Muddy Creek Drainage Commission v. Epley

Varser, J. Plaintiff’s right to collect, by suit, tbe assessments made against tbe land in Muddy Creek Drainage District, for tbe purpose of settling its outstanding indebtedness, is challenged by tbe demurrer. Plaintiff’s powers and duties are prescribed in chapter 348, Public-Local Laws 1913, as amended by chapter 107, Public-Local Laws 1923. Its additional powers are those tbat arise by necessary implication. Tbe assessment is expressly made a lien on tbe lands within tbe drainage district, according to tbe assessment roll. This assessment is in rem, and not in personam, and tbe land in tbe district is tbe sole security for tbe payment thereof. Drainage District v. Huffstetler, 173 N. C., 523. We are of tbe opinion tbat tbe drainage district has tbe power to maintain this action for tbe purpose of foreclosing tbe lien of said assess: ment in analogy to tbe foreclosure of a tax lien pnder O. S., 7990, formerly Rev., 2866. Drainage District v. Huffstetler, supra; Wilmington v. Moore, 170 N. C., 52; Guilford v. Georgia Co., 112 N. C., 34. *674 Gatling v. Comrs., 92 N. C., 536 is not in conflict with its ruling. The sole question presented in this latter ease was whether the plaintiff, a judgment creditor of Carteret County on bonds issued by the county, can set up -the judgments as a set-off or counterclaim against the taxes admitted by him to be due to the county, and the court held that he could not, citing Cooley on Taxation, 15, 16, to the effect that, “when no remedy is specially provided, a remedy by suit may fairly be implied, but when one is given which does not embrace an action at law, a tax cannot in general be recovered in a common-law action as a debt.” The case at bar is not an action at law to recover in debt, but is a suit in equity to foreclose a lien. The summary method of collection by a sheriff or collector is not an exclusive remedy. Wilmington v. Moore, supra. A sheriff of either of the counties in which the area embraced within this drainage district lies, could not maintain an action in his name to collect this tax. Berry v. Davis, 158 N. C., 170. Non constat that the drainage district in the same manner as a city or county may not maintain such action. We cannot conceive that the Legislature intended, when it granted this power to tax, which is the highest and most essential power of the government, an attribute of sovereignty and absolutely necessary for the existence of the drainage district, to make the collectibility of the assessments solely dependent upon a sheriff or tax collector, however great his diligence might be. New Hanover County v. Whiteman, ante, 332. The judgment sustaining the demurrer is Reversed.