1. The county is liable to make restitution to the collector of revenue for personal funds of the collector used to pay the county's obligation under the Social Security Law. 2. An action to recover money paid by collector of revenue for the county in connection with employers' contributions under the Social Security Act must be maintained within five years.

SOCIAL SECURITY: COUNTY COLLECTOR: 1. The county is liable to make res- titution to the collector of revenue for personal funds of the collector used to pay the county' s obligation under the Social Security Law. 2 . An action to recover money paid by collector or revenue for the county in connection with emnlovers' contributions under the Social Security Act must be maintained within five years. Honorable John R. Sims Prosecuting Attorney Newton County 2nd Floor Courthouse Neosho, Missouri 64850 Dear Mr. Sims: October 19, 1971 OPINTON NO. 35 F'l LED ~ I This official opinion is rendered pursuant to the request con- tained in your letter concernin~ reimbursement of the cnllector of revenue of Newton County for social security taxes paid with per- sonal funds. More specifically, the questions raised are as follows: l. "Is the County liable to the Collector of Revenue for the payments he has made from his personal funds for social security and which should have been paid bv the County, and should the County reimburse him for the amounts he has paid? 2. "Also, what is the limttation on any action he would have if the County is liable to reimburse him?" The facts are that Newton County, as a political subdivision, entered into an agreement with the State of Missouri July 18, 19 ~ 1, as authorized by law, whereby the benefits of the system of Federal Old - A~e and Survivors Insurance were extended to all its eligible employees and officials and undertook thereby to ~ay into the Con- tributions Fund , created by the Social Security Law, contributions with respect to wages paid to such employees and officials . Pursuant to this agreement, the said county has been makin~ payments to the appropriate state agency for the Contributions Fund. In the case of the county collector of revenue and eligible employees of his office, the collector has followed the practice Honorable John R. Sims of drawing checks on his personal bank account in amounts sufficient to cover the required contributions, which checks are delivered to the county clerk who transmits them to the state apency alonp with county funds bein~ used to pay contributions with resnect to wages paid other county employees and officials. The county' s employer identification number was used in transmittin~ these funds. As indicated in your letter, this office on April 29, 1970, is- sued Opinion No. 288 wherein it was concluded as follows: "The county is liable for payment of the tax on wa~es paid by the county to its Collector, his deputy and clerical emnloyees , without limitation except as contained in the Social Security Act. Payment by the Collector of wages to deputy and clerical personnel from the amount the Collector is authorized to re- tain for deputy and clerical hire under Sec- tion 52.280 , House Bill No. 399, 75th General Assembly, is payment by the county insofar as social security is concerned." We believe the views expressed in Opinion No. 288 are anplic- able to the present matter in concludin~ that Newton County, rather than the collector of Newton County in his individual canacity, should have paid contributions on wa~es of the collector and em- ployees of his office. Although there is no statute which expressly authorizes the restitution of this money, it is our view that the doctrine announced by the Supreme Court of Missouri in Ewin~ v. Vernon County , 216 Mo . 681 (1909) and followed thereafter, is applicable to this case . The doctrine is , that where a public official in performing a duty en- joined on him by statute, necessarily expends his own funds , there being no statutory provision for meetin~ these expenses out of the public treasury, he may be reimbursed for such expenses. See Miller v. Webster County, 228 S.W.2d 706 (Mo. 1950); Maxwell v. Andrew County , 146 S.W . 2d 621 (Mo . 1940) ; Motley v. Pike Countv , 135 S.W . 40 (Mo. 1911), and cases cited therein. Whether these decisions were based on construction of the parti- cular statutes involved or a quasi-contractural ri~ht not based upon statute is not of imnortance in the present matter considerin~ the statutory authority for counties to enter into agreements for pay- ment of contributions under the Federal Old- Age and Survivors In- surance System (Section 105.350, RSMo 1969) and considering further the fact that Newton County is party to such an apreement. The ob- ligation to pay the employers ' share of the Social Security taxes is - 2- Honorable John R. Sims clearly that of the county, and the expense is one necessarily in- curred in operation of the collector's office. If t he collector, in default of the county, pays this exnense , he is entitled to re- imbursement. With reference to the second question presented by your re- quest, it is our opinion that Section 516 .120, RSMo 196Q , re lat i n~ to the five year statute of limitations would anplv i n~ smuch as the action would be upon an implied obli~ati on or liability of the county to reimburse the collector of r e venue. CONCLUSION It is, therefore, the opinion of this office that : 1 . The county is liable to make restitution to the collector of revenue for personal funds of the collector used to pay the county's obligation under the Social Security Law. 2. An action to recover money paid by collector of revenue for the county in connection with emnloyers' contributions under the Social Security Act must be maintained within f1ve years . The fore~oing opinion, which I hereby anprove, wa s prepared by my Assistant, John E. Park. Yours very t ruly, ~.~_, J~_g JOHN C. DANFORTH Attorney General - 3-