State Ex Rel. Town Council of Wadesboro v. Atkinson

Merbimon, C. J. after stating the facts: The exceptions to findings of fact by the referee approved by the Court, cannot be considered here. The findings of fact were conclusive, as there was no exception upon the ground that there was no evidence to support them. Cooper v. Middleton, 94 N. C., 86; Usry v. Suit, 91 N. C., 406; Wiley v. Logan, 95 N. C., 358. The defendants contended that the relators had no authority to levy the taxes in question, and, therefore, the defendant constable was not bound to collect the same. It was insisted particularly that the levy exceeded that allowed by the charter of the town of Wadesboro. That town was incorporated by the statute (Acts 1825, ch. 75), and section seven thereof allowed the proper town authorities to “lay and collect such taxes on town properly not exceeding ten cents on each hundred dollars,” &c., but this limitation was expressly repealed by the subsequent statute (Acts 1879, ch. 155). Moreover, the statute (Acts 1873-74, ch. 8(8) amends the charter of this town so as to confer upon it power to tax all property taxed by the State, and section five thereof pro *320 vides, “That the powers herein granted shall be in addition to those already allowed by law, and the said town of Wades-boro shall have all the privileges and rights allowed to the most favored town in the State,” and section seven provides that this act and that of which it is amendatory “shall be liberally construed in favor of the corporate authorities of said town.” This provision is not very definite as to the increase of the powers of taxation, but it would seem that part of the purpose of it was to allow the authorities to levy taxes as any other town might do. But any doubt in this respect is removed by the statute (The Code; § 3800), applicable to “towns and cities” generally, except when their charters otherwise provide, which, in terms, confers upon such “towns and cities” power to “lay a tax on real and personal estate within the corporation,” and also “on such polls as are taxable by the General Assembly for public purposes,” not oftener than annually. In the absence of power specially conferred upon the town of Wadesboro to levy taxes for its purposes on polls, the statutory provision just cited extended to and embraced it (The Code, §3827). So that the town authorities had ample power to levy the tax in question. They did not exceed the limit upon their power prescribed by the statute (Acts 1881, ch. 116, Schedule B), which prohibited towns and cities from levying a greater tax on real and personal property than one and one-half per centum of the value thereof. The relators had power and authority to appoint the defendant to be town constable, and, as such, it became, and was, his duty to collect the taxes levied for the town; and it was the duty of the relators, also, to take from him a proper bond, conditioned for the faithful discharge of his duties as constable, and particularly for the faithful collection and accounting for the taxes he might be charged to collect. The Code §§3800, 3808, 3809. Moreover, one condition of his bond sued upon is, that he “shall faithfully collect, *321 account for and pay over to the proper officer, all fines, penalties and. taxes which [it] shall be his duty to collect as such officer.” But the appellants insist that the tax-list was not duly placed in the constable’s hands for collection, not having written on the same an order of collection. Neither the charter of the town, nor the general statute in respect to towns and cities, required that such order should be so endorsed. It is sufficient that the taxes were levied, and that a proper list of the same was made out to charge the tax-pajrer. It appears the relators made the levy. It must be taken that this levy was regular and sufficient. The contrary is not suggested. The list was made out — the just inference is, made out from the proper data for the purpose, by the constable, and he took charge of the same “ under verbal directions from the Mayor.” It is not suggested that such list is not a true one. The levy gave it life and force, and created the liability of the tax-payer. It had official sanction. The Mayor recognized it, and the constable accepted it as sufficient. It was sufficient, certainly in the absence of objection, and he cannot be heard now to say the contrary. The law charged him to collect the taxes as levied, and the taxpayers to pay the same. The list directed him as to who owed the taxes and the amount due. If the tax-payers had refused to pay the taxes charged, and questioned his authority in any respect, he -might properly, if there had been need, have obtained other and further evidence of his authority from the town authorities and their records. ITis authority sprang out of the levy and his official character in connection therewith. He undertook, and purported to, and did exercise his authority, and, as it appears, collected most of the taxes due. Why he did not collect the balance does not appear. The presumption is that he could, and ought to have done so. He shows no legal excuse why he did not. *322 He cannot be heard to say, nor can his sureties, that the list was not sufficient. So far as appears, it served all the purposes of a regular list — it does not appear, he does not suggest, that a tax-payor refused to pay on account of the tax-list he had, or on any other account. Under the tax levy, and as town constable, he assumed the duty of collecting the taxes levied, and the law charges him with a faithful discharge of that duty, and makes him and his sureties responsible for his default. It would be unreasonable, unjust and monstrous to allow a public officer to escape responsibility because of mere irregularity, of which he had knowledge, without objection, and which was, in part at least, attributable to himself. The law does not tolerate, much less sanction, such subterfuge and evasion. Judgment affirmed.