ON PETITION FOR REHEARING IN THt! CASE OF PERRY COUNTY Y. SAVANNAH, M. & M. R. R. CO.
STONE, J.A petition for rehearing has been filed in this cause, on two grounds : First, it is contended that taxes can not be collected after the expiration of the tax year in which they are assessed, because, as it is alleged, the law has made no provision for such collection. In Hibbard v. Clark, 56 N. H. 155, a majority of the court held, that taxes levied and assessed are not a debt due from the tax-payer, which can be made a set-off under their statute. Cushing, O. J., dissented. In Finnegan v. City of Fernandina, 15 Florida, 379, — a proceeding in equity — it was decided', “A court of equity will not devise a method to recover a debt, because of failure to recover it through the ordinary legal remedies.” This had reference to unpaid taxes, resting on peculiar grounds, and materially influenced by the limited powers of the chancery court. It sheds no light whatever on the question we are discussing. The ease of Cobb v. Corporation of Elizabeth City, 75 N. C. 1, was also a question of set-off, sought to be enforced in equity. The court said: “ Debts owing by the town corporation, in whatever form they may be evidenced, can not be set-off against a demand for town taxes, unless there be a special contract to that effect.” In Cooley on Taxation, 300, it is said, “ that taxes are not debts in the ordinary acceptation of that term, and that the statutory measures are to be resorted to for their collection. Generally, no others are admissible. But the remedy by suit may be given by statute either directly or by implication. *564If no specific remedy is expressly given, or only an imperfect or inadequate one, a presumption that a remedy by suit was intended is but reasonable.” In the excellent work of Burroughs on Taxation, we find the following language i “No other objection has been urged to the recovery of taxes by action. A remedy is provided by statute for the enforcement of the tax by distress, and sale of goods of the taxpayer, and the rule of the common law is, that when a statute creates a right and provides a particular remedy, it is exclusive of all common law remedies. But this doctrine only applies to those to whom the statute is a rule of action. The king is not bound by a statute unless expressly named, and it is well settled that so much of the prerogatives of the king as constitute him parens patrien, or universal trustee, vest, under our system of government, in the State, or body politic. The reason of this rule ceasing, in the case of the State or United States, the rule itself ceases, and either debt or assumpsit may be sustained for taxes. . . it would seem to be clear upon principle that an action may be maintained for taxes. . . Taxes are a political necessity. If the law raises a promise to pay, that one of its citizens may not obtain the services or goods of another without compensation, surely it will raise it that the State may exist. The tax is a personal charge against the citizen, notwithstanding a lien upon the .property maybe given by statute for its payment.” See pages 253-4; Ib. 4. These principles are well justified by adjudged cases. — See Savings Bank v. U. S. 19 Wall, 227; Meridith v. U. S. 13 Pet. 486; U S. v. Lyman, 1 Mas. Cir. Ct. 482; City of Dubuque v. Ill. Gen. R. R. Co. 39 Iowa, 56. In the case last cited, the doctrine was carried to a length not necessary to be followed in this case.
We think it may be affirmed as the result of the foregoing, and a large preponderance of authorities, that taxes levied and assessed become a legal liability on the tax-payer, that may be enforced by an action at common law, unless the statute gives a remedy that is, in its nature, exclusive. But it is probably «enough in this case to maintain the proposition, that levy and assessment of taxes create a legal liability on the tax-payer to pay.
We have received another argument on the subject of collecting taxes that have been assessed,.and not collected during the year of their assessment; and we confess, ourselves much embarrassed by the present condition of our statutes. We think we may safely affirm that it has been the custom of tax collectors to collect taxes for previous years, which, for any reason, have escaped collection. We shall hereafter show there is warrant for this in the statutes. We think the *565confusion and difficulty in wbieb the subject we are discussing is involved, have grown out of amendments and alterations of the revenue law, which have been made from time to time, without observing and preserving the harmony of the system, by other amendments, rendered necessary by those made. This is not to be wondered at, considering our comprehensive and complex revenue system. In tracing the history of our revenue legislation, as affecting this question, we need not go behind the revenue law approved December 31, 1868, Pamph. Acts, 297. Sections 47-8-9 of that statute direct when and how the tax collector shall meet the -taxpayers for the purpose of receiving their taxes, and what opportunities he shall afford them to meet him and make voluntary payment. Section 53 provides that the tax collector, upon the mere assessment lists, and without other process, may “ levy upon any personal property of delinquent tax-pavers,” and sell the same for the purpose of collecting the taxes. A further clause of the same section provides and directs that “ it shall also be the duty of each tax collector to ascertain, in his respective county, who are the insolvent or defaulting tax-payers;” and it is then made the duty of the tax collector, “ to ascertain who, if any person or persons, are indebted to, or has in his or their possession, or under their control, any money or effects, the property of the said defaulting tax-payer, or insolvent tax-payer; and this section, 53, then makes provision for garnishment in such cases. What is the meaning of the clause, shall “ascertain, in his county, who are the insolvent or defaulting taxpayers ?” Is it that he shall ascertain the defaulters of the current year, or does it reach to and embrace defaults in former years ? If the former, the employment of the word ascertain is strangely inapt. He has in his custody and keeping all the tax-lists of that year. He knows whose taxes have been paid, for they have been paid to him. Knowing those who have paid, he knows, equally as well, who are the defaulters. Ascertain, as here employed, means to find out. He has nothing to find out as to delinquents of the current year; for he knows all. And, in the very next clause of the same sentence, it is made his duty to ascertain who, if any person or persons, are'indebted, &c. Ascertain, in this branch of the section, certainly means to find out. There can be no dispute of this. As a rule, a word twice employed in the same sentence, or statute, is to be interpreted in the same sense, unless the context shows it was intended to express a different meaning. There is nothing in the context to show that, in this sentence, the word ascertain was employed with variant meaning. — See Lehman, Durr & Co. v. Patrick Robin*566son, present term. No officer is ever charged with the duty of ascertaining that which he already knows.
But sections 62 and 63 of the revenue law of 1868, demonstrate that the tax collector is charged with the duty of collecting delinquent taxes of preceding years. After advertisement, it is made his duty “ to offer at public sale . . all lands, town lots, or other real property, on which taxes of any description for the preceding year or years shall have been delinquent, and remain due and unpaid.” And these provisions have been preserved in every revenue law since that time.— See revenue law approved March 19,1875, sections 48, 57, 58, Pamph. Acts, 3 ; revenue law approved March 6,1876, ch. 6, § 9, and ch. 8, §§ 1, 2, Pamph. Acts, 42; Code of 1876, §§ 416, 438, 439. These provisions show what is meant by the word ascertain, and that the power of the collector is not limited to the year in which. the assessment is made. Yet, there are no words in the statutes which direct in what manner the tax collector is to be informed of delinquencies in precedent years, unless it be found in the word ascertain, in section 416 of the Code of 1876. But it may be objected that section 438 of the Code of 1876, speaks of and relates to taxes for preceding years assessed on lands only. This is true, and, we must admit, presents a difficulty in the construction we are about to give. But there is a difficulty in any conceivable construction. We have seen above that the tax collector may, and must collect, even by sale if necessary, taxes for previous years assessed on lands. Hence, we can not hold that his power to collect is limited to assessments made for the tax year in which he is collecting. Can there be a reason for giving him power to collect past due taxes on lands, which does not apply with equal force to previous assessments of other subjects of taxation? We think not. The whole theory of our tax laws forbids the idea that delinquent tax-payers, by eluding the tax collector for a season, thereby exonerate themselves or their property from the payment of such taxes. It is the duty of the tax collector to ascertain who are the insolvent or defaulting tax-payers. No discrimination between defaults in paying taxes on lands, and on personalty. He must ascertain the insolvents and defaulters. Eor what purpose ? That he may compel cob lection by garnishment. — Section 416. Then, that he may sell for taxes due for past years. — Section 438. We think the word ascertain, is without import, unless we construe it as enlarging inquiry beyond the tabulated books of assessment in the collector’s hands. It is eminently proper and serviceable, if extended to defaults of previous years. Tnus construed, this duty of the collector harmonizes completely *567witb that other duty cast on him, of assessing the taxes of those who have escaped the tax assessor. The policy of the law is, that every one liable to assessment, shall contribute his proportion to the support of the government which protects him. The following sections of the Code of 1876 confirm, very materially, the views expressed above: sections 448, 466, 471. And, to show that these provisions have a general operation, with limited, specified exceptions, see section 478.
But let us inquire what absurd results would ensue from the opposite construction. A tax-payer, who has failed or neglected to have his taxes assessed, is liable to have them both assessed and collected, as escaped taxes, for any number of years afterwards. — Code of 1876, §§ 392, 413. While, on the other hand, the argument is, that if the tax-payer’s property has been assessed, and his only default consists in not paying the assessment during the tax-year for which it was made, he is, by his own default or dereliction, entirely absolved from all payment. We do not think our statutes admit of such construction as this.
An argument has been made before us, based on section 421 of the Code of 1876, which is in the following language : “ The tax collector; must report to the Court of County Commissioners at the April term in each year, on oath, a list of persons from whom he shall be unable to make the taxes, which shall be termed ‘list of insolvents,’ and also a list of such persons as have been overcharged by the assessor, which shall be termed ‘list of errors in assessment,’ and such court, after a rigid and searching examination of such lists and a proper correction of the same, shall credit the collector with the taxes due to the county thereon, and the probate judge shall certify such lists to the auditor, who shall allow the collector credit therefor, on his final settlement for the State taxes due thereon, and after such lists shall have been passed upon, and the credits given as herein required, the tax collector shall be, and is hereby prohibited thereafter from collecting any tax due upon any such insolvent lists.” The section then provides that the judge of probate shall distribute such insolvent claims among the notaries or justices of the several beats for collection. The argument is, that after this return by the tax collector has been acted on by the Court of County Commissioners, the tax collector is prohibited from making collection of taxes previously assessed. The extract above is part of section 1 of the act “to amend section 15, chapter 6, of an act ‘to establish a revenue code for the State of Alabama,’ approved March 6,1876.” — Pamph. Acts, 16. This branch of our revenue system had its origin *568in the revenue law approved March 19, 1875. — Pamph. Acts, 3. Section 50 of that act, directed that after the insolvent list was passed on by the Court of County Commissioners, the tax lists, so allowed as insolvent, should be, after certain notice posted up, sold in the several beats to which the said insolvent tax-payers belonged. Combination and fraud in its execution, caused a speedy change of this provision. Section 15, chapter 6, of the revenue law approved March 6, 1876, only differs from section 1 of the act approved February 9,1877, in fixing a different and later time when notaries and justices of the peace in the several beats shall make settlement of insolvent tax lists turned over to them. The extract given above is common to, and identical in each of the statutes of 1876 and 1877. It will be observed that this only relates to the insolvent lists, reported by the tax collector, and passed on and allowed by the Court of County Commissioners. It is ■ only this class, turned over to the notaries and justices of the peace, that the tax collector is prohibited from collecting thereafter. Any taxes of that or preceding years, not reported and allowed as insolvents, he is not prohibited from collecting, by this section.
We said above that our revenue system is involved in some confusion. The following sections of the Code of 1876, show to what we refer. Taxes become delinquent January 1st, next after assessment, if not sooner paid.- — Section 361. After the 1st day of January, in each year, the tax collector must proceed, without delay, to levy upon any personal property of delinquent tax-payers. — Section 415. After the tax-collector has ascertained who are the insolvent and delinquent tax-payers — (this can not be of the current year taxes, until after January 1st, for it is only then they become delinquents), if he ascertains — finds out — that any person is indebted to or has effects belonging to the delinquent tax-payer, he must serve notice of garnishment on such person. — Section 416. On the first Monday of March, and on any day thereafter in each year, the tax collector may offer at public sale . . all lands, town lots, or other real property, on which taxes of any description for the preceding year or years shall remain due and unpaid. — Section 438. Garnishments are suits; and if the sum of delinquent taxes be over one hundred dollars, the process must be returnable to the Circuit or City Court. It is known that such suits may be pending for months before they are brought to a final trial. Yet all these varied proceedings must be crowded into a fraction over three months; for, under section 421, “the tax collector must report to the Court of County Commissioners at the April term in each year, on oath, a list of persons from whom he *569shall be unable to make the taxes, which shall be termed ‘list of insolvents.’ ” Failing to report to the April term, the law makes no provision for another or later report; and hence, all tax lists not reported insolvent to the April term, he remains charged with, and must account for as taxes collected. It would seem to be very improbable that a tax collector, no matter how vigilant, could make the process of garnishment available within that short time. And if he act on the prudent side, and report such claim insolvent, he thereby forfeits the right to collect such tax, under section 421; and the State and county lose the right to prosecute garnishment under section 416; for the statute makes no provision for any person, other than the tax collector, to issue or prosecute that suit.
In conclusion of this subject, which we have probably dwelt on at too great length, we hold that it is the duty of the tax collector to ascertain and collect taxes assessed for precedent years, which have become delinquent; and that this duty and right are limited by the acts of 1876 and 1877' — now section 421 of the Code — only to the extent that he reports tax dues as insolvent, and they are so allowed by the Court of County Commissioners. These, as we have shown, he is prohibited from collecting.
The second ground urged for a rehearing in this cause is, that so far as the petition seeks to collect taxes for 1869, it is barred by the statute of limitations. It is a sufficient answer to this argument, in the present case, that the statute is neither pleaded, nor specified as a ground of demurrer.— 1 Brick. Dig. 699, § 859. But, inasmuch as this question may be raised when the case returns to the Chancery Court, it is probably better to consider and decide it now.
We concede that a county, suing or being sued, is not exempt from the operation of statutes of limitation, which cover the action sought to be enforced. They are not privileged from suit, under the principle, that ‘time does not run against the sovereignty.’ They are not the State. — See Miller v. The State use, 38 Ala. 600; Kennehunkport v. Smith, 9 Shep. (22 Me.) 445; Armstrong v. Dalton, 4 De. 568; Lessees &c. v. First Pres. Ch. 8 Ohio, 229. But we have no statute of limitations which covers this case. — See Art. 1, Ch. 20, Tit. 1, Part 3, Code of 1876, §§ 3223 to 3231. And section 392 of the Code goes very far to show that there was intended to be no bar against the liability to pay taxes, short of the twenty years presumption of payment.
It is also contended that the (3ourt of County Commissioners of Perry, by settling with its tax collector, must be regarded as having remitted the taxes of 1869. It might be *570sufficient answer to this objection to say, that tbe record no where shows that such settlement was made. We suppose the facts are, that the court, acquiescing for the time in the act of February 9, 1870, referred to above, and, in the construction given to it, did not require their tax collector to collect or account for the railroad tax due the county for 1869. We do not regard this as a surrender of the claim, or as any bar to its present operation.
On the single question of the tax levied for 1869, the decree of the Chancery Court is reversed, and the cause remanded for further proceedings in accordance with this opinion.