
    Lemon Thomson et al., App’lts, v. Hiram Harris, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1895.)
    
    1. School—Taxes—Assessment list.
    The provision of section 65, tit. 7, chap. 555 of 1864, requires a heading, showing for what purpose the different items of the tax is levied, to "be prefixed to the tax list, whether the tax is voted by the district or whether it is such a tax as the trustee is by law authorized to levy without any vote of the district.
    2. Same—Statement.
    Such provision is directory only, and a failure to prefix such heading does not vitiate the assessment.
    Appeal from a judgment of the county court, affirming a judgment of the justice in favor of defendant.
    
      Ostrander & Salisbury {William S. Ostrander,-of' counsel), for app’lts; Joseph D. Buucus, for resp’t.
   Mayham, P. J.

This appeal was tried in the county court as a new trial. On the trial before the justice, from which the appeal is taken, the parties stipulated the facts, and the justice rendered judgment in favor of the defendant, dismissing plaintiffs’ complaint. On the trial in the county court, the parties stipulated upon the same facts submitted to the justice, and passed upon by him, and the county judge made a decision in favor of the defendant, dismissing plaintiffs’ complaint, with costs. From a judgment entered upon that decision, this appeal is taken.

The action was brought by the plaintiff to recover damages against the defendant for wrongfully entering upon plaintiffs’ premises, and taking, selling, and disposing of a quantity of shingles. The answer was: First, a general denial; second, a justification as a school district collector, acting under a warrant issued by the trustees of a school district, and delivered to the defendant, as collector, under which he seized and sold the shingles in question, to satisfy a tax levied and assessed by the trustee of the school district against the plaintiffs, who were residents of the district. The warrant and tax list upon which the defendant sought to justify was put in evidence, from which it appears that a warrant, regular and proper in form, and duly signed by the trustee, was placed in the hands of the defendant, as collector, and that, attached thereto, was the assessment and tax levy of the various inhabitants of the district, among which was the assessment and tax levied and assessed against the plaintiffs. There was not prefixed to the tax list a heading showing for what purpose different items of the tax was levied ; and the only ground upon which the plaintiffs sought to recover, and upon which this appeal is prosecuted, is that the warrant under which the shingfes were sold was void, because of the omission from the tax list of the statement of the purpose for which the tax was levied. This contention is based upon section 65 of title 7 of the general school act of 1864 (chap. 555). That section reads as follows :

“Within thirty days after the tax shall have been voted by the district meeting, the trustees shall assess it and make out a tax list therefor, and annex thereto their warrant for its collection. But they may at the same time assess two or more taxes so voted, and any tax or taxes they are authorized to raise without such vote, and make out one tax list and one warrant for the collection of the whole. They shall also prefix to their tax list a heading showing for what.purpose the different items of the tax. is levied.”

The tax levy upon which this warrant is issued does not appear to have been made out for the collection of a tax voted by the district, but was for the collectin of such tax as by law the trustee was authorized to levy without any vote“ of the district. It is urged by the learned counsel for the respondent that the provisions of section 65, above quoted, do not require- the trasteé to prefix to a tax list for the collection of a tax not voted by the district any statement showing for what purpose the tax is levied. And this contention is based upon the fact that the law fixes the tax which may be levied by the trustee without a vote, and that there is no reason for prefixing to such a tax a statement of the items for which it is levied. There is some force in this argument; but we do not think the section quoted justifies such a construction, as the provisions seem to be general, and to relate to any tax list levied by the trustee and annexed to the warrant. It is quite clear, as is contended by the learned counsel for the appellants, that in any proceeding, either by the government or an individual, under any statute in derogation of the common law, whereby the property of citizen is taken against his will, the statutory cedure should be strictly pursued. This proposition is so thoroughly established by authority that it seems unnecessary to cite cases.

But it is insisted by the counsel for the respondent that the provision of the statute relating to the list of purposes for which the tax is levied, and which was omitted from this warrant, is directory only, and not mandatory; and that the validity of tire-warrant for the collection of this tax in no way depended on the prefixing of such list. If this contention be sound, then the warrant, which was the authority under which the defendant acted, was not void upon its face, and would furnish adequate protection to the officer who executed it. If, on the contrary, this provision of section 65 was mandatory, and constituted a condition upon which only a valid warrant could be issued, then such warrant, without the list, would be defective upon its face, and void, and the officer executing it would be without protection. It will be observed that there are no negative words in this last clause, showing that the warrant would be irregular or defective if the provisions of such clause were not complied with. The general rule is that:

“ Statutory prescriptions in regard to time, form, and mode of proceeding of public functionaries are generally directory, as they are not of the essence of the thing to be done, but are given simply with a view to secure system, uniformity, and dispatch in the conduct of public business.” 23 Am. & Eng. Enc. Law, p. 458.

And one of the tests for the purpose of determining whether a provision of the statute is in reference to the performance by an officer of a public duty, is whether the statute contains negative words which render his acts illegal or improper if the provision is not complied with. In the case at bar, the object to be attained was the collection of the tax for school purposes. The method of attaining that object was by the levying of a tax on the taxable inhabitants of the district in proportion to their respective valuation, and the method by which that was to be enforced was through the warraht issued by the trustee to the collector. All these objects were attainable without the prefixing of the purpose of the tax to the tax list, and there is nothing in the statute in terms which renders the levy, assessment, and warrant void if a statement of the object for which the tax is levied is not prefixed to the assessment. If this view is correct, the provision of the section which requires the prefixing of a statement of the object of the tax to the tax list was not mandatory, but directory only, and the warrant and tax list therefore not defective upon their face, so as to render them void in the hands of the collector. We are therefore inclined to hold, not without some hesitation, that the warrant and tax list were fair upon their face, and that they furnished protection to the officer who executed them. Whether they would be a protection to the officer who issued them we are not called upon to determine.

The judgment of the county court should, therefore, be affirmed, with costs. Judgment affirmed, with costs. All concur.  