#### LOUIE M. GRAVES v. K. L. COPE, Sheriff, and H. M. DEADMON, L. L. SMITH and G. H. GRAHAM, Commissioners of DAVIE COUNTY.

(Filed 27 January, 1926.)

1. Sheriffs — Taxation—Statutes.

Under the various general statutes relating to the collection of taxes by the sheriff, requiring the collection according to copy of tax list delivered to him, C. S., 7930; the power of the county commissioners as to releasing, etc., certain persons, O. S., 7976; his duty to immediately collect, C. S., 7992; the year given in which to settle, C. S., 7998; the power of sale given him, C. S., 8006, 8010, and the power to attach property, C. S., 8004; the time fixed for settlement, O. S., 8049; and the duty *113to sue Mm in case of Ms default, 0. 8051: *Hel&,*the sheriff and his bondsmen are liable for the full amount on the tax list given to him, except certain specific deductions allowed by law.

S. Same — Delinquent Taxes — Tender to Successor — Sheriff—Mandamus.

A sheriff being liable for the collection of all taxes upon the list given him by statute, a tender by the delinquent taxpayer of the amount due to the sheriff’s predecessor as tax collector, is properly refused, and a mandamus will not lie to compel the present incumbent to receive them.

3. Same — Public Local Statutes.

Where a public-local law on the subject applying to a particular county cannot be construed as authorizing it, a mandamus will not lie to compel the sheriff of the county to accept delinquent taxes due to his predecessor in office, and remaining uncollected.

4. Mandamus — Case Agreed — Chambers—Questions for Court.

Where the question of mandamus to compel a sheriff to accept unpaid taxes by a delinquent to the defendant sheriff’s predecessor in office, upon a case agreed, there is no issue of facts for a jury, and the matter may be heard and determined by the judge at chambers.

5. Same — Statutes—Service of Summons.

An order of mandamus issued to a public officer, sheriff in the present case, may not lawfully be issued (except where the relief sought is a money demand), unless ten days have elapsed between the service of the summons and the signing of the order.

Appeal by defendants from order of *Long, J.,*at chambers, dated 2 January, 1925, continuing order of *Finley, J.,*dated 15 December, 1924, for hearing at next succeeding term of Superior Court of Davie County for trial of civil actions.

Application for writ of mandamus, requiring defendant, K. L. Cope, sheriff of Davie County, to accept from plaintiff, a resident and taxpayer of said county, a sum of money tendered by him in payment of taxes due said county for years 1922 and 1923.

On 15 December, 1924, Judge Finley signed an order, requiring defendant, as sheriff of Davie County “to collect the bach taxes due said county by taxpayers thereof, including the taxes due said county by the petitioner in this cause,” and directing that “a copy of this order, together with the petition and summons be served on defendants, and that they be notified to appear before Hon. B. F. Long, judge holding the courts of the Seventeenth Judicial District, on 26 December, 1924, at Statesville, North Carolina, and show cause why this order should not be made permanent.”

Pursuant to said order, defendants appeared before Judge Long and filed answers to the petition; the cause was heard by Judge Long, upon a statement of agreed facts, and on 2 January, 1925, Judge Long signed *114an order, continuing tbe order of Judge Finley for bearing at tbe next succeeding term of tbe Superior Court of Davie County for tbe trial of civil actions.

Defendants excepted to tbis order and appealed therefrom to tbe Supreme Court.

*Walter B. Broclc for plaintiff.*

*A. T. Grant, Jr., and Grier & Grier for defendants.*

Connor, J.

Tbe only question presented by tbis appeal is wbetber tbe sheriff of Davie County has tbe right and wbetber it is bis duty to collect taxes due tbe county of Davie assessed for years preceding tbe year in which bis term of office began, which were not collected by bis predecessor whose term of office included tbe years for which tbe taxes were assessed. Defendant, K. L. Cope, was elected sheriff in November, 1924, and was duly inducted into said office on tbe first Monday in December thereafter. On 13 December, 1924, plaintiff tendered to said K. L. Cope, sheriff, tbe sum due by him for taxes for tbe years 1922 and 1923, and demanded bis tax receipts therefor. Defendant declined to accept said sum, contending that be bad neither tbe right nor tbe duty to collect taxes assessed for tbe years 1922 and 1923 and not collected by bis predecessor. Roy M. 'Walker was sheriff of Davie County for tbe term beginning on 1st Monday in December, 1922, and ending on 1st Monday in December, 1924; tbe tax lists for said years were delivered to him on or before 1st Monday in October of said years, as required by statute. He failed to collect taxes due by plaintiff as shown by said list. His term of office expired on tbe 1st Monday in December, 1924, when defendant, K. L. Cope, pursuant to bis election in tbe preceding November, duly qualified as sheriff for tbe term beginning on said date.

It is tbe duty of tbe board of commissioners of each county to cause tbe register of deeds to make out annually two copies of tbe tax list for each township in said county; one of said copies shall be delivered to tbe sheriff of said county on or before tbe first Monday in October of each year. Tbe clerk of tbe board of commissioners shall endorse on tbe copies delivered to tbe sheriff an order to collect tbe taxes therein mentioned and such order shall have tbe force and effect of a judgment and execution against tbe real and personal property of tbe persons charged with taxes as shown in said lists. C. S., 7930; Public Laws 1923, cb. 12, sec. 76; Public Laws 1921, cb. 38, sec. 83. Tbe board of commissioners has no power to release, discharge, remit or commute any portion of tbe taxes assessed and levied against any person or property within its jurisdiction for any reason whatever. C. S., 7976. All taxes are due on tbe first Monday in October of each year, and it is tbe duty of tbe sheriff to whom tbe tax lists, endorsed by tbe clerk, *115are delivered, to proceed immediately to collect same. 0. S., 7992. Tbe sheriff and in case of bis death, the sureties on his bond, shall have one year and no longer, from the day prescribed, for his settlement and payment of taxes due the State, to finish the collection of all taxes. 0. S., 7998. In order to enforce collection the sheriff may first levy upon and sell the personal property, and second, if sufficient personal property cannot be found, it shall be his duty to sell the real estate of the taxpayer. 0. S., 8006, 8010. If any poll tax or other tax shall not be paid within sixty days after same is due, it shall be the duty of the sheriff if he can find no property of the person liable sufficient to satisfy the same, to attach any debt, or other property incapable of manual delivery, due or belonging to the person liable, or that may become due before the expiration of the calendar year, and the person owing such debt or having such property shall be liable for such tax. C. S., 8004.

On or before the first Monday in February in each year, the sheriff shall account to the county treasurer or other lawful officer, for all taxes due the county for the fiscal year; C. S., 8048. The sheriff shall be charged with the sums appearing by the tax list as due for county taxes and shall be allowed to deduct therefrom all insolvents and uncollectible poll taxes and also the amount of county tax on lands bid off by the county and costs and fees for making sale of lands for collection of taxes; provided, that a majority of the board of commissioners may extend the time for collection and settlement of taxes due the county not later than 1 May in the year following that in which the taxes are levied, C. S., 8049. Upon failure of the sheriff to account with the county treasurer and auditing committee, as provided by statute, it shall be the duty of the county treasurer, or if he neglects or refuses to perform such duty, it shall be the duty of the chairman of the board of county commissioners to cause an action to be brought in the Superior Court of the county on the bond of the sheriff, against him and his sureties, to recover the amount owing by him and the penalty prescribed by statute, O. S., 8051.

It must be conceded that under the statutes of this State relative to the collection of taxes the sheriff to whom a tax list is delivered is liable to the county for the total amount shown to be due thereby and that the only deductions that may lawfully be made therefrom are amounts charged in said lists which are lawfully allowed as insolvent and un-collectible taxes, the amounts levied and assessed as taxes upon lands which have been bid off, at tax sales, by the county, and the commissions and fees, if any, allowed by law as compensation for his services. *Comrs. v. Wall,*117 N. C., 377.

It is contended, however, that by virtue of the statute which provides that the sheriff of Davie County shall receive an annual salary, payable monthly, for his services, and that he shall not retain the commissions *116.provided by statute, be is relieved of tbe duty and is without power to collect any taxes after tbe expiration of bis term of office, and tbat taxes not collected by him must be collected by bis predecessor.

Tbe statute relative, to tbe compensation of tbe sheriff of Davie County, in force and effect from and after first of March, 1921, and applicable to tbe present sheriff and bis predecessor, to whom tbe tax lists for tbe years 1922 and 1923 were delivered, is chapter 84, Public-Local Laws 1921, as amended by chapter 355, Public-Local Laws 1923. Tbe only effect of tbe amendment was to reduce tbe salary of tbe sheriff from $2,500 to $2,200. Chapter 257, Public-Local Laws 1917, relied upon by tbe plaintiff, was repealed by section 15 of chapter 84, Public-Local Laws 1921. Section 13 of said chapter 257, provides tbat “at tbe expiration of tbe term of office of any person bolding tbe office of sheriff of Davie County, be shall be required to turn over to tbe incoming officer all books, papers and accounts, showing uncollectible taxes, licenses and all unfinished business of bis said office, and on and after tbe date when tbe newly elected officer shall give bond and be inducted into office, be shall perform all tbe duties of said office of sheriff.” This provision is not included in chapter 84, Public-Local Laws 1921; it is not applicable to either tbe present sheriff or to bis predecessor. There is no provision in tbe statute applicable to either which relieves tbe latter from liability for tbe tax lists delivered to him during bis term of office, or which makes it tbe duty of tbe former to collect taxes which bis predecessor has failed to account for as required by law.

There was error in declining tbe motion of defendants tbat tbe application for tbe writ of mandamus be denied. Tbe cause was beard upon a statement of facts agreed. There was, therefore, no controversy as to tbe facts. Indeed, there were no issues of facts raised by tbe pleadings, requiring submission to a jury. Tbe summons was properly returnable before tbe judge of tbe Superior Court, at chambers. He bad jurisdiction to bear and determine tbe action, both as to law and fact. Tbe motion for a continuance to tbe next term should have been denied. C. S., 868. *Lenoir County v.*Taylor, 190 N. C., 336.

Tbe order signed by Judge Finley was erroneous, for tbat although tbe summons was properly returnable before him as judge of tbe Superior Court, at chambers, tbe relief sought not being tbe enforcement of a money demand (C. S., 867 and 868), ten days bad not • elapsed between tbe service of tbe summons and complaint and tbe signing of tbe order. A writ of mandamus can be issued by tbe judge of tbe Superior Court only after service of summons and complaint, and after tbe expiration of not less than ten days. There was error in tbe order signed by Judge Long for tbat upon tbe statement of agreed facts, tbe application should have been denied.

Reversed and dismissed.