I concur in the conclusion of the Court in this case, but not in all the reasons assigned by the majority opinion.
In my opinion the demurrer to the second plea of the defendants was properly sustained. The treasurer of Harford County is an elective official. His relations to the County Commissioners are fixed by the statute, which defines his and their duties in reference to the collection of taxes. That statute provides precisely what allowance may be made by the commissioners on the tax lists placed in his hands for collection and on what conditions. Unless these conditions are substantially complied with, the treasurer is responsible for the collection of the entire list, except such part as he is able to prove, in a suit on his bond, could not have been collected by him by the exercise of due diligence in the performance of his duties.
He is not a guarantor, but his bond is responsible for any loss resulting to the county or State by reason of negligence or default on his part, and it is not, I think, within the power of the County Commissioners to release him or his bond from the consequences of such negligence or default.
If there was a settlement between the commissioners and the treasurer, as averred in this plea, such a settlement should be sustained, if at all, not because it was made, but because the allowances made were fairly within the provisions of the statute; and there is no such averment.
Nor do I agree that it can be inferred (in any sense material to this case) "that the act did not contemplate that he would collect during the year the entire amount of the levy placed in his hands for any one year" simply because he is *Page 637 directed and required, on his retirement from office at the end of his term, to deliver to his successor all balances of taxes due upon the levies for which he is charged, and the successor is empowered and required to collect and enforce the payment of said taxes. I do not understand how there could be such an inference, as to taxes, the payment of which can be enforced at the time and in the manner prescribed by the statute, without nullifying the enforcement provision, which is express and positive.
The fifth prayer of appellants was properly refused, I think, without regard to the correctness of the ruling on the special exceptions to it, for reasons similar to those expressed above in support of the ruling on the demurrer to the second plea.
Nor do I agree that "the first prayer of the defendants was very nearly a correct statement of the law," and that its only defect was in failing to make clear that the burden of proof was on the defendant to show that he had used due diligence.
All the uncollected taxes for the year 1914 were barred by limitations, and there is no evidence tending to show that any of them could have been collected at the end of Shanahan's last term. For this reason, if for no other (and I think there are others), the prayer was properly refused. The obvious effect of the prayer would have been to confuse the jury by the introduction of entirely irrelevant matter.
But I agree that there was error in granting plaintiff's first, second and third prayers. There was also error in the ruling on the sixteenth bill of exception. The defendants should have been permitted to prove that some of the uncollected taxes were levied on corporations which had been dissolved before the taxes were levied, and which were at the time of the levy without any property applicable to the payment of taxes; and that certain taxes were on stock which had never paid dividends.
By reason of these errors, I concur in the conclusion of the Court. *Page 638