WILLIAM MERICLE & NOAH GROVER, Plaintiffs in Error, vs. WILLIAM MULKS, Defendant in Error, 1 Wis. 366

By the .Court, Cbawfoed J. This case - comes before us hy a writ of error to the Jefferson County Court. The action was trespass for carrying away a quantity of grain, and was brought hy the defendant in error against the plaintiffs in error before a justice of the peace of Jefferson County. The justice gave a judgment for the plaintiffs in the action, and the fendants appealed to the County Court. On a tidal in the County Court á judgment for the plaintiff was given, and the defendants have sued out a writ of error.

From the hill of exceptions we find that upon the trial of the case one of the defendants, (Grover) having been called and sworn as a witness for the plaintiff, testified that on the 17th day of August, 1851, he sold some oats belonging to the plaintiff and' on his land or improvement — that the oats were sold at public auction for thirteen dollars, out of which sum he (the defendant, Grover) paid five dollars and eighty-two cents as highway tax, to the other defendant, William Mericle, that he kept two dollars for his (Grover’

s) own costs and tendered the balance to Mulks — that part of the oats sold was in the swath and part was not yet cut down — that he, the witness, was a constable of the town of Cold Springs (in which town the property was sold) at the time, and had a road warrant as his authority for selling the oats, which had been given to him by Mericle, the other defendant, who was, at the same time, an overseer of road district number five, in the town of Cold Spring —that the plaintiff, Mulks, lived in the same road district, and that the sale was made after proper notice had been given.

There were three other witnesses sworn and examined for the plaintiff, whose testimony related only to the value of oats at the time of the sale and the quantity in the field. Upon this evidence the plaintiff’ rested his case and the defendant then moved the Court for a nonsuit, which was refused. This refusal is assigned and urged as the first error.

The eoimsel for the plaintiff in error, insists that because the witness, Grover, stated that he was a con- # stable and bad a road warrant for his authority for taking the oats, which, warrant was for the district where the plaintiff resided, and had been given to the witness by the other defendant, Mericle, then an overseer of the same district, the presumption was that Grover’s oats were legal until the contrary was shown by the plaintiff, and that therefore there had been no case made out, and a nonsuit should have been granted. In the case of Hunter vs.

Warner, decided at the present term, we held that a refusal to grant a nonsuit in that case when it should have been granted, was an error for which the judgment would be reversed, but we cannot perceive the application of this rule in the present case. For the purpose of establishing the fact of tahmg the property, the plaintiff called the defendant Grover as a witness, and, on his direct examination, this witness stated that he took and sold the oats, and out of the proceeds thereof, paid a certain amount of road tax to Mericle, the other defendant.

It does not necessarily appear from this witness’ testimony, (but it maybe presumed,) that this highway tax was payable by, or assessed against, Mulks, the plaintiff; but it seems to us that it would have been impossible for the plaintiff to make out a prima facie case moi'e plainly than he did by this witness, and if the statement by him, that he took the property by authority of a road warrant given to him (he being a constable of the town) by his co-defendant, Mericle, the overseer of highways of the district, is to be deemed, a sufficient defence or justification, without any other or further explanation; in most cases of trespass "by ministerial officers under color of process, it would he im- , possible to make out a case tor the plaintiff, because the facts which constitute the cause of action invariably disclose the action of the officer under, or by virtue of, some pretended authority.

Wherever an officer has, by virtne of legal process or authority, taken the property of another rightfully, there can be no hardship or impropriety in requiring him to show the authority by which he acted, and it would be unreasonable to extend the salutary presumption which the law affords in support of the acts of its officers in certain cases, as the dictate of sound policy, to such a case as the one before ns.

The motion for nonsuit having been denied, the defendants called Charles Thorne, who being sworn as a witness, testified that he was the clerk of the town of Cold Spring, and produced the book containing what was claimed to be the record of the organization of road district number 5, in the said town. This entiy or resolution, which declared the extent of territory to be included in road district number 5, was signed by M. B. Williams and Philo Johnson, as commissioners of highways, and was ; attested by Charles Thorne, as town clerk.

To the reading of this entry in evidence the plaintiff objected and the court sustained the objection and rejected the evidence. The plaintiffs in error insist that this evidence was improperly rejected, but we believe the entry or resolution was properly excluded. The act of the Territory of Wisconsin, entitled “

An act to provide for the government of the several towns in this Territory, and for the division of county government,” which was the law in force at the time of the pretended organization of this road district, provided for the choosing, at the annual town meetings in each town, of three commissioners of highways. These officers had the power to organize road districts in their respective towns (Chap. 11,

Part 1, Sec. 1.) Any two of them were authorized to make any order, provided by the wder so made, it appeared that all of the commissioners met and deliberated on the subject, or were duly notified to attend for that purpose. (Chap. 11,

Part 7, Sec. 1.) The order proposed to be read in evidence, did not show a compliance with this requirement, and was therefore properly rejected. The remaining points made by the plaintiffs in error, relate to the exclusion of the tax list and road warrant, offered in evidence by the defendants below.

From the testimony of Nelson Fryer, one of the supervisors of the town of Cold Spring, it appeared that the supervisors of that town, on the 18th day of April, 1851, made and signed a road warrant and tax list, which they left with the clerk, and authorized rhim to make duplicates thereof and sign their names to such duplicates ; that the warrant produced in evidence, was one of the duplicates made out by the clerk, and to which he had signed the names of the supervisors, as directed by them, blit that he, Fryer, did not sign the warrant, and did not see the clerk sign the names to it, and did no.t know when it was made out.

Mr. Thorne,, the town clerk, testified that the paper or warrant spoken of by Nelson Fryer, was made out by him, about two weeks after the meeting of the supervisors ; that he caused it to be delivered to the defendant, William Mericle ; that the warrant presented to him on the trial was a copy made by Mm from one on file, signed by the snpervi-sor; that the one then before him was the same one jtt* - _ , _ t t * _ sent by him to Memcle; that the names of the Supervisors attached or written thereto were in his (Thorne’

s) handwriting, and that he signed their names by their authority, but they were not present when he signed their names. This witness further stated that he was acquainted with the handwriting of William Meri-cle, and that the signature to the endorsement on'the back of the warrant was in Mericle’s handwriting. This was the usual endorsement required ’by the statute and was authority by which the defendant, Grover, claimed to act. After this testimony had been given, the defendants offered in evidence the road warrant and tax list, which had been referred to and examined by the witnesses, Fryer and Thorn.

To the admission of these papers as evidence, the plaintiff below objected, because the warrant had not been signed by the supervisors of the town, and the tax list was without any signatures. The court sustained the objections, and rejected the papers thus offered as evidence. The provisions of the statutes on this subject are plain and may be easily comprehended.

Section twenty-three of

chapter sixteen, requires the clerk to make duplicates of the several tax lists, under the direction of the supervisors, which, duplicates must he signed hy the supervisors. One of these duplicates is required to be filed in the clerk’s office, and the other delivered to the overseer of highways.

Section twenty-four of the same chapter, directs the supervisors to annex to such tax list “ a warrant signed :by them,” <fec. The only question here, is whether the directions given to the town clerk by the supervisors, to sign tlieir names to tlie duplicates, can be deemed sufficient; in other words, whether the warrant offered in evidence can be deemed signed by the supervisors. So far as relates to the tax list, there can be nothing-urged ; it is entirely without signature or authentication.

Section nineteen of

chapter four of the Revised Statutes, provides, among other things, that “in all cases where the written signature of any person is required by law, it shall always be the proper hand-writing of such person, or, in case he is unable to write, his proper mark, or Ms name, written by some person at Ms request, and m Ms presence? This is one of the provisions of the law relating to the construction of statutes, and by it we must be guided in construing the language used in sections twenty-three and twenty-four of

chapter sixteen. The duties imposed upon the supervisors by these sections, are not to be delegated by them ; but a case might exist where a supervisor, being unable to write his name, might direct the clerk, in Ms presence, to sign his name. Here, however, we find no such circumstance. It seems the supervisors did make out and sign one of the duplicates, which was filed with the clerk; but the one given to the overseer of highways, (Mericle,) was neither signed by the supervisors themselves, nor by the clerk, by their direction or request, and im, thew presence.

For all legal purposes, it may be regarded as without signatures, and - it neither vested in the overseer or the constable any authority to take the plaintiff’s property, nor can it afford to them any protection or justification whatever. The County Court committed no error in excluding the warrant and tax list offered as evidence.

The plaintiffs in error in this case are not within the principle which vouchsafes to a ministerial officei protection m obeying the writ directed to him, regardless of tlie jurisdiction or right exercise of the power vested in the tribunal or body commanding him to act, so long as his writ is fair and legal on its face, and does not show a want of authority in the court or officer issuing it. In sucb case, there is a genuine writ issued by the officer or court empowered to issue such process.

But in the case before us, we have a warrant improperly issued, and not authenticated by the signatures of the officers who alone are authorized and required to sign it. We perceive no error in this case, and the judgment of the County Court must therefore be affirmed, with costs.