Town of Saluda v. Polk County

• Decision Date: 10 October 1934
• Docket Number: 164.
• Citation: 176 S.E. 298,207 N.C. 180
• Parties: TOWN OF SALUDA v. POLK COUNTY.
• Court: North Carolina Supreme Court

176 S.E. 298

207 N.C. 180

TOWN OF SALUDA v. POLK COUNTY.

No. 164.

Supreme Court of North Carolina

October 10, 1934

Appeal from Superior Court, Polk County; Finley, Judge.

Controversy without action by the Town of Saluda against the County of Polk, to determine priority of certain tax liens. From a judgment determining their priority, both parties appeal.

Affirmed.

This is a controversy without action, C. S. §§ 626 to 628, inclusive. The agreed statement of facts is as follows:

"(1) That the Town of Saluda is a municipal corporation organized and existing under and by virtue of the laws of the State of North Carolina, and has been such a municipal corporation since the year 1880. That the boundaries of said municipal corporation are situated and located within the territorial limits and boundaries of the County of Polk and the State of North Carolina; that the said town has operated as a municipal corporation, being governed by a Board of Aldermen, consisting of four members, duly and regularly elected by the citizens of the Town of Saluda and a Mayor, who is also elected by the citizens of said town, and has been so governed since the organization of the said town and the issuing of its charter in the year 1880.

(2) The County of Polk is a municipal corporation organized and existing under and by virtue of the laws of the State of North Carolina, and is one of the 100 counties in said State; that the said County of Polk has been such a corporation since its organization in the year 1847.

(3) That as such municipal corporation, the Town of Saluda at various times since its organization has borrowed money and issued its bonds for various municipal improvements in said Town, and the said Town now has outstanding against it an indebtedness on account of various bond issues, amounting in principal to approximately $265,000.00, and interest in the sum of $237,000.00, which sums consist of bonded indebtedness and obligations of the Town of Saluda; that the said bonded indebtedness of the Town of Saluda hereinafter referred to is payable in annual installments from the present time to the year 1966.

(4) That Polk County, in pursuance of the laws, from time to time has duly and legally issued its bonds for county-wide purposes in the principal amount of $711,945.00, and interest in the sum of $573,271.00; that the above indebtedness represents principal and interest to be paid in annual installments extending from the present to the year 1961.

(5) That both of the said municipalities, in order to operate in accordance with the laws of the State of North Carolina, have annually levied taxes for the purpose of operation and for meeting the principal and interest of their bonded indebtedness.

(6) That there is a certain real property situated on Greenville Street, in the Town of Saluda and in the County of Polk on which taxes at the rate fixed in accordance with the provisions of law were levied and assessed for the year 1929 in the name of J. S. Smith, on a valuation of $3,000.00 by both the Town of Saluda and Polk County, in the following amounts (inclusive of the penalties provided by law), that is to say: Town of Saluda $81.00 and Polk County $117.82.

(7) That the said taxes on said property were delinquent and unpaid and after the said Town of Saluda had become the owner of the tax certificate representing the said delinquent taxes due said town and the said Polk County had become the owner of the tax certificate representing the said delinquent taxes due said County a joint action was started by said Town and said County in accordance with the provisions of section 1, of chapter 389, Public Laws of 1931, for the foreclosure of said certificates; that in addition to the taxes for the year 1929, as above set forth, the following unpaid and delinquent taxes were established as having been lawfully levied and assessed against the said property for the years subsequent to 1929, that is to say: Taxes due Polk County: 1930, $72.00; 1931, $63.60; 1932, $55.50; 1933, $59.40. Taxes due Town of Saluda: 1930, $76.20; 1931, $71.40; 1932, $65.40; 1933, $37.50.

(8) That in said action there was further established the fact that the Town of Saluda had lawfully levied against said property a street assessment in the sum of $547.13, and that the said assessment was owing, unpaid and delinquent.

(9) That the said action proceeded to judgment whereby the said tax certificates were ordered foreclosed, and M. R. McCown was appointed the commissioner of the Court to make the sale of the property. At the said sale, the Town of Saluda became the last and highest bidder for the said property in the sum of $414.84.

(10) This controversy is for the purpose of determining how the said amount shall be distributed by the said Commissioner. Polk County contends that the distribution should be made as follows: 1st. That the costs of the action as taxed should be paid. 2nd. That the amount remaining should be applied to the payment of the taxes due Polk County for the years 1929 to 1933 inclusive. And 3rd. That the excess, if any should then be applied to the payment of the taxes and street assessments due the Town of Saluda.

The Town of Saluda contends that the distribution should be made as follows: 1st. That the cost of the action as taxed should be paid. 2nd. That the amount remaining should be applied equally and ratably to the payment of the taxes and street assessments due the Town of Saluda and Polk County for the years 1929 to 1933 inclusive, as established in said action, and as herein agreed upon. In other words, Polk County contends that the lien of the County for the said taxes is superior and paramount to the lien of the Town of Saluda, while the Town of Saluda contends that the respective liens of the Town and County are on a parity and of equal dignity."

The judgment rendered in the court below is as follows:

"This case coming on to be heard before the undersigned Judge now holding the Courts of the 18th Judicial District upon agreed case in controversy without action, as appears of record, after hearing the argument and reading the briefs of plaintiff and defendant on the question involved to-wit: (1) Does the street assessment established by the Town of Saluda constitute a lien on a parity and of equal dignity with the tax liens due Polk County and the Town of Saluda? (2) Are the tax liens due the Town of Saluda on a parity and equal with the tax liens due Polk County?

The Court answers the first question 'No' and the second question 'Yes'; and judgment is hereby rendered accordingly, so that the fund in hand may be divided in accordance with this judgment. T. B. Finley, Judge Holding the Courts of the 18th Judicial District."

The plaintiff excepts to the judgment and assigns error in that the court erred in holding that the street assessment levied by the town of Saluda did not constitute a lien on a parity and of equal dignity with the tax liens due Polk county and the town of Saluda.

The defendant excepts to the judgment, and assigns error in that the court erred in holding the tax liens due town of Saluda are on a parity and equal with the tax liens due Polk county.

Upon the above exceptions and assignments of error, both parties appealed to the Supreme Court.

Quinn, Hamrick & Hamrick, of Rutherfordton, for plaintiff.

Massenburg & McCown, of Tryon, for defendant.

CLARKSON Justice.

The first question presented for our consideration: Is the judgment of the court below correct, which holds that the street assessment levied by plaintiff, the town of Saluda, does not constitute a lien on a parity and of equal dignity with the tax liens due Polk county and the town of Saluda? We think so.

In Gunter v. Town of Sanford, 186 N.C. 452, 460, 120 S.E. 41, 45, citing many authorities, is the following: "As we have heretofore indicated, the statutes prescribing the method of improving the streets of the town and regulating assessments against property are referred to the right of taxation, and the exercise of such right is not judicial but entirely legislative. The legislative authority is vested in the General Assembly (Const. art. 2, § 1), and counties and municipal corporations, as was said in Jones v. Com'rs, 137 N.C. 579, 50 S.E. 291, are regarded merely as 'agencies of the state for the convenience of local administration in certain portions of the state's territory and in the exercise of ordinary governmental functions they are subject to almost unlimited legislative control, except when restricted by constitutional provision'-a principle which has been consistently maintained in the decisions of this court."

Code of North Carolina 1931 (Michie), § 2713, in part, is as follows: "From the time of such confirmation the assessments embraced in the assessment roll shall be a lien on the real property against which the same are assessed, superior to all other liens and encumbrances. After the roll is confirmed a copy of the same must be delivered to the tax collector or other officer charged with the duty of collecting taxes."

In City of Kinston v. Railroad Co., 183 N.C. 14, 23 24, 110 S.E. 645, 649, it is said: "And further in section 2717 the law provides if the lien 'is not paid when due, it shall be subject to the * * *' penalties now provided as in case of unpaid taxes, thus showing a clear purpose of the Legislature to make the lien effective and superior to any and all other liens or incumbrances. It would be an idle thing to confer such a lien and then withdraw any and all means for its effective enforcement, and in our opinion the lien in question here when properly established amounts to a statutory mortgage having preference, as stated, over any and all liens and incumbrances existent or...