Wilkinson v. Boomer

• Court: North Carolina Supreme Court
• Citation: Wilkinson v. Boomer, 217 N.C. 217, 7 S.E.2d 491 (N.C. 1940)
• Decision Date: 28 February 1940
• Docket Number: 17.
• Parties: WILKINSON et al. v. BOOMER et al.

7 S.E.2d 491

217 N.C. 217

WILKINSON et al. v. BOOMER et al.

No. 17.

Supreme Court of North Carolina

February 28, 1940

H S. Ward, of Washington, for plaintiffs appellants.

Worth & Horner, of Elizabeth City, and Rodman & Rodman, of Washington, for defendants appellees.

WINBORNE Justice.

The question for decision is this: Where bonds regularly issued by a drainage district duly established, organized and existing under and by virtue of Chapter 442, P.L.1909, as amended, Subchapter III of Chapter 94, Section 5312 et seq. of Consolidated Statutes of 1919, as amended, pertaining to the establishment of drainage districts, for the payment of which assessments duly made under authority of said act are due and unpaid, may the holder of such bonds maintain an action against an individual owner of land within the district for the foreclosure of the lien of such unpaid assessments? The answer is "No".

It is noted at the outset that the legislature has declared "That the State having authorized the creation of drainage districts and having delegated thereto the power to levy a valid tax in furtherance of the public purposes thereof", such districts "are created for a public use and are political subdivisions of the State". P.L 1921, Chapter 7, Section

2, amending C.S. § 5360.

It is a basic principle that the legislation by authority of which bonds of a municipal corporation or other political subdivision of the State are issued, and their payment provided for, becomes a constituent part of the contract with the bondholders. So the provisions of the statutes regarding the issuance of drainage bonds and the levying, assessing and collecting of assessments, as well as remedies generally existing for the enforcement of such assessments, in effect at the time the bonds are issued, become a part of the contract between the district and the bondholders. Jones on Bonds and Bond Securities, sec. 527, vol. 1, page 590.

What then are the provisions of the statute under which the bonds held by the present plaintiffs were issued, regarding the collection of the assessments levied for the payment of those bonds?

Section 5360 of Consolidated Statutes, as amended, provides that the assessment roll, after the clerk of Superior Court has appended thereto an order directing the collection of such assessments, "shall thereupon have the force and effect of a judgment as in the case of state and county taxes".

Section 5361 of Consolidated Statutes declares in part that: "The assessments shall constitute a first and paramount lien, second only to state and county taxes, upon the lands assessed for the payment of the bonds and interest thereon as they become due, and shall be collected in the same manner and by the same officers as the state and county taxes are collected."

Adverting to these and other provisions of the drainage act, in the case of Com'rs. v. Lewis, 174 N.C. 528, 94 S.E. 8, 11, Allen, J., said: "The assessments are to be collected by the sheriff, who collects the taxes; they are to be paid over by the plaintiff to the county treasurer; they are protected by the bonds of these public officers; and these are the only means provided in the statutes for their collection, custody, and protection." See also Middle Canal Co. v. Whitley, 172 N.C. 100, 90 S.E. 1.

The statutes relating to sale of real estate for the non-payment of taxes which are a lien thereon shall be made by the sheriff or other tax collecting officer, C.S. § 8010, who issues to the purchaser a written certificate of sale. C.S. § 8024. The county, municipality or individual holder of such certificate of sale may in due time foreclose the lien of such certificate under the provisions of C.S. § 8037. Guilford County v. Estates Administration, Inc., 213 N.C. 763, 197 S.E. 535.

However, the county or municipality levying taxes or assessments which are a lien upon real estate may at its election proceed under the provisions of C.S. § 7990 to enforce the lien in an action in the nature of an action to foreclose a mortgage in which the court shall order a sale of the real estate. Wilmington v. Moore, 170 N.C. 52, 86 S.E. 775; Cherokee County

v. McClelland, 179 N.C. 127, 101 S.E. 492.

The right of a drainage district to so proceed in its own name is recognized in Long Creek Drainage Dist. v. Huffstetler, 173 N.C. 523, 92 S.E. 368; Muddy Creek Drainage Comrs. v. Epley, 190 N.C. 672, 130 S.E. 497.

"Throughout all the authorities a clear distinction seems to run between the cases where a private plaintiff brings an action to compel the levy and collection of taxes to pay a debt due him and where the sovereign seeks to collect its own taxes for the general purposes of government. The citizen has only such remedies as are given to him; the state has inherently all remedies not voluntarily and unequivocally relinquished." State and Guilford Co. v. Georgia Co., 112 N.C. 34, 35, 17 S.E. 10, 11, 19 L.R.A. 485.

The provisions of C.S. § 7990 are only available to a private individual or a private corporation "holding a certificate of tax sale or deed under a tax sale, whether as original purchaser at a tax sale or as assignee of the county or other municipal corporation or of any other holder thereof".

The remedies provided for the collection of taxes are adequate. Speaking thereto in Cherokee County v. McClelland, supra, 179 N.C. 127, 101 S.E. 493, Hoke, J., said: "The laws of this state make comprehensive...