1. State v. Central Pac. R. Co., 17 Nev. 259; Boyce v. Auditor Gen❜l, 90 Mich. 314; Black v. McGonigle, 103 Mo. 192. It may be to correct its to the facts. 20 Neb. 595.

compelled by mandamus record so as to conform State v. Dodge County,

2. Edes 7. Boardman, 58 N. H. 584; Pierre Water Works Co. v. Hughes County, 5 Dakota 145; Sioux City, etc., R. Co. v. Washington County, 3 Neb. 30. But see Kansas Pac. R. Co. v. Riley County, 20 Kan. 141; Auditor Gen'l v. Atchison, etc., R. Co., 6 Kan. 500; Rhoads v. Cushman, 45 Ind. 85.

Courts of general jurisdiction, in the city of Chicago, may examine into the proceedings of the common council, as to all matters connected with a tax or assessment, without a resort to the common-law writ of certiorari. Pease v. Chicago, 21 Ill. 500.

If assessors place property upon the tax roll not liable to taxation, and refuse, upon the application of the persons aggrieved, to strike it off, their action is reviewable by certiorari. People v. Ogdensburgh, 48 N. Y. 390. And it is essential, in such case, for the board to return a full record of their proceedings. Haven v. Essex County, 155 Mass. 467.

Right to Jury Trial.—Where a jury is demanded and refused, and the finding by the court is the same as under the evidence, the verdict must be sustained; the issue being really one of law, the refusal to grant a jury does not justify a reversal of the judgment. Bremer County Bank v. Bremer County, 42 Iowa 394.

3. Matter of Des Moines Water Co., 48 Iowa 324; Grimes v. Burlington, 74 Iowa 123; Johnson v. People, 84 Ill. 377; Fowler . Perkins, 77 Ill. 261; Preston v. Johnson, 104 Ill. 625; Simmons v. Scott County, 68 Miss. 37; Lowell v. Middlesex County, 146 Mass. 403; Bradley . Laconia (N. H. 1890), 20 Atl. Rep. 331; State v. North Plainfield, 43 N. J. L. 349; Knisella v. Auburn, 54 Hun (N. Y.) 634; Kissim

mee City v. Cannon, 26 Fla. 3; Randle v. Williams, 18 Ark. 380; Lehman v. Robinson, 59 Ala. 219; Albert v. Board of Revision, 139 Pa. St. 467; Clinton School Dist.'s Appeal, 56 Pa. St. 315; Pringle's Appeal, 6 Kulp. (Pa.) 525; New Orleans Gas Light Co. v. Board of Assessors, 31 La. Ann. 270, 475; Louisiana Brewing Co. v. Board of Assessors, 41 La. Ann. 565.

Under the Illinois statute, where the town board improperly increases an assessment, the owner of the property assessed may apply for relief to the county board. St. Louis Bridge Co. v. People, 128 Ill. 422.

In New Jersey, power is conferred upon the supreme court to correct an assessment for taxes, if it can be shown that the amount or valuation of the taxable property for which any person is therein assessed is too large. State v. Elizabeth, 39 N. J. L. 249; State v. Metz, 31 N. J. L. 365; State v. Parker, 34 N. J. L. 49.

Where there are two affirmative statutes authorizing an appeal from the determination of a board of equalization, one does not repeal the other unless they are directly inconsistent, and courts will seek for such a construction

as will reconcile them. Fowler 7. Perkins, 77 Ill. 271.

In Pierre Water Works Co. v. Hughes County, 5 Dakota 145, it was held that where the county commissioners constitute a board of equalization, a statute providing for appeal from all decisions of the board of county commissioners gives the right to appeal from their decisions fixing the value of property for taxation, made when acting as a board of equalization.

But in Sioux City, etc., R. Co. v. Washington County, 3 Neb. 30, it was held that an appeal from a decision of the county commissioners, sitting as a board of equalization, did not lie, the two boards being separate tribunals; the right of appeal allowed by statute from one board, did not necessarily imply a right to appeal from the other.

1. Ohio, etc., R. Co. v. Lawrence County, 27 Ill. 50; People v. Lots in Ashley, 122 Ill. 297; Worthington v. Pike, 23 Ill. 363; East St. Louis, etc., R. Co. v. People, 119 Ill. 182; Ward v. Beale, 91 Ky. 60; General Custer Min. Co. v. Van Camp (Idaho, 1884), 3 Pac. Rep. 22; Rhoads v. Cushman, 45 Ind. 85; Durham v. Thompson, 2 N. H. 166; Stewart v. Maple, 70 Pa. St. 221; Clinton School Dist.'s Appeal, 56 Pa. St. 315; State v. Bettle, 50 N. J. L. 132; Tomlinson v. Board of Equalization, 88 Tenn. 1. And see Gilpatrick v. Saco, 57 Me. 277; Western R. Co. v. Nolan, 48 N. Y. 513; Bell v. Pierce, 48 Barb. (N. Y.) 51; Genesee Valley Nat. Bank v. Livingston County, 53 Barb. (N. Y.) 223; Kimber v. Schuylkill County, 20 Pa. St. 366; Silver v. Schuylkill County, 20 Pa. St. 369; McDonald v. Escanaba, 62 Mich. 555.

The courts cannot substitute their judgment as to the valuation of property for that of the board of assessors or of equalization, State Railroad Tax Cases, 92 U. S. 575; and will not interfere on the ground that the assessors erred in judgment by assessing too high or too low, if they acted honestly. People v. Lots in Ashley, 122 Ill. 297. And see People v. Haupt, 104 N. Y. 377; Monroe v. New Canaan, 43

Conn. 309.

In Boody v. Watson, 64 N. H. 162, it was held that an erroneous judgment of a court of assessment is reversible by the common-law power of general superintendence for correcting errors of courts of inferior jurisdiction, where no other remedy is expressly provided for. And in Ohio, etc., R. Co. v. Lawrence County, 27 Ill. 50, it was held that if any remedy existed, it was by certiorari. See also Durham v. Thompson, 2 N. H. 166.

2. See People v. Lots in Ashley, 122 Ill. 297; Lowell v. Middlesex County, 146 Mass. 403; Albert v. Board of Revision, 139 Pa. St. 467; People v. Carter, 109 N. Y. 557. In Bremer County Bank v. Bremer County, 42 Iowa 394, it was held that where the statute does not provide the formalities of an appeal,

a court of record will be presumed to have acquired jurisdiction when proper notices of appeal have been served.

A petition on appeal must distinctly aver that the board have increased the assessment without any reasonable evidence. King v. Parker, 73 Iowa 757.

In People v. Carter, 119 N. Y. 557, it was held that an allegation that the taxpayer appeared before the assessor on grievance day and asked to have the assessment corrected, which is not denied, and put in issue by the return, must be admitted in proceedings to review the assessment.

But when allowed, the fact that a city council irregularly exercised the authority conferred upon it as a board of equalization, will not deprive a property holder of the right of appeal to the circuit court. Ingersoll v. Des Moines, 46 Iowa 553:

And where a taxpayer prosecuted his case by an original action, when he should have sought his remedy for an improper assessment by an appeal from the action of the board; and no objection was made to the course of procedure by the defendant, who was defeated in the court below, he cannot make the objection for the first time in the appellate court. Babcock v. Board of Equalization, 65 Iowa 110.

3. Henkle v. Keota, 68 Iowa 334; Babcock v. Board of Equalization, 65 Iowa 110.

4. Matter of Des Moines Water Co., 48 Iowa 324. And see King v. Parker, 73 Iowa 757; State v. Randolph, 25 N. J. L. 427. In Leach v. Blakely, 34 Vt. 134, it was held that the word "appeal," denotes an application for relief, and that therefore the board is limited to granting the relief by reducing the assessment or to the denial of any relief.

In Edes v. Boardman, 58 N. H. 580, it was held that an appeal from a determination of a board of equalization is an equitable proceeding, and that, however erroneous the law, or in fact the assessment, may be, only so much of the tax is avoided as in equity the appellant ought to pay.

5. King v. Parker, 73 Iowa 757; State

v. Bettle, 50 N. J. L. 132; People v. Williams (Supreme Ct.), 20 N. Y. Supp. 350.

A determination will not be disturbed unless clearly erroneous. People v. Campbell, 70 Hun (N. Y.) 599.

Admission of Evidence on Appeal.-As a general rule, evidence may be admitted in addition to the facts shown by the record, the object of the appeal being to secure a new trial on the merits. Grimes v. Burlington, 74 Iowa 123. In New York, on certiorari to review a tax assessment, the court may appoint a referee to take such testimony as it may direct. People v. Zoeller (Supreme Ct.), 15 N. Y. Supp. 684. And see Hutchinson v. Board of Equalization, 66 Iowa 35.

1. Oregon, etc., Sav. Bank v. Catlin, 15 Oregon 342. And see Wood v. Riddle, 14 Oregon 254.

2. Heine v. Levee Com'rs, 19 Wall. (U. S.) 655; Tompkins v. Little Rock, etc., R. Co., 18 Fed. Rep. 344; U. S. v. Pacific R. Co., 4 Dill. (U. S.) 71; Morrow v. Dows, 28 N. J. Eq. 463; State v. Van Horn, 45 N. J. L. 136; Camden v. Allen, 26 N. J. L. 398; Garrettson v. Scofield, 44 Iowa 37; Jaffray v. Anderson, 66 Iowa 719; Hedman v. Anderson, 8 Neb. 180; Otoe County v. Matthews, 18 Neb. 466; Meyer v. Burritt, 60 Conn. 122; Albany Brewing Co. v. Mereden, 48 Conn. 243; Philadelphia 7. Greble, 38 Pa. St. 339; Burgwin v. Burchfield, 28 Pittsb L. J. (Pa.) 13; Allegheny City's Appeal, 41 Pa. St. 60; Brigg's Appeal, 38 Leg. Int. (Pa.) 262; Board of Education v. Old Dominion Iron, etc., Co., 18 W. Va. 441; Kentucky Cent. R. Co. v. Com., 92 Ky. 64; Miller v. Anderson, S. Dak. 539; Tousey v. Post, 91 Mich. 631; Lyon 7. Guthard, 52 Mich. 271; Bailey v. Fuqua, 24 Miss. 497; Anderson v. State, 23 Miss. 459; Barker v. Smith, 10 S. Car. 226.

The obligation to assess taxes does not give a lien on the property on which they ought to be assessed. Heine 7. Levee Com'rs, 19 Wall. (U. S.) 655; Rees v. Watertown, 19 Wall. (U. S.) 107. Right of prior payment given by statute does not operate as a lien. Anderson v. State, 23 Miss. 459; U. S. v. Hooe, 3 Cranch (U. S.) 73.

3. Philadelphia v. Grevle, 38 Pa. St. 339.

In Barker v. Smith, 10 S. Car. 226, the court, in discussing the question whether, under a certain state of facts, a lien existed, said: "In order to create a lien on land, for the payment of a tax, it is necessary that there should be either a declaration to that effect by some act of legislature, or necessity for such lien, in order to render effective means provided for the enforcement of such tax;" and again, "It follows, therefore, that while the legislature may, as an incident of the enforcement of a tax, create, in terms, a lien that may subsist with or without defined modes of converting such property into money, yet, failing to raise such lien directly, it can only be raised as incidental and subservient to such means as may be authorized for the enforcement of the tax, in which case it becomes an accessory to the power of disposition in respect thereto; intimating that there might be cases in which the existence of the lien might be inferred from the necessity of the case. 4. Cooley on Taxation (2d ed.), p. 444; New England L. & T. Co. v. Young, 81 Iowa 738; Jaffray v. Anderson, 66 Iowa 719.

5. Miller v. Anderson, I S. Dak. 539; State v. Newark, 42 N. J. L. 38; Howell v. Essex County, 32 N. J. Eq. 672.

The statute must be strictly construed as against the party in whose favor the lien is created, U. S. v. Pacific R. Co., 4 Dill. (U. S.) 71; conse

quently, in favor of innocent purchasers of the property subject to the lien. U. S. v. Pacific R. Co., 1 McCrary (U. S.) 1. So a lien created upon land upon which whisky was distilled, was held not to apply to a case where the distillation was made by one upon the land of another without his knowledge or consent. Gudger v. Bates, 52 Ga. 285.

The proceedings authorized by the statute to create and enforce the lien must be followed as directed. Lyon v. Alley, 130 U. S. 177; Creighton v. Manson, 27 Cal. 614.

It was held in Hayden v. Foster, 13 Pick. (Mass.) 492, that the provision in the Massachusetts Tax Act of 1824, "whenever any tax shall be assessed on any real estate liable to taxation, such tax shall be a lien on said estate," extended to county and city taxes as well as to state taxes, and that the lien continued in force until the tax was paid.

1. Kansas v. Hannibal, etc., R. Co., 77 Mo. 180.

2. Pittsburgh's Appeal, 40 Pa. St. 455. See also Dallam v. Oliver, 3 Gill (Md.) 445; Smith v. Auditor Gen'l, 20 Mich. 398; Clark v. Hall, 19 Mich. 356. 3. Osterberg v. Union Trust Co., 93 U. S. 424; New England L. & T. Co. v. Young, 81 Iowa 740; Parker v. Baxter, 2 Gray (Mass.) 185; Spratt v. Price, 18 Fla. 289.

The lien is upon the land itself and not merely upon the interest of one who has a life interest therein. Cooper v. Holmes, 71 Md. 20. And upon the title as well as the land. Oldhams v. Jones, 5 B. Mon. (Ky.) 458.

The lien attaches without regard to ownership, Dunlap v. Gallatin, 15 Ill. 7; so it matters not whether the owner be a resident or a non-resident. Edwards 7. Beaird, 1 Ill. 70.

4. Union Trust Co. v. Weber, 96 Ill. 346; Vanarsdalen's Appeal, 3 W. N. C. (Pa.) 463.

An assessment on the bank stock in the name of the bank, instead of in the names of the individual stockholders, does not invalidate the lien. Small v. Lawrenceburgh, 128 Ind. 231.

Taxes which are a lien upon land may be paid out of the proceeds of a sheriff's sale of an interest in the land, although the person whose title is sold never held title to the land in his own name, and the title, both legal and equitable at the time of the sale, was in a third person. Dungan's Appeal, 88 Pa. St. 414.

When, by a change of county boundaries made after land has been assessed for taxes, the land falls into another county, the lien of the tax on such land still continues, and the tax collector of the old county may enforce the collection of the tax by a sale. Moss v. Shear, 25 Cal. 38; Devor v. McClintock, 9 W. & S. (Pa.) 8o.

5. Bellocq v. New Orleans, 31 La. Ann. 471; Justice v. Logansport, 101 Ind. 326.

Where land is sold for state, county, and municipal taxes, and the proceeds are insufficient to pay all, the state cannot assert a prior right to satisfaction, if no special priority is given it by statute. Nashville v. Lee, 12 Lea. (Tenn.) 454.

6. 2 Dill. Mun. Corp., § 821; Kansas v. Payne, 71 Mo. 159; Schmidt v. Smith, 57 Mo. 135; Jefferson v. Whipple, 71 Mo. 519; Philadelphia 7. Greble, 38 Pa. St. 339; Howell v. Philadelphia, 38 Pa. St. 471; Mix v. Ross, 57 Ill. 125.

The want of a tax lien, however, does not deprive a city of the right to recover its taxes by action. Jefferson v. McCarty, 74 Mo. 55. See also Jef

ferson v. Mock, 74 Mo. 61. In New Haven v. Fair Haven, etc., R. Co., 38 Conn. 422; 9 Am. Rep. 399, the lien given to the city by its charter was held to be a security in addition to, and not interfering with, the remedy

at law.

1. Where a statute provided that "if any person fails to pay any tax levied on his real and personal property, the town collector may recover the same by a civil action in the name of the corporation before any court of competent jurisdiction," it was held that the tax after assessment did not become a lien, and the collector could not, before a personal judgment, obtain levy upon the property. Alexander 7. Helber, 35 Mo. 334; Ham v. Miller, 20 Iowa 450.

In Merriam v. Woody, 25 Iowa 163, it was held that in the charter of a municipal corporation, the grant of the power to levy and collect a special tax on lots within the corporation for the improvement of the walks in front thereof, does not include the power to sell and convey in case of the non-payment of the tax. Nor would such power be inferred from an express provision in the charter to the effect that the collection of the taxes provided for shall be enforced as may be provided by ordinances of the city.

The state may retain the tax lien although it has delegated the power to tax. Cook v. Auditor Gen'l, 79 Mich. 100.

2. Where, by the language of the legislative enactment, a city was empowered to "provide by ordinance or otherwise for the prompt collection of taxes due to the city, and to that end the city shall have power to sell both real and personal property," it was held that this language was sufficiently broad in its scope to allow the city to make its taxes a lien upon the property. Eschbach v. Pitts, 6 Md. 71. See Dallam v. Oliver, 3 Gill (Md.) 445. See also Dill. Mun. Corp., vol. 11, § 821, n. 2.

3. People v. Hastings, 29 Cal. 450; People . Pearis, 37 Cal. 259; Worth

ington v. Whitman, 67 Iowa 190; North Carolina R. Co. v. Alamance, 77 N. Car. 4; Bell v. Barnard, 37 Ill. App. 275.

A city cannot create a valid municipal lien for improving a street, unless the improvement is made in pursuance of law. Hershberger v. Pittsburgh, 115 Pa. St. 78; Western Pa., etc., R. Co. v. Allegheny, 92 Pa. St. 100.

4. U. S. v. Pacific R. Co., 1 McCrary (U. S.) 1; Bryn Mawr v. Anderson, Io Pa. Co. Ct. Rep. 442. See also Thurston v. Little, 3 Mass. 429; Louisville v. Bank of Kentucky, 3 Metc. (Ky.) 148; Judevine v. Jackson, 18 Vt. 470.

The list must strictly follow the statute. Graves v. Bruen, 11 Ill. 431. Listing in one class will not authorize the charging of the land with the tax of another class. Tibbetts v. Job, 11 Ill. 453.

A failure of the assessor to swear to the assessment roll when required to do. so by statute, renders the tax invalid, and, consequently, no lien can be created therefor. Morrill v. Taylor, 6 Neb. 236; Lynam v. Anderson, 9 Neb. 367; Hallo v. Helmer, 12 Neb. 87; McNish v. Perrine, 14 Neb. 582.

In Dows v. Dale, 74 Iowa 108, where delinquent taxes were not carried forward on the regular tax list as provided by statute, but were entered in a book kept by the treasurer, which was unknown to the law, it was held that there was no valid lien.

When the purchaser of real estate obtains a certificate from the treasurer that there are no delinquent taxes upon the property, and the tax books do not show any tax to be due, but it is found afterwards that there were delinquent taxes due thereon at the time, which had not been brought forward in the tax books, he is an innocent purchaser and takes the estate free from all liens for taxes. Jiska v. Ringgold County, 57 Iowa 630. And if the delinquent taxes are brought forward in the tax books after the purchase, they will not be a lien upon the property, as against the purchaser. Cummings v. Easton, 46 Iowa 183.

Record.-In Pennsylvania, the lien