30 Barb. 605 | N.Y. Sup. Ct. | 1858
The bond executed by the collector Jewell and the defendants, is in conformity to the requirements of the statute. (1 R. S. 346, § 19.) Its condition is, that Jewell shall well and faithfully execute his duties as such collector. These “ duties ” relate solely to the public, and not to the manner of executing his office in those respects in which it relates to or affects the rights or property of individuals. They are defined and declared by statute with great care and exactitude. “Every collector shall within one week after the time mentioned in his warrant for paying the moneys directed to be
The statute directs, that the warrant “shall require all payments therein specified to be made by such collector on or before the first day of February then next ensuing;” (1 id. 396, § 37;) and such was the requirement of the warrant in this case. The duty to pay to the several officers named in his warrant the sums required to be paid to them respectively, within one week after the first day of February, is therefore the duty which the collector and his sureties by their bond undertake shall be performed. So' far as relates to taxes, which “ the collector shall not be able to collect,” the statute provides a mode and the terms, upon compliance with which he may be “ credited by the county treasurer with the amount thereof.” (1 id. 399, § 10.) But failing to secure this credit, the liability of the collector and his sureties upon their bond is at once fixed and certain by his default.
This is the view of the statute and of the liabilities imposed on the collector and his sureties, taken by the court in Muzzy v. Shattuck, (1 Denio, 233.) “I cannot assent,” says Mr. Justice Jewett in that case, “to the proposition, that the liability of the collector is limited by the common law rule applicable to the ordinary case of misfeasance or neglect in the discharge of the duties of office by a public officer.
The provisions of the statute seem to me to recognize the collector of taxes in the light of a debtor for the amount of the taxes directed to be collected, and to provide the manner in which that obligation is to be discharged.” And again: “ The statute imposes a definite liability on the collector and his sureties for the omission to collect and pay, and whether that omission is the result of misfeasance or neglect, unavoidable accident or felony committed by another, I do not think it furnishes any defense to the action.” Onerous as this obli
For the purpose of enforcing that liability as speedily as practicable, the legislature has provided, as I think, for the public benefit, a summary mode of proceeding against the collector. By section 13 of the statute above cited, (1 R. S. 400, § 13,) it is enacted that where the collector neglects or refuses to pay or account for the taxes as unpaid, as required by the preceding provisions,- “the county treasurer shall, within twenty days after the time when such payments ought to have been made, issue a warrant under his hand and seal, directed to the sheriff of the county, commanding him to levy such sum as shall remain unpaid and unaccounted for by such collector, of the goods, chattels, lands and tenements of such collector, and to pay the same to the county treasurer, and return such warrant within forty days after the date thereof, which warrant the county treasurer shall immediately deliver to the sheriff of the county, but no such warrant shall be issued by- the county treasurer for the collection of moneys payable to the town officers without proof, by the oath of such town officers, of the refusal or neglect of the collector to pay the same or account therefor as above provided.”
The 14th section prescribes the duties of the sheriff and county treasurer upon the collection of the moneys, or some part thereof, under the warrant. The 15th section prescribes the duty of the sheriff as respects the return to be made to the warrant where the whole, or but part, and where nothing is collected; and enacts also that where none or but part is collected, “the county treasurer shall forthwith give notice to the supervisor of the town or ward of the amount due from such collector.” And the 16th section provides, that “the
In the case before us the warrant was issued by the county treasurer, but not till after the expiration of more than twenty days after the time when the payment ought to have been made by the collector. It was returned by the sheriff within forty days from its date, wholly uncollected.
The first and principal point on the part of the defendants is, that the issuing of the warrant and its return in strict accordance with the provisions of the statute, were conditions precedent to the right to maintain the action against the sureties on the bond ; or in other words, that the sureties’ obligation, in connection with the provisions of the statute, is a guaranty of collection in case a particular course is pursued.
The language of the bond, it is to be remembered, is, that Jewell “shall well and faithfully execute his duties as such collector.” We have already seen what are the duties of the collector, upon the failure to perform which the breach occurs. Now it is only upon this breach, and after it has occurred, that the treasurer can issue any warrant at all: So the argument of the defendants must go the length of establishing the gross anomaly that the obligations of the principal and his sureties on this bond are distinct and different; that of the former, that he will collect and pay over or account for the taxes within one week after the first day of February; of the latter, that the sum he fails so to pay or account for shall be collectible of him, provided a warrant is issued against him within twenty days after his default, in the form prescribed by the statute, and is executed or returned by the sheriff within forty days from its date, in the manner also prescribed. It is impossible to interpolate the provisions of the statute in regard to the issuing of the warrant and its return, into the
It is now, by its terms, an obligation for the performance of specific duties by the collector: it would then be no obligation for the performance of those duties, but that after his failure to perform them, the taxes should be collectible of him by warrant, if issued, executed and returned in the mode named in the statute. In short, that if the county treasurer and sheriff, on the failure of the collector to discharge his duties, performed the duties devolved on them by statute, and failed to collect the moneys in whole or in part, then the collector and his sureties should become liable on their bond. It is clear that such was not the intention of the legislature, but on the contrary, that the taxes should be regarded as a debt owing by the collector, to be paid or accounted for within a a prescribed period, the liability to pay which, both as against him and his sureties, should be absolute if he made default in paying or accounting within that time. It is for the debt, thus having become absolute, that the warrant may issue; and the liability of both principal and sureties upon the bond remains unaffected by the warrant, except only so far as it may be reduced by its fruits. In my opinion, the position cannot be maintained that the issuing and return of the warrant are conditions precedent to the accruing of the liability of the obligors on their bond.
But it is said that they are conditions precedent to the right to maintain any action on the bond; that is to say, that the right of the supervisor to sue the bond is suspended until the warrant has been issued and returned, and that the right to sue is made dependent upon a strict compliance with the requirements of the statute in the issuing and return of the process.
I have grave doubts whether the right of the supervisor to sue is at all restricted or affected by these statutes. The bond is to him in his official character. His right to maintain an action on it upon its breach, independent of any statute ex-
But it does not seem to me necessary to determine this question, in order to the correct disposition of this case. It may be conceded that the authority of the supervisor to sue is found only in the 16th section of the statute, and that he cannot bring the action till after a warrant has been issued and returned. The question in the case, then, is, whether the laches of the county treasurer in not issuing the warrant within twenty days, discharges the liability of the sureties and takes away the whole right of action. This question is presented in two aspects : 1st. Whether the laches ipso facto is a discharge in law. 2d. Whether the defendants, by-showing actual injury to them by the laches, are discharged in toto, or to the extent of the injury.
Regarding these provisions of the statute -as adopted for the
I have seen no case in which a statute has been held to be both mandatory and directory in respect to the same subject matter or act to be performed under it; and as these statutes are directory, so far as the principal against whom the warrant is to be issued is concerned, they are so also in respect to those to be incidentally affected by it. In this view the statutes are to be regarded as mere regulations adopted 'by the government for the conduct of public officers charged with certain duties, and the laches of those officers in the execution of such duties, cannot exonerate other officers and their sureties from the responsibility incurred by a neglect to perform their duties. (United States v. Kirkpatrick, 9 Wheat. 720; Same v. Van Zant, 11 id. 184 ; Same v. Nicholl, 21 id. 505. Dox v. P. M. General, 1 Pet. 325. People v. Russell, 4 Wend. 570. Seymour v. Van Slyck, 8 id. 403.) The case of The People v. Jansen (7 John. 332) is the only one that has fallen under my observation, in which it has been held that mere laches on the part of the government discharged the surety of a public officer. The facts of that case were extraordinary and peculiar, and seem to have forced the application of the principle adopted by the court. But the case, so
- An apt illustration of the intention of the legislature may be drawn from the provisions of the several sections of the statute. The warrant, by the terms of the 13th section, is not to be issued for the moneys payable to the town officers u without proof hy the oath of such town officers of the refusal or neglect of the collector to pay the same or account therefor.” If the town officers fail to furnish such proof, and the warrant be issued for the amount, payable to the.county treasurer only, is the obligation of the bond discharged as to the moneys payable to the former ?
But the 16th section declares that the supervisor, in the suit to be brought by him, shall be entitled to recover “the sum due from such collector,” and the moneys so recovered shall be applied and paid by the supervisor in the same manner in which it was the duty of the collector to have applied and paid the same. It is obvious that the sum due, mentioned in this section, relates to and means the whole amount which the collector was required by his warrant to collect and
It is insisted, however, that the defendants gave evidence showing that they had sustained an actual injury by the neglect of the treasurer, and that the legal presumption from the evidence on that subject is, that the whole indebtedness would have been collected upon the warrant if issued in time. It is a legal presumption that legal process will produce its legitimate fruit; but it seems to me the point here raised is necessarily involved in those already discussed. If it be sound law that laches is not imputable to the government in such a case as this, then the consequences of the alleged neglect become an immaterial inquiry. A surety must first show in all cases ctra obligation or duty in respect to him to do the act, for the omission of which he complains, as well as the injury from the omission, before he can legally complain ; and here, according to the views we have taken, he fails to show a legal or perfect duty. The plaintiff-in this action is the representative of the
The plaintiff must, therefore, have judgment upon the verdict.
G-bover, P. J., and MaRvin, J., concurred.
Greene, J., dissented.
Judgment for the plaintiff.
Grover, Greene, Marvin and Davies, Justices.]