| Mich. | Jan 11, 1876
Ferton was supervisor and Beaufait treasurer of Harrison township in Macomb county in 1871, and Feller was a resident tax-payer there on lands and personalty. Ferton made out the tax list in the spring under sections 987 to 992, Comp. L., and in the fall it was passed .upon and certified by the board of supervisors (§§ 992, 993, 994, 995, Comp. L.), and became a record in his office. The board also ascertained and certified to Ferton the various sums to be spread upon the roll and collected in his township. — §§ 997, 998, Comp. L.
He then proceeded to extend these sums against the taxpayers according to the valuation on the completed and authenticated original roll in his office. — § 999 Comp. L. And after the county treasurer had receipted Beaufait’s bond as township treasurer (§§ 1000, 1001, 1002), and on or before the first Monday of December, he delivered to Beaufait a -copy of the roll for collection. In this collection copy taxes were set down against Feller as follows:
Beaufait proceeded to collect and did collect a considerable portion of the taxes, but Feller and some other taxpayers objecting that this collection roll was unlawful on account of defects and errors made by Ferton in extending taxes and in framing the warrant annexed, the board of supervisors, at a session in January, 1875, passed resolutions purporting to authorize Ferton to make a new roll in pursuance of § 1004, Comp: L., and also ordering an extension of time for collecting until March 1st, 1875.
Shortly after this action of the board Ferton went to Beaufait, who was lawful custodian of the roll, and appended a copy of the resolutions to it and drew his pen across the figures denoting the amounts of Feller’s taxes and set down in lieu of them other figures varying the amount of each item except that under the head of school taxes and reducing the gross amount a little less than a dollar. He made a similar alteration in the cases of three other tax-payors. The existing collection roll was no otherwise changed, and no other roll was made.
Under this roll so altered Beaufait demanded payment of Feller of these items so inserted, as taxes he was bound to pay. Payment was refused, and Beaufait seized and sold Feller’s wagon. Feller then sued in trespass before a justice, and recovered. The case was appealed, and on trial without a jury Ferton and Beaufait sought to justify under the collection roll and the proceedings had upon it, but the court, on a special finding, gave Feller judgment for forty-two dollars and forty-two cents and costs.
The case raises the general question whether the findings established a justification. Because if they did not, a recovery was warranted, and we are of opinion they did not.
First. Without attempting to, specify the conditions which
In the nature of things there must be a radical distinction between the construction of a new roll and an act which contemplates the continuance of an old one with unchanged identity, and merely alters it in some specific particular. And it would seem like confounding perfectly separate and distinct matters to say that a roll already lawfully in use by the treasurer for collection is made a new one in the sense of the statute by a change of some of the items in it as to three or four tax-payers. Here there was no physical change of one document for another, and no such alteration in the reading as to destroy identity and give to the roll the character of a new one.
Second. The seizure here was not made on the strength of the roll as it stood when drawn up under the statute and delivered to the treasurer, and not for the same gross sum, and not for the same items of amount for state, county and township taxes respectively; and not under a warrant made, attached and directed for the collection of the same items or the same gross amount. The amounts to be collected of Feller when the roll was completed by Ferton, and when the latter attached his warrant and passed the finished document from his statutory power into that of Beaufait for the purpose of collection, were stricken out by Ferton, and the seizure of Feller’s property was for items Ferton inserted when he thus struck out the original ones. Had it been made on account of the original items, in disregard of Fer-ton’s alteration, the case would have been open to very different considerations. That Ferton had no power, as'a consequence of the bare fact that he was supervisor, thus to strike out and insert, and change the gross sum and the
It terminated when, in regular course, the collection roll went finally and fully, and in proper time, into thfe power of the treasurer for collection. His act in altering the roll was not an official one. It was private and personal. It is true the gross amount of the items after the alteration, and for which the seizure' was made, was less than the sum officially written down, and to which the warrant applied.
But this cannot aid. What was thus inserted and sought to be collected by the levy was not a tax. It was an unauthorized entry to which the warrant in legal contemplation could not apply. Public policy is opposed to all unwarranted tampering with such matters, however well intended in the particular instance, and the courts ought not to strive for reasons to screen or excuse it. Doubtless cases may occur where corrections of plain clerical inaccuracies may be considered as. not objectionable, or seriously so. But the present is not of that kind, and I do not see how we can yield sanction to what was done here without making a precedent of most dangerous tendency. There is no reason to suppose that any thing improper was designed. On the contrary, the facts indicate that the difficulties about the roll were caused by want of knowledge for the proper performance of duties.
Third. The roll first made by the supervisor is carried before the board, and after final correction there, and after its authentication, by the chairman, it is delivered to the supervisor, who is required to file it and heap it in his office. —§ 995, C. L. No other roll is brought to the attention of the board, and this alone receives the sanction of the board. With this before him, and the requisite certificates and statements in regard to the taxes to be levied and their
Now there is no finding whatever to show that the two rolls agreed after the alterations in the collection roll, nor any finding in regard to the shape of the first roll at any time, or in regard to any amendment of it.
It is claimed that whatever errors -were committed were cured by § 1129, C. L. I cannot think so. Feller’s property was not seized for a tax, but upon items inserted in the collection roll unofficially and without authority of law. If some private person, supposing himself authorized, and acting in good faith, had stricken out the tax and
It is said in the brief for plaintiffs in error that the judgment is void, it not being one hi trespass. It is "true, the judgment is one appropriate to assumpsit, and not trespass. But it is equally true that no error is assigned upon it, and if there had been, it would have been of no importance, because, first, the imperfection would be cured by the provisions of Ch. 190, C. L., and if otherwise, then, second, a proper judgment could be entered here on the findings. Several questions not noticed, and of more or less importance, were mooted on the hearing, but the objections to the justification which have been considered, are, as it seems to me, fatal, and hence I perceive no necessity for extending the discussion.
I think the judgment should be affirmed, with costs.