Bear v. Comm'rs Of Brunswick County

Citation124 N.C. 204,32 S.E. 558
CourtUnited States State Supreme Court of North Carolina
Decision Date21 March 1899
PartiesBEAR. v. COMMISSIONERS OF BRUNSWICK COUNTY.

32 S.E. 558
(124 N.C. 204)

BEAR.
v.
COMMISSIONERS OF BRUNSWICK COUNTY.

Supreme Court of North Carolina.

March 21, 1899.


Judgment — Estoppel — Waiver — Mandamus— Schools—Counties—Constitutional Law—

Tax Levy—Necessary Expenses.

1. Where, in mandamus to compel payment of a judgment, plaintiff omits to plead his judgment in estoppel of the defense that it was based on an invalid claim, and goes to the hearing on the merits of the original claim, he waives the estoppel.

2. Under 2 Code, § 2551, requiring the county board of education each year to apportion among the several districts all school funds which were subject to the orders of the school committees for school expenses, to be disbursed by the county treasurer under a separate bond as treasurer of the county board, the control of the county commissioners over the school funds ceased, and hence a judgment against them, based on school orders, was void.

3. Under Const, art. 7, § 7, prohibiting levy of a tax by a county except for necessary expenses, unless by vote of a majority of the voters, mandamus will not lie to compel levy to pay a judgment against a county, unless the debt on which the judgment was based is affirmatively shown to be a necessary county expense.

Faircloth, C. J., and Fnrehes, J., dissenting.

On rehearing. Affirmed.

For former opinion, see 29 S. E. 719.

E. K. Bryan and Frank McNeill, for petitioners.

J. D. Bellamy and Shepherd & Busbee, for respondent

MONTGOMERY, J. This case is before us on a petition to rehear, the first opinion having been tiled at the spring term, 1898, and published in 122 N. C. 434, 29 S. E. 719. After further argument, and a closer investigation, we have arrived at the conclusion that there was error in the former opinion in its reversal of the judgment of the superior court. That judgment ought to have been affirmed. The plaintiff, in his complaint, alleged that the defendants were indebted to him in the sum of — dollars, due by eight judgments originally had in a court of a justice of the peace, and afterwards docketed by transcript in the office of the clerk of the superior court of Brunswick county, and prayed judgment that the defendants be compelled to levy a tax to pay the judgments and costs. The defendants, In their answer, admitted that the judgments were procured as alleged, but averred that they were not valid and binding against the defendants, for the reason that they were obtained against a former board of commissioners on school claims, for which neither the defendants nor their predecessors were liable in law. The defendants further aver that the judgments were obtained on certain school orders issued about the year 1886 by the school committee men of certain school districts of Brunswick county upon the treasurer of the county board of education, and that they were not a valid charge against the defendants, the board of commissioners, or a charge upon the public funds of the county, or upon any other fund except those expressly set apart for school purposes. And for a further defense the defendants aver that section 7 of article 7 of the constitution of North Carolina prohibits any tax from being collected or levied by any county, city, or town, or other municipal corporation, except for the necessary expenses thereof, unless by a vote of the majority of the qualified voters therein;

[32 S.E. 559]

and the defendants aver that the consideration upon which the Judgments were had was not for the necessary expenses of the county, or for a debt contracted in the manner provided by the constitution. When the case came on for trial, a jury trial was waived, and it was agreed that his honor who presided should find the facts, and the case was heard by the court by the consent of counsel of the plaintiff and of the defendants. What facts could have been in the mind of the counsel except the facts connected with the consideration of the claims on which the original judgments were procured, and those connecting the judgments of 1894, docketed in the superior court by transcript as being the same judgments which were originally rendered by the justice of the peace in 1888? No other facts could have been referred to, for they were raised...

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