Clifton v. Wynne

• Decision Date: 31 January 1879
• Citation: 80 N.C. 145
• Court: North Carolina Supreme Court
• Parties: B. P. CLIFTON, County Treasurer, v. JAMES C. WYNNE and others.

80 N.C. 145

B. P. CLIFTON, County Treasurer,

v.JAMES C. WYNNE and others.

Supreme Court of North Carolina.

January Term, 1879.

CIVIL ACTION upon a Sheriff's Bond, tried at Fall Term, 1878, of FRANKLIN Superior Court, before Kerr, J.

The exceptions constituting the basis of the decision of this court are embodied in its opinion. Both parties appealed from the judgment of the court below.

Messrs. C. M. Cooke and A. W. Tourgee, for plaintiff .

Messrs. Reade, Busbee & Busbee and A. M. Lewis, for defendants .

SMITH, C. J.

While numerous exceptions are shown in the record to have been taken by both parties during the progress of the cause, all such as have been contested in the argument before us are contained in three propositions of the defendants' counsel:

1. The taxes levied for state and county purposes were eighty-eight cents on property of the value of one hundred dollars, and two dollars and sixty-four cents on the poll; preserving the equation, but in excess of the constitutional limit by twenty-one and one-third cents in the first, and sixty-four cents in the latter; and by reason thereof the entire assessment is illegal and void, at least as to the county levy, and the defendant's official bond is not liable therefor.

2. The school tax should be sued for on the relation of the board of education of Franklin and cannot be claimed in this action.

3. The county tax being divided in the list, the one-half part unaccounted for, which is blended with the state tax, in the column appropriated to the latter, cannot be recovered by the relator, of the sureties to the bond.

The court ruled against the last two propositions and in favor of the first, and gave judgment against all the defendants for the sum of $1,505.37 collected under schedule B of the revenue act, and against the defendant Wynne alone for the sum of $7,655.42, the residue of the county taxes collected and not paid over. From the judgment both parties appeal to this court.

There is error in the ruling of the court that the official bond is not liable for the whole amount due.

1. The tax list made out by the board of county commissioners is not upon its face illegal and void, because the assessment is in excess of the limits prescribed in the constitution. The restraint there imposed upon the taxing power applies to taxes levied to meet the ordinary expenses of county government, but does not extend to such as may be necessary for the payment of obligations incurred before its adoption. In such case the equation of the property and poll tax may be disregarded, and the limits exceeded. This is expressly decided in Haughton v. Com'rs of Jones, 70 N. C., 466; Street v. Com'rs of Craven, Ibid., 644; Brothers v. Com'rs of Currituck, Ibid., 726; Trull v. Com'rs of Madison, 72 N. C., 388; French v. Com'rs of New Hanover, 74 N. C., 692.

In the first case cited, READE, J., says: “It is true as contended for the plaintiff that as a general rule the county commissioners cannot levy for county purposes a tax more than double the state tax. Const. Art. V., § 7. But that provision was not intended to apply to taxes laid to pay debts existing at the time of the adoption of the constitution, and if it had so intended, it would have been in conflict with the constitution of the United States as impairing the obligation of contracts.”

In Street v. Com'rs of Craven, a tax of a half cent was put upon the poll and two dollars upon the one hundred dollars valuation of property to provide for debts contracted before the year 1868, and the court declared it to be “within the power of the board of commissioners to levy it,” and that their discretion could not be controlled.

If then the commissioners had authority to prepare and deliver such a tax list to the sheriff for collection upon the maxim “ omnia præsumunter rite esse acta,” he may assume the existence of such necessary facts as give the jurisdiction and render process emanating from it regular and proper. State v. McIntosh, 7 Ire., 68. The form of the tax list does not disclose the particular use to which the moneys assessed for county purposes are to be applied, and hence it does not appear that the taxes levied fall within the restrictive clause of the constitution. The process is void only, conferring no power and imposing no duty, when the illegality is patent, or it issues from incompetent authority. The county commissioners are invested with full and exclusive jurisdiction under the restraints of law to levy such county taxes as the public interest may require, and their action in making an assessment and delivering the tax list to the collector, has been assimilated to and substantially is an exercise of judicial power and governed by the same rules. It is so declared in Cody v. Quinn, 6 Ire., 191, and in Gore v. Mastin, 66 N. C., 371. In the last, BOYDEN, J., referring to the tax list, uses this language: “This list thus prepared and furnished the sheriff constituted the authority of the sheriff for the collection of the taxes and was of the same force and effect as an execution issuing from the county court upon a judgment therein rendered in the matter of which the same court had jurisdiction. It was no part of the duty of the sheriff to enquire whether these taxes were properly laid or not.” The principle has been incorporated in the revenue law, and it is declared “the clerk shall endorse on the copies of the tax lists given to the sheriff an order to collect the taxes therein mentioned, and such order shall have the force and effect of a judgment and execution against the property of the person charged in such list.” Acts 1876-'77, ch. 155, § 22, and the form of the order is therein prescribed.

2. The taxes contained in the list being apportioned per capita and upon the ad valorem principle on property and the excess easily severable from the authorized amount, the lawful tax may be collected and the assessment is not wholly void.

This proposition seems so manifest as scarcely to require citation of authority in its support. We will refer to a single case. In Moore v. Alleghany City, 18 Penn., St. Rep., 55, this question came up for consideration, and the court say: “It may be that in a contest between the assessors and tax payer, an illegal tax, so incorporated with a regular assessment as to be undistinguishable, may vitiate the whole. But from the manner in which assessments are usually made and returned on different species of property, this is hardly possible, and it is not to be doubted that if part of assessment be legal and part illegal, the former, if it can be separated, may be enforced irrespective of the latter.” In our case no difficulty whatever is met in discarding the excess and collecting the admitted lawful part of the tax. We should be reluctant to hold that the incorporation of a small ad valorem tax illegal only because of its excess, in a revenue act, should arrest the machinery put in motion for its collection, and obstruct the administration of the government for want of means to carry it on. The consequences of such a doctrine must be its answer and refutation. In Trull v. Commissioners of Madison, 72 N. C., 388, the court restrained the collection of the excess only, it being easily ascertained.

3. The tax, though part of it be illegal and avoidable by the tax payer, when collected under process and by color of office, cannot be...