| N.C. | Jun 5, 1823
The county trustee of Warren, on 1 February, 1822, caused a notice to be delivered to the defendant Hawkins, who was then sheriff, and to the other defendants, his securities to a bond, given 28 May, 1821, conditioned for the faithful and proper collection and return of the county and poor taxes, and also of the public tax. The notice informed them that at the next court to be held for Warren, on the 4th Monday of February, 1822, a motion would be made for judgment against them, in the name of the chairman of the court, for the full amount of the county tax, due for 1820.
The county court rendered judgment against the defendants, and on the return of the writ of certiorari it was insisted by the securities to the bond of 1821 that they were not liable for the noncollection or nonpayment of the taxes of 1820.
Hawkins, the defendant, had been elected sheriff in May, 1820, and was reelected in May, 1821, and the securities to his bond for these two years were not the same.
The condition of the bond was as follows, viz.:
"The condition of the above obligation is such that, whereas the above bounden Joseph S. Hawkins is constituted and appointed sheriff of Warren County aforesaid, by the justices of said county, for one year from the date of these presents; now, therefore," etc.
(395) The judge below dismissed the writ of certiorari, and the defendants appealed. The question arising on this record is whether the securities to a sheriff's bond, executed in May, 1821, conditioned for the due collection and return of the county as well as the public tax, are liable for the taxes laid in the preceding year, viz., in 1820?
The sheriff, the principal in the bond in this case, was elected in May, 1821, and of course his term of service, according to law, would *221 expire in a year from that time, and his sureties can be made liable only for the taxes which the law imposed upon him the duty of collecting, or gave him a right to collect, within that period. The extent of this right and duty can only be ascertained by the collection and true construction of many acts of the Legislature, passed at different and distant periods.
The list of taxable property is to be taken within the last twenty working days in July by justices appointed by the county court which occurs after the first day of April. These lists are to be returned by the justices taking them to the court which happens after July, and are to be delivered to the sheriff within forty days after the return is so made; but he is not authorized to begin the collection until after the first day of April in the ensuing year, with the exception of the case where a person is about to remove to avoid the payment of taxes, from whom he may collect upon taking certain steps prescribed by law. These several provisions are abstracted and abridged from Laws 1801, ch. 570; 1814, ch. 872, and 1819, ch. 999, Rev. Code.
It is manifest, then, that the sheriff was authorized, by virtue of his appointment in 1821, to collect those taxes only with the lists of which he was furnished after July in that year; and that his right to collect such taxes, with the exception before stated, did (396) not begin until April, 1822.
A sheriff who is elected for the first time has nothing to do with the lists of the preceding year before he was in office; the clerk has delivered them to his predecessor, who alone has the authority to collect under them, and the law makes no provision for setting them over to the new sheriff, as in the case of prisoners and writs. If he receive the lists and collect the taxes, it must be in consequence of some private arrangement between his predecessor and himself, which undoubtedly cannot bind his sureties in this form of proceeding, for, if it could, they would then be responsible for two years instead of one.
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 appointment and under the responsibility of his old bond; he collects as sheriff of 1820, not of 1821. Can the accidental circumstance of his being reelected change the principle?
It is made the duty of the sheriff, immediately on receiving the lists of taxable property from the clerk, to set up at the courthouse an advertisement informing the inhabitants that he has received such lists and holds them ready for inspection, and requesting them to give him information of any lands, polls, or other taxable property not given *222 in, and if he receive information and neglect to account with the Comptroller agreeably to law, he is subject, besides a fine of a £ 100, to the penalty of £ 500; but this fine is not to be imposed when the sheriff shall account with the Treasurer within six months from the expiration of the time allowed by law for his settling with the Treasurer. 1796, ch. 449, sec. 4.
(397) The heavy penalty imposed by this law clearly implies that the sheriff is empowered and bound to perform the duties by which it may be avoided. He has six months from the time he ought to account to perform those duties and to be excused from the penalty. If, then, the plaintiff's argument is correct, and a sheriff elected in 1820 should not be reelected in 1821, it depends not upon himself to escape from the penalty, but upon the acts and good pleasure of his successor, who is liable to no penalty for the omission that took place in the former years. The law would not do such palpable injustice as to give a sheriff six months after he ought to account to avoid this penalty without intending at the same time that he should have power to collect the taxes, by which alone he is enabled to account.
The clerk of the county court is also directed to return the lists of taxables to the Comptroller in September, but it is perfectly clear that it cannot be for the purpose of charging the sheriff in the succeeding October, for he cannot begin the collection, under the exception before stated, until April in the succeeding year. Why, then, it is asked, should this return be made in September, unless for the purpose of enabling the Comptroller to settle with the sheriff in the next month, October, when the sheriff is bound by law to account?
To this several answers may be given. The lists returned by the clerk in 1820 to the Comptroller will operate as a check upon the sheriff when he settles his accounts in the October of the next year and serve as a guide to the Comptroller in adjusting the balance, since he will have something more authentic to rely upon than the returns of the sheriff with whom he is to settle.
It may be highly important to the public interest that the fiscal officers should be furnished with the amount of the taxes laid for the current year, to the end that by a comparison with the revenue of the preceding year they may ascertain its defalcation or increase, and thence cause the necessary communication to be made to the (398) Legislature.
But a decisive answer is that the time of the clerk's returning the lists to the Comptroller has been changed by the Legislature at different periods. By the act of 1787, ch. 269, the clerks were directed *223 to return the lists of taxables to the Comptroller on or before the first day of December in each year, though by the same act sheriffs are to settle with the Comptroller in the months of July, August, and September, and account with the Treasurer according to the Comptroller's report on or before the first of October. Therefore, the lists returned by the clerks to the Comptroller could not possibly be those by which the then sheriffs were to settle their accounts in that year.
In addition to the lists which the clerks are directed to furnish to the Comptroller, they must also return a certificate of the names of the sheriff and his securities, in order that the Treasurer may enter up judgment against them. Acts 1787, ch. 269, R. C. This regulation will bear no other construction than the name of the sheriff to whom lists were furnished, and against whom judgment cannot be entered up unless he fails to account for the taxes according to those lists. In other words, the sheriff is bound to account for the taxes in October, 1821, for which lists were returned to the county court by the justices appointed to take them — furnished to the sheriff by the clerk — and returned by the latter to the Comptroller in 1820.
The principal inconvenience adverted to as arising from this construction of the several acts on the subject is that, as the sheriff cannot begin the collection till April, there will not be time for him to collect the taxes while he remains in office, in the event of his not being reelected the following May.
But this inconvenience has been foreseen and provided for by the Legislature in the act of 1792, ch. 376, R. C., which gives the sheriff power to collect and distrain for the taxes, provided he does so within one year from the time he is accountable. Thus a sheriff elected in 1820, but not reelected in 1821, has until October, 1822, to collect and distrain for the taxes laid in the first mentioned (399) year.
This act was passed to remove doubt which existed relative to the power of the sheriff to distrain after the time for which he was appointed had expired, and amounts to a plain legislative declaration that the sheriff for the year when the lists are returned, and not his successor, is bound to collect the taxes, according to them. To what end should the sheriff be armed with this extraordinary power to fulfill duties which the law did not exact from him, but had thrown upon his successor? If the securities of the latter were understood to be responsible for the tax of the preceding year, it is incredible that a private man should be invested with the whole armor of the law for ends unconnected with the public interest. But construing the several laws *224 so as to fix the liability of the sheriff for the taxes of the year for which he was elected, all is consistent and intelligible. Other subsidiary lights might be thrown on the subject by the oath taken on settlement with the Comptroller, from the power of the securities after the sheriff's death, and from the duty of the clerk to return the sheriff's bond and name; but it is thought the case is already rendered too plain to require a multiplication of arguments. The conclusion is that the securities for the year 1821 are not liable for any taxes received by their principal under the lists furnished to him in 1820, but that the securities given in 1820 are liable, and consequently there must be a new trial.
The other judges concurred.
PER CURIAM. Reversed.
Cited: Dickey v. Alley,
(400)