Code, s. 757. For time in which such demand made and action brought, see section 396. For additional annotations, see section 1385.

DEMAND. Claims must be audited and presented for payment and refused before action will lie: Leach v. Comrs., 84-830; Jones v. Comrs., 73182; Alexander v. Comrs., 67-330; Love v. Comrs., 64-706-but only necessary where claim ex contractu; never applicable to actions ex delicto, Neal v. Marion, 126-412; Sheldon v. Asheville, 119-606; Frisby v. Marshall, 119-570; Shields v. Durham, 118-450. Complaint against county or town must allege demand upon proper officers. Williams v. Smith, 134-252; School Directors v. Greenville, 130-87; Leach v. Comrs., 84-830; Jones v. Comrs., 73-182; Love v. Comrs., 64-706.

MANDAMUS TO ENFORCE PAYMENT. Debt reduced to judgment, creditor entitled to mandamus to compel payment: Fry v. Comrs., 82-304; Hughes v. Comrs., 107-598; Cromartie v. Comrs., 85-211, 87-134; Gas Co. v. Raleigh, 75-274; McLendon v. Comrs., 71-38; Johnston v. Comrs., 67101; Askew v. Pollock, 66-49; Gooch v. Comrs., 65-142; Lutterloh v. Comrs., 65-403; Pegram v. Comrs., 64-557; Winslow v. Comrs., 64-223-and that without prior demand, Nicholson v. Comrs., 121-27-and mandamus should be addressed to commissioners as board and not as individuals: Thomas v. Comrs. of Carteret, 66-521; Askew v. Pollock, 66-49. A writ of mandamus does not authorize commissioners to levy and collect taxes otherwise than as prescribed by law: Mauney v. Comrs., 71-486; see Hughes v. Comrs., 107-598; Cromartie v. Comrs., 85-211, 87-134.

When peremptory mandamus issues: Fry v. Comrs., 82-304; Edwards v. Comrs., 70-571; Uzzle v. Comrs., 70-564; Lutterloh v. Comrs., 65-405 -mandamus failing, debtor moves for attachment Fry v. Comrs., 82-307. Facts which must be shown before mandamus issues: Bear v. Comrs., 124204; Hughes v. Comrs., 107-598.

That constitutional limit of taxation has been reached is a sufficient answer by commissioners to a writ of mandamus: Hughes v. Comrs., 107598; Cromartie v. Comrs., 85-211, 87-134-but alias mandamus should issue to the end that any excess of revenue raised may be applied to debt, Cromartie v. Comrs., 87-134. That claim upon which judgment based is void is no defense to writ; unless claim shown not to be for necessary expenses: Bear v. Comrs., 122-434, modified by the same case in 124-204.

Action of debt may be maintained against county without asking for mandamus where it appears that county has property subject to trusts or such as can be reached only by supplementary proceedings: Hughes v. Comrs., 107-598.

As to enforcing judgment against county property where mandamus unavailable because tax rate up to constitutional limitation, see Hughes v. Comrs., 107-598; Winslow v. Comrs., 64-223.

Legislature can compel county to issue bonds to fund indebtedness for necessary expenses: Jones v. Comrs., 137-579-and mandamus is the proper remedy to force commissioners to comply with act "authorizing and empowering' them to fund it, same being mandatory, Ibid, overruling Jones v. Comrs., 135-218 and Bank v. Comrs., 135-230.

School orders are no charge upon public funds and payment can not be

enforced by mandamus: Bear v. Comrs., 124-204. County warrant must be paid by treasurer; he can not dispute its validity except on constitutional grounds: Martin v. Clark, 135-180.

For practice in mandamus proceedings, see sections 822-824.

1385. Itemized and verified. No account shall be audited by the board for any services or disbursements, unless it is first made out in items and has attached to and filed with it the affidavit of the claimant that the services therein charged have been in fact made and rendered, and that no part thereof has been paid or satisfied. Each account shall state the nature of the services, and where no specific compensation is provided by law, it shall also state the time. necessarily devoted to the performance thereof. The board may disallow or require further evidence of the account, notwithstanding the verification. All county commissioners acting on January the twenty-seventh, one thousand nine hundred and five, or elected theretofore, are released, whether as individuals or in their corporate capacity, from any and all penalties incurred by reason of failure to comply with the provisions of this section, prior to said date.

Code, s. 754; 1905, c. 55; 1868, c. 20, s. 10. See annotations under section 1384. Complaint against commissioner for penalty under section 3590, alleging failure to require itemized and verified account before auditing and approving claim, states cause of action: Turner v. McKee, 137-251. Provision that no account shall be audited by commissioners unless itemized and verified is mandatory, Ibid. Unadjusted claims are required to be audited and ordered paid, but absolute and unconditional obligations already ascertained and audited are per se order and authority to officer to pay: Leach v. Comrs., 84-830.

Claims must be audited at regular meeting of board: Bank v. Warlick, 125-594. Allowance of claim only prima facie evidence of correctness and order making same may be modified or annulled: Abernathy v. Pfifer, 84711; Wright v. Kinney, 123-618. Mandamus lies to compel commissioners to consider claim: Martin v. Clark, 135-179; Bennett v. Comrs., 125-469; Koonce v. Comrs., 106-192.

County warrants are not negotiable in the sense of the law merchant, though transferable so as to authorize the holder to demand payment, with or without action, in his own name: Wright v. Kinney, 123-618; Bank v. Warlick, 125-594; McPeeters v. Blankenship, 123-651.

Treasurer can not refuse to pay county warrant except on ground that its issue unconstitutional: Martin v. Clark, 135-180.

Holder of valid county warrant, who is refused payment, has two remedies against county treasurer, either to sue on his bond or apply for mandamus, of neither of which has a magistrate jurisdiction: Wright v. Kinney, 123-618.

Unauthorized endorsement of "approved," signed by chairman, of an order invalid upon its face will not render commissioner personally liable

in absence of fraud or misrepresentation: Ibid. County orders are presumed to be for necessary expenses: McCless v. Meekins, 117-34.

1386. Numbered as presented. All accounts presented in any year, beginning at each regular meeting in December, shall be numbered from one upwards, in the order in which they are presented, and the time of presentation, the names of the persons in whose favor they are made out, and by whom presented, and shall be carefully entered on the minutes of the board; and no such account shall be withdrawn from the custody of the board or its clerk, except to be used as evidence in a judicial proceeding, and after being so. used it shall be promptly returned.

Code, s. 755; 1868, c. 20, s. 12.

1387. Numbered as allowed, when. The clerk of the board of commissioners, if so ordered by the board, shall number all claims, orders and certificates that may be allowed by the board in a book kept for that purpose, and he shall annually, the day before the board proceeds to lay a county tax for the ensuing year, furnish the chairman of the board with a copy of the same.

Code, s. 751; R. C., c. 28, s. 12; 1793, c. 387.

1388. Annual statement published. The board shall cause to be posted at the courthouse within five days after each regular December meeting and for at least four successive weeks, or after each regular monthly meeting, if they deem it advisable, and for one week, the name of every individual whose account has been audited, the amount claimed and the amount allowed; and also at the same time and in the same manner post a full statement of county revenue and charges, showing by items the income from every source and the disbursements on every account for the past year, together with the permanent debt of the county, if any, when contracted, and the interest paid or remaining unpaid thereon. The board shall also publish the said statement in some newspaper in the county: Provided, the cost of such publication shall not exceed one-half of a cent a word.

Code, s. 752; 1901, c. 196; 1905, c. 227. This section does not subject a commissioner, whose term of office expired on the day of the meeting designated, to the penalty for failure to publish: Shelton v. Moody, 146

IV. FINANCE COMMITTEE.

1389. Election and duties. The board of commissioners may elect by ballot three discreet, intelligent tax-paying citizens, to be known as the "finance committee," whose duty it shall be to inquire into, investigate and report by public advertisement, at the courthouse

and one public place in each township of the county, or in a newspaper, at their option, if one be published in the county, a detailed and itemized account of the condition of the county finances, together with any other information appertaining to any funds, misappropriation of county funds, or any malfeasance in office by any county officers.

Code, s. 758; 1897, c. 513; R. C., c. 28, s. 17; 1838, c. 31, s. 1; 1871-2, c. 71, s. 1. For special provision for Robeson county, see 1907, c. 488. Mistake made in report of finance committee, money refunded to officer paying same: Moore v. Comrs., 87-209.

1390. Oath. The members of the finance committee before entering upon their duties shall, before the clerk of the superior court, subscribe to the following oath or affirmation:

"I, A. B., do solemnly swear (or affirm) that I will diligently inquire into all matters relating to the receipts and disbursements of county funds and a true report make, without partiality. So help me, God.'

Code, s. 762; 1871-2, c. 71, s. 4.

1391. Powers of. The finance committee shall have power and authority to send for persons and papers, and to administer oaths; and any person failing to obey their summons, or to produce promptly any paper relating or supposed to relate to any matter appertaining to the duties of the finance committee, shall be guilty of a misdemeanor, and on conviction in the superior court, shall be fined and imprisoned at the discretion of the court.

Code, s. 759; 1831, c. 31; 1871-2, c. 71, s. 2; R. C., c, 28, s. 17; 1883, c. 252.

1392. Penalty on officer failing to settle. If any clerk, sheriff, constable, county treasurer, register of deeds, justice of the peace, or other officer or commissioner, who may hold any county money. shall fail duly to account for the same, the finance committee shall give such person ten days' previous notice, in writing, of the time and place at which they will attend to make a settlement; and every officer receiving notice and failing to make settlement as required. by this chapter shall forfeit the sum of five hundred dollars, to be sued for in the name of the state and prosecuted for the use and at the expense of the county, unless the court shall release the officers from the forfeiture.

Code, s. 760; R. C., c. 28, s. 19; 1831, c. 31, s. 3.

1393. Statement by, published. It shall be the duty of the finance committee to make and publish their report as hereinbefore directed on or before the first Monday of December in each year.

46'

Code, s. 761; 1871-2, c. 71, s. 3.

For criminal costs for which county is liable, see section 1283 et seq. For general revenue act, see Vol. II, Revenue. For statute of limitations in claim against county, see section 396.

CHAPTER 26.

COUNTY TREASURER.

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1394. When elected. In each county there shall be elected biennially by the qualified voters thereof, as provided for the election. of members of the general assembly, a treasurer. Const., Art. VII, s. 1. Treasurer's term of office two years: Aderholt v. McKee, 65-257.

1395. How abolished. The justices of the peace in any county may abolish the office of county treasurer; and thereupon the duties. and liabilities attached to the office shall devolve upon the sheriff, who shall be ex officio county treasurer. And in any county where the office of treasurer has been abolished, the justices of the peace may also, if they shall deem it expedient to do so, restore the office of treasurer.

Code, s. 768; R. C., c. 29, s. 10; 1852, c. 6; 1876-7, c. 141; 1881, c. 362. Where there is no treasurer, sheriff is ex officio treasurer: Koonce v. Comrs., 106-198; Rhodes v. Hampton, 101-629. Justices may abolish or restore office of treasurer whenever they think desirable: Ibid. No person to fill office of treasurer when restored, county commissioners may fill until next regular election: Ibid.

Sheriff has no vested interest in office and, upon restoration of same, another person may be appointed to fill it: Ibid.

Term of office of a treasurer appointed by board of commissioners to fill a vacancy is only that of unoccupied term of his predecessor: Aderholt v. McKee, 65-257.

1396. Includes person acting as such; treasurer of county board of education. The office of county treasurer shall always, be construed to refer to, and include, the person authorized by law to perform the duties of that office in any county, if there is no county treasurer therein. The county treasurer shall be ex officio the treasurer of the county board of education.

Code, s. 770. For duties as treasurer of county board of education see sections 4152-4160. County treasurer ex officio treasurer of county board of education: Koonce v. Comrs., 106-198; Comrs. v. Magnin, 86-288, 78183.