nary power under a special statute prescribing its course, we think that course ought to be exactly observed, and those facts especially, which give jurisdiction, ought to appear, in order to show that the proceedings are coram judice." In other words, all of the facts which are essential to the exercise of the power, must affirmatively appear upon the face of the record; they cannot be supplied by proof, or made out by intendment. The authorities upon this point are uniform.2

If, on the other hand, this special authority is conferred upon an inferior tribunal of limited jurisdiction, or upon commissioners, or upon any other individuals who act quoad hoc in a judicial capacity, the rule is still more strict. It is thus laid down. Where a special authority is delegated by statute to particular persons, or to any inferior tribunal, affecting the property of individuals against their will, the course prescribed by law must be strictly pursued, and appear to be so upon the face of the proceedings, or the power is not well executed. And it makes no difference in the application *40 of this principle, whether the question comes before the superior courts by certiorari or collaterally. If the law has not been strictly complied with, the proceeding is a nullity, and the adjudication gives it no additional validity.

In the case of Rex v. Croke, which was a proceeding to condemn property for public uses, by the court of Quarter Sessions, before a jury summoned by the sheriff, the statute required, that the precept for a jury should be issued on the application of "the Mayor, Aldermen, and Commons of London, in common council assembled," and that notice in writing should be given to the mortgagee in possession, &c. The order of the Quarter Sessions recited an application by the "Mayor, Commonalty, and Citizens of London," that proof of due notice

1 Thatcher v. Powell, 6 Wheat. 119; s. c. 5 Pet. Cond. 28.

2 Zurcher v. Magee, 2 Ala. 253; Bates v. Branch Bank of Mobile, 2 Ala. 689; Brown v. Wheeler, 3 Ala. 287.

3 Smith v. Hileman, 1 Scam. 323; Sharp v. Speir, 4 Hill, 86; Rex v. Croke, 1 Cowp. 26; Davison v. Gill, 1 East, 64; 7 Term, 363; 1 Bur. 377; 4 Bur. 2244; Gilbert v. Columbia Turnpike Company, 3 Johns. Cas. 107; State v. Scott, 3 Green (N. J.), 340; Levy Court v. Gwynn, 4 Har. & J. 227.

4 1 Cowp. 26.

had been given to Croke, the defendant, and omitted to state whether Croke was a mortgagee in or out of possession. On certiorari, the court of King's Bench quashed the order of condemnation, 1. Because of the misrecital of the corporate name of the city of London; 2. Because the record did not set out the notice, and aver that it was in writing; and 3. Because the order did not show that the defendant was a mortgagee in possession of the land condemned. Gilbert v. Columbia Turnpike Company, was a proceeding to condemn land for the use of the turnpike company, under a statute which provided, that in case of a disagreement between the company and the owner, the president and directors might apply to one of the judges, or assistant justices of the court of Common Pleas of Columbia county, not interested in said road, and the judge or justice should appoint three commissioners, freeholders of the county, and not inhabitants of any of the towns through which the road shall pass. The law further provided, that the commissioners should name a day for a hearing, and give the owner four days' notice of their appointment, and of the time and

*

place of meeting, take an oath and proceed to inquire, &c. 41 The inquisition did not recite a disagreement; the noninterest of the judge who appointed the commissioners; that the commissioners were not inhabitants of any town through which the turnpike passed, and that a written notice was given to the owner. The inquisition was brought before the Supreme Court by certiorari, and quashed for the reasons above named. In each of the preceding cases it will be seen that the question came directly before the court, on certiorari, to quash the order itself.

In Davison v. Gill,2 an order was made by two justices of the peace, under the 13 Geo. III., c. 78, sec. 19, for stopping up an old footway, and setting out a new one. A schedule was annexed to the statute, giving the form of the order, and the statute declared that the form set out in such schedule, "shall be used on all occasions, with such additions and variations only, as may be necessary to adapt it to the particular exigency

of the case." The form referred to sets forth the length and breadth of the new or substituted footway. The justices omitted to state in their order the length and breadth of the substituted way. The action was trespass, q. c. f., for breaking and entering the close of the plaintiff. The defendant justified upon the ground that the locus in quo was part and parcel of a public footway. The validity of the foregoing order of the justices thus came up, the close being parcel of the old footway stopped up by them. Judgment was given for the defendant, Kenyon, C. J., saying, "The court are always disposed to support, as far as they can, the acts of the magistrates below, but we must take care not to let our wishes carry us beyond the bounds of law. The justices have a limited power given them under the act of Parliament, and it must appear that this order was made by virtue of that power, &c. The words of the act are peremptory. I cannot, therefore, say that these words are merely directory. Power is given to the magistrates to take away, on certain conditions, a right which the public before enjoyed, and this is to be done in a certain prescribed form, &c. Now here is a material *42 variance in the order, from the form prescribed, for it does not set forth the length and breadth of the new path set out in lieu of the old one."

Smith v. Hileman,1 was an ejectment to recover a parcel of land, which the defendant claimed under a sale made by an administrator to pay debts, in pursuance of the order of the Circuit Court. The statute under which this proceeding took place, required the administrator to set forth in his deed of conveyance," the order of the court at large." The deed, in this case, omitted to set forth the order at large, but recited it substantially. The court held that no title passed by the deed. Smith, J., in delivering the opinion, says, "The reason of this precision we are not at liberty to inquire into, nor what the supposed necessity may have been, in the opinion of the legislature, for its adoption. It is sufficient to perceive, that the recital of the substance of the order, is not a compliance with, or an observance of, the act. A special power granted by

1 1 Scam. 323.

statute, affecting the rights of individuals, and which divests the title to real estate, ought to be strictly pursued, and should appear to be so on the face of the proceedings." The last cases cited arose collaterally, and the proceedings, in each case, were treated as nullities.

It will thus be seen, that the common-law rule which distinguishes between general and special powers, is uniformly and consistently applied by the courts in England and the United States, to every class of powers, whether they are regarded as common-law authorities, those deriving their effect from the statute of uses, or statutory powers. It has already been shown that the collector, or other officer, has no general authority to sell land for the non-payment of taxes, but a special power to sell in the particular cases prescribed by law. Wherefore it is held that those cases must exist, or the power does not arise; and when it does arise, all of *43 those formalities, which the law creating the power has

imposed upon its own officers, for the security of private rights, must be faithfully observed in the execution of the power. The power itself is a high prerogative, and the exercise of it, a rigorous proceeding. It divests the owner of his title without his consent, and very often for a trifling consideration; and the legislature have usually shown a cautious solicitude to protect the rights of private property, by clogging the exercise of this power with conditions and forms, intended as guards against oppression and fraud.2

The doctrine of the common law, which requires that those conditions shall be complied with, and forms strictly observed, more forcibly applies to ministerial officers, charged by statute with the execution of a special authority to be exercised over the estates of individuals, than in those cases where one citizen delegates a special power to another; because those officers are agents, appointed under the authority of the general law, in the selection of whom, the party to be affected by their acts has no immediate agency, and over whom he has no man

1 Ante, p. * 33.

2 Tallman v. White, 2 Comst. 70; Hughey v. Horrell, 2 Ham. 231; Farnum v. Buffum, 4 Cush. 267.

ner of control. He cannot confer the power upon another, whom he might esteem more worthy of confidence, but must abide the act of the agent of the law.1

Besides, in this class of powers, the government, by its agents, acts in hostility to, and with the view of subverting the title of the citizen, for an alleged breach of its revenue regulations. Under such circumstances the presumption is, that the owner has violated no law- neglected no duty enjoined upon him, which shall have the effect of working a forfeiture of his estate. He waives nothing by silence, stands upon all of his rights, and is permitted to insist upon a strict compliance with all of those conditions which the law has imposed upon its own agents, for their guide in the execution of the power.2 *Another reason assigned for this *44 strictness is that the power of the officer to sell land for the non-payment of taxes by the owner, is a naked one, not coupled with an interest; and in all such cases, whether the power is general or special, the common law requires that every prerequisite to the exercise of the power, must precede it; that the agent must pursue the power, or his act will not be sustained by it. Judge Scates, in Hinman v. Pope, well remarks, that "this vigilance of the law upon naked powers, is a substitute for that vigilance which INTEREST always prompts in those who execute a power coupled with an interest.'

Again, proceedings of this kind partake somewhat of a judicial character, yet, in point of fact, they are usually ex parte, always summary, and the notice to the owner is merely constructive. The course of the common law in judicial proceedings is thus departed from that fundamental principle of natural justice which requires actual notice, and an opportunity of a hearing before condemnation, is violated in spirit, and the owner of the land, under pretence of delinquency, "is disseised of his freehold without the judgment of his peers or the law of the land." It is conceded that the collection of taxes cannot, in general, be made by ordinary suits, and that

1 Schmidt v. Gatewood, 2 Rich. Equity, 170; Dudley v. Little, 2 Ham. 504. 2 Varick v. Tallman, 2 Barb. 113.

3 Vide authorities cited ante, p. * 33.

4 1 Gilm. 131.