State Ex Rel. Avery County v. Braswell

*275 WiNBOrNE, J. Does the complaint state a cause of action? On this question, we are in agreement with the ruling below. It is generally held in this jurisdiction that, by demurring, a defendant admits as true every material fact alleged in the complaint. Both the statute and our decisions require that the complaint be liberally construed and every reasonable intendment and presumption must be in favor of the pleader. The complaint must be fatally defective before it will be rejected. C. S., 535. Ins. Co. v. McCraw, ante, 105, 1 S. E. (2d), 369, and cases there cited. “Every public officer is bound to perform the duties of his office faithfully, and to use reasonable skill and diligence, and to act primarily for the benefit of the public. In other words, he is bound, vi/rtute officii, to bring to the discharge of his duties that prudence, caution and attention which careful men usually exercise in the management of their own affairs.” 22 R. C. L., 461, Public Officers, sec. 124. Where a public officer is required to give a bond for the faithful performance of the duties pertaining to his office, the engagement of the surety executing the bond rests on the same legal obligation as is imposed by law upon the officer himself. Whatever is a breach of the conditions of the bond as regards the officer is equally so as to the surety. A bond for the faithful performance of official duty is as binding on the principal and his sureties as if all the statutory duties of the officer were inserted in it. 22 R. C. L., 497 — Public Officers, sec. 176. The office of county accountant was created under, and the duties pertaining thereto are prescribed by and defined in the County Fiscal Control Act. Public Laws 1927, ch. 146; Michie’s Code of 1935, sec. 1334 (53), et seq. It is required that the county accountant shall execute and file bond “conditioned for the faithful performance of his duties under this act.” Miehie’s Code of 1935, sec. 1334 (69). It is, therefore, appropriate to advert to the provisions of that act: The declared purpose of the Act is “to provide a uniform system for all the counties of the State by which the fiscal affairs of the counties and subdivisions thereof may be regulated, to the end that accumulated deficits may be made up, and future deficits prevented, either under the provisions of this act or under the provisions of other laws authorizing the funding of debts and deficits, and to the end that every county in the State may balance its budget and carry out its functions without incurring deficits.” Section 24. Michie’s Code of 1935, sec. 1334 (75). The office of county accountant with prescribed duties was created with this special purpose in view. The duties are special in character, and are additional to but not in substitution for the duties and functions of other offices pertaining to the ordinary operation of county government. Power Co. v. Clay County, 213 N. C., 698, 197 S. E., 603. *276 The County Fiscal Control Act, in providing the machinery for gathering data for the “Budget Estimate” as basis for appropriation resolution to be subsequently adopted, designates the county accountant as the moving agency, and requires that he “shall prepare (a) his estimate of the amounts necessary to be appropriated for the next ensuing fiscal year for the different objects of the county and subdivisions, listing each object of disbursement under the appropriate class of functions as defined in Section two of the Act, . . .; (b) an itemized estimate of the revenue to be available during the ensuing fiscal year . . . and (c) an estimate of the amount of unencumbered and surplus revenues of the current fiscal year in each fund . . Section 6. Michie’s Code of 1935, sec. 1334 (57). Upon the basis of these estimates and statements submitted by the county accountant, the appropriations are made by the board of county commissioners in the month of July, by the adoption of the appropriation resolution, “the form of which shall be prescribed by the county accountant.” Section 8. Michie’s Code of 1935, sec. 1334 (59). Section 9 of the act requires that a copy of this appropriation resolution shall be kept on file both by the county treasurer and by the county accountant “for their direction in the disbursement of county funds.” Michie’s Code of 1935, sec. 1334 (60). This resolution thereby becomes the chart for the county accountant and the county treasurer in disbursing the county’s funds. (See Sing v. Charlotte, 213 N. C., 60, 195 S. E., 271, as applied to municipalities.) Thus whether he be, or not be the individual county accountant who prepared the budget and appropriation resolution, the incumbent has before him at all times the information as to what is contained therein. The act, section 15, further provides that: “No contract . . . requiring the payment of money . . . shall be made, and no warrant or order for the payment of money shall be drawn upon the treasury of the county, unless provision for the payment thereof has been made by (a) an appropriation resolution as provided by this Act . . .; nor shall such contract, agreement or requisition be made unless the unencumbered balance of such appropriation or provision remains sufficient for such payment. No contract or agreement or requisition requiring the payment of money shall be valid unless the same be in writing, and unless the same shall have printed, written, or typewritten thereon a statement signed by the county accountant, as follows: “Provision for the payment of the moneys to fall due under this agreement has been made by appropriation duly made or by bonds or notes duly authorized, as required by the ‘County Fiscal Control Act.’ . . . Before making such certificate, the county accountant shall ascertain that a sufficient unencumbered balance of the specific appro *277 priation remains for the payment of the obligation, . . . and the appropriation or provision so made shall thereafter be deemed unencumbered by the amount to be paid on such contract or agreement until the county is discharged therefrom.” Michie’s Code of 1935, sec. 1384 (66). “Unencumbered balance” is defined in section 2 of the act. Michie’s Code of 1935, sec. 1334 (53). Section 16 of the act also further provides: “No claim against the county . . . shall be paid except by means of a warrant or order on the county treasurer or county depository, signed by the head of the department for which the expense was incurred, nor unless the bill or claim for which the warrant or order is given shall have been presented to and approved by the county accountant, or in case of his disapproval of such claim or bill, by the Board of County Commissioners. The Board shall not approve any claim or bill which has been disallowed by the county accountant without entering upon the minutes of the Board its reason for approving the same in such detail as may show the Board’s reasons for reversing the county accountant’s disallowance. No warrant or order, except (not pertinent here) . . . shall he valid unless the same shall hear the signature of the county accountant helow a statement which he shall cause to he written, printed, or typewritten thereon containing the words: ‘Provision for the payment of this warrant (or order) has heen made hy an appropriation duly made or a hond or note duly authorized, as required hy the “County Fiscal Control Act.”’” Michie’s Code of 1935, sec. 1334 (67). By section 17 of the act the county accountant is .required to keep accounts of each object of appropriation, showing “in detail the amount appropriated thereto, the amount drawn thereupon, the unpaid obligation charged against it, and the unencumbered balance to the credit thereof.” Michie’s Code of 1935, sec. 1334 (68). Section 20 of the act provides: “If a county accountant shall knowingly certify any contract, agreement, or warrant in violation of the requirements of this act, or approve any fraudulent, erroneous, or otherwise invalid claim or bill, or make any statement required by this act, knowing the same to be false, or shall willfully fail to perform any duties imposed upon him by this act, he shall be guilty of a misdemeanor . . . and shall be liable on his bond for all damages caused by such violation or failure.” Michie’s Code of 1935, sec. 1334 (71). "While under the act the chairman of the board of county commissioners is required to sign the warrant of the character here designated as county voucher, the county treasurer is not authorized to cash same unless it bears the signature of the county accountant below the statement as therein specified. If the conditions do not admit of compliance with that requirement, it is the duty of the county accountant to dis *278 approve tbe claim and to refuse to sign the required approval of the warrant or voucher, regardless of what may be the rights and duties of the board of county commissioners. Defendants contend in effect that it is the duty of the board of county commissioners to exercise general supervision over the finances of the county, and that, therefore, when the chairman of that board signed a voucher payable to Bray Brothers Company, the duty of the county accountant became purely ministerial. This is not what the act prescribes. But, if it be conceded that the signing of the voucher by the chairman of the board be malfeasance in office, that would not justify the county accountant in signing the warrant in violation of law and of the duties imposed upon .him by law, nor would such fact exculpate him and his surety from consequent liability. The plea of laches or wrongful acts of other officers is not available to the county accountant nor to his surety. This question has been discussed in decisions of other jurisdictions : In Hart v. United States, 95 U. S., 316, 24 L. Ed., 479, the Supreme Court of the United States, speaking through Waite, C. J., said: “The Government is not responsible for the laches or the wrongful acts of its officers. . . . Every surety upon an official bond to the Government is presumed to enter into his contract with a full knowledge of this principle of law, and to consent to be dealt with accordingly. The Government enters into no contract with him that its officers shall perform their duties.” In State v. Pederson, 135 Wis., 31, 114 N. W., 828, Winslow, C. J., said: “The State is not ordinarily estopped by acts of misfeasance on the part of its officers, nor does it contract with the sureties on an official bond given to it that other public officers shall perform their public duties faithfully. Sureties upon such bonds are presumed to know this principle, and to consent to be bound by it,” citing Hart v. U. S., supra. In Ramsay’s Estate v. People, 197 Ill., 572, 64 N. E., 549, 90 Am. S. R., 177, Magruder, J., said: “It is also well settled that the sureties, in an action on an official bond, cannot be heard to say that some other officer has been negligent, or failed to perform some duty, and thus escape liability.” Construing the complaint liberally, as we must do, and in the light of these principles of law, we are of opinion and hold that sufficient facts are alleged to state a cause of action. The plaintiffs are entitled to an opportunity to make good, with proof, the charge of the wrong alleged. "We are not here dealing with the question of refusal, arbitrary or otherwise, of the county accountant to perform a purely ministerial duty for the requirement of which resort to mandamus may be had as in the cases of Martin v. Clark, 135 N. C., 178, 47 S. E., 397; Audit Co. v. *279 McKensie, 147 N. C., 461, 61 S. E., 283; Wilson v. Holding, 170 N. C., 352, 86 S. E., 1043; Board of Education v. Walter, 198 N. C., 325, 151 S. E., 718; and Board of Education v. Burgin, 206 N. C., 421, 174 S. E., 286, wbieb are relied upon by the appellants. Those cases are clearly distinguishable, and are not decisive of the principles of law involved in the present action. The judgment below is Affirmed.