Gachet v. McCall

PETERS, C. J. [After stating the facts as above.] 1. It is unnecessary to go into any question arising out of the improper levy or collection of the taxes assessed upon the plaintiff’s lands, or the interest or penalties thereon, as the plaintiff paid these without protest or objection. They were, therefore, paid willingly, with a full knowledge of all the facts on the part of the plaintiff. Such a payment to the tax-collector, who does not receive or hold the money thus obtained for his own use, does not subject him to a recovery, after he has paid the taxes, interest, and penalties to the county and state officers entitled to receive them, and before he is notified by the claimant not to do so. Hall v. Shultz, 4 John. 240; Hearsey v. Pruyin, 7 John. 179; Crutchfield v. Wood, 16 Ala. 702; 1 Chitt. Pl. (100) et seq. The tax-collector is but an agent of the government. There is no pretence that he acted in bad faith, and in wilful disregard of his duty. The county and the State have received the sums which were collected for their use. [310] In this they have adopted their agent’s acts. It is to these principals that the plaintiff should resort for redress, if they have possession of his money without authority of law. It is not to be presumed that the State or the county will hesitate to do what the laws of the land command should be done. Very clearly, the tax-collector could not use the power of his office to extort the payment of illegal taxes, or illegal fees, for himself, or for the tax-collector. Riply v. Gelson, 9 John. 201; Clinton v. Strong, 9 John. 270; Prior v. Craig, 5 Serg. & R. 48; 34 Ala. 407. But, where he has acted in good faith, and on a construction of a statute that admits of doubt as to the proper fees to be charged and collected, not for himself, but for the assessor, the tax-payer may waive his right to withhold an improper fee for the assessor, and promise and agree to pay it. The-prOof shows that there was such a promise and agreement in this case, and that the payment made to the tax-collector was so made “ under ” this promise and agreement. If this was so, and so the proof states it, then the compulsion was the voluntary promise and agreement of the plaintiff, and not the force of official authority exerted by the tax-collector in violation of the law. The plaintiff paid the fees now objected to, not because he acted under illegal compulsion, and unwillingly paid them, but because he had agreed to pay, and acted under his agreement. The protest at the time of payment cannot, in such a case, be construed to contradict the agreement under which the plaintiff admits he made the payment. It merely meant, that if the plaintiff had not made the promise, he would not have acted under it. This gives some force to both these expressions, without the one being held to contradict the other. The jury, ’then, had a right to look to the agreement under which the fees were paid, as evidence of a gratuitous and voluntary payment. If it was intended as a voluntary payment, then the plaintiff could not recover the money thus paid in this form of action. 6 T. R. 681 ;• 3 Taunt. 264; 1 Camp. 124; 34 Ala. 407, supra. There is no evidence that the promise and agreement, under which the fees were paid, were extorted. They were wholly voluntary, and of the plaintiff’s own proposal. It would be denying all force to this portion of the proof, to say that the promise and agreement were made under compulsion, and that the payment of the fees was not made under them. 2. In an advertisement of notice of the sale of lands for a failure to paj^ taxes, the description of the lands to be sold by the tax-collector, under the act of December 31, 1868, entitled “ Ah act to establish revenue laws for the State of Alabama,” should be made as near as possible in the manner directed by that law. “ It is required that such advertisement shall state [311] the time and place of the sale, and contain a description of the several parcels of real property to be sold, as the same are recorded on the tax-list; the amount of the tax for each year; and the names of the owners when known, or persons, if any, to whom taxed. The collector is directed to charge and collect, in addition, interest, forfeiture, and costs, on each tract, (and) the price of advertising the same for sale.” Parnph. Acts 1868, pp. 297, 317, § 63. It is evident from this, that the tax-collector should, as a general rule, use the same descriptions of the lands in his advertisement, that are found “ recorded on the tax-list ” made by the assessor. If the tract is as large as an entire section, in one body, and all of equal value, the description should be by section, township, and range, with the proper numbers affixed to each of these particulars. In such case, the sectional description is enough. But, as the sections are differently numbered, each section should be included in a tract by itself, and divided only when the parts are differently valued; those parts of the same values being included in the same parcel. The divisions and subdivisions of the section should be described in like manner. Pamph. Acts 1868, supra., p. 811, §§ 37, 38; lb. p. 310, § 33; lb. p. 306,_ §19. But it is sufficient if the tax-collector follows the descriptions entered in his list and recorded by the assessor. Here, the proof shows that the assessment, as entered of record by the assessor, was by the section only, and not by the subdivision of the section. There were three sections, and three entries on the book of the assessment. The advertisement should have followed this manner of description. Then, there should have been but three assessment fees allowed the assessor, and a fee for advertising three tracts, and no more. Then, the charges for these services demanded and paid were too high and illegal. But, for the reasons above shown, the plaintiff waived his right to object to them, and consented to pay them “ under his promise and agreement ” shown in the proof as above. It follows from the above and foregoing, that the descriptions of the lands in the tax-collector’s advertisement of notice of sale for unpaid taxes should follow those used in the recorded list of the assessment. These descriptions must be the guides of the tax-collector. He has no warrant to increase the costs beyond this, either for fees to the assessor, or to the newspaper publisher or owner, for the advertisement. This is the limit which the law prescribes ; and as costs are penal, it cannot be enlarged by construction. The recommendation of the grand jury to the judge of probate, to have lists of the taxable lands of the county made out in subdivisions of the sections for the convenience of the people of the county, though very proper in itself, can have no influence in this case, except to aid in show [312] ing that the tax-collector did not intend to act in bad faith in the manner adopted by him in describing the lands in his advertisement. This action of the authorities of the county could not change the duties of the tax-collector, or give him authority to depart from the requirements of the revenue law under which he was acting. 3. No double taxes or forfeitures can be imposed by the assessor, and collected by tbe tax-collector, except in strict conformity with the law. Such laws are penal, and must be strictly construed. The language of the statute is this: “ Sec. 35. Be it enacted, that having failed to procure from any delinquent a list of taxable property, before the first day of June, the assessor shall ascertain, from inquiry or otherwise, the property and other items of taxation, upon which such person is liable to be taxed, to the best of his information and judgment, and assess a double tax upon the same.” Pamph. Act 1868, p. 310, § 35. The proof does not show that any such steps were taken to fix the tax in this case at double rates, as above presented. Nor does it show, indeed, that any double tax was levied, but only that the lands in controversy were assessed and entered on the assessor’s list of assessments to “ owner unknown.” A demand or notice should be given the tax-payer, as required by section 34 of the act before he is in default and liable to pay double taxes. In this case this was not done. Act, §§ 34, 35; Smith v. State, 43 Ala. 344. But this tax, whatever it may be, was paid without objection, and upon consent of the tax-payer, and cannot now be reclaimed. 4. There is no authority given in the act of December 31, 1868, above quoted, for a levy on the land of the delinquent tax-payer, and consequently, no fee for such a levy. This act directs, “ that where no personal property can be found, with reasonable search, the tax-collector shall proceed against the real estate of any delinquent tax-payer in the manner hereinafter provided.” Acts 1868, p. 315, § 54. The provisions of the act thus referred to require the tax-collector, after advertising the lands of delinquent tax-payers, as prescribed in said act, to sell the same on the first Monday in March in each year, beginning in 1869, at the court-house of the county, or, if there be no court-house, at the office of the probate judge. This is done without any levy. Acts 1868, p. 317, §§ 62, 63, 64, 65 et seq. Then, it was illegal to charge any fee for levies in such a case as this. But, for the reasons above shown, the plaintiff’s right to recover such fees was waived by his promise and agreement to pay them, as has already been declared. There is a consent on the record that the appellee may assign errors, should he choose to do so. But no such errors have been assigned; and as there are no errors assigned by the [313] appellant, of which he has any right to complain, there must be an affirmance of the judgment of the court below. The judgment of the court below is affirmed at appellant’s costs.