Young v. . Town of Henderson , 76 N.C. 420 ( 1877 )

The debt to Reavis was one which the Commissioners, independent of any statute to the contrary, had power to contract. The expense of extending a street is of the class of necessary expenses, and being of that class, the corporate authorities alone were entitled to judge whether it was actually necessary or not. Wilson v. City of Charlotte, 74 N.C. 748, and cases there cited; Tucker v. City of Raleigh, 75 N.C. 267. But the charter of the town which is found in the Private Acts of 1868-'9, ch. 79, § 22, enacts, "That among the powers hereby conferred on the Commissioners, they may borrow money, pledge the credit of the town and contract debts for the improvement of the town; Provided nevertheless, that these powers shall be exercised strictly in accordance with Art. 7, § 7, of the Constitution of North Carolina, and after the consent of the General Assembly of North Carolina first had and obtained in the manner prescribed in Art. 2, § 16 of the same Constitution." In effect this section provides that the Town shall incur no debt without being previously authorized thereto by the General Assembly. But here is a debt which has been contracted, so far as affirmatively appears, without such consent, and a judgment and execution have been obtained upon it. The want of such authority might have been pleaded by Reavis as a bar to the proceedings to condemn his land for the street.

Perhaps also it would have been available to the corporation as a defence to the action of Reavis against them upon their giving up the land condemned. Any tax payer of the corporation would have been allowed to intervene in the proceedings against Reavis, on the ground that the corporate authorities were contracting a debt without the authority required by the charter. They might perhaps also have intervened in the action of Reavis against the Town, upon the ground that the corporate authorities were acting unfaithfully and fraudulently in defending the action. But it is a different question whether the tax payers can now interpose to prevent the execution of the judgment by the levy of a legal tax, upon the ground that the improvement was unauthorized and the judgment was erroneous.

We are of opinion that the plaintiffs are estopped from denying the debt to Reavis. It is res adjudicata, which cannot be collaterally impeached except for fraud, which is not alleged. The judgment for the debt so long as it stands binds the corporation and all its members and it can not be collaterally impeached by any of them. We must assume that the debt was legally due. It was the duty of the corporate authorities to pay it without waiting for an execution. The effect of the mandamus was to enforce this duty. But it required the Commissioners to pay the debt by a legal tax and not by an illegal one. The question then is, was the tax which they actually levied and the collection of which is sought to be enjoined a legal or an illegal one? In obedience as they supposed to the mandamus, on the 26th May, 1876, they levied a tax of 75 cents on each $100 worth of real estate in the town; of 25 cents on each $100 worth of merchandise purchased for twelve months prior to the first day of May, 1876; and $2.00 on each taxable poll. No ad valorem tax is levied on personal property owned and possessed within the town on any fixed day.

It is settled by several decisions of this Court, that while the Constitution fixes no limit to the amount of taxation which the corporate authorities of a town or city may impose, it does require that the rate of taxation shall be uniform on all property in the town and that the proportion fixed by the Constitution between the tax on property and on polls shall be observed. French v. City of Witmington, 75 N.C. 477; Cobb v. Corporation of Elizabeth City, 1, Ibid Weinstein v. Com'rs. of Newbern,71 N.C. 535.

Section 34 of the charter enacts that the Commissioners may annually levy and collect the following taxes:

1. On real estate not over $1 on the $100 in value.

2. On resident polls not exceeding $2.00.

3. On every $100 worth of goods purchased, c., not exceeding 50 cents.

4. On dogs, c.

5. On swine and goats, c.

It is obvious that these provisions of the charter and the tax levy made in accordance with them, ignore and violate the provisions of the Constitution.

All property is not taxed ad valorem. Personal property in possession is not taxed at all. The proportion of tax between property and polls is not observed. The tax on purchases by merchants is retrospective, which is forbidden by Art. 1, § 32 of the Constitution. It is impossible to maintain that any part of the tax levy is good. The illegality pervades it all. The plaintiffs are entitled upon the pleadings to a perpetual injunction against the collection of the taxes complained of. The corporate authorities can proceed to levy a legal tax to pay the debt. Judgment reversed and perpetual injunction ordered.

Let this opinion be certified.

PER CURIAM. Judgment reversed.