Clark v. Axford

• Citation: 5 Mich. 182
• Court: Supreme Court of Michigan
• Decision Date: 05 June 1858
• Parties: Nelson W. Clark v. William Axford

5 Mich. 182

Nelson W. Clark v. William Axford

Supreme Court of Michigan

June 5, 1858

Heard May 19, 1858; May 20, 1858 [Syllabus Material]

Error to Oakland Circuit.

The cause was originally commenced in a justice's court, and taken to the Circuit Court, bye appeal.

The action was trespass for a span of horses. The defendant pleaded the general issue, and gave special notice that at the time of the trespass complained of, and for a long time previous, he was the supervisor of the township of Independence, in the county of Oakland, and, as such supervisor, made out a tax against the taxable property of said township, for the year 1851, including the property of said plaintiff, and issued a warrant thereon, and placed the same in the hands of Edwin G. Clark, the collector of said township for that year, and that the said horses were taken by said collector, under and by virtue of said warrant, and in pursuance of the command therein contained, for the purpose of being sold to satisfy the tax assessed against said plaintiff, he having refused to pay the same. On the trial of the cause in the Circuit Court, the plaintiff proved that the horses were taken from him, and sold at the time and place stated in the declaration, by said Edwin G. Clark, who claimed to be the collector of said township at the time, and claimed to have taken the horses by virtue of a tax roll and warrant, then in his possession, for said year 1851. The warrant and tax roll were produced, and were proved to be in the handwriting of said defendant, he having signed the same as supervisor of said township. The plaintiff then proved the value of the horses; and rested his case.

The defendant offered no testimony.

The court refused to allow the plaintiff to argue his case to the jury, but told the jury that there was no evidence in the case, and directed them to find a verdict for the defendant which they accordingly did; and judgment was rendered in the cause in favor of the defendant, and against the plaintiff for costs of suit.

The plaintiff having excepted to the charge to the jury, brought the case to this court by writ of error, for review on such exception.

Judgment of the Circuit Court for the county of Oakland reversed, and a new trial ordered.

M. Wisner, for plaintiff in error:

The plaintiff had made out a prima facie case when he had proved the taking of the property, and connected the defendant with it. And to constitute a justification, the facts necessary to give jurisdiction to the supervisors to levy the tax should have been proved: 1 Doug. Mich., 384, 390; 2 Cow. & Hill's Notes, 1013; 1 Ibid. 487.

[The counsel further contended that the tax roll was, as related to plaintiff, defective and void on its face, and that defendant, therefore, was liable in trespass for attaching his warrant thereto.]

In any view of the case, there was evidence to go to the jury, and plaintiff had a right to argue the case to the jury.

G. V. N. Lothrop, for defendant in error:

1. There were no disputed facts in the case in the court below. A mere question of law was presented; and the jury, not being judges of the law, it could not properly be argued to them.

2. The evidence showed defendant to be supervisor, and that, as such, he attached his warrant to the roll. As supervisor, he had jurisdiction of the assessment of taxes on all the property on the roll, and it was his duty to annex his warrant thereto. His acts are quasi judicial, and, however irregular or erroneous, he is not liable to an action of trespass: 5 Mass. 547; 5 Pick. 498; 7 Barb. 127; Ibid., 133; 1 Denio 214; 3 Denio 120; 11 Wend. 91; 19 Barb. 22; 21 Barb. 207; 2 Comst. 473.

3. Defendant was a public officer, acting in the due course of his duty; and the law will, in his favor and for his protection, presume that in assessing the taxes he acted legally in all respects. It will presume that all the taxes levied were duly authorized, and that the plaintiff and his property were within his jurisdiction. And any fact relied on to impeach this presumption must be proven: 2 Comst. 477; 2 Cow. & Hill's Notes, 296; 3 Ibid. 1092; 22 Vt. 838; 5 Barb. 609.

4. One of the errors assigned is, that the Circuit Judge told the jury that there was "no evidence in the case." By this was meant only that there was no evidence which showed any right of action. Evidence had been offered and received. It was undisputed. The question was not as to its admissibility or its weight, but, conceding as true what the evidence tended to prove, whether the plaintiff had any case. And the language of the judge must be construed by reference to the subject matter of which he was speaking.

But even supposing the literal construction of the language of the judge to prevail, what then? If the propositions advanced above are correct, it is clear that the plaintiff had no right to recover. The ruling of the judge did not, therefore, prejudice him. And it is settled that a judgment will not be reversed for a wrong ruling, when it could work no prejudice to the party: 9 Cow. 674; 3 Hill 389; Ibid., 194; 14 Ohio 502; 6 Blackf. 375.

Christiancy, J. Martin, Ch. J. and Campbell, J. concurred. Manning, J. did not sit.

OPINION

Christiancy J.:

The main question in this case is, Whether the court below erred in refusing to allow the plaintiff's counsel to argue the cause to the jury, and in charging the jury that there was no evidence in the cause, by which must be understood, no evidence upon which they could legally find a verdict for the plaintiff.

If the plaintiff had made a prima facie case when he rested, the defendant having offered no evidence, the court erred; but if he had not made such a case, or if he had, in fact, made a prima facie case for the defendant, then there was no error in the ruling of the court.

The action being trespass for taking the plaintiff's property through the agency of the collector (treasurer), under a warrant issued by the defendant, who was supervisor, the proof of the taking by the collector, and that such taking was in obedience to the warrant, would, it is conceded, make a prima facie case for the plaintiff, and throw upon the defendant the burden of proving by what authority he issued the warrant; unless, from the plaintiff's own proof, sufficient appeared to show, prima facie, the right of the defendant to issue the warrant. In the latter alternative, the plaintiff had failed in making out, or had rebutted, his own prima facie case, and made one for the defendant; and, in such case, the ruling of the court would be correct.

The first inquiry, then, is, Did the plaintiff, in the attempt to prove his own case, show the jurisdiction of the defendant, as supervisor, to issue the warrant in question? If so, the law itself raises the presumption that the supervisor had properly and and legally performed his official duty, and the onus was thrown upon the plaintiff to prove the contrary. But, until jurisdiction be shown, no such presumption will be made; the facts necessary to give him jurisdiction can not be presumed.

This involves the inquiry, What facts constitute jurisdiction for these purposes? or what state of facts was necessary to give the supervisor the right to impose the taxes, and to issue his warrant for their collection? The plaintiff had shown, first, that the defendant was supervisor; and, second, he had shown a tax roll, with the supervisor's warrant attached. But, did these facts, alone, show jurisdiction to impose taxes upon the property described in the roll, and to issue the warrant in question? The simple fact that defendant was supervisor, would not give him the right to impose taxes of any kind. To illustrate this, suppose no state tax were required to be raised in any particular year, or that the board of supervisors have not determined to raise any county tax, could the supervisor go on and impose any such tax, on his own authority, by virtue of his office? And a similar question may be asked as to any other species of tax. The answer is obvious. The law has not vested in the supervisor the right to impose any tax, except as previously required by some other competent authority. (The mill tax, for school purposes, provided by section 107, chapter 58, was the only tax fixed by the legislature.) And, even when the proper authorities have determined upon the raising of the several taxes, he can not take, as his basis for their apportionment, any list or roll which has not been submitted to and acted upon by the board of supervisors, and corrected, if necessary, and equalized by them; and the evidence of their action must be certified by their chairman.

The roll which goes into the hands of the collector or treasurer is but a copy of that which comes from the board, and is not required to contain the certificate of the chairman: R. S. of 1846, chap. 20, § 34. The production of the roll, therefore, as in this case, though in the handwriting of the supervisor, with a warrant thereto signed by him, can not, in an action against him, for the several reasons above stated, be treated as prima facie evidence of the existence of all the facts necessary to give him jurisdiction to impose the taxes mentioned in the roll. In an action against a justice of the peace for issuing an execution against a man's property, it is not enough for him to show that he was such justice,...