SAMUEL BEAR v. COMMISSIONERS OF BRUNSWICK COUNTY.
IN THE SUPREME COURT.
(Decided March 21, 1899).
dеcided at February Term, 1898, and reported in 122 N. C., 434.
124 N.C. 204
MONTGOMERY, J., delivers the opinion. FAIRCLOTH, C. J., delivers dissenting opinion, concurred in by FURCHeS, J.
Mandamus—School Fund—Public Fund—Judgment Estoppel—Waiver—Necessary Expenses—Constitution, Art. VII, Sec. 7.
School orders issued by the school committee upon the treasurer of the County Board of Education, under the former system, were payable out of the School Fund only, and were not a valid charge upon the public funds of the county. - Judgments rendered upon school orders against the County Commissioners will not be enforced by mandamus, not being for necessary expenses within the purview of Art. VII, Sec. 7 of the Constitution.
- An estoppel, to be made available, must appear in the pleadings, otherwise it is waived and the trial proceeds upon the merits.
- While mandamus is in the nature of an execution, it is also in the nature of a civil action, with summons, pleadings, and Code practice. A party applying for it to compel the County Commissioners to levy a tax to pay his judgment against the county, must show affirmatively that the consideration of the debt upon which the judgment was recovered, was for an оrdinary or necessary county expense, or had been sanctioned by a vote of the people.
Petition to rehear this cause, decided at February Term, 1898, and reported in 122 N. C., 434.
Petition allowed.
Messrs. J. D. Bellamy and Shepherd & Busbee, contra.
MONTGOMERY, J. This case is before us on a petition to rehear, the first opinion having been filed at the Spring Term, 1898, and published in 122 N. C., 434. After further argument and a closer investigation, we have аrrived at the conclusion that there was error in the former opinion in its reversal of the judgment of the Superior Court. That judgment ought to have been affirmed.
The plaintiff in his complaint alleged that the defendants were indebted to him in the sum of .... dollars due by eight judgments originally had in a Court of a Justice of the Peace, and afterwards docketed by transcript in the office of the Clerk of the Superior Court of Brunswick County, and prayed judgment that the defendants be compelled to levy a tax to pay the judgments and costs. The defendants in their answer admitted that the judgments were procured as alleged, but averred that they were not valid and binding against the defendants, for the reason that they were obtained against a former Bоard of Commissioners on school claims for which neither the defendants nor their predecessors were liable in law. The defendants further aver that the judgments were obtained on certain school orders issued about the year 1886 by the school committeemen of certain school districts of Brunswick County upon the Treasurer of the County Board of Educatiоn, and that they were not a valid charge against the defendants, the Board of Commissioners, or a charge upon the public funds of the county, or upon any
When the case came on for trial a jury trial was waived and it was agreed that his Honor who presided should find the facts, and the case was heard by the Court by the consent of counsel of the plaintiff and of the defendants. What facts could have been in the minds of the counsel, exсept the facts connected with the consideration of the claims on which the original judgments were procured, and those connecting the judgments of 1894, docketed in the Superior Court by transcript, as being the same judgments which were originally rendered by the Justice of the Peace in 1888? No other facts could have been referred to, for they were rаised by the pleadings, and the defendants in their answer had admitted that the judgments had been obtained by the plaintiff as set out in his complaint. The plaintiff having failed to plead his judgments in estoppel of the matter set out in the answer, or to demur to the answer, waived his rights as to any advantage which the law had given to his position, and by his agreement to submit the facts to the finding оf the Court, went to the hearing on the merits of the original consideration upon which the judgments were granted. “Numerous decisions in this country and England hold that where a party has an opportunity to plead an estoppel, and
His Honor found as a fact upon the evidence, none of which was objected to, that the original judgments were obtained upon certain school orders issued during the year 1886, and that the judgments of 1894 in the Superior Court were the same judgments which were obtained before the Justice of the Peace in 1888, and that there was nothing in the record or judgment of 1894 to show what the cause of action was, except that they were brought on former judgments. Now, upon his Honor‘s findings of fact, the legal question arises, were school orders issued in 1886 a debt for which the county was liable, and for which the Board of Commissioners could be made to provide by taxation? We think not.
The law in force at the time when the school orders upon which the plaintiff‘s аction was brought were issued, was The Code, chapter 15, Vol. 2, as amended by chapter 174 of the Acts of 1885.
The County Treasurer of each county was required to receive and disburse the public school funds, not under his general bond, but under a separate bond conditioned for the faithful performance of his duties as Treasurer of the County Board of Education. The County Board of Education were empowered, if they deemed it necessary, to require the Treasurer of the County Board of Education to strengthen his bond, and for any breach of that bond action was to be brought, not by the County Commissioners, but by the County Board of Education.
The Treasurer of the County Board of Education was required to open accounts with each public school district, and report yearly to each school committee the amount appor-
From this review of the law in force when the school orders were issued, upon which the plaintiff‘s judgments were obtained, it appears that there was a complete separation of the school funds from the general county fund upon the apportionment being made, and from that time all control of the same by the County Commissioners ceased; that the funds were taken charge of by the Treasurer of the Board of Education under a separate bond; that the disbursements were made by that officer under orders signed by the school committees; that the accounts of the schoоl fund were kept by that officer and the several school committees, and a report, yearly, to the County Board of Education made of all receipts of school funds by him, and the amount apportioned to each district was the fund out of which school orders were to be paid.
The county, therefore, through the Board of Commissioners, was not liаble for the debt upon which those orders were issued.
If the amount apportioned to the district or districts, upon whose committee or committees the orders were drawn, had been in the hands of the Treasurer of the Board of Education, and he had defaulted in their payment, then the law required action for such defalcation to be instituted against that оfficer and his bond. If there never had been in the treasurer‘s hands any funds to meet those orders because they were improperly issued, then there was no liability on either the county or the treasurer.
But besides the view of this case, as expressed above, we are of the opinion that before mandamus can be issued to compel the Board of Commissioners of a county to levy a
The prayer of the petitioners must therefore be grаnted. The case must be reheard, and the judgment of this Court entered therein at the Spring Term, 1898, must be set aside, and judgment entered at this term affirming the judgment of the Superior Court. Prayer of the petitioners granted.
FAIRCLOTH, C. J., dissenting: On this petition to rehear I am unable to agree with the opinion of a majority of the Court.
The facts: The plaintiff in 1888 instituted several actions before a Justiсe of the Peace against defendant Board of County Commissioners. The only matter filed in the nature of a complaint was “Claim,” and stating the amount of each. No denial of the claim, nor any defence, was made by the defendant, and judgments were entered in each case for the amount of the claim and costs. These judgments were not
In the present action, by consent of parties, his Honor found the facts in these words: “That the judgments sued on in the complaint were obtained in the yeаr 1894 in certain actions brought on former judgments obtained in 1888; that the cause of action on which said judgments of 1888 were obtained were school claims, as alleged in the answer; that there was nothing in the record of judgments of 1894 to show what the causes of action were, except that they were brought on former judgments.”
This action for mandamus, to compel defendants to levy a tаx and pay said judgments, was before us at last term by appeal from the Superior Court, refusing to grant the writ, and this Court held that was error, and reversed the judgment below. In this proceeding, the defendants answer and deny the validity of the judgments, and plead
I shall not further remark on thе effect and force of the judgments, as I did so for the Court in this case, supra. The case of Young v. Henderson, 76 N. C., 420, is decisive. The Court now admits the integrity of the judgments—that they can not be impeached, and that the matters therein in issue are res adjudicata—and puts its opinion on the ground that the consideration is a debt, not for a necessary county expense. Passing over the competency of evidence, in thе executionary stage of the cause, to go behind the judgments to set up a defence which was open to the defendants before the judgments were entered, we must consider whether the expense of the public common county school system is a necessary expense. What is a necessary expense is a question for the Court,
In Lutterloh v. Commissioners, 65 N. C., 403, it was held, “Where a party has established his debt against a county by judgment, and payment сan not be enforced by an execution, he is entitled to a writ of mandamus against the Board of Commissioners of said county, to compel them to levy a sufficient tax to pay off and discharge his said judgment.” It does not appear that it then occurred to any layman or lawyer that executionary process was inhibited by
The Constitution,
Finally,
I have thus quoted to show how important and necessary the Constitution considers the subject of public education. Every one knows that much machinery is necessary to perform this command of the organic law. Are not teachers necessary? And who will teach if his undisputed “school claim” can not be collеcted, as this plaintiff‘s can not be, if the remedy he prays for is withheld by this Court? The Court cites no authority whatever in support of its position, except the case of Rodman v. Town of Washington, 122 N. C., 39. Let us examine that case: The defendants were proceeding to levy and collect a tax under a special Act (Laws 1897, chapter 343) to meet the expenses of a corрoration graded school, and the plaintiff obtained an injunction on the ground that the Act was not passed according to the
My conclusion is that the opinion ought to be dismissed, and that the writ of mandamus should issue.
FURCHES, J., concurring in the dissenting opinion.