Original suit.
A collector of revenue is discharged from liability to the state, if he pays
the treasurer, even if the treasurer fails to report the fact to the
auditor. The remedy of the state is against the treasurer.
This was an action of debt, brought against Henry M. Smith and his sureties,
on the bond of Smith as collector of Pulaski county.
The facts of the case are stated in the opinion of the court.
D. B. Campbell, District Attorney, for plaintiffs.
A. G. Caldwell, for defendants.
Treat, C. J. This is an original suit in this court, brought on the bond
given by the collector of Pulaski county, for the collection of the taxes
for the year 1847. It is submitted on an agreed state of facts, as follows:
The collector, on the twelfth of January, 1848, paid to Milton Carpenter,
then treasurer of state, one hundred dollars on account of the revenue for
the year 1847, and obtained the treasurer's receipt therefor; but the
receipt was not countersigned by the auditor, nor was a duplicate filed with
the auditor, in conformity with the uniform practice in such cases; in
consequence of which, the collector has never been credited with the amount
on the books of the auditor. The only question relates to the validity of
this payment. By the law of March 8, 1833, the treasurer was required to
give duplicate receipts for payments made on account of the revenue; one of
which was to be filed with the auditor, and entered on the books of his
office; the other was to be countersigned by the auditor, and delivered to
the person making the payment; and no payment was to be considered as made,
until the treasurer's receipt was countersigned by the auditor: Rev. Laws of
1833, p. 104, sec. 6. In the revision of the laws in 1845, that provision
was not retained. The statute, now in terms, only requires the treasurer to
receive the proceeds of the revenue, keep a true account thereof, and
"report monthly to the auditor, the amount of money which he may have
received, stating on what account the same was paid into the treasury:" U.
S., ch. 13, secs. 13—14. This change in the law seems to bo conclusive of
the question. The payment was made to the authorized agent of the state, and
operated pro tanto to discharge the collector. The neglect of the treasurer
to report the payment to the auditor ought not to prejudice the collector.
The latter performed his whole duty by paying the money into the treasury.
The remedy of the state is against the treasurer. We understand that the
regulation prescribed by the act of 1833, has notwithstanding the change in
the law, been pursued until the present time; and this case forms the only
instance, in which payments have been made to the treasurer, without the
filing of a duplicate receipt with the auditor. This practice may with great
propriety be sanctioned by the legislature, by the re-enactment of the law
of 1833. The practice operates as a salutory check on the treasurer. Under
it, the books of the auditor will exhibit the true state of the receipts
into the treasury, without regard to the monthly reports of the treasurer.
The present case forcibly illustrates the propriety of the practice. No
duplicate receipt was issued and filed with the auditor, and the treasurer
failed to include the payment in his report to the auditor. In the
settlement with the treasurer, the sum in question was not charged against
him. If the treasurer omitted to report the payment, the state may yet
recover the amount from his representatives, on the ground that it was not
taken into consideration in the settlement.
Judgment must be entered for the defendants.
Judgment for defendants.
Contributed 19 May 2008 by Deb Haines. Source: Reports of Cases Determined in the Supreme Court of the State of Illinois from November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor at Law. Volume XII. Reprinted from the Original Edition, with Annotations by William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 1881.
| Union | Johnson | |
| Alexander |
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Massac McCracken KY |
| Ballard KY |
