Opinion
(December Term, 1847.)
1. Under the Acts of Assembly, relating to the county of Brunswick, where a majority of the magistrates are required to do any act and they do not attend, those who are present may take the sheriff's bond and also lay taxes, and do all other things required by the general law to be done by a majority of the justices.
2. Where a court consists of more than two members, a majority is competent to do all the business which the court can do when all the members are present, unless the Legislature otherwise directs.
3. Although the clerk may not deliver to the sheriff an official copy of the list of taxables, yet if he proceeds, without such official list, to collect the taxes, he and his sureties on his bond are bound for the amount he may so collect, notwithstanding he could not have enforced the collection without such certificate from the clerk.
4. Under Laws 1844, ch. 43, sec. 1, any acknowledgement or admission of the sheriff or other officer, where admissible against him, is also admissible against his sureties in an action on their official bond.
APPEAL from the Superior Court of Law of NEW HANOVER, at Spring Term, 1847, Battle, J., presiding.
Iredell for plaintiff.
Strange for defendants.
(105) This was an action of debt upon the official bond of the defendant as sheriff of Brunswick.
The defendant Woodside was the sheriff of the county of Brunswick, whose duty it was to collect the county taxes for 1842. The action is brought on his official bond, against him and his sureties, the other defendants. Two breaches are assigned: one, for collecting and not paying over to the relator the county, poor and school taxes; secondly, for failing to collect and pay over. Upon the trial the relator, in order to show the assessment of taxes for 1842, produced the records of the March Term, 1842, of the County Court of Brunswick, from which it appeared that three magistrates only were on the bench when the taxes were laid for that year. To show that the defendant Woodside had duly received the list of taxable the relator proved that a copy of it had been handed to him from the clerk of the County Court, but that it was not signed or in any other way authenticated by him. This evidence being objected to, it was proved that the defendant Woodside had acknowledged that he had received the taxes for that year and had failed to pay them over. On the part of the defendants it was objected: first, that it required a majority of the magistrates of the county to lay the taxes, and, as only three were on the bench at the time the taxes were laid in 1842, the assessment was illegal, and, in fact, no taxes were assessed for that year; secondly, if the taxes were legally laid, the only warrant or authority which the sheriff could have to collect them was a copy from the list filed in the office of the County Court Clerk and properly authenticated by him, without which he could not collect; and thirdly, that his acknowledgement, as above stated, could not dispense with the copy of the tax list, nor was it any evidence against the sureties.
The court being of opinion with the defendants, the (106) plaintiff submitted to a judgment of nonsuit, and appealed to this Court.
We do not concur with his Honor in the view he took of this case. The first objection urged by the defendants was fully answered by the plaintiff. By Laws 1831, ch. 154, sec. 1, the Court of Pleas and Quarter Sessions of Brunswick County are required to arrange themselves in classes of five persons for the purpose of holding the terms of the said court. By section 3 it is enacted "that the justices appointed under this act to hold the said county courts shall be competent to do and perform any matter and exercise all the power and authority which, by the existing laws of this State, seven justices are authorized to do," etc.
By section 6 it is provided "that in any case where (by the existing law) a majority of the magistrates are required, and do not attend, those who are present may proceed to take the sheriff's bonds, and do any other business that a majority is required to do, which shall be as valid as if done by a majority of said justices." This act would seem to be sufficiently explicit. When a court consists of more than two members a majority is competent to do all the business which the court can do when all the members are present, unless the Legislature otherwise direct. S. v. Lane, 26 N.C. 450. But to remove all doubt, if any should exist, by Laws 1835, ch. 43, sec. 4, it is especially provided "that the justices appointed under this act to hold said courts, or a majority of them, shall be competent to do and perform any matter and exercise all the authority and power which by the existing laws a majority or seven magistrates are required (107) to do." By Laws 1790, ch. 331, sec. 1, and 1814, ch. 872, sec. 18, a majority of the acting justices of the county were required to be present to lay the county taxes, and these two acts were embodied together into one act in 1836, and in that form are re-enacted. Rev. St., ch. 28, sec. 1. But the acts of 1831 and 1835 were not affected by the act of 1836, for it is provided "that no act of a private or local character, etc., shall be constructed to be repealed"by it. Rev. St., ch. 1, sec. 8. The acts of 1831 and 1835 are local laws, and are in full force in the county of Brunswick, and the tax laid by the court in 1842 was legally assessed.
We think the second objection made on the part of the defendants is equally untenable as the first, so far as the question involved in this case is concerned. It is made the official duty of the several sheriffs of the State to collect the taxes within their respective counties (Rev. St., ch. 102, sec. 43), and the several clerks of the county courts are required, within a limited time, to make out and deliver to the sheriff of his county "a fair and accurate copy of the returns made, designating therein the separate amount of taxes due and accruing from each species of property and the amount due from each individual." To enable the sheriff to enforce by distress the collection of the taxes from the individual who has given in his property as required by law, he must be provided with a copy of the returns in the office of the clerk, duly certified by the clerk, that the taxpayer may see the amount which he is bound to pay; otherwise he may refuse to pay, and the sheriff cannot distrain his property; the certified copy is his warrant of distress to collect the taxes. Slade v. Governor, 14 N.C. 365; Kelly v. Craig, 27 N.C. 131. And it is the duty of the sheriff to apply to the clerk in proper time for such a copy. But it is not necessary for him to have the copy, so certified, to enable him to receive the taxes, or, indeed, any copy. Any individual may, if he please, pay to the sheriff the amount of his taxes, and his receipt will be a sufficient discharge, and will be (108) sufficient to charge the sureties of the sheriff and make them answerable, because the citizen, by reference to the returns in the clerk's office, may see what amount of taxes is due from him, and the sheriff is the only person who can rightfully receive them.
On the third point we think the defense fails. Section 1, ch. 43, Laws 1844, provides "that in actions brought upon the official bonds of sheriffs and other public officers, etc., when it may be necessary to prove any official default of any of the said officers, any receipt or acknowledgment of such officer or any other matter or thing which by law would be admissible and competent for or toward proving the same, against such officer himself, shall in like manner be admissible and competent" against his sureties in any action where they are defendants. It cannot be questioned that the acknowledgement of the sheriff, Woodside, was admissible against him, and therefore it was equally competent against his sureties.
PER CURIAM. Judgment reversed, and a venire de novo awarded.
Cited: S. v. Woodside, 31 N.C. 499; S. v. McIntosh, ib., 311; Winslow v. Morton, 118 N.C. 491; Peebles v. Taylor, 121 N.C. 44; S. v. R. R., 141 N.C. 853.
(109)