898
·
,t, I'JiDBBAL
BBPOBTBll.
Washington, and brought his suit against certain stockholders in the circuit court of the United States for the district of Maryland. It is conceded that the case turned upon other matters, and that the question involved here was not necessarily before the court in that case. But Mr. Justice Swayne, speaking for the whole court, in the conclusion of the opinion says: ., The fifty-ninth section directs that ·all suits and proceedings arising out ot the provisions of this act, in which the United States or its officers or agents shall be parties, shall be conducted by the district attorneys of the sev&al districts, under the direction and supervision of the solicitor of the treasury: Considering this section in connection with the succeeding section, the implication is clear that receivers also may sue in the courts of the United States by virtue of the act, without reference to the locality 0/ thei1' personal citizen. ship." . I'
Two years afterwards the late Justice Clifford, in delivering the opinion of ,the same court in the Bank oj Bethel v. Pahquioque Bank, 14 Wall. 401, took occasion, as it would seem unnecessarily, to go (lut of his way to allude to and reiterate the correctness of the rule thus stated. The demurter to the plea is sustained, with c6sts. The defendants have leave to plead within twenty days.
CHICAGO THBOLOGICAL SEMINARY
v.
GAGB.
(Circuit Oourt, N. D. IlZiMi,. May 15, 1882.) L TAXEB-En'o:aOEMEN'i' 01' TO VALIDITY.
The proceeding to enforce the payment of taxes by a sale of the lots Is, ina certain sense, a proceeding in r61fl, against the property, but the owner has a right to be heard at the time the judgment is asked for; but if he fails to appear and make known his objections, he is concluded by the jUdgment. 2. 8AME-JUDGMENT-COLLATERAL ATTAOK,
When a tax-payer hlLll been cited, and has had his day in court to say why judgment should not be rendered against his land, he cannot afterwards attack the judgment collaterally.
David Fales,fot complainant. A. N. Gage, for defendant. BLODGETT, D. J. This bill was1iled on the twenty-second day of April; 1880, to set aside a tax sale, as a cloud upon complainant's "title. The bill alleges that complainant is. owner in fee of certain Jots in this city, described in: the bill; that in 11374 state, county,
CHICAGO TJi[E0I+>GICALSEMINARY V. GAGE.
399
and other taxes, to the amount of $56, were assessed on lots in question, and on the twenty-fourth of September, 1875., at a tax sale by the treasurer of Cook county, the lots were forfeitecl to thElstate for the amount of taxes and costs; that in the year 1875 state, taxes were assessed on the lots to the county, city, and of $117.19; that a large proportion of such levy was illegal, being for items of expenditure by the city of Chicago, for the payment of whicll the city had no right to appropriate money and levy taxes for the payment of the same; and that the amount of taxes for which the lots were forfeited to the state in 1875 was also extended against them in 1875, with the taxes of the latter year, and that at the tax sale for 187,6 the lots were again forfeited to the state; that in 1876 tl;le lots were assessed for the taxes of that year, and the taxes of 1874 and 1875, for which the lots had been forfeited the preceding year, were added to the levy of the latter year; that was entered against the lots for the taxes of 1876, and the back taxes of 1874 and 1875, and on the twentieth of September, 1877, the lots,were sold for such taxes and costs, which amounted to $442.61, and defendant AsahelGage became the pw;chaser; that the time for redemption had expired, bIlt the purchaser had taken out no deed, but was threatening to do so. No irregularity or illegality is charged in the levy of such taxes, and the judgments and sales, except that certain ·of city were illegally levied; that is, that the city appropriation bill and tax levy contained certain items, making about 13 per cent. qf the entire levy for the year 1875, which the city had no right to collect by taxation. Wherefore, complainant claims that the sale is wholly void, and prays to have the same set aside as a cloud upon its title. To this bill defendant Asahel Gage has filed a plea setting out the levy of the taxes by the proper authorities of the county,city, and town for the years 1874 and 1875; the non-payment thereof ; the application for judgment and rendition of judgment in eaoh year, and forfeiture of the lots to the state for want of bidders at the .first two tax sales; the levy of the taxes of 1876 and the addition; thereto of the amounts for which the lots had been forfeited the preceding years; the non-payment of these taxes ; the return of the lots as delinquent for the taxes of 1876'; the publication of notice and, other steps required for the purpose of making the tax sale; the rendition of judgment, and the sale in pursuance of sucl:). judgment, and the purchase of the lots by the defendant for the amount of .taxes;, est, and costs adjudged against the lots, and compl,aiJ;l,ant is barred by such judgment fr.omalleging the illegality of ,apa;t
400
FEDERAL REPOBTER.
of such taxes as a reason for and setting aside his purchases. The sufficiency of this plea as an answer to complainant's bill is the only question now raised. A careful examination of the plea shows a full compliance, so far as I am able to note, with all the prerequ{sites to make a valid tax sale. No appearance was mad/;} by the owner of the lots, or anyone in his at the time of the' application for judgment, and no objections to the entry of judgment were made. So far as these lots are concerned, judgment, as shown by the plea,was rendered by default, no cause against judgment being shown; but complainant insists that as the supreme court of this state, on appeal, in a case where the owner of lots appeared before the county court on application for judgment and resisted the sltmeby reason of the illegality of certain portions of the levy, decided such tax to be' illegal and the whole levy vitiated thereby, therefore these items can now be aJtacked collaterally and the sale declared void by reason of the illegality of a portion of the tax. There is no dispute but what a very large proportion of these'taxes was lawfully levied and a charge upon this property. The law provides for a hearing as to the validity of taxes at the time the judgment is asked for. The proceeding to enforce the payment of taxes by a sale of the lots is, ina certain sense, a proceeding in rem l:tgainst the property; but the owner has to be heard, and if he has any reason to urge against the validity of the tax, or any part of it, it is his duty to make it known then. He has his day in court at that time; and, if he fails to appear and make known his objections, it seems to me, upon every principle of judicial action, he must be concluded and barred by the judgment. After the judgment has been rendered, and the property sold in pursuance thereof, the owner ought riot, it seems to me, to be allowed to go behind the judgment and dissect the tax; and if he can find an illegal item of expenditure, for which the municipality has made an appropriation, which has been includ.ed in the levy, to have the whole assessment and the proceedings of judgment and sale declared void. Counsel for complainant relies upon Belleville Nail Co. v. People, 98 Ill. 399, in which it is said that the "judgment of county court for taxes is not conclusive upon the owner of the liability of the land for taxes assessed on it." In the light of the later cases of Gage v. Busse 'and Gage v. Parker, decided by the same court at its recentter:m, I do not think that the force should be given to the expression which I have quoted from the opinion above which is claimed by the learned
OHlOAGO THEOLOGICAL SEMINARY V. GAGE.
401
counsel for the complainant. It must be noted in the first place this case of the Belleville Nail Co. v. People was where an application was made for judgment, and not a case like this, where the judgmeut is attacked collaterally. There the owner of the property appeared on the application for judgment and re3isted the entry of judgment on the ground of the illegality of the tax, claiming that it, being a personal tax, was not a lien. on the real estate which had changed hands; and the expression used in the opinion as to the· binding charaqter of a judgment of this kind upon the owner of the property it seems to me is only a,s it was not necessary for the court to use any such expression in deciding the case as it did. That case was where the ,owner of the'property had appeared and was then resisting the pf judgment; here Mpt still and allowed judgment to be rendered against the property, allowed the sale to take place andtede\Dption' to go by; and now, on the ground that before a few items had crept iritothe· approprili.tion bills of the city which the city had no right to levy a tax for, seeks to go behiM the judgment and set aside the tax sale as wholly void. The supreme court, in the later case of Gdge v. Parker, not reported, has almost in express terms, without referring to the Belleville Nail Co. Case, overruled the principle asserted in that case, It seems where there is no appearance on application for to me that when the tax-payer has been cited into court in the manner required by the statute, and has had his day in court to say why judgment should not be rendered against his land, he should not afterwards be heard to attack the judgment collaterally. This court should, it seems to me, give full force to the judgment of this county court, clothed as that court was with full power to hear and determine every -question touching the validity of those taxes. Every citizen and land-owner knows that his property is subject to the burdens of the government, and is assessed at certain times and under stated forms of proceeding, and if he wishes to resist such charges on the ground of illegal assessment, or for any other reason, he should do it when the court is open to hear him; and if he neglects to appear and show cause against the judgment, and judgment is rendered against the property, I think it must be held conclusIve. . I therefore think this plea sufficiently answers the charges of this bill, and 'an order will be entered to that effect. v.12,no.4-26
4:02 UNITED V.
,BlllPORTEB. "
I"
THOUSAND. EIGHT HUNDRED AND
EIGHTY
BOXES, etc. (District Oourt, D. Oalij()1'nia. June 2, 1882.) (''uSTOMS DUTIEB-SMUGGLING-CONDEMNATION OF PROPERTY SEIZED.
Where a quantity of opium was seized by officers, the burden of proof is on the claimant to show that the property seized was of domestic manufacture and not liable for customs duties; and if he fails to explain the difficulties of the case by the production of proofs within his power to produce, "condemnation follows from the defects of testimony on the part of such claimant." And where the claimant has it in his power to produce the best and most satisfactory evidence to repel the presumption which the law has raised against him, and he omits to do so and contents himself with the weaker evidence, the presumption is ,. turned against him that the highest and best evidence going to the reality and truth of the transaction would not be favorable to'the defence."