66 Ga. 408 | Ga. | 1881
By direction of a resolution of the general assembly in 1879, the governor of the state, in January, 1880, issued two executions against John W. Renfroe and sureties, one for the sum of $5,037.81, and the other for $17,761.49, besides interest and penalties ; the first purporting to be on his bond as treasurer of the state under his election in 1876, to fill the vacancy of the preceding treasurer, and the other on his bond under the election of 1877 for the full term. These executions were levied on several tracts of land in the county of Washington, some as the property of Renfroe, and others as the property of Wilson, one of his sureties on both bonds. Thereupon Renfroe and Wilson each filed a separate bill praying that the sheriff of the county be restrained from selling the property levied on until the equities of the cases could be heard before the superior court of Washington county, and then that he be perpetually enjoined from enforcing them. The only party defendant to the bills is the sheriff, and they are brought in his county and the county of the situs of the property of complainants on which he has levied.
The presiding judge of the Middle circuit being disqualified on account of relationship to one of the sureties, the application for the injunction was heard before Judge
His duty in the last resort is to enforce the process of the courts. Code, §51. The idea of making him a party defendant without his consent, is inconsistent with this great duty. He is the executive ot the process of the courts, as well as for the enforcement of all law generally, and the administration and enforcement of law through the courts is at last the great practical benefit which .government confers on the citizen.
Besides it is made his duty to defend suits against any person where the state is interested. Code, §§22, 74; and this has been done in this case — the attorney-general filed the demurrer for the sheriff, and the governor is in through his legal adviser and representative for all practical purposes, and in the only way in which he could well appear for the state.
This court decided that as the sheriff was enforcing the tax executions in Bibb, by levying on property therein, and advertising it for sale there, that he was such a substantial party as to give the superior court of Bibb county jurisdiction. This is a stronger case than that for the jurisdiction. In that case there was another party — the agent who issued the fi. fa. and ordered the levy- — and he resided in another county; in this there is no other party, and cannot well be another ; and if the executions cannot be stopped by prayer for relief against him, they cannot be stopped at all — no matter how large and luminous the equities of complainants may be. Wherever there is a right there must be a remedy; and it must be in the jurisdictional power of some court in the state to apply the remedy and redress the wrong.
First, what does the statute mean? The act of 1876, codified in supplement to the Code, section 20, prescribes that if the treasurer fails to perform the duties of his office, misapplies or uses the funds of the state, fails to account for and pay over any moneys that he may have received by virtue of his office, whereby he becomes liable to the state, it shall not be necessary to sue his official bond, but the governor is hereby authorized to issue a fi. fa. instanter against the treasurer and his securities for the amount due the state by the treasurer, with the penalties and costs, said fi. fa. to be directed to all and singular the sheriffs of said state, and shall be executed by them; and the treasurer and his securities shall have only those defenses now allowed tax collectors against fi. fas issued by the comptroller-general against them.
Section 912 of the Code, enacts that “ executions so issued, (that is against collectors of taxes), shall not be suspended or delayed by any judicial interference with them, but the governor may suspend the collection not longer than the next meeting of the general assembly.”
Section 3668 of the Code, which is the parallel section
These sections, 912 and 3668, seem to have been codified from the tax act of 1804. Cobb’s Digest, pp. 1051-2; the last, 3668, being an exact transcript of the latter part of section 21 of that act, except substituting the words “provisions of this Code” for the words “under this law;” and the other seems to be derived from the latter part of section 24 of the same act, which is, “ and no execution issued by the treasurer in manner herein prescribed shall be stayed by reason of the death of the said collector or his securities, as to the sum due or the.legality of the execution.”
These sections of the Code and the sources whence they sprung have been before this court on several occasions, most, if not all, of which are cited by the exhaustive brief of tue counsel for defendants in error; and it is not easy to reconcile them all with each other. But that judicial interference has been had in some cases, and that the most illustrious names that adorn the roll of the judges of this bench, Chief Justices LUMPKIN and WARNER, have authorized it to be done, and one or both delivered the judgment of this court sanctioning such interference, there is no doubt. 27 Ga., 357; Decisions of WARNER, C. J., in 42 Ga., 428; 46 Ga., 332; 47 Ga., 642; 53 Ga., 588; 54 Ib. 330; 59 Ib. 354, 807; 60 Ga., 61, 508; Wright, Comp. Genl., et al. vs. Southwestern Railroad Company, February term, 1880. In the judgment in the last case, my late venerable colleague, Chief Justice WARNER, fully concurred ; and my late learned associate, Justice BLECKLEY, as well as the late Chief Justice, always held that where the tax was unconstitutional, against law, there could be interference and the courts should interfere.
When, then, the act of i%j6supra remanded the treasurer to “ those defenses ” which the tax collectors might make to executions issued against them, the meaning must have been those defenses which the courts had allowed them to make and tax payers to make under the prohibitions of judicial interference. In other words, the construction which the courts had put on these sections of the Code entered into the legislative mind, and the defenses allowed the other defaulters were allowed the treasurer and his sureties.
This must be the meaning; otherwise the words “those defenses” in the act of 1876 are meaningless. They could not have referred to the clause that “ the governor may suspend the collection not longer than the next meeting of the general assembly,” for that can hardly be called one defense; certainly it is not “ those defenses;” it is not more than one defense, if a defense at all. It is a mere petition for time. It is grace optional with the governor ; it is no legal defense to an execution about to sell out a defendant, much less is it “ those defenses ” which the act of 1876 says that the tax collector had, and which it gave to the state treasurer and his sureties.
What, then, are those defenses which the tax payer or collector and sureties might make in the courts?
First, they might resist an unconstitutional exaction,
Perhaps other illustrations of what may be termed exceptions to the general rule, our reports will furnish, but the above seem to us deducible clearly from those reports, and sound and irresistible as propositions almost self-evident; if not entirely so.
In regard to the first execution, that for 1876, the facts are that Renfroe never signed a bond at all, that Governor Smith never accepted any, and the execution is based on a paper as a treasurer’s bond which the principal never executed, and the state never accepted. It is a contract under seal never made by the obligor and never delivered to or received by the obligee. This appears from the face of the paper itself, from the deposition of governor Smith, and the certificate of,Mr. Avery.
The act of 1876 did not contemplate a summary and irresistible fieri facias to issue upon such an unexecuted paper. The execution is not then within the statute, is not authorized by that or by any other law, and is in conflict with all law of which this court has ever heard. The so-called bond is no bond, either statutory or at common law, and has no more force than a blank. No execution to make money out of anybody can be based on it, and to arrest such an execution the judiciary of the state must.intervene.
This court has repeatedly ruled on this point and been strict in holding that to make a valid statutory bond there must be a rigid compliance with the statute ; 1 Kelly, 580, and subsequent decisions passim ;■ — and that, where no summary remedy with very limited defenses is. allowed, but where regular suits on the bond, and verdict and judgment, after trial by jury, must precede final process.
Of course the ruling should be at least as strict where, without trial, the execution is issued instanter. There are other failures to comply with the statute in the verbiage of the bond and other requirements of the law touching it; but these are sufficient to show that it is not a valid statutory bond.
The meaning of this statute or section of the Code, we think, is to be gathered from the earlier decisions of this court, whence the codifiers drew it. Those decisions were that the bonds were valid, though not in accordance with the statute, but when one recovery was had on the bond for the benefit of one person aggrieved, then it was exhausted, and all others, however much damaged, were remediless. In codifying these decisions, the compilers, followirig the Alabama code, by direction of the statute which created them, gave these remedies to all suitors successively until the penalty was exhausted. . 1 Kelly, 574; 5 Ib., 499.
This summary remedy by the state against the treasurer was not in the contemplation of that act; for that is the creation of the act of 1876, long afterwards. Nor does any summary remedy by the state against any public officer seem to have been included. The section gives to persons aggrieved all the remedies which they might have maintained on the official bond, and none of them ever had any summary remedy against any public officer on his official bond. All must sue regularly, and prove the breach and recover the damage proved to the satisfaction of court and jury after trial. And the context of the section — those sections preceding and following 167 — show that the bond is to remain valid for such remedies and such only as persons wronged by these officials "might have.
This is the extent of the ruling in 46 Ga., 325 and 350, and those cases rested on a special act in regard to the officers of the state road. There, too, the court would not permit the parties to go behind the face'of the executions. But these-executions show on their faces that a special joint resolution was passed, fixing the amount- of liability and requiring the Governor to issue the executions for those sums. Is not this special legislation — case
If suspension of the execution by the governor and appeal to the legislature is the only redress of the treasurer and his sureties, it would seem that the appellate power had taken the initiative, and prejudged the case it was to try. The general law cannot be and ought not to be allowed to be so varied as to meet the emergencies of special cases, either to confer favors or to inflict retroactive penalties upon citizens or officials. Unquestionably under patriotic impulse, and to redress what the general assembly deemed a great wrong, the special resolution was passed, but the prohibition against varying general laws to suit special cases, is put in the fundamental law for the very purpose of preventing impulse from controlling legislation, or emotion towards individuals, whether of indignation or sympathy, from influencing the cool current of legislative judgment. It is true this is a joint resolution, yet it is legislation and has accomplished the purpose of special legislation, to-wit: to have these fi. fas issued for certain amounts and collected out of' certain people. Suppose it had passed a special act to the effect that execution issue for certain sums against Renfroe and his sureties,' and that no defense should be made to their collection, and that no court should arrest the proceedings, who would uphold the law as constitutional or in accordance with the great underlying principles of right in all civilized societies, where private property is protected by law? And yet this is precisely what has been done, except that
We hold; therefore, that the courts may interfere, and ought to do so, by bill in equity and injunction, if there be no adequate remedy at law, and if thereby the equities set out in the bill authorize it. It is alleged that affidavits of illegality have been tendered and refused by the sheriff, th.at the lands of complainants are divided among divers tenants, that they have crops growing, and if dispossessed, multiplicity of suits would result, that the sale of their property, however illegal, would cloud their title, that the sheriff could not respond to the damage done, not having property enough, and his bond not covering the half of the executions; and in view of these allegations the complainants invoke the restraining order of the chancellor until all the questions made can be fully tried.
We cannot see^ that the chancellor erred in granting that restraining order. It may be that the treasurer and surety are liable to respond to the state'for the money made by the use of the public funds. It may be that, on proper pleadings, by answer, or answer in the nature of cross-bills to these bills of complainants, recovery maybe had by the state for such sums as may have been received by the treasurer and his sureties on account of. interest which he made by the use of public money. On these questions we decide nothing. All that we do decide is that on neither of these bonds can these executions summarily make the money which is therein specified, and that until the whole case can be fully and fairly heard in open court, the chancellor was right to grant the ad inte rim injunction.
I" Judgment affirmed.