assessments, and reports of delinquents, shall be made not only of taxes for the current, but for "the preceding year or years." Where such is the language of the law, the right to collect back taxes is clear.1

The legislature have power to delegate to municipal corporations, and other local tribunals or bodies, authority to levy and collect taxes for specified purposes, and to determine the extent of territory which shall constitute a tax district.2 While this doctrine is unquestionable, a municipal corporation or other inferior organization possesses no power to levy taxes not expressly authorized by its act of incorporation. Where they are thus authorized, they must, in the exercise of the power, conform to the principles and requirements of the constitution.* And where, by charter, such corporation had power to assess and collect taxes according to law," the general law in force at the time of the assessment and collection of the particular tax, was held to be the one intended, and not the law in force at the time of the enactment of the charter; otherwise the corporation would be excluded from a participation in the *165 improvements of the system of taxation which might be made from time to time.5

*

66

Where a county or other local corporation levy a tax which is illegal, and the citizen pays the tax to one who has a formal authority to collect it, the payment is not voluntary, but compulsive, and an action will lie against the collector to recover it back, unless he has paid it over to his superiors, in which

1 Parham v. Decatur Co., 9 Ga. 352; Swan v. Knoxville, 11 Humph. 130; State v. Pemberton, Dud. 15; Paden v. Aikin, 7 Watts & Serg. 456; Curry v. Fowler, 3 A. K. Marsh. 504; Edward v. Beard, Breese, 41; Madison Co. v. Bartlett, 1 Scam. 70, 71; Hayden v. Foster, 13 Pick. 492. But no tax is due until assessed, and where land is sold for back taxes before a year from the assessment, the sale was void under the Pennsylvania statute, which only authorized sale where taxes had been due and unpaid one year. See Miller v. Hale, 26 Penn. St. 432.

2 Shaw v. Dennis, 5 Gilm. 405; Fitch v. Pinckard, 4 Scam. 69; Thomas v. Leland, 24 Wend. 65; Norwich v. Co. Commissioners, &c., 13 Pick. 60; Sawyer v. City of Alton, 3 Scam. 127; Vanderbilt v. Adams, 7 Cow. 349; Trustees of Paris v. Berry, 2 J. J. Marsh. 483; Hope v. Deadrick, 8 Humph. 1.

3 Asheville v. Means, 7 Ired. 406.

4 Hope v. Deadrick, 8 Humph. 1.

5 Ontario Bank v. Bunnell, 10 Wend. 186.

event the action must be brought against the corporation.1 But the fact that a tax is unconstitutional, or otherwise illegal, is no defence to a collector who refuses to pay over the tax after he has collected it.2

It is said, that a statute authorizing the levy and collection of taxes, if ambiguous or uncertain as to the amount of the levy, should be liberally construed by the courts, and the leaning should be in favor of the larger sum.3 On the other hand, the rule is laid down, that statutes imposing taxes or burdens upon the citizen, must be strictly construed, and the subjects of taxation, and the amount of the tax, must clearly appear. And in Dwarris, it is said to be a well settled rule of law, "that any charge upon the subject must be imposed by clear and unambiguous language. Where there is any ambiguity found, the construction must be in favor of the public, because it is a general rule, that where the public are to be charged with a burden, the intention of the legislature must be explicitly and distinctly shown." This would seem to be the safer ruler to adopt. Upon this point Chief Justice Ruffin remarks: "I do not think that a strained construction is allowable of an act which levies money from the citizen. The amount of the levy, the subject of it, and the method of raising it, *166 ought to be so plainly pointed out as to avoid all danger of oppression by an erroneous interpretation; and where there is a fair doubt, the citizen should have the benefit of it."5 It is also laid down as a rule in the construction of this class of laws, that they ought not to be so construed as to subject the property of any person or corporation to double taxation, unless it is clearly authorized by the words of the law."

1 Sumner v. Dorchester, 4 Pick. 361; Joyner v. Third School District of Egremont, 3 Cush. 567; Dakotah v. Parker, 7 Min. 273.

2 Waters v. State, 1 Gill, 302; Moore v. Alleghany City, 6 Har. (Penn.) 55. 3 Martin v. Tax Collector, 1 Speer's Law, 343; Bleight v. Auditor, 2 Mon. 27; Burger v. Carter, 1 McMull. 421.

4 Dwarris on Stats. 749; Butler, arguendo in Ontario Bank v. Bunnell, 10 Wend. 186; Sewall v. Jones, 9 Pick. 414; Savannah v. Hartridge, 8 Ga. 30.

5 State v. Bank of Newbern, 1 Dev. & Bat. Eq. 218.

6 Bank of Georgia v. Savannah, Dud. 132.

CHAPTER VII.

OF THE AUTHORITY TO COLLECT THE TAX.

THE authority to collect the tax, is a separate and distinct thing from the authority to sell the land, in case the owner proves delinquent, although the same officer usually exercises both powers. When the lands in a collection district have been duly listed and valued, and the tax due upon each tract has been assessed, a list of such lands is placed in the hands of the collector, whose duty it is to proceed, after a day named, to demand the tax of each resident owner, and in case of the neglect or refusal of such owner to pay, to seize the goods, or imprison the body of the delinquent, in satisfaction of the tax; and in the event that neither the body nor goods and chattels can be found, it is then made the duty of the collector, either to return a list of the delinquents to some other officer, or himself to proceed, in conformity with the law, to make sale of the lands embraced in his list, upon which the taxes remain due and unpaid. This authority is variously denominated the "list," "duplicate," "invoice," or "warrant to collect," according to the peculiar legislation or usage of each State. It has already been shown that the listing, valuation, and levy of the tax, which usually appear upon one document, called the list, is in the nature of a judgment. Upon the same principle, it may be said that a copy of the list, duplicate, invoice, or warrant to collect, is analogous to an execution, and constitutes the only authority of the officer to proceed and collect the tax, by a demand, or seizure of the body or goods, in case pay

1 See also Aldrich v. Aldrich, 8 Met. 102.

*

ment is not made of the tax charged. Without a legal document of this nature, delivered by the officer of the * 168 law designated for that purpose, the collector has no authority to proceed to enforce payment of the taxes. His demand, seizure of the body or goods, his return, and all of his other acts, will be nullities, and lay no foundation for the advertisement and the sale of the land, by the officer intrusted by law with those duties. It must not only be made and delivered by the proper officer, but it must be placed in the hands of the collector de jure or de facto, and not in those of a mere usurper. However, if an officer de facto seize the body or distrain the goods of the tax-payer, he will be liable as a trespasser; and every citizen against whom a tax has been assessed has such an interest in the tax list as will authorize him to become a relator, in an information in the nature of a quo warranto, to inquire by what authority the intruder exercises the powers, and performs the duties of the office of collector. Not only must the authority to collect, be made by, and delivered to the proper legal officer, but the copy, invoice, or abstract of the assessment roll, or the warrant to collect, must be duly authenticated, with a view to their identity as official documents.5

1 Pentland v. Stewart, 4 Dev. & Bat. Eq. 386; Van Rensselaer v. Witbeck, 7 N. Y. 517.

2 Hannel v. Smith, 15 Ohio, 134; Holt's Heirs v. Hemphill, 3 Ham. 232; State v. Woodside, 8 Ired. 104; Barnard v. Graves, 13 Met. 85; Homer v. Cilley, 14 N. H. 85; Chandler v. Spear, 22 Vt. 388; Dennis v. Shaw, 5 Gilm. 405; Allen v. Scott, 13 Ill. 80; Bassett v. Porter, 4 Cush. 487; Chase v. Sparhawk, 2 Foster, 134; Moore v. Alleghany City, 6 Har. (Penn.) 55; Abbott v. Yost, 2 Denio, 86; Downing v. Roberts, 21 Vt. 441; Sheldon v. Van Buskirk, 2 Comst. 473; Downer v. Woodbury, 19 Vt. 329; Brackett v. Whidden, 3 N. H. 19; Dillingham v. Snow, 5 Mass. 558; Wheeler v. Anthony, 10 Wend. 346; Hathaway v. Goodrich, 5 Vt. 65; King v. Whitcomb, 1 Met. 328; Upton v. Holden, 5 id. 360; Van Rensselaer v. Witbeck, 7 N. Y. 517; but see Parish v. Golden, 35 id. 465. If the assessors have proceeded legally, an informal certificate or affidavit ought not to be regarded as fatal to the jurisdiction of the supervisors to levy the tax, and the Court will not presume that the assessors have neglected any duty, from their mere omission to certify it in their affidavit indorsed on the assessment roll. If the affidavit contains substantially the matters required by statute, it is sufficient; and if the omitted part is material, it may be supplied and corrected. Parish v. Golden, ubi sup. 3 Vide Chapter 4. Burgess v. Pue, 2 Gill, 11; Hartley v. State, 3 Kelly, 233. * Commonwealth v. Browne, 1 Serg. & Rawle, 382; Blake v. Sturtevant, 12 N. H. 567; Schlencker v. Risley, 3 Scam. 483.

5 Vide Chapter 18. Chase v. Sparhawk, 2 Foster, 134.

The statute of North Carolina required the clerk of the county court to record the annual return of delinquents, and to deliver to the sheriff a fair and accurate copy of the returns, in alphabetical order, designating, in such copy, the *169 separate amount of taxes accruing from each species

of property, and extending the aggregate due from each individual. In Doe ex. dem. Kelly v. Craig, the plaintiff claimed title to the premises in question, under a tax sale held in September, 1838, on unlisted land for the taxes of 1836. To prove the liability of the land for the double tax, because it was not listed by the owner, the sheriff produced a book, which he swore had been delivered him by the clerk, as the copy of the tax list returned to the court, on which he was to collect the tax for that year. To that book the defendant objected, because it was not authenticated as a copy of the tax list, by a certificate of the clerk, or otherwise. The evidence was admitted, and upon inspection it appeared, that the land in controversy was not contained in the copy furnished by the clerk to the sheriff, but it had been entered in another part of the book by the sheriff himself, as property not listed by the owner, and liable to double tax. The plaintiff, then, to prove the amount of the double tax, offered the sheriff to prove that in 1837 he saw, either in the clerk's office, the original tax list, or in the hands of his own predecessor, a paper purporting to be a copy of that tax list, made out by the clerk, in which the lot in question was listed by the owner, but whether it was the original or copy he was uncertain. The clerk's office was burnt in 1840, and the original tax list had not been seen since that event took place. Upon this evidence the court instructed the jury, that they must be satisfied that the document testified to was the list of taxable property for 1836, or they would disregard it; but if they were so satisfied, it was immaterial whether the list was the original, or the record thereof by the clerk, or an official copy, as either was sufficient. A verdict was found for the plaintiff, and a judgment rendered thereon, from which the defendant appealed. The judgment was reversed. In delivering the opinion, Chief Justice Ruffin said,

15 Ired. 129.