Shelton v. Blount County

• Decision Date: 10 April 1919
• Docket Number: 6 Div. 763
• Citation: 81 So. 562,202 Ala. 620
• Parties: SHELTON, Tax Collector, et al. v. BLOUNT COUNTY.
• Court: Alabama Supreme Court

81 So. 562

202 Ala. 620

SHELTON, Tax Collector, et al. v. BLOUNT COUNTY.

6 Div. 763

Supreme Court of Alabama

April 10, 1919

Appeal from Circuit Court, Blount County; John C. Pugh, Judge.

Action by Blount County against W.J. Shelton, Tax Collector, and his official bond, for taxes alleged to be due. Judgment for plaintiff, and defendants appeal. Affirmed.

Russell & Johnson, of Oneonta, and O.D. Street, of Guntersville, for appellants.

G.W Darden and James Kay, both of Oneonta, and J.A. Lusk & Son of Guntersville, for appellee.

SOMERVILLE J.

The sole question presented by this appeal is whether or not a tax collector, who has mistakenly overpaid the taxes due from him to the county for one year, can reimburse himself for such excess by retaining an equivalent out of the taxes collected by him for the following year; and, having done so can he thereby defeat an action by the county on his official bond, founded on his failure to pay over all the taxes collected for the following year?

Defendants concede that, for technical reasons, a plea of set-off is not here available. They insist, however, that their defense, based on the facts recited, is available as one in the nature of recoupment; this upon the asserted theory that the tax collector's account for taxes collected and paid over is continuous from year to year, and not a series of unrelated yearly accountings.

Under Alabama statutes, the county tax collector is required to make monthly reports and payments of county taxes collected by him (Code, § 2200), and on or before the 1st day of July of each year he must make a final settlement, under oath, with the county treasurer, and pay over to him all taxes not previously accounted for (Code, § 2204).

We must presume that the defendant tax collector discharged this duty as prescribed by law, and it seems clear that his account for the tax year of 1914 was thereby effectually detached from his account for the ensuing year, and that those accounts were in no sense single or continuous. In line with this theory, it has been held that the taxes collected for one year cannot be applied as a credit on the fund due to be accounted for by the tax collector for any other year, but must be paid and credited as for the year for which they were collected. State, use of Winston County, v. Tingle, Tax Collector, 196 Ala. 505, 71 So. 991.

It would seem, therefore, that a tax collector's mistaken excess payment to the county treasurer, over and above what he is accountable for for that year, if officially paid and received as taxes and added to the county funds, becomes a distinct claim for money had and received by the county to the use of the collector. If so, we can discover no good reason why it should not have been presented to the court of county commissioners for allowance or rejection, as required by Code, § 147. Whatever defendants may call the plea setting up such a claim, it is really a cross-claim, and is governed by Code, § 2472, which forbids suit against a county until the claim sued on has been duly presented to the commissioners' court and unfavorably acted upon. 11 Cyc 454, citing State v....