The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-07-10
SUPREME COURT DECISIONS.
RruorIeh weekly NV w. Je"ki"s,
Attorney az Law
APRIL TERM. 1850.

THE STATE OF MISSISSIPPI,
VS..
w. III. HARVEY, ct al.
Error the Circuit Court, LIST DISTRICT OF
Kinds county, Hon. $. 5. Calhoon, Judge
The facts of the case are stated IN the
opinion, which is given in full.
I'll. &F.A. r. Wharton for plaintiff IN
error.
Nugent 4 Melville, and NJ. Green, for
defendants in error.
GEORGE, G. j., delivered the opinion OF
the Court.
AT the general election in November
1873, VIM. Ill. Harvey was eiectea oneiih
of Kinds county, for the constitutional
term commencing on the first Monday III
January A. ID. 1874. He executed an
official bond rs Sheriff, as required by law,
and afterwards on 18th of January, 1874,
executed or attempted to execute bono
as TaX-colector, which was accepted ana
approved by the Chancery Clerk OF the
against Harvey and his sureties, for
balance of unpaid taxes due the state,
collected by Harvey during his term OF
office The pleadngs are very confused
and complicated, arising in great part from
the unnecessary separation Of the several
defendants, of whom there were eleven, Ill
their pleas and rejOinders and demurrers,
and from the further fact that matters OF
defense which could have been made under
the plea of non est .factam sworn to, were
set out, specially requiring special replica
lions to answer them. We shall not notice
in detail these vOluminOus pleadlngs, eN-
tending over two hundred pages, but at
the request of counsel proceed to settle the
points of law, necessary to final deterinl-
nation of the case 1t is first objected that
the bond sued on, if legally executed,
which is denied, isnevertheless voluntary
bond, without consideration, and therefore,
not binding on the obligOrs
This objection is based on the omission
in the Code of 1871, to require any other
bond from Sheriff, than his official bond,
provided for in 2l9. 1t is claimed that
the bond required in that section is the
only bond which the Sheriff was required or
even authorized to make, and that being
liable on this bond for taxes collected by
him for the State, rs was decided III
Matthews VS.. the State, 81 Miss, he is not
liable, nor are his suretis on the bond
executed specially in his character as Tax
collector. This position cannot be maln-
tanned without overruling at least six cases
decided by the Court in reference to Tax,
collectors bonds taken under the Code OF
1871.
In Byrne VS.. the State, 80 Miss, 6SS, a
Sheriff and his sureties on Il TaX-cOllectors
bond, executed by him under the Code OF
1871, were held liable for the State taxes
collected and not accounted for by him.
The same conclusion was reached as TO
county taxes in Taylor VS.. the State, 81
Miss, 20 In Lewenthall VS.. the State, 81
Miss, 645, the validity of n Sheriff's bond
as Tax-colleetor, was also fully recognized;
and such bond was held to be an official
bond from which the sureties could get
relief, as in other cases of official BONDS
under , 315 and 316 of the Code. In
French VS.. the State, 80 Miss, 7o9. this
Court held that under the Code of 1871, the
failure of the Sheriff to give TaX-collec-
tors bond was not q cause of forfeiture OF
his office under $40 of the Code, and at
the same time held that TaX-collectors
bonds were valid both tor State and county
taxes, and cited and rcaflirmed Byrne VS..
the State, supra.
In French VS.. the State, 50 Miss, G51, an
action on a TaX-celectors bond, given
under the Code of 1871, was defeated upon
the ground that it was improperly insti-
tuted, both the Court and the counsel
recognized its validity. The next case
in which the validity of these bonds
was contested in this Court, is Harris VS.
the State, 30 Miss, 30. In this case the
county of Rankin sued on the TaX-collec-
tors bond for balance of county taxes not
accounted for. The Sherfh's term com
menced on the first Monday in january, a.
D., 1874, and the bond was dated October
18th following. 1t was objected to the
action that the bond was given too late and
was moreover, voluntary, there being no
law authorizing or requiring it. rms
Court said 90 A careful perusal of chapter
% of the Code, clearly indicates the legisla-
tive will that the Sheriff as TaX-colector
should give bonds. Thus section 1928
directs suits on the TaX-collectors bonds
them. So section 1852 directs suit to be
brought on the collectors bonds against
principal and sureties for failure or
omission to collect the taxes. Whilst there
Is clear expression that bonds must be
given for the good conduct of the officer,
the code is silent as to the time and the
penalty. All other. particulars are pro-
vlded fol0 ~ 1t is impossible to
say within the purview and intendment
OF such legislation as this, that it was
illegal for Shelton (the Sheriff to have
executed the bond, and that the State
having participated in the illegal transac-
tl0n cannot maintain an action on it. I'M
the allusion in the statute was
to the bond for the indemnity of the State
and county. Shelton and his sureties so
understood it. So did those appointed by
law to accept and approve it. 1t was so |
understood and acted on throughout the |
State"
The Court then proceed to say: "Great |
strength is given to these views by section
1876 of the Code, which provides that when
a special tax may be levied for county pur-
poses, the Board of Supervisors NAV re-
quire the Collector to give bond tor the
faithful collection and payment of the
same" In James vs.. the State, 90 Miss,
og, this case is cited and confirmed. IN
me State VS.. Matthews, 81 Miss, 1.
winch is enormously supposed to give
'ountenance to the idea that Tax-coliect-
1rs bonds are invalid, it is said: at is
rue, as stated in the opinion in Harris VS..
Ihe State, that there is abundant evidence
n the Code of the legislative assumption
IL the fact that there was TaX-eoIlector's
lond, but there is no requirement by the
JOOe that TaX-collector's bond should he
mould be given, except in the case proyid-
"a for In section 1876" to secure the collec-
ion of special county tax.
we are asked now to disregard all these ,
ases-eXpress adjudicatiOns in some. and
clear recognition in the Others-Of fine
sSalty OF TaX-collectOr's bonds, because ,
mere IS no requirement of them i'm the |
Que OF 1871. In five of the above cases 1
ne validity OF the TaX-eOllector's bonds is ]
ecognlzed, Notwithstanding it is admitted {
lat there Is no provision in the Code of q
81 requiring their execution. We might n
. 80 Oh ehC uulhOIlly Ol IneSe decisions | :
! this Court in favor of the validity Of I
lese bonds, and on the maxim stare dec;sis. n
ut as they are assailed with great earnest g
ess and ability, we will proceed to state a
he reasons which place beyond successful il
lpeachment their validity. 1t has been s
lOwn in the quotations we have made [
ON Harris vs.. the State, and the State vs. (,
atthews, saPrd, that there is a plain re- o
gnltlon in the Code of TaX-coJIector's h
'nds for the security of State and countv "
Xess, notwithstanding there is no positive n
qulrement for their execution. But that Il
en- bonds may be given and that SHIFTS nm 81
EN- are directed to be instituted TO re- III
Yer defaleatiOns in State and countv nj
Nes are undeniably plain proyisions 6f +,
e Code. The only difference in the pro- el
slons or the Code between them and re
ler Official bonds, is that there is no nro- 9.
SION hiking their penalty and time of ey- 50
utlOh, anu no forfeiture of Office imposed 81
the sheriff for failure to execute Them I'll
neither the failure to make those nro, 90
DIVISIONS was the result of oversight ar IN
sign, cannot affect the force and validity TO
the enactments in the Code, 10 which NJ. da
We referred. These enaetments are in m
helent to COMPEL the execution Of tbeso m
nds as condition precedent TO tbe on i'm
heht OF the Office Of Sheriff and TaX- 81
lector, but they are ample to valilafe of
IN when voluntarily executed. Tbey It's
err 10 legal and valid, NOT 10 invaIi3 Ia,