State ex rel. Carroll Cnty. v. Roberts

• Decision Date: 31 October 1878
• Citation: 68 Mo. 234
• Parties: THE STATE to the use of Carroll County v. ROBERTS et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

68 Mo. 234

THE STATE to the use of Carroll County

v.ROBERTS et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1878.

Appeal from Carroll Circuit Court.--HON. E. J. BROADDUS, Judge.

Hale & Eads for plaintiffs in error.

HENRY, J.

Roberts was elected sheriff of Carroll county at the general election held in November, 1868, for the term of two years. By his election and qualification as sheriff, he became ex officio collector of the State and county revenue, and as such executed the bond which is the foundation of this action against him and his securities thereon.

The law in force at the date of the bond, relative to the question involved in the controversy, is to be found in the general statutes of 1865, sec. 10, p. 113; secs. 44, 52, pp. 117, 118, and the session acts of 1870, secs. 3, 6, p. 121. The condition of the bond executed by defendants is in conformity to the requirement of section 10, page 113, and is that the collector “will faithfully and punctually collect and pay over all the State and county revenue for the year next ensuing his appointment, and that he will, in all things, faithfully perform all the duties of his office as collector according to law.” Section 44, page 117, provided that “at the term of the county court, to be held on the 3rd Monday in December, (except in St. Louis county, &c.,) the collector shall return the delinquent list under oath or affirmation, to such court, and settle his account of all moneys received by him on account of taxes and other sources of revenue, and the amounts of such delinquent list, or so much thereof as the court shall find properly returned delinquent, shall be allowed and credited to the collector on his settlement.” Section 52, “every collector, except the collector of St. Louis county, shall annually, within thirty days after his settlement on the third Monday in December, with the county court, settle his account with the State auditor and pay into the State treasury the whole amount of the revenue and other funds with which he may stand charged, after deducting his commissions and mileage; and the treasurer shall give duplicate receipts for the amount paid, one of which shall be deposited with the auditor.”

By the act of 1870, section 44 was so amended by section 3 as to require the settlement by the collector to be made with the county court on the 3rd Monday in January instead of the 3rd Monday in December, and section 52 was so amended by section 6 as to require the payment into the State treasury by the collector within thirty days after the settlement contemplated by section 3 of the balance of all revenues then due to the State, &c.

It is contended by the securities, that this extension of time for the settlement by the collector, discharged them from liability on the bond. As between individuals, if the creditor for a valuable consideration, agree with the principal debtor to extend the time of payment or the demand without the consent of the sureties, they are discharged from liability. Is the same principle applicable to the State as a creditor? It may be urged that the State, receiving no consideration for the indulgence, does not by an act of the General Assembly extending the time, thereby release the securities. It may be answered that the only reason why, as between individuals, there must be a valid agreement to extend the time in order to release sureties who have not consented to the extension is, that otherwise it is not obligatory upon the creditor and his right to demand and sue for the debt is not suspended, there being no way except by a valid contract to make a promised extension binding upon the creditor. But the acts of the General Assembly are binding upon every citizen and every officer of the State, and by a legislative enactment the extension is as effectual as an extension secured by a valid contract between an individual creditor and his debtor. The fact that acts of the General Assembly of this character are repealable at the pleasure of that body, cannot affect the question, because the suspension of the right of the State to sue upon her demand, has been accomplished from the date of the approval of the bill until its repeal, and if the right of the creditor to proceed against the principal is postponed but for a day, as between individuals, it as effectually discharges the sureties as if it had been suspended for a month or a year.

The State cannot, by a legislative act, materially modify a contract between herself and a citizen, any more than she can impair the obligations of a contract between citizens. The Legislature cannot increase or vary the obligations of a citizen in a contract entered into by him with the State, and the effect of such legislation as we are considering, if it does not release the security, is to extend his liability on the bond for a longer period of time than he agreed to be bound, and to increase the risk he has taken beyond that which he assumed when he executed the bond. By the law, when the obligation was entered into, the collector was required to settle with the county court on the 3rd Monday in December. By the act of 1870, that settlement was postponed to the 3rd Monday in January. No officer in the State, nor any judicial tribunal could, after the act of 1870, demand of the collector a settlement before the 3rd Monday in January, or the payment of the balance of moneys then in his hands within thirty days after such settlement; and to hold the securities liable, under these circumstances, would be to declare that the State, by an act of the Legislature, may extend the time for which the securities have agreed to be bound for the principal, and by thus modifying the contract, hold them liable for risks which they did not agree to take. The State has no more right or authority to change a contract betwixt her and an individual, than she has to compel the individual to make such a contract in the first instance.

A fundamental principle of constitutional law underlies the application of this doctrine to the State, as well as the familiar principle of the common law, upon which the securities rely. It is true, as is said in some of the cases, that the time fixed by law for the settlement by the collector at the date of the bond, is no part of the contract. It is no part of the contract, in the sense, that if in consequence of the negligence of those officers who are required to settle with the collector, or for any other reason, except an interposition by the State by legislative enactment preventing it, the settlement should not be made at the time required by the law in force at the date of the bond, such failure would operate to discharge the securities. Laches is not imputable to the State, and this is the doctrine announced by the Supreme Court of the United States in United States v. Kirkpatrick, 9 Wheat. 720; United States v. Vanzandt; United States v. Nicholl, 12 Wheat. 509; United States v. Boyd et al., 15 Peters 187, 208.

These cases are cited by the Virginia court of appeals in the Commonwealth v. Holmes, 25 Grat. 771, in support of the doctrine that the securities...