Byrne v. State , 50 Miss. 688 ( 1874 )

Simrall, J.,

delivered the opinion of the court.

The single point made in this case is, whether, in a suit upon the tax collector’s bond, he and his sureties can successfully resist a demand made by the county for failing to pay over money collected for taxes, on the allegation that the sheriff is not tax collector, and his bond is therefore invalid.

The Code of 1857, art. 5, p. 71, made the sheriff tax collector. The words are : “ The sheriff of each county shall be tax collector therein, and at the time of giving bond as sheriff, he shall give a bond as tax collector, in a penalty equal to the full amount of the taxes assessed in his county the preceding year, with twenty per cent, added thereto.”

The Code of 1871 does not, in terms, contain this article, although the duties and responsibilities of tax collector are enumerated and defined very much as in the former code.

The omission in the Code of Í871 is, that it does not declare that the sheriff shall be tax collector ; and the argument is, that by virtue of the 8th section of the present code, the above recited provision of the former code has been repeated, and therefore there is no legal tax collector in this state.

The entire 22d chapter on the subject of public revenue accepts, as a fact, that there is a person charged with the duty of collecting the revenue, state and county, who is denominated collector, sometimes tax collector, thus, art. VII, § 1690: “ On receipt of the assessment rolls, the collector shall proceed to collect and receive the taxes, and it shall be the duty of every person assessed to pay his taxes to the ‘collector.’ ” The subsequent sections direct the modes' of proceeding by distress and sale, against delinquents, etc., and the settlements with the state and county treasurers, etc.

In art 5, chapter 11, § 1372, are these words : “ The boards of supervisors shall meet on the first Monday of July ofi each year, for the purpose of fixing the amount of county taxes, * * and1 shall order a certain rate per centum on amount of assessment roll, of state taxes, and the clerk of the board shall thereupon certify the same to the auditor of public accounts, and sheriff of the county as directed by law.” Section 1374 makes it the duty of the person collecting the state taxes to collect also county taxes. The object of certifying to the sheriff a copy of the assessment roll, as directed by law, was to guide him in the collection as- to the debtors and amounts, and upon what property imposed. Turning now to §1685, it will be seen that after all objections to the assessment roll have been settled, the clerk of the board of supervisors shall make two copies thereof; one shall be sent to the auditor of public accounts, and the other shall be delivered to the “ tax collector.”

In the former section the roll is directed to be delivered by the clerk of the board of supervisors to the “sheriff," and in the latter it shall be delivered to the “ tax collector,” so that he may proceed to the collection of taxes. In the former, the sheriff is assumed to be the “ collector,” or the person to receive the assessment roll for that purpose.

If the duty of collecting the taxes is not incident to the office of sheriff, then we have had no de jure collector since October, 1871, when the code went into effect. The last revision of the laws repeatedly refers to the office of tax collector. The legislature has been in session every year since that code was adopted, and has in its laws made frequent mention of that officer and his duties.

From this, one of two deductions must be drawn, either that the legislature regarded the duty of collecting taxes, as incident to the office of sheriff at the time the present constitution was ratified in 1869, and therefore when that officer was elected and qualified, as part of his official duty was that of collector of taxes, or they must have regarded the 5th article of the code of 1857 as unrepealed by the 8th section of the present code. As we have seen, the sheriff is named in one section of the code as the person to collect the county taxes at the same time he collects the state taxes.

Since the adoption of the present code, as before, the sheriffs have been collecting the public revenues. This is a recognition by the legislature and the executive department of their right so to do. In view of such recognition, and the confusion and disastrous consequences that would ensue, if an adverse opinion should now obtain, we should be constrained to hold that the sheriffs are tax collectors, because that duty was annexed by law to their office at the time the constitution was adopted, and when that office was filled, as incident to it, and part and parcel of it was the function of collector of taxes, or that the 5th article, p. 71 of the code of 1857, has not been repealed.

But since we are entirely satisfied that the judgment ought to be affirmed on another ground, it is unnecessary to the exigencies of this case to announce a decisive opinion on the question we have been considering.

If we were in error in the foregoing views, if does not necessarily follow, that the bond of the plaintiff in error is void. The office of tax collector exists, with well defined duties and responsibilities in the present code.

Byrne took possession of the office, being sheriff, and, with the consent of the authorities, state and county, entered upon its functions, having given the bond in question. Can he, when he has collected the taxes imposed by law and applied the profits and emoluments to his own use, be heard to say, when called upon to pay over to the county its quota of the taxes, that he had strictly no right to the office, and the bond which he has given is invalid?

If that doctrine be sound, a de facto incumbent of an office cannot give a valid security for the discharge of its duties. The office was entered upon by virtue of Byrne’s election as sheriff, and as incident to the person holding that place. He had a claim to the office, under which he enters and enjoys.

Applying to him and his sureties well defined principles of law, they ought to be estopped to deny that- there rested upon him, both to the state and county, the full responsibilities of the office of tax collector. By means of it, Byrne has got the public moneys. The authorities have not complained that he was not rightfully in office, nor should he be permitted, as justification of failing to pay over the public funds, to plead that he did not have a good title to the office. He claimed to have collected the taxes by official authority. He executed the bond, and it was accepted and approved, on the predicate that he was rightfully in office. He should not be allowed, after enjoying its benefits, to retain the public money by a repudiation of the authority under which he made the collections.

The recital of facts iu a bond is an estoppel; it is sucb an admission by deed, as estops the party to deny the facts recited. Stow v. Wyse, 7 Conn., 214. Where che bond acknowledged that the injunction was granted, the obligors could not deny the fact. Allen v. Luckett, 3 J. J. Marshall, 166. Nor can they deny that there was such judgment as the bond recites. 7 J. J. Marsh., 193; Stewart v. Butler, 2 S. & R., 381. Nor can they deny the appointment and official character of the officer named in the bond. Borden v. Houston, 2 Texas, 604.

There was no error, therefore, in sustaining the demurrer to the second and third pleas.

Judgment is affirmed.