State v. Hawkins

• Decision Date: 16 November 1887
• Citation: 11 A. 265,50 N.J.L. 122
• Parties: STATE (ESTELL and another, Prosecutors) v. HAWKINS, Collector.
• Court: New Jersey Supreme Court

11 A. 265

50 N.J.L. 122

STATE (ESTELL and another, Prosecutors)

v. HAWKINS, Collector.

Supreme Court of New Jersey.

November 16, 1887.

On certiorari to review tax.

The prosecutors were returned by the collector of Weymouth township, Atlantic county, in December, 1885, as delinquent tax-payers. They were in arrears for taxes levied upon their real estate in said township for the years 1884 and 1885. A tax warrant was regularly issued to the collector, commanding him to make their taxes by sale of their goods and chattels. This warrant was returned to the justice who issued it, with the taxes uncollected, and on August 28, 1886, an alias tax warrant was issued by the justice to the collector, again commanding him to make the tax by distress and sale of delinquents' personal property. Another warrant was issued on August 17, 1886, commanding the tax to be made by a sale of the lands. On October 21, 1886, the collector, with the warrants of August 17th and August 28th in his hands, advertised to sell the lands and real estate of the prosecutors under the warrant of August 28, 1886. The description of lands in the notice of sale was the same as that contained in the assessor's duplicate; namely, Etna tract, farm at Estelleville, the homestead farm where they lived, and meadow on Middle river. Before the date fixed in the notice for the sale this writ of certiorari issued.

Learning & Black, for prosecutors. E. I. P. Abbott, contra.

KNAPP, J. This writ removes into this court the taxes assessed against the prosecutors for the years 1884 and 1885. By an amendment to the writ the warrants issued for the collection of these taxes were brought in.

Of the several reasons assigned for holding the taxes and proceedings for their collection to be invalid, three only are relied upon by the prosecutors. The first is: "Because the tax warrant, issued on the twenty-sixth day of August, 1886, under which warrant the land of the prosecutors was advertised to be sold, was illegal and void." The warrant thus objected to was an alias tax warrant issued by a justice of the peace upon the return of the original, with the names of tax-payers whose assessments had not been collected under such original, among whom the prosecutors were included. It was, therefore, within the power of the justice, and it was made his duty, on such return to issue an alias warrant to enforce payment of the taxes which the first had failed to secure. The supplements of April 1, 1868, and March 24, 1869, to the act concerning taxes, (Revision, 1161,) are authority for such official action of the justice, and the precept issued by him, in substance and form appears to be in strict compliance with legal requirement. We fail to see any ground for holding it to be illegal. The special complaint urged under this reason was that the defendant to whom the alias warrant was directed for execution had, without any authority in the warrants so to do, advertised to sell the lands of the prosecutors for their unpaid taxes. It is entirely manifest that such action on his part could have no countenance under a precept for the sale of goods and chattels. Any interference with prosecutors' laud in virtue of its command to the defendant was entirely unwarranted, and the prosecutors might have wholly disregarded his action. But it is equally plain that such proceeding on his part could not...