#### TOWN OF CLAYTON and STATE OF NORTH CAROLINA on Relation of JOHN D. HENRY, v. N. CLYDE WALL, Individually and as Delinquent Tax Collector of TOWN OF CLAYTON, and NATIONAL SURETY CORPORATION.

(Filed 10 April, 1940.)

1. Taxation § 34—

Ordinarily, the nonpayment of taxes is not a criminal offense, and if a delinquent tax collector arrests a person in order to enforce the payment of a delinquent tax, the tax collector is not acting under color of his office but is acting beyond his official authority and therefore in his individual capacity.

*3662. Principal and Surety § 5a—

The surety on a bond of a delinquent tax collector is not liable for an arrest made by tbe collector in order to force tbe payment of a delinquent tax, since sucb act of tbe tax collector is not done under color of bis office and does not come within tbe condition of the bond that be should “well and truly perform all tbe duties of his said office.”

3. Same—

Tbe liability of tbe principal and surety on an official bond is to be determined by the language of tbe contract and cannot be enlarged beyond tbe scope of its definite terms, and tbe provision that tbe principal should “well and truly perform all the duties of his office” includes only acts done under *colore officii*and does not impose tbe obligation that tbe principal will commit no wrong nor do anything not authorized by law.

Appeal by plaintiff from *Grady, Emergency Judge,*at January Term, 1940, of JOHNSTON.

*Winfield H. Lyon and A. M. Nolle for plaintiff, appellant.*

*Alelí & Shepard for corporate defendant, appellee.*

Schenck, J.

This is an appeal by tbe plaintiff from judgment sustaining demurrer filed by tbe corporate defendant.

Tbe complaint alleges that tbe individual defendant, N. Clyde Wall, was duly appointed by tbe governing body of tbe town of Clayton collector of delinquent taxes, and executed and filed bis bond in tbe sum of one thousand dollars with tbe corporate defendant, the National Surety Corporation, as surety thereon; that said bond contained tbe following provision: “Tbe condition of tbe foregoing obligation is sucb that if tbe said principal shall well and truly perform all tbe duties of bis said office or position, and shall pay over and account for all funds coming into bis bands by virtue of bis said office or position as required by law, then this obligation shall be null and void, otherwise it shall be and remain in full forceand further alleges that on 7 September, 1939, when said bond was in effect, tbe plaintiff was arrested by tbe individual defendant, without any warrant, on tbe public streets of Clayton in view of divers persons, and was unlawfully, wrongfully, purposely, willfully, wantonly and in a bigb-banded manner, restrained of bis liberty, and forcibly made to accompany tbe individual defendant and tbe chief of police through tbe streets of Clayton to tbe city jail, and notwithstanding bis pleas that be be released, tbe individual defendant wantonly and maliciously forced tbe plaintiff to enter one of tbe iron cells of tbe city jail, in which be was locked up, restrained of bis liberty and confined, although be asked to know tbe cause of bis detention and that be be given a prompt trial for any alleged offense, and that be be allowed to give bond; that tbe individual defendant failed and refused to state any *367charge, or to show any warrant, or to allow any bond, or to have a speedy trial for any alleged offense; that later in tbe day of 7 September, 1939, tbe individual defendant informed tbe plaintiff that if be would promise to pay a stated amount from bis pay checks received from tbe WP A projects be would be released and discharged; and “that while tbe plaintiff was confined in tbe said city jail and under tbe control and custody of tbe defendant herein, and while tbe said defendant was unlawfully and willfully exacting, demanding and coercing tbe plaintiff into paying an alleged debt, and in order to oppress, embarrass, coerce, extort and wrest from tbe plaintiff bis salary to be earned and paid him in tbe future while working on WPA project, all of which is done by tbe said defendant, in order that be might collect a commission on taxes alleged to be due by tbe plaintiff; that tbe said defendant’s conduct herein was not warranted by law, was done in a bigb-banded manner in violation of tbe duties and authorities conferred upon him and in violation of tbe duties of bis said office and tbe terms of bis bond, and thereupon be committed a breach of bis bond.”

Tbe question presented for answer is: Does tbe complaint allege a breach of tbe condition of tbe bond, which reads: “. . . that if tbe said principal shall well and truly perform all tbe duties of bis office or position.” Tbe answer is in tbe negative.

It cannot be held, even by a most liberal construction, that “tbe duties of bis office or position” as delinquent tax collector authorized or contemplated that tbe individual defendant would or could arrest and imprison anyone in order to coerce tbe payment of taxes alleged to be due. Ordinarily, tbe nonpayment of taxes is not a criminal offense, and if a tax collector arrests and imprisons a tax delinquent in an effort to enforce payment of a tax be is not acting *colore officii,*but acting beyond bis official authority and therefore in bis individual capacity.

Tbe cases of *Kivett v. Young,*106 N. C., 567; *Warren v. Boyd,*120 N. C., 56; and *Price v. Honeycutt,*216 N. C., 270, relied upon by tbe appellant, are distinguishable from tbe case at bar in that in each of those cases tbe acts complained of were performed under color of office. In tbe *Kivett case, supra,*it was one of tbe official duties of tbe defendant, as register of deeds, to properly register all instruments filed with him for registration and bis failure to do so was held to be a breach of tbe provision of tbe bond to “at all times truly and faithfully discharge tbe duties of bis office.” In tbe *Warren case, supra,*tbe defendant was a constable and it was held that an allegation that be illegally and without authority of law arrested and imprisoned tbe plaintiff was an allegation of a breach of bis bond which provided for tbe “faithful discharge of all tbe duties devolving upon him as constable and according to law,” since tbe acts of tbe constable in making tbe arrest and imprisoning tbe *368plaintiff were “done by said official by 'virtue and under color of bis office.” Code 1883 (C. S., 354). In the case of *Price v. Honeycutt, supra,*it was held that tbe demurrer by the surety should have been overruled, since the allegation was that injury to the plaintiff was caused by a malicious and brutal assault upon him made by the individual defendant while making an arrest as sheriff, when the bond contained the clause prescribed for the official bond of a sheriff by C. S., 3930, namely, “and in all other things well and truly and faithfully execute the said office of sheriff during his continuance therein.” This for the reason that the act of the defendant in making an arrest was within the scope of his official duties as sheriff. C. S., 354.

In the case at bar the alleged arrest and imprisonment of the plaintiff by the individual defendant were not acts within the scope of his authority or duties as a delinquent tax collector, but were acts entirely foreign to and beyond even any apparent power or right vested in him as such tax collector, and were not contemplated by the corporate defendant, the surety, when it executed the bond.

The condition of the bond as written does not impose on the surety the obligation that the principal should do no wrong and should in all respects observe the law. The phrase “well and truly perform all the duties of his said office or position” obviously refers to the duties incumbent upon him as delinquent tax collector. The principal and his surety are liable under a contract expressed in definite terms and their liability cannot be carried beyond the fair meaning of those terms. The clause only binds the principal affirmatively to the faithful performance of the duties of his office or position and does not cover the case of an abuse or usurpation of power. There are no negative words that the principal will commit no wrong nor do anything unauthorized by law.

The judgment of the Superior Court is

Affirmed.