This suit was brought in the Circuit Court for Charles County against the appellant as surety on a tax collector's bond, to recover the sum of two hundred and three dollars, alleged to have been collected by William A. Fisher, as collector of taxes for the Second Collection District of Charles County, for the year 1899, and not paid over to the County Commissioners of that county or their order, as required by sec. 44, of Art. 81, of the Code of Public General Laws.
The condition of the bond is "that the collector shall well and faithfully execute his office, and the several duties required of him by law, and shall well and truly account for and pay over to the County Commissioners of Charles County or their order, the several sums of money which he shall receive or be amenable for by law, at such time as the law shall direct."
The record presents the county order which is the subject of controversy in the case, and it is as follows:
County Commissioners of Charles County, Md.
No. 419. La Plata, Md., Sept. 3, 1900.
To Wm. A. Fisher, Collector 2nd District.
Pay to ............................. Chas. A. Mason or order
Two hundred three .............................. 23-100 dollars,
on account of Insane Pauper Fund for 1900.
Levy of 1899.
$203.23-100.
F.D. Mudd,
Endorsed Clerk and Treasurer.
Chas. A. Mason,
T.L. Twiford.
It appears from the record that the suit in the Court below was a joint one against the principal and surety, but as the collector was returned non est, and had absconded from the county, the trial was had against the appellant alone.
At the trial the defendant pleaded, first, that the order set out in the declaration and purporting to be the order of the County Commissioners of Charles County was not, either in form or in fact, an order of the County Commissioners; second, that the order was not drawn upon a proper fund.
Issue was joined on replication to the first plea, a demurrer was filed to the second plea, and the Court sustained the demurrer. *Page 172
There were three exceptions taken by the defendant at the trial, two to the admissibility of evidence offered on the part of the plaintiff and one to the rejection of the defendant's prayers. The judgment being against the defendant, it has taken this appeal.
As the principal questions involved on the appeal arise on the pleadings and the exceptions, they can be considered together.
It is admitted that Fisher, the collector, was duly appointed by the County Commissioners of Charles County and the defendant was surety on the bond; that the County Commissioners duly imposed and levied the taxes for the year 1899, as prescribed by law, and delivered a copy of the levied list to the collector for collection, and that the collector failed to collect and pay over the sum here in dispute to the County Commissioners or to their order as required by law.
The plaintiff to maintain the issue gave evidence that F.D. Mudd was the Clerk and Treasurer to the County Commissioners in the years 1899 and 1900; that the county order now in controversy was written and signed by him on September 3rd, 1900, and was issued by authority and direction of the County Commissioners of Charles County.
There was further testimony that the order was issued by the clerk, upon the verbal direction of the County Commissioners and it was their custom to give verbal orders to him to issue such county orders upon tax collectors for the payment of money due by them, and that in this instance there was no entry made among the records of the proceedings of the County Commissioners showing the issuing of this order.
There was also evidence that the order in question was duly assigned by the payee, Mason, to the plaintiff and that the collector sometime in the month of December, 1899, promised to pay the amount of the order to the plaintiff.
Upon this state of the case, as presented by the record, the appellant contends that inasmuch as the alleged county order was not signed by the County Commissioners or by the *Page 173 president of the board with the seal of the board attached, it was not a legal order of the board, and being a nullity, there can be no recovery in this suit. We cannot agree to this contention.
Now it appears from the order sued on, and from the uncontradicted evidence in the case, that this order was drawn and signed by Mr. Mudd, the clerk and treasurer of the Board and was by the special authority of the Board of County Commissioners of Charles County so directed to be drawn. The fact that the clerk was verbally directed to draw the order, and he failed to make this entry on the minutes and among the proceedings of the board, would not of itself invalidate the order or relieve the collector from paying the money to the County Commissioners. In the case at bar, the order was a written one, was recognized by the collector as an order of the County Commissioners, and he promised to pay it.
The next question to be considered is raised by the demurrer to the second plea, and that is, was the order in question drawn on a proper fund.
By the 7th section of Article 25 of the Code, vol. 1, page 408, it is provided, that the County Commissioners shall levy all needful taxes on the assessable property within the county, liable to taxation and provide for collecting the same, and they may make such levy in whole or in part by estimate * * * and shall pay and discharge all claims on or against the county, which have been expressly or impliedly authorized by law.
And by the 44th section of the 81st Article, it is further provided, that every collector receiving a copy of the assessment or rate, shall, within thirty days thereafter, proceed to collect the same, and shall pay the county tax to the County Commissioners or their order, within six months after receiving the copy thereof; and all monies levied for educational purposes by the County Commissioners of the counties shall be levied separately and distinctly from the other items of taxation, etc., etc. *Page 174
It will be thus seen that the County Commissioners are required by law to levy by estimate a sufficient sum to cover and discharge all claims on or against the county, authorized by law, except monies levied for educational purposes, as provided by section 44 of Article 81, of the Code, and the collectors are required to collect the money thus levied and to pay the same to the County Commissioners, or their order.
Under the law, then, all money levied for educational purposes shall be levied separately and distinctly from the other items of taxation. The levy for county purposes is payable to the County Commissioners or their order and the school levy is payable to the School Commissioners of the county.
The order in this case, then, being drawn payable out of a fund levied for county and not school purposes, was a proper order, and was payable out of any funds in the hands of the collector not otherwise appropriated. The condition of the bond was that the collector would pay to the commissioners of Charles County or their order, the several sums of money which he shall receive or be answerable for by law, at such time as the law shall direct. This the collector, in this case, has failed to do, and there can be no question, as to the surety's liability.
It follows then, that the demurrer to the second plea, was properly sustained. The defendant's prayers were properly rejected and as we find no error in the rulings of the Court on the first and second bills of exception as to the admissibility of evidence the judgment will be affirmed.
Judgment affirmed with costs.
(Decided December 4th, 1903.) *Page 175