Alexander v. Helber

• Decision Date: 31 October 1864
• Citation: 35 Mo. 334
• Parties: CORBIN ALEXANDER, Respondent, v. JOHN J. HELBER, Appellant.
• Court: Missouri Supreme Court

35 Mo. 334

CORBIN ALEXANDER, Respondent,

v.JOHN J. HELBER, Appellant.

Supreme Court of Missouri.

October Term, 1864.

Appeal from St. François Circuit Court.

On the 28th October, 1859, the plaintiff commenced suit against the defendant in the Circuit Court of St. François county. In his petition, he alleges that the defendant on or about the 15th day of May, 1859, assuming to have and exercise a certain office under the name and style of marshal of the town of Farmington, in said county, State of Missouri, and ex-officio collector of taxes in said town, did unlawfully seize, take and detain a negro boy by the name of Nelson, belonging to the plaintiff; and afterwards, on the 22d day of June, A. D. 1859, unlawfully proceeded to sell, and did sell said boy, with all plaintiff's right, title and interest; that such sale was against his express prohibition, and that by such unlawful seizure and selling of said slave, plaintiff suffered damage in the sum of twelve hundred dollars, for which he asks judgment.

The defendant answered, setting up as his defence to plaintiff's cause of action, that, at the times of levy and sale of said slave, he was in fact marshal and ex-officio collector of the taxes due the corporation of the town of Farmington, duly commissioned and qualified as such; that said town of Farmington was duly incorporated under the laws of the State, under the name and style of the inhabitants of the town of Farmington. That there was on the tax list for the years 1858 and 1859, the sum of $16.68 due and owing by the said plaintiff to said corporation; that said lists were placed in his hands for collection; that he demanded of plaintiff payment of said taxes on the 14th April, 1859; that plaintiff refused to pay the same, and that he afterwards on the 15th day of May, A. D. 1859, by authority of and in pursuance of the ordinances of said corporation, did levy on and seize the boy mentioned, for the purpose of coercing the payment of said taxes; that the sale was made by authority of and in pursuance to said ordinances; that the slave sold for his value, and out of the proceeds of sale defendant deducted the taxes aforesaid, to wit, $16.68, and applied the same to the payment of the taxes due and owing by plaintiff to said corporation, and returned the remainder to the plaintiff. Defendant denies that the plaintiff was or is injured by any unlawful act of the defendant, but that if any damage was in fact done to the plaintiff, it was the result of his own improper conduct in and about the matter. Defendant avers that plaintiff had the slave bid in with his own money, and had him then in his own possession as his own property.

The plaintiff filed a motion to strike out the defendant's answer for the following reasons: 1. It presents no facts which make a legal defence. 2. The answer claims that the defendant was marshal and ex-officio collector of the town of Farmington, but that the statute in relation to towns does not make a marshal, collector; nor authorize the same person to exercise the same offices. 3. The answer shows a selling of the slave as directed by the ordinances of the corporation, but fails to show a compliance with the provisions of the statutes in such cases. 4. The answer shows no judgment in favor of the corporation against the plaintiff as required by statute. 5. The answer is argumentative.

The motion of the plaintiff was sustained, the answer stricken out, and the defendant excepted.

The defendant on leave of the court filed an amended answer, denying that he unlawfully seized and sold the slave mentioned; denying that the plaintiff was damaged by the seizure and sale of the slave; averring that he was marshal and ex-officio collector of said corporation, and denying that the plaintiff ought to recover any sum whatever as damages for the alleged seizure and sale of said slave.

At the May term of said court, 1864, the cause came on to be tried, a jury selected, and the plaintiff in order to sustain his cause gave in substance the following evidence That the defendant sold the boy in question at public sale, at the courthouse door in St. François county, State of Missouri, four or five years ago; that plaintiff was present at the sale and forbade the sale; he told the by-standers to beware, they would get no title; that the whole thing was illegal; that at the time of the sale the boy was worth from $800 to $1,000. That about 15th June, A. D. 1859, Wm. Hunt in company with Achilles Smith came to the treasurer's office at St. François county, presented some county warrants drawn in favor of Achilles Smith, and drew $585 and left it with the treasurer till called for, and on the day of the sale of the slave, and immediately after the sale, he came and drew the money. Defendant on the cross-examination of plaintiff's witnesses, proved that the effect of forbidding the sale of property at a public sale, was to cause it to sell for less than its actual value, and that after the sale the slave returned to the possession of the plaintiff, and remained with him till the bringing of this suit, and until he ran off in 1862; that he never was in possession of William Hunt, or any other person than the plaintiff.

The defendant then proved that the slave sold for $600; that after deducting the taxes due from plaintiff to the corporation, and some small amount for costs, the remainder was returned to the plaintiff, which he accepted and receipted for; that at the sale the bidders were deterred from bidding by the threats of the plaintiff, that the purchaser would get no title, and that he would sue the purchaser, &c. The defendant then proved that the town of Farmington was duly incorporated under the statutes by the county court of St. François county; that he was on the 15th day of May, 1859, and on the 22d day of June, A. D. 1859, duly qualified and commissioned as marshal of the town of Farmington; that by the ordinances he, as marshal and ex-officio collector, was authorized to levy upon and sell personal property of any one residing in the corporation who might refuse to pay the corporation taxes; that the tax list was duly made out and placed in his hands previous to his making demand of the plaintiff for the taxes, and previous to the seizure of plaintiff's property as above stated. That the taxes due by the plaintiff to the corporation for the years 1858 and 1859, amounted to $16.68; that the property levied upon was surrendered by plaintiff of his own choice when called on by the collector for property; that a delivery bond was taken after the levy, and plaintiff retained possession of the slave; that the sale took place in all respects as provided for and required by the ordinances of the corporation; that the ordinances were duly adopted by the board of trustees of the corporation.

J. G. Beal, for appellant.

The court below committed error in striking out the answer of the defendant, and herein the appellant maintains the following propositions:

I. The corporation of the town of Farmington had power to “pass by-laws and ordinances, to levy and collect taxes.” (2 R. C. 1525, § 7.) The power to “levy and collect, necessarily implies the power to provide the mode and manner of collecting.” Whenever a power is granted, all necessary means to carry the power into force are implied. (1 Kent's Comm. 464; 2 Hilton's N. S., C. P., 203.)

II. The provision in Sec. 14, act entitled Towns, that the town collector may bring suit for the taxes due from any one refusing to pay, is suggestive of a remedy and cumulative, and not imperative. By the same section, power is given to sell the real estate of non-residents, whose taxes are not paid, by the ordinances of the corporation, without suit and judgment first obtained. It would, then, be inconsistent to hold that the corporation could not exercise the less important power of selling personal property by provisions of ordinance. The construction of this section by the respondent is not only inconsistent but exceedingly inconvenient. (Sedg. Constr. of Stat., 238.)

III. The words “may” or “shall” are only imperative when the public or individuals are interested in the act being done, and have a claim de jure that the power be exercised. (5 Johns. Ch. 101; 5 How. 188; 6 Id. 223; 10 Id. 238.)...