Day, 2 Del. Ch. 367; Boring v. Williams, 17 Ala. 525; Porter v. Stanley, 47 Me. 518; Wilkinson v. Bennett, 56 Ga. 290.

1. The tax, though part of it be illegal and avoidable by the taxpayer, when collected under process and by color of office, cannot be retained by the collector, but must be accounted for to the proper party. Clifton v. Wynne, 80 N. Car. 145. See also Mississippi County . Jackson, 51 Mo. 23; Wilkinson v. Bennett, 56 Ga. 290; Fort v. Clough, 8 Me. 334; Johnson v. Goodridge, 15 Me. 29; Orono v. Wedgewood, 44 Me. 49; Hewlett v. Nutt, 79 N. Car. 263; Wake County v. Magnin, 78 N. Car. 181.

In Sandwich v. Fish, 2 Gray (Mass.) 298, the court, by Shaw, C. J., says: "Defects on the warrant or tax list might be a good excuse for not executing the warrant. But to say that a collector who has collected the money without objection by the taxpayers, is not liable to account therefor, would be contrary to the rules of law as to justice."

2. The failure of a state auditor, in settling with a tax collector, to include items with which he was justly chargeable, will not bar the state from an appropriate action against the officer; but the error must be shown, as in other cases of mistakes in accounting; it cannot be proved or shown prima facie, by a restatement by a succeeding auditor. Hobson v. Čom., 1 Duv. (Ky.) 172. See also Richmond County v. Ellis, 59 N. Y. 620; Onondaga County v. Briggs, 2 Den. (N. Y.) 26; Arthur v. Adam, 49 Miss. 404; U. S. v. Jones, 8 Pet. (U. S.) 375; Porter v. School Directors, 18 Pa. St. 144; Middletown Tp. v. Miles, 61 Pa. St. 290; Burnett v. Portage County, 12 Ohio 54; Kendall v. U. S., 12 Pet. (U. S.) 524; Treasurer of Mobile v. Huggins, 8 Ala. 440. And the fact that state and county

taxes have been accidentally blended and confused on the tax list, does not exonerate the collector from the duty of paying each tax to the party entitled thereto. Clifton v. Wynne, 80 N. Car. 145.

3. Ward v. Richardson, 1 Abb. N. Cas. (N. Y.) 449. See also McCracken v. Elder, 34 Pa. St. 239. But compare Wallace's Estate, 59 Pa. St. 401, where taxes assessed on land under an act making taxes a lien prior to all other charges on the premises, had been paid over by the collector, but were unpaid by the owner. In 1859, the owner confessed judgment to the collector for their amount as collateral, and shortly afterwards died. The land was sold in 1864 by order of the Orphans' Court; there had always, up to the time of the sale, been sufficient personal property on the premises to satisfy the taxes, and the court held that the collector had no priority over liens which preceded his judgment.

Reclamation of Fees Paid Over by Mistake.-Under the Indiana fee and salary law (Acts 1875, Spec. Sess., p. 37) entitling a county treasurer to five per centum on delinquent taxes collected, a county treasurer, by mistake, retained only one per centum. Held, he was entitled under the assessment law of 1872, §§ 177 and 178, and under the Act of March 31st, 1879, § 5811, R. S. 1881, to an order from the county board for repayment. Harrison County v. Benson, 83 Ind. 470.

4. People v. St. Clair County, 30 Mich. 387; Hart Tp. v. Oceana County, 44 Mich. 417; Detroit v. Weber, 26 Mich. 284; Potter County v. Oswayo Tp., 47 Pa. St. 162; People v. Columbia County, 10 Wend. (N. Y.) 363. And where a county treasurer reported to the auditor general that the county had used for certain purposes, money paid on sales of lands for state taxes, and the auditor general took his receipt for

the same and charged the amount to the county, it was held, on the treasurer becoming a defaulter, that the county must bear the loss, although it had never used the money. Aplin v. Shiawassee County, 74 Mich. 536.

The state is not to be prejudiced by the laches of its agents; so where the bond, taken from the county treasurer for the faithful performance of his duties in behalf of the commonwealth, and approved by the judges of the court of quarter sessions, was insufficient, the county was not thereby released from liability to the state. Schuylkill County v. Com., 36 Pa. St. 524; and statute providing that all losses sustained by the default of a county treasurer, in the discharge of the duties imposed upon him, shall be chargeable to the county, covers a default in the treasurer in not paying over the amount due the state on tax sales. People v. St. Clair County, 30 Mich. 388.

Where a county treasurer fails to pay over the proceeds, from a state tax, which have come into his hands, the board of supervisors is not required to levy a new tax for the sum retained, until all remedies against the county treasurer and the sureties on his official bond are exhausted, for the money cannot be said to be actually lost, pending such litigation. People v. Livingston County, 17 N. Y. 486.

1. A statutory enactment providing for a division of taxes collected and paid into the county treasury, between the county and city in a certain proportion, is not unconstitutional and may be enforced by law. Logan County v. Lincoln, 81 Ill. 156; Springfield . Power, 25 Ill. 187.

A county is responsible to a township for township taxes collected by the county treasurer and not paid over by him. Potter County v. Oswayo Tp., 47 Pa. St. 162. But see Marquette County v. Dillon, 49 Mich. 244. But not until such taxes have come into the county treasury in a legal way. Guittard Tp. v. Marshall County, 4 Kan. 388. And see Honey Creek Tp. 7. Floete County, 59 Iowa 109. In Pontiac v. Axford, 49 Mich. 69, it was held that a city treas

urer whose duty is to collect taxes and to make return to county treasurer, and who has power to collect unpaid taxes in the name of the city, may pay over the amount of the city tax to the county treasurer, even though the taxes of certain individuals have not been paid. An action may afterwards be maintained against them in the name of the city for the amount of their assessments.

Where the county authorities received and held money under a public law for the benefit of a city, the obligation of the county existed by law and it could not avail itself of the Statute of Limitations in a suit by the city to recover it. Logan County v. Lincoln, 81 Ill. 156.

Where a township collector has paid over to the county collector all county taxes levied in the township for a given year, he is not liable to the county for a portion thereof credited by order of the township committee to taxes due from the township for a previous year in which there was a deficit. State v. Mathe, 51 N. J. L. 216.

The duty imposed by statute on the county judge and on the mayor of a city, to divide the county revenue between the city and county,, is merely ministerial, and on the neglect of those officers to perform the duty, the amount due the city may be ascertained in any other satisfactory manner. Logan County v. Lincoln, 81 Ill. 156.

Where a township issuing bonds in aid of a railway is entitled, by statute, to the county taxes collected from the railroad within the township and devoted to payment of the bonds, any diversion of such tax from the lawful object is an injury to the township which may be protected by an action in its behalf. Bridges V. Sullivan County, 92 N. Y. 570. And see Wood 7. Monroe County, 50 Hun (N. Y.) 1.

Preference of Town Over County.In Winchester County Treasurer v. Tozer, 24 Wis. 312, the court held that under Wisconsin R. S., ch. 18, a town treasurer is justified in giving preference to the town over the county, where he was not able to collect sufficient taxes to pay both. See also

Wolff v. Stoddard, 25 Wis. 503; Stahl v. O'Malley, 39 Wis. 328. But in New Jersey, under act 1886, § 83 (N. J. Rev. 1159), the county and state taxes must be paid out of the first moneys collected under the tax levy. State v. Jersey City, 50 N. J. L. 359; State v. Bernards Tp., 42 N. J. L. 338.

County Orders. -County orders received by a town treasurer in payment of county taxes, belong to the county and not to the town, and the town treasurer cannot hold them for the use of the town, but must deliver them to the county treasurer in his settlement. Webster v. Oconto County, 47 Wis. 216. See also Pelton v. Crawford County, 10 Wis. 69.

Where New County is Organized. Where a county is organized from territory detached from others, the equities between the new and old counties as to county taxes previously levied, should be adjusted under Michigan Comp. L., ch. 9, p. 226. But township, school district, and road district taxes should be accounted for by the county to which returns were made, and with the respective townships and districts for which they were levied. Clare County v. Auditor Gen'l, 41

Mich. 182.

A county liable for a balance to a township set off from it, cannot relieve itself of any share of its liability by compromising with a defaulting treasurer. Such act cannot be treated as an act of agency on behalf of the township. Roscommon Tp. v. Midland County, 49 Mich. 454.

1. Cass Tp. v. Dillon, 16 Ohio St. 38; State v. Bernards Tp., 42 N. J. L. 338; State v. Jersey City, 50 N. J. L. 359. And see People v. Jackson County, 24 Mich. 237.

2. State v. Van Winkle, 43 N. J. L. 125; Sheridan v. Stevenson, 44 N. J. L. 371. See also People v. Gasherie, 9 Johns. (N. Y.) 71; Chenango County v. Birdsall, 4 Wend. (N. Y.) 453; Board

of Justices v. Fennimore, 1 N. J. L. 242; State v. Sooy, 39 N. J. L. 539.

3. State v. State Auditor, 32 La. Ann. 89; State v. Clinton, 28 La. Ann. 400. And see In re Appropriations, 13 Colo. 316.

Where the whole amount of a city levy is not collected, the portion collected need not be pro-rated between the objects named in the general appropriation ordinance, in the relative proportion that each particular tax bears to the whole sum levied. Fuller v. Heath, 89 Ill. 296.

But in order to compel the state auditor by mandamus to issue his warrant for an appropriation, it must clearly appear, either that there were funds in the treasury at the date of the appropriation, not otherwise appropriated, or that the legislature provided for the levying of a sufficient tax to pay it within the proper fiscal year. Henderson v. People, 17 Colo. 587; In re Appropriations, 13 Colo. 316.

Taxes authorized for the current fiscal year and which will be paid within that year, are revenue from which the appropriations from that year may be paid, notwithstanding they cannot actually come into the state treasury until its expiration. State v. Kenney, 10 Mont. 488.

4. See State v. Harvey, 12 Neb. 31; East St. Louis v. Board of Trustees, 6 Ill. App. 130, which was a petition for a mandamus to compel the payment of a judgment. And see Tucker v. Raleigh, 75 N. Car. 267, in which it was held that when a city exercises its powers of taxation to the utmost, and the amount realized is sufficient to pay only necessary current expenses, no portion of such taxes can be diverted to the payment of antecedent debts.

A general appropriation act to defray the expenses of the executive, legislative, and judicial departments of the state government, must take precedence over an appropriation for the

Soldiers' and Sailors' Home; but although the appropriation for the Home provides that a part of such sum may be used during a particular year, this does not amount to an appropriation of such sum out of the revenue of that year. Henderson 7. People, 17 Colo. 587. And see In re Appropriations, 13 Colo. 316.

Where, by the charter of a city, a fund raised by annual tax is authorized for the purpose of paying the necessary current expenses and administration, not including payments on account of certain city bonds, a court cannot require such fund to be appropriated to the payment of the bonds. See St. Louis . U. S., 110 U. S. 321.

1. "There may, perhaps, be an exception where a tax is levied by a special authority from the legislature, or upon the vote of the people, which would not otherwise be lawful. We speak only of a tax levied under the ordinary powers of the county commissioners." Long . Richmond County, 76 N. Car. 273. And under the constitution of South Dakota, an act levying a tax for an extraordinary expense, must clearly state its object, and the tax so levied cannot be diverted to any other use. In re Limitation of Taxation (S. Dak. 1893), 54 N. W. Rep. 417. And where taxes collected on the assessed valuation of a railroad in a municipality which has issued bonds in aid of its construction, instead of being used by the county treasurer to purchase the bonds, or invested by him as required by the act authorizing their issue in aid of the road, have been applied to the payment of county obligations, the town has an equitable cause of action against the board of supervisors to compel the levying of a tax upon the county for the amount so misappropriated. Kilbourne 7. Sullivan County, 137 N. Y. 170. And see Collins . Henderson, 11 Bush (Ky.) 74; Paxton v. Baum, 59 Miss. 531; Morgan v. Pueblo, etc., R. Co., 6 Colo. 458; State. Harvey, 12 Neb. 31; Merrill v. Marshall County, 74 Powa 24; Vinton. Cattaraugus County, 2 N. Y. Supp. 367; 50 Hun (N. Y.) 600: Brown v. Hertford County, 100 N. Car. 92.

In State v. St. Louis County Ct., 34 Mo. 546, it was held that money col

lected by a county for specific purposes might, by act of the legislature, be diverted to another use. And see State 7. St. Louis, etc., R. Co., 9 Mo. App. 532; St. Louis v. Shields, 52 Mo. 351; State . Brewer, 64 Ala. 287: Blanding 7. Burr, 13 Cal. 343; Graham v. Parham, 32 Ark. 676.

But county commissioners have no power to appropriate a fund raised by taxation to defray county charges and expenses of the current year, to the erection of permanent county buildings. State . Marion County, 21 Kan. 419. And see National Bank v. Barber, 24 Kan. 545; State v. Haben, 22 Wis. 660.

But it will not be presumed that a tax levied for parks and boulevards will be expended upon improvements in a town other than that in which it was collected, although it is payable to park commissioners who control boulevards not situated in such town. Halsey v. People, 84 Ill. 89.

If the funds raised for a particular purpose have been wrongfully diverted to other purposes, the only remedy of the municipality or government levying taxes, is against those guilty of the wrong-doing. The creditors for whose benefit the tax was levied are not to suffer thereby. Pope County v. Sloan, 92 Ill. 177.

2. See State v. Cobb, 8 S. Car. 123, where it was held that the legislature could constitutionally provide that the poll tax of any year should be applied to the payment of past due school claims against the county. And in State v. State Auditor, 32 La. Ann. 89, it was held that the legislature might provide for the payment of a just debt of the state, out of a surplus of the revenues of any particular year.

A balance of a claim for sheep killed by dogs, after applying all the taxes of the year applicable thereto, may be paid out of the tax of the following year, under Pennsylvania Act, May 15th, 1889, providing for the payment to the school fund, of any surplus of the fund amounting to $100, as the statute does not forbid nor prohibit the carrying forward of the unpaid balance of a former claim. Nevin v. Dreher School Dist., 2 Pa. Dist. Rep. 565; 12 Pa. Co. Ct. Rep. 449.

1. Coy v. Lyons, 17 Iowa 1; Santee 7. Allegheny City, 10 Pitts. Leg. J. 241 Louisville 7. Murphy, 86 Ky. 53; Beck v. Allen, 58 Miss. 143; Galma v. Amy, 5 Wall. (U. S.) 705; Ranger v. New Orleans, 2 Woods (U. S.) 128. And see Clark 7. Sheldon, 106 N. Y.

104.

And when collected and set apart, according to the provisions of the act by which they are authorized, they constitute a trust fund, and the municipality or officer in whose charge they are placed may be enjoined from using them for any other than the designated purpose. Maenhaut 7. New Orleans, 2 Woods (U. S.) 108; Ranger v. New Orleans, 2 Woods (U. S.) 128; Aurora v. Chicago, etc., R. Co., 19 Ill. App. 360; Bradford v. Chicago, 25 Ill. 411. And the Statute of Limitations will not run against the party entitled to the fund. Aurora v. Chicago, etc., R. Co., 19 Ill. App. 360.

A county or other municipality is a trustee, so far as it uses the funds or means gathered from its taxpayers, to the extent, at least, of the due collection and application of such funds to the purposes authorized by law. Winston . Tennessee, etc., R. Co., 1 Baxt. (Tenn.) 60.

Where a tax voted in aid of a railroad remains in the hands of a treasurer as a distinct fund, no judgment can be rendered against the county for its repayment, when forfeited by the railroad company. Barnes v. Marshall County, 56 Iowa 20. But where a tax voted in aid of a railway is collected and placed in the general funds of the county, and expended in paying ordinary county indebtedness, its identity is lost and the county is liable for the amount to the railway company or its assignee. Merrill v. Marshall, 74 Iowa 24.

2. Union Pac. R. Co. v. Dawson County, 12 Neb. 254; Clark v. Sheldon, 134 N. Y. 333; 40 Am. & Eng. Corp. Cas. 695. See also, in addition to the

foregoing cases, Morton v. Comptroller Gen'l, 4 S. Car. 430; People v. Cairo, 50 Ill. 154; Wood v. Monroe County, 2 N. Y. Supp. 369; 50 Hun (N. Y.) I.

Where a city is limited by its charter to the levying of a certain per cent., a designated portion of which is required to be applied to the payment of its bonded indebtedness, if the city levies a less amount than that limited, it must apply the same proportion of the amount levied to its bonded indebtedness as it would have applied had the whole amount been levied. East St. Louis . Underwood, 105 Ill. 308.

3. See Klein 7. Johnson, 33 La. Ann. 587. But the effect of an act which, after appropriating a certain sum for a certain legal purpose, payable in annual installments, provides that "out of all state taxes collected, one-half of one mill on every dollar shall be set apart of the general funds as a fund to meet" said sum, is merely to diminish the general fund tax by the amount it levies, and does not violate the constitutional provision. Harris 7. Dubuclet, 30 La. Ann. 662. Such a provision does not repudiate the subsisting obligations of the state if the legislature fails to provide an annual revenue sufficient to pay them. The effect of such neglect would be that a subsequent legislature would, by taxation and appropriations, provide for their payment. State v. Johnson, 28 La. Ann. 511. And see State v. New Orleans, 29 La. Ann. 863; and State v. State Auditor, 32 La. Ann. 89.

In California, each year's income and revenue of a municipality must pay each year's indebtedness and liability, and no indebtedness or liability incurred in any one year can be paid out of the income or revenue of any future year. San Francisco Gas Co. v. Brickwedel, 62 Cal. 641.

4. Appropriations for transient objects, such as for personalty, or for the World's Fair, or to defray current ex