Show I 1 THE TAX oase CASE 0 x iee IFF JUSTICE T ta therland TJ eon et a al 1 Si latice field in french vs wills wall in delivering lo pinion of the C court ourt states eie ere are undoubtedly many stoy requisitions intended intend elt eil lemaide of off ivers N of busineau aa devolved upon mj which thich do not limit their ier Ter a or render its exercise in dis ct the requisitions L ha are aro regulations atel cl to secure order system il dispatch atch in proceed proceedings and regard of which the r s wes leb interested cannot be bein ini busly affected provisions Provi siona of character arao aral ter are not usually reea fea iea aa mandator r unless accod aeiry ot negative words import acts required fidall nol not any other manner or 10 than that designated but ea ett the requisitions prescribed mended wended for tor or the protection of the te citizen and to prevent a sacrifice fic of bis ills property and by a disregard of which his hia right might it be and gene generally rally raily would be injuriously affected ted they are not directory but manda mandatory tory toty they must be followed or the will be in invalid VA lid iid the power af the officer in all such puch cases eases is limited by the manner and conditions prescribed for inq it exercise applying the rule as thug thus laid down and which sa far as this court hib his concerned establishes the law jaw to the case now under consideration it will be hiir our duty t to find out by stud studying ving the differed sections of the revenue law of this thia territory which are aie the directory and which the mandatory provia ions ious ons thereof which are designed to secure order system and dis dispatch batch patch in and which are intended tend ed tou tot ule uie protection of the 6 ci I 1 lizen when by this mode th the distinctive qualities of the various provisions are ato ie reached ached th there ere will oe ve no very great greaf difficulty in arriel ing ng at the rne ine merits and demerits of the demurrer for the purpose liea ikea 0 of 1 f this decision only such tuch provisions of the law as are deemed mind mandatory atory will gill ba referred to such as ar are e tary can have no behring bearing on this casey case at least BO to far as the tho state of the pleadings piea plea dinga are concerned sec see 2 of the act requires that all taxable property shall be assessed at a abair fair dahn couil value the purpose of ehia thia requirement must be to bring an all property up on an equality of taxation and as ia is said by manning judge in clark claris vs crane 5 mich p there cannot be equality of taxation without equality of assessment w here where all pro pelly perly is a not ass aes assessed essed by the same that standard has been fixed by the law in the she present case and not left to the discretion of the collectors and as tessora hes ses bors sora the lile object of the pro froh frovik 0 ion on in our statute must ther eore 6 necessarily abdi be to secure equality of taxation and being ao so thy this taxpayer rione ia is interested in this part of the law and its pyo ift must be for his protection and te to enable him to r reap zip hip lip 1 the h 0 full benefit of it lt just what whitt th jho she I 1 faw jaw aw requires to ba done must be done and it ia Is his hia right light to know it la lis done and done in the manner manver prescribed the tae ina ipa manner mannen riner tiner or mode hf J tt nay only manner or mode by which it can be done and the coll collector octor ector and assessor has no dire discretion tion ili in the matter what ho he ia Is required to do in this regard is not designed to secure order system or dispatch of business but MR is designed as a means whereby the rights of paw par ties interested namely the tax payers cannot be injuriously a affected bec sec 4 of the act provides and aud requires as soon as the assessor and collector shall have fild filed his bond the county clerk shall furnish him with a all kil suitable table tabie book conveniently ruled and hud headed in thet the way prescribed by the form therein specially lly ily set forth i the command of the statute is and the form by it prescribed is fixed and determined bet get out in detail and ample in all its part parts no discretion ia is given to the assessor and collector in the matter nor to the county cle cie clerk ric he Is required to fir furnish nish the book boob just and exactly in the form provided it ia Is a statutory ferm term made out and inserted in the statute perfect in all its parts and it ia Is as necessary nece on the part of the county clerk to follow it as it is in upon him to furnish the book he cannot take from it nor noi add to it nor can the as assessor and collector except in the manner provided in the following sections section s of the law and thero there exception et do not relate to nor hor affect the tho form as such sec bee 6 require requires a that the assessor assess or and collectors collector shall ball annually present the tac tas list to the county court at itt its june session etc sac 7 requires that after the adjournment journ ment of the jund juad ses bes session slon sion the clerk of too toe court shall write white upon the head of the tax list tho the territorial and county rate percent per cent for that year and st set each person persons Is amount of the territorial and county tax in the proper columns opposite his hia name came and furnish it to the tho assessor and collector etc the object and purpose of this requirement quire qui mont rement ia Is that by it t he the t taxpayer ax may ba given the opportunity to know the tho rate per at which the assessed valuation ot of his property is taxed and andio to know that such rate Is uniform L in n insap its application to the property of all idl the other taxpayers having had bad first tho of knowing that bis his property and that of all the other taxpayers in his county has hag been ass asa eased at a fair c asak value and that the tax list bs has brien biben made mad out strictly in conformity to the law and abid been presented ted to the ca county anty court courts ha be bastke has haa the further right to know that the hd rate per cen which he is called upon to 0 o pay as tax tas is no more or lebs less than ne tip should pay and that all others are assessed to pay an equal per pier con tum these are the mandatory require ments menta of the statute andareh ant ret sa 6 because they are all clea clearia rIV for the protection of the taxpayer in the prevent prevention ion iod of a sacrifice of hip properly per ty aud and by a llis disregard regard of which on the tho part of tha the officials ficiala of his dahis righta ml might ht and generally would be injuriously affected and aro arc buch euch aa ag it ja Is bot not only incumbent upon upon the office jo to follow but butro are ure thoe thos dho eho dhe eho must follow only aft alcid dianthe in the manner prescribed by tho statute in the duty of obeying ticora ho he has no discretion in the event of it lt becoming ned nee necessary for an officer to institute ie 19 gal proceedings for the callec ion of a tax to flo mke make his am complaint P baldt good he would girat have 10 0 set out oaf that thai he was the legally authority to the tax and all tho tha various vatious mandatory require lequire or liro provisions visions of the statute had been fully coni complied plied with nor that a gt general compliance bad had been had but that each step specifically stating slating it had been t taken to io thaltha thab that the court and the defendant might have the full fuli I knowledge wied aled of all t be the particulars to etl ett entitle itil him to a must show that the tax is a it if gal and valid tax lax and do this thia hb must plead in ex belaga ao so aa WR t to D show that t he the mandatory provisions have been in each ond every particular he must MOE not only eo so plead but ho he must be able to prove all that the t he pleads A failure to do the one subjects his comp complaint lawt to a I 1 demurrer and of the other bis his case to be a allure of recovery and it is necessary that the same regularity should bo ba observed in an answer wherein the attempts to tu set sec up that hib hia acts whatever they abre were performed aa us an officer add and under and in pursuance of a statute inthis this cabel donot do not think fl up ia us a matter of defence the various us provisions under which he seeks to tl shelter himself ia that full and perfect mannerly manner it is Js necessary for lor him to do and that thad therefore as to such parts parta of his hia u the de demurrer murret ia is directed in th that regard the demurrer aa As to that branch brandhof of the c cabe case i a i ee wherein it is claimed by counsel for plaintiff that the tax law is invalid or of ahat that a tax assessed ul under t ia void because of athold the ia aind and pernicious eff effect abt of the enforced construction put upon it by the ff ler mer tind and of the manner in which taxes have been remitted I 1 I 1 have to say I 1 do not think thore there can be any doubt that this section on its face II 11 intended only that the county court should remit takes taxes when in ili its judgment they were werd erroneously assessed the mere fact that such power is given by the tho law doeh not render it vicious like provisions exist I 1 undertake to dy eay in neatly nearly nearly every law in the union pertaining to revenue if not to the county court tostine to some somo supervisory board or icer officer timm tiff I 1 the fact that it has been universally continued bythe by the territorial officers so far as to td make it invidious cannou cannot determine the judgment of this court or that there has be been n an enforcement eo so notorious as to be common knowledge or information the mere assumption ota ofa of a right t to doa thing by an of officer fleer claiming to act under a lawi law and to such manner aa as may be a forced construction of the law no matter how long pursued does not ann aff affect the validity of ot tho the law it would be equally unjust on the tho part of the court to declare a law void which on its face was deemed valid on the ground that it had been used perniciously bously by bad men to the furtner anea anca of their evir purposes as it was for ineil men to so usei use it the court cannot presume that there over ever was a time even in this terii Teril territory torys toris when it WAS not po for this court to protect tho tha citizen in we right rights and during all the years referred to by toy counsel within which the unjust construction was given to this provision of the law by bythe bytho aho ahe the tho local autho authorities cities those who fenn thome theme themselves elVe eive sa aggrieved 99 cleved had their remedy I 1 cannot now hold the tha law to be an invidious one and therefore that it is a nullity bad ban baling g upon buch such opinion such reason reasoning ing lug as theroun the counsel 1 sel sei have advanced if a valid law is improperly enforced di oa an enforced construction it ii 1 the dhe duty of rhe iha court to construe it on a proper case presented and iii in a proper caso case carsetn enforce that construction if persons grieved aggrieved ng by an and construction of ufa a law by evil mn indin do not seek their proper legal remedy at the ti time a e af of the gneva uce or while the remedy ia Is ope to ahm I 1 jhb fault ia is their I 1 6 orn onn ori mun the branc brauc sil fit af demurrer rahi lb iba the question as to lo the validity ot ehe the luw law Is ther therefore erbis erbig overruled the proviso to the repealing beo see we react act net of feby my 22 1878 saves from m any right accruing or any laabi liability itier ty tor for forfeiture or penalty incurred under the thu acts and p preserves iese rose ria rig an any y suit or proc proceeding ceding begun or pending previous fous lous to the repeal und and all uon uch such forfeitures penalties lesma may be enforced as if it said repeal hafa not liot been made mada by the 0 old oid law the tax was made e amen aben a llen lien n on the thia property assessed no particular method ia Is prescribed ill in that law for its ita enforcement it would seem that the only means of enforcing the collection af a tax was by elzure and forfeiture of the property properly no warrant wag waa provided for fur aud the tho general course pursued by bv the officer was swab simp simply lylo to mako make a seizure and sale of the ther property pe i aly in this easa caas there was a lue seizure of personal property roper ty no xo aie ale paie har haa been made because of df the by the claim of the plaintiff it Is claimed 1 ed by tig the co counsel usar the plaintiff that the defendant at th e time h he 6 made madd t the he seizure had no legal authority for doing BO so bat but that he had a remedy against the defendant it 11 was by i suit sult by care CaTe carefully fUlly reading the proviso of section 22 act of february 1878 1679 it ivill iii bo be seen that it kaves baves saves from impairment kny any right accruing in or dr any liability forfeiture or penalty incurred he ae fo ns ro iwed and preserves any buit suit pro j se cution or proceeding bedin or pending previous ous t ti i peal and alid tures lis its X 11 1 1 or penalties may be 63 enforced as if said cepl repeal eai eal hadnot had nol not bee been n made that is that any oo age ave iia or any liability forfeiture or penalty incurred under the repealed laws bhail shall no nol not be im impaired afred aired by the rea rel repeal that thai an any sult suit prosecution or broon dib begun un or pending previous to toche the re repeat eaf shan shad not a p at by the repeal that ati rights forfeitures I 1 ties or penalties al ties incurred jhc under u n der the thu 4 repealed pealed ri acts nay way nay aay bie enforced riat the repeal u the last jasi sAil sentence tence of ov 3 33 3 1 all delinquent taxes due and remaining ni unpaid dil dri on ihei he of march 1678 shall be collected of the person assessed in accordance with the provisions of ot this acaby act by the collectors of their respective counties clearly this refers to the delinquent taxes the oitt law from the very terms of the law as it now is and ana its date there would have been no iio delinquent taxes due and remaining tin unpaid paid march 1 1878 arising un under dar it if this ba so and there can be no doubt it is then the tho right to proceed for the collection qt f tho the tax in this case wass wasa was a right incurred under the old law arnd arid adaill all nil sueh such rights section 33 of the ni new ew law provides provide sinak sinai may be enforced notwithstanding the repeal how hoa why in the cianne manner provided bisection by section 28 of bf tho the new now law II 11 in this way then thed he certainly would not proceed by distraint for such taxes 1 1 the selz seiz seizure ure of the property agthe of the plaintiff wms was made on the ad day of december 1878 the new kawwas law was approved february 1873 on the day of ua iia approval it became the law of the territory and the defendant was waa bound by its ita pio plo visions lona iona from thence forward he could only sue for the taxes and hud had no right to seize when he fie did and his attempt therefore ei to justify ty his aati acts by pleading that thab thuy they were in pursuance of th the statute will not hold and his hig answer ia Is Th demurrer to that br brn bra tich of tha the answer ia sustained us if it the officer who kilada the list nad had retired from bince aud and ind the seizure of the property had bad been made by his suc guc successor cessor before the en enactment set det merit and approval of the hew bew new iw law his seizure would I 1 br haye 1 P bee bec L valid if otherwise the law lavy had bein been som Pom complied plied piled with and the tax wag was wa a y valid lid tid existing tax tai and it was a delinquent de ll 11 n quent |