83 N.W. 212 | N.D. | 1900
Action by the St. Anthony & Dakota Elevator Company to recover from Bottineau county and from August
That illegal taxes, voluntarily paid, although paid under protest, cannot be recovered, is elementary, and is conceded in this case. But courts have been much perplexed in determining just what facts and circumstances will serve to remove the payment from the voluntary class and make it involuntary. Appellants urge that there never was any seizure of property, and hence no detention, and they rely in part upon the notice served to show this to be true. The notice is certainly inartificial. It is dated December 30th, and declares that “I, August Soucie, as treasurer of the County of Bottineau, North Dakota, will on the 30th day of December, etc., seize and take into my possession the following described property, to-wit.” And after describing the property it continues: “That said seizure was made to satisfy the delinquent taxes,” etc. When construed together, we think it-cannot be claimed for this notice that it shows that no seizure was made, but, rather, it declares a seizure then and there. But counsel contend that, because nothing was done corresponding with what the law requires an officer to do in making a levy under execution or attachment, therefore there never was any distress.. The statute in force at that time (section 1237, Rev. Codes, 1893) declared that if taxes were not paid by October 1st, after they became due; “the treasurer is directed and required to collect the same by distress and sale.” His general tax warrant was the only authority he required. There is an entire absence of all details in direction. But we know of no statute that requires the treasurer, in distraining property, to pursue the same course that must be pursued under execution. We do not think such ever was the law. In 9 Am. & Eng. Enc. L. (2d Ed.) 650, it is said, “No precise act or form of words is essential to a distress, and the distress may be made without actual seizure.” In Eames v. Mayo, 6 Ill. App. 334, the articles were ponderous. They were looked at and listed, and a seizure declared, but no actual possession taken. It was held a good distress for rent by the landlord. In Newell v. Clark, 46 N. J. L. 363, the landlord inventoried the goods, and posted notice of distress upon the premises, and served same on tenant, but did not take possession of goods, but left them in the possession of the tenants who sold them. Held a good distress. And to same effect iñ Furbush v. Chappell, 105 Pa. St. 187. The case of Forth v. Pursley, 82 Ill. 152, involved the legality of a
But this strict rule ought not to apply to cases of seizure or sale, or threatened seizure or sale, of personal property upon an illegal or void tax. The reasons are obvious. The right of possession or the title to the property cannot be tested, once a seizure is made. The sovereign taxing power of the state cannot be thus