Beaufort County v. North Carolina State Highway Commission

• Decision Date: 30 March 1932
• Docket Number: 17.
• Citation: 163 S.E. 459,202 N.C. 433
• Parties: BEAUFORT COUNTY et al. v. NORTH CAROLINA STATE HIGHWAY COMMISSION et al.
• Court: North Carolina Supreme Court

163 S.E. 459

202 N.C. 433

BEAUFORT COUNTY et al. v. NORTH CAROLINA STATE HIGHWAY COMMISSION et al.

No. 17.

Supreme Court of North Carolina

March 30, 1932

Appeal from Superior Court, Beaufort County; Sinclair, Judge.

Controversy without action between Beaufort County and others and the North Carolina State Highway Commission and others. Judgment for plaintiffs, and defendants appeal.

Reversed.

County held not entitled to portion of gasoline tax after date fixed in repealing law, regardless of sale or use prior thereto (Pub.Laws 1929, c. 40; Pub.Laws 1931, c. 145).

This is a controversy without action submitted to the Court on a statement of facts agreed. C. S. § 626.

The plaintiffs contend that by virtue of the provisions of chapter 40, Public Laws of North Carolina 1929, each of the counties of this state is entitled to a certain percentage of the sums of money now in the hands of the defendant John P Steadman, treasurer of the state of North Carolina, and subject to vouchers issued by the defendant North Carolina state highway commission, which were collected and paid to said treasurer by the commissioner of revenue of North Carolina, since July 1, 1931, by reason of the tax levied under the laws of this state of one cent per gallon on all motor fuels sold, distributed, and/or used therein, prior to July 1, 1931.

The plaintiffs further contend that, by virtue of the provisions of said chapter 40, Public Laws of North Carolina 1929, it is the duty of the state highway commission to issue and of the state treasurer to pay vouchers for the percentages of said sums of money to which the plaintiff are entitled respectively.

The defendants contend that chapter 40, Public Laws of North Carolina 1929, was repealed by chapter 145, Public Laws of North Carolina 1931, and that, by reason of such repeal, none of its provisions has been in force or effect since July 1 1931.

The defendants therefore contend that plaintiffs are not entitled to any part of the sums of money now in the hands of the state treasurer, subject to vouchers issued by the state highway commission, which were collected and paid to the said treasurer by the commissioner of revenue of North Carolina after July 1, 1931, by reason of the tax on motor fuels which were sold, distributed, and/or used in this state, prior to said date.

It is agreed that the defendant North Carolina state highway commission has issued vouchers to the several counties of the state, including the plaintiffs, for all sums of money to which they were entitled under the provisions of chapter 40 Public Laws of 1929, which were collected and paid to the state treasurer by the commissioner of revenue of North Carolina, prior to July 1, 1931. The only sums of money therefore, which are involved in this controversy, are those which were collected and paid to the state treasurer after July 1, 1931, by reason of the tax on motor fuels levied under the laws of this state.

It is further agreed that, if the plaintiffs are entitled to the percentages of the sums of money involved in this controversy, as contended by them, then such sums as are due to the plaintiffs, respectively, shall be paid by the defendant John P. Steadman, treasurer of the state of North Carolina, on vouchers which shall be issued by the defendant state highway commission to the holders of certain bonds issued by the plaintiffs for road improvements, which are now outstanding.

The cause was heard on the facts agreed. It was adjudged, decreed, and ordered by the court as follows:

"That the plaintiffs counties are entitled to receive the gasoline tax at the rate of one cent (1¢) per gallon on such motor fuels as were sold, distributed and/or used in this State prior to July 1, 1931, and on which said tax was not actually collected and received by the State Treasurer until or after July 1, 1931, and that plaintiffs counties are entitled to have paid on bonds and interest heretofore issued by said counties for road improvements the following percentages of said fund, to-wit:

Beaufort County 1.467% of the total for the State

Ashe County .844% ' ' ' ' ' '

Bertie County 1.190% ' ' ' ' ' '

Chowan County .378% ' ' ' ' ' '

Iredell County 1.345% ' ' ' ' ' '

Martin County .875% ' ' ' ' ' '

Washington County .559% ' ' ' ' ' ' "And it is further ordered, adjudged and decreed that the said percentages of the said fund shall be paid over by the defendants to the holders of the bonds and coupons heretofore issued by the said counties for road improvements."

From this judgment, the defendants appealed to the Supreme Court.

Harry McMullan and MacLean & Rodman, all of Washington, N. C., for Beaufort County.

T. C. Bowie and Ira T. Johnston, both of Jefferson, for Ashe County.

M. B. Gillam, of Windsor, for Bertie County.

W. D. Pruden, of Edenton, for Chowan County.

John A. Scott, of Statesville, for Iredell County.

Elbert S. Peel, of Williamston, for Martin County.

Z. V. Norman and Carl L. Bailey, both of Plymouth, for Washington County.

H. G. Connor, Jr., of Wilson, for Wilson County.

Dennis G. Brummitt, Atty. Gen., for Steadman, State Treasurer.

Charles Ross, Gen. Counsel, of Raleigh, for State Highway Commission.

CONNOR, J.

Chapter 40, Public Laws of North Carolina 1929, is entitled "An Act to amend Chapter 93 of the Public Laws of 1927 so as to levy an additional tax of one cent per gallon on gasoline and relieve the counties by aid from the State Highway Commission." This act became effective as to all its provisions, according to its terms, on April 1, 1929. It continued in full force and effect until its repeal by chapter 145, Public Laws of 1931. By virtue of such repeal, none of its provisions has been in force and effect since July 1, 1931. No tax on motor fuels sold, distributed, and/or used in this state has been levied under its provisions since April 1, 1931. All sums of money collected under its provisions, and allocated to the "County Aid Road Fund," created under the act, have been paid to the several counties of the state. The sums now in controversy were collected and paid to the state treasurer, after July 1, 1931, under the provisions of chapter 145, Public Laws 1931, which became effective on April 1, 1931.

Section 39 of chapter 145, Public Laws of 1931, contains the following provision: "That all laws and clauses of laws in conflict with the provisions of this act to the extent of such conflict, and especially chapter forty of the Public Laws of nineteen hundred and twenty-nine are hereby repealed: Provided, however, that sections three to six inclusive of said chapter forty in the Public Laws of nineteen hundred and twenty-nine shall remain operative until July first, ninteeen hundred and thirty-one."

As all the provisions of chapter 40, Public Laws of 1929, have been repealed, and none of said provisions were operative on or after July 1, 1931, plaintiffs are not entitled to any sums of money now in the hands of the state treasurer, subject to vouchers issued by the state highway commission which have been collected and paid to said treasurer by the commissioner of revenue of North Carolina since July 1, 1931. The judgment is therefore reversed.

CLARKSON J. (dissenting).

Judge Sinclair rendered judgment in the court below as follows "That the plaintiffs Counties are entitled to receive the gasoline tax at the rate of one cent (1¢) per gallon on such motor fuels as were sold, distributed, and/or used in the State prior to July 1, 1931, and on which the said tax was not actually collected and received by the State Treasurer until on or after July 1, 1931, and that the plaintiffs Counties are entitled to have paid on bonds and interest heretofore issued by said Counties for road improvements the following percentages of the said fund, to-wit: (naming same). And it is further Ordered, Adjudged and Decreed that the said percentages of the said fund shall be paid over by the defendants to the holders of the bonds and coupons...