
    James E. Wood, et als., v. The State.
    1. A payment by a collector of revenue, made to the Treasurer, without complying with the requirements of the law, as to the passing of his accounts with the Comptroller, and obtaining his warrant to the Treasurer to receive the money, and the filing of his duplicate receipt with the Comptroller, is not a discharge of the collector.
    2. The receipt is the statutory evidence of the payment, and parol evidence can not be received without accounting for its absence.
    
    3. An offer to prove payment to the Treasurer being made, and refused by the court, held no error.
    EROM GIBSON.
    Judgment by motion at August Term, 1872, Circuit Court. Gid. B. Black, J.
    Hall & Williamson, and Spl. Hill for plaintiffs in error.
    Att. Gen. Heiskell for the State.
    The District Attorney below produces the certificate of the Comptroller, showing the amount due $1,089.06. Defendants plead the payment of this sum. Plea is bad, because it does not aver that it was paid pursuant to law, in this: The Code, 229, expressly prohibits the Treasurer to receive any money until the party bound to pay the same has passed his accounts with the Comptroller, and obtained his warrant to pay into the treasury the sums found due from him.
    It is the duty of the Comptroller, “To keep * * with every person * * authorized by law to collect and receive any part of the revenue, a regular account, charging him with all sums by him received, and crediting him with all sums by him paid into the treasury, for which he produces and files with the Comptroller the Treasurer’s duplicate receipt. Code, 207, sub-sec. 10.
    This plea, then, to be good, must aver that the defendant passed his account with the Comptroller, and obtained his warrant to pay into the treasury the sum he alleges he paid, and that he then produced and filed with the Comptroller the Treasurer’s duplicate receipt for the money. It does not discharge him that he has paid the money to the person holding the office of Treasurer. He might as well pay it to me, or to' the Governor. He must pay it according to the forms of law. These are not empty forms. The mode of keeping the accounts of a State are matters built upon experience. The money is in the pocket of William Morrow, until that warrant issues, authorizing the collector to pay the money. The Comptroller is then notified that so much money is to be paid, and he knows what the Treasurer is entitled to. Of this he makes entry on his book. The money is then paid to the Treasurer, who, by means of this warrant, is notified what to receive, and on what account to credit. He then gives the collector his duplicate receipts for the amount, and the collector keeps one, and goes back to the Comptroller with the other. He is then entitled to his credit, and not until then, for not till then is his duty of officer performed. Not until then has the State any evidence on which to charge the Treasurer, and until that is done the money is at the risk of the man who pays it, and not of the State.
    • The Comptroller is a constitutional agency of the State as much as this court, has his functions to perform, and ought to be considered by the courts in the scope of his constitutional function. It is to guard the treasury. To do this he must know what , is in the treasury. To know it he must not be ■ dependent upon the notice of the Treasurer, but upon the interest of those who make the payments. This, the law imperatively requires, and the payment is not properly made, and the party is not discharged without it. ' In other words, it is no legal payment. The- collector has not complied with his’ bond until he has paid it in this way. . The bond is two-fold: 1. To account for, i. e. to the Comptroller, and 2. To pay over to the Treasurer all State revenue by him collected. Where is the evidence of this accounting for, and paying over, and paying over according to the forms? Where is that warrant? The Treasurer has it or has returned it to the Comptroller. It is a public record. Where is the receipt that the collector had? He does not offer that; it would recite the warrant. But if he had that receipt, where is that duplicate? If he produces it, it would show that he had not deposited it with the Comptroller to get his credit, and to enable the Comptroller to charge the Treasurer. But we have here the evidence that he has not delivered it to him. The Comptroller is the keeper of his own records. His entries are records; the records of a constitutional office, entitled to the highest degree of credit, as evidence of what he has done as Comptroller, and that evidence shows that the collector has filed no such evidence of payment with him. If he had, it would be credited on his statement. The collector offers to prove the payment by parol. The court excludes the evidence. It is simply an offer to prove a record by parol. Suppose the collector handed to Wm. Morrow $1,089.06, that, does not discharge him. He does not offer to prove that he produced to him a payable warrant, for $1,089.06. He does not show or offer to show that he took his duplicate receipt. He does not offer to show that he filed the one and now has the other. If he proved the payment, it was nothing without these things. If he offers to prove it by itself, it was not error to refuse it, unless it was accompanied by the offer to prove it by the paper evidence, or to account for the loss of the primary evidence.
    
      I want to go one step further. The Comptroller, as I have said, is the constitutional accountant of the State. I maintain, that to make the Circuit Judges the accounting officers — to make juries the accounting officers — is not the policy of the State; more than that, it is not constitutional. The Comptroller’s constitutional functions are no more to be usurped by courts, than the functions of the Judges are by the Legislature. His constitutional duty is to account with officers of the revenue. The court may transfer this constitutional duty, which is, by the Constitution, devolved upon one man, to the twenty-four Circuit and Criminal Judges of the State. But to do so, would be to do two things: violate the Constitution of the State, and set back the fiscal administration beyond the age of Clovis or Charlemagne; not to attain any good, but to ruin the revenue, and destroy the credit and resources of the State, by sapping the foundations of accountability and responsibility.
    The constitutional officer is required to make these settlements, and the collectors are required to obtain their credits with him. Unless this is done, the constitutional mode of accounting for the people’s money is violated, the constitutional guard upon the treasury is lost. Where the collector complies with his duty, it is not possible for him to be without protection. He can' show by the Treasurer the payment and the warrant, and it is not possible for the Comptroller to refuse him the credit. If the collector has lost his receipt, he has but to take his reserved copy to the Comptroller and file that, taking the Comptroller’s statement of the fact, or go back to Treasurer and procure a triplicate receipt. There is no possibility of any mistake or omission if the collector does his duty. The Treasurer’s books -will always show the payments to him, if regularly made, and from that new receipts can always be obtained. If filed with the Comptroller and not credited, it is only necessary to look to the account of the Treasurer, to see that the Treasurer has been charged with the sum, and then the collector is at once entitled to the credit. There is no danger in leaving these accounts to the constitutional agency, on whom they properly devolve. On the other hand, let Mr. Woods come in before a jury, and swear, perhaps honestly; what guaranty have we against error? Keeping his accounts loosely, with much negligence about collection, the collector may think he has paid over every cent that in his careless way of collection he has received, and he cannot understand how he is behind hand, when the failures to collect sufficiently account for the deficit. He comes in ready to swear that he has paid it all over. Five minutes, with the Comptroller present, would suffice to convince him that he is wrong. But that officer cannot be at his office, and at the same time in the ninety counties of the State. District Attorneys in different parts of the State have no means to meet such statements, whether innocent or' corrupt, and the consequence is injustice. Now, what hardship is there if the officer, whose bond requires him to account with the Comptroller, and pay over to the Treasurer, when he is told by the District Attorney, that he is instructed to make the motion, is required to examine the account, and to correspond with the Comptroller, and obtain a correction, if any credit is omitted?
    The District Attorney has the Comptroller’s statement. The collector must look into it. If it is wrong, he must write to the Comptroller, and show him what sum he has omitted, when he handed him the duplicate, or in what letter it was enclosed to him. If he cannot find it, ask him to see the Treasurer, and he will find it on his books. Ask him to look at his receivable warrant No. -, and he will see that he ordered it to be paid. Then look at the Treasurer’s account, and he will see it charged there; send a copy of the receipt retained; lastly, examine the Treasurer’s books; if it cannot be found, then take the Treasurer’s duplicate receipt to the Comptroller, and see him charge the Treasurer with it. Such is the system of the law — such the constitutional idea. Suppose the party has actually made the payment, and filed his duplicate and lost his receipt, and that there is no trace of the receivable. warrant, and it is a loss to him, (a thing which can never happen.) But suppose it to happen — such things happen in courts; hard cases occur in which injustice is done, and yet the courts say it is better for individual cases of hardship to arise, than that the law should- be rendered uncertain and all rights insecure. Would it be any worse if such a thing should happen at the treasury? It never can happen. If it should even pass judgment, still the Legislature has made it the duty of the Comptroller to allow any credit which has not been given on the judgment. You can not tie him up so that he can not do justice. You have no right to suppose that he has any disposition not to do it, for his office stands upon as high a footing of constitutional and legal sanction, as that of this court itself. The office of Treasurer, and of Chancellor of the Exchequer, stands in all countries on a footing with the highest judges. The Lord Chancellor and Lord Treasurer of England, are the highest officers of the realm, taking precedence of the judges: 1 Bl., 230. He has here a high prerogative to do justice, when the hands of a court- would be tied by self-imposed rules. It is not possible in the nature of things, that any officer acting honestly and faithfully, shall pay his money, and comply with thé law, and not obtain his credits, and it is better that many of them should lose something unjustly, rather than the whole revenue system should be destroyed.
    Look to the number of cases here at this term, and see how important the policy is. We have here at this term, more cases, than have ever come up in the whole State since your honors’ term began — the result of the opinion in Allison’s case. How is it? This system brings causes to trial; it defeats false excuses; it forces.the officer to make his settlement with the constitutional officer; it deprives him of false pretences for continuance. Shall we destroy the good effects of this wise system, and set back the dial to the time before the flood — the old system of false excuses, delay and trick ?
    
      
       It results that the duplicate in the Comptroller’s office, must also be accounted for, before parol evidence is admissible.
      
        
        This warrant is in the following form:
      Receivable Warrant.
      No. 7,320. Office of the Comptroller of the Treamni,
      
      Nashville, Tenn.,---187 — .
      The Treasurer oe the State of Tennessee, will receive from John Brown, Three Hundred Dollars, due from him on account of revenue as clerk of the County Court of Campbell county. $300. John C. Burch, Comptroller.
      
    
    
      
       The receipt is in the following form:
      $300. State Treasury Department,
      Nashville, Tenn., April 1, 1873
      Received of John Brown Three Hundred Dollars, the amount ol Compt. Ree. Warrant No. 7,320 due from Mm on account of State Reve nne by him collected, as Revenue Collector of Campbell county.
      [Signed Duplicate.] W. Morrow, State IDreaswrer
      
    
   McFarland, J.,

delivered the opinion of the court.

This was a motion by the State, for judgment upon the bond of James E. Wood, clerk of the County Court of Gibson county, for a balance of the public revenue of $1,089.06, with interest and damages claimed to be due the State. Judgment was rendered for the State, and the defendants have appealed.

The evidence offered and heard in behalf the State, was the Comptroller’s statement of the amount claimeá, duly made out, and certified in accordance with sections 731, 732 of the Code. This was prima facie evidence, and in the absence of other legal countervailing evidence, the State was entitled to judgment for the amount. The only evidence offered by the defendant, is stated in the bill of exceptions as follows: “The said defendants then offered to prove by Jas. E. Wood, that before this motion was made, and before he was notified thereof, that he did pay to the Treasurer of the State of Tennessee, the said sum of $1,089.06, as he had all other sums with interest and costs due or owing from him, to the State Treasurer, on any and every account, and that he does not owe the State anything whatever.” The Attorney General objected to the competency of the evidence, and the objection was sustained, and the question is, was this error? Section 229 of the Code enacts that “The Treasurer, shall receive of the several collectors of public revenue, all taxes accruing to the State, and all other public moneys payable into the treasury, but not until the party bound to pay the. same, has passed his account with the Comptroller, and obtained his warrant to pay into the treasury, the sum found due from him.” Code, 207, in enumerating the duties of the Comptroller, among other things enacts, sub-sec. 10, that he shall keep a regular account with every person in the State authorized to collect revenues, charging him with all sums received, and crediting him with all sums, paid into the treasury, for which he produces and files with the Comptroller the Treasurer’s duplicate receipt.

These provisions are intended to furnish the Comptroller’s office with evidence of all moneys paid into the treasury.

The collector must settle with the Comptroller, and obtain his warrant to pay the money into the treasury, and then he must pay the money to th.e Treasurer, and take his receipt in duplicate; one copy to be retained, the other to be filed with the Comptroller; upon this being done, the collector is entitled to a credit. These are not unmeaning forms, they are positive requirements of the law. The collector has no right to disregard them. The money is not paid into the State treasury without these provisions being in substance complied with, although it may, in fact, be paid to the individual holding the office of Treasurer. If it be paid into his hands, otherwise than above required, it is in his hands as an individual, and not as Treasurer of the State. We do not say that in certain events, all these facts may not be proven by parol, but we understand that the proposition simply was to prove by the collector himself, that he paid the money to the State Treasurer before notice of the motion. He did not propose to prove that he paid it in the manner specified above, or that he complied with the law as to the warrants and receipts.

Again, if the collector took the receipt of the Treasurer as required, why is it not produced, or its absence accounted for ? These receipts stand upon a different footing from ordinary receipts for the payment of money between individuals. They are required by law to be taken; they are made the statutory evidence of the payment of the money, as required by law, and for valid reasons. It would be of great public inconvenience for the Treasurer to leave his office, and attend the Circuit Courts to oppose his parol evidence to that of the collector, and settle these questions upon the memory of these or other witnesses. The law provides that the receipts shall be taken, and they must be produced, or their absence accounted for in the regular way. Nothing short of this will charge the public treasury with the money. There was no error in the ruling of the Circuit Judge, and the judgment will be affirmed.  