Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-05-19
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are Of Interest to
Our People.
DIGESTED BY W. B. MARTIN,
Exclusively for virginian-Pllot.)
BEAR ". CoMMRs. BRUNSWICK
COUNTY.

wv
Supreme Court OF North Carolina,
March Il. 1899
A JUDGMENT AGAINST COUNTY
COMMISSIONERS BASED ON
SCHOOL ORDERS IS VOID.
MANDAMUS WILL NOT LIE TO
COMPEL A LEVY TO PAY a JUDO
MENT AGAINST A COUNTY. UN-
LESS THE DEBT ON WHICH THE
JUDGMENT WAS BASED is AT
'FIRMATIVELY SHOWN TO HAVE
BEEN A NECESSARY COUNTY
EXPENSE.
This suit was an application for
mandamus TO compel the county COM
missloners OF Brunswick county TO levy
tax to pay eight judgments which pc
titioner had recovered against said
county. The lower court refused the
writ and plaintiff appealed. The case
was first decided in the Supreme Court
In favor OF the plaintiff. but was re-
heard and reargued.
The court says:
After further argument and a closer
investigation we lave arrived at the
conclusion that there vas error in the
former opinion i'm its reversal of the
judgment of the Superior Court That
judgment ought to have been affirmed.
Now, upon his honor's findings of
facts. the legal question arises, were
school orders issued in 1856 Il debt for
which the county WAS liable. and for
which the Board of Commissioners
could be made to provide by taxation.
We think not THE court then dis
cusses the statutes and procceds.]
From this review of the law in force
when the school orders were issued
upon which the paintiT's Judgments
nln I'M
was complete separation Of the school
funds from the general county fund
upon the apportionmcnt icing made,
and from that time all control Of the
same by the County Commissioners
ceased that the funds were taken
charge of by the treasurer of the Board
of Education under Il separate bond;
that the disbursements were made by
that officer under orders signed by the
school Committees; that cne accounts
OF the school fund were kept between
that officer and the several school COM
mitiees and Il report. yearly, to the
County Board of Education made of
all receipts of school funds by him.
and the amount appor.ioned to each
district was the fund out of which
SCHOOL orders were to be paid. Tho
county therefore. through the Board
of Commissioners. was not liable for
the debt upon which those orders were
issued. If the amount apportionod to
tine district or districts upon whose
committee or committees the orders
were drawn had been in the hands of
the treasurer of the BOARD of Educa-
ton. and he had defauted in their pay
ment, then the law required action for
such defalcation to be instituted
against that officer and his bond. If
there never had been in til, treasurer's
hands any funds to meet those orders,
because they were improperly issucd.
then there was no liability on either the
county or the treasurer But, besides
the view Of this case. as expressed
above. we are of the Grinon that, be-
fore mandamuS can be issued TO COM
pei the Board of Comm ssioners of a
county to levy A tax to pay Il judg-
ment against the Commissioners, the
plaintiff Judgment creditor) must
show aiiirmatively blythe recafd-ef
other competent evidence that the CON
sideration of the debt upon which the
judgment was obtained was of such q
character as to fail under the head of
ordinary or necessary county expenses.
Any other view of the law would ena-
bic Board of County Commissioners
10 levy a tax 10 pay debt reduced to
judgment by confession or by default
which debt, under section of article
OF the constitution, the county would
be prohibited from contra citing, unless
the question was submitted - a vote
OF the qualified voters of the county.
SUCH IL course would, In effect, be a
convenient method, whenever the Coun-
ty Commissioners might choose to do
so, OF destroying n most saiutory pro-
vision of the constitution. ii would be
equivalent to holding that, by a rule Of
pleading, plain provision of the con-
stitution can be abolished. No techni-
cal learning based on the rules of
pleading can force us into such n con-
clusion. The prayer of the petitioners
must therefore. be granted. The case
must be reheard, and the judgment of
this court entered therein at the spring
term, 1898. must be set aside. and judg-
ment entered at this term affirming the
I..1llxx af i1ns-C