Southern Audit Co. v. McKensie

Walker, J., after stating the case: The first question to be .considered is the one raised in the defendant’s answer, that the act of 1907 creating a board of audit and finance is in violation of Article YU, sec. 2, of the Constitution, which provides that the county commissioners shall have general supervision and control of the finances of the county “as may be prescribed by law.” It is therefore insisted that the Legislature had no power to authorize the payment of money by the County Treasurer to anyone except upon the order of the commissioners. The answer to this contention is that the supervision and control of the commissioners must by the express terms of section 2, Article VII, be exercised “as may be prescribed by law,” and section 14 of the same article provides that “The General Assembly shall have full power by statute to modify, change or abrogate any and all of the provisions of this article and substitute others in their place, except, sections I, 9 and 13.” Section 14 has recently been construed in Smith v. School Trustees, 141 N. C., at p. 157, in which Justice Moke, for the Court, says: “The language of section 14 is very broad in its scope and terms, and the Supreme Court in construing the section has declared that it is not necessary, to effect changes in municipal government, that an act for the purpose should be general in its operation *466 or that it should in terms abrogate one article or substitute another in its stead, but that an act of the General Assembly making such change and local in its operation must be given effect under this amendment, if otherwise valid.” After declaring this as a principle of construction, the Court, in Harris v. Wright, 121 N. C., 179, further holds as follows: “In 1875 a constitutional convention amended Article VII in . these words: ‘The General Assembly shall have full power by statute to modify, change or abrogate any and all the provisions of this article and substitute others in their place, except sections 7, 9 and 13.’ Thus was placed at the will and discretion of the Assembly, the political branch of the State Government, the election of court officers, the duty of county commissioners, the division of counties into districts, the corporate power of districts and townships, the election of township officers, the assessment of taxable property, the drawing of money from the county or township treasury, the entry of officers on duty, the appointment of justices of the peace, and all charters, ordinances and provisions relating to municipal corporations.” The act is therefore valid as being within the legislative power. When the plaintiff seeks relief by mandamus “other than the enforcement of a money demand” the statute requires that the summons shall be returnable before a Judge of the -Superior Court at chambers or in term, on a day to be specified, not less than ten days after a service of the summons and complaint upon the defendant, at which time the court, except for cause shown, shall proceed to hear and determine the matter, both as to the law and the facts, provided that if an issue of fact is raised by the pleadings it shall on motion of either party be referred to a jury. Nevisal,.sec. 824. If the relief asked by the plaintiff in this case was not the enforcement of a money demand the Judge had jurisdiction of the case at chambers, and it w.as his duty to hear and determine the case, and his order transferring it to term was consequently erro- *467 neons. It is evident that the transfer was not made for the purpose merely of continuing the case to be heard at a more convenient time for good cause shown, but because the Judge was of the opinion that he could not take cognizance of the case at chambers except for the purpose of making the transfer. In this ruling there was error. In Martin v. Clark, 135 N. C., 178, we held that the Judge had jurisdiction at chambers of an application for a mandamus to compel a County Treasurer to pay an order of the county commissioners out of a specific fund which was designated in the order, it not being a money demand within the meaning of The Code, sec. 623; Eevisal, sec. 824. The.reason assigned , for the decision is that the Treasurer is a ministerial officer, who is charged with the duty of holding the public funds and paying them out on the warrant of the commissioners. “The commissioners having audited and allowed the claim and having issued a warrant for its payment by the Treasurer out of a specific fund, it is his duty to do so, provided he has such funds in his hands applicable to such claim.” In that case there was a transfer of the cause by order to term, but for the declared purpose of trying certain issues raised by the pleadings. This was, of course, held to be proper, as it was according to the express terms of the statute. In our case, however, there is no issue of fact to be tried. All the facts necessary to entitle the plaintiff to the relief demanded have been admitted. It is true the defendant denies that he has any knowledge or information sufficient to form a belief as to whether the particular services to pay which the order was issued were in fact rendered, but it is immaterial whether he has such knowledge or not. “It cannot be within the power or duty of the Treasurer of the county to refuse to pay a cotmtv order issued by the Board of Commissioners, because he does not think it a just or lawful claim or for any other reason, which has been passed upon by the board and within its power to act.” Martin v. Clark, 135 N. C., 180. Indeed, *468 the deféndant admits that he has sufficient funds in his hands with which to pay the claim, and that he filed his answer for the purpose of ascertaining what is his legal duty in the premises and to protect himself against a wrongful payment. He cannot attack the order collaterally by merely denying that he has any knowledge of the transactions upon which it was based, no fraud or other illegality being alleged. The act required the Board of Audit and Finance to determine what the compensation of the expert should be, and, in the absence of any sufficient averment that they have acted beyond their power or that the order was fraudulently or improperly obtained, their decision is at least prima facie correct, if not conclusive. It certainly cannot be impeached by a mere technical denial that the services in payment of which it was given were in fact rendered. The fact that the members of the Board of Audit and Finance are allowed by the act compensation for only ten days in any one year at $5 a day does not require that the work of the expert accountant employed by the board shall be performed within that time, or limit his compensation to any particular amount per diem not exceeding ten days. The general power is given to employ an expert accountant and fix the compensation for his services, to be paid from the public funds, and for which an order may be issued by the board directly to the Treasurer and without the supervision or approval of the county commissioners. As the official conduct of the county commissioners and the management of the affairs of the county by them were within the scope of the . investigation permitted to be made by the Board of Audit and Finance, the Legislature perhaps thought it wise or at least prudent that the compensation of the accountant should not be subject to their control. Independence of them by the Board of Audit and Finance seems to have been considered by the Legislature as essential to a due execution of the purpose which prompted the passage of the act. Whatever may have *469 been tbe motive of tbe Legislature (and with that we have nothing to do), it is plain to us that the meaning of the act is what we have herein declared it to be. As all the facts essential to a recovery by the plaintiff were admitted, the Judge should have proceeded to determine the case at chambers, and his failure to do so was error. There would be no practical use in issuing an alternative writ, for the defendant has already had a full opportunity for showing cause why a peremptory writ should not issue, as he has filed an answer assigning every reason he can why such a writ should not be awarded. His reasons being insufficient, the plaintiff is entitled to a peremptory writ of mandamus and may apply for the same to the Judge in the county of Robeson by motion at chambers, upon giving the proper notice. Error.