Hart v. Bd. Of Com'rs Of Burke County, (No. 489.)

• Decision Date: 16 September 1926
• Docket Number: (No. 489.)
• Citation: 134 S.E. 403
• Court: North Carolina Supreme Court
• Parties: HART et al. v. BOARD OF COM'RS OF BURKE COUNTY et al.

134 S.E. 403

(192 N.C. 161)

HART et al.

v.BOARD OF COM'RS OF BURKE COUNTY et al.

(No. 489.)

Supreme Court of North Carolina.

Sept. 16, 1926.

Appeal from Superior Court, Burke County; Webb, Judge.

Action by J. H. Hart and others against the Board of Commissioners of Burke County and others, to enjoin and restrain collection of taxes. Restraining order denied, and action dismissed, and plaintiffs appeal. Affirmed.

The facts necessary to the presentation of the merits of the controversy are set out in the judgment, which is as follows:

"The above-entitled action coming on for hearing, and, being heard upon the pleadings and the affidavits offered by plaintiffs and defendants, the court finds as a fact that chapter 545 of the Public Local Laws of North Carolina of 1925, ratified March 9, 1925, was not read on three separate days in each House, and that the yeas and nays on the second and third readings were not entered on the journal; and, being of the opinion upon inspection and consideration of said statute that the same merely provides for a revaluation and assessment of property in Burke county during the year 1925, and that the same, therefore, was not required to be enacted in accordance with the provision of section 14 of article 2 of the Constitution, the court is further of the opinion that the said statute is in all respects legal, valid, and binding, and in no way in conflict with the Constitution.

"The court further finds as a fact that, under the authority given and conferred on them by said statute and in the exercise of the discretion thereby conferred upon them, the defendant, board of commissioners of Burke, entered an order for and caused a revaluation and assessment of all property to be made in Burke county during the year 1925, the same not being completed until the latter part of the summer of 1925, and that after the same had been completed the said defendant, board of commissioners of Burke county, sat as a county board of equalization, and heard complaints of the citizens of Burke county in regard to revaluation and assessment, in some instances reducing them and in other instances increasing the valuation placed on said property by the tax listers and assessors.

"The court further finds as a fact that, the work of the tax lister and assessors not having been fully completed by the second Monday in July, the consideration of all complaints was deferred by the defendant, board of commissioners, until the assessments had been completed, and that on the 22d day of September, 1925, when the defendant, board of commissioners, finally sat as a county board of equalization for the purpose of hearing complaints of the citizens as to the valuations placed upon their property by the tax listers and assessors, and that in addition to verbal notices generally given by said board the following written notices were given of the time when complaints would be heard, the same being published in the News-Herald, a newspaper published in Morganton, Burke county, in the weekly publication or issue of September 10, 1025, the following notice:

" 'Monday, September 21st, for hearing tax complaints. The county commissioners have set aside Monday, September 21st, as the time for hearing tax complaints.'

"And the said newspaper, in its issue of September 16, 1925, contained the following notice:

" 'Tuesday, the 22d, is the day for tax complaints. Attention is called to the fact that Tuesday, September 22, is the date set by the county commissioners for hearing tax complaints. By error, it was given in last week's paper as Monday, the 21st.'

"The court finds as a fact that no notice was given to the plaintiffs of the notice of September 22, 1925, other than the notice published in the paper.

"The court further finds as a fact many of the citizens of the county of Burke appeared before the county board of commissioners on September 22, 1925, sitting as a board of equalization, made complaints as to the valuation of their property which were heard and passed upon by said board, and some appeals taken from their ruling, and that at frequent intervals since that date, complaints have been made to the defendant board by the citizens of said county of the valuation placed upon their property, and that the defendant board is still attempting to obtain evidence and ascertain whether any real property in said county has been valued too high and correct any errors or mistaken valuation placed thereon and remedy and remove such injustice, if any, done any taxpayers of said county.

"The court further finds that, in the revaluation and assessment made by the tax listers and assessors, there is probable cause to believe that mistakes and errors have been made and committed in ascertaining the value of real estate owned by some of the citizens of Burke county, such errors and mistakes being common and unavoidable in all assessments, but the court is of the opinion that the statutes of this state point out and prescribe the remedy and the method which must be pursued in order to correct or cure such errors and mistakes in assessments, and the court is of the opinion that it should not restrain the collection of the taxes in Burke county by reason of such errors and mistakes in the valuation or assessments in individual cases, and that the plaintiffs herein, or any one of said plaintiffs, should pursue the remedy pointed out by the statutes and the decisions of the Supreme Court.

"It is therefore considered, ordered, and adjudged by the court that the restraining order applied for be, and the same is hereby denied, and that this action be, and the same is hereby-dismissed, and that the plaintiffs and the sureties on their prosecution bond pay the cost of this action to be taxed by the clerk of the court."

Avery & Patton, R. L. Huffman, and C. E. Cowan, all of Morganton, for appellants.

Avery & Hairfield, S. J. Ervin, and S. J. Er-vin, Jr., all of Morganton, for appellees.

BROGDEN, J. Chapter 545, Public Local Laws of 1925, authorizes the board of commissioners of Burke county in their discretion "to cause a revaluation and assessment to be made of all of the real estate and personal property in Burke county liable for taxation, in the manner provided in chapter 12, Public Laws 1923, and to levy taxes thereon based upon such revaluation and assessment, * * * as now provided by law."

The controversy between the parties arises from the construction of this act of the Legislature. The plaintiffs contend: (1) That said act is a revenue act, and, therefore, under article 2, § 14, of the Constitution, the act should have been "read three several times in each House of the General Assembly and passed three several readings, which readings shall have been on three different days, and agreed to by each House respectively, and unless the yeas and nays on the second and third readings...