Murphy v. Sheppard

• Decision Date: 04 December 1889
• Citation: Murphy v. Sheppard, 12 S.W. 707, 52 Ark. 356 (Ark. 1889)
• Parties: MURPHY v. SHEPARD
• Court: Arkansas Supreme Court

12 S.W. 707

52 Ark. 356

MURPHY v. SHEPARD

Supreme Court of Arkansas

December 4, 1889

APPEAL from Desha Circuit Court, JOHN A. WILLIAMS, Judge.

This was a proceeding in chancery to enforce the collection of a levee tax assessed upon the defendant's land, in accordance with the provisions of an act entitled, "An act to provide for building and repairing the public levees of this State," approved March 20th, 1879. The statute provides for the election of certain directors of levees, and assessors, and that they shall, before entering upon the discharge of their duties, take and subscribe to the oath required by section 20, article 19 of the Constitution of this State, which is the general oath of office prescribed for all State and County officers. The defendant demurred to the complaint, stating as one of his grounds of objection thereto, that it contains no averment that the directors and assessors "took and subscribed the oath of office prior to entering upon the discharge of their duties." * * * The demurrer was overruled and on the trial the court excluded evidence offered by the defendant to show that the directors and assessors did not qualify, as required by law. The decree was for the plaintiffs, and the defendant appealed.

Judgment affirmed.

James Murphy, for appellant.

1. The assessors did not take the oath prescribed by section 17 of the act March 20, 1879, Acts, p. 117. They never qualified at all as required by law, and the assessment was invalid. See 2 Greenl., 218; 9 N.H. 491; 1 Foster, 400; 13 S. &R., 208; 1 Bush., 259; 21 Ark. 581; 25 N.W. 13; 49 Wisc., 291; 71 N.Y. 309; 27 Am. Rep., 47; 10 A. 451; 3 N.W. 382; 18 How. 137; 30 Me. 319; 2 Vt. 218; 12 id., 674; 15 Me. 29; 3 Greenl., 227; 4 id., 72; 20 Me. 199; 2 Mich. 498 (Gebbs) .

X. J. Pindall, for appellee.

1. The assessors were officers de facto, and their acts cannot be attacked collaterally. 22 Ark. 559; 43 id., 243; Mansf. Dig., sec. 4389; 25 Ark. 336; 32 id., 666.

2. This is not a proceeding against a de facto officer, but a proceeding concerning a third person. 38 Ark. 336.

OPINION

PER CURIAM.

An assessor who fails to take the general oath of office required by the law, is an officer de facto, and his acts are valid when questioned collaterally. Moore v. Turner, 43 Ark. 243; Twombly v. Kimbrough, 24 Ark. 459; Equalization Board v. Landowners, etc., 51 Ark. 516; Cooley Taxation (2 ed.), pp. 253-6.

Affirm.