Washington County v. Fidelity & Deposit Co. of Maryland, 5560

• Decision Date: 06 February 1931
• Docket Number: 5560
• Citation: 50 Idaho 322,295 P. 1003
• Parties: WASHINGTON COUNTY, a Municipal Corporation, Respondent, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, a Corporation, Respondent, and GEORGE E. GILDEROY, Appellant
• Court: Idaho Supreme Court

295 P. 1003

50 Idaho 322

WASHINGTON COUNTY, a Municipal Corporation, Respondent, v. FIDELITY & DEPOSIT COMPANY OF MARYLAND, a Corporation, Respondent, and GEORGE E. GILDEROY, Appellant

No. 5560

Supreme Court of Idaho

February 6, 1931

COUNTIES-TAX COLLECTOR-DUTY TO MAKE SETTLEMENT-ACTION TO COMPEL.

1. Under statute requiring tax collector to settle with county auditor on first Monday of each month, cause of action arises in favor of county against noncomplying tax collector on first Monday of each month (C. S., sec. 3325).

2. Statutory action to preserve county funds held not to fix exclusive method for requiring tax collector to account for funds (C. S., secs. 303, 3325).

3. County held justified in suing to compel tax collector to account for, or get possession of, sums unaccounted for, or pay them, as tax collector, to treasurer on settlement with auditor (C. S., sec. 3325).

4. Asking jury to determine whether defendant, if in default was in default as treasurer or tax collector, was not prejudicial, where defendant was not short as treasurer, and jury found shortage only in tax collector's office.

5. In suit to require tax collector to account for funds, if shortage is shown, collector has burden of explaining it (C S., sec. 3325).

APPEAL from the District Court of the Seventh Judicial District, for Washington County. Hon. A. O. Sutton, Judge.

Action against county treasurer and tax collector. Judgment for plaintiff. Affirmed.

Judgment affirmed; costs to respondent.

James Harris and Frank T. Wyman, for Appellant.

The point we wish now to make is that under the law Gilderoy was not required to pay over this money except to the treasurer upon auditor's certificates or to his successor. The demand for the alleged shortage was thereupon made and this suit to collect it was brought while Gilderoy was still in office and before his term had expired. He was still entitled to the custody of the money. If any shortage really existed and if Gilderoy or his surety should pay this judgment, the money would be paid to Gilderoy in his official capacity and not to any other person.

The statute does not require or permit a tax collector to pay out moneys in his hands except to two persons--to the treasurer upon auditor's certificates and to his successor in office. (C. S., sec. 3325; United States v. Meade, 9 Ariz. 209, 80 P. 326.)

Herman Welker and George Donart, for Respondent.

It is the duty of a treasurer or tax collector to receive all moneys belonging to the county, safely keep the same and account to the county therefor, and as tax collector to settle with the county auditor for all moneys collected on account of taxes on the first Monday of each month, and to make a final settlement on the second Monday of January of each year. (C. S., secs. 3325, 3562.)

GIVENS, J. Lee, C. J., Varian and McNaughton, JJ., and Koelsch, D. J., concur.

OPINION

GIVENS, J.

Washington county claimed that on April 27, 1929, appellant was short in his capacity as treasurer or tax collector, $ 1,180.77, and brought suit against appellant and his bondsman, respondent company, for said sum of money and an accounting thereof. Gilderoy had been treasurer and ex-officio tax collector for two successive terms prior to the beginning of January, 1929, and his then term expired January, 1931.

Appellant urges that the action was premature; that Gilderoy was under no obligation to turn the money over except to his successor and that as long as he remained in office there was of course no successor until his then term of office expired; that there was no one else who could act for the county and receive the money, and also that the evidence was insufficient to show that there was a shortage July 26, 1929, the time the complaint was filed, or November 26, 1929, the date of the trial, and assigned certain instructions as erroneous.

Appellant urges that if the county commissioners desired to recover this money during the treasurer's term of office, it was necessary to proceed under C. S., sec. 303. It is unnecessary to consider whether an action would lie as plead against the treasurer as distinguished from tax collector because no judgment was rendered against the treasurer as such.

The county treasurer as tax collector is required by C. S., sec 3325, to settle with the county...