The plaintiff brought replevin to recover from defendant the possession of a large quantity of lumber, and, by means, of proceedings in claim and delivery, got possession of all of the same, through the coroner.
Defendant, in his answer, alleges that he is the sheriff of Carlton county, and that he levied upon and took possession of said lumber-under and by virtue of the tax warrant (Exhibit A of the answer) ;, that E. A. Page, who signed said warrant, was clerk of the district-court of said county at the time said warrant was issued; that the tax in said warrant described “was in all respects duly assessed and levied upon and against said plaintiff, and was and remained delinquent on the first day of April, 1893, and was on that day duly certified as such, and filed with said clerk, by the treasurer of said county.” The reply admits that Page issued the warrant on the day of its date, and that he was then said clerk; but it is alleged “that said E. A. Page had not then and there, or at any other time- or place, any power or authority to make out, issue, or delivér said instrument, or any instrument of like tenor, to said defendant, for-that the county treasurer of said county did not, at or at any time prior to the said making out, issuance, and delivery of said instrument, duly or otherwise make and file with the clerk of said court a list of all or any personal property taxes in said county remaining-delinquent on the first day of April, A. D. 1893, which list was duly or otherwise certified by said county treasurer; and the recitals of said instrument, and each of them, are, and ever were, severally and respectively untrue, and without foundation.” The court below granted defendant’s motion for judgment on the pleadings, and from, the judgment entered thereon plaintiff appeals. ■
1. G-. S. 1878, c. 11, § 58, as amended by Laws 1885, c. 2, § 5 (G-. S. 1891, § 1567), provides: “All unpaid personal property taxes, shall be deemed delinquent on the first day of March next after-they become due. * * . On the first day of April in each and every year the county treasurer shall make a list of all such delinquent personal property taxes, which he shall certify to the clerk of the district court of his county, and the said clerk shall immediately issue his warrants to the sheriff of the county, directing him to proceed to collect the same, and, if such taxes are not paid on demand, said 'sheriff shall distrain sufficient goods and chattéls be*222longing to the person charged with such taxes.” The section further provides for a sale of such goods and chattels on not less than 10 days’ notice. It is contended by appellant that as this statute provides for issuing final process without notice to the party whose property is to be seized, and without giving him an opportunity to be heard, it attempts to deprive him of his property without aue process of law, and is unconstitutional and void. We cannot so hold. What is due process of law is usually a traditional or historical question. Was it due process of law under the common law, and did it remain such up to the time of adopting the constitution V This summary remedy of distress for the collection of taxes has always been known to the common law, and is due process of law. Murray’s Lessee v. Hoboken Land Co., 18 How. 272; Cooley, Tax’n, 432, 438.
2. This statute does not attempt to delegate executive authority to a judicial officer. The clerk of the court is not a judicial officer. Neither was the issuing of this warrant a judicial act. It was competent for the legislature to provide that the clerk should issue such warrants.
3. It sufficiently appears from the body of the warrant (Exhibit A) that it was issued by the clerk of the district court. The fact that .the words “Clerk of said County” are added to the clerk’s signature does not vitiate the warrant.
4. The statute does not require the seal of the court to be affixed .to the warrant. The warrant is not a judicial process. It is the warrant of the clerk, not of the court.
5. The court below did not err in granting judgment on the pleadings. Gr. S. 1878, c. 6G, § 133 (Gr. S. 1894, § 5275), provides that, if the plaintiff in a replevin suit demands the immediate delivery of the property, he shall make an affidavit stating, “third, that the ¡same has not been taken for a tax, assessment or fine, pursuant to a ¡statute.” It is true that this statute applies only to the provisional remedy, and, if that remedy has been wrongfully used, the proper means of redress is by a motion to set aside the proceedings, and «order the return of the property. Because such provisional remedy has been wrongfully used is no reason why the defendant should have judgment on the pleadings. Under our practice an action of replevin may be maintained without resort to the provisional remedy, and, if the -officer executing the distress warrant is liable for *223wrongfully taking the property, there is no reason why he should not be liable in replevin (not aided by the provisional remedy), as well as in trespass or trover. See Dudley v. Ross, 27 Wis. 679. The use of the provisional remedy is prohibited, not for the protection of the officer, but for the protection of the state. “The reason of the rule is found in the necessity for protecting the public revenue, and to prevent delay in its collections.” Wells, Repl. § 224. But, if no fatal defect appears on the face of the distress warrant, the officer executing it in a reasonable manner is not liable in any form of action. Cobbey, Repl. c. 14, § 333 et seq.; Chegary v. Jenkins, 5 N. Y. 376; Hudler v. Golden, 36 N. Y. 446; Niagara Elevating Co. v. McNamara, 2 Hun, 416; Mount Carbon C. & R. Co. v. Andrews, 53 Ill. 176; Adams v. Davis, 109 Ind. 10, 9 N. E. 162. This is simply an application of the general rule that an officer is protected by process fair on its face. See Smith, Sher. 184; Crocker, Sher. § 283; Freeman, Executions, §§ 101, 272. In the case at bar the distress warrant is fair on its face, and protects the defendant. Whoever else is liable, he is not. For this reason the judgment appealed from is affirmed.
6. The defendant does not allege in his answer that he demanded payment of the tax before he made his levy under the distress warrant. It was not necessary for him to plead the fact of demand. It is presumed that the officer did his duty. If he did not make such demand, the plaintiff should have pleaded that fact in its reply, which it failed to do.
There is nothing in the point that said chapter 2, Laws 1885, does not sufficiently identify the statute it purports to amend.
Judgment affirmed.