1846. No. 9. REPORT of Judiciary Committee. The committee on the judiciary, to whom was referred a "joint resolution relative to a certain sum of money stolen from the treasurer's office in Shiawassee county," have had the same under consideration, and instructed me in their behalf, to report thereon, as follows: From the petition of the supervisors of Shiawassee county, touching said sum of money, which accompanied said joint resolution, it would appear that on the 3rd of October, 1843, $1,812, proceeds of sale of lands for delinquent taxes of 1839 and 1840, was stolen, as is alleged, from the treasury of said county. A joint resolution, approved March 11, 1844, (Sess. Laws, p. 172) directed that said moneys should not, during that year, be withholden by the Auditor General from said county, but reserved the question whether the state or county should suffer the loss. An opinion of Attorney General Farnsworth, on the same subject, is found on Senate Journal of 1844, page 118. It is insisted by the supervisors in their memorial, that the treasurer of Shiawassee in conducting the tax sales in 1843 for delinquent taxes of 1839 and '40, was merely the agent of the state transacting the business of the state; that the county had no interest therein, and is not responsible for the doings of the treasurer touching the same, nor is liable to make good any loss to the state in whatsover manner connected with his acts, or resulting therefrom. The question submitted to the committee is purely a legal question, as between the state and the county; and depends entirely upon statute law. The rights and responsibilities of the state and county in reference to the question submitted, are believed to rest upon the provisions of the Revised Statutes of 1838. The county treasurer in 1843, was an elective officer, and gave bond to the supervisors of the county, with sureties approved by them, conditioned for the faithful discharge of his several duties. Chapter 5 and 6, title 5, part 1st revised statutes, page 89, 102, detail the various duties of a county treasurer in relation to taxes. By section 8, page 91, upon taxes in arrear which should be returned to the Auditor General's office, the state paid any portion thereof due to the counties in money, assumed the entire control of them, and relied solely on the taxes so returned for reimbursement of money so advanced as well as for realizing the unpaid taxes due the state; and from that point of time the state alone became the party in interest to supervise [the collection of the taxes in arrear, and to appropriate the proceeds thereof when collected. In carrying out the plan, the county treasurer's were to act an important part, but always under the direction of the Auditor General. The county treasurer made the sale, but the money received was paid to the State Treasurer or held subject to his order-they went into the state treasury. See revised statutes, page 90, sections 1 and 2, page 91, sec. 6, 8, 9 and 10; page 97, sec, 11, 14, page 98, sec. 15, 16 ; page 99 sec. 22, 23 and 26. Were the legislation on the subject confined to the above provisions, it might be difficult to disturb the position taken by the petitioners. But the statute is very explicit, page 100, sec. 2, where it says that "all losses which may be sustained by the default of any treasurer of a county in the discharge of the duties imposed by this title shall be chargeable on the county." This is deemed to be conclusive that the county of Shiawassee must be the sufferer in this case, and not the state. And there are strong reasons why it should be so. The county elects the officer-the county officers take bonds with such sureties as they may deem proper. As the state has no part in the selection of the officer or in taking sureties from him, it would seem reasonable that it should not be responsible for his acts; were it otherwise, there would be a wide door for speculation, fraud and collusion, and the public moneys never would be secure from collusion, losses, specious depredations, or even flagrant defalcation. From like considerations of public policy in some of the states, the county is made responsible for the acts of the sheriff, and it is very observable that in those states official delinquencies in the sheriff and his officers are very unfrequent. This being purely a legal question, should more properly have been brought before a legal tribunal; but as the matter has been submitted |