IN BANK.

Dec. Term, 1846.

Lessee of Hannel v. Smith.

The number of tracts of land and town lots offered for sale, was upwards of twelve hundred.

Exhibit D, is as follows: "Smith, Thos. heirs, 30 feet, b. Ches. and Eliz.; value $210, taxes $19.90- sold for $10, 'to Jacob Hannel. Sold on the 21st day of December, 1843."

Exhibit E, is also a certificate of the Auditor of Hamilton county, showing that the property in controversy was entered for taxation on the duplicate, for the year 1841, as follows:"Thos. Smith's heirs, 30 ft., b. Chesnut & Eliz'th sts.; value $210; tax for 1841, $5.25." That the taxes not being paid, it was returned delinquent, and was again, in the year 1842, placed on the duplicate, substantially in the same form, charged with the tax, interest and penalty of 1841, and the tax of 1842; that it was offered for sale on the last Monday of December, 1842, for the tax, interest and penalties, and, not being sold, was forfeited to the State; that, after orders received from the Auditor of State, it was offered for sale, as forfeited land, in December, 1843, the sale commencing on the 11th day of the month, and continuing from day to day until the 21st, when this land was sold.

The following errors are assigned:

First: The Court erred in deciding that the Auditor of Hamilton county was not duly authorized by the Auditor of State to sell the lot.

Second: The Court erred in deciding that the description of the lot was insufficient.

Third: The Court erred in deciding that the sale was void, because made on the 21st day, and not on the second Monday of December.

Fourth: The Court erred in giving judgment for the defendant, when judgment should have been given for the plaintiff.

D. Raymond, for Plaintiff.

The only evidence on the part of the plaintiff, was a regular deed from the Auditor of Hamilton county, on a sale for taxes.

Lessee of Hannel v. Smith.

1846.

On behalf of the defendant, the record book of sales for taxes, IN BANK. Dec. Term, in December, 1843, was produced, from which it appeared, that the authority to sell was not signed by the Auditor of State, but by his chief Clerk, and the State Auditor's seal was not affixed thereto.

It also appeared, by the same record, that the description of the lot in the advertisement was as follows:

Thomas Smith's heirs, 30 feet, between Chesnut and Elizabeth streets-value $200; and that the sale was on the 21st of December, and not on the second Monday of December.

The plaintiff's counsel will contend for the following propositions:

First: The State of Ohio has a perpetual lien on each lot or tract of land in Ohio, for the taxes assessed upon it. This lien can only be discharged by paying the taxes in full. Swan's Stat. 913, sec 25.

Second: The tax laws of Ohio are not penal laws, but they are just and equitable laws, and must therefore be construed by equity, and not by the letter. They are to be construed according to their spirit and meaning, so as to carry into effect the intention of the Legislature, and not literally, so as to defeat the object of the Legislature. Special powers are to be strictly pursued; but tax laws are not special powers. Cowp. 26.

"It is for the interest of all concerned," says Judge Hitchcock, in 5 Ohio Rep. 230, "that tax sales should be sustained whenever they can be." In McMillan's Lessee v. Robbins, 5 Ohio Rep. 13, Judge Hitchcock also says, that "Courts have 'been astute to find defects in tax sales- so much so, that in this State, at least, it has become the general, if not universal opinion, that a title derived under such a sale cannot be sup'ported. Whether Courts have done wrong in this, it is not for us to say. The consequences however, as members of the 'community, we cannot but regret." The consequences are, that, at tax sales, land will not sell for enough to pay the taxes, and the State is defrauded of its revenue.

IN BANK.

Lessee of Hannel v. Smith

Penal laws are criminal laws, and are to be construed strictly; Dec. Term, but tax laws are not criminal laws. And the charge of 25 per

1846.

cent. upon the delinquent taxpayer, is for the purpose of paying the extra expense the State is put to on account of the delinquency, and is no more a penalty, in the true sense of the word, than the costs of suit are a penalty; nor is there any forfeiture, in the true sense of the word. The delinquent tract or lot is put up at auction; and, if nobody will bid the amount of the taxes for it, the State becomes the purchaser, for the amount of the taxes, and then gives the owner two years to redeem it, on paying the taxes and costs. This, instead of being a harsh and penal law, is a very lenient and equitable law, and should therefore be construed by equity. If the owner does not redeem in two years, then the State makes an absolute sale.

Third: The tax laws of Ohio, as well as the tax laws of all other States, make it the duty of the owner of both real and personal property, to list it for taxation, and, in listing it, he must describe it; and, if he fails to do this, he is in default, and can never after take advantage of his own wrong. If the owner fails to list and describe, the assessor is required to do it for him; and this act of the assessor is deemed to be his act, and he may be made responsible for it, to threefold the amount of his taxes on the property. Swan's Stat. 910-11, secs. 16,

17, 20; Ibid. 922, sec. 60.

It would be a gross absurdity to allow an owner of property to exempt himself from the liability to pay taxes on it, by neglecting to list it, or by giving an imperfect or erroneous description of it; yet such would be the effect of allowing the owner to come in and avoid a sale on account of an imperfect description made by himself.

The statute requires a "pertinent description of the property, so as to identify the same;" Swan's Stat. 109, sec. 19; Ibid. 910, sec. 10. What, then, is a pertinent description of a piece of property, so as to designate and identify the same? Such a description as will enable the surveyor to find the lot or tract of land, and survey it-id certum est quod reddi certum potest.

Lessee of Hannel v. Smith.

Dec. Term,

Unless the surveyor can find the lot, and survey it, the auditor IN BANK. can make no deed, and the sale is void, and the purchase money must be refunded. Swan's Stat. 928, sec. 85.

The surveyor usually takes the auditor's certificate, and goes to the recorder's office, and there he finds a full description of the lot, from which he makes his survey; and this, I take it, is sufficient to justify, or rather require, the auditor to make a deed; Swan's Stat. 928, sec. 85. This was done in the present case, and is all sufficient. It is not pretended that we have not got the identical lot that was delinquent, and was forfeited and sold by the State to the plaintiff. What more can be required to identify the lot I am at a loss to conceive.

Fourth: The official acts of all public officers, are done under the responsibilities of their official oaths; and, as they are competent witnesses to prove their own official acts, whatever they say respecting those acts, must be received as true till the contrary is made to appear. The return of a public officer is prima facie evidence of its truth, at common law. The survey of the surveyor is prima facie evidence of its truth. The auditor's deed is prima facie evidence of its truth; and the statute, which declares that the auditor's deed shall be prima facie evidence of title, is merely in affirmance of the common law.Swan's Stat. 928, sec. 6; 9 Ohio Rep. 175.

Fifth: If a public officer has an official public seal, his official acts, authenticated by that seal, are conclusive evidence at common law, and cannot be rebutted. If, then, the Auditor of Hamilton county has a public seal, the effect of the statute is to reduce the auditor's deed from conclusive to prima facie evidence. 4 Cranch, 421; contra, 412.

But, it is contended by defendant that the sale was void, because the Auditor of Hamilton county was not duly authorized by the Auditor of State to sell the lot-1st, Because the authority is not under the official seal of the Auditor of State; 2d, Because it is signed by the chief clerk, and not by the auditor himself.

1846.

IN BANK.

Dec. Term,

1816.

Lessee of Hannel v. Smith.

1. The sale was made under the act of 15th February, 1842, which does not require either the hand or seal of the auditor. The language of the statute is "it shall be the duty of the Auditor of State to transmit to the auditors of the respective 'counties, lists of all lands, town lots," &c., without designating the mode of transmitting. Even the act of 1831 does not require the authority to be under hand and seal, except for the year 1831. The 5th section of that act requires the Auditor of State to forward to the county auditors lists of the forfeited lands, &c., but does not require it to be under hand and seal. The 3d section provides for the forfeited list of 1831, and requires the auditor to affix thereto the seal of his office. 2. The Auditor of State is expressly authorized, by the act of 31st of January, 1831, to appoint a chief clerk, who is authorized to do and perform the several duties required of the auditor.Swan's Stat. 122, secs. 21, 23.

The defendant also contends that the sale is void, because the sale was not made on the second Monday of December, 1843.

The statute does not require the lands and lots to be sold on the second Monday of December, but that they shall be exposed to sale at the Court House on that day. Exposing to sale and selling are two distinct acts. A piece of property may be exposed to sale for a week or a month, without being sold. The lots were all exposed to sale on the second Monday of December, although many of them were not sold for several days afterwards. There were upwards of twelve hundred lots advertised for sale, and they could not all be sold in one day. The auditor is required to "offer each lot separately, beginning with the first lot in the list, and so continuing on through the list, till they are all sold." This was done; and notice was given, in the advertisement, that the sale would be continued from day to day until they were all sold. The statute has, therefore, been strictly complied with in every particular.