Mauney v. The Bd. of Comm'rs of Montgomery Cnty.

• Decision Date: 30 June 1874
• Citation: 71 N.C. 486
• Court: North Carolina Supreme Court
• Parties: VALENTINE MAUNEY and others v. THE BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY and others.

71 N.C. 486

VALENTINE MAUNEY and others

v.THE BOARD OF COMMISSIONERS OF MONTGOMERY COUNTY and others.

Supreme Court of North Carolina.

June Term, 1874.

A Judge of a District, other than that in which a case is pending, has authority to issue in such cause a restraining order; although he cannot vacate or modify the same.

County Commissioners, by auditing and allowing debts contracted prior to the adoption of the Constitution, do not so change their character as to subject them to the restriction contained in the Constitution relative to taxation.

A mandamus issued against the Commissioners of a County, commanding them to assess, levy and collect taxes, sufficient to pay off the indebtedness of the county, does not warrant them in levying taxes in any other manner, or at any other time, than that prescribed by law; to wit: at their regular meeting on the first Monday in February.

The Constitutional limitation and equation of taxation do not apply to debts made previous to the adoption of the Constitution; to debts contracted since the adoption of the Constitution, they both apply.

( Bear v. Cohen, 65 N. C. Rep. 511, cited and approved.)

MOTION to vacate a restraining order, heard before Buxton, J., at the Spring Term, 1874, of MONTGOMERY Superior Court.

The defendants moved to vacate a restraining order, made at Chambers, by his Honor, Judge Tourgee, of 7th Judicial District, on the 16th day of February, 1874. This motion, after objection, was allowed by the Court, with costs.

The plaintiffs thereupon moved for an injunction order, in like terms and of the same import as the distraining order just vacated. The Court upon consideration of pleadings, proofs, &c., issued an order restraining the defendants from collecting certain portions of the taxes levied, &c. From this order, both plaintiffs and defendants appeal.

The following are the points made and decided upon the hearing below, and at the request of the counsel for both parties, stated by the presiding Judge and presented to this Court as part of the transcript:

By the plaintiff:

(1.) As to the restraining order of Judge Tourgee. This order was made by him at Chambers, while holding a Special Court at Raleigh. He was thus not only outside of the 5th District, where the cause was pending, but also outside of his own, which is the 7th District.

The counsel for plaintiffs insisted that Judge Tourgee had jurisdiction, by reason of C. C. P., sec. 188, by force of the words, “The order” (injunction) “may be made by any Judge of a Superior Court,” &c.

The Court was of opinion that section 188 must be construed in connection with section 345; the injunction being by order in the cause, the application for the order is a motion, (see sec. 345, sub-division 1,) and according to sub-division 3, “ motion must be made within the district in which the action is triable.” The Court was further influenced in opinion by the fact, that the Supreme Court had decided in Bear v. Cohen, 65 N. C. Rep., 511, that a district Judge could not vacate injunction, except in cases pending in his own district; also by the incongruity of having the same cause pending before different Judges at the same time. For these reasons, the Court held, that the restraining order in the cause, made by his Honor, Judge Tourgee, was ultra vires and without authority.

And secondly, should the Court be mistaken in this view, and the subject matter was within the jurisdiction of Judge Tourgee, the Court held, that the restraining order was too broad, and should be modified; and a modified order was accordingly made by the Court and entered upon the minutes.

Plaintiffs excepted.

(2.) A second objection taken by the counsel for the plaintiffs to the order of the Court, wherein it differs from, and modifies the terms used in the restraining order, may be stated thus:

A portion of the claims against the county were for the services rendered previous to the adoption of the present State Constitution, and were audited and allowed by the County Commissioners after the adoption of the Constitution. The plaintiffs insisted, that auditing these claims and allowing them, was a novation of them, which changed the character of the debts, making them new debts, to all intents and purposes, instead of old, and subjecting them to the restriction, so far as the power of taxation is concerned, which are contained in the present Constitution, applicable to county indebtedness.

The Court ruled otherwise, being of opinion that the auditing a claim should not be allowed to have the effect of impairing its value, or detracting from its guarantees of payment. Plaintiffs again excepted.

(3.) The next objection urged by the plaintiffs' counsel was, that the law did not admit of two taxes being assessed and levied by the county authorities in one year; and that as the County Commissioners had assessed a tax at the usual time, under the general State law, they could not be registered by the Court, through mandamus, to assess a second tax the same year.

His Honor ruled, that so far as the old debts of the county were concerned, that is, debts contracted before the present Constitution, it was the duty of the Commissioners to provide for their payment in full by taxation or otherwise; whether it took one or more assessments during the year. In regard to the new debts, his Honor ruled, that inasmuch as they were contracted with a knowledge of the constitutional restrictions upon the county authorities, in regard to taxation, the County Commissioners must observe the constitutional limitation, and not assess more than double of the tax for State purposes in any one year; and if the County Commissioners had not exhausted their authority by going to the...