at the inquest, which testimony shall be filed by the coroner in his office and preserved. Section 22 provides that the coroner shall keep a record of each inquest.

The foregoing are the principal sections of the Statute which relate to the inquest of the coroner; and from the nature and character of the proceeding, as it has been recognized by courts and law writers, we must determine whether a coroner's inquisition should be used as evidence in a case of this character. It will be observed that the evidence of all witnesses examined before the coroner is required to remain in his office, while the inquest must be sealed up and returned to the clerk of the circuit court of the county, where it shall be filed. Thus the inquest becomes, by force of the Statute, a record of the circuit court,-a public record of the county where the inquest is held. It is a record containing the results of a public inquiry, made by a public officer under authority of law, relating to matters in which the public have an interest. Shall it be held that a public record of this character shall not be evidence in a judicial proceeding tending to prove the facts found to be true on the face of such record? We are not prepared to adopt a rule of that kind. Moreover, we believe the weight of authority to be in favor of the admission of such evidence.

1 Starkie, Ev., 1309, seems to lay down the rule that an inquisition is admissible in evidence. He says: "In Sergeson v. Sealy, 2 Atk. 412, Lord Hardwicke said that inquisitions of lunacy, inquisitions post mortem, and others, were always admissible, though not conclusive. In the case of Burridge v. Earl of Sussex, 2 Ld. Raym. 1292, an inquisition post mortem, setting out the tenor of a deed, was held to be evidence of the deed."

1 Greenleaf on Evidence, § 556, in speaking of inquisitions, says: "These are the result of inquiries made under competent public authority to ascertain matters of public interest and concern. They are said to be analogous to proceedings in rem, being made on behalf of the public; and that therefore no one can strictly be said to be a stranger to them. But the principle of their admissibility in evidence between private persons seems to be that they are matters of public and general interest, and therefore within some of the exceptions to the general rule in regard to hearsay evidence. The general rule in regard to those documents is that they are admissible in evidence, but that they are not conclusive, except against the parties immediately concerned and their privies." See also, 2 Phill. Ev. 5th Am. ed. 262; 2 Taylor, Ev. 6th ed. § 1487, where the same doctrine is announced.

In People v. Devine, 44 Cal. 452, the question arose whether the evidence of a witness taken before the coroner could be used to contradict the evidence of the same witness subsequently given on a trial in court. In considering the question, it is said: "The testimony had been returned into court as part of certain proceed

mon law, the coroner holding an inquest super visum corporis is in the performance of functions judicial in their character (Reg. v. White, 3 El. & El. 144; Giles v. Brown, 1 Mill. Const. Rep. (S. C.) 231; Boisliniere v. St. Louis Co. 32 Mo. 375); so distinctly judicial that he is protected under the principles which protect judicial officers from responsibility in a civil action brought by a private person (Garnett v. Ferrand, 6 Barn. & C. 611). Whether his proceedings be entered upon the coroner's roll at common law and the Statute of Edward, or returned into court under our own Statute, they amount to entries concerning matters of public interest, made under the sanction of an official oath, and in compliance, or presumed compliance, with the requirements of law. In our investigations we have not found any authority in text books or adjudicated cases which distinguishes between these and any other official proceedings taken and returned in the discharge of official duty, as to their admissibility in evidence upon the principle referred to." See also Faulder v. Silk, 3 Camp. 126; Sills v. Brown, 9 Car. & P. 601.

The citation of other authorities would seem to be unnecessary. We are satisfied, both upon principle and authority, that the coroner's inquisition was admissible in evidence. The inquisition was made by a public officer, acting under the sanction of an official oath, in the discharge of a public duty enjoined upon him by the law; and when it is returned into court. and is filed, we see no reason why it shoul not be competent evidence tending to prove any matter properly before the coroner whicir appears upon the face of the inquisition. We do not hold that such evidence is conclusive, but only that it is competent evidence to be considered.

Reliance is placed by the plaintiff on Pitt: burgh, C. & St. L. R. Co. v. McGrath, 115 I. 172, 1 West. Rep. 643, as an authority sustain ing the ruling of the circuit court. That was an action brought against the railway company to recover damages for the killing of plaintiff's intestate, and on the trial the court excluded the deposition of a witness taken before the coroner. That ruling was approved, but whether a coroner's inquisition was admissible in evidence was not raised, nor was it decided, and hence the decision cited and relied upon has no bearing whatever on the question presented by this record.

We are of the opinion that the court erred in excluding the inquisition, and for that reason the judgment of the Appellate and Superior Courts will be reversed, and the cause remanded to the Superior Court for another trial.

Bailey, J., having heard this case in the Appellate Court, took no part in its decision here.

Baker, J., concurring:

I concur in the view of the case taken in the opinion of Justice Craig. The appellate court

evidently misapprehended the scope and effect of the decision of this court in Pittsburgh, C. & St. L. R. Co. v. McGrath, 115 Ill. 172, 1 West. Rep. 643. That case is authority to sustain the action of the superior court in excluding from the jury the depositions taken at the coroner's inquest, but not to justify the ruling against the admission in evidence of the inquisition itself, that is, the verdict of the jury, as independent evidence of suicide. In fact, no question in regard to the inquisition arose in that case. The courts below were probably misled by the inadvertent use in one place in the opinion of the word "inquisition" instead of the word "deposition" or "testimony.' It is apparent from the context that one or the other of these latter words were intended, for otherwise the expression is inaccurate. At common law, and in this State until the adoption of the Constitution of 1848, a coroner and his jury, holding an inquest post mortem, constituted a court, with judicial power. Our present Statute in regard to coroners is substantially a re-enactment of the Statute of 4 Edw. I., and that was held to be merely in affirmance of the common law. In early days, the finding of the coroner and his jury was regarded as a judicial determination of a very absolute and binding character; and my Lord Coke considered an inquisition of felo de se, taken by the coroner super visum corporis, to be conclusive evidence of the fact against the executors or administrators of the deceased. Through the influence of Lord Hale the doctrine was modified to the extent that it was settled that such inquisition might be traversed, he conceiving it unreasonable that the executors or administrators should be concluded by an inquisition which might be taken by the coroner behind their backs, without an opportunity afforded them to make answer. The rule which now obtains, as appears from the text books, and also, almost without exception, from the decided cases, is that inquisitions post mortem are admissible in evidence, but are not conclusive. The general doctrine, as stated in 1 Greenleaf on Evidence, § 556, is that these inquisitions are within the exceptions to the rule in regard to hearsay evidence, and are distinguished from other hearsay evidence in having peculiar guaranties for their accuracy, and are the results of inquiries made under competent public authority to ascertain matters of public interest and concern, and that no one can be considered a stranger to them. The only difficulty in respect to the admissibility in evidence of the inquisition itself is found in the fact that section 1 of article 6 of the Constitution of 1870 provides that "the judicial powers, except as in this article is otherwise provided, shall be vested in one supreme court, circuit courts, county courts, justices of the peace, police magistrates and in such courts as may be created by law in and for cities and incorporated towns." Said article 6 disposes of all the judicial power of the State, and completely exhausts the subject, and a coroner's inquest is not provided for therein. So it is certain that in this State, and under its present Constitution, the coroner and his jury do not constitute a court, and are not clothed with judicial powers, as was the case at common law.

The inquisition not being the result of a judicial proceeding, is the old common-law rule

of evidence that it is competent testimony thereby abrogated? I think not, and am of opinion that common-law principles and the analogies of the law and the decisions of this court justify such conclusions. The provision found in section 1 of article 5 of the Constitution of 1848 was substantially that contained in the present Constitution. An Act of March 3, 1845, made provision for an inquiry before a sheriff and a jury into the right of parties claiming property on which the sheriff had levied an execution.

In Rowe v. Bowen, 28 Ill. 116, the point was made that this inquest or trial of the right of property created by the Statute for the purpose of enabling the sheriff to interpose the verdict of a jury as his justification for selling the property, or restoring it to the claimant, as the verdict might direct, had been abolished by the Constitution of 1848. The court held otherwise, and that said law was in no respect in derogation of the Constitution. It was held that the verdict of a jury under this Statute afforded a complete indemnity to the sheriff, and it was there said: "In the inquiry or inquest the sheriff decides nothing; nor does he, nor the jury, pronounce any judgment. The jury sign and render a verdict only, and to the effect that, from the facts before them, the property, prima facie, belongs to the claimant, or to the defendant in the execution, as the case may be, so far as the writ is concerned." Of course, under this decision, the verdict of the jury. found at the sheriff's inquest, would have been admissible as testimony in favor of the sheriff in suit brought by claimant for selling the property, or in suit brought by the execution creditor for abandoning the levy, or against the sheriff in suit prosecuted by the claimant for selling after a verdict in his (the claimant's) favor.

In Andrews v. People, 75 Ill. 605, it was held that the Act of 1873, making the collector's return in writing, and under oath, to the sheriff or county treasurer, of the taxes levied by a town or city due and unpaid, prima facie evidence that all the requirements of the law had been complied with in the assessing and levying of the taxes therein returned as unpaid, and that said taxes were due and unpaid, is not liable to the constitutional objection that it gives the collector judicial power to determine the question of delinquency, since this report is only made prima facie evidence of that fact.

In Spencer v. People, 68 Ill. 513; Porter v. Rockford, R. 1. & St. L. R. Co. 76 Ill. 561; East St. Louis Connecting R. Co. v. People, 8 West. Rep. 342, 119 ill. 182; St. Louis, B. & T. R. Co. v. People (Ill.) 21 N. E. Rep. 348, and in numerous other cases, this court has held that the valuation for taxation of certain kinds of property is by the Statute committed to the state board of equalization, and that its decision is judicial in its nature, and can only be assailed for fraud or want of jurisdiction. So, also, at common law, inquisitions of lunacy and inquests of office are admissible in evidence; and it is not understood that the provision of our State Constitution in question has rendered them incompetent as testimony. Moreover, under our Statutes, the findings, reports or schedules of various commissioners, boards and officers are either made competent evidence or prima facie evidence in express

terms, or are given the legal effect of evidence. See Rev. Stat. 1874, chap. 24, § 145, in respect to commissioners appointed to make special assessments; section 8, of the Extortion and Unjust Discrimination Act, in respect to schedules made by the railroad and warehouse commissioners; chapter 2, § 11, in regard to auditors in actions of account; the provision of chapter 10 with reference to the awards of arbitrations; the provisions of chapter 41 in regard to commissioners to assign dower; the provisions of chapter 106 in regard to commissioners to make partition; and various other statutory provisions of like character, too numerous to specify. My conclusion is that, while under the Con

stitution the coroner and coroner's jury no longer compose a court with judicial power, yet the inquisition or verdict made by them, and which is required to be returned to and filed in the office of the clerk of the circuit court, and which thereby becomes a record of that court, is competent testimony, and that the ruling of the trial court in the case at bar, refusing to admit in evidence the verdict of the coroner's jury which inquired into the matter of the death of Otto Wilhelm Kielgast, deceased, was erroneous; and I concur in the conclusion that for error the judgment should be reversed, and the cause remanded to the superior court for another trial.

LOUISVILLE WATER CO., Appt.,

v.

COMMONWEALTH OF KENTUCKY et

al.

(....Ky.....)

3 Lea, 679; McInerny v. Reed, 23 Iowa, 410; Merriam v. Moody, 25 Iowa, 172; U. S. v. Lyman, 1 Mason, 482; U. S. v. Washington Mills, 2 Cliff. 607; Meredith v. U. S. 38 U. S. 13 Pet. 486, 493 (10 L. ed. 258); Dollar Sav. Bank v. U. S. 86 U. S. 19 Wall. 240 (22 L. ed. 82). In addition to the foregoing authorities hold

which the taxes are demanded is not included.

(October 30, 1889.)

APPEAL by defendant from a judgment of the Louisville Law and Equity Court in favor of plaintiffs in a proceeding for the collection of certain taxes. Reversed.

when no other remedy is given by statute for the collection of taxes, there is another line of cases which hold that the government may sue for taxes even though a different remedy be pointed out by statute.

Dollar Sav. Bank v. U. S. 86 U. S. 19 Wall. 227 (22 L. ed. 80); U. S. v. Lyman, supra; U.

S. v. Washington Mills, 2 Cliff. 601; Meredith v. U. S. supra; U. S. v. Truck, 28 Fed. Rep. 846.

This proceeding is exclusively in rem against the property of the Water Company. It is simply a judicial proceeding to enforce a lien which the statute expressly gives, but for the enforcement of which it provides no mode of procedure. The remedy by sale of property to enforce the lien is not applicable to a case like the one at bar.

Louisville Water Co. v. Hamilton, 81 Ky. 522,

523.

The Legislature has imposed a moneyed obligation or liability upon the corporation and in express terms gives a lien on the property of the person liable to secure the payment of the money thus due. But it provides no mode of procedure at all for the enforcement of this lien, and equity can enforce such a lien by proceedings adapted to the nature of the property.

of a special remedy for collecting taxes will not exclude the right to collect by suit, unless such clearly appears to have been the legislative intent.

Dubuque v. Ill. Cent. R. Co. 39 Iowa, 56, 74; New Haven v. Fair Haven & W. R. Co. 38 Conn. 422, 9 Am. Rep. 399; Geneva v. Cole, 61 Ill. 398; Dunlap v. Gallatin Co. 15 Ill. 7; Ryan v. Gallatin Co. 14 Ill. 78; Camden v. Allen, 26 N. J. L. 398. See also Board of Education v. Old Dominion, I. M. & Mfg. Co. 18 W. Va. 441; Andover & M. Turnp. Corp. v. Gould, 6 Mass. 44.

In the cases holding that a tax cannot be recovered by suit it will be seen that the statute law of the State provided a different remedy which was deemed exclusive.

See Packard v. Tisdale, 50 Me. 376; Augusta v. North, 57 Me. 392; Hibbard v. Clark, 56 N. H. 155; Staley v. Columbus, 36 Mich. 39; Crapo v. Stetson, 8 Met. 394; Peirce v. Boston, 3 Met: 520; Shaw v. Peckett, 26 Vt. 482.

In England informations of debt (a legal remedy) and exchequer informations (an equitable remedy) to recover duties on importations, and other dues of the Crown, have always been common, even though the Acts of Parliament provided a different mode of collection.

Dollar Sav. Bank v. U. S. 86 U. S. 19 Wall. 240 (22 L. ed. 82); U. S. v. Lyman, 1 Mason,

The cases holding a contrary doctrine are mostly cases in which an individual sought to compel the levy of a tax as a means of collecting his debt.

Meriwether v. Garrett, 102 U. S. 472 (26 L. ed. 197); Thompson v. Állen Co. 115 U. S. 550 (29 L. ed. 472); Walkley v. Muscatine, 73 U. S. 6 Wall. 481 (18 L. ed. 930); Rees v. Watertown, 86 U. S. 19 Wall. 107 (22 L. ed. 72); Heine v. Levee Comrs. 86 U. S. 19 Wall. 655 (22 L. ed. 223).

The Kentucky decisions are not out of the line of authorities which hold that where a tax is imposed by a statute, and no remedy provided for enforcing its payment, or a lien is given to secure it, and no means provided for enforcing the lien, resort may be had to judicial proceed ings to enforce the obligation or the lien.

See Portland Dry Dock & Ins. Co. v. Portland, 12 B. Mon. 77; Instone v. Frankfort Bridge Co. 2 Bibb, 578; Thompson v. Buckhannon, 2 J. J. Marsh. 417; Tull v. Geohagen, 3 J. J. Marsh. 377; Prather v. Davis, 13 Bush, 377; Russell v. Muldraugh's Hill, C. & C. Turnp. Road Co. 13 Bush, 310; Brightwell v. Com. 79 Ky. 539; Stephens v. Miller, 80 Ky. 49; Johnston v. Louisville, 11 Bush, 533; Meriwether v. Garrett, 102 U. S. 514 (26 L. ed. 205); Elizabethtown & P. R. Co. v. Elizabethtown, 12 Bush, 233; Lincoln Co. Ct. v. Louisville & N. R. Co. 3 Ky. Law Rep. 438; Louisville Water Co. v. Hamilton, 81 Ky. 517; Jones v. Gibson, 82 Ky. 561.

Holt, J., delivered the opinion of the court: The property of the Louisville Water Com pany not having been assessed for state taxes for the years from 1882 to 1885, inclusive, the sheriff of the county, in obedience to statutory provision, returned a list of it for each of those years to the county court clerk, who entered the same upon the assessor's books, and certified it to the state auditor, and also to the sheriff for collection. The Company refused payment, claiming that it was exempt from taxation under an Act of the Legislature. It is a corporation, and, as its name indicates, supplies the City of Louisville with water. The property assessed was that in use for this purpose. It could not, therefore, be seized and sold by a collecting officer, as this would deprive the city of water. Its safety, as well as the health and comfort of its citizens, required the exercise of the corporate franchise, and forbade interference with it by a sale of the means necessary to operate it. The sheriff thereupon brought this action in his own name, but subsequently, by an amended petition, united the Commonwealth as a co-plaintiff, asking that the Company be compelled to show cause, if any existed, why it should not, within a given time, pay the taxes into court, and, in the event it failed to do so upon the court's order, that it be placed in the hands of a receiver, and its receipts applied to their payment.

Various defenses were presented. But one question requires notice, however, as it is decisive of the case. The lower court, upon final hearing, was of the opinion that the Company was liable to taxation, and ordered it to pay the taxes into court within a certain number of days. This it declined to do, and thereupon a receiver was appointed, and the Company has

appealed. It was held by this court, in the case of Baldwin v. Hewett (Ky.) 11 S. W. Rep. 803, that taxes could not be recovered by suit in the absence of legislative authority; and, there being no statute to this effect in this State, save as to railroad companies, an action for such a purpose could not be maintained, even in the absence of any other adequate remedy. There an administrator had failed for several years to list and pay the taxes upon the assets in his hands, consisting altogether of choses in action. When the suit was brought seeking a recovery against him as administrator, he had distributed the estate, and it had been removed by the distributees out of the State. It is urged that this case differs materially from that one; that here the statute gives a lien upon the property for the payment of the taxes; and that the proceeding is in rem, no personal judgment being sought. If, however, no right exists to use the courts as a vehicle for the collection of tax claims, we fail to see any difference be tween the two cases. It is said, however, that in the case cited an adequate remedy in fact existed, but was ineffectual, while here there is none whatever; and that in such a case the right to sue should be implied as a matter of neces sity. We do not grant that such a difference exists between the two cases. If the administrator had still been in possession of the assets, no suit could have been maintained against him for the taxes, although the estate could not have been seized for them, as it consisted of choses in action. It is true, they might have been reached, in the manner provided by statute, by the summary mode of attachment by notice served upon those owning them, if the debtors could have been found, and a judgment obtained in the county court, but this would have been because the Legislature had expressly provided such a mode of collection. Granting, however, that there is a difference between the two cases, and admitting for the sake of further discussion that the one cited is not altogether decisive of this one, yet it is certainly true that it is not any more an inherent power of a court to collect taxes than it is to levy them.

It has been held by this court that a tax is not a debt within the legal meaning of the term, and therefore assumpsit cannot be maintained upon it, as is done in some States where it is regarded as an indebtedness. It comes upon the citizen in incitum, and its payment rests upon the duty he owes to the State in return for the protection extended by it to him. The exercise of the power of taxation is legislative in character, while the collection of taxes, when once authorized by the law-making power, is ministerial. The one is legislative and the other executive. Neither is a judicial act, and one department of the government should be careful not to encroach upon the domain of another. It is true, the judiciary may be called upon by the Legislature to enforce the collection of taxes in a judicial way, but it has not done so in this State, save as to railroads, where suit has been authorized to recover them; and this exceptional case inferentially says that this remedy cannot be resorted to in other cases. The collection of taxes depends, and properly so, upon the remedies afforded by statute. Their speedy and prompt

collection is necessary to the life of the State. The interest of the citizen demands that it should be done with as little expense as possible. If resort can be had to the courts, in the absence of statutory provision, then delay, expense and abuse will certainly follow. But it may be said it is only in cases where there is no remedy, or it is ineffectual, that the right to sue for taxes should be implied. We are aware that it has been held by some courts, and said by some text-writers, that if no specific remedy be given by statute, or only an imperfect or inadequate one, then it is but reasonable to infer that a remedy by suit was intended by the Legislature. This court has, however, never assented to such a rule. Public policy, in our opinion, forbids it. Its adoption would burden the courts with litigation, and be likely to lead to abuse of such a character as not only to unjustly harass the citizen, but injure the State greatly more than it would suffer by the loss of taxes from its non-adoption. It would tend to confuse the powers of the different departments of the government, and there would be no limit to its exercise. If one delinquent could be sued because he had made a fraudulent transfer of his property, or another for some other reason, upon the ground that there is no remedy or adequate one, the State, in the end, would be the sufferer. Besides, it would violate a policy which has prevailed in this State from its earliest history. It is true, it has been said by this court, in some cases, that wherever a legal liability exists the law raises a promise, and assumpsit lies; that, if a right be created, and no remedy appointed, the usual remedy for that class of cases will be appropriate; that, when the statute creates a liability, and provides no specific remedy, the common law must afford it; and that when the chancellor finds a party with a legal right, but no remedy, he should furnish it. This is all true, generally speaking, and a review of the cases shows that they were general expressions, used in the argument contained in the opinions, and where questions unlike this one were presented.

In the case of Portland Dry Dock & Ins. Co. v. Portland, 12 B. Mon. 77, the company was required by its charter to pay annually to the City of Louisville 50 cents on each $100 of its capital stock. Subsequently the trustees of the Town of Portland were authorized by the Legislature to collect annually $200 of the assessment. It was urged that they could not sue for it, but must collect it, as they did their ordinary taxes. The difference between that case and this one is manifest. There a certain sum was fixed by statute, and the fact that it was called a tax by the statute creating the lia

bility did not preclude an action of debt to recover it.

The cases of Johnston v. Louisville, 11 Bush, 527; Elizabethtown & P. R. Co. v. Elizabethtown, 12 Bush, 233 and Louisville Water Co. v. Hamilton, 81 Ky. 517,-are not in conflict with the views above expressed. Expressions of a general character may be found in the argument in the opinions in those cases which seem to support a different view; but the question as now presented was not then before the court, nor was it decided. In the last-named case the water company sued out an injunction to prevent the sale of some property for its taxes. It was not sued for them. It voluntarily came into a court of equity asking relief, and, under such circumstances, the court said: "The chancellor, having been appealed to by the appellant [the water company] for some sort of relief, should have taken cognizance of the case, and required the appellant by rule to pay the money into court, and, if not, to place the management of the corporation in the hands of a receiver, in order that the burthen might be discharged.'

It is apparent that case is not this one. If, where a tax has been imposed, and no remedy or any adequate one furnished for its collection by the statute, it were in our opinion a correct rule to imply the right to sue for it on account of the silence of the Legislature, yet we would not apply it in view of the fact that our Legislature has expressly provided that a railroad corporation may be sued for its taxes. Gen. Stat. App. chap. 92, p. 1021, § 5.

We

This was equivalent to a declaration by it that, in the absence of such a statute, no such suit could be maintained. The judiciary should not, in our opinion, merely because of legislative silence as to the collection of a tax, imply to itself a power not inherent in itself, and the exercise of which will not only be confusing as to the powers of the different branches of the government, but likely to lead to great abuse. Indeed, in view of the legislation as to taxes owing by railroads, it cannot do so. do not intimate whether, in this instance, the taxes are or are not owing, but merely decide that for the lack of legislation no action can be maintained looking to their collection. If, in such a case, the State is likely to lose any of its revenue, the Legislature can, by additional legislation in the form of penalties for nonpayment, or by authorizing suits for its recovery, provide against it, and will, no doubt, do so where in its wisdom it may be proper and necessary.

Judgment reversed, with directions to dismiss the petition.

MASSACHUSETTS Matilda B. MILLER, Piff.,

v.

John ROACH. (......Mass.......)

A promissory note having for signature the written words "John Roach, Treas

urer," over which is stamped into the paper a large round seal bearing the name of a corporation declaring "We promise to pay," but naming no maker in the body of it, is the note of the corporation, and not the individual obligation of the treasurer.

(November 27, 1889.)

plaintiff's exceptions. Overruled.

Co. (Iowa) 4 L. R. A. 396.