Evening journal., 1922-03-11
Special School Tax Election Ca,7nont District Upheld by Court

The only ground upon which Il Is
contended the court may retain juris- /
diction in the pending case Is that
the tax in question is a lien on real
estate and being illegal constitutes
cloud on the complainants title. AS
suming the tax 10 be Illegal. (the cor
rectness OF which assumption I have
in the first portion OF this opinion
rcjected) the question then is; Is a.
a lien on real estate? II Il Is. then
In view OF the decision In Murphy v.
city OF Wilmington. supra, and Cats
" Town OF smyrna, supra. the court
would have jurisdiction. because the
alleged illegalty Of the tax is not
apparent anywhere In the proceed
ings authorizing IL.
Is. then. the tax levied under Sec
tion 50 OF the school law lien on
real estate? II Is well settled that
taxes do not constitute a lien on the
assessed property unless expressly
made 80 by statute. In re Lord. &C,
Chemical Co. Del Ch. GAS. a All.
775. Morrow v. Dows 2s y. j. Eq.
l59: Linn v. O'Neil. 55 y. ]. L. SIS;
Quimby v. Wood. 10 r. 1. 57i. All.
14s: Tompkins " Little Rock sc.
CO.. rs Fed 344. Atl i49: Tompklns
v. Little Rock. &c. Co. rs Fed. 344:
Cooley on Taxation. card ed s65.
citing cases
Nowhere in any OF the provisions
OF the school law Is II provided that
the taxes provided for by Section 54
shall constitute a lien on the prop
erty assessed. Under the authorities
just cited. the tax In question Ia not
lien on complainants real estate.
This is 80 unless there .is force in
the argument Of the solicitors for the
complainant that by clear lmplica-
/ ton derived from other provisions OF
the school law. the tax In question Is
made a lien. Before stating the rea-
sons advanced In support OF this ar
gument. Il should be said that liens
I for taxes are not 10 be erected boy
presumptions. II the Legislature
means a tax 20 be a lien. II can very
/ easily say so. II has frequently said
so with respect TO other taxes. II
the doctrine that the existence of
liens may be gathered from infer
ence and Implication is TO be accept.
ed, then titles TO property are IN dan
ger OF being envolved In doubt. Those
who contemplate purchasing real es.
tate would negotiate In fear and take
title with apprehension. for where
liens may arise by construction anf
inference, there could not be tha
degree OF assurance which is es
sential In dealings among men re-
specting the sale and transfer OF rea
property. I do not say that In nd
case can there he a lien created b,
necessary Implication. There ma.
be. But n so. It must be cas-
where the Implication is 30 plain a
to be tantamount 10 positive lang
uage. Certainly the presumption
should be against the lien where
IS sought TO establish u by Inference
Now. In the case before me. IN
complainant argues that the tax &
question is made a lien by necessar
, inference. cannot agree with N
contention. II Is said that the al
, in Section 81 provides that "in co
: lecting the said tax. he (the collie
: tori shall proceed In the manner ar
> have all the powers Of the collocti
Of county taxes. County taxes Al
. specifically made a lien on real esia
for two years. and the collectl
may proceed against the re-
, estate. Hence Il Is argued N
J school tax collector may likewise 81
force a lien against the assesse
Z real estate. II not, how can d
Z proceed IN the manner and have a
r the powers OF the county tax cole,
p tor? The county tax collector ma
y sue the taxable. seek 10 make m
3 judgment obtained out OF persona
! property or real estate general
e held by the taxable. and In som
5 cases attach the body OF the taxahl,
e He may also enforce the lien by pro
3 ceedlng TO sell the assessed land al
y ter complying with the provision
e specially regulating this procedure
I This being so. the clause OF th
, school law authorizing the collectC
7 OF school tax TO proceed In the mar
g ner and have the powers OF a cour
r ty tax collector. means this. that D
Is 20 employ such remedies as al
81 adequate 20 the school tax situation
% II the school tax we're declared Z
- the statute 20 be a lien on the asses
ed property as is the case with n
u county tax. then the school tax co
d 'loctor would by reason OF the clau,
referred to have the power similar
that OF a county tax collector 10 81
e force the lien. But there being u
@ such statutory lien for a school "a
4 this particular power OF a count
r lax collector has nothing under n
] school law upon which 10 operate.
n need not discuss this point furtl
10 er. II Is very clear TO me that n
!. argument advanced cannot serve
p attach 10 the school tax assessed n
n feature OF lien.
- There being no lien created by n
% law upon the lands OF the complain
d aint for the tax in question. the
10 can be no question OF a cloud on h
n title.
j. on both grounds urged by the d
e fendant, the motion to discharge a
rule should be granted. and the d