Bear v. Commissioners of Brunswick County

• Decision Date: 21 March 1899
• Citation: 32 S.E. 558,124 N.C. 204
• Parties: BEAR v. COMMISSIONERS OF BRUNSWICK COUNTY.
• Court: North Carolina Supreme Court

32 S.E. 558

124 N.C. 204

BEAR v. COMMISSIONERS OF BRUNSWICK COUNTY.

Supreme Court of North Carolina

March 21, 1899

On rehearing. Affirmed.

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

Faircloth C.J., and Furches, J., dissenting.

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 filed 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; 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 by the pleadings; and the defendants, in their answer, had admitted that the judgments had been obtained by the plaintiff, as set out in his complaint. The plaintiff, having failed to plead his judgments in estoppel of the matter set out in the answer, or to demur to the answer, waived his rights as to any advantage which the law had given to his position, and by his agreement to submit the facts to the finding of the court went to the hearing on the merits of the original consideration upon which the judgments were granted. "Numerous decisions in this country and England hold that where a party has an opportunity to plead an estoppel, and voluntarily omits to do so, but goes to the issue on the facts, he thereby waives the estoppel, and the jury is at liberty to find according to the facts of the case. So, where the advantage might have been taken of an estoppel by means of a demurrer, and the party fails so to take advantage of it, he will be held to have waived the estoppel." 8 Am. & Eng. Enc. Law, p. 13, and cases there cited. If the plaintiff intended to avail himself of the full benefit and effect of his judgments, it was incumbent on him to do so by some proper pleading because of the nature of the defendants' answer, for, though mandamus is in the nature of an execution, yet it is in the nature of a civil action. It is commenced by summons, and the pleadings and the practice are the same as are prescribed for the conducting of civil actions. 1 Code. § 623. His honor found as a fact upon the evidence, none of which was objected to, that the original judgments were obtained upon certain school orders issued during the year 1886, and that the judgments of 1894 in the superior court were the same judgments which were obtained before the justice of the peace in 1888, and that there was nothing in the record or judgment of 1894 to show what the cause of action was, except that they were brought on former judgments.

Now upon his honor's findings of fact, the legal question arises, were school orders issued in 1886 a 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 law in force at the time when the school orders upon which the plaintiff's action was brought were issued was 2 Code, c. 15, as amended by chapter 174, Acts 1885. Section 2551 of the Code provides that the county board of education shall, on the first Monday in January of each year, apportion among the several districts all school funds, specifying how much of the same is apportioned to each race, and give notice thereof to the school committees of the several districts of the county. It is further provided in the same section that the sums thus apportioned to the several districts shall be subject to the orders of the school committees thereof, for the payment of the school expenses authorized by law. In section 2555 of the Code it is provided that "all orders upon the treasurer of the county board of education for school money for the payment of teachers, duly countersigned by the county superintendent of public instruction, and all orders for the purchase of sites for school houses and for the cost of building, repairing and furnishing school houses, shall be signed by the school committee of the district in which the school is taught, or in which the site or school house is situated, which orders, duly endorsed by the person to whom the same are payable, shall be the only valid vouchers in the hands of the treasurer of the county board of education, to be paid out of the funds apportioned to the district in which the school house is erected." The county treasurer of each county was required to receive and disburse the public school funds, not under his general bond, but under a separate bond, conditioned for the faithful performance of his duties are treasurer of the county board of education. The county board of education were empowered, if they deemed it necessary, to require the treasurer of the county board of education to strengthen his bond, and for any breach of that bond action was to be brought, not by the county commissioners, but by the county board of education. 2 Code, § 2554. The treasurer of the county board of education was required to open accounts with each public school district, and report yearly to each school committee the amount apportinoned to the respective districts for the year, and to the county board of education the amounts received from all sources for public-school purposes. From this review of the law in force when the school orders were issued upon which the plaintiff's judgments...