Under the act of 1861 the county treasurer was charged absolutely with the whole amount of the tax duplicate, from which he could only be exonerated to the extent and in the manner provided in the act. There was much reason, therefore, in the view that when he appointed a collector of delinquent taxes he was appointing a personal agent to perform a duty for which he was himself in all events personally liable. But when by the act of 1891 the treasurer was relieved from this absolute liability and the taxes, if previously charged, were credited back to him, and charged to the collector who was required to give bond to the county, the collector ceased to be the personal agent of the treasurer to perform a duty solely incumbent on the latter, and became the agent or officer of the county, to whom the money was due and to whom he was directly to account. The underlying intent common to both statutes is that the officer responsible for the money shall have the appointment and control of the agent of collection.
It is true that under the act of 1891 the collectors are to be “ appointed or elected in the manner now provided by law in each county,” and therefore the respondent was properly appointed under the act of 1861 by the treasurer in office at the time. But the treasurer could no longer be considered as in the position of an individual appointing a personal agent. He was clearly acting virtute officii in the appointment of a subordinate county officer, and under the constitution the power of removal passed to his successor with the succession to his office.
The appellant is in no danger of the hardship that his argument appears to anticipate. However direct and absolute the charge of the amount of the tax duplicate to him under the statute, his responsibility attaches by reason of his occupancy of the office of collector, and will cease when that passes to his successor. His liability to account will not extend to anything not arising from his administration of the office while he occupied it.
Judgment affirmed.