is once conceded to the legislature, it furnishes a strong argument against the power, for the power of legislation is limited by the principles of natural justice, as well as the letter of the constitution. It is to the natural law we resort, for the purpose of securing equality in the levy of taxes. Now, suppose the taxable property of a State to be one hundred millions of dollars in value, and the necessities of the government require a revenue of one hundred thousand dollars, but the legislature, in the same law which levies the tax, exempts half of the entire value of taxable property from the levy, the consequence is, that the tax of those who are not thus exempt, will be exactly double the amount it would have been, if all had been taxed equally. When such a power is once conceded, the courts can prescribe no limit to its exercise, therefore it ought to be denied in toto. No weighty and insurmountable reason has, as yet, been assigned for the incorporation of such a principle into our constitutional code. On the contrary, so repugnant is the doctrine to every court of justice, that in order to restrain its operation, they have adopted the rule that every exemption must be couched in such plain and unambiguous language, as to satisfy the court, beyond doubt, that the legislature intended to create the exemption. Such a right can never arise by mere implication, and all laws granting the exemption are to be most strictly construed. The decisions upon this branch of the doctrine are uniform, and admit of no exceptions to the general rule.2

In the language of the Supreme Court of New Jersey: "A contract like this contended for, which is to bind future legislatures, to the end of time, from raising the necessary taxes for the support of the government, and the exigencies of the coun

1 Ante, pp. 6, 7.

2 Kendrick v. Farquar, 8 Ohio, 197; Armstrong v. Treasurer of Athens Co. 10 Ohio, 235; Cincinnati College v. State, 19 Ohio, 110; Anderson v. State, 23 Mississippi, 459; Stewart v. Davis, 3 Murphy, 244; Chegaray v. Jenkins, 3 Sandford, 409; Providence Bank v. Billings, 4 Peters, 514; Louisville Canal v. Commonwealth, 7 B. Monroe, 160; Brewster v. Hough, 10 New Hampshire, 138; Howell v. Maryland, 3 Gill, 14; Platt v. Rice, 10 Watts, 352; Seymour v. Hartford, 21 Connecticut, 481.

try, on a considerable district of the territory of the State, ought at least to be clear and explicit, free from all doubt and uncertainty, not depending on implication or construction."1 It is also held, that this power of exemption cannot be exercised by counties, towns, and municipal corporations, unless it is expressly conferred upon them.2 When, however, this power of exemption is clearly exercised by the legislature, effect must be given to it by the courts.3

The constitution of Maine provided that lands which belonged to the commonwealth of Massachusetts "shall be free from taxation, while the title to said lands remains in the commonwealth." In one case it appeared that Massachusetts had contracted to sell the land, but the vendee had not fully complied with the conditions of the contract, though the contract was in full force. This property was taxed and sold, as the property of the vendee, and it was held that the land was exempt, and the sale void. By the court: "This (the provision in the constitution) was intended to mean the legal title, and not the equitable, for it might be perfectly useless to assess and sell lands belonging to the commonwealth, to which an individual had such an equitable and conditional title as exists in the case before us; the condition might never be performed; and if performed, no legal or equitable process could compel Massachusetts to execute a deed, conveying the fee. We are, therefore, of opinion, that the tax in question was illegally assessed, and that therefore it is void, and, of course, nothing passed by the officer's sale to the plaintiff."4 Lands belonging to the State, or other taxing power, of course are not taxable, and a sale of them is, therefore, illegal.5

It is held in Ohio and Michigan, that lands sold by the

1 State v. Wilson, Pennington, 300.

2 Mack v. Jones, 1 Foster, 393.

3 State Bank v. People, 4 Scammon, 303; 2 Harrison, 80, and the cases above cited.

Emerson v. County of Washington, 9 Greenleaf, 88.

5 Buckley v. Osborn, 8 Ohio, 180; Stewart v. Shoenfelt, 13 Sergeant & Rawle,

United States, but upon which sale patents have not been issued, whereby the legal title remains in the Federal Government, are not exempt from taxation, by implication or express law. There is a controversy as to the right which the purchaser at the tax sale acquires under such circumstances, and the remedies to be adopted to enforce it, which will be discussed in a subsequent chapter.

1 Gwynne v. Neiswanger, 15 Ohio, 367; Astrom v. Hammond, 3 McLean, 107; Carrol v. Perry, 4 McLean, 25.

CHAPTER XXVI.

OF THE EFFECT OF THE SALE AND DEED, WHERE THE TAXES HAVE BEEN PAID BEFORE THE SALE.

THE delinquency of the owner is the essential fact upon which the power of sale rests. The authority of the government extends only to those cases where the owner neglects to pay the tax in arrear voluntarily. When this neglect is shown, the coercive remedies of the law may be resorted to, and not before. The law in substance declares, that the tax assessed shall constitute a lien upon the land, and if the tax is not paid within a specified time, the officer charged with the duty is authorized to sell. The right to sell is therefore founded on the fact of the non-payment of the tax. If the tax be paid before the sale, the lien of the State is discharged, and the right to sell no longer exists. When the owner has performed all of his duties to the government, no court would sanction, under any circumstances, the forfeiture of his rights of property. The law was intended to operate upon the unwilling and the negligent citizen alone. Legislative power extends no further. The sale involves an assertion by the officer that the taxes are due and unpaid, and the purchaser relies upon this, or on his own investigations, and his title depends upon its truth. The title of the purchaser is contingent, so far as it may be affected by proof establishing the fact that the tax had been paid before the sale was made. This is an implied condition, annexed to every grant of this kind, founded on a sound construction of the law, the power of the government in collecting taxes, and the principles of natural justice. The constitution and the ordinary law, he is bound to know, and justice is presumed to have

a lodgment in the breast of every man even in that of a purchaser at a tax sale, who is said to have "but little conscience."

Therefore, every purchaser takes a deed subject to the condition that the taxes have not been paid, and if his title is defeated, he must look to the government for that relief which such a case may require. The return of the delinquent list will justify a sale by the officer, unless the taxes were paid to him in person, or he had knowledge of the fact of payment, but as between the owner and purchaser, the return is not conclusive evidence of the fact of non-payment. The validity of the sale and conveyance necessarily depending upon the fact of delinquency, when this is drawn in question, it is competent to prove payment; and in permitting the owner to make this proof, no rule of law is violated; it is not permitting parol evidence to impugn or destroy a written contract, but it is consistent with the deed; and if the deed is thereby defeated, it arises upon the proof of a fact, upon which, by law, the operation of the deed was made to depend, at the very time of its execution. It would be a monstrous doctrine to hold otherwise.1

The same principle is applied to a sheriff's sale under execution; there it is held that a sale, based upon a satisfied judgment, is absolutely void; 2 though in one case it was held, that a sale to a bona fide purchaser would be sustained, unless the satisfaction appeared of record.3 The tenacity with which the courts adhere to the doctrine that a sale and deed are nullities, where the taxes were in fact paid prior to the sale, is most strikingly illustrated by the cases of Rowland v. Doty, Jackson

1 Curry v. Hinman, 11 Illinois, 420; Jackson v. Morse, 18 Johnson, 441; Blight v. Banks, 6 Monroe, 206; Rowland v. Doty, 1 Harrington, 3, 11; Hunter v. Cochran, 3 Barr, 105; Dougherty v. Dickey, 4 Watts & Sergeant, 146; Stanley v. Smith, 1 Carolina Law, 511; s. c. Bat. Ed. 124; Aukney v. Albright, 8 Harris (Penn.), 157.

26 Ohio, 430; 4 Wendell, 474.

8 1 Cowen, 622.