Leonard v. Sink

• Decision Date: 18 December 1929
• Docket Number: 410.
• Citation: 150 S.E. 813,198 N.C. 114
• Parties: LEONARD, County Manager and Accountant, et al. v. SINK, Sheriff, et al.
• Court: North Carolina Supreme Court

150 S.E. 813

198 N.C. 114

LEONARD, County Manager and Accountant, et al. v. SINK, Sheriff, et al.

No. 410.

Supreme Court of North Carolina

December 18, 1929

Appeal from Superior Court, Davidson County; Clement, Judge.

Mandamus by C. H. B. Leonard, County Manager and Accountant for Davidson County, and others, against Fred C. Sink, Sheriff of Davidson County, and others. Judgment for plaintiffs, and defendants appeal. Reversed.

This is an application for writ of mandamus, under C. S. § 866 brought by plaintiffs against defendant Fred C. Sink, sheriff of Davidson county.

The court below found the following allegations in the complaint to be true:

"1. That C. H. B. Leonard is the duly elected County Manager and County Accountant for Davidson County with such powers and duties as are prescribed for County Managers as set forth in chapter 91 of the Public Laws of North Carolina of 1927.

"2. That C. M. Hoover is Chairman, L. W. DeLapp, C. A. Hoover M. R. Harris and R. S. Owen are the duly elected Board of Commissioners of Davidson County, and as such has the powers and duties as conferred upon County Commissioners as set forth in article 2, chapter 24 of the Consolidated Statutes of North Carolina (sections 1292-1302).

"3. That Fred C. Sink is the duly elected Sheriff of Davidson County and as such has the duty of collecting the taxes and paying the same to the County Treasurer.

"4. That under chapter 246 of the Public Local Laws of North Carolina of 1919 the sheriff of Davidson County was required under section 1 to perform certain duties, which section is in words and figures as follows: 'Section 1. That the sheriff of Davidson County shall turn over, and pay to the governing boards of any incorporated cities or towns in Davidson County fifty per cent. (50%) of all taxes levied and collected for road purposes from the property and polls within such incorporated cities or towns respectively.' That under and by virtue of said Act, among other things it was directed that the amount so collected should be paid to the Treasurer of the said incorporated cities and towns in Davidson County.

"5. That Public-Local Laws of North Carolina of 1925, chapter 299, was duly passed by said Legislature and among other things and specifically section 6 of said Act provides in words and figures as follows: 'Sec. 6. That all sums of money paid to the board of county commissioners by the board of road commissioners on and after the thirty-first day of March, nineteen twenty-five, and all taxes and all other funds applicable to the road funds of Davidson County, that may be collected in the future, shall be deposited with the county treasurer, which fund shall be handled in the same manner and form provided for other county funds: Provided, that all funds collected for road purposes shall be kept separate and apart from other county funds.' That section 7 of said Act provides in part that the said Board of County Commissioners shall use the funds arising from taxation and from every source to construct, improve and maintain the public highways of said county.

"That the entire chapter 299 of the Public-Local Laws of North Carolina of 1925 is hereby pleaded in this action in as full and ample manner as if the same were written herein.

"6. That on March 21st, 1929, C. H. B. Leonard, County Manager and County Accountant, under and by virtue of his duties as set forth in Chapter 91 of the Public Laws of North Carolina of 1927 and for the County Commissioners of Davidson County, addressed the following letter to Fred C. Sink, Sheriff of Davidson County:

"'Mr. Fred C. Sink, Sheriff of Davidson County, Lexington, N.C. Sir: Please advise me whether or not you are going to continue to pay into the County Treasury, as you have been doing, all the funds collected for road purposes in this County. Yours very truly, C. H. B. Leonard, County Manager and County Accountant.'

"That on the same days as above set forth, C. H. B. Leonard as County Manager and County Accountant, received the following reply from Fred C. Sink, Sheriff of Davidson County:

"'Mr. C. H. B. Leonard, County Manager and Accountant, Dear Sir:--Replying to the above, beg to advise that I am not going to continue to pay all funds collected for road purposes into the County treasury.

"Yours very truly, Fred C. Sink, Sheriff." D'

The court below further found: "That the defendant Fred C. Sink, Sheriff of Davidson County, as admitted in the answers, is now keeping in his possession 50% of the said road funds collected in these said cities and towns for the use and benefit of said cities and towns respectively and to be paid over to their respective treasurers, and has refused to pay the same over to the Treasurer of Davidson County as provided in chapter 299, Public-Local Laws of North Carolina, 1925."

The court below rendered the following judgment: "It is hereby ordered, adjudged and decreed that the defendant, Fred C. Sink, Sheriff of Davidson County, be and he is hereby ordered and directed by this court to pay and turn over to the Treasurer of Davidson County all taxes and funds applicable and belonging to the road funds of Davidson County, which he has collected or may in the future collect, and specifically including any and all taxes and funds in dispute in this action, and that the plaintiff recover their costs expended in this action to be taxed by the Clerk."

The city of Lexington, city of Thomasville, and town of Denton have not received 50 per cent. of the tax collected out of their respective municipalities for street improvement, and were made parties to the action.

The defendants excepted, assigned error, and appealed to the Supreme Court.

Raper & Raper, of Lexington, H. R. Kyser, of Thomasville, and Phillips & Bower, of Lexington, for appellants.

Walser & Walser and Spruill & Olive, all of Lexington, for appellees.

CLARKSON J.

For a decision of this controversy, we have to consider the local road law applicable to Davidson county:

(1) The first local law of county-wide application is chapter 334, Public-Local Laws 1915. This act created "The Board of Road Commissioners of Davidson County," and invested it with all the powers, rights, and authority which was theretofore exercised and vested in the board of county commissioners of Davidson county. A general supervision and control was given the road commissioners to construct, repair, and maintain the roads of the county. Authority was given to issue $300,000 of bonds. The act was a comprehensive system to construct, improve, and maintain the roads of the county and a tax for this purpose to be levied each year of not more than 30 cents on the $100 valuation of real and personal property and not exceeding 90 cents on the poll, and a treasurer was to be designated by the act to handle the road funds. Under section 19 of this act, provision is made to distribute the work of improving and constructing the highways of the county in each township as equitably as practicable, having due regard to taxable property in each township. In section 24 it is provided that the road taxes shall be expended in such a way and at such times according to the needs of the roads in each township. This law was amended and additional power given, and the act made more complete. Chapter 50, Public-Local Laws 1917. Then again, Public-Local Laws 1917, c. 129, § 4, reads: "That the board of road commissioners may work any necessary road through any incorporated towns of the county necessary to connect the main highways in the county," etc.

Chapter 233, Public-Local Laws 1919, part section 1, "And in addition to the taxes now authorized to be levied under existing laws" increased the tax 30 cents making 60 cents on the $100 valuation, $1.80 on poll.

Chapter 246, Public-Local Laws 1919, § 1: "That the sheriff of Davidson County shall turn over, and pay to the governing boards of any incorporated cities or towns in Davidson County fifty per cent. (50%) of all taxes levied and collected for road purposes from the property and polls within such incorporated cities or towns respectively.

"Sec. 2. That the amounts so collected and paid to the governing boards of such cities and towns shall be paid to the treasurers of the same, and shall be a separate fund to be used for building and improving, and maintaining the streets, of such towns or cities, or at the discretion of the governing bodies, every such cities and towns to pay the interest of bonds issued for permanent streets of said cities and towns respectively.

"Sec. 3. That the board of road commissioners of Davidson County shall not have authority or power to expend any further portion of the road funds of the county for work in said cities or towns."

Chapter 117, Public-Local Laws 1923, provides that the tax to be levied shall not exceed 35 cents on the $100 valuation of taxable property. The tax was reduced from 60 cents to 35 cents.

Of chapter 299, Public-Local Laws 1925, the caption is as follows: "An Act to provide for the construction and maintenance of roads and bridges in Davidson County." Section 2: "That it shall be the duty of the said board to take charge of the working, maintaining, altering and constructing of any and all roads and bridges in Davidson County now maintained by the county as public roads and it is hereby vested with all powers, rights and authority now vested in the board of road commissioners of Davidson County for the general supervision of roads of said county and for the construction and repairing thereof." Section 6 ""That all sums of money paid to the board of county commissioners by the board of road commissioners on and after the thirty-first day of March, one thousand nine hundred and twenty-five, and all taxes...