84 Ala. 243 | Ala. | 1887
The decrees of February, 1885, and October, 1885, are not such final decrees as will support an appeal. They are directions to the rogistej:, as to the manner in which he will take and state the account, which it was his duty to obey. If the directions were regarded as erroneous, and it was desired that the chancellor should review them, the complainant properly effected this by excepting to the report of the register and thus bringing the direction again to the attention of the chancellor; which it was in his power to modify or alter, if he deemed them unjust or incorrect. — Lang v. Brown, 21 Ala. 179. The motion to strike out the assignments of error relating to these decrees must be overruled. — Walker v. Crawford, 70 Ala. 507; Stringfellow v. Ivie, 73 Ala. 209.
There can be no question that a warrant of authority of some kind is necessary to enable the tax-collector to collect taxes by compulsory proceedings. In some States, a special or formal warrant is provided for. When the statute thus provides, the warrant must conform substantially to its provisions, and the statutory requirements as to its frame and issue should be carefully observed; as the collector is- a trespasser, if he proceeds to compulsory action without the authority which the statute provides. Says Mr. Cooley: “This, in different States, may be the assessment roll or list, with the tax extended upon it; or it may be a duplicate of the list, with a like extension; or it may be either of them, with a formal warrant attached, particularly indicating what are his particular duties under it, and commanding their performance.” — Cooley on Tax. 424. Where the statute makes provision for the attachment of a formal warrant to either, whether the assessment roll or the duplicate constitutes the warrant of authority, depends on the requirements, as to which the formal warrant shall be attached. The principles which govern in such cases, are scarcely applicable where the statutes, as in this State, make no provision whatever for a formal warrant. But, nevertheless, the collector must have a warrant of authority, to justify the compulsory collection of taxes.
By the revenue laws, in force during the time of the transactions in controversy, it was made the duty of the tax-assessor, to enter in a book, suitably ruled and substantially
Tbe question as to what constitutes tbe collector’s warrant of authority under our statutes has never been directly presented or decided, though it has incidentally arisen in some cases. An examination of these cases will manifest, that tbe assessment book prepared by the assessor and certified by tbe judge of probate, and tbe book provided for by section 435, have been indescriminately regarded and styled tbe collector’s warrant of authority. In Timberlake v. Brewer, 59 Ala. 108, tbe question for decision was, whether tbe collector was chargeable for tbe total amount of tbe
We have said, that our statutes do not provide for a formal warrant, indicating the particular duties of the collector, and commanding their performance, nor authorizing him to resort to compulsory action for the collection of the taxes. He is authorized by the statute, without any special warrant, to levy on and sell the personal-property of delinquent taxpayers after the first day of January; and special provisions are made for the sale of real property for taxes by a decree of the probate judge. His authority to levy and sell personal property is based on the assessment as corrected by the court of county commissioners, and certified by the judge of probate. The book required by section 435 confers no authority to collect taxes by any compulsory process, though it may be regarded in the nature of a secondary warrant of authority to receive taxes voluntarily paid. It possesses none of -che features or requirements of a warrant, and the statute does not, expressly or by implication, declare that such shall be its effect. It is a mere statement in concise form of the amount of taxes due by each tax-payer, and the amount of taxes on real and personal property separately, together with the fees of the assessor and collector — a memorandum made from the assessor’s books. It is addressed to no officer, certified by none, aud indicates no particular duties to be performed other than to receive the taxes, and is mainly intended for the information, guidance and convenience of the collector. Its office is, a constructive delivery of the assessment book, of which it is an unauthenticated abstract.
If there should be discrepancies between entries therein and the assessor’s book, the latter controls; and should the probate judge, by inadvertance or design, enter therein taxes as due by a person and assessed on his property, when no such assessment had been made by the assessor, and entered in the assessment book, it would afford the collector no protection, if he knowingly attempted to force the payment of such taxes by levy and sale of property. The duty of the probate judge to make such book is clerical and ministerial,
A valid assessment is essential to the collection of taxes; but when such assessment has been made, the assessment book examined, corrected and properly certified, and the taxes become payable, the statute makes it the duty of the collector to proceed to receive the taxes, by making appointments in each precinct, which appointments must be completed by the thirty-first day of December; and after the first day of January he is authorized to compel the payment of taxes by. a sale- of personal property. This he can lawfully do, though the judge of probate may have failed to prepare and deliver to him thé book as required by section 435. For this purpose no execution or special warrant of any character is requisite. His protection for such compulsory proceeding rests on a valid assessment, and the statutory duty and authority. In this State, where no special warrant is provided, and there is no statutory declaration as to what shall be the warrant of authority, the statutes which impose the duty to collect, and prescribe the modes of compulsory collection, when founded on a valid assessment, constitute, in its primary sense, the collector’s warrant of authority, and no preliminary process or warrant is necessary. As the tax collector was authorized directly by the statute to proceed by compulsory action to collect the taxes, and as the book provided by section 435 is not essential to his protection, and having undertaken their collection by virtue of his office, he is chargeable with the taxes, which he could have collected, and failed to do.
Reversed and Remanded.