The defendants were merchants who had done business in New Bern as partners, from 1863 to 1866, and in January, 1866, they refused to render any statement of their business during 1865, to one Harper, who demanded the same as sheriff of Craven. It appeared that Harper was provisional sheriff, and had given bond as such at the time of his appointment in July, 1865, but had not executed a bond as required by the ordinance. *Page 31
Other questions were raised as to the power of the State to impose these taxes upon merchants who did business throughout 1865, in New Bern, but the opinion of the Court renders it unnecessary to state the facts in connection with this matter.
The court below charged the jury that, if they believed the evidence, the defendants were guilty. There was a verdict of guilty and judgment accordingly, from which the defendants prayed an appeal. There were several interesting and important questions very ably discussed in this case. But it is unnecessary, and so would be improper to decide them, because it appears that, assuming every other question to be in favor of the State, the person who (12) demanded the tax list from the defendants was not authorized to do so, and, therefore, of course, it was not a crime in them to refuse.
The ordinance of the convention entitled "An Ordinance to Provide Revenue for the Year 1865," ratified 18 October, 1865, provides (sec. 23), that the provisional sheriffs shall assemble the magistrates of their respective counties, and enter into bonds, and "thereupon such sheriffs are empowered to collect the taxes imposed by this ordinance: Provided, that if such persons referred to as acting sheriffs refuse or decline to enter into the bonds required, then, and in that event, the justices may appoint other persons," etc. It is evident that the convention did not mean to intrust the provisional sheriffs with the collection of the taxes, unless they gave new bonds. The provisional sheriff in this case did not enter into a new bond as required, and, therefore, he had no right to take tax lists or to collect the taxes.
It is true that the General Assembly, on 1 March, 1866 (ch. 19, sec. 1, Acts 1865-66), enacted that those who were sheriffs at the ratification of that act should collect the taxes under the ordinance, in those counties where the provisional sheriffs had not renewed their bonds. But that does not affect this case, because the refusal of the defendants, for which they are indicted, took place in the January preceding the passage of the act.
His Honor charged the jury that, if they believed the evidence, the defendants were guilty. In this there was error. And for that error there must be a venire de novo.
PER CURIAM. Venire de novo.
Cited: S. v. Bell, post, 90. *Page 32
(13)