Board of Commissioners v. State ( 1861 )

Stratton, J.

Tbe whole question turns upon tbe construction to be given to chapter 1 of tbe statutes of this State, in relation to tbe assessment and collection of taxes, or so much of it as pertains to tbe subject in controversy; and whatever may have been tbe practice, for there is a statement in tbe answer as to what that has been, tbe matter seems free from all doubt or embarrassment. Sections 27, 28 and 29, after directing in what manner tbe assessments shall be made in tbe several counties, and returned to tbe territorial auditor, provides, that tbe territorial auditor shall make an estimate of tbe tax to be collected in each county, for territorial purposes ; that be shall make out and deliver, to the territorial treasurer, certified copies of such statement; and that tbe territorial treasurer shall also charge tbe respective counties with tbe amount of tax so ascertained to be raised in each. Section 46 is in these words: “ On or before tbe first Monday in February, in each year, tbe several county treasurers in this territory shall pay over to tbe territorial treasurer, in gold and silver coin, tbe amount of territorial taxes charged to their respective counties.” It is important to note tbe phraseology of these sections, as fixing tbe relations of tbe counties and of tbe State—the one becomes a debtor, and tbe other a creditor, for tbe amount charged / and on tbe day when tbe law has fixed the time of payment, it is a debt due, and can be discharged only by payment, not in part, but in full, as all other debts, are discharged. Unless the law so provides, neither the county nor the county treasurer can burden it with any expenses of collection, no more than A. can demand of B. a drawback or per centage, for the payment of a debt which A. owes to B. But it is urged by the plaintiffs in error, that under section 14 of an act relating to county treasurers, O. S.,j>. 423, the treasurer is entitled to the four per cent, for receiving and disbursing of this amount of money, and that is true; but he must look to his principal, the county, whose agent he is for that compensation; and the last clause of this section provides, that he shall receive the above per cent. “ on all moneys paid out by him for the county.” The act, in which this 14th section is found, has no reference or relation to any act or duty which he is compelled to do on behalf of the State, and, as a matter of course, cannot charge the State for services performed for the county. ' In the event that this court should take a different view of the law from that above stated, several alternative questions were discussed at the bar, upon which it is not now necessary to pass.

Judgment is affirmed.