Under the act to incorporate the City of Washington passed on
the 15th of May, 1820, amended by the act of 1824, it is not a
condition to the validity of the sale of unimproved lands for taxes
that the personal estate of the owner should have been exhausted by
distress.
The ordinances of the corporation cannot increase or vary the
power given by the acts of Congress, nor impose any terms or
conditions which can affect the validity of a sale made within the
authority conferred by the statute.
The facts of the case and instruction given by the circuit court
are stated in the opinion of the Court.
Page 63 U. S. 431
MR. JUSTICE GRIER delivered the opinion of the Court.
The lessors of the plaintiffs below claim to recover a lot of
ground in the City of Washington the title to which was admitted to
have been in their ancestor in 1835. In that year it was sold for
taxes by the corporate authorities. The plaintiffs in error claim
through mesne conveyances of the tax title.
Page 63 U. S. 432
The lot in question was assessed as vacant and unimproved, but
the owner, Mr. Carroll, resided in Washington City. He owned a
large number of unimproved lots, the taxes on which amounted to
$5,690. He had personal property in and about his house, estimated
at between five and six thousand dollars.
On the trial but a single defect was alleged against the tax
title, which raised the question
"Whether, upon the true construction of the charter of 1820, as
amended by the act of 1824, it was a condition to the validity of
the sale of unimproved lands for taxes that the personal estate of
the owner should have been previously exhausted by distress."
The court instructed the jury:
"That if Carroll resided within the limits of the corporation of
Washington, and had in his possession personal property sufficient
to pay all taxes due by him, which might have been seized and
subjected to distress and sale, it was the duty of the corporation,
through their collector, to resort first to such personal property,
which not being done, the sale of the lot in question was illegal
and void."
The correctness of this instruction is the only question
presented by the record for our consideration.
The authority granted to the city and the mode of its exercise
is to be found in the 10th section of the act "to incorporate the
City of Washington," passed on the 15th of May, 1820. It
provides
"that real property, whether improved or unimproved, on which
two or more years' taxes shall have remained unpaid may be sold at
public sale, to satisfy the corporation therefor,"
with this proviso, that no sale "shall be made in pursuance of
this section of any improved property, whereon there is personal
property of sufficient value to pay the taxes," &c.
It is the obvious intent of this law that the thing or property
shall be held liable for the tax assessed upon it, and that the tax
is a lien
in rem, which may be sold to satisfy it. It
seems to assume also that the property should be assessed to some
person as owner, for it provided for a longer or shorter notice by
advertisement, according to the residence of the owner, whether in
or out of the district or of the United States. Where
Page 63 U. S. 433
the owner is out of the jurisdiction of the corporation, the
assessment can impose no personal liability on him. But where he
resides in the city, he may be considered as personally liable for
the taxes assessed against his property, and "charged to him," and
though not liable to an action of debt, the 12th section of the act
provides an additional remedy for the corporation. Besides that of
proceeding
in rem, under the provisions of the 10th
section, it enacts that
"the person or persons appointed to collect any tax imposed by
virtue of the powers granted by this act shall have authority to
collect the same by distress and sale of the goods and chattels of
the person chargeable therewith"
&c.
The Act of May 26, 1824, which modifies and changes some of the
provisions of this act, provides, among other things, "that no sale
for taxes shall be void by reason of such property not being
assessed or advertised in the name of the lawful owner."
Without inquiring whether this act repeals the 12th section of
the previous act by implication, it shows plainly that the property
assessed is considered as primarily liable for the tax, without
regard to ownership. But assuming that the owner, residing in
Washington, is still personally liable for taxes assessed on his
unimproved lots, there is nothing to be found in this law that, by
any fair construction, requires that the remedy against the person
must be exhausted before that against the property charged with the
tax can be resorted to. It is not necessary to the validity of the
assessment and sale of the property taxed, that the name of the
true owner be ascertained. The collector, therefore, cannot be
bound to search for him, or to distrain the personal property of
one who may or may not be the owner, even when named as such in his
assessment list.
The remedy given by the twelfth section to the corporation is
coordinate or cumulative, but is not imperative as a condition
precedent to the exercise of the authority to sell the property
assessed. It is a power conferred on the officer, to be used at his
discretion -- not a favor to the owner. If he is unable to pay the
taxes assessed on his property, it may not
Page 63 U. S. 434
be a very desirable measure for him to have his household
furniture distrained and sold on ten days' notice, when the remedy
against his land cannot be pursued till two years' taxes are due
and unpaid, and the owner has then two years more to redeem his
land after the sale. A construction of this act, which made it the
imperative duty of the collector to distrain the personal property,
might be ruinous to the proprietor, and deprive him of an important
privilege.
The City of Washington was laid out on an immense scale. But a
very small portion of the lots and squares were improved or
productive. Their value to the owners was in a great measure
prospective, while the present burden of taxes, to those who owned
large numbers of them, was oppressive. As we see in the present
case, if the collector had levied on the personal property of the
owner for the taxes charged on his vacant and unproductive lots, it
would have left him without furniture in his house, or servant to
wait on him. Hence, a four years' delay was to him a valuable
privilege. It demonstrates too the evident policy of the act of
Congress is not compelling a sale of the owner's personal property
before the lands charged could be sold. In Georgetown and
Alexandria, old-charged towns, where the lots were nearly all
improved, and yielding profit to the owners, the statute adopted a
different policy. By the proviso to the eighth section of the act
of 1824, which applies exclusively to those towns, the collector is
not permitted to sell real property where the owner charged with
the tax has sufficient personal estate, out of which to enforce the
collection of the debt due.
The case of
Mason v.
Fearson, 9 How. 248, has been urged in the argument
as an example of the construction of this statute, which should be
followed in this case, and where the word may is construed to mean
must. But that case has no analogy to the present. It is only where
it is necessary to give effect to the clear policy and intention of
the legislature, that such a liberty can be taken with the plain
words of a statute. But there is nothing in the letter, spirit, or
policy, of this act, which requires us to put a forced construction
on its language, or interpolate a provision not to be found
therein.
Page 63 U. S. 435
In this case, the owners of the tax title have had the
possession, paid the taxes, built and made valuable improvements on
the lot, in the presence of the former owners, for near twenty
years. That which was of comparatively small value at first, has
now become valuable. Under such circumstances, a court of justice
should be unwilling to exercise any judicial ingenuity to forfeit
even a tax title, where the former owners have been so slow to
question its validity.
The counsel for the appellees have endeavored to support this
instruction of the court, by a reference to certain ordinances of
the corporation, which, among other things, direct the collector to
levy first on the personal property of the person charged with the
tax, unless such person shall give consent in writing to the
contrary. This direction to the collector is a very proper one. It
leaves the election of this remedy to the person charged, and not
to the officer. But the power to sell the lands for taxes is to be
found in the acts of Congress, not in the ordinances of the
corporation. They can neither increase nor vary it, nor impose any
terms or conditions, such as evidence of the owner's election,
which can affect the validity of a sale made within the authority
conferred by the statute.
The purchaser of a tax title is not bound to inquire further
than to know that the sale has been made according to the
provisions of the statute which authorized it. The instructions or
directions given by the corporation to their officers may be right
and proper, and may justly be presumed to have been followed; but
the observance or nonobservance of them cannot have the effect of
conditions to affect the validity of the title.
The question argued by the counsel of appellees, again bringing
up the endless controversy as to the
terminus a quo, in
the computation of time, and which was noticed by this Court in the
case of
Griffith v.
Bogert, 18 How. 162, is not in the case as
presented by the record, and we cannot anticipate its decision.
Judgment reversed, and venire de novo.