| Neb. | Jul 15, 1876
On the first day of May, 1874, the taxes of the defendant in error became delinquent in Cheyenne county, and on the second day of the same month and year, the plaintiff in error, Thomas Kane, the* treasurer of said county, and collector of taxes therein, seized and levied on four locomotives of ,the defendant for the payment of said tax, and for his fees in collecting the same. On the cixth day of the same month the defendant offered to pay all the said tax; but the plaintiff refused to receive the same and release the property so levied, unless it also paid certain fees and penalties* charged against it, which the defendant alleges were illegal and unauthorized by law; and on the day last mentioned, the defendant paid said tax, and also, under written protest, paid all the fees and penalties exacted by the plaintiff, in order to redeem its property from the levy thereon. This action was brought to recover the fees and penalties so paid under
The record shows that the plaintiffs in error voluntarily appeared in the case and demurred to the amended petition, on the ground that the same did not state facts sufficient to constitute a cause of action against them; and this demurrer being overruled, they filed their answer to the petition. This appearance and pleading to the merits of the case, constitutes a clear and absolute waiver of all objections to the jurisdiction of the court. Fee v. Big Sand Iron Co., 13 Ohio St., 563" court="Ohio" date_filed="1862-12-15" href="https://app.midpage.ai/document/fee-v-big-sand-iron-co-6752618?utm_source=webapp" opinion_id="6752618">13 Ohio State, 563. Harrington v. Heath, 15 Ohio, 483.
The next question is: are the sureties in the bond of Kane as treasurer liable for his official misconduct in the exercise of his official duties? The latter clause in the bond provides, that “ he shall faithfully and impartially, without fear, favor, fraud, or oppression, discharge all the other duties, now or hereafter, required of his office by law.” Cooley,‘in his Treatise on Taxation, 500, says that the liability on the bond must be governed by its conditions. 2 Bouvier Institutes, 57-8. But section nine, of chapter YI, of the General Statutes, provides, that “all official bonds shall be obligatory upon the principal and sureties, for the faithful discharge of all duties required by law of such principal, for the use of any person injured by a breach of the conditions of such bond.” And this liability is original and primary, and, therefore, the action may be brought against both the principal and sureties, without having first sued the officer for the tort. Briley v. Copeland, 14 Ill., 38" court="Ill." date_filed="1852-11-15" href="https://app.midpage.ai/document/briley-v-copeland-6947825?utm_source=webapp" opinion_id="6947825">14 Ill., 38. Van Pelt v. Littler, 14 Cal., 194" court="Cal." date_filed="1859-07-01" href="https://app.midpage.ai/document/van-pelt-v-littler-5434224?utm_source=webapp" opinion_id="5434224">14 Cal., 194. Bartlett, v. Hunt, 17 Wis., 214" court="Wis." date_filed="1863-06-15" href="https://app.midpage.ai/document/bartlett-v-hunt-6598989?utm_source=webapp" opinion_id="6598989">17 Wis., 214. And, again, the rule seems to be well
But, are the fees and penalties exacted by Kane, and paid to him by defendant in error under protest, illegal and unauthorized by law? The plaintiffs’ answer shows that these fees and penalties are composed of the following items: five per cent penalty, under section fifty of the revenue laws, $953.50; under section five, chapter XXII, of the General Statutes, entitled “Fees,” $204.70; for seizure and levy, $1.00; and for expenses in keeping the property, $50.00; making a total of $1209.20. Section forty-nine of the revenue laws (Geni. Stat., 916), provides, that if any person neglect to pay his personalty taxes “un.til after the first day of May next succeeding the levy of the tax, the treasurer is directed to levy and collect the same, together with the costs of collection by distress and sale of personal property belonging to such person, in the manner provided by law for the levy and sale of property on execution, and the treasurer shall be entitled to the same fees for service as are allowed by law to sheriffs for selling property under execution.” Section fifty-two of the same act provides, that the treasurer must give notice of the sale “ within five days after the taking, in the manner that constables are required to give notice of the time of sale of personal property in execution: * * * any surplus remaining above the taxes, charges for keeping, and fees for sale, shall be returned to the owner;” and section fifty provides, that “ the treasurer shall proceed as soon after the first day of May as practicable to make such
Now, it seems clear, according to the provisions of the statute, that the legal right to exact the commissions and penalties therein mentioned, depends entirely upon the performance of the services required by sections forty-nine and fifty-two. The service, the performance of which entitles the officer to these penalties, is the collection by “ distress and sale ” of personal property belonging to the delinquent taxpayer, first giving the proper notice of such sale. This is the plain, obvious meaning of the language used in these sections; and as there is no provision made for the payment of either commissions or penalty upon a mere levy being made and the payment of the tax money without a sale, there can be no doubt as to the intent of the law-makers. Vance v. Bank of Columbus, 2 Ohio, 214. Converse v. Jennings, 13 Gray, 77. Wynne v. Miss. and Tenn. R. R. Co., 45 Miss., 569" court="Miss." date_filed="1871-10-15" href="https://app.midpage.ai/document/wynne-v-mississippi--tennessee-railroad-7984078?utm_source=webapp" opinion_id="7984078">45 Miss., 569. Courts cannot extend the operation of such statutes, or allow compensatory fees in such-case, without direct statutory authority.
Therefore, we are clearly of opinion, that the commissions and five per cent penalties, exacted by Kane and paid by defendant to him, were illegal and unauthorized
Judgment affirmed.