State v. Stedman
| Decision Date | 22 May 1906 |
| Citation | 54 S.E. 269,141 N.C. 448 |
| Parties | STATE et al. v. STEDMAN, Sheriff. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; Webb, Judge.
Controversy between the state and the board of commissioners of New Hanover against F. H. Stedman, sheriff. Submitted on an agreed statement of facts. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.
Acts 1905, p. 695, c. 590, § 91, declares that the sheriff and tax collector shall receive 5 per cent. on all taxes collected up to the sum of $50,000 and on all sums in excess thereof 2 1/2 per cent. commissions. Section 92 (page 696) declares that the auditor, in making the settlement of the amount due from the sheriff or tax collector aforesaid, shall deduct from the list returned 5 per cent. on "the amount collected." Held, that section 92 simply directs the duty of the auditor and prescribes the deduction he shall make, but does not increase the commissions to which the sheriff is entitled on taxes collected beyond those fixed by section 91.
Such part of section 92 (Laws 1905, p. 696, c. 590) as directed the deduction of 5 per cent. commissions on the amount collected was a mere inadvertence, and did not operate, as a repeal of the express provision for commissions in section 91 (page 695).
This was a controversy without action submitted to the court upon an agreed state of facts. The defendant, F. H. Stedman sheriff of New Hanover county, was duly elected sheriff of said county for a term of two years at the general election held in the month of November, 1904, and on the first Monday in December, 1904, duly qualified as such officer as required by law, and has filed with the board of commissioners of New Hanover county his bond in the sum of $100,000, as he was required to do, and that his term expires on the first Monday in December, 1906. That since said qualification and filing of said bond the defendant has acted, and is still acting, as sheriff in and for the said county of New Hanover, and is performing all of the duties of the said office, as provided for by law, and is entitled to all the emoluments thereof whatever the sum may be. That as such sheriff he is authorized, and it is his duty, to collect taxes for said county, and for the year 1905 he has collected state and county, school and special taxes amounting to $135,200. That the said plaintiffs have demanded of him a settlement of the taxes hereinbefore referred to as collected, and the said defendant agrees and offers to make a settlement thereof and offers to pay at any time the full amount of said collections, less 5 per cent. commissions on each and every sum which is collected as commissions for his service in making said collection, and no more. The plaintiffs offer to make settlement, but insist that a deduction of 5 per cent as commissions for sheriff's services in collecting said taxes be made on the total sum up to $50,000, and 2 1/2 per cent. made on all amounts in excess of $50,000, and no more. His honor rendered judgment that defendant was entitled to 5 per cent. commissions on $50,000 and 2 1/2 per cent. on the amount collected by him in excess thereof. Defendant appealed.
Rountree & Carr, for appellant.
The Attorney General, for appellees.
CONNOR J. (after stating the facts).
Chapter 590, p. 647, Acts 1905, provides:
Defendant contends that section 92 (page 696) is in conflict with section 91 (page 695), in that, while the first section fixes the commissions at 5 per cent. on $50,000 and 2 1/2 per cent on the excess thereof, the next succeeding section directs the auditor in settling with the sheriff to deduct the 5 per cent. on the whole amount. The point is also made, in the brief, that the rate of commission for...
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