State v. Powell

• Decision Date: 01 March 1888
• Docket Number: 10,141
• Citation: 40 La.Ann. 234,4 So. 46
• Court: Louisiana Supreme Court
• Parties: THE STATE OF LOUISIANA v. M. S. POWELL, TAX COLLECTOR ET AL

4 So. 46

40 La.Ann. 234

THE STATE OF LOUISIANA v. M. S. POWELL, TAX COLLECTOR ET AL

No. 10,141

Supreme Court of Louisiana

March 1, 1888

APPEAL from the Eighth District Court, for the Parish of East Carroll. Deloney, J.

C. S Wyly and W. G. Wyly, for Plaintiff and Appellant.

F. F Montgomery and J. W. Montgomery, for Defendants and Appellees.

J.M Kennedy, on some side.

White &amp Saunders, on same side.

OPINION

FENNER, J.

M. S. Powell was elected as sheriff and ex officio tax collector in 1884, and was commissioned and qualified as such on June 16, 1884, for the full term of four years. In June, 1885, he absconded, and was declared a defaulter to the State and parish for a large amount of taxes not accounted for.

The present action is brought against him and the sureties on his official bond. A separate judgment was rendered against his succession, he having died after suit was instituted, for the amount claimed, without prejudice to the rights and defenses of the sureties, as to whom the case was subsequently tried, resulting in a judgment in their favor.

The sureties, admitting their signatures to the bond, filed a general denial as to all other matters and also certain special defenses.

We will first consider the special defenses, which go to the root of the action, viz:

1. They show that Powell had held the same office during several previous years, having been elected as his own successor; that he had been a defaulter to the State in each of said years; that the law of the State required the Auditor of Public Accounts to publish annually the names of all defaulters; that the Auditor failed to make such publication; that by reason thereof the fact of his previous defalcations was concealed from them, and that they signed the bond through error in ignorance of this fact, which, if they had known, would have prevented them from signing the same.

2. That under Article 171 of the Constitution the said Powell, by reason of his aforesaid defalcation, was ineligible to the office of sheriff, and that, having been elected and commissioned in violation of a constitutional prohibition, the bond is invalid and void.

These defenses are utterly unavailing. It has been so often held that sureties on the bond of an officer cannot avail themselves of laches or omissions of other officers in the performance of duties imposed by law as a ground of discharge of their own liability, and that the ineligibility or disqualification of their principal is no defense, that a mere quotation of the precedents is an all-sufficient disposition of those defenses. Board vs. Judice, 39 Ann. 896; St. Helena vs. Burton, 35 Ann. 521; Board vs. Brown, 33 Ann. 683; State vs. Blohm, 26 Ann. 538; Mayor vs. Merritt, 27 Ann. 568; State vs. Breed, 10 Ann. 491; State vs. Dunn, 11 Ann. 549; State vs. Hayes, 7 Ann. 118; Duncan vs. State, id. 377; Mayor vs. Blache, 6 La. 500.

The case last cited learnedly and scientifically disposes of the defense of error, based on concealment or failure to give notice of prior defalcations.

The State's claim is based upon, and sustained by, certified extracts from the books of the auditor of public accounts. The admissibility and sufficiency of such evidence are disputed by defendants; but it is well settled that they are official records, kept under requirements of law, and as such are admissible and furnish full prima facie proof. State vs. Masters, 26 Ann. 268; State vs. McDonnell, 12 Ann. 741.

It is even expressly provided by law that such certified statements shall be held sufficient evidence for the finding of an indictment against a delinquent tax collector and "shall be read in evidence against the accused on the trial of the case." Act No. 107 of 1884, sec. 11.

As to the nature and effect of these statements, the Court has said: "The process of computing debits and credits on a tax collector's account is very simple. He is charged with the sum total of the rolls and of the licenses, and it is for him to offset these by legal vouchers for legal payments and by a delinquent list in due form. The tax collector is presumed to have collected all that is on his roll and his number of licenses, and if he does not settle by a given day, he is a defaulter ipso facto. Everything is presumed against him. He is prima facie liable for the whole amount of the assessment roll, and the onus of proof is upon him to show discharge, payment," etc. Police Jury vs. Brookshier, 31 Ann. 736; State vs. Guilbeau, 37 Ann. 718; Vermillion vs. Comeau, 10 Ann. 695; Scarborough vs. Stevens, 3 Rob. 147.

The defendants have failed to furnish any legal vouchers whatever to show any offsets.

They set up that in February, 1885, Powell made large payments to the State treasurer, which they claim were made out of moneys collected from the taxes and licenses of 1884, and they produce the treasurer's receipts. These receipts show a certain amount paid on account of taxes and licenses of 1884, which credits are duly entered and allowed in the auditor's certified accounts herein sued on. The balance of the payments are expressly imputed by the receipts themselves to taxes and dues of previous years. How can defendants contradict the receipts offered in evidence by themselves, and of what avail would such contradiction be? The payments so imputed operated a discharge of the dues to which they are imputed, and how can they have the double effect of discharging others to an equal amount?

This Court has expressly held that sureties are not released because the collections covered by their bond have been paid by the sheriff into the treasury on his account for a preceding year.

"The disposition of it alleged by the defendants," says the Court, "was as much a misappropriation as if he had used it in the payment of his private debts." State vs. Hayes, 7 Ann. 121.

The defendants further allege that the blank licenses, with which Powell was charged to the amount of $ 5592.50, were never used by him, but were turned over by his deputy to his successor in office -- I C. Bass -- for which sum they claim credit. The only word of evidence in the record with regard to this important allegation is this statement by Bass as a witness: "T. J. Powell was in charge as deputy when I took possession. He turned over to me in blank State licenses for the year 1885, $ 5592."

There is nothing to show that this turning over was ever reported to the auditor; that Bass was ever charged with them; what he did with them, whether he disposed of or accounted for them. If they had been returned to the auditor, or charged to Bass or otherwise accounted for to the State in any...