#### Winchester, County Treasurer, vs. Tozer, Town Treasurer, and others.

*Town Treasurer*— *Pa/ymnts to County Tk-easurer.*

Under ch. 18, R. S., a town treasurer who has not "been able to collect *all*the taxes called for by his warrant, is entitled, after paying the *state*taxes, to retain the amount specified in his warrant for town taxes, paying to the *county*treasurer only the *balance*of the amount in his hands.

APPEAL from tbe Circuit Court for *Bierce*County.

This action was brought against tbe town treasurer and bis sureties, for an alleged default of said town treasurer to pay over'to'the plaintiff, as county treasurer, a sum of $1,152.55, entered upon tbe assessment roll and collected as county taxes. Tbe grounds of defense will sufficiently appear from tbe opinion. Tbe *313circuit court rendered judgment for the plaintiff, and defendants appealed.

*P. V. Wise,*for appellants.

*J. O. Button*and *J. S.*White, for respondent:

The assessment roll specifies the amounts to be collected from each person for the state, the county, the town, etc., severally. The warrant is based upon the theory that each of said amounts will, be paid, and commands the town treasurer to dispose of said several amounts according to the purposes for which they were raised. The statute (R. S. ch. 18, sec. 91) expressly provides for giving the state tax preference ; and, again, a preference is given (sec. 92) to school, poor and bridge funds. But in each case it is by express provision, and not left to inference. Were it the intent of the statute that all taxes should be primarily a town fund, subject only to the precedence of the state tax, the amount of revenue required of a town would have been assessed upon it in gross, and all direct taxation would have been a town tax. .Again, had it been the intent that the county tax should be applied upon the town tax until the latter was satisfied, county orders would not have been made receivable (sec. 72) until a sum equal to the town tax was collected.

Cole, J.

This is an action upon a town treasurer’s bond, given in pursuance of section 57, ch. 18, R. S. The breach complained of is, that the town treasurer has not faithfully and truly accounted for and paid over all the county taxes which have come to his hands. It appears that the town treasurer did not collect upon the assessment roll a sufficient amount to pay both the town and county taxes assessed upon the property of his town. He therefore gave the town the preference, and retained the money sued for, to meet the delinquency or deficit in the town taxes. And the question is, Had he a right to do this under the statute *%*This question is *314not free from difficulty; but, looking at the various provisions of tke statute upon tke subject, we tkink tkey give tke taxes for town purposes a preference over tke county taxes. And tkis view derives support from tke language of tke tax warrant under wkick tke town treasurer acts. Tke form of tkis warrant is given in section 61, and directs tke town treasurer, after paying tke county treasurer tke state taxes, to retain and pay out, as town treasurer, tke amount specified tkerein as town taxes, and “ *the "balance of said moneys*” ke is required to pay tke county treasurer for county purposes. Tkis phraseology of tke warrant might not be deemed conclusive upon tke point, were there nothing else in tke statute showing tkat tke town .was to kave tke preference. But section 91 provides tkat tke town treasurer skall retain in kis hands tke amount specified in kis warrant to be paid into tke town treasury, together witk kis fees, and skall, on or before tke day specified in kis warrant for paying tke money therein directed to be paid tke county treasurer, pay to kirn tke sum so directed to be paid in tke manner required by law; *and, in emery case,*tke town treasurer skall pay over tke *full amount of state tax, though it may occasion a deficiency in the town taxes.*Now, if tke county taxes were likewise to kave tke preference, it is a little singular tkat tke state taxes alone were here mentioned. Again, sections 93 and 94 prescribe tke manner in wkick tke town treasurer skall make return to tke county treasurer of tke delinquent taxes. And section 95 declares tkat when tke town treasurer has made kis return, and annexed thereto kis affidavit, etc., “ke skall thereupon be credited by tke county treasurer witk tke amount of taxes so returned as unpaid, and doubly assessed.” While tke next section (96) says, tkat, upon tke settlement thus being made, tke “county treasurer skall indorse tke bond of tke town treasurer filed in kis office as satis ■ fied and paid; and tke indorsement so made skall *315operate as a full discharge of the *bond,”*unless it afterward appear that the return is false.

Subsequent sections of this chapter direct how the county treasurer shall proceed against the town treasurer, in case the latter neglects or refuses to pay over or account for moneys in his hands, as required by law. And if the county treasurer does not, in his proceedings against the town treasurer, collect the whole amount of moneys due from the town treasurer, then the county treasurer is directed to first retain the amount of the state tax which should have been paid him by the delinquent town treasurer; and next, he shall “pay over the amount of the town and local taxes to the officer or person entitled to receive the same, *and the balance, if any,*he shall retain for county purposes.” Sec. 107. Here, again, the town is to have the preference where the Whole amount cannot be collected of the town treasurer.

Section 169, however, seems to contemplate that when the delinquent taxes are collected by the county treasurer, by sale for taxes or otherwise, the county is to have the preference over the town. But this is the only instance where that preference is given.

Section 72, so much relied on in the argument by the counsel for the respondent, does not seem to us to have much bearing on the question we have been considering. Of course, if there is a deficit in the amount collected for town and county taxes, the town may prefer to take county orders in payment of its deficiency, to waiting to have the money raised by sale for taxes.

It follows, from these views, that the judgment of the circuit court must be reversed, and the cause be remanded with directions to dismiss the complaint.

*By the Court.*— Ordered accordingly.