the delinquent has sufficient goods to satisfy the tax, which the collector might have found if he had sought for them.1 c. COLLECTION BY ACTION-(1) The Right to Proceed by Action. -Taxes are not debts, and therefore, as a general rule, the common-law action of debt does not lie for their collection where another remedy is given.3 The right to proceed by action is, however, frequently conferred by statute.4 directs," is insufficient to authorize an arrest. Flint v. Whitney, 28 Vt. 680. 1. Lothrop v. Ide, 13 Gray (Mass.) 93; Wilcox v. Gladwin, 50 Conn. 77; McMahon v. Redfield, 12 Daly (N. Y.) 1; Henry v. Tilson, 19 Vt. 447. And see Com. v. Byrne, 20 Gratt. (Va.) 165. A return of "no goods found" is not conclusive. McMahon v. Redfield, 12 Daly (N. Y.) 1. To make the tax collector liable for making an arrest, proof of a general request to take property is not sufficient, although the taxpayer has it; there should be a distinct and immediate offer of specific property; the collector is not obliged to delay. Flint v. Whitney, 28 Vt. 680. In New Hampshire, a collector of taxes is not bound to search for property, but may arrest the body of the delinquent, and is not obliged to discharge him upon his afterwards exposing sufficient property. Osgood v. Welch, 19 N. H. 105. See also Kinsley v. Hull, 9 N. H. 190. Remedy Exclusive. Though a collector of taxes in New Hampshire may distrain property, and, for want thereof, take the body, yet, having taken the body, he cannot thereafter distrain property. Butler v. Washburn, 25 N. H. 251. 2. See supra, this title, Nature. 3. Nebraska City v. Nebraska City Gas Light Co., 9 Neb. 339; Cooper v. Savannah, 4 Ga. 68; Camden v. Allen, 26 N. J. L. 398; Detroit v. Jepp, 52 Mich. 458; Richards v. Stogsdell, 21 Ind. 74; Turnpike Com'rs v. Louisville, etc., R. Co. (Ky. 1886), 1 S. W. Rep. 671; Stafford County v. First Nat. Bank, 48 Kan. 561; Packard v. Tisdale, 50 Me. 374; Pierce v. Boston, 3 Met. (Mass.) 520; Crapo v. Stetson, 8 Met. (Mass.) 394; Carondelet v. Picot, 38 Mo. 125; State v. Heman, 7 Mo. App. 428; Alexander v. Helber, 35 Mo. 334; Faribault v. Misener, 20 Minn. 346; Greene County v. Murphy, 107 N. Car. 36; Shaw v. Pickett, 26 Vt. 486; Hibbard v. Clark, 56 N. H. 158; 22 Am. Rep. 442; Durant v. Al bany County, 26 Wend. (N. Y.) 66; Board of Education v. Old Dominion, etc., Co., 18 W. Va. 441; Lane County v. Oregon, 7 Wall. (U. S.) 71; Meriwether v. Garrett, 102 U. S. 472. And see Board of Supervisors v. Johnson (Miss. 1890), 7 So. Rep. 390; Baldwin v. Hewett, 88 Ky. 673. Where a right of action is conferred in one court, the tax cannot be collected by action in any other court. Smith v. Clark (Va. 1889), 10 S. E. Rep. 4. And see State v. McAllister, 60 Ala. 105. In Andover, etc., Turnpike Co. v. Gould, 6 Mass. 40; 4 Am. Dec. So, it was held that where members of a turnpike corporation expressly agree to pay assessments made by it, an action lies for their recovery, but in the absence of such agreement, the sole remedy is a sale of the shares of the delinquent members. The constitutional provision of Lou• isiana that taxes shall be collected without suit, prohibits a reconventional demand made for taxes, praying for a personal judgment against the taxpayer for the amount of taxes due. Rivers v. New Orleans, 42 La. Ann. 1196. 4. See Mercier v. New Orleans, 42. La. Ann. 1135; Littler v. McCord, 38 Ill. App. 147; Mix v. People, 116 III. 265; Byrne v. La Salle, 123 Ill. 581; Biggins v. People, 96 Ill. 381; Shaum v. Showers, 49 Ind. 285; Jefferson v. Whipple, 71 Mo. 519; Jefferson v. Curry, 77 Mo. 230; Lord v. Parker, 83 Me. 530; McLean v. Myers, 134 N. Y. 480; Rich v. Tuckerman, 121 Mass. 222; Tripp v. Torrey, 17 R. I. 359; Wheeler v. Wilson, 57 Vt. 157; Dollar Sav. Bank v. U. S., 19 Wall. (U. S.) 237 Such provisions are constitutional. Pritchard v. Madren, 24 Kan. 486. Where the collector of taxes of a municipality is authorized to collect the tax by a civil suit, he cannot enforce the payment of the tax by a levy upon the property, before he obtains judg ment thereon. Alexander v. Helber, 35 Mo. 334. In Tennessee, the tax warrant may be The sale of land for taxes is prohibited by the constitutions of some of the states, unless founded upon the judgment of a duly authorized court of record.1 When no remedy is especially provided by statute, a remedy by action may be implied. When a lien is given, the right to enforce it is inherent in chancery.3 It has been laid down in some of the cases that the collector's implied right to an action to enforce the payment of taxes arises from the obligation to pay, for state, county, and municipal taxes, jointly or separately, and an action may be brought for their recovery either jointly or separately, justices of the peace having jurisdiction in all such cases, no matter what may be the amount. Wilson v. Benton, 11 Lea (Tenn.) 51. And see State v. Covington, Lea (Tenn.) 54; Jonesboro' v. McKee, 2 Yerg. (Tenn.) 167. Jurisdiction may be conferred upon a justice of the peace or a city recorder, to entertain suits to collect delinquent taxes. State v. Van Every, 75 Mo. 530. And they are not deprived of jurisdiction by a provision that justices shall not have jurisdiction of actions for or against the town in which they are elected. Hancock v. Merriman, 46 Wis. 159. Non-Residents.-Action will be permitted against non-residents, unless the statute expressly excludes them. Lean v. Myers, 134 N. Y. 480. Mc 1. See Hinman v. Pope, 6 Ill. 131; Burns v. Ledbetter, 54 Tex. 374. Such a provision deprives a city of a pre-existing authority to seize and sell property. Lockhart v. Houston, 45 Tex. 317. Under a constitutional provision prohibiting the sale of land for taxes, except upon a judgment obtained in a court of record, the legislature may determine the time when application may be made and judgment rendered. And in case of special assessments and local taxes, the power to designate the time may be delegated to local or municipal authorities. Leindecker v. People, 98 Ill. 21. 2. Nebraska City v. Nebraska City Gas Light Co., Neb. 339; State v. Yellow Jacket Silver Min. Co., 14 Mo. 260; State v. New York, etc., R. Co., 60 Conn. 326; Merriam v. Moody, 25 Iowa 163; McInerny v. Reed, 23 fowa 410; Jefferson v. Whipple, 71 Mo. 519; Jefferson v. McCarthy, 74 Mo. 55; Jefferson v. Curry, 77 Mo. 230; State v. Severance, 55 Mo. 379; State v. Titt mann, 103 Mo. 553; Dugan v. Baltimore, 1 Gill & J. (Md.) 499; Clemens v. Baltimore, 16 Md. 208; Baltimore v. Howard, 6 Har. & J. (Md.) 383; Paine v. Spratley, 5 Kan. 525; Territory v. Reyburn, McCahon (Kan.) 134; Bergen v. Clarkson, 6 N. J. L. 352; Boody v. Watson, 64 N. H. 162; Hillsborough County v. Londonderry, 43 N. H. 453; Amite v. Clements, 24 La. Ann. 27; State v. Williams, 8 Tex. 384; Houston, etc., R. Co. v. State, 39 Tex. 149; Allen v. Galveston, 51 Tex. 302; Lockhart v. Houston, 45 Tex. 317; Board of Education v. Old Dominion, etc., Co. 18 W. Va. 441; Portland, etc., Ins. Co. v. Portland, 12 B. Mon. (Ky.) 77. See also Alexander v. Helber, 35 Mo. 334. 3. See State v. Duncan, 3 Lea (Tenn.) 679; Jonesboro'v. McKee, 2 Yerg.(Tenn.) 170; Rutledge v. Fogg, 3 Coldw. (Tenn.) 568; 91 Am. Dec. 299; Marr v. Bank of Tennessee, 4 Coldw. (Tenn.) 471; St. Louis, etc., R. Co. v. State, 47 Ark. 323; Perry County v. Selma, etc., R. Co., 58 Ala. 546; Hart v. Tiernan, 59 Conn. 521; New York v. Colgate, 12 N. Y. 140; McInerny v. Reed, 23 Iowa 410; Lancaster County v. Trimble, 34 Neb. 752; Lancaster County v. Rush, 35 Neb. 119; Board of Education v. Old Dominion, etc., Co., 18 W. Va. 441;. Garrett v. Memphis, 5 Fed. Rep. 860. In State v. Duncan, 3 Lea (Tenn.) 679, it was held that to enforce a lien for taxes by action is inherent in chancery courts, and does not depend upon statutory enactment. But in People v. Biggins, 96 Ill. 481, it was held that a tax lien is purely legal in its character, and can be enforced in chancery only when so provided by law. Compare Mix v. People, 116 III. 265. Where taxes are levied by a county as trustee for various corporations, such as states, cities, villages, school districts, etc., the county need not pay delinquent taxes before proceeding to foreclose the lien therefor and sell the property taxed. Lancaster County v. Trimble, 34 Neb. 752. and is not taken away, unless the statutory remedy is expressly made exclusive.1 As the personal liability to pay the tax exists independently of the lien, the right to recover the tax by action is not dependent upon the existence of a lien, nor does the existence of the lien prevent an action.4 As a general rule, judicial proceedings are to be resorted to in aid of the collection only when a seizure might prove an inadequate or inefficient mode of realizing the tax, or when ordinary The right of a collector to recover taxes paid by him to the treasurer, but not paid to him by suit, carries with it the right to sue in equity to enforce the lien for taxes, whether the lien has been assigned to him or not Hart v. Tiernan, 59 Conn. 521. 1. Baltimore v. Howard, 6 Har. & J. (Md.) 283; Eschbach v. Pitts, 6 Md. 71; Dugan v. Baltimore, 1 Gill & J. (Md.) 499; Appeal Tax Ct. v. Union R. Co., 50 Md. 275; Perry County v. Selma, etc., R. Co., 58 Ala. 547; Dubuque v. Illinois Cent. R. Co., 39 Iowa 56; Putman v. Fife Lake Tp., 45 Mich. 125; Bergen v. Clarkson, 6 N. J. L. 352; U. S. v. Washington Mills, 2 Cliff. (U. S.) 601; Garrett v. Memphis, 5 Fed. Rep. 860; Dollar Sav. Bank v. U. S., 19 Wall. (U. S.) 237; Metcalf v. Robinson, 2 McLean (U. S.) 364; Oakland v. Whipple, 39 Cal. 112; State v. Duncan, 3 Lea (Tenn.) 679; State v. Memphis, etc., R. Co., 14 Lea (Tenn.) 56; 22 Am. & Eng. R. Cas. 201; Memphis v. Looney, 9 Baxt. (Tenn.) 130. And see Burlington v. Burlington, etc., R. Co., 41 Iowa 134; Nashville v. Cowan, 10 Lea (Tenn.) 209; Edgfield v. Brien, 3 Tenn. Ch. 673; Dunlap v. Gallatin County, 15 Ill. 7; Ryan v. Gallatin County, 14 Ill. 78; People v. Davis, 112 Ill. 272; Meyer v. Burritt, 60 Conn. 117. In Appeal Tax Ct. v. Union R. Co., 50 Md. 274, it was held that upon the assessment of a tax, a duty arises upon the owners of the property taxed, to pay the taxes thus imposed, which may be enforced by an action at law as upon an implied assumpsit, notwithstanding the repeal of the act under which the tax was imposed. In State v. Georgia Co., 112 N. Car. 34, it was held that a tax is a debt which may be collected after the return of the tax list unsatisfied, by proceedings in the nature of a creditor's bill. 2. Meredith v. U. S., 13 Pet. (U. S.) 486; Kentucky Cent. R. Co. v. Com., 92 Ky. 64. And see Oakland v. Whipple, 39 Cal. 112; O'Grady v. Barnhisel, 23 Cal. 294; Hart v. Tiernan, 59 Conn. 521. The commencement of a personal action for the recovery of a tax, does not divest its lien. Eschbach v. Pitts, 6 Md. 71. Where a lien is given for taxes, and a mere money judgment has been obtained against the person whose duty it is to pay them, the state cannot, in an action against an alienee of such person's property, enforce the judgment as a lien on the property, without alleging and proving the steps necessary to the creation of a valid tax lien. Kentucky Cent. R. Co. v. Com., 92 Ky. 64. 3. Jefferson v. McCarty, 74 Mo. 55; Jefferson v. Whipple, 71 Mo. 519; Jefferson v. Curry, 77 Mo. 230; Meredith v. U. S., 13 Pet. (U. S.) 486. And see State v. Yellow Jacket Silver Min. Co., 14 Nev. 231. Rule Applied to Seizures.-In Leeds v. Hardy, 43 La. Ann. 810, it was held that the property assessed remains subject to seizure, even though the Statute of Limitations has run against the lien. Compare Sherwin v. Boston, etc., Sav. Bank, 137 Mass. 444. 4. Meredith v. U. S., 13 Pet. (U. S.) 486. And see Rundell v. Lakey, 40 N. Y. 517; State v. Yellow Jacket Silver Min. Co., 14 Nev. 231. 5. Mercier v. New Orleans, 42 La. Ann. 1135; Reed v. His Creditors, 39 La. Ann. 115; York v. Goodwin, 67 Me. 260: State v. Tittmann, 103 Mo. 553; Alexander v. Alexandria, 5 Cranch (U. S.) 1. Authorizing the collection of taxes by distress, does not preclude their recovery by an action of debt, where a distress would be ineffectual. Ryan v. Gallatin County, 14 Ill. 78. methods have been exhausted and the tax has been returned unpaid.1 (2) Construction of Provisions for Action.-Where the statute provides for a remedy by action, in particular cases, it is confined exclusively to the cases therein provided for; 2 and the general rule as to the strict construction and observance of the provisions of tax laws, applies to all requirements that are preliminary and jurisdictional in their nature.3 But this rule requiring strict compliance with every form of law, is not applicable to actions for delinquent taxes where jurisdiction has been acquired; 4 and mere irregularities will be allowed to effect a recovery, only to the extent that the taxpayer has been injured thereby.5 (3) Different Kinds of Actions-(a) Actions in Personam.--Where 1. McCallum v. Bethany Tp., 42 Mich. 457; State v. Adler, 68 Miss. 487; McLean v. Myers, 58 N. Y. Super. Ct. 337; Greene County v. Murphy, 107 N. Car. 36. In Greer v. Covington, 83 Ky. 410, it was held that the power given by the Kentucky statute to the city of Covington, to sue the taxpayer for unpaid taxes, is concurrent with its power of levy and sale by the tax collector; overruling Covington v. People's Bldg. Assoc. (Ky. 1882), 2 S. W. Rep. 323, where it was held that the tax collector must have first exhausted his power to levy and sell the estate of the taxpayer before resort could be had to the action. In Durham v. People, 67 Ill. 414, it was held that, in an action for taxes, the taxpayer could not object that the collector had not made the tax by distraining his personal property, where it appeared that the collector did levy on the property, but the objector replevied the same. In McLean v. Myers, 134 N. Y. 480, it was held that in the city and county of New York, the exhaustion of the warrant is not a condition precedent to the action. 2. Nebraska City v. Nebraska City Gas Light Co., 9 Neb. 339; Baldwin v. Hewett, 88 Ky. 673; Louisville Water Co. v. Com., 89 Ky. 244; McLean v. Myers, 58 N. Y. Super. Ct. 337. And see Washington County v. GermanAmerican Bank, 28 Minn. 360. 3. See Territory v. Delinquent Tax List (Arizona, 1887), 21 Pac. Rep. 888; Carlisle v. Watts, 78 Ala. 486; Driggers . Cassady, 71 Ala. 529; People v. Central Pac. R. Co., 83 Cal. 393; People v. Otis, 74 Ill. 384; Chicago v. Wright, 32 III. 192; Charles v. Waugh, 35 Ill. 315; People v. Brislin, 8o Ill. 424; Webb v. Bidwell, 15 Minn. 479; State v. Robyn, 93 Mo. 395; McCallum v. Bethany Tp., 42 Mich. 457; Clegg v. State, 42 Tex. 605. A statute authorizing amendments, and obviating the effect of omissions, errors, etc., cannot be held to waive substantial compliance with steps which are essential to give jurisdiction. It aids and obviates defects of form, but not of substance. People v. Otis, 74 Ill. 384. 4. State v. Central Pac. R. Co., 10 Nev. 47; Randolph v. Metcalf, 6 Coldw. (Tenn.) 400. And see Boyd v. Ellis, 107 Mo. 394; Law v. People, 87 Ill. 385; People v. Davis, 112 Ill. 272. The personal liability of a taxpayer may be enforced, even though irregularities have intervened in the proceeding, which would be fatal to an ordinary tax sale. Greenwood v. LaSalle, 137 Ill. 225; Sanderson v. LaSalle, 117 Ill. 171. See also Lord v. Parker, 83 Me. 530. 5. State v. Northern Belle Mill, etc., Co., 15 Nev. 385; Hart v. Plum, 14 Cal. 155; Chiniquy v. People, 78 Ill. 570; Purrington v. People, 79 Ill. 11; Law v. People, 87 Ill. 385; Spellman v. Curtenius, 12 Ill. 409; Houston County v. Jessup, 22 Minn. 552; Brown v. Walker, 85 Mo. 262. And see Chambers v. People, 113 Ill. 509; Edwards v. People, 88 Ill. 340; Gager v. Prout, 48 Ohio St. 89. Much greater particularity and precision are required when a forfeiture is sought to be enforced, than when a simple recovery of a tax by suit is asked for. Rockland v. Ulmer, 84 Me. 503. In Nevada, it has been held that the omissions of officers to perform the duties required of them between the the statute authorizes the enforcement of the personal obligation imposed upon the taxpayer by action, the action contemplated is the ordinary action of debt or assumpsit.1 Where a common-law action is permitted, assumpsit is the usual form;2 but either debt or assumpsit may be maintained.3 The action must be brought against the person whose duty it was to pay. If the tax is imposed upon property, the action should be brought against the person who owned the property at the time of the assessment, even though subsequent changes of ownership have taken place. Personal service has been held a necessary basis for a personal judgment. The appearance of the taxpayer on an application for judgment against his land, and his defense on the merits, do not change the proceedings from an action in rem to one in personam.8 (b) Actions in Rem.-In some states, an action in rem is allowed the collector; that is, an action or an application for judgment against the specific property taxed is authorized.9 Such an assessment and commencement of the suit, constitute no defense to a suit for taxes, as such acts are by statute directory only. State v. Sadler, 21 Nev. 13. 1. Byrne v. LaSalle, 123 Ill. 581. And see Wheeler v. Wilson, 57 Vt. 157; U. S. v. Lyman, 1 Mason (U. S.) 481; Meredith v. U. S., 13 Pet. (U. S.) 486. 2. See U. S. v. Washington Mills, 2 Cliff. (U. S.) 601; Baltimore v. Howard, 6 Har. & J. (Md.) 383; Gunther v. Baltimore, 55 Md. 457; Appeal Tax Ct. v. Union R. Co., 50 Md. 274; State v. Yellow Jacket Silver Min. Co., 14 Nev. 220; Putman v. Fife Lake Tp., 45 Mich. 125. 3. Dollar Sav. Bank v. U. S., 19 Wall. (U. S.) 237; Ryan v. Gallatin County, 14 Ill. 78. And see Meredith v. U. S., 13 Pet. (U. S.) 486; U. S. v. Lyman, i Mason (U. S.) 498; Portland, etc., Ins. Co. v. Portland, 12 B. Mon. (Ky.) 77. In Vogel v. Vogler, 78 Ind. 353, it was held that in an action by a county treasurer against a guardian, the wards are not proper parties to the action. 4. Everson v. Syracuse, 29 Hun (N. Y.) 485. And see Freetown v. Fish, 123 Mass. 355. In Topsham v. Blondell, 82 Me. 152, it was held that a tax assessed against a husband and wife may be recovered in an action against the husband alone, if the non-joinder of the wife is not pleaded in abatement. The officer authorized to enforce a tax bill, may assume that the person in whom the records show the title to be vested, is the true owner, and sue accordingly. Vance v. Corrigan, 78 Mo. 94. 5. Greenwood v. La Salle, 137 Ill. 225; Laketon Tp. v. Akeley, 74 Mich. 695; Jefferson v. Curry, 77 Mo. 230; Jefferson v. Mock, 74 Mo. 61. Where persons who are necessary parties to a proceeding for taxes, refuse to appear, and the court has no power to reach them by its process, the bill must be dismissed. Virden v. Needles, 98 Ill. 366. Where one who has no interest, is made a party defendant, he must disclaim by answer. Kansas City v. Hannibal, etc., R. Co., 77 Mo. 180. 6. Everson v. Syracuse, 29 Hun (N. Y.) 485; Laketon Tp. v. Akeley, 74 Mich. 695. Nor does the distinction of the property relieve the owner from liability for the tax. Farrell v. U. S., 99 U. S. 221. In State v. Sack, 79 Mo. 661, it was held that action may be brought against the record owner of the land, though he is not the true owner. 7. People v. Fox, 39 Cal. 621. Provisions authorizing constructive service, or service by publication, are not unconstitutional, even when personal judgment may be rendered. New Orleans v. Cannon, 10 La. Ann. 764. And see In re New Orleans Drainage Co., 11 La. Ann. 238; Eitel v. Foote, 39 Cal. 439. 8. People v. Dragstran, 100 Ill. 286. 9. People v. Dragstran, 100 Ill. 286; Hills v. Chicago, 60 Ill. 86; People v. Otis, 74 Ill. 384; Pidgeon v. People, 36 Ill. 249; Allen v. McCabe, 93 Mo. 135. And see Scammon v. Chicago, 40 Ill. |