State v. Dunnington

The duty imposed upon the county commissioners by the act of 1831, ch. 281, sec. 8, of taking bond with sufficient security from the county collectors, for the collection of the colonization tax imposed by that act, is a judicial and not a ministerial duty, requiring the exercise of judgment and discretion, and a mere error of judgment in the discharge of this duty, gives the State no right of action against such commissioners.

Appeal from the Circuit Court for Charles county. This was an action on the case brought on the 28th of March 1855, by the State against the appellees, as late commissioners of Charles county. The declaration complains, that whereas, on the first Monday of October 1840, the defendants were, by the act of 1839, ch. 73, duly elected commissioners of the tax for Charles county, and as such, by the act of 1831, ch. 281, sec. 8, entitled “An act relating to people of color in this State,” did levy on the assessable property of Charles county, clear of expenses of collecting the same, the sum of $446.66; and the said State further says, that the sum so levied as aforesaid was duly delivered for collection to Allison Roberts, late of said county, deceased, on the 21st of Septemberl842, he, the said Roberts, having been duly appointed collector in and for Charles county, by the commissioners aforesaid, before the delivery of the sum aforesaid; and the State further says, that by the act of 1831, ch. 281, aforesaid, it was made the duty of the commissioners aforesaid to take bond from the said Roberts, as collector of the sum so levied and delivered, with sufficient security for the faithful collection and payment thereof into the treasury of the State; and the State further says, that the commissioners aforesaid did not take from the said Roberts, as collector as aforesaid, a bond with sufficient security, as they were required to do by the act aforesaid; and the State further says, that said Roberts did not collect and pay into the State Treasury the sum so levied as aforesaid, and delivered to him for collection, and inasmuch as the said Roberts was not required to give bond with sufficient security by said commissioners, as by the act aforesaid they were required to do, a total loss has accrued to the State of the sum so levied and delivered as aforesaid, with interest thereon; and the said State saith, that by reason of the premises aforesaid, and the failure of the commissioners aforesaid to take bond with sufficient security, as they were by the law required to do, the said commissioners have not performed their duty according to law, but have been guilty of such negligence in office that the said State has sustained great damage, to wit, the sum of $1500, and (hereupon it brings suit, <fcc. To this declaration the defendants demurred, which demurrer the court (Grain, J.,) sustained, and gave judgment for defendants for costs, and thereupon the State appealed.