92 S.E. 176 | N.C. | 1917
Lead Opinion
It has been the custom in this State for the retiring sheriff to collect the taxes due on tax lists already in his hands, and this custom has the sanction of numerous judicial decisions.
In Fitts v. Hawkins, 9 N. C., 396, Talor, C. J., says: “A sheriff who is elected for the first time has nothing to do with the list of the preceding year before he was in office. The clerk has delivered them to his predecessor, who alone has authority to collect under them; and the law makes no provision for setting them over to the new sheriff, as in case of prisoners and writs. If he receive the lists and collect the taxes, it must be in consequence of some private arrangement between the predecessor and himself, which cannot undoubtedly bind his sureties in this form of proceeding, for if it could they would be responsible for two years instead of one (at that time sheriff’s term was one year). If the
In Slade v. Governor, 14 N. C., 365, Daniel, J.: “In England the office of collector is distinct from that of sheriff, and filled by a different person. In this State the office of collector of taxes is thrown upon the person who shall be elected sheriff. . . . The office of collector of taxes does not expire when that of sheriff‘does; the last terminates at the end of twelve months from the time he qualified as sheriff, whereas the former does not begin (except when a person liable to pay a tax is about to move away) until the first day of April in the year after he has been appointed sheriff, and he is not compellable to collect the taxes even until after the office of sheriff expires. . . . He gave bond and surety to perform the duties of sheriff; he also gave another bond with surety to perform the duties of collector of public taxes.' His office of sheriff began immediately upon his qualification, and expired at the end of one year from; that time. Ilis office of collector of public taxes began immediately, so far as related to taxes that might be due and not listed, as, for instance, those imposed on peddlers, showmen, etc., but he had no right to enforce the payment of the dues on the list of taxes (except where a person was about to remove) beforei the first of April in the year after his appointment. . . . The sureties to his bond for the collection of taxes and settlement with the treasurer were bound until those duties were performed.”
In the same case, Ruffin, J., on p. 368: “The case of Fitts v. Hawkins (9 N. C., 394) seems to be an authority upon every point that can be made in this ease. . . . For the Chief Justice^ (Taylor) states that if the new sheriff receives the lists and collects the taxes it must be in consequence of a private arrangement between him and his predecessor, which would not bind his sureties and make them responsible for two years instead of one. The new sheriff has no authority to collect the taxes even if the lists be delivered to him. He is not the sheriff to whom they are directed, and it is the same as if he were to take them not being sheriff at all. This I have said merely establishes the power and duty of the former sheriff, for the law must intend that the tax shall be collected by somebody. But it is put beyond doubt by the provisions which authorize the sheriff to make these collections and distrain for them at any time within a year after he is accountable at the treasury. Thus, for this purpose his official term is extended beyond his first year, during which his ordinary official duties continue.”
In Perry v. Campbell, 63 N. C., 258, Dick, J.: “In this State the fiscal authority of a sheriff in collecting the public taxes is not a necessary incident of the office of sheriff, and does not always terminate with it. The authority and duty is regulated by the revenue laws of the State. By these laws it is made a duty on or before a certain day to receive the tax lists and proceed to collect and make due returns of the public taxes within a specified period. To enable him to perform this duty he is invested with ample and summary authority. When he receives the tax lists his responsibility begins, and neither his duty nor authority is dependent upon the continuance of the office of sheriff. He cannot free himself from such, responsibility except by collecting and paying over the taxes to the proper officers under the provisions of the revenue laws.”
In S. v. McNeill, 74 N. C., 537, Bynum, J.: “The question is simplified by considering that the sheriff was elected for the first time in August, 1874. He then had nothing to do with the tax lists of the preceding year, which ended on 1 April, 1874; and before his election, the clerk, as required by law, had delivered these lists to his predecessor, who alone had authority to collect the taxes. The law has made no provision for transferring the tax lists to the new sheriff, as is provided for delivering prisoners and certain writs. If the new sheriff receives the lists and collects the taxes, it must be by some private arrangement between his predecessor and himself, which, being unauthorized by law, cannot bind his sureties; for if it did bind them they would be bound for three years instead of two, the term of office. If the sheriff is reelected, as it happened in this case, he is then bound to collect the taxes of the preceding year; but this is by virtue of his former election and under the responsibility of his old bond. The duty of collecting taxes is not an incident to the office of sheriff, though ordinarily discharged by that officer. The duty, therefore, does not terminate with the office, but he is bound to go on and collect the taxes after his term of office as sheriff has expired, and the sureties upon his bond are liable for the money by him collected or that should have been collected after that time. Perry v. Campbell, 63 N. C., 257.”
In Dixon v. Comrs., 80 N. C., 119 : “It is true that the functions of the proper office of sheriff and tax collector, though united and imposed by law upon the same person, are in themselves essentially distinct, and may under some circumstances be disassociated. This, occurs
In McNeill v. Somers, 96 N. C., 472, Smith, C. J.: “Nor, in our opinion, does the prolonged authority, given by statute, to proceed in the collection of taxes for which he is accountable after the expiration of the term of office constitute ‘an office or place of trust or profit,’ according to the true meaning of those words. The office of sheriff was then filled, or about to be filled, by a newly elected successor, and the relator’s term had expired. He was no longer ‘in office.’ nor did he occupy ‘a place of trust or profit,’ but was simply engaged in completing an unfinished duty which survived the termination of the office before held. The continued right to coerce payment of unpaid taxes after, as before, the determination of the office may be, and indeed is, the correlative of the obligation to account for what is on the tax list, that is, of an official duty, but it remains detached from the office to which it was incident, a separated function, but it is not itself an office of trust or profit. There can be put one incumbent of a single office, and the one team being ended, the other is filled by a successor. The distinction is between the office and the prolonging of the exercise of one of its functions after its determination for all other purposes.”
It is established by these authorities that at the time the salary act for Orange County was adopted a sheriff elected for the first time had nothing to do with the tax lists of the preceding year; that the new sheriff had no authority to collect the taxes of the current year; that the sheriff going out of office did have authority to collect these taxes after his term of office expired; that this authority was not an office or place of trust, and in exercising it he was simply engaged in completing an unfinished duty which survived the termination of the office before held.
It is also true that the taxes of 1916 were due, under the provisions of the Machinery Act 'then in force, 1 October, 1916, and when the tax lists of that year were delivered to the defendant, which was before the plaintiff Eosemond was inducted into office, the total amount of the taxes was charged against the defendant and the sureties on his bond.
These were the existing conditions at the time of the enactment of the salary act of 1915, and the General Assembly is presumed to have had knowledge of them.
It is also a presumption, adopted in the construction of statutes, “that it was the intention of the Legislature to enact a valid, sensible, and just
If, therefore, it was the purpose of the General Assembly to deprive the defendant of the right to collect the taxes of 1916, we would expect to find in the statute a direction to turn over the tax lists to his successor; but there is no such provision, and the construction of the statute contended for by the plaintiffs would work a serious injustice, as it would take from the defendant, who was elected and inducted into office prior to the enactment, nearly the whole of the emoluments of his office for one year without substituting any compensation therefor.
The act manifests a clear intention to the contrary, by the provision: “That this act shall be in full force and effect from and after the first Monday in December, 1916, as to all officers except clerk, and as to him on first Monday'in December, 1918.”
The officers affected by the act had already been elected and were in office when it was enacted, and the operation of the act was postponed for the purpose of giving to the incumbents the salaries and fees belonging to the officers for the terms they were then filling.
If this is not so, the act discriminates against the sheriff, by giving the register of deeds and treasurer all the fees for two years and to the clerk for four years, while it deprives the sheriff of his commissions for collecting the taxes for 1916, which is, as said in plaintiff’s brief, “practically the only value the sheriff’s office has” in Orange, and the act shows on its face an intent to treat all alike.
The act, considered as a whole, shows that it was the purpose of the General Assembly to abolish the fee system in Orange County and to provide fixed salaries in lieu thereof; to treat all of the officers affected by the act alike and to do no injustice, and to this end the operation of the act was postponed so that the officers already elected might have all of the emoluments of their terms; to provide fixed salaries in substitution for fees and commissions to which the officer receiving the salary would have been entitled bp±. for the act, and not to give one a salary at the expense of another or in the place of fees to which another w.as entitled.
If we were to hold otherwise we would take from the sheriff his commissions for one year without compensation therefor and without express legislative declaration to that effect, and would require these commissions to be turned into the treasury of Orange to be used in the payment of the salaries of other men, thereby imposing upon the sheriff the burden of the payment of salaries for one year.
TJpon a careful consideration of tbe questions involved, we are of opinion there is no error.
Affirmed.
Dissenting Opinion
dissenting: Custom cannot avail against an act of tbe Legislature repealing it. Tbe arm of tbe lawmaking body of tbe State is not so shortened that it cannot repeal a custom as well as a former statute.
Section 3 provides that the jailer shall be paid a salary, to be fixed by the county commissioners. Section 4 provides that “Said sheriff shall receive a salary of $1,600 per annum in lieu of all other compensation whatever ” and provides, further, that his deputy for Hillsboro Township shall be paid $600 per annum and that the .county shall pay the premium on the sheriff’s bond. All the above to be paid by the county “out of the funds herein created.”
The statute then provides for the amount of the salary of the Superior Court clerk, the register of deeds, and treasurer; and section 9 provides, under a penalty, that all the officers “hereinbefore mentioned shall faithfully perform all the duties of their several offices imposed upon them by law, and shall receive no compensation nor allowance whatever for any extra or additional service rendered to the county or State or other Government agencies under existing law or laws hereafter enacted, except as hereinbefore provided.”
Section 10 provides: “The officers hereinbefore named are each required to keep a fee book upon which shall be entered, immediately upon their receipt, all fees or commissions, and are required to turn over to the treasurer of Orange County all moneys coming into their hands from such source”; that the treasurer shall audit the books and shall post at the courthouse door an itemized statement of all the fees and commissions, and that the county commissioners shall supervise the whole matter. And section 11 provides that any officer failing to collect or turn over any fees and commissions shall be guilty of misdemeanor. This would apply to the defendant if he received any commissions after the date the act was to be “in full force and effect.”
This act was ratified 29 January, 1915, and was clearly expressed to put in force the will of the people of that county, doubtless made after full public discussion, and enacted by the Legislature at the instance of the Senator and Representative from that county, that on the first Monday in December, 1916, all fees and commissions to county officials theretofore authorized by any law or custom whatsoever should be paid in to the county fund and from that day said officials should receive in lieu thereof the salaries authorized in the act as their sole compensation for any and all services, whether ordinary or extra services, and whether under existing laws or laws thereafter to be enacted. The only exceptions made are that the deputy sheriffs in the townships, other than Hillsboro, shall continue to receive fees for serving process and commissions on execution sales, and that the clerk of the court should continue to receive fees up to the first Monday in December, 1918. With this exception the act was to be in full force and effect on the first Monday in December, 1916. The reason for the exemption of the clerk till December, 1918, was because his term of office, unlike that of the other officers, did not expire in December, 1916.
Under the Constitution the term -of the defendant as sheriff expired on the first Monday in December, 1916. He was notified by this statute, ratified 29 January, 1915, that on said first Monday in December, 1916, all perquisites and fees of every kind allowed to the sheriff of Orange by virtue of his office or any statute or custom to the contrary should be paid into the county treasury. It was within the power of the Legislature to have made this change take effect on the ratification of the act. But with great liberality the General Assembly made the act to take effect as to all the officers, except the clerk, on the first Monday in December, 1916, and, as to the clerk, two years later. The defendant, therefore had nearly two years notice that all fees and commissions pertaining to his office should be turned into the county treasury after the first Monday in December, 1916.
The object of this legislation was for the relief of the people from what they deemed excessive compensation, and should not be construed as putting upon them additional and unnecessary expenses. It is no aid in construing the language, and the evident intent of this statute, to quote decisions made prior to its enactment under which the sheriff after the expiration of his term received compensation for collecting the tax list, for, as already stated, the sole purpose of the statute was to change the old system and to substitute a new system by the payment of salaries.
The Legislature had full power to make the act apply to one or to all officers, -or to some and to exempt others. It exempted the clerk in this case till December, 1918, because the term of the clerk, unlike that of the sheriff and other county officers, did not expire in December, 1916.
The power of the Legislature to change the compensation of all county officers has been settled beyond question since the decision in Mial v. Ellington, 134 N. C., 131, which overruled the doctrine which had been laid down in Hoke v. Henderson, 15 N. C., 1, that “office is property,” and that the . public had no control over such matters after an officer had got an office in his hands. The power of the Legislature as to this very matter of changing compensation by fees into compensation by salary is fully recognized in Mills v. Deaton, 170 N. C., 388. The language of the present statute expresses its intention as clearly as the power is unquestioned.
In Mills v. Deaton, 170 N. C., 386, Brown, J., said (p. 388) : “The explicit language leaves no room for construction. When the sheriff received the tax list, 1 October, 1914, he was required by law to collect them upon a commission basis, and when that was changed to a salary, the sheriff was likewise compelled to collect the taxes for the salary fixed. It does not matter that the present sheriff was elected, or whether some one else was elected in his place, the office of sheriff is one andf indivisible, and the salary fixed for it under this statute is intended to cover all the duties
It appears on the argument here that prior to the enactment of this statute the emoluments of the sheriff’s office in Orange County aggregated about $4,000 annually. This chapter 46, Public-Local Laws 1915, substituted for all the fees and commissions formerly allowed the sheriff (amounting annually to $4,000) a salary of $1,600, with other allowances for deputies (as above stated) and premium on his bond, making an aggregate cost of that office to the county treasury of about $2,400.
The defendant in this case had already served two terms as sheriff of Orange and was entering upon the third term .at the time this act was ratified, in January, 1915. It gave him nearly two years notice that' at the expiration of his term in December, 1916, all officials would be paid by salaries and that after that date all fees and all commissions theretofore allowed must be paid into the public treasury.
Under the defendant’s claim, if allowed, the county, instead of making an economy of $1,600 per annum in the sheriff’s office beginning on the first Monday in December, 1916, will have to pay more than double: that is, the sheriff whose term had expired will be paid at the rate of at least $4,000 (and, indeed, more, for it is claimed by him that the greater part of his fees were in the collection, of the tax list) until all the taxes of 1916 are collected, while at the same time the new sheriff will be receiving the full salary and expenses of $2,400 per annum out of the treasury, thus costing the county at the- rate of at least $6,400 per annum. It is hardly conceivable that so intelligent a population as that of the county of Orange would have asked the Legislature to continue the emoluments of the sheriff, whose term has expired, at the rate of at least $4,000 a year and at the same time tax the public at the rate of $2,400 per annum for the sheriff who is in office. It is not reasonable to suppose that the Senator and the Member from Orange advocated a statute leading to any such result, or that the Legislature could have so understood in enacting this statute, whose object was to relieve the taxpayers of the county, and not to increase their burdens.
On the first Monday in December, 1916, by virtue of the statute, the salary of $1,600 to the sheriff, and incidentals of $800 other allowances,
The county of Orange and its taxpayers, by the construction the defendant asks, are penalized heavily for wishing to make the change which so many other counties have had adopted to their satisfaction and to economy in the public expenditure. In Orange the same statute is made a heavy loss to the public instead of an economy.
The Public-Local Laws of 1911, 1913, 1915 show that there were 48 acts putting county officers on salary (and there have been others since), only 9 of which have any express provision requiring officers to turn over their books and papers at the end of the term. The other 37 rely upon the common-law rule which treats that as a necessary incident of leaving any office. Only two of these 48 statutes permit the outgoing sheriff to retain the tax list of the preceding year. Such enactment is not in this statute, and its absence leaves no ground for the defendant’s contention that he is entitled to do so notwithstanding the clear-cut, incisive substitution, at the date fixed, of the new system of salaries for the former custom.
The collection of taxes is not an inherent part of the duties of sheriff. 37 Cyc., 1192. It was not so in England, from which we derived our system of laws, nor is it so in many of the States of this Union. 35 Gyc., 1489. ■ But if it were, it was competent for the Legislature to change the method of compensation. The people of Orange had the right to ask for such change and the Legislature had the power to order it. In doing so they prescribed the date when the change should take place and that after that time the sheriff should receive no fees whatever for the collection of taxes, but allowed him, instead, a salary which began at that date for all the sheriff’s duties of every kind. The
After the first Monday in December, 1916, the act permits no commissions to any one for collecting taxes, and the sheriff whose term has expired cannot claim them, any more than the new sheriff can claim them after his term shall expire in December, 1918.
The plaintiffs are the commissioners of Orange, and their attorney in this case was the Senator from Orange in 1915 (Mr. Nash), who, expressing the will of the people of that county, drafted and procured the passage of this act, whose intent, very clearly expressed, provides that after the first Monday in December, 1916, all fees, and commissions theretofore paid to county officers should be paid into the county treasury (section 12), out of which fund the salaries provided in the act shall be paid to the officers, and (section 9) that the officers shall receive after that date “no compensation or allowance whatsoever” except as otherwise provided in the act, which exception specifies that the clerk shall continue to receive fees for two years thereafter, and that the deputy sheriff shall receive process and commissions on executions in certain townships. Neither the former sheriff nor any other officer or any other fees or commissions are excepted. The object of this action is to enforce the provisions of this statute enacted after full discussion at the instance of the people of Orange County in a matter concerning their own county and restricting their county expenses.
The cardinal idea, repeated again and again throughout the act and which runs through it as its warp and woof, is that on the date named '(nearly two years ahead) the system previously in force, by which county officials were compensated by fees and commissions, was absolutely and utterly changed, and fixed salaries substituted. The slight exception made in the act, of process fees to the deputy sheriff in some of the townships, emphasizes the statement in the act that “except as hereinbefore provided” the officers shall thereafter receive no compensation or allowance whatsoever, under existing laws or laws hereinafter enacted, except the salaries named in the act.
The act places all the duties of the office on the new sheriff, and all the compensation is his, after the date specified. If the old sheriff insists on collecting the taxes, the commissions, nevertheless, must be paid into the county treasury, for the act provides that fees and commissions are all to be paid into the treasury and out of them the salaries, to a small amount, are to be paid. Least of all is there any indication that the former sheriff, whose term has expired, shall nevertheless be allowed
Lead Opinion
BROWN, J., concurring; CLARK, C. J., dissenting. This is an action to compel the defendant, former sheriff of Orange County, to turn over the tax lists of 1916 to Charles G. Rosemond, who was elected sheriff of said county in November, 1916.
The defendant R. D. Bain had served two terms as sheriff of Orange County, and was entering upon his third term when the General Assembly, on 29 January, 1915, enacted a law entitled "An act to fix salaries for public officers in Orange County," but the operation of the act was postponed to the end of the terms of the then county officers. At the end of his term, on the qualification of his successor, the plaintiff Charles G. Rosemond, on 9 December, 1916, the plaintiff commissioners made demand upon the defendant R. D. Bain for the tax list of 1916 and other books and papers of his office; but the defendant claimed that notwithstanding chapter 46 of Public Laws, 1915, he was entitled to collect the taxes for 1916. Proceedings for a temporary injunction and mandamus were brought by plaintiffs against the defendant, and being heard before F. A. Daniels, judge presiding, at chambers in Durham on 16 December, 1916, the temporary restraining order was dissolved and mandamus refused, the court below holding that it was not the intention of the act of 1915 to take from the outgoing sheriff the tax list of 1916.
The plaintiffs excepted and appealed. It has been the custom in this State for the retiring sheriff to collect the taxes due on tax lists already in his hands, and this custom has the sanction of numerous judicial decisions. *428
In Fitts v. Hawkins,
In Slade v. Governor,
In the same case, Ruffin, J., on p. 368: "The case of Fitts v. Hawkins
(
In S. v. Long,
In Perry v. Campbell,
In S. ex rel. Coffield v. McNeill,
In Dixon v. Comrs.,
In McNeill v. Somers,
It is established by these authorities that at the time the salary act for Orange County was adopted a sheriff elected for the first time had nothing to do with the tax lists of the preceding year; that the new sheriff had no authority to collect the taxes of the current year; that the sheriff going out of office did have authority to collect these taxes after his term of office expired; that this authority was not an office or place of trust, and in exercising it he was simply engaged in completing an unfinished duty which survived the termination of the office before held.
It is also true that the taxes of 1916 were due, under the provisions of the Machinery Act then in force, 1 October, 1916, and when the tax lists of that year were delivered to the defendant, which was before the plaintiff *431 Rosemond was inducted into office, the total amount of the taxes was charged against the defendant and the sureties on his bond.
These were the existing conditions at the time of the enactment of the salary act of 1915, and the General Assembly is presumed to have had knowledge of them.
It is also a presumption, adopted in the construction of statutes, "that it was the intention of the Legislature to enact a valid, sensible, and just law, and one which should change the prior law no (382) further than may be necessary to effectuate the specific purpose of the act in question" (Black's Interp. Stat., sec. 41), and "that the Legislature never intends to do an injustice." Black Interp. Statutes, sec. 46.
If, therefore, it was the purpose of the General Assembly to deprive the defendant of the right to collect the taxes of 1916, we would expect to find in the statute a direction to turn over the tax lists to his successor; but there is no such provision, and the construction of the statute contended for by the plaintiffs would work a serious injustice, as it would take from the defendant, who was elected and inducted into office prior to the enactment, nearly the whole of the emoluments of his office for one year without substituting any compensation therefor.
The act manifests a clear intention to the contrary, by the provision: "That this act shall be in full force and effect from and after the first Monday in December, 1916, as to all officers except clerk, and as to him on first Monday in December, 1918."
The officers affected by the act had already been elected and were in office when it was enacted, and the operation of the act was postponed for the purpose of giving to the incumbents the salaries and fees belonging to the officers for the terms they were then filling.
If this is not so, the act discriminates against the sheriff, by giving the register of deeds and treasurer all the fees for two years and to the clerk for four years, while it deprives the sheriff of his commissions for collecting the taxes for 1916, which is, as said in plaintiff's brief, "practically the only value the sheriff's office has" in Orange, and the act shows on its face an intent to treat all alike.
The act, considered as a whole, shows that it was the purpose of the General Assembly to abolish the fee system in Orange County and to provide fixed salaries in lieu thereof; to treat all of the officers affected by the act alike and to do no injustice, and to this end the operation of the act was postponed so that the officers already elected might have all of the emoluments of their terms; to provide fixed salaries in substitution for fees and commissions to which the officer receiving the salary would *432 have been entitled but for the act, and not to give one a salary at the expense of another or in the place of fees to which another was entitled.
If we were to hold otherwise we would take from the sheriff his commissions for one year without compensation therefor and without express legislative declaration to that effect, and would require these commissions to be turned into the treasury of Orange to be used in the payment of the salaries of other men, thereby imposing upon the sheriff the burden of the payment of salaries for one year.
(383) The case of Mills v. Deaton,
Upon a careful consideration of the questions involved, we are of opinion there is no error.
Affirmed.
Concurrence Opinion
concurring: In my opinion, there is a marked distinction between this ease and Mills v. Deaton, 170 N. C., 388. In that case Sheriff Deaton succeeded himself. When be qualified in December, 1914, for tbe second term tbe office of sheriff became a salaried office, which compensated tbe incumbent for all loss of fees. At that time Deaton bad tbe tax lists of 1913 in bis bands, which bad been given him 1 October, 1914. As be succeeded himself, we held that be could not receive tbe salary and tbe commissions both; and, further, tbe Iredell statute differs from tbe statute now under consideration in tbe material .particular pointed out in tbe opinion of tbe court.
In this case tbe sheriff did not succeed himself, and went out of office with a partially uncollected tax list in bis bands with which be bad been charged and for tbe collection of which be bad given bond. It was bis privilege and duty under tbe statute to finish tbe collection and to account for tbe taxes. His successor, Rosemond, bad no authority to collect these taxes. Only tbe defendant Bain was invested with that authority. Inasmuch as Bain only could finish tbe collection, be was entitled to deduct tbe commission for collecting in bis settlement. Tbe Legislature failed to invest tbe succeeding Sheriff with tbe power to collect tbe preceding year’s taxes. As that could be done only by Bain, and as be was still charged with their collection, it evidently was not tbe purpose of tbe Legislature to deprive him of his commissions.
A similar condition arises when a sheriff dies in office. His successor has no authority to collect tbe tax lists in tbe deceased sheriff’* bands for collection. Tbe law provides that tbe bondsmen shall appoint a tax collector, and be receives bis compensation in tbe commissions allowed by law for collecting.
