Cromartie v. Comm'rs of Bladen

• Decision Date: 31 October 1881
• Citation: 85 N.C. 211
• Court: North Carolina Supreme Court
• Parties: DUNCAN CROMARTIE v. COMMISSIONERS OF BLADEN.

85 N.C. 211

DUNCAN CROMARTIE

v.COMMISSIONERS OF BLADEN.

Supreme Court of North Carolina.

October Term, 1881.

RULE upon the defendant commissioners to show cause why they should not be attached for contempt, heard at Spring Term, 1881, of BLADEN Superior Court, before Gudger, J.

The defendants appealed from the ruling below.

Messrs. W. A. Guthrie and T. H. Sutton, for plaintiff .

Messrs. D. J. Devane and C. C. Lyon, for defendants .

SMITH, C. J.

The plaintiff having sued, and at spring term, 1875, recovered judgment against the board of county commissioners of Bladen for the sum of $4,760, with interest thereon from February 5th preceding, to enforce the payment thereof applied for and obtained a writ of mandamus commanding the commissioners, as soon as permitted by law, to levy and collect a sufficient tax to discharge the debt. The process issued on December 25th, 1879, and was returnable and returned to spring term following. To this mandate the commissioners answered that they were only authorized by law, with a concurrence of a majority of the justices of the peace sitting with them, to levy taxes on the first Monday in August, and had been unable to comply with the directions of the writ since it was issued. At fall term, 1880, they made further answer and say that they have levied the maximum tax allowed under the constitution upon the taxable property in the county, from which would be realized about $4,000, according to their estimates, all of which was needed to meet the ordinary expenses of the county government for the current fiscal year, and necessary reparation of the public buildings and bridges.

At spring term, 1881, a rule, supported by affidavits of the plaintiff and others, was granted by the presiding judge against the commissioners personally, requiring them to appear before him instanter, and show cause, if any they have, why an attachment should not issue against them for contempt in failing to obey the command of the writ, to which rule the chairman of the board, W. J. Parker, on behalf of himself and associates, responds and says:

The commissioners did on August 1st, 1880, levy a tax on the real and personal estate in their county subject to taxation, to the full limits allowed by law, to-wit, for school purposes 8 1/3 cents and for county expenses 34 1/3 cents on every one hundred dollars valuation, and $1.28 upon each taxable poll for the school and pauper fund. The nett amount expected to be raised from the assessment upon property will be $4,630.38, whereof has been already disbursed by the treasurer $532.76, and $2,472.55 remains in the collector's hands.

The expenses to be provided for during the year out of this fund are:

+-----------------------------------------------------------------------------+
                ¦For costs incurred upon nol. pros.   docket of fall term, 1880,        ¦$ 200¦
                +-----------------------------------------------------------------------+-----¦
                ¦For costs of holding the present term of the court,                    ¦1,200¦
                +-----------------------------------------------------------------------+-----¦
                ¦For costs mileage and per diem of the commissioners,                   ¦300  ¦
                +-----------------------------------------------------------------------+-----¦
                ¦For costs payment of fees due the clerk,                               ¦300  ¦
                +-----------------------------------------------------------------------+-----¦
                ¦For costs estimated jail charges $250, necessary repairs $300, and cost¦1,750¦
                ¦of providing an iron cage therein $1,200,                              ¦     ¦
                +-----------------------------------------------------------------------+-----¦
                ¦For costs repairs of court house $400, and of bridges $200,            ¦600  ¦
                +-----------------------------------------------------------------------+-----¦
                ¦For costs other unascertained costs for taking tax list and holding    ¦300  ¦
                ¦August election, estimated at                                          ¦     ¦
                +-----------------------------------------------------------------------+-----¦
                ¦Making in the aggregate,                                               ¦$    ¦
                ¦                                                                       ¦4,650¦
                +-----------------------------------------------------------------------------+
                

The fund in the treasury on March 1st, 1881, was for general purposes $1,625.11, and not the larger sum stated in the plaintiff's affidavit.

Upon the coming in of this response, without inquiry or reference to ascertain the correctness of its specifications or the necessity and reasonable cost of the expenditures for the proposed objects, so far as we can see from the record, his Honor finds as a fact that no steps had hitherto been taken towards the reparation of the public buildings and bridges, and that all accruing demands on the treasury to that date had been met, except the expenses of the pending term and the nol. pros. docket and the sum of $75 to be paid under a contract for a bridge, that the available county means in possession of the treasurer were for public schools derived from the property tax, $2,033.47; and the poor from the poll tax, $236.86; general county purposes, $1,625.11; and to be collected and paid in by the sheriff for the same objects, to wit, public schools, $662.95; poll tax, $827.45; general county fund, $2,472.45. And the court thereupon made the rule absolute and adjudged that the several defendants be each committed to the custody of the sheriff and be by him imprisoned in the common jail until they pay to the plaintiff out of the general fund in the county treasury the sum of $1,000, and deliver to him an order on the sheriff for a further like sum to be paid out of the taxes which have or may come into his hands, and that an alias writ of mandamus issue returnable to the next term, commanding the commissioners to levy and collect a sufficient tax to pay the residue of the plaintiff's demand.

From this judgment the defendants appeal, and the plaintiff objecting to the appeal in the court...