226 P. 1083 | Idaho | 1924
Respondents are the assessor of Bingham county and his official bondsman. This is an action by appellant to recover the aggregate sum of $11,222.01 on three several official bonds of respondent as assessor for Bingham county covering a period of four years, or two terms of office. The three causes of action are based on respondent's failure to collect personal property taxes assessed by him for the years 1919, 1920 and 1921 and 1922, and not secured by a lien on real property. The general demurrer to the complaint was sustained and, appellant refusing to amend, judgment was entered dismissing the action. From this judgment appeal is taken, the specifications of error being that the court erred (1) in sustaining the demurrer and (2) in dismissing the action.
Appellant claims that C. S., sec. 3267, made it the duty of respondent to collect these taxes. It reads as follows:
"Sec. 3267. It is hereby made the duty of the assessor, immediately upon assessing personal property whereon the tax is not a lien on real property of sufficient value, in the judgment of the assessor, to insure the collection of such tax, to compute the amount of taxes due on such personal property, based upon the levies for state and county, city, village, road district, school district or other purposes for the preceding year."
C. S., sec. 3307, provides as follows:
"Sec. 3307. The assessor shall be liable upon his official bond for the amount of all taxes on personal property which have not been collected or accounted for in his settlement with the board of county commissioners."
Up to 1912 the state constitution contained the following provision:
"The legislature, by general and uniform laws, shall provide for the election biennially in each of the several counties of the state, of county commissioners, a sheriff, county *189 treasurer, who is ex-officio public administrator, probate judge, who is ex-officio county superintendent of public instruction, county assessor, who is ex-officio tax collector, a coroner, and a surveyor." (Const., art. 18, sec. 6.)
In 1912 this section was amended so as to read as follows:
"The legislature by general and uniform laws shall provide for the election biennially, in each of the several counties of the state, of county commissioners, a sheriff, a county treasurer, who is ex-officio public administrator and alsoex-officio tax collector, a probate judge, a county superintendent of public instruction, a county assessor, a coroner, and surveyor." (Laws 1912 (Ex. Sess.), p. 53.)
Respondent contends that the statute making it the duty of the assessor to collect unsecured personal property taxes is in conflict with the provision of the constitution as amended and therefore void.
"It is an established general rule that constitutional provisions are to be construed as mandatory unless, by express provision or by necessary implication, a different intention is manifest." (12 C. J. 740, sec. 145; 6 R. C. L., p. 55, sec. 50;McDonald v. Doust,
Appellant contends, however, that, conceding the statutes to be unconstitutional, respondent is not in a position to raise that question in this case. Appellant's counsel first refers us to certain authorities which hold that a ministerial officer like respondent cannot resist a proceeding to make him perform a duty enjoined on him by statute on the ground that the statute is unconstitutional. There are authorities which sustain this proposition. The supreme court of Colorado has held:
"Where a statute authorizing a tax has been for a long time acquiesced in, and the procedure thereunder has become fixed, it would be dangerous to government to allow purely ministerial officers, such as a county assessor and treasurer, to question the constitutionality of the statute, or refuse to extend the tax as required thereby." (People v. Ames,
"Ministerial officers, upon whom the legislature has sought to impose a duty by statute, may assert the unconstitutionality of that statute as a defense to an application for amandamus to require them to perform the supposed duty." (VanHorn v. State,
Appellant's counsel next cites us to cases in which it is held that a public officer is estopped to raise the question of the constitutionality of a statute. It is the general rule that the sureties on an official bond can make no defense which the principal could not make. (Boone County v. Jones,
Appellant refers us to a third class of cases which hold that an unconstitutional statute may create a de facto office. (State v. Carroll,
"The board of police commissioners, created by the unconstitutional act of 1905, is a de facto board, and its action in discharging a member of the police force, prior to a decision *193 adjudging the act unconstitutional, is valid as to the officer, and the courts will not compel, by mandamus, his reinstatement."
In State v. Bailey, supra, the supreme court of Minnesota held: "There may be a de facto officer, though no de jure office exists, as in de facto municipal corporations or defacto courts." It further held that the question of the legal existence of such de facto office could be raised only by the state itself by quo warranto or other direct proceeding.
In State v. Gardner, supra, the supreme court of Ohio held: "In a prosecution for offering a bribe to an officer, who is acting as such under a statute providing for the government of a municipal corporation, the defendant cannot question the constitutionality of such statute." State v. Poulin, supra, apparently holds that an unconstitutional statute creates at least a de facto office. In Beaver v. Hall, supra, the supreme court of Tennessee held that, after conviction, a judgment in a criminal case will not be vacated on habeas corpus on the ground of the invalidity of the statute creating the court where the defendant did not object to the jurisdiction of the court before or during the trial. The court concludes that the office was at least a de facto one. On the contrary, the supreme court of the United States held that there cannot be an officer de facto or de jure if there be no office to fill; that "An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." (Norton v. Shelby County,
Appellant contends that the statute imposing part of the duties of the treasurer upon respondent made him at least a tax-collecting officer de facto to the extent prescribed by the statute, and that as such it was incumbent upon him to perform the prescribed duties, even though the law prescribing them was in violation of the constitution. We agree *194 with the doctrine of Norton v. Shelby County, supra, that there can be no such thing as a de facto office where the act attempting to create it is clearly repugnant to the constitution. If it were conceded for the sake of argument that the opposing doctrine is sound, it would not seem applicable to this case. The purpose of this doctrine is to protect the public by giving efficacy to official acts performed for the benefit of the public. It would not seem applicable to a case where an officer is being sued for damages for failing to perform duties which the legislature had no right to thrust upon him.
For the reasons given above the complaint states no cause of action and the demurrer was properly sustained. The judgment is affirmed, with costs to respondent.
Budge, William A. Lee and Wm. E. Lee, JJ., concur.