#### F. E. FREEMAN, E. Y. PONDER, for and on Behalf of Themselves and Such Other Citizens and Taxpayers of Madison County as May Make Themselves Parties to This Action, v. THE BOARD OF COUNTY COMMISSIONERS OF MADISON COUNTY.

(Filed 28 February, 1940.)

1. Public Officers § 10—

Taxpayers may not maintain an action to determine title to a public office, neither claimant to the office being a party, since plaintiffs are not the real parties in interest, C. S., 446.

2. Public Officers § 9—

Injunction is not the proper remedy to try title to public office.

3. Counties § 17—

Taxpayers of a county may maintain an action to restrain the board of county commissioners from making illegal disbursements of public funds by the payment of salaries to unauthorized persons.

4. Statutes § 12—

Ordinarily, a local statute is not repealed by a general statute dealing with the same subject matter, even when the general statute is later enacted.

5. Counties § 1—

The General Assembly has the power to create county highway commissions.

6. Same—

The General Assembly has the power to create county sinking fund commissions.

7. Public Officers § 4b—

Ch. 341, Public-Local Laws of 1931, providing that the chairmen of certain county boards of Madison County should elect a tax manager for the county, merely imposes additional duties *ea> officio*upon the said chairmen, and does not provide that any one of them should hold two-public offices in violation of Art. XIY, sec. 7, of the Constitution of North Carolina.

8. Public Officers § 6: Constitutional Law § 12 — Public officers continue in office until their successors are chosen and qualify.

Public officers continue in office until their successors are chosen, Art. XIY, sec. 5; C. S., 3205, and therefore, the General Assembly having failed to appoint or provide for the election of successors to the highway and sinking fund commissioners of Madison County, who- were appointed for a four or six-year term by ch. 341, Public-Local Laws of 1931, the General Assembly is presumed to acquiesce in their continuance in office, and the General Assembly having power to terminate, change or continue the appointments, it will not be held that it intended to create perpetuities or exclusive emoluments in violation of any of the provisions of Art. I of the Constitution, and said commissioners continue to hold office with power to discharge the duties thereof.

*2109. Public Officers § 2: Counties § 7 — Ch. 341, Public-Local Laws of 1931 held to pi’ovide exclusive method for appointment of Madison County tax manager or collector.

The appointment of a tax manager or collector for Madison County by the chairmen of the highway and sinking fund commissions and the chairmen of the hoard of county commissioners and the hoard of education in accordance with ch. 341, Public-Local Laws (the statutes creating the jury and tax commission and the board of health of the county being unconstitutional), *is held,*to preclude the board of county commissioners from taking oyer the office of county tax collector, and taxpayers of the county may enjoin the commissioners from paying to the person appointed to this office by them public funds of the county.

10. Counties § 1—

Counties are political subdivisions of the State, and the General Assembly has control and supervision over them, limited only by restrictions prescribed by the State Constitution and the powers granted to the Federal Government in the Constitution of the United States.

11. Same: Counties § 7—

The General Assembly has power to provide for the appointment of a tax collector or manager for a county of the State, the fiscal powers granted the county commissioners by Art. VII, see. 2, being subject to modification or abrogation by statute by express provision of Art. VII, sec. 14.

12. Same: Counties § 5 — County commissioners of Madison County held to have authority to appoint delinquent tax collector for the county.

There being no provision in ch. 341, Public-Local Laws of 1931, for the election of a delinquent tax collector for Madison County, the board of county commissioners of the county has authority to appoint a delinquent tax collector for the county to collect delinquent taxes and those taxes uncollected by the tax manager appointed under provision of the public-local act, and taxpayers of the county are not entitled to enjoin the county commissioners from paying the salary of the delinquent tax collector appointed by them.

Appeal by defendant from *Nettles, J.,*at October Term, 1939, of MadisoN.

Modified and affirmed.

Plaintiffs as citizens and taxpayers of Madison County instituted this action to restrain the board of county commissioners (1) from electing ■or appointing *~W.*Gr. Buckner tax collector, or permitting him to exercise the duties of tax collector; (2) to restrain the defendant from permitting J. M. Baley, Sr., to have the delinquent tax books, or to perform ■duties as delinquent tax collector; (3) to restrain defendant from paying any county funds to *~W.*Gr. Buckner or J. M. Baley, Sr., or any other person elected by defendant as tax collector. A temporary restraining order issued accordingly, with notice to defendant to show cause why the order should not be continued to the hearing. On the return day of the notice, after considering the complaint, answers and affidavits, judgment was rendered for plaintiffs, enjoining defendant and its employees, W. G. *211Buckner and J. M. Baley, Sr., from interfering with Roy Wade Ponder in the performance of the duties of tax manager or tax collector, and requiring the delivery of the tax books, and other property used in the collection of taxes, to Roy Wade Ponder, who was held to be the legally elected and qualified tax manager or tax collector of the county. The defendant was further enjoined from paying any county funds to said Buckner or Baley in connection with tax collections, and required to pay the salary of tax manager to Roy Wade Ponder, and also to pay the premiums on the surety bond of said Ponder.

The method of selecting a tax collector or tax manager for Madison County is prescribed by sec. 4, ch. 341, Public-Local Laws 1931, as follows: “That from and after the ratification of this act no auditor or tax collector shall be elected for Madison County in any other way or manner save that provided in this section. That on the first Monday in December, one thousand nine hundred and thirty-two, the chairman of the board of education, the chairman of the board of county commissioners, the chairman of the board of health, the chairman of the sinking fund commission, and their successors in office, and the chairman of any other boards that may be created by this Legislature, for Madison County, shall meet and elect an auditor by a majority of the votes of the various chairmen. . . . That the office of tax collector of Madison County is hereby abolished except, however, that the present tax collector shall continue to collect taxes that are now in his hand. That the chairmen of the various boards referred to in this section shall meet on the first Monday in August, one thousand nine hundred and thirty-one, and by a vote of the chairmen of the said boards and in the manner herein-before provided, elect a tax manager for a period of two years, whose duty it shall be to collect the taxes, and the chairmen of the various boards shall fix the tax manager’s salary and prescribe his duties, and said salary shall be paid by the board of county commissioners out of the general county funds, and thereafter the said tax manager shall be elected biennially by the chairmen of the said boards herein referred to.”

The pertinent findings of fact of the court below may be briefly stated as follows: On the first Monday in August, 1931, the designated chairmen, including chairman of the defendant board, elected J. K. Wilson as tax manager for the county, and biennially thereafter reelected him up to and including August, 1939. The defendant board recognized the validity of these acts by participating in the election of tax manager thereunder, turning over the tax books to him and making annual settlements with him, and paying the premium on his surety bond. In October, 1939, Wilson tendered his resignation effective upon the election and qualification of his successor, and thereupon written notice was given the proper chairmen, including chairman of defendant board, of meeting *212to elect a successor to Wilson. At tbe meeting Roy Wade Ponder was duly elected as tax manager of tbe county to fill out tbe unexpired term ending August, 1941. Roy Wade Ponder promptly qualified and gave bond approved by tbe sinking fund commission, and demanded possession of tbe tax books and property incident to tax collection. Tbe defendant declined to comply and turned tbe books over to W. G. Buckner, wbom' it bad attempted to elect as tax collector and to wbom it intends to pay from tbe public funds for services as tax collector $125 per month. Tbe defendant also attempted to appoint J. M. Baley, Sr., “delinquent tax collector,” and turned over to bim tbe delinquent tax books, proposing to pay bim $100 per month from tbe county funds. Tbe said Buckner has not bad bis bond approved in the manner required by cb. 183, Public-Local Laws 1931.

Tbe court below adjudged that W. Gr. Buckner was not tbe tax collector of Madison County, either *de jure*or *de facto,*and that Roy Wade Ponder was tbe duly and legally elected tax manager or tax collector, and alone charged with duty of collecting all current and delinquent taxes, and that tbe appropriation of county funds to pay tbe proposed salaries of Buckner and Baley would be unlawful. It was also adjudged that tbe defendant pay the costs.

Tbe defendant excepted to tbe findings of fact and tbe judgment of tbe court below, and appealed to tbe Supreme Court.

*Smathers <& Meekins for plaintiffs, appellees.*

*Roberts'S Baley and Jordan & Horner for defendant, appellant.*

Devin, J.

This action was instituted by two citizens and taxpayers of Madison County. They are tbe only plaintiffs. Tbe defendant is tbe board of county commissioners. Tbe action concerns tbe title to tbe office of tax manager or tax collector of tbe county. Tbe plaintiffs allege that Roy Wade Ponder is tbe legally elected and qualified tax officer, while tbe defendant asserts that W. Gr. Buckner is tbe lawful incumbent of tbe office. But neither of tbe rival claimants is party to tbe suit. In that respect tbe plaintiffs are not tbe real parties in interest. C. S., 446. Moreover, tbe attempt to try tbe title to a public office by injunction has been held improper. *Jones v. Comrs. of Granville County,*77 N. C., 280; *Rogers v. Powell,*174 N. C., 388, 93 S. E., 917. If there were nothing more in tbe action than this, it might be readily dismissed. But tbe plaintiffs as citizens and taxpayers of tbe county have also sought in this action to restrain tbe board of county commissioners from making illegal disbursements of public funds by tbe payment of salaries to unauthorized persons. For this purpose tbe plaintiffs have a standing in court as parties with a legal interest in tbe controversy, and tbe ques*213tion is raised whether the proposed payments to W. G. Buckner and J. M. Baley, Sr., for services as tax collectors are unlawful.

Hence, on this record as the action is now constituted, the only question properly presented for determination is the ruling of the court below on the plaintiffs’ suit to restrain the defendant board of county commissioners from making unlawful appropriations of the county funds to the payment of the persons attempted to be elected by the defendant as tax collectors for the county. On this point the plaintiffs’ contention is the defendant had no lawful authority for the election of the persons named as tax collectors, for the reason that the statute regulating the selection of persons to collect the county taxes sets forth an exclusive method for so doing, which defendant has not observed.

It is apparent that unless the method of selecting the tax collecting officer for Madison County, prescribed by sec. 4, ch. 341, Public-Local Laws 1931, can be disregarded, the defendant board was without authority to elect Buckner and the proposed payment of county funds to him as tax collector would be unlawful.

An examination of the Public-Local Laws of 1931 reveals that the General Assembly at that session created for Madison County four boards or commissions, to wit: Jury and tax commission (ch. 171), sinking fund commission (ch. 183), board of health (ch. 322), and highway commission (ch. .343). The chairmen of these boards, together with the chairman of the county board of education and the chairman of the board of county commissioners, six in number, originally composed the body charged with the duty of electing a tax manager or tax collector for the county. However, the act attempting to create the jury and tax commission was held by this Court, Spring Term, 1938, to be violative of Art. XIV, sec. 7, of the Constitution of North Carolina, and the persons named in the act (ch. 177) were adjudged incompetent to perform any duty thereunder. *Brigman v. Baley,*213 N. C., 119, 195 S. E., 617. This act being void from the beginning, the named chairman was without power to act. He, however, took no part in the election of a successor to J. K. Wilson as tax manager. Likewise, the act attempting to create a board of health for Madison County (ch. 322) may be regarded as inoperative on constitutional grounds, and the chairman of that board accordingly held without power to perform any official duty thereunder. This would leave four chairmen apparently capable of acting, to wit, the chairman of the'board of county commissioners, the chairman of the county board of education, the chairman of the sinking fund commission, and the chairman of the highway commission.

The validity of the act creating a highway commission for Madison County may not be successfully attacked. The local act (ch. 343) was passed after the enactment of the general statute (ch. 148, Public Laws *2141931), but even if passed prior thereto would not have been invalid for that reason, as pointed out by *Schenck, J.,*in *Rogers v. Davis,*212 N. C., 35, 192 S. E., 872. This act (cb. 343) was referred to in *Waldroup v. Ferguson,*213 N. C., 198, 195 S. E., 615. Tbe power of tbe Legislature to create highway commissions to take over tbe duties of tbe boards of county commissioners is well recognized. *Comrs. v. Bank,*181 N. C., 347, 107 S. E., 245; *Ellis v. Greene,*191 N. C., 761, 133 S. E., 395. Tbe act creating a sinking fund commission for Madison County (cb. 183) may also be regarded as a valid exercise of legislative power. *Jones v. Comrs. of Madison County,*137 N. C., 579, 50 S. E., 291; *Audit Co. v. McKensie,*147 N. C., 461, 61 S. E., 283. It appears that Buckner has not filed bond approved by tbe sinking fund commission as required by this act.

It may be noted that tbe act relating to tbe election of a tax manager does not fall under tbe condemnation of *Brigman v. Baley, supra,*for here these chairmen were not required to qualify or take oath of office. This act merely provides that new and additional duties *ex officio*were imposed upon those bolding these offices. This was held in *McCullers v. Comrs.,*158 N. C., 75, 73 S. E., 816, not to violate tbe prohibition of Art. XIV, sec. 7, of tbe Constitution.

Tbe defendant contends that tbe act, chapter 341, Public-Local Laws 1931, is ineffective to provide exclusive machinery for tbe election of a tax collector on tbe ground that, by tbe language of tbe 1931 act creating tbe several boards or commissions, tbe terms of office of tbe members were limited to four and six years, and that in 1939, after tbe expiration of their terms, tbe chairmen of these boards were without power to act, thereby causing tbe machinery to collapse, and that consequently there was no legal restraint upon tbe power of tbe board of county commissioners to fill tbe vacancy. It will be observed, however, that tbe statutes prescribe terms of four and six years “from tbe date of ratification of this act and until their successors are appointed and qualified.” It is further provided that in case a member of a board shall for any cause cease to act tbe remaining members shall elect bis successor. As tbe General Assembly appointed tbe members of tbe boards, it bad unrestricted power to appoint their successors, or provide for their election, and having failed to do so up to tbe present, is presumed to have acquiesced in their continuance in office, but always with power to terminate, change or continue tbe appointment. Hence, it may not be held that tbe Legislature intended or attempted to create a perpetuity or to violate any of tbe provisions of Art. I of tbe Constitution. Both tbe Constitution (Art. XIV, sec. 5) and tbe general statute (C. S., 3205) expressly authorize tbe continuance in office of public officers until their successors are chosen. *Markham v. Simpson,*175 N. C., 135, 95 S. E., 106.

*215It is further objected that since the body empowered to elect the tax manager was originally composed of six persons,’ chairmen of designated boards or commissions, the incompetency of two of the electors has rendered the remaining four without power to act.

Without making a ruling on the record as it is now constituted, in the absence of a dii’ect attack by proper proceeding, it would seem that the action of the electing body, under the facts found by the court below, is at least *prima facie*in accord with the statute, and that the machinery therein provided excludes authority on the part of defendant board to take over the office of county tax collector. It was found from the pleadings and affidavits that, after proper notice of meeting of the chairmen for the purpose of electing a successor to Wilson for the unexpired term, Roy Wade Ponder was “duly elected,” that is, elected in accordance with the act. There is nothing in the defendant’s answer or affidavits to the contrary. It may be further noted that whether the electing chairmen were acting *de jure*or not, they were acting in the performance of a public duty imposed upon them by law, and for five successive terms had elected the tax manager for the county and their action had been given unquestioned recognition by the people of the county and by the defendant board, and the taxes were collected and accounted for pursuant to the election by the designated chairmen. There was no vacancy or hiatus in the functioning of the exclusive machinery for electing a tax collector, so as to permit authority in this respect to devolve upon the board of county commissioners. *Norfleet v. Staton,*73 N. C., 546; *S. v. Lewis,*107 N. C., 967, 12 S. E., 457; *Baker v. Hobgood,*126 N. C., 149, 35 S. E., 253; *Smith v. Carolina Beach,*206 N. C., 834, 175 S. E., 313; C. S., 3204.

It is urged that the entire plan, by which the General Assembly, through the creation of boards and by naming the members thereof, undertook to control the local affairs of Madison County, should be struck down by the court. But it must be remembered that the General Assembly has power to create counties and to regulate their affairs unless restricted by constitutional provision. Counties are political subdivisions and instrumentalities of the State by means of which the State performs certain of its governmental functions within its territorial limits. *S. v. Jennette,*190 N. C., 96, 129 S. E., 184. It was said in *Jones v. Comrs. of Madison County,*137 N. C., 579, 50 S. E., 291, speaking of the power of the Legislature over counties: “In the exercise of ordinary governmental functions they are simply agencies of the State, constituted for the convenience of local administration in certain portions of the State’s territory, and in the exercise of such functions they are subject to almost unlimited legislative control, except when this power is restricted by constitutional provision.” *Trustees v. Webb,*155 *216N. C., 379, 71 S. E., 520; *Bell v. Comrs.,*127 N. C., 85, 37 S. E., 136; *Martin v. Comrs.,*208 N. C., 354, 180 S. E., 777. The power to levy taxes is vested in the legislative branch of the government. “For this purpose, under the Constitution,” said *Winborne, J.,*in *Henderson County v. Smyth,*216 N. C., 421, “it is within the exclusive power of the Legislature to provide the method and prescribe the procedure.”

While the levying of county taxes and the general supervision of county finances were by Art. VII, sec. 2, of the Constitution, placed within the province of the county commissioners, by a later section, Art. VII, sec. 14, the power of the General Assembly, by statute, to modify or abrogate the provisions of sec. 2 was expressly reserved.

It has been declared frequently by this and other courts that the power of the Legislature is limited only by the restrictions placed upon it by the people themselves in the Constitution and by the powers granted to the Federal Government in the Constitution of the United States. It is only when it is made to appear clearly that the Legislature has exceeded the limitations upon its powers that the courts will interpose to declare an act void or nullify the manifest purpose of legislative will. *Kornegay v. Goldsboro,*180 N. C., 441, 105 S. E., 187.

The expressive language of *Mr. Justice Holmes*in *Tyson v. Banton,*273 U. S., at page 446, aptly states the guiding principle of judicial construction as follows: “I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the state, and that courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular court may happen to entertain.”

There is no provision in ch. 341 authorizing the chairmen of the designated boards to elect a delinquent tax collector for Madison County. Consequently, the power of defendant board to provide for the collection of delinquent taxes and those taxes uncollected by the tax manager for the previous years is not affected by this act. The court below was in error in holding that the defendant was without authority to employ a person to collect delinquent taxes, and in restraining the defendant from making appropriation of public funds to the payment of compensation therefor. Sec. 1718 (d), ch. 310, Public Laws 1939. It appears also that the incumbent J. M. Baley, Sr., has been so employed, without objection, since August, 1937.

We are of opinion, and so hold, that the attempt to determine the title to the office of tax manager or tax collector of Madison County, or to require payment of the salary of that office to a particular person, or the premium on his surety bond, is beyond the scope of the judicial inquiry and not determinable in this action. The judgment must be modified *217accordingly. Nor should judgment for costs of action be entered as part of tbe order continuing tbe temporary restraining order to tbe bearing.

Tbe ruling of tbe court below in restraining tbe defendant from making payments of county funds to Buckner as tax collector, on tbe findings and evidence, must be upheld.

As herein modified, tbe judgment is affirmed.

Modified and affirmed.