Taylor v. LaFollette

McWhorter, Judge: K. J. Keadle was elected sheriff of Mingo County for the regular term of the office beginning January 1, 1897, gave bond and qualified and assumed the duties of said office and afterwards being thereto required by the county court of his county executed an additional bond under which bond said Keadle proceeded to receive and collect the tax, money, and levies of the year 1898, due the State and county, and thereby became legally indebted to the said county of Mingo and to the Auditor for the State, and the county court of said county deeming it proper to require still another new bond so notified said sheriff Keadle who executed a bond on the 14th day of August, 1899, with G. W. Taylor, J. E. Peck, Mary Taylor, S. J. Straten, and G. S. Buskirk as sureties, and on the same day said Keadle executed a bond for the school moneys that should thereafter come into his hands as such sheriff, with said G. W. Taylor, J. E. Peck, Mary Taylor, and others as sureties, on the 4th day of September, 1899, said Kea-dle as such sheriff entered into a written contract with J. E. Peck and G. W. Taylor (all the, sureties of both of- said bonds of August 14, 1899, being named in said contract as parties of the second part but signed only by Keadle, Peck and Taylor) — 480 — whereby it was agreed that “in consideration of the suretyship of the said parties of the second part.” The said Peck and Taylor were to have control and management of the sheriffalty of said county for which said “Second parties would be liable on condition that said Keadle should perform certain duties of said office and receive certain fees and emoluments therefor as specified. In January 1900, notice was given by his sureties on the bonds of August 14 to said Keadle that on the 25th of January, 1900, they would move the county court of Mingo County to release them as such sureties. Iveadle was granted until January 29, 1900, to obtain sureties on which day he having failed to furnish the required surety the county court made an order, releasing said sureties and demanding another bond and fixing the 8th day of February, 1900, when such bonds should be given, failing in which the court removed the said Keadle from the office of sheriff and on the 9th day of February the said court appointed said G-.W. Taylor to fill the vacancy for the unexpired term of said sheriff, and the said Taylor executed bond as such sheriff which was duly approved and entered upon the duties of his said office. On the 18th day of January, 1900, the Norfolk & Western Railway Co. paid into the treasury of the State among other moneys six thousand three dollars and seventeen cents for county purposes of Mingo County and three hundred and twenty-five dollars and three cents for road purposes; and the Pullman Car Co. on the same date, in like manner paid in the sum of forty-six dollars and eighty-five cents for such county purposes and two dollars and twenty-one cents for road purposes, said moneys being for the taxes assessed for 1899 under section 67, chapter 29, Code. It appears that Keadle as such sheriff at the time of such payment of said moneys into the treasury was indebted to the State on account of taxes collected by him in former years in large sump for which he was in default. The appellant (Auditor) contends that it was his right and duty conferred and imposed by law upon him to apply said moneys to said indebtedness for which said sheriff was in default, and that Keadle by letter of date January 19th directed it so applied, that indeed with said letter were two orders covering the amounts, without date. But which Keadle afterwards dated January 24, 1900. That before making such application said auditor was notified by said Peck and Taylor not to so apply said moneys to the payment of Kea481 die’s old indebtedness for which he was in default, but that it should bo applied to the taxes of-1899. Taylor as sheriff sued out of the circuit court of Kanawha County a mandamus nisi, requiring said auditor to' account to said Taylor for said sums of money so paid into the treasury, by issuing his_ proper warrant and draft upon the treasury of the State for said sums in favor of said sheriff Taylor, or by making application thereof to the payment of any State taxes due by said Taylor, sheriff, or in such manner as said auditor and said Taylor might agree, or to show cause if any he could why he should not do so. Auditor La Follette by his counsel demurred to the petition and moved to quash the mandamus nisi which demurrer and motion were overruled, and the auditor filed his answer and return to the mandamus nisi and thereupon plaintiffs moved the court to award the peremptory mandamus prayed for notwithstanding the said answer and return thereto and the matter being considered by the court the mandamus was made peremptory and the auditor required to account to said Taylor, sheriff, for the said moneys so paid into the treasury by making proper warrants and drafts upon the treasury therefor in favor of said Taylor or by making application thereof as in the mandamus nisi stated, ana it appearing to the court that the auditor in the matter in refusing to account to said Tajdor was acting in good faith to find out with whom said accounting should be had and payment made, it was ordered that each party pay his own costs and no statute fee be recovered, said La Follette, auditor, applied for and procured a writ of error to said judgment assigning the following errors: “That the court erred first, in overruling said demurrer and motion to quash; it appearing, upon the face of said petition and the exhibits therewith filed, that the said relator Taylor had fanned of the said Keadle, sheriff, the office aforesaid, wherefore he was disqualified to become sheriff for the unexpired term, and was not entitled to receive said moneys in any event, or to maintain said proceedings as such sheriff, or otherwise; and further for want of parties: because said Keadle was a necessary party to the proceedings, wherein was to be determined the disposition of said moneys. Also, in that said judgment required your petitioner to draw said warrants payable to said substituted sheriff or else credit said funds upon State taxes due from said substituted sheriff when, in fact, said taxes were received into the treasury during — 482 — the term, and paid to the credit of said Keadle, and before removal from office. Also, in that it denied to this respondent the right under the law to apply the moneys so due said Keadle, to the indebtedness due by him to the State. Also, in that it denied to the said Keadle, the right to make such application/’’ It is insisted that.Taylor was by reason of the contract with Keadle incapacitated under section 5, chapter 7, Code, for holding said office of sheriff. Does the question arise here? Would Taylor as sheriff in any event be entitled to control this fund even if eligible to the office ? As far as his disqualification, by reason of the illegal contract is concerned the statute applies as well to Keadle as to Taylor, applies to both the buyer and the seller, if the former is incapacitated thereby to take the office and exercise its duties the latter is equally incapacitated to continue in and perform its duties. These sums of money were paid into the treasury while Keadle was yet sheriff and some three weeks before the appointment and qualification of Taylor. That they should in- all good consicence have been applied to the taxes of 1899 there can be no question and being paid to the auditor as they were with his full knowledge of their source, he had no authority under the law as a discretionary power or otherwise to direct their application elsewhere than upon the taxes of 1899, without such direction from sheriff Keadle. The auditor claims that under section 67, chapter 29, Code, he.has a right to apply these payments to old indebtedness of the sheriff, liis default of former years. In State v. Wade, 15 W. Va. 524, at p. 535, Judge Green in speaking of the discretion of the auditor in making application of payments “so that it should go to the account, to which the convienence of the State at the time required it to go, and of which the auditor is always in a condition to judge” says “this, I understand, was the discretion intended to be conferred on the auditor; a discretion, the exercise of which could not possibly injure any set of sureties. But to construe this statute to authorize the auditor at his mere will and pleasure to apply a sum of money, paid on the taxes of one year, to the taxes of other years, so as to relieve one set of sureties from responsibility— and attach responsibility — to another set, would be to convert a statute, intended merely for the convenience of the State into a statute which would enable the auditor to do gross injustice to — 483 — some sureties, and to confer great pecuniary favors on others according to his pleasure. The law cannot be so interpreted. If this were its meaning its constitutionality would be, to say the least doubtful. But it cannot be so interpreted. In the Waid Case just cited payment was made into the treasury on January 26, 1870, by the sheriff of nearly three-fourths of the taxes of 1869, directions to the auditor to apply it on the taxes of 1869, yet the auditor directed the whole of it applied upon the taxes of 1867 and 1868 for which the sheriff was delinquent claiming the right to do so, it was held that “the auditor was bound when directed at the time of payment, to apply the whole of the payment to the taxes of 1869.” This language implies that in the absence of such direction from the sheriff at the time of payment, the auditor might have applied the payment as he attempted to do, to the defalcations of 1867 and 1868, which undoubtedly he could have done with a general payment made by the sheriff without direction as to its application unless when he (the auditor) received it he was aware that it was the proceeds of the taxes and levies of 1869, in wihch case the principles of equity and right would have required its application to the taxes of 1869. The appellee cites a part of sec. 681, Murphy on Official Bonds, to show that the money so paid cannot be so misappropriated, that taxes collected under a second bond applied to make good the default under a former bond of the same collector, but that section further says, “Although the law, when it falls to .its lot to appropriate payments, will not suffer the revenues received under one term to be applied to a defalcation incurred under another term, yet if the officer himself makes the misappropriation, and the money is received in good faith by the proper officer, the misappropriation cannot be avoided, and is binding on the sureties.” Appellee also cites sec. 637 Id. based on Porter v. Stanley, 47 Me. 515, where it is held that where the same person was collector in a town for several successive years and failed to pay over or account for a portion of the taxes committed to him the first year, moneys collected and paid over by him arising from the taxes committed in the subsequent years, cannot bo appropriated to make up the deficiency of the first year so as to affect the relative rights and liabilities of the sureties on his several bonds, without their consent.” And further, “A settlement made with him by the selectmen, in which such appropriations is at — 484 — tempted to be made, is inequitable and unauthorized, and does not bind the town or the sureties.” In the opinion by Tenney, C. J., it is said, “This does not appear to have been done at the request of William Stanley, (the collector) or by his consent any further than if it was right that it should be done so he would consent thereto. A consent so qualified in a case of that kind was not consent as the condition, “if it was right” was not fulfilled. The authority which comes nearest to sustaining the position of appellee that even Keadle when making the payment could not by his direction apply the payments to his former indebtedness is the case of U. S. v. January, 7 Cranch. 572, and that is treating of the application of payments made of current collections on former indebtedness of the collector by the officer recovering the same, and not by the collector. And the case of U. S. v. Eckford, 1 Howard, 250, where, on page 251, the court says: “We think the rule established by this Court in the case of U. S. v. January and Patterson, 7 Cranch, 572, is the true one. In that case the court says: “The debtor has the option if he thinks fit to exercise it and may direct the application of any particular payment at the time of making it. If he neglects to make the application, the creditor may make it; if he also neglects to apply the payment, the law will make the application/ But, the court adds, ‘A. majority of the court is of opinion that the rule adopted in ordinary cases is not applicable to the case where different sureties under distinct obligations are interested/ The treasury officers are the agents of the law. It regulates their duties, as it does the duties and rights of the collector and his sureties. The officers of the treasury cannot, by any exercise of their discretion, enlarge or restrict the obligations of the collector’s bonds. -Much less can they by the mere fact of keeping an account current, in which debits and credits are entered as they occur, and without any express appropriation of payments, affect the rights of sureties. The collector is a mere agent or trustee of the government. He holds the money he receives in trust, and is bound to pay it over to the government as the law requires. And in the faithful performance of this trust the sureties have a direct interest, and their rights cannot be disregarded. It is true, as argued, if the collector should misapply the public funds, his sureties are responsible, but this is not the question under consideration. The — 485 — collector does not misapply the funds in his hands, but pays them over to the government without any special direction as to their application. Can the treasury officers say under such circumstances that the funds currently received and paid over shall be appropriated in discharge of a defalcation which occurred long before the sureties were bound for the collector, and by such appropriation hold the sureties liable for the amount? The statement of the case is the best refutation of the argument. It is so unjust to the sureties, and so directly in conflict with the law and its policy that it requires but little consideration.” Tnese cases only refer to the misapplication of such payments (and it is misapplication) by the receiving officers of the government, but recognized all the way through the collector’s right to direct the application, however unjust it may be to the sureties. In the case of State v. Wade, cited, the case of Redfield v. Shaver, 50 Me. 37, is cited in support of the collector’s right to direct such payment while it is held that a collector of taxes when he paid the same into the treasury had a right to direct it to be applied to the taxes due from either of two years in which he had different sureties on his bond. That Sheriff Keadle was so interested in the matter of this proceeding as to be a necessary party ijhereto, it manifestly so appears from the record. Cross v. Railroad Co., 34 W. Va. 742; Armstrong v. County Court, 15 W. Va. 190: The question arises, can the appellee maintain this proceeding in his name as sheriff of Mingo County? Section 67, chapter 29, Code, provides: “That the taxes assessed for the last year of term of office of the sheriff shall be paid to or settled with the sheriff who was in office at the time the assessment was made.” The taxes so paid into the treasury in this case were assessed in the last year of the term of Keadle in said office and were also paid in while he was yet sheriff, paid to the auditor under the statute, whose duty it was to account to said sheriff therefor, and as has been seen, the sheriff had the right to direct its application to his indebtedness, however, inequitable such application may be as affecting his sureties, and while without such direction on the part of Keadle it would have been the plain duty of the auditor having as was the fact full knowledge of the source of its payment and on what accounts to have applied the same to the taxes of 1899. Such application as was made in this case may well be said — 486 — to be a bard ease, but as said by Judge Holt, in Cross v. R. R. Co., 34 W. Va., at page 747, “hard cases make bad law.” When we undertake to correct particular wrongs or present great hardships in special cases which can only be done by the violation of long established and well settled principles, the particular wrong would better go uncorrected. The wrong that results from the misapplication of these payments at the direction of Keadle is only disclosed incidentally and is not really in issue. If the money should be in this proceeding directed to be paid to G. W. Taylor, as sheriff of Mingo County, it would go to relieve the said sheriff Taylor and his sureties on his official bond, and might not go to any extent to the relief of the sureties of Keadle on his last bond. The peremptory mandamus should not have bee nawarded and the judgment of the circuit court is reversed and the petition dismissed. Reversed.