95 P. 819 | Or. | 1908
delivered the opinion of the court.
The question to be considered is whether or not an action can be maintained against the sureties on a sheriff’s official undertaking, to recover moneys received by that officer as taxes, and for which he failed to account, when no bond was required of or given by him as tax collector. As the inquiry involves the construction of a statute, it is thought proper to call attention to the law applicable in this state to the election and qualification of a sheriff and his duties as tax collector.
General elections are held on the first Monday in June biennially (Const. Or. Art. II. § 14). The qualified voters of each county are authorized to elect, at the time thus designated, a sheriff, who shall hold his office for the
In Columbia County v. Massie, 31 Or. 292 (48 Pac. 694), in construing a statute then in force, containing the following clause: “Provided, the sheriff, before entering on the duties of collection of taxes, shall execute an additional bond in such sum as the county court of the county may direct” (Hill’s Ann. Laws, §2794)—it was held that the special bond thus required was not cumulative to the sheriff’s official undertaking, and that the sureties on the latter obligation were not liable for a failure of that officer to pay over to the county money which he had collected as taxes. After that decision was rendered the clause of the statute last mentioned was amended so as to read as hereinbefore quoted: B. & C. Comp. § 3094.
It is argued by plaintiff’s counsel that the legislative assembly, governed by the decision adverted to, amended the statute in the particulars specified, the effect of which changed the form of the sheriff’s official under
It will be remembered that the amended statute under consideration, in referring to the undertaking given to
“Such bond shall be additional and cumulative to the general bond given by the sheriff, to which resort may be had in case of failure or default of his duties as tax collector, if the bond described in this section be unenforceable or insufficient.”
By eliminating from the part of the statute thus quoted the clause, “if the bond described in this section be unenforceable or insufficient” the remainder of the language would seem necessarily to induce the determination, that resort might immediately be had to the official bond given by the sheriff in case of failure or default of his duties as tax collector. The retention of such clause, however, makes it quite evident, we think, from an inspection of the entire utterance, that recourse cannot be had to the sureties on the sheriff’s official undertaking, for any default of that officer properly to account for and pay over all moneys received by him as taxes, unless, as tax collector, he executes a bond which for any reason may be determined to be unenforceable, or prove to be insufficient. “The duties of a sheriff as such,” says Mr. Justice Bean, in Columbia County v. Massie, 31 Or. 292, 296 (48 Pac. 694, 695), “are more or less directly connected with the administration of justice, and have no relation whatever to the collection of the public revenues. They relate to the execution of the orders, judgments and processes of the courts, the arrest and detention of persons charged with crime, the preservation of the public peace, the service of papers, and the like.” It is the faithful performance of the duties thus enumerated, and the payment, according to law, of all moneys collected or received by the sheriff on account of judgments, decrees, orders, etc., that the sureties on his official undertaking guaranty. These sureties must be residents of the county .and have the qualifications of
Giving to that part of Section 3094, supra, hereinbebefore quoted, the interpretation indicated, we think the language used manifests a legislative intent to limit a recourse to the sureties on the sheriff’s general bond for any failure or default of his duties as tax collector to cases in which the bond given to guaranty the performance of such duties is unenforceable or insufficient, which necessarily implies that a bond for that purpose must have been given before it could be determined that the conditions of the undertaking were unenforceable, or ascertained that the sureties thereon were insufficient. The sheriff never having executed a bond as tax collector, the sureties on his official undertaking are not liable for any failure or default of their principal to account for and pay over money received by him as taxes.
No error having been committed in sustaining the demurrer, it follows that the judgment is affirmed.
Affirmed.