\ ri:DERAL REPORTER,
relation to, made by the board of public affairs of cinnatiagainst his several lots in the bill; that no provision was made in any of the ordinances or resolutions' or acts of said city of or of its officers or board's, giving to property owners the right' and opportunity to be heard in respect to the amount of the special assessments complained of; and fha,t ,no such provision (as complainant alleges) exists in any of the laws of the state appliCable to said city and the assessments in question. Under such circumstances the court is of the opinion, in conformity with its in the case oLC:;cott v.City of Toledo, 36 Fed. Rep. 385, that the assessments made against complainant's lots are wanting in "due process of law," and that, upon the showing presented by the bill, an order should be granted restraining the city of Cincinnati,its officers and agents, from enforcing, or the taking of any steps to enforce, the assessments complained of until the further order of this court herein. This temporary restraining order is in no way to interfere with the rights of the city of Cincinnati or of its board of public affairs to nu.ke a reassessment against complainant's lots, on account of the improvements referred to in the bill, in any proper and lawful manner, which will afford him notice of, or an opportunity to be heard in respect to, such reassessment. Noris the restraining order, now granted upon the case, made by the bill alone to preclude the city of Cincinnati from answering and disputing the allegations of the biil, or from show-' ing that complainant has waived his right to notice of, or opportunity to be heard in respect to, said assessments. Should the city of Cincinnati, after full opportunity to contest the truth of the objections presented by the bill to the validity of the assessments complained of, fail or decline to do so, then complainant may renew his motion for a preliminary injunction. If, however, the city should answer and controvert the case made by the bill, the restraining order may, upon its motion, be discharged. A restraining order as above indicated and directed will be issued by the clerk of this court to the defendants.
BANNON 'V. BURNES
September 2, 1889.)
(Clrcuit Court, Tv. D. Mi88ouri,
A city charter (charter of Kansas City, § 50,art. 6) provided that if realty could not be sold for the amount of taxes, interest, and cost, the city auditor should. if so directed, bid it off to the city for that amount, and make a record of the fact of the sale to the cit.y. No certificate was to issue upon such sale, but any person might thereafter pay to the collector the sum so bid, and receive a certificate, which ;should be assigned to him by the city auditor, which certificate should 'lre'st all the interest of the city in the'realty, and entitle such person to the same rights and privileges as if he had purchased the same at a tax-sale. Held, that the biddlllg in by the cityconst:ituted a public sale for taxes within the mcaning of the section conferring upon the au-
MUNICIPAl, COJIPORATTONS-TAXATION-SAJ,E FOR NON-PAYMENT.
BANNON V. BURNES. ,
'ditor power to'offer'atpublic sale property on which taxes were due, and in the , absence of any express authority in the charter, the auditor had no power to subsequently offer it for sale.
OF DEED-DUE PROCESS OF LAW.
The defect in the title is not cured by a provision of the charter declaring the tax-deed, regular in form, conclusive evidence of almost every essential fact, except that proof might be made that the taxes had been paid, or the property was exempt. or had been redeemed. If the property was sold at the first sale, the auditor had no jurisdiction over it. and it would be taking property without due process of law to make tax-deeds conclusive evidence of facts essential to jurisdiction.
SAME-PROPERTY CEDED '1'0 UNITED STATES.
Laws Mo. 1870, p. 355. gave the consent of the state to the acquisition by the United States of land in Kansas City for the erection of a post'office, and declared that the land when acquired, should, so long as it remained the property of the United States, be exonerated from all taxes,assessments, and other charges levied or imposed under the authority of the state. By the charter of Kansas City the lien for city taxes attaches on January 1st, but the levy is not made Until the third Monday in April. Held, that land so acquired by the United States between January and April was not subject to taxation by the city.
At Law. Ejectment. Johnson & for plaintiff. L. C. Krauthoff, for defendants. PHILIPS, J. This is an action of ejectment to recover possession of lot 62 in Swope's addition to the city of Kansas, Mo. This lot is the north end of the site on which is constructed the United States custom-house, post-office, and court-house. The defendants are the surveyor of the port and custodian of the custom-house building, and other government oflicials occupying offices in said building. The plaintiff claims title under a tax-deed fl'om the collector of Kansas City, dateJ November 6,1885, predicated on a sale made January 4, 1884, for the payment of taxes claimed to be delinquent for the year 1879. At the time said taxes became delinquent, Malvina D. Hughes was the owner of said property, and on the 9th day of April, 1879, she conveyed the same by warranty deed to the United States, for a valuable consideration, to be used and occupied by it for a United States custom-house, post-office, court-house, and other like public business. 'The cause was submitted to the court for trial without the intervention of a jury. The facts in evidence, so far as they are material, will appear in the following discussion. Various objections are urged by counsel for the government against the validity of the tax-deed. Without considering and determining others, we pass at once tothe consideration of one of gravest importance. The record evidence shows that at the tax-sale held in said city in October, 1879, this property, after due steps taken thereto, was put up fOf sale for delinquent taxes of 1879, and was bid in by the city auditor for the city, pursuant to directions from the city comptroller. Section 50, art. 6, of the city charter provides, in substance, that if any real property cannot be sold for the amount of taxes, interest, and cost, the city auditor shall, if directed by the comptroller, bid it oft' to the city for such amount. Thereupon the city auditor shall make a record of the Sllll1e in a book of sale, by stating such fact of a sale to the city, and the date of the same. No
certificate, ho\yeyer, shall b.e .issued on such sale; but any person ·lllay thereafter pay to the city collector the sum so bid, including costs,etc., and receive from the collector a certificate dated the day when it is issued, describing the property, etc., which certificate, before it shall be of any validity, shall.be assigned to such person by the city auditor, who shall note the same on his book of sales,and such certificate,'so assigned by the city auditor, shall vest all the interest of the city in or to such real property in such person; and such certificate shall be assignable to the same extent and in like manner as certificates given to purchasers at tax-sales, and shall entitll3 sllchpersonto thef;lilme rights and privileges thereunder as if he had purchased the same at a tax-sale. The question arises, by what authority of law was this property again advertised and sold to plaintiff 111 .1884? There does not appear in the charter any express provision for readvertising and selling as delinquent land so bought in by the city" Asthe whole authority of the city collector to take ltny action or step towards the sale of the citizen's property and the divestiture of his title comes from the legislative grant of the sovereign, the state, any such course as was pursued in this case should be clearly marked out in the chart()r, or appear by necessary implication. The charter does specify what the city inny do with the property so bought in by it.. Said section 50 provides for its transfer by assignment to anyone who will pay the amount of the bid, with penalties, costs, etc.; and section 76 provides for suit by the city, whereby the equity ofredemption of the owner may be cut off, and for the absolute sale in rem under execution. If is not to be concealed that other provisions of the. charter seem to contemplate that all unpaid taxes from year to year shall be carried on the land-tax books, so as to show all the antecedent unpaid taxes, and for what year delinquent. But all these general provisions precede and lead up to the section directing the public sale for such delinquent taxes. Section 42 declares that "on the first Monday in October in each year the city collector shall offer at public sale, at his office, in the city of Kansas, all real property on which taxes or special assessments shall remain due and unpaid, and such sale shall be made for and in payment of the total amount of taxes and special assessments, interests, and costs, due and unpaid on such real property." Then follows section 43, which prescribes with much particularity what the notice of sale shall contain. It shall contain "the several parcels of real property to be sold, and all delinquent taxes and assessments thereon, and such real property as has not been advertised and sold for the taxes of any previous year or years," etc. Section 50 clearly treats the buying in by the auditor for the city as a sale; for it expressly declares that when any rea] property shall be bid oft' for the city, it shall be the duty of the city auditor to make a record of the same in a book of sales, by stating .such fact of sale to the city. And as further proof, by the latter part of this section, provision is made for any stranger taking the benefit of the sale by paying to the city collector, not the taxes, etc., yet due and unpaid, but "a sum of money equal to the amount of all taxes, interests, and costs" <In such property at the time of such payment; and the certificate to be
given to such assignee of the city" shall vest all the interest of the city in or to such real property in such person." "All the interest of the city," as here expressed, necessarily implies that the city acquired such interest as a p1lrchaser at such Jand-tux sale. It could have no other assignable interest. And the fact that the holder of a certificate of payment of taxes to the city collector is placed upon the same plane of right as the original purchaser at public sale, being entitled at the end of the prescribed period to an absolute deed, forcibly demonstrates that in contemplation of the charter the bidding in for the city constitutes a sale, and therefore this lot could not be readvertised find sold, because it could not be said, as required in said section 43, that it was "such real property as has not. been advertised and sold for the taxes of any previous year." If after this "bid in" for the city some third party had paid to the city the sum equal to the taxes, etc., and received the prescribed certificate, and it had ripened into a right to a deed, such deed, to be of any validity, would haveio recite that this property was sold at public sale and for the payment of taxes. Section 65, art. 6, of the Charter; Sullimn v. Donnell, 90 Mo. 282,2 S. W. Rep. 264; Hopkin.s v. Scott, 86 Mo. 140. Consequently and necessarily the hidding in by the city constitutes a public sale for taxes, as prescribed in section 42 of the charter. The power to su advertise and sell is conferred alone by said section 42, except in the instance where the land for the lack of any bidder may not be sold at all. Section 75. . Once exercised by the delegated agent, the power to advertise and sell was exhausted, and the agency therefor ceased. Any reassertion of such power must have for its warrant express authority. We fail to find it in terms in the charter. Plaintiff's tax-title, therefore, must fail, unless, as suggested in the argument, the imputed infirmity be helped by the provision of section 64 of said article of the charler, which declares that the tax-deed, made after the prescribed form, shall be conclusive evidence of almost everything essential to its validity, except that proof may be madg that the taxes were paid before sale, or that the property was not subject to this taxation, or that it had been redeemed, or the money tenflered. It is to be conceded that the provisions of this charter respecting the validity of such deeds are very sweeping. And while the courts should treat with great respect the enactments of the legislative department of government, yet the courts, which stand as the last resort of the citizen, and the sworn guardian of his property rights, cannot fail to recognize that there are some things which even the legislature cannot do. It cannot tak\) the citizen's private property, even for puhlicuse, without due process of Jaw. It carinot prescribe a method by, and the conditions on which, property may be sold for taxes, and by the same act declare that when sold the deed shall be good, although the prescribp.d method was not pursued. and the required conditions of sale were not regarded; especially where such conditions are preceflent facts eSSf'ntiaJ to confer jurisdiction on the body or person undertaking to sell. Due process of law is not any process which legislative power may devise. As said by Mr. Justice CURTIS in Murray's Lessee v. Improvement Co., 18 How. 276:
., The.artiel,s [oOhe constitution] is a restraint. on the legislative as well as on the executive and judicial powers of the government, and cannot be so constrned as to leave congress [the legislature] free to' make any process' due process of law' by its mere will." The city charter prescribes that certain facts shall exist to authorize the city collector to advertise and sell, as has already been stated. rt is a well-established principle of law that in proceedings in invitum looking to the seizure and appropriation of private property for public uses, every fact which in its nature is jurisdictional must exist before jurisdiction attaches to the tribunal attempting the seizure and appropriation. "Power is conferred upon the court, to be exercised on certain defined and limited contingencies; and these contingencies must have happened, and the conditions on which it can act must have been performed, before its act can be valid. Its authority does not attach until the law has been pursued and complied with." Lagrouev. Raim, 48 Mo. 538. "Any statute is unconstitutional which attempts to make a tax-deed conclusive evidence 31:; to jurisdictional facts, or facts vital to the exercise of the power of taxation or sale, as distinguished from such facts as are merely formal, or of routine, or pertaining to the regularity or the manner of the exercise of such power." Black, Tax Titles, § 253. Judge Cooley (Tax'n, 470) expresses the principle thus: "The officer who makes the sale sells something 'he does not own, and which h8 can have no authority to sell, except as he is made the agent of the law for the purpose. But he is made such agent only by certain steps, which are to precede his action, and which, under the law, are conditions to his authority. " If, therefore, as we have attempted to show, the sale of this property to the city in 1879 withdrew it from future sale by the collector, his advertisement and sale in 1884 were clearly coram non jttdice. He had no jurisdiction over the subject-matter. The supreme court of this state bas held that it was not within the constitutional competency of the legislature to make such deeds conclusive evidence to such extent as to cut off inquiry as to whether facts vitally essential to the exercise of the jurisdiction in the tax proceedings existed. Abbott v. Lindenbower, 42 Mo. 162; Ewart v. Davis, 76 Mo. 129-134. Seetion 82 of this same article of the charter declares that"The tax-book and all other books and papers made or kept by the officers of the city, or in any manner relating to any tax, shall be received in all courts as evidence of all the facts stated therein, and of the validity of the taxdeed," etc.
rt would indeed be a queer and unique statute which should provide for the admission in evidence in all courts,to support t4e validity of .a tax-deed, the city books, or other books and papers pertaining thereto, while at the same time and place declaring that such evidence sbould not be admitted to impeach the validity of the deed. The sword of justice should be two-edged, and cllt botp.'\Vays. The office of a corresponding provision under the revenue laws .of the state was held by the supreme court to admit such records apd papers in evidence to assail a tax-title
BANNON V. BURNES.
where it was sought, as here, to shut off such proof by the conclusive effect of the deed itself. Ewart v. Davis, 76 Mo. 135. It is not apparent that there is anything in the points ruled in De Treville v. Smalls, 98 U. S. 517, in conflict with what is here held; for neither the statute there construed, nor those of the states cited, extended to or undertook to assert the position that the deed itself should conclude all inquiry as to whether the property at the time of the sale was subject to the summary process for taxes. In other words, the statute did not declare an ex parte deed valid where there was a lack of power to sell in the mode pursued. For, i.as said by the court in the De Treville Case: "It [the deed] may be reguilar in form and in the mode of its conduct, but it cannot be valid, unless authorized by law." Vide MW'sh v. FultM Co., 10 Wall. 683,684; Railroad Co. v. Parks, 32 Ark. 131; Radcliffe v. Scruggs, 46 Ark. 96. If, however, our conclusion as to the validity of the tax-deed be untenable, there is another obstacle in the way of plaintiff's recovery, which we think is unsurmountable. On the 31st day of January, 1870, the state of Missouri by legislative enactment (Laws Mo. 1870, p. 355) gave its consent to the purchase of this property by the United States. The essential provisions of this act are, in substance, as follows: (1) The consent of the state is given to the purchase by the l7nited States of a piece of land in Kansas City, not exceeding one acre in quantity, on which to erect a building for the accommodation, &c., of the United States courts, post-olfice, internal revenue, and other government offices. (2) Jurisdiction -is given to the United States over this land when purchased, so as it shall use the same, subject to the right. of entry by the state authorities for the pnrpose of executing civil and criminal process. Then follows section 4: "The jurisdiction hereby ceded shall not vest until the United States shall have acqUired the title to the land by purchase or grant, and so long as the said land shall remain the property of the United States, when acquired as aforesaid, and no longer, the same shall be an<1 contilJlle exonerated from all taxes, assessments, and other charges which may be levied or imposed under the authority of the state." So the sovereign-the local state government-consented to this purchase by the superior government before it was made, and covenanted on its part that, when the United States should acquire the title of the owner, the jurisdiction of the state should cease over the property, and that of the United States should attach, with the single reservation of the right of entry for service of legal process. Then follows the covenant of assurance that, whenever the state obtained such property by purchase or grant, the property thenceforth should be forever "exonerated from all taxes, assessments, and other charges, which may be levied or imposed under the authority of the state." The taxing power is the attribute of sovereignty, and the exercise of the highest jurisdiction. As it is a power to be exercised or forborne at the will of the sovereign having jurisdiction, it follows logically that the sovereign may cede away such right, and release the burden. And when the grant has been accepted by the general government, and the conditions of the purchase have been fully v.39F.no.16-57
vol. 39. such grant bepomel? a solemn compact, which the general government would' not the state to violate. The term" exonerated" was, presumably; employed in its ordinary acceptation: "to be reJieved of' as a charge; to be 9iScharged or exenlpted." Be the contenof plaintiff's counsel correct, that the lien of' tAe city government on this property, so far as the pwnel' and all other persons were concerned, attached on the 1st, day of Jant:l,ary, 1879, yet under the city charter begins on the third Monday in April, (section 4, art. 6) the fiscal which in 1879 was the 21st day of April. The assessment is made between the 1st day of January and, the third Monday of April, and is delivered to the council atitR nrSf 1lleeting of the fiscal year. The council then by ordinance to levy taxes for the fiscal year." A copy of this, with the asses'lment books, is delivered to the auditor, who tIlen extends the taxes, and delivers the tax-book t6 ,the collector on the 21. 'From which it is manifest that the 1st day of May. Seetiops taxes for the year 1879, were not levied until after the 9th day of April, and after the United State(3 had acquired title to the property by purchase. The mere fact that the property owned on the 1st day of January became liable to taxes for that fiscal year would not avail for the purpose of taxation, without an assessment and levy. Taxes not assessed or levied can never become 'an 'effectual lien. Heine v. Commissioners, 19 Wall. 659; Greenough v. Coql OJ., 74 Pa. St. 486...,500; Black. TaxTitles, § 43. The state, by the act of cession, covenanted, in effect, that when the should purchase this property it would not thereafter make any levy; and iithe state itself had proceeded as did the city to make a levy for the purpose of taxation, after the 9th day of April, 1879, this property would have been exonerated therefrom. The municipal corporation of Kansas City is an integral part of the state. It is but an adjunct of the state power, to aid in carrying out the ends of government. It is therefore no less an action taken by the state when done through the agency of a subordinate municipal corporation. When the superior sovereignty ceded away its right and jurisdiction to make this levy and sale, it necessarily negatived and withdrew the power of its inferior, existing by its cOJ;lsent, and acting as one of its governmental innot. Cooley, Tax'n, (2d Eel.) struments, to do that 82-84; U. S. v. Railroad Co., 17 Wall. 328, 329; O'Donnell v. Boiley, 24 Miss.. 386-388; Van Broc1clin v. State of Tennessee, 117 U.S. 178, 6 Sup. Ct. Rep. 670. Hitherto it seems. to have gone without question that if, after a city had taken steps looking to the enforcement of a tax, the state legislature passed an act exempting such property from taxation, it put an end to the right of the city to proceed. Vcm Brockrin v. State of Tennessee, supra, 175, 176. Moreover, section 8, art. 1, of the federal constitution dedares: "Congress shall have power *, * * to exercise exclush'e legislation in all cases whatsoever * * * over. all places purchased by the consent of the lpgislature of the I?tate in which the same shall be. for the erection of forts. magazines, arsenals, dock-.yards, and other needful buildings."
The act of congress admitting the state of Missouri into the federal Union (section 4) "provided that no tax shall be imposed 011 lands or property of the United States." Congress authorized the secretary of the treasury to purchase this property for such needful buildings. 20 St. U. S.39. Such buildings as were erected by the government on this lot are "needful" in the sense of the constitution, as they are a necessary means "employed by the government in executing its sovereign powers." Fagan v. Chicago, 84 Ill. 227. The moment, therefore, the government acquired this property, its jurisdiction over it became absolute and exelusive, except in the particularofthe reservation expressed in the act of cession by the state legislature; and by the very law of the state's creation and admission into the federal Union its power to impose-to levy-a tax on this property, ceased,-died,-because by the purchase it became "lands or property of the United States." If the right of the state or its subordinate municipality be conceded to proceed to enforce by levy and sale a tax after the acquisition of the title by the government, the legal sequence would logically follow that the state could enter upon this territory, over which it had ceded jurisdiction to the United States, and oust the government officers, its judges, and ministerial officers, and deliver over the propel.'ty to the purchaser, which is precisely what was sought to be accomplished by the institution of this action in the state court. This might produce serious embarrassments and complications, as it is calculated to obstruct the operations of the general government. Such ill-omened results the constitution designed to obviate by freeing such" needful" property, after f\cquisition of title by the United States, from state jurisdiction, process, or interr1Jption, which might interfere ""ith its full enjoyment for government purposes. Railroad Co. v. Lowe, 114 U. S. 525, 5 Sup. Ct. Rep. 995; Van Brocklin v. State oj Tennessee, 117 U. S. 151, 6 Sup. Ct. Rep, 670. Since writing the foregoing opinion my attention has been called to an opinion of .Judge BREWER, of this circuit, deliverfld at Little Rock, Ark., in Martin v. House, ante, 694. The manuscript opinion is before me. The view expressed by me herein is not only entertained by Judge BREWER, but he applied the principle to theinstance of ajudgment creditor who had obtained his judgment lien on the property in the state court before acquisition of title by the government for the purpose of a custom-house, etc. The short statute of limitation prescribed by the city charter for bringing actions of ejectment against such tax purchaser, after deed obtained, it is scarcely needful to say, can have no application to this contention. In the first place, the provision applies only where the tax purchaser is in possession, and the action is brought "against" him. Bpurlockv. Dmtgherty,81 Mo. 171-182; .McReynoldsv. Longenberger, 57 Pa. St. 13-29. Such statutes of limitation do not run against the Nor can it betolerated that the state legislature could enforce an. which required the general government to bring a possessory action (or the recovery of property of which it was already possessed under the protection of constitutional authority. It follows that the issues are found for the defendants. Judgment accordingly.
FEDERAL REPORTER, vol. 39. UNITED STATES SCOTT et al.
September 23, 1889.)
(Circuit Court, N. D. California.
PUBLIC LANDS-CUTTING TUfBER-PAYM:ENT Fon LAND.
A party prosecuted for cutting timber on the public lands under section 2461, Rev. 8t., is only relieved from the criminal prosecution and liabilities provided for in said section 2461 by payment of $2.50 per acre for the land on whicb it is cut. in pursuance of tbe provisions of the act of 1878, (1 Supp. Rev. St. p. 329. $\ 5;) be is not relieved from bis civil common-law liability to the United States as owner of the land for the value of the timber cut. (Syllabu8 by the Court.)
At Law. J. T. Carey, U. S. Atty., ior plaintiffs. J. J. Scrivner and R. T. Devlin, for defendants. Before SAWYER, Circuit Judge, and SABIN, District Judge. SAWYER, J., (SABIN, District Judge, dissenting.) . This is an action to recover twenty-six thousand and odd dollars, the value of lumber manufactured from timber cut on the public lands of the United States, described in the complaint. The third defense set out is, that, after the cutting of said timber, and manufacturing of it into lumber, the defendants were indicted for the offense of cutting the same timber under section 2461 of the Revised Statutes of the United States; that after said indictment, the defendants paid into the court in which it was pending, the sum of two dollars and fifty cents per acre for all lands upon which said timber had been cut, and were, thereby, "relieved from further prosecution and liability therefor," in pursuance of section 5 of the act of June 3, 1878, entitled "An act for the sale of timber lands in the states of California, Oregon and Nevada, and in Washington Territories." 1 Supp. Rev. St. 329. The United States moves to strike out this defense, as constituting no valid answer to the suit, and as being, therefore, irrelevant. On the part of the defendant it is claimed, that section 5 covers not only all criminal prosecutioni'l, and relieves them "from further prosecutions and liability therefor," incurred under section 2461, Rev. St., but, that, it exonerates and relieves them from all civil liability for the lumber cut, or for its value. The United States, on the other hand, claim, that they are only relieved from the penal liabilities incurred under said section 2461, and the question thus raised is the one to be now determined. Section 2461 makes it an offense against the United States to cut and destroy or remove timber from the public lands in the way alleged in the complaint; and provides, that. "any person so cutting timber," shall pay a fine not less than triple the value of the trees cut, or timber so destroyed, or removed, and shall be imprisoned not exceeding 12 months. There is, therefore, a criminal liability created which is to be prosecuted and punished by indictment-the penalty being hoth fine and imprisonment. Nowwhat is the subject-matter of section 5 of the act of 1878? Manifestly, by the terms of the statute, persons prosecuted and the liabilities for which they