Thomason v. Board of Supervisors

delivered the opinion of the court.

We think the chancellor below erred in his construction of section 4442, Code of 1906, with reference to the work required of road hands and the commutation tax mentioned therein.

We interpret the section to mean that, where a contract is let for the working and keeping up of the public roads, the road hands, properly designated and assigned by the board of supervisors, shall work under the contractor or pay the commutation money to him the same as if he were the duly appointed overseer of the county; and when the board of supervisors lets the contract and designates' and assigns the road hands, as required by the section, and furnishes to the said contractor a correct and proper list of such road hands, which is accepted by the contractor, the work or the commutation tax due by such hands “shall be estimated as a part of the whole of the contractor’s remuneration according to the contract;” and the contractor is chargeable with the work or commutation tax due by each road hand on the list, provided the board of supervisors has not by its own acts or conduct prevented the contractor from obtaining the work or collecting the commutation tax due from the hands; and provided, further, that the con*300tractor could secure the work or collect the tax by reasonable effort and due diligence on his part under the' statute. But where the contractor has performed his duty diligently and in good faith in the collection of the road duty or commutation tax, and has failed to make all of the collections on the list, then. the contractor would be entitled to a credit for all of the work or cummutation • tax that he failed to collect for any cause over which he had no control. The fact that the contractor accepts the list of hands and undertakes to collect the tax according to the list does not bind the contractor for the full amount charged to him on the list, unless he collects the same, or unless it appear that his failure to do so was his own fault or negligence.

The decree of the lower court is reversed, and the cause remanded.

Reversed and remanded.