2 Colo. 591 | Colo. | 1875
Plaintiff in error, as secretary of school district No. 3, in Arapahoe county, distrained the wagon in controversy to satisfy a tax levied against the defendant in error in that district, pursuant to the statute of 1870. 8 Sess. 131. To a plea setting up these facts defendant in error replied de injuria, and that the goods were not taken within the district. It appears that after the tax was levied and before the wagon was distrained the district was divided by the county superintendent of schools, and that part in which defendant in error resides was set off into a district by itself. By the 11th section of the act above mentioned, power is conferred upon the county superintendent to divide the
As to personal property, however, there can be no lien until seizure, unless it is given by statute. 2 Dill. Corp., § 659. The tax assessed generally against defendant in error did not become a lien upon his personal property, and no right was acquired by the assessment, merely, to seize the wagon wherever it should be found. We have no difficulty in saying that the seizure without the district was unauthorized, but it is not so clear that the question may be raised in this form of action. The statute relating to replevin (R. S. 533) plainly prohibits this remedy in every case where property has been seized for a tax, assessment or fine levied under a law of the Territory. Styles v. Griffith, 3 Yates, 82; People v. Albany, 7 Wend. 484; Mt. Carbon Co. v. Andrews, 53 Ill. 176. That the principle extends to the seizure as well as the assessment, and equally forbids all questions respecting the validity and regularity of the warrant and of the assessment, we freely concede, but obviously there must be some color of authority for making the seizure. For instance, it has been held that where the warrant was issued without jurisdiction, and where the statute under which the assessment was made, was unconstitutional, replevin would lie. Morford v. Unger, 8 Iowa, 82; Wright v. Briggs, 2 Hill, 77; Hudler v. Golden, 36 N. Y. 446. If this were not the rule, a defendant in replevin
The judgment is affirmed, with costs.
Affirmed.