Commissioners of Robeson County v. Lewis

94 S.E. 8, 174 N.C. 528, 1917 N.C. LEXIS 134

• Court: Supreme Court of North Carolina
• Decided: November 14, 1917
• Status: Published

Opinion

Allen, J.

The right of the plaintiff bank to the possession and custody of the assessments and other money belonging to the defendant, drainage district, depends on the construction of chapter 46, Public-Local Laws 1917, under which the bank was appointed the depository of certain money described in the act, and upon the validity of the contract between the drainage commissioners and the defendant, with whom the money is now deposited, and a correct determination of the questions involved require a review of the pertinent parts of chapter 442, Public Laws 1909, as amended by chapters 67 and 205, Public Laws 1911, under which the drainage district was created and organized.

The act of 1909 first deals with the organization of the district, and then with the collection of the assessments and their security.

In section 32 it is provided: The assessments shall be collected “by the same officer and in the same manner as State and county taxes are collected”; and in the latter part of the same section, that any landowner may “pay the county treasurer the full amount of his assessment and have his land released therefrom.”

In section 33 : Every person who shall neglect to pay the full amount of his assessment “to the county treasurer within the time specified shall be deemed as consenting,” etc.

Iú section 34: The assessments “shall be collected in the same manner, by the same officers as the State and county taxes are collected,” and if any installment of principal or interest shall not be paid, the holder or holders of the bonds upon which default has been made have the right of action against the drainage district or the board of drainage commissioners, “wherein the court may issue a writ of mandamus against said drainage district, its officers, including the tax collector and treasurer, directing the levying of a tax or special assessment.” “The official bonds of the tax collector and county treasurer shall be liable for the faithful performance of the duties herein assigned them. Such bonds may be increased by the board of county commissioners.”

In the latter part of section 36: “Said costs and expenses shall be paid by the order of the court, out of the drainage fund provided for that pur pose, and tbe board of drainage commissioners shall issue warrants therefor when funds shall be in the hands of the treasurer

The act of 1911 not only does not interfere with these provisions, but it reinforces the idea, running through the act of 1909, that the assessments are to be collected and held as other public money.

It provides in section 11: “The board of drainage commissioners may issue bonds of the drainage district for an amount equal to the total cost of improvement, less such amount as shall have been paid in, in cash, to the county treasurerA

If any installment shall not be paid, the holder of such bond upon which default has been made shall have a right of action against the drainage district “wherein the court may issue a writ of mandamus against the said drainage district, its officers, including the tax collector and treasurer”; and the right of action is hereby vested in the holder of such bonds “against any officer on his official bond for failure to perform any duty imposed by the provisions of this act.” “The official bonds of the tax collector and county treasurer shall be liable for the faithful performance of the duties herein assigned them. Such bonds may be increased by the board of county commissioners.”

In section 12, in respect to collecting assessments: These assessments “shall be collected in the same manner and by the same officers as the State and county taxes are collected.”

“In all other respects, except as to time of sale of lands, the existing law as to collection of State and county taxes shall have application to the collection of drainage assessments under this act.”

“It shall be the duty of the sheriff or tax collector to pay over to the county treasurer promptly the money so collected by him upon said tax assessments, to the end that the said treasurer may have funds in hand to meet the payments of principal and interest due upon the outstanding bonds as they mature. It shall be the duty of the county treasurer, and without any previous order from the board of drainage commissioners, to provide and pay the installments of interest at the time and place as evidenced by the coupons attached to said bonds, and also to pay the •annual installments of the principal due on said bonds at the time and place as evidenced by said bonds; and the said county treasurer shall be guilty of a misdemeanor and subject upon conviction to a fine and imprisonment in the. discretion of the court if he shall willfully fail to make prompt payments of interest and principal upon said bonds, and shall likewise be liable in a civil action.”

In section 13: “That the fee allowed the sheriff or other county tax collector for collecting the drainage tax . . . shall be 2 per cent of the amount collected, and the fee allowed the county treasurer for disbursing the revenue obtained from the sale of the drainage bonds shall be 1 per cent: Provided, tbat no fee shall be allowed the sheriff or county treasurer for-collecting or receiving the revenue obtained from the said bonds, nor for disbursing the revenue raised for paying off the said bonds: Provided, further, tbat in those counties where the sheriff and treasurer are on a salary basis no fees shall be allowed for collecting or disbursing the funds of the drainage district.”

In section 15 : “If the funds in the hands of the county treasurer shall be greater than is necessary to pay the annual installments or the annual cost of maintenance of the drainage works, such surplus shall be held by the county treasurer for future disbursement for other purposes.”

This summary of the two statutes, which we have largely taken from the brief of counsel, shows clearly that whatever may be the correct designation of the drainage district as a public, gwasi-public, or private corporation, that the money belonging to the corporation is treated and stamped by the law of its creation as public money, although devoted to a particular and defined use.

The assessments are to be collected by the sheriff, who collects the taxes; they are to be paid ovér by the sheriff to the county treasurer; they are protected by the bonds of these public officers, and these are the only means provided in the statutes for their collection, custody, and protection.

It therefore appears that when there was a county treasurer for Robeson County he was entitled to the money belonging to the district as public money.

How has this been changed by the abolition of the office, of county treasurer ?

’ We omit a discussion of the effect of chapter 645, Public-Local Laws 1911; chapters 581 and 674, Public-Local Laws 1915, as they are repealed by section 24, chapter 46, Public-Local Laws 1917, and proceed to consider the latter act of 1917.

By the first section it abolishes “the office of county treasurer in the county of Robeson,” and by the second it substitutes, by appointment of the county commissioners, “one or more solvent banks or trust companies located in the county of Robeson as a depository and financial agent for said county.”

If these two sections stood alone, it would follow by necessary implication that the depository designated by the county commissioners would be entitled, as successor to the treasurer, to the possession and custody of all the funds and money formerly in the hands of the county treasurer, as otherwise there would be no place provided for a part of the funds, and it cannot be supposed that the General Assembly would leave them without a custodian and without protection.

Tbe statute does not, however, stop here. It provides, in section 3: “That tbe «bank or trust company appointed as herein provided shall perform all the duties heretofore performed or required by law to be performed by the Treasurer of Robeson County and the Sheriff of Robeson County in respect to the disbursement of public funds coming into their hands by virtue of their office, as well as certain other duties specified in this act.” And in section 4: “That all moneys coming into the hands of the Sheriff of Robeson County by virtue of his office as such sheriff, or by virtue of his office as ex officio Treasurer of Robeson County, whether belonging to the general fund, general road fund, any district or township road fund, general school fund, and special school-tax fund, county sinking fund, or otherwise, and any and all public moneys, from whatever source derived and coming into the hands of the Sheriff of Robeson County by virtue of his office as sheriff, or by virtue of his office as ex officio Treasurer of Robeson County or custodian of any public funds of said county, shall be deposited by the sheriff in such bank as may be designated by the Board of Commissioners of Robeson County in accordance with the provisions of this act.” »

Note that the last section says, “all moneys coming into the hands of the Sheriff of Robeson County by virtue of his office,” “whether belonging to the general county fund ... or otherwise ” “and any and all public moneys, from whatever source derived,” thus indicating care and caution and a purpose to include every fund possible; and as the money belonging to the drainage district is collected by the sheriff and goes into his hands by virtue of his office, and is dealt with in the statutes as public money, and as the' enumeration of funds is followed by the inclusive term, “or otherwise,” so that nothing might escape, we are of the opinion that this money comes within the letter and spirit of the act of 1917, and that the plaintiff bank is entitled to the custody and possession thereof, unless the contract between the drainage commissioners and the defendant bank defeats this right.

The drainage commissioners do not claim authority to make the contract with the defendant bank except under section 7 of chapter 447, Public-Local Laws 1915, which is as follows: “That as the assessments heretofore levied to provide for the payment of the bonded indebtedness of said drainage district are due and payable on the first Monday in September in each year, beginning with the year 1915; and as under the provisions of this act the proceeds from each assessment will not be needed to pay the next installment of the principal of said bonds until 1 August of the year following the year in which the respective assessments are due and payable, and therefore the proceeds of each assess•ment would otherwise remain in the treasury of said district until the first day of August of the year following the year in which the respective assessments are to be collected, and it is advisable tbat tbe said funds should be on interest, therefore the board of drainage commissioners of said district be, and they are hereby, authorized and empowered to loan all amounts derived from the respective assessments until such time as said funds are needed to pay interest upon the bonded debt of said district or interest thereon, the said loans to be made to such bank or banks, or otherwise, and at such rate or rates of interest, and with such security for the prompt repayment thereof, as the said board of drainage commissioners may in their discretion determine: Provided, however, that no funds shall be so loaned out for a period longer than the date of the maturity of the next installment of the bonded debt of said district.”

The authority conferred is “to loan,” not to name a depository, and the commissioners can only lend “until such time as said funds are needed to pay interest,” etc., nor can they make any loan “for a period longer than the date of the maturity of the next installment of the bonded debt of said district,” and if the contract is not in accord with these requirements it is invalid, because in excess of the power of the commissioners.

"When we turn to the contract it is manifest that at the time it ivas made neither the drainage commissioners nor the defendant bank bad in contemplation a loan, and that, on the contrary, they were arranging for a depository for the funds.

The word “loan,” or “lend,” does not appear in the offer of the bank or in its acceptance by the drainage commissioners, while “deposited” is used twice in the offer and in the acceptance, and “deposit” three times in the acceptance.

The rate of interest to be paid by the defendant bank on deposits, 2 per cent, contradicts the idea of a loan,, and particularly when the drainage commissioners, claimed to be the lender, were paying 6 per cent on their bonds.

The life of the contract, extending over a period of 10 years, is also fatal to the contract, whether considered as a loan or a deposit, as the power to lend is restricted by the statute and cannot extend beyond “the date of the maturity of the next installment of the bonded debt of said district.”

We therefore conclude that the contract is not within'the power conferred by the act, and is invalid, although entered into in good faith and with a desire to subserve the best interests of the district, which fully appears from the record.

If so, the objection of the defendants that the act of 1917 impairs the obligation of the contract is without merit, as there is no obligation to impair if the contract is void.

Nor can it be said to be a taking of the property of the drainage district without due process to provide, in the statutes, under which it exists, for the collection and security of the assessments.

Tbe objection to charging interest at tbe rate of 6 per cent against tbe defendant bank from tbe date of tbe demand is not one requiring decision, as tbe judgment directs tbe drainage commissioners to repay to tbe bank ■“all interest paid under tbis judgment.”

We are therefore of opinion tbe judgment must be affirmed, but tbis does not interfere with tbe right of tbe drainage commissioners to make • loans from time to time under said act of 1915.

Affirmed.