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The plan of the work embraces the entire field of litigation upon the subject. The subject is arranged in the most natural manner which suggested itself to the mind of the author; the authorities upon which he has relied are invariably cited in the margin, and the author trusts that the subdivision of the work into chapters, appropriately headed, and the addition of a Table of Cases and Contents, and a complete Index, will render it easy of reference to every lawyer.

Reducing to a system the rules which apply to tax sales, and the principles upon which they are founded, so as to render it perfect, is a task of much labor and difficulty. One of these difficulties grows out of the conflicting provisions of the revenue laws of the different States, and the peculiar local policy which governs their construction. This is alluded to by Judge McLean, in delivering the opinion of the Supreme Court of the United States, in the case of Games v. Stiles (14 Peters, 322), which came up from the State of Ohio: "The laws of Ohio, imposing a tax on lands, and regulating its collection, like similar laws in, perhaps, almost all the other States, are peculiar in their provisions, having been framed under the influence of a local policy. And this policy has, to some extent, influenced the construction of those laws. There can be no class of laws more strictly local in their character, and which more directly concern real property, than these. They not only constitute a rule of property, but their construction by the courts of the States, should be followed by the courts of the United States with equal, if not greater strictness, than the construction of any other class of laws." Again, the sale of land for the nonpayment of taxes, is a proceeding unknown to the common law of England. While the feudal tenure prevailed in that country, the enforcement of the collection of the tallage, scutage, or hidage tax, by a sale of the land itself, would have been con

trary to the policy of the feudal system. The vassal received the right of using and enjoying the land on condition of fealty and the performance of certain services, while the lord still retained the paramount right; and the fief was distinguished from allodial possessions, by the circumstance that it could not be aliened without the consent of the feudal lord. No tenant could be imposed upon him against his will. For this reason, the fief could not be seized under execution, or sold for taxes which may have been levied upon it. Indeed, the only involuntary alienation of a feud, known to the common law, was its forfeiture for treason. The taxes were collected either by the imprisonment of the delinquent, the distress of his goods and chattels, or an execution against them out of the Exchequer. In modern times the land tax is farmed out, with a clause of entry and distress, and when these fail, resort is had to a suit in the Exchequer, by the farmer of the revenue, and sometimes a composition takes place between the land-owner and the government, and the tax is redeemed by the payment of a gross sum. Thus the common law is a stranger to the power of sale exercised in this country over landed estates, for the non-payment of taxes assessed. Yet that law furnishes the principles by which this new power is to be governed. It is the chief excellence of the common law that it is flexible, and constantly expands with the exigencies of society; that it applies to new combinations of circumstances those rules which are derived from its fundamental principles. In the language of Judge Story, "May it ever continue to flourish here, for it is the law of liberty, and the watchful and inflexible guardian of private property and public rights."

CHICAGO, June, 1855.

POWER TO
TO SELL LAND

FOR NON-PAYMENT OF TAXES.

CHAPTER I.

OF THE FUNDAMENTAL PRINCIPLES WHICH CONTROL THE TAXING

POWER.

TAXES are defined to be burdens or charges imposed by the legislative power of a State, upon persons or property, to raise money for public purposes.1

There is a manifest distinction between the taxing power and that of the eminent domain. Both, in effect, appropriate private property to public uses. They differ only in degree. But taxation exacts money from individuals, as their share of a public burden; and the tax-payer, according to the theory of our system, receives a just compensation in the benefits conferred by the government, in the proper application of the tax.

When, however, property is appropriated by virtue of the right of eminent domain, it is taken, not as the owner's share of a public burden, but as so much more than his share. Special compensation is, therefore, to be made.2 The taxing power has no existence in a state of nature. It is the creature of civil society. Government begets its necessity. There must be interwoven in the frame of every government a general power of

1 6 Johnson, 92; 11 Johnson, 77; Bleecker v. Ballou, 3 Wendell, 263.

2 The People ex rel. Griffin v. The Mayor of Brooklyn, 4 Comstock, 419.

J

taxation. Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of revenue, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must necessarily ensue; either the people must be subjected to continual plunder, or the government must perish for want of revenue to support it.1

It may, therefore, be laid down as a principle of universal constitutional law, that the power to levy and collect taxes is an incident of sovereignty, without which no government could exercise the powers expressly delegated to it. In vain have the people, in their primary capacity, established government, and armed it with legislative, judicial, and executive powers, unless the means of performing these functions have also been granted to the government, either expressly or by implication. In the Federal Constitution there is an express grant to Congress, of the power to "levy and collect taxes." The State Constitutions do not confer this power upon the Legislature by any specific clause; it passes under the general designation of "Legislative power." It is implied, upon the principle, that a grant of legislative, judicial, and executive powers, carries with it, by construction, all the means necessary for their execution. It is also implied from the limitations to be found in the several State Constitutions, as to the manner of levying taxes. The power of taxation operates upon all persons and property within the territorial jurisdiction of a State. There is no limitation upon the power of the Legislature, as to the amount or objects of taxation. The interest, wisdom, and justice of the representative body, and its relation with its constituents, furnish the only security against unjust and excessive taxation. These

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1 Federalist, No. 30.

principles are fully sustained by the authorities. Such is the nature, necessity, and extent of the taxing power.

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Let us now proceed to an examination of those limitations imposed upon the legislature, as to the manner of levying and collecting taxes. One of the reasons, assigned by a great lawyer and statesman, in justification of the grant of an adequate taxing power to every government, is the protection of the citizen from the " CONTINUAL PLUNDER to which he would otherwise be subjected by the wants of the government, and the rapacity of the public agents. It is not to be presumed, therefore, that the people of this country, in framing their governments, designed, while conferring the taxing power for the express purpose of preventing the indiscriminate plunder of their property by public agents, to legalize a system by which the very evil they intended to guard against might finally prevail. Besides; one of the great ends of government is the protection of private property, which, in a state of nature, was held by a precarious tenure, and liable to constant invasion by superior force. It would not, therefore, be reasonable to suppose that the citizen, in entering into a governmental compact for the purpose of appealing to the strong arm of constitutional law, when his rights of property were invaded, intended to confer an arbitrary power of taxation upon the government, in the exercise of which his property would be rendered equally insecure as in the natural state. He would gain nothing by such a compact; true, he would have a security against the force and fraud of his neighbors, but would thereby become a prey to the passions of the entire community, acting under color of a written constitution. Such a view of the constitution of a free people would render it a mere license to governmental plunder. Happily for the people, the power of taxation which they have delegated to their government, is not an arbitrary

Providence Bank v. Billings, 4 Peters, 514; Brewster v. Hough, 10 New Hampshire, 138; Mack v. Jones,'1 Foster, 393.

2 Federalist, No. 30.

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