
    No. 9333.
    The Board of Commissioners of Morgan County v. Gregory.
    Fees and Salaries. — County Treasurer. — Commission for Collecting Delinquent Taxes. — Under section 5 of the fee and salary act of March 8th, 1873, Acts 1873, p. 124, and section 155 of the assessment act of 1872,1 R. S. 1876, p. Ill, a county treasurer was entitled to charge and receive a commission of five per cent, on all delinquent taxes collected by him during the current year, paid voluntarily and without levy, and with-, out .reference to the particular time of the year at which such taxes may have been collected.
    Prom the Morgan Circuit Court.
    
      L. Ferguson, for appellant.
    
      G. A. Adams and J. S. Newby, for appellee.
   Niblack, J.

This was an action by John N. Gregory, late treasurer of Morgan county, against the Board of Commissioners of that county, to recover an additional compensation for the collection of delinquent taxes for the’ years 1873 and 1874. At the request of the defendant, the court made a special finding of the facts. The facts as found may be stated as follows :

That from the 5th day of August, 1873, until the 21st day of March, 1878, the plaintiff: was the duly elected, qualified and acting treasurer of the said county of Morgan; that the plaintiff, as such treasurer, collected delinquent taxes from the tax duplicate of the year 1873, and prior to the 1st day of May, 1874, to the amount of $3,916.88, and reported the-amount thus collected to the defendants, in his May settlement of 1874; that the plaintiff, as such treasurer, collected-delinquent taxes from the tax duplicate of the year 1874, and prior to the 1st day of May, 1875, to the amount of $5,828.78, and also reported the amount thus collected to-the defendants, in his May settlement for the year 1875 ;• that all of said delinquent taxes were collected by the plaintiff, as such treasurer, without levy or sale; that the plaintiff has received for collecting such delinquent taxes one per cent, thereon, and that the defendants have refused to allow him any more or greater compensation for his services in collecting such taxes ; that the additional compensation of four per cent., claimed by the plaintiff, would make the sum of $389.82 ; that all of said collections were upon the current duplicates as carried forward from the delinquent registers, and not upon the regular delinquent lists.

From these facts the court came to the conclusion, that the plaintiff was allowed to charge a commission of five per cent, for collecting delinquent taxes for the years 1873 and 1874, and that he was consequently entitled to recover the-additional four per cent, so claimed by him, that is to say,, the said sum of $389.82.

The defendants excepted to the conclusions of law thus-drawn by the court, but the court, notwithstanding, rendered judgment against them for said sum of $389.82. Error is assigned upon the conclusions of law as above stated.

The principal question involved in this case was settled in-favor of the appellee by the case of Foresman v. Johnson, 65 Ind. 132. In that case it was held, and we think held correctly, that, under section 155 of the act of December 21st, 1872, for the assessment and collection of taxes, 1 R. S. 1876, p. 111, a comity treasurer has at all times power to levy and collect delinquent, or other than a current year’s, taxes, and is required to levy and collect such delinquent taxes, whether charged upon the current year’s duplicate, or otherwise, as well before as after his return and settlement for the current year’s taxes. It was further held in that case, that, under that section and section 14 of the act of March 12th, 1875, 1 R. S. 1876, p. 471, concerning the fees •and salaries of certain officers, a county treasurer is entitled to charge a commission of five per centum upon all delinquent taxes collected during the year, when paid voluntarily, without reference to the period of the year in which such delinquent taxes may have been collected.

Section 5 of the áct of March 8th, 1878, regulating the fees and salaries of certain officers, Acts 1873, p. 124, which continued in force until superseded by the act of March 12th, 1875, provided that a county treasurer should receive five per centum on all delinquent taxes collected, when paid voluntarily and without levy.

This latter section, when taken in connection with section 155 of the act of December 21st, 1872, supra, must also be ■construed to have applied to all delinquent taxes collected ■during the current year, when paid voluntarily and without levy, and without reference to the particular time of the year at which such delinquent taxes may have been collected.

The conclusion is inevitable that the appellee was entitled to charge and to receive a commission of five per centum on •■all delinquent taxes collected by him from the duplicates of the years 1873 and 1874, and that the judgment below ought to be affirmed.

The judgment is affirmed, with costs.  