Missouri ex rel. Harshman v. Winterbottom

This is an action brought in the circuit court of the United States for the Eastern district of Missouri against John Winterbottom as principal, and the other defendants as sureties, on a bond given by Winter-bottom to the state of Missouri as collector of the revenue of the county of Knox, in said state. No copy of the bond is found in the record, but the allegation of the petition in regard to the substance of it is 'that on the thirtieth day of December, 1878, said Winterbottom as principal, and the other defendants as sureties, executed a bond, whereby they acknowledged themselves to be held and firmly bound unto the state of Missouri in the sum of $100,000, for the payment of which they bound themselves, their heirs, executors, and administrators; that said bond was conditioned that said Winterbottom should faithfully and punctually collect and pay over all state, county, and other revenue for two years next ensuing the first day of March, 1879, and should in all things faithfully perform all the duties of the said office of collector according to law, and that said bond was, on the day last aforesaid, approved by the said county court.'

The petition also declares 'that by law it was the duty of said Winterbottom, as such collector, to collect all county taxes of said county in money, except that he was authorized and required to receive any county warrants issued by said county, when presented to him by the legal holder thereof, in payment of any county tax existing against said holder and accruing to said county; that he was not required or authorized to receive any such warrant from any one other than the legal holder thereof, and not from such holder except in payment of a county tax assessed against him; that the legal holder of a county warrant is the person to whom the same is issued as payee, or to whom the same has been transferred by one or more assignments in full; that by law all county warrants must be made payable to a person therein named, and no county warrant can be made payable to bearer, and any county warrant payable to bearer is null and void.'

The petition also alleges that Harshman, for whose use the action is brought, was the owner of two county warrants,-one for the sum of $3,315.05, and the other for the sum of $6,821.74,-with interest, which he had presented to the treasurer of said county for payment, and it was refused because there was no money in the treasury out of which they could be paid. This fact was certified on the back of the warrants, which the treasurer entered in his registry of warrants as required by the statute of Missouri. This occurred on the eighteenth day of March, 1879, and the petition filed June 13, 1883, alleges that no part of said warrants has been paid, though demand had been made for said payment. It is then alleged that Winterbottom, intending to prevent any money coming into the treasury of the county out of which these warrants could be paid, had, in the collection of the taxes, received other county warrants in payment, and had thus collected and given receipts to all the tax-payers for their taxes. This action of Winterbottom, he alleges, was an unlawful violation of his duty as collector of the county, and a breach of his official bond. He then describes with more minuteness the particulars in which this conduct was a violation of his official duty, alleging that by the law the collector had no authority to receive any warrant in payment of taxes which was not originally issued to the man who offered it in such payment, or was regularly assigned to him, and that even such holder could only use it to pay his own taxes. The petition alleges a disregard of this provision of the law by the collector, who 'did, during his said term of office, unlawfully and wrongfully receive from divers and sundry persons, in payment of taxes of said county, divers and sundry warrants of said county, the said persons not being the legal holders thereof, because the said warrants were in no case payable to such persons, and were in no case transferred to such persons by assignment in full, and said persons not being entitled to pay the same in for taxes, because no taxes were assessed or existing against them; that said Winterbottom, upon receiving such warrants, gave receipts discharging from further payment the persons against whom said taxes were so assessed and existing, to an amount equal in each case to the amount of warrants so received; that from the eighteenth day of March, 1879, to the first day of March, 1881, said Winterbottom collected all the county taxes of and in said county in warrants, as aforesaid, and not otherwise; that all the tax-payers of said county from whom any county taxes were due during said period have received from said Winterbottom full acquittances without the payment of any money, and without any payment except in warrants as aforesaid.'

The petition then states 'that the said Winterbottom, as required by law, once in each month during the said period, made settlements to the clerk of said county court of the county taxes so collected by him, and delivered to the treasurer of said county the said warrants so received as aforesaid; that the said Winterbottom, as such collector, and the said treasurer, at various times during the years 1879, 1880, and 1881, made settlements of their official accounts, as required by law, with the said county court, and the said treasurer exhibited to the said court, and filed with the clerk of said court, all the county warrants so received by the said collector, and by him delivered to the said treasurer, and the said county court accepted and approved the settlements of the said collector and the said treasurer, and approved the acts of the said collector in receiving warrants in payment of taxes, as aforesaid, and ratified and confirmed the release and discharge of said tax-payers from payment of their taxes, as aforesaid, so that the same cannot again be demanded of them.'

To this petition there was a demurrer, which being sustained by the circuit court, judgment was rendered for the defendants. The assignments of error relate to this action of the court in sustaining the demurrer.

T K. Skinker, for plaintiff in error.

Clinton Rowell and John W. Dryden, for defendants in error.

[Argument of Counsel from pages 219-220 intentionally omitted]

MILLER, J.