Opinion
(Decided 27 February, 1900.)
Public Roads — Worked by Taxation — Special Act — Limited Assessment — Lowest Bidder.
1. Where, by a special act for Washington County, Laws 1897, ch. 242 (since repealed), the mode of working the public roads by taxation was adopted, the annual assessment limited to a tax of 30 cents on the poll and 10 cents on the $100 worth of assessed property, and the contract to be let to the lowest bidder; the specified rate may not be exceeded, nor may any part of the general funds of the county be applied in payment of contractor.
2. Where the work was done, but the amount bid was in excess of the fund raised under the permitted rate, an action can not be maintained for the deficiency.
ACTION upon a county road order payable to Frank Gray for $267.50 on account of fourth quarter's pay keeping in repair the public roads in Plymouth township, and by him assigned to plaintiff L. P. Hornthall, tried before Starbuck, J., at Fall Term, 1899, of WASHINGTON.
The defense set up in the answer was, that under the County Road Law, 1897, ch. 242, the repairs of the public roads were let out to lowest bidder, but that the annual assessment for payment of contractor was limited to a tax of 30 cents on the poll and 10 cents on the $100 worth of assessed property; that the amount bid was in excess of the tax levied, collected and expended in payment of road orders, and that there was nothing left to pay on the order in suit; also, that the said order was illegal and not a valid debt against the county, because issued after the tax levy had been exhausted.
The plaintiff demurred to the answer. His Honor sustained (27) the demurrer, and gave judgment in favor of plaintiff upon his claim. The defendant excepted and appealed.
A. O. Gaylord for defendants.
H. S. Ward for plaintiffs.
FAIRCLOTH, C. J., and FURCHES, J., dissent.
This is an action brought by the plaintiff, who is the assignee of Frank Gray, against the present board of commissioners of Washington County, for the recovery of an amount alleged to be due upon a county order made payable to Gray, and issued by a former board of commissioners of that county. There was a judgment below in favor of the plaintiff, from which the defendants appealed.
The General Assembly at its session of 1897 altered the then existing law upon the manner of working the public roads (which was by the impressment of a certain class of its male able-bodied citizens as were either unable or unwilling to pay the pecuniary equivalent of such labor), so far as the county of Washington was concerned. The act established the plan of taxation for the old system, a step wisely progressive, and juster, by far; and provided for the annual assessment and collection of a tax of an amount equal to 30 cents on the poll, and 10 cents on each $100 worth of the assessed property of the county, the amount to be used in payment for the work to be done each year on the public roads of the county. The roads were to be let out to be worked, to the lowest bidder.
The plaintiff and his assignor, Gray, one of the contractors, knew at the time the roads were let to the lowest bidder that the sum of the bids exceeded, by double, the amount provided for in the act. (28)
The entire amount raised by the act has been disbursed properly.
We are of the opinion that the action can not be maintained. It is true, as appears in the admissions in the pleadings, that the work was done by the contractors, and that the county has gotten the benefit of their work, and it would seem that they ought to be compensated for the same. But as the amount provided for under the act was a specific fund, it is beyond the power of the defendants to use any part of the general funds of the county or to levy any tax in excess of that which was provided by the act for the payment of the order sued upon.
The commissioners, of their own motion, under the old system of working the roads, had no power to levy a tax for any amount whatever to be used for the purpose of having the public roads worked, and the act of 1897 authorized only a specific rate of taxation and amount for that purpose.
There was error in the court below in the rendering of the judgment, and the same must be reversed and set aside.
Error.
Cited: Bunch v. Commrs., 159 N.C. 339.
(33)