State ex rel. Elliott v. Perkins, 32 N.C. 333, 10 Ired. 333 (1849)

Dec. 1849 · Supreme Court of North Carolina

32 N.C. 333, 10 Ired. 333

THE STATE TO THE USE OF G. ELLIOTT, CHAIRMAN, &c. vs. J. Q. PERKINS, ADM’R AL.

Although the Chairman of the Board of Common Schools may not have been appointed on the day prescribed by the Statute, and although the bond he gives may not have been directed by the County Court, yet if he accepts, and acts under tiie appointment, he and his sureties are bound by the bond, as upon a common law bond.

The case of the State v. McAlpin, 4 Ire. 148, cited and approved.

Appeal from the Superior Court of Law of Pasquotank County, at the Spring Term 1849, his Honor Judge Manly presiding.

This was an action of debt brought ffy the plaintiff on a paper writing, purporting to be a bond, given by Perkins, as Chairman of the Board of Superintendants of Common Schools for the County of Pasquotank, to which William H. Davis was surety. The Board of Superintendants were regularly appointed by the County Court at September Term 1846 ; and on Friday the 9th of October following, they met in the Clerk’s office of said County, and appointed J. Q. Perkins their chairman, requiring him to enter into bond in the sum of $1500, with William H. Davis as his surety ; which is the paper writing now sued on, and which was filed with their Clerk. It is admitted, that Perkins and Davis signed the instrument, and handed it to the Clerk of the Board. It does not appear on the minutes of the County Court, that the Court required the Chairman to enter into bond, or named the penalty of the bond. It is in evidence further from the Clerk of the Court, that the Court did not, in his hearing, require the Chairman to give bond, nor did they instruct him to make any entry to that effect on the minute docket.

A reference was made in this case, and a balance of $613 71 was reported as due from the defendant, Perkins, as Chairman.

The defendants’ counsel resisted a judgment against the surety to the bond on the following grounds: First, that the appointment of the chairman by the Board was irregular, being made on Friday, the 9th of October, when the Act of’44 and ’45, ch. 36, sec. 3, requires it to be made on the first Tuesday in October, and, therefore, the surety is not responsible. Second, that, as the Couni y Court did not require the Chairman of the Board to give bond, and did not fix the penalty as required by Act of ’44 and ’45, ch. 36, sec. 25, the bond was irregularly taken, and was not, therefore, binding on the surety.

These objections were overruled by his Honor, and judgment was taken for the amount found to be due by reference, $613 71. Rule upon the plaintiff to show cause why a new trial should not be granted. Rule discharged. Defendants appealed to the Supreme Court.

A. Moore and Ilcaih, for the plaintiff.

Ehringhaus, for the defendants

Nash, J.

Every objection to the plaintiff’s recovery, raised in this case, is answered by the Court in the State v. McAlpin, 4 Ire. 148. It is there ruled, that, although a bond, executed by a public officer to the State for the discharge of public duties, is not taken in the manner or by the persons appointed by the law to take it, yet it will be good as a voluntary bond and bind the sureties. That was an action upon a sheriff’s bond, which was not taken according to the provisions of the Statute. The objections here are, that the appointment of the Chairman by the Board of Superintendants was irregular, because it was made on Friday the 9th of October ; whereas, by the act of 1844, it is required to be made on the first Tuesday of October; and, for the reason, that the County Court of Pasquotank had not required the Chairman of the Board to give any bond in any sum whatever. Admit, that, for these reasons, taken separately or conjointly, the bond given by the Chairman was not in accordance with the requirements of the act, and, therefore, is irregular; and that the appointment was irregu* lar. Still, the intestate, Perkins, accepted the appointment and acted under it, and the other defendants enabled him to do so by becoming his sureties for the faithful discharge of his duties. The act never intended, that the funds should pass into the hands of the Board without some security for its due and proper disbursement. With this view the bond before us was taken. If the act had been entirely silent as to the taking of any bond, still the one before us would be good as a common law bond. To suffer this defence to prevail on either ground taken, would be encouraging a fraud upon the State. The intestate, Perkins, acting under an authority duly authorised to make the appointment, is de facto Chairman of the Board, a public officer, and as such gives a bond to the State, “that he will well and truly execute the office of Chairman of the Board of Common Schools, and faith» fully discharge the trust reposed in him,” &c. One of the duties of his office or as a member of the Board, is to receive the money belonging to the Board, and to disburse it according to law. This is public money, money belonging to the State, and by her appropriated in the County of Pasquotank to a purpose the most beneficial to its citizens, the diffusion of education through all conditions of the people. “We do not, then,” (in the language of the Court in McAlpin’s case,) “look back beyond the .bond itself to see, whether the Chairman rightfully undertook the duties of the office.” Although the bond may-not have been given in the way directed, the State must be willing to take it as given, rather than have no security. The bond is a public bond given to the State for her use, and was duly accepted by the Board of Superinten* dants; and the assent of the sovereign must be inferred until the contrary is shown, and the sureties are bound.

We concur in the opinion given below.

Per Curiam.

Judgment affirmed.