State ex rel. Justices of the Levy Court v. Dorsey , 3 G. & J. 75 ( 1830 )

Buchanan, Ch. J.,

delivered the opinion of the court.

John H. Dorsey, one of the defendants, was appointed by the Levy Court of Baltimore county, on the 19th of February, 1824, one of the collectors of the county tax for the city of Baltimore for the year 1823, and on the 2d of March, 18.24, he gave his bond to the State, conditioned for the faithful discharge of his duties as such collector, with the other defendants as his sureties. Upon that bond this suit was brought, to which the defendants pleaded. [Here the Judge referred to the pleadings and judgment of the county court as before set forth, and then said]—The question arising upon the demurrer to the second plea is, whether the Levy Court of Baltimore county, had any authority to appoint collectors of the tax, imposed for the year 1823, and to receive and approve their bonds, at any time after the 31st of December of that year. The 2d sec. of the act of 1817, ch, 22, authorises the Levy Court of Baltimore county, to meet for the transaction of public business, at such places in said county, and on, or at such days and times, as the said court shall consider expedient, between the first day of March and the 31st day of December, in each and every year thereafter, and to continue by adjournment or otherwise, from day to day, or time to time, until the public business shall have been completed—with the proviso, “provided nevertheless, that the levy for each year shall be completed within the year.” By the 2d sec. of another act of the same year, ch. 142, the Levy Court is directed to appoint a number of collectors of the tax, who are required severally to give bond to the State, in such penalty, and with such security as the court shall prescribe and approve, conditioned for the faithful discharge of their duties as such. Upon which bonds suits are authorised to be brought by the Levy Court, or any person or persons interested therein. And by the act of 1823, ch. 32, authority is given to the Levy Court of Baltimore county, to make and close the levy for the year 1823, on or before the first day of March, 1824.

In the State use Levy Court, &c. vs. Merryman, 7 Harr. and Johns. 79, it was decided by this court, that under the act of 1794, ch. 10, authorising the justicés of the Levy Courts of the several counties in the State, “ to adjourn their respective courts from time to time, for the purpose of laying the levy;” and the act of the same year, ch. 53, requiring them “to meet on some day between the 1st of March, and the 1st of October annually, to adjust the ordinary and necessary expenses of their several counties, &c.; and to impose an assessment, &c. sufficient to defray such charges,” and “to appoint a person or persons, to collect the same,” they had no authority to impose an assessment, after the first of October, or to adjourn beyond that time. And it is perfectly clear, that under the proviso of the 2d sec. of the act of 1817, ch. 22, the Levy Court of Baltimore county, could not have imposed the assessment for the year 1823, after the 31st of December of that year, but for the act of 1823, ch. 32, extending the time to the 1st of March, 1824. It is supposed, and the course of the Legislature shows the understanding to have been, that the Levy Court, was equally restricted in relation to the appointment of collectors. The 3d sec. of the act of 1817, ch. 22, passed 8th January, 1818, makes provision for completing the levy, and appointing a collector for the year 1817, and finishing the unsettled business of Baltimore county for that year, which would have been unnecessary in relation to the collectors, if the Levy Court could have appointed a collector after the 1st of October, 1817. And it is contended that under the 2d sec. of the same act, authorising the Levy Court to meet on some day between the 1st of March and 31st December annually, for the transaction of public business, they were restricted in the appointment of a collector to some time between those periods, and that the appointment of John II. Dorsey, on the 19th February, 1824, as collector of the tax for the year 1823, was illegal and void. But we do not think so. The collectors are required to give bond in such penalty as the court shall prescribe, and as the amount of the penalty of the bonds to be given, cannot be ascertained before the assessment is made by which it must be regulated, it would seem as if the law looked to the assessment being made, before the appointment of the collectors. It may therefore well be a question, whether the act of 1823, ch. 32, extending the time of making the levy for the year 1823, to the 1st of March, 1824, would not of itself, necessarily have carried with it, an extension of the time for appointing the collectors ; and we are inclined to think it would, for there could be no necessity for appointing collectors, before the assessment was made. But be that as it may, the 2d section of the act of 1817, ch. 22, does not restrict the power of appointing collectors to a time within those limits. Inconveniences had grown out of the restriction before existing; legislation had been found necessary to make valid, appointments of collectors, and other acts of the Levy Court, not within the time prescribed, and to authorise the appointment of collectors after the limited time; to prevent which thereafter, seems to have been one of the objects of the 2d section of 1817, ch. 22, which, after authorising the Levy Court to meet annually, between the 1st of March and the 31st of December, goes on to say, “and may continue by adjournment or otherwise, from day to day, or time to time, until the public business shall have been completed, provided nevertheless, that the levy for each year, shall be completed within the year.” Thus plainly indicating, that although the levy for each year must be completed within the year, yet that other parts of the public business need not be, but for the completion of which they are permitted to adjourn from day to day, &c., beyond the end of the year, if it should be found necessary. The proviso obviously showing, that completing the levy, was the only thing absolutely required to be done within the year. And though it would be unnecessary to appoint collectors, if the levy should not be made, yet that furnishes no reason tor a different understanding of that section, for the law presumes that the Levy Court will always do their duty, by completing the levy within the time prescribed—and the act of December, 1823, ch. 32, provided against the contingency of their being no levy imposed for the year, by extending the time of imposing it, to the 1st of March, 1824. And the Levy Court being constituted a corporation and body politic, there can on no principle, be any well founded objection to the execution, and acceptance of the bond of John H. Dorsey, on the 2d of March, 1824.

The suit being brought in the name of the State, and entered for the use of the Levy Court of Baltimore county, the demurrers to the third and fourth pleas, present substantially but one and the same question; which is, whether the Levy Court of Baltimore county, having become extinct, and another body politic, and corporate, created in its place since the bringing of the suit, the action can be sustained ? When a suit is brought on a private bond, &c. for the use of an individual, the individuál for whose use it is entered, is not the legal plaintiff; the use is only entered for the protection of his. equitable interest, and if he. dies pending the suit, his death is not the subject of a plea, nor is there for the purposes of the suit, any necessity for suggesting his death, but the suit goes on, as if he was still living, or the use had never been entered. The judgment is rendered in the name of the nominal, the legal plaintiff; and it is nothing to the defendant who may be entitled to the equitable interest. And we can perceive no reason, why in the case of a public bond, with the privilege secured to any person interested to bring suit upon it, there should be any difference. In either case, the suit must be brought in the name of the obligee. In the case of a private bond, the individual obligee is the legal plaintiff for the use of the person having the equitable interest; and in the case of a bond to the State, (as here) the State is the legal plaintiff; and there is no necessity for the purposes of the suit, to enter the use, whether it is brought for the benefit of an individual or a corporation; nor if entered, does it make any difference to the defendant, how it may vary or chango as to the person asserting the same right. It does not affect his defence, nor can any change of the use become a fit subject of plea. The declaration or replication, in the case of a bond with a collateral condition, as this is, assigns the breach and discloses the use, or for what the suit is brought, and the defendant being thus advised, shapes his defence accordingly. The judgment is in the name of the State, and will, be for the use of whoever is entitled to the beneficial interest. We think the third and fourth pleas therefore bad, and that they were properly demurred to.

What has been said in relation to the second plea, applies equally to the rejoinder to the first breach, assigned in the replication to the first plea, with the addition that the rejoinder being of the matter of the second plea, it is clearly a departure from the defendant’s first plea of general performance. It has, however, been contended, that the failure by John H. Dorsey, to finish and complete the collections of the tax imposed for the year 1883, within one year and six months after the delivery to him of a copy of the account of assessment, &c. was not alone a breach of the condition of the bond, and therefore that the first breach assigned in the replication is insufficient, in not also stating that he did not pay or account, &c. and that we must mount up to the first fault. But we do not perceive the force of the objection. The act of 1794, ch. 53, requires that a collector shall proceed to collect the tax, &c. within six months after having received the assessment lists, &e.; and the 3d section of the act of 1817, ch. 142, requires that he “shall finish and complete the collections by the time prescribed by law, or assigned by the Levy Court for the completion of the same,” “and shall pay and account for the same, in such manner and at such times as the court shall direct and appoint.” Taking the two laws together then, (and they are parts of the same system) a collector is required to finish and complete the collections within six months after having received the assessment lists, &e. or by the time assigned by the Levy Court for the completion of the same, and also to pay and account for the same, in such manner and at such times as the court shall direct and appoint. Here then, are two distinct duties required to be performed; one to finish and complete the collections within six months, &c. or by the time assigned by the Levy Court—and the other to pay and account for the same, in such manner, and at such times as the court shall direct; the neglect to perform either of which, is a violation of the condition of the bond, for which an action will lie. And it was not necessary to sustain this suit, to add to the failure by John H. Dorsey to finish and complete the collections, &c. (which is the first breach assigned) a neglect to pay and account, &c. which is, of itself, a separate and distinct breach of duty. Here the breach assigned is, that he did not finish and complete the collections within one year and six months, &c. which covers the whole time prescribed by law; the act of 1815, ch. 173, allowing to collectors one year after the expiration of the time for which they are appointed, to collect the balances that may be due to them, in no way relieving them from their liability or their bonds for not finishing the collections within six months; but only giving them for their own benefit and security, the privilege of collecting what they had neglected to collect in due time, in the same manner in which they might have made the collections within the time prescribed, which otherwise they could not have done.

We concur in opinion with the court below, on the demurrers to the third and fourth pleas, and rejoinder to the first breach assigned in the replication; but dissent from the opinion expressed on the demurrer to the second plea.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.