Statement of the Case.

collection of the taxes, received other county warrants in payment, and had thus collected and given receipts to all the taxpayers for their taxes.

This action of Winterbottom, he alleged, was an unlawful violation of his duty as collector of the county and a breach of his official bond. He then described with more minuteness the particulars in which this conduct was a violation of his official duty, alleging that by the law the collector had no authority to receive any warrant in payment of taxes which was not originally issued to the man who offered it in such payment, or was regularly assigned to him, and that even such holder could only use it to pay his own taxes. The petition alleged a disregard of this provision of the law by the collector, who "did, during his said term of office, unlawfully and wrongfully receive from divers and sundry persons, in payment of taxes of said county, divers and sundry warrants of said county, the said persons not being the legal holders thereof, because the said warrants were in no case payable to such persons, and were in no case transferred to such persons by assignment in full, and said persons, not being entitled to pay the same in for taxes, because no taxes were assessed or existing against them; that said Winterbottom, upon receiving such warrants, gave receipts discharging from further payment the persons against whom said taxes were so assessed and existing, to an amount equal in each case to the amount of warrants so received; that from the 18th day of March, 1879, to the 1st day of March, 1881, said Winterbottom collected all the county taxes of and in said county in warrants as aforesaid, and not otherwise; that all the tax-payers of said county from whom any county taxes were due during said period have received from said Winterbottom full acquittances without the payment of any money, and without any payment except in warrants as aforesaid."

The petition then stated "that the said Winterbottom, as required by law, once in each month during the said period, made settlements to the clerk of said county court of the county taxes so collected by him, and delivered to the treasurer of said county the said warrants so received as aforesaid;

Citations for Plaintiff in Error.

that the said Winterbottom, as such collector, and the said treasurer, at various times during the years 1879, 1880, and 1881, made settlements of their official accounts, as required by law, with the said county court, and the said treasurer exhibited to the said court, and filed with the clerk of said court, all the county warrants so received by the said collector, and by him delivered to the said treasurer, and the said county court accepted and approved the settlements of the said collector and the said treasurer, and approved the acts of the said collector in receiving warrants in payment of taxes, as aforesaid, and ratified and confirmed the release and discharge of said tax-payers from payment of their taxes, as aforesaid, so that the same cannot again be demanded of them."

To this petition there was a demurrer, which being sustained by the Circuit Court, judgment was rendered for the defendants.

The assignments of error related to this action of the court in sustaining the demurrer.

Mr. T. J. Skinker for plaintiff in error cited: United States v. Clark County, 96 U. S. 211; Knox County Court v. Harshman, 109 U. S. 229; Edwards v. Kearzey, 96 U. S. 595; Balls County Court v. United States, 105 U. S. 733; United States v. Lincoln County, 5 Dillon, 184; Tracy v. Swartwout, 10 Pet. 80; Steines v. Franklin County, 48 Missouri, 167; Amy v. Supervisors, 11 Wall. 136; McCutchen v. Windsor, 55 Missouri, 149; Schoettgen v. Wilson, 48 Missouri, 253; Dritt v. Snodgrass, 66 Missouri, 286; Lampert v. Laclede Gas Light Co., 14 Missouri App. 376; Jenks v. Fassett, 65 Missouri, 418; Wilson v. The Mayor, 1 Denio, 595 [S. C. 43 Am. Dec. 719]; Clark v. Miller, 54 N. Y. 528; Raynsford v. Phelps, 43 Mich. 342; Wasson v. Mitchell, 18 Iowa, 153; Pickering v. James, L. R. 8 C. P. 489; Hover v. Barkhoof, 44 N. Y. 113; Robinson. v. Chamberlain, 34 N. Y. 389 [S. C. 90 Am. Dec. 713]; Nowell v. Wright, 3 Allen, 166 [S. C. 80 Am. Dec. 62]; Moulton v. Jose, 25 Maine, 76; Harrington v. Ward, 9 Mass. 251; Dilchee v. Raap, 73 Ill. 266; State v. Shacklett, 37 Missouri, 280; State v. Powell, 44 Missouri, 436; State v. Davis, 35 Missouri, 406;

Citations for Defendants in Error.

Cummings v. St. Louis, 90 Missouri, 259; Water Commissioners v. East Saginaw, 33 Mich. 164; Newmeyer v. Railroad Co., 52 Missouri, 81; Willard v. Comstock, 58 Wis. 565; Commissioners v. McClintock, 51 Ind. 325; Mayor v. Gill, 31 Maryland, 375; Page v. Allen, 58 Penn. St. 338; United States v. Morgan, 11 How. 154; Olmstead v. Brush, 27 Conn. 530; Taylor v. Mygatt, 26 Conn. 184; Paul v. Slason, 22 Vt. 231 [S. C. 54 Am. Dec. 75]; Parker v. Kett, 12 Mod. 472; Alexander v. Helber, 35 Missouri, 334; Doolittle v. McCullough, 7 Ohio St. 299; Pierce v. Benjamin, 14 Pick. 356 [S. C. 25 Am. Dec. 396]; Cressey v. Parks, 76 Maine, 532; Howard v. Cooper, 45 N. H. 339; Felton v. Fuller, 35 N. H. 229; Kaley v. Shed, 10 Met. 317; Baldwin v. Porter, 12 Conn. 484; Curtis v. Ward, 20 Conn. 207; Hopple v. Higbee, 23 N. J. L. (3 Zabr.) 342; Mountford v. Gibson, 4 East, 441; Butts v. Edwards, 2 Denio, 164; Mayo v. Springfield, 138 Mass. 70.

Mr. John W. Dryden and Mr. Clinton Rowell for defendants in error cited: Harrington v. Ward, 9 Mass. 251; Travellers' Ins. Co. v. Harris, 89 Ind. 363; Dehn v. Heckman, 12 Ohio St. 181; Ware v. Brown, 2 Bond, 267; Terrell v. Andrew County, 44 Missouri, 309; State v. Todd, 57 Missouri, 217; Kahl v. Love, 37 N. J. L. 5; Strong v. Campbell, 11 Barb. 135; Fish v. Kelly, 17 C. B. (N. S.) 194; Savings Bank v. Ward, 100 U. S. 195; Davis v. Bader, 54 Missouri, 168; Logan v. Barton County, 63 Missouri, 336; People v. Ingersoll, 58 N. Y. 1; King of Spain v. Oliver, 1 Pet. C. C. 276; Dale v. Grant, 34 N. J. L. 142; Anthony v. Slaid, 11 Met. 290; Cunningham v. Brown, 18 Vt. 123 [S. C. 46 Am. Dec. 140]; Rockingham Ins. Co. v. Bosher, 39 Maine, 253 [S. C. 63 Am. Dec. 618]; Conn. Mut. Life Ins. Co. v. New York & New Haven Railroad, 25 Conn. 265 [S. C. 65 Am. Dec. 571]; Smith v. Hurd, 12 Met. 371 [S. C. 46 Am. Dec. 690]; Smith v. Poor, 40 Maine, 415 [S. C. 63 Am. Dec. 672]; Hersey v. Veazie, 24 Maine, 9 [S. C. 41 Am. Dec. 364]; Railroad Co. v. Railroad Co., 54 Maine, 173; Abbott v. Merriam, 8 Cush. 588; Memphis v. Dean, 8 Wall. 64; Brewer v. Boston Theatre Co., 104 Mass. 378; Greaves v. Gouge, 69 N. Y. 154; Wilkie v. Rochester &

Opinion of the Court.

State Line Railway, 19 N. Y. Supreme Ct. (12 Hun) 242; Allen v. Curtis, 26 Conn. 456; Gardiner v. Pollard, 10 Bosworth, 674; East St. Louis v. Zebley, 110 U. S. 321; Clay County v. McAleer, 115 U. S. 616; Smith v. Jones, 15 Johns. 229; Willard v. Sperry, 16 Johns. 121; Colvin v. Corwin, 15 Wend. 557; Stevens v. Lockwood, 13 Wend. 644 [S. C. 28 Am. Dec. 492]; Flaherty v. Taylor, 35 Missouri, 447; State v. Roberts, 60 Missouri, 402; Marion County v. Phillips, 45 Missouri, 75; Saline County v. Wilson, 61 Missouri, 237.

MR. JUSTICE MILLER, after stating the case as above reported, delivered the opinion of the court.

We are of opinion that the action of the court was right. While there are other reasons, perhaps, why this petition is insufficient to sustain the action, the two principal ones are: First, that the actual plaintiff, Harshman, for whose use this action was brought, shows no relation of contract or legal obligation, between Winterbottom and himself, on which he has a right to bring this suit.

Second, that the obligation of the defendants is to the State for the collection of the state taxes, and to the county for the collection of the county taxes. There are no state taxes in the case. The county taxes were collected and paid over to the county treasury in the class of current obligations of the county, which the law recognizes as valid payment of taxes, and the county court, to whom the obligation of accounting for the taxes collected, or for failure to collect taxes, was due, has settled with Winterbottom and accepted its own warrants issued upon the treasurer as a full and satisfactory payment and discharge of that obligation. This formal accounting and settlement between the county court and the defendant, Winterbottom, as set out by the plaintiff himself in his own declaration, is one which the county court undoubtedly had a right to make, and, in paying over these county warrants to the treasury of the county, and in receiving the acknowledgment of the county court that he was fully discharged from his obligations in that respect, he presents a defence to this action which nothing in the declaration removes or invalidates. He

Opinion of the Court.

had a right to receive county warrants in payment of taxes. The law in express terms declares it to be his duty to receive them. Whether they were received by him under the exact circumstances which the law directs as to original ownership or assignment to the party who presented them, were matters for which he might have been called to account by the county court, and that body, in making the settlement with him, might possibly have had the power to reject warrants so received in making up the account; but, inasmuch as they were actual obligations of the county, payable out of the county funds, and receivable in discharge of taxes if properly tendered, the county court, which, by law, has full charge of all the financial operations of the county, could waive any such irregularity in the time and mode of presenting their own obligations, and credit the collector with them in the account.

We are of opinion that this settlement with the county court is of itself a sufficient bar to the present action on the collector's bond. If this were not so, and if, as the plaintiff's counsel contends, the payment of these taxes by the county warrants thus irregularly presented is void, then the tax-payer himself is not discharged. He had no more right to tender the county warrants in payment of his taxes, under the circumstances mentioned in the petition, than the collector had to receive them. If the act is a void act as to the one, it is a void act as to the other, and the right of the plaintiff to sue the tax-payer is much clearer than his right to sue the collector, because the tax-payer owes his taxes yet, having never lawfully paid them, while the collector has settled his accounts with the authority which had a right to accept these county warrants, and has been discharged from further obligation. If he can sue the collector on this official bond, and the sureties who are bound with him on that bond, why can he not sue the tax-payers? The obligation to pay taxes, and the obligation to pay the taxes when collected into the treasury, is the same and bears exactly the same relation to the right of Harshman to get his money out of the county treasury.

The truth is there is no contract or legal obligation of the