Sanders v. Simmons

Harrison, J.: The real property of the appellee was assessed in 1872, and appraised by the assessor at $13,050. No change in the valuation was made by the county board of equalization, but after it adjourned the value fixed by the appraisement was fraudulently and by forgery altered and raised on the assessment list, as if done by the board, by some unknown person to $34,290. The value thus fraudulently raised was carried to the tax book for that year, and the taxes upon it extended therein, making an excess of $564 over the amount of taxes legally chargeable. Appellee tendered to the appellant, who was the tax collector, the taxes legally clue, but the appellant demanded the full amount charged against the lands, and being about to add the penalty of twenty-five per centum thereto, and to proceed to sell the lands, appellee paid him the amount demanded. This suit, which was commenced on the 25th day of September, 1874, was brought by the appellee to recover said excess of $564. . The appellant demurred to the complaint, on the ground that it showed no cause of action. The court overruled the demurrer, and the plaintiff recovered judgment for the amount claimed. The appellant had nothing to do with the assessment of the property, and was not presumed to know anything about its valuation, except what appeared upon the tax books. The warrant upon the tax book in his hands was in the nature of an execution, and to collect the taxes stated therein, and to pay the same into the county treasury, was a duty he might not disobey. Gantt’s Digest, sec. 5139; Gossett v. Kent, 19 Ark., 602; Black, on Tax Titles, 200. He could not, therefore, be amenable to the appellee for an injury occasioned by the performance of that duty. There is no clearer proposition of law than that an officer, having in his hands a warrant or legal process from competent legal authority, is not bound to look beyond such warrant or process, but will be protected in its execution. State, use, etc., v. Sadler, 1 Eng., 235; State, use, etc., v. Crow, 6 Eng., 642; Wattles v. Marsh, 5 Cow., 176; Ford v. The Treasurer, 1 Nott. & McCord, 234; Whipple v. Kent, 2 Gray, 410; Savacool v. Boughton, 5 Wend., 170; Hill v. Bateman, .2 Strange, 710; 8 Bac. Abr., 690. If the appellant, upon settling with the auditor and the board of supervisors, was not required to account for and pay such illegal excess into the State and county treasuries, and the same .remains in his hands, the appellee could recover it from him; but such is not shown to be the case, and the presumption is the other way. For the fraud practiced against the appellee he must seek relief from the State and the county, to whom the appellant paid the money over. The judgment of the court below is reversed and the cause remanded to it, with instructions to allow the demurrer and to proceed according to law.