McKay v. Batchellor

Hallett, O. J. Plaintiff in error, as secretary of school district No. 3, in Arapahoe county, distrained the wagon in controversy to satisfy a tax levied against the defendant in error in that district, pursuant to the statute of 1870. 8 Sess. 131. To a plea setting up these facts defendant in error replied de injuria, and that the goods were not taken within the district. It appears that after the tax was levied and before the wagon was distrained the district was divided by the county superintendent of schools, and that part in which defendant in error resides was set off into a district by itself. By the 11th section of the act above mentioned, power is conferred upon the county superintendent to divide the [594] county into school districts, and to alter and change the boundaries of districts from time to time as the convenience of the inhabitants may require, and this power having been exercised, it appears to be impossible to say that the original boundaries of the district maybe maintained for the purpose of collecting a tax levied before the change was made. The 31st section confers authority to collect the tax by distress and sale of goods and chattels found within the district, and the secretary has no other authority in that behalf. Although the tax may have been regularly assessed, the secretary has no authority to go out of his district to enforce payment of it. The rule may be otherwise as to a tax against real estate, which is a lien upon the property from the date of the levy. Moss v. Shear, 25 Cal. 38. As to personal property, however, there can be no lien until seizure, unless it is given by statute. 2 Dill. Corp., § 659. The tax assessed generally against defendant in error did not become a lien upon his personal property, and no right was acquired by the assessment, merely, to seize the wagon wherever it should be found. We have no difficulty in saying that the seizure without the district was unauthorized, but it is not so clear that the question may be raised in this form of action. The statute relating to replevin (R. S. 533) plainly prohibits this remedy in every case where property has been seized for a tax, assessment or fine levied under a law of the Territory. Styles v. Griffith, 3 Yates, 82; People v. Albany, 7 Wend. 484; Mt. Carbon Co. v. Andrews, 53 Ill. 176. That the principle extends to the seizure as well as the assessment, and equally forbids all questions respecting the validity and regularity of the warrant and of the assessment, we freely concede, but obviously there must be some color of authority for making the seizure. For instance, it has been held that where the warrant was issued without jurisdiction, and where the statute under which the assessment was made, was unconstitutional, replevin would lie. Morford v. Unger, 8 Iowa, 82; Wright v. Briggs, 2 Hill, 77; Hudler v. Golden, 36 N. Y. 446. If this were not the rule, a defendant in replevin [595] might always defeat the action by pretending that the property had been taken to satisfy a tax. An officer without his bailiwick is utterly without authority, and cannot, therefore, justify under process. Although professing to act in virtue of the assessment, it cannot be truly said that plaintiff in error, when without his district, could seize property under the authority of the law, and, therefore, his plea was well answered by the replication that the property was taken without the district. Perhaps this replication amounts to no more than the other, for plaintiff in error could not be required to show more than that the property was taken under color of authority for the purpose of collecting a tax, and if the seizure had been made within the district, this result would have been accomplished. But the evidence was clear to the point that the property was in fact taken without the district, as established at the time of the taking, and this, we think, is enough to support the judgment of the court. The judgment is affirmed, with costs. Affirmed.