93 Ala. 494 | Ala. | 1890
— The equity of the bill involves the authority of the tax-collector to levy on and sell shares of stock in a private corporation, for the payment of the delinquent taxes assessed against the owner. The authority is claimed under sections 540, 1669, and 1673 of'the Code.t Section 1669 declares: “Shares or interests in the stock of private corporations are personal property, transferrable on the books of the corporation in such manner as is required by the by-laws, or by the rules and regulations of the corporation.” Section 540 requires the tax-collector to proceed without delay, after the first day of January oí each year, to levy on personal property of delinquent tax-payers for the payment of their taxes, and to sell the same after having given the notice prescribed by the statute.
Thoügh the modern decisions have relaxed to some extent the strictness of the earlier common-law rules respecting levies on personal property, still, as a general rule, it is essential to a valid levy that the officer have a view of the property, and assume dominion over it, or bring it under his control, by such acts as would constitute him a trespasser but for the protection of the process; and so that he may have it present on the day, and at the place of sale, for delivery to the purchaser. — Abrams v. Johnson, 65 Ala. 465; Goode v. Longmire, 35 Ala. 668. Shares of the stock of a corporation are intangible, and incapable of manucaption and delivery; the officer can not take possession or control for the purpose of a sale, and consequent delivery to the purchaser; so that, at common law, being considered mere choses 'in action, they were not subject to levy and sale under execution. The de
The argument is, that as the statutes declare corporate shares to be personal property, and require the tax-collector to levy on any personal property of the delinquent tax-payer, without providing any mode in which such levy may be made, he is authorized to make the levy, as nearly as practicable, in the manner prescribed for levying executions. Section 1673 provides: “The shares of stock are subject to levy and sale under attachment or execution, as other personal property; and the levy may be made without the officer having or obtaining possession of the certificates, by indorsement on the attachment or execution, stating the number of shares, or other interest, on which the levy is made, and giving notice thereof to the custodian of the books of transfer” [in the'
The statute being in derogation or modification of the common law, its operation should not be extended beyond what is expressly declared, or fairly implied to give it full effect. By its terms, shares.of stock are made subject to levy and sale under attachment or execution, eo nomine, and the levy is to-be made by indorsement on the writ, stating the number of shares, or other interest levied on. The assessment book, examined, corrected and properly certified, is, under the revenue laws, the collector’s warrant or authority to levy on and sell personal property. For this purpose, no execution is requisite, and no provision is made for the issue of any. Not holding an attachment or execution, it is impracticable for the tax-collector to comply with the requirement that the levy be made by “indorsement on the attachment or execution.” To constitute a valid levy under the statute, all its requirements must be substantially complied with. The levy must be made in the manner prescribed by the statute, or it and the sale thereunder are unauthorized and void. — Blair v. Compton, 33 Mich. 414. The property subject to execution on judgment is not necessarily the same subject to levy and sale for taxes. This must be determined by the statute. — Cooley on Tax. 441. The provisions of section 1673 are not susceptible of adaptation to a levy and sale on shares of stock by the tax-collector.
It does not result from this conclusion, as counsel seem, to suppose, that corporate shares are allowed to escape subjection to liability for the payment, of taxes; other remedies are available.
Affirmed.