concurring. I concur fully in all that is so well said in the opinion of the court in this case.
1. The contract which defendant claims has been violated by plaintiff, and for the breach of which defendant claims damages by way of counterclaim, was entered into by plaintiff *674by legislative authority. Acts 1895, chap. 182. Without such act it had no power to make the contract, but must pursue the remedies provided in its charter for the collection of al] taxes which had been levied for municipal purposes. Gatling v. Commissioners, 92 N. C., 540; Cooley on Taxation, pp. 15 and 16. When Sutton and his associates agreed with plaintiff to collect “back taxes” by suits at law under the. act for a percentage of the collections actually made, they did so with full knowledge that such method of collecting plaintiff’s taxes could be abolished at any moment by legislative will. They acquired no vested rights which could not be revoked. The power to levy, assess and collect taxes conferred by the legislative power of the State is a governmental function and cannot become the subject of vested rights. It is held at the pleasure of the legislative authority and it must necessarily follow that the repeal of the law by the supreme legislative power, by which the right to collect taxes by means of suits at law is destroyed, will not make the municipality, liable to attorneys enrployed solely upon a commission basis, for damages for an alleged breach of the contract of employment. They accepted employment upon the express condition that their fees should be dependent solely upon their collections and with full knowledge that the continuance of the contract must terminate if the act should be repealed. There is no right of property in the remedy for the collection of taxes given to the city which is not entirely under the control of the Legislature. Cooley Const. Lim., p. 125; Gatling v. Commissioners, supra. Sutton and his associates could acquire no property rights in the collection of taxes or in the city tax book. Wallace v. Trustees, 84 N. C., 164. When the Act of 1895 was repealed by the Legislature of 1897, chap. 517, the so-called contract was annulled, not by the plaintiff, but by the supreme legislative power. If it was annulled at the time when Sutton and his associates had made preparations to bring suits *675and bad issued summons and filed complaints, it is tbeir misfortune, nor tbe fault of tbe plaintiff. Tbeir compensation would be that wbicb they bad received already as commissions in tbe general collection of back taxes under tbe agreement, wbicb appears to bave been no inconsiderable sum. If they continued to sue after tbe repeal of tbe act, it was tbeir folly. If they bave any other grievance, tbey must look to tbe Legislature for redress. Tbe contract wbicb an attorney may make with an individual or a private corporation for tbe collection of debts, or other personal services, has no relation to a contract for tbe collection of taxes. It stands upon a different footing and is not so entirely subject to legislative control.
2. If there were any legal merits in tbe counterclaim for damages for breach of contract, it could not be pleaded as against a demand for tbe $1,076.52 tax money collected by tbe defendant and in bis bands. No counterclaim is valid against a demand for taxes. Gatling v. Commissioners, supra, This must likewise be true when tbe fund sought to be recovered is tbe proceeds of tbe city tax lists in defendant’s bands for collection. “No set-off can be made to tax money while on tbe way from tbe taxpayer to tbe treasurer of tbe town or city imposing the tax.” Waterbury v. Lawler, 51 Conn., 171; Waterman on Counterclaim, sec. 38; Wilson v. Lewiston, 1 W. & Seg’t., 428; Com. v. Rodes, 5 Mon., 318. If tbe defendant bad any cause of action, bis remedy would be by original suit against plaintiff in ease tbe authorities refused to recognize bis demand.