Opinion
August Term, 1849.
Where a statute requires a bond from an officer for the faithful discharge of his duty, and a new duty is attached to the office by statute, such bond, given subsequently to the latter statute, embraces a new duty, and is a security for its performance, unless where, when the new duty is attached, a bond is required to be given specifically for its performance.
APPEAL from the Superior Court of Law of ROWAN, at Fall Term, 1848, Moore, J., presiding.
This is an action of debt on a general bond, given by (230) the sheriff of Rowan, in the sum of $10,000, for the discharge of the duties of his office for the year 1847, of which the condition is in the form prescribed by the statute. Rev. St., ch. 109, sec. 13. The breaches assigned are that the sheriff failed to collect the town taxes of Salisbury for the year 1847, and, secondly, that he collected the taxes and failed to pay them to the relator, the treasurer of the town. After oyer of the bond and condition, the defendants pleaded conditions performed and no breach, etc.
A verdict was found for the plaintiff, subject to the opinion of the court whether the sureties were liable on the bond for this demand, upon the following statement: By a private statute, passed in the year 1794, to amend the laws regulating the town of Salisbury, it was enacted that the commissioners of the town should annually appoint a person to collect the taxes assessed for the town, and that such person should enter into bond with sufficient sureties in a sum not less than $100, to the commissioners, for the faithful discharge of his duty; and it makes it the duty of the persons so appointed to give such bond and to collect the taxes, and pay the same to the treasurer of the town on or before the first Monday in August in each year. By another private act, passed in the year 1825, it was enacted that the first five working days in March, in every year, shall be the time in which the tax list for the town shall be given in; and that, on 20 March, the commissioners shall appoint three assessors to value and assess the real estate in the town for taxes, who shall, within three days, file their assessment with the commissioners, who shall thereupon proceed to lay the taxes, and that, within ten days after the commissioners shall have laid the taxes, the clerk of the board of commissioners shall deliver to the town constable, or to the person whom they may appoint to collect the said taxes, an accurate copy of the return, etc., and annex the valuation of each person's property, (231) as made by the assessors, together with the amount of taxes due thereon; and that the town constable, or person appointed to collect the taxes, shall, within three months after the list is placed in his hands, account for and pay over to the treasurer of the board of commissioners all such sums as he may be made liable and accountable for by virtue of his appointment; and that such constable or collector may, within one year afterwards, collect the same, notwithstanding he may have paid the same to the commissioners; and that the commissioners shall annually deliver to the constable, or other person appointed to collect the taxes a warrant under their hands authorizing the said person to demand and receive the taxes. By another act, passed in the year 1827, the Sheriff of Rowan County is authorized and required to collect, pay over and account for the taxes imposed by the commissioners of the town of Salisbury on the citizens and property therein, in like manner and under the same rules and regulations as were then prescribed for the government of the town constable or collector by the aforesaid act of 1825. Under that act of 1827 the sheriff received the list and collected the taxes of 1847, or became liable for the same.
Upon the point reserved the court was of opinion with the defendants, and set aside the verdict and entered a nonsuit, according to the agreement of the parties; and the relator appealed.
Clarke and Boyden for plaintiff.
Osborne and Craige for defendants.
The liability of the sheriff himself for the taxes, in a proper action, is not disputed; and the only point is whether he and his sureties are liable therefor upon his general official bond for 1847. We own that we see no reason why they should not be. The act of 1827 imposed the (232) duty on the sheriff of collecting the town taxes; and one part of the condition of the bond, after enumerating several particular duties of the sheriff, is that "he shall pay all money by him received by virtue of any process to the person or persons to whom the same shall be due, and in all other things well, truly and faithfully execute the said office of sheriff during his continuance therein." Those words are, therefore, broad enough to cover the present case; and the principle laid down in Cameron v. Campbell, 10 N.C. 285, and in other cases, is a sound one, that when a statute requires a bond from an officer for the faithful discharge of his duty, and a new duty is afterwards attached to the office by statute, such bond, given subsequently to the latter statute, embraces the new duty, and is a security for its performance. If it be not so, then with the creation of every additional duty of an officer there would be a necessity for requiring a separate special security — which has never been done or thought of. The contrary, however, is supposed to be established by the cases of Crumpler v. Governor, 12 N.C. 52, and Governor v. Barr, ib., 65, and Governor v. Matlock, ib., 213, in which it was held that the general words, in the conclusion of the general bond of the sheriff, did not extend to the public and county taxes. But those exceptions were expressly placed on the ground that the statutes which made it the duty of the sheriff to collect those taxes required separate bonds as securities for each species of tax. The construction was that those bonds were, upon the intention, not cumulative, but special securities for the revenue of each kind, inasmuch as, if it were not so, the interests of the public and private persons would often come in conflict, and, indeed, the penalty of the bond would often be exhausted by the public, leaving nothing or but little as a security for individuals. To use the expressive language of Judge Henderson in Matlock's case, the law (233) which requires a sheriff to give bond for the collection of the taxes "withdraws the obligations imposed by that law from the bond for the discharge of his ordinary official duties." But that is not the case here. There was an attempt to show that it is, by a reference to the provisions in the act of 1794, which authorized the commissioners to take a bond from a collector appointed by that board. But that is restricted to the officer who might be thus appointed, and cannot be extended either to the constable or the sheriff, who are required to collect the taxes by the subsequent acts; and the reason was, plainly, that those officers had already given bonds that were deemed sufficient. Such was the case with the town constable, under the statutes then in force, and to that the act of 1827 must have reference. To show that the power and duty of the sheriff to collect the taxes were not to depend on the sheriff's first giving a bond therefor, we have only to advert to the supposition that he had refused to give such a bond, and consider the consequence. If the defendant's argument be right, it would put it in the power of the sheriff, at his own will, to evade a duty expressly imposed on him by the statute, or he would have been liable to the town for the damages sustained by his not giving the bond and thereby qualifying himself to collect the taxes — which would have been a breach of duty within the words of the official bond, for which he would have been liable for precisely the damages demanded in this suit, namely, the taxes which he ought to have collected. A construction leading to such an absurdity cannot be the true one. The words in the act of 1827, that the sheriff is to collect and account for the taxes "in like manner and under the same rules and regulations as were prescribed for the constable and collector under the act of 1825," refer only to the periods for the assessment of the taxes, making out and delivering the list and warrants, and of the collection and payment of the money; and (234) they cannot be connected with the act of 1794, requiring a special bond for that purpose. None was deemed necessary when the duty was imposed on the sheriff, and one was not required.
The judgment must therefore be reversed, and judgment be entered for the plaintiff upon the verdict.
PER CURIAM. Judgment reversed, and judgment for the plaintiff.
Cited: Lindsey v. Dozier, 44 N.C. 277; Prince v. McNeill, 77 N.C. 400, 23; Wilmington v. Nutt, 80 N.C. 267, 9; County Board v. Bateman, 102 N.C. 54; Daniel v. Grizzard, 117 N.C. 110.