Green v. City of Asheville

• Decision Date: 01 October 1930
• Docket Number: 594.
• Citation: Green v. City of Asheville, 199 N.C. 516, 154 S.E. 852 (N.C. 1930)
• Parties: GREEN v. CITY OF ASHEVILLE.
• Court: North Carolina Supreme Court

154 S.E. 852

199 N.C. 516

GREEN v. CITY OF ASHEVILLE.

No. 594.

Supreme Court of North Carolina

October 1, 1930

Syllabus by the Court.

City could tax property annexed thereto on June 30th, after situs of taxable property had been fixed for ensuing tax year where charter of town in which property previously was taxable was repealed and taxpayer had not paid tax thereto (Priv. Laws 1929, c. 205, § § 7, 11, 13).

The translation of all municipal powers and properties of the city, the charter of which was repealed, to the city annexing the property, and the assumption by the latter of all outstanding obligations and liabilities of the former in order to conform to the constitutional provision against impairing the obligation of contracts, necessarily carried with it the means and assurances then available for the enforcement of outstanding engagements of the town, the charter of which was repealed.

Debts due from municipality are not extinguished by repeal of its charter, but still exist, notwithstanding such repeal.

"Obligation of contract" includes all means which at time of making of contract law affords for its enforcement.

Prohibition against impairment of obligation of contracts is absolute and amount and extent of such impairment is not material.

There is presumption against interpretation that will render statute invalid.

Appeal from Superior Court, Buncombe County; Oglesby, Judge.

Controversy without action between Ronald Green, plaintiff, and the City of Asheville, defendant, submitted on an agreed statement of facts.Judgment for defendant and plaintiff appeals.

Affirmed.

Controversy without action submitted on an agreed statement of facts which, so far as essential to a proper understanding of the legal questions involved, may be abridged and stated as follows:

1.Chapter 205, Private Laws 1929, provided that, subject to an election to be held on April 30, 1929, which was held and carried, the boundaries of the city of Asheville were to be extended so as to take in additional territory, some incorporated and some not.

2.By the terms of said act, the date of extension was deferred until June 30 following.

3.Prior to and at all times during the year 1929, the plaintiff owned real and personal property located in the town of Kenilworth, a municipal corporation duly created by act of Assembly, the entire territory of which was included within the new boundaries of the city of Asheville as set forth in the said Extension Act.

4.Section 7 of said Extension Act is, in part, as follows "That if the corporate limits of the City of Asheville are extended as herein provided, the City of Asheville shall assume all the valid and subsisting outstanding bonded indebtedness and other liabilities incurred for necessary expenses of the incorporated towns of Kenilworth, Biltmore, South Biltmore, and the City of Asheville shall succeed to all the assets, revenues, taxes, assessments, real and personal properties of said municipal corporations.This act shall operate as a repeal of the charters of any municipal corporation, other than the City of Asheville, the entire territory of which has been embraced within the extended limits of the City of Asheville by virtue of this act."

5.Section 11 provides: "That if the corporate limits of the City of Asheville shall be extended by said election as herein provided, it shall be the duty of the governing bodies of the municipal corporations included in the corporate limits of the City of Asheville as extended, to turn over to the City of Asheville all official books, deeds, records, moneys and other assets, including all of its real and personal property, and the same shall thenceforth become the property of the City of Asheville."

6.On June 30, 1929, the town of Kenilworth had an outstanding valid and subsisting bonded indebtedness of $388,700; notes outstanding in the sum of $28,250, as well as other liabilities, all incurred for necessary municipal expenses.

7.During the month of May, 1929, plaintiff duly listed and returned for taxation his said property then and there situated in the town of Kenilworth and then and there subject to taxation by the town of Kenilworth, and said tax return was filed with the duly constituted authorities of Buncombe county, N. C., in the manner provided by law, and thereafter and by reason thereof plaintiff became indebted to the town of Kenilworth for and during the tax year 1929 as a property owner and taxpayer residing within said town in such amount and to such extent as the properly constituted authorities of said town might duly determine by an assessment upon said plaintiff's property thereafter to be made in the manner provided by law.

8.As soon as available, all tax lists of Buncombe county, which relate to property and polls within the city of Asheville, are furnished to the city at its own tax lists.

9.On October 8, 1929, the board of commissioners of the city of Asheville duly passed a tax ordinance, levying an ad valorem tax of $1.62 on each $100 valuation of property, and indorsed the tax lists, prepared in conformity with said ordinance, so as to affect all taxable property within the city, including that annexed under the Extension Act aforesaid.

10.The rate of ad valorem tax levied by the town of Kenilworth prior to its inclusion within the boundaries of the city of Asheville was $1.50 on each $100 valuation of property.

The plaintiff contends that, as his property was not within the corporate limits of the city of Asheville on May 1, 1929 when the situs of taxable property was fixed by law for the ensuing year, and did not come within such limits until June 30 thereafter, the city was without power on October 8, 1929, to levy a valid ad valorem tax on his property prior to the tax year 1930.

The defendant, on the other hand, contends that the tax in question is in all respects legal and valid.

From a judgment upholding the tax, the plaintiff appeals, assigning error.

J. Scroop Styles, of Asheville, for appellant.

George Pennell, Chas. N. Malone, and Chas. Earl Jones, all of Asheville, for appellee.

STACY C.J.

The plaintiff rests his case entirely upon the decision in...