Supreme Court of United States.
Absent... . JOHNSON, J. and TODD, J.
*66 JONES, for the Plaintiff in error.
*67 C. LEE, contra.
MARSHALL, Ch. J. after stating the facts of the case delivered the opinion of the Court as follows:
It is admitted that if the preliminary requisites of the law have not been complied with, the collector could have no authority to sell, and the conveyance can pass no title. On the part of the Plaintiff in error it is insisted that these requisites have been performed, and that the instruction given by the judge is erroneous. The instruction is that the sale was unauthorized and void.
It was proved in the cause that the proprietors of the land in controversy were non-residents of the state of Tennessee when the tax was assessed, and continued to be so to the time of bringing the action, and that they had no known agents in that state.
*68 The mode of proceeding with respect to non-residents is prescribed in the 11th and 13th sections of the act imposing the direct tax.
The object of the provisions of the 11th section is "lands, dwelling houses and slaves which shall not be "owned by or in the occupation or under the care or "superintendance of some person within the collection "district where the same shall be situated or found at "the time of the assessment aforesaid."
It is alleged that the Plaintiff below did not entitle himself to the provisions of this section by bringing himself within its description. He was a non-resident and had no known agent, but has not shown that there was no occupant of the land.
The testimony offered by both Plaintiff and Defendant is spread upon the record; and although the Plaintiff has not shown that there was no occupant, yet that fact came out in the testimony of the Defendant before the opinion of the Court was given. One of the tax lists produced by him states the land to be without an occupant; and the other which states John Grant to be the occupant, is so far disproved, because the case admits John Grant to have been, at the time, an inhabitant of Kentucky without any agent in the state of Tennessee.
The requisites of the 13th section of the act, which prescribes the course to be pursued where lands are to be sold because the taxes are in arrear and unpaid for twelve months, have been observed. The requisites of the 11th section, which prescribes the duty of the collector after the assessment of the tax before he can proceed to distrain for it, have not been observed. The cause depends on this single point was it the duty of the collector, previous to selling the lands of a non-resident in the manner prescribed by the 13th section of the act to make the publications prescribed in the 11th section?
This will require a consideration of the spirit and intent of the law.
*69 The 9th section makes it the duty of the collector to advertise that the tax has become due and payable, and the times and places at which he will attend for its collection. It is then his duty to apply once at the respective dwellings of those who have failed to attend such places, and there demand the taxes respectively due from them. If the taxes shall not be then paid, or within twenty days thereafter, it is lawful for the collector to proceed to collect the same by distress and sale.
The 11th section prescribes the duty of the collector with respect to lands, &c. not owned, &c. by some person within the collection district wherein the same shall be situated.
Upon receiving lists of such lands, &c. he is to transmit certified copies thereof to the surveyors of the revenue of the assessment districts, respectively, within which such persons respectively reside, whose duty it is to give personal notice of the claim to those who are liable for it. If the tax shall not be paid within a specified time after this notice, it then becomes the duty of the collector to collect the same by distress.
If the residence of the owner of such land be unknown, this section requires certain publications to be made as a substitute for personal notice; after which it is the duty of the collector to proceed to collect the tax by distress in like manner as where a personal demand has been made.
The 13th section prescribes the duty of the collector, and the forms to be observed in the sale of land the taxes on which remain unpaid for one year. This section contains no reference to those which preceded it, but marks out the course of the collector in the specific case. It is therefore contended, and the argument has great weight, that if the requisites of this section be complied with, the sale is valid. This opinion is in conformity with the letter of the section; and it is conceded that the intent must be very clear which will justify a connexion of that section with those which precede it, so as to ingraft upon it those acts which must be performed by the collector before he can distrain for taxes. But in this case, when we take the whole statute *70 together, such intent is believed to be sufficiently apparent.
There is, throughout the act, an obvious anxiety in the legislature to avoid coercive means of collection, unless such means should be necessary; and to give every owner of lands the most full information of the sum for which he was liable, and to afford him the most easy opportunity to pay it. Thus the accruing of the tax is to be advertised, and the times and places at which the collector will attend to receive it. A personal demand at the dwelling houses of those who have neglected to attend to this notice must then be made, a reasonable time before the collector can collect the tax by distress. Where lands are owned by non-residents whose places of residence are known, this personal notice is still required; and where their residence is unknown, certain publications are substituted for and deemed equivalent to personal notice and demand. In each case, it is made the duty of the collector to proceed to collect the tax by distress and sale.
From this view of the law it is inferred, not only that the legislature was anxious to avoid coercive means of collection, but has also manifested a solicitude to collect the tax by distress and sale of personal property rather than by a sale of the land itself. That all the means of collection prescribed in the act must have been tried, and must have failed before a sale of the land can be made. The duty of the collector to make a personal demand from the resident owner of lands, and to make those publications which the law substitutes for a personal demand where the residence of the owner is unknown, does not depend on the fact that personal property is or is not on the land from which the tax may be levied by distress. It is his duty to proceed in the manner prescribed in the 9th and 11th sections in every case. After having so proceeded, it is his positive duty to levy the tax by distress, if property liable to distress can be found. If, notwithstanding the proceedings directed in the 9th and 11th sections, the tax shall remain one year unpaid, it is to be raised by a sale of the land. It appears to the Court that the 13th section pre-supposes every thing enjoined in the 9th and 11th sections to have been performed, and that the validity of the *71 sale of land owned by a non-resident, made by the collector for the non-payment of taxes must depend not only on his having made the publications required in the 13th section, but on his having made those also which are required in the 11th section. Those publications not having been made in this case, it is the opinion of the majority of this Court that the sale is void, and that the judge of the District Court committed no error in giving this instruction to the jury. The judgment is affirmed with costs.
