Scofield v. Perkerson

46 Ga. 325

Opinion

Montgomery, Judge.

1. On December 14th, 1871, the Legislature abolished the offices of the Western and Atlantic Railroad. Before their abolition, as soon as an agent or any other person having funds of the road unaccounted for was in default, and failed to pay over said funds on demand, made by the superintendent or by his authority, or absconded, or concealed himself, or in any other way evaded or prevented a settlement, it became the duty of the superintendent promptly to cause the true amount due by such person to be ascertained, and transmit the same to the Comptroller General as earnings of the road, stating also the date of the default: Code, sec. 996. The duty of the Comptroller General is then pointed out by section 991. He is to issue execution against the defaulter and his sureties, as in case of a defaulting tax collector, etc. It will be perceived by an examination of the sections referred to, and others upon the same subject-matter, that there is no provision made for a report to the Comptroller General of any default by the superintendent himself, and yet section 991 makes it the duty of the Comptroller General to issue execution against the superintendent and his sureties in case of his default, as be must do against any inferior defaulting officer upon report made by the superintendent. Where a duty is imposed upon an officer to be performed upon the happening of a contingency, and no mode is pointed out whereby he is to be officially informed that the contingency has happened, it necessarily is a part of the duty required of him to ascertain the happening of the contingency for himself. Hence, before the Act abolishing the offices of the Western and Atlantic Railroad, upon default made by the superintendent, it became the duty of the Comptroller General to ascertain the amount for which he was a defaulter and issue execution therefor. The abolition of the office of superintendent extended this duty of the Comptroller to all defaulting officers of the road. This being his duty, and no custodian of the books of the road being specially provided by law, they naturally fell into his hands, where all other revenue accounts due to the State are kept: Code sec. 94, p. 9, see. 95, p. 6.

2. It is insisted that the Legislature had no authority to constitute a committee of their own body a Court to try and determine ex parte the liability of the principal of the complainants, and to cause execution to issue against said principal and his sureties. Conceding this to be true, it is clearly competent for the Legislature to appoint a committee of their body as ministerial agents to audit and state the accounts of the officers of the Western and Atlantic Railroad, and to report the result of their investigations to the Legislature.

When they do this, and the committee proceed with the investigation and ascertain to their own satisfaction that there has been default, while it may be true that they have no power to compel the Comptroller General to issue execution for the amount found to be due by the defaulting officer, yet if they transmit the result of their investigations to the Comptroller General, and he chooses to adopt it as his own after verifying it by the books of the Western and Atlantic Railroad, he does exactly what he is by law required to do, in issuing the execution against the officers found in default and his sureties. For aught that appears, that is what has been done in this case, and the Courts will not presume any irregularity where the case made does hot show any to exist. The jurisdiction of person and subject matter by the Comptroller General cannot be seriously questioned: Acts of 1858; Code 991, 911, 907, 943.

If then the Comptroller acted within his jurisdiction, as set forth in the legislative Acts referred to, there can be no judicial interference : Code, 3618, 914. The appeal is to the Governor: Ibid., 914. But it is said the surety is deprived of his constitutional right to trial by jury. The Constitution only provides that the trial by jury shall “ remain inviolate;” i. e., remain as it existed before the adoption of the Constitution. As early as December 22d, 1791, it was enacted that “no replevin shall lie, or other judicial interference be had in any levy or distrain for taxes under this law, but that the party injured be left to his proper remedy in a Court of law:” Mar. and Crawford’s Dig. 497. And the same Act for the first time provides for the issuing of execution by the Treasurer (now Comptroller General) against defaulting tax collectors and their sureties. These provisions have been retained upon the statute book from that day to this. What was the proximate cause of a denial of judicial interference has been lost by the lapse of time. The sureties of officers against whom these summary remedies are provided must be held to have contracted in reference to the law. Hence, this claim to a right to trial by jury cannot avail them.

Thus far I have considered the case made by the record. The case made in the argument was a very different one. It is said that the books of the Western and Atlantic Railroad, do not show the balances against the superintendent and treasurer for which the executions are issued by the Comptroller General; that the amounts were arrived at by an ex parte examination of witnesses, without any opportunity to the parties whose interests are affected to cross-examine or to offer counter-evidence. If the record made this case, I (speaking for myself) should have serious difficulty in assenting to an affirmance of the judgment. This Court has decided that the Comptroller General in issuing executions of the character of those under consideration acts ministerially only: Tift et al., vs. Griffin, 5 Ga., 185. The Court say he “has no judicial functions in this regard. There is no issue to try, there is no judgment to be pronounced. As auditors— and the Court underscore the word — it is their business to ascertain the amount due, and then to issue execution.”

If the statement in the argument of the case at bar be true, the action of the committee, or the Comptroller, has been very like a judicial act. To permit these summary proceedings in contested cases would be to place in the hands of the Comptroller General a very oppressive engine. It at once transforms him into a judicial officer, with power to hear ex parte accusations against any financial agent of the State and his sureties, and to pronounce a judgment from which there is no relief except in the clemency of the Governor and an Act of the Legislature. Chief Justice Marshall has well said, in discussing a similar revenue law of the United States, “I will not attempt to detail the severities and the oppression which may follow in the train of this law, if executed in contested cases. They have been brought into full view by counsel in their arguments, and I will not again present them. It may be said with confidence that the Legislature has not passed any Act which ought, in its construction, to be more strictly confined to its letter:” ex parte Randolph, 2 Brock., 480. Again, he says in the same case, “If we take into consideration the character and operation of the Act, the extreme severity of its provisions, that it departs entirely from the ordinary course of judicial proceeding and prescibes an extreme remedy, which is placed under the absolute control of a mere ministerial officer, that in such a case the ancient established rule is in favor of a strict construction ; my own judgment is satisfied that this is the true construction.”

Let it be borne in mind, that — again to paraphrase Judge Marshall — it is not the responsibility of these complainants to the State, but their liability to this particular process, which is the subject of inquiry. The Legislature might very reasonably make a distinction, when giving this summary process, between an officer, whose whole liability ought to appear on the books of the Western and Atlantic Railroad, and an agent, whose liability is to be ascertained by extrinsic evidence. “But it is enough for me,” adds Judge Marshall, “ that the law, in my judgment, makes the distinction:” Ibid., 484. In interpreting the language of the Act, Judge Marshall says: “ The second section of the Act requires that the account stated by order of the first Comptroller of the treasury ‘shall exhibit truly the amount due to the United States.’ For what purpose was the word truly introduced? Surely not to prohibit the officers of the government from exhibiting an account known to be erroneous. Congress could not suspect such an atrocity. Its introduction, then, indicates the idea that this summary process was to be used only when the true amount "was certainly known to the department; when the sum of money debited to the officer appeared certain, and either no credits were claimed, or none about -which a controversy existed,” — note the similarity of our Code — “said officer (superintendent) shall promptly cause the true amount due by such person to be ascertained, and transmit the same to the Comptroller General,” etc. How ascertained? By the examination of witnesses ex parte? I think not. An examination of the duties of the Comptroller General, as set forth in the Code, will, I think, sustain this position. See the’Code, from section 92 to 105, both inclusive. Among other things, he is to report, annually, to the Governor, “a statement of the accounts of all officers and agents disbursing public money * * * and the several sums for which they are in default.” How is he to ascertain how much they are in default? By summoning witnesses and subjecting them to an ex parte examination ? What form of subpoena would he issue to compel their appearance, and what punishment inflict for disobedience to the writ? What officer would serve Ins processes, and execute his orders of punishment for contempt? What oath would he administer to the witnesses, and how could they be found guilty of perjury if they swore falsely ? At best, they could only be convicted of false swearing, and if so convicted, what redress has the victim. Section 4400 of the Code applies only to perjury. Surely the Comptroller General cannot go beyond the proper books of account to ascertain how much is due by a defaulting officer, in order to issue his summary process against him to collect the amount.

I am more inclined to think this is a correct interpretation of the law, from the fact that the denial of judicial interference is an anomaly known only, so far as I have been able to ascertain, to the law of our own State. Certainly it has no warrant in the common law. By the law of England, an extent (or execution) issued in a summary manner against a defaulting fiscal agent of the crown, but he could always invoke the protection of the Court of Exchequer to try before a jury the truth of his alleged indebtment, if he denied it. Mr. Tidd, in his work on practice, (2d volume, 1072-3,) says: “Having shown the different modes of proceeding for the recovery of debts at the instance or for the benefit of the crown or its debtor, it will next be proper to state the means of resisting such proceedings, either by the defendant or a third person. These means are first by motion or application to the Court to set aside the extent and proceedings under it, or for other purposes; secondly, by petition of right; thirdly, by monstrans de droit; fourthly, by traverse of office; and fifthly, by demurrer. Motions to set aside extents are of two kinds: first, on account of some defect apparent on the face of the proceedings; and secondly, on the ground of some objection which does not appear thereon, but must be verified by affidavit. * * * If the motion be decided against the claimant, he may still plead. * * * Pleas to extents are either by the defendant, or party against whom the extents issued, or by third persons; and they are of two kinds : first, pleas which go in denial or discharge of the debt, and which can be pleaded only by the defendant, or those claiming under him; and secondly, pleas which do not go to the denial or discharge of the debt, but are pleaded to the extent by third persons, who claim the goods, etc., which have been seized as the defendant’s, and which pleas go to the property of the goods, etc., seized under the extent2 Tidd’s Pr., 1077. In other words, to use our own legal parlance, the defendant may file an affidavit of illegality, or a third person may put in a claim. If the defendant pleads he is not indebted, “he may give in evidence any matter in denial or discharge of the debtIbid.

It is true there could be no replevin of the property seized by the levying officer, but that is a very different matter from allowing the party to come in and put in a defense if he had any; in a word, to invoice judicial interference. This was always allowed, and in cases where it was sought to charge the sureties upon the bond of a fiscal agent the practice was to issue a scire facias, calling upon them to show cause why an extent should not issue: Foster’s Writ of Scire Facias, 330, (73 vol. Law Lib.) And even as against the principal a scire facias issued unless an affidavit of danger of loss of the debt was made on behalf of the crown : Ibid., 335; see Bingham on Executions, 228 (13 L. L.) Notwithstanding all these delays in the collection of the British revenue, and which have existed time out of mind, we hear of no serious detriment to the English government arising therefrom. Is not this the reason usually given for our statutory prohibition of judicial interference, that the State cannot afford to be delayed in the collection of her revenue more fanciful than real? No great number of her fiscal against will be likely to become defaulters at once.

Inasmuch, then, as the prohibition of judicial interference seems to be peculiar to our own. State, having no foundation in the common law and resting upon no reason satisfactory to my mind in the extended application which is asked for it, I am not disposed to go beyond what seems to me to be the intent of the Legislature, to-wit: that it should be confined to executions issued for the debts of fiscal officers as they appear from the books in which their accounts are kept.

It is true, that since the decision in this case was rendered in accordance with the views here thrown out, and then orally pronounced from the bench, the bills in these eases were amended and the allegation made that the executions issued were not founded on the book accounts of the Western and Atlantic Railroad, but on the ex parte testimony of witnesses and the eases again brought before this Court, at the present term, on demurrer to the bills — at which time I did not preside — and the Court held the executions properly issued. With due deference to the able Judges, who presided on that latter occasion, I cannot yield my convictions.

3. It only remains to add that if these executions were issued by the Comptroller General upon examination of the accounts of the principal of the complainants, as we must assume in the aspect in which the case presents itself before us, there can be no judicial interference for any reason, and therefore the reasons alleged for the interference are insufficient.

Judgment affirmed.