The Comm'rs of Currituck Cnty v. The Comm'rs of Dare Cnty.

• Decision Date: 30 June 1878
• Citation: 79 N.C. 565
• Court: North Carolina Supreme Court
• Parties: THE COMMISSIONERS OF CURRITUCK COUNTY v. THE COMMISSIONERS OF DARE COUNTY.

79 N.C. 565

THE COMMISSIONERS OF CURRITUCK COUNTY

v.THE COMMISSIONERS OF DARE COUNTY.

Supreme Court of North Carolina.

June Term, 1878.

MOTION for a Mandamus heard at Spring Term, 1878, of DARE Superior Court, before Furches, J.

The plaintiff moved for a mandamus to compel the defendant to levy a uniform tax upon the whole county of Dare to pay a judgment theretofore rendered in favor of the county of Currituck; but the defendant insisted that the tax should be collected only out of that portion of Dare county which was taken from Currituck. His Honor allowed the plaintiff's motion and the defendant appealed.

Messrs. Gilliam & Gatling, for plaintiff .

Mr. J. W. Albertson, for defendant .

SMITH, C. J.

The county of Dare was formed out of parts of the counties of Currituck, Tyrrell, and Hyde, under an act of the General Assembly, ratified and taking effect on the 3rd day of February, 1870. Acts of 1869-'70, ch. 36. Section 17 of the act directs the organization of the county after a popular vote of approval from the electors residing within its proposed limits, and then follows this proviso: “That that portion of the citizens taken from the county of Currituck and attached to the county of Dare shall not be released from their proportion of the outstanding county debt contracted for public improvement before the passage of this act, to be determined by the county commissioners of Currituck and Dare counties.” The debt referred to has been adjusted between the counties, and the share allotted to Dare is 15 11-20 per centum, and the commissioners of Currituck have recovered judgment against the commissioners of Dare for five thousand nine hundred and seventy two dollars, their apportioned part of the ascertained debt of Currituck, reserving the right to prosecute a claim for Dare's ratable share of the disputed debt which may be hereafter adjudged. On the hearing of the application for a mandamus to compel the levy of the necessary tax to meet the judgment, the plaintiff moved that the order direct an assessment upon all the persons and taxable property within the county of Dare, while the defendant moved that the assessment be confined to that portion of the territory severed from Currituck. The Court refused to restrict the assessment and ordered it to be made upon the persons and taxable property of the whole county, and from this the defendant appeals.

The only point before this Court then is as to the correctness of this judgment requiring an assessment upon the whole county. In the case of the Commissioners of Granville v. Ballard, 69 N. C. 18, and Moore v. Ballard, Ibid. 21, a portion of Granville had been detached and annexed to Franklin by the act 1872-'73, ch. 143. Two objections were made to the validity of the act. 1st. That the change of boundary disturbed the senatorial districts and violated Art. II., § 5 of the constitution. 2nd. That the exemption of the taxable property on the transferred territory diminished the ability of Granville county to pay its debts, and pro tanto impaired the security of the creditors for the payment. Both objections were declared untenable because no alteration in the political divisions of the State had been made--the vote being taken as before the dismemberment; and while the boundary lines between the counties were changed for some purposes, they were not changed so as to affect the senatorial districts. And it was further declared that the creditors of Granville county had no such lien on the taxable property therein as prevented its removal,...