State v. Malcom

• Decision Date: 27 May 1924
• Citation: 226 P. 1083,39 Idaho 185
• Parties: STATE, Appellant, v. E. T. MALCOM, as Assessor in and for Bingham County, Idaho, and FIDELITY AND DEPOSIT CO. OF MARYLAND, a Corporation, Respondents
• Court: Idaho Supreme Court

226 P. 1083

39 Idaho 185

STATE, Appellant, v. E. T. MALCOM, as Assessor in and for Bingham County, Idaho, and FIDELITY AND DEPOSIT CO. OF MARYLAND, a Corporation, Respondents

Supreme Court of Idaho

May 27, 1924

ACTION ON OFFICIAL BOND-CONSTITUTIONAL LAW-MANDATORY PROVISIONS-SELF-OPERATIVE PROVISIONS-C. S., SECS. 3267 AND 3307-CONSTITUTIONAL OFFICE-STATUTE IMPOSING ADDITIONAL DUTIES-FAILURE TO PERFORM-DEFENSE OF UNCONSTITUTIONALITY-ESTOPPEL-DE FACTO OFFICE.

1. It is an established general rule that constitutional provisions are to be construed as mandatory unless, by express provision or by necessary implication, a different intention is manifest.

2. The provisions of C. S., secs. 3267 and 3307, making it the duty of the assessor to collect certain personal property taxes and creating a liability on his part for failure so to do are unconstitutional.

3. A ministerial officer may set up the unconstitutionality of a statute where the nature of his office is such that it is his duty so to do, or where his personal interest is affected by the statute.

4. In a suit for damages for failure to perform duties imposed upon a constitutional officer by an unconstitutional statute, he and his bondsman are not estopped to set up the unconstitutionality of the statute.

5. There can be no "de facto" office where the act attempting to create it is clearly repugnant to the constitution.

6. The holder of a constitutional office and his bondsman are not liable on his official bond for failure to perform duties which the legislature has attempted to thrust upon that office by an unconstitutional act.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.

Action on official bond. Judgment for defendants. Affirmed.

Judgment affirmed, with costs to respondent.

Hamilton Wright, for Appellant.

An executive officer of the government has no authority to decline the performance of a purely ministerial duty which is imposed upon him by law on the ground that the law is unconstitutional. (Threadgill v. Cross, 26 Okla 403, 138 Am. St. 964, 109 P. 558; People v. Ames, 24 Colo. 422, 51 P. 426; 1 Cooley on Taxation, pp. 443, 444.)

The collection of taxes is a purely ministerial function. (26 R. C. L. 369; State v. Kelly, 27 N. M. 412, 21 A. L. R. 156, 202 P. 524.)

When sureties, for the purpose of enabling their principal to assume the duties and enjoy the emoluments of an office to which he has been appointed or elected, execute an official bond containing a recital that the official was duly appointed, or elected, they will not be permitted afterwards, when sued on such bond, to deny the qualifications of the officer or the validity of the act creating the office. (Blaco v. State, 58 Neb. 557, 78 N.W. 1056; State v. Powell, 40 La. Ann. 234, 8 Am. St. 522, 4 So. 46; State v. McDonald, 4 Idaho 468, 95 Am. St. 137, 40 P. 312; People v. Jenkins, 17 Cal. 500.)

Every law of the legislature, however repugnant to the constitution, has not only the appearance and semblance of authority, but the force of law. It cannot be questioned at the bar of private judgment, and, if thought unconstitutional, resisted, but must be received and obeyed as, to all intents and purposes, law, until questioned and set aside by the courts. This principle is essential to the very existence of order in society. (State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409; Lang v. Mayor etc. of Bayonne, 74 N.J.L. 455, 122 Am. St. 391, 12 Ann. Cas. 961, 68 A. 90, 15 L. R. A., N. S., 93; Beaver v. Hall, 142 Tenn. 416, 217 S.W. 649.)

An officer may not dispute the authority or avoid the responsibilities of an office which he has voluntarily assumed. The law of estoppel binds him. (State v. Spaulding, 24 Kan. 1; State v. Dawe, 31 Idaho 796, 177 P. 393; Placer County v. Astin, 8 Cal. 303; State v. Mims, 26 Minn. 183, 2 N.W. 494; People v. Robertson, 6 Cal.App. 514, 92 P. 498; People v. Bunker, 70 Cal. 212, 11 P. 703; Daniels v. Tearney, 102 U.S. 415, 26 L.Ed. 187; Greene County v. Lydy, 263 Mo. 77, Ann. Cas. 1917C, 274, 172 S.W. 376.)

And the sureties on his official bond are likewise estopped. (Boone County v. Jones, 54 Iowa 699, 37 Am. Rep. 229, 2 N.W. 987, 7 N.W. 155; Church v. Swetland, 243 F. 295; Sheldon v. Chicago Bonding & Surety Co., 190 Iowa 945, 181 N.W. 282.)

Whitcomb, Cowen & Clark, for Respondents.

"Amendment No. 22, which provides by striking out the words 'who is ex-officio tax collector' after the words 'a county assessor' and inserting the words 'and also ex-officio tax collector' after the words 'a county treasurer, who is ex-officio public administrator,' is self-operative, and became a part of the state constitution upon its adoption by the voters of the state at the general election on the 5th day of November, 1912." (Cleary v. Kincaid, 23 Idaho 789, 131 P. 1117.)

Sec. 6 of art. 18 of our constitution is mandatory. (6 R. C. L., sec. 50, p. 55; McDonald v. Doust, 11 Idaho 14, 81 P. 60, 69 L. R. A. 220; 12 C. J. 740.)

"When an office is created by the constitution, it cannot be enlarged or lessened in scope by any statute, or filled in any other manner than that directed by the constitution." (People ex rel. Ahern v. Ballam, 182 Ill. 528, 54 N.E. 1032.)

"The legislature, in the absence of special authorization in the constitution, may not abolish a constitutional office, or change, alter, or modify its constitutional powers and function." (State v. Douglass, 33 Nev. 82, 110 P. 177; Love v. Baehr, 47 Cal. 364.)

"An assessment can only be made by the officer designated by law to make it. When the constitution devolves that duty upon a particular person, the legislature may not substitute another." (Adams v. Tonella, 70 Miss. 701, 14 So. 17, 22 L. R. A. 346, citing People v. Kelsey, 34 Cal. 473; People v. Hastings, 29 Cal. 449; People v. Sargent, 44 Cal. 430; Houghton v. Austin, 47 Cal. 646; R. & D. R. Co. v. Orange County Commrs., 74 N.C. 506; Wilmington etc. R. Co. v. Board of Brunswick County Commrs., 72 N.C. 10.)

MCCARTHY, C. J. Budge, William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

MCCARTHY, C. J.

Respondents are the assessor of Bingham county and his official bondsman. This is an action by appellant to recover the aggregate sum of $ 11,222.01 on three several official bonds of respondent as assessor for Bingham county covering a period of four years, or two terms of office. The three causes of action are based on respondent's failure to collect personal property taxes assessed by him for the years 1919, 1920 and 1921 and 1922, and not secured by a lien on real property. The general demurrer to the complaint was sustained and, appellant refusing to amend, judgment was entered dismissing the action. From this judgment appeal is taken, the specifications of error being that the court erred (1) in sustaining the demurrer and (2) in dismissing the action.

Appellant claims that C. S., sec. 3267, made it the duty of respondent to collect these taxes. It reads as follows:

"Sec. 3267. It is hereby made the duty of the assessor, immediately upon assessing personal property whereon the tax is not a lien on real property of sufficient value, in the judgment of the assessor, to insure the collection of such tax, to compute the amount of taxes due on such personal property, based upon the levies for state and county, city, village, road district, school district or other purposes for the preceding year."

C. S., sec. 3307, provides as follows:

"Sec. 3307. The assessor shall be liable upon his official bond for the amount of all taxes on personal property which have not been collected or accounted for in his settlement with the board of county commissioners."

Up to 1912 the state constitution contained the following provision:

"The legislature, by general and uniform laws, shall provide for the election biennially in each of the several counties of the state, of county commissioners, a sheriff, county treasurer, who is ex-officio public administrator, probate judge, who is ex-officio county superintendent of public instruction, county assessor, who is ex-officio tax collector, a coroner, and a surveyor." (Const., art. 18, sec. 6.)

In 1912 this section was amended so as to read as follows:

"The legislature by general and uniform laws shall provide for the election biennially, in each of the several counties of the state, of county commissioners, a sheriff, a county treasurer, who is ex-officio public administrator and also ex-officio tax collector, a probate judge, a county superintendent of public instruction, a county assessor, a coroner, and surveyor." (Laws 1912 (Ex. Sess.), p. 53.)

Respondent contends that the statute making it the duty of the assessor to collect unsecured personal property taxes is in conflict with the provision of the constitution as amended and therefore void.

"It is an established general rule that constitutional provisions are to be construed as mandatory unless, by express provision or by necessary implication, a different intention is manifest." (12 C. J. 740, sec. 145: 6 R. C. L., p. 55 sec. 50; McDonald v. Doust, 11 Idaho 14, 81 P. 60, 69 L. R. A. 220.) This particular section of the constitution as amended is self-operative. (Cleary v. Kincaid, 23 Idaho 782, 131 P. 1117.) There can be no splitting of hairs over the proposition that it is the duty of the tax collector to collect taxes. Since, prior to the amendment, the assessor had been tax collector, the evident and only purpose of the amendment was to relieve the assessor of his duties as tax collector and impose them upon the treasurer. The language is so clear that there is no room for argument or construction. The legislature cannot enlarge or decrease the scope of a constitutional...