State ex. rel. Mouton v. Guilbeau

The opinion of the Court was delivered by Bermudez, C. J. This is a suit against a sheriff as defaulting tax collector, and against his sureties. The defense by the defaulter’s legal representatives, he having died, is to the effect that he is entitled to be credited, 1st, with amounts due him by the State for necessary expenses and costs incurred by him in the collection of taxes; 2d, with a diminution on the ainount carried on the rolls for double and erroneous assessments and for amounts due by delinquents; and, 3d, with amounts paid by him iii tire treasury and not accounted for by the auditor. The sureties plead further, that they were discharged by the dereliction of the government, in consequence of whose laches their rights of subrogation to those of the State have been destroyed. From an adverse j udgment the defendants have appealed. They complain here that they were illegally deprived, by the ruling of the district judge, of the right of establishing the credits averred on behalf of Guilbeau, the alleged defaulter. The bill taken to the action of the judge excluding the proof offered, shows that it was pi’oposed to introduce in evidence an account for publication of delinquent tax sales in 1880, 1881 and 1882 due the Observer, a newspaper published under that name; a receipt of the clerk [719] of conrt for amount paid by G-uilbeau for recording sales of property adjudicated to the State; a receipt of the Observer for publication of tax sales in 1883; two checks on a bank to the order of the State treasurer. The evidence was ruled out “on the ground that compensation cannot be pleaded by a tax collector when sued for taxes collected by or chargeable to him. This would be practically to allow him to sue the State. The proper place to settle this was the auditor’s office.” It is urged that the relations existing between the State and a tax collector must be assimilated to those of principal and agent, and that, in the absence of adverse legislation, recburse must be had to the general provisions of the law on the subject of mandate. There can be no question as to the correctness of the proposition, but the law touching this matter does not authorize the agent to make any deductions. He is one and the same person with the principal. He must pay over what he has collected, and then claim reimbursement of the charges and expenses necessarily incurred by him in the execution of his mandate. The law on the subject, E. C. C. 3023, distinctly provides, as a rule, that the principal ought to reimburse the expenses and charges which the agent has incurred in the execution of his mandate, and pay his commission when one has been stipulated. The agent has a right to retain the same only when they are admitted or where they should clearly have been allowed. This is not such a case. The district judge well;says, however: “ The mode of ascertaining the indebtedness of a tax collector is very simple. He is charged with the sum total of the assessment rolls and blank licenses, and it is his duty to offset these by vouchers of payments to the State—delinquent lists, sales of property made for nonpayment of taxes and adjudicated to the State, and such blank licenses as he may not have issued. “ The revenue laws of the State fix the dates' at which his settlements shall be made, and if he fails to comply with those laws all presemptions are against him. * * * The State demands prompt payment of its dues, or a cleai showing of the reasons why not.” It may well be, and it is no doubt the case, that, in adjusting their accounts with the State, lax collectors are allowed to retain all just amounts to which they might be otherwise entitled; but where they have not been permitted to make such deductions they cannot look for relief to the judiciary, but must address themselves to another branch [720] of tlie government, which alone controls the funds in the treasury in the absence of special legislation. It is upon this principle that in a similar case, recently decided at Monroe, (State vs. Bradly) this court held that a sheriff and ex-officio tax collector is not entitled to deduct from amounts due the State for taxes and licenses collected by him the cost of deeds and copies charged to the State in cases of purchases of land sold for taxes and adjudicated to the State. The district judge was therefore right in excluding evidence to show cost of publication of tax sales. In justification of his refusal to admit the two checks in favor of the State treasurer, he says, in his reasons for judgment, that the amount of both had been placed to the credit of the collector in the auditor’s and treasurer’s statements. This saying is verified by the record. Such being the case, his exclusion of the checks, if erroneous, has worked no injury. The checks might have been admitted, the objection to them going to the effect and not to the admissibility.