
    
      The Treasurers vs. Samuel Burger.
    
    The tax collector of St. Phillip’s and St. Michael’s, for collecting' the poor tax for Charleston neck, cannot charge a higher commission than $2 70 per cent.
    Merely for collecting the poor tax, the commissioners of the poor cannot allow a higher per centage than that fixed by law ; but if the collector performs an additional duty, which the commissioners would be obliged to do by an agent, then he may be allowed additional compensation for it.
    
      Before Gantt, J. at Charleston, May Term, 1831.
    These were three actions of debt, on the defendant’s bond as tax collector of the parishes of St. Phillip’s and St. Michael’s. The plea in each case was performance, and the replication set forth a breach in retaining money received to the use of the poor of Charleston neck.
    The defendant was elected tax collector of St. Phillip’s and St. Michael’s, in 1816. He accounted from year to year with the commissioners of the poor for Charleston Neck, and retained, by their consent, 10 per cent, as a compensation for collecting the poor taxes. In 1820 he was re-elected, and continued to retain the same commission, with the consent of the board. In 1824 he was elected a third time, and a new board objected to his charges of 10 per cent, which he had continued from that time to retain against their consent. These actions were brought to recover the excess retained by the defendant on the amount of poor taxes, over and above $2 70 per cent, which is the rate allowed by law for collecting the general tax.
    For the defendant, Mr. Timmons, the predecessor of Mr. Burger, proved that he was allowed 10 per cent, on the poor tax — and that it was a reasonable compensation. Mr. Gibbes, many years a commissioner, always understood that the tax collector was allowed 10 per cent. Mr. Fur-man gave evidence of the trouble which the tax collector of St. Phillip’s and St. Michael’s has more than the tax collectors in other districts. In all other districts, the same persons pay the general and poor tax, whereas, in St. Phillip’s and St. Michael’s, the poor tax is paid by that portion, only, of the inhabitants, who live on the Neck, and the tax collector is therefore obliged to discriminate.
    Under the charge of his Honor, the presiding Judge, the jury found for the defendant, and the plaintiff appealed, on the grounds,
    1. Because the compensation of the tax collector for the service in question, is fixed by law, and an agreement for allowing more is illegal.
    2. Because the defendant could not retain more than $2 70 per cent, on the amount of poor taxes, with or without the consent of the commissioners.
    
      Petigru and Cruger, for the motion.
    -, contra.
   Curia, per

Johnson, J.

The leading question is, whether the defendant’s commissions or compensation for collecting the poor tax for Charleston Neck, is, or is not, prescribed and limited by law. It seems that formerly the commissioners of the poor throughout the State were left to adopt their own mode and employ their own agents to collect the poor tax ; but the Act of 1797, 2 Faust, 149, directs that in all the counties where county courts were established, they should be collected by the collectors of the general taxes, and that they should' be allowed “ the same per centage” therefor, as for collecting the general taxes. At that time there was no county court established in Charleston district, and the commissioners of the poor for the Neck, went on as before to collect to collect the poor tax by means of their own collector, allowing him such compensation as, in their judgment, was reasonable and just. The Act of 1803, 2 Faust, 492, makes it the duty of all the tax collectors throughout the State to collect the poor taxes, and provides that they shall be allowed therefor the <! usual commissions and the Act of 1817 limits the compensation of the tax collectors for St. Phillip’s and St. Michael’s parishes (within which the Neck is included) to S$2 70 per cent. “ on all sums collected by them respectively and thus the law now stands. The expression, usual commissions, used in the Act of 1803, must necessarily have had reference to those prescribed by the Act of 1797, for there was no other general standard to which it could be referred. The contracts between the commissioners of the poor, in places where county courts had not been established, and their collectors of the poor tax, necessarily varied in different places, and, at the will of the parties, might have been varied in amount in the same place, in different years ; and it is obvious that the legislature could not have intended to have referred to a standard so equivocal and uncertain ; and according to this construction of these Acts, the defendant was only entitled to the same commissions for collecting the poor tax, as for the general tax. But the Act of 1817 puts this question beyond all controvery. The Act of 1803 makes it his duty to collect the poor tax for the Neck — and the Act of 1817 allows him $2 70 per cent. “ on all sums” collected by him. Now, the poor tax is a part of the sums collected by him in virtue of his office of collector of the general taxes, and if he may retain 10 per cent, for collecting them, he may, by the same rule, retain the same amount for collecting the general taxes ; for there is no discrimination between them in the Act, nor in point of fact, except that the general taxes are paid into the common treasury, and the poor tax to the commissioners. The position that the defendant was discharged by the receipts of the commissioners, cannot be maintained. The tax collector is the agent of, and employed by, the State, and is responsible to the State in its corporate political character, and no individual can absolve him from the obligations imposed by law, unless the power to do so is derived from the law itself. The obligation imposed on the defendant was to collect the poor tax, and by law he is entitled to retain $2 70 per cent, on the amount for his services, and no more. If the commissioners may so far discharge him from this obligation, as to allow him to retain 10 per cent, where is the limitation ? — why not 50 per cent, or the whole 1 — admit the principle, and the treasurer may, in defiance of all law, cut up the revenue by the root, and allow the tax collectors throughout the State to retain all the taxes as a compensation for collecting them. The Act of 1803, before referred to, provides that the tax collectors shall be furnished by the commissioners of the poor with an account of the poor tax which each person is bound to pay, at least one month before he is bound to make his returns ; and it is said that the additional sum allowed the defendant by the commissioners, is in consideration of his undertaking, himself, to ascertain the amount each is bound to pay, and relieving them from that trouble.

Each board of commissioners necessarily know the sum wanted for the poor of their respective districts or parishes, and the usual mode of ascertaining the sum which each individual is bound to pay, is to ascertain what proportion the sum wanted bears to the general taxes, and instead of being furnished with a list of the names of each individual, the tax collectors are instructed to collect from each individual a certain per centage on his general tax, as 10, 15 or 20 per cent, and this found sufficiently accurate impractical purposes. If it is managed otherwise in this instance, (of which, by-the-by, there is no proof,) it is, perhaps, the only instance in the State ; and I am not aware of any other instance in which an additional compensation has been claimed or allowed on that account.

It is supposeed that the difficulty of ascertaining what each individual on the Neck is bound to pay, is increased by the circumstance that the poor rates within the city are .collected by the city authorities, but I confess I am not able to see the difficulty. In other places one year furnishes a rule for another, varied only by the amount wanted for the poor. If it produces an excess in one, it is carried to the credit of the next. If there is a deficit, it is supplied by a further assessment for the next year ; and this mode is found to operate well elsewhere — 'and I cannot see why it should not here — at any rate, the commissioners have no authority to transfer their own labours to the tax collectors, and make them compensation out of the public funds. The duty of the collector is to collect from each individual what he is directed, and no more.

The usage under which both the commissioners and the defendant acted, furnishes the best reason for believing that both parties acted in good faith, and in the belief that they were authorized by law ; but that usage cannot abrogate a positive enactment of the legislature.

Motion granted.

O’Neall, J.

concurred.

Note, by the Court. We have no evidence as to the nature or extent of what is supposed to be additional labor and trouble in collecting the poor tax on the Neck, and it may be that there is something in it which has not come to the view of the court. If it be true that the Collector performs a duty which the Commissioners would be obliged to do by an agent, then of course it would be the subject of contract between them, or of compensation upon a quantum valebat, of which the defendant will have the benefit on the new trial.  