dissenting.
I see no reason for changing or modifying the views expressed in my dissenting opinion upon the original hearing (33 Pac., 993), and an examination of the authorities submitted since that time confirms me in my conclusion. Our revenue laws provide for a full and complete annual settlement of the tax levy each year between the territorial or State auditing department and the county treasurer as tax collector, and I think this prevents the reopening of any such “full and complete” settlement so made. Any other view would lead to confusion and delay in securing the revenues of the State. In the case at bar, such a full and complete settlement appears to have been made prior to 1888, and in the settlement of the tax levy of that year credits were claimed by Laramie county-for double or erroneous assessments in prior years, and in the settlement for the year 1889, credits were claimed for double or erroneous assessments for the year 1888. The territorial *329auditor disallowed these credits and suit was brought for the amount withheld. I think this action of the auditor was correct as the credits were not preferred within the time fixed by statute for the annual settlements. Ho other rule, it seems to me, can with safety be laid down in order to secure to the State promptness and certainty in the collection of its revenues.
The county is made responsible for its quota of the territorial tax, with the sole exception of such amounts as are certified to be double or erroneous assessments, and no allowance or credit can be given to any county for any part other than this of such tax levy remaining uncollected. Sec. 3836 Rev. St. This clearly refers to a credit upon the tax levy of ■the year and does not mean a collection of credits upon the tax levies of a number of years. If there is any doubt upon this proposition it is explained by the following section of the revision enacted at the same time with its preceding section, providing for a full and complete annual settlement of the tax levy of the preceding year and providing for the prompt institution of a suit for the delinquency of the county, which is that of its collector of taxes. The territory had, and the State now has, a summary remedy against the collector and his sureties in ease of a default in the amount found due by the auditor, if it be not paid within ten days after such finding. The auditor is directed to issue his warrant for such delinquency against the collector and his sureties to be made by the distress and sale of the chattels and real estate of the delinquent collector, and if his property be not sufficient to satisfy the amount of the warrant, then distress and sale of the property of his sureties may be made under the warrant. Sections 1698-1101, Rev. St., Wyo.
These summary remedies are held to be constitutional. Cooley on Taxation, p. 121. Casby v. Thompson, 42 Mo., 133. In a suit against a collector of taxes and his sureties where the collector is allowed credits for taxes not collected, when he shows that he has exhausted all legal means for their collection, it was held that such credits or deduction lists must be preferred and filed within the statutory time allowed *330therefor, or they will not he available for a defense, and under the same statute that the auditor has no authority to extend the time for the settlement, and further if a tax collector is equitably entitled to relief under such a rigid statute, the Legislature alone can grant it. State v. Lanier, 31 La. Ann. 423; State v. Guilbeau, 37 La. Ann., 718; State v. Viator et al., Id., 734. The reason for this strict rule is that revenue laws are sui generis and are not to be assimilated to those on any other subject.
I do not see why the same rule should not prevail in a suit against a county for a delinquency of the collector in nonpayment of any portion of the State taxes. Indeed, the Louisiana cases, supra, all seem to be cases where suits have been brought and the collector has been unable to make the same defense or introduce evidence upon it, as is claimed in the suit at bar. The remedy against the county ought to be as effective as a suit against her officer, and I think the legislature has so made it. It was well said in the ease of Commonwealth v. Luzerne County (Penn.), 15 Atlantic, 550, in the language of the nisi prius court, adopted by the supreme court: “Some effect must be given to the official action of “the accounting departments, and it matters little whether “that action be called judicial or administrative or ministerial. “At all events these departments form a tribunal of some sort “to which has been given the power of settling certain accounts “with the counties; and when they exercise the power of “settlement upon one of these accounts within their jurisdiction, the result of their action cannot collaterally attacked.” A number of Pennsylvania cases are cited in support of this statement, and a careful review of them will show that the action of the auditing or accounting department has been sustained and held to be final and conclusive, where no appeal is taken, an appeal lying in such cases by force of the statute of that State to the courts. Our statute does not allow such an appeal, and of course then the action of the auditing department would be final and no relief could be obtained except through the legislature. State v. Viator, 37 La. Ann., 735, supra. This is a provision of our statute: “If any per*331“son interested shall be dissatisfied with the decision of the “auditor on any claim^ account or credit, the auditor shall at “the request of such person, certify his decision, with his “reasons therefor, specifying the items rejected, if less than “the whole, under the seal of his office, and refer the same “to the legislative assembly.” Sec. 1710, Rev. Stat. Wyo. Here is an express provision for bringing a claim or a “credit” to the notice of the legislature through an official channel. This method of procedure has been well understood in the past, and there are two statutes bearing on the question, one approved Dec. 16, 1871 (Comp. Laws 1876, p. 516), authorizing the territorial auditor to settle with the treasurer of Carbon County, in the matter of paying over territorial taxes collected for the year 1870, upon the basis presented by said county treasurer and approved by the board of county commissioners of his county, and this law was passed under a statute nearly the same as that under consideration (Sec. 3836, Rev. Stat.), and the other statute (Ch. 70, Sess. Laws 1884) appropriates moneys out of the territorial treasury in full payment to the treasurer of Johnson County for moneys paid into the territorial treasury on the general assessment of 1883, “by reason of a correction in the assessment subsequent to the sending of the valuation to the territorial auditor,” and this act was passed when the statute was the same as now embodied in Section 3836 of the revision.
I do not say in a suit against a county that the defense might not be interposed that the auditor refused to allow a proper credit claimed at the proper time by the county as a double or erroneous assessment in the settlement of the tax levy of the year when such double or erroneous assessment was made. It seems to me that such defense could be set up, but certainly not one involving the resurrection of stale credits and those arising upon tax levies of preceding years. My construction of the statute I do not think is “unprecedented;” on the contrary, it is based upon the letter and the spirit of the statute and is in harmony with our entire system of taxation. I think I am supported by the Pennsylvania cases cited in Com. v. Luzerne Co., supra, and in the recent eases of Com. *332v. Philadelphia Co., 27 Atlantic, 546, and Com. v. Philadelphia City and County, Id., 551, and the Louisiana cases, supra. I find nothing in the citation from Cooley on Taxation, p. 718, that is contrary to these views; indeed, it ap-piears to me that all the authorities support me in my views.
Nor do I regard the limitations in the statutes as to the time when the full and complete annual settlement of the tax levy of the year shall he made as having the force of a statute of limitations against the county. There was no provision of law permitting the State to he sued, in the territorial statutes, and although the constitution (Art. 1, Sec. 8) provides that “suits may he brought against the State in such manner and at such times as the legislature may hy law direct,” yet no law has yet been enacted for.that purpose. The supreme court of Louisiana held in State v. Guilbeau, supra, that the tax collector of a county could not plead compensation when sued for taxes collected hy or chargeable to him, as this would practically allow him to sue the State, and it was said that the proper place to settle the matter was at the auditor’s office. Treasurer v. Cleary, 3 Richardson (S. C.), 372; Treasurers v. Hilliard, 8 Id., 412. Our revenue system makes each county the principal debtor and liable for the territorial or State tax apportioned to it. The State does not deal with individual taxpayers or assume any responsibility for the collection of the tax, but it deals directly with the county. The primary liability is with the counties, and the State looks to them alone for its revenues. State v. Baker Co. (Ore.), 33 Pac., 530; State v. Multnomah Co., 13 Ore., 287; New York v. Davenport, 92 N. Y., 604. In addition to this liability of the county, the statutes hold the collector of taxes and his sureties liable for the amount of State revenues as adjusted and settled by the auditor. This of necessity determines the liability of the county, as its default or delinquency can only be measured by the default or delinquency of its tax collector. Our territorial method of taxation is almost identical with the State system, as the laws have practically undergone no change by the transition from the territorial to the State condition. To support the territorial *333government a certain rate per centum of taxation was fixed by tbe territorial board of equalization upon the aggregate property returned by the county authorities and by original assessment made by the territorial board of telegraph and railway lines. This fixed rate was transmitted to the county officials and was levied by the county boards. I do not see that this makes any difference in ascertaining the liability of the counties and their tax collectors. It requires but a mere mathematical computation in the auditor’s office to determine the amount to be charged against the counties, by multiplying the aggregate property of the county by the rate per cent of territorial taxation, and this is as direct a charge of the State of territorial tax as if a certain amount of territorial tax had been directly apportioned to the counties. Ordinarily, if double or erroneous assessments have been made by the county boards, the county making the error ought to suffer, as the fault or mistake is that of county authorities. Our statute allows a credit for double or erroneous assessments if timely interposed, and with ordinary diligence these double' or erroneous assessments can be ascertained before the time of the annual settlement with the auditor. In Michigan, where the county authorities collect the State taxes and forward them to the proper State authority with a list of delinquent taxes for the State authorities to collect, the county is held to be a guarantor for the regularity and legality of the taxes, and in case any tax is set aside by proper State authority in the manner pointed out by law, so that the State does not receive its amount, then it is charged back to the county as so much previously credited without consideration, and the county is bound to make it good. Aud. Gen. v. Supervisors of Monroe, 36 Mich., 73. So in all systems, the State looks to the county either for the full amount of the revenue apportioned to it, or as responsible' for the amounts remaining uncollected, as the county is charged with the duty of making legal assessments and legal levies.
The exception and allowance of a credit for double or erroneous assessments should be construed so that it shall be preferred at the proper time and as excluding stale claims, *334in order that the estimates for State revenues may be correctly made and the State deprived of no portion of its revenues. The rule adopted by the auditing department excluding credits for double or erroneous assessments not preferred in the settlement for the year in which they were made, I think is a wholesome one, based upon the letter of the statute and in harmony with the revenue laws. It has been acquiesced in for many years, and I can be no party to formulating a new rule that it seems to me will result in great confusion, impair the promptness of the collection of the revenues and offer a premium to official sloth and negligence. Ho amount of sophistry will convince me that the State has lost of its revenues some eight thousand dollars by the decision of this court. This amount has been or must be borne by the people generally instead of that district where the mistake was made. This is unjust and inequitable. I trust that my brethren are correct and that these instances will be “rare,” but I fear it will lead to the resurrection of stale claims and inject in each annual tax settlement matters not properly connected with it, and this against the plain provisions 'of the law.
The motion for rehearing should have been granted.