29 Mo. 285 | Mo. | 1860
delivered the opinion of the court.
The fourth section of the fifth article of the act regulating common schools, among other duties and powers entrusted to the trustees of a school district, requires them “ to make out a rate-bill, containing the name of each person patronizing such school, and not exempted [from rate-bill,] and the amount for which such person is liable, adding thereto five cents on each dollar for collector’s fees, and to annex thereto a warrant .for the collection thereof, directed to the constable of the township, whose duty it shall be to receive and collect the same.” The eighth section of the seventh article makes it the duty of the constable “ to collect the amount, due on these rate-bills or warrants, from the persons against whom such warrants or rate-bills have been issued; and upon failure on the part of such persons to pay the amount so due, to levy upon the personal property of the person so failing or refusing to pay the amount so due, and the said constable shall proceed to sell the same,” &c. (R. C. 1855, p. 1441.) The ninth section of the same article makes the constable and his securities liable, for any failure to execute or return these rate-bills, to the same extent and in the same manner “ as though such warrant were an execution issued by a justice of the peace.”
So far as the constables are concerned under this school law, them responsibility in reference to rate-bills or-warrants is declared by the act to be precisely the same as the law already had fixed it in reference to executions issuing from justices’ courts; and it would seem to be a natural consequence of this responsibility that the writ should protect them in their obedience to its mandates. There can be no question as to the executions, where they are valid on their
We do not perceive, then, any thing to distinguish this case from one where the officer is sued for acting under an ordinary execution. It is not pretended that the legislature lack the power to declare a. rate-bill or warrant to have the effect of an ordinary execution, and they have done so, except that the constable is not authorized to levy upon the property of the delinquent until a demand has been made of him for the amount and he has refused or failed to pay.
As to the demand and refusal in this case, there was ample evidence, and the question was left to the jury.
In relation to the testimony offered by the plaintiff which proposed to show that some of the preliminary steps required of the board of trastees had been neglected, we are unable to see its relevancy. If the suit was against the trustees, there might be some propriety in holding them responsible for any failure of theirs in complying with every material provision of the statute; but it would appear very unjust to visit their negligence upon the constable, whose business it is made to collect the warrant, and who has no means of ascertaining whether the trustees have, in. all respects, done their duty or not.
Judgment affirmed;
