Year: 1860

with the five per cent. added, are void, and
that no tax deed under the revenue law of
1858, will entitIe the holder to recover in
an action OF ejectment. The case came up
in Amador county on suit brought by the
purchaser to obtain possession of ranch
that had been sold for taxes. The defend
and Rled demurrer, giving four distinct
reasons why the complaint should be dis
missed, the second Of which was "that the
imposing of five per cent. upon the amount
due for taxes, if not paid by certain date,
is unconstitutional, aud void" Judge
Hardy held that this point was we'll taken,
and said


The summary enforcement of the power Of
taxation is against the spirit Of the constitution
which secures the citizen in the enjoyment of
his property except when deprived OF 1t by due
process of law. In fact, it can only be defend
| ed on the score of imperious necessity, and TO
use the language of the Supreme Court of Mis-
souri,, "Ilhis very necessity begets another ne
cessity, that in the execution of such power
the law shall be strictly and punctiliously COM
piled with in all its requirements; besides, so
cautious are the Courts in confning the taxing
power within the bounds of State necessity,
| that they will never permit the enforcement OF
penalty or double tax in a summary manner
under the vague and indefinite pretence of tax
alton. Taxation includes the power to collect
| in summary mode the amount levied from
the necessity of the case. This arbitrary but
| indispensable power must be used only to the
extent absolutely demanded by the public ne
cessities, and never abused by applying it to
the purposes OF penal enactments, and under
the guise of taxation, TO impose penalties which
are to be enforced without recourse to the or
dinary tribunals.


"The Constitution protects the citizen from
all judgments against his person or property,
otherwise than by regular jury trial as here
tofore accustomed. Now, the only difficulty in
enforcing this guarantee is to distinguish be-
tween tax and penalty That is a tax which
bears equally upon the whole community, but
| that which is added to the burden of one citi-
izen because of his failure to list his land for
taxation called booming, and the double and
triple tax levied upon him by reason of his neg
lect to pay his tax when due, can in no proper
sense be termed taxes; they are in fact penal
ties"


In South Carolina, it has been held that
where a penalty has been affixed for non-pay
ment of taxes, that it can only be enforced by
the verdict of Jury, and that the tax collector
cannot assess the per centage for non-payment
by certain day. Burger VS.. Carter, l Nc
Mullen, law rep. 420. Indeed can scarcely
conceive of more effectual means which the
Legislature could have adopted to prevent the
collection of taxes than by imposing this five
per cent penalty for non-payment by certain
day.


am satisfied that the sale for taxes, ''in-
cluding this five per cent" was void, and that
no title could have passed. .


From the views expressed it follows that the
demurrer must be sustained, and it is the Opin-
ion of the Court that no tax deed under the rev.
enue law of 1858, will entitle the holder to re-
cover in an action of ejectment it is wholly un-
necessary to amend the complaint, as the de-
feet cannot be cured.


This portion of the decision, 1t will be
seen is mostly an extract from the decision
of the Supreme Court of Missouri and ap-
piled to the revenue law of this State, the
reasoning. to our mind, is far from conclu-
sive. The case will doubtless be carried up
to the Supreme Court, and the probability
is. that Judge Hardy's opinion in regard to
the five per cent penalty will be overruled
The Supreme Court have already intimated
that Sieritf's deed for property sold for
taxes would be held valid under our reve.
nue. law--provided the property was listed,
described, advertised and sold, 10 accord
ance with the provisions of the law-and
cautioned property holders against allow
ing their property to ee sold for taxes.


Experience has shown that the addition
of five per cent. is the most effeolual means
that can be adopted to induce property
holders to pay up iheir taxes, Judge Hardy
to the contrary, notwithstanding. If his
decision should be confirmed. the State will
be reduced to the necessity of maintaining
q suit against every delinquent tax payer,
which would cost in the end, more than all
the taxes collected.


1t is to be hoped that the question may be
speedily settled by the Supreme Court, so
that the revenue law may be remoddled by
the next Legislature, II decided to be un-
constitutional. In the meantime, we should
advise property holders not to allow their
property to be sold for taxes on the strength
'udge Hardy's opinion.


LET NEVADA FLOURISH