State v. Lott, 69 Ala. 147

State v. Lott

69 Ala. 147 | Ala. | 1881

BRICKELL, C. J.

Taxes for the current year are due on the first day of October. Hntil that time, of the tax payer they are not demandable. From that time until the first of January succeeding, the collector has the right to demand them, and on the tax payer rests the duty' of paying on demand. The col*152lector, after having given thirty days notice, is required to attend in each precinct of the county, at the place of voting, at least twice, during the period intervening from the first of October to the first of January, for the purpose of receiving the taxes. On the first of January, if the tax payer has failed to pay, the taxes become delinquent ¡ he is subject to charges and penalties, and to compel payment the collector may resort to the levy and sale, of property, real or personal. During the first week in January the collector must account to the auditor, under oath, for »the whole amount of State, taxes by him collected up to that date, first deducting the commissions and fees allowed him by law. On or before the first of May, “he must make a final settlement with the .auditor, and pay over to the treasurer the balance of taxes received or collected from the tax payers in his county; and he must also account to the auditor, and pay over to the treasurer, all moneys received by him from sales of land, and account to the auditor for lands bought in for the State.”

The book of assessment of taxes, after the assessment has been examined, and errors, if any, corrected by the court of county commissioners, is by the judge of probate delivered to the tax collector. The delivery, it is intended, must be made before the first day of October. The book- shows the name of each tax payer, so far as known, the taxes assessed against him, and whether the tax is assessed on real or personal property, and the poll tax, if any, is assessed. In the event of a tax upon property the owner of which is unknown, the property and the amount of the State tax is shown by the book of assessment. If, in the course of the performance of the duty of collection, there are errors in assessment discovered, or there are persons from whom the collector is unable to make the taxes assessed, a statement or list of such errors cmd insolvenoies, as they are termed in the statute, he is" bound to report to the court of county commissioners at the April term of the court. After examination of the ■ list or report, so far as correct the court allows it, and the probate judge having certified the lists as allowed, the auditor is required to give the collector a credit •therefor on his final settlement.

The assessment book delivered to him by the judge of probate, is the warrant and authority of the collector to receive and to collect the taxes. Prima, faeie, when the time appointed for him to collect has expired, he becomes chargeable with all the taxes shown by it to be due to the State. — Timberlake v. Brewer, 59. Ala. 108. Every agent or trustee charged with the duty of collecting debts, becomes- chargeable with such debts upon the expiration of a reasonable time for collection, there being evidence of the ability of the debtor to pay. If there be *153any sufficient reason for tlie failure to collect, the onus of proof rests upon him. The default is shown prima facie, when it is shown that he received the evidence of the debts, assumed the duty of collecting; the ability of the debtor to pay, the opportunity for the performance of the duty having been afforded, in the absence of all evidence .in explanation, the conclusion is irresistible, either that the debts,have been collected, or that the failure to collect is negligence, a want of the diligence the agent •or trustee was bound to exercise. The statute having prescribed a particular period within which the collection:of taxes must be made; having afforded the collector ample remedies to compel payment within that period; and having provided him with a remedy to obtain credit for all taxes which are uncollectible, the result is inevitable that on the expiration of the appointed period, he is chargeable with all taxes appearing on the assessment book, it is not shown by the lists of errors and insolvencies were not collected. There is no authority to relieve him from liability for any other taxes, with the exception of taxes on lands sold for the non-payment of the tax assessed, and then he is chargeable with the proceeds of sales. Whether he has collected the taxes, other than such as are embraced in the list of errors and insolvencies, can not affect his liability. The condition of his official bond is, that he will perform all the duties of the office which m'e, or may he, required■ hy law. The bond operates as a security, not only for honesty in paying over the moneys actually received, but for skill and the measure of diligence the law exacts in collecting. The real intent of the official bond, expressed in the few words in which the statute requires the condition to be written, is, that the collector will, ■with fidelity, skill and diligence, perform the duties of the office, and keep inviolable the trusts reposed in him. The condition of the bond is broken, whenever there is default in the performance of duty, not capable of excuse, or for which excuse is not shown. .Whatever of damage or injury accrues to the State from the breach, is at that instant recoverable, and the duty and liability to make compensation then rests upon the several obligors, principal and sureties. The failure to collect is a breach .of the bond, equally with a failure to pay over the moneys collected. The duty of collecting is as important as the duty of paying honestly. The. one duty is precedent to the other.

The statute contemplates, indeed, in express terms requires, that on the first day of May of each year the collector shall make a final settlement with the auditor of the taxes of the preceding year. Whatever of taxes he has not paid previously, must then be paid, or an account of them given. The taxes which are not to be paid at that time, and for which an account *154is then to be given, are taxes on lands which the collector, has sold, and lands bought in by the-State for. the taxes. As to these, he accounts for the proceeds of sale; but for all other taxes, save errors and insolvencies, he must account in money. If he has not collected them, the failure is attributable to his. negligence, and for negligence he is as liable as for moneys received. The-payment of them can not.be delayed without converting the .settlement into a partial, instead of a final settlement ; and for a partial settlement at that time the law furnishes no authority. The partial settlement, and the only partial settlement contemplated, is the settlement the collector is-required to make during the first week in January.

There is. as is urged by the counsel for the appellée, a change-in the language of the present revenue law from that found in former laws. -The former laws, in express words, required that on .the final settlement with the auditor, the tax collector should pay over to the treasurer-the balance of the taxes due the State. The present statute employs the words “the balance of the taxes receimed or collected from the tax payers.” These words are employed in connection with an imperative requisition that the settlement shall be final, which it can not be, if the liability for which the collector accounts, is only for the moneys actually collected by him, and he gives no account, is held to no liability for the taxes he has not collected, the failure to collect, being the result onl.y of negligence and the violation of official duty. Besides, it would empower the collector to select his. own time for the collection of taxes, instead of collecting them within the period appointed by law. It would enable him to defer, and to fix a time for a filial settlement, variant from that the law prescribes in terms which are imperative. It was doubtless supposed by the legislature, that the collector would be diligent in the performance of duty, and would within the time prescribed, a period of seven months, have collected the taxes, and be ready to pay them to the treasurer. But if lie has not collected them, if he has neglected his duties, and by the neglect made himself chargeable with them, a legislative intention to-acquit-him of liability can not be - deduced from these words. The intention was, that if he had disappointed the expectation of the legislature, if he had not performed his duty, he should account for the neglect of duty according to the condition of his bond.

The collector being chargeable on the first day of May, for all taxes he has not- previously paid into the treasury, other than such as are embraced in the lists of errors and insolvencies, or such as are accounted for in consequence of the sales of lands, the point of contention between the parties is, whether interest attaches to the liability. Interest, in this -State, has *155been long regarded not as .the mere incident of a debt, attaching only to contracts, express or implied, for the payment of money, but as compensation for the use, or for the detention of money. Whenever it is ascertained that at a particular time money ought to have been paid, whether in satisfaction of a. debt, or as compensation for a breach of duty, or for the failure to lceep a contract, interest attaches as an incident.— Whitworth v. Hart, 22 Ala. 343; Boyd v. Gilchrist, 15 Ala. 849; James v. Governor, 1. Ala. 605. The true and just doctrine is expressed in Dodge v. Perkins, 9 Pick. 36, approved in Boyd v. Gilchrist, supra, that, “the inquiry is, whether the party has done all that the law required of him in the particular case,, whether acting on his own account, or as agent, executor, administrator, or trustee for others. If he has, he is not accountable for interest; if he has not, he is accountable for it, as a-compensation for the non-performance of his contract.” The duty resting upon the collector was the payment of the taxes on the first day of May. The official bond was a security for the performance of the duty at. that time; its condition, though written in general words, embodied a pledge to perform the duty. The failure to perform was a breach of the obligation of the bond, damnifying the State. The damage was the failure to receive in money on that day, the moneys which the collector ought .to have paid. The moneys are detained, and for the detention compensation must be made. The duty of compensation on the part of the collector, and the right to it on the part of the State, are the same in character- and degree, as if the collector had withheld and used moneys he had collected. The injury the State suffers from the failure to receive the moneys-it has the right to receive at an appointed time, is the same, whether it results from the collector’s want of fidelity in paying over moneys he has actually received, or his want of diligence in collecting. For the injury, the State in either case has a clear legal right to compensation, and interest is the measure of the compensation.

Whether on the final settlement with the auditor made after the institution of this suit, and after the time appointed by law for its making, he exacted, or waived the payment of interest,, is unimportant. The law fixes the measure of the liability of the appellees, and from that liability they can not be discharged by the laches, by the waiver, or by the express agreement of any public officer. The duties of the auditor are as carefully prescribed by the statute as are the duties of the tax collector;. and within these duties is not comprehended that of waiving or contracting away the rights of the State, or of compounding with its debtors, though he is charged with the diity of making-*156¡settlements with, and holding some officials to accountability. The rulings of the Circuit Court were inconsistent with these views and its judgment is reversed and the cause remanded.