bank. It is submitted that the very essence of a tax is its assessment, ascertaining the persons liable for the tax and the amount of the tax. This is certainly true as to all taxes that are placed on the roll.1 There are many species of taxes that are not placed on the roll, as in the cases of the license tax, probate tax, and the taxes on deeds and suits, but there is as truly an assessment in such cases as in the cases of those on the roll, only it is made by a different person, the person who issues the license. And so where banks or other institutions are required to report to some State officer, as the auditor of State, the condition of their business, and pay a tax in proportion to the amount of business, or capital, or other measure of the amount of the tax which may be used. It is this officer who assesses or determines upon the coming in of such reports, the amount of the tax. It is the function of the legislature to determine as to the amount of the tax to be levied, and to distribute the burden of taxation upon such persons and subjects, and at such rates as it deems politic, in accordance with the Constitution of the State. When the rate is fixed according to value of property, capital or earnings, then it becomes the duty of an officer to ascertain the persons and subjects liable to taxation, and the value of the property, capital or earnings. To ascertain this he must investigate, weigh evidence and decide questions of law and fact. His decision is made known, it is open to the inspection of the tax-payer, and subject to correction by the courts. This is the theory of assessment which we have endeavored to elucidate in the foregoing pages; it is sustained by the amplest authority. It seems almost self-evident that a legislative body cannot in advance determine such questions. It is true such a body might upon a report previously made, impose a tax upon each corporation, based on the report, and it is not doubted, that in such case the legislature might make the assessment. But when the tax law merely fixes the rate of tax, the subject of the tax, and its measure, as value, capital, or earnings, then the doctrine that no other assessment than the tax law is necessary, is one not sustained by either reason or authority, and in the language of the dissenting judges, "introduces a new principle in the system of taxation, dangerous to the rights of the citizen, and the peace and security of society."2

Tax List.-The usual mode of collecting the tax is that the roll or tax list is placed in the hands of an officer, styled the collector, whose

1 Blackwell on Tax Titles, pp. 107, 108, and authorities in note 1.

? Bradley, J., and Field, J., concurring, in Savings Bank v. The United States, 19 Wall. 241.

duty it is to collect the taxes and account for them to the proper officers designated by statute. In some States the officer merely receipts for the tax list, in other States the supervisors attach a warrant to the tax list directing the officer to collect the taxes, and indicating the mode of collection. When in the hands of the collector it is not merely an account to be collected, but it has the force of an execution, which the collector may satisfy by levy or distress of the goods and chattels of the tax-payers.1 The form of the warrant in New York commands the collector to whom it is directed to collect from the several persons in the tax list the several sums mentioned in the two last columns of each page thereof, set opposite their respective names, directs payment of the moneys collected to certain officers of the town or county, and authorizes him, in case any person named in the roll shall refuse or neglect to pay said tax, to levy the same by distress and sale of the goods and chattels of said person or persons, and requiring the payments specified to be made on or before a certain day. This is the general tenor of the warrant, but whether there be a warrant, or the list is merely delivered to the collector, when in his hands in the mode pointed out by the statutes of the State, it has all the force of an execution issued from a court, upon a judgment regularly obtained. Is a demand of the tax necessary before a levy? If it be true that the roll when complete has the force of a judgment, and is conclusive until reversed; that when the list comes into the hands of the collector it has the force of an execution, why should there be a demand before levy? No reason can be assigned, and none can be given, unless it be the express provision of the statute, or some peculiar circumstance connected with the particular case. In Mississippi, where the collector had been enjoined from collecting the tax in a suit to which the tax-payer was not a party, and the injunction was dissolved, it was said that before the collector proceeded to sell the land, he should make a demand of the tax, as the tax-payer may have been ready to pay at the time when the collector was prevented by the injunction from receiving it. When this state of things was changed, the taxpayer, in justice, should be made aware of it.? So in New York, where the form of the warrant of the supervisors only authorizes a levy after refusal to pay. Where the statute requires the collector to give notice that the tax is due and payable, and indicate the times and places at which he will attend for its collection, and if the tax be not

3

1 Kelly v. Craig, 5 Ired. (Law), 129; Van Rensselaer v. Whitbeck, 7 N. Y. 523; Sheldon v. Van Buskirk, 2 N. Y. 473; Gore v. Martin, 66 N. C. 371; State v. Leitz, 65 N. C. 503. ? Jones v. Burford, 26 Miss. (4 Cush.) 194. Thompson v. Gardner, 10 Johns. 404.

3

then paid, to attend at the dwellings of the parties and there demand the taxes, and if not paid within twenty days, to make the same by distress and sale, the demand is absolutely essential by the very terms of the statute. But when the statute requires the collector to appoint. a time and place for receiving taxes, and to distrain in case of failure to pay, if it appear, from long usage, that the mode of giving notice of such appointments has been by a notice on the sign-post of the town, a demand by such notice is sufficient. The cases cited favoring the necessity of a demand, are cases of the sale of land for taxes, where the rules as to the performance of all conditions preceding the sale are enforced with great strictness. But even in this class of cases it is held that the return of the delinquent list by the collector in the form prescribed is evidence of a demand.3 So where land of non-residents is assessed by the description of the land, without reference to the name of the owner, although the form of the warrant indicates the necessity of a demand, no demand is necessary, as the person is not supposed to be known. And where, under the statute, a demand is necessary, it may be shown by evidence aliunde, and need not appear in the tax proceedings.5

What Property may be Taken by the Collector. The language of the warrant usually authorizes the collector to levy on the goods and chattels of the tax-payer, and when there is no warrant required to be attached, the tax list in the hands of the officer having the force of an execution, he is authorized to seize the goods and chattels of the tax-payer. The personal estate of the tax-payer is the primary fund for the payment of taxes. This is the general rule, but it may be, and often is, changed either by express provision of statute or by implication, as in those cases where the tax is imposed on the property as such without reference to the ownership, and the proceeding to enforce its payment is a proceeding in rem. Such is the case in Massachusetts and New York, as to lands owned by non-residents, which have a distinct legal character, and are proceeded against in a mode different from that employed in case of lands owned by residents and assessed to the owners. So of unimproved lots in Washington city, although authority is given to collect the tax on the same by levying

1 Parker . Rule's Lessee, 9 Cranch, 65.

2 Ives v. Lynn, 7 Conn. 505.

2 Taylor v. People, 2 Gilman, 349; Job v. Tebbits, 5 Gilman, 382.

N. Y. & Harlem R. R. Co. v. Lyon, 16 Barb. 651.

Gossett v. Kent, 19 Ark. 602.

• Stead's Ex'rs v. Course, 4 Cranch, 403; Parker v. Rule's Lessee, 9 Cranch, 64; Thatcher v. Powell, 6 Wheat. 119; Scales v. Alvis, 12 Ala. 617.

on the goods and chattels of the owner, yet the proceedings authorized are against the land itself for the tax due thereon.1

If a tax-payer owes a tax for both real and personal property, and tenders the tax due on the real estate, the collector must receive it, although he refuses to pay the tax on his personal estate. Under such circumstances the officer cannot refuse to receive the amount tendered, and return the land as delinquent. The taxes on the personalty are not a lien on the real estate, unless made so by express statute.2 In like manner the collector cannot take the goods of a subsequent purchaser of real estate for taxes accruing prior to his purchase; he can only seize the goods of the person who was owner at the time of assessment. He is to collect the taxes from the persons named on the roll, and he cannot go beyond it.3

In some States the collector is authorized, if the tax-payer refuses or neglects to pay the tax, to seize the body of the delinquent and imprison him, or upon such neglect or refusal, an application may be made to a court having jurisdiction of the person of the party, and its payment enforced by attachment of the person, fine and imprisonment. So in Virginia, as to a license tax for the privilege of pursuing the business of a distiller; the assessor delivers to the collector a list of all licenses granted by him, which authorizes him immediately to distrain upon the goods of the distiller, if the tax is not paid, and should he not find sufficient property to satisfy the taxes assessed, he is authorized to arrest the distiller and hold him in custody until payment is made, or until he enters into bond with sufficient security conditioned to appear before the Circuit Court to answer for his failure to pay the tax. And if a collector, under such authority, levies on the property of the distiller, which is subsequently levied upon by an officer of the United States, for a tax due that government, and sold to pay that tax, the collector not being able to find any other property of the distiller may legally take the body of the distiller. A tax on professions may be enforced by a penalty recoverable by indictment, as for a misdemeanor.

Another mode of collection is practiced in some States in reference to the owners of bonds of the State, or of corporations in the State, which might be very well styled a collection by reservation. It is

230.

1 Thompson v. Lessee of Carroll et al. 22 How. 422; s. P. Martin v. Carron, 2 Dutch. Atlantic & Pacific R. R. Co. v. Cluno, 2 Dillon, 175.

State v. Powell, 44 Mo. 436.

Appleton v. Hopkins, 5 Gray, 530; Daggett v. Everett, 19 Maine, 373.

5 In re Nichols, 54 N. Y. 62, 66.

State v. Hayne, 4 S. Car. 403.

6 Commonwealth v. Byrae, 20 Gratt. 165.

made the duty of the officers of the State or corporation, when paying the interest due on the bonds of the State or corporation, to withhold a certain per cent. of the interest due on the bond as a tax on the owner of the bond. So banks are required to reserve a per centum of their dividends as a tax on their shareholders, and the amounts so withheld are directed to be paid by the officer receiving them into the the treasury of the State. Where the tax on corporations is payable directly to the treasurer of the State, it may be enforced by mandamus, and it is no defense that the officer of the corporation on whom it is served was not in office when the tax was assessed.

§ 106. Collector de jure, de facto, when a Trespasser ab initio.— This is the general name applied to the person authorized to collect taxes, and whether it really be a sheriff, constable or treasurer, the duties and liabilities are the same. The authority to exercise the office proceeds from his election or appointment. If he has this, although there may be some informality as to the mode of his qualification, he is still an officer de facto, and in collateral proceedings his authority cannot be questioned. Where a justice of the peace in England has not taken the oaths required by law, yet acts done under a warrant issued by him are valid. A contrary rule would produce great confusion in the administration of government. But where the title to the office is brought directly in issue, by a quo warranto, or in some suit by the officer where his right of action is based upon his title to the office, he must show a compliance with all the requirements of the law. There is a class of cases which hold that in proceedings to enforce the sale of lands delinquent for taxes, the failure of the collector or assessor to be sworn, or to give the bond required by statute, invalidates the subsequent proceedings and makes a sale of the land void. If the principle involved in these cases be correct, then the acts of an officer de facto are not valid, and may be attacked in a collateral proceeding. Yet one of these courts decides that in other matters than the sale of lands delinquent for taxes, the acts of an officer de facto cannot be inquired into collaterally. Thus in a suit against selectmen of a town, who acted as assessors, the party suing

1 State v. Mayhew, 2 Gill, 487.

3 Barney v. State, 42 Md. 48.

2 Sheldon v. Coates, 10 Ohio, 278.

4 The Margate Pier Co. v. Hannam, 5 Eng. Com. Law, 278; Blackwell on Tax Titles, p. 93; Wilcox v. Smith, 5 Wend. 234; Burke v. Elliot, 4 Ired. 355; Merchants' Bank v. Chester, 6 Humph. 458; Douglass v. Wickwire, 19 Conn. 489; Tucker v. Aiken, 7 N. H.

131.

5 Pike v. Hanson, 9 N. H. 491, suit against selectmen, title to office involved. Payson v. Hall, 30 Maine, 319; Isaacs v. Shattuck, 12 Vt. 668; Spear v. Ditty, 8

Vt. 419; Proprietors of Cardigan v. Page, 6 N. H. 182.