Reed v. . Farmer

Clarkson, J. There are several grounds of demurrer and the only ones we think necessary to consider are under C. S., 511 (6). “The complaint does not state facts sufficient to constitute a cause of action” in that : “A. It does not show that the board of county commissioners of Madison County has ever ordered the payment to the petitioner of the voucher set up in his petition, or ordered the chairman to sign such voucher. “B. It does not show any particular voucher which has been presented to the defendant, or any specified amount in any voucher. “C. It shows on its face that the writ of mandamus requested seeks to enforce a money demand ex contractu against Madison County, and fails to show that any claim of petitioner has been reduced to judgment as required by law. “D. It asks for mandamus to require the defendant to sign a cheek upon the funds of Madison County, and does not show on its face that the county of Madison has any funds available to meet said check if signed.” Const. of N. C., Art. VII, sec. 2: “It shall be the duty of the commissioners to exercise a general supervision and control of the penal and charitable institutions, schools, roads, bridges, levying of taxes, and finances of the county, as may be prescribed by law. The register of deeds shall be ex officio clerk of the board of commissioners.” Sec. 8: “ETo money shall be drawn from any county or township treasury, except by authority of law.” ET. C. Code, sec. 1297, Power of Board, subsec. 5, *253 says: “To provide by taxation or otherwise for the prompt and regular payment, with interest, of any existing debt owing by the county.” In Martin v. Clark, 135 N. C., 178 (179), is the following: “The law commits to the board of commissioners the power and duty of auditing and passing upon the validity of claims. If they refuse to audit or act upon a claim, mandamus will lie to compel them to do so. Bennett v. Comrs., 125 N. C., 468. If after the hearing they refuse to allow or issue a warrant for its payment, an action will lie against the commissioners to establish the debt and for such other relief as the party may be entitled to. Hughes v. Comrs., 107 N. C., 598.” Public-Local Laws of N. C., 1917, ch. 201, sec. 1, is as follows: “That permanent office of ‘Auditor of Madison County, North Carolina,’ be and the same is hereby created and established.” Sec. 12: “That the auditor of Madison County shall O.K. all vouchers issued by any of the boards of commissioners thereof, and in the discharge of this duty may administer oaths to any person presenting any voucher.” Sec. 14: “That the auditor of Madison County shall receive as full compensation for his service the sum of three dollars per day and mileage for the days actually engaged in the performance of his duties, said mileage to be the same as that received by the members of the. board of county commissioners of Madison County.” Public-Local Laws of N. C., 1931, ch. 341 — the title: “An act to fix the fees of certain officials of Madison County whose salaries have been abolished, and to define the duties of certain officials and boards.” Sec. 4 provides the method of electing the auditor. In a careful examination of the acts set forth in the complaint, we can find no power or authority of the defendant chairman of the board of county commissioners to pass on the claim of plaintiff. It would, in fact, be questionable if the General Assembly had power to pass such an act. From the constitutional provisions above quoted, the county commissioners have the general supervision and control over the “finances of the county.” If plaintiff had a claim against the county, it should have been presented to and approved by it, and if not approved and paid, an action would lie against the county, as said in the Martin case, supra. It is well settled in Person v. Doughton, 186 N. C., 723 (724) : “Mandamus lies only to compel a party to do that which it is his duty to do without it. It confers no new authority. The party seeking the writ must have a clear legal right to demand it, and the party to be coerced must be under a legal obligation to perform the act sought to be enforced.” Mebane School District v. County of Alamance, ante, 213, citing authorities. See Woodmen of the World v. Comrs. of Lenoir, 208 N. C., 433. For the reasons given, the judgment in the court below is Reversed.