Moore v. Foote

32 Miss. 469

Opinion

Handy, J.,

delivered the opinion of the court.

This was an action brought in the name of the Governor of this State, for the use of the Board of County Police of Carroll county, against the plaintiffs in error as sureties on the bond of William P. Bole, as tax-collector for Carroll county, to recover a certain amount of county taxes for the year 1850, collected by that officer, and remaining unpaid. The principal being dead when the suit was instituted, it was brought against the sureties alone.

The case was determined in the court below upon demurrer to the declaration, and upon an agreed state of facts, upon which it was submitted, whether the plaintiff was entitled to recover, and which are in substance as follows: — That the assessor’s list, or assessment roll, for' the year 1850, did not contain a separate column on which was set down the amount of county taxes due from the tax payers of the county, nor was there any mention on said assessment roll in relation to any of the county taxes sued for, nor any county tax stated therein, either as to the total amount levied or the separate share of each tax payer, or in any other respect whatever; nor any statement that any county tax had been laid by the Board of Police for that year; that the assessment roll, so far as the State tax is concerned, was in all respects legal and regular, and that the Board of Police did legally levy a county special and poor tax for that year, and of the sum so levied, the tax-collector, Bole, collected the sum of $2180.84, which he failed to pay. over.

Upon this submission, judgment was rendered for the plaintiff, and the defendants below have brought the case here for revision.

It is admitted that the assessment list, of the description stated in the agreement, was duly delivered to the tax-collector, and that in virtue of it he collected the taxes sued for; and the question is, whether such collection created a liability upon his official bond upon his failure to pay over the moneys so collected.

It is insisted in behalf of the plaintiffs in error that, in order to constitute a valid assessment, it was essential tliat the assessment list which came to the tax-collector’s hands, and upon which it was his duty to collect the taxes from the persons therein named, should ' distinctly specify the sums due from each individual tax payer, both for his State and county taxes, and as the assessment list in question did not contain any such specification as to the county taxes, there was no legal assessment as to those taxes; and there could be no legal collection of them, because the tax-collector had no authority in law to make the collections, and therefore that no liability was created thereby upon his oficial bond.

In support of this view, the counsel for the plaintiffs in error rely upon the provisions of the 16th section of the Revenue Act of 1846, Hutch. Code, 188, which is as follows: “ The number of acres of taxable and untaxable and vacant lands, as the case may be, shall be added up in their respective columns, also the value of the lands, and the sum of each shall be placed at the bottom of each page, under their respective columns; then the amount of taxes at the right hand of each page shall be added up, and said assessors shall then enter the amount of taxes that are due on the aggregate value of the taxable lands, at the bottom of the page, which must agree with the aggregate amount of taxes in the right hand or tax column of said lists; and in like manner shall each page be proven to be correct; and 'at the end of the assessment lists they shall recapitulate the sums of each page, and make the taxes upon each sum of the aggregate value' of the whole lands of their counties respectively, agree with the aggregate amount of the whole taxes in the right hand or tax column.”

We do not perceive the particular object of these provisions, unless they were intended to be merely directory to the assessor, in order to insure greater accuracy and regularity in his assessment lists. They apply only to lands, and it is not to be supposed that, if it had been intended to prescribe the mode in which the assessments should be stated by the assessor, and without which they should not be valid, so large an amount of the taxable property in the State as consists of personal estate, would have been omitted in the regulation. It is true, that the subsequent Act of 1850, ch. 1, § 4, made a similar provision with regard to personal property; but this does not tend to show that the former Act contemplated more than is above suggested, nor that either or both of the Acts intended any thing further than to prevent errors in the assessment lists, and to render them more plain and satisfactory to the accounting officers, to whom the moneys were to be paid by the tax-collector. It was, therefore, a matter not affecting the assessment, but merely a directory regulation as to a matter of detail in making out the assessment lists, with a view to greater'certainty and accuracy in these documents upon which the State and county finances depended, and which, as public records, it was deemed proper to have as full and explicit as possible; and we do not think that the regulation was a condition precedent to a legal assessment.

It is certainly true, that there can be no collection by the tax-collector which will create a liability on his official bond, unless there has been a legal assessment. But what is required to constitute a legal assessment ?

The 4th section of the Act of 1846, above cited, requires “ that in each and every year, the tax-assessors shall assess all the polls, and all the real and personal property subject to taxation in their respective counties; they shall prepare an assessment roll, in which he shall set down, in separate columns, the names in full, of all the taxable inhabitants of the county, and each item of taxation, whether taxed ad valorem, or otherwise.” Hutch. Code, 184. This is the portion of the law which we think was intended to prescribe the duties of the assessor, as to the mode in which the assessment was to be made. And it is sufficiently full and explicit for all useful, practical purposes. It makes it his duty “ to assess all the polls, and all the real and personal property subject to taxation in his county,” and points out the mode in which this shall be done. His main duty is to ascertain and state the value of all the property, &c., within his county. When his roll is completed, he is required to return it to the Board of Police, and until he does that, no connection exists between him and that tribunal. He makes his assessment and valuation of the taxable property in his county, wholly independently of the Board of Police. He has no information in relation to the amount of money required to be levied — his proper functions do not require that he should have such information, nor does the law make any provision for communicating it to him; consequently, without that he would be totally unable to ascertain or state upon his roll the amount of county taxes which each tax payer was required to pay. The settlement of the amount of money required to be raised for the county use, and of the rate per centum upon the State tax to be paid by each tax payer, is exclusively and necessarily the province of the Board of Police. If this were done by the assessor, it would not be merely an assessment of the amount and value of the taxable property and means of the county, but virtually a levy of the county tax, which is wholly foreign from his functions as assessor, and which would render it unnecessary for the Board of Police to make the levy.

It is admitted by the demurrer to the declaration, and the agreed facts, that the amount of the State tax of each tax payer, was stated in the assessment roll, and that the county taxes sued for, were duly levied by the Board of Police, but that neither the aggregate amount of the county tax, nor the amount thereof due by each tax payer, was stated on the assessor’s list.

The term levy, imports the ascertainment of the amount necessary to be raised for the county taxes, and the performance of such acts by the Board of Police, as would authorize the tax-collector to proceed to collect the taxes. Under the admission in the pleadings, that the Board legally made the levy, it must, therefore, be taken, that they fixed the amount to be raised, and took such other steps as were necessary to authorize the tax-collector to make collections — because otherwise, there could not have been a legal levy of the amount of taxes. The admission of the pleadings and agreement would go to the extent of admitting the authority of the tax-collector to collect, so far as his authority was dependent upon acts to be done by the Board of Police, only denying that the 'amount of the county taxes was specified in the assessment list. It is not material to conjecture how the amount required to be collected was communicated to the tax collector; but it may well be presumed, that it was by an order of the Board of Police, requiring him to collect a certain per centum upon the amount of State taxes.

"We think that if this course was adopted, it was sufficient to authorize the tax-collector to collect the county taxes. When the rate of county taxes is fixed at a certain per centum, upon the State taxes, which are specified in the assessment roll, it is a mere matter of computation what amount each tax payer shall pay, which he can readily make, haying the right to examine the assessment i-oll to ascertain the amount of the State tax, and the order of the Board of Police fixing the rate of county taxes, both of which must be in the possession of the tax collector. No injury, therefore, can arise to the tax payer by reason of the uncertainty in the amount of his taxes. All the means of rendering the amount certain, are subject to his examination, when he comes to pay his taxes, and the matter does not, therefore, appear to be different in principle from an execution in the sheriff’s hands, requiring him to levy a specified sum of money, with interest from a stated time, until paid, which could not be pretended to be void for uncertainty, as to the amount due for interest.

We are, therefore, of opinion, that the assessment and levy, as they must be regarded in this case, were legal, and that the tax-collector was liable, on his official bond, for moneys collected thereupon.

Another point remains to be considered. It is contended, that the action should not be maintained against the plaintiffs in error, who were sued alone, as sureties, because the liability of Bole, the principal, had not been fixed, as was required by the Act of 27th of February, 1836, § 1; Hutch. Code, 450.

Without further consideration of that statute, it is sufficient to remark, that it applies in terms only to sheriff’s bonds. This action was brought on a tax-collector’s bond; and although the statute subsequently' passed, provides that the duties required by law to be performed by the tax-collector, should be performed by the sheriff, yet the intention of the law is merely, that the same-individual shall perform the duties of both offices. They are, however, separate and distinct, and in' addition to the bond of the individual as sheriff, the statute requires him to execute a bond, and take an oath of office, as tax-collector. 1846, §§ 32, 48, 49; Hutch. Code, 191, 194. The duties and responsibility of the individual in the different capacities in which he acts, are as distinct as though each office was held by a different individual. A rule of proceeding, therefore, prescribed by statute, with express refer ence to sheriff’s bonds alone, cannot, with any reason, be extended to tax collector’s bonds, which, at the time the statute was passed, had no connection with the office of sheriff.'

We are of opinion, that the judgment is correct; and it is affirmed.

The plaintiffs in error applied for a re-argument, but it was refused.

Note. — This case was decided at the December Special Term, A. d. 1855, and omitted to be reported among the cases decided at that term.