Lathrop v. Brittain

By the Court, Currey, C. J.: This action was brought to recover the possession of twelve hundred and fifty-five acres of land, and also the sum of twenty-five thousand dollars damages, the alleged value of the use and occupation of the land during its possession by the defendants from the date of the alleged ouster to the time the action was commenced, which was nearly four years; On the trial of the issue joined between the parties, it was in evidence that one L. M. Brittain became the owner of the demanded premises on the 18th of January, 1859, and at that time entered into the possession thereof. The defendant, J. W. Brittain, was in possession of the property when the action was commenced. His position was, in effect, that his possession was rightful, and that he could not be lawfully required to yield it until the plaintiff’s right to it was affirmatively established. As to this question there was no controversy, but to maintain his alleged right and title the plaintiff offered in evidence a tax deed executed by virtue of a sale for taxes imposed for the fiscal year commencing in 1859. When offered, the deed was objected to on the part of the defendants, on the ground that it was executed by a person who had no authority under the statute or otherwise to execute the same. The Court sustained the objection. To this ruling the plaintiff excepted, and then with the defendants submitted the case; whereupon the Court gave judgment for the defendants.

[683]The main point made by counsel in argument is in respect to the authority of the Under-Sheriff to represent the Sheriff in his capacity of Tax Collector in the sale of the property for taxes and the execution of the deed.

Under-Sheriff cannot act as Tax Collector.

The seventh section of the Sixth Article of the Constitution, existing at the time the tax sale was made and when the deed was executed, required the Legislature to provide for the election by the people of County Clerks, Sheriffs and certain other officers, and to fix by law their duties and compensation ; and the same section provides that “ County Clerks shall be ex officio Clerks of the District Courts in and for their respective countiesbut no provision is to be found in the Constitution under which the Sheriff, as Sheriff, may perform the duties of Tax Collector. The thirteenth section of the Eleventh Article of the Constitution provides that “ Assessors and Collectors of town, county and State taxes shall be elected by the qualified electors of the district, county or town in which the property taxed for State, county or town purposes is situated.” Thus it is seen that the paramount law of the land requires the Tax Collector to be elected by those alone who are concerned— that is, by the qualified electors of the district, county or town in which the officer named is to exercise the office of Tax Collector. To carry into effect this constitutional provision, the Revenue Act of 1857 provides that “ except in those counties where by special Act it is provided that some other person shall be Tax Collector, the Sheriff of each county shall be Tax Collector in his county, and shall collect all taxes except municipal taxes and poll taxes.” The mode provided for the election of Tax Collector is an attempt to comply with the constitutional requirement to the effect that the Tax Collector shall be elected by the electors immediately concerned.