State Ex Rel. Board of Commissioners v. Sutton

The Code, sec. 2073, prescribed that the sheriff shall execute three several bonds, payable to the State. (1) "One conditioned for the collection, payment and settlement of the county, poor, school and special taxes." (2) "For the collection, payment and settlement of the public taxes." (3) "For the due execution and return of (300) process, payment of fees and money collected and the faithful execution of his office as sheriff." This latter is commonly known as the "process" bond.

The first of the foregoing bonds covers the taxes levied for school purposes, whether school taxes are State or county taxes, and its conditions should have included the collection, payment and settlement of "county, poor, school, and special" taxes. The draftsman in drawing the "county" bond, instead of enumerating these four funds, which should be embraced in its conditions, inserted only this condition: "If the said James D. Sutton shall well and truly pay over to those entitled by law to receive the same the county taxes due to said county." Many losses having accrued to the public by inadvertence and omissions as to the conditions of such bonds, the Legislature of 1842 enacted the provision, which, with some amendment, is now embraced in The Code, sec. 1891, which provides that the bond, "notwithstanding any * * * variance in the penalty or condition of 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 the person injured * * * as if the penalty and condition of the instrument had conformed to the provisions of law." The defendants when they signed said "county" bond were fixed by law with notice that the statute required that bond to cover "county, school, poor, and special" taxes, and the omission of the words "school, poor, and special" did not contract or abridge their responsibility, which is the same as if those words had been properly inserted. There is no doubt which of the three bonds required of a sheriff the defendants signed. It was the bond for "county" taxes. It is also clear that such bond, if properly written, covered "school, poor, and special" taxes, and the statute supplies those words which were omitted from the condition in the bond. This (301) has been repeatedly decided. Kivett v. Young, 106 N.C. 567; Joyner v. Roberts, 112 N.C. 111; Daniel v. Grizzard,117 N.C. 105; Warren v. Boyd, at this term; Shuster v. Perkins, 46 N.C. 325. Possibly in taking the bond, only the word "county" was inserted, under an impression that, ex vi termini, that covered school taxes, as had been held under a former statute in Lindsay v. Dozier, 44 N.C. 275.

It is immaterial whether the school fund is, strictly speaking, State taxes or county taxes, or partly both. They are included in the "county" bond and the sheriff must account for them in settling his liability on that bond. Tillery v. Candler, 118 N.C. 888. The case of Governor v.Crumpler, 12 N.C. 63, relied on by defendants, simply holds that the sureties on the "process" bond are not liable for default as to county taxes, which is true now, as it was then. Eaton v. Kelly, 72 N.C. 110, and cases there cited, were before the act amending The Code, sec. 1883, and are not in point.

The Code, sec. 2563, made the County Commissioners the proper relators in an action on the sheriff's bond to compel a settlement of the school taxes. Laws 1889, chap. 199, substituted the County Board of Education as relators (Board of Education v. Wall, 117 N.C. 382), but Acts of 1895, chap. 439, abolished the County Board of Education and again made the County Commissioners the proper relators. Tillery v. Candler, 118 N.C. 888.

No error.

Cited: Comrs. v. Fry, 127 N.C. 262.

(302)