Baker v. Lee

Action for taking and selling the plaintiff^ wagon. The defendant justified as collector of school taxes, by virtue of a warrant issued by the trustee.

It appeared in evidence that the original warrant issued to the defendant, as collector, had run out in his hands, and on. the 80th of October, 1885, a few days after it expired, it was-renewed by an endorsement upon it made by the trustee, or by his direction, in the following words: “ Renewed for ten days,” On November 3d the trustee wrote upon it, the additional words “ Renewed for 20 days, from the time it run out.” The' collector levied upon the wagon, November 5th, and sold it on the 12th. The county judge was of the opinion that as the sale was made after the ten days had expired, it was not authorized by the first renewal, and that the collector was not protected by-the second renewal as that was void for want of the written approval of the Supervisor endorsed thereon, as required by L. 1864, p. 1265, § 87, am’d by L. 1867, vol. 1, p. 975, § 22. On that ground alone he reversed the judgment of the justice.

We are inclined to think the contention is well founded. The statute simply gives the power to renew; it does not prescribe the form of renewal, nor authorize the trustee to say for what time the renewal shall operate. (L. 1864. p. 1264, §. 86 am’d L. 1867, vol. 1, p. 974, § 21.) It seems that the renewal of the warrant and its delivery to the collector have the effect of making it a new process, of the same force and effect, in all respects, as the original warant.

In Folsom v. Streeter, ( 24 Wend., 266 ,) Chief Justice Nelson said, “ The renewal is in fact but a reissuing of the process, and I perceive no reason against regarding it as an original issuing.”

In Smith v. Randall, ( 8 Hill, 495 ,) it was said by Bronson, J., •“ The renewal of the warrant made it a new process for all the purposes of collecting the taxes which then remained unpaid. .By renewing ‘the within warrant,’ the defendant said, in •effect to the collector, ‘ we command you, as within you are •commanded,’ to collect, etc. It is the same thing substantially, •as though the original warrant had been recited in the renewal.” In the same case he criticised and declined to concur in a dictum that fell from Mr. Justice Sutherland in Preston v. Leavitt, ( 6 Wend., 663 ,) to the effect that the renewal of a justice’s exe-¡cutiori “does not per se constitute a new execution.”

The same doctrine was applied in Gale v. Mead, ( 4 Hill, 109 ,) under very peculiar circumstances. The taxable inhabitants of ¡a school district voted to lay a tax for building a schoolhouse. Thereupon the trustees made out a tax list and warrant, but ¡before the same were delivered to the collector, the vote for the tax was repealed at a subsequent district meeting. At a still later meeting the repealing vote was repealed, and thereupon the trustees renewed the warrant previously made out, and then, 'for the first timé, delivered it to the collector. It was held rto be' valid. The court said, “As the warrant had never been .issued before, there could not strictly be a renewal of it, within the meaning of the statute. Still, the renewal under the hands and seals of the trustees may perháps be regarded as making .it new process of that date,” citing Smith v. Randall, (supra.

In Seaman v. Benson, ( 4 Barb., 444 ,) Gray, J., said. “ The renewal, of .a warrant is the renewal of the command contained in

Parker v. Brown, ( 17 Barb., 145 ,) also was a case in which the original warrant was not issued to the collector until after its renewal. Allen, J., said; “The warrant not having, been issued for collection prior to the renewal of November 3, 1851, it became by such renewal and delivery to the defendant for collection a valid and effectual process, for all purposes, as of that date. “ (Citing Gale v. Mead, and Smith v. Randall, supra.) “ The rights of theplaintiff and the powers and duties of the defendant, were the same under such process that they would have been had the warrant been made out and dated as an original process on the day of its delivery to the defendant.”

And in Thomas v. Clapp, ( 20 Barb., 165 ,) it was held that the renewal of a warrant for the collection of a school tax is equivalent to issuing a new warrant.

It is true that in none of the cases cited was the endorsement of renewal special or limited in any respect. But it is clear, in this case, that the trustee intended to renew the warrant and caused the endorsement to be made for that purpose, and it is equally clear, from the authorities cited, that if the renewal was effectual for any purpose, it was equivalent to the issuing of a new warrant. The words of limitation were either mere surplusage, or they had the effect to vitiate the renewal and render it void. To adopt the latter construction would be going counter to the manifest intention expressed by the endorsement, and would be applying a harsh and severe rule to the proceedings of school district officers, had in good faith. As was said by Nelson, Ch. J., in Folsom v. Streeter, (supra.) “ The system has become somewhat complicated, the duties of these officers often difficult, and involving considerable responsibility. Their conduct should always be viewed with indulgence, and is entitled to the most charitable intendments of the law.” We think the words of limitation are to be treated as surplusage and that the renewal is to be regarded as the issuing of a new warrant. Thus viewed, it was a protection to the collector in making the levy and the sale.

Upon all the other points discussed by counsel we concur in the views expressed by the county judge in his opinion.

The result is, that the judgment of the county court should,, be reversed and that of the justice affirmed.

Barker, Haight and Bradley., J.J., concur.

So ordered.