auditor, and the sale was held void. By the court: "As the penalties of perjury were intended to be imposed for a false return, it is clear that the oath must be administered by competent authority. If the auditor, at that time, possessed no such power, the list wants an essential requisite, which invalidates the tax sale. The power to administer oaths is incidental to no office except the judicial. It must be conferred by statute, either directly, or by implication, or ministerial officers do not possess it." The court then examine the several statutes of Ohio relating to the power and duties of the county auditor, and thus conclude: "We therefore find no authority in any of these statutes, enabling the auditor to administer oaths, except in the specified cases. The grant of authority in those specified cases, sufficiently implies that he possessed it in no other. The return of the collector, therefore, was not under the securities and sanctions which the law required; and this omission is fatal to a title held under such strict principles as a tax sale, and supersedes the necessity of looking further into the case." The precept, warrant, or list, must contain an accurate description of the lands to be sold, or the sale will be void.1

In Kingman v. Glover,2 which was an action of trespass to try title, the plaintiff having deduced upon the trial a regular claim of title, the defendant claimed a seven years' lease under a sale for taxes. The substantial provisions of the law were, that every person should make return of his property for taxation under oath, that if the taxes were not paid when they became due, the collector was authorized to issue a warrant under his hand and seal, directed to a constable, requiring him to levy the amount of the tax by distress and sale of the delinquent's goods or land, and in case the delinquent failed to produce goods, or point out land, then the constable was required to seize the body, &c. The form of the warrant, as prescribed by the statute, was as follows:

* 258

*"A. B., tax collector of, &c., to

&c.

Whereas

constable,

hath been assessed by me, the

1 Stewart v. Graffies, 8 Serg. & Rawle, 344; Spiller v. Baumgard, 4 La. 206. 23 Richardson, 27.

dollars and

cents, for

subscriber, &c., in the sum of defraying the charges of, &c., which sum the said -hath neglected to pay. Therefore, you are commanded, &c."

The act also provides that if lands are levied on under the warrant, the constable shall advertise and sell an interest "not exceeding the term of seven years." The tax execution in question recited an assessment against "the estate of Mrs. Hammond." This was the only informality in the proceedings, and it was insisted that the warrant ought to express upon its face the name of some person liable for the tax, that the heirs of Mrs. Hammond were so liable in this instance, and their names ought to have been inserted. A majority of the court 1 held the execution valid, saying, "The property, whoever may be the owner, is chargeable for the assessed tax, which justifies a levy and sale, if it be not paid; and no injury can be done, in a case like the present, to any citizen who properly respects his obligations to the State, for the payment of his portion of the common charge of the government, or who exercises the most ordinary vigilance over his property. Very strict and technical adherence to forms should not be required from a class of public functionaries, whose duties are not commonly supposed to require any peculiar qualifications, and the term of whose office is so short and precarious, that few derive a knowledge of its duties from experience. If the process which the tax collectors are authorized to issue, does in substance and effect comply with the provisions of the law, and afford to the owner of property the notice which may be necessary for its protection, formal and technical exceptions may without inconvenience or danger be disregarded." Judges Evans and Wardlaw dissented from this opinion.

*259

The law of South Carolina, under which the decision was made, seems to describe a most rigorous and summary proceeding to enforce the collection of the tax, authorizing even the imprisonment of the body of the delinquent ; the notice of sale is extremely short; and it would seem upon principle that greater strictness ought to be required than in ordinary cases. Who did the estate of Mrs. Hammond belong

1 Richardson, Frost, and O'Neall.

to? Did she die testate or intestate? If the former, who were the devisees? It might be that she made a will and devised her property to executors or trustees to sell, for the benefit of some third person. In the warrant in question, no one is designated as her legal representative. By the very terms of the law and warrant, the tax is a charge upon the person as well as the property of the owner. In the event that no goods or land could have been found, whose body would be liable to seizure under such a warrant? Is the officer at his peril to seize and imprison the right person, under such a vague designation? The same reasons assigned by the court for dispensing with technicality in the form of this warrant, may be applied with equal force to every other proceeding in the enforcement of the revenue laws of every State. It is said that strictness, in this class of cases, is "wholesome discipline;" but the rule laid down in Kingman v. Glover is a bounty upon ignorance, a license to depart from the requirements of the law, and converts every tax collector into a petty legislator-arming him with a dispensing power in cases where it is inconvenient for him to follow the letter of the law. It will not be pretended that even an ordinary execution against "the estate of Mrs. Hammond" could be sustained for an instant. Yet a more lax rule is applied to a warrant to collect a tax, affecting not only the property, but the personal liberty of the delinquent. These reasons detract greatly from the authority of Kingman v. Glover, and sustain the opinion of the dissentient judges in that case. It has already been shown that the deed is not evidence of the authority of the officer to sell, and that the onus probandi rests upon the party alleging the existence of the authority.1

1 Chapters 2 & 3; vide also Doe er dem. Morris v. Himelick, 4 Blackf. 471, note; s. c. 4 Blackf. 494.

CHAPTER XIV.

OF THE DISTINCTION BETWEEN CONDITIONS PRECEDENT AND DIRECTORY REQUIREMENTS.

COURTS do not sit for the purpose of granting favors to parties, but to administer justice to them, according to the law of the land. While this general principle is universally conceded, it has been held that many requirements of a law may be regarded as directory.1 Lord Mansfield remarks, "that there is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament, and clauses merely directory."2 No case, however, attempts to point out what that distinction is, so as to establish a general rule of construction which can be relied on, except in relation to the time within which an act may be done. In such cases, the general rule undoubtedly is, that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as a directory requirement, unless the nature of the act to be performed, or the language used by the legislature, show that the designation of the time was intended as a limitation Where there is nothing * 261

upon

the power of the officer.

1 Mussey v. White, 3 Greenl. 290; State Bank v. Buckmaster, Breese, 133; Vance v. Schuyler, 1 Gilm. 160; Day v. Graham, 1 Gilm. 435; Taylor v. Brown, 5 Cranch, 234; Craig v. Bradford, 3 Wheat. 594; Stringer v. Young, 3 Pet. 320; United States v. Kirkpatrick, 9 Wheat. 720; United States v. Vanzandt, 11 Wheat. 184; Striker v. Kelly, 7 Hill, 9; Allen v. Parish, 3 Ohio, 187; Lawrence v. Speed, 2 Bibb, 401; Hayden v. Dunlap, 3 Bibb, 216; Bealls v. Guernsey, 8 Johns. 52; Wiggin v. Mayor of New York, 9 Paige, 16; State v. Click, 2 Ala. 26; Hooker v. Young, 5 Cow. 269; Marchant v. Langworthy, 6 Hill, 646.

2 1 Burr. 647.

in the nature of the power conferred, or in the manner of giving it, which justifies the inference that the time was mentioned as a limitation, it may be exercised after the day fixed. By a directory statute, it is not to be understood that no duty is imposed to do the act at the time specified, in the absence of a satisfactory reason for not then doing it, but simply that the act is valid if done afterwards; while a peremptory law requires the act to be done at the time specified, and at no other.1 (a) This mode of getting rid of a statutory provision by calling it directory, is not only unsatisfactory, on account of the vagueness of the rule itself, but it is the exercise of a dispensing power by the courts which approaches so near legislative discretion that it ought to be resorted to with reluctance, and only in extraordinary cases, where great public mischief will other

1 People v. Allen, 6 Wend. 486; Pond v. Negus, 3 Mass. 230; St. Louis County v. Sparks, 10 Mis. 117; Walker v. Chapman, 17 Ala. 126; Webster v. French, 12 Ill. 302; Marsh v. Chesnut, 14 Ill. 223; Billings v. Detten, 15 Ill. 218; Thames Manufacturing Co. v. Lathrop, 7 Conn. 550; People v. Peck, 11 Wend. 604; Ex parte Heath & Roome, 3 Hill, 42; People v. Holley, 12 Wend. 480; Colt v. Eves, 12 Conn. 243, 255; Mead v. Gale, 2 Denio, 232; Rex v. Sparrow, Strange, 1123; Rex v. Leicester, 7 Barne. & Cres. 6; see Brown v. Hogle, 30 Ill. 119.

(a) A statute directing a tax-collector to keep property seized four days before advertising, and at the expiration of that time to sell it, giving six days' notice, does not require him to act at the exact expiration of the four and six days. Clemons v. Lewis, 36 Vt. 673.

Where by inadvertence the assessment rolls were not returned to the common council, and the levy not made at the time fixed by the city charter, it was held not to avoid the tax even at law, and still less in equity; there being provision for correction of errors by board of assessors before returning the rolls to the council, and it not being contended that the plaintiff had been deprived of his remedy in this respect. Mills v. Johnson, 17 Wisc. 598.

In New Hampshire, the direction in the tax statutes that the money shall be collected and paid into the treasury within a certain time, is directory merely, and an assessment of the tax after such time is valid. Wells v. Burbank, 17 N. H. 393.

Under the Indiana statute, an omission to deliver the tax duplicate to the treasurer by Oct. 15, as was required by law, does not render the duplicate void. Board of Commissioners v. McCarty, 27 Ind. 475.

In California, where statute provided that "on or before the first Monday of May annually, the board of supervisors of said city and county shall levy the amount of taxes," &c., and the order levying the tax was passed the first Monday of May, but the approval of the mayor, which was necessary to completion of levy, was not obtained till the next day, the tax was illegal. People v. McCreery, 34 Cal. 432.