Somers v. Board of Commissioners ( 1898 )

Upon the insanity of the sheriff his right to exercise the office ceased, and his committal to the asylum for the insane and the appointment of a guardian for him, upon the certificate of the superintendent of the asylum, as provided by The Code, sec. 1673, was certainly at least primafacie evidence of such insanity. There was no evidence offered to contradict such insanity. Upon the declaration of insanity the sureties of the sheriff had no more rights than would have gone to them upon his death,i. e., to collect the tax list then in his hands. Code, sec. 3687; Laws 1897, ch. 169, sec. 117; Perry v. Campbell, 63 N.C. 257; McNeill v.Somers, 96 N.C. 467. The commissioners on the first Monday in September were vested with the power of electing a tax collector for the ensuing year, unless and until the sheriff should be restored to reason. The failure to exhibit the tax receipts on said first Monday in September would have been an additional ground justifying the county commissioners in refusing to give him the new tax books, even if he had been sane, and the sureties would have no right to collect taxes on such new list after his failure to renew his bond, whether such failure was caused by failure to exhibit the required receipts or by his insanity. Colvord v. Comrs.,95 N.C. 515; Code, sec. 2070. The time (December) being changed to September, Laws 1897, ch. 169, sec. 35.

In North Carolina a sheriff's deputy is merely his agent (R. R. v. Fisher, 109 N.C. 1), and such agency terminated upon the official ascertainment of the insanity. Neither Somers, therefore, nor the sureties on the sheriff's bond have a right of action to compel the commissioners to give them the tax list. The agency could not have (585) been one coupled with an interest, as that is prohibited. Code, sec. 2084; Basket v. Morse, 115 N.C. 448. Upon the prima facie ascertainment of the insanity of the sheriff under section 1673 or by inquisition of lunacy, the commissioners might have declared the office vacant under section 2071 of The Code, but their failure to do so merely authorized the coroner to perform the duties of sheriff proper, till such declaration (Greer v. Asheville, 114 N.C. 678) and did not cast upon him the right to collect the taxes, which went to the sheriff's bondsmen for the current list and after that the duty devolved upon a tax collector chosen by the county commissioners. Indeed, the election of a tax collector at the meeting of the county commissioners, supervening upon the appointment of a guardian for the sheriff, under section 1673 of The Code, was pro tanto a declaration of a vacancy in the sheriff's office under section 2071 to the extent of his duties as tax collector, and their failure to elect a sheriff to serve process merely left that matter open for future action. Greer v. Asheville, supra.

No error.

(586)