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ed in such warrants, in the same manner that collectors of towns are authorized to collect town and county taxes. This is specifically pointed out by the following extracts from the 13th chapter of the first volume of the Revised Statutes, (pages 397, 398.)
"§ 1. Every collector, upon receiving the tax list and warrant, shall proceed to collect the taxes therein mentioned, and for that purpose shall call at least once on the person taxed, or at the place of his usual residence, if in the town or ward for which such collector has been chosen, and shall demand payment of the taxes charged to him on his property.
"82. In case any person shall refuse or neglect to pay the tax imposed on him, the collector shall levy the same by distress and sale of the goods and chattels of the person who ought to pay the same, or of any goods and chattels in his possession, wheresoever the same may be found within the district of the collector; and no claim of property to be made thereto by any other person shall be available to prevent a sale.
"§ 3. The collector shall give public notice of the time and place of sale, and of the property to be sold, at least six days previous to the sale, by advertisements to be posted upia at least three public places in the town where such sale shall be made. The sale shall be by public auction.
"§ 4. If the property distrained shall be sold for more than the amount of the tax, the surplus shall be returned to the person in whose possession such property was when the distress was made, if no claim be made to such surplus by any other person. If any other person shall claim such surplus on the ground that the property sold belonged to him, and such claim be admitted by the person for whose tax the same was distrained, the surplus shall be paid to such owner; but if such claim be contested by
surplus moneys shall be paid over by the collector to the supervisor of the town, who shall retain the same until the rights of the parties shall be determined by due course of law."
“No replevin shall lie for any property, taken by virtue of any warrant for the collection of any tax, assessment or fine, in pursuance of any statute of this state."-2d R. S. page 522, sec. 4.
These provisions must, however, be subject to the action of congress, on a subject which by the Constitution is within its jurisdiction. The Constitution in express terms gives to congress the power" to provide for organizing, arming and disciplining the militia.”
By the act of congress of May 3, 1792, vol. 2, Laws of the U. S. 298,) every citizen enrolled in the militia is required to provide himself with the following accoutrements, viz: “a good musket or firelock, a sufficient bayonet and belt, two spare flints and a knapsack, a pouch with a box therein, to contain not less than twenty-four caruridges suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot pouch and pow. der horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder :' and the commissioned officers are required to be armed with a sword or hanger, or espontoon ; and it is declared that “every citizen so enrolled and providing himself with the arms, ammunition and accoutrements required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales for debt or for the payment of taxes."
By the laws of this state (chap. 6, part 3, title 5, $ 22, vol. 2, R. S.) the' “ arms and accoutrements required by law to be kept by any person,” as well as a variety of other articles therein specified, are exempt from execution but not from distress from taxes. The only exemption, therefore, from the operation of a collector's warrant on a tax list or rate-bill, arises under the act of congress before quoted; and this can only be extended to the arms, ammunition and accoutrements therein specified.
The collector or other officer who executes process, has peculiar protection. He is protected, although the court or officer issuing such process, have not, in fact, jurisdiction of the case; if on the face of the process it appears that such court or officer had jurisdiction of the subject matter, and nothing appears in such process to apprise the officer but that there was jurisdiction of the person of the party affected by the process. Savacool vs. Boughton, 5 Wendell's Reports, 170.
When a tax is assessed for any distinct purpose, the col. lector is entitled to five per cent on the whole amount collected and paid over by him to the trustees, or received by the latter. He is likewise entitled to five per cent on all sums collected by him or by the trustees on rate-bills; but not on sums paid to or collected by the teacher, prior to the delivery of the rate-bill to the collector. When payments are voluntarily made to the teacher by the patrons of the school, the persons thus paying, save the five per cent for collector's fees, as the law recognizes such payments, and authorizes the trustees to make out a warrant against such only as are liable for the residue of the teachers wages.-Com. School Dec. 54.
Where trustees receive payments either on tax lists or rate bills, they are regarded as receiving the same as the agents of the collector; and the latter is entitled to his percentage on the amount so received, and may legally collect it by virtue of his warrant. The collector is also en. titled to his percentage on the amount paid by the trustees, potwithstanding no actual exchange of funds is made between the latter and the former.-Per YOUNG, Superintendent 1843.
A teacher, if otherwise eligible, may be collector; but he cannot charge'a percentage on voluntary payments of his own wages.- Id.
Collectors are allowed the usual fees of distress and sale, in addition to their percentage, where they take and sell the property of delinquents.—Com. School Dec. 111.
Where a collector levies upon and sells property for the payment of a tax list or rate-bill, and the owner of the property refuses to receive the excess beyond an amount sufficient to satisfy the warrant, the collector must retain the amount in his own hands, and rely upon his plea of tender.-Id. 217.
In the execution of his warrant, the collector should aim to take property amply sufficient to satisfy the amount he is required to collect, and no more. He is not bound to take any particular article of property which may be offered: but if at the request of the owner, he were to take and sell property worth ten times the amount required to be raised, such request would constitute a valid answer to the charge of making an excessive distress.--Id. 219.
Trustees may require a bond of the collector, whenever any warrant is delivered to him for collection ;, and although such bond is conditional generally, for the due and faithful execution of the duties of his office, it may be questionable whether it is binding, excepting for the specific purpose for which it is given; that is, to secure the execution of the warrant about to be received by him. It is therefore clearly proper to exact a bond, whenever a war. rant is to be delivered to him, provided the sum to be collected is of such an amount as to render it of any conse. quence : and if, through the omission of the trustees to require it, any moneys should be lost, they would be whol. ly inexcusable for failing to take a precaution which the law has provided for the express purpose of affording entire security to the district.-Id. 240.
If the collector gives a bond, and after collecting part of a tax resigns, he is clearly liable, under Ø 109, of the school act, for the whole amount of moneys which might have been collected within the time limited in the war. rant delivered to him for their collection, unless those moneys are thereafter collected ; especially where there has been any neglect on his part.-Id. 241.
Where, by the neglect of a collector, moneys which might have been collected by him within the time limited, are lost to the district, he is liable for the amount, whether he has given a bond to the trustees or not. The bond is an additional security ; but if it is not required of him, he is not released from any obligation which the law imposes on him.--Id. 308.
So, where a warrant runs out in his hands, he is answerable for any loss arising from his neglect, notwithstanding such warrant may have been afterwards renewed and delivered to his successor.— Id.
A trustee of a school district cannot hold the office of collector. The same objection is not applicable to the district clerk; although, as the law has created separate offices, it is better to carry out its intention strictly, by conferring them on different individuals.-Id. 142.
If the warrant annexed to a rate-bill, or tax list, is signed by a majority of the trustees, it is sufficient for the protection of the collector, although the third trustes was mont, in fast, present, or consulted.-Id. 828.
Where a warrant is renewed by the trustees, the col. lector in office at the time of such renewal, must execute it.-Id. 47.
Where a warrant is issued for the collection of a tax which has not been legally assessed, according to the last assessment roll of the town, or otherwise, or where the trustees have included in the tax list persons not liable to be so included, such warrant is a protection to the collector, notwithstanding the trustees might be answerable in trespass.-Id. 282.
A collector cannot legally sell property after the expiration of his warrant, unless such warrant is renewed, notwithstanding a previous levy.--Id. 286.
Where the collector, in the execution of a warrant, receives money current at the time of its receipt, but which subsequently becomes depreciated or valueless, before payment to the trustees, the district, and not the collector, must lose the amount.- Per SPENCER, Sup't, 1841.
The collector can pay over money collected by him only to the trustees, or on their order.- Per Dix, Sup't, 1338.
Trustees have no power to indemnify a collector for improperly selling property under their warrant. Id.
The representatives of a deceased person are not entitled to any delay in the payment of a rate-bill, or tax list, but are bound to pay on demand : and on refusal or neglect, the collector may proceed to sell any property found on the premises. By Ø 27, sub. 2, 2 R. S. 28, taxes of all kinds have preference to any other demand.-Per SPENCER, Sup't, 1840.
Where a collector levies upon property out of his district, he should put up notices of the sale of such property, as well in the district where the sale is to take place as in that of his residence.-Per YOUNG, Sup't, 1842.