Muddy Creek Drainage Commission v. Epley, 190 N.C. 672 (1925)

Dec. 9, 1925 · Supreme Court of North Carolina

190 N.C. 672

MUDDY CREEK DRAINAGE COMMISSION, Composed of A. S. ABERNATHY, J. A. GETTYS, T. Y. BIGGERSTAFF, G. B. MANGUM, L. L. LAIL and WILLIAM HEMPHILL, v. T. L. EPLEY.

(Filed 9 December, 1925.)

Drainage Districts — Assessments—Liens—Actions—Parties—Statutes.

Tlie assessment of owners of land in a drainage district given by chapter 348, Public-Local Laws of 1913, amended by chapter 107, Public-Local Laws of 1925, is a lien in rem, and enforcible in equity, in analogy to the enforcement of a tax lien, by an action by the commissioners of the district: and the position that the sole method is by the sheriff, etc., under proceedings under the provisions of the act itself, is untenable. C. S., 7990.

Appeal by plaintiff from McDowell Superior Court. Harding, J.

The plaintiffs allege that they were the duly constituted board of Muddy Creek Drainage Commission, pursuant to chapter 348, Public-Local Laws of 1913; and that the defendant resides in McDowell County and is tbe owner of certain lands in Muddy Greek Valley, in said county, wbicb lands are a portion of Muddy Greek Drainage area; tbat, pursuant to said act, plaintiffs, for thei purpose of drainage of Muddy Greek, assessed against tbe defendant’s land in Muddy Creek, for tbe years of 1915, 1916, 1917, 1918 and 1919, tbe sum of $395.00, wbicb levy was placed in tbe bands of tbe sheriff of McDowell County, wbo died without collecting tbe same, and tbat they are empowered and authorized to collect tbe same pursuant to chapter 107 of tbe Public-Local Laws 1923.

Tbe defendant demurred, assigning grounds of demurrer as follows:

“1. Tbat it appears from tbe face of tbe complaint tbat tbe only authority for tbe institution and' maintenance of this action is by authority of chapter 107, Public-Local Laws 1923, and tbat it appears from tbe provisions of said act tbat any assessment dues under said drainage act can only be collected by and through a collector, to be appointed by tbe plaintiff as provided in said -chapter 107, Public-Local Laws 1923, and tbat plaintiff has no authority in law to maintain this action in its corporate name.

“2. Tbat it does not appear from tbe face of said complaint tbat under tbe provisions of said chapter 107, Public-Local Laws 1923, that plaintiff has proceeded to tbe collection of such assessments alleged to be due as provided therein or tbat it has exhausted tbe remedy therein provided for such collection.”

Tbe judgment sustaining tbe demurrer was entered and tbe plaintiff appealed.

Avery & Hairfield and Hudgins, Watson & Washburn for plaintiff.

Spainhour <£ Mull and Morgan & Ragland for defendant.

Varser, J.

Plaintiff’s right to collect, by suit, tbe assessments made against tbe land in Muddy Creek Drainage District, for tbe purpose of settling its outstanding indebtedness, is challenged by tbe demurrer. Plaintiff’s powers and duties are prescribed in chapter 348, Public-Local Laws 1913, as amended by chapter 107, Public-Local Laws 1923. Its additional powers are those tbat arise by necessary implication. Tbe assessment is expressly made a lien on tbe lands within tbe drainage district, according to tbe assessment roll. This assessment is in rem, and not in personam, and tbe land in tbe district is tbe sole security for tbe payment thereof. Drainage District v. Huffstetler, 173 N. C., 523.

We are of tbe opinion tbat tbe drainage district has tbe power to maintain this action for tbe purpose of foreclosing tbe lien of said assess: ment in analogy to tbe foreclosure of a tax lien pnder O. S., 7990, formerly Rev., 2866. Drainage District v. Huffstetler, supra; Wilmington v. Moore, 170 N. C., 52; Guilford v. Georgia Co., 112 N. C., 34. Gatling v. Comrs., 92 N. C., 536 is not in conflict with its ruling. The sole question presented in this latter ease was whether the plaintiff, a judgment creditor of Carteret County on bonds issued by the county, can set up -the judgments as a set-off or counterclaim against the taxes admitted by him to be due to the county, and the court held that he could not, citing Cooley on Taxation, 15, 16, to the effect that, “when no remedy is specially provided, a remedy by suit may fairly be implied, but when one is given which does not embrace an action at law, a tax cannot in general be recovered in a common-law action as a debt.”

The case at bar is not an action at law to recover in debt, but is a suit in equity to foreclose a lien. The summary method of collection by a sheriff or collector is not an exclusive remedy. Wilmington v. Moore, supra. A sheriff of either of the counties in which the area embraced within this drainage district lies, could not maintain an action in his name to collect this tax. Berry v. Davis, 158 N. C., 170. Non constat that the drainage district in the same manner as a city or county may not maintain such action.

We cannot conceive that the Legislature intended, when it granted this power to tax, which is the highest and most essential power of the government, an attribute of sovereignty and absolutely necessary for the existence of the drainage district, to make the collectibility of the assessments solely dependent upon a sheriff or tax collector, however great his diligence might be. New Hanover County v. Whiteman, ante, 332.

The judgment sustaining the demurrer is

Reversed.