Garysburg Mfg. Co. v. Board of Com'rs of Pender County

• Decision Date: 20 March 1929
• Docket Number: 284.
• Citation: 147 S.E. 284,196 N.C. 744
• Parties: GARYSBURG MFG. CO. v. BOARD OF COM'RS OF PENDER COUNTY.
• Court: North Carolina Supreme Court

147 S.E. 284

196 N.C. 744

GARYSBURG MFG. CO. v. BOARD OF COM'RS OF PENDER COUNTY.

No. 284.

Supreme Court of North Carolina

March 20, 1929

Appeal from Superior Court, Pender County; N. A. Sinclair, Judge.

Action by the Garysburg Manufacturing Company against the Board of Commissioners of County of Pender.From a judgment for plaintiff, defendant appeals.Reversed.

It was agreed that a jury trial be waived and that the court below find the facts and enter the judgment thereon, out of term and out of the county of Pender.

The plaintiff, the Garysburg Manufacturing Company, is a corporation organized under the laws of the state of North Carolina, with its principal place of business at Burgaw, in the county of Pender, at which place it was conducting a lumber manufacturing establishment.Having practically sawed up all of its timber holdings in North Carolina, it organized a South Carolina corporation, called the Argent Lumber Company, with its principal office and place of business in the town of Hardeeville, S. C., in the county of Jasper, in that state.

The Argent Lumber Company was organized and is owned by the same stockholders as the Garysburg Manufacturing Company-- $225,000 of the assets of the North Carolina company were invested in the capital stock of the South Carolina corporation.The South Carolina corporation is located where it had timber holdings, mill, etc.

The plaintiff, Garysburg Manufacturing Company, was such a corporation as was required by section 12, Machinery Act of 1925, Public Laws, c. 102, to make reports to the state board of assessment, in order that that body might estimate and fix the value of the property belonging to such corporation, in accordance with the provisions of that section.It did make such report, and, after considering the report, the state board of assessment, acting under section 15 of the Machinery Act of 1925, certified to the register of deeds of Pender county, the corporation excess of the plaintiff, the Garysburg Manufacturing Company, for local taxation at $210,243.In doing so the state board of assessment estimated the value of the stock owned by the plaintiff in the Argent Lumber Company, and included such value in the total amount of the value of the capital stock of the plaintiff from which deductions were made in accordance with the requirements of said section 12, and certified the result as hereinbefore stated to the register of deeds.The plaintiff, Garysburg Manufacturing Company, failed or refused to pursue the remedy for the correction of such assessment, if illegal or erroneous, provided specifically in said section 12.Instead it voluntarily permitted such assessment to stand, and contented itself with paying the taxes under protest to the county of Pender, and brought proceedings to recover it back under C. S. § 7979.

The amount of said taxation, found by the court below, to have been illegally collected, was $5,676.56, together with a penalty for delayed payment at 1 1/2 per cent. (seesection 78 of the Revenue Act of 1925), amounting to $84.14, making a total amount of $5,760.70, with interest on the amount from the date of payment, April 30, 1927.From this judgment the defendant, the county of Pender, appealed to the Supreme Court.

C. E McCullen, of Burgaw, for appellantBoard of Com'rs of Pender County.

F. S Spruill, of Rocky Mount, and Rountree & Carr, of Wilmington, for appellee.

Brummitt, Atty. Gen., and Nash, Asst. Atty. Gen., as amicus curiæ.

CLARKSON J.

Was the plaintiff mistaken in its remedy in proceeding under C. S. § 7979, instead of under the method provided in chapter 102, § 12, Public Laws of North Carolina, 1925?We think so.

We think the law applicable to this controversy, section 12, c. 102, Public Laws of 1925, pp. 215, 216, in part, is as follows: "Provided, that if the State Board of Assessment or either of them is not satisfied with the appraisement and valuation so made and returned, they are hereby authorized and empowered to make a valuation thereof, based upon the facts contained in the report herein required or upon any information within their possession, and to settle an account on the valuation so made by them for taxes, penalties, and interest due the State thereon, of which such settlement immediate notice shall be given to such corporation by said State Board of Assessment, with the right to the company dissatisfied with any settlement so made against it to appeal to the Superior Court in term-time of the county in which such company has its principal place of business in this State, and thence to the Supreme Court of this State; but before such company shall be allowed to exercise the right of appeal it shall, within twenty days after notice of such settlement, file with the State Board of Assessment exceptions to the particulars to which it objects, and the grounds thereof, and said State Board of Assessment shall hear said exceptions, after ten days notice of such hearing given by said State Board of Assessment to said company; and if they shall overrule any of said exceptions, then such company, if it desires to appeal to said Superior Court, shall within ten days thereafter give notice to said State Board of Assessment of such appeal to said Superior Court, and the State Board of Assessment shall thereupon transmit to said Superior Court a record of said settlement, with the exceptions of the company thereto, and all decisions thereon, and all papers and evidence considered in making said decision.The said cause shall be placed on the civil docket of said Superior Court, and shall have precedence of all civil actions, and shall be tried under the same rules and regulations as are prescribed for the trial of other civil causes.The cause shall be entitled, 'State of North Carolina on the relation of State Board of Assessment against such Company,' Either party may appeal to the Supreme Court from the judgment of the Superior Court under the same rules and regulations as are prescribed by law for other appeals, except that the State of North Carolina, if it shall appeal shall not be required to give an undertaking or make any deposit to secure the cost of such appeal," etc.

In compliance with this provision and the Revenue Act(chapter 101, § 89, Revenue Act 1925), and chapter 102, § 12, Act 1925(machinery provisions), the Garysburg Manufacturing Company, as of May 1, 1926, made its report.It gave a detailed statement, as required by the act.In the report we find:

(29) Actual value in cash of capital stock as of May 1926 (cash value, not book value) .......................................	$350,000
(33) Assessed value of real property

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