Emma Thompson and William White, Plaintiffs In Error v. Richard Roe, Ex Dem Jane Carroll, Maria Fitzhugh, Anne Carroll, Sarah Nicholson, Rebecca Carroll, Henry May Brent, Daniel Fitzhugh and Catharine His Wife, Devisees of Daniel Carroll of Duddington, Deceased

• Decision Date: 01 December 1859
• Parties: EMMA B. C. THOMPSON AND WILLIAM G. W. WHITE, PLAINTIFFS IN ERROR, v. RICHARD ROE, EX DEM JANE CARROLL, MARIA C. FITZHUGH, ANNE C. CARROLL, SARAH NICHOLSON, REBECCA CARROLL, HENRY MAY BRENT, DANIEL H. FITZHUGH AND CATHARINE D. HIS WIFE, DEVISEES OF DANIEL CARROLL OF DUDDINGTON, DECEASED
• Court: U.S. Supreme Court

63 U.S. 422

22 How. 422

16 L.Ed. 387

EMMA B. C. THOMPSON AND WILLIAM G. W. WHITE, PLAINTIFFS IN ERROR, v. RICHARD ROE, EX DEM JANE CARROLL, MARIA C. FITZHUGH, ANNE C. CARROLL, SARAH NICHOLSON, REBECCA CARROLL, HENRY

MAY BRENT, DANIEL H. FITZHUGH AND CATHARINE D. HIS

WIFE, DEVISEES OF DANIEL CARROLL OF DUDDINGTON, DECEASED.

December Term, 1859

THIS case was brought up by writ of error from the Circuit Court of the United States for the District of Columbia.

The facts of the case and instruction given by the Circuit Court are stated in the opinion of the court.

It was argued by Mr. Carlisle, upon a brief filed by himself and Mr. Badger, for the plaintiffs in error, who claimed under the tax title, and Mr. Brent and Mr. Tyler for the defendants, upon which side there was also a brief by Mr. Marbury and Mr. Redin.

Those parts of the arguments upon both sides which relate to the construction of the charter of 1820, and the subsequent act of 1824, will be noticed, omitting all those which referred to the ordinances of the corporation. It was agreed that the last charter of the city in 1848 had nothing to do with this case, the sale having been made in 1835.

Mr. Carlisle gave the following construction to the charter of 1820 and act of 1824:

1. By the 10th section of the charter of 1820, (3 Stat., 589,) 'real property, whether improved or unimproved,' might be sold for taxes. The only restriction was in the proviso (p. 590) 'that no sale shall be made, in pursuance of this section, of any improved property whereon there is personal property of sufficient value to pay the said taxes.'

By the 12th section, (p. 590,) power is given to collect taxes by 'distress and sale of the goods and chattels of the person chargeable therewith.'

Both these sections contemplated that the property should be assessed to the true owner. The 10th section distinguished, in the term of notice required, between resident and non-resident owners. The 12th section subjected to the payment of taxes the 'goods and chattels of the person chargeable therewith.'

No person could be 'chargeable' with the taxes, except by their being assessed to him. The corporation charged by assessment.

These provisions were found to be practically inefficient for the collection of taxes. It was absolutely necessary that the corporation should be relieved from the duty of ascertaining the true owner, and assessing the land to him. Accordingly, the act of Congress of 1824, (4 Stat., 75,) supplementary and amendatory to the act of 1820, was passed.

By its 1st section, the provisions of the act of 1820, so far as 'inconsistent with the provisions of this act,' are repealed.

By its 2d section, it is provided that 'no sale of real property for taxes, hereafter made, shall be impaired or made void by reason of such property not being assessed or advertised in the name or names of the lawful owner or owners there of.'

The same section abolished the distinction between residents and non-residents, in respect to the advertisement, and prescribed a uniform term in all cases, irrespective of ownership.

The provisions of the act of 1820, requiring the corporation to ascertain the person chargeable with the taxes, was inconsistent with the provision of the act of 1824, which made it unnecessary to assess the property to the 'lawful owner or owners thereof,' and therefore the former were repealed.

For it cannot be maintained that a mere stranger, having no interest in the land, could be chargeable personally with the taxes, so as to subject his goods and chattels to distress. And yet the land might be assessed to such person, (e. g., a former owner,) and advertised in his name; and the real owner might be wholly unknown, and the sale of the land would not 'be impaired or made void thereby.'

The effect of the act of 1824 was to authorize the corporation to proceed in rem, the tax being assessable directly and exclusively upon the lands, and not to any person.

This is understood to be the construction upon which this court proceeded in Holroyd v. Pumphrey, (18 Howard, 69.) There the Circuit Court of this District had holden the tax sale void, because the property was assessed to a dead man, it having been, for previous years, assessed upon the books of the corporation to his heirs. This court reversed the judgment, declaring, in effect, that under the charter of 1824 it was immaterial to what person, or whether to any existing person, the land was assessed.

It would seem to be hardly defensible to assert, that there being but one assessment—and that being sufficient to pass the land, irrespective of the true ownership—there is, nevertheless, to be imputed to the corporation another assessment, ascertaining 'the person chargeable' with the taxes, so as to compel a resort to the personalty, or otherwise to avoid the sale.

This view may be further illustrated by the case of Mason v. Fearson, referred to in the opposite brief. There it was held, in effect, that if A, owning fifty lots, and having them all assessed to him, sell and convey forty-nine of them, but the whole fifty remain assessed to him, one lot (and it may be the only one belonging to him) must be sold for the taxes on the whole. But if the doctrine of the court below be right, it would seem to follow, that in order to make the sale of such a lot valid, the personal property of the owner must first be exhausted by distress, thus making him personally chargeable with the taxes on all the lots assessed to him.

2. This view of the question, founded mainly upon the amended charter of 1824, is wholly disregarded by the brief on the other side, which merely remarks that the act of 1824 'makes some changes in the charter of 1820, but not necessary to be noticed.' In our apprehension, these changes are conclusive of the matter, even if, by the true construction of the charter of 1820, it was imperative that recourse should be first had to the goods and chattels of the owner.

But was such primary recourse required by the act of 1820 itself?

It is submitted that it was not. Nor, in the multitude of tax titles which have been tried in the court below, was the point ever suggested until the present case in 1857.

The whole argument in its support depends upon the assumption that the language of the 12th section, declaring that 'the person or persons appointed to collect,' &c., 'shall have authority to collect the same by distress and sale of the goods and chattels of the person chargeable therewith,' is mandatory upon the corporation, requiring a distress in all instances. This is assumed because of the well-settled law, that, in certain cases, the word 'may,' and other equivalent expressions, will be construed 'must,' in order to give effect to the intention of the Legislature, as in Mason v. Fearson.

But is this such a case?

In Mason v. Fearson, the charter had provided for the sale of one lot to pay the taxes on all; and this court held that the corporation was bound to exercise the power so conferred, and that, the first two lots having produced more than enough to pay the taxes on the whole, the subsequent sales were void. This is not at all analogous to the present case, which is that of the express grant of co-ordinate remedies, to be exercised optionally. The sale of one lot for the taxes due on all those owned by the same person, instead of unnecessarily selling them all, each for its own taxes, is manifestly for the benefit of the owner. But is it manifestly for his benefit that the summary remedy of a distress warrant shall be applied to his household furniture, rather than that a vacant lot lying in commons shall be sold?

The exemption clause in the bankrupt act of 1841, and the homestead and exemption acts in the States, indicate a pre vailing idea to the contrary; and no stronger individual case can be put for illustration than that of the venerable gentleman who owned this property in 1835.

This precise matter has been adjudicated by the Supreme Court of New Jersey, in the case of Martin v. Carron, 2 Dutcher, 230. There the clauses in the charter of Newark were identical with those in this charter of 1820. This same objection was taken. But the court held that 'the remedies are co-ordinate. It is not necessary that the goods and chattels of the owner or occupant of the lot be exhausted before proceeding against the land.'

Martin v. Carron, 2 Dutch., 230.

Mr. Marbury and Mr. Redin, for the defendants in error, contended that, under the tenth and twelfth sections of the charter of 1820, there is no discretion in the corporation or collector; but that it is mandatory upon them, under the provisions of that act, first to take the personal property of the owner, possessed by him within the corporation, for taxes claimed, before resorting to his real estate.

The tenth and twelfth sections of the charter of 1820 relate to the same subject, and must be taken together. The tenth section (which authorizes the sale of real property) is not independent but must be construed in connection with the twelfth section (which provides for the seizure and sale of the goods of the owner;) and thus taken and construed, the two sections mean, that if the owner of the real property has personal property upon the premises, or anywhere else in his possession within the corporate limits, sufficient to pay the taxes claimed, it shall be taken for them, and the real property, whether improved or unimproved, saved from sale therefor. The taxes to be collected were those which should be 'imposed by virtue of the powers granted by the act.' The taxes which the act authorized to be imposed were taxes on unimproved as well as improved lots. And all the taxes so imposed, on all descriptions of property, were, by the terms of the act, to be collected out of the goods of the persons chargeable with the tax; 'the person appointed to collect any tax imposed by virtue of the powers granted by this act shall have authority...