Craven-Pamlico County NcArchives Court.....Pamlico County, Craven County V. 1875
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Source: N C Reports
Written: 1875

THE BOARD OF COMISSIONERS of CRAVEN COUNTY v. THE
BOARD OF COMMISSIONERS of PAMLICO COUNTY.

When in the Act establishing a new county, providing for the appointment of 
Commissioners to adjust the amount of the public debt owing by the county from 
which the new one is formed between the two, and assign to the new county its 
proper proportion of the stock, &c., owned by the old, it is enacted, "That 
should the Commissioners of Craven (the old county) neglect or refuse to turn 
over to the Commissioners of Pamlico (the new county) their portion of the 
stocks, &c., within one year after the demand for such settlement has been 
made by the Commissioners of Pamlico county, then the Commissioners of said 
Pamlico county, and the citizens thereof, shall not be held bound to Craven 
county, for any part of said debt contracted as subscription, &c; and on the 
3d of February, 1878, the Commissioners of Pamlico demanded such settlement 
and transfer, which was not complied with by Craven county until 3d of 
February, 1874:  Held, that the Act, containing the foregoing provisions did 
not intend to make the precise time of the essence of the obligation, and that 
Craven county therefore had a right to recover the amount ascertained and 
agreed upon, and is entitled to a mandamus, if  the same is not paid within a 
reasonable time. (The case of Moore v. Ballard, 69 N. C. Rep 21, cited and 
approved.)

      CIVIL ACTION, tried before Seymour, J., at Spring Term, 1875, Lenoir 
Superior Court.

      The action was commenced at Spring Term, 1874, of Pamlico Superior Court 
to recover the sum of thirty-five thousand four hundred and nineteen dollars 
and thirty-three cents, claimed to be due the plaintiffs by the defendants as 
the portion of the debt of the county of Craven, assessed to be paid by the 
county of Pamlico, in pursuance of the provisions of Chap. 182 Sec 2 Laws of 
1871-72, and also for a mandamus to enforce the payment of the same.

     Among other defences, the defendants insisted that the plaintiffs had 
failed to settle within one year after the demand (settlement, as provided in 
said act, and that according to the provisions of the act aforesaid the 
defendants were discharged from all liability on that account.

     Exceptions were taken to the rulings of his Honor upon this and other 
points
not pertinent to the case as decided in this Court.

     All other facts necessary to an understanding of the case will be found 
in the opinion of the Court.

     Both the plaintiffs and the defendants appealed.

     R. F. Lehman, for the plaintiffs.
     Smith & Strong, contra.

     RODMAN, J.   By the act, chapter 182, of 1871-`72, it was provided that a 
new county, to be called Pamlico, should be formed out of portions of Beaufort 
and Craven counties, provided that the voters of the territory, to form the 
new county, should approve the act and assume the obligation to pay the 
proportionate part of the new county in the debts of Beaufort and Craven 
counties.  The voters of Beaufort rejected so much of the act as related to 
them.  The voters of that part of Craven which was concerned, accepted it, and 
that part alone, is now embraced in the county of Pamlico.  The name of 
Beaufort county may be henceforth omitted in the consideration of this case.

     By chapter 182, section 11, of the acts of 1871-'72, it is required that 
the Commissioners of Pamlico and Craven should appoint commissioners to 
ascertain what part of the debt of Craven should be assumed by Pamlico; the 
adjustment to be based on the amount of taxable property and polls in each 
county, according to the valuation and enumeration of 1860, when the debt was 
contracted.'  The act further provided, that should the Commissioners of 
Craven neglect or refuse to turn over to the Commissioners of Pamlico their 
portion of stocks in the Atlantic & N. C. R. R. Co., or any other bonds or 
stocks held by the county of Craven, "within one year after the demand for 
such settlement has been made by the Commissioners of Pamlico county, then the 
Commissioners of said Pamlico county, and its citizens thereof, shall not be 
held bound to Craven county for any part of said debt contracted as 
subscription to the Atlantic & N. C. R. R."

    On February 3d, 1873, Pamlico county demanded a settlement from Craven 
county; commissioners were thereupon appointed by the two counties, who 
reported that Pamlico county should be bound for the fifteenth part of the 
debt of Craven, and should receive the same proportion of the stock held by 
Craven in the A. & N. C. R. R. Co.  This report was accepted by Pamlico on 
April 19, 1873, and by Craven on February 3d, 1874, on which day the 
Commissioners of Craven caused to be transferred on the books of the Company, 
two hundred shares of the stock aforesaid, to the county of Pamlico.  This 
county, when afterwards informed of the transfer, refused to accept it, and 
contends that, by the terms of the act, it is discharged from liability for 
any portion of the debt of Craven, by reason of its failure to make the 
transfer within a year after the demand.

    This is the only defence which goes to the whole case.  There were some 
other questions relating to the amount and form of the judgment, which will be 
noticed in order.

     I.  We consider that it is unnecessary to decide the question, which was 
argued with much earnestness and learning, by the respective counsel, whether 
the year after the demand for a settlement expired at midnight on February 2d, 
or whether Craven still had the next day within which to accept of the report 
of the Commissioners, and to make the transfer of stock.  We are of opinion 
that the act in question did not intend to make the precise time of the 
essence of the obligation.  Divers causes may be imagined, which might 
protract a settlement, without any dilatory intent on either part, and no 
wilful delay is imputed to Craven in this case.   Analogies may be found in 
the doctrines of Courts on contracts to convey land, and pay the price, within 
a certain time.  In such cases, in general, time is not of the essence of the 
contract, though it may be made so.  In this case there is no reason why it 
should have been made so.  

     The error of the defendant consists in assuming that the act of the 
Legislature created the mutual rights and obligations of the parties instead 
of merely providing a convenient means for adjusting them equitably.

     The law, as to the effect of a division of a county upon its 
indebtedness, cannot be said to be settled in the United States.  Expressions 
may no doubt be found in decided cases which imply the proposition of the 
defendant; but in no case which I have seen have they been necessary to the 
decision; and with great respect for the courts to whose reports we refer, we 
think such expressions were inconsiderate, and that the learned judges did not 
give due to attention to the equities of the parties which existed before any 
legislation, to the end of defining and adjusting them.  When a county 
contracts a debt, the obligation must be that it will provide for its payment 
by taxes upon all taxable subjects within its jurisdiction, to the extent of 
its legal powers.  When such debt is created with the consent of the State, 
that is to say, in conformity to law, there is an obligation implied on the 
part of the State that it will not materially and injuriously diminish the 
fund which is looked to at the time of the contract as the security for its 
payment.  This principle may not apply, as between the creditors and the 
original or old county, provided, the subjects of taxation left in the old 
county, after the division, still constitute an ample fund from which the 
creditors may enforce payment without any greater inconvenience by reason of 
the division.    Moore v. Ballard, 69 N. C., 21.

     As between the taxpayers of the two counties, we know of no reason why 
the general principles of equity which govern the relations of joint or common 
debtors, as between themselves, should not apply, subject to such exceptions 
as the nature of the case may require.  It is of course competent and proper 
for the Legislature to define these equities, and to provide for their 
settlement, and unless a Legislature should in such definition and regulations 
clearly violate some principle of natural equity or justice, or impair the 
obligation of some contract, it would be the duty of the courts to aid and 
effectuate the intent of its legislation.

     Nothing of that sort is alleged in this case.  We are of opinion, 
however, that there were equities, amounting to an implied contract, between 
the two portions of the divided county which the Courts were competent to 
enforce without any aid from special legislation to that end.  And if it were 
conceded, (as it is not, but the contrary is believed,) that the Legislature 
intended to discharge Pamlico, as between it and the remaining portion of 
Craven, from its obligation to pay a just proportion of the common debt in the 
event that Craven should fail to make a division of the common property by a 
certain day, such discharge would impair the obligation of the implied 
contract between the tax payers of the two present counties represented by 
their respective Commissioners, and would be void.  Even if Craven had refused 
to assign to Pamlico its portion of stocks, its obligation to do so could have 
been enforced.  In using the term "common property," we do not mean to include 
in it the court house, jail, &c., as all the cases hold that in the absence of 
a legislative provision, these belong to the county in which they are locally 
situate.  The county of Craven is entitled to a judgment for the amount of the 
debt which is paid since the division, according to its demand, subject to the 
set-off claimed, which is conceded to be just; and is also entitled to a 
mandamus to the Commissioners of Pamlico, requiring them to pay such sum out 
of any moneys in the county treasury not needed for other county purposes, and 
to pay the residue by a levy of taxes as soon as conveniently may be done.

     II.  Craven is also entitled to a judgment that Pamlico is liable to pay 
the holders of the bonds of Craven, issued for the benefit of the railroad, 
its proportion as ascertained by the report of the principal and interest 
thereof, accrued, due and payable since the last payment by Craven, on behalf 
of Pamlico, or to become payable hereafter; and in case payment of such dues 
shall not be duly made by Pamlico, then Craven will be at liberty to move from 
to time to time in the Superior Court in which this action may be pending, for 
a mandamus requiring the Commissioners of Pamlico to pay their proportion of 
such interest and principal, or in due time, by a levy of taxes, to provide 
for the payment of the same.

      It is unnecessary to go into further detail in this opinion.  A judgment 
will be drawn in conformity with it, and the case is remanded to the Superior 
Court, to be further proceeded in conformity to this judgment.

Let this opinion be certified.

PER CURIAM.						
Judgment accordingly.

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