Southern Audit Co v. Mckenzie

• Decision Date: 22 April 1908
• Citation: 61 S.E. 283,147 N.C. 461
• Parties: SOUTHERN AUDIT CO. v. McKENZIE, County Treasurer.
• Court: North Carolina Supreme Court

147 N.C. 461

61 S.E. 283

SOUTHERN AUDIT CO.

v.McKENZIE, County Treasurer.

Supreme Court of North Carolina.

April 22, 1908.

1. Counties—Constitutional Law — Changing Control of County Funds—Audit of Claims.

Const, art. 7, § 2, provides that the county commissioners shall have general supervision and control of the county finances, as may be prescribed by law. Section 14 provides that the General Assembly shall have full power by stat ute to modify, change, or abrogate any and all

of the provisions of the article with certain exceptions. Held that, under section 14, the Legislature had power to enact Pub. Laws 1907, p. 714, c. 488, creating a board of audit and finance for a county, to examine the accounts of county officers, and to authorize the payment of money by the county treasurer on the order of the board.

2. Mandamus — Proceedings — Hearing at Chambers.

Under the express provisions of Revisal 1905, § 824, when a person seeks relief by mandamus, other than the enforcement of a money demand, the summons shall be made returnable before a superior judge at chambers, at which time the court, except for good cause shown, shall proceed to hear and determine the action, except that where an issue of fact is raised by the pleadings, it shall on motion be referred to a jury. Held, that an application for a mandamus to compel the county treasurer to pay an order of the county board of audit and finance was not a proceeding for the enforcement of a money demand, and where there were no issues of fact to be tried, it was the court's duty to hear and determine the action at chambers.

3. Counties — Treasurer — Duty to Pay County Orders.

A county treasurer who has sufficient funds in his hands to pay an order of the board of audit and finance cannot refuse to pay it merely because he has no knowledge of the transaction upon which it is based, since the act of the board in issuing the order is prima facie correct if not conclusive in the absence of a showing that it acted beyond its power or that the order was improperly obtained.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 13, Counties, § 254.]

4. Mandamus—Proceedings—Necessity for Alternative Writ.

In a proceeding for mandamus, where all the facts essential to the granting of the relief sought are admitted, and defendant has filed an answer assigning every possible reason why a peremptory writ should not issue, which reasons are insufficient, the issue of an alternative writ is unnecessary, but plaintiff is entitled to a peremptory writ.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Mandamus, §§ 405-108.]

Appeal from Superior Court, Robeson Couuty; E. B. Jones, Judge.

Mandamus by the Southern Audit Company to compel M. G. McKenzie, as county treasurer, to pay an order of the board of audit and finance. From an order transferring the cause at chambers to the superior court in term, plaintiff appeals. Reversed.

This action was brought for a mandamus. The summons was returned before the judge at chambers on the 7th day of December, 1907. By chapter 488, p. 714, of the Public Laws of 1907, the Legislature created a "board of audit and finance of Robeson county, " consisting of three members, to investigate and report upon the condition of the finances of the county, to examine the accounts of the county officers, and to perform other duties therein enumerated. It is further provided in said act as follows:

"Sec. 9. Said board of audit and finance shall have power, if necessary, to employ counsel to prosecute any public officer or to advise it upon matters of law: Provided, that the total compensation for attorneys'fees shall not exceed the sum of one hundred dollars ($100) in any one year. Said board shall also have power and authority, if necessary, to employ an expert accountant to assist in any of its inquiries and investigations as herein provided."

"Sec. 11. That the compensation of said board and the expenses and disbursements thereof as herein provided shall be paid out of the public funds of the county of Robeson, upon the order of the chairman of the said board of audit and finance, attested by the secretary of said board;. and the treasurer of Robeson county is hereby authorized and directed to pay the same upon presentation to him, and charge the same against the public funds of Robeson county."

Section 10 provides that the members of the board shall receive, as compensation for their services, $5 per day for not more than 10 days in any one year.

The plaintiff, a corporation, was employéd by the said board as an expert accountant, and served as such for 64 days, for which service the board allowed it, as compensation, the sum of $960, and issued an order to the defendant, as treasurer of the county, to pay it that amount. The treasurer refused to pay the order and the plaintiff thereupon brought this action. In the complaint, it alleges substantially the foregoing facts. The defendant answered the complaint and admitted that the order had been issued, and that he had funds in his hands sufficient to pay the same. He denies having any knowledge or information sufficient to form a belief as to whether the board employéd the plaintiff as an expert, or as to whether he performed any services as such, or as to the amount due him for any such service. He avers that the board of county commissioners has never passed upon the claim of the plaintiff or ordered it to be paid, and that he has no authority to pay the same until it is audited and allowed by the commissioners, but that he was notified and instructed by the said commissioners not to pay an order of the board of audit and finance issued to any one for services rendered as an expert accountant under the said act, and that plaintiff's agent was duly notified of this instruction. He further avers: "That he has been further instructed by said board to defend this action, and he has filed this answer for the sole purpose of protecting the public funds of the county of Robeson, under his instructions, and for the further purpose of determining and having settled the power and authority of the said board of audit and finance of the county of Robeson to direct the payment of orders out of the public funds of Robeson county without the approval of the board of commissioners of said county; and also for the purpose of protecting himself from possible liability on account of any payment which should be made by him under such order; that this answer is filed for the purr pose of determining the legality of the said order and not otherwise. If the court holds the said order to be proper and lawful, and that the same should be paid by this defendant out of the public funds of the county of Robeson, the same will be promptly paid and all the orders of the court carried out." When the cause came on for hearing before the judge, upon the plaintiff's motion for a mandamus and the defendant's motion to dismiss the action, he made the following order: "This cause coming on to be heard and being heard upon the written motions of defendant filed, and the pleadings and affidavits, the motion of defendant to dismiss the action is denied. But the motion to transfer the cause at chambers to the superior court in term is allowed; when and where the defendant will appear and show cause why a peremptory mandamus shall not issue compelling the defendant to make payment of plaintiff's claim set out in the complaint." The plaintiff excepted and appealed.

Morrison & Whitlock, for appellant.

McIntyre, Lawrence & Proctor, for appellee.

WALKER, J. (after...