French v. The Bd. of Comm'rs of New Hanover Cnty.

• Decision Date: 31 January 1876
• Citation: 74 N.C. 692
• Parties: WM. A. FRENCH and JOHN MCRAE, in behalf of themselves and others v. THE BOARD OF COMMISSIONERS OF NEW HANOVER COUNTY.
• Court: North Carolina Supreme Court

74 N.C. 692

WM. A. FRENCH and JOHN MCRAE, in behalf of themselves and others

v.THE BOARD OF COMMISSIONERS OF NEW HANOVER COUNTY.

Supreme Court of North Carolina.

January Term, 1876.

Taxation, for State and county purposes combined, for the current and necessary expenses of the county government and new debts, cannot exceed the Constitutional limitation.

There is no limitation however of the power of taxation, upon either State or county, for the payment of their lawful debts, created before the adoption of the Constitution.

This was an application for an INJUNCTION, to restrain the collection of certain taxes, heard by his Honor, Judge McKoy, at the Fall Term, 1875, of the Superior Court of NEW HANOVER county.

The following are substantially all the facts, as disclosed by the record sent to this court upon the appeal, which are necessary to an understanding of the points decided.

The plaintiffs, for themselves and on behalf of the other tax-payers in New Hanover county, allege, that the value of the taxable property in said county is about six million, one hundred and seventy-seven thousand dollars; that the aggregate of State tax upon all property liable to taxation, is thirty-eight (38) cents on the one hundred dollars value; and that the amount of the debt, owing by the county, contracted prior to the adoption of the Constitution of 1868, is thirty-five (35) thousand dollars, being evidenced by seventy bonds of five hundred (500) each, issued on the 1st day of March, 1869, payable ten years after date, and bearing interest at the rate of six per cent., payable semi-annually.

The plaintiffs further say, that the county owes a large floating debt, contracted since the adoption of the Constitution; and they charge, that the alleged excess of taxation is not for the purpose of defraying the necessary current expenses of the county, but for the purpose of paying debts contracted long anterior to the year 1875, and since the adoption of the present Constitution.

That in the month of _______, 1875, the Board of Commissioners levied a tax upon the taxable property of the county, of seventy-two (72) cents on the one hundred dollars value, which, in their levy, they say is to be appropriated as follows: For general county fund, thirty five (35) cents on the one hundred dollars in value, and for the payment of the debts and interest, thirty-seven (37) cents.

That for the payment of the interest on the debt of thirty-five thousand (35,000) dollars, contracted before the adoption of the present Constitution, (the principal due March, 1879,) a levy of four and one-third (4 1/3) cents, on the one hundred dollars in value, would produce a sum sufficient to pay said interest and cost of collection.

That by the Constitution, Art. v, sec. 1, the State and county taxes combined, shall never exceed two dollars on every three hundred (300) dollars of taxable property. That the levy of seventy (70) cents on the one hundred dollars in value, is in excess of the constitutional limitation; the State having levied a tax of thirty-eight (38) cents on the one hundred dollars in value, there would remain but twenty-eight and two-thirds (28 2-3) cents, to be applied for all county purposes, except the payment of the debt contracted before the adoption of the Constitution, which has hereinbefore shown to be thirty five thousand (35,000) dollars, the interest of which becomes due semi-annually; and that a levy of four and one-third (4 1/3) cents on the one hundred dollars in value of the taxable property of the county, will pay the same. That said excess of taxation, so levied by the Board of Commissioners, amounts to seventy-four thousand and ninety (74,090 dollars.

That the Board of Commissioners has placed this tax list, containing this excess of thirty-nine (39) cents on the one hundred dollars in value of the taxable property of the county, in the hands of the tax collector, who is about to proceed to collect the same: wherefore the plaintiffs pray, &c.

In answer to the complaint, the defendant denies that the value of the taxable property in the county of New Hanover, is as much as put down by plaintiffs, stating, that owing to frequent red?? in the valuation of property, since the tax list was m?? out, that the value thereof will not exceed six millions of dollars.

The defendant alleges, that the debt of the county contracted previous to the adoption of the constitution, is as follows: Thirty-five thousand (35,000) dollars, evidenced by seventy bonds, due 1st January, 1879, with interest payable semi-annually in gold, and which will amount to about twenty-five hundred (2500) dollars in currency; and the further sum of about fourteen thousand (14,000) dollars due and owing by said county, and incurred, as the Board has been informed, for the payment of divers debts and liabilities, contracted before the adoption of the constitution of 1868.

In regard to the “floating debt,” alleged by the plaintiffs to have been contracted since the adoption of the Constitution, and the levies made by the Commissioners in excess of the constitutional limitation, and the appropriation of the aggregate so levied, to specific purposes, the defendant denies the allegations as set out in the complaint, and in explanation thereof, states:-- That at a meeting of the Board on the 7th July, 1875, the following order was voted, to-wit:

“Whereas, it is necessary to levy sufficient taxes to meet the current expenses of the county of New Hanover, and to pay the debts created by the county authorities and the interest on the said debt--all created for the necessary expenses of said connty: and whereas, the valuation of real property in the township of Wilmington, has been reduced to the amount of seven hundred thousand (700,000) dollars, through the general reduction of values; it becomes necessary for the Board to levy the following taxes for the year 1875, viz: For current expenses, on the one hundred dollars of value of real and personal property, thirty-five (35) cents; for the payment of county debts and interest on the same, created for necessary purposes and old debts, on the one hundred dollars value of real and personal property, thirty-seven (37) cents. And at a meeting of the Board, held _____ day ?? October, 1875, the following order was passed, to wit: The foregoing order was amended by striking out the words “thirty-...