Falconer v. Shores

English, C. J. At the general election, sixth Septem1880, Richard Q. Shores was elected sheriff of Franklin county; he was commissioned by the G-overnor on the eleventh of September, executed a bond as such, which was approved by the County Judge on the first of October, 1880, and on the eighteenth of the same month took the oath of office. Pie failed to give bond, as collector, before the first Monday of January, 1881, as required bylaw. The clerk of'the-County Court notified the Governor of the failure, and the-Governor, on the eleventh of January, 1881, appointed and commissioned John P. Falconer as collector, who executed a. bond as such, which was approved by the Circuit Judge on the nineteenth of the same month, and on the same day he-took the oath of office. In the meantime, on the fourteenth of January, 1881,. Shores made a bond as collector, which on that day was-approved by the County Judge. On the eleventh of April, 1881, he procured the County Clerk to deliver to him the tax books for 1889, with a warrant for the collection of the taxes of that year ; and on the twenty-fifth of the same month Falconer commenced this-suit against him for the office of collector, etc. Shores, in his answer to the complaint, relied for defense on the fact that he had made and jarocured the approval of' his bond as collector on the fourteenth of January, 1881.. The plaintiff demurred to the answer; the court overruled, the demurrer, holding the complaint bad, and plaintiff resting, judgment was rendered in favor of defendant, and. plaiutiff appealed. 1-Ooleec-revenue. iiofc giving preseiBefore the adoption of the present Constitution the officecoqector of taxes was statutory. The Statute in force-when the Constitution was adopted provided that the sheriff of each county should be ex-officio collector, and before-entering upon his duties as collector should give bond before the first Monday of January of each year, etc. Gantt’s Dig., secs. 5157-9. Section 46, Article VII., of the Constitution provide» that the qualified electors of each county shall elect one sheriff, who- shall be ex-officio collector of taxes, unless otherwise provided- by law, for the term of two years, thereby leaving the office of collector under legislative control. A person who is sheriff and collector, under existing laws, holds two distinct offices, and is required to give bond as sheriff, and also to give bond as collector. McCabe, ex parte, 33 Ark., 396. Appellee, Shores, was sheriff when he received his commission, and qualified as such by executing bond and taking the oath of office. But he could not enter upon the duties of the office of collector until he executed bond, as prescribed by law. He was required to give bond as collector before the first Monday of January, 1881. Acts of March 5, 1875, sec. 12 ; Acts of 1874-5, p. 225. 2. Same : Success- or appointed on fai1ure to give bond. The Act of twenty-fifth February, 1875 (Acts of 1874-5, p. 165), in effect, declares that when a sheriff shall fail to give the bond required by law, as collector of the revenue, at the time required by law, he shall forfeit his right to the office of collector : and makes it the duty of the clerk of the County Court immediately to notify the Governor of such failure, and of the Governor to appoint some suitable person collector of revenue, and provides that the person so appointed shall hold the office until his successor is elected and qualified; and requires him to qualify and give the bond required by law within ten days after he is notified of his appointment; and if he fail, the Governor is required to appoint some other person, etc. Appellee failed to give bond in the time prescribed by law; the failure was certified by the clerk to the Governor, who, on account of such failure, declared the office of collector vacant, and appointed and commissioned appellant to fill the vacancy; after all of which appellee made a bond, but that did not help him ; he was too late. This case is unlike State v. Carnell, 10 Ark., 156, in which it was decided that a sheriff could not be deprived of his office for failing to return his assessment list within the time prescribed by law, without a judicial ascertainment of the delinquency. There the sheriff was in office, and there was an attempt to oust him for an omission of official duty, without judicial inquiry. Here appellee had not entered into the office of collector, and forfeited his right to do so by failure to give bond as such, and within the time fixed and limited by law. There is no constitutional reason why the Legislature might not entrust to the Governor the ascertainment of such failure. It is sufficient to say of Boseley v. Woodruff County Court, 28 Ark., 306, that it arose under a different Statute from the one now in question, and the case, on its facts, is not like this. The giving of a bond by the sheriff, and the time of making it before he enters upon the office of collector' of revenue, is of public importance. The Statute requires it to be given before the first Monday of January. If, in disregard of the law, he may defer it to the fourteenth of the month, he may postpone it through the period prescribed for the collection of the revenue, to the detriment of the public. In other words, he may disregard the time prescribed by law#for him to execute the bond, and fix his own time at pleasure, or as cbnvenient. The statute fixing the time cannot be treated as directory, because the Legislature has declared the consequences of the neglect; that is, in effect, that the sheriff shall forfeit his right to the office of collector, and the Governor, on being-informed by the county clerk of such failure, shall appoint and commission some person to be collector in his place. Sedgwick on Construction of Statutory and Constitutional Law, second edition, p. 326; Basham, &c. v. Commonwealth, 13 Bush, 36. 3. SAME: Not elective. Vacancy bow filled. It was submitted in argument that the Governor had no power to appoint appellant collector, because the vacancy in the office occurred more’ than six months before the then next general election, citing Sec. 50, Art. YII of the Constitution. That section provides that: “All vacancies occurring in any office provided for in this article, shall be filled by special election; save that in cases of vacancies occurring in ■county and township offices, six months, and in other offices nine months, before the next general election, such vacancies shall be filled by appointment by the Governor.” This section applies to elective officers, and - not to the ■office of collector, which, as such, is not filled by the voice of the electors. Same : Office of subject to legislative control. The sheriff is elected by the qualified electors, “who,” section 46 of the same article declares, “shall be ex-officio collector of taxes, unless otherwise provided by law.” This, as above observed, leaves the office of collector under legislative control, and doubtless the Legislature has power to provide by law for collectors to be appointed by the 'Governor, or in such other mode as may be directed. By the acts above cited, passed since the adoption of the Constitution, the Governor is authorized to appoint and commission some suitable person collector of revenue, on the failure of the sheriff to give bond as collector at the time required bylaw, etc., and these acts are in conflict with no provision of the Constitution. ■Wbenappoin t e d, may enter into office, or sue for it. It was further submitted, in argument, that at the time appellant commenced this suit, his bond as collector had not been approved by the Circuit Ccourt in term ; that his title to the office had not, therefore, been perfected, and he was not in a condition to maintain the action. The Statute requires- the person appointed by the Governor to give the bond require by law within ten days after he-is notified of his appointment, and if he should fail, the Governor is required to appoint some other person. Appellant was commissioned oir the eleventh of January, 1881, and executed a bond, which was approved on the nineteenth of the same month by the Circuit Judge, in vacation, as authorized by the Act of March 1, 1875. (Mcfe of 1874-5, p. 194.). He had the right, on such approval of his bond, to enter upon the duties of the office of collector, and to bring suit against an intruder. To require him to delay entering upon the duties of the office, or to sue an intruder, until his bond should be finally-approved by the Circuit Court in term, might be to postpone his right to collect the taxes, and to sue for the office, until the whole period prescribed by law for the collection' of the public revenue, making tax sales, etc., had transpired, as no term of the Circuit Court might be held in his-county during that time, there being but two regular terms-a year. The amended complaint, which the court held bad on demurrer to the answer, showed a good cause of action (under Seo. 5748 Gantt’s Dig.), and the answer set up-no valid defense. Reversed and remanded, with instructions to the court below to sustain the demurrer to the answer, and for further proceedings.