(232 S.W.) of the alleged defects in their tax deed, and, [The same, not having been redeemed for eiif mistaken in that contention, the judgment ther year, was sold in February, 1918, to should be reversed, nevertheless, because er- appellants by a revenue agent for the amount roneous in that no time was fixed within which plaintiffs should pay the sum adjudged them, and no sale of the land was ordered to satisfy the adjudged lien therefor. [2] It has long been the established rule in this state that a tax sale and deed confer no title upon the purchaser unless the statutory provisions relating thereto have been strictly complied with. Jones v. Miracle, 93 Ky. 639, 21 S. W. 241, 14 Ky. Law Rep. 639; Smith v. Ryan, 88 Ky. 636, 11 S. W. 647, 11 Ky. Law Rep. 128. And this rule was not changed by the enactment of section 4030 of the Statutes, which declares that: "In all suits and controversies involving the titles of lands claimed or held under the deed executed by the sheriff [or auditor] in pursuance of the sale for taxes, the deed shall be prima facie evidence of the regularity of the sale and of all prior proceedings and title in the person to whom the deed has been executed." This statute simply relieved the purchaser at the tax sale of the burden of proving the validity of his deed theretofore borne by him, and requires the owner of the land to allege and prove that the sale, deed, and proceedings leading up thereto were irregular in order to invalidate the deed. Hughes v. Owens, 92 S. W. 595, 29 Ky. Law Rep. 140; Alexander v. Aud, 121 Ky. 105, 88 S. W. 1103, 28 Ky. Law Rep. 69; Wildharber v. Lunkenheimer, 128 Ky. 344, 108 S. W. 327, 32 Ky. Law Rep. 327; Moseley v. Hamilton, 136 Ky. 680, 124 S. W. 894; Collins v. Lane, 151 Ky. 8, 150 S. W. 977; Kentucky Lands Investment Co. v. Simmons, 146 Ky. 588, 143 S. W. 43. In the last-named case the court said: "It is presumed that the steps leading up to the sale were regularly taken, but, if they were not in fact regularly taken, the owner of the land may show this, and the sale is invalid. The statute [section 4030] simply shifts the burden. of proof. The burden now is on the defendant to show that there was some fatal irregularity in the sale. The rule as to what is a fatal irregularity is the same now as under the previous statutes. Hamilton v. Steele, 117 S. W. 378." The land involved herein and two adjoining tracts were assessed as the property of J. C. Arndell for 1914 taxes as a single tract containing 200 acres of land, and, the taxes not having been paid, the whole of same was sold as one tract by the sheriff on December 28, 1914, to the state and county for the amount of taxes due thereon. These same lands were similarly assessed and sold as one tract, but as containing 212 acres on January 31, 1916, to the state and county for the amount of the taxes due thereon for the year 1915. of the taxes, penalties, and costs due under the sheriff's sales, and the auditor on May 15, 1918, executed and delivered to appellants his deed therefor. [3, 4] Of the several alleged irregularities in the proceedings leading up to that deed, we need notice but one, since the judgment canceling the deed must be affirmed because thereof. Appellees properly pleaded, and it is conclusively established by the evidence, that when the sheriff made the sales of this land to the state and county for the taxes due thereon for the years 1914 and 1915, the owner thereof had ample personal property to pay the taxes, and that same was located upon the land sold and could have been found easily by the sheriff if he had made proper effort to ascertain the fact and locate same. This is not controverted by the appellants unless by the testimony of the then deputy sheriff that for one or the other of the two years, and he could not state which one, he went upon the land and had a conversation with reference to the payment of the taxes with some red-headed man whom he thought was a son of the then owner of the land, J. C. Arndell. That this feeble and ineffectual the land before levy and sale of the land for effort to find personalty that was then upon the taxes due by the property owner was not pliance with, the statutes, is at once apparent, since section 4149 of the Statutes, then and now in force, provides that: a real effort to obey, much less a strict com "As soon as any taxpayer becomes delinquent, the sheriff or the collector of the county where the property is liable shall distrain sufficient personal property of such delinquent, if found in the county, to satisfy all taxes, penalties, interest and penalties due. If a sufficient amount of personal property be not found, then he will levy on a sufficient quantity of the delinquent's land for that purpose." To hold that this provision had been strictly complied with and that the levy upon a delinquent's land was justified when, as here, it is proven without contradiction that at the time the delinquent had sufficient personal property in the county and on the land to satisfy all taxes, penalties, etc., due from him would authorize the sheriff to ignore the personal property and sell the land in every case where it was not proven that he had actual knowledge of the existence of the personal property and ownership thereof by the delinquent, and this a delinquent could rarely, if ever, prove satisfactorily. To so construe the statute would defeat its evident purpose that land can be sold for taxes only when sufficient personalty for the purpose could not be found by the sheriff. We are therefore of the opinion that the ap pellees sufficiently established the invalidity | Mitchell, 9 Ky. Law Rep. 813, a manuscript of appellant's tax deed to warrant its can- opinion of the superior court, and Husbands cellation. Numerous such deeds have been v. City of Paducah, 5 Ky. Law Rep. 193, both held by this court to be void for this reason. of which were decided prior and are not reWheeler v. Bramel, 8 S. W. 199, 10 Ky. Law ferred to in any of the four cases from this Rep. 301; Julian v. Stephens, 11 S. W. 6, court cited above to the contrary. 10 Ky. Law Rep. 862; Turner v. Town of Pewee Valley, 100 Ky. 288, 38 S. W. 143, 688, 18 Ky. Law Rep. 755; Allen v. Perrine, 103 Ky. 516, 45 S. W. 500, 20 Ky. Law Rep. 202, 41 L. R. A. 351. A contrary view is expressed in Alexander v. Aud, supra, but the opinion therein reversing the judgment was rested, not upon that ground, but upon the fact that the decision of the lower court relieved the delinquent of all liability for the taxes he had not paid and denied to the state and county a lien therefor upon the land, which is the relief that was granted to appellants herein and to which they were entitled under section 4036, Ky. Statutes. We cannot, therefore, accept as authority the uncalled for expression of opinion in the Alexander Case based as it was upon Smith v. [5] The further contention that the judgment herein is erroneous and should be reversed because no time was fixed for the payment by the appellees of the judgment rendered against them and because the lien adjudged against the land was not enforced by order of sale in the judgment is trivial and clearly without merit, since it is apparent from the judgment itself that appellants could have had entered herein an order of sale to satisfy their lien against the land had they but requested it, at any time after allowing appellees a reasonable time for satisfying a judgment for about $100 which could not have exceeded a few days, and this they may yet do at any time without disturbing the judgment appealed from. Wherefore the judgment is affirmed. (144 Tenn. 320) (232 S.W.) John W. Robertson, of Henderson, for plaintiffs. CHERRY et al. v. KENNEDY. (Supreme Court of Tennessee. June 24, 1921.) fendant. 1. Sheriffs and constables 87-Statute im posing penalty for failure to mark on process day received by officer applies to writ of replevin issued by justice. Galbraith & Mitchell, of Henderson, for de MCKINNEY, J. The plaintiffs, Sallie Cherry and Dug Cherry, instituted this suit in the circuit court of Chester county against Shannon's Code, § 4524, providing that the of recovering the penalty of $125 provided by S. E. Kennedy, constable, for the purpose clerk, justice, or attorney issuing any process shall mark thereon the day on which the same section 4524 of Shannon's Code for failure is issued, and that the officer into whose hands to mark or indorse on a certain writ of rethe same shall come to be executed shall, in plevin the date same came into his hands; like manner, mark thereon the day on which said writ having been issued by a justice of he shall have received it, etc., as originally en- the peace in the case of W. O. Seaton v. acted in 1794 (Acts 1794, c. 1, §- 9), did not Sallie Cherry and Dug Cherry. The folcontain the word "justice." The word "jus-lowing is the only entry made upon said tice" was added in Code 1858, at which time writ by said officer, to wit: justices of the peace had authority to issue writs of replevin. Held that, in an action against constable for failure to indorse on a writ of replevin the date received, recovery could not be denied on the theory that the statute had no application to writs of replevin . issued by a justice. 2. Statutes 241 (1) "remedial statutes" distinguished. "Came to hand and executed by summoning defendant to appear before J. G. Haggard, 18 day of Dec. 1919 at 11 o'clock a. m. "[Signed] S. E. Kennedy, Con." It appears from the agreed statement of facts that Mr. Kennedy received the writ on "Penal statutes" and December 15, 1919, the date of its issuance, and that by oversight he neglected to mark thereon the day same was received by him. No insistence is made that either of the plaintiffs suffered any injury or damage by virtue of the failure of the defendant to note on the writ the date of its reception. The section of the Code relied upon is as follows: Strictly and properly speaking, "penal statutes" are those imposing punishment for an offense committed against the state, but the term has been enlarged to include all statutes which command or prohibit acts and establish penalties for their violation to be recovered for the purpose of enforcing obedience to the law and punishing its violation; but, if the recovery of the penalty by an individual is permitted as a remedy for the injury or loss, the statute is "remedial." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Penal Laws; Remedial Statute.] 3. Sheriffs and constables 152-Act requiring officers to indorse on writ date of receipt remedial. "The clerk, justice, or attorney issuing any process, shall mark thereon the day on which the same is issued; and the sheriff or other officer into whose hands the same shall come to be executed, shall, in like manner, mark thereon the day on which he shall have received it. The penalty for neglect of this requirement shall be a forfeiture of one hundred and twenty-five dollars, to be recovered in any court having cognizance thereof, by any person who shall sue for the same, with costs." Shannon's Code, § 4524, requiring the sheriff or other officer into whose hands process shall come to be executed to mark thereon the The circuit judge sustained a demurrer day on which he shall have received it, and pro- to the declaration and dismissed the suit. viding a penalty of $125 for neglect to be re- On appeal to the Court of Civil Appeals, covered by any person who shall sue for the Justice Wilson dissenting, that court reverssame, is remedial rather than penal in its na-ed the circuit court and entered a judgment ture, the purpose of the act being to give dam- in favor of the complainants for $125, with ages to person injured by the neglect of the sheriff or other officer; consequently, where the failure of a constable to indorse on the writ of replevin the date of receipt caused no injury, there can be no recovery. interest. The case is before us on petition for certiorari. [1] The defendant insists that at the time of the passage of the act in question, to wit, 1794, justices of the peace were without authority to issue writs of replevin, and hence the statute had no application to writs of that nature. Certiorari to Court of Civil Appeals. Suit by Sallie Cherry and another against S. E. Kennedy. A judgment of dismissal was on appeal reversed by the Court of Civil Upon an examination of the original Act Appeals and judgment rendered for complain- of 1794, c. 1, § 9, we find that the word ants, and defendant brings certiorari. Writ "justice," appearing in the Code, was not granted. Judgment of Court of Civil Appeals included, so that the act did not originally reversed, and that of circuit court affirmed. include process issued by a justice of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes peace; but the statute was enlarged and [moned, gives jurisdiction to the court. The the word "justice" added in the Code of 1858, notation of the fact is not essential to its vaat which time justices of the peace had au- lidity." thority to issue writs of replevin. Hence the position of the defendant is not well taken. The real question for decision is whether the statute in question is penal or remedial. If the former, the plaintiffs are entitled to recover; otherwise, they are not. [2] In 36 Cyc. 1180, the author says: "Strictly and properly speaking, penal statutes are those imposing punishment for an offense committed against the state, which, under the English and American Constitutions, the executive of the state has the power to pardon. In common use, however, this sense has been enlarged to include under the term 'penal statutes' all statutes which command or prohibit certain acts, and establish penalties for their violation, and even those which, without expressly prohibiting certain acts, impose a penalty upon their commission. Under this broader definition, penal statutes include not only those in which the penalty is recovered by a public prosecution and inures to the state, but also those permitting a recovery of the penalty by a private individual in an action of debt or qui tam. The true test in determining whether a statute is penal is whether the penalty is imposed for the punishment of a wrong to the public, or for the redress of an injury to the individual. If the statute permits a recovery of the penalty by an individual for the purpose of enforcing obedience to the mandate of the law by punishing its violation, it is penal in character; but if the recovery of the penalty by an individual is permitted as a remedy for the injury or loss suffered by him, the statute is remedial. It is the substance and effect of the statute, rather than its form, that is to be considered in determining whether it is penal. Thus, laws enacted for the prevention of fraud, for the suppression of a public wrong, or to effect a public good are not, in a strict sense, penal acts, although they may inflict a penalty for their violation." [3] Applying the foregoing test to the facts of this case, it is apparent that the statute in question is not penal, because the officer, in failing to mark the date he received the writ, committed no wrong which affected the public, or about which it was in any sense concerned. The statute provides that the justice "shall mark thereon the day on which the same is issued," and the officer "shall, in like manner, mark thereon the day on which he shall have received it." In Elliot & Co. v. Jordan, 7 Baxt. 376, the justice failed to mark on the writ the date of issuance, which it was insisted rendered the writ void. This court held otherwise and said: "That the justice did not note the fact of is suance on the back of the warrant does not affect the validity of the proceeding. The statute is directory to the officer, but the fact that warrant was issued and the party actually sum A case analogous to the one under consideration is that of Parks v. Railroad Co., 13 Lea, 1, 49 Am. Rep. 655, when Parks sought to recover the penalty provided by chapter 15 of the Acts of 1865-66, the second and fourth sections of which are as follows: "Sec. 2. Be it further enacted, that it shall be the duty of each conductor or other employee on any railroad in this state, to announce in loud, distinct words, for each passenger car, the stopping place, station, or depot, or town at which each car or passenger train stops, or shall be detained for any purpose, and also the time such car or passenger train will stop or be detained." "Sec. 4. Be it further enacted, that upon the failure of any railroad company, during any trip of the passenger cars, to comply strictly with any of the provisions of the two preceding sections of this act, then such railroad company shall forfeit and pay the sum of one hundred dollars, recoverable before any court having jurisdiction thereof, one half to be paid to the person suing, and the other half to go to common school fund of the state." The court held the statute to be remedial and said: "The inclination of the courts is, therefore, to construe such statutes as remedial, that is as intended to redress an actual injury with a view to prevent its recurrence, and not as punitive, that is, as intended to punish whether the injury has accrued or not." The court further said: "The intent of the Legislature in the statute before us was to secure certain benefits to passengers on the railroad trains. It was, of course, never intended that a penalty should be incurred if in fact there were no passengers on the train, or in a car of the train in which there was a default. And a failure to call a station at which no passenger intended to get off, or did in fact get off could do no harm, and would be at most only a technical breach of the law. If the statute be construed literally, or as punitive, there would be a penalty even in such cases. Penalties would also be incurred by acts of inadvertence or omissions of negligence although no person was aggrieved thereby. And if each default gave a right of action, and of the Legislature would be lost sight of, and might be sued upon at any time, the purpose the act be perverted and made punitive instead of remedial." If the act of 1865-66 is remedial, certainly the act under consideration cannot be treated as penal, because in the former the public is much more concerned than it would be in the failure of an officer to enter on a writ the date same was received in a private suit between two individuals. We hold that the Court of Civil Appeals was in error in entering judgment for the plaintiffs. The writ of certiorari will be (232 S.W.) granted; the judgment of the Court of Civil | granting a perpetual injunction, defendants Appeals will be reversed, and that of the appeal. Affirmed. circuit court will be affirmed with all costs. (144 Tenn. 197) SLOAN et al. v. CITY OF COLUMBIA et al. (Supreme Court of Tennessee. June 20, 1921.) 1. Statutes 245-Statutes levying taxes not extended beyond clear meaning and construed in favor of citizens. Pitts & McConnico, of Nashville, and Hughes, Hatcher & Hughes, of Columbia, for Sloan and others. Frank M. Thompson, Atty. Gen., for the State. W. J. Towler and Peebles & Forgey, all of Columbia, for City of Columbia. HALL, J. The bill in this cause was filed on December 20, 1919, by J. A. Sloan, Mrs. J. A. Sloan, and George E. Sloan against the Statutes levying taxes will not be extended city of Columbia (a municipal corporation), by implication beyond the clear meaning of the W. P. Erwin, its recorder, B. C. Dedman, its language used; all questions of doubt being re-regular attorney, and W. J. Towler, its spesolved against the government and in favor of the citizens. 2. Taxation 122-Shares of stock in mercantile corporation not assessable to individual shareholders where capital stock assessed al shareholders where capital stock assessed to corporation itself. cial attorney. The purpose of the bill was to enjoin the city of Columbia and its officers and attorneys from prosecuting certain proceedings instituted before the recorder of said city for the purpose of assessing and back-asUnder Acts 1907, c. 602, § 24, providing that shares of stock in any bank, loan, insur- sessing certain shares of stock owned by ance, investment, or cemetery company shall the complainants in J. A. Sloan Company (a be taxed as the personal property of the stock- mercantile corporation), engaged in the wholeholders, but that the assessment of such shares sale grocery business at Columbia, Tenn., and shall be in lieu of any assessment or taxation at other places in the state of Tennessee and of the capital stock or corporate property of in the state of Alabama for the years 1916, such corporation, section 8, subsec. 6, provid-1917, 1918, and for the current year 1919. ing for the assessment of all shares of stock, A fiat for a preliminary injunction was except when the corporate property or cap-granted by Hon. W. B. Turner, circuit judge, ital stock is assessed in lieu thereof, as pro- and an injunction was issued as prayed for vided in sections 21 and 22, covering all cor The defendants answered the bill, and a stipulation was entered into by counsel for the parties with respect to certain facts. •porations except those enumerated in section in the bill. not assessable to the individual shareholders. The construction placed on an act taxing the capital stock of corporations by those charged with the duty of assessing the taxes, in not attempting to assess the shares of stock to the shareholders, though not binding on the court, is entitled to great weight. 4. Taxation 113—Legislature may assess capital stock to corporation itself or shares to shareholders individually. It is within the power of the Legislature to assess the corporate property or capital stock of a corporation to the corporation itself or to assess to the individual shareholders the value of the shares owned by them. Upon final hearing the chancellor held and decreed that the shares of stock owned by complainants in J. A. Sloan Company were not taxable, and therefore could not be legally assessed for said years; and the injunction was made perpetual, and all the costs of the cause were adjudged against the city of Columbia. From this decree defendants have appealed to this court and have assigned errors. The bill alleges that J. A. Sloan Company is a mercantile corporation organized anà existing under and by virtue of the laws of the state of Tennessee, and that the same was organized and incorporated in the year 1903, and that its principal office and place of business has been in the city of Columbia, Tenn., ever since its organization. It is further alleged that ever since its incorporation in 1903 such corporation has been engaged in the wholesale grocery business, with its principal place of business at Columbia, Tenn., and its several branch houses are Appeal from Chancery Court, Maury Coun- located in different counties in Tennessee, to ty; Thos. B. Lytle, Chancellor. Suit by J. A. Sloan and others against the City of Columbia and others to enjoin assessment of shares of stock. From a decree wit, South Pittsburg, Fayetteville, Dayton, and also at Florence, in the state of Alabama; that said corporation was first incorporated with an authorized capital stock of $30,000, which was gradually increased until its For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |