Wilson v. . Holding

Walker, J., after stating the case: We have not the slightest doubt that the defendant has refused to audit the plaintiff’s claim from the best motive, that of faithfully and honestly discharging his duty as a public officer of the county, and he should be highly commended for it. The question upon which we are asked our opinion is whether, by a proper construction of the Constitution and statutes to which we have referred in our statement of the case, the defendant can, in law, refuse to countersign this claim, so that it can be paid by the county treasurer. The Constitution, Art. VII, sec. 2, requires the county commissioners to exercise a general supervision and control of the county finances, as may be prescribed by law, and Revisal, sec. 1379, invests the board with full power to direct the application of all moneys arising by virtue of ch. 25, entitled “County Revenue,” “for the purposes therein mentioned, and to any other good and necessary purpose for the use of the county.” It is our duty so to construe this section as to reconcile it with Public Local Laws 1911, ch. 452, as amended by the act of 1913, ch. 306, creating the office of auditor for the county of Wake, if it can be done, and we think it can be, even if there is an apparent conflict between them. The defendant sufficiently audited the plaintiff’s claim in this case except as to the amount thereof, when he ascertained, as he did, that the board of commissioners had, through their chairman, employed it, as a corporation engaged in such work, to make an expert examination of the books of the county. This was done by the.board with a laudable *356 motive, and, as we think, for a perfectly proper and legitimate purpose. They were not bound to confine their efforts to the specific method allowable under other statutes, but if the good of the county, in the exercise of their judgment, acting as they were for its best interests, required such an investigation to be made, it was clearly within their power to order it and to employ experts of great skill in such matters to make it. The statute provides that they may apply the county money to “any other good and necessary purpose.” We have repeatedly held, beginning with Brodnax v. Groom, 64 N. C., 250, and ending with Comrs. v. Comrs., 165 N. C., 534, and more recently Hargrave v. Comrs., 168 N. C., 626, that what is a “necessary expense” for a county is to be determined by the sound judgment and discretion of its board of commissioners. It was said by Chief Justice Pearson, as .far back as the time when the case first cited was decided, “that the court has no power of controlling the exercise of power conferred by the Constitution upon the legislative department of the Government, or upon the county authorities.” And in Comrs. v. Comrs., supra, we said: “This is not a matter over which this coordinate department of the Government has any control. If the result is bad, the remedy is to be found in the power of public opinion, either in controlling the conduct of such members or in electing successors who will cause the objectionable legislation to be repealed or modified, The courts do not have supervisory power over the General Assembly, or over the county officials when acting within the authority lawfully conferred upon them by the Legislature. If there were allegation and proof that the defendants, or any other public officials, were acting dishonestly, or so extravagantly or so recklessly as to amount to an abuse of the authority conferred upon them, the courts might, by injunction in such case, restrain the alleged illegal acts until a jury could pass upon the issues of fact; but the courts cannot interfere with such powers as are conferred upon the defendants by the statute in this case, which, as we have held, were within the power of the General Assembly.” And in Hargrave v. Comrs.: “The courts can compel officials to comply with a lawful statute. They cannot direct them to' disobey it. The courts can supervise by mandamus or injunction the action of officials only to insure their faithful execution of the duties imposed upon them by the statute.” The fault in the argument of the defendant is that it does not sufficiently distinguish between the power of the county commissioners, in their general control of him, and in the exercise of a superior authority, to direct him to pay a particular claim, contracted by the board, and the power he has to audit claims generally. Where the board of county commissioners, having created an obligation of the county itself for a good and necessary purpose, of which it is the judge, and fixed the *357 amount of it, the duty of the auditor is fully discharged when, after ascertaining this fact, he countersigns the order upon the county treasurer, for the board had the power so to contract, and is the sole judge, as we have said, of the propriety and necessity of doing so, and of what shall be paid for the service. This but recognizes the supreme power and control of the board in such matters. In this respect the case is not unlike that of Halford v. Senter, 169 N. C., 546, where Justice Brown, for the Court, said: “The Constitution of this State prescribes that a board of commissioners shall be biennially elected in each county. Such board is given ‘a general supervision and control of the penal and charitable institutions, schools, roads, bridges, and of the levying of taxes, and of the finances of the county, as may be prescribed by law.’ The commissioners constitute the local governing body of the county, and are directly responsible to the people who elected them. It is not only reasonable, but due to the people of the county, that these men, elected by them, should have supervision and control over the expenditures of a subordinate and nonelective board. It is not to be supposed that the General Assembly intended to deprive the taxpayers of a county of such necessary and proper protection and safeguards which are thus thrown around the county treasury.” In one respect this case is stronger than that one, for the statute which creates the office of auditor for Wake County places the incumbent, of it “under the control and direction of the board of commissioners for said county.” It is true that he is required to audit all bills and claims presented to the board of commissioners of said county before they are paid, but, in this case, the board had made the contract for the particular service, knew what it was and what to pay for it, and it cannot, therefore, be successfully urged that it required any more than a formal auditing by him, if any at all, and that he countersign it, unless we are prepared to hold that his authority and power over the payment of this claim is superior to that of the board. If we should hold that the auditor could reject this claim, for that is what it will amount to if he refuses to audit it, the result would be that, for all practical purposes, and in a very effective way, he would completely supersede the board of commissioners in the control and management of county affairs, and it surely was not the intention of the Legislature in passing the act creating his office, that an appointive officer should take the place of and dominate those who had been elected by the people as their chief officers and clothed with supreme power in county government. The language of the statute implies that when bills are presented to the board of county commissioners they shall first be audited, for it provides that it shall be the duty of this officer “to audit all bills and claims presented to the board of county commissioners and the board of education for payment, and no claim or bill filed with said *358 boards shall be allowed or paid until it has been audited by him/’ and it further provides that all warrants drawn for claims or bills allowed by said boards shall be countersigned. This language indicates an intention that the auditor should assist the board of county commissioners in the examination of all hills and claims and ascertain whether, in his opinion, they are proper charges against the county, to the end that the board may determine whether a warrant or order for payment should be made, and if so, for how much; but the opinion of the auditor as to the validity of a claim is not conclusive on the board, for the statute expressly subjects him, in the discharge of his official duties, to “the control and discretion of the board.” The position of auditor was created for the purpose of safeguarding thednterests of the county in the allowance and payment of bills and claims presented against it, as well as for the other purposes mentioned in the statute, but the board must, at last, determine whether any particular claim should be paid, and, if so, how much of it, after considering the report upon it by the auditor, or any information derived from him or otherwise, and when it passes upon the claim and issues its order upon the treasurer it will be the duty of the auditor to countersign the warrant and of the treasurer to pay it. There is nothing in the statute which will justify the inference that the auditor should approve the claim before it is allowed by the board. The power “to allow,” that is, finally to determine the correctness and validity of the claim against the county, is left with the board, and the auditor merely examines the account, after hearing the parties concerned, by comparing the charges with the vouchers, taking testimony, if he deems it necessary, and stating the result. This defines the duty of an auditor as we find by reference to the dictionaries. He may, of course, he given larger powers by law, but in regard to county claims he is given only the power to investigate and report his findings to the board, which is strictly the duty of an auditor, and the board decides what shall be done with the claim. It is still the governing body of the county. The statute is not obscurely worded, but expresses clearly the intention of the Legislature, and our construction of it will produce, we hope, more harmonious relations between the auditor and the board. We do not decide anything as to the board of education, for no such question is before us. The view we have taken of the statute is further supported by the provision we have quoted at the end of the statement, to the effect that no fées, salary, compensation, or other charges for services, except as otherwise provided by law, shall be audited or paid out of the general county fund or road fund of the county by the treasurer, except by and with the authority, consent and approval of the county board of commissioners. *359 As the board of commissioners did not proceed strictly according to the requirement of the statute by first referring this claim to the defendant, that he might audit the same and report the facts to the board, we will not order a peremptory mandamus to be issued, but, as there is now apparently no objection to the claim, we direct that the Superior Court issue an alternative writ to the defendant, requiring him to countersign.' the warrant of the board of county commissioners, or show cause why he has not done so, and, in the meantime, and in order to comply, liter ally with the statute, the defendant may audit the claim by such investigation as he .deems proper, and, for that purpose, the parties concerned will appear before him, if notified so to do. He will then report his findings to the board of county commissioners, and, if they still order the claim, or any part thereof, to be paid, and issue their warrant accordingly, he will countersign the same, so that it may be paid by the treasurer, and the judge will afford reasonable opportunity for the auditor to comply therewith. If he fails to countersign the warrant he will show cause for his failure to do so according to the mandate of the alternative writ. The costs of this Court will be divided equally between .the parties. Modified.