Hudson v. McArthur

• Decision Date: 04 May 1910
• Citation: 67 S.E. 995,152 N.C. 445
• Parties: HUDSON et al. v. McARTHUR et al.
• Court: North Carolina Supreme Court

67 S.E. 995

152 N.C. 445

HUDSON et al. v. McARTHUR et al.

Supreme Court of North Carolina

May 4, 1910

Appeal from Superior Court, Sampson County; Guion, Judge.

Action by J. H. Hudson and others against V. J. McArthur and others county commissioners, and Geo. E. Butler, county attorney. A demurrer to the complaint was overruled as to the county commissioners and sustained as to the county attorney, and the county commissioners appeal. Reversed.

The action was originally brought by J. H. Hudson, "on behalf of himself and all other bondsmen of A. W. Aman, who will come in and aid in the prosecution." Later, by an order made at February term, 1908, Levett Warren, J. H Turlington, and C. H. Fisher were made parties plaintiff, and A. W. Aman was made a party defendant. V. J. McArthur, A. T Herring, and Geo. Highsmith composed the board of commissioners of Sampson county, and Geo. E. Butler was the county attorney. A. W. Aman, the other defendant, was the sheriff of the county and acting treasurer. The plaintiffs were the sureties on his official bond. They alleged that Aman, while sheriff, embezzled the county funds, and each of the plaintiffs was compelled to pay $418.50, except J. H Turlington, who paid $94 additional. The particular breaches of duty by the defendant commissioners, for which the plaintiffs seek in this action to recover from them, as individuals, the several sums paid by them as sureties on the sheriff's bond, are thus stated in the complaint:

"(a) The plaintiffs are informed and believe, and upon such information and belief aver, that the defendant commissioners negligently failed to require of said A. W. Aman, sheriff and treasurer as aforesaid, the settlements required by statute in February, May, and September, for the years A. D. 1905 and 1906, respectively.

"(b) The plaintiffs are informed and believe, and upon such information and belief aver, that the said defendants, V. J. McArthur, A. T. Herring, and George Highsmith, the board of county commissioners, as aforesaid, of Sampson county, were required to demand of the said sheriff and treasurer, A. W. Aman, the first Monday in December, 1904, before they allowed him to re-enter the duties of his said office, his receipts in full for the taxes which he had collected, and which he should have collected, for Sampson county for previous years, as set out in Revisal 1905, § 2812, and that they failed to do so, but, on the contrary, allowed said A. W. Aman, sheriff and treasurer as aforesaid, to re-enter upon the duties of his said office, and to renew his said bond before he had produced before the said board the receipt in full for taxes which he had, or should have collected.

"(c) That said A. W. Aman, sheriff and treasurer as aforesaid, failed to collect and settle the taxes of said county, placed in his hands to collect, for the year 1905, or produce his receipts for the same, before he received his tax list from the said board to collect the taxes for the year 1906, and the said defendant board permitted said Aman to receive and collect the taxes for the year 1906 for said county before the said A. W. Aman, sheriff and treasurer as aforesaid, had settled the taxes for the previous year, or had produced his receipts for the same, as provided by section 5241 of the Revisal of 1905 of North Carolina; and the said board of commissioners and the defendants V. J. McArthur, A. T. Herring, and George Highsmith, as members thereof, failed and neglected to appoint a tax collector as provided for by said section 5241 of the Revisal of 1905 of North Carolina, and permitted said A. W. Aman to receive the tax list for said Sampson county for the year 1906, and to collect the taxes for said county for that year without requiring him to perform his duties as aforesaid, as required by law, and failed and neglected to appoint a tax collector, as set out above.

"(7) That some time prior to the first Monday in September, 1906, one O. F. Herring, one of the sureties on said Aman's bond with these plaintiffs, warned the defendants V. J. McArthur, A. T. Herring, and George Highsmith, the board of county commissioners, through their chairman, V. J. McArthur, not to turn over the tax books for Sampson county for the year 1906 to said A. W. Aman until a full and complete settlement was had by said commissioners with said defendant, A. W. Aman, for all arrears of taxes; that he had heard that A. W. Aman was financially embarrassed and behind in his accounts with the county, and that, as one of the bondsmen, he objected to the tax books of said county for the year 1906 being turned over to said A. W. Aman before a full settlement was had.

"(8) That notwithstanding said warning the defendants, commissioners, negligently failed to make a proper or full settlement with said A. W. Aman on the first Monday in September, 1906, and carelessly and negligently, and contrary to their duty as required of them by law, as the plaintiffs are informed and believe, and upon such information and belief aver, turned over the tax books of Sampson county for the year 1906 to said A. W. Aman, sheriff and treasurer as aforesaid, and allowed him to collect said taxes without requiring of him a full settlement for the taxes of the previous year, and when he was at that time behind in his accounts with the said county, as the plaintiffs are informed and believe. Plaintiffs allege upon information and belief that, at the said meeting of the board of commissioners of the defendants V. J. McArthur, A. T. Herring, and George Highsmith, the first Monday in September, 1906, to settle with the said A. W. Aman, sheriff and treasurer as aforesaid, the said defendant commissioners ascertained the amounts that said A. W. Aman was behind and was due the county, and did not require him to exhibit the money received from the collection of taxes, but looked at the tax books in his hands then uncollected, and received those uncollected tax receipts then in said Aman's hands, in settlement of the balances said Aman was then due the county as sheriff and treasurer as aforesaid, and left those said uncollected tax receipts for previous years in the hands of said A. W. Aman, sheriff and treasurer as aforesaid, and upon that kind of alleged settlement, which the plaintiffs say was negligent and careless, turned over to said Aman for collection the tax books for Sampson county for the next succeeding year, to wit, the year 1906."

The defendant commissioners and Butler demurred to the complaint upon various grounds, and the demurrer was sustained as to Butler, from which there was no appeal. It was overruled as to the commissioners, and they appealed.

F. R. Cooper and J. D. Kerr, for appellants.

Faison & Wright, for appellees.

MANNING J.

Passing the question as to the misjoinder of the parties plaintiff and the joinder of defendant Aman as a party defendant--the plaintiffs having each a separate, and not a joint, cause of action against the defendant commissioners, if they have any cause of action at all, and the cause of action against Aman being distinct from, and arising from, totally different facts from, that alleged against the defendant commissioners--we proceed to consider if the complaint states facts sufficient to constitute a cause of action in favor of any one, or all, of the plaintiffs against the defendant commissioners. The argument addressed to us in support of his honor's ruling is rested upon sections 2812, 5241, 5250, Revisal 1905, that these sections impose mandatory duties upon the boards of county commissioners, and that defendants violated these duties in the manner of making the settlement with Aman, the sheriff, and these violations of duty directly caused the loss to plaintiffs, to recover which they have brought this action against the defendants. The liability of the board of commissioners for a failure to comply in good faith with sections 2812, 2813, Revisal 1905, is declared by section 2814, Revisal 1905, to be "for all loss sustained in the collection of taxes, on motion to be made by the solicitor of the district." The evident purpose of the section is to further protect and safeguard the public revenue, and to further assure its honest collection and application by subjecting the commissioners to liability if they fail to require the proper bonds from the collecting officer, and, this is further enforced and somewhat extended by section 313, Revisal 1905, which provides that: "Every commissioner who approves an official bond, which he knows to be, or which by reasonable diligence he could have discovered to have been, insufficient in the penal sum, or in the security thereof, shall be liable as if he were a surety thereto and may be sued accordingly by any person having a cause of action on said bond." The bond of the defaulting sheriff in the present case was not deficient either in the penal sum, or in the security thereof; the plaintiffs as his sureties have made good his default, and paid the money to the proper authorities. The obligation of the bond has been met, and the bond has been discharged. This action is not on the bond. If any one of the defendants permitted the defendant Aman, on the first Monday of December, 1902, or on the first Monday of December, 1904, these being the first Mondays in December next after his election, and he being a former sheriff, to give his bonds, or re-enter upon the duties of his office, until he had produced before the board the receipt in full of every such officer for taxes which he had or should have collected, then such commissioner, under section 3590, Revisal 1905, was guilty of a misdemeanor, and also liable to the penalty of $200 for each offense, "to be paid to any person who shall sue for the same." Bray v. Barnard...