Oliver v. Board of Com'rs of Johnston County

• Decision Date: 19 October 1927
• Docket Number: 100.
• Citation: 139 S.E. 767,194 N.C. 380
• Parties: OLIVER et al. v. BOARD OF COM'RS OF JOHNSTON COUNTY et al.
• Court: North Carolina Supreme Court

139 S.E. 767

194 N.C. 380

OLIVER et al. v. BOARD OF COM'RS OF JOHNSTON COUNTY et al.

No. 100.

Supreme Court of North Carolina

October 19, 1927

Appeal from Superior Court, Johnston County; Harris, Judge.

Action by A. S. Oliver and others against the Board of Commissioners of Johnston County and the State Highway Commission. Judgment for defendants, and plaintiffs appeal. Affirmed.

The action was brought by the plaintiffs, citizens and taxpayers of Johnston county, to annul a contract made between the defendants on February 8, 1927, to restrain the defendants from carrying the contract into effect; and to require the board of commissioners to turn over to the state sinking fund commission, under the provisions of chapter 95, Public Laws 1927, certain funds allocated to Johnston county by the state highway commission.

From the evidence introduced by the parties, Judge Harris found the facts to be as follows:

(1) That on February 8, 1927, the board of county commissioners of Johnston county were the duly authorized and constituted authorities, having charge of the public roads and the building and maintenance thereof in Johnston county and the power to make contracts relative thereto.

(2) That the state highway commission were on February 8, 1927 the duly authorized authorities, having charge of the state highways of the state of North Carolina, and the power to construct and maintain the same, and to make contracts relative thereto.

(3) That the minutes of the board of county commissioners of Johnston county of February 8, 1927, and those supplemental thereto, the same being the minutes of February 16, 1927, and April 21, together with the supplemental contract executed on February 8, 1927, by C. A. Fitzgerald, chairman of the board of county commissioners of Johnston county, and attested by Neil Barnes, clerk to the said board, constitute the supplemental contract and extension of time of repayment of the funds in the sum of $500,000 theretofore loaned to the state highway commission by the county of Johnston for the construction of state highways in Johnston county, and the court finds as a fact that the existing contract between the county of Johnston and the North Carolina state highway commission was duly made and entered into, and the same became a binding and legal contract on February 8, 1927; and the court further finds that the minutes of February 15 1927, and April 21, 1927, were made nunc pro tunc to correct the minutes of February 8, and that all of the said minutes relate back and become a part of the minutes of February 8, 1927.

(4) The court further finds that the supplemental contract of February 8, 1927, is supplemental to and in extension and renewal of the contract of April 14, 1925.

(5) The court further finds that the state highway commission, through their counsel, have proposed to provide the funds for the payment of the $130,000 short-term note executed by the county of Johnston to procure funds for making the original loan to the North Carolina state highway commission; that this part of said loan will be due by the state to the county on maturity of said note.

It was thereupon adjudged that the prayer of the plaintiffs be denied, that the restraining order be dissolved, and that the contract made on February 8, 1927, between county of Johnston and the state highway commission, be declared legal and valid. It was further adjudged by consent of parties that the highway commission should reserve out of the first money in its possession applicable to the discharge of the contract of April 14, 1925, the sum of $130,000 and pay the same to the state sinking fund commission in trust for the payment of the note of Johnston county for this sum, which is to mature October 6, 1927. The plaintiffs excepted and appealed.

J. C. Clifford, of Dunn, for appellants.

Paul D. Grady, of Kenly, and Abell & Shepard, of Smithfield, for Board of Com'rs of Johnston County.

Charles Ross, Asst. Atty. Gen., for State Highway Commission.

ADAMS J.

The exceptions first to be considered are those which denounce the binding force of the contract made by the defendants on February 8, 1927. Contracts of this character were authorized by the act of 1921 (Pub. Laws 1921, c. 2, § 14), but forbidden by the act of 1927 (Pub. Laws 1927, c. 95, § 12). The plaintiffs contend that the purported contract was made, not on February 8, 1927, but some time after March 4 when the act of 1927 went into effect, and as a basis of their contention they set forth those propositions: (1) That on February 8 no record of the contract was entered in the proceedings of the board of commissioners; (2) that the contract was made, if at all, in Wake county; (3) that the minutes of the board of commissioners were amended after the institution of the present action. The defendants not only deny that the contract was made outside Johnston county; they assert that it was duly considered and authorized by the board of commissioners in a meeting regularly held in the courthouse at Smithfield on February 8, and that on February 16, in a meeting of the commissioners regularly called for the purpose, it was ratified, affirmed, and ordered to be spread upon the minutes.

Among the facts found in reference to these contentions and made a part of the judgment are the following: The minutes of February 8, February 16, and April 21, together with the agreement executed by the chairman of the board and attested by the clerk, constitute the supplemental contract between the defendants; the minutes of February 16 and April 21 were made nunc pro tunc to correct the minutes of February 8; they relate back and are a part of the minutes entered of record at that time. It was found to be a fact that the minutes which were more fully set out after the institution of this action were "true minutes of what occurred on February 8, 1927." The facts thus found are amply supported by the record. Indeed, the evidence to the contrary is very slight. So we are confronted with the question whether the defective or inaccurate minutes of February 8 could be made "to speak the truth" as to what actually took place.

On this point the law has been declared. In Mayo v. Whitson, 47 N.C. 231, Chief Justice Nash expressed the opinion of the court in these words:

"It is further urged that the court will not allow an amendment of a record to the injury of third persons, who have acquired an interest under it. The principle is misapplied here. The court is not called on to amend any process whatever but to amend its own records, so as to make them show the truth. The record so amended can work no greater injury to any one than would arise if the order had been committed to the records at the time it was made, for it must speak as of that time. The question we are now considering is one of great importance to every man. Every citizen is interested in the principle, that the records of these courts of justice should import absolute verity. The security of property and much of the peace of society depend upon it. As it is but the evidence of what has been transacted by the court, it should show the truth upon its face. To do this, the court must see that nothing is put upon it not ordered by it, and nothing omitted, which they have ordered."

Of like import is Foster v. Woodfin, 65 N.C. 29:

"Whenever, by any accident, there has been an omission by the proper officer to record any proceeding of a court of record, the court has the power, and it is its duty on the application of any person interested, to have such proceeding recorded as of its proper date. Philipse v. Higdon, Busb. [44 N. C.] 380. Such an amendment differs materially from one for the purpose of putting into a process, pleading, or return, something which was not in it originally. An amendment for that purpose will not, in general, be allowed where the rights of third persons will be affected. But no subsequent dealings by third parties can impair the right of a party to have the record of a past proceeding made to speak the truth as to what was done. A court cannot admit that

...