Worth v. . Cox

Smith, C. J. The defendant Cox, sheriff of the county of Perquimans, being in default, in his settlement of public taxes, and the time allowed therefor having expired, summary judgment -was entered before the clerk in the superior court against him and the other defendants, the sureties, upon their official bond for the sum due, under the provisions of section 44, chapter 117 of the acts of 1881. Pending the motion and before rendition of the judgment, counsel for the sureties, being notified thereof by the clerk, appeared before him and made objection on the gi'ound that indulgence had been granted to their principal, and the time for settlement enlarged by two successive acts of *47 the general assembly, whereby they had been discharged from their liability. The objection was overruled, and judgment recovered for the penalty of the bond, to be discharged by payment of the sum in arrear, but without the penalties superadded for the delinquency. The sureties thereupon proposed to appeal to the judge, as we .suppose, though the record does not so state, and on being refused, applied by petition to him for a writ of certiorari. The ■defence therein set up to the action before the clerk is, that there being no previous notice to the defendants, the judgment was unauthorized and null; and secondly, that the effect of the acts .granting indulgence to the sheriff and extending the time for payment of the taxes, was to release them from their obligation .as his sureties. The judge granted a rule on the treasurer to show cause at a ■designated day why the certiorari should not be ordered, to answer which the attorney-general appeared on the return day •and insisted that the causes assigned in the petition for the writ were insufficient in law to warrant its issue. The application was on the hearing denied, and the defendants’ appeal brings the matter up for determination. The course of proceeding adopted to bring the matters of defence relied on before the judge for adjudication, involves a misconception of the character of the judgment and the proper mode of impeaching it. The judgment is rendered in the superior court and constitutes a part of its records, so that no certified transcript from the clerk was necessary in order to its being judicially taken notice of by the judge, and a simple motion after notice was all that was necessary to bring the matter before him, as is pointed out by ByKum, J., in Prairie v. Worth, 78 N. C., 169. We notice this irregularity to avoid the inference of its receiving our sanction, and consider the application as a motion in the cause. We pi’ocecd then to examine the validity of the defences set up on behalf of the sureties who appeal. *48 ]. The regularity and efficacy of the summary judgment rendered without previous actual notice: In looking into the legislation which introduced this summary process against public agents, we find that in 1793 an act was passed authorizing the attorney-general, on motion, to take judgment against receivers having public moneys in their hands and failing to pay over, and that their own delinquences should be sufficient notice of the motion therefor. The compatibility of the enactment with the constitution was brought in question, in an anonymous case reported in 1 Haywood, 29 (Battle’s Ed., 38), the very next year, and elaborately argued before Judges "Wiij-ijams, Ashe and Macay, by the attorney-general Haywood. The former, who first heard the motion, adhered to the opinion he then expressed, that the act was repugnant to the constitution; while the other judges granted the motion, Judge Asi-ie remarking “that while he had considerable doubts, Judge Macay was so clear in his opinion that the judgment might be taken, and had given such strong reasons, that his own objections had been vanquished.” The same summary remedy, given against delinquent sheriffs to the counties by the act of 1808, came before the court in the case of Oates v. Darden, 1 Mur., 500, and Haul, J., delivering the opinion, sustains the policy of such legislation, and says that “it does not alter the rights of the sheriff,” but only “the mode of proceeding against him, and that the legislature-had the right to do this.” Such acts, in his own words, “are beneficial, and should be liberally construed.” In this case the judgment was rendered after the sheriff had gone out of office. A similar law to that under which the present proceeding was authorized, so far as we know, has been in uninterrupted force and acted on since, the well considered conclusion, in the anonymous case first cited, was announced; nor does the consistency of this summary and efficient remedy against delinquent collections of public money, with the provisions of the organic law, *49 seem to have been drawn in question since, unless in Prairie v. Jenkins, 75 N. C., 545, wherein RodmaN, J., thus disposes of the two objections made for the appellant. 1. “ The first ground on which the plaintiffs put their claim to relief is, that the judgment was taken before the clerk of the superior court and not before the judge in term time. This objection to the judgment is answered by the act of 1872 — NS (Bat. Rev., ch. 102, §38), which expressly directs the proceeding complained of. 2. That the judgment was taken without notice to them. This also is directed by the act cited.” This summary mode of enforcing the collection of taxes may be necessary in carrying on the operations of government, which would be often seriously interfered with if the state were forced to pursue the ordinary action upon the bond and subject its recovery to the delays incident thereto, and with an unlimited right of appeal on the part of the delinquent and his sureties. The office is accepted and the bond given under the known conditions of the law that permits this direct and expeditious remedy in case of default, and these may be said to enter as elements into the contract itself. But it is enough to say that if any law can be deemed settled and' not longer to admit of controversy, the practice under this, or a similar enactment for near a century past, has established its validity. It is suggested in argument for the appellants that the present constitution, essentially different from its predecessor, delegates to the general assembly all the power it possesses, and is not a mere limitation upon general legislative power, and hence there is no warrant for the enactment. We do not see any material difference between them, in this respect, in their declaration of personal rights and immunities,_ which the act may be supposed to invade; and as it is a part of the machinery provided for the collection of public taxes and *50 their payment into the treasury, the act, as incident thereto, is necessarily involved in the power to levy and collect taxes for the support of the government. 2. We are now to examine into the effect of the statutory indulgence upon the obligation of the sureties. The act of 1879, ch. 168, after a recital of the robbery of the sheriff of a specified sum collected from taxes, proceeds to declare: “That John H. Cox, sheriff' of Perquimans county, be allowed until the 1st day of February, 1881, to pay the treasurer the said sum of $1,642; and he and his sureties on his official bond shall be relieved until' the expiration of the term hereby allowed, of all penalties, forfeitures and liabilities, by reason of not paying over to the treasurer the said sum of which said sheriff was robbed.” The other act simply extends the indulgence for a period of two years longer. Acts 1881, ch. 225. It will be observed that the relief is extended not alone to the sheriff, but equally to his sureties; nor does it seem to impair any equities which, growing out of their relations, they may have against him. It is true there are some adjudications which hold the sureties to be exonerated by giving time to the principal, as in the present case, some of which were referred to in argument, and others are cited in the note to section 324, in Brant on Surety-ship; other adjudications are referred to by the same author. Wo think the latter better supported on reason, aud, instead of comments of our own, quote from that section: “Laws that require that settlements shall be made at stated times are merely directory to the officers of the government, and form no part of the contract with the sureties, and the change of such laws in no .way affects the right of the sureties.” Besides, using the language of the judge in Commonwealth v. Holmes, 25 Grattan (Va.), 771, “the indulgence granted to the officer by the extension of time in this case is not a contract, but is an ordinary act of leg *51 islation for the public good, with no consideration for the extension moving from the officer, and is repealable at the will of the general assembly.” But while some intimation of approval of the contrary rulings is given in the opinion in Prairie v. Jenhins, the point is presented and a distinct exposition of the law announced in the later case of Prairie v. Worth, wherein Byjnum, J., thus expresses the views of the court: “The collection of public taxes must be conducted under the continuous supervision and control of the legislative department of the government. The laws, affecting the assessment and collection of the public revenues, must be from time to time made more or less rigorous in their enforcement, or otherwise modified to conform to the existing condition of the country, the depression of trade, the failure of crops, the scarcity of money and other causes, often delicate and complex, affecting the sensitive subject of taxation. * * * Every collecting officer therefore accepts and gives bond, affected with notice and subject to the exercise of this right of sovereignty. It enters into and becomes a part of the contract with the state, and is as binding on the bondsmen as any express condition of the bond, subject to the power of the legislature to control its duties as the public good might require.” This reasoning, clear and logical, commends itself to oúr approval, aside from its force as an adjudication of the court. We are unable to see the force of the argument, which deduces from a mere forbearance to cbforce penalties against a delinquent and his sureties, and the giving him time to replace public moneys, of- which he has been robbed, the exoneration of the surety obligors from all further liability to make payment. There is no error, and the judgmet must be affirmed. No error. Affirmed.