| N.C. | Sep 5, 1889
The action is prosecuted in the name of the State on relation of R. H. Speight, chairman of the board of commissioners charged with the construction and repairs of a fence erected in a portion of Edgecombe County, under chap. 367 of Laws 1883, to recover of the defendant Julia Staton, administratrix of John R. Staton, the deceased sheriff and tax collector, and the other, his sureties, the residue of the tax levied and collected under said act for the purpose aforesaid.
The official bond given by the intestate and the other defendants, the obligation undertaken, which it is sought to enforce, is, in words and figures, as follows:
"Know all men by these presents, that we, John R. Staton, (45) principal, and James Hodges, Battle Bryan, Erastus Cherry, Henry Winborne and Joshua Killebrew, sureties, are held and firmly bound unto the State of North Carolina in the sum of forty thousand dollars, the payment whereof to be well and truly made, we *65 bind ourselves jointly and severally, our heirs, executors and administrators, firmly by these presents. Signed and sealed this 30 November, 1883.
"The condition of the above obligation is such that, if the above bounden John R. Staton, sheriff of the county of Edgecombe, shall well and diligently collect the county, school, poor and special taxes during his continuance in office, and shall faithfully and honestly account for and pay over the same to the county treasurer, as required by law, then the above obligation to be void; otherwise to remain in full force and effect."
The defendant entered a demurrer to the complaint, assigning, among other grounds therefor, that "it does not appear that R. H. Speight, chairman as aforesaid, has a right to collect said money, if any should be due, from said administratrix, or said John R. Staton, or the sureties on his said bond."
Upon the hearing, the court sustained the demurrer and gave judgment against the relator for costs, at the same time giving him leave to amend his complaint, and the relator appealed. The act of 1881, circumscribing certain territory within the county of Pitt, and forbidding stock to go at large therein, directs the construction of a fence around the boundary, and an assessment of a tax upon the real estate therein to build (46) and keep it in repair. The amendment of 1883, which attaches an adjoining portion of the territory of Edgecombe, containing the same essential provisions, constitutes a board of fence commissioners and appoints the members, to the chairman of which the tax collector — in the present case the sheriff — "is to pay over the same (tax when collected) to the chairman of the fence commissioners." Act 1881, sec. 3; act 1883, sec. 6. A large portion of the tax levied for the purpose aforesaid, has been paid by the defendant's intestate to the relator, and the complaint, stating the facts, which must be accepted as true, is for the failure to pay over the residue of the sum aforesaid.
The official bond, in the very words of the statute that requires it, embraces and is intended to protect "the county school, poor and special taxes," and to "account for and pay over the same to the county treasurer, as required by law" (Code, sec. 2072); and he is the proper party to receive and sue for and recover all the enumerated county taxes, except thespecial tax levied under the enactment — one of the class *66 denominated "special," as distinguished from such as are usual and regular — the other special taxes levied upon property and persons in the entire county being, also, payable to the county treasurer. The condition of the bond is, therefore, in proper from to enforce the obligation to collect and pay over the taxes mentioned, except fence tax, and it omits to provide for the enforcement of the obligation to pay over them, as the statute commands, to the chairman of the fence commissioners. The special tax could not be recovered by the county treasurer, because he is not allowed to receive it; and if the present relator cannot. to whom the money alone is payable, it would seem that no one could, and, hence, there would be no security afforded by the bond (47) to assure fidelity in the discharge of the collector's official duty in reference to this fund.
Under such circumstances, we are not prepared to assent to the ruling below, that the relator, to whom alone this tax is to be paid under the law, cannot assert his claims thereto in the manner he is now doing. The fund is raised under a law which prescribes the person with whom the collector must account for what he collects, and the condition blending different special taxes under a single name fails to provide for the payment of those now under consideration to the legal and authorized public agent, and it may be questioned, whether the cannot maintain the action as relator and recover the money, which he alone has authority to receive.
To remedy mischiefs of the kind, was enacted the act of 26 January, 1843, which, with modifications adapting it to the new system, but not changing its substance, is brought forward in the Code, and forms sec. 1891. It declares that whenever any instrument shall be taken by, or received under, the sanction of the board of county commissioners, or by any person or persons acting under or in virtue of any public authority, purporting "to be a bond executed to the State for the performance of any duty belonging to any office or appointment, such instrument, notwithstanding any irregularity or invalidity in the conferring the office or in making the appointment, or any variance in the penalty or conditionof the instrument from the provisions prescribed by law, shall be valid,and may be put in suit, in the name of the State, for the benefit of theperson injured by a breach of the condition thereof, in the same manner as if the office had been duly conferred, or the appointment duly made, and as if the penalty and condition of the instrument had conformed to the provisions of law."
This statute seems to enable the relator, though not named in the condition, to prosecute the bond to recover the moneys by law directed *67 to be paid to him, and which the sheriff has collected under his (48) office and the bond undertakes to secure.
The references made in the argument for the appellee, in support of the ruling, are all to rulings which refuse to give operation to the bond outside of a fair and reasonable interpretation of its terms, and by construction, make it embrace duties and obligations not mentioned. They also show that general words used in a condition provided for a general discharge of official obligations, will be confined to such as come within the range of those specifically set out. Murf. On Bonds, secs. 717, 718 and 719; Eaton v. Kelly,
The subject matter is discussed, and the cases in our own reports, examined by Avery, J., in County Board v. Bateman,
Error.
Cited: Lacy v. Webb,