Ray v. . Horton , 77 N.C. 334 ( 1877 )

The plaintiff instituted this action for delivery of a yoke of oxen which had been seized by the defendant, as sheriff of said county, to satisfy an execution for taxes alleged to be due by the plaintiff. (335) The defendant proceeded under an act of Assembly authorizing him to collect taxes in arrear, and upon the case agreed his Honor gave judgment in favor of the defendant, and the plaintiff appealed. From the case agreed it appears that the defendant was sheriff of Watauga County for the years of 1870-1-2-3, and failed to collect all the taxes for those years.

By Laws 1874-75, ch. 45, ratified 19 December, 1874, he was authorized and allowed to collect all taxes in arrear and still due for those years, with all the powers which belonged to him as sheriff for said years. In this act there is no limitation as to time. By an act ratified on the same day (chapter 47) all sheriffs, collectors, etc., are authorized to collect arrears of taxes for the years 1872-3-4 under such rules as are now (then) prescribed by law for the regular collection of taxes, with a limitation (section 4) on this power to 31 December, 1875.

By the machinery Act of 1873-74 (ch. 133, sec. 35) sheriffs and other accounting officers are required to settle and pay their public tax account on or before the first Monday in December in each year; and by section 44 they shall have one year, and no longer, from the day prescribed for settlement and payment to finish the collection of all taxes; and similar provisions are in the Machinery Act of 1874-75, ch. 184.

By an act (1873-74, ch. 150) the defendant was allowed until 1 July, 1874, to make his final settlement with the county treasurer.

On 29 July, 1876, the defendant seized the plaintiff's property for said taxes under said act of 1874-75, ch. 45, and the plaintiff insists (336) that defendant's authority to do so had ceased, but the defendant says he is not limited in time by the act first above mentioned.

We have cited these several acts to show that the Legislature intends a certain day in all instances for settlement of taxes by sheriffs and tax collectors, and a certain time within which they may be collected from the citizens, and we think any other course in these two respects would be very bad policy.

The defendant by neglecting to collect the taxes at the time they were due lost his right to do so, although he was bound to make his settlement, and by said act his right is restored as a favor, and it does not look well for him to claim more privilege now than he had before he was guilty of negligence. It is true, the plaintiff should pay his taxes, but we think it would be dangerous for the Legislature to extend this privilege indefinitely to tax collectors.

When the defendant accepted the indulgence in the act of 1874-75, ch. 45, "with all the powers which belonged to him as sheriff," we think he accepted it "under such rules and regulations as were prescribed by law for the regular collection of taxes," as was declared in chapter 47 above, and passed on the same day; and one of these regulations was that he should have one year, and no longer, from the day prescribed for settlement to finish his collections (ch. 133, sec. 44), and his day for settlement had long since passed; but we find that the Legislature had extended his day of settlement to 1 July, 1874. Laws 1873-74, ch. 150.

According to this view, his authority ceased 1 July, 1875; and under this act (chapter 45) it ceased 19 December, 1875; and if we look to the simultaneous act (chapter 47) for guidance, it ceased 31 December, 1875.

We therefore think the defendant was guilty of a trespass on said property.

(337) Let judgment be entered here for the plaintiff for the amount agreed and for costs.

PER CURIAM. Judgment accordingly.