Montgomery v. Governor , 8 Miss. 68 ( 1843 )

Mr. Justice Turner

stated the case, and delivered the opinion of the court.

The same difficulty exists in reconciling and construing the several acts of our legislature, on the subject of revenue, passed under the old and under the'amended constitution of our state.

By the act of 1822, Rev. Code, p. 286, sec. 3, the goyernor was to make annual appointments of assessor and collector of taxes for each county. The taxable property held on the 1st day of January of each and every year was to be assessed by the 1st of June, and the lists of assessments were to be completed and delivered, one copy to the auditor, one to the county treasurer, and one was to be retained by the assessor and collector, by the 1st of July, in each year. By the same act of 1822, the taxes were to be paid into the treasury on or before the 1st Monday of November ; by the act of 1823, they were to be so paid by the 1st day of January ; and by the act of 1830, they were to be paid. b‘y the 1st of March, in each and every year. And it is by this, latter act, viz: of 1830, that the fiscal year, commencing on the 1st of March, ending the last of February in each and every year, is established.

Under the several acts passed previous to the year 1833, the difficulties which present themselyes in this case could not have arisen, inasmuch as the offices of assessor and collector were united in the same person, they were appointed about the time when their duties were to commence, and they proceeded regularly on through the year. Under the new constitution, these officers are elected once in two years, at the biennial elections holden in November. ■ The fiscal year commences the 1st of March; and the assessments are made and the assessment rolls are delivered to the collector of taxes during the spring and summer previous to the time of election, every second year. In the intervening year the difficulty does not exist, the collector being in office two years.

In the case before us, the fiscal- year, within which the arrearages of taxes sued for, accrued, commenced the 1st of March, 1837, and ended the last of February, 1838; the assessment was made by the 1st of June, and the assessment lists were to be delivered to the colléctor by the 1st of July: and it was in proof that the list was delivered to H. Hanchett in August. But Hanchett rvas not elected till November. Who was the collector in the county of Adams, in July or August 1837, does not appear. If T-Tiram Hanchett, the bondsman in this case, was then collector, he held the office by some previous appointment. If he was ihe collector elected at the biennial election of 1835, he was the collector to receive the tax lists in July 1837, as his term of office of two years had not then expired. But the collector’s bond given in pursuance of the election of November 1837, is sued on., Is this right? Are the sureties of Hanchett in this case bound for his acts done previous to the time of his election ? Surely not.

The act found in Howard & Hut. Digest, p. 108, sec. 20, provides, “ that the several assessors and collectors of taxes heretofore appointed, and which may hereafter be appointed, shall be, and they are hereby authorised to finish the collection of all arrearages of taxes which had become due during their continuance in office, notwithstanding the time 'may have expired for which such assessor and collector was appointed ; or they may, at their discretion, deliver a list of such arrearages to their successors in office, to ' be' by them collected and accounted for to -their respective predecessors.”

Now, if the tax collector, elected in November, is considered in office, and bound to enter on his duties previous to the first March following, we have the incongruity of two collectors of taxes at the same time every second year — of one collector entering on the duties of his office the first July, the time when he is to receive the assessment-list from the assessor, the collection of which should be completed the first March following; and of another, elected' the next succeeding November, or of a man out of office, responsible for the duties thereof, either performing them himself or of employing his successor as his deputy or agent, doing and performing acts which should be done only by a regularly elected. and qualified officer of the government.

All the evidence given to support this action was given under the supposition that the collector, elected at November election, 1837, is bound for the revenue of the fiscal year which commenced the first of March previous to 'his election to that office; and when the witness, Staunton, spoke of having delivered the assessment-list. of 1837 to the tax collector in August, 1837, he must have had allusion to the collector in office at that time, and it follows of course that that collector and his süreties are liable for any default in collecting and accounting for the amount of such assessment, by virtue of the bond given by him oh his appointment, which bond is not the bond sued on in this case; and the auditor’s certificate has. reference to the same officer, and not to the onu elected in 1S37.

Mr. Hiram Hanchett may have been the collector from ’35 to ’37? and re-elected in November, 1837; but that would not alter the case. If that were so, the suit should have been on the bond in existence and in force at the time the collector received the assessment-list. If a recovery should be had in the present case, it would be no bar to an action on the bond previously given. But we have no evidence that- Hanchett was the collector previous to November, 1837. There seems to be a mystery about this, not easily understood. .If the assessor’s list was. delivered to Hanchett after his election, then he and his sureties are liable, becausehe was then authorized to collect the taxes; and if not so collecting for his predecessor, he is liable to the state directly; or if he had in his possession, after his election in November, 1837, the assessment-list of that year, and was not accountable to his predecessor in' office, the presumption is, that he did collect undef it, and he and his sureties will be liable in this action.

There is one other, matter worthy of notice, although not necessary -to the disposition of the case. . It is this: The act of 1822 united 'the offices of assessor and collector, and directed three lists of the annual assessments to be made — one for the auditor of public accounts, one for the county treasurer, and one to be retained by the assessor, who w;as also collector; and, since those offices (of assessor and collector) have been separated, as they have been for some of the counties of the state, there, is no act which I have found directing the manner of placing .the assesSment-1 ists in the collectors’ hands. I have no doubt but that the collector, when he does get the assessment-list in his hands, may collect under, it, and be responsible therefor; .but what will be sufficient evidence of such delivery is hot prescribed, and of course it must be proved, like any other matter in pais. • ,

We think the court erred in excluding evidence of the time of Hanchett’s death, of the. arpount of uncollected taxes, and of - the kind of money or bank notes received by him as collector, provided it was such money as the law authorized him to receive.

The legislature of our state, as well as the congress of the United States, have deemed it necessary to throw much of the bur-then of proof upon defendants, in actions brought against them as defaulting collectors of the revenue.. This is owing to. the nature of the trust confided to them, and of the official character of every act which creates the liability of those officers; and surely it is not unreasonable to allow a defendant, in such cases, to prove the negative, when charged as a defaulter — such as to show how he performed his duty in his life- time,, and when he ceased, by the act of God, to be able to perform it.

The judgment must be reversed, and cause remanded for a new trial.