Hershey v. Fry

Wright, C. J.

It is assigned for error: First. That tbe offered testimony should have been admitted; Second. That tbe defendant should have been required to show that tbe tax bad' been regularly and properly assessed ; and Third. That tbe plaintiff should have been permitted to show negatively, that said tax bad not been properly levied as to plaintiff’s property.

Tbe first and third assignment may properly be considered together, as they involve substantially tbe same question. By tbe charter of this city, tbe marshal is tbe collector of taxes levied for city purposes. Before proceeding to collect tbe same, be is required to give thirty days’ notice of tbe assessment and levy of tbe tax, and tbe rate thereof, in general terms, without names, or tbe description of tbe property, in a newspaper printed in the city, if there be one; and if none, then by two written notices posted in public places'in each ward. During said thirty days, any person aggrieved by tbe assessment or taxation, may appear before tbe city council, which may correct tbe same, if erroneous. The-mayor is to affix bis warrant to tbe tax list, and sucb warrant and list, shall be a justification to tbe collector. So, also, tbe latest county assessment roll, shall form tbe basis of tbe city assessment, but any property therein omitted, may *595 be added bj the city assessor, be being authorized to assess the same. Where the tax is not paid within a reasonable time after demand, the marshal has power to distrain upon personal property liable to taxation, and sell the same, as the county collector may sell in like cases. See Laws of 1851, pages 66, 67, §§ 31, 37.

In this case, it will be observed, that the city assessment or tax list was introduced by plaintiff. There appears to have been no objection by him that the tax, as a whole, was not legally levied, or that the mayor and council were not in office under proper authority. Neither does he attempt to show, that he was not liable to pay taxes in said city; nor that the marshal was not properly elected and qualified as stich officer. There was no effort to show that he had not a proper warrant, or that he had not given the thirty days’ notice required by law; or that plaintiff had not full opportunity to appear before the city council, to correct any alleged erroneous assessment; nor is there any claim that the taxes had not been , demanded. On the contrary, we are justified in saying, that the regularity of the proceedings of the city officers in all these respects, and the liability of the said plaintiff to pay tax to some amount, is, in effect, conceded, from two considerations: the first of which is, that he claims in his pleadings to have tendered to the marshal all the taxes legally chargeable against him; and in the second place, because by his -pleadings and the offered proof, he seeks to establish, that the city, by its officers, had no authority to assess a certain specified lot or lumber, and for this reason, and none other, does ho maintain, that the officer was not justified in levying upon the property replevied. In other words, the basis of his action is, that inasmuch as the assessor had not properly performed his duty, or had transcended his power, therefore, the marshal was not justified in distraining the property. If he could prove this, could it avail him in this action ? We think not. We are aware, that upon this subject, the decisions are far from being uniform. Where, however, a tax has been legally ordered by officers, de jure certainly, if not *596 de facto, against a person, liable to be taxed, and the officer, who has been duly chosen and qualified, has a prgper warrant to collect said tax, he will, in the absence of fraud on his part, be thereunder protected, and is not answerable for any irregularities in the previous proceedings. Smith v. Shaw, 12 Johns. 257 ; Johnson v. Dale, 4 N. H. 480; Coleman v. Anderson, 10 Mass. 109 ; Dillingham v. Snow, 5 Mass. 547 ; Cloutman v. Pike, 7 N. H. 209; Little v. Merrill, 10 Pick. 547 ; Loomis v. Spencer et al., 1 Ohio, 153; The People v. The Supervisor's of Westchester, 15 Barb. 607 ; The Albany and West Stockbridge R. R. Co. v. Town of Canaan, 16 Barb. 244 ; Oakley v. Van Horn, 21 Wend. 305 ; Hart v. Dubois, 20 Wend. 236 ; Barnes v. Barber et al., 1 Gilman, 401 ; Parker v. Smith , 1 Ib. 411; Jackson v. Hobson, 4 Scam. 411 .

Without referring to the foregoing cases in detail, we think that most, if not all, of them fully sustain the foregoing proposition. In some of the cases from Massachusetts, it will be found, that the courts there hold that plaintiff’s remedy in such cases, is against the assessor, and not against the collector. The protection which the warrant affords to the collector, and the liability of the persons who illegally assess the tax, or cause it to be done, will also be found to be very fully discussed in the case above cited, from 1 Ohio, 153.

In the case before ns, it sufficiently appears that the irregularity, if any, originated with the assessor. Upon the face of the tax list everything was regular, and the collector was commanded, by the proper warrant, to collect the several. amounts appearing to be due and owing thereon. It was his duty to comply. He had no discretion in the matter, so far as this record discloses. If there had been no color of law for the assessment, or had it been made under an unconstitutional law, his position would,have been different. So, also, if the warrant had shown upon its face a want of power in the city council to act, or if he had levied upon the property of A. to satisfy the tax due frorp. B., he would not be protected.

The law contemplates that these grievances and irregularities, shall be' settled by application to the city council *597 within the thirty days named. That is the local tribunal to which has been appropriately delegated the power to correct any erroneous assessments. And public policy, as well as the proper administration of the local affairs of these smaller municipal organizations, would seem to dictate that parties should be required to apply within the time limited, except in those cases where, without the complaining party’s fault, manifest injustice will result, by 'concluding him by the lapse of time.

A party, if injured under such circumstances, is not reme-diless, as seems to be supposed in the argument, if the collector should be justified by his warrant. If the assessor had exceeded his power, or made an assessment, upon an illegal basis, to plaintiff’s prejudice, he may have his remedy against him. So also, a case might arise where the corporation would be liable for the action of the council in ordering the collection of the tax. Again, should the council refuse to act, on a proper application to correct an erroneous assessment, it could be compelled to by the process of mandamus. Thus, in various methods, may the aggrieved party be protected in his rights; and methods, that to our minds, are more consonant with reason, and what is due to an officer acting in good faith, under a legal process, than to make him liable in damages, for the action of those with whom the injury may have originated, and who properly should be held responsible.

This view of the case, renders it unnecessary to examine the second assignment of error. The plaintiff, by introducing the assessment roll himself, urging no objection to its validity as such, and by admitting in his pleadings that defendant was the city marshal, and acting under the said roll and warrant, made it unnecessary that he should show affirmatively the power under which he acted. That had already been done for him.

¥e think that the testimony offered by plaintiff was properly rejected, being, under the circumstances, inadmissible to, or in any manner tend to, fix defendant’s liability.

Judgment affirmed.