Simmons v. Wilson, 66 N.C. 336 (1872)

Jan. 1872 · Supreme Court of North Carolina

66 N.C. 336

F. G. SIMMONS et al. vs. THOMAS G. WILSON et al., Commissioners of Jones.

The Commissioners of a County have no right to exceed the double of the State tax, except:

1. To pay debts of the County legally contracted before the adoption of the Constitution.

2, When the tax is for a special purpose, and has been allowed by an Act of the General Assembly.*

«Note. — The Aet authorizing the Commissioners of Jones to levy a tax was repealed March 4th, 1871.

This was a motion to vacate a restraining order, heard before Clarke, Judge, at Chambers.

The complaint alleges that the defendants, the Commissioners of Jones County, had levied 75 cents on the $100 valuation of real estate in said County for school purposes. The same not having been submitted to a vote of the people, nor to a vote of any township, and without authority oí any school committee.

That they had levied a tax to pay old debts, oí 49 cents on the $100 valuation ; that they had levied a tax of 29 cents for current expenses, &c.; all the taxes together amounting to $2, 301|- on the $100 valuation of property, real and personal; that the State taxes for all purposes did not exceed 37 1-0 cents on the $100 valuation aforesaid ; that said taxes are in. violation of the Constitution and laws of the land.

Complaint asks judgment for an injunction, &c.

llis Honor Judge Thomas, made an order requiring the defendants to show cause why an injunction should not be issued and in the mean time granted a restraining order. The defendants answered the complaint. They admitted a levy of 7b cents for school purposes, and alleged that it was necessary for that purpose; that a tax of 49 cents on the $100 valuation-oí real and personal property was levied to pay debts and necessary expenses; that a tax of 77 cents was levied to build' bridges and for the support of the poor, and that amount wag-necessary for that purpose ; and they were authorized to levy the same by an Act of the General Assembly, ratified March 1st, 1870; that a tax of 29 cents on the $100 valuation wag-levied to pay necessary expenses for the ensuing year.

On motion, before Clarke, Judge, the restraining order granted by Judge Thomas, was vacated and plaintiff appealed.

Manly ác Hauyhton, for plaintiffs.

Lehman and Green, for defendants.

ItoDMAN, J.

We think think the Commissioners liad no right to exceed the double of the State tax, except:

1. To pay debts of the County legally contracted prior to the adoption of the present State Constitution. There do not appear to be any of these.

2. When tbe tax is for a special purpose and lias been allowed by an Act of the Legislature. Some of tbe taxes here were levied under an Act which has since been repealed. If the tax was not collected before the repeal, it cannot be collected after-wards.

The judgment below should have continued the injunction as to the excess of the tax over the double of the State tax. The case is remanded to be proceeded in according to law.

Let the opinion be certified Each party will pay his own ■costs

Pi«K CURIAM, Judgment reversed.