Billingsley v. State

14 Md. 369 | Md. | 1859

Bartol, J.,

delivered the opinion of this court.

This suit was instituted against William Billingsley and others on a bond given by him as collector of taxes. The declaration contains no breach of the conditions of the bond. The defendants craved oyer, which was granted and pleaded: 1st, general performance; 2nd, that the bond was not accepted; 3rd, that William Billingsley was not appointed collector; 4th, that there was no assessment of taxes; and, 5th, that Billingsley failed to give bond within twenty days after his appointment. General replications and issues were entered on the 1st, 2nd and 4th pleas, and general demurrers to the 3rd and 5th pleas, on which there was joinder, and the court susfained the demurrers. In the argument of the cause in this court, the ruling of the Circuit court upon the 5th plea was not contested. The only question before us on the demurrers, arises upon the demurrer to the third plea, and we think the decision thereon is correct. The bond of the appellants estopped them from denying that Billingsley" had been appointed collector. On this point this case is not, to be distinguished from Milburn vs. The State, 1 Md. Rep., 12. There the bond contained a recital of the fact that Milburn had been appointed collector, &c. Here, although there is no such recital, yet the condition of the bond is, “that Billingsley shall well and faithfully execute his office as collector of the Stale tax of Calvert county in District No. 2.” This is as clear an admission of the fact that Billingsley was collector, as if that fact had been distinctly stated in terms, and is conclusive upon the appellants.

At the trial of the issues of fact, the plaintiff offered in evidence the account and certificate of H. E. Bateman, the Comptroller, showing the balance of taxes due to the State from Billingsley, the collector, and also the original bond with the endorsements thereon. It was admitted that there were three districts in Calvert county. No proof was offered by the defendants, whereupon the plaintiff prayed the court to instruct the jury:

“That under the issues in this case the plaintiff’was entitled to recover the balance shown by the above set forth certificate of Henry E. Bateman, Comptroller,” which instruction the court gave, and the defendants excepted.

Two grounds have been relied upon by the appellants in support of this exception:

1st. That the account and certificate of the Comptroller was not legal or sufficient evidence to establish the amount due from the collector, because the power to give such a certificate is not conferred upon that officer.

2nd. That by the condition of the bond, the collector was bound to pay to “the Treasurer of the Western Shore,” and there being no such officer to whom he could pay, the condition was impossible, and the bond was therefore void.

(Decided July 29th, 1859.)

1. By the Act of 1841, ch. 23, sec. 48, the Treasurer of Maryland was authorized to make such an account and certificate, which it makes sufficient evidence to establish the amount due, in the absence of rebutting testimony. Prather vs. Johnson, 3 H. & J., 487.

By the 6th Article of the Constitution, establishing thé office of Comptroller and prescribing his powers, many of the duties which before belonged to the Treasurer, were devolved upon him. Among them is “that of superintending and enforcing the collection of all taxes and revenue, adjusting, settling and preserving all public accounts.” In the discharge of these duties, the same powers which were before conferred by law upon the Treasurer, in that behalf, may now be exercised by the Comptroller. The Act of 1841 has not been repealed. Its 48th section remains in force, and is applicable to the Comptroller, who has been charged by the Constitution to perform certain duties which the Treasurer performed under that section. The Act of 1841, and the Constitutional provisions, must be construed together. They are in pari materia, and form one system. Dugan vs. Gittings, 3 Gill, 138, 3 Md. Rep., 54.

2. The second ground of objection, which we have stated, is not presented by the issues in the cause, and, therefore, is not properly before us on this appeal.

Judgment affirmed.