dissenting:
Dissenting, as I do, from the decision rendered, I deem the case of sufficient public importance to justify the presentation of my views of the law of the whole case.
The bill is brought in the name of the People of the State of Illinois, to enforce the lien given by statute to secure taxes on real estate. The facts necessary to an understanding of the questions of law discussed appear by admission on demurrer, and may be shortly stated:—
Against a piece of land situated in the city of Alton, State,, county, city, township and road taxes were regularly assessed for the years 1871 to 1878, both years inclusive. Hone of the taxes assessed on the property for any year named were ever paid by the owner or any one else, and for the years 1871 to 1877, both years inclusive, the land was forfeited to the State for the non-payment of the taxes so assessed against it. The taxes now due on the land amount to $9000, which it is alleged is equal to one-half its value. Since 1871 the title to the property has passed through several different parties, and is now in Thomas Biggins, who is made a defendant herein. The deeds under which defendant holds the property provide that all taxes and assessments on the land prior to the date of the deeds shall be paid by him, and it is alleged he agreed to pay the same.
Section 253 of the Revenue act provides, “ the taxes assessed upon real property shall be a lien thereon from and including the first day of May in the year in which they are levied, until the same are paid,” and the object of the bill is to enforce the lien thus given, and subject the land itself to the payment of the taxes levied thereon for the years mentioned. There is no suggestion that the taxes levied upon the property are not justly due, but the owner defends solely on the ground a court of chancery has no jurisdiction to decree the relief sought. As the statute gives a lien for taxes levied upon real property, from a day named in' the year in which they are levied, until paid, it would seem a court of chancery is the appropriate and only forum in which that lien can be enforced. How else can it be done under our laws? Counsel have ventured no suggestion as to how the statutory lien for taxes may be enforced, if not in chancery. The enactment means something, and unless the lien created in favor of the State can be enforced, it were better it had been omitted from the law. It is no answer to the proposition that equity may entertain jurisdiction in such cases, to say that the statute has given a remedy for collecting taxes. Such remedy as has been provided is not necessarily exclusive. Statutory remedies may or may not be exclusive of all other modes of enforcing payment of taxes. Undoubtedly the General Assembly has competent authority to enact exclusive remedies in such cases; but before such an intention will be imputed to the General Assembly it must be clearly expressed.
The question raised as to the exclusiveness of statutory reme'dies in 'such cases is not altogether a new one in this court. In Ryan v. Gallatin Co. 14 Ill. 78, it was held the remedy by distress, which is one of the remedies given by statute for the collection of taxes, is not necessarily exclusive, and that when a legal liability exists to pay the taxes an action of debt is an appropriate remedy, where the ordinary mode of proceeding by distress would be inefficient. The case of Dunlap v. Gallatin Co. 15 Ill. 7, declares that, although the collector might have coerced payment of the taxes by the seizure' and sale of personal property of defendant, if any could be found, yet the remedy by distress is not necessarily exclusive.
Another remedy provided by statute is by application to the county court for judgment against the delinquent lands; but on principle it is no more an exclusive remedy than by distress. It may, therefore, be regarded as the settled law of this State, that, notwithstanding the statutory modes of collecting taxes by officers appointed for that purpose, still the liability may be enforced by an action at law. Numerous decisions of other courts are to the same effect, but it will only be necessary to refer to a few of themj as they contain citations of nearly or quite all of the cases illustrative of the question under discussion. Mayor v. Howard, 6 Harris & J. 383; City of Dubuque v. Illinois Central R. R. Co. 39 Iowa, 56; The Dollar Savings Bank v. The United States, 19 Wall. 227.
If an action at law may be maintained in such cases, what reason can there be why the liability may not be enforced in a court of chancery, Avhen that is the more appropriate forum, and when it furnishes the most effective relief? Both causes cited from our reports hold that taxes assessed are a charge upon the property, without reference to the matter of ownership. The property itself may be seized and sold, notwithstanding there may be other liens upon it. The lien given for taxes is paramount and takes precedence of all other incumbrances. The inquiry may be repeated, how can this lien for taxes, Avhich supersedes all others, be foreclosed and the property assessed subjected to the payment, so well as in a court of equity, where such matters are properly coguizable? There can be but one answer, in my judgment, and that is, no other forum can so fully afford the relief so indispensable to subject the property assessed to the burden the State may impose upon it. The víbavs here expressed find support in the decisions of courts of the highest authority in other States in cases analogous in principle, and Avhich are entitled to great consideration.
In Mayor v. Colgate, 2 Kern. 140, Denio, J., after declaring he was not embarrassed by the fact the statute had given a remedy both by distress and sale of the property assessed, added, “but a case might exist Avhere none of these remedies Avould be exactly adapted to the case. Both the owner and the occupant might be without personal property, and purchasers under an ex parte sale are proverbially unsafe. By providing a lien in the nature of a mortgage, the party assessed might be called into court to show, if he could, that the proceedings were irregular, and the purchaser under a bill to foreclose, would have the protection of a judgment of the court affirming the legality of the lien.”
That, is exactly the case under our laws. The General Assembly has provided several modes for the collection of taxes. Among them are, by distraint of personal property, and sale of real property after judgment on application, by the collector; but in addition thereto it has made the taxes a lien upon the real property upon which they are assessed, until paid. It is in the nature of mortgage security, and, as before remarked, is paramount to all other liens. It may be that collectors would be confined to the two specific modes pointed out in the statute, viz: by distress, and sale of real property after judgment in the county court; but there is and can be no reason assigned why the State may not enforce the lien it has declared shall exist, for all taxes levied on real property. The statute is silent as to how that lien may be enforced. Is this law nugatory because no mode is pointed out in the statute by which such lien may be made absolute? It must certainly be understood the legislature intended the lien given should be foreclosed in a court of chancery, which is the only court under our laws competent to administer relief in such cases. Otherwise the legislature must have been guilty of the absurdity of providing a mode of securing taxes imposed upon real property of no practical utility,—an imputation that ought not to be cast upon that branch of the State government.
A case bearing a striking likeness to the one under consideration is McInery v. Reed, 23 Ia. 410, where Dillon, J., in a case involving the power of a municipal corporation to collect an assessment, where no mode was pointed out in the charter, said, “the expenditure is declared to be a lien, and liens may be enforced in equity, and the power ‘ to collect/ given by the charter, may be exercised by commencing an action in court to have the lien enforced.”
The case of United States v. Pacific Railroad Co. 4 Dill. 66, is an authority illustrative of the one in hand. That was a bill in equity by the United States to recover the amount of certain taxes claimed to be due under the Internal Revenue law, from the railroad company, and to enforce the lien of the taxes upon the property of the company, which, since the taxes accrued, had passed into other hands. Mr. Justice Miller, on the circuit, decided that the obligation to pay taxes, whether that obligation should be considered as a debt or not, may be enforced by suit, by an action at law or by a bill in equity, according to the nature of the relief sought.
In Railroad Co. v. Carroll Co. 41 Iowa, 153, all discussion of the question whether a court of equity has power in any case, except when authorized by statute, to enforce the collection of taxes against the property of the tax-payer, was expressly waived. The court simply declared that where the statutory remedy for the collection of taxes is “ plain, speedy and adequate,” there exists no reason to invoke the equity powers of the court to displace the legal remedies provided. Whether any lien for the taxes in that case existed does not appear, and there was no allusion to the question involved in this ease.
The case of Douglas v. Houston, 6 Hammond, 156, and Miami Ex. Company v. Turpin, 3 Ham. 514, are not analogous and illustrate no phase of the case in hand. Neither case discusses nor even alludes to the question of enforcing, by bill in equity, the lien given for taxes against the real property on which the same is' assessed, and for that reason I do not care to remark upon them.
But aside from all authority, upon principle, the grant of a lien in any given case must of necessity carry with it all the usual modes of enforcing it known to the law. Otherwise such grants would be of no avail. It is not supposed the General Assembly would do so useless a thing as to give a lien upon real property for the taxes assessed against it, and withhold all means of making it effective.
It is my opinion the demurrer was improperly sustained to the bill.