79 Ga. 550 | Ga. | 1887
George Short was indicted for a misdemeanor, in Wilkes superior court, in that he “ knowingly, wilfully and wrongfully did obstruct, resist and oppose one Pope, a lawful constable of said county, said Pope then and there attempt
The fi. fa. was in the usual form and was signed by Win. R. Smith. On the trial of the case the defendant was convicted, and moved for a new trial; which motion was overruled, and he excepted and brings the case here for review.
Among the grounds insisted on here were the following, in substance: That the fi. fa. set out in the indictment was not a legal process, it being signed by one W. R. Smith individually, and not as tax-collector; and that the court charged that tliefi.fa. set out in the indictment, although not signed by W. R. Smith as tax-collector, was a sufficient fi.fa. in law; and that if the defendant obstructed or resisted the constable in levying said fi. fa., the jury would be authorized in finding him guilty.
We think the court erred in holding this to be a legal process or a good execution, under the law. “ The rule is well-settled, that every public document which is required by law to be executed by a public officer, must be verified by the official signature of the person who made it. The object of the rule is the identification of the document as an official act, executed by authority of law; and its spirit is answered only when the official character of the person making it is established, and the document appears upon its face to be an official act, attested by the signature of the officer.” “ Every act of an officer should bear upon its face evidence of its official character, because every officer is responsible to the government and parties interested in his acts, for all inj uries occasioned by his acts or omissions under color of his office. The authority of an officer to do a specific thing is delegated to him by law, and is reposed in the officer, not the man. He acts in an official capacity.” “ But for the protection of the law he would be a trespasser in exercising the power, and responsible to the citizen for
In Spear vs. Ditty, 9 Vermont, 282, it was held that, where an advertisement of the delinquent tax list was signed “ E. Spaulding,” without the addition of the word “ collector,” the sale under it was void. The court remarked : It is not true that every man is presumed to be clothed with and to be exercising an official .capacity because it seems to be needed for what he is attempting. Such a principle would sweep away all official signatures and designations. The statute form must be strictly followed. Even a known public officer must so sign every official document. It is difficult to see how any one can act officially on paper, and not so state on the paper. It must appear on the publication by what power and in what capacity the person acts.” See also, Isaacs vs. Shattuck, 12 Vermont, 668; and Taylor vs. French, 19 Vermont, 49.
It appears from the record in this case, that the taxfi. fa. placed in the constable’s hands was signed by Wm. R. Smith as an individual, and that the words “tax-collector” were not added to his signature, nor did it appear otherwise on the face of the paper that he was tax-collector. This being so, we hold that it was not a legal process which the constable had in his hands; and it not being legal, Short had the right to resist the levy of an illegal paper or fi.fa. upon his property. The court erred in charging
Judgment reversed.
