Watson v. Comm'rs of Pamlico

• Decision Date: 31 January 1880
• Citation: Watson v. Comm'rs of Pamlico, 82 N.C. 17 (N.C. 1880)
• Court: North Carolina Supreme Court
• Parties: J. W. WATSON and others v. COMMISSIONERS OF PAMLICO.

82 N.C. 17

J. W. WATSON and others

v.COMMISSIONERS OF PAMLICO.

Supreme Court of North Carolina.

January Term, 1880.

APPLICATION for an Injunction heard at Chambers, Fall Term, 1879, of PAMLICO Superior Court, before Gudger, J.

Upon the hearing the court granted an order that the defendants be perpetually enjoined from levying and collecting taxes to pay certain debts, mentioned in the opinion, and the defendants appealed.

Messrs. Caho, Manly and Gilliam & Gatling, for plaintiffs .

In the absence of legislative provision, the annexed territory is not liable for the old debt of the county.Dill.Mun. Corp., § 128;Currituck v. Dare,79 N. C., 565.Defendants have no power to levy the tax unless the same had been conferred by statute.Com'rs v. Clarke,73 N. C., 255;Wade v. Com'rs,74 N. C., 81;Cooley Const.Lim., 487.Plaintiffs had no voice in creating this debt and are therefore not liable.Draining Co. v. Hooper,2 Metc., 350; Cooley, 493.

Messrs. Grainger & Bryan, for defendants :

Where territory is annexed to a county, it becomes a part of it for all purposes, and the rule of absolute uniformity in taxation is applicable.Cooley on Taxation, 180; Burroughs, 51; and where territory is taken from an indebted county it is relieved of the debts of such county in the absence of legislative provision to the contrary, Dill.Mun. Corp., § 128;92 U. S. Rep., 307;Currituck v. Dare,79 N. C., 565.And the converse must be true on principle.Manly v. Raleigh,4 Jones Eq., 370;Dillon, § 126;8 Ohio, 285;13 Mo., 400.Legislature has absolute control of corporations.11 Ired., 558; Cooley, 231;Dillon, § 126.

SMITH, C. J.

The county of Pamlico, as laid off and defined by the act of February 8th, 1872, was constituted out of detached portions of Craven and Beaufort counties, and when formed was “invested with all the rights, privileges and immunities of other counties in the state.”There are two provisos contained in section two as follows: “That this bill for the formation of said county, together with the obligation to pay its proportionate share of the debt of Craven and Beaufort counties, shall be submitted to the qualified voters of the territory to be formed into a new county for adoption or rejection,” and again “that if a majority of the votes cast in that portion of Beaufort county, proposed to be cut off, shall be against the new county, it shall not form a part of the same.”

The popular vote given in the territory detached from Beaufort was against annexation, and the county was consequently formed entirely from the territory severed from Craven.Upon its organization, the stock in the Atlantic and North Carolina railroad company held by Craven, and its public debt, as required by section ten of the supplementary act of February 10th, 1872, were apportioned between those counties.Acts 1871-'72, chaps. 132 and 182.Subsequently, on application of the inhabitants of Goose Creek Island township, (a portion of the part of Beaufort which had rejected annexation) the general assembly passed the act of February 16th, 1874, and authorized the separation and transfer when ratified by the qualified voters resident on the island, and provided for an election to be held to determine the popular will.Acts 1873-'74, ch. 152.

The election was held, and the proposed transfer to Pamlico was approved and ratified.The act contains no provision in reference to the assumed indebtedness of the county of Pamlico, and its corporate authorities have proceeded to levy a tax upon the newly acquired territory as upon the rest of the county to meet its general liabilities.The action is brought on behalf of the tax-payers of Goose Creek Island to restrain the collection of any taxes levied upon them or their property therein, to meet other than the current and ordinary expense of county government, and especially the indebtedness transferred from Craven.

It is manifest that the adverse vote of the electors, in that part of Beaufort originally included in the boundaries of the proposed new county, finally disposed of the question of its severance and transfer and rendered the act in this regard nugatory and inoperative for any future purpose without the aid of further legislation.It is equally clear that the transfer of Goose Creek Island made dependent on, and being approved by, the inhabitants entitled to vote, in the absence of any authoritative declaration of the legislative will on the subject, must be determined upon general principles and well settled usages prevailing in such cases.

In the case of Com'rs of Currituck v. Com'rs of Dare,79 N. C., 565, the court cites with approval the doctrine laid down in 1 Dill.Mun. Corp., §123, and in support of which many authorities are referred to in these words: “So in Massachusetts it has been held that if a new corporation is...