State v. Harney

57 Miss. 863 | Miss. | 1880

Lead Opinion

George, C. J.,

delivered the opinion of the court in the case of the State taxes.

At the general election, in November, 1873, W. H. Har-ney was elected sheriff of Hinds County for the constitutional term commencing on the first Monday in January, 1874. He executed an official bond as sheriff, as required by law, and afterwards, on January 28,- 1874, executed, or attempted to execute, a bond as tax collector, which was accepted and approved by the chancery clerk of the county. This is an action on this last bond against Harney and his sureties for a balance of unpaid taxes due the State collected by Harney during his term of office. The pleadings are very confused and complicated, arising, in great part, from the unnecessary separation of the several defendants, of whom there were eleven, in the pleas and rejoinders and demurrers; and from the further fact that'matters of defence, which could have been made under the plea of non est factum, sworn to, were set out specially, requiring special replications to answer them. We shall not notice in detail these voluminous pleadings, extending over two hundred pages, but, at the request of counsel, proceed to decide the points of law necessary to a final determination of the case.

It is first objected that the bond sued on, if legally executed, which is denied, is nevertheless^ voluntary bond without consideration, and therefore not binding on the obligors. This objection is based on the omission in the Code of 1871 to require any other bond from a sheriff than his official bond provided for in § 219. It is claimed that the bond required in that section is the only bond which the sheriff was required or even authorized to make, and, that being liable on this bond for taxes collected by him for the State, as was decided in State v. Matthews, ante, 1, he is not liable, nor are his sureties, on the bond executed specially in his character as tax collector. This. position cannot be maintained without overruling at least six cases decided by this court with reference to tax collectors’ bonds taken under the Code of 1871. In Byrne y. State, 50 Miss. 688, a sheriff and his sureties on a tax collector’s bond executed by him under the Code of 1871, were held liable for the State taxes collected and not accounted for by him. The same conclusion was reached, as to county taxes, in Taylor v. State, 61 Miss. 79. In Lewenthall v. State, 61 Miss. 645, the validity of a sheriff’s bond as tax collector was also fully recognized, and such a bond was held to be an official bond from which the sureties could get relief, as in other cases of official bonds, under Code 1871, §§ 315, 316. In French v. State, 52 Miss. 759, the court held that, under the Code of 1871, the failure of the sheriff to give a tax collector’s bond was not a cause of forfeiture of his office under § 319 of the Code, and in the same case held that tax collectors’ bonds were valid, both for State and county taxes, and cited and reaffirmed Byrne v. State, ubi supra. In French v. State, 53 Miss. 651, an action on a tax collector’s bond given under the Code of 1871 was defeated, upon the ground that it was unlawfully instituted, both the court and the counsel recognizing its validity. The next case in which the validity of these bonds was contested in this court is Harris v. State, 55 Miss. 50. In this case, the county of Rankin sued on the tax collector’s bond for a balance of county taxes not accounted for. The sheriff’s term commenced on the first Monday in January, 1874, and the bond was dated Oct. 17 following. It was objected to the action that the bond was given too late, and was moreover voluntary, there being no law authorizing or requiring it. The court said: “A careful perusal of chapter 22 of the Code clearly indicates the legislative will that the sheriffs, as tax collectors, shall give bonds. Thus § 1725 directs suit on the tax collector’s bond for a failure to pay into the State and county treasuries the taxes collected by them. So § 1752 directs suit to be brought on the collector’s bond, against principal and sureties, for a failure or omission to collect the taxes. Whilst there is a clear expression that bonds must be given for the good conduct of the officer, the Code is silent as to the time and the penalty. All other particulars are provided for. ... It is impossible to say that, within the purview and intendment of such legislation as this, it was illegal for Shelton [1;he sheriff] to have executed the bond; and that the State, having participated in the illegal transaction, cannot maintain an action upon it. Unmistakably the allusion in the statute was to the bond for the indemnity of the State and county. Shelton and his sureties so understood it; so did those appointed by law to accept and approve it. It was so understood and acted upon throughout the State.” The court then proceeded: “Great strength is given to these views by§ 1376, which provides that, when a special tax may be levied for county purposes, the board of supervisors may require the collector to give bond for the faithful collection and payment of the same.” In James v. State, 55 Miss. 57, this case is cited and confirmed. In State v. Matthews, ante, 1, which is erroneously supposed to give countenance to the idea that tax collectors’ bonds are invalid, it is said with reference to Harris v. State: “It is true, as stated in the opinion in that case, that there is abundant evidence in the Code of the legislative assumption of the fact that there was a tax collector’s bond, but there is no requirement by the Code that a tax collector’s bond should be given, except in the state of case provided for by § 1376.” We are asked now to disregard all these cases containing express adjudications in some, and a clear recognition in the others, of the legality of tax collectors’ bonds, because there is no requirement of them in the Code of 1871. In five of the above cases the validity of the tax collectors’ bonds is recognized, although it is admitted that there is no provision in the Code of 1871 requiring their execution. We might well rest on the authority of these decisions of this court in favor of the validity of these bonds and on the maxim stare decisis. But, as they are assailed rvith great earnestness and ability, we will proceed to state the reasons which place their validity beyond successful impeachment.

It has been shown, in the quotations we have made from Harris v. State and State v. Matthews, that there is a plain recognition in the Code of tax collectors’ bonds for the security of State and county taxes, notwithstanding there is no positive requirement for their execution. But that such bonds may be given, and that suits on them are directed to be instituted to recover defalcations in State and county taxes, are undeniably plain provisions in the Code. The only difference, in the provisions of the Code, between them and other official bonds is that there is no provision fixing their penalty and time of execution, and no forfeiture of office imposed on the sheriff for a failure to execute them. Whether the failure to make these provisions was the result of oversight or design, cannot affect the force and validity of the enactments in the Code to which we have referred. These enactments are insufficient to compel the execution of these bonds as a condition precedent to the enjoyment of the office of sheriff and tax collector, but they are ample to validate them when voluntarily executed. They refer to legal and valid, not to invalid, bonds. Certainly the legislature did not direct suits to be brought on invalid bonds; and certainly the recognition by the legislature of such bonds as proper makes them legal; and, if such bonds are legal whose execution, acceptance and enforcement are recognized by law, they cannot be invalid. There is no other test of , the validity of a contract, except that it is in accordance with law. What the law commands or permits, as in accordance with its behests, cannot be invalid. Tax collectors’ bonds, executed under the Code of 1871, can stand this test, and must be treated, when given, as valid and obligatory contracts, unless we impute to the action of the legislature the absurd and contradictory effect of recognizing as good that which is invalid, only for the want of such recognition, and, unless we further impute to the legislature the folly of directing a suit to be brought on an instrument which must be held invalid for want only of the legislative sanction to its execution. These truths are so plain and self-evident that the validity of tax collectors’ bonds would be at once acknowledged, but for an idea, growing out of State v. Bartlett, 80 Miss. 624, that the sole consideration of an official bond is that it is required to be executed as a condition precedent to the enjoyment of the office, and that without such consideration it is void. But it is well settled that an official bond, which may be lawfully taken, — that is, taken without violating law, though not required by law to be executed, — if voluntarily entered into, is valid. United States v. Tingey, 5 Peters, 115; Socy v. State, 38 N. J. 324, and authorities there cited. These cases hold that the actual enjoyment of the emoluments of the office is a sufficient consideration for supporting the bond, and that it is not essential to a valid consideration to support it, that it should be required by law. But if such a bond was without a valuable consideration, it would not follow that it would not be good when executed under the Code of 1871. That a consideration is necessary to support a contract results alone from a rule of law requiring it; and hence, as it has been shown that the Code of 1871 recognizes a tax collector’s bond as valid and enforceable, if it be regarded as without consideration, then the Code validates the bond, though without consideration. The existence of valid contracts without a valuable consideration is not unknown either to the common or the civil law. In the latter, a species of contract consummated with certain formalities, and denominated a “ stipulation,” is valid without a valuable consideration; and in the common law, from the earliest period, the obligor in a sealed instrument was estopped to say that it was without consideration, which is the same thing as saying that a consideration is not necessary to support it. And this is the view stated in 1 Chitty on Contracts, 6, and by Lord Denman in Cooch v. Groodman, 2 Q. B. 580, 599. But for a statute in this State, bonds would be unimpeachable for want of consideration, and by a provision in the same Code in which this enactment is found, tax collectors’ bonds are recognized as valid; and if they are to be considered as without consideration, they are by the Code made valid, as at common law, without it. Clearly, a requisite to the validity of a contract introduced by statute, may also be dispensed with by statute.

But it is urged that, as in State v. Matthews, ante 1, it was held that the sureties on the sheriff’s bond were liable for his failure to pay over State taxes collected by him, it was also necessarily held that they were not liable on his tax collector’s bond. Such is not the effect of that decision. It has been seen that the result of the decisions in this court supporting the opinion in that case, is that the Code of 1871, recognized the existence and validity of tax collectors’ bonds, but that there was no provision in the Code by which the execution of such bonds by sheriffs could be enforced. The execution of a sheriff’s bond alone could be enforced by a forfeiture of the office in case it was not given. Since, then, as was held in French v. State, the tax collector’s duties were inseparably incident to the sheriff’s office, and were a part of the sheriff’s official trust, it would follow, as held in State v. Matthews, that any failure of the sheriff to discharge any of his official duties with respect to taxes, would be a breach of his official bond, which required him faithfully to perform and discharge all the duties of the office of sheriff and all acts and things required by law, or incident to said office. This was the only bond which was required by law of the sheriff, the only one to secure the due execution of which any provision was made. It would follow that, in case no tax collector’s bond was executed, there would be no security for the collection of the public revenue unless the sheriff’s bond was a security. It was impossible, therefore, to resist the conclusion reached in State v. Matthews, that the sheriff’s bond was a security for the collection of the taxes. No other security was with certainty provided, and the discharge of the duties of tax collecting was also plainly within the conditions of the sheriff’s bond. Such being the law, it was rightly held in that case that the execution of a tax collector’s bond did not narrow the scope of the sheriff’s bond. Any other ruling would have left the scope and obligation of the sheriff’s bond to be determined, not by law and the terms of the bond itself, but by the performance or non-performance of an act by the sheriff which he might or might not perform at his will. Being thus liable on his official bond for the collection and paying-over of the taxes, and it being also well settled that a tax collector’s bond, if given, would be lawful and obligatory, no other result can be reached than that the tax collector’s bond is a cumulative security for the collection and paying over of taxes, and that the State or county has a remedy on either or both. What may be the respective rights of the sureties on these bonds as to contribution is not before us. The conclusion we have reached, as will be seen from the reasoning on which it is based, applies only to bonds executed under the law as it stood in the Code of 1871. The subsequent enactment, in 1876, of a statute requiring sheriffs to give tax collectors’ bonds, as a condition to entering upon their offices, has the effect to confine remedies for acts and omissions which would be breaches of such bonds to the obligors therein.

We will now proceed to determine the questions raised in relation to the execution of the bond. It is alleged on the part of the obligors that they executed a tax collector’s bond for Harney, in which each obligor was separately bound for a specified amount, the aggregate of the several amounts equalling the penalty of the bond; and that, after they had executed it in this way, one Taylor, who was to be appointed a deputy sheriff by Harney, cut off the signatures of the obligors and attached them to the paper which constitutes the bond sued on, which is joint as well as several, and that this was done without their knowledge or consent; and that they never knew of this until this action was brought. We.do not doubt" that these facts alone constitute a good defence to the action, and made the bond sued on not the bond of the obligors. To obviate the effect of this, it is replied by the State (1) that the bond cut off from the signatures by Taylor had become mutilated and almost illegible, that for this reason it was copied verbatim and the copy attached to the signatures, and that the bond as it now appears is exactly the same in all respects as the bond executed by the parties; (2) that all the defendants except two, after the change was made by Taylor, made a joint affidavit, which was indorsed on the bond, as it was constituted by the change. This affidavit was substantially as follows: “ Personally appeared before me, M. Peyton, Clerk of the Chancery Court of Hinds County, John H. Odeneal and [naming the others], sureties on the within bond, who each, being duly sworn, declared on oath that they are worth in freehold estate over and above all their- just debts and liabilities and legal exemptions, property in this State, subject to execution at law, to wit [then follow the names and seals of each of the obligors with a sum in figures opposite his name, to represent the value of his property]. Sworn to and subscribed before me this 28th day- of January, A. D. 1874. Signed, Murray Peyton, Clerk.” This bond was also accepted and approved on the day this affidavit was made. It is insisted that the replications setting up these facts are not good answers to the pleas above set out, because they do not aver that the affiants knew of the change in the bond when they made the affidavit. But we do not consider this a just view. By the act of March 11, 1872 (Acts 1872, p. 80), the chancery clerks were required in all cases to take the written examination, under oath, of sureties on official bonds approved by them, and to record these examinations with the bonds in their offices. They were not allowed to approve a bond without such examination as to the solvency of the sureties, and hence such examination became a condition precedent to such approval. When therefore sureties came before a chancery clerk and made an oath indorsed on the bond, in which it was recited that they were “ sureties on the within bond,” it must be regarded as a solemn affirmation on their part of their suretyship, and a request by them to the clerk to accept and approve the bond in the condition it then was as their act and deed. They cannot in such a case be permitted to aver that the paper on which such affidavit is indorsed, in the condition that it then was, is not their bond by reason of their ignorance of any alteration or change in the bond. They are conclusively presumed to know all that appears on the face of the paper, and to have assented to it in its then condition. Any other rule would leave the door wide open for the perpetration of fraud on the State, and render the security of official bonds precarious in the extreme. Support for this view will be found in New Orleans Railroad Co. v. Burke, 58 Miss. 200. As to the other two sureties, Bruce and Hill, it does not clearly appear from the replication whether or not the separate paper on which they justified as sureties was attached to the bond at the time the affidavit was made. If it was not so attached, ' the above rule would not apply to them, unless their names appearing in the affidavit made by the other sureties were written by themselves after the change in the bond was made. In that case, their signatures, so written in the affidavit, would have the same effect as the affidavit has as to the other affiants. Of course, if it could be shown that they had knowledge of the change in the bond at the time they made the affidavit, or consented to the change, they would be concluded.

We regard also the first matter of replication, above set out, as a good answer to the pleas. The cutting off of the signatures from the first bond and the attaching of an exact copy in its stead was not the act of the State. It was the act of a person into whose hands it came before it reached the chancery cleric for acceptance and approval. As the obligors did not, after signing and sealing the bond, undertake to deliver the bond themselves, they must be considered as intrusting it to Harney to cause delivery to be made. They thus gave an agency to Harney in relation to the delivery. An act done therefore by Harney, or any person whom he should engage to make the delivery, if wholly immaterial to the obligors, not enlarging their liabilities, nor injuring them in the least, should be considered as the act of the obligors, and binding on them.

It is next pleaded against the.validity of the bond, that Harney was duly elected sheriff and tax collector of Hinds County, and that he executed a sheriff’s bond in the penalty prescribed by law, which was approved and accepted, and thereupon he was entitled to the office of sheriff and tax collector without executing any new or further bond; but that the board of supervisors of the county demanded a tax collector’s bond unknown to the law, falsely claiming and insisting that the execution of such bond was necessary, and that unless the same was given they would proceed to have the office of sheriff declared vacant; and that Harney, coerced by and under duress of said board, executed and caused to be executed said bond. The circuit judge overruled a demurrer to this plea, and, as we think, incorrectly. The exact point was decided by the Supreme Court of New Jersey, in Socy v. State, 38 N. J. 324. The threat of the board of supervisors was nothing more than to resort to legal proceedings to enforce their view of the law. As was said in the case above cited, the threat was either idle, such as neither the law nor any sensible person would regard, or meant that, in case of refusal to give the bond called for, a legal course would be pursued. A demand made under the. urgency of an intimation that, if not complied with, the law will be appealed to, cannot reasonably be claimed to be either extortion or duress. It does not, in legal contemplation, place the person against whom it is aimed in vinculis, nor destroy in any degree his free agency.

Judgment reversed and cause remanded.

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Dissenting Opinion

Campbell, J.,

delivered the following dissenting opinion.

I dissent from the conclusion that the bond given when no law required it, and when the law required another bond, which was duly executed, has any validity as security to the State for taxes. It is not obligatory as a common-law instrument for the want of a legal consideration. At common law the seal estopped the obligors from saying that there was no consideration, and thus the seal stood for a consideration; but happily we are freed from this absurdity by a statute which allows inquiry into the consideration of sealed instruments, and in this respect they are as simple contracts. It is certain that there was no legal consideration for this bond. No law required it. There was no advantage to the promisors, and no loss, injury or inconvenience to the promisee, by virtue of its execution. The obligors acquired no right, derived no advantage, made no gain, by reason of it. Harney had been duly elected sheriff. The execution of his bond as sheriff was a full compliance with law. No obligation rested on him to give another bond. No officer or tribunal could lawfully demand of him another bond as a qualification for his office, or displace or interfere with him for not giving another. The additional bond was therefore nudum pactum. It is not of force as a statutory bond, because not in compliance with any statute. No statute required it, or provided its penalty, or authorized any officer to require it, or to accept and approve it. It is true that the Supreme Court of the United States has decided in several cases that a voluntary bond given by an appointee to. office, by virtue of the requirement of his superior officer, is valid ; but the principle which supports this view is that such a requirement is within the range of the proper discretion of the officers of the government, and although no law may require it, if the appointing power requires a bond as the condition of entering or continuing to hold the office, it is valid when executed. This is tbe principle of Socy v. State, 38 N. J. 324, cited in the opinion of tbe majority. Some courts, without noting the obvious principle on which these cases rest, have followed their result, and have held that official bonds not required by law are obligatory. The difference between an appointee to office -whose superior officer, in the exercise of a sound discretion vested in him by law, requires a bond to enable his appointee to hold the office, and an officer .elected by the people, according to law, to an office the qualification for which is prescribed by law, with .an indefeasible right to the office upon the terms prescribed by law, with no law requiring a bond, and no superior or other person in authority with a discretion to exact a bond, is plain; and in State v. Bartlett, 30 Miss. 624, such a bond given by a public officer was held to be void. It may be conceded that this' case is wrong, and still the bond here sued on is not enforceable. Here a bond was reqiiired, — a sheriff’s bond, — a valid security for taxes and all other official duties. In giving that, Harney did all the law required. The additional bond, as I think, was mere waste-paper, required by no law, supported by no consideration.

Chalmers, J.

If I could regard the question of the obligatory force of a bond given by a public disbursing officer where no statute required the giving of it, ás an open one, I should be inclined to hold with my brother Campbell, that such a bond was not binding. But this court, in at least five cases, has arrived at a different conclusion, and in so doing has followed the overwhelming weight of American authority, both State and Federal. Our own case of State v. Bartlett, 30 Miss. 624, stands almost, if not entirely, alone hmong cases decided during the last forty years, in declaring such bonds invalid, and is virtually overruled by the repeated decisions in the later volumes of our reports cited in the opinion delivered by the Chief Justice holding them obligatory. Elsewhere the decisions seem uniformly to hold the principals and sureties on such bonds liable for any default covered by their terms. Brandt on Suretyship and Guaranty, §-"444. I do not feel at liberty to set my individual opinion of what the law ought to be in opposition to this concurrent weight of authority as to what it is.

George, C. J.,

delivered the opinion of the court in the case of the county taxes.

In this case many of the questions which were presented in the preceding case are raised, and they are settled in the same way. It is necessary to determine only one question in this ease not settled in the other. Among the many pleas interposed to this action was one to the effect, that the taxes for the county were levied by the board of supervisors, sitting in the city of Jackson instead of at the court-house in the town of Raymond. It has been held by this court that such a levy was irregular, and did not confer on the sheriff the power to seize and sell property. Johnson v. Futch, ante, 73. Whatever may have been the ancient rule on this subject, it seems now to be settled, in accordance with reason and justice, that the want of power in the tax collector to collect taxes, by reason of any irregularity in the assessment or other proceeding necessary to confer the power, is not a good defence to an action against him for non-payment of the money actually collected. He is treated as the agent of the State or county in collecting the money, and as having received it for the benefit of his principal ; and he will not be permitted to rely upon technical objections which might be made to the right of the State or county to it. The tax-payers who paid the money voluntarily are considered as having paid it to him for the use of the treasury; and he will not be permitted, having thus received it, to question the right of the State or county to it. Cooley on Taxation, 497, 498, and authorities there cited. The objection is purely technical, and relates solely to the irregular execution of a power clearly vested in the board of supervisors. It is not pretended that the taxes levied were illegal, or in excess of the amount authorized by law to be laid on the people and property of the county. The sole objection is, that the board of supervisors, under a mistaken view of the law, held their sessions in the wrong judicial district of the county. These views seem to be conclusive against the tax collector who received the money. The sureties on Ms bond are also liable, if the failure of the sheriff to pay over the money comes within the terms of the bond and constitutes a breach of it as'written. This failure comes within the terms of the bond. We have shown that the county treasury is entitled to the money, and one of the conditions of the bond is that Harney “will promptly pay into the State and county treasuries all moneys collected by Mm and to which said treasuries shall be respectively entitled.”

Judgment reversed and, cause remanded.