.'
888
FEDERAL REPORTER.
New York, the primary jurisdiction for the settlement·G)f his estate is vested in the <lourts of that state; that there the willm\1llt first be probated; and that in Illinois there can be only ancillary'administration, and that limited to property in that state; and, finally. that, as it is not shown that testator left any property in Christian cO\1nty, the courts of the county had no jurisdiction of the estate even for purposes of ancillary administration. , Neither of these propositions can, I think, be sustained. 'l'he county oourt!!! of Ulinois have general jurisdiction of the settlement otestates of deiceased persons, with power of appointment of executors and administrators. Rev. St. Ill. c. 37, § 69. The presumption as to their actions is that they are rightly done, and that the authority oonferred upon an executor to act 'within their jurisdiction was lawfully granted. Grignon v. Astor; 2 How. 319. The. letters testamentary prove the authority of the executor to act for the ,estate. He has possessjon .of these securities. PritMfaci.e it is his right and duty to .oollect them. This is not a case in which the securities are in the possession of another representative ,of the estate appointed by the courts of the 'state in which the property situate, as in Noonan v.Bradley, ,9. :Wall. 394, or where full d.uthority to sue is not given by the statutes ofthe state in which the action is brought. The statute of Nebraska is and full in its terms: "An executor or administrator, duly appointed in any otll;erstate or county, may commence and any action, or suit, in any .court in the state, in his capacity of executor, or ,administrator, in like manner and under like restrictions as a non-I;esident may be permitted to sue." Comp. St. Neb. 1885. p. 324, c. 24. :If the will contains apy restric>tions upon the power of the executor to collect or any other disposition of these securities, the defendants should have proved the fact; otherwise the debt whicll they owe the .estate they sh,ould. pay to the proper representative. These are the only questions presented which I deem it necessary to notice. A decree will be entered in favor of the complainant as prayed for. It is admitted that the case of Oheneyv. BrflW'n is similar, and a like decree will be there entered.
'. l'
BRANCR t1. DAVIS
8.t1d others. Tenn,.1886.)
(Oircuit Oourt, M. D. 1.
BONDOP ':PROBATE JOOGE-LWILITY ON ...... FAlLURE;T6 MAKE TAX-RoLLCODE 6139: ' ' .
,The by Code Ala. § 4115 upon the probate judge to make and deliver a to the tax collector, upon the levy of a tax by the county , commissi'oiiers, is a duty incident to hiin,ffice as judge, and not 'as 'sioner;and,for neglect of it anactionean be maintain,edupon his bond bya Judgm;\l/lt ICfeditor, of, tbecounty, payw,hose judgmen,t the, tax was levlel1, 689 of the. Code, pr!lvldlng that a of a ,probate judge may besue'd·by anyone sustaming an mjuryby the faIlure of.the Judge to perform certaJn specified duties, or "any other official duty."
BRANCH II. DAVIS.
889
2.
The measure of liability of a probate judge,or his sureties, to a judgment creditor of 'the county, for 'his failure to make and deliver the tax· foil to the tax collector. after ll. special levy to pay the judgment, is the actual loss and trouble caused to plaintiff by the delay and the failure of the proper officer to collect the levy, but not, the amount of the judgment, nor the amount which the levy would have yielded, ifcollected, although the levy has become fUnctUB by the delay, unless it is shown that, in consequence of the delay. it has become impossible to coUect the judgment.
OF DAMAGES-JUDGMENT CREDITOR OF COUNTY.
8, TAXATION-COLLECTI01'l AFTER THE YEAR.
If the probate judge fails tomake and deliver a tax-roll to the tax collector upon'a levy being made by the county commissioners. and the tax-year passes without his having done so, the. power to collect the tax by the ordinary statutory mode is gone.
Heard upon the Trial of the Cause. Jury,by 'agreement of parties, was discharged. , D. & Troy and A. T. Landon, for plaintiff. WalterL.:Bragg and Wm.. H. Smith, for defendants. BRUCE, J. This is an action brought by plaintiff against-the defendant DavidL.'Davis and the sureties on his official bond for damages for an alleged failure on the part of Davis to a duty required of him by law as the probate jUdge of Randolph coUUty, of Alabama. On the ninth day of December, 1876, the plaintiff recovered a judgment in this court against the county of Randolph, Alabama, for the sum of $3,691.44, and costs;,Il.Ildthereafter, on the tenth day of August, 1878, at the instanoe-of plaintiff, a writ of mandamus was issued from this COU!t to thecommisaioner's court of said county requiring that court to levy, assess, and cause to be collected, a tax upon the taxable property of the county to pay saidjudgmept; and thereafter, on the twenty-first day of October, the court of C()ut:ltycommissionerll of said county, in obedience to said writ, did levy,a,ndassess a tax of three-fourths of 1, pel! cent. upon the taxable property of said county, and' made return thereof to this court. By section 435 of the Code of Alabama it is made the duty of the probate judge to "make a book containing, in concise form, the amount of 'taxes due by each tax-payer, which book shall show the amount of tax on real estate and personal property separately, * * * which book must be turned over by the judge to the tax collector on or before the day when the tax becomes due. * * *" This book, 80 made and delivered to the tax collector, is the warrant of authority to the collector for the collection of the taxes. There is . really no controversy as to the facts in the case. It is in proof, and is admitted, that the probate judge did not make or deliver the book described in section 435 of the Code to the tax collector; that the tax levy was never collected; and that plaintiff's judgment remains wholly unpaid. The questions which now arise are: First, is there any liability at all on the official bond of the probate judge? And, second, if so, what is the measure of damages which may be recovered? First, then, as to liability. It is fundamental. that injury to a party which is the direct and proximate result of a bl'elj.ch of duty on the part
890
of another carries withit liability tocorripensation for such injurYiand this is surely not less so where persons occupy places oj official trust and responsibility.. In these cases statutes are passed which have for their purpose i:uid object the secuntyof persons to whom injury may come by reason of the neglect and refusal of officers to perform the duties re<;Juired of them by law. By section 689 of the Code of Alabama it is provided: "All bonds given by judges of probate may be sued by anyone sustaining an injury by reason of any neglect or omission. of such officer" to perform certain duties therein specified; and the concluding words of the section are, "or by the failure of such judge to perform any other official duty." The words of the law would seem to be a full answer to the question of lia. bility. It is said that the omission of the duty complained. of 'is not a duty required of the defeqdant Davis when acting as.aprobate Judge, but one which he could only perform while acting as a commissioner and chairman of the bot.trd of equalization of taxes; but this is not the correct reading of the law; . " ' The case ofE1: patte Roo/land, 104U. S. 613, is cited, where the court say: "The::courtofcounty commissioners, while called a 'court,' is in fact the -board 'of ,officers through whom the affairs of· the county are managed. The duties of this board * * * are administrative, not judicial." The statute, however, as we have seen, imposes the duty, the failure to perform whicbiscomplained of here, upon the probatejudge, eo nomine, and not upon him as a commissioner or member of the commissioners' court. And the fact that duties of this character are administrative, .and not judicial,is the ground upon which such' officers may be required, by proper proceeding, to perform those duties, and, failing, may be held responsible to parties injured in damages resulting to them for such failure. . Another suggestion is that the law in reference to the official bond of a probate judge was· not intended to cover such a failure of duty as is here complained of, and that, while the probate judge might himself be held liable, his sureties on his bond cannot be so held liable. The case 'of Jones v. Biggs, 1 Jones, (N.C.) 364,'is cited in support of that view. In that case the court bases its judgment on the statute of North Carolina which reqUired guardians to renew their bonds every three years, and provides: "It shall be the duty ofthe·clerks of the several county courts to issue an ei officio summons against each guardi!\ll who shall fail," etc. The court holds that this duty imposed upon the clerk was not to the office of' clerk, dato keep safely the one of theduties records, issue writs,' etc. In the case at bar, however, the duty is specifically enjoined by the statute, and is in its nature and effect so much like the duty of issuing writs in the ordinary cours/} of the business of the office that the case is not within the rule of the case cited. The question, however, which gives rise to the most serious contention is, conceding the liability of the probate judge and the sureties on his
,
"BRANCH :V.' DAVIS.
891
official bond, What is the' measure of such damages? It is claimed, on the one hand, that it ,can he no more than nominal damages. On the other, that it is the amount the plaintiff's judgment in this court; or, i{ not,'th(i'alllount that 'the Jevyof October 21st would have yielded if it had been' collected a,ccording to law and the right ofthis plaintiff. ,It is not shown 'that t4eplaintiff's debt, now in judgment, has been lost, or that the taxable property of the county is less in value now than 'it Was when the judgment was rendered. On that point the presump'tiOli is that the lana, and even the personal property in the county liable 'to taxation, is still there; but the plaintiff's debt has not been paid, either in whole or in part, and-the question arises whether the failure of the probate judge to 'comply with the law as before stated renders him. aI,ld his bondsmen liable for the judgment, or whether the debt, interest, and costs are to be takell as an eiement of damages in such a case. , Authorities are cited to show that, ('in absence of'averment and proof df actrial injury, there can be oniy nominal damages recovered." Marcum v. Burgess, 67 Ala. 556.' This was an action on a, sheriff's bond for damages for failure to retUrn an execution according to its mandate. In the 'case of Dow v. Humbert, 91 U. S. 294, which was a suit by a judgment creditor of the town of Waldwick against the supervisors of 'the town for refusing to place upon the tax-list thereof the amount of his judgments as '. provided by the statutes of Wisconsin, it was held that the plaintiff was entitled to recover only nominal damages. In .that case the point was squarely made by the plaintiffthaf the measure of his damageswil-sthe amount of his judgment against the town; but the court 'lleldotherwise, and in its opinion announced the principle upon which damages in 'such cases should be awarded. This case is decisive of the question that the measure of damages in such cases is not the amount of the debt of the plaintiff, but that, iIi the absence of any proof of actual damage, the plaintiff is entitled tonominal damages only, and costs; and it would seem to follow from the reasoning of the court that in no case of the kind is the plaintiff entitled to any judgment that would operate a credit on the debt or judgment, to pay which the levy had been The theory is that interest is the equivalent for delay in the col,;, lection of a debt, and, unless the debt is lost, either in whole or in part, the recovery in a suit against the delinquent officers is not for the debt, or any. part thereof, but only for the injury actually sustained by the plaintiff. It is claimed, however, that the case at bar is distinguishable from the case of Ddt» v. Humbert, and there are points of difference. In the ter case there was no levy, as in this case. There the delinquent cers failed to place the judgments on the tax-list of the town, and it does not appear that in that case there had been any mandamus proceeding, as in this case. It is not clear, however, that the mandamus proceeding in the case at bar, in obedience to'which it is alleged the court of county commissioners made the levy of the tax to pay the judgment in question, either increased or'diminished the statutory liability' of the probate judge upon his bond.
of
892
Considerable stress was laid in argument upon the idea that the record'showed that a false return had been made in answer to the peremptory writ of mandamus from this court, in this: that thereturn showed that a suit had been instituted upon the bond of the collector of taxes of the county to make him liable fora failure to perforip, his duty in the collection of this levy, while in fact the members of the court of county commissioners knew that he never had incurred any liability in the matter, forthat the book or tax-roll which was his authority to collect the tax had never been made and delivered to him by the probate .judge, a!1.required bylaw, and therefore the duty to collect had never been devolved upon, him. But, whatever bad faith, if any, may be chargeabJe the members of the, court of county commissioners in the return which they made to the writ of mandamus, that cannot be considered as an element of liability in this suit, which is a suit against the probate judge. not as a member'of the court of county commissioners, but against him as probate judge, and. the sureties upon his official bond. In the case of Dow v. Humbert the suit was not, as in the case at bar, upon an official bond, but against the delinquent supervisors, and cerof liability involving sureties would not be held more tainly the strictly than in a case against the official alone. But it is claimed that. although the plaintiff may not be entitled to measure his damages in this case by the amount of his judgment. still he is entitled to the fruit of the levy which was actually made, and which yiel<;led nothing to him by reason of the failure of the probate judge to perform his duty as charged. A question has been made in. the argument as to whether, in legal contemplation, the damage which the plainand proximate result of the failure pf the protiff claims was the bate judge to perform his duty as charged,-for that non constat the judge , might have Ipade anlJ delivere4 the book to the tax collector, and he been unable to collect the tax; but it is not deemed necessary to discuss this question ,of cause and effect in this case.. . " It is said the levy is .and the plaintiff has lost the fruit of that levy, and therefore the amount that the levy would have yielded, if collected, isthem,easure of damages to which the plaintiff is entitled here. Argument is made to shqw that ,the levy is not dead' or lost, but that it remains as. a charge upon the t.axable property of the county; citing Perry Co. v. Selma M. lIf. R. Co., 65 ,Ala. 401; Winter v. Oity Council oj Montgomery, Sup. Ct. Ala. MS. These cases show that a levy of tax, made regularly by the proper authority, remains a charge upon the property, subject to the levy, which a court of equity will recognize; but, after the tax-year passes, where, then, is.the authority for the probate judge to make and deliver the taxwhere is the authority of the collector to warrant toth,e collector, enforce the collection of such levy? The collection of taxes is matter of strict law, and governed by the statute; aIld, if special taxes to pay a judgment are not collected in the same manner as are other taxes, then the question arises, under what law can the tax collector proceed to collect such tax?
BRANCR V. DAVIS.
893
In the case of Winter v. City Oowncil of Montgomery, cited 8Upra, which was a bill in equity to enforce the collection of, delinquent taxes, the court eay: "The remedy given by statute is gone with the lapse of years because of the failure of the proper officer to enforce it at the authorized time;" so that the levy of October 21st, whatever right it may give the plaintiff,. the ordinary means of collecting it is gone. The plaintiff insists that .the levy made by the court of county commissioners has been impaired, and that this case is not, therefore, like toe case of DfYW v. Humbert, cited supra; but, if it has been impaired, it is only by. the faet that it has not been collected, and may not now be collected in the ordinary way; and in Dow v. Humbert, at page 299, the court say: "The expense' and cost of the vain effort to have the jUdgment placed on the the loss of the debt, if it had been lost: any impairment of' the efficiency of the tax levy, if such there had been; in sholt, any conceivable actual damage,:-the court would have aJlowed, if proved. But plaintiff, resting solely on his propositiol) that defendants by failing to make the levy ha.d become his debtors for the amount of his judgment, asked for that, and would accept' no less." . Plaintiff in the case at bar presents this view of the subject: that, if not entitled to the amount of the judgment, he is entitled to the amount· the levy would have yielded had it been collected, for that the levy has been impaired. It has happened in this instance that the levy of threefourths of 1 per cent. upon the taxable property of the county as returned for,. that year will not .yieldthe full amount of this judgment, and the plaintiff claims judgment for the .amount the levy, if collected, would have yielded, on the ground that that levy has been impaired. We have seen that the right to have the.Ievycollected in theoxdinary way is gone; but is that what the supreme court in the case of Dow v. Humbert, cited 8Upra, means by an "impairment" of the efficiency of the levy? It may not be entirely clear what the court meant by the words just quoted, Qut fx:om the connection in .whichthey are found it is clear that the court meant ,any. impairment of the efficiency of the levy, the direct result of which would be actual injury to the plaintiff in the ultimate collection of his debt,--:for instance, the loss of property available for taxation in any future effort to levy and. collect taxes to pay the debt,-but certainly not such 10ss.a8 merely results in the postponement of the day of the payment of the plaintiff's judgment. Doubtless, the failure of the bate judge to do his duty caused delay in the collection of the plaintiff's debt, and repeated delinquencies of this kind on the part of officers whose duty it is to provide forthe payment of judgmentsof this character would tend very much to lessen the present value of the debt, and, by postponing the day of payment, might almost render it valueless; but the supreme court in the case weare considering has in effect said that interest on the judgment is an answer to that objection. The distinction insisted upon by plaintiff cannot be maintained. If, ina suit for damages against officers of a municipality for a failure on their part to.place certain judgments on the tax-list as required by law,
894
FEDERAL' REPORTER·
.fue imeasure of damages is liniite(J.' to the 8ctualloss 'tei the plaintiff, now ,can it be that in a suit against a probate judge, undel'-the law of Alabamll, for a failure to make and deliver the tax-roll to 1the tax collector, as he is required to do, the measure of damages can be other or greater than in the former case? Whether the delinquency complained of was in the first or subsequent steps required by law of the various officers charged with duties in the' matter of the assessment arid collection of taxes to pay judgments, it is not· important to inquire, except 80 far as it may be shown that such delinquency results in' actual'loss to the plaintiff; nor is it the presumption ill such cases that the debt is lost, and the .burden thrown upon the defendants to show the contrary. The pre-sumption is that the taxable property of the municipality remains liable of tb,eplaintiff, and that, to tttxstion £orthe payment of the If ,the levyaiready made cannot be collected, a new levy may be made, and its collection enforced by a proper proceeding. A question is made in referen<:e to the effect of certain legislation of the state sInce the judgment in this case was obtained, in reference to What are known as the "Strangulated Counties," of which Randolph , county is one; but it is not deemed necessary to enter upon an examination of that legislation, for, whatever it may have been, even if it embarrassed the plaintiff in the enforcement of his remedy in this case, and whether constittitional or otherwise, it could not affect the question of the liability of the probate judge of Randolph county upon his official bond in this suit. The principles announced in the case of D(J/J) v. Humbert, cited :wpra, are conclusive of the present case, and go fully to the proposition that actibns of this character against officials for a failure on their part to perform the duties required of them by la.w are not to be made the means of collecting the debt of the plaintiff,but the recovery is to be compensation to him for the injury and loss actually suffered by him, and resulting from the failure of the defendant to perform the duty required of him by law. In that case, however, the court says: "The expense and cost of the vain effort to have the judgment placed on the tax-list," and "any conceivable actual damage, the court would have allowed, if proved." In the case of Newark Sa'/). lmt. v. Panlwrst, 7 Biss. 100, the court, DRUMMoND,J., commenting on the case of Dow v. Humbert, says: "It has been decided, substantially, that the officers of such corporations are not liable for more than nominal damages if they refuse to perform the duties which the law imposes upon them i" and then goes on to say: "We will give the plaintiff some compensation for the trouble to which ,it has been put in consequence of the non-performance of a duty by the defendants, in the employment of counsel, and for the labor and expense, without defining it in any precise form or language;" and names $585 as the sum for which judgment is given. It is manifest that the courts in these cases feel that mere nominal damages and costs furnish a scant vindication of the law, and this case illustrates that view of the subject. Here the plaintiff had to resort to a suit in mandamus to compel the levy of a tax to pay his judgment; and when
SEMM 11. SUPREME LODGE KNIGHTS OF HONOB.
895
the members of the commissioners' court, under the coercive power of this court, Uladethe levy which they did make, the probate judge, a member of that court, failed to deliver the tax-roll to the tax collector of the county so that the levy was not collected, and practically became valueless to the plaintiff. Such conduct on the part of an official suggests that there should be some spur and incentive to the performance of legal duty beyond a ju<igment of one cent and costs; and following the ca8elastcited, supra, (the parties having agreed in open court, the question,being one of Jaw, and the jury having been discharged, th8.t thecottrt should determine the matter, and the entry be made as upon a verdict of ajury,) the court finds for the plaintiff in the sum of $500 as cotnpensationfor trouble and attorneys' fees in this cause, and costs of this suit.
SElIM t7. SWREME LoDGE KNIGH'l'8 OF HONOn.
(Otreuit Oourt,B. D. N8'ID Y()'f'k. February 14, 1887.) LU'II I:!mmANOB-ANsWERll 01' APPLICANT NOT W AR1lANTIE8. 'An applicant for life insurance, under the cont:ract, in this case, undertakea
to, answer the questions put to him according to his knowledge or r,easonable belief, and not to misrepresent or suppress known facts, but does nl)t warran& the absollitetluth of his a.nswera. .
.:A.t lAw.
,CJhMleB Steckler, for plaintift'. Mama Goodhart, for defendant.
SlUPHAN, J. The question of law is whether, under Semm's application to Humboldt Lodge for membership therein, and the certificate which hereceivedfroril said lodge, he warranted the truth of the answer which he gave to the question, II Have you been rejected by the medical examiner of any lodge or society?" In my opinion, he was required, Under the contract, to answer the question according to his knowledge or reasonable means of belief, and not to misrepresent or suppress known facts, but that he did not warrant the absolute truth of his answers. The reason of the opinion is contained in the: applicant's agreement in his printed application for membership. ' As stated when the motion for a new trial was made, I have no objection to the verdict on the ground that it is against the weight of the evidence. The motion for a new trial is denied.