Town of Warrensburg ex rel. Colbern v. Miller

• Citation: 77 Mo. 56
• Parties: THE TOWN OF WARRENSBURG ex rel. COLBERN, Appellant, v. MILLER.
• Decision Date: 31 October 1882
• Court: United States State Supreme Court of Missouri

77 Mo. 56

THE TOWN OF WARRENSBURG ex rel. COLBERN, Appellant,

v.MILLER.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Johnson Circuit Court.--HON. W. S. SHIRK, Judge.

REVERSED.

Philips & Jackson for appellant.

J. J. Cockrell for respondents.

SHERWOOD, J.

Action on the bond of defendant, who was town marshal and ex-officio collector of the town of Warrensburg. The breach assigned is the wrongful seizure and sale by the defendant under color of his office of the personal property of the relator. The sale of the property being admitted, the controlling question in the case is whether by reason of the circumstances detailed in evidence, any liability on the part of the defendant has been incurred.

In order that an officer may justify under process it is essential that jurisdiction be possessed by the court o tribunal from which that process emanates, and that such process be fair on its face. In the case at bar was the process fair on its face, and did the council have jurisdiction? If these questions be answered in the negative the liability of the officer must be deemed established. To determine how these questions should be answered we will examine the facts in the case and the charter and ordinance of the town of Warrensburg.

The town clerk and ex-officio town assessor had assessed the property of the town and returned the assessment and list to the mayor on the 1st day of May, 1874. This assessment was made in April, 1874; when by the terms of the ordinance the town clerk was not to make the assessment until “after the 1st day of May in each and every year;” so that the initial step in the premises was contrary to law. There were some few appeals taken from this assessment, but relator did not appeal. The council gave notice to the inhabitants of the return of the lists and held a meeting to hear and decide ““all appeals of those aggrieved.” Notwithstanding the relator did not appeal the council at such meeting not only increased the total valuation of the town property to some extent, but increased the valuation of relator's property more than two fold. This was clearly beyond the power of the council. They only possess the power of correcting the assessor's list when an appeal is taken and not otherwise. Nor did they obey the organic law of their municipality, to-wit: their charter, when they by resolution extended the taxes on the list thus corrected by them and ordered such taxes to be levied, etc., because that charter only conferred power on them to levy and collect taxes by ordinance. The resolution was, therefore, a nullity.

But these proceedings of the council in contrariety of charter and ordinances did not stop with this unauthorized resolution. On the first day in October in each year, section 13, ch. 3, art. 2 of the ordinances requires that the tax-book be returned to the city council and that “such tax-book shall thereafter remain on file in the office of the clerk of the town for the inspection of all persons interested.” Within twenty days after the return of the original tax-book it is made the duty of the clerk to transfer to a book to be known as the ““delinquent tax-book,” the lands and lots upon which the taxes remain unpaid. “The collector, by virtue of such delinquent tax-book,” was authorized to seize and sell personal property. The original tax-book, however, was never returned and delivered to the town clerk as required by law. But on the 4th day of November, 1874, the council, by another resolution, ordered that the original tax-book “be turned over as the delinquent book for 1874, to J. K. Miller, marshal and ex-officiocollector, and that he receipt for the same,” and it was by virtue of this, the original tax-book, that the seizure and sale were made.

It is quite plain from the foregoing brief recital of facts and reference to the charter and ordinances of the town of Warrensburg, that the seizure and sale of relator's property were altogether unwarranted by law. If the town clerk can anticipate by one month the day of assessment pointed out in the ordinance then might he do so for a much longer period. As the assessment is the only valid foundation for all the proceedings which follow it, “it is, therefore, not only indispensable, but in making it, the provisions of the statute, under which it is to be made, must be observed with particularity.” Cooley Tax., 260. If the town council can, in direct violation of their charter, levy taxes in any other method than that provided, by ordinance, then the charter possesses no binding or obligatory force. If the town council can, in contravention of its own ordinance, correct the assessment list prepared by the town assessor and increase the valuation of the property when no appeal is taken from such assessment, then the ordinance is of no avail as a rule of municipal action. Similar observations are equally pertinent as to the resolution commanding that the original tax-book be turned over to the marshal as the “delinquent tax-book.” In no circumstances does the ordinance allow the original tax-book to be used as the execution process. The ordinance having provided that the “delinquent tax-book” should authorize the collector to seize and sell personal property, every other method of proceeding was obviously excluded. Alexander v. Helber, 35 Mo. 334. And the defect was apparent on the face of the original tax-book, and the collector to whom it was delivered was bound to know the law, and that he was acting under void process and at his peril. State v. Shacklett, 37 Mo. 280. And the resolution of the council ordering that the collector use the original tax-look as the “delinquent tax-book,” does not help the matter nor better the collector's plight. The council could not by a resolution violate their own municipal law. No more could they authorize any one else to do so.

The principle announced in cases of this sort is, that “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.” Cooley on Tax., 292, and cases cited. Under the ordinance the “delinquent tax-book” is but another name for a warrant, such as is usually employed in tax collections and sales, and is, therefore, to be governed by similar rules. Where a warrant issues “it must conform to the law authorizing it and be issued by the proper person designated by law, or it is no protection to a collector.” Ib. In the present instance, not only was there an entire lack of legal process, but even that which was unwarrantably substituted therefor was not issued by that officer who alone possessed authority to issue legitimate process.

If a circuit court, being possessed of jurisdiction over person and subject matter, should order that the amount recovered by its judgment be indorsed on the writ of summons, and that this writ be used by the...