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the lands,1 unless there has been a return of the delinquency. A failure to make such return when required,2 or to make it within the time prescribed by law,3 invalidates all subsequent proceedings; but the validity of the tax itself, and of the lien therefor, is not affected. The delinquent list is usually required to be a copy

263; Otis v. Chicago, 62 Ill. 299; Muskegon v. Martin Lumber Co., 86 Mich. 625; Newkirk v. Fisher, 72 Mich. 113; Burns v. Ledbetter, 54 Tex. 374; Thatcher v. Powell, Wheat. (U. S.) 119; Martin v. Barbour, 34 Fed. Rep. 701; Huntington v. Brantley, 33 Miss. 451; Swan v. Knoxville, 11 Humph. (Tenn.) 130; Thompson v. Burhaus, 61 N. Y. 52; Striker v. Kelly, 2 Den. (N. Y.) 323; Johnson v. Elwood, 53 N. Y. 431; Tallman v. White, 2 N. Y. 66.

In Homer v. Cilley, 14 N. II. 85, it was held that a sheriff acting as collector, is bound to deliver a copy of his list of taxes to the deputy sheriff, in the same manner as collectors are required to do, and that until such list is so delivered, he cannot lawfully advertise and sell.

Forfeiture. The return is also necessary, to lay the foundation for a forfeiture. Hill v. Mason, 38 Me. 461.

1. Pidgeon v. People, 36 Ill. 249; Taylor v. People, 7 Ill. 349; Pickett v. Hartsock, 15 Ill. 279; Morrill v. Swartz, 39 Ill. 108. And see Buck v. People, 78 Ill. 560; Ogden v. Chicago, 22 Ill. 592; Burns v. Ledbetter, 54 Tex. 377.

In some of the states, the filing of a delinquent list constitutes the institution of an action against each tract of land described in it, for the recovery of the taxes appearing in the list against such tract. Redwood County v. Winona, etc., Land Co., 40 Minn. 512; Chauncey v. Wass, 35 Minn. 1. And it is in the nature of a pleading stating what is the cause of action. Wiggins Ferry Co. v. People, 101 Ill. 446.

Under the Nevada statutes, the existence of a delinquent list is not essential to a right of action for taxation, and evidence tending to show that the tax sued for had not been entered on the delinquent list, before the action was commenced, is immaterial. State v. Northern Belle Min. Co., 15 Nev. 385; State v. Central Pac. R. Co. 10 Nev. 47. 2. People v. Otis, 74 Ill. 384; Pickett v. Hartsock, 15 Ill. 279; Wartensleben v. Haithcock, 8o Ala. 565; Fleming v. McGee, 81 Ala. 409; Šimms v. Greer, 83 Ala. 263; Lawrence v. Zimpleman, 37 Ark. 643; Newkirk v. Fisher, 72

Mich. 113; Huntington v. Brantley, 33 Miss. 451; Belden v. State, 46 Tex. 103; Pitts v. Booth, 15 Tex. 453; State v. Kirby, 6 N. J. L. 143; Thatcher v. Powell, 6 Wheat. (U. S.) 119; Martin v. Barbour, 34 Fed. Rep. 701. And see Thompson v. Rogers, 4 La. 9.

Parol evidence is inadmissible to supply the omission, when the delinquent list and notice of sale, and proof of their publication, are required by statute to be perpetuated by a record, to be certified to by the court before the sale. It is indispensable that such record be kept. Martin v. Barbour, 34 Fed. Rep. 701.

3. Weir . Kitchens, 52 Miss. 74; Huntington v. Brantley, 33 Miss. 451; Hickman v. Kempner, 35 Ark. 505; Burns v. Ledbetter, 54 Tex. 374; Martin v. Barbour, 34 Fed. Rep. 701. But see Chiniquy v. People, 78 Ill. 570; Leindecker v. People, 98 Ill. 21; Houghton County v. Rees, 34 Mich. 481; Gutches v. Todd County, 44 Minn. 383.

In State v. Carneall, 10 Ark. 156, it was held that a sheriff cannot be deprived of his office by failing to return his assessment list within the time prescribed by law, without an official determination of delinquency.

The return in the prescribed time is also necessary to entitle the collector to credit for lands reported for non-payment. Chadwell v. State, 8 Heisk. (Tenn.) 340; State v. Viator, 37 La. Ann. 734.

A warrant for the collection of a tax based on a tax roll, returned before the time prescribed by law, furnishes no protection to the collector, Westfall v. Preston, 49 N. Y. 349; and is void. See Ronkendorf v. Taylor, 4 Pet. (U. S.) 349; Flint v. Sawyer, 30 Me. 226; Hobbs v. Clements, 32 Me. 67; Hickman v. Kempner, 35 Ark. 505; Bleidorn v. Abel, 6 Iowa 6. But see Jackson v. Cummings, 15 Ill. 449.

Three Weeks.-In Pennell v. Monroe, 30 Ark. 661, it was held that a statute requiring a delinquent list to be published at least three weeks, means twenty-one days.

4. Union Trust Co. v. Weber, 96 Ill. 346; Chiniquy v. People, 78 Ill. 570; State v. Hurt, 113 Mo. 90; State v.

of the assessment roll 1 showing what taxes remain due and unpaid,2 upon what property, and upon whom they were imposed,3 and that all statutory requisites have been complied with.4 A statutory form for the return of delinquency must be substantially complied with.5

Hutchinson, 116 Mo. 399; Glover v. Edgwater, 3 Thomp. & C. (N. Y.) 497. And see Oteri v. Parker, 42 La. Ann. 374; People v. Seymour, 16 Cal. 332; 76 Am. Dec. 521.

1. Hayes v. Viator, 33 La. Ann. 1162. It should appear, either in the return, or in its annexed verification, that it is a transcript of the assessment, or that it was taken therefrom. Thompson v. Burhaus, 61 N. Y. 52.

2. Bristol v. Chicago, 22 Ill. 587; Beers v. People, 83 III. 488; Bleidorn v. Abel, 6 Iowa 6; Chouteau v. Hunt, 44 Minn. 173. And see Burns v. Ledbetter, 54 Tex. 374; Mann v. People, 102 Ill. 346; Whitney v. Wegler (Minn. 1893), 55 N. W. Řep. 927.

In Louisville, etc., R. Co. v. Com., 85 Ky. 198, it was held that in reporting delinquents, the sheriff is not confined to those who become so during his term of office.

A collector's report of delinquent lands, which shows that he was collector of taxes for a certain year, and that he had not been able to collect the taxes due on the lands mentioned in the report, sufficiently shows for what year the taxes were levied. Karnes v. People, 73 Ill. 274.

Where different rates of taxation are imposed upon different property, the return of the collector should specify the several sorts of property, so that each kind may bear its proper rate of taxation. Savannah, etc., R. Co. v. Morton, 71 Ga. 24.

In Morrill v. Swartz, 39 Ill. 108, it was held that a collector's report merely showing the total amount of taxes due, without showing whether they were due to the state or county, is invalid. See also Fox v. Turtle, 55 Ill. 377.

Abbreviations.-The use of initials or abbreviations at the head of each column in the collector's report, to indicate the kind or amount of tax, is unobjectionable. Chiniquy v. People, 78 Ill. 570. And see State v. Eureka,

etc., Min. Co., 8 Nev. 15.

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Halsey v. People, 84 Ill. 89; Morgan v. Camp, 16 Ill. 175; Chouteau v. Hunt, 44 Minn. 173; Burns v. Ledbetter, 54 Tex. 374. And see Oliver v. Gurney, 43 Minn. 69; Kane v. Brooklyn, 1 N. Y. Supp. 306; 48 Hun (N. Y.) 618; Kelly v. Craig, 5 Ired. (N. Car.) 129.

The description must be sufficient to identify the land, and the person or persons against whom it was assessed, must be named. Burns v. Ledbetter, 54 Tex. 374. And see Cooper v. Jackson, 71 Ind. 245; Knight v. Alexander, 38 Minn. 384; 8 Am. St. Rep. 675. But slight variations which are not misleading will not vitiate it. Davis v. How, 52 Minn. 157. And see State v. Rau, 93 Mo. 126.

Where a tract of land containing more than one subdivision is assessed to the owner of one parcel thereof, who pays the proportion of taxes chargeable against his land, the residue of the tract should be returned as delinquent. Pennell v. Monroe, 30 Ark. 661.

In Thompson v. Burhaus, 61 N. Y. 52, it was held that where neither the return of the collector nor that of the treasurer shows that the unpaid taxes are imposed upon non-residents of lands, there can be no sale by the comptroller.

Name of Owner.-In Halsey v. People, 84 Ill. 89, it was held that where there is a column in a delinquent list, headed "In Whose Name Assessed," and in such column, opposite the several tracts of land, names are given, and the collector states that he gives the owners' names so known, the names appearing will be taken to be the names of the owners of the land so far as they are known, and the list sufficiently complies with the requirement of the statute in this particular.

far as they are

4. Cooley on Taxation (2d ed.) p. 455. And see Wartensleben v. Haithcock, 80 Ala. 565; Fleming v. McGee, 81 Ala. 409; Williams v. State, 6 Blackf. (Ind.) 36; Charles v. Waugh, 35 Ill. 315; People v. Land Owners, 82 Ill. 408; Stambaugh v. Carlin, 35 Ohio St. 209; Belden v. State, 46 Tex. 103; Thatcher v. Powell, 6 Wheat. (U. S.) 119.

5. Fox v. Turtle, 55 Ill. 377; Pickett v. Hartsock, 15 Ill. 279; Morgan v.

Provisions as to the verification, authentication, and publication of the delinquent list,2 together with those having reference to the return and filing,3 are mandatory, and must be strictly complied with. A return in the statutory form has been held good,

Camp, 16 Ill. 175; Morrill v. Swartz, 39 Ill. 108; Simms v. Greer, 83 Ala. 263; Stambaugh v. Carlin, 35 Ohio St. 209. And see Weston v. People, 84 Ill. 284; Morrill v. Swartz, 39 Ill. 108; In re Tranior, 27 La. Ann. 150; Cummings v. Easton, 46 Iowa 183.

A mere omission of a word, where the error is manifest, may be disregarded. Scherber v. Koehler, 49 Wis. 291. And see Spellman v. Curtenius, 12 Ill. 414.

Where a report contains matters not required by statute, they may be disregarded, if it is otherwise sufficient. Ogden v. Chicago, 22 Ill. 592. And see Bristol v. Chicago, 22 Ill. 587.

In St. Anthony Falls Water Power Co. v. Greely, 11 Minn. 322, it was held that a list returned by the clerk, which purports to be a list of all taxes "delinquent or unpaid," when the statute provides for a list of all taxes "unpaid and delinquent," is insufficient to authorize a sale thereunder.

1. See Law v. People, 8o Ill. 268; Weston v. People, 84 Ill. 284; Hough v. Hastings, 18 Ill. 312; Hochlander v. Hochlander, 73 Ill. 618; Tabor v. People, 84 Ill. 202; Chicago, etc., R. Co. v. People, 83 Ill. 467; Hogelskamp v. Weeks, 37 Mich. 422; Upton v. Kennedy, 36 Mich. 215; State v. Viator, 37 La. Ann. 734; Thompson v. Burhaus, 61 N. Y. 52; Cotzhansen v. Kaehler, 42 Wis. 332; Miner v. McLean, 4 McLean (U. S.) 138; Hannel v. Smith, 15 Ohio 134; Stambaugh v. Carlin, 35 Ohio St. 209; Harmon v. Stockwell, 9 Ohio 94; Skinner v. Brown, 17 Ohio St. 33.

It would appear that a verification of a return is unnecessary, unless required by statute. See Hollister v. Bennett, 9 Ohio 83; Ward v. Barrows, 2 Ohio St. 241; Kane v. Brooklyn, 114 N. Y. 586. In Bennett v. Blatz, 44 Minn. 56, it was held that defects in the verification of a delinquent list does not affect the jurisdiction of the court over a proceeding for the recovery of a tax. See also Mille Lacs County v. Morrison, 22 Minn. 178.

2. Iverslie v. Spaulding, 32 Wis. 394; Fox v. Turtle, 55 Ill. 377; Pennell v. Monroe, 30 Ark. 661; Hill v. Mason, 38 Me. 461; Merriman v. Knight, 43 Minn. 25 C. of L.-22

493. And see Banning 7. McManus, 51 Minn. 289; Pitts v. Booth, 15 Tex. 453.

In Chouteau v. Hunt, 44 Minn. 173, it was held that the affidavit of the auditor is no part of the delinquent list, and need not be published with it.

In Buck v. People, 78 Ill. 560, it was held that an affidavit of a printer of a newspaper, of the publication of the delinquent list, and notice of applying for judgment properly sworn to, which states the day on which the publication was made and the paper in which the list and notice were published, is sufficient proof of publication, to confer jurisdiction on the court to render judgment.

The publisher of a delinquent tax list is not entitled to be paid his advertising charge before he delivers to the county treasurer the copies and proof of publication prescribed by law; and if he refuses to make the delivery until he is paid, the refusal is a good defense to his demand. Brown v. Otoe County, 6 Neb. III.

337

3. See Hickman v. Kempner, 35 Ark. 505; Leindecker v. People, 98 Ill. 21; Dukes v. Rowley, 24 Ill. 210; Babcock v. Bonebrake, 77 Iowa 710; Ring v. Ewing, 47 Índ. 246; Merriman v. Knight, 93 Minn. 493; Hill v. Mason, 38 Me. 461; Martin v. Barbour, 34 Fed. Rep. 701; Belden v. State, 46 Tex. 103; Simpson v. Edmiston, 23 W. Va. 675.

The filing must precede the publication of notice. Ring v. Ewing, 47 Ind. 246; Homer v. Cilley, 14 N. H. 85.

But it must not be filed until the expiration of the time allowed to pay taxes. Hickman v. Kempner, 35 Ark. 505; Flint v. Sawyer, 30 Me. 226.

In Adams v. Moulton, 7 Pick. (Mass.) 286, it was held that a statute requiring a collector to return to the selectmen, within a certain time, a list of persons from whom he has received payment of state or county taxes, requires that the list shall remain with the selectmen for their use, and not be taken away again by the collector.

In Louisiana, the failure to annex to a delinquent tax roll the affidavit required by law, does not vitiate the registry resulting from the recording of the roll. Edwards' Succession, 32 La. Ann. 457.

notwithstanding the omission of statements which, in the absence of the statute, would be held requisite.1

The return should be made and authenticated by the collector, unless some other officer is designated.2 The authentication consists generally of an affidavit or certificate to the correctness of the list. The return is usually made to the person whose duty it is to enforce the tax. A return may be amended where the rights of third parties have not intervened.5

c. THE RETURN AS EVIDENCE.-A proper and complete return affords prima facie proof of the validity of the tax,6 that the preliminary requirements of the law have been complied with,7

1. Dickisen v. Reynolds, 48 Mich. 158; Riddle v. Messer, 84 Ala. 236; Kinsworthy v. Mitchell, 21 Ark. 145; Bristol v. Chicago, 22 Ill. 587; Taylor v. People, 7 Ill. 349; Job 7. Tebbetts, 10 Ill. 376; Morrill v. Swartz, 39 Ill. 108. And see Ward v. Barrows, 2 Ohio St. 241; Chouteau v. Hunt, 44 Minn. 173; Kane v. Brooklyn, 1 N. Y. Supp. 306; 48 Hun (N. Y.) 618; Alvord v. Collin, 20 Pick. (Mass.) 418. But see Mayhew v. Davis, 4 McLean (U.S.) 213.

In Taylor v. People, 7 Ill. 349, it was held that a collector is not required to state in his return that he is unable to collect taxes by seizure and sale of the personal property of the taxpayer, as this is to be taken for granted from a report in a proper form, the collector being presumed to have done his duty. Under the Tennessee statutes regulating the sale of land for taxes, the record need not show the preliminary proceeding necessary to a valid tax; as, for example, that all the property in the county was assessed, and that the assessors were duly elected and qualified, etc. Nance v. Hopkins, 10 Lea (Tenn.) 508.

2. Law v. People, So Ill. 268. And see Weston v. People, 84 Ill. 284; Hannel v. Smith, 15 Ohio 134.

Under the Texas statutes, the comptroller is required to make out a list and forward it to the sheriffs of the counties. Burns v. Ledbetter, 54 Tex. 374.

In Ohio, the list must be signed by the collector, or by his chief clerk. Hannel v. Smith, 15 Ohio 134.

3. See Stambaugh v. Carlin, 35 Ohio St. 209; Weston v. People, 84 III. 284.

4. See Tallman v. White, 2 N. Y. 66; Hills v. Chicago, 60 Ill. 86; Babcock v. Bonebrake, 77 Iowa 710.

A statute imposing a specific tax, and requiring payment to the comptroller

general, in effect designates that officer as the proper one to receive the return as well as the money. Smith v. Goldsmith, 63 Ga. 736.

5. Jaquith v. Putney, 48 N. H. 138; Shelbyville Water Co. v. People, 140 Ill. 545; Carville v. Additon, 62 Me. 459. And see State v. Phillips, 102 Mo. 664. But see Henrico County v. McGruder, 84 Va. 828.

6. Olmstead County v. Barber, 31 Minn. 256; Mahaney v. People, 138 IIl. 311; Pike v. People, 84 Ill. 80; Fisher v. People, 84 Ill. 491; Chiniquy v. People, 78 Ill. 570. And see Muskegon v. Martin Lumber Co., 86 Mich. 625; Mast v. Nacogdoches County, 71 Tex. 380.

If the return is insufficient or improperly made or executed, it is not admissible in evidence. See Putman v. Fife Lake Tp., 45 Mich. 125; Kelly v. Craig, 5 Ired. (N. Car.) 129; Stambaugh v. Carlin, 35 Ohio St. 209.

In State v. Miller, 16 Mo. App. 539, it was held that a tax bill is admissible in evidence, even though signed by the deputy collector.

7. Burbank v. People, 90 Ill. 554; Chiniquy v. People, 78 Ill. 570; Mix v. People, 81 Ill. 118; Pike v. People, 84 Ill. So; Caldwell v. Hawkins, 40 Me. 527; Barnard v. Graves, 13 Met. (Mass.) 85; State v. Van Every, 75 Mo. 530; Boardman v. Goldsmith, 48 Vt. 403; Smith v. Mosher, 9 N. Y. Supp. 786; 56 Hun (N. Y.) 643.

In Ottawa v. Macy, 20 Ill. 413, it was held that a collector's return stating that taxes are unpaid, and that he can find no chattels whereon to levy, is conclusive of the fact stated. If it is false, he is answerable personally. See also Goodrich v. Minonk, 62 Ill. 121.

A demand for payment by the collector may be shown by his return. Barnard v. Graves, 13 Met. (Mass.) 85;

and that the tax is delinquent. The return is evidence for the taxpayer as well as for the public.2

Where a list is required by statute to be kept, parol evidence is inadmissible to supply omissions.3 The return is not evidence of anything beyond what the law requires to be stated.4 Parol evidence, however, is admissible in behalf of the taxpayer to controvert the list, and, in such case, it is also admissible on behalf of the collector in rebuttal. And, in an action against the collector, his proceedings may be proved by parol, when necessary to his justification.7

5. Liability of the Collector and Sureties-a. FOR OFFICIAL ACTION.-It may be stated as a general rule that a collector of taxes who is legally qualified, who is acting within the scope of his powers, and who acts under a warrant regularly issued by competent authority, is protected against all irregularities but his own,8

Job v. Tebbetts, 10 Ill. 382; Taylor v.
People, 7 Ill. 349.

1. See Chiniquy v. People, 78 Ill. 570; New York v. Goldman, 125 N. Y. 395. 2. See Bruce v. Holden, 21 Pick. (Mass.) 187; Barnard v. Graves, 13 Met. (Mass.) 85; Chiniquy v. People, 78 Ill. 570; State v. Van Every, 75 Mo. 530. The admissibility of a tax duplicate in evidence, in an action for the recovery of a tax, is not affected by the fact that the taxpayer is a non-resident. Wade v. Kimberly, 5 Ohio Cir. Ct. Rep. 33.

3. Martin v. Barbour, 34 Fed. Rep. 701; Hosmer v. People, 96 Ill. 58; Boardman v. Goldsmith, 48 Vt. 403; Iverslie v. Spaulding, 32 Wis. 394. And see State v. Northern Belle Min. Co., 15 Nev. 387.

A warrant of arrest against a taxpayer, is not a returnable process, and the proceedings may be shown by other evidence. Kelley v. Noyes, 43 N. H. 209. 4. Bristol v. Chicago, 22 Ill. 587; Sullivan v. State, 66 Ill. 75; Com. v. Hart, I Ashm. (Pa.) 77. And see Ogden v. Chicago, 22 Ill. 592. Nor is it evidence of anything not actually stated. See State v. Van Every, 75 Mo. 530.

A return by a collector, of unpaid taxes on lands of non-residents, is not evidence of the contents of the assessment roll. Wood v. Knapp, 100 N.

Y. 109.

5. Boardman v. Goldsmith, 48 Vt. 403. And see Andrews v. Rumsey, 75 İll. 598.

In Justices v. Fennimore, 1 N. J. L. 190, it was held that even though the collector is required by statute to enter in a book kept for that purpose, all cer

tificates received by him, and give receipts for the same, other persons may prove his receipt of such certificate, by parol evidence.

Where the statute requires the collector to make his return from the best information that he can obtain, in case of a loss of the records, he is made the sole judge of the sources and sufficiency of the information, and his report cannot be impeached by showing that he could have obtained better information, or that he did not know it to be true, but proof that it was not true would be proper. Andrews v. People, 75 Ill. 605. 6. Boardman v. Goldsmith, 48 Vt. 403. Irregularities in the delinquent tax list may be corrected by the introduction in evidence of the original assessment roll which gives the true assessment of the property. State v. Sadler, 21 Nev. 13.

7. Spear v. Tilson, 24 Vt. 420; Hathaway v. Goodrich, 5 Vt. 65. And see Muskegon v. Martin Lumber Co., 86 Mich. 625.

In Hathaway v. Goodrich, 5 Vt. 65, it was held that the collector's certificates showing seizure and sale, are not proper evidence in his favor.

8. Nowell v. Tripp, 61 Me. 426; Carville v. Additon, 62 Me. 459; Judkins v. Reed, 48 Me. 386; Caldwell v. Hawkins, 40 Me. 526; Ford v. Clough, 8 Me. 342; 23 Am. Dec. 513; Seekins v. Goodall, 61 Me. 400; 14 Am. Rep. 568; Bethel v. Mason, 55 Me. 501; Lott v. Hubbard, 44 Ala. 593; Sanders v. Simmons, 30 Ark. 274; Ewing v. Robeson, 15 Ind. 26; Noland v. Busby, 28 Ind. 154; Shaw v. Dennis, 10 III. 405; Chiniquy v. People, 78 Ill. 571; Hill v. Fagley, 25 Ill. 156; Sils

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