Town of Hendersonville v. Price

• Citation: 96 N.C. 423,2 S.E. 155
• Court: North Carolina Supreme Court
• Decision Date: 25 April 1887
• Parties: TOWN OF HENDERSONVILLE v. PRICE and others.

96 N.C. 423

2 S.E. 155

TOWN OF HENDERSONVILLE

v.PRICE and others.

Supreme Court of North Carolina.

April 25, 1887.

Appeal from superior court, Henderson county.

*155 T. F. Rickman, T. F. Davidson, and E. C. Smith, for plaintiff.

Ewart & Posey, for defendant.

DAVIS, J.

This was a civil action tried before AVERY, J., at the fall term, 1885, of the superior court of Henderson county. A trial by jury was waived, and the court found the facts as follows:

On the fourth day of July, 1883, the mayor and commissioners of the town of Hendersonville took from the defendants a bond for the payment of $400 for the privilege of retailing spirituous liquors in said town till July 1, 1884, as follows:

“$400. On or before the first day of July, 1884, we, or either of us, promise to pay the commissioners of the town of Henderson ville four hundred dollars liquor tax, for value received of them.

“Witness our hands and seals this, the fourth day of July, 1883.

“The above bond is to be paid in installments of one hundred dollars each, at the end of every three months, to-wit, the first day of October, 1883, and every three months thereafter.

[Signed] “WM. PRICE. [Seal.]

M. S. FARMER. [Seal.]

W. D. WHITTED. [Seal.]

HENRY T. FARMER.” [Seal.]

This bond purported to have been taken by virtue of chapter 203, Priv. Laws 1847, as amended by chapter 35, Laws 1883, and especially section 5 of the latter act.

This action was brought on the fifth of August, 1884, by the mayor and commissioners who succeeded the former board in May, 1884. The defendants admit the execution of the bond, the death of H. T. Farmer, one of the obligers to the bond, and the qualification of his administrator, M. S. Farmer; and only upon the ground set up in the answer, that the mayor and commissioners had no power or authority to take said bond for taxes, and had no power, under the said acts, or under any general law, to give to any one the power or privilege of retailing for any time after the first Monday in May, 1884, when a new board was elected and qualified. It was admitted as a fact that a mayor and commissioners were elected and qualified in May, 1884. Before the bond sued on was executed, the mayor and commissioners had passed an ordinance in the following words:

“Be it ordained by the commissioners of the town of Hendersonville, in the county of Henderson and state of North Carolina, that the following taxes, special, poll, and ad valorem, shall be levied and collected for the purposes of improvement of streets, defraying expenses of the town, etc., viz.: *** “Sec. 3. On every retailer of spirituous, vinous, or malt liquors, there shall be a special privilege tax of four hundred dollars per annum, to be paid in advance, or secured by bond approved by the commissioners.”

After the execution of the bond, and before the first day of January, 1884, the defendant Price made a payment of $40 on said bond. No part of the bond has ever been paid except the said sum of $40.

Upon the facts the court held that the plaintiffs were not entitled to recover, and there was judgment accordingly. From the judgment of the court the plaintiffs appealed. Notice of appeal was waived, and an appeal-bond in the sum of $50 was adjudged sufficient.

The plaintiff is a body corporate, exercising its corporate powers through a mayor and board of commissioners. By the fifth section of its charter it is enacted, among other things, “that in addition to the ad valorem tax on property and polls, the said board of commissioners shall have power to levy and collect the following special taxes for the privilege of carrying on the business or doing the acts hereinafter named in said town, to-wit: (1) On all licensed retailers of spirituous, vinous, malt, or alcoholic liquors, not more than ten hundred dollars.” By virtue of the power thus conferred the commissioners passed the ordinance imposing at tax of $400 on retailers of spirituous liquors, as set out in the pleadings. The special tax was “to be paid in advance, or secured by bond approved by the commissioners;” and, instead of paying it in advance, the defendant Price secured it by bond, the other defendants and the intestate of the defendant M. S. Farmer executing it under seal as his sureties.

It is not denied that the plaintiff had the power to impose and collect the tax, but it is insisted for the defendants (1) that the mayor and commissioners had no authority to take the bond for taxes; (2) that they had no power or authority in July, 1883, to give to any one license to retail for any time after May, 1884, when a new board was elected and qualified.

1. The answer to the first position is that the defendant Price, instead of paying the tax in advance, executed his bond with sureties approved by the board, obtained thereby the license, and enjoyed the benefit of the privilege to which the payment of the tax entitled him. He elected, for his own advantage and convenience, to give...