State ex. rel. Mouton v. Guilbeau

On the Merits.

The case of the State is made out, not only by proof, but also by the special defense setting up title to further credits.

There is no evidence establishing that the defaulting tax collector is entitled to any credit. The district judge, in his elaborate opinion, so finds and declares; so do we.

The defense of the sureties is, after all, simply, that, by the failure of the auditor and of the Governor to report Guilbeau as a defaulter to the General Assembly, and to publish him to the world as such, they have been deprived of their right of subrogation to the rights of the State in case of payment, and are thereby discharged from all liability on their bond.

It is true that the Code provides (E. C. C., 3063) that the jirolongation of the terms granted to the principal debtors, without the consent of the surety, operates the discharge of the latter; but there is nothing in the record to show that the State has ever granted to Guilbeau any prolongation whatever. It is not even pretended that the custodians of the fisc have arrogated to themselves such power which the sovereign alone could have exercised. State vs. Lanier, 31 Ann. 423.

In case of the Police Jury vs. Brookshier, tax collector, 31 Ann. 738, whicli was a synonymous case, the sureties having claimed a release because of an alleged delay in enforcing settlement, the court said:

*721“Their complaint is that the plaintiff was so dilatory in commencing proceedings as to imperil their safety. * * * It is not shown, nor even pretended, that whatever delay there was instituting proceedings either impaired or destroyed their right of subrogation or any other right. The right of subrogation is, indeed, the only one that could be impaired by delay, and it was not affected in any manner by tardiness in instituting this proceeding. The surety is discharged when he loses his right of subrogation. The mere delay to sue does not of itself produce that effect.” See Andrus vs. State, 4 La., 407, and Barnes vs. Crandell, XI Ann. 119.

The defendants contend that, although they did not seasonably establish in the auditor’s department that G-uilbeau was entitled to a credit for the difference between certain taxes, and the price realized by the property liable therefor, and which sold for less, still they should be credited therewith.

The only answer to this is that the law regulating the relations of the State with the gatherers of her revenues is one of extreme rigidity which must be strictly enforced, and that under them, and even under t]re terms of the contract evidenced by the bond signed by the collector and his sureties, the accounts have to be promptly and faithfully rendered at the required time and in the proper manner, otherwise the principal defaulter and his sureties become liable for his defections with and for him in the mode and to the extent stipulated.

The court can pass upon such questions only as may present an erroneous exercise of discretion or judgment on the part of the auditor and treasurer as custodians of public moneys.

In this instance they are not shown to have acted in an authorized manner.

The appellee claims that, in the judgment of the lower court, two of the defendants have been misnamed, and that the errors should be corrected. There can be no objection to that relief.

It is therefore ordered and decreed that the judgment appealed from be amended by striking from the names of Jean Olivier Bouvior tho first name Jean and substituting thereto the name Jacques, and from the name of Jules (?. Guidry the letter G. and substituting thereto the letter J., and that thus amended said judgment be affirmed with costs.