83] question from the assessment roll, and, in fact, knew nothing of such omission; that during the progress of the work the owner of the lots, Thomas Young, promised in person to pay in full for the improvements when finished, provided he, Birch, would deduct ten per cent from the contract price, and that he, Birch, agreed to this arrangement. When the entries relative to the lots were made, in November, 1871, the collector entered the amounts in the "special ledger" in his office as assessed against the lots, and then gave the notice thereof prescribed by law. Certificates of indebtedness against the lots, agreeably to the Act of October 28, 1867, were therefore issued to the contractor, who sold and transferred the same to the appellant, Lyon, for value before maturity. After their maturity, and for default in their payment, Lyon procured the collector of taxes of the District of Columbia, in 1881, to sell the lots in question, and bought them in, paying the purchase price by surrendering the certificates of indebtedness aforesaid, and paying the difference in cash. In return he obtained twelve several certificates of tax sale, one as to each lot, bearing date October 15, 1881. Prior to the aforesaid entry in red ink, bowever, and while the records all showed no assessment or claim of any kind against the lots in question, to wit, October 2, 1871, Young sold and conveyed them to Hallett Kilbourn, and by various transfers thereafter, all made subsequent to the red-ink entry, they came into the possession and ownership of the plaintiff, January 26, 1881 In 1875, while the title to the lots was in one James M. Latta, a sale of them was attempted to satisfy the delinquent taxes assessed against them as aforesaid. Latta thereupon filed his bill in equity against the District of Columbia and John F. Cook, collector, to enjoin such sale thereof, and a temporary restraining order was granted on the 29th day of July of that year, which still continues in force. Neither Lyon nor the contractor Birch, was made a party to that bill; and the collector, upon the service of said restraining order, made no entry or memorandum of the same against the lots in question, but by mistake entered the memorandum thereof as applying to the same numbered lots in square 256. Jones v. Boston, 104 Mass. 461, 465; Blackie v. Hudson, 117 Mass. 181, 183-4; Carr v. Dooley, 119 Mass. 294. Mr. H. H. Wells, for appellee: There was no assessment, nor any other lawful step taken. The deed, until the prerequi sites of the tax laws are established, is a nullity. Burroughs, Taxn. 203, 332 and cases; Blackwell, Tax Titles, pp. 33-35, and cases; Williams v. Peyton, 17 U. S. 4 Wheat. 77 (4: 518); Parker v. Overman, 59 U. S. 18 How. 137 (15: 318); Amherst v. Sommers, 2 Term. Rep. 372; Colman v. Anderson, 10 Mass. 105; Agry v. Young, 11 Mass. 220; Stetson v. Kempton, 13 Mass. 282; Libby v. Burnham, 15 Mass. 144; Williams v. Brace, 5 Conn. 190; Thames Mfg. Co. v. Lathrop, 7 Conn. 550; Marsh v. Chesnut, 14 Ill. 223; Rivers v. Thompson, 43 Ala. 633; Thatcher v. Powell, 19 U. S. 6 Wheat. 119 (5: 221); Mason v. Fearson, 50 U. S. 9 How. 248 13:125); Games v. Stiles, 39 U. S. 14 Pet. 326) 10: 476); Powell v. Madison, 21 Ind. 335;) Marsh v. Clark Co. 42 Wis. 502; Worthington v. Whitman, 67 Iowa, 190; Forster v. Forster, 129 Mass. 559. The requisitions of the tax law are substantial and useful and cannot be dispensed with. Hughey v. Horrel, 2 Ohio, 232; Holt v. Hemphill, 3 Ohio, 233: Stead v. Course, 8 U. S. 4 Cranch, 412 (2: 660). The statute must be strictly if not literally complied with. Chandler v. Spear, 22 Vt. 388; Spear v. Ditty, 9 Vt. 282; Bellows v. Elliot, 12 Vt. 569; Sumner v. Sherman, 13 Vt. 609; Carpenter v. Sawyer, 17 Vt. 122; Myrick v. La Crosse, 17 Wis. 442; Atkins v. Kinnan, 20 Wend. 241; Sandwich v. Fish, 2 Gray, 298; French v. Edwards, 80 U. S. 13 Wall. 506 (20: 702). Every prerequisite to the power to sell the estate must precede its exercise. Davis v. Farnes, 26 Tex. 296; Yenda v. Wheeler, 9 Tex. 408; Robson v. Osborn, 13 Tex. 298; Wofford v. McKinna, 23 Tex. 36. Assessment cannot be increased without notice to the taxpayer. People v. Ward, 105 Ill. 620; O'Conner v. Mullen, 11 Ill. 57, 116. It is not allowable so to amend record as to render a sale valid which was invalid before. Langdon v. Poor, 20 Vt. 13; Judevine v. Jackson, 18 Vt. 470; Atkins v. Hinman, 7 Ill. Mr. Henry E. Davis, for appellant: Delay in returning the tax list will not in- 451; Early v. Doe, 57 U. S. 16 How. 610 (14: validate a tax otherwise duly imposed. Mills v. Gleason, 11 Wis. 470, 497-8. Requirement of approval is directory only and its nonobservance cannot affect the tax. Brady v. Bartlett, 56 Cal. 350. The appellee does not make by his bill a case remediable in equity, to remove the lien of the tax, or to set aside the deed after a sale. Cooley, Taxn. 2d ed. 779-781, notes and cases; Hannewinkle v. Georgetown, 82 U. S. 15 Wall.547(21: 231); Bissell v. Kellogg, 60 Barb.617. A tax cannot be released which does not already exist as a charge. Doe v. Deavors, 8 Ga. 479, 483; Rundell v. Lakey, 40 N. Y. 513, 517. An assessment of the expenses of widening a street upon the lands abutting thereon is an incumbrance upon such lands from the time of the order of widening. 1079); Ronkendorff v. Taylor, 29 U. S. 4 Pet. 349 (7: 882); Stead v. Course, 8 U. S. 4 Cranch, 403 (2: 660); Blackwell, Tax Titles, 359-362, and cases; Blight v. Banks, 6 T. B. Mon. 206; Blight v. Atwell, 7 T. B. Mon, 268. So much of the tax as is conceded ought to be paid must be tendered or the injunction will be refused. Huntington v. Palmer, 7 Sawy. 355; Morrison v. Hershire, 32 Iowa, 271; Grimmell v. Des Moines, 57 Iowa, 144; Miller v. Corbin, 46 Iowa, 150; Everett v. Bebee, 37 Iowa, 452; Connors v. Detroit, 41 Mich. 128; Phelps v. Harding, 87 Ill. 442. Mr. Justice Lamar delivered the opinion of the court: The court below held (1) That the Act of the common council of [184] November 2, 1869, levying a tax for the paving (2) That inasmuch as the omission of this lot (3) That as Kilbourn took the lots discharged of any lien imposed by the tax under consideration, any subsequent purchaser from him would acquire the same sort of title-that is, a title not affected by the tax certificates involved in this case. It therefore granted Alley's prayer for a removal of the cloud upon his title occasioned by such tax sale. "There are undoubtedly many statutory [185] 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 injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditious prescribed for its exercise." Judge Cooley in his work on Taxation refers to this case and says: "The doctrine therein To the correctness of these rulings the appel- stated seems a sound and just rule, and may be lant's counsel have raised several objections, reasonably believed to be in accord with the which it is necessary to consider. It is con- legislative will in the cases to which it is tended that the requirements of the statute, applied." Chief Justice Shaw, in the earlier which were not complied with, were manda-case of Torrey v. Millbury, 21 Pick. 64, lays tory only so far that it was necessary they down the same rule in nearly the same terms. should be substantially observed; and that un- The rule thus stated applies unquestionably less some injustice has been done or some to the case before us, which is a much stronger inequality occasioned, equity will disregard a one in the number and character of the premere failure to follow the law. This prop-requisites to the tax sale which were disreosition presents the question whether the fail garded. The provisions of statutes as to the ure of the commissioner to deposit with the form and mode of assessments, as to tax lists, register a statement of the taxes upon the lots, and the place where the tax lists are to be dethe failure of the register to place without deposited, are, according to the highest authority, lay in the hands of the collector a list of the designed for the benefit of the taxpayers and persons taxed, and the failure of the collector the protection of their property from sacrifice. to give the required notice to such persons, Sandwich v. Fish, 2 Gray, 298, 301; Cooley, constituted such a nonobservance of the re- Taxation, 216, 217, 218. When, therefore, Kilquirements of the statute as to render invalid, bourn, from whom the appellee derived title, as against the appellee, the tax sale and the purchased the lots in question, there was, so certificates thereof issued to the appellant. far as we can learn from the record in this case, nothing in the register's office or in the collector's office, or in the hands of the latter, to put a bona fide purchaser upon notice either actual or constructive. In view of the specific and imperative language of these provisions, and more especially of their nature and obvious purpose, we cannot doubt that they were intended as conditions precedent, a strict compliance with which was necessary in order to make the tax chargeable as a lien upon the lots. This question was directly presented and distinctly settled in the case of French v. Edwards, 80 U. S. 13 Wall 506 [20: 702], in which the rule was laid down with regard to directory and mandatory provisions of tax laws, which has been since approved by the federal and state courts. In that case the defendant asserted a title to the land in dispute under a deed executed by the sheriff of Sacramento County, California, upon a sale on a judgment rendered for unpaid taxes on the property described, and the whole case turned on the validity of this tax deed. It was a case of noncompliance with the requirements of the statute, the main question being whether the departure of the officer from such requirements rendered the sale invalid. The court said: We cannot concur with the counsel for ap- [186 pellant in the proposition that the requirements of the statute were substantially complied with. The erasure and interlineation in the assessment roll, made nearly twelve months after it was completed and deposited in the register's office, and after the lots not assessed had passed into the ownership of a bona fide purchaser, cannot be considered in any sense as a reassess ment or an amendment of the original assessment. It was simply an unauthorized and improper alteration, by a person with not even the semblance of authority, of an official document in the assessor's office, where the law required it to be. Its only effect, if it has any, is to show, in connection with other facts upon the record, that the withholding of the assessment of these lots was not a mere mistake of the officers, but the result of an agreement be Itween the then owner of the lot and the con [187] tractor, whereby the former promised to pay and the latter to accept 90 per cent of the contract price for the improvements in lieu of the certificates of indebtedness otherwise to be issued by the mayor, and that, in pursuance of this agreement, the assessment of the lots was omitted by the officer at the request of the owner, and those certificates of indebtedness were not issued until more than twelve months after the certificates for the other improve ments were issued, and until after the lands had been sold to Kilbourn. We are of opinion that Kilbourn obtained a title to the lots in question free from the lien of the alleged assessment, and that Alley acquired the same title alike unincumbered. But it is contended that even if we adopt the conclusion reached by the court below, as to the illegality of the tax sale and the nullity of the certificate issued to the appellee, still the case made by the appellee does not show such a cloud upon his title as calls for relief from a court of equity. In other words, that when the illegality of a tax sale is patent upon the face of the proceedings, as is the case as to the sale here complained of, the jurisdiction of a court of equity to remove a cloud does not attach. The case of Hannewinkle v. Georgetown, 82 U. S. 15 Wall. 547 [21:231], cited by counsel, fails to support the contention that such is the law of this court. That case was not a suit to remove a cloud from a title. The complainant filed a bill to enjoin the collection of a tax, alleged to be illegal, and the court decided that there was no remedy in equity to enjoin the collection of a tax, upon the sole ground of its illegality. freehold by means of a tax sale would be a mischief hard to be remedied. Even the cloud cast upon his title by a tax under which such a sale could be made would be a grievance which would entitle him to go into a court of equity for relief." It may be proper to observe that in the present case the illegality does not appear wholly on the face of the record, but that it is shown in part by evidence outside, to wit, the fact that the title to the land sought to be charged was acquired by a bona fide purchaser without notice. We think, therefore, that the allega tions of the bill and the facts proved in this case bring it fully within the equity jurisdiction of the court. Another ground upon which we are asked to reverse the decision of the court below is, that, apart from the tax-sale certificates, the Act, itself a notice to all purchasers, in terms levied the tax directly upon the lots in question, and thereby a lien attached at once, and, the lien never having been removed, the decree should have required the appellee to pay to the defendant the amount of the tax due, before granting the relief prayed for. It is clear that the Act does not in so many words create an express lien, and that the Acts of Congress do not expressly confer upon the corporation the authority to create such liens. The statement, therefore, must be taken as true, only in the sense that every municipal tax, in cases of local improvement, paving, etc., involves a lien upon the particular real estate on which it is imposed. The error of the argument of counsel, we think, lies in the assumption that the lien attaches at the date of the It is a well settled doctrine of this court that equity will not interpose to arrest the proceed-passage of the Act. The general rule is, that ings for the collection of a tax, upon the sole ground of its illegality. It is equally well set tled by the decisions of this court and the state courts that after the land has been sold, and a conveyance of some sort made to the purchaser, courts of equity have inherent jurisdiction to give relief to the owner against vexatious litigation and threatened injury to the market value of the land, by removing the cloud which such illegal sale, and the illegal claim arising from it, may cast upon the title. And in such case of damage, either existing or apprehended, equity will interpose for relief, even during the progress of the proceedings before the sale. In the Union Pacific Railway Company v. Cheyenne, 113 U. S. 516, 525 [28:1098, 1101], this court thus presents the whole law on this point: "It cannot be denied that bills in equity to re strain the collection of taxes illegally imposed have frequently been sustained. But it is well settled that there ought to be some equitable ground for relief besides the mere illegality of the tax; for it must be presumed that the law furnishes a remedy for illegal taxation. It often happens, however, that the case is such that the person illegally taxed would suffer irremediable damage, or be subject to vexatious litigation, if he were compelled to resort to his legal remedy alone. For example, if the legal remedy consisted only of an action to recover back the money after it had been collected by distress and sale of the taxpayer's lands, the loss of his when no time is expressly fixed by the statute for the lien to take effect, it accrues upon the assessment of the tax. Now, the Act of the common council imposed and levied a tax to defray the cost of the improvement, but it also declared that the tax should be assessed and collected in conformity with the provisions of certain Acts which prescribed, in detail, the mode, manner and time of assessment, and the different steps to be taken preliminary to such assesssment and collection. If any lien was created by the terms of the statute, it must have existed and attached according to such terms and conditions as were prescribed by the law creating it. In the case of Heine v. Levee Comrs. 86 U. S. 19 Wall. 655, 659 [22:223, 225], the court said: [188] "Nor need we decide whether taxes once law. fully levied are, until paid, a lien on the prop erty against which they are assessed, though it is laid down in the very careful work of Judge [189] Dillon, that taxes are not liens upon the property against which they are assessed, unless made so by the charter, or unless the corporation is authorized by the Legislature to declare them to be liens. But here no taxes have been assessed except those which have been released by the bondholders' accepting new bonds for the interest of the year so assessed. And it is too clear for argument that taxes not assessed are no liens, and that the obligation to assess taxes is not a lien on the property on which they ought to be assessed.” [280] From the record before us, we think the de- | 581); U. 8. v. Briggs, 46 U. S. 5 How. 208 (12: cision of the court below, that no lawful assess-119); Ward v. Chamberlain, 67 U. S. 2 Black, ment of the tax had been made; that no lien 430 (17: 319); White v. Turk, 37 U. S. 12 Pet. upon the lots in question exists; and that the 238 (9:1069); Nesmith v. Sheldon, 47 U. S. 6 appellant is not entitled to the relief prayed for How. 41 (12:335); Sadler v. Hoover, 48 U. S. 7 in his cross bill, accords fully with the de- How. 646 (12:855); Dennistoun v. Stewart, 59 cisions of this court above referred to. U. S. 18 How. 565 (15:489); Weeth v. New England Mortgage Co. 106 U. S. 605 (27:99). As the points disposed of are decisive of the case, we deem it unnecessary to discuss the effect of the temporary restraining order upon the validity of the collector's sale. The decree of the Supreme Court is affirmed. THE UNITED STATES, Plf. v. STEPHEN H. PILE. (See S. C. Reporter's ed. 280-283.) Mr. Justice Miller delivered the opinion of the court: The defendant below, who is the defendant Final judgment on indictment-power of court to be confined in the jail of Davidson County for three months, and to forfeit and pay to the 1. When the circuit court has entered its judg-United States a fine of $250, and the costs, for the judgment, thus entered, is final. 2. An order merely suspending the execution of the judgment until the next term of the court, there being no proceeding pending to rehear, reconsider, or modify it, does not give the court power, at its next term, to reconsider the whole case nor to set aside the judgment. 3. Such a case, therefore, is not one for a division of opinion in which either the court or the circuit judge (who did not sit upon the trial) has any power to act. [No. 206.] Argued March 15, 1889. Decided April 8, 1889. Na certificate of division in opinion between United States for the Middle District of Ten nessee, as to the sufficiency of an indictment On motion to dismiss. Dismissed. which execution should issue, and the defendant be confined until said fine and costs were paid, or he was otherwise discharged by due course of law. "Came the U. S. att'y and the deft. in proper person, and upon application of the deft., the execution of the judgment heretofore entered in November next, upon defendant entering into recognizance for his appearance at that date. And thereupon came John C. Wright, indebted to the United States in the sum of who, with defendant, acknowledged himself $2,000, conditioned upon the appearance of defendant on the 4th Monday of November to Mr. G. A. Jenks, Solicitor-Gen., for the abide by and perform the judgment of the The statute requires that the point on which the judges disagreed shall be certified during the same term. After the expiration of the October Term, the court had no power to set aside its judgment rendered at that term. court, and that he shall not depart without leave ant, the execution of the judgment herein was vs. S. H. PILE. } No. 3690. 1 Chitty, Crim. Law, p. 722; Com. v. Weymouth, 2 Allen, 144; Miller v. Finkle, 1 Park. Cr. Rep. 376; People v. Duffy, 5 Barb. 205; People v. Thompson, 4 Cal. 242; Beale v. Com. 25 Pa. 20; "Upon sufficient grounds appearing to the Com. v. Mayloy, 57 Pa. 295; Mathers v. Patter-court, the judgment of fine and imprisonment son, 33 Pa. 485; Catlin v. Robinson, 2 Watts, pronounced in this cause at the last term, and 379; Stephens v. Cowens, 6 Watts, 513; Albers v. the judgment rendered at the last term of this Whitney, 1 Story, 310. court on the motion in arrest of judgment [282 overruling the same, are hereby set aside and for nothing held. And thereupon comes the defendant, by his counsel, before the Circuit and District Judges, and moved that the judgment in this case be arrested, and for causes set forth the following, Mr. John P. Murray, for defendant in error: The court cannot, under the law, and will not, look to anything except the certificate of division of opinion. Luther v. Borden, 48 U. S. 7 How. 47 (12: "1. The indictment does not aver any spe-1 cific intent to defraud the United States or other party. "2. The indictment is delusive, uncertain, repugnant, or inconsistent. "And the motion coming on for argument before the honorable the judges aforesaid, and they being unable to agree as to whether the said motion is well taken or not, but having divided in opinion touching the same, at the request of the counsel of the defendant, a certificate of division is filed by the said judges, which is ordered to be made part of the record in this case. And no further steps will be taken in this case till the supreme court shall have adjudicated the question in said certificate set forth. The district attorney excepted to the order of the court setting aside the judgment of the court rendered at the last term, overruling the motion of defendant to arrest the judgment, and to the signing of division of opinion at this term of the court. "It is ordered that the clerk certify the entire record of this cause to the supreme court. We do not understand that the court at that time had any further jurisdiction of the case. There was no motion continued from the last term; there was no application or proceeding pending from the last term, nor anything coming over from it, except the suspension of execution. This did not leave the power of the court to reconsider the whole case still open. As it was not a case, therefore, for a division of opinion, in which either the court or the circuit judge (who did not sit upon the trial) had any power to act, we consider that there is nothing before this court, and the case must be dismissed here. The certificate of division related to a matter in which they had no right to act or to make such a certificate. It therefore brings nothing before this court for rereview; and the case is dismissed for want of jurisdiction. R. G. BROCK ET AL., Piffs. in Err., "It is further ordered that defendant enter The judges thereupon certified to this court V. NORTHWESTERN FUEL COM PANY. (See S. C. Reporter's ed. 341-343.) Jurisdiction of circuit court-allegation of 1. The circuit court has no jurisdiction of a suit 2. The allegation that it was doing business in the show that it was an Iowa corporation, the assignor 3. But if that allegation were held sufficient to Argued March 19, 1889. Decided April 8, 1889. N ERROR to the Circuit Court of the United IN ERROR to Court of a to review a judgment against defendant in an action to recover moneys alleged to be due under a written contract. Reversed. Statement by Mr. Justice Harlan: We are of opinion that the case here must be dismissed. When the circuit court had entered [283] its judgment against the defendant for an imprisonment of three months and a fine of $250 and had overruled the motion in arrest of judgment and for a new trial, it had finally disposed of the case. No new motion was made at that term of the court for any further consideration of the matter, and the judgment thus entered was final. It is true that the court made an order, upon the application of the defendant, by which the execution of that judgment was suspended until the fourth Monday in November, which was during the same term, and that on the 24th of November another order was entered still further suspending its execution until the next term of the court. But we do The Northwestern Fuel Company, a Minnenot consider that this order for the suspension sota corporation, brought this action, February of such execution set the judgment aside or 18, 1882, to recover from the plaintiffs in error, was founded on any further motion to recon-citizens of Iowa, the sum of $1,309.50, alleged sider that judgment. Although the mere execution of it was suspended until the next term of the court the judgment remained in full force, with no proceeding pending to rehear, reconsider or modify it. At the succeeding April Term the court entered the order above quoted, that the judgment of fine and imprison ment, and that upon overruling the motion in arrest of judgment, be set aside and for nothing held; whereupon, the questions above stated were argued upon the motion in arrest of judgment and the certificate of division made by the two judges on the question of granting the motion. to be due under a written contract, made July [341] [342] |