Hughes v. Craven County Com'rs
| Decision Date | 15 December 1890 |
| Citation | 12 S.E. 465,107 N.C. 598 |
| Parties | HUGHES v. COMMISSIONERS OF CRAVEN COUNTY. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Craven county; WOMACK, Judge.
This action was tried on the complaint and demurrer thereto ore tenus, with motion by the defendant to dismiss the action. Motion allowed, and judgment that the action be dismissed and against plaintiff for costs, from which judgment the plaintiff appealed. The plaintiff complains and alleges (1) that at the May term, A. D. 1886, one Joseph Nelson, in an action properly instituted and prosecuted in the superior court of said Craven county, recovered a judgment against the defendant, the board of commissioners of Craven county, for $1,518.54, with interest thereon from the 14th day of May 1886, and the costs of said action, as will more fully appear by reference to the record of said judgment in the said court in judgment docket C, p. 236, No. 3,907, which judgment was obtained on indebtedness of said defendant, contracted since the adoption and ratification of the present constitution of North Carolina; (2) that on the 23d day of November, 1887 the said Joseph Nelson transferred and assigned the said judgment to the National Bank of New Berne, to secure the payment of the indebtedness of said Nelson to said bank, as plaintiff is informed and believes; (3) that thereafter the said Joseph Nelson assigned his interest in said judgment to Pattie S. Nelson, his wife, as plaintiff is informed and believes; (4) that on the ___ day of ___, 1888, the said the National Bank of New Berne, and said Joseph Nelson, and Pattie S. Nelson, his wife, duly bargained and sold and transferred and assigned for value to the plaintiff the said judgment, and the plaintiff is now the solebonafide owner of the said judgment; (5) that the plaintiff has duly notified the said the board of commissioners of Craven county that he is the owner of said judgment; (6) that no part of the said judgment has been paid; (7) that the said defendant, the board of commissioners of Craven county, is largely in debt and has no property other than that required to carry on the public business, except as hereinafter stated, and that it takes all the money that defendant is allowed to collect from taxation to pay the current expenses of carrying on the county government as required by law, as plaintiff is informed and believes; (8) that the Atlantic & North Carolina Railroad Company is a corporation, created by the laws of North Carolina, and is now engaged in carrying on business on its railroad running from Morehead City to Goldsboro, in the said state, as is allowed and required by its charter, to which reference is made; (9) that the said railroad company is composed of a large number of persons who own shares of its capital stock, which said shares of stock are valuable property; (10) that the defendant, the board of commissioners of Craven county, own and hold 1,293 shares of the said capital stock of the said Atlantic & North Carolina Railroad Company, (par value $100 per share,) which said stock is worth a large amount of money, as the plaintiff is informed and believes; (11) that there have never been any dividends declared on said stock by said Atlantic & North Carolina Railroad Company, as plaintiff is informed and believes; (12) that the capital stock of said railroad company owned by the said board of commissioners of Craven county as aforesaid, is in no manner necessary, nor is the same used, nor can be used, nor can be used, for the purpose of carrying on or performing its functions as a municipal corporation, or performing any of its duties as such corporation, as plaintiff is informed and believes. Therefore the plaintiff demands judgment, (1) that a sufficiency of the said capital stock of said Atlantic & North Carolina Railroad Company, so held and owned by the said board of commissioners of Craven county, be condemned and sold to pay the said judgment owned by plaintiff as aforesaid; (2) that a receiver be appointed to take and sell said capital stock, or a sufficiency thereof, to pay off said judgment, and that out of the proceeds of said sale he pay off and discharge said judgment; (3) that the defendant, the Atlantic & North Carolina Railroad Company, be required to transfer on its books to the purchaser or purchasers thereof the stock that may be sold as aforesaid; (4) that the defendant, the board of commissioners of Craven county, be enjoined from disposing of any of its said stock until said judgment is paid, and that plaintiff have a lien on said stock until said judgment is paid, to secure the payment of the same; for such other and further relief as plaintiff may be entitled to, and for costs. The defendant moved for judgment ore tenus on the ground that the complaint did not state facts sufficient to constitute a cause of action. Motion granted. Plaintiff excepted, and appealed.
Counties having no power by general law to subscribe to the stock of a corporation, a judgment creditor of a county cannot sue to subject to the payment of his judgment stock in a railroad company held by the county, without referring in his complaint to the private statute which permitted the county to subscribe for the stock, without which it cannot be known whether the stock is not held on condition such as to require the presence of other parties interested in the proposed relief, or possibly to prevent the court from granting it at all.
M. D. Stevenson, for appellant.
Clement Manly, for appellee.
AVERY J., (after stating the facts as above.)
A municipal corporation exercises governmental duties under the powers delegated to it by the sovereign state, and cannot be destroyed or deprived of capacity to subserve the public purposes for which it was brought into existence, except by its creator. Hence it has been held that the congress of the United States could not pass a law levying a tax on the revenues or income of a town or city within one of the states, because the right to impose such a tax would involve the power to cripple or destroy the corporation, and would be as much a usurpation as levying a tax on the revenues of the state itself. U.S. v. Railroad Co., 17 Wall. 322. But the state, of course, has the authority to prescribe what property a county or town may acquire, to provide specifically how its indebtedness shall be paid, and to subject all or a portion of its property to sale under execution, or in any other mode, at the instance of a creditor. In the absence of special statutory regulations, it has been declared upon principle, says Dillon, that the right to recover judgments, and enforce them by execution, arose by necessary implication out of the privilege of suing and being sued, and that execution, when issued, could be levied upon strictly private property of the corporation, but not upon "property owned or used by the corporation for public purposes, such as public buildings, hospitals, cemeteries, fireengines, and apparatus, and waterworks;" and, further, that judgments should not operate as liens upon any land, or interest in land, belonging to municipal corporations, except such as may be subject to sale under the execution. 2 Dill. Mun. Corp. § 576, (446.) On the other hand, Freeman, in his work on Executions, (volume 1, § 22,) says: The same author, however, (Id. § 126,) says that, where a different rule prevails from that announced by him, "property held for public uses, such as public buildings, streets, squares, parks, promenades, wharfs, landing-places, fireengines, hose and hose carriages, engine-houses, engineering instruments, and generally everything...
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