
    Robt. Chadwell, et als., in Error, v. The State.
    1. Tax Collector. Credit for land reported for sale.
    
    A tax collector, to entitle himself to credit for lands reported for taxes, was required to make his report to the proper term of the court. Delay without statutory excuse was a forfeiture of the credit.
    2. Same. Same. Excuse for delay.
    
    If the tax books did not come to the hands of the collector in proper time, the court would allow a reasonable time to make the report.
    3. Same. Same. Same.
    
    Where the law required the book to be furnished to the collector on
    the First Monday of April, 1871, and the report was to be made to the first term in the year 1872, the book not being furnished until the 27th of October, 1871, it was held, that a report on the 7th of March, 1873, did not entitle the collector to the credit.
    Code cited: Sec. 612.
    4. Same. Same. Same.
    
    The difficulty of performing the duties of the office of collecting taxes within the time prescribed by law, forms no excuse for the non-performance. That is matter for legislative, not judicial correction'.
    5. Same. Same. Collections subsequent.
    
    When the credit is allowed on reporting the lands for sale, the collector is subject to be recharged with all lands sold to private parties.
    
    Case cited: Dawson v. Qrifjin, 4 Sneed, 381.
    6. Question Deserved.
    Will the failure of a collector to continue a sale from day to day, and a postponement from week to week, on account of prevalence of cholera, avoid sales made after the first day?
    FROM DAVIDSON.
    Appeal from tbe judgment of tbe Circuit Court, September Term, 1873. J. W. McHenry, Sp. J.
    
      E. H. East, Neill S. Brown, Sr., and A. L. Demoss for plaintiffs in error.
    Att. Gen. Heiskell for the State.
    Mr. Demoss for the plaintiffs in error said:
    This was a proceeding commenced in the Circuit Court of Davidson county, by the State against Robt. Chadwell, revenue collector, and the sureties on his bond by motion, for an alleged failure to collect, make return, and pay over money due the State as taxes, in the time and manner prescribed by law. A judgment was rendered against Chadwell and sureties, and an appeal taken to this court.
    Robert Chadwell was elected revenue collector for the county of Davidson, on the 26th day of March, 1870, for two years, and executed bond as required by law.
    By sec. 589 vf the Code, it is made the duty of "the clerk of the County Court to make out the tax list, and deliver the same to the revenue collector by the first Monday in May. But it appears from the record, that the tax list was not given over to Chad-well until the 27th day of October, 1871. The revenue collector can take no step towards collecting taxes until the tax list is delivered to him by the clerk. By sec. 607 of the Code, it is made the duty of the revenue collector, upon the receipt of the tax list, to give twenty days’ notice, by advertisement in four places in each civil district, of the time and place he will attend to receive taxes. And the revenue collector must be present, at each place, at the time advertised. The record shows the fact that there are twenty-five civil districts in Davidson county; that district No. 1, which comprises Nashville, contains eighteen thousand tax payers, and that outside of the Nashville district, one day for each of the other twenty-four districts is required.
    By sec. 608 of the Code, “If any person within any district fails to attend, or pay his taxes on or before the day appointed, the collector shall levy the same, by distraining and selling the delinquent’s goods and chattels, giving twenty days’ notice of such sale, by. advertisement in four of the most public places in the district.”
    By sec. 612 of the Code, “In case there are no goods and chattels on which the revenue collector can make distress for public taxes, he shall make report thereof to the Circuit Court of the county, at the first term in each year, for the preceding year or years, or at any term,” etc. Now, it is insisted, that Chadwell was bound to make his report at the January Term, 1872, while the fact is, that it was not made until the January Term, 1873. It is insisted that the sale should have been made on the first Monday in July, 1872.
    The tax books were not given to Chadwell until the 27th day of October, 1871; he then had to give twenty days’ notice to each district, and it took one day to each district, so that would . be forty-five days, which, from the 27th of October, 1871, would be the 12th day of December, 1871; if the taxes were not paid, he then had to proceed against the goods and chattels of the delinquents, giving twenty days’ notice of the day of sale. Then, if he. ascertained that there were no goods and chattels, he was required to report the land for condemnation, and after the notices the law required, and the time required to make out his report, etc., how could it have been possible for him to have made his report at the January Term, 1872? I insist, that from the late day at which he received his tax list, he did not have time to perform the duties according to law, and get his report in at that term, and as the law required the sale to be made on the first Monday in July, what could have been gained by making his report at the May Term of that year, even had he then been prepared? For, under sec. 615 of the Code, he does not get his order of sale until after the adjournment '.1 the court, and then he must give forty days’ notice of the time and place of sale, and it is clear that from the length of the terms of the court in a populous county, that with the forty days’ notice, the sale could not have been by the first of July, had the report been made to the May Term of that year. But does sec. 612 of the Code require that the report shall be made to the January Term of each year? and it is upon this proposition that the. suit must turn. The section reads: “That in case there are no goods and chattels on which the collector can make distress for public taxes, he shall make report thereof to the Circuit Court of the county, at the first term in each year, for the preceding year or years, or at any term,” etc.
    Now, we insist, that the revenue collector had the right to make his report, under sec. 612 of the Code, . to the January Term, 1873. The words of the statute itself, gives to him this right, and it was so construed in the case 8wan v. The Mayor and Aldermen of Knoxville, 11 Hum., 130.
    If he had the right to report at the January Term, 1873, and sec. 612 of the Code is the only one that fixes the time for the report, he had a right to have a sale on the first Monday of July of that year, and the sale would have been carried on, but for a cause over which the revenue collector had no control. In postponing the sale from week to week, he was acting for the best interest of the State. Under such circumstances as surrounded him, he surely had a right to exercise a sound discretion; his action was based on the advice of lawyers and good judgment, and if prevented from executing the sale strictly according to law, it was by the intervention of the act of God, and no fault of his own.
    Me. East said: This is a motion against IÍ. Chad-well and his sureties, upon his official bond, as revenue collector, for the State, in Davidson county.
    The motion is based upon Sec. 730 of the Code. That section gives the motion against the “officer” as follows: Eor failure, 1. To collect. 2. To make return or settlement. 3. Or to pay over moneys by him received. All these are qualified by the general clause, “at the time and in the manner required by law.”
    It will not be insisted that the defendant is guilty óf the 3d, viz.: “Failure to pay over moneys by him deceived.” This is made a felony by Code, 670.
    
      But it will be said that he has failed: 1. “To oollect the revenue,” and 2. “To make returns or settlement thereof.”
    A failure to collect the revenue, is a very broad expression, and must necessarily be limited in its scope and effect, by judicial determination. If an officer of the revenue uses all the means with which the law has armed him, and then fail to collect, he can not be made responsible. If he issues his distress warrant against a defaulting tax payer, and puts it into the hands of a constable, who returns it nulla bona, and he then reports the realty to court for condemnation, if the tax be upon realty, and the court refuses to condemn it, here he has failed to collect the tax, and under the statute might be held. If the court condemns the land, and the clerk issues the order of sale, and the collector sells the property, and it is bid in by the State for the taxes; here is another failure to collect the taxes — but no one would suppose the collector would be responsible. The statute would be more to the point, and express its meaning better, if it read: The collector shall be responsible, if he fails to use the process and means which the law puts into his Hands, and a loss to the State is attributable to the failure or neglect. Certainly a failure to collect, would not make him responsible.
    Code, 670, gives the motion against the collector and his sureties, for “any neglect or refusal to settle his accounts.” Code, 730, gives the motion against the officer alone, for failing to “make returns or settlement,” “at the time and in the manner required by law.”
    
      The collector’s duties arise after the performance of certain duties of other officers, for whose conduct he could not be held responsible.
    "Whether the collector could settle his accounts with the Comptroller, at the time and in the manner required by law, depends upon other officers than himself.
    Code, 585, requires each assessor to make his assessment, and report by the first Monday of March, each year.
    Code, 588, makes it the duty of the County Court clerk, to make out in alphabetical order, a list of the assessments, by the first Monday in May, each year. If he fails, the collector is excused: 2 Swan, 613.
    Code, 607, requires the collector to receive the list, and immediately make advertisement at four places in each civil district, of the time and place he will attend to receive taxes. This notice is to be for twenty days. Then, at the end of twenty days’ notice, is to be added the twenty-five days, one at each district, making forty-five days, before he can pass around the county.
    Code, 608. Upon failure to pay, it is the duty of the collector to issue his distress warrant, and this must precede the action of the court in condemnation. Time is required to make these out and return them.
    Code, 612. If no goods or chattels, can be found, on which to make distress, he shall make report to the Circuit Court, at the first term in each year, “for the preceding year or years, or at any term of the court.”
    
      Code, 615. After the condemnation is had, the clerk has twenty days after adjournment to issue the order of sale.
    Code, 616. This order of sale is process; is, in fact, a venditioni exponas, and the collector is to execute and return it under the rules, and subject to the penalties prescribed for writs of fieri facias.
    
    Code, 617, requires forty days5 notice of the time and place of sale.
    Code, 620. The sale is to be made at the court house door, “on the first Monday of July, and next ensuing day or days, if necessary, every year.55
    Code, 622, requires the collector to bid, if no one else will,. the land in, for the taxes, costs, etc.
    Code, 634. When the order of sale is returned to court, the clerk shall certify it to the Comptroller.
    Code, 637. The lien of the State is continued upon the lands, where they are reported to court. See also on the subject of the State lien, and its continuance, Code, 554, 555.
    At what time the collector was required to settle with the Comptroller does not appear.
    Code, 648. On settlement with Comptroller, collector is to be credited with:
    1. Compensation, (sub-sec. 1 fixes this.)
    2. For amount of certificates of deposit in bank.
    3. For amount of insolvencies or deficiencies.
    4. For taxes of a preceding year released by County
    Court, because not collected on account of insolvencies, removals of tax payers, or improper taxation.
    
      5. For taxes on all realty reported by Mm for non-payment.
    6. For taxes on all lands which he was prevented from reporting, because of the failure of the Circuit Judge to hold his court.
    7. Taxes on all lands which he did not report, because of his own sickness, or other unavoidable accident.
    Code, 649, declares the evidence, which shall conclude the Comptroller a copy of the order of the County Court making the allowances for “insolvencies or deficiencies, or taxes released, because' not collected on account of insolvencies, removals of tax payers, or the improper taxation of property or polls.”
    The County Court has the power to release for these causes, at any time before the tax is collected. See Code, 4213. The County Court is the sole judge of what is double taxation, or what is error in the tax list. Code, 656, gives the power to the County Court, to release for insolvencies at any time.
    As to the time allowed to the collector to collect taxes, and of course, to settle his account, it is declared in the Code, 661, to be two years from the end of his term. Code, 662, gives him power in that time to sell land, and then passes the power of sale to his successor.
    The collector shall be allowed a credit for taxes due upon the lands he has reported to the court :• (sub-sec. 5, or sec. 18, of the Acts of 1835, expressly so declares,) and the case of Dawson v. Griffin, 4 Sneed, 381, so ¡adjudicates.
    
      The return of the collector and the proof discloses the fact, that the time of the sale as to part of the property was adjourned, but that all was sold before the next term.
    Is this a sufficient response to the process — the prevalence of an epidemic — an act of God? Ordinarily, this excuses common laches, and all character of obligations. The statute provides for the sickness of the Circuit Judge, of the collector, and also for “unavoidable accidents.” To make return or a settlement, requires the appearance of the collector. This he could not do by deputy.
    'When is a collector to make settlement? Formerly, he was required to pay over all moneys to one of the depositories. This was a settlement pro tanto. Now, he is required to pay it otherwise. If he should withhold the money collected, and not pay it over daily, monthly, or weekly, as required by law, this would make him liable. If he should collect all the money on his tax list, and then pay it over, he has settled. If, however, he should collect part in this way, and pay it .over, and then when * he advertises the land, and offers it for sale, the balance should be bid, or part of it, and he pays this over, this is a settlement; or if the land should be bid off for the State, and he make due return to the Circuit Court, which is certified to the Comptroller, this is a settlement. The Comptroller first sees how much he is charged with in the certified list of the clerk, credits him then with actual payments, then with the list bid in by the State, and if the credits equal the debits, this is a settlement. If 'the County Court has ordered any credits to be entered by the Comptroller, it is the duty of the clerk of that court, to forward them to the Comptroller, and there he .is credited with them. There is no such thing as a settlement final, that is, a day or hour when it shall be done.
    Code, .554-6, (Act of 1813,) construed in 11 Hum., 130, decides that the land may be sold under the judgment of the court, for taxes due in any preceding year.
    Code, 661, (Act of 1842, ch. 98,) construed: collector allowed two years to collect arrearages, and may use distress: 7 Hum., 373.
    Until the certified list is furnished to the collector, he cannot be held liable for a failure to collect taxes: 2 Swan, 613. . If he had collected before the list was furnished, he is liable: 6 Hum., 195; 2 Swan, 613.
    The statute extending the time for collection of taxes by the ex-collector, does not interfere with, or alter any of the statutes of limitation, and such taxes must be collected within the time allowed by law, independent of the Act: 7 Hum., 373.
    If the clerk has failed to furnish the collector with a list, judgment shall be suspended:' 3 Hum., 189.
    The collector may show this fact: 5 Hum., 557.
    Neill S. Brown, Sr., for appellants said:
    This is a motion against the defendant, Chadwell, as tax collector of Davidson county, “for failure to collect, make return, settle, and pay over at the time and in the manner prescribed by law, moneys of the State, being taxes due the State for the year 1871,” etc.
    Upon the trial there was a judgment against the defendants, from which they have appealed.
    The motion is rested upon purely technical grounds. It is not pretended the collector failed to account for money in his hands, nor are any moral considerations invoked in support of the motion.. In such case, the court will give the relief asked for, only under the imperative injunctions of the law.
    1. Sec. 670 of the Code, is the authority for this motion, and provides for the motion “ against any neglect or refusal to settle his accounts by a collector.” ■Code, 730, being applicable to all officers concerned in the collection of the revenue, and by its terms applies only to officers, and not to their securities.
    Code, 588 to 596 inclusive, relates to the duties of ■the clerks of -the County Courts after the assessment, the performance of which precede and are indispensable -to the exercise of his duties by the collector.
    They are to deliver the tax list to the collector, by the first Monday in May, each year, under a penalty to be enforced by the Comptroller.
    Until such list is delivered to him, the collector has no power, and would be a trespasser if he attempted to act. See the case of Governor v. Montgomery, 2 Swan, 613.
    This list is. his warrant, and was not delivered to him until the 27th of October, 1871, instead of the first Monday in May.
    Code, 607, provides that the collector, upon receiving the list, shall proceed to. advertise in four places in each district, and give twenty days’ notice of time and place, when and where he will attend to receive taxes, etc.
    Code, 608, provides that upon default of payment by any tax payer, at such rendezvous, the collector shall distrain, upon twenty days’ notice. Code, 612, provides, that in case there are no goods and chattels, out of which to make the taxes, he shall make report thereof, and make report also of the lands subject, to the Circuit Court of the county, at the first term in each year, for the preceding year or years, or at any term of the court, etc.
    Then follow Code, sections 615 to 622, which show the duty of the collector after the order of sale on his report.
    Code, 634, for his return of sale, and the duty of the clerk to report to the Comptroller.
    Code, 637, provides for a lien of two years.
    Code, sections 648 to 656, inclusive, show the credits due the collector in various ways, and the duty of the County Courts.
    Code, sections 661 and 662, provide for two years after the expiration of his term of office, to sell lands, etc. See the cases of Porter v. Brown, 7 Hum., and Swan v. Mayor and Aldermen of Knoxville, 11 Hum.
    2. But the burden of this prosecution is the alledged irregularity in the proceedings^ — in not reporting to the first term of the court. This is answered by the fact, that the list did not come to his hands until the 27th of October, when it can be judicially known that the court was then in session, and had been since the second Monday in September, and may, perhaps, have adjourned, and it was not possible for him to advertise twenty days in every district, and be present in each one, and then on default of payment, distrain and advertise again twenty days for sale, and then make his report to the January Term.
    But, I insist, that under Code, 612, a report to any term of the court would be valid, for such is its language: “ and for the preceding year or years.”
    3. It is objected also, that the sale was invalid, because it did not occur on the first Monday in July, or the 7th day of that month, and next ensuing day or days, if necessary, under Code, 620. To this I answer, that the sale was opened on that day, and there were no bidders, and for that reason, ■ and on account of the presence of the cholera, the sale was postponed to the following Monday, and then, for the same reason, to the next, and then completed. The collector was advised to this course, from the necessity of the case. See the testimony.
    The simple question is, will an overwhelming act of God, excuse a collector from carrying out a sale at a specified time?
    Suppose there had been an earthquake, that shook the city to its foundations; or a tornado that leveled the buildings to the ground; or a devastating flood, that rendered the country impassable; or a fire, as at Chicago; or any one of the thousand calamities in which nature asserts' her iron supremacy ?
    But this was even more terrible than any of these. They were tangible and might have been escaped from, and gave some notice of their approach. This was invisible, stealthy and malarious. It lived in the atmosphere and was everywhere, and under such circumstances I pronounce an attempt at a sale an act of folly as well- as injustice. And why should not a collector stand at least on as high ground as a sheriff? The order of court is his execution. The State is plaintiff like any other, and not a hard mistress or step-mother; nor was Chadwell a mere automaton, or piece of machinery, with no discretion but to move like another piston-rod. All lawyers know that a sheriff may protect himself from proceedings by motion, for an insufficient return, or for- failing to make money, by. showing the presence of some great calamity, which kept away bidders, or prevented a sale.
    Let them show, if they can, any. substantial difference between this case and that.
    4. I insist, that the sale was valid, and that the State is the ostensible owner of these lands, and that defendant is entitled to that credit, as also his commissions, the declared insolvencies and the errors in assessments, all of which, with his payments, would square his account.
    But suppose the sale was void, what then? The lands can be sold again upon a new advertisement; for the collector has two years in which to wind up. Suppose he had died on the morning of the 7th of July — no sale could have been made, and some time must have elapsed, before his successor could have been elected and installed.
    
      Here is no bad faith; no neglect; no purpose to evade duty; no refusal to pay over money, or to settle bis accounts. The State has really lost nothing; but has her lien under the statute which can not be displaced.
    To make the defendant and sureties liable upon mere technical grounds assumed, would, in my opinion, be oppressive, even barbarous, to say nothing of its extreme inj ustice.
    5. The bill of exceptions, shows that there are twenty-five districts in the county of Davidson, and that one of them, which includes Nashville, contains eighteen thousand tax payers. It is in proof also, that three separate receipts had to be taken from each tax payer — for State and county, for railroad and schools, and but one man could use the book at a time.
    This bare statement may be left to make its own argument.
    The Legislature must have been aware of -the peculiar condition of this and a few other counties, and in the impossibility of carrying out the programme of collection in the time indicated, and therefore, incorporated the provision found in Code, 612, before cited. In the smaller counties, and in fact, in nine-tenths of them, no such extension was necessary.
    Otherwise, what does Code, 612 mean, by allowing report to be made to any term of the court, and for the preceding year or years?
    I know the collector has power to employ agents. But to do so in such a county as this, and complete the work with the race horse speed, enacted by the other side, would require such an army of them as to' absorb all the profits.
    I stand, therefore, with confidence on the Code, 612, and the evidence applicable to it.
    6. I maintain, that if there has been any delinquency, it is not such as will justify a- remedy by motion. There has been no failure or refusal to pay or settle. In the face of such a fierce remedy as this, we invoke the letter of the law.
    7. As to the Act of 1871, requiring sales to be made in July and January of each year, I reply, that this Act was passed after the undertaking of the defendant, and therefore not applicable to his case. He had a right to all the privileges of the laws in force at the time of his appointment.
    Att. Gen. Heiskell for the State,
    filed the brief of Mr. T. M. Steger, as counsel for the State in the court below.
    Defendant, Eobt. Chadwell, was duly elected and qualified revenue collector for Davidson county, for the year 1871, to collect the State and county revenue, and the other defendants are his' bondsmen on his official bond.
    This motion is made under sections 670, 730 and 731 of the Code. The official bond of defendant, Chadwell, with the Comptroller’s statement of the amount due the State, are presented as evidence of the defendant’s indebtedness to the State: Code, 732.
    The collector claims that he is entitled to have credit, on the amount claimed bj the State, by the amount of taxes released by order of the County Court; by commissions due him by the State, and by taxes due on real estate reported by him to the Circuit Court, condemned and sold. See agreed statement of facts.
    In reference to the first points, the facts show that no evidence has been filed with the Comptroller, upon which the credits are claimed. Upon the last point, the facts are that the tax upon real estate reported ■to the court, was for the year 1871. The report to the court for condemnation was made by defendant at the January Term, 1873, (7th day of March, 1873,) the land was condemned by the Circut Court of Davidson county, on the 7th March, 1873, and ordered to be sold “ as the law directs.”
    The defendant advertised in the Union and American newspaper at Nashville, that he would sell, etc., on the “first Monday in July, and each succeeding day or days.”
    In accordance with the order of Court, and the advertisement, defendant appeared on the first Monday in July, and sold through the letter “A,” that is, all the property which the report shows belonged to owners whose names begin with the letter A. Every piece was bid off in the name of the Treasurer, etc., except one. *
    Then, on account of the prevalence of cholera, and absence of all bidders except M. M. Brien, defendant made proclamation that he would adjourn the sale to the “succeeding Monday,” at which time, he proceeded with the sale, and sold through the letter B, that is, the property of owners whose .names commence with the letter B, as shown in the report, all bid off in the name of the Treasurer, etc.
    After another postponement of a week, the balance of the land was sold, and bid off to the Treasurer,, etc., except the pieces specified in the report.
    The credit claimed by the collector for taxes released by the County Court, the Comptroller refuses, because no evidence has been furnished him, as the law requires, upon which such credit could be given. See Code, 649.
    The credit claimed by the collector for his report and sale of land, the Comptroller refuses to give, because it was unlawfully and improperly delayed. Sec. 620 of the Code, requires that the sale of land for taxes “shall be made on the first Monday in July, and next ensuing day or days, if necessary, every year.”
    In order to comply with this requirement of law, he is .bound to report at the January Term every year, or at some other term, which will give him time to advertise forty days before the first Monday in July, “ every year.” This fixes the time with certainty, when the collector must make his return to the court. The only admissible excuse for failing to make report, so as to ’ sell on the first Monday in July, “ every year,” is laid down in Code, 648, ss. 6, 7 and 8.
    The collector, in the case at bar, did not report at the time required by law, and has not offered an excuse for not doing so. The law contemplates that contingencies may occur, which will prevent the report of the collector at the time it is required to be made. Provision is made in such case, so that the settlement of the collector will not be delayed, but he can come forward at once, with the evidence of his excuse, Code, 653, 654, and settle his account and be credited, as though he had reported the land as required of him. The fact that these provisions were made for prompt settlement by, and discharge of, the collector, shows that it was not intended that the collector should, at his discretion, without offering the excuses provided by law, pass a whole year; put off his reports and land sales, and delay his settlement. If such a principle was established in favor of collectors, it would ruin the State finances.
    Sec. 599 of the Code requires the collector to pay over taxes collected, or which ought to have been collected ' by him, against the last day of December. Then immediately follows the January Term of the Circuit Court, at which he should report delinquent lands; and he is then ready to settle with the Comptroller, and is entitled to credit for taxes on the lands so reported by himCode, 648, s. 5; Dawson v. Qriffin, 4 Sneed, 382. “If the taxes should be afterwards collected upon the judgment of condemnation, the collector is to be debited.”
    After the sale, the collector has no further concern in the matter. To redeem the lands, the redemption money must be paid to the Treasurer, or to the clerk of the Circuit Court.
    Mr. Att. Gen. HeiskelPs explanation of sections 661, 662 of the Code, is respectfully submitted to the court, and this in support of his view.
    Before the land in question was reported or condemned, the Act of 14th February, 1873, ch. 6, s. 1, had become law. Chadwell, after this, had no right to take any steps towards reporting or condemning the land, until he had paid the amount due the State, as contemplated in that Act, which was passed specially for the benefit of collectors in his condition: See MeRee v. McLemore’s heirs, Jackson, at last term, post p. 440, as bearing collaterally upon the effect of this Act,
    It is believed that the decision of this point in the case depends alone upon the question as to whether the collector made his report at the time required of him by law. The statutes provide credit for taxes due on lands reported by the collector, but no statute gives credits for sales.
    But if the court should be of opinion that the credit depends upon the sale, then it is believed that the sale is not such as should entitle the collector to credit. The purpose of the law is, that the State shall receive something for taxes; either the money assessed against the property, or the property' which is sold for the tax. • If credit is to be given to the collector on account of his sale, it is upon the idea that he has proceeded regularly, and in accordance with the law, and that the State has thereby acquired a title to the lands, and holds them in lieu of the taxes due on them.
    But if the collector has proceeded so irregularly and illegally as not to convey a title under his sale, then the State gets nothing, and for this, certainly no credit can be claimed or allowed.
    In this case, the sale is void and conveys no title, because:
    1. The report fails to show in whose name the lands were granted, or in whose name entered: Code, 623, 630; Quimby v. IV. A. G. & T. Go., et als., 2 Heis., 604, 605.
    2. The sale was not made in compliance with the order- of the court, which was, that the lands be sold “as the law directs”: see Code, 620. The collector did not sell on the first Monday in July, and each succeeding day or days, but postponed the sale without authority. Sec. 616 of the Code, requires that the order of ' sale be executed under the same rule, etc., as prescribed for sheriffs.
    If any act of God, or public calamity, prevents a sheriff or collector from executing the order of the court, he should return it unexecuted, with a statement of the facts. He has no authority to act outside of the order. Public calamity may excuse an officer from acting at all, but will not justify him executing an order improperly.
    3. The land was not sold in accordance with 'the advertisement. It was not sold on the day it was advertised to be sold, and not advertised at all on the day it was sold.
    The Comptroller claims that the case must be considered just as it stood at the time the notice of motion was served: Young v. Hare, 11 Hum., 303.
    
      At that time, the collector had neglected to settle or file any of the evidences upon which he now cMms credits.
    The Comptroller can not allow any credit except such as are authorized by sec. 648 of the Code, and upon the collector producing the evidences provided in ch. 5, art. 6, of the Code.
    The collector, in this case, has failed to produce any of these evidences as required by law, and the State asks judgment.
    T. M. Steger, in reply to points made by the defense, said: The point assumed by the State in opening the case, and upon which its case is rested, viz.: That the collector must make his report to the January Term of the Circuit Court, “every year,” or to some other, which will give him time to advertise and sell on the first Monday in July, of “every year,” has been met by the defense, by the argument:
    1. That it was impossible.
    2. That the collector was justified by sec. 612 of the Code, in postponing the sale, if he desired to do so.
    3. That the collector did not have to settle with the Comptroller at all. That when he had paid in the taxes collected by him, retaining his commissions, and made his report to the Circuit Court, and got his releases from the County Court, that was all he had to do, and his account was settled.
    To the first point the State answers: That it may be true that the collector got his books in October, that there are twenty-five districts in the county, which it would take as claimed, twenty-five days to visit, and that there are eighteen thousand tax payers in the first district, and it is easy to see that the collector could' not have done the work alone; but the court will see from the large amount of business that the compensation of the office was ample to have justified the employment of a sufficient number of deputies to have finished the work in the time required by law. The Circuit Court of Davidson county meets on the fourth Monday in January, and continues its session until some time in March. (The report in this case was made to the January Term, and on the 7th of March.) At any time during this term, the report could have been made, and the land condemned and sold in July. But if this was not sufficient time, the land could have been reported at any time during the May or the September Term, and sold in January.
    It is insisted that this is a clear case of negligent delay.
    Upon the second point of the defense, that is, that sec. 612 of the Code, justifies the collector in delaying his report, the State insists that the Code must be so construed, if possible, as to make its sections consistent and not contradictory. Code, 620, clearly requires that the collector report “every year,” to the first or some other term of the court, which will give him time to advertise and sell on the first Monday in July. Code, 612, says the collector shall report at the first term, for the preceding year or years, or at any term.
    
      This section agrees with section 620, that the report should be made to the first term for the preceding year, but goes farther, and says that the report may be at any term, and for the preceding years. Now, does this last clause contradict and nullify the effect of the first part of the same section, as well as section 620? Or is this last clause intended to protect the State against the negligence and delay of its officers, and say, in effect, that although you failed to report at the first term, as you ought to have done, still, if the report is made at any term, and for the preceding years, the sale shall be valid. The court will notice that no consequences attach to the failure of the officer to report at the first term, either under sections 620 or 612. Yet, under section 648, consequences do attach to such failure, but not such as conflict with sections 612 or 620, nor affect the title to land, but consequences which are personal to the collector only; and are, that the collector, in his settlement with the Comptroller and County Trustee, shall be allowed no credit for taxes due on lands, unless he was prevented from reporting them to the first term, or some other term, which would give him time to sell on the first Monday in July, “every year,” by reason of the failure of the judge to hold the court, the evidence of which shall be 'the certificate of the presiding judge or clerk, or unless he was prevented from reporting,, because he was himself unable to attend the court by reason of sickness, or other unavoidable accident.
    To the third point of defense, viz.: That the collector is not bound to make a formal settlement, but his duty is done when he has paid oyer the money actually collected, and made his report to the Circuit Court, and gotten his releases from the County Court, that his settlement is made without more.
    The State claims that the tax collector must settle and deliver his vouchers to the Comptroller, and for this purpose, requires the Comptroller to be at Knoxville and Jackson at certain times every year, to settle with the collectors in the eastern and western parts of the State: Code, 207, ss. 22, 27. The Comptroller, in his turn, is bound to make his report to the Legislature, and produce the vouchers which he has received from collectors, and upon which he has allowed credits, and the collector is entitled to no credit until he has produced the vouchers Avhich entitle him to credit: Ch. 5, art. 6 of the Code,
    The Comptroller could not, as assumed in the argument, undertake to examine into the reports of collectors, and what releases each has received. Such a proposition would force upon the Comptroller to follow up every collector into his county, and examine into his case; but the collector must produce the evidence upon which he claims credit, and have it examined by the Comptroller, and see if it is correct and should be allowed, and for neglect or failure so to settle, the collector renders himself liable to motion: Code, 670, 730; Wood v. The State, ante p. —.
    Att. Gen. Heiskell for the State, said:
    This case involves two questions:
    1. Is a tax collector entitled to credits for lands reported twelve months after the time at which, bylaw, they should be reported?
    2. Is he entitled to credits for lands properly reported, which, by his own fault, are not sold so as to convey title — in the present instance, not sold on the day required by law ?
    The first question arises on this state of facts: Chadwell being the tax collector for the year 1871, was bound by law to make his return of lands for taxes, to the first term of the Circuit Court for the year 1872. If he failed in this, he was then required to make the return to the second term; failing in this, then to the third term.
    If he makes the return to the first term, he is' entitled to a credit for the amount of lands reported. But if he fails, the Code admits of but two excuses: 1. That the court was not held: Code, 653. 2. That
    the tax collector was prevented by sickness, or other unavoidable accident: Code, 654.
    The Code also prescribes the mode in which each of these credits shall be proved; the first by the certificate of the presiding judge and clerk, that no court was held: Code, 653. Observe, no parol proof. Nothing but the double certificate.
    The other credit shall be given on the order of the County Court allowing it. But that order is only to be made on evidence of sickness, or other unavoidable accident.
    Now, neither of these reasons, and neither of these proofs, are set up at all in this case. It results, necessarily, that the collector is not entitled to the credits.
    
      An .attempt is made in this case, by the collector, to screen himself, by setting up an excuse which the law does not tolerate or allow, and which common sense contradicts. He says that there are twenty thousand tax payers in the county, and that he could not get ready by the first term. I • have only to say that the law does not make that an excuse. He says he had to make out triple tax receipts. This I deny— there is no proof. If he did, he was. not bound to wait until the tax payer called to make his calculations. He had a large amount of commissions — claiming here $4,400, for commissions on the amount in controversy here, in all, at least $5,000, and he was bound to employ as many clerks, and adopt as many and such devices to save time, as would make his action conform to the law. If, then, the work could not be done by him, or by him and two clerks, or by him and ten clerks, he was bound to employ twenty or forty, if need be, or show some inevitable accident by which clerks and assistants were not to be had.
    Suppose he had died, then his deputies would be bound to act.
    Book could only be used by one at a time. In point of fact, the book could be bound in several parts.
    It is easy to demonstrate that the same rule the Legislature imposed upon the Comptroller, regulates the court in regard to its judgments. It requires the Comptroller to settle and the tax collector to pay over accordingly. If he fails to pay over he is subject to suit, but when he is subjected to suit, is he not also subjected to judgment? Is the Comptroller to settle upon one rule rightfully, and compelled on that rule to order suit, and the court, by the same rule, to give judgment against the State? I do not deny that when the Comptroller refuses credits that the law requires him to allow,- the courts may rectify his errors. "What I deny is, that when the Comptroller does right and settles according to law, the court can make a different settlement also, according to law. The measure of the tax collector’s responsibility, on which he must rightfully settle, is also the measure of his responsibility, on which he must pay, and on which he is liable to judgment. The settlement then made according to law, with all the credits the law allows, is the measure of the judgment. The settlement unjustly or unlawfully made, is not the true measure of the collector’s liability, but is to be corrected to what it should be. Any other rule would put the Legislature in the attitude of requiring the Comptroller, on a rightful settlement, to bring a rightful suit, which rightfully must fail by a rightful judgment.
    As to the fees in this case, the Act of 1871, ch. 136, s. 158, prohibits any fees upon any amount of revenue not actually collected. This, I take it, is an express prohibition upon the payment of any fees to the collector on these taxes which are not collected.
    The Act of Assembly of 1833, ch. 86, C. & N., 621, did not make any provision for any extension of time to report land for taxes. It gave the Treasurer and County Trustee the discretion to suspend taking judgment for a reasonable time. That Act makes no provision for any failure to return in time for condemnation. It gives no aid, therefore, in the direction of this case.
    Judge East very properly takes a distinction between the return being good against the tax payer, and being according to law. It was not intended that the condemnation should be made at a particular term or be void, but simply that the tax collector should make it then or have no credit. It was intended that it should still be valid for his benefit. But it no longer allowed him to buy it in for the ’ State, after it was charged to him. The State cedes all her remedies when she makes him liable.
    The position that a settlement is dispensed with by the Code, or the subsequent legislation is 'untenable. This case shows the necessity of a settlement. Here, the proof shows that no settlement was made, no list of insolvencies allowed returned. This failure to settle necessitates the motion. Yet Judge East says the settlement is wholly unnecessary. If Mr. Chadwell had come up to make settlement, he would have said at once: Here, I am allowed these insolvencies. The Comptroller would look at his statement and say: But the clerk has not sent me the statement required by law, as a check upon you. I must have my regular statement from him. Then, if it corresponds with your claim, I will allow it.
    But you have not allowed me so much for lands returned for taxes. No return from the clerk; when I get that, I will allow it. By means then, of the settlement, which the law requires, and which Judge East dispenses with by implication, we lose the only means of ascertaining the amount due, in case any one of the numerous agencies that the State employs are negligent. By the settlement we bring home knowledge of the failure, and put the chief accountant in a position to repair the evil.
    Judge East, also insists that the law fixes the agencies which are to work out the delivery of the tax list. But suppose they do not perform their functions. Then he ignores the necessity which the law imposes on the collector to urge up the clerk. He insists that he has no right to hurry up his work. The law entitles him to what Judge ' East calls his warrant — i. e. — the tax book at a certain time. If it does not come at the day, whose duty is it to enquire whether it has been sent and miscarried, whether it is ready and forgotten, or whether the delay is known to the clerk, and necessary and unavoidable ? Surely the law does not contemplate that the tax collector fold his hands, and' say: I bide my time. The Attorney General is to move against the clerk for failure, but who is to inform him of the failure, if the collector is to sit still? Surely, with the means to enforce the delivery furnished by the law, it is the duty of the party, who alone, of all the agents of the State, is to be crippled in the performance of his duty, and subject to loss, to use the means in his power to hurry up the work. When he seeks to have the credit, which the law denies him, he does not pretend that it .would be impossible to perform his duty, if he had called on the clerk, when the law required the clerk to deliver the books, and on his failure, had called on the Attorney General to proceed against him. I deny that the failure of the clerk is an excuse; but certainly a failure, which the collector did not use the means provided to prevent, can not be set up by him. There is not a word of proof of diligence in this question, and all diligence must be shown, before an absolute and imperative statute can be made to yield (if it ever can) to necessity. That is no necessity or impossibility, which reasonable effort can avert or perform, and necessity can not be shown to exist, but by showing that effort and its failure.
    It is said, the law has never been complied with in this county. Does not that prove the necessity to begin? If it had been enforced years ago, the State would have been saved thousands and hundreds of thousands, perhaps millions of dollars.
    It does not prove the impossibility of doing the thing, but simply that the effort had not been made. It might be proved in the same way, that the revenue of the State could never be collected in particular counties, from the collectors who had it in hand, because in many cases, it had not been so enforced. It amounts to this, simply, that in Davidson, the law has been so long disobeyed, it is lawful to disobey it.
    The defendant has not only failed here to report, but he has failed to make the sale as required. The record shows a bidder present with twenty thousand dollars to invest in lands, calling on him to sell. If he had sold and got this twenty thousand dollars, it would have settled this whole controversy. But he prefers not to do it. He does not go to his proper adviser, the Comptroller, but he goes about to the lawyers, who are not employed by him, to get street opinions. These street opinions are evidently such as do not make good the sales made under them. If he had employed a lawyer to examine the question for him, he would have found that what Brien told him was law, and that there was no escape but in the indulgence of the Legislature. The collector was here. He does not state at all that he was afraid to attend. Brien was not afraid to attend and bid. He had a certain means of saving a large amount to the State, and this he sacrificed without excuse. .
    If the court is prepared to hold that these opinions are right, and will give the State title to the property on the sales, there might be consistency in holding that the collector did his duty. But the court well knows that no such sale would ever be held good, and that the State will never get a dollar by the sales so made, is certain. The collector can go on and make a new sale under the order, but the State ought not to be onerated with the cost of that. Is the State to pay him $1,600 for this void sale and $1,600 more for another sale, to correct what he has failed to do properly? See Blatter v.- Mayor and Aider-men of Manchester, 2 Heis., 64.
    
      
       Under the act of 1873, the credit is allowed after the sale is made.
    
   McEabland, J.,

delivered the opinion of the court.

This is a motion made by the State to recover of Robt. Chadwell, tax collector for Davidson county, and his sureties on his official bond, $19,364.19, a balance of revenue claimed to be due the State from said collector, for the year 1871. The motion was heard before Hon. Jas. W. McHenry, Special Judge, and judgment rendered in favor of the State, for a balance of $11,995.67, and $1,170 interest, and the defendants have appealed from the judgment. The balance claimed in the Comptroller’s statement of the account, upon which the motion was predicated, was the amount moved for, but on the trial, credits were allowed for errors and insolvencies allowed by the County Court, and commissions on the amount collected and paid over, reducing the balance to the amount of the judgment rendered below. The only question now is, whether the court was correct in refusing to Chadwell credits for two items claimed by him: one an item of $10,808.92j the amount of State tax due on real estate reported by him to the Circuit Court for condemnation; the other, $1,670, fees for making the sales of the lands.

The Code, sec. 648, enacts that “on settlement of his accounts with the Comptroller and County Trustee, the collector shall be allowed a credit,” as therein specified, setting forth seven different credits. The 5th is “for taxes on all lands and town lots reported by him for non-payment of taxes due thereon.”

Other sections give special direction as to the duties of the collector, among which, is the duty to report to the Circuit Court, for condemnation, all lands in cases where there are no goods or chattels to distrain: Code 612. And upon making this report as required by law, the collector is entitled to a credit against the aggregate of taxes charged against him for the whole amount of taxes due on the lands thus reported. This is the credit specified in sub-sec. 648, above refenred to. Code, 652, enacts that the evidence upon which the 5th credit is allowed, shall be a copy of the collector’s report, certified by the clerk, under the seal of the court. When the report is duly made by the collector, he is entitled to the credit at once. After the land is condemned, if it be afterwards sold 'and money received by the collector, he is to be charged with the amount thus received upon the report of the clerk: Dawson v. Griffin, 4 Sneed, 381. Although the provisions of the article of the Code referred to, has more direct reference to the settlement to be made, and accounts to be kept by the Comptroller, yet, we think, they also furnish the ground upon which the collector’s liability is to be determined by the court. It is maintained by the Attorney General, that Chadwell is not entitled to the credit in the present case, because he did not make the report at the time required by law. It appears that he received the tax books from the clerk of the County Court on the 27th of October, 1871. That he made the report in question, on the 7th of March, 1873, during the January Term, 1873, of the Circuit Court of Davidson county.

This raises the question, within what time does the law require the collector to perform his duties, and especially the duty of making the report in question, in order to entitle him to the credit?

The bond of the collector binds him to faithfully collect, and pay over all taxes by him collected, or which ought to be collected, by the last day of December : Code, 599.

It is made the duty of the Comptroller to report delinquent tax collectors, and any officer failing to collect, make return, or settle or pay over moneys of the State by him received, at the time and in the manner required by law, may be proceeded against summarily upon the instruction of the Comptroller, whose statement of the account is prima faoie evidence of the amount due: Code, 730, et seq.

Code, 612, enacts that “in case there are no goods and chattels on which the collector can make distress for public taxes, he shall make report thereof to the Circuit Court of the county, at the first term in each year, for the preceding year or years, or at any term of the courts,” etc. "We think it manifest, that it was not the intention of the Legislature to leave it to the discretion or option of the collector to make this report, at any time after the first of the succeeding year. Such construction would not make it obligatory upon him to comply with this duty by any particular time.

These sections taken together, evidently contemplate that the collector shall complete his duties by the last day of December, and his failure to do so, puts him in default, and renders him liable to motion.

But the law requires the tax books to be made out by the clerks of the County Court, from the original assessment books, and delivered to the collector by the first Monday in May. This duty he is required under severe penalties to perform: Code, 588, 589. By recent Act, this is changed to first Monday in April. The tax books thus made out, is the collector’s authority for collecting the taxes, and without the book he is not bound to proceed. It often happens, as it did in the present case, that for some reason this duty was not performed in the time required. In the present case, the tax book was not received by the collector until the 27th of October, 1871. Was he still bound to collect the taxes and discharge all his duties by the last day of December, only about two months? This would be a very harsh construction, and the result would be that the tax book might be delivered to the collector a few days before the last day of December, leaving him no time to discharge his duties, and still he would be liable to judgment for the whole amount of the taxes, immediately upon the expiration of the time. It is argued that he still might go on afterwards and collect the taxes to reimburse himself and sureties. But we think the more reasonable construction would be, that the liability of the collector to be proceeded against instantly, after the last day of December, must depend upon his being put in a condition to discharge this duty. The corresponding duty of the other officers and agents of the State must also be performed; at least, such as are absolutely essential to enable the collector to perform his. We are not to suppose that the Legislature intends to require absolute impossibilities, and to require an officer to perform a duty within a particular time, even when, by the failure of another officer and agent of. the State to perform his duty, it becomes absolutely impossible for the former to discharge his duties within the time limited.

We think a reasonable and just construction of these Acts is, that when the clerk of the court fails to furnish the collector with the books at the time fixed by law, the collector shall be allowed the same time he would have been allowed, had the book been delivered to him at the proper time — that is, a time corresponding with the time from the first Monday in May or April, as now fixed, until the last day of December; and for reporting lands for unpaid taxes, until the first court of the county, after the expiration of the time, and in this view, probably section 612 provides the report of the lands shall be made at the first court of the succeeding year, or any other term. As to the tax payer, the condemnation would not be invalidated by not being made at the first term, although the collector might be in default for failing to do so.

But in the present case, giving to the collector the full benefit of the time as above indicated, he was still in default. The terms of the court for Davidson county, were the - Mondays of May, January and September. According to the rule we have above given, he was not in default for failing to make his report to the January Term, 1872, but certainly was in default for failing to report to the September Term, 1872, if not to the May Term.

In answer to this, it was attempted to be shown by proof, that it was impossible for the collector to perform the various duties required of him by law, within a shorter period than the duties were performed in the present case, in a county so populous as the county of Davidson, including the city of Nashville. Upon this a pretty strong case is made, but we are of opinion that this is not a question to be determined in this mode. It is not a case of absolute impossibility, in view of the power of the collector to appoint deputies. And while it is manifest that in the county of Davidson the duties are rather greater than in a small county, and the difficulty of performing the duty much greater, still, the law has made no distinction; if a change ought to be made, it is a subject for legislation, but beyond the power of the court. We think the law has fixed a time within which his duty must be performed. It would be a dangerous construction of these laws, to say that this obligation shall be saved, provided the collector shall prove thaí he has used his best efforts, and was not able to complete his duties earlier. This might too often defeat the force of the law altogether. Experience has shown that a rigid enforcement of the law is absolutely essential to protect the State and tax payer from defaulting tax collectors; and we hold that the time within which these duties are to be performed, is a question of law arising upon the statutes, and not a question of fact as to how long it would require to perform the duty. Provisions are made by which the collector shall not suffer, for he may for two years collect the taxes, and thus indemnify himself, even after judgment against him.

In the present case, the collector has been remarkably faithful, having paid every dollar charged to him, except the amount in question due on lands, and as to this, his default was as to the time, and although according to the proof, he made his report as soon as has been the custom, still, according to our construction of the the law, we feel bound to hold that he was in default.

A question has been discussed, which we notice, but do not decide. It appears that after the lands reported were condemned, the collector advertised them for sale on the first Monday in July, as required by law, and on that day was present and began the sale, but owing to the prevalence of cholera in an epidemic form in the city of Nashville, after offering part of the property, he postponed the sale until the next Monday. On the latter day he again offered part of the property, but for the same reasons postponed the sale until the next succeeding Monday, when the sale was begun and completed. The proof shows that this course was adopted in accordance with legal advice, and the facts, so far as they could authorize this action, were well proven, as the cholera prevailed to an alarming extent, suspending business in a great measure. As we hold this collector not entitled to a credit for the amount due on these lands, by reason of his failure to make his report thereof as required by law, we express no opinion as to the legality of his action, or as to the validity of the sales made after the first day. This question does not arise here, but will arise when these sales are brought in- question, between the owners of the land and the purchasers.

We think there is no error in the judgment, and it will be affirmed. 
      
       See post p. 290, Prince v. Britt, et als.
      
     