State ex rel. County Commissioners v. Horner

Bartol, C. J., delivered the opinion of the Court. The question raised by the demurrer is the sufficiency of the declaration. This contains three counts upon the several bonds given by William Button, as collector of county taxes for the eleventh collection district of Baltimore county, in the years 1864, 1865 and 1866. The appellee is sued as one of the sureties in each of the bonds. Without setting out the declaration here at length, it will be sufficient to notice the points in which it is alleged -to be defective, they are as follows: 1st. Because it does not distinctly allege that Button had been appointed collector. 2d. It does not allege when he was so appointed. 3d. It does not allege when the levy in each year was made, whereas it ought to appear affirmatively that it was made at a time authorized and prescribed by law. 4th. In the first count it is alleged that the bond was given on the 5th day of April, 1864, whereas by the law as it then existed, the commissioners were required to make the levy on or before the first day of March, and to appoint the collectors on the first Tuesday of March. In the second and third counts the bonds are alleged to have been given, one on the 26th day of April, 1865, and the other on the 13th day of April, 1866, when it was the duty of the commissioners to make the levy on or before the 1st day of May, in each year, and to appoint the collectors on or before the first Tuesday in May, and the collector was required to give bond within ten [573] days from the date of appointment. Code, Art. 3, secs. 56, 65; Supplement to Code, p. 360, sec. 56, (Act of 1865, ch. 102;) and p. 361, sec. 65, (Act of 1865, ch. 96, sec. 1.) These alleged defects in the declaration are urged by the appellee as fatal on demurrer. They will be briefly examined. 1st. We think the appointment of Button as collector is sufficiently alleged. After setting out the making of the bond, its date and amount, it is averred that “ it was and is subject to a certain condition thereunder written in words and figures following, that is to say: The condition of the above obligation is such that if the above bound William Button (who has been appointed collector for the collection of county taxes fort he eleventh collection district of Baltimore county, and has accepted the same) shall well and faithfully execute his said office,” &c., &c. In our opinion this is a sufficient averment of the fact of his appointment. But the declaration further avers that the tax bills were duly placed in his hands “ as collector aforesaid ” for collection. The bonds themselves are produced in Court, with the declaration containing the recital of the fact of his appointment, which estops the obligors in the bond from denying the fact of such appointment as was decided in Milburn vs. The State, 1 Md., 12, and Billingslea vs. The State, 14 Md., 369. 2d. With respect to the omission to aver when Button was so appointed, and when the levies were made in each year; we think these furnish no good ground for demurrer. Several answers may be made to these objections. In the first place the declaration by apt and sufficient averments, states that the collector was duly appointed, that the levies were validly made, the tax bills duly placed in his hands lor collection, and that the sums of money severally specified came into his hands as collector. Now the legal intendment is that the County Commissioners acted according to law; that what was done was rightly done, without express averment to that effect, the contrary not appearing. Fridge vs. The State, 3 G. & J., 113, 114. But another and more conclusive answer to [574] these objections is that the statutory directions as to the time of making the levy and appointing the collector are directory only, with respect to the particular day on which the duty is to be performed. The statute imperatively requires the performance of the duty, but the designation of the time is not of the essence of the thing, nor restrictive of the power and jurisdiction of the County Commissioners, and their action will be legal and binding although done on some other day. We consider the case falls within the principles laid down in The State vs. County Commissioners, 29 Md., 517, and we refer to the opinion of the Court in that case and the authorities therein cited. (Decided 22d June, 1871.) In our judgment the declaration in this case is sufficient, and there was error in sustaining the demurrer. The judgment will therefore be reversed and the cause will be re- ' manded to the City Court, so that the parties may proceed therein. Judgment reversed.