Mayo v. Renfroe

66 Ga. 408

• Court: Supreme Court of Georgia
• Decided: February 15, 1881
• Status: Published

Opinion

Jacioon, Chief Justice.

By direction of a resolution of the general assembly in 1879, the governor of the state, in January, 1880, issued two executions against John W. Renfroe and sureties, one for the sum of $5,037.81, and the other for $17,761.49, besides interest and penalties ; the first purporting to be on his bond as treasurer of the state under his election in 1876, to fill the vacancy of the preceding treasurer, and the other on his bond under the election of 1877 for the full term. These executions were levied on several tracts of land in the county of Washington, some as the property of Renfroe, and others as the property of Wilson, one of his sureties on both bonds. Thereupon Renfroe and Wilson each filed a separate bill praying that the sheriff of the county be restrained from selling the property levied on until the equities of the cases could be heard before the superior court of Washington county, and then that he be perpetually enjoined from enforcing them. The only party defendant to the bills is the sheriff, and they are brought in his county and the county of the situs of the property of complainants on which he has levied.

The presiding judge of the Middle circuit being disqualified on account of relationship to one of the sureties, the application for the injunction was heard before Judge Simmons, of the Macon circuit, who granted the ad interim injunction, and the legality of that judgment is the error assigned. The question was tried before him on the bills and demurrers thereto, together with the certificate of Mr. Avery, one of the secretaries of the executive department, and an affidavit of ex-governor Smith.

1. The demurrer makes the point that the parties are not sufficient, the execution being issued by the governor of the state. The governor could not be made a party— being the head of a co-ordinate branch of the government, the courts may not well enjoin him — equity as well as law, would seem to forbid it. The process of the courts is directed to the. subordinate officers of the executive and those agents who are illegally using the authority of the state to oppress the citizens. The exceptions, if any, are few, when he can be brought into the courts officially at all. 8 Ga., 372 ; Code, §3202 ; supplement to Code, 397; 23 Ga., 438; 25 Ib., 374; 31 Ib., 277; 37 Ib., 240; 43 Ib., 605 ; 45 Ib., 365.

His duty in the last resort is to enforce the process of the courts. Code, §51. The idea of making him a party defendant without his consent, is inconsistent with this great duty. He is the executive ot the process of the courts, as well as for the enforcement of all law generally, and the administration and enforcement of law through the courts is at last the great practical benefit which .government confers on the citizen.

Besides it is made his duty to defend suits against any person where the state is interested. Code, §§22, 74; and this has been done in this case — the attorney-general filed the demurrer for the sheriff, and the governor is in through his legal adviser and representative for all practical purposes, and in the only way in which he could well appear for the state.

2. It is again insisted that the superior court of Washington county has no jurisdiction of the cause, inasmuch as no substantial relief is' prayed for' against the sheriff, The relief asked, if granted, would seem quite substantial. It would shield the real estate of complainants lying in that county, and seized by the sheriff, from all molestation by that officer, and by these executions, and would give complete relief, and the only possible relief in the premises, if the complainants are entitled to any. No other court or courts has jurisdiction ; nobody else can be sued ; this sheriff is the man who has seized these lands and is doing all the damage, and that damage can be arrested only by restraining him. But we think that this'question was virtually settled in the case of The Southwestern Railroad Company vs. the Comptroller-General and the Sheriff of Bibb County, at the February term, 1880. There we upheld the jurisdiction of Bibb county, though the comptroller-general resided in Fulton, and though the superior court of Fulton county had jurisdiction of the same character of cases at common law on affidavit of illegality by special statute.

This court decided that as the sheriff was enforcing the tax executions in Bibb, by levying on property therein, and advertising it for sale there, that he was such a substantial party as to give the superior court of Bibb county jurisdiction. This is a stronger case than that for the jurisdiction. In that case there was another party — the agent who issued the fi. fa. and ordered the levy- — and he resided in another county; in this there is no other party, and cannot well be another ; and if the executions cannot be stopped by prayer for relief against him, they cannot be stopped at all — no matter how large and luminous the equities of complainants may be. Wherever there is a right there must be a remedy; and it must be in the jurisdictional power of some court in the state to apply the remedy and redress the wrong.

3. It is again insisted that under the Code and the statute which authorized the issue of these executions by the governor, there can be no judicial interference anywhere . — that the statutes of the state expressly prohibit it — and no seeming equities can rise higher than the mandate of the statute. Unquestionably if a valid act of the general assembly prohibits the interference of the courts, no court either of law or equity can intervene, and the one is as powerless as the other. The question therefore faces us, what does this statute mean ? And if the answer be, it means that under no circumstances whatever — in no conceivable case — not even where the surety never, in fact, signed or authorized anybody to -sign the bond — where the treasurer himself never made or tendered any bond at all — and yet the execution is issued and levied and the property of alleged principal and surety to a paper which neither ever executed, is seized and about to be sold— there can be no interference, the question faces us again, if that be the meaning, is the law so construed a valid, constitutional law?

First, what does the statute mean? The act of 1876, codified in supplement to the Code, section 20, prescribes that if the treasurer fails to perform the duties of his office, misapplies or uses the funds of the state, fails to account for and pay over any moneys that he may have received by virtue of his office, whereby he becomes liable to the state, it shall not be necessary to sue his official bond, but the governor is hereby authorized to issue a fi. fa. instanter against the treasurer and his securities for the amount due the state by the treasurer, with the penalties and costs, said fi. fa. to be directed to all and singular the sheriffs of said state, and shall be executed by them; and the treasurer and his securities shall have only those defenses now allowed tax collectors against fi. fas issued by the comptroller-general against them.

Section 912 of the Code, enacts that “ executions so issued, (that is against collectors of taxes), shall not be suspended or delayed by any judicial interference with them, but the governor may suspend the collection not longer than the next meeting of the general assembly.”

Section 3668 of the Code, which is the parallel section in regard to executions by collectors against tax payers, enacts that, “ no replevin shall lie, nor any judicial interference be had, in any levy or distress for taxes under the provisions of this Code, but the party injured shall be left to his proper remedy in any court of law having jurisdiction thereof.”

These sections, 912 and 3668, seem to have been codified from the tax act of 1804. Cobb’s Digest, pp. 1051-2; the last, 3668, being an exact transcript of the latter part of section 21 of that act, except substituting the words “provisions of this Code” for the words “under this law;” and the other seems to be derived from the latter part of section 24 of the same act, which is, “ and no execution issued by the treasurer in manner herein prescribed shall be stayed by reason of the death of the said collector or his securities, as to the sum due or the.legality of the execution.”

These sections of the Code and the sources whence they sprung have been before this court on several occasions, most, if not all, of which are cited by the exhaustive brief of tue counsel for defendants in error; and it is not easy to reconcile them all with each other. But that judicial interference has been had in some cases, and that the most illustrious names that adorn the roll of the judges of this bench, Chief Justices LUMPKIN and WARNER, have authorized it to be done, and one or both delivered the judgment of this court sanctioning such interference, there is no doubt. 27 Ga., 357; Decisions of WARNER, C. J., in 42 Ga., 428; 46 Ga., 332; 47 Ga., 642; 53 Ga., 588; 54 Ib. 330; 59 Ib. 354, 807; 60 Ga., 61, 508; Wright, Comp. Genl., et al. vs. Southwestern Railroad Company, February term, 1880. In the judgment in the last case, my late venerable colleague, Chief Justice WARNER, fully concurred ; and my late learned associate, Justice BLECKLEY, as well as the late Chief Justice, always held that where the tax was unconstitutional, against law, there could be interference and the courts should interfere. The truth is, that my own mind halted more in the path towards the final solution of the trouble than either of theirs; but the constitutions of 1868 and 1877, having required the judiciary to declare unconstitutional enactments inoperative, and the only mode I could imagine being on a case made invoking judicial interference, I was convinced that in such case interference could be had by the courts; and if for any other reason the imposition of the tax was clearly illegal, the same reasoning led me to conclude that there might be intervention by the courts. And so this court has held in regard to tax collectors as well as tax payers. 3 Ga., 233; 43 Ib. 480; 51 Ib., 252.

When, then, the act of i%j6supra remanded the treasurer to “ those defenses ” which the tax collectors might make to executions issued against them, the meaning must have been those defenses which the courts had allowed them to make and tax payers to make under the prohibitions of judicial interference. In other words, the construction which the courts had put on these sections of the Code entered into the legislative mind, and the defenses allowed the other defaulters were allowed the treasurer and his sureties.

This must be the meaning; otherwise the words “those defenses” in the act of 1876 are meaningless. They could not have referred to the clause that “ the governor may suspend the collection not longer than the next meeting of the general assembly,” for that can hardly be called one defense; certainly it is not “ those defenses;” it is not more than one defense, if a defense at all. It is a mere petition for time. It is grace optional with the governor ; it is no legal defense to an execution about to sell out a defendant, much less is it “ those defenses ” which the act of 1876 says that the tax collector had, and which it gave to the state treasurer and his sureties.

What, then, are those defenses which the tax payer or collector and sureties might make in the courts?

First, they might resist an unconstitutional exaction, because such a thing called a tax is no tax. Secondly, where the law does not impose the tax or authorize the execution, for the same reason that the exaction is. not a tax, and the execution, not being authorized by the statute or in conformity to it, is not that process which the law declares shall not be interfered with by the judiciary; and thirdly, where the defendants were not in fact the tax, collector or sureties for such an officer, or executed no bond, for the reason that the bond on which the execution is based, was no bond, or the principal proceeded against was not a tax collector or the surety not a surety.

Perhaps other illustrations of what may be termed exceptions to the general rule, our reports will furnish, but the above seem to us deducible clearly from those reports, and sound and irresistible as propositions almost self-evident; if not entirely so.

4. Applying these principles to this case, and giving the treasurer and sureties those defenses which the law gave to tax collectors and sureties, how stands the case ?

In regard to the first execution, that for 1876, the facts are that Renfroe never signed a bond at all, that Governor Smith never accepted any, and the execution is based on a paper as a treasurer’s bond which the principal never executed, and the state never accepted. It is a contract under seal never made by the obligor and never delivered to or received by the obligee. This appears from the face of the paper itself, from the deposition of governor Smith, and the certificate of,Mr. Avery.

The act of 1876 did not contemplate a summary and irresistible fieri facias to issue upon such an unexecuted paper. The execution is not then within the statute, is not authorized by that or by any other law, and is in conflict with all law of which this court has ever heard. The so-called bond is no bond, either statutory or at common law, and has no more force than a blank. No execution to make money out of anybody can be based on it, and to arrest such an execution the judiciary of the state must.intervene.

5. The other and larger execution, issued on the bond of 1877, is not so free from doubt. The bond on which it is based is signed by the treasurer and sureties, including the complainant, Wilson, and therefore there is a treasurer’s bond, accepted, too, by the governor, and of file in the executive department, but not within the time prescribed by law. Nor does it appear to have been taken in accordance with the act of 1876 and the Code of the state in several other particulars. It was not exe. cuted within forty days from the election of the treasurer. It was not recorded within the time prescribed by law in the office of the secretary of state, and the sureties not one of them made oath that he'was bona fide worth over and above his debts, exemptions and liabilities of all kinds, property in realty and personalty not less than the specified sum for which he was bound; nor was this oath attached to the bond and recorded therewith, as required by the act of 1876. It cannot, therefore, be said to be a statutory bond, taken in accordance with the act of 1876 and statutes in pari materia.

This court has repeatedly ruled on this point and been strict in holding that to make a valid statutory bond there must be a rigid compliance with the statute ; 1 Kelly, 580, and subsequent decisions passim ;■ — and that, where no summary remedy with very limited defenses is. allowed, but where regular suits on the bond, and verdict and judgment, after trial by jury, must precede final process.

Of course the ruling should be at least as strict where, without trial, the execution is issued instanter. There are other failures to comply with the statute in the verbiage of the bond and other requirements of the law touching it; but these are sufficient to show that it is not a valid statutory bond.

6. But section 167 of the Code is invoked by the attorney-general to show that if bad as a statutory bond and yet good as a common law bond, this statutory and summary remedy may be based upon it. That section is : “ Whenever any officer, required by law to give an official bond, acts under a bond which is not in the penalty payable and conditioned nor approved and filed as prescribed by law, such bond is not void, but stands in the place of the official bond, subject, on its condition being broken, to all the remedies, including the several recoveries which the persons aggrieved might have maintained on the official bond.”

The meaning of this statute or section of the Code, we think, is to be gathered from the earlier decisions of this court, whence the codifiers drew it. Those decisions were that the bonds were valid, though not in accordance with the statute, but when one recovery was had on the bond for the benefit of one person aggrieved, then it was exhausted, and all others, however much damaged, were remediless. In codifying these decisions, the compilers, followirig the Alabama code, by direction of the statute which created them, gave these remedies to all suitors successively until the penalty was exhausted. . 1 Kelly, 574; 5 Ib., 499.

This summary remedy by the state against the treasurer was not in the contemplation of that act; for that is the creation of the act of 1876, long afterwards. Nor does any summary remedy by the state against any public officer seem to have been included. The section gives to persons aggrieved all the remedies which they might have maintained on the official bond, and none of them ever had any summary remedy against any public officer on his official bond. All must sue regularly, and prove the breach and recover the damage proved to the satisfaction of court and jury after trial. And the context of the section — those sections preceding and following 167 — show that the bond is to remain valid for such remedies and such only as persons wronged by these officials "might have.

7. It may well be doubted, too, whether this bond is good at all in so far as the sureties are concerned, when none of them qualified as to the estate they possessed over and above indebtedness and exemptions. However, as none of them took the oath themselves, and perhaps each signed with the knowledge that the others had not qualified, it would not lie in their mouths to make this objection to the bond as a common law bond, especially as it is recited in the bond that an oath was taken, though the oath itself is not attached to the bond as required by the statute. It is also true that each was bound for .a certain amount, but each was entitled, nevertheless, to contribution from every other, and, unless estopped by his own conduct, was entitled to have that other sworn as to his capacity to respond. At all events, the requirement of the oath is not merely directory, but it is of consequence primarily to the state and .secondarily to the sureties; and certainly it is of sufficient importance to vitiate the bond as a statutory bond, and in the view we take of the scope and operation of section 167 of the Code, if it be good as a common law bond only, this summary proceeding cannot rest upon it.

8. To our minds, also, there is difficulty in the manner in which the execution was issued. The act of 1876 is a general law, making it the duty of the governor to issue execution on bonds taken in accordance therewith for sums which he shall find due according to modes chosen by himself. Of course this he may do by agents or by any sources of information deemed reliable by him; but he is to be left free to select his .agencies and sources of information.

This is the extent of the ruling in 46 Ga., 325 and 350, and those cases rested on a special act in regard to the officers of the state road. There, too, the court would not permit the parties to go behind the face'of the executions. But these-executions show on their faces that a special joint resolution was passed, fixing the amount- of liability and requiring the Governor to issue the executions for those sums. Is not this special legislation — case legislation, and is it not in the teeth of the constitutions of 1868 and 1877? Code, §5018 ; Sup., to Code §505. “No general law affecting private rights shall be varied in any particular case by special legislation except with the free consent in writing of all persons to be affected thereby,’’ is the language of both constitutions. Does not this special joint resolution affect the private rights of the treasurer and of his sureties, and does it not vary this general law and specify certain sums for which executions are to issue?

If suspension of the execution by the governor and appeal to the legislature is the only redress of the treasurer and his sureties, it would seem that the appellate power had taken the initiative, and prejudged the case it was to try. The general law cannot be and ought not to be allowed to be so varied as to meet the emergencies of special cases, either to confer favors or to inflict retroactive penalties upon citizens or officials. Unquestionably under patriotic impulse, and to redress what the general assembly deemed a great wrong, the special resolution was passed, but the prohibition against varying general laws to suit special cases, is put in the fundamental law for the very purpose of preventing impulse from controlling legislation, or emotion towards individuals, whether of indignation or sympathy, from influencing the cool current of legislative judgment. It is true this is a joint resolution, yet it is legislation and has accomplished the purpose of special legislation, to-wit: to have these fi. fas issued for certain amounts and collected out of' certain people. Suppose it had passed a special act to the effect that execution issue for certain sums against Renfroe and his sureties,' and that no defense should be made to their collection, and that no court should arrest the proceedings, who would uphold the law as constitutional or in accordance with the great underlying principles of right in all civilized societies, where private property is protected by law? And yet this is precisely what has been done, except that the act is in the shape of a joint resolution, if it be true that the courts cannot intervene. Such cannot be the law.

We hold; therefore, that the courts may interfere, and ought to do so, by bill in equity and injunction, if there be no adequate remedy at law, and if thereby the equities set out in the bill authorize it. It is alleged that affidavits of illegality have been tendered and refused by the sheriff, th.at the lands of complainants are divided among divers tenants, that they have crops growing, and if dispossessed, multiplicity of suits would result, that the sale of their property, however illegal, would cloud their title, that the sheriff could not respond to the damage done, not having property enough, and his bond not covering the half of the executions; and in view of these allegations the complainants invoke the restraining order of the chancellor until all the questions made can be fully tried.

We cannot see^ that the chancellor erred in granting that restraining order. It may be that the treasurer and surety are liable to respond to the state'for the money made by the use of the public funds. It may be that, on proper pleadings, by answer, or answer in the nature of cross-bills to these bills of complainants, recovery maybe had by the state for such sums as may have been received by the treasurer and his sureties on account of. interest which he made by the use of public money. On these questions we decide nothing. All that we do decide is that on neither of these bonds can these executions summarily make the money which is therein specified, and that until the whole case can be fully and fairly heard in open court, the chancellor was right to grant the ad inte rim injunction.

I" Judgment affirmed.