Birmingham state herald., 1897-05-20
MOBILE COUNTIES
 GREAT MUDDLE Office of Tax Collector by Law is
 Vacant.
THE PROBATE JUDGE CENsURED
For Failing to Comply With Legislative Instructions Regarding Said Matter-Atorney-
 Generals Opinion.

1 the liability below the figure set in the face of the paper
 The four papers were taken and ap- proved by the probate judge on April 10, 1897, as a compliance with the requisi- tion for new additional bond.
 He forwarded these papers to the state auditor to be filed in that office as re- quired by section 526 of the code of 1886. The auditor immediately referred the said papers to this department with the
 request for a ruling as to whether or not
 they were in such shape as to deserve
 the legal recognition which his filing
 would give them.
 On the 12th of April this department rendered written opinion to the auditor holding that these papers were not such bond as the law requires, and conse- quently that he would be justified in de- clining to file them in his office; where upon he declined to file them.
 So much as to the facts. I shall now take up your several interrogatories in l their order.
 Your first question is as follows:
 ''Whe' her the probate judge of Mobile
 county had any authority of law in giv- ing the notice to E. B. Lott, tax collector, which was issued on the 2d of December,
 1896, to require him to appear on the 17th of December, and show cause why he
 should mo-. increase his bond?" My reply to this question is that under sections 279, 280 and 2S1 of the code Q8S6)
 the probate judge had no au hority or
 warrant of law for the issuance of the
 citation in the shape in which he couched
 1t and sent it forth. The citation as is-
 sued was one to show cause why -he
 bond should not be increased in obedience
 Ito the finding of the grand jury. The
 statute authorizes no such conditional
 citation but is plain, to the effec: that
 upon the coming in of such report of the
 grand jury the tax collector must "be required by such judge of proba te to give
 an additional bond" Bruner vs. Bryan, 50 Ala p. 522
 ''WheIther the probate judge of Mobile county had any authority on the 17th of December, 1896, the day fixed to grant
 said Lott until January 2, 1897, to give such addi fonal bond"
 My reply to this question is that the
 probate judge did not have such author
 ity The language of section 2S2 of the
 code is plain and admits of no doubt be- ing as follows: Such officer must give
 such additional bond within ten days
 after the time specified in such requisl-
 tion; and failing to do so, he vacates his office, and the officer making the requisi-
 tion must at once certify the same to the
 appoin ing power, by whom the vacancy
 must be filed" From the 17th of De- cember to the 7th of January was more
 than the ten days allowed by law The ten days fixed by law expired at mid night on December 27, 1S96 The 1egisla-
 ture, in it's discretion as he supreme law
 making power in the slate, has fixed this 1 limitation and no power short of the leg islature is endowed with the authoriy y to accomplish it1 alteration or extension.
 The statute must be particularly and ex- actly followed throughou.. Casky, sher-
 tiff, vs the state of Alabama, Ala, 193. The probate judge was entirely without authority to either enlarge or diminish
 the space of dime alloted by law in this
 regard. The statute is reasonable. The legislative mind doubtless being inn
 pressed with the hazard incident to al-
 lowing public officials to continue in office beyond the reasonable limit of len days after the grand jury's finding touching
 thg insufiiciency of the official bond
 The third question is as follows:
 .a,Whether on the 7th of January 1897, the said probate judge had authority to
 give Lott until January 16, 1897, to make such bond?"
 It follows as corolary from what has
 been said last above that the answer to this question must be that the probate | judge had no such authority. | The fourth question is as follows: "Whether the probate judge of Mobile county had authority to approve the four papers purporting to be bonds as the official bond of said Lott under the pro- ceedings instituted by Christopher Burke?"
 The reply to this question is that he had not the authority to approve the four bonds. There is no more excuse for talk ing four separate bonds when an addi- | tional bond is required under the statute than there would be for taking such a nest of bonds instead of the one statu- | tory bond required of the tax collector in | the first instance upon his induction into office after election.
 | The fifth question is as follows: Whether person becoming a surety upon the bond of a tax collector can limit his liability thereon by writing hesamount opposite his name that he is willing to stand for, as shown by the bonds herewith submitted; and whether an attempt to so limit his liability does or does not impair the security of the bond?"
 Replying to the first half of this in- terrogatory, will say person cannot successfully limit his liability upon an official bond by annexing after his sigma ture such memoranda or addInda as you describe. Such external daclara- tions are futile and wholly unavailable to accomplish the desired purpose, and the express liability contained in the bond itself cannot be thus restricted.
 Murfree on official bonds, section 27. Cordray vs. State, 55 Texas, 14O. Replying to the latter part of this to limit the liability upon the bond does
 impair the security which would be af- forded by a perfect bond. The state
 would take these Gf at alp intending to
 assert it's legal right to exact the full
 penalty named in the face from each
 surety, while the sureties have added these limitations intending to maintain
 that they are only partially bound, doubtless thinking that they have suc- eessfully set fixed Limitations as to the utmost that may befall them. This lack of harmony between the state and it's sureties furnishes abundant and in- viting room for uncertainty, controversy, | and endless litigation. For th,s reason, ], If for no other these honds ought to be refused. s5 t..