#### MARTIN v. CLARK.

(Filed April 26, 1904).

1. MANDAMUS — County Commissioners — Counties—Const. N. C., Art. 1J¡, sec. S.

A mandamus will lie to compel a county treasurer to pay a warrant out of a specific fund, the warrant having been drawn by the county commissioners.

2. PROCESS — •Summons—Jurisdiction—At Chambers.

Where a summons is improperly made returnable before the judge at chambers, he should not dismiss the action, but transfer it to the civil issue docket.

ActioN by S. M. Martin against W. D. Clark, beard by Judge W. B. Allen, at Chambers, December, 1903. From a judgment for the plaintiff, the defendant appealed.

W. A. Cochran, for the plaintiff.

R. T. Poole, for the defendant.

Connor, J.

The commissioners of Montgomery County issued a warrant upon the treasurer for the sum of $600 payable to the plaintiff “on building bridge at Martin’s mill, to be paid out of the special tax funds.” The order was presented to the treasurer, who refused to pay it. Thereupon the plaintiff began this action by issuing a summons returnable before the Judge at chambers. In his complaint and in his reply to the defendant’s answer, the plaintiff alleges that the defendant treasurer has in his hands, subject to said warrant, an amount more than sufficient to pay the same. He asks that a mandamus issue directing and commanding the defendant to pay said warrant. The defendant demurred to the complaint for that the plaintiff’s *179alleged cause of action was “a money demand,” and that tbe summons should have been returnable to tbe regular term. Tbe Court overruled tbe demurrer and tbe defendant excepted. He thereupon filed an answer. The defendant moved in this Court to dismiss tbe action for tbe same cause as that set out in bis demurrer.

While the authorities are not entirely clear, we think tbe action was properly brpught. Tbe warrant or order directs tbe payment of a specific amount out of specific funds, “tbe special tax funds.” Tbe treasurer is a ministerial officer charged with tbe duty of bolding tbe public funds and paying them out on tbe warrant of tbe commissioners. This Court, in answer to tbe same objection made in Bearden v. Fullam, 129 N. C., 477, said: “This is a proceeding, not to litigate a matter to obtain a judgment for money, not to ascertain tbe defendant’s liability on an issue of whether be is indebted to tbe plaintiffs or not, but to compel a public officer to deposit public funds in bis bands in a public depository. It is not a money demand in tbe sense in which that word is used in tbe statute.” Tbe commissioners having audited and allowed tbe claim and having issued a warrant for its payment by tbe treasurer out of a specific fund, it is bis duty to do so, provided be has such funds in bis bands applicable to such claim. Tbe law commits to tbe Board of Commissioners tbe power and duty of auditing and passing upon tbe validity of claims. If they refuse to audit or act upon a claim, mandamus will lie to compel them to do so. Bennett v. Comrs., 125 N. C., 468. If after tbe bearing they refuse to allow or issue a warrant for its payment, an action will lie against tbe commissioners to establish tbe debt and for such other relief as tbe party may be entitled to. Hughes v. Comrs., 107 N. C., 598. If, however, tbe summons was improperly made returnable before tbe Judge at chambers, be should not dismiss tbe action but transfer *180it to the civil issue docket for trial, making such amendments to process and pleadings as might be necessary. Ewbank v. Turner, 134 N. C., 80. His Honor properly ordered the alternative mandamus to issue with the order to the defendant to show cause at the nest term of the Superior Court why a peremptory writ should not issue. The judgment is but an order to show cause and can do no possible harm to the defendant. If he shall show that he has no money in hand applicable to the order, or that the special tax is by law applicable to some other purposes, or any other good and lawful reason for not paying the warrant, the Court will refuse the peremptory mandamus and the plaintiff will proceed as he may be advised. It cannot be within the power or duty of the treasurer of the county to refuse to pay a county order issued by the Board of Commissioners because he does not think it a just or lawful claim, or for any other reason, which has been passed upon by the board, and within its power to act. It is different with the State Treasurer. He may refuse to pay a warrant of the Auditor if it appear that .the law under which it is issued is unconstitutional, or the claim not within the terms of the statute. Constitution, Art. XIV, section 3. If the county treasurer deem the warrant drawn in contravention of a constitutional provision or limitation he should refuse to pay it. If the Court should so adjudge upon the return to an alternative mandamus, no peremptory writ would issue. The judgment is

Affirmed.