GUPTAIL et al. v. TEFT.

(Supreme Court of Illinois, 1855. 16 Ill. 365.)

Declaration in trespass quare clausum fregit, for breaking and

Overseer of highway! acty's written order oftes & puperiors df Highway

as au ob

entering a certain close in the town of Hanover, in said county of Comms tore down Cook, situate on section 31, and breaking down, prostrating and destroying 300 rods of fencing, and breaking the boards, rails and posts, and destroying the lumber whereof the same was made, and Atruct to a trampling down the herbage, etc. Damages, $1,000.

Pleas: (1) General issue. (2) The following special pleas: "And the said defendant, John Guptail, for further plea in this behalf, by leave, etc., says plaintiff actio non, because he says, that the said close in said declaration mentioned, is situate at and within. road district number ten (10), in the town of Hanover, in the said county of Cook; that the said town was, at the time when, etc., organized under the act of the General Assembly of the state of Illinois, approved February 17, A. D. 1851, entitled 'An act to provide for township organization'; that on the 10th day of June, A. D. 1854, Andrew Spitser, S. N. Campbell, and Christophe Sohle, were commissioners of highways in said town of Hanover, duly elected and qualified, and then and there, by virtue of their said office, and according to the force of the statute aforesaid, had the care and superintendence of the highways and bridges in said town, with power to lay out new highways, and to regulate and alter pre-existing highways in said town, and cause the same to be repaired, kept open and free from obstructions; that on the said 10th day of June, the said defendant was overseer of highways in said road district number ten (10), in the said town of Hanover, duly chosen and qualified as such; that it then and there became, and was, the duty of this defendant, as overseer of highways, to open new highways, and remove all obstructions to pre-existing highways, within his said district, when thereunto required by the said commissioners of highways; that on the said 10th day of June, the said commissioners of highways made and delivered to this defendant an order, in the words. and figures following, to wit:

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66

"Hanover, June 10, 1854. "To John Guptail, Overseer of Road District No. 10, Town of Han

over:

""Sir: Complaint having been made to the commissioners of highways in and for the town of Hanover, Cook county, that the highway running on the line between the sections thirty (30) and thirty-one (31) is obstructed by a fence owned by Jonathan Teft, Sr., and he having been legally notified to remove the same, and not having complied, you are hereby ordered by the undersigned, commissioners of highways for the town of Hanover aforesaid, to remove, or cause

FR.ADM.LAW-22

Podefs
struct to a highw

the same to be removed, said fence within twenty days after the receipt of this order.

Andrew Spitser,

"'S. N. Campbell,

"Commissioners of Highways.' "And the said defendant avers that the said highway described in said order was the same identical close in the said declaration mentioned, the said close being then and there part and parcel of an inclosed field; and the said defendant further avers that in obedience to said order he did, at the time when, etc., break and enter upon the close in the said order and in the said plaintiff's declaration mentioned, and pull down the said fence of the said plaintiff, and remove the same from off the said close or highway, as he lawfully might do, for the cause aforesaid; and in so doing he, the said defendant, with feet in walking did a little injure the herbage and grass, corn and grain then standing and growing upon the said close, and did a little break the boards, rails and posts of which said fence was erected, doing then and there no unnecessary damage to the said plaintiff, which are the same supposed trespasses in the said declaration mentioned, and this defendant is ready to verify, etc. Wherefore, he prays judgment," etc.43

Plaintiff demurred to each of the said special pleas, in which defendants respectively joined.

Interlocutory judgment upon demurrer for plaintiff, general issue withdrawn, jury impaneled assessed the plaintiff's damages, $160. Final judgment.

Error assigned: In sustaining plaintiff's demurrer to the said defendants' pleas.

Cause tried before J. M. Wilson, Judge, and a jury, at February term, 1855.

CATON, J. We are of the opinion that the demurrer to the two special pleas was properly sustained by the court below. They justify the trespass complained of under an order issued by the commissioners of the town of Hanover, directing the defendant Guptail, who was overseer of highways, to open a public highway on the line between sections 30 and 31, in that town, but they nowhere show that there was a legally laid out highway there. Unless there was such highway there, the commissioners of highways had no authority to order a road to be opened. They had no jurisdiction to act in the premises, and their order to the defendant was a simple nullity, conferring upon him no authority whatever. Only in such a case does the statute authorize them to issue such an order. Upon the argument an attempt was made to liken this order to a writ issued by a court of justice, which, if regular upon its face and emanating from a court having authority to issue such writs, is

43 A special plea by the other plaintiffs in error, inhabitants required to render road labor, is omitted.

When is a wr. fair on ito face: When it comes an or to whose jurison the suby matter involved is submitted. Was the exusts of a lyhway a fact bubmilled to theth of his bed or a fact necessary to its in? Ca holds it was a act necessy to

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ACTIONS TO RECOVER DAMAGES OR MONEY.

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a justification to a ministerial officer who executes it, although in fact
it is issued in a case not warranting it. In such a case the ministerial
officer is not bound to go behind the writ and inquire into the reg-
ularity of the previous proceedings. Were the cases analogous, the
argument would be conclusive; but they are not. The commis-
sioners of highways do not constitute a court in any sense, although
some portion of their duties may be of a judicial character. Yet
this is so in a very limited sense, and the duty in question was not of
that character. Not only the commissioners themselves, but others
who would seek a justification under their orders, must take the re-
sponsibility of showing that a case existed which justified them in.
issuing their order.

This the pleas do not show, and the judgment must be affirmed.
Judgment affirmed.**

CHEGARAY v. JENKINS.

(Court of Appeals of New York, 1851. 5 N. Y. 376.)

This action was commenced in the Superior Court of the City of New York to recover damages for the taking of personal property of the plaintiff (Madame Chegaray) by the defendant. The defendant, who was a constable of the city and county of New York, justified the taking by virtue of a warrant issued to him by the receiver of taxes for the city and county of New York for the collection of a tax alleged to have been duly assessed and imposed by the supervisors of that city and county against the plaintiff, and upon certain premises in the city of New York, owned and occupied by the plaintiff, and which were liable to taxation. The circumstances under which the assessment was made and the warrant issued, are stated in the opinion of Chief Judge Ruggles. The plaintiff obtained a verdict and judgment at the Special Term, which on bill of exceptions was reversed at the General Term, and judgment rendered in favor of the defendant. The plaintiff appealed to this court. See 3 Sandf. 409.

RUGGLES, C. J.45 *

But there is an insuperable objection to the plaintiff's recovery in this action against the collecting officer. By the act of 1843 (chapter 230) the office of collector of taxes is abolished, and that of a receiver of taxes is created. By article 2 of that act the supervisors are required to cause the assessment rolls of each ward to be delivered to the receiver, with warrants annexed for the collection of the taxes from each person assessed on or before the 25th of September in each year. If the tax remains unpaid to him on the 15th of April following, the receiver is authorized to issue

92* {(1875);

44 See, accord, Mill v. Hawker, L. R. 10 Ex. 92 ̊(1875); Shoup v. Shields, 116 Ill. 488, 6 N. E. 502 (1886).

45 Only a portion of the opinion of Ruggles, C. J., is printed.

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as collector in the enfore of a tax regular f·legally assess is Pf." The collector cd not revise no regularf·legally refuse to enforce the asst regulary made by the assessor intly exercise of the latter's fo The duties of the collector in the enforce t of the tax assessed were pulministerial The ass: duly certified them, was his authy to proceed like aux ? to a sheriff hy of the matter constituted

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regular on its face, issued a Forkenal havmMINISTRATIVE ACTION.

340

RELIEF AGAINST

(Part 2

his warrant directed to the sheriff or to any constable or marshal of
the city and county, commanding him to levy the tax with interest
by distress and sale of the goods of the person against whom the
warrant is issued, and to pay the same over to the receiver.

The plaintiff's property was assessed by the officers authorized to
make assessments in the ward where the property was situated, the
assessment was confirmed by the supervisors, the roll and warrant
were delivered to the receiver, the tax remained unpaid until after
the day mentioned in the statute, and the receiver issued his warrant
to the defendant, a constable, for its collection by distress and sale.
It is admitted that the warrant was in due form of law. There is no
pretense that anything appeared on its face showing a want of
authority in the assessors in making the assessment, in the super-
visors in confirming it, or in the receiver in issuing his warrant. The
warrant, therefore, was a perfect justification to the officer in taking
the plaintiff's property. The case of Savacool v. Boughton, 5 Wend.
170, 21 Am. Dec. 181, is conclusive on this point. It was there settled
that a ministerial officer is protected in the execution of process,
whether the same issue from a court of general or limited jurisdic-
tion, although such court have not in fact jurisdiction of the case,
provided it appears on the face of the process that the court has juris-
diction of the subject-matter, and the process in other respects shows
no want of authority.

The principle established in the case here cited is applicable to the case before the court. The assessors, in determining whether the plaintiff's property was taxable as a dwelling, or exempt as a seminary of learning, acted judicially and within the sphere of their duty. But being officers clothed with limited powers conferred by statute, their decision on a question in which their own authority to act was involved, was not for all purposes conclusive. The general principle is that the proceedings of magistrates and officers having special and limited jurisdiction must bear on their face the evidence of their jurisdiction, or they will be judged invalid, and that in collateral actions their judgments may be questioned and disregarded, if it appear that in fact they had no authority to act in the given case. Perhaps in the present case, if the defendant had sold the plaintiff's property for the tax in question, the legality of the tax might have been an open question between the plaintiff and the purchaser in an action to recover the property. But the assessors, having the general authority to make assessments for taxation within the ward in which the plaintiff's property was situated, had jurisdiction of the subjectmatter of the assessment in question, and the delivery of the assessment roll and warrant to the receiver conferred on him the authority of issuing his warrant to the defendant as one of the constables of the city and county. It was no part of the duty of the defendant, a subordinate officer, to overrule or to dispute the authority of his superiors, unless upon grounds apparent on the face of their man

It is now well settled that if the on or tribunal possess in over the subject matter upon wh judet is passed with porn to issue an order or process for the export of auch pro the order or process issued there on to the ministerial or is regular on to face showing node partive from the law or defect of jurisdic n Reperson or property affected then, in such cases the order or process, full sentire moticon to this ministerial for in its regular enforcement

mo

Stutom Co Mallace i Co treas acty under a ur. Co Commrs collected cert taxes wh Cought not to have collected from the 40th & shions that the ww.rego

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ACTIONS TO RECOVER DAMAGES OR MONEY.

341

date. The law does not give him the means of ascertaining extrinsic
facts for this purpose, nor does it attribute to him the capacity for
reviewing the assessment on such facts, if they could be ascertained.

The cases of Suydam v. Keyes, 13 Johns. 444, Smith v. Shaw,
12 Johns. 257, and Wise v. Withers, 3 Cranch, 331, 2 L. Ed. 457,
so far as they countenance the contrary doctrine, are overruled in
Savacool v. Boughton above referred to. The constable must be
protected by the law, in the discharge of a duty imposed by law. The
plaintiff in this case was not without remedy. Application might have
been made in the first instance to the assessors for a review of their
assessment (1 Rev. St. p. 393, § 22), and if that failed the supervisors
of the city and county of New York were authorized by Act May
2, 1844, c. 250, § 2, to correct any erroneous assessment within six
months after the return of the assessment rolls.

Whether the error in this assessment might have been corrected on a certiorari to the assessors, or to the supervisors after having made the proper application to them, without success, for relief, is not material to the present question. The constable cannot be made responsible on the ground that no relief elsewhere can be had. Judgment affirmed. 1o

46

SECTION 38.-SAME-ACTION AGAINST SUPERIOR

OFFICER

WHITFIELD v. LORD LE DESPENCER.

(Court of King's Bench, 1778. 1 Cowp. 754.)

a P.O. porter pleals a

Action on the case against the Postmaster General on account of tter containing the

the loss of a bank note for £100. sent by the plaintiff in a letter.
The bank note had been stolen by a sorter in the post office in London.
who had been convicted and executed for the offense.

Lord MANSFIELD.47 * * * I shall consider this question in two
lights: (1) As it stood in the year 1699, before the determination
of Lane v. Cotton, 12 Mod. 472. (2) As it stands now, since that
determination; and also, what has been done in consequence of that
decision. And first as it stood in the year 1699.

The post office, as Mr. Lee has truly said, was first erected during the usurpation, by an ordinance of Cromwell, and afterwards more

616

46 Accord: Erskine v. Hohnbach, 14 Wall. 613, 20 L. Ed. 745 (1872); Stutsman County v. Wallace, 142 U. S. 293, 12 Sup. Ct. 227, 35 L. Ed. 1018 (1892); Throop, Public Officers, §§ 756-770.

See, however, Nichols v. Walker & Carter, 4 Cro. Car. 394 (1634).

47 Only a portion of the opinion of Lord Mansfield is printed.