Bird v. Perkins

33 Mich. 28 | Mich. | 1875

Cooley, J:

1. Tie do not consider the objections which were made-to the evidence introduced for the purpose of showing a. regular incorporation of the village, because we do not regard •that question, as involved in this suit. Proceedings had been taken under which a village government had been brought into existence and was exercising its authority. If defects exist, they should be pointed out in a direct proceeding for the purpose, instituted on behalf of the state. .Even the state, it has been held, may be precluded from raising such objections after the corporate government has been fairly established with general acquiescence (People v. Maynard, 15 Mich., 463); but a private party cannot be ¿allowed in this collateral way to question an assumption of corporate powers which the state does not dispute. — See Fractional School District v. Joint Board of Inspectors, 27 Mich., 3.

2. Sufficient evidence was given of the official character of defendant as village marshal. True the resignation of the person chosen marshal is not shown, but the resolution appointing defendant to that office recites a resignation, and ¿a person of the same name, and presumptively the same person as the one who was elected, signs defendant’s official bond. These facts, we think, make out a prima facie right in defendant, especially as he proceeded to the discharge of .the duties without, so far as we are informed, his right being questioned.

3. The principal question in the case concerns the protection which the defendant claims under his warrant. Plaintiff insists that he is not protected, first, because, having been a member of the village board when the tax was levied, he is chargeable with notice of all illegalities. But on this point this court, in Wall v. Trumbull, 16 Mich., 228, held the contrary. Second, because the warrant was not fair on its face, but, on the contrary, that and the roll attached to it had several defects which rendered it invalid.

Of the defects which the plaintiff has pointed out we shall notice those which seem to us to require it. One of these is, that the figures indicating the valuation of property on the roll were preceded by no dollar mark, and therefore the .roll does not on its face show whether money or something else was intended. But an inspection of the roll shows clearly enough that dollars were meant, and no one could possibly have been in doubt on that subject. The. tax is properly carried out with the dollar mark preceding it; and this would perhaps be enough in any ease; but the decisions in Cahoon v. Coe, 52 N. H., 518, 524, and State v. Eureka etc. Co., 8 Nev., 15, which to us are satisfactory, would sustain the roll without it.

Another objection is, that the certificate attached by the assessor to the roll was insufficient. The original roll is not in evidence, and we do not know what certificate was to that. We do not understand that the copy of the roll upon which the tax is extended must have the assessor’s certificate copied upon it. The roll and the certificate are distinct things. — Tweed v. Metcalf, 4 Mich., 579. Defendant therefore had a right to assume that the original roll was properly authenticated.

It is also objected that one. description of land for which plaintiff was charged was so imperfectly described as to be void. The description was the east half of the southeast quarter of a section, but without giving the number of the section. But on examination of the petition upon which the village was organized we find the village contains but one east half of southeast quarter of a section, and consequently this description is sufficient.

A further objection is, that the board issued a now warrant to defendant after having extended the original warrant and while the period of the extension was still unexpired. But if the original warrant was still in force the new warrant was merely nugatory. Both the new and the old warrant were attached to the roll in defendant’s hands, and if either was valid it was sufficient for his protection.

These objections not being well taken, we think defendant had process which was fair on its face. We also think this was sufficient to protect him against any illegalities except his own. — Ford v. Clough, 8 Greenl., 334; Nowell v. Tripp, 61 Me., 426; Savacool v. Boughton, 5 Wend., 171; Chegaray v. Jenkins, 5 N. Y., 376 ; Turner v. Franklin, 29 Mo., 285; Walden v. Dudley, 49 Mo., 419; Holden v. Eaton, 8 Pick., 436 ; Underwood v. Robinson, 106 Mass., 296; Brainard v. Head, 15 La. An., 489; Blanchard v. Goss, 2 N. H., 491; Kelley v. Noyes, 43 N. H, 209; Moore v. Allegheny City, 18 Penn. St., 55; Billings v. Russell, 23 Penn. St., 189; Shaw v. Dennis, 5 Gilm., 405; Hill v. Figley, 25 Ill., 156; State v. Jervey, 4 Strob., 304; Loomis v. Spencer, 1 Ohio, N. S., 153; Watson v. Watson, 9 Conn., 140; Neth v. Crofut, 30 Conn., 580; McLean v. Cook, 23 Wis., 364; Noland v. Busby, 28 Ind., 154; LeRoy v. East Saginaw City Railway Company, 18 Mich., 233; Lott v. Hubbard, 44 Ala., 593; Stale v. Lutz, 65 N. C., 503; Gore v. Mastin, 66 N. C., 371; Erskine v. Hohnbach, 14 Wall., 613.

4. We do not think the defendant became a trespasser cib initio by keeping the horse levied upon a little longer than was absolutely necessary to giving notice and making-sale. There may have been good reasons for this, and something must be allowed to the officer’s discretion in such cases. And if the keeping was lawful, the expense was a lawful charge; but if not, the plaintiff in a proper action might recover the excess.

There is no error in the record, and the judgment must be affirmed, with costs.

The other Justices concurred.