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2. Taxes can only be levied for public purposes.
3. No one species of property shall be taxed higher than another of equal value; and in order to carry out this, new assessments are required to be made from time to time.
Under these restrictions much is left to the wisdom and prudence of the Legislature; and it has now become a serious question of debate whether it would not have been prudent to have inserted in the State Constitution a positive inhibition upon the Legislature exceeding under any circumstances, a maximum rate.
All the foregoing restrictions may be literally complied with, and yet the citizens be greatly imposed upon. The fact that the legislator is to be elected annually or bi-ennially, is no sufficient guarantee that he will reasonably do his duty. The potency of immense wealth, whether the same has been acquired honestly or by corrupt nieans, the bitterness of political parties may each be relied upon to relieve the character and secure future prosperity. The penalty put upon public and official corruption is entirely too low to secure honest public servants; besides, the means and facilities for an exposure are too meagre and ineffectual to excite the effort, and two to one the honest effort will but bring disgrace and ruin upon its author. A man may know of a piece of roguery, and yet fear the consequences of an effort to expose it, particularly before a Legislature. The alienation of land, against the will of the owner at common law, was regarded with great jealousy, and the courts usually required the strictest compliance with all the prerequisites and conditions of the sales; and this principle has been continually appealed to, and with great success, in cases involving the question of tax titles.
The chief difficulty connected with the levy and collection of taxes in most if not all the States, as a reference to the adjudicated cases will prove, is traceable to the ignorance and incapacity of the persons entrusted with it. Assessors should be men of more than ordinary intelligence, and should have two features of character in a degree commanding the respect and confidence of the community. One of which should be a thorough knowledge of values of the land to be assessed, actually and relatively; the other, sufficient scholarship or intelligence to know what character of description brings the land within the demands of the statute.
The listing or assessment, as it is sometimes termed, is the basis of the entire proceeding; and just here most of the errors are committed, which, after great costs and expenses, eventually invalidate the sales. And it does seem that the Legislature for many years, has been doing its utmost to legislate down sufficiently low to meet and atone for the incapacity of its assessors. It has been playing the role of an English lawyer, who was drinking an unusual quantity of beer just before commencing a speech to a jury, and gave as a reason for it that he was trying to fuddle his brains down to the capacity of his jury. This custom could be “more honored in its breach than observance."
Listing, besides being the substratum of all the other proceedings, is a constitutional requirement, in order to ascertain the value of the taxables, and thereby determine the rate; it is also necessary in order to know the pro rata share of each citizen, and to keep up with the continual changes of property from hand to hand. This list is indispensable to the collector to inform him of the amount to be collected from each citizen, and is the only security that the citizen has that an exorbitant amount will not be collected of him. It is also necessary to the State in its settlement with the collector. Its chief importance, however, consists in the fact that it secures a uniformity of taxation. Usually the most important work is placed in the most incompetent hands, and therefore it would be safe to assume that by far the greater proportion of tax sales that are declared void find the cause just here ; in fact, it is well known that but few men recognize their lands as exhibited upon the tax books. The particular estate which one may own in the property, whether a naked trustee, tenant, or common, or life estate, &c., &c., we venture was never dreamed of by a large majority of the assessors.
And yet the list is passed to the collector, who, after keeping it for a time, returns it to court, and the description and ownership described therein is the only description by which it may be sold. Either the Legislature should abolish all description, and make it a proceeding in rem, or abolish incompetent assessors. It should demind bonds and security from its assessors, as well as its collectors, for a faithful discharge of their duties; and whenever the State or the purchaser of a tax title should lose the benefit of the purchase by means of a failure on the part of this officer to discharge his duty, let him be held to the damages. A greater amount by far has been lost to the State by reason of incompetent assessors—incompetent in mere scholarship and intelligence-than has been lost by collectors failing to pay over, to say nothing of losses to the citizens who may have purchased. The courts of no State have looked more closely into the duties of assessors, or have determined more cases upon the manner in which assessors have discharged their duties, than have the courts of Tennessee, in proportion to the number of tax titles that have come before them for adjudication. Notwithstanding this, we venture the assertion that the assessors of no State have entered upon the discharge of their duties with less positive instructions than have assessors of Tennessee.
Let us look for a moment at the statute, (Code, section 567,) and ascertain what the assessor's books are required to show :
1. The name, in alphabetical order, of each owner of the property assessed in each civil district, unless the owner be unknown, in which case it shall be so stated.
2. The description of the property.
Take the 2d and 3d above, “The description of the property,” "The contents, when it can be known, in acres." What character of
, description will fill the indefinite and general language above, in section 2? To say that it was 250 acres belonging to John Smith, is this sufficient? Land, like everything else, is susceptible of many descriptions more or less accurate. How near the accurate must it be? Section 1 provides that the name of the owner, if known, shall be given. Section 3 provides for stating the contents. Now section 2 certainly demands something more. What more? The boundaries? If so, the assessor must be a surveyor, or have the deeds before him. One court may be of the opinion that a certain character of description is sufficient, while another court will be of a different opinion. One assessor will construe the law to mean one character of description, while another will adopt a different one. Take the 3d, “The contents, when it can be known, in acres.” It can always be known. It can be surveyed. The assessor can go to the Register's office, and if he is a lawyer or versed in the mysteries of that office, can tell you precisely what the title papers say on that subject. But what can be done, and what must be done, may be a very different question. One judge can tell a jury that it was the duty of the assessor to have examined the Register's office, while another judge would say it was not necessary.
One might honestly believe that “can” exhausts all possibilities. “When it can be known,” implies a possible knowledge, in such cases. The reader will see at a glance that the indefinite language of instruction to the assessors, as quoted
above, is well calculated to embarrass men of much higher intelligence, and is altogether too loose and general to be a rule of property, and as such, entitled to a very high degree of respect. If our other laws of property, such as descents, &c., were equally general and indefinite, our books would be full of contradictory decisions, as well as that most bateful of all legislation-judicial legislation.
Let us before leaving this branch of the subject, "confound confusion,” by throwing in a principle by which the judge trying a tax title may be governed in the construction of the aforesaid statute. In 1 Buss., 617, Lord Mansfield said “that there is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament and clauses merely directory." The vagueness of the rule, and the fact that some such rule exists, give a discretionary power to ministerial officers dangerous to all private interests, and not unfrequently gives a warrant to a judge to be wiser than the law. The caprice whicii presides in the one case and disposes of a positive statute is a very capricious caprice, and may be absent in the trial of a second and third cause, or surrender its place to a whim more dangerous and uncertain. This rule, if admitted at all to apply to tax laws, is to vest the legislative power in the assessor, collector, or sheriff, and allow them to disvose of property, not according to the statutory requirement, but their private opinions, and thus place at their private discretion the property of every citizen. Why could not the Legislature adopt and make positive some reasonable description of the land, which when complied with, should carry the title, and when not complied with should avoid the title. Every man knows that he is liable for some amount of taxes annually if he owns any realty, and knows whether he has paid it or not. And if he has not paid it, he knows that the same is being proceeded against in a certain court. And why not legislate upon the reasonable presumption of this knowledge. Such a delinquent does not deserve the benefit of all character of technicalities and conditions, to enable him to hold land upon which he refuses to pay the taxes. If it is wrong to sell land for the nonpayment of taxes, let us say so; if it is right, let us determine, in plain unequivocal language, how it is to be done. And when done, let it “ be the be all and end all” to the matter.
It is a notorious fact, that few persons will venture to buy property at a tax sale. The result is, it is “purchased in by the State.” And what then? Taxed the succeeding year to the same defaulting owner, and again sold for the taxes, and again "purchased in," and
so on annually. In some cases, the owner has attempted to sell, or the property has been decreed to be sold, when lo! it took half the purchase money to pay back taxes.
back taxes. The result is, those who do pay their taxes have much to pay each year because of the default of others, and the rate must be annually increased to meet the accumulated interest on the public debt. The Legislature has resorted to several modes, punctual in their character, to prevent this recurring evil, all of which have failed to excite the alarm of the tax payers. One of these modes was to charge a large per centum, say fifty, when the owner did redeem. This penalty was so large, that the owner preferred to take the chances rather than pay it. His attorney would inform him, upon a ten minutes' investigation, that the sale was void for errors arising in the assessment, or in the subsequent proceedings. What necessity was there, then, in paying the penalty—or even the taxes. If the State had bought in the property, the preceding year, he would never think of redeeming, because, the State would never disturb him in the possession. If another than the State bought it in, he could rely upon errors in the record of sale with as much certainty of obtaining a verdict in an ejectment, brought against him by the purchaser, as did Antonio of winning the suit upon the bloody bond of Shylock. In truth, tax sales are so suspicious that they taint, with a like character, all who touch them; and few good citizens would like to be so much in disrepute as to have it said of themselves that they ever attempted “to cheat a man out of his land by buying it at a tax sale." So that now, at one of these sales, but two persons are present as purchasers--one of whom is the State ; the other is some hard-cheeked, imperious citizen, who, for the sake of the centum per centum, is disposed to gamble a little--in a legal way—at the risk of some timid man, whom he immediately sits about alarming; and these men are the plaintiffs in the ejectment suits, which they invariably lose. Why not allow the court in which the land has been condemned to issue a writ of possession to the purchaser, and put the defaulting tax payer to his ejectment or redemption. We venture, if such was the rule, that the long list, now annually filed with the Comptroller, of persons who have not paid their taxes, would diminish until it would not exceed the length of the alphabet. Taxes have become a serious matter, and it behooves all good citizens to cast about and devise the best plan by which they may be collected, and to see that each man contributes his proportional part towards the payment of a common debt.