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March 14, 1823


APPEAL from the Circuit Court for the District of Columbia.

The opinion of the court was delivered by: Mr. Justice Johnson delivered the opinion of the Court.

March 13th.

This cause was argued by the Attorney General and Mr. Key, for the appellants, and by Mr. Jones, for the respondents.

March 14th.

A number of lots in the city of Washington, the property of the respondents, having been sold for payment of taxes, assessed under authority of the appellants, to the use of the city, this bill was filed by the respondents, in the Circuit Court of the District, to enjoin the corporation from executing conveyances to the purchasers.

The allegations on which the claim for relief was asserted, presented to the view of the Court below a variety of irregularities, previous to, or accompanying the sale, which that Court decided to be deviations from the provisions of the law of Congress, authorizing the sale. A perpetual injunction was, therefore, decreed, and from that decree, the defendants below have appealed.

There have been various questions submitted to the consideration of this Court, in the argument, which, with a view to precision, shall be stated in the parties' own language, in their order.

1. The first is, Whether sales of unimproved squares, or lots, in the city of Washington, to pay two years' taxes thereon, pursuant to the 8th section of the act of Congress, passed in the year 1812, entitled, 'An act, further to amend the act for the incorporation of the City,' would be illegal, merely because such squares and lots had not been assessed to the true and lawful proprietors thereof, without any wilful mistake or neglect, on the part of the persons who made the assessment, the assessors having used due diligence to ascertain the true proprietors?

This question, as well as every other in the cause, must find a solution in the provisions of the law which vests the power to sell. Where these are explicit and consistent, there is no ground for adjudication but their literal meaning. That they must be construed strictly, follows from their affecting private rights, and particularly rights of freehold; and that they must be pursued strictly, is the consequence of their being the sole foundation of the powers executed under them.

The 7th section of the Act of Incorporation of 1802, vests in the corporation a very general power to lay and collect taxes; but the next section of the same act limits their power in enforcing payment of taxes to a distress and sale of goods, and contains an express prohibition against subjecting vacant lots to a sale for taxes. As no goods could be expected to be found on such lots, it became necessary to pass this act of 1812, the 8th section of which is in these words: 'That unimproved lots in the city of Washington, on which two years' taxes remain due and unpaid, or so much thereof as may be necessary to pay such taxes, may be sold, at public sale, for such taxes due thereon. Provided, that public notice be given of the time and place of sale, by advertising, in some paper printed in the city of Washington, at least six months, where the property belongs to persons residing out of the United States; three months, where the property belongs to persons residing within the United States, and without the limits of the District of Columbia; and six weeks, where the property belongs to persons residing within the District of Columbia, or city of Washington: in which notice shall be stated, the number of the lot or lots, the number of the square or squares, the name of the person or persons to whom the same may have been assessed, and also the amount of taxes due thereon.' And then follows another proviso, securing to the proprietor, the right to redeem within two years after such sale.

In legislating upon this subject, the corporation has sanctioned an assessment to the owners or supposed owners; and the real state of the question is, whether this is not going beyond the power of sale, as delegated to them by the act of Congress. This again depends upon the question, whether the person 'to whom,' in the language of the clause cited, 'the lots may have been assessed,' can mean any other than the actual owner of such lot.

We think it cannot. It was undoubtedly in the power of Congress to have left what latitude they pleased to the assessor in designating the owner; but if they have confined him to the necessity of determining the true owner, it is not in our power to enlarge his discretion. It may be a hardship upon the corporation, but the legislature only can decide whether that hardship shall be perpetuated or not. It must be observed, that the alternative is one which would put it in the power of the assessor to designate a mere nominal owner, a kind of casual ejector, in every case. Had Congress intended to lighten the labours of the corporation, or their assessor, in this respect, there were very simple means of doing it; they might have sanctioned a designation with reference to the first or last vendee of record. But, it is obvious, that Congress were very jealous of the exercise of this power over the lots of absentees; and, in the previous provisions of this eighth section, they make the right of selling, with reference to the time of advertising, to depend expressly upon ownership; not reputed ownership or assessment: 'to whom the property belongs,' are the words of the law. When, therefore, they afterwards speak of publishing the name of the person to whom the lot was assessed, they must be held to mean, the name of him who was owner at the time of the assessment. This removes many of the inconveniences apprehended from subsequent or fraudulent transfers; and the inquiries remaining to be made by the assessor, will be greatly simplified by the operation of the registering laws of the district. It will seldom happen, that the legal estate does not, in fact, exist in the last vendee of record, or his heirs or devisees. The name of the real party in interest must have been, in the eyes of Congress, the most awakening circumstance of the advertisement required to warn him of his danger.

2. The second question is, whether, where several lots belonged, and were assessed to one person, and two years' taxes were due on every one of them, it would be lawful to sell one of the lots to pay the taxes due upon all, or each lot ...

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