CHAPTER VI.

OF THE LEVY OF THE TA X.

THE levy of a specific sum of money, upon each tract of land embraced in the list, by the proper authority, is another essential link in the chain of a tax title, without which the purchaser acquires no rights whatever. By this assessment the amount which every citizen is bound to pay for the public benefit is definitely fixed; and to it he is compelled to resort, for the purpose of ascertaining how much money he must pay to that public, as his share of a common burden, and thus prevent a sale of his property. It is the authority upon which the collector proceeds to demand and enforce the collection of the tax, he has no other means of ascertaining the sum assessed against an estate, — and in this respect it may be regarded as analogous to an execution, issuing upon a judgment. It is the guide of the owner and officer in redeeming the land after the sale. Again, it is evident that the tax must be due and unpaid, in order to authorize a sale of the land upon which it was assessed. This can only be shown by proof that the land was not only listed and valued, but that the tax charged against it for the current year was in fact levied by competent authority, and in the time and manner prescribed by law. When such evidence is produced, the presumption is that the tax thus levied is unpaid, upon the same principle that a promissory note is evidence of a continuing debt, until its extinguishment by payment is established.1

1 Pentland v. Stewart, 4 Dev. & Bat. 386; Reeves v. Towles, 10 La. 276; Baker v. Towles, 11 La. 432; Carmichael v. Aiken, 13 La. 205; Nancarrow v. Weathersbee, 6 Mart. La. 347; Winchester v. Cain, 1 Robinson, La. 421; Nalle

* The onus probandi is upon the party claiming under *155 the sale.1 Nor is there any difficulty in making proof of this fact, if it ever existed. The State tax is fixed by a public statute; the list will show the valuation of the land, and by computing the percentage of tax fixed by the law upon that valuation, it can be seen in an instant whether the tax is a legal one or not. When the tax is levied by a county, city, town, or other corporation, a record is invariably required to be made of the order; and the books themselves, or certified. or sworn copies thereof, are admissible in evidence, and upon an inspection of the list, and a comparison of it with the law and the order, the legality or illegality of the tax will appear.2 The tax, of course, must be levied by the tribunal or persons to whom the power is delegated. And it is held in New Hampshire, that the levy of a tax at a town meeting not legally warned, is illegal and void. In North Carolina, the justices of the county constitute the county court, with power to levy taxes. The number of justices corresponds with the number of districts in the county, except where their number has been reduced by death, resignation, or otherwise. The law required a majority of the whole body to be present when a tax was levied. In a case where the record showed that twenty-two were present, the court intended they were a majority.1

The exercise of the power to levy taxes, by the fiscal agents or officers of a county, city, town, &c., is not a judicial, but a municipal act, and is discretionary within the *156 limits prescribed by law, and the order of the tribunal

v. Fenwick, 4 Rand. 591-594; Lessee of Holt's Heirs v. Hemphill, 3 Ham. 232 ; s. c. 1-4 Ohio Cond. 551; Lessee of Dresback v. McArthur, 6 & 7 Ohio, 307; Garrett v. White, 3 Ired. Eq. 131; Smith v. Corcoran, 7 La. 46; Bratton v. Mitchell, 1 Watts & Serg. 310; Conrad v. Darden, 4 Yerg. 307.

1 Mason v. Roe ex dem. Woods, 5 Blackf. 98; Nalle v. Fenwick, 4 Rand. 594; Pentland v. Stewart, 4 Dev. & Bat. 386; Mayhew v. Davis, 4 McL. 213; Mix v. Whitlock, 1 Tyler, 30.

2 Nalle v. Fenwick, 4 Rand. 594; Doe ex dem. Weed v. McQuilkin, 8 Blackf. 335; The Proprietors of Cardigan v. Page, 6 N. H. 182; Spear v. Ditty, 8 Vt

419.

3 The Proprietors of Cardigan v. Page, 6 N. H. 182; Nelson v. Pierce, 6 id. 194; Lisbon v. Bath, 1 Foster, 319.

+ State v. McIntosh, 7 Ired. 68.

levying the tax, cannot ordinarily be reviewed on certiorari, or otherwise. If the assessment be made in violation of law, it is a void act, the collector, in enforcing its collection, is a trespasser, and the purchaser acquires no title at the sale.1 (a)

The Illinois statute of February 26, 1839, authorized and empowered the county commissioners' court to levy a tax for county purposes, not to exceed one-half per cent upon every one hundred dollars' worth of real or personal property, and then provided, "which tax shall be levied by said county commissioners at their June term in each and every year." 2 In several instances the county commissioners failed to levy the tax until the December term following. In such cases is the tax legal? This will depend upon the question, whether this provision is imperative — a limitation, in point of time, upon the power of the commissioners - or merely directory. Under a directory statute, a duty should be performed at the time specified, for the sake of uniformity, and because the legislature have so ordered it, but it may be valid if performed afterwards; while under a peremptory law, the act must be done at the precise time specified, or it is void. The general rule undoubtedly is, that where a statute directs a court or officer to perform a duty, or exercise a power, at or within a specified time, without any negative words restraining the doing of it afterwards, the naming of the time will be considered as directory, and not as a limitation of authority. But a negation of authority, at any other than the time specified, need not exist in words; it may arise by implication, from a view of all the provisions of the statute, manifesting an intent, on the part of the legislature, to restrain and limit the execution of 157 the power, or the performance of the duty in point

*

1 Marr v. Enloe, 1 Yerg. 452; County Court of Obion v. Marr, 8 Humph. 634. (a) That if the assessment roll is not complete and in a condition to be delivered to the board of supervisors, they have no jurisdiction to issue a warrant for the collection of taxes. See Van Rensselaer v. Witbeck, 7 N. Y. 517; but see Parish v. Golden, 35 id. 465.

2 Laws, 1838-9, p. 11, sec. 20.

3 Webster v. French, 12 Ill. 302.

4 Pond v. Negus, 3 Mass. 230; 6 Wend. 486; St. Louis County Court v. Sparks, 10 Mis. 117; Walker v. Chapman, 17 Ala. 126.

of time.1 Look at the provisions of the act in question. At the March term of the court, the commissioners were required to appoint assessors and collectors for the ensuing fiscal year. The assessment was to be completed and returned on or before May 1.3 Appeals from the assessment were to be taken and heard at the June term. The clerk of the county commissioners' court was required to return to the auditor of State, the aggregate amount of State tax assessed in his county, immediately after the June term of his court annually, and by the first day of July. On the second Monday of August, annually, or as soon thereafter as the collector should be sworn into office, the assessment roll was to be delivered by the clerk of the county commissioners' court, to the collector. The collectors were required, as soon as the lists of taxable property were thus delivered to them, to proceed and collect the taxes, by demand of the owner, and distress of his goods. A lien upon the goods of the delinquent was created after demand and refusal, but not to continue to exist "longer than to the expiration of the year for which the taxes are due." 8 Personal property was not to be seized until twenty days after the demand of the tax, and no sale to take place until fifteen days' notice of the time and place, when and where it was to be made. If the first distress was insufficient, a second seizure and sale was authorized, upon giving like notice.10 The State and county taxes were directed to be collected together. At the end of each month, the collector was required to pay over to the county treasurer, all taxes collected during the preceding month.12 The collector was made responsible for all State and county taxes charged upon his list, unless he used diligence to collect them, and failed in his efforts.13 The law required final settlements to be made with the auditor and county

* commissioners' court, in March, annually. And the *158

1 Marsh v. Chestnut, 14 Ill. 223; Billings v. Detten, 15 id. 218; Thames Manufacturing Co. v. Lathrop, 7 Conn. 550.

collector was required to report the delinquent list, and demand judgment against the lands embraced in it, at the first term of the Circuit Court to be held after his settlement was made.1

It would seem, upon a review of these various provisions, that the statute was imperative, and not merely directory, in requiring the county commissioners' court to levy the county tax at their June term. 1. The tax list could not be placed in the hands of the collector on the second Monday in August, if there was a failure to levy the tax at the June term, because the next term of the county commissioners' court would not be held until September. In consequence of this neglect, less time would be allowed to the collector to enforce the payment of the taxes upon his list, against delinquents, than was contemplated by the legislature, and yet he would be held responsible for a failure to use the utmost diligence. He is entitled to the full time designated in the law. 2. If the time given the collector should prove insufficient, the State would, nevertheless, lose her lien upon the goods and chattels of the delinquent. 3. The county would be deprived of its monthly resources, by reason of the neglect of the commissioners to levy the tax in season. 4. The State might be delayed in the collection of her revenues, inasmuch as they were required to be collected along with the county levy, or separate lists for the State and county taxes must be delivered to the collector, which would be contrary to the requirements of the statute. 5. There would be no uniformity in the revenue system, and embarrassment to all concerned would be the consequence. Lastly, as the basis of the county levy is the assessment roll, which the law requires to be completed and returned to the clerk of the court, on or before the first day of May, and which is held to be imperative,2 no reason can exist for delaying the levy after the June term.

The power to levy the tax is a limited one, and if the * 159 limits * prescribed by the law are transcended, the levy

1 Sec. 25.

2 Marsh v. Chestnut, 14 Ill. 223; Billings v. Detten, 15 id. 218. See Brown v. Hogle, 30 id. 119.