Opinion
June Term, 1828.
From Wilkes.
1. By the act of 1819 (Rev., ch. 499), the sheriff who is in office on the 1st day of April in each year is bound for the taxes collectible during that year, although his term may expire before they can be collected.
2. Therefore, where a sheriff was elected after the 1st day of April, and resigned in February ensuing, he is not liable for the collection of any taxes.
DEBT upon the official bond of George G. Witherspoon, as sheriff of Wilkes, the condition of which was "that the said G. G. W., sheriff, etc., shall settle with the county trustee for the county, jail, and poor taxes for the year 1821, in the time prescribed by law."
Wilson for the plaintiff.
No counsel for the defendants.
The breach assigned was that G. G. Witherspoon had not collected the taxes imposed in the year 1820.
On the trial a verdict was taken for the plaintiff, subject to the opinion of the court upon the following case:
G. G. Witherspoon was elected in April, 1821, when he gave the bond on which this suit was brought; he held the office of sheriff until the ensuing February term of the county court, when he tendered his resignation, which was duly accepted and a successor appointed.
At April Term, 1821, sundry taxes were imposed for 1820, and at the same term, in 1822, sundry others for 1821, when the court directed that the tax books for 1821 should be delivered to the successor of G. G. Witherspoon. At April Term, 1821, the tax list for 1820 had been delivered to one Thomas Witherspoon, who was the predecessor of G. G. Witherspoon, Thomas Witherspoon being at that time acting sheriff.
No tax lists were ever delivered to G. G. Witherspoon, and his election took place after the first day of April, 1821.
(452) Upon this case his Honor, Judge Norwood, set aside the verdict and directed a judgment to be entered for the defendants, from which the plaintiffs appealed.
The question in this case is whether the sureties for G. G. Witherspoon, late sheriff of Wilkes, are liable for the taxes of 1820, by virtue of their bond. It appears from the record that Witherspoon was elected sheriff at April session, 1821, and that the bond is conditioned for the taxes therein specified for the year 1821. To make the sureties responsible for any other taxes than those would be going beyond the bond. But the taxes laid in 1821 were collected only in 1822, with the exception of the case where persons were about to remove to avoid the tax; before that period the sheriff for 1821 had no power to act in that respect, and when that time arrived, he had resigned the office, as he is permitted to do by law."The respective sheriffs are to proceed, after the first day of April in each and every year, to collect the taxes." Act of 1819, Rev., ch. 999. Under the true construction of this act, the right to collect the taxes does not attach in the sheriff unless he remain in office after the first day of April, nor consequently can responsibility attach to his sureties. The consequence of a different construction would be to make two different sets of securities liable for the taxes of 1820, viz., the sureties of Thomas Witherspoon, who was sheriff for that year, and who remained in office until after 1 April, 1821, and to whom the tax bills were then delivered, and the present defendants, the sureties of G. G. Witherspoon. By thus remaining in office until the right to collect began, Thomas Witherspoon was bound to settle with the comptroller in October, 1821, and although out of office, is invested with various powers to enforce the collection of taxes. Acts of 1801, ch. 570; (453) 1814, ch. 872; 1819, ch. 999.
The county court entertained a correct opinion of the orderly mode of proceeding, for they directed the tax bills to be delivered to the successor of G. G. Witherspoon, because he was in office when the tax became collectible; and the bills of 1820 were delivered to Thomas Witherspoon, because he was in office in 1821.
The act of 1819 can only mean that the sheriff then in office shall proceed to collect the taxes; not any one who had been sheriff during the preceding year; for then, if there had been several, which shall be selected? By confining it to this period much confusion is avoided; and though the sheriff should not be reelected, or should resign immediately after his election, he may proceed nevertheless to collect the taxes, that the public may be secured and his sureties indemnified. I am, therefore, of opinion that the judgment appealed from was correct.
PER CURIAM. Judgment affirmed.
Approved: Dickey v. Alley, post, 455.