This case is before us on a petition to rehear, the first opinion having been filed at the Spring Term, 1898, 122 N.C. 434. After further argument and a closer investigation, we have arrived at the conclusion that there was error in the former opinion in its reversal of the judgment of the Superior Court. That judgment ought to have been affirmed.
The plaintiff in his complaint alleged that the defendants were indebted to him in the sum of _____ dollars due by eight judgments originally had in a court of a justice of the peace, and afterwards docketed by transcript in the office of the clerk of the Superior Court of Brunswick, and prayed judgment that the defendants be compelled to levy a tax to pay the judgments and costs. The defendants in their answer admitted that the judgments were procured as alleged, but averred that they were not valid and binding against the defendant, for the reason that they were obtained against a former board of commissioners on school claims for which neither the defendants nor their predecessors were liable in law. The defendants further aver that the judgments were obtained on certain school orders issued about the year 1886 by the school committeemen of certain school districts of Brunswick County upon the treasurer of the county board of education, and that they were not a valid charge against the defendants, the board of commissioners, or a charge upon the public funds of the county, or upon any other fund except those expressly set apart for school (206) purposes. And for a further defense the defendants aver that section 7, Article VII of the Constitution of North Carolina prohibits any tax from being collected or levied by any county, city or town, or other municipal corporation, except for the necessary expenses thereof, unless by a vote of the majority of the qualified voters therein; and the defendants aver that the consideration upon which the judgments were had was not for the necessary expenses of the county or for a debt contracted in the manner provided by the Constitution.
When the case came on for trial a jury trial was waived and it was agreed that his Honor who presided should find the facts, and the case was heard by the court by the consent of counsel of the plaintiff and of the defendants. What facts could have been in the minds of the counsel, except the facts connected with the consideration of the claims on which the original judgments were procured, and those connecting the judgments of 1894, docketed in the Superior Court by transcript, as being the same judgments which were originally rendered by the justice of the peace in 1888? No other facts could have been referred to, for they were raised by the pleadings, and the defendants in their answer had admitted that the judgments had been obtained by the plaintiff, as set out in his complaint. The plaintiff having failed to plead his judgments *Page 157 in estoppel of the matter set out in the answer, or to demur to the answer, waived his rights as to any advantage which the law had given to his position, and by his agreement to submit the facts to the finding of the court, went to the hearing on the merits of the original consideration upon which the judgments were granted. "Numerous decisions in this country and England hold that where a party has an opportunity to plead an estoppel, and voluntarily omits to do so, but goes to the issue on the facts, he thereby waives the estoppel, and the jury (207) is at liberty to find according to the facts of the case. So, where the advantage might have been taken of an estoppel by means of a demurrer, and the party fails to so take advantage of it, he will be held to have waived the estoppel." 8 A. E., 13, and cases there cited. If the plaintiff intended to avail himself of the full benefit and effect of his judgments, it was incumbent on him to do so by some proper pleading, because of the nature of defendant's answer; for, though mandamus is in the nature of an execution, yet it is in the nature of a civil action; it is commenced by summons, and the pleadings and the practices are the same as are prescribed for the conducting of civil actions. The Code, sec. 623.
His Honor found as a fact, upon the evidence, none of which was objected to, that the original judgments were obtained upon certain school orders issued during the year 1886, and that the judgments of 1894 in the Superior Court were the same judgments which were obtained before the justice of the peace in 1888, and that there was nothing in the record or judgment of 1894 to show what the cause of action was, except that they were brought on former judgments. Now, upon his Honor's findings of fact, the legal question arises, Were school orders issued in 1886 a debt for which the county was liable, and for which the board of commissioners could be made to provide by taxation? We think out.
The law in force at the time when the school orders upon which the plaintiff's action was brought were issued was The Code, ch. 15, as amended by chapter 174, Laws 1885. Section 2551 of The Code provides that the county board of education shall, on the first Monday in January of each year, apportion among the several districts all (208) school funds, specifying how much of the same is apportioned to each race, and give notice thereof to the school committees of the several districts of the county. It is further provided in the same section that the sums thus apportioned to the several districts shall be subject to the orders of the school committees thereof, for the payment of the school expenses authorized by law. In section 2555 of The Code it is provided that "all orders upon the treasurer of the county board of education for school money for the payment of teachers, duly countersigned by the *Page 158 county superintendent of public instruction, and all orders for the purchase of sites for schoolhouses, and for the costs of building, repairing and furnishing schoolhouses, shall be signed by the school committee of the district in which the school is taught, or in which the site or schoolhouse is situated, which orders, duly endorsed by the person to whom the same are payable, shall be the only valid vouchers in the hands of the treasurer of the county board of education, to be paid out of the funds apportioned to the district in which the schoolhouse is erected."
The county treasurer of each county was required to receive and disburse the public-school funds, not under his general bond, but under a separate bond, conditioned for the faithful performance of his duties as treasurer of the county board of education. The county board of education were empowered, if they deemed it necessary, to require the treasurer of the county board of education to strengthen his bond, and for any breach of that bond action was to be brought, not by the county commissioners, but by the county board of education. The Code, sec. 2554.
The treasurer of the county board of education was required to open accounts with each public-school district, and report yearly to each school committee the amount apportioned to the respective districts for the year, and to the county board of education the amounts (209) received from all sources for public-school purposes.
From this review of the law in force when the school orders were issued, upon which the plaintiff's judgments were obtained, it appears that there was a complete separation of the school funds from the general county fund upon the apportionment being made, and from that time all control of the same by the county commissioners ceased; that the funds were taken charge of by the treasurer of the board of education under a separate bond; that the disbursements were made by that officer under orders signed by the school committee; that the accounts of the school fund were kept by that officer and the several school committees, and a report, yearly, to the county board of education made of all receipts of school funds by him, and the amount apportioned to each district was the fund out of which school orders were to be paid.
The county, therefore, through the board of commissioners, was not liable for the debt upon which those orders were issued.
If the amount apportioned to the district or districts upon whose committee or committees the orders were drawn, had been in the hands of the treasurer of the board of education, and he had defaulted in their payment, then the law required action for such defalcation to be instituted against that officer and his bond. If there never had been in the treasurer's hands funds to meet those orders, because they were improperly issued, then there was no liability on either the county or the treasurer. *Page 159
But besides the view of this case as expressed above, we are of the opinion that before mandamus can be issued to compel the board of commissioners of a county to levy a tax to pay a judgment against the commissioners, the plaintiff — judgment creditor — must show (210) affirmatively by the record or other competent evidence that the consideration of the debt upon which the judgment was obtained was of such a character as to fall under the head of ordinary or necessary county expenses. Any other view of the law would enable a board of county commissioners to levy a tax to pay a debt reduced to judgment by confession or by default, which debt, under section 7 of Article VII of the Constitution, the county would be prohibited from contracting, unless the question was submitted to a vote of the qualified voters of the county. Such a course would in effect be a convenient method whenever the county commissioners might choose to do so, of destroying a most salutary provision of the Constitution. It would be equivalent to holding that, by a rule of pleading, a plain provision of the Constitution can be abolished. No technical learning based on the rules of pleading can force us into such a conclusion.
The prayer of the petitioners must, therefore, be granted. The case must be reheard, and the judgment of this Court entered therein at the Spring Term, 1898, must be set aside and judgment entered at this term affirming the judgment of the Superior Court.
PETITION ALLOWED.