Cansler v. Penland

• Decision Date: 22 December 1899
• Citation: 125 N.C. 578,34 S.E. 683
• Court: North Carolina Supreme Court
• Parties: CANSLER. v. PENLAND.

34 S.E. 683

125 N.C. 578

CANSLER.

v.PENLAND.

Supreme Court of North Carolina.

Dec. 22, 1899.

SHERIFFS—DELEGATION OF AUTHORITY—CONTRACTS VOID AS AGAINST PUBLIC POLICY—WAIVER—INVALIDITY.

1. Under Code, § 2084, providing that "no sheriff shall let to farm, in any manner, his county, or any part of it, " prohibiting a delegation of his powers, a contract of a sheriff and tax collector with another, that the latter shall receive the tax list and collect the taxes for certain years for a certain commission, is void, as against public policy, and hence the sheriff cannot recover from the collector collections made by him under the contract.

2. A defense that the contract is void, as against public policy, cannot be waived by a party thereto.

Appeal from superior court, Macon county; Greene, Judge.

Action by J. Cansler against G. N. Penland. From a judgment for plaintiff, defendant appeals. Reversed.

Simmons, Pou & Ward, for appellant.

Shepherd & Busbee, for appellee.

FAIRCLOTH, C. J. This is an action for an alleged balance due the plaintiff by the defendant on the following facts: The plaintiff was sheriff and tax collector of Macon county, and the tax list was in his hands for collection for the years 1891 and 1892. Plaintiff and defendant contracted with each other that the defendant was to collect the taxes for those years, and to receive a commission of 2 1/2 per cent. for making collections, and the tax list was turned over to the defendant by the plaintiff. This action was commenced in 1894. The matter was referred, and the result was a judgment in favor of the plaintiff for $93.02, with interest and costs. Appeal by the defendant.

In this court the defendant contends that the contract was illegal and void, and that the plaintiff cannot maintain his action. Thisquestion has not heretofore been presented to this court, and the defendant's counsel disclaims any insinuation that the contract was corruptly made, or that the parties intended to violate the law. We agree with counsel that the contract was illegal and void, on the grounds of public policy. Code, § 2084, says: "No sheriff shall let to farm, in any manner, his county, or any part of it, under pain, " etc.; meaning his office. There is no question of fraudulent purpose in the case. The question is one of policy and safety to the public interests, and that is highly important. There can be no doubt that a sheriff may employ a deputy or other private person to assist him, but he cannot delegate his authority to another, as that would tend to injure the public service. The public has an interest in the proper performance of their duties by public officers, and would be prejudiced by agreements tending to impair an officer's efficiency, or in any way interfere with or disturb the due execution of the duties of the office. The office of sheriff and tax collector is one of public confidence and fidelity to a public trust, and cannot be a matter of bargain and sale. It requires good faith and duty. Under the present contract, the duty, the power, and the. control of the tax collector's office are placed in the hands of the defendant. True, the sheriff's bond is liable for the amount of collectible taxes, but the public trust and confidence are not secured by his bond. As to the validity of contracts, the law makes no distinction between acts mala in se and acts mala prohibita or wrong simply because they are prohibited by statute. When a statute intends to prohibit an act, it must be held that its violation is illegal, without regard to the reason of the inhibition, or the morality or immorality of the act; and that is so, without regard to the ignorance of the parties as to the prohibiting statute. The law would be false to itself if it allowed a...