Cannell v. Crawford County

59 Pa. 196, 1868 Pa. LEXIS 244

Opinion

The opinion of the court was delivered, November 9th 1868, by

Thompson, C. J.

The 1st assignment of error on this record is upon the admission in evidence of the bond to the county of Crawford, of the defendants below, now plaintiffs in error, because of numerous erasures and interlineations on its face, unexplained. This would be a sound objection if its execution were denied by plea. But that is not the case. The plea is “ payment with leave to give the special matters in evidence.” The judgment which had been entered on this bond, by virtue of a warrant of attorney, was opened on the terms of so pleading, and whether the plea is to be considered applicable to the bond or to the judgment, it is immaterial. In either ease, the original cause of action, the bond, was admitted by it. Indeed, the plaintiff was under no conceivable necessity to give it in evidence at all. The judgment would stand good unless a legal or equitable payment and discharge were established. It needed no support at the outset from the bond or anything else. This alleged error is therefore not sustained.

2. Nor do we think there was error in admitting the minute-book of the commissioners. Badly as these minutes were kept, they contained some evidence of the appointment of Cannell as collector of taxes for the year 1865, of the borough of Titusville. The bond signed by him and his bail, admitted this beyond a doubt, and the exclusion of the minutes could do him no good, nor did their admission- do any harm, under the Circumstances.

3. The next assignment is to the admission of William Warner, one of the county commissioners of 1865, to testify. The 6th section of the Act of April 16th 1840, made him competent. The words are, “ no person shall he excluded from being a witness or juror in any suit, prosecution or proceeding, in which any county, city, incorporated district, borough or township is a party, or is interested by reason of such person being, or having been, an. officer, rated citizen or inhabitant in such county, city, district, borough or township, or owning assessed or taxable property, or being liable to the assessments or payment of any taxes therein.” In the case of Wilson v. Clarion County, 2 _ Barr 17, the commissioners were admitted to testify for the county against the defendants, although the auditors had reported their liability for the subject-matter which their oaths went to charge the defendant with, and, of course, to discharge themselves from. The legislature had discharged them from the common-law objection on the score of interest by the act in question, and it had full power to do this. This was a stronger case for objection than the present, and it rules it. This error is therefore not sustained.

4. The next matter to be considered, and the principal matter of the case, is to be found, not only in the rejection of evidence, but in various answers of the court to points put by the defendants. It may be stated thus: The defendants offered to prove, in connection with evidence already in (showing that one B. S. Burgess had, prior to the appointment of Cannell, been appointed collector of Titusville borough, and had received the duplicate accompanied by a warrant to him to collect the taxes of the borough for 1865, but did not qualify by giving bond, and that no other duplicate or warrant was issued to any other person for that year), that B. S. Burgess actually collected $500 taxes, charged in that duplicate, and that $3300 more were collected by his son, B. F. Burgess, and so marked, in both instances, on the duplicate; and further, that the whole amount collected by Cannell on said duplicate had been paid over to the county treasurer. This was offered for the purpose of showing that the sureties were not answerable for the taxes collected by the Burgesses. This offer the court overruled, and charged, there being evidence to raise the question, in substance, that if the jury believed the evidence, Cannell was duly appointed collector and qualified as such by giving the bond in controversy, and receiving the duplicate, and if he failed to account for the amount of taxes thereon charged, the defendants were liable to the extent of the deficit; and that the fact that the warrant was addressed to Burgess, who did not qualify, did not nullify the appointment of Cannell, who did qualify, by giving the bond; that it would not release the defendants from the performance of the conditions of the bond, “ if no warrant had accompanied the duplicate.” There was no testimony of any kind to show that the duplicate was ever delivered to Cannell by the commissioners, but that he got possession of it and collected a portion of the taxes is not to be disputed. The fact that the warrant was issued to Burgess, was conceded by the learned judge, and this was a concession also that the duplicate was delivered to him — the one accompanied the other from the hands of the commissioners. They are inseparable. The question now is, therefore, whether the sureties of Cannell can, be holden for taxes never collected by him, and which were collected by Burgess and his son, most likely as agent, and which the former had no legal authority by warrant to collect ?

The 19th section of the Act of 1834 provides, that “ no person shall be appointed collector of county rates and levies, unless he shall give bond in such amount as shall be determined by the commissioners, with warrant of attorney to confess judgment thereon, and with such surety or sureties therein as shall be satisfactory to the commissioners, or a bond with a mortgage of real estate sufficient to secure such amount.”

This being done in one or other of the modes pointed out, the collector is qualified, and what then ? The 20th section of the act will answer:—

“ The commissioners * * * shall issue their warrants with the duplicates aforesaid to the respective collectors * * * * authorizing and requiring them to demand and receive from every person in such duplicates named, the sum wherewith such person stands charged.”

It needs no arguments to prove that the warrant is the official authority of the collector to demand the taxes, and to enforce their payment by seizure of property or person. Without it he has no legal authority to do either. Nor could he use a warrant directed to any other person for such purpose, unless specially authorized by such other person to do so as deputy. The Act of Assembly required the commissioners to arm the collector with this authority, and the bond recited that it had been done. The recital was false. The authority was never given to Cannell, the alleged collector. Surely his bail could complain of this. It was an official' statutory bond which they executed, and it is not to be presumed that they undertook on any other terms than those prescribed by law. They were entitled to all of these, no less and no more; and they have a right to presume that the commissioners would furnish, or had furnished, the collector with the requisite warrant, and were in no way bound to see that they had. If they did not, they are not bound. Not only was there no warrant to Cannell to collect, but there was a warrant to B. S. Burgess accompanying the duplicate delivered to him, which was never revoked. Under this warrant, with the duplicate in his hands, he and his deputy could collect from the tax-payers, and did, for they are credited on the very duplicate for taxes paid to him and to his son. It is not an answer to this, to say that he did not qualify and was therefore not legally authorized to collect. To the tax-payer without notice, he was legally qualified, for the commissioners had power by the 2d section of the Act of 28th of February 1835, to appoint collectors without sureties, or bond and mortgage. In making payments to him they would, without a full knowledge of the circumstance that he was not a freeholder, if he really was not, be sheltered by the maxim omnia presumunticr rite esse acta in its application to the commissioners. It is an undisputed fact that he did collect the entire amount of the deficit attempted to be charged to the account of the defendant and his sureties. This could not be done without flagrant injustice. On the subject of the want of a warrant and its effects on the sureties, we are not without authorities, English and American. The case of Kepp v. Wiggett, 14 Jur. 1137, and to be found in 7 Harr. Dig. 245, is direct to the point. It may be stated as follows: “ The defendants, as sureties of one J. L., executed, on the 5th of October 1846, a bond to the plaintiffs, who were commissioners under the income tax acts, by which bond, after reciting that J. L. had been duly appointed collector of the duties granted by these acts, assessed within the parish of M., and that a duplicate of the assessment had been delivered to J. L., with a warrant for collecting the same, the defendants became bound for the payment of all such sums assessed and collected for the year ending April 1847, or to be assessed and collected in said parish by J. L., as such collector as aforesaid. A duplicate of the assessment of duties under schedule A., made on persons in M. for the year ending April 1847, had been delivered to J. L. by the plaintiffs, together with a warrant for collecting the same, but no such duplicate of assessment under schedule D., nor warrant for collecting the same, had been delivered to J. L. J. L. died, having received previously some of the duties under schedule A. and D., for which he had given the usual receipts as collector. It was held that defendants were not liable in respect of the duties under schedule D., as for the want of a duplicate and warrant J. L. had not at the time the authority to receive the same.” The principle is recapitulated in this case thus: “ The sureties to a bond given by a person appointed a collector of income tax, and conditioned for the payment of all sums assessed and collected by him as such collector, are not liable for sums collected by him without legal authority. Such person has no authority to collect sums assessed until he is furnished with a duplicate assessment and warrant to collect, mentioned in the act.” The principle of Stewart v. Miller, 4 W. C. C. Rep. 26, is to the same effect: “The contract then,” said the judge, “in effect was, that the defendant should guaranty the good conduct of an officer clothed with powers and duties defined and circumscribed within a proper sphere, in which he might legitimately act as such officer.” See also Miller v. Stewart, 9 Wheat. 681, and United States v. Kirkpatrick, Id. , in the latter of which cases it is said, “ the bond in question was given with express reference to the commission, and its obligatory force was consequently confined to acts done while that commission had a legal continuance, and could not go beyond it.” To the same effect is the ease of Legh v. Taylor, 7 B. & C. 491. The commission here did not exist at all, so far as Oannell was concerned. It was in Burgess, and could not be used by Oannell, except under a deputation by the former, and to this the bond of the sureties did not extend. On these principles the sureties on this bond were liable for such sums as their principal might collect, according to the requirements of the duplicate and warrant, and perhaps to such as he might actually receive by color of authority, but for no more. This is the express provision of the bond, and no court could extend it without injustice and wrong to the sureties. As the principal had no warrant, and another had, the sureties are not liable for what he failed to collect, much less for that which others collected by virtue of the duplicate and warrant. We hold the sureties liable for their engagement and no more.

We are, therefore, of opinion that the court erred in rejecting the proffered offer of testimony, and in charging as it did on the points noticed, and for these reasons the judgment is reversed.

Judgment reversed, and venire de novo awarded.