O'Neal v. Wake County

• Decision Date: 17 October 1928
• Docket Number: 255.
• Parties: O'NEAL v. WAKE COUNTY et al.
• Court: North Carolina Supreme Court

145 S.E. 28

196 N.C. 184

O'NEAL v. WAKE COUNTY et al.

No. 255.

Supreme Court of North Carolina

October 17, 1928

Appeal from Superior Court, Wake County; Cranmer, Judge.

Action by W. N. O'Neal against Wake County and others. From a judgment sustaining demurrers of two defendants, plaintiff appeals. Affirmed.

Suit to recover damages for alleged breach of contract. The plaintiff alleged that in the early part of 1921 an outbreak of lawlessness occurred in New Light township, resulting in the burning of a church and several residences and schoolhouses and that on May 9, 1921, the defendants held a joint meeting in the courthouse in Wake county, in which "it was agreed to ask the plaintiff to obtain evidence against the parties guilty of said burning," and that one-third of the plaintiff's "salary" should be paid by Wake county, one-third by the county board of education of Wake county, and one-third by the insurance department of the state of North Carolina. He alleges that the defendants agreed to make no record of their action, and that on June 3 1927, the contract was acknowledged in the following paper:

"State of North Carolina, Wake County.

"This is to certify that we, the undersigned, did, in May, 1921, duly appoint W. N. O'Neal to act as special detective in obtaining evidence against the party or parties connected with the burning of Sear's schoolhouse, Story Hill schoolhouse, and West Grove Church, and Sunrise Library, and that we would pay said O'Neal a fair salary for his services. It was understood at the time of the appointment that no record of the appointment should be made as this might hinder the work as detective. It was also understood that the board of education would pay one-third of the salary allowed said O'Neal, the county commissioners one-third, and Mr. Stacy Wade, in behalf of the state, one-third.

"This June 3, 1927.

"N. Y. Gulley. O. L. Ray, M. D.

"M. B. Chamblee. E. T. Scarborough.

"R. P. Jones. H. D. Rand.

"Stacy W. Wade, Insurance Com'r.

"Witness:

"W. J. Simpson, J. P., to all names except the first and last ones."

It is further alleged that for six years the plaintiff gave his time to the performance of his agreement, that the guilty parties were convicted, and that he is entitled to recover for his services the sum of $9,000. The county board of education filed an answer, and the other defendants demurred to the complaint. The demurrers were sustained, and the plaintiff excepted and appealed.

Mills & Mills, of Raleigh, for appellant.

Le Roy L. Massey, of Zebulon, for Wake County.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for Insurance Department.

ADAMS J.

The demurrers admit the complaint, but deny its sufficiency in law to constitute a cause of action. Sandlin v. Wilmington, 185 N.C. 257, 116 S.E. 733. Wake county demurs on the ground that it is sued in its corporate capacity and that there is no allegation in the complaint of a corporate contract, or, differently expressed, that the cause of action, if a sufficient cause is alleged, is against individuals and not against the county as a corporate entity.

In North Carolina every county is a body politic and corporate; it may exercise the powers which are prescribed by statute and those which are necessarily implied by law, and no others; and these powers can be exercised only by the board of commissioners or in pursuance of a resolution which it adopts. C. S. §§ 1290, 1291, 1297; Dare v. Currituck, 95 N.C. 189; Manuel v. Com'rs, 98 N.C. 9, 3 S.E. 829. The implied powers are such as are necessarily or reasonably implied from those expressly granted or such as are essential to the exercise of those which are expressly conferred.

A county makes its contracts through the agency of its board of commissioners; but to make a contract which shall be binding upon the county the board must act as a body convened in legal session, regular, adjourned, or special. A contract made by members composing the board when acting in their individual and not in their corporate capacity while assembled in a lawful meeting is not the contract of the county. As a rule authorized meetings are prerequisite to corporate action based upon deliberate conference and intelligent discussion of proposed measures. 7 R. C. L. 941; 15 C.J. 460; 43 C.J. 497; P. & F. R. Ry. Co. v. Com'rs of Anderson County, 16 Kan. 302; Kirkland v. State, 86 Fla. 84, 97 So. 502. The principle applies to corporations generally, and by the express terms of our statute, as stated above, every county is a corporate body. C. S. 1290; Duke v. Markham, 105 N.C. 131, 10 S.E. 1017, 18 Am. St. Rep. 889; Hill v. Atlantic & N.C. R. Co., 143 N.C. 539, 55 S.E. 854, 9 L. R. A. (N. S.) 606; Everett v. Staton, 192 N.C. 216, 134 S.E. 492.

It is alleged in the complaint that the contract on which the plaintiff relies was made at a joint meeting of the defendants and, notwithstanding the direction given in C. S. § 1309, that no record of the proceedings was kept. Counties exercise only such general supervision and control of county affairs as may be prescribed by law. Const. art. 7, § 2. We find no constitutional or statutory provision which authorizes or empowers a board of county commissioners to enter into a joint meeting with other agencies functioning as entirely separate departments respectively of the county and the state and thereby to make a binding corporate contract by the adoption of a joint verbal agreement to pledge the faith and credit of the county.

There is another point. The duration of the alleged agreement is indefinite. The proposed remuneration is referred to in the complaint as a salary, and although no time was suggested within which the services should be performed, or for how many years the "salary" should be paid, the plaintiff, after the lapse of six years, says that he is entitled to $9,000. Whether the board of commissioners had the legal right to make a contract of this kind potentially operating beyond their term of office and into the term of a succeeding board is a question involving serious doubt. The rule as to such contracts is not inflexible, but the prevailing opinion seems to be that the members of a board of county commissioners cannot contract in reference to matters which are personal to their successors. Picket Pub. Co. v. Carbon, 12 Ann. Cas. 986, note; 29 L. R. A. (N. S.) 656, note. When the time of performance is indefinite, the contract may mean that performance is to be continued for a reasonable time, or that the time was left indefinite with the expectation that the parties might continue performance as long as they pleased, or that they would subsequently settle that term of the promise. 1 Williston on Contracts, § 38. In the last two contingencies the matter would be personal to a succeeding board. But at any rate, it was manifestly not within the contemplation of the parties that the alleged contract should continue in effect for a long term of years. Our conclusion is that the agreement was not enforceable against the county of Wake and for this reason...