Rotan v. State
| Decision Date | 07 March 1928 |
| Docket Number | 251. |
| Citation | 141 S.E. 733,195 N.C. 291 |
| Parties | ROTAN et al. v. STATE. |
| Court | North Carolina Supreme Court |
Proceeding by Allethaire L. Rotan and others against the State. Proceeding dismissed.
This is a proceeding to enforce a claim against the state of North Carolina for the sum of $17,909.62, with interest thereon from December 2, 1920. The original jurisdiction of this court, conferred by section 9 of article 4 of the Constitution of North Carolina, is invoked with respect to said claim.
Claimants filed their complaint in the office of the clerk of this court on April 10, 1927. An answer to said complaint was filed thereafter by the Attorney General on behalf of the state. The proceeding has been heard and considered by this court upon the pleadings.
The nature and grounds of the claim for the enforcement of which the proceeding has been instituted in this court, are set out in the complaint, as required by statute. C. S. § 1410. All the material facts upon which the claim is founded are admitted in the answer. No issue of fact is raised by the pleadings.
Claimants have begun this proceeding, and prosecute the same in this court as executors of Geo. W. Elkins, deceased. Their testator, at the date of his death, to wit, October 23, 1919 was a resident and citizen of the state of Pennsylvania. At no time during his life had he been a resident or citizen of the state of North Carolina, or domiciled therein. He owned at the date of his death, certificates of stock in, and securities issued by, the R. J. Reynolds Tobacco Company, a corporation created by, and existing under the laws of the state of New Jersey, but doing business in the state of North Carolina. No part of his estate, real or personal, was situate in the state of North Carolina. By his last will and testament, which was duly probated in the state of Pennsylvania, in accordance with the laws of said state, the said Geo. W. Elkins bequeathed the certificates of stock in and securities issued by the R. J. Reynolds Tobacco Company to legatees named therein. None of these legatees are residents of or domiciled in the state of North Carolina. The certificates of stock and securities bequeathed in his last will and testament were held by the said Geo. W. Elkins, at the time of his death, in safety deposit boxes of banks and trust companies situate in the state of Pennsylvania.
After the death of Geo. W. Elkins, and after claimants herein had qualified as executors of his last will and testament, as required by the laws of the state of Pennsylvania, the state tax commission of North Carolina notified the R. J. Reynolds Tobacco Company, at its office in the city of Winston-Salem N. C., that the state of North Carolina demanded the payment of an inheritance tax upon the stock and securities of said company bequeathed by the said Geo. W. Elkins in his last will and testament, before said stock and securities were transferred on the books of said company, or before any dividends on said stock or interest on said securities were paid to the executors or to any one claiming under them. The said tax commissioner further demanded of the said executors that they furnish to the said commission information required for the assessment of said inheritance or transfer tax. Pursuant to said demand, the said executors, protesting that the estate of their testator was not liable to the state of North Carolina for said tax, upon forms prescribed by said tax commission, furnished the information required. The said tax commission thereafter assessed the amount of said tax as claimed by it, at $17,909.62, and demanded the payment of said sum by said executors.
On November 30, 1920, the executors of Geo. W. Elkins, through their attorney, sent to the state tax commission of North Carolina, by mail, their check in payment of said tax. This check was received on December 2, 1920, and a receipt acknowledging payment of the tax was thereafter duly forwarded to the executors. No protest in writing was made by said executors at the time said tax was paid, nor was any demand made by them for the return of said sum, prior to the commencement of this proceeding in 1927. Accompanying said check was a letter addressed to the state tax commission signed by the attorney for the said executors, in words as follows:
Claimants herein, as executors of Geo. W. Elkins, in their complaint filed in this proceeding, allege that the state of North Carolina was without power to demand and collect any part of said tax from the estate of Geo. W. Elkins on the stock and securities held by said estate in the R. J. Reynolds Tobacco Company, and that the assessment and collection of said tax was wrongful and illegal, for that the statute of the state of North Carolina, under which the said assessment and collection was made, was invalid. Claimants further allege that the collection of said tax was a taking of the property of said estate by the state of North Carolina, without due process of law.
The state, by its demurrer ore tenus to the complaint, contends that this court has no jurisdiction of this proceeding, under section 9, art. 4, of the Constitution of the state, for that an action to recover the amount paid by claimants as a tax, upon the ground that said tax was wrongfully and illegally assessed and collected, was within the exclusive jurisdiction of the superior court, by virtue of the statute providing for such action against the state or its officer for the recovery of a sum illegally collected as a tax; the consent of the state to be sued in the action having been expressly given by statute.
Upon consideration of the demurrer ore tenus upon this ground, the court was of opinion that it should be sustained for the reasons set out in the opinion below. The proceeding is therefore dismissed.
Manning & Manning, of Raleigh, for claimants.
Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.
The sum paid by claimants as executors of Geo. W. Elkins, deceased and received by the state of North Carolina, as admitted in the pleadings herein, was assessed and collected by the state tax commission as an inheritance tax or transfer tax due by said executors to the state of North Carolina, by virtue of the provisions of C....
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