Bray v. . Barnard

Mebrihon, C. J. after stating the case: The statute (The Code, § 711) prescribes that “Any (County) Commissioner, who shall neglect to perform any duty required of him by law, as a member of the board, shall be guilty of a misdemeanor, and shall also be liable'to a penalty of two hundred dollars for each offence, to be paid to any person who shall sue for the same.” The plaintiff contends, first, that the defendant incurred a penalty, under this statutory provision, because the Sheriff mentioned failed, for the year specified in the fifth paragraph of the complaint, to file the annual bonds required of him, and to produce receipts for moneys that he had collected, or ought to have collected, whereby his office became vacant, as prescribed by the statute (The Code, § 2070), and the defendant neglected to perform his duty as Commissioner, in that he and his associates did not proceed to fill the vacancy so occasioned by appointment, as prescribed and required by the statute (The Code, § 720), which provides, that “Whenever a vacancy shall occur in the office of Sheriff, Constable, Register of Deeds, County Treasurer or County Surveyor, the Board of Commissioners of the county shall fill the same by appointment.” He contends, secondly, that the defendant incurred another penalty, as alleged in the eighth paragraph of the complaint, because the Board of Commissioners, the *47 defendant joining them, failed to declare the office of the Sheriff vacant for the causes alleged, as required by the statute (The Code, § 1875), which prescribes that “Upon the failure of any such officer (including Sheriff) to make such regular annual renewal of his bond, it is the duty of the Board of Commissioners, by an order to be entered of record, to declare his office vacant, and fo proceed forthwith to appoint a successor,” etc. The Couit below was of opinion, and held, that the duties of the Board of Commissioners of the county, prescribed by the statutory provision just cited, were substantially the same as those prescribed in the other statutory provision {The Code, § 2070) cited svpra. In this, we think the Court was correct, in so far as these sections affect this case. They, as to the Sheriff, are intended to secure the same purpose, except that § 2070 enlarges the purpose so as to require the Sheriff, in addition to the renewal of his bonds annually, to “ produce the receipts in full from the State Treasurer, County Treasurer, and other persons, of all moneys by him collected, or which ought to have been by him collected, for the use of the State and county, and’ for which he shall become accountable,” etc. As to the Sheriff, in respect to the annual renewal of his bonds, the sections are in pari materia and mu't be taken together — they are intended to effectuate the same purpose. It is not presumed that the Legislature intended to impose double penalties for the same failure of duty in a public officer. If it had so intended, it would have said so in explicit terms. The duty of the Board of Commissioners was to declare the office of Sheriff vacant and to fill- the vacancy, when, and if, he failed to renew his bonds annually — the same duty is prescribed by the two sections of The Code just cited. In one of these sections the same duty arises if the Sheriff shall fail to produce the receipts mentioned as required. Under this section; if the Sheriff should fail to renew his bonds, it would be the duty *48 of the Board of Commissioners to declare his office vacant; if he renewed his bonds, and failed to produce the receipts mentioned, it would be their like duty; it would be their like duty if he failed to renew his bonds and to produce the receipts required. But, in the latter case, they would not be liable to two penalties. The purpose of the sections cited of the statute, is to compel the Board of Commissioners to perform their duty in declaring the office of Sheriff vacant and filling the vacancy in any one, or more, or all, of the contingencies specified therein. Only one penalty is given against each Commissioner composing the Board, if he fails to perform his duty in such respect. That penalty, in this case, the plaintiff recovered under and in pursuance of the allegations contained in the fifth paragraph of his complaint. We are also of opinion that the Court properly decided that the ninth paragraph of the complaint set forth above fails to state facts sufficient to constitute a cause of action. The statute (The Code, § 775,) certainly does not make it the imperative duty of , the Board of Commissioners of the county to “ bring suit on the official bond of the Sheriff or other officer;” it provides that they “may forthwith ” do so. It is thus left to their sound discretion whether they will or not. There might be substantial reasons why they would not, and, moreover, they might be content to leave it to the County Treasurer to bring such suit, especially as, regularly, he is the proper officer to do so. Hewlett v. Nutt, 79 N. C., 263. The plaintiff claiming under this statutory provision should, at least, allege facts showing that the Board of Commissioners had negligently failed, or wilfully refused, to exercise their authority, and, hence, they had neglected to perform théir duty as required by law. In such case, it may be that each of them, participating in such neglect, would incur the penalty prescribed. Affirmed.