State v. Dunnington

• Decision Date: 22 July 1858
• Citation: 12 Md. 340
• Parties: THE STATE v. FRANCIS DUNNINGTON, and others, Commissioners of Charles County.
• Court: Maryland Court of Appeals

12 Md. 340

THE STATE v. FRANCIS DUNNINGTON, and others, Commissioners of Charles County.

Court of Appeals of Maryland.

Jul. 22, 1858

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 September 1842, 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 thereupon it brings suit, & c.

To this declaration the defendants demurred, which demurrer the court (CRAIN, J.,) sustained, and gave judgment for defendants for costs, and thereupon the State appealed.

The cause was argued before LE GRAND, C. J., ECCLESTON, TUCK and BARTOL, J.

Robert S. Reeder, State's Attorney for Charles county, for the State:

By the act of 1839, ch. 73, the name of the levy court was changed to that of commissioners, and all the powers which the former possessed were transferred to the latter. By the act of 1831 ch. 281, sec. 8, the levy courts or commissioners were authorized annually to levy a certain amount on each county, and on Charles county the sum levied was $446.66, and it was provided that this amount shall be collected in the " same manner and by the same collector or collectors as county charges are collected. The levy courts or commissioners, as the case may be, respectively taking bond with sufficient security from each collector, for the faithful collection and payment of the money in the treasury of the eastern or western shore, as the case may be, at the time of paying other public moneys to and for the use of the State." According to the case of State vs. Waters, et al., 1 Gill, 302, a specific bond was necessary, and this money could not be collected on the general bond of the collector. The declaration in this case avers the proper appointment of the commissioners, and of the collector, the failure of the former to take the bond, as required by the act of 1831, ch. 281, sec. 8, and of the latter to collect and pay over the money as it was levied and placed in his hands for collection. The defendants demurred generally, and thereby admitted the facts as averred in the declaration, and the question now arises, are the commissioners responsible for the amount of the money lost to the State through neglect in not taking bond? have they so far disregarded the requirements of the law, and been so far guilty of official negligence and misfeasance as to make them liable for this tax?

In 1 Ev. Harris, 358 to 370, the court will find precedents of declarations against officers for official negligence and misfeasance, and among them are actions against a sheriff for not collecting fees, and for levying more fees than the law allows on writ of execution, for bringing fi. fa. on more goods than necessary, and for various other cases of official misconduct, either wilfully or through neglect. In 1 Saund. Pl. & Ev., 337, under the title " " " Case, " it is said: " Case affords a most extensive remedy for all breaches of duty ex quare contractu; and from a given state of facts the law raises an obligation to do a particular act, and there is a breach of that obligation, and a consequential damage, an action on the case founded in tort is the proper form." In this case the commissioners were duly elected or appointed by the popular power, and they proffered to become the officers or agents of the people, and there was a contract to perform a duty and receive compensation. In this position there was a legal obligation upon them to perform a positive duty, as specified and required by the law, and it seems to me, if, through negligence or mismanagement, they caused a loss to the State, the employer, they are clearly liable. On the same page of Saunders it is said: " Case often lies as a concurrent remedy with assumpsit, …. it by no means follows, that because a promise may be implied by law, the action on the case, which is in terms founded on the breach of that duty from which the law implies a promise, may not also be maintainable." Either case or assumpsit may be maintained against one when a legal duty rests upon him, and he violates that duty. But, on the same page of the same book, we find language, it seems to me, clearly embracing this case. The author says: " And in Govett vs. Radnidge, 3 East., 70, Lord Ellenborough observes, there is no inconvenience in suffering the plaintiff to allege his gravamen as consisting in a breach of duty arising out of an employment for hire, and to consider that breach of duty as tortious, instead of considering the same circumstances as forming a breach of promise implied from the same consideration of hire." And the author upon this remarks: " But not only in the case of implied, but in express contracts, if they create a duty, case will lie; for although there be an express contract, a party is not bound to resort to that contract, but he may declare on the tort, and say that the party has neglected to perform his duty." Under the title " " " " Assumpsit, " page 110 of the same work, it is said: " Assumpsit will lie for non-feasance, misfeasance, or malfeasance, for where a defendant has been guilty of a tortious neglect of his duty, the plaintiff may waive the tort and rely on the circumstances as forming a breach of promise implied from some consideration of reward." In Angel on Lim., 43, it will be seen that the United States maintained an action of assumpsit; and on page 147, it is said, an action of assumpsit may be maintained for malfeasance, misfeasance, and non-feasance, and on page 89, the doctrine is still more distinctly stated, that assumpsit lies to recover damages for consequential wrongs or torts, which, though they are ex delicto, are quare ex contractu; and they arise from malfeasance, or doing what the defendant ought not to do; or non-feasance, or not doing what he ought to do; and misfeasance, or doing improperly what he ought to do properly.

In this case there was, I suppose, an express promise to perform a legal duty, and for the performance of that duty the parties were to receive...