Commonwealth v. Drewry
| Decision Date | 24 November 1858 |
| Citation | 56 Va. 1 |
| Court | Virginia Supreme Court |
| Parties | COMMONWEALTH v. DREWRY & als. |
1. The act of March 15, 1856, Sess. Acts 1855-56, ch. 8, § 2, p. 8 extending the term of the sheriff from July 1, 1856, to January 1, 1857, is constitutional.
2. The act does not embrace two subjects in the sense of the constitution, article 4, § 16.
3. The sheriff elected in May 1854, executed his official bond and entered upon his office and continued to act until January 1857, but did not execute a bond under the act of March 15 1856. His successor, elected in May 1856, executed his official bond in June following, but did not enter upon his office until January 1857. If the said act was unconstitutional, still the first sheriff held over after the 1st of July under the constitution, article 6, § 23; and having collected the state taxes of 1856, his sureties in the bond of 1854 are liable for them.
This was a motion in the Circuit court of the city of Richmond, by the auditor of public accounts, on behalf of the commonwealth, against John M. Drewry, late sheriff of Norfolk county, and Elizabeth Drewry and four others as his official sureties, to recover the land, property, capitation, free negro and September license taxes of 1856, due from Drewry as sheriff, and the interest and damages thereon according to law.
The case came on for trial in January 1858, when there was a judgment against John M. Drewry for twenty-six thousand six hundred and three dollars and seventy-one cents, with interest at the rate of six per cent. per annum from the 15th of November 1856 until paid, and three thousand nine hundred and ninety-nine dollars and fifty-five cents for damages thereon; subject to a credit of four thousand two hundred and eleven dollars and fourteen cents, as of the 16th of July 1856, and a further credit of seven hundred and fifty-one dollars.
The cause as to the sureties was continued, and came on to be tried on the 4th day of February 1858, when the court held that there was no liability on the defendants as sureties of Drewry; and therefore dismissed the motion. To this opinion and judgment of the court the commonwealth excepted.
It appeared that John M. Drewry had been duly elected the sheriff of Norfolk county in May 1852, and had qualified and acted as such for the term extending from July 1st, 1852, to July 1st, 1854. That he had been re-elected in May 1854, and had qualified and acted as sheriff from the end of his first term to January 1st, 1857. That in July 1854 he had executed a bond with the defendants as his sureties, with condition for the faithful performance of his duties. That he had given no new bond under the provisions of the act of March 15th 1856, ch. 8, Sess. Acts 1855-56, but that he collected the taxes for the year 1856. That Thomas D. Butt was elected, in May 1856, sheriff of Norfolk county, and on the 21st of June following executed a bond with sureties, with condition for the faithful performance of the duties of the office: And on the same day appeared in open court of said county, and took the several oaths prescribed by law; and entered upon his duties as sheriff on the 1st of January following.
It appeared further, that there were three commissioners of the revenue in the county of Norfolk, and their books were certified in the usual form to have been delivered to Drewry the sheriff on the 14th of June 1856; and these books were received by the auditor at Richmond, one of them on the 30th of June, one other on the 1st, and the third on the 28th of July. But the defendants proved that though one copy of each of the books had been returned to the clerk's office, and was examined by the clerk before the 15th of June, and so probably were all the copies of the books of one of the commissioners; that as to the books of the other commissioners, all the copies were not examined before that date, and that these last books were not delivered to the sheriff before the 1st of July. The amount appearing to be due on the land and property books of each of the commissioners was stated: And the attorney for the commonwealth withdrew the account against the sheriff for the license tax; and moved for a judgment for the amount appearing to be due for other taxes. And the court having dismissed the motion, the commonwealth applied to this court for a supersedeas to the judgment, which was awarded.
The Attorney General, for the commonwealth.
Hubard and Murdaugh, for the appellees.
By the constitution of Virginia, article 6, § 30, it is ordained, amongst other things, that the voters of each county shall elect a sheriff, who shall hold his office for two years. By § 23 of the same article, it is ordained that judges and all other officers, whether elected or appointed, shall continue to discharge the duties of their respective offices after their terms of service have expired, until their successors are qualified. By article 4, § 38, it is ordained that the manner of conducting and making returns of elections, of determining contested elections, and of filling vacancies in office, in cases not specially provided for by the constitution, shall be prescribed by law.
In obedience to the mandates of the constitution, the general assembly enacted the statute of April 22, 1852, ch. 71, p. 64, of Sessions Acts. By the first section of this statute it was enacted, amongst other things, that a sheriff should be elected on the fourth Thursday of May then next, and on the same day in every second year thereafter. By the eighteenth section of the statute, the term of the office of sheriff began on the first day of July next succeeding the election. By the nineteenth section the sheriff, before entering upon the discharge of his duties, was required to take the oaths prescribed by the Code of Virginia, and to give all such official bonds as were then required of him. Under this law John M. Drewry was elected sheriff of Norfolk county on the day named in 1852; and again elected on the same day in the year 1854; and having taken the oaths required by law, and given the bond in which the defendants here are sureties, and which is the subject of controversy in this case, on the first day of July 1854 he was inducted into office as sheriff, and entered upon the discharge of its duties. No successor of Drewry, in his office of sheriff, qualified so as to enter upon the duties of the office on the first day of July 1856, nor at any time before January 1st, 1857. Drewry continued to discharge the duties of his office in so far as to collect the commonwealth's revenue in his county for the year 1856, the subject of contest in this suit. In this state of things (if nothing else existed) it would seem that Drewry's term commencing July 1st, 1854, by its original limitation endured to the last day of June 1856, and thereafter, by the provision of the constitution, until his successor qualified.
It is alleged on behalf of the defendants that the action of the general assembly...
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