Atlantic Coast Line R. Co. v. Brunswick County

• Decision Date: 15 October 1919
• Docket Number: 285.
• Citation: Atlantic Coast Line R. Co. v. Brunswick County, 100 S.E. 428, 178 N.C. 254 (N.C. 1919)
• Parties: ATLANTIC COAST LINE R. CO. v. BRUNSWICK COUNTY.
• Court: North Carolina Supreme Court

100 S.E. 428

178 N.C. 254

ATLANTIC COAST LINE R. CO. v. BRUNSWICK COUNTY.

No. 285.

Supreme Court of North Carolina

October 15, 1919

Appeal from Superior Court, Brunswick County; Calver, Judge.

Action by the Atlantic Coast Line Railroad Company against Brunswick County. From a judgment overruling the defendant's demurrer, it appeals. Affirmed.

Civil action under section 2855, Revisal, to recover an amount of taxes agreed to have been unlawfully and wrongfully collected from plaintiff, heard on demurrer to complaint. There was judgment overruling demurrer, and defendant excepted and appealed.

C. Ed Taylor, of Southport, for appellant.

Rountree & Davis, of Wilmington, and Cranmer & Davis, of Southport for appellee.

HOKE J.

The statute under which the present action is instituted (Revisal, § 2855), on matter relevant to this inquiry provides as follows:

"Whenever any person shall claim to have a valid defense to the enforcement of a tax or assessment charged or assessed upon his property or poll, such person shall pay such tax or assessment to the sheriff; but if, at the time of such payment, he shall notify the sheriff in writing that he pays the same under protest, such payment shall be without prejudice to any defenses or rights he may have in the premises, and he may, at any time within thirty days after such payment, demand the same in writing from the treasurer of the state or of the county, city or town, for the benefit or under the authority or by request of which the same was levied; and if the same shall not be refunded within ninety days thereafter, may sue such county, city or town for the amount so demanded, including in his action against the county both state and county tax; and if upon the trial it shall be determined that such tax or any part thereof was levied or assessed for an illegal or unauthorized purpose, or was for any reason invalid or excessive, judgment shall be rendered therefore, with interest, and the same shall be collected as in other cases."

In the present instance the complaint alleges that for the year 1914 there was collected from plaintiff company illegal taxes to the amount of $824.67, setting forth with fullness and detail the facts showing the illegality complained of and the amount as stated. It also states that at the time of payment the company, through its duly authorized officers, filed a written protest with the sheriff of the county, and within 30 days made formal demand in writing on the county treasurer, containing notice that, if the tax so wrongfully collected was not refunded in 90 days, action would be brought under Revisal, § 2855, etc.

Defendant's demurrer is on the ground that no previous demand had been made of the proper municipal authorities that the claim be audited and examined as required by section 1384, Revisal, nor to the chairman of the board of county commissioners as contemplated and directed by section 396.

The complaint having averred full compliance with...