laws, say: "We think that any legal process, which was originally founded in necessity, has been consecrated by time, and approved and acquiesced in by universal consent, must be an exception to the right of trial by jury, and is embraced in the alternative, law of the land."" And in Harris v.

* Wood,1 the Court of Appeals of Kentucky remark, that *29 "Taxes were always recoverable (before the adoption of the Constitution), not only without a jury, but even without a judge, and the assessment of ministerial officers has been made to operate as an execution on the citizen, and the collector could distrain, &c." The same general doctrine has been asserted in other cases.2

"It is undoubtedly a principle of natural justice, that every person shall have an opportunity of being heard before he is condemned; and to a hearing every tax-payer is entitled — but not before the ministerial officers of the law. They act at their peril in selling the land of the person assessed, where the taxes have been paid, or where they have not strictly complied with the law of the land; and he acts at his peril in determining the question whether he will redeem or contest the validity of the sale. If he adopts the latter course, then, and not till then, is he entitled to be fully heard in his defence, in the judicial tribunals of the country." 3

Thus it will be seen, that all of the cases concede that the summary exercise of this power is against the spirit of the Constitution, but defend it upon the ground of immemorial usage and state necessity. But to use the emphatic language of the Supreme Court of Missouri, in the case above cited: "This very necessity begets another necessity, that in the execution of such a power the law shall be strictly and punctiliously complied with in all of its requirements." Besides, so cautious are the courts in confining the taxing power within the bounds of "state necessity," that they will never permit the enforcement of a penalty, or double, tax, in a summary

1 6 Mon. 643.

2 Doe v. Devours, 11 Ga. 79; 6 Mis. 64; Bergen v. Clarkson, 1 Hal. 852; Livingston v. Moore, 7 Pet. 469. See In matter of New York Schools, 31 N. Y. 574; Griffin v. Mixon, 38 Miss. 424.

3 Willard v. Wetherbee, 4 N. H. 118.

manner, under the "vague and indefinite pretence of taxation." Taxation includes the power to collect, in a summary mode,

*

the amount levied, from the necessity of the case. This *30 arbitrary but indispensable power must be used only to the extent absolutely demanded by the public necessities, and never abused by applying it to the purposes of penal enactments, and under the guise of taxation, to impose penalties which are to be enforced without recourse to the ordinary tribunals. The Constitution protects the citizen from all judgments against his person or property, otherwise than by a regular jury trial, as heretofore accustomed. Now the only difficulty in enforcing this guarantee, is to distinguish between a tax and a penalty. That is a tax, which bears equally upon the whole community, but that which is added to the burden of one citizen, because of his failure to list his land for taxation, called "dooming," and the double and triple tax levied upon him, by reason of his neglect to pay his tax when due, can in no proper sense be termed taxes; they are, in fact, penalties. Judge Richardson, in Burger v. Carter,1 says, "It is admitted that under this wise, protective provision, law of the land,' if the alleged tax shall amount to a penalty, for some infraction of the law, the tax collector cannot, by his authority, assess the penalty under the name of a tax, for if it is a penalty, a jury must decide upon the supposed infraction before the penalty can be inflicted."

1 1 McMull. Law, 420. See Scott v. Watkins, 22 Ark. 566.

CHAPTER II.

OF THE NATURE OF THE POWER TO SELL LAND FOR THE NONPAYMENT OF TAXES, AND OF THE STRICTNESS REQUIRED IN SUCH SALES.

ACCORDING to the strict rules of the common law, the only authority which a stranger could exercise over an estate in land, was a power of selling, leasing, or incumbering it. The power was voluntarily created by the owner. It was always a naked power, and general or special according to the will of the donor. Involuntary alienations were contrary to the policy of the feudal system, and consequently no estate could be divested by mere operation of law, and against the will of the owner, except in the single instance of its forfeiture for high treason; and then the power was exercised through the intervention of the judicial tribunals.

From the nature of voluntary alienations, and the mode of effecting them-by feoffment and livery of seisin - it is very certain that they did not admit of the annexation to them, of powers of appointment and revocation. The strictness of those times would not countenance the apparent repugnancy of giving or selling an estate absolutely to another, and yet reserving to the feoffor the privilege of recalling the estate, or vesting it in another, without a new livery. Such a transaction was not consistent with that public notoriety, which was, then deemed a necessary circumstance in the alienation of property.1 The only means which the feoffor had, of retaining any authority over land, after its alienation, was by annexing a *condition to the charter of feoffment, that upon the ten- *32

1 Sugden on Powers, Chap. 1, § 1.

der of a certain sum of money, or the performance of any other act by the feoffor, or his heirs, as stipulated between the parties, the feoffor should have a right of re-entry; so that the estate which was divested by the feoffment and livery of seisin, might. revest in the feoffor, by a strict performance of the condition, and a re-entry upon the land. But it will be remembered, that these conditions were regarded with jealousy by the courts, and a strict compliance with their terms was invariably exacted.2

When, however, the doctrine of uses was introduced, this difficulty no longer existed. Though such shifting of estates was repugnant to the nature of common-law conveyances, yet it was perfectly agreeable to the principles and intent of an equitable use, which had, for its main object, the enabling of owners to dispose of their estates in the manner most agreeable to themselves. On the enactment of the statute of uses, powers of revocation and appointment grew into a system and thus changed the entire policy of the common law. Such powers were exercised, either by the owner of the fee, or of some interest carved out of it, or by a stranger to the estate. In the first case the power was regarded as coupled with an interest, in the latter it was held to be a mere naked authority. Such was the general nature of common-law powers.

In modern times, when a more free and unrestricted power of alienation took place, and the interests of mankind required that the real property of the citizen should contribute to the common burdens of the community, and be subjected to the payment of his debts, involuntary alienations became frequent. The power to sell and convey the estate, to satisfy the charge thus created, was usually vested in some court or public officer. In this manner a

class of powers, to which the common law was an utter * 33 stranger, have sprung into existence; but which, * nevertheless, are controlled, in their execution, by the principles of that law. To that law we are, therefore, compelled to look for analogies in the construction of all statutes which confer power upon strangers, to be exercised over the landed 2 Sugden on Powers, c. 1, § 1.

1 Powell on Powers, 1, 2. 3 Powell on Powers, 2.

estates of the country. The power to impose a tax upon real estate, and sell it where there is a failure to pay the tax, is a high prerogative, and should never be exercised in doubtful cases.1 It is a naked power, which, in this instance may be defined to be a power operating upon an estate, in which the officer who executes it, has no manner of interest, and over which he has no control other than that which the law has expressly delegated to him.2

It is a statutory power, depending alone upon the will of the sovereign, and not upon the consent of the owner. The statute creates the power, selects the agent to execute it, and prescribes the formalities which shall attend its execution.3 Judge Sharkey thus defines a statutory power: "A power derived exclusively and directly from a statute, without any other agency, or the action of any judicial tribunal." 4

It is a special as contradistinguished from a general authority. The officer to whom it is delegated has no general power to sell land for the taxes charged against it, but simply a special one, to sell in the particular case mentioned in the statute creating the power.5

*It will, therefore, be perceived, that the officer in- * 34 trusted with the power of sale exercises a naked, statutory, and special authority, depending alone upon the high prerogative of the State, and the letter of the law, for its support. This much for the nature of the power.

The validity of a tax sale depends upon the authority of the

1 Beaty v. Knowler, 4 Pet. 152; Sharp v. Speir, 4 Hill, 76.

2 Williams v. Peyton, 4 Wheat. 77; s. c. 4 Pet. Cond. 394; Varick v. Tallman, 2 Barb. 113; Sharp v. Speir, 4 Hill, 76; 4 Smedes & M. 631; Waldron v. McComb, 1 Hill, 111; Clarke v. Courtney, 5 Pet. 319; Taylor v. Galloway, 1 Ham. 232; Hodge v. Wilson, 12 Smedes & M. 498; Hubbell v. Weldon, Hill & Denio, 139; Allen v. Smith, 1 Leigh, 248; Jesse v. Preston, 5 Grat. 120. 3 Doughty v. Hope, 3 Denio, 595; Varick v. Tallman, 2 Barb. 113; Sharp v. Speir, 4 Hill, 76; 4 Smedes & M. 630, 631; Hodge v. Wilson, 12 Smedes & M. 498.

4 Natchez v. Minor, 10 Smedes & M. 246.

5 Williams v. Peyton, 4 Wheat. 77; s. c. 4 Pet. Cond. 394; Varick v. Tallman, 2 Barb. 115, 116; Ronkendorff v. Taylor, 4 Pet. 349; Powell v. Tuttle, 3 Comst. 401; Sherwood v. Reade, 7 Hill, 431; Striker v. Kelly, 2 Denio, 330; James v. Gordon, 1 Wash. C. C. 335; 4 Smedes & M. 627, 628; Fitch v. Pinckard, 4 Scam. 69; Polk v. Rose, 25 Md. 153; Bunner v. Eastman, 50 Barb. 639.