Cornell Law School Library Cornell University Library KF 6289.C77 1881 Wi TAA 3 1924 019 996 499 law A TREATISE ON THE LAW OF TAXATION, INCLUDING THE LAW OF LOCAL ASSESSMENTS. ph Pa BY THOMAS M. COOLEY, LL. D., One of the Justices of the Supreme Court of Michigan, and Jay Professor of Lavo in the University of Michigan. CHICAGO: CALLAGHAN AND COMPANY, LAW BOOK PUBLISHERS. a 1881, r “CORNELL ane NESSITY. <2 (ona ¥ eo en Entered according to Act of Congress in the year eighteen hundred and seventy-six, BY CALLAGHAN & CO., in the office of the Librarian of Congress, at Washington, D.C. iE G18 C77 eas ATWOOD & CULVER, "STEREOTYPERS AND PRINTERS, MADISON, WI8. PREFACE. Tue following pages have been prepared with a view to present in a shape for practical use, the general rules which must govern the action of all authorities acting in matters of taxation. Had a similar task been previously undertaken, the writer would gladly have been spared the labor; but Mr. Blackwell’s Treatise on Tax Titles covers the ground only in part, and Judge Dillon, though he has done valuable service in the same direction, has not, in his work or “Municipal Corporations, deemed it advisable to go beyond what seemed necessary to a legitimate and perspicuous presenta tion of that subject. Other writers have had occasion to discuss only particular topics in the law of taxation, leaving a compre- hensive examination of the general subject to be still entered upon. The decisions in this country on the subject of taxation have become so numerous, that it would be impossible to give abstracts of them all, within any reasonable compass. The author has thought it preferable, instead of attempting a digest of them, to group the references about the controlling principles. The tax systems of the several states are so dissimilar, that a mere digest of the cases is exceedingly liable to mislead, by giving, as a general rule of law, what is only a conclusion from a local law or custom. There are, or should be, general principles underlying all the cases; and an understanding of these will enable one to make use of decisions under the various tax systems, without confusion. The subject of taxation seems to invite some consideration of questions of political economy; but these have been passed by after bare mention, as not being necessarily involved in a discus~ iv LAW OF TAXATION. sion of the legal points. They present considerations for the legis- lature in framing tax laws; but courts and ministerial officers must enforce tax laws as they are, whether based on sound or unsound principles of political economy. The preparation of any treatise on taxation necessarily involves the presentation of disputed points, and the expression of opinions upon them. This has been done in the following pages. It has not been the purpose, however, to take any positions which it was not believed the authorities would justify; and if this has been done in any instance, the references which are made to authorities will doubtless enable the reader to detect the error. Possibly it may be thought, that on some points, too much importance has been attached to those fundamental principles which restrict the power to tax. But when one considers how vast is this power, how readily it yields to passion, excitement, prejudice or private schemes, and to what incompetent hands its execution is usually committed, it seems unreasonable to treat as unimportant, any stretch of power —even the slightest — whether it be on the part of the legislature which orders the tax, or of any of the officers who undertake to give effect to the order. Especially is this so, when it is understood how little restraint there can be on the igno- rant action of assessors, acting with jurisdiction, and how very seldom an effectual remedy can be administered where fraud or corruption exists. And as the benefits of republican government have been reached through the efforts of the people to establish and maintain the legitimate restraints upon the power to tax, it seems unwise in a high degree, to slight or disregard any of the checks which the law has provided, whether those which are entrusted to the hands of the judiciary, or those which are the lawful right of the people themselves, who are to bear the burden of the particular tax. THomas M. Coorzy. University or Micuiean, Ann Arbor, January, 1876. TABLE OF CONTENTS. CHAPTER I. TAXES, THEIR NATURE AND KINDS. Definitions of taxes, - - - - s - = ae. ct How taxes differ from subsidies, forced contributions, etc. - 2 Meaning of duty, impost, toll, etc., - 2 - - - 8 The taxing power an incident of sovereignty, - * * “ 3,4 Direct and indirect taxes, a 5 - a a - 5 Maxims of policy in taxation, é - - 7 - : 6-10 Taxation in encouragement of branches of industry, - - - 10 Taxation in discouragement of certain occupations, - : - 11 Taxes in kind, - - - a 7 % = - 12 Taxes not debts, - - - . s e s a 13 Taxation and protection reciprocal, - - : - : 13-17 Taxes should be in proportion to what is protected, - - 16, 17 The taxes governments have been accustomed to lay, - - - 18 Capitation and land taxes, - - - - - 18 Taxes on houses, - 2 - = - - 19 Taxes on incomes and employments, - - - - 20 Taxes on the carriage of property, on wages, servants, horses, dogs, carriages, etc., - = - - - 21 Taxes on the interest of money, - - - = 2 = 22 Taxes on dividends and successions, - - 7 . 22 Taxes on sales, bills of exchange, etc., - - - e @ ~22 Taxes on newspapers and legal process, - . . - 23 Taxes on consumable luxuries, - - - ‘ 2 - 28 Taxes on exports and imports, : . 2 . 24 Taxes on corporate franchises, - ‘ e « - - 25 Taxes on the value of property, - . 3 7 - 26-30 Early English taxation, - - - . . 26, 27 Taxes on amusements, etc, - - - . - 80 General right to tax other subjects, - - - - . 80, 31 vl LAW OF TAXATION. CHAPTER II. THE NATURE OF THE POWER TO TAX. Apportionment of sovereign powers, - - - 82 The power to tax falls to the legislature, - - - - 82 In some states revenue laws must originate with the lower house, 82, 33 Limited power of the executive in taxation, = - - - 33 The judiciary only empowered to check excess of authority, = - 33-36 Colorable taxation, 7 - - 36 Meaning of the guaranty of protection by the “law of the land,” 36-40 CHAPTER III. LIMITATIONS UPON THE TAXING POWER. Restraints, express and implied, es 7 - - - 4f Taxation must be for the public good, - - - 42 And for public purposes, - - - - - 42 Territorial limitations, s 2 - - 42-44 Taxation and representation go together, - - 44-48 Case of municipalities, - - - - - 46,47 Case of the District of Columbia and the territories, - - 47, 48 The taxing power not to be delegated, - - - 48-51 But may be to the municipalities, - - : - 51 The power may be abridged by contracts, : - - - 52-55 Exemptions in general not contracts, - - - - - 54 Private charters of incorporation, etc., : : . : 65 Agencies of government not taxable, - - - - 56,58 The rule applies to state agencies, - . « S a 58 Case of tax on passengers leaving a state, - - - - 459 Case of the public domain, = = ss 59, 60 Railroads are taxable, a is . S ie 60, 61 Taxes on commerce, when forbidden, - a “ « - 61-64 Case of tonnage duties, = = Z me - 62 Case of importers, - = = = - 62,63 Jase of freight carried from state to state, - - = - 63 Case of brokers, legacies to aliens, etc., . ‘ x 64 Taxes in abridgment of privileges and immunities of citizens, 64, 65 Taxes which impair the obligation of contracts, 2 = a 65 Other restraints must rest upon express provisions of the constitution, 66 CHAPTER IV. THE PURPOSES FOR WHICH TAXES MAY BE LAID. The general rule, - . a - 67 Legislative determination generally conclusive, - - - 67, 68 TABLE OF CONTENTS. vil It is presumed to be correct, - - - - 69, 70 Only an excess of jurisdiction may be restrained, - - 10,71 Grade of the government important, - is - - M1-73 General expenses of government, - - - - - 13-76 Restraints on taxation by general government, - - - 73, 74 Public purposes in general, - - - - : 16-83 Case of private ways, - - : - - Case of mill-dams, J a = s = - yy Case of manufacturing enterprises, - - - - - 78-80 Taxation and eminent domain compared, - - - - 6-80 General enumeration of public purposes, - - - - - 81-83 Religious instruction, - - - . - 83, 84 Secular instruction, - - - - - - 84-88 Public charity, - - - - - - 88,89 Private business enterprises, - - . : - - 89,90 Moral obligations, - - - : - - 91 Amusements and celebrations, - - . - - - 92, 93 Highways, roads and canals, - - - - - 9498 Railroads, - - - - . - 95 Municipal water and gas works, - - - - - 98, 99 Military bounties, - - - - - - 99-101 Protection of the public health, - : - . - 101 Protection against calamities, - - : - - - 102 Payment of the public debt, 2 e < i - 102 Interest need not be exclusively public, - - - : - 102 CHAPTER V. THE PURPOSE MUST PERTAIN TO THE DISTRICT TAXED, The general rule, : - - - - 104-106 Instances of violation, = e : . 106-108 Taxing districts in general, - - - - 108-110 Legislature must establish districts, - - - - 110-118 Judiciary cannot interfere with, - - - - - 111 Legislature must use its own methods, - - - - 112, 113 Different districts for different purposes, - - - - 118,114 Cases of overlying districts, - - - - - 114-120 For state buildings, - - - : - 114,115 For county buildings, - - - - - - 115 For canal, - - - - - - 115 For streets, : - : - - - - i117 In case of general city taxation, - - - - 118 Case of wrongful extension of city boundaries, . - 119, 120 Extra territorial taxation inadmissible, zs : 7 - 121-123 Vili LAW OF TAXATION. CHAPTER VI. EQUALITY AND UNIFORMITY IN TAXATION. Taxes should be equal, - - : - - 124 Impossibility of making them so, —- - - - - 124-129 Invidious discriminations are void, 2 : - - 128, 129 Exemptions admissible, - 3 z “ é - : 180 Implied exemptions, - - - : - - 130, 131 Constitutional provisions bearing on express exemptions, - 182-144 In Arkansas, - s 7 - - - - 182 In California, - 2 = é 2 - - 132 In Georgia, - . - - - - - - 183 In Illinois, - - = . - - - 183-137 In Indiana, - - - - - - - 137, 188 In Iowa, - - - - . . - - 188 In Louisiana, - - - . . - - 188 In Maryland, - - ° . Ss - - 189 In Massachusetts, - - - - - - - 140 In Michigan, - e . - a . Ps 141 In Minnesota, - - = - - ss - 141 In Missouri, - - - - . . = 141 In Ohio, - - - . . - . 142, 143 In Tennessee, - - : - . . - 148,144 In Virginia, - - . . - ia . - 144 In Wisconsin, - - - - J - 3 144 Generalright to make exemptions, - . - . - 144, 145 Generally subject to be recalled, . . : - 145 Intent to exempt must be clear, - ° . ° < 146 Exemptions must be strictly construed, : - : 146-151 From taxes will not apply to assessments, . - - 147-149 Invidious exemptions not admissible, . i 5 152-154 Accidental omissions from taxation, - o 5 = - 154-156 Fraudulent assessments may be corrected in equity, . - 157, 158 Duplicate taxation not always avoidable, - es is - 158-163 Does not render the tax invalid, - - - s 160-163 In what cases inadmissible, js - = - 164,165 Presumption against intent to levy it, - = rR 165, 166 Application of the presumption, - . . e - 166-171 Commuting for taxes, . . * % * s 172 Diversity of taxation in different districts, - . S - 172,173 Monopolies not allowable, - - - « a 173 Permanence in legislation important, - - Ss . = 174 CHAPTER VII. APPORTIONMENT OF TAXES, Apportionment essential, - - : - 5 - 195 TABLE OF CONTENTS. Methods of apportionment, : - Specific taxes, - F - - Ad valorem taxes, - - - - Taxes apportioned by benefits, - - General principles of apportionment, - - Apportionment presumptively just, - - - Rule of, must be applied throughont the district, Methods of collection may be different, - Failure of rule in individual instances may not aviod tax, Must not be extended beyond the district, - Must not make special exceptions, - CHAPTER VIII. OFFICIAL ACTION IN MATTERS OF TAXATION. Necessity for official action, - - Definition of office and officer, - - - . Officers de facto, - = - s Officers de jure, - - . < - Usurpers, who are, - 2 * ” Questioning title of officers de facto, - - - Not in general permitted, - = 2 Except where the officer himself relies upon it, The public may rely upon his action, -~— - These principles apply in tax cases, : Intruders may be estopped from denying their authority to act, Action by joint boards, a é 3 Necessity that all act or be notified, - 2 Majority in general may decide, - - : Official returns and certificates generally conclusive, Remedy of parties injured thereby, - - CHAPTER IX. THE CONSTRUCTION OF TAX LAWS. General rules of construction, - 3 a Legislative intent should govern, - - = Extrinsic aids in reaching it, - : - Construction of revenue laws in general, . - What are revenue laws, - - 7 5 Mr. Dwarris’ rule for construction, - . Quotations from English decisions, - = Quotation from Mr. Justice Story, - - 3 From other federal judges, - - - Remedial and revenue laws compared, - . Quotations from other cases, - - . Reasons for strict construction, - . 7 ix - 175-17 - 195 é 176 - 196 - 177-179 - 179 : 180 - 181 - 181, 182 ~ 12 - 182, 188 - 184 : 184 184-186 : 185 186, 187 - 187-189 - 187 ’ 188 - 189 - 190,191 191, 192 - 193,194 - 198 - 194 - 195 - 196 197, 198 ‘ 198 - 198 - 199-208 - 199 - 200, 201 - 201 ; 202 - 208 - 204-206 206, 207 2 208 x LAW OF TAXATION. Construction of local power to tax, 2 - - < 209-211 Is to be strict, 2 x , > 5 209 Instances of application of the rule, - - . - 210, 211 Liability of power to abuse, no argument against it, - - : 212 Directory and mandatory provisions, - - - * 212-220 Rule for discriminating between them, - : - - 218, 214 Reasons for the rule, - - - - - 214-216 Instances of mandatory provisions, - * ° - 216-219 Instances of directory provisions, - - ° = 219, 220 Retrospective taxation admissible, = = © - Ral Presumption against intent to levy it, - - : : 221, 222 CHAPTER &X. CURING DEFECTS IN TAX PROCEEDINGS. Power of the legislature to dispense with strict compliance with the statute, - é i 5 < é - 283 Various methods by which this may be done, - - - 223 1. Conclusive rules of evidence, not admissible, - - - 228 2. Legislative mandates, equally ineffectual, - - - 223 8. Special curative acts may be passed, - : - - 225 Objections to these, - - - 226 Cannot cure defects of jurisdiction, - - - - 227 Or unconstitutional taxation, - - - - - 227 Or taxation which discriminates against individuals, - - 228 What can be cured in general, - - - - 229 4, 5. Prospective curative laws, - - 230, 231 Curative laws may apply to pending suits, - - - 231 But not to those where judgments are rendered, - 282 6. Reassessments may cure irregular taxes, - - 282 But not those which could not originally have been made valid, 283 Judicial corrections sometimes provided for, - - - - 288, 2384 Amendments may sometimes cure defects, - - - - 234-243 What defects may be supplied by intendment, - - - 234 Amendment of proceedings in court, - - - 235 Parties should be notified, - - - - - 235 Amendments by ministerial officers, - - - - - 286 Decisions in New Hampshire, - - - - 286-240 Decisions in Massachusetts and Vermont, - - . 240-242 Opinion expressed in New York, co - 2 s 241 What cannot be cured by amendment, - e é - 242, 248 CHAPTER XI. THE VOTING OF THE TAX. Every tax must have legislative authority, - : is 244 The authority may be general, - 2 3 < . - 244 TABLE OF CONTENTS. Amount of local taxes, how determined, : : - Voting taxes by popular assemIflages, - - - - Meetings must be regularly convened, — - - - - How meetings convened, : - : a Notice of special mectings, - 7 3 Voters act in political capacity, - - 3 « Presumption in favor of'action, —- 2 = iS = No appeal from voters to courts, - - - ‘ Restrictions upon municipal taxation, - = - = % 1. Those imposed by U. 8. constitution, : - * 2. Those imposed by state constitution, — - = . 8. Those which inhere in the nature of taxation, - - 4. Those which specially pertain to lucal taxation, - - 5. Those which are attached as conditions or regulations, Purpose of constitutions to protect minorities, - - Constitutional requirement that local powers to tax shall be re- stricted, - - : - - Restrictions by legislation generally, - - 2 : Conditions precedent to local taxation, - : * Must be strictly complied with, - = by Repeal or modification of local powers, - a z Exhausting authority, - - - 7 Authority must be strictly executed, - - . . CHAPTER XII. THE ASSESSMENT OF PROPERTY FOR TAXATION. In what. cases an assessment called for, - - : Meaning of assessment, - - = 3 is Necessity for an assessment, - - - 2 . From what time it dates, - - “ é Tax payers’ lists, what are, - a - s Penalty for not bringing in, - - 2 = Statute providing for, must be complied with, - . Right of party taxed to a hearing, - - - . = Effect of disregarding the right, - = = Personal assessments, - e Z : : Must be against party at his place of residence, - - Case of tangible personal property, s < 2 * Case of partnership, - - - 2 Case of private banker, etc., : - Si 2 5 Different methods of assessment, - - . : Assessment of corporations, = - - - - - 7 And of corporators, - - - : : 7 Assessment of real property, - . - ‘- é 2 Seated and unseated lands, - - S . z Resident land, assessment of, - s > 2 = x1 244, 245 245-250 245 245, 246 246 247-249 249 249, 250 250, 257 - 250 251 - 261 251 - 261 252 252 252, 253 254 254, 255 255, 256 256 - 251 - 258 258 259, 260 260, 261 - 261 262 261-264 265-263 267, 268 269-272 269-271 270 - 21 QTd - 272 278 - 274 275-289 Q75-277 278, 279 xi LAW OF TAXATION. Separate tracts to be separately assessed, 2 What are separate parcels, - - Description, what required, - - : Purposes subserved by giving, - : Valuation of real property, - = - - Of separate parcels separately, - - - Is a judicial act, - - - Legislature cannot make, - - : - Case of joint ownerships, - - - Assessment must be authenticated, - - - Equalization, what it is, - - - Is a judicial act, 7 7 - - - CHAPTER XIII. THE COLLECTOR’S WARRANT. Necessity for, S 2 iz What it is: tax roll, tax list, duplicate, etc., - - It must have the statute requisites, . - Defects which do not vitiate, = - 5 ie 2 Different warrants for different taxes, - - Delivery of warrant, - = 2 é Exhaustinug authority under it, a 2 Effect of blending taxes in, - - - Excess in the taxes makes process void, - - How excess may arise, - - ° The,maxim de minimis lex non curat, - : CHAPTER XIV. THE COLLECTION OF THE TAX. Summary remedies necessary, is “ é Various methods of collection, : = < 1. Collection by suit atlaw, - - 2. By arrest of the person taxed, - - ° 8. By distress of goods and chattels, - - Demand for the tax to be first made, - . 4, By detention of goods and chattels, - 5. By sale of lands, - = - . Liev of the tax on lands, . = Return of no goods, etc., - - 6. By imposition of penalties, e = Right to impose penalties considered, - %. By forfeiture of property taxed, . The general right of forfeiture discussed, - 8. By conditions to the exercise of aright, - Collection by the state from its municipalities, = 279, 280 281, 282 282-287 284 - 287 287 - 288 288 288, 289 289, 290 - 290 291 - 292 292 292, 293 298, 294 - 294 295 - 295 295 295-297 296 296, 2077 - 298 299 - 300 301 801-304 304 - 805 305 305-307 307-309 309-315 818-315 315-319 316-319 819-321 321 TABLE OF CONTENTS. xill CHAPTER XV. THE SALE OF LANDS FOR UNPAID TAXES. When and why it is made, < - : : - 822 Land must be liable for the tax, 2 - - - - 322 Payment of tax takes away right to sell, - - - - - 822 ‘Who may make payment, - - - - - - 823 Tender defeats right to sell, - - - - - - - 823 Proceedings to a sale must be regular, - - - : - 823 Reasons for this, - = - = ‘s z= s 324-326 Onus of proof is on the purchaser, - - - . - 826 The grounds of this doctrine, - - - : - 326-329 Presumptions of regularity, force of, - - - - - 829-3382 Cannot supply want of record, - - - - - 332 Special authority to sell, when requisite, - - - - 333 Notice of sale, é - 5 = . es - 884 Statutory requirements regarding, must be strictly observed, 334 Instances of defective notices, - - - - , 835,836 Descriptionoflandin, - - - - - - 336 3837 Proof of notice, - o a i « * i! 337 Time and place of sale, ao J 5 Levee assessments, - z s a Drainage assessments, - . . a License fees in general, - - : - - Definition of license, : - - ~ Grant of license by state, city, ete, - - . Fees, when a tax, - - . . 7 What may be licensed, - - - . . Common cases of license, - - . . Issuing the license, - - - - ° Recalling licenses, - - - . - Collection of license fees, - - - a Federal licenses, effect of, - - . S CHAPTER XX. TAXATION BY SPECIAL ASSESSMENT. The general subject of special assessments, fs = The principle which underlies them, - 7 - They are based upon benefits, - - . . Are made under the taxing power, - - ° Cases for assessments, - - - ‘i 7 Court houses and other public buildings, - = Streets and highways, - - : - - Altering and repairing streets, - - . Drains, sewers, etc., - s - - » be taxed by it. In such a case the state affords no protection, 1 Ante, ch. IT. 2 Post, ch. IV. 3 Ante, p.14. The lands of an Indian tribe are not taxable. The N.Y Indians, 5 Wall., 761. Nor the Indians themselves when not citizens. State v. Ross, 7 Yerg., 84. CH. Il] LIMITATIONS UPON THE TAXING POWER. 43 and there is nothing for which taxation can be an equivalent.? But where a person is resident within a state, his personal prop erty in contemplation of law accompanies him, and he may be required to pay taxes upon it wherever it issituate,? while the real estate of a nonresident is always taxable where it is? It is competent also for any state to provide that tangible psrsonal property situate within it may be taxed there irrespective of the residence of the owner; and sometimes state laws provide for such taxation. The case of corporations is in some respects pe- 1 Where the shares in a corporation are taxable to shareholders, it is not competent to tax the corporation itself on the shares of nonresident sharehold- ers. State o. Thomas, 26 N. J., 181. * Inhabitants of Great Barrington v. County Com’rs, 16 Pick., 572; State 0. Branin, 23 N. J., 484; State v. Bentley, id., 532; Newark City Bank ». The Assessors, 80 id. 18; Nashua Savings Bank ». Nashua, 46 N. H., 389; Bemis v. Boston, 14 Allen, 866; Commonwealth o. Hays, 8 B. Monr., 1, 2; Wil- key v. Pekin, 19Tll., 160; Rieman ». Shepard, 27 Ind., 288; Johnson v. Oregon City, 2 Oreg., 827; Same v. Same, 3 id. 13; Griffith ». Carter, 8 Kan., 565; Blood v. Sayre, 17 Vt., 699. But not in a state where it is merely passing through. Hays ». Steamship Co., 17 How., 596; Hoyt v. Commissioners of Taxes, 23 N. Y., 224; Parker Mills ». Commissioners of Taxes, 23 id., 242; State v. Engle, 834 N. J , 425; Chauvenet v. Commissioners, 3 Md., 259; Hooper ». Baltimore, 12 id., 464; Whitsell ». Northampton Co., 49 Penn. St., 526; McKeen v. Same, id., 519; Union Bank ». State, 9 Yerg., 490; Conley v. Che. dic, 7 Nev., 336. A mortgage must be taxed to the owner where he lives, not where the land mortgaged is. Latrobe v. Baltimore, 19 Md., 13. Investments by residents of the state in bonds and stocks of foreign corporations may be taxed within the state. Worthington ». Sebastian, 25 Ohio St. 1. It is com- petent to provide by law for taxing shares in corporations at the place where the business is carried on. Tappan v. Merchants’ National Bank, 19 Wall., 490. 3 Witherspoon v. Duncan, 4 Wall., 210; Turner v. Burlington, 16 Mass., 208; Jones v. Columbus, 25 Geo., 610. 4Hood’s Estate, 21 Penn. St., 106, 114; Maltby o. Reading R. R. Co., 52 id., 140; State v. Falkinburge, 15 N. J., 820; Wilson v. New York, 4 E. D. Smith, 675; Hoyt v. Commissioners of Taxes, 23 N. Y., 924; People v. Ogdens- burg, 48 id., 390; Howell ». State, 8 Gill, 14; Rieman v. Shepard, 27 Ind., 288 ; Catlin». Hull, 21 Vt., 152; Blackstone Manuf. Ce. v. Blackstone, 13 Gray, 488; Leonard v. New Bedford, 16 id, 292; Steere ». Walling, 7 R. I., 317; Hart- land v. Church, 47 Me., 169; Desmond ». Machias, 48 id., 478; Mills ». Thornton, 26 Ill, 300; St. Louis v. Ferry Co., 40 Mo., 580; People o. Insur- ance Co., 29 Cal., 583; Green v. Van Buskirk, 7 Wall., 139, 150. The same is true of business carried on within a state or municipality by nonresidents. See Corficld v. Coryell, 4 Wash. ©. C., 871; Harrison v. Vicksburg, 38. & M., 581; 44 LAW OF TAXATION. (cH. II culiar. They may be taxed for their franchise, and they may al- so be taxed as persons where their business is carried on.) And as no state is under obligation to permit a foreign corporation to carry on business, or exercise franchises within its territory, the permission todo so may be granted under such restrictions, or allowed on such conditions regarding taxation as the state may think proper or prudent to impose.* Taxation and representation. There is a maxim in our government that the representatives of the people must impose the taxes the people are to pay. The form it sometimes takes is, ‘taxation and representation go together.” The maxim is famil- jar in English law, where it became established as the result of a long, and at times bloody, controversy between the representatives of the people on one side, and the crown on the other. The meaning there was the same that had been contended for in other countries; that the imposition of taxes was essentially a legisla- tive power, and the sovereign could levy none except as they were granted by the representatives of the realm. In America Worth o. Fayetteville, 1 Winst., 70; State ». City Council of Charleston, 3 Speers, 623; Padelford v. The Mayor of Savannah, 14 Geo., 438; Pearce o. Au- gusta, 37 id., 597; Shriver o. Pittsburg, 66 Penn. St., 446. Compare Bennett o. Birmingham, 31 id., 15. TPeople v. Utica Ins. Co., 15 Johns., 358, 382, per Thompson, J.; Ontario Bank o. Bunnell, 10 Wend., 186. If it is made a provision in the charter of a corporation that its shares shall be taxed at the domicile of the owner “ their taxability at such locality is annexed as an incident to the shares, and it does not matter where the domicile of the owner may be. The tax may then be enforced through the corporation, by requiring it to withhold the amount, from the dividends payable thereon.” Field, J., in Minot v. Railroad Co., 18 Wall., 206, 280. 2Ducat v. Chicago, 48 Ill., 172; Fireman’s Benevolent Association 2. Lounsbery, 21 id., 511; Fire Department of Milwaukee ». Helfenstein, 16 Wis., 186; People v. Imlay, 20 Barb., 68; opinion of Taney, Ch. J., in Bank of Augusta 0. Earle, 13 Pet., 519; Cincinnati Mutual Health Assurance Co. v. Ri s- enthal, 55 Ill., 85; Fire Department v. Noble, 3E. D. Smith, 440; Same », Wright, id., 453; Degroot ». Van Duzer, 20 Wend., 390; Commonwealth 9. Melton, 12 B. Monr., 212, 218; Tatem v. Wright, 23 N.J., 429; Paul ». Virginia, 8 Wall., 168; Liverpool Ins. Co. v. Massachusetts, 10 id. 566; Ducat o. Chicago, 10 id., 410. 3 See Clermont’s note to Fortescue’s De Laudimus, p. 28; also Bates’ Case, 2 State Trials, 371; 8. C., Broom’s Const. Law, 247; Hampden’s Case, 3 State CH. Ill.] LIMITATIONS UPON THE TAXING POWER. 45 the corresponding contest assumed a different phase, and the max- im took on a different meaning as arallying ery in the contest for independence. The American colonies insisted upon the right of the colonial legislatures to vote the local taxes; disputing any such right in the parliament of Great Britain, which was a body in which the colonists had and could have no representatives. That body, it was claimed, could legitimately exercise over them the authority only of an imperial legislature to regulate external concerns, and those of the empire at large, leaving internal con- cerns to the control of their own representatives. What the maxim really meant was, that the local legislature must make the local laws ; it was violated in the particular of taxes, and conse- quently brought that subject prominently to notice, though the principle itself was general. The same principle has sometimes been appealed to as if it meant that no person could be taxed un- less in the body which voted the tax he was represented by some one in whose selection he had a voice; but it never had any such meaning, and never could have, without excluding from taxation a very large proportion of all the property of the state. If the privilege of voting for representatives in the government were the oniy or even the principal benefit received from government, there might be the highest reason in exempting the nonvoting infant or alien from taxation ; but this privilege to any particular individu- al, as compared with the protection of life, liberty and property, 1s really insignificant. And so long as all persons cannot participate in government, the limits of exclusion and admission must always be determined on considerations of general public policy. It is not doubted that, so far as can be prudently and safely permitted, all who are to pay taxes should be allowed a voice in raising them; if for no other reason, because those they vote they will more willingly and cheerfully pay. But the maxim that taxa- Trials, 825; 8. C., Broom’s Const. Law, 806, and note, 370. Similar but less successful contests for the same principle in France and Spain are narrated by Mr. Hallam ard other writers. 1 Phe aim of all the contests from which have sprung the liberties of Eng- land and America has been to establish and defend the principle of self taxa- tion, as that which must constitute the main security against oppression. Mr. Burke insists upon this in his speech on Conciliation of America. And see Works of Madison ILI, 105. The sense of the oppression of any burden is 46 LAW OF TAXATION. [CH. II. tion and representation go together is only true when understood in a territorial sense which embraces the state at large; every per- son in the state being represented in its legislative body, and that body determining the taxation not only for the state at large, but also, within certain limits, for each division and municipality of the state. The local right is subordinate to this general authority. greatly increased if they who are to bear it, are to do so, not voluntarily but at the command of others. Locke expresses this idea when, in his Treatise on Civil Government, he says, of a burden imposed as compared to one volun. tarily assumed, that “it may be all one to the purse, but it worketh diversely to the courage.” This is well illustrated in English history ; for heavy taxation dates from the time when the right of the commons to grant the taxes became finally settled. But the chief importance in the right of those who pay taxes to vote them, consists in this: that in monarchical countries it constitutes the only substantial and continuous check upon tyranny, and in any country the only security against robbery under the forms of law. As the Spanish Cortes said in one of their remonstrances, ‘there remains no other privilege or lib- erty which can be profitable to subjects if this be taken away.” Hallam’s Middle Ages, ch. IV. The idea is well expressed by Lawrence, J., in Harward ». Drainage Co., 51 Tll., 1380. See also Gage v. Graham, 57 id., 144; People ». Hurlburt, 24 Mich. 44. It is very justly laid down that a tax law is to be so construed as to harmonize with the principle that the people are not to be taxed except with their own consent or that of officers truly representing them. Keasy v. Bricker, 60 Penn. St., 9. In Indiana it has been decided that where the boundaries of a township have been extended after it has voted aid toa work of internal improvement, the territory brought in cannot be subjected to the tax so voted. Alvis ». Whitney, 43 Ind., 83. 1In Steward v. Jefferson, 3 Harr., 338, 336, Mr. James A.“Bayard, of counsel, objected to a school district tax, voted by the inhabitants of the district, claim- ing that it was void. “ A citizen of the state who does not reside in the district may, by the act, be taxed without having the right to vote, and when he can de- rive no benefit from it; as he can neither send his own children nor other children. This violates the first principle of republican government, that, as to citizens, taxation goes with and is dependent on representation.” But the court affirmed the tax without discussion. That the property of persons who have not the right to vote is taxable, see Wheeler v. Wall, 6 Allen, 558; Smith v. Macon, 20 Ark., 17. In State o. Ross, 7 Yerg., 74,77, Catron, Ch. J., has some- thing to say about the tyranny of taxation without representation, but the case did not call for it. In Marr v. Enloe, 1 Yerg., 452, where the power to authorize a county court to levy taxes for county purposes was denied, stress was laid on the fact that the members of the court were not elected by the people. Upon the general right of the people to tax themselves through their representatives, see Pope v. Phifer, 3 Heis., 682; Sanborn v. Rice Co.,9 Minn., 278; People v. Hurlburt, 24 Mich., 44; People ». Chicago, 51 Ill, 58; People v. Batcheller, 53 N. Y., 128; State v. Leffingwell, 54 Mo., 458. It has often CH. IIL] LIMITATIONS UPON THE TAXING POWERS. AT To what extent the federal government may rightfully levy taxes in districts not represented in the federal legislature, is per- haps not entirely clear. In the District of Columbia, which by the national constitution was set apart for federal purposes and placed under the exclusive jurisdiction of congress, the power is unlimited, and whoever becomes a resident of the district must do so with the understanding that he can participate in the gov- been decided that a state may compel a municipality to tax itself for police purposes. See Taylor v. Board of Health, 31 Penn. St., 73; People ». Meha- ney, 18 Mich., 481. And for highways and other like purposes of general concern. See Harrison Justices v. Holland, 3 Grat., 247. But these subjects will be elsewhere considered. Tax laws are undoubtedly to be construed, if possible, so as not to impose taxes without the consent of the people taxed, 01 their immediate representatives: so held of a tax for military bounty pur poses. Keasy v. Bricker, 60 Penn. St.,9: and see Lexington v. McQuillan’s Heirs, 9 Dana, 518, 517; Madison Co. v. The People, 58 IIL, 456, 468; Hamp- shire v. Franklin, 16 Mass.,75, 83; Cheaney vo. Hooser, 9 B. Monr., 830; Maltus v. Shields, 2 Met, (Ky.), 5538. And we shall endeavor to show further on, that, in some cases, this assent is necessary. That a stranger, coming into a town, becomes liable to a license tax as an “inhabitant and member of the corporation,” see Plymouth ». Pettijohn, 4 Dev., 391; Whitfield v. Longest, 6 Ired., 268. “It is just that it should be so; for, as the defendant has, in the security of his property, the benefit of the night watch and of the other police establishments, he ought to contribute reasonably towards their expenses.” Per Ruffin, Ch. J., in Wilmington v. Roby, § Ired., 250, 254; and see Edenton v. Copeheart, 71 N. C., 156. In Fal- mouth ». Watson, 5 Bush, 660, 661, Hardin, J.,in discussing an act of the legislature which empowered the town of Falmouth to impose a license tax not exceeding $100 on the sale, by retail, of all spirituous, vinous or malt liquors in said town, or within one mile thereof, said: “It is insisted for the ap- pellee that the power, which this enactment purports to confer on the trustees of the town, to exact a license fee for the privilege of keeping a tavern or vending ardent spirits outside of, although near, the town limits, is within the interdiction of the fourteenth section of article 13 of the state constitution, viz.: ‘Nor shall any man’s property be taken or applied to public use with- out the consent of his representatives, and without just compensation being previously made to him.’ Had the exercise of the power complained of been the imposition of an ordinary tax merely on the property of the appellee, situ- ated within the corporate limits of the town, for municipal purposes, we should not doubt the correctness of the objection; or even if the exaction of the sum in controversy, in consideration of a trade license, had been made for local revenue purposes alone, though not in the usual form of taxation, we should regard it within the constitutional prohibition; for the legislature could not delegate to the corporation the right to cither license for compensa- tion or tax a privilege to be enjoyed beyond its limits, except a police regula 48 LAW OF TAXATION. [cH. UL ernment only to the extent that congress may permit.’ There can be no doubt also of the right of the federal government to levy stamp taxes and imposts of every description, by laws which shall have uniform operation throughout all the states and terri- tories within the jurisdiction of the general government. But taxes for territorial purposes, corresponding to the taxes which are levied by the states for state purposes, it-is theoretically at least the right of the people of the territory, when organized with a local legislature, to levy and expend for themselves. It is not to be supposed that the right will be denied by the general govern- ment, and if it should be, and the local taxes be imposed and expended by the direct interposition of congressional authority, it is not too much to say that such action would be inconsistent with the maxim of government now under consideration, whether valid in law or not.” The power not to be delegated. The power to impose taxes, like any other branch of the legislative authority, must be exer- cised by the legislature itself, and cannot be delegated to ministe- tion having reference to the comfort, safety or welfare of society within its local jurisdiction. Cooley’s Const. Lim., 577. But, in our opinion, the exac. tion of a fee of $100 for the privilege of vending ardent spirits in such prox- imity to the town as to render its exercise liable to affect the good order or peace of the local community, did not infringe any constitutional right of the appellee. The privilege granted to him was one which public policy requires should be subjected to such legal restraints and regulations as will, as far as practicable, prevent its abuse to the detriment of society. The legislature, having the general power to do this, properly delegated that power to the local government of the community immediately interested. The authority so conferred on the trustees does not appear to have been abused by an excessive or unreasonable exaction, and the rights of the appellee were certainly not in- vaded by a compulsory one.” cent acts of congress. From the nature of the case there can be no uniform rule of making the assessments.” McCurdy, J., in Coite v. Society for Savings, 82 Conn., 173, 184. CH. VI] EQUALITY AND UNIFORMITY IN TAXATION. 129 for exemption, that the inequality would be manifest! To tax all loans of money would be equal, and would enable all to adjust their rates of interest accordingly; but to tax all except those made by A., B. and C., or all but those of the inhabitants of a single city, would be unequal, and would create an invidious and unjust distinction in favor of the excepted persons, which would give them the advantage of higher net rates. The one would be taxation ; the other would be lawless exaction. This, as a general principle, is undoubted.” 'Durach’s Appeal, 62 Penn. St. 491, 494; Fletcher ». Oliver, 25 Ark., 289; State v. Parker, 82 N. J., 426, 485, per Depue, J.; Youngblood ». Sexton, Sup. Ct. Mich., Oct. Term, 1875. In the Franklin Insurance Co. ». State, 5 W. Va., 349, a tax of three per cent. on the premiums of insurance companies was held void; the constitution requiring taxation to be equal and uniform, and this tax law applying to no other class of subjects or corporations, or to individu- als. The tax seems to have been regarded as a tax on property. Surely the requirement of uniformity cannot make it essential that all persons or subjects shall be taxed, nor that all corporations shall be taxed alike. Does it mean any more than that any particular tax shall be laid equally and uniformly upon the persons or subjects within the class taxed? Would nota tax of one per cent. on the net earnings of all railrgad companies be equal and uniform ? And if this is inadmissible, how can there be any equalization of taxation, as between, for instance, the insurance company and the saloon keeper, unless everything is brought to the standard of a property tax, in which case those who ought to pay most would sometimes pay least? To determine whether a tax on insurance companies alone would be unequal or unjust, it would be necessary 10 look to the result. The tax, we must suppose, would go to in- crease the premiums, and if the community generally insured, the tax would be generally distributed through the community, and would be paid in pro- portion to the protection received. See Slaughter v. Commonwealth, 13 Grat., 767; Carter v. Dow, 16 Wis., 298. In State », Charleston, 12 Rich., 702, '732, Dunkin, Chancellor, says: “ Essential characteristics of any system of taxation, properly so called, are certainty, equality, universality. All the persons or property within a state, district, city or other fraction of territory having a local sovereignty for the purpose of taxation, should, as a general rule, consti- tute the basis for taxation.” Like language is made use of by Tuck, J., in O’Neal v. Bridge Co., 18 Md., 1, 23, and it is quite true and just where taxation by values is what the law provides for; but it has but limited application to the taxation of business in any form. That the legislature cannot designate one class of persons because of their race as special objects of taxation, see Lin Sing v. Washburn, 20 Cal., 534. 2A yvemarkable case of invidious exemption occurs in the legislation of Arkansas for 1871. A statute purporting to be passed in the interest of immi- gration and manufactures, exempts every species of manufacture and min- » . 130 LAW OF TAXATION. | CH. VI Exemptions. There are some cases in which it has been cus- tomary for the legislature to make certain exemptions, either of persons or property, from the general rule which it has prescribed on the subject of taxation. Some of these, such as the exemp- tions of household furniture, tools of trade, etc., and the limited personal property which very poor persons may be possessed of, are to be looked upon rather as being in the nature of limitations of the general rule, than as exceptions from it; the taxation is only of all that is possessed over and beyond what has been left out as absolutely needful to the owner’s support.1 The same may be said of some kinds of property, such as church property, school property, burying grounds and the like, which are by many per- sons looked upon as fit objects for the public contributions. Implied exemptions. Some things are always presumptively exempted from the operation of general tax laws, because it is- reasonable to suppose they were not within the intent of the legislature in adopting them. A state may, if the legislature see ing—the capital employed therein, the property used therefor, and the pro. ductions while in the ownership and possession of the original manufacturer or miner— from all taxation for a period of five years. Had the act stopped here, a question might possibly be made whether the exemption was unjust. It might be contended that releasing the manufacturer from taxation while leaving competition open would be likely to reduce prices in proportion as the cost of production was diminished by the exemption. But the legisla- tion referred to went on to provide that no corporation or individual should have the benefit of the act whose productions should not average $900 per month. In other words, it exempted all the large manufacturers, but left the smaller ones not only taxed as before, but compellable also to share with the rest of the community in making up to the state what would he lost by not taxing the others. If anything could add to the injustice of an exemption of a portion only of those engaged in a particular business, it would be that the discrimination was made against the very class that the policy of the law is thought to favor; namely, the men of small means. It was decided in Nashville v. Althorp, 5 Cold., 554, that where a merchant’s privilege is taxed, discriminations can not be made: e. g., between those living within and those without a city. Compare Robinson ». Charleston, 2 Rich., 317. 1«T do not well perceive what definition can well be given to the words ‘taxable property,’ unless they be made to mean all property not exempted by law from taxation.” Harper, Ch. J., in City Council v. St. Philip’s Church, 1 Mc- Mul. Eq., 189, 144. See Martin ». Charleston, 18 Rich. Eq., 50, 52; Levy o Smith, 4 Fla, 154. CH. VI.] EQUALITY AND UNIFORMITY IN TAXATION. 131 fit, tax all the property owned by its municipal divisions; but to do so, would render necessary new taxes to meet the demand of this tax, and thus the public would be taxing itself in order to raise money to pay over to itself, and no one would be benefited but the officers employed. It is always to be assumed that the general language of statutes is made use of with reference to taxable subjects, and the property of municipalities is not in any proper sense taxable. It is, therefore, by clear implication ex- cluded.* It is not, like government agencies, excluded from the power of tax laws, but it is beyond the grasp of their intent. 1 People v. Salomon, 51 Ill., 87; Directors of the Poor v. School Directors, 42 Penn. St, 21, 25 (case of poor house); State v. Gaffney, 84 N. J., 183 (case of city water works and land acquired therefor). And see People v. Doe, 36 Cal., 220; People v. Austin, 47 Cal., 853; Gibson v. Howe, 87 Iowa, 168; Trustees of Industrial University ». Champaign County, Sup. Ct. IIL, 1875, 7 Chicago Legal News, 160 (case of property conveyed to trustees in trust for a state educational institution). In Louisville » Commonwealth, 1 Duvall, 295, 296, the following language is made use of by Robertson, J., the question being whether property belonging to the city of Louisville was taxable for state purposes: “A general law concerning persons may include artificial as well as natural persons, and every corporation is a legal person. Even the United States and every separate state, and every county in each state, are quast corporations, and each of all such corporations is in law a person. And, consequently, a tax on the real estate of all persons would, without qualification or exception, literally include that of every corporation, muni- cipal as well as private. But in this respect there is an obvious and essential distinction between municipal and private corporations. A private corpora- tion, like a bank or railroad or turnpike, is, in technical language, altogether personal. But a municipal corporation, like a state, 1 county or the city of Louisville, is much more than a person. While nominally a person, it is vitally a political power, and each in its prescribed sphere is ¢mpertum in émperto. Sacramento v. Crocker, 16 Cal., 119. 6 Wilson v. Supervisors of Sutter, 47 Cal., 91. (Case of a levee tax.) 7People v. Central Pacific R. R. Co., 43 Cal., 898. As to equality in taxa- -tion, see further, Beals v. Almador Co., 85 Cal., 624; Chambers ». Satterlee, 40 id., 497. 8 Livingston v. Albany, 41 Geo., 21. 9Burch v. Savannah, 42 Geo., 596; Bobler v. Schneider, 49 id., 195; Home Ins. Co. ». Augusta, 50 id., 5380. 134 LAW OF TAXATION. [cH. VL vested with power to assess and collect taxes for eorporate pur- poses, such taxes to be uniform in respect to persons and property within the jurisdiction of the body imposing the same.” As to these provisions it has been decided that they ‘ were manifestly inserted in the fundamental law for the purpose of insuring equality in the levy and collection of the taxes to support the gov- ernment, whether levied for state, county or municipal purposes. The design was to impose an equal proportion of these burthens upon all persons within the limits of the district or body imposing them. Under these provisions the legislature has no power to ex- empt or release a person or community of persons from their pro- portionate share of these burthens. Not having such power them- selves, they are unable to delegate such power to these inferior bodies.” ? These provisions preclude discrimination in favor of or against any classes of property or persons whatsoever ;* they re- quire the taxation of loans or any other credits, these being prop- erty as much as lands or chattels in possession ;* they do not ad- ' Walker, J.,in Hunsaker v. Wright, 30 Ill, 146, 148. See Trustees v. Mc- Connell, 12 id., 188; O’Kane ». Treat, 25 id., 557, 561; Madison County »v. People, 58 id., 456; Dunham 2. Chicago, 55 id., 357. * Primm 2. Belleville, 59 Ill., 142; discrimination ¢n favor of improvements and of personalty; Bureau County ». Chicago, etc., R. R. Oo., 44 id., 220; Chicago, etc., R. R. Co. v. Boone County, 44 id., 240; discrimination against railroad property. : 3 Trustees v. McConnell, 12 I11., 188. In People v. Worthington, 21 id., 171, 173, Caton, Ch. J., states the rule strongly and clearly: “The constitution means as it declares, that each shall pay a tax in proportion to the property which he has, whether that property consists of farms or mortgages; of visi- lc substances or choses in action. Itis not to be denied that this rule of taxation must in some, nay in many instances, operate unequally and even oppressively; and such may be the case of the defendant here. He sellsa piece of land and gives a deed, and takes a note and a mortgage to secure the purchase money. He is taxed for the amount due on the mortgage, and the purchaser is taxed for the land, and if the purchaser neglects to pay these taxes, then the seller must do it himself or lose his security. This is a hardship no doubt, but like many other hardships which befall mankind, it results from the failure of another to perform his duty, and must be provided against by grea er cautio. in selecting a purchaser, or in seeking satisfaction of him for the taxes paid on the land. It may be true in one sense to say that it is double taxation to tax the horse which is sold and also the note which is given for the purchase money; and so is it to tax the note which is given for one hundred dollars borrowed money, and also the money which is bor- CH. VL] EQUALITY AND UNIFORMITY IN TAXATION. 185 mit of residents in one part of a road district being exempted from taxes for the roads in another part ;1 nor of one class of counties being taxed a higher rate for state purposes than another class which happens to be more largely indebted for local purposes ; ? rowed; and so we might go on throughout the whole system of human trans- actions which involves a credit for things tangible which are within the state and subject to taxation; and even so it is if they are beyond the state, for the presumption is that they are taxed wherever they may be. Whatever rights, credits or choses in action which may be taxed, are so much over and above the money and other physical objects within the state, and are in the same sense double taxation; for those very credits must ultimately be paid with those physical objects if they are ever paid. * * Although we might think that the provisions of the constitution on the subject of taxation are unjust and unequal, or even arbitrary and oppressive, neither the legislature nor the courts can, for any such reason, disregard them.” 10’Kane v. Treat, 25 I1L, 557. The exemption was of residents within a municipal corporation from being taxed for roads beyond its limits but within the same road district. Compare Pleasant v. Kost, 29 Ill, 490, 494; Madison County »v. People, 58 id., 456. *?Ramsey v. Heeger, Sup. Ct. Tll., 1874; 6 Chicago Legal News, 318. The case was one of an attempt, indirectly, to saddle upon the state the local in- debtedness incurred in the aid of railroads. One important question under the provisions of the constitution of Illinois regarding taxation must be considered as stillopen. The constitution of 1870 declares that “the general assembly shall provide such revenue as may be need- ful by levying a tax by valuation so that every person and corporation shall pay a tax in proportion to his, her or its property, * * * but the general assembly shall have power to tax * * * persons or corporations owning or using franchises and privileges in such manner as it shall from time to time direct by gencral law, uniform as to the class upon which it operates.” In as- sumed execution of this authority, the legislature of 1873 passed an act provid ‘ing as follows: “The capital stock of all companies, now or hereafter cre- ated under the laws of this state shall be so valued by the state board of equalization as to ascertain and determine respectively the fair cash value of such capital stock, including the franchise, over and above the assessed value of the tangible property of such company or association. Said board shall adoptsuch rules and principles ‘or ascertaining the fair cash value of such cap- ital stock as to it may seem equitable and just, and such rules and principles, when so adopted, if not inconsistent with this act, shall be as binding and of the same effect as if contained in this act, subject, however, to such changes, alterations or amendments as may be found from time to time to be necessary by said board; provided, that in all cases where the tangible property or capi- tal stock of any such company or association is assessed under this act, the shares of capital stock of any such company or association shall not be as- sessed in this state.” Under this law the state board of equalization adopted the following resolution: 136 LAW OF TAXATION, [CH. VI but they do not preclude taxes being laid on other subjects than property by some other standard than that of value, and conse- “ Resolved, That for the purposes of ascertaining the fair cash value of the capital stock including the franchises of all companies and associations, now or hereafter created under the laws of this state, or for the assessment of the same, or so much thereof as may be found to be in excess of the assessed or equalized value of the tangible property of such companies and associations, respectively, we, the state board ot equalization, hereby adopt the following rules and principles, viz: “1. The market or fair cash value of shares of capital stock, and the market or fair cash value of the debt, excluding indebtedness for current expen- ses, shall be combined or added together, and the aggregate amount so ascer- tained shall be taken and held to be the fair cash value of the capital stock, in- cluding the franchises, respectively, of such companies and associations. “2. From the aggregate amount, ascertained as aforesaid, there shall be deducted the aggregate amount of the equalized or assessed valuation of all the tangible property, respectively, of such companies and associations; such equalized or assessed valuation being taken in each case, as the same may be determined by the equalization or assessment of property by the board, and the amount remaining in each case, if any, shall be taken and held to be the amount and fair cash value of the capital stock, including the franchise, which this board is required hy law to assess, respectively, against companies and corporations now or hereafter created under the laws of this state.” The supreme court of the state sustained this assessment, not, however, pass" ing upon the question of its fairness or justice, which they expressly disclaimed the right to do, but conceding to the state board of equalization the right to arrive at the valuation by any such rules as they should devise, which seemed to them calculated to reaeh the proper result. As the assessment made under these rules would be of the whole value of the franchise as if no indebtedness exis- ted, there would manifestly be in the case what would be equivalent to double taxation; but as in valuing individual property under the laws of Illinois, debts are not deducfed, this was no more than would exist in other cases,. and the court attach importance to this fact as bearing upon the competency of the board to establish such rules. It is to be observed, however, that the law provided for assessing “the fair cash value of such capital stock includ- ing the franchise.” A franchise may have a distinct value by itself irrespect- ive of any debts that may be owing by the corporation or person possessing it, as a farm may have irrespective of the mortgage upon it; but there is cer- tainly some difficulty in understanding how the capital stock of a corporation can be valued without taking into account its indebtedness, or how, if the corporation owes so much that its capital stock is absolutely worth nothing, and could be sold for nothing, it could have for any legal purpose a “ fair cash value” given it by taking as the measure of its value that which ren- ders it valueless. It may be that if, by enforcing the debt, the capital stock should become the property of the creditors, it would then have a value equal to the previous value of the debt; but this would be by the substitution of OH. VI] EQUALITY AND UNIFORMITY IN TAXATION. 187 quently, taxes on polls are not unconstitutional.! Neither do they take from the legislature the power to commute for taxes, re- ceiving instead what they shall regard as an equivalent.” Indiana. The constitution provides that “the general assem- bly shall provide by law for a uniform and equal rate of assess- ment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, both real and personal, excepting such only for municipal, educational, literary, scientific, religious or charitable purposes as may be specially ex- empted by law.” It also provides that “the general assembly shall not pass local or special laws” ‘for the assessment and col- lection of taxes for state, county, township or road purposes.” Of these provisions it has been said, they ‘‘do not prohibit local taxation for objects in themselves local. They require a general, uniform levy for state purposes, but they do not forbid local tax- ation under general laws. Nor do we think they prohibit indirect taxation by way of licenses upon particular pursuits, etc. Such indirect taxation may be made effectual as a police regulation. The taxing, which is a part of the legislative power of the state, is supreme, except where limitations are imposed. Indirect taxa- tion, by way of tariffs, etc., has ever been regarded a legitimate exercise of the taxing power, and we do not think a provision in the constitution requiring the general levy of direct taxes for state purposes to be upon a uniform assessment, implies a pro- hibition of ull other taxation..: Such, at all events, is not the conventional force of its language.’’® one thing of value for another. Before that time, certainly, the debt is no part of the capital stock. In these remarks no question is made of the correctness of the decision of the supreme court, which is certainly able and plausible. The opinion is given in full in 6 Chicago Legal News, 319. The federal circuit court for the same circuit held the assessment void, and it is believed the question is now in the United States Supreme Court. 1 Sawyer v. Alton, 3 Scam., 127. This case arose under an earlier constitu. tion, but the provisions were substantially the same. 2Tllinois Central R. R. Co. o. McLean County, 17 Ill., 291, where an ad va- Jorem tax was commuted for a percentage of gross receipts. And see State Bank ». People, 4 Scam., 303; Hunsaker v. Wright, 30 IIl., 146. 8 Perkins, J., in Anderson v. Kerns Draining Co., 14 Ind., 199, citing La Fay. ette v. Jenners, 10 id., 70, 75; The Bank v. New Albany, 11 id., 189; Walk. Am. Law, 3d ed., p. 122; Aurora v. West., 9 Ind., 74. To the same effect is 188 LAW OF TAXATION. [cu. VL Nor do these provisions require the rate of assessment to be equal for all purposes throughout the state, but only to be equal and uniform throughout the district for which the tax is levied.’ Nor do they preclude the legislature making exemptions,” but they do preclude the levy of a specific tax on one species of property for any public purpose; for example, a specific tax by the acre on real estate for highway purposes. Jowa. The constitution provides that “the property of all cor- porations for pecuniary profit, now existing or hereafter created, shall be subject to taxation the same as that of individuals.” This provision would preclude exemptions of corporate property from taxation, and consequently would require the court, in any doubtful case, to construe a revenue law as not intending such an exemption. Louisiana. A provision that “taxation shall be equal and uni- form throughout the state” will not preclude the legislature au- thorizing the taxation of callings, trades and professions. The taxation will be equal and uniform if all persons in the same calling, trade or profession within the taxing district are taxed alike.® But it would preclude a discrimination as between those carrying on the same business,’ and it would preclude a specific Bright v. McCullough, 27 Ind., 228, in which the authorities are reviewed by Elliott, J. 1 Adamson o. Auditor of Warren County, 9 Ind., 174; Conwell v. O’Brien, 11 id., 419; Covington Drawbridge Co. ». Auditor of Warren County, 14 id., 331; Bright v. McCulloch, 27 id., 223. ? Bank of the State ». New Albany, 11 Ind., 189. See Bank of Conners- ville ov. State, 16 id., 105; King v. Madison, 17 id., 48. ? Bright 0. McCullough, 27 Ind., 228. 4Towa Homestead Co. v. Webster County, 21 Iowa, 221. If we understand correctly the case of Dubuque, etc., R. R. Co. v. Webster County, 21 id., 285, the provision above quoted would not prevent a taxation of corporations on their gross receipts in lieu of taxation on property. 5 Municipality o. Dubois, 10 La. An., 56; New. Orleans v. The Bank, id., 785; New Orleans ». Staiger, 11 id., 68; New Orfeans ». South Bank, id., 41; New Orleans v. Turpin, 13 id., 56; Merriam v. New Orleans, 14 id., 818; State ». Volkman, 20 id., 585; Hodgson v. New Orleans, 21 id., 801. The doctrine ap- plied to the case of license fees for theatrical and other exhibitions. Charity Hospital v. Stickney, 2 id., 550; Municipality 0. Duncan, id., 182. 6 New Orleans v. Home Ins. Co., 28 La. An. 449. CH. VIL] EQUALITY AND UNIFORMITY IN TAXATION. 139 tax on any species of property, the value of which is not uni- form, as, for example, a specific tax on cotton by the pound.? Maryland. The constitution ordains that “the county com- missioners shall exercise such powers and duties only as the legis- lature may from time to time prescribe; but such powers and du- ties, and the tenure of office shall be uniform throughout the state.” Where the legislature made provision by law for the levy of a tax, by the county commissioners of a single county, for the support of public schools therein, the objection to this legislation, that it gave powers to and imposed duties on the com- missioners of that county which were peculiar and exceptional, was held not to be well taken. It was not the purpose of the constitution that all local regulations should be the same in all parts of the state, or that every locality should levy taxes for the same objects and no others, or that the county commissioners should exercise their uniform powers on precisely the same sub- jects. And this legislation was not to be regarded as giving ex- ceptional authority, but as requiring a special exercise, in one county, of the uniform power to tax which the commissioners possessed in all the counties.* 1Sims ». Jackson, 22 La. An., 440. See Livingston ». Albany, 41 Geo., 21, for the same principle. Also, State v. Endom, 23 La. An., 663, in which it was decided that a specific tax on drays, wagons, carriages, etc., in proportion to the number of animals drawing them, was forbidden as not being a uni- form tax on the business which was taxed. A law which should make no dis- crimination in the taxation of business, we should say would in some cases, produce the grossest injustice and inequality; and it may be seriously ques- tioned whether the requirement of uniformity in the taxation of business could be understood as forbidding the classification of those engaged in the business; for example, underwriters, by the business done or premiums re- ceived; merchants, by the capital invested or sales made, etc.; and the appor- tionment of taxes accordingly. 2 Bowie, Ch. J., in Commissioners of Public Schools 2. Commissioners of Allegany County, 20 Md., 449, 457, 458. As the decision is of very general application, we copy from it: “Tt is said, there is no law conferring on the commissioners of the counties generally, power to make provision for public schools, and therefore the act of Allegany county is special, local, unequal, contrary to the letter and spirit of the constitution, which designed that all parts of the state should be sub- ject to the same taxation for the same objects. “When the organic law imposed this feature of uniformity upon county commissioners and other county officers, it cannot be supposed it was designed 140 LAW OF TAXATIO... [cH. VI. Massachusetts, The constitutional provision that the legislature shall only impose proportional and reasonable taxes is not violated by permitting a town in which a state agricultural college is located, to levy a tax to pay an exceptional portion of the cost of erecting buildings for such college. Michigan. The provision that ‘the legislature shall provide a uniform rule of taxation, except on property paying specitic taxes, and taxes shall be levied on such property as shall be pre- to ignore the varieties of situation and condition of the people of the several counties, and the different institutions established among them. The levy courts for which the county commissioners were substituted, had exer- cised, from the organization of the state government, the power of levying taxes for every local purpose which the peculiar wants of each county might require, under the sanction of general or special acts of legislation. “The legislation of the state exhibits various systems of internal regulation in respect to roads, schools, paupers and criminal trials, in the several coun- ties, all of which ultimately involve the exercise of the power of taxation. Some of these systems, since the adoption of the new constitution, have been codified as part of the public local law of the state. Ifthe position assumed in this case be correct, the laws requiring provision for the support of the poor, repairs of county roads, or the support of paupers, which are not uni- form throughout the state, and require the levying of taxes for such purposes, are ¢pso facto void, because not within the powers legitimately granted by the constitution. “Uniformity of power does not necessarily imply identity of purpose or ob- ject. The difference between power and object is, that the one is an attribute, faculty or means; the other an end or fact to be accomplished. Power is general, object is special. As in mechanics, the motive power may be applied to an almost infinite variety of uses; so in politics, the power of taxation, which is the great motor of government, may be exercised for the promotion of every object of society, among the chief and noblest of which is, the diffusion of knowledge and’ the education of the people. “The ‘power to levy all needful taxes, and to pay and discharge all claims on or against the county which have been expressly or impliedly authorized by law’ (conferred by art. 28, § 8, Code of Maryland), conveys authority and imposes the duty of providing for any local object sanctioned by the legisla- ture. * * In this instance, the commissioners of the county are not left to inference as to their duty and obligation to exercise the power of taxation, but are expressly enjoined to exert it for the must salutary pub- lic purposes. The power here called into requisition is uniformly vested in the commissioners of all the counties in the state, as is indicated in the public general laws. Its application to various specific objects is shown by the public local laws.” 1 Merrick o. Amherst, 12 Allen, 498. CH. VI! EQUALITY AND UNIFORMITY IN TAXATION. 141 ? scribed by law;” also that ‘all assessments hereafter authorized - shall be on property at its cash value,” do not preclude a taxation of business as such, although the property employed in the busi ness is also taxed. Minnesota. The constitution provides that “all property on which taxes are to be levied shall have a cash valuation, and be equalized and uniform throughout the state.” It is not compe- tent where equality and uniformity are required to impose a tax exclusively upon one subdivision of the state to pay a claim or indebtedness which is not peculiarly the debt of such subdivision, or to raise money for any purpose not peculiarly: je@pficial to such subdivision.” — Aftssourt. A constitutional requirement that meee shall be uniform, and shall be levied on property in proportion to its value, is not violated by the taxation of income and salaries, The pur- pose of it is to make the burdens of government rest on all prop- erty alike; to forbid favoritism and prevent inequality. Outside of this constitutional restriction, the legislature must be the sole judge of the propriety of taxation, and define the sources of rev- enue as the exigencies of the occasion may require, A 1 Walcott v. People, 17 Mich., 68; Kitson ». Ann Arbor, 2' i d., 825. 2 Sanborn o. Rice, 9 Minn., 278. That the provision se preclude penal- ties for failure to list property for taxation, see McCormick yj Fitch, 14 id., 262. 3 Glascow v. Rouse, 48 Mo., 479, 489. There is a summary of the doctrine of the courts in this case by Wagner, J., which is ee being copied at length: bak . ‘ “That taxes should be uniform, and Jevied in proportio& to the value of the property to be taxed, is so manifestly just that it commends itself to universal assent. But, notwithstanding the constitutional provision, there are some kinds of taxes that are not usually assessed according to the value of property, and some which could not be thus assessed; and there is perhaps not a state in the Union, though many of them have in substance the same constitutional provision, which does not levy other taxes than those imposed on property. “Every burden which the state imposes upon its citizens with a view to revenue, to carry on the operations of the state government, or for the support of municipal corporations, is a branch of the power of taxation, whether im- posed under the name of a tax or some other designation. The license fees which are sometimes required of those who pursue particular employments are, when imposed for revenue, taxes. Lawyers and physicians may be com- pelled to pay a license for practicing their professions, for the purpose of rev- enue; and although not levied on property, it is still a tax. Stamp duties are 142 LAW OF TAXATION. [CH. VI. Ohio. The constitution provides that “laws shall be passed taxing by a uniform rule all moneys, credits, inve-tments in bonds, stocks, joint stock companies or otherwise; and also all real and personal property according to its true value in money ; taxes. It is customary to require that corporations shall pay a certain sum annually, in proportion to their capital stock paid in, or by some other stand- ard, which is generally fixed for mere convenience. It therefore seems plain that the constitutional requirement that ‘taxation upon property shall be in proportion to its value,’ does not include every species of taxation; nor, in- deed, would it be possible to place such an interpretation upon it without doing the grossest injustice. ‘A very larg portion of revenue is derived from other sources than a direct levy on property, and the doctrine contended for would release the former and tltrow the whole burden upon the latter. In cases of municipal corporations, aWifferent construction has always prevailed. Assessments for the opening, making, improving, or repairing streets, the draining of swamps, the throwing up of levees, and the like local works, have been usually made upon property with some reference to benefits which it was supposed the property would receive. “The requirement that property should be taxed in proportion to its value, applies as much to these local assessments as any other species of taxcs. The local authorities have only such power as is delegated to them by the state, and the state can confer no power against the prohibitions of the coastitution. ““There are three general classes of direct taxes: capitation, having effect solely upon perggns; ad valorem, having effect solely upon property; and in- come, having a iized effect upon persons and property. “The argument of the plaintiff's counsel proceeds on the hypothesis that every species of tax comes within the constitutional prohibition. This isa mistake. The whole practice of the state has been different, and it has never been challenged, dor could it be, on legal principles. The statutes provide for a poll tax, which, is in violation of the ad valorem rule, and is unequal, yet it is clearly within the constitution. A license is imposed upon shows, peddlers, auctioneers, dram shops and billiard tables, all of which taxes are in violation of the ad valorem principle, but not therefore unconstitutional. The taxes im. posed are uniform as to the particular classes, but not in proportion to the taxes assessed on other property. “The constitution enjoins a uniform rule as to the imposition of taxes on all property, but does not abridge the power of the legislature to provide for a revenue from other sources. It was intended to make the burdens of gov- ernment rest on all property alike — to forbid favoritism and prevent inequal- ity. Outside of the constitutional restriction, the legislature must be the sole judge of the propriety of taxation, and define the sources of revenue as the exigency of the occasion may require. The income tax was uniform and equal as to the classes upon which it operated; it did not come within the meaning of the term ‘property,’ as used and designated in the constitution, and I think it was not in conflict with any provision of that instrument.” CH. Vi.] EQUALITY AND UNIFORMITY IN TAXATION. 143 but burying grounds, public school houses, houses used exclu- sively for public worship, institutions of purely public charity, public property used exclusively for any public purpose, and per- sonal property to an amount not exceeding in value two hundred dollars for each individual, may, by general laws, be exempted from taxation,” etc. This provision renders it imperative that all the property of which exemption is not permitted by it shall be taxed, and precludes any other exemptions than those indicated, as well when the tax isfor a municipal purpose as when it is levied for a state purpose. It also precludes the debts of the tax payer being deducted from the value of his property ; this being inconsistent with the requirement that al? property shall be taxed.? But it does not preclude the taxation of business, as such, the licensing of stores, etc.? Tennessee. A constitutional provision that “all property shall be taxed according to its value,” and that ‘‘no one species of property from which a tax may be collected shall be taxed 1 Zanesville v. Richards, 5 Ohio, N.8., 589. See Hill ». Higdon, 5 id., 243, 246. Inthe case first cited Ranney, Ch. J., says: ‘ Before the adop- tion of the present constitution, the whole matter of taxation was commit- ted to the discretion of the general assembly. It might be levied upon such property and in such proportion, as the body saw fit. The right to make ex- ceptions and exemptions, was unquestionable. But this discretion no longer exists. The public burdens are made to rest upon the property of the state, and whenever money is to be raised by taxation, the positive injunction is, that ‘laws shal] be passed, taxing by an uniform rule, all moneys, credits, in- vestments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true valuein money.’ With- out express authority of law, no tax, either for state, county, township or cor- poration purposes can be levied, and we see no reason to doubt that this sec- tion of the constitution is equally applicable to, and furnishes the governing principle for, all laws authorizing taxes te be levied for either purpose. The great object of the provision was to secure equality and uniformity in the im- position of these public burdens. The convention was very well aware that much the largest part would be required to answer the purposes of these local subdivisions; and equally well that it could only be levied as the gen- eral assembly should provide.” 2 Bank of Columbus »v. Hines, 3 Ohio, N.8.,1. Obligations for the pay- ment of money are to be taxed by value, and if of no value, are not taxable. Id. 8 Baker »v. Cincinnati, 11 Ohio, N. 8., 534. 144 LAW OF TAXATION. [cH. VI. higher than any species of property of equal value,” has no reference to the taxation of privileges, and such taxation is in the discretion of the legislature. It is therefore competent to authorize a town to levy license taxes on the various occupations carried on therein. Virginia. The requirement that taxation shall be equal and uniform does not preclude the state from authorizing a county to levy a tax on acounty office,” nor does it require the license taxes on privileges or occupations to be equal or uniform.’ On this last point the decision in West Virginia is to the contrary.* Wisconsin. The constitutional provision that “the rule of tax- ation shall be uniform” extends to taxation by cities, towns and counties, as well as that levied by the state.’ It does not pre- clude license taxes under the police power. And the state hay- ing for a long period been in the practice of collecting specific taxes from corporations in lieu of the taxes on property levied gen- erally, it was decided against the opinion of the judges, that such specific taxes were not in violation of the constitutional re- quirement of uniformity." The general right to make exemptions. It remains to see what is the rule regarding exemptions, where none is prescribed by the state constitution. 1 Adams v. Somerville, 2 Head, 368; State ». Crawford, 2 id., 460. 2 Gilkerson ». Frederick Justices, 18 Grat., 577. See also Gordon’s Execu- tors v. Baltimore, 5 Gill, 231. Compare Camden & Amboy R. R. Co. v. Hille- gas, 18N.J.,11; Same v. Commissioner of Appeals, 18 id.,71, and Gardner o. State, 21 id., 557, in which a provision in a charter that the corporation should pay a certain tax, “and no other tax or impost shall be levied or as- sessed’ upon it, was held to apply to county and town taxes as well as those imposed for state purposes. 3 Slaughter v. Commonwealth, 13 Grat., 767. 4 Franklin Ins. Co. v. State, 5 W. Va., 349. This case is referred to, ante, p 129. * Knowlton v. Supervisors of Rock Co., 9 Wis., 410; Hale ». Kenosha, 29 id., 599; Gilman v. Sheboygan, 2 Black, 510. § Carter v. Dow, 16 Wis., 298 (dog license); Tenney v. Lenz, id.,566; Fire Department v. Helfenstein, id., 186. ™ Kneeland v. Milwaukee, 15 Wis., 454, overruling Attorney General ». Plankroad Co., 11 id., 35. CH. V1} EQUALITY AND UNIFORMITY IN TAXATION. 145 The exemptions commonly made by express statute are based upon reasons so forcible that they have seldom been contested. We refer now to the exemptions of tools of trade; of the limited personal property of very poor persons; the property of corpora- tions or associations devoted exclusively to the work of public charity, or in other directions where what they accomplish ope- rates in the relief of public burdens, and the like. Exemptions of the property of religious societ es, and of persons or corporations engaged in instruction, have not passed unchallenged on the score of right and policy ; but the power to make them is unquestioned. And upon the general subject of exemptions, the following rules are deduced from the authorities: 1. The general right to make exemptions is involved in the right to apportion taxes, and must be understood to exist wher- ever it is not forbidden.1 The right is supposed to be exercised on reasons of state policy, and presumptively such exemptions contribute to the general public benefit.” 2. Exemptions thus granted on considerations of public policy, may be recalled whenever the legislative view of public policy shall have changed. To the individuals, corporations or associa- tions benefited by them, they are to be regarded as favors or privileges merely, to continue during the pleasure of the sover- eignty, and there can be no breach of faith —certainly no want of power—in terminating them at any time. Cases illustrative of this principle are cited on a previous page.® 1Butler’s Appeal, 73 Penn. St., 448. See People v. Colman, 4 Cal., 46; State ». North, 27 Mo., 464; Hill o. Higdon, 5 Ohio, N. S., 243; State o. Parker, 33 N. J., 812; Indianapolis ». Sturdevant, 24 Ind., 391. 2 The homestead is sometimes exempted, and when it is, if it is taxed with the tract of which it forms a part, the sale of the whole for taxes is void. Penn v. Clemans, 19 Iowa, 372, 374; Stewart v. Corbin, 25 id. 144. An ex emption from taxation of all property employed in manufactures, was assumed to be valid in Gardiner C. & W. Factory Co. v. Gardiner, 5 Greenl., 183. New York once had a statute which exempted from taxation the buildings, ma- chinery and manufactured articles in the hands of the manufacturer of every cotton, woolen or linen manufactory within the state. Sce Columbian Manf. Co. v. Vanderpool, 4 Cow., 556. Such exemptions are much less questionable and much less pernicious than would be an exemption of the property of a portion only of those engaged in a particular manufacture, leaving those with whom they would compete to pay taxes. 3 Ante, p. 54. See in addition to cases there cited, Hospital ». Philadelphia, 10 146 LAW OF TAXATION, [cH. VI. 3. The intention to exempt must in any case be expressed in clear and unambiguous terms; taxation is the rule, exemption is the exception." 4. All exemptions are to be strictly construed. They embrace only what is within their terms. This general rule bas many 24 Penn. St. 229; Commonwealth v. Fayette, etc, R.R.Co., 55 id., 452; Brewster 0. Hough, 10 N. H., 188; St. Joseph v. Railroad Co., 39 Mo., 476; State ». Dulle, 48 id., 282; Tomlinson v. Jessup, 15 Wall., 454. When officers have power by law to make exemptions in special cases, if they refuse to make one, the party concerned is without remedy unless an appeal is given by law. Clinton School District’s Appeal, 56 Penn. St., 315. Such a power is only admissible where an examination into facts is essential in order to determine whether the case is within the general rule of exemption which is prescribed by law. A general power te exempt property from taxation cannot be con- ferred by the legislature even upon a municipal corporation. Brewer Brick Co, v. Brewer, recently decided by the supreme court of Maine. 1 See ante, pp. 52-56, and cases cited in the notes. “ Taxation is an act of sov- ervignty to be performed, so far as it conveniently can be, with justice and equality to all. Exemptions, nv matter how meritorious, are of grace, and must be strictly construed.” This was said in a case where the court felt compelled to hold that a married woman was subject to a tax for the raising of bcunty moneys, though her husband was actually in the military service. Crawford v. Burrell, 53 Penn, St., 219, 220. See also Lord Colchester o. Kewney, Law R.,1 Exch., 868; Platt v. Rice, 10 Watts, 352; Providence Bank ». Bil- lings, 4 Pet., 514; Minot v. Philadelphia, etc., R. R. Co., or The Delaware Rail- road Tax, 18 Wall. 206; Trask v. Maguire, id., 391; Gordon ». Baltimore, 5 Gill, 281; Howell v. Maryland, 3 id., 14; Baltimore v. State, 15 Md., 376; Hannibal, etce., R. R. Co. v. Shacklett, 80 Mo., 550; Washington University ». Rouse, 42 id.. 308; Pacific R. R. Co. v. Cass County, 53 id., 17; Stewart v. Da- vis, 8 Murphy, 244; State v. Town Council, 12 Rich. Law, 339; Anderson 2. State, 28 Miss., 459; B. & O. R. R. Co. v. Marshall County, 3 W. Va., 319; Same v. Wheeling, id., 372; State 0. Bank of Smyrna, 2 Houston, 99; Muni- cipality ». Railroad Co..10 Rob. (La.), 187; Louis, Canal Co. 0. Commonwealth, 7B. Monr., 160; St. Peters Church v. Scott County, 12 Minn., 395; Portland, S. & P. R. R. Co. v. City of Saco, 60 Me., 196; State », Parker, 82 N. J., 426; Hart v. Plum, 14 Cal., 148; People ». Whyler, 41 id., 351; Biscoe ». Coulter, 18 Ark., 428; IIurvard College v. Boston, 104 Mass., 470, 475; Orr v. Baker, 4 Ind., 86; City of Indianapolis v. McLean, 8 id., 328; City of Madison ». Fitch, 18 id., 83; Methodist Church v. Ellis, 38 id..8; Washburn College o Shawnee County, $ Kans., 344; Vail v. Beach, tO id., 214; St. Mary’s College v. Crowl, 10 id., 442; Miami County v. Brackenridge, 12 id., 114; No. Mo. R. BR. Co. v. Maguire, 20 Wall, 46. A general law on the subject of taxation, manifestly intended asa revision of all laws on the subject, operates to repeal the previous exemptions which it does not in terms renew. Columbian Manf. Co. v. Vanderpool, 4 Cow., 556; Fox’s Adm’rs ». Commonwealth, 16 Grat., 1. CH. VI.] EQUALITY AND UNIFORMITY IN TAXATION. 147 illustrations, one of the most striking of which is found in the case of exemption of church and school property. The general exemption of such property from taxation, it is held, will not exempt them from special assessment for local improvements, such as the paving and repair of the streets on which they stand, and the like. In the leading case, the words of the exemption were, that no church or place of public worship “should be taxed by any law of this state.” Upon this the court remarked: ‘The word taxes means burdens, charges or impositions, put or set upon persons or property for public uses; and this is the definition which Lord Coke gives of the word talliage, 2 Inst., 232; and Lord Holt in Carth., 438, gives the same definition in substance of the word tax. The legislature intended by that exemption to relieve religious and literary institutions from these public bur- dens, and the same exemption was extended to the real estate of any minister not exceeding in value fifteen hundred dollars. But to pay for the opening of a street in the ratio of the benefit or advantage derived from it is no burden. It is no talliage or tax within the meaning of the exemption, and has no claim upon the public benevolence. Why should not the real estate of a minister as well as of other persons pay for such an improvement in proportion as it is benefited? There is no inconvenience or hardship in it, and the maxim of law, that qui sentit commodum debet sentire onus, is perfectly consistent with the interests of science and religion.” And yet these assessments are a legal exer- 'Matter of Mayor, etc., of New York, 11 Johns., 77; Bleecker v. Ballou, 3 Wend., 263; Chegaray ¥. Jenkins, 3Sandf., 409; People ». Roper, 35 N. Y., 629; Buffalo City Cemetery v. Buffalo, 46 id., 506; Northern Liberties . St. Johns Church, 13 Penn. St., 104; Crawford v. Burrell, 53 id., 219, 220; Second Uni- versalist Society ». Providence, 6 R. I., 285; Matter of College St., 8 id., 474; Patterson ». Society, etc., 24 N. J., 885; State v. Robertson, id., 504; State ». Newark, 27 id., 185; State ». Mills, 84 id., 177; State v. Newark, 35 id., 157; S.C., 10 Am. Rep., 223; Broadway Baptist Church ». McAtee, 8 Bush, 508; S. C., 8 Am. Rep., 480; Alexander 2. Baltimore,.5 Gill, 888, 396; Baltimore v. Cemetery Co., 7 Md., 517; Le Fevre v. Detroit, 2 Mich., 586; Kendrick ». Farquar, 8 Ohio, 189, 197; Armstrong ». Treasurer of Athens County, 10 id., 285; Cincinnati College v. State, 19 id. 110; Brewster 7. Hough, 10 N. H, 188; Seymour o. Hartford, 21 Conn., 481; Bridgeport v. N. Y. & N.H. R. Co., 36 id., 265; First Presbyterian Church v. Fort Wayne, 36 Ind., 838; 8. C., 10 Am. Rep., 85; Palmer ». Stumph, 29 Ind., 329; Trustees of Church »v. Ellis, 38 id., 3; Bank of Republic ». Hamilton, 21 Ill, 53; Canal Trustees ». Chi 148 LAW OF TAXATION. [oH. VI. cise of the taxing power, and can only be justified on that cago, 12 id., 408; Chicago v. Colby, 20 id., 614; McBride ». Chicago, 22 id., 574; Peoria v. Kidder, 26 id., 351; Pleasant v. Kost, 29 id., 490, 494; Paine 0. Spratley, 5 Kans., 525; Orange & Alexandria R. R. Co. 0. Alexandria, 17 Gratt., 176; Crowley v. Copeley, 2 La. An., 829; LaFayette 0. Orphan Asylum, 4id., 1; Rooney v. Brown, 21 id., 51; St. Louis Public Schools v. St. Louis, 26 Mo., 468; Sheehan ». Good Samaritan Hospital, 50 id., 155; 8. C., 11 Am. Rep., 412; Lockwood ». St. Louis, 24 Mo., 20 (sewer tax); Emery 0. Gas Co., 28 Cal. 345; Taylor v. Palmer, 31 id., 240; Hale v. Kenosha, 29 Wis., 599; Seamen’s Friend Society v. Boston, 116 Mass., 181; Agricultural Society 2. Worcester, id., 189. The real estate belonging to the board of public schools of the city of St. Louis, is liable to be assessed under and by virtue of the ordinances of the city of St. Louis, for the construction of sewers, paving of sidewalks, opening of streets, etc. St. Louis Public Schools ». City of St. Louis, 26 Mo., 468. Some of the exemptions in these cases seem very strong and comprehensive, but they were generally applied only to the customary taxes. The following instances may be given: In Baltimore 0. Cemetery Company, an exemption from “any tax or public imposition whatever” was held to apply only to “taxes or impasitions levied or imposed for the purpose of revenue,” and not to relieve the cemetery from “such charges as are inseparably incident to its location in regard to other property;” e. g., an assessment for paving the street in front. In Buffalo City Cemetery v. Buffalo, 46 N. Y., 506, where the cemetery was by law exempt from “all public taxes, rates and assessments,”’ it was held not exempt from a paving assessment. Folger, J.. says: “We think that the current of authorities in this and some of the sister states runs to this result: that public taxes, rates and assessments, are those which are levied and taken out of the property of the person assessed, for some public or general use or purpose, in which he has no direct, immediate and peculiar interest; being exactions from him towards the expense of carrying on the government, either directly and, in general, that of the whole commonwealth, or more mediately and particularly through the intervention of municipal corporations; and that those charges and impositions which are laid directly upon the property in a circumscribed locality, to effect some work of local convenience, which in its result is of peculiar advantage and importance to the property, especially assessed for the expense of it, are not public but are local and private so far as this statute is concerned.” In Patterson ». Society, etc., 24 N. J., 385, the exemption was from “ taxes, charges and impositions;” but it was held not to extend to an assessment for grading and paving a street. In State v. Newark, 27 N.J., 185, the exemption was from “charges and im- positions,” and the same ruling was had. In Bridgeport v. N. Y.& N. H.R. R. Co., 36 Conn., 255, the railroad company paid a tax which, by its charter, was to be “in lieu of all other taxes;” but the company was, nevertheless, held liable to a street assessment. These cases show that the general inclination has been to confine the appli- cation of all such general language to the taxes imposed for ordinary revenue. But in Massachusetts it has been held that an assessment for altering a street CH. VL.] EQUALITY AND UNIFORMITY IN TAXATION. 149 ground.’ It is sometimes a matter of great nicety to determine how far a general or even a qualified exemption from taxation extends, in the case of a corporation which employs its means or some portion thereof in the purchase of property not required for is a civil imposition within the meaning of a college charter exempting the college property from “all civil impositions, taxes and rates.” Harvard Col- lege v. Boston, 104 Mass., 470. ? People v. Brooklyn, 4 N. Y., 419; Sharp v. Spier, 4 Hill, 76; Patterson v. Society, etc., 24 N. J.. 385; State v. Fuller, 34 id., 227; State o. Newark, 35 id., 168, 171; Weeks v. Milwaukee, 10 Wis., 242; Motz v. Detroit, 18 Mich., 495; Baltimore v. Cemetery Co., 7 Md., 517; Glascow ». Rouse, 43 Mo., 479, 489; McComb ». Bell, 2 Minn., 295; Pray v. Northern Liberties, 31 Penn. St., 69; Walsh v. Mathews, 29 Cal., 128; Chambers ». Satterlee, 40 id., 497; Yeatman ». Crandall, 11 Ld. An., 220; Matter of Opening of Streets, 20 id., 497; Reeves v. Treasurer of Wood Co., 8 Ohio, N. §., 888; Hines v. Leavenworth, 3 Kans., 186. An exemption from “all taxes and assessments,” held to exempt from assess- ments for benefits, as well as from general taxes. State o. Newark, 36 N.J., 478; 8. C., 138 Am. Rep., 464. Compare Patterson ». Society, etc., 24 N.J., 385; Oswald ». Gilfert, 11 Johns., 448; Codman ». Johnson, 104 Mass., 491. The following cases of exemptions may be specially mentioned: An exemption from a state tax will not preclude the levy of a tax by a city. Martin »o. Charleston, 13 Rich. Eq., 50. An exemption of charitable societies from tax- ation, held to embrace the case of a masonic grand lodge, which for fifty years had not been taxed, this neglect to tax being regarded as having fixed the construction of the exemption. State v. Addison, 2 8. Car., N.S. 499. An exemption of universities, colleges, academies and school houses, held not to extend to an academy of fine arts, “ as none can claim an exemption unless the exemption be so clearly expressed in the statute as to admit of no other construction.” Academy of Fine Arts v. Philadelphia, 22 Penn. St.,496. The exemption from taxation of the property of soldiers in actual service will not exempt from a tax actually imposed before the soldier enlisted. Tobin o. Morgan, 70 id., 229. An exemption of “all houses of religious worship and the pews and furniture within the same,” will exempt only that part of a building occupied for religious worship, and if other portions are leased for business purposes, they are taxable. Proprietors v. Lowell, 1 Met., 588. An exemption of such real estate of literary and scientific institutions “as shall be actually occupied by them, or by the officers of such institutions for the purposes for which they were incorporated,” held not to extend to a house puilt on the real estate of Harvard College and leased by the corporation to one of the professors for a dwelling; the occupation of a lessee not being such an occupation as was intended by the statute. Pierce v. Cambridge, 2 Cush., 611. The same exemption held applicable to a farm and the farming stock owned by an educational institution, and by it worked solely to raise produce and do team work for a boarding house kept to supply students with board at cost. Wesleyan Academy v. Wilbraham, 99 Mass., 599. Compare 150 LAW OF TAXATION. [cH. VI. the purposes for which its corporate privileges were conferred, though capable, perhaps, of being made useful and profitable as an aid in its corporate business. The question is, in each instance, whether such property, in the manner in which it has been in- State v. Ross, 24 N. J., 497. Under an exemption of school buildings, a build- ing occupied in part for a school and in part for other purposes is not exempt. Wyman o. St. Louis, 17 Mo., 835. An exemption of every school house and every building erecteg for the use of a college, incorporated academy or other seminary of learning, held not to embrace a building used and occupied for a private boarding school. Chegaray 0. New York, 18 N. Y., 220. To the same effect is State v. Koss, 24 N. J., 497. See a peculiar case, Mass. General Hos- pital v. Somerville, 101 Mass., 819. Bequests to colleyes, etc., held to be taxa- ble under the general statute taxing bequests, though after being received they would be exempt under a general provision exempting the property of such institutions. Barringer v. Cowan, 2 Jones’ Kq., 436. Exemption from “ taxa- tion of every kind” does not exempt from an assessment for street improve- ments. Sheehan v.Good Samaritan Hospital, 50 Mo., 155. Compare Dunleith, etc., Bridge Co. v. Dubuque, 32 Ia., 427; Brightman »v. Kirner, 22 Wis., 54. Exemption of the stock of a railway company from taxation held to include all property necessary and proper for the purpose of laying, building and sustaining the road. Ordinary of Bibb County v. Central R. R. Co., 40 Geo., 646. Where the shares of stock in a corporation were exempt from taxation, the property of the corporation was held to be exempt also, Baltimore v. B. & O.R.R. Co., 6 Gill, 288. See State v. Branin, 23 N.J., 484. A specific state tax on a railroad company held to preclude taxation of its property by valuation. Camden & Amboy R. R. Co. v. Commissioners, 18 id. 11. And see State v. Cook, 32 id., 388; Cook ». State, 33 id., 472; Douglass 2. State, 34 id., 485. A branch road to procure gravel held liable to ordinary taxation. State v. Hancock, 33 id., 315. Compare State v. Hancock, 85 id., 587. A provis- ion in a railroad charter was that “all machines, wagons, vehicles or carriages, belonging to the company, with all its works and all the property which may accrue from the same, shall be vested in the respective shareholders forcver, in proportion to their respective shares, and shall be deemed personal estate, and exempt from any charge or tax whatever.” This makes all the property of the company, owned and used for its purposes, personal estate and exempt. A city in which the company owns property cannot dispute this exemption or the ground of its lessening its power to pay its debts. Richmond ». Rich- mond & Danville R. R. Co., 21 Grat., 604. General exemption of the property of a corporation from taxation construed to include the franchise. Wilming- ton R. R. Co. v. Reid, 18 Wall., 264; Raleigh, etc., Railroad Co. v. Reid, 13 id., 269; State v. Berry, 17 N. J., 80; Camden & Amboy R. R. Co. v. Hillegas, 18 jd., 11; Same ». Commissioners of Appeal, id., 71. An exemption of the “stock” of a corporation is an exemption of its gross income also, it being but an accessory to the stock. State v. Hood, 15 Rich. Law, 177. Capital, it has been held, signifies the actual estate, whether in money or property, which is owned by an individual or corporation. In reference to a CH. VL] EQUALITY AND UNIFORMITY IN TAXATION. 151 vested, can be regarded as within the intent of the exemption? The general inclination of the courts has been to hold, that a charter which provides for a certain tax, and “that no other tax or impost shall be levied or assessed” upon the corporation, will exempt from taxation all the property held by it, necessary to effect the purpose of the incorporation, but not other property held by it which, though convenient and tending to increase the profits, is not necessary to the corporation and its business) But this is always a question of special construction and not of generai law.1 corporation, it is the aggregate of the sum subscribed and paid in, or to be paid in, by the shareholders, with the addition of profits on the residue, after the deduction of losses. People ». Commissioners of Taxes, 28 N. Y., 192, 219. In Mechanics’ etc. Bank v. Townsend, 5 Blatch., 315, capdtal was held not te include surplus earnings, though undivided. A railroad company paid the state a specific tax under a law which pre vided that it should not ‘be assessed with any tax on its lands, buildings or equipments.” Held not to preclude municipal taxation. Orange & Alexan- dria R. R. v. Alexandria, 17 Grat., 176. Compare this with Richmond v. Rich- mond & Danville R. R. Co., 21 id., 604, where an exemption from “ any charge or tax whatsoever’? was held to cover municipal as well as state taxes. See also Southern R. R. Co. v. Jackson, 38 Miss., 384; Neustadt ». [llinois Central R. R. Co., 81 IL, 484; Gardner ». State, 21 N. J., 557. Effect of consvlidation of railways on a previous exemption of one of the roads. See Tomlinson v. Branch, 15 Wall., 460; Charleston ». Branch, id., 470. An exemption from taxation of “ property necessarily used in operating the railroad,” held to apply to an inn used exclusively by persons arriving and departing on the railroad. Milwaukee, etc., R. R. Co. v. Board, etc., of Craw- ford County, 29 Wis., 116. For other cases of special exemption, see State Bank »v. Madison, 3 Ind., 48; Orr v. Baker, 4 id., 86; Lord ». Litchfield, 36 Conn., 116; State v. Haight, 35 N. J., 40. And see Rex v. Calder, 1 B. & Ald., 263; State v. Minton, 23 N.J., 529; Philadelphia, etc., R. R. Co. 0. Bayless, 2 Gill, 355; State v. Norwich & Worcester R. R. Co., 30 Conn., 290; Armstrong v. Athens Co., 16 Pet., 281. An exemption for the benefit of a religious society ceases on its making sale of the property. New Haven ». Sheffield, 80 Conn., 160. And as to strict construction in general, see Erie Railway v. Pennsylvania, 21 Wall., 492. « 1 Where a canal is exempt from taxation the toll house is not taxable. Schuylkill Nav. Co. ». Commissioners of Berks Co., 11 Penn. St., 202. Where arailroad is exempt, this will cover its water stations and depots, but not warehouses, coal lots, coal shutes, machine shops, wood yards etc., which are only necessary to the profits to be made by the company. Railroad v. Berks County, 6 id.,70. See Lehigh Co. v. Northampton, 8 W. & S., 334; Wayne Co. v. Delaware & TIudson Canal Co.,15 Penn. 8t., 351, 357, where the sub- 162 LAW OF TAXATION. [cH. VL Invidious exemptions. An exemption, to be admissible, it would seem, ought to be either made on the basis of contract, in which case the public is supposed to receive a full equivalent ject is considered at length; N.Y. & Erie R. R. Co. v. Sabin, 26 id., 242; West Chester Gas Co. v. Chester Co., 30 id., 232; Lackawana Iron Co. 2. Luzerne OCo., 42 id., 424; Milwaukee, etc., R. R. Co., 0. Supervisors of Crawford, 29 Wis., 116; Milwaukee, etc., R. R. Co. v. Milwaukee, 84 id., 271; Orange, etc., R. R. Co. y. Alexandria, 17 Grat., 176, which does not allow the implied exemptions; Vermont Cent. R. R. Co. v. Burlington, 28 Vt., 198; Souhegan Nail, etc., Factory 1. McConike, 7 N. H., 309; Gardiner o. State, 21 N.J., 557; State v. Mansfield, 28 id., 510; State v. Flavell, 24 id., 370; State v. Blundell, 24 id., 402; State o. Betts, 24 id., 555; State v. Newark, 25 id., 315; State v. The Collector of Newark, 26 id., 519; State Treasurer v. Som- erville & Easton Railroad Co., 28 id., 21; State v. Elizabeth, 28 id., 108; State v. Lester, 29 id., 541; State v. Hancock, 83 id., 315; Hannibal & St. Joseph Railroad Co. v. Shacklett, 30 Mo., 550; State o. H. &St. Jo. R. R. Co., 37 id, 265; Boston & Me. R. R. Co. o. Cambridge, 8 Cush., 287; Wilmington R. R. Co. v. Reid, 13 Wall. 264, 268, per Davis, J. An exemption to a railroad company of “ all machines, wagons, vehicles or carriages belonging to the company, with all their works,” etc., held to apply to their real estate as well as to their rolling stock. Richmond ». Richmond & Danville R. R. Co., 21 Grat., 604, citing Baltimore v. B.& O. R. R. Co., 6 Gill, 238. A provision that a certain tax on the capital and debts of railroad companies should “take the place of all other taxes on railroads and horse railroad property and franchises,” held to exempt property whether used for railroad purposes or not. Osborn v. N. Y.& N. H.R. BR. Co., 40 Conn., 491. And see in general, The Tax Cases, 12 G. & J. 117. A general exemption of railroad property from taxation has been said to be coéxtensive with the right of the railroad company to take property for its use by condemnation, and that the limit of such right is the limit of the exemp- tion. State v. Hancock, 33 N.J.,315; Milwaukee, etc., R. R. Co. v. Milwau- kee, 34 Wis., 271. The act incorporating the Illinois Central Railroad Company provides as follows: “The * * * stock, property and assets belonging to said com- pany shall be listed by the president, secretar¥, or other officer, with the audi- tor of state, and an annual tax for state purposes shall be assessed by the auditor upon all the property and assets of every name, kind and description belonging to said corporation. Whenever the taxes levied for state purposes shall exceed three-fourths of one per cent. per annum, such excess shall be deducted from the gross proceeds or income herein required to be paid by said corporation to the state, and the said corporation is hereby exempted from al] taxation of every kind except as herein provided for.” Held, that this exemption did not apply to a wharf boat and to a steamboat used principally in conveying the passengers and freight from the terminus of the road to the terminus of anvther railroad, thus making connections. Ill inois Central R. R. z. Irvin, Sup. Court Ill., 1875, 7 Chicago Legal News, 286. CH. VI] EQUALITY AND UNIFORMITY IN TAXATION, 153 therefor, or it ought to be made on some ground of public policy, such as might justify a pension or a donation of the public funds on some general rule of which all who come within it may have the benefit! It is difficult to conceive of an exemption law which selects single individuals or cor- porations, or single articles of property, and taking them out of the class to which they belong, makes them the subject of capricious legislative favor. Such favoritism could make no pretense to equality; it would lack the semblance of legitimate tax legislation. It is certain that municipal bodies or taxing officers have no authority to make such exemptions unless expressly empowered by legislation; and to make any would render invalid the whole tax roll on which the exempted property or person ought to have appeared. The motives of the exemption or the beneficial purposes expected to be accomplished by it can make no difference. No man is obliged‘to be more generous than the law requires; each may stand strictly on his legal rights, and refuse to submit to any 'exaction that purposely is made more burdensome to him than the rules of law permit.” 1“A common burden should be sustained by common contributions, regulated by some fixed general rule, and apportioned according to some uniform ratio of equality. Thus, if a capitation or personal tax be levied it must be im- posed on all free citizens equally and alike, or if an ad valorem or specific tax be laid on property, it must be laid equally, according to value or kind, on all the property, or on each article of the same kind, owned by every citizen; and no citizen or class of citizens owning any property of the kind subject to taxation can be exempted constitutionally on any other ground than that of valuable and peculiar public services; for otherwise one man or set of men might be entitled to enjoy exclusive privileges, or legal exemptions which are substantially the same, without the only constitutional consideration of public services.” Robertson, Ch. J., Sutton’s Heirs v. Louisville, 5 Dana, 28, 31. 2 Per Paine, J., in Wecks v. Milwaukee, 10 Wis., 242, 263. The case was one of an exemption of a block in the city of Milwaukee on which a hotel was about to be constructed; the common council directing it to be made “ in view of the great public benefit which the construction of the hotel would be to the city’. Compare Exchange Bank v. Hines, 3 Ohio, N. 8.,1; Adams v. Beman, 10 Kansas, 87. In Henry ». Chester, 15 Vt., 460, a tax list was held void on two grounds: “1. The plain and obvious requisitions of the statute in regard to making up were disregarded, both by important and essential omissions, and by arbitrary additions without even the color of right or legal warrant. If this may be done and still the list be regarded as legal, so might it with equal 154 LAW OF TAXATION. [CH. VI. The legislature is equally powerless if the constitution has pre- scribed a rule of equality which forbids exemptions.’ Such a rule, it has been seen, is prescribed by the constitutions of some of the states, which in terms or by necessary implication require all private property in the state to be taxed in proportion to its value.* Accidental omissions from taxation. It bas been decided in a number of cases that accidental omissions from taxation, of per- sons or property that should be taxed, occurring through the neg- ligence or default of officers to whom the execution of the taxing propriety if the entire real estate in town were omitted or inserted wholly at random, without even the form of an appraisal.” See State v. Branin, 23 N. J., 484; Hersey v. Supervisors, etc., 16 Wis. 185; Crosby 0. Lyon, 387 Cal., 242; Primm ». Belleville, 59 Ill., 142; Kneeland ». Milwaukee, 15 Wis., 454; Smith o. Smith, 19 id., 615; People o. McCreery, 34 Cal., 482. Including in the assessment pcrsons who are not liable, and against whom a tax cannot be enforced, does not invalidate the tax against the rest. Inglee v. Bosworth, 5 Pick.. 498. See Dillingham 2. Snow., 5 Mass., 547. An illegal exemption by the common council of one man from a sewer tax will not authorize another to have his tax enjoined where it appears that his payment is not increased by the exemption. Page v. St. Louis, 20 Mo., 136. The principle is that no one is to be heard to complain of that which works no injury to him. See Sanford v. Dick, 15 Conn., 447; Case o. Dean, 16 Mich., 12. 1In Gilman »v. Sheboygan, 2 Black, 510, it was held that under a constitu- tional provision requiring that “the rule of taxation shall be uniform, and taxes shall be levied upon such property as the legislature shall prescribe,” it was not competent to provide that a tax fora special improvement should be laid exclusively on real estate. The cases of Weeks v. Milwaukee, 10 Wis., 242; Knowlton », Supervisors of Rock Co., 9 id., 410; Lumsden »., Cross, 10 id., 282, and Attorney General v. Plankroad Co., 11 id., 35, 42, are referred to as having settled the construction of the constitution of the state which would forbid the sweeping exemption of personal property. It is to be observed that the general law of the state at that time required the taxation of “all property, real and personal, not expressly exempted therefrom.” Com pare Bright . McCullough, 27 Ind., 223; Primm ». Belleville, 59 111., 142. In assessing by benefits the tax will be void if it appears that exemptions are made of property which should be taxed. Alexander v. Baltimore, 5 Cill, 383, 890. Compare Page v. St. Louis, 20 Mo., 186. 2See O’Kane v. Treat, 25 Ill., 557, 561 and other cases already cited. A constitutional provision that all real property shall be subject to taxation with certain enumerated exemptions, amounts to a prohibition of further ex- emptions. Fletcher v. Oliver, 25 Ark., 289. CH. VL] SQUALITY AND UNIFORMITY IN TAXATION. 155 laws is intrusted, would not have the effect to vitiate the whole tax. The reasons for this conclusion are summarized in one of the cases as follows: “ The execution of these laws is necessarily intrusted to men, and men are fallible, liable to frequent mistakes of fact, and errors of judgment. If such errors on the part of those who are attempting in good faith to perform their duties should vitiate the whole tax, no tax could ever be collected. And therefore, though they sometimes increase improperly the burden of those paying taxes, the rule which holds the tax not thereby avoided is absolutely essential to the continuation of the government.” It seems difficult to resist the force of this rea- 1 Paine, J., in Weeks v. Milwaukee, 10 Wis., 242, 262, where the following cases are cited and relied upon; Speer v. Braintree, 24 Vt., 414; State ». The Collector of Jersey City, 24 N.J.,108; Insurance Co. v. Yard, 17 Penn. St., 831; Williams »v. School District, 21 Pick. 75. See also State v. Randolph, 25 N. J., 427, 481; Smith o. Smith, 19 Wis., 615; Schofield v. Watkins, 22 Ill, 66; Dunham »v. Chicago, 55 id., 357, 361; People v. McCreery, 34 Cal., 482. In Watson v. Princeton, 4 Met., 599, 602, Shaw, Ch. J., says that the case of omis- sion, through error of judgment or mistake of law, to tax property that should be taxed, can give no right of action to recover back any portion of the tax paid by another. “Various other remedies may be resorted to to secure just and legal taxation. The law is strict in requiring that the whole valuation shall be laid before the tax paying inhabitants, in order that any omission, mistake or irregularity may be corrected before the tax is collected. It is for the interest of the town, and of the inhabitants generally, that each inhabitant liable should be taxed, and to the extent of his liability ; and therefore it must be presumed to be the inclination of assessors to impose rather than omit a tax, in case of doubt, leaving the individual aggrieved to raise the question if he shall think fit. And the final remedy, if the inhabitants believe that their assessors are acting upon erroneous principles, is to elect others in their places.” See also George v. School District, 6 Met., 497; Dean v. Gleason, 16 Wis., 1. There has been some disposition in Illinois to hold that, even in the case of intentional omissions, the parties aggrieved should be left to their rem- edy against the assessor, and the tax roll sustained. Schofield v. Watkins, 22 Ill, 72; Merritt o. Farris, 22 id., 308, 311; Dunham ». Chicago, 55 id., 357, 361. But see Primm ». Belleville, 59 id., 142. In Muscatine v. Railroad Co., 1 Dill., 536, 542, Mr. Justice Muller, at the circuit, had occasion to consider the effect of omitting to tax certain property which, as it was claimed, the constitution expressly required should be taxed with all other. He said: “A statute of Towa exempts railroad property from all other taxes except one per cent. per annum paid into the state treasury. The constitution of the state declares that all taxation shall be uniform. Whether this constitutional provision (the exact terms of which I have not attempted to state) renders the statute void, is a question upon which the supreme court of this state has twice, as I am 156 LAW OF TAXATION. [cH. VI. soning, and it applies to the case of a mistake of law with the same cogency as to the case of a mistake of fact. Indeed where the omission has occurred through no purpose to evade or disre- gard official duty, the occasion which produced it seems wholly immaterial.? informed, been equally divided. Ifthe question was presented to the circuit court by way of supervisory control over the officers, who, under its com- mand, are collecting this tax, whether this railroad property should be assessed the same as other property, I confess I do not see how it could avoid deciding it. But, instead of an order to assess the property, Iam asked to declare all other assessments void, because it is not assessed. ‘This, it will be seen, is a very different question; and it is clear that I can only enjoin its col- lection on the ground that it is void. The case of Gilman v. Sheboygan, 2 Black, 510, is relied on as authority for the latter proposition. In that case, after the city of Sheboygan had issued bonds im aid of a railroad, the legisla- ture of that state passed an act declaring that the tax ta pay these bonds should be assessed exclusively on the real estate of the city. The constitution of Wisconsin has a provision similar to the oue referred to in the constitution of Iowa, and the supreme court of the United States held this attempt to make a part only of the taxable property of the city responsible for this particular debt, was a violation of the constitution, which rendered the tax levied under that statute void. “In the case before us there is no attempt to render any species of property liable to taxation for any specific debt, or class of debts, but an exemption of the railroad from all other burdens in consideration of a definite sum, which may be more or less than its share of such burden. Whether this exemption be forbidden by the constitution or not, I am quite clear that it does not render void the tax which is levied upon other property. “The case of Gilman v. Sheboygan does not go so far as this, either in the facts on which it is grounded, or the reasons by which the judgment was sus- tained. There is a manifest difference between an attempt to impose the en- tire burden of a debt already incurred by a municipality, upon a particular species of property, and the attempt to exempt a species of property from all other taxation, in consideration of a sum supposed to be its just share of the general public burden. It is not inappropriate to look to the consequences of holding that this failure to assess the railroads renders all other tax void. It applies to the tax assessed for all other purposes as well as this tax. Every nonresident holder of property in the state could apply to me and insist on an injunction against the tax on his property. And if the state judges believe it to be void, they would be bound on the same principle to suspend the col- lection of all taxes throughout the entire state. A proposition which leads inevitably to such a result can not be sound. I cannot therefore grant an in- junction on this ground, whether railroad property is liable to taxation or not.” 1See People v. McCreery, 34 Cal., 432, where the mistake was one of law, but the omission was held not to be fatal. CH. VI.] EQUALITY AND UNIFORMITY IN TAXATION. 157 Invidious assessments. A tax when assessed by valuation may be made unequal and oppressive by the unfairness with which the valuation is made. The remedies for an excessive valuation we have no purpose to consider in this place; they be- long more properly to a subsequent part of the work. As a gen- eral rule, a tax cannot depend for its validity upon the ability to justify it to the satisfaction of a court or jury. Value is matter of opinion, and when the law has provided officers upon whom the duty is imposed to make it, it is the opinion of these officers to which the interests of the parties are referred. The court cannot sit in judgment upon their errors, nor substitute their own opinions for the conclusions the officers of the law have reached.. It is possible, however, that there may be circumstances under which the action of “these officers will not be conclusive. Sup- pose it admitted, or established beyond a peradventure, that a public officer who has been empowered by the law to apportion certain burdens among the citizens, as in his judgment shall be just, has been actuated by a fraudulent purpose, and instead of attempting to carry the law into effect, has wholly disregarded its mandate, declined to bring his judgment to bear upon the ques- tion submitted to him, and arbitrarily, with the intent and purpose to defeat the equity at which the law aims, has determined to im- pose an excessive burden upon a particular citizen. Suppose this to be unquestioned or unquestionable, can it be that the citizen has no remedy against the wrong intended ? Such a question, it would seem, could admit of but one answer. “ A discretionary power cannot excuse an officer for refusal to exer- cise his discretion. His judgment is appealed to; not his resent- ments, his cupidity or hismalice. He is the instrument of the law to accomplish a particular end, through specified means; and when he purposely steps aside from his duty to inflict a wanton injury, the confidence reposed in him has not disarmed the law ot the means of prevention. His judgment may indeed be final if he shall exercise it, but an arbitrary and capricious exertion of official authority, being without law, and done to defeat the pur- pose of the law, must, like all other wrongs, be subject to the law’s correction.” ! Assessors indeed are clothed with a power which 1 Merrill o Humphrey, 24 Mich., 170. See Same Case, 11 Law Reg., N.8., 158 LAW OF TAXATION. (cH. VI. is quasi judicial, but fraud vitiates even the most solemn judg- ments of courts, and the action of these quast judicial bodies can- not stand on any higher ground. It may be that all presump- tions should so far favor their action as to protect them against personal actions at the suit of parties aggrieved, but such presump- tions cannot preclude inquiry when their action is questioned for fraud. The policy of the law may protect the person, but it would be defeated if legal effect should be given to such fraudu- lent levies.' Duplicate taxation. It has been remarked on a preceding page* that when personal property is taxed, duplicate taxation is sometimes imposed. By this was meant that such property some- times, after being subjected to one levy for the support of govern- ment for the current year, is by a change of circumstances sub- jected to taxation a second time for the support of government during the same period. Such a case would generally occur in consequence of the removal of the property, after the listing in 208, with note by Judge Redfield. See also Albany, etc., R. R. Co. v. Canaan, 16 Barb., 244; Buffalo, etc., R. R. Co. v. Erie County, 48 N. Y., 93; Western R. R. Co. o. Nolan, 48 id., 518; Fuller 0. Gould, 20 Vt., 648, 644; Stearns v. Miller, 25 id., 20; Wilson v. Marsh, 34 id., 352; State v. Central Pacific R. R. Co., 7 Nev., 99. That neither a state nora municipality has a right to discrimin- ate in taxation between residents and nonresidents, see ante, p. 64; City Council of Charleston ads. State, 2 Speers L., 719; Nashville v. Althorp, 5 Cold., 554. Compare Jones ». Columbus, 25 Geo., 610, where it was held competent to discriminate between residents and nonresidents of a city in the taxation of slaves employed therein. But any such discrimination must be expressly authorized by law. Robinson o. Charleston, 2 Rich., 317. The recent case of Adams v. Beaman, 10 Kansas, 37, should be considered in connection with the Michigan and Wisconsin cases referred to in this and the succeeding note. 1 See Lefferts v. Supervisors of Calumet, 21 Wis., 688, where it was decided that the collection of a tax would be restrained where the taxing officers in their assessment had fraudulently discriminated against the complainant; Merrill ». Humphrey, 24 Mich., 17, a similar case with the same holding; Mil- waukee Iron Co. v. Hubbard, 29 Wis., 51, approving and following the case first cited. See also Mason v. Lancaster, 4 Bush, 406,408. Inequality in a legal sense is not produced by certain tax payers taking proceedings which vacate an assessment as to them, while others, who have lost the like right by delay, remain taxed, especially when the lands relieved are liable to reassess: ment. Matter of DeLancy, 52 N. Y., 80. 2 Ante, p. 28. CH. VL] EQUALITY AND UNIFORMITY IN TAXATION, 159 one jurisdiction, into another where the time of listing was lat- er. A system of indirect t#xes, combined with a system of gen- eral taxation by value, must often have the effect to duplicate the burden upon some species of property or upon some persons, and the taxation of stockholders in a corporation, and also of the cor- poration itself must sometimes produce a like result. There is also sometimes what seems to bea double taxation of the same property to two individuals; as where the purchaser of property on credit is taxed on its full value, while the seller is taxed tothe same amount on the debt.’ How this would operate may be 1In California, whose constitution requires “all property ” to be “ taxed in proportion to its value,” it is held not competent to exempt solvent debts from taxation to the creditor. People v. McCreery, 34 Cal., 482; People v. Yerke, 35 id., 677; People v. Black Diamond Co., 87 id., 54; People v. Whartenby, 38 id., 461. For a decision to the same purport in Illinois, see Trustees v. Mc- Connell, 12 Ill., 188. The fact that the debt is secured by mortgage on prop- erty which is also taxed, can make no difference. People v. Eddy, 43 Cal., 331; compare Lick v. Austin, id., 590. But in Savings and Loan Society ». Austin, 46 id., 415, the majority of the court held that a debt for money loaned, which was secured by mortgage, could not be taxed to the creditor if the mort- gaged property was also taxed. The reasoning of the court may be thus sum- marized: Ifthe debt is taxed, the mortgagee will take this into account in making the loan, and it goes to increase the interest he demands. In effect, therefore, the tax on the debt will be paid by the mortgagor. But he also pays the tax on the property, and consequently duplicate taxation is imposed upon lim. This reasoning, if applied universally to indirect taxation, would keep the boards very busy in correcting the inequalities of tax legislation. And why it should be limited to the case of a loan secured by mortgage, is not very apparent, since if all debts for property sold are taxed, it may with consider- able plausibility be argued that the seller has anticipated the tax and added it to the price, so that the purchaser pays twice when he comes to pay tle assess- ment on the property bought. But then, whether the tax does increase the in- terest demanded on the loan, must depend on circumstances. If all loans are taxed, it may be conceded that the interest will be increased; but if only a part of them are taxed, those making the taxed loans may not be able to add the tax to the interest. In a locality, for instance, in which nonresidents were loaning money freely, a resident might be compelled to submit to a loss of the tax in order to be able to make any loans at all. And then one who has bor- rowed money without security may be taxed on that, or on what he has bought with it, and if the lender is taxed on the loan, why is not this also a case of duplicate taxation? These are suggestions merely, but they may serve to in dicate the labyrinth of difficulties into which the courts would be thrown if the effects of taxation were thus to be traced up for the purpose of correcting inequalities. 160 LAW OF TAXATION. (CH. VL readily perceived by supposing the extreme case that all the prop- erty in a town is sold op credit, in which case, if the property is taxed to the purchasers, and the debts to sellers, it is manifest that the town taxes twice as much wealth as lies within its borders. Now, whether there is injustice in the taxation in every in- stance in which it can be shown that an individual who has been directly taxed his due proportion is also compelled ¢ndirectly to contribute, is a question we have no occasion to discuss. It is sufficient for our purposes to show that the decisions are nearly, if not quite, ahanimous in holding that taxation is not invalid be- cause of any such unequal results! It cannot be too distinctly borne in mind, that any possible system of tax legislation must inevitably produce unequal and unjust results in individual in- stances ; and if inequality in result must defeat the general law, then taxation becomes impossible, and governments must fall back upon arbitrary exactions. But no such’ impracticable prin- ciple is recognized in revenue laws. While equality and justice 1It is no objection to a tax graduated by the amount of a merchant’s sales, that a part of the goods sold had been purchased of another who had paid a tax thereon. Mayes v. Erwine, 8 Humph., 290. The money of a depositor may be taxed to him, and the deposits of the bank, including this, may also be taxed to the bank. Yuba Co. 2. Adams, 7 Cal, 35. And see other cases further on. Income may be taxed though invested in real estate which is taxed the same year. Lott v. Hubbard, 44 Ala., 593. Income, as used in a statute exempting incomes from taxation, held to mean the creation of capital, industry and skill. Wilcox v. Middlesex County, 103 Mass., 544. Income means that which comes in and is received from any business or investment of capital without reference to the oulgoing expendi- tures. Profits, on the other hand, are understood to mean the net gain of any business or investment, taking into account both receipts and payments. In- come, as applied to the affairs of individuals, expresses the same idea that revenue does when applied to the affairs of government. People v. Supervis- ors of Niagara, 4 Hill, 20, affirmed 7 Hill, 504. As to difference between “annual value” and “annnal income,” see Troy Iron and Nail Factory ». Winslow, 45 Barb., 231. There isa case in Texas in which the indirect re- sults of taxation were followed up somewhat sharply. The law subjected “ all property; real and personal,” with certain exceptions, to taxation. A planter was taxed on his corn and cotton, but contested the tax as duplicate, because he had already been taxed on his slaves and mules by which he produced the corn and cotton. The objection was found by the court to be insurmount. able. State v. Jones, 5 Texas, 383. CH. VL] EQUALITY AND UNIFORMITY IN TAXATION. 161 are constantly to be aimed at, impossibilities are not demanded. Tax legislation must be practical.1 It is one of the reasons for levying indirect taxes, and other taxes than those on property by value, that they tend to diminish the inequalities that would ex- ist if a single species of taxation only were to be levied. The legislature must judge of the general result, and when the law has apportioned the tax, individual hardships must be regarded as among the inconveniences which are incident to regular govern- ment. The same necessity that justifies any taxation will justify and sustain any reasonable provisions for giving it effect. The necessity of the state and reasonable provisions for the security of the individual must be equally considered ; the state is no more to be deprived of its revenue, because of individual hardship, re- sulting from general rules, than is the individual to be stripped of his property without law, because in its necessity the state finds it more convenient to take it thus than by regular proceedings. The incidental hardship or inconvenience must be submitted to in either case. These general views have often been declared by able jurists. “Property,” it is said in one case, ‘is liable in many cases to be ‘taxed twice, when it would appear difficult or unsafe to make provision by law to prevent. Thus, stock in trade may be taxed to the owner, while he may be indebted for it to many persons, who may be taxed for those debts or the money loaned to pur- chase it. Real estate may be taxed to a mortgagor in possession while the mortgagee is taxed for the money secured by the mort- gage, * * * So imperfect are all human institutions, that perfect equality in the imposition of burdens is not to be ex- pected. These provisions for valuation are not considered to be in conflict with the general purpose to have all property subjected to taxation once, and only once at the same time.”? “The power 1“ There is nothing poetical about tax laws. Wherever they find property they claim a contribution for its protection, without any special respect to the owner or his occupation.” Lowrie, Ch. J., in Finley v. Philadelphia, 32 Penn. 8t., 381. * Augusta Bank ». Augusta, 36 Me., 255, 259, per Shepley, Ch. J. See People ». Worthington, 21 Ill, 171; Kirby 0. Shaw, 19 Penn. St., 258; St. Louis Life Ins. Co. v. Assessors, 56 Mo., 508, per Voris, J. For cases of apparent double taxation by a tax on business, see Savannah ». Charlton, 36 Geo., 460; Burch 11 162 LAW OF TAXATION. [cH. VI. to tax twice,” it is said in another case, ‘is as ample us to tax once.”' We make out, therefore, no conclusive case against a v. Savannah, 42 id., 596; Sacramento v. Crocker, 16 Cal., 119; Coulson v. Har; ris, 43 Miss., 728; Woolman 2. State, 2 Swan. 353. As to the impossibility of avoiding inequalities in highway taxes, see Hingham, etc., Turnpike Co. 9. Norfolk Co., 6 Allen, 353, 359, per Bigelow, Ch. J. In Williams 2. Cammack, 27 Miss., 209, 224, Handy, J., speaking of a special levee assessment, says: “Nor is it any objection to the constitutionality of the act that it operates injuriously upon the appellant. Every revenue Dill, and every work of public improvement must, more or less, have such an ef- fect. But they must be submitted to as the necessary action of the machinery of government, and as individual sacrifices to the general good, in order that the advantages of the social compact may be enjoyed. This principle rests on the very foundatiens of society, and is illustrated in every day’s experience; the citizen yielding his natural rights, even of life, liberty or property, to the public good. But he can only claim immunity when it is secured to him by the principles of the constitution.” In People v. Whyler, 41 Cal., 351, 355, a levee tax was objected to as not equal, because not apportioned according to benefits. The court held that it was required to be apportioned by value, and Rhodes, Ch. J., says: “A tax is equal and uniform which reaches and bears with the like burden upon all the property within the given district, county, etc. It bears the like burden when the valuation of each parcel is ascertained in the same mode—the mode pre- scribed by law —and when it is subject to the same rate of taxation as other property within the district, county, ete. Absolute equality is unattainable, and the benefits derived or to be derived from the expenditure of the tax can- not be taken into account.” 1 West Chester Gas Co. v. Chester County, 30 Penn. St., 232, per Porter, J., cited with approval in Pittsburgh, etc., R. R. Co. ». Commonwealth, 66 Penn. St., 73, 77-8. See also Erie Railway Co. 0. Commonwealth, id., 84. Congress having levied a tax upon an article, is not thereby precluded from levying another. U. 8. 0. Benson, 2 Cliff, 512. In Philadelphia Savings Fund o. Yard, 9 Penn. St., 359, 361, in referring to the case of The Carlisle Bank, 8 Watts, 291, the following remarks are made: “The horror of double taxation, manifested in that case, is unsuited to the times; for it has obtained, and must prevail in the exigencies of the commonwealth; moreover, it is expressly rec- ognized and established by the 6th section of the act of 16th April, 1845. It exists in the case of ground rents, where the ground itself and the redztum issuing from it are taxed; in a tax upon a mortgage to the whole value of the land, and the land itself. And so, where A. borrows money on mortgage and loans it to C. on bond, and who loans a part of it to D., it is taxed in the cur- rent of each actual employment. In the complexity and involutions of busi- ness, a dollar is employed many times in a day, and in each actual employ- ment represents the property, business, or the person of him who uses it. And in cases of this kind, it is the usufruct and not the actual or identical money, that is taxed.” In Pittsburgh, etc., R. R. Co. ». Commonwealth, 66 Penn. St CH. VL] EQUALITY AND UNIFORMITY IN TAXATION. 163 tax, when we show that it reaches twice the same property for the same purpose. This may have been intended, and in many cases at least, is admissible.! 77, the following remarks are made by the same court: “It [the case in judg- ment] resulted even in double taxation, that has never been considered un- lawful in this state. On the contrary, it is of frequent occurrence. The real and personal property of a corporation may be taxed, although it pays a tax on the stock which purchased it. Lackawana Iron Co. 0. Luzerne County, 42 Penn. St., 424, 431. See Carbon Iron Co. v. Carbon County, 39 Penn. St., 251; West Chester Gas Co. o. Chester County, 30 Penn. St., 3832; Philadelphia Sav- ings Fund v. Yard, 9 id., 361. The power of the legislature is as ample to tax twice as to tax once (30 id., 332); and itis done daily, as all experience shows. 9 id., 861. Equality of taxation is not required by the constitution. Kirby 2. Shaw, 19 id., 258. The stock may be full taxed to the institution and also to the stockholders (Whitsell 7. Northampton County, 49 id., 526, 529); and the stock- holder in a corporation of another state is obliged to pay a tax to Pennsylvania on his stock, he being a resident here, although the whole profit and stock is subject to taxation in the state of its location.” See also Toll-bridge Co. v. Osborn, 35 Conn., 7; St. Louis Life Ins. Co. v. Board of Assessurs, 56 Mo., 503, per Forts, J. In Eyre o. Jacob, 14 Grat., 422, a tax on collateral inherit- ances was sustained against an objection that taxation of property was re- quired to be uniform. ee, J., points out that it is not a tax on property, but on the privilege of succeeding to the inheritance. 1The case of The Toll-bridge Co. v. Osborn, 35 Conn., 7, isa very strong one. A corporation was chartered to build and maintain a toll-bridge, with power, “for the purpose of carrying the resolve into effect,” to purchase and hold lands not exceeding one hundred acres. The company built the bridge, and soon after purchased a large quantity of mud flats adjoining the bridge, and erected wharves upon it, which became of great value and were profitably rented. An act, passed in 1847, provided that the real estate of any private corporation, “above what was required and used for the transaction of its ap- propriate business,” should be liable to be assessed and taxed to the same ex- tent as if owned by individuals. eld, that the real estate thus used by the company for wharves, was liable to taxation under the statute. The facts in this case were such, that the property was really taxed several times. By the decision of the court, the corporation was compelled to pay a tax upon this property; the shareholders paid a tax upon their shares of stock which represented this property; and the corporation also paid a tax upon its capital stock; and, furthermore, as a great part of the stock was owned by a railway company, they might be taxed as shareholders, and also upon their capital stock, of which these shares were a part, while the share- holders in the railway company might be required to pay a tax upon their shares also. The court held, that it mattered not, so long as the legislative intent was clear. While it was the general policy of the law to avoid duplicate taxation, yet, where the meaning of the statutes is clear, the court cannot pronounce 164 LAW OF TAXATION [cH. VI. There is a sense. ‘.:ever, in which duplicate taxation may be understood—and wich we think is the proper sense—which would render it wholly madmissible under any constitution requir- ing equality «nd uniformity in taxation. By duplicate taxation in this sense is understood the requirement that one person or any one subject of taxation shall directly contribute twice to the same burden, while other subjects of taxation belonging to the same class are required to contribute but once. We do not see, for instance, how a tax on a merchant’s stock by value could be supported, when by the same authority and for the same purpose the same stock was taxed by value as a part of his property. This is a very different thing from one tax upon property and another upon the business, though the latter may indirectly reach the property ; here is no cireumlocution, no ques- tion of ultimate effects; but a tax levied twice on the same subject only under a different name. The same may be said of a tax on the property of a corporation and also on the capital which is in- vested in the property; if the latter is taxed as property, this also is duplicate taxation, and as much unequal as would be the taxa- tion of a farmer’s stock by value, when on the same basis it is taxed as a part of his general property. When, for instance, the money paid in as capital of a manufacturing corporation has been invested in buildings and machinery, these are what then represent the capital, and to tax the capital as valuable property distinct from that which then represents it would be to tax a mere shadow ;? it them invalid because they admit of duplicate taxation. Compare Jones, etc., - Manuf. Co. ». Commonwealth, 69 Penn. St., 187. 1That the capital of a corporation is represented by the property in which it has been invested, can hardly require the citation of authorities, but the following may be referred to. Gordon ». Baltimore, 5 Gill, 231; Baltimore ». Baltimore and Ohio R. R. Co., 6 id., 288; Tax Cases, 12 Gill and J., 117; Rome R. R. Co. v. Rome, 14 Geo., 275; Augusta v. Georgia R. R., etc., Co., 26 id., 631; Hannibal, etc., R. R. Co. v. Shacklett, 30 Mo., 550; Auditor, ete., 0. New Albany, etc., R. R. Co., 11 Ind., 570; Conwell v. Connersville, 15 id., 150; Mutual Ins. Co. o. Supervisors of Erie, 4 N. Y.,442; Salem Iron Factory ». Danvers, 10 Mass.,515; Amesbury Woolen, etc., Co. v. Amesbury, 17 id., 461; Boston, etc., Glass Co. v. Boston, 4 Met., 181; Boston Water Power Co. ». Boston, 9 id., 199; Bangor & Piscataqua R. R. Co. v. Harris, 21 Me., 583; Cumberland Marine R. ». Portland, 87 Me., 444; Savings Bank v. New London, 20 Conn., 111,117; Bridgeport ». Bishop, 33 id., 187; Toll Bridge Co. ». Osborn, 35 id., ",; New Haven v. City Bank, 31 id. 106; Bank of Cape Fear o. Edwards, 5 CH. VL] EQUALITY AND UNIFORMITY IN TAXATION. 165 would be to make the shadow stand for the substance in order that it might be taxed, when the substance itself is taxed directly under its own proper designation. We do not speak here of a taxation of the property and also of the franchise; those being two things as will be seen further on. 1 Presumption against duplicate taxation. thas very pro- perly and justly been held that a construction of the laws was not to be adopted that would subject the same property to be twice charged for the same tax, unless it was required by the express words of the statute, or by necessary implication.? It is a funda- mental maxim in taxation that the same property shall not be subject to a double tax payable by the same party, either directly or indirectly ; 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 general words in the law which would seem to. imply that it may be taxed a second time.* This Ired., 516; Smith o. Exeter, 37 N. H., 556; Fitchburgh R. R. Co. ». Prescott, 47 N. H., 62. For the distinction between atax on the franchise of a corporation, and a tax on its capital as property, see Bank of Commerce v. New York City, 2 Black, 620; Van Allen v. The Assessor, 3 Wall.,573; Bradley v. People, 4 id. 459. The law of these cases is that where the tax ison the capital by a valuation as property, it is invalid if the capital is invested in nontaxa ble securities, 1 When the capital stock of a corporation is required to be assessed at its “ actual value,” this means above or below the par value according to the fact. Oswego Starch Factory v. Dolloway, 21 N .Y., 449. ?Salem Iron, etc., Co. v. Danvers, 10 Mass., 514; Amesbury Woolen, etc., Co. vo. Amesbury, 17 id., 461; Water Power Co. v. Boston, 9 Met., 199, 202; Bank of Georgia v. Savannah, Dudley, 130; Gordon’s Executors v. Baltimore, 5 Gill, 231; The Tax Cases, 12 Gill and J., 117; Savings Bank v. New London, 20 Conn., 111, 117; Toll Bridge Co. ». Osborn, 35 id., 7; Osborn v. N. Y. and N. H. R. R. Co., 40 id., 491; Smith » Burley, 9 N. H, 423; Savings Bank ». Ports- mouth,52N.H.,1% 3 Savings Bank ». Nashua, 46 N. H., 389-398, citing Smith v. Burley, 9N. H., 423 and other cases. And see Osborn v. N. Y and N. H.R. R. Co., 40 Conn., 491,494. In State v. Sterling, 20 Md., 502, a law taxed savings banks a certain percentage on all the deposits held by them on a certain day. Held to be void because not exempting the investments in securities otherwise taxed or-not taxable at all. 166 LAW OF TAXATION. [cH. VI. is a sound and very just rule of construction, and it has been ap- plied in many cases where, at first reading of the law, a double taxation might seem to have been intended. Application of the presumption. A few instances in which this rule of presumption has been applied will show what taxation has been held to be in effect duplicate taxation, and for that reason excluded from the general language made use of in tax laws. Under a statute in Massachusetts, shares in any incorporated company possessing taxable property were taxable to the owners in the towns of their residence respectively. While this was in force, a manufacturing corporation was assessed under the gen- eral law for the taxation of property to its owners, for all its real and personal estate in the town where its business was carried on. It was held that this taxation of shares was by implication to be regarded as standing in the place of a taxation of the personal estate to the corporation itself, since, if both were taxed, it would in effect be duplicate taxation. As to the real estate, however, the conclusion was different. The taxes upon that had always, in that state, been paid exclusively to the town in which it was sit- uated. In all successive valuations made in pursuance of the laws for that purpose, each town had been charged with the value of all the real estate within it, in the apportionment of the tax among the several towns. It would therefore be unjust if the real estate which was included in estimating the amount of taxes charged on a town, by being assessed as represented by the shares of stockholders elsewhere, should be exempted from contributing to the discharge of such taxes. The policy of all the tax laws had been that the land should contribute to the local taxes irre- spective of the residence of the owner, and the implication that this was intended in the case of corporate real estate was so strong 1 Bank of Georgia». Savannah, Dudley, 132; Factory Co. v. Gardiner, 5 Greenl., 1383; Glass Co. v. Boston, 4 Met., 181; Savings Bank v. Worcester, 10 Cush., 128; American Bank v. Mumford, 4R.1., 478,482; Savings Bank ». Gardiner, 4 id., 484; Smith v. Exeter, 87 N. H., 556; Toll Bridge Co. v. Osborn, 35 Conn., 7; State v. Hannibal, etc., R. R. Co., 37 Mo., 265. In the case of Kimball v. Milford just decided by the supreme court of New Hampshire (2 Am. Law Times’ Reports, 504), stock in a foreign corporation, which by its charter pays aspecific tax in lieu of all others, was held not taxable in New Hampshire under its statutes. CH. VI.] EQUALITY AND UNIFORMITY IN TAXATION. 167 that the counteracting presumption against an intent to impose duplicate taxation must yield to itt So in Georgia it has been held under a city charter empow- ering the corporation in general terms to levy taxes on real and personal estate, that while the city might tax the stockholders of a bank upon their shares, this taxation would by implication ex- clude the taxation of the bank on its capital stock.? In Pennsyl- vania it has been decided that a tax on the discount business of a bank is in a degree a tax upon the capital of the bank. Where therefore it was provided by its charter that the bank should not be subject to taxation on its capital stock, for any other than state purposes, the tax on its discount business would be inadmissible but for the fact that the charter was granted under and subject to a provision in the state constitution which made it at all times subject to legislative alteration or repeal.* So in Massachusetts it is held that a bank which pays a specific tax on its capital stock is not taxable on collaterals deposited with 1Salem Iron Factory v. Danvers, 10 Mass., 514. This case was followed after some change in the statute, in Amesbury Woolen, etc., Co. ». Amesbury, 17 id. 461. And see as to the real estate, Amesbury Nail Factory Co. v. Weed, 17 id., 58; Tremont Bank ». Boston, 1 Cush., 142; Boston Water Power Co. ». Bostun, 9 Met., 199. In Middlesex R. R. Co. v. Charleston, 8 Allen, 330, where shareholders in a street railway were taxable on their shares in the towns where they resided, it was held not competent to tax the personal property of the corporation used in and necessary for the prosecutiun of its business. “The value of the personal property owned by the corporation is included as a subject of taxation in the value of the shares; as in the case of banks, insur- ance companies, manufacturing corporations and other railroads.” Hoar, J., p. 833. Compare The Tax Cases, 12 G. & J.,117. To tax a bank on its prop- erty and also the stockholders on their shares was regarded as duplicate tax- ation, and not allowable under the Maryland laws, in Gordon’s Ex’rs ». Balti- more, 5 Gill, 231, and Baltimore vo. B. & O. R. R. Co., 6 Gill, 288. And see in Rhode Island, American Bank ». Mumford, 4 R. I., 478; Providence Insti- tution v. Gardiner, 4 id., 484. ? Bank of Georgia v. Savannah, Dudley, 182, citing with approval the Massa- chusetts cases. So where a bank was exempt from any tax, except one of twenty-five cents on every share of its stock owned by individuals, it was de- cided that stockholders were not taxable on their shares. Bank of Cape Fear ». Edwards, 5 Ired., 516. See also Johnson v. Commonwealtli, 7 Dana, 338; State vo. Tunis, 23 N. J., 546. 3 Tron City Bank v. Pittsburgh, 37 Penn. St., 340. 168 LAW OF TAXATION. [cH. VI it as security for loans.1 So if it appear that a corporation is by its charter exempt from taxation, the shares in the hands of the shareholders are to be understood as exempt also.” On the other hand a tax on the market value of the capital stock of a corporation, over and above the value of its real and personal property, 1s not duplicate taxation by reason of the tan- gible property being also taxed, but is a tax upon the franchise.’ So a tax on the deposits of savings societies has been held a tax on the franchise and nota tax on property.* And where by statute “no income shall be taxed which is derived from property subject to taxation; a merchant may nevertheless be taxed on his income under the general law taxing income from a profession, trade, or employment, this income being the “ net result of many combined influences; the use of the capital invested ; the personal labor and services; * * the skill and ability with which they lay in or from time to time renew their stock; the carefulness and good judgment with which they sell and give credit; and the 1 Waltham Bank v. Waltham, 10 Met., 384; Tremont Bank ». Boston, 1 Cush., 142; and see Salem Iron Factory v. Danvers, 10 Mass., 514. 2 State v. Branin, 23 N. J., 484, citing Johnson v. Commonwealth, 7 Dana, 342; Tax Cases, 12 G. & J., 117; Gordon’s Ex’rs v. Baltimore, 5 Gill, 281; Smith v. Burley, 9 N. H., 423. See also State v. Bentley, 23 N. J., 532; State v. Powers, 24 id., 400; Bank of Cape Fear v. Edwards, 5 Ired., 516. And com- pare Wilmington, etc., R. R. Co. v. Reid, 18 Wall., 264. So held in Hamilton County v. Massachusetts, 6 Wall., 632, in reliance upon a settled course of decisions in Massachusetts. See Commonwealth v. Hamilton Man’f. Co., 12 Allen, 298, 306. Shares of stock in a foreign corpora- tion may be taxed in full to resident owners, irrespective of the taxation of its property where it is located. Dwight. Boston, 12 ‘Allen, 316. A. state may tax the franchise or the capital of a corporation by such rule as it may prescribe, even though it be arbitrary. And if the corporation be a railroad company owning aroad in two states, one state may tax the corporation on a proportiona: part of its stock, measured by the length of the road in that state. Minot v. Philadelphia, etc., R. R. Co., 18 Wall., 206. 4 Society of Savings v. Coite, 6 Wall., 594; Provident Institution 7. Mussa- chusetts, id., 611. See Portland Bank v. Apthorp, 12 Mass, 252; Com’th v. Savings Bank, 5 Allen, 428; People ». Supervisors of Niagara, 4 Hill, 20; Farmers’ Loan & Trust Co.v. New York, 7 id., 261; Bank of Utica ». Utica, 4 Paige, 399; Coite v. Society for Savings, 32 Conn., 173; Coite v. Conn. Mu. Life Ins. Co., 36 id., 512; [linois Mu. Ins. Co. v. Peoria, 29 I11., 180; Oliver». Washington Mills, 11 Allen, 268; Commonwealth v. Cary Improving Co., 98 Mass., 19° Attorncy General v. Mining Co., 99 id., 148. CH. VIL] EQUALITY AND UNIFORMITY IN TAXATION, 169 foresight und address with which they hold themselves prepared for the fluctuations and contingencies affecting the general com- merce and business of the country. To express it in a more sum- mary and comprehensive form, it is the creation of capital, indus- try and skill.”? So it is competent to tax brokers upon their an- nual receipts, notwithstanding they pay a license tax for the priv- ilege of carrying on that business.2 Soa tax upon the amount of the nominal capital of a bank, without regard to loss or deprecia- tion, has been likened to ‘one annexed to the franchise as a roy- alty for the grant.”® A tax on the interest paid by a corporation on its indebtedness, though collected from the corporation, is still a tax on the creditor; the corporation being only made use of as a convenient means of collecting the tax. Soa taxon the shares of stockholders in a corporation is a different thing from a tax on the corporation itself or its stock, and may be laid irrespective of any taxation of the corporation when no contract relations forbid.® So it has been held that a corporation which was required to pay 1 Wilcox v. Commissioners of Middlesex, 103 Mass., 544, per Ames, J. 2 Drexel ». Commonwealth, 46 Penn. St.,31. In this case the tax law was objected to as retrospective because, in order to arrive at the proper measure of taxation, it required a return of the receipts for the preceding year, and made that the basis of taxation, but the court justly held there was nothing to this. 8 Bank of Commerce v. New Yerk, 2 Black, 620, 629, per Nelson, J. 4 Haight». Railroad Co.,6 Wall., 15; Railroad Co. v. Jackson, 7 id., 262; United States ». Railroad Co., 17 id., 822. In the second of these cases a state tax on the interest on bonds issued by a railroad company and secured by mortgage on aline lying partly in another state was held to be void, on the ground that to the exteut of the road out of the state she was “‘ taxing property and inter- ests beyond her jurisdiction.” It is to be said of this case that the plaintiff « was a nonresident, and for that reason not taxable in the stateon his bonds, under the subsequent decision of the same court. State Tax on Foreign Held Bonds, 15 Wall., 300, 323. Ruilroad bonds are taxable to the owners notwith- standing the company pays a tax on “the market value of their stock and their funded and floating debt, in lieu of all other taxes on railroad property and franchises.” Bridgeport v. Bishop, 33 Conn., 187. 5 Tremont Bank v. Boston, 1 Cush., 142; State v. Petway, 2 Jones Eq., 396; State o. Thomas, 26 N. J., 181; Lycoming County v. Gamble, 47 Penn. St., 106; Whitsell 1. Northampton County, 49 id., 526; Union Bank ». State, 9 Yerg., 49), Oswego Starch Factory v. Dollaway, 21 N. Y., 449; People ». Bradley, 89 IIL, 130,141; Conwell v. Connersville, 15 Ind., 150; Van Allen v. Assessors, 3 Wall., 573, 584; State Tax on Foreign Held Bonds, 15 id., 300, 828; Cumberland Marine Railway ». Portland, 87 Me., 444. 170 LAW OF TAXATION. [cH. VI. a bonus on its capital in lieu of a tax on dividends, might never- theless be taxed on its “net earnings or income ;” this not being the same thing as dividends.! So in case of a corporation which pays a specific tax, an exemption “from any other or further tax or im- position,” will not prevent any real estate it may own, and which is not needed for corporate purposes, from being taxed. “The power granted to a corporation to hold land is limited to the pur- poses for which the power wasconferred. This is the general rule, and governs inthe construction of the exempting clause. The tax levied may so far operate as a double tax, the property being already taxed in the shape of capital; but if the company choose to invest capital in property not necessary for their business, such as the legislature did not contemplate in their grant, they cannot complain that it is twice taxed. Double taxation is not uncon- stitutional.’ It has often been decided that a tax on the franchise of a cor- poration, and also on its capital or property, was not duplicate taxation. The franchise, nevertheless, has a property value, and as a question of construction, it may sometimes be necessary to 1 Jones, etc., Manf’g Co. o. Commonwealth, 69 Penn. St., 187. That stock divided among stockholders as profits are dividends, see Lehigh Crane Iron Co, v. Commonwealth, 55 Penn. St., 448; State v. Farmer’s Bank, 11 Ohio, 94; Sun Mu. Ins. Co. v. New York, 8 N. Y., 241, 250. * Potts, J.,in State o. Newark, 25 N. J., 315, 317, citing Tatem o. Wright, 23 id., 429. See also Railroad Co. ». Reid, 13 Wall., 264, 268, per Davis, J., Illinois Central R. R. Co. . Irwin, Sup. Ct. Ill., 1875, 7 Chicago Legal News, 286. 2 Carbon Iron Co. v. Carbon County, 39 Penn. St., 251; Lackawana Iron Co v. Luzerne County, 42 id., 424; Tremont Bank ». Boston, 1 Cush., 142; Com monwealth v. Lowell Gas Light Co., 12 Allen, 75; Commonwealth v. Hamil- ton Manf. Co., id. 298; Wilmington, etc., R. R.Co. ». Reid, 64 N. C., 226; Mason o. Lancaster, 4 Bush, 406; Monroe Savings Bank o. Rochester, 37 N. Y., 8365; Bank of Commerce v. New York, 2 Black, 620, 629; Minot o. Rail- road Co., 18 Wall., 206. In Commonwealth o. N. E. Slate & Tile Co., 13 Allen, 391, 393, Wells, J., says: ‘The fact that the defendant corperation held prop. erty which was the subject of taxation in other ways, does not render this tax upon its franchise illegal. In the practical operation of the powers of taxa- tion, which are given in several forms, it is inevitable that double taxation shall occur in some cases. The legislature may relieve against it by allowing deductions if it sees fit to do so; but the court can only apply the law as it stands.” If the capital is invested in nontaxable securities, the franchise may still be taxed. M:uroe Savings Bank vo. Rochester, 37 N. Y., 365. And sea CH. VI] EQUALITY AND UNIFORMITY IN TAXATION. 171 hold that an exemption of the property of a corporation from tax- ation is an exemption of the franchise also. It has been so held in the case of a railroad corporation whose charter provided that “the property of said company and the shares therein shall be exempt from any public charge or tax whatever.”! The intent in such a case, when reasonably apparent on the face of the legis- lation, must control. It has been held that a tax on the capital stock measured by dividends was not a tax on dividends, and the corporation paying it was therefore liable to a tax on net earn- ings under a statute which provides that corporations not paying a tax on dividends shall be taxed on net earnings? A tax on ‘the capital stock actually paid in or secured to be paid in,” is a tax on the capital at its nominal amount, and is not to be in- creased or diminished by accumulations or losses. These cases will perhaps illustrate sufficiently the power of the legislature to impose taxation that in its result duplicates the burden, as well as the force of the presumption that the legislature, in its desire to lay all burdens of government justly, has never intended dupli- cate taxation unless plain language expressive of that intent has been employed. So far, the subject has been considered as the questions of equality and justice in taxation arise on the tax laws themselves. Of the steps necessary or proper to be taken in order to secure equality under such laws, it will be necessary to speak further on. Society for Savings ». Coite, 6 Wall. 594; Provident Inst. ». Massachusetts, 6 id., 611; Hamilton Co. v. Massachusetts, id., 632. 1Wilmington Railroad Uo. v. Reid, 13 Wall., 264; Raleigh, etc., Railroad Co. v. Reid, id., 269. In New Jersey where a corporation by its charter was to pay a certain tax on its capital stock paid in, and it was declared that “ no further or other tax or impost shall be levied or assessed upon said company,” this was held to exempt not the franchises merely, but the property also. State ». Berry, 17 N. J.,80; Camden & Amboy R. R. Co. o. Commissioner of Appeals, 18 id., 71. So it has been held that a tax on the gross income of a corporation cannot be laid when the stock is exempt. State v. Hood, 15 Rich., 11%. 2 Phenix Iron Co v. Commonwealth, 59 Penn. St., 104. A taxon capital in- vested in shipping is not duplicate taxation as applied to vessels upon which the harbor master’s fees have been paid. State v. Charleston, 4 Rich., 286. 3 Farmers’ Loan & Trust Co, v. New York, 7 Hill, 261, citing Bank of Utica 0. Utica, 4 Paige, 390; People v. Supervisors of Niagara, 4 Hill, 20. See Gor- don v. New Brunswick Bank, 6 N. J., 100; Rudderow ». State, 31 id., 512. 172 LAW OF TAXATION. [cH. VI. Commuting taxes, Tax laws sometimes provide for commu- tation; that is to say, for the substitution of sometning else for the tax that is levied. Thus, road taxes are sometimes levied in labor, with permission to commute by the payment of what is deemed an equivalentin money. Many of the special exemptions we have referred to were in the nature of commutations ; the state has received something as an equivalent for the ordinary taxa- tion which was released... Such commutations are competent when not forbidden by the constitution, and are supposed to pro- duce no inequality.2, Buta commutation must not be invidious ; if, as between individuals it selects one class for favor, and ex- cludes others, it is void.® Diversity of taxation in different districts. Reference has been made to cases which recognize the right to establish different rules of taxation in different districts, even when by the state constitution uniformity and equality in taxation are required, Such generai rules are made in view of the universal custom. to consult the circumstances of different districts, and the wishes of their people regarding the taxes to be levied therein as district taxes; and all presumptions are against any purpose to set aside that custom. Loval taxes may be levied on a different system in the different municipal districts, and for different purposes; 1See Gardiner v. State, 21 N. J., 557; Daughdrill ». Ins. Co., 31 Ala., 91. Where arailroad company pays a tax on its annual income in lieu of a tax on its property, the tax so paid is supposed to be a full equivalent for the prop- erty tax, and therefore there is no room for applying the rule of strict con- struction against the company, as if the substitution of one tax for the other was a privilege. Milwaukee, etc., R. R. Co. 0. Supervisors of Crawford, 29 Wis., 116. 2State Bank v. People, 4 Scam., 803; Illinois Central Railroad o McLean County, 17 Ill., 291. It was one of the stipulations in the charter of the Bal- timore & Ohio R. R. Co., that the corporation should pay fo the state one-fifth of the passenger fares received for passage on its branch road between Wash- ington and Baltimore. A. stipulation of this nature violates no provision of the federal constitution. B.& O. R. R. Co. o. Maryland, 21 Wall., 456. The same decision had previously been made by the state courts, and the position affirmed that the stipulation did not violate the state constitution. Waters 2. State, 1 Gill, 302, 308, 3So held of a commutation in labor for a highway tax; the permission to commute being extended only to male tax payers between the ages of 21 and 50. Cooper v. Ash, Sup. Ct. IL, 1875, 7 Chi. Leg. News, 393. CH. VI] EQUALITY AND UNIFORMITY IN TAXATION, 173 and this, not only when they are laid to supply mere local works and conveniences, but also when they are for purposes —- like the highways, for instance — which, though paid for locally, are for the benefit of the whole state and the use of all its people.? Monopolies. It seems scarcely necessary to say, that the rule of equality in taxation will forbid the power being employed for the purpose of building up monopolies. That it is capable of being so employed needs no demonstration; and that it some- times has been so employed, especially in the arrangement of the customs duties, is unquestionable; always, of course, under the pretense of an apportionment of taxes for the public good. Tax- ation of business and the license taxes are peculiarly liable to abuse in this direction,” especially if they undertake to limit the number to whom permits shall be granted; and if the state can exempt the large manufacturer from taxation while taxing his feeble competitor, as has been done in one state at least, it may take in this way a long stride in the direction of establishing a monopoly. ‘The spirit of a free constitution, if not its letter, for bids such legislation, and sound public policy forbids it also. One reason why taxation for private purposes is inadmissible, is that its tendency is to the building up of monopolies at the expense of the public who would suffer from them ;* it begins in a pretense for the public good, and it ends in crippling the gen- eral industry while it excites the general discontent.’ 18ee in general, People v. Central Pacific R. R. Co., 48 Cal., 398; Bright ». McCullough, 27 Ind.. 228; Commissioners of Schools v. Alleghany County, 20 Md., 489, 457; Merrick v. Amherst, 12 Allen, 500. 2See Judge Nott’s article on Monopolies in the International Review, Vol. 1, p. 870. Charles I. was able to exact large sums of money by enforcing a royal proclamation forbidding the erection of buildings in extension of Lon- don, and granting special permits on the payment of large sums for the privi- lege. Green’s England, ch. 8, sec. 5. 3See Philadelphia Association ». Wood, 39 Penn. S8t., 73, 82, per Lowrde, Ch. J. 4The right of a city to levy a tax for the construction of a patented pave- ment has been denied in some states, on the express ground, that the patent was a monopoly, and there could be no competition in bidding for the con- ° tract to construct it. Nicholson Pavement Co. v. Fay, 35 Cal., 695; Same v. Painter, id., 699; Dean ». Charlton, 23 Wis., 590; Burgess ». Jefferson, 21 174 LAW OF TAXATION. [cH. VI Permanence in legislation. It should be added, that in order that tax laws may not be oppressive, they should not be subject to frequent changes. Tariff laws frequently changed become a serious impediment to the business of the country, from the impossibility on the part of business men to calculate upon the future. To all the other contingencies of business is added this one,.which is, perhaps, greatest of all: that the federal legislature may so change the customs laws as to detract con- siderably from the market value of merchandise on hand, or increase largely the cost of something employed in manufacture, or in some other way to change greatly the outlook for any par- ticular trade. The excise laws are seldom changed without serious injury to individuals; and if others, perhaps, make for- tunes by the change, the possibility of such prosperity leads to speculations in possible changes, and even to endeavors to procure alterations for speculative purposes. Changes in other tax laws are not so injurious, but they are always liable to be oppressive, in individual cases, and. for this reason are not to be made except to cure positive evils. Mere inconveniences, to which the people have become accustomed, or even impolitic or unequal taxation to which trade and business have adapted themselves, are usually less harmful than considerable changes in the law with a view to their correction. This is a consideration of policy, with which the courts have no concern, but it seems sufficiently important to justify mention in this connection. ; La. An,, 148. Contra, Hobart v. Detroit, 17 Mich., 246; In re Eager, 46 N. Y, 100; In re Dugro, 50 id., 518. CH. VII.] THE APPORTIONMENT OF TAXES. Le or CHAPTER ¥ 11, THE APPORTIONMENT OF TAXES. The distinction between an exercise of the eminent domain, and one of the power to tax, consists mainly in this: that the one is an exceptional exaction for the public benefit, while the other is an exaction based upon the idea that it is only an equal and fair contribution to the public wants.! In order to make it equal and fair, apportionment is a necessary element in all taxation. The apportionment of a tax consists in a selection of the subjects to be taxed, and in laying down the rule by which to measure the contribution which each of those subjects shall make to the tax.* Apportionment is therefore a matter of legislation. ‘The power of taxing and the power of apportioning taxation are identical and inseparable. Taxes cannot be laid without apportionment, and the power of apportionment is, therefore, unlimited, unless it be restrained as a part of the power of taxation.” ® The methods of apportionment are diverse and numerous, but all taxes may possibly be arranged under the three heads of specific taxes, ad valorem taxes, and taxes apportioned by special benefits. Specific Taxes. Under this head may be ranged those which impose a specific sum by the head or number, or by some stand- ard of weight or measurement, and which require no assessment be- yond a listing and classification of the subjects to be taxed. Li- cense taxes and other taxes on business or occupations, stamp taxes, taxes on franchises and privileges, are usually specific, as are also many excise and customs taxes. 1 Blackwell on Tax Titles, 1; People». Brooklyn, 4 N. Y., 419; post, Ch. XX. 2« The power to tax necessarily involves the right to designate the property on which it is to be levied; in other words, to apportion the tax.” Ranney, J., jn Scoville v. Cleveland, 1 Ohio, N. 8., 126, 123, citing Cincinnati o. Gwynne, 10 Ohio., 192; Bonsall v. Lebanon, 19 id., 418. 3 Ruggles, J.. in People v. Brooklyn, 4 .N. Y., 419, 426-7. See Glascow ». Rouse, 43 Mo., 479, 489. 176 LAW OF TAXATION. (cH. VII. As regards all such taxes, the law by which they are laid is of itselfa complete apportionment. Ministerial officers have nothing to do but to list the subjects of taxation ; classify them where that is necessary ; ascertain the number, weight, measurement, etc., and collect the sum which the law has definitely fixed. If the taxes are stamp or license taxes, even the listing may not be required, but the individual who is to pay them will purchase his stamp or his license, by voluntary payment, as he may have occasion. Ad Valorem Taxes. A large proportion of the duties on imports are of this description, and so, sometimes, are many of the taxes which make up the internal revenue. The statute laying them prescribes the rule, but requires the.action of appraisers in appor- tioning them between individuals. By far the larger proportion ofall state taxation is also upon property by a valuation, and effect can only be given to it by means of assessors, who value the prop- erty and apportion the tax by their estimate. Taxes Apportioned by Benefits. As between districts, where an object for which taxes are to be levied pertains to two or more, the legislature sometimes makes the apportionment by its own action directly, with reference to the supposed interest of each in such object, or to the benefit each is likely to derivetherefrom. It may also provide for the apportionment by commissioners appointed for the purpose.’ This often becomes necessary in the case of roads and bridges lying partly in two or more districts, and also on the division of towns, counties, etc.” ‘See Salem Turnpike, etc., Corp. o. Essex County, 100 Mass., 282, and cases cited. The case was one of the appropriation of a turnpike road under the eminent domain, and an apportionment of the cost among the counties, cities and towns which it accommodated. See also Shaw »v. Dennis, 5 Gilm., 405. ? On the division of a county or town and the setting off of territory fora new one, the old county, unless it is otherwise provided by statute, will retain the property and remain liable-for the debts. North Hempstead v. Hempstead, 2 Wend., 109, 185; Hartford Bridge Co. v. East Hartford, 16 Conn., 149, 171, Windham »v. Portland, 4 Mass., 884-390; Hampshire a. Franklin, 16 id., 76, 85; Medford ». Pratt,4 Pick., 222; Montpelier v. East Montpelier, 29 Vt., 12, 20; Milwaukee v. Milwaukee, 12 Wis., 93. It will also retain the right to proceed in the collection of the taxes previously voted, and they will belong to it though collected in part from territory now set off. Devor v. McClintock, 9 W. & S., 80; Waldron ». Lee, 5 Pick., 323; Harman v. New Marlborough, 9 Cush., 525; Moss ». Shear, 25 Cal., 88; Morgan County ». Hendricks County, CH. VII. | THE APPORTIONMENT OF TAXES. 177 Elsewhere the constitutional provisions of a number of the states are referred to, which require state taxation of property to be by value. The judicial decisions are also cited, which hold that the local levies, commonly known under the head of assess- ments, though laid under the taxing power, are not taxes as the term is employed in the constitutions, and consequently may be laid by some other standard than that of value, if the legislature shall so prescribe. The standard more often established than any other is one which seeks to put upon each item of property a tax proportioned to the special benefit it is to receive from the expen- diture. There are different methods of making the apportion- ment between individuals: 1. Assessors or commissioners may be empowered to examine the district and apportion the tax ac- cording as they shall find that benefits will be received. 2. The legislature may determine that the benefits will be in proportion to value, area or frontage, and direct an apportionment accordingly. In another place it is shown that either course is admissible.! General principles of apportionment. The principles by which the legislative apportionment of taxes is to be tested have been so admirably stated in a Kentucky case, that we give at length the language of the court in preference to any attempt at stating them in our own language: “ When shall a tax be levied? To what amount? Shall it be a capitation or property tax? Direct or indirect? Ad valorem or specific? And what classes of property are the fittest subjects of taxation? are all questions wisely confided by our constitution to the discretion of the legislative department, subject to no other limitation than that of the moral influence of public virtue or responsibility to 32 Ind., 234. See Alvis v. Whitney, 43 id., 83. But it is competent for the legis- lature to make apportionment of debts and property in such a case, or to pro- vide for its being done, and to compel the necessary taxation to do what may be just in the premises. Bristol v. New Chester, 3 N.H., 524; Londonderry ». Derry, 8 id., 320; Willimantic o. Windham, 14 Conn., 457; Hartford Bridge Co. v. East Hartford, 16 id., 149-172; Granby v. Thurston, 23 id. 416; Mont pelier o. East Montpelier, 29 Vt. 12-20: Milwaukee v. Milwaukee, 12 Wis., 93; State v. Rice, 35 id., 178; Bowdoinham 2. Richmond, 6 Greenl., 112; Mar- shall County Court 9. Calloway County Court, 2 Bush, 93; Richland County ». Lawrence County, 12 Ill., 1; Borough of Dunmore’s Appeal, 52 Pa. St.,374. 1See Chapter XX. 12 178 LAW OF TAXATION. (cH. VIL public opinion. But in some other respects, and so far as the power of taxation may be effectual without being thus limited, it is in our opinion limited by some of the declared ends and prin- ciples of the fundamental laws. Among these political ends and principles, eyuality, as far as practicable, and security of property against irresponsible power, are eminently conspicuous in our state constitution. An exact equalization of the burdens of taxation is unattainable and utopian. But still there are well defined limits within which the practical equality of the consti- tution may be preserved, and which, therefore, should be deemed impassable barriers to legislative power. Taxation may not be universal, but it must be general and uniform. Hence, if a capita- tion tax be laid, none of the class of persons thus taxed can be constitutionally exempt upon any other ground than that of public service; and if a tax be laid on land, no appropriation land within the limits of the state can be constitutionally ex- empted, unless the owner be entitled to such immunity on the ground of public service. The legislature, in the plenitude of the taxing power, cannot have constitutional authority to exact from one citizen, or even from one county, the entire revenue for the whole commonwealth. Such an exaction by whatever name the legislature might choose to call it, would not be a tax, but would be, undoubtedly, the taking of private property for public use, and which could not be done constitutionally without the consent of the owner or owners, or without retribution of the value in money. “The distinction between constitutional taxation and the tak- ing of private property for public use by legislative will, may not be definable with perfect precision. But we are clearly of the opinion, that whenever the property of a citizen shall be taken from him by the sovereign will, and appropriated without his consent to the benefit of the public, the exaction should not be considered as a tax unless similar contributions be made by that public itself, or shall be exacted rather by the same public will, from such constituent members of the same community gen- erally, as own the same kind of property. “Taxation and representation go together. And representative responsibility is one of the chief conservative principles in our form of government. When taxes are levied, therefore, they, CH. VII.] THE APPORTIONMENT OF TAXES, 179 must be imposed on the public in whose name and for whose benefit they are required, and to whom those who impose them are responsible. And although there may be a discrimination in the subjects of taxation, still persons in the same class, and property of the same kind, must generally be subjected alike to the same common burden. - This alone is taxation according to our notion of constitutional taxation in Kentucky. And this idea, fortified by the spirit of our constitution, is, in our judg- ment, confirmed by so much of the twelfth section of the tenth article as declares, ‘Nor shall any man’s property be taken or applied to public use without the consent of his representatives, and without just compensation being previously made to him.’ ”! Apportionment presumptively just. Whatever the rule of apportionment that is thus established by legislation, it is pre- sumptively as just and equal in the opinion of the legislature as the circumstances would permit. It is not to be questioned for im- policy, and cannot be overthrown by showing that in particular instances it operates unjustly.? 1 Robertson, Ch. J., in Lexington v. McQuillan’s Heirs, 9 Dana, 513,516. See also Youngblood v. Sexton, Sup. Ct., Mich., Oct. term, 1875. * As to diversity in apportionment, see Anderson v. Kerns Draining Co., 14 Ind., 199; Layton ». New Orleans, 12 La. An. 515; Wallace v. Shelton, 14 id., 498. Taxation of merchants by sales is not unequal. Sacramento v. Crocker, 16 Cal., 119. That the courts can afford no relief for what is merely an un- wise apportionment, see Tallman »v. Butler County, 12 Iowa, 531. That a license tax may be apportioned in reference to the size of the town in which the privilege is to be exercised, see State v. Schlier, 3 Heiskell, 281. A singular case of apportionment was that in Ould ». Richmond, 23 Grat., 464. The tax was a license tax on lawyers, who were classified in six classes by the finance committee of the common council, and the tax was dlif- ferent in the several classes. The tax was sustained against an objection to its inequality. The classification seems to have had in view the value of ‘the privilege the license gave, the extent of the business, the income, etc. In Berney v. The Tax Collector, 2 Bailey 654, 681, O’-Nzell, J., in speaking to objections which were made to a tax on bank dividends, says : “It may be that the tax on the dividends may operate unequally in that it is virtually a tax on money at interest, which is not generally subjected totaxation. This objection, however, is not addressed to the proper forum; it belongs to the legislature, not to the judiciary, to decide on its propriety and force. The legislature may select any property they please, to be taxed. If the tax is to operate generally on every citizen, who may own the property declared liable to it, it would be constitutional. If an act purports to exempt one class of 180 LAW OF TAXATION. [cH. VII. Apportionment imperative. But the requirement of ap. portionment is imperative! And whenever the tax is a direct levy on property, there must be a taxing district. Given a tax and a district, then the sum demanded of any one person, or laid upon any one parcel of property, must have fixed relation to the whole tax, as well as to that demanded of every other person or laid upon every other piece of property. Without this the exac- tions of money for the public are mere forced contributions, and taxation will differ from the eminent domain only in this, that the latter demands the property of the citizen when necessity re- quires it, and on making compensation, while the former exacts it at discretion and without compensation.* Of apportionment in general the following rules may perhaps safely be predicated : 1. Though the districts are established at the discretion of the legislature, the basis of apportionment which is fixed upon must be applied throughout the district. There cannot be two rules of apportionment for the same tax in the same district; if there could be, there might be any number, and in effect there would be none at-all, and every man might be assessed arbitrarily.‘ citizens, owning property upon which it imposes a tax in the hands of others, it might be a discriminating tax, and unconstitutional.’ In Youngblood ». Sexton, Sup. Ct., Mich., Oct. term, 1875, a tax on business was objected to because the sum levied was uniform and did not discriminate according to the business done; but the court say, this is clearly within the power of the legislature, who must determine conclusively whether this method is or is not more just and politic than any other. ‘Henry v. Chester, 15 Vt., 460; Tide Water Co., ». Coster, 18 N.J. Eq., 518, per Beasley, Ch. J. * Christiancy, J., in Woodbridge ». Detroit, 8 Mich., 274, 309, following and approving Lexington v. McQuillan’s Heirs, 9 Dana, 513. Compare State ». Portage, 12 Wis. 562; Weeks v. Milwaukee, 10 id., 242, 258; Chicago ». Larned, 34 Ill. 203; Creote ». Chicago, 56 id., 422; Weiler o. St. Paul,5 Minn., 95; Wilson v. Supervisors of Sutter, 47 Cal., 91. 3Q’Kane v. Treat, 25 IL, 557, 561; Fletcher o. Oliver, 25 Ark., 289. *Tide Water Co. v. Coster, 18 N.J. Eq., 518. In Wilson o. Supervisors of Sutter, 47 Cal., 91, it was held incompetent to authorize the supervisors to remit a levee tax on part of the district. And yet it would have been compe- tent originally to so bound the district as to exclude the part on which it was proposed to remit the tax. That the basis of the apportionment is not necessarily the same for general CH. Vil] THE APPORTIONMENT OF TAXES, 181 2. Though the apportionment must be general, a diversity in the methods of collection violates no rule of right, and is as much admissible as a diversity in police regulations. Indeed, this may, under some circumstances, be an absolute necessity. Thus, before the civil war had been brought to a termination, the taxes under internal revenue laws were laid by general rules, but special regulations were required for their enforcement in insur- rectionary districts. So a land tax might be assumed by one state, while in another it might be necessary to have elaborate pro- visions for the sale of the property taxed. 3. It is no objection to a tax that the rule of apportionment which has been provided for it fails in some instances, or even in many instances, of enforcement. LEvasions of duty are liable to and local taxes, even when value is the standard, is illustrated by the case of Insurance Co. v. Baltimore, 23 Md., 296. Itappears from that case that for the purposes of an apportionment of state taxation among the municipal divisions, the nominal capital of private coporations was assumed to be the value. But in imposing the tax on the corporations themselves, or their members, the actual value was ascertained. This method would be likely to lead to some inequal- ities in the distribution of state taxation between districts, but they could not be serious. In this connection may be mentioned several cases in which classes of tax- able property were attempted to be relieved from the apportionment. In one of these, the personal property was uot to be taxed for the payment of a city debt, for the reason, probably, that the purpose for which the debt was con- tracted was supposed to have benefited specially the real estate. Gilman 2. Sheboygan, 2 Black, 510. Others were where in assessing the real estate for municipal taxes, the value of improvements was required to be excluded. In all these cases, the discrim- ination has been held to be beyond the constitutional power of the legisla- ture. Ifthe tax is to be assessed for a corporate purpose, it must be uniform as to persons and property. The burden must be imposed upon all the prop- erty within the limits to be taxed. Any other rule would utterly destroy the equality and uniformity contemplated by the constitution. If personal prop- erty or improvements may be exempted, with the same propriety and justice the law might compel one half the real estate within this district to sustain the whole burden. Thornton, J., in Primm. Bellville, 59 Tll., 142, 144; Hale ». Kenosha, 29 Wis., 599. The tax in the Wisconsin case was for a railroad debt; in the other fora sewer. In Baltimore v. Hughes,1G. & J., 480, where a city council had authority to levy a tax for a public improve- ment on the district benefited thereby, it was held that if the ordinance providing for the tax showed the improvement to be for the general benefit of the city, and not of the particular district in which the tax was ordered, the tax was void. 182 LAW OF TAXATION. [cH VIL occur under all laws; but an evasion by one individual cannot give another a legal right to be excused. If the law establishes a uniform rule, its validity cannot depend upon the certainty or uniformity of its enforcement. 4. The apportionment of the tax is not to be extended to em- brace persons or property outside the district. This is a matter of jurisdiction, and if there are any exceptions to the rule they must stand on very special and peculiar reasons.” 5. Although exemptions may be made, as has been previously shown, special and invidious discriminations against individuals are illegal. This, so far as we know, is not disputed; and there is plausible ground for at least a question, whether the principle may not apply in some cases to the establishment of small dis- tricts for the construction of important public works; districts, the establishment of which, in view of the purpose for which the tax is to be laid, is equivalent to the singling out of a few persons for invidious discrimination. It has been held in one case that a statute was void which, as to certain portions of a city street, em- powered the common «ouncil to cause it to be improved in a man- ner exceptionally expensive, at the cost of the abutting owners, and against their will, when as to all the other streets of the city the owners of the larger proportion of the frontage must petition for such an improvement before it could be ordered.4 The statute was looked upon as an abuse of the legislative power to apportion tax- ‘In United States v. Riley, 5 Blatch., 204, 209, Shipman, J., speaking of the internal revenue law, says: “ The law is uniform, and thereby conforms to the constitution. Its validity does not depend on the celerity or uniformity with which it can be executed in some disturbed districts of the country. Tax laws, both state and national, are required to be uniform. This is an elementary principle of legislation, resting upon the solid foundation of justice. But it is a novel doctrine that a law, uniform in its provisions, can be annulled by the refusal of a portion of those on whom it is designed to operate to comply with its provisions. If this notion were to prevail, civil commotion or foreign invasion within a small district of the country would paralyze the govern- ment and repeal the fundamental law upon which its existence depends.” 2 See ante, pp. 14, 42. 3Therule of uniformity applies to wharf and dockage charges laid on the commerce of a city. People v. 8. Fr., etc., Railroad Co., 35 Cal., 606. 4 Howell ». Bristol, 8 Bush, 493, 497. Compare Covington ». Casey, 3 id. 698; Washington Avenue, 69 Penn. St., 352. CH. VII] THE APPORTIONMENT OF TAXES. 183 es; as perhaps it was. But the case must be very clear to warrant the court in holding that the legislature, in acting upon a subject within its admitted authority, has deprived itself of power by abusing it. 1In Arbegust 2. Louisville, 2 Bush, 271, 275, Williams, J., has the following remarks regarding the change of taxing districts by extension of city bound- aries: ‘‘ When, in the judgment of the legislature, the interest of a suburban population demands local regulations, and the peace, tranquillity and order of the public indicates that such is necessary, we cannot doubt its constitutional power to so enact, nor question its power to tax, for such purposes, the real as well as the personal estate of the people, nor the large as well as the small lots included therein; for it is more consonant with the entire genius, equality and justice of our constitution and laws, that each should bear the burdens of that government which protects his person and property according to the worth of his estate, than to discriminate against the small in favor of the large prop- erty holders. But whatever may be said of the intrinsic justice of such a measure, there is no power in the courts to control this, when the taxing power is conferred in good faith to uphold local government and give police regula- tions to the population, and not merely to embrace taxable property for reve- nue purposes in order to lighten the burdens of others.” 184 LAW OF TAXATION. (cH. VIIL CHAPTER VIII OFFICIAL ACTION IN MATTERS OF TAXATION. Necessity for official action. Taxation is an act of govern. meni. Government can only perform its functions by means of officers, and must make all its demands upon its citizens through the medium of official action. However just it may be, that an individual, in any condition or under any specified circumstances, should contribute a part of his means to government revenues, there is no lawful method of compelling him to do so, except through the compulsion of official process. No individual as such, or by virtue of his citizenship, can compel another to perform his duty to the state. He must come clothed with the authority of the state for the purpose, or, in contemplation of law, he comes as a trespasser, whose lawless intrusion may rightfully be resisted and repelled. Officers, who are. An office is defined to be a public charge or employment, and he who performs the duties of that office is an officer! There are legislative, executive and judicial officers, with duties pertaining to their respective departments of the gov- ernment, and there are also inferior officers, commonly designated ministerial, whose duty it is to execute mandates lawfully directed to them by superiors, whether of one department or of another.” The proceedings in tax cases are entrusted by the law in part to officers who perform mere ministerial duties, and in part are confided to those who, though not belonging to the judi- cial department, have functions which in a certain sense are judi- cial. Officers de facto. It is sometimes found that the person who is performing the duties of an office is not the one to whom the 1 Marshall, Ch. J., United States v. Maurice, 2 Brock., 96, 102. Bouvier’s definition of an officer is “one who is lawfully invested with an office ;” which seems to exclude what are known as officers de facto. * Bouvier Dic., Tit., Officers; People v. The Governor, 29 Mich., 320. CH. VIII] OFFICIAL ACTION IN MATTERS OF TAXATION. 185 law, if properly followed, would have confided it. This may hap- pen from an uncertainty regarding the method by which the officer should be chosen, a dispute of fact concerning the result of the election which has been held, or from many other causes. If in any such case, a person claiming to be chosen solves the doubt in his own favor, and takes possession of the office, and if the pub- lic acquiesce in his assumption, he then performs the duties of the office, and comes within the definition which has been given of an officer. But while he is an officer in fact, if he is not rightfully such, he may at any time be ousted of his position by judicial pro- ceedings, instituted in behalf of the state, at the instance of the public prosecutor. Perhaps also the law of the state will allow the person rightfully entitled, and who, by the wrongful posses- sion, is excluded from the office, to institute a proceeding for the purpose on his own behalf. From what has been said, it will be seen that there may therefore be officers dejure and officers de facto. An officer de jure is one who not only is invested with the office, but who has been lawfully appointed or chosen, and therefore has a right to retain the office and receive its perquisites and emolu- ments. An officer de facto is defined to be one who has the reputa- tion of being the officer he assumes to be, and yet is not a good officer in point of law.’ He comes in by claim and color of right, or he exercises the office with such circumstances of acquiescence on the part of the public, as at least afford a strong presumption of right, but by reason of some defect in his title, or of some in- formality, omission or want of qualification, or by reason of the expiration of his term of service, he is unable to maintain his pos- session, when called upon by the government to show by what title he holds it? It is immaterial in what the defect consists, or whether the claim isin good faith or merely colorable. The public acquiescence and reputation attach certain important consequences ' Parker o. Kett,1 Ld. Raym., 658, per Holt, Ch. J.; King v. Corp. of Bed- ford Level, 6 East, 356, 368, per Hllenborough, Ch. J.; Tucker v. Aiken, 7 N. H., 118, 140; Davis v. Police Jury, 1 La. An., 288; Ray 0. Murdock, 36 Miss., 692. “An officer defacto is one who exercises the duties of an office under color of appointment or election to that office.” Storrs, J., in Plymouth v. Painter, 17 Conn., 585, 588. To the same effect is Brown v. Lunt, 37 Me.. 423, 438; Strang ex parte, 21 Ohio, N. S., 610. 2 Blackwell on Tax Titles, 92-8; Wilcox v. Smith, 5 Wend., 281. 186 LAW OF TAXATION. [cH. VIII. to his occupation of the office, which the interest of the state does not permit to depend upon his own motives or the degree of plaus- ibility which attaches to his claim.) Usurpers. It is possible also that one may attempt to per- ‘In several recent cases, where persons have been performing official func- tions under assumed legislative authority which proved to be unconstitu- tional, the position has been taken, that one who acts as an officer under legislation of this nature, could not be an officer de facto, because the legisla- tion was no law and consequently could give no color of right. It has also been insisted, that an officer de facto always is one who comes in by color of ap. pointment or election by the authority having competent power to appoint or elect; so that, if any office is elective, it matters not that the governor claims and exercises the right to appoint, and that the appointee is enabled by public acquiescence to act: the appointment being without authority of law, the ap- pointee isa mere usurper. The subject is very carefully considered in State ». Carroll, 88 Conn., 449, 471; S. C., 9 Am. Rep., 409, where the authorities are reviewed at length. The conclusions are summarized by Butler, Ch. J., as fol- lows: “An officer de facto is one whose acts, though not those of a lawful officer, the law upon principles of policy and justice will hold valid, so far as they involve the interests of the public and of third persons, where the duties of the office were exercised: 1. Without a known appointment or elec- tion, but under such circumstances of reputation or acquiescence, as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be. 2. Under color of a known and valid appointment or election, but where the officer has failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like. 3. Under color of a known election or appointment, void because the officer was not elegible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise; such ineligibility, want of power or defect being unknown to the public. 4. Under color of an election or appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such.” In Commonwealth v. McCombs, 56 Penn. St., 436, substantially the same conclusion was reached. So it was also in Ex parte Strang, 21 Ohio, N. S., 610, where the legislature, in disregard of a requirement of the consti- tution, had made an appointment. The following cases, the most of which are referred to in State v. Carroll, support the same views; O’Brian ». Kni- van, Cro. Jac., 552; Harris v. Jays, Cro. Eliz.,699; Parker ». Kett, 1 Ld. Raym., 658; Fowler v. Beebe, 9 Mass., 231; Taylor v. Skrine, 3 Brev., 516; Wilcox v. Smith, 5 Wend., 231; Parker o. Baker, 8 Paige, 428; People o. Kane, 28 Wend., 414; People v. White, 24 id. 520; Burke ». Elliott, 4 Ired., 355; Gilliam ». Reddick, 4 id., 868; Brown ». Lunt, 37 Me., 423, 428; State ». Bloom, 17 Wis., 521; People v. Bangs, 24 JIL, 164; Clark v. Commonwealth, 29 Penn. St., 129; Mallett 7. Uncle Sam Co., 1 Nev., 188; Kimball v. Alcorn, 45 Miss., 151; Cocke . Halsey, 16 Pet., 71; Gibb v. Washingtor, 1 McAll., 480; Vaccari ». Max- well, 3 Blatch., 368. CH. VIII] OFFICIAL ACTION IN MATTERS OF TAXATION. 187 form the duties of an office, who-is neither chosen to do so, pur- suant to law, nor is supported by the public acquiescence. Such & person cannot acquire the reputation of being the officer he assumes to be; he is a mere usurper, and his acts are wholly void for all purposes. No one is under obligation to recognize his claim to the office, and whoever does so must take upon himself the consequences. It is of high importance that the encourage- ment of such claims should not be allowed to bring disorder and insecurity into public affairs.t Questioning title of officer de facto. The case of an officer de facto is different. To deny validity to his acts would lead to insecurity in both public and private affairs. It would compel those having occasion to transact business with a public officer. before they could put faith in his official acts, to go into a careful examination of all the evidences of his title, and of the provisions of law bearing upon them, in order to determine whether the as- sumption of official character is warranted by law, and is supported by a compliance with the necessary formalities. ‘It would con- stitute every citizen a judge of official titles) He must look to the constitution to see that the officer was eligible 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 ascertain- ing the facts; and then determine at his peril the mixed question of law and fact involved in the ascertainment of official charac- ter.”* The mere statement of the case is sufficient to show that such a requirement would in the highest degree be unjust to the private citizen, and detrimental to public interests. But to treat the official acts of a de facto incumbent as void would be equally 1Sce Plymouth ». Painter, 17 Conn., 585, 593; Peck o. Holcombe, 8 Port. 829; Keeler ». Newbern, 1 Phil, N. C., 505; Munson v. Minor, 53 Tl, 594. In Birch v. Fisher, 13 8. & R., 208, an assessment made by persons not shown to have been either elected or sworn, held to be by “ mere intruders who came in without color of authority.” An officer who holds over in good faith, though without warrant of law, is not a usurper. Kreidler ». State, 24 Ohio, N.S., 22. Compare State v. McFarland, 25 La. An., 547. To support oue’s acts as those of an officer de facto, they must have been done under color of an office whose duties have been discharged by him. Bailey v. Fisher, 38 Iowa, 229. ? Blackwell on Tax Titles, 94. 188 LAW OF TAXATION. [cH. VIII. unjust to him. When the controversy should arise collaterally, as commonly it must, the officer himself would not be a party to the record, and would have no opportunity and no privilege of meeting the issue raised, although the decision might as eflectu- ally determine his right to act, as if he had been proceeded against directly by the appropriate process of guo warranto. “ This would be judging a man unheard, contrary to the principles of natural justice and the policy of the law.” Until he is removed by pro- ceedings directly instituted for the purpose, and in which he is permitted to be heard, “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 pre- cedent authority. When the government acquiesce in the acts of such an officer, third persons ought not to be permitted to ques- tion them.”! When, however, the officer himself attempts to build up a right in his own favor, it is not unreasonable to require him to defend his right, as he would be compelled to do if he should assert title to any article of property as against the true owner. His-suit for the legal fees may therefore be successfully resisted, as may any attempt by him to enforce official process by the aid of the law. These are cases in which he is a party, and is properly called upon to demonstrate his title. Besides, if citizens were not permitted to resist his official claims in such proceedings, their acquiescence in them, until the state itself should be able to bring to a conclusion the formal proceedings to try the title, would be only an enforced acquiescence, and could not justly support a title to an office by reputation. The most that public policy could require in such cases would be that his de facto incumbency should be evidence of a right prima facie in his favor, but leaving the actual right subject to be disproved.? And if he is sued for 1 Blackwell on Tax Titles, 94; Bucknam ». Ruggles, 15 Mass., 180. See People ». Lothrop, 24 Mich., 235. Proceedings of 2 common council in levy ing a tax cannot be contested on the ground that by a change in the charter a portion of the seats were vacated, if the members continued de fucto to act. Scoville v. Cleveland, 1 Ohio, N.8., 126. 2? Kent o. Atlantic Delaine Co., 8 R. I., 305, where it was held that one who sues as collector to recover a tax gives sufficient prima facte evidence of his authority if he shows he has acted as such officer in regard to that tax; but that this prima face case is open to rebuttal. Sce also Colton v. Beardsley 38 Barb., 29; Auditors of Wayne v. Benoit, 20 Mich., 176; Pejepscott Propri CH. VIII] OFFICIAL ACTION IN MATTERS OF TAXATION. 189 any act which he can only justify as an officer, he is put to the proot that he was duly elected or appointed, and that any condi- tions precedent have been complied with.! Validity of acts of officers de facto. On the other hand, the public, by whose acquiescence the de facto officer has been permitted to act, and individuals who have transacted official business with him, have a right to rely upon the validity of that which has been done by him, to the same extent precisely as if the same acts had been performed in the same way by an officer de jure. When such acts come collaterally in question, neither the public, that has thus acquiesced, nor individual citizens, are per- mitted to question them. They are as valid, to all intents and purposes, as if the title to the office had been unquestionable. This is the general rule, as it has been settled on grounds of pub- lic policy from the time of the year books.” etors v. Ransom, 14 Mass., 145. It was decided in Universalist Society 9. Leach, 35 Vt., 108, that if an ineligible person is chosen sole prudential com mittee of a school district, his assessment of a tax voted by the district is void. : ‘Lightly ». Clouston, 1 Taunt., 118; Riddle ». Bedford,? 8S. & R., 386, 892; Fetterman v. Hopkins, 5 Watts, 589; Pike o. Hanson, 9 N. H., 491; Col- burn 2. Ellis, 5 Mass., 427; Fowler v. Beebe, 9 id., 281, 234; Sprague v. Bai- ley, 19 Pick., 486; Patterson v. Miller, 2 Met., Ky., 493; People v. Hopson, 1 Denio, 574, 579; Greene v. Burke, 23 Wend., 488, 492; Schlencker ». Risley, 3 Scam., 483; Blake v. Sturtevant, 12 N. H., 567; Cummings ». Clark, 15 Vt., 653; Olney v. Pearce, 1 R. I., 292; Samis v. King, 40 Conn., 298, 310; Vena- ble v. Curd, 2 Head, 582. In First Parish in Sherbourne ». Fiske, it is said that if parish assessors fail to take the oath of office, a tax assessed by them would be illegal and might be recovered back. 8 Cush., 264. But a tax which has been paid cannot be recovered back on the ground that the collector de facto had never been legally elected and sworn. Williams v. School District 21 Pick., 75. It is not intended to assert here that in every case in which the state might oust an officer by guo warranto an individual could also take ad- vantage of a defect in his title. The inquiry on behalf of the state may and does go beyond that which individuals may institute. A prima facie right is sufficient as against individuals, but only an indefeasible right as against the state. As an illustration of what is meant, the case of one holding a legal certificate of election may be taken: if a lawful election was held, the certificate may conclude private parties, but the government would be at lib- erty to go beyond it and show that the election was accomplished by illegal votes, or that for any other reason the prima facte case was defective. See the discussion in Auditors of Wayne ». Benoit, 20 Mich., 176. 2«'The law favors the acts of one in a reputed authority, and the inferior 190 LAW OF TAXATION. (cH. VIII Officers de facto in tax cases. It remains to be seen wheth- er these general principles are applicable in tax cases. It has sometimes been urged that in tax proceedings there was no proper room forthe application of the doctrine, which is applied in other cases in support of action by officers de facto ; that the proceedings are summary and for the most part ee parte; that they may de- prive the owner of his freehold by means of process which usual- ly and perbaps necessarily is somewhat arbitrary, and that he is therefore entitled of right to have all the security, which the law has intended he should have; in the character and standing of of an officer duly and properly chosen for the particular duty ; in shall never inquire if his authority is lawful.” Vin. Abr., tit. “ Officer,” G., 3. See Bac. Abr., ‘Offices and Officers,” B.; People v. Collins, 7 Johns., 549, 551; McInstry v. Tanner, 9 id., 185; People v. Dean, 3 Wend., 488; Wil- cox v. Smith, 5 id., 231, 234; Parker v Baker, 8 Paige, 429; People ». Kane, 23 Wend., 414; People ». White, 24 id. 520; Fowler v. Beebe, 9 Mass., 231; Commonwealth v. Fowler, 10 id., 290; Nason v. Dillingham, 15 id., 170; Bucknam v. Ruggles, id., 180; Gilmore v. Holt, 4 Pick., 257; Williams 9. Schoo! District, 21 id., 75; Blackstone v. Taft, 4 Gray, 250; Burke ». Elliott, 4 Ired., 855; Gilliam ». Reddick, id., 368;.Farmers & Merchants’ Bank v. Ches- ter, 6 Humph., 458; Beard v. Cameron, 3 Murph., 181; Brush v. Cook, Brayt., 89; Taylor o. Skrine, 3 Brev., 516; Plymouth ». Painter, 17 Conn., 585; Doug- lass v». Wickwire, 19 id., 489; State v. Carroll, 38 id., 449; Samis v. King, 40 id., 298; McGregor o. Balch, 14 Vt., 428; Downer v. Woodbury, 19 id., 829; Lyon ov. State Bank, 1 Stew., 442; Barret v. Reed, 2 Ohio, 409; Johnson v. Steadman, 3 id., 94, 96; Eldred ». Sexton, 5 id., 216; Ex parte Strang, 21 Ohio, N.58., 610; Justices of Jefferson v. Clark, 1 T. B. Monr., 82, 86; Rice ». Com- monwealth, 3 Bush, 14; Prickett v. People, 1 Gilm., 525, 529; Keyser v. Mc- Kissam, 2 Rawle, 189; Riddle v. Bedford County, 78. & R., 386, 392; Baird v. Bank of Washington, 11 id., 411; Neal v. Overseers, 5 Watts, 588; McKim ». Somers, 1 Penrose & Watts, 297; Commonwealth ». McCombs, 56 Penn. St., 486; Gregg v. Jamisan, 55 id., 468; Cooper v. Moore, 4 Miss., 386; Kimball ov. Alcorn, 45 id., 145; Cabot v. Given, 45 Me., 144; Jones ». Gibson, 1 N. H., 266; Moore v. Graves, 3 id., 408; Morse »v. Calley, 5 id., 222; State v. Tolan, 83 N. J., 195; Leach a. Cassidy, 23 Ind., 449; McCormick ». Fitch, 14 Minn., 252; Auditors of Wayne County v. Benoit, 20 Mich., 176; Ex parte Bollman, 4 Cranch, 75; Sawyer o. Steele, 8 Wash. C.C., 464; Willink v. Miles, Pet. C. C., 188; Ronkendorf v. Taylor, 4 Pet., 349; Lawrence ». Sherman, 2 McLean, 488; United States ». Bachelder, 2 Gall. 15. There is a discussion in McNutt v. Lancaster, 9 8. & M., 570, of the ques- tion whether, where the statute declared that the acts of one who should pre- sume to execute the duties of an office, before taking the official oath, should be “absolutely void,’ could have any validity as those of an officer de Sacto No decision was reached. CH. VII] OFFICIAL ACTION IN MATTERS OF TAXATION, 191 the official oath of such officer, when one is required by law; in the official bond if one is made necessary; and indeed such secur- ity as would be afforded by a strict compliance with every pro- vision which has been made by the revenue laws for the protec- tion of taxpayers The reasons are plausible, but they are not very conclusive. Indeed if official action of officers de facto in judicial positions can be sustained, as it often has been,? though not only property but also liberty may depend upon it, it is diffi- cult to suggest any distinguishing reason to remove tax cases from the application of the same principle. The clear affd very strong preponderance of authority is, that the general policy of the law requires the acts of officers de facio to be sustained in tax cases, under the same circumstances and on the same imperative reasons that sustain them in others.® Estoppel against intruders who have acted. The rule which supports official action, may perhaps in some cases be car- ried with propriety even farther than is above stated. If one has assumed to act asan officer under revenue laws, and has made col- lections, as such, he cannot be permitted, when the government calls upon him for an accounting, to turn about and say that he was 1 Cardigan v. Page,6 N. H., 182; Payson v. Hall, 30 Me., 319; Coite vo. Wells, 2 Vt., 318; Isaacs ». Wiley, 12 id., 674; People v. Hastings, 29 Cal., 449. Some of the cases which may seem to support this view are properly to be referred to some other principle. They turn often upon the question, whether the statute is mandatory in requiring that something should be done, which has been omitted, or whether the person who has assumed to act as officer held de facto the particular office to which the duty pertained; or some other question foreign to the precise point now under discussion. 2 Lord Dacre’s Case, 1 Leon., 288; Margate Pier v. Hannam, 3 B. & Ald., 266; Wilcox vo. Smith,5 Wend., 231; People v. Kane, 23 id., 414; People ». White, 24 id., 520; Brown v. Lunt, 37 Me., 428; Taylor ». Skrines, 3 Brev., 516; Mallett » Uncle Sam Co., 1 Nev., 188; Clark ». Commonwealth, 29 Penn. St., 129; Laver o. McGlachlin, 28 Wis., 364; In re Griffin, 2 Am. Law Times, 93. 3 Tucker v. Aiken, 7 N. H.,118; Smith vo. Messer, 17 id., 420; Hall v. Cush- ing, 2 Greenl., 218; Adams ». Jackson, 2 Aiken, 145; Spear o. Ditty, 8 Vt., 419; Downer ». Woodbury, 19 id., 329; Sheldon ». Coates, 10 Ohio, 278; Washington ». Miller, 14 Iowa, 584; Allen ». Armstrong, 16 id., 515; Scott o. Watkins, 22 Ark., 556; Twombly v. Kimbrough, 24 id., 459, 474; Ronkendorf ». Taylor, 4 Pet.,349; Ray ». Murdock, 86 Miss., 692; Jones v. Scanland, ¢ Humph., 195. 192 LAW OF TAXATION. [cH. VIII. never elected or appointed, but has acted as a mere usurper without right, and that the proper remedy of the government was to have resisted his intrusion, or caused his ouster. On every principle of right and justice he is precluded from denying his official char- acter under such circumstances! Such a person has aright at any time to refuse to proceed farther in official action, and he cannot be held responsible as for a neglect of duty in such refusal ; but it is doubtful if one under any circumstances, even though he be a mere usurper, who has collected revenue for the government un- der claim of right, can be permitted to protect himself against an accounting, by showing that he was an intruder without any just pretense to the place. To the extent that he has acted, the gov- ernment may properly adopt his agency, and require him to give to taxpayers, who have recognized his authority, the benefit of their payments.* ! Johnston v. Wilson, 2 N. H., 202, 206; Horn ». Whittaker, 6 id., 88; Sand- wich ». Fish, 2 Gray, 298, 301; Barrington »v. Austin, 8 id., 444; Wen- dell vo Fleming, id., 618; Cheshire v» Howland, 138 id., 321; Williams- town v. Willis, 15 id., 427; Borden ». Houston, 2 Texas, 594; Billings- ley v. State, 14 Md., 369. In Jones ». Scanland, 6 Humph., 195, it appeared that adefaulter had been chosen sheriff. By law such a choice was absolutely void. He nevertheless gave bond and acted in the collection of taxes. On motion, judgment was entered on his official bond for failure to pay over. Reese, J.: “The election of sheriff was void, and he did not there- by become sheriff de jure; but thus intruding himself into office, and assum- ing its duties, he became sheriff de facto, and those who voluntarily bound themselves for the faithful performance of his duties cannot absolve them- selves from their obligation, by insisting that he was no sheriff. They will be held to their undertaking, till the proper public authority has produced his amotion from the office which he in point of fact fills.” ? See United States v. Maurice, 2 Brock., 96; Bell v. Railroad Co., 4 Wall., 598; State v. Cunningham, 8 Blackf., 389; Church »v. Sterling, 16 Conn., 387; Commonwealth ». Philadelphia, 27 Penn. St., 497; Wentworth ». Gove, 45 N. H., 160; Trescott v. Moan, 50 Me., 347. A Sheriff who has collected taxes without having the proper list is nevertheless liable to account. The Gov- ernor ». Montgomery, 2Swan, 613. Cases of sale of the office of collectcr and the effect thereof are found in Meredith v. Ladd,2N. ., 517; Carleton ». Whitcher, 5 id., 196; Tucker v. Aiken, 7 id., 118; Alvord ». Collin, 20 Pick., 418; Howard ». Prector,7 Gray, 128; Spencer v. Jones, 6 id., 502. Where the fact of an official oath is in question it may be shown by parol that the oath was taken, though the law requires a record. Briggs ». Murdock, 18 Pick,, 805; Pease v. Smith, 24 id., 122; Hall 0. Cushing, 2 Greenl., 218; and see CH. VIII] OFFICIAL ACTION IN MATTERS OF TAXATION. 193 Joint official action. In some cases, under the tax laws, official action is required to be taken by a board composed of several persons. It may then appear that there has been an im possibility to secure concurrence, or that, through neglect or inad- vertence, less than the whole board has acted; and it becomes necessary to determine whether, in any such case, tle action can be supported. The rules of law on this subject are well settled. The law contemplates, that all the members of a board, who are to exercise 2 joint public authority, shall meet to consider the subject of their authority, and that the whole board shall have the benefit of the judgment and advice of each of the members. In revenue cases, especially, and in others in which the official action may eventuate in divesting the citizen of his estate, it is to be supposed the law intended that this joint deliberation and ac- tion should be fur the benefit of the citizen also. If, therefore. no such meeting is held, and no opportunity had for joint consul tation and action, the joint authority is not well executed, even though all acting separately may have signed such a document as would have been sufficient, were it the result of a proper meeting. Such action is not the action of the board, but of individuals. It is always presumable that it might have been different had there been a meeting and comparison of views, such as the law contemplated. At any rate, there can be no conclusive or satis- factory evidence of what would have been the joint judgment, when it has never been exerciced ; and the members of the board have no discretion to substitute individual action when the law has required the action of the organized body.! No custom of the locality, or long continued practice can legalize the putting aside of this rule of law. The members of the board are officers of law, and must obey the rules that presumably for beneficial Scott o. Watkins, 22 Ark., 566. And as to the right of a collector to contest the validity of a tax he has collected, see People v. Brown, 55 N. Y., 180. 1See Downing v. Rugar, 21 Wend., 178, 182, per Cowen, J.; Lee v. Parry, 4 Denio, 125; Powell v. Tuttle, 3 N. Y., 396; People v. Supervisors of Chenan- go, 11 id., 568; Fuller v. Gould, 20 Vt., 648. If only two of a board of three qualify and act, there is no board, and the action is void. Schenck v. Peay, 1 Dill., 267; 8.C.,1 Woolw., 175. So, if only two of the three are chosen, the two cannot act. Williamsburg v. Lord, 51 Me. 599. And see Downing ov. Rugar, 21 Wend., 178, 182. 13 194 LAW OF TAXATION. [cH. VIII purposes, have been prescribed for them.1 But the law does not require impossibility, and it may be found impossible for the members to agree in joint action. In such a case, it is to. be pre- sumed theintent was, that the law should not fail of execution, but that the action of the majority should be sufficient. And, where a majority have acted, the legal intendment in favor of the correctness of official action, requires us to conclude that such action is the result of due meeting and consultation, or at least of a meeting duly called, at which all had the opportunity to attend, and a majority did attend. It is therefore prima facie valid, though the legal presumption in its favor may be overcome by evidence that no such meeting was called or had.? 1In Middleton ». Berlin, 18 Conn., 189, a tax list was signed by one only of a board of five assessors. An attempt was made to support it by showing a usage of the town to divide the town into districts, in each of which one of the assessors acted separately; but the court said “assessors are the officers of the law, and must obey the law, and no direction of the town, or long con- tinued usage can justify a departure from the law.” See People ». Supervis- ors of Chenango, 11 N. Y., 563. In Kinney. Doe, 8 Blackf., 350, the list was made by the official lister, but it was not shown that two householders acted with him as the law required, and it was held void. ?JTn support of the general principle, that the action of a majority is suffi- cient, see Wadham College, Cowp., 877; Grindley v. Barker, 1 B. & P., 236; The King v. Beeston, 3 T. R., 592; Withnell v. Gartham, 6 id., 888; Cooley v. O’Conner, 12 Wall., 391, 898; Commonwealth v. Canal Commissioners, 9 Watts, 466, 471; Jewett v. Alton, 7 N. H., 253; Babcock ». Lamb, 1 Cow., 238; Rogers, ex parte,7 id., 526; McCoy v. Curtice, 9 Wend., 17, 19; Downing ». Rugar, 21 id., 178; Crocker v. Crane, id., 211, 218; Doughty », Hope, 3 Denio, 594; Bank of Chenango »v. Brown, 26 N. Y., 467; Caldwell v. Harrison, 11 Ala., 755; Soens v. Racine, 10 Wis. 271; Sprague v. Bailey, 19 Pick., 486; Williams v. School District, 21 id., 75; Fire District 0. County Commission- ers, 108 Mass., 142; People v0. Coghill, 47 Cal., 861; Johnson ». Goodridge, 15 Me., 29; Bangor v. Lancey, 21 id., 472; Lowe v. Weld, 52 id., 588. This is on the ground that all are presumed to have met and consulted, a presumption that may be overcome by proof. Doughty vo. Hope, 8 Denio, 594, 598, per Bronson, J.; Ex parte Baltimore Turnpike Co.,5 Binn., 481; Blackwell on Tax Titles, 111. Under the decisions which are above cited, it is difficult to understand how a case like Howard »v. Proctor, 7 Gray, 128, can be supported. There, one who was selectman and also assessor, was chosen collector, and it was decided that the choice was valid, though his bond was to be approved by the selectmen, and the assessors, in certain cases, had au- thority to remove him. The decision was put on the ground that these boards might act by majorities; but the very nature of the action was such as to preclude one member of the board from consultation and action with the CH. VIIL] OFFICIAL ACTION IN MATTERS OF TAXATION. 195 Official returns and certificates. It is generally held that the returns and certificates required of an officer in the perform- ance of official duty are to be taken, in the proceeding in which they are made, as of unquestionable verity. They are not to be attacked, and proof entered into in a collateral proceeding, to which the officer is not a party, to show that they are false. rest, or if he could act, made him interested adversely to the public. Seealso Fox v. Fox, 24 Ohio (N. 8.), 885. Kinyon ». Duchene, 21 Mich., 498, is contra. Where a drainage law provided that the commissioners shall jointly view and assess, etc., this requires the presence of all, both in viewing and assess- ing. People v. Coghill, 47 Cal., 361. Compare Palmer v. Doney, 2 Johns. Cas., 346. 1Com. Dig. Return, G.; Flud v. Pennington, Cro. Eliz., 872; Harrington 2. Taylor, 17 East, 878; Rex v. Elkins, 4 Burr., 2129; Andrews v. Linton, 1 Salk., 265; Wheeler ». Lampman, 14 Johns., 481, 482; Putnam o. Man, 3 Wend., 202, Case o. Redfield, 7 id., 8398; Boomer v. Laine, 10 id., 525; Baker v. McDuffie, 23 id., 289; Sperling v. Levy, 1 Daly, 95,98; McArthur ». Pease, 46 Barb., 423; Livermore »v. Bagley, 3 Mass., 487,512; Slayton v. Chester, 4 id., 478; Gardner v. Hosmer, 6 id., 824, 327; Bott ». Burnell, 9 id., 96; Estabrook ». Hapgood, 10 id., 318, 314; Bott ». Burnell, 11 id., 163; Saxton v. Nimms, 14 id., 318, 820; Bean ». Parker, 17 id., 591,601; Lawrence v. Pond, id., 433; Thayer v. Stearns, 1 Pick., 109,112; Whittaker o. Sumner, 7 id., 551,555; Boynton ». Willard, 10 id., 165, 169; Bruce v. Holden, 21 id., 187,189: Pullen »- Haynes, 11 Gray, 879; Campbell o. Webster, 15 Gray, 28; McGough v. Wellington, 6 Allen, 505; Hathaway v. Phelps, 2 Aiken, 84; Stevens v. Brown, 3 Vt. 420; Eastman ». Curtis, 4 id., 616; Burret ». Copeland, 18 id., 67, 69; White River Bank v. Downer, 29 id., 332; Jewis v. Blair, 1 N. H., 68; Whi- ting v. Bradley, 2 id., 79,81; Sias v. Badger, 6 id., 393; Brown ». Davis, 9 id., %6;-Angier v. Ash, 26 id. 99; Clough v. Monroe, 34 id., 381; Ladd ». Wig- gins, 35 id., 421; Bolles ». Bowen, 45 id., 124; Morse v. Smith, 47 id., 474; Phillips o. Elwell, 14 Ohio St., 240; Eastman . Bennett, 6 Wis., 232; Carr v. Commercial Bank, 16 id., 50; Castner ». Symonds, 1 Minn., 427; Tullis v. Brawley, 3 id., 277; Folsom ». Carli, 5 id., 383; Delenger v. Higgins, 26 Mo., 180; McDonald ». Leewright, 31 id., 29; Reeves . Reeves, 33 id., 28; Stewart v. Stringer, 44 id., 400; Washington, etc., Co. ». Kinnear, 1 Wash. Ter., 116; Tillman ». Davis, 28 Ga., 494; Brown v. Way, 28 id., 531; Allender ». Riston, 2 Gill. & J., 86; Tribble v. Frame, 3 Monr., 51; Caldwells x. Harlan, 3 id., 349, 351; McConnel o. Bowdry’s Heirs, 4 id., 392; Smith ». Hornback, 3 A K. Marsh, 878, 392, 393; Small o. Hagden, 1 Litt. 16,17; Trigg v. Lewis’ Ex’rs, 3 id., 129, 182; Hunter ». Kirk, 4 Hawks, 277; Stinson v. Snow, 1 Fairf., 263; Wilson vo. Hurst’s Ex’rs, 1 Pet. (C. C.), 441; Hawks v. Baldwin, Brayt., 85; Welsh o. Bell, 32 Penn. St., 12; Paxon’s Appeal, 49 id., 195; Hill v. Grant, 49 id., 200; Rice v. Groff, 58 id. 116; Ayres v. Duprey, 27 Texas, 593; ‘Angelle. Bowler, 3 R. I., '77; Castner o. Styer, 23 N. J., 236; State o. Clerk of Bergen, 25 id. 209; Martino. Barney, 20 Ala., 369; Crow 2. Berane 21 id, 560; Hinckley v. Buchanan, 5 Cal.. 53. eee 196 LAW OF TAXATION. (CH. VIII If the party is injured by a false return, he has his remedy by action against the officer. In general it is believed that these rules have been held to be applicable in tax cases.? * Wheeler ». Lampman, 14 Johns., 481; Putnam 7. Man, 3 Wend., 202; Case v. Redfield, 7 id., 398; Baker 0. McDuffie, 23 id., 289; McArthur o. Pease, 46 Barb., 423; Livermore v. Bagley, 8 Mass., 487, 512; Slayton v. Chester, 4 id., 478; Gardner v. Hosmer, 6 id., 824, 327; Whitaker ». Sumner, 7 Pick., 551; Boynton v. Willard, 10 id., 165,169; Bruce v. Holden, 21 id., 187, 189; Pullen v. Haynes, 11 Gray, 879; Campbell ». Webster, 15 id., 28; McGough v. Wel. lington, 6 Allen, 505; Clough v. Monroe, 34 N. H., 381; Lewis v. Blair, 1 id., 68; Sias v. Badger, 6 id., 398; Angier ». Ash, 26 id. 99; Bolles ». Bowen, 45 id., 124; Tomlinson v. Long, 8 Jones L. 469; Albright ». Tapscott, 8 id., 473; McBee »v. State, 1 Meigs, 122; Castner v. Symonds, 1 Minn., 427; Folsom ». Carli, 5 id., 333; Goodal v. Stuart, 2 Hen. & Munf., 105, 112; Trigg ». Lewis’ Ex’rs, 3 Litt., 129,182; Hunter vo. Kirk, 4 Hawks, 277; Stinson o. Snow, 1 Fairf., 263; Philips v. Ewell, 14 Ohio St., 240; McDonald ». Lee- wright 31 Mo., 29; Stewart v. Stringer, 41 id. 400; State v. Clerk of Bergen, 25 N. J., 209; Mentz Hamman, 5 Whart., 150; Paxon’s Appeal, 49 Penn. St. 195; Eastman v. Bennett, 6 Wis., 232. * There are cases which hold official returns of ministerial officers to be only prima facie evidence of facts recited: Cockrell v. Smith, 1 La. An., 1; Waddell v. Judson, 12 id., 13; Leverich v. Adams, 15 id., 310; Wallis o. Bourg, 16 id., 176; Newton ». Prather, 1 Duv., 100; Fleece ». Goodrum, 1 id., 306; Kings- bury v. Buchanan, 11 Iowa, 387; Pomeroy v. Parmelee, 9 id., 140, 150; Owens 2. Ranstead, 22 Tll., 161, 167; Rivard v. Gardner, 39 id., 125, 129; Gregg v. Strange, 3 Ind., 366; Doe v. Attica, 7 id., 641; Butler v. State, 20 id., 169; Tucker v. Bond, 23 Ark., 268; Ingraham ». McGraw, 3 Kans., 521. In Lothrop v. Ide, 18 Gray, 98, a collector sued for arresting a person on a tax warrant, relied upon his return as showing that the party had no goods on which to levy. The plaintiff was allowed to give evidence that he offered to turn out goods in satisfaction of the tax. On exceptions the following opin. ion was given by Dewey, J: “The questions in the present case concern the admission and effect of the evidence offered by the plaintiff, that prior to the actual arrest of the plaintiff for the nonpayment of his tax, he tendered to the defendant sufficient person- al property, that might have been levied upon to satisfy the same. The ob- jection to its admission is that it contravenes the return of a sworn officer. The officer does not in the present instance directly aver that there were not sufficient goods of the plaintiff that might have been found to levy upon, but merely says, ‘not finding sufficient goods upon which it may he levied,’ he arrested the body. There is no allegation that he made search for the goods, or that the same might not have been found with proper diligence. Without deciding the more general question of directly contradicting a return of a col- lector of taxes, and whether, in a suit brought against such collector for an illegal arrest, his return is to be considered prima facie evidence merely, and CH. IXx.] THE CONSTRUCTION OF TAX LAWS. 197 CHAPTER IX. THE CONSTRUCTION OF TAX LAWS. One of the most serious of the difficulties which are encoun- tered in the administration of the revenue laws, is that of ascer- taining the intent of the legislature in the enactment of particu- lar provisions, and in giving that intent the proper application and effect. Rules of construction in general. Artificial rules of con- struction have probably found more favor with the courts than they have ever deserved. The application of them has often- times been pushed to an extreme which has defeated the plain and manifest purpose in enacting tie laws. Penal laws have presumed to be correct until the contrary be shown, it might perhaps be suf- ficient in the present case to say that no such direct averment is made here. “But the court are of the opinion that, in case of an action instituted against a collector of taxes for an illegal arrest, the certificate of the collector is not conclusive evidence in his own favor. In cases of certificates of field-drivers, they have been treated as prima facde evidence of their doings rather than conclusive. In the somewhat loose language, formerly used, they were said to change the burden of proof, by which language we understand, when used in reference tothis class of cases, not a change of the technical burden of proof upon the issue, but that they are to avail until controlled by a greater weight of evidence overpowering them. In Pickard v. Howe, 12 Met., 207, it was considered as prima facte evidence, and also in the case of Bruce v. Hol- den, 21 Pick., 187. In the case of Barnard ». Grayes, 18 Met., 19, it was said that the certificate of a collector of taxes, of his doings on a levy of his war- rant, is to be deemed prima facie evidence as to all matters upon which they are by law to make returns. We have not felt that the decision in Livermore v. Bagley, 3 Mass., 518 should require us to come to a different result in the present case from that stated in Barnard ». Graves. “The evidence being admissible, we think it is such as would have war- ranted the jury in returning a verdict for the plaintiff. The authority to ar- rest the body, which is given by Rev. Stat., ch. 8, § 11, arises only where the collector cannot find sufficient goods upon which to levy, This provision continues in force at all times previous to an act of arrest.” In Bowen v. Donovan, 32 Ind., 379, it was held competent to defeat a tax sale of lands by showing that the tax-payer had persunal property from which the tax might have been collected. And see Scales v. Alvis, 12 Ala., 617. 198 LAW OF TAXATION. [cu 1x. been construed out of all meaning, and in remedial laws remedies have sometimes been found which the legislature never gave. Something of this fate has befallen the revenue laws. In some of the earlier cases they seem to have been regarded as things which, like the obligations entered into with a usurer, were to be confined to the very letter of the bond, if enforced at all; and every intendment was made against them and the proceedings under them. The legislature has endeavored to remedy the evil by going to the opposite extreme. It has passed statutes from time to time in the supposed exercise of a control over rules of evidence which, if literally construed and enforced, are in the na- ture of judicial decrees, determining conclusively against the per- son whose property has been seized for taxes, all such questions of law or right as he might raise in support of his inheritance. It is difficult to determine which is more unreasonable, the old strictness of some of the courts against tax proceedings, or the new strictness of some legislation against those who have the misfortune to be confronted with a tax deed. The intent to govern. The underlying principle of all con- struction is that which seeks the intent of the legislature in the words employed to express it. Beyond the words we are not to look, where the meaning is plain and intelligible! If the law is plain and unambiguous, the legislature must be intended to mean what has been plainly expressed, and nothing remains but to give the intent effect? When doubts arise on the meaning 'The construction of a statute is to be gathered only from the words used where they are plain and intelligible. Therefore, where a statute providing for the summary arrest of a defaulting collector, authorized him to be released on giving bond after he had been committed to prison after his arrest, it was held that a bond taken without committing him to prison was unauthorized. Daggett v. Everett, 19 Me., 373. * United States v. Fisher, 2 Cranch, 858, 899; Sturgis v. Crowninshield, 4 Wheat., 122, 202; People v. Purdy, 2 Hill, 31, 35; 8. C., 4 id., 384; Newell ». People, 7 N. Y., 9, 83; McClusky v. Cromwell, 11 id., 598; People ». N. Y. Central R. R. Co., 24 id. 435, 492; Alexander o. Worthington, 5 Md., 471; Cantwell v. Owens, 14 id., 215; Case v. Wildridge, 4 Ind., 51; Spencer ». State, 5 id., 41, 49; Ludlow’s Heirs 0. Johnson, 3 Ohio, 553; Ezekiel o. Dixon, Kel. ly, 146; In re Murphy, 23 N. J., 180; State o. Blasdel, 4 Nev., 241; Patterson o. Yuba, 18 Cal., 175; District Township v. Dubuque, 7 Iowa, 262; Bidwell a. Whittaker, 1 Mich., 479; Bartlett v. Morris, 9 Port., 266; McAdoo v. Benbow, 63 N. C., 461, 464. CH 1x.] THE CONSTRUCTION OF TAX LAWS. 199 of the words, the antecedent law, the evil to be remedied, the circumstances under which the law has been enacted, and to some extent the contemporaneous or even the subsequent practical con- struction may be resorted to, for any light they may possibly throw upon the meaning, And here rules of interpretation come, in which are discussed with more or less fullness in various ele- mentary treatises’ But rules of interpretation are only in the nature of suggestions, by means of which we may be enabled to reach an intent which has been doubtfully expressed. If the intent is plain without them, they are useless, and may introduce doubts where none existed ;. but if the words are capable of sev- eral constructions, they may serve to indicate, with reasonable certainty, the one which was in the mind of the legislature. Construction of revenue laws. In the construction of the revenue laws,” special consideration is of course to be had of the purpose for which they are enacted. That purpose is to supply the government with a revenue. But in the proceedings to ob- tain this it is also intended that no unnecessary injury shall be inflicted upon the individual taxed. While this is secondary to the main object — the impelling occasion of the law — it is none the less a sacred duty. Care is taken in constitutions to insert provisions to seeure the citizen against injustice in taxation, 1See especially Blackstone’s Commentaries; the Treatises of Sedgwick & Smith; Dwarris on Statutes, with Potter’s additions; Bishop on Statutory Crimes; Story on the Constitution; Cooley Const. Lim., Chapter IV. 2TIt may be noted here, that while under the federal government the term most usually applied to the laws by which taxes are laid and collected is revenue laws, in a number of the states that term is seldom made use of as ap- plying to the laws of the state for the corresponding purpose. There is no substantial difference, however, in the meaning of the two terms, tax laws and revenue laws. In Peyton ». Bliss, 1 Woolw., 170, 178, Mr. Justice Miller says: ‘ Any law which provides for the assessment and collection of a tax to defray the expenses of the government is arevenue law. Such legislation is com: monly referred to under the general term “revenue measures,” and those measures include all the laws by which the government provides means for meeting its expenditures. I can imagine no definition of a government revenue which would not include all the money raised by any form of taxa- tion.” But an act imposing a penalty which goes to the government is not for that reason merely a revenue law. Kevenue laws are those laws only whose principal object is the raising of revenue, and not those under which rev- enue may incidentally arise. The Nashville, 4 Biss., 188. 200 LAW OF TAXATION. [cH. x and all legislative action is entitled to the presumption that this has been intended. We are therefore at liberty to suppose that the two main objects had in view in framing the provisions of any tax law, were first, the providing a public revenue, and second, the securing of individuals against extortion and plunder under the cover of the proceedings to collect the revenue. The provis- ions for these purposes are the important provisions of the law. Other provisions ray be made for subordinate purposes; to en- courage order, regularity and promptitude in the proceedings, and to give to the government a security against losses and frauds beyond what might be had in the integrity of officers. The question regarding the revenue laws has generally been, whether or not they should be construed strictly. The general rules of interpretation require this in the case of statutes which may divest one of his freehold by proceedings not in the ordinary sense judicial, and to which he is only an enforced party. It is thought to be only reasonable to intend that the legislature, in making provision for such proceedings, would take unusual care to make use of terms which would plainly express its meaning, in order that ministerial officers might not be left in doubt in the exercise of unusual powers, and that the citizen might know ex- actly what were his duties and liabilities. A strict construction in such cases is reasonable, because presumptively the legislature has given in plain terms all the power it has intended should be exercised. It has been very generally supposed that the like strict construction was reasonable in the case of tax laws. Mr. Dwearris in his Treatise on Statutes has the following remarks : “Statutes made for the advancement of trade and commerce, and to regulate the conduct of merchants, ought to be perfectly clear and intelligible to persons of their description. By the use of ambiguous clauses in laws of that sort, the legislature would be laying a snare for the subject, and a construction which con- veys such an imputation ought never to be adopted. Judges, therefore, where clauses are obscure, will lean against forfeitures, leaving it to the legislature to correct the evil, if there be any. With this view, the ship registry acts, so far as they apply to defeat titles and to create forfeitures, are to be construed strictly, as penal, and not liberally, as remedial laws. In like manner in the revenue laws, where clauses inflicting pains and penalties are CH. 1x.] THE CONSTRUCTION OF TAX LAWS. 201 x ambiguously or obscurely worded, the interpretation is ever in favor of the subject; ‘for this plain reason,’ said Heath, J., in Hubbard v. Jolinstone, ‘that the legislature is ever at hand to explain its own meaning, and to express more clearly what has been obscurely expressed.’ The same author on another page says: “It isa well settled rule of law, that every charge upon the subject must be imposed by clear and unambiguous lan- guage. Acts of parliament which impose a duty upon the pub- lic will be critically construed with reference to the particular language in which they are expressed. When there is any am- biguity found, the construction must be in favor of the public; because it is a general rule, that when the public are to be charged with a burden, the intention of the legislature to impose that burden must be explicitly and distinctly shown.”1 This statement of the general rule expresses the view which it is be- heved has always prevailed in England.* It is also that which 1 Dwarris on Statutes, 742, '749. ? Quotations from a few cases may be here given. In Warrington v. Furbor, 8 East, 242, 245 (case of a stamp tax), Lord Bllenborough, Ch. J.,says: “ Where the subject is to be charged with a duty, the cases in which it is to attach ought to be fairly marked out, and we should give a liberal construction to words of exception confining the operation of the duty.” In Williams ». San- gar, 10 East, 66, 69 (case of turnpike tolls), Lord Hilenborough says: “In the construction of these tax acts we must look at the strict words, however we may sometimes lament the generality of the expression used in them; but we must construe those words according to their plain meaning with reference to the subject matter.” In Denn v. Diamond, 4 B. & C., 244 (case of an ad valorem duty on sales), Bayley, J., says: “It is a well settled rule of law that every charge upon the subject must be imposed by clear and unambiguous lan- guage.” Jt was therefore held that a conveyance in consideration of natural love and affection was not taxable as a “sale.” In Tompkins v. Ashby, 6 B. & C., 541, 548 (case of a stamp duty), Lord Tenterden, Ch. J., says: “ Acts of parliament imposing duties are so to be construed as not to make any instru- ments liable to them unless manifestly within the intention of the legisla- ture.” In Doe ». Snaith, 8 Bing., 147, 152 (case of a stamp duty), Tindal, Ch. J., says: ‘As all stamp acts, being a burden on the subject, must be clearly expressed, wherever they impose the burden, I should say that even if there were doubt, we should take the smaller sum.” In Wroughton ». Turtle, 11 Mees. & W., 561, 567, Park, B., says: “It is a well settled rule of law that every charge on the subject must be imposed by clear and unambiguous words.” In Marquis of Chandos v. Commissioners of Inland Revenue, 6 Exch., 464, 479, Pollock, C. B., says: “1t is a well established rule in the con- struction of revenue acts that a duty cannot be imposed on the subject except 202 LAW OF TAXATION. [oH. Ix. has been adopted in the several states’ Like views have been frequently expressed by the federal courts. Thus, Mr. Justice Story in giving reasons for holding that the reve nue act of 1841 did not intend to levy a certain permanent duty on indigo, says: ‘My reasons for this conclusion are these: In the first place, it is, as I conceive, a general rule in the interpretation of all statutes, levying taxes or duties, upon sub- jects or citizens, not to extend their provisions, by implication, be- yond the clear import of the language used, or to enlarge their operation so as to embrace matters not specifically pointed out, although standing upon aclose analogy. In every case, therefore of doubt, such statutes are construed most strongly against the government, and in favor of the subjects or citizens, because bur- dens are not to be imposed nor presumed to be imposed, beyond what the statutes expressly and clearly import. Revenue statutes are in uo just sense remedial laws, or laws founded upon any per- manent public policy, and therefore, are not to be liberally construed. Hence, in the present case, if it be a matter of real doubt, whether the intention of the act of 1841 was to levy a per- manent duty on indigo, that doubt will absolve the importer from paying the duty, beyond the period when it would otherwise be free.”* Duties it is said by Mr. Justice Nelson “are never imposed upon the citizen upon vague or doubtful interpretations.” 3 by clear words. The meaning of the legislature must be distinctly made out from the terms of the statute.” In Gurr v. Scudds, 11 Exch., 190, 192, Pollock, C. B., says: “If there is any doubt as to the meaning of the stamp act, it ought to be construed in favor of the subject, because a tax cannot be im- posed without clear and express words for that purpose.” 1“ Statutes which impose restrictions upon trade or common occupations, or which levy an excise or tax upon them, must be construed strictly.’ Par- ker, Ch. J., in Sewell v. Jones, 9 Pick., 412, 414. “A statute conferring au- thority to impose taxes must be constryed strictly.” Anderson, Ch. J., in Moseley v. Tift, 4 Fla., 402, 408. “A strict construction of the [tax] law is fully authorized by the nature and consequences of the proceeding.” Stuart, J., in Barnes v. Doe, 4 Ind., 182, 183, quoting Williams ». State, 6 Blackf., 36. “Tt is a well settled rule that every charge under a stamp act must be imposed by clear and unambiguous words.” ay, J., in Smith 0. Waters, 25 Ind., 397, 899. See Savannah v. Hartridge, 8 Ga., 23; Williamsburg o. Lord, 51 Me., 599; Boyd v. Hood, 57 Penn. St., 98. 2 United States o. Wigglesworth, 2 Story, 369, 373. 3 Powers v. Barney, 5 Blatch., 202, 208. CH. 1X.] THE CONSTRUCTION OF TAX LAWS. 203 ‘The revenue laws,” it is said in another case are not to be so construed as to extend their meaning beyond the clear import of the words used.”* In another case remarks are made by an able circuit judge, which apply with great force to nearly all the feder- al revenue laws. ‘In construing a severe statute, declaring a heavy forfeiture (and according to one construction claimed, for small offenses), it is Just to say, that those who are called upon to conduct their business affairs in view of all its provisions, ought to be fairly apprised of its requirements, and its penalties of what- ever kind. They are bound to know the law, but law makers owe to them the duty to make the law intelligible; and those whose business it is to construe or expound a law which is of doubtful or double meaning, should not incline to the harshest possible mean- ing, when it is obvious that those to whom it is to be applied may well have been led to trust in another, which is less severe, but equally satisfying its terms. This is not saying that laws of the kind in question are to be strictly construed in favor of the subject and against the state, but only, that they should be con- strued with reasonable fairness to the citizen.”* There are some cases, however, from which, if the expressions made use of in the opinions are taken literally, a different rule might be de- duced. Thus itis said in one case: ‘A revenue law is not to be strictly construed, but rather the contrary, so as to attain the ends for which it was enacted.”® In other cases it is said that, ‘“ the penalties annexed to violations of general revenue laws do not make them penal, in the sense which requires them to be con- strued strictly.” And in the decision of a recent case in the United States supreme court, a similar view seems to be taken. ‘“ Rev- enue statutes,” it is said, “are not to be regarded as penal, and therefore to be construed strictly. They are remedial in their char- acter and to be construed liberally, to carry out the purposes of their enactment.” > 1 United States ». Watts, 1 Bond, 580, 583, per Leavitt, J. : 2 Woodruff, J., in United States v. Distilled Spirits, 10 Blatch., 428, 433. 3 Deady, J., in United States v. Olney, 1 Abb., U. S., 275, 282. See Twenty- eight Cases, 2 Ben., 63. ; 4 United States v. Barrels of Spirits, 2 Abb., U. &., 805, 314, per Dillon, J. And see United States v. Cases of Cloth, Crabbe, 356. ® United States v. Hodson, 10 Wall. 395, 406, citing Cliquot’s Champagne, 3 Wall. 114, 115. 204 LAW OF TAXATION, [cH. IX. It seems highly probable that the word remedial has been em- ployed by the learned judge delivering the opinion in this case, in a sense differing from that in which it is commonly used in the law. A remedial law, as the term is generally employed, is some- thing quite different from the revenue Jaws. An author of ac- cepted authority expresses the ordinary understanding, when he defines a remedial statute to be “one which supplies such defects and abridges such superfluities of the common law as may have been discovered!; such as may arise either from the imperfection of all human laws, from change of time and circumstances, from mistakes and unadvised determinations of unlearned (or even learned) judges, or from any other cause whatever ; and this being done either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, has occasioned another subordinate division of remedial acts into enlarging and restraining statutes. So it seems that a remedial statute may also have its application to, and effect upon other existing statutes, and give the party injured a remedy; and for a more general definition, ‘it is a statute giving a party a mode of remedy for a wrong where he had none or a different one before.’””? Mr. Justice Blackstone speaks of statutes against frauds as remedial, but the context shows he is speaking of statutes giv- ing parties a remedy against frauds; and he adds: ‘when the statute acts upon the offender and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly, but when the statute acts upon the offense by setting aside the fraudulent transaction, here it is to be construed liberally.”* Another author in point ing out the distinction between penal and remedial laws remarks that ‘ the remedy for breach of a remedial statute is by an action for damages, sustained from such a breach, at the suit of the party grieved; that for breach of a penal statute, by an action of debt for the penalty, or, in more concise terms, the legal distinction be- tween remedial and penal statutes is, that the former gives relief 11 BL Com., 86. 2Potter’s Dwarris on Statutes, 73, citing, Chitty’s note to 1 BI. Com., 86. The definition in Bouvier’s Law Dictionary is the same. 31 Bl. Com., 88. CH. 1X.] THE CONSTRUCTION OF TAX LAWS, 205 to the party grieved ; the latter imposes penalties for offenses com- mitted.” * These considerations would seem to justi fy the conclu- sion that the learned judge, in applying the word remedial to tax laws, has used it in some political or special, rather than in the strict legal sense, and that it was not the intention of the court to overrule the opinion of Mr. Justice Story in Wigglesworth’s case.? There may and doubtless should be a distinction taken in the construction of those provisions of revenue laws which point out the subjects to be taxed, and indicate the time, circumstances and manner of assessment and collection, and those which impose pen- alties for obstructions and evasions. There is no reason for pecu- har strictness in construing the former. Neither is there reason for liberality. The difference in some cases is exceedingly im- portant. The one method squeezes everything out of the statute which the unyielding words do not perforce retain; the other reaches out by intendment, and brings within the statute what- ever can fairly be held embraced in its beneficent purpose. The one narrows the statute as it is studiel; the other expands it. Every lawyer knows how much easier it is to find a remedy ina statute than an offense. There must surely be a just and safe medium between a view of the revenue laws which treats them as harsh enactments to be circumvented and defeated if possible, and a view under which they acquire an expansive quality in the hands of the court, and may be made to reach out and bring within their grasp, and under the discipline of their severe provis- 113 Pet. Abr., 297, note. And see Cummings v. Frye, Dudley, 182; Carey v. Giles, 9 Geo., 258. Also the instance of remedial statutes in Potter’s Dwar- Tis on Stat., 231, 245. ?The opinion in U.S. %. Hodson, 10 Wall., 395, refers to Cliquot’s Cham- pagne, 4 Wall., 114, which in turn refers to Taylor o. United States, 3 How., 193. The opinion in this last case was given by Mr. Justice Story, and the language made use of, which consists largely in a quotation from the opinion given in the lower court, does not express his own views so clearly as was cus- tomary with that learned judge. What is manifest in his opinion is, that the point was not regarded as of importance in that case, the meaning of the statute being plain; and while the distinction pointed out by the lower court between penal and remedial laws is approved and shown to be in accordance with the authorities, it is not clear that the general remarks of the judge were intended to go further. It would have been a remarkable circumstanee if Mr. Justice Story had overruled his own opinion, delivered so receatly that, at that time, his son (and reporter) had not issued the volume containing it. 206 LAW OF TAXATION. [cH. Ix. ions, subjects and cases, which it is only conjectured may have _been within their intent. Revenue laws are not to be construed from the standpoint of the tax payer alone, nor of the government alone. Construction is not to assume either that the tax payer, who raises the legal question of his liability under the laws, is necessarily seeking to avoid a duty to the state which protects him, nor, on the other hand that the government, in demanding its dues is a tyrant, who, while too powerful to be resisted, may jus- tiflably be obstructed and defeated by any subtle device or inge- nious sophism whatsoever. There is no legal presumption either that the citizen will, if possible, evade his duties, or, on the other hand, that the government will exact unjustly or beyond its needs, All construction, therefore, which assumes either the one or the other, is likely to be mischievous, and to take onesided views, not only of the laws, but of personal and official conduct. The gov- ernment in its tax legislation is not assuming a hostile position towards the citizen, but, as we have elsewhere said, is apportion- ing for and as the agent of all, a duty among them; and the citi- zen, it is to be presumed, will perform that duty when it is clearly made known to him, and when the time of performance has arrived. Unjust exactions, if such are made, must be attributed to human imperfection, not to intent; and frauds and evasions are to be supposed exceptional. A recent decision of the supreme court of Connecticut lays down a rule, which, as applied to those provisions of the revenue laws which apportion the taxes and give ordinary remedies for their collection, seems not objectionable, though more liberal than is recognized by the authorities gener- ally. The case was a revenue case, and the question was whether a statute for imposing a personal tax on ‘persons who are resi- dents” of the taxing districts, could be applied to the personalty belonging to the estate of a deceased person. In support of such a construction it is said: ‘The greatest, and perbaps the only, objection that can be urged against this rule is, that we cannot say in strictness that the deceased or his estate is a resident of the district. This objection assumes that the statute is to be strictly construed. But we do not think that the doctrine of strict con- struction should apply to it. Statutes relating to taxes are not penal statutes, nor are they in derogation of natural rights. Al- though taxes are regarded by many as burdens, and many look CH. IX. ] THE CONSTRUCTION OF TAX LAWS. 207 upon them even as money arbitrarily and unjustly extorted from them by government, and hence justify themselves and quiet their consciences in resorting to questionable means for the pur- pose of avoiding taxation, yet, in point of fact, no money paid returns so good and valuable a consideration as money paid for taxes laid for legitimate purposes. They are just as essential and important as government itself; for without them, in some form, government could not exist. The small pittance we thus pay is the price we pay for the preservation of all our property, and the protection of all our rights. But there is not only a necessity for taxation, but it is eminently just and equitable that it should be as nearly equal as possible. Hence it is the policy of the law to require all property, except such as is specially exempted, to bear its proportion of the public burdens. Not only so, but the law manifestly contemplates that property rated in the list shall be liable for all taxes, town and school district taxes alike. This is evident from the provision that district taxes shall be laid on the town list, with special provision for certain changes rendered necessary in order to tax all the real estate situated within the district, and none situated without, and also to assess the tax in each instance upon the right person. In construing statutes relat- ~ ing to taxes, therefore, we ought, where the language will permit, so to construe them as to give effect to the obvious intention and meaning of the legislature, rather than to defeat that intention by a too strict adherence to the letter.”? 1 Cornwall v. Todd, 38 Conn., 448, 447, per Carpenter, J. Soitissaid in Hub. bard v. Brainard, 35 id., 568, 568, by Butler, J.: “A law imposing a tax is not to be construed strictly because it takes money or property zn invitum (although its provisions are for that reason to be strictly executed), for it is taken as ashare of a necessary public burden; nor liberally, like laws in- tended to effect directly some great public object, but fairly for the govern- ment and justly for the citizen; so as to carry out the intention of the legisla- ture, gathered from the language used, read in connection with the general purpose of the law, and the nature of the property on which the tax is imposed, and the legal relation of the tax payer to it.” And in Rein ». Lane, Law R., 2 Q. B., 144, 150, Blackburn, J., says: “We must construe the words of the statute imposing the duty according to the intention which those words ex- press when used in such a statute for such a purpose.” And in Lord Foley 2. Commissioners of Revenue, Law R., 3 Exch., 263, 268, Kelley, C. B., justly remarks that “it is better for the subjects and the state that the ordinary rules of construction should be applied.” Prof. Parsons in his Treatise on Con- 208 LAW OF TAXATION. (oH. Ix. If there should be any leaning in such cases it would seem that it should be in the direction of the presumption that every thing is expressed in the tax laws which was intended to be expressed. The laws are framed by the government for its own needs, and if imperfections are found to exist, the legislature, in the language of Mr. Dwarris, ‘is at hand to explain its own meaning, and to express more clearly what has been obscurely expressed.” But there can be no propriety in construing such a law either with ex- ceptional strictness amounting to hostility, or with exceptional favor beyond that accorded to other general laws. It is as un- reasonable to sound a charge upon it as an enemy to individual and popular rights, as it is to seek for sophistical reasons for grasp- ing and holding by its authority every subject of taxation which the drag net of the official force has brought within its sup- posed compass. The construction, without bias or prejudice, should seek the real intent of the law; and if the leaning is to strictness, itis only because it is fairly and justly presumable that the legis- lature, which was unrestrained in its authority over the subject, has so shaped the law as, without ambiguity or doubt, to bring within it everything it was meant should be embraced. In the state revenue laws the penal provisions are few and by no means severe. In the federal revenue laws, some of them are of a severity very seldom to be met with in penal statutes, and only to be justified by the supposed impossibility of collecting the revenue without them. In illustration of what is here said, 'ref- srence need only be made to the case of forfeiture of property for the mere indulgence of a fraudulent intent never carried into effect ; a forfeiture too, which may be visited upon a purchaser who has bought in good faith, and without suspicion of the intended fraud! Ifsuch provisions are to be construed with liberality, there is no reason why any other penal provisions whatsoever should not be. tracts, vol. 3, p. 287, states the proper rule very clearly and concisely: “Itis a well settled principle that every charge upon the subject must be imposed by clear and unambiguous words. * * But it is equally certain that no in terpretation will be adopted which must defeat the purpose of the law, pro vided the language of the statute admit fairly and rationally of an interpreta. tion which sustains that purpose.” 1 Henderson’s Distilled Spirits, 14 Wall., 44. CH. Ix.] THE CONSTRUCTION OF TAX LAWS. 209 Construction of local powers to tax. In the construction of any grant of the power to tax made by the state to one of its municipalities, the rule which is accepted by all the authorities is, that it should be with strictness. The reasonable presumption is held to be, that the state has granted in clear and unmistakable terms, all it has intended to grant at all; and whatsoever au- thority the municipal officers assume to exercise, they must be able to show the warrant for in the words of the grant. There is no inherent power in the municipalities to levy taxes; they can tax only as the state in its wisdom has thought proper to permit, and if the state has erred in the direction of strictness, the legisla- ture alone can correct the evil.! 1See the following cases which have laid down and will serve to illustrate this rule of strictness: Sharp »v. Spier, 4 Hill, 76; Doughty ». Hope, 3 Denio, 574; Tallman v. White, 2 N. Y., 66; Manice 2. id.,8id., 120; Cruger v. Dough- erty, 48 id., 107; Litchfield ». Vernon, 41 id., 128; Mays o. Cincinnati, 1 Ohio, N.58., 268; Cincinnati o. Bryson, 15 id., 625; Reed v. Toledo, 18 id., 161; Jonas v. Cincinnati, 18 id., 318; Savannah v. Hartridge, 8 Geo.,23; Augusta». Walton, 37 id., 620; Sanders v. Butler, 30 id., 679; Vanover v. The Justices, 27 id., 354; Richmond v. Daniel, 14 Grat., 385; Orange & Alexandria R.R. Co., v. Alex- andria, 17 id., 176; Holland »v. Baltimore, 11 Md.,186; Bouldin ». Baltimore, 15 id., 18; Harmony v. Osborne, 9 Ind., 458; Kyle v. Malin, 8 id., 834; Indianapo- lis ». Mansur, 15 id., 112; Carron v. Den, 26 N. J., 594; Leavenworth »v. Nor- ton, 1 Kan., 482; Snyder v. North Lawrence, 8 id., 82; Shawnee County »#. Car- ter, 2 id., 115; Chicago. Chicago, etc., R. R. Co.,20 IL, 286; Drake». Phillips, 40 id., 888; Douglass ». Placerville, 18 Cal., 648; Hewes o. Reis, 40 id., 255; Kuiper v. Louisville, 7 Bush, 599; Campbell County Court v. Taylor, 8 id., 206; Broadway Baptist Church v. McAtee, 8 id., 508; Bullock v. Curry, 2 Met., Ky., 171; Boston v. Schaffer, 9 Pick., 415; Nichol v. Nashville, 9 Humph., 252; Philadelphia v. Tryon, 85 Penn. St., 401; Bennett o. Birmingham, 31 id., 15; St. Louis». Laughlin, 49 Mo., 559; St. Charles v. Nolle, 51 id., 122; Lott ». Ross, 38 Ala., 156; Montgomery 2. State, 38 id., 162; Henry ». Chester, 15 Vt., 460; Municipality ». Pance, 6 La. An., 515; Asheville v. Means, 7 Ired., 406; Dean ov. Charlton, 27 Wis., 522; Clark v. Davenport, 14 Iowa, 494; Fairfield ». Ratcliffe, 20 id., 896; Oregon Steam, etc. Co.. v. Portland, 2 Ore.,81; United States v. Burlington, 2 Am. L. Reg., N. 8., 894; Leonard v. Canton, 35 Miss., 189; Dillon, Mun. Corp., § 605; Cooley’s Const. Lim., 195. “The power to tax isa high governmental power, but fortunately for the people it cannot be exercised by the legislative authority without limit, 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 part will be fatal to the attempt to exercise it.” Peters, J.in Campbell County Court v. Taylor, 8 Bush, 206, 208. It was held in this case that authority to the voters of a county to vote a specified tax was 14 210 ‘LAW OF TAXATION. [cH. Ix. This rule confines the municipalities, in the levy of taxes, strictly to the ordinary purposes for which such municipalities are accustomed to make levies. The customary grant does not goa step beyond this, and unusual purposes cannot be brought within the scope of their taxing power without an express grant which clearly indicates the special object.1 This is not only in accordance with the general rule that construes sovereign grants with strictness, but it is also obviously wise. The mischief of a strict construction is easily obviated by the legislature; but the mischief of a liberal construction may be irremediable before it can be reached.? It is in accordance with this rule, that the au- thority conferred upon a county to levy a tax “for county pur- poses” was held, in Georgia, not to warrant a tax for the con- struction of public buildings; county purposes, as understood in that state, being the support of the poor, public education, and the like® In Maine, it was held that a general power in a town to tax for corporate purposes would not include the right to tax in order to make a toll bridge free* Whatever doubt might be not exercised by a vote of the county excluding a city therein. See for a simi- lar principle, Attorney General ». Supervisors of St. Clair, 11 Mich., 68. Au. thority to levy a tax on taxable property will not authorize a specific tax on an insurance company (not on their capital). Augusta 7. Walton, 37 Geo., 620. It will authorize a tax on the shares in a bank without their being specially mentioned. Frederick ». Augusta, 5id., 561; Pearce v. Augusta, 87 id., 597; Augusta v. National Bank, 47 id., 562. A statute authorizing a tax on divi- dends over a certain per cent. on capital, means capital actually paid in, and not merely authorized capital. Street Railway Co. v. Philadelphia, 51 Penn. St. 465; Philadelphia v. Ferry Railway Co., 52 id., 177. A power to tax all personal property within a city, held not to reach shares in a railroad owned by a resident. Richmond v. Daniel, 14 Grat., 385. An interpretation of a statute for the assessment of a special tax which will interfere with the general tax law, is not to be adopted unless there is the clearest language to justity it. State v. Douglass, 33 N. J., 363. 1§Stetson v. Kempton, 13 Mass., 272; Alley v. Edgecomb, 53 Me., 446. * Where a city has authority to levy taxes only to a certain percentage on the assessment, the power to levy more is not to be implied from the fact that, by the charter, it is made the duty of the city to erect hospitals, poor houses, etc., and more would be needed for those purposes. Leavenworth v. Norton, 1 Kansas, 482. 3 Vanover v. The Justices, 27 Geo., 354. As to what are “ county purposes” in Minnesota, see McCormic ». Fitch, 14 Minn., 252, ‘Bussy v. Gilmore, 3 Greenl., 191. CH. IX. ] THE CONSTRUCTION OF TAX LAWS. 211 raised as to this last decision, there can be none, we should sup- pose, of the correctness of those which have held that a power to tax for necessary town charges would not warrant a tax to raise military forces or to pay military bounties. This is clearly no part of the corporate duty of a town, and could not be supposed within the intent of the legislature in providing for necessary town charges.’ Similar rulings have been made in a great variety of cases, in which particular powers have been claimed; but the reader must be referred to works on the special subject of muni- cipal law, for a reference to these decisions.” 1 The leading case on this point is Stetson 7. Kempton, 18 Mass., 272, 278, in which Parker, Ch. J., gives his idea of what constitutes town charges, as fol- lows: “The phrase necessary charges is indeed general; but the very gen- erality of the expression shows that it must have a reasonable limitation. For none will suppose that, under this form of expression, every tax would be le- gal which the town should choose to sanction. The proper construction of the terms must be that, in addition to the money to be raised for the poor, schools, etc., towns might ruise such sums as should be necessary to meet the ordinary expenses of the year; such as the payment of such municipal officers as they should be obliged to employ, the support and, defense of such actions as they might be parties to, and the expenses they would incur in per- forming such duties as the laws imposed, as the erection of powder houses, providing ammunition, making and repairing highways and town roads, and other things of a like nature: which are necessary charges, because the effect of a legal discharge of their corporate duty. The erection of public build. ings for the accommodation of the inhabitants, such as town houses to as- semble in, and market houses for the sale of provisions, may also be a proper town charge, and may come within the fair meaning of the term necessary; for these may be essential to the comfort and convenience of the citizens. But it cannot be supposed that the building of a theater, a circus or any other place of mere amusement, at the expense of the town, could be justified under the term necessary town charges. Nor could the inhabitants be lawfully taxed for the purpose of raising a statue or monument, these being matters of taste and not of necessity, unless, in populous and wealthy towns, they should be thought suitable ornaments to buildings or squares, the raising and main- tenance of which are within the duty and care of the governors or officers of such towns.” See Alley v. Edgecomb, 53 Me., 446. Compare Lisbon v. Bath, 21 N. H., 319; Bangs v. Snow, 1 Mass., 181; Cruckshanks 2. Charleston, 1 McCord, 360; State v. Charleston, 2 Speers, 623; Simmons o. Wilson, 66 N. C., 336. 2 Dillon on Municipal Corporations is specially referred to. Mention of the following cases may, perhaps, be useful in this connection: A vote at a town- ship meeting to raise “all the law will allow for school purposes,” held good, though informal. State 9. Sickles, 24 N. J.,125. The authority that may yote a tax cannot refer it to a committee or to officers with power. State v. 212 LAW OF TAXATION. [cu. Ix. Liability of power to abuse. The liability of the taxing power to abuse is often assigned as a reason why, in particular cases, it should be held not to have been conferred. But this is illogical and unreasonable. “ Every authority, however indispen- sable, may be abused, and if it might not, it would be powerless for good.”1 The point is forcibly put by the supreme court of Ohio. ‘It has been strongly urged that this power is peculiarly liable toabuse. Jt is liable to be abused; perhaps peculiarly so. But so is all government, and all governmental powers. Yet gov- ernment is nevertheless a necessity among men. It is a very bad government indeed which is not better than the inevitable anarchy and outrage which follow the absence of all government. And the fact that a power is liable to be abused, affords no conclusive argument against it.” * Itis only a reason for caution in construc- tion, in order to be certain that the power is intended to be given, and for holding the donee of the power to a strict execution of the authority. Directory and mandatory provisions. Much use is made in the law of taxation of the words directory and mandatory, as words of classification of the various provisions of tax laws, as regards the imperative nature of the obligation they impose on the reve- nue officers to obey them strictly. All the provisions of a statute not on their face merely permissory or discretionary, are intended to be obeyed, or they would not be enacted at all; and therefore they come to the several officers who are to act under them, as Sickles, supra; Robinson v. Dodge, 18 Johns., 351; Trumbull v. White, 5 Hill, 46; Mercer County Court v. Navigation Co., 8 Bush, 300. A tax, purporting to be levied by the authorities of two districts, meeting and acting jointly, is void. State v. Reeves, 28 N.J.,520. Authority to a county to levy a tax for county buildings, will not authorize the issue of bonds for the purpose. Shawnee County v. Carter, 2 Kansas, 115. The power to impose license fees is not contained in a grant of general local legislation. Sanders v. Butler, 30 Geo., 679. A city charter, conferring power to tax in general terms, is to be understood, in speaking of “property within the city,” to mean visible prop- erty within the city, and would not include debts owing to a citizen by peo- ple residing abroad. Johnson v. Lexington, 14 B. Monr., 648. Followed in Covington v. Powell, 2 Met. (Ky.), 226; Louisville ». Henning, 1 Bush, 381. 1 Gibson, Ch.J., in Kirby v. Shaw, 19 Penn. 8t., 258, 260. 2 Brinkerhoof, J.. in Reeves v. Treasurer of Wood County, 8 Ohio, N. S., 833, 343. See Breevort v. Detroit, 24 Mich., 322, 325; Bridgeport o. N. ichols, 28 Conn., 189, 208. CH. 1x.] THE CONSTRUCTION OF TAX LAWS. 213 commands. But the negligence of officers, their mistakes of fact or of law, and many other causes will often prevent a strict obe- dience, and when the provisions which have been disregarded constitute parts of an important and perhaps complicated system, it becomes of the highest importance to ascertain the effect the failure to obey them shall have on the other proceedings with which they were associated in the law. The form the question most commonly assumes is this: Some official act which the law provides for, and which constitutes one step to be followed by others in reaching a specified result, having failed to be taken, Does the authority to proceed toward the intended result, termi- nate when that particular step has been neglected, or may the proceeding go on to a conclusion treating the neglect as immate- rial? If the proceeding fails at that point, the requirement of the official act which has been neglected is said to be mandatory, but if it may still proceed, the requirement is directory only ; that is to say, the law directs that particular act to be performed, but does not imperatively command it as a condition precedent to anything further. In some cases the question assumes a different form. The mu- nicipalities, it has been seen, levy and collect taxes not only for their own purposes, but also. under state apportionment for the state at large. The power | to ‘levy taxes is usually conferred upon them in merely permissoy- ry. “terms; terms implying a discre- tion to levy them or not at the will of the local majority or the local board. These may sometimes raise the question whether they are intended to confer a discretionary authority merely, or, on the other hand, whether they were not meant to impose a duty and put the municipality under an imperative obligation. A solution of this question will commonly depend upon the purpose of the tax for which authority is given. If the tax is for purely local purposes, the permission to levy it.can seldom be regarded as anything more than an enabling statute, of which advantage may be taken or not, at discretion ; but if it is for gen- eral purposes, the law must be regarded as imposing a duty. In whatever terms the authority is conferred upon a county to levy its proportion of the state tax, the levy is imperative ; and per- missory words in the statute may be construed as commands, and a reluctant local authority may be coerced into a performance of 214 LAW OF TAXATION. [cH. Ix. the duty. The rule is the same where what is authorized is for the purpose of meeting some legal obligation of the municipality ; “for where a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall,” and imports a duty equally imperative. In most cases, however, the question whether any particular provision of a tax law is mandatory or not, will arise between the government and its officers, or some one claiming under their proceedings on the one side, and the person taxed on the other ; and the form it will take will be, whether the person taxed is entitled to defeat any proceeding which is being taken adversely to him, by reason of the failure on the part of the officers to observe some direction of the statute under which they derive their authority. If he may, it is because the direction was mandatory, and obedience to it a condition precedent to any further adverse proceedings. The phraseology of the statute may sometimes settle this ques- tion very conclusively. If by the use of negative words it requires a particular proceeding to be taken in a particular time or man- ner, and makes it void if not so done,’ or gives it effect, provided it is so done,’ or declares that, unless it is taken, subsequent pro- ceedings shall not be had,‘ or prohibits its being done except at the time the statute prescribes,® or if any terms plainly imperative are employed, the intent is clear, and ‘no, discretion can be permitted in construction. It is not often,, however, that these or similar words are met with in the statutes which define official duties un- der the revenue laws, and the construction of particular provis- ions must be left for determination in such light as the obvious purpose they were intended to accomplish may afford. And that purpose, it would seem, ought generally to be conclusive. 1 Rex v. Barlow, 2 Salk., 609. See Rex o. Inhab. of Derby, Skinner, 370; Virginia v. The Justices, 2 Virg. Cas., 9; Justices of Clark County v. Railroad Co., 11 B. Monr., 143; Coy v. Lyons City, 17 Iowa, 1; State o. Harris, 17 Ohio, N.5., 608; Baltimore v. Marriott, 9 Md., 160,174; New York o. Furz, 3 Hill, 612; Minor o. Mechanics’ Bank 1 Pet., 46; Mason v. Fearson, 9 How., 248; Supervisors v. United States, 4 Wall., 485; Galena v. Amy, 5 id., 705. °The King v. Hepswell, 8 B. & C., 466. 3 The King ». Inhab. of St. Gregory, 2 Ad. v. EL., 99. 4Stayton v. Hulings, 7 Ind., 144. 5 In re Douglass, 46 N. Y., 42. cH. 1x.] THE CONSTRUCTION OF TAX LAWS. 215 No one should be at liberty to plant himself upon the nonfeas- ances or misfeasances of officers, under the revenue laws, which in no way concern himself, and make them the excuse for a failure on his part to perform his own duty. On the other hand he ought always to be at liberty to insist that directions which the law has given to its officers for his benefit shall be observed. Many eminent judges have endeavored to lay down a general rule on this subject, by which the difficulties in tax cases may in gen- eral be solved. In one of the most recent cases in which this has been attempted, the general doctrine is stated as follows: ‘“ There are undoubtedly many statutory requisitions 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 ineffectual. Such generally are regulations designed to secure order, system, and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be ‘njuriously affected. Provisions of this character are not usually regarded as mandatory, unless accompanied by negative words, importing that the act 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 measure and conditions prescribed for its exercise.” ? The same rule in nearly the same terms has been laid down in other cases,” and it seems a sound and just rule, and may reason- ably be believed to be in accord with the legislative will in the 1 Feld, J, in French v. Edwards, 13 Wall., 506, 511. 2See especially Torrey v. Milbury, 21 Pick., 64, per Shaw, Ch. J., approved and followed in State v. Jersey City, 35 N. J., 381, 386; Clark v. Crane, 5 Mich., 151, 154, per Manning, J.; O'Neal v. Va. & Md. Bridge Co., 18 Md., 1, per Tuck, J.; McDonough ». Gravier, 9 La. An., 546; Spear ». Ditty, 8 Vt. 419; Shawnee County ». Carter, 2 Kansas, 115; Wheeler v. Chicago, 24 Ill. 105, 108; Walker ». Chapman, 22 Ala. 116; Kelly ». Craig, 5 Ired., 129; Magee ». Common- wealth, 46 Penn. St., 358. AJI acts required by the statute in order to make the tax chargeable are conditions precedent and must be strictly complied with, or the tax cannot be collected. Hewes o. Reis, 40 Cal., 255. 216 LAW OF TAXATION. [CH. IX. cases to which it is applicable. All legislation must be supposed to take into account the possible, if not probable mistakes and irregularities of officers in executing the provisions of the law, and it is hardly reasonable to infer an intent, on the part of a legislative body, that a failure of administrative officers to comply with any provision made for the benefit of the state exclusively, or merely as a guide in orderly proceedings, should deprive the state of all benefit to be derived from a compliance with other provisions that embody the main purpose and object of the law. Nor, on the other hand, is it to be supposed the legislature in- tended its own securities for the protection of individual rights and property should be disregarded with impunity.’ Instances of mandatory provisions. What, then, are the provisions of tax laws which are made for the benefit and protec- tion of the individual tax payer? In many cases this question, as applied to particular provisions, is easily solved; in others there is more difficulty. That the tax payer shall be entitled to such protection as the official responsibility of officers can give him ; that the tax shall be voted by the competent authority and under uny conditions which the law has prescribed; that there shall be official warrant for any compulsory proceedings;? all 1 See Corbett v. Bradley, 7 Nev., 106, 108, per Lew7s, Ch. J.; Briggs v. Georgia, 15 Vt, 61, 72, per Hubbard, J.; Dryfuss v. Bridges, 45 Miss., 247; State o. Lean, 9 Wis., 279, 292. In Sandwich »v. Fish, 2 Gray, 298, 301, Shaw, Ch. J., in an- swering an objection made on behalf of a defaulting collector, that certain provisions regarding the authority to collect had not been complied with, says: “ The provisions of the statutes as to the form of warrants and tax lists, and the place where the lists shall be deposited, are intended for the benefit of the taxpayers. As to all other persons they are directory merely, and not cun- ditions precedent. Defects in the warrant or tax list might be a good excuse for not executing the warrant. But to say that a collector who has collected the money without objection by the tax payers, is not liable to account there- for would be as contrary to the rules of law as to justice. He can only avail himself of such defects as have prevented his performance of his.duty.” 2 Where the statute provided that a tax voted at an annual town meeting in March should be assessed on the tax list of the May following, it was held mandatory and the town incompetent by vote to authorize the seluctmen to assess it on the list of the previous year. Alger v. Curry, 38 Vt., 382. Where the statute requires the tax list to be verified by an oath “made and sub- scribed,” this means an oath duly certified in writing, and the absence of it ig fatal to the proceedings. “Applying to the case the rules which have gov- erned the courts in passing upon this class of titles, the objection must be held CH. 1x. ] THE CONSTRUCTION OF TAX LAWS. 217 these are manifestly conditions precedent to any lawful demand whatever upon the citizen. They are of the highest importance, because it is only by means of the requirement of official action in an orderly manner and at periodical times, that he can be protected against arbitrary and capricious action. Moreover, they go to make up the power which the law gives to its agents over the property and persons of the people; and without the power to act, all attempted action is a trespass upon individual rights! There must be a voting of the tax by the proper authority ; there must be an assessment and an apportionment. So far all is clear. So fatal. The assessor acts under a special and limited authority, conferred by the law and not by the owner of the estate. He is the mere instrument to pass the title. The proceeding is construed strictly, and the power must» be strictly pursued in every particular. The law requires that every prerequisite to the exercise of the power to sell the estate must precede its exercise. The agent must pursue the power or his act will not be sustained by it. These principles have been recognized by this court in their application to tax titles in repeated decisions. Yenda v. Wheeler, 9‘Texas, 408; Robson » Osborn, 13 id., 298; Wafford v. McKinna, 28 id. 36.” Wheeler, Ch. J., in Davis ». Farnes, 26 id., 296, 297. 1See Chapter VIII. Where an act providing for local improvements re- quired the certificate of the commissioners of public works, as to the amount of, expense paid or actually incurred by the city, as the basis of the assessment, it was held that nothing could be the substitute for this. The affidavit of the surveyor will not be received. Petition of Cameron, 50 N. Y., 502. 2“ Many of the provisions of our statute regulating the imposition of» taxes, must be considered directory merely. Some are doubtless conditions; such as those which are intended to secure an equality of taxation or burdens among the citizens, that is, that the citizen may know for what he is taxed, know his valuation, and have notice of the time and place of appeal.” Cowl ter, J., in Insurance Co. v. Yard, 17 Penn. St., 381, 488. In O’Neal ». Va. & Md. Bridge Co., 18 Md., 1, 23, Tuck, J., explains the distinction between di- rectory and mandatory provisions in tax laws, and refers to Youngs ». State, 7 G. & J., 253, and other Maryland cases. Where the statute required the county judge in case of default of a tax collector to collect and pay over, on his own knowledge or on complaint of the treasurer, to hold a court within 20 days to try such delinquent collector, this was held to be in point of time directory merely, the time not being prescribed for the benefit of the collector, “but rather to quicken the diligence of the judge, so that justice may be promptly administered and the greater certainty of collections insured.” Stickney v Huggins, 10 Ala., 106. A requirement that taxation shall be by value is man- datory. Life Association ». Board of Assessors, 49 Mo., 512. Where a lot owitted from the assessment of the preceding year is to be placed upon the ror. with the valuation of the last year when it was assessed, if the lot was 218 LAW OF TAXATION. [oH. Ix. all provisions designed to give him the opportunity of a review of the assessment, whether by the assessors themselves or on an ap- peal from their conclusions, are exclusively in his interest. Every notice which the statute provides for to that end, whether by pub- lication or otherwise, must be given with scrupulous observance of all its requisites. The notice cannot be shortened a single day without rendering it ineffectual; the presumption being that the law has made it as short as was deemed consistent with due pro- tection.1 A published notice cannot be received as the substitute for a notice to be personally delivered to the party coucerned.? The same rules apply to any notice required of subsequent pro- ceedings; if required to begiven within a certain time, or in any prescribed mode,’ it must be so given. A statute declaring that never on the roll, it cannot be put on under the provision. People v. Goff, 52 N. Y., 484. Hall, J., in Chandler v. Spear, 22 Vt., 388, 398, says, “ 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 manuer prescribed, or the title is invalid; and in this re- spect the statute must strictly, if not literally, be complied with. Spear. Ditty, 9 Vt., 282; Bellows ». Elliott, 12 id., 569, 574; Sumner ». Sherman, 13 id., 909, 612; Carpenter 9. Sawyer, 17 id., 122, 124. But in determining what is required to be done, the statute 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 construc- tion, as direct them in other cases. Spear v. Ditty, 8 Vt., 419, 421; Bellows ». Elliott, 12id., 569, 574; Isaacs v. Shattuck, 12 id., 668.” 1 See cases cited in Chapter XV. 2 Moulton v. Blaisdell, 24 Me., 283; Lovejoy v. Lunt, 48 id., 877. And see Lagroue v. Rains, 48 Mo., 536. Where the notice is to be given personally and also by publication, a failure in either is fatal. Appeal of Powers, 29 Mich., 504. 3 The statute required the sheriff at the next term of the county court pre- ceding a tax sale,to return a list of the lands on which taxes were unpaid, with the names of the owners if known, and other particulars, and this was to be read aloud, recorded in the minutes, and posted intheroom. Heldto be mandatory. Kelly v. Craig, 5 Ired., 129. In Sprague v. Bailey, 19 Pick., 436, a provision that notice of abatement to those who should pay their taxes prompt- ly, should be posted in public places, was regarded directory merely. The point was not reasoned. All provisions regarding notice of sale and the place of sale aremandatory. State v. Rollins, 29 Mo., 267; Rubey v. Huntsman, 32 id., 501; McNair o. Jenson, 33 id., 3812. A tax was assessed to the owner of flea, equity of redemption and lands sold therefor. The statute then in force pro." CH. IX.] THE CONSTRUCTION OF TAX LAWS. 219 all resolutions, etc., involving an appropriation of money, or taxa- tion, shall be published “in all the newspapers employed by the corporation,” and not be passed until after notice has been pub- lished at least two days, is plainly intended to be imperative. Whatever tends to make the right to redeem more valuable to him must be observed; and here time may be of the very highest importance; and at no stage of the proceedings should the requi- sites of notice be more strictly observed. These are illustrations of mandatory requirements. Many others are noticed in other chapters.” Instances of directory provisions. On the other hand, the requirement of an official bond or oath from an officer is for the protection of the public, and not of the tax payer.’ So in general the fixing of an exact time for the doing of an act is only directory, where it is not fixed for the purpose of giving the party a hearing, or for any other purpose important to him.4 So the requirement of a warrant to the town assessors re- quiring them to assess the state tax, 1s directory, as this becomes vided that no sale of real estate for taxes should affect the rights of any person not taxable therefor, unless a written demand was first made upon said person by the collector for the payment of said taxes. No demand in this case was made upon the mortgagee before the sale. Held, that a repeal of this statute did not leave him liable for the tax. 'Tinslar v. Davis, 12 Allen, 79. 1Petition of Douglass, 46 N. Y., 42; Petition of Smith, 52 id., 526. *See in general, in addition to the cases already cited regarding mandatory provisions, Hoffman v. Bell, 61 Penn. St., 444; Kniper v. Louisville, 7 Bush, 599; First Presb. Ch. v. Fort Wayne, 36 Ind., 338; Sibley v. Smith, 2 Mich., 486; Rayner v. Lee, 20 id., 8384; People »v. Clark, 47 Cal., 456; Richardson ». Heydenfeldt, 46 id., 68; Culver ». Hayden, 1 Vt., 359; Richardson ». Dorr, 5 id., 9; Brown v. Wright, 17 id., 97; Judevine v. Jackson, 18 id.,470; Taylor ». French, 19 id., 49; Langdon 2. Poor, 20 id., 18; Lane v. James, 25 id., 481; see also post, Chapter XV. See Hale v. Cushing, 2 Greenl., 28; Scarborough ». Parker, 58 Me. 252; ante, Chapter VIII. In Vermont the decisions are that if the collector appointed to collect any tax assessed on lands for roads and bridges shall fail to give the required bond, any sale made by him is void. See Oatman v. Barney, 46 Vt., 594, and cases cited. 4Hart v. Plum, 14 Cal., 148. As where an assessment was to be filed within twenty days, but this was only tomake italien. Magee ». Commonwealth, 46 Penn. St., 358. 220 LAW OF TAXATION. [CH IX. of no moment if they act without it? A provision that the true value and the equalized value of lands shall appear in distinct columns on the roll is directory only, as the failure to obey it in no way affects the person taxed. So putting a special tax ina column by itself on the roll when it should be put with the town tax is equally harmless, and therefore cannot affect the proceed- ings. And manifestly the tax payer has nothing to do with any accounting by the officer, or with any report or document to be made by him for the security of the public or far the information of superiors only, and which is not to be warrant for, or to affect in any manner subsequent proceedings for enforcing the tax. In the margin many other cases are referred to in which statutory provisions have been decided to be merely directory.® 1 Alvord o. Collin, 20 Pick., 418. In this case it was decided that a levy which was excessive as to the school tax, but not excessive in the aggregate was valid. ? Torrey v. Milbury, 21 Pick., 64. The failure of the clerk to enter the word sold in the book opposite the description of the land as required by the statute, dves not defeat the sale. Playter v. Cockran, 37 Iowa, 258. 3Wall ov. Trumbull, 16 Mich., 228. Compare Case v. Dean, 16 id.,12. A statute required that a school district tax should be assessed within thirty days after the clerk of the district should certify to the assessors the sum to be raised. This is only directory. Pond v. Negus,3 Mass., 220; Williams ». School District, 21 Pick, 75; similar ruling in Gale v. Mead, 2 Denio, 160; Gearhart v. Dixon, 1 Penn. St., 224; Smith o. Crittenden, 16 Mich., 152; Harrison Co. Commissioners v. McCarty, 27 Ind., 475. For somewhat similar provi- sions held to be mandatory, see Mix v. People, Sup. Ct., Ill., June term, 1874, 7 Chicago Legal News, 2; Cowgill o. Long, 15 IIL, 202. Compare Eames 2. Johnson, 4 Allen, 382. ‘Tweed o. Metcalf, 4 Mich., 578. The clause in the tax warrant, “and you are hereby directed to settle with the selectmen by the 20th day of September next,” is merely directory, and does not limit the collector’s power to that time, Picket o. Allen, 10 Conn., 145. 5 Craig o. Bradford, 8 Wheat., 594; U.S. 0. Kirkpatrick, 9 id., 720: U.S. 0 Dandridge, 12 id., 64; Hale o. Cushing, 2 Greenl., 218; Muzzy ». White, 3 id., 290; Scarborough v. Parker, 53 Me., 252; Holland ». Osgood, 8 Vt., 276, 280; Cortiss v. Corbiss, 8 id., 378, 390; Allen v. Parish, 3 Ohio, 187; Fry ». Booth. 19 Ohio, N.S., 25; Vance o. Schuyler, 1 Gilm., 160; Webster »v. French, 12 Ill. 802; State v. McGinly, 4 Ind.,7; Stayton v. Hulings, 7 id, 144; No- land ». Busby, 28 id., 154; New Orleans ». St. Romes, 9 La. An., 573; Ed- wards 0. James, 13 Texas, 52; Lawrence v. Speed, 2 Bibb, 401; Hayden v. Dunlap, 3 id., 216; People ». Allen, 6 Wend., 486; Hx parte Heath, 3 Hill, 43; Jackson v. Young, 5 Cow., 269; People o. Holley, 12 Wend., 481; Striker 9, CH. Ix.] THE CONSTRUCTION OF TAX LAWS. 221 Retrospective taxation. The basis of an apportionment of taxes may as lawfully be retrospective as the reverse; that is to say, it may as well have regard to benefits theretofore received as to those which may be received thereafter. Where taxes are levied for a series of years upon the same valuation of property, they are necessarily retrospective, and one may be taxed upon property which he has long ceased toown when the tax is levied. But there is commonly a presumption that any new tax law was not intended to reach back and take for its standard of apportion- ment a state of things that may no longer be in existence. “ New burdens,” it is very justly said, “ ought always to be prospect- ive,”? and it is reasonable to suppose the legislature bas intended that they should be. Such a supposition is in harmony with the general rule of law which requires the courts to “always construe statutes as prospective and not retrospective, unless constrained to the contrary course by the rigor of the phraseology.”? This is Kelley, 7 Hill, 9; Gale o. Mead, 2 Denio, 160; People v. Peck, 11 Wend., 604; Doughty v. Hope, 3 Denio, 252; Elmendorf ». New York, 25 Wend., 698, 696; People v. Cook, 8 N. Y., 67; Pond v. Negus, 3 Mass., 230; Lowell v. Hadley, 8 Met., 180; People v. Doe., 1 Mich., 451; Parks». Goodwin, 1 Doug., Mich., 56; Hickey 2. Hinsdale, 8 Mich., 267; People v. Hartwell, 12 id., 508; State o. Click, 2 Ala., 25, 26; Savage 0. Walsh, 26 id., 620; McKune ». Weller, 11 Cal., 49; State ». County Commissioners, 29 Md.,516; Huey 0. Van Wie, 23 Wis., 618; Adams v. Seymour, 80 Conn., 402. The omission of the collector to en- ter upon his warrant the true day and year when he received it does not inval- idate his proceedings under it. Goodwin ». Perkins, 39 Vt. 598. The right of the commonwealth to levy a tax on the market value of the capital stock of a corporation is not defeated by the neglect of the city assessors to make re, turn of the corporation to the treasurer of the commonwealth as required by statute. Commonwealth ». New England Slate & Tile Co., 13 Allen, 391. 1 Commonwealth ». Pennsylvania Ins. Co., 18 Penn. St., 165. In that case it was decided that a tax measured by dividends “from and after January 1, 1841” would not apply to a dividend declared by the proper committee De- cember 30, 1840, but not passed upon by the directors until January 4, 1841. 2 Woodward, J., in Price ». Molt, 52 Penn. St., 315, 8316. And see Philadel- phia ». Ferry Railway Co., 52 id., 177; Marsh v. Chestnut, 14 Ill, 223; Thames Manuf, Co. v. Lathrop, 7 Conn., 550; Warren R. BR. Co. v. Belvidere, 35 N. J., 584; Clark v. Hall, 19 Mich., 356; Potter’s Dwarris on Statutes, 163, 166; Cooley’s Const. Lim., 370, and cases cited. A law declaring that certain de- fenses shall not be made to tax deeds until the redemption money is paid will not apply to prior sales. Conway 2. Cable, 37 IIL, 82. Where taxes are levied under a law which is repealed by a subsequent act, unless it appears clearly that the legislature intended the repeal to work retrospectively, it will be as- 222 LAW OF TAXATION. [CH. 1x. the rule not only as a construction of the grant of power, but also as to all the incidents; though a remedial provision may well be presumed to have been intended to reach back for the pur- poses of justice? And in cases where a tax is levied to meet ex- penses previously incurred, or to pay the cost of something of which the persons to be taxed have already had the benefit, any presumption against an intent to give the law retroactive opera- tion may be overcome by the apparent justice of such a construc- tion. sumed that it intended the taxes to be collected according to the law in force when they were levied. Oakland ». Whipple, 44 Cal., 808. In Allen ». Drew, 44 Vt., 174, an act was construed so as to govern the proceedings by one sub- sequently approved, the two having been pending together, and the one first approved expressly in terms referring to the other. A statute making mort- gagees personally liable for taxes on the land after taking possession, held appli- cable to mortgages given before but under which the mortgagees took posses- sion after the statute was passed. Andrews». Worcester, etc., Ins. Co., 5 Allen, 65. 1TIn Gerry o. Stoneham, 1 Allen, 319, a statute providing that where a party was assessed more than his due and legal proportion, the tax and assessment should be void only for the excess, and a recovery by suit should be limited to the excess, was held not applicable to pending actions. 2? When the Michigan tax laws have been revised, it has been held that stringent provisions therein designed to favor tax titles must be understood to apply to cases originating under the revision. Clark ». Hall, 19 Mich., 856; Smith v. Auditor General, 20 id., 398. That revision, however, contained a section which required every person redeeming from the tax sale to pay, not only the redemption money with heavy interest to the purchaser, but also a penalty of twenty-five per cent. to the state. Now there was no more reason and no more justice in the state exacting a penalty for the privilege to one party to redeem from the tax purchase of another, than there would be for de- manding a like penalty for the privilege of redeeming from an execution sale, or for voluntarily paying an honest debt; the exaction, if legal — which may well be questioned — was unjust and impolitic, for it tended to bring about the forfeiture of estates, and every state is interested that this shall not happen to its citizens. It was, therefore, held to be a reasonable presumption, when this provision was repealed, that the state intended the repeal to apply to past as well as to future sales. People v. Auditor General, Sup. Ct. Mich., at June term, 1875, not yet reported. Compare Tinslar »v. Davis, 12 Allen, 79, which was a strong case for the application of the opposite presumption. Tho repeal of a tax law which makes deeds on tax sales prima fucte evidence of title, where it is done by a new tax law which contains a similar provision, will not prevent deeds given under the repealed law being prima facie evi- dence of title; the fair presumption being that the legislature intended that rule to be continuous. Blackwell v. Van Vleet, 30 Mich., 118. : CH. X.] CURING DEFECTS IN TAX PROCEEDINGS. 223 CHAPTER X. CURING DEFECTS IN TAX PROCEEDINGS. A subject intimately connected with that of the construction of tax laws, is that of the power of the legislature by other legis!a- tion to dispense with obedience to those regulations which have been prescribed by itself for the protection of those who are taxed. It is a subject which presents, perhaps, more intrinsic difficulties than the other. An act of dispensation may assume any one of several forms: 1. It may assume the form of a rule of conclusive evidence, which should preclude a departure from the law being shown. 2. It may take the form of a mandate to officers, commanding them to give effect to proceedings that have been taken, disregard- ing any defects. 3. It may be a special curative statute to heal defects in certain specified proceedings which have been taken. 4. It may be a general curative statute to heal irregularities or defects in any proceedings whatsoever previously taken. 5. It may be a general statute for future cases, which, while marking out a course for the officers to pursue, shall at the same time declare that irregularities shall not vitiate any proceedings had under the statute. 6. Besides these, there may be either a special or a general law for reassessing the tax, when the proceedings for its collection have proved ineffectual. Legislation coming under each of these heads is to be met with in the statutes of the several states, and is entitled to some con- sideration. 1. Conclusive Rules of Evidence. A legislative act which should declare a tax conveyance conclusive evidence that the title of the former owner was divested, and was passed by the deed to the purchaser, could only be supported under the sovereign legisla- tive power to frame and change at its will the rules of evidence. That power is confessedly great, but it is not unlimited. Itisa 224 LAW OF TAXATION. [CH. X. power to shape and mould, for the purposes of justice, the rules under which parties are to make a showing of their rights, and not a power to preclude their showing them. ‘ The most formal con- veyance may be a fraud ora forgery ; public officers may connive with rogues to rob the citizen of his property; witnesses may tes- tify or officers certify falsely, and records may be collusively manufactured for dishonest purposes; and that legislation which would preclude the fraud or wrong being shown, and deprive the party wronged of all remedy, has no justification in the principles of natural justice or of constitutional law. A statute, therefore, which should make a tax deed conclusive evidence of a complete title, and preclude the owner of the original title from showing its invalidity, would be void, because not a law regulating evidence, but an unconstitutional confiscation of property.”’+ In this con- nection, it is hardly necessary to say that no reference is had to cases under statutes of limitation, nor to cases resting on princi- ples of equitable estoppel. 2. Legislative Mandates. A mandate to officers commanding them to give effect to invalid proceedings would be ineffectual for reasons equally conclusive. If such an act proceeds without an inquiry into the facts, itis a naked attempt to transfer one man's property to another by mere legislation, and this is not an authority which belongs to any legitimate government.? If it 1 McCready v. Sexton, 29 Iowa, 356. And see Groesbeck v. Seeley, 138 Mich., 329; Case v. Dean, 16 id., 12; White v. Flynn, 23 Ind., 46; Corbin ». Hill, 21 Towa, 70; Abbott 0. Lindenbower, 42 Mo., 162; 8. C., 46 id., 291; Wright 2. Cradlebaugh, 3 Neyv., 341, 849; Young v. Beardsley, 11 Paige, 93; East Kings- ton v. Towle, 48 N. H., 57; 8. C., 2 Am. Rep., 174; Taylor o. Miles, 5 Kans., 498; 8. C., 7 Am. Rep., 558; Powers v. Fuller, 830 Iowa, 476. The case of Smith v. Cleveland, 17 Wis., 556, contains some very general and unqualified language on this subject. That a deed may be made conclusive that the mere sile was according to law has been held in Towa. McCready ». Sexton, 29 Iowa, 356; Ware v. Little, 35 id., 234; Jeffrey v. Brokaw, id., 505. Under a provision that, before issuing a warrant for collection of a local assessment, the assessment shall be examined and certified as correct by street commis- sioners, and the attorney and counselor of the city, which certificate shall be conclusive evidence of regularity of the proceedings, it has been decided that the certiticate would only cover the formal proceedings. It does not deter- mine the fact that the assessment is made against the proper persons. Newell ». Wheeler, 48 N. Y., 486. : ? Bowman v. Middleton, 1 Bay, 252; Wilkinscn o. Leland, 2 Pet., 627, 657; CH. x.] CURING DEFECTS IN TAX PROCEEDINGS. 2a assumes to proceed upon evidence, then it 1s usurpation of author- ity, and for that reason void.!| The legislature must prescribe rules, but when questions arise between parties whether rules have been complied with, the judiciary is the appointed arbiter. 8. Special Curative Acts. A special act to cure defects in tax proceedings may undoubtedly be passed in some cases. In the margin a number of cases are mentioned where the power to cure defects in legal proceedings has been distinctly affirmed, and they are in point here.” There are some limitations of the power, and there is some embarrassment in considering them, because, though often al- luded to, they have never been very fully examined in the judi- Terrett v. Taylor, 9 Cranch, 43; Ervine’s Appeal, 16 Penn. St., 256, 266; Lam- bertson v. Hogan, 2 id, 22, 24. 'An act requiring the board of supervisors of a county to proceed to the apportionment and assessment of drain taxes, some portion of which had already been adjudged void, and the others palpably were so, was adjudged void on this ground in Butler ». Supervisors of Saginaw, 26 Mich., 22. The cases of Lewis v. Webb, 3 Greenl., 326; Lane v. Dorman, 3 Scam., 238, 242; Campbell ». Union Bank, 6 How., Miss., 625, 661; Ervine’s Appeal, 16 Penn. St., 256, 256; Cash, appellant, 6 Mich., 193; McDaniel». Correll, 19 T11., 226; Den- ny v. Mattoon, 2 Allen, 861; Budd ». State, 3 Humph, 483; Wally’s Heirs v. Kennedy, 2 Yerg., 554, and Piquet, appellant, 5 Pick., 64, are referred to as illustrating under different circumstances the distinction between legislative and judicial authority. See also Lambertson v. Hogan, 2 Penn. St., 22; Green- ough »v. Greenough, 11 id., 489, 494; Haley o. Philadelphia, 68 id., 4€; 5. C., 8 Am. Rep., 158, 155; Calhoun ». McLendon, 42 Geo., 405; Trustees o Bailey, 10 Fla., 238; People o. Frisbie, 26 Cal., 185; Sydnorv. Palmer, 32 Wis., 406, 409. ? Kearney v. Taylor, 15 How., 494; Strauch v. Shoemaker, 1 W. & 5., 166, 175; McCoy »v. Michew, 7 id., 386; Williston v. Colkett, 9 Penn. St., 838; Mont. gomery v. Meredith, 17 id., 42; Dunden »v. Snodgrass, 18 id., 151; Schenley ». Commonwealth, 36 id., 29; State v. Union, 33 N. J., 350; State o. Newark, 34 N. J., 236; Walter v. Bacon, 8 Mass., 468, 472; Patterson v. Philbrook, 9 id., 151,153; Locke v. Dane, 9 id., 360; Trustees v. McCaughey, 2 Ohio, N.S., 152; Butler v. Toledo, 5 id., 225; Cowgill ». Long, 15 Ill, 202; Mitchell o. Deeds, 49 id., 416; Boardman ». Beckwith, 18 Iowa, 292; Allen o. Archer, 49 Me., 346; People v. Seymour, 16 Cal., 332; People ». Todd, 28 id., 181; Boyce ». Sinclair, 3 Bush, 261; Davis v. State Bank, 7 Ind., 316; Lucas v, Tucker, {7 id., 41; Musselman v. Logansport, 29 id., 533; Brevoort ». Detroit, 24 Mich., 822; Pillsbury v. Auditor General, 26 id., 245; Tucker v. Justices, etc., 34 Geo., 370; Bellows ». Weeks, 41 Vt., 590. The legislature may validate a city ordi- nance go as to save the lien of a tax levied under it. Schenley v. Common- wealth 36 Penn. St., 29. 15 220 LAW OF TAXATION. jem, cial decisions, or even enumerated. Some of the restrictions that should attend the exercise of the power rest in policy only, and therefore address themselves to the legislative judgment and sense of right, but do not constitute limitations upon legislative power. One of these concerns the retroactive character of such legislation; there being a special liability to abuse in retrospect- ive legislation. The people in some states have felt this so strongly, that by their constitutions, retrospective laws have been expressly forbidden ;! but in the absence of any such express re- striction, there is nothing in the fact that curative statutes ope- rate retrospectively which can preclude their passage.” Another objection to such laws is, that they may be invidious and in- spired by favoritism, as they select for confirmation certain pro- ceedings — those of a single district, for instance —leaving all others untouched. But the defects may be in a single district only, and the need of legislation exclusively confined to it. Moreover, in different districts different regulations may have been politic originally, and if so, there can be no very conclusive. reason why they may not in effect be made by a retrospective sanction of the regulations actually applied. Cities always have rules of taxation differing in some particulars from those which prevail in towns; and, as in the case of police regulations, such rules must be allowed to vary, because in some cases there may be the most conclusive reasons why they should. But we should think the very limit of such legislation would be reached, when a particular assessment and the proceedings under it, in their ope- ration throughout the district, were confirmed. To discriminate in such proceedings, and say they shall be valid as to a particular purchaser, or against a particular person or estate taxed, would not be legislation, because it would establish no rule. Its pur- pose would be, while leaving in force the rule which defeats the 1 Provisions of this nature will be found in the constitutions of Louisiana New Hampshire, Missouri, Tennessee and Texas. In North Carolina retro- spective taxation of sales, purchases and other acts done, is forbidden. * State v. Newark, 27 N. J., 185; People 2. Supervisors of Ingham, 20 Mich., 95. Astatute which is but a mode of continuing or reviving a tax which might be supposed to have expired, and is in this sense retrospective, but which does not give a judicial construction to a former statute, is not uncon- stitutional. Stockdale o. The Insurance Co., 20 Wall., 328. CH. X.] CURING DEFECTS IN TAX PROCEEDINGS. 227 assessment, to exempt from its operation the case of a favored party. No department of the government possesses this author- ity. And all special confirmations of assessments and other pro- ceedings are forbidden in some states by the constitutional re- quirement that all laws shall be general. One very precise limit to the power to cure these proceedings is this: They cannot be cured when there was a lack of jurisdic- tion to take them. This isa rule applicable to every species of legal proceedings. Curative laws may heal irregularities in ac- tion, but they cannot cure a want of authority to act at all. What constitutes a want of jurisdiction is the difficult question in these cases. And in this regard the rules which apply to retro- spective and to prospective healing acts are the same. It is certain that whatever the legislature could not have au- thorized originally it cannot confirm. The unauthorized acts of individuals cannot confer upon the state a power it did not before possess.” Therefore no unconstitutional taxation can be confirmed, and none that entirely wants any essential element of taxation. Taxation without an assessment must consequently be incapable of confirmation, because apportionment is indispensable® And if 1Denny v. Mattoon, 2 Allen, 361 ; Nelson v. Rountree, 23 Wis., 367; Daniel v. McCorrell, 19 IIL, 226, 228; Richards v. Rote, 68 Penn. St., 248; State ». Doherty, 60 Me., 504; Griffin’s Ex’r v. Cunningham, 20 Grat., 31, 109, per Joynes, J.; Atchison, etc., R. R. Co. v. McQuilkin, 12 Kans., 301; People v. Goldtree, 44 Cal., 323; Abbott v. Lindenbower, 42 Mo., 162. * National Bank of Cleveland ». Iola, 9 Kans., 689, 696, per Dillon, J. ’ The Pennsylvania statute of 1815 declared that “ no inequality in the assess- ment or in the process or otherwise, shall be construed or taken to affect the title of the purchaser, but the same shall be declared to be good and legal.” Also that only “ when the owner or owners of lands sold for taxes shall have paid the taxes due on them previously to the sale, or within two years there- after shall have tendered the amount of the taxes and costs with twenty-five per centum additional, and the tender has been refused, shall he or they be entitled to recover the lands by due course of law, and that in no other case and on no other plea shall an action be sustained.” Notwithstanding this act it was decided that if an unseated lot was put on the seated list, and then transferred to the unseated without notice to the owner, a sale on this assess- ment would be void. Millikin v. Benedict, 8 Penn. St., 169, reviewing and ap- proving Lorimer v. McCall, 4 W.& §., 1383; and Harperv. Mechanics’ Bank, TW. & &., 214. In Commercial Bank v. Woodside, 14 Penn. St., 404, 409, Bell, J., says: “It is essential to the validity of every tax sale of lands that the subject of it should be assessed and returned, by some competent authority, 228 LAW OF TAXATION. [cH. x. the party has been illegally deprived of the opportunity to be heard in opposition to the assessment, the defect is jurisdictional.? And it is clear that a tax for an illegal purpose cannot be af- firmed ; the inability to authorize such a tax being perpetual.’ A tax discriminating against an individual could not be af- firmed; but a merely excessive levy for lawful purposes, appor tioned through the district, might be. It has often been decided that, where the only defect in a tax was the want of previous legislation, this might be supplied retrospectively. But a tax as unseated, or, where it has been rated as a seated tract or lot, that it be trans- ferred to the unseated list, by the commissioners of the county, or their au- thorized agents, with notice to the owner, if that be possible. This is the doctrine of all the cases in which the subject has been treated. They settle indisputably, that an omission, in this particular, is uncured by the act of 1815, which applies only to irregularities in the proceeding. Itis the assess- ment says Lorrimer v. McCall, 4 W., 351; 8.C., 4 W. & Serg., 183, which confers the power to sell in the same manner as a judgment on which an exe- cution is issued. Without this, there is no authority to divest the title of the owner, and if a tract be returned as seated it cannot be sold for taxes. To the same effect are the other adjudications, down to Milliken v. Benedict, 8 Barr, 169.” To the same effect is Stewart v. Trevor, 56 Penn. St., 874. That the want of an assessment is not an irregularity capable of being thus cured, see Steward v. Shoenfelt, 13 8. & R., 360; Bratton v. Mitchell, 1 W. & S., 310; Miller v. Hale, 26 Penn. St., 482: McReynolds v. Longenberger, 57 id., 18. That the want of a notice required by the constitution is an incurable defect, see Wilson ». McKenna, 52 IIL, 43. An assessment so defective as to be totally void cannot be cured by legislation. People v. Holliday, 25 Cal., 300. So with a want of valuation: People v. Savings Union, 31 id.,182. The confirma. tion by a city council of a void assessment cannot make it good. Doughty ». Hope, 3 Denio, 594. 1See Thames Manufacturing Co. v. Lothrop, 7 Conn., 550, which however is not an adjudication upon the point. Marsh v. Chestnut, 14 Ill. 223; Bil- lings v. Detton, 15 id., 218, are decisions which support the text. If one man’s land is taxed to another and sold, the sale is void and cannot be made other- wise by legislation. Abbott v. Lindenbower, 42 Mo., 162. And see Hume». Wainscott, 46 id., 145. Ifland is taxed by a city which is not within it, the tax cannot be validated though it is afterwards brought in. Atchison, etc., R. R. Co., v. McQuilkin, 12 Kans., 301. * Conway v. Cable, 37 II1., 82; Hart v. Henderson, 17 Mich. 218; Dean ». Borchsenius, 30 Wis., 285. 3In Grim v. School District, 57 Penn. St., 438, Sharswood, J., speaking of a pounty tax, says: “It has not been pretended, and could not be, that the legis. lature had not the power antecedent to authorize it. If so, they could cure any irregularity or want of authority in levying it by a retroactive law, even CH. X.] CURING DEFECTS IN TAX PROCEEDINGS. 229 sale that was made after a tax had been paid, would be void and incapable of confirmation, the officer losing all jurisdiction to proceed when payment has been made. The general rule has often been declared, that the legislature may validate, retrospectively, the proceedings which they might have authorized in advance. Therefore, if any directions of the stat- ute fail of observance, which are not so far of the essence of the thing to be done that they must be provided for in any statute on the subject, the legislature may retrospectively cure the defect. But there are probably some exceptions to this general rule. If the law has afforded the party an opportunity to be heard, when it might have been dispensed with, he has a right to rely upon this for his protection, and we should doubt the right of the legislature to take it away by retroactive law. There are some cases which, we think, recognize this right to a hearing which the law has given, as constituting an exception to the general right of the legislature to cure defects. And the reason of the exception will apply to all cases in which notice to the party, by publication or otherwise, has been provided for his protection. If this can be dispensed with by a healing act, the very provision for a notice for the party’s protection becomes a trap for his de- struction.? though thereby a right of action, which had beer vested in an individual, should be divested. It is within the principle of all the decisions of admit- ted authority.” And see Booth o. Woodbury, 32 Conn., 118; Crowell ». Hop- kinson, 45 N. H., 9; Lowell ». Oliver, 8 Allen, 247; Comer v. Folsom, 13 Minn., 219; State ». Demorest, 32 N. J., 528; Barbour ». Camden, 51 Me., 608; Board of Commissioners v. Bearss, 25 Ind., 110; Taylor ». Thompson, 42 I11., 9; Tucker v. Justices, 34 Geo., 370. 1 Reading v. Finney, 73 Penn. St., 467. 2In Miller v. Hale, 26 Penn. St., 432, in which it was decided that a sale of unseated lands, made before the expiration of a year from the time when the tax was due and unpaid, could not be validated by the statute curing irregu- larities, the following remarks are made by Woodward, J.: “If it be granted that this was a regular assessment, or that its irregularities were such as the curative provisions of the act of 1815 would remedy, it cannot be claimed that the taxes were ‘due and unpaid for the space of one year before’ the sale—a condition on which the jurisdiction of the treasurer is expressly limited by the first section of the act of 1815. It was said with great truth, by Judge Huston, in McCall v. Lorimer, 4 Watts, 351, 352, that taxes cannot be 230 LAW OF TAXATION. [cH. x. 4 and 5. Prospective Curative Laws. As already observed, a general healing statute is subject to the same rules as a special act for the like purpose, and requires no separate consideration. A statute providing that in proceedings thereafter to be taken, errors and irregularities shall not vitiate, comes also under the same restrictions upon legislative authority,’ though possibly it due unless they have been assessed. It is, indeed, the assessment that makes the tax. Itis the duty of all owners of unseated lands to return them for taxation, and to pay the taxes when assessed; but how is he to pay before they are assessed? Itis not for him to fix the valuation or the rate, but for the county commissioners; and, until they have performed their duty, he has no duty to perform. But, when the assessment has been made and the tax ascer- tained, there is no authority for proceeding to sell the land until the tax shall have remained unpaid a year. A sale short of that period is simply void. It is like a sale where there has been no assessment, which has often been de- clared insufficient to pass the title. Nor does the curative provision of the fourth section of the act of 1815 apply to such a sale, for that was intended to remedy irregularities in proceedings where jurisdiction had attached, not to confer jurisdiction in cases that were beyond the purview of the act. A sys- tem was provided by the legislature for enforcing the payment of taxes upon unseated lands, but until a tract has been assessed and the tax remained due and unpaid a year, it is not within the system nor subject to any of its provisions. If such were not the rule of decision, titles could be divested, without notice to the owner, whenever it suited the interest or caprice of the county officers to expose them to sale. A law, intending to promote public objects without a wanton sacrifice of private rights, would thus become an instrument of intolerable mischief, and the doubts of its constitutionality, which, with all its checks and balances, attended its enactment and early his- tory, would grow into a conviction that would sweep it from the statute book.” The cases of Milliken v. Benedict, 8 Penn. St., 169, and Commercial Bank v. Woodside, 14 id., 404, turn upon a failure to give a notice which, in ad- vance, might have been dispensed with. See also Prindle », Campbell, 9 Minn., 212; Dubuque v. Wooten, 28 Iowa, 571. But see People v. Seymour, 16 Cal., 382. 1A Minnesota tax law came under review in Prindle ». Campbell, 9 Minn., 212. Among other things it provided, that “all the instructions and direc- tions herein given for the assessing of lands and personal property, and the levying and collecting of taxes and assessments, shal] be deemed only direc- tory, and no error or informality in the proceedings of any of the officers en- trusted with the same, not affecting the substantial justice of the tax itself, shall vitiate, or in any wise affect the validity of the tax or assessment, or of the title conveyed under the sale for taxes under this chapter.” Held, that this does not embrace such errors and informalities as go to the jurisdiction of the CH. x.] CURING DEFECTS IN TAX PROCEEDINGS. 231 may go farther in some particulars, as the parties concerned would be apprised in advance that they were not to rely upon an exact compliance with the law, and would be under greater obligation to watch the proceedings. It is not an objection toa curative statute that it is passed while suits are pending, and was designed to de- feat the proceedings cured. The court must apply the statute officers charged with the performance of the duties imposed by the chapter, or the validity of their acts, but only such as do not substantially affect the mate- rial steps in the proceedings. Held, further, that a defective notice of sale was not cured by the act. An assessment in which the lands of two persons were assessed together under one aggregate assessment was in Hamilton ». Fond du Lac, 25 Wis., 490, 495, held void, and the defect not corrected by a statute tl.at an assessment shall be valid, “notwithstanding any omission, defect or irregu- larity” in the proceedings. Pazne J., says “ it would be clearly going beyond the scope and intent of this act to say that it made valid an assessment against one person of a tax upon another person’s lots. That is something more than amere omission, defect or irregularity in the proceedings.” Under the Pennsylvania statute the following irregularites held to be cured: A failure of the assessor to sign his roll. Townsen v. Wilson, 9 Penn. St., 270. A sale of seated land with unseated; the sale being good as to the pro- portion of the tax for which the unseated was chargeable, and the title passing after redemption expired. Mitchell o. Bratton, 5 W. &S., 451; Campbell ». Wilson, 1 Watts, 503; Harper ». McKeehan, 3 W. & 8., 288; McCord ». Ber- gautz, 7 Watts, 487; Dietrick v, Mason, 57 Penn. St., 40. Paying over surplus moneys instead of giving asurplus bond. Rogers v. Johnson, 67 id., 48, citing and relying upon Ash »v. Ashton, 3 W. &58., 510, and Iddings ». Cairns, 2 Grant’s Cas., 88. The statute does not cure the want of a deed. Hoffman »v. Bell, 61 Penn. St., 444. As tocuring irregularities in general, see Laird v. Heister, 24 id., 452; Cuttle ». Brockway, 24 id., 145; Heft 0. Gcphart, 65 id., 510, 518; Witherspoon v. Duncan, 4 Wall., 210, 217. A Massachusetts statute provided, that “if in the assessors’ list, or their warrant and list committed to the collector, there shall be any error in the name of any person taxed, the tax assessed to him may, notwitbstanding such error, be collected of the person intended to be taxed; provided he is taxable. and can be identified by the as- sessors.” This applied to the case of one taxed by his surname only. Tyler o. Hardwick, 6 Met., 470. See Sargeant o Bean, 7 Gray, 125, where this statute was further considered. And for cases under a law for like purpose in Ohio, see Welker ». Potter, 18 Ohio, N.8., 85; Upington v. Oviatt, 24 id. 232. The cases under the Iowa statute go farther, we think, than any others, in sanc- tioning broad powers in the legislature to cure defects. The following are referred to: Eldridge». Kuehl, 27 Iowa, 160; McCready ». Sexton, 29 id., 356; Hurley »v. Rowel, 31 id., 64; Rima v. Cowan, 31 id., 461; Thomas ». Stickle, 32 id.,'71; Henderson »v. Oliver, 32 id., 512; Bulkley v. Callanan, 82 id., 461; Ware v. Little, 35 id., 234; Jeffrey o. Brokaw, 35 id., 505; Genther vc. Fuller, 36 id., 604. 932 LAW OF TAXATION. [cH. x. in the pending suits. But such a statute cannot affect cases already passed into judgment.? 6. Reassessments. The method of curing defects by reassess- ment of the tax is less open to abuse than any that has hitherto been mentioned. Whether this is done by general law, which provides for all cases in which tax proceedings prove invalid, and authorizes the same tax to be imposed on the persons or property that should be charged therewith, by proceedings begun de novo, or assumes the form of a special law providing for the like reas- sessment in any particular case, it is scarcely possible that it should cause serious injustice beyond what is incident to all tax legislation. In the new proceedings the party concerned has all the opportunity to watch the various steps, and to be heard in review of them, that he has in any case, and he is precluded by nothing that has-taken place in the proceedings which proved abortive. The assessment is for the purpose merely of enforcing against him a duty which he was likely to evade, by reason of the nonfeasances or misfeasances of the officers whose duty it was to enforce it; and as the new proceeding gives him the same oppor- tunity of being heard that is given in other cases, and is con- ducted on principles that operate generally, he has no reasonable ground of complaint.§ The only cases in which hardship is likely 1See Cowgill v. Long, 15 IL, 202; Miller v. Graham, 17 Ohio, N.S., 1; State v. Squiers, 26 Iowa, 340; State » Norwood, 12 Md.,195; Hepburn v. Curts, 7 Watts, 300; Grim »v. School District, 51 Penn. St., 488. Certdorar¢ dismissed where a defect in the assessment was cured by special act after it was sued out. State v. Apgar, 31 N. J.,858. And see Newark ». State, 32 id., 458; Bristol o. Supervisors of Ingham, 20 Mich., 95; Ex parte McCardle, 7 Wall., 506; U.S. 0. Tyner, 11 id., 88. *Lambertson v. Hogan, 2 Penn. 8t., 22; People v. Supervisors of Saginaw, 26 Mich., 22. The legislature has no authority to reverse judgments directly o1 indirectly, and a legislative act legalizing a tax roll and healing defects therein will be so construed as not to affect an existing judgment for tresspass against the collector for seizing and selling property to satisfy the illegal tax. Moser ». White, 29 Mich., 59. 3A statute which, in case of an invalid or irregular tax, provides that it may be assessed by the assessors for the time being, ‘to the just amount to which, and upon the estate or to the person to whom such tax ought at first to have been assessed,” may be used to correct an error which extends to the entire list. Goodrich v. Lunenburg, 9 Gray, 38. It justifies a reassessment to the wife, of a tax wrongfully put to the husband and abated the preceding CH. X.] CURING DEFECTS IN TAX PROCEEDINGS. 233 to be inflicted by such legislation, are those in which a tax is re- assessed upon an estate which has changed hands since the tax should have been collected from it; but a proper examination of the records will, in most cases, lead the purchaser to a discovery of the liability, and enable him to provide against it.1 Where the tax itself was originally void by reason of having been levied for an illegal purpose, it is obviously impossible to breathe vital- ity into it by new proceedings.” If it was void because of want of legislation justifying it, it may be reassessed after proper legis- lation has been had.* If it was void because of a disregard of apportionment, or for any reason affecting a part of the list only, it may be reassessed with the proper corrections, where correc- tions are practicable.* And here it may be observed that a judi- cial decision against the first proceedings, if based upon errors and defects merely, and not upon the vicious nature of the tax itself, is not a bar to a reassessment. Such a decision merely points out the error, and the reassessment may be of all others the most proper and effectual way of correcting it.° Judicial corrections. Still another method of curing defects may be noticed. It is that which is sometimes provided by statutes allowing the parties concerned to have a judicial review of the proceedings on a proper application. We do not refer year. Hubbard ». Garfield, 102 Mass., 72: and see Overing ». Foote, 43 N. Y., 290. 1That the tax may be reassessed, notwithstanding such a change of title, see Tallman v. Janesville, 17 Wis., 71; Cross v, Milwaukee, 19 id., 509. That local assessments may be reassessed as well as general taxes, May ». Hol- dridge, 23 id., 93; Brevoort v. Detroit, 24 Mich., 822. And as to such laws in general, see further, Tweed ». Metcalf, 4 id., 579,590; State v. Newark, 34 N. J., 286; In re Van Antwerp, 56 N. Y., 261. A failure tu require the payment of a tax, or the decision of the auditor general that it is not payable, or the receipt of taxes for subsequent years, works no estoppel as against the state. Delaware Division Canal Co. » Commonwealth, 50 Penn. 8t., 399. 2 Dean v. Charlton, 23 Wis., 590; Dean :. orchsenius, 30 id., 236. 3 Mills v. Charlton, 29 Wis., 400. See /n re’ an Antwerp, 56 N. Y., 261. 4S8ee Dean v. Chariton, 27 Wis., 522; Cook v. Ipswich Local Board of Health, L. R., 6 Q. B, 451; Brevoort o. Detroit, 24 Mich., 322. 5 Dean ov. Charlton, 23 Wis., 590: compare Butler v. Supervisors of Saginaw, 26 Mich., 22. 6 For cases of this nature, see State v. Jersey City, 85 N. J., 381; Millers 234 LAW OF TAXATION. [cH. X. now to those cases in which proceedings are, un der general laws, referred to a court at some stage for confirmation, but to those in which the proceedings are attacked after their conclusion, and they are subjected to a judicial examination with a view to the correction of any errors, if correction shall be found practicable. Corrections by amendment. Of the errors that creep into the records of tax proceedings very many are merely clerical, or occur in consequence of a failure to put in proper form the evi- dence of transactions in themselves correct. Tax proceedings must stand by the record; and a failure to make the proper record may be as fatal as a failure to take the proceeding of which the record should have been made. If, however, the defect in a record is obviously clerical and nothing more; that is to say, if the record on its face sufficiently shows that the proper steps have in fact been taken, but there is some error on the part of the recording officer in putting the evi- dence upon the record in precise conformity to the law; some omission of a word, or the accidental employment of one word for another, or any similarerror which cannot mislead; the mistake may be overlooked, and the court, when the record becomes the subject of judicial investigation, may by intendment supply what is omitted, and correct what is erroneous, and then sustain the record as though the proper corrections had been made by the re- cording officer himself! But corrections cannot be made by in- tendment unless the necessary facts appear, either in the record Graham, 17 Ohio, N.§.,1. The statute in each case is quite peculiar. That of New Jersey forbade any collateral questioning of the proceedings in the case of certain assessments for local objects, but permitted them to be review- ed at any time on certiorari, or other proper proceeding in the supreme or cir. cuit court. 1Mr. Blackwell, speaking of Atkins ». Hinman, 2 Gilm., 437, 451, says: “Where in a collateral action, amendments of the tax record were permitted in the circuit court, the supreme court sustained them upon the ground that they were only corrections of clerical mistakes, and could prejudice no person’s rights; that they brought no new matter in the case, and gave no ad- ditional efficacy to the proceedings, but simply put them in stricter conform ity to the provisions of the statute. And it must be remembered that these amendments were of the judgment and precept under the Illinois statute of 1839, and the anterior proceeding on the files of the court, furnished the factg whereon the amendments were based.” Blackwell on Tax Titles, 399. CH. X.] CURING DEFECTS IN TAX PROCEEDINGS. 235 as actually made, or in the official documents on file from which the record should have been drawn up; the courts cannot imply the existenve of facts which are not recited any where in the official proceedings. Where the proceedings are conducted under the supervision of a court of record, or must go before such a court for confirma- tion, the facts which do not appear of record may be supplied by leave of the court, on a proper showing by affidavit! The author- ity of the court to permit such amendments, in order to make the record correspond to the facts, is probably not different from what it is to permit amendments in the exercise of its ordinary jurisdiction. If the facts to be supplied are such as affect individual cases on the roll, and may prejudice the parties, it would seem to be a mat- ter of right that the persons to be affected should have notice of an application to amend, and an opportunity to meet the showing. This should certainly be so if the application is made at a stage of the proceedings when the party, if the correction is made, will have no opportunity subsequently to raise any questions regard- ing the propriety or justice of the amendment. As an illustration, the case may be instanced of a judgment which is erroneous by reason of some defect which it is desired to supply by an amend- ment; in such case clearly the party against whom the judgment is to be validated should be allowed the privilege to contest the truth of that which it is proposed to put upon the record, and by which it is expected to bind him.? And the application ought to be a distinct proceeding for the purpose, and not be made ina suit brought to recover lands which have been sold under the judg- ment.2 On such an application counter affidavits would be ad- ' Young v. Thompson, 14 IIL, 380, 381. * See Dunham », Chicago, 55 II1., 357. 3 In an action of ejectment, to recover possession of land by virtue of a tax title, motion was made to amend the precept. Treat, Ch. J., says: “Tf suchan amendment is allowable, it should only be made upon a distinct application to the court for that purpose. The application should have no connection with any other case. A contrary course would introduce much confusion and inconvenience into judicial proceedings. A court engaged in the trial of acase ought not to be celayed and embarassed, by a motion to amend the record of another proceeding, which is but collaterally in question before it. Such an application might involve the necessity of bringing in other parties 236 LAW OF TAXATION, [cH. X. missible, and the court ought to insist upon a very clear showing of the facts, before giving its sanction to the introduction of any changes in a record not originally made under its supervision. There is a manifest difference between such a case and the correc- tion of errors in the record of proceedings which have been taken in the court itself, and of which the judges themselves may be pre- sumed to have some recollection. There are undoubtedly cases in which ministerial officers may correct errors without judicial permission ; and there are also some cases in which it would be apparent they could have no such power. Still other cases may be open to reasonable doubt. Where the defect consists merely in the failure to copy into a book of records the official document which evidences some legal transaction, the proper recording officer may correct it at any time, by making the required record. This may be done by the officer who should have done it in the first place, or it may be done by his successor in office. But where the document which should go upon record is defective, a case of more difficulty is presented. Many cases involving the right to make amendments have been considered in the state of New Hampshire, and it may be useful to notice them. In a very early case the validity of a town vote to raise money was in question, and the court, while the cause was on trial, per- mitted the record to be amended so as to show that the proper vote had been had. The amendment was made by the person who was town clerk at the time the meeting was held; and the case does not show that he was still in office. The authority to make the amendment was not much considered ; the judge con- tenting himself with saying that, ‘On this point we think that great care must be taken that amendments be made only accord- and different interests before the court.” Pitkin v. Yaw, 13 D1, 251, 258. In another case the samejudge, in speaking of’ a clefective judgment on a delin- quent tax list, says: “It may be that the circuit court, upon a proper app.i- cation, will allow the record to be so amended as to show when the judgment was rendered. But until the record is thus perfected, no title can be asserted under the proceedings.” Young v. Thompson, i4 IIL, 380, 881. Where the certificate of publication of the collector’s notice of his intended application for judgment for taxes is deficient, it may be amended by order of the court, upon notice being given to the opposite party, even after judgment. Dunham o. Chicago, 55 Ill., 357, citing Coughran v. Gutchens, 18 II1., 390. cit, X.] CURING DEFECTS IN TAX PROCEEDINGS. 237 ing to the fact; but we have no doubt that a record may be amended to conform to the truth.’! In the next case in which a like question was raised, the point was more fully considered. It was admitted that there were de- fects in the record of town proceedings, which would be fatal to a tax title then under consideration in a case on trial, unless they could be cured. The defects are summed up by the court, and the case disposed of as follows: “The return of the posting up of the warrant for the town meeting is insufficient. It does not state when it was posted up. Nor does it show that it was posted ata public place. It does not appear that Thirston, who was chosen collector, took the oath of office prescribed by law. And there are defects in the return of the collector, to which excep- tions have been taken. “The tenants move that these proceedings may be amended. It has been already settled that the records of towns may be amended to conform to the truth of the fact.2 The amendment must be made by the person who was in office at the time? “It seems probable that in the prior cases where amendments have been allowed, the officers who were permitted to make them were not in office at the time; if they were, it must have been under subsequent election; and the right to have the amendment made cannot depend upon the question whether the officer has again been elected. The form in which such amendments are to be made, has never yet been settled. It would be very danger- ous to sanction alterations of the books themselves, by erasures and interlineations. And we are of opinion that they should be made only upon evidence showing the truth of the facts, and then by drawing out in form the amendment which the facts au- thorize. The amendment, with the order under which it is made, may then be annexed to the books where the original is recorded, so that the whole matter will appear ; and in furnishing copies the original and amendment should both be furnished. “But it is objected, on the part of the demandant, that no 1 Bishop ». Cone, 8 N. H., 513, 516, per Richardson, Ch. J., who cites, as au- thority, Welles v. Battelle, 11 Mass., 477, and Taylor o. Henry, 2 Pick., 897. ° Citing Bishop ». Cone, 3 N. H., 518; Welles v. Battelle, 11 Mass., 477; Car- digan v. Page, 6 N. H., 182. 8 Taylor v. Henry, 2 Pick., 397. 238 LAW OF TAXATION. [cH. x. amendment ought to be made to her prejudice. That when she purchased, these defects in the vendue title were apparent, and that she must be presumed to have purchased with knowledge that the title was defective. “The general rule is that amendments of records are made with saving of the rights of third persons acquired since the existence of the defect. Chamberlain v. Crane, 4 N. H. 116; Bowman »v. Stark, 6 id., 459. “To apply this rule, however, to all cases of defects in sales of lands for taxes, would, in effect, be very nearly denyinga right to amend; as the owner of the land sold would attempt to defeat any amendment, by conveying to some friend, who would bring a suit in his behalf. It would, at least, be necessary to confine the ap- plication of the principle to cases where the land had been actu- ally conveyed bona fide. “ But instances might exist, when the purchaser, although he might not have found upon the records all that was necessary to make a formal and valid record, might have been well assured, from what he did find, that all that was necessary had in fact been done. “ or instance, in relation to the two first defects in the records in this case—in the return of the warning of the meeting, and in the record of the oath of the collector—although these records are not sufficient in point of law, they lead the mind of any one to the belief that what was requisite was probably done. And in such cases, where the fact appears to be stated, but not ina formal manner, there is no reason way he who purchases should not be subjected to the same liability to have the amendment made, and the record put in form, that his grantor would have been, had he attempted to recover the land. “There are cases where, although all that is required may not appear of record, it may be left to the jury to presume that all that was required was done. As in Bishop v. Cone —although the application of the principle in that case may, perhaps, have been questionable, on account of the transactions having been so recent, that, if the truth would have warranted it, an amendment might have been made. Whether that principle could be applied against a subsequent purchaser, it is not necessary to determine. But where what is necessary, is, although not formally stated, so CH. X.] CURING DEFECTS IN TAX PROCEEDINGS. 239 far set down as to lead to a belief that a correct record might have been made, there seems to be no reason why a purchaser, who has access to the records, should not take it subject to aright to have the record put in form, if the truth will warrant it, “When, on the other hand, nothing appezrs upon the record in relation to any particular fact necessary to make out a title, nor is any thing set down from which it is naturally to be inferred that the fact existed, a subsequent bona fide purchaser ought not to have his title defeated by supplying a record instead of amend- ing arecord.”?! Whe subsequent cases in New Hampshire are in accord with these, and fully sustain them in their conclusions.? It is said that “it has never been held that such amendments could be allowed by any other tribunal than one of the superior courts.” And yet unless some statute confers upon them the authority, it is not 1Gibson 2. Bailey, 9 N. H., 168, 176, per Parker, Ch. J. The judge thereup- on proceeds to say that “upon these principles, if the facts will warrant it” the various defects which he points out in detail may be amended. Buthe adds, “ we must first have evidence to show that these amendménts may be made with truth.” * On the trial of Bean ». Thompson, 19 N. H., 290, involving the validity of a tax voted at a town meeting, it appearing that there was no return upon the warrant calling the meeting, the selectmen who were in office when it was held were permitted, on motion, to make the proper return. Woods, J., says: “Leave is often granted to officers, whose returns of their doings, or records of public transactions, are, by law, made evidence, to correct errors or to supply omissions, to conform to the truth. The interest which the public have in the correctness and fullness of the record, and the responsibility of the officer him- self for the accuracy of his own doings, are primarily a good cause for grant- ing such indulgences tending to the promotion of reasonable objects. And it has never been deemed an objection to the amendment of a return or record, that proceedings were pending which might be affected by it, except that where rights or claims bona fide have intervened, amendments that would en- tirely defeat them have been in some instances denied.” And he refers to Gibson ». Bailey, supra, as laying down the proper rule on the subject. In Scammon »v. Scammon, 28 N. H., 419, 429, Bishop ». Cone and Gibson »v. Bailey, are again referred to with approval. In Cass ». Bellows, 31 id., 501, they also are approved, but the proper person to make the corrections then necessary was dead, and consequently they could not be made. See further Prescott 7. Hawkins, 12id.,19; Pearce v. Richardson, 87 id., 306, 309; Jaquith v. Putney, 48 id., 188. 3 Pierce v. Richardson, 87 N. H., 306, 311, per Bell, J. 240 LAW OF TAXATION. (en x very clear whence they derive it, nor how a township officer, or one who has been such, can, in this collateral way, have authority con- ferred upon him to do anything which, without such authorization, would be an illegal act. An early case in Massachusetts, often quoted in New Hamp- shire, involved the validity of a correction by a town clerk, of his own motion, to cure a defect in an entry made by himself. The amendment was sustained ; the court expressing the opinion that the clerk might have made it at any time while he held the office, even though under a subsequent election.! But it is held in the same state that the successor of the clerk can have no authority to make corrections in records of transactions which were had before he came into office.* In Vermont it has been said that “the practice of amending and altering the records, when a controversy has arisen, to meet a. particular case, or in consequence of a decision of the court, cannot be defended.”*® In a later case the right to amend, under proper restrictions, was asserted. ‘ While it is obvious,” say the court “some limits must be fixed to such amendments, we do not fee prepared to say, as matter of law, that they are never allowable. If the officer making the record were out of office, or were a party to the suit, as in Hadley v. Chamberlin, 11 Vt., 618, and in many other cases, it might be improper. * * But we think in gen eral it must be regarded as the right of the clerk of a town, or other municipal corporation, while having the custody of the records, to make any record according to the facts. And we do not perceive that his having been out of office and restored again, could deprive him of that right. But even the officer could not alter or amend a record upon the testimony of third persons ordi- narily, and ought not to do it upon his own recollection, unless in very obvious cases of omission or error, of which the present might fairly be regarded as one probably. Such amendments 1 Welles v. Battelle, 11 Mass., 477, 481, per Parker, Ch. J. *Taylor v. Henry, 2 Pick., 397. The defect consisted in the failure to record the adjournment of the town meeting at which the new clerk was chosen. 3 Williams, Ch. J., in Hadley v. Chamberlin, 11 Vt., 618. The amendment was made in open court on the trial of a cause involving the sufficiency of the record. One peculiarity of the case was that the officer making the amend. ment was a party to the suit, aad made it for his own protection. CH. x.] CURING DEFECTS IN TAX PROCEEDINGS. 241 should ordinarily be made by the original documents or min- utes.” } It is observable of this case that the amendment, which con- sisted in the signing of the record of warning of a school district meeting, was made by the clerk on the trial of a cause, where the record was in question, and without the permission of the court. From the case it appears that “the court decided that they had no power over the clerk, and could give him no directions, but said that in the opinion of the court the clerk had a right, if he chose to do so, to amend the record in that particular, if such amendment would be according to the truth; but that the clerk must judge for himself whether he would or should make such amendment, and the court added that if such amendment was made, the record, in the opinion of the court, would be admissi- ble.” This remark distinguishes the case broadly from those in New Hampshire, and leaves the responsibility of all amendments with the officer himself. In New York, in a case in which the affidavit of the assessors, attached to the assessment roll, was found to be defective, the opinion was expressed that it would be competent for the board of supervisors, when in session for the purposes of a review of the rolls, ‘‘to send for the assessors of any one town to come before them, and supply omissions, and make the necessary affidavits, where the omission occurred through accident or mistake.”* This opinion appears entirely reasonable; and it would seem that the officer who, through any carelessness or error, has executed, or even delivered, a defective process or return, ought to be at lib- erty to correct it at any time afterwards, before any decisive action has been taken, under the process or document amended, and while, therefore, there is no possibility that the error can have prejudiced any one. Of course the amendment could not be made by one who ws no longer in office, as under such circumstances it would not be an official act.? Neither could it be made under circumstances 1 Redfield, Ch. J., in Mott v. Reynolds, 27 Vt., 206, 208. ? Parish v. Golden, 35 N. Y., 462, 465, per Morgan, J. 3 Shaw, Ch. J., in Hartwell ¢. Littleton, 18 Pick., 229, 282. “The first ques- tion is whether the town clerk of a former year, who does not now hold that 16 242 LAW OF TAXATION. (cH. x. where it could operate unjustly upon the rights of parties. Thus, it has been held in Vermont, that if a tax sale is fatally defective by reason of the failure of the town clerk to certify in his record that the advertisements were published as required by law, the cierk cannot make it good by amending his record after the time for redeeming from the sale has expired. The reason is, that the owner, relying upon the record, may have omitted to redeem, in- asmuch as his land has not been legally sold? But until the rights of third parties have intervened, or conclusive action has been taken in reliance upon the records or documents, as repre- senting in their imperfect state the actual facts, it is not perceived why a mistake once made should be crystalized and preserved as an instrument for the destruction of all that shall follow, in- stead of being corrected, that legal proceedings may be supported upon it. The question to some extent is one of public policy ; and while undoubtedly it is wise to hold strictly to the rule, that records shall not be tampered with to the injury of parties con- cerned, there is no principle or reason of public policy which should preclude the correction of errors before rights have be- come fixed, but many considerations which support it. No amendment can make valid a tax sale that was void for want of a proper description of the land in the assessment and subsequent proceedings.” And if fatal errors occur in tax con- office, can be allowed to come in and amend the record of a former year, made whilst he was in that office; and the court are of opinion that he can- not. It has been held in Welles ov. Battelle, 11 Mass., 477, that where a clerk continues in office several years, by repeated annual elections, he may amend the record of a former year, notwithstanding an election has intervened, and though he does not hold the office under the same appointment. But we think there is an obvious distinction in principle between the two cases. In the latter the clerk not only knows the fact, in relation to which the amend- ment is to be made, which is a circumstance common to both, but he still enjoys the confidence of the town, is by their vote entrusted with the custody of their records, and is held responsible for their purity and correctness under the sanction of his official oath, and all such other guards as the law hag thought it necessary to prescribe in the case of a clerk actually in office. The jntervening election is substantially a continuance of the clerk in the same office.” And see School District o. Atherton, 12 Met., 112. 1 Judevine o. Jackson, 18 Vt., 470, approved and followed in Langdon ». Poor, 20 id., 18. Compare Jaquith c. Putney, 48 N. H., 188. 2 Roberts c. Chan Lin Pen, 23 Cal., 259. cH. x] CURING DEFECTS IN TAX PROCEEDINGS. 2438 veyances. they can neither be amended by the officer, nor coz- rected by motion in a court of law. Te proper triouna! for tha: purpose is a cour: of equity. A court of law, where tae defect- ive conveyance was in question, might order the case continued to give opportunity for relief in equity, but could not do more} An oficer to w2om return bas been made by another, nas no authority to amend such return,” but a correction in an immate- rial point can give no one a ground cf complaint® 1 Annan ¢, Baker, 49 N. H., 161, 171. per Vesmith, J., citing Prescott -. Hawkins, 12 id, 19. 2 Blight c. Banks, 6 T. B. Monr., 192, 206; Blight o. Atwell, 7 id., 264, 263. See Bellows c. Weeks, 41 Vt, 590, 600; Jones c. Tiffin, 24 Iowa, 190. ? Case r. Dean, 16 Mich.12. As i) amendments permitted by statute in Towa, see Jones zc. Tiffin, 24 Iowa, 190; Conway zc. Younkin, 28 id., 228. 244 LAW OF TAXATION. (cH. XI. CHAPTER XI. THE VOTING OF THE TAX. Necessity for legislative authority. There must be distinct legislative authority for every tax that is levied. This is a prin- ciple that admits of no exception whatever,’ unless one is made by the constitution of the state, operating to that extent as a restric- tion upon what would otherwise be the soverign legislative power over this subject. And in the several states the principle applies to every tax, whether state or municipal. But while the legislature must originate the power to tax, and prescribe the rules under which taxes are to be levied, the determi- nation of the amount, even of a state tax, may be referred to some other auihority. When a state auditing board is provided for by the constitution of the state, the allowances of the board will per- haps be made conclusive, and be required to go into the general tax levy for the year.” And in any case there seems to be no objection in principle to legislation under which the salaries of state officers, the general expenses of state government, and other demands against the state, which are audited in accordance with general legislation, shall be provided for by a levy made under general rules, without the necessity of a special act prescribing the amount of the particular tax. No legislative power is dele- gated by such an arrangement. The amount of the local taxes is determined in various ways: 1. In some cases they are fixed by the legislature or under its direction ; as will be shownin a subsequent chapter. 2. In some 1See Norris v. Russel, 5 Cal., 249; Litchfield v. Vernon, 41 N. Y., 123; Allen v. Peoria, etc. R. R. Co.. 44 Il., 85; Bangs v. Snow, 1 Mass., 181; Stetson o Kempton, 18 id., 272; Lisbon ». Bath, 21 N.H.,319; Daily 0. Swope, 47 Miss, 367; Columbia v. Guest, 3 Lead, 413; Cruikshanks ». Charleston, 1 McCord, 360; State ». Charleston, 2 Speers, 623; Simmons 2. Wilson, 66 N. C., 336; Vanover v. Justices, 27 Geo., 354; Lott o. Ross, 38 Ala. 156; Richmond » Daniel, 14 Grat., 385; Bullock ». Curry, 2 Met. Ky., 171; Bright ». Mc Cullough, 27 Ind., 223. 2 See People v. Supervisors of Queens, 1 Hill, 195. CH. X1.] THE VOTING OF THE TAX. 245 cases they are determined by local boards, which exercise a qguast legislative authority ; such as the boards of supervisors of many states, the county courts or boards of justices of others, the com- mon councils of cities and boroughs, the village boards of villages, the township boards or selectmen of towns, and the corresponding boards in other corporate bodies. 8. Many taxes are required to be voted by popular assemblages composed of all the voters of the municipality to be taxed, or, in some instances, of certain classes of the voters, supposed to be specially interested in the tax. Itis consistent with the practice of early days that this method shall be adopted in all districts whose population is not too great to render it impracticable; and we find it general in school districts, and to a large extent also in towns, villages and even some small cities. But in the larger districts like counties, as well as in the cities generally, the authority is of necessity con- fided to representatives of the people, who are usually chosen by popular ballot. Voting taxes in popular assemblages. A popular assem- blage for any legai purpose must be regularly convened in such manner as the law may have prescribed. The coming together of a majority of the people of a municipality, or even of all the people, at a time and in a manner not provided for by law, and the voting upon the levy of a tax, will have no legal force or val- idity whatever. In levying taxes, or in exercising any other function of government, the local community are wielding a part of the sovereign power of the state, but only with the state’s per- mission, and under such conditions, restrictions and regulations as the state has prescribed. One of these invariably is, that the power shall be exercised in an orderly manner, at a meeting assembled after due notice, and conducted according to legal forms, in order that there may be full opportunity for reflection, consultation and deliberation upon the important work to be done. Nothing short of this will insure deliberative meetings, or prevent popular gath- erings degenerating into mobs, and thereby defeating the purposes for which they are authorized. Corporate meetings may be appointed by general statute which names a certain day in the year on which they are to be held. In this manner provision is usually made for annual town meetings 246 LAW OF TAXATION. [cH. XI. and school district meetings. Of such statutes every citizen takes notice at his peril, and a meeting assembled at the time and place appointed is a lawful meeting. This is probably the rule even where the notice of the meeting, which some statutes require to be given by publication, has been omitted; the notice by publi- cation being only additional to the notice by statute, and being provided for by way of additional precaution, toremind the people of the statutory provision which they are nevertheless bound to take notice of, whether the publication takes place or not. The right to hold the meeting comes from the statute, not from the pub- lished notice! The same statute will commonly specify the sub- jects which may be considered at such meetings, and will limit ‘any power to levy taxes which is permitted to be exercised.? All special meetings must be regularly called as the statute may have prescribed. The following are customary regulations: That the meeting shall be called by the officers of the municipality, either on their own motion or on the application of a certain num- ber of the voters or freeholders; that it shall be notified either by a warning® delivered or its contents stated to the several voters, or by notice published or posted in a manner particularly indi- cated by the statute; and that the subjects to be considered at the meeting shall be specified in the warning or notice. With all these provisions there must be careful compliance, and the meet- ing when held must confine itself strictly to the subjects indicated in the notice or warning.‘ 1 People v. Cowles, 13 N. Y., 850; People ». Brenham, 8 Cal., 477; State ». Jones, 19 Ind., 356; People ». Hartwell, 12 Mich., 508; Dishon ». Smith, 10 Towa, 212; State ». Orvis, 20 Wis., 2385; State o. Gatze, 22 id., 263. See Marchant v. Langworthy, 6 Hill, 646.. 2 As to the necessity of a vote of the electors before a school tax can be levied in Arkansas, see County Court v. Robinson, 27 Ark., 116. And in Cal- ifornia, see People v. Castro, 39 Cal., 65. ? Difference between “calling” a meeting and “warning” it: see Stone 2. School District, 8 Cush., 592; Rideout ». School District, 1 Allen, 232. And see as to the call, George v. School District, 6 Met., 497. #That a tax can only be voted at a meeting legally warned, see Bowen v. King, 34 Vt. 156. As to what is a sufficient warning, see Allen v. Burlington, 45 id.,202. Where the warrant for a meeting specified as the object “to adopt such measures in relation to their ministerial concerns as may then and there seem expedient, and to act thereon as they see cause,” held sufficient to sup. cH. X21.) THE VOTING OF THE TAX. 247 In voting taxes all the local bodies act ina political capacity, and their action is to be favorably construed, and not to be over- ruled or set aside by judicial or any other authority, so long as they keep within the limits of the power bestowed upon them. But their action in voting taxes should always appear of record. ‘‘ Every essential proceeding in the course of a levy of taxes,” it is said in one case, “must appear in some written and permanent form in the record of the bodies authorized to act upon them. Such a thing as a parol levy of taxes is not legally possible under port a vote of money in fulfillment of a contract between the minister and a committee, under which he was to discontinue the pastoral relation. Black- burn v. Walpole, 9 Pick., 97. A warrant “To choose a district committee and to act on other business that may be thought necessary,” does not authorize pre- scribing a method for calling subsequent meetings by the clerk, and therefore a subsequent meeting called by the clerk cannot legally vote taxes. Little o. Merrill, 10 Pick.,548. A warning fora school meeting which stated the object to be “to take inte consideration the expediency of raising for the use of schooling for the year ensuing,” held sufficient. A vote was taken “to raise one cent and five mills on the dollar” on the list for the year, without nam- ing any time of payment. Held to be sufficiently definite, and the tax would be payable on demand, or within a reasonable time. Bartlett o. Kinsley, 15 Conn., 327. As to the effect of custom on the construction of votes of town meetings, see Freeland ». Hastings, 10 Allen, 570, 578-9. An article in the warning of a school meeting, to see whether the district will have a school the ensuing winter, and to see what method the district will take to pay the expenses of said school, is sufficient to authorize the district to vote a tax upon the grand list to defray the expenses of the school. Chandler v. Bradish, 23 Vt., 416. A warning to see if a town will vote a tax for the purpose of paying a bounty does not authorize a vote to borrow money for that purpose. Atwood v. Lincoln, 44 Vt., 332. A school district tax voted ata meeting not legally called is void. Haines v. School District, 41 Me., 246; Rideout ». School Dis- trict, 1 Allen, 2382; People ». Castro, 39 Cal., 65. A tax voted for a purpose not specified in the notice of special meeting is void. Holt’s Appeal 5 R. I., 603. Construction of particular notices; Williams o. Larkin, 3 Denio, 114; Torrey ». Milbury, 21 Pick., 64. A tax voted at a meeting warned without naming the hour of the meeting in the warrant is void, and it will not justify the collec- tor in an action of trespass against him for taking property to satisfy the tax. Sherwin vo. Bugbee, 16 Vt., 489. The return of a freeholder upon a warrant from the selectmen for warning a mecting of the inhabitants of a school dis- trict, that he had warned them according to law, was held to be conclusive in an action by one of the inhabitants against the assessors for assessing a tax on him which had been voted atsuch a meeting. Saxton v. Nimms, 14 Mass., 314. Under astatute which provided that “ every town meeting shall be held in pursuance of a warrant under the hands of the selectmen,” a warrant signed by one only was held void, and atax voted at a mecting held pursuant thereto 248 LAW OF TAXATION. [cH. XI. the laws.”! And in another, in which the action of a convention of town delegates in voting a county tax was in question, “a record of the doings of such a convention is the only evidence to show a county tax duly granted.”? But if the record is lost, the was invalid, and one who had paid it might recover back of the town. Rey- nolds v. New Salem, 6 Met., 340. As to the effect of fraudulent neglect to give notice or giving misleading notice, see People v. Allen, 6 Wend., 486; Peo. ple v. Peck, 11 id., 604; Marchant v. Laneworthy, 6 Hill, 646; Randallv. Smith, 1 Denio, 214. That in proving notice of a meeting it is not sufficent to state in the affidavit or return that the notice was given “in accordance with the act,” but it should state the facts, see State v. Hardcastle, 26 N. J., 143; Hard- castle v. State, 27 id., 551; Cardigan v. Page, 6 N. H., 182; Tuttle vo. Cary, 7 Greenl., 426: compare People v, Highway Commissioners, 14 Mich., 528. But see Briggs v. Murdock, 18 Pick., 305; Houghton ». Davenport, 23 id., 285; Bucks- port v. Spofford, 12 Me., 487. Where the defendants in an action of trespass justi- fied as assessors, and showed by the records of the town that they were duly elected at a town meeting legally warned, they were held not bound to go be- hind the records to show that the proceedings of the warning officer had been regular. Thayer. Stearns, 1 Pick., 109. In a vote of a school district laying a tax for its purposes, it is not essential to its validity that the particular object for which it was laid should be specified. West School District v. Merrils, 12 Conn., 436. A school house having been erected under invalid votes, the district may lawfully vote a tax to pay for it. Greenbanks v. Boutwell, 43 Vt., 207. Asto such meetings in general, their regularity and powers, see Blackburn 2. Walpole, 9 Pick., 97; Perry ». Dover, 12 id., 206; Little v. Merril, 10 id., 543; Williams ». School District, 21 id., 75; School District». Atherton, 12 Met., 105; Cardigan o. Page, 6 N. H., 182; Nelson v. Pierce, id.., 194; Brewster 0. Hyde, 7 id., 206; Lis- bon ». Bath, 21id., 319; Schoff v. Gould, 52 id., 512; Hunt. School District, 14 Vt., 300; Pratt o. Swanton, 15 id. 147; Sherwin v. Bugbee, 17 id., 337; Wyley v. Nelson, 44 id., 404; Greenbanks v. Boutwell, 43 id., 207; Allen o. Burling- ton, 45 id., 202; Lander v. School District, 33 Me., 239; Jordan v. School Dis- trict, 38 id., 164; Belfast, etc., R. R. Co. v. Brooks, 60 id., 568; State v. Hardeas- tle, 26 N. J., 148; Hardcastle v. State, 27 id., 551. The officers or the inhabi- tants merely treating the proceedings of an invalid meeting as valid does not make them so. Pratt 0. Swanton, 15 Vt., 147. 1 Campbell, J., in Moser o. White, 29 Mich., 59, 60. See also appeal of Pow- ers, 29 id., 504: Doe v. McQuilkin, 8 Blackf., 335. 2 Richardson, J., in Cardigan v. Page, 6 N. H., 182,191. See Farrar ». Fes. senden, 39 id., 268, 277. Fowler, J., says: “The records of taxes were properly received to prove the taxation which, being matter of record, could be proved in no other way, unless the loss of the records were first shown.” In Gear. hart o. Dixon, 1 Penn. St., 224, 228, it is said of the record of a school tax, that, “ where it was defective, it might be explained or supplied by parol tes- timony. * * The law does not require school directors to keep a record of their proceedings, although it is better that they should do so.” Compare Moor »v. Newfield, 4 Greenl., 44. CH. XI] THE VOTING OF THE TAX. 249 contents are subject to parol proof as in other cases! And any informalities are to be overlooked and disregarded if the substan- tial requisites of a vote appear? It is always to be assumed that all these inferior municipalities have decided wisely and well upon the matters of discretion submitted to them, and it is in- competent anywhere to attack the validity of their action, upon the ground that the facts and circumstances which were laid before, and which surrounded them, did not call for the conclusion which they reached. From this broad statement the only excep- tion that need be made, is that which rests upon the power of legislative supervision and control, when they refuse or neglect to perform a duty to the state, or when they vote local taxes which seem to the legislature impolitic and oppressive. A learned and able court has spoken very clearly and pointedly concerning the absence of power in the judicial tribunals to enter- tain appeals from the municipal bodies, in the exercise of their discretionary power to tax. The case was one in which the attempt was made to enjoin school directors from the levy of a tax regularly voted. ‘ No such appeal lies, for none is given by law. Most of our tax laws entitle the citizen to a hearing before he is obliged to pay; not to a judicial hearing, indeed, but to an 1 Farrar v. Fessenden, 39 N. H., 268; Quinby v. North American, etc., Co., 2 Heiskell, 596; Irwin o. Miller, 23 Ill., 401. 2 As to what isa sufficient vote in raising a town tax, see Blodgett ». Hol- brook, 39 Vt., 336, 339. As to the particularity required in specifying the purpose of the tax, Peck, J., says, in that case “all that is necessary in this respect is that a vote of a town raising money should indicate, in general terms, the purpose or object for which the money is raised; and if that pur- pose or object is such as comes within the scope of the powers of the town, it is sufficient. It is not necessary to the validi-y of the vote that it should state the particular facts which show tlie present necessity of the town for the use of the money. The object specified being within the powers of the town, it is to be intended that the town has judged properly as to the occasion and necessity for the exercise of the power in the particular instance.” See, also, as to the sufficiency of a vote for a school tax, Adams ». Hyde, 27 Vt., 221; West 0. Whittaker, 37 Iowa, 598. A failure of the officers to sign the record of the board of supervisors, does not vitiate a tax levied by it. Lacey v. Davis, 4 Mich, 140; People v. Eureka, ete., Co., 48 Cal., 143; Martin v. Cole, 88 Iowa, 141. The record cannot be attacked collaterally, and its recitals shown to be false. Taylor v. Henry, 2 Pick., 397; Manning ». Fifth Parish in Gloucester 6 id., 6; Hartwell ». Littleton, 13 id., 229; Edd». Wilson, 43 Vt., 362; Bissel v. Jeffersonville, 24 How., 287. 250 LAW OF TAXATION. [CH. XL appeal to some special tribunal, generally the county commis- sioners; but the school law gives no such appeal. This is the reason why the ear of the courts should be open to well founded complaints on the part of the citizen; but where he has no irregularity, no neglect of duty, no excess of authority to com- plain of, nothing, indeed, but an indiscreet use of clearly granted discretion, he will vex the judicial ear in vain, for the judicial arm can redress no such wrong. The power of taxation, alto- gether legislative, and in no degree judicial, is committed by the legislature, in the matter of schools, to the directors of school districts. If the directors refuse to perform their duties, the court can compel them. If they transcend their powers, the court can re- strain them. If they misjudge their power, the court can correct them. Butif they exercise their unquestionable powers unwisely, there is no-judicial remedy.”! This isa clear and strong state- ment of a wise and salutary general principle. Restrictions upon municipal taxation. Upon the power of municipal corporations to tax, there are a number of restrictions which may be stated as follows: 1. Those imposed by the constitution of the United States, No state can confer upon its municipalities a power to tax, which ' Woodward, J., in Wharton v. School Directors, 42 Penn. St., 358, 364. See, to the same effect, Williams o. School District, 21 Pick., 75, 82; Petition of Powers, 52 Mo., 218. In each of these cases it was held, that after a school district had properly decided upon the erection of a school house, the deter- mination was final, and that no inquiry could be entered upon regarding the necessity for the building. So in Jenkins v. Andover, 103 Mass., 94, 104, “where the attempt was to enjoin a town from purchasing ground for a ceme- tery, on the ground that it was unnecessary, and that the expense would be disproportionate and unreasonable, Chapman, C.J., after showing that the language of the statute, authorizing towns to provide burial grounds, is very broad, and leaves them to judge what sum shall be raised, what quantity of Jand shall be appropriated for the purpose, and how it shall be fenced, laid out, arranged and managed, without any specified restriction, denies the juris- diction of the court to control their discretion in these particulars, and de- clares that “the exercise of their discretion extends to matters of taste,” in the matter of making the burial grounds beautiful and attractive, instead of unsightly and repulsive. That courts cannot restrict or restrain a power con- ferred to grant licenses for revenue, see Kemper o. Louisville, 7 Bush, 599; citing Mason ». Lancaster, 4 id. 406. As to the conclusiveness of a school district vote, see Eddy o. Wilson, 43 Vt., 362. CH. x1 | THE VOTING OF THE TAX. 251 by the charter of general government is forbidden to itself. The limitations imposed upon state authority are imposed with equal emphasis upon every subordinate instrument of the state ma- chinery.? 2. Those imposed by the constitution of the state. And here it is not a matter of course, that restrictions imposed on the state are restrictions on its corporations also. Some restrictions are sometimes imposed on the state itself as a corporation, which are not intended to apply to its municipal creations, while ‘others declare a general policy, and are limitations upon the state power to tax either generally or by delegation. It is clearly within the province of the people, when they agree upon a con- stitution, to limit the state as they think proper, and to give, in some particulars, a larger liberty to the municipal corporations if that shall be thought wise. The question upon these limitations is one of construction merely.” But except as these express restrictions limit the state power specially, the state can delegate to none of the subordinate bodies an authority which, if no such body existed, it could not itself exercise. 8. Those which inhere in the nature of taxation itself, These have been sufficiently dwelt upon in another place. 4. Those which inhere in local taxation specially, and confine it to purposes and objects which are local. 5. Those which the state attaches, as conditions or regulations, to the exercise of the authority it gives. One of the most important purposes to be subserved by formal 1 Stuyvesant 0. New York, 7 Cow., 588; Illinois Conference Female College ». Cooper, 25 Ill., 148; Haywood ». Savannah, 12 Geo., 404; O’Donnell ov. Bai. ley, 24 Miss., 386. 2See Slack v. Railroad Co., 13 B. Monr., 1, 16; Dubuque County ». Railroad Co., 4 Greene (Iowa), 1; Clapp v. Cedar County, 5 Iowa, 15; State v. Wapello County, 13 Iowa, 888; Clark v. Janesville, 10 Wis., 186; Bushnell v. Beloit, 10 id., 195; Prettyman 0. Supervisors, 19 IIl., 406; Robertson ». Rockford, 21 id., 451; Johnson ». Stark County, 24 id., 75; Perkins o. Lewis, 24 id., 208; But- ler v. Dunham, 27 id., 474; People v. Chicago, 51 id., 17, 84; Richmond ». Scott, 48 Ind., 568; People v. Supervisor, etc., 16 Mich., 254; Bay City 0. State Treasurer, 28 id., 449,504. An exemption from “public taxes,” held not to be an exemption from taxation for municipal purposes Morgan o. Cree, 4¢@ Vt., 773; S.C., 14 Am. Rep., 640. 3 See Chapter ITI. 252 LAW OF TAXATION. [CH. XL written constitutions is the protection of minorities against oppressive action on the part of majorities. Such oppressive action in the case of the local bodies might consist in the levy of enormous taxes, or the incurring of enormous debts, under the influence of temporary excitements and passions, for purposes which cooler reflection would condemn. By some state constitu- tions it is expressly made the duty of the legislature, in conferring local powers of taxation, to impose restrictions on the power in order to prevent its abuse. Such a provision is addressed to the discretion of the legislature, who will impose such and such only as are deemed advisable. In the absence of such provisions in conferring the power to tax, it is restricted only as is above shown.” But in thus authorizing local taxation, the state does not deprive itself of the general power to control. There is nothing in the nature of a contract in such a delegation,’ and what the state gives it may at any time take away. It may attach new con- ‘People v. Mahaney, 13 Mich., 481, 487. In this case it was decided, that the power of a police board, to determine what sums should be raised for their purposes, was limited; the statute confining the power to the necessary police expenses. And see Paine v. Spratley, 5 Kans., 525; Bank of Rome ». Rome, 18 N. Y.,88; Hill o. Higdon, 5 Ohio, N. 8., 248, 248; Northern Ind. R. R. Co. v. Connelly, 10 id., 159, 165; Maloy v. Marietta, 11 id., 686. A provis- ion requiring the legislature to restrict the power of municipal taxation is complied with, in an act for a special street assessment, by limiting it to an assessment to the middle of the block upon adjacent property. Hines ». Leavenworth, 3 Kans., 186. *The state may give complete power to tax all the subjects of taxation within the municipality. Wingate v. Sluder, 6 Jones L., 552; Durach’s Ap- peal, 62 Penn. St., 491; Cheaney v. Hooser, 9 B. Monr., 380, 889; Augusta ». National Bank, 47 Geo., 562. Authority to assess “all taxable property” embraces all taxable at the time the authority is given, and all made taxable by subsequent legislation. Buffalo v. La Couteulx, 15 N. Y., 451. A limitation of taxes to a certain percentage of the assessed valuation is enlarged by im- plication when the legislature authorize the creation of any particular debt, to the extent that may be necessary to meet the demand. Commonwealth »v. Commissioners of Alleghany County, 40 Penn. St., 848. Compare United States ». Burlington, 2 Am. Law Reg., N. §., 374. 8'Where a state has no power to lay a certain tax, or to contract a certain debt, but it nevertheless assumes to do so, such a law is void, and cannot be treated as a contract between the state and those who have claims for which the law undertakes to provide payment. Ramsey ». Heger, Sup. Ct. Ill, 1874, 6 Chicago Legal News, 318. CH. XL] THE VOTING OF THE TAX. 253 ditions, it may impose new restrictions or make new regulations.! These are matters of legislative discretion. Even after a tax had been collected, if, in the opinion of the legislature, the purpose was unwise and impolitic, it would doubtless have power to interpose and forbid the money being appropriated to it. This would seem to be a legitimate exercise of the general power of control and supervision which the legislature retains over all the inferior entities which have been created by it for political pur- poses. But the most efficient restriction of all, for practical pur- poses, is that rule of law which requires all municipal organ- izations or boards to show their grant of any authority they may assume to exercise. Towns, it has been said—and the remark applies to all such organizations— are corporations of limited powers; they cannot vote and assess money upon the inhabitants for all purposes indiscriminately, but must be confined to the established powers of towns, as settled by positive enactment or by well defined and ancient usage They cannot, therefore, tax 1A general authority given by a city charter to tax property for its pur- poses does not preclude the state making exemptions within the city after- wards. Richmonc ». Richmond and Danville R. R. Co., 21 Grat., 604. If city boundaries are extended after the time for the annual assessment has passed, it is competent to provide for an assessment for the current year of the prop- erty newly added. Swift». Newport, 7 Bush, 37. Compare Waldron v. Lee, 5 Pick., 323 ; Jackman v. School District, 5 Gray, 418. The right to tax may be taken away by the legislature even after the tax has been levied. Augusta ». North, 57 Me., 392. 2 Shaw, Ch. J.. in Cushing ». Newburyport, 10 Met., 508, 510. There is a very valuable statement in this case of the power of towns in respect to schools, and its history. For a history of the legislation of Michigan terri- tory and state on the same subject, and the powers of the districts, see Stuart ». School District, 30 Mich., 69. As to the right to establish free schools in a particular district of a state by a statute which leaves the final decision to the voters of the district, see Bull v. Read, 13 Grat., 78. The right to refer such questions to the voters of the locality was also affirmed in Slack v. Railroad, 13. B. Monr., 1, 9, 28; Stein v. Mobile, 24 Ala., 591, and numerous other cases. The legislature may, in its dis- cretion, create independent school districts without the assent of the resid- ents, and authorize a board chosen by its voters to make an annual levy for the erection of buildings and the support of schools therein. (The most plausible objections to the act seemed to be, that it took from the towns authority which properly pertained to them, and that the district was com- posed of parts of two townships, and the constitution required township officers to be chosen by “the voters thereof.”) Kuhn ». Board of Education, 254 LAW OF TAXATION. [cH. XL except for the very purpose allowed by law, and in the manner and under the conditions prescribed by law.’ Conditions precedent. In particular cases taxes have been authorized to be levied only after they have been petitioned for by a certain number of taxpayers. This is a condition precedent to any tax.? In Iowa it has been decided that if the township trustees have passed upon the sufficiency of such a petition, and declared it sufficient and levied the tax, this is conclusive in all collateral inquiries; the decision being on a matter within their jurisdiction. But in New York the decisions were otherwise.* 4 W. Va., 499. On the creation of a new district by the union of two, the property of both becomes its property. It has no power to bargain and pay over to the old district the value of its school house, or to levy a tax for the purpose. Bacon v. School District, 97 Mass., 421. Where a district is divided after a tax is assessed, the inhabitants set off remain liable for its portion of the tax. Waldron ». Lee, 5 Pick., 823. That a school district tax is not within a statute which limits the amount of a tax for town and county pur- poses, see Taft ». Wood, 14 Pick., 362; Goodrich v. Lunenburg, 9 Gray, 38, 40; Blickensderfer v. School Directors, 20 Penn. St., 38. 1A tax voted to build a school house on a site not legally designated is in- valid; that being a condition precedent. Marble ». McKenney, 60 Me., 332. Where the statute required assessors, before assessing any school district tax, to determine in which district the lands of persons residing out of the town should be taxed, and to certify their determination to the town clerk, who was to record the same: Held, that an assessment without complying with this requirement was invalid, and an inhabitant of the district might avail himself of the defect. The determination, it will be seen, was really as to what should be the limits of the district. Taft 1. Wood, 14 Pick., 362. Sec also Rawson v. School District, 100 Mass., 1384. By statute a town was not to be redistricted oftener than once in ten yeurs, “so as to change the taxation of lands of proprietors.” A tax levied in a new district established in viola. tion of this provision, is void. Gustin v. School District, 10 Gray, 85. See Holmes v. Baker, 16 id., 259. 2 Where an extraordinary tax was authorized on the recommendation of two-thirds of the grand jury, held, that this was a condition precedent, and the adjournment of the grand jury without action upon it would not justify the tax. Cooper v. Rowe, 42 Geo., 229. 3Ryan v. Varga, 87 Iowa, 78; West v. Whitaker, id., 598. 4Starin 0. Genoa, 23 N. Y., 489; People v. Mead, 24 id.,114, Samev. Same, 86 id., 224. In the subsequent case of People v. Brown, 55 N. Y., 180, the same point was somewhat considered, but it became unnecessary to decide it, as the collector, who was defending a proceeding to compel him to pay over moneys he had collected, was held incompetent to raise the question. See post, chapter XX. CH. XI] THE VOTING OF THE TAX. 255 In some cases taxes are allowed to be voted by taxpayers only, while taxes in general are voted by the whole body of the elec- tors. Such legislation is admissible, and the submission must conform to it.) When taxes are voted by a city council or other local body, a common and very useful provision is one that the yeas and nays shall be entered on the journal, so that no member shall escape his proper share of responsibility for the vote.? Without such a provision, it would be necessary only that the record should show a quorum present and a resolution adopted.® Repeal or modification of local powers. The power to vote local taxes is at all times subject to the legislative modification and control.4 The general law may modify their powers even when they were conferred by special charter, if the terms of the general law are sufficiently comprehensive for the purpose.® But 1In such cases, if the question is submitted to the whole body of the voters, the vote is void. Bullock v. Curry, 2 Met., Ky.,171. It has been de- cided in North Carolina that the legislature may authorize less than a major- ity to vote taxes. State ». Woodside, 9 Ired., 496; Same v. Same, 8 id., 104, 106. As to what is a majority vote, see Stanford v. Prentice, 28 Wis., 358. ?Such a provision is mandatory. Dillon’s Mun. Corp., § 229, and cases cited. Compare Tobin v. Morgan, 70 Penn. St., 229, and Steckert v. Hast Sag- inaw, 22 Mich., 104. 3 Where the record stated that A., B., C., and others, justices of the county court, were present, held not enough, as it did not affirmatively appear that a majority was present. Dudley’s Ex’rs v. Oliver, 5 Ired., 227. Compare State ». McIntosh, 7 id., 68; Insurance Co. v. Sortwell, 8 Allen, 217; Lacey v. Da- vis, 4 Mich., 140. 4Richmond ». Richmond, etc., R. R. Co., 21 Grat., 604; Tucker v. The Jus- tices, 34 Ga., 370. A repeal of a law by which a corporation was authorized on vote of its electors to levy a tax in aid of a public work, takes away the power, even though a favorable vote has already been had. Covington, ete., R. RB. Co., ». Kenton Co. Court, 12 B. Monr., 144, 150. (The vote was in favor of levying the tax, but the rate had not been determined upon at the time of the repeal, and as this was a condition precedent, and had not been followed, the county court had no power to levy the tax, at least none before determin- ing the rate.) 5A provision in avillage charter that the village taxes shall be assessed upon the freeholders and inhabitants “ according to law,” means, unless oth- erwise explained, according to the general law of the state. Ontario Bank ». Bunnell, 10 Wend., 186, 194, per Welson, Ch. J. Whenever a tax is authorized by law, and no special provision is made as to the source from which the rev- enue is to be derived, the law implies that the tax shall be levied upon all 256 LAW OF TAXATION. (CH. XI where the power to tax is conferred by special charters, it is not usual to modify them in this manner, and in doubtful cases we should say the presumption was against an intent to do so." Exhausting authority. The taxing power once conferred is presumptively continuous, and to be exercised again and again as often as may be required by the exigencies of government and as often as may be consistent with the act of delegation. But custom has much to do with the construction of such powers, and sometimes a single exercise must be deemed to exhaust the power for the time being, when the custom is to tax but once within a certain period of time; as for instance, within the year. And this is the general custom in the case of local taxes® But an abortive attempt to make an assessment does not exhaust the power, and.if no other obstacle exists, the officers may disregard the futile action and proceed anew.* property subject to general taxation, and collected as other taxes. Hale v. Ke- nosha, 29 Wis., 599; State v. Bremond, 38 Tex., 116. As to the effect of gen- eral legislation upon special charters, see House 2. State, 41 Miss., 787; S. C., 2 Withrow’s Corp. Cas., 563. 'In Ohio it was decided that special acts, giving authority to municipal corporations to levy special taxes in aid of railroads, were not repealed by a constitutional provision forbidding such legislation. Cass v. Dillon, 2 Ohio, N.5., 607; Fosdick v. Perrysburg, 14 id., 472. In Iowa it was held that where a special law limits the power of a municipal corporation to levy taxes, a subsequent general law will not give power beyond the prior limitation. Clarke »v. Davenport, 14 Towa, 494. Contra, Butz ». Muscatine, 8 Wall., 575. See United States v. Burlington, 2 Am. Law Reg., N.8., 394. A grant of pow- er to a municipal corporation to lay atax for a particular purpose is a rep2al, pro tanto, of all prior statutory restrictions on the power of taxation. Cow- monwealth ». Common Council of Pittsburgh, 34 Penn. St., 496. ‘See Municipality 2. Dunn, 10 La. An., 57; Williams v. Detroit, 2 Mich., 560. 3A school board having power to levy a tax not exceeding one per cent. in one year, held that when they ordered a tax, though below the maximum, they had exhausted their power for the year. Oliver v. Carsner, 39 Texas, 396. So in Oregon it has been decided that after one assessment of all the taxable property has been made and returned, and the tax levied thereon, there is no power to make a new assessment in order to reach property which has been brought within the district since the regular assessment. Oregon Steam Nav. Co. v. Portland, 2 Ore., 81. But an omission of the county court to exact license taxes when making the general levy does not preclude requiring them afterwards. State v. Maguire, 52 Mo., 420. ‘Himmelman 0. Cofran, 36 Cal., 411, citing Pond o. Negus, 8 Mass., 230; CH. X1.] TIE VOTING OF THE TAX. 257 Strict execution ef authority. It is also a familiar rule that in the execution of the power to tax, the municipalities must con- fine themselves closely within the power conferred Many illus- trations of this rule will be given further on, as the successive steps, which are to be taken to render taxation effectual, are enu- merated and explained. Libby v. Burnham, 15 Mass., 144; Bangor v. Lancy, 21 Me., 472. On the general subject see also Woodruff o. Fisher, 17 Barb., 224; Howell v. Buffalo, 15 N. Y., 512; People v. Haines, 49 id., 587; Lappin 7. Nemaha County, 6 Kans., 403. 1That the provisions of the statute must be strictly pursued, see Henderson ». Baltimore, 8 Md., 352; Sharp v. Johnson, 4 Hill, 92; State ». Davenport, 12 Iowa, 385; In re Trufler, 44 Barb., 46; Howell». Buffalo, 15 N. Y., 512; Bennett v. Buffalo, 17 id., 383; Smith v. Davis, 30 Cal., 536; Taylor o. Downer, 31 id., 480; Smith v. Cofran, 34 id. 310; Montgomery ». State, 38 Ala., 162; St. Joseph v, Anthony, 80 Mo., 587; McComb ». Bell, 2 Minn., 295; State o. Jersey City, 26 N. J., 444; Municipality No. 1 v. Millandon, 12 La. An., 769; Kyle o. Malin, 8 Ind., 34; Chicago ». Wright, 32 Ill., 192; Scammon ». Chicago, 40 id., 146; Doughty ». Hope, 3 Denio, 594; Tallman v, White, 2. N. Y., 66; Cruger o. Dougherty, 43 id., 107. 17 258 LAW OF TAXATION, [CH. XII. CHAPTER XII. THE ASSESSMENT OF PROPERTY FOR TAXATION. When taxes have been properly decided upon, an assessment may become an indispensable proceeding in the establishment of any individual charge against either person or property. This is always requisite when the taxes are to be levied in proportion to an estimate, either of values, of benefits or the results of busi- ness. Itis of an assessment by the value of property that we shall speak in this place. It is proper to remark, that it is usual to provide by law that one assessment shall be made use of for the levy of both state and local taxes, for the year or other period for which assessments are made, instead of directing a separate assessment for each des- cription of tax. This is a matter as well of economy as of con- venience, as one assessment answers all purposes. Independent assessments are sometimes provided for in the case of school taxes and some others, but they raise no peculiar questions, and require no special consideration. An assessment, strictly speaking, is an official estimate of the sums which are to constitute the basis of an apportionment of a tax between the individual subjects of taxation within the district. As the word is more commonly employed, an assessment consists in the two processes of listing the persons, property, etc., to be taxed, and of estimating the sums which are to be the guide in an appor- tionment of the tax between them. When this listing and esti- mate are completed in such form as the law may have prescribed, nothing remains to be done in order to determine the individual liability, but the mere arithmetical process of dividing the sum to be raised among the several subjects of taxation, in proportion to the amounts which they are respectively assessed. Sometimes the word assessment is used as implying the completed tax list; that is to say, the list of persons or property to be taxed, with the esti- mates with which they are chargeable, and the tax duly appor- tioned and extended upon it; but this employment of the word CH. XII.] THE ASSESSMENT OF PROPERTY FOR TAXATION. 259 is unusual except in the cases in which the levy is apportioned by benefits ; and in those cases the act of determining the amount of the benefits is of itself, under most statutes, a determination of the Sara hability, and its entry upon the roll is an extension of the tax.t Necessity for an assessment, Of the necessity of an assess- ment, no question can be made. Taxes by valuation cannot be apportioned without it. Moreover, it is the first step in the pro- ceedings against individual subjects of taxation, and is the foun- dation of all which follow it. Without an assessment they have . no support, and are nullities.? It is, therefore, not only indispens- ‘In Pennsylvania it is said “by the terms of the law the taxable or his property is assessed when the assessor has returned his list of property and valuation thereupon, and the commissioners have apportioned the rate per cent. upon the several townships.” Wells ». Smyth, 55 Penn. St., 159, 162. * A tax levied without any list and valuation is void. Thurston 2. Little, 3 Mass., 429; Thayer o. Stearns, 1 Pick., 482; McCall v. Lorimer, 4 Watts, 351; Miller v. Hale, 26 Penn. St., 482; Matter of Nichols, 54 N. Y., 62. a decision that is in har- ‘See State v, Bell, 1 Phil. (N. C.), 76; Winnimisset Co. 0. Chelsea, 6 Cush., 477; Donovan ». Insurance Co., 30 Md., 155; State 0. Welch, 28 Mo., 600; State v. Leavell, 3 Blackf., 117; State o. Hamilton, 5 Ind., 310; Louisville, etc., R. R. Co. v. State, 25 id., 177. * See Porter v. County Commissioners, 5 Gray, 865; Otis Company ». Ware, 8id., 509; State » Apgar, 31 N. J., 858; State ». Board of Equalization, 7 Nev., 83. 5In Minnesota it has been decided that where the constitution requires all taxation to be by value, it is incompetent to provide by law for increasing the assessed valuation by a sum to be added as a penalty for not handing in a list. McCormick 2. Fitch, 14 Minn., 252. And see State v. Allen, 2 McCord, 55, A contrary ruling in Indiana was made in the case of Boyer ».Jones, 14 Ind., 854, where a party had refused to list property which he claimed was not tax- able, and was subjected to a penalty of fifty per cent. on the valuation, for the refusal. *Some statutes make provision for enforcing by suit the penalties for neg- lect to hand in lists. See Drexel ». Commonwealth, 46 Penn. St., 31. * Alexander o. Commonwealth, 1 Bibb, 515; McCall v. The Justices, 1 id., 516; Olds 1 Commonwealth, 3 A. K. Marsh., 465; Chiles». Commonwealth, 4 J.J. Marsh., 577. The point was made in Drexel v. Commonwealth, 46 Penn. St., 31, but not “decided, In Connecticut it is held that a list sufficient as to the personal estate cannot be rejected as to that because not sufficient as to the realty. New Canaan v. Hoyt, 23 Conn..148. In Alabama a statute requiring CH. XII.] THE ASSESSMENT OF PROPERTY FOR TAXATION. 2638 mony with the general rules of construction. But when the con- struction is clear, they are generally enforced. 'The Massachusetts statute (1835) took away all right to abatement of an excessive as- sessment on appeal to the county commissioners, when the appel- lant had failed to bring in a list of his estate to the assessors, un- less he could show good cause for the failure; and also when he had failed to make oath to the truth of the list if required by the assessors to do so. Under this statute it was held that the asses- sors could not waive the bringing in of the list; that corporations as well as natural persons must comply with it; that an exhibi- tion to the assessors of a plan of the tax payer’s real estate, or re- ferring them to the list of a preceding year, would not be a com- pliance with the statute ; that the list must be handed in before the tax is actually assessed, and that if not handed in, the tax- payer submits himself to the ‘doom ” of the assessors.® It has also been held on a construction of the statute, that no abatement would be made before a list was brought in, though a sufficient excuse for not bringing it in at the proper time was shown.* Handing in alist which, by mistake of the lister’s rights, every person in the state “ who is liable to pay taxes ” to render “ a list of his taxable property ” to the assessors, and providing that if he does not, they may call at his residence for a list of his taxables or for the amount of taxes due from him, held applicable to one liable only to a poll tax. Carter v. Mercer, 9 Ala., 556. As to what is a sufficient listing in Vermont, see Blodgett ». Hol brook, 89 Vt., 836. 1Winnimisset Co., v. Chelsea, 6 Cush., 477. And see Otis Co. v. Ware, 8 Gray, 509. The statute required the assessors to notify the inhabitants, at the town meeting or otherwise, to bring in lists. It was held in the first of these cases that if a failure to give notice was relied upon, it devolved on the tax payer to show it. Corporations may be required to furnish for taxation lists of their stockholders to all the local authorities where they severally reside. Donovan v. Insurance Co., 80 Md., 155. 2 Porter ». County Commissioners, 5 Gray, 865; Otis Co. v. Ware, 8 id., 809. 3 Lincoln ». Worcester, 8 Cush., 55, 63. But where a list was not brought in until after the time limited for it had expired, but the delay was chargeable to the assesors themselves, who expressly told the party’s agent nothing should be lost by the delay, it was held that the right to apply for an abatement was not lost. Lowell v. County Commissioners, 3 Allen, 546. 4 Charlestown v. County Commissioners, 101 Mass., 87. In abating a tax which has been paid, the county commissioners have no right to allow interest ; the statute not providing for it, Lowell . County Commissioners, 3 Allen, 550, Nor costs, for the same reason. Same v. Same, id, 556. Successors of asses- 264 LAW OF TAXATION. [CH. X11 is made to embrace property not liable to taxation, will not estop him from claiming an abatement as to such exempt property ; there being no reason of justice or public policy why it should.* But while this is true, it is also true that the tax payer cannot complain of any mere irregularity in the action of the assessors in- to which they have been led by an error or imperfection in his own list, not affecting his substantial rights? These references will perhaps sufficiently indicate the views which have been taken by the courts of statutes of this nature. sors who have levied a tax may abate it if application therefor is made within the statutory time. Hibbard v. Garfield, 102 Mass., 72; Carleton o. Ashburn- ham, 102 id., 348. One who has handed in no list and is overtaxed, cannot pay his tax, and then recover back on showing a mistake in the assessors: a mistake not rendering the tax illegal. Lott . Hubbard, 44 Ala., 598. 1 Charlestown 2. County Commissioners, 109 Mass., 270, citing Dunnell Manuf. Co. ». Pawtucket, 7 Gray, 277, where the point was substantially the same. In Illinois it has been decided that if one voluntarily lists for taxation corporate stocks which are not taxable, and they are taxed accordingly, he cannot complain, as itis his own fault. Republic Life Ins. Co. v. Pollak, 7 Chicago Legal News, 357, Sup. Ct. Ill, 1875. 2 As where, the party’s agent being called upon for a list, he furnished it, but omitted one parcel of land which was taxed as nonresident in consequence. Kinsworthy v. Mitchell, 21 Ark., 145. To the same effect is Nelson »v. Pierce, 6 N. H., 194. The tax payer giving an erroneous description of his lands to the assessor is estopped from complaining of it. Hubbard ». Windsor, 15 Mich., 146. 3 Where a list is required to be given in under oath, a refusal to swear to a list is a refusal to give it in. Lee ». Commonwealth, 6 Dana,311. The person from whom a list is required under a penalty cannot excuse himself by show- ing as to an article he should have listed (a billiard table), that another person had listed it. Olds ». Commonwealth, 3 A. K. Marsh., 465. Where one ex- cused himself from making a list, saying it was unnecessary, held to be a re- fusal. State v. Parker, 33 N.J., 192. See State » Bishop, 34 id., 45; State o. Parker, 34 id., 49; State ». McChesney, 34 id., 63. The list is not conclusive on the assessors. Thompson v. Tinkcom, 15 Minn., 295. Butit has been said they ought to adopt the valuation of the lister in the absence of any evidence of its incorrectness. People v. Reddy, 43 Barb., 589; People v. Assessors of Albany, 40 N. Y., 154: though they are not liable for any bona fide exercise of of their power in thisregard. Vose v. Willard, 47 Barb., 820; Bell o. Pierce, 48id.,51; Stearns v. Miller, 25 Vt., 20; Wilson v. Marsh, 34 id., 352. But for a failure to perform ministerial duties to the lister’s prejudice the officers may be liable. Kellogg v. Higgins, 11 id., 240; Fairbanks ». Kittrédge, 24 id., 9. In Nevada, a tax payer who fails to hand in his list, is allowed no standing before the board of equalization. State v. Board of Equalization, 7 Nev., $3. In New Jersey he loses his right to appeal. State v. Apgar, 31 N. J., 358. An CH. XIL.] THE ASSESSMENT OF PROPERTY FOR TAXATION. 265 Right to a hearing. The summary nature of tax proceedings has been remarked upon. Every inhabitant of the state is liable to have a demand established against him on the judgment of others regarding the sum which he should justly and equitably contribute to the public revenues. Every property owner in the state, whether an inhabitant or not, is liable to have a lien in like manner estab- lished against his property. Moreover, the persons who make the assessment lighten the burden upon themselves in proportion as they increase it upon others. In such proceedings, therefore, it must be a matter of the utmost importance to the person as- sessed that he should have some opportunity to be heard before the charge is fully established against him; and it would seem to be a dictate of strict justice that the law should make reasonable provision to secure him as far as may be against partiality, malice or oppression. The obligation to make provision for this purpose is recognized by the statutes of the several states. By some the person assessed is allowed to reduce what he claims to be an excessive assessment by his own oath; by others he is allowed an appeal to some board of review, and in all, perhaps, some method is provided by which he may have a hearing before the assessment becomes fixed and final against him. Thus the statutes have taken precautions against oppression and injustice, and perhaps made all the provis- ion that is needful, if their directions are fully observed. It is too often the case, however, that statutory provisions are not strictly observed, and that either the public or individuals must suffer in consequence. The question presented may then be, whether the provisions which have not been obeyed are man- datory to the officers, or it may arise on the provisions of some curative statute which proposes to heal the defects. In substance the question will be, whether the right to be heard in tax cases is a right which is indefeasible early statute in South Carolina provided that a “ tax of ten thousand dollars” should be imposed upon every person keeping open an office for the sale of lottery tickets, and that “it shall be the duty of the tax collector in the dis- trict where such lottery offices are opened, in default of the person or persons keeping such offices to return the same and pay the tax imposed by this law, to issue his execution as in other cases of defaulters.” The court held this, though called a tax, to be really a penalty, which it was not competent to au- thorize the collector to impose. State . Allen, 2 McCord, 55, 266 LAW OF TAXATION. [cH. X11. We should say that notice of proceedings in such cases, and an opportunity for a hearing of some description, were matters of con- stitutional right. It has been customary to provide for them as a part of what is “due process of law” for these cases; and it is not to be assumed that constitutional provisions, carefully framed for the protection of property, were intended or could be construed to sanction legislation under which officers might secretly assess one for any amount in their discretion, without giving him an op- portunity to contest the justice of the assessment. It has often been very pointedly and emphatically declared that it is contrary to the first principles of justice that one shouldbe condemned un- heard ; and it has also been justly observed of taxing officers, that “it would be a dangerous precedent to hold that any absolute power resides in them to tax as they may choose without giving any notice to the owner. It is a power liable to great abuse,” and it might safely have been added, itis a power that under such circum- stances would be certain to be abused. ‘The general principles of law applicable to such tribunals oppose the exercise of any such power.” * This being the case, it is not to be supposed that the legislature in any doubtful language has undertaken to confer it. All reasonable presumptions in construction should favor jus- tice and right. It is not customary to provide that the tax payer shall be heard before the assessment is made, but a hearing is given afterwards, either before the assessors themselves, or before some court or board of review. And of the meeting of that court or board the tax payer must in some manner be informed ; either by personal notice, or by some general notice which is reasonably certain to reach him, or, — which is equivalent — by some general law which fixes the time and place of meeting, and of which he must take notice. The last is a common method of enabling him to be heard. 1“ Notice,” it is said by Agnew, J.,in Philadelphia v. Miller, 49 Penn. St. 440, 448, “or at least the means of knowledge, is an essential element of every just proceeding which affects rights of persons or property.” And see Dar. ling v. Gunn, 50 I1., 424; State o. Drake, 33 N.J., 194; Butler 0. Supervisors ct Saginaw, 26 Mich., 22. ? Baldwin, J., in Patten v. Green, 13 Cal., 325,329. See also Cleghorn 2, Pos- tlewaite, 43 Ill. 428. 8There being no jurisdiction to assess a personal tax upon a nonresident, CH. XII.} THE ASSESSMENT OF PROPERTY FOR TAXATION. 267 All these provisions, being of vital importance to the tax pay- er, must be regarded as compulsory, and a compliance with them as conditions precedent to any further step tocharge him with a tax.! When they fix a certain time for the meeting of a board of re- view, and the board fails to meet; or a certain time for the return and filing of the assessment for inspection before'the meeting of the board, and it is not filed, whereby opportunity for inspection is lost; the tax proceedings must be regarded as having failed to become effectual, because of the failure of the officers properly to follow them up as required by law. No argument can be admis- sible in such a case which proposes the acceptance of something else as a substitute for the securities the statute has provided. To substitute anything would require legislation; and even legis- lation for the purpose would be of doubtful validity if it failed to provide what would fully accomplish the same purpose. Such regulations for the protection of individual rights are reasonable, and they are demanded by justice and general convenience. On general principles they must be regarded as mandatory,” and a strict observance of their provisions held to be essential.® he is not chargeable with constructive notice of the action of assessors, and is under no obligation to appear before them. St. Paul v. Merritt, 7 Minn., 258. The determination of the tax to be paid by a corporation is not void because of being made without notice, where the statute provides for a subsequent notice — which was duly given— and an appeal. Commonwealth v. Runk, 26 Penn. St., 235. 1Thames Manuf. Co. v. Lathrop, 7 Conn., 550, 555; Lowell 0. Wentworth, 6 Cush., 221; Kansas Pacific R. R. Co. o. Russell, 8 Kans., 558. Thames Manuf. Co. »v. Lathrop, 7 Conn., 550, 555; Marsh ». Chestnut, 14 Ill, 223; Cleghorn ». Postlewait, 43 id., 428; Nashville o. Weiser, 54 id., 245; Mix v. People, Sup. Court, Ill., June term, 1874; Philips v. Stevens Point, 29 Wis., 594; Walker v. Chapman, 22 Ala., 116; Insurance Co. o. Yard, 17 Penn. St., 831, 388; French v. Edwards, 13 Wall., 506,511. In the case in 7 Conn., 550, the assessment was held void because an abstract thereof which the law required should be filed by the first of December, was actually not filed till the 20th, though this was ten days before the meeting of the board of review. That the tax payer must take notice of the general law fixing the time and place of hearing, see Methodist Pr. Church v. Baltimore, 6 Gill, 391; O'Neal ». Bridge Co., 18 Md., 1, 26. 8 When one has by city charter the right to appear “and be heard” betore the common council, it is not competent for the council to limit the objections to such as may be made in writing. State». Jersey City, 25 N.J., 309. But 268 LAW OF TAXATION. [cH XII. The courts have been particularly careful to see that revisory tax tribunals! did not change assessments to the prejudice of tax- payers who, under the circumstances, had no reason to look for or anticipate any such change. If the tax-payer himself does not appeal, he has a right to suppose that the assessment against him will be allowed to stand as made. If authority is conferred upon the board of review to change assessments under any specified circumstances, the existence of those circumstances is a condition precedent to their action. An illustration is afforded by a case in New York. A city council had authority to correct descriptions of lands returned for nonpayment of taxes or assessments; but this, it was held, gave them no right to put to a description of land a new name, as that of the owner, when the effect, if valid, would be to make the tax a personal charge against him. Such a change in the assessment, if it could be supported, would de- prive the person assessed of the statutory right to notice, and of the opportunity to apply for correction secured to those named in the original roll? And in several states it has been decided that after the assessment has been completed, no increase in valuation can legally be made, without notice to the tax-payer, either ex- press or implied, with the opportunity for hearing.® neither one who has made objection to the assessment in writing, nor those who do not appear at all, can object. State v. Jersey City, 28 id., 500. And as to the right to be heard in general the following cases may also be referred to. Lorimer v. McCall, 4 W. & 8., 183; Stewart 0. Trevor, 56 Penn. St., 374. And that there must be opportunity afforded for it at the time and place fixed by law, see Sioux City, etc., R. R. Co. v. Washington County, 3 Neb., 30. 1 Courts, in reviewing assessments, exercise a special and limited jurisdic- tion. Hand, J.,in Woodruff v. Fisher, 17 Barb., 224, 232. “Bennett v. Buffalo, 17 N. Y., 383. Compare Overing ». Foote, 43 N. Y., 290, 294, where this is said to be a “close case.” Where the revisory board orders a change made in the assessment, the assessor, it seems, may be com- pelled to make it in a certdorare proceeding. Keck v, Keokuk County, 87 Towa, 547. 3Philips o. Stevens Point, 25 Wis., 594; Matherson v. Mazomanie, 20 id., 191; Cleghorn v. Postlewaite, 43 Ill, 428; Darling v. Gunn, 50 id., 424; Gris- wold v. School District, 24 Mich., 262; Patten v. Green, 13 Cal., 825; Sioux City, etc., R. R. Co. ». Washington County, 8 Neb., 30; Leavenworth County ». Lang, 8 Kans., 284; Kansas Pacific R. R. Co. v. Russell, 8 id., 558. Wherea party liable to taxation makes out and delivers to the assessor a list of his taxable property, which is accepted by the assessor without question, the lat- ter has no power afterwards, of his own motion, to alter it, without giying CH. XII] THE ASSESSMENT OF PROPERTY FOR TAXATION. 269 Personal assessments. Little need be said of poll taxes, as they are seldom levied, and when they are, the case is not likely to raise any other question than that of the jurisdiction of the assessors in the particular case. And this will generally be al question only of whether the person taxed has his domicile within! the district. Such a question is usually one more of fact than of law.? A tax assessed against the person for personal estate is to be notice to the party. McConkey ». Smith, Sup. Ct. IIL, 1875, 7 Chicago Legal News, 210. Where, on appeal from assessment, the appellate board has power to increase valuations on giving ten days’ nutice to the tax-payer, notice to his tenant is not sufficient. State v. Drake, 33 N. J., 194. Where, after valua- tion by assessors, the party taxed is permitted by law to make affidavit of the actual value of his property, this is only evidence to be considered, and not conelusive, unless made so by statute. People ». Barker, 48 N. Y.,70. In Oregon, the decisions of the assessors and county clerk, constituting a board of review, are made reviewable in the supreme court. Rhea v. Umatilla County, 2 Ore., 298, 300; Shumway v. Baker County, 3 id., 246." 1A poll tax can only be assessed on residents. Herriman v. Stowers, 48 Me., 497. On the question, what constitutes residence, the following cases will throw light. Harvard College o. Gore, 5 Pick., 369, 373; Sears v. Boston, 1 Met., 250; Thorndike v. Boston, id., 242, 245; Lyman v. Fiske, 17 Pick., 231, 234; Otis vo. Boston, 12 Cush., 44; Cabot v. Boston, id., 52; Lee v. Boston, 2 Gray, 484; Bulkley v.Williamstown, 3 id., 493; Carnoe v. Freetown, 9 id., 857; Briggs v. Rochester, 16 id., 337; Warren v. Thomaston, 43 Me., 406, 412; Par- son ». Bangor, 61 id., 457; Foster v. Hall,4 Humph., 346, 348; State » Ross, 23 N.J., 517; Daniel v. Sullivan, 46 Geo., 277; Bell v. Pierce, 51 N. Y., 12; Matter of Nichols, 54 id., 62; Fry’s Election Case, 71 Penn. St., 302; S. C., 10 Am. Rep., 698; Arnold v. Davis, 8 R. I., 341; Tripp 0. Brown, 9 id., 240. One living on lands, subject to the exclusive jurisdiction of the United States, is not subject to taxation on polls. Opinions of Judges, 1 Met., 580. One who has left the town of his residence, without the intention of returning, is nev- ertheless taxable there while he remains in the commonwealth, until he has acquired another residence. Bulkley v. Williamstown, 3 Gray, 493. Resi- dence is presumed to continue where it has been until a change is affirma- tively shown, or at least until there is satisfactory evidence of abandonment. Matter of Nichols, 54 N. Y., 62. Ifa line runs through one’s house, he must be taxed in the town which includes the most necessary and indispen- sable portion. He cannot be taxed in both. Judkins 0. Reed, 43 Me., 386; Chenery v. Waltham, 8 Cush., 327. If he is assessed in two towns, his election to pay in one rather than the other is not conclusive, but he is liable in the one of his actual inhabitancy. Lyman v. Fiske, 17 Pick., 231; Chenery ». Waltham, 8 Cush , 327. See also Hardy v. Yarmouth, 6 Allen, 277, 284. His being taxed in one is not evidence that his residence and proper place of tax- ation is not in another. Mead v. Roxborough, 11 Cush., 362. 270 LAW OF TAXATION, [oH. XI. assessed to him at the place of his residence, because in contem- plation of law his movable property accompanies him wherever he goes. This is the general rule, though, as has been shown elsewhere, tangible personal property may be taxed where it is, irrespective of ownership, if the statute shall so provide.1_ Property 1 Ante, p. 14. A vessel registered in New York, plying between Panama and San Francisco, held not taxable in California. Hays v. Pacific Mail Steamship Co., 17 How., 596. See also, State v. Haight, 30 N. J., 428; People v. Commissioners of Taxes, N. Y. Ct. of Appeals (1875), 11 Albany Law Jour- nal, 401. Ferry boats running to a city, but owned in another state, are not taxable to the city as property “within ’ it. St. Louis 2. Ferry Co., 11 Wall., 423. See also Morgan v. Parham, 16 id.,471. So under a statute for the tax- ation of “all lands and personal estates within this state,’? one cannot be as- sessed on capital invested in business in another state, or on chattels upon a farm in another state. People o. Commissioners of Taxes, 23 N. Y., 224. A bond is to be taxed where the owner resides, though the obligor resides elsewhere. Hayne v. Deliesseline, 3 McCord, 874; Augusta v. Dunbar, 50 Geo., 887. But perhaps if both obligor and obligee reside within the state, it would be compe- itent to provide by statute for collecting the tax trom the former. See Harper ». Commissioners, 23 Geo,, 566; Bridges v. Griffin, 33 id., 118. See what is said ‘of this last case in Augusta ». Dunbar, 50 id., 887. The personalty owned by a citizen out of the state is taxable where heresides. Commonwealth v. Hays, 8 B. Monr., 1,2. So are stocks he may hold ina foreign corporation. Me- Keen v. Northampton Co., 49 Penn. St., 519; Whitsell 0. Same, id., 526. The statute provided that nonresidents ‘“‘doing business” in the state should be taxed on sums invested “in said business.” Held not to apply to a manu- factured article merely sent into the state for sale by an agent, who sold and re- mitted the price. Parker Mills v. Commissioners of Taxes, 23 N. Y., 242. That money due on a land contract in the hands of an agent of a non- resident is taxable, see People v. Ogdensburg, 48 id, 390. Compare Su- pervisors v. Davenport, 40 Ill. 197. That nonresidents of a state or dis- trict may be taxed therein in respect to property there situate or business there carried on, see Corfield v. Coryell, 4 Wash. C. C, 871, 880; State ». City Council, 2 Speers, 623; Harrison v. Vicksburg, 3 8. & M.,581; Worth %. Fayetteville, Winston’s L. & Eq., 70; Padleford ». Mayor, 14 Geo., 488; Peace v. Augusta, 37 id., 597; Shirver v. Pittsburg, 66 Penn. St., 446: compare Bennett v. Birmingham, 31 id., 15. Personalty received by a distributee in the state from the estate of one abroad is liable to taxation in the state under astat- ute taxing property distributed “ to or among the next of kin” of an intestate. Alvany v. Powell, 2 Jones Eq., 51. The personal property belonging to the estate of a deceased person is held in Connecticut to be taxable at his last domicile; the representatives of the estate not being trustees in the sense of the statute which makes personal property in the hands of a trustee taxable in the town where the trustee resides. Cornwall v. Todd, 88 Conn., 443. A town which taxes a man as a resident takes the burden of showing that he is such, if the right is questioned. Hurlburt o. Green, 41 Vt., 490; Same vo. Same, 42 CH. XIl.] THE ASSESSMENT OF PROPERTY FOR TAXATION. 271 held in trust should be assessed to the trustee where he resides, except where the trust is under the direction of a court, in which case it would be taxable in the jurisdiction having control of it? A partnership being only a business association of individuals. the members are severally taxable for their interests where they reside,’ unless the statute lays down a different rule! Buta pri- vate banker living in one place, and having a bank in another, is for the purposes of taxation to be regarded as resident where the bank is located.® The principles upon which personal assessments are made are different under different statutes.) The most common method is to assess the owner a sum which is supposed to represent the value id., 316. Consent by a person to be taxed where he does not reside does not give jurisdiction and would not bind him. Blood v. Sayre, 17 id., 609. 1 State v. Mathews, 10 Ohio St. 431, 487; Hardy ». Yarmouth, 6 Allen, 277, 285; Catlin 0. Hull, 21 Vt, 152; Baltimore ». Stirling, 29 Md., 48; Carlisle ». Marshall, 36 Penn. St., 897; People v. Assessors of Albany, 40 N. Y., 154. If there are two trustees, one half may be assessed to each. State v. Mathews, supra; Baltimore v. Stirling, 29 Md., 48. Residence of cestuz que trust imma- terial. People v. Assessors of Albany, supra. ? Lewis v. Chester County, 60 Penn. St., 325. But itis said in this case that if the trustee invests money on mortgage in another state, he may be taxed upon it atthe place of investment. And see Supervisors v. Davenport, 40 IIl., 197. An executor may be assessed personally for taxes against the estate, and have them collected from his own property. Williams». Holden, 4 Wend., 223. 80 it is competent by statute to make the tax on a minor’s estate a personal charge against his guardian. Payson ». Tufts, 18 Mass., 493. 3 Bemis v. Boston, 14 Allen, 366, citing Dwight v. Boston, 12 id, 316; Pea- body v. County Commissioners, 10 Grey, 97. To the same effect is Fairbanks ov. Kittredge, 24 Vt., 9. 4 Hoadley v. County Commissioners, 105 Mass., 519. 5 Miner »v. Fredonia, 27 N. Y., 155. And see Gardiner, etc. Co. v. Gardiner, 5 Greenl., 188; Bates v. Mobile, 46 Ala., 158. But it has been held that the furniture of an inn is only taxable to the innkeeper at the place of his residence. Charlestown v. County Commissioners, 109 Mass., 270. An army officer held taxable on his furniture where he was temporarily stationed in the service. Fin- ley v. Philadelphia, 82 Penn. St., 381. Under a statute in California, personal property is to be assessed and taxed in the county where it is situated, except money and gold dust, which may, at the option of the owner, be taxed at the place of his domicile. But to authorize the assessment of any property in another county from the one in which he resides, it must appear that the property is kept and maintained there, and is not there temporarily or im transttu. People v. Niles, 85 Cal., 282; City of Oakland v. Whipple, 39 id., 112. 272 LAW OF TAXATION. [cH. XIL of his personal property in bulk; though an enumeration of cer- tain articles is sometimes provided for.! The statute may or may not designate what shall be included by the assessors in their es- timate; but the taxable property will be indicated in some form, either by an enumeration of what shall be considered taxable property, or by some general provision that all property shall be taxed except what is specifically exempt.” 1Compare Falkner v. Hunt, 16 Cal., 167, and People v. Sneath, 28 id., 612. Every article specified in an assessment list must on the face of the list be so described as to appear to be taxable. Adam »v. Litchfield, 10 Conn., 127; Whit- tlesey v. Clinton, 14 id., 72. 2 Taxable property does not necessarily include all subjects of taxation: e. g. polls may be taxable, gross sales by merchants, etc. ‘When the words ‘taxable property ’ occur in an independent act, it would seem that they should be understood in the sense of things taxed which are susceptible of owner- ship or possession, unless there is something in the context which aflixes to them a different meaning, or unless the plain object of the law will be de- feated if they are not held to cover subjects of taxation which are not property in the ordinary sense.” 2. W. Walker, J. in Lott v. Ross, 88 Ala., 156, 160, citing Mosely ». Tift, 4 Fla., 402; De Witt v. Hays, 2 Cal., 468. ‘“ Property ” in a statute authorizing the imposition of taxes, without further explanation, would not include a mere right to wharfage fees, though that as a franchise has property value. De Witt v. Hays, 2 Cal., 468. It will include solvent debts. Savings and Loan Association v. Austin, 46 id., 415. See People o. Park, 23 id., 188; Catlin v. Hull, 21 Vt., 152. Damages to which a land owner is cntitled for the taking of his land for a highway are not taxable as a “debt” before they have become fixed and re- ceivable. (A suit was pending.) Lowell v. Boston, 106 Mass., 540. As to what is included in taxable property, see further, Louisville v. Henning, 1 Bush, 381. Where “ certificates of deposit” are taxable, an entry on # pass book is held to be one. Oulton v. Savings Institution, 17 Wall., 109; 8. C., 1 Sawyer, 695. The word machinery held to include gas pipes laid under the streets, and gas meters. Commonwealth ». Lowell Gas Light Co., 12 Allen, 75. See Providence Gas Co. v. Thurber, 2 R. I., 15. As to meaning of “ ¢ncome” when that is taxable, see People v. Supervisors of New York, 18 Wend., 605; Matter of Western Railway, 5 Met., 596; Com- monwealth v. Ocean Oil Co., 59 Penn. St., 61. Where dzvédends are taxed, the tax may be laid though the dividends are declared in stock. Commonwealth v. Cleveland, etc., R. R. Co., 29 Penn. St., 370. If dividends are applied to in- crease capital, they are taxable the same as if paid over. State ». Farmers? Bank, 11 Ohio, 94; Lehigh Crane Iron Co. v. Commonwealth, 55 Penn, St., 448 As to tax on dividends in general, see State v. Charleston, 5 Rich., 561; Haight vy. Railroad Co., 6 Wall., 15; Railroad Co. v, Jackson, 7 id., 262; United States v. Railroad Co., 17 id., 322; Chicago, etc., R. R. Co. v. Page, 1 Bissell, 461; Phoenix Iron Co. ». Commonwealth, 59 Penn. S8t., 104. CH. XII.] THE ASSESSMENT OF PROPERTY FOR TAXATION. 278 Assessment of corporations. As regards corporations, special rules are generally made. It has been decided, that corporations are to be regarded as inhabitants, under a statute which makes the personalty of inhabitants taxable! But this is matter of construction, and must depend on the intent to be gathered from the context.? All corporations are taxable when the state has not expressly relinquished the right to tax by a stipulation in the charter,’ and the method of taxation, and what shall be taken as the measure of the tax, are in the discretion of the legislature. It has been shown elsewhere, that sometimes the franchise is specifically taxed, sometimes the capital, or capital stock,* sometimes the tangible property, and so on. Where rail- road property is taxed as other property is, the personalty should be assessed to the company at the place of its business office ; that being the legal sttus of its personalty,® and for the purposes 1 Baldwin ». Trustees, etc., 37 Me., 8369. The word “ persons” in the tax law includes corporations. Louisville, etc., R. R. Co. o. Commonwealth, 1 Bush, 250. 2The word held not to include corporations. Hartford Fire Ins. Co. » Hartford, 3 Conn., 15; Cherokee, etc., Ins. Co. . The Justices, 28 Geo., 121. Compare British Commercial Life Ins. Co. v. Com’rs of Taxes, 1 Keyes, 303. 3Bank of Pennsylvania v. Commonwealth, 19 Penn. St., 144; Portland Bank v. Apthorp, 12 Mass., 252. And see ante, pp. 15, 25. 4Where a mutual insurance company was authorized to accumulate from its profits a fund to continue liable for its losses during the term of its exist- ence, held that this accumulation was capital, and liable to taxation as such. Sun Mut. Ins. Co., ». New York, 8 N. Y., 241; People vo. Supervisors of New York, 16 id., 424. For a peculiar question on taxation of capital see Com- monwealth v. Penn Gas Coal Co., 62 Penn. St., 241. 5 Portland, etc., R. R. Co. v. Saco, 60 Me., 196; State o, Person, 32 N.J., 184; Pacific R. R. Co. v. Cass County, 53 Mo., 17; Orange and Alexandria R. R. Co. ». Alexandria, 17 Grat., 176. It is so held of the rolling stock of a railroad, though it has also been held competent to distribute the taxation of rolling stock through the various counties where the road runs. Kansas City, etc., R. R. Co. ». Severance, 55 Mo., 878. But on the point, whether the rolling stock of arailroad is to be regarded as real or personal estate, there is great diversity in decisions. See Randall ». Elwell, 52 N. Y., 521. Other corpora- tions are also to be taxed on personalty at the place of their principal office. Western Transportation Co. v. Scheu, 19 N. Y., 408. Where a manufacturing corporation is required to be assessed in the town “where the operations of the company are to be carried on,” this means the manufactory, and not the place of financial operations. Oswego Starch Factory v. Dolloway, 21 N. Y., 449. As to assessment of railroad beds, see ante, 114. 18 274 LAW OF TAXATION. [cH. XII. of taxation, it is sometimes provided that all railroad property shall be considered personal and taxable accordingly ; a provision which the legislature is supposed to be entirely competent to make. The corporation is, of course, taxable on corporate property only; the individual corporators, if taxed on their shares of stock, are to be taxed where they respectively reside, though they may be, and sometimes are taxed at the place where the corporate business is carried on, and the corporation made the collector. In some states railroad companies are taxed upon the road and property as a unit;® in others the line in each county is separately assessed, and in still others the whole is assessed, and then the assessment apportioned between the several counties and towns. Harbeson v. Jack, 2 Watts, 124; Millikin ». Benedict, 8 Penn. St., 169; Negley v. Breading, 32 id., 325; Arthurs v. Smathers, 38 id., 40, 44; Stewart ». Trevor, 56 id., 374. CH. XII] THE ASSESSMENT OF PROPERTY FOR TAXATION. 277 whole being regarded as seated.! So again, the general rule is that while the owner or occupant is taxed personally for the land he owns or occupies, the tax is also made a lien upon the land, and the land will be sold for its satisfaction in case it is not col- lected of the person. In Pennsylvania, on the other hand, while the tax on seated lands is a personal charge, that on the unseated lands alone has until recently been made a lien to be enforced by sale. And even since the recent law which makes seated lands liable to sale for taxes, the proceedings are different; personal notice to the owner being required.? Under all the statutes, however, the requirement of a classifica- tion of lands as seated and unseated, resident or nonresident, ete., is probably to be considered imperative.* It has been so held in Maine,* Massachusetts,> New York,® Pennsylvania,” and in so many other states that any question that might once have been an open one must now be regarded as finally settled.® "Patterson v. Blackmore, 9 Watts, 104. See Ellis v. Hall, 19 Penn. St., 292. ?See Broughton v. Journeay, 51 Penn. St., 81; Lovejoy v. Lunt, 48 Me., 377. * Possibly Connecticut is anexception. See Adams v. Seymour, 30 Conn., 402. +The law required improved lands to be assessed to the owner. Held, that an assessment to person unknown was void. Brown ». Veazie, 25 Me., 359; Barker v, Hesseltine, 27 id., 854. To same effect are Carmichael v. Aiken, 13 La. An., 205; Bidleman ». Brooks, 28 Cal., 72. An assessment of a whole lot to a person, and a sale of the whole is void if a part was never owned or pos. sessed by him. Barker v. Blake, 36 Me., 483. For a case of resident land as. sessed as nonresident, see Lunt v. Wormell, 19 Me., 100. 5 Rising v. Granger, 1 Mass., 48. 6’ Whitney v. Thomas, 23 N. Y., 281; Crooke v. Andrews, 40 id.,547; Newell ». Wheeler, 48 id., 486. 7 Milliken v. Benedict, 8 Penn. St., 169. As to effect of consent to land be- ing assessed in the wrong list, see Lorimer v. McCall, 4 W.& S., 188; Milli- ken v. Benedict, supra; Negley v. Breading, 32 Penn. St., 325; Hathaway v. Ellsbree, 54 id., 498. And as to erroneous listing in general, see Commercial Bank v. Woodside, 14 Penn. St., 404; Stewart o. Trevor, 56 id., 374. Lands assessed as seated cannot be transferred to the unseated list without notice to the owner where practicable. Lorimer v. McCall, 4 W. &8., 133; Milliken ». Benedict, 8 Penn. 8t., 169; Commercial Bank, v. Woodside, 14 id., 404; Stew- art v. Trevor, 56 id., 874; Bechdle v. Lingle, 66 id. 88. But if a parcel has been on no list for severai years, the owner has no such right. Bechdle v. Lingle, supra. Nor generally, it seems, in case of abandonment. Laird ». Hiester, 24 Penn. St., 452. 8 See Messenger v. Germain, 1 Gilm., 631; Green ». Craft, 28 Miss., 70; Ray- 278 LAW OF TAXATION. [CH. XII. Assessment of resident lands. There has been the same strictness of ruling under statutes which require the assessment of resident or seated property to be made to the owner personally, or to the occupant.! Such an assessment is intended to establish a personal liability, and it is very manifest that assessors can have no power to charge one class of persons, when the statute specifies a different class for the purpose. Thus if the statute says the own- ers shall be assessed, the assessors cannot lawfully charge occu- pants who are not owners,’ though if the statute only requires the nor v. Lee, 20 Mich., 884; Milwaukee Iron Co. ». Hubbard, 29 Wis., 51, 56; Washington ». Pratt, 8 Wheat., 681. Where the law requires the land to be assessed to the patentee when the ownenis unknown, any other assessment is invalid. Yendav. Wheeler, 9 Texas, 408. Putting to an assessment of nonresident lands the name of a former owner, held immaterial. Alvord v. Collin, 20 Pick., 418. Sec Miller v. Hale, 26 Penn. St., 482; Philadelphia v. Miller, 49 id., 440; O’Grady ». Barnhisel, 23 Cal., 287; O'Neal . Virginia, etc., Co., 18 Md., 1. If one is owner when pro. ceedings are commenced, an assessment {o him is not rendered invalid by a change in ownership, before they are confirmed, of which the assessors have no notice. Morange v. Mix, 44 N. Y., 315. ‘It need not be so assessed unless the statute requires if. Thompson »v. Carroll’s Lessee, 22 How., 422; Witherspoon ». Duncan, 4 Wall., 210, 219. The rule has been applied with great strictness in Wisconsin in holding that an assessment of the wife’s separate estate to the husband, he living with her upon it, was void under a statute requiring lands to be assessed to the owner or occupant. Hamilton v. Fond du Lac, 25 Wis., 496. Listing of land belong- ing to an estate to “widow and heirs,” of the deceased person, held suf: ficient. Wheeler » Anthony, 10 Wend., 346. Buta listing to the widow alone was held void in Yancey v. Hopkins, 1 Munf., 419. A listing to ‘‘ estate of J. B. Coles,” held good. State v. Jersey City, 24 N.J.,108. Compare Cru- ger v. Dougherty, 43 N. Y., 107. ‘Vhey have a statute in Arkansas that “no sale of any lands or town lots for the payment of taxes shall be considered invalid on account of its having been charged on the tax book in any other name than that of the rightful owner, if such land be in other respects sufficiently described in the tax book, and the taxes for which the same is sold be due and unpaid at the time of such sale.” This statute enforced in Merrick v. Hutt, 15 Ark., 331. And see Kinsworthy ». Mitchell, 21 id., 145; Garabaldi ». Jenkins, 27 id., 453, 456. Compare the Missouri cases of Abbott v. Lindenbower, 42 Mo., 162; 8. C.,46 id., 291; Hume v. Wainscott, 46 id., 145. Mistakes in names, not calculated to mislead will not vitiate. Van Voorhis o. Budd, 39 Barb., 479; Pierce v. Richardson, 37 N. H., 306. ? Mansfield v. Martin, 3 Mass., 419. But the assessment of the lands of a company to one member who was in possession as agent was held sufficient, and the addition of “agent” to his name treated as surplusage. Wells v. Bat- Cil XIL] THE ASSESSMENT OF PROPERTY FOR TAXATION. 279 assessors to list in the names of the owners respectively, if known, if they cmit the name in the list, or set down the lands as belong- ing to persons unknown, the presumption that they performed their duty in endeavoring to ascertain the owner may support the assessment, until evidence that the officers did know the owner overcomes this presumption! Separate tracts to be separately assessed. It is also gener- ally made a requirement that separate and distinct parcels of land shall be assessed separately. This is certainly essential where the lands are resident or seated, and owned by different persons, each of whom has a right to know exactly what demand the govern- ment makes upon him.? And a failure to do this is not a mere ‘omission, defect or irregularity,” which can be overlooked, under a statute which provides that assessments for taxation shall be valid “notwithstanding any omission, defect or irregularity ” in telle, 11 Mass., 477. See further, Coombs 0. Warren, 34 Me., 89; Knox ». Huide. koper, 21 Wis., 527; Cardigan v. Page, 6 N. H., 182; Ainsworth o. Dean, 21 id., 400; Kelsey v. Abbott, 13 Cal., 609; Abbott v. Lindenbower, 42 Mo., 162; 8. C., 46 id., 291; Hume 2. Wainscott, 46 id., 145; Johnson ». McIntire, 1 Bibb, 295. 1 Blackwell on Tax Titles, 145, citing Cardigan v. Page, 6 N. H., 182; Smith v. Messer, 17 id., 420; Nelson v. Pierce, 6 id., 194; Ainsworth v. Dean, 21 id., 400; Brown ». Veazie, 25 Me., 359; Merritt ». Thompson, 18 I11., 716; Shim- min v. Inman, 26 Me., 228; Jaquith v. Putney, 48 N. H., 138. The statute provided that the assessment should show “ the owner of each lot or portion of a lot (if known to the superintendent), if unknown, the word ‘unknown’ shall be written opposite the number of the lot,” etc. Held, that when the assessment was returned with the word “unknown” thus placed, “it amounted to an official certificate, by the proper officer, that in point of fact the owner of the particular lot designated was unknown to him,” and this was conclusive of the fact certified, and could not be collaterally called in question in an action brought to recover the tax. Chambers ». Satterlee, 40 Cal., 497, 518, per Wallace, J. The assessment to 8S. M. Whipple of property belonging to 8. B. Whipple, held void. People v. Whipple, 47 Cal., 591. That where land required to be assessed to the owner is assessed to another, the proceedings are void, see Dunn v. Winston, 31 Miss., 185; Abbott v, Lindenbower, 42 Mo., 162; Hume ». Wainscott, 46 id., 145; People v. Castro, 39 Cal., 65; Himmelman ». Steiner, 38 id., 175; Bidleman v. Brooks, 28 id., 72; Kelsey v. Abbott, 13 id., 609; Yenda v. Wheeler, 9 Texas, 408. 2 Barker v. Blake, 36 Me., 483; State o. Williston, 20 Wis., 228; Roby v. Chi- gago, 48 Ill, 180; People v. Shimmins, 42 Cal., 121; Boardman ». Bourne, 20 Iowa, 185; Ware v. Thompson, 29 id., 65. 280 LAW OF TAXATION, [cH. XIL the proceedings! The like separate assessment is also essential in other cases if the statute requires it. The reasons are suffi- ciently manifest. If separate parcels of land belonging to differ- ent individuals, and presumably of different values, can be assessed together, neither of the owners has any means of deter- mining the amount of tax which is properly chargeable to his property, and consequently no means of discharging his own land from the lien, and of protecting bis title, except by paying the whole of a demand some undefined and undeSinable portion of which is neither in equity nor in law a proper charge against him.’ Nay, when the two parcels are owned by the same person, if the statute requires a‘ separate assessment, obedience to the require- ment is essential to the validity of the proceedings. It cannot be held in any case that it is unimportant to the tax payer whether this requirement is complied with or not. Indeed it is made solely for his benefit; it being wholly immaterial, so far as the interest of the state is concerned, whether separate estates are or are not separately assessed. And where a requirement has for its sole object the benefit of the tax payer, the necessity for a com- pliance with it cannot be made to depend upon the circumstances of a particular case, and the opinion of a court or jury regarding the importance of obedience to it in that instance. That method of construing statutes would abolish all certainty.® 1 Hamilton v. Fond du Lac, 25 Wis., 490. Compare Stewart v. Shoenfelt, 18 8. & R., 360; Bratton v. Mitchell, 1 W. & 8., 810; Mitchell ». Bratton, 5 id., 451; Russell v. Werntz, 24 Penn. St., 387; Miller o. Hale, 26 id., 482; McRey- nolds v. Longenberger, 57 id., 18; Dietrich v. Mason, id., 40; Rogers v. John- son, 67 id., 43; Sargeant 0. Bean, 7 Gray, 125. ?See Shimmin v. Inman, 26 Me., 228; Baker v. Blake, 36 id., 433; Hayden »v. Foster, 13 Pick., 492; Jennings v. Collins, 99 Mass., 29; Crane v. Janesville, 20 Wis., 3805; Orton v. Noonan, 25 id., 672, 677; Siegel v. Outagamie Co., 26 id., 70; Willey 2. Scoville’s Lessee, 9 Ohio, 44; Douglass v. Dangerfield, 10 id., 152, 156; Cooley o. Waterman, 16 Mich., 466; Hanscom ». Hinman, 30 id, 419; McLaughlin v. Kain, 45 Penn. St., 118; Dunn v. Winston, 31 Miss., 135; Terrill ». Groves, 18 Cal., 149. ®See Ins. Co. v. Yard, 17 Penn. St., 331, 838; French v. Edwards, 13 Wall., 506, 511; Walker v, Chapman, 22 Ala., 116; Martin v. Cole, 38 Iowa, 141, 153; Sandwich o. Fish, 2 Gray, 298, 301. But the grouping of two or more parcels owned by the same person was held in Russell v. Werntz, 24 Penn. 8t., 337, to be only an irregularity, and therefore cured under a statute which provided that “no irregularity in the assessment, or in the process or otherwise, shall CH. XI.] THE ASSESSMENT OF PROPERTY FOR TAXATION. 281 What are separate parcels. Assessors are sometimes em- barrassed by the necessity for determining what is to be regarded a separate parcel for the purposes of taxation. “A dwelling house with the land and appurtenances occupied with it, a ware- house so occupied, a farm or other parcel of real estate let to the same tenant by one and the same lease, parcels detached from each other, and used and occupied for different purposes, may re- spectively be regarded as separate and distinct estates) When this can be done, they must be deemed to be separate and distinct estates, to be distinctly valued and assessed.’? But in the case of unimproved lands, the general understanding appears to be, that an assessment as one parcel of that which was purchased by the owner as such is sufficient, though by the government survey it was subdivided, for the purpose of being offered for sale, into several parcels, each of which might have been sold separately. Thus, an assessment of the whole south half of a section has been held good, though it contained four distinct eighty acre lots.” This is on the assumption that the whole is still owned as one parcel,’ or at least that it is not known to the assessors to have be construed or taken to affect the title of the purchaser, but the same shall be declared to be good and legal.” But this would nct validate the assess. ment of unseated land on the seated list, and then transferring it to the un- seated without notice. Milliken v. Benedict, 8 Penn. St., 169. 1 Shaw, Ch. J., Hayden v. Foster, 13 Pick., 492, 497. 2 Atkins v. Hinman, 2 Gilm., 487, 448. And see Spellman v. Curtenius, 12 Ill., 409, where the two halves of a half section were separately described, but assessed together. The assessment and sale of a whole section together was sustained in Martin v. Cole, 38 Iowa, 141. There is a good deal of discussion in this case as to what is to be regarded as a separate parcel for the purposes of assessment and sale. 3 In Jennings v. Collins, 99 Mass., 29, 31, several lots were assessed together to one Packard, who was owner of a part of them only. Wells, J., says “ If the lots had all been the property of Packard at the time the tax was laid, the mere fact that he had divided the land into small lots for the purposes ot sale, would not require the assessors to make a separate valuation of each lot. But where lands are separated, either by the use or purpose to which they are de- voted, or by the mode of their occupation, or are disconnected in location, & tax laid generally upon an entire valuation cannot be made a lien upon each separate parcel, even when they are all owned and occupied by the same per- son.” In California the decisions are that blocks of land in a city may be us. sessed by blocks when assessed to the owner, even if they have been subdi. vided into lots. People v. Culverwell, 44 Cal., 620; People o. Morse, 43 id., 534, 282 LAW OF TAXATION, (cH. XIL been divided by sale! But an assessment which divides such a parcel into the lowest legal subdivisions can not prejudice the owner where the land is unoccupied and unimproved,? and would seem to be unobjectionable. Unimproved water power, it has been held, cannot be taxed independently of the land on which the power is obtained, and the authorities in general are im- perative in holding that an unauthorized division of a tract in the assessment, which tract has no known legal subdivisions, is as fatal as an unauthorized grouping of distinct parcels would be.‘ Description. In listing the land, it must be described with particularity sufficient to afford the owner the means of identifica- tion, and not to mislead him.’ A description that would be suffi- It is proper to assess partnership lands to the partnership, instead of the indi- vidual partners. Hubbard v. Winsor, 15 Mich., 146. ‘It is usual to provide by statute for the case of lands where different per- sons Claim distinct interests in different portions; allowing each to pay the tax on any portion he will distinctly define; the amount being ascertained by the proportion in quantity which that tax bears to the whole. * See Jennings v. Collins, 99 Mass., 29,31. If two town lots are occupied and used as one lot, the buildings thereon being partly on each, they may be sold for taxes together as one lot, their use and nature determining that they are to be regarded as one lot. Weaver v. Grant, Sup. Ct. Iowa, 8 Western Jurist, 587. 3 Boston Manuf. Co. 0. Newton, 22 Pick., 22. It was held in Stein ». Mobile, 17 Ala., 234, that where one holds real estate within a city, and in connection therewith an exclusive right to supply the city with water, this intangible right is subject to valuation and taxation like tangible property. 4 Reading v. Finney, 73 Penn. St. 467. In Brown ». Hays, 66 id., 229, it ap. peared that warrant No. 4028 containing 1026 acres, all but 16 of which was in Polk township, was assessed in Polk by the number, and the taxes paid for several years. Afterwards it was assessed by number in Polk as 726 acres, and the remaining 300 acres in the other township. ‘The owner paid the taxes m Polk, ard the remainder was sold. Held, that the payment by the number of the warrant was payment in full, and the sale of the 800 acres was wholly void. The assessor had no right to divide the tract in Polk into two parcels when not divided by the owner; and the assessment with a wrong specification of quantity would not be notice to the owner that the remainder was assessed elsewhere. And see Williston v. Colkett, 9 Penn. St., 88, where an assessment of a tract as 200 acres was held good, though it contained 600; the remainder of the description sufficiently identifying it. 5 Mr. Blackwell, in his Treatise on Tax Titles, p. 124, says: “A description sufficiently certuin to convey land between man and man which, if contained in an agreement to convey, would authorize a court of equity to decree a spe- cific execution, will not answer in the proceedings to enforce collection of a CH. XIL] THE ASSESSMENT OF PROPERTY FOR TAXATION. 283 cient in a conveyance between individuals would generally be sufficient here. It is, nevertheless, possible for cases to arise in which such a criterion would be an unsafe one to apply. Ina deed which one executes for the purpose of conveying a particular description of land, if errors of description occur, they may well be rejected and the deed sustained if, after rejecting them, a suffi- cient description remains to identify the land intended; because the erroneous circumstances which were added could not have mis- led the party conveying, who, all the time, had in mind a particular parcel which the erroneous particulars did not fit. But the same errors in a description prepared by another, might very likely tax. In the case of private transactions, the courts, in construing the docu- ment, endeavor to collect the intention of the parties, and give that intention effect. Ifa latent ambiguity exists in the description, parol evidence is re- sorted to for the purpose of explaining it, and giving to the intention of the parties complete operation ; and where the estate to be conveyed is sufficicntly described in the deed, or other writing, the addition of a circumstance, false or mistaken, will be rejected as surplusage, in order to carry that intention into effect. 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 collection of a tax from him. Ifthe officers undertake to list for him Jands lying in one place for those which lie in another, or have no existence at all, they intend to do what the Jaw, under which they profess to act, does not permit. The rule is laid down that a list- ing is fatally defective and void, if it contain such a falsity in the designation or description of the land listed as might probably mislead the owner, and prevent him from ascertaining by the notices that his land is to be sold or redeemed. Such a mistake or falsity defeats one of the obvious and just purposes of the law—that of giving the owner an opportunity of preventing the sale by paying the tax.” With deference it may be suggested that quite too much importance is sometimes attached to the idea that “the government, through its agents, is acting in hostility to” the tax payer, “and with a view to enforcing the collection of a tax from him.” The proceedings in the assessment of a tax, are not, in any proper sense, hostile to the citizen; they are, on the other hand, proceedings necessary and indispensable to the deter- mination of the exact share which each resident, or property owner, ought to take, and may and ought to be supposed desirous of taking in meeting the public necessity for a revenue ;— proceedings which the willingness of the tax payer cannot dispense with, and which only become hostile when the duty to pay, once fixed, fails to be performed by payment. Then, and then only, do the steps taken by the government assume a compulsory form; until then the reasonable presumption is that government and taxpayer will act together in harmony, and that the latter will meet his obligation to pay as soon as the former has performed its duty in determining the share to be paid. 284 LAW OF TAXATION. [CH. XII mislead the owner who would be informed of no error, and who must, from the description alone, discover what land was intended. The same may be said of any imperfection in the description ; the owner, if it has been prepared by himself, will read it in connec- tion with his own knowledge of those surrounding circumstances, in the light of which he has framed it; but an equally imperfect description, prepared by another and unaccompanied by any such circumstances, would fail to convey to his mind any idea that his own land was intended. It certainly would be much less likely to do so than where he had prepared it himself. The purposes in describing the land are, jist, that the owner may have information of the claim made upon him or his prop- erty; second, that the public, in case the tax is not paid, may be notitied what land is to be offered for sale for the nonpayment ; and third, that the purchaser may be enabled to obtain a sufficient conveyance. If the description is sufficient for the first purpose, it will ordinarily be sufficient for the others also. Several at- tempts have been made to lay down some general rule as to what is sufficient, and what not, for a description in the listing. ‘‘ No- tice,” it is well said, ‘‘or at least the means of knowledge, is an essential element of every just proceeding which affects rights of persons or of property. But how can the duty of the payment of taxes be performed without the identity of the subject matter of the duty being made known to him who is to perform it, by name or description? A thing, whether land or chattel, to be the subject of legal action, must be proceeded against by name or by description, but a name is descriptive only because it has become associated with the person or thing named. A name, therefore, which has never become connected in any manner with any title or possession of land, clearly infers no means of its iden- tification. So the mathematical contents expressed in figures is not a mark of identity peculiar to the land; but like a common noun, has no immediate or cognate relation to a particular tract. * * Identity is said to be a matter for the jury. Certainly this is so; but from its very nature, the fact of identity is dependent on circumstances which attach themselves to the land. It is be. cause the thing described answers to the circumstances of descripe tion, we are able to identify it. The evidence of identity is the record which contains the description and fixes the duty. As- CH. X11] THE ASSESSMENT OF PROPERTY FOR TAXATION. 285 sessment is, from its legal requirement, and the necessity of pre- serving its evidence, a written entry, and must depend upon the - records of the commissioner’s office, and not upon parol testi- mony, or the private duplicate of the assessor.”1 And after an examination of cases decided, it is added: “The result of the whole is, that where the assessment wholly fails to lead to identi- fication, so that neither the owner nor the officer can tell that his land is taxed, the duty of payment cannot be performed, and the assessment is void.”* The rule thus given is quite as liberal in support of imperfect or inaccurate descriptions as would be ap pled to conveyances inter partes. In another case in the same state, it is said asale “will pass the title, although assessed in a wrong name or by a wrong number, if otherwise designated and capable of identification. The reason for this is the recognized prin- ciple, that it is the land, and not the owner, which is chargeable, and to be charged with the tax. It must, however, be suscepti- ble of identification as the land assessed, otherwise the sale would be void.” § But identification may possibly be made out to the satisfaction of a jury by a description that would be extremely likely to mislead the owner himself ; the jury having their atten- tion called to the errors or defects which exist, and the owner not ' Philadelphia v. Miller, 49 Penn. St., 440, 448, per Agnew, J., citing and com- menting upon McCall o. Lorrimer, 4 Watts, 351, 355; 8. C., 4W. &S.,, 183; Dunn ». Relyea, 6 W. & 8., 475; Stewart v. Shoenfelt, 13 8. & R., 360; Luff borough v. Parker, 16 id., 351; Morton ». Harris, 9 Watts, 319, 325; Hubley v. Keyser, 2 P. & Watts, 496; Strauch v. Shoemaker, 1 W. &8., 166: Burns v. Lyon, 4 Watts, 363; Harper v. McKeehan, 3 W. & S., 288; Russel vo. Werntz, 24 Penn. St., 887; Laird v. Heister, id., 452; Miller o. Hale, 26 id,, 482; Cooper v. Brockway,'8 Watts, 162, 165; Thompson ». Fisher, 6 W.&S., 520; Dunden ». Snodgrass, 18 Penn. St., 151; Woodside v. Wilson, 82 id., 52. These cases pass upon a great variety of descriptions, some of which are held sufficient, and some are not. 2 Philadelphia v. Miller, 49 Penn. St., 440, 455; Harris v. Tyson, 24 id., 347. See also Glass v. Gilbert, 58 id., 266. It is the:return of the tract by the asses- sors which fixes its identity and liability to taxation. Brown v. Hayes, 66 Penn. St., 229. In some states, however, provision is made by law for a cor- rection of the descriptions by the county board. 3 Thompson, J., in Woodside v. Wilson, 82 Penn. S8t., 12,54. This statement would, of course, be inapplicable to the case of an assessment of resident Jand. When the law requires it to be assessed to the owner, it must be so assessed, as preceding cases show. 286 LAW OF TAXATION. [cH. XIL being aware that there are any, but having a right to assume, until ‘ notified to the contrary, that all descriptions in the list have accurate application to some particular pieces of property, and fit some others when not appearing to fit his. A more satisfactory rule would seem to be that “the designation of the land will be sufficient if it afford the means of identification, and do not post- tively mislead the owner,”! or be calculated to mislead him? It is thus expressed ina New York case: “An assessment of nonresident land is fatally defective and void if it contain such a falsity in the designation or description of the parcel assessed, as might probably mislead the owner and prevent him from ascer- taining by the notices that his land was to be sold or redeemed. Such a mistake or falsity defeats one of the obvious and just pur- poses of the statute — that of giving to the owner an opportunity of preventing the sale by paying the tax.”* Under this rule each case must depend so much upon its own special facts that little service could be done by giving the decided cases in detail here. Several are given in the note, and others are referred to.* 1 Thompson, J., in Woodside v. Wilson, 32 Penn. St., 52, 55. 2 See Curtis v. Supervisors of Brown County, 22 Wis., 167, in which it is denied that a description sufticient as between parties will be sufficient al- ways in an assessment, or that particulars in it which are erroneous can be rejected as surplusage. To the same point is Dike v. Lewis, 4 Denio, 257; sce also Orton v. Noonan, 23 Wis., 102, in which it is said words cannot be sup- plied by intendment. It is to be observed of this case, however, that the words it was proposed to supply would have wholly changed the apparent meauing. 3 Ruggles, J., in Tallman v. White, 2 N. Y., 66,71. See also Lafferty v. By- ers,5 Ohio, 458; Turney v. Yeoman, 16 id., 24; Farnum v. Buffum, 4 Cush., 260: Amberg v. Rogers, 9 Mich., 382; Green »v. Lunt, 58 Me., 15; State o. Union, 36 N.J.,309. In Hill vo. Mowry, 6 Gray, 551, the rule is laid down that a tax deed, taking effect only as the execution of a statute power, should be construed with some strictness, so as to enable the grantee to identify the land, and to enable the owner to redeem it. And it was held that a deed which bounds the land correctly on two sides, bounds it on the third by land on which in fact it is bounded in part only, and on the fourth by land from which it is separated by the land of a third person, is void for uncertainty. 4 Where the only description was “ William Bush’s heirs, 2560 acres,” held insufficient. Bush». Williams, Cooke (Tenn.), 274. So where the description was “Moses Buffum, house and land,” Buffum not being the occupant. Farnum »v. Buffum, 4 Cush., 260. Compare Coombs o. Warren, 34 Me., 89 So where the description is part of a lot without showing how much, or giv. CH. XIL] THE ASSESSMENT OF PROPERTY FOR TAXATION. 287 Valuation. Where the grouping of lands for assessment is inadmissible, the valuation of several parcels in gross is equally so. No valuable purpose could be subserved by separate de- scriptions if the parcels, though separately described, were to be grouped in yaluation.? ing boundaries. Detroit Young Men’s Society v. Detroit, 3 Mich., 172; Massie »v. Long, 2 Ohio, 237, 289; Green ». Lunt,58 Me, 518. But a description, as “that part of private claim 61, lying east of the north branch of the river Ecorse,” in a township named, is sufficient. Gil man 2. Riopelle, 18 Mich., 145. Error in stating the quantity of the land, however great, will not vitiate. Brown v. Hays, 66 Penn. St., 229; Williston ». Colkett, 9 id., 38; Gilman ». Riopelle, 18 Mich., 145. Omission of the number of a town lot, or the name of the owner, is fatal where the law re- quires them to be given. Thacher ez parte, 8 Sneed, 844. Description in the notice of tax sale, as “ Tract No. 8, 8. D., advertised, 4197,” held wholly insuf- ficient. Griffin v. Crippen, 60 Me., 270. Compare Glass v. Gilbert, 58 Penn. St., 266, 290. An assessment as definite as the grant under which the land is held, is sufficient. People v. Crockett, 83 Cal. 150. A description, * one hundred varas square,” with definite boundaries on three sides, is sufficient. Garwood ». Hastings, 88 Cal., 215. An assessment of a large tract of land, which describes it by metes and bounds, and then excepts from the tract par- cels of the same which have been previously conveyed, but does not describe the excepted portions by metes and bounds, nor in any manner but by a ref- erence to recorded deeds, is vo¢d on its face. People v. Cone, 48 Cal., 427; People ». Hyde, id., 481; see also People v. Hancock, id., 631. A description of the land by well understood abbreviations is sufficient, thus: “ E. 1g, s. w. Yy, sec. 24, town 3 south, of range 7 west,” etc. Sibley v. Smith, 2 Mich., 486, 503; see also Long ». Long, 2 Blackf., 293; Jordan, etc., Association, etc., v. Wagoner, 83 Ind., 50; Atkins ». Hinman, 2 Gilm., 437; Olcott v. State, 5 id., 481; Blakely v. Bestor, 18 Ill, 714; Stevens v. Hollister, 18 Vt., 294; Goodell v. Harrison, 2 Mo., 124. Further, as to what is a sufficient description, the following cases are instructive. Ronkendorf v. Taylor, 4 Pet., 319; Lafferty’s Lessee v. Byers, 5 Ohio, 458; Trevor v. Emerick, 6 id., 391; Larrabee v. Hodg- kins, 58 Me., 412; Griffin ». Crippin, 60 id., 270; Orono v. Veazie, 61 id., 431; Currie v. Fowler, 5 J.J. Marsh, 145; Le Fever »v. Detroit, 2 Mich., 586; Wright v. Dunham, 13 id., 414; Atwell o. Zeluff, 26 id., 118, 121; Jaques v. Kopman, 6 La. An., 542; ‘Woolfolk ». Fonbene, 15 id., 15; Latchman ». Clark, 14 Cal., 131; High v. Shoemaker, 22 id., 363; Bosworth ». Danzien, 25 id., 296; Peo- ple v. Flint, 39 id., 670; Ainsworth 2. Dean, 21 N. H., 400; Bidwell v. Webb, 10 Minn., 59; Bidwell v. Coleman, 11 id., 78; St. Peters Church 9. Scott Coun- ty, 12 id., 395; Shaw 0. Orr, 80 Towa, 355. A falsity in the description which might mislead, runs through and invalidates all the subsequent proceedings. Yenda v. Wheeler, 9 Texas, 408. 1 People v. Mining Co., 39 Cal., 511; People ». Hollister, 47 id. 408. In this last case there was a separate valuation of each parcel in the column with the descriptions, but not carried into the appropriate column. “Valu.” it js 288 LAW OF TAXATION. [oH. x10. It is elsewhere shown! that valuation is in its nature a judicial act, and the assessors in making it are entitled to the customary protection which the law accords to officers exercising correspond. ing judicial functions. The party injured by their errors, com- mitted without fraud or malice, has in general only such remedy as the statute may afford him. And in no proceeding is one to be heard who complains of a valuation which, however erroneous, charges him only with a just proportion of the tax. If his own assessment is not out of proportion, as compared with valuations generally on the same roll, it is immaterial that some one neigh- bor is assessed too little and another too much.’ The legislature cannot make the valuations of property for taxa- tion. The nearest approach to the exercise of such an authority by the legislature is where it definitely fixes the basis for a local assessment, by the acre, by frontage, etc. But in such cases the considerations which affect benefits are matters of notoriety, and may well be taken notice of by the legislative body when pre- scribing arule which, at least in the particular case, is to operate generally and with uniformity. In a majority of the states the rule prescribed by the statutes is that lands and other real estate shall be valued as such, irrespective of the separate estates that in- dividuals may have inthem. Undersuch a practice, he who, for the time being, enjoys the possession of the real estate, and the per- nancy of the profits may be charged with the tax.4 The prac- tice, however, has not been universal ; in some states, and partic- said, “can only be determined by the ordinary selling and buying prices, for cash, at the time.” Caruthers, J., in Brown v. Greer, 3 Head, 695, 697. This is a criterion which, it is safe to say, is very seldom applied. 1See Chapter XXIV. ?> Chicopee v. County Commissioners, 16 Gray, 38. As to actual value, and how it is to be got at, see State v. Ferris, 23 N. J., 546; State o. Randolph, 25 id., 427; Oswego Starch Factory v. Dolloway, 21 N. Y., 449; People o. Do. lan, 36 id., 59, 62; People v. Ferguson, 38 id., 89; People ». Barker, 48 id., 70. 3 People v. Hastings, 29 Cal., 449. Of course the assessment is fatally de- fective if it lacks the valuation. Garwood ». Hastings, 88 id., 216. As to the valuation of railroad property, see State v. Illinois Central R. R. Co., 27 Ill, 64. 4Turner v. Smith, 14 Wall. 553; Atkins ». Hinman, 2 Gilm., 487, 449; Parker v. Braxton, 2 Gray, 185; Willard o. Blount, 11 Ired., 624; Brown 0. Austin, 41 Vt. 262; Merrick v. Hutt, 15 Ark., 831; Briscoe v. Coulter, 18 Ark, 423; Blackwell on Tax Titles, ch. 88 and notes. CH. XII] THE ASSESSMENT OF PROPERTY FOR TAXATION, 289 ularly in some special proceedings, the statutes have req uired separate interests to be separately assessed.!_ When the whole isas- sessed as an entirety, provision is usually made under which the respective owners may pay their proportions of the tax, and have their respective interests discharged of the lien.? Authentication of the assessment. The result of the action of the assessors is embodied in an assessment roll or list. The statutes provide how this shall be authenticated, and compliance with their provisions is essential. The methods are different in the different states, and are sometimes changed in the same state. But the rule of law is clear. Where the law required the roll to 1 Separate interests in Pennsylvania assessed and sold separately. See Mc. Laughlin v. Kain, 45 Penn. St., 118. As to Mississippi, see Dunn v. Winston, 81 Miss., 185. As to Kentucky, see Oldhams ». Jones, 5 B. Monr., 464. In the case of special assessments it has been more usual to assess (listinct inter- ests separately, sometimes, however, providing for a sale of the fee. See Jack- son v. Babcock, 16 N. Y., 246; Matter of De Graw St. 18 Wend., 568. And see further Williams v. Brace, 5 Conn., 190. The case of Jackson ». Babcock, 16 N. Y., 246, was this: The statute provided for proceedings in court un- der which, in street opening cases, where there were distinct interests in lands which were subject toa lien for the assessment, one owner of an interest might proceed in the supreme court against all the others, including unknown owners, for an equitable apportionment of the assessment, and after advertis- ing for the appearance of the unknown owners, obtain an order for an abso- lute sale of the fee; the proceeds to be applied, so far as necessary, to thie dis- charge of the assessment. This statute was held to be valid, and effectual to cut off all contingent as well as vested rights. 2 There are some cases in which it has been held that the omission of the dollar mark as a prefix to the figures which represent the value of the prop- erty in the assessment roll will render the assessment nugatory; there being nothing in its absence by which to determine what the figures indicate. Bra- ley v. Seaman, 30 Cal., 610; People v. Savings Union, 31 id., 182. And see People v. Empire, etc. Co., 33 id., 171. The contrary has been held in New Hampshire. Cahoon v. Coe, 52 N. H., 518, 524. And sce State v. Eureka, etc., Co., 8 Nev., 15; Chickering ». Faile, 38 Ill, 342; Elston v. Kennicott, 46 id., 187,202. In Illinois it is decided that a judgment for taxes in which the sums are expressed in figures without a dollar mark prefixed, is void for want of certainty. Lawrence ». Fast, 20 Ill, 838; Lane v. Bommelmann, 21 id., 148; Epinger v. Kirby, 23 id., 521, 523; Dukes v. Rowley, 24 id., 210; Chickering v. Faile, 38 id., 842; Cook v. Norton, 43 id., 391; Potwin ». Oades, 45 id., 366; Elston v. Kennicott, 46 id., 187; Pittsburg, etc., R. R. Co. v. Chicago, 53 id., 80. These decisions were followed in Woods v. Freeman, 1 Wall., 398; and Ran- dolph v. Metcalf, 6 Cold., 400, 408. 3 Warner v. Grand Haven, 30 Mich., 24. 19 290 LAW OF TAXATION. [oH. X1L. be signed, and a certificate to be attached, the signing of the cer- tificate was held not to dispense with a signing of the roll, and if that was not signed, no proceedings could be taken upon it.? Where the statute required the assessors to certify that they had assessed the property at its true value, according to the best of their knowledge and belief, a certificate that they had assessed it “according to the usual way of assessing” was declared void. The same was held of a certificate that the assessors had estimated the real estate “ at a sum which, for the purposes of the assessment, we believe to be the true value thereof.”* In these cases the asses- sors had endeavored to make the certificates correspond to the fact, it being notorious that whatever they may certify, they are not in the practice of estimating property at its true value A failure, however, to comply literally with a statutory form will not vitiate if there is a substantial compliance.* Equalization. In some states, when assessment rolls are com- pleted and signed, they are subject to review by a higher authori- ty, for the purpose of an equalization, in case the assessment of one district is found to be relatively higher or lower than that of 1 Sibley v. Smith, 2 Mich., 486. The statute was afterwards changed. See Lacy v. Davis, 4 Mich., 140. Seefurther Colby v. Russel, 3 Greenl., 227; Fox- croft v. Nevens, 4 id., 72; Kelley ». Craig, 5 Ired., 129; Johnson v. Elwood, 53 N. Y., 481,485. A similar defect held a mere irregularity and cured as such by a statute that no irregularity should defeat the tax title. Townsen v. Wil- son, 9 Penn. St., 270. 2?Van Rensselaer v. Whitbeck, 7 N. Y., 517: compare Parish v. Golden, 35 id., 462. 2Clark ». Crane, 5 Mich., 151. See also Colby v. Russell, 3 Greenl., 227; Foxcroft v. Nevens, 4 id.,72; Johnson » Goodridge, 15 Me., 29; Kelar ». Sav- age, 20 id., 199. +Parish v. Golden, 35 N. Y., 462; Buffalo, etc., R. R. Co. v. Supervisors of Erie, 48 N. Y., 93; Bradford ». Randall, 5 Pick., 496; People v. Mining Co., 39 Cal.,511. See Bangor v. Lancey, 21 Me., 472. In thiscase it appeared that the statute required the list to have the official sanction of a majority of the as. sessors, evidenced by their signatures. The original list was not signed, but a supplementary list referring to it as containing the assessment for the year was duly signed. Held sufficient. As to what irregularities will defeat an as. sessment the following cases may- be consulted. Willey ». Scoville’s Lessees, 9 Ohio, 44; Shimmin v. Inman, 26 Me., 228; Smith v. Davis, 30 Cal., 536, cited in Huntingdon »v. Central Pacific R. R. Co.,2 Sawyer, 508. What will not avoid: Gulf R. R. Co. v. Morris, 7 Kansas, 210; Smith ». Leavenworth Co., 9 id., 296. CH. XII.] THE ASSESSMENT OF PROPERTY FOR TAXATION, 291 another; so that, if the general taxes were to be assessed upon it, the district would pay more or less than its due proportion.! Thus, town assessment rolls are equalized by county boards of super- visors or commissioners, and the aggregate of the county assess- ments by a state board, established for the purpose. This is not done by changing individual assessments, but by fixing the ag- gregate sums for the several districts at what, in the- opinion of the board, they should be, so that general taxes may be levied ac- cording to this determination, instead of on the assessor’s foot- ings. These boards act judicially in equalizing, and their de- cision is conclusive. The boards are composed of popular repre- sentatives, and they act upon their own judgment of what is equal and just.*, But such a board has a special and limited ju- risdiction, and any unauthorized action is void.* And _ their powers, like those of all similar boards, are to be strictly con- strued.* They cannot release a tax, or its lien, when not ex- pressly empowered to do so.® 1 As to the equalization and the necessity therefor, see County Commission. ers v. Parker, 7 Minn., 267; Tweed v. Metcalf, 4 Mich., 579; Tallmadge ». Su- pervisors of Rensselaer, 21 Barb., 611; State o. Allen, 48 Il1., 456; People v. Nichols, 49 id., 517. The members of a state board of equalization are really assessors, and, where all assessors are required to be elected by the people, this board cannot be created by appointment. Houghton v. Austin, 47 Cal., 646; People v. Raymond, 37 N. Y., 428. 2See Tweed ». Metcalf, 4 Mich., 579; Case v. Dean, 16 id., 12; Bellinger ». Gray, 51 N. Y., 610. 3 See State v. Allen, 43 Ill., 456; People v. Nichols, 49 id., 517; Darling v. Gunn, 50 id., 424; McKee ». Supervisors of Champaign, 53 id., 477. That the valuation of assessors is conclusive on the county board, except when the statute otherwise provides, see Respublica v. Deaves, 3 Yeates, 465. In rais- ing or reducing the assessment of a district, it is sufficient if the board desig- nate the percentage increase or reduction. Hubbard ». Winsor, 15 Mich., 146. +Sioux City, etc., R. R. Co. o. Washington County, 3 Neb., 30. 5 State v. Central Pacific R. R. Co., 9 Nev., 79. Where the board has au- thority to equalize, and also to discharge assessments, they do not exhaust their authority by a hearing and decision on equalization. State o. Ormsby County Com’rs, 7 Nev., 392. A board, having authority to equalize assessments as between townships, cannot, of their own motion, increase an individual assessment above that re- turned by the assessor. McConkey ». Smith, Sup. Ct. Ill, 7 Chicago Legal News, 210. 292 LAW OF TAXATION. [CH. XIIL CHAPTER XIII. THE COLLECTOR'S WARRANT. Before the collector is authorized to proceed in the collection of the taxes, he must have his warrant for the purpose, in due form of law. This, in different states, may be the assessment roll or list, with the tax extended upon it, or it may be a dupli- cate of the list with a like extension, or it may be either of these, with a formal warrant attached, particularly indicating what are his duties under it, and commanding their performance.t Whatever the statute provides for, in this regard, the collector must have, and he is a trespasser if he proceeds to compulsory action with- out it? Upon this point the decisions are numerous and uniform. In a case arising under a statute which required that a warrant should be attached to the tax duplicate, the following remarks have been made: “The authority of a collector of taxes to col- lect is his warrant. The duplicate is but a memorandum of the amount he is to collect from the parties therein named respectively. Without a warrant, the collector becomes a trespasser as soon as he intermeddles with the property of the tax payer. There must also be a law authorizing the issue of a warrant, and some per- son appointed to issue it, and it must conform to the law author- izing it, and be issued by the proper person designated by law, or it is no protection to a collector.”* No question is made any- where of the correctness of this doctrine. Whatever may be the requisites of the warrant under the statute, care must be taken that they be observed. One of the most im- 1 The tax roll is void if made out before the tax is voted. Gale v. Mead, 4 Hill, 109. 2 Blackwell on Tax Titles, 168, and cases cited. 3 Hilbish 0. Horner, 58 Penn. 8t., 93, citing Pearce ». Torrence, 2 Grant’s Cases, 82; Stephens v. Wilkins, 6 Penn. St., 260. And see Chalker v. Ives, 55 id., 81. The same doctrine is declared under a different law, in Slade v. Gov- ernor, 3 Dev., 365; Kelly v. Craig, 5 Ired., 129. And see Brown ». Wright, 1% Vt., 97. CH. XIII. | THE COLLECTOR'S WARRANT, 298 portant of these is the direction. If it is directed to one officer when under the statute it should be to another, the process is fa- tally defective.t It has been decided in Maine, under a statute which gives a form to be followed “in substance,” that the omis- sion of that part of the form which directs the treasurer to levy distress in default of payment renders the warrant nugatory, and the treasurer may refuse to execute it? But variances in immateri- al matters will not vitiate the warrant. Thus under the Maine statute it is held that the omission in the warrant, “In the name of the state of Maine,” which is a part of the form, is immaterial.? In Vermont the question is made whether the date is an indis- pensable part of the warrant, but if it is, it is held that an error in the date will not avoid it* The decisions in the same state are very liberal in holding that other accidental errors and defects shall not vitiate the process.’ In Massachusetts where the statute provides that ‘‘the assessors shall commit the tax list, with the warrant under their,hands, to the collector for collection,” a failure to attach them, if both are delivered to the collector, is immateri- al.6 And in the same state an error in the command of the war- rant, by which the collector was directed to arrest the person taxed within twelve days, instead of fourteen, as it should have been, after demand of the tax, if the same should not be paid, etc., will not vitiate the warrant, nor become material, unless the direction to arrest is acted upon.? In New York a warrant issued and 1 Stephens o. Wilkins, 6 Penn. St., 260; Cannell ». Crawford County, 59 id., 196. 2 Bachelder v. Thompson, 41 Me., 539. In Wilson »v. Seavey, 88 Vt., 221, it was held that naming the collector’s predecessor in the address of the war- rant, instead of naming him, did not invalidate it. 3 Mussey v. White, 8 Greenl., 290. A constitutional provision that all pro- cess shall run “ in the name of the people,” etc., held not applicable to a col- lector’s warrant. Tweed ». Metcalf, 4 Mich., 579; Wisner 0. Davenport, 5 id., 501; Curry o. Hinman, 11 II1., 420; Scarritt 0. Chapman, 11 id., 448; State o Birchard, 1 Wis., 457. + Bellows v. Weeks, 41 Vt., 590. 5 Goodwin v. Perkins, 39 Vt., 598. See Spear v. Braintree, 24 id., 414; Chand. ler v. Spear, 22 id., 388. 6 Barnard v. Graves, 13 Met., 85. 7Barnard v. Graves, 18 Met., 85, citing King ». Whitcomb, 1 id., 328. In Connecticut it is held that if the warrant is not attached to the list, and the of 294 LAW OF TAXATION. [CH. XIIL. signed by the supervisors as required by law, is good, though they fail to add to their signatures the official title’ An error in the direction to the collector by which he is commanded to account to the wrong officer is immaterial; this being a matter that does not concern the tax payers.” Thesameis true of a failure to limit by the warrant the time within which the treasurer shall collect the tax.3 Different rolls for different taxes. It is not always the practice to have one assessment and tax roll for the state taxes and another for the local taxes. On the contrary, for what may be called the general taxes of the municipality, it is customary to provide that, when voted, they shall be certified to such state or county officer or board as is authorized to issue the tax warrant for state or county taxes, and by such officer or board shall be spread upon the same roll or list, though in a separate column, and becollected by authority of the same warrant. The regulation may be the opposite of this; that the state taxes shall be certified to county or town officers, and by them spread upon the roll. Such provisions do not give the state or county functionaries any power to review, revise or set aside, the local action, but they must levy what has been voted, and may be compelled to do so.4 ficer is commanded by his warrant “to collect of the persons named in the annexed list,” etc., there is nothing to which these words can apply; the command in the warrant is nugatory, and he can take the property of no in- dividua]. Picket ». Allen, 10 Conn., 145. 1Sheldon v. Van Buskirk, 2 N. Y., 473. ? Clemons v. Lewis, 36 Vt., 673. Compare Tweed v. Metcalf, 4 Mich., 579. 3 Walker v. Miner, 32 Vt., 769. Such a warrant may be defective as between the collector and the public he acts for, but the defect does not invalidate any action taken to collect the tax under it. Jd. In Iowa it seems that the au- thority to sell lands comes from the statute and not from a tax warrant. See Parker v. Sexton, 29 Iowa, 421; Rhodes ». Sexton, 33 id., 540. 4Where the law gives a city full authority to vote money for the support of the poor, etc., and requires the supervisors to “ cause the same to be raised, as. sessed and collected,” the supervisors have no discretion to refuse on the ground that funds for the like purposes have previously heen misapplied. Ha parte Common Council of Albany, 3 Cow., 858. Compare Williams». School District, 21 Pick., 75. Sometimes the auditing of accounts is made by law equivalent to the vote of atax. See People v. Supervisors of Queens, 1 Hill, 195. CI. Xt] THE COLLECTOR'S WARRANT. 295 Delivery of the warrant. A provision of statute that the of ficer or board making out the warrant shall deliver it to the col- lector by a day named is only directory.! But any such delay as would leave the collector insufficient time for compulsory proceed- ings under the statute, would of course preclude their being taken. Exhausting authority. The issue of a void tax warrant would not exhaust the authority to issue a valid one. In some states by statute, or by a customary course of procedure, when one valid process does not result in the collection of all the tax, another may issue. For personal taxes which remain uncollected suits are sometimes provided for, especially where the failure to collect is in consequence of a removal of the party taxed from the treasurer’s jurisdiction. Blending taxes. A very common provision of statute, where several taxes are to be spread upon the same roll is, that they shall be kept separate and placed in distinct columns on the roll. This advises the tax payer of the nature of the several demands that are made upon him, and enables him to pay or tender the amount of any one the justice and legality of which he concedes, and to decline to pay any other if he considers it unwarranted. Such provision is mandatory, and if not obeyed, the taxes cannot be enforced.’ A custom to blend them cannot make the roll valid.* But separating the taxes when the statute does not require it will not affect the roll ; as this deprives no one of any right whatever.® Excessive taxes. All statutes are mandatory which express- ly or by implication limit the amount of taxes which may be levied. When these are exceeded by a sum which is spread upon the whole roll, the whole levy is void. The levy is in excess of the jurisdiction of the officers, and will be as deficient in the legal 1 Alvord ». Collins, 20 Pick., 418; Hubbard ». Winsor, 15 Mich., 146; Smith . Crittenden, 16 id.,152. The case of Cardigan o. Page, 6 N. H., 182, is contra. 2See Eddy o. Wilson, 48 Vt., 362. The warrant is sometimes extended or renewed, under statutes providing therefor. See Griswold v. School District, 24 Mich., 262. 8 Thayer v. Stearns, 1 Pick., 482; Case v. Dean, 16 Mich., 12. 4State o. Falkinburge, 15 N.J., 820; Camden & Amboy R. R. Co. v. Hille gas, 18 id., 11. 5 Wall ». Trumbull, 16 Mich., 228: compare Torrey v. Milbury, 21 Pick., 64 296 LAW OF TAXATION. [cH. XIIL competency to make out a valid charge, as if made without any authority whatever. This would not defeat a separate tax placed in a separate column on the roll, but it would invalidate whatever is blended with the excessive levy, and incapable of being sepa- rated. Excess in a levy may happen from a sum which has been voted for an unauthorized purpose being included with others that are authorized, or from imposing more than is permitted for lawful pur- poses, or from the addition of unauthorized charges, or from errors of the officers, by which either the aggregate is made too large, or individuals are charged more than their proportion. In the latter case the individual taxes which were unjustly increased would alone be void} in the others the whole levy.’ Some dis- position has been manifested to save the taxes when the excess was comparatively insignificant, on the maxim, de minimis lex 1« The authority to impose taxes, while it is an inherent and essential power of government, which is fully recognized in our constitution and conferred on the legislature in clear and comprehensive terms, is nevertheless a delicate trust, nearly affecting the rights and interests of the citizens, and to be exer- cised carefully, and within the exact limits which are prescribed by that clause in the frame of government which creates the power and defines the extent to which the legislature may go in its exercise. If they have execeded it, if the constitutional boundary has been overstepped, there cun be no doubt of the right of the citizens to resist such unauthorized exercise of power, and of the duty of this court to declare such legislative action void, and to protect all persons against its unlawful exactions.” Bigelow, Ch. J.. Commonwealth ». Savings Bank, 5 Allen, 428, 430. See Stetson v. Kempton, 13 Mass., 272; Libby o. Burnham, 15 Mass., 144. In Joyner ». School District, 3 Cush., 567, 572, where an excessive school tax was levied, Dewey, J., says: “ Hach mem- ber of a school district has a right to insist that no more than his proportional amount be demanded of him,.to pay the debts of the school district, that the assessments shall be in a legal form, and in a form that will also compel the other members of the district to pay their proportionate share of the corporate debts.” See also School District ». Merrills, 12 Conn., 487; Hubbard ». Brainard, 35 id., 568; First Ecclesiastical Society ». Hartford, 88 id., 274; Elwell v. Shaw, 1 Greenl., 389; Huse v. Merriam, 2 id., 375; Lucy ». Davis, 4 Mich., 140; Gerry ». Stoneham, 1 Allen, 319; Goodrich v. Lunenburg, 9 Gray, 88,41; Stone o. Bean, 15 id., 42; Kemper v. McClelland, 19 Ohio, 308 324; Mason 2. Roe, 5 Blackf., 98; Hutchins v. Doe, 3 Ind., 528; Drew v. Davis, 10 Vt., 506; Jobnson ». Colburn, 86 id., 693; Wells v. Burbank, 17 N H., 398; Kinsworthy v. Mitchell, 21 Ark., 145; Bucknall ». Story, 36 Cal. 67, 72;- Tucker v. The Justices, 34 Gev., 370. As to levy of excessive fees, see Mosher v. Robie, 11 Me., 185; Stetson v. Kempton, 18 Mass., 272; Buell o. Irwin, 24 Mich., 245; Prindle ». Campbell, 9 Minn., 212. CH. X11. | THE COLLECTOR'S WARRANT. 297 non curat. Of this maxim it has been said in a case where a tax was but slightly in excess of authority: “The maxim is so vague in itself as to form a very unsafe ground of proceeding or judging; and it may be almost as difficult to apply it as a rule in pecuniary concerns as to the interest which a witness has in the event of a cause; and in such case it cannot apply. Any interest excludes 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 the assess- ors.”? The like rule has been adopted in another case, which has held that any addition perceptibly increasing an individual tax avoids it.? 1 Mellen, Ch. J., in Huse v. Merriam, 2 Greenl., 375, 876. ? Case vo. Dean, 16 Mich., 12. But an unintentional error may not have this effect. Kelley v. Corson, 8 Wis., 182; O’Grady v. Barnhisel, 23 Cal., 287, 296. See State v. Newark, 25 N. J., 399. In Iowa there is a statute that a tax sale shall be upheld if any portion of the tax for which the sale was made was legal. See Parker ». Sexton, 29 Iowa, 421. Where part is legal and part is illegal the former will be sustained if they are capable of being distinguished. See O'Kane »v. Treat, 25 Il]., 557; Briscoe v. Allison, 48 id.,291; State o. Allen, 43 id., 456; Allen ». Peoria, etc., R. R. Co., 44 id., 85; People v. Nichols, 49 id., 517; Mix o. People, Sup. Ct. Ill. (1875), 7 Chicago Legal News, p. 2; State v. Plainfield, Sup. Ct. N. J. (1875), 12 Albany Law Journal, p.1%2. And as to sale on judgment for taxes, see Reeve v. Kennedy, 48 Cal., 643. An ex- cess inserted to cover possible contingencies in collecting, held not to render assessors liable in trespass where they had acted in good faith, and only erred in judgment. Colman v. Anderson, 10 Mass., 105, 117, 120. 298 LAW OF TAXATION. [cH. XIV. CHAPTER XIV. THE COLLECTION OF THE TAX. Summary remedies necessary. Very summary remedies have been allowed, in every age and country, for the collection by the government of its revenues. They have been considered a matter of state necessity. Without them it might be possible for defeated and dissatisfied parties to cripple and, possibly, to break up the government, by depriving it of the resources for continuing its existeuce until they could be gathered in by the slow pro- cesses which are available to private parties. It has been shown in the preceding chapters, that the invaluable principles of the common law are not supposed to be violated by a resort to sum- mary proceedings in these cases. Summary processes are not necessarily unjust. They would be so if they deprived the party of a hearing, or if they precluded the opportunity for a patient and deliberate examination of the questions upon which his rights depend, before such rights could be finally concluded and cut off. But this it is not the design of legitimate tax legislation to ac- complish in any case. It may reverse somewhat the course of ordinary proceedings to enforce rights at the common law, but it can never finally and conclusively condemn without a hearing. When a tax is duly and properly levied? it is to be collected after some method prescribed by law. The several methods may be classified as direct, when the taxes are demanded from the par- ties taxed in person, or enforced against the property on which they are laid; and indirect when, for convenience, they are collected of others than the persons upon whom the burden is in the end to rest. All such taxation as comes in this second class, seems to require no special mention. But provision is sometimes made by law under which other taxes are, for the convenience of the government, indirectly collected. A government which taxes 1“Tevy,” as applied to a tax, ‘imports the ascertainment of the amount to be raised, and the performance of such acts as would authorize the tax col- lector to proceed to collect.” Handy, J., in Moore v, Foote, 32 Miss., 469, 479. CH. XIv.] THE COLLECTION OF THE TAX. 299 the salaries of its officers might be its own collector; first deduct- ing the tax and then paying over the remainder; and the like might be provided for in any case where moneys were to be paid over by the government itself.1 So a convenient method of col- lecting taxes on the dividends or other receipts of shareholders from the profits of corporations, or on payments to creditors, may be to make the corporation itself the collector, and require it to deduct the tax, and pay it to the government before paying over to the parties thus taxed.” The methods of collecting taxes which have been provided for under various statutes are :° 1. By suit. 2. By the arrest of the person taxed. 3. By distress of goods and chattels. 4, By taking possession of goods and chattels and retaining them until the taxes are paid, or selling them for the payment. 5. By the sale of lands. 6. By imposing penalties for nonpayment. 7. By forfeiting to the government the property upon or in respect to which the tax is payable. 8. By making the payment a condition to the exercise of some lawful righé. ?So a court, where a fund is in its charge, may order the taxes paid out of it before the fund is paid over. 3 Maltby 0. Reading R. R. Co. 52 Penn. St., 140; Haight v. Railroad Co., 6 Wall., 15; National Bank ». Commonwealth, 9 id., 853; United States v. Railroad Co., 17 id., 8322; Minot v. Railroad Co., 18 id., 206, 230. 4An important principle of the common law may also be called an assis- tant in the collection of taxes. It is this: That all contracts and arrange- ments made for the defeat or evasion of the revenue Jaws of a country are illegal, and the courts will give the parties no remedy in respect to them. Clugas v. Penaluna, 4 T. R., 466; Waymell 0. Reed, 5 id., 599; Cope v. Row- “Jands, 2 M. & W., 149; Smith ». Mawhood, 14 id., 452; Favor o. Philbrick, 7 N. A, 326, 340; Harris v. Runnels, 12 How., 79. Zee, also, Bancroft ». Dumas, 21 Vt., 456; Alexander v. O'Donnell, 12 Kan., 608; Howard ». First Inde- pendent Church, 18 Md., 451. It is necessary, perhaps, that both parties should have knowledge of the intent to violate the law; for if one be inno- cent there is no reason why the guilty intent of the other shall cause him to suffer. See Briggs o. Lawrence, 3 T. R., 454; Lightfoot o. Tenant, 1 B. & P., 551, 556; Clugas ». Penaluna, 4 T. R., 466; Kreiss v. Seligman, 8 Barb., 439; Ritchie v. Smith, 6 M., G. & Scott, 462; Pellecat o. Angell, 2 Cromp. M.&R, 800 LAW OF TAXATION. [CH. XIV. These will be briefly considered in their order.’ 1. Collection by suit. It has been shown that taxes are not debts in the ordinary acceptation of that term, and that the statutory measures are to be resorted to for their collection. Generally no others are admissible? But the remedy by suit may be given by statute either directly or by implication. If no specific remedy is expressly given, or only an imperfect or in- adequate one, the presumption that a remedy by suit was in- tended is but reasonable’ Nothing need be said regarding the proceedings in such suits beyond this: that they would take the ordinary course prescribed by law for the collection of money demands, except as the statute may have otherwise provided.* 311; Foster v. Thurston, 11 Cush., 822; Webster v. Munger, 8 Gray, 584; Cambioso v. Maffitt, 2 Wash. C. C., 98; Armstrong v. Toler, 11 Wheat., 258. The principle does not apply to contracts made in evasion of the laws of a foreign country, but it does apply to all contracts made abroad to be per- formed here. See cases above cited. Also Holman ». Johnson, 1 Cowp., 341. And compare Dater v. Earl, 8 Gray, 482, with Cambioso v. Maflitt, 2 Wash. C. C., 98. \ Farming out the revenue for collection, has been a favorite method in some countries. It consists in putting the collection into the hands of contractors, who are to return to the treasury a certain net result, having the remainder for their own compensation. Such asystem, by making it the personal inter- est of those who are to administer the tax laws to render them as productive as possible, might increase the public revenues both by inducing a more vigil- ant search for subjects of taxation, and by ensuring more strict enforcement of collections; and Bentham has defended it on these grounds. Works, Edinb. ed., Vol. 2, p. 241-251. But it is so much liable tw abuse and oppres- sion as to be generally condemned. Before the Revolution in France it was estimated that of the taxes extorted from the people, not more than one fifth was paid into the public treasury! The farming of the revenue would not be even proposed in America; much less tolerated. 2 Ante, page 13. It is no defense to a suit to collect a tax that the relative valuations between individuals are unequal. “If an assessment can be set aside and the right to collect taxes defeated by proof of this kind, there never was and there never will be a valid assessment in the state, for it is impossible to find two persons who will concur in all respects in their estimate of a par. ticular piece of property, and of its value compared to another piece.” Rich- zrdson, J.,in Potosi ». Casey, 27 Mo., 872, 873. A fraud in the valuation, may, however, constitute a defense. State v. Central Pacific R. R. Co., 7 Nev., 99; Western R. R. Co. 0. Nolan, 48 N. Y., 518. * Dillon Mun. Corp., § 658. See Territory v. Reyburn, McCahon, 134; State v. Williams, 8 Texas, 384; Houston, etc., R. R. Co. w. State, 39 id, 148. 4 Where action is given for taxes, interest is not recoverable, unless the statute CH. XIV.] THE COLLECTION OF THE TAX. 301 2. By the arrest of the person taxed. We refer here to arrest as the ordinary proceeding, and not in the course of prosecution for a penalty or forfeiture. The early state laws authorized pro- cess against the body of the person taxed, as an ordinary process for all personal taxes.1_ They have generally been repealed. It is only needful to say of such proceedings, that the officer must be sure of his process and follow its command. What is said under the next subdivision regarding process is applicable here. 3. By distress. To authorize distress, the collector must have gives it. Danforth ». Williams, 9 Mass., 824. Tax assessed against a person by name after his death. This is no debt against the administrator on which suit can be brought. The assessment should have been against the heirs or whoever else was in possession. Cook ». Leland, 5 Pick., 286. The statute gave a suit for taxes against anyone who should remove out of the precinct after assessment. This applied to the case of one who left, but with the intention of returning after six months. Houghton v. Davenport, 23 Pick., 2385. Where. by statute the personalty of an estate was to be assessed to the executor or administrator, if it is taxed to “ the estate’? of the deceased, a snit will not lie against the administrator for the tax. Wood »v. Torrey, 97 Mass., 321. One cannot be made liable for a tax assessed after he has removed from the municipality, even though the vote granting the money was had while he was aresident. Wade v. First Parish, 8 Cush., 267. A collector who pays over a tax without having collected it, may recover by suit of the taxpayer. Mc- Cracken »v. Elder, 34 Penn. St., 289. Compare Wallace’s Estate, 59 id., 401. That taxes must be demanded before suit van be brought, see Thompson v. Gardner, 10 Johns., 404; St. Anthony, etc., Co. ». Greely, 11 Minn., 321, 325. It may be otherwise under a statute of Arkansas. Kinsworthy v. Mitchell, 21 Ark., 145; Garbaldi v. Jenkins, 27 id., 456. The words “ordinary process of law,” in the Missouri tax laws, do not mean an ordinary judgment and ex- ecution, but such process as is adapted to enforce a lien or specific charge upon the property assessed. Neenan v. Smith, 50 Mo.,525. Contractors for municipal improvements are under some statutes allowed to bring suit in their own names for the collection of the assessments made to cover the cost of such improvements. The case last cited was one of this kind. ! Arrest is allowed usually only after a failure to find property. Lothrop ». Ide, 18 Gray, 93; Hall». Hall, 3 Allen, 5. Arrest after return day sustained. Bassett ». Porter, 4 Cush., 487. Asto relief from arrest,see Aldrich v. Aldrich, 8 Met., 102. It is competent to provide for enforcing license taxes, by impris- onument of the delinquent. Commonwealth o. Byrne, 20 Grat., 165 (citing Barrett »v. Porter, 4 Cush., 487; Daggett ». Everett, 19 Me., 378; Rising ». Granger, 1 Mass., 47; Appleton ». Hopkins, 5 Gray, 580; Kingman »v. Glover, 8 Rich., 27). And see post. Chapter XIX. 302 LAW OF TAXATION. [CH. XIV the proper legal warrant. Of this, sufficient has been said in the preceding chapter. Collection by distress has been objected to, as a process which condemned the party before he had been heard, and proceeded to execution without trial. In a very important sense, the objection states the case with accuracy. The process, in the nature of an execution, does issue, at least under some tax laws, before the liability of the party has been finally and conclusively determined. But, as has already been said, this does not deprive a party aggrieved of his remedy. It only makes his remedy wait the superior urgency of government necessities. It has been well said of collection by distress: ‘‘This method of col- lecting taxes is as well established by custom and usage as any principle of the common law. A similar practice prevailed in all the colonies from the first dawn of their existence; it has been continued by all the states since their independence, and had existed in England from time immemorial. Indeed, it is necessary to the existence of every government, and is based upon the principle of self preservation. * * * JI think, there- fore, that any legal process that was founded on necessity, has been consecrated by time, and approved and acquiesced in by universal consent, must be an exception to the right of trial by jury, and is embraced in the alternative—the law of the land. Such I consider to be the summary proceedings allowed in the collection of taxes.”* No judge, and no writer ever presented the point with more terseness, more precision or more accuracy. But it has sometimes been deemed necessary, after giving the ordinary remedy by distress, to go further. That remedy will not justify any invasion of the rights or any interference with the property of others than the very persons upon whom the tax is imposed. If the property of another is distrained, the officer may be sued in trespass, or the property may be taken from him on writ of replevin.® Under pretense of this right, it has been found 1A municipal corporation cannot provide for such a warrant by ordinance, without statutory authority for the purpose. Bergen 0. Clarkson, 6 N. J., 352. 2 Nott, J.. in State v. Allen, 2 McCord, 55, 60. See also Harris v. Wood, 6 T. B. Monr.,.641, 648; McCarrol o. Weeks, 5 Hayw., 246; Willis o. Wetherbee, 4N.H. 118; New Orleans v. Cannon, 10 La. An., 764. 3A chattel belonging to A. cannot be taken for a tax against B., even CH. XIVv.] THE COLLECTION OF THE TAX 803 possible seriously to embarrass the officer in the performance of his duties, by means of unfounded claims, ur those the officer believes to be such. To preclude this, statutes have, in some cases, been passed, taking away the ordinary remedies against the collector, and leaving the claimant to some other remedy. Some of these statutes, which merely prohibit replevin being brought against the officer, are referred to elsewhere. The New York revised statutes authorized the collector to seize and sell not only goods and chattels of the party taxed, but any goods and chattels in his possession, and declared that “no claim of property made by any other person shall be available to prevent a sale.” This statute was enforced without question of its validity.t A similar statute in Michigan was strongly contested as not being due process of law, and was upheld by a divided court? In Pennsyl- vania a statute has been enforced which empowered the collector to distrain the property of an occupier of land wherever found, for the satisfaction of a tax assessed in respect to the land against the owner.’ So it has been held competent by law to make a purchaser of land, who enters into possession, chargeable per- sonally with the tax previously assessed. These are illustrations of the stringent rules which are sometimes applied in cases of taxation. though it formerly belonged to B., and is still in his possession. Daniels 9, Nelson, 41 Vt., 161. 1Sheldon v. Van Buskirk, 2 N. Y., 473. No point was made of the consti- tutional competency of such legislation. 2 Sears v. Cottrell, 5 Mich., 251. 3 McGregor v. Montgomery, 4 Penn. St., 237. The warrant is no lien upon personalty until actual seizure. Moore v. Marsh, 60 Penn. St., 46. 4Henry v. Horstick, 9 Watts, 412. See also Smeich v. York County, 68 Penn. St. 439. But an express statute would be requisite to create such a liability. Atlantic, etc., R. R. Co. v. Cleino, 2 Dillon, 175. Where property, after aliena- nation is allowed by the vendor to remain on the tax books of the county, and he fails to avail himself of the means provided by law to have the assessment corrected, he is liable for such taxes, and they may be recovered by suit. County Commissioners v. Clagett, 31 Md., 210. Where, on a tax warrant issued by assessors having jurisdiction, and fair on its face, bank shares are sold, the cashier of the bank is justified in issuing new certificates to the purchaser, who, thereby, becomes entitled to the dividends, whether the tax was rightfully assessed or not. Smith o, Northhampton Bank, 4 Cush., 1. 804 LAW OF TAXATION. [CH. XIV. It is very proper that a demand of the tax should be made a prerequisite to the levy by distress ;! and it is not often that stat- utes are passed which are so little regardful of the rights of the citizen, as to authorize distress without the persons taxed being at least called upon, and given the opportunity to pay without the expense and annoyance of a levy. A requirement by statute of dernand or personal notification is imperative, and distress with- out it would be illegal.? Statutes regarding notice, and limiting the time within which sale of the distrained property shall be made, are also imperative, and the officer becomes a trespasser ab enatio, if he proceeds to a sale in disregard of them.’ ‘Such a demand is not essential before levy of distress unless the statute requires it. Ives v. Lynn, 7 Conn., 504. ?Cones »v. Wilson, 14 Ind., 465, 466. The collector’s authority must be strictly pursued. Bishop ». Lovan, 4 B. Monr., 116. Where the sheriff was to distrain for taxes, if on presenting an account of the taxes and offering a receipt they were not paid, a distress without these was illegal. Hoozer ». Buckner, 11 B. Monr., 183, 184. See to the same point Johnson v. McIntire, 1 Bibb, 295; Atkinson v, Amick, 25 Mo., 404; Thompson »v. Rogers, 4 La., 9; Burd v. Ramsey, 95. & R., 109; St. Anthony, ete., Co. 0. Greely, 11 Minn, 321; Bonnell v. Roane, 20 Ark., 114; Moulton v. Blaisdell, 24 Me., 283; Ives ». Lynn, 7 Conn., 504; Harrington ». Worcester, 6 Allen, 576. A demand at the last and usual place of abode of a nonresident in the tewn, if he has no agent there, is sufficient to justify a subsequent seizure and sale of his goods under the statute which requires that “the collector shall, before distraining the goods of any person for his tax, demand payment thereof of such person, if: to be found within his precinct.’ King ». Whitcomb, 1 Met., 828. Where the law required supervisors, before issuing duplicate and warrant for the col- lection of road taxes, to give uotice to all persons rated for such taxes, by advertisement or otherwise, to attend at such times and places as such super- visors may direct, so as to give such persons full opportunity to work out their respective taxes; held to be mandatory and a condition precedent. Mil- ler v. Gorman, 38 Penn. St., 309. 5 The statute required property seized for taxes to be sold within four days Keeping it longer held to make the officer a trespasser ab initio. Brackett o Vining, 49 Me., 356. Sale void which is made after the time thus limited. Pierce v. Benjamin, 14 Pick., 356; Noyes v. Haverhill, 11 Cush., 338. As to defects in a notice of sale that do not avoid it, see Barnard ». Graves, 13 Met., 85; Scott o. Watkins, 22 Ark., 556. Where the statute provides for notice, the party cannot be in default until he has received it. Smith o. State, 48 Ala, 344. A premature levy by a collector without sufficient cause, renders him liable in trespass. Veit v. Graff, 37 Ind., 53. Where the collector is required to appoint a time and place to receive payment of the tax, if the tax payer when called upon expresses a purpose not to pay at all, the collector need not CH. XIv.] THE COLLECTION OF THE TAX. 3805 4, By the detention of goods and chattels. We refer here, not to the proceedings in which goods are distrained or seized for forfeitures or penalties, but to those under which goods, in respect to which the tax is demanded, are required to pass through the hands of government officers, who are to exact the tax before the owner or consignee is entitled to their custody. Cases of this na- ture arise under the laws for the collection of customs duties, but do not require special mention. 5. By sale of lands. Taxes are not commonly a lien upon lands, unless made so by express legislative authority.! It is com- petent by legislation to declare that they shall constitute a lien, and as such take precedence of all other liens and claims what- ever.” And where the tax is assessed upon the land itself — not upon any particular interest in it—and when all the legal reme- dies, if any, for collection of the tax without resort to the land are exhausted, leaving the land liable to sale, the assessment acquires the full force of a lien, overriding all other claims,’ since a sale name time and place for the purpose, but may levy at once. Downer v. Wood- bury, 19 Vt., 329; Wheelock v. Archer, 26 id., 380; Hurlburt o. Green, 42 id., 316. In Vermont it is decided that provisions in a statute requiring the col- lector to keep a distress four days before advertising, and to advertise six days, do not restrict him to this exact time, though he may not sell in less. Clem- ons v. Lewis, 36 Vt., 673. That a levy on personalty is prima facie a satisfac- tion of a tax, see Henry v. Gregory, 29 Mich., 68. In Indiana there seems to be a lien for taxes on personalty from the time when the duplicate comes to the collector’s hands. Barber ». Morton, 19 Ind., 146. And this would not be divested in favor of an execution subsequently issued. Evans v. Bradford, 85 Ind., 527; McNeil o. Farneman, 37 id., 203. 1 Hine v. Levee Commissioners, 19 Wall., 655. In Kansas under the ordin- ary tax warrant, lands cannot be sold. Kirkwood v. Magill, 6 Kansas, 540. That is the general rule throughout the country. 2 Wallace’s Estate, 59 Penn. St., 401, 404; Durgan’s Appeal, 68 id., 204. A provision that a tax shall be preferred to all judgments, executions, incum- brances and liens of any description whatsoever, and shall be a lien on the real estate, does not make it alien on the personal estate also. Anderson v. State, 23 Miss., 459; Bailey o. Fuqua, 24 id., 497. In Indiana, lands are liable for the poll tax, and tax on personal property assessed against the owner, not- withstanding his title is afterwards extinguished by the foreclosure of a mort gage of older date than his purchase. Isaac 0. Decker, 41 Ind., 410. 8See Hutchins v. Moody, 30 Vt., 655; Same v. Same, 34 id.. 483; Post o. Leet, 8 Paige, 337; Kern v. Towsley, 45 Barb, 150; Dowdney v. New York, 54.N.Y., 186; Cochran ». Guild, 106 Mass, 29. Compare Holmes »v. Taber, 9 Allen, 246. 20 306 LAW OF TAXATION. [CH. XIV. of the lands, unless the tax is voluntarily paid, must take place in the ordinary course of law, and extinguish other liens and incum- brances.1 A change in the ownership would not affect such a lien, the law taking no notice of such change.? Where, as is often the case with the lien for special assessments, provision is made for its enforcement by judicial proceedings, mere delay in taking steps for the purpose will not extinguish it® Sometimes by statute a particular day is named, from which a tax shall be deemed a lien upon lands, and this, it is held, will determine, as between vendor and vendee, which should pay the tax in the absence of any stipulation on the subject.* In California a lien for taxes relates to the time of the assessment. Reeve a. Kennedy, 43 Cal., 643. 'Parker v. Baxter, 2 Gray, 185. See Dale v. McEvers, 2 Cow., 118; Bris- coe 2. Coulter, 18 Ark., 423. Where separate interests are taxed, previous liens would not be reached by the tax unless the statute should so declare. See Appeal of Pittsburgh, 40 Penn. St., 455; Alleghany City’s Appeal, 41 id., 60; Cadmus v. Jackson, 52 id., 295. 2 Oldham ». Jones, 5 B. Monr., 458, 465; Covington a. Boyle, 6 Bush, 204. 3Swan v. Knoxville, 11 Humph., 130, 182. An act of congress made a tax a lien on land for two years. Held that this did not preclude the land being sold for the tax after the two years had expired, the title not having changed. Holden v. Eaton, 7 Pick., 15. Where by law taxes are a lien on land, but sub- ject to be divested by a subsequent judicial sale, except as to any sum which the proceeds of the sale should be insufficient to pay, a sale sufficient prima facte to pay all taxes, and the bringing the money into court, divests the tax lien, though the money is not applied to the satisfaction of the taxes. Smith 2. Simpson, 60 Penn. St., 168. A personal action brought for a tax does not divest the lien. Eschbach ». Pitts,6 Md., 71. If a time is limited by statute for proceedings to enforce a lien, it is sufficient if they are begun within the time, and they may proceed to judgment afterwards. Randolph »v. Bayne, 44 Cal. 366; Dougherty v. Henarie, 47 id.,9; Himmelman ». Carpenter, 47 id., 42. That a statute giving a lien is to be strictly construed, see Creighton v. Manson, 27 id., 618. 4Barrington ». Hilliard, 27 Mich., 271. See Rundell ». Lakey, 40 N. Y., 513; Gromley’s Appeal, 27 Penn. St., 49; Densmore ». Haggarty, 59 id., 189. As to the liability as between tenant for life, and remainder man, see Plymp- ton v. Boston Dispensary, 106 Mass., 544. The following are decisions as to the liability to taxes under special agree- ments: A clause in a mortgage that the mortgage moneys should be paid “without any deduction, defalcation or abatement to be made of any thing for or in respect to any taxes,” held to refer to taxes on the land and not on mortgage security. Clopton v. Phila., etc. R. R. Co., 54 Penn. St., 356. A covenant to pay “all assessments for which the premises shall be liable,” will CH. xIv.] THE COLLECTION OF THE TAX. 807 Municipal corporations, of course, have no authority to create liens, by ordinance or otherwise, when none has been expressly conferred upon them.! Return of ‘No Goods,” etc. Where a tax against lands is assessed to a resident, and isa personal charge against him, the statutes, with almost unvarying uniformity, have made the per- sonal property of the person taxed the primary fund for the pay- ment, and have given a remedy for enforcing payment from it. Until that remedy has been exhausted, no authority exists to go further. It is also customary to allow a certain time after the levy of a tax on nonresident or unseated lands, before any pro- ceedings are taken against the land. 'T'o authorize further pro- ceedings in either case, there must be the proper official evidence that in the one case the remedy against the personalty is exhausted, and in both that the taxes are still unpaid.* This evidence will consist of such official return, affidavit, or other document by the collector, as the statute may indicate. This document will be void if made prematurely ;* and it will be void, also, if it fails to embrace an assessment only authorized by a law passed after the covenant. Post v. Kearney, 2 N. Y., 394. One who conveys by warranty after an assess- ment is completed, is liable on his covenant for a tax laid in pursuance of this assessment. Held, therefore, the vendee who had paid it might recover the amount of the vendor’on an agreement of the Jatter to repay ‘‘in case he was legally liable to pay it’ Rundell v. Lakey, 40 N. Y., 513. 1 Philadelphia v. Greble, 88 Penn. St., 339. As to what will give the power, see Eschbach 2. Pitts, 6 Md.,71. The lien cannot exist where the statutory steps have not been taken, and a simple allegation in a proceeding to enforce a lien that the taxes are due and unpaid, is not sufficient to show a lien. Lou- isville v. Bank of Kentucky, 8 Met., Ky., 148. As to the liability of land for personal assessments in Indiana, see Bodertha v. Spencer, 40 Ind., 353. 2See Thatcher v. Powell, 6 Wheat., 119; Jones v. McLain, 23 Ark., 429; Scales ». Alvis, 12 Ala., 617; Francis v. Russell, 5 Hayw., 294; Scheffer o. People, 60 Ill., 179; St. Anthony, etc., Co. 0. Greely, 11 Minn., 321; Kelley o. Craig, 5 Ired., 129; Harrington v. Worcester, 6 Allen, 576; Huntington ». Brantley, 83 Miss., 451; Sharp v. Johnson, 4 Hill, 92; Ring v. Ewing, 47 Ind., 246. No title can be made to lands on a sale for taxes if personalty is not sought for. Catterlin v. Douglass, 17 Ind., 2138. 3 Ronkendorff v. Taylor’s Lessee, 4 Pet., 849. Where the law gave a non- resident owner nine months to pay taxes in, before they were to be returned by the collector as delinquent, a return one day before the nine months were fully completed, was held to make void the proceedings. Flint v. Sawyer, 30 Me., 226. A similar ruling was made in Hobbs 2. Clements, 32 id, 67. A 808 LAW OF TAXATION, (CH. XIV. set forth all the facts that the statute requires shall be shown by it. If the collector is required to demand the tax, his return, it would seem, should show that he has done so; if he is required to make collection by distress and sale of goods, if any can be found to levy upon, there should be such a showing of diligent search for goods, and failure to find them, as would be required of officers to whom executions are committed for service. In other words, the return should show full and complete compli- ance with all the conditions which, under the statute, are to pre- cede a resort to the land.1 Such is unquestionably the general rule;? though doubtless if the statute should prescribe the form of a return, it would be sufficient for the officer to follow that.’ But the decisions are justly very rigid in requiring conformity to the statute in the substantial matters of the return.*’ The return, if in conformity to the law, is not only a support to subsequent proceedings, but is evidence, also, in favor of the officer himself. sale of land is not to be made where the taxpayer is not in default. There- fore, if he tenders the tax, his land is not subject to sale, even though at the time, the collection of the tax is enjoined in a suit to which the taxpayer is nota party. Jones v. Burford, 26 Miss., 194. Fora decision that, under the statute in question, resort might be had, either to the land or to chattels, see Den v. Carron, 26 N. J., 228. ‘A recital in a collector’s return that, “not knowing of any goods or chat- tels, etc.,” is not equivalent to a return that none could be found. Jones », McLain, 23 Ark., 429. But it is sufficient to throw the burden of proof on the taxpayer, to show that there was enough of personalty to satisfy the tax. > Where the statute provided that “when the delinquent has no goods ank chattels within the county, then the lands and tenements of said delinquent may be sold,” etc., held, that if the delinquent were shown to have such goods and chattels it was fatal to a sale of the lands. The delinquent’s knowl- edge of the sale, and assent to it donot bind him. Scales ». Alvis, 12 Ala. 617; citing Jackson v. Sheppard, 7 Cow., 88. ? Such has been the ruling of the supreme court of Illinois. Taylor v. Peo- ple, 2 Gilm., 849; Job v. Tibbetts, 5 id., 376, 382. Judge Pope, the federal district judge, held otherwise. Mayhew »v. Davis, 4 McLean, 213. 4See Harmon 2. Stockwell, 9 Ohio, 93; Harrington v. Worcester, 6 Allen, 576; Sharp v. Johnson, 4 Hill, 92; Spellman ». Curtenius, 12 IIL, 409; Homer v. Cilley, 14 N. H., 85; Hannell v. Smith, 15 Ohio, 184; Tallman v. White, 2 N. Y., 66. A return not made in the time prescribed by statute, held not to support subsequent proceedings to forfeit the land. Hopkins v. Sandidge, 31 Miss., 668, 676. 5 Bruce v. Holden, 21 Pick., 187; Brainerd v. Graves, 13 Met. 85. See cases cited, ante, p. 185, 186. CH. XIV.] THE COLLECTION OF THE TAX. 309 Under some tax laws the same officer who collects the taxes is empowered to make sale of the lands of delinquents. In such cases no return is required, though the filing of some official doc- ument showing the delinquency is sometimes provided for. Such a document takes the place of a collector’s return, and will be governed by the rules above laid down. If none is required by law, the collector is allowed to proceed and sell lands on his own knowledge of the delinquency. How far his proceedings will be open to question afterwards, must depend, to some extent at least, on the force given by statute to such report or certificate of sale as he is subsequently required to make, or to the official conveyance. The proceedings in making sale of lands for taxes, the privilege of redemption, and the conveyance when redemption is not made, require, and will receive, separate consideration. 6. By the imposition of penalties. In tax laws penalties are imposed for mere delinquencies, i in order to hasten payment, and they are also imposed asa punishment for frauds, evasions, and neglect of duty. In some cases, also, special inducements are held out to prompt performance of duty, by making deductions in case of early payment. Great use is made of penalties in the federal tax laws, especially under the internal revenue laws, and the laws for the collection of customs duties. The justification for this is the supposed necessity of the case, and the absolute impossibility of securing a collection of the revenues without resort to these extreme meas- ures.” 1 Sprague v. Bailey, 19 Pick., 486. 2A charge by District Judge Benedict, of the southern district of New York, to the grand jury, and given in an appendix to 6 Blatchford’s Reports, is deserving of being copied here, for the reasons it gives for stringent meas- ures in revenue cases: “The war, which decided the question whether a government framed like ours had the ability to quell by force of arms a great rebellion, raised another question, which is now in process of solution, namely, whether such a gov- ernment can surely provide for the payment of the interest upon a great debt. The interest upon the public debt must be obtained by taxation, and this tax- ation, under the most favorable circumstances, must be heavy. It will become odious and intolerable, if it is to be borne by the honest and well disposed classes alone, and avoided by those willing to grow rich at the expense of their fellow citizens, through fraudulent evasions of the law. This latter 310 LAW OF TAXATION. [CH. XIV. In some cases they are imposed by the taxing officers, in others they are recovered by suit, or indictment. Under the state laws class, numerous and powerful, both socially and politically, has, from the beginning, confronted the government in its efforts to collect the revenue At first, the government attempted to compel their obedience by seizure of their property, and large quantities of merchandise detected in the act of escaping taxation was forfeited and sold. But the attempt was a failure; the frauds increased both in number and in magnitude, and the government was compelled.to turn to its last resort — the criminal jurisdiction of its courts. It is now, therefore, here and elsewhere, engaged in the effort to check these frauds by means of criminal prosecutions —the indictment, trial, conviction and imprisonment of defrauders of the revenue. Inasmuch then, as no man can be tried until accused by a grand jury, the government and the com. munity, of which the government is but the representative, now turns to the grand juries of the land, and asks the indictment of every man, whether high or low, rich or poor, who is found to be engaged in fraudulent evasions of legal taxes. Time would fail me to describe to you the various forms which these frauds assume; but it is my duty to put you in possession of what I have understood to be the facts in regard to some transactions which must come before you, and to allude in general terms to others which your own inquiries will expose. ° “TJ begin with what have been designated the drawback cases. These cascs have been the subject of examination in the adjoining district, and are trans- ferred to this district because most of the transactions took place here. They are frauds perpetrated under cover of the provisions of law which enable a person who has paid taxes upon manufactures which he afterwards exports, to receive back the taxes which he has paid, upon proving actual exportation of the goods. To obtain this drawback, a set of papers is necessary in every case, consisting first of an internal revenue collector’s certificate, that the tax on the goods has been paid; second, a certificate of the collector of customs, that such goods appear on a ship’s manifest, on file in the custom house, as actually exported; third, an affidavit by the shipper as to the identity of the goods upon the manifest and the goods upon the tax receipt; fourth, a certifi cate of an internal revenue collector, that a proper bond to secure the govern- ment against any relanding of the goods has been filed with him. These papers must be certified to at the custom house, and then go to the department at Washington, to be examined there. If found correct, a check for the anivount of tax, drawn to the order of the shipper, upon the treasury, is re- turned. Numerous sets of such papers, representing sums of from $300 to $7,000 each, all false, no such goods having been exported, there being no such shipper, and no such manifest on file, the bonds being fraudulent, the signatures forgeries, and the affidavits perjurics, have, within a space of six months time, passed through the custom house here and been certified; have then passed through the department at Washington and been there ap- proved, and corresponding checks have been drawn and paid, every one, or nearly every one, upon a forged indorsement, until the total probably exceeds the sum of $700,009. The fraud, which I am thus enabled to describe because CH. XIV.] THE COLLECTION OF THE TAX. 3ll they are notso common. Where lists or statements are required to be furnished as a basis for taxation, the privilege of being it has already been the subject of examination in the adjoining district, is not disputed, and the money is gone. It will be your duty to say who shall be accused before this court as criminally responsible for the transaction. Some of the parties supposed to have been engaged in this affair are already under bail. One has been brought from Florida; for the arm of the government is long. Others have escaped beyond the seas. It will be your duty, however, to indict all who appear to have been connected in the design, whether present or absent. In your examination of this case, you will have occasion to see with what looseness the public business is sometimes conducted, for it will appear that great numbers of bonds required by law have been accepted as good, without any identification of signatures or of persons, and without any inquiry as to the sufficiency or even existence of the sureties, the greater part being, in fact, executed in fictitious names, or by persons entirely worth- less. It will also appear that the genuine seal of an internal revenue collector can constantly appear upon certificates now claimed to be forged, and that part of the files of the collector’s office, being bonds required by law, can be removed and taken to a neighboring city by persons having no connection whatever with the government, there to be dealt with as unknown parties may desire, and then be returned without objection or remark. I have explained the features of this case to you fully, because you will be called on to act in re- gard to it, and not because it is to any very great extent exceptional. “Tf you extend your inquiries into other departments of the custom house, you will find that similar frauds have been there committed. You will find that in the warehouse department, it has been possible for certain parties to withdraw dutiable goods without payment of any duty, until the loss from a single warehouse has equalled $400,000, according to the estimate of an of- ficial. The parties who committed this fraud walk the streets to-day, well known, but unprosecuted and unpunished, unless the repayment of a part of their great gains is to be called punishment. Nor is the case to which Tam now alluding, and which you will find fully disclosed upon the files of this court, the only one of this class which has occurred, and with a similar re- sult, if I am correctly informed. You may think proper to inquire into them all. Frauds like these are, of course, not to be accomplished without conniv- ance on the part of officials; and you will have occasion, no doubt, to con- sider what persons shall be accused before this court, for giving or accepting bribes. “There is also an abuse at the custom house, proper to be spoken of in this connection, which I notice, by the public prints, is now attracting some atten- tion, and of the evil effects of which the drawback cases will give you pain- ful proof. I refer to the custom of giving and taking gratuities for the per- formance of official duties. Strengthen the hands of the collector, gentlemen, in any effort to stop this steady flow. The law lies at your hands, and it reads thus (Act of March 3, 1863, § 4, 12 U. S. Stat. at Large, 793): ‘If any officer of the revenue * * * shall knowingly accept, from any person engaged in the importation of goods, wares or merchandise into the United States, or 312 LAW OF TAXATION. [CH. XIV. heard in abatement of the tax is sometimes taken away as a pen- alty upon the tax payer for not furnishing it. Perhaps it would interested, as principal clerk or agent, in any such importation or in the en- try of any goods, wares, or merchandise, any fee, gratuity or emolument whatever, such officer shall, on conviction thereof, be removed from office and shall be fined in any sum not exceeding five thousand dollars, or be impris- oned not exceeding two years at the discretion of the court. The 6th sec- tion of the same act is as follows: ‘If any person who shall be engaged in the importation of goods, wares or merchandise, into the United States, or shall be interested, as principal, clerk or agent, in the entry of any goods, ‘wares or merchandise, shalljat any time make, or offer to make, to any officer of the revenue any gratuity or present of any money or other thing of value, such person shall, on conviction thereof, be fined in any sum not exceeding five thousand dollars, or be imprisoned not exceeding two years, at the dis- cretion of the court.’ “The market price of whisky is still less than the first cost of manufacture, with taxes added. From the tobacco trade, honest dealers are fast being driven out. Much of the income tax remains uncollected. The fraudulent bond-maker still plies his busy trade. Men known to have grown rich by il- legal means have escaped even the accusation of fraud, and flaunt their wealth before the public eye. Honest officials have been compelled to leave the ser- vice for want of due support in the performance of their duty, while other officers of the revenue who have remained and dared to endeavor to protect the government have found the very government they sought to serve turned against them and used with effect to accomplish their destruction and dis- grace. In view of a demoralization such as these facts disclose, do you won- der that some men query whether the proper enforcement of revenue laws is possible for such a government as ours, with such a civil service as it has hitherto had? These remarks will have failed of their intended effect, if they have not served to deepen your sense of the responsibility, which rests on you, and to strengthen your determination to discharge yourselves of that responsi- bility in such a manner as to satisfy the proper demands of the community in which you live. To enable you to do this, great powers are given you. No matter within the jurisdiction of the court is exempt from your scrutiny. No man, of whatever degree, can refuse to obey your summons or decline to answer your proper interrogatories. No compromise of a department can have effect to stay your hand. Within your extended sphere you are supreme. Use, then, these great powers freely, examine diligently and inquire widely, but accuse with all due care, mindful always, that the mere examination of a transaction in open court, is often of great public benefit, but, also, mindful that such an examination is often, of itself,a great punishment. It is not your province to try the cases which you may consider. That duty devolves upon the petit jury and the court; but you are diligently to inquire and true presentment make of every offense arising under the laws of the United States which shall be made to appear by reasonable prima facte proof. This duty I charge you to perform, and if to its performance you shall brin g that patience, that intelligence and that good courage which the occasion demands, CH. XIv.] THE COLLECTION OF THE TAX. 313 be more proper to say that his right to be heard is made to de- pend upon this, rot unreasonable condition.! A more common provision is one that adds a penalty to the assessed taxes for neg- lect to pay them in due season. There are some cases in which the right to impose any penalty except on a judicial investigation by a competent court has been denied, as being the imposition of punishment without a trial.? you will render an important service to your fellow citizens, as well as to the government which protects you and under which it is your good fortune to live.” 1See Winnisimmet Co. v. Chelsea, 6 Cush., 477; Otis Co. 0. Ware, 8 Gray, 509; Lincoln v. Worcester, 8 Cush., 55; Porter ». County Commissioners, 5 Gray, 365; Lott v. Hubbard, 44 Ala. 593: State ». Apgar, 31 N. J., 358; Young v. Parker, 33 id., 192. Compare McCormick ». Fitch, 14 Minn., 252. °In Scammon v. Chicago, 44 II], 269, 278, the court held a provision of a statute imposing a penalty of five per centum for delay in making payment of an assessment beyond acertain day to be void. On application for a re- hearing on this point, the following opinion was given by Breese, J.: “On this application for a rehearing, we are referred to the case of Bristol ». The City of Chicago, 22 Ill, 587, as controlling the question of imposing five per cent. on the amount of taxes not paid on or before the 1st day of January in each year. In that case the law authorized the collection of ten per cent. on the amount of the special assessment, in case the owner refused to pay it be- fore the collector filed the delinquent list, on an application for an order of sale, as additional costs. 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. In that case the law was sustained, as it gave that per cent. as additional cost, which was manifestly designed to cover the expense of making and advertising the de- linquent list, together with other expenses and outlays incurred by the appli- cation. “The per cent. imposed in that case was upon a special assessment levied for the improvement uf a wharf in the city. In such cases, after the levy has been made, labor is performed and expenses incurred by the city in com- pleting the improvement, on the faith of the collection of the assessment to meet the outlay ; and it is therefore but reasonable, that the person failing or refusing to pay his assessment, should contribute to the payment of interest which may have accumulated, by delay in paying for labor and material pro- cured by the city for the construction of the improvement. One of the ob- jects in giving costs is to cover expcnses incurred in prosecuting a suit for the recovery of the demand. Hence it is reasonable that the delinquent tax payer should in some mode be required to meet Mieex penne incurred in prose- cuting a suit for the recovery of the amount which remains delinquent, and the same is equally true of unpaid special assessments. “That the legislature may authorize the court to impose and render a judg. dl LAW OF TAXATION. [cH. XIV. But when the penalty is imposed in the course of the proceed- ings to assess, and by officers who, for that purpose, exercise a quasi judicial authority, and where the party is given the oppor- tunity to be heard and to contest his delinquency, either before the assessing officer, or in some form of appeal, the imposition of 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 any opportunity to be heard by the taxpayer. It will be observed that in Bristol’s case the law did not authorize the collector to impose the additional per cent. until he filed his report on the application for the order of sale of the property, and it was then adjudicated upon by the court; while in this case the officer was au- thorized to impose it long before the term of the court at which he is required to file his report of the delinquent list, which is at the term at which he ap- plies for judgment. Had the ordinance in this case only provided for the imposition of this five per cent. at the time of passing the order for the sale of the lands, thus affording the taxpayer an opportunity until that time to pay his tax, and to be heard in the court whether he was liable to the forfeit- ure, this case would then have come within the principle of Bristol’s. “ The facts in this case afford an illustration of the hardship that is liable to occur, from accident or otherwise, by imposing a penalty ata previous time. It appears that there was a mistake of a large amount in the case of the Chamber of Commerce, and before it could be corrected, the first of January had arrived and the penalty was claimed and attempted to be imposed without any fault on their part. To impose such a penalty under these circum- stances, wonld be, to say the least, ahardship and awrong. If, however, the penalty should not be imposed until after the collector’s report is filed on the application for the judgment, then all have a fair opportunity to pay their taxes or to be heard against a forfeiture. We are aware of no case where a forfeiture may be imposed and enforced except by a judgment of a court of competent jurisdiction. If the collector may impose this per cent., he can en- force it by distress and sale of property, without the taxpayer having becn legally adjudicated to have incurred a penalty. When a per cent. is imposed for taking anappeal for delay, or for fail.ng to pay a note due to the school fund, the penalty is imposed by the judgment uf the court and not by the creditor or a ministerial officer. It is believed to be a general rule, without an exception, that forfeiture cannot be enforced except through the judgment of a court of competent jurisdiction, and this is true whether it be called costs, damages, or a penalty. A judgment must be first had before satisfac- tion can be enforced. “We do not, therefore, regard Bristol’s case as governing this, as it is mate- rially different both in the facts and principles involved.” See also Clayton v. Chicago, 44 Ill, 286; Burger »v. Caster, 1 McMullen L., 410, 420; Black- well on Tax Titles, 80. In Wauwatosa v. Gunyon, 25 Wis., 271, 276, Judge Dizon, referring to an objection that a provision authorizing the clerk of the board of supervisors to impose a penalty of fifty per cent. of the assessment for the refusal of the person assessed to swear, was void because, “being a CH. XIV.] THE COLLECTION OF THE TAX. 315 a penalty does not seem to be out of harmony with the general spirit or general course of tax proceedings, and perhaps may be sustained on the same principles that support tax laws in general. But we.should doubt the right to make any finding by any such tribunal conclusive; and there may be reason to question whether, for delay in the payment of a tax, it is competent for the govern- ment to authorize any merely ministerial officer to impose a pen- alty, though a reasonable interest, and the expenses and costs oceasioned by the delay, might doubtless be demanded and col- lected.t The point is not left in a very satisfactory state on the authorities. 7. By forfeiture of property taxed. It is provided by law in some states, that if the taxes assessed against lands shall not punishment for the violation of public law, it cannot, under our constitution, be legally imposed except by prosecution in the courts of justice,” says: “ this proposition is not without some well considered authorities in its favor, and none that we are aware of against it;”? and on rehearing, he says (p. 282): “We think that the fifty per centum mentioned is a penalty which can be im- posed only in the due course of judicial prosecution, and consequently that the clerk had no lawful or constitutional authority to add it to the value of the property returned.” In Lacey v. Davis, 4 Mich., 140, a penalty of ten per centum added to taxes remaining unpaid after a certain day, was sustained as not being unreasonable; and in Scott v. Watkins, 22 Ark., 556, a penalty of twenty-five per centum on nonresidents who shouid fail to pay their taxes in due season, was sustained against the objection which was deemed insupera- ple in Illinois and Wisconsin. See also Craig v. Flanagin, 21 Ark., 319; Pope v. Macon, 23 id., 644; High v. Shoemaker, 22 Cal., 363; People v. Todd, 28 id., 181; Mulligan v. Hintrager, 18 Iowa, 171. In Butler v. Bailey, 2 Bay, 244, it was held competent to impose double taxes as a penalty for failure to make due return of property to be taxed. ! Bristol ». Chicago, 22 Ill., 587. For cases of penalties imposed in Penn- sylvania by the taxing officers, under laws which gave an appeal to the courts, reference may be made to Drexel ». Commonwealth, 46 Penn. St., 87; Com- monwealth vo. Wyoming Valley Canal Co., 50 id.,410. As to penalties collected by prosecution, see State v. Welch, 28 Mo., 600; Olds v. Commonwealth, 3 A. K. Marsh., 465; Lee ». Commonwealth, 6 Dana, 311; Alexander ». Common- wealth, 1 Bibb, 515; McCall v. Justices, id., 516; Chiles v. Commonwealth, 4 J.J. Marsh., 578; State v. Manz, 6 Coldwell, 557; Elam 2. State, 25 Ala., 58; Smith v. State, 43 id., 344. These cases, as well as that of Delaware Division Canal Co. v. Commonwealth, 50 Penn. St., 399, recognize the rule that al. statutes of this nature must be construed strictly. A municipal corporation cannot impuse a penalty for neglect to pay taxes promptly, unless expressly authorized by law to do so. Augusta v. Dunbar, 50 Geo., 387. 316 LAW OF TAXATION. [CH. XIV. be paid by a certain time, and, after some prescribed notice, the land shall be forfeited to the state. The Virginia statute of 1790 may be taken as an illustration. After making provision for the taxation of lands; that the sheriff should make to the auditor of public accounts a return, under oath, of all those, the taxes upon which he could find no effects for the satisfaction of; that certain prescribed steps should be taken for collection the following year, and, if these failed, there should be published in the Virginia Gazette, for three weeks, the names of delinquents, the quantity of land, the situation thereof and the taxes due thereon, and that in case the tax on any part should not be paid for the space of ghree years, “the right to such lands shall be lost, forfeited and vested in the commonwealth,” etc. This was a more liberal stat- ute, in the time it allowed for payment, than those usually are which provide for sucha forfeiture, but the general characteris- tics of all are alike. Serious question has been made of the right of the govern ment to take to itself title to lands, under a forfeiture based on a personal default, without a judicial finding that such a default exists. The question was made in the early cases arising under these statutes, and has continued to be made ever since, without having yet reached conclusive settlement. One of the most learned and able of the early Virginia judges declared his opinion, under the act of 1790, that the forfeiture could not be perfected so as to divest the title of the former owner without inquest of office. This view was accepted in Kentucky,’ and has recently been as- sented to in an elaborate opinion by the supreme court of Missis- sippi2 But the settled doctrine in Virginia is now the other way,’ and the decisions are supported by those of Maine. 1 Tucker, J., in Kinuey 0. Beverley, 2 H. & M., 818. The other judges gave no opinion on this point. ? Barbour v. Nelson, 1 Litt., 60; Robinson v. Huff, 3 id.,88. And see Currie v. Fowler, 5 J. J. Marsh., 145; Harlan’s Heirs v. Seaton’s Heirs, 18 B. Monr., 312. The decisions in Minnesota favor the sume doctrine. See St. Anthony Co. v. Greely, 11 Minn., 321; Baker o. Kelley, id., 480; Hill o. Lund, 13 id., 451, 3Griffin 0. Mixon, 38 Miss.,414. There is an able dissenting opinion in this case by Jfandy, J. 4Wild’s Lessee o. Serpell, 10 Grat., 405; Hale 0. Branscum, id., 418; Flana gan v. Grimmet, id., 421; Usher v. Pride, 15 id., 190. 5 Hodgdon o. Wight, 36 Me., 326; Adams o. Larrabee, 46 id., 516, 519. CH. XIV.] THE COLLECTION OF THE TAX. 817 Some ground we may safely occupy here without liability to con- troversy. It is conceded on all sides that an intent to transfer title to the government by forfeiture will not be inferred in any case from language capable of any milder construction.! The courts of Ohio acted upon this view when they held that a statute which declared, that after due record of the default, the land “shall be considered as forfeited to the state of Ohio, and besub- ject to be disposed of in such manner as any future legislature may direct,” did not work an absolute forfeiture, and the owner might redeem afterwards. But this was partly, at least, on the ground that the legislature had never treated this forfeiture as vesting a title in the state for any other purpose than as_ security for taxes due and owing. That statutes of forfeiture are strictly construed, is an elementary principle,® and there are no cases in which the rule requiring a substantial compliance with all the important provisions of the statute will more rigidly be insisted upon.* Where the power of legislation ipso facto to work a forfeiture is in question, it is important that there be a clear and precise understanding of what is intended in the use of this word for- feiture. The usual method of enforcing the payment of taxes upon property is by putting the property up to a publicsale. No one questions the right to do this, and no one doubts that the sale, if fair and made in compliance with the law, and after all the necessary preliminary steps have been taken, vests a perfect 1 Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch, 603, 625; Schenck ». Peay, 1 Dillon, 267; Bennett ». Hunter, 18 Grat., 100; 5. C. in error, 9 Wall., 326, 336. 2 Thevenin v. Slocum’s Lessee, 16 Ohio, 519, 582. This case is cited and re- lied upon in St. Anthony, etc., Co. ». Greely, 11 Minn., 321.- 8 See Schenck v. Peay, 1 Dill. C. C., 267; Lohrs v. Miller’s Lesssee, 12 Grat., 452; Twiggs». Chevallie, 4 W. Va.,463. A subsequent taxing of lands by the state, and the receipt thereof from the former owner, was held in Hodgdon » Wight, 86 Me., 326, to be no waiver of the forfeiture. The same decision was made in Crane »v. Reeder, 25 Mich., 303, which was a case of escheat. In that case Campbell, J., discusses at length the question of necessity of inquest of office, and concludes that it is not necessary. 4 See Hopkins v. Sandige, 31 Miss., 668, 676, in which the delay of afew days after the time fixed by statute for the return of the list was held to defeat the forfeiture. See also Kinney 0. Beverley,2H. & M., 318, 331; Dentler o State, 4 Blackf., 258; Williams ». State, 6 id., 86. 318 LAW OF TAXATION. [cl. XIV. title in the purchaser to the full extent that the statute shall de- clare. No judicial proceedings are required to perfect the title, and if the purchaser have need of a resort to them, in order to obtain possession, it is only what might oceur to any owner of property under any undisputed title In what important par- ticular does this differ from the case of forfeitures, except that to the proceedings which are to work the forfeiture there is added the one requirement of a public sale? But there are in the sale no elements of an adjudication ; it does not stand in the place of one; its purpose is only to bring to the public treasury the tax for which the sale is made. Incidentally in the proceedings a purpose is kept in view, not to sacrifice any farther than shall be necessary the interests of the owner; and to this end notice of the sale is required with a view to invite competition among bidders. But we are not aware of any constitutional principle that entitles a party to have his duty coerced by a public sale of property, rather than bya forfeiture of it. A sale by a ministerial officer which, as the closing step in administrative action, is to di- vest the owner of his title, is as much obnoxious to the charge that it deprives him of his freehold without a hearing, as is the legislative forfeiture. Whatever there is of the nature of judi- cial inquiry lies back of these proceedings in the action of the assessing officers, and, as has already been stated, is the same in both cases. If the owner is condemned without a hearing in the one case, he is in the other. It may be that a public sale would be most advantageous to the person taxed, because it mightleave to him some portion of his property after the tax was satisfied. In the vast majority of cases, however, the sale is of the whole land,and the possible benefit is not had. But there isno imperative principle of gov- ernment which requires the legislature in prescribing rules of ad- ministration, to fix upon those which would be most for the ad- vantage of a negligent or defaulting citizen. We suppose, on the other hand, that the legislature has very ample discretion to determine the rule on its own view of public policy. If it deems asale more advantageous to the state than a forfeiture, it will provide for it; otherwise not. But if by forfeiture is understood the vesting in the state a title which shall be absolute and beyond dispute, the question CH. XIv.] THE COLLECTION OF THE TAX. 819 presented is different. It is impossible that there can be any right to declare such a forfeiture, except as the result of an adju- dication to which the owner was a party, which has determined that the default, upon which the forfeiture was based, existed in fact, and that the requisite steps which were to precede the for- feiture have actually been taken. In some judicial tribunal, the party whose freehold is seized has a right to a hearing on these questions: a constitutional right, if constitutional protections to property are of any avail. But if by forfeiture is understood only that without sale there shall pass to the state such title as a purchaser would acquire if a sale were to take place, the decla- ration of forfeiture can, of itself, work no absolute deprivation of right. Ifthe default existed and the tax proceedings are regular, the state has the title; if not, it remains in the person taxed. And in the absence of any statute changing the burden of proof, it would devolve on the state to prove the regularity of the pro- ceedings, precisely as it would on the purchaser when demanding the land under a purchase. 8. By conditions on the exercise of aright. In some in-- stances statutes have attached to the privilege of exercising the elective franchise, the condition that taxes should have been paid for the current year, or within some short period preceding. In some states this is a matter of constitutional requirement. If one evades his duty to the government, he may reasonably be denied the privilege of participating in the direction of its affairs ; and these constitutional provisions appear to assume that he, who, in his own business, acquires nothing upon which he can be taxed, must lack the wisdom and discretion to take part in the business of the state? In some instances the payment of a tax 1 See Kinney v. Beverly, 2 H. & M., 818, 381; Hopkins v. Sandige, 31 Miss., 668, 676. See, also, post, Chapter XVII. The proceedings for forfeiture, where a judicial prosecution is required, it seems unnecessary to consider. An intent to defraud is made a ground of forfeiture under some of the federal revenue laws. See United States 0. Hogs- heads of Tobacco, 2 Bond, 187; United States v. Caddies of Tobacco, 2 id., 305; Henderson’s Spirits, 14 Wall., 44. The statute imposing the penalty of forfeiture of land and buildings employed in violation of a revenue law, sus- tained as constitutional. United States v. McKinley, 4 Brewster, 246. See United States v. Spreckens, 1 Sawyer 84; Quantity of Tobacco, 5 Ben., 407. 2 Constitutional provisions of the kind exist in Deleware, Georgia, Massa 3820 LAW OF TAXATION. [CH. XIV. assessed against one in respect to a chose in action owned by him has been made a condition to the maintenance of a suit upon it In some instances the right to maintain a suit to recover property, which the party claims has illegally been taken from him, has been subjected to the condition that he should first pay the tax for which the property was sold, and perhaps all subsequent taxes ; but this, we think, has been pushed beyond the constitutional power of the legislature, as we shall endeavor to show hereafter.? Stamp taxes are collected by requiring them to be affixed tc some commodity before it can be sold, some written instrument before it can be made use of, and the like. An early law of con- gress provided for such taxes, and they were imposed again dur- ing and since the rebellion. No reasonable objection in principle can be opposed to such taxes, and except where they were so made use of as to invade the province of state authority, their validity was not seriously questioned.’ chusetts and Pennsylvania. As to liability of assessors for depriving one of his right to vote by not assessing him, see Griffin v. Rising, 11 Met., 339: And see Re Duffy, 4 Brewster, 581; Batterson v. Barlow, 60 Penn. 8t., 54. 1 See Lott v. Dysart, 45 Geo,, 355; Redwine v. Hancock, id., 364; Scruggs ». Gibson, id., 509; Green v. Lowrey, 46 id., 55; and many other cases in the sub- sequent Georgia reports. ?8ee Taylor v. Burdett, 11 Leigh, 334, in which it was decided to be com- petent to require evidence of the payment of the taxes as a condition prece- dent to maintaining a suit for the recovery of the lands taxed. See, also, Tharp v. Hart, 2 Sneed, 569. But such a provision is to be strictly construed, and will not be applied to the case of special assessments, unless made ap- plicable in terms. Glass 0. White, 5 Sneed, 475. See Williamsburg ». Lord, 51 Me., 599. In Maine, in a contest between the original owner of land and a tax purchaser, it is held that the former is not required to tender taxes until the latter has made out a prima facde case. Orono ». Veazie, 57 Me., 517; 8S. C., 61 id., 431. Nor need he make a tender where several parcels have been sold together, so that it cannot be determined how much he should pay. Phillipps ». Sherman, 61 Me., 548, 551. In Weller ». St. Paul, 5 Minn., 95, the right to enact such laws was denied as being inconsistent with the constitu- tional right of every citizen to “obtain justice freely and without purchase.” Similar rulings have been made in Illinois. Wilson 0. McKenna, 52 IIL, 43; Reed ». Tyler, 66 id., 288. A requirement that no person shall be permitted to question a tax title, without showing payment of all taxes due upon the land will only be applied to plaintiffs, and not to parties in possession de- fending against a tax deed. Curry ». Hinman, 11 II1., 420. Power denied to make it applicable. Conway v. Cable, 37 id., 82. 3 For cases under the Virginia Stamp Act of 1812, Mumford’s Reports may be referred to. The cases, however, are not very important. CH. XIv.] © THE COLLECTION OF THE TAX. 321 It is competent in the case of such taxes on business as cannot be collected in advance, to require security for their payment be- fore the business is entered upon.! Collection as between the state and its municipalities. Where state levies are collected through the agency of county, city or township officers, it is campetent for the state to make the county or other district liable as principal debtor for the quota of the state tax assessed within it? Provisions to this effect are common in the statutes. And where the county treasurer is re- quired to give bond to the state for the state taxes to be received by him, the failure to give a sufficient bond will not excuse the county. The state is not to suffer from the laches of its agents in such matters.® 1 Mason ». Rollins, 2 Biss. 99; United States ». Mathoit, 1 Sawyer, 142. * Schuylkill County ». Commonwealth, 86 Penn. St., 524; People v. Supervi- sors of St. Clair, 31 Mich. When the state treasurer charges over to a county its proportion of the state tax, the county becomes debtor, and cannot burden the state with any drawback of percentage. Multnomah Co. ». State, 1 Ure- gon, 358. 2 See cases cited in the preceding note. A county is liable to towns for money collected by a defaulting county treasurer. Potter County ». Oswayo, 47 Penn. St., 162. But it is not liable to the town for its quota until the amount has been actually collected. Guittard v. Marshall County, 4 Kans., 388. 21 822 LAW OF TAXATION. (cH. XV. CHAPTER XY. THE SALE OF LANDS FOR UNPAID TAXES. When made. Lands are sold by the government for taxes, either because the assessments made upon them are not paid with- in the time allowed by law for their voluntary satisfaction by the owner, or because a personal assessment against the owner remains uncollected by the ordinary process. Whether the sale is to be made for the one reason or for the other, the same principles will govern it, though in some particulars the proceedings will differ. The land must be liable. As government has no inherent right to deprive the citizen of his property except in pursuance of regular and lawful proceedings, and fora lawful demand, a sale of lands will be void if they were not liable for the tax. If by law they were exempt from taxation, a sale will be void though for a tax actually assessed ;! and so it will be if made for a tax legally assessed but which in some lawful manner has been discharged. Payment of the tax by the owner, or by any one entitled to make it, is an absolute defeat and termination of any statutory power to sell.2 The persons who, besides the owner, are entitled to make payment, are those who are assessed for the tax, and any others whose interests would be injuriously affected by a sale, either because of liens they may have, or of contract relations ;3 and any one having the right may depute another to make it for him. Whether any third person may make payment is not so clear; but ‘ Hobson o. Dutton, 9 Kans., 477. * Dougherty v. Dickey, 4 W. & 8., 146; Hunter ». Cochran, 3 Penn. St., 105; Montgomery v. Meredith, 17 id., 42; Ankeny v. Albright, 20 id., 157; Laird. Heister, 24 id., 452; Jackson v. Morse, 18 Johns., 441; Den ». Terrell, 3 Hawks, 283; Rowland v. Doty, Har. Ch., 3; Johnson v. Scott, 11 Mich., 232; Rayner ov. Lee, 20 id., 884; Curry o. Hinman, 11 IIl., 420; Morrison ». Kelley, 22 Ill, 610; Walton v. Gray, 29 Iowa, 440; Sprague v. Coenan, 80 Wis., 209; Wallace ». Brown, 22 Ark., 118; Bennett 0. Hunter, 9 Wall., 326. ’Sce Bennett v. Hunter, 18 Grat., 100; Same case in error, 9 Wall., 826; Ta- cey v. Irwin, 18 id., 549. CH. XV.] | THE SALE OF LANDS FOR UNPAID TAXES. 823 as the state is only interested in obtaining the revenue it has called for, it would seem that, before any sale, and consequently before any rights of third parties have intervened, any mere volunteer may pay the tax if he chooses ;1 and vertainly if the proper officer should receive payment, any question concerning the right to make it would be precluded. Payment is an act in pads, which may be proved not only by the record, but by the original re- ceipt ;? and it may also be made out by any other evidence which satisfies a jury of the fact. But payment cannot be shown in op- position to a judicial finding; at least as between the parties thereto and their privies.* Tender of the tax by any one who has a right to make pay- ment, is effectual to preventa sale, whether the tender is accepted or not. Buta tender, in order to be effectual, must be of the full amount of the tax; it can not be of any thing less, unless the statute makes provision for payment of a part by itself, as it does sometimes for the benefit of tenants in common or owners of dis- tinct portions of the premises taxed.® Necessity for regular proceedings. To the validity of any sale of lands for taxes, it is imperatively necessary that there shall 1§ee Reading v. Finney, 73 Penn. St., 467; Martin ». Snowden, 18 Grat., 100; Kinsworthy v. Austin, 23 Ark., 875. 2 Johnstone v. Scott, 11 Mich., 282; McReynolds v. Longenberger, 57 Penn. St. 18; Deen ». Wills, 21 Texas, 642. 3 Dennett ». Crocker, 8 Greenl., 239; Hammond 9. Hannin, 21 Mich., 374; Rand ». Schofield, 43 Ill., 167; Cook v. Norton, 61 id., 285; Adams ». Beale, 19 lowa, 61. *Gaylord v. Scarff, 6 Iowa, 179; Cadmus v. Jackson, 52 Penn. St., 295; Wal- 1ace ». Brown, 22 Ark., 118. In this last case it is strongly intimated that if the collector, after the tax has been paid to him, proceeds to a sale of the Jand, and then obtains a judicial confirmation of the sale under a statute providing therefor, and which makes the confirmation “a complete bar against any and ail persons who may thereafter claim said land in consequence of informality or illegality in the proceedings,” the sale might and ought, in a direct pro- ceeding for the purpose, to be set aside for fraud, though it could not be at- tacked collaterally. 5 Schenck v. Peay, 1 Dill. O. C., 269; Loomis ». Pingree, 43 Me., 299; Kins- worthy v. Austin, 23 Ark., 875; Tacey v. Irwin, 18 Wall., 549. 6 Hunt o. McFadgen, 20 Ark., 277; Heft v. Gebhart, 65 Penn. St. 510; Crum v. Burke, 25 id., 377. 824 LAW OF TAXATION. [CH. XY. have been a substantial compliance with the law in all the official proceedings which have led to it. Tax sales are made exclusively under a statutory power. The officer who makes them sells something he does not own, and which he can have no authority to sell except as he is made the agent of the law for the purpose. But he is made such agent only by certain steps which are to precede his action, and which under the law are conditions to his authority. If these fail, the power is never created. If one of them fails, it is as fatal as if all failed. Defects in the conditions to a statutory authority can- not be aided by the courts; if they have not been observed, the courts cannot dispense with them, and thus bring into existence a power which the statute only permits when the conditions have been fully complied with. Neither, as a general rule, can the courts aid the defective execution of a statutory power; they may do this when the power has been created by the owner himself, and when such action would presumptively be in furtherance of his purpose in creating it; but a statutory power must be exe- cuted according to the statutory directions, and presumptively any other execution is opposed to the legislative will, instead of in furtherance of it. It is therefore accepted as an axiom when tax sales are under consideration, that a fundamental condition to their validity is that there should have been a substantial com- pliance with the law in all the proceedings of which the sale was the culmination. This would be the general rule in all cases in which a man is to be divested of his freehold by adversary pro- ceedings ; but special reasons make it peculiarly applicable to the case of tax sales. These reasons are thus summarized by the su- preme court of Maine: “Sales of real estate for the nonpayment of taxes must be regarded in a great measure as an ex parte pro- ceeding. ‘The owner is to be deprived of his land thereby ; and a series of acts preliminary to the sale are to be performed to au- thorize it on the part of the assessors and collector, to which his attention may never have been particularly called; and experi- ence and observation render it notorious that the amount paid by 1There must be express statutory authority for selling lanas for taxes. A power to tax does not include the power to cause lands to be sold for nonpay- ment of the taxes. See McInery v. Reed, 23 Iowa, 410; Sibley v. Smith, 2 Mich., 486; Sharp v. Spier, 4 Hill, 76. CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES, 825 purchasers at such sales is uniformly trifling, in comparison with the value of the property sold. It has therefore been held, with great propriety, that to make out a valid title under such sales, great strictness is to be required; and it must appear that the provisions of law preparatory to!and authorizing such sales, have been punctiliously complied with.” } In Virginia, somewhat stronger language has been employed “These sales and purchases,” it is said, ‘‘founded on forfeitures, deserve no indulgence from the court. It is therefore the well settled law that he who claims under a forfeiture, must show that the law has been exactly complied with.”* This language, if strictly -taken, is unquestionably more exacting in its require- ments than the authorities generally will justify. It is not neces- sary, we apprehend, in any proceedings so complicated as those in which lands are sold for taxes, that there should be shown an exact and punctilious compliance with all the provisions of law before they can be supported. With many of these provisions, as we have endeavored to show in a preceding chapter, the party interested in defeating such a sale could have no concern what- ever. They are not made for his protection or benefit, and whether observed or not, they do not affect his interest. A failure to ob- serve them, can, therefore, furnish no ground of complaint on his behalf; and it is not perceived that it can constitute for him any just or equitable protection against the demands of the state for its lawful revenues. It is sufficient for his case if the provisions which do concern him have been observed ; and if others which are made in the interest of the public are overlooked or disregarded, the public, through its proper authorities, must be the proper ' Whitman, Ch. J., in Brown 2. Veazie, 25 Me., 859, 862. See also Keene ». Houghton, 19 id., 368; Smith o. Bodfish, 27 id., 289; Flint o. Sawyer, 80 id., 226; Payson v. Hall, 80 id., 319; Matthews o. Light, 82 id.,305; Howe ». Rus- sel, 36 id., 115; Stevens v. McNamara, 36 id., 176; Loomis ». Pingree, 43 Me., 299; Lovejoy v. Lunt, 48 id., 377; Williamsburg ». Lord, 5{ id.,599; French o Patterson, 61 id., 208. 2Qarr,J., in Wilson v. Bell. 7 Leigh, 22,24. And see Yancey v. Hopkins, 1 Munf., 419; Christy 7. Minor, 4 id. 481; Nalle o. Fenwick, 4 Rand., 585; Allen v. Smith, 1 Leigh, 231, 254; Chapman ». Doe, 2 id., 329, 357; Jesse v. Preston, 5 Grat., 120; Martin v. Snowden, 18 id.,100. In California it has been said that the proceedings in these cases are strictissimi juris. Ferris v Coover, 10 Cal., 589, 682; Kelsey v. Abbott, 18 id., 609. 626 LAW OF TAXATION. [cn. XV. party to complain. This ‘is reasonable, and this is the rule that is laid down by the authorities. Oaus of proof. At the common law it was necessary that one who claimed to have obtained title to property of another, under proceedings based upon a neglect of public duty, should take upon himself the burden of showing that the law had been complied with by those who had had the proceedings in charge. Especially if the proceedings would operate with severity, and be in their effects something in the nature of a forfeiture, the law was strict in its requirement that his evidence should exhibit the proceed- ings from step to step, and show that each of the safeguards with which the statute had surrounded the delinquent for his protec- tion in this very emergency, had been duly observed. And this tenderness for his interests appeared but reasonable. Of what service could it be that safeguards were provided, if observance was not essential ; if a careless or incompetent officer might over- look or disregard them with impunity, and deal with the property of the citizen asif his position as an officer of the government vested him with a dispensing authority over legislation, and authorized him to make, in his discretion, a law for the case as he proceeded ? This rule of the common law has not been modified by decisions, and is still recognized and enforced, where statutes have not changed it. It may consequently be said to be the general rule, that the party claiming lands undera sale for taxes, must show affirmatively that the law under which the sale was made, has been substantially complied with, not only in the sale itself, but in all the anterior proceedings. But although the authorities 'Stead’s Ex’rs v. Course, 4 Cranch, 402; Parker v. Rule’s Lessee, 9 id., 64; Williams v. Peyton’s Lessee, 4 Wheat., 77; McClung ». Ross, 5 id., 116; Thatch- er v. Powell, 6 id., 119; Games », Stiles, 14 Pet., 332; Pillow ». Roberts, 13 How., 472; Moore v. Brown, 11 id., 414; Harly v. Doe, 16 id., 610; Parker v. Over- man, 18 id., 142; Little ». Herndon, 10 Wall., 26; Hughey’s Lessee ». Horrell, 2 Ohio, 283; Holt’s Heirs 0. Hemphill’s Heirs, 3 id., 232; Lafferty’s Lessee v. Byers, 5 id., 458; Thomsoa’s Heirs v. Gotham, 9 id., 170; Kellogg », McLaughlin, 8 id., 114; Polk v. Rose, 25 Md., 153; Pope v. Headen,d Ala., 433; Elliott ». Ed- dins, 24 id., 508; Garrett v. Wiggins, 1 Scam., 335: Fitch ». Pinckard, 4 id., 69; Doe v. Leonard, 4 id., 140; Wiley » Bean, 1 Gilm., 302; Irving o. Brown- ell, 11 11., 402; Spellman v. Curtenius, 12 id., 409; Marsh ». Chestnut, 14 id., 224; Gewey »v. Urig, 18 id., 242; Lane v. Bommelmann, 21 id.. 143; Charles CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES. 827 concur in this rule with great unanimity, they are not so entirely in accord when the question regards the strictness required in the showing that shall be made. On this point some of the cases, particularly those which were decided at a very early day, have used language importing a strictness greater than in most cases would be possible, and greater than is demanded by any consid- erations of policy or of justice to the party whose estate is in ques- tion. The later cases lay down a more just and reasonable rule, and warrant us in saying, that the requirement of a compli- ance with the law, when the question arises as one of title, is sqtis- fied by obedience to those provisions of the law which are in the nature of conditions to the power to sell, and are not merely directory under the rules laid down in another chapter! To re- quire more than this would be needless for any beneficial purpose, and would greatly embarrass, and in innumerable cases, defeat the collection of the revenue. The requirement that the claimant under a tax sale should show the proceedings to have been regular, was entirely according to the natural order of evidence. The original owner would show a prima facie right by producing the documents and evidence which demonstrated his original ownership. To overcome this, there must be evidence of a title overriding or extinguishing it; and such a title would not appear in the tax. purchaser until the suc- cessive steps, taken in compliance with the tax law, and ending in a sale and conveyance, had been shown. ‘To prove merely a sale, would be futile, unless the power to make the sale was estab- lished; and to prove merely an instrument purporting to bea conveyance, would be even more idle. 0. Waugh, 35 id., 315; Norris v. Russell, 5 Cal.,250; Keane v. Cannovan, 21 id., 291; O’Brien »v. Coulter, 2 Blackf,, 421; Willlams ». State, 6id., 36; Wiggins o. Holley, 11 Ind.,2; Gavin o. Sherman, 28 id., 82; Ellis ». Kenyon, 25id., 134; Jackson v. Shepard, 7 Cow., 88; Atkins v. Kinman, 20 Wend., 241; Sharp «. Spier, 4 Hill, 76; Sharp ». Johnson, 4 id., 92; Newell ». Wheeler, 48 N. Y., 486; Westfall v. Preston, 49 id.,349; Hall ». Collins, 4 Vt., 316; Bellows v. El- liott, 12 id., 569; Brown v. Wright, 17 id., 97; Waldron »v. Tuttle, 3 N. H., 340; Cass v. Bellows, 31 id., 501; Hawley . Mitchell, 31 id., 575; Annan v. Baker, 49 id., 161; Scott ». Young Men’s Society, 1 Doug. Mich., 119; Latimer ». Lovett, 2 id., 204; Scott v. Babcock, 3 Green, Iowa, 183; Gaylord . Scarff, 6 Towa, 179; McGahen o. Carr, 6 Iowa, 831; Morton o. Reads, 6 Mo., 64; 8. C 9 id., 878; Nelson v. Grebel, 17 id., 161; Kelly v. Medlin, 26 Texas, 38 1 Chapter IX. 828 LAW OF TAXATION. ‘ [cH. Xv. Nor was there any special injustice or hardship in the rule of the law, which required the tax purchaser to prove the regularity of the proceedings under which he claimed. Whether the inter- est of the state might not be best subserved by casting the onus of showing defects in the title on the adverse claimant, and whether, therefore, on grounds of public policy it might not be advisable to change the rule accordingly, are questions that stand quite apart from any which concern the claims or rights of the purchaser ; but regarding his position only, there was no hardship in calling upon him to give proof of his title by showing a sale made with due authority. A tax sale is the culmination of pro- ceedings which are matters of record; and it is a reasonable pre- sumption of law that, where one acquires rights which depend upon matters of record, he first makes search of the record in or- der to ascertain whether anything shown thereby would diminish the value of such rights, or tend in any contingency to defeat them. A tax purchaser consequently cannot be, in any strict technical sense, a bona fide purchaser, as that term is under- 1That the proceedings on which tax sales depend are to be proved by the records, or by the originals from which the records should be made up ; the following cases are authority, if indeed any is necessary : Job ». Tebbetts, 5 Gilm., 376, 880; Graves ». Bruen, 11 Ill, 481, 442; Schuyler v. Hull, 11 id., 462, 465; Boston v, Weymouth, 4 Cush., 588; Bucksport ». Spofford, 12 Me., 487; Adams v. Mack, 3 N. H., 493, 499; Blake v. Sturtevant, 12 id., 567; Pitts. field ». Barnstead, 40 id., 477 493; McCrory v. Manes, 47 Geo., 90; Sheldon, Lessee v. Coats, 10 Ohio, 278; Thevenin v. Slocum, 16 id., 519, 5381; Blodgett v. Holbrook, 39 Vt., 336; Iverslie v. Spaulding, 32 Wis., 394; Gearhart v. Dixon, 1 Penn. St., 224; Diamond Coal Co. ov. Fisher, 19 id., 267; Miner v. Mc- Lean, 4 McLean, 188; Games ». Stiles, 14 Pet., 322. But such records do not import absolute verity like those of courts, and it may be shown in contradic- tion to their recitals that the facts were otherwise than as there stated. Dia- mond Coal Co., v. Fisher, 19 Penn. St., 267, 273; Boston v. Weymouth, 4 Cush., 538, 541; Blake v. Sturtevant, 12 N. H., 567; Graves v. Bruen, 11 Il, 481, 443; Tebbvetts v. Job, 11 id., 453; Schuyler v. Hull, 11 id., 462 465. In Kellogg v. McLaughlin, 8 Ohio, 114, 116, the record of tax proceedings was held to be conclusive against the party claiming under a tax sale, but not against the party contesting it. In Miner v7 McLean, 4 McLean, 138, 140, it is said that “parol evidence is not admissible to supply a defect in the record. This well established rule can admit of no exception.” In Coit o. Wells, 2 Vt., 818, it was decided that the records of the advertisements in the case of road taxes were not evidence at all unless they contained all the particulars required by the statute. These cases, however, are not inconsistent with a resort to parol evidence as secondary to that of record when the latter is lost or destroyed, CH. XV.] THE SALE OF LANDS FORK UNPAID TAXES. 829 stood in the law; because a bona fide purchaser is one who buys an apparently good title without notice of anything calculated to impair or affect it; but the tax purchaser is always deemed to have such notice when the record shows defects. [He cannot shut his eyes to what has been recorded for the information of all concerned, and relying implicitly on the action of the officers, assume what they have done is legal because they have done it. Itis indeed a presumption of law that official duty is performed; and this presumption stands for evidence in many cases; but the law never assumes the existence of jurisdictional facts; and throughout the tax proceedings the general rule is, that the taking of any one important step is a jurisdictional prerequisite to the next; and it cannot therefore be assumed, because one is shown to have been taken, that the officer performed his duty in taking that which should have preceded it.? Presumptions of regularity. But while the tax purchaser is making his showing, the strictness required in the proof may reasonably be made to depend, to some extent, upon the circum- stances. Presumptions are indulged in every class of proceed- ings; and in some cases presumptions may give an efficient sup- port to evidence which, without them, would be insufficient to establish the necessary facts. Indeed, in some cases, presump- tions may supply links which appear to be missing in the testi- mony. It was once said by an eminent judge in a tax case, that “ full evidence of every minute circumstance ought not, especially at a distant day, to be required. From the establishment of some facts it is possible that others may be presumed, and less than positive testimony may establish facts.”* Nothing, under some 1A tax purchaser comes strictly within the rule caveat emptor. If his title fails because the collector failed to give notice of sale, he has no remedy against the collector. Hamilton ». Valiant, 80 Md,, 139. Neither has he for any error or irregularity which defeats his title a remedy against the town. Lynde v. Melrose, 10 Allen, 49. And see Jenks ». Wright, 61 Penn. St., 410, 414, In Michigan the Auditor General is authorized to refund the bids to purchasers in some cases in which titles prove defective ; but his right to do so is limited strictly to the cases enumerated in the statute ; the state taking no responsibility for the action of officers where the purchaser has the same opportunity for knowing the facts that the state officers have. People ». Auditor General, 30 Mich., 12. *Marshall, Ch. J., in Stead’s Executors v. Course, 4 Cranch, 413. See, to tht same effect, Freeman v. Thayer, 33 Me., 76. 330 LAW OF TAXATION. [cH. xv. circumstances, could be more just or reasonable. But when that “ distant day” arrives, when presumptions are relied upon, it will be found necessary to observe, with some circumspection, what has been the position of the parties, relative to the property claimed, from the time the sale was made. That position may sometimes very reasonably have a controlling influence. If the tax purchaser has made no claim under his title, and has left the original owner to treat the property as his own, it is difficult to understand on what ground any presumption can be built up in aid of the tax title, deriving its force from the lapse of time. “The older it is without any claim being made under it, the weaker it is, and the weaker are all presumptions in its favor.’* If, on the other hand, he has made claim in practical and effect- ive form by taking possession, and especially if, after the posses- sion was taken, the other party, with full knowledge thereof, has neglected, for any considerable period, to assert his own rights, it must be conceded that the claim of the tax purchaser will come before the courts under circumstances entitling it to much greater indulgence. The reasons for this are manifest. If one who claims to have title to property shall he by for a long term of years without asserting it, while another is in the enjoyment of that which, if the title is valid, should be enjoyed by himself, it is not a very violent presumption that his supineness is due to his being aware of some defect which would defcat his claim if he were to assert it in legal proceedings. The longer he delays the stronger this presumption becomes; and if the time could ever arrive when, because the claim is old, it could be presumed without de- fects, it is obvious that it could only be on an indulgence of pre- sumptions that are opposed to reason. That he may lie by because of defects, until the time can arrive when, because of his lying by, it will be presumed that no defects exist, and then be put by the law in possession of that which it is inferable he did not venture to demand before, is an absurdity so manifest that time need not be wasted in the attempt to make it more so. 1 Alexander v. Bush, 46 Penn. St., 62. See, to the same effect, Read ». Good. year, 17 5. & R,, 350; Hole ». Rittenhouse, 19 Penn. St. 305; Worthing », Webster, 45 Me., 270; Richardson v. Dorr, 5 Vt., 9; Townsend v. Downer, 82 id., 183. CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES. 831 _ Itis different when the tax purchaser has been ia possession." That fact is some evidence that he at least believes his title to have validity; and if those who might dispute is neglect to do so, the inferences will be more or less strong, according to the cireum- stances, that their action is attributable to the belief that a con- test must be ineffectual. It is doubted if in any case, on common law principles, a tax title could be presumed valid before the full period allowed by the statute of limitations for bringing suit had expired. The court of appeals of Virginia decided at an early day that it could not be,? and no satisfactory reason has been sug- gested in any quarter to cast a doubt upon the correctness of this conclusion. Still, presumptions may be very forcible in some cases, where, on the evidence, it is left in doubt whether the tax proceedings have or have not been conducted in conformity to law. If possession has been held under them for a considerable period, though it may not have been for a length of time sufficient to bar suits for the recovery of lands, there may reasonably spring from such possession an inference in favor of its legality, of sut- ficient force to turn the scaleson any point left in doubt on the proofs, and to justify a jury, to whom the case is submitted, in drawing the conclusion which supports the possession. The longer the possession has continued, the stronger should be the intendments in favor of the title under which it is held; and although these cannot make valid that which in itself is void, they may, and should, be allowed their weight when a case is to be determined which the evidence has left in doubt. What their weight should be must depend on the circumstances; there can 1 Possession, recovery against the grantor of defendant in trespass, and pay- ment of taxes, are evidence in favor of a tax deed thirty years old that a sur- plus bond, the cost of which is receipted in the deed, was given. Lackawana Tron Co. 0. Failes, 55 Penn. St., 90. As to the force of recitals in deeds generally, where there has been possession under them, see Worthing ». Webster, 45 Me., 270. 2 Allen v. South, 1 Leigh, 231, 255. The validity of a tax sale is not to be presumed from the mere deed of the collector, unaccompanied by extrinsic evidence that the prior proceedings were regular. Nor, in an action of eject- ment, will any presumptions be made in favor of the validity of the deed, merely because the party claiming it proves a possession adverse to the title of another party, but for a period short of that prescribed by the statute of limitations. Towmsend v. Downer, 32 Vt., 183. 832 LAW OF TAXATION. [CH. XV. be no definite rule of law on the subject which can be applied in all cases.! Presumptions could in no case supply the want of a record when the law requires one, and it has never been made; neither can they help out a record which is so defective as not to answer the requirements of the law.?. But when it has been once made to appear that a record has existed which is now lost or destroyed, presumptions may justly be allowed great weight in support of the secondary evidence, in proof of the contents of the record, and that it was in compliance with the law.? 1 Five years’ possesston does not warrant a finding in favor of the regularity of proceedings, when their correctness is not shown by the evidence. Phil- lips v. Sherman, 61 Me., 548. See Pejepscut Proprietors ». Ransom, 14 Mass., 145. As to what will be overlooked in Pennsylvania, under their statute, which declares that no irregularities in the assessment, process, vr otherwise, shall be allowed to affect the title of the purchaser, see Laird v. Hiester, 24 Penn. St., 452. As to the force of the presumption in favor of the correctness of official action under that statute, see Cuttle v. Brockway, 24 Penn. St., 145; Heft v. Gephart, 65 id. 518. In Schoff v. Gould, 52 N. H., 512, the tax pro- ceedings depended on the vote of a meeting, and the question was made upon proof of the warrant for holding it. The court say: “ The meeting was held in March, 1841 — more than thirty years ago — and officers were chosen who acted as such, and the jury might have presumed that the warrant remained posted the requisite time. Bishop v. Cone, 3 N. H., 518; Northwood ». Bar- rington, 9 id., 873; Petersborough »v. Lancaster, 14 id., 372; School District o. Bragdon, 23 id., 514. In Cavis v. Robertson, 9 N. H., 524, it was held that this rule did not apply where the facts were recent, and the records might be amended, but would apply where, from the lapse of time, it may be presumed that the officers who made the records are no longer living, or have no recol- Jection of the facts. It does not appear that the officers who made the record are dead, but it is a fair presumption that they have lost recollection of the fact that the notice remained posted.” The following cases are important, as showing what, under their varying circumstances, was held sufficient evidence cf an assessment: Bratton ». Mitch- ell, 7 W. &§8., 259; Crum v. Burke, 25 Penn. St., 377, 381; Heft o. Gephart, 65 id., 510; McDermott v. Hoffman, 70 id., 31; McReynolds v. Longenberger, 57 id., 18; Pittsfield v. Barnstead, 40 N. H., 477. The sale book does not prove an assessment. Bratton v. Mitchell, 1 W. &S., 310. Neither do the recitals jin the tax warrant. Hoffer v. Matteson’s Ex’rs, 16 N. J. Eq., 382. ? Coit v. Wells, 2 Vt., 318; Capron »v. Raistrick, 44 id., 515; Kellogg o. Mc- Laughlin, 8 Ohio, 114; Porter v. Byrne, 10 Ind., 146; Iverslie ». Spaulding, 82 Wis., 394; Moser v. White, 29 Mich., 59. 3 Where a record is not found in the proper office, and it is not shown that one was ever in existence, there is no presumption that one was made. Hall ~, Kellogg, 16 Mich., 189. In Cass ». Bellows, 31 N. H., 501, 510, Hastman, J.. CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES. 333 Special authority to sell. The various proceedings which usually are required go precede a sale of the lands have been suc- cessively mentioned. Whether, when these have been taken, the officer will require any special warrant or process as his authority for proceeding to a sale, must depend upon whether something of that nature is provided fur by law. In some of the states a list of delinquent lands is made out and properly certified by the state auditor, or some other designated officer of state, to whom the returns of delinquent taxes have been made, and this list is transmitted to the county or township official who by law is en- trusted with the duty of making sales, and constitutes his war- rant for doing so. In other states, the statutes make other special provisions for the purpose. Whatever list, certificate or warrant is prescribed by the statute, it is to be looked upon as in the na- ture of process, and it is indispensible that the officer should have it before taking any steps towards making a sale! And in all his action he must keep within the command of his warrant and of the law; for his authority will fail to support him when he fails to observe it.” uses the following language: “In Cavis v. Robertson, 9 N. H., 524, it was held that there are cases in which it may be submitted to a jury to presume, from a defective record of the election of a town officer, and frcm his having acted under the appointment, that the mecting was duly held, the proceedings of the town regular and the officer duly sworn; but that this cannot be done where the proceedings are recent, and no cause is shown why the defective record cannot be amended if the truth will warrant it.’ And, after comment- ing upon Gibson 2. Bailey, 9 N. H., 168, he adds: “In the case before us, the town clerk had deceased before the suit was brought. The reeord was de- fective, but showed that the collector was evidently sworn in some way. Nearly forty years had elapsed from the making of the record to the com- mencement of the suit, and, from the authority of the cases cited, and the principles therein stated, we think the evidence was competent to be submit- (ed to a jury, as tending to show the collector to have been duly elected and duly sworn. It can make no difference whether the demandant was the pro- prietor of the lot at the time it was sold, or a subsequent purchaser. The record that the collector ‘was sworn into office’ was open to all; and, if he purchased with that before him, he took the title, subject to the same rights in regard to the record, as had existed with respect to former owners.” 18ee Horner ». Cilley, 14 N. H., 85; Hannel o. Smith, 15 Ohio, 134; Kelley ». Craig, 5 Ired., 129; Gossett v. Kent, 19 Ark., 602; Miner v. McLean, 4 Me. Lean, 188. 2 Where the statute requires the sale to be made within two years from the date of the warrant, a sale at a later day is void Usher ». Taft, 33 Me., 199. 334 LAW OF TAXATION, [CH. Xv. Notice of sale. The first proceeding usually required of the officer who is to make sale is, that he shall give public notice of his intention to do so. Under different statutes notices in va- rious forms are required, as may be thought most suitable 10 the case. If the statute fails to specify the character of the notice, doubtless one in writing must be intended;* but a provision so indefinite will not often be met with. Unusual care is required in obeying the directions of the statute regarding notice, as no one who is entitled to notice can be bound by a sale which has been made without it. There is no constitutional provision enti- tling one to notice ina particular mode: what the statute has made sufficient must be deemed so. In the case of residents, per- sonal notice is sometimes required ;* but for nonresidents, a notice published in a newspaper is generally all that is provided for? Sometimes the published notice is all that is made requisite even in the case of residents; while other statutes direct that the tax list shall be kept posted in some public place or places for a cer- tain period. Whatever the provision is, it must be complied with See, for the same principle, Avery v. Rose, 4 Dev., 549; Doe »v. Allen, 67 N. C., 846. A sale preceding the day is of course void. Conrad ». Darden, 4 Yerg., 307. See Orr v. Travacier, 21 Iowa, 68. It has been decided that where, by the statute, the proceedings are different in the case of nonresidents from what they are in the case of residents, the subsequent proceedings will be invalid unless they follow the assessment. Merrick o. Hutt, 15 Ark., 831; Kinsworthy v. Mitchell, 21 id., 145; McDermott v. Skully, 27 id., 226; Garabaldi o. Jenkins, id., 453. 1 Pearson v. Lovejoy, 53 Barb., 407. ° Where the statute required notice to be given to the occupant, if the land was occupied, it was held that one having a paper title to a lot of 169 acres, and who, though not on it, cultivated a small piece of it, was entitled to no- tice, and a sale made without giving it was void. Leland ». Bennett, 5 Hill, 286, citing Comstock »v. Beardsley, 15 Wend., 348; Bush »v. Davison, 16 Wend., 550. In North Carolina it seems that the mortgagee is regarded as the owner of land mortgaged, so as to be entitled to the notice required to be given to the owner. Whitehurst ». Gaskill, 69 N. C., 449; 5S. 0. 12 Am. Rep., 655. 3The owner of unseated lands is only entitled to such notice as the statute shall provide for, and he must take notice of the tax proceedings at his peril. Cuttle o. Brockway, 32 Penn. St., 45. It is said in Louisiana that it is in the power of the legislature to determine what shall be sufficient to bring parties into court in tax cases, and if a published notice is provided for and given, that is sufficient. New Orleans v. Cordeviolle, 10 La. An., 732; Draining, Co. Case, 11 id., 338. CH. XV.] | THE SALE OF LANDS FOR UNPAID TAXES, 335 strictly. This is one of the most important of all the safeguards which has been deemed necessary to protect the interests of par- ties taxed ; aud nothing can be a substitute for it or excuse the failure to give it! The notice being a prerequisite to the officer’s authority, the fact that in the particular case it can be shown that the party concerned was fully aware of the proceedings, will be of no avail in supporting them. He is under no obligation to take notice of the proceedings unless duly notified. Mere inform- alities or unimportant variances in an attempt to comply with the law may not be fatal, but variance in substance cannot be over- lookéd. It may be useful to notice some of the cases on the subject. Where the statute required the notice to contain a particular statement of the taxes on each lot, a notice not containing it was held void. So where the notice was for less than the statutory time, though but for a single day, the proceeding was held to be as fatally defective as if no notice at all had been given.? So where the noticé was required to be published for a certain time in the paper of the state printer, and the publication was duly begun, but before completion the paper ceased to be that of the state printer, it was held insufficient.* So a notice is defective if 1 Washington 0. Pratt, 8 Wheat., 681; Early v. Doe, 16 How., 610; Moulton v. Blaisdell, 24 Me., 283; Flint 0. Sawyer, 30 id., 226; Hill ». Mason, 88 id., 461; Bush »v. Davison, 16 Wend., 550; Alexander »v. Pitts, 7 Cush., 03; Bla- lock v. Gaddes, 88 Miss., 452; Reed v. Morton, 9 Mo., 878; Prindle v. Camp- bell, 9 Minn., 212; Jenks o. Wright, 61 Penn. St. 410. A written notice will not answer where a printed notice is required by statute. Lagrone »v. Rains, 48 Mo., 586. Nor can posting the list be omitted when required by statute. Yenda v. Wheeler, 9 Texas, 408: see Pitts 0. Booth, 15 id., 453. 2 Washington ». Pratt, 8 Wheat., 681: see Jenks v. Wright, 61 Penn. St., 410. 3 State vo. Newark, 36 N. J., 288. A similar ruling was made in Pope 2, Headon, 5 Ala., 483. And see Elliott 0. Eddins, 24 id.,508; Flint o. Sawyer, 80 Me., 226; Hobbs ». Clements, 32 Me., 67. Twelve weeks’ notice of sale re- quires eighty-four full days. Early v. Doe, 16 How., 610. Where notice is required to be for ten days, Sundays excepted, and it is omitteg two days, not Sundays, it is void. Haskell v. Bartlett, 84 Cal., 281. See further as to time of publication, Kellogg 1. McLaughlin, 8 Ohio, 114; Cass v. Bellows, 31 N. H., 501; Moore o. Brown, 4 McLean, 211; 8. C., in error, 11 How., 414; West- brook ». Wiley, 47 N. Y., 457; Dubuque 2. Wooton, 28 Iowa, 571. 4Bussey v. Leavitt, 12 Me., 378. Compare Pope ov. Headon, 5 Ala., 438; Lyon ». Hunt, 11 id., 295; Sharp v. Johnson, 4 Hill, 92; Cambridge o. Chan- 336 LAW OF TAXATION, [OH. Xv. the collector in appending his name fails toadd his name of office, so that it does not appear to be official; or if given before the person has in fact been sworn into office ;* or if delayed after the time prescribed by law for its publication. And the notice is bad if it differs from the assessment in giving the name of the person to whom the land is taxed ;* or if it fails to give the name of the person taxed when the statute requires it;® or if the de- scription of the land is insufficient.? As regards all such cases, the law is well summed up in a case in which the statute required the notice to state the “amount of taxes assessed,” and the notice given was incorrect in this particular. ‘“ The advertisement did not state the amount of the tax assessed on the land, but stated a wholly different amount, and for all legal purposes might as well have contatned no statement whatever of the amount of the tax. To comply with the statute the exact amount must be given. A deviation, however small, must be fatal, because a rule of law cannot be made to fluctuate according to the degree or extent of its violation.”7 : The most important of the usual requisites of notice of sale, are that it shall give a proper description of the land to be sold, and a statement of the time and place when and where the sale dler, 6 N. H., 271. A change in the name of the paper in which the notice is required to be published will not affect the notice. Isaac o. Shattuck, 12 Vt., 668. Where a city common council is required to give notice in a paper to be designated, the designation must be made by the council. Appeal of Pow- ers, 29 Mich., 504. 1 Spear v. Ditty, 9 Vt. 282. See Broughton v. Journeay, 51 Penn. St., 81. ? Langdon v. Poor, 20 Vt., 18. See Hannell v. Smith, 15 Ohio, 134. 3 Hill ». Mason, 38 Me., 461. Compare Brackett v. Vining, 49 Me., 356; Kelly ». Craig, 5 Ired., 129; Magee v. Commonwealth, 46 Penn. St., 358; Pierce v. Benjamin, 14 Pick., 356; Noyes v. Haverhill, 11 Cush., 338. 4Bettison v. Rudd, 21 Ark., 578, citing Wait v. Gilmore, 2 Yeates, 330; Shimmin v. Inman, 26 Me., 232. And see Alvord v. Collin, 20 Pick., 418. 5 Sargeant ». Bean, 7 Gray, 125. 6 Such a defect could not be aided by any information imparted by the auc- tioneer to the bidders at the sale. Ronkendorf v. Taylor, 4 Pet., 349. 1 Bigelow, J.,in Alexander »v. Pitts, 7 Cush., 508. The amount of the tax was $3.20; that stated in the notice was $4.12. Compare Clarke wu. Strick- Jand, 2 Curt. C. C., 439. That an immaterial variation in the notice from that required by the statute may be everlooked, see Ogden ». Harrington, 6 Mc. Lean, 418; Scott 0. Watkins, 22 Ark., 556. CH. xV.] THE SALE OF LANDS FOR UNPAID TAXES. 337 will be made. The requisites for a description in the assessment roll have been heretofore given. In the notice as in the assess- ment, there is precisely the same necessity that the description shall be sufficiently definite to identify the land, in order that the owner may be apprised of the peril to which bis interests are exposed. What has been said regarding the description under the head of assessment, is consequently applicable here. The cases referred to in the margin discuss other defects, or alleged defects, in notices of sale, and may be useful for reference.? Consent of the owner of land to a defective publication of notice, it has been held, would not bind him, as he cannot, in that manner, confer an authority upon an officer of the law, nor can he pass a title to his freehold by mere waiver.’ Proof of giving the notice should be duly made of record, and it ought to show what the facts are, so that any one inspecting the record may know that the statute has been complied with. An affidavit, or a return, which under- takes to state merely the legal conclusion, that “due notice” was given, or “legal notice,” or ‘‘ notice as required by the statute,” or to make any other general allegation of a similar nature, ought not to be received as sufficient evidence that the law has been com- plied with. It is, in fact, evidence only of the officer’s opinion that he has performed his duty.* 1 See Farnum ». Buffum, 4 Cush., 260; Eastman ». Little, 5 N. H., 290; Wil- liams v. Harris, 4 Sneed, 882; Bidwell 0. Webb, 10 Minn., 59; Bidwell ». Cole- man, 11 id., 78. 2? Porter v. Whitney, 1 Greenl., 306; Shimmin v. Inman, 26 Me., 228; Hobbs v. Clements, 32 id., 67; Greene v, Lunt, 58 id., 518; Smith v. Messer, 17 N. H., 420; Pierce v. Richardson, 37 id., 806, 314; Langdon. Poor, 20 Vt., 13; Hughey ». Horrell, 2 Ohio, 231; Styles v. Weir, 26 Miss., 187; Sutton v. Calhoun, 14 La. An., 209. If the statute gives a form for a notice, it is sufficient to follow it, even though it does not specially name the place of sale; that being otherwise fixed. Clark o. Mowyer, 5 Mich., 562. Mr. Blackwell says: ‘‘ Where the form is prescribed by the statute, that form must be strictly and literally fol- lowed; the court will not admit the substitution of a different one.” Blackw. on Tax Titles, 223. True, if it is different in substance; but to say that the statute form must be literally followed, is stating a more strict rule of compli- ance than we can find authorities to justify. The publication of notice, not in the regular issue of a paper, put in extra sheets, is insufficient, unless these are sent to all the subscribers. Davis ». Simms, 4 Bibb, 465. 3Scales v. Alvis, 12 Ala., 617. 4Gilbert ». Turnpike Co., 3 Johns. Cas., 107; Cheatham 0. Howell, 6 Yerg., 22 338 LAW OF TAXATION. [cH. XV. Time and place of sale. The sale must be made at the very time and place provided by law for that purpose. In this re- gard, the utmost strictness is required, since otherwise the whole purpose of the notice, both as regards information to the public and protection to the owner of the land, will be defeated. A sale inside a building, when the law requires it to be at the outer door, has been held to be void.1 Soa sale either before or after tbe time which has been named for the purpose, is wholly with- out warrant of law, and cannot be sustained? If, however, an adjournment from day to day is authorized, in order to complete a sale after it has been begun, perhaps a reasonable presumption that the sale was begun in season, and adjourned as thus pro- vided, should uphold a sale appearing to have been made after- wards, in the absence of any showing to the contrary.* 811; Gwin o. Van Zant,7 id., 143; Nelson »v. Pierce, 6 N. H., 194; Wells». Burbank, 17 id., 393; Lovejoy v. Lent, 48 Me., 877; Briggs». Whipple, 7 Vt., 18; Farnum v. Buffum, 4 Cush., 260; People ». Highway Commissioners, 14 Mich., 528; Games 2. Stiles, 14 Pt., 322. As to the strictness of proof required in showing notice, see County Commissioners v. Clarke, 836 Md., 206; Jarvis e. Silliman, 21 Wis., 607; Iverslie 0. Spaulding, 32 id., 394; Pierce v. Sweetzer, 2 Ind., 649. Evidence of the officer, in general terms, that a sale was made in exuct pursuance of the statute, is not sufficient without specifying what was done. Jesse v. Preston, 5 Grat., 120. ‘ Ruby v. Huntsman, 32 Mo., 501; Vassar ». George, 47 Miss., 713, 721. See State v. Rollins, 29 Mo., 267; McNair v. Jenson, 33 Mo., 312. 2 Wilkins’ Heirs ». Huse, 10 Ohio, 189; Hope v. Sawyer, 14 Ill., 254. The sheriff has no general power to sell for taxes, but only to sell at the time and place fixed by law. Hogins v. Brashears, 13 Ark., 242; Merrick o. Hutt, 15 id., 331; Bonnell v. Roane, 20 id., 114. Where the regular time for sale is the first Monday of March, but a sale at another time may be ordered by the county court, a deed reciting asale at another time, but reciting no order, is void on its face. McDermott 0. Skully, 27 Ark., 226. A sale not begun on the day fixed by law, is void on its face. Prindle v. Campbell, 9 Minn., 212; Park ». Tinkham, 9 Kan., 615; Entrekin v. Chambers, 11 id., 368. 3See Burns v. Lyon, 4 Watts, 363; Bestor v. Powell, 2 Gilm., 197; Lacy o Davis, 4 Mich., 140; Harley v. Street, 29 Iowa, 429; Love v. Welch, 88 id., 192. Where a collector’s sale was advertised at a particular time and place, and the collector’s return states it to have been held in the town and on the day ‘lesig- nated, it will be presumed, in absence of proof to the contrary, that it was held at the precise time and place specified. Spear o. Ditty, 8 Vt. 419. In Connecticut, it seems, a tax collector need not specify in his return the day on which the sale was made. Picket v. Allen, 10 Conn., 146. In Iowa atax deed showing that the land was sold at an adjourned sale, without reciting CH. XV.]| THE SALE OF LANDS FOR UNPAID TAXES. 339 Competition at the sale. The sale must bea public sale, with opportunity for open competition.’ This is a universal require- ment; and it may seriously be questioned whether the legislature possesses the power to provide for the extinguishment of the own- ers title by a secret or private sale. The sale itself is a proceed- ing to perfect a statutory forfeiture. The legislature has proba- bly authority to declare a forfeiture of property taxed, for delin- quency in making payment; but in such an act the sovereign power of the state is pushed to the very limit, and it is believed that a statute which comes short of such a declaration, and leaves the title still in the owner, could not provide for divesting him of it by means of administrative proceedings secretly taken, and of which neither actual nor constructive notice was to be given him. A public sale is the usual and proper course; and this, in order to constitute any protection to the owner, must be so made as to invite competition. And, as having an important influence on this subject, the courts have been compelled to take notice of fraudulent practices, which are almost as common as tax sales themselves. ‘Iam aware,” says one learned judge, “ that there is much management and fraudulent perversion of the law about purchasing at treasurer’s sales. It is our duty to discountenance it’? “Over a sale of this description,” says another, “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 down. The sale is managed by the agent of the state. The owner is not con- sulted. The highest bidder becomes the purchaser, although the sum bid be less than a hundredth part of the value of the prop- erty.”® Acres for cents is the rule; the purchasers who congre- gate at the sale are usually speculators anticipating enormous profits on their investments; and competition in purchases is usu- ally the last thing they desire. The persons in default will, in many cases, be poor and friendless; at any rate they will not be present; and the officer will commonly be found sufficiently dis the causes justifying it, is at least préma facie evidence that the sale was prop- erly held, and that a proper cause for adjournment existed. Lorain v. Smith, 37 Iowa, 67. 1 Jenks ». Wright, 61 Penn. St., 410. 2 Burnside, J., in Donnel ». Bellas, 11 Penn. S8t., 341, 351. 3 Dudley ¢. Little, 2 Ohio, 504. 340 LAW OF TAXATION. [cH. Xv. posed to be complaisant to the interests of those who are at hand. It is not surprising, therefore, if in some instances it is discovered that he has accommodated them to an extent that practically ex- cludes all competition.t It is still more common, perhaps, that purchasers in a friendly way arrange among themselves, that no competition shall take place, and that the harvest shall be equit- ably apportioned between them. All such arrangements are a fraud upon the law, and upon those whose protection is had in view when a public sale is provided for. ‘It is essential to the validity of tax sales, not merely that they should be conducted in conformity with the requirements of the law, but that they should be conducted with entire fairness. Perfect freedom from all influences likely to prevent competition in the sale should be in all cases strictly exacted. The owner is seldom present, and is generally ignorant of the proceeding until too late to prevent it. The tax usually bears a very slight proportion to the value of the property ; and thus a great temptation is presented to parties to exclude competition at the sale, and to prevent the owner from redeeming when the sale is made. The proceeding, therefore, should be closely scrutinized, and whenever it has been character- ized by fraud or unfairness, should be set aside, or the purchaser be required to hold the title in trust for the owner.” Such is the language of the supreme court of the Union, in a case in which the purchaser of land at a tax sale had contrived to prevent com- petition, by the representation that the owner would defeat the sale by redemption. The court, very properly and justly, held the sale to be void as a fraud,’ following in this regard an early case in Ohio, where a combination between bidders to preclude competition was also held fatal to the sale. 'As in Brown ». Hogle, 30 Ill., 119, where the treasurer in proceeding to make sale, permitted favored persons to go through his list and select out in advance the lands they would purchase. 2 Field, J., in Slater v. Maxwell, 6 Wall., 268, 276. See also Kerwer 9, Allen, 31 Iowa, 578. 3 Dudley w Little, 2 Ohio, 504. In Case v. Dean, 16 Mich., 12, it was decided that such a combination between bidders would not defeat the title of a pur- chaser who was nor a party to, nor shown to be aware of it. See also Martin ». Cole, 88 Iowa, 141. In Reeve vo. Kennedy, 43 Cal., 648, it is held that a salr cannot be attacked collaterally for fraud in obtaining it. CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES. » 841 Officer not to buy. In order that there may be free competi- tion, it is essential that the officer who makes the sale should act as salesman only, and not become interested in the purchases. He cannot be allowed to occupy the inconsistent positions of pur- chaser and seller, in which his cupidity would draw him in one direction and his duty in another. The law cannot safely intrust the securities provided for private parties to the care of those who are interested to prevent their accomplishing the purpose for which the securities are provided. No provision of law, it is as- sumed, would ever be made which would subject official integrity to the trial of such conflicts between interest and duty, as would be sure to arise if the officer were allowed to bid ata sale where his duty would be to obtain the highest practicable bid in the in- terest of another. To put himself in that position is regarded as a fraud in the officer upon the law; and on general principles of public policy, the sale which he makes to himself is void. On no other principle can integrity and good faith be secured in pro- ceedings of this ex parte character. Sale in separate parcels. The sale should also be made of the parcels of land as they appear in the list. This is the general rule. Exceptions are made by statutes for various reasons, Where a tract is capable of subdivision, the statute may author- ize the owner of a part to relieve such part from liability by pay- ing a proportionate part of the tax. Under some statutes, any one who will distinctly define any portion of an unimproved tract of land, may pay the tax upon that portion. So statutes permit the owner or claimant of an undivided interest to pay upon that by itself.§ In any of these cases the part of the land, 1 Pierce v. Benjamin, 14 Pick.,356; Clute 0. Barron, 2 Mich., 192; Payson v. Hall, 30 Me., 319; Taylor ». Stringer, 1 Grat., 158; Chandler v. Moulton, 33 .Vt., 245. In Fox ». Cash, 11 Penn. St., 207, it is decided that this principle will not preclude a clerk in the treasurer’s office from becoming a purchaser. To the same effect is Wells v. Jackson Manuf. Co., 47 N. H., 235. The officer selling cannot act as agent for others in buying; though if he does so, and the purchase is afterwards set aside on that ground, the owner must refund to the purchaser what he has paid. Everett o. Bebe, 37 Iowa, 452. 2 See Fellows v. Denniston, 23 N. Y., 420. 3 Without express statutory authority, undivided interests cannot be sold separately when the tract is assessed as an entirety. Roberts ». Chan Tin Pen, 98 Cal., 259. In Vermont, it appears that a collector’s deed of land sold for O42 LAW OF TAXATION. [CH. XV. Go or the interest in the land, upon which the tax is not paid, re- mains subject to sale and may be sold by itself. But in other respects the listing is to be followed in the sale.’ To group lands in the sale which are assessed as separate interests, is incompe- tent, even though they be owned by the same person.? Each parcel is chargeable with its own taxes, and is to be redeemed by paying them; but such a joint sale charges it with the tax upon the other also, and is like issuing one execution upon several judgments, and selling jointly the lands which are charged with separate liens? It may or may not be important to the owner taxes, which describes the land simply as so many acres of a large lot, 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 the lot. Sheafe v. Wait, 30 Vt., 735. 1 Ballance v. Forsyth, 18 How., 18; Walker ». Moore, 2 Dill. C. C., 256; Mor- ton v. Harris, 9 Watts, 319; Woodburn ». Wireman, 27 Penn. St. 18; Hayden v. Foster, 18 Pick., 492; Willey v. Scoville, 9 Ohio, 48; Atkins 0. Hinman, 2 Gilm., 487; Spellman v. Curtenius, 12 I}., 409; Pitkin o. Yaw, 18 id., 251; Penn v. Clemans, 19 Iowa, 872; Ware » Thompson, 29 id., 65; Martin v. Cole, 88 id., 141; Moulton ». Bla‘sdell, 24 Me., 288; Wallingford v. Fiske, id., 386; Audrews v. Senter, 32 id., 894; State v. Richardson, 21 Mo., 420; Baskins v. Winston, 24 Miss., 481. Though a sale together of several lots which really constitute one tract may be good, yet this can only be so when they were as- sessed together, or when they constitute a definite portion or fraction of what was assessed, so that, by mere division or subtraction, the amount of tax chargeable on the property sold can be determined from the assessment roll. McQuesten v. Swope, 12 Kans., 32. In Pennsylvania, the sale of seated lands with unseated is void for want of jurisdiction. Dietrick . Mason, 57 Penn. St. 40. Unseated lands are sold without regard to cwnership. Reading o. Finney, 73 Penn. St., 467. See Cuttle v. Brockway, 82 id., 45. In New York, it is held competent, where distinct interests are held subject to a lien for taxes, to provide by statute for a judicial sale of the whole fee, on the appli- cation of one party, after publication of notice to unknown owners. Jackson v. Babcock, 16 N. Y., 246. 2 Andrews »v. Senter, 32 Me., 394; Woodburn v. Wireman, 27 Penn. St., 18; Hayden ». Foster, 13 Pick., 492. In Minnesota, when an assessment is of a whole block, the treasurer cannot sell in parcels. Moulton v. Doran, 10 Minn., 67. 3 To sell one’s “ right, title and interest” in land is not equivalent to a sale of the land itself. Clarke ». Strickland, 2 Curt. C. C., 489. Where the sale was of an undivided interest when all was assessed together, the sale was held void. Roberts v. Chan Tin Pen, 23 Cal., 259. It would be otherwise if the statute provided for the sale of undivided interests after the tax on other in. terests had been paid. CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES. 843 that he have the opportunity of a separate redemption, but the fact that it possibly may be so is sufficient reason why the law should protect the right. Surplus bond. Various methods are adopted in different states to save something to the owner, if that shall be possible, when his land is sold. One of these is, to have the land put up for sale for what it will bring, and if the bid exceed the tax, with interest and expenses, require the surplus to be deposited in the state or county treasury for the benefit of the party who shall show his right. Another is to require a bond to be given by the purchaser to account for the excess over the taxes and charges, which bond shall be a lien on the land.* Still another is to require so much of the land to be sold as may be requisite to satisfy the tax and charges, either prescribing a general rule as to where the parcel sold shall be taken off, or allowing a discretion to the offi- cer in that regard. Excessive sale. It has been said that in the absence of any statute limiting the officer’s right to sell, to so much as would be requisite to pay the tax and charges, a restriction to this extent would be intended by the law.? Whether thisis so or not is per- haps not very material, as it is not for a moment to be supposed that any statute would be adopted without this or some equivalent provision for the owner’s benefit. And such a provision must be strictly obeyed. A sale of the whole when less would pay the tax is void,’ and a sale of the remainder after the tax had been 1 Peters v. Heasley, 10 Watts, 208; Loud v. Penninan, 19 Pick., 589; People v. Hammond, 1 Doug., Mich., 276. The giving of the surplus bond is a con- dition precedent to the passing of the title to the purchaser at the tax sale. Sutton v. Nelson, 10 8. & R., 238; McDonald ». Maus, 8 Watts, 364; Donnel v. Bellas, 10 Penn. St., 341; Cuttle ». Brockway, 24 id., 145. As to suit upon it, see Crawford ». Stewart, 88 Penn. St., 34. That there is no presumption such a bond was given, where the tax purchaser does not take possession or pay taxes, sec Alexander v. Bush, 46 Penn. 8t., 62. 20 Brien »v. Coulter, 2 Blackf., 421. The power to provide by law that the whole should be sold, when not necessary to pay the tax, was denied in Mar- tin ». Snowden, 18 Grat., 100; Downey v. Nutt, 19 id., 59. 3 Loomis »v. Pingree, 43 Me., 299; Lovejoy v. Lunt, 48 id. 877; French ». Patterson, id., 203, 210; Ainsworth ». Dean, 21 N. H., 400; Lyford ». Dunn, 32 id., 81; Jaquith v. Putney, 48 id. 1388; Avery v. Rose, 4 Dev., 554; Love v. Welbourn, 5 Ired., 347; Baskins v. Winston, 24 Miss. 481; Crowell v. Good- 344 LAW OF TAXATION. [CH., XV. satisfied by the sale of a part would also be void, for the very plain reason that the power to sell would be exhausted the mo- ment the tax was collected. It has been shown in a preceding chapter that an excessive levy is void, whether it is made excessive by including with lawfal texes those which are unlawful, or in any other manner. If the levy would be void, there would of course be nothing to uphold asale. And if a valid levy were to be increased afterwards by unlawful additions, the sale would be equally bad. A sale for anything more than is lawfully chargeable is a sale without juris- diction, and therefore void.? Sale to highest bidder and for cash. The sale must be to the highest bidder, or, which is equivalent, when that method is prescribed, to the person who offers to pay the tax and charges for the smallest parcel of land. And as the conveyance must be in execution of a sale actually made, if the sale is made to one man, and by arrangement the deed is made to another, such deed can convey no title whatever.’ The sale must be for cash. The officer can give no credit where the statute provides for none.® win, 3 Allen, 535; Stead’s Executors v. Course, 4 Cranch, 408; Mason »v. Fear- son, 9 How., 248; French v. Edwards, 13 Wall., 506. Under the Massachusetts statute providing that if an estate is capable of division the collector may sell so much thereof as would be sufficient to discharge the taxes and intervening charges, it must appear by the collector’s deed or otherwise, that the land was so divided that no greater portion was sold than was necessary to satisfy the tax and charges, or that it could not be conveniently divided to that extent. Crowell v. Goodwin, 3 Allen, 535. 1See Washington v. Pratt, 8 Wheat., 681; Mason v. Fearson, 9 How., 248. When the land as assessed consists of several distinct parcels constituting one tract, if the several parcels are offered separately and no bids obtained, the whole may then be offered together. State o. Maxwell, 6 Wall., 268. Wherea quarter section contained several village lots, it was held incompetent to sell off an acre from one side for the tax on the whole. Ballance v. Forsyth, 13 How., 18. ?McQuilkin v. Doe, 8 Blackf., 581; Hutchens ». Doe, 3 Ind., 528; Harden- burgh v. Kidd, 10 Cal. 402; McQuesten v. Swope, 12 Kans., 82. Sale void where an illegal percentage is added. Bucknall ». Story, 36 Cal., 67. And see ante pp. 295-297. 3See Cardigan v. Page, 6 N. H., 182; Bean v. Thompson, 19 id., 290. 4 Keene ». Houghton, 19 Me., 368. 'Cushing 2. Longfellow, 26 Me., 306. In Longfellow » Quimby, 29 id, CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES. 845 it must not be for more than is due, as this would be a plain excess of jurisdiction.'. Observing the statutory directions and precautions, and the principles of the common law and of public policy, to which reference has been made, the officer may trans- fer to the purchaser the full interest in the land which has been assessed, and may convey a complete and perfect title, if such is the provision of law on the subject.? And inadequacy of price does not defeat such a sale; if it did, the power to collect revenue by this method would be futile.® Who may acquire tax titles. Some persons, from their rela- tion to the land or to the tax, are precluded from becoming pur- chasers. The title to be transferred on such a sale is one based on the default of the person who owes to the government the duty to pay the tax. But one person may owe this duty to the government, and another may owe it to the owner of the land. Such a case may exist where the land is occupied by a tenant, who, by his lease, has obligated himself to pay taxes. Where this is the relation of the parties to the land, it would cause a shock to the moral sense if the law were to permit this tenant to neglect his duty and cut off his lessor’s title by buying in the land ata tax sale. So the mortgagor, remaining in possession of the land, owes it to the mortgagee to keep down the taxes; and 196 it was decided, that where the sale was for cash, the giving of credit to the purchaser afterwards would not defeat it. In Donnel v. Bellas, 84 Penn. St., 157, the treasurer took a note from the purchaser instead of cash. The sale was held void, and incapable of being affirmed by the treasurer by receiving payment after leaving office. See the same case, 10 Penn. St., 341; 11 id., 341. 1 Peters v. Heasely, 10 Watts, 208; Loud v. Penniman, 19 Pick., 589. A sale for the taxes of several years, one of which has been paid, is void. Kins- worthy 2. Mitchell, 21 Ark., 145. And see Douglass». Short, 3 Dev., 482. Sale of Jands for the tax of the wrong party is void. Gardner v. Brown, Meigs, 354. Sale for two taxes, one of which is illegal, also void. Elwell v. Shaw, 1 Greenl., 839; Hardenburgh v. Kidd, 10 Cal., 402. 2Tt has already been stated, that the separate interests of different owners are, under some laws, assessed separately. In such a case, a sale of the land for a tax assessed against one does not cut off the interests of others. Irwin o. Bank of United States, 1 Penn. St., 349. Where the whole title is sold, it cuts off back taxes, unless other provision is made. Trego ». Huzzard, 19 Penn. 8t., 441; Irwin v. Trego, 22 id., 368; Same v. Same, 35 id., 9. 3 Sec State v. Maxwell, 6 Wall., 268. 346 LAW OF TAXATION.: [cH. XV. the law would justly be chargeable with connivance at fraud and dishonesty, if a mortgagor might allow the taxes to become delinquent, and then discharge them by a purchase which would at the same time cut off his mortgage. There is a general prin- ciple applicable to such cases; that a purchase made by one whose duty it was to pay the taxes shall operate as payment only; he shall acquire no rights as against a third party, by a neglect of the duty which he owed to such party. This principle is universal, and is so entirely reasonable as scarcely to need the support of authority. Show the existence of the duty, and the disqualification is made out in every instance.’ The cases to which attention is called in the margin, and many others to which they refer, will show the application of the rule under a great variety of circumstances. It has been applied to cases where the default was only in part that-of the purchaser; as where he was tenant in common with others,’ or where his own land was taxed as one parcel with that of another, and the 'Varney v. Stevens, 22 Me., 331; Gardiner v. Gerrish, 23 id. 46; Fuller o. Hodgdon, 25 id., 243; Mathews »v. Light, 32 id., 305; Coombs ». Warren, 34 id., $9; Williams o. Hilton, 35 id., 547; Haskell v. Putnam, 42 id., 244; Coxe v. Wolcott, 27 Penn. St., 154; Coxe v. Gibson, id., 160; Oldhams v. Jones, 5 B. Monr., 458, 467; Blake v. Howe, 1 Aikens, 806; Willard 2. Strong, 14 Vt., 582; Lacey v. Davis, 4 Mich., 140; Taylor o. Snyder, Wal. Ch., 492; Frye o. Bank of Tlinois, 11 Ill, 367; Prettyman »v. Walston, 34 id., 175; Higgins ». Crosby, 40 id., 260; Smith v. Lewis, 20 Wis., 369; Avery v. Judd, 21 id., 262; Barrett a. Welch, 22 id., 175; Phelan v. Boylan, 25 id., 679; Edgarton ». Schneider, 26 id., 385; Brown v. Simons, 44 N. H., 475; McLaughlin o. Green, 48 Miss., 175, 207; Carithers v. Weaver, 7 Kans., 110; Krutz v. Fisher, 8 id., 90; Kelsey 2. Abbott, 13 Cal., 609; Barrett. 0. Amerein, 36 id., 322; McMinn v. Whelan, 27 id., 800; Coffinger v. Rice, 33 id., 408; Garwood v. Hastings, 88 id., 216; Savings and Loan Society v. Ordway, 38 id., 679. ? Lloyd v. Lynch, 28 Penn. St., 419; Maul v. Rider, 51 id., 877; Piatt». St. Clair’s Heirs, 6 Ohio, 227; Page v. Webster, 8 Mich., 263; Butler v. Porter, 13 id., 262; Dubois ». Campau, 24 id., 360; Choteau ». Jones, 11 II1., 800, 322; Brown v. Hogle, 20 id., 119; Chickering ». Faile, 38 id., 342; State o. Willis- ton, 20 Wis. 240; Phelan ». Boylan, 25 id., 679; Baker v. Whiting, 3 Sum., 475, Downer’s Adim’r ». Smith, 38 Vt. 464. That payment by one tenant in common enures to the benefit of all, see Chickering o. Faile, 38 Ill., 342; McConnel v. Konepel, 46 id., 519. As to what right one might have to buy the interest of his cotenant after paying his own. tax, there is some discussion in Butler v. Porter, 13 Mich., 262. As to the right of one tenant in common to buy in a matured tax title, see Kirkpatrick o. Mathiot, 4 W. & 8., 251; Reinboth v. Zerbe Run Co., 29 Penn. St., 189; Frentz v. Klotsch, 28 Wis., 312. CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES. 84? whole was sold together;! and to a case where an agent to pay taxes made a purchase of his principal's lands, assuming to jus- tify himself on the ground that his principal had neglected to supply him with the means of making payment? In all. such cases, and all to which the like reasons apply, the purchase, as between the parties, is in law a payment only; or, if made at sec- ond hand, from another who was purchaser at the public sale, it is allowed to operate, for the purposes of justice, only as a redemp- tion,? and the party making it may have a remedy over for the money paid, or for any portion thereof, if in equity any other person who is benefited by the purchase ought to have paid it; otherwise not. Some other cases are not so plain, because the duty as between the parties is not so definitely determined by their contract, or by their legal relation. While a mortgagor in general cannot be allowed to cut off his mortgage, by buying in the land at tax sale, yet if the mortgagee were in possession, receiving the issues and profits, and bound to pay the taxes himself, it might not be so clear that the mortgagor should be precluded from taking ad- vantage of the mortgagee’s neglect. If it were to be so held, there would seem to be reason for holding that the mortgagee also, by reason of his relation to the title, was precluded from becoming purchaser of the mortgagor's interest at a tax sale, and that his remedy would be confined to a payment for the protec- tion of his lien, with a remedy over for the amount paid. It cannot be said in such a case, that either mortgagor or mortgagee is under no obligation to the government to pay the tax. On 1 Cooley v. Waterman, 16 Mich., 366. ? McMahon ov. McGraw, 26 Wis., 614. As to the disqualification of the agent to purchase his principal’s land at tax sale, see further Oldhams »v. Jones, 5 B. Monr., 458; Bartholomew »v. Leach, 7 Watts, 472; Matthews v. Light, 32 Me., 805; Lindsley v. Sinclair, 24 Mich., 380; Krutz ». Fisher, 8 Kans., 90; Schedda v. Sawyer, 4 McLean, 181; Kelsey ». Abbott, 13 Cal., 609; Bernal v. Lynch, 36 id., 185, 146; Barton v. Moss, 82 Il., 50. One who has bargained for the land, and is in possession under an agreement to purchase, occupies a similar position. Haskell v. Putnam, 42 Me., 244; Voris 0. Thomas, 12 Il. 442; Oliver v. Croswell, 42 id., 41. See Coxe v. Wolcott, 27 Penn. St., 154; Quin »v. Quin, 27 Wis., 168. -38ce Shepardson v. Elmore, 19 Wis., 424; Coxe ». Wolcott, 27 Penn. St., 154; Carithers v. Weaver, 7 Kan., 110; Bernal ». Lynch, 36 Cal., 185, 146. \ 348 LAW OF TAXATION. [CH. XV. the contrary, the tax being one that purposely is made to over- ride the lien of the one as well as the title of the other, it might well, as it seems to us, be held that neither mortgagor nor mort- gagee was at liberty to neglect the payment, as one step in bet- tering his condition at the expense of the other, but that the pre- sumption of law should be that the party purchasing did so for the protection of his own interest merely. And so are some of the authorities.! Whether one should be precluded by the naked fact that he claims title to the land, or that he has possession of it, from making a purchase in extinguishment of the right of another with whom he stands in no contract or fiduciary relations, is a question often touched by the Ciscussions of courts without having as yet been very fully or comprehensively examined. So far as the cases hold that one who ought, as between himself and some third per- son, to pay the taxes, shall not build up a title on his own default, the principle is clear and well founded in equity. But when one owes no duty to any other in respect to the land, it is not so clear upon what principle of equity or of estoppel such other is to set up, as against him, his neglect to perform in due season his duty to the government. There are some cases in which it has been distinctly held that possession, when the tax was assessed, fixed upon the possessor ‘Fisk v. Brunette, 80 Wis., 102. In this case the mortgagee held the legal title, and he is spoken of in the opinion as being, in a certain sense, a trustee. Dizon, Ch. J., delivering the opinion, makes no mention of the earlier case of Sturdevant o. Mather, 20 Wis., 576, 585, in which he had referred to the same question, and to the decision in Williams v. Townsend, 31 N. Y., 411, 415, in a manner understood by the reporter to imply an approval. In the same connection he also referred “ to Walthall . Rives, 84 Ala., 91, and Harrison 2. Roberts, 6 Fla., 711, in which it was held that a mortgagee may purchase and hold a paramount title under older judgment liens, and to Chapman ». Mull, 7 Ired. Eq., 292, and the observations of Sir Thomas Plummer, M. R., in Cholmondely 2. Clinton, 2 Jac. & Wal., 181, et seq., upon the gencral question how far the principles applicable to dealings between trustee and cestut que trust apply to the case of mortgagor and mortgagee.” The Illinois cases are very emphatic, that a mortgagee, like a trustee, cannot affect the rights of the mortgagor by purchasing the property at a sale for delinquent taxes accruing on the premises. Chickering v. Faile, 26 Ill., 507; Moore o. Titman, 44 id, 367. In Brown v. Simons. 4 N. H., 475, is a like decision, in a case in which the mortgagee was in possession. It is not very clear how far Williams a Townsend, supra, was designed to lay down a contrary doctrine. CH. Xv.] THE SALE OF LANDS FOR UNPAID TAXES. 849 the duty to pay, and precluded his becoming a purchaser at a sale for the taxes when they became delinquent. In the leading case the occupant had gone into possession under an invalid tax title, and by the decision he was precluded from relying upon a second title which accerued while he was in the occupancy of the land.!. The subject is dismissed with very brief mention, the court appearing to regard the claim as inequitable and unjust, but for what reason is not very clearly explained. Other cases treat the point as equally plain.” But it seems to us that it is deserving of more 1 Douglas v. Dangerfield, 10 Ohio, 152. ? Choteau ov. Jones, 11 I11., 800, 822, per Treat, Ch. J. “The purchase of a portion of the land by George W. Jones, at a sale for taxes, did not stregthen his title. That purchase was made prior to the sale by the administrator. He was then one of the owners of the land, and as such bound to pay the taxes assessed upon it. The purchase was but a mode of paying the taxes legally chargeable against him.” “ He admits in his answer that he suffered the land to be sold, and bid it in for the purpose of defeating an older tax title, and not with a view of acquiring any new title.’ This doctrine is affirmed in Lacey v. Davis, 4 Mich., 140, 152, where it is said by Martin, J.,to be of no importance whether a party claiming title to land is assessed personally for the tax or not. “It is the possession which creates the disability in the purchaser.” The case holds that if one acquires the possession while the tax is a lien on the land, he is bound to discharge the lien, and cannot buy attax sale. But see Lybrand v. Haney, 81 Wis., 230; Blackwood ». Van Vleet, 30 Mich., 118. In Tweed ». Metcalf, 4 id., 579, it was decided that one who had bought at a tax sale might buy the same land at a subsequent sale made at any time before redemption from the first had expired. The doctrine of Choteau o. Jones, supra, was affirmed in Voris v. Thomas, 12 IIl., 442, and the same general doctrine is as- serted in Smith v. Lewis, 20 Wis., 350, 354, though there the case was between mortgagee and the assignee of the mortgage, and the relation of the parties precluded a purchase. The same remark may be made of Dubois v. Campau, 24 Mich., 368. Bassett 0. Welch, 22 Wis., 175, goes the full length of deciding that the mere fact of possession when the taxes are assessed is a disqualifica- tion to buy. Jones 2. Davis, 24 Wis., 229, was a case where one in possession of Jand had endeavored to cut off a judgment lien by a purchase at tax sale, corresponding to the case of purchase by a mortgagor. Whitney v. Gunder- son, 81 Wis., 359, 379, asserts the broad doctrine that if one was in possession when the tax was assessed, “it then became his duty to pay the taxes, and he could not permit the lands to be sold for such taxes, and obtain a tax deed for the purpose of destroying an outstanding title.” And see McMinn ». Whelan, 27 Cal., 300; Burrett 0. Amerein, 36 Cal., 822. In Blakely v. Bestor, 18 Ill, 708, 714, Trumbull, J., apparently puts the case on the ground of an obligation or duty as between parties. “It is insisted,” he says, “that the defendant is not in a position to avail himself of an outstanding tax title, be it ever so reg- ular, for the reason that he is shown by the record to have been in the poss es- 350 LAW OF TAXATION. [cH. xv. consideration whether, where parties stand to each other in the position of adverse claimants to land, either of them can insist that the other shall discharge a duty to the government for his protection. There being nothing in the relation of the parties to each other upon which an estoppel can be raised, it is necessary to look elsewhere for the disqualification insisted upon; and this can only be found in some general rule of public policy. It is certainly an imperative requirement of public policy that the rev- enues of the state shall be collected, and that no one shall be al- lowed to defraud the treasury of his due proportion; but in the case where a tax sale has been made there is no fraud, and the revenue ch:rgeable upon the land has been received. No wrong has consequently been done to the state. There has been delay in payment, but it is one for which the state makes ample provis- ion, and for which it charges the party concerned with all costs, and an interest. sufficient fully to compensate for any public in- convenience. It is not perceived that the state can then have any complaint to make, as the duty owing to it, though performed tardily, has been performed at last. The state, then, not being wronged in the purchase, it would seem that whatever individual objects to it ought to be able to point out how and in what par- ticular it wrongs him, It is difficult to dispute the truth of what is said by the supreme court of Pennsylvania, that “there is nothing in reason or law to sion of the premises at the time the taxes accrued and the sale took place, wherefore it is said that 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 be- cause a person is in possession of premises he is bound to pay the taxes as- sessed upon them; he may occupy them as a tenant under an agrcement that his landlord shall pay the taxes, and in such case there would be no obliga- tion on tle tenant to pay them, particularly if, in pursuance of the agreement, they were listed for taxation in the landlord’s name.” In Swift ». Agnes, 33 Wis., 228, it is decided that where one owning land, and bound to pay taxes thereon, permits them to be sold and deeded for such taxes, and then purchases the tax title, and causes it to be conveyed to a third person for his benefit, he cannot set up such title as a defense in ejectment against one who has pur- chased at a sale on execution against him since the execution of the tax deed. There is nothing in the fact that the owner of land has become the purchaser at tax sale which can estop him from claiming the surplus moneys. Russell o. Reed, 27 Penn. St., 166. CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES. 351 prevent a man who holds a defective title from purchasing a bet- ter at a treasurer's sale for taxes”? As between himself and any adverse claimant it is an unimportant consideration whether the one or the other was in possession. If the state, in taxing land, takes any notice of ownership, it is either for the convenience of the officers in making collections, or for information to parties concerned. The tax is upori every possible interest in the land; and all parties having interests are equally under obligation to the state tomake payment. The penalty for failure is a forfeiture or sale which will cut them all off; and while, without doubt, any one may defeat such a sale who can give satisfactory reasons for an assertion that it would be unjust to him for the purchaser to be allowed to rely upon it, it is not perceived that any other person can well insist upon a right to do so. This, of course, is aside from any question of irregularities or defects; in general, any per- son may rely upon those when the tax title is made use of against him; as they go, or may go, to the power of the officer to sell at all? Bids by the state or county. It is not an uncommon provis- ion that, if no bidders offer to take the land and pay the tax, it shall be bid in for the state or for the county. A purchase on such a bid would give the state or county the usual rights of a 1 Woodward, J., in Coxe v. Gibson, 27 Penn. St., 160,165. And see Black- wood v. Van Vleet, 30 Mich., 118. 2 Tt is held in California that one in possession of lands, if under no legal cr moral ebligation to pay the tax, may buy in the lands at tax sale. Moss »v. Shear, 25 Cal., 38. The same ruling is made in Kansas. Bowman v. Cock- rill, 6 Kans., 311, 332. In Blackwood ». Van Vleet, 30 Mich., 118, it is said that “to preclude any person from making and relying upon a purchase of lands at tax sale, there must be something in the circumstances of the case which imposes upon him a duty to the state to pay the tax, or something which renders it inequitable, as between himself and the holder of the exist- ing title, that he should make the purchase.” And it is denied that the mere fact, that one is in possession of the land when the tax is levied, should pre- clude his becoming purchaser when the land is not assessed to him, and he is bound by no contract relations to pay the tax. The persen taxed cannot get a title at tax sale. Garwood v. Hastings, 38 Cal., 216; McMinn v. Whelan, 927 id., 300. A collusive purchase, made to cut off a mortgage, may be set aside. Savings and Loan Society v. Ordway, 38 Cal., 679; Stears o. Hollen- beck, 88 Towa, 550. 3a2 LAW OF TAXATION. [CH. XV. purchaser, and no more. Whether a deed would be requisite to carry into effect such a purchase must depend upon the statute.’ Different sales at the same time. Where the taxes of several years are delinquent at the same time, sales are sometimes per- mitted to be made separately for each year's tax. Such sales might raise serious questions as between purchasers, if two or more should severally buy the land at sales bearing the same date, and subject to the same redemption. In Jowa it seems that such separate sales are unauthorized? Such questions might and should be settled by statute. Certificate of sale. The sale is usually accompanied or fol- lowed by the issue to the purchaser of a certificate, which recites the fact of sale, and states the time when the. purchaser will be- come entitled to a conveyance.* No title passes until the time 1 Commissioners authorized to bid the amount of the tax on behalf of the county, if they bid more, may have the land left on their hands unless the county sce fit to take it. The bid cuts off the prior title. Rusbell v. Reed, 27 Penn. St., 166. And see Cuttle v. Brockway, 32 id., 45. Commissioners au- thorézed to bid off land for the United States, unless some person will bid two- thirds the appraised value, are not compelled to do so, and a sale to another bidder fur less is not invalid. Turner v. Smith, 14 Wall., 553, 562. Where lands are bid in by a county at a tax sale,and the law provides for their being subsequently sold after a specified notice, a private sale without the notice is void. The provision for such a sale is to be regarded as a proceeding to col- lect taxes, and must be followed. Jenks v. Wright, 61 Penn. St., 410. In Kansas, the county treasurer holds a certifizate of sale to the county until it can be sold to an individual, and then assigns the certificate. The county commissioners cannot control his action in this regard. State v. Magill, 4 Kan., 415. ? Preston v. Van Gorder, 31 Iowa, 250; Shoemaker v. Lacey, 38 id., 277. In Iowa, where the treasurer, on the same day, made different sales of the same land for the taxes of different years, and the owner, being aware of but one sale, had redeemed therefrom in good faith, he was held entitled to redeem from the other after the statutory time, by paying the amount for which the land was sold, with legal interest and penalty. Shoemaker v. Lacey, 38 Iowa, 277, citing Noble v. Bullis, 23 id., 559. In California, it is held that a sale for a city tax of one year will not cut off the tax for the preceding year. Cowell v. Washburn, 22 Cal., 519. 3 The certificate is evidence of the sale, but the record of sale is better evi- dence. McCready v. Sexton, 29 Iowa, 356; Henderson v. Oliver, 32 id., 512; Clark v. Thompson, 37 id., 536. CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES. 853 allowed for redemption, if any, has expired,’ nor until the proper conveyance has been executed. Until then the purchaser has an inchoate right, which he might perhaps protect as a purchaser on execution might;? but he has no title.® The deed. The requirements of a deed are not uniform in the different states. In general it should recite enough to show an authority to sell, butit need not set out all the prior proceedings. The tax deed as evidence. It has been shown that, according to the principles of the common law, the purchaser at a tax sale when he attempts to enforce rights under his purchase, is under the necessity of taking upon himself the burden of showing that the purchase was made pursuant to law. To do this he must show the substantial regularity of all the proceedings. The deed of ‘In Kansas it seems to be held that title passes at the sale, subject to be de- feated by redemption. Stebbins v. Guthrie, 4 Kans., 353. 3See Ferguson v. Miles, 3 Gilm., 358; Stout o. Keyes, 2 Doug., Mich., 184. Under the Missouri statute it has been held that the tax deed does not relate back to the sale, where redemption was allowed afterwards. Donohoe ». Veal, 19 Mo., 331. 3Tilson v. Thompson, 10 Pick., 359; Hightown ». Freedle, 5 Sneed, 312; Alexander v. Bush, 46 Penn. St., 62; Stephens ». Holmes, 26 Ark., 48. A deed executed after the officer’s term has expiredis void. Hoffman »v. Bell, 61 Penn. St., 444, But it is no objection that it was executed after the taxpayer’s death. eCurry v. Fowler, 3 A. K. Marsh., 504. 4See Little ». Herndon, 10 Wall., 26; Sibley o. Smith, 2 Mich., 486; Elston v. Kennicott, 46 Ill, 187; Wetherbee ». Dunn, 32 Cal., 106; Large v. Fisher, 49 Mo., 307. Where a statute authorized a sale of real estate after fourteen days demand of payment, but required the deed to “state the cause of sale,” ete. and also the particulars of the proceedings preparatory to a sale: Held, thata deed was void which did not state that the taxes were not paid within fourteen days after demand. Harrington ». Worcester, 6 Allen, 576. Where notice is required by law to be given to the owner before a deed is made, the require- ment must be strictly complied with. Denike v. Rourke, 3 Biss. 39 A tax deed is not void for slight irregularities or variances from the statutory form Bowman ». Cockrill, 6 Kans., 311; Haynes v. Heller, 12 id., 381. The recitals jn a tax deed are in Kansas prima facie evidence of the facts recited. Hobson ». Dutton, 9 Kans., 477. The deed shows no title without acknowledgment. Tilson ». Thompson, 10 Pick., 359; Stierlin v. Daley, 87 Mo., 483; Dalton v. Fenn, 40 id., 109. In New York it seems that if the deed purports to be given ona sale of the lands as nonresident, when in fact they were assessed to a former owner, it is void. Ratler v. Worth, N. Y. Court of Appeals, 11 Albany Law Journal, 401. 23 354 LAW OF TAXATION, [cH. Xv. conveyance would not stand for this evidence. It would prove its own execution; nothing more. The power to execute it must be shown before the deed itself could have any force; for no of- ficer can make out his own jurisdiction to act by the mere fact of acting. In all administrative proceedings the facts upon which jurisdiction depends must always be shown by him who claims anything under its exercise. This principle is undisputed. It leads us inevitably to this conclusion; that whoever claims lands under a sale for delinquent taxes, must take upon himself the bur- den of proving that taxes were duly assessed, which were a charge upon the land, and that the successive steps were taken which led to a lawful sale therefor, at which he or some one under whom he claims became the purchaser.! The difficulty of making the coniplete showing in these cases has been thought to be so great as to render some modification of the rule reasonable, and statutes have from time to time been made in that direction. The early statutes were probably not as comprehensive in their terms as their authors intended ; at least, 1Stead’s Lessee v. Course, 4 Cranch, 403; Williams v. Peyton, 4 Wheat., 77; McClung v. Ross, 5 id., 116; Thatcher v. Powell, 6 id., 119; Rondendorff ». Taylor, 4 Pet., 349; Clarke v. Strickland, 2 Curt. C. C., 489; Minor v. McLean, 4 McLean, 138; Moore v. Brown, 4 id., 211; same case in error, 11 How., 414; Mahew v. Davis, 4 McLean, 213; Parker». Overman, 18 How., 137; Brown og Veazie, 25 Me., 859; Payson ». Hall, 80 id.,319; Loomis v. Pingree, 43 id., 299; Lovejoy v. Lunt, 48 id., 377; Williamsburgh v. Lord, 51 id., 599; French ». Pat- terson, 61 id,. 203; Doe v. Roe, 2 Hawks, 17; Avery v. Rose, 4 Dev., 549; Love v. Gates, 4 Dev. & Bat., 358; Garrett » White, 3 Ired. Eq., 181; Jordan v. Rouse, 1 Jones, L., 119; Yancey ». Hopkins, 1 Munf., 419; Christy 0. Minor, 4 id., 481; Nalle x. Fenwick, 4 Rand., 585; Allen v. Smith, 1 Leigh, 231; Chapman v. Dee, 21d., 329; Polk 2. Rose, 25 Md., 153; Beatty o. Mason, 80 id. 409; Dyer o. Boswell, 39 id., 465; Doev Insurance Co.,8 5. & M., 197; Natchez v. Minor, 10 id., 246; Rule v. Parker, Cooke, 278; Hamilton v. Burum, 3 Yerg.,855; Pope v. Headen, 5 Ala., 433; Lyons v. Hunt, 11 id.,295; Blakeney v. Ferguson, 8 Ark., 272; Shearer v. Woodburn, 10 Penn St., 511; McReynolds »v. Longenberger, 57 id. 18; Bucknall o. Story, 36 Cal.,67; Richardson ». Dorr, 5 Vt., 9; Fitch v. Casey, 2 Greene, Iowa, 300; Kellog 0. McLaughlin, 8 Ohio, 114; McMillan v. Robbins, 5 id., 31; Williams ». State, 6 Blackf., 36; Doe ». Flagler, 1 Ind. 542; Doe v. Sweetzer, 2 id., 649; Barnes v. Doe, 4 id., 132; Kyle». Malin, Sid., 34; Atkins v. Kinman, 20 Wend., 241; Doughty v. Hope, 3 Denio, 595; Waldron o. McComb,1 Hill, 107; Sharp ». Spier, 4 id., 76; Tallman »o. White, 2 N.Y., 66; Bennett v. Buffalo, 17 id., 383; Cruger 0. Dougherty, 43 id., 107; Chicago v. Wright, 32 Ill., 192; Scammon v. Chicago, 40 id., 146. CH. xv] THE SALE OF LANDS FOR UNPAID TAXES. 355 as construed by the courts, they did not change to any con- siderable extent the former rule. Thus, a statute which declared that the deed should be evidence of the regularity of the sale, was held to prove only the regularity of the proceedings at the sale, leaving the purchaser still under the necessity of showing the regularity of the prior proceedings. Where the statute makes the deed prima facie evidence that the requirements of the sale have been complied with, it is necessary. first that the holder of the tax title should prove the performance by the assessor and collector of the several acts which are condi- tions precedent to the power to sell; and then the contestant is put to proof that the requirements af the law, as to time and man- ner of sale, were not complied with.? So a statute which makes the deed evidence of a title in fee simple in the owner, is held to be evidence only of such a title after the right to give the deed has been shown by the proof of anterior proceedings that support. it.® In later statutes language has been chosen with more care, and the tax deed, given by a competent officer, has been declared prima facie evidence not only of the regularity of the sale, but of all prior proceedings, and of title inthe purchaser. This, it will be seen, changes wholly the burden of proof, which before rested upon the purchaser, and casts it upon the party who would con- test the sale. The purchaser is no longer under the necessity to show the correctness of the proceedings, but the contestant must show in what particular he claims them to be incorrect. The power to enact such laws has been denied in argument, but the decisions sustain them.’ These decisions are that the statutes 1 Tallman v. White, 2 N. Y. 66; Striker v. Kelly, 2 Denio, 323; Doughty ». Hope, 3 id. 594; Beekman ». Bigham, 5 N. Y. 366; Westbrook ». Willey, 47 id. 457; Rowland ». Doty, Har. Ch.3; Scott 0. Young Men’s Society, 1 Dong. Mich. 119; Latimer v. Lovett, 2 id. 204; Ives v. Kimball, 1 id. 308; Yenda v. Wheeler, 9 Texas, 408; Wilson v. Lemons, 23 Ind. 433. 2 Robson 2. Osborn, 13 Texas, 298. 2 See cases above cited. Also Merrick v. Hutt, 15 Ark. 331. A declaration jin a tax law that the tax deed should be “ good and effectual both at law and in equity,” gives no special sanction to the conveyance beyond that derived from the general principles of law. The purchaser must show that all pre- requisites were complied with. Hadley v. Tankersley, 8 Texas, 12. 4 Pillow ». Roberts, 18 How. 472; Williams ». Kirtland, 13 Wall. 306, 310; Freeman v. Thayer, 83 Me. 76; Orono v. Veazie, 57 id. 517; Hand o. Ballou, 856 LAW OF TAXATION. [cu. xv. take away no substantial rights; they only regulate the order of proceeding in the legal tribunals, in exhibiting the evidence of sub- stantial rights; and they rest on the solid foundation of the supreme authority of the legislature over the whole subject of evidence ; an authority, however, which has this very plain limit: that it cannot deprive one of his property by making his adver sary’s claim to it, whatever that claim may be, conclusive of its own validity. It cannot, therefore, make the tax deed conclusive evidence of the holder's title to the land. Statutes giving a peculiar effect to conveyances on sales made for taxes, unless in express terms declared applicable to the case 12.N. Y., 541; Forbes v. Halsey, 26 id.,52; Johnson v. Elwood, 53 id., 485 ; Steed- man ». Planter’s Bank, 7 Ark., 424; Briscoe v. Coulter, 18 Ark., 423; Butts v. . Francis, 4 Conn., 424; Ray v. Murdock, 36 Miss., 692; Belcher v. Mhoon, 47 id.,613; Abbott v. Lindenbower, 42 Mo., 162; S. C.,46 id., 291; Cook v. Hackle- man, 45 id. 317; Huffman ». Bell, 61 Penn. St., 444; Delaplaine v. Cook, 7 Wis., 44; Stewart v. McSweeney, 14 id., 468; Whitney 0. Marshall, 17 id., 174; Smith v. Cleveland, 17 id., 556; Lumsden ». Cross, 10 id., 282; Allen ». Arm- strong, 16 Iowa, 508; Adams 2. Beale, 19 id., 61; Eldridge v. Kurhl, 27 id., 160; Clark v. Connor, 28 id., 311, 315; Hurley ». Woodruff, 30 id., 260; Gen- ther v. Fuller, 36 id. 604; Sprague ». Pitt, McCahon, 212; Sibley v. Smith, 2 Mich., 486; Lacey ». Davis, 4 id., 140; Amberg». Rogers, 9 id., 882; Wright ». Dunham, 13 id. 414; Groesbeck v. Seeley, id., 8329; Stanbery »v. Sillon, 18 Ohio (N. 8.), 571; Turney v. Yeoman, 14 Ohio, 207; Smith o. Chapman, 10 Grat., 445. It is competent to make certificate of city engineer prima facie evidence of the validity of a charge against owners of property for special assessment. St. Louis v. Coons, 87 Mo., 44; St. Louis ». Armstrong, 38 id., 29. 1In Jowa statutes are sustained which make tax deeds conclusive evidence that the property was regularly listed and assessed, and that it was regularly advertised and sold. Allen ». Armstrong 16 Iowa, 508; McCready ». Sexton, 29 id., 356; Rima »v. Cowan, 31 id., 125; Clark ». Thompson, 87 id., 586; Madison ». Sexton, id., 562; Smith v. Easton, id., 584; Easton o. Perry, id., 681. The original owner may still contest the liability of the land to any tax; and it is said in general terms by the court that on all jurisdictional questions the deed cannot be made conclusive. See Martin »v. Cole, 38 Iowa, 141. It ig manifest, however, that this word jurdsdictional is not employed in the same sense here as it often is in tax cases; asense that makes each necessary step a jurisdictional requisite to the next; for in Iowa some of the most important steps in the proceedings are held to be conclusively established by the deed. On the question what shall be sufficient to rebut the prima facte case made for the tax purchaser by his decd, and cast upon him the onus of showing regular proceedings, the following cases are instructive: Bidleman ». Brooks, 28 Cal., 72; Rayburn ». Kuhl, 10 Iowa, 92; Lacey v. Davis, 4 Mich. 140; Wright ». Dunham, 13 id., 414; Case 0. Dean, 16 id. 12; Hall o. Kellogg, id., 139. CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES. 357 of local and special assessments, such as those for paving streets, ete, do not apply to them at all, and the purchaser under proceed- ings of that nature will be compelled to rely upon the common law rule, and prove regularity. Judicial sales for taxes. In some of the states it has been deemed advisable to provide that, before sales shall be made of lands for the satisfaction of delinquent taxes, a judicial determina- tion of the delinquency shall be had.? A judicial hearing in such a case may fairly be understood to have in view, jirst, the pro- tection of the parties taxed, by giving them the opportunity to inspect the proceedings and make their objections before the final steps are taken which might conclude their rights forever; and, second, the greater security of purchasers at the sales, which may reasonably be supposed to follow a judicial determination that the proceedings are such as, under the law, will justify a sale being made. It has not been deemed advisable, in a work so general in its plan as the present, to enter at large into an exam- ination of the proceedings for which provision is made under statutes of different states. The same general principles apply to them all. In some cases — usually cases of street or other special assessments — the judicial proceedings begin when the assessors have completed their work, and the assessment is ex- amined and confirmed before process for collection is issued; or, if the assessment is found to be defective, or is believed to be un- just, it is set aside at that stage, and the case sent back to the assessors fur new action; or the proceedings are simply quashed, leaving the authorities to begin anew if they shall think it advis- able to do so.2 The local statutes differ so much in the authority 1S8harp »v. Spier, 4 Hill, 76; Bucknall ». Story, 36 Cal., 67; Kelly v. Medlin, 26 Tex., 48; Stierlin v. Daley, 37 Mo., 483; Glass 0. White, 5 Sneed, 475. °The present constitution of Illinois requires the legislature to provide, in all cases where it is necessary to sell real estate for the nonpayment of taxes or assessments, for state, county or municipal purposes, that a return shall be made to some general officer of the county having authority to receive state and county taxes; and such officer alone, upon the order or judgment of some court of record, is to have the power to sell. Hills v. Chicago, 60 Il., 86; Otis ». Chicago, 62 id., 299; Webster o. Chicago, 62 id., 302. 3 The following are cases of confirmation of special assessments under New York statutes: Matter of Harman Street, 16 Johns., 231; Matter of Dover Street, 1 Cow., 74; Matter of Fourth Avenue, 3 Wend., 452; Matter of Twenty: 308 LAW OF TAXATION. [cH. XV. they confer upon the courts, that the decisions made in one state are commonly of little service as affording a guide to the action of courts in other states. Under some statutes the action of the ussessing boards is allowed to be reviewed on the facts as well as on the law; under others, only questions of the regularity and legality of the proceedings are submitted to the court. More generally the court takes up the case at the point were the col- lector has demonstrated his inability to collect the tax from resi- dents by distress and sale of goods and chattels, and when the tax upon nonresident or unseated lands has remained unpaid, for the period allowed by law for making voluntary payment, before compulsory proceedings are suffered to be resorted to. Iu any judicial proceeding the court which assumes to act must have that authority of law for the purpose which is called jurisdic tion. This consists in first, authority over the subject matter, and second, authority over the parties concerned. The first comes from the statutory law, which designates the particular proceed. ing as one of which the court may take cognizance when the par- ties are properly before it; the second comes from the proper in- stitution of proceedings, and the service of process upon the par- ties concerned, or something which is equivalent to such service. Concerning jurisdiction of the subject matter, it is only necessary to observe that 1t must come wholly from the coustitution or stat- utes of the state; the common law giving to the courts no author- ity in such cases. Moreover that which is conferred is a special and limited jurisdiction, The importance of this fact appears in that familiar principle that nothing is taken by intendment in fay- Sixth Street, 12 id., 203; Matter of Furman Street, 17 id., 649; Matter of Liv- ingston Street, 18 id., 556; Matter of De Graw Street, 18 id., 568; Matter of Pearl Street, 19 id., 651; Matter of John and Cherry Streets, 19 id., 659; Mat- ter of William and Anthony Streets, 19 id., 678; Matter of South Seventh Street, 48 Barb.. 12; Matter of Bushwick Avenue, 48 id.,9; Matter of Central Park, 51 id., 277, 303; In re Sharp, 56 N. Y., 257; In re Van Antwerp, 56 id., 261; Striker v. Kelley, 7 Hill, 9; 8. C., 2 Denio, 323; Embury ». Connor, 3 N. Y., 511, 528; Matter of Canal and Walker Streets, 12 id., 406; King o Mayor, ete., of New York., 36 id., 182; Matter of Broadway, 49 id., 150. That the court in passing upon the assessment cannot review political action, such as the determination of the necessity or propriety of opening the street, or the proper limits of an assessment district, see Matter of Albany Street, 11 Wend., 149; Matter of William and Anthony Streets, 19 id., 676; Matter of John and Cherry Streets, 19 id., 659; Matter of Livingston Street, 18 id., 556. CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES. 859 or of the action of a court of special and limited jurisdiction, but it must appear, by the recitals of the record itself, that the facts existed which authorized the court to act, and that in acting the court has kept within the limits of its lawful authority. And this principle is applicable to the case of a court of general juris- diction, which in the particular case is exercising a special and lim- ited authority, as well as to the case of special courts created for such special and limited authority only. Taking up the case after a failure to make collection is sup- posed to have occurred, the first step commonly required to be taken is, the making by the collector or some proper officer, of a report to the court showing that the supposed delinquency actu- ally exists. This being the document that calls into activity an authority of the court before latent, it must conform to the law in every substantial requirement, or it will fail entirely to have any efficiency for the purpose.” The next step will perhaps be, the giving of notice which shall stand in the place of the process which in ordinary cases brings the parties before the court. Proceedings of this nature are not usually proceedings against !McClung ». Ross, 5 Wheat., 116; Thatcher v. Powell, 6 id. 119; Francis’ Lessee ». Washburn, 5 Hayw., 294; Tift o. Griffin, 5 Geo., 185; Dakin v. Hud- son, 6 Cow., 221; Deming ». Corwin, 11 Wend., 647; Sheldon v. Wright, 5 N. Y., 497; Bridge v. Ford, 4’ Mass., 641; Smith v. Rice, 11 id., 511; Barrett v. Crane, 16 Vt., 246; Jennings ». Stafford, 1 Ived., 404; Harshaw ». Taylor, 3 Jones (N. C.), 513; Perrine v. Farr, 22 N.J., 356; Platt o. Stewart, 10 Mich., 260. Proceedings in these cases are governed by the same principles which govern other judicial sales. Jones v. Gillis, 45 Cal., 541; Hitel o. Foote, 39 Cal., 439. Certain lands were sold for taxes. In all the proceedings, includ- ing the order of sale, the lands were described as in A. county. In point of fact two-thirds thereof were in B. county. Held, that as to these at least the sale was void. Williams v. Harris, 4 Sneed, 332. The confirmation of an as- sessment by the court fixes the character of the property as resident or nonres- ident, and if a resident becomes nonresident afterwards, the collector will still proceed as against a resident. Gossett v. Kent, 19 Ark., 601. 3See Marsh v. Chestnut, 14 Ill, 223; Charles v. Waugh, 35 id., 315; Morrill v. Swartz, 39 id., 108; Fox »v. Turtle, 55 id., 877; People v. Olin, Sup. Ct. TIL, (1875); '7 Chicago Legal News, 823. The collector's report is only prima facie evidence of delinquency, and is subject to be disproved. Andrews v. Rumsey, Sup. Ct. Ill. (1875), 7 Chicago Legal News, 822. Sce Denham ». Peuple, 67 Ii. 414. — ~ 860 LAW OF TAXATION. [cH. XV. parties,! nor, in the case of lands or interests in lands belonging to persons unknown, can they be. They are proceedings which have regard to the land itself rather than to the owners of the land, and if the owners are named in the proceedings, and personal no- tice is provided for, it-is rather from tenderness to their interests, and in order to make sure that the opportunity for a hearing shall not be lost to them, than from any necessity that the case shal] assume that form. As in all other cases of proceedings in rem. if the law makes provision for publication of notice ina form and manner reasonably calculated to bring the proceedings to the knowledge of the parties who exercise ordinary diligence in look- ing after their interests in the lands, it is all that can be required. We refer to a few cases as illustrative of the general prin- ciples on which the judicial action must be supported. Ina lead- ing case in the federal supreme court, it appeared that the statute under which the proceeding was had, required the sheriff, in the event of nonpayment of taxes by a specified time, to levy the same by distress and sale of the goods and chattels of the person in default. Failing thus to collect, he was to report the failure to the county court, whose duty it then was to direct its clerk to make out a certificate of the lands liable for the taxes, together with the amount of the taxes and charges due thereon, and to publish the same, and if the taxes and charges were not then paid within thirty days, judgrnent was to be entered for the amount due, and execution to issue upon which the land might be sold and conveyed. The sheriff made no such report as the statute provided for, and for want of this it was held thatthe court never obtained jurisdiction to proceed in the case.” Moreover the clerk never made publication of the list, and this failure would have 1 Parks v. Miller, 48 I11., 360; Schaeffer v. People, 60 id., 179. Where asale is to be confirmed by a court, no one is to be heard to oppose it who is not ad- versely interested. One describing himself simply as “tenant in possession ” shows no right to be heard. Black ». Percifield, 1 Ark., 472. 2? Thatcher v. Powell, 6 Wheat., 119, following with approval Francis’ Les- see v. Washbnrn, 5 Hayw., 294. To the same effect is McClung ». Ross, 5 Whceat., 116. And see Thacher ex parte, 3 Sneed, 344; Spellman v. Curtenius, 12 Ill., 409; Morrill o. Swartz, 39 id., 108; Fox o. Turtle, 55 id., 877; Fortman o. Ruggles, 68id., 207; Scheffer v. People, 60 id., 79; Mayo v. Ah Loy, 32 Cal., 477. CH. XV.] THE SALE OF LANDS FOR UNPAID TAXES. 361 been fatal to the proceedings if the proper report had been made.! In other cases the following errors and imperfections have been held to render the judicial proceedings void: Proceeding to judg- ment before the time limited for voluntary payment of the taxes had expired ;* rendering the judgment in a proceeding not taken against “all owners and claimants,” and by service on the land, as the statute required ;* rendering judgment upon a collector's report which failed to show, as the statute required, whether the delinquent taxes were state taxes or county taxes ;* applying for and obtaining judgment ata different term from that at which the statute required the application to be made.’ And a judg- ment is void which is given in figures merely, with neither words nor signs to indicate that money is intended, or if it is, what de- nomination of money the figures stand for.® The defects which were held fatal in the cases referred to, it will be seen, were with one exception in which the judgment was meaningless, all defects which went to the power of the court to act at all. The proceeding to judgment and sale is an ulterior proceeding which, under the law, must have for its antecedents the proper showing that an attempt to collect has proved ineffec- tual,* and that the case has been brought before the court by proper notice and at a proper time. But when those factsap- 1Thatcher ». Powell, 6 Wheat., 119. See also Spellman v. Curtenius, 12 Ill., 409; Charles v. Waugh, 35 id., 315; McKee ». Champaign County, 53 id., 477; Fortman +. Ruggles, 58 id., 207; Abbott ». Lindenbower, 42 Mo., 162; McGahen ». Case, 6 Iowa, 381. 2 Williams v. Gleason, 5 Iowa, 284. For the same principle, see Pickett v. Hartsock, 15 I11., 279. 3 Mayo ». Ah Loy, 32 Cal., 477. +Morrill o. Swartz, 39 I11., 108. See also Pickett ». Hartsock, 15 id., 279. 5 Brown v. Hogle, 30 Ill., 119. 6 Lawrence »v. Fast, 20 Ill., 888; Lane v» Bommelmann, 21 id., 148; Eppin- ger v. Kirby, 23 id., 521; Dukes v. Rowley, 24 id., 210; Bailey v. Doolittle, 24 id., 577; Woods v. Freeman, 1 Wall., 398. TIt can be no objection to a judgment against the land for taxes, that the collector did not make the tax out of the personalty, when the collec- tor did distrain the personalty, and the objector replevied the same out of the collector’s hands. Deerham ». People, 67 IIl.,414. It is no objection to an application for judgment against lands that the valuation is excessive. Spen- cer v. People, Sup. Ct. Il]. (1874), 6 Chicago Legal News, 215. 362 LAW OF TAXATION. [CH. XV. pear by the record of the court, and the judgment has been ren- dered, all questions of regularity in the prior proceedings are fore- closed..1 And not only that, but irregular action of the court it- self will not render its judgment invalid, though it might author- ize a reversal in an appellate court if a review is allowed by statute. It is a principle of general application, that while a judg- ment which has been rendered without competent jurisdiction may be treated as a mere nullity everywhere, yet that for mere irregularities it can be assailed only in a direct proceeding for that purpose; that is to say, by motion or petition in the same case, or by some proceeding in the nature of a review in error. In the proceedings subsequent to judgment the rules which govern ordinary judicial sales are applicable The deed given by the officer who sells by virtue of such a judgment should show, by its recitals, an authority presumptively sufficient to authorize it, and indeed this is usually required by the statute, which prescribes a form reciting the judgment and sale* The deed cannot be evidence of the regularity of the proceedings un- less made so by statute.® 1 See Mayo v. Foley, 40 Cal., 281; Reeve ». Kennedy, 48 id., 643; Jones ». Gillis, 45 id., 541. ? Chestnut. Marsh, 12 IIl., 173, isa leading case in tax matters illustrative of this principle. See also Atkins ». Hinman, 2 Gilm., 437; Merritt ». Thomp- son, 14 id., 716; Wilkins’ Lessee ». Huse, 9 Ohio, 154; Eitel v. Foote, 39 Cal., 439; Ea parte Kellogg, 6 Vt., 509; Edgarton v. Hart, 8 id., 207; Wall. Trum- bull, 16 Mich., 228; Daily v. Newman, 14 La. An., 580; Cadmus »v. Jackson, 52 Penn. St., 295; Wallace v. Brown, 22 Ark., 118; Carter ». Walker, 2 Ohio (N. S.),339. As to the recitals necessary in such cases see Atkins v. Hinman, 2 Gilm., 437; Young ». Thompson, 14 Ill, 380; Dukes ». Rowley, 24 id., 210; Bailey v. Doolittle, 24 id., 577; Dentler vo. State, 4 Blackf., 258; Williams v. State, 6 id,86. In Cadmus ». Jackson, 52 Penn. St., 295; it was held that a tax sale under a judgment could not be defeated by showing that the tax was paid before judgment. This showing is sometimes permitted under statutes. Sce Curry ». Hinman, 11 Ill., 420; Conway o. Cable, 37 id., 82. 3 Jones v. Gillis, 15 Cal., 541. 4 As to the necessary recitals in the deeds, see McDermott o. Scully, 27 Ark., 226; Brown v. Hogle, 30 Ill., 119; Wetherbee 2. Dunn, 82 Cal., 106. 5 See Elston v. Kennicott, 46 Ill., 187; Little » Herndon, 10 Wall., 26. In California where lands are assessed as an entirety to several, a part of whom pay portions of the tax, the court in rendering judgment should ascertain what interests are delinquent, and exonerate the rest. People v. Shimming 42 Cal., 121. ° CH. XVI] REDEMPTION OF LANDS FROM TAX SALES. 863 CHAPTER XVI. REDEMPTION OF LANDS FROM TAX SALES. It is not the policy of the luw that any man should forfeit his estate because from inability, or even from negligence, he has failed to meet his engagements or to perform his duties by some exact day which has been prescribed by statute. On the contrary, it is for the welfare of every community, that the law should favor the citizen in all reasonable measures for the preservation of his estate, against losses which might result from his misfor- tunes or his faults, extending to him all the liberality that is con- sistent with justice to others and a proper regard to the interest of the state. The principle is recognized in the liberality shown to those desirous to redeem from the forfeiture of mortgages, and in the provisions made for redemption from judicial sales. It is also recognized in the laws providing for redemption from tax sales. The statutes on this subject have little uniformity, but certain general rules govern the right to redeem under them all; and it mav be sufficient for our purposes to refer to these. 1. The statutes which give the right are to be regarded favora- bly and construed with liberality. Abundant reason for this is assigned in the cases which recognize the rule. It has been justly remarked that the right of the government to sell lands for taxes, as it is accustomed to do, can only be maintained on “ the abso- lute sovereignty of the state in the exercise of its taxing power. But it is a severe exercise of power. T'o divest ownership, without personal notice and without direct compensation, is the instance in which a constitutional government approaches most near to an unrestrained tyranny. Whatever tends to modify this right is favorable to the citizen, and ought to be liberally construed, on the principle that remedial statutes are to be beneficially ex- pounded. Redemption is the last chance of the citizen to recover his right of property.” ? 1Woodward, J., in Gault's Appeal, 83 Penn. St., 94, 97. See also Dubois ». Hopburn, 10 Pet., 1; Corbett 2, Nutt, 18 Grat., 674, and 10 Wall., 464; Patter 364 LAW OF TAXATION. [cH. XVI. 2. But while the statutes are to be favorably regarded, it is at the same time to be borne in mind that the right to redeem comes from the statute exclusively, and is to be asserted only in the cases and under the circumstances which are there prescribed. The courts can grant no extension of the statutory time; they can make no exceptions from general provisions of the statutes to meet the circumstances of hard cases; and if the statutes fail to provide for the cases of disability, like those of infancy, coverture or absence from the country, the courts are without authority to do so! The statutes of some states make special provisions for the cases of infants, and sometimes for dther classes, permitting redemption by them after the time allowed to owners generally has expired; but such statutes are far from general.? And where son v. Brindle, 9 Watts, 98; Masterson v. Beasley, 3 Ohio, 301; Jones », Col- lins, 16 Wis., 594; Winchester 2. Cain, 1 Rob., La., 421; Rice v. Nelson, 27 Iowa, 148; Schenck ». Peay, 1 Dillon, 267. Where the deed was required to lie twelve months in the town clerk’s office, during which the party might re- deem, it was held that it should be deposited with all convenient speed. Four years after the sale was too late. Ives v. Lyon, 7 Conn., 504. Statutes have sometimes provided for judicial proceedings to foreclose or cut off the right to redeem, not only in cases where lands were to be forfeited for delin- quent txxes, but also in case of sales. In the latter case the proceedings will be taken by the purchaser, who will be held to great strictness in complying with the statute. See Dentler v. State, 4 Blackf., 258; Gaylord »o. Scarff, 6 Towa, 179; Abell v. Cross, 17 id.. 171. Such proceedings are not applicable to sales for municipal taxes unless expressly made so. Grimmer v. Sumner, 21 Wis., 179. 1McCormack »v. Russell, 25 Penn. St., 185; Smith v. Macon, 20 Ark., 17; Heard v. Walton, 39 Miss., 388. Redemption cannot be had in equity. Mitch- ell v. Green, 10 Met., 101. Except as it may be permitted by statute, and then it must be under such conditions as the statute may attach. Craig v. Flana. gin, 21 Ark., 319. Where the owner neglected to pay taxes or to redeem his lands after sale, under a belief that the taxes had been paid, the mistake does not entitle him to relief against the consequences of the omission. Playter v. Cochran, 37 Iowa, 258. A purchaser of Jands which had been sold for taxes prior to his purchase is not entitled to redeem because of having, after the purchase, inquired of the treasurer if there were unpaid taxes, and been told there were not; al the same time making no irquiry for tax sales. Moore 2. Hamlin, 38 Iowa, 482. Compare Van Benthuysen v. Sawyer, 36 N. Y., 150. The pendency of the civil war, and the fact that the owner resided in a state in rebellion, cannot enlarge his statutory right to redeem. Finley o. Brown, 22 Iowa, 638. 2 An infant who has aright to redeem may sell it with the land. Stout v, Merrill, 35 Iowa, 47. As to redemption by infants and married women under CH. XVI.] REDEMPTION OF LANDS FROM TAX SALES. 865 the statute makes no provision for the redemption of an undivided interest, the party owning such an interest can only redeem by paying the whole redemption money.! 3. Whatever the statute may make provision for, subsequent to the sale, in order to the protection of the interest of the parties having the right to redeem, must be strictly performed. The reasons which require this are the same that render imperative a strict compliance with all those provisions which are to be ob- served in the interest of the tax payer before the sale is made. Perhaps the most usual requirement is, the publication of a no- tice to the tax payer, with sometimes a personal service upon the owner in case he is known, and isa resident. All provisions of this nature must be strictly complied with. Nothing can be substituted for it by the officers;* the right to it cannot be waived by one who chances to be in possession of the land but who has no interest in it,3 and the owner may rely on his right to it, and statutes making exceptions in their favor, see Jones o. Collins, 16 Wis., 594; Lynch v. Brudie, 63 Penn. St., 206. 1 Quinn ov. Kenney, 47 Cal., 147; Peopleo. McEwen, 23 id., 54; Curl 0. Watson, 25 Iowa, 85. Where the statute permits redemption of an undivided interest, the right may be enforced by mandamus. People v. Treasurer of Detroit, 8 Mich., 14. That rents and profits received by the tax purchaser cannot be applied by way of equitable redemption, see Spengin »v. Forry, 37 Iowa, 242. As to the right of one tenant in common who redeems for all to retain the Jand until the others repay their share, sce Watkins ». Eaton, 80 Me., 529. 2 Where a leasehold interest was sold and was to be conveyed at the ex- piration of two years from the sale, but the statute required the corporation, at least six months before the expiration of two years from the sale, to cause an advertisement to be published at least twice in each week, for six weeks suc- cessively, thatamnless the lands were redeemed by a certain day they would be conveyed, held, that this was imperative, and that the six weeks must be com- pleted six months before the expiration of two years. Doughty ». Hope, 8 Denio, 594. See Jackson v. Estey, 7 Wend., 148; Comstock v. Beardsley, 15 id., 8348; Westbrook . Willey, 47 N. Y.,457; Jenks o. Wright, 61 Penn. St. 410; Wilson 0. McKenna, 52 Ill., 48. And compare Wright o. Sperry, 21 Wis., 381. Iflands are improperly grouped and sold, this does not affect the right to redeem in parcels. Penn v. Clemans, 19 Iowa, 372. 380 held under the New York statute. The statute required notice to be given to the party in possession if any; but it was held that an occupant who had no interest in it could not waive the right to the notice. Jackson v. Estey, 7 Wend., 148. As to who is to be deemed in possession, see Comstock 2. Beards- ley, 15 Wend., 348; Bush v. Davison, 16 id., 550. The occupation intended by the statute is that at the time notice is given. Hand ». Ballou, 12 N. Y., 541. 866 LAW OF TAXATION. [CH. XVI. wait until he receives it before taking proceedings to redeem." Notice, when to be given by an officer, is an official act, and should be put in writing; but whether in writing or not, must be distinct and full, and the evidence of giving it should be pre- served in the proper office. 4. As to the persons who may redeem, something may depend upon the phraseology of the statute. The general rule is, that any one may redeem who has in the land an interest which would be affected by the tax conveyance.® A statute giving the right to redeem to the “owner,” will be construed to embrace the case of the original owner, notwithstanding there is an outstanding tax title‘ It may also embrace any one who hasa substantial interest in the premises; even a wife having a homestead right in her hus- band’s lands,’ or a lien creditor.6 A purchaser at sheriff’s sale of the right of one in possession, may redeem, though he shows no title in the occupant.?7 And so may a husband who claims in right of his wife ;* or a dowress;® or the assignee of a mortgage ; ‘Arthurs ov. Smathers, 38 Penn. St., 40; Doughty v. Hope, 3 Denio, 594; Dentler v. State, 4 Blackf., 258. In Illinois it has been decided that where by law notice to redeem was required to be served on the person who was as- sessed, and the notice was not given, the tax deed was void even though the person assessed had no interest in the land, and though the purchaser had pub- lished notice in a newspaper three months before the time to redeem had ex- pired, describing the land, stating his purchase, and also when the redemption would expire. Barnard v. Hoyt, 63 Ill., 341. In Missouri the statute required the certificate of purchase to be recorded, and gave the owner two years af- ter the sale in which to refleem. It was held that recording the certificate was essential. Morton o. Keeds, 9 Mo., 878. ? Broughton v. Journeay, 51 Penn. St., 31. 8 Dubois v. Hepburn, 10 Pet., 1; Schenck o. Peay, 1 Dillon, 261; McBride v. Hoey, 2 Watts, 486. ‘Lancaster v. County Auditor, 2 Dillon, 478. 5 Adams »v. Beale, 19 Iowa, 61. 6 Schenck ». Peay, 1 Dillon, 269. And see as lessees, etc., Byington ». Rider, 9 Iowa, 566. 7Shearer v. Woodburn, 10 Penn. St., 511. 8’ Dubois v. Hepburn, 10 Pet. 1. ®Rice v. Nelson, 27 Iowa, 148. 1¢ Faxon v. Wallace, 101 Mass., 444. The statute gave the right'to the “ mort- nar ee,” and it was held the assignee was included. The redemption is for CH. XVI] REDEMPTION OF LANDS FROM TAX SALES. 867 or a party claiming the land by executory contract.!| And one interested in lands sold zn solido may redeem for all.? Probably none of the statutes are so restricted in the terms in which they grant the right to redeem as to fail in protecting all interests like those which have been mentioned, and all others of a beneficial Neoeneter, v «\ stranger to the title cannot defeat a tax purchase by re- demption. The purchaser has acquired a title which is subject only to the right of those interested to redeem; and no payment of the amount by a stranger, and no acceptance of it by any official from a stranger, can affect this right.* Probably tht ac- ceptance of the redemption money by the purchaser himself would preclude his afterwards claiming rights under his purchase; but nothing short of his own recognition of the unauthorized act of one who, if he had no interest, would be a mere intermeddler, could conclude him in such a case.4 6. Although redemption is a statutory right, yet a party at- tempting in good faith to make it may be relieved against the mistakes or frauds of the officer or of the purchaser. If he has attempted to redeem, and done all he was required to do by those entitled to receive the money, the sale is discharged even though, in consequence of the mistake of the officer, he has paid less than the proper amount.® But where one claims to have discharged the benefit of the owner as well as the holder of the mortgage. Duncan »v. Smith, 31 N. J., 325. 1 One who has bought the land by executory contract may compel the pur- chaser for taxes to assign to him on receipt of the redemption money. Rogers ». Rutter, 11 Gray, 410. 2 Loomis v. Pingree, 42 Me., 299. It appears to be the rule in Iowa that one must redeem all he has a right fo redeem, and cannot compel the purchaser to accept less. Curl 9. Watson, 25 Iowa, 185; Jacobs 2. Porter, 34 id., 342, 845. See People v. McEwen, 23 Cal., 54. 3See Eaton v. North, 25 Wis., 514; Cousins v. Allen, 28 id., 232. 4Byington v. Bookwalter, 7 Iowa, 512; Penn v. Clemens, 19 id., 872. The officer to whom redemption is made need have no proof that the person offer- ing to make it is authorized to do so, unless the statute requires this. Chapin v. Curtenius, 15 Ill, 427. 5 Thus, in Buda, ». Tompkins, 47 Penn, 8t., 859, it was decided that the re- demption was effectual, though by mistake of the county treasurer all of the taxes were not included which should have been. And see Price v. Mott, 52 Penn. St., 315; Dietrick v. Mason, 57 id, 40; Noble o. Bullis, 23 Iowa, 559, 368 LAW OF TAXATION. [cH. XVI. lands from a tax sale, by the payment of all taxes demanded of him, which was less than the whole, it must appear that no re- sponsibility for the error rests upon him. If when he applied to the treasurer to redeem, that officer was left to understand that only a certain sale was inquired for, and received the money upon that alone, this will not discharge any other sale." 7. The purchaser may waive strict compliance with the statutes. This he will do if he receives payment after the day.” But such a transaction is to be regarded purely as aredemption, and not as a purchase ;* as would be also an assignment made by the pur- chaser to the original owner, on a claim being made by the latter of aright to redeem. 8. Redemption gives no new title; it simply relieves the land from the sale which had been made. And this is true whether redemption is made before the statutory time had expired, or by consent of the purchaser afterwards.® If the purchaser had any other title or interest in the land besides that redeemed from, it remains entirely unaffected; his acceptance of the redemption money cannot estop him from setting it up and relying upon it.® 9. The purchaser has no title to the land until the time for re- demption has expired. He has consequently no constructive pos- 1 Lamb »v. Irwin, 69 Penn. 8t., 436. If redemption is prevented by the officer refusing to give a statement and receive the amount, the title is not cut off. Van Benthuyscen v. Sawyer, 36 N. Y., 150. 2 Coxe v. Wolcott, 27 Penn. St., 154; Philadelphia ». Miller, 40 id., 440. Coxe v. Wolcott, 27 Penn. St. 154. In Rogers v. Johnson, 70 id., 224,8 written agreement given by the purchaser to the owner, agreeing to convey on being paid the amount of the bid with twenty-five per cent. additional, wag regarded as a good redemption. So is a tender to the purchaser sufficient, though, under the law redemption is to be made to the treasurer. Broughton o.Journeay, 51 Penn. St., 31. Andsee Price v. Mott, 52 id., 315. In Mas. sachusetts one entitled to redeem should make tender to the purchaser, not- withstanding he has while disseized made conveyance to another. Faxon a Wallace, 98 Mass., 44. See Same v. Same, 101 id. 444. A tender, accepted or not, isequivalent to redemption. Sperry v. Gibson, 3 W. Va., 522; Brooks o. Hardwick, 5 La. An., 675. 4 Coxe ». Sartell, 21 Penn. St., 480. See Steiner v. Coxe, 4 id., 18. 5 Coxe v. Wolcott, 27 Penn. St., 154. For the general rule, see Phillips . Improvement Co., 25 id., 56; Cuttle 0. Brockway, 32 id., 45; Jenks ». Wright, 61 id., 410; Gray v. Coan, 30 Iowa, 536. 6 Cooper v. Bushley, 72 Penn. St., 252. CH. XVI} REDEMPTION OF LANDS FROM TAX SALES. 869 session of the premises, and no more right to go upon and make use of them than any stranger to the title would have. His entry upon the premises would be a trespass upon the possession, ac- tual or constructive, of the owner, who might recover against him for any injury committed.t 10. Neither the purchaser nor the officer can add conditions to the right to redeem. A direct attempt to do this would so man- ifestly be an attempt to legislate to the prejudice of the owner, that nothing could be said in justification of it. But peculiar cases, which would amount to this in legal effect, sometimes re- quire to be tested by the general principle. Thus, where the land of one person was irregularly sold with that of others, but the infirmity in the sale was afterwards cured by a healing act, it was held, that the owner could not be required, as a condition to redemption, to pay any more than the proportion of the bid that was fairly chargeable to his land; this being all that he could have been charged with had the sale been regular.* So if the purchaser has paid taxes, subsequently assessed upon the land, he cannot demand these as a condition to redemption, unless this is the provision of the statute.® And, if a resident’s lands have been assessed and sold as nonresident, their character has been fixed for all the purposes of that proceeding, and the owner can- not be required to redeem on any different terms from a nonresi- dent.‘ 11. In the matter of tax sales, it is important to understand what authority the legislature retains over them, especially in view of the very frequent and radical changes which are made in the law, and which in terms if notin intent apply to inchoate transactions previously had, as well as to those which are to take place under the new law. The question, for instance, whether a statute extending the right to redeem can be applied to pre- 1 Shalemiller ». McCarty, 55 Penn. St., 186. See Gault’s Appeal, 33 Penn. St., 94; Lightner 0. Mooney, 10 Watts, 407. This may possibly be otherwise under some statutes, but there can be no question that the general rule is stated in the text. ° Dietrich v. Mason, 57 Penn. St., 40. As tothe right to redeem from the counties in Kansas, see Farr v. Haughey, 5 Kan., 625. 3 Stephens v. Holmes, 26 Ark., 48. 4 Garabaldi v. Jenkins, 27 Ark., 453. 24 370 LAW OF TAXATION. (cH. XVI. vious sales, is one constantly liable to arise, and which, in fact, has arisen in several cases. If the time to redeem has already expired before the passage of the statute, it is manifest the statute can have no effect upon the sale. The title bas now become absolute, and the legislature can no more create rights in the land in favor of the former owner than in favor of any other person. But if the time has not ex- pired, and redemption is still open to the owners, the want of power is not so entirely beyond dispute. In one case it has been decided that the time for redemption might lawfully be extended from one year to two, after the sale had taken place. The decision is reasoned on the liberal con- struction which should be put upon redemption laws ; and the con- clusion was just, if no other considerations need be taken into the account.! Other cases have held the contrary, and, as we believe, on reasons that are conclusive. They plant themselves upon the principle that the obligation of contracts is inviolable. Now the purchase at a tax sale is clearly a contract. It is made under the law as it then exists, and upon the terms prescribed by the law. No subsequent statute can import new terms into the contract, or add to those before expressed. If it could be changed in one particular, it could be in all; if subject to legislative control at all, it is wholly at its mercy. The same rule ought in morals to apply to a statute shortening the time to redeem; as it is equally unjust to legislate against the owner of the land in such circum- stances as in his favor. But with him there is no contract when the sale is made, and perhaps the remedy by redemption which the statute gives him, like remedies in general, is subject to legis- lative discretion.* 1Gault’s Appeal, 33 Penn. St., 94. * Robinson v. Howe, 13 Wis., 841; Dikeman ». Dikeman, 11 Paige, 484; Goenen v. Schroeder, 8 Minn., 387. And see Cargill v. Power, 1 Mich., 369. ‘It was so intimated in Robinson v. Howe, 13 Wis., 341, and Smith v. Pack. ard, 12 id., 871. The right to shorten the time to redeem from a mortgage sale was affirmed in Butler». Palmer, 1 Hill, 824, but denied in Cargill o. Power, 1 Mich., 869, on the ground that the right pertained to the contract it- self which the parttes had made; that is to say, to the mortgage. And see State v. Commissioners of School, etc., Lands, 4 Wis., 414. CH. XVII] PROCEEDINGS TO RECOVER LANDS SOLD. 371 CHAPTER XVII. PROCEEDINGS AT LAW TO RECOVER LANDS SOLD FOR TAXES. Where lands have been sold and conveyed in satisfaction of delinquent taxes, the purchaser, if he finds the land occupied, may bring ejectment in the common law courts to obtain posses- sion. If, on the other hand, he findsthe land unoccupied and takes possession without suit, the original owner may have the like remedy against him. It has in some cases been thought proper, with a view to a speedy settlement of all questions concerning the validity of tax titles, to establish, by statute, some special rules regarding the proceedings to contest them. ‘These rules are to be classed under two heads: Those which make it a condition to any recovery by the original owner of lands sold for taxes, that he should do equity in the premises; and those which require him to bring his suit in a very short time, specially limited for the purpose. 1. Under the first head may be ranged those provisions which reqtlire, as a condition to maintaining any suit, that the owner of the title adverse to the tax title shall pay the taxes for which the land was sold, and those which, in the event of his establishing his title to the land, require him to pay for any betterments that have been made by the tax purchaser or his assignees in reliance upon the purchase. The requirement, that the party recovering in ejectment, shall pay the fair value of betterments which an adverse claimant has made in good faith upon the land, and which the party making them must now lose, is one that, under ordinary circumstances, is eminently just and proper. No serious question of the right of the legislature to make such requirements can well arise, and if it could, it must now be considered as conclusively settled by the decisions in its favor There is more difficulty with the requirement of payment of taxes. 1 Brown ». Storm, 4 Vt., 37; Whitney v..Richardson, 31 id., 300, 306; Arm- strong v. Jackson, 1 Blackf., 375; Fowler v. Halbert, 4 Bibb, 52, 54; Brackett 372 LAW OF TAXATION. [CH. XVIL It has been decided in one state that an act which provided that “no person shall be permitted to institute any proceedings to set aside any assessment or special tax, hereafter levied or assessed upon any lot or tract of land, or to set aside any deed executed in consequence of nonpayment of such taxes, and the sale of the premises therefor, unless such person shall first pay or tender to the proper party, or deposit for bis use with the treas- v. Norcross, 1 Greenl., 89,92; Withington v. Corey, 2 N. H., 115; Hunt's Lessee ». McMahan, 5 Ohio, 133; Longworth »v. Worthington, 6 id., 9, 10; Bacon 2. Callender, 6 Mass., 303; Jones v. Carter, 12 id., 314; Scott o. Mather, 14 Texas, 235; Saunders v. Wilson, 19 id., 194; Childs v. Shower, 18 Iowa, 261; Pacquette ». Pickness, 19 Wis., 219; Coney v. Owen, 6 Watts, 485; Steele v. Spinance, 22 Penn. St., 256; Lynch v. Brudie, 63 id., 206; Dothage ». Stuart, 35 Mo., 251; Fenwick 0. Gill, 38 id., 510; Craig v. Flanagin, 21 Ark., 319; Pope ». Macon, 23 id., 644; Marlow v. Adams, 24 id., 109; King o. Harrington, 18 Mich., 213; Howard ». Zeyer, 18 La. An., 407; Love ». Shartzer, 31 Cal., 487; Stebbins o Guthrie, 4 Kans., 353. Some of the statutes give the value of the improve- ments to those only who have been in possession, claiming title in good faith, In Texas it has been held, that the tax purchaser is not a possessor in good faith, and, consequently, not entitled to compensation for improvements, if his deed was void for want of authority in the officer to sell, and by proper diligence he might have known the fact. Robson v. Osborn, 13 Texas, 298, 307. In Indiana the claimant must have had at least color of title. Cain v. Hunt, 41 Ind., 466. But in Pennsylvania, and, perhaps, in most of the states, the owner, recovering his lands, may have judgment against him for im- provements, though the tax proceedings were wholly void. Gilmore v. Thomp- son, 3 Watts, 106, (where the tax had been paid before sale) ; Coney v. Owen, 6 id., 435, (where the land was exempt. from taxation); Lynch v. Brudie, 63 Penn. St., 206. But it would be otherwise if the lands were seated so that the sale would be vaid, not because of defective proceedings, but because of the absence of jurisdiction to proceed at all. See Lambertson v. Hogan, 2 Penn. St., 22, and cases cited. In Rogers »v. Johnson, 67 id., 43, 47, Agnew, J., gives the expla- nation of the difference: “The distinction between a sale absolutely void, from want of jurisdiction to sell, and one merely void because of a fatal defect in the proceedings, is palpable. Thus in McKee ». Lamberton, 2 W. &S., 107, 114, and Cramer v. Hall, 4 id., 36, where the land was seated and the treasurer had no authority to sell, it was held, that the purchaser was not entitled to be compensated for his improvements; while in Coney v. Owen, G6 Watts, 485, and Gilmore v. Thompson, 3 id., 106, where the lands were unseated and the treasurer had general jurisdiction, but the sales were void because, in the first place, of exemption from taxation, and in the second, because of a prior payment of the taxes, the purchaser was held to be entitled to his improvements. There are other cases, even where the irregularity has deprived the owner of his surplus bond, where the sales have been sustained. Thus, the sales were supported in Gibson v. Robbins, 9 Watts, 156, where the treasurer charged too much costs, and appropriated the whole bid, where CH. XVIL] PROCEEDINGS TO RECOVER LANDS SOLD. 3873 urer, the amount of all state, county and city taxes that may remain uppaid upon such lot or tract, together with the interest and charges thereon,” was void as being inconsistent with that clause in the constitution that declares that every person “ ought to ob- tain justice freely, and without purchase.”?! If this statute, were confined to the requirement of a payment or tender of legal taxes and costs for which the sale may have been made, the soundness of the conclusion might well be made a question. No one is de- nied a remedy in the courts, when he is merely required to sub- mit to a condition which, under the circumstances, is reasonable. Conditions to the assertion of a right in court are imposed in many cases, none of which are supposed to work to the detriment of justice. The requirement of security from a plaintiff in replevin or attachment is an instance, and the payment of taxes upon the legal process or upon the entry of the suit is another.” Courts of equity on general principles of right are in the frequent habit of imposing conditions where one seeks in equity to restrain a tax, only a part of which is illegal. The authority of the legislature over the whole subject of legal remedies is very ample, and it is not to be supposed that any general declaration of the right of the a surplus would have existed for which a bond should have been taken; and in Peters v. Heasley, 10 Watts, 208, and Russell v. Reed, 27 Penn. St., 166, where the commissioners of the county bid more than the taxes and costs, and the owner was thereby deprived of his security for the surplus. So also the sale was supported in Frick ». Sterrett (4 W. & 8., 269), where the treas- urer, by mistake, took the bond for less than the true surplus. To these cases may be added Bayard o. Inglis (6 W. &8., 465), and Burd ». Patterson (22 Penn. St., 219), where no bonds were given when the sale was made and deed delivered. In the former the bond was not given until nearly two years after. wards, and it was never filed.” 1See ante, p. 320, note 2. °The validity of a tax on the unsuccessful party to a lawsuit was questioned in Harrison v. Willis, 7 Heis., 35, as “the imposition of a burthen upon the right of the citizen to go into the courts to have his wrongs redressed, and his rights vindicated,” and as an infraction of that section of the bill of rights which declares that “all courts shall be open, and every man for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or de- lay.” The court sustained the law, remarking that such laws had long existed, and this clause, taken from magna charta, was not to be understocd as pro- hibiting such a tax, but to be interpreted in the light of the history of the times when adopted. 874 LAW OF TAXATION. [CH. XVII citizen to his day in court was intended to preclude the legisla- ture from exercising its authority to require him to do equity when he did come. Other cases have distinctly affirmed the right to require payment of the taxes, as a condition precedent to a recovery of the land from the tax purchaser, when it was proposed to do so on the ground of the invalidity of the tax proceedings.’ These decisions, if limited in their application to cases in which: taxes were justly and equitably a charge upon the land, and only failed to become a legal charge by reason of the negligence or mistakes of officers in the discharge of their duties under the tax: law, may fairly be said to rest upon sound grounds of broad equity,. and to be supported on the same reasons which support remedial laws in general. If the tax purchaser has, by his purchase, paid a charge which the state might fairly and justly make a legal one upon the land, and which the owner of the land ought himself to have paid to the state, there is no reason why the state should not give to the purchaser, when he loses the expected benefit of the purchase, a remedy to recover the amount of the tax from the party who ought to have paid it, This is the province of remedial laws; to give new remedies where none at all or only inadequate remedies existed before. And so favorably aresuch laws regarded that they always receive at the hands of the courts a benign and favorable construction. ‘Tharp v. Hart, 2 Sneed, 569; Glass 0. White, 5 id., 475; Craig 0. Flanagin, 21 Ark., 319; Pope v. Macon, 23 Ark., 644. Compare Wakely v. Nichols, 16 Wis., 558. In Henderson v. Staritt, 4 Sneed, 470, it was decided that the plaintiff in ejectment to recover land sold for taxes may show that any neces- sary proceeding subsequent to the judgment and order of sale, such as the ad- vertisement of the sale itself, was irregular and void, without first being required to show that the taxes had been paid anterior to such judgment and order of sale. A Constitutional provision that “appeals and writs of error shall be allowed from the final determination of county courts as may be pro- vided by law,” is not violated by a statute which, in tax cases, requires the appellant to deposit with the county treasury the amount of the judgment. Andrews v. Rumsay, Sup. Ct. Ill. (1875), 7 Chicago Legal News, 321; citing People v. Wallace, in same court, same term. A statute precluding the owner from contesting a tax sale, unless he has paid or tendered the taxes, cannot be extended by contstruction to embrace the case of lands forfeited to the state. Williamsburg v. Lord, 51 Me., 599. A decree settling the title to land in the original holder, as against a tax purchaser, does not bar an action to recover for taxes paid by the latter in good faith upon the land in controversy. Stewart v. Corbin, 88 Iowa, 571. CH. XVII] PROCEEDINGS TO RECOVER LANDS SOLD. 875 But if the tax itself were vicious; if it were laid for a private, and not a public purpose; if it were a special and arbitrary exac- tion from one person while the rest of community equally inter- ested was not taxed at all, or if for any similar reason the charge was not just and equitable as against the owner of the land or the land itself, so that the legislature could not have validated it re- trospectively by a direct enactment, it is not perceived on what grounds an authority to validate it by this indirect and circuitous method can be supported. The legislature can have no more au- thority to compel the land owner to pay a lawless exaction to a third person than it has to compel a like payment to the state directly. The one as much as the other would be robbery. If the land owner performs all his duty to the state, nothing which the tax officers can do without his consent, and in the direction of depriving him of his freehold, can raise against him any equity requiring him to do more. The rule caveat emptor applies to the purchaser. He takes all the risks of his purchase, and if he finds in any case that he has secured neither the title he bid for nor any equitable claim against the owner, the state may, if it see fit, make reparation itself, but it has no more authority to compel the owner of the land to do so than to exercise the like compulsion against any other person.’ 1 This is the substance of the decision in Hart 0. Henderson, 17 Mich., 218. How far it may be just, and therefore competent, to compel the land owner, in cases where the tax was just but the proceedings to make it a charge.on person or property void, to pay the cost of such void proceedings, is a question that will be very likely at some time to come up for determination. It is certainly dif- ficult to perceive how any equitable claim can exist against any one for the cost of void proceedings. The Illinois statute of 1839 provided that “no person shall be permitted to question the title acquired by a sheriff's deed with- out 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 aforesaid.” It has been decided that notwitstanding this statute, the par- ty defendant may contest the tax title, if the taxes due to the state have been paid, no matter by whom. Curry »v. Hinman, 11 Ill., 420. See Conway ». Ca- ble, 87 id., 82. Also that if one was in possession of the land claiming title when the sale was made, that is sufficient evidence of title. Lusk v. Harber, 8 Gilm., 158; Curry 0. Hinman, 11 Ill., 420. The following cases throw light on the construction of this statute: Hinman v. Pope, 1 Gilm., 181, 188; Bestor te. Powell, 2id., 119; Atkins ». Hinman, 2 id., 487, 453; Spellman v. Curtenius 376 LAW OF TAXATION. [CH. XVII 2. The statutes limiting a short time within which the owner of the original title shall contest the tax claim, are supposed to be enacted in pursuance of a sovereign authority in the legislature to ix a reasonable time within which a party shall be allowed to assert his rights by suit, or be debarred. The policy of such laws is unquestionable, and the power to enact them is undisputed. But like all other powers in government, this has its limits, and it is probable that some of the statutes to which we have referred, if literally construed, would be found to be unwarranted. The most common limitation of actions for the recovery of lands is twenty years after the right of action accrued. But whenever the legislative wisdom shall determine that a shorter limitation for all cases or for any class of cases would be wise, it is unouestionably competent to prescribe it. Advantage has been taken of this power in some instances, by parties interested in tax titles, and laws have been secured which, in tax cases, limit the time to five years, or to three years. But in some of these laws another peculiarity will be found besides the short period that is prescribed for contesting the tax claim. They do not on their face purport to be statutes which limit the time in which a party may bring suit against one in possession, claiming by tax title, but they fix a time after which the tax title shall not be ques- tioned. The short period of limitation it is entirely competent for the legislature to prescribe,’ but it may be questioned whether an act which merely limits a time within which a bad title may ripen into a good one is, either in spirit, purpose or effect, an act in the nature of an act of limitations. Three different classes of cases may be affected by such stat- utes: 1. Those in which the owner of the original title remains in possession after the tax sale. 2. Those in which the land is then and remains afterward unoccupied. 3. Those in which the tax purchaser enters and holds possession claiming title. In the third class of cases there can be no sufficient reason why 12 111, 409; Hope v. Sawyer, 14 id., 254; Billings v. Detten, 15 id., 218: Polk v. Hill, 15 id., 180; Chapin v. Curtenius, 15 id., 427, 482. And see ante, p. 227, et seq. 1 Thomas 2. Stickle, 32 Iowa, 71 (citing Henderson ». Oliver, 28 id., 20; El- dridge v. Kuehl, 27 id., 160); Shiek ». McElroy, 20 Penn. St., 25; Edgerton ». Bird, 6 Wis., 527, 582; Sprecker v. Wakely, 11 id., 432. CH. XVII.] PROCEEDINGS TO RECOVER LANDS SOLD. 377 the holder of the original title should not be required to bring suit in a time less than twenty years. By the adverse possession he is excluded from the enjoyment of any right he may claim, and public policy no less than justice to the tax purchaser re- quires that he should bring his suit within a reasonable time, in order that all contested questions may be put at rest while the facts are recent and presumably susceptible of proof. In the first class of cases it would be manifest and most gross injustice to make lapse of time alone extinguish the owner’s title. He is in full possession of his rights, and it is the adverse claimant and not himself who is negligent in not bringing suit. And it seems to us very clear that, under such circumstances, it is not competent to limit a period at the expiration of which the tax title shall be- come a perfect title and not open to controversy or dispute.’ In the second class of cases the proper rule is not so clear. If no provision is made by statute under which ejectment can be brought in the case of a vacant possession, it would seem that neither claimant could be considered in law negligent, so as to render his claim the proper subject of a statute of repose, until possession was taken by his adversary; but if ejectment is al- lowed in such cases, then it may possibly be within the power of the legislature to declare that the title of that one of the parties who, constructively, is to be regarded as in possession, shall be- come absolute if not questioned by suit within the time by the statute limited for that purpose. The Pennsylvania statute of 1804 declared that no action for the recovery of lands sold under the act should lie, unless brought within five years after the sale. But this the courts refused to apply literally, because, in the case of a vacant posses- sion, it would cut off the original owner without giving him the right to contest the title; there being no statute permitting eject- ment in such cases. They consequently held that the statute began to run, not from the sale, but from the time of posession taken under it.2, Subsequently, when the right to maintain eject- ment for an unoccupied tenement had been conferred by the stat- 1 Groesbeck v. Seeley, 18 Mich., 829. See Conway v. Cable, 87 IIL, 82; Case ». Dean, 16 Mich., 12; Waln v. Shearman, 8 8. & R., 857. ® Waln v. Shearman, 8 §. & R., 357; Cranmer v. Hall, 4 W. & &., 36. See also Baker v. Kelly, 11 Minn., 480. 378 LAW OF TAXATION. [cr Xvit. ute, it was held that the statute began to run in favor of the tax purchaser at the time the sale was perfected by deed, he being constructively in possession of the unoccupied premises from that time.t These decisions have perhaps given effect to the statute as near as was possible, consistent with fundamental rules of right.? The Wisconsin statute provides that “ any suit or proceeding for the recovery of land sold for taxes, except in cases where the taxes have been paid or the lands redeemed as provided by law, shall be commenced within three years from the time of recording the tax deed of sale, and not thereafter.” That this statute is valid does not seem to have been very seriously questioned.* That it ap- 1“Tt was argued that the limitation in the act of 1804 does not apply toa case where the owner is in possession. That is true, as was determined in Bigler v. Karnes, 4 W. &8., 187, and Shearer ». Woodburn, 10 Penn. St., 511. But that ig where the possession is actwal,and the owner is thus daily and hourly challenging the validity of the tax title. It is not so, however, in any other cause, and it is settled that in all other cases the limitation runs from the time of the sale, and not from the time when possession is taken by the pur- chaser. Parish v. Stevens, 38. & R., 298, the first case decided under the act of 1804, on this point, was overruled by Waln v. Shearman, 8 8. & R., 357, on the ground that an ejectment would not lie against a vacant possession. But the act of 29th March, 1824, having provided a remedy for the owner in the case of a vacant possession, this court returned to the doctrine of Parish 2, Stevens, and it is now held that the limitation runs from the time of the sale, and not of possession. Robb v. Bowen, 9 Penn. St., 71; Sheik v. McElroy, 20 id., 25; Burd v. Patterson, 22 id., 219; Stewart v. Trevor, 56 id., 385. In the last case, Justice Strong summing up the cases, says: “Since the act of 29th March, 1824, the limitation is perfect at the end of five years from the delivery of the deed to the purchaser, without regard to possession.” Agnew, J., in Rogers v. Johnson, 67 Penn. St. 48. See also to same effect, Johnston v. Jackson, 70 id., 164. *A statute providing that no action fur the recovery of land sold for taxes shall lie, “unless brought within five years after the sale thereof for taxes, as aforesaid,” will not benefit the holder of the tax title when suing as plaintiff; and if he sues after five years he must show a valid title. Bigler v. K arnes, 4 W.&S5., 187; Shearer v. Woodburn, 10 Penn. St., 511; Hole v. Rittenhouse, 19 id., 305; McReynolds ». Longenberger, 57 id., 18. It has been decided in Pennsylvania that as against a mere intruder, the tax deed, with evidence of title out of commonwealth, is sufficient. Crum 0. Burke, 25 Penn. St., 871, 881, citing Foust v. Ross,1 W.&&., 501; Foster v. McDivitt, 9 Watts, 341, 844; Dikeman v. Parrish, 6 Penn. St., 210. And see Shearer o. Woodburn, 10 Penn. St, 512; Troutman v, May, 33 id., 455; Wheeler o. Winn, 53 id., 122; Hess v. Herrington, 73 id., 488. 8 For decisions sustaining like statutes where the tax purchaser has been in CH. XVII] PROCEEDINGS TO RECOVER LANDS SOLD. 879 plies against the holder of the tax title as well as in his favor has been the conclusion of the courts, and it therefore cuts off either the original owner or the tax purchaser, if the adverse claimant has been in the occupation of the land for the period named.!_ It is also decided that, when the land is unoccupied, the holder of the - tax title has constructive possession, and if the owner of the origi- nal title does not bring ejectment (which the statute permits in such case) within the three years, he is barred,” but that if the tax deed is void on its face, the grantee in it has no constructive pos- session, and in such case the statute does not run in his favor,? though it would do so, even under a void deed, if his possession were actual, open and notorious.* possession, see Pillow v. Roberts, 18 How., 472; Vancleave v. Milliken, 13 Ind., 105; Doe v. Hearick, 14 id., 241, 245; Cofer ». Brooks, 20 Ark., 542; Sprague ». Pitt, McCahon, 212; Bowman». Cockrill, 6 Kans., 811. See DeGraw v. Taylor, 87 Mo., 310; Pease o. Lawson, 33 id. 35; McNamara o. Estes, 22 Iowa, 246; Eldredge ». Kuehl, 27 id., 160; Henderson ». Oliver, 28 id., 20; Case of Albee, 28 id, 277; McCready v. Sexton, 29 id., 856; Henley ». Street, 29 id., 429; Thomas v. Stickle, 32 id., 71; Douglass v. Tullock, 84 id., 262; Jeffrey v. Brokaw, 35 id., 505. 1Edgarton v. Bird,6 Wis. 527; Sprecker v. Wakeley, 11 id., 432; Knox ov. Cleveland, 18 id., 245; Jones ». Collins, 16 id., 594; Parish o. Eager, 15 id., 552; Whitney v. Marshall, 17 id., 174. These decisions held applicable to the Iowa statute. Brown ». Painter, 38 Iowa., 446. 2?Gunnison v. Heehn, 18 Wis., 268; Lawrence »v. Kenney, 32 id., 281. See Hill v. Kricke, 11 id., 442; Dean ov. Early, 15 id., 100. 3 Lain v. Shepardson, 18 Wis., 59. To the same effect are Taylor v. Miles, 5 Kans., 498; Shoat ». Walker, 6id.,65. See Leffingwell v. Warren, 2 Black, 599. 4Lindsay v. Fay, 25 Wis., 460. On this point, see also Cofer v. Brooks, 20 Ark., 542; Hoffman v. Harrington, 28 Mich.,90; Washburn o. Cutter, 17 Minn., 861. The statute does not apply to a tax title fraudulently obtained, as for ex- ample, by an agent who bought in his principal’s land when he should have paid the tax. McMahon v. McGraw, 26 Wis., 614. And see Carithers v. Weaver, 7 Kans., 110. The Michigan statute has been held not to apply in favor of one who was in possession under another claim at the time of acquir- ing the tax title. Gilman wv. Riopelle, 18 Mich., 143, 163. Neither the fact that one is assessed for the land, or that he has paid’ taxes for a series of years thereon ia sufficient proof that he is in the adverse possession of it. McDer- mott «. Hoffman, 70 Penn. St., 31,54; Chapman ». Templetcn,53 Mo., 463. And merely cutting timber without actual possession, cultivation or inclosure, js not adverse possession, but a mere trespass on the constructive possession of the owner. Washburn 2. Cutter, 17 Minn., 361; Safford ». Basto, 4 Mich., 406; Rivers », ‘hompson, 46 Ala., 335. 380 LAW OF TAXATION. [CH. XVII. There is serious objection in point of policy to making the tax deed give constructive possession of the land, with the conse- quences that have been made to follow, whether there are, or are not, any in point of law. The principal hardships perhaps under "any system of tax sales spring from the fact that, in a consider- able portion of the cases in which valuable lands are lost to the owners from delinquency, it is not so much in consequence of culpable neglect of the owners themselves, as through the negli- gence of agents, or through circumstances which have cast the ownership upon children, or other persons unaccustomed to busi- ness, who are found to be in default before they have fully be- come possessed of a knowledge of either their rights or their duties. In all these cases the tax purchaser knows that he has bought a title which, if legal, is to dispossess some title previously valid; while the adverse claimant frequently does not know or suspect that he or his land has been proceeded against for delin- quency, and he may, for a series of years thereafter, continue to pay taxes without any suspicion that he is paying upon the land of another. No man thinks of making periodical visits to the records, in order to see that his land is clear of liens, when he is not conscious of any default; and to allow the tax purchaser to lie by under such circumstances, without asserting a claim by entry or notice, until, by the lapse of a few years, his deed shall ripen into an indisputable title, is to encourage him to commit what, in morals at least, is a fraud upon the original owner. And the fraud is still more gross and palpable if, in point of fact, the original owner was not at all in default, and his land has been sold and conveyed in consequence of the carelessness, incompe- tency or fraud of public officers. There is another difficulty with those cases which bar a right by constructive adverse possession of the tax claimant. If they proceed upon the statute alone, which bars an action unless brought within a certain number of years after it accrued, then it would seem they might have held the tax purchaser barred with the same propriety as to make the like holding against the origi- nal owner; since either might have brought the suit, and, there- fore, the one is as much within the words of the statute as the other! If, on the other hand, they attach importance to adverse 1The Wisconsin statute authorizes an action for the recovery of lands to be CH. XVI] PROCEEDINGS TO RECOVER LANDS SOLD. 381 possession as by implication limiting the application of the statute to one only of the two classes of persons, who equally might have brought suit, then they import new principles into the law; for the law, unless by the force of these decisions, has no knowledge or recognition of such a thing as an adverse possession that is merely constructive. Possession of a vacant tenement is and must be purely a matter of fiction. Constructive possession is recognized for some pur poses, because, under our peculiar forms of action, it is found necessary in order to the protection of the rights of the owner against trespassers. The fiction is accepted, as all fictions in the law are, for the sake of justice; never to do injustice. But if one’s freehold has been illegally sold under adverse proceedings, there is no justice in resorting to a fiction of law in order to sus- tain the sale. What equity could exist in such a case, if one has honestly paid all that was demanded of him, or all that he has any reason ta believe he owed?? brought, when the premises are unoccupied, against “ some person exercising acts of ownership on the premises claimed, or claiming title thereto, or some interest therein, at the commencement of the action.” R. S., 1858, p. 838. This would seem to apply as well to the tax claimant as to the original owner, and if both are liable to suit, the obligation to sue would seem to be fairly divided between them. 1 Truett v. The Justices, 20 Geo., 104; Low ». Little, 17 Johns., 846; Johnson v. Ballou, 28 Mich., 379, 396. In Taylor v. Miles, 5 Kans., 498, in which it is held that the recording of a void tax deed cannot be made the date from which the statute of limitations shall run, Valentine, J. says (p. 515): “ First. A statute of limitations can only be applied where one person has received or suffered some injury from another person, either in contract or tort. It must operate to bar a cause of action, for it seems absurd to say that a cause of action can be barred, if no cause of action has ever accrued. Second. Every statute of limitation must give the injured party a reasonable time in which to commence his action, or the statute itself is void, tending to disturb vested rights. Zhird. When the statute has run its full time, the effect is to leave the parties in possession of just what they had before, nothing more and nothing less; and neither party has a right of action against the other; the injured party has lost hisremedy.”” Compare Bowman ». Cockrill, 6 Kans., 311. 2 We employ here the language of Agnew, J., in Brown v. Hays, 66 Penn. St., 229, 236. The case was one in which a single warrant of 1026 acres had been assessed as two of 726 and 300, respectively, and the owner had paid the assessment on the warrant by the number. Held, that the assessment of the warrant at 726 acres was not, by implication, notice to him that the 300 acres were assessed separately. 382 LAW OF TAXATION. [cH. XvIL In the very worst light in which his equities may be viewed, they are at the least equal to those of the purchaser; and to make a fiction the instrument by which he is to be debarred of his rights is a very severe, if not excessive, exercise of authority, where the legislature had already put him quite sufficiently at disadvantage. Rules of evidence are subject to legislative con- trol; and therefore the legislature may make the tax deed evi- dence of title. Rules of limitation are also subject to its control, and therefore the statute may quiet an open and public exercise of a right which remains unchallenged ; but a purely nominal and fictitious exercise of aright by means of the record of a paper, or even without that, if the legislature shall think proper to dispense with it, is a very unsubstantial basis for a conclusive muniment of title to land. Constructive possession in any case it would seem should be in the party having the legal title; and this would leave questions of title open so long as actual possession was had by no one? Peculiar questions arise under some statutes regarding the nature of the claim under which possession is held. The Illinois statute of 1839 declared the person in possession of land ‘under claim and color of title,’ who should continue in posses- sion for seven years, and pay all taxes, should be held and ad- judged the legal owner, ‘‘to the extent and according to the pur- port of his or her paper title.” Here was a distinct requirement of a paper title of some kind, and of one also that should give “color” of title. Where the tax deed is made prima facie evi- dence of title, it is plain that it gives color of title ; and the decis- ions have been that the seven years possession under the cir- cumstances required by the statute was sufficient with such a conveyance. The same decisions hold, however, that the deed 1 Possession and cultivation of a few acres cannot be constructive possession of a whole township. Chandler »v. Spear, 22 Vt., 388. *Dawley v. Van Court, 21 Ill, 460; Fell o. Cessford; 26 id., 522, 525; Hallo- way v. Clark, 27 id., 483; Bride o. Watt, 23 id., 507; Webster 0. Webster, 55 id., 325; Worthy ». Bowman, 47 id., 17; Morrison ». Norman, 47 id., 477; Dickerson v. Breeden, 30 id., 279, 825; Hardin v. Crate, 60 id., 215. To consti- tute color of title itis only necessary that the deed purports to convey title, and has been received in good faith. Winstanlay 0. Meacham, 58 Ill., 97. See Halloway ». Clark, 27 id., 483, 486, per Walker, J.; Dalton v. Lucas, 63 id., 337 But where he goes into possession and continues to hold the land and CH. XVIL] PROCEEDINGS TO RECOVER LANDS SOLD. 888 must be one, not by reason of defects, or of its recitals, void on its face. In Iowa the statutes are different, and protect the occu- pant who has been in possession under “claim” of title for the requisite period; and this may be with or without a deed or other documentary evidence giving color of right to the claim.? It is a principle of the law that where the statute of limitations has run 11 favor of any party, this perfects his right, and he may make it the ground of affirmative proceedings thereafter. This princi- ple applies in favor of the tax title, and dispenses with any neces- sity for proof of the proceedings when the title is subsequently brought in question, and precludes its being attacked. pay taxes for seven years, he will be protected, although the deed is void on its face; and good faith will be presumed, but the contrary may be shown. Dalton ». Lucas, 68 Ill, 837, An instrument which merely purports to contain an agreement to convey title at a future time, cannot constitute color of title. Osterman v. Baldwin, 6 Wall. 116. “What is meant by color of t¢tle? It may be defined to be a wrtting, upon its face professing to pass title, but which does not do it, either from want of title in. the person making it, or from the defect- ive conveyance that is used—a title that is imperfect, but not so obvicusly that it would be apparent to one not skilled in the law:” per Lumpkin, J., in ‘Beverly v. Burke, 9 Geo., 440, 448. 1 See besides the Illinois cases above referred to, Shoat v. Walker, 6 Kansas, 65; Carithers v. Weaver, 7 id.,110; Sapp ». Morrill, 8 id.. 677; Wofford v. Mc- Kenna, 23 Texas, 36; Kilpatrick v. Sisneras, id., 114; Cain». Hunt, 41 Ind, 466. A tax deed which does not show that the land it purports to convey was sold for delinquent taxes, is void on its face; and where the holder of such. deed has not been in actual possession of the property, the statute of limita- tions will not run so as to bar the right to bring an action in two years, to have the deed declared void. Hubbard »v. Johnson, 9 Kans., 632. ?Familton v. Wright, 80 Iowa, 485. And see Taylor v. Buckner, 2 A. K. “Marsh., 18; McCall v. Neeley, 3 Watts, 69,72. That a tax deed in due form is color of title, see also Dillingham »v. Brown, 38 Ala., 311; Rives ». Thomp- son, 43 id., 638, 641; Cofer ». Brooks, 20 Ark., 542; Pleasants v. Scott, 21 id, 3870, 374; Chapman v. Templeton, 53 Mo., 468: King v. Harrington, 18 Mich., 218. Sce further, Moore ». Brown, 4 McLean, 21; 8. C. in error, 11 How., 414; 1 illow v. Roberts, 18 id., 472. 2 Sprecker v. Wakeley, 11 Wis., 482; Knox »v. Cleveland, 18 id., 245, 249; Pleasants 0. Rohrer, 17 id., 557; Lawrence v. Kenney, 82 id., 281; Morton ». Sharkey, McCahon, 118; McKenney ». Springer, 8 Blackf., 606; Slipp 2. Brown,-2 Ind., 647; Lewis ». Wsbb, 8 Greenl., 826; Atkinson v. Dunlap, 50 Me., 111; Thompson ». Caldwell, 3 Lit., 187; Couch 0. McKee, 1 Eng. (Ark.), 484, 495; Girdner v. Stephens, 1 Heisk., 280; 8. C., 2 Am. Rep., 700; Bradford o. Shine’s Adm’r, 13 Fla., 898; 8. C., 7 Am. Rep., 239; Holden v.. James, 11 Mass., 596; Wright ». Oakley, 5 Met., 400; Woart ». Winnick, 3 N. H., 478; X 384 LAW OF TAXATION, [CH. XVIII CHAPTER XVIII. TAXATION OF BUSINESS. The general right. It has been seen that government may, in the discretion of its legislature, levy a tax on every species of property within its jurisdiction, or, on the other hand, that it may select any particular species of property, and tax that only. The same is true of occupations; government may tax one, or it may tax all. here is no restriction upon its power in this regard un- less one is expressly imposed by the constitution.! Federal taxation. The government of the United States has general power to levy taxes on all the subjects of taxation within the several states and territories, and in the District of Columbia.* The exceptions to this general power have been mentioned in preceding pages ® and need not be repeated. But although it has this general power, its exercise is commonly limited to compara- tively few subjects, and the government revenues are collected in the main from taxes levied in various forms upon business. Customs duties are levied exclusively by the United States, but internal taxes on business may be laid by the United States and the states as well; and what is said in this chapter is as ap- plicable to taxation by the one as by the other, where the con- trary is not indicated. The methods in which business shall be taxed are also in the legislative discretion. The taxes which are most customary are: 1. On the privilege of carrying on the business. 2. On the amount of business done. 8. On the gross profits of the bus- Martin ». Martin, 85 Ala., 560; Briggs 0. Hubbard, 19 Vt. 86; Wires o. Farr, 25 id., 41; Davis v. Minor, 1 How. (Miss.), 183; Moore v. Luce, 29 Penn, St., 262; Hinchman v. Whetstone, 23 Ill., 185; Chiles 0. Davis, 58 id., 411. ‘Butler’s Appeal, 78 Penn. St. 448, 451, per Mercur, J., citing Durach’s Appeal, 62 Penn. St., 491. As to equality in such taxation, see Dillon, Mun. Corp., § 598 et seq. * Loughborough ». Blake, 5 Wheat., 317. 3 See Index, tit. United States. CH. XVIII] TAXATION OF BUSINESS. 385 iness. 4, On the net profits or profits divided. But the tax may be measured by other standards prescribed for the purpose as well as by these. It has been seen that it is no conclusive objection to any such tax that it duplicates the burden to the person who pays it. To tax a merchant upon his stock as property, and also upon his gross sales, may seem burdensome, but it is not unconstitutional when not expressly forbidden by the constitution. The two taxes are not identical, and though they may operate unjustly in particu- lar cases, they are supposed to be imposed because the general result is equal and just. Taxes on privileges. A tax on the privilege of following any particular employment, is usually confined to those which in some particular are exceptional, either because supposed to be spe- cially profitable, or because they require special regulations, or be- cause the privilege is in the nature of a franchise, or because they supply a general demand, so that the burden imposed will be generally distributed.? But no employment is absolutely exempt from the liability to be taxed. The necessities of the government may require that the lowest employment as well as the most lu- crative shall contribute to its support, and if any is exempted, motives of policy will govern the discrimination. When the tax takes the form of a tax on the privilege of fol- lowing an employment, convenience in collection will commonly dictate the requirement of a license, and the person taxed will be compelled to pay the tax as a condition to the right to carry on the business at all.8 In such a case the business carried on without a license will be illegal, and no recovery can be had upon contracts made in the course of it* This distinguishes such a case from one of neglect to pay taxes in general; for except 1See Washington 2. State, 13 Ark., 752; Straub ». Gordon, 27 id., 625; Ma- bry v. Tarver, 1 Humph., 94; Lewellen ». Lockharts, 21 Grat., 570. ? The following of an ordinary employment, e. g., that of keeping a livery stable, is not to be regarded as a“ privilege” unless made so by statute. Co- lumbia v. Guest, 3 Head, 413. 3 License Tax Cases, 5 Wall., 472. As to the nature of licenses as taxes, see Lucas v. Lottery Commissioners, 11 Gill. & J., 490. 4 Bancroft ». Dumas, 21 Vt., 456; Alexander». O'Donnell, 12 Kans., 608. See Page v. State, 11 Ala., 849. 25 886 LAW OF TAXATIO.. [cH. XVIII. where payment is thus made a condition to the right to transact business, a default therein cannot affect the validity of business transactions.! But license and tax do not necessarily go together ; a license may be required when no tax is imposed, and an un- conditional license does not exempt the licensee from being taxed upon the privilege it gives him. In this particular all valuable privileges stand upon the same footing ; they are all liable to tax- ation at the will of the state, unless the state has bargained to exempt them. As is said in one case, “ There is a clear distinc- tion recognized between a license granted or required as a condi- tion precedent, before a certain thing can be done, and a tax as- sessed on the business which that license may authorize one to engage in. A license isa right granted by some competent au- thority to do an act which, without such authority, would be ille- gal. A tax is arate or sum of money assessed upon the person, property, etc., of the citizen.’ The privilege obtained by the li- cense may therefore be taxed in consideration of the property value it possesses,? and this not only by the state directly, but by the county and town also, if proper authority has been conferred upon them for the purpose.* 1 Larned v. Andrews, 106 Mass., 485, citing Smith ». Mawhood, 14 M. & W. 452. 2 Trippe, J., in Home Ins. Co. v. Augusta, 50 Geo., 580, 587. And see Savan- nah v. Charlton, 36 id., 460; Burch »v. Savannah, 42 id., 596; Robinson v. The Mayor, ete., of Franklin, 1 Humph., 156; Ould v, Richmond, 23 Grat., 464; Drexel ». Commonwealth, 46 Penn. St., 31; Reed v. Beall, 42 Miss., 472. 3Sce authorities cited in last note. Also Coulson v. Harris, 43 Miss., 728, in which a license for which a large sum was paid was held taxable as property. Also Drysdale v. Pradas, 45 id., 445. 4 Where one is licensed hy the state to carry on any particular business, a county, city, or town cannot compel him to take out a further license as a con- dition of doing business within it. Durham ». Rochester, 5 Cow., 462; Ould v. Richmond, 28 Grat , 464; Napier v. Hoge, 31 Texas, 287; Floyd v. Edenton, 14 Geo., 854: Cuthbert v. Conly, 32id., 211; Savannah ». Charlton, 36 id., 460; Burch v. Savannah, 42 id., 596; Ordinary v. Retailers of Liquors, 42 id., 825; Home Ins. Co. v, Augusta, 50 id.,530. Soa town cannot defeat a county li- cense by requiring a town license in addition. Dunham »v. Rochester, supra; Rome v. Lumpkin, 5 Geo., 447. But these several cases recognize the right of the state to give to the municipalities the authority to tax occupations licensed by the state. In Heise v. Columbia, 6 Rich., 404, it was decided that a license granted by the state could not be forfeited by a municipal corpora- tion for breach :f condition, any more than could any other thing of value CH. XVIII. ] TAXATION OF BUSINESS. 387 Construction of municipal powers. The general rule that the powers of a municipal corporation are to be construed with strictness, is peculiarly applicable to the case of taxes on occu- pations. It is presumed the legislature has granted in plain terms all it has intended to grant at all. If it is not manifest that there has been a purpose by the legislature to give authority for col- lecting a revenue by taxes on specified occupations, any exaction for that purpose will be illegal.1 If a minimum tax is prescribed by statute, one measured by the business, and which may exceed the sum named, is unauthorized and void;* but where a discre- tionary power is conferred, its exercise will not be interfered with, unless it clearly appears to have been abused.® Kinds of business taxed. If taxes were levied on any well matured or intelligible system, it might be practicable to classify those which are levied upon business, with reference to the special reasons which have induced the selection of particular branches of business for taxation, and the exemption of others. But this is wholly impracticable. Many impolitic taxes are laid, and many unjust taxes, without any purpose to do what is not for the public interest, or what is unfair and unequal. A vast number 1See Kip v. Patterson, 26 N.J., 298, in which the requirement of a fee of five cents from every person selling hay or other produce within the city was held unauthorized, the power to tax in that manner not having been conferred, and the requirement not appearing to be made as a police regulation. For the general principle, see Robinson ». Franklin, 1 Humph., 156; St. Louis ». Laughlin, 49 Mo., 559; Dubuque ». Life Ins. Co., 29 Iowa, 9. ?Kniper ov. Louisville, 7 Bush, 599. On the principle of a strict construc- tion of powers, it was held in Butler’s Appeal, 73 Penn. St., 448, that the au- thority to impose a license fee did not carry with it authority to punish the failure to pay the fee by fine and imprisonment. 3 Burlington v. Putnam Ins. Co., 81 Iowa, 102; Kniper ». Louisville, 7 Bush, 599; citing Mason v. Lancaster, 4 id., 406. It was decided in the case first named, that the city might graduate the rate of licenses when not restricted in that regard. And see East St. Louis ». Wehrung, 46 I1l., 892. Authority “to make such assessment on the inhabitants of Augusta, or those who hold taxa- ble property within the same, as may seem expedient,” will warrant a tax on a foreign insurance company doing business within the city. Home Ins. Co. ». Augusta, 50 Geo., 580. See Commonwealth v. Milton, 12 B. Monr., 212. That special powers conferred upon towns to charge license fees are valid, though the like licenses are not allowed by the general laws of the state, sce Woodward v. Turnbull, 3 Scam., 1; Ottawa v. La Salle, 12 Ill, 839; Byers ». Olney, 16 id., 85 388 LAW OF TAXATION. [CH. XVIIZ of subjects are sometimes selected for taxation, because it is sup- posed justice requires it, when, had the same burden been laid upon a few, it would have been quite as just, quite as equally dis- tributed, and the tax collected with greater economy. Classifica- tion will, therefore, not be attempted, but some reference may be made to those occupations which are most often selected for taxa- tion. Bankers. There are various methods of taxing the business of bankers. When it is carried on under corporate powers, the franchise is sometimes subjected to a specific tax; but taxes are also imposed which are measured by the business done, the de- posits received, the profits made, etc. Brokers are taxed after similar standards.? Curriers of Goods and Persons. While railway corporations are generally taxed upon their property, they are also sometimes taxed in other modes. In some states they are taxed a specific rate on their capital, in others the franchise is taxed, ‘in others the business or profits? The vehicle, by means of which the busi- ness is carried on may also be taxed, when the tax does not amount to a regulation of inter-state commerce.® Practitioners of Law and Medicine. These are frequently taxed a specific sum upon the privilege of pursuing their calling for a year or other specified time. Such a tax is nota poll tax, and may therefore be levied when poll taxes are forbidden.* 1 As to definitions of bankers and brokers under the federal revenue laws, see Northrup ». Shook, 10 Blatch., 248; U.S. 0. Cutting, 3 Wall., 441; U.8. 0. Fisk, id., 445. Of cattle brokers, see U.S. v. Kenton, 2 Bond, 97. Of brokers, State v. Field, 49 Mo., 270. A statute of Tennessee required those buying notes at a greater shave than six per cent. to take out a license, make a state- ment of the amount employed in the business the preceding year, and pay thereon a tax of five cents on each $100. The penalty for a failure to comply with it was $500. This act enforced. Young». The Governor, 11 Humph., 147. Bankers whose whole capital is invested in government securities are not taxable as such. Chicago v. Lunt, 52 IIl., 414. 2 See State Tax on Gross Receipts, 15 Wall., 284. 3 Sce ante, pp. 61-64. A wharfage tax may be levied by a city as a tax on all vessels touching at its wharves. Marshall v. Vicksburgh, 15 Wall., 146. As to duties on tonage, see ante, p. 61. 4 Egan v. County Court, 3 H. & McH., 169. Authority to tax“ trades, occu- pations and professions,” does not authorize a tax on notaries public. New Orleans v. Bienvenu, 23 La. An., 710. CH. XVIII] TAXATION OF BUSINESS. 389 Sometimes the tax is graduated by the supposed value of the privilege.! Auctioneers and Commission Dealers. These are commonly taxed either a specific sum periodically, or a sum measured by the extent of their dealings? It has been held thata tax “on the gross amount of auction sales made in and during the tax year” is to be assessed against and paid by the auctioneer, and not by the owner of property sold$ This is doubtless correct, though in the end such a tax is paid by the employer. Merchants. nis class of persons is often selected for taxa- tion.* The fact that they pay taxes on their stock in trade as property, does not preclude their occupation being specially taxed.5 1See Simmons ». State, 12 Mo., 268; Ould v. Richmond, 23 Grat., 464. A tax on the “ privilege ” of a lawyer may be enforced (under proper legislation), by levy on the body. Stewart v. Potts, 49 Miss.,'749. See Jones v. Page, 44 Ala., 657. Where the charter of a city enumerated certain classes that should be compelled to take outa license before exercising their vocation in the city, and then followed with these words: ‘and all other business, trades, avoca- tions, or professions whatever,” it was held that if the profession of “law” was not specifically enumerated in the section, that the city had no power to lay a license tax on lawyers. The rule is, where general words follow partic- ular ones, to construe them as applicable only to persons or things of the same general character or class.’ City of St. Louis o. Laughlin, 49 Mo., 559. Clergymen are sometimes subjected to an occupation tax. See Miller o. Kirkpatrick, 29 Penn. St., 226. So are college professors. See Union County v. James, 21 id., 525. 2 Moseley v. Tift, 4 Fla. 402; Paddleford » Savannah, 14 Geo., 488. In Pearce v. Augusta, 37 id., 597, it was decided that a general authority to levy taxes on taxable property would support a tax on the amount of gross sales and’on the commissions received. In Lott v. Ross, 88 Ala., 156, it was held that a tax on “the gross amount of sales of merchandise” is not a property tax, but an occupation or privilege tax, the amount being regulated by the extent to which the privilege has been enjoyed. (Citing Moseley ». Tift, 4Fla., 402; State v. Stephens, 4 Texas, 137; State v. Bock, 9 id., 369; De Witt». Hays, 2 Cal., 468; Nathan v. Louisiana, 8 How., 80). Such a tax would therefore not be leviable under a power to levy a tax “not exceeding twenty cents upon each hundred dollars of taxable property” within the county. Id. 3 State v. Lee, 38 Ala., 222. 4As to what constitutes a “merchant,” see State v. Whittaker, 33 Mo., 457; State vo. West, 34 id., 424. What a “dealer in tobacco,” Carter v. State, 44 Ala., 29. 5 Woolman 2». State, 2 Swan, 3538; State v. Stephens, 4 Texas, 137; State v. Bock, 9 id., 369. As to such taxes in general, see Wilmington v. Roby, § 890 LAW OF TAXATION. (CH. XVIII. Other dealers are taxed under proper designations. But where a municipal corporation is empowered to tax a particular occupa- tion, it cannot, by definition, bring persons within the power who do not in fact follow the occupation! But a merchant, paying a tax as such, if he adds to that occupation another though kindred business which is separately taxed, is not by his license as a merchant excused from paying the tax on such other occupation.? Peddlers and transient dealers are commonly taxed a specilic sum by the year, because they are likely to escape any other.® Manufacturers and Dealers in Liquors. This is a class of dealers commonly selected for exceptional taxation. Their occupation is sometimes taxed for federal, state and municipal purposes, though their stocks are taxed as property, and whatever has been im- ported has paid a heavy duty. The right to levy these several taxes has almost ceased to be contested. Regulation is gener- ally had in view in such taxes, and they will be referred to again Tred., 250; Commissioners v. Patterson, 8 Jones’ L., 182; Cousins ». Common- wealth, 19 Grat., 807; French ». Barber, 4 Sneed, 193. A statute required a license to be obtained by every person selling goods by sample who was not a “resident merchant.” Held, that, asa man may be a resident citizen and not a resident merchant, and the reverse, there was no discrimination in favor of citizens of the state, and therefore the’ statute was constitutional. Such a statute is not a regulation of commerce between the states. Speer v. Commonwealth, 23 Grat., 935; 8. C., 14 Am. Rep., 164. 1Mays v. Cincinnati, 1 Ohio, N.S, 268. Case of a tax on “ hucksters.” ° Hirsh v. Commonwealth, 21 Grat., 785. Case of a merchant taxed as junk dealer also. 8For definition of “peddler,’ see State v. Hodgdon, 41 Vt. 189. The fol- lowing are cases of such taxes: Wyne »v. Wright, 1 Dev. & Bat., 19; Cowles +, Brittain, 2 Hawks, 204; Wilmington ». Roby, 8 Ired., 250; Whitfield o. Longest, 6 id., 268; Plymouth ». Pettijohn, 4 Dev., 591; State v. City Council, 10 Rich., 240; State v. Pinckney, 10 id., 474; City Council v. Ahrens, 4 Strob., 241; Keller o. State, 11 Md., 525. For case of a tax on those canvassing to buy or actually buying means of subsistance, see Sledd v. Commonwealth, 19 Grat., 813. 4See Durach’s Appeal, 62 Penn. St., 491; Aulanier v. The Governor, 1 Texas, 653; Baker v. Panola County, 80 id., 86; Kitson ». Ann Arbor, 26 Mich., 325; Block v. Jacksonville, 36 Ill., 301. Such taxes when laid by municipalities are not void because of their discriminating as between different localities therein. East St. Louis ». Wehrung, 46 Tll., 392. As to tne difference between a manufacturer and a dealer, see State ». Campbell, 33 Penn. St., 380. CH. XVIII] TAXATION OF BUSINESS. 391 in the next chapter. Some of the cases which have considered taxes of this nature are referred to in the note. Theatrical Exhibitions and Shows. These are a very proper subject for special taxation, and are.commonly charged either a specific tax by the year or for single representations. Such taxes call for no special remark.? Hackmen, Draymen, etc. While these classes of persons are usually required to take out a license for purposes of regulation, they are also sometimes charged a substantial sum for revenue purposes. A few cases are referred to in which the license fee was construed to be a tax. Taxes on Manufactures. These are generally excise taxes. For a time, during the civil war, neatly all manufactures were taxed by the federal government, but only a few kinds are now taxed, either by the nation or by the states. Any or all may be taxed by both.t Taxes on Offices. The United States may tax the salaries or compensation of its officers, and the states may tax those of the 1 It was once a question whether license to keep a tavern included authority to sell liquors, and the following cases have considered it, or points bearing upon it. Hirn v. State, 1 Ohio, N.S., 15; Page o. State, 11 Ala., 849; Commis. sioners, etc., v. Jordan, 18 Pick., 228. Compare State v. Chamblyss, 1 Cheves, 220; Commissioners of Roads v. Dennis, id., 229. As to tavern licenses, see further, State v. Prettyman, 3 Harr., 570; Bonner v. Welborn, 7 Geo., 296; Hannibal v. Guyott, 18 Mo., 515; St. Louis v. Siegrist, 46 id., 583; Common- wealth v. Thayer, 5 Met., 246; Overscers of Crown Point ». Warner, 3 Hill, 150. That under the power to “tax”? and also to “restrain” the liquor traftic, a town may license it, see Mt. Carmel v. Wabash County, 50 IL, 69. 2?See Mabry ov. Tarver, 1 Humph., 94,98; Trapp v. White, 85 Texas, 387; Orton v. Brown, 35 Miss. 426; Germania »v. State, 7 Md., 1. The business of a traveling circus not a trade. Speak v. Powell, L. R., 9 Exch., 25. The license fee not a tax on property. Orton v. Brown, supra. See Baker v. Cin- cinati, 11 Ohio, N. §., 534. * Bennett v. Birmingham, 31 Penn. St. 15; Commonwealth »v. Stodder, 2 Cush., 562. For some special questions the following cases may be consulted: St. Charles v. Nolle, 51 Mo., 122; Gartside v. Hast St. Louis, 43 Ill, 47; Suy- der v, North Lawrence, 8 Kans., 82; Cincinnati v. Bryson, 15 Ohio, 625. 4See Commonwealth v. Byrne, 20 Grat., 165. A gas company is a “manu- facturing company.” Commonwealth v. Lowell Gas Light Co., 12 Allen, 75. But an aqueduct company is not. Dudley v. Jamaica Pond Aqueduct Co., 10¢ Mass., 183. 392 LAW OF TAXATION. [CH. XVIII state officers, though neither can tax the compensation received by the officers of the other And the state may authorize its subdivisions to tax state, county or township offices if it shall be deemed proper to do so.” Other “ Privilege” Taxes. Where “privileges” are taxed, any occupation which is not open to all, but can only be exercised under license from some constituted authority, is to be re- garded as a privilege.® And succession to an inheritance may be taxed as a privilege, notwithstanding the property of the estate is taxed, and taxes on property are required by the constitution of the state to be uniform. Where a tax is laid on all “ pursuing any occupation, trade or profession,” one keeping a billiard table | for profit is included; though if he kept it for amusement merely he would not be. It is no objection to a tax on a business that it operates indirectly as a tax on the consumer.’ That may per- haps be the very reason why it has been deemed desirable to levy it. A tax ona business should be laid where the business is car- ried on; not where the party has his residence, if it is elsewhere." Taxes on corporations. These are imposed in so many forms 1 Collector v. Day, 11 Wall, 113; ante, p.58. The compensation of a clerk in a postoffice is taxable by the state. Melcher v. Boston, 9 Met., 73. ? Gilkeson v. The Frederick Justices, 18 Grat., 577. 2 Caruthers, J.,in French v. Baker, 4 Sneed, 193, 195. 4Eyre v. Jacob, 14 Grat., 422. 5 Tarde v. Benseman, 31 Texas, 277. 8 Wiley vo. Owens, 39 Ind., 429. T Bates v. Mobile, 46 Ala., 158. See Miner v. Fredonia, 27 N. Y., 155; Gar- diner, etc., Co. ». Gardiner, 5 Greenl., 1383. For other cases of business er oc- cupation taxes, see Simmons ». State, 12 Mo., 268; St. Louis v. Laughlin, 49 '* id., 456; Carroll v. Tuscaloosa, 12 Ala. 173; Gunter ». Leckey, 30 id., 591, Portland v. O’Niell, 1 Oregon, 218. As to meaning of profits or income when a tax is laid on results by this designation, see People v. Supervisors of Niag- ara, 4 Hill,20; Same v. Same, 7 id., 504; New Orleans v. Hart, 14 La. An., 803; Same v. Fassman, id., 865. As to meaning of an insurance company’s surplus, see State v. Parker, 34 N.J.,479; Same o. Same, 35 id., 574. A pro- vision in acity charter that its taxes should “be apportioned in the same manner as the state tax,” would preclude its discriminating against an occu pation ina degree beyond that made against that occupation by the state. Marshall . Snediker, 25 Texas, 460. CH. XVIII] TAXATION OF BUSINESS. 893 that an enumeration is difficult. The following may be men- tioned: 1. A specific tax on the franchise. 2. A tax on the property by valuation. 8. A tax on the capital stock. 4. A tax on the business done. 5. A tax on dividends or on profits. Sometimes the franchise is taxed, and also the capital stock or the property; but to tax the capital stock and also the property in which the capital is invested, would be imposing the same bur- den twice on the same property, and consequently unjust, if not illegal. 1The legislature has power to require corporations organized in the state to pay to the treasurer of the state, a tax on the excess of the market value of all their capital stock, over the value of their real estate and machinery other- wise taxable. Commonwealth v. Lowell Gas Light Co., 12 Allen, 75; Com- monwealth v. Hamilton Manuf. Co., id., 298. Such a tax cannot be supported as a tax on property, because not “proportional;” “that is, it is not laid according to any rule of proportion whatever, but is imposed only on the corporations designated in the act, without any reference to the amount required to be raised by taxation for public purposes, or to the actual prop- erty held by such corporation subject to taxation, or to the whole amount of property in the commonwealth liable to be assessed for the public service. Commonwealth v. Peoples’ Savings Bank, 5 Allen, 428, 481; Oliver ». Wash- ington Mills, 11 id., 268, 274.” Per Bigelow, Ch. J..in Commonwealth v. Ham- ilton Manuf. Co., 12 id., 298, 300. It is ‘in the nature of an excise or duty on the franchise or privilege of each of the corporations designated, to be estimated and measured by ascertaining the excess of the market value of the capital stock or aggregate of the shares, over the value of the real estate and machinery for which each corporation was assessed, in the town or city in which it was established and carried on its business.” Bzgelow, Ch. J., in Commonwealth v. Lowell Gas Light Co., 12 Allen, 75, 76. In 12 Allen, 301, the judge shows that this is not equivalent to a tax on property, as the value of the shares may not correspond at all to that. See also Manuf. Ins. Co. ». Loud, 99 Mass., 146; Provident Ins. Co. v. Massachusetts, 6 Wall., 611; Ham- ilton Co. v. Massachusetts, id., 682; Illinois Mut. Fire Ins. Co. v. Peoria, 29 Ill, 180; Coite ». Society for Savings, 32 Conn., 178; Society for Savings v. Coite, 6 Wall., 594; Coite ». Conn. Mut. Life Ins. Co., 86 Conn., 512. That an excise tax may be imposed on corporations chartered in other states, but doing business in the state imposing it, see Attorney General v. Bay State Mining Co., 99 Mass., 148. The subject of taxes on foreign insurance compa- nies was much considered in People v. Thurber, 13 IIL, 554, per Caton, J., and in People v. State Treasurer, 31 Mich., 6, per Graves, J. It was objected in People v. Thurber, that the tax was void because not uniform; that is, because the same sum was not imposed upon each company or agent; but it was well replied that there was no impropriety or injustice in requiring each to con- tribute to the state revenues in proportion to the amount of business done or money received. Thata tax on the market value of the stock of corporation 394 LAW OF TAXATION, [CH. XVIIL Taxation of national banks. By the act ot congress of June 8, 1864, the shares of stock held by any person or body corpor- ate in any of the national banks,areallowed to be included in the valuation of personal property “in the assessment of taxes im- posed by or under state authority, at the place where such bank is not applicable to the guaranty stock of a mutual life insurance company, yhich is redeemable from its earnings, such stock being rather in the nature ef a debt of the corporation than stock as generally understood, see Common- wealth v. Berkshire Life Ins. Co., 98 Mass., 25. As to the taxation of the cap- ital of mutual life insurance companies, see Coite o. Conn. Mut. Life Ins. Co., 86 Conn., 512. An English joint stock insurance company, clothed with the right of act- ing independently of the rules that govern an ordinary partnership, is taxable as a “company incorporated or associated.” Oliver v. Liverpool, etc., Co., 100 Mass., 531; Liverpool, ctc., Co. v. Massachusetts, 10 Wall., 566. In Coite v. Society for Savings, 82 Conn., 173, 184, in which a tax ou a sav- ings institution measured by the amount of its deposits, was contested on the ground that, in effect, it was a tax on United States securities in which the funds of the corpuration had been invested, McCurdy, J., speaking of the va- rious methods of taxation, says: ‘‘ Most commonly the tax is laid upon prop- erty. But this is not always the most convenient, expedient or just mode. A large portion of the national revenues accrues from a tax on incomes, divi- dends, licenses, legacies, stamps, etc., irrespective of property. In this state, for many years, and until very lately, the form of taxing lawyers, physicians, traders, tavern keepers, manufacturers and mechanics, was to assess them, either at a fixed sum for each respective class, or at the discretion of the ‘listers.’ In familiar language, this was called an ‘assessment on the faculty.’ The present statutes are not free from similar provisions. A capitation tax still remains. The agent, in this slate, of an insurance company existing out of the state, is required, in consequence of being allowed to conduct business here, to pay a certain per centage on the amount of his premiums and collec- tions. Auctioneers and express companies are assessed ina like manner. In the case of quarry, mine and ore bed companies (joint stock or incorporated), not only the stock itself, but the franchise is expressly made subject to asscss- ment. By a law of 1862, itis enacted that, for the purposes of taxation, no stock of any railroad company shall be estimated in the list at less than ten per cent. of its par value, although it was then notorious that much of the stock so to be valued was utterly worthless. These examples show that the state has ever adopted, at its own will, different bases of taxation as applied to different subjects, and there is no occasion for surprise that the legislature, in the matter befure us, thought proper to impose a tax directly and specitic- ally on these corporations as such, without reference to their assets. There is no reason why they should not contribute their full share to support the gov- ernment through which they exist and flourish.” As to the taxation of savings societies in general, see Savings Bank v. New London, 20 Conn., 111. CH. XVIII] TAXATION OF BUSINESS. 895 is located, and not elsewhere, but not at a greater rate than is as- sessed upon other moneyed capital in the hands of individual citizens of such state,” and not exceeding “the rate imposed upon the shares of any of the banks organized under the authority of the state” where the bank is located; and nothing in the act is to exempt the real estate of such banks “from either state, county or municipal taxes, to the same extent, according to its value, as other real estate is taxed.” Under this act, if no tax is imposed by the state on shares in state banks, the shares in the national banks are not taxed at all.1 This difficulty was met with in states whose laws taxed the capital of banks, but not the shares thereof.” The act of congress does not allow of taxation of the capital,® nor will it admit of municipal taxation of national bank shares, when the state banks are exempt therefrom.4 But the fact that two banks, by their charter, are specially taxed, will not preclude the taxation of the shares in the national banks by general law,5 neither are the shares to be excluded from taxation, because some other classes of moneyed capital are exempt from taxation by law of limited application.® It is competent to require that the tax on the shares shall be paid by the bank.’ Van Allen v. The Assessors, 3 Wall., 573; Bradley v. People, 4 id., 459.. ? Bradley v. People, 4 Wall., 459; Smith v. First National Bank of Tecum- seh, 17 Mich., 479. 3Smith v. First National Bank of Tecumseh, 17 Mich., 479; Collins v. Chi- cago, 4 Biss., 472. See Smith v. Webb, 11 Minn., 500; First National Bank of Hannibal v. Meredith, 44 Mo., 500. 4Craft v. Tuttle, 27 Ind., 382; Wright v. Stiltz, id., 338. 5 Lionberger ov. Rouse, 43 Mo., 67; S. C. in error, 9 Wall. 468. 6 Rverett’s Appeal, 71 Penn. St., 219. The whole subject of taxation under this law received careful examination in Provident Iustitution ». Boston, 101 Mass., 575. And see Tappan v. Merchants’ National Bank, 19 Wall., 490, opin- ion by Watte, Ch. J. 7 National Bank ». Commonwealth, 9 Wall., 353; Lionberger v. Rouse, id., 468; First National Bank »v. Douglass Co., 1 Cent. Law Jour., 584, per Dit- lon, J. As the federal decisions referred to seem now to have covered the ground of taxation of national banks, we abstain from reference to many state decisions. 396 LAW OF TAXATION. [CH. XIX. CHAPTER XIX. TAXES UNDER THE POWER OF POLICE. Difference between taxation and regulation. There are some cases in which levies are made and collected under the general designation of taxes, or under some name employed in revenue laws, to indicate a particular class of taxes, where the imposition of the burden may fairly be referred to some other authority than to that branch of the sovereign power of the state under which the public revenues are apportioned and col- lected. The reason is, that the imposition has not for its object the raising of revenue, but looks rather to the regulation of rela- tive rights, privileges and duties, as between individuals, to the conservation of order in the political society, to the encourage- ment of industry, and the discouragement of pernicious employ- ments! Legislation for these purposes, it would seem proper to look upon as being made in the exercise of that authority which is inherent in every sovereignty, to make all such rules and regu- lations as are needful to secure and preserve the public order, and to protect each individual in the enjoyment of his own rights and privileges by requiring the observance of rules of order, fairness and good neighborhood, by all around him. This manifestation of the sovereign authority is usually spoken of as the police power. The distinction between a demand of money, under the police power, and one made under the power to tax, is not so much one of form as of substance. The proceedings may be the same in the two cases, though the purpose is essentially different. The one is made for regulation and the other for revenue. If, there- fore, the purpose is evident in any particular instance, there can be no difficulty in classifying the case and referring it to the ‘ Mr. Walker, in his Science of Wealth, adds this to Adam Smith’s four car- dinal rules of taxation: “V. The heaviest taxes should be imposed on those commodities the consumption of which is especially prejudicial to the interests of the people.” CH. XIX.] TAXES UNDER THE POWER OF POLICE. 397 proper power. But in what has been said regarding the appor- tionment of taxes, it has been seen that other considerations than those which regard the production of a revenue are admissible, and that regulation may be kept in view when revenue is the main and primary purpose. The right of any sovereignty to look beyond the immediate purpose to the general effect, neither is nor can be disputed ; the government has general authority to raise a revenue and to choose the methods of doing so; it has also genera! authority in the regulation of relative rights, privileges and duties; and there is no rule of reason, policy or government which can require the legislature, when making laws with the one object in view, to exclude carefully from its attention the other. Nevertheless, cases of this nature are to be regarded as cases of taxation. Revenue is the primary purpose, and the regu- lation results from the methods of apportionment that are resorted to in obtaining the revenue. Only those cases, where regulation is the primary purpose, can be specially referred to the police power. Custom has much to do in determining whether certain classes of exactions are to be regarded as taxes or as duties imposed for regulation. If by the common understanding and general custom of the country, a particular duty is regarded as being imposed upon certain individuals, not as their proportionate share in the burdens of government, but because of some special relation to property peculiarly located, or to business peculiarly troublesome or dangerous, so that a requirement that the duty shall be per- formed by such individuals is usually regarded as only in the nature of regulation of relative obligations and duties through the neighborhood or the municipality, there is no sufficient reason why this may not be considered a mere police regulation, though the proceedings assume the form of taxation, and are even desig- nated by that name. The summoning of the people once a year to put the highways of their neighborhood in order, has some- times been looked upon as a case of this description; to some extent, at least, in the nature of a police regulation,! notwith- standing that, on a failure to obey the summons, the value of the 1 Bee State v. Halifax, 4 Dev. Law, 345; Sawyer v. Alton, 3 Scam., 127, 130; Pleasant v. Kost, 290 Ill., 49; Overseers of Amenia v. Stamford, 6 Johns., 92; Draining Company Case, 11 La. An., 338, 372. 898 LAW OF TAXATION. [CH. XIX. labor is collected in money. A public purpose, such as is usu- ally accomplished by an expenditure of public moneys, is indeed had in view in such a case; but the custom of requiring highway labor seems to have come down to us from a period when regular taxes were unknown or only collected in kind, and when it was looked upon as a neighborhood duty to keep the roads in order, as it was to prevent riots and arrest criminals, or make compen- sation for their offenses. A like practice, based upon a similar idea, has prevailed in other countries. Sidewalk assessments. The cases of assessments for the con- struction of walks by the side of the streets, in cities and other populous places, are more distinctly referable to the power of po- lice. These foot walks are not only required, as a rule, to be put and kept in proper condition for use by the adjacent proprietors, but it is quite customary to confer by the municipal charters full authority upon the municipalities, to order the walks of a kind and quality by them prescribed, to be constructed by the owners of adjacent lots at their own expense, within a time limited by the order for the purpose, and that in case of their failure so to construct them, it shall be done by the public authorities, and the cost collected from such owners, or made a lien upon their prop- erty. When this is done the duty must be looked upon as being enjoined as a regulation of police, made because of the peculiar interest such owners have in the walks, and because their situa- tion gives them peculiar fitness and ability for performing, with promptness and convenience, the duty of putting them in proper state, and of afterwards keeping them in a condition suitable for use, Upon these grounds the authority to establish such regula- tions has frequently been supported.! 1 The leading case is that of Godard, Petitioner, 16 Pick., 504, 509, in which Shaw, Ch. J., speaking of a by-law imposing such an assessment, answers the principal objections to it, and explains its nature as follows: “ Another, and perhaps the most important objection is, that the by-law ia one imposing a tax or duty upon the citizens, and it is a violation of the con- stitution in this, that it is partial, and unequal, and contravenes that funda- mental maxim of our social system, that all burdens and taxes laid on the people for the public good shall be equal. But the court are all of the opinion that the by-law in question 1s not obnoxious to this objection. “Tt is not speaking strictly to characterize this city ordinance as a law levy- ing a tax, the direct or principal object of which is, the raising of revenue. CH. XIX.] TAXES UNDER THE POWER OF POLICE. 899 Sewer assessments. There seems to be no legal impediment to a requirement under the police power that lot owners in cities It imposes a duty upon a large class of persons, the performance of which requires some Jabor and expense, and therefore indirectly operates as a law creating a burden; but we think it is rather to be regarded as a police regula- tion, requiring a duty to be performed, highly salutary and advantageous to the citizens of a populous and closely built city, and which is imposed upon them because they are so situated as that they can most promptly and conveniently perform it, and it is laid, not upon a few, but upon a numerous class, all those who are so situated, and equally upon all who are within the description composing the class. It is said to be unequal, because it singles out a particular class of citizens, to wit, the owners and occupiers of real estate, and imposes the duty exclusively upon them. If this were an arbitrary selec- tion of a class of citizens, without reference to their peculiar fitness and ability to perform the duty, the objection would have great weight; as for instance, if the expense of clearing the streets of snow were imposed upon the mechan- ics, or merchants, or any other distinct class of citizens, between whose con- venience and accommodation, and the labor to be done, there is no natural relation. But suppose there is a class of citizens who will] themselves com- monly derive a benefit from the performance of some public duty, we can see no inequality in requiring that all those who will derive such benefit, shall by a general and equal law be required to do it. Suppose a by-law should require every inhabitant who keeps a cart, truck or other team, or a coach or other carriage, to turn out himself, or send a man, with one or more horses, after a heavy fall of snow, to assist in leveling it. Although other citizens would derive a benefit, yet as these derive some peculiar benefit, accompanied -with the ability, I can at present perceive no valid objection to a by-law re- quiring if, on the ground of inequality. Supposing a general regulation, that at certain seasons of the year, every shopkeeper should sprinkle the side- walk in front of his own shop, or sweep it, inasmuch as he has a peculiar benefit, and as the duty is equal upon all who come within the description, it seems to us to be equal, in the sense in which the law requires all such bur- dens to be equal. And it appears to us that the case before us is similar. Although the sidewalk is part of the public street, and the public have an easement in it, yet the adjacent occupant is often the owner of the fee, and generally has some peculiar interest in it, and benefit from it, distinct from that which he enjoys in common with the rest of the community. He has this interest and benefit, often in accommodating his cellar door and steps, a pussage for fuel, and the passage to and from his own house to the street. To some purposes, therefore, it is denominated his sidewalk. For his own ac. commodation, he would have an interest in clearing the snow from his own door. The owners and occupiers of house lots and other real estate, therefore, have an interest in the performance of this duty, peculiar and somewhat dis- tinct from that of the rest of the community. Besides, from their situation. they have power and ability to perform this duty, with the promptness which the benefit of the community requires; and the duty is divided, distributed and apportioned upon so large a number, that it can be done promptly and +00 LAW OF TAXATION, [cH. XIX. and villages shall be at the expense of constructing that portion of the public sewer in front of their respective premises. It is effectually, and without imposing a very severe burden upon any one. Sup- posing a by-law should require, what is often done, in practice, that upon an alarm of fire in the night, all householders, on strects leading to and near the fire, should exhibit a light. This would seem to be reasonable. Or that all the owners or occupiers of dwelling houses, having a well and pump, should keep them in repair at their own expense, to be used in case of fire. It would operate partially, but it seems to us not unequal, in the sense in which we are using that term. The city might keep persons ready in every street to light torches and flambeaux in case of fire, and the expense to be paid from the treasury; still it appears to me, that as householders would derive a benefit from the operation of this general regulation, as their local situation puts it peculiarly within their power and ability to perform it without great expense, and as it is equal in its terms, it would not be obnoxious to the charge of being invalid for partiality and inequality. “Tn all these cases the answer to the objection of partiality and inequality is, that the duty required is a duty upon the person in respect to the property which he holds, occupies and enjoys, under the protection and benefit of the laws; that it operates on each and all in their turns, as they become own- ers and occupiers of such estates, and it ceases to be required of them, when they cease to be such holders and occupiers of the estate, in respect to which the duty is required. In this respect it is like a land tax, or house tax, it does not bear upon all citizens alike, but it is not on that account unequal or par: tial, in the sense contemplated by the declaration of rights, requiring all taxes and burdens to be equal and impartial.” The following cases support the same view. Lowell v. Hadley, 8 Met., 180; Paxson o. Sweet, 13 N. Jy 196; Washington ». Nashville, 1 Swan, 177; Whyte ». Nashville, 2 id., 364; Franklin ». Mayberry, 6 Humph., 368; Bonsall ». Lebanon, 19 Ohio, 418; De. blois v. Barker, 4 R. I., 445; O'Leary v. Sloo, 7 La. An., 25; Hart ». Brooklyn, 36 Barb , 226: Buffalo City Cemetery Co., ». Buffalo, 46 N. Y., 503; Greens. burg v. Young, 53 Penn. St., 280; Hydes v. Joyes, 4 Bush, 464. And see Hud- ler v. Golden, 36 N. Y., 446: Woodbridge 9. Detroit,8 Mich., 274, 309, per Christiancy, J. The case of Ottowa v. Spencer, 40 Il1., 211, 217, is contra. In New Jersey, where it is held that the assessment for an improvement on the ad- joining land owners, must not exceed the actuad benefit conferred by such im. provement, it is also held that the whole expense of a sidewalk may be assessed upon the lot in front of which it is constructed, regardless of abso- lute benefits. Van Tassel v. Jersey City, 14 Am. L. Reg. (N. 8), 258. In Twycross 0. Fitchburg R. BR. Co., 10 Gray, 293, 295, a lessee’s covenant to pay “all taxes or duties,” levied or to be levied on the premises during the term, was held not to apply to an assessment for paving the sidewalk in front; that not being a tax or duty levied or to be levied on the premises demised. “It 18 a permanent improvement of the estate, the benefit of which is to be found in the increased value of the estate, and in the increased rent which it would permanently command.” Per Thomas, J. It is no objection to a sidewalk tax that a street is not graded. Parker o. Challiss, 9 Kans., 155; Challiss 2. CH. XIX.] | TAXES UNDER THE POWER OF POLICE. 401 true, that the levies for the purpose of constructing sewers and of keeping them in repair are commonly spoken of as taxes;! but, as has been justly remarked, there is as much reason to subject the owners of land abutting to contribution to their expenditure, as there is to oblige them to pave the footways in front of their grounds, or to keep the same in repair, when the city shall pave the streets adjoining. It should be a charge on the land, just as is the requisition on the owners of land abutting on the streets to clear away the snow at their own expense, which has been deter- mined to be a reasonable provision. It isa charge upon real estate thus situated, and requisite for the comfort and convenience of all the citizens. By this is not meant that the expense of sewers may not be borne by general tax, as indeed is often done: what is meant is only this, that the purpose to be accomplished is of that peculiar nature that the duty to provide for it seems intimately associated with the ownership of adjacent property, the value of which will be increased and the use facilitated by means thereof; and it is therefore within the competency of the 8 legislature to impose upon the owners of such property the duty to make provision for it. Levee assessments. Assessments for the construction of em bankments or levees, to protect from overflow and destruction Parker, 11 id., 384. Even when once graded, the grade may be changed at the discretion of the municipal authorities, without affording any legal ground for complaint to the parties affected. Pontiac ». Carter, Sup. Ct. Mich. (1875); 2 Am. L. Times, —; 12 Albany L. Jour., p. 88. Asa matter of construction, the following cases are important: In Williams ». Bruce, § Conn., 190, it was decided that the building of a railing on the inner side of a sidewalk could not be compelled under a general authority to require the sidewalk to be constructed. In Wright v. Briggs, 2 Hill, 77, it was held that authority to a village council to require adjoining owners to construct side. walks in front of their premises, would not warrant imposing upon them a tax for improving the street. A power in a municipal charter to “regulate and improve” sidewalks, does not authorize an assessment for their construc. tion. Fairfield v. Ratcliffe, 20 Iowa, 396. 1 See Philadelphia v. Tryon, 35 Penn. St., 401; Stroud v. Philadelphia, 61 id., 255; Boston v. Shaw, 1 Met., 180; Hildreth v. Lowell, 11 Gray, 345; Cone ». Hartford, 28 Conn., 863; State v. Jersey City, 29 N. J., 441. 2 Putnam, J., in Boston v. Shaw, 1 Met., 180, 188. In this case it is decided that the levy of a sewer rate by the value of estates is void, as it could not be equal or just. 26 402 LAW OF TAXATION. (CH. XIX. large tracts of country, are commonly levied on the owners of !ands bordering on or lying near the streams or bodies of water from which the danger is anticipated, and are generally looked upon as a species of local tax.! But if it should be im- posed as a duty upon residents or property owners in the neigh- borhood of such a danger, that they should turn out periodically, or in emergencies, and give personal attention and labor to the construction of the necessary defenses against overflow and inun. dation, it is not perceived that there could be any difficulty in supporting such a requirement as one of police, or of resting it upon the same grounds which sustain the regulations in cities, by which duties are ‘imposed on the occupants of buildings, to take certain precautions against fires, not for their own benefit exclu- sively, but for the protection of the public.” Drainage laws. Similar considerations apply in the case of drainage laws, which are enacted in order to relieve swamps, marshes and other low lands of the excessive waters which dctract from their value for occupation and cultivation, and perhaps render them worthless for use, and are likely at the same time to diffuse through the neighborhood a dangerous nuisance. If these may be drained at the expense of the owner, by special tax, there can be no doubt of the right of the state to make it his duty to drain them, asa matter of police regulation; the state coming forward to.perform the duty at his expense, in case of its not being suit- ably or expeditiously performed.® 1 Crowley o. Cropley, 2 La. An., 329. See Sessions ». Cronklinton, 20 Ohio, N.58., 349; Egyptian Levee Co. ». Hardin, 27 Mo., 495; Yeatman o. Crandall, 11 La. An., 220; Wallace v. Shelton, 14 id., 498; Bishop 0. Marks, 15 id., 147; Richardson ». Morgan, 16 id., 429; McGehee v. Mathis, 21 Ark., 40; Jones v. Boston, 104 Mass., 461. 2 It is said by Hlmer,J., in State v. Newark, 27 N. J., 185, 194, that “laws for the drainage and embanking of low grounds, and to provide for the expense for the mere benefit of the proprictors, without reference to the public good, are to be classed, not under the taxing, but the police power of the govern- ment; and so also the regulation of fences and party walls.” 3 In State o. City Council of Charleston, 12 Rich.,702, 733, the power to re- quire sewers, drains and sidewalks tu be constructed by the owners of the property adjacent, is plainly referred to the police power. “From a very early period sewers and pavements have constituted exceptional subjects in reference to assessments. Statutes of drains and sewers were known before CH. XIX.] TAXES UNDER THE POWER OF POLICE, 403 It is not to be doubted that other cases which may have not yet been the subject of judicial consideration, would fall withia the same reasons; but it might be presumptuous to.attempt an enumeration of them, especially as there can be little or no occa- sion for doing so, when the taxing power is commonly sufficient to meet all their requirements. A safer ground will be occupied in the consideration of those cases, so often the subject of judicial review, in which burdens in the shape of license fees have been imposed upon business, trades or occupations. License fees in general. License fees may be imposed: 1. For regulation. 2. Forrevenue. 38. To give. monopolies. 4. For prohibition. The third purpose is inadmissible in any free government, and has not avowedly been had in view at any time in this country, nor in England, since the period immediately pre- ceding the revolution of 1688, so fruitful of arbitrary exactions of every available nature’ The fourth purpose is entirely ad- missible in the case of pursuits or indulgencies which in their general effect are believed to be more harmful than beneficial to society, and which, consequently, the public interest requires should be put an end to. A case of this nature is that of heavy the time of Henry VIII, when the general statutes on the subject were enact- ed, and the mode of assessment prescribed. In like manner the act of 1764, provided for assessments for drains or sewers and sidewalks. Various reasons have been assigned for these exceptions. Among others, it has been plainly urged that, as a sanitary regulation, and under the power to abate nuisances, the corporatiou might require every citizen to drain his own lot, or in case of ‘neglect, exact & penalty; and so by the old act of 1698 (7 Stat. 12), every in- habitant of Charleston was required to mend and raise the sidewalk in front of his house in the manner and to the dimensions therein prescribed, on pen- alty of forfeiting for each house a penalty to be collected under the warrant of a justice of the peace. In order the better to carry into effect these objects, and to do what each individual might be required to do for himself, the act of 1764 authorized the commissioners of streets to construct drains and level and pave the footways, etc., and to assess the proprietors of lands and houses fronting on the street, etc.” Dunkin, Chancellor, p. 733. 1'Taxation for the benefit of individuals is compared to monopolies by Lowrie, Ch. J.,in Philadelphia Association, etc. v. Wood, 39 Penn. St., 67, 82. The very heavy license fees exacted from pawnbrokers in Dublin are said to owe their origin toa purpose to give a monopoly of the business to a few favored retainers of the court. Of course the weight of such fees rests finally on the persons whose necessities make them the pawnbroker’s customers. 404 LAW OF TAXATION. [CH. XIX. fees imposed on the keepers of implements of gaming." When, however, prohibition is the object, the end may generally be more directly accomplished by legislation which in its terms is prohibitory, than by the circuitous method of imposing a burden difficult or impossible to be borne; and the direct method is con- sequently the one usually adopted. But it is often found that the prohibition of an occupation which excites or gratifies the vices or passions of large numbers of people, is met by a resistance so steady and powerful as to render the law wholly ineffectual, when a heavy tax might lessen the evils and possibly in the end make the occupation unprofitable. Aldrich v. Aldrich, 8 Met., 102; Wilmarth v. Burt, 7 id., 257. The col- lector having a warrant from an authority of competent jurisdiction to issue it, cannot inquire into the precedent steps. Cunningham ». Mitchell, 67 Penn, St. 78. He may even officially receive voluntary payments where his au- thority is defective. State v. Woodside, 8 Ired., 104; Same v. Same, 9 id., 496; Johnson v. Goodridge, 15 Me., 29; Orono v. Wedgewood, 44 id., 49: Trescott o. Moan, 50 id., 347; Sandwich o. Fish, 2 Gray, 298; Cheshire v. Howland, 18 id., 821; Williamstown ». Willis, 15 id. 427. Compare Waters ». State, 1 Gill, 302; O'Neal v. School Commissioners, 27 Md., 227; Commonwealth 2. 36 562 LAW OF TAXATION. [CH. XXIV It is not easy to lay down any general rule as to what will constitute a defect in the process which should put the collector on his guard. Where the law required the assessment roll to be attached to the warrant, and the certificate attached thereto was not in accordance with the law, it was held, that the warrant could not be said to be fair on its face, and the collector was liable for executing it! The same ruling was made where the warrant showed on its face that a certain tax included in it could not lawfully have been placed in the list for that year.” And so where the affidavit which was required to be attached to the roll after the time for reviewing the assessments had expired, appeared to be made prematurely. So where the warrant was issued by a justice of the peace, where, by law, it should have been issued by the supervisors. But mere clerical errors may be overlooked in any case.® Philadelphia, 27 Penn. St., 497; Moore o. Alleghany City, 18 id. 55. If the collector’s warrant was sufficient when property is seized under it, a subse- quent alteration, by the magistrate who signed it, for the purpose of making it a warrant for another tax, will not invalidate the collector’s action. Good- win o. Perkins, 39 Vt., 598. 1Van Rensselaer 0. Witbeck, 7 N. Y., 517. 2Eames v. Johnson, 4 Allen, 882. So the collector was held liable in col- lecting a personal tax from a bavk which, by law, was taxable on its realty only. American Bank v. Mumford, 4 R. I., 478. Compare National Bank of Chemung 2. Elmira, 53 N. Y., 49, and cases cited. That, however, was a suit against the town after the money had been paid over. 3 Westfall 7. Preston, 49 N. Y., 849. See, also, National Bank of Chemung v. Elmira, 53 id., 49; Gale o. Mead, 4 Hill, 109. ¢Chalker v. Ives, 55 Penn. St., 81. And see Hilbish vo. Hower, 58 id., 93. 5 Process issued to one as “constable and collector” will be sufficient, if in fact he was authorized to act as collector when it was issued to him. Hays ov. Drake, 6 Gray, 387. And a collector is not a trespasser in seizing properly by virtue of two warrants, if either of them is sufficient. Id. A warrant at- tached to a tax list, and signed by the supervisors, was held to be fair on its face, though they failed to add the official title to their names. Sheldon 2». Van Buskirk, 2 N. Y., 473. A warrant issued in pursuance of law for the collection of a tax from one who has removed from the township, is sufficient, though it fails to recite the fact of removal. Cheever v. Merritt, 5 Allen, 568. And see Sherman v. Torrey, 99 Mass., 472; Hubbard ». Garfield, 102 id., 72. So it will protect the officer where the only defect is a failure to insert the direction to sell distrained goods within seven days, according to law. King e. Whitcomb, 1 Met., 828. And for other cases, where questions of validity CH. XXIv.] REMEDIES FOR ILLEGAL TAXATION. 563 But though a valid process will protect an officer against per- sonal responsibility, it will not enable him to build up a title to property seized by virtue of it, either general or special. While, therefore, he might have a perfect defense to a suit brought against him in trespass, for seizing property, he might not success- fully defend an action of replevin, or any other action in which the legal title to the property, or the legal right to possession, was the question at issue. In any such action it would not be suffi- cient for him that the process under which he acted appeared te be valid on its face, but it should be valid in fact! This is an important distinction, which is sometimes overlooked. It has been decided that if taxes are collected by color of law, and actually paid over by the collector according to the command of his warrant, that officer is not liable for the amount at the suit of the tax payer, though it turn out that the authority under which he acted was void for unconstitutionality or other reason.? This seerns but reasonable, since the tax payer still has his remedy, as will be seen further on. If the collector levies distress for a tax and afterwards abuses his authority, the warrant becomes no protection to him, and he is held to be a trespasser ab ¢nitio. This rule has been applied in one case where the collector sold the property at half its value within two hours after seizure, and without giving public notice of the time and place of sale.® It has been applied also where the collector, after a sale on which he had received a surplus, failed to render to the owner an account in writing of the sale and charges, as required by the statute under which the sale was made.’ of process have been raised, see Mussey v. White, 3 Me., 290; Bachelder 2. Thompson, 41 Me., 589; Stephens v. Wilkins, 6 Penn. St., 260; Bank of Che- nango v. Brown, 26 N. Y., 467; Barnard v. Graves, 18 Met., 85. And see ante, pp 304, 305. 1 Earl v. Camp, 16 Wend., 562; Beach v. Botsford, 2 Doug. (Mich.), 199; Le Roy v. East Saginaw, 18 Mich., 233. 2 Dickens v. Jones, 6 Yerg., 483; Crutchfield v. Wood, 16 Ala., 702; Lewis County v. Tate, 10 Mo., 650. In Wood ». Stirman, 37 Texas, 584, however, it was decided that where a county treasurer collects taxes without authority of Jaw; he alone is liable, and not his sureties or the county, though the money may have been actually paid in to the county treasury, and disbursed as other county funds. 3 Blake v. Johnson, 1 N. H., 91. #Blunchard 0. Dow, 32 Me., 557. 564 LAW OF TAXATION, [CH. XXIV. And thecollector is liable as a trespasser ab initio, if he keeps the distress until after the time limited by law for making sale, and then sells it;! or if, having sold enough to satisfy the tax, he proceeds to sell more.” The rules which have been given apply to collectors under the internal revenue laws of the United States, who are protected in like manner in the collection of taxes committed to them by lists fair on their face.? The case of the collector of customs duties is 1 Pierce v. Benjamin, 14 Pick., 356, 360, citing Purrington ». Loring, 7 Mass., 888; Nelson v. Merriam, 4 Pick., 249. See to the same effect Brackett 0. Vin- ing, 49 Me., 356; contra, Ordway ». Ferrin, 3 N. H., 69. Where a collector of taxes, after seizing property as a distress and advertising it for sale, neglectea to sell it at the time appointed, but afterwards again advertised it the requisite period, and sold it upon such new advertisement: Held, that neither the neg- lect to sell at the appointed time, nor the subsequent sale, could make him a trespasser ab initio. Souhegan Nail, etc., Factory vo. McConike, 7 N. H.,, 309. ° Williamson v. Dow, 32 Me., 559. But in such a case he is trespasser only as to the excess. Leckins v. Goodale, 61 Me., 400; 8. C., 14 Am. Rep., 568. Compare Polk v. Rose, 25 Md., 153. If an officer under two rate bills, one valid and the other invalid, seizes no more property than he is authorized to by virtue of the valid process, and sells the same for more than enough to sat- isfy the valid process, and then appropriates the excess to satisfy the invalid process, such misapplication does not render the officer a trespasser ab tnitio. To make him a trespasser ab ¢nitio, the wrongful act must be done to the property taken, not to the fund realized from a legal sale. Wilson v. Seavey, 38 Vt., 221, 230. For the law as to what will render one atrespasser ab inztzo, sce the Six Carpenters’ Case, 8 Coke, 290; 8. C., 1 Smith’s Leading Cases, 162 and notes; Van Brundt »v. Schenck, 11 Johns., 377; 8. C., 18 Johns., 418. If one whose property is unlawfully seized and sold by the collector causes it to be bid in for himself and appropriates it to his own use, he can recover in an action against the collector only what he paid for the property on the sale; as that was the extent of his injury. Hurlburt v. Green, 41 Vt., 490. 3 Erskine v. Hohnbach, 14 Wall., 613, 616. In this case Mr. Justice Field states the rule of protection very clearly and concisely as follows: ‘“ Whatever may have been the conflict at one time in the adjudged cases, as to the extent of protection afforded to ministerial officers, acting in obedience to process or orders issued to them by tribunals or officers invested by law with authority to pass upon and determine particular facts, and render judgment thereon, it is well settled now that if the officer or tribunal possess jurisdiction over the subject matter upon which judgment is passed, with power to issue an order or process for the enforcement of such judgment, and the order issued thereon to the ministerial officer is regular on its face, showing no de- parture from the law, or defect of jurisdiction over the person or property affected, then, and in such case, the order or process will give full and entire CH. XXIV.] REMEDIES FOR ILLEGAL TAXATION, 565 different. He has no tax warrant or other process to protect him, and he proceeds at his peril in demanding and receiving what he claims to be demandable as duties. If he collects ille- gal or excessive duties, and they are paid under protest, he is liable to the party paying for the amount;! but he is excused if he pays over the moneys before protest is made.* Liability of town, county, etc. The town, village, city or county for which a tax has been levied and collected, may also, under some circumstances, be liable to an action at the suit of parties from whom the tax has been exacted. The authorities warrant us in specifying the following as the conditions on which any such action may be maintained : 1. The tax must have been illegal and void, and not merely irregular. 2. It must have been paid under compulsion or the legal equiv- alent. 8. It must have been paid over by the collecting officer, and have been received to the use of the municipality. And to these should perhaps be added : 4. The party must not have elected to proceed in any remedy he may have had against the assessor or collector.® For a merely irregular assessment, it has already been stated in several places, the remedy of the party is that which the statute may give him. Irregularities do not make a tax void, nor com- monly do they attach to it any circumstance of inequality or injus- protection to the ministerial officer in its regular enforcement against any prosecution which the party aggrieved thereby may institute against him, although serious errors may have been committed by the officer or tribunal in reaching the conclusion or judgment upon which the order or process is issued: citing Savacool v. Boughton, 5 Wend., 170; Earl v. Camp, 16 Wend., 563; Chegaray 2. Jenkins, 5 N. Y., 376; Sprague v. Burchard, 1 Wis., 457. To the same effect is Haffin v. Mason, 15 Wall., 671. And see Cutting v. Gilbert, 5 Blatch., 259; Nelson v. Carman, id., 511; Braun v. Sauerwein, 10 Wall., 218; The Collector v. Hubbard, 12 id., 1; Coblens v. Abel, 1 Woolw., 293. 1 Elliott v. Swartwout, 10 Pet., 187; Maxwell v. Griswold, 10 How., 242. 2 Elliott o. Swartwout, 10 Pet., 187. 3In Ware v. Percival, 61 Me., 391, the person illegally assessed sued the town and recovered satisfaction. Afterwards he sued the assessors, but his first revovery and satisfaction were held conclusive. See same case, 14 Am. Rep., 565. 566 LAW OF TAXATION. [CH. XXIV tice. When a municipal corporation is sued for money collected and paid over to it as a tax, the idea on which the suit is predi- cated is, that the corporation has received that which, in justice, it ought not to retain. But the merely irregular action of the officers in their proceedings in assessing and levying the tax do not show injustice; there must be something further in the case which either exempts the party from the tax altogether, or which, because of illegality or inequality, deprived the officers of juris- diction. Municipalities do not guaranty to their people correct action on the part of their officers, and if they did, no one would be entitled to rely upon the guaranty until he was injured. Ir- regular action does not necessarily injure the parties concerned; and where it does, the remedies given by review or appeal are supposed to afford full redress. Any further remedy must pro- ceed upon the idea that the tax is void; a mere nullity.’ Thata tax voluntarily paid cannot be recovered back, has been held by the authorities with very few exceptions.? It is immaterial in such a case that the tax has been illegally laid, or even that the law under which it was laid was unconstitutional.® ' Wright v. Boston, 9 Cush., 233, 241, per Shaw, Ch. J , citing Preston v. Bos. ton, 12 Pick., 7; Boston, etc., Glass Co. ». Boston, 4 Met., 181; Howe ». Boston, % Cush., 273; Lincoln v. Worcester, 8 id.,55; approved in Rogers v. Green- bush, 58 Me., 390. If an illegal state tax is collected and paid over, the state becomes trustee of the moneys for the persons paying it, and their remedy is to ask the law-making power to make the proper appropriation. Shoemaker v. Grant County, 36 Ind., 175. If the state has any auditing board competent to allow such claims, their power might be adequate to the case. When the town collector collects a state, county and town tax levied on property not taxable, if the town is sued, the recovery will be limited to what was paid over to it for its own use, and will not embrace the state and county taxes. Ver- mont Central R. R. Co. v. Burlington, 28 Vt., 198. See, also, Spear ». Brain- tree, 24 id. 414; Slack v. Norwich, 32 id., 818; Matheson v. Mazomanie, 20 Wis., 191. *Smith vo. Readfield, 27 Me., 145; New York, etc., R. R. Co. v. Marsh, 12 N. Y., 308; Walker ». St. Louis, 15 Mo., 568; Christy’s Administrators o. St. Louis, 20 id., 148; Hospital ». Philadelphia County, 24 Penn. St., 229; Phillips v. Jefferson County, 5 Kans., 412; Wabaunsee County v. Walker, 8 id., 431; Corkle v. Maxwell, 3 Blatch., 418; Elliott-o. Swartwout, 10 Pet., 137. 3 Taylor o. Board of Health, 31 Penn. St.,73; Barrett 0. Cambridge, 10 Allen, 48. And see Forbes». Appleton, 5 Cush., 115. Money paid to secure a license, issued on the petition of the party, is voluntarily paid, and cannot be recovered back, even though no power existed to require it. Mays v. Cincinnati, 1 Ohio, CH. XXIV.] REMEDIES FOR ILLEGAL TAXATION. 567 The principle is an ancient one in the common law, and is of general application. Every man is supposed to know the law; and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as the reason why the state should furnish him with legal remedies to recover it back. Especially is this the case when the officer receiving the money, who is chargeable with no more knowledge of the law than the party making payment, is not puton his guard by any warning or protest, and the money is paid over to the use of the public in apparent acquiescence in the justice of the exaction. Mistake of fact there cannot well be in such a case; as the illegalities which render such a demand a nullity must appear from the records, and the taxpayer is just as much bound to inform himself what the records show or do not show, as are the public authorities. The rule of law isa rule of public policy also; it isarule of quiet as well as of good faith, and precludes the courts being oecupied in undoing the arrange- ments of parties which they have voluntarily made, and into which they have not been drawn by fraud or accident, or by any excusable ignorance of their legal rights and liabilities." N. S., 268, citing Brisbane v. Dacres, 5 Taunt., 148; Elliott 0. Swartwout, 10 Pet., 150; Clark v. Dutcher, 9 Cow., 674; Robinson v. Charleston, 4 Rich., 317; Smith v. Readfield, 27 Me., 145. To the same effect is Ligonier v. Ackerman, 46 Ind., 552. In California it is held that a tax imposed by city ordinance, without authority of law, may be recovered back, even though paid without protest. Galveston v. Snyder, 39 Texas. 236, citing Marshall v. Snediker, 25 id., 460; Baker 0. Panola County, 30 id., 86. 1 Parties who have acquiesced in a tax for eleven years, held to have yielded forever their right to question the law which imposed it. Commonwealth o. Philadelphia, 27 Penn. St. 497. In Kentucky it has been held that where a party pays taxes illegally assessed without knowledge of the illegality, he may recover back, though he made no protest. Underwood ». Brockman, 4 Dana, 309; Ray ». Bank of Kentucky, 3 B. Monr., 510; Louisville ». Zanone, 1 Met. (Ky.), 151; Covington v. Powell, 2 id., 226. But in Iowa it has been held that a tax, paid under ignorance that the law under which it was levied was invalid, could not on that ground be recovered back. Kraft 7. Keokuk, 14 Juwa, 86; Espy v. Fort Madison, id., 226. And see Lester v. Baltimore, 29 Md., 415. A competent authority, having jurisdiction, assessed the plaintiffs for personal property. They complained, and appealed to the courts. Be- fore the court of appeals rendered a final decision, the officer having charge of the collection of taxes*gave notice to the plaintiffs, requiring payment, and stating that if the tax was not paid, a warrant would issue to collect the same 568 LAW OF TAXATION. [CH. XXIV. All payments of taxes are supposed to be voluntary which are not made under protest or under the apparent compulsion of legal process! When a protest is relied upon, nothing very formal is requisite; ‘taxes illegally assessed may always be recovered back, if the collector understands from the payer that the tax is regarded as illegal, and that suit will be instituted to compel the refunding.”? A payment made to release goods from seizure is a payment on compulsion,? and so is payment after threat of distress of Thereupon the plaintiffs paid the tax. There being no warrant, seizure, or threatened seizure, payment of money to free the property from the posscs- sion of another, or ignorance of facts, it was Held, that it was a purely volun- tary payment, and no action would lie to recover back the same. Union Bank ». New York, 51 Barb., 159. ' Where a town offers a discount to those who make payment promptly, a payment made to obtain this discount has been held to be voluntary, though made under protest. Lee v. Templeton, 13 Gray, 476. In Connecticut it has been decided that if one’s land is sold for a tax after protest, and he buys it in, this purchase must be regarded as a voluntary payment, and will give him no right of action. Sheldon o. School District, 24 Conn., 88. In Taylor v. Board of Health, 31 Penn. St., 73, taxes levied under an unconstitutional law had been demanded and paid for a series of years, and the law being then held void, suit was brought to recover back. The taxes were in the shape of head money on immigrants, and were collected of consignees of ships, with- out process. Lowrie, J.: “If the matter complained of here was a wrong, then the state did it in the only way a state can do a wrong— hy its public func- tionaries. The suit is not against the state, and could not be; but it is against the executive officer of the state; for in this matter the board of health was nothing else. A state imposes certain taxes, and orders a certain officer to collect them and apply them in a certain way, and if he does so, how can the state compel him to refund them to the taxpayer? Will it be said that in this case the order was void, and therefore the officer acted on his own authority and at his own risk? The plaintiff cannot well say that, seeing that he paid voluntarily, and without attempting to deny the duty or to warn the officer that he must proceed at his own risk. Had he given such warning, the va- lidity of the tax would have been tested by the superior officers of the col- lector. He paid without dispute, and thus assented to the collection of the tax for public purposes, and of course, to the application of it; and he has no shadow of equity against the collecting functionary.” In Busby v. No- land, 89 Ind., 234, it is said that one who pays without protest is estopped from disputing the legality of the tax. ® Chase, Ch. J., in Erskine v. Van Arsdale, 15 Wall., 75, 77. 3 Briggs v. Lewiston, 29 Me., 472. But it was held in this case that the costa yaid were not recovcrable back. And see Dow ». Sudbury, 5 Met., 73; Shaw CH. XXIV.] REMEDIES FOR ILLEGAL TAXATION. 569 goods ;* and much more would be the satisfaction of the demand by actual sale of goods distrained ;? and it seems that if the officer calls upon the person taxed, and “ demands a sum of money under a war- rant directing him to enforce it, the party of whom he demands it may fairly assume that if he seeks to act under the warrant at all, he will make it effectual. The demand itself is equivalent to a service of the writ on the person. Any payment is to be regard- ed as involuntary, which is made under a claim involving the use of force as an alternative; as the party of whom it is demanded cannot be compelled or expected to await actual force, and can- not be held to expect that an officer will desist after making a de- mand. The exhibition of a warrant directing forcible proceed- ings, and the receipt of money thereon, will be in such case equiv- alent to actual compulsion.” § The proper action against a corporation, in these cases, is as- sumpsit for money had and received; the liability not attaching v. Becket, 7 Cush., 442; though if the suit were brought against the officers in a proper case, it would be otherwise. Shaw v. Becket, supra. 'Grim v. School District, 57 Penn. St., 483, citing Henry ». Horstick, 9 Watts, 414; Caldwell v. Moore, 11 Penn. St., 60; Allentown ». Saeger, 20 id, 421. And see Guy ». Washburn, 23 Cal., 111. A payment is not voluntary where the payer lays down money, but forbids the collector to take it. Bel- linger v. Gray, 51 N. Y., 610. And see Greenabaum ». King, 4 Kans., 332. 2 Hurley ov. Texas, 20 Wis., 634. 3 Campbell, J., in Atwell v. Zeluff, 26 Mich., 118, citing Boston, etc., Glass Co. v. Boston, 4 Met., 181. And see Amesbury, etc., Manuf’g Co. ». Amesbury, 17 Mass., 461; Preston v. Boston, 12 Pick., 7; George v. School District, 6 Met., 497; Joyner v. School District, 3 Cush., 567; Lincoln v. Worcester, 8 id., 55. Upon the right to maintain this action in general, see Henry v. Chester, 15 Vt., 460; Allen ». Burlington, 45 id., 202; Richards ». Stogsdell, 21 Ind., 74; Hubbard v. Brainard, 35 Conn., 563; Goddard ». Seymour, 30 Conn., 394; Cal- laway v. Milledgeville, 48 Geo., 309; Wilkey o. Pekin, 19 Ill., 160; Allentown v. Saeger 20 Penn. St., 421. The question what constitutes a voluntary pay- ment was quite fully discussed, and the English authorities cited in Baker ». Cinncinnati, 11 Ohio, N. S., 534, and Taylor o. Board of Health, 31 Peun St., 73. The latter case quotes particularly Fullan 7. Down, 6 Esp., 26; Valpy v. Man- ly, 1 C. B., 594; Parker 0. G. W. Railway Co., 7 M. & G., 253; Morgan ». Pal- mer, 2B. & C., 729. In Carleton v. Ashburnham, 102 Mass., 348, the maxim that where two acts are done at the same time, the one shall take effect first which ought in strictness to have been done first, in crder to give it effect (Claflin ». Thayer, 18 Gray, 459), was applied to a simultaneous payment of tax and delivery of a protest against its exaction. 570 LAW OF TAXATION. [CH. XXIV. until the money is paid over, and being then based upon the re- ceipt of the money, and not upon the illegalities which preceded it... The recovery will of course be limited to the money received ; while in an action of trespass against the assessors, or trespass or trover against the collector, the party might recover such actual damages as he could show he had sustained.? It is possible that in the case of municipal corporations existing under special char- ters, the rule may be different. If such corporations, in the exer- cise of their legislative power, order the collection of an illegal tax, and process is issued to their officers for its collection, such officers may well be regarded as the agents of the corporation in the execution of the process, and the corporation held liable in 1A town is not hable for any mistake or misfeasance of the assessors or col- lector by means whereof one bas been compelled to pay a tax wrongfully lev- ied, the money not having been paid into the treasury of the town. These of- ficers are not, in a legal sense, the agents of the town in its corporate capacity, in performing duties under the tax laws. Lorillard of Monroe, 12 Barb., 161, and 11 N. Y., 372. And see People v. Supervisors of Chenango, 11 N. Y., 563; Preston v. Boston, 12 Pick., 7; Chapman »v. Brooklyn, 40 N. Y., 372; Newman v. Supervisors of Livingston, 45 N. Y., 676. When one is illegally assessed a tax afterwards abated, and is arrested by the collector, the payment by the town to the collector of the cost of the arrest is not such a ratification of the act as to render the town liable. Perley v. Georgetown, 7 Gray, 464. Ina suit against a town to recover back an illegal tax, the town cannot defend by showing that the assessors were not legally elected. Sudbury v. Heard, 103 Mass., 548. On the other hand, it is no ground for recovering back a tax, that it was collected by one who was not collector de jure where he was such de facto. Williams »v. School District, 21 Pick., 75. Where a tax has been col- lected and paid over to a city, and is afterwards set aside, suit will lie against the city to recover it back, even though the assessors were not appointed or controlled by the corporation. Bank of Commonwealth v. New York, 43 N. Y., 184. See also Chapman »v. Brooklyn, 40 id., 872; Newman ». Supervisors of Livingston, 45 id., 676: compare Swift v. Poughkeepsie, 87 id., 511. If the tax is charged to the collector in a general settlement with him, this is equiv- alent to a payment into the treasury. County Commissioners ». Parker, 7 Minn., 267; Slack v. Norwich, 32 Vt., 819; Babcock ». Granville, 44 id., 325. ? Dow v. Sudbury, 5 Met., 73; Shaw v. Becket, 7 Cush., 442. And see Inglee v. Bosworth, 5 Pick., 498, per Morton, J.; Ware v. Percival, 61 Me., 391, per Appleton, Ch. J. If the proceedings in the collection of a tax are wholly void, and the person taxed neither has been nor can be disturbed in his possession, there is no ground for an action against the town, as the plaintiff has lost nothing. Such would be the case of a void sale of shares in a corporation. Noyes v. Haverhill, 11 Cush., 388. CH. XXIv.] REMEDIES FOR ILLEGAL TAXATION. 571 tort if the officer resorts to compulsory measures for its enforce- ment. A demand is not necessary before bringing suit to recover back illegal taxes.? Interest is recoverable from the date of demand, but not before? Jf only a part of the tax was illegal, the recov- ery will be limited to that part, if capable of being distinguished.* ' Howell v. Buffalo, 15 N. Y., 512. See Conrad ». Ithaca, 16 id., 158; West v. Brockport, id., 116, note; Bennett . Buffalo, 17 id., 883; Sheldon ». Kalamazoo 24 Mich., 383. ° Look ». Industry, 51 Me., 875. Sce Pierce v. Benjamin, 14 Pick., 356. * Boston, etc., Glass Co. ». Bostgn, 4 Met. 181. See Atwell ». Zeluff, 26 Mich., 118, 120. ‘Torrey v. Millbury, 21 Pick., 64. See this case commented on in Lincoln ». Worcester, 8 Cush., 55. Whether cost of the proceedings to collect the tax can be recovered from the town, see Briggs v. Lewiston, 29 Me., 472; Dow ». Sudbury, 5 Met., 73; Shaw o. Becket, 7 Cush., 442. The following illustra. tions of illegal taxes recovered back may be cited: One who pays a person- al and poll tax in a town of which he is not a resident may recover it back, if paid under the threat of a warrant, notwithstanding he was properly taxed for real estate in that town. This would not be regarded as a case of exces- sive taxation from which the party should appeal; the tax on the personalty and poll being wholly unauthorized. Preston v. Boston, 12 Pick.,7. Fur- ther, as to the recovery of a town, etc., by nonresidents unlawfully taxed with- in it, see Hathaway v. Addison, 48 Me., 440; Sumner v. Dorchester, 4 Pick., 861; Inglee ». Bosworth, 5 id., 498; Dow v. Sudbury, 5 Met., 73; Lee »v. Bos- ton, 2 Gray, 484; Dickinson ». Billings, 4 id., 42; People v. Supervisors of Chenango, 11 N. Y., 563. It has been held that if school taxes are levied un- lawfully in a district by vote of the town, they may be recovered back of the town. Powers v. Sanford, 39 Me., 183. If a nonresident is taxed on person- alty in a town where he does not reside, his right to recover it back cannot be affected by the fact of his having real estate in the town which was omit ted from the list. Hathaway v. Addison, 48 Me., 440. Where an inhabitant is wrongfully taxed on property held in trust for him abroad, and has no property taxable to him, he may recover back of the town a tax assessed to and paid by him in respect of the property so held intrust. Dorr v. Boston, 6 Gray, 181, relying upon Preston v. Boston, 12 Pick.,7. When by law the personal estate of corporations is assessed in the shares of the company, but the assessors tax to the corporation both their personal and real estate, and they pay the taxes, they may recover back the tax on the personalty. Dunnel Manuf. Co. ». Pawtucket, 7 Gray, 277. For further cases, see Perry v. Dover, 12 Pick., 206; Joyner v. School District, 3 Cush., 567; Huckins v. Boston, 4 Cush., 543; Bacon v. School District, 97 Mass., 421; Mathewson v. Mazomanie, 20 Wis., 191; Hurley v. Texas, id., 634; James ». New Orleans, 19 La. An., 109; Hill . Supervisors of Livingston, 12 N. Y., 52; Atwater ». Woodbridge, 6 Conn., 228; Adam ». Litchfield, 10 id., 127; Gillette 0. Hartford, 31 id. 8513. 572 LAW OF TAXATION. [CH. XXIV. A municipal corporation or body, for whose benefit taxes are en- forced, does not warrant to the purchaser the title to property sold for their satisfaction, or the legality of the proceedings on which the sale was based. The purchaser in such a case buys at his own risk, and at his peril investigates the proceedings. This is a general rule in tax sales.! A misapplication by a corporation, actual or threatened, of moneys collected by taxation, will give no right of action to an individual to recover his proportion of the tax. The money, when collected and paid to the corporation, belongs to it, and not to those from whom it has been cpllected. For misapplication there may be remedies on behalf of the public, and perhaps indi- vidual taxpayers may enjoin it; but a suit to recover the moneys must be based upon an individual right to it, which could not exist in the case.” Remedy by replevin. In some cases, one whose goods have been seized for the satisfaction of a tax may recover them by writ of replevin. But to justify this process the tax must be ab- solutely void, and not merely unjust, excessive or irregular. The case must consequently be brought within the rules already laid down, regarding the invalidity of tax levies, or the suit in replev- in must fail- The liability of this process to vexatious use is so considerable, that it has been deemed proper in some of the states, on grounds of public policy, to provide that replevin shall not lie for property distrained for taxes. Taking away this retnedy would still leave to the party all the other remedies which are applicable to the case; and he may therefore still contest the Nicodemus ». East Saginaw, 25 Mich., 456; Supervisors of Stephenson ». Manny, 56 IIl., 160; Lauman v. Des Moines County, 29 Iowa, 310; Allen o. Burlington, 45 Vt., 202; Judd v. Fox Lake, 28 Wis., 583; First Ecclesiastical Society 0. Hartford, 38 Conn., 274; Foster ». County Commissioners, 7 Minn., 140. 1 Lynde v. Melrose, 10 Allen, 49; Packard 7. New Limerick, 34 Me., 266. In Vermont, it is otherwise by statute. See Saulters v. Victory, 85 Vt., 361. ? Withrington ». Harvard, 8 Cush., 66; Moore ». School Directors, 59 Penn. St., 232; Wright o. Dunham, 18 Mich., 414. A tax on corporate dividends cannot be disputed b., creditors of the corporation on the ground of its hav- ing been declared when the corporation was insolvent. Pennsylvania Bank Assignees’ Account, 89 Penn. St., 108. CH. XXIv.] REMEDIES FOR ILLEGAL TAXATION, 573 validity of the tax in a suit to recover the money after it has been paid, or in an action to recover the value of his goods, if the tax was collected by distress and sale! And it has been held that a statute taking away the remedy by replevin is not to be held ap- plicable to a third person whose goods are seized for a tax for which he is no way liable;? nor to one who was not liable to be assessed for taxation.® Where replevin is allowed, it cannot be maintained by the party taxed unless the whole tax is illegal; as it must assume that the seizure of the goods is without warrant of law.! Estoppel. Under some circumstances, a party whois illegally assessed may be held to have waived all right toa remedy by a course of conduct which renders it unjust and inequitable to oth- ers that he should be allowed to complain of the illegality. Such a case would exist if one should ask for and encourage the levy of the tax of which he subsequently complains; and some of the cases referred to in the note go far in the direction of holding, that a mere failure to give notice of objections toone who, with the knowledge. of the person taxed, as contractor or otherwise, is expending “money in reliance upon payment from the taxes, may have the same effect.® But the duty to speak 1 Dudley »v. Ross, 27 Wis., 679; Macklot v. Davenport, 17 Iowa, 379. 2 Traverse v. Inslee, 19 Mich., 98. Compare Atlantic, ete, R. R. Co., v. Cleino, 2 Dillon, 175; Cardinel ». Smith, Deady, 197. 38tockwell v. Vietch, 15 Ab. Pr., 412. See Ross v. Hast Saginaw, 18 Mich., 233. Asto such statutes in general, see O’Reiley v. Good, 42 Barb., 521; Mc- Claughry », Cratzenburgh, 39 Ill., 117; Mt. Carbon, etc., R. R. Co., 0. Andrews, 58 id., 176; Yancey v. New Manchester, etc., Manuf. Co., 33 Geo., 622; Cady ». Lennard, 45 id., 85. Where mere irregularities are complained of, replevin will not be the appropriate remedy. Buell v. Ball, 20 Iowa, 282; Bilbo ». Henderson, 21 id., 56, and cases cited. 4Brackett o. Whidden, 3 N. H., 17; Emerick ». Sloan, 18 Iowa, 139. 5 Weber v. San Francisco, 1 Cal., 455; Kellogg o. Ely, 15 Ohio, N. 8., 64; Tash v. Adams, 10 Cush., 252; Motz v. Detroit, 18 Mich., 495; Warner 2. Grand Haven, 30 id., 24; Peoria o. Kidder, 26 Ill., 351; Sleeper v. Bullen, 6 Kans., 300; Pease v. Whitney, 8 Mass., 93; La Fayette ». Fowler, 34 Ind., 140. In In- diana it is held that one who has seen a public improvement go on without objection, until it is accepted ‘as completed by the city, cannot afterwards en- join the collection of the assessment on the ground that the work was not done according to contract. Evansville v. Pfisterer, 34 Ind., 36. Or that the whole proceeding was invalid. La Fayette v. Fowler, 34 Ind., 140, citing Hel- 574 LAW OF TAXATION. [CH. XXIV. ought to be very imperative to make mere silence operate as an estoppel. Remedy by mandamus. A summary remedy by the writ of mandamus may be had by parties illegally assessed in a few cases, which are more particularly referred to in another chapter.* They embrace cases in which the property or subject taxed is not taxa- ble by law, and the remedy is given by compelling the proper officer to strike off the assessment or to discharge the tax.? But an excessive assessment is not to be corrected by means of the writ, it not lying to correct mere errors of judgment in the exer- cise of judicial or discretionary powers.‘ Remedy by prohibition. The common law writ of prohibi- tion lies to keep inferior courts within their jurisdiction, and is inapplicable to tax cases, except, perhaps, under very peculiar statutes. A statutory remedy has been given in some states under this name.® Quo warranto. This is the process by means of which usur- pations of corporate franchises may be inquired into. It may doubtless be made available on behalf of the state in some cases where powers of taxation are unlawfully claimed, but is not adapted to the redress of individual wrongs under the revenue lenkamp v. La Fayette, 30 id., 192; Palmer v. Strumph, 29 id., 829. And see Sleeper v. Bullen, 6 Kans., 300. One contesting a drainage proceeding, but ad- mitting before the supervisors that the land is swamp and overflowed is es- topped from disputing that fact on certzorart. Hagar v. Supervisors of Yolo, 47 Cal., 222. ' Where city property is assessed by city officers and sold as individual property, this does not estop the city from setting up its title. St. Louis 2. Gorman, 29 Mo., 593. Taxing lots as private property whose boundaries in- clude part of what is actually used as a street does not estop the city from claiming itas a street. Ellsworth v. Grand Rapids, 27 Mich., 250. * Chapter XXIII. +See People v. Barton, 44 Barb., 148; People o. Olmstead, 45 id., 644; Peo. ple ». Supervisors of Otsego, 51 N. Y., 401; People v. Auditor General, 9 Mich., 134. 1 Howland », Eldridge, 43 N. Y., 457; School Directors v. Anderson, 45 Penn. St., 388; Gibbs 7. Hampden Co. Commissioners, 19 Pick., 298; Miltenberger v. St. Louis County Court, 50 Mo., 172. 5See People v. Supervisors of Queens, 1 Hill, 195; Talbot ». Dent, 9 B, Monr., 526; State » Gary, 33 Wis., 93. CH. XxIv.] REMEDIES FOR ILLEGAL TAXATION. 575 laws. It has been held not to be the proper process to correct corporate action, where a city, instead of establishing remunerative water rates to pay the interest and part of the principal of the water loan — which it was claimed was its duty to do annually — established nominal rates only, and levied a tax on the city at large to pay the debt and interest. Conclusion. It will be apparent from what has appeared in this chapter, that many serious errors may be committed and many wrongs done in the exercise of the power to tax, which the parties wronged must submit to, because the law can afford them no redress whatever. All injuries which result from an exercise of political or legislative authority are to be included in this cat- egory; and these are often the most serious which, in matters of taxation, the people are ee ee In all such cases, the au- thority of the judiciary is confined to an inquiry into the jurisdic- tional question, and if it appears that the political or legislative body has kept within the limits of its authority, the judiciary must pause there, and admit its incompetency to inquire into wrongs which, within those limits, may have been committed. The wrongs which spring from errors on the part of assessors are, in a large proportion of all the cases, as little susceptible of correction, unless the legislature shall have provided a remedy by statute. Courts of equity have but a limited jurisdiction, extending to few cases besides those in which the impelling motive on the part of the assessors has been to do injustice and inflict injury. The chief protection of the citizen must at last be sought in the intelligence and integrity of public officers, and where these fail, as too often they do, the injury must frequently prove irreparable. 1 Attorney General »v. Salem, 103 Mass., 138. Neither is a bill in equity the proper remedy for such a case. Carlton v. Salem, 103 Mass., 141. INDEX. ABANDONMENT— of seated lands, what is, 276. ABATEMENT— right to apply for sometimes taken away if property not listed, 262-264. of one tax cannot be made by levying another, 90, 91. cannot be compelled by mandamus, 518. , is the appropriate remedy in cases of unequal taxation, 527. can only be had as the statute provides, 528. cannot be had in equity, 528. party failing to apply for is generally concluded, 528. decision on application for, is final, 529. interest in cases of, 268. ABBREVIATIONS — in descriptions of land for taxation, when sufficient, 286, 287. ABUSE— liability of a power to, no argument against its existence, 212. of legislative power to tax, remedy for is in responsibility to constituents, 4, 71, 575. why this an unsafe reliance, 512. of power to tax may be corrected when it exceeds limits, 35, 36. (See JURISDICTION.) of power to levy special assessments, 428, 531. of authority of collector, may make him trespasser ab ¢nitdo, 304, 305, 563, 564. of power, derives no sanction from time, 94. (See REMEDIES FOR ILLEGAL TAXATION.) ABUTTING LOTS— (See AssESSMENT FoR LocaL IMPROVEMENTS.) ACCEPTANCE — of work is conclusive on persons assessed, 468, 469. ACCIDENT — remedy in equity in cases of, 536. ACCIDENTAL OMISSIONS — of property from assessment roll, effect of, 154-156. (See OMISSIONS.) 37 578 LAW OF TAXATION. ACCOUNTING — direction for, in tax warrant, 220. suits against collector for failure in, 497-499. against sureties for collector’s failure in, 499-504. failure to call collector to, by auditing board, 503, 504. by auditing officer sometimes made conclusive on collector, 504-506. (See CoLLECTOR OF TAXES.) ACCUMULATIONS — ; unnecessary, in public treasury, in policy of, 8. ACQUIESCENCE — in municipal organization, effect of, 530, 549. in official action by one assuming to be an officer, (See DE Facto OFFICERS.) in illegal taxation, (See EstoprEL; VOLUNTARY PAYMENTS.) ACRE — assessments by the, in levee cases, 454-457. ACTION— preliminary, cannot be enjoined, 540. of assessors is judicial, 550-552. judicial, cannot be set aside on mandamus, 514416, (See ManDAMUS.) judicial liability in case of, (See JupicraL ACTION; JUDICIAL OFFICER.) political, (See PoniticaL AcTION.) ultra vires, (See ULrRA VIRES.) discretionary, (See DiscRETIONARY ACTION.) ACTION AT LAW— does not usually lie for collection of taxes, 300. may in some cases, 13, 300. by collector who has advanced taxes, 301. to recover lands sold for taxes, 371-383. condition that betterments shall be paid for, 371. that taxes shall be paid, 372-375. short, limitation to, 376-882. “color” and “claim” of title, 382, 383. (See Lawns.) pending when curative act passed, must be governed by it, 281. (See CurATIVE Laws.) against collectors of taxes for moneys collected, 496, 497. for neglect to collect, 499. on collector’s bond, 499-504. against assessors, 549-561. INDEX. 579 ACTION AT LAW — continued. against supervisors, 557, 558. against collectors of taxes for enforcing illegal taxes, 559-565. against town, county, etc., 565. against treasurer for abuse of authority, 304, 805. (See REMEDIES ror ExcessrvE AND ILLEGAL TAXATION.) ACTS OF THE LEGISLATURE— (See STATUTES.) ADEQUATE REMEDY— (See Equity; Manpamvs.) ADJACENT PROPRIETORS — assessment of, for local improvments, 416-473. (See AssEssMENTS, LOCAL.) ADJOINING — meaning of, 452. ADJOURNMENT— of sale, presumption in regard to, 338. ADJUDICATION— sometimes required before lands sold for taxes, 357. proceedings usually begin after failure to collect, 357. court must have jurisdiction, 358. showing of delinquency, 359. notice to parties, 359. proceedings to, are in rem, 361. what defects will avoid, 360-362. sales under, 362. irregularities will not defeat, 362. that taxes are not paid, when conclusive, 823. whether penalties may be imposed without, 313-315. (See PENALTIES.) : whether lands may be forfeited for taxes without, 316-319. (See ForFEITURES.) not required before process may issue for taxes, 37. summary process against collectors without, 496. protection in making, (See JupIcIAL OFFICER.) ADMINISTRATOR — suit against, for tax against the estate, 301. AD VALOREM TAXES — what are, 176. ADVANCEMENTS — for public purposes, taxes may be laid to repay, 101. for bounty purposes, taxes for, 101. ADVERSE CLAIMANT— whether he may buy at tax sale, 348-350. 580 LAW OF TAXATION. ‘ ADVERSE CLAIMANT — continued. recovering in ejectment may be required to pay for betterments, 371 372. other conditions to recovery, 372-375. short statutes of limitation against, 376-383. “color” or “ claim of title” by, 382, 383. ADVERSE POSSESSION— extinguishment of title by, 376-382. doctrine of, as applied to vacant tenements, 376-882, 558, 559. improvements by one holding by, 371, 372. ADVERSE PROCEEDINGS — general right to notice of, (See HEARING.) ADVERTISEMENT— (See Notice.) AFFIDAVIT— by assessors, what cannot be compelled by mandamus, 519, 520. proof by, of giving notice. (See Noricz.) to taxpayer’s list, failure to make, 263. to roli, made prematurely, 562. AGENCIES — of government, not be taxed by state, 56--59, 74. what are and what are not, 56-59, 60. of states, not to be taxed by United States, 56-59, 74. (See EXEMPTIONS.) AGENTS— not to buy land of principal at tax sale, 347 municipal corporations act as, in making local assessments, 463. whether officers are, in their official action, 570. of non resident, taxation of personality to, 270. AGREEMENTS — (See ConTRACTS.) ALABAMA — constitutional provision for assessment of property by value, 486. ALCOHOLIC DRINKS— (See Sprritvous Liquors.) ALIENATION — of lands, does not divest lien, 306. ALIENS — taxation of, 15, 64. ALLEGIANCE — (See Persona ALLEGIANCE.) ALLOWANCE — for debts in assessments, 136, 142. INDEX. 581 ALTERATION — of bond, discharges sureties, 502. of asssesments cannot be made without notice, 268, 547. of tax warrant does not invalidate previous action, 562. ALTERING STREETS — special assessments for, 422. (See AssessmENTS, Locat.) AMENDMENTS — of merely clerical errors, when unnecessary, 234. of proceedings in court, must be by order of court, 235. showing of facts necessary, 235. notice to parties concerned, 285. counter affidavits, 235, 236, by ministerial officers, of their own motion, 236. where the omission is, merely to make a record, 286. in New Hampshire by permission of the court, 236-240. in Massachusetts, 240. in Vermont, 240-242. in New York, 241. cannot be made by ‘one who has gone out of office, 241, 242. cannot be made to prejudice of right of redemption, 242. what defects cannot be cured by, 242, 243. of tax deed, only to be made in equity, 248. of returns, canuot be made by officer to whom they are made, 243. AMUSEMENTS — taxation for, is not admissible, 92, 93. taxation of, 30. taxation under police power, 411. private, whether taxable, 411. ANCESTRAL ESTATES — (See SuccEssIons.) ANNIHILATION — taxation may be carried to extent of, 57. (See FRANCHISE.) ANNUAL MEETINGS — (See MEETINGS.) APPEAL — right to take, sometimes made to depend on list being furnished, 262-264. alteration of assessments when tax payer does not take, 268. officers depriving party of right of, 547. compelling hearing on, 521. (See Manpamus,) when given by statute, usually the sole remedy for unequal or unjust as sessments, 528. cannot in general be taken to the courts, 528. are supposed to furnish a complete remedy, 528. 582 LAW OF TAXATION, APPEAL — continued. party failing to avail himself of, is concluded, 528. right to, does not exist unless given by statute, 528. is not essential if tax is void, 528, by a city, from an assessment, 529. where given, certéorart will not be allowed, 531. APPELLATE BOARD — may be compelled by mandamus to proceed to hearing, 521. action by, is in general conclusive, 529. when action may be reviewed on certiorart, 534. APPOINTMENT — without authority, officer de facto in case of, 185, 186. (See De Facro OFFICER.) of township meetings, etc., (See Notice.) APPORTIONMENT OF TAXES — must be districts for, 103-123. equality the purpose of, 124-164. involves the right to make exemptions, 145. what it consists in, 175. methods of 175. specific taxes, 175. ad valorem taxes, 175. taxes with reference to special benefits, 175, 176. general principles of, 177, 178. by legislature is presumptively just, 179. is imperative, 180. burdens levied without, are arbitrary, 180. diversity in methods of, may be just, 181. ; failure to do justice in, does not render levy void, 181. nor failure in strict enforcement of, 181, 182. must be confined to the district, 182. does not admit of invidious exemptions, 182, 183. in case of highways passing through or into two towns, etc., 106-110, 419, 478. APPORTIONMENT OF DEBTS — on division of municipality, may be made by legislature, 176, 177, 479, 481. APPORTIONMENT OF ASSESSMENTS — general principles, 447-456. by benefits, 449. by foot front, 451-454. by the acre, 454, 455. by value of lots, 456, districts for, 449, 450. (See AssEssMENTS, LOCAL.) € INDEX. 583 APPRAISAL — (See Vanuation.) APPRAISERS — (See AssEssors.) APPROPRIATION — under eminent domain, how it differs from taxation, 175. (See Eminent Domain.) unlawful, (See MisAPPROPRIATION.) ARBITRARY EXACTIONS — how they differ from taxes, 2, 260. levies without apportionment are, 180. ARBITRARY POWER — to tax does not exist, 68. See LimiTaTions ON THE TAXING POWER.) ARBITRARY RULES — of apportionment, 180, 453, 454. (See APPORTIONMENT.) ARKANSAS — exemptions in, 132. constitutional provisions to secure equality of taxation in, 436. ARMY — taxation for, 73. (See Bountizs.) ARREST — after discharge in bankruptcy, 561. for nonpayment of taxes, 301, 389. ASSENT — of owners sometimes required before special assessment can be laid, 455. of people to the imposition of taxes, 44-48, 178. in case of local taxation, 474-495. of municipal corporations to contracts, cannot be dispensed with by legislature, 483-494. to payment of illegal taxes, (See Voluntary PAYMENT.) to illegal taxation, (See EstoPprzt.) ASSESSMENT — invidious or fraudulent may be set aside, 157-547. cannot be confirmed, 228. necessity for, 258, 259. what it is, 258. from what time it dates, 260. to be made periodically, 260, 261. by several assessors, 194. 584 LAW OF TAXATION, ASSESSMENT — continued. lists for, 261-264. tight to notice of, 265-268, 547. meetings for review of, 267. change of without notice, 268. personal, how made, 269-272. only on residents, 269. and at’place of residence, 14, 270. to trustees, 270, 271. of partnership property, 271. principles of, 271, 272. of corporations, 273. of railroad property, 274. whut included in “ taxable property,” 272. of “ certificates of deposit,” “debt,” “income ” and “ machinery,” 272. of stock, 272, 274. of real property, 275. seated and unseated lands, 275-277. what are seated, 276, 277. how assessed, 278. tracts to be separately valued, 279, 280, 289. when owner or occupant to be named, 278, 279. what are separate parcels, 281. what a sufficient description, 282-286. valuation, necessity for, 287. is a judicial act, 288. legislature cannot make, 288. how authenticated, 289, 290. of distinct interests separately, 288, 289. equalization of, 290. evidences of in special cases, 332. review of on certiorari, (See CERTIORARI.) for the purposes of special levies, 447-452. by benefits, 448-451. by other standards, 451, 452. duplicate, (See DuPLIcaTE TAXATION.) fraud in, , (Sec FRAvD.) relief against, (See REMEDIES FOR ExcEssIvE AND ILLEGAL TAXATION.) action in making is judicial, 550-552. ASSESSMENTS, LOCAL — exemptions from taxation do not apply to, 146-151. are not taxes in the ordinary sense of that term, 146, 456. general subject considered, 416-4738. ‘ principles which underlic them, 416. INDEX. 585 ASSESSMENTS, LOCAL — continued. are based upon supposed benefits, 416, 417. must be special authority of law for, 418. cases for, 418-428. court houses and other public buildings, 419, streets and highways, 419, 420. land for opening streets, 420. grading streets, 421. paving, planking and improving streets, 421, 422. altering, widening and extending strects, 422. repaving or repairing streets, 422. drains, sewers, etc., 428-427. culverts, etc., in cities, 425-427. levees and embankments, 427. water pipes in streets, 427. lighting streets with gas, 428, other special cases, 428. objections to, in point of policy and justice, 428, 429. objections under constitutional principles and provisions, 429-446. 1. that they take property without due process of law, 429, 430. 2. that they take property for public use without compensation, 430-4. 3. that they violate express constitutional provisions, 435-444. in Alabama, Arkansas and California, 486. in Illinois and Indiana, 437. in Kansas, Louisiana and Massachusetts, 438. in Michigan and Minnesota, 442. in Mississippi, Missouri, Ohio and Oregon, 443. in Rhode Island and Wisconsin, 444. objections not sustained by the authorities, 444-446. general principles of apportionment, 444-446. methods of apportionment, 447-449. 1. by an estimate of benefits, 448. 2. by a standard fixed by the legislature, 448. fixing the district for assessment, 449-451. one district for several improvements, 445. assessments by frontage, 451-454. is really an assessment by benefits, 454. assessment by the acre, 454-456. assessment by value of lots, 456. property subject to assessment, 456. case of railroad property, 456, 457. case of personal property, 457, 453. case of property devoted to special use, 458. case of public property, 458, 459. proceedings in levying and collecting, 459. district is conclusively fixed by legislative authority, 459. assessment is conclusive upon benefits, 460. courts powerless to relieve against hardships, 461, 462. z 586 LAW OF TAXATION, ASSESSMENTS, LOCAL — continued. proceedings in case of street occupied by plankroad, etc., 462. assessment must be limited to cost of work, 462. may be made before work done, 462, 463. excess in estimate will not defeat, 463. must be distributed through the district, 463. must not go outside the district, 464. may be against the land or against separate interests, 464. statute must be strictly followed in making, 464. conditions precedent must be complied with, 464, 465. collection of assessments, 465. may be as the statute shall prescribe, 465. by contractor, 466, 467. by enforcing lien against land, 466, 467. no defense that work not done according to contract, 468, 469. sale of lands for, 469, 470. personal liability for assessments, 470-473. enjoining, when illegal, 540. (See Insuncrion.) review of on certiorari, 535. (See CERTIORARI.) ASSESSORS — election of, 259. enforcing official duties by, 512-526. cannot be coerced in the exercise of their judgment, 517, 518. may be compelled by mandamus to deliver correct copy of roll, 520. and to put on roll omitted property, 520. and to perform any ministerial duty, 521. act judicially in making assessment, 550-552. joint action by, 194. not liable for excessive assessment, 552. even though it was made so by including property not taxable, 552. nor for errors of judgment, 552, 553. are liable for exceeding their jurisdiction, 553-555. as where personal tax is assessed upon nonresident, 553. or where tax was levied which was never voted, 554. or an excessive tax, 554. or one voted for an illegal purpose, 554. or for neglect of duty in some cases, 554. whether liable for fraud or malice, 556, 557. liability of supervisor as, 557, 558. form of action against, 570. ASSUMPSIT — action of, for taxes, 300. against collector to recover illegal taxes paid, 559-665, against town, county, etc., 565. against collector of internal revenue, 564. INDEX. 587 ASSUMPSIT — continued. actions against collector of customs, 564, 565. (See Action at Law; REMEDIES FOR ExcHssIVE AND ILLEGAL TAXATION.) ASSUMPTION OF POWERS— (See De Facto OFFiceRs; JURISDICTION.) ATVORNEY GENERAL — (See Law OFFICER OF THE STATE.) ATTORNEYS — (See LAWYERS.) AUCTION — lands to be sold at, 344. AUCTIONEERS — taxation of, 389. AUDITING BOARDS — mandamus to compel action by, 515. may be compelled to hear, and also allow legal demands, 515-517. reviewing action of, on certiorari, 533. AUDITING CLAIMS — is a judicial function, 481. by legislature against municipalities, 481. against collectors of taxes, 504, 507. (See CoLLECTOR OF TAXES.) AUTHENTICATION — of assessment, 289, 290. of tax warrant, 293, 294. of notices of tax sales, 336. AUDITOR GENERAL — may be required to reject illegal taxes, 520. discretionary action, not reviewable on certiorari, 532. action of, does not estop the state, 233. AUTHORITY — to tax, strict execution of, 257. (See Taxine PowErs.) to sell must be express, 324. . must be strictly followed, 323-325. whether special is necessary, 333. is terminated by payment or tender, 322, 323. for assessments, must be express, 418. and be strictly pursued, 418. to tax, exhausting, 256. to collect tax, exhausting, 295. of boards of review, what doe3 not exhaust, 291. of collector, defect in, no excuse for not paying over, 498. abuse of, by collector,may make him treasurer a inttéo, 304, 305. 588 LAW OF TAXATION, B BANK CHECKS — taxation of, 22. BANK OF UNITED STATES — not taxable by the states, 58. restraining tax upon, 539. BANKERS — taxation of in general, 388, 392, 393. BANKRUPTCY — arrest after discharge in, 561. BANKS — when tax on shares presumed to exclude tax on bank, 167. when tax on capital excludes tax on shares, 167. when tax on stock excludes tax on business, 167. paying specific tax not taxable on collaterals, 167. restraints on taxation in charters of, 55. savings, taxation of, 169, 392, 393. taxation of, in general, 273, 274, 388, 392, 393. shares in, are taxable property, 210. duplicate taxation in cases of, 165-171. (See CoRPORATIONS.) national, (See Natrona Banks.) BANKS, NATIONAL — may be taxed by states, 61. rules for the taxation of, 394, 395. BENEFITS — always flow from taxation, 3. of taxation, what are, 16, 17, 406, 416. of local assessments, what are, 416. failure of in particular case cannot defeat tax, 3. apportionment by, 176. special assessments must be based upon, 417, 418. not otherwise valid, 417, 418. set off of, against damages for land taken, 420. how estimated, 459-464. must be governed by market value, 459. what to be takeninto account, 461, 462. must be limited to the cost, 462, 463. BENEVOLENCES — distinguished from taxes, 2. BEQUESTS — (See SUCCESSIONS.) INDEX. 589 BETTERMENTS — recovery of value of, where title proves defective, 871, 3'72. cannot be exempted from taxation without authority of law, 154. BEVERAGES — taxation on manufacture and sale of, 390. taxation in regulation and restraint of sale of, 404-407, 412. BIDDER — who entitled to be at tax sales, 341, 345. not the officer who makes sale, 341. not one whose duty it was to pay taxes, 345-351. whether adverse claimant may be, 348-351. BIDDER, HIGHEST — tax sale must be made to, 344. tax deed must run to, 344. BILL IN EQUITY — (See Equity.) BILL OF RIGHTS — (See CoNSTITUTIONAL PRINCIPLES.) BILLS OF EXCHANGE — taxes on, 22. BLOCKS — of lots, assessment of, 281, 282. BOARDS OF EQUALIZATION — powers and duties of, 290, 291. act judicially, 291. how composed, 291. are assessors, 291. election of members of, 291. action of, not reviewable on certiorari, 5384. correction of errors of description by, 285. BOARDS, LOCAL — decision of, as to amount, etc., of tax levy, not reviewable on certiorari, 531. BOARDS OF RELIEF — (See Boarps oF REVIEW.) BOARDS OF REVIEW — compelling hearing by, 52- conclusiveness of action of, 534. BOARDS OF SUPERVISORS — may be compelled by mandamus tc proceed to hear claims, 515-517. and to allow the legal claims, 515-517. and to assess state taxes, 522. BOATS AND VESSELS — taxation of, 270. (See TonnacEe DUTIES.) 590 LAW OF TAXATION, BONA FIDE PURCHASERS — not to be affected by amendments, 239. purchasers at tax sales are not, 329, 375. BONDS — . owned out of state not taxable within it, 15, 16, 169. taxable in general, 65. to be taxed where owner resides, 66, 270. tax on the interest upon, 169. irreparable injury in the issue of, 549. BONDS, OFFICIAL — required to secure performance of public duty, 500. of collector, not according to statute, may be good at common law, 499. remedies upon, 500, 504. BOUNDARIES — (See DESCRIPTION.) BOUNTIES, MILITARY — taxation for, 74, 99-101. BOUNTY BONDS — mandamus to compel taxation for, 525. BRIDGES — taxation for, 94. (See Hianways.) BROKERS — taxation of, 169, 388. BUILDINGS — sometimes excluded in taxing lands, 181. recovery of value of as betterments, 371, 372. assessment of, as personalty, 275. exemption of, (See CHURCHES.) BURYING GROUNDS — exemption of, from taxation, 180. may be subjected to assessments, 144, 456-458. BUSINESS — taxation of, in general, 20, 129. of nonresidents, taxable where carried on, 44. admissible, though property required to be taxed by value, 188, 188 141, 144, # duplicate taxation of, 169. not admissible to build up monopolies, 173. general right to tax, 384, 394. taxation by United States, 484. methods of, 384, 385. of privileges, 385, 386, 392. kinds usually taxed, 387, 392. construction of powers to tax, 387. INDEX. 591 BUSINESS ENTERPRISES — taxation not admissible in aid of, 76-80, 89, 90. BUYERS AT TAX SALES — who may be, 345-851. (See SALES or LAnDs FoR TAxEs.) BY LAW — effect of failure of corporation to observe, 534. illegal taxation by, 567. C. CALIFORNIA — exemptions in, 182. constitutional provisions 1o secure equality of taxation in, 486. do not preclude special assessments, 436. liability to contractor in, 467. CALAMITIES — protection against, 101, 102. (And see LEVEES.) CANALS — taxation of, 151. taxation for, 94, 96. special levy for special benefits from, 490, 491. CAPITATION TAXES — levy of, 18, 73. can only be assessed on residents, 269. CARRIAGE OF PROPERTY — taxes on, 21, 61-63. when a tax on, is a tax on commerce, 62, 63. CARRIERS, COMMON — taxation of, 21, 388. CARS — taxation of, 388. when a tax on, is a tax on commerce, 63. CAVEAT EMPTOR — rule of, applied to tax purchasers, 329, 375. CELEBRATIONS — taxation for, by government, 93. towns no general authority to tax for, 93. CEMETERIES — exemption of, from taxation, 180. (Sec EXEMPTIONS.) 592 LAW OF TAXATION. CEMETERIES — continued. liable for special assessments, 147, 458. CERTIFICATES OF DEPOSIT — what are, 272. d CERTIFICATE OF SALE— what it is, 852. is evidence of sale, but not conclusive, 352. does not convey title, 352, 353. recording, to cut off redemption, 366. compelling delivery to purchaser, 522. CERTIFICATES, OFFICIAL — conclusiveness of, 195. liability of officers for false, 196. to assessment, 289, 290, 562. protection of officer by, 554, 557. CERTIORARI — may be made the exclusive remedy for illegal or irregular taxation, 530. forbidding other remedies, 234. general nature of the writ, 580 is not of right, will not be allowed where likely to do serious mischief, 531. will be dismissed if improvidently issued, 531. dismissing where defect has been cured, 282. political action not reviewable on, 582. not usually awarded where an appeal is given, 582. discretionary action not reviewable on, 533. proper office of, to inquire into jurisdiction, 533. will not be issued to collector, 533. nor in case of merely unequal assessments, 533. nor for mere errors or irregularities, 533. assessments erroneous in point of law reviewable on, 583. and cases where mandatory statutes are disregarded, 533. and cases of erroneous action by municipalities in laying assessments, 534. only the record can be reviewed on, 534. CHANCERY — (See Equity; InsoncTIon; REMEDIES FOR ExcEssIvVE AND ILLEGAL TAXATION.) CHATTELS — of nonresident, not taxable in state, 14, 42. unless having an actual sztus within it, 15. taxed to owner at his place of domicile, 269. property in, accompanies owner wherever he goes, 270. held by trustee, where taxed, 271. of partnership, where taxed, 271. taxation of in bulk, and by separate articles, 272. INDEX. 593 CHATTELS — continued. distraining for taxes, 301-304. objections to this process, 302. taking property of another upon it, 802, 303. municipal corporation cannot authorize, without special authority, 302. enjoining illegal taxes upon, (See InJuNcTION.) levy upon, presumptive satisfaction of tax, 548, 544. CHARITABLE SOCIETIES — exemption of, from taxation, 150. are subject to special assessments, 458. CHARITY — taxation in aid of, 88, 89, 93. CHARTERS — are contracts between the state and the corporators, 55. stipulation in, for exemption from taxation binding on state, 52, 55, 56. presumption against exemption, 54, 273. stipulation subject to legislative action where right to amend or repeal is reserved, 55, 56. strict construction of exemptions from taxation by, 150-152, 273. grant of, may be subject to conditions as to taxation, 44. CHARTERS, MUNICIPAL — are not contracts, 56. (See MunicipaL CORPORATIONS.) CHURCH PROPERTY — exemption of, from taxation, 130, 142, 143. liable for special assessments, 147, 458. CITIES AND VILLAGES — (See MunicipaAL CoRPORATIONS.) CITIZENS — privileges of, not 1o be abridged in taxation, 64. unequal taxation does abridge, 64. doctrine applied to nonresident traders, 64 different methods of procedure admissible in case of nonresidents, 64. (See NONRESIDENT.) corporations are not, 64, 65. CITY ORDINANCE — (See By Law.) CIVIL WAR— pendency of, does not enlarge right to redeem, 364. CLAIM OF TITLE— what is, 382, 383. (See ADVERSE PossEssi0N.) 38 594 LAW OF TAXATION. CLAIMS — against municipalities, auditing of, 479, 481. compelling recognition of, 91. allowance of, by mandamus, (See MANDAMUS.) certiorart in cases of allowance, 582. CLASSIFICATION — of taxes, 5. of lands as seated and unseated, 275-277. of lands in case of levee assessments, 454-457. CLERGYMEN — taxation of, 389. CLERICAL ERRORS — may be disregarded, 234, 562. (See AMENDMENTS.) CLOUD UPON TITLE — what constitutes, in taxes, 542. whether a void tax is, 542, 548. relief in equity in case of, 548. illegality alone no ground of relief, 544. (See Equity.) COERCION — (See VOLUNTARY PAYMENT.) COLLECTION OF SPECIAL ASSESSMENTS — must be made as statute provides, 465. by enforcing a lien, 466, 467. by the contractor, 466, 467. from special fund, 466, 467. defenses to, 468, 469. by sale of lands, 469, 470. by proceedings against the owner, 470-473. COLLECTION OF TAXES— summary process for, 38, 39, 298. by intruders, estoppel in case of, 191, 192, 498. warrant for, 292. must comply with statute, 292. must be properly directed, 293. effect of errors in, 298, 294. different for different taxes, 294. delivery of, 295. exhausting authority under, 295. excess in, makes void, 296, 297. direct and indirect methods of, 298, 299. by suit, 300. by arrest of person taxed, 301. INDEX. 59d. COLLECTION OF TAXES — continued. by distress of goods, 301-804. by detention of goods, etc., 805. by sale of lands, 305-309. return of no goods, etc., as a condition 307. by imposition of penalties, 809-315. by forfeiture of property taxed, 315-319. (See ForFEITURES.) by conditions to the exercise of a right, 319, 320. through municipalities, 321. by stamps, 320. in license fees, 385, 386, 414. of special assessments, 465-473. by state from the collector, 483-511. enjoining, not in general admissible, 536. may be if irreparable injury threatened, 539. (See Insuncrron.) resisting, when proper, 558. COLLECTOR OF CUSTOMS — liability of, for exacting illegal duties, 564, 565. COLLECTOR OF INTERNAL REVENUE — liability of, for illegal collections, 564. COLLECTOR OF TAXES — warrant of, for collection, 292. a trespasser if he acts without, 292. direction of, 293. should follow statutory form, 293. what defects in, do not vitiate, 298, 294. delivery of, 295. exhausting authority in issuing, 295. effect of blending taxes in, 295. demand by, before levying distress, 304. notice by of, distress and sale, 804. when may become trespasser ab initio, 804, 305, 563, 564. return by, of tax uncollected, 307, 308, 359. remedies of state against, 496. suit at the common law, 497. defect of authority no defense to, 497, 498, suit in case, for neglect of duty, 499. pond of, valid though not in statutory form, 499. liability upon, 499, 500. liable on, though tax illegal, 500. may refuse to collect illegal tax, 500, 501. must receive money only, 501. must not speculate in his office, 501. liable for failure to keep moneys safely, 501. must account without demand, 501. 596 LAW OF TAXATION. COLLECTOR OF TAXES — continued. sureties of, only liable on their bond, 501, 502. alteration in bond discharges, 502. : whether extension of time to principal does, 502, 503. not released by repeal of law under which the bond was given, 508. concluding, by auditor’s statement of account, 504-506. summary remedies against, 504. judgment on notice, 504, 505. distress warrant, 506. statute for, must be strictly complied with, 507. principles governing, 507, 508, 510, 511. right to a hearing on, 508, 509. must be proper evidence of right to, 509. not entitled to jury trial of delinquency, 507. summary removal of, 508. compelling issue of distress warrant against, 521. is protected by his process if fair on its face, 559. but not against his own illegalities, 561. what is process fair on its face, 562. not where tax appears to be illegal, 562. nor where process issued by wrong officer, 562.. the protection does not give him title, 563. not liable where taxes actually paid over, 563. proper form of action against, 563. COLLECTOR’S BOND— is for security of the public only, 508. (See CoLtEcTOR oF TAXES.) COLLECTOR'S WARRANT — (See CoLLECTOR OF TAXES.) COLOR OF LAW— taxes collected by and paid over, cannot be recovered back from col lector, 563. COLOR OF TITLE— what is, 382-3. (See ADVERSE PossEssION.) COLORABLE TAXATION — is void, 33, 34, 486. COMBINATIONS — of bidders at tax sales, are fraudulent, 239, 240. COMMERCE, TAXES ON — on exports, 24. on imports, 24. by states, what forbidden, 61. on imports and exports, 61. on tonnage, 61. on trade with Indian tribes, 62. . INDEX. 597 COMMERCE, TAXES ON — continued. by states, on importers as such, 62, 63. on freight passing from state to state, 63. on masters of vessels, 64. what not a tax upon, 63, 64, duties on for protection, 10, 74. - COMMISSION DEALERS — taxation of, 389. COMMISSIONERS — for making special assessments, 448-451. certiorart to, 585. COMMON BURDENS — should be sustained by common contributions, 158. (See APPORTIONMENT.) COMMON CARRIERS — taxes on business of, 21, 383. when they become taxes on commerce, 61-63. COMMON COUNCIL— certiorart to, 584. (See MuntcrpaL CoRPORATIONS.) COMMON LAW — protection of in tax cases, 36-40. (See ConstTITUTIONAL PRINCIPLES.) COMMUTING — for taxes, admissible, 173. cases of, 137, 172. COMPENSATION — for taxation, what is, 2, 14, 16, 406, 416. for special assessments are benefits received, 416-418. in case of exercise of eminent domain, 480-434. for loss by riots. (See Riots.) COMMON LAW REMEDIES — of state against collector of taxes, 497. (See CoLLEcTOR OF TAXES.) to compel performance of official duty under tax laws, 513-526. (See Manpamtvs.) general right to, in tax cases, 36-40, 528. COMPETITION — at tax sale must be allowed, 239, 240. COMPLAINTS — (See REMEDIES FOR EXCESSIVE AND ILLEGAL TAXATION.) COMPULSION — what payments are deemed to be made under. (See VOLUNTARY PAYMENTS.) * 598 LAW OF TAXATION. COMPULSORY TAXATION — (See Manpamvs.) COMPULSORY LOCAL TAXATION — general right of people to vote taxes they are to pay, 474. but state must grant powers to tax, 474, 475. and may modify them at will, 474. local power to tax, value of, 475.. meaning and extent of, 475. is not inherent, 475. is not discretionary in matters of state concern, 475. what are matters of state concern, 476. preservation of order, 476. support of courts, erection of court houses, etc., 477. construction and repair of highways, 478. maintenance of schools, etc., 478. payment of corporate debts, 479. app rtiopment of debts, etc., when municipality is divided, 479, 481 making compensation for destruction by rioters, 480. indemnifying officers, 480. whether the legislature may audit claims against municipalities, 481. municipal corporations, two fold nature of, 482. subjection of, to state in their political capacity, 482. corporate rights in their private capacity, 482, 483. judicial decisions thereon, 483-486, 489, 494. judicial decisions questioning, 486-493. conclusion, 493-495. CONCLUSIVENESS — of assessment on parties taxed in case of special assessments, 449, 450. (See JUDGMENT.) CONDEMNING LANDS — (See Eminent Domain.) CONDITIONS — imposed on power to tax must be observed, 254, 255. imposed to compe! payment of taxes, 319, 320. to render tax chargeable, must be observed, 215. to redemption, must be complied with, 364, 365. cannot be added to by officer or purchaser, 369. imposed on recovery of land sold for taxes, 371-375. imposed on the privilege of doing business, 385, 386. to special assessments, must be observed, 464. CONFIRMATION — of defective proceedings, (See CuraTIvE Laws.) of tax sale, who may oppose, 360. CONFLICTING CLAIMS— pills of interpleader in cases of, 547. INDEX. 599 CONGRESS — taxation by, (See Frpzrau Taxation.) CONSENT — cannot give jurisdiction to tax, 271. cannot pass title to land, 387. (See EsToprsE.) CONSIDERATION — for taxation, what is, 16, 17, 406, 416. for special assessments, 417, 418, 456, 471-473. state may relinquish right to tax for a, 52-56. gifts to public purposes may support taxation, 101. but not gifts to private purposes, 491. CONSTITUTIONS OF THE STATES — provisions in, regarding introduction of revenue bills, 83. may restrain legislative powers of taxation, 244, 251. municipal taxation subject to, 251. protection of minorities by, 251, 252. admit of summary remedies to collect taxes, 298, 303. of recovery of betterments, 371, 372. of summary remedies against collectors of taxes, 504-511. provisions in to secure equality in taxation, 182-144. right to levy special assessments how affected by, 186-146. provisions in, affecting local assessments, 436-446. are framed in contemplation of existence of local powers, 474. provisions in for taking land for private ways, 76. provisions for the taxation of legal process in certain, 23. laws which violate spirit of, not necessarily void, 488. assume the existence of fundamental principles, 41. CONSTITUTION OF UNITED STATES — forbids states passing laws which impair obligations of contracts, 53. instances of such laws, 52-56, 65. stipulations by states not to tax, sometimes contracts, 52-56. charters of private corporations are contracts under, 55. forbids state imposts, or duties on imports and exports, 61, what are exports under this provision, 61. forbids duty of tonnage by states without consent of congress, 61. what are duties of tonnage, 61, 62. state taxes on foreign and interstate commerce are in violation of, 62. but not taxes on property as such, 62. taxes on importers are, 62, 63. taxes on freight, when are, 63. taxes on cars and vessels, when are, 63. taxes on immigrants, are, 63. illustrations of what are not, 63, 64. is violated by taxes which abridge the privilege and immunities of citi- zens, 64, 55. 600 LAW OF TAXATION, CONSTITUTION OF UNITED STATES — continued. does not admit of federal taxation of the state, or its agencies, 58. or of state tuxation of the agencies of the federal government, 57. illustrations of what are government agencies, 57-61. when a tax on passengers out of the state is in violation of, 59. requires duties, imports and excises to be uniform throughout the United States, 73. provision in, regarding direct taxes, 73. forbids duties on exports, 73. limitations in, are applicable to local taxation, 250, 251. CONSTITUTIONAL PRINCIPLES— that taxation and protection are reciprocal, 14. meaning of, 16, 406. that taxation and representation go together, 44. original meaning of the maxim, 44. meaning of in America, 44-48. can only be understood in territorial sense, 46. does not entitle all persons taxed to suffrage, 46. application of to territories and District of Columbia, 47, 48. that life, liberty and property are protected by the law of the land, 36-39. this not a guaranty of judicial proceedings, 37. is not violated by healing statutes, 223-2382. exceptions, 227-229. admits of distress for taxes, 302, 308. whether legislative forfeitures violate, 316-319. whether it admits of imposition of penalties without judicial hear- ing, 318-315. not violated by enforcing any valid tax, 425. protection of municipal property, 494. monopolies not admissible under, 173, 403. special assessments on basis of benefits not obnoxious to, 429-431. summary process against collectors and their sureties, admissible under, 504-511. influence of custom in understanding of, 39. giving jury trial, not applicable in tax cases, 36-40, 507. (See Jury TRIAL.) CONSTITUTIONAL RIGHT — hearing is matter of, 229, 265-268. local government a matter of, 474-495. CONSTRUCTION — of contracts not to tax must be strict, 58. of exemptions must be strict, 54, 146. effect of this in case of special assessments on real property, 147. instances of construction of exemptions, 148, 149. application in case of corporations, 149-151. of township powers to tax, will admit of indemnifying officers, 91. not of celebrations, 93, 94. INDEX. 60] CONSTRUCTION — continued. of township powers to tax, general observations upon, 98, 99. of local powers to tax generally, 209-211, 2177. reasons why this should be strict, 209. the rule applied in case of assessments, 418. rule where apparently modified or affected by general statutes, 210, 221, 222, 255, 256. of constitutional provisions regarding equality and uniformity in tase tion, 182-144. in Arkansas and California, 182. in Georgia and Illinois, 183-137. in Indiana, 137. in Iowa and Louisiana, 138. in Maryland, 189. in Massachusetts and Michigan, 140. in Minnesota and Missouri, 141. in Ohio, 142, 148. in Tennessee, 143. in Virginia and Wisconsin, 144. rules of, in construing statutes, 197. of revenue laws, 199-208. whether to be strict or not, 200. views of Mr. Dwarris, 200, 208. ‘ citations from English reports, 201. from American reports, 202-207. penal provisions in, 208, 262. what provisions to be held mandatory, 212-219, what to be considered only directory, 219, 220. of remedial laws, 204, 205. of laws permitting redemption, to be liberal, 363. of provisions apparently retrospective, 221, 222. of powers to tax business, 387. of power to levy license fees, 396-398. where it warrants the levy of fees for revenue, 408. influence of custom upon, in case of powers to tax, 396, 397. in case of town votes, 347. (See Custom.) CONSTRUCTIVE FRAUD — whether illegal taxation is, 539. in tax purchases, (See COMBINATIONS; BIDDER.) CONSTRUCTIVE POSSESSION — (See Possession.) CONSUMPTION — indirect taxes on, (See InprrEcT TAXES.) of luxuries, taxation of, 23. 602 LAW OF TAXATION, CONTRACTOR — collection of assessments by, 466, 467. fraud of, will not defeat assessment wheye work is accepted, 468, 469. CONTRACT — not to tax, states may make, 52-56. charters of private incorporation are, 55. but not municipal charters, 56. exemptions from taxation from motives of state policy are not, 54, (See EXEMPTIONS.) obligation of, not to be violated in taxation, 65. by corporations ultra vires, (See ULTRA VIRES.) tax laws are not, and state may repeal, 252, 253. tax purchases are, 370. power of legislature over redemption from, 369, 370. state cannot make, for municipalities, 483-494. taxation of money contracts, (See Bonps, CREDITS.) in fraud of revenue laws, are illegal, 299. CORPORATIONS — charters of are contracts, 55. restrictions on taxation in, are binding, 55, 65. property of, is represented by stock, 164. exemptions of, from taxation, 55, 150-152. instances of special or partial exemptions, 148, 151, 152. duplicate taxation iv case of, 166-171, 571. whether to be classed as “ persons,” etc., 273. taxation of in general, 15, 16, 25, 58, 60. questions of equality in, 129. valuation of the franchise, 185-187. effect of consolidation on, 151. capital and shares may both be taxed, 164, 274. effect upon this of the presumption against duplicate taxation, 166, 171. methods of, are in legislative discretion, 273. may be on franchise, capital, shares, or taxable property, 273. other methods admissible, 273, 274. case of railroad property, 278, 274. meaning of “stock” in tax law, 274. shares should be taxed at owner’s domicile, 44. general methods of taxing, 392, 393. on the franchise, 393. on the property by valuation, 393, 571. on the capital stock, 393. on the business done, 278, 274, 393. on dividends, profits or receipts, 187, 188, 221, 393. specific tax cannot be levied on, under a power to tex “ taxable prop. erty,” 210. INDEX. 603 CORPORATIONS — continued. general notice of taxation of, 267. recovery by for excessive taxes, 571. (See CHARTERS; FRANCHISES; NATIONAL Banks.) CORPORATION OFFICERS — may be compelled by mandamus to perform duties under tax laws, 528. (See CoartTer; Francuises; NationaL Banks.) CORRECTIONS — by judicial action, 283, 234. (See AMENDMENTS; CURATIVE Laws; REASSESSMENTS.) COSTS — recovery of, in suits for illegal taxes paid, 568, 570, 571. COUNTIES — apportionment of debts, etc., on division of, 176. may be made debtors for state taxes, 321. bids by, at tax sales, 351. liability of, for illegal taxes, 565. (See Remepres FoR ILLEGAL AND Ungust TAXATION.) COUNTY BUILDINGS — local taxation for, 115, 419, 477. COUNTY BOARDS — (See Boarps oF EQuaLizaTIon; Boarps oF REVIEW.} COUNTY COMMISSIONERS — (See Boarps or Revirw.) COUNTY TREASURER — default of, county to respond for, 321. may be compelled to issue distregs warrant against collector, 521. cannot question an assessment as unjust, 521. COUNTY TRUSTEE— compelling levy of tax by, 522. COURT HOUSE— special tax on county town for, 115, 419. municipalities may be compelled to tax for, 477. COURTS — support of, municipalities may be compelled to tax for, 477. (See JUDICIARY.) CNURTS OF THE UNITED STATES — have limited jurisdiction in matters of state taxation, 525, 526. mandamus by, to compel payment of their judgments, 525. taxation by commissioners appointed by, 526. CREDIT — not to be given at tax sales, 344. CREDITS— are property, 159. 604 LAW OF TAXATION CREDITS — continued. taxation of, 15, 65, 134, 270. taxation of, in hands of agent, 270. (See Bonps.) when secured by mortgage, (See MortTGAGE.) CULVERTS — special assessments for, 425-427, CUMULATIVE TAXES — (See DupLicaTE TAXATION.) CURATIVE LAWS — healing defects in tax proceedings by, 223-282. cannot establish conclusive rules of evidence, 228. must not take the form of legislative mandates, 224. may be special acts, 225. limitation upon the right to pass such, 225-226. what defects cannot be cured by, 227-229. may be prospective, 230. may be made applicable to pending suits, 231. but not to cases passed into judgment, 231. may provide for reassessment, 232. (See JuDIcIAL CORRECTIONS.) CURB STONES — assessment for, 423. (See AssEssMENTS, LOCAL.) CURTESY — tenant in, may redeem, 366. CUSTODIAN — (See INTERPEADER.) CUSTOM — effect on construction of power to tax, 397. effect in determining what are public purposes, 80. influence of, in construction of public powers, 39. to be considered in construing town votes, 347. CUSTOMS DUTIES — what are, 3. levied by the United States, 24, 384. liability of collector of, 564, 565. D. DAMAGES — by local improvements, cannot be set off against assessment, 420. by rioters, towns, etc., may be compelled to pay, 480. to which one is entitled, not taxable as a debt until definitely fixed, 272. INDEX. 605 DAMAGES — continued. assessment of, is a judicial act, 551. party making, not personally liable for error in, 551. recovery of, in actions against collector, ete., 579. towns, etc., not liable for, in case of illegal action by officer:. 570. whether this rule applies under =pecial charters, 570, 571. DAMS — for water power, taking land for, under right of eminent domain, 77. DEBT, PUBLIC — taxation for payment of, 102. unlawful engagement does not create, 102. of municipalities, state may compel payment of, 479. including moral obligations, 479, 450. not to be audited by the state, 451. not to be created by the state, 463-495. action in creating unlawfully, not a private wrong, 548. enjoining, on application of taxpayers, 548. failure to provide for, cannot be remedied by means of the writ of que warranto, 315. of the United Siates, not taxable, 50. DEBTS — taxes are not, 13. allowance for in assessment, 136, 142. of municipalities, compulsory taxation for, (See Dezt, PUBLIC.) taxation of, (See Crepits; MoRTGace.) DECEASED PERSONS — estates of, where taxable. 270. assessment of to widow and heirs, 278. assessment to, is no debt against administrator, 301. DECISIONS — (See DiscRETIONARY ACTION; JUDGMENTS.) DEDICATION — of streets, authorizes opening at expense of owners, 421. DEED — (See ALIENATION; Tax DEED.) DE FACTO GOVERNMENTS — may levy taxes, 4, DE FACTO OFFICERS — who are, 185. action of, how far binding, 187-191. protection of, 188, 189. questioning title of, 187-189. that taxes are collected by, is no ground for recovering them back, 570. 606 LAW OF TAXATION, DE FACTO OFFICERS — continued. collector, cannot defend against an accounting by showing defect in his title, 191, 192, 498. (See OFFICERS.) DEFAULT — determination that one is in, is judicial action, 559. (See FoRFEITURES.) must be, before distress levied, 304. or before land can be sold, 322, 328. in payment of municipal debts, (See Dest, PUBLIC.) DEFAULTING COLLECTOR— suits against, at common law, 497-499. suits on bond of, 499-504. summary remedies against, 504-511. (See CoLLECTOR OF TAxEs.) DEFECTS — in title of de facto officer, effect of, 187-191, 498. (See OFFICERS.) in tax proceedings which render them void on their face, prevent their being a cloud on the title, 542-544. in process, what will prevent it being fair on its face, 562. (See Fain on 178 Face.) DEFENSE — of collector under his process, (See Process.) to illegal taxes, (See REMEDIES OF EXCESSIVE AND ILLEGAL TAXATION.) DEFICIENCY — occasioned by misappropriation, may be provided for by tax, 548. no private right of action for such wrong, 572. DEFINITION — of taxes, 1. of tax legislation, 1. of taxable property, 180, 272. of capital, 150, 151. of duplicate taxation, 164. of “actual value” of capital stock, 165. of office, 184. of officer, 184. of officer de facto, 185. of officer de jure, 185. of revenue laws, 199. of directory statutes, 212-215. of mandatory statutes, 212-215. of assessment, 258. INDEX. 607 DEFINITION — continued. of certificate of deposit, 272. of income, 272. of “seated, “ resident” and “ occupied ” lands, 276. of levy, 298. of color of title, 382. of claim of title, 382, 383. of license, 406, 407. of “bounding or abutting,” 452. of “adjoining,” 452. of “ in front,” 452. of cloud on title, 542. of direct taxes, 5. of law of the land, 37-88. DE JURE OFFICERS — who are, 185. distinguished from officers de facto, 185. (See OFFICERS.) DELAY — in taking objections promptly, reason for denying a certéorar?, 580, 531. in case of irregular organization of school district, may preclude objec- tions, 530, 549. in doing the work for which tax is levied, no defense to the tax, 540. of collector in selling goods distrained, effect of, 564. (See EsTOrPEL.) DELEGATION — of power to tax cannot be made to the judiciary, 33, 34. nor to any subordinate authority, 48-51. questions affecting amount of taxes may be referred, 49, 50. power to decide upon licences may be granted, 49, 413. to municipal corporations, of power to tax, admissible, 51-53. (See Assessments, Locan; Computsory Loca Taxation.) DELINQUENCY — must exist to authorize sale of goods for taxes, 304. and before the power to sell land attaches, 322, 323. in case of highway labor, determination of, 550. DELINQUENT TAXES — distress and sale for, 301-304. (See DisTRESS.) sale of lands for, 805-309. (See SaLEs or LANDS FoR TAXES.) forfeiture of property for, (See FoRFEITURE.) DEMAND — for taxes, before suit, 301. before distress, 304. before sale, 353. 608 LAW OF TAXATION. DEMAND — continued. for jury, the proper remedy where party entitled to it, 532. for tax, when it amounts to compulsion, 571. when necessary to entitle party to interest, 571. DEMANDS — (See Bonps; Crepits; DEBTS.) DE MINIMIS LEX NON CURAT— maxim, application of, to excessive taxes, 296, 297. DEPOSIT — what is certificate of, 272. taxation in respect of, 394. what tax on, is held invalid, 165. DEPRECIATION OF PROPERTY — is no defense to a tax, 540. DESCRIPTIONS OF LAND— separate, must be separately assessed, 279-282, 287. if grouped, the assessment void, 279. what are separate, 281, 282. must be separately sold, 341, 342. in assessment, what is sufficient, 282. correction of by county board, 285. must identify land, 282. must not be calculated to mislead owner, 282, 283. not enough that it would not mislead in party’s own conveyance, 283, 284. result of the cases, 285, 286. instances of defective, 286, 287. must not be divided in making sale, 282. in notice of sale, what sufficient, 336, 337. if defective in tax roll, tax is void, 558. DESTITUTION — taxation for relief of, (See CHARITY.) DESTRUCTION — taxation may be carried to extent of, 57. taxation for the purposes of, 10, 408. of franchise by taxation may be enjoined, 539. DIFFICULTIES — in enforcement of tax laws, 512. DILATORY PROCEEDINGS — statutes to prevent in tax cases, 507, 508, 572, 573. DIRECT TAXES — what the term means, 5. meaning of, as used in the federal constitution, 5. how laid by the United States, 73, 142. INDEX. 609 DIRECTORY STATUTES — what are, 212-215. instances of, 219, 220, (See ConstRucTION.) DISABILITY — redemption in case of, 864, 365, DISASTERS — (See CALAMITIES.) DISCHARGE — in bankruptcy of person taxed, does not render officer liable for arresting him, 561. of lands illegally taxed, 520, 574. (See ABATEMENT; MANDAMUS.) of tax by payment, (See PAYMENT.) of lien by tender, (See TENDER.) of sureties by change in their obligation, (See SURETIES.) of tax by levy on goods, 548, 544. of lands from tax sales by redemption, (See REDEMPTION.) of municipal obligations by compulsory taxation, (See Computsory Locan Taxation; Manpamus.) DISCOUNTS — discriminations in making, may be enjoined, 540. payments made to obtain, are deemed voluntary, 568. DISCOURAGEMENT — of trades or occupations in taxation, (See PoticE PowEr.) DISCRETIONARY ACTION — cannot be reviewed on certioraré, 582. instances of 532. cannot be enjoined, 540. will not render the officer personally liable, 550. (See JUDICIAL OFFICER.) will not be controlled on mandamus, (See ManDAMUS.) DISCRETIONARY POWERS — not to be interfered with, 157, 514-525. (See ManDAMUS.) effect of fraud upon exercise of, 157. liability to abuse, no argument against, 212. are vested in assessors, 550-552. DISCRETIONARY WRITS — (See CERTIORARI; MANDAMUS.) 39 610 LAW OF TAXATION. DISCRIMINATIONS — in duties, sometimes made for purposes of protection, 10, 24, 25. against articles of luxury, 23, 25. unavoidable in taxation, 128, 130. taxes not void for, 129. in taxation of business, 188, 139. what inadmissible, 153, 179. between real and personal property in special assessments, 456. against undesirable occupations, 396. (See Potice PowER.) unlawful, may be enjoined, 540. between residents and nonresidents, not allowed in taxation, 64, 65, 158, in retrospective taxation, 226. DISMISSAL OF WRIT — (See CERTIORARI.) DISTRESS — taxation for relief of, (See CHARITY.) DISTRESS OF GOODS — legal warrant for, 301, 302. is a summary remedy, 802. founded on long practice, 302. leaves party his common law remedy, 802. common law remedies sometimes taken away in case of, 302. levy of on goods of another, 302, 803. demand before, 304. statutes regarding notice to be strictly complied with, 304. when action in, renders officer trespasser ab intzo, 304, 305 563, 564. certiorart may be brought though tax has been collected by, 584. what defects in process render collector liable, 562. cannot generally be enjoined, 588. (See Inguncrrion.) when threat of, amounts to compulsion, 568, 569. replevin in case of, 802, 572. DISTRESS WARRANT — against collector of taxes, (See CoLLECTOR OF TAXES.) compelling issue of by mandamus, 521. DISTRIBUTIONS — (See SuUCCESSIONS.) DISTRICTS — necessity for in case of taxation, 104, 176. object of the tax must sometimes determine, 104. for road taxes, 108, 109. P for local taxes generally, 109. in case of special improvements, 110. INDEX, 611 DISTRICTS — continued. must be established by legislative authority, 110, 111. judicial tribunals cannot control establishment of, 111, 119. legislative methods of establishing, 112, 118. diversity in, 118, 114. overlying, for public buildings, 114-117. for improvement of streets, 117, 118. in case of general city taxes, 118, 119. taxation must be for purposes of, 104-108. taxation beyond limits of, not admissible, 121-128, 169. exemptions of property in, 182, 185. (See EXEMPTIONS.) apportionment must be uniform within, 180. different, may be differently taxed, 172. different methods of collection in, 181. for levee taxes, 427. for local improvements generally, (See AssessmMENTS, Locat.) DISTRICTS FOR SCHOOLS— (See Scnoot Districts.) DIVERSITY — of taxes, (See TAXEs.) of taxation in districts, 172. in methods of collection, 181. in case of residents and nonresidents, (See NoNRESIDENTS.) DIVIDENDS— / taxes on, 22, 170, 210, 272. as a measure for taxation, 171. how evidence of, may be required, 523. tax on, cannot be disputed by creditors on the ground that they should not have been declared, 572. DIVISION — of parcels of land in tax sales, 282. of municipalities, apportionment of debts and property on, 479, 481, of powers of government, 32. DOGS — taxation of, for revenue, 21. for regulation, 412. DOLLAR MARK — omission of in assessment, effect of, 289. omission of in judgment is fatal, 289. DOMAIN — (See Eminent Domatn.) public, (See Pusric Lanps.) 612 LAW OF TAXATION. DOMICILE— right to tax when dependent upon, 42-44. residents must be taxed at place of, 269-272. exceptions in case of tangible property, 14. and of located business, 270, 271. of trustee, determines place of taxation of the trust, 271. what constitutes, 269. (See NONRESIDENTS.) DOUBLE TAXATION — one complaining of, must show that he has paid once, 541. (See DuPLicaTE TAXATION.) DOWRESS — right of, to redeem, 366. DRAINS — taxation for, to protect the public health, 101. special assessments for, 423, 424. (See AssEssMENTS, Locat.) whether health a necessary consideration in case of, 424. special benefits from, may be made the basis of assessment, 423, 424, for purpose of reclaiming large tracts of land, 402, 424. assessments for, under the police power, 402. cannot be made by taxation for private benefit solely, 424. instances of special assessments for, 423. assessors must meet to make, 195. illegal, cannot be enforced, 225. estoppel against disputing benefit of, 574. DRAINAGE — (See Draxns.) DRAYMEN — taxation of, 391. DUE PROCESS OF LAW— (See Law or THE LAND.) DUPLICATE — (See CoLLECTOR’s WARRANT.) DUPLICATE TAXATION — results from taxation of personalty, 28. impossibility of avoiding in some cases, 158, 161. indirect taxation results in, 159. taxation of corporation and its stockholders sometimes is, 159. taxation of property and the debt owed for it, 159. taxation of mortgage and the property it covers, 159. injustice of, is not a legal question, 160. not necessurily invalid, 160. tax on sales which reaches property twice, 160. decisions upon the validity of such taxation, 161-163. is invalid if the same burden reaches twice the same subject, 164. . INDEX. 613 DISTRICT TAXATION — continued. taxation of a corporation and its franchise is not, 165, 170. revenue statutes are to be construed so as to prevent, 165. instances in which this rule has been applied, 166-168. instances which have been held not within it, 168-170. instances of special corporation taxes, 171. tax on merchant’s stock and his business is not, 389. DUTIES — meaning of the term, 3. upon imports, 24. upon exports, 24. for what purposes levied, 24, 25. are required to be uniform, 73. frauds in the collection of, 309-313. contracts in fraud of, 299. illegal collection of, (See CoLLECTOR oF CUSTOMS.) DUTY — to pay taxes, the correlative to protection, 16, 17, 406, 416. how this should be apportioned, 6. (See APPORTIONMENT.) of the government in laying and collecting taxes, 6, 7. official, how performance of compelled, 512-526. (See Manpamvs.) of collector, how performance of secured, (See CoLLECTOR oF TAXEs.) of assessor to give notice, whether neglect of will render him liable, 554, of municipality to pay judgments, etc., may be compelled by mandamus. 524-526. or by compulsory taxation by state, (See Computsory LocaL Taxation.) of municipality to levy water rates, cannot be coerced on quo warranto, 575. E. EDUCATION — religious, not a proper purpose for taxation, 88, 84. secular, taxation for, 84-88. extent of, a question for the legislature, 85. may be provided for by public schools, 85. or by assisting private schools, 86. local taxation to erect state buildings for, 87, 88. municipalities may be compelled to provide for, 478. exemption of property used for purposes of, 130, 145. e 614 LAW OF TAXATION. EJECTMENT — for lands sold for taxes, 871. _ condition to recovery that improvements shall be paid for, 371, 372 condition that taxes shall be paid, 373-875. short statutes of limitations for, 376. how affected by constructive possession, 378-382. (See ADVERSE PossEssIoN.) cannot be brought by one in possession, 544. in case of vacant tenements, 878-382, 545. (See Lanp TITLEs.) ELECTION — of remedy where one has paid an illegal tax, 565. ELECTION OFFICERS — not liable for errors in the exercise of their judgment, 551. ELECTIVE FRANCHISE — payment of taxes may be made condition to, 319, 320. action for depriving one of, by not taxing him, 320. EMBANKMENTS — to prevent inundations, special assessments for, 427. (See LEVEES.) EMINENT DOMAIN — principles governing its exercise, 76-83, 430. meaning of public purposes in the law of, 76-83. may be employed to obtain water power, 77. distinction between exercise of, and taxation, 175, 178. special compensation to be made in case of, 76-83, 480. special assessments not an exercise of the, 431-484. assessments for land taken for, 420, 421. appraisal of damages under, is judicial, 551. EMPLOYMENTS — taxes on privilege of following, 385, 386, 392. what usually taxed, 392. taxation of, for regulation, 396-415. (See Business.) ENCOURAGEMENT — to proceed with improvements, may operate as an estoppel, 573 (See ESTOPPEL.) of business, discriminations for purposes of, (See PROTECTION.) ENFORCING OFFICAL DUTY — (See ManpDaMvs.) ENFORCING PAYMENT — by collector, (See COLLECTOR OF TAXES.) by municipalities, (See Manpamvus; Comrutsory Locan Taxation.) INDEX. 615 ENFORCING TAXES — (See CoLLEcTION oF TAXES.) ENGLAND — taxation in, 26, 27, 81. sewer assessments in, 426, 460, 472. land taxes in, 18--20. monopolies in, 1738, 423. the maxim in, that taxation and representation go together 44. EQUALITY — taxation must aim at, 2, 108. impossibility of attaining, 124-128, 183. may exist, though but few articles taxed, 128 but not, if exemptions made from the classes taxed, 129, 129. exemptions admissible, 130. (See EXEMPTIONS.) invidious assessments inadmissible, 157. duplicate taxation not necessarily void, 158-165. when may be, 164. presumption against, 165-171. (See DupiicaTE TaxaTION.) commuting taxes does not produce inequality, 172. nor diversity in rules, etc., 172. monopolies, inadmissibie, 178, 423. permanence in legislation essential to, 174. discriminating assessments cannot be cured, 228. (See Curative Laws.) assessment by benefits is supposed to be, 416-445. apportionment essential to, 175-183. want of, in a tax does not render it void, (See ExcrsstvE ASSESSMENTS.) remedies where it is wanting, (See REMEDIES FOR EXCESSIVE AND ILLEGAL TAXATION.) EQUALIZATION — boards for, 290. conclusive nature of, 291. limited authority of boards of, 291. judgment on, is final if no appeal given, 528, 529. errors in, do not invalidate, 530. decisions on, not subject to review on certiorar?, 584. EQUITABLE ESTOPPEL— (See EsTorPEL.) EQUITY — of any particular exaction, cannot support it, unless it has the elements of taxation, 3. of demands against the public, legislature may require recognition of, 479, 481. of special assessments, 428, 429. 616 LAW OF TAXATION. EQUITY, COURT OF— relief in, against fraudulent assessments, 157, 158, 547. cannot enjoin political action, 34. cannot abate taxes, 528. cannot give remedy to one who has neglected that given by statute, 529. enjoining collection in, 536. not allowed, unless the case comes under some head of equity juris. diction, 536. mischiefs flowing from, 536. remedy refused where mischief serious, 536, 537. conditions on, 587, 538. not generally allowed in case of personal taxes, 538. allowed where injury irreparable, 539. will not enjoin preliminary action, 540. nor merely excessive assessments, 540. nor merely irregular taxation, 540. what are not mere irregularities, 540, 541. may enjoin when discriminations are made, 540. will not enjoin a double tax unless once paid, 541. whether personal tax in respect to lands can be enjoined, 542. may relieve from cloud upon title, 542-544. what is such, 542. whether it is cloud where the proceedings are void on their face, 542. may quict title after sale, 544. not the proper tribunal for triai of land titles generally, 544. relief by, in respect to possession, 545. joint suit by several persons taxed, 545. question must be same as to’ all, 545. and be capable of being presented without confusion, 545. cannot quiet title as against party in possession, 545. saving of expense not a reason for complainants’ joining where there is no other ground of equitable relief, £46, 547. may enjoin malicious or corrupt assessment, 547, 556. bills of interpleader in, 547. taxpayers’ bills in, to enjoin illegal corporate action, 547, 548, action wltra vires usually a public wrong, 547, 548. relief on ground of irreparable injury, 547, 548. delay in proceedings may bar right in, 549, 578. cannot compel the levy of taxes, 34, 35. will not enjoin an assessment where a party seeing the work go on has made no objecticns, 578. redemption cannot be had in, 364. EQUIVALENT— benefits are, for special assessments, 416, 417. for taxes, what is the, 13-17. when the eminent domain is employed, 76. INDEX. 617 ERRORS — in description of land, effect of, 282-286. what may be rejected, 283. in assessment and in private conveyance, effect of, 284-286. in records, etc., amendment of, (See AMENDMENTS.) in valuations, not to be corrected by the courts, (See JUDICIARY.) correction of, by statute, (See Curative Laws.) in tax proceedings, must usually be corrected by the statutory tribunal, 528, 532. cannot usually be corrected in equity, 536, 540. (See Equiry, Court or; INJUNCTION.) of assessors, do not render them personally liable, 550-553. (See ASSESSORS.) deprivation of a legal right not a mere error, 554. distinction between, and want of jurisdiction, (See JURISDICTION.) resisting collection in case of, 558. what, on the part of the collector, will render him liable, 563, 564. what, in collector’s warrant, renders it not fair on its face, 562. clerical, may be overlooked in any case, 234, 562. jn tax deed, correction of in equity, 353. waiver of, by action of the party, (See EstorP£..) effect of, in general, (See IRREGULARITIES.) ERRORS OF JUDGMENT — not to be corrected by mandamus, (See MANDAMUS.) jn assessments, cannot be reviewed by the courts, 528. cannot be reviewed on certiorari, (See CERTIORARI.) do not render an officer personally liable, (See JupicraL OFFICER.) in legislative action, not subject to judicial correction, (See LuGIsLATIVE ACTION.) ERRORS OF LAW — what may be corrected by mandamus, (See MANDAMUS.) extending to jurisdiction, may be reviewed on certiorari, (See CERTIORARI.) what will render proceedings void, (See JURISDICTION ; NULLITY.) ERRORS IN POLITICAL ACTION — cannot be corrected on certiorari, 541. 618 LAW OF TAXATION. ERRORS IN POLITICAL ACTION — continued. cannot be corrected on mandamus, 518, 519. nor on bill in equity, 34, 35. (See VOTING THE Tax.) ESTATE — the whole, in lands, may be sold for taxes, 341. and for special assessments, 469, in common, taxation of, (See TENANTS IN COMMON.) redemption of separate, 365. in dower, redemption of, 366. set apart as a homestead, 366. (See HoMESTEAD.) wife’s separate, taxation of, 278. ESTATES — recovery of, at law, (See EJECTMENT.) quieting title to, (See Quretine TITLE.) removal of cloud upon title to, (See CLouD UPON TITLE.) adverse possession, in case of, (See ADVERSE POSSESSION.) ESTATES O! DECEASED PERSONS — taxation of 270, 278, 301. ESTIMATE — for purposes of general taxation, (See VALUATION.) for the raising of taxes, (See PoxiticaL ACTION.) for local improvements, effect of excess in, 463. departure by assessors from statutory method of, 532. ESTOPPEL — against intruders who have collected taxes, 191. against collectors de facto, 498. against one who has collected a void tax, 498. against the state in case of illegal organization of municipal corpora- tions, 549. in case of ta. payer neglecting to bring in list, 264. of tax payer b giving in list of property not taxable, 264 state may be bound by, in case of officer de facto, 187-189. of tax payer by encouraging levy of a tax, 573. by failure to give notice of objections, 573. by failure to take objections on hearing, 574. city not bound by, in consequence of taxing land covered by a street, 574. INDEX. 619 EVIDENCE — legislative control over rules of, 223. does not authorize rules which preclude a party from showing his rights, 223, 224. tax deed cannot be made conclusive, 356. must be put in by tax purchaser to show regularity of tax proceedings, 826, 328. strictness required in these cases, 827. how he may be aided by presumptions, 329-332. how far presumptions may depend on delays, 380, 381. how they may be affected by possession, 830, 881. presumption cannot supply want of record, 882. cannot presume existence of record where none is found, 382. secondary, where record is lost, 248, 332. of tax votes, must be of record, 247. can only be shown by record, 248. of tax sale, by certificate, 352, 353. record is better evidence, 352. by tax deed, of the proceedings tu a sale, 353-857. deed is not evidence of the previous steps, 353, 354. statutes changing this rule, 354, 355. some statutes make it evidence of regularity of sale, 355. necessity in such case to prove prior proceedings, 355. other statutes make the deed evidence of title, 355, 356. cannot make deed conclusive. 56. do not apply to deeds on sales for assessments, 356, 357. against the collector, by the accounting of the auditor, 505, 506. of giving notice of meetings of towns, etc., 248. on certiorari, is only gone into to determine jurisdiction, 532. not to review case on the merits, 532. extrinsic, cannot be received on, 535. necessity for, to show defect in tax title, will render deed a cloud upon title, 543. for the purposes of amendments, (See AMENDMENTS.) action by one as officer, evidence of official character, (See OrFicers Dz Facto.) ofticial returns as, 195,196. are generally conclusive, 195. except in action against the officer, 196. EXACTIONS — equity of, will not support them as taxes, 3. EXCESSIVE ASSESSMENTS — abatement 9f taxes in cases of, 527. (See ABATEMENT.) reviews and appeals in cases of, 528-530. remedy must generally be the statutory remedy, 528. refunding tax in cases of, 530. 620 LAW OF TAXATION. EXCESSIVE ASSESSMENTS — continued, cannot be corrected on certiorar?, 583. assessors not personally liable for, 552, 556. collector not liable in cases of, 552. equity cannot correct in general, 540. may correct in cases of fraud, 547. conditions may be imposed in such cases, 587, 538. EXCESSIVE DUTIES — tend to defeat the purpose of their levy, 24. illegal, may be recovered back of collector, 564, 565. EXCESSIVE MOISTURE— taxation for drawing off, (See Drains.) EXCESSIVE SALE — sale for taxes must be of only what is necessary, 348. sale for more, is void, 3438, 345. power to sell, is exhausted when tax is paid, 344. illegal addition of percentage, or costs, may render sale excessive, 344 EXCESSIVE TAXES — tax in excess of authovity, spread upon the roll, renders it void, 296, 297, one excessive tax does not defeat others which are severable, 296, what will render tax excessive, 296. excessive in individual cases does not avoid roll generally, 296. the maxim de minimis, etc., in such cases, 296, 297. made so by fraudulent assessment, 157, 158, 547. will only be enjoined on payment of what is legal, 538. in suit for, only what was illegal can be recovered back, 571. one excessive tax does not avoid levy if aggregate not too large, 220. EXCISE TAXES — what are, 3. on business, 384-892. (See BusryEss.) on corporations, 392, 393. (See CoRPORATIONS; FRANCHISES.) EXECUTION — tax warrant is in the nature 0”, (See CoLLECTOR’s WARRANT.) process agains. collec.or in nature of, (See CoLLECTOR OF TAxEs.) EXECUTION OF POWER— must be strict in tax cases, 257. of collector, must be strict, 304, 308. to sell, must be exact, 323-827. EXECUTIVE, THE — cannot levy taxes, 32. not subject to mandamus, 523. INDEX. 621 EXECUTIVE AND MINISTERIAL OFFICERS — must keep within limits of their authority, 33. cannot refund taxes, 530. compelling performance of duty by, (See ManpaMvs.) protection of by process, 559-562. protection of by certificate on which they must act, 557. EXECUTOR— taxation of for estate property, 270, 271, 278. suit against for tax on estate, 301. EXEMPT PROPERTY — inserted on roll, assessors may be compelled to strike off, 520, 574. taxes collected from, may be required to be refunded, 520. taxes on auditor general may be required to reject, 520. abatement of taxes upon, 528. refunding taxes upon, 530. including in assessment, will not render assessor personally liable, 552. taxation of, not a mere irregularity, 541. (See EXEMPTION.) EXEMPTION — of agencies of federal government from state taxation, 56-61. of agencies of state government from federal taxation, 58-61. of property, by contract, 52-54. from taxation, generally subject to be recalled, 54, 145. by charters of incorporation, 55, 56. implied, in case of all public property, 180-182. of persons in a class taxed, produces inequality, 128, 129. customary, of household furniture, tools of trade, etc., 130, 145. from motives of charity, 130, 145. of church property, school property, etc., 180, 145. constitutional provisions bearing on right to make, 182. of Arkansas, 182. of California, 182, 133. of Illinois, 133, 134. of Indiana, 137, 188, of Iowa, 138. of Ohio, 142, 143. general right of the state to make, 144, 145. is involved in the power to apportion, 145. exists whenever it is not forbidden, 145. general right of the state to recall, 145: intent to make must be clear, 146. must be strictly construed, 146. from taxes, will not apply to special assessments, 147. instances of special cases, 148-152. of corporation, which employs its means for other purposes than those for which its powers are given, 149-151. 622 LAW OF TAXATION. EXEMPTION — continued. principles which should support, 152-154. invidious, not admissible, 129, 130, 153. not to be made without legislative authority, 153. motives cannot support, when not lawfully made, 158. power to make, is a discretionary power, 146. construction of certain exemptions, 151-154. unlawful, may render roll void, 153, 541. unintentional, will not avoid the levy, 154-156. decision upon right to,a judicial act, 550. party entitled to, may replevy property seized, 573. state may make, without regard to municipal power to tax, 253. (See Exempt PROPERTY.) EXEMPTION FROM RESPONSIBILITY — officers perfarming judicial functions have, 550. (See JUDICIAL OFFICER.) of assessors under statutes, 552, 553. EXHAUSTING AUTHORITY — to tax, sometimes by single exercise, 256. abortive attempt is not, 256. influence of custom in such cases, 256. in case of license taxes, 256. to collect taxes, by issue of one process, 295. by boards of review, what is not, 291. EXHIBITIONS AND SHOWS — taxation of, 391. (See AMUSEMENTS.) EXONERATION — from taxation, cannot be compelled by mandamus, 518. (See ABATEMENT.) EX PARTE PROCEEDINGS — tax sales are, 324, 325. necessity for strict compliance with law in such cases, 323-326. EXPENSE — saving of, by joint suit in equity, 545, 546. not of itself a reason for equitable jurisdiction, 546, 547, of local works, assessment of on parties benefited, 416-473, (See AssEssMENTS, LocAt.) EXPENSES OF GOVERNMENT — general, taxation for, 73-75. (See Purposes OF TaXATION.) EXPORTS— taxation of, by the states, limited to inspection fees, 24, 61. not to be taxed by the United States, 73. EXTENSION OF TIME — to collector, whether discharges sureties, 502, 503. INDEX. 623 EXTRA TERRITORIAL TAXATION — state has no power to levy, 121. case of contracts made in state and owned abroad, 65. case of bonds on a road lying in two states, 169. -in case of municipal corporations, 48. whether they can be authorized to tax persons or property beyond their limits, 121-123. EXTRINSIC EVIDENCE — cannot be received on certiorari, 535. F. FACT, ERRORS OF — how corrected in records, ect., (See AMENDMENTS.) not corrected on certiorari, (See CERTIORARI.) personal liability for, (See JUDICIAL OFFICER.) FACULTY — assessment on the, 394. (See PRIVILEGES.) FAILURE OF BENEFITS— will not defeat local assessment, 417. FAIR ON ITS FACE— certificate that is, protects officer who is to act upon it, 554, 557. process that is, will protect ministerial officer, 559, 560. when a process is not, 562, 563. FAITH, PUBLIC— municipal bodies may be compelled to tax for purposes of keeping, 479. (See ManpaMvs.) FALSE DESCRIPTION — of land in assessment, whether may be rejected, 282, 283. (See DESCRIPTION.) FALSE RETURNS — liability of officer for, 196. FARES ON RAILROADS — (See Gross RecErpts; TOLLS.) FARMING THE REVENUE — what is, 300. not admissible in this country, 300. FAVORITISM — in exemptions, 153. (See Inviprious ExEMPTION.) 624 LAW OF TAXATION. FEDERAL COURTS — (See Counts oF THE UNITED STATES.) FEDERAL LICENSES — grant and force of, 414, 415. do not displace state regulations, 406, 415. FEDERAL TAXATION — (See UNITED STaTES.) FEE SIMPLE— is usually valued, instead of separate estates, 288. separate payments on separate interests, 289. is usually sold in selling lands for taxes, 351. FEES — for licenses, (See LicENsE FEES.) for inspection, (See INSPECTION.) FEMALES — taxability of, 45. (See DowrEss; MarrrED Woman.) FERRY BOATS — taxation of, 270. FICTIONS OF LAW — are not to work injustice, 381. the doctrine applied to case of adverse possession, 381. application of, where two acts done at same time, 569. FIGURES IN VALUATION — without dollar mark, (See DotLtaR Marx.) FILING OF ASSESSMENT — requirement of, must be complied with, 267. FINALITY — of judgment as to facts covered by it, (See JUDGMENT.) of assessment as to value of property, (See ASSESSMENT.) of legislative action as to purposes of taxation, (See Pusiic PURPOSES.) FINES AND PENALTIES— (See PENALTIES.) FIRE, PREVENTION OF — taxation for, 102. FIRE ENGINE — taxation by town for, 98. FISCAL AGENT — of United States, not taxable by states, 58. INDEX, 620 FLORIDA — taxation ot property in, must be by value, 485. FORCE— taxes collected by coercion, may be recovered back if illegal, 569 what constitutes, 569. (See VOLUNTARY PAYMENTS.) FORCED CONTRIBUTIONS — distinguished from taxes, 2. taxes levied without apportionment are, 180. tax levies where the statutory provisions are disregarded are, 260. FORECLOSURE OF REDEMPTION — statutes for, must be strictly performed, 365. notice required for, must be given, 365, 366. right to, cannot be waived by any but the party himself, 365, 366. must be given officially, 366. should be in writing, 266. judicial proceedings for a, 364. must be strictly pursued, 364. do not apply to sales for municipal taxes, unless so expressly pro vided, 364. FOREIGN BONDHOLDER— not taxable in the state on his bonds, 15, 16. FOREIGN CORPORATIONS — doing business in state must submit to its conditions of taxation, 44. are not citizens, 65. owning a road in two states, taxation of, 168. FOREIGN RESIDENTS — (See NoNRESIDENTS.) FORFEITURES— (See PENALTIES.) FORFEITURES OF PROPERTY— provisions by law for, in case of delinquent taxes, 315, 316. question of legislative competency to make, 316. decisions thereon in several states, 316. intent to create a forfeiture must be clear, 317. meaning of the term, 317, 318. sale, no more than a forfeiture, gives a judicial hearing, 318. if forfeiture admissible, questions of compliance with the law would be open afterwards, 319. proof of regularity of proceedings in case of, 319. statutes for, construed strictly, 317. delay in returning list, when will defeat, 317. FORMAL DEFECTS — (See AMENDMENTS.) FORMS — prescribed by statute, necessity for following, 337. in case of collector’s return, 307, 308. 40 626 LAW OF TAXATION. FORMS — continued. in the authentication of the assessment, 289, 290. in the warrant for collection, (See CoLLEcTOR’s WARRANT.) in case of tax deeds, 353, 362. when intended for benefit of taxpayers, 216. FORTIFYING TITLE— right of, by buying at tax sale, 347-349. FRANCHISES — may be taxed as well as persons, 15. in what cases taxation is just and in what not, 25. granted by congress for federal purposes, not taxable by states, 58. what granted by congress are taxable by states, 60, 61. provisions in charters regarding taxation of, 55. valuation of, for taxation, 185-187. may be taxed though the property is taxed also, 165, 168, 170. application in case of, of the presumption against duplicate taxation, 166-168. : when exemption of, from taxation will exempt property also, 171. may be taxed though capital invested in government securities, 58. exemptions of, from taxation, how they affect special assessments, 148-152, consolidation of, effect on taxation, 151. exemptions of, does not exempt property, 171. taxation that would annihilate, may be enjoined in equity, 539. (See Bangs; NationaL Banks; RaiLRoaD COMPANIES.) FRANCHISE, ELECTIVE— (See ELECTIVE FRANCHISE.) FRAUDS— in assessment, may justify an injunction, 157, 528. on the federal revenue, enumeration of, 309-313. in tax sales will avoid them, 339-340. in redemption, may be relieved against, 367. of contractor, no defense to assessment, 468, 469. conditions may be imposed when tax is enjoined for, 536-539. do not necessarily exist where tax is illegal, 589. relief against, where they deprive parties of substantial rights, 547. FRAUD, CONSTRUCTIVE — in tax sales, renders them void, 341. instances, of purchase by the officer himself, 341. of purchase by tenant who should have paid the tax, 345. of purchase by the mortgagor, 345. by tenant in common, 346. by one whose land was grouped with that of another, 346, 347. by agent buying the principal’s land, 347. by any one whose duty it was to pay, 347. case of the mortgagee, 347. case of an adverse claimant, 348-851. INDEX. €27 FRAUDULENT COMBINATIONS — at tax sales, render them void, 839. one not aware of them, not affected thereby, 340. FRAUDULENT CONTRACTS — those in fraud of the revenue are, 299. FREE BRIDGE— taxation to establish, 94, 210. FREE SCHOOLS— taxation, 84-88. (See EpucaTion.) FREEDOM, PRINCIPLES OF— (See CONSTITUTIONAL PRINCIPLES.) FREIGHT— taxes on, 61-63. on the carriers of, 388. FRONTAGE — assessment by the, for local improvements, 451-464. (See AssEssMENTS, LOCAL.) FUND, SPECIAL — payment for local improvement from, 462, 463. FUNDAMENTAL LAW— (See ConsTITUTIONAL PRINCIPLES.) G. GAMES — (See AMUSEMENTS.) GAMING IMPLEMENTS— taxation of, for the purpose of prohibition, 10. impositions on keepers of, under police power, 4038, 404. GAS LIGHT— special assessments to provide, 428. GAS PIPES— laid in streets, are taxable as machinery, 272. GAS WORKS— taxation for, 99. GENERAL EXEMPTIONS — from taxation, do not apply to local assessments, 146-148, right to recall, 146. (See EXEMPTIONS.) GENERAL LAW — for municipal taxation, 210. modifying local powers by, 255. 628 LAW OF TAXATION. GENERAL POWERS — to tax, are strictly construed as against municipalities, 209-211. what they cover in case of towns, 211. will not authorize special assessments, 418. to sell lands, construed strictly, 469 to levy fees under police power, will not justify taxes for revenue, 396 397, 408, 409. construction of, in general, (See ConstRUCTION oF Tax Laws.) - GENEROSITY — not legally demandable of tax payer, 153. GEORGIA — provisions for uniform taxation in, 183. are not violated by taxes on business, 183. provisions for ad valorem taxation, 133, 485. GIFTS — taxes cannot be laid for making, 78, 86, 90. the rule applied to manufacturing corporations, 78. as pensions, may be made, (See PENSIONS.) as bounties for military service, (See BounrTIEs.) GOLD — states may collect taxes in, 12. GOOD FAITH — action in, by members of board of equalization, gives no right of action, 530. absence of, in assessors, does not render them personally liable, 556, 657. GOODS — taxation of, (See PERSONAL PROPERTY.) levy of distress upon, for satisfaction of taxes, 301. must be the proper warrant for, 301-2. not liable to constitutional objections, 302. case of levy on property of one not taxed, 302, 303. replevin in such case, 573. demand to be first made, 304. personal notification to party concerned, 304. notice of sale, etc., 304. authority in making, must be strictly pursued, 304. what will render officer trespasser ad initzo, 304, 563, 564. municipal corporations cannot authorize without statutory authority, 304. sale of, not usually enjoined, 538-540. levy on, is presumptive satisfaction of tax, 539. when collector liable for, 559-564. INDEX. 629 GOODS — continued. payment to relieve from seizure, is payment under duress, 568. so is payment after threat of seizure, 569. exhibition of process is such threat, 569. sale of, for illegal tax, gives right of action, 569. GOVERNMENT — taxes, the property of, 1. taxing power essential to, 3, 4. maxims which should govern in taxing, 7, 8. other purposes than revenue in taxing, 10, 11. may collect taxes in kind, 12. is to give protection for taxation, 14-17. customary taxes by, 18-31. general right of to tax, 30. division of powers of, 32. checks and balances of, 33. representative responsibility in, 178. (See REPRESENTATIVES.) . agencies of, are exempt from taxation, 56. property of, not within the intent of tax laws, 130, 131. public domain, not taxable, 59, 60. general purposes for which it may lay taxes, 67-103. (See Pusiic PURPOSES.) United States, taxation by, (See Uni1tTED STATEs.) municipal, taxation by, (See MunicrpaL CORPORATIONS.) can only exercise its powers through officers, 184. contracts by, for exemptions, (See Contracts; EXEMPTIONS.) principles which should govern its taxation, (See PRINCIPLES OF TAXATION. can only act through officers, 184. construction of revenue acts of, 197-222. may tax all kinds of business, 384. may regulate rights and occupations, 306-415. has general control of its municipalities, 474. powers of, are liable to abuse, 212. any, is better than none, 212. political remedies for wrongs in, 575. privilege of choosing representatives in, is insignificant in value as com- pared with other rights, 45. powers of, are held in trust, 539. GOVERNMENT OF THE STATES — (See LuGIsLATIVE POWER; STATES.) GOVERNMENT OF THE UNITED STATES — (See Unirep Starzs.) 630 LAW OF TAXATION, GOVERNMENT STOCKS — (See Pustic SECURITIES.) GOVERNOR OF STATE— whether subject to mandamus, 5238. GRADE OF STREETS — assessments for, 421. right to change, 401. (See AssEssMENTS, LOCAL.) - GRADUATING LICENSE FEES — in reference to the size of town, 179. as between classes of lawyers, 179. in case of liquor dealers, 180. general methods of, 384, 385. right to make when no restrictions are imposed, 387. in case of merchant’s sales, 160. GRANT — of lands for taxes, (See Tax DEED.) of the power to tax, (See PowER TO Tax.) of franchises, (See FRANCHISES.) of taxes by the people’s representatives, (See REPRESENTATIVES.) of taxes by the people, (See Voting THE Tax.) of exemptions, (See EXEMPTIONS.) of power of local taxation, 51, 209-211. of power to lay local assessments, must be special, 418. of privileges, (See PRIVILEGES.) of the power to tax business, 387. of power to make exemptions, is not compulsory, 146. GREAT BRITAIN — early taxation in, 26, 27. excise fees in, 31. land tax of, 18, 19. hearth and window taxes in, 19, 20. GRIEVANCE, PRIVATE— remedies for, at the common law, (See Common Law REMEDIES.) remedies for, in general, (See REMEDIES FOR ExcEssIVE AND ILLEGAL TAXATION.) joinder of complaints for, (See Joint CoMPLAINTS.) INDEX. 831 GRIEVANCE, PRIVATE — continued. must exist to authorize private party to apply for mandamus, 522. does not exist unless one is injured, 154. GRIEVANCE, PUBLIC — what may be remedied by mandamus, 528. in case of threatened illegal corporate action, 548. where municipal bodies do not meet their obligations, 479, 480, 524. GROSS RECEIPTS — taxation of, 64, 187, 188. GROUPING OF LANDS— not admissible, where statute requires them to be separately assessed, 279. is not a mere irregularity, 279. reasons for not allowing, 280. statute against, is mandatory, 280. what to be considered separate parcels, 281. in valuation, not admissible, 287. what amounts to a, 287. in making sale, renders sale void, 341. reasons for the rule, 342, 3438. when several lots may be treated as one parcel, 342. GUARANTY — none by municipalities, of correct action on the part of their officers, 566, (See CavEAT Empror.) GUARANTIES, CONSTITUTIONAL— (See CONSTITUTIONAL PRINCIPLES.) GUARDIAN — tax on, for the minor’s estate, 271. H. HACKMEN — taxation of, 391. HARBORS — taxation for, 96. special taxation of municipalities for, 484, 487. HEAD MONEY — imposed in respect to immigrants, 568. HEALING ACTS what admissible, 225-282. liability of to abuse, 226. retroactive, forbidden in some states, 226. may be special, 226. must not be invidious, 226, 227. cannot cure want of jurisdiction, 227. 632 LAW OF TAXATION, HEALING ACTS — continued. may heal irregularities, 227. cannot make good what could not originally have been authorized, 227 instances of defects not cured by, 227, 228. unlawful discriminations cannot be made good, 228, 229. sale of wrong land cannot be validated, 228. general principle as to what may be made good, 229. may be prospective, 230-282. instances of prospective curative laws, 231, 282. may apply to pending suits, 231, 232. not to cases which have passed into judgment, 282. HEALTH — taxation for protection of, 101. draining lands for, 402, 428, 424. whether health must be a purpose of drainage assessments, 423, 424, board of, is a state functionary, 477. HEARING— right to, not to be taken away retrospectively, 229. is of right in tax cases, 265, 266. provisions of law for, are mandatory, 266, 267. alterations in assessments without opportunity for, are illegal, 268, 541. notice of, must be given as statute provides, (See Notice.) in review of assessment, parties dissatisfied may bave, 528. if not applied for, all remedy is usually lost, 529. decision upon, is-final, 529. on certiorari, only extends to jurisdiction, 532. ‘ (See CERTIORARI.) when may be had in equity, (See Equity.) general right to, (See Law oF THE LAND.) HEARTHS — taxation of houses by, 20. HEIRS — assessment of estate to, 270, 278. (See EstaTEs OF DECEASED PERSONS.) HIGH SCHOOLS— taxation for, (See EpucaTIon.) exemption of buildings for, (See EXEMPTIONS.) HIGH WATERS— protection against, (See LEVEES.) INDEX. 683 HIGHWAYS — duty of government to provide for, 94. different varieties of, 94. chartering corporations to make, 94. principles applicable to, whether they apply to railroads, 95-97. cannot tax to make, unless the land has been appropriated, 97, 98. methods of providing for construction of, 106. taxing districts for, 106. exceptional burdens for construction of, 107. special assessments for, 108. are state works, 106, 109, 110, 428. are constructed by localities, 109, 110,419. labor contributions for, 12. requirement of, in the nature of a police regulation, 420. states may compel municipalities to construct, 478. whether this principle can apply to a road exceptionally expensive, 487-489. apportionment of cost of, between counties, etc., 478. special districts for, 112, 114. (See Brinces; FREE Bripge; PLANKROADS; STREETS; TURNPIKES.) HIGHWAY LABOR— requirement of, 12. is in nature of police regulation, 420. right to perform, not to be taken away by officer, 541. decision on exemption from, is a judicial act, 550. officers not liable for error in, 550. commutation for, 172. HOMESTEAD — exemption of, from taxation, 145. redemption of, from sales, 366. ~ HORSES — taxation in respect of, 21. HOUSES — taxes on, measured by rents, 19. by hearths, 20. by windows, 20. (See BeTTERMENTS; IMPROVEMENTS.) HUSBAND AND WIFE— (See HomestEaD; MarRIED WoMmAN.) I. IGNORAN CE— of one’s rights, in paying an illegal tax, no ground for recovery back, 567, 568. different ruling in Kentucky, 567. 634 LAW OF TAXATION. IDENTIFICATION — of land in tax proceedings, (See DEscRIPTION.) ILLEGAL ACTION — of officers, presumption that it will not be persevered in, 544. remedies for, (See REMEDIES FOR EXCESSIVE AND ILLEGAL TAXATION.) ILLEGAL CONTRACTS — those in fraud of the revenue are, 299. will not be enforced, 299. whether the rule applies to contracts in fraud of foreign revenue laws, 299. ILLEGAL OCCUPATIONS — taxation of, under internal revenue law, 406, 414. may be taxed by the state, 403, 404, 406. ILLEGAL TAXES — ‘ collector may refuse to collect, 500. whether he should raise question of illegality, 500, 501. if collected, must be paid over, 498. cannot be validated retrospectively by the legislature, 375. those laid for private purposes are, 42. (See Purposes oF TaxaTION.) those are, which violate contracts with the state, 52-56. or impair the obligation of contracts, 65. (See ConTRACTS.) or which are laid in disregard of constitutional provisions, 66. or which the states lay on foreign or inter-state commerce, 61-64, (See COMMERCE.) or which are laid without apportionment, 175. or otherwise than by official action, 184. or by local boards, etc., without legislative authority, 209. or in disregard of mandatory provisions of statute, 212-219. or which are in excess of statutory authority, 295-297. may be abated, 528. may be contested without applying for abatement, 528. cases of errors which constitute, 534, 541. enjoining collection of, 536. not usually permitted on grounds of illegality alone, 536, 588. combined with legal, will only be enjoined on the legal being paid, 537, 588. will be enjoined when they constitute cloud on title, 542. (See Equity.) protection of collector in enforcing, 559-562. liability of collector of the customs for enforcing, 564, 565. are not uecessarily or usually fraudulent, 539. error in the assessment will not of itself make, 540. INDEX.. 685 ILLEGAL TAXES — continued. liability of town, etc., for, after it has been paid over, 565. only exists when the tax is a nullity, 566. does not exist if tax voluntarily paid, 566, 567. what are voluntary payments, 568, 569. form of action upon, 569, 570. recovery on, is limited to money paid, 570. recovery where tax only in part illegal, 571. liability of assessors for levying, 570. of coilector for enforcing, 570. remedy by replevin in case of, 572, 578. ‘estoppel of party taxed, by his conduct in some cases, 578. remedy by mandamus, 574. : the political remedy sometimes the only one, 575. ILLEGALITIES — correction of, by certiorard, 580, 583. (See CERTIORARI.) in municipal organization, may be cured by delay, 580, 549. enjoining collection in case of, 536, 538, 540, (See Insuncrion.) protection in case of, where officer is to act upon certificate, 554, 557. or upon process which is fair on its face, 559-562. ILLINOIS — constitutional provisions for equal taxation in, 183-186. taxation of property must be by value, 435. constitutional provisions affecting special assessments, 487. special fund for assessments in, 466. IMMIGRANTS — tax in respect of, is a tax on commerce, 63. assessment of head money in respect of, 568. IMMUNITIES — of citizens of the several states, not to be abridged in taxation, 64, 65. IMPAIRING CONTRACTS — (See ContTRACTS.) IMPARTIAL TRIBUNAL— right of every party to a hearing before, 527. (See Huarine; Law or THE LAND.) IMPLICATIONS — are against contract not to tax, 52, 53. against duplicate taxation, 165-171. (See DupiicaTE TaxaTION.) against exemptions from taxation, 145-147. (See EXEMPTIONS.) in favor of correctness of legislative apportionment, 179. in favor of legislative action as to purposes of taxation, 69. 636 LAW OF TAXATION. IMPLIED EXEMPTIONS — from taxation, what are, 180, 181. IMPOLITIC TAXES — imposition of, 387. IMPORTED PACKAGES — (See IntporTERs.) IMPORTERS — tax on, is a tax on commerce, 62, 63." tax by states on goods imported, when admissible, 62, 63. IMPORTS — taxation of, a customary resource of government, 21. not to be taxed by the states, 61. what is a tax upon, 62, 63. IMPOSITIONS — special exemptions from, construed, 148. exemption from “civil imposition,” construed, 149. IMPOSTS — what are, 3, 24. discrimination in, 74. unlawful, may be recovered back, 564, 565. unless paid without protest, 567, 568. exemption from “ tax or impost,” 144. IMPRISONMENT — for taxes may be authorized, 14. this not imprisonment for debt, 14. not now generally allowed, 301. may be provided for in case of license fees, 301. IMPROVEMENT — of wet lands, special assessments for, 428-425. must have reference to the public interest, 423, 424. the public health not the sole consideration, 423, 424. (See Drarns.) IMPROVEMENTS — (See BETTERMENTS.) discrimination in favor of, 184. INADEQUACY OF PRICE — will not defeat tax sale, 345. is usually found to exist, 3238-3265. INADEQUATE RELIEF — legal remedies afford, in some cases, 541, 542. remedy in equity in such cases, 541, 542. in case of cloud upon title, 542. in case of one in possession whose land another claims, 544. in case of threatened irreparable injury, 538, 539. (See Equity.) INDEX. 637 INCIDENTAL BENEFITS — will not support taxation, 90. (See Manuracturine ENTERPRISES.) will not support special assessments, 457. (See BENEFITS.) to those not taxed, will constitute no objection to a tax, 127, 128. INCIDENTAL INJURIES — from exercise of lawful powers cannot entitle a citizen to compensation, 91. compensation sometimes made in case of, 91. INCOME — taxes on, 20, 168, 170. meaning of, 160, 272, 392. difficulty in adequate enforcement of tax on, 20. reasons which render it unequal, 20. taxes should be in proportion to, 16. exeraption of, from taxation, how construed, 168. of a corporation may be taxed, though its dividends are exempt, 170. tax upon, in lieu of tax upon property, 172. INCONVENIENCES — to result from setting aside a tax levy, may be reason for refusing a certi- orar?, 580. must be considered in deciding upon injunction, 536. from delays in collection, may justify summary remedies, (See Summary REMEDIES.) or the taking away of common law remedies, (See REPLEVIN.) INCORPORATIONS — (See CoRPORATIONS.) INCREASE — in assessment without notice, 268. this not a mere irregularity, 541. INCUMBRANCE — when an illegal tax may constitute an apparent, 542. removal of, in equity, 542-544. (See CLoup uron TITLE.) taxation of, (See MorTGaGe.) INDEBTEDNESS — public, taxation for, 102. incurred for illegal object is void, 102. private, may be taxed, (See Bonps; CREDITS.) of municipalities, mandamus to compel payment of, 524-526. compulsory taxation by state to meet, 479. payment of taxes on, as a condition to recovering, 320. municipal, as a tender for taxes, 418. 6388 LAW OF TAXATION. INDEMNIFICATION — of municipal officers acting in good faith, 91, 92. legislature sometimes compels, 91, 480. of purchaser at tax sale, municipalities not bound to, 569. of losers by riots, 480. of losers by exercise of taxing power, 91, 92. INDIAN LANDS— taxation of, after Indian title extinguished, 275. INDIAN TRIBES — trade with, not taxable by states, 62. INDIANA — constitutional provisions for equal taxation in, 187, 138. requiring property to be taxed by value, 4385. -affecting special taxation, 487, 488. special fund for assessments ‘in, 467. INDIRECT TAXES — what are, 5. not illegal, 392. may be equally just with any other, 6. what may be unjust, 6. on luxuries, policy of, 6. INDIVIDUAL RIGHTS — protection of, by constitutions, (See CoNSTITUTIONAL PRINCIPLES.) INELIGIBILITY — to office, effect of, if the party acts, 186. (See Orricers DE Facto.) INEQUALITY — is meant to be avoided in taxation, 2, 124. apportionment to secure against, 126, 127. (See APPORTIONMENT.) cannot always be prevented, 124, 126, 128, 160.: may exist in case of single tax, 124. why a tax on luxuries not subject to objection for, 125. . does not render a tax illegal, 125, 128. in the case of school taxes on nonresidents, 127. does not necessarily exist where tax is restricted to few subjects, 128. discriminations which produce, not necessarily unlawful, 128. are unlawful when special and invidious, 128, 129, 180, 152-154, 158. taxing one kind of corporations and not others, may not cause, 129. constitutional provisions designed to guard against, 132, 144, produced by exemptions, (See EXEMPTIONS.) accidental omissions of property, do not invalidate the levy, 154, 156. fraudulent assessments, relief against, 157, 158, 547. INDEX. 639 INEQUALITY — continued. caused by duplicate taxation, 158, 165. (See Durricate TAXATION.) taxing land and the mortgage upon it, 159. taxing income and the property it is invested in, 160. presumption against intent to cause, in tax laws, 165-171. produced by granting monopolies, (See Monorottss.) must result from frequent changes in legislation, 174. in the case of license fees, 412. purposely caused in case of prejudicial employments, 396, 404. abatement of taxes in cases of, 527. (See ABATEMENT.) caused by unequal assessments, cannot be corrected by certiorar?, 583. or in equity, when fraud is not charged, 540. no remedy against assessors for, 550-557. unless they deprive the tax payer of some legal right, 554. does not necessarily result from illegalities, 566. political redress the principal security against, 575. INFANTS — are taxable, though they have no voice in representation, 45, 46. the exceptional benefits received from government by, 16, 17. can only redeem from tax sales on the statutory conditions, 364, 365. taxation of property of, to guardian, 271. INFERIOR JURISDICTIONS — corrections of errors of, by cerizorart, 530. (See CERTIORARI.) the remedy by prohibition in case of, 574. errors of judgment in, cannot be corrected by mandamus, 514. may be compelled by mandamus to perform ministerial action, 522, 523. conditions to appeals from, 374. INFORMALITIES — (See Errors; IRREGULARITIES.) INHABITANTS — (See RESIDENCE.) INHERITANCES — taxes on, (See SuccESSIONS.) INJUNCTION — the available remedy in equity in case of illegal tax, 536. , not awarded unless the case comes under some recognized head of equit- able jurisdiction, 536. mischiefs that may flow from awarding, in tax cases, 586, 587. equitable conditions sometimes imposed, 537, 538, 541. not usually awarded in case of personal taxes, 538. awarded in cases of irreparable injury, 589, 548 640 LAW OF TAXATION. INJUNCTION — continued. by some courts in any case of illegal municipal taxation, 5388-540. not awarded against political action, 540. nor in case of merely excessive assessments, 540. nor of merely irregular taxation. 540, 541. not generally awarded in case of personal tax in respect of lands, 542. joint bills for, 545-547. not awarded where the remedy at law is adequate, 538, 542, 546, 548. to restrain fraudulent assessments, 547. to restrain illegal corporate action, 548. whether taxpayers can file bill for, 548, 572. irreparable injury in such cases, 548, 549. effect. of delay in applying for remedy, 549. what will estop one from applying for, 573. INJURIES WITHOUT REMEDY — must be cases of, under tax laws, 575. (See INEQUALITY.) INJURY — from riots, municipalities may be compelled to indemnify, 480. from an exercise of the taxing power, may be indemnited, 91, 92. INJUSTICE — of taxation cannot render it void, 3. of legislative action, judiciary cannot take cognizance of, 35, except in case of wanton perversion of power, 71. impossibility of avoiding, in taxation, 124-129. intentional, may render tax illegal, (See Invip1ous AssEssMENTS; INvipIoUS EXEMPTIONS.) resulting from accidental omissions, (See OMISSIONS.) by the state, will not be presumed, 508. of tax, no excuse for county treasurer for not proceeding with, 521. what will render tax void, (See ILLEGAL TAXES.) what cannot be validated by legislation, (See CuRATIVE Laws.) abatement of tax in cases of, 527. reviews for the correction of, 528, 529. certiorari not a remedy for, (See CERTIORARI.) remedy in equity in case of intentional, 547. of state in enforcing local taxation for local purposes, 4938-495. INQUEST OF OFFICE — whether essential in forfeitures for delinquency, 316-819. (See ForFEITURES.) INQUISITORIAL PROCEEDINGS — necessary in case of tax on income, 20. objections to, 20, 26, 27. INDEX, 641 INQUISITORIAL PROCEEDINGS — continued. cannot be effeciual, 20. in case of hearth taxes, 20. in case of taxes on personalty, 26, 27. INSPECTION LAWS — of states, fees under, 61. (See Heap Money.) INSPECTORS OF ELECTION — not liable for erroneous exercise of judicial functions, 551. (See JupicraL OFFICERS.) INSTITUTIONS OF LEARNING — exemption of, from taxation, (See EXEMPTIONS.) INSURANCE COMPANIES — whether inequality is produced in singling out for taxation, 129. capital of mutual, what is, 278, 394. surplus of, what is, 392. taxes on foreign, 393. guaranty stock of mutual, 393, 394. English joint stock, taxation of, 394. (See CoRPORATIONS.) specific tax on, 210. INTEGRITY — statutes to protect officers acting with, 552, 653. whether want of, will render assessors liable, 556, 557. of officers, the chief protection in tax matters, 575. INTELLIGENCE — taxes upon, (See NEWSPAPERS.) of public officers, reliance upon in taxation, 575. INTENT— must govern in construction of statutes, 198. if plain, rules of interpretation are unimportant, 199. aids in arriving at, (See ConNsTRUCTION.) to defraud, (See Frawp.) of party in describing lands, may be aided, 282, 283. whether this principle applicable to descriptions in assessment roll, 282~- 286. malicious, whether it will render assessors liable, 556, 557. INTEREST — taxes on, 22. what recoverable in suit for illegal taxes paid, 571. imposed as a penalty for delay in paying taxes, 318-315. requiring county to pay, on debt apportioned to it, 92. 41 642 LAW OF TAXATION, INTERESTS, SEPARATE— in lands, sometimes separately assessed, 289. assessed together, separate payments on, 289, liens, etc., in case of, 3806. purchases by one joint owner, 346, 347. redemption in cases of, 365, 367. INTERNAL IMPROVEMENTS — taxation for, 94-97. grounds on which it must be supported, 96, 97. compulsory, not admissible, (See Computsory Loca TaxaTIon.) INTERNAL REVENUE— penalties for frauds upon, 309-313. construction of statutes for, (See ConsTRUCTION OF Tax Laws.) - liability of collector of, 564. (See COLLECTOR OF TAXES.) taxes laid for, (See Excise TaxEs; TAXEs.) INTERPLEADER — bills of, may sometimes be necessary, 542. INTERPRETATION — of revenue statutes, should aim at the intent in passing them, 198. aids to, where intent is not apparent, 199. rules for reaching, 197. (See ConsTRUCTION.) INTOXICATING DRINKS — taxation of, as luxuries, 23. frauds and evasions when taxes heavy, 24. taxation of manufacturers and dealers in, 390. license to keep tavern, whether it includes license to deal in, 391. laws prohibiting dealing in, 404. may be taxed, though the sale unlawful, 404-406. taxation of, under the police power, 412. federal licenses to dealers in, 404, 414. INTRUDERS into office, who are, 186, 187. distinguished from officers de facto, 186, 187. acts of, are void, 186, 187. are estopped from disputing their authority when called upon to acco”: for moneys collected, 191. INVIDIOUS ASSESSMENTS — illustrations of, 129. relief in equity from, (Sce InguNcTION.) INDEX, 643 INVIDIOUS CURATIVE LAWS— are not admissible, 225-227. illustrations of, 226, 227. INVIDIOUS EXEMPTIONS — are not admissible, 152. grounds on which exemptions should be supported, 152, 158. selecting particular individuals, are void, 153. selecting particular parcels of property, 158, 154. will not make one’s tax void if it is not thereby increased, 154. in case of manufacturing enterprises, 129, 180. . illustrations of, 129. INVOLUNTARY PAYMENTS — of illegal taxes, recovery back in cases of, 565. those made under protest are deemed to be, 567. or under threat of distress, 569. or on presentation of legal process, 569. (See VOLUNTARY PAYMENTS.) collection of interest in case of, 571. IOWA — constitutional provisions for equal taxation in, 138. do not admit of exemptions of corporate property, 188. special fund for assessments in, 467. IRREGULAR ASSESSMENTS — are not to be corrected on certiorart, (See CERTIORARI.) will not be enjoined, (See INJUNCTION.) do not render assessors trespassers, 555. (See ASSESSORS.) towns are not liable for, 565. (See IRREGULARITIES.) IRREGULAR TAXES — are not void for that reason alone, 540, (See InnEGaL TAXES.) IRREGULARITIES — methods of curing in tax cases, 223-243. cannot be cured by conclusive rules of evidence, 223, 224. or by legislative mandates, 224. may be cured by special curative laws, 225-229. or by prospective laws, 230. (See Curative Laws.) or by reassessing the tax, 282, 2838. or on a judicial hearing, 233, 234. curing by amendment, 234-248. (See AMENDMENTS.) in the execution of directory statutes, may be overlooked, 219, 220. 644 LAW OF TAXATION. IRREGULARITIES — continued. clerical, may be disregarded, 234, 562. conditions sometimes imposed, to the taking advantage of, 872, 878. in cases of judgments for taxes, do not render the proceedings invalid, 362 but may authorize a reversal, 362. what not mere irregularities, 360, 361, 539. not corrected on certzorart, (See CERTIORARI.) not a ground for relief in equity, (See Equiry; INJUNCTION.) IRREPARABLE INJURY — a tax which will cause, may be restrained, 538, 539. instances of a tax which might destroy a franchise, 539. distress of goods is not supposed to cause, 538, 539. exceptional cases, 539. IRREPEALABLE EXEMPTIONS — states may grant, 52-56. necessity of consideration for, 54. by corporate charters, 55. do not exist where right to repeal is reserved, 56. implication against intent to grant, (See EXEMPTIONS.) ISSUING LICENSES — proceedings on, 413. conditions imposed, 4138. whether they are of right when the conditions are complied with, 413. J. JOINT BOARDS — must meet and consider subject referred to them, 193. separate action of members is invalid, 193. custom cannot change this rule, 193, 194. if only two of three members are chosen, they cannot act, 193. majority may act if all cannot agree, 194. : presumption in favor of action of, 194. are subject to the writ of mandamus, 522, 523. (See Boarps oF EquaiizaTion; Boarps of REVIEW; SUPERVISORS BoaRrD OF.) JOINT COMPLAINTS — where an illegal tax affects all tax payers alike, 530, where two or more are alike affected, 5-5. cannot be entertained where the grounds of complaint are distinct, 545. reasons favoring them, 545, 546. cannot be entertained on sole ground of saving expense, 546, 547. by tax payers to restrain political action, 548. INDEX. 645 JO.NT OWNERS — assessment of property of, 279. when interest to be separately assessed, 288, 289. separate payment of taxes by, 289. ‘ redemptions by, 367. separate judgments against for taxes, 362. separate purchases by, (See Tenant In Common.) JUDGMENT — compelling payment of, by mandamus, 524, 525. by federal courts, 525, 526. of board of review, is final, 529. cannot be set aside by statute, 232. JUDGMENT, ERRORS OF — do not render taxes illegal, 468. do not render an officer liable, (See JupIcIaAL OFFICER.) JUDGMENT FOR TAXES — provisions for in some states, 357. preliminary review of proceedings, 357, 358. court must have jurisdiction, 358, jurisdiction must appear by the record, 358, 359. report to the court as a basis for its action, 359. notice of application for judgment, 359, 360. defects which avoid the proceedings, 360, 361. who may appear and defend, 360. irregular action will not avoid, 362. judgment in case of joint owners, 362. is void if no jurisdiction, 362. proceedings subsequent to, 362. recitals in record, 362. JUDGMENT OF ONE’S PEERS — the guaranty of, in magna charta, 36-40. (See ConstiruTionaL PrincreLes; Jury Tria; Law or rae Lap.) JUDICIAL ACTION — assessors exercise, in valuing property, 550-582. is had by boards of equalization, 291. by boards of review, 291. by highway officers in some cases, 550, 551. by appraisers of damages, 551. by inspectors of election, 551. by school directors, 551. by township boards, 551. is void if it is usurped, 554-556. ministerial officers do not exercise, in enforcing taxes, 40, 41. (See JUDICIAL OFFICERS.) 646 LAW OF TAXATION. JUDICIAL CORRECTIONS — of tax proceedings, sometimes provided for, 238, 234. on certiorari, (See CERTIORARL) by allowing amendments, (See AMENDMENTS.) JUDICIAL DUTY — discretion in exercise of, cannot be controlled by mandamus, 514-516, performance of, when*may be compelled, 414. liability in performance of, (See JUDICIAL OFFICERS.) JUDICIAL OFFICERS — are not liable for errors of judgment, 550. reasons for the exemption, 550. the principle extends to all who exercise judicial functions, 550. instances of such officers, 550, 551. the principle applies to assessors, 051, 552. what it protects them against, 552, 553. are liable for exceeding their jurisdiction, 553. instance, of personal tax on nonresident, 553. or of assessing a tax never voted, 554. or an excessive tax, 554. or a sum voted for an illegal purpose, 554, are liable for depriving a party of a substantial right, 554. distinction between error of judgment and excess of jurisdiction, 555, 556 whether malice will render liable, 556, 557. JUDICIAL POWER— what it consists in, 40, 41. not to be exercised by the legislature, 224, 225. (See JUDICIARY.) JUDICIAL PROCESS — (See CERTIORARI; JUDICIARY; MANDAMUS.) JUDICIAL SALES — sometimes provided for in tax cases, 357. proceedings to, are in rem, (See JUDGMENT FOR TAXEs ) JUDICIARY — can afford no redress against oppressive taxation, 4. the levy of taxes does not belong to, 33-35. cannot question the policy of tax laws, 34, 74. can only restrain excess of jurisdiction, 35, 71, 104-108. as where tax legislation is merely colorable, 36. or has private purposes in view, 67-69. (See REMEDIES FOR EXCESSIVE AND ILLEGAL TAXATION.) is sometimes vested with statutory power of review, 36. must presume in favor of legislation, 69, 70. INDEX. 647 JUDICIARY — continued. ' : is not to judge of legislative motives in taxing, 75. is sometimes authorized to correct irregularities, 233, 234. power of, to permit amendments in tax cases, 235-242. cannot control discretionary local powers of taxation, 249, 250. sitting to revise tax proceedings, must observe statutory regulations, 266 whether forfcitures must be declared by, 316-319. (See FoRFEITURES.) cannot redress wrongs in special assessments, 461. cannot limit the acknowledged powers of the legislature, 4. right to a hearing by, (See Law or THE Lanp.) officers of the, not personally liable for errors, (See JupicraL OFFICERS.) judgments by, for taxes, (See JUDGMENTS FoR TAXES.) power to compel performance of official duty, (See Maxpamus.) JURISDICTION — to tax, what gives, 14. extends to all the subjects of taxation, 4. exists where protection is due, 15. may exist in behalf of government de facto, 4, 5. is confined to territorial limits, 42. does not exist in the case of nonresidents, 48. of personalty depends on residence of owner, 48, 269-272. cannot reach corporate shares of nonresident corporators, 48. of states, docs not embrace agencies of government, 56-61. must be limited to the district taxed, 104-106. excess of, in taxation may be restrained, 34. (See JupictaRy.) want of, cannot be cured retrospectively, 227-229. (See Curative Laws.) consent cannot give, in tax cases, 271. necessity for, when judgments are to be taken for taxes, 358, 359. (See JUDGMENT FOR TAXES.) tolevy special assessments depends upon property being benefited, 460, 461. ‘ (See AssEssMENTS, LOCAL.) in summary proceedings, must appear by the recitals, 509, 510. limitations upon, in the nature of taxation, (See LIMITATIONS UPON THE TAxiIna POWER.) limitations specially imposed by constitutions, 66. limitations imposed by the federal constitution, (See ConSTITUTION OF THE UNITED STATES.) of the United States to tax, (See UNITED STATES.) an assessment made without, is void, 529. 648 LAW OF TAXATION. JURISDICTION — continued. certiorari to review questions of, (See CERTIORARI.) municipal bodies must keep strictly within, 535. want of, in judicial officers will render them personally liable, 5538, 555 what constitutes a want of, in assessors, 553, 554. of supervisor, what necessary to, 557, 558. tax laid without, may be resisted, 558, keeping inferior tribunals within, by prohibition, 574. JURISDICTION, INFERIOR — (See INFERIOR JURISDICTION.) JURY TRIAL— guaranty of, in Magna Charta, (See Law or THE Lanp.) not of right under tax laws, 36-40, 302. reasons why it could not be allowed, 37. right of, is not violated by special assessments, 425. summary remedies in tax cases an exception to, 302. not of right on question of collector’s delinquency, 507. is of right when land is demanded of one in possession, 545. where one is entitled to, on demand, that is his remedy for an excessive assessment, 532. JUSTICE — of special assessments, 428, 429. is determined by the law providing therefor, 428. of taxation cannot be determined by the courts, (See JUDICIARY.) claims founded in, will support taxation, 88. municipalities may be compelled to provide for, 480. right of trial of, 481. JUSTICE OF THE PEACE— certiorari to, in case of militia penalties, 533. JUSTIFICATION — of officer by his warrant, (See Process.) of officer by certific: e on which he is to act, (See SUPERVISOR.) of local assessments by the special benefits conferred, 416-418. of taxation by the protection afforded by government, 2, 14. K. KANSAS — special fund for ass -:s. ments in, 466. liability of city in such case, 456. INDEX. 649 KENTUCKY ~— liability of city for special assessments, 467. special fund tor, 467. KIN, NEXT OF — (See SuccEssrons.) Li. LABOR— taxes sometimes made payable in, 12. discrimination in privilege to pay in, 172. on highways, 419, 420. deprival of rights to pay in, 541. LACHES — in applying for certiorari, 431. in objecting to irregular organization of municipal corporations, 549. in bringing suit to recover lands, (See Limitation, STATUTES OF.) when one will be estopped by, (See EstToPPEt.) LAND — taxes on, in England, 18. taxes upon, by value, 26-80. assessment of, for taxation, 275-282. classification of, as seated and unseated, 275. meaning of these terms, 276, 277. classification of, is imperative, 277. changing from one list to other, 237 resident lands, assessment of, 278, 279. separate tracts to be separately assessed, 279-282. what are separate tracts, 281, 282. description, what requisite, 282-286. valuation, must be of parcels separately, 287. is a judicial act, 288. cannot be made by legislature, 288. of separate interests, 288, 289. equalization of, 290. lying in two townships, how assessed, 121, 282. single parcels not to be divided in, 282. forfeiture of, for taxes, 315-319. (See FoRFEITURE.) sale of, for taxes, 805-308, 321-361. requires legislative authority, 305. lien of the tax, 305. not prevented by change in ownership, 306. 650 LAW OF TAXATION. LAND — continued. sale of, of separate interests, 306. municipalities cannot order, without legislative authority, 307. conditions precedent, 307. evidence that tax is unpaid, 307, 308. special authority for, 308 333. payment discharges right to make, 322. or tender, 323. proceedings on, must be regular, 823. is made exclusively under statutory power, 324. insignificant consideration received on, 324, 325. purchaser must show proceedings correct, 826-329. presumptions of regularity in, 829-382. notice of, must comply strictly with statute, 334. (See Notice.) time and place of, 338. competition must be allowed at, 339, 340. officer selling, must not be buyer, 341. separate parcels must be sold separately, 341-348. surplus bond on, 348. excessive, is void, 348, 344. must be made to highest bidder, 344. must be for cash, 344. certain persons may not buy at, 345-351. to state or county, 351, 352. different sales at same time, 352. certificate of, 352. deed on, and recitals in, 3538. the deed as evidence of regularity of, 3538-357. (See Tax DEED.) judicial proceedings for, 857-362. (See JUDGMENT FOR TAXES.) redemption from, 363-370. favored by the law, 363. is a statutory right only, 364. conditions to cut off, must be complied with, 365. foreclosure of, 364, 365. who may make, 366, 367. relief against mistakes and frauds, 367. waiving conditions in, 868. gives no new title, 368. conditions cannot be added to by officer or purchaser, 869. power of legislature over, 369, 370. recovery of, after conveyance, 371-383. statutory conditions upon, 871. requirement that betterments be paid for, 371, 372. and that taxes be paid, 372-374. diaining under the police power, 402. INDEX. 651 LAND — continued. draining by means of special assessments, 423, 424. whether this may be done for improvement merely, 428-425. special assessments upon, (See AssESsMENTS, LOCAL.) sale of, for municipal taxes requires special authority, 469-471. personal liability for taxes upon, 278. where lands have been sold, 306, 307. for special assessments upon, 470-478. can only be taxed within the district, (See Extra TERRITORIAL TAXATION.) discriminations in taxing, within the district, (See OveRLyinG DistTRICTS.) remedies for excessive or illegal taxation of, 527. by abatement, where it is excessive, 527, 528. against assessor when land not taxable, 541. when land is assessed to owner, 542. in case of cloud upon title, 542. (See CLoup uron TITLE.) quieting title to, 544. joint suits by several owners, 545-547. relief in cases of fraudulent assessments, 547. (See Fravp.) resisting collection of tax upon, 568-570. adverse possession of, (See ADVERSE POssEssION.) mandamus to relieve from taxes on, 574. LAND CONTRACT — assessment of, to agent, 270. LAND TITLES— change in ownership will not affect lien for taxes, 306. personal liability for taxes on, 278, 306, 307. recovery of, when sold for taxes, 871-883. loss of, by adverse possession, (See ADVERSE PossEssION.) cloud upon, how relieved against, (See CLouD UPON TITLE.) quieting, (See QuIETING TITLE.) equity not the proper tribunal for trying, 545, LANDLORD — title of, cannot be cut off by purchase by tenant, 845, 346 assessments of lands of, to occupant, 278, 279. LAW, ERRORS OF — correction of, by certiorari, (See CERTIORARI.) 652 LAW OF TAXATION. LAW, ERRORS OF — continued. extending to jurisdiction, render officers liable, (See JURISDICTION.) in judicial officers, create no personal liability, (See JupIc1aL OFFICERS.) LAW OFFICER OF THE STATE— interference by, in case of illegal corporate action, 548, 549. mandamus on application of, to compel assessment of property, 520. to compel county tu assess state tax, 522. to compel corporate officers to furnish list of stockholders, 528. to compel levy of tax to pay demands, 524. LAW OF THE LAND— the guaranty of, 36. does not necessarily imply judicial proceedings, 37. what is, 836-40. what curative laws are, 223-232. (See CURATIVE Laws.) admits of distress for taxes, 302, 303. whether it will sanction imposition of penalties by ministerial officers, 313-815. or of legislative forfeitures, 316-319. (See ForFEITURES.) not violated by enforcement of any valid tax, 425. not violated by special assessments, 429. nor by summary process against collectors and their sureties, (See CoLLECTOR OF TAXES.) right to an effectual remedy by, (See CONSTITUTIONAL PRINCIPLES.) LAWS — 7 impairing obligation of contracts forbidden, 52-56, 65. by states, imposing certain duties, forbidden, 61, 62. curative, may heal defects in tax proceedings, 223-232. what cannot be cured by, 227-229. may be made applicable to pending suits, 231. construction of, in general, 197-222. (See ConstRucTIoN.) limitation, application of, in tax cases, 376-383. (See Limiration, STATUTES OF.) retrospective, may cure want of power to tax, 100, 101. presumption against, 221, 222. revenue, what are, 1, 199. must have revenue for their purpose, 9. directory, what are, 212-216, 219, 220. mandatory, what are, 216-219. allowing redemption, are favorably construed, 868. violative of spirit of constitution, not necessarily void, 488. INDEX. 653 LAWS — continued. establishing rules of evidence, 223, 224. (See EvrpENCcE.) LAWYERS — taxation of, 888, 394. apportionment of taxes on, 179, 388,.889. LEGACIES — taxation of, (See Succrssrons.) LEGAL PROCESS — taxation of, 23. LEGALITY — in tax proceedings, is not warranted by municipal corporations, 572. (See Caveat Emptor.) how to be shown in cases of tax titles, (See EVIDENCE.) LEGISLATIVE AUTHORITY — is necessary for any tax, 244, 274. must be had for assessments, 418. may change local institutions at will, 474, 475. but cannot take all power to itself, 474. in what cases it may compel local taxation, 475-480. matters of police, courts, etc., 476, 477. construction of highways, support of schools, 478. payment of debts, indemnification of officers, 479, 480. compensation for losses by riots, 480. no compulsory power in matters concerning only the corporators, a02 408: may abate state taxes, 571. cannot make assessments, 288. cannot set aside judgments by curative laws, 232. LEGISLATIVE DUTIES — performance cannot be compelled by mandamus, 522. (See PotrtricaL ACTION.) LEGISLATIVE INTENT — (See ConsTRUCTION.) LEGISLATIVE POWER— taxing power is a, 32-40. must grant taxes, 32. must decide upon the purposes of taxation, 67. and upon questions of policy involved, 34. decision not absolutely conclusive, 67. presumption in its favor, 68, 69. must apportion taxes, 75, 125, 175. discretion of, not subject to judicial control, 111. must prescribe districts for taxation, 111, 112. may determine for itself the methods of establishing districts, 112. 654 LAW OF TAXATION. LEGISLATIVE POWER — continued. may make exemptions from taxation, (See EXEMPTIONS.) limitations upon, by federal constitution, (See CONSTITUTION OF THE UNITED STATES.) limitations upon by state constitutions, as regards exemptions, 132-144. limitations upon, as regards local assessments, (See AssEssMENTS, LOCAL ) presumption ip favor of correctness of apportionment, 179. may delegate local powers of taxation, (See LocaL PowEr To Tax.) may levy retrospective taxes, 221, 222. power of, to cure defects in tax proceedings, 223-232. (See CuRATIVE Laws.) power to declare forfeitures, 316-319. (Sce FORFEITURES.) whether it may extend or shorten time to redeem, 369, 370. may prescribe districts for special assessments, 449, 450. may determine the principles of apportioning such assessments, 449-456, whether it may audit claims against municipalities, 481. cannot at pleasure impose debts upon municipalities, 483, 484, 493, 497. cannot grant monopolies, (See MoNOPOLIES.) cannot confer power to tax upon the judiciary, 34, territorial limitations on power of, (See Extra TERRITORIAL LEGISLATION.) exercised by local bodies, (See PotitTicaL ACTION.) LEGISLATION — importance of permanence in, 174, lobby services to procure, 99. restraints upon, by constitutional principles, (See ConsTITUTIONAL PRINCIPLES.) colorable taxation by, is void, 35, 36. (See STATUTES.) LESSEE — cannot buy lessor’s title at tax sale, 347. LEVEES — construction of, may be ordered under power of police, 401, 402, special assessments for, 427. districts for, 454. apportionment of expense, 454. different standards of apportionment in different cases, 455. general taxation for, 427. equality in such taxation, 162. LEVY OF DISTRESS — cannot in general be enjoined, 538. INDEX. 605 LEVY OF DISTRESS — continued. ability to make collection by, no defense to a bill to remove cloud, 543. collection of illegal tax by, 568, 569. (See DistREss.) LEVY OF TAXES— mandamus lies to compel, by supervisors, 522. and by county trustee, 522. compelling, to pay judgments, 524-526. or other settled demands, 524, 525. by the state for municipal demands, (See Computsory Locan TaxaTION.) LEVY ON THE PERSON — (See ARREST.) LIABILITY — (See Assessors; JUDICIAL OFFICERS; OFFICERS; PERSONAL LIABILITY; Towns; USURPERS.) LIBERTY — has come from contests over taxation, 45, 46. principles of, (See CoNSTITUTIONAL PRINCIPLES.) LICENSES — granted to give privileges, 385. granted for purposes of regulation, 403-415. granted to give monopolies, 403. (See MonoPo.ies.) what they are, 406, 407. granted by the federal government, 414, 415. by the state, cannot be nullified by town or county, 411, 412. may be taxed, 21, 386. regulations for issuing, 413. right to, when conditions complied with, 413. power to recall, 414. LICENSE FEES — payment of, a condition to doing business, 403, 404. imposed for purposes of regulation, 403, 412, 413. imposed for revenue, are taxes, 403, 408, 409. imposed for monopolies, 178, 403. imposed for prohibition, 403, 404. may be imposed on any employments, 410, 412, on marriages, 410, 411. on amusements, 411. on lotteries, 411. on games of chance, ete., A11, 412. collection of, 414. whether to be returned when license revoked, 414. money paid for, when voluntarily paid, 566. 656 LAW OF TAXATION. LICENSED TRADERS — among the Indians, not taxable by states, 62. LIEN OF LOCAL ASSESSMENTS — sometimes established by statute, 466-468 attaches to the buildings, 468. remains, though a void sale has been made, 468. LIEN OF TAXES — only exists by legislation, 305. municipal authorities cannot create, 307. not affected by change in ownership, 306. who liable for tax in such case, 306, 307. enforcing by sale, (See Satz or Lanp FoR TAXEs.) relief in cases of. : (See CLoup upon TITLE.) LIGHTING STREETS — special assessments for, 428. LIQUORS — taxation of manufacturers and dealers in, 390. fees imposed on, under police power, 404-407, 412. policy in these impositions, 396. may be imposed though the business is illegal, 404-406. taxation, of as articles of luxury, 23, 125. LIMITATIONS, STATUTES OF — general power of the legislature to establish, 376. short statutes of, for tax cases, 376. questions of right and policy involved in, 376-878. application of to case of vacant tenements, 377-382. who to be deemed the true owner, 558, 559. nature of the claim which is affected by, 382, 383 general principles governing, 381. LIMITATIONS ON THE TAXING POWER— general doctrine, 41. must be for the public good, 42. for public purposes, 42. territorial, 42. (See Extra TERRITORIAL TAXATION.) must be voted by people or their representatives, 44-48. power must not be delegated, 48-51. except to municipalities, 51. power how affected by contracts, 52-56. government agencies, officers, etc., not to be taxed, 56-61. states not to tax the public domain, 59, 60. nor to lay taxes on commerce, 61-64. nor tonnage duties, 61, 62. INDEX. 657 LIMITATION ON THE TAXING POWER — continued. states not to tax in abridgment of privileges and immunities of citizens, 64, 65. nor those which impair obligation of contracts, 65. express, imposed by state constitutions, 66. in case of special assessments, 428. cannot be exceeded under orders of courts, 524. LISTING — by assessors, what is, 258. by taxpayers, for assessment, (See Tax Payers’ Lists.) LISTS — of members, corporate officers may be required to furnish, 528. furnishing by tax payers, 27, 29, 262. penalties for not bringing in, 262-264. effect of including property not taxable, 264. LITERARY AND SCIENTIFIC INSTITUTIONS — special exemptions of from taxation, 149, 150. taxation in aid of, 86, 87. LOANS — government, not taxable by states, 58. by corporations, taxation of, 168, 169. by individuals, may be taxed, 162. (See CREDITS.) secured by mortgage, may be taxed though the land is taxed also, 159, 162. to corporations by nonresidents, not taxable within the state, 65. LOBBY SERVICES — taxation for, not admissible, 99. LOCAL ASSESSMENTS — (See AssESSMENTS, LOCAL.) LOUAL COMPULSORY TAXATION — by legislature, not generally admissible, 474, 475. admissible in case of objects of state concern, 475. such as, preservation of the peace, 476. support of courts, court houses, etc., 477. construction and repair of highways, 478. support of public education, 478. payment of corporate debts, 479. making compensation for destruction by rioters, 480. jndemnifying officers, 480. whether legislature may audit claims against towns, etc., 481. duplicate nature of municipal corporations, 482. decisions regarding right to compel taxation in matters concerning only themselves, 483-493. 42 658 LAW OF TAXATION. LOCAL POWERS TO TAX— constitutional authority to confer, 51. in case of lands partly in different municipalities, 111. for highway purposes, etc., 108-110. are to be strictly construed, 98, 209-211. instances of action in excess of, 98, 99. not to be exercised to influence legislation, 99. for military bounties, must be special, 100. may be conferred retrospectively, 100. cannot be exercised for private purposes, 100. exercise of, must be confined to the district, 121-123. exemptions from exercise of, 153. general, must be confined to ordinary purposes, 210. liability to abuse, no argument against, 212. exercise of, 244-257. meetings to vote taxes, 245. must be regularly called, 246. must be limited in action to purposes specified in call, 246, 247. warning of, 246. notice of, 246-249. action of, to be favorably construed, 247. votes must appear of record, 247-249. informalities in action, to be overlooked, 249. legislative control over, 249. judiciary cannot control, 249, 250, 531. (See Poritican Action.) restrictions on exercise of, 250-254. those imposed by federal constitution, 250, 251. those imposed by state constitution, 261. other restrictions, 251. restraints on, to protect minorities, 251, 252. conditions precedent must be observed, 254. what is the evidence of observance, 254, 255. confining exercise of to tax payers, 255. are always subject to repeal, 255, 256. and to modification, 221, 222. exhausting authority under, 256. must be strictly executed, 259. are compulsory, when state has an interest in their exercise, 475-481. compelling exercise of, to pay debts, 524-526. for the purposes of local improvements, (See AssESsMENTS, Locat.) conferred under the police power, (See Licenses; License Fres; Poticr Power.) taxes on business under, (See BusinEss; PRIVILEGES.) attempted illegal exercise of, how restrained, 548 contracting debts an incipient step to exercise of, 479. INDEX. 659 LOCAL WORKS — payment for, out of special fund, 462, 463. city the agent ot parties assessed, 463. collection of cost by contractor, 466, 467. acceptance of, conclusive on persons taxed, 468, 469. (See Assessments, Locat.) LOCALITY OF PROPERTY — gives jurisdiction to tax, 14-16. (See Jurispiction; NonRESIDENTS; PERSONALTY.) LOCOMOTIVES — tax upon as property, 6 what taxes upon are not admissible, (See RartRoaD COMPANIES.) LOSSES — by riots, indemnity for, 480. by officers acting in good faith, indemnity for, 91, 92, 480. (See DaMaGEs.) LOTTERIES — fees for regulation of, 411. tax upon, adjudged to be a penalty, 264, 265. LOUISIANA— constitutional provisions for equal taxation in, 138. do not preclude special assessments, 488. special fund for assessments in, 466. liability of public in such cases, 466. property in, must be taxed by value, 485. LOWER HOUSE— origin of revenue laws in, 33. LOW LANDS — taxation for draining, 101. draining under the police power, 402. (See DRAINS.) LUXURIES — instances of taxes upon, 21, 23, 30. effect when excessive, 24. justice of special taxation of, 125. M. MACADAMIZED ROADS— taxation for, 94. MACHINE SHOPS — of railroad company, whether exempted in general exemption from taxa. tion, 151. 660 LAW OF TAXATION. MACHINERY — the term held to include gas pipe, etc., 272. MAGNA CHARTA— protection by principles of, 36-40. (See CoNSTITUTIONAL PRINCIPLES.) MAINE — property in, must be taxed by value, 435. MAJORITY — of joint boards, when may act, 193, 194. (See Joint Boarps.) of voters, cannot vote away property of minority, 78, 79. MAKING ASSESSMENT — is a judicial act, 551, 552. assessors not liable for errors in, (See ASSESSORS.) MALICE — whether assessors liable in case of, 556. MALT LIQUORS— duties on, under police power, (See PoticE PowER.) taxation of, for revenue, (See Liquors.) MANDAMUS — general nature of the writ, 514, 520, 521. award of, rests in discretion, 514. right to redeem may be enforced by, 365. is denied when another adequate remedy exists, 514, 520. will not lie to enforce a discretionary authority, 514. or to enforce performance of political duties, 518, 519. to assessors, cannot control them in their judgments, 517, 520. this rule applies to all assessments, 518. and to other discretionary duties, 518, 519. not to mere ministerial duties, 520, 521. may compel them to insert taxable property on roll, 520. to school directors, will not lie to compel them to exonerate a person taxed, 518. to judicial officers, when may be issued, and what its scope, 514-516. to boards of review, may compel them to proceed to a hearing, 521. to county treasurer, to compel issue of distress warrant against collector, 521. to supervisors, 1o compel them to levy state tax, 522. to county trustee, to compel tax to pay damages awarded, 522. to compel issue of certificate of tax sale, 522. to compel payment of surplus moneys at tax sale, 522. will not lie to coerce legislative duties, 522. INDEX. 661 MADAMUS — continued. will lie to enforce ministerial duties, 520, 521. even by a board having legislative functions, 522, 523. will not lie to the executive, 5238. will lie to compel corporate duties in tax cases, 523. ° levy of tax to pay judgments may be compelled by, 528, 524. and sometimes to pay other settled demands, 524, 525. but not an unadjusted demand, 523. will not lie to compel an official act by one not an officer, 523. nor an act that could not voluntarily have been done, 52% nor in advance of the time for doing the act, 528, 524. jurisdiction of federal courts to issue, 525, 526. MANDATORY STATUTES — what is understood by, 212-215. instances of, 216-219, 304. necessity of obedience to, 212-215. failure to observe, is not a mere irregularity, 584. (See SraTures.) MANUFACTURE — right to remove property from the state for purposes of, 61. MANUFACTURES — taxation of, 391. sSL[ANUFACTURERS — business taxes upon, 390. of liquors, taxation of, (See Liquors.) what corporations are held to be, 391. MANUFACTURING ENTERPRISES — x taxation not admissible in aid of, 78-80. exercise of the eminent domain for, 77-83. exemptions in favor of, 129, 145. discriminations in duties, in aid of, (See PROTECTION.) MARRIAGES — are sometimes taxed, 30. license fees imposed upon for regulation, 410, 411. MARRIED WOMEN — taxation of land of. to husband, 278. redemption of homestead interest by, 366. must redeem under the statutory conditions, 864. special provisions for redemption by, 364. no implied exemption in favor of, 146. MARSHES — taxation for the purpose of draining, 402. special assessments for draining, 423, 424. (See DRAINS.) 662 LAW OF TAXATION. MARYLAND — property in, must be by value, 485. liability for special assessments in, 466. MASSACHUSETTS — constitutional provisions for equal taxation in, 140. application of, to special assessments, 438-442. special fund for assessments in, 467. MAXIMS — of policy in taxation, 6-8. that taxation is for revenue, 9. qualifying this for purposes of protection, 10, 396. or to discourage certain occupations, 11. that taxation and protection are reciprocal, 14-17, 42-44. that every man has a remedy in the law, 36-40. that taxation is only for public purposes, 42, 67. that taxation and representation go together, 44-48. that sovereign powers are not to be delegated, 48-51. qualification of this in case of local taxation, 51. that one sovereignty cannot be taxed by another, 56-61. (See PRINCIPLES OF TAXATION.) that he who seeks equity must do equity, 587, 538. MEANING OF WORDS — (See Construction; DEFINITIONS.) MEETING HOUSES — (See CHURCHES.) MEETINGS — of ° aaa bodies, are essential to valid action, 193, 195. presumption that meeting has taken place, 194. action by majority in case of, 194. of towns, etc., to vote taxes, 245-250. are only legal as they comply with the law, 245, how appointed, 245. notification of, by statute, 246. limiting subjects, to be considered at, 246. must be regularly called, 246. notification must be regular, 246. proof of notice of, (See Notice.) what sufficient warning of, 246, 247. action of, to be favorably construed, 247. votes must appear of record, 247, 248. must be strictly confined to purposes of the call, 247. courts cannot control, 249, 250. power of legislature over action of, 249. of boards of review, (See Boarps oF REVIEW.) INDEX. €63 MERCHANTS — taxation of business of, 389. meaning of, 389. discriminations against those not residents, 390. may be taxed on stock and also on occupation, 389. MERITS — of assessment will not be reviewed on certiorari, 582. (See CERTIORARI.) METHODS — of taxation, (See TaxaTION.) of apportionment, (See APPORTIONMENT.) of collection, (See COLLECTION oF TAXES.) of obtaining relief in tax cases, (See REMEDIES FOR EXcEssIVE AND ILLEGAL TAXATION.) of enforcing official duty, (See ManpaMtUs.) of enforcing the responsibility of collectors, (See COLLECTOR OF THE Customs; COLLECTOR OF TAXES.) MICHIGAN — uniformity of taxation in, 140. taxation of property by value in, 435. constitutional provisions affecting special assessments, 442. special fund for assessments in, 467. MILITARY BOUNTIES — taxation for by municipal corporations, (See BounrizEs.) MILITARY COMPANY — furnishing uniform for, not a proper town charge, 100. MILITARY PENALTIES — certiorari in case of, 538. MILITARY SERVICE — taxation of property of one engaged in, 146. one exempt from, may be taxed to pay bounties for volunteers, 431. MILL DAMS — condemning lands for, 77-83. MINISTERIAL DUTIES — performance of may be compelled by mandamus, 520-525. the principle applicable to bodies having discretionary powers, 514-516. (See MaNDAMUS.). MINISTERIAL OFFICERS — confined strictly to their statutory authority, 33. cannot refund taxes unless specially empowered, 580. 664 LAW OF TAXATION. MINISTERIAL OFFICERS — continued. certiorari does not lie to, 533. protection of by process, 569. (See PRocEss.) compulsory process against, 512-526. (See Manpamus.) MINNESOTA — equality and uniformity of taxation in, 141. taxation of property by value in, 439. constitutional provisions affecting special assessments, 441. MINORITIES — property of, cannot be voted away by majority, 78, 79. constitutions framed for protection of, 251, 252. MINORS — taxation of, 45. redemption by, must be made under the statutory conditions, 364. special provisions for redemption by, 364. may sell their rights subject to redemption, 364. guardian may be personally taxed for property of, 271. MISAPPROPRIATION — levy will not be enjoined, on allegation of intent to make, 540. may be restrained as a public wrong, 548. restraining on Dill filed by private parties, 548, 549. no individual action at law for, 572. does not render a tax levy illegal, 572. MISCHIEFS — of improvident use of certiorari, 531, 582. of enjoining taxes, 536. of the remedy by replevin, 572, 578. in tax cases, mostly corrected only by political remedies, 575. MISCON DUCT — (See CoLLECTOR oF TaxEs; Fatsr RETURN; MALIcE.) MISFEASANCE — of officer, dves not render town, etc., liable, 570. of collector, when it will render him trespasser ab initio, (See CoLLECTOR oF TAxEs.) of officers in making false returns, (See OFFICERS.) of assessors, etc., damages for, 570. MISSISSIPPI — constitutional provisions in, bearing upon special assessments, 443. taxation of property by value in, 435. ° MISSOURI — constitutional provisions in, bearing upon special assessments, 443. uniformity of taxation in, 141. INDEX. 665 MISTAKE — in description of land, effect of, 282-286. (See Descriprion.) in naming the party liable to assessment, 231, 278, 279. in redemption, not relieved against, 868. except where it is mistake of officer or purchaser, 367. in assessments, correction of by abatement, 528, 529. in listing property for taxation, 264. may give jurisdiction to equity, 536. of party in paying an illegal tax, 567. of officers, towns are not liable for, 570. in omitting property from assessment will not render levy void, (See Omissions.) correction of by amendments, (See AMENDMENTS.) correction of by statute, (See Curative Laws.) MISTAKE OF LAW— in assessors, does not render assessment void, 155, 156. does not render judicial officers liable, (See Jupic1aL OFFICER.) MODIFICATION — of local powers to tax, right of, 210, 255, 256. construction in cases of, 221, 222. MONEY — taxes on the interest of, 22. taxes are presumptively payable in, 501 collector limited to receiving, 501. collector must safely keep at his peril, 501. demands against the public not receivable instead of, 501. coin may be demanded by states, 12. MONEY HAD AND RECEIVED — action of, by state against collector, 497, 498. defense to, must be on substantial grounds, 497. insufficiency uf collector’s authority, no defense, 498, or defect in his official title, 498. or the illegality of the tax, 498. action on collector’s bond for, 499-504. action against town, etc., for, 565-570. will only lie when tax is void, 565. and where it has been paid under compulsion, 565. and where it has been paid over by the officer, 565. and where no other remedy has been elected, 565. will not lie for an irregular assessment, 565, 566, what to be deemed a voluntary payment, 567. (See VoLtuntary PAYMENT.) 666 LAW OF TAXATION. MONEY HAD AND RECEIVED — continued. action against town, demand not necessary before bringing, 571. interest recoverable in, 571. refunding, in case of illegal collections, 5380. MONOPOLIES — taxation capable of being employed to build up, 173. spirit of the constitution forbids, 173. instances of, in England, 178, 403. case of patented pavements, 173. license fees for purposes of, 403. taxation for private purposes, compared to, 403. MONUMENTS — power of municipal corporations to erect, 211. MORAL OBLIGATIONS — will support taxation, 91. municipalities may be required to recognize, 479, 481. MORTGAGEE — purchase by, at tax sale, 347, 348. whether mortgagor’s title may be cut off thereby, 347. title of, cannot be cut off by mortgagor’s purchase, 845. MORTGAGES — to be taxed to owner where he resides, 43. given by railroad company, does not make bonds held by nonresidents taxable in state, 65. must be taxed, where taxation is required to be in proportion to property, 184. may be taxed, though the property mortgaged is taxed also, 134, 159. whether this constitutes duplicate taxation, 159. not in existence at date of assessment, cannot be taxed, 261. MORTGAGOR — cannot cut off mortgage by tax purchase, 345-351 whether title may be cut off by mortgagee’s purchase, 347-351, MOTIVES — (See JuprciaL OFFICER; MAuice.) MULTIPLICITY OF SUITS — joinder of complaints in equity in order to avoid, 545. mere saving of expense not a reason for, 546, 547. necessity that there should be some ground of equity jurisdiction, 546, 547. MUNICIPAL CORPORATIONS — may be empowered to tax, 51. powers may be changed at the discretion of the legislature, 474. charters of, not contracts, 56. have no inherent power to tax, 475. INDEX. 667 MUNICIPAL CORPORATIONS — continued. may tax business, 387. but must be specially empowered, 387. construction of powers to tax, 98, 209-211, 387. grant of licenses by, 408. enforcing licenses by imprisonment, 301. cannot nullify state licenses, 411, 412. (See LicEnsEs.) special assessments for streets in, 419-422. for sewers, drains, etc., in, 423-427. for water pipes in streets, 427. for lighting streets of, 428. constitutional objections to, 429-446. apportionment of, 444-456. may be left to discretion of municipality, 444. property subject to, 456-459. proceedings in levying and collecting, 459-470. personal liability for, 470-473. acceptance of work, conclusive on persons assessed, 468, 469. act as agents for tax payers in levying and collecting assessments, 463. not taxable by United States, 58, taxation of, under legislative compulsion, 473-495. in what cases allowable, 475-480. cases of preservation of the peace, support of courts, etc., 476, 477 construction of highways and support of schools, 478. payment of corporate debts, 479. compensation for injuries by rioters, 480. indemnification of officers, 480. in what cases not allowable, 482-493. local improvements, 484. state buildings, 484, 485. city parks, 485, 486. cases which recognize the supreme authority of the legislature, 487-493. apportioning cost of roads between, 478. and cost of suits, 480. and debts and property on division of, 177, 178, 479, 481. state cannot make contracts for, 483, 484, 493, 497. right of, to trial on question of indebtedness, 481. power of, to erect monuments, etc., 211. ownership of property of, on division, 176. collection of taxes on division, 176. abatement of taxes by authorities of, 527. appeal by, from assessments, 529. refunding taxes by, 580. review of proceedings of, 580-535. (See CERTIORARI.) action preliminary to taxation cannot be enjoined, 540. (See PoLITiIcaL ACTION.) 668 LAW OF TAXATION. MUNICIPAL CORPORATIONS — continued. failure to observe by-laws does not avoid action, 534. whether merely illegal taxation by, may be enjoined, 589. exercise powers in trust for corporators, 539. remedies against, for misappropriation, 540. (See MissPPROPRIATION.) restraining action ultra vires, 548. illegal organization of, must be complained of promptly, 580, 549. action against, for moneys illegally collected, 565, 566. (See Monry Hap anp RECEIVED.) liability of, for acts of officers, 570, 571. do not warrant title to property sold for taxes, 572. remedy for usurpation by, 574. (See County; Town.) compelling taxation by, to pay judgments, 524. or other settled demands, 524, 525. taxation by, under orders of federal courts, 525, 526. cannot be c»mpelled to tax beyond statutory powers, 524. action of, cannot be questioned on ground of members of the council having been improperly seated, 188. MUNICIPAL REVENUES — are presumptively derived from taxation, 494. state control of, (See Loca CompuLsorny TaxaTION.) N. NAME— error in, in assessment, 281, 278. NATION — (See UNITED STATEs.) NATIONAL BANKS — may be taxed by states, 61. statutory provisions concerning, 394, 395. only to be taxed as state banks, 394, 895. may be required to pay taxes on shares, 395. action against asessors for illegal taxation, 555. NATIONAL DEBT— (See Natronau SEcURITIES; PuBLic DEBT.) NATIONAL SECURITIES — not taxable by the state, 58. mandamus in case of illegal taxation of, 520. excise tax on corporations whose moneys are invested in, 394, IN DEX. 669 NATURE OF THE TAXING POWER— what it is, 32-40. (See Taxtna PowEr.) NAVIGATION — (See Surps.) NEBRASKA — taxes on legal process in, 23. NECESSITY— for a government, is imperative, 212. the foundation of the right of eminent domain, 76-83. and of taxation, 1, 4, 512. private convenjence must yield to, in collection of taxes, 298, 404, 586, 572, NEGATIVE PROVISIONS— may render statute mandatory, 214. NEGLECT OF DUTY— of collector, action for, 499. | by assessor, liability for, 554. correction of, by mandamus, (See ManDAMUS.) by municipal corporations in not paying debts, (See Computsory Loca Taxation.) NEGLIGENCE — of assessors in not levying tax, liability for, 553. in not taking official oath, 553. NEGOTIABLE PAPER— of municipalities, issue of, may cause irremediable mischief, 549. taxation of, 22. NET INCOME— not same thing as dividends, 170. (See Income.) NEVADA— taxes on legal process in, 23. taxation of property to be by value, 435. NEW ASSESSMENT— (See RHASSESSMENT.) NEW STATES — may not tax the public domain in, 59, 69. may tax possessory interests, 60. when lands in, are so disposed of as to be taxable, 60. NEW TERRITORIES — (See TERRITORIES.) NEW YORK— special fund for local assessments in, 467. 670 LAW OF TAXATION. NEWSPAPERS — taxes on, 23. NEXT OF KIN— taxation of distributions to, 270. (See SuccEssoRSs.) NONAGE— (See Mrnors.) NONRESIDENT LANDS— assessed separate from resident, 275. this requirement imperative, 276. must be correctly described, 286. (See DEscRIPTION.) a railroad track is not, 274. (See UNsEATED Lanps.) assessment fixes character of, for tax purposes, 334, 859. assessment of, as resident, 277 NONRESIDENTS— personal tax cannot be assessed against, 14, 42. right to collect a debt in the state, not taxable, 14-16. personalty of, actually in the state may he taxed, 15, 43. owning shares in a corporation, cannot be taxed through the copora- tion, 43. cannot be taxed on personalty being carried through the state, 48. may be taxed on their business within the state, 64. must not be discriminated against,.64. different methods of procedure in case of, 64. incidental benefits to, from taxation, 127. discriminations between those living within or without a city, 180, 158. bonds held by, not taxable within the state, 14-16, 169. not chargeable with constructive notice of action of assessors, 266, 267. are taxable on their lands, 64. assessment of lands of, (See NoNRESIDENT Lanps.) notice of tax sale in case of, 384. personal assessment upon, is a nullity, 571. recovery by, of personal tax paid, 571. NORMAL SCHOOL— local taxation for, 114, 115. NORTH CAROLINA — taxation of property in, to be by value, 485. NOTARY PUBLIC — authority to tax “trades, occupations and professions,” does not include, 388. INDEX. 671 NOTICE — of town meetings, the statute itself may be, 245, 246. omission of public notice in such cases not fatal, 246. of special town meetings, must be given, 246. business of special town meeting must be confined to objects men- tioned in, 246. effect of neglect te give, or of giving misleading notice, 248. how proof of should be made, 248. of assessments, right of parties to, 265, 265. statutes for, must be strictly observed, 265. nonresidents not personally bound by constructive, 266, 267. upon corporation, failure to give, is not fatal when subsequent notice provided for, 267. of adverse proceedings, in general, is matter of right, 266. of road taxes, necessity for, 304. of tax, to be given before distress levied, 304. of tax sales, must comply with statute, 334. if not described in statute, must be in writing, 334. may be given by publication, 334. required to be given to occupant, how complied with, 334. is a prerequisite to any authority to sell, 335. is void if it omits statement of taxes where statute requires it, 335. or gives incorrect statement, 336. or is not for full time, 335. or does not appear to be official, 336. or varies from the assessment, 336. or gives an imperfect description, 336, 337. or is in the wrong paper, 336. instances of other defects in, 336, 337. how proof of, to be made, 337, 338. if form is given, sufficient to follow it, 337. publication of, must be in regular issues of the paper, 337. after tax sale, when required to be given, 353. of application for judgment for taxes, 359. to foreclose redemption, 365, 366. of meeting of b»ard to review assessments, 580. record thereof, 530. of increase of assessment, right to, 541, 547. of change in assessment, 555. of objections to a public work, duty of party to give, 573. curing defect in retrospectively, 231. limitation upon the right, 229. (See HEARING.) constructive, from records, (See Recorps.) NUDUM PACTUM— obligations contracted without authority of law are, 102. contracts in violation of revenue laws are, 299. 672 LAW OF TAXATION. NUGATORY PROCEEDINGS — (See Nutuity,) NUISANCE— taxation in order to abate, (See Drarns.) right to declare liquor selling to be, 412. NULLITY — colorable taxation is a, 33-40. delegation of power to tax is a, 83. what burdens are a, (See Lrm1TaTIONS ON THE TaxIne POWER.) tax which is a, may be resisted, 528. and collector may refuse to collect, 501. excess of municipal powers is a, 535. an excessive tax is a, (See Excessive TAXES.) tax sale after payment or tender is a, 322, 323. tax without apportionment is a, (See APPORTIONMENT.) any tax without jurisdiction is a, (See JURISDICTION.) a merely irregular assessment is not a, 540. (Sce IRREGULARITIES.) a levy which is a, if paid without objection cannot be recovered back, 563. (Sce VoLUNTARY PAYMENT.) sale for two taxes, one of which is a, 564. liability of town, etc., where tax is a, 566. town not liable for a void sale never enforcea, 570. legislature cannot validate a, (See Curative Laws.) when a local assessment is a, 465. O. OATH — to tax payer’s list, failure to make, 263. (See AFFIDAVIT.) OATH, OFFICIAL — (See OFFIcIaL OATH.) OBJECTION — failure to take in season, may work an estoppel, (See EsToPrzEt.) payment of illegal tax without, no recovery in case of, (See VOLUNTARY PAYMENT.) INDEX. 673 OBJECTS OF TAXATION — (See PURPOSES OF TAXATION.) OBLIGATION — (See Bonp; Moran Oxsuiearion; Nupum Pactum.) OBLIGATION OF CONTRACTS — must not be impaired in taxation, 52-56. this precludes state setting aside its own contracts, 52, 53. (See ConTRacTs; EXEMPTIONS.) states cannot tax debts owing in the states to nonresidents, 65. taxing residents on debts owing them does not impair, 65. OCCUPANT— purchaser at sheriff’s sale of right of, may redeem, 366. of land, personal tax upon, 277, 278. must be assessed for land, if statute so provides, 278. assessment of lands of several to one as agent, 278. whether he may acquire title at tax sale, 347-351. cases holding he may not, 348, 349. cases holding the contrary, 350, 3851. claiming land but losing it, may be compensated for betterments, 871,372. cannot waive for the owner the right to a notice, 365. possessory right of on public lands, may be taxed, 60. OCCUPATION — what is sufficient to entitle one to notice, 334. what constitutes, 276. (See SzatED Lanps.) of part of a parcel of land, fixes character of all as occupied, 276. OCCUPATIONS — taxation of, (See Business; PROFESSIONS.) what to be deemed privileges under tax laws, 385, 392. licenses for permission to follow, 385. whether business unlawful if license not taken out, 386. privileges liable to taxation, 386. licensed by state, municipality cannot preclude being carried on, 386. may be licensed by state and also by county or town, 386. construction of municipal powers to tax, 387. what included in “occupation, trade or profession,” 392. may be licensed for purposes of regulation, 396-415. (See PoticE PowER.) but not for purposes of monopolies, (See MonorouiEs.) illegal, may still be taxed, 405, 406. OFFENSES — taxation for punishment of, 476, ATT. against the revenue laws, 299, 809-315. 48 674 LAW OF TAXATION. OFFICE FOUND — whether necessary to a forfeiture, 317-319. (See FoRFEITURES.) OFFICERS — taxation may be imposed to indemnify, 91, 92. municipalities may be required to indemnify, 480. taxation can only be had by means of, 184. definition of, 184. kinds of, legislative, executive and judicial, 184. inferior ministerial, 184. de facto, what are, 184-186. ousting by judicial proceedings, 185. distinguished from usurpers, 186, 187. acts of, not to be assailed collaterally, 187-190. cannot by his action build up rights in his own favor, 188. these rules apply in tax cases, 190, 191. intruders, when estopped from denying official character, 191, 192. joint action by, 198, 194. must be meeting for, 193. custom cannot change this rule, 198, 194. invalid if requisite number not chosen, 193. majority may act, 194. presumptions which support action, 194. returns and certificates of, are evidence, 195. generally held conclusive, 195, 196. liability for false, 196. amendment of records, rolls, etc., by, 284-248. (See AMENDMENTS.) curing irregularities of by statute, (See CuraTIvE Laws.) correcting irregularities judicially, (See JUDICIAL CORRECTIONS.) mistakes of, when parties are making redemption, may be relieved against, 367. may be compelled by mandamus to permit redemption, 365. refusal of, to give certificate for purposes of redemption, 368. cannot add to the conditions of redemption, 369. requirement of official oath, 513. (See OATH, OFFICIAL.) requirement of official bond, 413. (See CoLLEcTOR OF TAxES; SURETIES.) penalties against, for nonperformance of duty, 513. compelling performance of duty by, 512-526. (See Manpamus.) excess of jurisdiction by, (See JURISDICTION.) or INDEX. 67 OFFICERS — continued. judicial, not liable for errors, 550-557. whether this principle applies in case of malicious action, 556, 557. (See Jupic1aL OFFICER.) protection of, by process, (See Process.) presumption that they will pause in illegal action, 544. of highways, judicial action by, 550. what is not, 541. protection of by certificate, 558. municipalities not liable for conduct of, 566. collecting moneys, are not liable after they are paid over, 568. (See COLLECTOR OF TAXES.) action for damages against, 570. proceedings by quo warranto against, 574. political remedies in case of, 578. of municipalities, action by, uléra vires, (See Untra VIRES.) cannot refund taxes unless specially empowered, 527. taxation of salaries of, (See SALARIES.) OFFICERS, CORPORATE— may be compelled by mandamus to perform duty under tax laws, 528. OFFICES — federal, may be taxed by United States, 391. state, may be taxed by states, 391, 392. state, may be taxed by county, etc., under proper authority, 392. of one government, cannot be taxed by the other, 58, 392. taxation of county, 144. OFFICIAL ACTION — necessity for, in tax cases, 184. (See OFFICES.) by persons irregularly claiming office, 184-191. cannot be required of those no longer officers, 523. liability for, (See REMEDIES FOR EXCESSIVE AND ILLEGAL TAXATION.) by usurpers, (See UsuRPERS.) OFFCIAL AUTHORITY— protection by, (See PRocEsS.) excess of, (See JURISDICTION.) 676 LAW OF TAXATION. OFFICIAL BOND — of collector may be valid though not in compliance with statute, 499. or not required by statute, 499. liability of sureties upon, 500-504. (See CoLLECTOR OF TAXES.) OFFICIAL OATH — neglect to take, does not create personal liability, 553. does not preclude one being officer de facto, 186. reliance upon for protection of the public, 513. OFFICIAL RETURNS — conclusiveness of, 195. liability for false, 196. of failure to collect tax, 307, 359. what should be shown by, 308. disproving, 359. OFFSET — of damages against special assessment, 420. of rents and profits against redemption moneys, 365. (See SzeT OFF.) OHIO — exemptions of property from taxation in, 142. constitutional provisions bearing upon special assessments, 443. payment of special assessments in, 467. OMISSIONS — of property from tax roll, when may be corrected by mandamua, 520. accidental, will not vitiate the whole tax, 155. caused by error of law, 156. unlawful, if purposely made, vitiate tax, 153. are not mere irregularities, 553. ONUS OF PROOF — purchaser must take, when tax title is in question, 326-329, 358-356. change of this rule by statute, 855-357. (See Presumption; Tax DEED.) OPENING STREETS — special assessments for, 420, 421. offsetting benefits against damages in case of, 420. principles governing proceedings in, 421. (See AssEssMENTS, LOCAL.) OPINIONS — (See JUDICIAL OFFICERS.) OPPRESSIVE TAXES — (See PouiticaL REMEDIES.) INDEX. 677 ORDER — preservation of, is a state duty, 476. municipalities may be compelled to tax for, 476, 477. and to make compensation for losses by riots, 480. ORDERING SALE FOR TAXES — (See JUDGMENT FoR TAXxEs.) ORDERING TAX LEVY — (See JupemENT; CompuLsory LocaL TaxaTIoN.) ORDERLY PROCEEDINGS— ~ are essential in taxation, 2. ORDINANCES— for special assessments, instances of, 464, 465. (See Muwnicrpat CoRPORATIONS.) OREGON — constitutional provisions in, bearing upon special assessments, 443. taxation of property in, must be by value, 485. ORES — assessment of, for taxation, 259. ORGANIZATION — of school districts, delay in questioning, 580. estoppel in case of, 549. defective, unlawful tax in case of, 553. OVERFLOW — : of streams, assessments for prevention of, 427. (See LEVEES.) OVERLYING DISTRICTS — for the purposes of state buildings, 114-117. in street cases, 117. (See AssEssMENTS, Locat.) in the case of general city taxation, 118-120. (See Rurau Lanps.) OWNER— when land to be assessed to, 276-279. assessments of lands when unknown, 277, 278. effect of consent to assessment in wrong list, 277. former, assessment to, 273. transferring title after assessment, 278. when wife is, lands not to be assessed to husband, 278, assessment to one of several, 278. mistake in not assessing to, 278. assessments to persons unknown, 279. when must petition. for local assessment, 464, personal liability of, for assessments, 470-473. (See AssEssMENTS, LOCAL.) 678 LAW OF TAXATION. OWNER — continued. recovering lands may be required to pay for betterments, 371, 372. losing title by adverse possession, (See Liurration, STATUTES OF.) who is, for purposes of redemption, 366. Er PACKAGES — imported, when they become taxable by states, 62. PAPERS AND BOOKS — (See AMENDMENTS; RECORDS.) PARCELS OF LAND— separate, must be separately assessed, 279, 280. failure, renders assessment void, 279. reason for this, 280. whether grouping is a mere irregularity, 279, 280. what are, 281, 282. case of lots occupied together, 282. water rights not to be assessed separate from the land, 282. must be separately valued, 287. and separately sold, 341-3438. must not be divided in assessment, 282. | dividing for sale when tax on part is paid, 341. (See TENANT In Common.) erroneous descriptions of, avoid tax, 558. (See DEsScRIPTION.) PARKS — ‘ taxation for, 93. s (See Computsory Loca Taxation.) PAROL EVIDENCE — to show vote of a school tax, 248. to prove lost records, 248, 249. (See EVIDENCE.) PART LEGAL— (See Tax Part LEGAL.) PARTIALITY — in tax laws, 128. in customs duties, (See PROTECTION.) in assessments, (See Invrprous ASSESSMENTS.) in exemptions, (See EXEMPTIONS.) INDEX. €79 PARTIES — (See Joint CompLtainr; RELATOR.) PARTNERSHIP — taxation of members severally, 271. assessment of lands of, 282. PASSAGE — from one state to another, right of, 59, PASSENGERS — taxation on carriage of, when in violation of federal constitution, 59, 63. taxation of carriers of, 388. PATENT— description of land by, in assessment, 282, 287. PATENTED PAVEMENT— taxation for, 173. PAUPERISM — taxation in relief of, 88, 89. PAVING STREETS — assessments for the purpose of, 421. for repaving, 422. (See AssEssMEN'rs, LOCAL.) PAYMENT OF MUNICIPAL DEBTS — compelling tax for, by mandamus, 524-526. levy of tax for, under state compulsion, 479. PAYMENT OF PUBLIC DEBT— taxation for, 102. PAYMENT OF TAX— demand of, before levy of distress, 304. extinguishes authority to sell, 322. by one part owner, 341. whether it can be shown to defeat judgment, 362. requirement of, as condition to recovery of land, 372. in what cases this is not admissible, 874, 375. requirement of, as condition to maintaining suit, 319, 320. in license cases, as condition of doing business, 885, 386. in labor, is of right when the law permits it, 541. if tax illegal, the law affords adequate remedy, 588, 542, 545. if voluntary, no remedy against town, etc., though tax is illegal, 565. what is voluntary payment, 567. all not made under protest or apparent compulsion of process, 568. what is involuntary payment, 569. (See VOLUNTARY PAYMENT.) recovering back, where tax is only part illegal, 571. PAYMENT, OVER— by collector, before town can be liable, 565. whether collector afterwards liable. 563. 680 LAW OF TAXATION. PAYMENT, OVER — continued. compulsory proceedings against collector to enforce, (See COLLECTOR oF Taxzs.) PEACE, BILLS OF — (See QureTING TITLE.) PEACE, PRESERVATION OF — is a state duty, 476, 477. PEACEFUL REMEDY — by not yielding to illegal demands, 558. PEDDLERS — taxation of, 390. PENALTIES — for delinquency in payment of taxes, 309-315. for frauds, evasions, etc., 309. under federal revenue laws, 309. how imposed, 310. forfeiting right to appeal, ete., 811-318. whether they may be imposed without judicial investigation, 318-315. imposed on redemption, 314, 315. for nonperformance of official duty, 518. for failure to list property for taxation, 141, 261-268. (See Tax Payers’ Lists.) construction of laws which impose, 208, 262, 263. PENSIONS — taxation for, 74. PEOPLE— voting taxes by, (See VoTING THE TAX.) assent of, to taxes, 44-48, 178, 474-495. PEOPLE’S REPRESENTATIVES — (See REPRESENTATION.) PERMANENCE IN LEGISLATION — importance of, to equal taxation, 174. PERMANENT IMPROVEMENTS — (See BETTERMENTS.) PERNICIOUS EMPLOYMENTS— propriety of discriminating against, 396. taxation in regulation and restraint of, 304-807. (See Potice Pow.) PERSON — corporation considered as being, for purposes of an appeal, 529. application of the word to corporations generally, 273. PERSONAL ALLEGIANCE — has no necessary connection with right to tax, 15. (Sce NONRESIDENT.) e INDEX. 681 PERSONAL LIABILITY — of residents for taxes, 269-272, 277. depends upon domicile, 269. in case of trusts, 271. in case of partnerships, 271. in case of private banker, 271. in cases of discretionary authority, (See Discretionary ACTION.) of purchasers of land for taxes previously assessed, 808. of owners of land for special assessments, 470-473. of officers for false return, 196. of officers for neglect of duty, 513. of assessors, 549-557. (See ASSESSORS.) of judicial officers generally, 549-551, 556, 557. (See JUDICIAL OFFICERS.) of supervisors, 557. (See SUPERVISOR.) of collector, 559-565. (See CoLLECTOR oF TAXES.) of collector of the customs, (See COLLECTOR OF THE CUSTOMS.) PERSONAL PROPERTY — within the state may be taxed, though the owner is a nonresident, 15, 64, 270. bonds, etc., held abroad, not taxable in state, 15, 16. taxation of, by value, 26-80. inquisitorial proceedings necessary to, 26. temptations held out to fraud, 28. injustice of, in many cases, 28. leads to duplicate taxation, 28. large official force required for, 28, 29. reaches but small part of property, 29. is to be taxed where the owner resides, 269-271. held in trust, where taxable, 271, 539, 571. belonging to estate of deceased person, where taxable, 270. distress and sale of, for taxes, 301. must be proper legal process for, 301, 302. may be constitutionally authorized, 302. taking away dilatory remedies in case of, 302, 308. demand of tax to be first made, 304. notice of sale, etc., 804. necessity for strict compliance with statute, 304. liability of officer in case of abuse, 304, 563. (See TRESPASSER ab tnttio.). to be exhausted before lands are sold, 307. official evidence of that fact, 307, 308. 682 LAW OF TAXATION. PERSONAL PROPERTY — continued. levy upon for tax, is prima facte satisfaction, 548, 544. not generally assessed for local works, 457, 458. cannot be excused from taxation without authority of law, 154. taxes upon, will not generally be restrained, 538. except in cases of fraud, 538, 539. the legal remedy generally ddequate, 538, 539. the rule applies to a personal tax assessed in respect of lands, 542. illegal tax on, may be recovered back, 571. unlawfully taken, may be recovered by replevin, 572, 573. case of house owned by one on land of another, 275. assessment of railroad property as, 150. of corporations should be assessed at the place of the business office, 273, PETITION — for local improvement, sometimes required, 465. to state for refunding of illegal tax, 566. for license, will preclude recovery back of license fees, 566. PHYSICIANS— taxation of, 388, 389, 394. PLANKING— of streets, special assessments for, 421. (See AssEssMENTS, LOCAL.) PLANKROADS — existence of, in city streets, will not preclude special assessments for im- proving, 462. POLICE — compulsory local taxation for, 576, 577. regulation of, is a state duty, 576, 577. POLICE POWER— levying burdens under, to discourage certain trades, etc., 11. this proper in case of pernicious employments, 396. taxation for regulation and restraint under the, 396-415. this distinguished from taxation generally, 396, case of highway labor, 396. case of sidewalk asscssments, 398-401. case of levee assessments, 401, 402. case of drain taxes, .402. other cases, 403. license fees under, 403, 404. sometimes have restriction in view, 404, 405. what a license is, 404, 405. grant of, 408. fees, when a tax, 408-410. what may be licensed under, 410. employments generally, 410. marriages, 411. INDEX. 683 POLICE POWER — continued. what may be licensed under — continued. amusements, 411. lotteries, 411. games of hazard, etc., 411. keeping of dogs, 412. what occupations usually licensed, 412, 418. discriminations in, not unlawful, 412. case of inspection fees, 413. issuing the license, 413. right of applicant to license if he complies with conditions, 413. recalling license, 414. whether fee must be returned on, 414. collection of license fees, 414. state regulations not interfered with by federal licenses, 414, 415. POLICY — must govern in determining suffrage, 45. must always be had in view in taxation, 9. discriminations in taxation from considerations of, 396-898. (See PROTECTION.) of special assessments, 428, 429. maxims of, in taxation, 6-8. 1. that each ought to be taxed in proportion to his revenue, 6. 2. that the tax, as to time, manner and sum, ought to be certain and not arbitrary, 6. 3. that the tax ought to be levied in the time and manner most con- venient to the contributor, 6. 4, that it ought to take and keep from the people as little as possible beyond what it brings to the public treasury, 7. 5. that the heaviest taxes should be imposed on prejudicial commodi- ties, 396. (See Puptic Poticy.) POLITICAL ACTION — when it exhausts the power to tax, 256. cannot be controlled by the courts, 247-249, not to be reviewed on certiorari, 531. cannot be enjoined, 540. POLITICAL DUTIES — performance of, cannot be enforced by mandamus, 519. POLITICAL ECONOMY — . rules of, which should govern in taxation, 6-8, 396. (See Poticy.) POLITICAL REMEDIES — in case of abuse of legislative power, 4, 71. redress of wrongs in taxation by, 155. these often the only redress, 575. reasons why they are of little value in some cases, 485, 512, 513. 684 LAW OF TAXATION. POLLS, TAXES BY — not a common resort, 18. not often just or politic, 18. in labor, 12, 397. can only be levied on residents, 269. POOR— taxes in aid of, (See CHARITY.) POOR HOUSES — presumptively exempt from taxation, (See Pusiic PROPERTY.) POPULAR ASSEMBLAGES — voting taxes by, 245-250. (See VoTine THE Tax.) POPULARITY — not to be expected for tax laws, 512, 513. POSSESSION — presumptions arising from, as affecting titles, 329, 332. may support a title under which possession has been held, 829, 380, cannot support a title where no possession has been held, 330-882. limitation of time to bring suits in case of, 376-382. (See LrmiTaTion, STATUTES OF.) constructive, in case of vacant tenement, 379-881. who to be considered the true owner, 558, 559. betterments made during, recovery of value of, 271, 272. removing cloud on title in case of, 542-544. (See Croup upon TITLE.) quieting title in case of, 544, 545. (See QuIETING TITLE.) of personalty, trying right to, (See REPLEVIN.) rights by, may be taxed, 60. POSSESSORY RIGHT — on the public lands, may be taxed, 60, 275. purchaser of, at sheriffs sale may redeem, 866. (See OccUPANT.) POSTAL SERVICE — charges for, not considered taxes, 80. POSTPONEMENT— : of tax sale, 338. of time for collecting taxes, 502, 503. POWER— abuse of, derives no sanction from time, 94. liability of to abuse, is no argument against existence of, 212. to sell for taxes, is terminated by pay ment, 822. or by tender, 328. INDEX, 685 POWER — continued. to sell, must be express, 324, must be strictly executed, 323-326. compliance with must be affirmatively shown, 326-329. to tax, exists in every sovereignty, 3. extent of, 11, 41, 56. nature of, 32-40. exhausting, 256. limitations upon, 41-66. for local purposes, must be strictly construed, 209-211. for special assessments, must be express, 418. and be strictly executed, 418. to tax business, construction of, 387. to levy police taxes, 396-398, 408. to divest one of his estate, must be strictly pursued, 217. to license, when permissory, 412, weight of custom in construction of, 89, 897. (See Taxine Power.) arbitrary, in taxation, does not exist, 68, POWER OF POLICE— (See Pouice; Porice Power.) PRACTICE — (See Custom.) PRACTITIONERS — of law and medicine, taxation of, 388, 389. PREFERENCE — of occupations in taxation, 10, 25, 74, 396. PRELIMINARY ACTION — in laying taxes, cannot be enjoined, 548. leading to tax sales, necessity that it shall comply with statute, 328, 824. PREMATURE SALE— by collector, liability in case of, 563. PRESUMPTION — against duplicate taxation, 165. force of this, in construction of statutes, 165-171. that apportionment is just, 179. in support of tax titles, 329. can aid in case of possession under the title, 330. cannot aid where possession is held against the title, 380-332. cannot supply the want of a record, 382. in favor of the purposes for which taxes are laid, 69. in favor of joint official action, 194. in favor of action of persons assuming to be officers, 189. that assessment is properly made to person unknown, 279. that process fair on its face is lawful, 561. (See Process.) 686 LAW OF TAXATION. PRICE— at tax sale must be paid down, 844. inadequacy of, will not defeat sale, 345. valuing, for the purposes of taxation, 287-289. PRIMA FACIE RIGHT — to lands, will constitute cloud upon title, 543. (See CLoup upon TITLE.) PRIMARY SCHOOLS — (See Epucation; ScHoou DisTRIcTs.) PRINCIPAL AND AGENT— (See AGENT.) PRINCIPLES — of apportioning taxes, 16, 17. of constitutional protection, (See ConsTITUTIONAL PRINCIPLES.) underlying special assessments, 416, 417. (See AssEssMENTS, LOCAL.) liability of to erroneous application, does not invalidate, 417. of representative government, protect the right of local taxation, 493-495. of equity, (See Maxts.) PRINCIPLES OF TAXATION — that taxes must be regular and orderly, 2. apportioned by some uniform ratio of equality, 2, 104. each person contributing in proportion to his revenue, 6. the tax as to time, sum and manner of payment to be certain, 6. to be levied at the time and in the manner most convenient for pay- ment, 6. to take from the people as little as possible over what is brought to the treasury, 7. that taxes should bear some proportion to what government protects, 14. should be laid by the people’s representatives, 32, 44, 244, who must select the subjects of taxation, 130, 144. and ought to select for the heaviest taxes prejudicial commodities, 3896. that taxes must be laid according to the law of the land, 36. only to provide for public necessities, 41. and for the public good, 42. and for public purposes, 42, 89. which the legislature must declare, 67. and only within the jurisdiction of the government laying them, 42. that the sovereignty is not to delegate its power, 48. nor bargain it away, 52, 53. and can only act through officers, 184. that one sovereignty is not to tax another, 56. INDEX. 687 PRINCIPLES OF TAXATION — continued. that revenue laws are not to be strained by construction, 199-208. that in collection private convenience must yield to public necessity, 298 404, 536, 572. but leaving every man a remedy in the law, 265, 527. that the law favors the efforts of the citizen to preserve his estate from forfeiture, 363. that it allows moral obligations to be recognized in taxation, 91. and justifies special burdens in return for special benefits, 416. and leaves local communities to regulate concerns that are exclusive. ly their own, 474, 483, 493. PRIVATE CORPORATIONS — protection of charters of, (See CHARTER; CORPORATIONS; FRANCHISE.) organized for charity, etc., may be aided by the government, 86. PRIVATE ENTERPRISES — taxes cannot be laid in aid of, 78-80. the rule applied to manufacturing corporations, 78-80. employment of the eminent domain in aid of, 78-82. PRIVATE PURPOSES — taxation must not be for, 67-69. but pensions, bounties, etc., may be paid, 74. (See PuRPOSES OF TAXATION.) discrimations for protection, (See PROTECTION.) PRIVATE RIGHTS — (See CONSTITUTIONAL PRINCIPLES.) PRIVATE SCHOOLS — taxation in aid of, 86, 87. PRIVATE WAYS— taking land for, 76. taxation for, is inadmissible, 77. effect of existence of, in case of local assessment, 452. PRIVATE WRONGS — misuse of corporate powers may constitute, 548, 549. injunction in such case, 549. redress of, in tax cases, (See RemMEDIES FOR EXcEssIvE AND ILLEGAL TAXATION.) PRIVILEGES — taxes on, 385, 386. usually confined to employments which are exceptional, 385. are usually collected in the form of license fees, 385. when failure to pay tax may render the business illegal, 385. taxing successions as, 392. keeping billiard tables, may be, 392. of citizens of other states must not be abridged in taxation, 64. 688 LAW OF TAXATION. PRIVILEGES — continued. taxation of property or business in the state does not abridge, 64. unless it discriminates against them, 64. different modes ot procedure in taxation do not abridge, 64. nor requiring foreign corporations to submit to special conditions, 65. PROCEEDINGS — in assessing lands for taxation, (See ASSESSMENT.) in the levy of special assessments, (See ASSEssMENTS, LOCAL.) irregular, correction of by amendment, (See AMENDMENTS.) correction of, by statute, (See Curative Laws.) correction of, by judicial action, (See JupIcIAL CORRECTIONS.) correction of, by reassessments, (See REASSESSMENTS.) to compel performance of official duty, (See ManDAMUS.) dilatory, in tax cases, statutes to prevent, 507, 508, 536, 572. PROCESS — if on its face apparently valid, will protect officer executing it, 559-561. importance of this rule, 560. does not protect officer against consequences of his own illegalities, 561. protects collector, though a party is unlawfully taxed, 561. or though the tax was not lawfully voted, 561. or though the party arrested had been discharged in bankruptcy, 561. rule in Vermont, 561. what is not fair on its face, 562. tax roll is not, if certificate atttached is not valid, 562. or if the warrant shows that an illegal tax is included, 562. or if an affidavit attached appears to have been made prematurely, 562. or if the warrant does not emanate from the proper officer, 562. defects which do not vitiate, 562. building up title upon, 563. abuse of authority under, 304, 563. (See TRespasseR AB INITIO.) for collection of tax from personalty, (See Distrzss oF Goons.) to compel performance of official duty, (See Manpamvs.) in the case of illegal taxation, (See REMEDIES FOR EXcEssIvE AND ILLEGAL TAXATION.) summary, against collectors, 504-511. (See CoLLECTOR OF TAxEs.) INDEX. 689 PRODUCTION — taxation of land by, 18. PROFESSIONS — taxation of, 388, 389, 394. PROFITS — apportionment of taxes by, 384, 385. taxes on, 392. meaning of, 160, (See INcoME.) PROHIBITION — of importation, by excessive duties, 10. of occupations not licensed, 385. the licensed occupations are privileges, 385, 386, 392. of occupations under the police power, 408, 404. taxes should not go to extent of, 10, 408. PROHIBITION OF REMEDIES — (See InsuncTion; REPLEVIN.) PROHIBITIONS ON THE STATES— not to impair the obligation of contracts in taxing, 52-55, 65. not to tax the agencies of government, 56-61. or commerce regulated by congress, 61-64. not to tax imports or exports without consent of congress, 61. ‘not to levy duties of tonnage, 61. not to abridge the privileges and immunities of citizens, 64, 65. (See CoNSTITUTIONAL PRINCIPLES; LIMITATIONS ON THE TaxIne POWER.) PROHIBITORY LIQUOR LAW— | does not preclude taxation of liquors, 406. PROMISE — town vote to refund illegal taxes, when it amounts to a, 553. (See Nupum Pactum.) PROOF — of giving notices, should recite the manner in which they were given, 248. general averment of legality not sufficient, 248. sufficient if it complies with statutory form, 337. strictness required in making, 338. of tax proceedings must be made by the record, 247. (See REcorRD.) of right to redeem, need not be presented, 367. onus of, in case of tax sale, (See SALE or LANDS FOR TAXES.) of legal existence of a school district, 554. of tax proceedings, in order to justify the collector, 561. 44 690 LAW OF TAXATION. PROPERTY —. is a creature of the law, 17. constitutional protection to, (See Law or THE LAnp.) taxation of, by value, 26-80, 61, 175. difficultes of this, in case of personalty, 26-80. generally regarded equitable and just, 445. local Jevies upon, 416. principles supporting these levies, 417. public, not to be taxed, 56-59. (See Pusiic Prorerry.) taxable, what is understood by, 180, 210, 272. of private corporations may be taxed, though the franchise is taxed, 1'70. (See CoRPORATIONS.) impossibility of avoiding duplicate burdens on, 158-163. (See DupiicaTE TAXATION.) of municipal corporations, constitutional protection to, 493-495. assessment of, for taxation, 253-291. (See ASSESSMENT.) distress and sale of, for taxes, 301-304. (See DistrREss OF Goops — collection of tax by detention of, 305. sale of real, for taxes, 305, 322-861. (See SaLe or Lanps FoR TAXES.) redemption of, from tax sales, 363-370. (See REDEMPTION.) taxation of, does not preclude taxation of business, 389. levies upon, for purposes of regulation, 396-415. (See PoticE Power.) recovery of, after sale for taxes, 371-383. destroyed by rioters, compensation for, 480. apportionment of, on division of municipality, 479, 481. PROPRIETORS — of wet lands, assessments upon for draining, 402, 423. (See ADJACENT PROPRIETORS; OWNERS.) PROTECTION — and taxation, are reciprocal, 2, 14. right of the people to, entitles government to tax, 14, 406. value of? to life and liberty, cannot be estimated, 16. attempts to apportion taxes by value of, 16, 17. against calamities, taxation for, 102, 401, 427. of property, by cons‘itutional principles, (See Law or THE Lanp.) against oppressive taxation, (See PoLITicAL REMEDIES; PRINCIPLES OF TAXATION.) against pernicious occupations, etc., by discriminating fees, etc., 396. (See Poticze Power.) INDEX. 691 PROSPECTIVE ACTION — statutes are to have, unless the contrary intent appears, 221, 222. the principle applied to tax laws, 222. PROTECTIVE DUTIES — are levied in some cases, 10, 25, 74. PROTECTIVE HEALING ACTS — right of the state to pass, 232. instances of, 232-284. (See Curative Laws.) PROTEST — when neglect to make, will preclude complaining of a tax, 573. illegal tax, paid without, cannot be recovered back, 567, 568. PUBLIC BUILDINGS— special taxation for, 115, 419. compulsory local taxation for, 477, 484, 490. (See CompuLsorny Locan TaxaTIon.) PUBLIC CORPORATIONS — (See MunicrpaL CoRPoORATIONS.) PUBLIC DEBT — taxation for payment of, 102. of municipalities, compulsory taxation for, 479. " mandamus to compel levies for, 524, 526. (See Dest, Pustuic.) PUBLIC DOMAIN — not taxable by the states, 59, 60. possessory rights on, may be taxed, 60. (See RESERVATION.) PUBLIC GOOD — taxes must be laid for the, 42. questions of, must be determined by the legislature, 42. (See Poutcy.) PUBLIC GROUNDS — are presumptively exempt from taxation, 130, 131. may be assessed for local improvements, 458, 459. PUBLIC HEALTH — (See HEALTH.) a PUBLIC INSTRUCTION — (See EpucaTion; ScHoo.s.) PUBLIC LANDS — (See Pupiic DomaIN.) PUBLIC MONEYS — treasurer liable for safe keeping of, 501. impolicy in accumulations of, 8, 9. misappropriation of, 572. 692 LAW OF TAXATION. PUBLIC NECESSITY — (See NEcEsSITY.) PUBLIC POLICY — forbids officer who sells being purchaser, 341. favors redemption, 363. maxims of, in the levy of taxes, 6-8, 396. (See Pottcy.) exemptions based on considerations of, (See EXEMPTIONS.) PUBLIC PROPERTY — of the United States, not taxable, 59, 60. of the state and its municipalities, is presumptively excepted from tax laws, 130-182. may be assessed for local improvements, 458, 459. assessed and sold by mistake, 574. PUBLIC PURPOSES — taxes must be laid for, 42, 67. what are, 67-103. genera] meaning of the term, 76. must pertain to the district taxed, 104-128. (See PuRPosES OF TAXATION.) PUBLIC SCHOOLS — taxation for, 85-87. (See EpucaTion.) PUBLIC SECURITIES — are not taxable by the states, 58. ° of the states and their municipalites, taxation of, 66. investing capital of corporation in, does not preclude taxation of fran- chise, 58. PUBLIC SQUARE — taxation for, 93. PUBLIC USES — taking property for, 75-80, 420, 421. (See Emryent Domar.) what will justify taxation, 67-103. (See PURPOSES OF TAXATION.) PUBLIC VENDUE — tax sale at, 344. PUBLIC WORSHIP — taxes cannot be levied for purposes of, 83, 84. houses of, (See CHURCHES.) PUBLIC WRONGS — in the case of illegal corporate action, 548. INDEX. 693 PUBLIC WRONGS — continued. in the misapplication of public moneys, 572. correction of, by political action, (See Porrtican REMEDIES.) correction of, by mandamus, (See Manpamvs.) PUBLICATION — (See Notice.) PUNISHMENT— (See ForFEITURES; PENALTIES.) PURCHASER — by executory contract, may redeem, 367. subject to assessments, may contest them, 446. may be made personally liable for tax on lands bought, 303. must take title subject tu right to reassess taxes, 233. (See Bona Five PurcHasEr.) at tax sale, i (See SaLE or LANDs FoR Taxes.) PURCHASER AT TAX SALE— who may not ge, 341, 845-351. the officer who sells, 341. a tenant bound to pay taxes, 345. mortgagor in possession, 345. any one whose duty it was to pay taxes, 346. or to pay any part thereof, 346, 347. the agent of the owner, 347. whether the mortgagee may, 347, 348. or an adverse claimant, 348-351. must take the risk of the title, (See CavEAT Empror.) may have mandamus to compel issue of certificate, 522. or of deed, 522. may be compelled to assign on redemption, 367. right of, to redeem from prior sales, 364. notice by, to owner of land purchased, 365, 366. cannot be compelled to accept redemption of undivided interest, 367.. frauds of, in redemption may be relieved against, 367. right of, cannot be acquired by stranger, 367. may accept redemption without strict compliance with the statute, 368. cannot add to conditions of redemption, 369. time to redeem from, cannot be enlarged, 369, 370. PURPOSES OF TAXATION — what are admissible, 67-103. legislature must decide upon, 67. decision not absolutely conclusive, 67, 68. roust determine extent of taxation, 69. limits of judicial authority in deciding upon, 67-69. ‘ 694 LAW OF TAXATION. PURPOSES OF TAXATION — continued. how affected by the grade of government, 71, 72. general expenses of government, 73. purposes in general, 76. will not embrace private business enterprises, 76-79, 90. general enumeration of, 81-83. religious instruction, 83, 84. secular instruction, 84-88. public charity, 89, 90. moral obligations, 91. amusements and celebrations, 92, 93. highways and roads, 94-96. canals, railroads, etc., 97. municipal purposes, 98, 99. mnilitary bounties, 99-101. the public health, 101, 423-427. protection against calamities, 102, 427. payment of the public debt, 102. interest need not be exclusively public, 102, 103. for what the municipalities may be compelled to tax, 476-480. for what they cannot be, 482-495. must pertain to the districts taxed, 104-123. Q. QUALIFYING — by officer, proof by parol of, 192. effect of failure in, 185, 186. QUESTIONING OFFICAL TITLE— in case of usurpers, 186, 187. in case of officer de facto, 187-189, 574. QUIETING TITLE — bill may be filed for, by claimant of lands in possession, 544. whether this may be done in case of procedings void on their face, 544,545 cannot be done by one not in possession against one who is, 545. QUO WARRANTO — against officers de facto, 187-189. for usurpation of corporate powers, 574. by state to restrain unlawful taxation, 574. not adapted to the redress of individual wrongs, 574. R. RAILROAD COMPANIES — may be taxed, though made use of by government, 60. exception of the Union Pacific, 60, 61. INDEX. 695 RAILROAD COMPANIES — continued. cannot be taxed on freight carried from state to state, 63. nor on the use of locomotives and cars run from state to state, 63. may be taxed on locomotives as property, 63. cannot be taxed on their bonds held by nonresidents, 65. valuation of franchises of, for taxation, 135-187. specific tax on, precludes taxation of property, 150. but not of branch road for gravel, 150. construction of exemption from taxation in charters, 150, 151, 152, 171, 172, general exemption from taxation, whether applicable, to municipal taxa. tion, 149, 151. effect of consolidation of, upon taxation, 151. exemption from taxation of property ‘necessarily used,” etc., 151, 152. whether general exemption will apply to machine shops, etc., 152. specific tax on, held to exclude tax on shares, 166. value of property in, is included in tax on shares, 167. tax on interest paid by, is a tax on the creditor, 169. may be taxed on franchise, and also on property, 170. exemption of property from taxation, held to exempt franchise also, 171. tax on capital stock, held to exempt the franchise, 171. may stipulate in the charter to pay the state a proportion of earnings, 172. shares in, owned by resident, whether to be regarded as personal prop- erty, “within” a city, 210. rolling stock of, where to be assessed, 278. whether to be treated as real or personal, 273, 274. property of, may be taxed as personal, if statute so provides, 274. districts for taxation of, 274. personalty of, should be assessed at the place of the business office, 273. track of, cannot be assessed as nonresident lands, 274. vroperty of, is subject to special assessments, 456. but only with reference to special benefits, 456, 457. easement of, in a street, does not preclude special assessments, 462. assessment of property as personal, 150. (See CORPORATIONS.) RAILROADS — state may tax for constructing, 65. taxation in aid of construction, 65-67. (See RAILROAD COMPANIES.) RAILWAYS, STREET — (See Streer Ralnways.) RATES — exemption from, how construed, 148. for construction of sewers, 426. (See WATER RATES.) RATIFICATION — by town of illegal action by the collector, 570. by statute, of previous action taken by towns, etc., 100, 101. 696 LAW OF TAXATION. REAL ESTATE— ; taxing by the production, 18. impolicy of this, 18. taxation by rents, 18. taxation by value, 18, 19, 26-80. why this is preferable to taxation of personalty, 26-30. assessment of, for taxation, 275-286. discrimination between seated and unseated, 276-279. how to be described in assessment, 281-286. valuation of, for taxation, 287-289. sale of, for taxes, 305-309, 322-362. (See SaLe or Lanps For TAxEs.) forfeiture of, for taxes, 315-321. (See FoRFEITURES.) redemption of, from tax sales, 363-370. (See REDEMPTION.) recovery of, by tax purchaser, 371-383. (See Recovery or Lanps SOLD ror TAXES.) special assessments upon, (See AssEsSMENTS, Locat.) outside a taxing district, whether may be taxed within it, (See Extra TERRITORIAL TAXATION.) what taxation of, out of the district, is irregular merely, 528, 529. tax upon, when it may be enjoined, 542. (See InguncTIoN.) cloud upon title may be removed in equity, 542. (See CLoup uPoN TITLE.) quieting title to, 544. (See QuieTING TITLE.) joinder of complaints in case of illegal taxation of, 545-547. (See Joint COMPLAINTS.) equity not the proper tribunal for trying titles to, 545. right of claimant in possession, to jury trial of his claim, 545. improvements upon, (See BETTERMENTS; IMPROVEMENTS.) personal liability for taxes and assessments upon, (See PersonaL LIABILITY.) acquiring right to, by adverse possession, (See ADVERSE PossEssion; LiM1ITaTIoNn, STATUTES OF.) judicial sales for taxes, 357-362. REAPPORTIONMENT — of cost of road in several towns, 478. of debts among municipalities, 455. REASSESSMENTS — curing defects in taxation by, 232. may be authorized by general or special law, 282. cases of hardship after change in title, 233, 234. may be authorized where tax was laid without authority of law, 233. INDEX. 697 REASSESSMENTS — continued. . may be ordered to correct neglect of apportionment, etc., 233. judgment against a tax does not preclude a reassessment, 238. may be had in case of local taxes, 233. authority to make, may be reason for setting aside irregular levies, 585. REBELLION — collection of internal revenue during the, 181. collection of direct land tax during the, 181° (See Crviu War.) RECALLING LICENSES — power of, 414. whether fees must be returned on, 414. RECEIPT — for taxes, is evidence of payment, #23. RECIPROCITY — of duty as between the tax payer and the state, 14. RECLAMATION OF LANDS— (See Drarns.) RECITALS— in process, how they may affect its validity as a protection, 562. in tax deeds, 344, 358, 362. ; corrections in, by amendment, 334-348. (See AMENDMENTS.) what necessary to show jurisdiction of court, 358, 359. in judgments for taxes, 362. in case of summary proceedings against collectors, 509, 510. RECORDS— amendment of defects in, 234-248. (See AMENDMENTS.) purchaser of Jands is supposed to examine, 282, 233. tax purchaser must take notice of, 572. (See Caveat Emptor.) levy of taxes must appear by, 247, 248. assessors may rely upon votes appearing by, 248. secondary evidence of, when lost, 248. want of, cannot be supplied by presumption, 382. of tax judgment, 361, 362. reviewing defects in, on certiorar?, 520. (See CERTIORARI.) fatal defects on face of, will preclude tax being cloud on the title, 542. protection of assessors by, 554. tax payer must take notice of defects in, 567. of sale, are better evidence than the certificates, 352. RECOVERY OF LANDS SOLD FOR TAXES — general remedy by ejectment, 371. special rules sometimes provided, 371. 698 LAW OF TAXATION. RECOVERY OF LANDS SOLD FOR TAXES — continued. payment for betterments as a condition, 371, 372. payment of taxes, whether may be required, 472-875. may be if tax is legal, 874. not if it were illegal, 375. short limitation acts for, 376. construction of that of Pennsylvania, 377. of that of Wisconsin, 378. adverse possession under, 378-382. | “color” or “claim ” of title, 382, 383. “true owner” in case of, 558, 559. equity not the proper tribunal for, 545. right to jury trial when suit is brought for, 545. RECOVERY FOR TAXES ILLEGALLY COLLECTED — cannot be had if tax mercly irregular, 581, 565. may be had against assessors who have acted without jurisdiction, 553. or against collector whose process is void, 562. or if he makes himself trespasser ab cnztio, 564. but not after moneys paid over by him, 563. may be had against collector of customs, 564, 565. may be had against town, county, etc., 565. what are the conditions to such recovery, 565. the suit must be for money actually paid over, 566. it can only be for void taxes, 565, 566. and only for what the municipality has received for its own use, 666. cannot be had for taxes voluntarily paid, 565, 566. even though the levy was unconstitutional, 566. immaterial that the party did not know his legal rights, 567. what are voluntary payments, 568. not those made under protest, 568. or to relieve goods from scizure, 568. or under compulsion of process, 569. will be limited to money received, 570. demand not necessary before suit, 571. what interest recoverable on, 571. from the state, must be obtained by legislation, 566. (See REFUNDING.) REDEMPTION — is favored by the policy of the law, 363., statutes for, are liberally construed, 363. is a statutory right, 364. courts cannot give where the statutes do not, 364. pendency of civil war does not enlarge time for, 364, cases of minors, etc., sometimes specially provided for, 364. statutory provisions for foreclosing, 364, 365. necessity that these be strictly observed, 364, 365. INDEX. 699 REDEMPTION — continued. who entitled to make, 365-367. purchaser by executory contract, 867. tenant in common, 365, 367. original owner, though there is a tax title, 366. wife, having a homestead right, 366. lien creditor, 366. purchaser at sheriff's sale, 866. dowress, 366. husband, of the wife’s lands, 366. mortgagee or his assignee, 366, 367. not a mere stranger, 367. relief in cases of accident or fraud, 367, 368. can be none against the party’s own mistakes, 364, 367, 368. purchaser may accept, waiving conditions, 368. purchaser or officer cannot impose conditions on, 369. legislature cannot enlarge time for, after sale, 369, 370. whether it may shorten time, 370. no new title acquired by making, 368. right of one who makes to compel assignment to himself, 367. REFUNDING— by the state, of illegal taxes, 498, 530, 566. by municipalities, of taxes collected for their use, 530. officers have no general authority for, 530, 568. when may be compelled by mandamus, 520. REFUSAL — to assess a person, who loses right to vote in consequence, 553. of auditing boards to allow claims, may be corrected by mandamus, 515- 517. to perform official duty, how corrected, (See ManpAmMus.) to levy tax to pay judgment, etc., 524-526. of municipalities to perform state duties, 476-481. to perform political duties, (See PonrricaL DUTIES.) REGRADING— of streets, taxation for, 422, 423. REGULARITY — of tax sales must be shown by purchaser, 326-829. (See Sate or Lanp For TAxEs.) want of, when may be corrected by statute, (See CurATIVE Laws.) correcting, record to show, (See AMENDMENTS.) 700 LAW OF TAXATION. REGULATION — taxation for, 11, 12. burdens imposed under the police power for, 396-415. (See Poticzt PowzEr.) REJECTING TAXES— when may be compelled by mandamus, 520, 574. requiring, on certiorart, 533. RELATION — of protest, to a time preceding payment, 569. of tax deed to time of purchase, 353. RELATOR— in tax cases, when private parties may be, 522-524. when law officer of the state should be, (See Law OFFICER OF THE STATE.) RELEASE OF GOODS— payments made to obtain, are not voluntary, 568. RELEASE FROM TAXATION — (See Contracts; EXEMPTIONS.) RELIGIOUS INSTRUCTION — taxes not to be levied for, 83, 84. RELIGIOUS SOCIETIES — what protection from government they are entitled to, 84. exemption of property of, from taxation, 180. reasons for this, 145. must be strictly construed, 146, 147. do not preclude special assessments, 147, 458. exemption ceases when property is sold, 151. REMAINDER— (See SureLtus Moneys.) REMEDIAL STATUTES — what are, 204, 205. may be presumed to reach back, for purposes of justice, 222. the proper province of, 3874. laws for imposing revenue are not, 204, 205. PEMEDIES FOR EXCESSIVE AND ILLEGAL TAXATION — are always affurded by the law, 527. by abatement, 527. assessors my make, while they retain roll, 527. legislative authority may make, 527. taxing officers must have authority for, 527. by reviews and appeals, 528. these by assessors or by appellate board, 528. need not apply for, if tax is void, 528, 529. INDEX. 70L REMEDIES FOR EXCESSIVE AND ILLEGAL TAXATION — con. by reviews und appeals — continued. the proper remedy for excessive or unequal assessment, 528. decision by reviewing authority final, 529. for irregular assessment, statutory remedy is exclusive, 529. right of city to appeal, 529. by refunding, 580. officers cannot refund without express authority, 530 by certiorarz, 580. the remedy at common Jaw, 530. the writ not of right, 530. promptness required in applying for, 531. the writ only brings up the record, 585. discretionary action not reviewed on, 532-535. only reaches jurisdictional questions, 582. what will be set aside upon, 535. by injunction, 536. mischievous use of this writ, 536, 537. conditions imposed on issuing, 587, 538. not generally awarded in case of personal taxes, 588. except to prevent irremediable mischief, 589. not awarded to restrain political action, 540. nor for merely excessive assessments, 540. nor for merely irregular assessments, 540. what are not merely irregular, 541. case of personal taxes in respect of land, 542. joint complaint by several persons, when allowable, 545-547. allowed in cases of fraud, 547. in case of illegal corporate action, 548, 549. effect of delay on proceedings, 549. by removing cloud from title, 542. what constitutes a cloud, 548, 544. by having title quieted, 544. for this, complainant must have possession, 545. by action against assessors, 549. this will not lie for mere errors, 549-553. will lie in case of excess of jurisdiction, 553. and where by neglect a party is deprived of his rights, 554. bad motive in the assessor will give no right of action, 555-557. by action against supervisor, 557. what necessary to his justification, 557, 558. by resisting collection, 558. by action against collector, 559. his protection by his process, 561, 562. fatal defects in process, 562. process does not protect against his own illegalities, 563, 564. these rules apply to federal collectors, 564, 565. 702 LAW OF TAXATION. REMEDIES FOR EXCESSIVE AND ILLEGAL TAXATION — con. by action against town, etc., 560. this only lies when tax was void, 565. and when payment was compulsory, 565. and after money is paid over by collector, 565. and where party has not elected to proceed against the officers, 565 all payments are presumed to be voluntary, 567. what are not, 568, 569. recovery limited to amount received, 570. demand in case of, 571. recovery of interest, 071. case of misapplication by corporation, 572, by replevin of goods, 572. this sometimes taken away, 572, 573. by prohibition, 574. by quo warranto, S74. ty mandamus, to strike illegal assessment from the roll, 520, 574. to compel allowance for illegal taxes paid, 520. estoppel against resorting to, 573. political redress, (See PouiticaL REMEDIES.) REMEDY — for false official return, 196. by suit for recovery of taxes, 300. (See CoLLECTION OF TAXES.) by suit against collector of taxes, 497. on collector’s bond, 499-504. summary against collectors, 504. (See CoLLEcToR oF TaxEs.) for neglect of official duty, (See ManpDaMUS.) to recover lands sold for taxes, (See Recovery or Lanps Soup For TAxEs.) against corporations for neglect of officers, 570. limitation of time to apply for, (See Limrration, STATUTES OF.) political, (See PoxiticaL REMEDIES.) REMISSION — (See ABATEMENT.) REMOVAL — summary of collector, 508. of persons taxed, from the district, 562. REMOVAL OF CLOUD UPON TITLE — (See CLoup Uron TITLez.) aT Oo cn INDEX. RENTS — taxation of, 18, 19. offset of, against redemption moneys, 865. REPAIRING WAYS— special assessments for, 422, 423. (See ASSESSMENTS, LocaL; Hiauways.) REPAVING STREETS — right to levy special assessments for, 422, 428. REPEAL — by implication from general laws, not favored, 210, 205, 256. construction of acts of, 221, 222. of exemptions, general right of, 54, 145. exceptions to this, 52-55. of local powers to tax, 14, 474. of law under which collector’s bond was given, 503. REPLEVIN — for property seized for tax, 572. liability of the process to abuse, 572. the remedy sometimes taken away, 303, 5172. this does not take away right of third person, 573. nor of one not liable to taxation, 573. collector cannot defend action of, unless tax was legal, 563. REPORTS, OF FICIAL— (See Returns, OFFICIAL.) REPRESENTATION — and taxation go together, 44-48, 178. origin of this maxim, 44. meaning of, in America, 4448. application of, to local taxation, 474, 483-494, precludes levy of taxes by the executive, 44. does not ensure low taxes, 46. is only fully true when applied to the state at large, 46. does not prectude taxes on those who cannot vote, 47. application of maxim to federal government, 48. (See Computsory LocaL TaxaTION.) REPRESENTATIVES — of the people must grant taxes, 32, 42-47. responsibility of, to the people, the security against oppressive taxation, 4, 71, 178, 575. (See PoxrticaL REMEDIES.) who to have a voice in choosing, 45. REPUBLIC — arbitrary power does not exist in, 431. 704 LAW OF TAXATION. REPUBLICAN GOVERNMENT— principles of, (See ConsTITUTIONAL PRINCIPLES.) REPUTED AUTHORITY — of one assuming to be an officer, 189, 190. (See OFFICERS.) REQUEST— for jury trial when the right is given, 554. RESERVATIONS — persons living on, not taxable by the state, 269. (See PETITION.) RESIDENCE — personal assessments to be made at place of, 269. what constitutes, 269. (See DomiciLz.) RESIDENT— out of state not personally taxable within it, (See NONRESIDENTS.) out of district, may be taxed on property in it, 46. RESIDENT LANDS— taxation of, separate from nonresidents, 275, 288. (See Rea Estate.) personal liability for taxes on, (See Persona LisBILiry.) RESIDUE — (See Surptus Moneys.) RESPONSIBILITY — of representatives to their constituents, the security against oppressive taxation, 4, 71. (See REPRESENTATIVES.) RESPONSIBILITY, PERSONAL— (See Persona LIABILITY.) RESTRAINING COLLECTION — (See InsuncTIon.) RESTRAINTS — on the power to tax, (See Limitations ON THE Taxtna Power.) taxation for purposes of, (See Potice Power.) RESTRICTIONS — on the power of the states to tax, (See CONSTITUTION OF THE UNITED STATES.) INDEX. 705 RESTRICTIONS — continued. on the power of the United States to tax, (See ConsTITUTION oF THE UNITED Sratzes; CoNsTITUTIONAL PRINCL PLES.) on municipal powers to tax, what is, 252. are sometimes the purpose in taxation, 11, 396. (See Poticn Power.) RETAILERS — of liquors, taxation of, 896, 404. (See Sprrituous Liquors.) RETROSPECTIVE LEGISLATION — may cure want of power to tax, 100, 101. presumption against intent to adopt, 221, 222. for curing defects in tax proceedings, 223-229. (See CuRATIVE Laws.) RETROSPECTIVE TAXATION — may be imposed, 169. presumed intent not to impose, 221, 222. RETURNS, OFFICIAL— in general are conclusive, 195. officer liable for false, 196. liability for failure to make, 568. of failure to collect tax, 307, 359. void if made prematurely, 307. void if defective in its recitals, 307, 308. what it should show, 308. is evidence in favor of the officer, 308. disproving, 359. REVENUE— taxation must be for purposes of, 9. other incidental purposes, (See Poticy.) not the purpose of police taxation, 396-398. (See Potice Power.) license fees, when are for, 408-410. farming out the, 300. contracts in fraud of, are void, 299. frauds on the federal, 309-313. collection of the, 298-321. (See TAXATION; TAXuS.) REVENUE LAWS — what are, 1, 199. general purpose of, 9. in some states originate with the popular house, 32. construction of, in general, 199-208. 45 706 LAW OF TAXATION. + REVENUE LAWS — continued. for local taxation, construction of, 209-211. directary and mandatory provisions in, 212-220. presumption against retrospective action of, 221, 222, (See ConsTRucTION.) REVENUE STAMPS — collection of taxes by, 22, 23, 820. not taxable by the states, 58. REVIEW — tight of parties to notice of meeting of boards of, 266-268. remedy by, in case of excessive taxation, 528. decision of board of, when final, 529. failure to apply for, effect of, 529, 581. errors in decision on, do not invalidate action, 530. certiorar¢ in cases of, 534. increasing assessments upon, 547. REVISION — of revenue laws, effect of, 222. (See REPEAL.) RHODE ISLAND— constitutional provisions of, bearing upon special assessments, 444. RIGHT — constitutional, (See CONSTITUTIONAL PRINCIPLES.) RIGHT TO A HEARING — (See HEARING.) RIOTS — taxation to indemnify losers by, 480. RIVERS — protection against overflow of, (See LEVEES.) ROADS — taxation for, 94. (See Hiauways.) taxation for, under legislative compulsion, 478. (See Computsory Loca TAxaTION.) labor, taxes in, (See Lazor.) officers of, not liable for error in their decisions, 550. ROBBERY — under the forms of law in tax cases, 428. of collector, 501. t INDEX. 707 RULES — fixed, taxation must be based upon, 2, 3. (See PRincIPLES oF Taxation) RULES OF CONSTRUCTION — of statutes in general, 197. of revenue laws, 199. of local powers to tax, 211. See ConsTRUCTION.) RULES OF EVIDENCE — right of the legislature to establish and change, 228. must not preclude parties from showing their rights, 228, 224. application of, to tax sales, 853-357, (See EvipENcE; PRESUMPTIONS.) RURAL LANDS — in cities, sometimes taxed at different rates from other city property, 118. brought into city without sufficient reason, taxation of, 119, 120. SACRIFICE — in taxation, equality of, 127. in sale of land for taxes, 345. SAFE KEEPING — of public moneys, officer is liable for, 501. SALARIES — of federal officers, states cannot tax, 58. of state officers, United States cannot tax, 58. state and United States may tax those of their own officers, 391, 392. collection of taxes on, 298, 299. SALE — of chattels for taxes, 301-303. must be warranted by statute, 302. ordinary defensive remedies sometimes taken away, 302, 308. (See REPLEVIN.) demand of the tax should be first made, 304. misconduct of officer may render him trespasser, 304, 563, 564. will not preclude proceedings being set aside on certiorari, 534. payment of tax to prevent, is payment under compulsion, 568, 569. title obtained by, is not warranted, 572. (See CavEAT EMPTOR.) 708 LAW OF TAXATION. SALE OF LANDS FOR TAXES — collection by, 305-309. conditions precedent must be observed, 307-809. return of no goods, etc., 307. payment discharges right to make, 322. land must be liable, 322. proceedings must be regular, 323-326. regularity of, to be shown by purchaser, 326-329. rule of caveat emptor applies, 329. how far presumptions may support, 329-332. special authority for, 333. notice of, 334-337. description of land in notice, 336, 337. must be made at time and place appointed, 338. adjournment of, 338. competition must be allowed at, 339, 340. officer cannot buy at, 341. must be of separate parcels separately, 341-348. undivided interests may be sold, 341. surplus bond required in some states, 348. excessive, is void, 348, 344. must be to highest bidder, 344. must be for cash, 344. must not be for more than is due, 345. may be of complete title, 345. inadequacy of price will not defeat, 345. what persons may not buy at, 345-351. case of tenant and mortgagor, 345, 347, 351. case of tenant in common, 346. case of an agent, 347. case of party in possession, 348-851. bids by state or county, 351. for different taxes at the same time, 352. certificate to purchaser, 352. how issue of, compelled, 522. deed and its requisites, 353. force of, as evidence, 353-357. how execution of, compelled, 522. judicial proceedings for, 357. court must have jurisdiction, 358, 362. report of inability to collect, 359, 361. notice to parties, 359. proceedings are in rem, 860. what defects invalidate, 360, 361. confirmation of, who may oppose, 360. questions of regularity concluded by judgment, 362. redemption from, 362-370, (See REDEMPTION.) INDEX, - 709 SALE OF LANDS FOR TAXES — continued. recovery of lands sold, 371-383. (See Recovery or Lanps Sotp FoR TAXES.) surplus moneys, compelling payment of, 522. SALE OF LANDS FOR ASSESSMENTS — must be special authority for, 469, 470. power usually conferred, 470, (See AssEssMEN Ts, Locat.) SALES OF MERCHANDISE— taxation of, 22. by sample, license for may be required, 413. taxation of business of selling, (See TRaDEs.) taxation of property also, 389. SALOON KEEPERS — (See Sprrirvuous Liquors.) SANITARY PURPOSES — taxation for, 101. special assessments for, 428, 424. levies for, under the police power, 402. SATISFACTION — of municipal debts, compelling taxation for, 479, 524-526. of tax on lands by levy on goods, 307, 548, 544. of illegal tax voluntarily, precludes action to recover back, 565. (See YoLUNTARY PaymENT.) SAVING OF EXPENSE— not a sufficient reason for uniting suits in equity, 546. (See Jornr CoMPLAINTS.) SAVINGS BANKS AND SOCIETIES — tax on deposits in, not a tax on property, 168. , excise taxes upon, 393, 394. tax on deposits invested in nontaxable securities, 165. SCHOOL DIRECTORS — cannot be compelled by mandamus to abate taxes, 518. permissory authority of, to make exemptions, 146. SCHOOL DISTRICTS — may be authorized to support free schools, 85, 258. meetings in, to vote taxes, 245. notice of, 245-248. o musl be regularly called. 246, 554. proceedings must appear of record, 247, 248. warning of, 247. construction of particular votes, 211, 247, 248. if not legally called, action is void, 247. 710 LAW OF TAXATION. SCHOOL DISTRICTS — continued. meetings in, protection by record of, 248. acquiescence in, when invalid, 248. informalities to be overlooked, 249. joint meetings of, for taxation, 212. cannot build school house on site not legally established, 254. conditions precedent to taxes, must be observed, 254. informal organization of, 580, 549. protection of officers of, in discretionary action, 552, 553. votes of taxes cannot be controlled by mandamus, 519. SCHOOL PROPERTY — exemption of, from taxation, 1380, 149, 150. liability of, to special assessments, 458. instances of special exemptions and their construction, 149, 150. SCHOOLS — taxation for, 84-88, 245-248, 253, 254. (See Scuoou District.) municipalities may be required to tax for, 478. taxes for, unlawfully levied by town, may be recovered back, 571. taxes for, levied at a meeting not lawfully called, may be recovered back 554. special taxation for, in different counties, 139. construction of power to tax for, 210-212. private, aid of the state to, 86, 87. exemption of from taxation, 149, 150. voting taxes for, (See VoTING THE TAXES.) SEATED LANDS — meaning of the term, 276. are required to be taxed separate from unseated, 275, what an abandonment of, 276. taxes on, are a personal charge, 277. transfer of, to unseated list, 277. (See UNSEATED LaANnDs.) SECULAR INSTRUCTION — taxation for, 84-88. (See ScHOOLS.) SECURITY — for business taxes, may be required, 321. for performance of collector’s duties, (See COLLECTOR OF TAXES.) SECURITIES — taxation of, (See Bonps; Crepits; MorteacEs; PuBiic SECURITIES.) Ae INDEX. 71 SEIZURE — of the person for taxes, 301, 389. of property for taxes, (See DistREss.) payment of tax to relieve from, (See Votuntary Payment.) replevin in case of unlawful, 572, 573. SEMINARIES — exemption of, from taxation, 149, 150. SEPARATE INTERESTS — may be separately valued if statute so provides, 288, 289. and separately sold, 341, 342, redemption in case of, 364, 865. SEPARATE PARCELS— separate assessments of, 279, 280. * (See GROUPING.) what are, 281, 282. separate sale of, 341, 342. must not be divided in assessment, 282. SERVANTS — taxation in respect of, 21. SERVICES — in procuring legislation, payment for, 99. military, one exempt from, may be taxed to procure volunteers, 431 SETOFF — of demands against taxes, not allowed, 13. of benefits against value of land taken for streets, 420. of demands receivable for taxes, against taxes collected, 501. (See OFFSET.) SEWERS — construction of, may be ordered under police power, 399-401. special assessments for, 423-427, 469. (See ASSESSMENTS, LOCAL.) assessments for, in England, 426. illegal exemption from tax for, 154. SHARES IN CORPORATIONS— (See Stock In CORPORATIONS.) SHERIFF — (See COLLECTOR OF TAXES.) SHIPS — tonnage duties:on, cannot be laid by states, 61. are taxable as property by states, 61. but not as vehicles of commerce, 62. tax on masters of, 63. where to be taxed, 270. taxes on consignees of, 568. 712 LAW GF iARalION, SHORT STATUTES OF LIMITATION — (See Limitation, STATUTES OF.) SHORTENING TIME TO REDEEM — question of right of, 369, 370. SHOWS — taxation of, 391. (See AMUSEMENTS.) SIDEWALKS — construction of, under police power, 398. special assessments for, 450, 451, SIGNING — of assessment roll, necessity for, 289. si gning certificate attached, not equivalent to, 290. of tax roll by supervisors, 293, 294. SILENCE — when may work an estoppel, 573. SOLDIERS — bounties for, (See Bounties.) exemption of property from taxation, 149. taxation while in service, 146. SOUTH CAROLINA — assessments of property in, must be by value, 485. SOVEREIGN POWERS— apportionment of, in government, 32. general nature of the division, 32-40. SOVEREIGNTY — the taxing power an incident of, 3. taxation an act of, 146. of state or nation, not to be invaded by the other, 56-60. (See ExTRA TERRITORIAL TAXATION.) SPECIAL ASSESSMENTS — (See AssESSMENTS, LOCAL.) SPECIAL BENEFITS— levying assessments with reference to, 416-473. (See AssEssMENTS, LocAL.) SPECIAL JURISDICTION — of courts to review proceedings in taxation, 233, 234. of courts to render judgments for taxes, (See JUDGMENT FOR TAXES.) to review assessments. (See Boarps or EQuarization; Boarps or REVIEW.) INDEX. 718 SPECIAL LAWS — implied repeal or modification of, by general laws, 255, 256. imposing new burdens, should be prospective, 221. to be construed to harmonize with the general law, 210. for curing defects in tax proceedings, (See Curative Laws.) SPECIFIC TAXES — what are, 175. SPECULATION — lands held for, may properly be taxed, though producing no income, 20 and be subjected to special asssessments for draining, 456. callector not to make use of his office for, 501. SPIRIT OF THE CONSTITUTION — statutes which violate are not necessarily void, 488. (See ConSTITUTIONAL PRINCIPLES.) SPIRITUOUS LIQUORS — why especially selected for taxation, 396, policy in indirect taxation of, 6. heavy taxation of, sometimes defeats the purpose, 24. manufacturers and dealers in, are taxed on their business, 390. stock taxed as property at same time, 390. Ciscriminations in taxing dealers, 390. whether one licensed as a tavern keeper may sell, 391. taxation of, where regulation is the purpose, 404, 412. may be taxed though the business is illegal, 406. tax law not invalid for discriminating against, 412. power to declare the unlicensed selling a nuisance, 412. license fee for regulating sale of, is not a tax, 410. issuing licenses to sell, 413. conditions to a license of the business, 413. revoking licenses to sell, 414. SPORTS — taxation of, 30. (See AMUSEMENTS.) SQUARES — at street crossings, assessments for, 463. public, taxation for, 93. STAMPS — revenue, are not taxable by the states, 53. . collection of taxes in, 320. economy of such collection, 22, 23. STATE-- pids by, at tax sales, 351. power of, to coerce local taxation, 474-495. (See Computsory LocaL TAXATION.) 7i4 LAW OF TAXATION. STATE — continued. remedies of, against its collectors, 496-511. (See CoLLECTOR oF TaxEs.) abatement of taxes by, 527. refunding of illegal taxes by, 580, 566, 568. license by, cannot be nullified by county or town, 411, 412. determination of tax levy for, 244. (See LeGIsLATIVE AcTION; LEGISLATIVE PowER. STATE BOARD OF EQUALIZATION — review of assessments by, 392. STATE BUILDINGS — (See Pusiic BurLpInes.) STATE CONSTITUTIONS — (See ConsTITUTIONS OF THE STATES.) STATE PAPER— publication of notice in, 385. STATE PURPOSES — taxation for, must be apportioned through the state, 104-108. cases of state buildings, 114-120. taxation by municipalities for, 475-480. what are, 475-480. (See PurPosEs OF TAXATION.) STATE TREASURY — refunding illegal taxes received at, 566, 568. STATES — may require taxes to be paid in gold, 12. may make contracts not to tax, 53, 54. power of to tax, how limited by the federal constitution, 52-65. (See CONSTITUTION OF THE UNITED STATES.) constitutions of, are not grants of power, 425. general right of, to tax and select the subjects, 406, 407. STATIONS — railroad, exemption of from taxation, 151. STATUTES — revenue, what are, 1; 199. must have revenue for their purpose, 9, 200. impairing obligation of contracts forbidden, 52-56, 65. (See ConTRACTS.) construction of in general, 197-222. must be governed by the intent, 198. must find intent in the words employed, 198. extrinsic aid to, in cases of doubt, 198, 199 INDEX. 715 STATUTES — continued. construction of revenue laws, 199. main purpose of such laws is revenue, 200. incidental purpose to protect against extortion, 2uv. Mr. Dwarris’ views, 200, 208. opinions of English judyes, 201, 202. opinions of American judges, 202-207. leaning should not be to liberal construction, 208. penal provisions should be strictly construed, 208. conferring local powers to tax, should be strictly construed, 209, 211. directory and mandatory, 212. what should be held mandatory, 216-219. instances of directory provisions, 219, 220. may lay taxes retrospectively, 221, 222. presumption against retrospective effect, 221. curative, the various classes of, 223. establishing conclusive rules of evidence, 228. legislative mandates, 224. for special cases, 225. what is within their compass, 227-229. prospective, 230-232. for reassessments, 23. may give summary remedies for collection of taxes, 298, 303. allowing redemption, are to be favorably construed, 3638. whether redemption can be shoricned by, after sale made, 369, 370. or lengthened, 369, 370. what conditions may be imposed by, in suits to recover lands sold for taxes, 371-375. (See Recovery or Lanps SoLD For TaxEs.) remedial, what are, and how construed, 203-205, 222, 374. of limitation, application of in tax cases, 376-383. (See Limrration, STATUTES OF.) retrospective, may cure defect in power to tax, 100, 101. may abate taxes, 527. may protect officers acting in good faith, 552, 553. taking away common law remedies, 572, 578. or remedies in equity, 587. pTATUTORY POWER — divesting one of his estate, must be strictly construed, 217. and strictly executed, 217. STATUTORY REMEDY— for abatement of taxes, 528-530. STAYING COLLECTION — (See Inguncrron.) STEALING FROM COLLECTOR— (See THEFT.) 71€ LAW OF TAXATION. STEAMBOAT — made use of for railroad purposes, question of exemption in case of, 152. STOCK, PUBLIC— of the United States, not taxable by the states, 58. of states and their municipalities, taxation of, 66. investing capital of corporation in, does not preclude taxation of fran- chise, 58. STOCK IN CORPORATIONS — to be taxed where owner has his domicile, 16, 274. subject to conditions imposed by state in granting permission to transact business, 65. when taxation of will preclude taxation of corporate property, 166, 167. property of corporation is represented by, 167. when exempt from taxation where corporation is exempt, 167, 168. tax on, is a different thing from a tax on the corporation, 169. sometimes corporation made collector of taxes upon, 274. sale of, by process fair on its face passes title, 303. held by nonresidents, cannot be taxed to corporation, 48. may be taxed as the charter shall provide, 44. what words in a tax law held not to embrace, 210. meaning of the word “stock” in a certain tax law, 274. (See Banks; CorPoRATIONS; RAILROAD COMPANIES.) STOCK IN TRADE— may be taxed though the business is taxed, 389, 390. STOCKHOLDERS — obtaining lists of, by mandamus, 523. taxation of, (See Stock IN CORPORATIONS.) STRANGER — to title, cannot redeem from tax sale, 367. payment of tax by, 322, 323. STREAMS — special assessment for preventing inundations by, 427. (See LEVEEs.) STREET RAILWAYS — taxation of, 167, 409. assessment of track of, for widening the street, 458, 462. STREETS — general taxation for, 420. special assessments for land taken for, 420. for cost of grading, 421. for paving or otherwise improving, 421. for altering, widening or extending, 422. for repaving, replanking, etc., 422. 2 INDEX. T1T STREETS — continued. special assessments, for cost of curbstones, etc., 423, for sewers for, 423-427. for water pipes in, 427. for lighting, 428. constitutional objections to, 429-444. apportionment of cost, 447-456. property subject to, 456-459. proceedings in levying and collecting, 459-470. payment of, from special fund, 470, 471. personal liability for, 420, 470-478. : estoppel of parties assessed, by failure to make objections in due sea- son, 573, 574. dedication of land for, will authorize opening at expense of owners, 421. STRICT CONSTRUCTION — of power to tax, (See PoweEr.)- of power to divest one of his estate, (See Statutory Power.) STRICT EXECUTION — of authority to tax, 457. of authority to sell for taxes, 323-325. of authority to lay special assessments, 418, 464. STRIKING FROM THE ROLL— of property not taxable, may be compelled by mandamus, 520, 574. compelled by certiorari, 533. SUBSIDIES — distinguished from taxes, 2. SUBSTANTIAL RIGHTS — action for depriving one of, 554. irregularities which do not take away, will not render tax void, 533. SUCCESSIONS— to estates, may be taxed as a privilege, 392. taxation of, in general, 22. of an alien, may be taxed, 64. taxation of personalty received from an estate abroad, 270. taxation of bequests to colleges, etc., 150. SUFFRAGE — right of, sometimes dependent on payment of taxes, 553. SUITS — pending, application of curative laws to, 231. (See Actions; Equity; REMEDIES FoR Excessive AND ILLEGAL Taxa- TION.) 718 LAW OF TAXATION. SUMMARY REMEDIES — for collection of taxes, necessity for, 298, 496. are not unconstitutional, 302, 303. against collectors of taxes, 496, 497, 504. (See CoLLECTOR OF TAXEs.) SUPERVISOR — action against, 557. protection of, by certificate, 557, 558. SUPERVISORS, BOARD OF— mandamus will not be issued to, where party has another remedy, 514, may be compelled by mandamus to proceed to consider an account, 515. may be compelled to allow legal accounts, 516-517. and to refund moneys illegally collected, 520. and to assess state taxes, 522. and to levy a tax to pay judgments, etc., 524-526. issue of tax warrant by, 293, 294. SUPPLEMENTARY LIST— when signing of, a good verification of the original, 290. SUPPOSED BENEFITS — levy of assessments by, 427. (See AssESSMENTS, LOCAL.) SURETIES — in collector’s bond, liability of, 501. obligation of, is strdctiss¢mi jurzs, 502. are only bound by the terms of their bond, 502. alteration in the obligation discharges, 502. whether extension of time for collection will discharge, 502, 503. summary remedy against, 504, 510, 511. effect of change of law upon liability of, 511. whether liable for an illegal tax collected, 563. SURPLUS — of insurance company, taxation of, 392. SURPLUS BOND— provision for, 3438. consequence of failure to give, 372, 373. SURPLUS MONEYS — on tax sale, disposition of, 348. payment of, to party entitled, how compelled, 522. SWAMPS — taxation for draining, 101. special assessments for draining, (See Drains.) draining under the police power, 402. INDEX. 719 Ts TAKING AWAY REMEDY — cases of, 537, 572. (See ConstTrTuTIONAL PRINCIPLES.) TAKING OF PROPERTY — for puplic use, (See Eminent Doman.) for taxes, (See Distruss.) TARIFF — revenue, 25. protective, 25. prohibitory, 10, 74. (See Dutizs, Exports, Imports.) TAVERNS — taxation of keepers of, 391. extent of license to keep, 391. TAX COLLECTOR— (See CoLLEcToR oF TAXES.) TAX DEED — right of highest bidder to, 344. recital in, as to the quantity of land sold, 344. recital in, as to authority to sell, 353, 362. other recitals in, 353. does not prove a valid sale, 353. except as statutes so provide, 354-357. errors of form may not avoid, 353. error in, may be corrected in equity, 248. recording of, as a period from which actions may be limited, 378, 379. constructive possession by virtue of, 879-881, 558. when it does not give color of title, 382, 383. setting aside as a cloud on title, (See CLoup uPon TITLE.) mandamus to compel delivery of, 522. TAX DUPLICATE— issue of, 292. (See CoLLECTOR’s WARRANT.) TAX LAWS— what are, 1, 199. (See RevENvE Laws.) repeal of, terminates proceedings under them, 14. construction of, 199-222. (See ConsTRUCTION.) 720 LAW OF TAXATION. TAX LAWS — continued. for curing defects in proceedings, 223-282. (See Curative Laws.) enforcing official duty under, (See Manpamvs.) limitations on the power to pass, (See Liarrations on THE Taxtne PowER.) should aim at equality in the burden imposed, 124, may make exemptions, 180, 144. can only have effect through official action, 194. summary remedies under, (See Summary REMEDIES.) contracts in fraud of, are void, 299. TAX LEGAL IN PART— will be enjoined only when the legal part is paid, 587. recovery of town in case of, 571. replevin in case of, 573. TAX LEVY— authority for, 244-257. (See Vorina THE Tax.) is void if excessive, (See ExcrsstvE TAXEs.) enjoining, 536. (See InsuNcTION.) whole will not be enjoined to redress individual wrongs, 686. setting aside on certiorart, (See CERTIORARI.) compelling by mandamus, (See ManpDamus.) TAX PAYERS’ LISTS— objections to, 27, 29. requirement of, 261. penalties for failure to hand in, 262. construction of penal provisions respecting, 262, 263. taking away appeal, for refusal to hand in, 263. failure to make oath to, 263, 264. mistake in, will not create estoppel, 264. effect, where it misleads the assessors, 264. disregarding, by the assessors, 534. TAX PROCEEDINGS — curing defects in, by statute, 2238-232. by reassessments, 282, 233. by the action of courts, 233, 234. by amendments, 234-243. what departures from the statutes will not defeat, 219, 220. (See IRREGULARITIES.) INDEX. 721 TAX ROLL— premature issue of, 292. striking property from, (See SrRixina FRoM THE ROLL.) warrant to, (See CoLLECTOR’s WARRANT.) compelling assessor to put omitted property on, 520. and to deliver correct copy of, 520. TAX SALES — (See Satzs or Lanps For TaxEs.) TAX WARRANT — (See COLLECTOR’s WARRANT.) TAXABLE PROPERTY — meaning of, 180, 210, 212, 272. TAXATION — definition of, 1. and protection, are reciprocal, 2, 14, 16. differs from forced contributions, etc., 2,260. must have equality for its basis, 2. unlimited nature of, 4. is submitted to as a hard necessity, 512. direct and indirect, 5. maxims of, 6-8. 1. that it should be in proportion to revenue enjoyed, 6. 2. that it ought to be certain, and not arbitrary, 6. 38. that it ought to be levied at the time and in the manner most con- venient for payment, 6. 4. that it ought to take and keep out of the pockets of the people as little as possible, 6, 7. 5. that the heaviest taxation should be on commodities the consump- tion of which is prejudicial, 396. must be laid for revenue, 9. regulation may be a purpose in, 11. discriminating in, for protection, 10. jurisdiction for, 14-16. should be in proportion to benefits, 16, 17. English, 26, 31. heavy, dates from the time power of the commons was established, 46. power of, is a legislative power, 32-40. colorable, may be treated as void, 33, 34. in the District of Columbia, 47. in the territories, 47, 48. power of, not to be delegated, 48-51. except to the municipalities, 51. abridgment of power of, by contracts, 52-55. general purposes of, 67-108. (See Purrosss oF TAXATION.) 722, LAW OF TAXATION. TAXATION — continued. : districts for, 103-1238. (See APPORTIONMENT.) extra territorial, 121-123. equality and uniformity in, 124-174, 448. duplicate, sometimes unavoidable, 28, 158-171. presumption against intent to lay duplicate, 165-171. exemptions from, 180, 144. (See EXEMPTIONS.) accidental omissions from, 154-156. diversity of, in different districts, 172, 178. distinguished from legislative appropriation of private property, 175, 178, 430-434. and representation go together, 44-48, 178. curing defects in, 223-243. (See Tax PROCEEDINGS.) restrictions upon municipal, 250-253.. conditions precedent to, 254, 255. repeal or modification of power for, 255. exhausting authority for, 256. official action in, 184-196. (See OFFICERS.) assessments of property for, 258-291. (See ASSESSMENT.) of business and privileges, 384-392. general right of, 384. methods of, 884, 385. by federal government, 384. what to be deemed privileges, 385, 886. construction of powers for, 387. kinds usually taxed, 387-892. of corporations, 392, 398, (See CorPoraTIONns.) of national banks, 394, 395. imposed for purposes of regulation, 396-415. (See PoticE Power.) by special assessment, 416-473. in England, 460, 472. (See AssEssMENTS, Locat.) compulsory local, 474-495. admissible in matters of state concern, 475-480. not for matters of mere local concern, 481-495. to indemnify for losses by riots, 480. to pay corporate debts, 479. general, fora mere local purpose, is unjust, 429. enforcing official duty in regard to, 512-526. (See Manpamus.) INDEX. 723 TAXATION — continued. remedies for excessive and illegal, 527-575. by abatement, 527. by review and appeals, 528. by certiorar?, 529-534. by injunction, 586-542, in equity to remove cloud on title, 542-544. in equity to quiet title, 544, 545. by several jointly, 545-547, in cases of fraud, 547. by suit against assessors, 550-557. by suit against supervisor, 557, 558. by resisting collection, 558. by suit against collector, 559-564. by action against collector of customs, 564, 565. by suit against town, etc., 564-572. by action of replevin, 872. by mandamus, 574. by prohibition, 574. TAXES — definition of, 1. classification of, 4, 5. direct, 5. indirect, 5. payable in kind, 12. capitation, 18. on credits, 18. (See Bonps; CREDITS; MoRTGAGES.) on lands, 18. on houses, 19. on income, 20. on employments, 21. on carriage of property, 21. on wages, 21. on servants, etc., 21. on interest, 22. ‘ on dividends, 22. (See DrvIDENDS.) on successions, 22. (See SuccESsIONns.) on sales, bills, ete., 22. on newspapers, 23. on legal process, 23, 373. on consumable luxuries, 23. on exports, 24. on imports, 24. on corporate franchises, 25, 60, 64, 392. (See CoRPORATIONS.) 724 LAW OF TAXATION. TAXES — continued. on property by value, 26, 61, 176. on marriages, 30. on amusements, 30. on public securities, 58. (See Pusiic SECURITIES.) specific, 175. on licensed traders, 62. (See TRADERS.) on business, 384-392, (See Businzss.) on privileges, 385, 392. on Offices, 391. (See OFFICES.) on national banks, 394, 395. apportionment of, 2, 103-123, 175-183. (See APPORTIONMENT.) maxims governing levy of, 6-8. (See PRINCIPLES OF TAXATION.) apportioning by benefit received, 14-17. are pecuniary contributions when not otherwise explained, 18. are not debts, 13. are granted by the people’s representatives, 32. to be levied for the public good, 42. to be for public purposes, 42. not to be extra territorial, 42. right to representation in levying, 44-48. in violation of contracts are void, 51-54. impairing obligation of contracts are void, 65. on agencies of federal government by the states, 56-61. on agencies of state government by United States, 56-61. on revenue stamps, etc., 58. on salaries of federal and state officers, 58. on travel, 59. on the public domain, 60. on railroads, 60. (See RartRoaD CoMPANIES.) on commerce by the states, 61-64. (See COMMERCE.) which abridge rights of citizens, 64. (See PRIVILEGES OF CITIZENS.) purposes for which they may be laid, 67-103. (See Purposes oF TAXATION.) how direct are laid by the United States, 73. should be equal, 124. invidious discriminations in laying, 128, 129. exemptions from, 180-149. (See EXEMPTIONS.) INDEX. TAXES — continued. invidious exemptions from, 154-156. duplicate levies of, 156-171. (See DuriicatE Taxarron.) commuting for, 172. official action in levying, 184-196. (See OFFICERS.) construction of laws for, 197-222. (See ConsTRUCTION.) Curing defects in proceedings to obtain, 228-243. (See Curative Laws.) voting of, 244-257. must be legislative authority for, 32, 244. (See VoTine THE Tax.) assessment of property for, 258-291. (See ASSESSMENT.) collector’s warrant for, 292-297. (See CoLLECTOR’s WaRRANT.) collection of, 298. by suit at law, 300. by arrest of person taxed, 301. by distress of goods and chattels, 301-304. (See DisTRESss.) by detention of goods and chattels, 305. by sale of lands, 305-807. by imposition of penalties, 309-315. by forfeiture of property taxed, 315-319. (See ForFEITURES.) by conditions to the exercise of a right, 319-821. See ConDITIONS.) lien of, on lands, 305-307. collection by the state of its municipalities, 321. sale of lands for, 322-357. (See SALE or Lanps FOR TaXxXEs.) judicial sales for, 357-362. (See JUDGMENT FOR TAXES.) redemption from sales for, 363-370. (See REDEMPTION.) proceedings to recover lands sold for, 371-383. (See REcOvERY oF Lanps Sotp For TAXES.) under the police power, 396. how they differ from other taxes, 396, 397. case of sidewalks, 398. case of sewers, 399-401. case of levecs, 401-2. case of drains, 402, other cases, 408, 409-418. license fees, when are, 403-405, 408-410. 726 LAW OF TAXATION. TAXES — continued, license fees, collection of, 414. must not be prohibitory, 408. special assessments not classed as, 146, 456. (See AssEssMENTS, Locat.) enforcing duties in levy and collection of, 512-526. (See Manpamvs.) decision of proper authority as to amount of levy, cannot be controlled by mandamus, 519. rejection of, when illegal, 520. (See STRIKING FROM THE ROLL.) illegal, collector may refuse to collect, 521. injustice of, cannot defeat them, 3, 35, 124-129. or excuse officer for not proceeding with, 521. compelling levy of to pay judgments, etc., 524-526. levy of, by municipalities under state compulsion, 574-594. (See Computsory Loca Taxarion.) remedies by the state for, against collectors, 496-511. (See CoLLECTOR OF TaxEs.) remedies where they are excessive or illegal, 527-574. (See REMEDIES FOR EXCESSIVE AND ILLEGAL TAXATION.) TAXING DISTRICTS — taxes levied must pertain to the, 104-106. instances of violation of this rule, 106--108. general rule as to, 108-110. legislature must establish, 110-113. different for different purposes, 113, 114. overlying, 114-120. (See DisTRICTS.) taxation beyond limits of, 121-123. (See Extra TERRITORIAL TAXATION.) in cases of special assessments, 449-451. TAXING POWER— is an incident of sovereignty, 3. is granted for the benefit of all, 4. proper exercise of, affords no ground of complaint, 4, extent of, 11, 41, 56. is not an executive power, 32. is not a judicial power, 38. is legislative in its nature, 32-40. is not to be delegated, 48-51. except to the municipalities, 49. may be restrained by contracts, 52-56. limitations upon, by constituional principles, (See ConSTITUTIONAL PRINCIPLES.) limitations upon, by the federal constitution, See CoNSTITUTION OF THE UNITED STATES.) INDEX. 727 TAXING POWER — continued. state restrictions upon, 66. construction of, in general, (See Construcrion.) local, construction of, 209-211. in case of business taxes, 387. in case of levies for regulation, 396-398, 408. liability of, to abuse, 212. principles on which it should be employed, (See PRincIPLES oF TaxaTION.) TENANT— may not buy his landlord’s title at tax sale, 345. (See Occupant.) TENANT BY THE CURTESY— right of, to redeem, 366. TENANT IN COMMON— interests of, may be separately assessed, 288, 289. and separately sold, 341, 342. cannot buy interest of the others at tax sale, 846, 347. one may redeem for all, 367. redemption of separate interest by, 328, 365. TENANT IN DOWER— right of, to redeem, 366. TENDER— extinguishes lien for taxes, 308. will prevent a sale, 323. must be of the full amount due, 323. for purposes of redemption, 368. of certificates of public indebtedness, for license fees, 413. in settlement with collector, 501. TENNESSEE — constitutional provisions for equal taxation in, 143, 144. assessments of property in, must be by value, 435. TERRITORIAL LIMITATION — on power of states to tax, 42. on power of municipalities to tax, 121-123. (See NonRESIDENTS.) in case of municipal license tax, 47. the maxim that taxation and representation go together, 42-48. TERRITORIES — taxation in, 47, 48. TESTAMENTARY GIFTS— taxes on, 22. (See SuccESSIONS.) 723 LAW OF TAXATION. TESTIMONY — (See EVIDENCE.) TEXAS — property in, must be assessed by value, 435. THEATRICAL EXHIBITIONS — taxation of, 391, what is equality in case of, 138. THEFT — from collector, does not discharge him, 501. THREAT — of illegal enforcement of taxes, 536. of illegal distress, is compulsion, 569. (See VoLUNTARY PAYMENT.) TIME — taxes must be voted at the proper, 217. taxpayer must have notice of that fixed for appeal, 217. allowed for notices, must be given, 218, 230, 335. proceedings fatally defective if statute regarding, is not observed, 218. sale prematurely made cannot be validated, 229. computing, in case of notices, 33&. to redeem, cannot be enlarged, 369, 370. to redeem, shortening the, 369, 370. of advertising, to cut off redemption, 365. TITLE — at tax sale is not warranted, 572. (See CAVEAT EMPTOR.) trial of, 371-383. (See Recovery or Lanps Soup For Taxes.) extinguishing by adverse possession, (See Limitation, STATUTES OF-) removing cloud upon, 542. (See CLoup UPON TITLE.) quieting, in equity, 544. (See QuIETING TITLE.) collector cannot build up, if tax is void, 563. tax deed as evidence of, (See Tax DEED.) purchaser must take, subject to right to reasscss a tax, 232, 233. power to divest, must be strictly construed and strictly pursued, 217, 324. TITLE, OFFICIAL— not to be questioned collaterally, 187-189. questioning on quo warranto, 188. questioning in suit by or against officer de facto, 188, 189. TOLL— meaning of the term, 3. INDEX. 729 TOLL BRIDGE— duplicate taxation in case of, 163. TOLL HOUSE— when exempt from taxation, 151. TONNAGE — taxes of, not to be laid by the states, 61, what are, 61, 62. TOWN AUDITORS— action of, in allowing accounts not to be reviewed in the courts, 533. unlawful allowances by, 557. TOWN BOARD— members of, not liable for errors in their judicial action, 551. (See Jupician OFFICER.) TOWN BONDS— mandamus to compel payment of, 525. compulsory levies for payment of, 429. TOWN MEETINGS— (See Towns.) TOWN PLATS— assessment of lots and blocks upon, (See SEPARATE PARCELS.) TOWN PURPOSES — repair of fire engine, 99. compensation for use of building, 99. procuring legislation, 99. purchase of a public square, 93. paying bounties for military services, 100, 101. general enumeration of, 211. TOWN TREASURER — (See CoLLEcToR oF TAXES.) TOWN TRUSTEES — liability of, for refusing certificate, 558. TOWN VOTE— meetings for, 245-249. (See Votine THE Tx.) control of, by the courts, (See Porrricar, ACTION.) protection of officers by, 561. what will constitute a promise, 553. TOWNS — general power to tax usually conferred upon, 98, 475, 476. purposes of taxation by, (See Town Purroszs.) 730 LAW OF TAXATION. TOWNS — continued. apportionment of debts and property on division of, 176. must have legislative power to tax, 244. voting taxes by, 244-257. , meetings for the purpose, 245. how appointed, 245, 246, notice of, 246. must confine themselves to the purpose of the call, 246-248, warrant for, 247. action of, to be favorably construed, 247. must be record of, 247, 248. proof of record of, when lost, 249. courts cannot control political action of, 249, 250. restrictions on powers to tax, 250-253. conditions imposed on power of to tax must be observed, 255, 256. legislative control over taxation by, 258, 255, 256. exhausting power to tax, 256. strict execution of power by, 257. taxation under legislative compulsion, 474-495. refunding taxes by, 580. liability of, for illegal taxes collected, 565. only attaches where the tax was void, 565. and was paid under compulsion, 565. and has been paid over by the officer, 565. what is a compulsory payment, 567-569. do not guaranty correct action by their officers,-566. proper action against, for money collected, 569. extent of recovery in, 570. not liable for mistakes, etc., of officers where money is not received, 570. cannot defend suit for illegal taxes by showing assessors not legally elected, 570. no action against, where the proceedings are wholly void, 570. demand not necessary before suit, 571. recovery of interest in suit against, 571. do not warrant title to property sold for taxes, 572. (See MunicrpaL CORPORATIONS.) allowance of moneys to collector is equivalent to payment to, 570. indemnifying collector not a ratification of his illegal act, 570. suit against on promises, 553. TOWNSHIPS — (See Towns.) TRACK — of railroad company, assessment of, for paving the street, 462. is not nonresident land, 274. (See Rartroap CoMPANIES.) TRACTS, SEPARATE— (See SEPARATE PaRcELS.) INDEX. 731 TRADE — what taxation of, is forbidden, (See CoMMERCE.) taxation of. in general, (See TRADERS.) TRADERS— licensed to trade with Indians, not taxable by states, 62. importing goods, not taxable by states as importers, 62, 63. exchange and money brokers, taxes on, 68, 64. dealing in articles not the growth of the state, whether specially taxable on their business, 64. taxes on business of, as a privilege, 385, 392. licensed by the state, cannot have the license nullified by city, etc., 386. may be taxed by state and municipality under proper legislation, 386. licence of, may be taxed, 386. power to tax, construed strictly, 387. graduating licenses of, 387, 390. what kinds of, generally taxed, 387-389. taxes on auctioneers and commission dealers, 389. on merchants, 389. , on peddlers and transient dealers, 390. on dealers in liquors, 390. for regulation, (See Potice Power.) TRANSIENT DEALERS — taxation of, 390. fees for regulating business of, 412, 418. TRAVEL— unlawful taxation of, 59. (See COMMERCE.) TREASURER— protection of, by process, (See CoLLECTOR OF TAXES.) liability for stolen moneys, 501. (See County TREASURER.) TRESPASS — against assessors, recovery in, 570. when it will lie, (See JUDICIAL OFFICER.) against the collector, recovery in, 570. when it will lie, (See CoLLECTOR OF Taxus.) against supervisor, 657, 558. 732 LAW OF TAXATION. TRESPASSER AB INITIO— collector is, if he sells distress before the time fixed by Jaw, 304. or if he keeps it beyond the time fixed by law, 304. or if he sells and fails to render account of surplus moneys, 563. or if he sells more than is necessary, 564. what abuse of official authority will render the officer a, 304, 563. (See CoLLECTOR OF TAXES.) TRIAL— right of every party to, (See Law oF THE Lanp.) by jury, not always of right, 425. (See Jury TRIAL.) of question of corporate indebtedness, 481. TRIBUNAL— right of every one to an impartial, 527. (See Heartna; Law oF THE LAND.) what is open, in case of illegal taxation, (See REMEDIES FOR ExcrssIVE AND ILLEGAL TAXATION.) TRIBUTE — distinguished from taxes, 2. TROVER— action of, in case of illegal levies, 570. TRUE OWNER— who deemed to be, when title in contest, 558. TRUST — municipal officers hold their powers in 539. TRUSTEE— cannot buy property for himself at tax sale, 348. (See TRusTs.) TRUSTS — property belonging to, may be assessed to trustees where they reside, 271. assessment in case of two trustees, 271. investment of moneys in another state, 271. abroad, cannot be taxed by state, 571. TURNPIKE — taxation for, 488. (See Hicuways.) TURNPIKE COMPANY — easement of, in street, will not preclude special assessment to improve it, 462. appropriation of road of, under the eminent domain, 176. (See CORPORATIONS.) INDEX. 733 TYRANNY— right of the people to vote the taxes, chief check upon, in some coun- tries, 46. of enforced local taxation, 475, 488. U. ULTRA VIRES— taxation which is, is void, (See Nunurry.) contracting debts which are, may work irreparable injury, 548, 549. restraining threatened action, 548, 549. interference of_the state for the purpose, 549. UNANIMOUS VOTE— what is evidence of, 465. UNCONSTITUTIONAL TAX— collector may refuse to collect, 500. collected, must be accounted for by collector, 498. voluntarily paid, and paid over by collector, he is not liable for, to tax payer, 563, 566. : duplicate taxes not necessarily unconstitutional, 158-160. UNDIVIDED INTERESTS — may be separately assessed, 288, 289. and separately sold, 341, 342. but not without statutory authority, 341. and separately redeemed, 323, 364, 365. redemption by one owner for all, 367. UNEQUAL TAXATION — impossibility of avoiding, 124-128. the purpose of government to avoid, 124. what does not create, in a legal sense, 128. special exemptions produce, 128, 129. invidious exemptions not allowable, 152, 153. caused by accidental omissions, 154-156. caused by fraudulent assessments, 157. caused by duplicate taxation, 158-171. not caused by permitting commutations, 172. caused by want of permanence in legislation, 174, not supposed to flow from assessment by benefits, 416, 417. does not necessarily result irom selecting few subjects for taxation, 124, 125, 887, 888, 411, 412. legislature must deternine questions of, 126. abatement in cases of, 527. (See RemuEpriEs FOR EXCESSIVE AND ILLEGAL TaxATION.) 734 LAW OF TAXATION. UNIFORMITY — must be aimed at in taxation, 124-174. constitutional provisions intended to secure, 182-144, 486-444. apportionment with a view of securing, 175-183. required in federal duties, imposts and excises, 73. general consideration of questions of, 124-174. (See Equattty.) application of rules of, to special assessments, 416, 417, 428, 429. (See AssEssMENTS, Locat.) UNITED STATES— may levy direct taxes, 5, 73. taxation of liquors by, 24. of exports, 24. of imports, 24. general right of, to lay taxes, 5, 32, 56, 71. tax bills to originate in lower house, 33. taxation in territories by, 47. in District of Columbia, 47. cannot tax the states or their agencies, 58. or salaries of state officers, 58. or municipal corporations, 58. public domain of, not taxable by states, 59, 60. constitutional limitations on power to tax, 73, 74. may tax for bounties, 99. collection of tuxes by penalties, 309. taxation of business by, 384. licenses by, 414, 415. do not give rights as against state laws, 415. not granted under police power, 415. interest of, in railroad, precludes taxation of, 60, 61. salaries of officers of, cannot be taxed by states, 58. contracts to defraud revenue of, are void, 299. customary frauds upon, 309, 312. special regulations for collection of internal revenue, 181. direct land tax, collection of, 181. UNITED STATES COLLECTORS — of the customs, (See CoLLECTOR OF THE CUSTOMS.) of internal revenue, (See CoLLEcTOR oF INTERNAL REVENUE.) UNITED STATES LANDS — (See Pusiic Domain.) UNITED STATES PROPERTY — (See Pusitc Property.) UNITED STATES RESERVATIONS — ‘ personal assessments of people living upon, 269. INDEX. 735 UNITED STATES SECURITIES — not taxable by the states, 58. corporations taxable on their franchises, though moneys invested in, 58. UNIVERSITIES — exemption of, from taxation, 149. UNJUST TAXATION — is frequently laid, 387. (See Unequan Taxation.) remedies for, (See REMEDIES FOR EXcEssIvVE AND ILLEGAL TAXATION.) UNKNOWN OWNERS — assessment of lands of, 278, 279. what is presumptive evidence that owners are unknown, 279. UNLAWFUL CONTRACTS — ° those in fraud of the revenue are, 299. those in excess of power are, 553. (See ULTRA VIRES.) UNRESTRICTED POWER— to tax, does not exist, 6, 68, 431. (See LimiTaTIons ON THE Taxina POWER.) in case of municipal taxation, 486. (See Computsony LocaL TaxaTION.) UNSEATED LANDS — separate taxation of, 275. meaning of the term, 276. what will constitute land once occupied unseated, 276. lien of tax upon, 277. description of, 282-286. proceedings in selling must follow assessment, 334, 359. notice of sale in case of, 334. surplus bond in case of, 348. UNWARRANTED ASSESSMENTS — what are, 428, 431-434. USAGE— cannot change the law, 194. influence of, in construction of town powers, 93, 94. (See Custom.) USURERS — impolicy of robbery of, 6. USURPATION — of powers not conferred, (See JURISDICTION ; Nu uty; ULTRA VIRES.) 736 LAW. OF TAXATION, YSURPERS — distinguished from officers de facto, 186, 187. inquiry into authority of, 574. must pay over public moneys collected, 191, 192, 498. We VACANT TENEMENTS — limitation of actions in case of, 877. whether it may be done when ejectment cannot be brought, 377. decisions that holder of tax title has constructive possession, 378-381. possession in case of, is purely matter of fiction, 381. VACATING ASSESSMENTS — proceedings for, on certéorari, (See CERTIORARI.) e by striking property from the roll, (See STRIKING FROM THE ROLL.) VALUATION — necessity for, in assessment, 287. separate parcels, separately, 287. is a judicial act, 288. cannot be made by legislature, 288. effect of omitting dollar mark in, 289. assessors not liable for errors in, 549, (See JUDICIAL OFFICERS.) remedies for excessive and illegal, (See Remepres FoR ExcEssIve anD ILLEGAL TAxATION.) VALUE— taxation of property by, 26-80. objections to this in case of personalty, 26-80. constitutional provisions for taxation by, 182-144, 435. imposition of duties by, 176. assessments by, (See ASSESSMENT.) certificate to assessment, showing how value estimated, 290. how provisions for taxation by, affect special assessments, 432-446. special assessments by, 456, 459. (See AssEssMENTS, LocAt.) VERIFICATION — of tax list, 216, 298, 294. of assessment, 290, 562. of notices of tax sales, 386. VESSELS — taxes on, 61, 64, 270. (See Surrs.) INDEX. 737 VESTED RIGHTS— under contracts, (See Conrracrs.) of municipal corporations in their property, 494, 495. cannot be taken away by arbitrary rules of evidence, 228, 224. nor by legislative mandates, 224. : nor by statutes which undertake to heal fatal defects, 227 (See Law or Tor Lanp.) VICINITY — meaning of, 464, VILLAGES — (See Municrpan CoRPURATIONS.) VIRGINIA — provisions for equal taxation in, 144. property in, must be assessed by value, 435. VOID ON ITS FACE— tax record that is, creates uo cloud on title, 542-544. process that is, may be resisted, 558. process that is, no protection to collector, 561. what will render process invalid, 562. mere clerical errors will not, 562. protection where one of two tax warrants is not, 562. VOID SALE— does not divest the lien for the tax, 468. (See Nunuity; SALE or Lanps ror TaxEs.) VOLUNTARY PAYMENT— town, etc., not liable for illegal tax in case of, 565. party making, is supposed to know his rights, 567. payment made without warning or protest is, 567. unless there was fraud or mistake, 567. protest need‘not be formal, 568. payment to release goods from seizure is not, 568. nor payment after threat of distress, 568, 569. nor one made on exhibition of process, 569. payment made for a license petitioned for is, 566. recovery when the payment was not, 568, 569, 570. VOLUNTEERS — taxation of property of, 146. taxation to pay bounties to, (See BounTIEs.) one may be taxed to raise bounties for, though exempt from military ser- vice, 481. VOTE— on ordering special improvement, 465. (See Town VOTE.) 47 738 LAW OF TAXATION. VOTING THE TAX — must be legislative authority for, 244. special regulations for determining amount of state taxes, 244. determination of local taxes, 244. 1. by the legislature, 244. 2. by local boards acting in legislative capacity, 244, 245. 3. by the vote of popular meetings, 245. meetings to vote taxes, 245. must be lawfully convened, 2435, 246, 554. statutes fixing time are notice of, 245, 246. failure to give additional notice not fatal, 246. limiting subjects to be considered at, 246. limiting the amount to be voted at, 246. special, must be regularly called, 246. methods of notifying, 246. action of, is political, 247. is to be favorably construed, 247. : is not to be overruled by judiciary, 247. proceedings of, must appear of record, 247, 248, 249. construction of particular warrants for, 247. and of particular votes taken at, 247-250. notice of, if fraudulent or misleading, is void, 248. proof of, how made, 248. , secondary proof of’ records of, 248, 249. assessors may rely upon records of votes at, 248. action of, not to be assailed as unwise, 249, 250. statutory appeal from, 249, 250. levy in excess of that voted, is void, (See EXCESSIVE TAXES.) | action in, not reviewable on certzorarz, 531. nor subject to be enjoined as being more than is necessaay, 540. or on ground of intended misappropriation, 540. or because of unreasonable delay, 540. - W. WAGES — taxation of, 20. WAGONS — tax on, in proportion to animals drawing them, 139. WAIVER — by purchaser, of conditions to redemption, 368.. by tax payer, of objections to illegal tax, (See VoLUNTARY PAYMENT.) of right to notice, cannot be made by occupant for owner, 365. INDEX. 739 WAIVER — continued, of right to certéorart by delay, 581. of objections to a public work by silence, 573. (See Estorrxt.) WAREHOUSE — belonging to railroad company, taxation of, 151. WARNING — payment of illegal tax without, will preclude recovering back, 567, 568. (See VoLunrary PayYMENT.) of town meeting, etc., 246. will limit business to be done at meeting, 246. necessity that it be legal, 246, what is a sufficient, 246. construction of special warnings, 247. WARRANT — for town meeting, etc., 246, 247. return upon, 247. must be duly signed, 247. for collection of taxes, (See CoLLECTOR’s WARRANT.) against collector of taxes, (See CoLLEcTOR or TaxEs.) protection by, (See PRrocsss.) WARRANTY — none in tax sales, (See Caveat EmMpror.) municipalities give none, as to action of their officers, 572. WATER— . privilege of supplying acity with, is taxable, 282. power, is not taxable separate from the land to which it is attached, 282. special assessments to lay pipe for, 427. levees to protect against, (See LEVEES.) assessments for drains and sewers to carry off, (See Drains; SEWERS.) ; WATER POWER— appropriating land for, (See Eminent DoMAIN.) WATER RATES — action establishing insufficient, cannot be corrected by quo warranto, 575. WATER WORKS— taxation for, 98. 740 LAW OF TAXATION. WAYS — private, (See PrrvaTE Ways.) public, (See Bripezs; Canats; Highways; TURNPIKES; STREETS.) WEEKS — required in notices, must be full weeks, 335. WEST VIRGINIA — provisions for equal taxation in, 144. taxation of property in, must be by value, 435. WHARF BOAT— taxation of, 152. WHARFAGE FEES — right to, not included in the term “ property,” 272. WIDENING STREETS — assessments for, 422, 468. (See AssEssMENTS, LOCAL.) WIDOW — right of, to redeem from tax sale, 366. WIDOW AND HEIRS — assessment of estate to, 278. WILL— taxation of gifts by, (See SuccEssrons.) taxation of estate under, (See ExEcuror.) WINDOW TAX — formerly levied, now abolished, 20. WISCONSIN — equality of taxation in, 144. constitutional provisions bearing upon special assessments, 444, special fund for payment of city contracts in, 466. WOMEN — are taxable, 45. (See MarrieD WoMEN; WIDow.) WORDS — (See DEFINITIONS.) WORK — right to pay taxes in, not to be taken away by officers, 541. (See Lazor.) INDEX. TAL WORSHIP — taxation for, not allowed, 83, 84. houses of, generally exempt from taxation, 145. exemptions may be recalled, 145. must be strictly construed, 146. will not preclude special assessments, 147. estimate of benefits in such cases, 462. WRIT OF CERTIORARI — (See CzRTIORARI.) WRIT OF INJUNCTION — (See InsuNcTION.) WRIT OF MANDAMUS— (See ManDAMUS.) WRIT OF PROHIBITION — (See PROHIBITION.) WRIT OF QUO WARRANTO — (See Quo WARRANTO.) WRIT OF REPLEVIN — (See REPLEVIN.) WRONG— |. committed by the state in the levy of illegal tax, 568. (See State.) WRONGFUL ACT — (See TRESPASSER AB INITIO.) WRONGS, REMEDY FOR— (See REMEDY; REMEDIES FOR EXcESsIVE AND ILLEGAL TAXATION.) a YEARLY LEVIES — one, exhausts the power for the year, 256. Sat ge es