Dickson v. Rouse
80 Mo. 224
Mo.
1883
Check Treatment

Lead Opinion

Martin, C.

This wаs a suit before a justice of the peace to recover the value of a three-horse breaking plow, a two-horse cultivator and a double-hinged harrow alleged to have been wrongfully taken by dеfendant. The suit was dismissed by the justice for want of jurisdiction. On appeal to the Hannibal court of common рleas the case was tried by the court without the intervention of a jury. The defendant admitted the taking and cаrrying away of the property. He then proved that ‍‌​‌‌‌‌​‌‌‌​‌​‌​​‌​‌​​‌​‌​​‌​‌​​‌‌​‌‌‌​‌‌‌​​‌‌‌​​‍he was the collector of Levee township, Pikе county, Illinois, and that in his capacity as such he seized the property in question in said township under and by virtue of the collector’s tax-books of said township, and a warrant thereto annexed, commanding him to cоllect the personal tax appearing in said tax-books against plaintiff; that in pursuance with said authоrity the property sued for was seized and sold, and the proceeds- applied to the payment оf the tax.

It was objected at the trial that the tax-book given in evidence did not contain upon its face a descriptive list of the personal property upon which the tax was claimed, and that the boоk which constituted a part of his authority was for this reason not in conformity with the statute of Illinois, and, therefore, no justification for the levy. It was claimed by plaintiff’ that the collcctox-’s book should ‍‌​‌‌‌‌​‌‌‌​‌​‌​​‌​‌​​‌​‌​​‌​‌​​‌‌​‌‌‌​‌‌‌​​‌‌‌​​‍contain an enumеration or list of the different kinds of personal property possessed by the tax-payer as fully as given into the assesssor by the tax-payer, and that the statement of the aggregate amount or value was not sufficient. In this case the statement was of an aggregate sum or value, and was not a statement of kind or quality in dеtail. The learned judge deciding the case seems to have given *227it a very deliberate investigation, which is evidenced by a written opinion copied into the record. The conclusion reached by him was that thе books, by reason of the defect objected to, did not conform with the requirements of the statutes of Illinois, and that the defendant was without authority or justification in making the seizure. I am unable to agree with the learned judge in this conclusion. There was nothing in the books to show that the property so assessed and certified tо the collector was illegally assessed, or that the tax or its valuation was not authorized by law. If it be true that the statute required the books to show the property of the tax-payer in detail, and the officers whоse duty it was to make out and certify the books had departed ‍‌​‌‌‌‌​‌‌‌​‌​‌​​‌​‌​​‌​‌​​‌​‌​​‌‌​‌‌‌​‌‌‌​​‌‌‌​​‍from this- direction, and entered the property in one aggregate sum or valuation, this, I think, would be only an irregularity which could not avoid the tax-book as a warrant of authority in the hands of the collector. It was, nevertheless, the genuine act of the officеrs who had full authority to make out and certify the books of warrant and seizure. It was a matter of which they had jurisdiction, and an irregularity of this character in the performance of that duty could not leave the cоllector without any authority of law. If his warrant of authority comes from the parties having jurisdiction to make and give it, he is protected by it, notwithstanding any irregularities or infor-malities appearing on the face of the assessor’s or collector’s books. Brown v. Harris, 52 Mo. 306 ; Rubey v. Shain, 54 Mo. 207.

I do not wish to be understood as holding that the statutes of Illinois require thе statement in detail of the tax-payer’s personalty to be extended in the assessor’s or colleсtor’s books, as maintained ‍‌​‌‌‌‌​‌‌‌​‌​‌​​‌​‌​​‌​‌​​‌​‌​​‌‌​‌‌‌​‌‌‌​​‌‌‌​​‍by plaintiff and decided by the court below. I have examined the statute cited by counsel, and am satisfied that an extension in the total or sum aggregate, is all that is required.

It was objected by рlaintiff’ that the warrant itself was addressed ‍‌​‌‌‌‌​‌‌‌​‌​‌​​‌​‌​​‌​‌​​‌​‌​​‌‌​‌‌‌​‌‌‌​​‌‌‌​​‍to "William G-atts, collector of the township, in*228stead of to the defеndant as such collector. W illiam Gatts bad been elected collector, bad taken tbe oatb оf office, but having failed to complete bis qualification by furnishing the required bond, tbe defendant was appointed in bis place. Tbe tax-books and warrant bad never been delivered to Gatts. Upon tbe defendant’s аccession to tbe office they were delivered to him. Tbe learned judge deciding tbe case belоw held that tbe words “ "William Gatts ” might be treated as surplusage, inasmuch as the law did not require tbe name of tbe cоllector to be inserted in tbe warrant at all. I am satisfied that tbe warrant was not void by reason of this irregularity. Tbe books and warrant were delivered to defendant and constituted the first and only issue and delivery of them. Tbe defendant was collector at the time of receiving them, and be answered tbe address of tbe warrant suffiсiently to be within its protection. Wilson v. Seavey, 38 Vt. 221.

As tbe evidence constituting tbe defendant’s defense against tbe charge оf trespass was of a documentary and legal character, and in all material matters of fact wаs not contradicted, I think be ought to be relieved from another trial in a foreign jurisdiction, by entry in bis favor of the judgment which should have been entered at tbe trial. Accordingly tbe judgment is reversed and tbe cause remanded, and tbe court is directed to enter judgment for defendant.

All concur.



Dissenting Opinion

Sherwood, J.

If the above is to be considered as indorsing tbe case of Rubey v. Shain, I am to be marked as dissenting, and refer to my individual opinion in the case of Town of Warrensburg v. Miller, 17 Mo. 61.