Rhoads v. Given ( 1876 )

The Court:

We think the legal definition of the word levy, both as a verb and a noun, given by Mr. Webster in his dictionary when employed in relation to a public tax has reference rather to the collection than the assessment of it. But when we turn to our own statute establishing the constitution and defining the general powers of the levy court in each of the counties, we find there are certain’ provisions in it which we think clearly and conclusively indicate the sense in which the legislature used the term levied in contradistinction to the term imposed in the act now under consideration. One of the law definitions of the word levy given by Mr. Webster, is “ The taking or seizure of property on executions to satisfy judgments, or on warrants for the collection of taxes; a collecting by execution.” The provisions in our general statute to which we have before referred are in the 17th and 18th sections of it, the first of which provides, among other things, that “ the levy court in each county shall sit as a court of appeal on the first Tuesday of March in every year, and on such days and times thence next in said month ensuing as it shall be necessary to adjourn to, and shall examine the assessments returned by the assessors, and the corrections thereof and additions thereto that may have been made, and shall receive, hear, and determine appeals against the same.” Rev. Code 62. And the second of which provides also, among other things, as follows : “ And the said court shall on or before the first Tuesday of April in every year cause to be issued to the collector of each hundred a duplicate of the assessment list of the hundred of which he is collector, with a warrant thereto annexed under the hands of two or more of the levy court according to this form: ‘We command you that you collect from the several persons named in the duplicate annexed for their poor, road, county, etc., taxes, etc., etc., etc., and if any person named in said duplicate shall not pay the said rates in ten days after you have demanded the same, we command you in such case that you levy and make the said rates or the part thereof remaining unpaid, with lawful costs, in the manner prescribed by law.’ ” Rev. Code 63, 64. And that will be found in chapter eight of the revised statutes in relation to collectors which makes it the duty of the collector, if any person shall fail to pay to him in ten days after demand the whole or any part of his tax, to levy and collect the same with costs, by distress and sale of his personal property, ten days’ notice of such sale to be given by advertisements posted in four of the most public places of the county, two of which must be in the hundred of the collector. But if the owner of any real estate shall not reside in the hundred or shall be a minor, or shall fail to pay the tax thereon in ten days after demand, it shall be the duty of the collector to levy and collect the same with costs by distress and sale of the personal property of the tenant thereof if payment be not made by such tenant in ten days after demand by the collector, the like notice of such sale to be given by advertisements as before provided. Or if the collector shall not be able to find personal property of taxables or their tenants sufficient to pay the taxes against such taxables he shall have power after the first day of September next following the date of his warrant to levy and collect such taxes from the lands and tenements of such taxables. And then follow several other special provisions for the collection of such taxes by him out of the lands of such taxables, with the order in which they are to be pursued by him under the command and authority of his warrant to levy and collect the taxes committed to him for collection. Rev. Code, secs. 11, 12, 13, p. 88.

And it is worthy of remark that in each of these sections of the statute last referred to, whenever provision is made for the collection of them by the summary process of legal execution without suit or judgment, with which power and authority every such tax collector is expressly invested by law, the terms employed invariably are, “ it shall be his duty to levy and collect the same, with costs, by distress and sale of the personal property of every defaulter made subject to such execution process,” and which, in the uses of the law at least, is unquestionably the most appropriate and correct sense in which the term levy, either as a verb or a noun, can be employed when it is thus applied, for in its legal application to process of execution it has no exact synonym in any other single word in our language. And as these statutes are all in para materia, the meaning of the phrase as employed in the act of March 15th, 1875, we have no doubt is that the tax in this case should have been duly levied in some one of the methods prescribed in the provisions of the other statute to which we have referred, on the personal or real property of the owner and taxable in question before his real estate bound by the mortgage had been converted into personal estate by the sale of it under the process of levari facias upon it by the sheriff, in order to give the claim for the county tax against him in the hands of Given, the collector, a priority of lien upon said real estate over that of the mortgage. We therefore order the rule in this case to be made absolute.