c. REMEDIES AGAINST DEFAULTING COLLECTOR-(1) By Action (a) The Right to Maintain.-A state or municipality may pursue a delinquent collector for moneys collected and not paid over, or for failure to collect, by suit at common law; 1 or suit may be brought upon his official bond.2 As there is an adequate remedy at law, a bill in equity will not lie against a collector. Demand or notice to pay is unnecessary as a foundation for an action against him.4 A penalty may be imposed without notifying the collector of the adjustment, as it constitutes part of the preliminary proceedings that may be conducted ex parte, and any objection for want of such notice should come from him when summoned to show cause; and if want of knowledge is shown by him, as to the penalty, and is disallowed as a defense, he should spread it on the record bill of exceptions. Carnall v. Crawford County, 11 Ark. 604. See also Christian v. Ashley County, 24 Ark. 142. Where, a penalty is imposed on a tax collector for failure to account, it is a legal incident, and need not be specially claimed in a declaration against him and his sureties. State v. Lewenthall, 55 Miss. 589. 1. Adams v. Farnsworth, 15 Gray (Mass.) 423; Baird v. People, 83 Ill. 387; Helvey v. Huntington County, 6 Blackf. (Ind.) 317; Wentworth v. Gove, 45 N. H. 160; Spencer v. Perry, 18 Mich. 394; Richmond v. Brown, 66 Me. 373; Dogan v. Griffin, 51 Miss. 782. 2. Boykin v. State, 50 Miss. 375. And see BONDS, vol. 2, p. 448; PUBLIC OFFICERS, vol. 19, p. 378; SuretysHIP, vol. 24, p. 714. 3. Hindman v. Aledo, 6 Ill. App. 436; Clinton County v. Schuster, 82 Ill. 137; Ramsey v. Clinton County, 92 Ill. 225; Baird v. People, 83 Ill. 387; Kilgour v. People, 76 Ill. 548. In Livingston v. Anderson, 8o Ga. 175, it was held that the sureties of a defaulting tax collector's bond are subrogated to the rights of the state for the uncollected tax, upon settling with the state therefor, and may recover such taxes by appeal to equity, where no legal remedy is provided therefor. In Turner v. Teague, 73 Ala. 554, it was held that the statutory lien on the property of a collector for the payment of any judgment which may be rendered against him in his official capacity, is enforcible only in equity. 4. Wentworth v. Gove, 45 N. H. 160; Watson v. Walker, 23 N. H. 471; Hicks v. Burns, 38 N. H. 151; Brewster v. Van Ness, 18 Johns. (N. Y.) 133. Compare Moody v. Mahurin, 4 N. H. 296; Weston v. Ames, 10 Met. (Mass.) 247; Prairie v. Worth, 78 N. Car. 169; Worth v. Cox, 89 N. Car. 44; State v. McIntosh, Ired. (N. Car.) 307; Prairie v. Jenkins, 75 N. Car. 545; State v. Woodside, 9 Ired. (N. Car.) 496; Houston v. Russell, 52 Vt. 110. And see Tappan v. People, 67 Ill. 339; Dodge v. People, 113 Ill. 491; Carnall v. Crawford County, 11 Ark. 604. In Sweetser v. Hay, 2 Gray (Mass.) 49, it was held that if any demand of payment of a sum of money due upon a bond given by the town treasurer and collector of taxes to the selectmen, is necessary, before commencing an action on the bond, the demand upon such treasurer, made by two of the three selectmen and the town treasurer for the time being, after the three selectmen and treasurer have been appointed by the town, a committee to settle with the former treasurer is sufficient. See also Adams v. Farnsworth, 15 Gray (Mass.) 423. Where a collector fails to settle and pay over, at the time prescribed, it is the duty of the county court to adjust his accounts according to the best information that can be obtained; but such adjustment being but a preliminary step, he is not entitled to previous notice. Carnall v. Crawford County, 11 Ark. 604. And suit by the commonwealth on a collector's bond, is sufficient notice. Lehigh Crane Iron Co. v. Com., 55 Pa. St. 448. In Tappan v. People, 67 Ill. 339, it was held that while no demand is necessary in order to recover the amount collected by a collector, if it is also sought to recover a penalty for failure to pay over according to law, demand must be made, penal statutes being required to receive a strict construction. The form of the action may be assumpsit for money had and received; though, sometimes, a special action on the case, or, in some cases an action of debt, may be brought.3 (b) How Prosecuted. In the absence of statutory provisions, the proceedings are the same in a tax suit as in ordinary actions.4 The suit is generally required to be brought in the name of the state or municipality imposing the tax,5 and should be prosecuted generally by the officer to whom the money should have been paid over.6 1. Adams v. Farnsworth, 15 Gray (Mass.) 423; Richmond v. Brown, 66 Me. 373. In Hindman v. Aledo, 6 Ill. App. 436, it was held that where it is merely sought to recover a sum of money which the defendant has in his hands, and which is the property of the state or municipality, assumpsit will lie. In O'Neal v. Washington County, 27 Md. 227, it was held that the fact that a collector is responsible upon his official bond for moneys due the state, is no bar to an action of assumpsit for their recovery. In School Dist. v. Tebbetts, 67 Me. 239, it was said by Barrows, J.: "That, under any ordinary circumstances, an action of assumpsit by a school district against the treasurer of a town is not the proper remedy to recover any balance of their moneys which has been paid into his hands as such treasurer, is sufficiently obvious. The broad remark made by the court in Bailey v. Butterfield, 14 Me. 112, and McMillan v. Eastman, 4 Mass. 378, that an action of assumpsit, as implied by law, is never a proper remedy against a public officer for neglect or misbehavior in his office, might, under some unusual and peculiar condition of things, need qualification. See Adams v. Farnsworth, 15 Gray (Mass.) 423. But, ordinarily, a special action on the case, setting forth the particulars which constitute the default or misfeasance, or, in some cases, an action of debt, has been deemed the proper form." 2. School Dist. v. Tebbetts, 67 Me. 239; Bailey v. Butterfield, 14 Me. 112; Charleston v. Stacy, 10 Vt. 562. 3. School Dist. v. Tebbetts, 67 Me. 239; Bailey v. Butterfield, 14 Me. 112. 4. See Tappan v. People, 67 Ill. 339. 5. See Snyder v. State, 21 Ind. 77; Pepper v. State, 22 Ind. 399; 85 Am. Dec. 430; Fry v. State, 27 Ind. 348; Taggart v. State, 49 Ind. 42; Neal v. State, 49 Ind. 51; Scotten v. State, 51 Ind. 52; Cabel v. McCafferty, 53 Ind. 75; Caldwell v. Fayette County, 80 Ind. 99; Vanarsdale v. State, 65 Ind. 176; Solano County v. Neville, 27 Cal. 465; Tappan v. People, 67 Ill. 339; Dodge v. People, 113 Ill. 491. The recovery is in trust for the district by which the tax was levied. Tappan v. People, 67 Ill. 339. An official bond is not a "contract for the payment of money," within statutory provisions requiring actions on such contracts to be brought in the name of the party really interested. Morrow v. Wood, 56 Ala. 1. See Skinner v. Bedell, 32 Ala. 44; Rouse v. Moore, 18 Johns. (N. Y.) 407; Galway v. Stinson, 4 Hill (N. Y.) 136; Looney v. Hughes, 26 N. Y. 514. Under the Alabama Code, § 163, the official bond of a tax collector is properly made payable to the state, and an action thereon may be maintained by the county, as the person injured, on account of the default of the collector. Dudley v. Chilton County, 66 Ala. 593. In Wake County v. Magnin, 78 N. Car. 181, the court held that an action upon the official bond of a county treasurer for the recovery of money belonging to the school fund of the county, collected by him and not paid over, is properly brought in the name of the board of commissioners of the county. 6. See Clifton v. Wynne, So N. Car. 145; Gauntt v. State, 81 Ind. 137; Walton v. Jones, 7 Utah 462. In Gibson County v. Harrington, I Blackf. (Ind.) 260, it was held that county commissioners may sue a delinquent tax collector, even though the collector of the county is required to pay over to the county treasurer, and not to the county commissioners; but that they must assign non-payment to the county treasurer as a breach of the collector's duty. In North Carolina, to recover an amount due the county by a county treasurer, the action should be brought Proof of the receipt of the money by the collector, and of his delinquency in not paying it over, is sufficient to sustain the action, and to cast upon him the burden of showing that he has rightfully disposed of it.2 The defense of set-off will not be allowed the collector in an action against him by the state.3 A claim against a collector for taxes collected by him and not paid over is a fiduciary debt, within the bankrupt law, and is not barred by his discharge in bankruptcy.4 on the relation of the commissioners, and not by the succeeding treasurer. Wescott v. Thees, 89 N. Car. 55. A district attorney has authority, under the California Act of May 17th, 1861, to bring an action upon the official bond of a tax collector of a county, for moneys due both to the county and the state, on his own volition, with or without instructions from the comptroller, the county court, or the board of supervisors. People v. Love, 25 Cal. 520. But in Mississippi, where the proper officer fails to institute the action, it may be brought by any taxpayer who renders himself responsible for the costs. State v. Harris, 52 Miss. 686. In French v. State, 53 Miss. 651, it was held that in an action on the bond of a tax collector, under Code Mississippi 1871, § 1752, the declaration is bad, if it does not contain the allegation that the person on whose relation the suit is instituted is a taxpayer, and fails to aver that he is a citizen of the state. 1. Coons . People, 76 Ill. 383. And see Boothbay v. Giles, 64 Me. 403; Trescott v. Moan, 50 Me. 347; Cheshire v. Holland, 13 Gray (Mass.) 321; Houston County v. Dwyer, 59 Tex. 113; Ferrisburg v. Martin, 60 Vt. 330. But proof of a mere commitment to the collector, and a failure to account, is not sufficient. Boothbay v. Giles, 64 Me. 403. The comptroller's statement of the amount due from a tax collector to the state, is prima facie evidence against the collector and his sureties, but not conclusive. Anderson v. State, 8 Heisk. (Tenn.) 13; McLean v. State, 8 Heisk. (Tenn.) 22; Wood v. State, 8 Heisk. (Tenn.) 329. And see Johns v. State, 55 Md. 350. Evidence of the contents of the collector's books to show payment for taxes, cannot be given, when no reason is shown for not producing them. State v. Lewenthall, 55 Miss. 589. In the prosecution of a collector, for converting money collected by him as taxes, it may be shown that he received sums of money from different individual taxpayers. State v. Dale, 8 Oregon 229. In U. S. v. Hunt, 105 U. S. 183, it was held that a duly certified treasury transcript of the collector's accounts is admissible in evidence, although it contains no dates as to when the money was collected, it being certified to cover the period of his bond. 2. Coons v. People, 76 Ill. 383. And see Carpenter v. Corinth, 62 Vt. 111; Houston County v. Dwyer, 59 Tex. 113. He may show allowances and releases upon the trial. Petitt v. State, 8 Heisk. (Tenn.) 320. And instructions from the comptroller or other superior officer may be shown where set up in defense. Allbright v. Governor, 25 Tex. 689. If the collector has abstracted the record of his receipts and payments of taxes required by Mississippi Code 1880, §§ 517-19, his sureties cannot require that the state, after establishing his collection of the amount claimed, shall prove that he has not settled with the auditor. Gibson v. State, 59 Miss. 341. 3. Com. v. Rodes, 5 T. B. Mon. (Ky.) 318; Shaver v. Robinson, 59 Ala. 195; Finnegan v. Fernandina, 15 Fla. 379; Hibbard v. Clark, 56 N. H. 155; 22 Am. Rep. 442; Cobb v. Elizabeth City, 75 N. Car. 1; Wilson v. Lewistown, I W. & S. (Pa.) 428; State v. Baldwin, 14 S. Car. 135. Where the proportion of the land tax due to the county has not been paid, the collector, in an action on his official bond, cannot set off county orders against the claim. Byers v. State, 2 Ohio 106. 4. Richmond v. Brown, 66 Me. 375; Morse v. Lowell, 7 Met. (Mass.) 152. Fiduciary debts like those of the public against a tax collector, may be proved in bankruptcy, equally with other debts, The Statute of Limitations begins to run against an action for breach of a collector's bond from the time of the breach, and not from the date of the bond.1 Mere delay short of the statutory period, in enforcing the bond against a defaulting tax collector, does not release his sureties, nor impair their right of subrogation.2 (c) The Measure of Damages.--The tax collector is prima facie liable for the whole amount of his assessment roll; that is, for all the taxes committed to him for collection, in respect to which he has not exhausted his authority to enforce payment; and if he fails to pay in that amount at the proper time, the whole burden of proof is on him to show discharge, payment, or any other defense he may have in extinguishment of his liability.3 The measure of damages for taxes collected and not paid over, is the amount actually collected, with interest, deducting all payments made by the collector, and the compensation which he is if the creditor to whom they are due so elect; and if they are so proven, and dividends thereon are accepted, they are barred, like other debts, by the debtor's discharge. Morse v. Lowell, 7 Met. (Mass.) 152. 1. Moore County 7. McRae, 89 N. Car. 95. See also Barker v. Munroe, 4 Dev. (N. Car.) 412; Coomer v. Little, Conf. Rep. (N. Car.) 92. 2. State 7. Guilbeau, 37 La. Ann. 718; Vermilion Parish v. Brookshier, 31 La. Ann. 736. And see Northumberland v. Cobleigh, 59 N. H..250. Notice to Sureties.-Where the officers of a state knew of a tax collector's default under a previous term of office, but did not notify the surety of the collector on his bond, given on a subsequent appointment, it was held that the omission of the state officers to notify the surety of such default, is not a fraud, or fraudulent concealment of the fact by the state or its officers, and constitutes no defense to the surety in an action upon his bond for a subsequent default. State v. Rushing, 17 Fla. 226. 3. Vermilion Parish v. Brookshier, 31 La. Ann. 736; Vermillion Parish v. Comeau, 10 La. Ann. 695; State v. Powell, 40 La. Ann. 241; Scarborough v. Stevens, 3 Rob. (La.) 147; Boring v. Williams, 17 Ala. 510; Thompson v. Stickney, 6 Ala. 579; Timberlake v. Brewer, 59 Ala. 108; Gutches v. Todd County, 44 Minn. 383; Houston County v. Dwyer, 59 Tex. 113; Swan v. State, 48 Tex. 121; Cordray v. State, 55 Tex. 141; Shaw v. State, 43 Tex. 359; Burnett v. Henderson, 21 Tex. 590; Allbright v. Governor, 25 Tex. 687; 25 C. of L.-23 Lockhart v. Houston, 45 Tex. 317; Morris v. State, 47 Tex. 593; Olean v. King, 116 N. Y. 355; Gorham v. Hall, 57 Me. 58; Howard v. State, 8 Mo. 361; Jackson County v. Gullatt, 84 Ala. 243; Treasurers v. Cleary, 3 Rich. (S. Car.) 372. The safe keeping, by a collector, of tax money levied by a defunct village corporation, until someone has a right to demand and receive the same, is no breach of the bond. Dodge v. People, 113 Ill. 491. The Louisiana revenue laws require of tax collectors the performance of certain acts as conditions precedent to the allowance of deduction lists as credits in their favor-viz.: They must verify these lists with an oath that they have exhausted all legal means for the collection of the sums upon them, and must deposit them in the recorder's office at a certain time. Unless these requirements are complied with, they are not legally entitled to be credited with the amount of these deduction lists. State v. Viator, 37 La. Ann. 734. See also State v. Guilbeau, 37 La. Ann. 718. 4. Brunswick v. Snow, 73 Me. 177; James 7. Governor, 1 Ala. 605. Where a tax collector has improperly levied upon property, and it is purchased by the owner at the tax sale, the measure of damages is the price bid at the sale, and the amount of the tax should be deducted therefrom. Alexander v. Helber, 35 Mo. 334. And where the collector himself purchases at the tax sale, it is the value of the goods sold, deducting the amount applied by 353 entitled to receive, and including all penalties imposed upon the collector for delinquencies.2 (2) Summary Process-(a) Provisions for.-In many of the states, in order to secure the speedy payment of taxes collected, and to enable judgment to be obtained without the usual delays incident to ordinary actions, summary remedies are provided against defaulting collectors and their sureties.3 Thus, summary judgment may be obtained against the collector and his sureties on motion or order to show cause, or a warrant of distress or execution may be issued against them by the treasurer or other proper officer.5 the collector to the payment of the tax. Pierce v. Benjamin, 14 Pick. (Mass.) 356; 25 Am. Dec. 396. It is not necessary that the amount of the default of a tax collector should have been ascertained by a judgment at law; such default may be ascertained and determined, and the lien enforced, by a proceeding in equity. Knighton v. Curry, 62 Ala. 404. 1. Brunswick v. Snow, 73 Me. 177. 2. Christian v. Ashley County, 24 Ark. 142; Tappan v. People, 67 Ill. 339. Penalties may also be recovered of sureties for the collector. Tappan v. People, 67 Ill. 339. In Johnson v. Thompson, 4 Bibb (Ky.) 294, it was held that a judgment against a principal is not admissible evidence against his deputy, when he was not a party to the suit, and is liable to the principal without a judgment. 3. See Weimer v. Bunbury, 30 Mich. 201; Boring v. Williams, 17 Ala. 510; Bassett v. Governor, 11 Ga. 207; Vermilion Parish v. Brookshier, 31 La. Ann. 736; Akers v. Burch, 12 Heisk. (Tenn.) 606. The power to collect taxes is not exhausted by the receipt of the money by the collector. Its purpose is to raise money for the use of the government, and, whoever may have possession of it, the power to use appropriate means to secure its proper application, continues until its actual disbursement. Den v. Hoboken Land, etc., Co., 18 How. (U. S.) 272. 4. Carmichael v. Hays, 66 Ala. 543; Armstrong v. State, Minor (Ala.) 160; Com. v. Rodes, 5 T. B. Mon. (Ky.) 318; De Soto County v. Dickson, 34 Miss. 150; Akers v. Burch, 12 Heisk. (Tenn.) 606; Mallory v. Miller, 2 Yerg. (Tenn.) 113. In Alabama, the motion may be made in the name of the county, and is not required to be in the name of the treasurer, Stamphill v. Franklin County, 86 Ala. 392; and a judgment by default in such summary proceedings is conclusive as to the amount then due. State v. McBride, 76 Ala. 51. A motion against a tax collector carries with it the right to judgment against the securities. Brown v. State, 8 Heisk. (Tenn.) 871. In Missouri, the practice is for the county court to ascertain the balance due from the collector to the county, and order its payment, and on his failure to respond, to render judgment against him at the next term, and order execution to issue thereon. Owens v. Andrew County Ct., 49 Mo. 372. 5. Crawford v. Carson, 35 Ark. 565; Bassett v. Governor, 11 Ga. 207; Smyth v. Titcomb, 31 Me. 281; Tremont School Dist. v. Clark, 33 Me. 482; Scarborough v. Stevens, 3 Rob. (La.) 147; Weimer v. Bunbury, 30 Mich. 201; Bringard v. Stellwagen, 41 Mich. 54; Myers v. Com., 34 Pa. St. 270; Den v. Hoboken Land, etc., Co., 18 How. (U. S.) 272. And if the treasurer neglects to issue his warrant of distress against the collector, mandamus lies to compel him. Waldron v. Lee, 5 Pick. (Mass.) 323. In Phillips v. Robbins, 59 Mo. 107, it was held that where one is both collector and sheriff, a writ may issue against him to the sheriff of an adjoining county, without further proof that the sheriff of the proper county is disqualified. No particular form is prescribed by the Louisiana statute, for a warrant or execution on behalf of the state, against a delinquent tax collector. Scarborough v. Stevens, 3 Rob. (La.) 147. Necessity of Return.-An officer levying on an extent against a delinquent tax collector, under the Vermont statute, is not required to make a return; and such return, if made, can be varied by parol evidence. Hackett v. Amsden, 57 Vt. 432. |