Cansler v. . Penland , 126 N.C. 793 ( 1900 )

Montgomery, J.

This case was first before the Court at. September Term, 1899, and the decision is reported in 125 N. C., 578. It was reheard upon petition of the plaintiff at this term. One reason assigned in the petition to rehear is that the decision was made to turn wholly upon the legality or illegality of the written contract between the plaintiff and defendant, which is set out in the answer of the defendant by way of counterclaim. The petitioner did not complain of that part of the decision, but on the other hand admitted that it was void under sec. 2084, of The Code. But it is further stated in the petition that the petitioner was advised that the Court did not consider the fact that the action was not brought by the plaintiff upon that contract. It may be true that the Court considered fully, in arriving at its decision, the illegal contract set up by the defendant in its answer as affecting the contract upon which the plaintiff brought his action; and we see no error in that manner of the treatment of the case.

If it should be conceded for the sake of the argument that the contract upon which he declared was a valid one, yet he, on the investigation before the referee as to the account between him and the defendant, himself introduced the contract which the defendant set up as a counterclaim, and insisted that the defendant owed him a balance under the provisions of that very contract. However, upon a careful reading of the decision in the reported case, it appears that the case was decided upon the contract upon' which the plaintiff brought his action. It showed that the plaintiff had been appointed tax collector for the county of Macon for the years 1891-’92, and that he placed in the defendant’s hands, not a part of the tax duplicates, but the entire list; and that he took a bond from the defendant with sureties in which it was recited that it was given to secure the collection of the taxes of Macon County — State, county, poor, school and special taxes. It is true the plaintiff called the defendant his- deputy, but there is nothing in the name in this case. As a fact, he turned over absolutely into the hands, of defendant the entire tax lists of the county, which had been: confided to him, specially to collect and to account for. He reserved no control of the tax lists. There could not be a clearer case of farming out a public office than the one before us. In this respect, the contract upon which the plaintiff sued was as clearly tainted with illegality as the one which the defendant set up in his answer.

The plaintiff’s bond as tax collector was a security to the county for the collection and payment by the plaintiff of the taxes. The Commissioners of the county were, and are t&-quired to keep these bonds in a safe and solvent condition, and renewed at stated times. And so far as we see from the record the county is not interested in this action.

Petition dismissed.