Cox v. Board of Supervisors

Opinion. Cooper, J.: Appellant brought this action against the Board of Supervisors of Lincoln county to recover from the county the sum of $23,474.4:1. There are four counts in the declaration, the first of which charges that the plaintiff was in the year 1873 elected to the office of sheriff of said county for the term beginning January 1, 1874, at which time he entered upon the discharge of his official duties; that at the time of the beginning of his term there remained due and uncollected a large portion of the taxes for the year 1873, which was collected by him; that in making such collections he received from the tax-payers in warrants of the county, which were not by law receivable in payment of taxes, the sum of $13,784.39; that to make good the deficiency caused by his having received these warrants, he paid to the county treasurer the amounts of said warrants in cash, and also paid to him the warrants so collected, which were by the proper authorities of the county appropriated to the use and benefit of said county. The second count states a like collection of taxes for the year [132] 1874, to the amount of $9,690.02, in non-receivable warrants, and a like payment of both the warrants and an equal amount in money into the county treasury, and an appropriation thereof by the county authorities to county uses. The third count is for money had and received by the county for the plaintiff; and the fourth is for money paid out and expended by him for the use and benefit of the county. The declaration concludes with an averment that the claim of the plaintiff had, before the institution of the suit, been presented to defendants, “who on the 10th day of March, 1880, by an order entered on their minutes, received and approved the claim, but refused to allow and pay the same.” The defendants demurred to the declaration, because the payment was voluntary, and because the county could not, by express agreement, incur the obligation attempted to be enforced. The demurrer was sustained and the suit dismissed, and from this judgment the plaintiff appeals. The facts stated in the first and second counts do not show a payment by the plaintiff to the creditors of the county of the debts represented by the warrants, or an extinguishment of the claims against the county. The plaintiff was the agent of the county to collect the taxes due it, which taxes were not payable in the warrants which the tax-payers held. The plaintiff, however, without authority of law, received the warrants, and thereby became liable to the county for the amount in cash. The delivery of the non-receivable warrants to the tax-collector by the' tax-payers, it is true, did not operate as a payment of the taxes between them and the county, which might have proceeded to enforce payment according to law. But the collector was also liable for malfeasance and nonfeasance; malfeasance in receiving non-receivable warrants, and nonfeasance in failing to collect that which ought to have been collected. If, however, the tax-collector paid to the county the amount it was entitled to receive, he became the creditor of the county as to the debts evidenced by the warrants. Where warrants are receivable for taxes, their payment to the tax-collector by the tax-payer operates as a payment of the warrants by the county, because the debts evidenced by them are cancelled by the debt from the tax-payer to the county; after such payment the warrants in the hands of the tax-collector are not demands against the county, but are mere vouchers, showing the amounts for which he is entitled to credit in his settlement with [133] the county. But if the officer pays in cash the amount of the warrants, can it be said that the warrants are no longer existing claims against the county? It has received its money, all it was entitled to have; it has given nothing in discharge of its obligations, and they still exist. If the warrants were still in the hands of the tax-collector, he would, without question, have the right to enforce their payment. The surrender of them in the manner stated in the declaration did not relieve the county of its legal obligation to pay; and where that exists the board of supervisors have authority to issue warrants in settlement thereof. The judgment is reversed and cause remanded, to be proceeded with in accordance with the views announced in this opinion.