State ex rel. Hannibal & St. Joseph R.R. Co. v. Schacklett

• Decision Date: 28 February 1866
• Parties: STATE TO USE OF HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Respondent, v. ROBERT SCHACKLETT et al., Appellants.
• Court: Missouri Supreme Court

37 Mo. 280

STATE TO USE OF HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Respondent,

v.ROBERT SCHACKLETT et al., Appellants.

Supreme Court of Missouri.

Febuary Term, 1866.

Appeal from Marion Circuit Court.

Vories & Vories, for appellants.

The plaintiff and appellee cannot recover in this case.

The suit is brought on the collector's bond, and the sureties cannot be made liable in such case unless it is upon a breach of some specific condition or requirement of the bond. In this case, both by law and by the conditions contained in the bond, as well as by the process or tax book placed in his hands, the collector was required to levy and collect the taxes therein assessed and set forth. The subject matter of levying the taxes was in the jurisdiction of the assessor and others, whose business it was to assess the same and place the tax book in the collector's hands. The collector and his sureties could not therefore be made liable for any errors previously committed by others. The process in the hands of the collector will be justification to the defendants. (Brown v. Henderson, 1 Mo. 134, and cases there cited.)

And the illegality of the prior proceeding on the part of the assessor and others would not excuse the collector for failing to collect the taxes as set forth in the tax book and the precept to him delivered. (Kellar v. Savage, 17 Me. 444; s. c. 20 Me. 199.)

The liability of the sureties of a collector on his official bond depends upon the legal construction of the conditions of the bond. Their liabilities cannot be extended by implication or construction, but are limited to the very acts or obligations provided for by the language of the bond; and as the collector in this case has simply discharged a duty imposed upon him by both the law and the bond, no breach has been committed and no action will lie. (Foxcraft v. Nevens et al., 4 Greenl. 72.)

The collector's sureties are protected by the tax book as process in his hands, and cannot be held liable for the errors of others. (Caldwell v. Hawkins, 40 Me. 526, and cases cited.)

In such case if the taxes were illegally assessed, the action would be assumpsit for money had, &c., or an action against the assessor to recover damages for his illegal act. (Ford v. Clough, 8 Me. 334; Smyth et al. v. Titcomb, 31 Me. 272; 9 Johns. 369; 7 Johns. 179.)

Carr, for respondent.

I. The property of the relator being exempt from taxation in the manner pursued in this case, as was decided by this court in the case of the Hannibal and St. Joseph R. R. Co. v. Shacklett, (30 Mo. 550.) the assessor had no jurisdiction over such property to assess it; and having no jurisdiction over the relator's property, the fact of going through the form of assessing it could impart no validity to the assessment, so as to authorize the collector, or even to justify him in enforcing an illegal assessment, any more than a title can be imparted by a bona fide purchaser to a horse which had been stolen. The assessment was coram non judice, and hence void. Of this fact the collector was bound to take notice at his peril.

He was just as much bound to know the law as the relator, or any private citizen. 1. The assessment was void upon its face. (Finn v. Commonw. 6 Barr, Pa., 460; Greenon v. Raymond, 1 Conn. 40; Allen v. Gray, 11 Conn. 95, and a long list of English authorities there cited; Connor v. Commonw. 3 Binn. 38; Toof v. Bentley, 5 Wend. 276; Commonw. v. Kennard, 8 Pick. 133; Bond v. Ward. 7 Mass. 123; Wetmore v. Campbell. 2 Sanf. 341; Osgood v. Clark, 6 Foster, 307; Osgood v. Blake, 1 Foster, 550; Henry v. Sergeant, 13 N. H. 321; Perry v. Bass, 15 N. H. 322; Pickering v. Pickering, 11 N. H. 146; Pickering v. Coleman, 12 N. H. 149.) 2. Even if the assessment was not void upon its face, the notice to the collector, and payment under protest, were sufficient to put him on inquiry, and make him a trespasser in attempting to collect the taxes. (Elliott v. Swartwout, 10 Pet. 137, and authorities there cited; Hearsey v. Pruyn, 7 Pet. 179; Ripley et al. v. Gelston, 9 Johns. 301; Fry v. Lockwood, 4 Cow. 454.)

II. The legal liability of the sureties on the collector's bond is commensurate with that of their principal. That their principal is legally liable has already been decided in the case of the Hannibal and St. Joseph R. R. Co. v. Schacklett, supra. (State v. Moore, 19 Mo. 369; State v. Farmer, 21 Mo. 160; Rollins et al. v. State, 13 Mo. 437; Carmack v. Commonw. 5 Binn. 184; Commonw. v. Stockton, 5 Mon. 192; Ganbor v. Commnw. 7 Barr, 265; Musselman v. Commonw. 7 Barr, 240; Evans v. Commonw. 8 Watts, 398; Masser v. Strickland, 17 Serg. & R., 354; Lloyd v. Barr. 11 Pa. St. R. 42.)

It will be perceived from an examination of the foregoing cases, that the doctrine of estoppel is applied to the sureties to the fullest extent. This grows out of the relations which the parties bear to each other. The sureties, by signing the bond of the collector, thereby agree to pay, if he does not, all damages resulting from any illegal act of their principal, done colore officii; and since this principal has fixed upon himself a clear legal liability in this case by his illegal act, it does not lie in the mouth of his sureties to repudiate their legal liability therefor.

WAGNER, Judge, delivered the opinion of the court.

This was an action instituted in the Marion county Circuit Court on the relation of the Hannibal and St. Joseph Railroad Company against Robert Shacklett and his securities, on an official bond. It appears from the record that Shacklett was sheriff and ex officio collector of Marion county, and that the breach alleged was levying on and advertising for sale and coercing the payment of taxes on property belonging to the relator, and not subject to taxation. The property was assessed by the assessor of Marion county, and a certified copy of the tax book, as the law directs, was duly delivered to Shacklett as collector, for which he gave his receipt. The relator insisted that the property was exempt from the payment of the taxes imposed, and refused to pay the same; whereupon Shacklett levied on a large quantity of rolling-stock belonging to the relator's road, and advertised it for sale to satisfy the taxes assessed against it. The relator then, to regain possession of the property, paid the amount claimed under written protest, and also gave the collector notice in writing that it would commence suit for the re-payment of the money. Accordingly suit was instituted, and the court decided that the property was not subject to taxation, and that the assessment was unwarranted by law, and a nullity, and judgment was therefore rendered against Schacklett in favor of the relator for the amount of money so collected. (Hann. & St. Jo. R. R. Co. v. Shacklett, 30 Mo. 550.)

The relator failing to make the money on the judgment obtained against Shacklett, has brought this suit against the sureties on his bond, for the purpose of getting satisfaction of the demand.

It is contended by the appellants that the action cannot be maintained; that the tax book furnished a full justification to the collector, and that the law peremptorily required that he should proceed to the collection of the taxes in the manner he pursued, and that he could not go behind the books to inquire into the validity of the assessment; and also that the sureties cannot be held liable, as he was pursuing the plain line of his duty, and executing the mandates of the law, and that his action, therefore, amounted to no breach of the conditions of his bond. The general rule is that the tax books,...