Osborne v. Town of Canton
| Decision Date | 26 February 1941 |
| Docket Number | 25. |
| Citation | 13 S.E.2d 265,219 N.C. 139 |
| Parties | OSBORNE v. TOWN OF CANTON et al. KINSLAND et al. v. MACKEY. |
| Court | North Carolina Supreme Court |
See also, Kinsland v. Mackey, 217 N.C. 508, 8 S.E.2d 598.
Two actions--the second (4936) in the nature of quo warranto to try title to office of tax collector of the town of Canton North Carolina, and the first (5059) to enjoin the town of Canton and its board of aldermen from paying to Way Kinsland the relator in the second, salary as tax collector of said town claimed by him de jure for the period during which he alleges the office was wrongfully withheld from him by J. D Mackey, defendant in the second action.
The two cases as stated in the caption in the record of this appeal are in reverse order of priority in point of time the actions were instituted. The second was instituted August 17, 1939, by leave of the Attorney General, C.S. §§ 870 and 871, in the name of the State upon the relation of Way Kinsland, joined by Town of Canton, against J. D. Mackey, to try title to office of tax collector of town of Canton, as between Way Kinsland and J. D. Mackey.
The first was instituted on August 28, 1940, by H. Arthur Osborne, a taxpayer, against the Town of Canton and the individuals composing its board of aldermen to enjoin the payment to Way Kinsland of the salary of the office of tax collector for the period during which title to the office was in dispute, upon the ground that J. D. Mackey is the tax collector de jure rather than Way Kinsland.
The record fails to disclose that the two actions were consolidated, but rather it appears that in the court below they were heard together for convenience. The record shows statement of presiding judge that "It is agreed that the evidence offered in the two cases (Nos. 4936 and 5059) shall apply to the two cases and shall constitute the evidence in both cases, with the exception that the court in hearing the evidence has undertaken to segregate it as it relates to the pleadings in the cases properly filed". The record contains separate statements of the records proper, the evidence, judgments and assignments of error in the two cases, except as to certain oral testimony applicable to both.
Appellees move to dismiss for failure to bring separate records on appeal. Rule 19 of Rules of Practice in the Supreme Court, 213 N.C. 808, 816.
In the complaint in the action in the nature of quo warranto it is alleged in substance that by virtue of appointment or election by the board of aldermen of the Town of Canton on June 30, 1939, the relator, Way Kinsland, is the tax collector of said town and entitled to the office as of that date; that that appointment or election had the effect of removing J. D. Mackey from the office of tax collector of said town to which he was appointed or elected by the said Board on June 5, 1939; that demand had been made upon Mackey to surrender said office to Kinsland; that he had refused the demand, and that he intrudes into and wrongfully withholds the office.
Defendant Mackey, in answer, denies that relator, Way Kinsland, is duly appointed or elected tax collector of said town and denies that he is entitled to the office. On the contrary, defendant avers that on June 5, 1939, he was duly and lawfully re-elected and reappointed to said office by the board of aldermen of said town "for another and additional term of two years", and, in paragraph 7 of the original answer, while admitting that demand was made upon him to deliver the office and books and records pertaining thereto to Way Kinsland, and further admitting that on July 24, 1939, at a meeting of the board of aldermen of said town, W. Bowen Henderson, a certified public accountant, was instructed and authorized to receive from him all moneys and things then in his possession as tax collector, and to transfer same to Way Kinsland, he avers that "he refused and still refuses to surrender the said office of tax collector and the books and records appertaining thereto to Way Kinsland or to any other person *** for the reason that at the time said demands and requests were made on defendant he had theretofore, on the 5th day of June, 1939, been re-elected and re-appointed as tax collector of said town, and, by virtue of said re-election and re-appointment was lawfully entitled and authorized to hold and retain said office and all books, records, moneys and other things of value appertaining thereto".
On former hearing the case was tried upon the theory manifested by the pleadings,--plaintiffs contending that Way Kinsland is rightfully entitled to the office, and defendant contending that the board of aldermen elected him for a term of two years from June 5, 1939, and that, therefore, it had no authority to remove him on June 30, 1939, without preferring charges and giving him an opportunity to be heard. The trial judge charged the jury in accordance with theory of defendant. On appeal to this Court, Kinsland v. Mackey, 217 N.C. 508, 8 S.E.2d 598, 600, the Court held that "no definite term having been prescribed by statute for the office of tax collector for the town of Canton, the appointment of defendant at the regular meeting of the board of aldermen on June 5, 1939, entitled him to hold the office only at the will or pleasure of the board"; that "this is true, even though it be conceded that the board by resolution specified that the appointment be for a definite term"; further, that "in the absence of constitutional or statutory provision therefor, the board, under the power of removal incident to the power of appointment, had the power to remove the defendant at any time without cause, notice or hearing"; and that "the appointment of another, the plaintiff, to the position of tax collector, of which fact defendant had notice, operated as a removal of defendant". In accordance with these principles of law a new trial was granted.
When the case came on for hearing at September Term 1940, defendant Mackey, pursuant to notice, made a motion to be permitted to amend paragraph 7 of his original answer so as to set up, as further reasons for his refusal to surrender the office and to turn over the moneys, books and records pertaining thereto, these averments: (1) That at the time said demands were made upon him neither Way Kinsland nor W. Bowen Henderson, certified public accountant, was a bonded officer of the Town of Canton; nor had Way Kinsland taken and filed oath of office and bond conditioned as required by law; (2) that the law required him, Mackey, to make settlement with and to turn over to the treasurer of the Town of Canton all moneys, books, receipts, etc., which came into his hands as tax collector during his term of office, and, if he had delivered to another and a loss had occurred, he and his bondsman would have been liable therefor; and (3) that "Way Kinsland never filed any bond as tax collector of the Town of Canton with the treasurer of said town until on or about the 3d day of September, 1940". The record shows . In the judgment entered from which appeal is taken, it is stated "that the court *** denied the motion to amend, all in the court's discretion".
After the evidence was closed, defendant requested the court to find as a fact: "That from June 30, 1939, to September 3, 1940, the relator, Way Kinsland, never filed with any officer of the Town of Canton a bond as required by the statute, and the town charter, and that upon the foregoing finding of fact it is adjudged as a matter of law that the relator, Way Kinsland, was never qualified as tax collector of the Town of Canton and, therefore, not entitled to the emoluments of that office from June 30, 1939, to September 3, 1940". The court declined to do so "for that there is no allegation in the answer of the respondent setting up that defense, and evidence offered without allegation is held by the court to be unavailing". Defendant excepts.
Thereupon, defendant moved the court to be allowed to amend his answer . The "motion is found by the court to be the same or a similar motion as offered heretofore and disallowed by the court in its discretion". Defendant excepts.
Defendant now moves in this Court to be permitted to amend his answer in accordance with amendment as first proposed in Superior Court, as above set forth. C.S. § 1414.
Upon the retrial a jury trial being waived, the court finds, among others, substantially these facts: (1) That at a special meeting of the board of aldermen of the Town of Canton held on June 30, 1939 upon motion, duly seconded, and by a two to one vote, Way Kinsland, the relator, was appointed tax collector of said town at salary of $145 per month; (2) that at a regular meeting of said board, upon motion made and seconded, and carried by two to one vote, W. Bowen Henderson certified public accountant, was "requested and authorized to receive from Mr. J. D. Mackey all moneys and things now in his custody and possession as tax collector and deputy clerk of the Town of Canton, and to transfer all moneys and things so received immediately to Mr. Way Kinsland"; (3) that on September 3, 1940, in paper writing addressed to the mayor and board of aldermen of the Town of Canton defendant, J. D. Mackey, tendered his resignation as tax collector of said town, without prejudice, effective September 1, 1940, and requested pay for his services "for the past twelve months and also for extra services rendered on the tax scroll set up in 1939" as indicated; (...
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