Dugan v. Mayor of Baltimore , 1 G. & J. 499 ( 1829 )

Buchanan, Ch. J.

delivered the opinion of the court.

By the 10th section of the act of 1796, the act of incorporation of the city of Baltimore, authority is given to Lthe person or persons appointed to collect any tax imposed, in virtue of the powers granted by that act, to collect the same by distress and sale of the goods of the persons chargeable therewith; with a provision, that if the tax imposed, shall be chargeable on real property, it may be recovered by action of debt, or attachment,, in case no goods can be found liable to be distrained upon.

This suit was brought to recover an amount of taxes, claimed to be due and owing by the appellant, for the year 1817, in virtue of an ordinance passed by the corporation on the 27th of March, in the year 1817: “ To impose a tax on the real and personal property within the city of Baltimore.” It is not contended, that the corporation had not the power by the charter to impose taxes ; nor is it denied that the particular ordinance imposing the tax in question, was passed in pursuance of the powers derived under the charter. But it is urged, that unless the provisions of- the fifth section of the ordinance, directing the collector to deliver to each taxable person, &c. an account in writing, of his assessment and tax, containing the items in words at length, and the amount thereof in figures, before the 1st of June next, after the passage of the ordinance were pursued, no action would lie; and that there being no evidence of a delivery, &c. by the collector to the appellant, of such an account as Is directed by the ordinance, this action cannot be’ maintained, and in support of this proposition, the stat. of 2d Geo. 2d, eh. 23, sec. 23, and the decisions under it are relied on. But the analogy insisted on is not perceived. The language of the stat. of 2d Geo. 2d, is imperative; it provides that no attorney or solicitor shall commence or maintain any action or suit, until the expiration of a month or more, after he shall have delivered a bill of his fees, &c. to the party to be charged, &c. thus expressly declaring, that no action shall either be brought or maintained, until the provisions of the statute have; been first complied with; but that is not the character of this, ordinance; it neither expressly forbids the bringing of a suit before the delivery of the account, nor impliedly, by authorising or directing a suit to be brought, in the event of the tax not being paid by the time prescribed. ■ It has no relation to the bringing of a suit, but only to the summary inode provided by the charter of collecting the tax by a distress and sale of the goods. It is seen that by the 10th section of the charter, the person appointed to collect the taxes, imposed by the corporation, is impowered tó do so by distress and sale of the goods of the persons chargeable with them. , The 4th section of the ordinance provides for the appointment of a collector. And the 5th section, the office of .which is to prescribe his duties, after providing that he shall deliver to each taxable person, an account of his assessment and tax in writing,, on or' before the first of June next, after the passing of the ordinance, goes on to direct him, if the tax should hot be paid by the first of July following, to proceed without delay to recover it, agreeably to the .mode prescribed by the act of incorporation, that is' by distress and sale of the goods, and not by'suit, which he had no authority either by the charter or ordinance to institute. It is true that the collector was not authorised to collect the tax by distress, and sale of the goods, without having first delivered an account of the assessment and tax to the party to be charged,- according to the directions of the ordinance, who.was entitled to that notice, before his property could be proceeded against in the summary mode provided by the charter, and without such notice his property could not be distrained upon and sold. But though his goods would be protected from distress and sale by the collector, it would not therefore follow, that he could not be sued by • the corporation for the amount of the. taxes due. His liability to be sued or not, in no manner depended upon the diligence or negligence of the collector in the discharge of his duty, as prescribed by the fifth section of the ordinance, which has no relation to that subject.

In the Mayor and City Council vs. Howard, 6 Harr. & Johns. 383, it-was decided by this court in relation to the 10th section of the act of incorporation;- that the giving a remedy by distress or action of debt, was cumulative only, and did not take away the. action arising by implication, on the legal obligation to pay a claim created by law. The tax for which this suit was brought was imposed by virtue of that act, the imposition and assessment of which created the legal obligation to pay, on which the law raised an implied assumpsit, independent of the notice required by the fifth section of the ordinance, as a foundation for a summary mode of recovery, and unaffected by the omission of the collector to do his duty—which omission (if an account was not delivered as required by the ordinance,) though it caused the loss of the right to collect the tax by distress and sale of the goods, left the right to recover on the original implied assumpsit unimpaired—an assumpsit raised by the law, on the imposition and assessment of tile tax, and not to arise on the delivery by the collector of an’ account of the as- • sessment and tax.

judgment affirmed.