Royster v. Board of Commissioners

Davis, J., (after stating the case as above). Was the plaintiff’s.claim barred? Section 756 of The Code, Chapter 18, entitled “ County Revenues,” &c., provides, that “ all claims against the several counties, cities and towns of this State, whether by bond or otherwise, shall be presented to the chairman of the board of county commissioners, or to the chief officers of said cities and towns, as the case may be, within two years after the maturity of such claims, o'r the holders of such claims shall be forever barred from a recovery thereof.” It is found as a fact, and the evidence shows, that the order sued on was not presented within two years after maturity, and if the section referred to has any validity whatever, we are unable to see why it is not barred. It is said in Wharton v. Commissioners of Currituck, 82 N. C., 11, that the Act of 1874-75, Chapter 243, the first section of which, without the proviso, is §756 of The Code, “ is not in strict terms an act limiting the time within which the action may be prosecuted, but it imposes upon the creditor the duty of presenting his claim within a defined period of time, and upon his failure to do so, forbids a recovery in any suit thereafter brought.” That was an action originally commenced on the 13th of June, 1878, by D. M. Carter, the intestate of the plaintiff in that action, to recover the value of certain bonds, issued by the county of Currituck, which matured on the 1st day of July, 1876. On the 11th day of November, 1878, [152] there was a nonsuit, and on the 15th day of February, 1879, a new action for the same cause was commenced by the administrator of Carter. It was held in that action that the statute did not bar. The original action was brought within two years after the maturity of the bond, and the second action was brought within one year after the nonsuit, and was protected from the bar by what is now § 166 of The Code, which permits an action to be brought within one year after non-suit, &c., if the original action was commenced within the prescribed time. Much of the opinion in Wharton v. Commissioners, has reference to other provisions in the act of 1874-5, relating to outstanding obligations of counties, and designed to enable them, as was said by the Chief Justice, “ to separate such as are spurious or tainted with illegality and denounced in the Constitution;” but the section incorporated in The Code is of general application, not temporary in its character to meet a particular class of claims, but applies to all, and by its plain terms they must be presented within two years, or be subjected to the bar of the statute. In the case before us, the claim was not presented within the time limited before the first action was commenced, and is not protected from the operation of the statute after the non-suit by §166 of Ihe Code. But it is insisted for the plaintiff, that the defendant is concluded by what transpired on the 2nd of September, 1878, in regard to the duplicate order. Among the numerous grounds of defence set out in the answer, it is alleged that the order was issued to Plorsefall “ without consideration,” that it “ was procured to be issued by fraud and misrepresentations,” and a number of other invalidating allegations, that tend to explain and account for the otherwise inexplicable reservations in the duplicate order, but that order was never delivered, was cancelled, and cannot be fairly construed as an admission or recognition of the validity of the [153] order in question. It may be said that the defendant did not rely upon any fraud or illegality as indicated by the qualifications contained in the duplicate upon which the plaintiff relies as evidence. If the defendant had a perfect legal defence in the statute, it was not necessary that he should insist upon the others. We think the right of recovery is barred by § 756 of The Code, and it is unnecessary for us to consider the other ground of defence relied on, or the power of the Legislature to pass the act requiring claims against counties, &c., to be presented as specified. We think the Legislature had the power. It interfered with no vested right and impaired no obligation. Whitehurst v. Dey, 90 N. C., 542; Strickland v. Draughan, 91 N. C., 103. There is no.error.