Dry v. Board of Drainage Commissioners

11 S.E.2d 143, 218 N.C. 356, 1940 N.C. LEXIS 154

• Court: Supreme Court of North Carolina
• Decided: October 30, 1940
• Status: Published

Opinion

Seawell, J.

In tbe chapter on Civil Procedure and sub-chapter relating to mandamus, tbe following occurs: “867. For money demand. In application for a writ of mandamus when tbe plaintiff seeks to enforce a money demand, tbe summons, pleadings and practice are tbe same as prescribed for civil actions: ‘Provided tbat in all applications seeking a writ of mandamus to enforce a money demand on actions ex contractu against any county, city, town or taxing district witbin tbe State, tbe applicant shall allege and show in tbe complaint that tbe claim or debt has been reduced to a final judgment establishing what part of said judgment, if any, remains unpaid, what resources, if any, are available for tbe satisfaction of tbe judgment, including tbe actual value of all property sought to be subjected to additional taxation and tbe necessity for tbe issuing of such writ.”

Apparently tbe complaint in this case was drawn without reference to this statute, since it merely sets up tbe amount and ownership of tbe bonds, their maturity and demand, with other more formal allegations, and asks that mandamus may issue requiring tbe imposition and collection of assessments for their payment. Prayer for judgment for tbe money is not specifically made.

No doubt, judgment for recovery of.the money due upon tbe bonds was correctly entered, since tbe plaintiff is entitled to any relief which tbe facts set up in tbe complaint warrant. Knight v. Houghtalling, 85 N. C., 17; Gattis v. Kilgo, 125 N. C., 133, 135, 34 S. E., 246; Bolich v. Ins. Co., 206 N. C., 144, 172 S. E., 320; McNeill v. Hodges, 105 N. C., 52, 11 S. E., 265. However, a serious question arises as to whether or not tbe plaintiff is entitled to sue for judgment on tbe bonds and for a writ of mandamus in tbe same action.

Prior to tbe 1933 amendment, tbe writ of mandamus was available to compel tbe levy of taxes and assessments to pay tbe principal and interest on bonds and liabilities ex contractu which bad not been reduced to judgment. Casualty Co. v. Comrs. of Saluda, 214 N. C., 235, 238, 199 S. E., 7. But, under chapter 349, Public Laws of 1933, amending C. S., 867, tbe petitioner for mandamus must allege and show that tbe claim has been reduced to judgment. Whether tbe purpose of tbe statute might not be satisfied by uniting a cause of action for tbe recovery of tbe money and a petition for mandamus to effectuate tbe judgment in tbe same action, see C. S., 5356.

It is true that tbe use of tbe writ of mandamus in matters of this kind has been much simplified: “Such proceedings are not proceedings in equity. Walkley v. Muscatine, 6 Wall. (U. S.), 481; Thompson v. Allen County, 115 U. S., 550. Under our own practice, mandamus is put to statutory uses, and both by custom and authority has been deprived of much of its common law character. Tbe writ is no longer, as at common law, a high prerogative writ; Belmont v. Reilly, 71 N. C., 260; Burton v. Furman, 115 N. C., 166, 168, 20 S. E., 443; and tbe court has no discretion to refuse it when it is sought to enforce a clear legal right to which it is appropriate. Hammond v. Charlotte, 206 N. C., 604, 175 S. E., 148; Hickory v. Catawba County, 206 N. C., 165, 173 S. E., 56; Braddy v. Winston-Salem, 201 N. C., 301, 159 S. E., 310; Cody v. Barrett, 200 N. C., 43, 156 S. E., 146; Hayes v. Benton, 193 N. C., 379, 137 S. E., 169; Person v. Watts, 184 N. C., 499, 115 S. E., 336. Mandamus is as much an instrument of enforcement at law as it is an aid in equity, and, as sought here, may be considered the equivalent of execution. Bear v. Comrs., 124 N. C., 204, 210, 32 S. E., 558; United States v. Oswego, 28 Fed., 55; Chicago v. Hasley, 25 Ill., 595.” Casualty Co. v. Comrs. of Saluda, supra.

Still our statute seems to be reminiscent of the equitable origin of the proceeding, having regard for matters that have been heretofore cognizable in equity when the writ was discretionary. It does more than require that judgment be taken before the remedy is available: It must be alleged and shown “what resources, if any, are available for the satisfaction of the judgment, including the actual value of all property sought to be subjected to additional taxation and the necessity of such writ.” There is no averment of this sort in the complaint and no corresponding proof. But to what extent these considerations condition proper exercise of the writ, we do not find it necessary to determine at this time. The statute was enacted for the protection of municipalities and taxing bodies, and we do not question that this protection may be waived. Failure to assert it in apt time will have that effect. Cameron v. McDonald, 216 N. C., 712, 715, 6 S. E. (2d), 497.

We then have to consider the case upon the specific exceptions taken upon the trial.

The appeal is based upon supposed error in the trial court in failing to take certain action demanded by the defendants: (1) To instruct the Board of Drainage Commissioners as to its duties with respect to levying the special assessment; (2) to determine how many of the landowners had paid in cash the total amount of their assessments before the bonds were issued; (3) to make Cabarrus and Mecklenburg counties parties to the action, to determine the respective liabilities of each; (4) to make all bondholders parties to the action; (5) to declare the liabilities of various classification of lands in their present status with respect to the additional assessment to pay off the unpaid bonds and accrued interest; (6) to insert in the judgment a clause that the judgment should not be a prior lien to any other unpaid bonds issued by the Drainage District, but that it should share pro rata in the assessments of the district.

While the plaintiff did not make any motion to strike out the extraneous matter contained in defendants’ further answer, this did not prevent the court from confining the investigation to the field of inquiry limited by the complaint and the relevant portions of the answers and the issues thus raised. The issues between the plaintiff and the defendants were clear-cut and none of the matters excluded by the court had a relevant bearing thereupon or could in any way delay or defeat the plaintiff in its action.

None of the parties suggested by the defendants were necessary to a determination of the immediate rights between the parties to this action with respect to the relief demanded, however necessary the final adjustment of the financial affairs of the district may be. Casualty Co. v. Comrs. of Saluda, supra.

It must be admitted that very serious questions are presented to commissioners who have the financial affairs of a district in charge, and perhaps questions still more serious confront its creditors. In the present proceeding, however, the court is unable to recognize the propriety of any proceeding or device which might result in something in the nature of a declaratory judgment, in which advice might be given upon the complicated questions presented to the court. Many of them, no doubt, in a proceeding properly constituted, might be solved by court action. In the present case, however, there seems to be no legal reason why the plaintiff is not entitled to his relief without reference to them. Casualty Co. v. Comrs. of Saluda, supra.

We find no error in the trial, and the judgment is

Affirmed.