Opinion
(August Term, 1851.)
1. As the Legislature may constitute two counties out of one, it may also, as incident to that power, direct a fair and reasonable division to be made between them of any fund before raised by levies on the inhabitants of both the counties in common, and to provide for enforcing payment thereof by those who have it in hand.
2. Interpretation by the Court of the several acts relating to the division of the counties of Lincoln. Catawba, and Union.
APPEAL from Ellis, J., at MECKLENBURG Spring Term, 1849.
Craig and Lander for plaintiff.
Guion and Thompson for defendant.
The declaration is in debt for $948.12 2-3. Plea: nil debet. It was submitted to, the Superior Court upon a case agreed, with a provision for an appeal to this Court by wither party. The facts are as follows: In March, 1842, the county court of Lincoln laid a (305) tax for the purpose of raising a fund for building a courthouse and jail in that county. In the session of 1842 the General Assembly passed an act establishing Catawba County out of a portion of Lincoln, and by a supplemental act of the same year (chapter 9) it was enacted that the county trustee of Catawba, or such officer as the county court of that county might appoint, should be authorized to demand and receive from the county trustee, or such officer of Lincoln County as might have the fund in charge, such amounts as had been collected from the citizens resident within the bounds of Catawba for the purpose of erecting a new courthouse in Lincoln, and that the trustee or such officer of Lincoln should pay over on demand said amount thus collected from and paid by the inhabitants of Catawba. At the time of passing the acts of 1842, a part of the fund, to wit, $1,200, had been collected from the citizens of that part of Lincoln which formed Catawba and from the other citizens of Lincoln. The county trustee of Catawba, in 1843, brought an action against the sheriff of Lincoln, who then had the fund in charge for a certain part thereof as the proportion to which Catawba was entitled under the act above mentioned; and the same pended some time and before the erection of Gaston County as hereinafter mentioned, when it abated by the death of the sheriff, and it has not been revived nor any new action brought.
At the session of 1846 the Assemble established Gaston County out of a portion of the remaining territory of Lincoln on the south and re-annexed to Lincoln on the other side a part of the territory which constituted Catawba. By a supplemental act of that session (chapter 25) it was enacted that the county trustee, or such officer as the county court of Gaston might appoint, should be authorized to demand and recover from the treasurer of public buildings, or such officer of Lincoln as might have the fund in charge, two-thirds of all the moneys (306) which had then been collected from the citizens resident within the limits of Lincoln since March, 1842, for the purpose of erecting a new courthouse and jail in Lincoln, and that the treasurer of public buildings, or other such officer of Lincoln, to pay over two-thirds of the money as aforesaid; the county trustee, or such officer as the county court of Gaston might appoint, was authorized to sue for and recover the same, to be appropriated to the building of a courthouse and jail in the county of Gaston. The whole sum raised under the order of Lincoln County Court made at March Term, 1842, was $2,723.52 1/2, whereof the sum of $1,200 had been applied by order of the county court in payment of the debts of Lincoln County before the passing of the said acts of 1846 establishing Gaston and supplemental thereto. On 3 March, 1847, the defendant was appointed treasurer of public buildings for Lincoln, and received from the former treasurer as part of the said fund the sum of 40 cents in cash, and bonds given by sundry persons to amount of $1,421.79 1/2, then due, and he held the same on the 5th day of the same month, when the present plaintiff demanded of him the sum of $1,815.68 as the two-thirds of the whole fund of $2,723.52 to which the plaintiff alleged Gaston to be entitled. Between 5 March and 1 November, 1847; the defendant collected on the said bonds the sum of $607.68, and expended the same under orders of Lincoln County Court towards the building of a public jail in Lincoln; and on 1 November, 1847, the defendant had in his hands, as part of the said fund, the sum of $230.30 in cash and part of the said bonds remaining unpaid to the amount of $814.10; and then the present plaintiff demanded of him the sum of $948.12 2-3 as the share of Gaston County of the said fund unexpended at the erection of that county; and afterwards the whole of the said sum of $814.10 was received and expended by the (307) defendant under the orders of the county court of Lincoln towards the building of the said jail in that county. The plaintiff was duly appointed by the county court of Gaston, at February Term, 1847, treasurer of public buildings for that county, with special directions and authority to demand and receive the money to which that county became entitled under the before mentioned statutes; and the defendant having refused to pay him any part of the sums demanded by him, he brought this action in April, 1848.
It was agreed by the parties that if the court should be of opinion the plaintiff was entitled to recover by reason of his first demand, there should be judgment for him for the sum of $943.12 2-3, with interest thereon from 5 March, 1847, or for such other less sum as the court might think the plaintiff entitled to recover; and if the court should be of opinion the plaintiff was not entitled to recover thereon, but was entitled by reason of his second demand, that their judgment should be given for $542.53 1-3, with interest from 1 November, 1847, or for such other less sum to which the plaintiff might be entitled; but that if the court should be of opinion the plaintiff was not entitled to recover anything from the defendant, there should be judgment for the defendant, and that in each case the cost should follow the judgment. The Superior Court rendered judgment for the defendant, and the plaintiff appealed. The point principally discussed at the bar was as to validity of the grant to Gaston of money raised by the order of the court of Lincoln. Indeed, considering the two counties as the real parties, one would think that the object of the controversy was to have the rights of the counties declared, so that each might do or receive what pertains to it, and, therefore, that the parties should consider that the only material point. Upon it the Court apprehends there is no doubt. Unquestionably, the Legislature can divide an existing county so as to make two, (308) or to unite two counties so as to make one. It is a political power necessary to a convenient local police and also to the general welfare, and seems to be inherent in the legislative authority unless prohibited by the Constitution. There is no such prohibition in the Constitution of this State, and these powers have been habitually exercised by the Legislature. Incidental to them is the further power of providing for the defraying of the necessary expenses arising out of county organization and the administration of county police. It may be true that upon the principle of the inviolability of property consecrated by our fundamental law and in the minds of our people, the Legislature cannot direct funds levied by one county or municipal corporation from the uses of those who raised it to that of another wholly unconnected with them. But that point need not be mooted, as it does not arise here, and it is not to be supposed that there will ever be such legislative action as will raise it. If, however, two counties, for example, by united by a new name, it is clear that the contributions of their citizens then in the hands of county officers ought not to be lost by leaving the fund with the officers without any authority in the new county to recover it. It is, then, a wholesome and necessary function of the law-making power to provide in this new state of things for the accountability of the officers having the funds to those whom they originally belonged and who remain justly entitled to it as the means of saving them from again imposing on themselves new levies to meet the indispensable expenditures of their new condition. By the same reason, it must belong to the Legislature, which makes two counties out of one, to make also a fair and reasonable division between them of any fund before raised by levies on inhabitants of both the counties in common and to provide for enforcing payment thereof by those who have it in hand. That power is likewise necessary, and it is perfectly just when fairly exercised. But it is said it may be abused, and when it is that the courts are bound to (309) interpose and protect the citizens from even legislative wrong, and that there are here an apparent inequality and unreasonableness in the disposition of the fund, but the difficulty is that it cannot be judicially perceived that the provisions of the statute are unreasonable and unjust. The reasonableness of the enactments depends upon a variety of considerations which may properly influence the mind of the Legislature, but cannot be judicially ascertained or acted on. It may depend much on the proportion of territory, population, and wealth falling within the respective counties, raising a presumption that a large part of the fund had been drawn from the property or people of one of the counties, and therefore ought to go to it. A material circumstance may also be that the expenditures on permanent public erections in that part of the territory forming one of the counties were greater than in the other, as in building a courthouse, jail, bridges, or poorhouse. As the people of the new county contributed their quota to those purposes, it may be entirely just that they should, upon the division, have a larger portion of a fund happening to be on hand than they contributed to that particular fund, in order to bring them up to an equality in respect to their public erections. It is thus a case in which there is no certain measure of the shares the two counties ought to receive, but one for the exercise of a sound discretion by a just lawgiver; and, of course, if there be an abuse of power in its exercise, it is like most other cases of such abuse, beyond judicial perception or redress — as, for example, in the case of taxation. The right of Gaston County to the fund, as against Lincoln, must, therefore, be sustained to the extent of the grant. Other questions were made: whether the action will he, and if so, for what sum there should be judgment? The opinion of the Court is that it lies for any sum that was in the defendant's hands which belonged to Gaston under the statute, and which, at the demand or at any time afterwards, the defendant ought to have paid to the plaintiff for (310) Gaston. It was objected that the defendant was the officer of Lincoln and bound to account to that county for whatever money he received in his office, and to pay the same as the court of that county might order, and, therefore, that an order of the justice was requisite to the completion of the plaintiff's right. That is true in reference to a fund belonging to Lincoln, but the defendant's duty in respect to the part which the act allots to Gaston is not subject to the control of the justices of Lincoln. It may be that the defendant, on going out of office, should transfer the fund to his successor if not before made directly liable to Gaston by suit or demand; but in reference to the sum belonging to Gaston under the act, the defendant's liability to Lincoln was discharged and that to Gaston arose by the statute, at all events, upon the demand, for the legislative power to grant the thing imports that of prescribing the mode of receiving or recovering it. In respect to the sum assigned to Gaston, the act makes the defendant the bailiff of that county, and on his failure to pay it to the person appointed to receive it, the statute expressly gives to that person an action for it, which may be maintained as any other action given by statute for the benefit either of the party suing or of another. It was urged further that, by the admissions in the case agreed, the plaintiff cannot recover either of the sums in numero which he demanded, and this action for a different sum and one not demanded will not lie. But it was not requisite that the plaintiff should demand a particular sum in order to have his action. The act does not fix an exact amount, but gives a certain proportion of a fund that was in its nature uncertain. Even in an action of debt less than the sum demanded in the declaration may in such a case be recovered. Dowd v. Seawell, 14 N.C. 185. Much more can the sum recovered be different from that demanded in pais. The demand was not necessary to (311) entitle the plaintiff to any sum in particular, but if at all, it was for the sole purpose of notice of the claim of Gaston and of the plaintiff's authority to receive the money so as to enable the defendant to pay without suit.
It was next said that the action cannot be maintained because, without the defendant's default, the fund consisted of bonds when the demand was made for payment in money. But that does not answer the plaintiff's case at the commencement of the suit. We are not to say what would have been the remedy at the time of the demand and refusal. In point of fact, he waited after demand until the defendant had converted the securities into money or disposed of them as money for the use of Lincoln, and therefore the plaintiff was then entitled to recover in debt.
But, upon the facts agreed, the precise sum due to Gaston cannot be ascertained, and, therefore, there cannot be judgment on the case in favor of either party. The reason is, that prior to the grant to Gaston, there was one to Catawba of so much of the fund as had been levied for building a courthouse in Lincoln, and had been collected between March and the third Monday of November, 1842, from such citizens of Lincoln as, upon the division, fell into Catawba. The subsequent act in favor of Gaston must receive the reasonable construction, which will let it stand consistently with the previous grant to Catawba, for it cannot be supposed the Legislature meant to interfere with the rights of Catawba, on which Gaston had no claim, nor, on the other hand, meant that Lincoln should pay over again to Gaston the money which it must have been assumed Lincoln had either then paid or, at all events, was bound to pay to Catawba. The grant to Gaston, then, must be understood to be for two-thirds of the fund raised for building a new courthouse and jail in Lincoln after deducting them from the grant to Catawba. It is, therefore, immaterial to this controversy whether Catawba has recovered or relinquished her portion, since, in effect, that was excepted out (312) of the fund in the first place and Gaston's dividend comes out of the residue. Now the amount thus excepted is undefined, so that it cannot be told what the residue is after the satisfaction of Catawba's claim. The case agreed states only that before the year 1842 the sum of $1,200 was collected for both the purposes of building a courthouse and jail in Lincoln from all the citizens of Lincoln before the division then enacted, but it does not state whether there was any distinction between that part of the fund which was to pay for building the courthouse and that for the jail, or if so, how much was raised for one purpose and how much for the other; nor does it state how much of the sum of $1,200 thus raised in 1842, for either or both of those purposes, was paid by those living on the Catawba side of the line. Before the jury on nil debet, evidence may be given by the defendant on those points, so as to adjust the proper deduction to be made on account of the grant to Catawba, and of the sum not thus shown to belong to Catawba, be it more or less, the plaintiff ought to recover two-thirds, provided it be within the sum demanded in the declaration, and also does not exceed the sum in the hands of the defendant. It is conjectured very confidently that the sum thus to be found due to the plaintiff will exceed that demanded in the declaration, viz., $948.12 2-3, which is also the larger sum for which in any case judgment was, by the case agreed, to be given for the plaintiff, and, therefore, it is regretted that the controversy cannot be terminated by a judgment for that sum at once. But it cannot be done, because the Court is unable to see certainly that it would be right by reason of the vagueness of the statement in reference to the sum belonging to Catawba. It is true, the case states that $1,200 of the fund was spent in paying the debts of Lincoln before the act of 1846, but it does not appear that it was the same $1,200 which was collected in 1842, or that this last sum had been kept separated from the residue of the fund; hence we are unable to disconnect the claim (313) of Catawba from the fund in the defendant's hands so as to see that out of it the plaintiff is absolutely entitled to any particular sum. The result is that there cannot be judgment for the defendant, because it is certain that he is indebted to the plaintiff, and that there must be judgment against him for some amount; yet judgment cannot be given here against him because, by reason of the imperfection of the case agreed, it cannot be ascertained in what sum in particular he is indebted. The judgment must, therefore, be reversed and the cause remanded with directions for a venire to try the issues.
PER CURIAM. Venire de novo.
Cited: McCormac v. Comrs., 90 N.C. 445.