Norfolk Southern R. Co. v. Reid

• Decision Date: 27 February 1924
• Docket Number: 13.
• Parties: NORFOLK-SOUTHERN R. CO. v. REID, SHERIFF.
• Court: North Carolina Supreme Court

121 S.E. 534

187 N.C. 320

NORFOLK-SOUTHERN R. CO. v. REID, SHERIFF.

No. 13.

Supreme Court of North Carolina

February 27, 1924

Appeal from Superior Court, Pasquotank County; Devin, Judge.

Action by the Norfolk-Southern Railroad Company against Charles Reid, Sheriff and Tax Collector of Pasquotank County. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Among other taxes levied by the board of commissioners for 1923 were the following:

General county fund ..... .18 on the $100

County road bonds ....... .26 on the $100

General road fund ....... .06 on the $100

General floating debt ... .03 on the $100

General county schools .. .50 on the $100

In December, 1923, the plaintiff brought suit against the defendant to enjoin the collection of $197.65, which was a tax of 3 cents on every $100 valuation of its property, on the ground that the levy was in excess of the constitutional limitation. A temporary restraining order was issued, and the cause was heard and determined at the January term, 1924 upon the complaint and answer (which were treated as affidavits), the resolution of the board of commissioners the levy, and other record evidence.

The defendant in his answer alleged the facts to be substantially as follows: On the 11th day of August, 1923, the board of commissioners met and first determined to levy 15 cents on each $100 valuation of property for general county purposes and upon further consideration determined that it was necessary to levy a special tax of 3 cents on each $100 valuation for the construction and maintenance of bridges and the maintenance of the county home for the aged and infirm. The board then levied 15 cents for the general county fund and 3 cents as a special tax for the combined purposes of constructing and maintaining bridges and maintaining the home for the aged and infirm. At said meeting the clerk of the board placed the general county fund at 18 cents, adding the 15 cents general county fund, and the levy of 3 cents for bridges and the county home, making 18 cents on the $100 valuation, and so expressed it in the resolution and on the minutes. For the purpose of computing the taxes he carried it out on the tax books so as to make one calculation instead of two. The resolution as recorded on the minutes of the board of commissioners for said meeting of August 11, 1923, is, as appears in Exhibit A, attached to the complaint. At the meeting of said board of commissioners held in the courthouse on the 3d day of September, 1923, the same being the next regular meeting of the board, the minutes of the meeting held on the first Monday in August, 1923, were read and declared adopted.

His honor apparently accepted the defendant's answer as true, and found the facts to be as therein set out.

The plaintiff contends that the board of commissioners levied 18 cents for the general county fund, and exceeded by 3 cents the limit prescribed by the Constitution (article 5, § 6), and that the act under which it was levied (Pub. Laws 1923, c. 7) is itself invalid. The defendant takes the position that, although the minutes of the board show a levy of 18 cents for the general county fund, only 15 cents was levied for this purpose, and the additional 3 cents for maintaining the county home and building and repairing bridges. The plaintiff replies that the minutes of the board cannot be impeached in this action.

The restraining order was dissolved, and the action dismissed. The plaintiff appealed.

Thompson & Wilson, of Elizabeth City, for appellant.

Aydlett & Simpson, of Elizabeth City, for appellee.

ADAMS J.

The plaintiff bases its claim to injunctive relief on the ground that the tax levied for general county purposes is in excess of the constitutional limitation, and therefore illegal. C. S. §§ 858, 7979. There is no suggestion that the tax was levied in breach of article 7, § 7, of the Constitution, or that the maintenance of the county home and the building and repairing of bridges do not involve a necessary expense. Long v. Com'rs, 76 N.C. 273; Herring v. Dixon, 122 N.C. 420, 29 S.E. 368. But the plaintiff says that the act purporting to authorize the levy of an annual tax in addition to the rate allowed by the organic law is itself invalid because it conflicts with the provisions of article 5, § 6, of the Constitution. The amended section is as follows:

"The total of the state and county tax on property shall not exceed 15 cents on the one hundred dollars value of property, except when the county property tax is levied for a special purpose, and with the special approval of the General Assembly, which may be done by special or general act: Provided, this limitation shall not apply to taxes levied for the maintenance of the public schools of the state for the term required by article nine, section three, of this Constitution: Provided further, the state tax shall not exceed five cents on the one hundred dollars value of property."

The tax was levied under this act:

"The board of commissioners of the various counties in the state, for the purpose of maintaining roads, bridges, the upkeep of county buildings, county homes for the aged and infirm and other similar institutions, and to supplement the general county fund, are hereby authorized to levy annually a tax upon all taxable property not to exceed five cents on the one hundred dollars of valuation, in addition to any tax allowed by any special statute for the above enumerated purposes and in addition to the rate allowed by the Constitution." P. L. 1923, c. 7.

The plaintiff insists (1) that the tax therein proposed is to be levied, not for a special purpose, but for supplementing the general county fund, and (2) that, even if the purpose of maintaining bridges and county institutions be construed as special, the purpose to supplement the general county fund is not special, and as one of the purposes is unauthorized the entire act must fail.

The Constitution (article 5, § 6) was amended as hereinbefore set out in pursuance of chapter 93 of the Public Laws enacted at the Extra Session of 1920. Before the amendment its provisions were these:

"The taxes levied by the commissioners of the several counties for county purposes shall be levied in like manner with the state taxes, and shall never exceed the double of the state tax, except for a special purpose, and with the special approval of the General Assembly." C. S. vol. 2, p. 1119; Const. art. 5, § 6.

The "special approval" which before the amendment was to have been given by a special statute may now be expressed by a special or a general act. It should be noted that the cases cited in support of the plaintiff's position were decided prior to the time the amendment went into effect. The first is Williams v. Com'rs, 119 N.C. 520, 26 S.E. 150. There it was shown that the General Assembly had authorized the commissioners of Craven county to levy a special tax for the special purpose of maintaining free public ferries, constructing, repairing, and maintaining bridges, and meeting the other current expenses of the county (Pub. Laws 1895, c. 201), and that the commissioners had levied a tax for all these purposes. It was further shown that the plaintiff had brought suit to enjoin the collection of the tax, and that a temporary restraining order theretofore granted had been vacated at the hearing. On appeal the judgment was reversed and the injunction was made permanent, two of the justices dissenting. The court decided that building bridges and maintaining public ferries are special purposes in the constitutional sense, but declared the tax unconstitutional on the ground that it had been levied, not only for these purposes, but to meet the current expenses of the county. The levy was treated as indivisible, and the entire tax was held to be uncollectible.

In Southern Railway v. Cherokee County, 177 N.C. 86, 97 S.E. 758, the plaintiff sought to recover the amount of certain taxes paid under protest. The act there in controversy purported to authorize the board of commissioners of any county in the state to levy a special tax in excess of the constitutional limitation "to provide for any deficiency in the necessary expenses and revenue of said respective counties." Pub. Laws 1913, c. 33, § 9. This court held that the first and sixth sections of article 5 of the Constitution (before they were amended) should be considered together, that the act of 1913 was not a special law, and that a tax levied for current expenses was not levied for a special purpose. In a concurring opinion Mr. Justice Walker dissented from the conclusion that section 6 permitted a tax exceeding the limit fixed in the first section; but by reason of the amendments this question is not now material. In a later reference to the case he said:

"In that case the tax was intended to provide for past deficits in the revenues for ordinary and necessary county expenses, and fell directly within article 5, § 1, of the Constitution, prescribing the limitation and equation of taxation, not within section 6 of that article." Parvin v. Commissioners, 177 N.C. 508, 99 S.E. 432.

Also in Railway v. Commissioners, 178 N.C. 449, 101 S.E. 91, the object was to recover a tax which had been levied under a public local law "to meet the current and necessary expenses of the county" (Public Local Laws 1917, c. 101, § 1), and the court held, as in the Cherokee Case, that the tax was illegal, and sustained the plaintiff's recovery.

Now, if we apply the statement of Chief Justice Marshall that "every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered" (U.S. v. Burr, 25 Fed. Cas. page 165), we must conclude that, although a tax "to supplement...