Drainage Com'rs of Mattamuskeet Dist., in Hyde County v. Davis
| Decision Date | 05 October 1921 |
| Docket Number | 25. |
| Parties | DRAINAGE COM'RS OF MATTAMUSKEET DIST., IN HYDE COUNTY, v. DAVIS, SHERIFF. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Hyde County; Bond, Judge.
Controversy submitted without action between the Drainage Commissioners of Mattamuskeet District, in Hyde County, and Thos. D. Davis Sheriff. Judgment for defendant, and plaintiffs appeal. Modified and affirmed.
This is a controversy between the board of drainage commissioners of Mattamuskeet district, in Hyde county, and Thos. D. Davis sheriff of said county, submitted without action upon agreed facts. It is admitted that plaintiff is a duly constituted drainage corporation, and that defendant was sheriff of Hyde county during the years 1917, 1918, and 1919, and charged with the duty of collecting assessments for construction and maintenance of the drainage system levied in said drainage district. No controversy exists as to compensation for collecting assessments levied for payment of bonds issued for construction work, but it arises only with respect to commissions on the assessments levied annually for maintenance.
By chapter 509, Laws 1909, the State Board of Education, by virtue of its ownership of Mattamuskeet Lake and other lands near it, was authorized to join in the petition to establish the drainage district, the corporate name of which was "Board of Drainage Commissioners of Mattamuskeet Lake." Section 3. The Board of Education did join in the petition (Carter v. Com'rs, 156 N.C. 183, 72 S.E. 380), and subsequently sold to the Southern Land Reclamation Company (Carter v. Com'rs, supra; Caravan v. Com'rs, 161 N.C. 100, 76 S.E. 681; Gibbs v Com'rs, 175 N.C. 5, 94 S.E. 695; Mann v Mann, 176 N.C. 353, 97 S.E. 175).
The drainage district has issued bonds and levied assessments to maintain the district. No question is presented as to the legality of the bond issues or the maintenance assessments. The defendant, being the sheriff and tax collector of Hyde county, whose compensation is not fixed by salary, collected all these assessments for the years 1917, 1918, and 1919 gave bond for their collection, has paid the same to the treasurer of the county; his accounts have been audited, and for his services and responsibility he retained--and his act in this respect was approved by the court below--the commissions fixed by law, as he contends. It is admitted in paragraph 3 of the facts agreed that the defendant, as sheriff, collected the maintenance assessments and accounted for the same less his commissions. It is to recover these retained commissions that this action is brought. The contention of the plaintiff is that "no provision is specifically made for any compensation or commission to the sheriff for the collection of maintenance assessments, and that defendant is not entitled to any commission on this maintenance fund." The power to make the assessments is not denied; the obligation resting upon the sheriff to collect is not denied; nor is it denied that the sheriff's failure to collect would subject him to liability. The specific and only question involved here, and for the court's consideration, is: Was the sheriff of Hyde county entitled to receive commissions on collections of assessments levied exclusively for maintenance purposes by the commissioners of said drainage district for the years 1917, 1918, and 1919, and, if any, then what commissions? The sheriff has collected and paid to the treasurer of the county these maintenance assessments, less his commission. The plaintiffs insist that the sheriff is obliged to make these collections without compensation, and is suing to recover the commissions unlawfully retained by the sheriff.
The plaintiff, board of commissioners, contends that he was not entitled to such commissions. The defendant, sheriff, contends that he was entitled to 5 per cent. commissions. The court below held with defendant, and gave judgment accordingly. Plaintiffs excepted and appealed.
Spencer & Spencer, of Swan Quarter, and Small, MacLean, Bragaw & Rodman, of Washington, N. C., for appellants.
Mann & Mann, of Swan Quarter, and Manning, Bickett & Ferguson, of Raleigh, for appellee.
WALKER, J. (after stating the facts as above).
The Mattamuskeet drainage district was created and organized under chapter 442, Laws 1909. The provisions of chapter 509, Laws 1909, are not material here. After the completion of the improvement, it came under control of the board of drainage commissioners upon whom was expressly imposed the duty to keep it in good repair, for which purpose the Commissioners were authorized to "levy an assessment on the lands benefited * * * in the same manner and in the same proportion as the original assessments were made." Laws 1909, c. 442, § 29; C. S. § 5349.
It will be noted that in the General Drainage Act of 1909, c. 442, the first section which authorizes an assessment to provide funds for any work in the district, is section 29, giving the power to levy assessments for maintenance, "in the same manner and in the same proportion as the original assessments were made. It is clear that the expression "original assessments" refers to those made for construction work, or to pay bonds issued for construction work, as provided for in sections 31, 32, 34 of chapter 442, Acts 1909. These sections provide for collection of assessments for construction work "by the same officers as the state and county taxes are collected." Laws 1909, c. 442, § 34. The Legislative Act of 1909 is silent on the subject of compensation to the sheriff or tax collector charged with the duty of collecting these assessments.
That the Legislature could impose the duty to collect this fund upon the sheriffs and tax collectors without permitting them to charge a commission thereon seems to have been settled. Commissioners v. Stedman, 141 N.C. 448, 54 S.E. 269; Fortune v. Commissioners, 140 N.C. 322, 52 S.E. 950. It is evident that in the legislative mind was the purpose and intent that this beneficent law designed to reclaim vast areas of naturally fertile lands for the uses of mankind, and to promote the health of the people, should be economically administered, and that the amount to be raised by assessments should be available for the public benefit, planned, and contemplated, without diminution by incidental expenses in payment of commissions to existing or future office holders, for whom already was provided compensation sufficient to allure. The law being written as recited, sheriffs and tax collectors were without express authority to have deducted any commissions from these assessments, but in the act can be found clearly implied authority to this effect. The Legislature of 1911 amended the General Drainage Act of 1909. Laws 1911, c. 67. The act of 1911 does not change section 29 of chapter 442, Acts 1909; but does strike out sections 31, 32, 33, and 34 of the act of 1909, and insert new sections in lieu thereof. Acts 1911, c. 67, §§ 8, 9, 10, 11, and 12. These new sections provide for the collection of assessments for construction, or the payment of principal and interest on construction bonds issued, and direct that these assessments shall be collected by the same officers and in the same manner as state and county taxes are collected. Acts 1911, c. 67, §§ 8, 12.
Next in order comes section 13 of the act of 1911, for the first time making express provision for any commission or fee, as follows:
The plaintiffs contend, and we think properly so, that the enactment of the law of 1911 (section 13, c. 67) leads to the conclusion that it was the legislative intent that no longer, if before it had been relied on, should there be any warrant for the contention that the provisions of section 5245 of the Revisal of 1905 (now section 8042 of Consolidated Statutes) applied to drainage assessments, entitling sheriffs or tax collectors to 5 per cent. commissions on assessments collected, but that the compensation to be paid for collection and disbursement should be limited to that prescribed in the act of 1911, to wit: That, for collecting the larger assessments required for construction work, the sheriff should receive 2 per cent. of the amount collected, and that for disbursing the proceeds of a bond sale the treasurer should receive a commission of 1 per cent. But we consider the inference as clear that it was the legislative intent that, for collecting the small annual assessments for maintenance, there should be commissions allowed, though not as much as 5 per cent. But more of this hereafter.
The judgment rendered decrees that defendant, Davis, as tax collector for Hyde county, is entitled "out of the funds collected by him (from assessments) for maintenance of the...
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