Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1874-03-01
IMPORTANT 10 REFRSUE COL.
LECTORS.
what Time Does the Law Reauire the
Collector 10 Make His Report.
The State vs.. Robert Chadweu ana
Others.

Mcfarland rendered an opinion affirming
the decision OF the court below in the case
of the State vs.. Robert Caldwell and 9th
ers. The following is the opinion:
This is a motion made by the State TO re-
cover of R0bt. Caldwell, Tax Collector TOR
Davidson county, and his smeties on his
official bond, Sl9,363. 10, a balance of rev.
enue claimed TO be due the State from said
Collector for the year 1871. The motion
was heard befOIe Hon. Jas. w. McHenry,
special judge, and judgment rendered in
favor OF the State for balance of 81 ,995. 81
and S1,1TO interest; and the defendants
have appealed from the judgment.
The balance claimed in the Corlptrol-
ler's statement Of the account, upon which
the motion was predicated, was the amount
moved for; but on the trial credits were
allowed for e1o-s and insoleencies allowed
by the County Court, and for commissions
on the amount collected and paid over, re-
ducing the amount of the judgment rem
dered below. The only question now is,
whether the Comptroller was correct in-re-
fusing to Caldwell credits for two items
claimed by him-one an item Of $40. S0S.92,
the amount of State taxes due on real
estate reported by him TO the Circuit Court
for condemnation; the other, S1,6T0, fees
for making the sale of the land.
The code, sec. 6iS, enaets that son set
Element of his accounts with the Comp
troller and County Trustee the collector
shall be allowed credit" as herein speci-
fed, setting forth seven different credits.
The 9Th is 'for the taxes on all lands and
town lots reported by him for non-pay-
ment Of the taxes due thereon"
Other sections give special direction as
to all the duties of the collector, among
which is the duty to report to the Circuit
Court for condemnation all lands in cases
where there are no goods or chattels to dis
train. See 612. And upon making this
report, as required by law, the collector is
entitled to a credit AGAINST the aggregate Of
taxes, charged against him, for the whole
amount of taxes due on the lands thus re-
ported. This is the credit specified in sub
section 3, sec. Gas, above referred TO. Sec
ton 652 enacts that the evidence upon
which the 9th credit is allowed shall De a
copy Of the collectors report, certified by
the clerk under seal of the court. Where
the report is duly made by the collector, he
is entitled TO the credit at once. After the
land is condemned, if it be afterwards sold
and money received by the collector, he is
to be charged with the amount thus re-
son vs.. Griffin, Sneed, ISL. although
the provisions of the article of the Code re-
ferTed to have more direct reference to the
settlements TO be made, and the accounts
10 be kept, by the Comptroller, vet we
think they also furnish the grounds upon
which the collectors liability is TO be de-
termined by the eOurt.)
1t is maintained by the Attorney Gen
eTal that Caldwell is not entitled to the
credit in the present case, because he did
not make the report az the time required by
law. Ii appears that he received the tax
books from the clerk of the County Court
on the 9th Of October, 1871; that he made
the report in question on the 9Th Of March,
1873, during the January term OF the Cir
cut COurC of Davidson county. This
raised the question, within what time does
the law require the collector to perform his
duties, and especially the duty Of making
the report in question, in order to entitle
him to the credit.
The bond Of the Collector binds him TO
faithfully collect and pay over all taxes by
him collected by the last day of December.
Sec. 500.
1t is made the duty of the Comptroller to
report delinquent taX-collectOrs, and any
officer failing 10 collect, make returns. or
settle or pay over money OF the State By
him received al the time and in the man
ner required by law, may be proceeded
against summarily, upon the instruction
of the Comptroller, whose statement Of the
account Is pTima facie evidence Of the
amount due. Code $50 ct seq.
Sec. 6l2 enactS that sIn case there are
no goods and chattels on which the Col
lectOr can make distress for public taxes,
he shall make report thereof to the Circuit
Court Of the county at the first term in
each year for the preceding year or years,
or az any term Of the court" etc. We think
it manifest that it was moi the intention OF
the Legislature to leave TO it the discretion
or option of the Collector to make his re-
port at any time after the first of the sue
ceeding year. Such construction would
not make it obligatory upon him to comply
with this duty by any particular time.
These sections taken together evidently
contemplate that the Collector shall COM
plete his duties by the last day Of Deem
Der, and his failure 10 do so puts him in de
fault and renders him liable to motion.
But the law requires the taX-5OOk TO be |
made out by the Clerk of the County |
Court from the original aSseSsment-bOOks, |
and delivered to the collector by |
the first Monday in MAY. |
This duty he is required under severe pen
alties 70 perform. Code $3.50. By recent |
act this is changed to the first Monday in 4
April. The Textbook, thus made out, is |
the collectors authority for collecting the |
taxes, and without the book he is not
bound to proceed, 1t often happens, as it
did in the present case, that for some
reason this du-y was not performed in
the tine required. In the present case The
textbook was not received by the collector
until the 9th of October. 1871. Was he
still bound 10 collect the taxes and
discharge all his duties by the last
day of December-ouly about two
months? This would be very harsh con-
StruCtiOn. and the result would be that the
Textbook might be delivered TO the COllec-
tor a few days before the last day of De
cenher, leaving him no time to discharge
his duties, and still he would be liable TO a
taxes Immediately upon the expiration of
the time. 1t is argued that he might still
60 on afterwards and collect the taxes to
reimburse himself and suretieS. But We
think the more reasonable construction
would he that the liability Of the
Collector to be proceeded against
instantly after the last day of
December must depend upon his being
put in 4 condition to discharge this duty.
The corresponding duty of the other Off
Gers and agents of the State must also be
performed, at least, such as are absolutely
essential to enable the Collector to perform
his. We are not 20 suppose that the Leg
islature intended 10 require absolute i'm
possibilities, and to require an officer to
perform a duty within a particular time,
and vet by the failure Of another officer and
agent of the State to perform his duty, it
becomes absolutely impossible for the for
mer to discharge his duties within the time
limited.
We think a reasonable and Just cOnstruc-
ton of these acts is, that when the clerk
Of the court fails to furnish the collector
with the book at the time fixed by law, the
collector shall be allowed the same time he !
would have been allowed had the book
been delivered to him at the proper time,
/. e., time corresponding with the time
from the first Monday in May, or April as ,
now fixed, until the last day Of De
cember; and rs to reporting lands for
unpaid taxes, he would have the
first term of court of the county :
after tine expiration of the time. And in !
this view probably section 612 provides :
~ rouor4 Of lands cbaU no made NJ fba