WALKER et al. vs. CHAPMAN, Governor, &c., 22 Ala. 116

GOLDTHWAITE, J. The objections to vhe notice for the want of sufficient certainty cannot be sustained.

By the act of 1820, under which these proceedings were instituted, it is provided, “ that when any collector of the revenue shall neglect to pay the same into the treasury by the time'he is required by law, it shall be the duty of the Comptroller of public accounts immediately to institute suit for the recovery of the same, by notifying such delinquent collector, his security or securities, that he will, by the Attorney General, on such a day as shall be named in the notice, move for judgment against him or them, for the amount due the State.” Clay’s Dig. 244 § 16.

If the notice complies in substance with the form prescribed by the statute, it is sufficient. In the present case it is given by the Comptroller, and alleges that A. C. Walker was the tax collector of Mobile county, for the year 1846; that he failed to pay into the State treasury, within the time prescribed by law, a specified amount, which was the' balance of the taxes collected by him as such collector; that the other defendants were his securities upon his official bond, the date and amount of which are stated, and which, it is alleged, was payable, conditioned and approved as required by law.

The notice also states the term and the court at which the motion for judgment will be submitted; also, that it will be made by the Attorney General, in favor of the Governor, for the use of the State. It contains every requisite prescribed by the act referred to, and although the facts are not stated with that degree of technical precision and fullness which is necessary in declarations, they are stated with sufficient certainty to fully advise the defendant of the grounds upon which the motion will be made, and to enable the court to pass upon their liability.

Although the notice is substituted in the place of the declaration, it is unnecessary for it to contain every matter which the declara, tion should contain. In motions against the sheriff and his securities, it has never been the practice to describe with particularity his bond,- but it is referred to simply as his official bond. As the law prescribes the form of the bond, and as the record must show every fact necessary to sustain the judgment and jurisdiction of the court, we can see no good reason for requiring a more particular description than is given by the notice.

The object, as we apprehend, which the legislature had in view in authorizing judgments to be rendered, on notices of the character presented by the statute, was, in ■some measure to divest the proceedings of the forms and ^technicalities which encumber the common law action, and to substitute in its place a less formal, as well as a more expeditious remedy. Such was in effect the construction given by this court at a very early day to statutes conferring remedies of a similar character, (Lyon v. The State Bank, 1 Stew. 442;) and the practice since then has been in conformity with that decision.

The notice also shows, that the motion for judgment would be made in favor of the Governor, for the use of the State; and so far as that point is concerned, avoids the objection which was held fatal in the case of Nabors v. The Governor, 3 S. & P. 18. In relation to the constitutional requisition that all process shall be in the style of the State of-Alabama, it.is sufficient to observe, that if it was intended to. apply to notices of this description, we think it complied ; with; -by. the use of the words prescribed, in the commencement of the notice.

Neither can the objection which is taken to the condition of the bond be sustained. The statute (Aikin’s Big. 36, § 6) prescribes, that the bond of the tax collector shall be conditioned for the faithful performance of the duties required of .Jiim while in office, which is in legal effect the condition of theVbond in the present case. It is true, that incorrect recitals in the condition may sometimes vitiate the bond, as in case of the misdescription of a judgment in a writ of error or injunction bond, (Carey v. Barclay, 3 Ala. 484; Wiswall v.

Monroe, 4 Ala. 9;) but where a statutory bond merely super-adds a condition which the statute does not require, its validity even as a statutory bond is not affected by the surplus matter, which will be rejected as surplusage. Dixon v. United States, 1 Brock. 177; United States v. -, 1 Brock. 195; Woods v. The State, 10 Miss. 698; Shunk v. Miller, 5 Barn. 250; Howie v. The State, 1 Ala. 113.

In the present case, however, there is no condition which is not required by .the statute superadded, but it is simply recited that the party was elected, in August, 1845, tax collector of the county of Mobile, to collect the county and State -taxes for the years 1845 and 1846.

The law requires the tax collectors to be elected annually, and it is made his duty to collect the taxes for the next succeeding year, (Clay’s Dig. 568, § 59;) and construing the bond with reference to the law, under the influence of the decisions we have cited, the words “to collect the county and- State tax for the years 1845 and 1846,” may be rejected as surplusage.

It is also insisted on the part of the plaintiffs in error, that the Circuit Court of Montgomery county had not jurisdiction of the motion; and upon this point we think the view taken by the counsel in relation to the act of 6th March, 1848, (Acts 1847-8, p. 8, § 18,) is correct, and that upon its face it is clear that it was intended to apply only to defaults committed under that act, and not to those which were committed before its passage; yet we think the jurisdiction of the court may be sustained under the act of 3d March, 1848, for the reorganizing of the Comptroller’s and Treasurer’s departments, the 12th

section of which provides, “that all notices issued by the Comptroller of public accounts against any delinquent collector of the revenue, or against any other person accountable for the public money, his security or securities, shall be made returnable before the Circuit Court of the county designated by law for the sitting of the General Assembly ; and any special court called for the purpose aforesaid, shall be held as above provided. Acts 1847-8, 114. This

section was evidently drawn with reference to the act of 1820, (Clay’s Dig- 244, § 16,) which conferred jurisdiction on the Circuit Court of Tuskaloosa county, and must have been intended to embrace cases of defalcation which originated under that act, and to provide especially in such cases, for the exercise of jurisdiction of the Circuit Court of the county in which the General Assembly holds its sessions.

The jurisdiction is, if possible, still clearer under the act of 29th February, 1848; which provides “ that all motions or actions required by the existing laws to be instituted by the Attorney General in the-Circuit Court of Tuskaloosa county, shall hereafter be instituted and brought in the courts of Montgomery county.” Acts 1847, 141. This act appears to have escaped the attention of the counsel upon either side, but its language is too plain, and its bearing upon the question at issue too decisive, to require any comment from the court.

Under either of the acts last referred to, we are of opinion that the court in which the proceedings were instituted acquired jurisdiction.

In relation to the argument which is drawn from the use of the term “immediately,” in the statute of 1820, (Clay’s Dig. 244, § 16,) if it is intended as an objection to these proceedings on the ground that they were commenced at too late a period, it is sufficient to observe, that the rule is, that a statute specifying a time within which a public officer is to perform an official act, regarding the rights of others, is directory merely, as to the time within which the act is to be done, unless from the nature of the act to be performed, or the phraseology of the statute, the designation of the time must be considered a limitation on the power of the officer.

People v. Allen, 6 Wen. 486; Pond v. Negus, 3 Mass. 230. If this rule is correct in its application to individual rights, a fortiori, should it prevail in relation to public interests, and in that aspect applies in its full force in the present case. The requisition that the proceedings should be instituted immediately after the default, Avas intended simply as directions to the Comptroller, and not in any Avise to affect the proceeding or the subject of it.

It is also insisted, that this proceeding is barred by the statute of limitations, (Clay’s Dig. 481, § 84,) Avhich provides, that no person shall be prosecuted for any fine or forfeiture under a penal statute, unless the prosecution for the same be instituted Avithin twelve months from the time of incurring the fine or forfeiture; but it is clear that this statute does not apply to the present proceeding, A\rhich is not a prosecution for a fine or forfeiture, but simply a mode provided by the legislature for the purpose of recovering from the officer in default, the money in his hands.

The statute under Avhich these proceedings are instituted is, it is true, of a penal character, because it gives damages against the party; but the act of limitations referred to must be construed to apply to those cases in Avhich the fine or forfeiture only is sought to be recovered. Langdon v. Fire Department, 17 Wend. 234. It certainly Avas not intended to defeat a remedy in which the damages were incidental merely. Another question Avhich is presented by the record is, as to the validity of the payments made by Walker to the Comptroller on the 8th of January, 1847.

By the act of 1805, it is made the duty of the Comptroller “ to examiné, settle and audit the accounts of all public debtors, collectors of any tax or revenue payable to tbe State treasurer; to call upon all such debtors to render accounts, and to pay into tbe treasury • all sums and balances due, and on tbeir failure so to do, to institute proceedings against tbem at law.” Does this clause confer upon tbe Comptroller tbe authority to receive from tbe tax collector tbe revenue wbicb bebas collected for tbe State?

In order to decide tbis question correctly, it may be necessary to consider tbe duties of tbe other officers connected with the., financial department of tbe State; for, if it should appear that tbe legislature has required these payments to be made to a different officer, it would seem to be unnecessary to confer tbe same authority upon tbe Comptroller, and would thus furnish a strong argument against giving it by implication merely.

There is also, we think, an obvious policy, in those cases in wbicb the public interests will permit, in separating tbe duties and authority of tbe officers of tbe same government; and when this has been done, when tbe legislature has selected a particular officer, and invested him with tbe authority to receive tbe public revenue from the collecting officers of tbe State, we know of no principle of law, no sound or valid reason, wbicb would authorize us to bold, that tbe same authority was also intended to be conferred upon another officer to whom it was not expressly given, and to the discharge of whose duties it was entirely unnecessary.

Tbe State treasurer is required to receive and keep tbe moneys of tbe State, (Clay’s Dig. 576, § 6,) and the law also expressly requires tbe tax collectors to pay into the public treasury all moneys due from them. Clay’s Dig. 365, § 42. Tbis, wc should suppose, was sufficiently explicit as to tbe duty of tbe tax collector to make bis payments to the State treasurer ; but by a reference to tbe clause under which it is insisted tbe power is by implication conferred upon tbe Comptroller, it will be seen that its framers could not have contemplated the payments being made to that officer.

He is to audit the accounts of tbe collector of the revenue, “ which are pajmblc to the State treasurer,” and be is to call upon tbe public debtors “to pay into the State treasury all balances due,” &c. The legislature, in all tbe general laws connected with tbe finances of tbe State, seem fully to havG recognized tbe principle to which we adverted, as regards tbe separation of the powers and duties of officers.

The Comptroller of public accounts is but the State auditor; and while he has been invested with the duty of examining and settling the accounts of the State, the legislature have conferred upon him no authority to receive or keep the public funds, or to receive payment of the public dues. Those duties are by law confided to the State treasurer; and the line which divides the duties and powers of the two officers, is clearly thus marked out and defined. The case of the United States v. Giles, 9 Cranch, is the one which is principally relied on to sustain the payment to the' Comptroller.

In that case, Giles had paid the money which as marshal he had collected, on an execution in favor of the United States against a public debtor, to the district attorney, with the assent of the comptroller of the treasury. The question was as to the validity of this payment. The act of Congress gave to the comptroller authority “ to provide for the regular and punctual payment of all moneys which might be collected, and to .direct prosecutions for all delinquencies of officers of the revenue, (U. S.

Stat. at Large, vol. 1, 66;) and the court held, that the power to direct the prosecution conferred the authority to direct its proceeds; but if the law had required that the proceeds when collected by the marshal should have been paid over to the treasurer of the United States, the comptroller would have had no authority to have changed the law, and to direct the payment to have been made to any other person, and on such a case we apprehend that the decision of the court would have been different.

But if it was conceded that the Comptroller, by virtue of the power which is given him under our statute, 1o institute proceedings against public defaulters, can direct the payments resulting from such proceedings, no authority is conferred upon him under this clause to receive the payments before the institution of the suit. We all concur in the opinion, that the payment was unauthorized and invalid.

One item going to make up the indebtedness of Walker, was for the tax upon steamboats, originating under the act of 5th of February, 1846, and it is urged on the part of the plaintiffs in error, that the bond on which these proceedings were instituted, being executed before the passage of the act referred to, does not cover this liability.

The act provides for tbe levying a tax on all steamboats navigating the waters of the Alabama, Tombigbee, Black ’Warrior and Tennessee rivers, in this State; for its collection by the assessors of Mobile, Lauderdale, and Morgan counties; and that when collected it should be paid over to the tax collectors of those counties respectively. Acts 1845-6, 3 § 3. The bond was approved on the 8th of November, 1845, at which time there was no law in force which required any tax to be levied upon steamboats.

As all contracts are governed by the laws existing at the time they are made, the determination of the question presented must depend upon the construction of the statute under which the bond was given, which measures the extent of the liability of the obligors.

The object of all official bonds is, to afford security to the public against the defaults which may be committed by the officer during his term of office; as these duties, and especially those which are connected with the revenue department, must necessarily be varied from time to time, as the interests, policy or wants of the State may require, it is impossible to suppose, unless forced to the conclusion from the character of the duties, or the phraseology of the statute, that the legislature could have intended to restrict the force of the obligation to those duties only, which devolved upon the officer at the time of its execution and approval.

But, independent of these considerations, we think the condition prescribed by the statute in relation to the bonds of tax collectors, sufficiently expressive upon this point. This officer is required to give bond in double the amount of the taxes of his county, to be estimated by the judge taking the same, conditioned for the faithful performance of the duties required of him while in office. Aik. Dig. 36 § 6.

There are not'only no words limiting the application of the condition to past laws, but the language used clearly implies that the bond was intended- to extend to all duties that should be required of the officer during his continuance in office, thus making the obligation prospective in its operation as to laws imposing additional duties connected with the office. * The view we have taken upon this branch of the case is, we think, clear upon principle, is sustained by authority— White v. Fox, 22 Maine 341; Bartlett v. The Governor, 2 Bibb 586; Kindle v. The State, 7 Blackf. 586; Governor v.

Ridgway, 12 Illinois 14; and i s not within the influence of any of the cases which have been cited by the counsel for the plaintiffs in erroi\ Jn the case of The United States v.

Kirkpatrick, 9 Wheat. 720, the question arose upon a bond given for the faithful discharge of the duties of his office, by a collector of direct taxes, appointed under the act of Congress of 22d July, 1813; and the court there held, that the operation of the bond as to the liability of the sureties, was to be restricted to the duties exacted by the collection acts passed antecedent to the date of the obligation; but the decision turned upon the construction of those acts, from which it appeared that a permanent and continuing liability for duties under laws passed subsequently to the execution of the bond, could not have been contemplated by the original act under which the appointment was made; while in the ease at bar, a just construction of the act prescribing the condition of the bond, requires, as we think, its extension to laws passed subsequently to its execution.

It may, perhaps, be questionable, whether the legislature contemplated the discharge of duties by the officer which were inappropriate to, and disconnected with his office; but upon this point we express no opinion, as we are satisfied that the duties imposed by the act of 5th February, 1846, upon the tax collector,of Mobile county, were such as may properly be regarded as appropriate to his office.

A new tax was to be levied, and it will not bo questioned that the collection or receipt of this tax should be devolved upon the tax collectors; and if the property taxed was peculiar to Mobile county, the duties of its collection should have been imposed upon the officers of that county.

In this case, the property was transitory in its nature, and it was not only competent, but proper, for the legislature to impose the duties appertaining to the collection of the tax, upon the officers of those counties which, from their position with regard to the property taxed, would be most likely to ensure the object for which the statute was passed.

As to the ratification by the State of the payments made by Walker to Yan Dyke: The authority to receive the public revenue, could only be conferred upon the latter by law; and if the law did not confer this authority, no officer or agent of the State could do so; and if no officer could authorize the payment, none could afterwards confirm it. It could be done only by the sovereign power of the State. The People v. The Phœnix Bank, 24 Wend. 431; Delafield v. The State of Illinois, 2 Hill 159.

The fact, therefore, that an agent of the State, Avithout authority of law to confirm the payments to Yan Dyke, received his receipts for the purpose, and with the intention of using them as evidence in a suit against him, could not amount to a ratification of the payments. In relation to the question of interest: This proceeding was under the act of 1820, the third

section of which provides, “that in every case of delinquency, the court trying the cause shall grant judgment for the amount due the State, together with fifteen per cent, damages, and interest at the rate of eight per cent, per annum, from the day on which the same became due.” Clay’s Dig. 245 § 18. The provisions of the act of 6th March, 1848, are prospective in their operation, and apply only to defaults under that act; the act of 1820 remaining in full force as to all prior defaults or delinquencies.

Under that act, as we have seen, fifteen per cent, damages, as well as interest, should have been given, and the error of the court was in favor of the defendants below upon this point. ■ • The onl_y remaining question to determine is. whether the court erred in rendering judgment against all of the defendants named in the notice.

The record shows that, at the return term of the notice, the motion was submitted against three of the defendants, the others not having been found, and was continued on the application of these defendants; that it was regularly continued until the Pali term, 1851, when a trial was had, the judgment entry showing, by a recital in the body of the judgment, that all the parties to Avhom the notice Avas directed appeared.

The motion indicated by the notice was in laAV discontinued as to the parties not served, but these parties had the right to introduce themselves into court at any subsequent stage of the proceedings, and by so doing, the discontinuance was cured. Wheeler v. Bullard, 6 Port. 352. This disposes of all the points raised upon the record, and there being no error in the proceedings, the judgment is affirmed.