additional duties imposed by subsequent legislation, as those existing when the bond was given.1 For any delinquencies occurring before or after the time for which the sureties are bound, they are not liable; 2 but they are liable for money in the official possession of the collector at the time the bond was given, though it was collected before that time.3 It must be shown that the collector actually received the money for taxes and failed to account for it, to establish the liability of his sureties; it is not sufficient to establish a mere commitment of the tax list to the collector and his failure to account.4 Where the bond is voluntarily executed, it becomes a valid requires a special bond, expressly to cover said collection. And see also State v. Starres, 5 Lea (Tenn.) 545. 1. Morrow v. Wood, 56 Ala. 1; Board of Education v. Quick, 99 N. Y. 138. Compare Brewer v. King's Sureties, 63 Ala. 511. In Dawson v. State, 38 Ohio St. 1, it was held that where a bond is conditioned for the faithful performance of the duties "according to law," it embraces whatever duties are required of the officer during the term covered by the bond, whether the statute requiring them was passed before or after the execution of the bond. In State v. Bradshaw, 10 Ired. (N. Car.) 229, the court held that where a statute requires a bond from an officer, for the faithful discharge of his duty, and a new duty is attached to the office by statute, such bond, given subsequently to the latter statute, embraces a new duty and is a security for its perform ance; unless where, when the new duty is attached, a bond is required to be given specifically for its performance. See also Cameron v. Campbell, 3 Hawks (N. Car.) 285; Crumpler v. Governor, 1 Dev. (N. Car.) 52; Governor v. Barr, 1 Dev. (N. Car.) 65; Governor v. Matlock, 1 Dev. (N. Car.) 214. 2. Conover v. Middletown, 42 N. J. L. 382; Patterson v. Freehold, 38 N. J. L. 255; Farrar v. U. S., 5 Pet. (U. S.) 373. In Wilson v. Glover, 3 Pa. St. 404, it was held that an agreement to discharge a surety of a tax collector and accept another in his place, does not discharge him, until the agreement has been performed, and the substituted surety has given bond, the new security being required to be one which would have been good, if given in the first place. Misapplication of the Funds After They Have Reached the Treasurer.— Thus, the sureties are not liable for a misapplication of the funds after they have legally reached the treasurer. State v. Middleton's Sureties, 57 Tex. 185; Hetten v. Lane, 43 Tex. 279; People v. Smith, 12 Ill. 281; U. S. v. January, 7 Cranch (U. S.) 572; U. S. v. Boyd, 5 How. (U. S.) 48: U. S. v. Girault, 11 How. (U. S.) 2S; Jones v. U. S., 7 How. (U.S.) 681; Pickering v. Day, 2 Del. Ch. 333; Boring v. Williams, 17 Ala. 525; Porter v. Stanley, 47 Me. 515; Miller v. Com., 8 Pa. St. 444; Lyndon v. Miller, 36 Vt. 329; Chapman v. Com., 25 Gratt. (Va.) 742. See generally, SURETYSHIP, vol. 24, p. 714. For What Sureties are Liable.-Where each of the sureties of a tax collector has obligated for a specific sum, each can be held for that sum only, and all of them can be held for no more than the full amount due by the collector to the estate. Vermilion Parish v. Brookshier, 31 La. Ann. 736. When the same person is town collector and town treasurer, and as treasurer pays to the state treasurer the school fund and school tax, and charges it as paid by him as collector, and it is allowed to him in his settlement of collections, the town cannot hold the sureties on his collector's bond therefor. Norridgewock v. Hale, So Me. 362. 3. Conover v. Middletown, 42 N. J. L. 382. 4. Boothbay v. Giles, 64 Me. 403; Trescott v. Moan, 50 Me. 347; Cheshire v. Holland, 13 Gray (Mass.) 321. To determine the liability of the bondsmen of a tax collector, it is necessary to ascertain what tax bills were delivered to him during the time named in the bond, the amount collected by him on the same, and when collected, security for taxes, and the sureties are bound thereby, even though the bond is not required by law. The acceptance of the bond is a sufficient consideration to cover all official delinquencies.2 The bond is binding, whether the collector is an officer de jure or de facto.3 The general rule that an extension of time granted to a principal debtor by the creditor, without the consent of his sureties, operates to discharge them, does not apply to the sureties on the bond of a collector, for the reason that an extension of time for the collection of taxes is regarded as beneficial to the sureties.4 6. Compensation of Collectors (See also PUBLIC OFFICERS, vol. 19, p. 378). It is for the legislature to fix the compensation of collectors, and they are entitled only to those fees and costs which are expressly given them by law; and this is true, not the amount paid by him to the treas- 2. Boothbay v. Giles, 68 Me. 160. And see Trescott v. Moan, 50 Me. 347; Scarborough v. Parker, 53 Me. 252. 3. Waters v. Edmondson, 8 Heisk. (Tenn.) 384; Vermilion Parish Brookshier, 31 La. Ann. 736. υ. A condition in a collector's bond that the principal obligor shall well and faithfully execute his office as collector, estops the sureties upon the bond, as well as the collector himself, from denying that the principal obligor had been appointed collector. Billingsley v. State, 14 Md. 369. A collector's bond, perfect on its face, containing no conditions, cannot be avoided by the sureties, upon the ground that they signed it on condition that it should not be delivered unless it was executed by another person who did not sign. Richardson v. Rogers, 50 How. Pr. (N. Y.) 403. The condition of the bond securing the faithful collection of the public taxes, given by a sheriff in September, 1874, who was elected the preceding August, embraces the taxes to be collected for the fiscal year preceding the 1st of April, 1875, and not the taxes due and collected for the year ending April, 1874. The collection of the latter is secured by his former bond, if he was sheriff at that time. State v. McNeill, 74 N. Car. 535. 5 In State v. Baldwin, 14 S. Car. 135, where there was no law limiting the tenure of office of the county treasurers, a county treasurer and the sureties on his official bond were held liable for a defalcation committed by said treasurer more than two years after the execution of the bond. 4. See Cooley on Taxation, p. 502; State v. Carleton, 1 Gill (Md.) 249; Crawford v. Richeson, 101 Ill. 351; Bennett v. McWhorter, 2 W. Va. 441. But see Johnson v. Hacker (Tenn. 1874), 2 Cent. L. J. 625; State v. Roberts, 68 Mo. 234. The renewal of a warrant for the collection of taxes, extending it beyond the time originally fixed for its return, will not release the sureties on the official bond of the collector. Olean v. King, 116 N. Y. 355. 5. State v. Brewer, 64 Ala. 287; Miner v. Solano County, 26 Cal. 115; Solano County v. Neville, 27 Cal. 465. And see Com. v. Scott, 7 Pa. Co. Ct. Rep. 409. The power to fix the compensation of local and municipal officers is often delegated to the board or body to which is intrusted the transaction of local and municipal affairs. See Hughes v. People, 82 Ill. 78; Broadwell v. People, 76 Ill. 554. Where the questions upon which a collector's right to commissions depend, are left to his discretion, his determination is binding upon the courts. San Mateo County v. Maloney, 71 Cal. 205. Excessive Fees.-In Garber v. Conner, 98 Pa. St. 551, it was held that an officer who has no right to charge fees of any kind, is not subject to a penalty withstanding that in a particular case the fees provided by law are not adequate compensation for the work done.1 Where the sheriff or treasurer is ex officio collector, and his compensation is fixed as sheriff or treasurer, he is not entitled to any additional compensation as collector.2 Where there is no provision as to the fees of a collector, they are generally to be determined by the auditing body of the state or municipality imposing the tax.3 The collector sometimes receives a fixed salary; 4 but the more usual method of compensation is the allowance of commissions proportionate to the amount collected.5 These commissions are sometimes allowed to be deducted from the taxes collected, in imposed upon officers taking greater or other fees than those provided for by law. Where the accounts of the collector have been settled, and through inadvertence he has credited himself with excessive commissions, his accounts may be readjusted, and the same proceedings may be taken against him to compel him to refund, as are admissible to recover a balance of the amount collected. Wilson v. State, 51 Ark. 212. A collector is entitled to retain only his original costs and commissions, though the taxpayer is required to pay double the amount of taxes, costs, and commissions, in order to effect a redemption. Ramsey v. State, 78 Tex. 602. 1. Labette County v. Franklin, 16 Kan. 450; Thralls v. Sumner County, 24 Kan. 594; Miner v. Solano County, 26 Cal. 115; Board of School Com'rs v. Wasson, 74 Ind. 134; Treasurers v. Burger, 3 Rich. (S. Čar.) 357; Garber v. Conner, 98 Pa. St. 551. And see Richmond v. Brown, 66 Me. 373; People v. Besson, 6 N. Y. Supp. 135; 53 Hun (N. Y.) 632; Gilchrist v. Wilkesbarre, 142 Pa. St. 114; People v. Long, 13 Ill. 629. If a sheriff receives interest on tax money deposited by him in a bank, it is a perquisite derived from his office, and he cannot retain it in addition to the compensation allowed him by the county board. Hughes v. People, 82 Ill. 78. In Treasurers v. Burger, 3 Rich. (S. Car.) 357, it was held that commissioners of the poor cannot allow, for collecting the poor rates, a higher percentage than that fixed by law, but may allow the collector, for services not within the scope of his duties as collector, a further compensation. 2. Hughes v. People, 82 Ill. 78; Broadwell v. People, 76 Ill. 555; Price v. Adamson, 37 Mo. 151; Lane v. Coos County, 10 Oregon 124. 3. State v. Baldwin, 14 S. Car. 135. And see Shaver v. Robinson, 59 Ala. 195. They cannot be determined by the verdict of a jury. State v. Baldwin, 14 S. Car. 135. Fees for Collection of State Tax-Fees allowed a city officer for the collection of a state tax are not the property of the city. Bright v. Hewes, 18 La. Ann. 666. 4. See Castle v. Lawlor, 47 Conn. 340; Board of School Com'rs v. Wasson, 74 Ind. 134; People v. Besson, 6 N. Y. Supp. 135; 53 Hun (N. Y.) 632. A statute giving a collector a certain sum for collecting taxes, in lieu of all other compensation, means that he is to receive that sum for his services for one year, and not for the collection of all the taxes that become payable during the year, and he is therefore a salaried officer. Castle v. Lawlor, 47 Conn. 340. 5. See State v. Drew, 16 Fla. 303; Gorman v. Boise County, 1 Idaho 647; Fountain County v. La Tourette, 60 Ind. 460; Randolph County v. Trogdon, 75 N. Car. 350; Garber v. Conner, 98 Pa. St. 551; Com. v. Scott, 7 Pa. Co. Ct. Rep. 409; Davidson County v. De Grove, 2 Coldw. (Tenn.) 494. The fees are sometimes the same as those allowed executive officers for collection under execution. See Labette County v. Franklin, 16 Kan. 450; Thralls v. Sumner County, 24 Kan. 594; Board of School Com'rs v. Wasson, 74 Ind. 134. 6. See Shaver v. Robinson, 59 Ala. 195; Wilson v. State, 51 Ark. 212; Waycross v. Board of Education, 87 which case each tax must bear the expense of its own collection.1 But the commissions are usually added to the tax and collected from the taxpayer, unless otherwise expressly provided for.2 Where the commissions are to be collected from the taxpayer, no liability attaches to the state therefor, and where, at a sale of land for taxes, the land falls to the state, the collector is entitled to no fees.3 A defaulting collector is, of course, entitled to nothing for his services.4 And when no services have been rendered, there can be Ga. 22; Jonas v. Cincinnati, 18 Ohio 318. Under the Tennessee statutes, where lands sold for unpaid taxes are bid off by the collector in the name of the treasurer as superintendent of public instruction, for the use of common schools, the fees are paid to the officers out of the common-school fund by the treasurer on the warrant of the comptroller. Akers v. Burch, 12 Heisk. (Tenn.) 606. Priority of Claim.-Under the Nevada revenue act, the auditor, assessor, and tax collector are preferred creditors, and entitled to their pay for assessing and collecting the taxes before the money collected is distributed among the several funds to which it properly belongs. Grimes v. Goodell, 3 Nev. 79. 1. In Shaver v. Robinson, 59 Ala. 195, it was held that even though the constitution requires that the money derived from the poll tax shall be applied exclusively in aid of the publicschool fund, it must nevertheless bear expense of its own assessment and collection. And the auditor has no power to direct a tax collector to retain from a poll tax collected during the current year, the commissions earned by collecting a poll tax from a preceding year. See also State v. Drew, 16 Fla. 303; Waycross v. Board of Education, 87 Ga. 22; Davidson County v. De Grove, 2 Coldw. (Tenn.) 494. In Bagley v. Shoppach, 47 Ark. 72, it was held that tax collectors are entitled to a fee for a certificate of each tract sold, even though they include several tracts in one certificate upon request of the taxpayer. 2. See Board of School Com'rs v. Wasson, 74 Ind. 134; Garber v. Conner, 98 Pa. St. 551; State v. Guilbeau, 37 La. Ann. 718; Payne v. Washington County, 25 Fla. 798; State v. Brewer, 64 Ala. 287; Merrill v. Marshall County, 74 Iowa 24; Thralls v. Sumner County, 24 Kan. 594; Cheever v., Merritt, 5 Allen (Mass.) 563; Seidenstricker v. State, 2 Gill (Md.) 374; Fitch v. Elko County, 8 Nev. 271; State v. Gaines, 4 Lea (Tenn.) 352. But see to the contrary, Jonas v. Cincinnati, 18 Ohio 318. In Board of School Com'rs v. Wasson, 74 Ind. 134, it was held that commissions of tax collectors, which are collectible out of the property of the taxpayer, can be deducted from the amount of the tax, interest, and penalty, only when the sum realized is insufficient to pay both the tax and the commissions. Increase or Decrease of Rate.-In People v. Lee, 28 Hun (N. Y.) 470, it was held that a constitutional provision prohibiting the increase or decrease of fees, percentages, or allowances of public officers during their term of office, does not prevent the exemption of taxpayers from the payment of fees in addition to the tax, such fees being payable in the first instance by the taxpayer, and not by the government. 3. State v. Brewer, 64 Ala. 287; State v. Kinne, 41 N. H. 238; Dean v. State, 54 Tex. 313. See also Miner v. Solano County, 26 Cal. 115. Compare Payne v. Washington County, 25 Fla. 798; Akers v. Burch, 12 Heisk. (Tenn.) 606. Each Subject Must Pay Its Own Expense.-Where lands of several nonresidents are advertised in the same advertisement, to be sold for taxes, the collector cannot legally exact the whole expense from one of them; and if he does so, he is liable in an action of assumpsit for the recovery of the excess. Findley v. Adams, 2 Day (Conn.) 369. 4. Vermilion Parish v. Brookshier, 31 La. Ann. 736. Other officers who have performed services and incurred expenses, are entitled to their fees, notwithstanding the fact that the sales made by the collector were void through his disregard of statutory regulations. Akers v. Burch, 12 Heisk. (Tenn.) 606. no claim for commissions.1 Where the statute allows commissions upon collections actually made, no compensation can be recovered for expenses incurred in ineffectual efforts to collect.2 Ordinarily, however, reimbursements for reasonable and necessary expenses will be allowed.3 Where the commissions or fees are payable by the government, claims therefor are generally required to be audited by a designated officer before they become a public liability. Where the fees are added to the tax and collected from the taxpayer, the same methods are pursued for their collection as for the collection of the tax itself.5 1. See Wheatley v. Covington, 11 Bush (Ky.) 18; Labette County v. Franklin, 16 Kan. 450; Vermilion Parish v. Brookshier, 31 La. Ann. 736; Anderson v. Hawks, 70 Miss. 638; Smith v. New York, 37 N. Y. 518. In Com. v. Scott, 7 Pa. Co. Ct. Rep. 409, it was held that a collector is not entitled to commissions on an abatement allowed by law to the taxpayer for prompt payment. In Randolph County v. Trogdon, 75 N. Car. 350, it was held that an outgoing sheriff is entitled to the commissions on the amount of taxes he pays over to his successor in office, and that such successor is not entitled to commissions thereon. See also Bright v. Hewes, 18 La. Ann. 666. In Boggs v. Placer County, 65 Cal. 561, it was held that a tax collector can recover fees only for taxes collected by himself, and not for taxes recovered by a suit brought by the district attorney on behalf of the county. In Aplin v. Baker, 84 Mich. 113, it was held that a delinquent taxpayer is not liable for the expense of unnecessary trouble in serving several different subpœnas issued by a county clerk against several distinct lots owned by the taxpayer; he is liable for the cost of one subpoena only. 2. Gordon v. Lafayette County, 74 Mo. 426; Thralls v. Sumner County, 24 Kan. 594; Titus v. Howard County, 17 Kan. 363; Labette Co. v. Franklin, 16 Kan. 450; Miles v. Miller, 5 Neb. 269. And see Gilchrist V. Wilkes Barre, 142 Pa. St. 114. In Wheatly v. Covington, 11 Bush (Ky.) 18, it was held that a tax collector cannot recover damages because he has been prevented from performing the services of his office, whereby he would have earned the compensation attached thereto. In Aldrich v. Pickard, 14 Lea (Tenn.) 456, it was held that the compensation of a collector who sells land for taxes, does not depend upon the validity of the sale. 3. See Joslyn v. Tracy, 19 Vt. 569; People v. Long, 13 Ill. 629; Titus 7. Howard County, 17 Kan. 363; Carville v. Additon, 62 Me. 459; Gilchrist v. Wilkes Barre, 142 Pa. St. 114; Titus v. Howard County, 17 Kan. 363; Thatcher v. People, 79 Ill. 597; Taylor v. Umatilla County, 6 Oregon 402; O'Grady v. Barnhisel, 23 Cal. 287. In Philadelphia v. Flanigen, 47 Pa. St. 21, it was held that a receiver of taxes has no power to bind the state for advertising fees in excess of the amount appropriated therefor, or to advertise otherwise than as directed by the council. 4. See PUBLIC OFFICERS, vol. 19, pp. 378, 537. And see also Mathesie v. Knox County, 82 Ind. 172; Shaver v. Robinson, 59 Ala. 195; State v. Brewer, 64 Ala. 287; Akers v. Burch, 12 Heisk. (Tenn.) 606. Where the county treasurer, by mistake or otherwise, retains a less per cent., for making a collection, than he is entitled to, he is entitled to an order from a county board for repayment of the amount to which he was entitled, in excess of the amount actually retained. Harrison County v. Benson, 83 Ind. 469. But if the commissioners of a county allow an excessive claim for printing the delinquent list, the same cannot be recovered back, where the list was before them, and there was no mistake of fact. Warren County v. Gregory, 42 Ind. 32. 5. See Board of School Com'rs v. Wasson, 74 Ind. 134; Thralls v. Sumner County, 24 Kan. 594; Baker v. Kelley, 11 Minn. 480; Wilcox v. Gladwin, 50 Conn. 77. |