Metts v. State ( 1890 )

Coopee, J.,

delivered the opinion of the court.

The judgment in this case must be reversed for the error of the court in giving the second and fourth instructions for the -state. The second instruction rests upon the fact that in June of the year 1888, many months after the term of office of Metts had expired, and, so far as the record discloses or suggests, long after all the controverted applications of payments, some of the sureties on Metts’ official bond, acting for themselves and the other sureties, went to the auditor’s office and there learned of the misappropriation of the collections by the sheriff by his appropriating them to a default on a previous term for which they were not bound. This instruction, in effect, tells the jury that if the sureties then failed to object they are now precluded from defending on the' ground of such misapplication. It is not pretended that the sureties had any knowledge of the misapplications when made, or that they said or did anything from which their assent, at or before the time of such application, might have been implied. The officers of the state did not act by reason of a supposed acquiescence by the sureties, nor was the state’s condition at all changed in consequence thereof. There is, therefore, no ground for the application of the rule of estoppel.

By the fourth instruction the jury was told that if Metts misapplied the moneys collected by him in 1886 and 1887, by paying them over in discharge of a prior default, and that the misapplication was not made by the auditor and treasurer, then the sureties could not defend upon the ground of such misapplication. It is unnecessary for us to decide in this case whether a misapplication by the collector of the funds collected from the taxes of one year to the payment of a default of a prior year (a different set of sureties being liable for the different years), where such misapplication is unknown to the receiving officer, would render liable the sureties on the later bond, or whether the condition of the bond is kept wherever the money collected is actually paid into the treasury, regardless of its application by the collector or by the receiving officer. The authorities supporting both views are collected in the briefs of counsel for the state and for the appellants. It is sufficient for the decision of the present controversy to say that in no event could the sureties upon the later bond be held when the misapplication was made with the knowledge of the receiving officers at the time of the payment that the fund was being diverted from the course directed by law.

The complications presented by this case have manifestly arisen from a failure on the part of other officers than the delinquent collector to perform the duties devolved upon them by the provisions of law in relation to the collection of the public revenue. The system of our laws is so complete and efficient that, if properly enforced, conditions here shown to exist could never occur. By § 517 of the code, it is made the duty of each tax collector to “ enter in a well-bound book, kept for the purpose, the date and number of each tax receipt issued by him, the name of the person paying the taxes, and the amount paid, which entry shall be made at the time of issuing the receipt, and the amount of the aggregate of such receipts, entered on one page, shall be shown and carried foward to the next page, and so on, so that the amount collected can be seen at any time by an inspection of such book. Each collector shall also enter in said book, in immediate connection with said other entries, the amount of his payment of taxes to the state and county treasurers, respectively, giving the date of such payment, so that it can be seen by reference to said book whether the payment made to the state and county treasurers embraced all he had collected, less his commissions.” By § 518 it is made “ the duty of each tax collector to present the book required by the last section to be kept by him to the board of supervisors when required; and, upon final settlement witb the auditor of public accounts, said books shall be produced before him; and he shall indorse on it the fact, and the date of such presentation, and that he has examined the entries it contains of payment made to him of state taxes, and that such entries are correct.” By § 548 of the code it is provided that “ the collector shall pay over all taxes collected for the state or county to the state or county treasurer, within thirty days after the first day of October in any year, and monthly thereafter, and at each payment shall swear that the sum paid over in money or warrants is all that he has collected to that time; and his final settlement with the auditor and chancery clerk, respectively, shall be made by the first day of April with the former, and the first day of May with the latter, in the following year; and, if any collector shall fail to do so, he shall pay damages at the rate of thirty per centum per annum thereon, from the time the same shall be due until paid.” Section 549 makes it the duty of the auditor, if any collector shall fail to pay into the state treasury the amount of taxes due the state within the time provided, to immediately notify the district attorney, and furnish him with a statement under his hand and seal of office of the amount due by such collector, and the district attorney is required forthwith to commence suit on the bond of the collector for the amount due. By § 554 it is provided that if any collector shall not report to the auditor and clerk of the chancery court and pay over to the state and county treasurers, within ten days after the 31st day of October, and of the last day of each month thereafter during the time of collecting taxes, he shall not only be punishable as provided by law, but the auditor, and clerk of the board of supervisors, after notice to such collector, and continued failure by him to report and pay over the taxes, shall report such failure to the governor, who may suspend such tax collector, and prohibit him from the performance of his functions as such, and may appoint some suitable person to collect such taxes.

These provisions of the code, if seasonably enforced, would put an end to embezzlement by tax collectors; for immediately upon the first default, the machinery of the law begins to move, the delinquent is removed from office, and the sureties on his official bond are called upon to make good the deficiency. But, in the face of these simple and mandatory provisions of law, we find that on the 7th day of October, 1889, more than four years after the first default, and nearly two years after the expiration of the second term of office of the defaulting collector, the account here sued on was certified by the auditor, and on the trial of the cause the defaulting collector appears as a witness, and complacently explains to the court how for two successive terms he, a confessed and known defaulter, uninterruptedly pursued the even tenor of his way. We give the simple facts disclosed by the record, and place them in juxtaposition to the statutes applicable to them, to the end that similar occurrences may not again arise.

Our examination of the record suggests that in the trial at law it may be difficult to determine exactly when the default arose. In this condition of affairs it may be found advisable to proceed in equity, making the sureties on both bonds parties in order that the state may secure its debt against each set according as their respective liabilities may appear.

The judgment is reversed, and cause remanded.