Bennett v. McWhorter

| W. Va. | Jan 15, 1868

Brown, President.

By the code of 1860, chapter 36, section 1, the taxes assessed in any county were to be collected by the sheriff of the county. By section 2, he was to commence the collection yearly on the 1st day of July, and might after such time make distress. By section 4, no distress could be made for taxes after the sheriff had had more than two years to collect the same. By section 21, the taxes so assessed and collected were to be paid into the treasury, as follows: three-fourths on or before the 15th day of December of the year in which the same were assessed, and the remaining fourth on or before the 15th day of March next thereafter, except, &c.

Such was the law when the appellants and others became sureties for Jesse F. Phares, sheriff of Randolph county, in his official bond in the penalty of 30,000 dollars, conditioned that the said Jesse F. Phares should faithfully discharge the duties of his office as sheriff of said county, then to be void, else to remain in full force and virtue.

The taxed assessed in the county of Randolph for the year 1861, amounted to 6,793 dollars and 1 cent, three-fourths of which should have been paid into the treasury on or before the 15th day of December of that year, and the remaining-fourth on or before the 15th day of March next following; but it was not done and therein the sheriff failed to discharge the duty of his office, and made default. On such default he and his sureties became liable to the State on the bond, for the amounts respectively at the respective dates when due. And the same rule is applicable to the taxes of 1862, which amounted to 6,053 dollars and 62 cents; so that all of said taxes were due and unpaid on the 15th of March, 1863, the latest period for the payment of any part thereof, after which the liability of the sheriff and his sureties on the bond became fixed as to said taxes and to every part thereof, and the right of action was complete by the State to sue on the bond for the penalty to be discharged by the payment of the taxes and damages delinquent. It must be borne in mind, nevertheless, that by the 4th section, the sheriff had two years in which to distrain for the taxes from the time he was to commence collecting, which was the 1st day of July of 1861 and 1862, respectively, so that up to the 1st days of July, 1868 and 1864, respectively, he might distrain for the said taxes of 1861 and 1862, respectively, and thus indemnify himself and sureties as far as possible for the liabilities incurred on the bond for his defaults. And though this right to distrain after default was allowed, yet it did not discharge nor in any way affect the liability of the sheriff and his sureties on the bond for the default that had accrued, neither prevent the State from pursuing her remedies on the bond as soon as default was made. This right of the sheriff of Randolph to distrain terminated at the latest period for taxes of 1862, on the 1st day of July, 1864. By the act of March 1st, 1865, the said sheriff, Jesse F. Phares, was allowed until the 31st day of December, 1865, to collect and pay. into the treasury of the State all taxes and licenses assessed in said county and remaining unpaid for the years 1861 and 1862, and he was authorized to dis-train for the same for the time aforesaid.

Row the important question is, does this act, in extending indulgence to the sheriff and perhaps to his sureties, tie the hand and stay proceedings by the State and her officers in prosecuting her claim on the sheriff’s bond. If so, then consequences may follow which may not have been anticipated as intended.

This statute gives to the sheriff the right and authority to collect and distrain for the taxes of 1861-62, from March 1st, 1865, to the 31st of December, of that year. Here was an important privilege conferred upon the sheriff and his securities which he did not possess at the date of the act, a privilege which had existed before the act and after the sheriff’s default and liability; but which had expired as we have before seen on the 1st day of March, 1863-4, respectively. The liability of the sheriff and his securities on his bond was fixed and certain when the act was passed.

By authorizing the sheriff to collect and distrain for the taxes then uncollected, in the hands of the people, was providing by law a means to pay the debt due on the bond and discharge the liabilities of the sureties therein pro tanto. But the authority and provision would have been unavailing without the time necessary to do it in. But the important question for consideration is not whether the act gave further time to collect and distrain, but whether in doing that it stayed the hand of the State and auditor and prevented a proceeding by suit or notice on the bond for the default and liability antecedent to the act. There is no question that after the liability of the parties became fully and finally fixed by the default on the 1st days of March, 1862-3, respectively, for the taxes of 1861-2, and the right of the State or auditor to sue or notice on the bond complete, yet notwithstanding, the sheriff had the right and authority to collect and distrain for those same taxes until July 1st, 1863-4, respectively, a period of about eighteen months after his liability on the bond had accrued; nor did this right to the sheriff defeat or affect his liability on the bond, or the right of the auditor to proceed thereon while the sheriff was proceeding by distress. And it is not perceived how the act of March 1st, 1865, in extending the time and privilege of the sheriff to collect and distrain could any more operate to restrain the auditor from proceeding on the bond than the statute did under which the bond was given.

But it is said that the act of March 1st also allows the .sheriff until the ?>]'st of December, 1865, in addition to collecting and distraining, to pay into the treasury the said taxes; and so it says, but the sheriff had just as much right to pay the amount of those taxes in discharge of his bond before as after the passage of that act, and still has since the expiration of its period of limitation, and so far, therefore, as the permission to pay was concerned, the act only repeated what could as well have been done without it. The permission to pay into the treasury until actually made and. the liability discharged, no more prevented the auditor from: proceeding by suit on the bond in the one case than in the other.

Uothing can be plainer than that it was never the intention of the legislature in passing the act, in question, to tie the hands of the auditor, or discharge the .sureties on the sheriff’s bond, but simply to secure the payment of the taxes and save the sheriff and his sureties harmless as far as possible by making the tax-payers discharge the obligation ■pro tanto. The act does not say that the auditor shall be stayed from proceeding on the bond, nor is such a prohibition at all necessary to make effective the privilege granted. It is also a settled rule of construction that the State is not to be presumed to have discharged the public rights without express declaration or manifest intention to that effect.

From the foregoing views, I conclude that the act of March 1st, 1865, did not stay the auditor from proceeding by suit or notice on the bond, and that it had, therefore, no effect on the obligation of the securities except to indemnify them to the extent of the taxes that might be collected'by distress; that could not have been done without the act.

I think, therefore, that there was no error in the decree of the circuit court sustaining the demurrer and dismissing the bill, and that the same should be affirmed, with costs and damages to the appellee.

Judge Maxwell concurred.

DECREE AFFIRMED.