Commissioners of Orange County v. Bain ( 1917 )

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.

In Fitts v. Hawkins, 9 N.C. 396, Taylor, 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). (379) If the sheriff is reelected 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."

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. His 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) before 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 case. . . . 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 from 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 S. v. Long, 30 N.C. 419, Ruffin, C. J.: "So if a sheriff (380) collect taxes not duly laid, or for a year when the duty of collection belonged to another person as former sheriff, the sureties cannot be made responsible."

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 dependents 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. ex rel. Coffield 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 (381) when a sheriff goes out of office at the expiration of his term with an uncollected tax list in his hands, or which ought to have been in his hands, though it may have been delivered afterwards. Slade v.Governor, 14 N.C. 365."

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 but one incumbent of a single office, and the one term 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 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 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, 170 N.C. 388, is radically different from the one before us. In the first place, the statute then under consideration, relating to the salaries of officers in Iredell County, provided that all uncollected tax levies should be turned over to the county commissioners on the first Monday of December of each year; and there is no such provision in this statute. Again, the defendant Deaton was reelected, and he accepted the office under the act fixing his salary.

Upon a careful consideration of the questions involved, we are of opinion there is no error.

Affirmed.