
    City Council of Charleston v. Hugh Paterson, Jeremiah A. Yates and Alexander Sinclair.
    An ordinance of the City Council of Charleston, made it the duty of the City Treasurer, once in every three months, to call upon all licensed auctioneers, within the city, to render an account of the sales at auction made by them ; and to report to the City Council every auctioneer who should refuse, or neglect to render an account of his sales, or to pay the tax due to the city thereon: The ordinance further provided, that every auctioneer in default should forfeit his license, and be rendered incapable of talcing out a new license. Held, that the ordinance was merely directory to the Treasurer; and that the neglect of that officer to call upon an auctioneer, and to report him as a defaulter, did not discharge the sureties of the auctioneer from their liability.
    Tried before Mr. Justice Evans, at Charleston, January Term, 1831.
    Tins was an action of debt on bond against the sureties of Thomas Cochran, a licensed auctioneer, lately deceased : The condition of the bond, was, that Cochran would account for, and pay over to the city treasurer, the taxes which should accrue to the City, on all sales at auction, to be made by him; and the breach assigned was the non-payment of two hundred and seventy-four dollars, of taxes so accrued.
    The defendants read in evidence the ordinance of the City Council, passed in 1818, under which they had entered into bond for Cochran. The ordinance made it the duty of the city treasurer to call on all auctioneers quarterly, to render an account of their sales, and to report to the City Council all such as were in default, either in making returns, or in paying over the tax to the City, incurred by such sales; and the ordinance provided that every auctioneer in default should forfeit his license, and be rendered incapable of taking out a new license. It seems to have been admitted, that the city treasurer had neglected to call upon Cochran, and report him a defaulter, as he was required to do by the Ordinance ; and the defendants contended that they were thereby discharged from their liability.
    His Honor, the presiding Judge, charged the jury, that under the authority of the cases of U. S. v. Kirkpatrick, 9 Wheat. 720. U. S. v. Van Zandt, 11 Wheat. 184; and Dox et. al. v. Post Master General, 1 Peters, 318, the clause in the ordinance requiring certain duties to be performed by the treasurer, must be considered as merely directory to that officer, and not a part of the contract of the defendants; that it was a security superadded for the benefit of the city, and did not discharge the defendants from any portion of their liability.
    The jury, conformably to the direction of the Court, found a verdict for the plaintiff; and this was a motion for a new trial, on the ground of misdirection.
    Gilchrist and Dunkin, for the motion.
    Cited the case of the People v. Janseri, 7 Johns. 332, which,it was contended, wasmore closely analogous to the case in hand, than either of those which had been decided in the Supreme Court of the United States ; and in that case the securities were held to be discharged by the laches of the public officers. Besides, all of the cases on the other side seem to have gone on the ground, that laches could not be imputed to the government; a rule which cannot be predicated of a municipal corporation possessed of no attribute of sovereignty.
    The defendants became the securities of Cochran, on the implied promise of the City Council, pledged by their ordinance, that their agent, the treasurer, should regularly, at stated periods, call the principal debtor to account. If this promise had been fulfilled ; if the treasurer had performed the duties required by the ordinance; it was obvious, that either Cochran must have paid the tax, or his license would have been revoked ; and the defendants could, under no circumstances, have been liable for more than the default of a single quarter. But the treasurer had failed to perform his duty; and what was the consequence? Cochran had been enabled to go on for a long time accumulating his arrears ; his securities were lulled into the confidence that all was right; and were thereby induced to suffer their securityship to continue, and were deterred from resorting to measures for guarding themselves against the consequences of Cochran’s insolvency. Was it just or reasonable, that they should be held liable under these circumstances ? The treasurer was the agent of the City Council, and under their control; and they are responsible for his laches. Besides, the ordinance of 1818 was in existence at the date of the bond; it was under the provisions of that ordinance, that the bond was entered into. It was with reference to the ordinance that the defendants undertook for Cochran; and it therefore formed part of the contract. It amounted to a stipulation on the part of the City Council to use a certain degree of diligence ; and having failed to perform their part of the contract, there is no principle of law or justice which will authorize them to hold the defendants bound by theirs.
    Axson, City Attorney, contra.
    
    The condition of the defendants’ bond is, that Cochran shall account and pay:'there is no proviso that the City Treasurer shall call upon him at stated periods. The liability of the defendants was defined in their bond ; and they had no right to look beyond it for the terms of the contract into which they had entered, nor to consider any directions, which the City Council might deem it expedient to give to their officers, a part of their contract.
    In the case cited from 7 Johns, there were peculiar- circumstances of long continued indulgence to the principal debtor, which do not exist here; besides which, that case is not defensible on principle, and was expressly overruled by the case in 9 Wheat. 737. The question must be considered as settled by the cases cited by the presiding judge.
    Tfic foundation of the rule, that laches is not to be imputed to the government, is not the possession of sovereign power, but that government is the agent of the public, to whom laches cannot be imputed; and the City Council, being the agents of the public, are within the rule. But there is no need of the application of the rule in this case : The utmost with which the City Council, or their agent, can be charged, is delay in proceeding against the principal debtor; and that even in the case of private individuals will not discharge the security. 10 East. 34. 14 Id. 310.
   Per Curiam.

We concur fully in the views expressed by the presiding Judge; and the motion is dismissed.

Motion refused.  