County Board of Education v. County of Wake

Allen, J. The board of commissioners of the county of Wake is required by the act furnishing the machinery for the listing and collection of taxes to cause two copies of the tax lists for each township to be made out, and provision is made in the act that the compensation allowed by the commissioners for the service “shall not exceed 5 cents for each name appearing on the tax lists, to be paid by the county treasurer out of the county funds.” It is upon the use of the words “county funds” instead of “county fund,” and because of the construction placed on tbe term “county taxes5’ in Board of Education v. Comrs., 137 N. C., 63, that the defendant rests its contention that it has the right to charge against tbe sebool taxes a proportionate part of tbe éxpense of making out tbe tax lists. *116 The position, dependent upon the language used, would have more force if thére was not more than one tax levied, collected, and used in the county of Wake, exclusive of school taxes, which are levied by the State, and it gives no significance to the words “paid by the county treasurer.” The county treasurer is also treasurer of the county school fund, which he is required to keep separate and distinct from all other funds, and he executes a separate bond to secure the faithful performance of his duties as treasurer of the school fund. Rev., sec. 4152. The register of deeds must furnish to the county board of education an abstract of the tax lists as soon as they are made out, showing the school taxes in separate columns (Rev., see. 4110). The sheriff is required to pay to the treasurer of the school fund the whole amount for school purposes, less his lawful commissions for collecting (Rev., sec. 4111), and the treasurer of the school fund cannot pay out any of the money coming into his hands as such except upon the order of the county board of education and in certain cases upon the order of two committeemen of a school district approved by the county superintendent. Rev., see. 4154 et seq. These statutes and the Machinery Act, all relating to the same subject-matter, must be construed together and harmonized if possible, so that some significance may be given to each and every part. (Cecil v. High Point, 165 N. C., 431), and when so considered it is clear that the treasurer is designated as “treasurer of the school fund” when his duties in reference to the school taxes are involved, and as “county treasurer” when reference is made to the other taxes going into his hands. The school taxes never reach the county treasurer, as the sheriff must pay the whole of them directly to the treasurer of the school fund (Rev., sec. 4111), and no authority is conferred upon the commissioners to make any order which could be paid out of the school fund. It follows, therefore, that an order “to be paid by the county treasurer out of the county funds” gives no authority to direct any part of the taxes collected for schools. The tax for schools is a State tax, and it was not intended that they should contribute to the ordinary expenses of the county. In Parker v. Comrs., 104 N. C., 169, deciding the question as to whether license taxes imposed upon liquor dealers by Revenue Act of 1879, and directed to be paid to the treasurer of the county board of education for the benefit of the public schools in the county in which they were collected, were State or county taxes, the Court says: “That tax thus levied and collected for school purposes is not, in any proper sense, a county tax; it is levied by the State and State authorities as a *117 part of tbe school fund of the State, and is paid to the treasurer of the county board of education for convenience sake and to facilitate its distribution. The county authorities, as such, do not control and use or distribute it as county revenue”; and again, in Board of Education v. Comrs., 113 N. C., 389: “'But it would seem that all of the money collected for educational purposes should have been paid over by the sheriff to the county treasurer in his capacity as treasurer of the board of education, and held by him, subject to the orders of said board. . . . The defendant board (commissioners), as such, had no power over that fund, unless it was its duty to prosecute a suit to compel its payment to him as a part of the county school fund, and the treasurer was not bound to transfer it on the order of the county commissioners to the fund held by the county for general purposes.” The ease of Board of Education v. Comrs., 137 N. C., 63, relied on by the defendant, furnishes an argument in behalf of its contention; but different statutes were involved, and the decision rests upon a principle in harmony with our conclusion. That case held that because of the onerous duties imposed upon the sheriff, and the penalties and forfeitures to which he was subjected by section 4111 of the Kevisal, which did not provide at that time any remuneration to the sheriff for his collection of the school taxes and for his responsibility in regard thereto, it was to be presumed that the Legislature did not intend to impose these duties and burdens upon the sheriff without compensation, and the Court construed as in pari materia section 723 of The 'Code, which allowed to the sheriff the same commissions on county taxes as allowed to him on State taxes. The Court said: “We are of the opinion that, so far as this action is concerned, the words ‘county taxes’ include all amounts levied by taxation, and which are to be used in the counties where they are collected and where they are paid to the county treasurer”; and further: “We are not inadvertent to the fact that all taxes levied for school purposes are known as State taxes, because they are assessed and levied by the counties by the direct mandate of the General Assembly and the rate of taxation fixed by that body.” In other words, it was decided, as the sheriff was required to collect the school taxes, it was presumed that it was not the intention of the General Assembly that he should receive no compensation for the service; that the school tax was a State tax, and as no commissions were allowed the sheriff in the school law, that he was entitled to be paid under section 723 of The Code (1883), providing that he should receive the same commissions on county and State taxes. . We find no error except in the form of the judgment. An alternative writ of mandamus should issue before the peremptory writ is applied for. 26 Cyc., 487. Modified and affirmed.