Under the earlier charters of the City of Washington, this Court
decided (
21 U. S. 687)
that where an individual owned several lots which were put up for
sale for taxes, the corporation had no right to sell more than one,
provided that one sold for enough to pay the taxes on all.
In 1824, Congress passed an act, providing
"That it shall be lawful for the said corporation, when there
shall be a number of lots assessed to the same person or persons,
to sell one or more of such lots for the taxes and expenses due on
the whole, and also to provide for the sale of any part of a lot
for the taxes and expenses due on said lot, or other lots assessed
to the same person, as may appear expedient, according to such
rules and regulations as the corporation may prescribe. "
Page 50 U. S. 249
This is not in conflict with the previous decision of this
Court. The discretion given to the corporation is not unlimited to
sell each lot for its own taxes. On the contrary, the words "it
shall be lawful" and "may" sell one lot impose an obligation to
stop selling if that one lot produces enough to pay the taxes on
all.
What a public corporation or officer is empowered to do for
others and it is beneficial to them to have done the law holds he
ought to do.
This was an action of ejectment brought by John Mason in his
lifetime to recover possession of some lots in the City of
Washington held under a tax title.
In the trial of the cause in the circuit court, the following
statement of facts was agreed upon, subject to the opinion of the
court upon it.
"
Statement"
"The plaintiff, to support the issue on his part, made out a
title in one Benjamin Stoddert in all the lots in the declaration
mentioned except lot No. 8 in square No. 44, under the
Commissioners of the City of Washington or the Superintendent of
the Public Buildings in said city, and proved that lot No. 8 in
square No. 44 was allotted to Robert Morris and John Nicholson,
original proprietors of the ground on which the said square was
laid out, in the distribution of the lots in said square between
the public and the proprietors, and then made out a title in the
said Benjamin Stoddert, under the said Morris and Nicholson, to the
said lot No. 8 in square No. 44. It was thereupon agreed that
Benjamin Stoddert was, prior to 18 April in the year 1805, seized
in fee of all the lots in the said declaration mentioned. The
plaintiff, further to support the issue on his part, offered to
read, and read in evidence to the jury, a deed of conveyance of
each of the said lots from the said Benjamin Stoddert bearing date
18 April in the year 1805 to David Peter and James S. Morsell and
to the survivor of them and the heirs of such survivor, in the
words and figures following, to-wit (copied in p. 20); also the
printed articles of association mentioned and referred to in the
said deed (copied in p. 49). The plaintiff also offered to read,
and read in evidence to the jury, the bill of complaint, answers,
and decree, in a certain cause on the chancery side of the said
circuit court for the county aforesaid, in which Henry Alexander
and Mary Air were complainants, and James S. Morsell, and Joseph
Forrest, and others, were defendants; also the report of the
proceedings of James S. Morsell, the trustee appointed by the
decree of said court in the said cause, and of the
Page 50 U. S. 250
sales made by him in virtue of such decree, and the orders of
the said court ratifying the said sales, and a deed from the said
trustee to the plaintiff's lessor, the said John Mason for the said
lots in the said declaration mentioned, bearing date 13 November in
the year 1844 (copied in pp. 32 to 57). The plaintiff also read in
evidence to the jury two receipts signed W. W. Billing, collector,
marked B and C, one for taxes for the years 1826 and 1827, the
other for taxes for the year 1832, on sundry lots therein
mentioned, assessed to the Washington Tontine Company (copied in
pp. 61, 62). The plaintiff there rested."
"Whereupon the defendant, to support the issue on his part,
produced, and read in evidence to the jury, the official assessment
books of the Corporation of the City of Washington for the years
1836 and 1837, and proved that the lots in the said declaration
mentioned, with divers other lots in the said city, amounting to
twenty in number, were assessed for the said years to the
Washington Tontine Company; 'that the said lots, and many others in
the said city, had been so assessed in the books of the said
corporation to the Washington Tontine Company' from the years 1808
down to 1840 inclusive. The defendants also produced and read in
evidence the tax books of the said corporation for the years 1836
and 1837, and proved thereby that the lots in the said declaration
mentioned, and sundry other lots assessed to the Washington Tontine
Company, appeared arranged in columns in the established and
accustomed forms, exhibiting the manner in which said lots were
assessed for those years, the numbers of the lots and squares, the
rate of assessment, valuation of the lots severally, the valuation
of the improvements, and the amount of tax on each lot; that the
lots so assessed to the Washington Tontine Company were entered in
the said tax books for the years 1836 and 1837, in the following
manner (copied in p. 63)."
"The defendant further proved that the tax on the said lots, so
assessed to the Washington Tontine Company for the year 1836, fell
due and was payable on 1 January in the year 1837, and the tax on
the same lot for the year 1837 fell due and was payable on 1
January, 1838; and that on 1 January in the year 1838, there were
two years' taxes due and in arrear on the said lots in the said
declaration mentioned and on the others so assessed to the said
Washington Tontine Company. It is further proved on the part of the
defendant that the collector of taxes imposed by the said
corporation, and who was authorized to advertise and sell the
property liable to be sold in the said city for taxes on
Page 50 U. S. 251
15 September in the year 1838, the taxes on the said lots for
the year 1836 and 1837 being in arrear and unpaid, caused to be
inserted in the national Intelligencer, a newspaper published in
the said city, the following advertisement (copied in p. 64), and
that the said advertisement appeared in the said newspaper once in
each week for twelve successive weeks before the day appointed
therein for the sale of the said lots; that the said advertisement
was erroneous, in that it stated that three years' taxes were in
arrear and unpaid on the said lots, the fact being that the tax on
the said lots for the year 1835 had been paid to the corporation
before the said advertisement appeared; that such error was
detected before the sale, and the lots were in fact sold for the
taxes due and in arrear for the years 1836 and 1837; that in
pursuance of his authority, and according to the tenor of the said
advertisement, the said collector, on 8 December in the year 1838,
set up at public sale, in the Aldermen's room in the City Hall in
said city in the presence of about sixty persons, the said lots so
advertised and assessed to the Washington Tontine Company, and the
said lots, being all the lots so assessed to said Washington
Tontine Company, were severally sold, each for its own tax, and the
said sales were reported and entered on the official sales book of
the said corporation in manner and form following (copied in p,
65), which shows the number of the lots and squares, to whom the
same were assessed, the names of the purchasers, the amount of tax
due on each lot, the expenses of sale, and the amount for which
each lot sold; it was also proved by the said collector, and is
admitted, that the said lots were sold in the order in which they
appear set down in the said advertisement and report of sales."
"It was further proved by the defendant that the said defendant
paid the taxes and expenses on each lot purchased by him at said
sale, and that on 19 May in the year 1841, the said defendant paid
the residue of the purchase money for the said lots bought by him,
with interest thereon, at the rate of 10 percent from 8 December in
the year 1840 to the said 19 May, 1841, and no more, and received a
deed for the said lots from the Mayor of the said City of
Washington on 1 June in the same year, duly executed and
acknowledged, and afterwards recorded, which was given in evidence
to the jury, and in the words and figures following, to-wit (copied
in p. 66). It was further admitted that the said John Mason, the
plaintiff lessor, was one of the original subscribers and members
of the said Washington Tontine Company from the commencement of
its
Page 50 U. S. 252
organization to its dissolution, and received his share of the
assets thereof, and that certificates of stock in said company were
issued by said company to the original shareholders in the words
and figures following, to-wit (copied in p. 70). And that the said
John Mason, the plaintiff lessor, held such certificate for the
shares of stock in the said company owned by him."
"Whereupon, the said facts having been so proved and agreed and
reduced to writing, it was agreed by the counsel for the plaintiff
and the defendant, that a verdict should be entered for the
defendant, subject to the opinion of the court on the facts and
evidence so proved, agreed, and stated, as well on the part of the
plaintiff as of the defendant, and that if the court should be of
opinion from the facts and evidence so proved, agreed, and stated
on both sides that the sale of the lots mentioned in the
declaration so made as aforesaid by the authority of the
corporation of Washington City was a legal and valid sale and that
the defendant thereby acquired a legal title to the said lots, the
said verdict should be entered for the defendant, but if the court
should be of opinion that the said sale was not a legal and valid
sale and that the legal title to the said lots did not thereby pass
to the defendant, that the verdict shall be entered and judgment
thereon be recorded for the plaintiff. Either party to have a right
of appeal to the Supreme Court of the United States upon the above
statement of facts and evidence, so proved and agreed, and the
judgment of the court thereon."
"JOHN MARBURY,
Plaintiff's Attorney"
"W. REDIN,
Defendant's Attorney"
The assessed value of the lots and report of sales, referred to
in the above statement, were as follows:
image:a
Page 50 U. S. 253
image:b
Upon the agreed state of facts, the circuit court gave judgment
for the defendant. The plaintiff brought the case to this Court by
writ of error, and the present plaintiffs in error were his heirs
and devisees.
Page 50 U. S. 256
MR. JUSTICE WOODBURY delivered the opinion of the Court.
Several reasons have been assigned for the reversal of the
judgment in this case, but as we think one of them is well founded,
it is not necessary to examine the others. That one is the sale of
each of the twenty lots, assessed to the Washington Tontine
Company, instead of selling the first two lots only, they having
been bid off for more than enough to pay the taxes on the whole.
The sale of all of them was therefore unnecessary to insure the
collection of all the taxes, and as they brought but little beyond
one-fourth of their appraised value, the sale of all was not only
unnecessary, but a great sacrifice of property.
It is admitted by the city, which defends this action, that the
law authorized the sale of so many lots assessed to the same
proprietor as would be sufficient to pay the taxes on all, and
there to stop. But at the same time it is contended that the law
allowed a discretion to the city to sell each lot for the tax on
each, and that in the exercise of this discretion the sale of all
can be vindicated as legal.
We think otherwise. After careful examination, we are satisfied
that no such discretion was meant to be conferred under the
circumstances of the present case. Though the ancestor of the
plaintiffs in error became entitled to eleven of the twenty lots
sold as early as 1827, and paid the taxes on them for two or three
years, yet he never caused his name to be entered in the city books
as proprietor of them nor obtained any deed of them executed and
recorded so that the city might see the change of title to him on
the records and tax them to him till November 13, 1844. Hence, in
1836-1837, when the taxes now in controversy were assessed, the
city rightfully taxed all these lots to the Tontine Company, and
could sell any of them to pay the taxes imposed on all, against
that company.
Page 50 U. S. 257
The ancestor of the plaintiffs could not complain of that
course, under his own neglect to perfect his title, so as to have
his name, rather than the name of the company, entered on the tax
list as owner of eleven of the lots. Much less does it comport with
reason that the city should on this ground object to its own power
to sell any of those lots to pay the taxes assessed on all, when
its officers had claimed them all to belong to the company, and had
assessed and sold them all as the property of the company.
But independent of this, a discretion to sell all is claimed
under the Act of Congress of 1824. In order to judge correctly
whether there is a good foundation for this discretion, it will be
necessary to examine briefly the history of the legal provisions on
this point and the provisions themselves.
Under the city charter, as amended May 4, 1812. 2 Stat. 721,
§ 8, "unimproved lots," "or so much thereof as may be
necessary to pay such taxes, may be sold" for their payment.
On 15 May, 1820, a new charter was given to the city which
provided that
"real property, whether improved or unimproved, . . . or so much
thereof, not less than a lot, when the property upon which the tax
has accrued is not less than that quantity, as may be necessary to
pay any such taxes, . . . may be sold,"
&c., 3 Stat. 589, § 10.
In 1823, a decision was made by this Court, in the case of
Corporation of Washington
v. Pratt, 8 Wheat. 687, settling the construction
of the laws as existing in 1812 on several points in relation to
the assessment and sale of lots for taxes, and, among other things,
holding on this particular point as follows:
"But if taxes be due by one and the same individual in small
sums upon many lots, and one lot, being set up for sale, produces a
sum adequate to the payment of all, the whole arrears become paid
off, and no excuse can then exist for making further sales."
The Act of May 26, 1824, was then passed, which in some respects
provided anew concerning a part of the points settled in 1823,
where the act or charter of 1820 was similar to that of 1812.
But on the point now under consideration it made a special
provision in these words:
"And be it further enacted that it shall be lawful for the said
corporation, where there shall be a number of lots assessed to the
same person or persons, to sell one or more of such lots for the
taxes and expenses due on the whole, and also to provide for the
sale of any part of a lot for the taxes and expenses due on said
lot or other lots assessed to the same person, as may appear
expedient, according to such
Page 50 U. S. 258
rules and regulations as the said corporation may
prescribe."
See Act of May 26, 1824, § 4.
The city contends that this changed the construction given to
the law of 1812 by this Court in 1823, or rather changed the law of
1820, which was the same in substance as that of 1812, and
conferred a discretion to sell each lot for its own tax, or only so
many of several assessed to the same person as might be necessary
to pay all the taxes due from him.
But it will be seen that the language used in the last act, of
1824, was substantially the same on this subject as that in 1812
and 1820. The words used in the former acts as to a sale of all or
a portion of the lots for the taxes on all had been recently
adjudged by this Court to require absolutely that the latter course
be pursued when a part sold for enough. And Congress, so far from
appearing to wish an alteration of the law in this particular, as
just construed, seem to sanction it by declaring explicitly, as
before, the existence of the power to sell a part of the lots, and
which power this Court had, under all the circumstances, decided
was imperative on the city. The chief difference in this respect
between the acts of 1812, 1820, and 1824 was that, in the last,
Congress used more clear and positive terms than before when
authorizing the sale of a part of the lots for all the taxes, and
added a material change, authorizing them to sell, when "appearing
expedient," even a part of one lot. Evidently, by the sense and the
locality in the sentence of the expression "as may appear
expedient," they confined any new discretion or expediency thus
conferred to the new provision for the sale of a part of a lot.
Was there any reason existing why we should infer that Congress
meant to make any other change than this last in respect to such
sales?
The former provisions for selling only one or more lots, when
enough to pay the taxes on all belonging to the same owner had
existed so long, had been so positively adjudged by this Court to
be imperative, and were so obviously just and necessary to prevent
sacrifices and speculation, that Congress in 1824 might well
entertain no disposition to alter them, but rather to adopt and
confirm the construction given by this Court in the previous
year.
With the knowledge of our construction, like words being again
repeated by Congress, it may well be considered that a like
construction was intended, and was expected to be given to those
words. The only plausible argument which remains to be considered
against the design to make this power to sell only enough to pay
all the taxes mandatory, as it had before
Page 50 U. S. 259
been construed by this Court, rests on the supposed
incorrectness of the general rule of construction, as applied to
the facts here, which holds the expression "may" sell, or "it is
lawful" to sell, in a particular way, to be imperative. But if we
look to the true test of the principle involved in the question, no
great doubt can remain. This general rule may seldom be correct, in
a popular sense, as to such words when used in contracts and
private affairs. But under the circumstances existing here, it is
founded on sound principles and numerous precedents.
The form of expression adopted here, it must be remembered, is
employed in laws, and not contracts, and of course, if a well
established construction had been before given to it in laws by the
courts under certain circumstances, it must be presumed to have
been well known, and intended here under like circumstances. What
are these circumstances? Whenever it is provided that a corporation
or officer "may" act in a certain way, or it "shall be lawful" for
them to act in a certain way, it may be insisted on as a duty for
them to act so, if the matter, as here, is devolved on a public
officer, and relates to the public or third persons.
Thus, in
Rex & Regina v. Barlow, 2 Salkeld 609
--
"Where a statute directs the doing of a thing for the sake of
justice or the public good, the word 'may' is the same as the word
'shall'; thus, 23 Hen. 6 says the sheriff 'may' take bail; this is
construed he 'shall,' for he is compellable so to do."
Carthew 293.
On this,
see further The King v. Inhabitants of Derby,
Skinner 370;
Backwell's Case, 1 Vernon 152-154; 2 Chitty,
251; Dwarris on Stat. 712;
Newburgh T. Co. v. Miller, 5
Johns.Ch. 113;
City of New York v. Furze, 3 Hill 612, 614;
Minor v. Mechanics'
Bank, 1 Pet. 64. Without going into more details,
these cases fully sustain the doctrine, that what a public
corporation or officer is empowered to do for others, and it is
beneficial to them to have done, the law holds he ought to do. The
power is conferred for their benefit, not his, and the intent of
the legislature, which is the test in these cases, seems under such
circumstances to have been "to impose a positive and absolute
duty." But under other circumstances, where the act to be done
affects no third persons, and is not clearly beneficial to them or
the public, the words "may" do an act, or it is "lawful" to do it,
do not mean "must," but rather indicate an intent in the
legislature to confer a discretionary power.
Malcom v.
Rogers, 5 Cowen 88;
26 U. S. 1 Pet.
64; 5 Johns.Ch. 113.
Page 50 U. S. 260
So, in private contracts or trusts, such language may confer a
discretion. 5 Johns.Ch. 113. But in the case of a law and of public
officers, and as to acts affecting third persons, as here, that the
authority thus conferred must be construed to be peremptory is not
only manifest from the above precedents and their analogies, but
has been virtually settled by this Court in the 8 Wheaton, before
cited, on the act of 1812, which, we have already seen, used
language the same in substance as that of 1824 on this particular
point.
The argument that the owner of these lots need not have suffered
by all of them being sold, and at a low price, because he might
have redeemed them, has little force when the same oversight, or
accident, or misfortune, which prevented the seasonable payment of
the tax, is likely to prevent the redemption, and when this
argument, if sound, would apply to any other defect in the sale,
and operate against the force of it, on the ground that the owner
might redeem.
But instead of such loose constructive leniency towards a
purchaser under a special law, it is well settled that where a tax
title is to be made out by a party under such a law, as by the
defendant in this case, it must be done in all material particulars
fully and clearly.
Stead's Executors v.
Course, 4 Cranch 403;
Waldron v. Tuttle, 3
N.H. 340. In the language of some of the cases, it must be done
"strictly," "exactly," "with great strictness."
19 U. S. 6
Wheat. 127;
21 U. S. 8
Wheat. 683;
29 U. S. 4 Pet.
359.
The purchaser, setting up a new title in hostility to the former
owner, is not to be favored, and should have looked into it with
care before buying, and not expect to disturb or defeat old rights
of freehold without showing a rigid compliance with all the
material requisitions of the laws under which the sale was made.
Finally, it tends to fortify the view here adopted, that the
statutes in several states on the subject of such sales allow only
so many lots to be sold as will pay all the taxes against the same
owner, such course being manifestly the most just.
8
U. S. 4 Cranch 403;
17 U. S. 4 Wheat.
81, note.
Judgment below reversed.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia, holden in and for the County of Washington, and was
argued by counsel. On consideration whereof, it is now here ordered
and adjudged by his Court, that the judgment of the said circuit
court in this cause be and the same is hereby
Page 50 U. S. 261
reversed with costs, and that this cause be and the same is
hereby remanded to the said circuit court with directions to award
a
venire facias de novo.
