Peck v. Holcombe

3 Port. 329

Opinion

Hopkins, J.

The inquiry, in this case, is into the nature of the power given, by the statute of 1829, to judges of the County' Courts, over persons, who might be re-elected, after its enactment, assessors and tax collectors.

The statute requires such an officer, to present, on or before the first Monday in January, after his re-election, to the judge of the County Court, of the proper county, receipts, in full, from the State and County Treasurers, for the taxes of the preceding year, together with his bond, for approval; and in the event of his failure to do so, makes it the duty of the judge to declare the office vacant.

a

If an assessor present satisfactory í-eceipts and a sufficient bond, within the time limited, the judge has power to determine that they are so. But, should he fail to present them, it would be the duty of the judge, to adjudge the office vacant. The statute gives the judge jurisdiction of the subject, and the presentment of the receipts and bond, or the omission to do so, jurisdiction of the person of the assessor: the judge therefore, has power, which must be exercised, in determining, either that the assessor has done or omitted what the act requires. Were he to admit, that receipts were in full, which were not so, or to receive an insufficient bond, such an act would be, until the effect of it should be destroyed, by the judgment of some other Court, conclusive evidence of the assessor’s right to perform the duties of his office.

The power is judicial, and the exercise of it, by. the judge, in the declaration which .he made, that the office of assessor, to which the defendant had been elected, was vacant, from his having failed to present his bond for approval, within the time required, cannot be questioned, by proof that the judge was absent when the defendant was ready to present one. As long ás the declaration remains in force, it is conclusive evidence that be did fail to present his bond.a

The Circuit Court erred in admitting the evidence, which the defendant offered. The effect of the declaration which the judge made, was to deprive the defendant of the office of assessor, and leave it vacant. ■ As he had no authority to collect the taxes,' his sale of the property of the plaintiff,'Peck, to satisfy the claim against him, was illegal. He was a wrong doer, and might have been treated, by the plaintiff, as a trespasser. But the plaintiff had a right to waive the tort, and recover.the amount of the proceeds of the sale of the property, which the defendant received without any authority.b

Let the. judgment be reversed, and the proper judgment be rendered by this Court, in favor of the plaintiff, Peck, for the amount the defendant collected of him, with interest thereon, from the time 'it was received,

Aik.Dig. 37

8 John. R. 36; 8Cow. 187;3 Wen.42; 9Mass. R. 231.

20 Eng.C. L.Rep.380