Board of Commissioners v. Gardner , 18 Mont. 110 ( 1896 )

De Witt, J.

In favor of the demurrer, appellants present three questions: First, that at the time the bond was executed there was no statute making it the duty of the assessor to collect the poor tax, and, if it were not the duty of his office, the bondsmen were not liable; second, that if such statute did exist at the time of making the bond, it was repealed by the act of the legislature of March 6, 1891, —a date prior to the collection and alleged embezzlement of the funds; third, that if at the time the bond was given, or the collections were made by the assessor, there was a law on the statute book making it the duty of the assessor to collect the poor tax, such a law was unconstitutional, for the reason that the constitution, in article XYI, § 5, provides that the county treasurer shall be collector of taxes. We will take up these questions in their order.

1. Gardner, the assessor, took office and filed his bond on November 8, 1889, — the day on which this state was admitted into the Union. The laws of the territory were, by the constitution, made the laws of the state, except where in conflict with the constitution. Upon the admission of the state there was upon the statute book section 1790, div. 5, Comp. St. 1887. That section provided for the levy of a poor tax of two dollars per caput. It made it the duty of the assessor to collect this tax in money. It provided somewhat in detail for the manner of the collection, and for the issuing of receipts, and making returns of the money and accounts. That statute also further provided that the assessor should be liable on his official bond for the nonperformance of his duties in collecting said poor tax, and for the money collected therefor by him. Counsel contends that, while this section of the law was upon the statute book, it in fact was not a law of the territory at that time. He bases this contention upon a review of the history of the subject-matter of this section. He traces the section from 1873 down to September 14, 1887. He claims that by various amendatory and repealing acts, this section 1790 had ceased to be a law, and was by a mistake written in the compilation. We have followed counsel through the whole history of this section, and, after a careful and tedious examination, have concluded that the section was a law of the territory upon the coming in of the state. It does not seem to be profitable to recite this history, for it would not be a precedent in the future, as the question is not likely to arise again. The practice in collecting these taxes is now regulated by legislation passed in 1895. Therefore appellants’ first point is not well taken.

2. By an act approved March 6, 1891, the legislature provided a new revenue law, including the matter of the poor tax, and the collection thereof by the assessor. The provisions of section 1790 of the Compiled Statutes of 1887 were practically re-enacted, except that the new law did not provide that the assessor should be liable on his official bond for the nonperformance of his official duties in collecting the poor tax. As all of the collections which it is alleged this assessor embezzled were made after the passage of the act of March 6, 1891, appellants argue that there was no provision making the assessor’s bond liable for his embezzlements; and furthermore that the provision of the law of 1891, requiring the assessor to collect the poor tax, was passed after the bond was given, and therefore imposed a new and different duty upon the assessor, for the performance of which the sureties had not agreed to be liable. But the act of 1891 did not impose any duty upon the assessor which was not already imposed by section' 1790, supra, when the bond was given. Under section 1790-it was the assessor’s duty to collect the poor tax, and that 'duty, instead of being changed by the law of 1891, was continued as I it was before. The condition of the bond was that the as- ¡ sessor will render a true account of all moneys, credits, ac-accounts and property of any kind that shall come into his hands as such officer, and pay over the same, etc. Instead of the law of 1891 imposing any new duties which were not within the contemplation of the bondsmen, it simply continued the old duties in reference to which the bondsmen had already contracted. The fact that the new law of 1891 did not state as did the section 1790 of the old law, that the bond of the assessor should be liable for the poor taxes not paid over, is not important. The law of 1891 probably omitted that clause because it was immaterial. The bond required to be given, and in fact given, as noted above, is to the effect that the assessor will pay over moneys so collected. The law requiring that such bond should be given, it would be superfluous to restate in another section of the statute the same matter theretofore provided for. We are therefore of opinion that appellants’ second position is not sustainable.

3. The appellants contend that it was not the duty, and could not by statute be made the duty, of the assessor to collect the poor tax, because article XVI, section 5 of the constitution provides that in each county there shall be one treasurer, who shall be collector of taxes. But we are of opinion that the bondsmen here are estopped from questioning the constitutionality of the act of the legislature in this proceeding.

In a case similar to this, viz., Mayor, etc., v. Harrison, 30 N. J. Law 73, the court said: “By the condition of this bond it is recited that, whereas the said William B,. Harrison had been duly appointed by the mayor and common council of the city of Hoboken as collector of assessments for street improvements, that if he should well and truly pay to the treasurer of said city all moneys which he might collect or receive as such collector, etc. By this condition the sureties have admitted that his election was by the mayor and common council, and agreed to be sureties for the payment of all moneys which, by virtue of the appointment thus made, he might receive. They are estopped from denying that Harrison was de facto a collector of assessments for street improvements. Their liability to pay over what he has collected is coextensive with his. In a suit for moneys collected by him as such, neither the officer de facto, nor his sureties, may set up the invalidity of his appointment in bar of this action. * * * It would seem to be eminently impolitic to permit the parties to such -a bond to escape its obligations by contradicting the recitals of the bond and thus retain from the public authorities the taxes received by an officer de facto. ’ ’

This opinion is cited with approval and followed in a similar case, — Middleton v. State, 120 Ind. 166, 22 N. E. 123. To the same effect is People v. Gillespie, 47 Ill. App. 522, in which the court says : ‘ ‘ He and his sureties cannot be heard to say that the levy was not properly made, or the tax collected without proper authority. He collected and received it by virtue of his office; and it was his duty to report and account for the same, and charge it to himself as treasurer. In People v. Hoover, 92 Ill. 575, it was held, when a treasurer in counties under township organization receives taxes belonging to the county, he will be considered as holding the same as collector until he reports them to the county clerk, as required by section 120 of the revenue act, and his sureties are liable. The bond of collector secures the performance of duties not covered by his bond as treasurer. ’ ’ See, also cases cited in that opinion. See, also, Mayor, etc., of City of New York v. Manhattan Ry. Co., 143 N. Y. 1, 37 N. E. 494. Railroad Co. v. King, 69 Miss. 852, 13 South. 824; Cooley on Constitutional Limitation, page 181.

We are therefore of opinion that the demurrer was properly overruled, and that the judgment must therefore be affirmed.

Affirmed.

PembertoN, C. J., and Hunt, J., concur.