Winslow v. Weith, 66 N.C. 432 (1872)

Jan. 1872 · Supreme Court of North Carolina

66 N.C. 432

F. E. WINSLOW vs. HENRY WEITH, Sheriff.

The Superior Courts possess no jurisdiction in actions iu which u tort is waived and the sum received for property sold is sought to be recovered, if the amount demanded does not exceed $300.

This was a civil action tried at the Fall Term 1869, of Per-quimans Superior Court, before TIis Honor, Judge Pool, in complaint and demurrer.

The complaint set forth in substance, that the defendant, under color of certain tax-lists, had exacted of the plaintiff’ illegally, taxes to the amount of $152, and that he had under said tax-lists, seized and sold property of the plaintiff for the price of $152.

The plaintiff in his complaint, waived the tort, and sued in complaint for the price. His Honor sustained the demurrer, and the plaintiff appealed.

Smith for the appellant.

Phillips & Iferrvmon for the appellee.

HodMaN, J.

This action, as it stands since the cofnplaiDfc was atnend'ed, is to recover $152, being an alleged illegal excess of taxes, which the plaintiff paid to the defendant as Sheriff, under protest. It is founded.; on an implied contract, and being far less than two hundred dollars, the Superior Court clearly had no jurisdiction, and the demurrer is sustained on that ground.

Judgment against the plaintiff for costs.

Feb CuRiAM.

Demurrer sustained.

The following note is added by order of the Court:

The counsel by whom the above case was argued, treated it as necessarily requiring an expression of the opinion of the Court, as to the taxing power ®f the Legislature under the Constitution, and the Court supposing that it did, kept it under advisement for several terms, lor the purpose of considering the veri-novel, difficult and important questions involved. Upon examining the recorfl however, it was discovered that the case was not properly in Court, and that the-supposed question did not arise, and as the Court had ¡no desire to express any' opinion on questions of such a character unnecessarily, it abstained from doing so. While, however, it was supposed that it would be necessary, Judge Rod-man prepared arid submitted to his associates, for consideration, a view-of. the ■ questions, which the Court desired to be printed in an appendix to. the reports - of this term. The opinions and arguments therein are not considered as conclusive even in the judgment of the author, and of course as not indicating in -. anyway the opinions-of the other Justices. The publication is thought justified by the novelty, difficulty, and great public importance ol the- questions • discussed, and is made witn the hope that the bar, upon whose honest aid the - Court always relies, will, iu case they should hereaiter be presented for discussion, be prepared to aid the Conrtin meeting them-advisedly. The-most serious-difficulties it will be seen, are not visible at the first glance; -.they lie-beneath the - ¡-urface. The paper referred to will be found in .the appendix-..