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VOI.DIF VII.
j1 111 I * O 1 { t
OF THE
ILL) LAND COMMITTEE.
MAJORITY REPORT.
To the General Assembly : In ac
,rda • with a resolution approved
pecrmhcr 11 , 18*18 we organized
^ the committee appointed under said
jldtiori on the thirteenth of Decern
1 < 78 .'I he investigation required of
u3 was so extensive in its scope and
magnitude, tlmt we found it utterly
impossible to do the work satisfaeto*
ply and properly unless we devoted
more time an 1 attention to it than we
could, in all probability, give to it
during the the present actual session
acral assembly. We there**
fore, a Ijonrued to meet in Atlanta on
the first Monday in Juno, 1819.
We accordingly meet at the capitol
and have, from that time to the pres
eat heeii engaged in examining wit
nesses. papers and the records of the
\ptld !:t rid office. We have kept a com
plcte brief of the oral testimony given
in before us, together with such state¬
ments of records and papers as we
thought might cast light on the sub**
jeet which we have transmitted to the
house of representatives, where the
resolution npp anting us originated.
We beg leave to submit the follow*
ing statements and conclusions as the
results of the investigation :
1. As to ‘the number and against
what lots of land, giving the number,
district and county, for what years tax
ii. la*', have^been issued by the comp¬
troller-gm: era I of the state, and wheth¬
er legally issued or not/ \Y r e called
upon the comptroller-general for a
statement, as will he seen from our
correspondence with him which is
filed with the brief of evidence, and
k repot tod to us that he had issued
^fh fas. for the years 1874-5-6
and
/ as is a consolidated statement and
not itemized as required by the rose**
lotion ; the comptroller-general ex*
plaining that his office was one of i - c*
oi l'd, and not of l o >k*keeping, and
tcit il would, therefore, require a very
big time and a great amount of labor
tu make the statement as required,
u a etideuv *n d faithfully foj seve
iaM;iys t with the assistance of a skill¬
ed accountant whom we employed for
tlii'purpose, to verify this statement ;
but owing to the facts that in some ln
ciances nice than one fi. fa. is issued
‘Ak'iist the same lot of land, that the
tixesoi) some of the lots were paid af
u ‘ r ’i'e check-marks (indicating the
s were entered against them, and
I ut 111 f 'Se j [particularly were kept in
the office and treated as mere matters
"f iccv/rd, and not of acc unit, we
could not verify it without tracing
lot of land from one book to an.
°fher, and from year to year.
Tiies e remarks apply only to the
j years 1874, 1875 and 1876. The books
; used in the office containing the
transact it UIS concerning the taxes for
I - 1 jour Is ( 7 is a most admirable and
,
leady reference.
to whether these fi. fas. were le
issued, we think they were in all
c‘ms whore the land was in default of
both 11 !ll rn for taxes and payment of
taxo S) except in this that the act of
:
.1 section 7, requires
h,t tU“ fi. fas. ‘shall be directed to
^ L °f the where
l ^ county the
a,l( " v *-’ "heroas these fi. fas.
, were
l u 1 b d to all and singular the sheriffs
^ state.’
As to la >vv hxr this departme from
fhe S ,' a!ute w iU affect the validity of
th fi. fas. we are not prepared
to ex
In 111 ln y instances lands which fi.
,
i );l ve issued against have been
r'ven i n to the receivers of tax
H lQrns in re*
the counties, who negligently
Hiade no • eport of it to the comptrol
p 6 * nera! ; and in some instances
®'stake s vv cre made in the wild land
Mfic 'h a| ul fi. fas. issued against
were
m i! > not in default.
r ** n all such cases the fi. fas. are void,
| I iml title could by
pass any sale un
fa, <ln > because they were not in
agauist uureturned wild lands.
^ "hi state two instances of the
f! ‘ u issue of fi. fas. by the comp*
°!lcr. general, on account of the large
s °i i ds,
s; ;if) and the vast uuruber
nter cst 8 involved.
' r '*e book in the wild land office.
>wn <38 the ‘general book/ in
"bich tax
1 1 t’o
' ns were made
tfolle to the cornp-
2 32 '-general are entered, shows that
1 , -*18 "1 f ind, in various
I bie state counties of
of v were given in by Raundo &
u I haltii, ~ ° VV ^ an( I b ox & Co., of
P, e fcaxw * P a 'd by them on
'''O’ of Juiip^, and the 7 ih day
♦
v line A ♦
of August, 1875 (part on each date),
for the year 1874. In /ooking over
the sheriff's return to verify a state
ment of all the li. fas. transferred to
I>. Lott, previously made to us by ihe
comptroller-general, in compliance
with our call upon him for such state
ment (and which statement is attach*
ed to the brief of % evidence), wo dis**
covered that Lott had had more lots
H'fld than the number of fi. fas. he was
charged with in the wild land office.
Investigation revealed the fact that
fi- fas. he was not charged with ir» the
wild land office were fi. fas. against
the lands of Raundo & Co., and Fox
& Co , which were not in default, hav¬
ing been regularly given in to the
coinptro!ler*general and taxes paid
rrn. ie than two years before the issu
ance of the fi. fas.
YV e at once called upon the comp*
trollm-gone) al for an explanation, and
ho furnishes us with an additional
statement of the fi. fas. transferred to
Daniel Lott, which statement is also
attached to the record, and to which
we call special attention, and explain¬
ed that he kept his list in a separate
book in his safe, (ft- copy of which
book, it containing only this transac¬
tion, is attached to the record,) and
that he issued the fi. fas. and transfer¬
red them to Daniel Lott^ because he
(Lott) had paid the taxes as agent in
1875, and claimed these fi. fas. for his
protection ; and that he might idemni
fy himself for the money ho paid. For
all these explanations and transac¬
tions, we re ler to the brief of evidence
and copy of records thereto attached,
and respectfully call your attention to
them.
The committee made diligent search
for Raundo & Co., and Fox & Co.
They telegraphed to Fox & Co., at
Baltimore; Tho telegraph company
reported hack to us that no such peo¬
ple as Fox *fc Co , were known in Bal*
titnore. YY r e ascertained that Raundo
& Co., hail been an Atlanta firm, who
went into bankruptcy in 1871. Two
of the firm now reside in Atlanta, and
have resided here from that time ;
tilt 1 other lives in Louisiana.
They did not own these lauds. They
testified that they never gave any one
authority to give in tends or pay the
taxes, and that they had never heard
of Dr. Lott until asked of him on ex*
animation. The record shows that the
comptroller*general transferred to
Daniel Lott fi. fas. against 228 of these
lots.
We cannot pass this transaction by
without expressing the opinion that
the issuing and transferring of these
fi. fas. by which Dr. Lott got control
of over 100,000 acres of land, was
without the slightest shadow of au¬
thority under the law, and Avas posi*
tively contrary to law.—Cooley on
taxation, 322 ; Reading vs. Finney, 73
Penn. Rep, 467 ; Martin vs.
den, 18 Gratt., 100 ; Bennett, vs.
ter, 9 Wal.,326. Lott testified that
he paid the tax for the sole purpose ot
getting possession of the land. The
comptroller-general claims that he
knew nothing of the frauds perpetra*
ted in the matter.
2. The samQ record shows that T.
H. Malsh & Co., of N r e\v York, in
1875 gave in and paid taxes on fifty
lots for the year 1873, in various coun¬
ties of this state, but by some of over¬
sight or mistaKO in the wild land office,
(i. fas. issued against these lots for the
taxes of 1874, and many of them
were sold. These fi. fas. and the sales
under them are void for .he reasons
already given. We have attached a
list of these fitty lots to our record.
II. As to the number ol fi. fas.
transferred we refer to the statements
made by the comptroller-general to
the committee, already alluded to.
The remarks we male in the first sec*
tiqn of our report as to bouk, etc , are
applicable to this.
There is no separate or distiuct re¬
cord of the amount of a ti. fa. kept in
the office. It can only be ascertained
by tracing its history, i- e., by ascer
taining first whether it is issued, for 1,
2 or 3 years, (which is done by exam¬
ining the digest for these years) ; then
by ascertaining the rates of taxation
in the state and in the county where
the land lies for those years ; even
double the same, and it gives the
amount that the fi. fas. ought to have
been issued for. Thus requiring con*
siderable time and research in any sin¬
gle instances, and rendering it impos¬
sible for us to examine the whole is
sue. wild
As the names of transferees of
land fi. las. are already of record, Ave
made no list of their names, as it
AVould be too voluminous, and because
many whoso names appear on the
EASTMAN, GEORGIA, THURSDAY, JULY 17, 1ST9.
books as transferees of fi. fas, were
such, not for speculative purposes, hut
because they took up fi. fas. against
their own lands, in many instances^ to
relieve them from default,
The testimony shows that the tace
value—that is, the tax and cost ot fi/ty
cents on each fi. fa—was paid to the
comptroller—general when thev were
transferred^ except on the Raundo &
Co., Fox & Co., lots, for which only
the sum of fifty cents per lot, as cost .’I
was paid, the taxes having been paid
in 1875.
YVe are called upon by this clause
of tho rcoolution to report whether
the transfer of these fi. fas. was legal¬
ly made.
The impoitance of this question
has caused us to give it most careful
consideration. We have ascertained
the facts, and consulted the best au—
thorities accessible that we could
find, We have endeavored to co Ill
prebend the history of the various acts
on will lands, and espcciilly the act
of 1874, under which these fi. fas. is¬
sued, that we might gather, not only
from the context, hut from contempo¬
raneous facts and circumstances, the
real meaning and inteutions ot the
legislature.
Alter the most careful considera¬
tion we could give il we have come to
the conclusion that the transfer of
wild lands fi. fas. by the comptroller
general is unauthorized by law. He
cites the opinion of the attorney*gene¬
ral on this subject. Tiiis opinion is
set out in full in the testimony of the
comptroller-general. It merely de¬
cides that these fi. fas. are transform*
ble by the officer whose duty it is to
enforce them. It does not decide that
the comptroller-general is that officer,
though we believe that it was under*
stood by the attorney-general and the
c miptrollersgeueral that the opinion
was intended to and did cover that
point. With great deference to the
learning and known ability of the at*
torncv*gen< ral, we think that opinion
error—one of those errors that any
man, however learned he may be, is
liable to make.
The act of 1874 authorizing the is¬
suance of fi. fas. requires that they be
issued against the land. This fact
alone would prevent their transfer by
anyone, and section 891 of the c ide,
which is cited by the attorney-general
as the authority for the transfer, does
not point to, and can not control, these
fi. fas., because that section relates to
execution against persons.
This section of 891 of the code
limits the power of transferring tax
ti. fits, issued against persons to the
enforcing officer. The comptroller*
general is not such an officer ; he can
j not levy aud sell ; he can only issue it.
Even this act of 1874 requires those
fi. fas. to be executed by the sheriff ol
the county where the land lies when
it commands that they be directed to
that officer.
It is contended that the comptroller
general is an officer whose duty it is
to enfore the execution, because he
can control the ti. fa by ordering the
levy and sale, or by suspending the
sale. Even if this were true, a suffi*
cieut reply would be that that the
plaintiff in an ordinary execution could
do the same, but he cannot execute
the wjit. lie must appeal to the ofii*
cer to whom it is directed under the
law. Without, such officer there could
be no enforcement of the fi. fa. But
their premises ate wrong, for the
comptroller-general is vested with no
discretion. His duties are marked out
by the act, and he must pursue them
without deviation. He lias no con
Ugl over the time, place or manner of
the sale. This is with the sheriff un*
der the law. He cannot suspend, or
postpone the sale by the sheriff under
these fi. fas. The governor alone can
do that, and he only for a limited time.
Code, section 75.
These reasons, in our opinion, are
sufficient to establish the fact that the
comptroller general could not ttansfer
the fi fas ; but the gieat question is,
were the fi tas transferable at all? We
think not. The history of all the wild
land tax legislation in Georgia demon¬
strates the true intent and meaning of
the act of 1874. All previous acts fail¬
ed to provide sufficient protection to
the true owners, and the evils likely to
grow 1 out of the enforcement of those
laws were very apparent aud they
were never cm orced. The executive*
from time to time, suspended their en¬
forcement, and they were all repealed
on maturer thought.
The legislature of 1874, to obviate
the difficulties of the previous acts, as
to a proper protection to the owners
vi ho, in main cast s, w ere uni epi o-ont
ed estates, widows, orphans and luna*
tics, passed this acf, throw ing every
tine owneis ;‘ r " and nm ! the , lbc c .Hate, (for ‘! the ,e
State is the true owner of hundreds of
these lots) by requiring the comp*
tro'ler to keep a complete record <»f the
numbers of all such land and the
amount of taxes collected thereon, aud
to whom sold, and requiring him to
receive the purchased money and pay
it to the true owner on his making sat¬
isfactory evidence of his title to the
comptroller general. The comptroller
general is required by every construe*
tiou of the act to watch and protect
the interests of the owners, lie is a
trustee for their protection. By no
principle of law or policy could he
transfer this trust to an irresponsible
stranger. If the State could part with
all its powers and rights by a transfer
of the fi fas as claimed, why require the
sheriffs to make returns to the comp*
troller ? This act requires the comp¬
troller general to keep up with the
history of every lot he issues a fi fa
against. It is beyond human power
to do this if the fi fas are in the hands
of hundreds o? uunfficial speculators,
as they now are.
The act clearly contemplates no pow'
er or agency between the comptroller
general snd the sheriffs, but provides
for dixeet intercourse between these
officers. Any transferee coming be¬
tween them is an interloper and an
enemy to evevy interest of the State
and its citizens.
In stating these views we deem it
proper to go further and say that no
title did or could pass at any sale had
under transferred fi fas.
Hire are two good reasons for this
outside of all questions of /raud.
First. These sales are conducted by
and dictated as to time, etc., by unau*
thorize 1 parties who had no power to
represent the State and the true own¬
ers, as they seemed to do, manipulat¬
ing the sales and all their consequences
to suit themselves, and whose inter*
osts are in direct conflict with the inter¬
ests of the true owneis of the land and
the State
We assimulate these transferees to
a stranger who unlawfully gets pus*
session of a fi fa and forces the defend*
ant’s property to sale without the con*
sent of, or authority from the plaintiff
who is especially interested in the re*
suit of the salOj and which is known
to purchasers at such sale, as all pur*
chasers arc bound to know at these
salts.
The second reason we allude to,
why these sales were void is, that
when these transferees paid, such pay*
merit instantly became an extinguish¬
ment of the Slate's claim for taxes and
the power to sell for such taxes forever
extinguished. It was a payment of
the tax, because the receipt ot the
taxes was the extent of the comptroll*
er general's authority, and a payment
of the tax, whether by the owner or
any one else, will void the salo. 73
Penn. Rep. 467, and the other authori*
ties above cited.
We have made as thorough an in¬
vestigation as we could, in the time we
had, as to whether any of the public
officers of the State were interested in
any of the ti fas and sales.
We could find no evidence that the
comptroller general had any interest
in the transactions except his charge
for costs. But w r e’are pained to have
so report that Dr. A J Bell, a clerk in
the wild land office, aud who was the
active managing party to the transfer
of fi las, who principally kept the re’
cords and conducted the corresponds
enee on this subject^ was engag’ed in
the speculation. To what extent we
are not fully satisfied. The testimony
connects him with many lots up to a
cerlain point; he then disappears.
In one instance he used a fictitious
name on the records as transferee, and
thereby reserved the lots charged to
this fictitious person for Ins own bene*
fit. The evidence discleses all the min¬
utiae of this transaction.
We take occasion here to say no
suspicion can attach to either Mr. ,,
\ light or Mr. Hardeman, clerks in
the wild land office, in any of the wild
land transactions. Their conduct has
been proper and right in every point
we investigated.
We respectfully refer to the evidence
on this subject.
The proceeds of those sales had un_
der these fi fas have, in a majority of
cases, been absorbed, wholly or in part
by the transferees, either by charging
against the fund arising from the sale,
excessive in costs, which they did
pay, or by protending t„ be tbe true
owneis of the land, and inducing
sheriffs to turn the excess over to them
as such true owners, and in many in
stances combining both ways. wavs. Ti e
sheriffs permitted them the “> to to do *«•««- this
der der a a circular circular issued issued by by the the comptroll- comptroll¬
er general ----- 11 to them, - 1 dated ’ ■ ’ November 1T ■
1 , 1877, instructing them as follow’s :
,f In all wild laud sales the excess of
money over and above taxes and all
costs, must be paid over to the owner
of the land, if to be found at the time
of tho sale, or if the owner is not to Joe
found, then said sum of money in ex¬
cess of taxes and costs must be sent to
me to be deposited in the treasury to
the credit of the owuer as a trust
fund”
Taking advantage of these instruc*
tions of the comptroller general to the
sheriffs, in some instances transferees
Would gather up any kind of titles,
however fictitious or fraudulent, made
for the express purpose and present
them to the sheriffs, and under them
claim the entire proceeds of the sale.
They yet hold these moneys—in
some cases large amounts. As an in
stance of this we refer to the evidence
showing that the transferees in Dodge
county retained aoexcessof $9,142.92
and tthat Dr. Lott has returned the
entire proceeds of the sales in twelve
counties.
But the most common way of do
frauding the true owners ar,d the state
lias been in excessive charges for costs.
In almost every instance the transfer*
ees have made contracts with news*
papers to do the advertising by the
square, thus getting it done for about
ten cents a lot, and when they settled
with the sheriff or the state they de¬
ducted from the proceeds ol the sale
from $2.50 to $5.00 a lot, generally
$4 00 being charged.
This is, of course, illegal. There is
no law fixing the printer's fees.—
Whatever is actually and in good failh
paid for advertising a levy can he tax¬
ed as costs against the fund arising from
the sale of the land, and no more.
They also made contracts with sher¬
iffs to have the sales made for a small
proportion of tMe usual costs of sher¬
iff's levies and sales, and they charg¬
ed in their settlements full sheriff's
costj and in many instances more than
sheriff's costs.
Sometimes they would charge $2.00
a levy of one ol tiiese fi fas, when the
act of 1876 expressly fixes it at thirty
five cents. In many instances they
would charge $3.50 for making a deed
they being the purchasers, and sevtn
ty-five cents for recording the deed.
As an instance of this we refer to the
sheriffs return of ihe sale of lands un¬
der Mr. Garmany’s fi fas, in Terrell
couiny. We believe that every offi¬
cer and person acting in these sales, if
he were acting legally, is bound to
render a true account to the true own*
er or to the State when called on so to
do.
They would be quasi trustees for the
true owner, or the state, as the case
may be^ and cannot charge a greater
price than that paid for any services.
It has been impossible for us to as¬
certain the amount of this excess in the
hands of ihe various transferees. It
would require the committee many
months to ascertain it. It would re
quire a calculation as to each and eve¬
ry lot of land.
This is all in a sea of chaos and a
world of confusion. It can never be
straightened. While we are on this
subject, we respectfully call your at
tention to that circular of the
troller general to sheriffs, above allud
ed to The act of 1874, section 8 ex
pressly charges the comptroller general
wiiti Bill, the tho duty f i„tv of r,f deciding j* „ who those
line owners are. It is an official duty
cast upon him that he cannot delegate
to sheriffs.
Much ot the confusion that has grown
out of these wild land matters is di
rectly attributable to this circular.
We find a great many frauds ot
various species and kinds practised by
t tCbe tiansfeiees and others at sales,
In many instances they bulled and
beared the market by many unlawful
meaiiS a «d devices too numerous to
rmmfirinmtiiidmnn.* mention in this report. rn, Tbe evidence *,
discloses many of them. YY e are s^t
isfied that a volume of evidence of such
frauds could be gathered. We were
compelled to pass over a great many
evidences of this kind, because we had
not the time to include them in our in¬
vestigations. We onl 3 ' include fair ex¬
amples of them. To unearth them all
would be an endless task ; for, as one
of the heaviest transferees himself ex
pressed . it while testifying before our
committee, “The land sharks went
every man for himself and the devil
toko the hindmost/.
there is no record of sales in quite
a number of count'Vs ir< the comptroll.
er genera/s office, the transferees and
sheriffs having made no returns or set
n«™»t *■«»> ^ »moe.
In some counties sales were made
by the sheriffs fur the transfeis •* without - *
first making levies, and without even
having the li fas in hand on day of
sale.
^ The comptroler-gencral has allowed
^ _ _
these excessive costs to be deducted,
by the transferees, notwithstanding he
was informed of their proceedings,
lie replied to complaints made to him
on the subject that he had nothing to
do with it.
We think the primary cause of all
these frauds and troubles is attributa*
hie directly to ‘the misapprehension of
the law, for had the law been fairly
administered in its letter and spirit the
frauds could not have been commited,
and there would have been no coiHu
sion. And if, perchance, the courts
or legislature should hold valid or
ratify these sales, we see no reason
why tne comptroler-general would not
be liable to the state on his official
bond for all these moneys in the hands
of the transferees or others. The state
cannot condescend to litigate with
these hundreds of people now holding
these money, but should, in the event
alluded to, look directly to tho officer
whose mistakes diverted it from the
tieasury, leaving him to look to the
people lie dealt with for his indemnity,
AVeare called upon by this resolu
tion to report concerning the moneys
... from tho wild land .
arising transactions.
We, therefore, called on the comptrol
ler-geneial for a statement of amounts
received from September 1, 1877 to
June 1, 1819, *43,013 14; and that’ he
paid out $(33,029,08, leaving in lus
hands $10,176,06. We find that he
has paid out to these transferees $8,*
176.26 in redemption of fas. he had
previosiy • , sold , . and , , transfered n i to . them . i
without any warrant from the govern
or, but on his own responsibility, and
yet holds in his hands this balance of
$10,684,06 to pay out tho same way.
We w ,1 think • , this 18 • an open violation ... ol ,
the constitution and laws of tiiis state,
This money became public money the
moment it passed into his hands and
could on,y he paid out as the law
directs, 1 . e. upon the warrant of the
governor cotintersinged by the comp
troler ■general and paid by the treasur
tr, and then only on appropriations
first made for that purpose by the leg
islature. article 3, paragraph XI,
constitution 1877, code 76
If the law gave the comptroller
general i authority .. to make , these
trades with the transferees, as lie
commends, it certainly gives him
none to cancel them with the pubhc
nioney. The matter ought he look
ed closely into, as there is no check on
the actions of the comptroller-general
and is rendered doubly important by
the fact that no cash-book is kept in
,I the „ wild -iv i land v office—nothing . but .
°
stubs of receipts.
It may be necessary of the expense
we have incurred in this investigation.
On this subject we have been extremly
cmetul n , to 4 , have the .
necessary service
done at the least possible expense, con
trading for the lowest fingures. Tne
out side service we have employed
1,as been efficient and faithful, ’ and
should , ,, , be paid. We therefore, . ask
that the auditing committee of the
house representatives audit the ac*
count and report it for proper ac
‘
j.* f)n ‘
e think the testimony . taken in . this ,
matter is 8 fair e *P 0Mre of t,ie fl ' lll " ,s
and to be J properly "J understood by the
• , 1 ould , printed. . .
,= re, 3 >c , We,
theiefore, lecoraraend that it be
printed for tha use oftbe general as
sembly.
In view of the wholesale frauds com
_... ni e i 111 Jese a tl ' ansac t 1 on8 we res
P ect ^ u ^y recommend that the legisla
nu q an j vo id, as some of the courts
have already decided; and another
limitation or law of prescription from
a!l such tltle8 ’ or" others founded on
t hem, ’ or emannating ^g7 from tliem: and
thiB c nmmittee ei , vt . to continue
their organization for tlie purpose of
preparing these bills and reporting
them as soon as pos'ble.
Flssell,
„
“ l!7 Ak
John C. Mac no,
Oii Darkish D. Davis,
the part ot the house.
MINORITY REPORT.
To the senate and house of repres
entatives— the undersigued, a rumor
j 0 *'' 11 special committee ap*
under^a resolution approved
™/sf/ue the' thU
state' being unable to concur with
NO. 29.
the majority in some of the conclusions
at which they have arrived, begs leave
to submit the following report: While
Z
have been commited bv some of the
transferees * - of *• executions • issued • • for -
taxes of lands against under wildjands, said executions in the in varis salo
ous ways, but especially by claiming
and collecting had exorbitant paid,* and costs which
they ___________ never _ _____ to which
they were not entitled, and by appro*
P by l > a tinig.to means tln of nisclv fraud es, lent as cor.verances true owners
gotten up for that purpose, all the
excess of sales over and above taxes
and costs, we do uot believe the trans¬
fer was illegal.
'fhe reasons upon which wo base
this oppinion are as follows: Wlieu
the wild land act of 1874 was passed,
section 891 of the code was in force,
as it is to-day. That section is very
broad in its application, embracing in
in the language of the code ‘any exe¬
cution issued for state county or mun¬
icipal tuxes, or any other execution
issued without the judgement of a
court, under any law/ These fi. fas.
areexcutions issued under a law with¬
out the judgement of a court for state
and county taxes, and as the act of
1874 does not repeal the act of 1872,
nor make any exception of tax fi. fas.
against wild land, we think the in ten*
tion of the legislature was to put them
on precisly the same footing as any
other tax ti. fa.
If we are correct in this conclusion
the comptroller-general did situ
l*ly .!•« <luty when ho made the trans
tors. Indeed, he could not have done
otherwise, because the language of
the law is not permissive only but
mandatory, the officer whose duty it is
to cufuce s.ud execution, shall, upon
the request of the ,‘ party so paying tho
, ninsfcl . sak execution to said
party/
But it is said that tho sheriff, and
11 ^ 1C comptroller, is the, officer
^ to enfhroc said cieou.
interpretation of the law. The lan*
guage of the act of 1872 is, ‘and tho
transferee shall have the same rights
<*s to enfoieing said execution as might
have been exercised or claimed before
suj<) transfur , Ag t hnve beell
exercised or claimed by whom before
said transfer? Evidently by the office
making the transfer. All the power
Jl.e slicriff had below the transfer was
to levy, advertise and sell according
to law, when ordered Ly the comp
troller to do so. No one will cl lim
that the transferee has any such pow**
< r s a ^ t l ^ 1C B'msfer, either with or
^!n . t mlZg
can do. But he can do, after tho
transfer, everything that the comp
I ruler could do before. He can turn
^ eseciuion over to tho sheriff accors order
ding to law. When lie has done this
he has exhausted his powers. lie can
do no more. Before the transfer tho
comptroller, and no one else, could do
precisely Jf the same things. Thus the
powers tho o nnpti•oiler before tho
transfer are identical with the powers
ol the transferee after the transfer,
From these considerations we be*«
^^st/^nSr^ by
[ aw to make the transfer,
But supposing the act of 1872 ati*»
thorizing the transfer of tax fi fas does
j lo t a Pply to executions against wild
land, and that such transfers are uuau
tuonzed i by law i .. still *-u we cannot see
how blame can attach to the cornptrol
ler general for making these transfeis.
^ ie ev idcnce discloses the fact that as
a matt< -‘ 1 of policy he was opposed to
the transfer, and would not make them
llutil , 10 ,, 3 j beon f ,„. llishod Wltti th(J
opinion of the attorney-general that
the act or 1872 autherizad it. The
‘Btorney-general is the officer by the
« the legal adviser of the
executive department. 4 he coinptrol
ler-general’s office is an executive
office, lie is charged specially with
the duty of executing or enforcing the
tax l avv s of the state. \Y hen ho is in
doubt as to the proper conatru ;ti<JD to
be put upon any law it is his duty to
seek the opinion of his logal adviser,
,ie 8titied .'•.**. disregarding 11 h f. cou ! 1 '
!?/“ He is bound J u to regard in it true it
as me
c0DgtlU0l ( 0I1 c f lbo ( aw n0 matWl .
whether it be right or wrong,
legality Entertaining these views as to the
of the transfer of these exe
cut ‘ ona an<1 ty ie P' )W ei ' ot lhe com P
troller-general , to make , it cannot
we
concur with the majority of the com*
mittee in their sweeping recommenda*
void. Such a course would intl.ct
ofinnoceut very great injury upon a large uumber
purchasers at fair sales in
which no wrong was attempted. Iu
deed while the amount of land is very
great the uninbe, ol transferees and
purchasers at fraudlent sales is very
small,
But the greatest objection to the
course is recommended by the maj r.ty
that to pass such an act would be
to usurp the prerogative of the judi¬
ciary a co-ordinate branch of the
government. This we can not do. The
constitution forbids it, and any such
act, if passed would be q s > !7.c o void.
It would be far wiser to attempt no
retroactive legislation but leave all
these intrio ite legal ques’ions to He
decided by the courts—the tribuna s
established by the constitution—to
A D. Candler,