17 Ala. 510 | Ala. | 1850
This was a proceeding by motion against Boring, as tax-collector of the county of Macon, and the sureties upon his official bond, for his failure to pay over to the defendant, as treasurer of the county, certain taxes collected by him for the year 1847. The Judge of the County Court appointed a special term to hear and determine upon the motion, which after several continuances was finally disposed of by the rendition of judgment against the plaintiff in error and seven of his securities, for the sum of three thousand seven hundred and sixty dollars and fifty-one cents, the sum remaining unpaid, besides ten per cent, damages, amounting to the sum of three hundred and seventy-six dollars. Upon the trial of the motion the plaintiffs in error by their altornies moved to dismis« the proceeding, which motion being overruled by the court, they filed their demurrer to the suggestion, which was also overruled.
The grounds of objection to the proceedings are, first, that the statute under which they were instituted is opposed to that provision of the federal constitution which declares, “In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved,” &c., as well as to that clause in the constitution of this State which declares, “ The right of trial by jury shall remain in
1. Upon the subject of the constitutional question raised by the plaintiffs in error, it may be remarked that article seventh of the amendments to the constitution of the United States was not intended to apply to the State Governments. These amendments were supposed necessary as furnishing salutary restraints and limitations of power on the Federal Government. Tbey were demanded by the States as safeguards against encroachments on the part of the General Government, and not with any view of depriving the local legislatures of the States of any power they might otherwise legitimately have exercised. Such was the opinion of the Supreme Court of the United States in the case of Barron v. The City Counsel of Baltimore, 7 Peters’ R. 247 — see, also, 8 Wend. R. 100.
2. Neither do we think that the statute in question violates any provision of our State constitution. In our opinion it is clearly competent for the Legislature to create an office, not specially provided for by the constitution, and to subject the incumbent to be tried for his official default before a judge without (he intervention of a jury. The officer is not bound to accept. the office, and if he does so, it is upon the terms and conditions prescribed by the statute creating it. It was early determined by this court, that a man by accepting an office might waive a constitutional privilege. — Adams v. The State, 2 Stew. R. 231. This case decides that the sheriff,' though an officer recognised by the constitution, may constitutionally be denied the privilege of voting except in cases of a tie. It is, however,
3. It is insisted by the counsel for the plaintiffs in error that this action should have been in the name of the Governor, to whom the bond is made payable. The answer to ihe objection is, that the statute expressly provides for the rendition of judgment in favor of the treasurer of the county. Before the passage of this act the mode of putting the bond in suit indicated by the counsel was correct, — (3 Stew. & Por. 15,) — but this act altered the law in this respect.
4. It is further objected that the condition of the bond is not such as the statute requires, and that not being a statutory bond the summary remedy afforded by the statute should not be allowed. We think there is a substantial conformity. The condition of the bond is more specific than the statute requires, but it superadds no obligation not imposed by the statutory condition.
5. Again it is argued that the motion cannot be sustained against seven of the eight securities to the bond — that the judgment must be against all or none. We think this construction of the act indefensible. True it gives a summary remedy in
6. That the statute requires the Judge-of the County Court ’to hold a special court within twenty days after the default of »the. collector, to try such default, does not, as is insisted by the couhldl ffir the plaintiffs in error, deny to him the power to hold such gpefcial court after that time. The reasoning employed to shóWl‘tH’a:f the fifth proposition is not maintainable is equally applicable to this. The object was to provide against delay, and the statute directs the judge to proceed within twenty days; but it would be a construction clearly repugnant to the manifest intention of the framers of the law, to hold that because proceedings were delayed until after the lapse of twenty days they should not be instituted at all, and that the defaulter should be entitled, in consequence of the omission of the County Judge to order a special court, to all the delay against which the act was intended to provide. This provision is directory merely and the proceedings may well be commenced after the lapse of twenty days from the happening of the default. — Treasurer of Mobile v, Huggins, 8 Ala. R. 440; Stickney v. Huggins, 10 ib. 106.
7. The counsel for the plaintiffs in error also argue that the
We may adduce another argument in further coni! this conclusion. The tax-collector is a public offii^/electeo by the people of the county and charged by law with lection of the public revenue, and bound to pay it over to the person appointed to receive it. In respect to the county taxes he is the agent of the county, and after he has proceeded in obedience to an assessment made by the commissioners, before he executed his bond, to collect the taxes and has them in hand, it does not lie with him to say, when sued for the same by one representing the principal, you have exceeded your authority in levying a higher tax than was necessary. The assessment I regarded as sufficient authority to enable me to make the collection, and all the tax-payers acquiesce in it, but it does not justify the county in receiving it from me! He thus acknowl
This view disposes of the several questions attempted to be raised by the counsel for the plaintiffs in error as to the illegality of the assessment, the failure to sign the record, the permitting McGar to place his signature to it, he being a creditor of the county and one of the commissioners, and the signing by the County Judge at the time of the trial.
8. Another exception is, that the answer of Boring, the collector, made to a bill filed by the securities for a discovery, should have been allowed as evidence. It is certainly true that in a controversy between his two sets of securities, — those for the year 1846 and the present plaintiffs in error who were bound on his bond for the year 1847, — Boring would be a competent witness; being equally bound to indemnify each of them against his own default, his interest would be balanced. But such is not the posture of the present case. The controversy here is not between the sureties on the different bonds, but between the obligors on one of the bonds and the treasurer; and to allow the answer as evidence would be to permit a party to make his own admissions or declarations evidence in his own favor in a controversy,to which he is a party, and bound for the recovery, should one be had. It is very clear that the exclusion of the answer of Boring was entirely correct. — Julian et al. v. Reynolds, 8 Ala.
9. It appears by the answer of the defendant in error, which was read in evidence upon the trial in the court below, that he executed to Boring, the collector of taxes, his receipt for eleven hundred and fifty-seven dollars and ninety-one cents, dated the 13th day of January, 1848; which receipt specified that the amount was first to be applied to the payment of a balance then due of the taxes for the year 184G, (for which year Boring was also tax-collector, but with a different set of sureties,) and the remainder, if any, to be applied to the payment of the taxes due for the year 1847, for which the present securities were bound. Of this sum, $32 34 were collected as for taxes due for the year 1846, and nine hundred and thirty dollars and twenty cents for the year 1847. These sums were not paid in money to the treasurer, but the tax-collector executed his receipts which he delivered to him to be used by the treasurer in settlements to be made by him with the tax-payers, which receipts the treasurer agreed to receive as so much money, and thereupon executed his own receipt above mentioned. The balance of said receipt was paid in cash. It further appears that this sum of $930 20 so collected of the tax-payers by the treasurer, embraced $531 55 due for taxes to the State for the year 1847, and the remaining sum of $398 68 was for taxes due to the county of Macon for the same year. These monies were applied by the treasurer to the payment of a balance due from Boring for the taxes of 1846, and the question is whether the same should not be held as a payment for the taxes of 1847 and be credited to these securities? We are unable to perceive how the right of the securities to have the credit for the whole amount of the $930 20 can be affected by the fact that a portion of it was collected as State tax. The securities were equally liable for the payment of the State as for the county tax, and the same bond secured the payment of both. It constituted a portion of the fund for the collection and payment of which they were bound, and if they have the right to insist upon the application of the county tax collected by the treasurer so as to extinguish pro tanto their liability, we think since the treasurer collected the tax to be applied to the payment of taxes due the
Thus stand the authorities upon the point, and since it is quite clear that the American cases show a decided leaning in favor of allowing the sureties on the bond of 1S47 the benefit of payments made from the collection pf taxes for that year, notwithstanding the collector and treasurer have both consented to apply them to the discharge of the collector’s liability for 1846, and as this view is so much more consonant with the justice of the case than the contrary, we have after the most mature de^ liberation arrived at the conclusion that the court below erred in refusing to credit them with the $930 20 so misapplied. It will be remembered that in this case the treasurer himself collected the money from the tax-payers, so that no question can, be predicated upon a want of notice as to the character of the. funds; and the source from whence be derived the payment clearly indicated how it should have been credited. — 1 Amer. Lead. Cases, 142, and authorities.
10. In conclusion, it may be well to add that it is not shown, by this record how much of what is termed the non-resident tax was collected by Boring. He was not bound to collect that portion of the tax which this court has declared in Wiley v. Parmer, (14 Ala. 627,) could not constitutionally be collected, and if he failed to collect it, his sureties cannot be chargeable by reason of such failure.
These vipws have been expressed at greater length than I desired, but sprne of the principles involved are important and of first impression in this court. Moreover, our conclusion is different from that heretofore attained on the former investigation, in respect to the application of the payment to the treasurer.
Let the judgment be reversed and the cause remanded.