Tyrrell County v. Holloway

• Decision Date: 21 September 1921
• Docket Number: 13.
• Citation: 108 S.E. 337,182 N.C. 64
• Parties: TYRRELL COUNTY ET AL. v. HOLLOWAY ET AL.
• Court: North Carolina Supreme Court

108 S.E. 337

182 N.C. 64

TYRRELL COUNTY ET AL. v. HOLLOWAY ET AL.

No. 13.

Supreme Court of North Carolina

September 21, 1921

Appeal from Superior Court, Tyrrell County; Allen, Judge.

Action by Tyrrell County and others against S. J. Holloway and others. From an adverse judgment, defendant Holloway and his surety appeal. No error.

The action is in the nature of mandamus to compel the defendant S. J. Holloway to turn over to two banks, the lawfully designated depositaries made parties of record, the public funds of the county, which plaintiffs aver and offered proof to show, had come into the hands of said defendant while treasurer of said county, and which he wrongfully refuses to deliver. Plaintiffs further allege, and offered evidence tending to show, that said office of treasurer had been lawfully abolished by resolution of the Commissioners, and the two banks referred to duly designated as depositaries to act as treasurer without charge, etc., and that defendant continued to withhold the funds, claiming that he was still the lawful treasurer of the county. There was a preliminary order issued, restraining said defendant from other and further disposition of said funds, which was returnable at said term, and which, on proof submitted, was heard at the same term as the principal cause. Defendant admitted that he had received the county funds in controversy while treasurer of the county, and claimed the right to hold and disburse on allegation and evidence tending to show that the office had not been abolished, and that said defendant was still county treasurer, and as such had control and lawful disposition of same. His honor, having heard the case, entered the following judgment:

"This cause coming now to be heard at Columbia, N. C on April 25 1921, according to continuances upon motion in this cause and being heard upon the evidence taken and affidavits filed the court finds:

That the board of county commissioners on the 5th day of April 1920, abolished the office of treasurer of Tyrrell county, to take effect the 1st of December, 1920, and elected the two banks at Columbia, the Merchants' & Farmers' Bank and the Tyrrell County Bank, as its financial agents, to act as its treasurer, upon giving bond and without compensation. That on Monday, the 6th day of December, 1920, being the first Monday in December, the new board of county commissioners, which was elected in November, 1920, at the November election, duly qualified and passed resolutions abolishing the office of treasurer of Tyrrell county, and elected the said two banks as the financial agents, and to act as treasurer for the said county without compensation, and the said banks duly accepted on the said 6th day of December, 1920, and tendered their bonds. That the bonds were accepted, except the bond for the county road fund, and a question having arisen as to whether the money should be paid to the treasurer of the county or to the treasurer of the highway commission of the county, the question was referred to the Attorney General, and the bonds for these amounts were not accepted until January 3, 1921, which was the next meeting of the board of said commissioners, and that this bond was accepted at that time. That the two banks have been acting as financial agents and treasurer of Tyrrell county ever since the 6th day of December, 1920. That the said S. J. Holloway did not tender any bond on the first Monday in December, 1920, as treasurer of the county, and has not at any time since, and has not paid over to the county the moneys in his hands belonging to the said county, nor to either of its financial agents as required by law.

The court finds that the defendant S. J. Holloway is not the treasurer of Tyrrell county; that he has not settled with the said county, and has in his hands a large sum of money belonging to the said county; that it is his duty to pay over the same to the duly elected and qualified financial agents of said county, to wit, the Merchants' & Farmers' Bank and the Tyrrell County Bank; and that they have been elected and qualified.

It is ordered, decreed, and adjudged that the defendant S. J. Holloway pay over to the said Merchants' & Farmers' Bank one-half of all moneys which are due to the county by the said Holloway, and the other half to the Tyrrell County Bank, and that he be and is hereby enjoined and restrained from paying out any moneys belonging to the said county, or its financial agents, except as set out above, and enjoined and restrained from acting as said treasurer.

It is further ordered and adjudged that he pay over to the Tyrrell County Bank the half of all the moneys due to it as said financial agent of said Tyrrell County on or before the 15th day of July, 1921.

It is further adjudged that the said S. J. Holloway enter into a good and sufficient bond in the sum of $50,000 for the faithful compliance with the above order, and that he pay over and account to the said banks, as set out above, the said moneys due to them as financial agents of said county.

It is further adjudged that the defendant Merchants' & Farmers' Bank execute a good and sufficient bond in the sum of $50,000 for the faithful handling of the moneys described in the pleadings in this cause, and to account for any and all of the moneys referred to in this proceeding that may come into its hands, or should come into its hands, and that it will faithfully account to the plaintiff for said moneys.

It is further adjudged that the defendants pay the cost of this proceeding and that this restraining order continue to the hearing."

Defendant and his surety, also defendant, excepted and appealed.

Thompson & Wilson, of Elizabeth City, and R. W. Winston, of Raleigh, for appellants.

Aydlett & Simpson, of Elizabeth City, and W. L. Whitley, of Plymouth, for appellees.

HOKE J.

In section 1389, c. 26, Consolidated Statutes, it is provided that the board of county commissioners of Tyrrell and certain other counties therein specified may abolish the office of county treasurer by resolution to that effect, passed at least 60 days before a primary or convention, held for the purpose of nominating candidates for said office, and when so abolished the board of commissioners may appoint one or more solvent banks or trust companies to perform the duties of treasurer or sheriff acting as ex-officio treasurer of the county, such designated depositaries not being allowed to charge or receive anything...