Page:Federal Reporter, 1st Series, Volume 1.djvu/111

UNITED STATES. V. PACIFIC BAILROAD. 103 �thing from the collection of the taxes by the ordinary pro- cesses of distraint, or by a suit against the party for the amount of them. In an action of debt no such demand is necessary for the collection, as the supreme court of the United States bas decided, because, when the dividends are declared, or the interest paid, the law annexes to it the obligation to pay 5 per cent, on that amount. But the law does not annex to that any lien on a man's property. The law does not annex to those taxes, astaxes ex proprio vigore, any lien." �In the same opinion he further said that, m view of the extraordinary character of this statute, and of the lien created thereby, "it is reasonable, and it is proper, that ail the steps which the law requires of the party creating the lien in hia own favor shall be pursued strictly." �Is, then, the assessment (in a case like the present, where no return was made) one of the steps required by the law in the establishment of a lien ? I am clearly of the opinion that it is. The regular order established by the statute is : �1. The return or the assessment by which the amount of the tax is fixed. 13 Stat. 225, 230, §§ 12, 21, inclusive; 14 Stat. 101, 104. �2. The notice that the taxes are due, and informing tax payers of the time and place of payment.^ 13 Stat. 232, § 28 ; 14 Stat. 106. �3. The demand for the payment of the specifie sum due from the individual tax payer who may have neglected or refused to pay the same. 14 Stat. 107. �I do not feel at liberty to hold that any one of these steps is non-essential. A demand implies the previous ascertain- ment of the sum due, and this ascertainment is by means of the return or assessment. �The lien is not created by the law itself, without any action by officers under the law, though a debt may be thus created. The liability of the tax payer is one thing ; the creation and enforcement of a lien, especially against innocent parties, is another and very different thing. What I have said is of ��� �