Jackson County v. Gullatt , 84 Ala. 243 ( 1887 )

CLOPTON, J.

The decrees of February, 1885, and October, 1885, are not such final decrees as will support an appeal. They are directions to the rogistej:, as to the manner in which he will take and state the account, which it was his duty to obey. If the directions were regarded as erroneous, and it was desired that the chancellor should review them, the complainant properly effected this by excepting to the report of the register and thus bringing the direction again to the attention of the chancellor; which it was in his power to modify or alter, if he deemed them unjust or incorrect. — Lang v. Brown, 21 Ala. 179. The motion to strike out the assignments of error relating to these decrees must be overruled. — Walker v. Crawford, 70 Ala. 507; Stringfellow v. Ivie, 73 Ala. 209.

There can be no question that a warrant of authority of some kind is necessary to enable the tax-collector to collect taxes by compulsory proceedings. In some States, a special or formal warrant is provided for. When the statute thus provides, the warrant must conform substantially to its provisions, and the statutory requirements as to its frame and issue should be carefully observed; as the collector is- a trespasser, if he proceeds to compulsory action without the authority which the statute provides. Says Mr. Cooley: “This, in different States, may be the assessment roll or list, with the tax extended upon it; or it may be a duplicate of the list, with a like extension; or it may be either of them, with a formal warrant attached, particularly indicating what are his particular duties under it, and commanding their performance.” — Cooley on Tax. 424. Where the statute makes provision for the attachment of a formal warrant to either, whether the assessment roll or the duplicate constitutes the warrant of authority, depends on the requirements, as to which the formal warrant shall be attached. The principles which govern in such cases, are scarcely applicable where the statutes, as in this State, make no provision whatever for a formal warrant. But, nevertheless, the collector must have a warrant of authority, to justify the compulsory collection of taxes.

By the revenue laws, in force during the time of the transactions in controversy, it was made the duty of the tax-assessor, to enter in a book, suitably ruled and substantially bound, tbe names of persons assessed in eacb precinct, and tbe quantity and value of 'tbe real and personal property assessed to eacb person, and to extend and foot up tbe whole number, amount and value of eacb separate item entered therein, and tbe total amount of tbe assessment for tbe county; and also to make a book containing a list of all tbe persons in eacb precinct liable to poll-tax. These books tbe assessor is required to deliver to the judge of probate, by the first Monday in July. After tbe court of county commissioners has corrected any errors in tbe assessor’s return, be is required to correct bis books accordingly; and tbe judge of probate is required to certify thereon, that tbe same have been examined and corrected, tbe amount of tbe State and county tax separately, tbe total tax on property, and tbe total amount on polls. — Code of 1876, §§ 395-433. Section 435 provides; “After tbe court of county commissioners have received tbe books from tbe tax-assessor, and have corrected errors as provided for in this article, tbe probate judge must make a book, containing in concise form, the amount of taxes due by eacb tax-payer, which book shall show tbe amount on real estate and personal property separately, together with tbe fees of tbe assessor and collector, which book must be turned over by tbe judge to tbe tax-collector on or before tbe day when the taxes become due.” Tbe judge of probate did not comply strictly with this section, but instead thereof, filled up the stubs in stub-books, which contained all tbe matter which be should have put in tbe book required by the section, which books be delivered to tbe collector, who received and acted under tbe same. Appellees contend, that tbe book required by section 435 is tbe collector’s warrant of authority, and indispensable to tbe corppulsory collection of taxes; and as such book was not furnished to tbe collector, be and bis sureties are not liable for taxes, which by reasonable diligence be could have collected, but failed to do so.

Tbe question as to what constitutes tbe collector’s warrant of authority under our statutes has never been directly presented or decided, though it has incidentally arisen in some cases. An examination of these cases will manifest, that tbe assessment book prepared by the assessor and certified by tbe judge of probate, and tbe book provided for by section 435, have been indescriminately regarded and styled tbe collector’s warrant of authority. In Timberlake v. Brewer, 59 Ala. 108, tbe question for decision was, whether tbe collector was chargeable for tbe total amount of tbe taxes, certified by the probate judge upon the assessors’s books, or with the correct aggregate of the individual items therein. The court held that he was chargeable with the latter. It is said : “The assessment book, when delivered to the collector, is the authority and warrant on which he proceeds in the collection of taxes. Not authority and warrant for the collection of the amount of the taxes as shown by the aggregate value of the taxable property as certified by the judge of probate. It is authority and warrant for the collection, from each tax-payer, of the tax assessed on property to him, whether the aggregate, as shown by the certificate of the judge, is lessened or increased.” It is apparent that the book referred to is the book of the assessor, this being the only assessment book to which the judge of probate appends a certificate, the only assessment book known to our statutes, and the only one offered in evidence or alluded to on the trial of the case. There was no evidence whatever relating to the book provided for by section 435. In Dudley v. Chilton County 66 Ala. 593, the question raised by the record, related to the admissibility in evidence of a book styled in the bill of exceptions the “assessor’s book.” The statements of the bill of exceptions left in obscurity, whether the assessor’s book, or the book prepared and delivered by the judge of probate to the collector was intended. Either was held to be admissible, and it was said: “If, as is insisted, it be true, it was the first of these books which was received in evidence, we are not prepared to say that it was wholly irrelevant. The probate judge may not have made the second book, and if he had not, the first book would have been important to show the amount of taxes assessed — a fact it may have been necessary to prove in showing the amount of county tax the collector would have collected.” The effect of the decision is, that on failure of the judge of probate to deliver to the collector the second book, the assessor’s book would be competent evidence for the purpose of showing the amount of taxes with which the collector is chargeable. In East v. Eichelberger, 69 Ala. 187, the question was, the right of the assessor to receive commissions on special taxes levied for the purpose of rebuilding or repairing the county jail. In the opinion rendered there is an expression, that the book, which the judge of probate is required to make and deliver to the collector by section 435, constitutes his warrant of authority. The terms employed in these cases may be harmonized on the theory, that under our statutes, the assessor’s hook, and the hook provided for by section 435, or either of them, will be regarded as a sufficient warrant of authority; but these general expressions, used because convenient and concise, though sufficiently accurate for the special purposes of the particular case, were not designed, and are not comprehensive enough, to be a complete definition of the collector’s warrant of authority to proceed by compulsory means.

We have said, that our statutes do not provide for a formal warrant, indicating the particular duties of the collector, and commanding their performance, nor authorizing him to resort to compulsory action for the collection of the taxes. He is authorized by the statute, without any special warrant, to levy on and sell the personal-property of delinquent taxpayers after the first day of January; and special provisions are made for the sale of real property for taxes by a decree of the probate judge. His authority to levy and sell personal property is based on the assessment as corrected by the court of county commissioners, and certified by the judge of probate. The book required by section 435 confers no authority to collect taxes by any compulsory process, though it may be regarded in the nature of a secondary warrant of authority to receive taxes voluntarily paid. It possesses none of -che features or requirements of a warrant, and the statute does not, expressly or by implication, declare that such shall be its effect. It is a mere statement in concise form of the amount of taxes due by each tax-payer, and the amount of taxes on real and personal property separately, together with the fees of the assessor and collector — a memorandum made from the assessor’s books. It is addressed to no officer, certified by none, aud indicates no particular duties to be performed other than to receive the taxes, and is mainly intended for the information, guidance and convenience of the collector. Its office is, a constructive delivery of the assessment book, of which it is an unauthenticated abstract.

If there should be discrepancies between entries therein and the assessor’s book, the latter controls; and should the probate judge, by inadvertance or design, enter therein taxes as due by a person and assessed on his property, when no such assessment had been made by the assessor, and entered in the assessment book, it would afford the collector no protection, if he knowingly attempted to force the payment of such taxes by levy and sale of property. The duty of the probate judge to make such book is clerical and ministerial, the observance or non-observance of which does not injuriously affect the tax-payer, and being intended to promote convenience and dispatch in the collection of taxes, the statutory provision relating thereto must be regarded as directory. Auditor v. Jackson County, 65 Ala. 142. The legislature could not have intended to rest the collection of the revenue of the state on the performance of such duty by the various judges of probate, and we should not so declare, unless expressly or clearly implied.

A valid assessment is essential to the collection of taxes; but when such assessment has been made, the assessment book examined, corrected and properly certified, and the taxes become payable, the statute makes it the duty of the collector to proceed to receive the taxes, by making appointments in each precinct, which appointments must be completed by the thirty-first day of December; and after the first day of January he is authorized to compel the payment of taxes by. a sale- of personal property. This he can lawfully do, though the judge of probate may have failed to prepare and deliver to him thé book as required by section 435. For this purpose no execution or special warrant of any character is requisite. His protection for such compulsory proceeding rests on a valid assessment, and the statutory duty and authority. In this State, where no special warrant is provided, and there is no statutory declaration as to what shall be the warrant of authority, the statutes which impose the duty to collect, and prescribe the modes of compulsory collection, when founded on a valid assessment, constitute, in its primary sense, the collector’s warrant of authority, and no preliminary process or warrant is necessary. As the tax collector was authorized directly by the statute to proceed by compulsory action to collect the taxes, and as the book provided by section 435 is not essential to his protection, and having undertaken their collection by virtue of his office, he is chargeable with the taxes, which he could have collected, and failed to do.

Reversed and Remanded.