SOMERYTLLE, J.
— -The chancellor erred, we think, in holding the judgment recovered in the Circuit Court of Mont[57]*57gomery county, against McBride and the sureties on his official bond as tax-collector, to be a void judicial proceeding. The case of Carmichael v. Hays, 66 Ala. 543, is authority, it is true, for the proposition, that sections 3059-3060 of the Revised Code of 1867, under which this summary judgment was recovered, are no longer a part of the general code of law's of the State; the omission .to incorporate them in the Code of 1876, at the time of its adoption, operating to repeal them. The case of Ulmer v. The State, 61 Ala. 208, cited by appellees’ counsel, goes no further.
The cpiestion now before us was not considered or decided in either of those cases, because it was not involved. The rights of the State in this cause accrued prior to the adoption of the Code of 1876, and, therefore, prior to the repeal of these sections of the Code of 1867. The inquiry now is, whether the remedy afforded the State by these sections is not preserved by section 10 of the present Code, which reads as follows: “ This Code shall not affect any existing right, remedy, or defense; nor shall it affect any prosecution now' commenced, or which shall be hereafter commenced, for any offense already committed. As to such eases, the laws in force at the adoption of this Code shall continue in force. Local, private, or special, statutes, and those public laws not of a general and permanent nature, and those relating to the militia, are not repealed by this Code. But, subject to the foregoing provisions, all statutes of a public, general and permanent nature, not included in this Code, are repealed.”
This section is so plain in meaning, as scarcely to admit of any room for construction. It means, most obviously, that past transactions, both civil and criminal, must be governed by past laws, or such laws as were in force at the adoption of the present Code; that, as to existing cases, whether in suit or not, existing lav's should be continued in force, as if they had never been repealed. Not only is the legislative intention thus clearly expressed, but it is emphasized, as if from abundant caution, by the declaration, that the new order of things should “ not affect any existing right, remedy or defense.” The effect of this section wTas to preserve to the State the benefit of the remedy resorted to in this case, as conferred by sections 3059 and 3060 of the Revised Code of 1867; the rights against the defendants having accrued prior to the repeal of these sections as a part of our general code of laws adopted in the year 1877.— Hart v. Ross & Garner, 64 Ala. 96.
It was not permissible for the register to go behind this judgment, in order to allow to this collector any payments, or deductions, not allowed him by the Auditor in his statement of the account for taxes collected for the year 1876. The judg[58]*58ment was conclusive as to all these matters of defense, involving credits of every description. The collector was required by statute to make a final settlement with the Auditor, on or before the first day of May, of all his tax transactions of the year preceding. — Code, 1876, §414. In this final accounting, the collector is prima facie chargeable with all the taxes shown by the assessment-book to be due the State ; and whatever credits he may be entitled to under the statute — whether for payments already made, for fees and commissions, for errors and insolvencies, for lands bought in for the State, or for any authorized expenses incurred for advertisements or otherwise — he is required to present and claim as credits at this time, and to pay over to the Treasurer the balance of the State taxes which he may have collected, after the allowance of such credits as he may be entitled to by law. The settlement would be partial, not final, if this were not so. — Code, 1876, §§ 414, 421; State v. Lott, 69 Ala. 147; Timberlake v. Brewer, 59 Ala. 108.
The evidence shows that the defendant McBride failed to make the settlement with the Auditor on or before the first day of May, which he was thus required to do by law. Hence, a suit was commenced against him and his sureties, by summary motion, in which the judgment in controversy was recovered in June, of the year 1878. The purpose of this legal proceeding was to coerce by law the making of the final settlement which McBride had neglected to make voluntarily, and thus to bring him and his bondsmen to an accounting with the State. If he or they had appeared, they might, by making proper defense, have secured the benefit of all credits, perhaps, to which they would have been entitled had the accounting have been with the Auditor in the manner required by law. No appearance was made, however, and a judgment of default was suffered by all of the defendants. This precludes the defendants from all credits, not allowed by the Auditor, which it would have been the duty of the collector to have claimed in the voluntary settlement. The judgment is res adjudicata as to all these, because they would have been necessarily involved, if the case had been litigated, and a failure to present them is an estoppel against now asserting any right to them in this proceeding. Bobe v. Stickney, 36 Ala. 482; Freeman on Judg. §§ 286, 272; 2 Brick. Dig. 145, § 205. The determination of these credits being required by law to be involved in the settlement, or accounting, which was necessary in order to ascertain the balance due by the collector, and upon which the judgment was based, it was immaterial whether they were actually claimed, or were litigated or not. — Baker v. Cleveland, 19 Mich. 230.
What we have said above disposes of the consideration of all the tax transactions involved between the State'and the defond[59]*59ant McBride, for and during the year 1876. We proceed further to consider the principles which seem to govern the account for the ensuing year, 1877.
The tax-collector and the sureties on his official bond-would be liable to the State for lawful interest on the balance due by him on the first day of May, 1878, which was the last day allowed by law for his final settlement of the taxes of the preceding year; the collector being chargeable, prima, facie, as we have before said, with all taxes shown by the assessment-book to be due to (he State. The burden is thus east on the collector to prove all credits which the Auditor may have failed to allow him, and to which he is lawfully entitled. This was settled in the case of The State v. Lott, 69 Ala. 147 ; and in Timberlake v. Brewer, 59 Ala. 108 ; Code, 1876, § 414.
No credit, in our opinion, should have been allowed the collector, as was done by the chancellor, for the amount due for uncollected taxes turned over by him to his successor in office. This sum is shown to be two thousand nine hundred and fifty 50-100 dollars. The statute prescribes the only authorized mode, in which the collector can relieve himself from his liability to collect such taxes, whether occasioned by the insolvency of the persons assessed, or errors in assessment. Section 421 of the Code requires, that the collector should report a list of insolvents, and of errors in assessment, to the court of County Commissioners, at the April term of each year, which must be uncter oath.
Free access — add to your briefcase to read the full text and ask questions with AI
SOMERYTLLE, J.
— -The chancellor erred, we think, in holding the judgment recovered in the Circuit Court of Mont[57]*57gomery county, against McBride and the sureties on his official bond as tax-collector, to be a void judicial proceeding. The case of Carmichael v. Hays, 66 Ala. 543, is authority, it is true, for the proposition, that sections 3059-3060 of the Revised Code of 1867, under which this summary judgment was recovered, are no longer a part of the general code of law's of the State; the omission .to incorporate them in the Code of 1876, at the time of its adoption, operating to repeal them. The case of Ulmer v. The State, 61 Ala. 208, cited by appellees’ counsel, goes no further.
The cpiestion now before us was not considered or decided in either of those cases, because it was not involved. The rights of the State in this cause accrued prior to the adoption of the Code of 1876, and, therefore, prior to the repeal of these sections of the Code of 1867. The inquiry now is, whether the remedy afforded the State by these sections is not preserved by section 10 of the present Code, which reads as follows: “ This Code shall not affect any existing right, remedy, or defense; nor shall it affect any prosecution now' commenced, or which shall be hereafter commenced, for any offense already committed. As to such eases, the laws in force at the adoption of this Code shall continue in force. Local, private, or special, statutes, and those public laws not of a general and permanent nature, and those relating to the militia, are not repealed by this Code. But, subject to the foregoing provisions, all statutes of a public, general and permanent nature, not included in this Code, are repealed.”
This section is so plain in meaning, as scarcely to admit of any room for construction. It means, most obviously, that past transactions, both civil and criminal, must be governed by past laws, or such laws as were in force at the adoption of the present Code; that, as to existing cases, whether in suit or not, existing lav's should be continued in force, as if they had never been repealed. Not only is the legislative intention thus clearly expressed, but it is emphasized, as if from abundant caution, by the declaration, that the new order of things should “ not affect any existing right, remedy or defense.” The effect of this section wTas to preserve to the State the benefit of the remedy resorted to in this case, as conferred by sections 3059 and 3060 of the Revised Code of 1867; the rights against the defendants having accrued prior to the repeal of these sections as a part of our general code of laws adopted in the year 1877.— Hart v. Ross & Garner, 64 Ala. 96.
It was not permissible for the register to go behind this judgment, in order to allow to this collector any payments, or deductions, not allowed him by the Auditor in his statement of the account for taxes collected for the year 1876. The judg[58]*58ment was conclusive as to all these matters of defense, involving credits of every description. The collector was required by statute to make a final settlement with the Auditor, on or before the first day of May, of all his tax transactions of the year preceding. — Code, 1876, §414. In this final accounting, the collector is prima facie chargeable with all the taxes shown by the assessment-book to be due the State ; and whatever credits he may be entitled to under the statute — whether for payments already made, for fees and commissions, for errors and insolvencies, for lands bought in for the State, or for any authorized expenses incurred for advertisements or otherwise — he is required to present and claim as credits at this time, and to pay over to the Treasurer the balance of the State taxes which he may have collected, after the allowance of such credits as he may be entitled to by law. The settlement would be partial, not final, if this were not so. — Code, 1876, §§ 414, 421; State v. Lott, 69 Ala. 147; Timberlake v. Brewer, 59 Ala. 108.
The evidence shows that the defendant McBride failed to make the settlement with the Auditor on or before the first day of May, which he was thus required to do by law. Hence, a suit was commenced against him and his sureties, by summary motion, in which the judgment in controversy was recovered in June, of the year 1878. The purpose of this legal proceeding was to coerce by law the making of the final settlement which McBride had neglected to make voluntarily, and thus to bring him and his bondsmen to an accounting with the State. If he or they had appeared, they might, by making proper defense, have secured the benefit of all credits, perhaps, to which they would have been entitled had the accounting have been with the Auditor in the manner required by law. No appearance was made, however, and a judgment of default was suffered by all of the defendants. This precludes the defendants from all credits, not allowed by the Auditor, which it would have been the duty of the collector to have claimed in the voluntary settlement. The judgment is res adjudicata as to all these, because they would have been necessarily involved, if the case had been litigated, and a failure to present them is an estoppel against now asserting any right to them in this proceeding. Bobe v. Stickney, 36 Ala. 482; Freeman on Judg. §§ 286, 272; 2 Brick. Dig. 145, § 205. The determination of these credits being required by law to be involved in the settlement, or accounting, which was necessary in order to ascertain the balance due by the collector, and upon which the judgment was based, it was immaterial whether they were actually claimed, or were litigated or not. — Baker v. Cleveland, 19 Mich. 230.
What we have said above disposes of the consideration of all the tax transactions involved between the State'and the defond[59]*59ant McBride, for and during the year 1876. We proceed further to consider the principles which seem to govern the account for the ensuing year, 1877.
The tax-collector and the sureties on his official bond-would be liable to the State for lawful interest on the balance due by him on the first day of May, 1878, which was the last day allowed by law for his final settlement of the taxes of the preceding year; the collector being chargeable, prima, facie, as we have before said, with all taxes shown by the assessment-book to be due to (he State. The burden is thus east on the collector to prove all credits which the Auditor may have failed to allow him, and to which he is lawfully entitled. This was settled in the case of The State v. Lott, 69 Ala. 147 ; and in Timberlake v. Brewer, 59 Ala. 108 ; Code, 1876, § 414.
No credit, in our opinion, should have been allowed the collector, as was done by the chancellor, for the amount due for uncollected taxes turned over by him to his successor in office. This sum is shown to be two thousand nine hundred and fifty 50-100 dollars. The statute prescribes the only authorized mode, in which the collector can relieve himself from his liability to collect such taxes, whether occasioned by the insolvency of the persons assessed, or errors in assessment. Section 421 of the Code requires, that the collector should report a list of insolvents, and of errors in assessment, to the court of County Commissioners, at the April term of each year, which must be uncter oath. This report is required to be subjected to “ a rigid and searching examination ” by this tribunal, which, after making proper corrections, is authorized to credit the collector with the taxes due the county, as they appear on such corrected lists ; and the probate judge is then required to certify such lists to the Auditor, “ who shall allow the collector credit therefor on his final settlement for the State taxes due thereon.”' — Code, 1876, § 421. After these proceedings, the authority of the collector to collect the taxes due upon such lists is abrogated, and the probate judge is required to place them in the hands of notaries public and justices of the peace in the various beats of the county, who are thus constituted as to such lists, pro hac vice, tax-collectors, and clothed with all necessary powers for this purpose. — Code, § 421.
It is not insisted that the tax-collector has conformed to the requirements of this statute. The contrary is shown by the evidence, and is candidly admitted. The argument made, however, is, that the tax-assessor of Lawrence county failed to turn over the assessment-books in sufficient time for the collector to discharge the duties required of him by lfiw, so that he could not make a report of such list of insolvencies, or errors of assessment, under oath, to the April term of the Commisioners [60]*60Court. This affords no ground upon which a court of chancery-can grant the desired relief to the party in default. The penalty complained of is visited by the statute ; and the rule is well settled, that “ a court of equity has no power to disregard, or set aside, the express terms of statutory legislation, however much it may interfere with the operation of common-law rules.” 1 Pomeroy’s Eq. Jur. §458. Such courts, in other words, have no power to grant relief which is repugnant to both the policy and terms of an express statute. The exercise of such a jurisdiction might lead to the abrogation of any statute, by excepting supposed “ hard cases ” from the operation of conditions or penalties imposed by its provisions, and would thus be, to use the language of Mr. Story, “ in contravention of the direct expression of the legislative will.” — 2 Story’s Eq. Jur. (12th Ed.) § 1326.
We do not consider the other exceptions to the register’s report, which were overruled by the chancellor. They were properly overruled, if for no other reason, on the ground that the appellant failed to note the evidence, or parts of evidence, relied on in support of these exceptions, “ with such designation, and marks of reference, as to direct the attention of the court to the same,” as required by the 93d Rule of Chancery Practice.- — Code, 1876, p. 174; Mooney v. Walter, 69 Ala. 75 ; Mahone v. Williams, 39 Ala. 202; Crump v. Crump, 69 Ala. 156.
The decree of the chancellor, being erroneous in> the particulars above pointed out, must be reversed, and the cause remanded.