Colvard v. Board of Commissioners

95 N.C. 515

• Court: Supreme Court of North Carolina
• Decided: October 15, 1886
• Status: Published

Opinion

Ashe, J.,

(after stating the facts). We think there was error in the refusal of the. Court to give the instructions asked by the defendant. The plaintiff offered but one bond, and did not show the i’eceipts required by law. The Code, §2008, declares, that “no person shall be eligible to the office of sheriff, who theretofore lias been sheriff and hath failed to settle with and fully pay up to every officer the taxes which were due from him, nor shall any Board permit such former sheriff to give bond for or enter upon the duties of the office, until he has produced before the board the receipt, in full of every officer for such taxes.”

And it is required by §2078 of The Code, that the sheriff shall give three bonds, such as are prescribed in the section.

The plaintiff here had not complied with the requirements of either of these sections; and it was not, therefore, the duty of the defendants to induct him into office, and it was error in the Judge to refuse to give instructions to that effect when asked.

But aside from all this, suppose there was no error, how could judgment in this case avail the plaintiff ? Pie seeks to be inducted into office by virtue of the writ of mandamus, but what office? Why, that of sheriff for the term ending December the 4th, 1886. But that time has expired, and a new sheriff has been regularly elected for the term of two years from the 4th of December, 1886. A judgment, then, in favor of the plaintiff could not be followed by any practical results. If he ever had a right to the remedy he invokes, he has been so unfortunate as to lose it by the law’s delay.

- We are of the opinion for the last reason given, that the action should be dismissed, and it is so ordered.

Dismissed.