25 Cal. 520 | Cal. | 1864
This is an action brought by the District Attorney of Yuba County, in the name of The People of the State of California, upon the official bond of the Tax Collector of that county to recover a certain amount of taxes, part belonging to the State and part to the county, alleged to have been collected by the Tax Collector and not paid over by him .to the County Treasurer, as required by law. The defendants demurred to the complaint upon several grounds, which will be noticed in their order.
1. The objection to the effect that this action should have been brought by the Attorney-General instead of the District Attorney, is not well taken. The thirty-sixth section of the Revenue Act of the 17th of May, 1861, (Statutes of 1861, p. 431,) provides that: “ If any Tax Collector shall refuse for a period of five days, or wilfully neglect to make the payments and settlements with the Treasurer and Auditor of his county, as in this Act specified, he and his sureties shall be held liable to pay the full amount of taxes charged upon the assessment roll; and the District Attorney, of his own volition, or on being instructed to do so by the Controller of State, or by the County Court or Board of Supervisors of the county, shall cause suit to be brought against such Tax Collector and his sureties for the full amount due on the Auditor’s books. And if any such suit is commenced, no credit or allowance whatever shall be made to such refusing or neglecting Tax Collector for the delinquent taxes outstanding.” Under this section there can be no question but that the District Attorney had full power and authority to bring this action. The terms of the Act are plain and explicit, leaving no room for construction. Upon the happening of the contingency named at the commencement of the section, it is imperatively made his duty to bring the suit “ of his own volition.” Whether the money sued, for may belong to the State or county, or part to the former and part to the latter, or whether one suit is sufficient, or separate suits are necessary where the money belongs in
2. The second and fourth grounds of demurrer are to the effect that the money or taxes sued for, being in part due to the State and in part due to the county, cannot be recovered in a single action, in the name of The People of the State, and that separate suits are necessary—one in behalf of the State and the other in behalf of the county.
In considering this question, counsel for appellants turn aside from the statute, and argue from the principles of the common law, for the purpose of establishing the alleged misjoinder. But, in our judgment, the question finds a ready solution in the provisions of the Revenue Act, and no resort to common law principles is made necessary. The Tax Collector does not report to or account with any State officer for the taxes collected by him. It is his duty, upon receiving the duplicate assessment roll, to collect the taxes therein charged against the taxpayer's of his county; and it is his duty, on the first Monday of each month, to pay to the County Treasurer all money in his hands belonging to or collected for the use of the State or county, and take his receipt therefor, and on the same day deliver the same, together with a true and correct account, under oath, of all his transactions since his last settlement to the County Auditor; and on the first Monday in December of each year it is made his duty to attend at the County Auditor’s office, with his duplicate assessment roll, and make with the County Auditor a final settlement touching all the taxes charged against him on account of such assessment roll. If he fails to do all this he and his sureties become liable, upon his official bond, to pay the full amount of all taxes charged against him on account of said assessment roll, without any credit for outstanding delinquent taxes—said amount to be recovered by suit upon his bond. Thus the Tax Collector neither accounts to nor pays over any money to any
3. The next ground of demurrer is to the effect that there ‘is a misjoinder of parties defendant, because J. Gr. Eshom, one of the sureties upon the bond, is not made a party.
The bond upon which the suit is brought, as will more fully appear hereafter, is joint and several. The fifteenth section of the Practice Act provides that “ persons severally liable upon the same obligation or instrument * * * may all, ■or any of them, be included in the same action, at the option of the plaintiff.” This section changes the common law rule, that one or all, and not any intermediate number, may be sued. Under this section a plaintiff may, at his election, sue one or more, or all the persons severally liable upon the same obligation or instrument.
4. It is next claimed that the complaint is ambiguous and uncertain because it does not designate what portion, if any, of the money sued for was collected by the Tax Collector on account of foreign miners’ licenses, for which amount, if any, the sureties upon the bond in suit were not liable.
• There is no averment in the complaint showing that any of the money sued for was collected by the Tax Collector on account of foreign miners’ licenses, nor is there any averment from which it can be inferred that any money realized from that source constitutes a part of the amount for which judgment is asked. It is true that under the law relating to the Tax Collector of Yuba County (Statutes of 1855, p. 164) he is required to give the same bonds which were theretofore required of the Sheriff in his capacity of ex officio Tax Col
5. It is next claimed that the complaint does not state facts sufficient to constitute a cause of action; first, because the bond sued on is not a bond required bylaw, but is a mere voluntary bond, and therefore not binding upon the defendants ; second, because there is no averment that the taxes were legally assessed by the proper officers. These positions the learned counsel for appellant has also failed, in our judgment, to maintain.
Prior to the first day of May, 1851, taxes were collected by the County Treasurer. From that time until the office of Tax Collector was created in Yuba County (April 27, 1855) the taxes were collected by the Sheriff. By the Act of the 27th of April, 1851, (Compiled Laws, 711) the Sheriff of Yuba County was required to give a bond in the sum of fifty thou
It is claimed by counsel for the appellants that under the statutes above cited the Sheriff was never required to give any bond as Tax Collector, except the bond for fifteen thousand dollars for the performance of his duty as Collector of the foreign miners’ license tax, and hence that the Tax Col-' lector is not required bylaw to give any bond except the bond for fifteen thousand dollars. Such is not the proper construction. By declaring that the Sheriff and his bondsmen should be responsible for all taxes collected by him, the Legislature in effect declared that his bond as Sheriff should be his bond as Tax Collector. The same individual was vested with two offices, but for the sake of convenience he was required to give but one bond. That bond pertained no more to one office than it did to the other, but pertained equally to both. It was his bond as Sheriff and his bon’d as Tax Collector, and when he gave it he gave it as Tax Collector as well as Sheriff. Such being the cáse, the law of 1855 requiring the Tax Collector to give the same bonds which had been previously required of the Sheriff made it obligatory upon him to give two bonds— one in the sum of fifty thousand dollars and the other in the sum of fifteen thousand dollars. Pursuant to this requirement of the statute the bond in suit was given, and the same, so far as the question under consideration is concerned, is binding and obligatory upon the principal and his sureties.
6. It is next claimed that the principal, by reason of the peculiar phraseology of the bond, is not bound thereby, notwithstanding he has signed it, and that, therefore, his sureties are not.
The principal and his sureties all sign the bond and bind themselves in the sum of fifty thousand dollars, “ to be paid to the State of California in the following manner and proportion then follows a specification of the several amounts for which each surety respectively binds himself, the aggregate amounting to the sum of fifty thousand dollars, without any specification as to the amount for which the principal is bound, and it is argued by counsel for the appellants that by reason of the absence of any specification as to the principal, he is not bound. By this process of reasoning the learned counsel for the appellant substitutes the exception for the rule. The specifications are limitations upon the general clause which -precedes. Strike them from the bond and the principal and
7. It is next claimed that the bond in suit is a joint bond only and not joint and several, and upon that hypothesis, several other points are made, which, in view of the conclusion we have arrived at upon the first, it is unnecessary to notice in detail. The language which characterizes the liability of the obligors is as follows: “ For which sums respectively, unto the said State of California, in the manner and in the proportion hereinbefore set forth, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents.” If, by the use of words, a joint and several liability can be created, it would seem that it has been done in this instance. We certainly know of no words more apt to express that idea than those used. They have been long used for that purpose, and we are not aware that they have lost their force and vigor. In this connection our attention is called to the case of Sacramento v. Dunlap, 14 Cal. 421, and the case of The People v. Hartley, 21 Cal. 585. The first case, as reported, does not contain a copy of the bond sued on. In the opinion of the Court it is declared to be a joint, and not a joint and several bond; but as a copy of the bond is not given, that case throws no light upon the question under consideration. In The People v. Hartley, a copy of the bond was given, and the words “joint and several” were not used. The word “severally” was used, which the Court read as applying only to the various sums for which the sureties bound themselves, and not as giving legal character to their liability. The language used was less explicit than that found in the present case, and the conclusion to which the Court arrived in that case cannot be regarded as establishing a rule for the decision of this, where the language is too clear and precise to afford any room for construction.
Judgment affirmed.