Missouri ex rel. Hazard v. Spiva

Thayer, J., (after stating the fads.) It will be observed that the question whether the demand made on Hazard’s agent was sufficient to authorize a levy is common to both cases, and will be first noticed. That a demand is necessary prior to a levy, and that a levy made without a precedent demand is a wrongful act, under the language of the statute, admits of little doubt. The provisions of thestatute, (section 7608,) that “no seizure *■ * * for taxes shall be made until after the first day of October of each year,” and that “no such seizure * * * shall be made until the collector has made demand for the payment of the tax, either in person or by deputy, to the party liable to pay the same, or by leaving a written or printed notice at his place of abode for that [439] purpose, with some member of the iamily over 15 years of age,” are each mandatory provisions, and arc not merely directory. 1^’ a .collector neglects to perform a duty which the law expressly devolves on him as a condition precedent to making a levy, I can conceive of no good reason why he should not be held liable for whatever damage is occasioned by his neglect of official duty. The legislature has also prescribed the precise form of demand. It must be a demand made in person, by the collector or his deputy, on the person liable for the tax, or by notice left at his place of abode with some member of his family over 15 years of age; and I know of no rule of law that would authorize the court to say that some other form of demand, such as a demand on the plaintiff’s general agent, or business manager, will suffice. This provision also seems to be mandatory. If the statute merely required a demand to be made, without prescribing the form of demand, or the person upon whom it was to be made, the demand alleged in the plea might, be adjudged sufficient. King v. Whitcomb, 1 Metc. 328. The general rule is that all provisions of law regulating the assessment of taxes, and proceedings for the seizure and distraint of property for the payment of taxes, should be strictly pursued, and the rule has been frequently approved in this state. Town of Warrensburg v. Miller, 77 Mo. 59; Railroad Co. v. Apperson, 97 Mo. 306, 10 S. W. Rep. 478, —and cases cited. The act of April 28, 1877, (Laws 1877, p. 381,) appears to have been the first act adopted in this state permitting personal property to be seized for a tax-bill against realty, and was in that respect a radical change in the law regulating the collection of taxes. It may be that the legislature failed, through oversight, to provide a feasible method of making a demand for the payment of taxes, of non-resident tax-payers. On the other hand, it might with as much reason be said that the legislature intended to leave taxes assessed against non-residents, to be collected by suit brought in the ordinary form, when a personal demand was not practicable, inasmuch as taxes assessed against non-residents are usually upon real estate, and are well secured by a lien upon the realty. Speculations of this sort, however, do not aid materially in reaching a decision, as courts are now authorized to make laws, orto remedy defects in legislative enactments, when such defects exist. The statute does not, in terms or by necessary intendment, authorize a levy, unless there has been a personal demand on the tax-payer, or a notice left at his place of abode with a member of his family. I conclude, therefore, that a demand made in any other form will not suffice. Vide State v. Sargent, 12 Mo. App. 237. 2. In view of the fact that in this state a plaintiff in replevin, in order to obtain the writ, must make oath that the property sought to be recovered “has not been seized under any process, execution, or attachment against the property of the plaintiff,” (Rev. St. Mo. 1889, § 7479,) a question arises whether replevin is, under any circumstances, a proper remedy for a tax-payer whose property, as it is claimed, has been wrongfully seized under a tax-bill issued against him? This is a question of local law, and, if the supreme court of the state had heretofore [440] considered the question, its decision would be binding on this court. I do not find, however, that the question last mentioned has ever been considered and determined by the state courts. It was not considered in Mowrer v. Helferstine, 80 Mo. 23, or in Henry v. Bell, 75 Mo. 195, or in Rubey v. Shain, 54 Mo. 207, to which my attention was particularly directed on the hearing of the demurrers. The point discussed and de-termified in those cases, was whether the assessments involved were so far regular as to protect the collector from all liability for seizures made thereunder. Whether replevin is a proper remedy to test the validity of an assessment, or the validity of a’seizure made under a tax-bill, is a question not authoritatively determined by either of those cases, or by any of the cases cited by counsel. Regarding the question as open for consideration, I have reached the conclusion that in this state replevin is not a proper remedy, when the person invoking such remedy is himself the person against whom the tax-bill issued under which the seizure complained of was made. The tax-book under which collectors are authorized to act is required to be authenticated by the seal of the county court and the signature of its clerk before it is delivered to the collector. The revenue law gives to the book so authenticated the force and effect of an execution, by providing in substance, that after the collector receives it and has made demand, he may thereunder distrain and sell property in like manner and with like effect as'under a writ of execution. In my judgment, a book of that description, authenticated by the seal of a court, and under which a public officer is authorized by statute to seize and sell property, may be aptly termed “process,” with in the meaning of the replevin act, whether regard be had to the technical meaning of the word or its ordinary use. I know of no reason why a strict construction should be placed on the word “process,” as-used in the replevin act, so that it will only comprehend writs issued by courts of law or equity, in the exercise of their ordinary jurisdiction. Looking at the question from the stand-point of public policy, it appears to be quite as important that a tax-payer should not be allowed to replevy property seized for taxes, as that a defendant in an execution or attachment should be denied that remedy. If tax-payers were allowed to replevy property distrained for taxes, it is obvious that the collection of the public revenues might at any time and under numerous pretenses, be seriously impeded. Nor is it necessary for the protection of the tax-payer that a remedy by writ of replevin should be accorded to him. The law is well settled in this state that a taxpayer may enjoin the collection of an illegal tax. Rubey v. Shain, supra; State v. Saline Co., 51 Mo. 352; Ranney v. Bader, 67 Mo. 479; Mowrer v. Helferstine, 80 Mo. 27. And if as, in the case at bar. the seizure is claimed to be unlawful, not by reason of any defect in the assessment, but because of some neglect of duty on the part of the collector, it seems clear that the tax-payer might obtain adequate relief for such wrong, by a suit against the collector for damages, if the neglect of duty would, under ordinary circumstances and but for the replevin act, enable the tax-payer to maintain replevin. [441] It was urged by plaintiff’s counsel that the failure of the collector to make a proper demand prior to the levy, entitles the plaintiff to maintain replevin, although it bo conceded that a tax-book, duly authenticated as provided by law, is legal process. The court, however, is not able to concur iu that view. The test of plaintiff’s right to maintain replevin is whether the property in controversy was actually held by the defendant at the time suit was brought under process issued against the plaintiff. If it was, and the plea in this case so avers, he cannot maintain replevin, but must resort to some other remedy for the injury sustained. The statute, in general terms, denies the right to replevin property that lias been seized, and is held by an officer, under any process, execution, or attachment against the plaintiff. There are no exceptions to the rule mentioned, and no provisions of the statute appear to warrant the inference that replevin may he resorted to, if the mode of serving the process pursued by the officer was faulty or irregular. The construction contended for would practically create an important exception to the rule, not found in the statute, and one tiiat would impair its efficacy, it would, in its practical operation, enable a litigant, against whom process for the collection of a debt has been issued, to test, by means of a replevin suit, the regularity of every act done by a ministerial officer in the execution of such process. This, in my judgment, was a result not contemplated by the legislature. On the contrary, its purpose seems to have been to withhold from a person whose property lias been seized under process for the collection of a debt, the power to interfere with the execution of such process by a writ of replevin. My conclusion is that the demurrer to the pica in the suit for damages should be sustained, but that the plea in the replevin suit states a good defense, and that the demurrer should bo overruled, for the reason that it shows that the property, when the writ of replevin was sued out, was held under legal process issued against the plaintiff.