dissenting.
The divergence in views between the other members of this court and myself is on the construction of the various statutes cited or quoted from in the majority opinion. It will not be disputed that it is competent for the State to make the county or other district of taxation responsible and liable as principal debtor for the quota of State tax assessed within it. Cooley on Taxation, 468.
Provisions to this effect are common in statutes and our statute so provides in distinct terms. The only exception in our statute making the county responsible to the territory or the State for the amount levied for territorial or State purposes is for such amounts as are certified as double and erroneous assessments. Ho allowance or credit can be given to any county, other than this, of the tax levy remaining uncollected. Rev. Stat., Sec.’ 3836. Sec. 3837 following provides for an annual settlement by the county treasurer, who is collector of taxes for his county, with the territorial or State treasurer for the tax levy for the preceding year and this settlement *319must be a “full and complete settlement.” It further provides that delinquencies on the part of any county in the payment of the territorial or State levy shall bear interest at the rate of 8 per cent, per annum after the 15th day of January “when said levy was payable to the territorial treasurer;” and in ease of any delinquency on the part of the county, it is the duty of the territorial or State treasurer to cause an action at law to be brought against such county in the name of the territory (State) to recover the amount of any such delinquency. This action was brought under this clause of the section. As these sections 3836 and 3837 were originally enacted together, Ch. 103, Sess. Laws 1882, the one fixing the liability of the county and the other providing for a full and complete annual settlement for the tax levy of each year and fixing the liability of the county for arrears in the tax levy of the year for which settlement is made, they should be construed together. Thus construing them, no allowance is to be made to any county for delinquent taxes or taxes uncollected, or for any part of the tax levy for the year uncollected, except for double and erroneous assessments certified at the time of the annual settlement, and upon the failure to make this settlement, action may be brought against the delinquent county. Its delinquency is the delinquency of its treasurer and collector of taxes, and if suit may be brought on su'ch delinquency directly after this annual settlement is made, I can not conceive how any other credits may be allowed the county than those certified and reported at this “full and complete” annual settlement of the tax levy for the year. If a mistake is made in the matter of credits as they existed at this time, undoubtedly they might be corrected, but not as to subsequently discovered double and erroneous assessments. By section 1098 of the Bevised Statutes, the county treasurer as a collector of the county revenue must exhibit his vouchers and accounts to the territorial or State auditor on or before the third Monday in December of each year to be audited, adjusted and settled by the auditor, who must, without delay, report the balance found due to the treasurer. This auditing of the accounts of the county treas*320urer seems to me to be the basis on which the full and complete annual settlement is made with the territorial treasurer by the county treasurer on or before the first Monday in January following, as provided in section 3837. The petition shows that all proper credits were given by the auditor on the tax levy for each year, as certified for that year. Afterwards, double and erroneous assessments were certified for the tax levies of the years settled for and these were disallowed as not presented in time to the auditor and I think properly so. A full and complete settlement for the tax levy for a certain year precludes the idea of a settlement which may thereafter be re-opened and set aside.
I see the best of reasoning in support of my views. The exception like all provisos should be strictly construed. It is an unusual exception in statutes making the county responsible for the amount of the territorial or State levy made by the county board. The territorial board made the levy upon the returns sent up by the several county boards, and upon these returns was the amount estimated for the support of the territorial government. Each county is chargeable with this levy upon the property so returned, less only such double and erroneous assessments as are certified at the time of the full and complete annual assessment of the tax levy for the year. If this claim is for a rebate of territorial taxes after this settlement was made, I do not think that the State is chargeable with the loss. It is doubtful if the board of county commissioners can rebate territorial or State taxes which have been paid to the State, as it has no funds out of which it can refund the same to the tax payer, and it is absurd to say in effect that such moneys can be appropriated out of the State treasury by the county board.
The State has a right to secure its revenues and to provide against unreasonable or unanticipated loss and shrinkage therein, by fixing some date when the liability of the counties becomes absolute, and I think the statute so provides. It is impossible to devise any system of taxation that shall be perfect. Every safeguard seems to have been made by statute to protect the tax payer against fraud, impartiality and oppres*321sion and to secure as correct and complete an assessment roll as can be made by attentive and diligent county officers before tbe amount of tbe assessable taxation in tbe several counties is reported for tbe use of tbe territorial or State board for tbe purpose of making tbe State levies. Even after tbis assessment is made^ and at tbe time of tbe annual full and complete settlement provided for any errors discovered in making double and erroneous assessments may be corrected and tbe county credited tberefor. Subsequently discovered errors, to my mind, may not be corrected. This view of tbe statutes is no more unjust to tbe county than requiring it to be responsible for State taxes on tbe delinquent list which may never be collected. To bold otherwise, is to make the county board the final arbiter in determining tbe amount of taxes due to tbe State and to place tbe State revenues for that county under its control; in other words, to place the revenues of a sovereign State at tbe mercy of subordinate agents, in whose choice the State has had no voice and for whose acts or laches it can not be made ■ responsible. All tbe credits claimed by Laramie county, as disclosed by the petition, were those made on tax levies that had been or should have been adjusted and settled at tbe proper statutory times, when such credits were not, under the statute, available.
It is true that this suit was not upon any settlement between the territorial and tbe county treasurer. If such a settlement had been made, there would have been no occasion for the suit. Tbis action is based upon certain amounts of tbe tax levies for certain years unpaid when due by the county of Laramie through its county treasurer and ex officio collector of taxes. The county asked certain credits which were not interposed timely or at the statutory periods fixed for annual settlements, which it seems to me must, of necessity, be final and conclusive settlements up to those periods. ,1 do not think it possible to imagine a case where a county treasurer “can give away the county revenue or bind the county to the payment of unjust or unauthorized charges in favor of the State.” The law has erected too many safeguards to permit such an unusual and extraordinary generosity on the part *322of any collector oí tlie revenue. It is of no importance in this inquiry to ascertain whether or not the certificate of the auditor of the amount found due by him in his auditing the accounts and credits of any collector of the revenue is prima facie presumptive or conclusive evidence in a suit brought thereon. This action is not brought against the collector of ■taxes and his sureties, and the legality of any defense they might make in such action except upon the certificate of the auditor or his quietus as it has been termed, is not before us.
This action is instituted against the county in its corporate capacity for certain moneys that appear to me to be due on its tax levies for certain years to the State, and which were withheld as matters of credit, which I think were properly disallowed by the auditor. I have no doubt that in such a suit as this the action of the auditor in rejecting such credits may be reviewed, but I am of the opinion that his action in disallowing these credits was proper and warranted by the spirit and the letter of the law. This appears to be the first suit of the kind ever brought in this jurisdiction. For years, the view of the auditing department has been acquiesced in by other counties of the State. To allow such a defense as this will work a great hardship to the other counties of the State. It should not be allowed unless the statute plainly directs that it should be. State v. County of Kings, 125 N. Y., 312. In my view of the law, the credits preferred by Laramie county are plainly interdicted by the statutes bearing on the questions.
The demurrer to the petition of the State should have been, in my judgment, overruled.