Thomas v. Clapp , 20 Barb. 165 ( 1855 )

Bockes, J.

The renewal was equivalent to a new warrant. (Seaman v. Benson, 4 Barb. 444. Smith v. Randall, 3 Hill, 498. Folsom v. Streeter, 24 Wend. 269. Gale v. Mead, 4 Hill, 109. Parker v. Brown, 17 Barb. 145.) The cow was therefore seized and sold under the command of Clapp and Chapman only. Hathway did not sign the renewal, but refused so to do. The county judge was therefore correct in deciding that'the judgment was erroneous as to Hathway. The point is decided in Van Rensselaer v. Kidd, (2 Selden, 331,) where it is held that an officer issuing a warrant which is irregular and void, is not liable for the execution of it, after the return day.

If the warrant was fair on its face it afforded complete protection to the collector. (Alexander et al. v. Hoyt, 7 Wend. 89. Savacool v. Boughton, 5 id. 170. Dunlap v. Hunting, 2 Denio, 643, 645. Bennett v. Burch, 1 id. 141, 145, 146. Cornell v. Barnes, 7 Hill, 35.) And this rule obtains, even though he has knowledge of facts rendering the process void. (The People v. Warren, 5 Hill, 440. Webber v. Gay, 24 Wend. 485.) The warrant commands the collector to collect the several sums specified in the tax list annexed, from the persons therein named, as thereby assessed, together with five per cent for fees. If there is any informality in the warrant it consists in the direction to collect five per cent for fees; the law of 1849 (Sess. Laws of 1849, p. 555) entitling the collector to but one per cent on all sums paid in within two weeks. This statute does not prescribe a new form for the warrant, but limits the action of the collector under it. He cannot demand or receive over one per cent for such sums as may be paid in to him within two successive weeks, and when he proceeds to collect after the expiration of that time he may collect, and should be commanded to collect, five per cent for his fees. He is to remain passive to receive during two. weeks, and then is to proceed to collect, when he may demand five per cent on his collections for fees. (Parker v. Brown, 17 Barb. 145.) It was sufficient that the warrant was signed by two of the trustees. The statute requires that the warrant should be under the hands of the trustees, or a majority of them. (1 R. S. 903, 4th ed. p. 144. Folsom et al. v. Streeter, 24 Wend. 266.) The warrant was fair on its face, and hence afforded complete protection to the collector.

The tax was levied and assessed by all the trustees; and in performing those duties they acted together, and all concurred. This was an end of their judicial labors, and it was unimportant whether all were present or not when the warrant was signed. The signing of the warrant was but a ministerial duty. The case of Lee v. Parry, (4 Denio, 125,) and kindred cases, have therefore no application to this.

The statute requiring the tax to be assessed and the tax list therefor to be made out by the trustees and a proper warrant attached thereto, within thirty days after the district meeting in which the tax shall have been voted, is merely directory as to time. It being for the benefit of the public, those acts may be done after the time specified in the statute has elapsed.

(Gale v. Mead, 2 Denio, 160, and cases there cited.)

It only remains to inquire whether the trustees had jurisdiction to levy the tax; and on this question there can be but one opinion. They acted in pursuance of their duty, under a resolution adopted at a regular meeting of the inhabitants of the district.

[Fulton Special Term, May 15, 1855.

The judgment of the county court should be affirmed.

Bockes, Justice. Affirmed at the Essex General Term, July 2, 1855, C. L. Allen, Bockes and James, Justices, for the reasons given in above opinion.]