Merchants' Nat. Bank of Dayton, Ohio v. Yancey County

• Decision Date: 01 February 1921
• Court: U.S. District Court — Western District of North Carolina
• Parties: MERCHANTS' NAT. BANK OF DAYTON, OHIO, v. YANCEY COUNTY.

270 F. 834

MERCHANTS' NAT. BANK OF DAYTON, OHIO, v. YANCEY COUNTY.

United States District Court, W.D. North Carolina.

February 1, 1921

Merrimon Adams & Johnston, of Asheville, N.C., for plaintiff.

Hudgins Watson & Watson, of Burnsville, N.C, for defendant.

WEBB District Judge.

This suit in equity was brought by the complainant, the Merchants' National Bank, of Dayton, Ohio, against Yancey County, N.C., for the recovery of two certain sums, to wit:

(1) The sum of $3,400, evidenced by a warrant or voucher dated October 26, 1916, bearing interest 12 months from date at the rate of 6 per cent. per annum, said voucher being in words and figures as follows:

$3,400.00.

No 1281. Burnsville, N.C., October 26th 1916.

The treasurer of the board of road commissioners of Yancey county will pay to the order of the bearer thirty-four hundred dollars, payable twelve months after date at the Hanover National Bank, for New York, N.Y., with interest at 6% per annum.

Done by order of the board on 26th day of October, 1916.

W. B Wray, Chairman.

Countersigned by J. D. Hughes, Secretary.

(2) The sum of $3,819.24, evidenced by warrant or voucher dated December 6, 1916, bearing interest 12 months from date at the rate of 6 per cent. per annum, which voucher is in words and figures as follows:

$3,819.24.

No. 1301. Burnsville, N.C., December 6th, 1916.

The treasurer of the board of road commissioners of Yancey county will pay to the order of the bearer, twelve months after date, three thousand eight hundred nineteen and 24/100 dollars, payable at Hanover National Bank, New York, N.Y., with interest at 6% per annum.

Done by order of the board on 6th day of December, 1916.

W. B. Wray, Chairman.

Secretary.

These warrants or vouchers were purchased or acquired by the complainant in this cause, and the complainant now contends that the defendant, Yancey county, is responsible for their payment and should be compelled to pay them.

The complaint alleges, and the court finds the same to be true, that the said warrants or vouchers were issued by the board of road commissioners of Yancey county for the purpose of taking up and paying outstanding warrants for work, labor, and materials which had been given from time to time in settlement of claims and amounts due for work, labor, and materials furnished to the board of road commissioners of Yancey county to enable said board to construct roads in Yancey county as provided they should do in the act of the General Assembly of North Carolina at its session of 1913 (Pub. Loc. Laws 1913, c. 603), hereafter referred to.

In this connection the court might state that it is admitted that the county of Yancey received the benefit of the items making up the totals of the vouchers sued upon, and that the county of Yancey received the benefit of all the money evidenced by these notes or vouchers.

The complainant contends that the county of Yancey is responsible for the payment of these obligations, and that the county received full value therefor, and that the work, labor, and materials for which said obligations were created have been accepted and used by the county on its public roads and highways and in their construction, building, maintenance, and repair. On the other hand, the defendant contends that it is not responsible in any way for the debts or defaults of the board of road commissioners of Yancey county, because, it contends, the board of road commissioners was a body corporate created by the Legislature of North Carolina at its session of 1913, and that in the act creating this board the board was permitted to issue bonds not to exceed in amount the sum of $150,000. The defendant further contends that, when the vouchers sued on herein were issued by the board of road commissioners, the entire $150,000 bond issue had been realized upon and had been expended, and that any debts or obligations incurred by the board of road commissioners in excess of $150,000 were void and not collectable from the defendant, Yancey county.

The complainant also contends that the Legislature of North Carolina, at its session of 1907 (chapter 193), made it the duty of the county commissioners of Yancey county to levy a special tax every year thereafter of not less than 15 cents on property, and not less than 45 cents on the poll; and the taxes from these levies were to be set apart as a special road fund; and the complainant contends that after the creation by the Legislature of the board of road commissioners of Yancey county said county commissioners of Yancey county failed and refused to levy the special tax provided for in this act, and contends that this county, by its commissioners, should now be compelled to collect enough money by levies under said act to pay this complainant, because, the complainant contends, it was the duty of the county commissioners to levy this tax and turn over the proceeds to the board of road commissioners during the entire existence of said board of road commissioners. As to this contention, the defendant says that the act of the General Assembly of 1913 creating the board of road commissioners of Yancey county repealed the act of 1907, and therefore the county commissioners of Yancey county were not required to levy the special tax mentioned in said act of 1907.

In view of these contentions, it might be well to state briefly what these two acts of the Legislature now under consideration provided. As stated above, the act of 1907 made it the duty of the county commissioners to levy a special tax every year thereafter of not less than 15 cents on property and not less than 45 cents on the poll; the proceeds from said levy to be set apart as a special road fund.

The act of 1913 created one D. M. Buck and others a board of road commissioners of Yancey county. This board was constituted a body corporate and given all the power and authority granted to corporations of like nature by the laws of North Carolina, and was given power to sue and be sued, to make contracts, and such other powers as are necessary to carry out any and all the provisions of the act. The act made it the duty of the board to take charge of the working, repairing, and maintaining, altering, and construction of any and all roads of Yancey county at that time maintained by the county as public roads, and the board was vested with all the power, rights, and authority to be vested in the board of county commissioners of Yancey county for the general supervision of the roads of said county and the construction and repair thereof. The board was also authorized and empowered in its discretion to issue bonds of Yancey county for the construction and repair of more roads in said county, not to exceed the sum of $150,000. The bonds were to be coupon bonds of such denominations as the board saw fit to make them, to bear 6 per cent. interest, and to be styled 'Yancey county good roads bonds.' Same were to be payable and redeemable at some time, not to exceed 41 years from time of issue, as the board might determine. A sinking fund to pay these bonds and interest was also provided for, and a special tax for such purpose. The board was also authorized to pay for and acquire tools, implements, teams, etc., and to condemn land, and also to employ labor and make contracts for any portion of any road under construction or repair.

In accordance with this act the board of road commissioners did issue a total of $150,000 of these bonds, but before doing so a suit was brought by the commissioners of Yancey county to prevent the issuance of the bonds, on the ground that the act creating the board of road commissioners was unconstitutional. The Supreme Court held the act constitutional (Commissioners v. Road Commissioners, 165 N.C. 632, 81 S.E. 1001), and the board of road commissioners proceeded to build roads in Yancey county.

The Legislature at its session of 1917 (chapter 113) repealed the act creating the board of road commissioners of Yancey county, with no saving clause except to declare the $150,000 of bonds to be a valid debt.

Now the question is: Is the county of Yancey responsible for debts contracted by the board of road commissioners in excess of the $150,000 bond issue authorized? I am of opinion that the act of 1913 creating the board of road commissioners of Yancey county in its broad, comprehensive, and detailed terms repealed the act of 1907 (chapter 193), county, were not required to levy a special tax to be turned over to the and therefore the commissioners of Yancey county, representing the board of road commissioners of Yancey county during the existence of said board of road commissioners.

It is a general principle of law that, when a later statute is enacted covering the entire ground of the subject-matter (in this case the construction and...