Parker v. Commissioners of Johnston County

[93] Clark, C. J. This is an action, upon facts agreed, to compel the commissioners of Johnston County to distribute and refund the surplus of the fund which had been collected in said county to construct and maintain a stock law fence. The whole of Johnston County having been placed under the stock láw by legislative enactment, the necessity for the continuance of said fence had ceased. Thereupon by sec. 4, ch. 466, Public-Local Laws 1915, it was provided: “The board of commissioners of Johnston County is hereby authorized to sell for cash, at public or private sale, all stock law fences in the county, and the iiro-ceeds derived from the sale of the same, together with any stock law funds now on hand, shall be returned to the general fund of said county.” This statute is clearly mandatory. The plaintiffs claim that this statute is unconstitutional and seek to have the fund distributed to the landowners from whom it has been collected as a special assessment. The surplus consists of something over $4,000 accumulated in the several years beginning in 1912, and probably $1,500 from the sale of the fence made in compliance with the statute. As to the latter, it is clearly county property as much so as proceeds from the sale of an abandoned courthouse or a discarded bridge or any other kind of property. As to the accumulated excess the bounds of the stock law have been changed from time to time, and, besides, some of those paying the assessment have died and their estates have been settled and others have moved away. If the commissioners should have desired to refund the surplus to those who paid it in, this would have been difficult. The cost of calculating and dividing the -sums to refund to each of those who from 1912 down to this time have paid assessments for the stock law fence would be considerable. Almost the only benefit that would accrue to any one would be the commissions to the tax collectors for again collecting the same sum for necessary county purposes. But the only question really before us is whether there is any restriction in the Constitution forbidding the General Assembly to direct that the surplus of a fund in the county treasury collected for any purpose shall be used by the county for any necessary expenses. We know of no such provision. Suppose this fund had been raised by a special tax authorized by the Legislature to build a jail or a courthouse or for any other purpose, is there any constitutional restriction which forbids the Legislature from directing afterwards that the surplus which may happen instead of being returned to the taxpayers shall be used by the county for any other necessary jturpose. In the absence of a statute, officers have no power to refund taxes though illegally collected. 21 A. & E., 756. [94] It is true tbat this particular fund, was collected, from the real estate owners for the purpose of building a stock law fence. Rut there are other taxes which have been collected from certain specified sources and in like manner to be applied to special purposes. Eor instance, the license tax derived from automobiles is appropriated to the highway commission for the purpose of building and maintaining public roads. Should there be any unused excess of such fund by reason of funds derived from the Federal Government, or from the general property tax or otherwise, would not the Legislature have power to direct its application to general purposes? There is also a fertilizer tax which has been apxDropriated to the use of the Agricultural Department and 25 cents per bale on all cotton ginned in the State to provide for a warehouse system. If for any reason there should be an excess in these funds, or if the warehouse system were abandoned, the Legislature could certainly direct that the unused surplus of these funds should be applied to other purposes, and it would not be necessary on constitutional grounds to divide up this remnant of the fund and to return dividends therefrom to the companies paying the fertilizer tax or to the farmers paying the gin tax. There have been many other instances of taxes raised from special sources and appropriated by the act creating them to special purposes, among them the retail liquor' license which went to the schools. Would it be necessary to return the surplus, if any, of'such fund to the barkeepers? "Whenever there is an excess, which rarely happens, it is in the power of the sovereign either to redistribute this surplus to the parties paying it in or (as probably has always been done) direct that it shall bé applied to other purposes. "Whether the fund has been accumulated in the State Treasury or in the county treasury, it is in the discretion of the General Assembly whether that in the State Treasury shall be applied to other State purposes and whether the funds accumulated in the county treasury shall be applied to other necessary county purposes. It is true that the stock law funds were collected by an assessment upon real estate only, but whether it was collected from real estate or from all property or from property and polls or from license and other taxes is an immaterial circumstance which cannot affect the power of the General Assembly to direct that any fund in the county treasury unused shall be applied to general county purposes. If so applied, it will go to schools, roads and bridges and all other necessary expenses of the county. If it were returned to the real estate owners who are among the largest taxpayers the amount returned would have to be again assessed and collected. The difference between the small dividend refunded to each of the 2,600 taxpayers in this case and the amount [95] which would be again collected out of them to make good the deficit thereby caused in the county treasury would be almost infinitesimal. In Connor and Cheshire on the Constitution, 282, it is said: “Where a statute authorizing the levy of a tax beyond the constitutional limit, for a special purpose, is infra vires, the taxes collected beyond the requirement of the special purpose may be turned into the general fund and used for general purposes.” In Long v. Comrs., 16 N. C., 280, the Court says: “We know of no statute nor any rule of law, public or private, which prevents the county commissioners from applying a tax raised professedly for one purpose to any other legitimate purpose.” In Williams v. Comrs., 119 N. C., 520, the Court held that where a statute authorized the levy of a tax for a lawful purpose but beyond the constitutional limit the taxes collected beyond the requirements of the special purpose may be turned into the general fund and used for general purposes, but where the act will authorize the levy partly for a legal purpose and 'partly for an illegal purpose, it is ultra vires and no part of the levy can be collected. The Court was unanimous as to the application of such taxes after collection. Though there was dissent on another point, there was no difference on the view expressed in the latter opinion that “if the levy had been authorized for two purposes only, and a surplus had been raised, it would have gone into the county treasury to meet current expenses without any further authorization of the act. Long v. Comrs., 76 N. C., 275.” The plaintiff relies upon Comrs. v. Comrs., 92 N. C., 180, where Lenoir and Greene counties having united to erect a stock law fence around a district lying partly in both, and Greene complained that owing to a difference in the assessment of real estate in the two counties an excessive amount had been paid by the taxpayers therein, it was adjudged that the disparity should be corrected by reassessment, and that the surplus wrongfully collected in Greene should be reimbursed by Lenoir, such fund to be held in trust by the former for the reimbursement of those who had overpaid their share. But in that case there was no statute, as in this, authorizing the fence to be sold and the proceeds thereof and any surplus funds still in hand to be used for general purposes. It was an equalization statute between the contributors to the fund in the two counties. We find in the Constitution nothing denying to the General Assembly the power to direct that the surplus of this fund in the county treasury (which seems already to have lain there idle for four and a half years, since this act was passed in 1915, at a loss in interest equal to more than a fourth of the fund) shall be used for general county purposes. In Parker v. Comrs., 104 N. C., 166, it is held that the requirement [96] in tbe Constitution, Art. Y, see. 7, that “Every act of tbe General Assembly levying a tax shall state tbe special object to which it is to be applied, and that it shall be applied to no other,” has no application to taxes levied by the county authorities for county purposes. In R. R. v. Comrs., 148 N. C., 247, the Court said: “We do not concur with the suggestion that the commissioners have the power to levy and collect a tax for a specific purpose and apply any part of it to another purpose,” giving as a reason that the taxpayer was entitled to an order enjoining the appropriation of any part of the excess over interest on the bonds to any other purpose, for it could be held to meet the interest for the following year or for a sinking fund. This clearly does not apply to cases where the purpose for which the sum is raised having been completely attained, there is a surplus left in the treasury which must either be applied to general county purposes or be returned to the taxpayers to be collected again for such general purposes, which is avoided by retaining such surplus for that use. When a tax or assessment is paid into the public 'treasury of the State or a county, if the purpose expressed in the act is fully accomplished, leaving an unexpended surplus, the State or county has control of it, and bad faith cannot be imputed by the courts to the Legislature in authorizing such surplus, to be “covered into the general fund.” Affirmed.