18 W. Va. 441 | W. Va. | 1881
announced the opinion of the Court:
The question involved in this case is, whether an attachment in equity of the lands of a non-resident in this state brought in 1875 to enforce by sale of land the payment of township school-taxes assessed on land in 1867, 1868 and 1869, can be sustained, when the taxes remain unpaid, and no other steps have ever been taken to collect them, and the lands have never been returned delinquent.
A municipal tax in its essential characteristics is not a debt or in the nature of a debt in its mode of collection and enforcement. It is an impost levied by the authority of the government on its subjects for public purposes. It is not founded on contract, but operates in invitum. (City of Camden v. Allen, 2 Dutcher’s Rep. 398; Peirce v. The City of Boston, 3 Mete. (Mass.) 520.) A debt universally bears interest, while a tax never carries interest, except when expressly given by statute. (Hashel v. Bartlett, 31 Cal. 281.) It follows, that unless the statute expressly or by fair implication authorizes a suit to be brought to collect a tax, it cannot be collected in this manner. (City of Camden v. Allen, 2 Dutcher 399; Shaw v. Peckett, 26 Vt. 482.) For like reason a debt is the subject-matter of set-off and is liable to set-off, but a tax is neither; and no right of action exists for taxes except in specified cases, and they do not partake of the nature of judgments and cannot by suit be turned into judgments, unless this be authorized expressly or by fair implication by statute-law. (Pierce v. The City of Boston, 3 Metc. 520.) So a statute abolishing imprisonment for debt does not prevent imprisonment for the non-payment of taxes. (Appleton v. Hophins,
It is true, that cases have been decided, where it has been held, that the imposition of a tax created a legal obligation to pay, on which the law raised an assumpsit, notwithstanding the statute gave another specific remedy; and on this implied assumpsit an action at law would lie, (Dugan v. Baltimore, 1 Gill & J. 499; Baltimore v. Howard, 6 Har. & J. 383; State v. Steamship Company, 13 La. An. 497; Dunlap v. County, 15 Ill. 9: Ryan v. County, 14 Ill. 83); but these decisions are against both reason and the decided weight of authority. It would follow therefore, that taxes are not a lien upon lands, on less made so by express language of the statute or by fair implication from the statutory language. (See Hine v. Levee, 19 Wall 655; Philadelphia v. Creble, 38 Pa. St. 339; Allegheny City’s Appeal 41 Pa. St. 60.)
When a municipal tax is declared to be alien, and no mode ■of collection is prescribed by the statute, and no power to collect by sale exists, such lien may be enforced in equity by the mnnicipal corporation instituting the suit, but such a suit to enforce such a lien could not be brought by an assignee of the municipal corporation, for though a lien for a debt may be enforced in equity by an assignee of the debt, yet a tax is not a debt, and the right of the municipality to bring such a suit in equity is a purely statutory right, which must be either expressly given or be given by fair implication, and when given can be exercised only by the municipality and not by its assignee, (McInerny v. Heed, 23 la. 410.) It would seem necessarily to follow, that though a municipal tax was expressly declared by statute to be a lien, yet if a specific mode be provided, whereby the land may be sold to satisfy
The plaintiff therefore in this case can not enforce the payment of these school-taxes, which are unpaid, by this attachment and suit in equity to enforce the lien he claims on the defendant's land, unless the statute-law gives him a right to this mode of enforcement expressly or by fair implication. Taxes for free schools were unknown in Virginia except in a few counties prior to the war. When the state of West Virginia was formed, the people of the state with few exceptions were unused to a free school system. When it was introduced as a general system for the first time, at the time West Virginia was formed, it was natural, that the legislature should for some years make the collection of the township free school taxes as little stringent as possible consistently with the support of free schools. Accordingly until the passage of our Code, which took effect April 1st, 1869, the lands in this state were clearly not intended to be made liable in any manner to the payment of these township school-taxes. The laws before the passage of our Code provided for their collection by distress and by the garnishment of the debtors of the delinquent tax-payers and in no other manner. There is nowhere in our laws any authority to collect them by suit, or anything from which such authority could be implied; nor was there any provision before the passage of our Code, whereby land was in any way made liable to their payment; nor were they declared liens upon the land. That they were to be collected by distress and garnishment of debtors of the delinquent tax-payer, will appear from the Acts of 1865, page 67, section 39 of chapter 71, passed February 24th, 1865, in connection with chapter 131 of Acts of 1863, page 228, sections i, 4, 5, 9, 10, 11 and other sections of Acts of 1868, chapter 176, page 244. '
It is claimed, that section 13 of chapter 89, page 99 authorized the collection of school-taxes by suit; but it is clear,that it does not. It simply authorizes to be collected by suit all moneys and penalties due a township, that is obviously all
The decree of the circuit court sustaining the demurrer to the bill and dismissing the bill at the plaintiff’s cost was therefore not erroneous, and must be affirmed with costs against the appellant and $30.00 damages.
Decree Affirmed.
