#### LOTTIE E. LEWIS, Treasurer of Wake County, v. BOARD OF COMMISSIONERS OF WAKE COUNTY et al.

(Filed 3 November, 1926.)

1. Roads and Highways — Bonds—County Commissioners — -Loan of Funds —County Treasurer — Contracts—Custody of Funds — Statutes.

Where a county has issued bonds (C. S., 3634 et seq.), for the purpose of lending their proceeds to the State Highway Commission, to be used for the construction of certain highways within the county, and the county commissioners have such proceeds on hand, they may designate the banks in which they are to be deposited (C. S., 3634, 3655), and mandamus by the county treasurer will not lie for control of the funds as a part of the general county funds coming within her control, under the provisions of the statute. C. S., 1393.

2. Same — Mandamus.

Mandamus will not lie against public officials to compel the performance of an act unless the right is clear and unequivocal, or where its existence is in doubt under a statute relating to the subject.

Appeae by plaintiff from Barnhill, J., at March Term, 1926, of Wake.

On 4 August, 1925, the board of commissioners of Wake County entered into a contract with the State Highway Commission, whereby it was agreed that the county would lend to the commission funds not exceeding $1,300,000 for the purpose of paving certain roads in the county, known as Routes 50, 21, 90 and 91. To provide these funds the board ordered that an election be held on 20 October, 1925, to ascertain the will of the qualified voters of the county on the question of issuing bonds of the county in the proposed amount, and a majority of the qualified voters favored the proposition submitted. The bonds were sold for $1,303,250, which amount, less $335,250 paid to the highway commission and $3,042.50 disbursed for necessary and lawful expenses incident to the sale of the bonds, is now in certain banks to the credit of the board of commissioners, acting, they claim, as the county road commission. The plaintiff alleges that she is entitled to the funds; that the board wrongfully withholds the funds from her; and she asks that a writ of mandamus issue ordering the defendants to turn over to her the amount derived from the sale of the bonds.

On the hearing it was adjudged that the plaintiff is not entitled to the relief demanded, that the board of commissioners, acting as the county road commission, is entitled to the custody of the funds, and that the writ of mandamus be denied.

The plaintiff excepted and appealed.

*457 N. 7. Gulley and B. N. Simms for plaintiff.

P. J. Olive and J. W. Bailey for defendants.

Adams, J.

It is tbe duty of the county treasurer to receive all moneys belonging to the county. C. S., 1393. The plaintiff alleges that by virtue of this statute she is entitled to the fund derived from the sale of the bonds. "Whether she is the proper depositary is the question to be decided.

The statutes relating to general road improvement provide that under certain conditions bonds may be issued by the commissioners of any county for the purpose of laying out, opening, altering, or improving the public roads and bridges of the county, and that all moneys derived from the sale of such bonds shall be deposited by the commissioners in solvent banks paying the highest rate of interest on daily balances. C. S., 3634, 3655. The‘bonds issued pursuant to the election were sold and the proceeds were deposited in several banks in Wake County to the credit of the board of commissioners. The plaintiff takes the position that these deposits were unwarranted and unlawful because not authorized by section 3655 or any other statute. More particularly, she contends that the Legislature has provided two separate and unrelated systems for the construction and improvement of roads and highways, one applicable to counties (C. S., 3634 et seq.), the other, to the State (3 C. S., 3846(a) et seq.); that the fund in question is to be used for the construction and improvement of the State highway system; that counties have nothing to do with the highways of the State; the county commissioners having authority over public roads under their jurisdiction but no control over the construction of the State highways and no responsibility for their maintenance. 3 C. S., 3846(a), 3846(j), (a), (g), 3846(aa), 3846(cc).

On the contrary, the defendants say that the only theory upon which the plaintiff’s argument apparently may be based is that the election authorizing the bonds was not held in compliance with section 3634 et seq.; that, in fact, the election was held pursuant to these statutes; that the county for the purpose of expediting the improvement of certain highways and of benefiting the county system agreed to lend to the State Highway Commission such sum as, added to funds available for road construction, should be sufficient to complete the proposed work; and that this procedure has received judicial approval.

It may be well to note that the following recitals appear in the judgment: The fund in controversy was derived from the sale of certain bonds issued by virtue of and under authority of an election held under section 3634 et seq.; the election was regularly and duly held; according to the provisions of section 3655 the commissioners designated cer*458tain solvent banks as depositories of tbis fund, and tbat tbe purpose of tbe bond issue was to advance money under a contract witb tbe highway commission for tbe construction and improvement of parts of tbe highway system in Wake County.

In R. R. v. McArtan, 185 N. C., 201, it is said tbat a county primarily is required to construct and keep up its roads and bridges and tbat as tbe commissioners are authorized by 3 C. S., 3846 (ee) to contract witb tbe highway commission in reference to tbe construction of roads, it is their duty, so far as they are legally empowered, to provide tbe funds necessary for such purpose. In a later case tbe Court said tbat although special legislation may disclose a purpose to supervise and control tbe matter of roads by other boards, county commissioners, unless clearly forbidden by such legislation, may lend proper aid by appropriating general county moneys for tbis purpose. Lassiter v. Comrs., 188 N. C., 379. And again: “Where there is no legislation providing otherwise, tbe boards of county commissioners are charged witb responsibility for tbe construction and maintenance of tbe public roads in their respective counties; . . . tbat these governmental agencies, tbe boards of county commissioners and tbe State Highway Commission, are vested witb power to enter into contracts for tbe construction of roads forming a part of tbe State highway system and tbe purpose of tbe act of 1921, cb. 2, is to encourage cooperation between tbe highway commission and tbe county authorities.” Young v. Highway Commission, 190 N. C., 52.

Granted tbat tbe routes for tbe improvement of which tbe bonds were issued are parts of tbe highway system, and tbat tbe two systems are not mutually dependent, tbe contract between tbe board of commissioners and tbe highway commission is not for tbat reason invalid; and as it was adjudged tbat tbe bonds were issued by virtue of an election held under section 3634 et seq., it would seem that tbe funds pending final disbursement should be deposited as provided in section 3655 —these two sections being a part of chapter 70, Art. 4, of Consolidated Statutes and relating to tbe same subject. At any rate, in tbe absence of direct authority to tbe contrary, we are of opinion that tbe plaintiff is not entitled to tbe relief demanded. Mandamus will issue only when tbe enforcement of a clear legal right is sought; it will not issue to enforce an alleged right which is doubtful. Bernardin v. Duell, 172 U. S., 576, 43 L. Ed., 559; Umstead v. Board of Elections, ante, 139; Person v. Doughton, 186 N. C., 723; Person v. Watts, 184 N. C., 499.

Tbe judgment is

Affirmed.