all public officers, who have acted as such, have been duly appointed, unless the contrary is shown, applies to tax collectors.1 Where one is collector by virtue of the occupancy of some other office, as that of sheriff or constable, he holds two distinct offices, and must qualify for each.2 c. AUTHORITY-(1) Nature and Extent.-A tax collector's authority rests upon his warrant to make collections.3 In the absence of a warrant, he cannot proceed to enforce the payment of taxes.4 The tax roll, when completed, partakes of the nature of a judgment, and the warrant delivered with it to the collector is in the nature of an execution.5 given bond, was no defense against the enforcement of a tax, as he was still a de facto officer. But see Payson v. Hall, 30 Me. 319, as to the validity of a tax title, where the collector had not qualified. See generally, DE FACTO OFFICERS, vol. 5, p. 93. 1. Capwell v. Hopkins, 10 R. I. 378; Kent v. Atlantic De Laine Co., 8 R. I. 305; Tucker v. Aiken, 7 N. H. 113; Eldred v. Sexton, 5 Ohio 215. And see Downer v. Woodbury, 19 Vt. 329. See generally, PUBLIC OFFICERS, vol. 19, P. 436. 2. In re McCabe, 33 Ark. 396; Falconer v. Shores, 37 Ark. 386; People v. Ross, 38 Cal. 76; Lathrop v. Brittain, 30 Cal. 680; People v. Love, 25 Cal. 521. But see Broadwell v. People, 76 Ill. 554; Hughes v. People, 82 Ill. 78; Kilgore v. People, 76 IÎl. 548; Wood v. Cook, 31 Ill. 271. It is within the power of the legislature, however, to provide that there may be but one bond for both officers. People v. Ross, 38 Cal. 76. In Mabry v. Tarver, 1 Humph. (Tenn.) 94, the court held that, under a statute requiring from the sheriff, an officer elected for two years, a bond, as collector of taxes, conditioned for the payment of the taxes in each and every year, a bond, given at the beginning of his first year of office, conditioned for the payment of the taxes of each of the two years, is a good statutory bond. See also Nevill v. Day, 3 Humph. (Tenn.) 38; Governor v. Porter, 5 Humph. (Tenn.) 166; McLean v. State, 8 Heisk. (Tenn.) 271. 3. Hilbish v. Hower, 58 Pa. St. 93; Pearce v. Torrence, 2 Grant's Cas. (Pa.) 82; Stephens v. Wilkins, 6 Pa. St. 260; Ream v. Stone, 102 Ill. 359; Pearson v. Canney, 64 Me. 188; Slade v. Governor, 3 Dev. (N. Car.) 365; Den v. Craig, 5 Ired. (N. Car.) 129; First Nat. Bank v. Waters, 19 Blatchf. (U. S.) 242; Erskine v. Holmbach, 14 Wall. (U. S.) 613. The collector can exercise no authority not authorized by the warrant. State v. Hawkins, 50 N. J. L. 122. 4. Donald v. McKinnon, 17 Fla. 746; Young v. Thomas, 17 Fla. 169; 39 Am. Rep. 93; Ream v. Stone, 102 Ill. 359; Binkert v. Wabash R. Co., 98 Ill. 218; Hill v. Figley, 23 Ill. 418; Corbin v. Hill, 21 Iowa 70; Van Rensselaer v. Witbeck, 7 N. Y. 517; Homer v. Cilley, 14 N. H. 85; Den v. Craig, 5 Ired. (Ň. Car.) 129. In Donald v. McKinnon, 17 Fla. 746, it was held that a sale made by a collector without a warrant, passes no title. An objection that the collector acted without a rate-bill, must be taken at trial, and cannot be raised, for the first time, upon appeal. Picket v. Allen, 10 Conn. 146. 5. Moss v. Cummings, 44 Mich. 359; Bird v. Perkins, 33 Mich. 28; Thibodaux v. Keller, 29 La. Ann. 508; Holden v. Eaton, 8 Pick. (Mass.) 436; Hubbard v. Garfield, 102 Mass. 72; Cunningham v. Mitchell, 67 Pa. St. 78; Savacool v. Boughton, 5 Wend. (N. Y.) 171;21 Am. Dec. 181. And see Cheever v. Merritt, 5 Allen (Mass.) 563; Lincoln v. Worcester, 8 Cush. (Mass.) 55; Greene v. Mumford, 4 R. I. 318; Gossett v. Kent, 19 Ark. 602; Nowell v. Tripp, 61 Me. 426; 14 Am. Dec. 572; Clifton v. Wynne, 80 N. Car. 145; Mulford v. Sutton, 79 N. Car. 276; Gore v. Mastive, 66 N. Car. 371; Virdenn v. Bowers, 55 Miss. 1; Edes v. Boardman, 58 N. H. 584; Sheldon v. Van Buskirk, 2 N. Y. 473; Kansas Pac. R. Co. v. Wyandotte County, 16 Kan. 597; First Nat. Bank v. Waters, 19 Blatchf. (U. S.) 242; Erskine v. Holmbach, 14 Wall. (U. S.) 613. And see Yuba County v. Adams, 7 Cal. 35; Preston v. Boston, 12 Pick. (Mass.) 14; Byars v. Curry, 75 The collector is bound to obey a warrant in due form, issuing from the proper authorities, when it is not illegal on its face.1 Where a tax is partly legal and partly illegal, and the illegal portion is clearly severable from the rest, it is the duty of the collector to proceed with the collection of so much as is lawful.2 In some states the collector is not required to have any formal writ or warrant; his authority rests upon his compliance with the statutory requirements, and upon the tax book or roll, no preliminary process being necessary. The collector cannot, ordinarily, collect taxes for years anterior to his election and qualification; his power extends only to taxes accruing during the period for which he was elected.4 The general authority of the collector is confined to the limits of his own collection district, and if he undertakes to execute his warrant beyond these limits, he must bring himself within the provisions of a statute permitting it.5 Ga. 515; Harris v. Wood, 6 T. B. Mon. (Ky.) 641; State v. Lutz, 65 N. Car. 503; Den v. Craig, 5 Ired. (N. Car.) 129. The duplicate is but a memorandum of the amount which the collector is to collect from the parties therein named respectively. Hilbish v. Hower, 58 Pa. St. 93. A warrant fills the place and performs the functions of a summons, and is the writ to the officer, by which he is authorized to collect the tax, or, in the event of its non-payment, to subject the property of the taxpayer to sale therefor. Donald v. McKinnon, 17 Fla. 746. The collector's warrant and the tax roll together constitute the execution, and they must be construed together. Van Rensselaer v. Witbeck, 7 N.Y. 517. 1. First Nat. Bank v. Waters, 19 Blatchf. (U. S.) 242; Kellar v. Savage, 20 Me. 199; Smyth v. Titcomb, 31 Me. 282. And see Gove v. Newton, 58 N. H. 359; Lake Shore, etc., R. Co. v. Roach, So N. Y. 339. 2. Clifton v. Wynne, 80 N. Car. 145; Mendocino v. Chalfant, 51 Cal. 369. And see Trull v. Madison County, 72 N. Car. 388. In Vassalboro v. Nowell, 75 Me. 245, it was held that a collector who accepts a warrant and collects a portion of a tax, part of which is illegal, is obliged to collect so much of the remainder as is legally assessed. 3. Jackson County v. Gullatt, 84 Ala. 243; Parker v. Sexton, 29 Iowa 421; Tallman v. Cooke, 43 Iowa 330: Cedar Rapids, etc., R. Co. v. Carroll County, 41 Iowa 153; Litchfield v. Hamilton County, 40 Iowa 66; Rhodes v. Sexton, 33 Iowa 540; Timberlake v. Brewer, 59 Ala. 108; Johnson v. Chase, 30 Iowa 4. Otis v. Boyd, 8 Lea (Tenn.) 679; Fremont v. Boling, 11 Cal. 380. And see Skinner v. Roberts (Ga. 1893), 17 S. E. Rep. 353; Peck v. Holcombe, 3 Port. (Ala.) 329; Fitts v. Hawkins, 2 Hawks. (N. Car.) 394. In some of the states, collectors are empowered to complete their collections, notwithstanding new collectors may have been chosen and sworn. See Scarborough v. Parker, 53 Me. 252; Picket v. Allen, 10 Conn. 146. But this has been changed by statute in Connecticut. See Castle v. Lawlor, 47 Conn. 340. In Smith v. Riding (Del. 1891), 22 Atl. Rep. 97, it was held that a statute terminating the powers of collectors and abolishing the office, did not take from ex-collectors their power to collect all uncollected taxes included in their warrants for two years after the date thereof. If the officer is delayed by the taxpayer, he may proceed after the expi ration of the time within which he is required to act, Jones v. Arrington, 94 N. Car. 541; or after the expiration of his term of office. Kellar v. Savage, 20 Me. 199. See also Slade v. Governor, 3 Dev. (N. Car.) 365; Gordon v. Lafayette County, 74 Mo. 426. In Louisiana, the authority of the collector terminates when the delinquent list is returned. Hall v. Hall, 23 La. Ann. 135. 5. State v. Scammon, 22 N. H. 44; Gage v. Dudley, 64 N. H. 437; Mason (2) The Warrant—(a) Issuance.-The warrant must be issued by authority of law, and in the manner designated by statute. It must be issued by and to the proper person or body. It has been held that two or more warrants may be issued for the same tax.2 The officer issuing the warrant is presumed to have performed his duty, and to have complied with all the requirements of law, until the contrary appears. v. Johnson, 51 Cal. 612; McKay v. Batchellor, 2 Colo. 591. Removal of Taxpayer.-In Cheever v. Merritt, 5 Allen (Mass.) 563, it was held that where a taxpayer removes from a collector's district without paying his tax after its assessment, the collector's warrant for distress to the sheriff or constable of the town to which he has removed, need not recite the facts, i. e., the fact of removal, etc., which authorize the collector to issue it. This decision is apparently in conflict with that in Williamstown v. Willis, 15 Gray (Mass.) 427; but in Sherman v. Torrey, 99 Mass. 474, Chapman, C. J., attempts to reconcile them. Provisions for the collection of personal taxes, from persons removing from one county to another, by sending a tax bill to the sheriff of the county to which they remove, cannot be attacked upon the ground of want of due process of law. De Arman v. Williams, 93 Mo. 158. And the remedy is not impaired by the fact that the removal was made with intent to return. Houghton v. Davenport, 23 Pick. (Mass.) 235. Unorganized Counties.-An unorganized county is, in effect, a part of the county to which it is attached for the purpose of taxation, and the collection of taxes upon personal property situated in such county, may be enforced by the tax collector of the county to which it is attached. Llano Cattle Co. v. Faught, 69 Tex. 402. 1. Hilbish v. Hower, 58 Pa. St. 93; Chalker v. Ives, 55 Pa. St. 81; Butler v. Nevin, 88 Ill. 575; Van Wagenen v. Brown, 26 N. J. L. 196; Talmadge v. Rensselaer County, 21 Barb. (N. Y.) 611; Waite v. Hyde Park Lumber Co., 65 Vt. 103; Weimer v. Bunbury, 30 Mich. 201; Pearson v. Canney, 64 Me. 188; Nashville v. Pearl, 11 Humph. (Tenn.) 249. In Butler v. Nevin, 88 Ill. 575, it was held that where an ordinance does not designate the officer from whom the warrant must issue, as required by statute, the warrant cannot be issued at all, and if issued, will be void. In State v. Runyon, 42 N. J. L. 568, it was held that until a delinquent list has been duly returned by the proper officers, the warrant cannot issue. Where several persons collectively are authorized to issue the warrant, it is void unless issued by all. Townsend v. Gray, I D. Chip. (Vt.) 127. The warrant must be properly issued, although there is a statute providing that mere irregularities and omissions shall not invalidate the tax. Muskegon v. Martin Lumber Co., 86 Mich. 625. In Pearce v. Torrence, 2 Grant's Cas. (Pa.) 81, it was held that it must appear to the justice of the peace that the individual has refused to pay his taxes, before he can issue the warrant. Duty to Issue Mandatory-Mandamus to Compel. The duty to issue the warrant is ministerial, and mandamus will lie, in a proper case, to compel the performance of this duty. People v. Halsey, 53 Barb. (N. Y.) 547; aff'd 37 N. Y. 344. See People v. Ashbury, 44 Cal. 617. That the issuing of a warrant is a ministerial act, see Henry v. Sargeant, 13 N. H. 321; 40 Am. Dec. 146. Upon whom the Duty of Issuance Is Imposed. It is usually imposed upon assessors, treasurers, or other officers connected with the administration of the tax laws. See People v. Halsey, 53 Barb. (N. Y.) 547; Sprague v. Bailey, 19 Pick. (Mass.) 436; Butler v. Nevin, 88 Ill. 575. In Iowa, the county judge signs the tax warrant. Corbin v. Hill, 21 Iowa 70. 2. Eddy v. Wilson, 43 Vt. 362. Compare, however, Inglee v. Bosworth, 5 Pick. (Mass.) 500; 41 Am. Dec. 419; Pond v. Negus, 3 Mass. 230; 3 Am. Dec. 131. 3. Chandler v. Spear, 22 Vt. 388; Bank of U. S. v. Tucker, 7 Vt. 134; Doolittle v. Doolittle, 31 Barb. (N. Y.) 312; Clifton v. Wynne, So N. Car. 145; State v. McIntosh, 7 Ired. (N. Car.) 68; Clemons v. Lewis, 36 Vt. 673. (b) Contents.-The warrant must comply as to form and contents with the law authorizing its issue, any substantial non-compliance with the statutory requisites invalidating the warrant and all proceedings under it.1 But irregularities which do not affect the rights of the taxpayer, and accidental informalities, defects, and omissions do not necessarily render the warrant invalid.2 The warrant is usually annexed to the assessment roll or a duplicate thereof, and must show distinctly what taxes are to be collected and against whom they are assessed.4 The warrant to collect taxes is not a process, and need not run in the name of 1. Hilbish v. Hower, 58 Pa. St. 93; Pearce v. Torrence, 2 Grant's Cas. (Pa.) 82; Bradford v. Randall, 5 Pick. (Mass.) 495; Nashville v. Pearl, 11 Humph. (Tenn.) 249. And see Wing v. Hall, 47 Vt. 182; Cheshire v. How land, 13 Gray (Mass.) 321. See Pearson v. Canney, 64 Me. 188; Orneville v. Pearson, 61 Me. 552; Machiasport 7. Small, 77 Me. 109; Den v. Craig, 5 Ired. (N. Čar.) 29; Stephens v. Wilkins, 6 Pa. St. 260; May v. Wright, 17 Vt. 97; Van Wagenen v. Brown, 26 N. J. L. 196. In Picket v. Allen, 10 Conn. 146, it was held that where the tax warrant was unaccompanied by a rate bill, the collector had no authority to take the property of any individual. The system of valuation of property, by which a tax is extended, in the collector's return, and the oath or affidavit of the collector required to accompany it, are substantial requirements. People v. Otis, 74 Ill. 384. An execution issued for taxes, should specify for what taxes; otherwise it may be restrained by prohibition. State v. Graham, 2 Hill (S. Car.) 457. 2. Walker v. Miner, 32 Vt. 769; Wells v. Austin, 59 Vt. 157; Bath v. Whitmore, 79 Me. 182; Barnard v. Graves, 13 Met. (Mass.) 85; King v. Whitcomb, I Met. (Mass.) 328; Bailey v. Ackerman, 54 N. H. 527; State v. Charleston, 4 Rich. (S. Car.) 286; Union Trust Co. v. Weber, 96 Ill. 346; Chandler v. Spear, 22 Vt. 388; Spear v. Braintree, 24 Vt. 414; Goodwin v. Perkins, 39 Vt. 598; Wing v. Hall, 47 Vt. 182; Picket v. Allen, 10 Conn. 146; Gove v. Newton, 58 N. H. 359; First Nat. Bank v. Waters, 19 Blatchf. (U.S.) 242; Bird v. Perkins, 33 Mich. 28; Tweed v. Metcalf, 4 Mich. 579; Mussey . White, 3 Me. 290; Corbin v. Hill, 21 Iowa 70; American Tool Co. v. Smith, 32 Hun (N. Y.) 121. In Bellows v. Weeks, 41 Vt. 590, it was held that an error in the date of the warrant, apparent upon its face, does not invalidate it. A collector has been held to be protected, where the assessment roll was not accompanied by the required affidavit of the assessors. Bradley v. Ward, 58 N. Y. 401; Boyd v. Gray, 34 How. Pr. (N. Y.) 322. And see Hart v. Smith, 44 Wis. 213. In Wilcox v. Gladwin, 50 Conn. 77, it was held that the form for a warrant, given in the statute, is not imperative. In Barnard v. Graves, 13 Met. (Mass.) 85, it was held, where the warrant directed the collector to make the distress twelve days after demanding payment, instead of fourteen days as required by statute, that the warrant was not invalidated, if, in making the distress, the warrant was executed according to law. See also King v. Whitcomb, 1 Met. (Mass.) 328. And 3. Black on Tax Titles, § 201. see Donald v. McKinnon, 17 Fla. 746; Pearson v. Canney, 64 Me. 188; Bailey v. Ackerman, 54 Ñ. H. 527; Bradley v. Ward, 58 N. Y. 401. In Barnard v. Graves, 13 Met. (Mass.) 85, it was held that a warrant to collect taxes, issued to a collector, does not authorize him to collect a tax by distress, unless it is accompanied with a tax list; but it is not necessary that the tax list should be annexed to the warrant. But see Picket v. Allen, 10 Conn. 145. Under the Vermont statutes, the warrant for the collection of a state tax need not be attached to the rate bill. Bellows v. Weeks, 41 Vt. 590. But if it is annexed to the rate bill of one year, it will not justify taking property to satisfy the tax of another year. Rowell v. Horton, 57 Vt. 31. 4. Clark v. Bragdon, 37 N. H. 562; State v. Perkins, 24 N. J. L. 409. And see Machiasport v. Small, 77 Me. 109. Where a warrant directs land to be the people.1 Where a warrant is directed to the officer who is to execute it, as such officer, the omission of his name will not invalidate it.2 A warrant directed to the wrong officer is void,3 and neither he, nor the officer to whom it should have been directed, can execute it. Where lists are required to be kept separately for different classes of taxes, or for different political subdivisions, the requirement must be obeyed;5 but one warrant may direct the collection of all the lists.6 The warrant must, either in terms or by implication, authorize the collector to take all the steps necessary to collection, or it is invalid and requires no action on his part." (c) Execution and Delivery. The warrant must be signed by the person, or by a majority of the body issuing it,8 in such a manner sold for a larger amount than the amount of taxes due thereon, the warrant is null and void as to the land in question. Hopper v. Malleson, 16 N. J. Eq. 382. Description. - Particularity of description, sufficient to identify lands and ascertain their locations, is required in the duplicate, warrant, and notices of sale, only when the lien upon land for taxes given by statutes is intended to be enforced. State v. Hawkens, 50 N. J. L. 122; Pfeiffer v. Miles, 48 N. J. L. 450. And see Dickson v. Rouse, 80 Mo. 224. 1. Scarritt v. Chapman, 11 Ill. 443; Curry v. Hinman, in Ill. 420; Haley v. Elliott, 16 Colo. 159; Mussey v. White, 3 Me. 290; Tweed v. Metcalf, 4 Mich. 579; Wisner v. Davenport, 5 Mich. 501; Sprague v. Birchard, i Wis. 457. Compare Nashville v. Pearl, 11 Humph. (Tenn.) 249. 2. Wilson v. Seavey, 38 Vt. 221; Chandler v. Spear, 22 Vt. 388; Byars v. Curry, 75 Ga. 515. And see Picket v. Allen, 10 Conn. 146; First Nat. Bank v. St. Joseph Tp., 46 Mich. 526; Bedgood v. McLain, 89 Ga. 793; Hays v. Drake, 6 Gray (Mass.) 387. But see Butler v. Nevin, SS Ill. 575 In Keith v. Freeman, 43 Ark. 296, it was held that a tax warrant addressed to the sheriff is not invalid, where the sheriff and collector are the same person. 3. Stephens v. Wilkins, 6 Pa. St. 260; Dinsmore v. Westcott, 25 N. J. Eq. 470. And see Butler v. Nevin, 88 Ill. 575. Compare Chandler v. Spear, 22 Vt. 388; Wilson v. Seavey, 38 Vt. 221. 4. Cannell v. Crawford County, 59 Pa. St. 196. Compare Scarry v. Lewis, 133 Ind. 96, as to the validity of the tax, when the tax duplicate was not delivered to the county auditor. 5. Thayer v. Stearns, 1 Pick. (Mass.) 482; People v. Moore, 1 Idaho 662; Case v. Dean, 16 Mich. 12. And see Brown v. Powell, 85 Ga. 603. But see Thatcher v. People, 79 Ill. 597. In Wall v. Trumbull, 16 Mich. 228, it was held that where a tax is placed in a separate column on the tax roll, when it is not required by law to be so placed, the rights of no one can be prejudiced thereby, and no one is entitled to complain. See also Bristol v. Chicago, 22 Ill. 587. 6. Thayer v. Stearns, I Pick. (Mass.) 482. A warrant authorizing a collector to collect several taxes, separately assessed, may be regarded as several warrants to collect the several taxes. Brackett v. Whidden, 3 N. H. 19. 7. Bachelder v. Thompson, 41 Me. 539; State v. Atkinson, 107 N. Car. 317; Frankfort v. White, 41 Me. 537; Pearson v. Canney, 64 Me. 188; Boothbay v. Giles, 68 Me. 161; Boothbay v. Giles, 64 Me. 403; Orneville v. Pearson, 61 Me. 552; Tremont School Dist. v. Clark, 33 Me. 482; Waldron v. Lee, 5 Pick. (Mass.) 328. In Orneville v. Pearson, 61 Me. 552, it was held that a collector of taxes, acting under a warrant, is exonerated from completing the service, if the warrant direct and exempt from distress of property not exempted by statute. It is not necessary that a tax warrant should specifically direct the sales of real estate, in terms. Westhampton v. Searle, 127 Mass. 502; King v. Whitcomb, 1 Met. (Mass.) 328. 8. Belfast Sav. Bank v. Kennebec |