Opinion
01-01-1832
The Auditor & c. v. Dryden and Another; Same v. Same and Others
The attorney general, for the appellant. Johnson, for the appellees.
[Syllabus Material]
Samuel Dryden was appointed clerk of the county court of Kanawha on the 11th May 1812, and thereupon, with Andrew Donally his surety, executed an official bond, payable to the governor for the time being and his successors, in the penalty of 3000 dollars, with condition, " that he should duly and faithfully execute his said office, and should not remove or carry, or suffer to be removed or carried, out of the county aforesaid, the records or papers of the said court, or any part thereof, except in cases allowed by law."
The same Samuel Dryden was also appointed clerk of the circuit court of Kanawha, on the 1st May 1812, and with Andrew Donally, John Reynolds and David Ruffner, his sureties, executed an official bond to the governor for the time being and his successors, in the penalty of 10,000 dollars, with condition " that he should duly and faithfully perform the duties of his said office."
In the years 1818, '19, '20, and '21, Dryden, as clerk of the county court, collected and received the public taxes, upon houses of private entertainment, on merchants' licenses, and on law process of the county court, (which taxes the laws made it the duty of the clerks of the county courts, respectively, to collect and account for to the treasury) to the amount of 1043 dollars, which he failed to account for and pay into the treasury.
And in the years 1819, '20 and '21, as clerk of the circuit court, he also collected and received the public taxes on law process of the circuit court (which the laws made it the duty of the clerks of the circuit courts, respectively, to collect and account for to the treasury) to the amount of 742 dollars, which also he failed to account for and pay into the treasury.
The auditor of public accounts made two motions in the general court, on behalf of the commonwealth, at November term 1828 -- the one against Dryden, as clerk of the county court, and Donally his surety in his official bond for his due and faithful execution of that office, for 3000 dollars the penalty of the bond, forfeited, as he alleged, by Dryden's breach of the condition, in failing to account for and pay into the treasury, the sum of 1043 dollars of taxes, by him collected and received as clerk of the county court: the other, against Dryden, as clerk of the circuit court, and Donally, Reynolds and Ruffner, his sureties in his official bond as clerk of the circuit court, for 10,000 dollars the penalty of this bond, forfeited, as he alleged, by Dryden's failure to account for and pay into the treasury, the sum of 772 dollars, collected and received by him for and on account of taxes on law process of the circuit court.
To the first motion, two objections were made by the defendants; 1. that the condition of the bond of Dryden as clerk of the county court, did not extend to the default complained of, that condition relating only to the duties of the office properly clerical; and 2. that the court had no jurisdiction of the case by way of motion. And to the other motion, the same two objections, mutatis mutandis, were made by the defendants therein, and a third, namely, that the bond executed by Dryden as clerk of the circuit court was not a good statutory bond, there being no statute authorizing the taking of it, or the proceeding upon it.
The general court held, that the condition of neither bond extended to the defaults complained of, and that the defendants in the motions, respectively, were no wise bound by the bonds for Dryden's faithful collection, accounting for and paying into the treasury, the public taxes by him collected and received; and for that reason, without giving any opinion on the other objections, overruled both motions, and gave judgments for the defendants.
From these judgments the attorney general, on behalf of the auditor, appealed to this court.
Affirmed.
The attorney general, for the appellant.
Johnson, for the appellees.
I. The principal question was, Whether the official bonds of the clerks of the county and circuit courts, according to the statutes existing at the time these bonds were executed, were a security for the due collection of public taxes, which the clerks, as clerks, were required by law to collect and account for? This question depended on the construction and effect of the several statutes relating to the subject; namely, the statute of 1792, Rev. Code of 1794, ch. 70, § 3, Pleasants' edi. p. 94, 5, requiring official bonds of the clerks of county courts; the statute of 1792, Id. ch. 66, § 13, p. 75, requiring official bonds of the clerks of the district courts; the statute of 1808, Pleasants' collection of public acts, [*] ch. 120, § 12, p. 152, and of 1809, Id. Supplement, ch. 6, § 6, p. 13, requiring official bonds of the clerks of the circuit courts; the statute of 1820-21, ch. 4, § 4, Sess. Acts, p. 8, requiring the clerks of courts to give bond with surety for the due collecting and accounting for the public taxes which the laws make it their duty to collect; and the statutes making it the duty of the clerks of the county courts, to collect the public taxes on merchants' licenses & c. and on law process of those courts; and the duty of the clerks of the circuit courts, to collect the taxes on law process of the same; 2 Rev. Code of 1819, ch. 185, § 1, 12, 16, 17, pp. 41, 3, 4. In the argument of the point, all the legislation of the country any way relating to the subject, from a very early period, was referred to, and very minutely examined.
II. The second question discussed at the bar, was, Whether the bond which Dryden gave as clerk of the circuit court, was a good statutory bond? Whether there was any statute which required or authorized any such bond to be taken? A question which depended on the construction of the two acts of 1808 and 1809, above cited, requiring official bonds of the clerks of the circuit courts.
III. A third point, very earnestly debated at the bar, was, Whether any remedy by motion at the suit of the auditor, was given on such official bonds as those in question? bonds which may be put in suit at the relation of any individual injured? The statute 2 Rev. Code, ch. 189, § 4, p. 50, provides, that " it shall and may be lawful for the general court, to give judgment with costs, at the motion of the auditor, on ten days previous notice, against any person or persons indebted to the commonwealth, by bond or other specialty, whether the same be taken in the name of the governor or treasurer, or any other person acting in a public character for or on behalf of the commonwealth, and also to give judgment for all bills of exchange and notes, and also for the penalty of all bonds entered into by any person or persons, conditioned for the rendering accounts or other duties." The attorney general insisted, that the summary remedy was given by this statute, upon all bonds whatever, where the commonwealth was injured by the breach of the condition thereof, though a remedy by action of debt on the bonds, lay also at the relation of individuals injured by breach of the condition. Johnson contended, that the remedy by motion on behalf of the commonwealth, lay only on such bonds wherein she alone was interested; for instance, he said, no motion could be maintained by the auditor, on the bond of an executor or administrator of a public debtor, to charge the executor or administrator and his sureties, for a devastavit. On all such bonds, in which individuals as well as the commonwealth might be interested, the commonwealth, if injured by breach of the condition, must, like individuals, proceed by action of debt.
CARR, J. BROOKE, J. TUCKER, P. Absent Cabell, J.
OPINION
CARR, J. BROOKE, J. TUCKER, P.
Upon the argument, I was a good deal inclined to think, that these judgments were erroneous; but an attentive and minute examination of the various laws on the subject, for fifty years back, has changed my first impression. Various points of objection, were discussed at the bar: I shall confine myself to that on which the cases were decided by the general court. The clerks of courts were made collectors of the taxes on ordinary licences and various kinds of law process, as early as 1769 (8 Hen. stat. at large, p. 345,) and were to account for them half yearly to the treasurer. That statute, after enumerating taxes to be collected by the sheriffs, inspectors of tobacco, and clerks, enacts, that if such sheriffs, clerks, or inspectors, shall fail to account and pay & c. it shall be lawful for the general court or court of the county where they reside, upon motion and ten days notice, to give judgment against them and their sureties respectively & c. But, at this time, the clerks gave no official bond; the term sureties, therefore, could not apply to them. In 1777 (9 Id. 350, 362,) the clerks were made collectors of the taxes on ordinary and marriage licences & c. and they were to account and pay half yearly; and for failing to account they were to forfeit # 500. and for failing to pay the money (having accounted) they should be proceeded against as delinquent sheriffs. Then the act subjects delinquent sheriffs to a judgment against them and their sureties & c. Here again we see, that though clerks are subjected in like manner as sheriffs, there could only be a recovery against them individually, for as yet they gave no official bond. In 1784, an act passed changing materially the situation of clerks; 11 Id. p. 464. The preamble states, that many inconveniences had arisen from their residing out of their counties, and the permission given them by some county courts, to remove the records without the county & c. to correct which evils, the statute prescribes the form of the oath, which every clerk thereafter admitted into office should take, and also enacts that every county court clerk shall, on his appointment, give bond and security, in the sum of 3000 dollars, with condition for the due and faithful execution of his office, and that he will not carry the records out of his county, except in cases allowed by law & c. We see here, that no part of the mischiefs to be corrected by this law, was a failure of the clerks to pay up the taxes of which they had been made collectors. Nor does the condition of the bond, nor the words of the oath, point at all towards those taxes. This is pretty strong to shew, that the legislature had not that subject at all in view in passing this law. But there is still stronger evidence, that, instead of looking to this bond, they looked distinctly to another manner of correcting the delinquencies of clerks, as collectors of the revenue. In an act passed at the same session (Id. pp. 378, 9,) the clerks are made collectors of taxes on law process & c., are allowed five per cent. for collecting, accounting for and paying those taxes into the treasury; are required to account and pay them twice a year, and on failure, are subjected to the forfeiture of all their commissions, and also to suspension from their office of clerk, until such payment be made. There is another conclusive reason to shew, that the bond of office was not taken as a security against these failures: that bond was not to be given by any clerk then in office, but only by those subsequently appointed; and as they held their offices during good behaviour, such new appointments would only be made (in the general) as the then incumbents should die; so that, for a length of time, a great majority of the clerks would consist of those who had given no bond of office. To this majority, the law could not apply, and to the minority it would not; for we could never suppose, that the legislature meant, that some of the public collectors should be subjected in one way and some in another. I might follow the series down to 1820, and shew that in all the subsequent tax laws, and different editions, the same form of bond and oath has been prescribed for clerks, and the like penalties for failures to pay taxes collected by them; the laws always looking to different methods, for protection against delinquencies as clerks, and delinquencies as revenue officers. It is a very strong fact too, in proof of the general understanding of these laws, and practice under them, that this is the first attempt ever made, to subject the sureties bound in the official bond of a clerk to a recovery for his failure to account for and pay the taxes collected by him. The act of 1820, shews that the legislative attention was at length called to the danger of suffering clerks to hold so much of the public money, without giving bond and surety for the payment of it; and it then remedied the evil. I am for affirming the judgments.
BROOKE, J. I am of the same opinion.
TUCKER, P. I am also of opinion, that there is no error in the judgments of the general court overruling the motions of the auditor in these cases: I think the judgments right, and for the reason given by the court.
The bonds on which these motions were made, were not taken under the act of 1820, ch. 4, which requires the clerks of the circuit and inferiour courts to execute bond with surety for the faithful accounting for and payment of the taxes on law process, ordinary licences and other public monies. They are founded on the general official bonds of the clerk. Such bonds were first required of the clerks of the prescribed county courts by the act of 1784, 11 Hen. stat. at large, p. 465, and required by all the subsequent statutes, contained in the several revisals, in relation to the office and duties of clerks. By these acts it is ordained, that every clerk shall enter into bond with condition for the due and faithful execution of his office, and that he will not permit the records to be removed out of the county except in cases allowed by law. And it is contended, that these words embrace every description of official duty; that they comprehend not only such official duties as then existed, but such as might from time to time be superadded; and that the collection and payment of taxes on law process & c. is as much an official duty as any other imposed upon the officer. These positions cannot be denied as general propositions. The terms are certainly broad enough to comprehend that case at bar, unless it can be shewn, by reasonable deduction, that the language, however broad, was not employed in this extended signification. This, I think, may be done.
When a statute of the legislature requires the execution of a bond, and prescribes its terms or its character, the interpretation of the instrument is in fact the interpretation of the statute itself. The party who executes it, cannot deny that it should have the interpretation which the legislature designed: and a fortiori, the sovereign power, who prescribed it, cannot fairly extend it to cases which were obviously not intended to be embraced by its provisions. However broad then those provisions, if it shall apppear, that the legislature did not intend the bond prescribed, to embrace a particular case, it will be construed not to embrace it: for the true construction of the statutes gives the fair interpretation of the bond. We shall then have occasion to look into our course of legislation, to arrive at just conclusions in this matter. It is not my purpose, however, to go minutely into them, but to refer only to certain general and notorious principles of our legislation, which cannot have escaped the most negligent observer.
The system of requiring security from public collectors, was very early established in the administration of our government. To go no farther back than 1705, we find that sheriffs, in whom was vested the power of collecting the public levies, were also required to give a separate bond with surety, for the due performance of that duty. 3 Hen. stat. at large, p. 264. But this prudential measure was not more ancient than the distinction observed, and I think uninterruptedly adhered to, between what I will call the revenue bond, and the official bond. The sheriff was an officer not less known to the common law, in his connexion with the administration of justice, than the clerk, and not more known, I believe, in the collection of the revenues of the state. This duty was imposed upon him by statute of early date, as the collection of certain taxes has been imposed upon the clerk by some more recent. Moreover, the sheriff, before he had been invested with the powers and duties of a collector, had been required by statute to enter into a general bond like this of the clerk, for the true and faithful performance of his office. 1705, ch. 3, Id. p. 247. Yet at the very same session, when it was declared that the sheriffs should be the collectors of the public levies, it was provided, that he should enter into bond with two sureties, in double the amount of the public and county levies, with condition to collect and pay them & c. Here then is a clear legislative exposition, more than 125 years ago, that a bond for the true and faithful performance of the sheriff's office, was not deemed to comprehend the collection and faithful payment of the public taxes, though this duty was imposed on the sheriff ex officio. Whether the words might embrace them or not, the legislature shewed, by a simultaneous act, that they did not use them in any such sense. And as words are but the signs of ideas, and our business is with the ideas and not with the words, it matters not what language is used, if we can only certainly learn in what sense it is used.
The distinction I have adverted to as having been observed between the revenue bond and the official bond given by the sheriff, runs through our subsequent legislation in relation to that officer. See 5 Hen. stat. at large, p. 516; 6 Id. pp. 464, 482, 483; 7 Id. pp. 11, 79; 8 Id. p. 39; 9 Id. pp. 67, 222, 357; 10 Id. pp. 167, 253, 506; 11 Id. 93, 168. In all these acts, distinct bonds are scrupulously required, with condition to collect and pay over taxes, notwithstanding the official bond, regularly entered into by the sheriff for the faithful performance of his officer. At the revisal of 1792, the distinction is broadly marked, by the consolidation and juxtaposition of the various statutory provisions before prevailing in relation to this matter. In the act concerning sheriffs, Rev. Code of 1794, ch. 80, § 8, 9, 10; Pleasants' edi. p. 121, it is provided, that the sheriff shall give three bonds; one, for duly collecting and accounting for the public taxes; one, for duly collecting all levies, and also all fines & c. due to the commonwealth; and one for collecting and paying officers' fees, executing and returning process, paying all money received on process, and generally for the faithful performance of his office; and in the act concerning county levies, Id. ch. 134, § 10, p. 252, the county courts are authorized to appoint the sheriff, or any other person, collector; taking a fourth bond for the faithful collection and payment of the county levies: thus clearly evincing, that the official bond was not designed to embrace the collection of taxes and public dues.
Another feature of the system is to be traced in some of these statutes, and is worthy of observation: the provision requiring the official bonds to be recorded in the records of the county, 3 Hen. stat. at large, p. 247, and the revenue bonds to be certified to the auditor of public accounts. The official bonds are not required to be so certified, because the treasury had no concern with them; but the revenue bonds were to be so certified, that the officers of the government might know against whom to move, and be in possession also of the evidence with which to charge them, before the general court.
It is this view of the systematic distinction taken by the legislature, between official and revenue bonds, with which every one at all conversant with public affairs is familiar, that satisfies my mind, that the offical bond of the clerk was not designed to cover his collections of taxes. This opinion is strongly fortified by the first act which required a bond from the clerk. In May 1784, the act passed imposing taxes on law process, and requiring the clerks to collect them. No bond was then required of the clerk, but the payment was injoined under the penalties of loss of commission and suspension from office. In October 1784, bond was first required from the clerks of the county courts; but the preamble shews, that it was not so required with a view to secure accountability for the revenue collected but to secure the records from removal and destruction, and to ensure the faithful discharge of the ordinary official duties. Moreover, though the sheriff's bond for revenue, was directed to be certified to the auditor, whose business was with the revenue, this bond was directed to be transmitted to the clerk of the council, merely for safe keeping.
The contemporary exposition of this act, and of the bond to which it gave rise, is irresistibly to be inferred, if (as it was confidently alleged in the argument) this is the first case, in which a motion has been ever attempted to be sustained, upon the ground that the clerk's official bond embraced the duty of collecting and paying the taxes collected by him. It can scarcely be possible, that no instance of default has ever before occurred. Hence I infer the universal understanding that the bond did not comprehend the case. Accordingly, in 1820, an act, requiring a revenue bond to be given by every clerk, was passed by the legislature. This, though not authoritative, is pregnant evidence of what the law was understood to be. It is to my mind conclusive evidence of the light in which it was viewed, and always had been viewed, by the intelligent and vigilant officers of the auditor's department. It is well known, that most of the salutary provisions enacted on the subject of the revenue, have been suggested by them. Their situation brings them acquainted with the defects of the laws, and their sagacity suggests the remedy. Such was, probably, the case in relation to the act of 1820: the auditor found the former law defective, and suggested an effectual remedy to the proper authority. This is much better than straining to extend the operation of a statute beyond its obvious design.
Judgments affirmed.
[*]This book is commonly called the 2nd volume of the Old Revised Code.