Carteret County v. SOVEREIGN CAMP, WOODMEN OF THE W.

• Decision Date: 03 June 1935
• Docket Number: No. 3819.,3819.
• Citation: 78 F.2d 337
• Parties: CARTERET COUNTY et al. v. SOVEREIGN CAMP, WOODMEN OF THE WORLD.
• Court: U.S. Court of Appeals — Fourth Circuit

78 F.2d 337 (1935)

CARTERET COUNTY et al. v. SOVEREIGN CAMP, WOODMEN OF THE WORLD.

No. 3819.

Circuit Court of Appeals, Fourth Circuit.

June 3, 1935.

Julius F. Duncan, of Beaufort, N. C., and Luther Hamilton, of Morehead City, N. C., for appellants.

Charles A. Hines, of Greensboro, N. C. (Rainey T. Wells, of Omaha, Neb., and Hines & Boren, of Greensboro, N. C., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from an order awarding a writ of mandamus against the Board of Commissioners of Carteret county, N. C., commanding them "to levy, assess and collect on and out of the taxable property" within that county sufficient "moneys by way of taxes" to pay a judgment in the sum of $35,550 obtained by the Sovereign Camp of the Woodmen of the World on road and bridge bonds issued by the county. The petition for mandamus alleged that petitioner had obtained the judgment; that demand had been made upon respondents for payment thereof without avail; that respondents had made no provision for any tax levy to pay the judgment or any substantial part of it; that the county had no funds with which to pay the judgment; and that respondents had no intention of providing for the levy and collection of taxes for its payment. A motion to quash the alternative writ of mandamus, issued on the filing of the petition, raised the point that no execution had been issued against the property of the county and that no necessity for the issuance of the writ was alleged; and an answer filed on behalf of respondents admitted the allegations of the petition, but alleged that taxes levied had not been collected and that, through shrinkage of property values, payment of the outstanding indebtedness of the county had become impossible. The court overruled the motion to quash and entered the order awarding a peremptory writ of mandamus on the allegations and admissions of the pleadings; and from this order the commissioners and the county have appealed.

The point chiefly relied on by the appellants is that no execution has been issued against the property of the county and returned unsatisfied. This is not a valid objection, however, for the reason that, under the law of North Carolina, execution may not issue against a county. Gooch v. Gregory, 65 N. C. 142; Lutterloh v. Commissioners, 65 N. C. 403; Hughes v. Commissioners, 107 N. C. 598, 12 S. E. 465, 467; Nicholson v. Commissioners, 121 N. C. 27, 27 S. E. 996; McIntosh, North Carolina Practice & Procedure p. 844. In the Hughes Case, supra, the Supreme Court of North Carolina, after a careful review of the authorities, held that execution would not issue against a county and that the creditor, under the rule generally applicable, would be restricted to the remedy of mandamus in collecting a county debt which had been reduced to judgment. After adverting to the rule in other states, the court said: "But in Gooch v. Gregory, 65 N. C. 142, Justice Dick, delivering the opinion of this court, after announcing that an execution cannot be issued at the instance of a creditor against a county, summarizes the powers granted to counties in North Carolina, and the legislation from which those powers are derived, as follows: `Its power to contract debts and levy taxes is set forth in the constitution. Article 7. Under the act of 1868, c. 20 (Code, § 707, subds. 5, 7), a county may "purchase and hold land within its limits, and, for the use of its inhabitants," may purchase and hold such personal property as may be necessary to the exercise of its powers, and make such order for the disposition or use of its property as the interests of its inhabitants require. Thus it appears, that a county can only acquire and hold property for necessary public purposes, and for the benefit of all its citizens, and the plainest principles of public policy prevent such property from being sold under execution for the advantage of an individual.' The plaintiff could not, therefore, under the rule established by this court, insist upon issuing execution, and selling the railroad stock. It is well settled, also, that ordinarily the only remedy of a judgment creditor of a county is a writ of mandamus to compel its commissioners to levy a tax to pay the debt. * * * Under the general rule, a...