#### CITY OF HENDERSON v. COUNTY OF VANCE and HENRY W. HIGHT, Clerk of Vance County Recorder’s Court.

(Filed 20 November 1963.)

Appeal and Error § 6; Declaratory Judgment Act § 1—

A proceeding -by a municipality to determine whether, under a statute consolidating the municipal and county courts, the county should pay to ■the city one-half of .the fees in prosecutions in recorder’s court in which ■the defendant is acquitted or unable to pay the costs or in which a nol. pros, is entered, will be remanded when it appears that the amount of unpaid costs since the enactment of the statute had not been determined and that there had been no demand upon the county for any specified sum, since such proceeding is in fact for the purpose of procuring an advisory opinion upon which the city may rely in bringing an action against the county if so advised.

*530Appeal iby defendíante from *Iiobgood,*«/., at Chambers in HeNDER-SON, North Carolina, on 25 July 1963. From Henderson.

In 1949 .the Genera! Assembly of North Carolina consolidated tlhe Municipal Court of the City of Henderson with the Recorder's Court of Vamlce County. The 1949 Session Laws of North Carolina, chapter 409, section 2, provides: “The clerk of said recorder’s court shall collect all fees, oasts, fines and forfeitures and other revenues derived from said- court 'and deposit the same in a separate fund. The said clerk shall turn over to> the county school fund the clear proceeds of all penalties, forfeitures 'and fines collected', as required by Article 9, Section 5, of tibe Constitution of North Carolina, and 'all! costs and other' revenues from said court, after payment of the salaries of the recorder, prosecuting 'attorney 'and clerk, and other expense of its operation, shall be turned over one-half to the county general fund and one-ibalf to the City of Henderson general fund monthly.”

This action was .instituted on 23 January 1963 for a declaratory judgment to obtain (1) a determination whether or not the County of Vance should pay into .the hands of the Clerk of the Vance County Recorder’s Court one-half the costs in State failures; and (2) a declaration whether or not the County of Vance should be repaid for said coats of State failures prior to the division of the costs and revenues of said Recorder’s Count between the County of Vance 'and the Oi'ty of Henderson.

G.S. 6-36 reads .as follows: “In a criminal'action, if there is no prosecutor designated by the court as liable for file costs under the provisions of the General Statutes .section 6-49, and the defendant is acquitted or convicted and unable to. pay -the costs, or a *nolle prosequi*is entered, or judgment arrested, the county shall pay the clerics, sheriffs, constables, justices and witnesses one-half their lawful fees; except in capital cases .and in prosecutions for forgery, perjury, or conspiracy, when they ¡shall receive full fees. No county shall pay any such costs 'Unless the same are .approved, .audited and adjudged against the county as provided in this chapter.”

It is alleged in the defendants’ answer that the County of Vance presently is paying one-half of the .fees due to. -fee-basis officials and witnesses, to' wit, “constables, justices and witnesses.”

It was admitted on oral argument before this Court -that the defencl-■amt Henry W. Higjht is Clerk of the Superior Court of Vance County and receives a salary rather than fees for his services a.s such Clerk. It was also admitted that this defendant is the Clerk of the Vance County Recorder’s Court and is paid an additional salary for his services in *531that capacity. Chapter 409, Session Laiwis of 1949, fixed the salary of the Cleric of this -court .at $125.00 per month.

This matter -w;a© ¡heard on ¡the pleadings and oral -arguments. No evidence was offered in the hearing below.

The court, -upon the facts found, held as a matter of la.w “ (a) That the County of Vanc-e ¡Should pay into the hands of the Clerk -of the V-an-ce County Recorder’© Court one-half of his fees -a© well ais -one-half of the fees of the Constables, Justice© of the Peace, and Witnesses in ial-1 state failures.

“ (b) That ©aid -one-half of the Clerk’© fees- in state failures should be included in the distribution a© -a part of the net proceeds from said Recorder's Court, and distributed one-half to the City of Henderson, and one-half to the County of Vance.

“ (c) That the County of Vance ¡should not be repaid the Clerk’s fees in -state failures prior to the distribution.”

Thereupon, the court adjudged and decreed “That the County of Vance is and has been liab-l-e -since the -enactment -of ¡session l-awis of 1949 Chapter 409 to pay into the Clerk of the Vanice County Recorder’s Court one-hailf of the lawful fees -of the Clerk, Sheriffs, Constable©-, Justices of the Peace, and Witnesses in all criminal actions where the defendant is acquitted -or unable to- pay the cost© or' in which a *nol -pros*is entered, and the payment of ©aid one-half fees be included in the net proceeds from said Recorder’s Court, which proceeds are distributable one-half to the City of Henderson -and -one-half to the County of Vance.”

From the foregoing judgment the defendants appeal, assigning error.

*Zollicoffer & Zollicoffer for plaintiff appellee.*

*A. A.*Bunn, *Sterling G. Gilliam for defendant appellants.*

Per Curiam.

It will -be noted that the court below, upon the facts found, held -a© -a matter of law “That the County of Vance should p-ay into the hands o-f the Clerk of the Vanice County Recorder’s Court one-half of his fees as well -as one-half of the fees of the Constables, Justices -of the Peace and Witnesses in ¡all ¡state failures.” However, the judgment entered below is to the effect that the County of Vance is and ha© been liable -since the enactment of tire Session Law© of 1949, Chapter 409, to p-ay into the hands of the Ol-erk -of the Vance County Roe-order’© Court one-half of the lawful fees of the Clark, Sheriffs, Constables, Justices of the Peace, and Witnesses in al-1 oriminial cases where the defendant .is acquitted or unable to pay ¡costs or in which a *nol pros*is entered.

*532It iis not 'ascertainable from the pleadings when this controversy arose, or foir what period oif time the County of Vance bias refused to pay one-half >of the Cleric’s fees demanded. We do not recall that any question was ¡raised on the oral 'argument before this Court with respect to the failure to pay Sheriffs’ fees. Furthermore, in the findings of fact, the icount found that prior to January 1960 the County of Vance paid into the hands of tilre Clerk of the Recorder’s Court one-haif oif the fees of the Clerk, Constable, Justices of the Peace, and Witnesses in State failure®', and that since that time the Counity of Vance has 'been paying into the hands of the Clerk only one-half of the fees of Constables, Justices of the Peace, .and Witnesses in State failures.

There are no- allegations in the pleadings with respect to the amount of unpaid costs by the County of Vance in State failures. Neither are there any allegations to show that a claim or claims for such indebtedness have been presented to the County of Vance in the manner prescribed by law.

As we construe the plaintiff’s pleadings and brief, this action was (brought for the sole purpose ,of procuring from this Count an advisory ¡opinion upon which the plaintiff may rely and bring an action, if so advised, against the defendants to. recover certain unpaid costs it alleges to be due from the County of Vance to- tire Clerk of the Recorder’s Court, the .amount of which has. not yelt been ascertained.

In /tire case of *Fuquay Springs v. Rowland,*239 N.C. 299, 79 S.E. 2d 774, the action was purportedly instituted under'the Declaratory Judgment Act, to determine what items of cost should foe included .in the /bills of costs in >a .criminal action tried in the Puquay Springs Recorder’s Count. This Court, speaking through Biarmbill, J., later C.J., said: “While we concede that the Declaratory Judgment Act, G.S. eh. 1, ait. 26, is comprehensive in scope and purpose, it does not, ¡and was not 'intended to-, /embrace an action such ¡as this. We .cannot perceive that the Legislature, in enacting that statute, -intended to. vest in the superior court® of the State the general power to oversee, supervise, direct, or ■instruct .officials of inferior ¡courts in the discharge of their official duties.

> “The defendant Council (Clerk of Fuquay Springs Recorder’s Count) did not .appeal. Even so, he is an' ¡official of the court. If he fails to¡ collect and account for monies rightfully belonging to plaintiff, or taxes items ¡of cost which .should not be taxed, or fails to tax items which should be taxed, the law provides an ¡adequate and expeditious remedy in behalf of those who have the right to raise the issue in /any of these particulars.”

*533The appeal was dismissed axud the cause remanded to toe Superior Count with instructions to- dismiss toe case from toe doickeib.

In- eur 'opinion it would be unwise for tlhis Court to ¡render 'an advisory opinion on toe questions posed, before all toe pertinent facts have been found or agreed upon as was done in toe case of *Greensboro v. Guilford*County, 191 N.C. 584, 132 S.E. 558.

The judgment entered below is vacated and toe cause is remanded to toe Superior Court where the plaintiff may take such action as it deems advisable in light of this opinion.

Remanded.