#### SMITH et als. v. BOARD OF COUNTY COMMISSIONERS OF BLADEN COUNTY.

(Filed 19 May, 1926.)

Appeal and Error — Highways—Bonds—Taxation—Counties—Injunction —Evidence—Pacts Found — Remanding Case.

Upon appeal from the judge in a suit to restrain the county commissioners from issuing highway bonds under a contract with the State Highway Commission, presenting the question of taxation in - excess of that allowed by statute, C. S., 1291(a), the facts found thereon by the Superior Court judge is not conclusive; but where the record evidence of the county is conflicting and inconsistent, a judgment in its favor will not be sustained and the case will be remanded.

Civil action beard by Bunn, J., at November Term, 1925, of BladeN.

Plaintiffs instituted an action against tbe board of commissioners of Bladen County, alleging that said commissioners have unlawfully entered into a contract with tbe State Highway Commission to issue bonds in tbe sum of two hundred and seventy-five thousand dollars ($275,000), and lend said amount to said Highway Commission for tbe purposes set out in tbe contract. Plaintiff further alleged that if these bonds were *776issued tbe indebtedness of tbe county would exceed tbe limit provided by section 1291(a), Consolidated Statutes, and amendment thereto. Tbe trial judge found as a fact that tbe bond issue did not exceed tbe limit prescribed by law.

From a judgment declaring tbe bond issue to be valid tbe plaintiffs appeal.

E. F. McCulloch for plaintiffs.

. H. H. Claris, McLean & Stacy for defendant.

Brogden, J.

Under section 1291(a), Consolidated Statutes, as amended by chapter 97, Public Laws, Extra Session, 1924, Bladen County cannot incur a bonded indebtedness in excess of seven per cent of tbe assessed valuation of taxable property as shown by tbe last assessment previous to tbe incurring of any new bonded indebtedness. It was tbe evident purpose of this act to limit tbe indebtedness of counties in order to protect tbe taxpayers from increasing and oppressive tax rates.

In tbe present state of tbe record it is impossible for us to determine tbe question as to what constitutes tbe bonded indebtedness of Bladen County. Tbe defendant attaches to its answer an unsigned statement purporting to be made by tbe county auditor, in which statement tbe bonded indebtedness of tbe county is listed at $438,000, but attached to tbe statement is a list of notes which tbe auditor apparently does not include as bonded indebtedness. There is also in tbe record another detailed statement from tbe auditor listing other notes not appearing in tbe defendant’s purported exhibit. In other words, tbe statement from tbe auditor, attached to tbe defendant’s answer, if correct, would indicate that tbe bond' issue comes within tbe limit. Upon tbe other band, tbe other statement from tbe auditor would tend to indicate that tbe bond issue would exceed tbe limit.

Tbe question involved is of too much importance to be determined by tbe present record. For instance, there is an item of $16,800 listed as a note in tbe statement marked “Exhibit B,” same being plaintiffs’ exhibit, with a notation that this same amount “is allowed board education should there be need above budget.” We cannot say what this language means for tbe reason that it does not appear whether or not tbe county commissioners have actually made an order to this effect, or whether any note is outstanding evidencing, this amount.

There is another item of $86,600 appearing on tbe auditor’s statement as “Exhibit B,” with tbe following notation: “State Notes.” It does not appear whether these notes were signed by tbe county board of education or by tbe county commissioners or for what purpose tbe notes were issued.

*777In suits of tbis character the appellate court may examine the evidence and reach its own conclusion as to the facts. Sanders v. Ins. Co., 183 N. C., 66; Advertising Co. v. Asheville, 189 N. C., 739.

The controlling facts cannot be ascertained in the present state of the record and the ease is remanded to the Superior Court from whence it came, to the end that an accurate and definite statement of the indebtedness of Bladen County may be submitted. Advertising Co. v. Asheville, 189 N. C., 739.

Remanded.