McAlister v. . Yancey County

CoNNOR, J. It is provided by statute in tbis State that every person who owns or keeps a dog of the age of six months or more shall pay annually, for the privilege of owning or keeping said dog, a license tax. the amount of the tax to be determined by the sex of the dog. Sections 1 and 2 of chapter 116, Public Laws of North Carolina, 1919; N. C. Code of 19,35, section 1673. Since the repeal of chapter 84, Public Laws of North Carolina, 1923, by chapter 318, Public Laws of North Carolina, 1929; N. C. Code of 1935, section 1684 (b), this statute and' all its provisions are applicable to persons residing in Yancey County. The statute is valid and constitutional. See Board of Commissioners v. George, 182 N. C., 414, 109 S. E., 77; Newell v. Green, 169 N. C., 462, 86 S. E., 291. It is provided by section 7 of the statute “that the money arising under the provisions of this act shall be applied to the school funds of the county in which said tax is collected; provided, it shall be the duty of county commissioners, upon complaint made to them of injury to person or of injury to or destruction of property by any dog, upon satisfactory proof of such injury or destruction, to appoint three freeholders to ascertain the amount of damages done, including necessary treatment, if any, and all reasonable expenses incurred, and upon the coming in of the report of such jury of the damage as aforesaid, the said county commissioners shall order the same paid out of any moneys arising from the tax on dogs, as provided in this act.” Under the provisions of this statute, no liability for damages resulting from an injury to person or from an injury to or destruction of property by dogs is imposed upon a county in its corporate capacity. A claim for such damage, Avhen established in accordance with the provisions of the statute, is payable only upon the order of the board of commissioners of the county, and then only, from moneys which have arisen or which shall arise from the tax on dogs owned or kept by persons who reside in the county. Such claim is in no event payable out of the general fund of the county. For this reason, no action can be maintained against a county to which the statute applies for damages resulting from injury to person or from injury to or destruction of property by dogs. If, as alleged in the complaint, the board of commissioners of Yancey County has arbitrarily refused to consider the claim of the plaintiff, and to hear proof of such claim, and determine whether or not such proof was satisfactory to said board, as it was its statutory duty to do, then and in that event the plaintiff can maintain an action against said board of commissioners for a writ of mandamus compelling the said *211 board of commissioners to consider bis claim, and determine whether or not his proof of said claim is satisfactory to the said board. See Reed v. Farmer, 211 N. C., 249, and Barnes v. Commissioners, 135 N. C., 27, 47 S. E., 737. There was error in the order overruling the demurrer in this case. The order is Reversed.