
    State v. Wm. A. Britt, et als.
      
    
    A tax collector who has received the tax hooks without the certificate of the County Court clerk, is liable for taxes which he had collected or failed to collect.
    FROM CARROLL.
    Motion before James D. Porter, J., and a jury. May Term, 1873. Judgment for the State and appeal.
    The-case being made out on the part of the State, defendants introduced Cyrus Wilson, who testified that he was clerk of the County Court for Carroll County, for the year 1869, and that he had never delivered to the collector any certified list of the taxes for the year 1869, but that he employed "Wm. Gr. Crockett, to make out a copy of the tax book for said year, and he presumed the same was correct. The book was not produced.
    The court charged the jury, that parol evidence was not allowable to show that the County Court clerk failed to certify to the correctness of the tax book, and would not excuse the defendants from liability.
    Isaac R. Hawkins and S. S. Hawkins, for plaintiffs in error,
    argued as follows: This is an appeal from a judgment rendered upon motion against Britt, as tax collector of Carroll County, and his securities, for not collecting and paying over taxes to the State.
    The bond was executed 5th day of July, 1869, and is conditioned that Britt, tax collector for Carroll County, collect, account for, and pay into the State treasury, at the time prescribed by law, all taxes by him collected, or that ought to be collected in the year 1869. There is no evidence in the record that he was either elected or inducted into office at any time. Nor does it appear from the certificate in what court the bond was given, or by the chairman of what court it wab approved.
    There is no proof in the record, that the tax collector collected • anything, and it is jiositively proven that the tax book was not certified by the clerk of the County Court: See Code 588; Governor v. Montgomery, et als., 2 Swan, 613.
    
      The clerk of the County Court swears that he did not certify the book. This evidence was admitted without objection, and included by the court in his charge. This was error. The court says such a fact can not be proved by parol evidence; or, in the language of the charge: “Parol evidence, That the clerk of the County Court failed to certify to the correctness of the tax book for the year 1869, will not excuse defendants from liability.”
    The evidence is not offered to prove the existence of a writing; but to prove that there never was such a thing, and would be much stronger evidence than the production of a book; for in that case, the writing could have been destroyed by acids, a leaf might be extracted, and, if need be, a new one inserted, or the writing in a blank book disposed of in many other ways. But here the evidence shows clearly that it never had an existence, and that the comparison required by the statute, was never made.
    The book is not shown to be an official book or record, but on the contrary, is shown not to be.
    The defendants moved for a new trial, which motion was overruled.
    Att. Gen. Heiskell for the State,
    presented the following argument: The only material defense set up in this case is, that the clerk of the County Court did not certify the tax book. The failure was for the year 1869. The motion was made at the May Term, 1872, and judgment rendered in May, 1873. On the trial of the cause, the defendants, without any offer to produce the .tax book delivered to the collector, undertook to prove by parol, that the clerk did not certify the book. The court charged that this was not admissible proof for the purpose, and nothing can be clearer than that the best evidence must be produced, or its absence accounted for.. The book must be shown, and then it will show for itself. The certificate is part of the contents, if it is there; and whether it is there or not, is only to be shown by inspecting the paper: See 1 Greenl. Ev., §§ 82 to 87, and note to § 87. To prove the .facts, a paper executed to prove it,' must be produced, and be a valid paper. To show that a document is invalid, by reason of sorqe defect, which must be apparent from the paper when inspected, it must of course be produced, that it may be inspected, that being the best evidence of the existence or non-existence of the defect.
    Here, I might close the argument, for it is clear, whatever might be the case, upon proper proof, the case is not made. But I can not allow the occasion to pass, for some • comment, on this attempted defense. To my mind, the case presents an attempt to evade responsibility, upon grounds utterly untenable, if well proved.
    I insist, that the case of The Governor v. Montgomery, 2 Swan, 613, is not a well considered case, and ought' not to be followed. The reporter has not given us the benefit of his argument on the question, and the court has stated conclusions simply, with no elaborate reasons, and such as are given,. when carefully considered, appear insufficient to maintain the conclusion. It would appear, from the absence of any consideration of objections to the argument, that no reasons of a pregnant or cogent character, were given against the conclusions of the court, though the Attorney General was a man of acknowledged ability and vivacity of intellect, and capable of producing an argument of power. It suffices to say, then, we do not know what considerations were presented to the .court — one of the most important questions to be considered in determining on the weight to be given to a decision.
    The only case cited: 5 Ire., 129, opinion by Judge Ruffin, was not a decision on this point. The court reason upon it, but decide upon another grouhd. ‘ It may, therefore, be regarded as being thrown out for consideration. It has the weight of an unofficial opinion, and however much respect we may have for that eminent judge, it falls far short of the authority of well considered decision. The latter is authority, the other is merely the opinion of an eminent jurist, not judicial. It is to be weighed by the reasons on which it was based, as compared with the reasons which the court can array against it. But these dicta, this matter arguendo, does not apply to our statute. "We do not know what were the provisions of the law in force in North Carolina, and they may be entirely different from the law of Tennessee.
    To my mind, the questions which should have been presented to the court, (but which were not, from the absence of any remark by the court, such as their presentation would have called forth,) are of this kind. The policy of the revenue law is to get the revenue collected, and have it accounted for. The policy which the case in Swan fosters is to defeat both. The clerk and sheriff arc each the agents of the State. There is no all-seeing eye of sovereignty to pry into the actions of each in detail, and see that each performs his duty. The policy of the law then, in construing the duties of each, must be to so mould the separate action of each, as to make it conduce to the general good, by making it tend to supply the want of a general head. That is to say, if there is a policy which will require of each, not only to do his part, but to see that his part does not fail through the failure of the other, that construction should be favored which will reach the end. So imperfect is all human language, and laws dependent on language for expression, that the operation and perfecting of every legislative system, is greatly dependent on the ability of those who construe it. I imagine that the revenue system owes more to your honors, than to all your predecessors, in bringing order out of chaos. The clerk was required to furnish a copy of the tax. list. The acts of Tennessee did not originally require the certificate in terms. Yet the court in Montgomery’s case, goes upon the idea that it is expressly required. The act of 1855-6e, Code, —, does require the certificate. But the act of 1859-60, Code, 570c, comes after-wards, and makes a new provision entirely; not that the clerk shall make a transcript of his book, but that he shall make out two books; one for his own office, one for the tax collector. There is no principle upon 
      . . which a clerk’s original is to be-certified by him.- The other is a, duplicate original. He is not required ■ by the law to certify it as a copy. True, that is usual; true, that is the convenient evidence. But the law-does not in terms require it. True, the courts might well and would imply it, if any beneficial end was to be attained by it. But under the old bond if he furnished a copy, the law was answered. ■ If he fails to say “A copy — A. B. clerk,” what beneficial end 'will be attained, by saying that such omission makes the tax list void? Is it a benefit to leave the tax collector without authority? Is it a benefit to leave the State without remedy? Is it a benefit to let the tax collector, collect and keep the taxes, for the idea of bracing actual payment of the vast aggregate of small sums which constitute a general tax levy, is impracticable? Is it a benefit to offer temptation to the clerk- and collector to collude to put the lists in the collector’s hands so as not to fix his liability? If it is, by all means it should be held the certificate, which the statute does not require in terms, shall be required by implication. • But if all these can be denoted only as great evils, and all can be avoided by the simple device of saying ita lex scripta est, then how happy may we be to adhere to literalness, and say that the Legislature said exactly all they ought, and all they intended? It may be asked, how is the collector to know that it is right? The clerk is to give him nothing but a transcript — not by any express requirement to add a word to the transcript — and he may himself compare it if he is doubtful. He may take what the law sends and the clerk gives, and if he wants more, go to the Legislature. How are the people to know? They have given it in; they may remember; if not, they may take a note and verify or disprove by comparison with the original. The collector derives no authority from the' clejk. The list is not process; it does not run in the name of the State; it derives its force from the statute, and being a transcript of the book. Which would be best, a transcript, true in every respect, without a certificate, or an inaccurate copy, certified? This defense says the latter; the statute says the former. There is not a single valuable or rational end attained by the requirement of that which the statute does not require, and the ends to be obtained by literally following its provisions, show us that the statute was so drawn either ex industria, or by providential interposition. Let us so treat it. In Montgomery’s case, the court-say “the act requiring the certificate;” a very important misapprehension.
    The act of 1859-60, Code, 570c, does not even use the word transcript. It simply requires the clerk to make out from the list furnished by the revenue assessors, two books; one for his office, and one for the collector. These, of course, are both originals, and neither a copy, and neither of them require by law any • authentication. They will answer every purpose without requiring the authentication, that they will with it, and will, as above shown, avoid consequences which it is surely desirable to avoid.
    But, suppose this certificate, which the law sedulously avoids, were ex industria required. It might follow that the collector would have to show it properly certified, to justify under it, in a suit by a tax payer. It would not follow that he could defend against the State by reason of such defect. Suppose I send .a bill to a bank for collection, without my endorsement necessary to give the authority to collect. The banker lays it away and lets the day of payment pass, without presentation, and so I lose my debt. I go upon him, and he says: Sir, you failed to endorse the bill to me, and I was unable to collect. Of course. I am to go away satisfied that it was my own fault. It might occur to me to say, and to the courts to hold, that it was his duty to return the bill to me to supply the defect. Now, the duty which he would be bound to perform, when I by my own negligence, in my own business, which I am by interest and excited diligence impelled to watch over; the same duty the agent of the State would be required- to perform, in dealing with the negligence of another agent, of a common principal, incapable from its character of watching over either. Surely, if this court has a perfect freedom of choice in holding either of two ways, it will prefer that which would ensure faithful discharge of duty in a public officer. It certainly will, then, require this degree of diligence of public officers of this character, whose efficiency can only be secured by applying to them by analogy, and for a stronger reason, the same rule they apply to private agents.
    The collector is an agent; not like a sheriff undertaking to collect and make due return of process 
      placed in his hands, but generally to collect and pay over. The sheriff if he takes a claim for collection, is bound to take out execution. Suppose he finds his execution unsigned, and he says, all right; I will not collect this — would he not be liable? He must go back and get it righted. The sheriff’s bond does not cover this. But this is just what the tax collector’s bond does cover. His bond is to collect; to do this he must get the process; he must see that it is what will enable him to do his duty, and he must do the duty: If he disables himself to perform his duty or allows another to do so, he has broken his bond. He is charged at the treasury with the tax aggregate! He can not discharge himself by saying: my bill came without endorsement; my execution came without signature. No such statutory excuse is laid down in the Code. Reason will not justify such paltry trifling. Why did you not get it certified? You did not undertake to collect what should be delivered to you in any specific form by the State, a person constituted of two million busy people, incapable of personal attention to your individual case. You knew the State could see to nothing but through you and others. You knew its only mode of getting the thing done, was to require the clerk to do his part, and you to ■do yours. You undertook to do yours absolutely; so you were bound to do towards it everything in your power to clothe yourself with the means. If inadequate means were provided, and two words would make them adequate, and the man whose duty it was to write the words was with you day by day, and you did not say to him, write these words, how can you say I have been unable to collect what my bond binds me in any event to collect; how can you say it was impossible? It was not impossible or difficult.
    The whole error is in taking a superficial view of the duties of State agents. Lately a deeper insight has been obtained, and we are begining to see their duties in another light, but upon the most ^gid and narrow view of the duties of co-agents, we may well assert, that the law which will not excuse an agent for failing to call attention of his principal to his own carelessness, will not exonerate him because the failure is that' of a co-agent.
    The great idea of governmental organization, the radical (root) idea is, perhaps, that of making officers and offices to be checks upon each other. I might elaborate and give instances, but they are too numerous in every part of the government to need to be enumerated. Every proper administration of the law must recognize the system, and be so directed to make it operative. "Why is not the tax collector to make out his own tax list? The assessor's books; the returns might as well be made to him, but for the fact that there is a necessity, that there should be somewhere preserved out of his power to alter or destroy, a like document, which is to operate as a check upon him; and another officer who must furnish to the Comptroller the basis of his account; the aggregate statement; on which the Comptroller is to charge him with what he must collect. The County Court clerk is the officer selected in the system to do these things; he is the check upon the dishonesty of the tax collector, his negligence, etc. But in this respect, who is the agent ■ of the State to see that - the clerk does not fail in his duty? The tax collector by his very duties, that he can not perform without the lists, is, of necessity, bound to see that he does what the law requires of him. If he can not work without tools, and an agent is appointed to give him the implements, and put them in order for him, is he to lay by when the tools ought to be in use, waiting for somebody to come by chance, to whom he can complain that no implements are furnished, or that the ones furnished are not in order? The very relation of the one to the other, establishes the duty which one owes to the other, and which they both owe to the State. I employ a man to work for me, and tell him that another agent will furnish him with the implement he wishes, and he undertakes to do me a good day’s work; he fails t© work, and his excuse is, that the co-agent did not furnish him the necessary implement. Did you apply to him ? No. Or did he furnish it and it broke? Did you apply for another or to have that repaired? No. Does not the very relation of' the parties require this much ? Why is the relation of these co-agents of the State less obvious and clear? It is more so, by the fact that this machinery of checks and balances must go by itself, or it will not go. Every part ' must conduce to the working of every other part, or it will not operate at all.
    The evidence on which the State is entitled to judgment against a tax collector, does not include the fact that the book came to his hands. The statement of the Comptroller of the amount, is prima faeie evidence on which the State is entitled to judgment for the amount. Nothing more is necessary than this certificate to show that much, and if there be any excuse, it devolves on the defendant to show it.
    I deny the proposition, that these motions are not entitled to the liberality of construction, which are accorded to the ordinary proceedings of courts. They are the immemorial modes, in substance,' for reaching those 'who collect the public funds. These persons seek the office with knowledge of the duties it imposes, and remedies it gives. They are part of the onus voluntarily assumed. They, like the revenue laws, are entitled to the most beneficial construction in favor of that two millions of people, who have formed these laws for their own purposes, and have instituted the courts, and the officers of the law for the purpose of carrying them into effect, and these collecting officers and sureties to perform these duties, or to have these remedies executed upon them. On what principle shall we say all this is to be watched with jealousy, and this system administered with niggard and reluctant hand? “The Lord loveth a cheerful giver,” and the State alacrity in the performance of the duty she imposes. Shall we grant to these people who have breathed into us the breath of life, (officially) the justice they have provided for themselves, ás if we were misers giving alms? What would be thought of us, if our parents, having entrusted us with their estates, we should be found administering them liberally to strangers, but doling out to them not one jot of tittle beyond the strict letter of their contract? Surely we are in the same error when in administering justice to the political parent— the people — we dole out reluctantly and with miserly hand, the strictest and narrowest, and lightest measure and weight of right and remedy that her laws admit of, to the encouragment and protection of those who have violated every obligation; who have failed to do their duty in their contracts with her, or who have robbed her of her just dues, and compelled her to new assessments, by way of replacing taxes already paid. In the name of the State and her people, I protest against such a rule, as unjust to the court, and to the people of the State.
    
      
       This case was heard before the preceding case of Pñnee v. Britt, et ah., but decided the same day.
    
   Sneed, J.,

delivered the opinion of the court.

Under the present state of the law, we hold the requirement of a certified copy from the assessment books directory, and for the protection of the collector. Nor could the want of such certificate be shown by parol, without accounting for the absence of the book itself: 1 Greenl., 82, et seq.

Affirm the judgment.  