Daniel v. . Commissioners of Edgecombe
74 N.C. 494
N.C.
1876
Check Treatment
RoiniAN J.

1. The first question we have to consider is the authority of the County Court of Edgecombe to borrow money in 1864, for the support of the сounty poor, for the ensuing year. As the money was borrowed in 1864, the case is unaffected by the Constitution of 1868. Municipal corporations being the creatures of statute law, possess no powers but those which are given to them by statute ; that is to say, by the Constitution or some Act of the Legislature.

The general question of the power of a municipal corporation tо borrow money, is discussed in 1 Dillon Mun. Corp. sec. 83, and among the cases to which the author refers, that of Ketchum v. City of Buffalo, 14 N. Y. 356, seems particularly dеserving of attention for its reasoning ; for the point was not decided. Without undertaking to lay down a rule of universal application, we think that there was nothing in the duties imposed upon the County Courts, or in the powers given to them, which required for their exercisе, ‍​‌​​‌‌​‌‌‌​‌​​​‌​‌​​​​​​‌​​‌‌​​‌‌‌​‌‌‌​‌​‌‌​‌‌​‌‍a power to borrow money, or from which such power could be fairly implied. By chap. 86 of the Revised Code, the genеral care of the poor is given to Wardens, who are required to be annu ally elected by the County Courts. By sec. 7, “ On apрlication of the Wardens, the Justices, when providing for other county revenue, may lay a tax sufficient for the maintenance *499 of the poor, which shall be collected and paid to the Wardens,” &c. This was the whole power of the County Court which is mаterial to the present question. Ye are of opinion that the contract of the County Court with the testator of the plaintiff was ultra vim and void. This opinion is supported' by that of the Supreme ‍​‌​​‌‌​‌‌‌​‌​​​‌​‌​​​​​​‌​​‌‌​​‌‌‌​‌‌‌​‌​‌‌​‌‌​‌‍Court of New Jersey in the very recent case of Hackettstown v. Swackhamer, 37 N. J. Law, (8 Vrooin) 191, and by the Supreme Court of the United States in Mayor, &c. v. Ray, 19 Wall. 468.

2. The denial of the power of a municipal corporation to borrow money, is not inconsistent with an admission of its-power to contract debts for legitimate purposes. It is impossible to conceivе how without this power, a County Court could perform the various duties imposed on it, for the welfare and good government of the county. Among these duties are included the building and repair of the necessary public buildings and bridges, the paying of the salaries оf certain officers, of jurors, and of witnesses in certain cases, and sometimes of prosecuting and defending suits. There is no authority which denies the power, and its possession is directly decided, or necessarily implied, in many cases decided in this court, of which Winslow v. Commissioners of Perquimans 64 N. C. Rep. 218, and Yellowley v. Commissioners of Pitt, 73 N. C. Rep. 164, may be taken as examples. The power ‘to contract a debt is of necessity, but tire power to borrow money is not, and though both aro liable to abuse, the first is the less so.

3. In the present case the County ■ Court had purchased certain provisions for the poor, whereby they had contracted a debt, and the case states that the money which was borrowed from the testator of the plaintiff, and from others at the ‍​‌​​‌‌​‌‌‌​‌​​​‌​‌​​​​​​‌​​‌‌​​‌‌‌​‌‌‌​‌​‌‌​‌‌​‌‍same time, was actually applied to the payment of that debt, and to purchasing other' like supplies. All fraud is thereby excluded, and we see no reason why the plaintiff should not be subrogаted to the rights of the creditors whose *500 debts be paid, and recover as their substitute the value of' what he paid.

This agrees with what is said in Davis v. Commissioners of Stokes, at this term.

The creditors of the comity could certainly assign their claims, and their being paid in the maimer stated, ought notin equity to be regarded as an extinguishment. Equity will consider the money lender as an assignee of the original debt.

Upon the principles here stated, every pеrson who furnishes labor or materials upon a contract with county commissioners takes on himself the burden of showing that the debt wаs fairly contracted, and was for a purpose within the scope of their powers. And every one who lends money to county commissioners, is bound to show that it was faithfully applied to pay such debts, when he will be permitted to ‍​‌​​‌‌​‌‌‌​‌​​​‌​‌​​​​​​‌​​‌‌​​‌‌‌​‌‌‌​‌​‌‌​‌‌​‌‍stand in the place of the creditors.

4. The rule, for ascertaining the value of what the plaintiff paid would not be the value of the Confederate mоney loaned by him as fixed by the agreement in 1864, for that contract,. as we have seen, was void.

There is, under the circumstancеs of this case, no practicable rule for ascertaining the value, except by tbe legislative scale.

We think the рlaintiff is entitled to recover according to that scale, unless he is barred by the statute of limitations.

5. He is barred, unless what took place between his counsel and the defendants, makes it against equity and good conscience for them to plеad the statute. We are of opinion that it does so make it. When the plaintiff, through his-counsel, proposed to the cоunty commissioners that Ms claim should abide ‍​‌​​‌‌​‌‌‌​‌​​​‌​‌​​​​​​‌​​‌‌​​‌‌‌​‌‌‌​‌​‌‌​‌‌​‌‍tbe result of a trial in the suit of Austin against them upon a similar claim, there was no dissent exprеssed. The commissioners accepted service of a summons issued at the instance of Austin, which seems to have been a part of the plan forjan. economical determination of his claim, and that *501 of the plaintiff, and left the plaintiff under thе belief that his proposition had been accepted. That no formal note was taken, and no record of the acceptance of the proposition made, was not decisive. The law that a record shall be kept, of аll resolutions and acts of the commissioners is directory only. It ought always to be observed, and it is perhaps penal to nеglect it, but it is not essential to the validity of their acts. Otherwise persons dealing with them who have no means of knowing whether a record is made or not, might be deceived and injured.

The assent of defendants to this proposition was equivalent to an agreеment, that the time which should thereafter elapse*, until the trial and determination of Austin’s suit, should not be counted. Austin’s suit was never tried, but was сompromised by the parties to it;

The plaintiff was entitled to have until the next regular meeting of the commissioners after he was informed of the compromise, before he could be considered in moro, so that the statute could run. Deducting this time of рermitted delay, the plaintiff’s claim is not barred. Judgment for the plaintiff according to the legislative scale, for the value of Confederate money. The judgment being partly affirmed, and partly reversed, each party will pay his own costs in this ’court.

Per Curiam. Judgment accordingly.