Picket v. Allen

Bissell, J. Upon the trial of this cause, in the court below, a number of questions were made and decided, which are brought up, on this motion, and are now presented for our consideration. It has been contended, that admitting the warrant before — 153 — us to be legal, yet the officer, the plaintiff in error, had no right to do the acts which he has done, under it. It is said, that his powers were at an end, and he had ceased to be a collector, before the levy in question was made. The warrant contains a direction to the collector to settle with the select-men, by the 20th of September : and hence, it has been inferred, that he could do no act under the warrant after that day. This objection has not been much insisted on ; and upon no principle, can it be sustained. This clause in the warrant is merely directory ; and if not complied with, the officer may, perhaps, be responsible ; but it would be a strange consequence, that he therefore ceases to be a collector. Suppose he settles with the select-men, by paying the arrearages due on his rate-bill, from his own pocket; may he not afterwards collect those arrearages ? To deny the collector this power, would be no less novel than unreasonable. Again ; it has been objected, that before the levy of the warrant, the year for which the collector was appointed, had expired ; and that another collector had been appointed and sworn. It is not averred, nor does the objection proceed upon the ground, that another collector of this tax had been appointed; but that another tax had been laid, and a collector of that tax appointed. It is very difficult to see how the powers, conferred upon the plaintiff in error, by the warrant before us, are limited, or in any manner affected, by these facts. He is directed to collect the tax, on the list of 1829. His powers, under the warrant, are without restriction ; and there is no limitation in point of time. It is well settled, that an annual officer, there being no restrictive provision in his appointment, holds his office, until he is superseded, by the appointment of another in his place. McCall v. The Byram Manufacturing Company, 6 Conn. Rep. 428. Spencer v. Champion, 9 Conn. Rep. 536. The plaintiff in error, therefore, was not functus officio, by the appointment of Stewart, unless Steioart was appointed in his place ; that is, to collect that portion of the tax of 1829, which remained uncollected, at the expiration of the year. And this has not been pretended. But the statute has been resorted to, for the purpose of supporting this objection ; — with what propriety, it is not difficult to determine. The 18th section, the one relied upon, is in these words : — 154 — u All constables, chosen to collect the state tax, and all other .collectors of taxes, shall have the same power in any other town, as in their own, to collect the taxes of any person or persons, against whom they have taxes in their rate-bills or lists ; and may, at any time, collect such taxes, after the expiration of the year, for which they are appointed.” Stat. 455. tit. 100. c. 2. * It has been urged, that the words “ such taxes,” refer, exclusively, to those of persons in other toivns; and that as power is given to the collector, to collect these, after the expiration of the year, it necessarily follows, that this power is denied in regard to the taxes of persons living in his own town. I do not think, that any rule of construction requires us to confine the words “ such taxes” to those of non-residents merely : and I am satisfied, that by so confining them, we should do manifest violence to the intention of the legislature. The statute does not profess to give to the collector other, or greater powers, in collecting the taxes of non-residents, than in the collection of those against the inhabitants of his own town. It gives the same power. We are called upon so to construe the statute, as to give to the collector greater powers, over the former class of taxes, than over the latter. I see no reason for doing this. I see no reason why he should have the power, after the expiration of the year, to collect a part of the arreara-ges, due on his rate-bill, and yet have no power to collect the other part. And besides, it is believed, that a long-continued, uniform and practical construction has been given to this section of the statute. By referring to the edition of 1808, it will be perceived, that a section containing provisions similar to the one now under consideration, and adopting nearly the same phraseology, has been in existence ever since the year 1707. And I believe, it has never yet been doubted, that collectors had the power to collect, and that they have uniformly collected, the taxes remaining unpaid, on their rate-bills, after the expiration of the year. This practice, so reasonable in itself, and so long continued and acquiesced in, I do not feel at liberty to disturb, by any forced, or doubtful construction of the statute. It is said, that the return of the collector is insufficient, or if not insufficient, that it shows, that what he did, under the warrant, was illegal. The return, it is said, is insufficient, as it does not appear, — 155 — that he stated, in his notice, on what day of the week the property would be sold; nor does the return show, on what day the property was actually sold. It is not usual, nor in my opinion, is it necessary, that the officer should specify, in his return, the day of the week on which the sale took place. But admitting it to be so, still another, and a satisfactory answer may be given to this branch of the objection ; and that is, that it was not taken in the court below. It was, indeed, objected, and has been strongly insisted upon here, that if the day, on which the property was taken, be excluded, and twenty days be reckoned from that day, as according to all analogy, and the uniform practice, should be done, a reference to the almanac will shew, that the twenty days ended on Sunday ; and that for aught that appears on the return, the officer sold on that day. I do not think it necessary to decide, whether the day, on which the property was taken, ought to be included in the computation of the twenty days. If it be so, the day of sale was on Saturday. If it be excluded, the legal termination of the twenty days was on Monday ; and that was the day of sale. And the presumption is, that the officer knew the law, and did his duty in conformity to it. It is not alleged, that the sale took place on Sunday, but that this is to be inferred from the return. No such inference can legally arise ; and this objection ought not to prevail. It is objected, that the warrant is, on the face of it, void, and affords no justification of the acts done under it. This has been urged on two grounds. First, that the warrant is not properly addressed ; as it does not appear, that the highway district described as No. 2. is in the town of Sherman. It does appear, on the face of the warrant, that the tax in question was laid, by the inhabitants of the town of Sherman. The warrant is there dated ; and is directed to the plaintiff in error, as collector of the highway tax, in district No. 2. Is it made to appear, by fair intendment, that district No. 2. is in the town of Sherman ? Upon this point I entertain no doubt; and it was virtually decided, at this term, in the case of Adam v. The town of Litchfield, 10 Conn. Rep. 127. The statute gives the power to divide towns into highway districts ; and the inhabitants of the town are bound to take notice of such — 156 — subdivisions. When, then, we find a tax laid, by the inhabitants of a town, a warrant there dated, and directed to the collector of a district designated by name, may we not fairly intend the district to be in the town ? And would not any other supposition do violence to all common sense ? A second ground, upon which the warrant is claimed to be void, is, that no rate-bill was annexed. Upon this point, the judgment of the county court was reversed ; and I am satisfied, that the objection would have been fatal, had it been taken in that court. The direction in the warrant, is, to collect of the persons named in the annexed list. No person is named in the warrant itself; and from that alone, it does not appear, that there was any tax against the defendant in error. Unaccompanied by the rate-bill, then, the warrant was a dead letter; and had it been objected to, could not have been received in evidence in the court below. But that course was not taken. The warrant was admitted without objection ; and the court was requested to charge the jury, that it was void, on other grounds; but this was not taken. Upon this point the court was not required to express, nor did it express, any opinion. It was not, therefore, a point in judgment. The only remaining question, is, whether the point may be raised here ; or rather, whether it ought to have been taken in the superior court, upon this bill of exceptions. And here it may be remarked, that it is not the office of a bill of exceptions to bring up the entire case, and to draw the whole matter into examination again ; but to present for revision some point of law, in which either party has been overruled by the court. The exception must have been insisted on ; and no notice can be taken of matters not appearing on the face of the bill of exceptions. Watson v. Watson & al. 10 Conn. Rep. 75. McDonald & al. v. Fisher & al. Kir. 339. Wadsworth v. Sanford, Kir. 456. Graham v. Cammann, 2 Caines 168. Van Gordons. Jackson, 5 Johns. Rep. 467. Frier & al. v. Jackson d. Van Allen, 8 Johns. Rep. 507. Law v. Merrills, 6 Wend. 268. 274. And the rule is founded in the highest reason ; for the objection, if it had been taken in the court below, might have been met and obviated. The point now in question, was not only not made in the court be — 157 — low, but is not presented by the bill of exceptions. How, then, can it, here, be drawn into discussion ? It is, indeed, difficult for me to discover upon what principle, the judgment of the county court can be reversed, when, in my opinion, every point presented for adjudication, and every point ruled by that court, was rightly decided. I am, therefore, of opinion, that the judgment of the county court should have been affirmed ; and that in the judgment of reversal, there is manifest error. The other Judges were of the same opinion, except Peters, J., who was not present. Judgment reversed.