State of South Carolina vs. John B. Odom and others.
1. Where the Commissioners of the Roads adopted a resolution assessing a certain per cent, on all the taxable inhabitants of the District, and authorising the Tax Collector to collect the same, without indicating a particular sum to be collected, it was held sufficient.
2. It is not necessary that each inhabitant should be assessed a certain sum by the Commissioners themselves.
3. The Tax Collector is bound to pursue the directions of the Act itself, which prescribes, specifically enough, his duty as to the mode of making the collections.
4. Where the Clerk and Treasurer of the Board, verbally informed the Tax Collector that he was required to collect twenty-five instead of twenty per cent, as directed by the resolution of the Board, and the Collector proceeded to act under the authority of the order, without tailing any exception to the mode of service, it was held by the Court, in an action against the securities, for the default of the Tax Collector, that they were liable to the extent that he was, under the true authority of the Commissioners.
Before Butler, J., Barnioell, October Term, 1842.
Report. These were actions of debt brought by the Commissioners of Roads in the name of the State, against the securities of-Walker, on his penal bond as Tax Collector of Barnwell District. There were five separate suits.
*264On the 12th of August, 1839, the Commissioners of Roads adopted the following resolution: — “ Resolved, That the sum of twenty per cent, be assessed on all the taxable inhabitants of the District, and that the Tax Collector be authorised and required to collect the same, and to have the same to render to the Board at its next meeting.” .
In pursuance of this order, the Clerk and Treasurer of the Board was instructed to give the necessary information to the Tax Collector. The Clerk, Wm. F. Peyton, who was sworn as a witness, said that he informed the Tax Collector, verbally, that he, the Collector, was required by the Board to collect 25 per cent, on the general tax of each taxable inhabitant.
The general tax for 1839, was $6,561 21 cents, as appeared by the tax return of that year; the assessment would be certain by calculating 20 per cent, on that sum ; as much so as if a particular sum had been determined •on. The sum to be collected from each individual would have been the same, whether a gross sum had been assessed by the Board, or a per cent, on a particular amount. The witness, Peyton, said that the Collector had paid to the Board about $830, and when he did so he said that he would pay the balance, which, however, he never did, but left the State without a final settlement.
The resolution of the Board was not very definite, nor was the manner of its communication to the Collector such as should have been pursued. As an evidence of the irregularity, (and, indeed, impropriety,) of such loose proceeding, the Clerk made a mistake, and required the Tax Collector to collect tioenty-jive, instead of twenty per cent.; and it is probable that twenty-five and not twenty per cent, was actually collected.
But, in fact, the Tax Collector had a wárrant to collect but twenty per cent., and all beyond that was extortion. The Tax Collector, however, took no exception to the mode of proceeding by the Board, but went on to act under their order. He not only acquiesced in the mode of service on him, of the resolution of the Board, but he acted under it — and if he did so in part, I thought it was more than probable that he had done so in the whole, and that at least he was liable to the Commissioners for the amount of twenty *265per cent, on the general tax for the last year, and interest on that amount from the time when he should have paid it — which was when he was required to return into the Treasury the amount of the general taxes, to wit: in June. The sum thus calculated, would have been $1,312 22 cts. with interest from June, 1840, and $830 deducted from this amount, was the sum found by the jury — and to that extent, at least, I thought the defendants were liable, and verdicts were accordingly found.
The defendants moved in the Court of Appeals, for non-suits, on the following grounds :
1. Because the Board of Commissioners of Roads made no assessment of the amount which the Tax Collector was required to collect.
2. Because the supposed assessment was not made according to law.
3. Because the Tax Collector was not legally authorised or required to collect the money claimed by the plaintiff.
4. Because there was no evidence that the Tax Collector did collect the money in question; and
For a neio trial,
1. Because the declarations of John P. Walker ought not to have been received in evidence; and
2. Because the verdicts are contrary to law and evidence.
Patterson, for the motion.
By the Act of the Legislature under which the Commissioners acted, they are required to make the assessment on the last general tax. Their resolution does not inform us on what basis they made the assessment. The Board should be'held to the letter of the law, and in such cases sureties should not be dealt with strictly. When the Collector received notice did not appear, whereas he ought to have had three months notice of the amount to be assessed. The Commissioners must make the assessment themselves, and furnish the Collector with a list. The evidence was not conclusive as to the amount collected. Walker’s declarations were not competent.
Bellinger, contra.
The breach assigned, was a collection and a failure to pay over. The Tax Collector had autho*266ri ty whi cli was enough for him. Mr. B. cited the Treasurers vs. Bates, 2 Bailey, 363, as to the rule for damages. Cheves Rep. 71. An assessment is the amount, or the mode of ascertaining it.
Curia, per
Butler, J.
By the 18th section of the Act of 1825, 9 Statutes at Large, 563, the Commissioners of Roads have power to make assessments on the inhabitants of their Districts or Parishes, for the purpose of making repairs on bridges and highways, Ac., with a restriction that such assessments are to be made upon the amount of the last general tax. And by the next section, the Tax Collectors of such Districts and Parishes are required to furnish to the Commissioners the amount of the lastgeneral tax; and when the assessment is made, it is their duty to collect the taxes imposed in proportion to the last general tax aforesaid. The Board must have reference to the amount of the last general tax, for the purpose of making correct estimates as to the means of raising any sum of money that may be deemed requisite to repair roads and bridges. If any particular sum has been determined on, it can be raised by a certain per cent. The amount to be collected must be determined on, not by any prospective conjecture of the taxes to be collected, for that would be uncertain and might lead to abuse; the Board might conclude that the coming in amount would be greater than the last, and might make an unreasonable assessment. It is said the Board is not at liberty to make the assessment so as to leave it in the power of the Tax Collector to ascertain and collect the sum assessed, by a certain per cent., but that each inhabitant should be assessed a certain sum by the Commissioners themselves. This would be an extremely tedious and inconvenient mode of proceeding, and might lead to mistakes and unsatisfactory results. It is certainly not the usual mode of proceeding. The resolution of the Board was, “that twenty per cent, be assessed on all the taxable inhabitants of the said District.” This being the general authority of the Tax Collector, he is bound to pursue the directions of the Act itself, which prescribes specifically enough his duty as to the mode of making the collections. For so far as it regards the sum *267to be collected, that must be indicated by the Board; but so far as it regards the mode, and the proportion to be taken from each, he must proceed according to the Act, and his own information as Tax Collector. He will not be at liberty to collect more than 20 per cent, from each individual. That restriction will indicate the proportion by which the result is attained, and every citizen must take care that no more than that proportion should be collected. His own vigilance is always a better security than the honesty of the officer. For if the officer had directions to collect a particular sum, he might suppress the information as effectually as when he is required to collect a certain per cent. The calculations in both instances are made on the same data, and the Tax Collector is no more liable to mistake in making this calculation than he is in making estimates for the general taxes. In both cases he must act under the authority of the law, and must decide according to the convictions of his own judgment. We have no reason to doubt but that the Tax Collector acted in conformity to the law, and that he did collect the amount of at least twenty per cent, from the taxable inhabitants of Barnwell. Having acted under the authority of the Board, and in pursuance of the directions of the Act, so far as it regards his duties, what excuse can his sureties have why they should not answer for his default, under the obligation of their bond % The mode in which the Commissioners conveyed the intelligence of their resolution to the Tax Collector, was highly reprehensible, but as the Tax Collector took no exception to it, but acted under it, the securities should be bound to the extent that he was under the true authority of the Commissioners; and that authority was, that 20 and not 25 per cent, should be collected.
The jury were fully authorised to come to their conclusion, that Walker had collected 20 per cent, on the amount of the last year’s taxes ; and for that amount, subject to the deduction of the sum paid by the principal, the securities were properly held responsible for in this action.
We therefore refuse to set aside the verdict of the jury, and dismiss this motion.
O’Neall, Evans, and Wardlaw, JJ., concurred.