State v. . Lutz

65 N.C. 503

• Court: Supreme Court of North Carolina
• Decided: June 5, 1871
• Status: Published

Opinion

Read®, J.

We are to consider the case as if Nancy Greenhill owed the taxes claimed, and as if the property distrained washers, and as it the defendant was lawfully deputized to collect the taxes. The case will then stand, upon the question whether the list of taxables which he had in his hands was sufficient to authorize him to act ? or whether it was necessary that he should have in his hands a list made out and certified by the-Clerk?

It is certainly usual, and it is very proper, that a tax collecting officer have in his hands a tax list, certified by the Clerk ol the Court, as a guide for himself, and as information for the tax payer, who may wish to inspect it. Kelly v. Craig, 5 Ire. 129. And an officer wantonly failing to afford the people this reasonable satisfaction, would soon find the penalty in their displeasure, even if there were no more substantial means of reaching him.

But it does not appear that there was any demand for the inspection of the tax list in this case, or any wanton or oppressive conduct, on the part of the officer; so that whether he had a list or not, did not work any real mischief. The fact was, that the Sheriff had made a copy from the list of taxables in his hands, of certain persons, with the amount of their taxes, and gave the list to the defendant,'and deputized him to collect the taxes in that list, and Nancy Greenhill was upon that list, and the defendant distrained her property for her taxes.

The 'order of the Court laying taxes is understood to have the force of a judgment, as in cases between parties; and the list of taxables issued to the Sheriff has the force of an execution, and justifies the Sheriff, in collecting the taxes as the law directs; just as an execution issuing upon a judgment between parties, justifies the Sheriff in collecting the amount therein named.

It is usual and proper, that the Sheriff should have in hcmd the execution under which he acts, but we do not see that it is necessary that he should. If the execution has been issued to him, he may leave it in his office and rely upon his memory, or a copy, for his guide. So in this case, the tax list was in the Sheriff’s office; and he gave a memorandum or copy to the defendant, his deputy, who then had all the powers which the Sheriff had. 3 Chitty’s Pl. 782; Meeds v. Currer, 8 Ire. 298.

There is error.

Per Curiam. Venire de novo.