90 S.E. 694 | N.C. | 1916
The action was instituted by plaintiff on 10 December, 1913, against H. W. Masten, a former register of deeds of the county, for two terms, from 1 December, 1908, to December, 1912, and his codefendant, surety on his bond, to recover for fees due the county of Forsyth to the amount of $6,000 or $7,000, which plaintiff alleged said Masten had collected or should have collected by virtue and color of his office, and wrongfully withheld from the county. Plaintiff alleged, further, a demand and refusal on the part of the county commissioners to institute and maintain suit, etc.
On denial of liability, plea of settlement, release, etc., cause was referred by the court, and the referee, after a full hearing, reported that there were fees due the county of Forsyth to the amount of $6,867.17 from H. W. Masten, which he had received while in office, but ruled, among other things, as a conclusion of law, that the present action could not be maintained because chapter 80, Public Laws 1913, authorizing such suit to be instituted and maintained by a citizen and taxpayer of the county, was prospective in its operations and did not apply to the facts of the present case.
To this report the plaintiff excepted, in terms as follows: (2) "That the referee erred in finding that this action cannot be maintained by the plaintiff as instituted, because chapter 80 of the Public Laws of 1913 is not retrospective in its effect and cannot apply to settlements made between the defendant and the board of county commissioners during the year of his incumbency or amount paid to the defendant H. W. Masten by the board of commissioners of Forsyth County for making out the tax receipts."
(3) "That the referee erred in failing to find as a conclusion of law that, independent of chapter 80 of the Public Laws of 1913, the plaintiff, as a citizen and taxpayer of Forsyth County, had a common-law right to institute and prosecute this action in his own name for the benefit of Forsyth County."
The court entered judgment "overruling these exceptions" and (584) in effect dismissing the action, and plaintiff excepted and appealed. *636 Under chapter 436, Laws 1905, the principal county officers of Forsyth County are to be compensated by salary, and the fees collected over and above the salary allowed become the property of the county. The defendant Masten was the duly qualified and acting register of deeds of Forsyth County from 1 December, 1908, to 1 December, 1912. The other defendant, being his surety and plaintiff, a citizen and taxpayer of the county, having first made demand on the county commissioners to act, etc., instituted the present suit, alleging that said defendant Masten wrongfully withheld from the county $6,000 or $7,000 of fees which he collected or should have collected during his term of office.
On denial of liability, the cause was referred by the court, and the referee, having heard the evidence, reports that said Masten is indebted to the county of Forsyth in the sum of $6,867.17 by reason of fees collected by him or which he should have collected during his term of office, but ruled, as a conclusion of law, that the present action could not be maintained because the statute, chapter 80, Laws 1913, authorizing any citizen or taxpayer to bring such suit, having first made demand thereto on the county commissioners, is prospective in its operation, and does not apply to the present case.
The general rule is fully recognized with us that a statute will be given prospective effect only unless the law in question clearly forbids such a construction. Mann v. Allen,
In the present case, if the allegations of the complaint are established, there was a vested right of action for these fees in the county of Forsyth. Being a right appertaining to the county as a governmental agency of the State, so far as the county was concerned, it was very largely in the control of the General Assembly, Jones v. Comrs.,
There is allegation, further, in the complaint that a good portion of these fees had been collected and are now wrongfully withheld by defendant, and, as to that, if properly established, a recovery would be upheld, though a prospective effect only should, in its strictness, be allowed the statute as affecting both the right and the remedy. Apart from this, the plaintiff, as a citizen and taxpayer for Forsyth County, on sufficient and proper averment of default in this respect on part of the county officials, had and has a right to maintain an action of this character without resort to the provisions of the statute.
Suits in protection of the rights and interests of the county, on the part of citizens and taxpayers, have been frequently entertained by the courts in this State, and, while they have usually been of an inhibitive character, as in restraint of incurring an unlawful indebtedness of levying unlawful taxes, etc., the same principles, in proper cases, will uphold recoveries for money wrongfully disposed of or withheld (586) from the counties, on averment that the proper officials have corruptly or negligently refused to perform their duties in the matter. True, without the statute, it would be necessary in such a suit to make the *638
proper county officials parties defendant, that they might be heard on the questions presented, and that the funds, if recovered, should be in proper custody and control; but this is a matter affecting the remedy which may, even now, if necessary, be cured by amendment, and does not affect the right of the taxpayer to proceed, on averment, as stated, that moneys are clearly due the county and the proper county officials wrongfully and corruptly or willfully refuse to institute suit to recover it. Zuelly v.Caspar,
(587) There is error in the judgment, and this will be certified, that the cause as now constituted be proceeded with in accordance with the opinion.
Reversed. *639
Cited: Medlin v. Medlin,