Sale of Lands.-Lands may be sold for the non-payment of taxes when that power is expressly given by the charter. This power when given by statute to enforce the payment of State taxes, must be strictly followed. The rules that have been given on that subject apply with greater force to municipal corporations.1 Not only is the power to be strictly pursued, but nothing is to be inferred by analogy from the power given to the State. The power of municipal corporations is separate and distinct, and very often greatly differs in municipal corporations in the same State. We must look to the powers given by the legislature to the particular county or city under consideration, for it has just such power as has been delegated, and no more. Where the charter of a city empowered the mayor and council, on the refusal of the tax-payer to pay, to issue an execution directing the sale of lands and tenements in such manner as the ordinance may direct, and the ordinance directed the marshal to sell after notice, and execute a deed for title, the marshal sold and executed the deed. After his term of office had expired, an application was made for a mandamus to his successor to put the purchaser in possession, but it was refused, on the ground that no power was given to put a purchaser in possession, and he must resort to his common-law remedy.? The provision in the general statutes that the deed given in a sale of land for public taxes shall be prima facie evidence of certain facts, does not apply to sales of lands for taxes due municipal corporations.3 The power to make the deed prima facie evidence of title or of certain facts must be expressly given in the charter. A municipal corporation cannot exercise such a power; it is only the legislature that can alter the rules of evidence." 6 The power to sell for non-payment of taxes gives no authority to sell for failure to pay a local assessment; and when the power is given to sell, the municipal corporation cannot purchase jointly with another, unless the power is expressly given. The power of sale comes from the legislature, and no ordinance of the corporation can change or modify that power. Where the legislature makes the land primarily liable to be sold, an ordinance making the personal estate primarily liable, unless the owner directs in writing the land to be sold, has no effect. When ordinances are passed relating to the exe 1 Ch. 15, 16, 17, 18, §§ 110-125. 3 Armstrong v. Shoalwater, 9 Humph. 217. 4 Bucknall v. Story, 36 Cal. 67. Sharp v. Spier, 4 Hill, 76, 92; Paine v. Spralley, 5 Kansas, 525. 'Knox v. Peterson, 20 Wisc. 247; Sprague v. Coenen, 80 Wisc. 209. 8 Thompson v. Carroll, 22 How. 422. cution of the power, and not in conflict therewith, they must be strictly complied with, and so must all the provisions of the statute on the subject.1 In examining into the validity of a corporation sale, we must first see that the power has been given by the legislature, then that all the provisions of the statute and all the ordinances of the corporation have been strictly complied with, and this compliance must appear on the face of the proceedings.2 § 141. Remedies for Erroneous Taxation.-The princip.es applicable to this subject discussed in another part of this treatise apply to municipal taxation. Where the assessors have jurisdiction of the person or property assessed, their action is judicial, and is conclusive until reversed. Where the error complained of is in the valuation of the property at too high a rate, or upon a wrong principle, or the assessment of property claimed to be exempt-for these and similar errors the assessors are not liable in an action for damages. The remedy is by an application to the tribunal provided by statute to correct such errors, and then by an appeal to the courts of general jurisdiction. It often happens that in municipal corporations no local tribunal is created with power to correct the errors of the assessors. In such cases, and where there is such a tribunal, but no provision for an appeal to the courts of general jurisdiction, the remedy is by certiorari. The practice of the courts is not uniform as to the relief which may be given under this proceeding. Originally this writ was used principally in criminal cases to bring the record of the inferior tribunal to the Court of King's Bench, where any error committed was corrected, and the matter was proceeded in finally in the latter court. But it is now used generally to correct errors of any inferior tribunal in the courts of general jurisdiction. It commands the record to be brought up that it may be inspected. It is conceded that if it appears from the record that the inferior tribunal has exceeded its jurisdiction, such questions may be considered and corrected in this mode; or if the assessor has not kept within the limits prescribed by the statute, or has violated any principle of common law, such questions may be reviewed and the errors corrected. But it is claimed by Judge Cooley that the writ cannot be used to correct any error or irregularity in the proceedings of the tax officers which is not of a nature to de 1 Rayburn v. Kuhl, 10 Iowa, 92; Pope ". Headen, 5 Ala. 433; Ronkendorf v. Taylor, 4 Pet. 349; Corporation of Washington v. Pratt, 8 Wheat. 686; Mason v. Fearson, 9 How. 248. 2 Chicago v. Wright, 32 Ill. 192. * See ante, Ch. 13, §§ 102-104. Blackstone's Com. Sharswood's ed. vol. 2, pp. 320, 321, and note. prive them of jurisdiction. If this be true, then the writ could not be used to correct errors in valuation, when the valuation was made on an erroneous principle, as often happens in the case of corporations, or errors in assessing property exempt from taxation, when the party did not claim that all his property was exempt, so that the assessors had jurisdiction, nor could the merits of the question as to the value of property be examined. The cases examined and cited in a former chapter support the view that in such cases the remedy is by writ of certiorari. The cases cited by Judge Cooley, I think, do not sustain his proposition. All of them, except the case of People v. Supervisors, are cases in which the party had a remedy by appeal, and in such cases it is not claimed that relief can be given on the writ of certiorari. This writ is only used where there is no other remedy at law; but where there is no remedy to correct the errors by application to an inferior tribunal, or no appeal allowed from such inferior tribunal, then it is claimed that it is proper to correct such errors by a writ of certiorari.3 2 On a writ of certiorari, the court does not look beyond the record. It looks to the return of the inferior tribunal for the facts, but where that tribunal acts upon written evidence, such evidence is a part of the record, and is required to be brought up as a part of the record, but nothing dehors the record is brought up. The general tenor of the decisions is, that on such a writ the court will not look into questions of fact, but will only determine whether the court has erred upon the facts appearing in the record; yet, if upon the hearing of the petition for the writ, extrinsic evidence is introduced in support of the decision below, to show that substantial justice does not require the proceedings to be quashed, then like evidence may be introduced by the petitioner on the same point only. The granting of the writ is not a matter of right; it is a matter of discretion, similar to the granting of an injunction. It was refused when the object was to review the proceedings in establishing a school district after a lapse of fifteen months, when the district had been organized, and was in the exercise of its corporate duties. 1 Cooley on Taxation, p. 533. 2 1 Hill, 195. Like an 3 Newburyport v. Co. Com'rs, 12 Metc. 211; Ohio v. Lawrence, 27 Ill. 50; People v. Supervisors of Madison Co. 51 N. Y. 442; People ex rel. Yawger v. Allen et al. 52 N. Y. 538; People ex rel. S. & U. N. R. R. Co. v. Betts, 55 N. Y. 600; 2 Dillon on Municipal Corps. 739-741. Phillips v. The City of Stevens Point, 25 Wisc. 594; The New York cases cited, ante, § 102; Jackson v. People, 9 Mich. 111; Com'rs . Supervisors of Carthage, 27 III. 140; Carroll . Mayor, 12 Ala. 173; Charlestown v. Co. Com'rs, 109 Mass. 270; 2 Dillon on Municipal Corp§ 742. Farmington River Water Power Co. v. Co. Com'rs, 112 Mass. 206. 'Fractional School District v. The Joint Board, 27 Mich. 3. injunction, if improvidently granted, it may be dismissed, without an examination on its merits.1 Where a discretion is vested in the local tribunal or the ministerial officer, the writ does not lie to control such discretion; it only lies to correct error in law or fact.2 The cases cited in this section and § 102, are cases where the writ was used to correct errors in the assessment of the person or property of a tax-payer, and the tax-payer sought to have the error corrected as to his individual assessment. This kind of error may be corrected at any time, even after the roll passes into the hands of the collector. The effect of the writ is not to stay the collection of the tax. It must be paid under protest, but if there be error in the assessment, then to the extent of that error and the amount of the tax paid erroneously, the municipal corporation will have in its treasury money of the tax-payer to which it is not entitled, and for which it is liable in an action for money had and received. This is well illustrated by the case of Bank of the Commonwealth v. The Mayor, in which the bank claimed that the amount of its capital invested in United States bonds was exempt from taxation. The question was raised by certiorari, and the courts of New York decided against the bank. On appeal to the Supreme Court of the United States, the decision was reversed and the exemption allowed, but the proceedings of the tax officers were not stayed, and the bank was compelled to pay the tax. There is another class of cases in which this writ may be used, where the tax-payer claims that the assessment is not correct on account of the erroneous taxation of some other person, and seeks to stay the collection of the tax until the error is corrected. In such cases the application should be made before the roll passes out of the hands of the assessor. The writ is also used where a tax-payer claims that the municipal authorities have no power to levy a tax of a designated character, or for a specified purpose. In all such cases the application should be in the preliminary stages of the assessment, and before the roll passes into the hands of the collector. But the writ is rarely used for this purpose, except in New Jersey, the usual remedy in such cases being an injunction against the municipal authorities. In New Jersey, the writ is used to test the validity of acts of mu 1 Susquehanna Bank v. Supervisors of Broome, 25 N. Y. 312; Matter of Landis, 9 Mich. 324. 2 Supervisors of Midland v. Auditor General, 27 Mich. 165; Smith v. Supervisors of Jones Co. 30 Iowa, 531; Benton v. Taylor, 46 Ala. 38; Dwight v. Springfield, 4 Gray, 107. 3 43 N. Y. 185. 4 Bank of Commerce v. New York City, 2 Black, 620. 5 People v. Delaney, 49 N. Y. 655. * Dillon on Municipal Corp. § 741; Libby" West St. Paul, 14 Minn. 248. nicipal corporations, whether legislative, ministerial or judicial,1 and in matters of taxation it is established in practice and recognized by the legislature of the State, that to determine legality of the assessment, the writ will be directed to the officer who has in his hands the duplicate roll for collection. In other States the writ is only used to correct errors of those who exercise functions that are quasi judicial, as assessors, boards of review, &c., but in this State it is used for correcting errors even in the precept under which the collector is acting. In the case first cited, it was used after the tax had been collected by distress and sale. All questions of mere valuation are decided by the commissioners of appeal, but when any legal questions are involved in the assessment, certiorari is the remedy in that State. While the practice may vary in different States, the general proposition may be considered correct, that where there is no other remedy, all questions as to the principles on which an assessment is made, whether arising under the statute law of the State, or depending on the principles of the common law, either as to what persons and property are liable to assessment, as to the basis of valuation, or the amount of valuation, may be decided on a writ of certiorari issued by courts of common law of general jurisdiction to the assessors or other local tribunal. Such courts will not only decide questions of law, but also of fact, arising upon the record, treating the findings of the inferior tribunal as analogous to the verdict of a jury, and not reversing them, except in cases where they have plainly erred. When the errors are corrected, if it be before the roll has passed into the hands of the collector, the remedy is complete; but after that time the correction of the error does not stay the collection of the tax. It must be paid, and the party must resort to his action for money had and received to bis use by the municipal corporation. § 142. Remedies for Illegal Taxation.—In the previous section we have considered the remedies of tax-payers where the tax officers had jurisdiction, so that their acts were not void, but were simply erroneous. We now consider those cases where their acts are void, because they either had no jurisdiction to act at all, or have exceeded their authority in the particular case. In such cases, as we have seen in § 104, the assessors are mere trespassers, and are liable in an action for damages, and if the illegality be one that appears on the face of 1 Camden v. Mulford, 2 Dutch. 49; Carron v. Martin, Ib. 594; State v. Hudson, 32 N. J. Law, 365; State v. Water Commissioners, 1 Vroom, 247. State v. Clothier, 30 N. J. Law, 351; State v. McClurg, 27 N. J. Law, 253; State v. Newark, 27 N. J. Law, 185; Nixon's Digest, pp. 102–105, 946, and notes as to certiorari. |