Nebraska advertiser., 1868-06-18


a. That the tax book was not made
out nor delivered to the Collector, IN
the manner nor At the time prescribed
By law.
5. That the Collector did not proceed
with the collection of such tax book, nor
give notice of the time and place, where
he would receive the taxes assessed TOT
said year, as acquired by law.
6. That the delinquent list was not
made out and returned by the Collector
at the time and in the manner prescribed
by law.
z. That The Collector did not give,
nor was the judgment %renderd, upon
proper notice of his application for judg,.
ment against said land for the taxes and
Ecosts due thereon.
8 That no precept Of the sale Of said
land had been issued by the clerks.
8. That the land was not sold at the
Court house door, nor into the smallest
Subdivisions into which it could be divided,
but was sold in gross. as
All this evidence was excluded for
the reason that the tax deed was held to
be conclusive evidence hat everything
had been done which the law required
except the three things above specified
by way of exception in the act itself. An
instruction was given for the plaintiff to
the same effect. Instretions of a contrary
tenor was refused for the defendant
and among the rest one of this effect:
That the act aforesaid, as far as itat-
tempts to make the tax deed conclusive
evidence as therein recited, operated to
deprive the citizen of his property with
out due process of law, and to take pri-
vate property for public use without just
compensation. 1o sgai y
There can be no doubt that the State
has a sovereign power of taxation over
all the State, which is not exempted
from State taxation by the laws of the
United States and it has power to en-
force the collection Of taxes assessed
and levied according to law by a sale of
the property. Property sold for taxes
in the valid exercise of this power can
not be said to be taken from the owner
WithOt the process oflaw. But the Leg.
islature, in the exercise of this power
cannot enact a law which shall have
effect simply to take the property Of A.
and give it to B. There are certain es-
sential requisites of the power which are
indispensable, in order to divest the title
of the owner and transfer it to another.
In minor matters regarding the mode
and manner of exercising the power,
there is no doubt that the Legislature
may alter rules Of svideee, or declare
what effect certain facts, or documents,
shall have, when produced in evidence,
but in the nature of things there must be
a limit 10 this right. There is abundant
authority to the effect that the Legisla-
ture may make the deed of a public off.
icer prima facie evidence of title, but
they cannot make It conclusive evidence as
to matters which are vitality essential to
any valid exercise whatever of the taxing
power
In Allen VS.. Armstrong (16 Iowa,
508), Dillon ]. lays down the rule in
terms to which we see no sound object
ion, thus "We state the principle which
must be legally and logically true, in
this wise 4: If any given step or matter
in the exercise of the power to tax las
for example the fact of a levy by the
proper authority Is so indispensable that
without its performance no tax can be
raised, then that step or matter, what
ever it may be, cannot be dispensed with,
and with respect to that the owner can.
not be concluded from showing the truth
by a mere Legislative declaration to that
effect"
Applying this rule, we are of the
opinion that evidence was admissible
for the purpose of showing that the land
had not been assessed for the year
1863 in the name of any tenant or &C.
cupant of said land. It is the owner
who is taxed, and not the land. He is
taxed in respect of his title or ownership
in the land, and taxation Is to be in pro-
portion to the value of the property. Il
is the owner who is to pay the
tax, and i. is his title or interest in the
land which is TO be transferred by a sale,
if any title can pass. A deed convey
ing the title under proceedings against
person had no title or interest whatever
in the land, and was in no manner the
representative of the owner, If any title
could pass, would have the effect to take
the property of one man, without du4
process of law against him, and give i.
to another. An examin alton of the second
article of this same act (S7--29) will
show that the act itself recognizes the
necessity that the assessment and other
proceedings under the law shall be d.
rected against the owner of the property.
The land is Tin all cases to be assessed
to the person appearing to the owner
at the time of the assessment" (section
10Y; and when "the name of the owner
or claimant cannot be ascertained, such
land shall be taxed by the numbers, and
in the name of the original owner, !" and
shall "be sold and conveyed, by their
numbers and in the name of the original
owner, without reference to the present
owners or claimants" section 90 Il.
is unnecessary for US to say further here
what might be the effect of this clause,
in any case : but we may go so far as to
declare now that on assessment in the
name of a person who neither was, not
ever had been, the owner of the properly,
who'd be an utterly void assessment,
{ Whitner VS.. Thomas, % N. Y, 28l.
The assessors have no jurisdiction to
assess property otherwise then as the
statute prescribes, and a void assessment
which is equivalent to no assessment at
all against the owner cannot be made
the foundation of a sale and conveyance
of his land, even ~bylegislaliue enactment,
A valid assessment is an essential pre-.