Harris v. Board of Commissioners

163 S.E.2d 387, 274 N.C. 343, 1968 N.C. LEXIS 777
CourtSupreme Court of North Carolina
DecidedOctober 9, 1968
DocketNo. 27
StatusPublished
Cited by14 cases

This text of 163 S.E.2d 387 (Harris v. Board of Commissioners) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. Board of Commissioners, 163 S.E.2d 387, 274 N.C. 343, 1968 N.C. LEXIS 777 (N.C. 1968).

Opinion

Bobbitt, J.

The amended complaint is set out in full in the preliminary statement of the Court of Appeals. In brief summary, plaintiffs alleged that the Board of Commissioners of Washington County, in the county tax levy for 1967-1968, had voted an increase from $1.70 to $1.85 per $100.00 valuation; that the increase of 15^ per $100.00 was to supplement the salaries of teachers in the public schools of the county; and that a tax levy for this purpose had not been approved by the electorate of Washington County. Asserting the Board of Commissioners lacked both statutory and constitutional authority for such levy, plaintiffs prayed that the court restrain the levy and collection of this increase in the county property tax.

Article VII, Sec. 6, of our Constitution, which, prior to renumbering as provided by the constitutional amendment (Session Laws 1961, c. 313, s. 5) adopted at the general election held November 6, 1962, was Article VII, Sec. 7, provides: “No county, city, town or other municipal corporation shall contract any debt, pledge its faith or loan its credit, nor shall any tax be levied or collected by any officers of the same except for the necessary expenses thereof, unless approved by a majority of those who shall vote thereon in any election held for such purpose.”

[346]*346Judge Peel found as facts, in substance, that the $21,750.00 in the 1967-1968 current expense budget to supplement teachers’ salaries was to be paid from funds “wholly derived from fines, penalties, and forfeitures, and from Alcoholic Beverage Control funds”; that $34,000.00 would be available from these sources, of which $21,-750.00 had been earmarked for use in the payment of such supplement; and that “there are no other stipulated uses of these two non-tax funds in said county budget or school budget.” (Note: Funds derived from fines, penalties and forfeitures belong to the county school fund by virtue of Article IX, Sec. 5, of our Constitution.)

Article VII, Sec. 6, is not apposite if, as set forth in Judge Peel’s said findings, no funds derived from taxation would be used to pay the supplement ($21,750.00) to teachers’ salaries. These findings, which are amply supported by evidence, constituted sufficient ground for the denial of plaintiffs’ application for a temporary restraining order “pending the final hearing of this matter on its merits.” Although Judge Peel based his decision in part on this ground, the decision of the Court of Appeals is based solely on its holding that the demurrer to the amended complaint should have been sustained and the action dismissed.

It is unnecessary, in view of the ground of decision by the Court of Appeals and by this Court, to set forth additional findings of fact made by Judge Peel. Suffice to say, in addition to a finding that the Board of Commissioners at a regular meeting held July 10, 1967, adopted a resolution providing “that the Board of Education had shown necessity and peculiar local conditions to necessitate a supplement to the current expense fund,” Judge Peel found that, in fact, “there was necessity and peculiar local conditions such as to warrant a supplement to said current expense fund.”

Counties are creatures of the General Assembly and constituent parts of the State government. DeLoatch v. Beamon, 252 N.C. 754, 757, 114 S.E. 2d 711, 714, and cases cited. “(T)hey possess only such powers and delegated authority as the General Assembly may deem fit to confer upon them.” Surplus Co. v. Pleasants, Sheriff, 264 N.C. 650, 654, 142 S.E. 2d 697, 701, and cases cited. “In the exercise of ordinary governmental functions, they are simply agencies of the State, constituted for the convenience of local administration in certain .portions of the State’s territory, and in the exercise of such functions they are subject to almost unlimited legislative control, except where this power is restricted by constitutional provision.” Jones v. Commissioners, 137 N.C. 579, 596, 50 S.E. 291, 297. Accord: Ramsey v. Comrs. of Cleveland, 246 N.C. 647, 651, 100 S.E. 2d 55, [347]*34757, and cases cited. “(T)he powers and functions of a county bear reference to the general policy of the State, and are in fact an integral portion of the general administration of State policy.” O’Berry, State Treasurer, v. Mecklenburg County, 198 N.C. 357, 360, 151 S.E. 880, 882, and cases cited; Martin v. Comrs. of Wake, 208 N.C. 354, 365, 180 S.E. 777, 783. Hence, we consider first whether there was sufficient statutory authority for the challenged action of the Board of Commissioners.

Prior to the effective date (July 6, 1967) of Chapter 1263, Session Laws of 1967, the last paragraph of G.S. 115-80(a), relating to County-Wide Current Expense Fund Budget, read as follows: “When necessity is shown by county or city boards of education, or peculiar local conditions demand, for adding or supplementing items of expenditure not in the current expense fund provided by the State, the board of county commissioners may approve or disapprove, in part or in whole, any such proposed and requested expenditure. For those items it approves, it shall make a sufficient tax levy to provide the funds: Provided, that nothing in this chapter shall prevent the use of federal or privately donated funds which may be made available for the operation of the public schools under such regulations as the State Board of Education may prescribe.”

The amended complaint refers to other provisions of G.S. Chapter 115, namely, G.S. 115-116, G.S. 115-124, and G.S. 115-80(b). Plaintiffs allege, as a legal conclusion, that these statutes required approval by the electorate before the Board of Commissioners was authorized to levy a tax on property to supplement teachers’ salaries. The gist of each of these statutory provisions is stated by Judge Brock in his opinion for the Court of Appeals. Suffice to say, any doubt as to the statutory authority of the Board of Commissioners to levy a tax on property to supplement the salaries of school teachers was dispelled by the enactment of the 1967 Act, which deleted the last paragraph of Subsection (a) of G.S. 115-80, quoted above, and substituted in lieu thereof the following: “Notwithstanding any other provisions of this chapter, when necessity is shown- by the county and city boards of education, or peculiar local conditions demand, for adding or supplementing items of expenditure in the current expense fund, including additional personnel and/or supplements to the salaries of personnel, the board of county commissioners may approve or disapprove, in part or in whole, any such proposed and requested expenditure. For those items it approves, the county commissioners shall make a sufficient tax levy to provide the funds: Provided, that nothing in this chapter shall prevent the use of federal or privately donated funds which may be made available for the [348]*348operation of the public schools under such regulations as the State Board of Education may prescribe.” (Our italics.)

When a demurrer is sustained, the action will be then dismissed only if the allegations of the complaint affirmatively disclose a defective cause of action, that is, that the plaintiff has no cause of action against the defendant. Skipper v. Cheatham, 249 N.C. 706, 711, 107 S.E. 2d 625, 629; Parrish v. Brantley, 256 N.C. 541, 543, 124 S.E. 2d 533, 535.

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Harris v. BOARD OF COM'RS OF WASHINGTON COUNTY
163 S.E.2d 387 (Supreme Court of North Carolina, 1968)

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Bluebook (online)
163 S.E.2d 387, 274 N.C. 343, 1968 N.C. LEXIS 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-board-of-commissioners-nc-1968.