Duntley v. Davis — 5 N.Y. St. Rep. 80

Majority

p. 80

Charles Duntley, Appl’t, v. Morton H. Davis, Resp’t.

(Supreme Court, General Term, Third Department,

Filed December, 1886.)

Headnote

1. Taxes — Collector of — De jure by election — Laws 1815, ch., 561, § 24.

Laws 1815, chapter 561, § 24, provides that “ within such time not less than ten days, as the trustees shall allow him for the purpose, the collector, before receiving the first warrant for the collection of money, shall execute a bond to the trustees with one or more sureties, to be approved by a majority of the trustees, in such amount as the district meeting shall have fixed, or if such meeting shall not have fixed the amount therein, such amount as the trustees shall deem reasonable, conditioned for the due and faithful execution- of the duties of his office.” Defendant had been duly elected collector of taxes, and a warrant was placed in his hands as such for the collection of school taxes. At the time of receiving the warrant, he had not been notified to give a bond, nor had the amount thereof been fixed by the school meeting or the trustees, yet notwithstanding he had given no bond, he posted the statutory notices to the tax-payers to make voluntary payment within two weeks, and he personally made demand of payment within the life of the warrant. The plaintiff refused to pay his tax. Upon the expiration of the warrant the trustee renewed it, and the day following the defendant gave his bond to the trustee and again demanded payment of the plaintiff, and upon his refusal levied on his wagon and thereafter sold it. The defendant after giving his bond did not again post the notice giving the tax-payers time for voluntary payment. Held, that having been duly elected collector of taxes the defendant was collector de jure.

2. Same — Bond — Provisions of statute as to time of filing of bond DIRECTORY.

Held, that the time prescribed by the statute, so far as the validity of the bond is concerned is merely directory, since the statute does not negative its validity, if filed after the warrant is delivered.

3. Same — Acts under warrant validated by bond subsequently GIVEN.

The defendant had posted the preliminary notices when his competency was only partial. Held, that upon the filing of his bond all his acts under the warrant before levy and sale were validated.

Pond & Brown, for appellant; M. C. Perry, for respondent.

The warrant for the collection of the school

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taxes was placed in the hands of the defendant, December 11, 1882. He had been duly elected collector of taxes for the school district in October previous. He was therefore collector ele jure. Foot v. Stiles, 57 N. Y., 399 ; Williamson v. McKinney 52 id., 382. He had not at the time he received the warrant been notified to give a bond, nor had the amount thereof been fixed by the school meeting or the trustee, as the statute requires. Ch. 567, § 24, Laws of 1875.

The defendant as collector was not therefore so in default because of such omission to give the bond as to avoid his title to the office, or to make it defeasible. Woodhull v. Bohenblost 4 Hun, 399 .

The section of the statute cited, however, provides that, “ within such time, not less than ten days, as the trustees shall allow him for the purpose, the collector, before receiving the first warrant for the collection of money, shall execute a bond to the trustees with one or more sureties, to be approved by a majority of the trustees, in such amount as the district meeting shall have fixed, or if such meeting shall not have fixed the amount therein, such amount as the trustee shall deem reasonable, conditioned for the due and faithful execution of the duties of his office.” Laws of 1875, chap. 567, § 24, p. 644. Laws of 1864, chap. 555, § 83, p. 1263.

The defendant as collector, notwithstanding he had given no bond, proceeded under the warrant. He posted the statutory notices to the tax-payers to make voluntary payment within two weeks, and he personally made demand of payment of them within the life of the warrant. The tax against 'the plaintiff was $1.12 which he refused to pay. The warrant expired and was duly renewed by the trustee January 24, 1883. On the next day the defendant gave his bond to the trustee, and then again demanded payment of the plaintiff; this was refused, whereupon the defendant levied upon his wagon, and thereafter sold it. The defendant after giving his bond, did not again post the statutory notices giving the tax-payers time for voluntary payment.

It is a condition precedent to the right of the collector to levy and sell, that such notices be posted. Bedell v. Barnes, 17 Hun, 353 . If the notices posted before the bond was given Were a compliance with the statute, or if the statute requiring the bond to be given is merely directory, and when given related back to the receipt of the warrant, then the plaintiff cannot complain.

It was held in Woodhull v. Bohenblost, 4 Hun, 399 , that it was the intention of the legislature that the collector should have no power to execute the warrant until the bond should have been given. That was a case between the trustee and collector. No doubt the people for whose benefit the bond

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is required may rightfully object to bis collecting any taxes , until be has given the bond guaranteeing his fidelity. It will be seen that the section of the statute quoted above authorizes the trustees to fix the time in which the collector shall give the bond, and makes the time end before the collector receives his first warrant.

Here the time fixed by the trustee ended later. But time, so far as the validity of the bond is concerned, is merely directory, since the statute does not negative its validity, if filed'after the warrant is delivered. Gale v. Mead, 2 Den., 160 ; People v. Dawson, 25 N. Y., 399 .

The giving of the bond is mandatory, the time when, directory. When, therefore, the defendant had delivered the bond, his competency to execute the warrant was complete. He had posted the preliminary notices when his competency was only partial.

The case is not without difficulty, and so far as we know, is without precedent; but we think that public policy, in the absence of any evidence that the tax-payer or the public were ■ prejudiced thereby, and inasmuch as abuses do not seem likely to arise or be favored, requires the holding, that upon the filing of his bond all his acts under the warrant, before levy and .sale, were validated.

In the case of Rounds v. Mansfield, 38 Maine, 586, to which we are cited, the statute required the pound keeper before acting as such to give a bond. The bond was the condition precedent to his right to act. Here the statute does not say the giving the bond is a condition precedent to the right of the collector to act or to receive the warrant. But we quite agree that he cannot enforce the warrant until he shall have given his bond. Here he had given it before he enforced the warrant.

The judgment should be affirmed with costs.

Lbabhed, P. J. and Bocees, J., concur.