The opinion
WiNBORNE, J.
It is well settled in this State that
"Mandamus
lies only to compel a party to do that which it is his duty to do without it. It confers no new authority. The party seeking the writ must have a clear legal right to demand it, and the parties to be coerced must be
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under legal obligation to perform the act sought to be enforced.”
Person v. Doughton,
186 N. C., 723 , 120 S. E., 481 ;
White v. Comrs. of Johnston County,
217 N. C., 329 , 7 S. E. (2d), 825 , and cases there cited.
' Applying these principles to the facts alleged in the complaint and found by the court, we are of opinion that plaintiff fails to show clear legal right to
mandamus.
In the first place, it is not alleged and found as a fact that a judgment has been rendered on the award of the North Carolina Industrial Commission.
The rights and remedies granted under the North Carolina Workmen’s Compensation Act to an employee where he and his employer, respectively, have accepted the provisions of the act to pay and accept compensation on account of personal injury or death by accident are exclusive, and exclude all other remedies. P. L. 1929, ch. 120, sec. 11.
Bright v. Motor Lines,
212 N. C., 384 , 193 S. E., 391 ;
Tscheiller v. Weaving Co.,
214 N. C., 449 , 199 S. E., 623 .
And while under the Act an award of the Industrial Commission, if not reviewed in due time, see. 58, or upon such review, sec. 59, is conclusive and binding as to all questions of fact, sec. 60, the procedure prescribed for the enforcement of the award, set forth in sec. 61, in so far as pertinent to case in hand, is that any party in interest may file in Superior Court of the county in which the injury occurred a certified copy of an award of the Commission unappealed from, whereupon said court shall render judgment in accordance therewith and notify the parties. It is further provided that such judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same as though judgment had been rendered in a suit duly heard and determined by said court. This is the only method prescribed for the enforcement of an award of the Industrial Commission.
Whether the rendition of such judgment by the Superior Court be mandatory, as appears to be the rule in the Commonwealth of Virginia,
Richmond Cedar Works v. Harper,
129 Va., 481 , 106 S. E., 516 , and
Parrigen v. Long,
145 Va., 637 , 134 S. E., 562 , or a judicial act, as the rule appears to be in the State of Illinois,
Fico v. Industrial Commission,
353 Ill., 74 , 186 N. E., 605 , and in the Commonwealth of Massachusetts,
In re Employers Liability Assurance Corporation,
215 Mass., 497 , 102 N. E., 697 , an award is not enforceable by execution or other process until judgment is entered thereon as provided and in the court designated in the Act. 71 C. J., 1425, Workmen’s Compensation Act, sec. 1378. See, also,
Oren v. Swift & Co.,
330 Mo., 869 , 51 S. W. (2d), 59 .
Mandamus
as sought in this action may be considered the equivalent of execution,
Bear v. Comrs.,
124 N. C., 204 , 32 S. E., 558 ;
Withers v. Comrs.,
163 N. C., 341 , 79 S. E., 615 ;
Casualty Co. v. Comrs. of Saluda,
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214 N. C., 235 , 199 S. E., 7 ;
Dry v. Drainage Comrs.,
218 N. C., 356 , 11 S. E. (2d), 143 , and thei’e must be a judgment upon which, to predicate it.
In the second place the complaint negatives the existence of available funds with which to pay the award of compensation.
The failure to allege and prove that there are available funds to pay plaintiff’s claim goes to the very root of this proceeding. Hence, if there are no funds available with which to pay plaintiff’s award, a writ of
mandamus
would not issue to require the Board of Health to do an impossible act. See
Woodcock v. Board of Education
(Utah), 187 Pac., 181 , 10 A. L. R., 181, wherein the Supreme Court of Utah, speaking to an analogous factual situation, expresses the principle in this manner: “While it is true that a public officer or board may by
mandamus
be coerced to pay a particular claim, yet it is also true that, in order to obtain a peremptory writ of mandate to require an officer or board to pay public funds, it must be alleged, and, if denied, proved, that such officer or board has funds with which to pay that particular claim. To that effect are all the authorities,” citing cases.
The general rule is that county boards of health and other administrative agencies, being creatures of statute, have only such powers as are conferred upon them by statute, either expressly or by necessary implication. 25 Am. Jur., 289 -293, in Health, secs. 5-11.
In this State the creation of county boards of health is authorized, and their powers and duties are defined and set forth by statute, secs. 7064 to 7075, as amended, parts of ch. 118 of the Consolidated Statutes of North Carolina which pertains to the administration of public health laws of the State. It is provided in C. S., 7065, that the county board of health shall have immediate care and responsibility of the health interest of the county, and make such rules and regulations, pay such bills and salary and impose such penalties as in their judgment may be necessary to protect and advance the public health, but that all expenditures, before being paid, shall be approved by the Board of County Commissioners.
Halford v. Senter et al.,
169 N. C., 546 , 86 S. E., 525 . No power to tax is given. Nevertheless, the statute indicates that a county board of health is a subordinate governmental agency (referred to by
Hoke, J.,
in case of
Board of Health v. Comrs.,
173 N. C., 250 , 91 S. E., 1019 , as a public guasi-corporation), which of necessity must derive funds either from the State or county, or both, with which to pay salaries or other expenditures required in carrying on the health program of the State.
Thus, while holding, as we do, that the required allegations in respect to available funds are lacking, it must be understood that we are not holding that a county board of health may not be required to put in
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motion sucb legal machinery as it may have for obtaining, and to obtain from authorized sources funds with which to pay an award of compensation to its employee injured by accident arising out of and in the course of his employment.
Cf. Woodcock v. Board of Education, supra.
In this connection, while the question is not now presented, what is “employment,’ “employer,” or “employee” within the meaning of the North Carolina Workmen’s Compensation Act, P. L. 1929, ch. 120, sec. 2 (a) (b) and (c), may be of concern in determining future procedure.
For the reasons stated the judgment below is
Reversed.