Curry v. County of Gila

STREET, C. J. 1. Gila County, the appellee herein, brought an action in the justice court against the appellants herein, and suffered a judgment in said court, from which it appealed to the district court of Gila County, and there obtained a judgment against the appellants. The action was brought to recover on a bond in which M. E. Curry as principal, and Al. Despain and E. S. Conway as sureties, bound themselves unto the territory of Arizona in the penal sum of $191.84. The bond was made a part of the complaint. The condition of the bond is as follows: “The condition of the above obligation is such that whereas, J. H. Thompson, the county assessor in and for Gila County, territory of Arizona, on the 15th day of April, 1895, did list and assess to the above-bound principal, M. E. Curry, certain personal property within said county, owned and controlled by the above-bound principal, at its full cash value, to wit, the sum of $2,398, for taxes for the year 1895; and it appearing to said assessor that said principal did not own real property within said county of sufficient value in said assessor’s judgment to pay the taxes on [52] both real property and personal property so listed and assessed; and whereas, said principal neglecting and refusing, on demand having been made by said assessor, to pay the taxes on said personal property so assessed for the year 1895, said assessor did immediately, to wit, on the 15th day of April, 1895, proceed to collect said taxes by seizure of sufficient of the personal property so listed and assessed, in the manner prescribed by paragraph 2650, Rev. Stats. Ariz.; and whereas, said principal desiring to have said personal property released from such seizure, gave this, his bond, for the release thereof, whereupon the said personal property was released from seizure by said assessor to said principal: Now, if the said M. E. Curry shall well and truly pay all sums due for taxes or to become due on said personal property so listed and assessed for the year 1895, to the tax-collector of Gila County, territory of Arizona, when the same shall be payable as prescribed by law, and before they become delinquent, then this obligation shall be void. It is expressly agreed by both principal and sureties that if demand be made by the tax-collector upon the. principal at any time after said taxes become payable, that the principal will immediately pay said taxes, or, failing to pay the same, action may be immediately commenced upon this bond for the collection of said taxes. It is further agreed that if the said taxes be not paid before they become delinquent, that action may be immediately commenced upon this bond against said principal and sureties without any demand whatever.” The bond was given in compliance with the provision of paragraph 2650 of the Revised Statutes of Arizona, which provides that the county assessor, when he assesses the. property of any person who does not own real estate within the county of sufficient value to pay the taxes on both his real and personal property, shall proceed immediately to collect the taxes on the personal property so assessed; and if such person shall neglect or refuse to pay such taxes, the assessor shall seize sufficient personal property to satisfy the taxes and costs, and shall, after notice, sell the same at public auction in sufficient quantities to pay the taxes and expenses incurred: provided that, if the owner of the property seized shall give bond with sufficient security, to be approved by the assessor, and in an amount sufficient to recover the amount of taxes due and the costs incident to the seizure, the said property shall [53] be then released. Said section also provides that the assessor shall be governed as to the amount of taxes to be by him collected in this manner by the territorial and county rate of the previous year. . A demurrer was filed by the defendants to the complaint, and overruled by the court, in which was raised the question that Gila County was not the proper party plaintiff, and that the suit should have been brought in the name of the territory of Arizona, the territory being the obligee named in the bond. A further question raised by the bill of exceptions is upon'the fact that Curry made a tender to the tax-collector some months after the bond had been delivered to the assessor, and during the taxpaying time for that year, of a certain amount of taxes which he claimed was the basis of his assessment; and the tax-collector refused to take the amount so tendered because not being the full amount of taxes due as. shown by the duplicate assessment-roll as fixed by the board of equalization. 2. Upon the question that the territory should have been the party plaintiff instead of Gila County, paragraph 680 of the Revised Statutes of Arizona provides that “every action shall be prosecuted in the name of the real party in interest,” which was amended by act No. 22 of the Session Laws of 1893 by adding a proviso, but not in any way affecting this question. The only pretense upon the part of the appellants that the territory had any interest in the cause of action is that $17.98 of the amount sued for belonged to the territory. The court, in Territory v. Bashford, 2 Ariz. 246, 12 Pac. 671, 672, has decided that the county is a proper party to bring an action where it is interested in the funds sued for, although the territory may have some interest likewise In the funds. The collection of taxes is a county function, and the duty of such collection is relegated to the counties. After the taxes are collected it is then the duty of the county to pay over a certain per cent thereof to the territorial treasurer; but nowhere under our revenue system is it made the duty of the territory to collect the taxes. The complaint, and bond, which is a part of the complaint, clearly show that the bond was given for the benefit and use of the county in the exercise of its function of collecting taxes for 1895. Although the bond was executed to the territory of Arizona, it was delivered to the tax-collector for the use and benefit of the county of Gila. Had the [54] complaint contained an allegation that the bond was given for the use of the county of Gila, it could not have been pretended that a demurrer would lie, or that the county had not a right to sue on the bond; but the complaint, taken with the statute under which the bond was given, clearly shows the purpose of the bond and the interest of the county. People v. Haggin, 57 Cal. 586; Mendocino County v. Lamar, 30 Cal. 628; Sacramento County v. Bird, 31 Cal. 72; Mendocino County v. Morris, 32 Cal. 145. An answer to the second question raised by the appellants is clearly made by the terms of the bond and the provisions of the statute under which the bond was drawn, for it is the provision of the statute that such bonds shall be in an amount sufficient to cover the amount of the taxes. This bond provides that the said Curry shall well and truly pay all sums due for taxes or to become due on said personal property so listed and assessed for the year 1895 to the tax-collector of Gila County, territory of Arizona, when the same shall be payable as prescribed by law, and before they become delinquent. It is true that for the purpose of seizure and sale the amount to be collected in such cases is regulated by the rate of the preceding year, for the reason that the rate for the current year was not then established by the board of equalization. Such provision, however, is not a release, nor intended to be a release, of the person owning property, and who has suffered a seizure, from payment of taxes in such amount as may be established by the board of equalization, and levied for the current year. It was clearly the duty of Curry, as principal on the bond, to pay the tax-collector the amount of the taxes assessed against the particular stock released under the bond as the same appeared against him on the duplicate assessment-roll. To have fully discharged his obligation and that of his sureties on the bond, he should have paid the same. The judgment of the district court of Gila County is affirmed. Sloan, J., Davis, J., and Doan, J.,'concur.