
    The State Ex Rel. Francis Goblet vs. Peter C. Guerry, City Sheriff. Same Ex Rel. Charles H. Simonton vs. Same.
    
      Taxes, Lien of Execution for.
    
    Tlie specific lien for taxes given by the Act of 1843, and the city ordinance of March, 1844, lasts for one year only, and lodgment of execution within the year does not extend the lien. Such execution has its own lien, but that is a lien subject to prior encumbrances.
    BEFORE MOSES, J., AT CHARLESTON, MARCH, 1868.
    The report of bis Honor, the presiding Judge, is as follows:
    “The relators in these cases, seek to prohibit the sheriff of the city of Charleston from enforcing by execution, the collection of taxes imposed on certain real estate which they now hold by purchase.
    “ The executions in the case of ex rel. Goblet, issued in November, 1860, December, 1862, December, 1863, and October, 1866, against one James Armstrong, the former owner of the premises referred to in the suggestion. The relator acquired his title through a sale on 7th January, 1868, made by the master in equity, under the proceedings for foreclosure of mortgage executed by the said Armstrong to Kerr Boyce, on the 22d April, 1852.
    “In the suggestion, ex parte C. H. Simonton, the executions issued against one William E. Sanders, claiming to be the owner of the premises in the years 1865,1866, and 1867, under conveyance from one N, B. Prothro. The relator bought, on the 5th February, 1867, at a sale by the master in equity, ordered for a foreclosure of a mortgage from the said Protliro, under proceedings of the Court, in which James Gadsden, executor of Right. Rev. Bishop Gadsden, and B. F. Smith were plaintiffs, and the said Prothro was defendant. The executions were dated December, 1863, December, 1864, November 15, 1865, and October 1, 1866.
    “ The question made and on which the decision must turn is, whether the executions constitute a lien on the property (in the hands of the relators respectively) after the expiration of one year from the time at which the liability for the tax attached ?
    "The right of a government to levy and collect taxes, is an inherent one. Without full and liberal power to judge of the necessity and extent of the imposition, the means of administering its several departments might be so circumscribed and crippled as to prove unequal to the exigencies to which they might be subjected.
    “ While the authority is not to be denied, yet it is to be remembered, that as the prerogative is one of so high and exclusive a character, it must be administered with a strict adherence to the laws which regulate it, and they who require the citizen to contribute in this way to the support of the government, must be certain that they act in precise, conformity to the law. This requirement is not to be lightly regarded, for'in every question between citizen and State, as the latter cannot be made to respond in damages through the Courts for any violation of rights, it must be held within the limits which is prescribed for its authority.
    “ The ordinances of the city council of Charleston, as to the collection of taxes imposed by it, in. no way differ (save with a slight exception to be directly noticed,) from the Acts of the Legislature providing for the imposition and collection of State taxes. The city arid State laws vary only as to the time to which the assessment is to have relation. In the city the taxes accrue as of 1st of January. The State tax on land (prior to 1866) refers to the 1st day of October as to possession and valuation, and the payment of both (State and city) are required to be made by the 1st of June in each and every year. (City ordinances, Act of March 12,1844, 276 and 278 ; Act of 1788, 5 Stat. at Large, 52; 11 Id. 248.)
    “ Assuming that the twelfth section of the Act of 1788 includes as well taxes to municipal corporations, as to the State, (which may well be doubted,) still it cannot be held, as contended, though a lien may be thereby given on all the property of the person taxed, that it so continues even against such portion of which the title may be afterwards transferred. It is true, that the Act does “ prefer taxes to all securities and incumbrances whatsoever,” and if the property in the cases before me bad remained still as that of the parties, against whom the executions issued, it may be, if free from objection from other causes, the council could require the payment to be made out of it in preference to ‘ all other securities and incumbrances.’.
    “The same Act, however, demands that the payment of all taxes on property sold after 1st of October, in each and every year, to be made by the seller, and thus, in the event of sale, continues the imposition as his debt, while taxes therefore remain a lien on all the other property of the vendor, that so disposed of, is freed and discharged from the liability which had attached on it before the transfer.
    “It is -supposed that the execution creates a lien, and therefore when lodged with the sheriff the property itself is freed. The lien is not created by the execution, but by the imposition and assessment of the tax. The process commonly called an execution is nothing more than a warrant for the collection of the taxes against the party bound to pay. If it could be regarded, as was contended, an execution subject to the provisions and requirements of the Act of 1828, as to renewals, still if it could be brought within that Act, (and I do not hesitate to conclude that it is not within its provisions,) it could acquire no greater efficacy as to its binding power than it had before. ■
    “I feel myself constrained to hold, that where property is sold after the 1st of October, in each year, there is no lien on it in the hands of the grantee or vendee, (except as given by the Act of 1843, to be hereafter noticed,) for the State tax imposed upon the former owner; and such is the ruling in the case of Harth vs. Assignee of Gibbes, (3 Kich. 316,) which I regard directly in point. The Act of 1843, (11 Stat. at Large, 248,) so far as statutes may be looked to as giving legislative construction to those which preceded it on the same subject, shows conclusively what was the law before its passage. The language cannot be mistaken, when it declares that ' notwithstanding any alienation of the property by the owner subsequently to the time when the liability for the taxes attached, the taxes imposed by any tax Act shall constitute specific liens for one year from the time when the liability for said taxes attached upon the owner or proprietor thereof.’ The effect was to enlarge the liability on the specific property, and to retain the lien as against the vendee for one year. The restriction was to this extent, and in no other way affected by the Act of 1788, or any subsequent Act on the subject.
    “As was the State law prior to the Act of 1843, so stood the ordinances of the city in relation to this matter. The council finding that the Legislature, by the said Act, had created a lien on the specific property for one year, notwithstanding it may have passed from 'the hands of the party against whom the liability had attached by reason of the assessment, properly availed itself of the advantage the State had thus secured; and (Act 2d March, 1844, City Ordinances, p. 279,) passed an ordinance in almost the same words, declaring, ‘ that the taxes imposed on lands, chattels, &c., shall constitute a specific lien on the said lands, chattels, &o., for one year, notwithstanding any alienation of the same, by the owner in possession thereof, subsequently to the time when the liability attached on such owner; and the proceeds of sale of such lands, &c., shall be applied to the payment of such taxes thereon respectively, prior to, and in preference of all judgments, mortgages, debts or other liens on the same.
    It might be assumed, that such new provision was entirely unnecessary, if the lien existed beyond the year. It is not to be supposed that the council would divest itself of any rights in so essential a matter, and thus decrease its means of collecting its taxes on property.
    “ The conclusion to which I have arrived works no injury to the council which it cannot guard against by the exercise of vigilance on the part of its officers. It can protect itself by requiring of those to whom it intrusts this important duty the observance of its own regulations, which, if followed, will protect it from the results which proper diligence can always avert.
    “ The fifth section of the ordinance already referred to, on the failure or neglect of any person to pay his assessment when due, declares that an execution shall forthwith issue, and the city sheriff shall thereunder seize, &c., and publicly sell, &c.; and in the event of no property found, the body of the defendant may be arrested, (
      
      )
    
    
      “ If this protecting power had been exercised, the amount of taxes now claimed to be made out of the property of these relators, might, and probably would have been realized irom the party bound and liable. The council failed to avail itself of the remedy it held in its own hands, and third persons are not to suffer from its own derelictions. In one of these cases the laches of the proper officer’s duty to enforce their means of collection involves an amount now equal to one-fifth of the whole value of the property estimated by the price it brought at the last sale. The burden was not intended to be borne by these relators, and it cannot be cast upon them unless the law is so clear that they cannot escape the imposition.
    “It- is ordered, that a Writ of Prohibition do issue under the respective suggestions, to be directed to the said Peter C. Guerry, Esq., Sheriff of the city of Charleston, and all others acting under him, enjoining him and each of them from levying on the property referred to respectively in the said suggestions, or in any manner interfering with the same, for the collection of the sums claimed under the said executions. Let all the papers be filed in the office of the Clerk of the Court for Charleston District.”
    The respondent appealed upon the following grounds:
    1. Because the Acts of the Legislature and the ordinances of the city give a specific lien in favor of taxes for one year; and upon the lodging of execution this lien becomes general and is fixed and continued for the period that executions have by law binding efficacy.
    2. Because the Act of 1788 provides that the taxes imposed by any tax Act shall be preferred to all securities and incumbrances whatever; and when subsequently a lien was created, whether by statute or by execution, the preference was fastened in the shape of a preferred, lien upon the property itself.
    3. Because the Act of 1788 gave a preference to taxes as against the vendor, whereas the Act of 1843, and the ordinances of 1844, give the same preferences as against the property.
    4. Because taxes are vital to the support of government and must have priority over other claims, and the holder of any mortgage or other security on the property may protect himself against the absorption of the property in taxes, by foreclosing his mortgage and selling the property according to law.
    
      Porter, City Attorney, for appellant.
    
      
      (a) Sec also Ordinance of 1803, Sec. 6 and 6, City Ordinances, p. 287; also Odrinance of 1825, Sec. 2, City Ordinances, pp. 228-4.
    
   The opinion of the Court was delivered by

Wardlaw, A. J.

The Act of 1788, (5 Stat. 50, §§ 10, 17, 12,) contemplates the annual collection of taxes, requires warrants for collection to be directed to constables, and by its twelfth section gives to taxes a preference over all “ securities and incumbrances whatsoever.” The case of Harth vs. Gibbs, (3 Rich. 316,) decided that no specific lien upon property, only a general indebtedness of the person liable to pay the tax, had been created; and by the Act of 1843, (11 Stat. 248, § 15,) taxes were made to constitute specific liens upon the property taxed “for one year from the time when the liability for the said taxes attached upon the owner,” under which each parcel of such property may be levied within the period aforesaid and sold for satisfaction of the taxes thereon, notwithstanding any alienation of the same by the owner after the liability for the said taxes attached, the proceeds of sale being applicable to such taxes on the property sold “ prior to and in preference of all judgments, mortgages, pledges, debts, or other liens on the same; but nothing herein contained shall be construed to affect or impair the oi’dinary general lien of executions for taxes duly lodged in the office of any sheriff.” This provision, whatever may be its further effect, certainly serves to guard the rights of the State against transfers made between the first day of October, [first day of January after the tax act, by Act of 1866,] (13 Stat. 395,) and the lodgment of execution. No Act of the Legislature has directly given to warrants for collection of taxes the binding efficacy of a fieri facias lodged in the sheriff’s office for enforcement of a judgment, but since 1799 (5 Stat. 373, § 17; 1803, 5 Stat. 455, § 14; See note 14 Rich. 271-6) they have been called “executions” and lodged in the sheriff’s office, and frequently the terms used by the Legislature, as in the Acts of 1799, 1803, and 1843, show an understanding that such binding efficacy existed. Indeed, in the confused condition of the law about taxes, it has more than once happened that a mistaken opinion, proceeding perhaps from some public officer, has grown up and prevailed, until it was corrected by appeal to the Courts, as for instance in respect to a lien upon property in the hands of a purchaser, corrected in the case of Harth vs. Gibbs.

Reference has thus been made to the laws concerning taxes imposed by the Legislature, because in Charleston the city taxes so often equal or exceed those of the State, and by the city ordinances the regulations concerning the collection of city taxes have been in general so assimulated to those which relate to the State taxes, that it has been supposed that the State legislation on the subject, without special reference to the city, applied to the city taxes and supplied the deficiencies in the city ordinances. But the Act of 1783, (5 Stat. 98, § 4,) which is called the charter of the city of Charleston, and which alone defines the power of the city council with regard to taxes, authorizes necessary assessments and leaves all details, as to collection and the like, to be regulated by rules and ordinances and by laws, not even, as in the case of Moultriville, referring to the laws “for the collection and payment of the general State tax.” Accordingly, the city council has by ordinances provided a tax system for itself, which in 1844, (City Ordinances, 276,) seems to have been amended and modified. In this there is no general preference given to city taxes, as by the twelfth section of the Act of 1788 was given to State taxes, nor any express provision that an execution for taxes shall have any lien, although by the tenth section, which is copied from the fifteenth section of the Act of 1848, above cited, the mere imposition of a tax without any execution creates a specific lien upon property for a year; and a general lien of a tax execution duly lodged is implied to exist as of-an ordinary execution. What is this general lien ? Of an ordinary execution it is a lien upon the property of the defendant in execution, beginning when the execution is lodged and subject to all prior liens. The priority which, according to the case of Butler vs. Baily, (2 Bay, 244,) the necessities of government require, the case of Harth vs. Gibbs, the Act of 1843, and the Ordinance of 1844, show must be sustained by legislative enactments, that is in respect to city taxes by an ordinance of council. The Ordinance of 1844, as the Act of 1843, contemplated collection of taxes within the year; but although the executions which authorize levy, sale, and imprisonment, may be executed after the year, the special lien and priority which the tenth section of the ordinance gives, cannot be extended beyond the limit which it prescribes.

In the case before us, under liens which preceded the liability for taxes, sales were made after the expiration of the year from the time when the liability for the last tax attached, and it appears to the Court that the prohibitions were properly ordered.

The motions are dismissed.

DuNKiN, C. J., and Glovjse, A. J., concurred.

Motion dismissed.  