S,'1'4TE OF
"'. B]?IVA.
435
case. Even we're there 'an allegation of a verbalundetstanding or agree;' ment between counsel in the ,matter, the court could:nClt notice it. The stipulations or agreementsofcoul1sel must be in writing. Nor would the court undertake, in a taxation of costs, to enforce an agreement, written or verbal, between attorneys, unless the cost of printing can be taxed against the losing party, on whom the decree has fixed the,costs. We have no rule on the subject. There being no rule, and the fee-bill (section 823, Rev. St.)1 being silent, this charge cannot be tax,ed. Spaulding v. Tucker, 4 Fish. Pat. Cas. 6.33. Let this item of printing be eliminated, and in other respects the taxation be confirmed.
STA.TE OF MJSSOURI
reI.
HAZARD "'. SPIVA
et al.
HAZARD fl. SPIVA..
(Circuit Oourt, E. D. M1.B80'UN, E. D.)
1.
TAXATION-COLLECTION-DEMAND.
Under Rev. St. Mo. '18811. 5 76Oll, whioh provides that nO seizure of personal property for taxes on real estate '!shall be made until the collector has made demand for the paYJIlent 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 plnee of abode * * * with some member of the family, " a deliJand ,upon an agent in charge of the taxed property.is insufficient to justify a seizure, though the owner is a non-resident, and it is Impossible to make demand on him in either of the statutory modes. '
A tax-book' authenticated by the seal of, the court, under which a tax collector is autho,,:,izedby statute to s,eize and sell property to enforce the collection of taxes, ',is process, 'witl1in the meaning of Rev. St. Mo. 1889. i4711, which limits the right to bring anv.ction of replevin to cases whlilre the property "has not been seized under ",ny execution, or attachment against the property of the plainttif." 8. Sum. ' ,Where property is held by the Collector nnder the authority of such book, the fact that he seized such property without first making proper demand for the taxes the owner against whom the tax wlislevied to maintain replevin the,refor. ,
S.
RBPLEVIlf....:.!'ROOEBS-TAU.ION.,
J\;tLaw.On demurrer to plea. The first of these suits was an action on the officral bond of H. S. Spiva, as collector of the revenue for Madison county, Mo., to recover damages for an unlawful levy made September 15, 1889, on certain personal property of Hazard's, to enforce payment of certain taxe,s assessed against Hazard estate for the year 1888. The laws Missouri provide, in substance,that no levy shall be made under a tax-bill until a demand for the payment of the same shall have been made by the collector or his deputy, of the party liable therefor, or by leaving a written or,printeddemand at his place of abode with some member of the familyoyer 15 years of age. Rev. St. Mo. 1889, § 7608. The complaint is that the levy' was made without such demand, and was
or
,JThissectiou' provides the fees which shall be taxableaa COlts.
,
FltDERAL REPORTER,vol.
42.
therefore unlawFul. THe defendants interposed a special plea to effect that Hazard waSil non-resident of the state, owning extensive lead mines,smelting furnaces, machinery, stores, etc., in Madison county. and that such property is, and for years has been, in actual charge and control of an agent of Hazard's, and that a demand for the payment of the tax-bill, such as the statute requires, was made of such agent, it befng inlpossible to make a demand on Hazard himself in either of the ways pointed out by the statute. To such plea there was a demurrer, Theseoond suit (No. 3,104) was an ordinary action of replevin brought . by Hazard to, recover possession of 2.000 pigs of lead, which were levied upon by the collector on January 20, 1890, for taxes of 1889 assessed against Hazard. It is claimed that such levy was unlawful for want of a proper statutory demand, and there was a plea as in the first suit that a sufficient demand was made on Hazard's agent. To this plea there was a demurrer. Lee & Ellis and a'eorge R. Lockwood, for plaintiff. The substantial questions in this case are; (1) Can a collector of taxes in this state, section 6754, Amended Acts 1883, p. 143, seize and sell peragainst jihe owner, without in person or by sonal property to satisfy deputy having made a demand of the owner for the payment of the tax, or leaving a written or printed notice for that p1lrpose, at the place of abode of of bis' family over the age of 15 years? the owner,w'ith If said section. is made, will replevin lie therefore;" UHit is" is ittHOIized undei' any process, execution, or attachment against the property of such owner" plaintiff in replevin? 1. The answerto the first qllestion must depend chiefly upon the language of the as the exact point raised has never been decided, seY far as we know, by tAe qourts of this,stllte. Tnrning to the statute, (forrnel'ly § 6754, Rev. st. ·1879,) we find that the conditions precedent to a seizure of property by the collector are a detllimd of the person liable t<> pay the tax, or by lea ving qis place of abode with some member of his family over 15 years of age. It is appal'lintfrom the answer demiu'I'ed to that the tax was not persollllUydemanded of Mr· .Hazard by thecollectOl,' or his deputy, nor was notice to pay the same left at his place of abode with II mem bel' of the family over the age of 15 years. To which of these demands is that up in the answpr eqUivalent; and, if eqUivalent to either, why that, rather than the alternative? where is the authority for saying that there can be \lny demand eqllival,ent to those prescribed by,the statute? If the demand setup is said to be equivalent to a personal demand, we say that the statute prescribes a method of demanding the tax when a personal demand cannot be, made, and the demand alleged is not that prescribed in such case. On the other, band, if Lhe,demandset up is said to be equivalent to notice left with a member of thefamily. we say that the statute does not provide for any equivalent to such notice, except perspnal demand. If a personal demand 'for taxes is not made, then:notice may be served as a summons may be, and, ifthe demand set up would not 'be a good retu1'll of service of a summons, it is not, good as a demand, under section 6754; and who would think of pretending that the facts set up in. the defense l1emllrredto would be a good retu1'll by a sheriff of s6rviclJ of ,a summons·.. seizure and saleof.a person's property, with,out a' tdalor judicial d,etermination of the liability of the owner for the debt for, Which his 'tjl'tJpe'rty is taken, is certain'ly /l' high governmental power, ant' therefore there must be a distinct anthority of law for the seizure; and every IDltst ,be 'cli>mpHed witb. condition
STATE' OF MISSOURI
v.
SPIVA.
437··
Railway 00. v. Apperson,; 9ZMo.300, 10 S. W. Rep. ,478, recognizes and strictly enforces this doctrine, citing as authority therefor·: Bla<·kw. TaxTitles, (2d Ed.) 255; Dill. Mun. Corp. (2d Ed.) 610; Cooley, Tax'n, (2<1 Ed.) 324, 348, and many Missouri decisions. In Town of Warnmsburg v. Miller, 77 Mo. 56, the doctrine now unqer conside.ration is rigidly applied, and the court says, (page 60,) citing Cooley: .. Whatever the statute provides for in this regard the collector must have, and he is a trespasser if he pro· ceeds to compulsory action without it." See, also, Howard v. Heck, 88 Mo. 456. But this question is almost put beyond argument by the decision of the St. Loui!! court of appeals in state v. Sargent, 12 Mo. App. 237, where the com't" in spea,king of section 6754, says: "Nor does the 1l;l\V allow the collector ,personalty for taxes without notice to the party liable, given in person.. or by leaving a copy with his family at his residence,whicp in case of nou.i:ellidents seems impossible." This declaration RY the,court of appeals, the of tbestatute, and the principles of law governing the exercise of the authority asserted by defeqdallt, as established by the leaQing, text-writers and ' the decisions ,of the, supreme court ot Missouri, make it:clpar, wethink, that deft'ndau.t WIIS a trespasser wben.lleseized the property involved in this suit. 2. TlJe.(lext question to be considered is whether this property was seized under ahy process, execution, or attachment against property of the plain- ' in other words, is the tax-bo()k aproceas against the property of those whose ,prq.perty is list!ld? .· The ·constitution of in section 38 of arti- :: cle6, "Judicial Department," provides writs and process shall rlln in the name of the state of Missouri; and the statutes (section 4037" lkv St. 1879) say that all writs and process issued out of any court of record, shaH run in the name of the .state of Missouri, and shall be tested by the .cI,..rk, and sealed with the seal of such court; and section ,4038 provides that all writs and process issued by any. judge or justice of the peace, or other o.m-,' cer allthorized· to. issue the same, !:'lhall run in the name of the state of souri. and be.subscribed by the officer isslling the same. Bouvier speaks of "process" as "the method taken bylaw to compel a compliance with the ol'igina! writ or commands of court.'l Wharton's Law Lexicon, tit. "Process," llays:"It is largely taken for all the proceedings in any lIctionor prosecution, real or personal, civil or criminal, from the beginning to the end." Abbott's Dictionary says of "process" that it is "strictly the mandate of the court to the officer, commanding him to do certain things.or perform tarn servi,ceswithin his official cognizance." Tomlin's Law Dictionary says .of "process"-"First. It is largely taken for all the proceedings in any acbeginning to tion or prosecution, real or personal, civil or criminal, from the end. Secondly. That is termed the process by which a man is called into Rny temporal court. because it is the beginning or principal part thereof, by which the rest is directed; or, taken strictly, it is the proceeding after the .original. before the jUdgment." Anderson's Dictionary of the Law says of "process:" "Something issuing out of a court or from a judge; a writ of any nature." "At common law, the means of compelling the defendant to appear in court." By Code Iowa, 1851, (or section 4455, Hev. St. 1E88,) the petition in replevin must state that the property replevied was not taken on the .order or judgment of a court, nor on execution or attachment; but in Morford v. Unge1', (11:l59,)8 Iowa, 82, replevin was maintained for property taken "by virtue of a precep,t or warrant" affixed to a tax-Jist. In Gilmer v. Bird, 15 Fla. 410, it was decided that a notice given, under the' Code, by an attorney, ,of the institution of a suit, in the form oC a summons, but not issuing out of ;3 cOllrt, was not process, within the meaning of that prOVision of the constitution of }<'iorit.la which provided that the style cof all process shall be "The State of :Florilia. "citing Baron CoMYN, who says: ". Process,' in a large RCthe aftel' the original, andbefQre. the
438t,
FEDERAL'RKt>ORTER,
vol. 42,"
issue oilt 01' any court to and all proceSs ont of the ki1'lg's:cOUI't's ooght-to; be in the In this case it'was also '1 in the provision of thecollstitntion just re· decided\'that tblli term fei'redto,ll.rid chi! toot one whichsaidtlt.Wno person should be deprived of life, processdf law, did not mean the same thing, liberty, and that, -therefore, notice by the att'ol'uey, as given, was "dne process of law;" thougo' the notice waS not "prol!ess." In OUr1'Yv. Hinman, 11 Ill, 420; itw8sbeld that "the copy of the certified to'aeo1lector, on wbichlands ,are-authorized to be sold for taxes, is not ·process,' within the meariin'gofthe.eventh section·(){ thefoilrth article of the constitution, and nelld: nut' rnnHlthe llame of' TWepoople.''' , On page 425,"the'court says: of which may make 8 copy of "Whether the coart or the the order indispensable toa valla sale;'c1iooses to designate it by the name of the meariihg of the consti·process,' it is not thereby made" tution. ',' Either roi'gbt; witMbe ssme,}>ropriety, bavecalled them by any other still they would be, bn't:'copieltofthe order, decree,or judgment. The meaning of this constitutwndoes'. not'cbange with It name;'" Speaking' oBheorder issued in tbiscalre. the page 426. further says:, "The truth is, that it has, Dot'Oneslogle attr'ibute of an execution at law, or of any othl'r pr()ceeding or process W'hichUsed to run in the name of the king. and it would never have Occurred 'to any lawyer that it could be process, if the had notsocalletl it." BlItfor this leKislativechdstening. he would almost 88 soon have thought of callingit.8n indictment. * *' With equal,if Bot more, propriety,lnightW that tbeassessment list With Which the coIll'ctor'1s'farnished under'the thirt,r-first section is process, arid shoUld 'have this''ConsUtutional' 'hrad to make it valid; for under it he is Dot only reqUired to saIl property,bitt be',must levy upon and seize it." From the language of onr cOlllltltution, th& place where it is fonnd,and the interpretations givE>D suchlanguagebyflieconrts.'from thestlltutes, and from the definitions oHhe that word, as llsed in the constitntion and statutes. meansa. jutlieial writ, containing It command in the name of the ., 'lIowtlul tax-book, gi ven to the collector, can bettirtnredinto a writ of this ,kind;' it is imptissible tu conceive, as it has nut a ilingle feature :rese!llbling those of. process. if the cOlllmon-law or constituth!,l1gh property sPized untionalmeaning is'given to denection 6754is-taken:by"d;ue proeess of law," it is not seized under process; or attachment:' andfp' this case, it is cleal' that the defendant was Ruilty of' a trespass in seizing plafntiff's property, and the demuner to kisanswer shOuld be sustained. ' . " . bring' the:t>artY tlJ'anSWer or for
jlidgm&ntrbut,generally it
*
Gearge D.
and R., , ..
for defendant.
quest jon whether the
!.tJ.iAYER,J.,';'(f1jt(Jf'
to.a.uthorize a levy is:common.tQ,botp cases, and will be first noticed. That II, demand is necessarypl'ior to a levy, and that Ii levy made withoUll,aprecedentdel'nandisa wrongfulaet, underthe:!anguage of the statute; admits of Ii v.r6yisions of (section 7608,) that Uno seizure ' * , *. * fOl U1xesshall be made until after the first day of October ()feach yt!a.;r,;",aqd, ,* * *' shall ulltil the collector: has-made demand for the paymerit of the tax" either in person ot'b)'deputy','to the party liable to pay the same, or by leaving a writtenorl'nntE;d notice 'at his place of abode for that
JlJ.ll.de, qn Hlj.zard's agent was sufficient
It will
be
observed that the
·STA71il··QF .MISSOURI :tr·.SPIVA..
Pllrpose) with so111e tnember'ofthe,fa:n1ily,over 15 yeaffl of age,".a.re each mamlatury provisions, and are not merely l.iirectory. If.a collector neglects to perform duty which the law-expressly devolveson him as a condition precedent to making a levy, r can conceh;eof nQ good reason why he should. not be heldUaple for whatever is occasioned by his neglect .of' official I;luty. The legislature hae" aJ$oprescribed the precise forn) or demand. It must be a demand made in person; by the collector or his deputy, OJ:;l the person liable for the taxI, or by notice left at his place of abode with some member of his family over 15 years of age;,and I know of no rule of law that wo:uld .autborize'the court.to say that some. otherform of deIDand, such a.a a 4emandon the plaintiff's general agent or businessmllna.ger, will suffice. '.{'hisproV-ision also seems to be mandatory.. If. the statute merely reto be made, .without prescribing, tbe form of demllnd, quired; a 01' the.personupoD whom it wasta be made, .the demaud allegf?d be adjudged King 'Y.,Whitcomb,lJvletc. 328., iThe- general rule is that all provisions of lawreg.l,l}ating the8Ssessment of·taxes; and- proceedings for·.the and distraint of·.pro-perty (artM· payment of be strictly pursued; and thtl milenas been: {requenUy approved in this state. ToWn of Wq.rren8bt.trg v.J'mlen, 77.MQ. 59; v. Apper8On,97 Mo. 306,10 S.W.Rep·. i7a, cases cited. The act of April 28, 1877, (Laws. 1871, p.3S1,) appears, t4 :have act adopted property. to be seizedfor'jI, tax-bill against realty, and was in that r,espect aradicalcl1ll-nge in: the ·1tJ,w regulating the collectiono.C taxes.. It may 'legislature failed,through oyersigbt, to provide feMible methQdCi>f .making a demand. fOT the payment of of non-resident On the other :hand, it ID,igbt with as D1 uch reason be said tMt the legislatureintended to leave taxeEUJ,ssessed agaiu:st ,to:becolJected by suit btQughtin the fQM, :when' a personal dli!mand Was not practicable, inasmuch aEl taxas assessed against .dents are,u$uallyupon real estate, ,and: are well seGured bya lien QPon the.realty..: Speculations of this sort; however, do not aid in reachings. decillion, as courts are now authorized t9 make laws, or to remedy defects in legislative enactments, when$uchdefects exist. The statute doeEl'not, in terfi!6 or QY necessary intendment" authorize a hwy, unless there has. been a personal demand on the tax-payer, or a notice ·left at. his place of abode with a member of his family. I conclude, , therefore,tbat,a demand made, in any -other forlD will not suffice. Vide State v. &rgent; 12 Mo. App. 237. 2. In view of the fact that in this a plaintiff in replevin, in order to obtain thewrit,fi!ust make oatlrthl;ltthe property sought to be reo covered "has not been seized under any, process, execution, or ,attachmentagainst the property .of the plaintiff," (Rev. St. Mo. 1889, §7479,)a question al'ises whether replevin is, ).lDderany a proper remedY, for a tax-payenvhoS6 asdt isclaimedc,has.been issuedag!\inst him? Thi!lrisa <11;16$wrongfully ileized under a tion of local law;
a
i
J'EDERALREPORTER,
vol. 42.
tonsidel'M,the question, its decision would be binding on this court. I do not find, howevel',.that the question last mentioned has ever been determined by the state courts. It was not considered in M01JYfdt'v. Heljer8tine, 80 Mo. 23, odn H&n:ryv. Bell, 75 Mo. 195, or in Rub6JIv. Shain ,54 Mo. 207, to which my attention was particularly l'ectedon the hearing of the The point discussed and determined in ,those cases, was whetharthe assessments involved were so far regular Il.S to protect' the collector from all liability for seizures. made thereunder. Whether replevin is a proper remedy to test the assessment, or the validity of a seizure made under a taxbill, is a' question not authoritatively determined by either ofthose cases, or by any' of the, caSes cited by counsel. Regarding the question as 'open for' consideration, I ·havereachedthe conclusion that in this state raplevin is not a proper remedy, wheD'the person invoking such remedy is hin)selfthe'person against whom the tax-bill issued under which the seizure Odmplained of waS made. The tax-book under'which,oollectors are authorized to act is requirad to be ifluthenticated by the seal of the oounty ()ourtll.nd the of its clark before, it is delivered to the 'collector; !' The revenue law 'gives to the book soauthentir.ated the force by providing in substance, that after the lector receIvesit' and 'has made' demand, he may thereunder distrain, and sell property iIi likemann.erand with like effect asunder a writ of execution. :ltrm:y judgment, a book of that description,authenticated by the seal Mailourt, and under whicntlt public officer is authorized by statute to seize and sell property, may he aptly termed"process," witt 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;.s<> that it will only comprehend writs issued by courts 'of law.orequity, in the exercise of their ordinary jurisdiction. . Looking at the question from the stand-point of public policy, it appeats to as important that a tax-payer should not be allowed to replevy property seized for taxes, as that a defendant in an 'executioll or attachment should be denied that remedy. If tax-payers were allowed to replevy property distrained for taxes, it is obvious :that theoollection 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. Tha law is well settled in this state that a taxpayer may enjoin the collection of sri illegal tax. Rubey v. Shain, 8Upta; State v. Baline 00., 51 Mo. 352; Ranney v. Bader, 67 Mo. 479; MOVJ'f'er \'. Helferstine, '8(} 'Mo. 27. And if as; in the case at bar . Seizure is claimed ' to beunIs-wfuI, 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 re'lief·for such wrong, by a suit against the collector for cl,amages; if the neglect of duty would, under ordinary circumstances and but for replevin act, enable the tax-payer 'to maintain replevin;
FARVE fl. LOUISVILLE:ll:N. R. 00.
441
It 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 be conceded that a tax-book, duly ,authenticated as provided by law, is legal process. The court, however, is not able to concur in that view. The test of plaintiff's right to inaintain replevin is whether the property in controversy was actually held by the defendant at the time snit 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 has 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 be 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 founA in the statute, and one that would impair its efficacy. Itwotild, 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 bya 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 \vithhold from a person whose property has.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:plea 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 be 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.
FARVE
LOUISVILLE
& N. R. Co.
(Oircuit Court, S. D. Mississippi, S. D. March 7, 1. RAILROAD COMFANIES-RUNNING 011' TRAINS.
A railroad company has a right to run its trains at any speed deemed propel' when they are not passing through an incorporated city or town, or crossing a publio street or highway; and the engineer, in such case, is not bound to look out for per. sons on the track. Where a persol\' knowing that a fast train Is due, gets on the track, and is struck by thd train, he is guilty of such contributoryneghgence as Will prevent his recov. ery for the injuries sustained.
.2.
SAME-INJURIES TO PERSONS ON TRAOK.
At Law.·.