Pegram v. Commissioners of Cleaveland County, 64 N.C. 557 (1870)

June 1870 · Supreme Court of North Carolina

64 N.C. 557

E. P. PEGRAM v. THE COMMISSIONERS OF CLEAVELAND COUNTY.

' A creditor of a Comity, (by coupons upon County'bonds issued in 1857,) applied for a Mandamus to compel the levy of taxes for the satisfaction of his debt: Held, ' • •

1. That the remedy asked for, was, under the circumstances, the proper one, and, ...

.2. That the “equation of taxatton ” established by the Constitution .of 1868, (Art., Y. s. 7,) does not apply to prevent a County from providing for the payment of its’ debts existing when" that Constitution was adopted.

(University R. R. Co., v. Holden, 63 N. C., 410, and Winslow v. the Comm’rs. of Perquimans, arate 218, approved.)

Mandamus, tried before Logan, J., at Spring Term J.870, of Mecklenburg Court.

■Tbe plaintiff alleged .that he was bolder of -coupons , of bonds issued by Cleveland County in 1857; that tbe act authorizing tbe bonds bad directed that taxes should be levied by tbe County authorities, in order to pay tbe coupons as they became due; that be bad demanded payment, and bad been refused; thereupon be asked . for a mandamus, -directing a, tax to ¡be-levied for bis satisfaction, &c.... -s

Tbe defendants answered, stating that the ..County, was without money to meet .the demand; that.-the.State Constitution (Art. Y, s. 7,) forbids their levying a tax for the purposes of tbe plaintiff, &c. ... ,

To this tbe plaintiff demurred.-

His Honor overruled tbe demurrer, and the plaintiff appealed. .

Jones & Johnston, for the appellant.

Wilson, contra.

Peaeson, O. J.'

The matter set out in the return is not a sufficient cause against the writ of mandcvmus.

1. Mandamus to compel the levy of taxes is the appropriate remedy: Winslow v. Comm’rs. Perquimans, ante, 218. An action will lie against the Commissioners of a County for a money demand; but it appears that in other cases mandamus is the proper remedy.

2. The fact that the Commissioners had no funds in hand, is a very cogent reason for levying a tax in order to raise funds to meet the liability of the County.

3. In University R. R. Co., v. Holden, 63 N. C., 410, all of the Justices of this Court agreed that the u equation of taxation ” established by the Constitution, does not restrict the power of State taxation to meet the interest of the public debt. On the same principle, Art. V, sec. 7 of the Constitution does not restrict the power of County taxation to meet the interest of the debt of the County, and such taxation does not require the special approval of the General Assembly.

Besides, it is alleged in the petition, and not denied by the return, that the act of February 1857, under which these bonds were issued, makes it the duty of the Justices of the County to provide means for paying the interest annually, by levying taxes. The Commissioners succeed to the rights and duties of the Justices. So the power to levy this tax is. ample, and the neglect or refusal to do so, must be ascribed to unwillingness rather than a want of power.

Order overruling the demurrer • reversed. It is declared' to he the opinion of this Court that the writ of mandamus, should he issued as prayed for. This will he certified, to the. end that his Honor may direct the writ to he issued.

Pek Cukiam. Ordered accordingly.