People v. Waterman

By the Court, Sawyer, J.: This is an action to recover delinquent taxes, brought in pursuance of the Act of May 17th, 1861, entitled “An Act to legalize and provide for the collection of delinquent taxes in the counties of this State.” At the trial the District Attorney at first introduced the delinquent tax lists, but subsequently withdrew them. The testimony was then confined to the issue as to the ability of the Tax Collector “ to find, seize or sell property belonging to the delinquent." The defendant also offered the delinquent list to show that there was no tax at all levied against the defendant, but it was ruled out on objection of the District Attorney. The case was finally submitted without any evidence except as to the inability to find property as before stated; and the Court found for the plaintiff and rendered judgment in accordance with the findings.

The Court and District Attorney were evidently under the impression that no evidence was required, under the statute, to show that a tax had been levied. It is not surprising that embarrassment in construing the statute on this point should arise, for it is provided in section two, that “ the defendant shall not be allowed to set up, ór show, any informality in the levy, or assessment, as a defense, such defendant being allowed only to plead—First, that the taxes had been paid on or before suit; or—Second, that he had not the property mentioned in the complaint at the time of the assessment, and he has never been liable to pay said taxes.” (Laws 1861, p. 471, Sec. 2.) Yet the very next section provides, that “ the delinquent tax lists for said fiscal yéars, duly certified by the proper officers, shall be delivered to the District Attorney, and the said delinquent lists, or the original, or duplicate assessment rolls, or a copy of any entry therein, duly certified, showing unpaid taxes against a person or property, shall be evidence in any [414]Court to prove the delinquency, property assessed, the amount of taxes due and unpaid, and that all the forms of law in relation to the levy and assessment of such taxes, have been complied with.” (Ib. Sec. 3.) The complaint alleges the assessment, and the answer takes issue by denying the averments. It is said, however, that the defendant under the Act was not authorized to take issue upon these averments in his answer, and, as he could not raise the issue, no proof was required to establish the truth of the allegations of the complaint. Upon the theory of the respondent, it is only necessary to allege a cause of action, and, as no issue can be taken, no proof can be required, and a judgment must follow as a matter of course on the complaint, unless the defendant can set up one of the two matters specified. On this theory, the plaintiff in this case might just as well have omitted his evidence on the question of the ability of the Tax Collector to find property, for the averment of the complaint on this point could no more be controverted than any other essential averment. The averment proved itself, and no evidence whatever was required on the part of the people. It" is not easy to determine exactly what the Legislature intended by the provisions of the statute cited. It was certainly contemplated that testimony would in some way be required on the trial of a tax suit, otherwise why the provision of the third section that the delinquent list shall be “evidence in any Court to prove” the facts therein enumerated—the very facts required to be alleged, and upon which, it is claimed, that defendant is not permitted to take issue ? Unless it was contemplated that the plaintiff might be required to prove these facts to support the essential averments of the complaint in a tax suit, we can conceive of no purpose which the provision of the section can serve, and the section is useless—a collection of unnecessary words. Of course, if a valid judgment is once obtained, it becomes a lien upon the land which nobody can avoid, and there would be no occasion to go behind such valid judgment to sustain a sale under it, or to protect the rights of any party resting upon such judgment. If, then, a valid judgment for the taxes can