Lilly v. Taylor

• Decision Date: 28 February 1883
• Citation: 88 N.C. 489
• Court: North Carolina Supreme Court
• Parties: E. J. LILLY and others v. B. R. TAYLOR and others.

88 N.C. 489

E. J. LILLY and others

v.B. R. TAYLOR and others.

Supreme Court of North Carolina.

February Term, 1883.

MOTIN to dissolve an injunction heard at Fall Term, 1882, of CUMBERLAND Superior Court, before Gilmer, J.

The court ordered that the injunction theretofore granted by Judge Shipp, be continued to the hearing, and the defendants appealed.

Mr. George M. Rose, for plaintiffs .

Mr. R. P. Buxton, for defendants .

SMITH, C. J.

Pursuant to several writs of mandamus issued from the superior court, at the instance of creditors who had recovered judgment on their several debts against the mayor and commissioners of the town of Fayetteville, who are defendants in this action, they levied certain taxes to pay the same and to meet the local expenses of the town government, and on September 29th, 1881, delivered the tax-lists containing the said levies to the defendant, Taylor, town constable and tax-collector, for collection. He was proceeding to make the moneys due thereunder until interrupted by the restraining order obtained by the plaintiffs, who are resident tax-payers in said town, charged as such in said list, and upon which the property of some of them has been seized by the collector. The mayor and commissioners resigned their respective offices previous to October 4th, 1881, to take effect on that day.

By an act passed at the session of the general assembly (Private Acts 1881, ch. 58), it is provided that in case the municipal authorities are unable to effect a compromise of the corporate indebtedness by reducing it one-half on or before September 1st, 1881, an election should be held on the first Monday of the ensuing month to take the sense of the qualified electors in the town upon the question of a surrender of the charter, and if the response should be in the affirmative, a section (number 6), in the act and in these words should take effect: “All laws and parts of laws incorporating the town of Fayetteville and granting corporate powers to said town, are repealed.”

The concluding clause in section 1 declares that the “town authorities shall pay the floating debt of said town, in full, before the provisions of this act allowing an abrogation of the charter shall be of force.”

No compromise or reduction of the public debt being made, as authorized under the act, in consequence of the refusal of the creditors to accept the proffered terms, an election was held and the popular will ascertained to be in favor of the surrender of the charter and the extinction of the town as a municipal corporation, and the result was so declared and published by the sheriff of Cumberland, under whose direction the election was required to be held.

Upon the presentation of these undisputed facts, and others contained in the verified complaint of the plaintiffs, offered as an affidavit, His Honor granted a rule upon the defendants to show cause at Wadesboro, on a day fixed, why an injunction should not issue, as asked by the plaintiffs, against further proceedings in enforcement of the taxes levied, and in the meantime ordered the defendants to desist from making sale or interfering with the property levied on.

The defendants filed their answers, setting out the several writs of mandamus, in obedience to which the tax levies and lists were made out, and to meet also the necessities of local municipal administration, explaining some and denying other allegations in the complaint, and controverting the alleged effect of the repealing vote because of the non-payment of the floating debt, but not the facts which, in substance, we have extracted from the complaint. It is not deemed necessary to refer to the statements in the answers more in detail.

Several other plaintiffs have been associated, on their application, with those who commenced the action and have similar interests, and three of those who are prosecuting these writs of mandamus have been admitted as co-defendants and adopt the answer of the defendant, Taylor.

After several postponements and upon the hearing of the plaintiffs' application and the answer to the rule, at fall term, 1882, of Cumberland superior court, the presiding judge continued the restraining order until the final hearing of the cause, and from this judgment the defendants appeal.

On the 8th day of March, 1883, during the week assigned for the hearing of appeals from the fourth judicial district, and after the first call of this cause, an act was passed, and went into operation, entitled “An act for the relief of the former town of Fayetteville, and for other purposes,” the preamble whereof is in these words:

“Whereas, by virtue of chapter fifty-eight of the private laws of the general assembly of North Carolina, at the session of 1881, ratified March 12th, 1881, the charter of the town of Fayetteville, in Cumberland county, has been repealed and abrogated, leaving the creditors of said town...