When the cause was (138) before us on the former appeal, and the facts upon which the culpability imputed to the defendants depended were insufficiently developed for us to decide upon the contempt, we used this language in the opinion: "It is manifest that where the public interests conflict with private interests, the latter must yield. If the entire fund which can be raised by taxation is required to meet the necessary expenses of an economical administration of the county government, and none can be diverted to pay its indebtedness without serious detriment to the public, none ought to be thus appropriated. * * * The commissioners are under an official obligation to keep and maintain the public buildings and bridges, falling under their supervision, in good repair and safe condition, and to provide for the other specified public objects." *Page 120
The facts found and reported meet the conditions and requirements of the proposition thus announced, upon which their exemption from criminal responsibility depends, and sustain their answer to the rule.
It appears that all the financial resources of the year were used or were required, and were prevented from being used by the issuing of the rule, in defraying necessary county charges, and none could be spared for an indebtedness incurred in former years without injury to the public interests. The commissioners in exercising their official functions must be left to their own judgment in determining what are necessary expenses in conducting the county government, and when acting in good faith cannot be put in contempt for a failure to do what they cannot do, with the means at their command, without a dereliction of duty in regard to other objects more imperative, and alike urgent. nor does the writ require this of the commissioners, but only that they exercise the powers confided to them to raise the means to meet the plaintiff's demand; and this, in subordination to the higher (139) claims of the public. A mandamus does not warrant the commissioners, in the words of SETTLE, J., "in levying taxes in any other manner or at any other time than is prescribed by law. Themandamus must be understood to mean that they shall levy and collect according to the general law governing the subject." Mauney v.Commissioners of Montgomery, 71 N.C. 486.
The taxes which the commissioners are empowered to levy have their limitations in the constitution, and these cannot be exceeded "except for a special purpose and with the special approval of the general assembly." Const., Art. V, Secs. 1 and 6. The construction of these clauses has been fixed by a series of decisions, from one of which French v. Commissionersof New Hanover, 74 N.C. 692, we extract the emphatic declaration of BYNUM, J.: "It admits of no dispute now that taxation for state and county purposes combined cannot exceed the constitutional limitation for their necessary expenses and new debts." Trull v. Commissioners of Madison,72 N.C. 388; Clifton v. Wynne, 80 N.C. 145; Mauney v. Commissioners ofMontgomery, supra.
In the last cited case the ruling of BUXTON, J., was approved in these words: "As they (new debts) were contracted with a knowledge of the constitutional restrictions upon the county authorities in regard to taxation, the county authorities must observe the constitutional limitations, and not assess more than double of the tax for state purposes in any one year."
In Broadnax v. Groom, 64 N.C. 244, PEARSON, C. J., speaking in reference to the exercise by the court of a supervisory control over these officers, inquires, "who is to decide what are the necessary *Page 121 expenses?" and answers his own question thus: "The county commissioners, to whom is confided the trust of regulating all county matters. Repairing and building bridges are a part of the necessary expenses of a county, as much so as keeping the roads in order or making new roads." The same language is reiterated in Satterthwaite (140)v. Commissioners of Beaufort, 76 N.C. 153. In the same opinion it is laid down that "the court has no power, and is not capable if it had the power, of controlling the exercise of power conferred by the constitution upon the legislative department of the government, or upon thecounty authorities."
In the argument here for the appellant, it is urged that the disobedience consists in the failure to levy a tax adequate to pay the plaintiff's judgment, above the legal limits, and then to ask the approval of the general assembly in order to its collection, and that this is the proper course to be pursued in obtaining legislative sanction to the proposed increase. We do not give our assent to this interpretation of the clause in the constitution which declares that "the taxes levied by the commissioners of the several counties for county purposes shall be levied in like manner with the state taxes, and shall never exceed the double of the state tax, except for special purposes and with the special approval of the general assembly." The legislative practice has uniformly been, as far as we know, to give approval in advance, and thus confer the requisite legal authority, to levy special taxes beyond the assigned limits; though if given after the levy, it would doubtless be equally effectual. This is implied in the ruling in Simmons v. Wilson, 66 N.C. 336, that a legislative approval previously given and afterwards recalled, arrested all further collections of taxes imposed by its authority, and intimated inFrench's, and assumed in Broadnax's case, already referred to.
There is a manifest propriety in asking the assent of the legislature to an increased levy in advance, as has been, we believe, the uniform practice, when such assent is necessary to its validity and the enforcement of the taxes. The tax list and the clerk's endorsement of an order for collection have, under the statute, the force and effect of a judgment and execution against the property of each person charged in the list. Acts 1879, ch. 71, sec. 25. And it (141) could not be intended that an unwarranted tax should be inserted in the process, or that the collection should be suspended until by the action of the general assembly it is legalized.
Nor are we prepared to admit that an application for approval is not one resting in the sound discretion of the commissioners, and that any judicial coercion can be used to control the exercise of their own judgment in the matter. *Page 122
"In short," is the language of the Chief Justice in a case already cited, "this court is not capable of controlling the exercise of power on the part of the general assembly, or of the county authorities, and cannot assume to do so without putting itself in antagonism to the general assembly or to the county authorities, and erecting a despotism of five men" — referring to the number of the justices then constituting this court.
But if it were otherwise, the commissioners did make the application for permission to provide for the county debt, including that of the plaintiff, and were denied authority to do so.
Upon review of the whole case we think the rule was properly discharged. But we think the refusal of the court to award an alias writ of mandamus was error, for it is in the nature of final process to which the plaintiff is entitled, so that whenever the necessary county expenses can be met without absorbing all the county revenue which can be raised under the law, the excess must be applied to the debt recovered, and this is the full extent to which the process can go.
The judgment must be thus modified, and then affirmed. Let this be certified.
Error. Modified and affirmed.
Cited: Evans v. Comrs., 89 N.C. 159; Barksdale v. Comrs., 93 N.C. 476;Mayo v. Comrs., 122 N.C. 17; Herring v. Dixon, 122 N.C. 423; Jones v.Comrs., 137 N.C. 599, 613; R. R. v. Comrs., 148 N.C. 235; Burgin v.Smith, 151 N.C. 567; Drainage District v. Comrs., 174 N.C. 740; R. R. v.Cherokee County, 177 N.C. 90; R. R. v. Comrs., 178 N.C. 452, 453; Greenv. Kitchin, 229 N.C. 460.
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