City of Henderson v. County of Vance , 260 N.C. 529 ( 1963 )

Per Curiam.

It will -be noted that the court below, upon the facts found, held -a© -a matter of law “That the County of Vance should p-ay into the hands o-f the Clerk of the Vanice County Recorder’s Court one-half of his fees as well -as one-half of the fees of the Constables, Justices -of the Peace and Witnesses in ¡all ¡state failures.” However, the judgment entered below is to the effect that the County of Vance is and ha© been liable -since the enactment of tire Session Law© of 1949, Chapter 409, to p-ay into the hands of the Ol-erk -of the Vance County Roe-order’© Court one-half of the lawful fees of the Clark, Sheriffs, Constables, Justices of the Peace, and Witnesses in al-1 oriminial cases where the defendant .is acquitted or unable to pay ¡costs or in which a nol pros is entered.

It iis not 'ascertainable from the pleadings when this controversy arose, or foir what period oif time the County of Vance bias refused to pay one-half >of the Cleric’s fees demanded. We do not recall that any question was ¡raised on the oral 'argument before this Court with respect to the failure to pay Sheriffs’ fees. Furthermore, in the findings of fact, the icount found that prior to January 1960 the County of Vance paid into the hands of tilre Clerk of the Recorder’s Court one-haif oif the fees of the Clerk, Constable, Justices of the Peace, and Witnesses in State failure®', and that since that time the Counity of Vance has 'been paying into the hands of the Clerk only one-half of the fees of Constables, Justices of the Peace, .and Witnesses in State failures.

There are no- allegations in the pleadings with respect to the amount of unpaid costs by the County of Vance in State failures. Neither are there any allegations to show that a claim or claims for such indebtedness have been presented to the County of Vance in the manner prescribed by law.

As we construe the plaintiff’s pleadings and brief, this action was (brought for the sole purpose ,of procuring from this Count an advisory ¡opinion upon which the plaintiff may rely and bring an action, if so advised, against the defendants to. recover certain unpaid costs it alleges to be due from the County of Vance to- tire Clerk of the Recorder’s Court, the .amount of which has. not yelt been ascertained.

In /tire case of Fuquay Springs v. Rowland, 239 N.C. 299, 79 S.E. 2d 774, the action was purportedly instituted under'the Declaratory Judgment Act, to determine what items of cost should foe included .in the /bills of costs in >a .criminal action tried in the Puquay Springs Recorder’s Count. This Court, speaking through Biarmbill, J., later C.J., said: “While we concede that the Declaratory Judgment Act, G.S. eh. 1, ait. 26, is comprehensive in scope and purpose, it does not, ¡and was not 'intended to-, /embrace an action such ¡as this. We .cannot perceive that the Legislature, in enacting that statute, -intended to. vest in the superior court® of the State the general power to oversee, supervise, direct, or ■instruct .officials of inferior ¡courts in the discharge of their official duties.

“The defendant Council (Clerk of Fuquay Springs Recorder’s Count) did not .appeal. Even so, he is an' ¡official of the court. If he fails to¡ collect and account for monies rightfully belonging to plaintiff, or taxes items ¡of cost which .should not be taxed, or fails to tax items which should be taxed, the law provides an ¡adequate and expeditious remedy in behalf of those who have the right to raise the issue in /any of these particulars.”

The appeal was dismissed axud the cause remanded to toe Superior Count with instructions to- dismiss toe case from toe doickeib.

In- eur 'opinion it would be unwise for tlhis Court to ¡render 'an advisory opinion on toe questions posed, before all toe pertinent facts have been found or agreed upon as was done in toe case of Greensboro v. Guilford County, 191 N.C. 584, 132 S.E. 558.

The judgment entered below is vacated and toe cause is remanded to toe Superior Court where the plaintiff may take such action as it deems advisable in light of this opinion.

Remanded.