strued, and where authority was given to a board, in cases where the local assessment was insufficient for the purpose intended, because of delinquency in those assessed to make a new assessment to cover such delinquency, they were considered as having no power to make a special assessment to cover deficiencies in the first assessment. And if the first assessment is void, the second to make up deficiencies is likewise void. And so in Maryland, when the grading and paving of an avenue was authorized to be done on an application of the property owners abutting on the avenue to the mayor and council, who were to determine whether the work was consistent with public good, the expense of the work to be borne by the abutters, the application was made to the city commissioners, instead of the mayor and council. The work was done, the city passed an ordinance ratifying the contract to grade the avenue, and the acts of all its officers in relation to it. The abutters filed a bill to restrain an assessment on their property, and the proceedings were held void, the city commissioners acted without jurisdiction. After this decision the legislature empowered the city to pay the contractor, and assess a tax on the abutters to reimburse the city. This act of the legislature was declared void as an exercise of judicial power, the court considering the act as a substantial reversal of their decision. And so in other cases the doctrine is announced that irregularities in proceedings to levy local assessments may be cured by subsequent legislative action, but if the original proceedings were void because of the illegality of the tax, and not on account of the mode of assessment, they will not be aided by legislative action.5 Under an act authorizing the bonding of a town in aid of a railroad by a commissioner, by whom the stock was to be subscribed and bonds issued, provided certain consents were obtained and proof filed, the commissioner deeming the consents to be obtained in accordance with the statute, subscribed for the stock and issued the bonds, and delivered them to the company in payment of the stock. A controversy having arisen as to the regularity of the consents, the legislature enacted that "when bonds have been issued by the commissioner or commissioners of any town, and the said railroad shall have been constructed through such town, the bonds shall be valid and binding on said towns." This act made the bonds valid. 1 Chicago v. People, 56 Ill. 327; Dean v. Carleton, 27 Wis. 522. ? Workman v. Chicago, 61 Ill. 463. 3 Baltimore v. Patter, 18 Md. 284. 4 Baltimore v. Hoon, 26 Md. 194. 5 Dill v. Roberts, 30 Wisc. 178; Dean v. Borchenius, 30 Wisc. 236. The may principle on which the case is based is, that all power on the subject is derived from the legislature, and that the consent of the taxpayers gives no validity to the legislative grant. The legislature and often does affix as a condition of the exercise of the power by the municipality, that a majority of the tax-payers shall consent, but it may require that consent to be given in any other mode. It may require it to be given by a commissioner or other officer, for the whole power is the creature of the legislative will. And so it may change or alter the conditions of the exercise of the power as it sees fit, if the rights of creditors are not impaired. This act simply changed the condition on which the power was to be exercised. This case was distinguished from The People v. Batcheller,1 where it was held that a town could not be compelled to subscribe to the stock of a railroad and issue its bonds in payment. "The one is merely remedial of defects occurring in the exercise of a power legitimately conferred, and making certain facts conclusive evidence of the proper exercise of the power. The other imposes, or attempts to impose, an obligation without the consent and against the will of the party to be bound, when no act of performance has taken place." Nor does the case of The People v. Batcheller at all conflict with an act allowing the tax-payers of a town to decide whether the town will donate its bonds to a railroad and levy taxes for the payment thereof. Such an act merely enables the town, which possessed no inherent power on the subject, all its powers coming from the legislature, to aid the railroad. The principle of the plenary control of the legislature over the powers of the subdivisions of the State will allow it always in the case of town bonding and local assessments to cure any defects in the execution of the power, by subsequent legislation recognizing the validity of the bonds, or directing in the case of assessments a reassessment of the tax. The Maryland case cannot be reconciled with this principle. 153 N. Y. 140. 257 N. Y. 193, 194, Johnson, Com'r. 3 Town of Queensbury v. Culver, 19 Wall. 83. CHAPTER XXI. MODE OF ASSESSMENT AND COLLECTION OF TAX-REMEDIES FOR ERRONEOUS AND ILLEGAL TAXATION — COMPULSORY PAYMENT OF MUNICIPAL DEBTS BY TAXATION. § 140. Assessment and Collection of the Tax.-The tax in counties and cities, is assessed in the same mode as the State tax. In many of the States the same officer makes the assessment for both State and county taxes. In such cases, the same roll or list is used. There are two columns in addition, one for the percentage and the other for the amount of the tax to be paid by each person on the roll, and the assessment for county purposes consists in a simple extension of the county tax in the proper column. But even where the tax, as in the case of cities, is not assessed by the same officer, nor on the same persons and property, the principles on which the assessment is made, are the same as in case of State taxation. The power of the city to tax persons and property is to be ascertained from the charter, but when the power is admitted, then all questions as to the description of the property, real and personal on ths roll-the effect of domicile and residence as to persons to be taxed; the questions as to what persons are to be assessed with property, with reference to the title or interest in the subject-matter; the valuation of the property, and the mode in which the roll is completed and authenticated-are to be regulated by the same rules which we have discussed under the head of State taxation.1 Collection of the Tax.-The same mode is pursued as in the case of State taxation. The roll or list is placed in the hands of an officer of the city or county; often in counties it is the same officer who is authorized to levy on the goods and chattels of the tax-payers. Where such power is given the officer by the charter of the city, or the statute in reference to the county, the rules which we have discussed as to State taxation apply to municipal taxation. The doctrine asserted in that portion of the treatise, that the assessment of the tax creates such an obligation on the tax-payer that the county or 1 Ch. 11 and 12, §§ 95-100. 2 Ch. 14, § 105–109. city levying the tax may maintain an action to recover it, is fully sustained by recent cases. Even where there is a summary remedy by distress or seizure of goods, provided by statute, the statutory remedy is merely cumulative. But in the collection of the tax, as in questions of the power to impose the tax, the statute giving the authority to the city to impose and collect taxes must be looked to in ascertaining the extent of that authority, and such statutes are strictly construed. Where the charter authorized the city to hire out persons for their taxes, it did not justify the imprisonment of such persons for a failure to pay taxes. So where the charter provided that, "if any person fail to pay any tax levied on his property, the town collector may recover the same by civil action in the name of the corporation,' the corporation cannot under the power thus conferred, pass an ordinance for the collection of taxes by seizure and sale of goods and chattels,s Where a municipal corporation has power to impose fines for a violation of its ordinances, such a power does not include the power to enforce such fines by distress and sale, or forfeiture of the goods of the offender; the latter power cannot be exercised unless expressly given by the legislature. And upon the same principle, it is held that the power to "levy and collect" taxes does not of itself vest the power to enforce the collection by a distress and sale of the property of the tax-payers. Such a power must be expressly given, or the implication must be clear and beyond doubt.5 In the case last cited, the charter gave power "to provide for the sale of real estate for the non-payment of any taxes due thereon." This provision was not considered as giving authority to sell land for a local assessment, but was confined in its operation to general taxes. The fact that the State collects its taxes by distress and sale, gives no additional weight to the claim of a municipal corporation to exercise the power. The authority of the corporation is derived entirely from the charter, and to that alone we must look. But in construing this, as all other written instruments, we must look to all its provisions, and if the charter in one part merely gives the power to "levy and 1 Amite City v. Clements, 24 La. Ann. 27; Dugan v. Baltimore, 1 Gill & J. 499; Eschbach v. Pitts, 6 Md. 71; City of Dubuque v. Ill. Cent. R. R. Co. 39 Iowa, 56. This last case contains an able review of all the cases on the subject. 4 Dillon on Municipal Corporations, §§ 270-287, 656, and cases cited. Annapolis v. Harwood, 32 Md. 471; Ham v. Miller, 20 Iowa, 450; Merriam v. Moody, 25 Iowa, 163; Dubuque v. Harrison, 34 Iowa, 163; Camden v. Allen, 2 Dutch. 398; Paine v. Spratly, 5 Kansas, 525. collect" taxes, but in another part provides, "that the mayor and city council shall have power, by ordinance, to direct the manner in which property advertised for sale or sold for taxes, by authority of the corporation may be redeemed," such a provision clearly implies that the power of sale is vested in the corporation, and in connection with the power to "levy and collect" taxes, justifies the exercise of the power of sale for the non-payment of taxes due the corporation.1 Lien for Taxes.-Where the statute gives to the municipal corporation the power to levy and collect taxes, and to enforce the payment by a sale of the goods and chattels of the tax-payer, then when the roll goes into the hands of the collector of taxes, it has the force of an execution in the hands of a sheriff, and is a lien on the personal estate of the tax-payer from that time. If completed by an actual levy on such estate, the lien is precisely similar to that of the State, and is governed by the same rules.2 statute, and has The lien on real estate for taxes is the creature of no existence unless there be some statute creating it. But it is said that the power to sell land for non-payment of taxes authorizes the municipal corporation to create a lien for taxes on real estate by ordinance. If the lien be created by statute, but no mode indicated for enforcing the lien, it may be enforced in a court of equity by suit in the name of the municipal corporation, in the same manner as a judgment lien.5 Where the taxes were made a lien, "to be sued for and recovered in like manner as if the houses and lots were mortgaged for the payment," a foreclosure suit was brought and the premises sold, but there was a defect in the proceedings which avoided the sale. A second suit was brought against the owner. In this suit it was decided that the first sale and payment of the purchase money to the corporation did not satisfy the debt. The first proceedings being void, the owner lost nothing, and the purchaser gained nothing, and the corporation secured nothing which it could legally retain, for it is liable for the purchase money received under the void sale. The lien continues notwithstanding the first sale, and as no time was fixed when the lien should cease, the court, regarding the assessment and its confirmation as judicial acts, considered that the limitation proper to be applied in such a case would be the same that was applied to judgment liens. 1 St. Louis v. Russell, 9 Mo. 503; St. Louis v. Allen, 13 Mo. 400. * Ch. 14, § 109, and cases cited. * Philadelphia v. Greble, 38 Penn. St. 339; Allegheny City's Appeal, 41 Penn. St. 60. Dallam v. Oliver, 3 Gill, 445; Eschbach v. Pitts, 6 Md. 71. McInerny v. Reed, 23 Iowa, 410; Norwich v. Hubbard, 22 Conn. 587; Himmelman v. Spanagel, 39 Cal. 889. The Mayor, &c. of New York v. Colgate, 12 N. Y. 140, 147. |