Edward N. Dickerson, Respondent, vs. Jane Y. Acosta, Appellant, 15 Fla. 614

RANDALL, C. J., delivered the opinion of the court. This is an appeal from the judgment of the Circuit Court for the county of Nassau, in an action for the recovery of a lot of land in Eernandina, brought under the code. The answer admits that appellant was in possession at the time of the commencement of the action, and alleges that she has been in the peaceable possession, under an adverse title, for upwards of seven years prior thereto. The cause was tried before the Judge, without a jury, and judgment was rendered in favor of plaintiff, from which appellant took an appeal.

The plaintiff having shown the evidence of his title, the defendant, appellant, produced a certificate of sale by the United States Direct Tax Commissioner’s for the State of Elorida, in January, 1865, under

an act .of . Congress, providing for the collection of direct taxes in-the insurrectionary States. ■ ■< The Judge held that the certificate, as shown by the evidence introduced by, the plaintiff, was void, for several causes stated by him indiis findings. . . - . - It is insisted by-counsel for appellant That 4he “ court erred in considering the title deeds and right of possession of the plaintiff in the land in question, anterior to the tax assessment and sale of the property by the United States Direct Tax Commissioners, in 1865, because- prior to said assessment and sale the title to the lot in question had become forfeited to the United States, under

section é of the Act of Congress, approved June 7, 1862.” ' Counsel refer to the opinion of this court in Billings vs. Stark, 15 Fla. 297. "We discover nothing in the opinion of the court in that case to sustain the point here made. In that case the plaintiff claimed title by virtue of a tax certificate signed by a majority of the Board of Commission-' ers, and it was held that such certificate was prima, faoie evidence of title in the purchaser, and that the title was not overcome on the part of defendant by evidence of a former title and- possession anterior to the tax sale.

There was some testimony in that case tending to show certain irregularities in the assessment and sale; but it was not considered sufficient to impeach the certificate of sale, and upon this subject we said that “ the defendant must defeat the plaintiff’s case by showing that the assessment and sale were not made in conformity to law ; that the property was not subject to taxes, or that the taxes had been paid previous to sale, or that the property had been redeemed according to the provisions of -the Act of Congress; ” and that “ the testimony as to the non-concurrence of the third commissioner in the assessment, notice and sale, as given in the record, doe® not invalidate the proceedings.” There was nothing in the decision in that'case which precluded or denied the right to inquire into the question of the legality of the proceedings of the Tax Commissioners anterior to the sale for the nonpayment of taxes. , ■ \- Counsel also, insist, in argument, that the act of Congress relating-to. the collection .of direct taxes in insurrectionary districtfij' aJR5lo'.lhc,<rproc.ée,díngs j pf ¿the. .officers- .appointed to caríjyithiafiláct.inteiffcstiA^ére' no.t merely in their,..operaitifiB and purpose measures of revenue, but were auxiliary-to-the' belligerent operations of the government of thé-’ United' States in suppressing rebellion and reducing-rebellions-citizens to obedience, &c.; and that by the terms of-the act,-' in; ease of the non-payment of the tax within sixty days ’ after assessment, the title to the property taxed “ forfeited'to the United States.” (See Sections 2-3--4.j The Supreme-.

Court of the United States, in Bennett vs. Hunter, 9 Wallace, 326, has construed the act in question-to'-'be' am act: to raise revenue, primarily, by collecting- ■' taxes' upon) lands, and incidentally, in some respects,' to the suppression, of rebellion; but that there was no effectual-forfeiture-'of title until after a sale, and the sale would be invalidated -by redemption.

There is nothing in the act which looks-tb'-the,giving effect to the principle of the ancient law of forfeiture, Again, it is insisted that the courts-of this'State cannot (gd behind the acts of the United States Tax Commissioner's "to-inquire into their regularity or- validity, by reason of-the sixth

Section of

Article XV of the Constitutionj '-whieb reads as follows : . .. - . •<; “All proceedings, decisions, or actions accomplished-by “ civil or military officers acting under anthori-ty-of fh'eUni- “ ted States subsequent to the 1-Oth day of January, A:fDr “ 1861, and prior to the final restoration of thé-: State " to/the-government of the United States, are -hereby declared-yalid “and shall not be subject to adjudication in'¡the'(courts' of this State,” &c. - '- - 'r . icm-Vv’-’u ;ul' It is contended that this'.provision was 'intended -t5 close the door to all inquiry into the legaliby’’Of-: the- aCte'-of officers of the United States, civil or-' militáry^ -andifh'at whatever was done by:-them- within-the scope' Of bMci'aNah-*tion is legalized and must be accepted as válifi-i>' lo tóam^q - If this constitutional provision-is construed^aU is&i&f&oi' legislation, w-heréby theproper-ty'of'6né'i's-sOught‘tO¡be'tfansJ. ferred'to-another otherwise than-ffiy: dtfdréoufáe^0f¿l^wi;uifeife void -by ;;the •Constitution- óf- dh©--Umite#St&tes.i ¡2thfeypr<0'j vision is construed to be a judicial determination of the rights of the parties, it is equally void for the want of power in the convention of the people who adopted it to ■determine the rights of parties who were not before the tribunal, and who had no notice of the contemplated adjudication.

This general principle was sufficiently illustrated by this court in McNealy vs. Gregory, 13 Fla., 417. But we apprehend that this clause of the Constitution is susceptible of a legitimate construction, and that it may be effectual to promote the end sought by the convention to be attained.

As we understand it, the “ proceedings, decisions or actions accomplished by the civil or military officers acting under the authority of the United States,” which are ** declared valid,” are such acts and decisions as were authorized by the military power of the United States, or by the effective acts of Congress, notwithstanding any law of the State in contravention thereof, the intention being to recognize the civil and military authority of the United States during the period of the war as paramount; and the provision that these acts and proceedings “ shall not be subject to adjudÁoabion in the courts of this State,” is a prohibition to such courts against taking cognizance of any suit or proceeding for the object and purpose of reversing or setting aside such acts and proceedings,'as, for instance, the reversing or setting aside the judgment of a military court, or reversing or annulling any act of the Direct Tax Commissioners, or other officers, by a judgment or decree of the State courts directed against the proceeding itself.

This suit, however, was not brought for the purpose of setting aside or “adjudicating” any act or decision of the "tjnited States Tax Commissioners, but to recover possession of land. The defendant brings forward his tax certificate as evidence of his right of possession, and the question before the court was as to its admission as evidence, and the court decided to admit it.

If the term “ adjudicate,” ,as used in the Constitution, means to decide upon its effect as evidence, then the court should, in obedience to the Constitution, have refused to receive or to reject it, a proposition which illustrates its own absurdity. If it be contended that the prohibition contained in the

section of the Constitution referred to is intended to prevent an examination into the truth ■ of the contents of the tax certificate, to ascertain whether, in fact, any tax was levied by authority of law; whether, in fact, any notice of the levying of the tax was given, or that the owners of property had an opportunity to pay it; whether, in fact, a sale was made in the manner required by law; whether, in fact, the entire paper is false and fraudulent, we must hold that we cannot sanction any such construction of the Constitution.

Appellant contends and assigns for error that the court erred in considering the testimony introduced by the plaintiff for the purpose of affecting the regularity and validity of the sale otherwise than to show that the property was not subject to taxes, or that the taxes had been paid, or that the property had been redeemed according to the provisions ■ of the act of June 7, 1862. The plaintiff was permitted to show certain facts and1omissions which occurred prior to the sale, and the court considered such facts and decided thereon adversely to the defendant.

Section 7 of the act provides that the certificate of sale by the Direct Tax Commissioners “shall be received in all courts and places as prima facie evidence of the regularity and validity of the sale, and of the title of said purchaser under the sameand further, the

section concludes as follows : “ And provided further, That the certificate of said commissioners shall only be affected as evidence of the regularity and validity of sale by establishing the fact that said property was not subject to taxes, or that the taxes had been paid previous to sale, or that the property had been redeemed according to the provisions of this act.” Yery generally it has been held by the courts of various ■States, and -by the Supreme Court of the United States, under the various statutes relating to tax sales, that a deed given upon a sale for the non-payment of taxes was not sufficient evidence of title, but only of the fact of sale, and that proof of the regularity of the anterior proceedings devolves upon the person who claims title under the collector’s sale.

To divest an individual of his property against his consent, every substantial requisite of the law must be complied with, and no presumption can be raised in behalf of a collector who sells to cure any radical defect in his proceedings. (Ronkendorff vs. Taylor, 4 Peters S. C. 349; 4 Cranch, 403.) And every prerequisite to the exercise of the power must precede its exercise. (Thatcher vs. Powell, 6 Wheaton, 119; Williams vs. Peyton, 4 Wheaton, 77.) In a case decided in 1868 by Mr.

Justice Miller, arising out of a sale by the United States tax-commissioners for Arkansas, he says: “Nothing is better settled in the law of this country than that proceedings m pods for the purpose of divesting one person of title to real estate and conferring it on another, must be shown to have been in exact pursuance of the statute authorizing them, and that no presumption will be indulged in favor of their correctness.” (Schenck vs. Peay & Bliss, 1 Woolworth’s C. C. R. 175.) The language of the 7th

section of the act of June 7, 1862, however, appears to shift the burthen of proof of the regularity of the anterior proceedings upon the party who attacks the certificate of sale. Its language is, that the “ certificate shall be received in all courts and places as prima fade evidence of the regularity and validity of the sale, and of the title of the purchaser under the same.” There can be no constitutional objection to this change of the rule, because the right of the former owner to avoid the sale on account of the non-compliance of the officers with the legal requisites is preserved. The appellant objects, however, that the last paragraph of the

section precludes any inquiry beyond the question -whether the property was subject to taxes, or that the taxes were paid, or that the property was redeemed after sale; and says that the title .to the land is vested in him by means •of the sale if the land was subject to be taxed and the ¡taxes were not paid or the land not redeemed. We cannot assent to a proposition so monstrous as this. It is not doubted that the government may sell -property, for taxes and make a good title to the purchaser. The very -existence-of the government depends upon this power, but in order to do this several things are essential.

There must be a tax lawfully levied, an opportunity to pay it, a default -and a sale, and these several matters must be conducted according to rules prescribed .¡by the legislative authority or -they cannot be exercised at all. The first thing to be regularly done is the levying of a tax authorized by law, which includes the listing, the valuation and the distribution or .apportionment of the proper amount.

If there has been no listing or valuation and no equal distribution of the tax, or if the tax upon the property of one-half the community is put designedly at an unequal proportion to that imposed upon the .property of the other half, can there be no inquiry after a sale into the fraud -and injustice of such proceedings? Is the auctioneer’s hammer made more potent than constitutions and laws, and may the land of one man be transferred to another by force .of

an act of legislation which precludes inquiry ? If such be the purpose of the act of Congress, we have no .hesitation in declaring it of no force whatever. The power of the tax-commissioners to sell lands for unpaid taxes depends upon the appropriate performance by .them of the necessary preliminary steps, and if one be ..omitted the power is equally absent as though every thing had been omitted.

And .if no' tax had ever been apportioned by them, and yet they had made a sale without .notice.and without an opportunity to pay or to prevent the sale, the property would be transferred beyond recovery if this law, as insisted upon, could be enforced. Now, what is the first condition requisite to the levying of this tax? By the 6th

section it is enacted, “That the said board of tax-commissioners shall enter upon the dis charge of the duties of their office whenever the commanding General of the forces of the United States, entering into any such insurrectionary State or district, shall have established the military authority of the United States throughout any parish or district or county of the same.” The testimony of the witnesses, Governor Reed, Dr.

Harrison and Billings, establish the fact that in 1863, when the commissioners commenced their operations in Nassau county, and fixed the amount of this tax and gave the notice that it must be paid in sixty days from January 31, 1863, at their office in Eernandina, there was no assessment for Nassau county, but only for the town of Eernandina on Amelia Island; that only Amelia Island was occupied by Federal forces, the balance of the county or more than four-fifths of it being and remaining under the control of the Confederate military power.

The military authority of the United States from the time of the passage of the act of Congress had not been established throughout the county at the time of the imposition of the tax. The terms “parish, county or district,” were used in the act to designate the municipal subdivisions of the Southern or seceded States, as in Louisiana they are called parishes, in Florida and other States counties, and in South Carolina they were called parishes or districts. The only other territorial subdivisions of the States by the name of districts, were the collection districts of the United States.

The legitimate intention of the act, as we are enabled to understand, was, that wherever the military commander of the United States forces in Florida should establish the military authority of the United States throughout any county in this State, then the tax commissioners should enter upon the discharge of their duties and proceed to levy, and collect taxes; and that until such military authority was established throughout the country so that the citizens could freely pass for the purpose of paying taxes, transacting business and taking care of their property, the tax commissioners had no right or authority whatever to impose taxes.

The condition that the authority of the United States should be established by the commanding general throughout the county or district where taxes are to be levied, is essential to the power to exercise their duties by the tax commissioners. The condition not existing, the right to levy taxes does not exist, for the commissioners could enter upon the discharge of their duties when the commanding general should have rendered the performance of their duties possible throughout the county, and not before.

The fundamental principles of equality and uniformity in the imposition of taxes could not be observed in this instance except by an assessment of all the taxable real estate in the county. It appears that the tax commissioners failed to find any assessment roll or list for the county or the city, and proceeded to make an assessment de, novo. How, then, could an uniform tax be levied upon the property of the county to produce its proper ratio of tax without knowing, as a basis of the computation, the total amount of the taxable property to be assessed within the county ?

This dilemma would have been avoided by deferring the assessment and levying of the tax until the time appointed by the act. The proclamation of the commanding general, announcing that the authority of the United States had been established throughout a county or district, would have been an appropriate signal for the taxing officers to enter upon their duties.

The absence' of such announcement, and the fact, proven by members of the commission and by those who were in military command, that the town of Eernandina was the only place in the county where the Confederate military power was interrupted, leaves no room for doubt that the time for levying the tax in any portion of the county had not arrived according to law, and that the tax levied, under the circumstances established by the record in this case, was levied without authority of law.

The notice that the tax was fixed and must be paid within sixty days, was given, and the time expired before the authority of the United States was so established, and no new notice seems to have been given after such authority was established, without which no sale could after-wards be legally made. This is all that is deemed necessary to be determined for the purpose of disposing of the present case.

The further questions, whether levying fifty per cent, more of tax in one State than was authorized to be levied in another State upon a given valuation of property ; and whether onerous conditions could be imposed upon the owners of property in one State before they would be allowed to pay their taxes, which conditions were not imposed upon the people of other States; and whether an additional sum could be imposed for costs, charges and expenses, without limit, except in the discretion of the commissioners and without express authority of law; and whether the commissioners could lawfully sell lands for taxes upon a day not named in a notice of sale, or on a day to which the sale had not been adjourned; these and other questions embraced in the assignment of errors are superseded by the conclusion we have reached, that the tax imposed upon the property in question was not authorized by law to be levied at the time it was levied, and that any subsequent sale therefor was, therefore, unauthorized and void, and carried no title to the purchaser.

The certificate of sale, under the circumstances, is a nullity. The judgment of the Circuit Court is affirmed.