Carstarphen v. Town of Plymouth

ClaeksoN, J. “Every person owning property is required to list, and shall make out, sign, and deliver to tbe list-taker a statement, verified by bis oath, of all tbe real and personal property, moneys, credits, investments in bonds, joint-stock companies, annuities, or otherwise, and tbe value of improvements on real estate since same was assessed, in his possession or under his control on the first day of May (italics ours), either as owner or bolder thereof, or as parent, guardian, trustee, executor, executrix, administrator, administratrix, receiver, accounting officer, partner, agent, factor, or otherwise.” (Tbe provisos of tbis section are not material for tbe decision of tbis case.) Public Laws 1921, cb. 38, sec. 30. Hyatt v. Walston, 174 N. C., 55; 37 Cyc., 788. Section 33 of tbe act, supra, provides: "Where personal ■ property shall be listed. Section 38 of tbe act, supra, provides that tbe taxpayer shall take an oath that tbe property listed “is a full, true and complete list of all and each kind of property owned by me,” . . . “and that I have not neglected to list for taxation for tbe year all of each and every kind of property of wbicb I am tbe owner,” etc. “If any person liable to be charged with taxes shall wilfully refuse to answer any questions respecting bis property, or refuse to file, sign, and swear to bis returns, be shall be guilty of a misdemeanor, and on conviction liable to be punished by a fine not exceeding fifty dollars, or imprisonment not exceeding thirty days, or both; and it shall be tbe duty of tbe assessors or list-taker to have tbe offender prosecuted; and tbe list-taker shall complete tbe list from tbe best information be can obtain. Every list-taker and chairman of tbe board of county commissioners shall have power to send for persons and papers, and to examine witnesses and administer oaths.”’ Public Laws 1921, cb. 38, sec. 71. (Same provision in Public Laws 1923, cb. 12, sec. 65.) “Taxes shall not be a lien upon personal property, except where otherwise provided by law, but from a levy thereon (italics ours) : Provided, that no mortgage or deed of trust executed upon personal property shall have tbe effect of creating a lien thereon superior to tbe lien acquired by a subsequent levy upon said property for tbe payment of tbe State, county and municipal taxes assessed against tbe same; but tbe sheriff or other tax collector levying upon such property, for tbe purpose of *94 collecting tbe taxes due thereon, shall give due notice to the mortgagee or trustee of such property of the amount of such taxes at least ten days before the sale of the same, and such trustee or mortgagee shall have the right to pay said taxes and the costs incident to making the levy, when the sheriff or tax collector shall release the same to such trustee or mortgagee, and the amount so paid by said trustee or mortgagee shall constitute a part of the debt secured in the mortgage or deed of trust. O. S., sec. 1986. “All persons who own property and willfully fail to list it within the time allowed before the list-taker or the board of commissioners shall be guilty of a misdemeanor, and the failure to list shall be prima facie evidence that such failure was willful, and it shall be the duty of the board of commissioners to present to the grand jury the names of all such persons.”, Public Laws 1921, ch. 38, sec. 82. (Same provision in Public Laws 1923, ch. 12, sec. 75.) “The lien of the State, county, and municipal taxes levied for any and all purposes in each year shall attach to all real estate of the taxpayer situated within the county or other municipality by which the tax list is placed in the sheriff’s hands, which lien shall attach on the first day of June, annually, and shall continue until such taxes, with any penalty and costs which shall accrue thereon, shall be paid.” C. S., sec. 7987. ■ “The lien for taxes levied -for any and all purposes in each year shall attach to all the real estate of the taxpayers within the city on the first day of May, annually, and shall continue until such taxes, with any penalty and costs which shall accrue thereon, shall be paid. Bui there shall he no lien for taxes on the personal property of the taxpayer hut from a levy thereon(Italics ours.) O. S., sec. 2815. The plaintiffs pursued the lawful and correct remedy by conforming strictly to the statute, paying the money under protest and suing to recover same. C. S., sec. 7979. There is an old saying that there are only two things certain on this earth — “taxes and death.” It is impossible to escape either. Every citizen has to aid in supporting the government under which he lives, and this cannot be done without taxes. The burden should be borne equally by all, and all public officials, whose duty it’ is to do so, shall expend same legally, with economy and efficiency. Taxes have priority over homestead and personal property exemptions. There is no lien on personal property for taxes but from a levy thereon. Shelby v. Tiddy, 118 N. C., 792; Wilmington v. Sprunt, 114 N. C., 310. Const., Art. Y, sec. 3, exempts certain notes, mortgages, etc., given in good faith for purchase price of a home, when purchase price does not exceed $3,000, and when notes, mortgages, etc., to run for not less *95 than five or more than twenty years, provided the interest on notes, mortgages, etc., does not exceed 5% per cent. Exemptions allowed on incomes; married man and wife, living together; widow or widower having minor child or children, natural or adopted, not less than $2,000. All other persons not less than $1,000, and there may be allowed other deductions (not including living expenses), so that only net incomes are taxed. The rate of tax on incomes shall not exceed 6 per cent. The Constitution allows certain property to be exempt from taxation. “Property belonging to the State, or to municipal corporations, shall be exempt from taxation. The General Assembly may exempt cemeteries and property held for educational, scientific, literary, charitable or religious purposes; also wearing apparel, arms for muster, household and kitchen furniture, the mechanical and agricultural implements' of mechanics and farmers, libraries and sciéntific instruments, or any other personal property, to a value not exceeding three hundred dollars.” Const., Art. Y, sec. 5. “The list shall be given by the person charged during the months of May and June, as herein described.” (Proviso not quoted.) Public Laws 1921, ch. 38, sec. 31. The board of county commissioners and governing body of any municipal corporation are given power to enter or list.real or personal property and add 25 per cent to same for each year unlisted- — for five back years in which the property was not listed. Laws 1921, ch. 38, secs. 81 and 82. (Laws 1923, ch. 12, secs. 74 and 75, have practically the same provisions.) From the facts agreed, on the first day of May, 1922, and prior thereto, Mrs. M. W. Oahoon owned a stock of merchandise and store fixtures in Plymouth, N. C. On 9 May she sold the personal property to the plaintiffs for $12,000; that neither the plaintiffs or defendants listed the said property for tax, but on 7 June, 1922, the list-taker for Plymouth Township listed the stock of merchandise for taxation, and on 13 February, 1923, demanded payment of the plaintiffs, and they paid same under protest and in accordance with the statute, and bring this action to recover of -the defendants $141.60 and interest on same from date of payment. We have recited the law in reference to listing, etc., of taxes fully, as applies to this ease. It was the duty of Mrs. M. W. Oahoon to return her tax on the personal property that she sold the plaintiffs during the months of May and June to the proper list-taker. Said return should have been on the personal property and its value as 1 May. If she did not return it herself, or by an authorized agent, the proper official should have listed it in her name on the tax books. The proper officer could have levied on any real or personal property that she owned to *96 collect tbe tax, except that exempted by constitutional and legislative enactment in conformity thereto. No homestead or personal property exemptions can be claimed against taxes. Mrs. M. W. Cahoon having sold the personal property after 1 May to plaintiffs, they obtained a good title, free from taxes. A lien could only be on personal property for taxes from the levy. It is a misdemeanor for anyone not to list the property he or she owns for taxes. The town of Plymouth, E. W. Chesson, tax collector, has no authority by law to collect the tax from plaintiffs. ■ Under the agreed state of facts, Mrs. M. W. Cahoon is liable for the tax. The proper officer shall list same in her name and collect from her the taxes in the manner provided by law. There is no error in the judgment of the court below. Affirmed.