Ferton v. Feller

• Decision Date: 11 January 1876
• Citation: 33 Mich. 199
• Court: Michigan Supreme Court
• Parties: Frederick C. Ferton and another v. John Feller

33 Mich. 199

Frederick C. Ferton and another v. John Feller

Supreme Court of Michigan

January 11, 1876

Heard October 27, 1875

Error to Macomb Circuit.

Judgment affirmed, with costs.

Hubbard & Crocker, for plaintiffs in error.

A. L Canfield, for defendant in error.

OPINION

Graves, J.

Ferton was supervisor and Beaufait treasurer of Harrison township in Macomb county in 1871, and Feller was a resident tax-payer there on lands and personalty. Ferton made out the tax list in the spring under sections 987 to 992, Comp. L., and in the fall it was passed upon and certified by the board of supervisors (§§ 992, 993, 994, 995, Comp. L.), and became a record in his office. The board also ascertained and certified to Ferton the various sums to be spread upon the roll and collected in his township.--§§ 997, 998, Comp. L.

He then proceeded to extend these sums against the tax-payers according to the valuation on the completed and authenticated original roll in his office.--§ 999 Comp. L. And after the county treasurer had receipted Beaufait's bond as township treasurer (§§ 1000, 1001, 1002), and on or before the first Monday of December, he delivered to Beaufait a copy of the roll for collection. In this collection copy taxes were set down against Feller as follows:

State Tax.

County Tax.

Town.

School.

Total.

Real estate

$ 10 08

$ 12 60

$ 10 08

$ 5 04

$ 37 80

Personal estate

68

85

68

34

2 55

Beaufait proceeded to collect and did collect a considerable portion of the taxes, but Feller and some other tax-payers objecting that this collection roll was unlawful on account of defects and errors made by Ferton in extending taxes and in framing the warrant annexed, the board of supervisors, at a session in January, 1875, passed resolutions purporting to authorize Ferton to make a new roll in pursuance of § 1004, Comp. L., and also ordering an extension of time for collecting until March 1st, 1875.

Shortly after this action of the board Ferton went to Beaufait, who was lawful custodian of the roll, and appended a copy of the resolutions to it, and drew his pen across the figures denoting the amounts of Feller's taxes and set down in lieu of them other figures varying the amount of each item except that under the head of school taxes and reducing the gross amount a little less than a dollar. He made a similar alteration in the cases of three other tax-payers. The existing collection roll was not otherwise changed, and no other roll was made.

Under this roll so altered Beaufait demanded payment of Feller of these items so inserted, as taxes he was bound to pay. Payment was refused, and Beaufait seized and sold Feller's wagon. Feller then sued in trespass before a justice, and recovered. The case was appealed, and on trial without a jury Ferton and Beaufait sought to justify under the collection roll and the proceedings had upon it, but the court, on a special finding, gave Feller judgment for forty-two dollars and forty-two cents and costs.

The case raises the general question whether the findings established a justification. Because if they did not, a recovery was warranted, and we are of opinion they did not.

First. Without attempting to specify the conditions which are necessary to authorize the ordering and making of a new roll, or the precise limits set by law in regard to its ingredients, it is sufficient here to say that the act of Ferton was in no just sense the construction of a new roll, and consequently what he in fact did was not warranted or supported by the terms of the authority the board assumed to confer upon him.

In the nature of things there must be a radical distinction between the construction of a new roll and an act which contemplates the continuance of an old one with unchanged identity, and merely alters it in some specific particular. And it would seem like confounding perfectly separate and distinct matters to say that a roll already lawfully in use by the treasurer for collection is made a new one in the sense of the statute by a change of some of the items in it as to three or four tax-payers. Here there was no physical change of one document for another, and no such alteration in the reading as to destroy identity and give to the roll the character of a new one.

Second. The seizure here was not made on the strength of the roll as it stood when drawn up under the statute and delivered to the treasurer, and not for the same gross sum, and not for the same items of amount for state, county and township taxes respectively; and not under a warrant made, attacked and directed for the collection of the same items or the same gross amount. The amounts to be collected of Feller when the roll was completed by Ferton, and when the latter attached his warrant and passed the finished document from his statutory power into that of Beaufait for the purpose of collection, were stricken out by Ferton, and the seizure of Feller's property was for items Ferton inserted when he thus struck out the original ones. Had it been made on account of the original items, in disregard of Ferton's alteration, the case would have been open to very different considerations. That Ferton had no power, as a consequence of...