Payne v. Washington County

• Decision Date: 21 December 1889
• Citation: 25 Fla. 798,6 So. 881
• Parties: PAYNE v. WASHINGTON COUNTY.
• Court: Florida Supreme Court

6 So. 881

25 Fla. 798

PAYNE v. WASHINGTON COUNTY.

Florida Supreme Court

December 21, 1889

Appeal from circuit court, Washington county; James F. McCLELLAN Judge.

Syllabus by the Court

SYLLABUS

1. While a county may be sued for indebtedness, the indebtedness must be such as it may legitimately incur under express or clearly implied power given by statute, else it will not be liable.

2. The expense of advertising the delinquent tax-list by the tax collector of a county cannot fall upon the county, because he is not authorized by any statute, or by virtue of his being a county officer, to bind the county for such expense. The statute, by providing that the payment shall be made from the proceeds of sale of the property advertised, excludes the notion of obligation on the county, and obligation cannot be created by the fact that there was no sale under the advertisement.

3. A tax collector, though an officer of the county, acts both for the state and the county in the collection of the revenues but cannot bind either for expense of advertisement of the delinquent tax-list, unless the state should be bound by becoming the purchaser at the sale.

COUNSEL Liddon & Carter, for appellant.

Daniel Campbell, for appellee.

OPINION

MAXWELL, J.

During February, 1887, the tax collector of Washington county procured publication of the delinquent list of tax-payers in a newspaper owned and published by appellant. The charge for publication not having been paid, appellant sued the county to recover the amount claimed thereon. The proceedings in the case resulted in a judgment for the defendant, appellee here and in the appeal now before us. Without reference to the manner in which the pleadings and the rulings of the court present the controversy between the parties, it is enough to say that the decisive question involved, as eliminated from the record and the assignment of errors, is whether the county is liable for the expense of the publication.

Since the statute of 1881, (McClel. Dig. p. 319, § 21,) there has been no question as to the right of suit against a county by any one to whom it is legitimately indebted. But what constitutes legitimate indebtedness depends upon the power and authority given to counties by statute to make contracts and incur liabilities. A county cannot be burdened with expense or debt, except so far as the power is given therefor, either expressly, or by clear implication, from some other power expressly given. Being the creature of statute, the extent of its action towards incurring liability must be limited by statute. See County of Nassau v Downie, 16 Fla. 171; note to Gilman v. County of Contra Costa, 68 Amer. Dec. 291; Claiborne Co. v Brooks, 111 U.S. 400, 4 S.Ct. 489; Askew v. Hale Co., 54 Ala. 639; Simpson v. Lauderdale Co., 56 Ala. 64; Moon v. Commissioners, 97 Ind. 176.

With this law to guide us, where is to be found in the statutes of the state the authority in Washington county to make itself liable for the expense of publishing the delinquent tax-list? There is certainly no express power given to incur such a debt; but it is claimed to be an obligation of the county, because the tax collector is a county officer, and is authorized by law to make such publication, and in doing this is the agent of the county. As put by the counsel for appellant, 'the statute authorizing the county, through its agent, the collector of revenue, to make a contract for the performance of the services, necessarily implies an authority to the county to pay for the same.' In connection with this, it is said 'there is no question that a county may become liable to action upon an implied contract, or upon a legal implication when properly made.' This last proposition is undoubtedly correct, but it still leaves open the question whether the tax collector is such agent of the county as to bind it for the kind of publication in question. We think not. The fact that he is a county officer does not make him an agent of the county for such purpose. His...