879). 2 Nashville v. Lee, 12 Lea, 452 (1883). » Russel I). Reed, 27 Pa. St. 169 (1856). ♦ Baldwin v. Ely, 66 Wis. 171 (1886). 6 Larkin v. Wilson, 28 Kan. 513 (1882) ; Babbitt v. Johnson, 15 id. 254 (1875); Norton v. Friend, 13 id. 532 (1874). 8 Guittard v. Commissioners Marshall Co., 4 Kan. 388 (1868). 538 SALE TO COUNTY. § 611 made to the county. It holds the certificates to be assigned to the first person willing to take them at a price fixed by law.i In the case of Norton v. Friend it was said : " There is nothing in the deed or in the evidence that shows or tends to show that the land could not have been sold to some other person for the same price, provided the treasurer had not made his said bid or offer. Hence we think that said sale and the tax deed founded thereon are both void." In Magill v. Martin ^ the court held to the same rule, that a county can only be an involuntary purchaser of what cannot be otherwise sold, and cannot make a bid ; and that although it is usually sufficient to make a tax deed in the form provided by the statute, yet when to follow that form is to recite an untruth and show an illegal sale, the form must be varied to suit the facts. The statutory form was intended for voluntary purchasers; and where the sale is to the county, the deed must be modified to show the conditions upon which a county can lawfully become a purchaser.^ § 611. Sale to caty. — A city cannot buy land at a tax sale, nor even bid in land sold for taxes due itself, without express authority from the legislature.* The same is true of a county^ or other municipal corporation. Where a city charter limits to fifty years for which lands could be sold to the city for taxes, and the city takes such laud for nine hundred years, the title is void ; but if the tax was lawful, the land-owner must pay the tax with interest as the condition of a decree in his favor.^ In another precisely similar case it was held that although the sale was invalid, yet a subsequent purchaser from the owner would be affected with notice of the sale by the record, and would take at the risk of a curative legis- lative act.'^ 1 Guittard v. Commissioners Marshall Co., 4 Kan. 388 (1868). " 14 Kan. 67 (1874). » See McCauslin v. MoGuire, 14 Kan. 234 (1875). * Logausport v. Humphrey, 84 Ind. 467 (1882) ; Champaign v. Harmon, 98 HI. 491 (1881). 6 Brack v. Broesigks, 18 Iowa, 393 (1865). « Baldwin ii. Elizabeth, 42 N. J. Eq. 11 (1886). ' In re Report of Commissioners of Adjustment, 10 A. Kep. 363 (N. J. 1887); 49 N. J. L. 488. 539 CHAPTER XX. OP SALES OP LAND FOB TAXES, UNDER THE CHABTEBS AND OBDI- NANCES OP MUNICIPAL AND OTHER COEPOBATIONS. § 612. Summary of the Subject. — No municipal or other corporation can tax except under power granted by the State, and its power is confined strictly within the limits of this grant as well as within the constitution and principles of justice controlling the taxing power in general.^ Power to tax does not include power to sell. The legislature may delegate the power of taxation to coi'porations unless the constitution limits the power, as in Illinois.^ One claiming under a cor- porate tax deed must prove ^ the existence of the corporation, except when this is judicially recognized, its authority to tax and to sell for taxes, and a strict compliance with the pro- visions of law governing the proceedings. In regard to the latter the same rules are enforced as in the case of State sales, with even greater strictness. There is no known instance of sustaining a litigated tax title derived from sale by a corpo- ration, municipal or private,* except where liberality in pre- suming regularity has been exercised in support of a long possession.^ § 613. Fo-wer of Municipal Corporations to taz and sell. — A municipal corporation possesses no authority to levy and collect taxes upon property situated within its corporate limits, unless under an express grant from the legislative power of the State. The power is in derogation of individual rights, and is narrowed to the strictest sane construction of the statute; and the power must be exercised according to the principles which control the exercise of the taxing power 1 § 613. " § 613. « § 617. * 618. « 621. 540 POWEK OF CORPOEATIONS. § 613 under the constitutioii,^ and in strict conformity to the mode and manner of levying and collecting the tax prescribed by the charter which constitutes their organic law.^ The right to tax does not imply the power to sell the land for taxes ; this must be expressly granted, otherwise the taxes become not a lien, but merely a debt to be recovered in assumpsit. A municipality takes no powers by implication imless abso- lutely necessary to carry into effect some power expressly delegated to it; though there may be no special limitation in charter, yet the power is limited by the object and law of the creation of the municipality, and can be exercised only for legitimate municipal purposes.* The power to tax is one of the highest attributes of sovereignty. It involves the right to take the private property of the citizen without his consent, and without other compensation than the promotion of the public good. Such interference with the natural right of ac- quisition and enjoyment guaranteed by the constitution can be justified only when public necessity clearly demands it. Being a sovereign power, it can be exercised by the general assembly only when delegated by the people in the funda- mental law; much less can it be exercised by a municipal corporation without a further unequivocal delegation by the legislative body.* And when the legislature grants that high power to another tribunal, it can only be exercised in strict conformity to the terms in which the power is granted ; and a departure in any material respect will be fatal to the attempt » Hope V. Deaderick, 8 Humph. (Tenn.) 1 ; Fitch v. Pinctard, 5 HI. 69. » Mack .,. Jones, 21 N. H. 393; DiUingham v. Snow, 5 Mass. 547; Williainsport v. Kent, 14 Ind. 306; Stetson v. Eempton, 18 Mass. 272. There is nothing in ch. 105, Laws of the 7th General Assembly (Rev. 1860, § 1144), defining who shall make tax deeds under sales for muni- cipal taxes, but this matter is left to the provisions of the several charters; the object of this statute was to give a uniform effect to the deeds made to the purchasers at sales for municipal taxes, and a like method for the foreclosure of the equily of redemption. Street v. Hughes, 20 Iowa, 131. 8 Foster v. Kenosha, 12 Wis. 616. * Mays r. Cincinnati, 1 Ohio St. 268, 273; Sharp v. Speir, 4 Hill (N. Y.), 76. 541 § 613 CORPORATION SALES. to exercise it ; ^ but municipal taxes are levied by virtue of the same general authority as the State and county taxes, and a sale by municipal authority is essentially a sale by State authority.^ The legislature have competent authority to dele- gate the power of taxation to municipal corporations for the purpose of enabling them to carry into effect the trust com- mitted to their charge.^ But the legislature cannot compel a municipal corporation to incur a debt without its consent, to issue its bonds against its will for the erection of a public park, or for any other improvement.* Power may be con- ferred, but compulsory use of it is an entirely different matter. § 5, Art. 9, Const, of HI., providing that "the corporate authorities of counties, townships, school districts, cities, towns, and villages may be vested with power to assess and collect taxes for corporate purposes," was held not only to limit local or corporate taxation to local or corporate purposes, but was also intended as a limitation upon the power of the legislature to grant the right of corporate or local taxation to any other persons than the corporate or local authorities of the municipality or district to be taxed, and that the right of taxation cannot be granted either to private persons or private corporations.^ So portions of a county not endowed by the act attempting to authorize the tax with any of the elements of a municipal corporation, being merely portions of the territory composing a county, cannot be authorized by the legislature to create a debt which 1 Campbell County Court Judge v. Taylor, 8 Bush (Ky.), 206. * Denike v. Rourke, 3 Bis. C. C. (U. S.) 39. ' New Orleans v. Turpin, 13 La. Ann. 56; Daily v. Swope, 47 Miss. 367; Bradley v. McAtee, 7 Bush (Ky.), 667; Osborne o. Mobile, 44 Ala. 493. * People, ex rel. Detroit Park Com., !'. Detroit, 28 Mich. 228; s. p. 29 id. 343; People, ex rel. Lincoln Park Cora., u. Chicago, 51 HI. 17; see also People, ex rel. South Park Com., v. Salomon, Id. 37; Hessler v. Drainage Com., 53 id. 105; Mills v. Charleton, 29 Wis. 400, 415. 5 Harward v. St. Clair, etc. Drain. Co., 51 Dl. 130; Gage v. Grsiham, 57 id. 144; People, ea; rel. Lincoln Park Com., o. Chicago, 51 id. 17; People, ex rel. Wider, c. Canty, 55 id. 33; Lovingston v. Wider, 53 id. 302; East St. Louis V. Witts, 59 id. 155; People, ex rel. South Park Com., v. Salo- mon, 51 id. 37; Hessler v. Drainage Com., 53 id. 105. 542 POWER OP C0KP0EATI0N8. § 614 must be paid by taxation.^ All lands and otlier property are held on the implied condition that they may be taxed equally for general and local purposes.^ § 614. The rule is thus laid down in Sharp v. Speir : ^ " A corporation must show a grant, either in terms or by necessary implication, for all the powers which it attempts to exercise ; and especially must this be done when it claims the right, by taxing or otherwise, to divest individuals of their property without their consent. The exercise of the corporate fran- chise, being restrictive of individual rights, cannot be extended beyond the letter and spirit of the act of incorporation. The power to sell is a high prerogative power." The power is a Ihnited one,* and must be sti-ictly construed and pursued.^ Thus, although the State may resort to summary proceedings to collect a tax, by imprisoning the body or selling the goods or lands of the delinquent, it is otherwise with a corporation unless there is an express grant in their charter.® Thus, like- wise, a grant to a city of " power to levy and collect a special tax " on lots for curbing, macadamizing, etc., does not include the power to sell and convey in case of the non-payment of the tax. Nor will such power be inferred from an express pro- vision in the charter to the effect that the collection of taxes provided for shall be enforced as may be provided for by ordi- nances of the city ; but the grant is not by reason of such silence nugatory, as the city may provide for the collection of the tax by due course of law in the institution of judicial pro- 1 Madison County Court v. People, 58 HI. 456. As to the delegation of this power by a de facto government, see O'Byrne v. Savannah, 41 Ga. 331. 2 Cheaney u. Hooser, 9 B. Mon. (Ky.) 330; Talbot v. Dent, Id. 526; Hope V. Deaderick, 8 Humph. (Tenn.) 1. 8 4 Hill (N. Y.), 76. * Canton West Sch. Dist. v. Merrills, 12 Conn. 437; Kemper v. Mc- Clelland's Lessee, 19 Ohio, 308, 324. 5 Nichol ». Nashville, 9 Humph. (Tenn.) 252; see Dean v. Madison, 9 Wis. 402; Drake ». Phillips, 40 111. 388; Louisville v. Bank of Ky., 3 Met. (Ky.) 148 ; Lott v. Ross, 38 Ala. 156 ; Knox v. Peterson, 21 Wis. 247. « See Ham v. Miller, 20 Iowa, 450; Alexander v. Helber, 35 Mo. 334; Mclnerny v. Keed, 23 Iowa, 410. 543 § 614 COBPOBATION SALES. ceedings.^ By the common law corporations cannot make a by-law to enforce the payment of taxes by warrant to distrain and sell the goods and lands of a party who has neglected to pay his dues. When the taxes are legally assessed they be- come a debt due to the corporation, and if not paid must be recovered in due course of law.^ An action of assumpsit is the appropriate remedy to recover the tax in all cases where the charter is silent as to the mode of collection.^ And where express power was conferred upon a town corporation to levy taxes and sell lands for the non-payment of them, but the charter was silent as to the power of the corporation to convey the land sold to the purchaser at the sale, it was held that the power of conveyance could not be exercised by the town : (1) Because a corporation can exercise no implied powers except those absolutely essential to the exercise of granted powers;* (2) Because such a power is in derogation of the common law ; and (3) The power to sell does not include the power to convey.^ This last point can hardly be considered ^ Merriam v. Moody's Ex., 25 Iowa, 163; see also Ham v. Miller, 20 id. 450. 'But in Haskel v. Burlington, 30 Iowa, 232, it was held that ch. Ill, p. 153, Laws of 1868, which confers upon cities not then pos- sessing it, power to sell personal and real property for delinquent taxes, applies as well to taxes delinquent before the act was passed as to those becoming delinquent thereafter ; and that thus construed said act is not unconstitutional as not being of uniform operation, for it afiects equally all cities in like situation ; nor as impairing the obligation of contracts, nor interfering with vested rights, for it pertains only to the remedy. 2 Bergen o. Clarkson, 6 N. J. L. 352. ° Baltimore v. Howard, 6 Har. & J. (Md.) 383; Dugan v. Baltimore, 1 Gill & J. (Md.) 499. * A municipal corporation possesses and can exercise the following powers, and none others: (1) Those granted in express words; (2) Those necessarily implied, or necessarily incident to the powers expressly granted ; (3) Those absolutely essential to the declared objects and purposes of the corporation; and any fair doubt as to the existence of a power is resolved against the corporation. Merriam ». Moody's Ex- ecutor's, 25 Iowa, 163, 170. In Knox v. Peterson, 21 Wis. 247, it was held that the powers of corporations in the sale and conveyance of land for taxes are only such as are expressly given by statute. 6 Doe d. Lemon v. Chunn, 1 Blackf. (Ind.) 336; but see Bisooe v. 644 POWER OP CORPORATIONS. § 615 a sane construction. Again, a municipal corporation has no authority, except by express grant, to exempt any property within its corporate limits from taxation.^ Such a power can neither be exercised by means of a general ordinance exempt- ing a particular class of property, nor by means of a stipula- tion in a grant or conveyance transferring a parcel of land owned by the corporation.^ Nor has a mimicipal corporation the power to declare that the collector's deed shaU be con- clusive or even prima facie evidence of a compliance with all the prerequisites of the ordinance providing for the sale of lots within the town or city limits for the non-payment of taxes due and unpaid thereon. The legislature alone pos- sesses the power to make and alter rules of evidence.^ § 615. Corporation taxes can in no sense be regarded as public taxes within the meaning of any general law of the State. They are local to all intents and purposes, and special in their character. Therefore no general law regulating the tasing power of the State at large can be construed in any given case as embracing taxes levied by such corporations. Upon this principle it was held in Shoalwater v. Armstrong * that a general statute declaring a tax deed made in pursuance of a sale for " public taxes " prima fade evidence of con- formity with the requisitions of the law, and authorizing the respective collectors to make a report of the delinquent list to and apply for a judgment thereon in the circuit or other court of their respective counties, did not apply to taxes assessed by and due to a municipal corporation. It is said to be " a principle of common justice that the same property should not be twice burdened for the same tax ; and consequently, in construing general powers bestowed on towns and cities to impose taxes, a construction ought not to be given which would subject the property of any individual or corporation to Conlter, 18 Ark. 423, where it is sud, arguendo, that the right to tax implies the right to sell. 1 Fitch V. Pinckard, 5 HI. 69; Mack v. Jones, 21 N. H. 393. » Ibid. » Fitch V. Pinckard, supra. * 9 Hnmph. (Tenn.) 217. vol.. 1. — 35 645 § 617 COEPOBATION SALES. double taxation, unless required by the express words of the statute, or by necessary implication." ^ § 616. Where, by charter, a municipal corporation is au- thorized to assess taxes " according to law," the general law regulating taxation is intended ; and the general law in force at the time of the assessment and collection of the tax is the law by which the corporation is to be controlled in the exer- cise of the power granted, and not the one in force at the time of the enactment of the charter. Such a construction ought not to be placed upon the charter as would prevent the corporation from participating in the improvements of the system of taxation which may be made from time to time by the laws of tlie land.^ The corporation possesses no power either to assess a tax not authorized by charter, or to change or modify the public laws of the land regulating the taxing power.3 And it is presumed that when the charter is silent as to the principles, mode, and manner of taxation, the analo- gies to be drawn from the general statutes of the State in relation to the taxing power ought to be adopted by the cor- poration in the execution of their local power of taxation.* Such are the general principles to be extracted from the adjudged cases relative to the nature, extent, and mode of exercising the taxing power by municipal corporations. § 617. Wliat the Claimant under a Municipal Taz Deed must prove. — In deducing title, under a sale for taxes, made in pursuance of the charter and ordinances of a city or town corporation, it is necessary for the purchaser, or those claim- ing under him, to prove (unless by charter the tax deed is laade prima facie evidence of title), (1) The existence of a corporation by evidence of the charter and its acceptance by the inhabitants.^ The charter may be proved by an exem- 1 Bank of Georgia v. Savannah, Dud. (6a.) 132, citing Salem Iron Co. V. Danvers, 10 Mass. 514; Amesbury Woollen, etc. Co. v. Amesbnry, 17 Mass. 461. 2 Ontario Bank v. Bunnell, 10 Wend. (N. T.) 186. ■ « Mack V. Jones, 21 N. H. 393. * Doe d. Lemon v. Chunn, 1 Blackf. (Ind.) 336; Mack c. Jones, 21 H. H. 393. s Notwithstanding the doctrine of the text, it is deemed that accept- 546 POWER OP CORPORATIONS. § 618 plification of it under the great seal of State, or the production of the printed statute book containing it ; or if by the charter it is made a public act, the courts will probably take judicial notice of it. The corporation records, showing an organiza- tion under, and acts done in pursuance of, the charter, will be evidence of its acceptance by the inhabitants ; ^ and, (2) A strict compliance with all the requirements of the charter and ordinances in force at the time the proceedings took place, and under which they purport to have been made.* What provisions of the charter and ordinances are to be re- garded as peremptory requirements depends upon the same general principles discussed in the other chapters of this work. If there is any difference between sales for taxes made under the general laws of the State, and those made in pursuance of the charter and ordinances of a municipal cor- poration, the strictness required in the latter is greater than in the former class. It may be added that no instance is known where a corporation tax sale has been maintaiued by the courts. § 618. Tax Sales by Private Corporations ; Iievy of Tax for a Fnrpose outside the Coiporate Authority. — There are in- stances of tax sales made under a power contained in the charter of a private corporation which it may be proper to notice in this connection. On April 15, 1803, the legislature ance of the charter or act of incorporation is unnecessary in the case of mnnicipal corporations, anless the act is expressly made conditional. Un- less the act otherwise provides, a nmnicipal corporation is legally in existence as soon as the act of incorporation goes into effect. See 1 DUl. Mnnicipal Corp. (2d ed.), § 23, and cases there cited. 1 Fitch K. Pinckard, 5 HI. 69. ' Fitch t. Knckard, 5 111. 69; Shoalwater r. Armstrong, 9 Hnmph. (Tenn.) 217; Doe d. Lemon v. Chonn, 1 Blackf. (Ind.) 336; Ronkendorff F. Taylor's Lessee, 4 Pet (U. S.) 349; Washington r. Pratt, 8 Wheat. (TJ. S.) 681, 686 ; Mason v. Fearson, 9 How. (U. S.) 248; Raybum r. Kuhl, 10 Io\ra, 92. A power to sell being derived from charter, an ordinance cannot affect the validity of a sale made according to directions of char- ter. Thompson v. Koe d. Carrol], 22 How. (U. S.) 422. It seems an assessment made pursuant to an ordinance is not invalid because the pre- siding officer of the council did not sign the ordinance. Blanchard v- Bissell, 11 Ohio St. 96. 547 § 618 COEPOBATION SALES. of Ohio incorporated "the proprietors of the half million acres of land lying south of Lake Erie, called sufferers' land," for the purpose of enabling the proprietors to extinguish the Indian title to their lands, to cause them to be surveyed, and to make partition among themselves. Along with other special powers conferred upon the corporation, the charter of Ohio provided " that to defray aU necessary expenses of said company in purchasing and in extinguishing the Indian claim of title to the land, surveying, locating, and making partition thereof, as aforesaid, and all other necessary expenses of said company, power be, and the same is hereby given to, and vested in, the said directors and their successors in office, to levy a tax or taxes (two thirds of the directors present agree- ing thereto) on said land, and have power to enforce the col- lection thereof." And it was further provided " that all sales of rights, or parts of rights, of any owner or proprietor in said half million acres of land, made by the collector, shall be good and valid, so as to secure an absolute title in the purchaser ; unless the said owner and proprietor shall redeem the same within six calendar months next after the sale thereof, by paying the taxes for which the said right or rights, or parts thereof, had been sold, with twelve per cent interest thereon, and costs of suit." It was also provided " that said directors shall have power and authority, and the same is hereby gi.ven to them and their successors, to do whatever shall to them appear necessary and proper to be done, for the well ordering and interest of said owners and proprietors, not contrary to the laws of the State." And it was further pro- vided " that supplies of money' which shall remain in the hands of the treasurer after the Indian title shall be extin- guished, and said land located, and partition thereof made, shall be used by said directors for the laying out and improv- ing the public roads in said tract, as this assembly shaU direct." The act contained no provision in favor of the rights of infants or femes covert. In 1806 the legislature of Ohio levied a tax upon the lands of this corporation and declared it a perpetual lien. On May 5, 1808, the directors assessed a tax upon each shareholder in the corporation, for the purpose 648 PRIVATE CORPORATIONS. § 619 of defraying the State tax, levied as aforesaid, and other necessary expenses of the corporation. § 619. In Beaty v. Knowler's Lessee ^ the lessors of the plaintiff in error were infant shareholders in the corporation aforesaid, and their interest in the lands of said corporation was sold, under the charter and vote of said corporation, to pay the assessment aforesaid. The defendant below claimed under this sale. The Circuit Court instructed the jury that the directors of the corporation had no power to assess said tax, and that the infant lessors were not concluded by such assessment. The jury found a verdict accordingly, and the defendant prosecuted a writ of error from the Supreme Court of the United States, where the judgment was affirmed. The court based their decision upon, these grounds : that the power to impose a tax on real estate and sell it, in case of failure to pay the tax, was a high prerogative, and never shonld be exercised where the right was doubtful ; and there was no express power to assess a tax for the purpose of dis- chai^ing that levied by the general law of the State ; that it coidd not be implied from the language of the charter, author- izing the levy of a tax, " to defray all necessary expenses of said company ; " on the contrary, it clearly appeared that it was not the intention of the legislature to look to the corpora- tion for the payment of the tax assessed under the general law, but to the land itself, for the law declared the tax a lien upon the land. Inasmuch as this case is the only one of any importance which illustrates the nature and extent of the tax- ing power conferred upon mere private corporations, it is deemed appropriate to set "forth the reasons of the court at large. Judge McLean delivered the opinion of the court in these words: "It is not contended, in this case, that this company could derive corporate power to do any act in Ohio in relation to the sufferers' land, under the statute of Connec- ticut. All their powers must be derived from the law of Ohio. This law, it is insisted, is a private act, not designed for public purposes, and consequently cannot affect the rights of any individual who did not assent to its provisions ; that 1 4 Pet. (D. S.) 152. 549 § 619 CORPORATION SALES. the provision declaring it to be a public act does not alter the principle, for the rights described under it are of a private nature, being limited to those who have an interest in the land ; and it is denied that any evidence of assent has been shown by the lessors of the plaintiff or their ancestor. Sev- eral authorities were cited, as having a bearing upon the objections thus stated. The names of the sufferers are pub- lished in the Connecticut act or resolution in 1792, with the amount allowed to each as his indemnity for losses sustained. In this act is found the name of the ancestor of the lessors of the plaintiff. His right descended to them, subject to the same conditions by which it was originally held. The pro- visions of the law of incorporation, that it should be consid- ered a public act, must 'be regarded in course of justice, and its enactments noticed without being specially pleaded, as would be necessary if the act were private. That a private act of incorporation cannot affect the right of individuals who do not assent to it, and that in this respect it is considered in the light of a contract, is a position too clear to admit of controversy. But in the present case this objection seems not to have, been made in the court below, where proofs of the assent, if necessary, might have been submitted to the jury. From the nature of the right asserted, and the circumstances under which it was originated, this court cannot doubt that the assent of the proprietors may be fairly presumed, both to the act of Connecticut and to that of Ohio. Rights have been protected and regulated under those laws, and to the provision of the latter are the claimants indebted, in a great degree, for the present value of the remainder of the land, which they still hold ; and, as has been well argued, if they participate in the benefits of the law, they can set up no exemption from its penalties. The main question in the case is, whether the directors have the power, under the act of incorporation, to assess a tax on each proprietor's share, to pay a tax to the State. That a corporation is strictly limited to the exercise of those powers which are specifically conferred on it will not be denied. The exercise of a corporate franchise, being re- strictive of individual rights, cannot be extended beyond the 550 PRIVATE CORPORATIONS. § 619 letter and spirit of the act of incorporation. In the second section of the act, power is given to tlie directors to extin- guish the Indian title, under the authority of the United States when obtained ; to survey and locate the land into townships, or otherwise to make partition ; and to defray all necessary expenses in carrying these objects into effect ; and to meet these and all ' other necessary expenses of said com- pany,' the directors are authorized to levy a tax or taxes on said land, and to enforce collection thereof. As the power to tax for the purpose of paying a tax to the State is not found among the enumerated powers of the directors, it must be derived, if it exists, under the words ' aU other necessary ex- penses- of said company;' or under the tenth section, which provides ' that the directors shall have the power to do what- ever to them shall appear necessary and proper to be done for the well ordering and interest of the proprietors, not con- trary to the laws of the State.' In the favor of this construc- tion it has been ingeniously argued that partition not having been made of the land, it could not be entered for taxation as required by the law of the State ; that the half million of acres must be entered on the duplicate of the collector as one tract, and that it would be impracticable for the collector to ascertain and collect from each proprietor his just proportion of the tax ; that many of the proprietors are non-residents, and that any proportion of them, being desirous of paying their part of the tax, would not be discharged by doing so, as a part of the entire tract, involving their interests, would be liable to be sold for any balance of the tax which remained unpaid. Whether partition was made of the land when the directors assessed the tax, does not appear, nor is it consid- ered a fact of much importance in the case. No argument drawn from convenience can enlarge the powers of the corpo- ration. Was the tax imposed a ' necessary expense of said company,' within the meaning of the act ? That these words would cover the expense of necessary E^nts to assess and collect a tax legitimately imposed by the directors, is clear, and also other incidental expenses, arising from carrying into effect the powers expressly given ; but do they invest the 551 § 619 COBPOEATION SALES. directors with a new and substantive power? If they do, how is the exercise of the power to be limited? Must it depend upon the discretion of the directors to determine all necessary expenses of the company? Ample provisions are found in the State law imposing a land tax, for the assess- ment and collection of the tax. A lien is held on all the tax- able land in the State, whether entered for taxation or not ; and if the tax should not be paid by a time specified, the col- lector was authorized, after giving notice, to sell the smallest part of the tract which would bring the amount of the tax. For the convenience of non-residents, district collectors were appointed, who were required to hold their offices at places named in the act. The collector for the district including the sufferers' land held his office at Warren, within what is called the reservation of Connecticut. The law imposing the tax operates upon the land in controversy, and raises a lien, the same as on any other taxable land in the State. It appears, therefore, that it was not the intention of the legislature to look to the corporation for the payment of the tax assessed under the law, but to the land, as in all other cases. And if any part of the land has been sold by the State, in which minors had an interest, under the law, they had a right to re- deem it within a year after they became of age. This is an important provision, and is not contained in the act of incor- poration. The agents of the State were paid for their services out of the tax collected ; those of the corporation by the com- pany. It would seem, therefore, that the tax collected by the State would be less expensive to the proprietors than if col- lected by their own agents, and less hazardous to their rights, as the interests of the minors were protected. If, therefore, the argument drawn from convenience could have any influ- ence, it could not operate favorably to the power of the di- rectors. The power to impose a tax on real estate, and to sell it where there is a failure to pay the tax, is a high prerogative, and should never be exercised when the right is doubtful. In the preamble to the Ohio act of incorporation there is a refer- ence to the Connecticut act, and to the cession of the Reserve, by that State, to the Union, and a statement that it was an- 552 PRIVATE CORPORATIONS. § 619 nesed to the State of Ohio. And as a reason for the passage of the act it is stated that said 'half million acres of land are now within the limits of Trumbull County, in said State, and are stiU subject to Indian claims of title ; wherefore to enable the owners and proprietors of said half million acres of laud to purchase and extinguish the Indian claim of title to the same (under the authority of the United States, when the same shall be obtained), to survey and locate the said land, and to make partition thereof to and among said owners and proprietors, in proportion .to the amount of land which is or shall be by them respectively owned,' etc. These are the objects to be accomplished by the act of incorporation, and which could not be attained by the individual efEorts of the proprietors. In the eleventh section of the act it is provided ' that supplies of money which shall remain in the hands of the treasurer, after the Indian title shall be extinguished, and said land located and partition thereof made, shall be used by said directors for the laying out and improving the public roads in said tract, as the legislature should direct.' From a careful inspection of the whole act, it clearly appears that the incorporation of the company was designed to enable the pro- prietors to accomplish specific objects, and that no more power was given than was considered necessary to attain these ob- jects. The words, ' aU necessary expenses of the company,' cannot be so construed as to enlarge the power to tax, which is given for specific purposes. A tax to the State is not a necessary expense of the company, within the meaning of the act. Such an expense can only result from the action of the company in the exercise of its corporate powers. The provi- sion in the tenth section, that the * directors shall have power to do whatever shall appear to them to be necessary and proper to be done, for the well ordering, of the interest of the proprietors, not contrary to the laws of the State,' was not intended to give unlimited power, but the exercise of a discre- tion within the scope of the authority conferred. If the words of this section are not to be restricted by the other provisions of the statute, but to be considered according to their literal import, they would vest in the directors a power over the 653 § 621 COEPORATION SALES. land, only limited by their discretion. They could dispose of the land and vest the proceeds in any manner which they might suppose would advance the interest of the proprietors. It is only necessafy to state this consequence, to show the danger of such a construction. The restriction, imposed in other parts of the statute, very clearly demonstrates that it was not the intention of the legislature to invest the directors with such a power. Upon a full view of the various provi- sions of the act of incorporation, the court do not find a power given to the directors to assess a tax, as has been done, in the case under consideration, to pay a tax to the State." § 620. Title invalid for Want of Proof of Advertisement of Sale. — The case of Thompson's Heirs' Lessee v. Gotham ^ involved the validity of a tax title derived from the same source as that litigated in the preceding case. The defendant, who set up the tax title, proved a legal levy of the tax, the appointment of a collector and his qualification, and also a deed from the collector which recited the charter of the corporation, the assessment of the tax, the default of the owner, the order of sale, the notice of sale, and the sale itself. The circuit judge charged the jury that the tax title was invalid. A verdict and judgment was thereupon rendered for the plaintiff. The defendant moved for a new trial, which motion was overruled by the Supreme Court upon the ground that there was no proof that the sale was advertised in conformity with the charter and ordinances of the corpo- ration ; that such notice was a prerequisite to the validity of the sale ; that the onus was upon the defendant to prove the fact; that the recital in the deed was not evidence in his favor. § 621. In Support of a long Possession Conrts are liberal in presuming Regularity; Early New England Town Sales. — There is another class of tax titles somewhat analogous to those derived under the charter of the corporators and shareholders in the " sufferers' tract." In the early settlement of the New England States it was usual for the legislatures of the several 1 9 Ohio, 170. 554 LONG POSSESSION. § 621 colonies to grant a township, or other large body of land, to a number of proprietors, or grantees, in fee, to hold as tenants in common. These tenants in common were created quasi corporations, with power to manage their common lands. They were authorized to assess taxes upon each share and collect the same, for the purpose of improving the estate and paying off incidental charges. Each share was liable for the tax assessed against its proprietor, and the corporators, or the major part of them, had power to sell and convey, through the agency of a committee or single officer appointed for the purpose, in case the proprietor, against whom the tax was assessed, proved delinquent. The modus operandi of the pro- ceeding was to warn a meeting of all the proprietors, under a warrant from the justice of the peace, or in some other man- ner, according to the particular statute under which the power was conferred, and the meeting voted a tax upon the whole tract held in common, and apportioned it according to the interest of each tenant ; notice was then given to pay the tax ; in case of default, the meeting appointed a committee or single person to seU and convey, first giving notice by a pub- lication in a newspaper or by posting in public places, and sometimes in both ways. Other provisions of an immaterial character were to be found in the laws under which the pro- ceeding took place. The courts adopted the same principles in testing the validity of these titles which have been applied in the construction of similar laws in other States. The strict rule was adopted, and the onus probandi cast upon the party claiming under the tax sale. However, after a great lapse of time it became difficult to prove the legality of the meetings which levied the tax and authorized the sale and conveyance, and the records of the sale were imperfectly kept ; and in support of a long possession the courts were liberal in construing the acts of the proprietors and those who sold and conveyed, and many presumptions were indulged in for the purpose of sustaining these ancient titles. . Where, however, the proceedings affirmatively appeared upon the face of the conveyance to be illegal, the sales were held void. This 655 § 621 COBPOBATION SALES. general statement, and a reference to the cases, is deemed sufficient for the information of all concerned in this class of titles.i 1 2 Dane Abr. Ch. 68, art. 4, § 5; Sullivan on Land Tiaes, 116, 121; Bott r. Perley, 11 Mass. 169; Farrar v. Eastman, 5 Me. 345; s. c. 10 id. 191; Porter o. Whitney, 1 id. 306; Innman v. Jackson, 4 id. 237; Farrar o. Perley, 7 id. 404; Wentworth v. Allen, 1 Tyler (Vt.), 226; Decker v. Freeman, 3 Me. 338. 556 CHAPTER XXL OP THE CERTIFICATE OP SALE. § 622. Snmmary of the Subject. — The document giyen to the purchaser is usually a certificate of sale,^ though in some . States a deed is given immediately, passing title at once on con- dition, or to take full effect at a future time.^ When a cer- tificate is given, it must be executed soon after sale,^ must con- tain the proper recitals as to date of sale, description of land, etc.,* must be properly signed, authenticated,^ and recorded.® The purchaser may assign his interest by conveying the land, or more perfectly by assigning the certificate,^ and the holder of the certificate is entitled to a deed when the time of redemp- tion is past,* and may have mandamus to compel the execution of a deed, unless the officer has a discretionary power in the matter,' In the case of sale to a county, however, a distinc- tion is sometimes made, a deed being issuable only when the certificate has been assigned to a private party .^ In some States a suit to foreclose the tax certificate may be brought instead of taking a deed.^" The effect of the certificate as evidence varies according to the statute.^ What rights in the land are carried to the purchaser by the sale and certifi- cate will be discussed in the chapter entitled " The Purchaser's Title." ■ § 623. Certificate. — When a sale is made, the officer usually executes Ewid delivers to the purchaser a certificate of the sale, which constitutes the evidence of the purchaser's right, and entitles him to a deed for the land sold, unless the sale is redeemed from by the owner within the time limited by law in 1 § 623. ^ § 624. » § 625. * § 626. « § 627. » § 628. "> § 629. ^ § 635 ; and see chapter on The Deed. 9 § 636. 1" § 637. " § 638. 557 § 626 OP THE CERTIFICATE OP SALE. that behalf. This is the case in Ohio, Illinois, Michigan, and Missouri,! and perhaps in other States. § 624. Deed. — In Connecticut, the statute required the collector, upon the sale of the land, " to give to the purchaser a deed of warranty thereof, to be lodged in the office of the town clerk where the land liesj to remain unrecorded twelve months ; and if the owner shall within twelve months from the time of the sale pay or tender to the purchaser, etc., the purchase-money and twelve per cent interest thereon, such deed shall be void, and shall be delivered up to the person paying or tendering the money," etc.^ In other States the officer, immediately upon the receipt of the purchase-money, is authorized to execute and deliver to the purchaser a deed conveying the land to him, which vests an absolute estate in the purchaser on condition that the owner does not redeem the same within the time prescribed by law. In all of these cases the purchaser acquires only a contingent interest in the estate purchased, liable to be defeated in the event of a re- demption ; and if no redemption is made, an absolute and indefeasible title becomes vested in him.' § 625. Time of Execution. — A certificate not executed till many years after the sale is without authority and of no effect.* § 626. Recitals of the Certificate. — The certificate of the tax collector should be dated, and the certificate of the auditor should show when the list of lands was received in his office ; but such omissions are not material, and do not vitiate the sale. In the absence of proof to the contrary, the several acts will be presumed to have been done at the proper time.^ If 1 Rice's Lessee v. White, 8 Ohio, 216; People, ex rel. Seaman, v. Ham- mond, 1 Dougl. (Mich.) 276; Beeds v. Morton, 9 Mo. 878; Brace v. Schuyler, 9 111. 221; Silliman v. Frye, 6 id. 664. The Act of Congress of June 7, 1862, contemplates the issuing of a certificate of sale, though the United States becomes the purchaser. Cooley t. O'Connor, 12 Wal. (U. S.) 391. ' Ives V. Lynn, 7 Conn. 505. » Scovil v. Kelsey, 46 HI. 344. * Stewart v. Minneapolis and St. L. Ry. Co., 31 N. W. 351 (Minn. 1887); 36 Minn. 355 ; Gilfillan v. Chatterton, 33 N. W. 35 (Minn. 1887). 6 Corbum ».. Crittenden, 62 Miss. 135 (1884). 558 RECITALS. § 628 the certificfite of sale fails to show on what day the sale was made, it is Toid,i and the title will not hold ; as where the statute directed sales to be made on the first Monday in July " and the next ensuing days," and the collector certified that the land was sold on the first Monday in July " and the next ensuing days," without specifying the particular day, the error was held fatal.^ Where a tax certificate shows on its face that distinct parcels were sold in gross, it is void ; but if the lots are contiguous, so that they might be used together, it will be presumed that the law was not violated.^ § 627. Signature. — A collector's certificate to a list of lands 'sold the State under a law which provides that such " list shall be certified under his hand to be correct," is not defective because his name is not subscribed thereto but ap- pears only in the body thereof.* The neglect or refusal of one of three forming a board of United States Tax Com- missioners to act, does not invalidate the action of the ma- jority, and a tax certificate signed by two is prima facie evidence of good title.^ § 628. Heoording the Certificate. — In Louisiana, a certifi- cate of sale must be registered to make the title good against subsequent innocent purchasers of the property.® Where the law requires the purchaser to record his certificate or lodge his deed in a particular oflBce, with the evident design of giving notice of the sale to the former owner, the requisition must be strictly complied with.'' The statute of Missouri authorized the officer making the sale to execute and deliver to the purchaser a certificate of the sale, and required the purchaser to cause it to be recorded ; and if the sale was not redeemed frotn within two years, the officer was then directed to deliver a deed to the purchaser, etc. In Reeds v. Morton ^ 1 Gilfillan v. Hobart, 35 Minn. 185 (1886). ' Bloomstein v. Brien, 3 Tenn. Ch. 566 (1875). » Sanborn v. Mueller, 35 N. W. 666 (Minn.). « Gibbs V. Dortcb, 62 Miss. 671 (1885). B Billings V. Stark, 15 Fla. 297 (1875). « Meyer v. Fountain, 34 La. Ann. 987 (1882). ^ Reeds v. Morton, 9 Mo. 878; Ives v. Lynn, 7 Conn. 505. 8 9 Mo. 878. 559 § 629 OP THE CEBTIPICATE OP SALE. the facts were, that the sale took place June 18, 1832, the certificate bore date June 20, 1832, but was not recorded until Jan. 13, 1836, and the deed was executed and re- corded June 28, 1834. The sale was held void. Scott, J. : " K the certificate was not recorded before the execution of the deed, it could hardly have been of any avail to record it afterwards. The recording of the deed answered all the purposes designed by a record of the certificate. Here, then, is a material act to be done by the purchaser, which he has failed to do. The owner of the land had two years within which he might have redeemed. Had the certificate of sale been seasonably placed on the record of deeds, might not some one have seen it and communicated the fact to the owner? Might not some rumor by that means have been spread abroad which would have reached his ears ? But the party has withheld this instrument from record, when he was required by law to place it there, and we can see that the owner of the land may have sustained an injury in con- sequence of this neglect. But according to the principles above asserted -(relative to the strictness required in this class of cases) we do not feel called upon to give reasons why this thing should have been done. He who wishes to obtain an estate worth thousands for less than ten dollars, and imder and by virtue of the law, is not to be permitted to ask why he should be required to do this or to do that. It is an answer, that it is required by law. Ma lex gcripta est. He claims by the law : then by that law let his pretensions be judged. But this provision was designed as one of the means of com- municating to the owner the fact that his land has been sold. The placing of it on record after the time for redemption ex- pired was a nugatory act; it should have been seasonably recorded, and the failure to do so renders it void, and by consequence the auditor's deed." § 629. Transfer of the Parchaser's Interest. — The purchaser can convey his interest by deed of the land,^ but a quitclaim from the purchaser is not such an assignment of the certifi- cate as to authorize the clerk under the Wisconsin statutes 1 § 630. 660 TRANSFER. § 631 to issue a tax deed from the county to the grantee in said quitclaim.^ Or the purchaser may in most if not in all States assign his original certificate by indorsement ; ^ and the assignee will have all the rights of the assignor ^ and no more,* except that a bona fide assignee without notice can hold against a prior grantee by deed from the purchaser, ^ or a prior assignee of a duplicate,® and except that an assign- ment to the owner of the land may merge the tax titled § 630. In Scovil v. Kelsey * it was held that " the pur- chaser at a tax sale legally held and conducted acquires an equitable interest in the land, which during the two years is represented by the right to the redemption money if paid, and a conveyance of the land will pass this equitable interest and the right to the money as completely as between the parties, as an assignment of the certificate." It was also said in this case that " if a deed were made to one person and the certificate to another, both innocent persons, the holder of the certificate may with some reason insist on a su- perior right lo the redemption money." A conveyance passes the lien of the grantor by virtue of his tax certificate.^ § 631. The certificate under the Iowa statutes is assign- able by indorsement, and carries the interest of the purchaser, so that a subsequent quitclaim deed executed by the pur- chaser conveys nothing.^" It is now necessary to record the assignment in the treasurer's ofiice in the registry of sales.^ A certificate of sale may be assigned by indorsement, and must be recorded not as an essential to the transfer, but to afford evidence to the treasurer as to the one entitled to a deed.^ In Wisconsin, an assignee of a tax certificate can transfer his right only by a written assignment indorsed on or attached to the certificate.^^ The county clerk or treas- 1 State V. Winn, 19 Wis. 323 (1865). « § 631. s § 632. * § 633. « § 630. * § 632. ' § 634. » 46 m. 344. 8 Thomas v. Stickle, 32 Iowa, 71 ; Lain t>. Shepardson, 23 Wis. 224, 228. w Smith V. Stephenson, 45 Iowa, 648 (1877). " Code, § 888. n Swan .,. Whaley, 35 N. W. 440 (Iowa, 1887). w Jackson v. Jacksonport, 56 Wis. 310 (1882); R. S. § 1140; Smith v. Todd, 55 Wis. 459. VOL. I. — 36 561 § 634 OP THE CERTIFICATE OP SALE. urer may assign tax certificates " by writing his name in blank on the back thereof . . . with his official character added." ^ This provision is satisfied by stamping his name and character thereon with intent to sigu.^ Writing or print- ing on the /ace of the certificate is sufficient under this law,* and a town cannot purchase or hold such certificates,* and a purchaser from the town acquires no title, and a t^ deed issued to such purchaser is void as against the original owner of the land.^ § 632. The assignment of the certificate of purchase at a tax sale vests in the assignee all the right and title acquired by the purchaser, and he cannot affect it by getting posses- sion of the certificate, erasing the assignment, and having a deed made to himself. Equity will not allow him to hold a title thus acquired ; ® and he who pays the money, not he in whose name the certificate of purchase is made, is the real purchaser, the other being merely an instrument.'' One who holds the original certificate as assignee is not affected by a duplicate certificate of which he had no notice, though the duplicate is also in the hand of an assignee.^ § 633. The assignee holds subject to all infirmities that affect the certificate in the hands of the tax purchaser.^ An assignment of the certificate of sale passes the rights of the assignor and no more, as against one claiming an interest in the land acquired from the assignor prior to such assignment. But a tax certificate is not a negotiable instrument, and the owner's interest does not pass by mere delivery of the certifi- cate, though it has been indorsed by the original purchaser.^" § 634. Where the legal owner of land acquires the tax cer- tificates and then quitclaims to another, all interest in the land » Wis. R. S. § 1140. 2 Dreutzer ». Smith, 56 Wis. 292 (1882). » Potts V. Cooley, 56 Wis. 45. * Jackson v. Jacksonport, 56 Wis. 310 ; Eaton v. Manitowoc, 44 id. 489. « Dreutzer r. Smith, 56 Wis. 292 (1882). 8 Bird V. Jones, 37 Ark. 200 (1881). T Lloyd V. Bunce, 41 Iowa, 670 (1875). « Griswold v. Wilson, 36 Iowa, 156 (1872). » Light v. West, 42 Iowa, 141 (1875) ; Watson r. Phelps, 40 id. 482. w Horn v. Garry, 49 Wis. 469 (1880). 562 TRANSFER. § 635 by virtue of the tax certificates is merged in his legal title and passes with it. The lands were practically redeemed when the certificates passed to the owner.^ And this is so even where the assignee of the certificate was not the owner of the land at the time of the sale, but acquired the title sub- sequently. And where land was sold for the taxes of 1869, and the taxes for several years preceding 1869 were delinquent, but by mistake omitted, it was held tliat when the tax certifi- cate came into the hands of the owner of the land, who came by the legal title after the tax sale, but before three years had expired after the sale, the tax title was extinguished, and the land could be held for the prior delinquent taxes.^ § 635. Right to a Deed ; Mandamus. — The certificate vests such an interest in the purchaser that when the time fixed for redemption has expired, and the officer improperly refuses to clothe the purchaser with the legal title, a mandamus will be awarded at the instance of the purchaser, to compel the execution of a deed.' The owner of a valid certificate of a sale of land for taxes, to whom a deed fatally defective in form has been issued, and who has never been in actual pos- session of the land, may compel the execution of a proper deed by mandamus.* And it is no defence to such an applica- tion on the part of the assignee of the certificate, that there was ho other proof of an assignment than an indorsement of tlie name and official title of the person who was clerk at the time of the alleged assignment, such officer being the proper person to make the assignment, or that the certificate after assignment in blank had been transferred to a town or city which had no power to purchase or sell such certificates, and came to the plaintiff from such town or city, or that the certificate is defective in omitting the words " according to the facts," the clerk having no right to insist upon these objections, even if good in themselves, which is doubtful, » Bennet v. Keehn, 57 Wis. 587 (1883). ' Bowman v. Eckstien, 46 Iowa, 585 (1877); citing Shoemaker v. Lacey, 38 id. 277; Stears v. HoUenbeck, Id. 550; Smith r. Lewis, 20 Wis. 370. » Maxcy v. Clabaugh, 6 111. 26. * State V. Winn, 19 Wis. 304; Clippinger v. Toiler, 10 Kan. 377. 563 § 636 OP THE CEETIFICATE OP SALE. especially after he has received and cancelled the certifi- cates.^ But all legal fees which have accrued since the issue of the certificate must be paid before the holder is entitled to a deed.2 Under the Wisconsin statute of 1854, ch. 66, or of 1859, ch. 22, the purchaser was entitled to a deed at the ex- piration of three years from the sale in all cases where the land remained then unredeemed, although the lands of minora, etc., were subject to redemption after the delivery of the deed.^ Sess. Laws of Michigan, 1843, p. 81, § 69, authorizing the auditor-general, if he shall discover before sale or conveyance of lands that on account of irregular assessments, or for any other cause, any of said lands ought not to be sold or conveyed, to forbear to sell, or to withhold a conveyance after sale, as the case may be, confers upon him judicial powers, into the proper exercise of which the court cannot inquire on motion for a mandamus. This writ will only be granted to compel the performance of a ministerial act not dependent upon the exercise of judicial discretion, in the absence of an effectual legal remedy.* In most of the States the certificate of pur- chase is made assignable in law, and the ofl&cer authorized to convey is directed to execute and deliver the deed to the assignee. But a quitclaim deed of the land from the pur- chaser at a tax sale is not such an assignment of the cer- tificate as to authorize the issue of a deed to the grantee in such deed.® And a suit in equity to compel the county clerk to execute a tax deed to a supposed assignee of the certificate, when the supposed assignors are not brought into court, and no valid assignment of the certificate has ever been made, cannot be maintained.® § 636. Certificate running to a County. — In Kansas, a dis- tinction is made by the law as to the rights of individuals and of counties purchasing lands for taxes, in that the latter are allowed to bid only in the absence of other purchasers ; and 1 State ». Winn, 19 Wis. 304; Clippinger ». Tuller, 10 Kan. 377. « White V. Strahl, 17 Wis. 146. » Wright v. Wing, 18 Wis. 45. * People V. Adam, Auditor- General, 3 Mich. 427. 6 State V. Winn, 19 Wis. 304; Clippinger v. Tuller, 10 Kan. 377. * Clippinger v. Taller, supra, 564 CEETIFICATE TO COUNTY. § 637 in that case to bid becomes an absolute duty, and the certifi- cates of sale to the county are subject to purchase by any applicant at a fixed price. Sec. 10, ch. 198 (Comp. L. 877), providing for making tax deeds due on certificates of sale, applies only to cases where the certificates are in the hands of individuals ; and a tax deed executed to a county as the holder of a certificate is void.^ And a tax deed so executed to the county being unauthorized and void cannot operate to prevent the treasurer from assigning such certificates of sale, although the treasurer has delivered the certificate to the county clerk on the execution of the deed ; and the treasurer may on the relation of an individual tendering to him the amount of taxes, penalty, interest, and costs, be compelled by mandamus to assign to him such certificates issued to the county.* § 637. Forecloaare of the Certificate. — The Revised Statutes of Wisconsin, § 1182, prohibit the issuing of a tax deed after six years from the sale, and § 1175 requires three months' notice of the application for a deed ; § 1181 provides that the holder of a certificate may at any time after three years from its date, and before he is barred from taking a deed, bring suit to foreclose the ceiiificate in lieu of taking a deed. Under these provisions it is held that suit begun four days before the expiration of the six years is too late to bring the suit* A biU against certain tracts of land and the uTiknown oioners thereof to foreclose the right to redeem is good.* In an action to foreclose a tax certificate it is not necessary to set out the proceedings antecedent to the certificate, nor to allege that no proceedings have been instituted at law for the same purpose.^ The defendant in an action to foreclose a 1 Gruittard Township o. Marshall County Com., 4 Kan. 388 ; State, ex rel. Brumbaugh, v. Magill, Id. 415; see also Tarr v. Haughey, 5 id. 625, 634. ' State V. Magill, supra ; see also Tarr v. Haughey, supra, which was a case of mandamus to compel the issue of a certificate of redemption to the owner under nearly similar circumstances. » Goffe V. Bond, 34 N. W. 236 (Wis. 1887); 69 Wis. 366. * Fuller V. Unknown Owners, 9 Iowa, 431 (1859). 6 Durbin v. Platto, 47 AVis. 484 (1879). 565 § 639 OP THE CEETIPICATE OP SALE. tax certificate cannot avail himself of irregularities not going to the " validity of the assessment and affecting the ground- work of the tax," such for example as an assessment of several government divisions together.^ In a suit to foreclose a tax title a failure to state in the affidavit for publication the facts showing diligence in seeking to discover the name and residence of the owner would be good cause of reversal on appeal ; yet such failure does not render the decree void when collaterally attacked.^ § 638. The Certificate £ks Evidence. — It is prima facie evi- dence of title in the purchaser, and may be made prima facie evidence of regularity in the proceedings,^ or even conclusive evidence, except as to essentials with which the legislature itself could not dispense.* The record of sale will as to the ' manner of sale prevail over recitals in the certificate. As to such matters the deed is conclusive; wherefore the memo- randum of the treasurer's adjournment of the sale cannot be received to contradict or render invalid the tax deed.^ § 639. Prima Facie Evidence. — The certificate of sale of lands by the United States is prima facie evidence of title in the purchaser. In Florida, no estate of freehold can be passed except by deed or will ; so that an assignment of the certifi- cate of sale does not convey any title. When the assignee produces the certificate, he produces evidence not of his own title, but of that of the purchaser. The assignee may, how- ever, under the Act of Congress of March 3, 1865, obtain a patent from the President of the United States that will in- vest him with title.^ In Wisconsin, a tax certificate is prima facie evidence of the regularity of all prior proceedings and of the liability of the land.'^ The Tennessee act of 1844, ch. 92, § 1, giving effect to a sheriff's deed, does not give any special force to a certificate of sale. Such certificate on a bill filed to set up a tax sale must be accompanied by proof 1 Pier V. Prouty, 67 "Wis. 219 (1886). » Little V. Chambers, 27 Iowa, 522 (1869). » § 639. * § 640. ' Clark V. Thompson, 37 Iowa, 536 (1873). • Billings V. MoDermott, 15 Fla. 63, 64 (1875). 1 Manseau v. Edwards, 53 Wis. 457 (1881). 666 CERTIFICATE AS EVIDENCE. § 640 of all the requirements, to constitute a valid sale.^ Under the Act of Congress of Feb. 6, 1863, the tax-sale certificate is prima facie evidence of all requisite antecedent facts, and can only be impeached by showing that the lands were not subject to the tax, or that it had been paid before the sale, or that the land had been redeemed ; and the act covers a certi- ficate in which the United States is the purchaser.^ Such legislation, making the certificate or deed ^rma/acie evidence of title, is clearly within the power of the legislature.^ A sheriff's certificate of sale for non-payment of taxes under 2 Rev. Sts. of N. Y., 379, § 44, is presumptive evidence only of the 1[acts therein contained ; and such certificate can legally contain only the facts required by statute.* § 640; The Legislature cannot make the Certificate conclu- sive of Essentials. — A law enacting that the " certificate shall be received in all courts and places as prima facie evidence of the regularity and validity of the sale, and of the title of the purchaser under the same," and "that the certificate shall only be affected as evidence of the regularity and validity of sale by establishing the fact that said property was not sub- ject to taxes, or that the taxes had been paid previous to sale, or that the property had been redeemed," must be construed so as not to exclude proof that no tax was legally assessed. If the intention of Congress was to make a certificate valid conclusively, though the listing, or valuation, or apportionment, or notice, or any other essential were lacking or irregular, " we have no hesitation in declaring it of no force whatever." Such a law would be monstrous.* 1 Quinby v. North American Coal,- etc. Co., 2Heisk. (Tenn.) 596. « De Treville v. Smalls, 98 U. S. 517 (1878) ; Cooley i'. O'Connor, 12 Wal. (U. S.) 391; Keely o. Sanders, 99 U. S. 441 (1878); Sheny v. McKinley, 99 U. S. 496. » Ibid. ; Sams v. King, 18 Fla. 557 (1882). 4 Overing o. Foots, 43 N. Y. 290. s Dickerson o. Aeosta, 15 Fla. 621 (1876). 667 CHAPTEE XXn. EETUEN OP SALE AND RECORD OF PE0CEEDINGS.1 § 641. Conditions sabsequent to the sale must be fulfilled, as well as those precedent, in order to a valid title. We are not now treating of conditions subsequent annexed to estates at common law, on the breach or non-performance of which an estate which has already vested may be defeated ; but of those acts which the law requires to be performed after the sale has been made, in order to vest the estate in the purchaser. In the language of Judge Cowen, these conditions^ " if looked to in their chronological order, are indeed conditions subsequent ; but for the purpose of giving effect to the deed they are conditions precedent, to all intents and purposes, and without showing affirmatively the literal performance of them, the deed is mere waste-paper." ^ The statutes of several of the States require either that the ministerial officers of the law or the purchaser shall, within a limited time after the sale has taken place, perform certain duties or acts intended for the protection of the former owner, the non-performance of which invalidates the sale. The duties of this character most com- monly enjoined upon the officers are the return^ of the pro- ceedings anterior to and at the time of the sale, and the deposit or record * of the same ; and those imposed upon the purchaser are the filing of a surplus bond,^ the record of his certificate of purchase,^ and the giving of a notice to redeem,' actual or constructive, to the former owner. The location or survey of the land may be imposed on the officers or on the pur- chaser, or may be accomplished by a statutory rule.* Sometimes 1 See § 554. » Bush v. Davison, 16 Wend. (N. Y.) 550, 554. a § 642. * §§ 653, 657. « § 660. « § 628. » § 678. 8 § 668. 568 CONDITIONS SUBSEQUENT. § 641 judicial confinnation of the sale is made a condition subsequent.' A distinction has been made in some cases between conditions precedent to sale and those subsequent, in regard to the strict- ness required when the duty of performance rests upon the ofi&cers of the law. The rule that all provisions having a semblance of benefit to the owner must be strictly conformed, which is uniformly applied to matters preceding sale, seems to be lost sight of in the cases referred to. -To a discussion of this distinction the remainder of this section is devoted. In reviewing the decisions of the courts in relation to conditions subsequent to the tax sale, it will be observed that they uni- formly require every condition, the performance of which is imposed upon the purchaser himself, to be literally performed ; while on the other hand, where the duty of performing the condition is cast upon the oificers of the law, and they neglect to comply with it, some of the decisions assert the doctrine that this failure on the part of the officer ought not to invali- date the title of the purchaser. Such, as will be shown, is the rule in Ohio ^ in reference to the return of the sale ; and in Pennsylvania,^ in relation to the filing of the surplus bond. It is contended that there is a manifest distinction between the neglect of the purchaser and that of the officer. This distinc- tion thus contended for is most strikingly illustrated by the decisions of the Pennsylvania courts in regard to the surplus bond. The purchaser is bound, at the peril of his title, to execute and deliver to the treasurer a bond at the time and in the manner prescribed by law. If he fails to do so, this fact alone furnishes conclusive evidence of an abandonment of his purchase. But the duty of filing the bond in the office of the prothonotary being imposed upon the treasurer who made the sale, and who was required to receive the bond and cause it to be filed, the omission of this duty ought not to affect the title of the purchaser. It is impossible to perceive any just distinction between the performance of a condition precedent and one which is subsequent to the sale, in regard to their effect upon the purchaser's title. He is bound at his peril to see that all of the requirements have been faithfully 1 § 674. » § 647. » § 664. 569 § 641 EETUBN OF SALE AND EECOED OP PROCEEDINGS. complied with by the officers intrusted with the execution of the power prior to the sale, and before he has acquired any rights whatever ; and it would seem that when his right has once attached, upon his bid and the payment of the purchase- money, greater vigilance is imposed upon him than before, in order to consummate and protect his title to tlie property. A still stronger reason is that after an inchoate right has once vested in him by a purchase, the law gives him ample remedy to protect himself from the consequences of the neglect of the officer to perform a duty which the law exacted of the latter. He may compel the specific execution of the duty by a man- damus, or seek his remedy by an action upon the case for the non-feasance. The title being regarded as strieti juris, he is bound to see that all of the requirements of the law are com- plied with. The condition, though subsequent in point of time, is nevertheless regarded in judgment of law as prece- dent to the acquisition of the title. The law authorizes a sale and conveyance upon certain prescribed conditions ; the officer acting under a special authority, the purchaser being bound to see that he conforms to it, it is difficult to discern why the conditions upon which the deed depends should not be as faithfully performed as those conditions which are required to precede the sale. In the last instance tiie purchaser is bound to see that the law is strictly complied with, and no right having vested in him prior to the sale, the law arms him with no remedy against the officer for any neglect of his duty. But after the sale he has a remedy, and as he does not become entitled to a deed until the conditions are performed according to the requirements of the law, he is chargeable with personal negligence if he fails to pursue that remedy and compel the performance of the official duty upon which the validity of his title is made to depend. If it is beneficial to the owner that the subsequent conditions should be performed, and they are not, it is an injury to him, which, according to the acknowl- edged principles of justice, ought to invalidate the sale. It may be Called a formality ; but where the formality prescribed is founded on natural equity, it is said to be substantial, and its omission carries with it nullity of the act. It is of the essence 570 CONDITIONS SUBSEQUENT. § 641 of justice and natural equity, that when a forced sale of prop- erty is made under statutes, all formalities which have the semblance of benefit to the owner should be rigidly complied with. This class of sales cannot be likened to the sale of a sheriff, and the effect of his neglect to file or record the cer- tificate of his sale. There the owner of the land is regarded as in court until the satisfaction of the judgment, and usually has actual notice of the levy. The authority to sell and con- vey depends alone upon the judgment and execution. The purchaser is bound to look no further. No irregularity of the oflBcer, either in advertising or selling the land, or in the per- formance of any duty imposed upon him subsequent to the sale, can affect the title of the purchaser. But the power of the oflBcer in tax sales depends upon a series of acts which are required by law to precede and follow the sale ; each and every step, from the listing of the land for taxation to the consummation of the title by the delivery of a deed to the purchaser, is a separate and independent fact. All of these facts, fi'om the beginning to the end of the proceeding, must exist ; and if any material link in the chain of title be wanting, the whole falls to the ground for want of suflBcient authority to support it. Testing the Ohio and Pennsylvania cases by these principles, — and the New England decisions in relation to the return, deposit, and record of the proceedings of the oflBcer who made the sale, — they cannot be sustained. The return of sale in the Ohio case, as has already been shown, was beneficial as well to the piirchaser as the OAvner, besides being the only guide of the oflBcer in the redemption or con- veyance of the land. The surplus bond required by the laws of Pennsylvania constituted a lien upon the land purchased in favor of the former owner of the estate. The filing of it in the oflSce of the prothonotary, where the evidence of judgment and mechanics' liens were preserved, was intended to give notice to subsequent purchasers and creditors, and was there- fore beneficial to them as well as to the owner. In conclusion, to use the language of one of the courts, " It is easier for the purchaser to see that the duty is performed than it is for a judge to assign reasons why it may be safely omitted." 571 § 642 EETUEN OP SALE AND EECOED OP PE0CEEDING3. § 642. Return of Sale. — Where the law requires the officer who made the sale to return a history of his proceedings, it must be done at the time and in the manner prescribed, or the sale is invalid.^ As where the statute required the sheriff, at the second term next succeeding the term when returns are made of land to be sold, to return a list of the tracts actu- ally sold, a failure to comply with this requirement renders the sale invalid.^ But it has been held that the sheriff cannot invalidate his sale by subsequently neglecting to leave his papers with the clerk of the court.^ In Mississippi, Justice Handy held a tax deed void because the list of lands sold to the State was not returned by the collector to the clerk of the board of police until one week after the day named in the statute for its return, and that, too, though the statute pro- vided " that the list . . . when filed should be certified to the auditor, and when filed with the auditor shall vest a title to the lands in the State, which shall be impeachable only on proof that the taxes for non-payment whereof the said lands were returned forfeited had been in fact paid to the collector before the return of said list by him to the board of police," etc. The argument was that the statute just quoted applied only where all proceedings were regular; but exactly what effect it would have, what good it would do, where everything was regular, is not apparent.* This decision is in a very different spirit from the dissent of the same judge in Dunn v. Winston.5 The return must show the description of the land, the name of the purchaser, the time of the sale, and all other particulars connected with it which the law requires. The object of this legislation is to perpetuate the facts attending the transaction, to enable the owner to learn from the record the fact that his land has been sold, and to guide the officer intrusted with the power in the execution and delivery of a conveyance to the purchaser. It is neither safe nor expedient to leave the title to real estate to depend, in any case, " upon 1 See Lane v. James, 25 Vt. 481; Green v. Craft, 28 Miss. 70. 2 Doe d. Taylor v. Allen, 67 N. C. 346. 8 Wells V. Jackson Iron Co., 47 N. H. 235, 258; Cahoon v. Coe, 52 id. 518, 526. * Hopkins v. Sandridge, 31 Miss. 668. * 31 Miss. 135. 572 RETURN OP SALE. § 644 the uncertain and fading memory of mortal man ; " and it is not the policy of the law to do so. By the return, the owner is always enabled, by going to the proper officer, to ascertain with certainty the fact of sale, and protect his interest in the premises by a redemption, or at his peril contest the validity of the proceedings. And the officer intrusted with the power of making the conveyance is enabled to ascertain the descrip- tion of the laud, the amount of the bid, the quantity sold, the name of the purchaser, and every other fact which the law requires to be stated in the deed. § 643. The return of sale, in this class of cases, is not analogous to the return upon an execution, and stands upon an entirely different footing. There the authority of the officer is derived from the judgment and execution, and no neglect in advertising, no irregularity in the sale or subse- quent proceedings, can defeat the title of the purchaser. The officer may justify, and the purchaser acquire, a title under an execution, although it is never returned. If the power once existed, it is immaterial what becomes of the evidence of it. Such are the principles which govern the sales of sheriffs under executions.^ It is very different as regards the returns of collectors under the revenue laws. There are no parties to the proceeding but the State, officer, and purchaser. The owner is neither a party nor privy. The proceeding is against his will, in hostility to his rights, and for the purpose of sub- verting his title. The officer is not his agent, and has no power to bind him, except so far as he pursues the imperative provisions of the law. The officer acts at his peril in selling and making his return, and the owner in determining whether he will redeem, or contest the title of the purchaser, as shown by the return. § 644. The return is essential to enable the owner to deter- mine upon his course of action, and as it is beneficial to him that a return should be made, that return becomes an impor- tant prerequisite, and unless it is made within the time and in the mode prescribed by law, no title can pass to the pur- 1 4 Wheat. (U. S.) 503; 2 Bin. (Pa.); I'Cow. (N.T.); Cheasley v. Barnes, 10 East, 73; Bealls v. Guernsey, 8 Johns. (N. T.) 52. 573 § 645 EETUEN OP SALE AND RECORD OP PROCEEDINGS. chaser at the sale. Besides, the proceeding is strieti juris, and upon general principles the law gives an action against the officer for making a false return, and unless that return is made the owner is remediless in the premises. Again, there are no other means provided for giving to the owner official information of the fact of sale, and the particulars connected with it, except in those States where a register of the sale is made and kept by the officer in whom the power of sale is vested, or by his legal assistant. § 645. The Illinois statute of Feb. 27, 1833, requires the sale to be made at the time and place designated by the clerk of the county commissioners' court, assisted by the sheriff as auctioneer, and directs the clerk to " keep a register of such sales, in a book to be provided by him for that pur- pose, in which he shall enter each tract of land exposed to sale by the sheriff, as particularly as described in the adver- tisement, etc., stating the precise quantity of each tract sold, to whom sold, and the amount of the proceeds of such sale, leaving at the end of each line three columns in blank, of sufficient space to insert the names of persons who may re- deem such land, the date of redemption, and the amount of the redemption money," ^ and transmit to the auditor of State a transcript of the same.^ And under the act of Feb. 26, 1839, where the sale is made by the sheriff, aided by the clerk, similar duties are imposed upon the latter relative to the keeping of a registry and the making of a return of the sale.8 It is evident that the registry and return are of im- portance to the former owner and purchaser, and also to the officer who executes the deed, and through whom a redemp- tion is effected. By reference to the register the owner can be informed as to the time when the sale was made, the amount for which the land sold, who made the sale, and when and where it was made, the quantity of his land sold, and every other fact necessary to enable him to redeem, or contest the regularity of the proceedings. On inspection, the pur- chaser can see whether the sale has been redeemed from, 1 Laws 1833, p. 530, § 6. a Laws 1823, § 7. 8 Laws 1838, 1839, p. 15, § 36. 574 RETURN OP SALE. § 646 when and by whom it was effected, and the amount of the redemption money paid to the officer; thus ascertaining the legality of the transaction, and the extent of the officer's liability to him. The registry, or return, is also the guide of the officer when he executes his deed or the owner applies to redeem, and when the purchaser calls upon him for the pay- ment of the redemption money. And under these statutes the transcript of the sale, directed to be returned to the auditor, was evidently intended for the benefit of non-resident owners, by giving to them additional means of informing themselves of the fact of sale, and the particulars of it. In every view of the subject it is manifest that the return, or a registry of the sale, is beneficial to all parties in interest, and therefore becomes a substantial prerequisite to the validity of the purchaser's title. § 646. The statute of Maine required the collector to make return of " his particular doings in the sale " to the town treasurer within thirty days after the sale. Under this statute it has been held that unless the return is made within the time limited, the title of the purchaser cannot be sus- tained.^ In this case the return did not designate the land sold, and the court held that even if made in the time pre- scribed, it was void for want of a specification of the land ; " the owner could not ascertain from it whether any, or what land of his had been sold." Under the statute of New Hamp- shire it was held that the return must show that the sale was made to the highest bidder. The Maine statute made it the duty of the collector " to return to the town clerk his particu- lar doings in the sale of unimproved lands of non-resident proprietors within thirty days after the day of sale." In Shimmin v. Inman ^ the return was in this manner : — HowLAND, Feb. 6, 1836. Charles Davis bought of Daniel Wood, collector, lots of land as follows, namely: — 1 Andrews v. Senter, 32 Me. 394; Pinkham ». Morang, 40 id. 587; Lane v. James, 25 Vt. 481. And in Maine, if the whole tract is sold, the return should state that it was necessary to sell the whole or the sale is not valid. Lovejoy v. Lunt, 48 Me. 377. ^ 26 Me. 238. 575 § 647 RETURN OP SALE AND RECORD OP PROCEEDINGS. Waterconrae, No. of the Lota. Bange. No. of Acres. Taxes and Chaigea On Penobscot River. 16, 17, 18 .... 230 $5.52 Daniel Wood, Collector of Howlaiidfor the year 1835. This return was held void because the description of the land was indefinite. By the court : " The soundness of the ai'gument cannot be admitted, that the neglect of the col- lector to do a subsequent act should not prejudice the title of the purchaser ; for his title is made to depend upon proof of a compliance by the collector with the requisitions of law." § 647. The only authority opposed to this doctrine is that of Hollister's Lessee v. Bennett.^ The statute of Ohio provided that after making the sale the collector should, on or before the first Monday in January then next following, ti'ansmit to the auditor of the county " a list of all lots or parts thereof sold, also the purchaser's name," etc. A further provision was, that the collector should give a certificate of sale, " and at any time thereafter make a deed to the purchaser." The sale and deed were made on the same day. There was no evi- dence as to whether a return was or was not made. By the court: "Whether this return was made in the present case we know not, as there is no evidence upon the point. It is not necessary, however, that it should be done immediately after the sale. If it be made on the first Monday of January next succeeding, it is sufficient. Before this time a certificate of purchase must have been issued, and it may be that a deed has been executed. In fact, in the case before the court the deed was executed on the 19th day of December, the very day of sale, which, if the proceedings hitherto had been in con- formity with law, vested a title in the grantee ; and it would be rather extraordinary to hold that the title could be divested by the failure of the collector to do an act which he was sub- sequently bound to perform." » 9 Ohio, 83, 91. 576 EETUEN OF SALE. § 651 § 649. The Conmecticut statute required the collector " to give to the purchaser a deed of warranty thereof to be lodged in the office of the town clerk where the land lies, tiiere to remain unrecorded twelve months; and if the owner shall within twelve months from the time of sale pay or tender to the purchaser, etc., the purchase-money and twelve per cent interest, such deed shall be void, and shall be delivered up to the person paying or tendering the money," etc. In Ives v. Lynn ^ the land was sold July 29, 1822, and the deed was not executed until April 1, 1826. The proceedings were held void. By the court : " In order to carry the whole law into effect, the deed must be executed with all convenient speed after the sale, and lodged with the tewn clerk, otherwise the right of redemption cannot, or at least may not, be exercised for defi- ciency of notice. Neitiier the owner of the land, nor a pur- chaser, mor^gee, or creditor is bound to look anywhere but at the town clerk's office to get the requisite information of the facts in order to decide on the necessity or propriety of redeeming the estate sold. The deed in question was not exe- cuted imtil nearly four years after the sale of the land by the collector. The validity of the deed depending on a positive law not complied with, it is undoubtedly void." § 650. The xtatvie of Vermont provided that " every col- lector shall, within thirty days after completing the sale, ete., cause his proceedings to be recorded in the proper office for the recording of deeds." Where there was a failure on the part of the collector to perform this duty, the sale was held void.* So, where the sale was completed July 31, 1789, and the proceedings were not lodged until March 4, 1800.^ § 651. The same doctrine weis reaffirmed in Taylor v. French,* where the facts were that all the lands upon the list were sold Aug. 24, 1829, but for some reason not shown, the sale was adjourned until Oct. 5, 1829. No sales were 1 7 Ctonn. 505. s Richardson v. Donr, 5 Yt. 9; Giddings c. Smi&, 15 id. 344,357; Lane v. James, 25 id. 481. 8 Mead v. Mallet, 1 D. Chip. (Vt) 239. * 19 Vt 49. vol.. I.— 37 577 § 652 RETUEN OF SALE AND RECORD OP PROCEEDINGS. made on the latter day ; but the collector finding that all of the sales had been made, and no mistake being discovered, he adjourned the vendue without day, and on the 16th day of October made his return of the proceedings. The proceedings were held void because the return was not made within thirty days after the completion of the sale. By the court : " It is said that the collector had power to adjourn the vendue, and that therefore the thirty days should commence running from the time it was adjourned without day. Vendue sales for land taxes are proceedings in invitum, and we have always required a strict compliance with the statute requisites. The statute is that the return shall be made within thirty days after com- pleting the sales. To hold that this means thirty days from the time the collector shall see fit to adjourn the vendue with- out day, though the sales may have been completed long be- fore, is a perversion of language. The statute can have but one meaning. The time must commence running when the sales are all completed ; and it matters not when the vendue shall in form be finally dissolved. The time begins to run when the sale is ended." § 652. In Sumner v. Sherman ^ the law required the col- lector to keep a record of his proceedings, and within thirty days next after the ending of his vendue lodge a true and attested copy of his sales, together with his warrant, tax bill, and advertisement, with the town clerk, whose duty it was made to record the same. The collector failed to perform this duty, and the tax sale was held void. Williams, C. J. : " This was calculated to protect the purchaser as well as the owners whose lands were sold, by preserving the evidence of the pro- ceedings and the authority of the collector, and by preventing any fraud to be apprehended from the mutilating or falsifying of these records by the collector, or deeding when he had not sold, or when he had no authority to sell. By a resort to these records the purchaser could ascertain whether his title was complete, and the owner whether his title had been divested by a public sale. It may be sufiicient for us to say that the legislature have required this to be done, and that by all the 1 13 Vt. 609. 578 BECOBD. § 653 previous decisidns in this State it has been considered that a failure to do so was fatal to the purchaser's title; that although the purchaser has no control over the collector to compel him to leave this copy, or over the clerk to compel him to record it, yet unless it is done he can acquire no title, and if he has any remedy it is against the officer who neglects his duty. It has never been doubted that a failure to comply with what is enacted must be fatal to any title attempted to be acquired. Thus, it has been considered that a neglect of the collector to record his proceedings, to leave a copy of his warrant and advertisement, although subsequent to the sale, or take the oath of office, and give bonds when required to do so, was a defect which prevented any title from passing by his sale." § 653. Record of the Proceedings, the Sale and Retom. — For the purpose of perpetuating the autiiority of the officer to sell, and the regularity of his proceedings, the legislature in some of the States have required such proceedings, or some portion of them, to be recorded at length in a particular public office. When the duty thus enjoined has been entirely neg- lected, imperfectly performed, or not performed in the time required by the statute, the title derived under such proceed- ings has been held void. The statute of Vermont directed the town clerk to record the collector's advertisement, and certify whether the same had been published according to law. In Judevine v. Jackson,^ this requirement not haAring been com- plied with, the tax sale was held illegal. The reasons of the court are thus assigned: "Purchasers and land-owners are to look to the records to ascertain whether a vendue is correct and valid, and whether it is necessary for the owner to redeem. The records must contain full and plenary evidence in this particular. Hence it is obvious that if the certificate of the town clerk as to the publication of the advertisement is omitted, there is no legal evidence that the advertisement has been published as required by law. The purchaser may find he has no title ; and the owner may omit to redeem, inasmuch as his land has not been legally sold." Where the proceedings were .18yt.470. ^^g § 654 EBTUBN OP SALE AND RECORD OP PROCEEDINGS. required to be recorded "in the proper office for recording of deeds," and they were recorded in separate books provided for the special purpose, and not in the regular books of the office, this was held to be a compliance with the law.^ In West Virginia, under ch. 31, § 14 of the Code, it has been held that failure of the clerk to note that the list of sales was returned to the clerk's office within the ten days is fatal to any deed he may make to a purchaser at such sales ; neither such pur- chaser nor his vendee can hold. His office must show when the list was returned.^ In regard to the manner in which the record is to be made up by the officer upon whom the duty is devolved, the courts are inflexible in requiring a rigid compli- ance with the requirements of the statute. The legislature of Vermont required the collector, on the completion of his sale, to make a return of his proceedings for record in the proper office for recording deeds in his township; and the town clerk was directed to record the advertisements at length, together with the title, number, volume, and date of the newspaper in which they were inserted, and the place where such papers were printed. § 654. In Culver v. Hayden ^ the place of the publication of one of the newspapers did not appear in the record made by the town clerk, and the sale was defeated for this omission. Turner, J., said : " That the clerk should have made the state- ment of the place where the paper was printed a part of the ■record, is a positive requirement of the statute ; and a com- pliance with this requisition must be regarded as a condition precedent to the conveyance of a good title by the vendue deed. Where property is affected, or the title to it divested by the provisions of a special act of the legislature, the requirements of the act must be strictly followed. In the present case the operation of the special statute was to divest the defendant of his property on his failure to perform a duty created by the statute, and on the performance of certain acts prescribed to the 1 Isaacs V. Shattuck, 12 Vt. 668. a Simpson u. Edmiston, 23 W. Va. 679 (1884); Barton v. Gilchrist, 19 id. 223. « 1 Vt. 359; reaffirmed in Clark v. Tucker, 6 id. 181. 680 EECOED, § 656 officers required to collect the tax and record the proceedings. The performance of these acts is the condition on which the property was divested ; and it is not for the court to inquire whether the provisions of the statute were reasonable, whether a compliance with them might be dispense.d with without in- jury to the defendant, but whether they have been made ; and if so, they must be literally pursued." § 655. In another case the record omitted the dute of the newspaper and its place of publication, and the sale was held void, the court remarking : " These records are not evi- dence unless they contain all the requisites pointed out by the statute. The statute is very particular in describing what shall be recorded, and makes certified copies of the record evidence. Those which fall short of this description are not evidence." ^ Another record omitted the official signature of the collector to the advertisement, which was attempted to be recorded at length, and for this defect the tax title was avoided.'^ § 656. In another case the offices of collector and town clerk were held hy the same person, Jonas Stone, and in certifying upon the books of the town clerk the verity of the record, he signed his name thus, " Jonas Stone, Collector," and the tax sale was declared illegal for this wrong designation.^ In an- other case the record of the advertisements was in the exact form prescribed by law, but the clerk made his record from copies furnished him from the collector's books instead of from the newspapers themselves which the collector was required to lodge with him. The tax sale was defeated. The court say : " Is this a compliance with the statute ? It is a principle of the common law that a copy of a certified copy of a record is not evidence. The reason is that the more removed the copy offered in evidence is from the original, the greater is the liability to inaccuracy. The objection would not be obviated though each copy be examined and compared by the same in- dividual. In the present case the record is two removes from the original advertisements. The statute requires the clerk to 1 Coit V. Wells, 3 Vt. 318. " Spear v. Ditty, 9 Vt. 282. » Isaacs w. Shattuck, 12 Vt. 668. 581 § 658 BETURN OP SALE AND EECOED OP PEOOEEDINGS. record the advertisements themselves. This is imperative." ^ It may be remarked that in this case the town clerk was held a competent witness to prove the facts upon which the objec- tion was founded. In another case the court held that the record must be verified by the ofBcial signature of the clerk.^ The principles illustrated by these cases are fully sustained by the authorities. § 657. Frivolous Objections overruled. — Although the courts are thus strict in requiring a compliance with every require- ment of the statute relating to the record of the proceedings, yet intendments are occasionally indulged in for the purpose of sustaining the validity of the record. It is generally said that no presumptions are indulged in favor of tax titles. " It is true that no essential requisite will be presumed ; but to a certain extent presumptions may and must be made, otherwise we are driven to forced and violent presumptions the other way, which are not to be made.* It was objected in one case that the place of publication did not certainly appear in the record. The law required the record to state " the place where such paper was printed." The record showed that the adver- tisement was " published at Windsor." There was a town and county in Vermont of that name. It was insisted that the phrase " at Windsor " was equivocal, but the court held otherwise : " We say at a town or village, but in a county or State. Prom this record no sober or sane man could seri- ously doubt where this paper was printed. And while we intend to be strict in regard to titles claimed by virtue of collectors' sales of land for taxes, and to dispense with no prerequisite which the statute fairly indicates, we hope to escape the imputation of frivolous and puerile criticism." * § 658. Another objection taken to the record in this case, and overruled, was that the law required the advertisement to be published in three different newspapers, and recorded at length ; whereas in this case the clerk had copied one, and referred to the others by name, date, number, volume, and place of publication, certifying that they were in the same 1 Carpenter v. Sawyer, 17 Vt. 121. ^ Taylor v. French, 19 Vt. 49. » Spear v. Ditty, 8 Vt. 419. * Isaacs v. Shattuck, 12 Vt. 668. 582 OBJECTIONS OVERRULED. § 659 form as the one recorded. And lastly, it was objected that the proceeding was recorded in a separate book, kept by the clerk for the record of tax proceedings, whereas the law re- quired the proceedings to be recorded " in the proper office for recording of deeds," which seemed to imply that they should be recorded in the record books containing deeds. But the court held the record valid. In Bellows v. Elliot^ it appeared from the record that the three newspapers in which the collectors' advertisement appeared were published at Danville, Eutland, and Windsor, but the State was not named, and the court presumed that these towns were in Vermont. A t&,x sale is not avoided by the collector's omission to file the newspapers containing the advertisements in the town clerk's ofiice within ten days after the sale.^ So if all the steps were legally taken in assessing and returning the taxes as unpaid that are prerequisites of the power to advertise, the omission of the town clerk to give notice at town meeting, according to requirements of 1 Revised Statutes, 5th ed., 931, § 76, that lists of land advertised for sale had been deposited in his office, will not avoid the sale.^ § 659. Where at the end of a record of the proceedings of a tax sale of land the town clerk affixed a certificate as fol- lows : " Received for record and recorded and examined April 7, 1840. Attest, John Dodge, Town Clerk," it was held that this certificate referred and applied to the entire record, the proceedings and the sale, including the warrant and certificate of the oath, as a complete and perfected record of the sale. The fact that such record was made from the original need not appear in the certificate ; that is presumed. Neither is a vendue sale rendered invalid by the fact that a sheet containing a list of unredeemed lands is tied into the book of records instead of being copied in.* 1 12 Vt. 569. 2 Smith w. Messer, 17 N. H. 420. s Pierce o. HaU, 41 Barb. (N. T.) 142. * Carbee v. Hopkins, 41 "Vt. 250. 583 CHAPTER XXm. THE SUBPLU8 BOND. ' § 660. Snmmary of tbe Subject. — Sometimes the statntes impose a duty or duties upon the purchaser, in order to per- fect and protect his title after his purchase is consummated. One of these is the duty to file a surplus bond. The statutes of Pennsylvania authorize a sale of imseated land to the high- est bidder, and require the purchaser to pay the amount of the taxes and costs due upon the land to the treasurer (the officer empowered to make the sale), and execute and deliver to that officer a bond for the payment of the surplus, if any, to the owner of the land. The substance of the law seems to be that the treasurer shall prepare the bond, that the pur- chaser shall execute it, and the treasurer file the same forth- with in the office of the prothonotary ; and the bond is declared to be a lien upon the land purchased, in favor of the former owner, for the period of five years from its execution ; and it is presumed from the language of the courts, and the nature and object of the requirement, that the bond ought to be executed simultaneously with the cousnmmatioh of the sale, — that the execution and delivery of the deed and bond are con- current acts. The proper execution and delivery of such a bond is essential,^ a payment of the whole purchase-money to the treasurer instead of giving bond for the surplus will not do ; 2 the bond must specify the surplus,' though a slight vari- ance from the truth in this matter will not be fatal,* and must describe the land so as to identify it, for the bond is a lien on the lalid.^ Loss of a bond actually given will not vitiate the title ; ® secondary evidence of its delivery and contents will then be available.'' No surplus bond need be given when the I § 661. ' § 663. » § 665. * § 666. « § 665. • § 664. ' § 667. 684 THE SUEPLUS BOND. § 661 cost of giving the bond would exceed the surplus: *'2>e minimis non curat lex." ^ § 661. The Execution and Delivery of this Bond hy the Purchaser to the Treasurer is a Condition precedent to the Validity of the Title acquired at the Tax Sale? Upon this point Chief Justice Gibson remarks : ^ " The bond for the surplus purchase-money beyond the amount of the taxes and costs was not given by the purchaser xmtil two years after the exe- cution of the deed. This is fatal. The legislature intended to make the filing of the bond and the delivery of the deed concomitant acts ; for it is expressly declared that the bond is t6 be filed ' forthwith.' But the reason of the thing is suf- ficient to show what was meant. In the case of an ordinary purchase the party calling for the execution of the contract must, in the absence of a positive stipulation, have performed, or at least be ready to perform, everything he was bound to do ; and the same principle is applicable to cases of purchase at tax sales. The purchaser is not to be invested with title to perhaps a valuable tract of land, and on payment of a few cents, before that portion of the purchase-money which be- longs to the original owner has been secured in the way pointed out in the law. It is no answer to say it is the duty of the ofiScer who executes the deed to see that the bond be filed, and that for negligence in that particular the owner has a remedy against him and his sureties, and that as the owner is secured in this shape the title passes independently of the bond. For whose security is the bond to be filed ? Certainly for that of the owner. The intention was to give him a lien upon the land itself, and to make it the duty of the purchaser, at the peril of his title, to see that he has it. He might other- wise incumber the land so as to render a bond subsequently given no security at all. Besides, it would be unreasonable, and what the legislature never intended, to suffer bidders to turn the sale into a mere experiment, and to hold to the con- tract or rescind it, as the bargain should turn out to be a good 1 Devinney v. Eeynolds, 1 Watts & S. (Pa.) 328. 2 Cuttle V. Broekway, 24 Pa. St. 145. » Sutton V. Nelson, 10 Serg. & E. (Pa.) 238. 585 THE SUEPLUS BOND. or a bad one ; or, as in this very case, to execute the bond after the lapse of a considerable period, and to claim the land after the original owner had enhanced its value by improve- ments. The law intended that every transaction of this kind should be a real one, the execution of the bond and deed being simultaneous ; whereas, when the officer parts with the deed without having obtained the bond, the purchaser is to be considered as obtaining it surreptitiously, because the officer transcends his power, and under such circumstances the delivery is void." § 662. And in McDonald v. Maus,^ which was an action of ejectment, the plaintiff gave in evidence a legal and regular title in himself, and the defendant relied upon a tax title. It was objected to the latter title that the defendant had given no bond to the treasurer for the surplus of the purchase- money. There was no positive evidence whether such a bond was given or not. But the court below" being of opinion that, whether there was proof of it or not, the defendant's title was good, so instructed the jury, who found a verdict accordingly, upon which judgment was entered. The judgment was re- versed by the Supreme Court, and a venire de novo awarded. Rogers, J. : " If a purchaser, at a treasurer's sale for taxes, has neglected to file a bond, for the surplus moneys, within two years after the sale, the deed to him is void.^ Although subsequent cases have somewhat limited this rule, so far as it regards the person whose duty it is to file the bond, yet the execution and delivery of the bond form a part of the title ; and whenever a person relies upon a tax title, it is necessary for him to prove affirmatively the filing of the bond, or at any rate its execution and delivery. Without this, the title is void, and cannot avail against the former owner." This doctrine was reasserted in Donnel v. Bellas.^ § 663. The payment of the whole amount of the purchase- money to the treasurer cannot be taken as a substitute for the surplus bond.* The bond is a lien on the land, for which 1 8 Watts (Pa.), 364. s Sutton V. Nelson, 10 Serg. & R. (Pa.) 238. « 10 Pa. 341. * But the failure to give a surplus bond on the purchase of unseated 586 LOSS. — CONTENTS. § 665 the personal security of the treasurer is not an equivalent. Even his sureties would be irresponsible for the surplus thus placed in his hands, for the receipt of it would certainly be an unofficial act.^ § 664. Loss of a Bond properly given will not defeat the Title.^ — In White v. Willard* the purchaser gave bond at the time of the sale, as required by law, but the bond was mislaid by the treasurer, and was not found until seven years after, when it was filed in the proper office. It was held by the court that the title of the purchaser became perfected when he executed and delivered to the treasurer the surplus bond contemplated by the statute, and that the neglect of the treasurer to file it could not affect the title of the purchaser. By the court : " It is not the business of the purchaser to attend to the duty of the officer further than to see that he had the bond ; nor can he be made answerable for negligence not his own. For whose benefit is it that the officers perform this particular duty ? Certainly for the benefit of the former owner, who alone has a remedy against him for a breach of it ; and this shows that the purchaser is not the party to suffer by the offi- cer's negligence. If then the purchaser has performed his part by delivering the bond, he is not chargeable with negli- gence in remaining ignorant of the officer's omission for seven or any other number of years. But, granting him to have been aware of the fact, yet, not being a trustee for any one, it was not his business to interfere, which is still more con- clusively shown by his total inability to control the officer's actions." The same principle has been affirmed in other cases.* § 665. Contents of the Bond. — The bond must contain a specification or particular description of the land sold, other- wise it is vicious, and the title of the purchaser defective. The reason is, that the statute makes the bond a lien for land, and paying the whole purchase-money to the treasurer, are irregu- larities cured by the limitation in the act of April 3, 1801. Sogers v. Johnson, 67 Pa. St. 43. 1 ConneUy v. Nedrow, 6 Watts (Pa.), 451. ' See § 667. » 1 Watts (Pa.), 42. * Burns v. Lyon, 4 Watts (Pa.), 363. 587 § 667 THE SURPLUS BOND, the snrplns upon the land purchased, and surely the bond cannot create a specific lien against rights subsequently ac- quired, unless the land upon which it was intended to operate is specifically described in it; and the indorsement of the description, by the treasurer, upon the back of the bond, cannot aid it, as the oflficer's indorsement is no part of the instrument. The indorsement is a simple memoranduia for the convenience of filing it. The omission to describe the land in the bond is not simply a misprision of the treasurer. It is true that the treasurer is charged with the business of preparing it, but he is bound to perform it under the direction of the purchaser ; and the latter is bound, on the oUier hand, to know the law of his title, and to point out errors in the concoction of it. When the bond is delivered, his partici- pation ends, and the exclusive business of the treasurer be- gins. Previous to the execution and delivery of the bond the purchaser acts at the peril of his title.^ § 666. A trifling vaiiance betvreen the aniplnB and the bond will not defeat the title of the purchaser. It is a mere mis- prision of the officer, and being immaterial, the maxim " De minimis non curat lex " applies. It is presumed that it is not necessary to give a surplus bond when the surplus does not exceed the cost of its execution.^ The purchaser, in order to show that his bond covered the amount of the surplus, may contradict the recital in the treasurer's deed, as to the amount of the surplus, by the sale-book or other competent evidence.^ § 667. Evidence of the Delivery and Contents of the Bond. — To prove the execution and delivery of a surplus bond rests with the purchaser.* And he must show, by satisfactory proof, that the law in this respect has been strictly complied with. Where diligent search has been made in the proper 1 Bartholemew v. Leech, 7 Watts (Pa.), 472. > Frick V. Sterrett, 4 Watts & S. (Pa.) 269; Devinney o. Beynolds, 1 id. 328. « Turner v. Waterson, 4 Watts & S. (Pa.) 171. * But under the statute where the deed recites that it has been given, the burden is on the party who denies that a bond has been filed to show at least some ground for his assertion before he can call for pioof from the other side. Cuttle o. Brockway, 24 Pa. St. 145. 588 EVIDENCE OP DELITEBT, ETC. § 667 office for the bond, and it cannot be found, and the testimony of the treasurer, or a third person, is relied upon to establish the fact that a bond was executed and delivered by the pur- chaser, the evidence must be clear and satisfactory in its character, and not depend upon the indistinct recollection, the vague impression, or doubtful surmise of the witness.^ The receipt of the treasurer for the surplus bond required of the purchaser by the act of Assembly is prima fcusie evidence of the execution and delivery of the bond by the purchaser, and of the fact that it was duly filed by the treasurer ; ^ and in the absence of any rebutting proof must, like all prima facia evidence, be deemed conclusive.^ So a recital in the tax deed of the execution of a surplus bond is held to be •prima facie evidence of that fact.* In Burns v. Lyon ^ it was held that common-law proof of the execution of the surplus bond was unnecessary ; that its execution would be presumed from the fact it was found among the files of the prothonotary's office. Secondary evidence of the existence and contents of a surplus bond is not admissible until its loss or destruction has been established in conformity with the principles of tiie common law.^ Where a tax deed contained a receipt for cost of a surplus bond, it will be presumed after a lapse of nearly thirty years, during which the purchaser has paid taxes, etc., that such surplus bond was given.^ In ejectment for land bought at tax sale where the treasurer's deed recited payment of the whole purchase-money but did not recite a surplus bond, it was held that no presumption that such bond was given arose from the lapse of time, or from the payment of subsequent taxes, or from the duty of the officer to rebut the evidence in the deed that the whole sum was paid in money .^ 1 M'Donald ». Maus, 8 Watts (Pa.), 364. a Fager v. Campbell, 5 Watts (JPa.), 287. » Robinson v. TWfilliams, 6 Watts (Pa.), 281. *■ Devinney ». Reynolds, 1 Watts & S. (Pa.) 328. 6 4 Watts (Pa.), 363. 6 Dreisbach v. Berger, 6 Watts & S. (Pa.) 564. ' Lackawanna Iron, etc. Co. v. Fales, 55 Fa. St. 90. 8 Alexander v. Bush, 46 Pa. St 62 (1863). 589 CHAPTER XXIV. OP THE LOCATION OP THE LAND SOLD. § 668. The Land Sold most be Ascertained. — In sales of this character the law requires a specific location and certain description of the land sold in all cases where a less quantity than the entire tract offered is stnick off. Where a convey- ance is made of a certain number of acres, without locating it in any particular part of the tract, the conveyance confers no election upon the grantee to locate the quantity purchased, but the deed must be held void for uncertainty.^ Thus, a deed of " 10 acres in lot 26, in the 11th range, in the town of Columbia," is void for uncertainty .^ If the description of the land assessed is definite and accurate, and is inserted in the tax deed, and the purchaser at the sale buys a portion of it, such description in the tax deed of the portion sold as will enable its boundaries to be determined by extrinsic evidence, applying the description in the deed to the land, is sufficient.^ Sometimes the law requires the purchaser to make and pre- sent to the sheriff a survey of the land bid off to him within a certain time.* In the States of North Carolina and Ken- tucky the law authorized a sale of the least number of acres without designation in terms, or authorizing the oflBcer selling 1 Erwin v. Helm, 13 Serg..& R. (Pa.) 151; Haven v. Cram, 1 N. H. 93 ; Jackson d. Livingston v. De Lancey, 11 Johns. (N. Y.) 365, 373; s. o. 13 id. 551; Jackson v. Rosevelt, Id. 97. The opposite doctrine is asserted in Coxe V. Blanden, 1 Watts (Pa.), 533; but it is so utteriy repugnant to the general principles of law, that it cannot be sustained. This case is recog- nized in Hess v. Hemngt|^, 73 Pa. St. 438, 448. « Harvey v. Mitchell, Sfl^. H. 575. » Brunn v. Murphy, 29 Cal. 326. ■« Avery v. Rose, 4 Dev. ^N. C.) 549. 590 LOCATION. § 671 to locate the part sold, but directing the officer to execute a certificate of the quantity Bold, which constituted the author- ity of the county surveyor, to make a location of the part sold by actual survey ; and upon the return of the survey the officer who made the sale was required to convey to the pur- chaser according to the metes and bounds of the survey thus made and returned.^ § 669. Discretion of the Officer. — In some instances the officer making the sale is authorized to elect in what part of the tract the quantity shall be located, and announce his elec- tion to the bidders previous to the sale. Thus, in the Illinois statute of Feb. 19, 1827,2 it is provided that "the sheriff shall proceed to sell said property, or so much of it as shall bring the amount of the tax and cost, and the officer selling shall, previous to the sale, designate in what part of the tract the part sold shall be located, and shall give his certificate and make his deed accordingly." § 670. statutory Location. — In other instances the law itself locates the land sold, without the intervention of any agency whatever. This was the case in the Illinois statute of Feb. 26, 1839,^ which declared that " when a portion of the tract shall have been struck off on any such bid, it shall be taken off the east side of said tract, extending the whole length on the east side, and so proportioned in width as to embrace the number of acres sold as aforesaid." § 671. The present statute of Illinois provides that when a less quantity than a whole tract shall be sold, the part pur- chased shall be located on the east side of the tract. In SpeUman v. Curtenius * the description of the land offered for sale was : S. W. and S. E. 9, T. 8, N. R. 8, E., and the sale was of one acre off the east side of the two parcels ; the two quarters were fractional, ran to a point on the east, and there- fore, strictly speaking, had no eastern side. By the court: " The intention of the law is, where less than the whole tract is sold for taxes, that the quantity sold shall be taken from 1 Cnrrie v. Fowler, 5 J. J. Marsh. (Ky.) 145; Jones v. Gibson, Taylor T. R. (N. C.) 41. " Gale's Statutes, 566, §§ 24, 25. » § 35. « 12 lU. 409. 691 § 673 OP THE LOCATION OP THE LAND SOLD. the eastern part of the tract, and a line is to he drawn due north and south, far enough west of the most eastern point of the tract of land sold, to make the requisite quantity. The law must hare a practical effect ; and because a tract of land does not happen to be in a form so as to have, strictlj speak- ing, an east side, it is not to be presumed the legislature in- tended such tract to be exempt from this general provi^on of the revenue law. To give it such a construction would be emphatically sticking in the bark." § 672. But upon the same identical state of facts the tax deed was held void in Ballance v. Forsyth.^ McLean, J., in delivering the opinion of the court, said : " In these two frac- tional sections there appear to have been about 150 acres. It is not said in what form the acre is to be surveyed. Certainty in such a case is necessary to make the sale valid, for on the form of the acre its value may chiefly depend. And there is nothing on the face of the deed, or in the proceedings previous to the sale, which supplies this defect." It may be added that the same want of specific locality of the land sold, which would render void the anterior proceedings, will also establish the invalidity of the deed. § 673. Sec. 85, Act 169, Laws of Mich, of 1869, p. 355, provides that when less than the whole of any parcel shall be sold for taxes, etc., " the portion thereof sold shall be taken from the north side or north end of such parcel, and shall be bounded on the south by a line running parallel with the northerly line thereof, unless the same be an irregular frac- tion; in which case the portion thereof so sold shall be bounded on the south by a line running due east and west." 1 13 How. (U. S.) 18. END OP VOL. I. 592