Clary v. Grayson

7 La. 371 | La. | 1834

Bullard, J.,

delivered the opinion of the court.

The act of the Legislature, approved, March 14th, 1832, providing for the establishment of the new parish of Carroll, composed of a part of that of Ouachita, and a part of Concordia, provided among other things, that the amount of parish tax for 1831, due by the inhabitants of that part of the parish of Ouachita, forming the parish "of Carroll, should be collected by the. sheriff of Ouachita, and by him paid over ta the sheriff of Carroll. In pursuance of that statute, the present suit was instituted by the one sheriff against the other, alleging that the defendant as sheriff of the parish of Ouachita, has collected the tax to tbe amount of three thousand dollars, and refuses to pay it over. The plaintiff prays judgment for that amount, and one thousand dollars damages.

In the division of the parish of Ouachita, and establishment of the parish of Carroll, in 1832, the law provides that the taxes for 1831, iu that part embraced by the new parish of Carroll, shall he collected by the sheriff of Ouachita, and by him paid over to the sheriff of Carroll: Held) that the sheriff who came into office in Ouachita, after the taxes were responsible18 for their payment; hedcPiieétedUPs deputy of his predecessor, be is not liable ex-cfpah° hlspr111"

The defendant put in for exception, that he was not the sheriff, and had no authority to collect the taxes in question, but that Jonathan Morgan was the sheriff at the time, and the only person responsible. This exception being overruled, the defendant pleaded on the merits, and judgment being rendered against him, he appealed.

The evidence shows, that Morgan was tbe sheriff of Ouachita, at the time the tax of 1S31 was collected, that a part of it was collected by tbe present defendant, then acting as deputy, and by other deputies, and that the amount was paid over by him to the parish treasurer, and credited to the account of Morgan, his principal, and that he entered on the discharge of his duties as Morgan’s successor, on the 24th of March, 1832, after which period it does not appear, that any part of the tax was collected.

It appears to us clear, that the statute did not impose on the present sheriff, the duty of collecting the tax, because he was not sheriff at the time it was collected, and that for the sums recepre^ by h™ as deputy, he was- responsible only to his principal. In the capacity in which he is sued, he shows drat the law imposed no duty upon him in relation to that tax, because he was not the official collector for the tax of 1831, t t ¶ • • ' and having paid over to his principal the sums collected, as deputy, he is no longer accountable even to him.

It has been urged, that Jonathan Morgan, being functus officio, is no longer liable to be sued as sheriff To that it may be answered, that if tbe statute in question, imposed a duty upon him, which he neglected to perform, he rendered himself personally liable. It is, however, certain, that he was out of office before the passage of the act,

We forbear to touch the question, whether according to the fair construction of the statute, or the general principles of law, the two parishes are bound to make an equitable partition of any funds existing in their common treasury at the time of their separation. That question does not properly arise between the present parties.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and judgment is here rendered in favor of the defendant, -with costs in both courts.