Brown v. Walker
| Decision Date | 21 June 1924 |
| Docket Number | 582. |
| Citation | 123 S.E. 633,188 N.C. 52 |
| Parties | BROWN v. WALKER ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Jackson County; Bryson, Judge.
Action by F. A. Brown, for himself and all other taxpayers of the town of Sylva, against James E. Walker, the Tuckaseegee & Southeastern Railroad Company, and others. From judgment against defendant railroad company, it appeals. Affirmed.
When officials of municipal corporation refuse or neglect to sue for recovery of funds misappropriated action therefor may be maintained by resident taxpayers for benefit of municipality without making officials entitled to custody of funds parties', incorporation of direction in judgment that money recovered be paid into clerk's office for use of proper authorities being sufficient.
A very satisfactory statement, showing the nature of the controversy and the position of appellant as to the conduct of the trial appears in the case on appeal as follows:
"This was a civil action brought by the plaintiff on behalf of himself and other taxpayers of the town of Sylva, against the appellant, Tuckaseegee & Southeastern Railway Company James E. Walker, Blackwood Lumber Company, Inc., Dan Tompkins, mayor, T. O. Wilson, secretary and treasurer Claud Allison, F. N. McLain, Geo. L. Painter, and C. Z. Candler.
The defendant, James E. Walker, and his associates, at the time referred to in the pleadings, had become the owners of a large boundary of timber in the upper end of Jackson county and were proposing in the summer of 1920 to build a public carrier railroad from some point on the Southern Railway Company's line up Tuckaseegee river to East La Porte; a distance of some 14 miles. At the time referred to it had not been determined whether the starting point from said road should be Sylva, the county [site] of Jackson county, or Dillsboro, a town on the Southern to the west of Sylva. The people of Sylva, in order to induce these parties to make Sylva the starting point for their road, about the 12th of July, 1920, held a mass meeting when the mayor and board of aldermen of the town of Sylva were present and in session, and passed the resolution appearing in the record, authorizing the town of Sylva to appropriate $5,000 for the purpose of purchasing rights of way to be donated to the said Walker and his associates as an inducement to them to make Sylva the starting point for their said road.
The defendant, James E. Walker, was invited to attend said meeting, and thereafter, after the town had passed the resolution appearing in the record, he and his associates agreed that by reason of said inducement they would make the said town of Sylva the starting point for said road, and thereupon the said James E. Walker signed the agreement appearing in the record, binding himself to reimburse the said town of Sylva for any moneys that might be expended by them in payment for rights of way in case said railroad should not be built from the said town of Sylva. Thereafter the said railroad was built and from the time the same was completed, has been, and is now being operated through Jackson county as a common carrier.
It appears from the testimony that the passage of said resolution and the donation therein called for to be expended for rights of way was the material inducement which caused the said Walker and his associates to determine upon the town of Sylva as the starting point for said road.
Such rights of way as were paid for by the town of Sylva were conveyed to the said James E. Walker, as trustee, and thereafter the same were conveyed by him to the defendant, Tuckaseegee & Southeastern Railway Company, the appellant in this case.
The plaintiff was present and participated in the mass meeting referred to. Neither the plaintiff nor any other citizen of the town of Sylva made objection to said appropriation, and thereafter, some 22 months after the money so donated had been expended and said railroad built, the plaintiff instituted this action, to wit, on the 18th day of August, 1922. The defendants the mayor and the board of aldermen answered the complaint and pleaded, among other things, the statute of limitations, as provided in subsection 1 of section 443 of the Consolidated Statutes, on the ground that if the donation of said money was an unauthorized act, such was a trespass under color of office, and that, therefore, an action on account thereof must have been commenced within one year after the acts complained of.
The defendants, other than the defendants mayor and board of aldermen, duly filed their answer and pleaded, among other things, the statute of limitations, as provided by subsection 1 of section 443 of the Consolidated Statutes, therein and on the trial, insisting that if the appropriation of said money by the defendants mayor and board of aldermen of the town of Sylva was a trespass under color of office, and therefore barred by the one year statute of limitations, as provided in said section of Consolidated Statutes, the said defendants were in like manner entitled to avail themselves of such plea of the statutes for that they accepted the rights of way purchased with the money so donated as an inducement to make the said town of Sylva the starting point for their said railroad, and for that they were in privity with the defendants mayor and board of aldermen.
At the conclusion of the evidence, on motion of the defendants, Jas. E. Walker and Blackwood Lumber Company, Inc., his honor sustained a nonsuit as to them, whereupon his honor directed a verdict in favor of the defendants mayor and board of aldermen on the plea of the statute of limitations, and thereupon directed a verdict against the defendant Tuckaseegee & Southeastern Railway Company, on said statute of limitations, to which said charge the defendant Tuckaseegee & Southeastern Railway Company excepted.
Upon the conclusion of the trial it was agreed in open court that his honor might find certain of the facts and render his findings and judgment out of term and outside of Jackson county; whereupon, to wit, on the 7th day of January, 1924, he filed in the office of the clerk of the superior court of Jackson county the findings and judgment appearing in the record."
That among the pertinent facts found by his honor pursuant to the agreement of the parties are the following:
"Ninth. That, pursuant to said resolution, the board of aldermen of the town of Sylva, during the months of July, August, September, and October, 1920, diverted the said sum of $5,000 from the treasury of said municipality and from the public funds thereof, and expended, or caused the same to be expended in the purchase of rights of way necessary for the construction of a railroad from the line of the Southern Railway near Sylva to the Tuckaseegee river, making such expenditures in accordance to the resolution aforesaid, and duly assigned the same to James E. Walker as trustee, or caused them to be executed to him in such capacity.
Tenth. That the said James E. Walker, as trustee in turn, assigned said rights of way so secured and paid for to the Tuckaseegee & Southeastern Railway Company, which immediately entered upon the construction of said railroad and continued in the construction thereof until the same was completed from Sylva to East La Porte some time less than one year prior to the institution of this action, on the 18th day of August, 1922.
Eleventh. That in passing said resolution and applying said sum of $5,000 to the purchase of the said rights of way and assigning the same to James E. Walker, trustee, the board of aldermen were acting without authority of any special act of the Legislature, and without submitting the same to a vote of the qualified voters of the town of Sylva, and the said sum was not expended for a public necessity.
Twelfth. That the donation of the said rights of way was a material inducement to the Tuckaseegee & Southeastern Railway Company to build its railroad from the said town of Sylva and not from some other point.
Thirteenth. That the act of the said aldermen in the purchase of the said rights of way and their assignment was without consideration paid to them by the defendants, Walker or the Tuckaseegee & Southeastern Railway Company, or the Blackwood Lumber Company, or any one for them, being a...
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