Turner v. Franklin

• Decision Date: 31 January 1860
• Citation: 29 Mo. 285
• Parties: TURNER, Plaintiff in Error, v. FRANKLIN, Defendant in Error.
• Court: Missouri Supreme Court

29 Mo. 285

TURNER, Plaintiff in Error,

v.FRANKLIN, Defendant in Error.

Supreme Court of Missouri.

January Term, 1860.

1. If a rate-bill and warrant issued by a board of school trustees under the twelfth subdivision of the fourth section of the fifth article of the act providing for the organization of schools (R. C. 1855, p. 1437) be regular and valid upon its face, the constable will be protected in executing it; he is not obliged to examine into the validity of those acts of the board of trustees upon the basis of which the warrant and rate-bill are issued.

Error to Miller Circuit Court.

This was an action originally commenced before a justice of the peace to recover damages for a wrongful levy upon and sale of a horse. The defendant justified the alleged trespass, setting up that he made the levy and sale under and by virtue of a warrant and rate-bill issued by a board of school trustees. The plaintiff offered to show that by agreement the property of certain persons was not taxed; that they voted for the levy of the tax. This was excluded. Plaintiff also offered to prove that notice of the meeting was not given as required by law; that a majority of the qualified voters in the district did not vote to levy the tax. This also was excluded. There was evidence tending to show that the defendant made a demand as constable of the tax levied against plaintiff.

The following instruction asked by the plaintiff was refused: “If the defendant only exhibited his rate-bill and did not demand the tax of the plaintiff, defendant could not lawfully sell said property under said rate-bill; and in the absence of such demand the jury will find for the plaintiff the value of his said mare.”

The court, at the instance of the defendant, gave the following instruction: “If the jury find from the evidence that the defendant sold plaintiff's mare under and by virtue of the rate-bill read in evidence, and that before such levy and sale he demanded of the plaintiff the amount assessed against him, and plaintiff refused to pay the same, the jury will find for the defendant.”

The plaintiff took a non-suit, with leave, &c.

Parsons & Ewing, for plaintiff in error.

I. The court erred in admitting the rate-bill and record of the trustees as evidence of the statements contained in them. The rate-bill was no legal authority like an execution. The law must be strictly complied with that authorizes the issuing of the rate-bill. The assessment and consequently the rate-bill is absolutely void, the law not having been complied with. The constable, the law not having been complied with, is liable as a trespasser. (Sayre v. Tompkins, 23 Mo. 445; Atchison v. Amick, 25 Mo. 407; R. C. 1855, p. 1436, § 4.) The court should have admitted the testimony offered by plaintiff tending to show that the law had not been complied with, and have granted the instruction asked. A presentation of the rate-bill is not sufficient. (25 Mo. 407.) The court erred in giving the instruction asked. The rate-bill is not conclusive evidence of the statements in it, nor that the law has been complied with. No sufficient demand was proved.

NAPTON, Judge, delivered the opinion of the court.

The fourth section of the fifth article of the act regulating common schools, among other duties and powers entrusted to the trustees of a school-district, requires them “to make out a rate-bill,...