Timberlake v. Brewer

59 Ala. 108

• Court: Supreme Court of Alabama
• Decided: December 15, 1877
• Status: Published

Opinion

BRICKELL, C. J. —

This is a summary proceeding, under sections 3059-61 of the Revised Code, against a tax-collector,, and the sureties on his official bond, for a failure to pay into the State treasury the amount of State tax collected by the collector in 1870. In proceedings of this character, it is the settled practice to regard the notice of the motion for judgment as serving the double purpose of process and pleading. While as pleading it will be insufficient, unless it shows distinctly every fact on which the plaintiff’s right of agtion, and the liability of the defendant depends, the technical precision and accuracy of a declaration at common law, or of the corresponding pleading, a complaint under the Code is mot required. It is enough, when the liability of the defend.ant which is sought to be enforced is stated with reasonable certainty — when the defendant is fairly apprised of the cause of action, and the court informed of the judgment it is called on to render. The rules of the common law in reference to variance, have but a limited application in such a proceeding. — Lyon v. State Bank, 1 Stew. 442; Colgin v. State Bank, 11 Ala. 222. The notices issued to Weaver, Gunnells, and Boss, vary from the original notice, in no other respect than that they are directed to each one of them, and not to all the makers of the bond, and do not aver who are the other co-makers. The date and amount of the bond— the default of the principal for which a recovery is claimed, are averred as in the original notice. These notices, when served, must be filed with, and become parts of the proceedings in the suit commenced by the original notice. It is not possible to doubt that each defendant was reasonably informed of the precise cause of action, upon which the motion for judgment would be made, and the court could not hesitate as to the judgment which should be rendered, if the facts stated in the notices were proved. This is all the statute contemplates.

2. The statute does not in express terms require that the notice shall be in writing, nor is the mode of giving it pre.scribed. Ten days notice of the motion is its only requisition. The notice serves the purpose of its process — it is its service, for the period of ten days before the motion is made, which gives the court jurisdiction of the person of the defendant, and authority to proceed to hear the 'motion.

The returns on the notices are not insufficient because they do not state the county of which the officer executing them was sheriff. The courts are bound to know who are the sheriffs of the different counties; and if they were not, the mere statement by a person returning process that he was sheriff of a particular county, would not be evidence of the fact. — Snelgrove v. Br. Bank Mobile, 5 Ala. 295. But the returns on the notices to Gunnells and Boss were insufficient, because without date. Ten days notice to the party against whom judgment is to be rendered, is an essential element of the proceeding. The fact does not appear from the return, and the court was without jurisdiction to proceed to judgment against them. Nor could this deficiency be supplied by parol evidence. The return is the act of the officer, and must be in writing, and complete in itself. It can not rest partly in parol, and partly in writing. When deficient, it may be amended, but the amendment must be made by the officer under the direction of the court.

3. The certificate of the Auditor is by statute made presumptive evidence of the act or omission upon which the motion is founded, and of the amount due the State. — Eev. Code, § 3061. The Auditor is charged with the superintendence of the fiscal affairs of the State, and with the duty of auditing and adjusting the accounts of all puhlic officers, keeping a regular account with every person in each county in the State, who is by law authorized to collect and receive any part of the public revenue. It is contemplated by the statute, that he will diligently inquire as to the amounts of the public revenue derived from taxation, which may be received by each probate judge,'Jand each tax-collector. If' the officers on whom the duty is cast, make proper returns and certificates to his office, documentary evidence will generally be found in the office, on which he may make the certificate which becomes presumptive evidence. The duty may be neglected by these officers, or may be performed negligently, or so imperfectly, with such little regard to accuracy,, as not to furnish him the requsite information. There is no indication in the statutes of any purpose to confine him to these sources of information, reducing his certificate to a mere statement of the facts which they disclose. Though he may accept them as sufficient, and usually they may be,— when necessary, and he must judge of the necessity, he may resort to other sources of information, and predicate the certificate on the facts derived from them. The duty he is required to perform, is diligent inquiry as to the amount of the public revenue derived from taxation, received by the judge of probate, or the tax-collector, and a certificate of the amount either has failed to pay into the State treasury. The certificate becomes presumptive, not because of the sources of information on which the Auditor may predicate it, but because it is made in obedience to law, in the performance of official duty, and under the sanction of official oath.

Nor can an inquiry be indulged, and a controversy entertained as to the admissibility of the certificate, or its force as evidence lessened, because of the sources of information on which the Auditor may have acted in making it. The point, of controversy, and of inquiry, is, are the facts stated in it true — has the officer committed the default to which the Auditor certifies. Such default may have been committed, though the evidence on which the Auditor proceeds was. mere hearsay, or his sources of information may not be such. as the law would regard as the best and highest. The objections made to the certificate of the Auditor in the Circuit Court were properly overruled. It conforms to the statute— it states the omission of the tax-collector to pay the taxes collected by him into the State treasury, and the amount due the State. Of these facts it was admissible and presumptive evidence, compelling the defendants to repel the presumption by evidence, not merely in disparagement of the information on which the Auditor acted in making it, but of its untruth.

4. Nor was there any ground of objection to the abstract of assessment certified to the Auditor by the judge of probate. The revenue law of 1868 established in each county a board of equalization, charged with the duty of examining the assessment book which the assessor was required to return to the probate judge. It was also the duty of the board to hear complaints from the tax-payers as to erroneous or excessive valuations of taxable property, and to equalize the valuations, so that they would be uniform throughout' the county. Of this board, the judge of probate was ex officio chairman, and it was his duty when the board had concluded the examination and equalization, to certify its action on the book of assessment, with a statement of the aggregate value of the taxable property of the county as 'determined by the board. It was also his duty, within five days after the adjournment of the board, to make and certify to the Auditor, a complete abstract of the assessment of all real and personal property in his county, showing the total amount and value of each class of taxable property contained therein. The book of assessments having been examined by the board of equalization, the judge of probate appended a certificate of the action of the board, and which, also, stated the aggregate value of the taxable property of the county. The certified abstract of the assessment was also forwarded to the Auditor; and the collector had paid into the State treasury the amount of the State tax as shown by it. These facts having been shown in defence, the Auditor was permitted to show errors in the book of assessment — not in the valuations of property, nor in the omission of persons or property subject to taxation —but errors in the additions of the valuations contained in the book, which, when corrected, increased the aggregate value of the taxable property of the county as shown in the book. It was not proposed to add to or subtract from the entries in the book — mere arithmetical errors in the additions of the several columns stating the class and value of the taxable property assessed to each tax-payer were to be corrected. These corrections having been made, the judge of probate certified a second abstract of the assessment to the Auditor, showing the value of the taxable property as contained in the assessment, and it is to the admission of this abstract as evidence objection was made. The point of objection is, that there was no authority to re-examine the book of assessment and correct these errors, after the book had ■been examined by the board of equalization, and the certificate of the judge of probate had been appended, showing the aggregate value of the taxable property of the county — and that the judge of probate had no authority, having once made a certified abstract of the assessment to the Auditor, to make a second correcting the errors of the first. The duty of adding the valuations of each species of taxable property in the county, and thus disclosing in an aggregate sum the total amount of the assessment, was not devolved on the board of equalization. Their duty was confined to the correction of erroneous or excessive valuations, thereby producing an uniform and equal valuation throughout the county. This duty was in its nature quasi judicial, and when it was once performed, however erroneously, it could not be corrected after the adjournment of the board, unless it was by some direct proceeding in a proper tribunal, if there was any, having jurisdiction. The duty of adding together the different valuations of the taxable property, showing the aggregate of the assessment, was merely clerical, imposed in the first instance on the assessor. — Pamph. Acts 1868, 311, § 37. After the board of equalization had acted, their action, if it varied the valuations of the assessor, would necessarily vary the aggregate of the assessment. Then, it was the duty of the judge of probate to certify on the book of assessment the aggregate value of the taxable property of the county. The form of certificate embodied in the statute, states that the board have determined the aggregate value; but the determination was not by performing the mere clerical duty of adding the valuations ; it was by the changes of the assessor’s valuations the board may have ordered. The duty of certifying the aggregate value of the taxable property devolved alone on the probate judge, and included the duty of ascertaining it. All error in ascertaining and certifying it is merely clerical. The error can work injury to no one — the valuations found on the book are not changed — no new burthen is imposed on the tax-payer, and no right affected. The power and duty of the officer to correct such an error can not be doubted— the means of correction are found in the book — there is no necessity for a resort to extrinsic evidence, and the aggregate value of the taxable property, is simply made to correspond to the particular and several valuations found in the book.

The duty of the judge of probate in the preparation and certificate of the abstract of assessment, which he was required to forward the Auditor, was also merely clerical. The abstract was intended simply to furnish evidence, which should remain on file in, and become a document of, the Auditor's office, by which the total amount and value of each class of taxable property of the county as shown by the book of assessment, could be ascertained. It was subject to correction at all times by reference to and comparison with the book of assessment, which in the absence of statutory provision, would be the highest and best, and so long as it could be produced, the only evidence of these facts. That an erroneous abstract can not be corrected by the probate judge— that he' and the State are inexorably bound by it — that it is irreparable and irremediable, is a proposition which can not be admitted. The duty of the judge is not performed — his power is not exhausted — until he has certified to the Auditor a complete abstract of the assessment of all real and personal property in his county, showing ■the total amount and value of each class of taxable property contained therein, extended into a column, and the total amount of such sums, so extended. An incomplete abstract — imperfect, erroneous, misleading, because the valuations are not properly extended, or not properly added, is not the abstract it is his duty to furnish, and does not lessen his duty or power to furnish one complete. If several are certified, and a controversy arises as to which is correct, it can be determined by the book of assessment— not by the mere additions and items of aggregate amounts which may be found therein — but by the several entries of taxable property, and its valuation, as assessed to each taxpayer. The abstract when filed in the office of the Auditor, becomes a paper pertaining to the office and is made evidence by the statute. — Code of 1876, §§ 3047-49.

5. It is not material in what capacity Haralson acted in making the examination of the book of assessment. The capacity was not official — the duty performed was not strictly ministerial, nor was it judicial, as these terms are applied to official duty; it was simply clerical — that of an accountant. It may have been performed voluntarily without request from, and without the cognizance of the judge of probate, or of the Commissioners Court. Though it was performed at the request of the Commissioners Court, the results of the examination do not thereby become legal evidence. But it was not the result of the examination which was proved or offered in evidence. Having examined the assessment book, added up the entries in its different columns, with the book before the jury, he pointed out the errors in addition previously made — the additions as correctly made, and the true aggregate amount of the value of the taxable property of the county, as shown by the book. He was not required to give any construction to the written entries, nor to declare their legal effect. On the well-settled rule, and the reason of it, that when the characters in which a paper is written are obscure or difficult to be deciphered, the evidence of persons, whom practice and experience have made skilful, will be received to aid the court or jury in arriving at a true reading of the instrument, the evidence was admissible. — Stone v. Hubbard, 7 Cush. 595; Sheldon v. Benham, 4 Hill, 597; 2 Whart. Law of Ev. § 972.

6. The assessment book when delivered to the collector, is the authority and warrant on which he proceeds in the collection of taxes. Not an authority and warrant for the collection of the amount of the taxes as shown by the aggregate value of the taxable property as certified by the judge of probate. It is an authority and warrant for the collection, from each individual tax-payer, of the tax assessed on property to him — whether the aggregate as shown by the certificate of the judge is lessened or increased. The revenue law of 1868 pointed out a particular mode, by which he could obtain credit because of errors in the assessment book, or because of the insolvency of the tax-payer. Prima facie on the delivery to him of the assessment book, he became chageable with the tax assessed to each tax-payer; and when 'the time allowed for collecting has expired, must be deemed to have collected it, unless he discharges himself by showing that in the mode prescribed he has obtained credit for it as an error of assessment, or because of the insolvency of the tax-payer. At his instance, in answer to the demand of the State, regularity, or legality of assessment, is not an inquiry. The substantial inquiry is, has he, by virtue of his office, received money for the State. If he has, it is not his province to dispute the right of the State to receive it, unless he can show that the tax-payer has demanded, and he has refunded it. — Thompson v. Stickney, 6 Ala. 579; Boring v. Williams, 17 Ala. 510; Cooley on Taxation, 500. The errors in the additions on the assessment book, and in the first certified abstract to the Auditor, were not material. The inquiry was, what was the amount of the State tax the collector'had received. This amount was ascertainable not by the mere aggregate of the valuations on the tax-book — or by the certified abstract to the Auditor — but if these varied from the separate items assessed to each tax-payer, by a true aggregation of these items. These items he had authority to collect, and it is not for him having collected them, to discharge himself by paying into the treasury, not these items, but the aggregate amount of the assessment as shown by the erroneous additions of' some other officer, which these greatly exceed. Profiting by such errors, the law does not tolerate.

The rulings of the Circuit Court in the admission, and in the refusal to exclude evidence, was in conformity to these views, as was the instruction given the jury to which an exception was reserved. There was no error in the refusal of the instructions requested by the appellant, except that-numbered eight. The burden of proving the cause of action devolves on the plaintiff, when it is denied, and satisfactory evidence must be produced, or he can not recover. This is the substance of the charge, and we can discover no reason for refusing it. The remaining question, relating to the mode of taking and entering judgment, will not probably arise again, and its determination is unnecessary.

For the errors pointed out the judgment must be reversed and the cause remanded.