President of the Bank of Cape Fear v. Edwards, 27 N.C. 516, 5 Ired. 516 (1845)

June 1845 · Supreme Court of North Carolina

27 N.C. 516, 5 Ired. 516

THE PRESIDENT AND DIRECTORS OF THE BANK OF CAPE FEAR vs. JAMES EDWARDS.

The Cape Pear Bank is subject to the payment of no public taxes, either State or County, except the payment of twenty-five cents on each share of the stock owned by individuals.

Appeal from the Superior Court of Law of Wake county at the Spring Term, 1845, his Honor Judge Dick presiding.

This was an action of assumpsit for money had and received, in which the case appeared to be this.

The defendant is the Sheriff of Wake County, and as such, demanded from the plaintiffs the sum of $ 100, as the amount of taxes, both State and County, assessed upon the house in the city of Raleigh, used and occupied by the plaintiffs as their banking house, and upon the lot on which it stands. It was agreed, the said house and lot were necessary to enable the corporation to carry on its business, and that the sum claimed was not more than would be due, if the property was liable to pay the taxes claimed. The plaintiffs denied that they were by law bound to pay them, and the defendant, conceiving it his duty to collect the sum mentioned, threatened to levy the same by sale, if it was not paid. The plaintiffs paid the amount claimed under protestation.' The action is brought to recover it back. A case agreed was submitted to the Court, and if, in its opinion, the plaintiffs could not recover, a nonsuit was to be entered, if otherwise, then judgment for the amount against the defendant. The Court being of opinion that the plaintiffs were bound to pay the tax, a nonsuit was entered, and the plaintiffs appealed.

Wm. H. Haywood for the plaintiffs.

G. W. Haywood & Miller for the defendant’.

Nash, J.

The Bank of Cape Fear was incorporated By the Legislature, at their session 1833 &. ’34, 2 vol. Rev. Stat.p. 50. By the 11th section of the act it is provided, “ that a tax of. twenty-five cents on each share of stoek, owned by in-viduals in said Bank shall be annually paid into the treasury of the State by the President or Cashier of the said Bank on or before the first day of October ,in each year — and the said Bank shall not he liable to any further tax.” It is difficult to conceive language more expressive of the meaning intended. The Legislature, about, to incorporate a company with banking privileges, to induce individuals to invest their private funds in its stock, engage, in so many words, that the Bank shall not be liable to pay any tax, but one of twenty-five cents ■on each share, and it is now contended, that, in violation of this express declaration, the property of the Bank, that is of the individual stockholders, shall, in addition to the twenty-five cents, payable on each share of stock owned by them, be subjected to the operation of the general revenue law, and to the payment of the taxes imposed for county purposes. This can. not be. It would be in direct violation of the plighted faith, of the State. This act exempts the property of the Bank from the payment of all public dues, in the character of taxes of every kind and description, as well county as State, except that specified. To place the question beyond all doubt, the 19th section contains a clause repealing “every other act or parts of acts coming within the meaning and purview of that Act. Thé power of the legislature to pass the act is not questioned* and they have expressed their will in language too plain to admit of a doubt. The plaintiffs paid the money under compulsion, with a protest as to the defendant’s right. There can be no doubt of their perfect right to recover it back. Brown on Actions, p. 364, and the authorities there cited. The judgment of nonsuit is set aside, and .judgment must be entered for the plaintiffs.

Per Curiam* Judgmént accordingly.