Pender County v. . King

Olarkson, J. 0. S., 3930, is as follows: "Sheriff to execute three bonds. The sheriff shall execute three several bonds, payable to the State of North Carolina, as follows: One conditioned for the collection and settlement of State taxes according to law, a sum not exceeding the amount of the taxes assessed upon the county for State purposes in the previous year. One conditioned for the collection and settlement of ■ county and other local taxes according to law, a sum not exceeding the amount of such county and other local taxes for the previous year. The third bond, for the due execution and return of process, payment of fees and moneys collected and the faithful execution of his office .as sheriff, shall be not more than five thousand dollars, in the discretion of the board of county commissioners, and shall be conditioned as follows: “The condition of the above obligation is such that, whereas the above bounden . is elected and appointed sheriff of . County; if, therefore, he shall well and truly execute and due return make of all process and precepts to him directed, and pay and satisfy all fees and sum of money by him received or levied by virtue of any process into the proper office into which the same, by the tenor thereof, ought to be paid, or to the person to whom the same shall be due, his executors, administrators, attorneys, or agents; and in all other things well' and truly and faithfully execute the said office of sheriff his continuance therein, then the above obligation to be void; otherwise to remain in full force and effect.” The State now assesses no tax on land in a county for State purposes. In the present action the second and third bonds were given. C. S., 3931, county commissioners to take and approve bonds. C. S., 3932, duty of county commissioners when bond insufficient, etc. “After a thorough examination of the authorities this Court held in S. v. Martin, 188 N. C., 119, that each bond of a clerk is liable only for defalcations occurring during the term for which the bond is given, even though the principal and surety be the same for all terms. Stacy, J., *54 writing for tbe Court, said: ‘Each term, like every tub of Mackliniau allusion, must stand on its own bottom.’ ” Gilmore v. Walker, 195 N. C., at p. 464. Jacksonville v. Bryan, 196 N. C., 721. It is settled in this jurisdiction that when the term of office is more than one year official bonds given by an officer during any one term of office are cumulative, and the new bond does not discharge the old one. S. v. Martin, supra; Oats v. Bryan, 14 N. C., 451; Bell v. Jasper, 37 N. C., 597; Moore v. Boudinot, 64 N. C., 190; Pickens v. Miller, 83 N. C., 544; Fidelity, etc., Co. v. Fleming, 132 N. C., 332. The National Surety Company of New York, as surety, was liable for the alleged defalcation of Sheriff King for (1) The first term of two years — King qualified the first Monday in January, 1923 (should have qualified first Monday in December) ; (2) Second term of two .years qualified first Monday in December, 1924. King was reelected in general election of 1926, and held over until 3 January, 1927, and on account of not making settlement and filing bond the office was declared vacant. C. S., 3926, 3931. Lenoir County v. Taylor, 190 N. C., 336. The appointee of the board of county commissioners of Pender County, having failed to give bond, the office again was declared vacant and King appointed sheriff. He filed, on 4 April, 1927, an “execution” bond in the sum of $5,000, with National Surety Company of New York,’ as surety, and for the faithful collection and accounting for all county and local taxes as required by law' a bond in the sum of $30,000, with J. T. Bland, Sr., and others as sureties. All tbe taxes and fees unaccounted for by King, sheriff, appear from tbe record were collected in tbe years tbat tbe National Surety Company of New York was on bis bond, except taxes $5,676.57, collected 30 April, 1927, and $184.74 collected 29 June, 1927. Tbe third term King held tbe office of 'sheriff, not by virtue of bis election, as be failed to comply with tbe law and was disqualified, another was appointed and be did not qualify,, and King was then appointed sheriff by tbe board of county commissioners of Pender County, and held tbe office by virtue of tbe statute. It is said in Lenoir County v. Taylor, supra: “Upon the failure of a sheriff-elect to give bonds required by law, the board has power to elect some suitable person in the county as sheriff for the unexpired term.” C. S., 3932. Tbe board it is presumed elected a suitable person sheriff, who did not qualify and bis office was declared vacant, and King was appointed sheriff and qualified and gave tbe bonds required. He held by virtue of bis appointment, not bis election. Chapter 482, Public-Local Laws 1921, applicable to Pender County, put tbe sheriff and other officers on a salary basis. Section 7, is as follows: “Tbe officers hereinbefore *55 mentioned shall faithfully perform all the duties of their several offices imposed upon them by law, and shall receive no other compensation or allowance whatsoever for any extra or additional service rendered to the county or State governmental agencies, and they shall be liable to all the pains and penalties now or hereafter provided for failure to perform the duties of their several offices.” This act merely placed the sheriff ou a salary instead of a commission basis. In Commissioners v. Bain, 173 N. C., at p. 378-9, it is said: “It has been the custom in this State for the retiring sheriff to collect the taxes due on tax lists already in his hands, and this custom has the sanction of numerous judicial decisions: In Fitts v. Hawkins, 9 N. C., 396, Taylor, C. J., says: ‘A sheriff who is elected for the first time has nothing to do with the list of the preceding year before he was in office. The clerk has delivered them to his predecessor, who alone has authority to collect under them; and the law makes no provision for setting them over to the new sheriff, as in case of prisoners and writs. If he receive the lists and collect the taxes, it must be in consequence of some private arrangement between the predecessor and himself, which cannot undoubtedly bind his sureties in this form of proceeding, for if it could they would be responsible for two years instead of one (at that time sheriff's term was one year). If the sheriff is reelected he is then bound to collect the taxes of the preceding year; but this is by virtue of his former appointment, and under the responsibility of his old bond.’ ” See cases cited in the opinion. The appointment of King as sheriff by the board of commissioners of Pender County on 4 April, 1921, made him a new sheriff, he did not comply with Public-Local Laws 1927, chapter 123. Section 10 of the act, relative to other things, also increased the sheriff’s salary to $4,800 per annum. It may be noted the decisions on the questions involved are often governed by local as well as general statutes. The’ question involved,: Can one action, under the facts and circumstances of this case, be brought against King, for alleged defalcations, and the National Surety Company of New York, his surety, on the bonds for the first two terms mentioned and on the “execution” bond for appointment term and against J. T. Bland, Sr. (his administratrix) and others, his sureties, for the term which he was appointed and not elected? We think not. In Bank v. Angelo, 193 N. C., at p. 578, citing numerous authorities, it is said: “It is well settled that where there is a misjoinder, both of parties and causes of action, a demurrer is interposed upon this ground, the demurrer should be sustained and the action dismissed.” *56 King and bis sureties all demurred to the complaint. The demurrer must be sustained. Blackmore v. Winders, 144 N. C. 212, is not applicable from the facts on this record. Is Sheriff King’s “execution” bond liable for fees wbicb it is alleged that be collected as sheriff when be was placed on a salary basis? We think so. The third bond and the form set forth by the statute requires, in clear language, payment of fees and money collected. The bond required shall not be more than $5,000. C. S., 3930, supra. Under Public-Local Laws 1921, cb. .482, sec. Y, supra, the salary basis does not affect the provisions of the bond. The statute, section 7, says “Shall be liable to all the pains and penalties now or'hereafter provided for failure to perform the duties of their several offices.” To the same effect is section 10 of chapter 123, Public-Local Laws 1927. As to tbe second ground of demurrer, as to misjoinder of several causes of action, see C. S., 507, 516 ; S. v. McCanless, 193 N. C., 200. As to the third ground of demurrer, as to defect of parties, see N. C. Code 1927, annotated; C. S., 511. We think it unnecessary to consider the second and third grounds of demurrer. Tbe demurrer is sustained as to all tbe defendants. For tbe reasons stated, tbe judgment below is Affirmed.