Cromartie v. Commissioners of Bladen

• Decision Date: 31 October 1882
• Citation: 87 N.C. 134
• Court: North Carolina Supreme Court
• Parties: DUNCAN CROMARTIE v. COMMISSIONERS OF BLADEN.

87 N.C. 134

DUNCAN CROMARTIE

v.COMMISSIONERS OF BLADEN.

Supreme Court of North Carolina.

October Term, 1882.

OPINION TEXT STARTS HERE

RULE on defendants to show cause why they should not be attached for contempt in failing to obey a writ of mandamus, heard at Fall Term, 1882, at BLADEN Superior Court, before Gilmer, J.

When this cause was here on a former appeal at October term, 1881, it was upon such a defective finding of facts that the court were unable to dispose of the controversy upon its merits, and it was remanded. (See 85 N. C., 211. After its return to the superior court of Bladen, it was by order of the court, without objection, referred to G. F. Melvin, the clerk, to hear such evidence as the parties may submit before him, and to report such evidence, together with his findings of fact thereon, to the court at the next term. The referee accordingly proceeded to take depositions bearing upon the subject matter in the presence of both parties, and made his report with the evidence to fall term, 1882. The facts found by him are in substance as follows:

The debt due the plaintiff was based on county orders taken up by him, and disallowed upon his settlement, as treasurer, for want of county funds which could be legally appropriated to their payment, and the indebtedness for which the orders were issued was contracted after the adoption of the constitution in 1868, and prior to January 1st, 1877.

The county commissioners on the first Monday in August, 1880, for the fiscal year thence ensuing, during which the original mandamus in the case was sued out, levied for for county purposes a tax of 34 1/3 cents upon every hundred dollars on the valuation of taxable property, real and personal, being, with that levied by the general assembly for state objects for the same year, up to the full limits of 66 2/3 cents allowed by the constitution to be levied for both.

This levy and the receipts from other sources for the general fund, aggregate the sum of $5,093.83, whereof has been expended during the year the sum of $3,087.30, in payment of current demands, which in detail are set out in an accompanying exhibit; and these are all found to be necessary and economical. There were also outstanding liabilities for court costs incurred at fall term, 1880, and that succeeding, which have been since paid, $249 more. Since December 1st, 1876, about the commencement of the term of service of the defendants as county commissioners, the county government has been honestly and economically conducted.

The court house and county jail are out of repair, the latter unsafe for the custody of prisoners and needing two iron cages, for which the sum of $2,800 is estimated to be necessary, and several bridges need reparation at a cost of $150 or $200, and it was the intention of the commissioners to appropriate of the taxes of 1880 a sufficient sum for these objects.

In 1876, soon after entering into office, the commissioners applied to the general assembly for authority to levy a special tax to meet the county indebtedness, of which that due the plaintiff was part, and were refused; and they afterwards procured the passage of the act of 1879, ch. 162, which authorized the funding of the floating debt upon a compromise with creditors, and the issuing of bonds therefor, the interest on which was to be provided for, and a sinking fund for the ultimate redemption of the principal, by a special tax not to exceed 24 cents on the hundred dollars value of property in any one year; and a board of audit was constituted to adjust the claims for which the commissioners were to issue bonds.

An effort was made to give practical effect to this legislation, but it proved unavailing, the creditors refusing their assent to its provisions.

The valuation of the taxable property of Bladen in 1880 was $1,310,769 and upon this sum was assessed the taxes for that year, up to the maximum allowed by law. The public buildings are still in pressing need of the repairs mentioned.

To the report numerous exceptions were taken by the plaintiff, most of them to the insufficient findings of fact, which we do not propose to consider specifically, since in our opinion the report is ample and furnishes all the information needed to pass upon the conduct of the commissioners, and their legal ability to comply with the mandate for the disobedience of which they are called on to answer.

Upon the hearing of the exceptions and the arguments of counsel, the court overruled the exceptions and confirmed the report, and proceeded to adjudge that the rule against the defendants to show cause why they should not be attached for contempt, be discharged; that the plaintiff's application for an alias peremptory writ of mandamus be refused; that the clerk pay over to the county treasurer the moneys in his hands to wit, $2,000, held under an order of spring term, 1881, and that the defendants recover their costs of plaintiff-- the cause being retained for further proceedings and directions.

From the rulings upon the exceptions and the judgment rendered, the plaintiff appeals.

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

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

SMITH, C. J., after stating the above.

When the cause was before us on the former appeal, and the facts upon which the culpability imputed to the defendants depended were insufficiently developed for us to decide upon the contempt, we used this language in the opinion: “It is manifest that where the public interests conflict with private interests, the latter must yield. If the entire fund which can be raised by taxation is required to meet the necessary expenses of an economical administration of the county government, and none can be diverted to pay its indebtedness without serious detriment to the public, none...