W. G. Payne, Appellant, vs. Washington County, Appellee, 25 Fla. 798

Maxwell, J.: During February of 1887, the Tax Co lector of Washington county procured publication of the delinquent list of tax-payers in a newspaper owned and published by appellant. The charge tor publication not having been paid, appellant sued the county to recover the-amount claimed thereon. The proceedings in the case resulted in a judgment for the defendant (appellee here), and in the appeal now before us.

Without reference to the manner in which the proceedings and the rulings of the court present the controversy between the parties, it is enough to say that the decisive question involved, as eliminated from the record and the assignment of errors, is, whether the county is liable for the expense of the publication ? Since the statute of 1881 (McClellan’s Dig., 319, sec. 21,) there has been no question as to the right of suit against a county by any one to whom it is legimately indebted.

But what constitutes legitimate indebtedness depends upon the power and authority given to counties by statute to make contracts and incur liabilities. A county cannot be burdened with expense or debt except so far as the power is given therefor, either expressly, or by clear implication from some other power expressly given. Being the creature of statute, the extent of its action towards incurring liability must be limited by statute. See County of Nassau vs. Downie, 16 Fla., 171; Note to Gilman vs. County of Contra Costa, 68 Am. Dec., 291; Claiborne County vs. Brooks, 111 U. S., 400; Askew vs.

Hale County, 54 Ala., 639; Simpson v. Lauderdale County, 56 Ala., 84; Moore vs. Commissioners of Howard County, 97 Ind., 176. With this law to guide us, where is to be found in the statutes of the State the authority in Washington county to make itself liable for the expense of publishing the delinquent tax list ? There is certainly no express power given to incur such a debt. But it is claimed to be an obligation of the county because the Tax Collector is a county officer, and is authorized bylaw to make such publication, and in doing this is the agent of the county.

As put by the counsel lor appellant, “ the statute authorizing the county through its agent, the Collector of Revenue, to make a contract for the performance of the services, necessarily implies authority to the county to pay for the same.” In connection with this it is said, “ there is no question that a county may become liable to action upon an implied contract, or upon a legal implication when properly made.” This last proposition is undoubtedly correct, but it still leaves open the question, whether the Tax Collector is such agent of the county as to bind it for the kind of publication in question.

We think not. The fact that he is a county officer, does not make him an agent of the county for such purpose. His business is to collect taxes for the State, as well as for the county, and in his official capacity he is acting as much for the one as for the other. In Philadelphia vs. Martin, 125 Penn.

St., 583, where the matter was one involving a similar question as to the character of the Revenue Collector, it was held that “ in acting for the commonwealth in the collection of its revenues and accounting for the same, (he) performs distinct and separate duties imposed upon him by law, and in such services he does not act in his capacity as a county officer, but as the officer, agent or employee of the commonwealth.” So it is here. But our statute gives the Collector no authority to bind either the county or the State, and there is no implication to be drawn from it that he can bind either.

On the contrary, it provides a mode of payment, which excludes all implication of liability in any other quarter. Here are the provisions in regard to publication under the act of 1883,. which wTas in force as applicable to the case at bar : “ If the taxes upon any real or personal estate shall not be paid on or before the first day of February of any year, and resort therefor is made upon real estate, the Collector shall advertise aud sell in the manner hereinafter provided.

He shall make out a statement of all such real estate, specifying the amount due on each parcel, and of all unpaid taxes of such party, together with the costs of advertising and expense of sale, and such advertisement shall be published,” &c. Laws of Florida, 1883, sec. 48, p. 33. In the same

section is prescribed the form of notice of sale, which is that “ the following described lands will be sold * * or so much thereof as will be necessary to pay the amounts due for taxes herein set opposite to the same, together with costs of sale and advertising.” And in another

section of the act (49) providing for the sale proceedings, it is directed that tüe sale shall continue from day to day until so much shall be sold “ as shall be sufficient to pay the taxes, costs and charges thereon ; and in case there are no bidders the whole tract shall be bid off by the Collector for the State.” So, it is apparent that the advertising and other costs and charges of sale were to be paid for out of the proceeds of sale; and apparent further, in the absence of other applicable statute, that neither by express provision, nor by any possible implication from express provision, can it be said that the Collector had authority, even admitting his agency for the county, to bind it for the charge sued on.

Nor, it may be well to say, can the State be bound in such case, unless it should become the purchaser at the sale. . It appears in the case that the publication of the delinquent list in controversy was made by mistake, in this, that the same lands had been assessed to other parties, and it was therefore a double assessment, aud that upon ascertainment of this the Collector did not sell the lands advertised.

The statute provides a mode for avoiding such a contingency as this, in the authority given to the officials of the county to correct such assessmentbut if the correction is not made that does not alter the question of liability for the advertisement, for if the county cannot be bound to pay for an advertisement properly made, most surely it cannot be bound to pay for one improperly made. The cases cited by counsel to show that a county is liable for advertisement of lands for taxes, are cases where the statute expressly made it liable.

Holding that W ashington county is not responsible for the expense of the advertisement sued on, the judgment of the Circuit Court is affirmed.