Green,' President,
delivered the opinion of the Court;
The record in this case shows, that a number of questions were raised in the court below on the - pleadings' and proceedings which occurred prior to-the trial of the issues by the' jury ; but neither party, by their counsel, presents any of these questions to this Court. -The counsel on' both sides have argued this case on its merits only; ' We shall therefore confine our consideration-'to the action of- the court during-the trial of the-case -and-its:refusal' to set aside the verdict of the jury.-- To reach-a-conclusioii whether the circuit court- erred- in these matters1 we must first'determine the extent of the legal liability of the sureties of the sheriff in his official bond,: July 24, 1869, and the -extent of the legal liability of the-sureties in his official-bond of March 18, 1870.
The 23d section of ch.10 of Code of W. Va., p. 82 provides, that when such new bond is given, “the’Siire-: ties in the former bond and their estates shall be discharged Syllabus 1. from--all liability for any breach of duty by such' officer after that -time.” The sureties therefore in' the bond dated July 24, 1869,' -were -by the execution of this new bond expressly discharged from all liability by -any breach of duty committed by the'sheriff after the execution of this new bond, that is, after March 18, 1870..
By the Code of W. Va. ch. 30, §25, three-fourths-of the assessment-of taxes- for 1869, which came into-the hands bf the sheriff, was required to be paid on or before January 20; lSTOpand 'the- remainder.on - or before-the-[532]*5321st day of May, 1870. It is therefore, it seems to ine, obvious there can be no breach of his official duty., if the sheriff failed to pay into the treasury before May 1,1870, the one-fourth part of the taxes which he is not required to pay before that time. If he complied with the law, and' paid into the treasury three-fourths of the taxes due from him on or before January 20, 1870, there could be no breach of his official duty with reference to the collection and payment of taxes on March 18, 1870. Even if it were proven that all taxes of 1869 had been collected before January 20, 1870, and that only three-fourths of them were then paid into the treasury, it seems clear there would be no breach of his official duty; for it is.clear that no suit could be brought against him ' for failing to pay the remaining fourth till after it was payable on May 1, 1870. The failure to pay into the treasury at the time the law requires payment is the breach of duty; and not the failure to pay over the taxes as fast as collected. It seems to me so clear that a breach of duty by a sheriff can not take place till the time the law requires him to pay over the money he has collected has arrived, and that if, after the collection and before the tibe he is required to'pay over the money, he executes a .new bond, that the.. sureties in- the new bond, and.not those in the, old bond, are responsible if he fails to pay over the money so collected, that it is hardly necessary to sustain this position by the citation of authorities. But this proposition is abundantly sustained by the authorities. See Warren et al. v. The State, 11 Mo. 583; Miller v. Moore, 3 Humph. 189; Dumas & Co. v. Patterson et al. 9 Ala. (new series) p. 484.
The extent of the liability of the sureties of the sheriff therefore in this case is three-fourths of the taxes for 1869, which had come into his hands and which he had failed to pay over. He could not be held responsible for the remainder of these taxes, because he was not required to pay them into the treasury till May 1, 1870, and before that time, on March 18, 1870, he had given [533]*533a new bond ; and the sureties on this bond are the parties who must be held responsible for a failure to pa.y' over this one-fourth after the deduction of the delinquent list. Such is the extent of the liability of the sureties on the old bond. They are of course entitled to a credit for any moneys paid into the treasury on the taxes of 1869, sued upon, which was paid prior to the execution of the new bond March 18, 1870, and also- to the sheriff’s commission on the said sum. If the money was so paid prior to January 25, 1870, the proper commission would be seven and one-half per cent, otherwise two and one-half per cent. See Code of W. Va., ch. 31, §28, p. 185. In this case no money was paid till January 26, 1870, six days after the time fixed by law. The sheriff was therefore entitled to but two and one-half per cent. The auditor nevertheless gave him credit by seven and one-half per cent; and the account allowing this credit was proved by the plaintiff in this case to the jury. If the jury allowed this credit in forming their verdict, the plaintiff cannot have it set aside on that account, as there is nothing in the record to show that the plaintiff in the trial of this case asked the jury to reduce the amount of this credit which he had given in the account on the books of the auditor.
The sureties in the official bond of July 24, 1869, were also entitled to a credit of $315.12 paid on the school taxes of 1869, about April 1, 1870, and to the sheriff’s commission on the same. This sum, it is true, was paid after the giving of the new bond on March 18, 1870; but when it was paid none of the taxes of 1869 were due from the sheriff to the State, except those due January 20, 1870, the balance of these taxes not being due till May 1, 1870. The receipt of the treasurer shows that this sum was paid on the school taxes of 1869; and it must therefore, in the absence of any evidence to the contrary, be regarded as a payment on the taxes due January 20, 1870, rather than on taxes not then due, and which did not fall due till the 1st of May following. [534]*534The receipt for this-money was not given till February 21, 1871; but it was distinctly proven it was paid about April 1, 1870,' and no receipt then given, because of the confusion in the auditor’s office, as the capital was then being moved from Wheeling to Charleston. The defendants in this suit have no claim to any credit for the $812.00 paid at the same time, as it is proven that it was applied to the payment of other taxes of -1869, for which the defendants in this suit were bound, and which were not in suit in .this case. The charges then against the defendants in the issues tried by the jury amounted to $4,805.58; and the credits, which the jury, so far as this record shows, could have allowed without just complaint by the plaintiff, were: Money paid January 20, 1870, $4,363.58, commissions on the same at seven and one-half per cent., $327.12, and $315.28 paid about April 1, 1870, and the commission on the same; and as the credits exceeded the plaintiff’s just demand, the jury might properly find a verdict for the defendants. Or if at the trial the defendants objected to the allowance of more than two and a half per cent commission, which the record does not show, the jury may then have only allowed a commission of two and a half per cent, or $109.04. The credits then would still reduce the plaintiff’s demand to $18.22, which would have been nearly extinguished by the sheriff’s commission on this $315.28. I think, therefore, the court did not err in refusing to set aside this verdict.
The counsel for plaintiff in error however insists, that the auditor had a right to do as he did and apply the whole Syllabus 2.
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Green,' President,
delivered the opinion of the Court;
The record in this case shows, that a number of questions were raised in the court below on the - pleadings' and proceedings which occurred prior to-the trial of the issues by the' jury ; but neither party, by their counsel, presents any of these questions to this Court. -The counsel on' both sides have argued this case on its merits only; ' We shall therefore confine our consideration-'to the action of- the court during-the trial of the-case -and-its:refusal' to set aside the verdict of the jury.-- To reach-a-conclusioii whether the circuit court- erred- in these matters1 we must first'determine the extent of the legal liability of the sureties of the sheriff in his official bond,: July 24, 1869, and the -extent of the legal liability of the-sureties in his official-bond of March 18, 1870.
The 23d section of ch.10 of Code of W. Va., p. 82 provides, that when such new bond is given, “the’Siire-: ties in the former bond and their estates shall be discharged Syllabus 1. from--all liability for any breach of duty by such' officer after that -time.” The sureties therefore in' the bond dated July 24, 1869,' -were -by the execution of this new bond expressly discharged from all liability by -any breach of duty committed by the'sheriff after the execution of this new bond, that is, after March 18, 1870..
By the Code of W. Va. ch. 30, §25, three-fourths-of the assessment-of taxes- for 1869, which came into-the hands bf the sheriff, was required to be paid on or before January 20; lSTOpand 'the- remainder.on - or before-the-[532]*5321st day of May, 1870. It is therefore, it seems to ine, obvious there can be no breach of his official duty., if the sheriff failed to pay into the treasury before May 1,1870, the one-fourth part of the taxes which he is not required to pay before that time. If he complied with the law, and' paid into the treasury three-fourths of the taxes due from him on or before January 20, 1870, there could be no breach of his official duty with reference to the collection and payment of taxes on March 18, 1870. Even if it were proven that all taxes of 1869 had been collected before January 20, 1870, and that only three-fourths of them were then paid into the treasury, it seems clear there would be no breach of his official duty; for it is.clear that no suit could be brought against him ' for failing to pay the remaining fourth till after it was payable on May 1, 1870. The failure to pay into the treasury at the time the law requires payment is the breach of duty; and not the failure to pay over the taxes as fast as collected. It seems to me so clear that a breach of duty by a sheriff can not take place till the time the law requires him to pay over the money he has collected has arrived, and that if, after the collection and before the tibe he is required to'pay over the money, he executes a .new bond, that the.. sureties in- the new bond, and.not those in the, old bond, are responsible if he fails to pay over the money so collected, that it is hardly necessary to sustain this position by the citation of authorities. But this proposition is abundantly sustained by the authorities. See Warren et al. v. The State, 11 Mo. 583; Miller v. Moore, 3 Humph. 189; Dumas & Co. v. Patterson et al. 9 Ala. (new series) p. 484.
The extent of the liability of the sureties of the sheriff therefore in this case is three-fourths of the taxes for 1869, which had come into his hands and which he had failed to pay over. He could not be held responsible for the remainder of these taxes, because he was not required to pay them into the treasury till May 1, 1870, and before that time, on March 18, 1870, he had given [533]*533a new bond ; and the sureties on this bond are the parties who must be held responsible for a failure to pa.y' over this one-fourth after the deduction of the delinquent list. Such is the extent of the liability of the sureties on the old bond. They are of course entitled to a credit for any moneys paid into the treasury on the taxes of 1869, sued upon, which was paid prior to the execution of the new bond March 18, 1870, and also- to the sheriff’s commission on the said sum. If the money was so paid prior to January 25, 1870, the proper commission would be seven and one-half per cent, otherwise two and one-half per cent. See Code of W. Va., ch. 31, §28, p. 185. In this case no money was paid till January 26, 1870, six days after the time fixed by law. The sheriff was therefore entitled to but two and one-half per cent. The auditor nevertheless gave him credit by seven and one-half per cent; and the account allowing this credit was proved by the plaintiff in this case to the jury. If the jury allowed this credit in forming their verdict, the plaintiff cannot have it set aside on that account, as there is nothing in the record to show that the plaintiff in the trial of this case asked the jury to reduce the amount of this credit which he had given in the account on the books of the auditor.
The sureties in the official bond of July 24, 1869, were also entitled to a credit of $315.12 paid on the school taxes of 1869, about April 1, 1870, and to the sheriff’s commission on the same. This sum, it is true, was paid after the giving of the new bond on March 18, 1870; but when it was paid none of the taxes of 1869 were due from the sheriff to the State, except those due January 20, 1870, the balance of these taxes not being due till May 1, 1870. The receipt of the treasurer shows that this sum was paid on the school taxes of 1869; and it must therefore, in the absence of any evidence to the contrary, be regarded as a payment on the taxes due January 20, 1870, rather than on taxes not then due, and which did not fall due till the 1st of May following. [534]*534The receipt for this-money was not given till February 21, 1871; but it was distinctly proven it was paid about April 1, 1870,' and no receipt then given, because of the confusion in the auditor’s office, as the capital was then being moved from Wheeling to Charleston. The defendants in this suit have no claim to any credit for the $812.00 paid at the same time, as it is proven that it was applied to the payment of other taxes of -1869, for which the defendants in this suit were bound, and which were not in suit in .this case. The charges then against the defendants in the issues tried by the jury amounted to $4,805.58; and the credits, which the jury, so far as this record shows, could have allowed without just complaint by the plaintiff, were: Money paid January 20, 1870, $4,363.58, commissions on the same at seven and one-half per cent., $327.12, and $315.28 paid about April 1, 1870, and the commission on the same; and as the credits exceeded the plaintiff’s just demand, the jury might properly find a verdict for the defendants. Or if at the trial the defendants objected to the allowance of more than two and a half per cent commission, which the record does not show, the jury may then have only allowed a commission of two and a half per cent, or $109.04. The credits then would still reduce the plaintiff’s demand to $18.22, which would have been nearly extinguished by the sheriff’s commission on this $315.28. I think, therefore, the court did not err in refusing to set aside this verdict.
The counsel for plaintiff in error however insists, that the auditor had a right to do as he did and apply the whole Syllabus 2. 0f the $4,363.58 to the taxes due from the sheriff for the years 1867 and 1868, and for which a different set of sureties were bound, though he was expressly directed, when this payment was made, to apply it to the payment of the taxes of 1869. This right of the auditor to apply this payment to the taxes of former years against the direction and protest ot the sheriff is based on section 2-, chapter 17 of Code of. West Virginia [535]*535p. 104, which says that the auditor shall “direct upon what account or accounts the treasurer shall receipt for a payment” into the treasury. This, it is claimed, justified the auditor in directing this amount to be applied as a credit on former years on taxes still unpaid, and for which other sureties were bound.
I do not so understand this statute. By section 4 of same'chapter, page 105, the auditor is directed “to keep in his office separate accounts of the particular heads or sources of revenue,” that is, “an account of the taxes for general school purposes,” “for the support of free schools” —“for the further construction of the hospital for the insane at Weston,” &c. — there being a particular part of the tax assessed for each of these purposes. Of course the sheriff and his sureties have no sort of interest to which of these several accounts a payment is allowed as a credit, as the sheriff and the same set of sureties would be bound for the taxes of a particular year., whether appropriated for one or the other of these purposes. The law therefore very properly left it to the auditor to direct to which of these accounts a particular payment should be credited, so that it should go to the account, to which the convenience of the State at the time required it to go, and of which the auditor is always in a condition to judge. This I understand was the discretion intended to be conferred on the auditor; a discretion, the exercise of which could not possibly injure any set of sureties. But to construe this statute to authorize the auditor at his mere will and pleasure to apply a sum of money, paid on the taxes of one year, to the taxes ofother years, so as to relieve, one set of sureties from responsibility and attach responsibility to another set, would be to convert a statute, intended merely for the convenience of the State, into a statute which would enable the auditor to do gross injustice to some sureties, and to confer great pecuniary favors on others according to his pleasure. The law can not be so interpreted. If this were its meaning, its constitutionality would be to say theleasf doubtful. But it can not be so interpreted
[536]*536In the case of Porter v. Stanley, 47 Me. 515, the coux-t refused to pei-mit a settlement made by selectmen with a tax collector in this manner to stand, though the collector, when such settlement was made, said if it was right be would consent thereto. The court declared such settlement inequitable, unauthorized and not binding on either the town or the sureties of the collector. And in Readfield v. Shaver, 50 Me. 37, it was held, that a collector of taxes, when he paid the same into the treasury had a right to dii-ect it to be applied to the taxes due from either of two years in which he had different sureties on his bond.
The appellant’s counsel insist that if the auditor had not authority, nevertheless an appropriation of a Syllabus 3. portion of this payment of $4,363.58, paid January 20, 1870, and directed by the sheriff at the time of its payment tobe applied to the taxes of 1869, could be and was properly applied by the auditor to the taxes of 1867 and 1868, to the l-elief of other sureties of the sheriff, by the authority specially conferred on the auditor by the act passed March 2, 1870. See Session Acts of 1879, ch. 89, p. 99. I do not so understand this act. It directs the auditor to apply this sum to the taxes of 1869, or “ so much thereof as the auditor may be satisfied was collected out of the taxes due the State from the county of Putnam for the year 1869.” But the act does not direct how that portion of this sum which the auditor should be satisfied was not collected out of the taxes of 1869 should be applied; and it was the duty of the auditor to apply it as a credit in the manner required by law, and not according to his pleasure. He actually applied $1,286.24 of this sum to the taxes due from the sheriff for 1867 and 1868, and for which taxes other sureties were bound. This rvas unauthorized by this act.
The counsel for the plaintiff in error insists, that “this special act made the auditor a judge whether any and, if any, how much of this payment was to be applied to the accounts of 1869 ; and his decision under this act is bind[537]*537ing on all parties interested, and could not be reversed by the juiv.” To sustain this position he refers to United States v. Jones, 8 Pet. 384; Philadelphia & Trenton Railroad Co. v. Stimpson, 14 Pet. 458; 4 Rand. 432; ex parte Yearger, 11 Gratt. 655; Allen v. Blunt et al., 3 Story 742. As I have said, I think this special act is •misunderstood by counsel; but if it had meant what he thinks it means, the conclusion drawn by him as to the effect of the auditor’s act would not be justified. The authorities cited only prove that if the legislature commits to an.officer the authority and imposes on him the duty of deciding certain points or matters, the act of such officer cannot in certain cases be reviewed by any other tribunal. But in this case the rights of the sheriff and his sureties were determined and settled by law, on the 26th day of January, 1870. The sureties in the official syllabus 4. bond ot the sheriff dated July 24, 1870, became on that day clearly entitled to this credit of $4,363.58. The Legislative clearly had no power to divest these sureties of this vested right, and on March 2, 1870, by an act of the Legislature deprive them of any portion of this credit and give it to other sureties. Had they done so, the act would have been unconstitutiona.. It would in effect have been depriving them of their property without due process of law. And as they could not do this, they could not confer power on the auditor, an executive officer, to do this. His attempt to do this must therefore be regarded as amounting to nothing; and the rights of the sureties of the sheriff can be in no manner affected thereby.
The question, whether the condition of the bond of July 20, 1869, was, as the law then stood, sufficient to bind the sureties for taxes collected by the sheriff, which he failed to pay over will not be here considered, as in this case there was no such failure.
I am therefore of opinion that the judgment of the circuit court of December 22, 1877, must be affirmed.
The Other Judges Concurred.
Judgment Affirmed.