Thompson v. Stickney

ORMOND, J. It is a general rule of law, that an agent, acting for a known principal, and receiving money in that character, is not individually responsible if the money has been paid over to his principal without notice. That revenue officers or tax collectors form no exception to this rule, is shown by the case of Greenway v. Hurd, [4 Term, 553.] As it respects the fifty-three licenses, issued after the passage of the revenue law of February, 1843, the proposition above stated has no application. The revenue act of February, 1843, had declared that the licenses which the county clerk issued, should be a State tax. [See the 7th section of the act.] The act operated from its passage, and it can make no difference that the clerk, at the time he received the money, did not know that the law had passed. He is the proper person to issue the license, and receive the money; and is required by law to pay the money over to the collector for the purpose of being paid into the State treasury. [Clay’s Dig. 571, § 75, 76.] For the amount, therefore, received on the fifty-three licenses, he is not responsible to the county treasurer. The sum received on the seventeen licenses, by the verbal direction of the commissioner’s court, stands upon a different footing; and to that, the law laid down at the commencement of this opinion, does apply. The 15th section of the revenue act of February last, authorizes the commissioners’ court to levy a tax, for county purposes, on the subjects of State taxation, not to exceed thirty per centum on the amount. It cannot be pretended, that the mere verbal direction of the court to the clerk to collect thirty per centum on licenses issued by him for county purposes, is the levy of a tax. The amount to be assessed is discretionary with the court; and until the amount to be demanded on the State tax is recorded on the minutes of the court, the tax is not levied, and there is no warrant in law for exacting it from the citizen. But although collected without legal authority, it was received by the clerk in virtue of power derived from the commissioners’ court; and as it does not appear to have been demanded from him by those from [581] •whom it was received, he cannot refuse to pay it over to his principal, by whose authority he received it. It results from the view here taken, that the court below erred in its judgment, that the entire amount could be recovered by the county treasurer; and its judgment is, therefore, reversed, and the cause remanded.