State ex rel. Hazard v. Spiva

• Decision Date: 01 January 1890
• Citation: 42 F. 435
• Parties: STATE OF MISSOURI ex rel. HAZARD v. SPIVA et al. HAZARD v. SPIVA.
• Court: U.S. Court of Appeals — Eighth Circuit

42 F. 435

STATE OF MISSOURI ex rel. HAZARD v. SPIVA et al.

HAZARD v. SPIVA.

United States Circuit Court, E.D. Missouri, Eastern Division.

January 1, 1890

Lee &amp Ellis and George R. Lockwood, for plaintiff.

George D. Reynolds and R. A. Anthony, for defendant.

The first of these suits was an action on the official bond of H S. Spiva, as collector of the revenue for Madison county Mo., to recover damages for an unlawful levy made September 15, 1889, on certain personal property of Hazard's, to enforce payment of certain taxes assessed against Hazard on real estate for the year 1888. The laws of Missouri provide in substance, that no levy shall be made under a tax-bill until a demand for the payment of the same shall have been made by the collector or his deputy, of the party liable therefor, or by leaving a written or printed demand at his place of abode with some member of the family over 15 years of age. Rev. St. Mo. 1889, Sec. 7608. The complaint is that the levy was made without such demand, and was therefore unlawful. The defendants interposed a special plea to the effect that Hazard was a non-resident of the state, owning expensive lead mines, smelting furnaces, machinery, stores, etc., in Madison county, and that such property is, and for years has been, in actual charge and control of an agent of Hazard's, and that a demand for the payment of the tax-bill, such as the statute requires, was made of such agent, it being impossible to make a demand on Hazard himself in either of the ways pointed out by the statute. To such plea there was a demurrer. The second suit (No. 3,104) was an ordinary action of replevin brought by Hazard to recover possession of 2,000 pigs of lead, which were levied upon by the collector on January 20, 1890, for taxes of 1889 assessed against Hazard. It is claimed that such levy was unlawful for want of a proper statutory demand, and there was a plea as in the first suit that a sufficient demand was made on Hazard's agent. To this plea there was a demurrer.

The substantial questions in this case are: (1) Can a collector of taxes in this state, under section 6754, Amended Acts 1883, p. 143, seize and sell personal property to satisfy a tax-bill against the owner, without in person or by deputy having a made a demand of the owner for the payment of the tax, or leaving a written or printed notice for that purpose, at the place of abode of the owner, with some member of his family over the age of 15 years? (2) If a seizure of property, under said section is made, will replevin lie therefore; that is, is it seized under any process, execution, or attachment against the property of such owner, plaintiff in replevin?

1. The answer to the first question must depend chiefly upon the language of the statute, as the exact point raised has never been decided, so far as we know, by the courts of this state. Turning to the statute, (formerly Sec. 6754, Rev. St. 1879,) we find that the conditions precedent to a seizure of property by the collector are a demand of the person liable to pay the tax, or by leaving notice thereof at his place of abode with some member of his family over 15 years of age. It is apparent from the answer demurred to that the tax was not personally demanded of Mr. Hazard by the collector or his deputy, nor was notice to pay the same left at his place of abode with a member of the family over the age of 15 years. To which of these demands that is set up in the answer equivalent; and, if equivalent to either, why that, rather than the alternative? And where is the authority for saying that there can be any demand equivalent to those prescribed by the statute? If the demand set up is said to be equivalent to a personal demand, we say that the statute prescribes a method of demanding the tax when a personal demand cannot be made, and the demand alleged is not that prescribed in such case. On the other hand, if the demand set up is said to be equivalent to notice left with a member of the family, we say that the statute does not provide for any equivalent to such notice, except personal demand. If a personal demand for taxes is not made, the notice may be served as a summons may be, and, if the demand set up would not be a good return of service of a summons, it is not good as a demand, under section 6754; and who would think of pretending that the facts set up in the defense demurred to would be a good return by a sheriff of service of summons. The seizure and sale of a person's property, without a trial or judicial determination of the liability of the owner for the debt for which his property is taken, is certainly a high governmental power, and therefore there must be a distinct authority of law for the seizure; and every condition precedent thereto, though apparently trivial, must be complied with.

Railway Co. v. Apperson, 97 Mo. 300, 10 S.W.Rep. 478, recognizes and strictly enforces this doctrine, citing as authority therefore: Blackw. Tax titles, (2d Ed.) 255; Dill. Mun. Corp. (2d Ed.) 610; Cooley, Tax'n, (2d Ed.) 324, 348, and many Missouri decisions. In Town of Warrensburg v. Miller, 77 Mo. 56, the doctrine now under consideration is rigidly applied and the court says, (page 60,) citing Cooley: 'Whatever the statute provides for in this regard the collector must have, and he is a trespasser if he proceeds to compulsory action without it. ' See, also, Howard v. Heck, 88 Mo. 456. But this question is almost put beyond argument by the decision of the St. Louis court of appeals in State v. Sargent, 12 Mo.App. 237, where the court, in speaking of section 6754, says: 'No does the law allow the collector to seize personalty for taxes without notice to the party liable, given in person, or by leaving a copy with his family at his residence, which in case of non-residents seems impossible. ' This declaration by the court of appeals, the language of the statute, and the principles of law governing the exercise of the authority asserted by defendant, as established by the leading text-writers and the decisions of the supreme court of Missouri, make it clear, we think, that defendant was a trespasser when he seized the property involved in this suit.

2. The next question to be considered is whether this property was seized under any process, execution, or attachment against the property of the plaintiff; or, in other words, is the tax book a process against the property of those whose property is listed? The constitution of Missouri, in section 38 of article 6, entitled 'Judicial Department,' provides that all writs and process shall run in the name of the state of Missouri; and the statutes (section 4037, Rev. St. 1879) say that all writs and process issued out of any court of record shall run in the name of the state of Missouri, and shall be tested by the clerk, and sealed with the seal of the court; and section 4038 provides that all writs and process issued by any judge or justice of the peace, or other officer authorized to issue the same, shall run in the name of the state of Missouri, and be subscribed by the officer issuing the same. Bouvier speaks of 'process' as 'the method taken by law to compel a compliance with the original writ of commands of court. ' Wharton's Law Lexicon tit. 'Process,' says: 'It is largely taken for all the proceedings in any action or prosecution, real or personal, civil or criminal, from the beginning to the end. ' Abbott's Law Dictionary says of 'process' that it is 'strictly the mandate of the court to the officer, commanding him to do certain things or perform certain services within his official cognizance. ' Tomlin's Law Dictionary says of 'process'-- 'First. It is largely taken for all the proceedings in any action or prosecution, real or personal, civil or criminal, from the beginning to the end. Secondly. That is termed the process by which a man is called into any temporal court, because it is the beginning or principal part thereof, by which the rest is directed; or, taken strictly, it is the proceeding after the original, before the judgment. ' Anderson's Dictionary of the Law says of 'process:' 'Something issuing out of a court or from a judge; a writ of any nature. ' 'At common law the means of compelling the defendant to appear in court. ' By Code Iowa, 1851, (or section 4455, Rev. St. 1888,) the petition in replevin must state that the properly replevied was not taken on the order or judgment of a court, nor on execution or attachment; but in Morford v. Unger, (1859,) 8 Iowa, 82, replevin was maintained for property taken 'by virtue of a precept or warrant' affixed to a tax-list. In Gilmer v. Bird, 15 Fla. 410, it was decided that a notice given, under the Code, by an attorney, of the institution of a suit, in the form of a summons, but not issuing out of a court, was not process, within the meaning of that provision of the constitution of Florida which provided that the style of all process shall be 'The State of Florida,' citing Baron COMYN, who says: "Process,' in a large acceptance, comprehends the whole proceeding after the original, and before the judgment, but generally it imports the writs which issue out of any court to bring the party to answer or for doing execution, and all process out of the king's courts ought to be in the name of the king. ' In this case it was also...