Kingsbury v. Ledyard , 2 Watts & Serg. 37 ( 1841 )

The opinion of the Court was delivered by

Huston, J.

The case of Riddle v. Bedford County, (7 Serg. & Rawle 386), has been relied on by both parties. That case, and Keyser v. M’Kissan, (2 Rawle 139), in our own reports, state the law as well settled in England, New York, Massachusetts, and this state, that the act of an officer, who is only such de facto, is not good where it is for his own benefit, or where he sues to recover for his own benefit; but where he acts for the benefit of strangers or of the public, who know nothing about his title to the office, his acts are valid. We heard much in this case about the danger of the inhabitants being compelled to pay a second time the taxes paid to this collector. The case last cited expressly decides that-a bond taken according to law, by commissioners, is good without showing the regularity of their election, or that they took the oaths prescribed by law or decided by the court to be within the constitutional provision; and also that a payment to an officer de facto is good without showing that he was appointed and qualified in all respects agreeably to law.

That an officer is not liable as a trespasser, who acts under process issued by those who have jurisdiction, is well settled; see 3 Binn. 404; since often recognised in this court.

Indeed the counsel admitted the action could not be supported against the collector if acting for the public, and contended that in this case the tax levied was not for the county but for the sole and exclusive use of the collector; and to show this was cited section third of the Act of 28th of February 1835, (Stroud’s Purdon 209), making it the duty of the commissioners, within three months after the delivery of a duplicate to a collector, to file a certificate, under their hands and seals, in the office of the prothonotary of the Court of Common Pleas of the county, stating the amount due and unpaid by the collector, which the prothonotary must enter on his docket, and it shall have the effect of a judgment against such collector. A former law, (Stroud’s Purdon 211,) had authorized the treasurer to issue process to seize the real and personal estate of a collector who was in default; and provision is made in certain cases to sell this property; but it has never been considered that entering such certificate as a judgment, or such seizure of lands and goods of a collector, was a discharge of the inhabitant from his tax; such decision would often be to the great loss of the county; but other Acts of Assembly leave no doubt as to this matter. The several laws are to be considered together as forming one system. The Act of 15th of April 1834, had required every collector to give bond. The first section of the Act of 28th of February 1835, gave commissioners power to appoint, without taking bond or mortgage. The third section above cited allowed or required them to secure the amount not paid over at the end of three months by a lien operating as a judgment ; this for the security of the county, not as a discharge to the tax-payers; for by the 44th section of a prior Act of 1834, in full force, “ every warrant of a collector, issued as is heretofore provided, shall be effective to authorize him to collect the sums charged in his duplicate during the period of three years from the date of his warrant.” Nothing can show more strongly that the tax-payer was not discharged, than this authority given the collector to collect, even by distress and sale, for three years from the date of his warrant. In the same spirit we arrange the provision of the 50th section, which forbids the collector to sue for a tax in any case, and prohibits an alderman or justice from issuing process for him. Now it cannot be believed the legislature would have compelled an officer to collect a debt due to himself, and prohibited him from collecting it by the general law. These provisions show the tax to be still due to, and the property of the county, and to be collected for the county after the three months, if not paid before.

As much was said about the appointment of this collector, and the rights of the citizen, I will notice it. And first: the men returned by the assessor to the commissioners as suitable persons of whom to select one as collector, do not complain; they are not parties before us; they never appeared before the commissioner’s to ask the appointment; all that was offered to be proved was that either of those citizens was willing to be appointed collector; it was not offered to be proved that either of them was of sufficient property to be trusted with public money, or would have given security. The Act of 1834, required security from every collector. The Act of 1835, permitted the commissioners to appoint without taking security; but they will only do this where they have no doubt of the safety of the money without surety. An inquiry into the debts of an individual, his habits of business, his punctuality, &c., is not always pleasant to the man about whom it is made, or to those whose duty it is to make it. The commissioners may know what the assessor did not know. The assessor may return the names of two “ respectable citizens,” and the commissioners may not believe them so. The person to be appointed without giving security must own a freehold estate which the commissioners believe to be sufficient security. The commissioners may know of encumbrances, or that the land is held only by articles of agreement, &c.

In short, since the Act of 1835, the commissioners have a duty and a responsibility thrown on them which necessarily give the appointment absolutely to them, uncontrolled by the “shall appoint” of the first law.

The law makes no provision that the commissioners shall serve a notice on the persons nominated by the assessor, and makes no provision for a fee to the person serving such notice, and no fee can be charged where none is given by law. The distance may be a day’s ride.

It is not meant that if the persons nominated by the assessor appear and apply for the appointment, and offer security if required, that the commissioners can reject such person from prejudice to him or partiality to another; and if the person so rejected complains, the law will give him redress; will remove the other and put him into the office, and in some supposable cases punish the commissioners. But if the person returned by the assessor never appeared before the commissioners — never informed them he would accept the appointment, and never complained and does not complain that another was selected, no other person can object or be heard, and it matters not whether such other person is actuated by malice and ill-will, or party feelings, or a mistaken and morbid propensity to interfere with other people’s acts, and does this under what he calls a wish that all things should be done strictly according to his notions of law. As against and as respects all other persons, the appointment by the commissioners gives authority defacto and dejure; if it were not so, the act of the commissioners and the reasons of the commissioners may be held good by one jury and not good by another; and if not good by all juries, there is then no officer, for a jury cannot appoint; by a quo warranto the one is put out and another put in, and the county or district is not without an officer. The counties and townships of this state are made corporations for certain purposes — does the constitutional provision require that every officer of every corporation shall swear to support the constitution of this commonwealth? The laws creating corporations, and for electing and appointing county, township and corporation officers, prescribe oaths to be taken by certain officers, and are silent as to any oath by others. Does this provision include every thing called an officer ? Does it include the crier of the court ? He is called an officer of the court. Does it include the clerk of the commissioners ? his appointment, like that of court cryer, is noticed in the Acts of Assembly; but hitherto, as far as I can learn, neither have been sworn, nor have many of those holding subordinate borough offices; no one has heard of a collector being sworn, though it may have occurred in some counties.

But it is not necessary to decide it, for we are all of opinion this collector was collecting a tax for the county, and his acts for others and for the public are good, though only informally appointed. We do not say he was not appointed strictly according to law.

Judgment affirmed.