London v. The City of Wilmington

• Decision Date: 31 January 1878
• Citation: 78 N.C. 109
• Court: North Carolina Supreme Court
• Parties: JOHN LONDON and wife v. THE CITY OF WILMINGTON.

78 N.C. 109

JOHN LONDON and wife

v.THE CITY OF WILMINGTON.

Supreme Court of North Carolina.

January Term, 1878.

APPLICATION for an Injunction to restrain the defendant from collecting certain taxes, heard at June Special Term, 1877, of NEW HANOVER Superior Court, before Seymour, J.

The plaintiffs alleged that the defendant, (Board of Aldermen) by virtue of an ordinance passed on the 18th of January, 1875, levied a tax of two per cent. upon all the real estate in the City of Wilmington for the year 1875, and that by Art. VII § 9 of the Constitution, all taxes levied by any Town or City are required to be uniform upon all property in the same, not exempted by the Constitution; that the defendant exempted from taxation for said year, the stocks of goods of all the merchants in said City, which were on hand on the 1st of April, 1875, by means whereof the amount of the assessed value of the personal property was reduced by at least the sum of $700,000, and that said exemption imposed the burden of taxation upon the real estate and personal property (other than the stocks of goods aforesaid) to the amount of the tax properly derivable from said stocks of goods, and that said discrimination in favor of said merchants is in violation of said constitutional provision, and renders the whole tax list void; that the real estate of plaintiffs, valued at $3667, is included in said tax list which has been delivered to the City Tax Collector who has advertised that unless the tax payers of said City shall pay their taxes, he will sell their property for the same; whereby a cloud would be put upon the title of the plaintiffs to the said real estate; and that plaintiffs have commenced a civil action, &c., and therefore demand judgment that the defendant be perpetually enjoined from collecting the tax levied as aforesaid, &c.

The defendant,-after admitting that said merchants were not required to list their stocks of goods in 1875, as alleged in the complaint, and averring that in lieu thereof they were required to pay a monthly license tax, based upon the monthly sales, for carrying on their business, which license tax was uniform and ad valorem,--denied that any extra burden of taxation was thrown on the real estate or personal property as alleged by plaintiffs; but on the contrary averred that the revenue derived from the license taxes was greater than if the stocks of goods on hand on the 1st of April, 1875, had been taxed two per cent. upon the value thereof which was not exceeding the sum of $500,000. The defendant further alleged that the revenue of the City for said year was insufficient to pay the current expenses for the same, and the interest on its bonded debt, and that plaintiffs were included among the list of delinquent taxpayers for said year.

The plaintiffs, replying, alleged upon information and belief that since the year 1868, with the exception of 1875, the merchants in said City have annually listed and paid taxes on stocks of goods as other property was taxed, in addition to the monthly license tax for the privilege of carrying on business; and that said stocks were listed before the Township Trustees for the year 1875, according to their value in money.

Upon the hearing, His Honor gave judgment for the plaintiffs, and the defendant appealed.

Messrs. E. S. Martin and A. T. London, for plaintiffs .

Mr. D. L. Russ??l, for defendant .

RODMAN, J.

Since the cases of Brodnax v, Groom, 64 N. C. 244, and Galloway v. Jenkins, 63 N. C. 147, it must be considered settled in this State, that a tax payer may institute an action either alone‘?? or on behalf of all others similarly situated, to enjoin the collection of an illegal tax, at least by a County or City. This must necessarily be so, if,--as was held in Huggins v. Hinson, Phil. 126, when taxes are collected under a tax list,--the payer cannot recover them back from the Sheriff, although he paid under protest; otherwise there would be no redress against any illegal taxation on property, and no redress could be given for even a clear violation of right. As was said in Brodnax v. Groom, to maintain such an action, it will not suffice that the illegality is trifling, or is in some collateral matter, or by some mistake, or is a mere irregularity; it must be material and go to the very substance and root of the tax. Although it is fit and proper that the Courts should have a power to restrain illegal taxation, at least by the inferior municipalities, such as Counties, Cities, &c,--yet it is...