Teeter v. Wallace

• Decision Date: 02 May 1905
• Parties: TEETER. v. WALLACE, Sheriff.
• Court: North Carolina Supreme Court

138 N.C. 264

50 S.E. 701

TEETER.

v.WALLACE, Sheriff.

Supreme Court of North Carolina.

May 2, 1905.

LICENSE TAX —PAYMENT UNDER PROTEST—RECOVERY BACK—LIABILITY OP SHERIFF —STATUTES—CONSTRUCTION.

1. Acts 1903, p. 333, c. 247, § 35, requires dealers in horses and mules to pay a license tax. By section 87 (page 352) the sheriff is authorized to levy on property for the collection of the tax when the person liable therefor fails to pay the same. By section 84, c. 251, p. 400, Acts 1903, he is required to make a return to the State Auditor the 1st of each month of all taxes or license fees received by him during the next preceding month, and within 10 days thereafter pay the same to the State Treasurer. Held, that a person paying such tax to the sheriff under an agreement with the sheriff that in case the payer was not liable therefor it would be returned to him, was not entitled to maintain an action against the sheriff for the return of the money after it had been paid by the sheriff to the State Treasurer, in view of Acts 1901, p. 795, c. 558, § 30, providing that, if the person claiming any tax to be invalid shall pay the same to the' sheriff, he may, at any time within 30 days thereafter, demand the same, in writing, from the State Treasurer when it is a state tax, and that, if the same shall not berefunded within 90 days thereafter, he may sue and recover judgment against the county therefor in which such tax was collected, if it is determined that the tax is for any reason invalid.

2. The property of a person was levied on by the sheriff for the failure to pay a license tax under Acts 1903, p. 333, c. 247, § 35, requiring dealers in horses and mules to pay a license tax, and the sheriff consented to allow such person to pay a sum of money and release the property levied on, and thereupon executed a receipt reciting that as sheriff he had levied on the property for a tax known as the license tax for selling horses, etc., and that it was paid under protest, the payer reserving the right to test by law the validity of the tax, and that the money was left with him for that purpose. Held, that the receipt was not a promise on the part of the sheriff to hold the money until the controversy as to liability was settled.

Appeal from Superior Court, Mecklenburg County; O. H. Allen, Judge.

Action by M. P. Teeter against N. W. Wallace, sheriff of Mecklenburg county. From a judgment for defendant, plaintiff appeals. Affirmed.

Plaintiff sued defendant before a justice of the peace to recover the sum of $25, the amount of taxes illegally collected by defendant as sheriff. From judgment against plaintiff he appealed to the superior court. At the trial in the latter court plaintiff in his own behalf testified: "That in March, 1904, defendant, as sheriff of Mecklenburg county, demanded of him the sum of $25 license tax for carrying on the business of a dealer in horses and mules, under section 35, c. 247, p. 333, Acts 1903. He insisted that he was not liable for the tax, and thereupon the sheriff seized a mule, the property of the plaintiff, for the purpose of collecting the same. Plaintiff, in order to secure the release of the mule, asked the sheriff if he would permit him to deposit the sum of $25, the amount claimed for the tax. That the sheriff consented thereto, and received the sum of $25 upon the terms set out in the following receipt or paper writing, to wit: 'March 12, 1904. Received of M. P. Teeter $25. This money is left with me for the following purposes: I, as sheriff of Mecklenburg county, have levied on one mule of the said M. F. Teeter for a tax known as the license tax for selling horses, etc., and the said M. F. Teeter pays this money under protest, reserving the right to test by law the validity of my requiring him to pay said tax. And I hereby consent to M. F. Teeter's reserving the right to test the validity of requiring him to pay this tax. N. W. Wallace, Sheriff."' The sheriff thereupon released the mule, and turned him over to the plaintiff. The plaintiff then offered evidence tending to show that he was not engaged in dealing in horses or mules, and that he was not liable' for the tax. Defendant objected to this evidence. The court sustained the objection, and the plaintiff excepted. It was admitted that the sheriff had paid the tax of $25 over to the State Treasurer before the commencement of this action. Defendant demurred to the evidence. The court, being of the opinion that the plaintiff could not recover, sustained the demurrer and nonsuited the plaintiff. Plaintiff excepted and appealed.

Spence & Newell and T. C. Guthrie, for appellant.

Burwell & Cansler, for appellee.

WALKER, J. (after stating the facts). We do not see upon what ground the plaintiff is entitled to recover in this action. That the money he paid to the sheriff should be refunded to him if he was not liable for the tax is admitted, but he cannot recover it otherwise than is provided by law. He must resort to the remedy which has been prescribed for his case, as it is sufficient for the purpose of vindicating his right. The tax imposed by section 35, c. 247, p. 333, Acts 1903, is a state tax, and is required to be paid to the State Treasurer as other taxes of a like kind are paid. By section 87 (page 352) the sheriff is given authority to levy upon real and personal property for the purpose of collecting...