Opinion
June Term, 1853.
1. The school tax levied by the county courts under the act of 1844, chapter 36, section 6, is a "county tax."
2. Therefore, where the condition of a sheriff's bond provided for his "collecting all county taxes," and paying them over "to the persons authorized to receive the same": Held, notwithstanding the condition did not contain any provision respecting the collection and payment of the school tax, as expressly directed by the said act, that the sheriff and his sureties were liable for the failure to collect and pay over that tax.
(The case of Bradshaw, 32 N.C. 229, cited and approved.)
THIS was an action of debt, brought by the plaintiff, as chairman of the board of superintendents of common schools for Currituck County, against the defendant, Dozier, on his bond as sheriff of that county, and his sureties. Upon the plea of conditions performed, the only question presented on the trial before Saunders, J., on the Spring Circuit, at CURRITUCK, was whether the official bond of the defendant, Dozier, contained any condition for his accounting for and paying over to the plaintiff the school tax by him collected in the years 1848-'49. The following is the condition of the bond declared on:
W. N. H. Smith and Jordan for plaintiff.
Heath, Pool and Hines for defendants. (276)
"Now, if the aforesaid Samuel B. Dozier, sheriff, shall well and truly account for and pay over to the county trustee all county taxes by him collected or received, and shall well and truly collect the same as he ought, and pay the same over to the county trustee or any other person entitled to receive the same, and shall well and truly discharge the several duties of sheriff during," etc.
It was submitted to his Honor as of a case agreed, that if he should be of opinion with the defendants, judgment of nonsuit should be entered; if with the plaintiff, he should have judgment for the sum of $1,074.09, the sum reported to be due by the clerk to whom the account had been referred. And his Honor being of opinion with the defendants, there was judgment of nonsuit accordingly, and the plaintiff appealed to the Supreme Court.
In the year 1844, the Legislature passed an act for the collection of what is called the Common School Fund. (Ire. Dig. Man., 105.) In the sixth section of the 36th chapter, the court of each county is required to levy a tax for that purpose, and the sheriff is directed to collect it "in the same manner that other county taxes are now levied for other county purposes." The same section directs that the bond, given by the sheriff to secure the payment of county taxes, "shall contain a condition for the faithful collection and payment of the school taxes to the person authorized to receive the same." In the bond of S. B. Dozier, the sheriff, this condition, it is contended, as set forth in the act, is omitted; and the only question presented to us is, whether the sheriff and his sureties are answerable for this tax collected by the former and not paid over, by force of any condition contained in their bond. We think they are. The sheriff's bond contains the following condition: "Now, if the said Samuel B. Dozier, sheriff, shall well and truly account for and pay over to the county trustee, all county taxes by him collected or received, and shall well and truly collect the same as he ought, and pay the same over to the county trustee, or any other person authorized to receive the same, then," etc. This condition does substantially pursue the direction of the statute. The common school tax is a county tax. By the act of 1844, it was provided, that this fund should be distributed annually among the several counties of the State, in the ration of their federal population. The fund thus provided was deemed insufficient to carry out the system through the State, and instead of providing by a public tax for the deficiency, the Legislature resorted to the expedient of calling upon each county to render its aid, when it was desirous to avail itself of the public fund. No county is compelled to do so. So far then as the establishment of common schools is intended, the act is a general law; but so far as the aid of each county is required in raising the necessary funds, it is local, and the tax to be raised is a county tax, individual to each county. It is, therefore, in substance a county tax, to be expended in the county for the education of the children within it, and for none others. But the Legislature has left no doubt upon the question. The tax is in the act called a county tax, to be collected as other county taxes. Such is the language of the act. The condition of the bond in question does cover the (277) tax laid for the use of the common schools in Currituck County. The case of Bradshaw, 32 N.C. 229, to which our attention has been called, confirms the view of the act we have taken. That was an action of debt upon the general bond of the sheriff of Rowan, against him and his sureties. The condition was general as in this case. The Court decided that where a statute requires a bond from an officer for the faithful discharge of his duties, and a new duty is by a subsequent act imposed on the officer, such bond, given subsequently to the latter statute, embraces the new duty, and is a security for its performance, unless the subsequent act requires a separate bond for the performance of the new duty. In this case, the act of 1844 does not require a new bond to be given by the sheriff for the collection of the common school tax, but that a condition to that effect shall be inserted in the bond to be given.
We are of opinion that the bond declared on does embrace the condition required in the act of 1844, and the plaintiff is entitled to judgment against all the defendants.
Judgment below reversed, and judgment for the plaintiff for the sum of $1,074.09, according to the case agreed.
PER CURIAM.
Judgment reversed.
Cited: Williams v. Lindsay, post, 323; Board of Education v. Bateman, 102 N.C. 55; Commissioners v. Sutton, 120 N.C. 301.