Harris v. State ex rel. Rankin County

Simrall, C. J.,

delivered the opinion of the court.

, The plaintiff in error contends that the bond' sued upon is-, invalid, because it was illegal to have executed it; second;, that it is without consideration, and, therefore, not binding.

It seems to have been 'conceded by the counsel for the ob *54 ligors that the cases of Byrne v. The State, 50 Miss. 690 , Taylor v. The State, 51 Miss. 79 , and Cooper v. The State, 53 Miss. 625 , either in principle or the reasoning', stand in the way of the positions asserted; but these cases are opposed, it is said, to the earlier decisions (McNutt, Gov., v. Lancaster, 12 Smed. & M. 570, Tucker v. Hart, 23 Miss. 548 , DeSoto County v. Dixon, 34 Miss. 150 , and especially The State v. Bartlett, 30 Miss. 62 ), which lay down the law correctly.

French’s Case, 52 Miss. 759 , pointed out a most serious embarrassment in the revenue statute, from an inadvertent emission to reenact a portion of the Code of 1857, on the subject of the tax-collector’s bond. French had made a bond as sheriff, and the ruling was that, the Code of 1871 not having declared the failure to give the tax-collector’s bond cause of forfeiture of the office of sheriff, he would not for that reason be ousted from office. There was also a dictum in the judgment of the court that sheriffs who had given bonds as tax-collectors were bound thereby.

A careful perusal of chapter 22 of the Code clearly indi•cates the legislative will that the sheriffs, as tax-collectors, shall give bonds. Thus, section 1725 directs suit on the tax-collector’s bond for a failure to pay into the state and county treasuries the taxes collected by them. So,'section 1752 directs suit to be brought on the collector’s bond, against principal and sureties, for a failure or omission to collect the taxes.

Whilst there is a clear expression that bonds must be given for the good conduct of the officer, the Code is silent as to the time and the penalty. All other particulars are provided for. Section 309 prescribes the form of all official bonds, but out •of abundant caution enacts that all (such) bonds shall be "binding, in whatever form taken, so faj- as they may not be •conditioned for the performance of acts in violation of the laws and policy of this state. If the bond omitted the penal sum altogether, but contained a covenant for the due and faithful performance of the duties imposed by law, it would hardly he said, in view of the statute, that it would not be obligatory. *55 The penalty has no other effect than to limit the liability of the sureties. They undertake for the good conduct of the principal; the penal sum is the maximum that they agree to pay.

It is impossible to say that, within the purview and intendment of such legislation as this, it was illegal for Shelton to bave executed the bond; and that the state, as insisted by counsel, having participated in the illegal transaction, cannot maintain an action upon it. Unmistakably the allusion in the statute was to the bond for the indemnity of the state and county. Shelton and his sureties so understood it; so did those appointed by law to accept and approve it. It was so understood and acted upon throughout the state.

The idea pervades the legislation respecting the public revenue that two indemnities or securities were provided for the protection of the state and county: one was a bond with sureties, the other was to indict and punish certain derelictions of duty as misdemeanors.

There is no foundation in the law for the position that the bond is invalid if not given on a precise day, or within a certain period of time. The bond was given before the defaults complained of were committed. It was executed by the obligors, and accepted by those who represented the state, as security for the due collection and accounting for the taxes due to the state and county. It does not lie in the mouths of the plaintiffs in error to say that Shelton ought to have made it earlier. The obligee was content to accept it then. The ■delay in the performance of a continuous duty is not a matter •of just complaint by him on whom its doing rested. The other party might complain — he surely cannot.

Lancaster’s Case, in 12 Smed. & M. 570, was decided under a statute which, as construed by a majority of the court, made the tax-collector a trespasser, liable to whomsoever he may have collected taxes from. “All his acts and proceedings under color of office were absolutely null and void,” and •“ he would (in doing them) be guilty of a misdemeanor.”

*56 In Tucker v. Hart, 23 Miss. 548 , the objection which the court took to the form of the bond is cured by section 307 of the Code, above cited. DeSoto County v. Dixon, 34 Miss. 150 , is rested for authority on McNutt v. Lancaster. The-State v. Bartlett, 50 Miss, supra, is rested on the reason that the statute did not require a bond.

Great strength is given to these views by section 1376, which provides that, when a special tax may be levied for county purposes, the Board of Supervisors may require the; collector to give bond for the faithful collection and payment, of the same.

This bond was given in this condition of law. The Legislature does not in express words prescribe the time when it. shall be given, nor the penalty, but it does in express terms-recognize that the bond must be executed; and liability was-incurred for nonfeasance or misfeasance.

It would be shocking to reason to hold that the bond of a, public officer was void because not executed within the time-named in the statute, if he afterwards made the bond and continued to perform his official duties. As we said in The State v. Cooper, supra, it is much more reasonable and consonant to' justice to hold, where such omission is cause of forfeiture, that the state, because the bond had-been executed, had waived her right to proceed against him, and permitted him to continue in office, for the reason that he furnished security for good conduct. But that question is not involved in this case.

We are of opinion that the judgment of the Circuit Court is. right, and it is affirmed.