The opinion of the court was delivered by
Ross, J.The act of 1872, assessing a State tax of forty cents on the dollar of the grand list, allowed to the constables one fortieth of same for abatements. This, for the town of Essex, amounted to $74.73. Section 64, c. 84, Gen. Sts., renders said defendant French accountable to the plaintiff for so much of said sum as should not be allowed to him by way of -abatements. There was allowed said French by way of abatements, $24.16, leaving of $74.73 allowed by the State for abatements, $50.57, for which said French was accountable to the plaintiff. In failing to pay this sum to the town' treasurer, the defendant French committed a breach of his bond, which rendered all the defendants liable thereon therefor. The fact that the town had not exacted the excess of the abatements from former constables, but had allowed them to retain it as a perquisite, does not vary the legal duty and liability of defendant French to account for the same.
Sec. 65, c. 84‘, Gen. Sts., makes the first constable or collector of taxes accountable to the town for the excess of the State tax which may remain in his hands after satisfying the warrant of the Treasurer of the State. It is found by the referee that the listers of the plaintiff for 1872, in making the abstract of the grand list of the town which the town clerk returned, to the Secretary of State as the basis for the assessment of the State tax, failed, for some reason not disclosed, to include all the grand list. The sum thus left out of the abstract was $644. Consequently, the assessment of a tax of forty cents on the dollar of the entire grand list of the plaintiff for that year produced $257.35 more than was called for by the Treasurer’s warrant to be paid into the State treasury. This sum the defendant French, as first constable or collector of taxes collected, or should have collected, as is disclosed by the report of the referee, and failed to pay it over to *418the town treasurer. He claims that this sum is not such an excess as is contemplated by sec. 65. Doubtless it is a larger sum than was contemplated by said section as arising ordinarily from the assessment of the State tax. But the statute has not limited the amount nor kind of excess for which the collector .shall be accountable. It is evident that it was the intent of the statute to make the excess of the state tax, from whatever cause arising, payable to the town treasurer. It would be not only unjust but unconstitutional to assess, and arm the constable with power to compel the payment of, a tax for his own gain. That would be taking the property of the tax-payer for a private purpose. When paid into the town treasury, it is held for public use and purposes, as much as when paid into the State treasury. If the listers of the town, in. making the abstract, acted corruptly towards the State — although there is no evidence that they so acted, and the presumption is that the discrepancy between the abstract and grand list arose from mistake, innocently — it furnishes no reason nor justification for the defendant French’s acting in like manner, against the plain provisions of the statute.
Judgment affirmed.