Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

. (page 48 of 73)
Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 48 of 73)
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plaintiffs has, of course, some remedy at law or else equity
could not interpose on the ground mentioned. But at law
he must wait and suffer the wrong before he can begin his
action for redress, and when his legal remedy is exhausted it
is not much else than nominal when viewed in the contrast
with the full relief in equity which decides in advance of
actual litigation once for all, the validity or invalidity of the
tax.

The court in Rhode Island, although they in Greene v.
Mumford, 5 R. I. 472, and in Sherman v. Leonard 10 Id. 469,
referred the complainants therein to their remedies at law
(the validity of the assessment in each case on the com-
plainants only being involved), nevertheless declared the
court would enjoin the collection of a tax where the question
involves the validity of the whole tax. Sherman v. Benford^
10 R. I. 559.

So the United States Supreme Court, although they had
denied jurisdiction in suits brought by a single plaintiff in
the case already cited, they also disavow in the State Rail-
road Tax cases, supra, any purpose of fixing any absolute
limitation in restraining the collection of illegal taxes ; and
in Cummings v. Nat'l Bank, loi U. S. 157, say: "We are
of opinion that when a rule or system of valuation is adopted
by those whose duty it is to make the assessment, which is
designed to operate unequally and* violate a fundamental
principle of the Constitution, and when this rule is applied
not solely to one individual but to a large class, that equity
may interpose to restrain the operation of this unconstitu-
tional exercise of power."

That our opinion is sustained by the weight of judicial
authority to^ay, see Dill. Mun. Corp. §§731, 736 ; Bur. Tax.^
§143 and cases; Pom. Eq., §§258-260, 1343, and cases in
notes.

Was the tax assessed by authority of law ? If any part is
illegal the whole is ; therefore the provisions of Rev. Stat.^
chap. II, § 78, and chap. 6, § 142, do not apply.

Under the general statutory provisions, it is common
knowledge that political subdivisions, such as ^"^'ISSoi.
towns, created for the more efficient administra- vSiS^ "^ **^"*
tion of the affairs of the State, have only such power of



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460 CARLTON V. NEWMAN.

taxation as is delegated to them by the State. In the pro-
visions of Rev. Stat, chap. 11, defining the duties and obliga-
tions of towns and school districts in relation to education,
we find no authority for assessing a tax on a school district
for the purpose of building a school-house, unless: (i) The
district, at a legal meeting thereof called for the purpose,
vote to raise the money therefor— chap. 1 1, § 48 — or to borrow
it — §§ 81, 83 — or (2), the town, on application of five voters
of the district, under a proper article, deeming the sum
voted by the district insufficient, vote a larger sum — § 51 ;
Powers V, Sanford, 39 Me. 183 — or (3), the town, on the
written opinion of the school committee that the district un-
reasonably neglects or refuses to raise money for a school-
house such as the wants of the district require, shall vote a
sum. § 52. No action was ever taken under sections 51 or
52, but the district, under section 48, voted to raise by
assessment $500. There is no general statutory warrant for
the tax, unless it is found in section 56.

The authority of the municipal officers to build a school-
house for a school district is derived solely from section 56.
When they had " decided where the school-house should be
placed," and seasonably certified " their determination to
the clerk of the district," their authority ceased pro hoc.
Then it became the duty of the district to " proceed to erect
the house as if determined by a sufficient majority of " its
voters. But when the district had neglected " for sixty days
to carry such determination into effect," then it became the
duty of the municipal officers, " at expense of the district, if
need be, to purchase a lot for said house and cause it to be
erected." § 56.

What house were the municipal officers directed by the
statute to " cause to be erected " ? — " said house" for which
they might " purchase a lot ," " the house" which the statute
directed the district to " proceed to erect" on the location
fixed by the municipal officers ; the house which it might
build under its vote, viz., a $500 house. The building com-
mittee of the district could not bind the district by expend-
ing more money than the district voted. Wilson v. School
District, 32 N. H. 118, recognized in Jenkins v. Union School
District, 39 Me. 220. The legislature could not have in-
tended to confer on the municipal officers unlimited power



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CARLTON V. NEWMAN. 461

as to the " expense" to which they might subject the district^
for the decision of that question is rightfully vested in the
discretion of the tax-payers, except in the two instances
coming under sections 51 and 52, when all the voters of the
town take part in the decision. It is very evident, therefore,
that the municipal officers transcended their authority and
could not bind the district by thus virtually undertaking to
hire money on the district's credit ; nor could the payment
by the treasurer of the orders drawn ,by them for the ex-
penditure, in excess of the sum voted by the district, create
any liability or debt of the district to the town. The relation
of creditor and debtor the law does not allow to he created
in that manner. Brunswick v. Litchfield, 2 Me. 32 ; Hamp-
shire V. Franklin, 16 Mass. 84. We find no authority for the
tax in the general statutes.

Did the special act of 1883, chap. 348, afford a legal founda-
tion for it? We think not. Assuming that the legislature
might constitutionally confer authority for assessing on the
district the excess mentioned, did the act answer the object ?
Giving to it that strict construction which well-estabhshed
rules of law require to be put upon statutes affecting the
property of the citizen, and by which it may be ^.^^^ ^^^^
taken from him, as by taxation — Merritt v. Vil- »« taxed.
lage of Port Chester, 71 N. Y. 309; s. c, 27 Am. Rep. 47, and
cases therein cited; Burr. Tax, § 128; i Dest. Tax. 257— the
assessment was without legal authority, it having been made,
not by the " municipal officers," as provided in the act, but
by the ^* assessors," an entirely different and distinct board
of officers. Rev. Stat., chap. 3, § 12. Moreover the act
authorized the tax to be assessed for the purpose of reim-
bursing the town " for making repairs on the school-house,"
and not for building a school-house, as the fact was. No money
was paid by the town for " making repairs" on the district's
school-house. Districts may raise money for both purposes
— § 48 — and the school agent may appropriate a certain per
cent of the school money to repairs, but not to building.
§ 93. They are considered by statute distinct matters.
Courts can give effect to legislative enactments only to the
extent to which they may be made operative by leg^l con-
struction of the language in which they are expressed, and
. cannot make defective enactments carry out fully the pur-



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462 SNOW V. WEEKS.

poses which may have occasioned them. Swift v. Luce,
27 Me. 285.

Moreover, the last clause in the act satisfies us that the
legislature must have supposed that the object of the act
was the very common one of validating a former assessment
which was defective for some irregularity therein ; for, as
said by Mellen, C. J., " we cannot, without disrespect to the
legislature, presume they intended, ipso facto^ to create a
debt from one man or corporation to another." Brunswick
V. Litchfield, supra. And in that of Parker, C. J. : " It cer-
tainly must be admitted that, bv the principles of every free
government, and of our Constitution in particular, it is not
in the power of the legislature to create a debt from one
person to another, or from one corporation to another, with-
out the consent, express or implied, of the party to be
charged." Hampshire v. Franklin, supra.

Bill sustained. Collection of the tax perpetually enjoined.

Walton, Danforth, Libbey, Foster, and Haskell, JJ.,
concurred.



Snow

V.

Weeks.

{Advance Case, Maine. August 6, 1885.)

Without a distinct vote determining when taxes are pa3rable, interest
on them cannot be collected, even though it be voted by the common
council that " on all taxes unpaid after the last day of December, interest
must be coUecved."

But if the assessor's warrant contain such a recital of facts as authorizes
a collection of interest, then an arrest thereunder would be justified,
although such recitals were not true.

A. P. Gould ior plaintiff.

D. N, Mortland for defendant.

Walton, J. — The plaintiff having been arrested on a war-
rant issued by the defendant as treasurer and collector of
taxes of the city of Rockland, claims that the arrest was illegal.



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SNOW V. WEEKS. 463

and brings this actiDn to recover the damages which he says
he thereby sustained.

The city council of Rockland had voted that the collector
be instructed to allow a discount of eight per cent on all taxes
paid during the month of August, and four per cent on all
taxes paid during the month of September, and whwikterbst

«« •»!• ,1 <i f^ PAYABLE ON

that "on all taxes unpaid after the last day of »^^™-
December, interest must be collected." But there was no
distinct vote by the city council determining when the taxes
should be payable ; and the question is whether, without such
a vote, the payment of interest could lawfully be enforced.
We think it could not. The statutes authorizing the collec-
tion of interest are explicit, and make it a condition precedent,
that the town or city shall first fix the time when the taxes
are payable.

The Revised Statutes of 1871, chap. 6, §93, declare that
** towns at their annual meetings may determine when their
taxes shall be payable, and that interest shall be collected
after that time," and the act of 1876, chap. 92, extending this
power in terms to cities as well as towns, and limiting the
amount of interest, declares that " whenever a city or town
has fixed a time within which taxes assessed therein shall be
paid, such city, by its city council, and such town, at the
meeting when money is appropriated or raised, may vote that
on all taxes remaining unpaid after a certain time, interest
shall be paid at a specified rate, not exceeding one per centum
per month; and the interest accruing under such vote or
votes shall be added to and be a part of such taxes."

We think it is clear that under a fair interpretation of these
statutes, a compulsatory collection of interest cannot be justi-
fied, without a definite and distinct vote, fixing the time when
the taxes are payable. A vote declaring that interest shall
be collected after a time named is not sufficient. Interest may
and generally does commence to run before the principal is
payable ; and a vote declaring when interest shall commence
is by no means equivalent to a vote, fixing a time when the
principal shall be payable.

Such being the law, we are forced to the conclusion that
the warrant issued by the defendant for the arrest of the
plaintiff was illegal. It directed the sheriff or his deputy to
collect interest as well as the principal remaining due upon



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464 SNOW V, WEEKS.

the plaintifiF's taxes. We think an arrest upon such a warrant
would be an actionable wrong. No justification is found in
the defendant's warrant from the assessors, for that did not
direct him to collect interest. It directed him to collect the
taxes actually assessed, but it did not direct him to collect the
interest. It made no mention of interest. And no justifica-
tion is found in the vote of the city council, for that is defec-
tive and insuflBcient upon its face. If the warrant from the
RBCITAL8 w assessors had contained such a recital of facts as
FYiNOABBMT. would justify z, coUcction of interest, and also a
direction to the defendant to collect interest, then, being an
instrument legal upon its face, and coming from competent
authority, the defendant could justify under it, although the
recitals were not in fact true. But the warrant from the
assessors to the defendant contained no such recitals, and the
principle invoked in his defence, and the authorities cited in
support of it, do not apply.

When this case was before the law court, on a former occa^
sion, the court held that inasmuch as the warrant which the
defendant issued to the sheriff contained an averment of the
vote by the city of Rockland, fixing a time when its taxes
should be payable; this averment should be deemed to be
true unless the contrary should be proved — in other words,
that such a recital by a sworn officer is prima-facie evidence of
the fact. But the contrary is now proved. An inspection of
the city records and the testimony of the clerk show that no
such vote was passed. Consequently, the averment must be
disregarded and the truth allowed to prevail.

The result is, that the defendant must be defaulted and the
damages assessed by a jury, as agreed in the report.

Defendant to be defaulted. Damages to be assessed by a
jury.

Peters, C. J., Danforth, Virgin, Libbey, Foster, and
Haskell, JJ., concurred.



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KLOKKE V. STANLEY. 465



Klokke

V.

Stanley.

(109 Illinois, 192.)

A county clerk who has once executed a tax deed at the instance of
the holder of the certificate of purchase, upon evidence furnished by such
holder, cannot subsequently be compelled, by mandamus, to execute to
the same party another tax deed under the same certificate of purchase, the
holder thereof having filed with the clerk additional and more perfect
evidence of his having complied with the law in respect to giving notice
of his purchase, etc.

If, however, the county clerk himself makes a mistake in executing a
tax deed, whereby it is rendered inoperative for the purpose for which it
was intended, he may be compelled, by mandamus, to correct his mistake,
and he may make the correction without being coerced thereto by the
court.

A party applying for a mandamus must show a clear legal right to have
the thing sought by it to be done ; and if the granting of the writ will be
of no avail to the party applying for it, it will be refused.

It is contrary to the policy of the law that mandamus should issue,
where its sole purpose and effect is to relieve the party seeking it from
the consequences of his own mistakes or omissions.

Appeal from the Appellate Court for the First District ; —
heard in that court on appeal from the Superior Court of
Cook County ; the Hon. Joseph E. Gary, Judge, presiding.

A petition for mandamus was filed in the Superior Court
of Cook County, on the 22d of September, a.d. 1882, in the
words following, omitting the caption :

** The petition of Philiskey E. Stanley, of Cook County,
State of Illinois, complains that on the loth day of October,
A.D. 1879, at a tax sale then being held in said Cook County,
by Samuel H. McCrea, county treasurer and ex-officio collec-
tor of revenue of said county, the petitioner bid off and be-
came the purchaser at said sale of lot four (4), in block
thirty-five (35), in school-section addition to Chicago, situate
in said Cook County ; that thereupon petitioner paid to said
collector the sum of $377.33, and afterwards, on said loth
day of October, 1879, ^^ county clerk of said county made
out and delivered to petitioner, duly executed and counter-
signed, a tax-sale certificate of purchase of said lot, said cer-
9 Cor. Cai.— 30



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466 KLOKKE V. STANLEY.

tificate being numbered No. 15,663; that said petitioner, as
owner of said certificate, duly caused to be served a partly
written and partly printed notice of such purchase, on every
person in actual possession or occupancy of said premises,
and upon all the owners or parties interested in said prem-
ises, three months before the expiration of the time of
redemption of said sale, in which notice petitioner stated
when he purchased said lot, in whose name the same was
taxed, the description of the premises so purchased, for what
years the same was taxed, and when the time of redemption
would expire ; that petitioner caused diligent inquiry to be
made for the person in whose name said lot was taxed ; that
upon such inquiry said person could not be found in said
county, and thereupon petitioner caused said notice to be
pubUshed in a newspaper printed in said county, said notice
being inserted three times in said newspaper, — ^the first time
not more than five months, and the last time not less than
three months, before the time of redemption from said sale
would expire ; that said premises were not redeemed by any
one from said sale during the time limited by law for such
redemption; that on the nth day of November, 1 881, peti-
tioner made affidavit (still being owner and holder of said
certificate of sale, supposed by him at that time to be in com-
pliance with the conditions of section 216 of the Revenue
act, chapter 120, of the Revised Statutes of the State of Illi-
nois), stating particularly the facts relied upon as complying
with said act, and thereupon delivering said affidavit and
certificate of sale, and the receipt for the payment of all taxes
upon said premises for the two years following said tax sale,
to the county clerk of said county ; that petitioner at that
time requested said county clerk to execute and deliver to
petitioner a tax deed of said premises ; that thereupon said
county clerk duly filed said affidavit, certificate of sale, and
the papers accompanying the same, in the office of the county
clerk of said county, and afterwards, to wit, on November
25, 1 88 1, executed and delivered to petitioner a tax deed of
said premises, said tax deed being tax deed No. K 1952 ; that
the papers upon which petitioner obtained said tax deed
were, the affidavit of petitioner, the said tax-sale certificate,
the said tax receipts, the affidavits of William E. Winholtz,
George M. French and James Mois, the tax-purchaser's



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KLOKKE V. STANLEY. 467

notices, the published tax-sale notice, and the certificate of
publication of said notice, certified copies of which are here-
to annexed and made a part of this petition; that Mary
Conners was in possession of said premises at the time when
notices were served as aforesaid, but they do not show that
said notice was at any time served upon said Mary Conners ;
that said notice was duly served upon said Mary Conners,
by delivering a copy thereof to her, on the 15th day of
March, 1881 ; that the same was served .upon her. by said
George M. French, agent of petitioner, for that purpose, but
at the time of making said affidavit of service of said notice
by said French, the allegation that he had so served said
notice upon said Mary Conners was left out of said affidavit
by mistake, and that neither petitioner, nor said French, nor
said clerk, nor any one else, discovered said mistake until
long after the execution and delivery of said tax deed ; that
petitioner believes it to be the law that said tax deed, so far
as it relates to the premises aforesaid, * was prematurely
issued, unauthorized, and void, for the reason that said
papers, so filed as aforesaid, show that said Mary Conners
was in possession of said premises at the time of service of
said notices, but show no service of said notice upon said
Mary Conners, and that said papers so filed are not in com-
pliance with section 216 of said act, and are not prima- facie
evidence that your petitioner had complied with the condi-
tions of said section 216 at the time when said tax deed was
issued ; * that petitioner has made no conveyance of said
premises at any time after discovery of said mistake in the
affidavit of said French ; that petitioner made a new affidavit,
accompanied with a copy of said notice and a second affida-
vit of said French, stating that he served said notice on said
Mary Conners on the 15th day of March, 188 1 ; that petitioner
presented said last-mentioned papers to said county clerk,
Ernst F. C. Klokke, and requested him to file the same, and
to deliver to petitioner a new deed for said premises, offer-
ing to pay any additional fee to said clerk which it might be
necessary to pay, but said clerk refused, and still refuses, to
deliver to petitioner such new deed ; that the time limited
for taking out a valid deed upon said premises will expire on
the loth day of October next ; that petitioner believes it is
the duty of said clerk to deliver to him a new deed of said



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468 KLOKKE V. STANLEY.

premises in time for filing the same for record, before the
loth day of October, 1882 ; wherefore petitioner prays this
court to grant a writ of mandamus to compel said Ernst F. C.
Klokke to receive and file in his office said papers last pre-
sented to him, and to execute and deliver to petitioner a new
deed of said premises, and to do such acts and things as the
law requires, for petitioner's relief."

Copies of the affidavits, notices of purchase, etc., are re-
ferred to in the petition as exhibits.

The defendant demurred to the petition, and for cause of
demurrer assigned, " that as the county clerk of said county
has regularly issued a tax deed in compliance with section
216 of the Revenue law, and that such deed having been in
all respects issued regularly and according to law, as appears
from said petition, the respondent, as such county clerk, has
no power or authority in law to issue a second deed." The
demurrer concludes : " Wherefore, and for other good causes
of demurrer appearing in said petition, defendant prays judg-
ment whether he shall be compelled to make further answer.'*
The court overruled the demurrer, and the defendant making
no further answer, the court adjudged that the petition be
taken for confessed, and that a peremptory mandamus issue,
etc. An appeal was prosecuted from that judgment to the
Appellate Court That court affirmed the judgment of the
Superior Court, and the case comes here by appeal from the
last-named judgment, on certificate as to the importance of
the question involved, by two of the judges of that court

E. R. Bliss and H, W. Magee for the appellant

Abbott^ Oliver & Showalter, for the appellee.

SCHOLFIELD, J. — The question presented by this record is,
whether a county clerk who has once executed a MAin>ijnrsDo»
tax deed at the instance of the holder of the cer- s^iS5J^I5

■us nOOVD TAX



tificate of purchase at a tax sale, upon evidence '*"^'
then furnished by such holder, can be subsequently com-
pelled, by mandamus^ to execute to the same party another
tax deed under the same certificate of purchase, the holder
thereof having filed with the clerk additional and more per-
fect evidence of his having complied with the law in respect
to giving notice, etc., since the execution of the first deed.
Our answer must be in the negative. It is true, where a



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KLOKKE V. STANLEY. 469

clerk has himself made a mistake in executing a tax deed,
whereby it is rendered inoperative for the purpose for which
it was intended, he may subsequently be compelled, by man-
damuSy to correct his mistake, and, of course, may make the
correction without being coerced thereto by judgment of
court. Maxcy v. Clabaugh, i Gilm. 26. And to the same
effect is McCready v. Sexton, 29 Iowa, 356. But here the
clerk has made no mistake. The mistake made is that of the
party applying for the deed, and relates to proof which it
was his duty to furnish to the clerk, and which he assumed
to furnish to the clerk, before applying for his deed. If he
may have mandamus to compel the clerk to make a new deed
upon his alleged correction of one mistake, may he not also
have it to compel the clerk to make a new deed upon his
alleged correction of another mistake ? Where is it to end ?
The owner of the land to be affected is not before us, and
has no opportunity to be heard upon this question. If this
mandamus will lie, will it not afford a precedent whereby
purchasers at tax sales may, by adroit manipulation, obtain
the opinion of the court upon the validity of a given title
before the landowner has any opportunity to be heard?
The rule is, a party applying for a mandamus must show a
clear, legal right to have the thing sought by it to be done,



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 48 of 73)