
    STATE ex rel. MORGANTON GRADED SCHOOL et al. v. C. MANLY McDOWELL.
    (Filed 13 December, 1911.)
    1. Sheriffs — Collection of Taxes — Balance Due — Counterclaim.
    In an action to recover from a sheriff a balance of taxes collected by him and due, a counterclaim or debt of any kind, however valid, cannot be sustained.
    2. Same — Mandamus—Procedure.
    A graded school and county commissioners sued the sheriff for taxes collected which should have been paid the school, and the defendant set up a counterclaim that for certain previous years the county commissioners had wrongfully appointed another to collect these taxes, and that the commissions thus due him should be deducted from plaintiff’s claim: Held, (1) the sheriff’s remedy was by mandamus against the county commissioners at the time alleged, to have the tax books placed in his hands by the couhty commissioners, and an injunction to prevent the payment of the commissions to the collector alleged wrongfully to have been appointed, until his right had been decided ; (2) or by suit against the collector alleged to have been wrongfully appointed, for the commissions paid to him.
    3. Sheriffs — Commissions on Taxes — Speedy Trial — Procedure.
    The right to a speedy trial by a sheriff suing for commissions on taxes collected by one wrongfully appointed by the board of county commissioners is secured under Revisal, 833; and his interests are protected by the undertaking required by Revisal, 835.
    4. Same — Trusts and Trustees — Bar to Action..
    The taxpayers are not required to pay commissions twice for the collection of taxes because the wrong party discharges the duties of collector, the remedy of the one wrongfully deprived being against the intruder who has thus deprived him of his commissions, in an action for money had and received to his use (Revisal, 844), and his failure to do so in his action to recover the office is a bar to an independent action therefor.
    5. County Commissioners — Sheriff’s Commissions — Official Capacity —Counterclaim—Cross-actions—New Matter.
    A sheriff in his answer to an action by a graded school and the county commissioners for balance of taxes collected by him, due and not paid over, may not set up a counterclaim for commissions on taxes for previous years collected by one wrongfully appointed for the purpose by the county commissioners, for this is a cross-action against the plaintiffs for their alleged wrongful act as county commissioners in their official capacity, which he could not maintain if brought directly.'
    Appeal from Long, J., at October Term, 1911, of Bueile.
    Tbe facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.
    
    
      8. J. Ervin for plaintiff.
    
    
      Avery & Avery for defendant.
    
   Glare, O. J.

This was an action against defendant, the former sheriff of Burke, upon his official bond to recover a balance due for taxes collected by him for the Morganton graded school for 1905 and 1906 under Laws 1903, ch. 455.. The defendant set up as a counterclaim that he was illegally and wrongfully deprived by the board of county commissioners of the right to collect taxes for said graded school for the years of 1903 and 1904, the county commissioners having appointed John B. Holloway and F. O. Berry to collect the taxes for the said graded school for said years 1903 and 1904, and had allowed them the commission for collecting the same, amounting to. $295, which sum he asked that he be allowed “as a set-off and counterclaim” on the taxes due by him for the years 1905 and 1906.

Such counterclaim cannot be sustained, for three reasons:

1. As against the balance due by the defendant as sheriff for taxes in his hands collected for the years 1905 and 1906, no counterclaim or debt of any kind, however valid, can be sustained. This has been so fully discussed that it is only necessary to cite a few of the cases: Wilmington v. Bryan, 141 N. C., 679; Guilford v. Georgia Co., 112 N. C., 37; Gatling v. Commissioners, 92 N. C., 536; Cobb v. Elizabeth City, 75 N. C., 1; Battle v. Thompson, 65 N. C., 406. In Wilmington v. Bryan, 141 N. C., 675, Brown, J., says: “No counterclaim is valid against a demand for taxes,” citing Gatling v. Commissioners, supra. In same case Walicer, J., in his dissenting opinion (as to other points), concurs as to this proposition, and says: “Neither a taxpayer nor a sheriff can plead a set-off in a suit against him for taxes due and owing. . . . This is so upon tbe ground of public policy. To permit a taxpayer or an officer charged with tbe collection of taxes to set up an opposing claim against tbe State or tbe city might seriously embarrass tbe Government in its financial operations by delaying tbe collection of taxes to pay current expenses,” citing tbe cases above quoted.

2. Tbe defendant is not entitled to be allowed tbe counterclaim for tbe further reason that if be was wrongfully deprived of tbe right to collect tbe graded-school taxes for 1903-4, it was bis duty to have taken proper proceedings for a mandamus to have tbe tax list placed in bis bands by tbe county commissioners and have asked for an injunction to prevent tbe payment of commissions thereon to Holloway and Berry until bis right to tbe same bad been decided. If be did not choose this remedy, bis recourse was to sue Holloway and Berry for tbe commissions which be alleges has been wrongfully paid to them. Revisal, 833, expedites tbe trial of actions of this nature by giving them precedence over all other actions, civil and criminal, and by requiring trial at tbe return term of tbe summons if thirty days off, and Revisal, 835, requires tbe defendant before answering or demurring to file an undertaking in an amount to be fixed by tbe judge, not less than $200,' to secure tbe fees and emoluments if the plaintiff shall recover tbe office.

In this case tbe defendant sheriff did not bring such action,' but asserts bis right to tbe fees for duty which was performed not by himself, but by Holloway and Berry, without legal objection by him, and this after having slept on bis rights for four years. Tbe taxpayers are never required to pay two salaries, or two sets of commissions, because the- wrong party discharges tbe duties of an office. Any other rule would be open to grave abuse and has never been recognized in a single instance in this State. Indeed, Revisal, 844, provides that tbe claimant of an office should recover compensation in damages for tbe loss of tbe fees and emoluments of tbe office from tbe intruder who bad received tbe same, in an action for money bad and received to tbe relator’s use (McCall v. Webb, 135 N. C., 361), and bis failure to do so in tbe action to recover tbe office is a bar to an independent action.

3. Tbe defendant in setting up tbis “new matter and by way of counterclaim,” as be says in bis answer, is in effect bringing a cross-action against tbe plaintiffs for tbeir wrongful act, as county commissioners in tbeir official capacity, wbieb be could not maintain if brought directly, and therefore be cannot bring it by way of counterclaim. Hull v. Roxboro, 142 N. C., 455; Fisher v. New Bern, 140 N. C., 510; Barger v. Hickory, 130 N. C., 550; Jones v. Commissioners, ib., 451; Pritchard v. Commissioners, 126 N. C., 912; Moffitt v. Asheville, 103 N. C., 237; Hannon v. Grizzard, 99 N. C., 161; Manuel v. Commissioners, 98 N. C., 9; White v. Commissioners, 90 N. C., 439.

If, as was pointed out by Pearrson, C. J., in Battle v. Thompson, 65 N. C., 406 (quoted by Walker, J., in Wilmington v. Bryan, 141 N. C., 680), tbe defendant bad actually-collected tbe taxes for tbe graded school for 1903-4, and was being sued for tbe balance of tbe uncollected taxes for those years, it may be that bis claim for such commissions might “be allowed in diminution of tbe amount to be recovered . . . but it would be on tbe ground that tbe claim was in tbe nature of a payment or a credit, to wbieb tbe defendant is entitled, and tbe demand of tbe State is in fact only for tbe balance.” But here tbis is a counterclaim, and. is properly so styled in tbe defendant’s answer, for it is not a claim for commissions on tbe taxes collected.by tbe defendant for tbe years 1905 and 1906, nor indeed is it a claim for services actually rendered, but is for commissions which be claims tbe county owes him constructively because tbe county commissioners wrongfully placed tbe collection of tbe tax list for tbe graded schools for tbe years 1903-4 in tbe bands of another..

Tbe court below erred in overruling tbe exceptions of tbe plaintiffs for tbe allowance of said $295 in reduction of tbe balance due by tbe defendant, and' tbe judgment must be reformed accordingly. Tbis renders it unnecessary to consider tbe plaintiffs’ exceptions for overruling tbe plea of tbe statute of limitations and tbe other exceptions made by them.

Eeversed.  