which case each tax must bear the expense of its own collection.1 But the commissions are usually added to the tax and collected from the taxpayer, unless otherwise expressly provided for.2 Where the commissions are to be collected from the taxpayer, no liability attaches to the state therefor, and where, at a sale of land for taxes, the land falls to the state, the collector is entitled to no fees.3

A defaulting collector is, of course, entitled to nothing for his services.4 And when no services have been rendered, there can be

no claim for commissions. Where the statute allows commissions upon collections actually made, no compensation can be recovered for expenses incurred in ineffectual efforts to collect.2 Ordinarily, however, reimbursements for reasonable and necessary expenses will be allowed.3

Where the commissions or fees are payable by the government, claims therefor are generally required to be audited by a designated officer before they become a public liability. Where the fees are added to the tax and collected from the taxpayer, the same methods are pursued for their collection as for the collection of the tax itself.5

1. See Wheatley v. Covington, II Bush (Ky.) 18; Labette County v. Franklin, 16 Kan. 450; Vermilion Parish v. Brookshier, 31 La. Ann. 736; Anderson v. Hawks, 70 Miss. 638; Smith v. New York, 37 N. Y. 518.

In Com. v. Scott, 7 Pa. Co. Ct. Rep. 409, it was held that a collector is not entitled to commissions on an abatement allowed by law to the taxpayer for prompt payment.

In Randolph County v. Trogdon, 75 N. Car. 350, it was held that an outgoing sheriff is entitled to the commissions on the amount of taxes he pays over to his successor in office, and that such successor is not entitled to commissions thereon. See also Bright v. Hewes, 18 La. Ann. 666.

In Boggs v. Placer County, 65 Cal. 561, it was held that a tax collector can recover fees only for taxes collected by himself, and not for taxes recovered by a suit brought by the district attorney on behalf of the county.

In Aplin v. Baker, 84 Mich. 113, it was held that a delinquent taxpayer is not liable for the expense of unnecessary trouble in serving several different subpœnas issued by a county clerk against several distinct lots owned by the taxpayer; he is liable for the cost of one subpœna only.

2. Gordon v. Lafayette County, 74 Mo. 426; Thralls v. Sumner County, 24 Kan. 594; Titus v. Howard County, 17 Kan. 363; Labette Co. v. Franklin, 16 Kan. 450; Miles v. Miller, 5 Neb. 269. And see Gilchrist v. Wilkes Barre, 142 Pa. St. 114.

In Wheatly v. Covington, 11 Bush (Ky.) 18, it was held that a tax collector cannot recover damages because he has been prevented from performing the services of his office, whereby he would have earned the compensation attached thereto. In

Aldrich v. Pickard, 14 Lea (Tenn.) 456, it was held that the compensation of a collector who sells land for taxes, does not depend upon the validity of the sale.

3. See Joslyn v. Tracy, 19 Vt. 569; People v. Long, 13 Ill. 629; Titus 7. Howard County, 17 Kan. 363; Carville v. Additon, 62 Me. 459; Gilchrist v. Wilkes Barre, 142 Pa. St. 114; Titus v. Howard County, 17 Kan. 363; Thatcher v. People, 79 Ill. 597; Taylor v. Umatilla County, 6 Oregon 402; O'Grady v. Barnhisel, 23 Cal. 287.

In Philadelphia v. Flanigen, 47 Pa. St. 21, it was held that a receiver of taxes has no power to bind the state for advertising fees in excess of the amount appropriated therefor, or to advertise otherwise than as directed by the

council.

4. See PUBLIC OFFICERS, Vol. 19, pp. 378, 537. And see also Mathesie v. Knox County, 82 Ind. 172; Shaver v. Robinson, 59 Ala. 195; State v. Brewer, 64 Ala. 287; Akers v. Burch, 12 Heisk. (Tenn.) 606.

Where the county treasurer, by mistake or otherwise, retains a less per cent., for making a collection, than he is entitled to, he is entitled to an order from a county board for repayment of the amount to which he was entitled, in excess of the amount actually retained. Harrison County v. Benson, 83 Ind. 469. But if the commissioners of a county allow an excessive claim for printing the delinquent list, the same cannot be recovered back, where the list was before them, and there was no mistake of fact. Warren County v. Gregory, 42 Ind. 32.

5. See Board of School Com'rs v. Wasson, 74 Ind. 134; Thralls v. Sumner County, 24 Kan. 594; Baker v. Kelley, 11 Minn. 480; Wilcox v. Gladwin, 50 Conn. 77.

XV. TAX SALES--1. Personal Property. The provisions of the statutes in regard to notice of the time and place of the sale are generally mandatory. It has been held that where the collector is also constable, his notification of the sale is not vitiated by his adding to his signature the word "constable" instead of "collector." When the officer is required to keep the property a specified time before offering it for sale, in order that the owner may have an opportunity to redeem, the sale is illegal if the full time be not given.3 And, on the other hand, if the sale be made after the expiration of the time limited by statute for the purpose, it is irregular, and the officer becomes a trespasser ab initio. The officer may adjourn the sale in his discretion; his powers for that purpose being identical with those of an officer having an execution for collection. But the adjournment must be to a definite time; and a sale before the time to which the adjournment is made, is void. Where the officer who sells becomes himself the purchaser, the sale is voidable at the instance of the owner of the goods. The property should be sold in separate parcels, and only so much should be sold as is required to pay the taxes, charges, and costs.8

1. Lyle v. Jacques, 101 Ill. 644; Ward v. Carson River Wood Co., 13 Nev. 44. As to the requisites of notice of the sale in Massachusetts, see Rawson v. Spencer, 113 Mass. 40; Barnard v. Graves, 13 Met. (Mass.) 85.

Vermont Rev. Stat., p. 530, §§ 10, 11, requiring the officer to keep the goods four days before advertising the sale, and to give six days' notice before selling, does not restrict him to that time, though he may not advertise and sell in less time. But he must advertise and sell within a reasonable time after the four and six days, respectively, have expired. Clemons v. Lewis, 36 Vt. 674.

In Maine, the collector is not required to sell the distrained property within the limits of the town in which it is first seized by him. Carville v. Additon, 62 Me. 459.

2. Barnard v. Graves, 13 Met. (Mass.) 85.

3. Lefavour v. Barlett, 42 N. H. 555; Mason v. Thomas, 36 N. H. 302; Souhegan Nail, etc., Factory v. McConihe, 7 N. H. 309.

4. Brackett v. Vining, 49 Me. 356; Pierce v. Benjamin, 14 Pick. (Mass.) 356; 25 Am. Dec. 396.

Where the statute requires the sale to be made within seven days after seizure, a sale not made until twenty days thereafter is void. Noyes v. Haverhill, II Cush. (Mass.) 338.

5. Spear v. Tilson, 24 Vt. 420.

6. Buzzell v. Johnson, 54 Vt. 90. Here the sale was had at ten a. m., under an adjournment until one p. m.; this was held to be irregular and to render the officer a trespasser. And it mattered not that the property sold well, was applied to the plaintiff's taxes, and that the plaintiff's attorney was present, knew of the mistake, and said nothing.

But where the hour named in the notice of adjournment was 4 a. m. instead of 4 p. m., and the officer rectified the mistake sometime in the morning of the day on which the sale occurred, it was held that this mistake was obvious and not calculated to mislead anyone, and that the officer in making the sale was not a trespasser. Wheelock v. Archer, 26 Vt. 379.

7. Pierce v. Benjamin, 14 Pick. (Mass.) 356; 25 Am. Dec. 396.

8. In Shimer v. Mosher, 39 Hun. (N. Y.) 153, the sale was adjudged void and the officer a trespasser ab initio, for these reasons: The property, consisting of a horse and six watches, was sold in one parcel; it was not within the view of, or exposed to, the bidders; and it was struck off to a bidder before anyone else could possibly make a bid, although many expressed a desire to do so.

In Ward v. Carson River Wood Co., 13 Nev. 44, the officer was required by the statute to sell "a sufficient amount

2. Lands-a. Power to SELL.-A county, city, or other municipal corporation has no power to enforce the collection of taxes by a sale of lands, in the absence of an express grant to that effect. A grant of power to “ assess and collect taxes," does

of the property to pay the taxes, charges," etc. He sold two thousand cords of wood, the entire quantity, though there was no proof that this course was necessary in order to pay the sum due, and it was held to be irregular-he should have offered the wood for sale by the cord, and sold only so much as was sufficient to pay the taxes, charges, etc.

In Leaton v. Murphy, 78 Mich. 77, the defendant, a township treasurer, sold two horses, the property of the plaintiff, under a tax warrant. The horses were sold together and bought in by a brother of the defendant for the amount of the taxes. The horses were not a matched team; nor did it appear that it was better for the interest of the parties to sell them together, and from an appraisal, it appeared that either of the horses was worth more than the taxes due. The sale was declared void.

For a case of sale of a note and mortgage for taxes, and purchase of the same by the maker for an amount less than their face value, see Irby v. Blain, 31 Kan. 716.

cess. Hoitt v. Burnham, 61 N. H. 620; Kelley v. Noyes, 43 N. H. 209; Johnson v. Allen, 48 N. H. 235.

1. Sharp v. Speir, 4 Hill (N. Y.) 76; Merriam v. Moody, 25 Iowa 163; Dubuque v. Harrison, 34 Iowa 163; McInerny v. Reed, 23 Iowa 410; Iam v. Miller, 20 Iowa 450; Bergen v. Clarkson, 6 N. J. L. 352.

In Sharp v. Speir, 4 Hill (N. Y.) 76, the court, by Bronson, J., said: "A corporation must show a grant, either in terms or by necessary implication, for all the powers which it attempts to exercise. And especially must this be done when it claims the right, by taxing or otherwise, to divest individuals of their property without their consent."

In Beaty v. Knowler, 4 Pet. (U. S.) 152, which was a case of a corporation sale of lands for taxes, the court, by McLean, J., remarked: "That a corporation is strictly limited to the exercise of those powers which are especially conferred upon it; the exercise of the corporate franchise being restrictive of individual rights cannot be extended beyond the letter and spirit of the act of incorporation." And he subsequently In Kansas, it is held that where the adds: "The power to impose a tax on sheriff holds a tax warrant issued by a real estate and to sell it where there is county treasurer and levies it previous a to the return day of the warrant, but does not sell the property until three days after the return day, the sale is not void because made after the return day. Blain v. Irby, 25 Kan. 499.

The words "the distress shall be openly sold" as used in Maine Rev. Sts., ch. 6, § 104, are not to be construed as authorizing the officer to sell any additional articles after enough has been sold to pay the sum due. Where the officer, after selling enough to pay the sum due, sells other personal property distrained, he will not become a trespasser ab initio as to any of the articles sold, except such as he has sold in excess of his authority. Seekins v. Goodale, 61 Me. 400, explaining Williamson v. Dow, 32 Me. 559.

Return.-In Connecticut, the officer's return is not required to specify the day of the week on which the sale was had. Picket v. Allen, 10 Conn. 145. In New Hampshire, the tax collector's warrant is not a returnable pro

failure to pay the tax, is a high prerogative and should never be exercised where the right is doubtful." Referring to this observation Bronson, J., in Sharp v. Speir, 4 Hill (N. Y.) 76, said: "The justice of the remark is obvious. Every statute derogatory to the rights of property or that takes away the estate of a citizen, ought to be strictly construed. It should never have an equitable construction."

And in Merriam v. Moody, 25 Iowa 163, the court, by Dillon, Č. J., said: "The rule of law denying to these corporations constructive power to sell the property of the citizen, except where the power is unmistakably given, and the further rule of law that if there fairly exists a doubt. concerning the power, the doubt is to be resolved against the existence of the power, in favor of the public and against the corporation, are founded in the highest wisdom and sanctioned by universal experience."

And Mr. Blackwell, in his work on

not carry with it the power to collect by sale. Nor will the power be inferred from an express provision in the charter that the collection of the taxes "shall be enforced as may be provided for by ordinances of the city."2

But where the grant of the power "to assess and collect" is accompanied by provisions distinctly and unequivocally assuming the existence of the power to sell, it must be regarded as a legislative interpretation recognizing the existence of such power.3 And when the power to sell is given, it is to be strictly construed. Thus, power given to a city to sell lands for taxes imposed thereon, does not authorize a sale for taxes which by the charter are to be imposed upon owners and occupants merely, and not upon their land; nor will a power given to sell for taxes authorize a

Tax Titles (4th ed.) 448, says that a corporation, whose powers in this respect are more strictly construed than those of the state," cannot sell the goods or lands of the delinquent unless there is an express grant in its charter."

See the following cases where the right was given in express terms: Haskel v. Burlington, 30 Iowa 232; Augustine v. Jennings, 42 Iowa 198; Ide . Finneran, 29 Kan. 569; Placerville v. Wilcox, 35 Cal. 21; Jennings 7. Rudd, 40 Ga. 49.

The power to sell lands for taxes levied by a municipality situated in one of the territories of the United States, is to be found in the act of Congress, not in the ordinances of the municipality. The latter can neither increase nor vary it, nor impose any terms or conditions which can affect the validity of a sale made within the authority conferred by the statutes. Thompson v. Roe, 22 How. (U. S.) 422.

1. McInerny v. Reed, 23 Iowa 410; Dubuque v. Harrison, 34 Iowa 163; Merriam v. Moody, 25 Iowa 163; Ham v. Miller, 20 Iowa 450. In this last case it is said the power to "provide for the assessment of all taxable property" or "to collect taxes," does not include that of selling and conveying in case of non-payment. This power, so high, delicate and important in its nature and character, must not rest upon an implication so remote, nor depend for the mode and manner of its exercise upon the mere will or discretion of the city council; and especially is this so, where the charter, as in this instance, fails to leave this or any kindred matter to such discretion or will. And in Paine v. Spratley, 5 Kan. 525, following the above decisions, the court said: "One ground (and perhaps the 25 C. of L.-24

most important and valid, and, in our
opinion at least, a sufficient one) upon
which these decisions rest, is that such
power of sale is not a necessary inci-
dent to the power to 'levy and col-
lect,' nor indispensable to the objects
and purposes of a municipal corpora-
tion. The power to levy and collect
can be exercised and enjoyed, and the
objects of the corporation secured,
without the power of sale
for instance by judicial proceedings."
2. Merriam 7. Moody, 25 Iowa 163;
Paine . Spratley, 5 Kan. 525.

as

3. St. Louis v. Russell, 9 Mo. 508. In this case the charter of St. Louis gave to the city council the power "to levy and collect taxes upon all persons and property made taxable by law for state purposes." The court said: "If this section of the act were alone on the subject, there might be room for contending that the sale of land was not the only, or the necessary, mode by which the tax could be collected, and therefore, the power of sale would not arise by implication from the granted power to levy and collect.' But we regard the eighth section of the sixth article of the charter as a legislative interpretation of this power 'to levy and collect taxes.' That section provides that the mayor and council shall have power by ordinance to direct the manner in which any property, real or personal, advertised for sale, or sold for taxes by authority of the corporation, may be redeemed. This is a clear and distinct recognition of the power in the city to sell land for the non-payment of taxes, and is sufficient to remove any doubt which the general phraseology of the previous article might create." See also Carondelet v. Picot, 38 Mo. 125. 4. Sharp v. Speir, 4 Hill (N. Y.) 76.

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