44 Minn. 383 | Minn. | 1890
This action is prosecuted to recover for official services rendered for the county of Todd-by the sheriff of that county, he having assigned his right of action therefor to the plaintiff. This appeal is from an order sustaining a demurrer to the complaint. It 'appears that the services were rendered, and that the account
The complaint shows that the sheriff did not file the delinquent list with the clerk of the court until the 81st day of July, on which day the clerk delivered the list to the board of county commissioners then convened for the first time subsequent to the 1st day of April, and the board took action upon the same as though it had been filed within the time prescribed by law. It is alleged that the county auditor was not hindered by the delay in filing such list from performing his prescribed duties; that he filed a copy of the list with the clerk of the court within 10 days after the adjournment of the board, in compliance with the statute; that the clerk issued citations to the delinquents, which were served; that neither the county nor the public were injured or deprived of any rights by reason of the sheriff’s neglect; and that the purposes of the statute were accomplished. The court sustained the demurrer, for the reason that the statutory requirement to file the delinquent list on the 1st day of J une was regarded as mandatory.
It will be observed from the above recital from section 60 that the mere omission of the sheriff to file the delinquent list on the 1st day of June was not intended to, and would not, invalidate subsequent tax proceedings, or render the taxes uncollectible. And so the statute would be construed, even in the absence of an express declaration to that effect, like that embodied in section 60, unless the provision in section 62 above recited should lead to a different construction. Kipp v. Dawson, 31 Minn. 373, 381, (17 N. W. Rep. 961, and 18 N. W. Rep. 96;) Faribault Water-Works Co. v. County of Rice, supra, p. 12; End. Interp. St. §§ 435, 436. Therefore, while it was the duty of the sheriff to file the list on the 1st day of June, the duty to file
Of course a penalty may be imposed for a neglect to perform a duty according to t,he requirements of the law, even though the prescribed act be performed in a manner or at a time other than that directed, and so that the ultimate purposes of the law may have been really accomplished. But we do not regard section 62 as intended to impose absolutely upon the sheriff the penalty of requiring him to pay the delinquent taxes in case of any neglect or default in the discharge of his duty, and without regard to the nature or consequences of such neglect. It is for the taxes “uncollected” that he becomes responsible; and the amount of the same recovered from him, or deducted from what may be due to him on other accounts, is to be “applied to the several funds for which they were levied.” It is apparent that it was-the intention of the ' legislature that the sheriff should himself be chargeable with the amount of such taxes when he should refuse or neglect to collect them, or when, by reason of any default or neglect on his part, the prescribed tax proceedings should become ineffectual, or could not be pursued to their proper conclusion as prescribed by the law. As every neglect of duty would not result in any such consequences, or in any manner affect the results sought to be accomplished, and as the law seems to contemplate that the tax proceedings shall go on as prescribed, even though some provisions of the law may not have been exactly complied with, the construction above suggested is to be preferred to one which absolutely requires the sheriff to personally pay the tax if in any particular he shall have been negligent in the discharge of his duty, as in returning the list of taxes uncollected. It would seem to be an unreasonable construction of this section to hold that if the sheriff should file the list on the 2d day of June, instead of on the 1st, and even though the orderly conduct of further proceedings were in no manner affected by.the-delay, he- should be at once and absolutely
The plaintiff’s assignor was not restricted to the remedy by appeal from the action of the board of county commissioners. This was decided in Murphy v. County of Steele, 14 Minn. 51, (67.)
Order reversed.