Stone v. . Comrs. of Stoneville

Clarkson, J. The plaintiffs except and assign error on the ground that the court below erred in failing to make the findings of fact and holdings of law requested by the plaintiffs in Judgment Nos. 1 and 2, and failing to sign same. We do not think these exceptions and assignments of error are borne out by the record. The record discloses: (1) “The petitioners tendered Judgment No. 1 and requested the court to sign it. This the court refused to do, whereupon petitioners except.” (2) “Petitioners then tendered Judgment No. 2, and requested the court to sign the same; this the court refused to do. To this refusal, the petitioners excepted.” There is set forth in the record Judgment Nos. 1 and 2 tendered by plaintiffs, petitioners. It is well settled in this jurisdiction, “If a party thinks that certain findings of fact should be made as material to the case, he should present the same to the court with the request to make such findings; otherwise they will not be considered on appeal.” N. C. Prac. and Proc. in Civil Cases (McIntosh), p. 555. *229 Const, of N. C., Art. Y, sec. 3, in part, is as follows: “Laws shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and, also, all real and personal property, according to its true value in money,” etc. This constitutional provision has been recently discussed in several cases. Ins. Co. v. Stinson, ante, 69; Mecklenburg County v. Sterchi Bros. Stores, Inc., ante, 79; County of Mecklenburg v. Piedmont Fire Ins. Co., ante, 171. N. C. Code, 1935 (Michie), sec. 7971 (50) 5, in part, is as follows: “The board of county commissioners or the governing body of any municipal corporation is hereby authorized and empowered to settle and adjust all claims for taxation arising under this section or any other section authorizing them to place on the tax list any property omitted therefrom.” Private Laws of 1935, ch. 87, sec. 3, is as follows: “That the acts of the board of commissioners of the town of Stoneville in compromising and settling said claim for taxes against the property of the Stoneville Cabinet Company, Inc., and its successors in title for the years prior to one thousand nine hundred and thirty-five, be and are hereby ratified, approved, and validated.” The governing body of the town of Stoneville settled this controversy under the provisions of law above set out and the General Assembly “ratified, approved, and validated” the compromise and settlement. There is no finding of fact that the defendant board of commissioners of the town of Stoneville acted in bad faith in making the compromise settlement of -the tax, or abused its power or discretion in so doing. So, the only question presented is : Can mandamus be resorted to? We think not. In Woodmen of the World v. Comrs. of Lenoir, 208 N. C., 433 (434), speaking to the subject, it is said: “The extraordinary writ of mandamus is never issued unless the party seeking it has a clear legal right to demand it, and the defendant must be under a legal obligation to perform the act sought to be enforced. John v. Allen, 207 N. C., 520.” The judgment of the court below is Affirmed. Stacy, C. J., and CoNNOR, J., dissent.