Opinion
July Term, 1810.
1. The summary remedy against delinquent sheriffs, given by Laws 1808, ch. 21, applies as well to cases where the delinquent is out of office as where he is not; and also applies to arrearages due by the delinquent previous to the passing of the act.
2. The act is a beneficial one, and is to be liberally construed.
THIS was a motion made under Laws 1808, ch. 21, for judgment against the defendant for arrearages due from him as sheriff for 1807 and 1808. Two questions were made: (1) Whether the summary remedy given by that act applied to arrearages due before the passing of the act, and (2) whether this remedy could be enforced against a man whose sheriffalty had expired.
From Sampson.
The policy of the Legislature in giving a summary remedy against sheriffs is obvious. They considered that there was no necessity of going through all the forms of an ordinary suit against a man who had in his hands public money. Where an individual sues another, delay is frequently necessary to prepare for trial; but this is not the case with two persons, one acting as county trustee, the other as sheriff. As to the objection in this case, that the defendant is out of office, there is no good reason to support it. The question is not whether the defendant now be sheriff, but was he sheriff at the time the moneys now claimed of him came into his hands? He is in no worse situation, nor is the county trustee in any better, by his being out of office. This is not like the cases where remedies are given in a summary way by courts against their officers as such. There they proceed against them as their officers, forming part of the court, but moving in an inferior sphere. On this account it is that the judges, who have (501) the control over them, compel them in a summary way to do their duty. This is a power inherent in all courts. But the moment a man ceases to be an officer of a court he falls into the common mass of citizens, and is no longer amenable to it as an officer. The present defendant is not called upon by such a power. The law of the land has pointed out the mode of proceeding now in question, against him, as well as against all public delinquents. It is a matter of no consequence whether he be out of office or not.
As to the other objection, that the act which authorizes this proceeding passed in 1808, and that the defendant cannot be proceeded against under it for public moneys which came into his hands previous thereto, and that the remedy which the county trustee then had must be resorted to: it may be answered, that when an act of Assembly takes away from a citizen a vested right, its constitutionality may be inquired into; but when it alters the remedy or mode of proceeding as to rights previously vested, it certainly, in that respect, runs in a constitutional channel. Laws 1808, ch. 21, declares, "that the county trustees shall annually call upon the sheriffs of their respective counties for the payment of all moneys that may be in their hands due to the trustee, etc.; and if any sheriff shall fail to account, then, etc., to move for judgment against such sheriff, etc., ten days' notice being previously given, etc." This act does not alter the rights of the sheriff; it only alters the mode of proceeding against him. Surely, the Legislature have the right to do this. But it is said the act of 1808 created new penalties. If it did, the answer is, they are not sought to be enforced in this case. But, in truth, no new penalties are created; the act of 1795, which the act of 1808 was intended to amend, pronounced the same penalties against delinquent sheriffs. These acts are beneficial, and should be liberally construed. The motion for judgment against the defendant must be allowed.
Cited: Bank v. Davenport, 19 N.C. 48; Hill v. Kesler, 63 N.C. 446; Worth v. Cox, 89 N.C. 48.
(502)