Spear v. Ditty

The opinion of the court was delivered by Phelps, J. The defendant claims title to the demanded premises, by virtue of a collector’s deed, upon a sale of the land, at ven-due, for taxes. Several exceptions are taken to the proceedings of the collector, which, it is alleged, are not in conformity with the statute. The case involves a subject of of some .difficulty. Great nicety has prevailed in relation to these titles; and, in cases of doubt, the inverted maxim seems to have obtained, Ut res majis pareat quam valeat. They are said to be stricti juris — a proceeding in invitum, &tc. This is true. Still some degree of reason and sense is to be exercised in ascertaining what right is; and although there may be no equitable consideration to aid such a title, still every stat [422] ute s^ou^ have a rational interpretation and a reasonable effect. We ought not to discard those aids, which guide us in other cases; nor, an unreasonable and senseless nicety, to defeat a solemn act of legislation. It is however admitted, that in interpreting these statutes, we should consider the title to be acquired under them as stricti juris, and should require a full and complete compliance with the requisitions of the statute. Before the title of the owner is divested by such a proceeding, we should insist upon every thing tending to the security of the owner, which is either prescribed in terms by the act — brought within it by a rational and strict construction, or which, in the nature of the transaction, is necessary to give ample effect to every safeguard which the legislature have endeavored to throw around the subject. But it is not our duty to legislate — to create artificial and unreasonable difficulties; nor by overnice and unmeaning technicality, without any rational purpose, to convert the proceeding into an idle ceremony. It is objected to this proceeding, 1st, That the collector’s bond is insufficient, because the penal sum is not equal to double the original amount of the tax. It is difficult to conceive how this irregularity, if it be such, can have any reasonable bearing upon the rights of the plaintiff. The object of this bond is not the security of the land-owner against an illegal enforcement of the tax, but it is to ensure a proper accountability for the tax, after it is collected. It is not one of those safeguards, interposed between the tax-gatherer and the tax-payer, but has reference rather to the public interest, in the due accountability for, and expenditure of the tax. When this object is effected, the purpose of the law is answered. Still, as the statute directs the giving a' bond, it may be well to inquire whether the terms of the statute have been legally complied with. The direction of the statute is, that the collector shall give a bond, in “ double the amount of such tax as he may be appointed to collect.” - Now this may mean, either double the original amount of the tax assessed upon the town, or it may mean double the amount due from delinquent land-owners, at the time when the tax-bill is committed to the collector for collection. If it mean the former,-then the bond in question is insufficient; but if the latter, the bond is admitted on all hands to conform to the statute. The course of proceeding directed by the statute is this : The committee, in the first instance, assess the tax; — they then publish a notice to the proprietors of the township, to work out their taxes within a given time, as directed by the statute : in case they make [423] default, it is then the duty of the committee to make out a rate-bill against the delinquent proprietors, and deliver the same to the collector for collection. Before he acts, he is required to execute a bond in “ double the amount of such tax as he is appointed to collect.” This bond is taken by the committee, who of course determine the amount in which it shall be given. Now it is to be observed, that the collector is not appointed to collect the whole amount of the tax originally, but such part only as may remain unsatisfied to the committee, whose duty it is to superintend the expenditure in the first instance. The amount of the tax which he is appointed to collect, is the amount of the rate-bill committed to him for that purpose. This amount is ascertained by the committee, and it is for this reason, probably, that the bond is required to be taken by them. It was probably the intention of the legislature to require a security in double the sum which might come to the collector’s hands, and we see no reason for including in the security a sum which the law supposes is paid, before he is called upon to act, and for which he can, in no event, be responsible. We are therefore of opinion, that the amount of the tax-bill delivered to the collector is the proper criterion. If it were otherwise, still the act in this particular is directory merely. It is necessary so to treat it, in order to carry into effect the intention of the legislature. No court would pronounce a bond of this kind void, in a suit upon it, against a delinquent collector, because the penalty might fall short of the precise sum required by the law. And if the bond be a valid and effectual security against the collector, it would be absurd to hold, that he is not qualified in this particular to act. 2dly. It is objected, that it does not appear, from the record of the collector’s proceedings, that the vendue was held at the precise time and place stated in the advertisement. It appears however, to have been within the town, and upon the day specified ; and this, in our opinion, is sufficient, inasmuch as no ground is furnished by the case, for presuming an irregularity in this respect. It is said that no presumption is made in favor of such a title.— It is true that no essential requisite will be presumed ; but, to a certain extent, presumptions may, and must be made ; — otherwise we are driven to forced and violent presumptions the other way, which are not to be made. The return however refers to the advertisement, which implies that the sale was had agreeably to the notice. 3dly. Another objection is, that the town clerk has made no [424] certificate of the numbers and volumes of the different papers in which the several advertisements of the committee and collector were published. No certificate of this kind is required by law.— The statute provides that “ the town clerk shall record the advertisements at length, and the title, volume, number, and date of the papers in which they were inserted,” fee. This is done. All these particulars appear of record, as required. 4tbly. It is further objected, that no rate-bill appears of record. The rate-bill is not necessary to be recorded. It was indeed necessary that a rate-bill should exist; but this might be proved by-production of the bill itself. For aught we know, it was done ; as no question of that kind is presented in the exceptions. The question before us is, whether the copy of record was admissible ; and we hold that it was not necessary, for this purpose, that the rate-bill should appear of record. Upon the whole, we are satisfied that the county court erred in rejecting the evidence offered. Their judgment must therefore be reversed, and the cause remanded.