The commissioners of Montgomery County issued a warrant upon the treasurer for the sum of $600 payable to the plaintiff "on building bridge at Martin's mill, to be paid out of the special tax funds." The order was presented to the treasurer, who refused to pay it. Thereupon the plaintiff began this action by issuing a summons returnable before the judge at chambers. In his complaint and in his reply to the defendant's answer, the plaintiff alleges that the defendant treasurer has in his hands, subject to said warrant, an amount more than sufficient to pay the same. He asks that a mandamus issue directing and commanding the defendant to pay said warrant. The defendant demurred to the complaint for that the plaintiff's alleged (179) cause of action was "a money demand," and that the summons should have been returnable to the regular term. The Court overruled the demurrer and the defendant excepted. He thereupon filed an answer. The defendant moved in this Court to dismiss the action for the same cause as that set out in his demurrer.
While the authorities are not entirely clear, we think the action was properly brought. The warrant or order directs the payment of a specific amount out of specific funds, "the special tax funds." The treasurer is a ministerial officer charged with the duty of holding the public
funds and paying them out on the warrant of the commissioners. This Court, in answer to the same objection made in Bearden v. Fullam,129 N.C. 477, said: "This is a proceeding, not to litigate a matter to obtain a judgment for money, nor to ascertain the defendant's liability on an issue of whether he is indebted to the plaintiffs or not, but to compel a public officer to deposit public funds in his hands in a public depository. It is not a money demand in the sense in which that word is used in the statute." The commissioners having audited and allowed the claim and having issued a warrant for its payment by the treasurer out of a specific fund, it is his duty to do so, provided he has such funds in his hands applicable to such claim. The law commits to the board of commissioners the power and duty of auditing and passing upon the validity of claims. If they refuse to audit or act upon a claim, mandamus
will lie to compel them to do so. Bennett v. Comrs., 125 N.C. 468. If after the hearing they refuse to allow or issue a warrant for its payment, an action will lie against the commissioners to establish the debt and for such other relief as the party may be entitled to.Hughes v. Comrs., 107 N.C. 598. If, however, the summons was improperly made returnable before the judge at chambers, he should not dismiss the action but transfer it to the civil issue docket for trial, making such amendments to process and pleadings as (180) might be necessary. Ewbank v. Turner, 134 N.C. 80. His Honor properly ordered the alternative mandamus to issue with the order to the defendant to show cause at the next term of the Superior Court why a peremptory writ should not issue. The judgment is but an order to show cause and can do no possible harm to the defendant. If he shall show that he has no money in hand applicable to the order, or that the special tax is by law applicable to some other purposes, or any other good and lawful reason for not paying the warrant, the court will refuse the peremptorymandamus and the plaintiff will proceed as he may be advised. It cannot be within the power or duty of the treasurer of the county to refuse to pay a county order issued by the board of commissioners because he does not think it a just or lawful claim, or for any other reason, which has been passed upon by the board, and within its power to act. It is different with the State Treasurer. He may refuse to pay a warrant of the Auditor if it appears that the law under which it is issued is unconstitutional, or the claim not within the terms of the statute. Constitution, Art. XIV, section 3. If the county treasurer deem the warrant drawn in contravention of a constitutional provision or limitation he should refuse to pay it. If
the Court should so adjudge upon the return to an alternative mandamus, no peremptory writ would issue. The judgment is
Affirmed.
Cited: Audit Co. v. McKensie, 147 N.C. 467; Coleman v. Coleman,148 N.C. 403.
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