Plaintiff sued defendant to recover uncollected school taxes. From a judgment for plaintiff, defendant appeals.
1. It is claimed defendant is liable for school taxes assessed against personal property which the city treasurer might have collected but did not collect. The right to recover is based upon 1 Comp. Laws 1929, § 3485, which provides:
"All losses that may be sustained by the default of any township officer in the discharge of any duty *Page 419 imposed by this act, shall be chargeable to such township. All losses by default of any county officer shall be chargeable to such county, and all losses by default of any State officer shall be chargeable to the State."
If defendant is liable, it is solely by reason of this statute. Hart Township v. Oceana County, 44 Mich. 417. The statute is in derogation of common law, is to be strictly construed, and nothing is to be taken by implication. There is nothing in the statute in relation to city officers and city liability. The statute expressly enumerates the things covered by it, and this express enumeration impliedly excludes from its terms the things not mentioned. No express statute makes the city liable for the failure of its city treasurer to collect school taxes.
2. No charge of embezzlement or defalcation on the part of the city treasurer is made. It is not claimed he is a defaulter. If the city treasurer had collected school taxes and neglected to pay them over, a different question would be presented. It is claimed the city is liable by reason of the default of the city treasurer. Default is a term with many meanings, its meaning in a particular case depending on its use. 1 Comp. Laws 1929, § 3485, is a part of the general tax law relating to accounts and the settlement thereof. Default, as used in this statute, means failure to account for and pay over money collected. It means something different from negligence. State, ex rel. District Att'y, v. Sheriff, 45 La. Ann. 162 (12 So. 189). It means defalcation in office — failure to account for and pay over money collected — the nonpayment of money. Williams v. Stern, 5 Q. B. Div. (1879) 409. It means being guilty of conduct which, under the Constitution, would render the city treasurer ineligible to office. *Page 420 There is no claim the city treasurer has embezzled or defaulted in the payment of money, and, unless he is guilty of such misconduct, the city is not liable.
3. Prior to the enactment of the school code in 1927, defendant might have been liable under 2 Comp. Laws 1915, § 5706, for the full amount of school taxes on the assessment rolls of the city, but this statute was amended by 2 Comp. Laws 1929, § 7470, so as to make a township treasurer liable only for the full amount of school taxes collected. The same idea is incorporated in I Comp. Laws 1929, § 4124, which provides:
"In case the township treasurer shall not collect the full amount of taxes required by his warrant * * * such portion thereof as he shall collect shall be retained by him and paid out."
The city is bound by the acts of the city treasurer in substantially the same cases that the township is bound by the acts of the township treasurer. An examination of these statutes shows that under 2 Comp. Laws 1915, § 5706, it was the duty of the city treasurer to retain in his hands the full amount of school taxes on the assessment rolls whether collected or not, while by the school code it is made the duty of the city treasurer to retain in his hands, out of the moneys collected by him, the full amount of the school taxes collected. In the former case the amount to be retained was fixed by the amount assessed. Under the present statute the amount the city treasurer is to retain is fixed by the amount collected.
4. It is not claimed the city treasurer of defendant has not paid to plaintiff all moneys for which a proper warrant has been presented. It is not claimed he is not ready and willing to pay over any moneys which he has collected. *Page 421
5. School taxes are collected and to be collected by the city treasurer, but they are not, when collected, received for or by the city. They do not become a part of the funds of the city. They are in the city treasurer's hands for school purposes, collected by him, and to be paid out by him only on the order of the proper officers of the school district. The treasurer of the school district is the disbursing officer of the district. The city has no fiscal duty in relation to school funds. When they are paid out by the city treasurer, he is not bound to look beyond the proper order of the officers of the school district for his warrant in paying them. In finally disbursing the funds raised for school purposes, the members of the school board are not agents of the city. The city treasurer is not the agent of the city in the collection of the school taxes and their payment to the treasurer of the school district. The collection of school taxes by the city treasurer is not a city matter but a school district matter. For convenience, and to avoid a multiplicity of officers, the city treasurer is charged with collecting school district taxes. This is a matter of public administration. It does not make the city treasurer a city agent in collecting these taxes. The city is not in any sense, as regards this duty of the city treasurer, a principal.Dawson v. Township of Aurelius, 49 Mich. 479.
The city treasurer, in the collection of school taxes, is but the agency designated to collect school taxes and pay them over to the school district. The school district, not the city, in the performance of this function, is his principal.
"For simplicity and convenience of administration the law makes use of the township officer to *Page 422 gather and pay over the county tax. But when it does so and goes no further, the implication is that the local officer is for such function the official agent of the county, and not of the township, and that the county must look elsewhere than to the township for indemnity in case of his misconduct." HartTownship v. Oceana County, supra.
6. The city treasurer is not a party to this suit. The question of his liability for negligence is not involved and cannot be conclusively adjudicated in a suit in which he is not a party.
Under the circumstances, plaintiff is not entitled to recover. Judgment should be reversed, but without costs.