People v. Otto

Searls, C. J. This is an appeal by the defendants, William M. Waggle, J. L. Lake, and James K. Johnson, sureties on the bond of William H. Otto, sheriff and ex officio tax collector of the county of Del Norte, from a judgment against them for $1,769.31, on account of taxes collected by said Otto for the fiscal year ending July 1, 1885. »

Judgment was rendered upon the pleadings as to the appellants, and upon the default of defendant Otto.

The complaint is not verified. The answer sets out by denying generally all the material allegations of the complaint, “except such allegations as are hereinafter admitted, stated, or qualified.”

• It is admitted that Otto was tax collector, and that defendants executed jointly and severally with one Hamilton the bond in question.

A material part of the answer is in the following language:—

' “ 14. Defendants allege that they are informed and believe, and therefore aver the same to be true, that subsequent to the fifteenth day of November, 1884, and prior to the second day of January, 1885, one Robert Jenkins, acting as under-sheriff of said county, did collect a large amount of state and county taxes from divers persons, tax-payers in said county, for the fiscal year [47]ending July 1,1885, to wit, the amount of $1,769.31, and receipted for the same by signing the name of William H. Otto, tax collector, ‘by Robert Jenkins, under-sheriff/ without right or authority of law so to do.”

As Robert Jenkins is averred to have acted as under-sheriff, and there being no allegation that he wrongfully acted as such, it may properly be inferred that he was de jure as. well as de facto the under-sheriff of defendant Otto.

“That a person acting as a public officer was regularly appointed to it,” is one of the presumptions of law established by .the Code of Civil Procedure, section 1963, subdivision 14.

“That official duty has been regularly performed,” is another presumption, established by subdivision 15 of the same section.

The question then is, Had Jenkins, as under-sheriff, authority to collect the taxes in question and receipt for the same in the name of Otto, the tax collector, so as to bind the latter and his bondsmen ?