Moore v. Patch

Baldwin, J., delivered the opinion of the Court—Field, J., concurring.

The plaintiff below enjoined the Collector from proceeding to sell his lot for taxes. The ground is that they are illegal. The plaintiff charges that the delinquent list, published by defendant in the fall of 1857, and under the Revenue Act of that year, did not contain the name and property of plaintiff, as required by the fourteenth and fifteenth sections of that Act. An Act was passed by the Legislature in 1858, (Session Acts, p. 4). This Act confirms the roll in the hands of the Collector, and declares it legal and binding, as a valid Tax List, and in all respects sufficient in law, as the duplicate assessment of said county and city, for the fiscal year ending June 30th, 1858, and the same shall be a sufficient warrant in the hands of the Tax Collector, to authorize and empower him to collect the taxes therein assessed.

It is argued for the respondent that this Act, supposing it to cover the case, is unconstitutional. This idea seems to be founded on the supposition that the steps made necessary by the Act of 1857, are conditions precedent to vesting of the tax, and that no obligation to pay the taxes existed, except by force of these proceedings. This, however, is a mistake. The tax is a debt due from the property-holder to the State, and these proceedings by publication and the like, are merely modes adopted by the Legislature to collect them. If property be omitted from the list, this does not discharge the property-holder, but the defect may be remedied by the Legislature. The irregularities, of whatever character, occurring under the Act of 1857, were intended to be cured by the Act of 1858, and we think, if the provisions of the latter Act have been fully complied with, the property might be fully subjected to the payment of the tax.

[271]The objection that the Act is not uniform in its operation, is without force. It is not a general law, but a special Act, made for a given state of facts. There is no necessity for it, except for the particular occasion, and to remedy the particular evil at which it is aimed, and we think it effectual for that purpose.

The more serious objection, however, is urged, that the delinquent tax list required to be published by the Act of 1857, was never published, and that this provision is not repealed by the Act of 1858. The third section of the Act of 1858, is as follows : “ The Tax Collector shall, as soon as may be after receiving back the duplicate assessment list, as provided in the last section, give notice by advertisement, to be published by five insertions in two newspapers published in said city and county, that he will proceed to collect the delinquent taxes due on said list; and at the expiration of ten days after the publication of said advertisement, he shall proceed to sell the real estate on which the taxes remain delinquent, in the manner provided in an Act entitled ‘An Act to provide Revenue for the support of the Government of this State,’ approved April twenty-ninth, eighteen hundred and fifty-seven ; and he shall, in like manner, proceed to collect any taxes which may remain due upon personal property.”