City of Wilmington v. Bryan
| Decision Date | 28 May 1906 |
| Citation | 54 S.E. 543,141 N.C. 666 |
| Parties | CITY OF WILMINGTON v. BRYAN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; W. R. Allen, Judge.
Action by the city of Wilmington against E. K. Bryan. Judgment for defendant, and plaintiff appeals. Reversed.
Where back taxes were placed in the hands of the city attorney for collection under an ordinance ordering their collection, and that when collected "it shall be the duty of the city attorney to return the books and take a receipt therefor," there was nothing in the resolution carrying a property right or power coupled with an interest, or creating a perpetual and irrevocable contract, either with such city attorney or with one of his subagents.
Empie & Empie, J. D. Bellamy, Wm. J. Bellamy, and Marsden Bellamy for appellant.
Junius Davis, Rountree & Carr, and H. McClammy, for appellee.
This is an action to recover $1,076.52 back taxes collected by the defendant after the revocation by the plaintiff of his authority to collect the same; payment thereof having been demanded by the plaintiff and refused by the defendant. The answer admits the collection of the money, but sets up as a defense that the defendant had a continuing contract with the plaintiff, which was to last till all the back taxes were collected, and sets up a counterclaim for $7,500 commissions on back taxes collected by the city attorney after the defendant's employment was revoked. By chapter 182, p 264, Laws 1895, the city of Wilmington was given authority to collect its arrearages of taxes, and it was made the duty of the city attorney, together with such associate counsel as he might select, to bring such actions against delinquent taxpayers. This act was repealed. Laws 1897, p. 700, c. 517 ratified March 9, 1897. Under the authority of the act of 1895, D. B. Sutton then city attorney, associated the defendant and several other attorneys with himself for the collection of back taxes. By virtue of this association the defendant and others now claim an irrevocable contract with the city, even after the repeal of the statute and after the expiration of the term of Sutton, on whom as city attorney the duty was imposed to make the collection, with the aid of agents to be selected by him. C. P. Lockey succeeded D. B. Sutton as city attorney April 4, 1898, and the board of aldermen turned over to him, as such city attorney, for collection, the back taxes for the years 1894, 1895, 1896, and 1897, and on April 25, 1898, passed the following resolution:
"Resolved, the board of audit and finance concurring, that the city attorney be and he is hereby authorized, empowered, and instructed to collect all taxes due the city for the years 1894, 1895, 1896, and 1897, and to institute all actions in court that may be necessary to enforce the collection of such taxes.
As compensation for making said collection, the city attorney may deduct and retain 10 per cent. of all moneys collected under this resolution.
Resolved, further, that the city attorney be and he is hereby directed and instructed to join and co-operate with the attorneys now in charge of the collection of the back taxes due the city for the years prior to 1894 upon such terms as may be agreed upon by him and said attorneys."
The board of audit and finance, May 11, 1898, amended the said resolutions by changing the second paragraph of the first resolution to read as follows: --and as thus amended, adopted the aforesaid resolutions. The defendant was one of the attorneys referred to in the second resolution and was accordingly associated by the city attorney with himself in making collections of said back taxes. T. W. Strange succeeded Lockey as city attorney, and was himself succeeded in that office in 1899 by Iredell Meares, who, some time after his election, made a demand upon the defendant for the tax books containing the back taxes due the city prior to 1894. The defendant declined to surrender the same, claiming that he and his associates had an irrevocable contract for the collection of those taxes. The board of aldermen then passed a resolution directing the defendant and his associates to deliver to City Attorney Meares the said tax books, authorizing the said city attorney to collect said back taxes; and the board notified the defendant and his associates to proceed no further in the collection of taxes. The defendant again refused to surrender said books, claiming an irrevocable contract to collect the taxes, alleging ability and willingness to collect, and averring that he would hold the city responsible for damages if he were stopped from proceeding further to collect. Afterwards, the said tax books were taken from the office of the defendant by said City Attorney Meares by direction of the city authorities, and said city attorney and his successor in office have since that time been collecting said back taxes and have received the pay therefor. The $1,076.52 demanded in the complaint is for back taxes which it was admitted were collected by him after Meares had become city attorney and had demanded the said tax books and had been refused, and this sum is held by him on the sole claim that the city is due him $7,500 as damages for refusing to permit him to continue the collection of the taxes. It was agreed that if the defendant was entitled to any counterclaim at all for his alleged damages (which are for loss of commissions and the value of services in issuing writs and notices and preparing for further collections), the amount should be fixed at $4,000 from which should be deducted the $1,076.52 due the city, collected as aforesaid after the notice of the termination of his attorneyship, and for the recovery of which this action is brought. So the whole question is simply narrowed down to one of law, whether the city had a right to terminate the authority it had given, under which the defendant was collecting the back taxes, or did the defendant hold a perpetual and irrevocable contract to collect the back taxes?
There was error, as pointed out by the plaintiff's exception 1, in that the judge found on the above facts, as a conclusion of law, that the plaintiff entered into a contract with "E. K. Bryan and his associates." The facts show that the contract, if any, was made by the "board of aldermen with D. B. Sutton, as city attorney," and, as such, the contract terminated with the expiration of his term of office.
The court also erred in overruling the plaintiff's exceptions 2 and 8 to the referee's findings of law, and in holding that the contract was a continuing one, when, upon the facts found, it was the employment of counsel to collect without any duration (unless it was the term of office of the then incumbent as city attorney), and, being without limitation as to time, it was, in law, a contract terminable at the will of either party. Abbott v. Hunt, 129 N.C. 403, 40 S.E 119. The ordinance of July 30, 1895, set out in the referee's report, under which the back taxes prior to 1894 were placed in the hands of Sutton, city attorney, to collect, simply ordered those taxes to be collected, and that, when collected, "it shall be the duty of the city attorney to return the books and take a receipt therefor." There is nothing in that resolution carrying a property right, or power coupled with an interest, or creating a perpetual and irrevocable contract, with the then city attorney, who has long since passed out of office, as principal, and still less with the defendant as one of his subagents. That a principal who appoints an agent, without limitation as to time, may revoke at any time, unless it is a power coupled with an interest, is elementary law. Insurance Co. v. Williams, 91 N.C. 67, 49 Am. Rep. 637; Ballard v. Ins. Co., 119 N.C. 187, 25 S.E. 956. The resolution providing that the city "shall pay 10 per cent. of all taxes collected without suit and 20 per cent. of that collected by suit, does not confer any interest in the taxes, but is merely a method of measuring the compensation to be paid on that collected, so long as the authority to collect is unrevoked." Missouri v. Walker, 125 U.S. 339, 8 S.Ct. 929, 31 L.Ed. 769. If the interest is in that which is produced by the exercise of the power, then it is not a power coupled with an interest. Abbott v. Hunt, 129 N.C. 403, 40 S.E. 119, where the authorities are collected at page 405 of 129 N. C., page 120 of 40 S. E., and which is conclusive of this case. Barr v. Schroeder, 32 Cal. 609. "A mere power to collect money and receive property, the agent to have one-half of the net proceeds as compensation, is not a power coupled with an interest, and is revocable." Bancroft v. Ashhurst, 2 Grant, Cas. (Pa.) 513; Blackstone v. Buttermore, 53 Pa. 266. The relation which the defendant sustains to the city was merely that of agent, and when the statute was repealed he had no contract right which was impaired. Mial v. Ellington, 134 N.C. 131, 46 S.E. 961, 65 L. R. A. 697; Missouri v. Walker, supra; Pennie v. Reis, 132 U.S. 464, 10 S.Ct. 149, 33 L.Ed. 426. Nor could the board of aldermen make a contract for the employment of legal services binding for an unlimited time and irrevocable by their successors. Abbott, Mun. Corp. § 259; Wadsworth v. Concord, 133 N.C. 587, 45 S.E. 948. That would be worse than the inconveniences and...
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