Mann v. . Allen

Horas, J. From a perusal of the pleadings it appears that in 1910 the New Hope Special School District in Franklin County was established pursuant to the law controlling the question, Revisal, sec. 4115, and thereafter continued in the exercise of powers then conferred, levying an annual tax for school purposes, etc., and on the first Monday in August, 1915, this tax was levied for the current year, 1915-16; that on 7 October the tax lists were placed in the hands of defendant for collection and some of the taxes had been already collected at the time of action commenced, on 11 November; that, relying upon the usual special tax in .said district, the school authorities had employed teachers for the present fiscal year and had entered into contracts looking to the maintenance of the school and which cannot be carried out without this tax in addition to the regular apportionment. It further appears that on the first Monday in August, 1915, upon petition properly approved and indorsed, pursuant to amendment to the law, chapter 135, Laws 1911, the entire legislation appearing in Gregory’s Supplement, vol. 3, pp. 655-656, an election was ordered on the question of revoking the special school tax and abolishing the district; that the election was held on 10 September, 1915, and the question was carried in favor of the repeal, and return thereof made to the next meeting of the board of commissioners on the first Monday in October, being 4 October. In reference to the question thus presented,' in a proceeding of this character, legislative in its nature and involving chiefly the repeal of a tax, it is very generally held that, as to taxes already levied, the same will be given a prospective effect only unless the law controlling the matter clearly forbids such a construction. Clegg v. The State, 42 Texas, 615; Tel. Co. v. The Commonwealth, 66 Pa. St., 70; S. v. Savings Bank, 68 Me., 515; Smith v. Auditor General, 20 Mich., 398; Town of Belvidere v. Warren R. R. Co., 34 N. J., 193; Smith v. Keely, 64 Ore., pp. 464-473; 1 Cooley on Taxation, p. 21. In Clegg v. The State, supra, it is held that the repeal of former tax laws does not relinquish the right of the State to recover taxes previously levied but not collected. *221 In Smith v. Keeley, supra, Moore, J., delivering tbe opinion, said: “It is tbe general rule tbat, unless reserved, tbe repeal of a special-tax law destroys tbe remedy for enforcing tbe collection of tbe tax, but wben a tax system is revised and tbe former law. repealed, tbe legislative intent is assumed to be of prospective force only, and bence, prior valid assessments shall not be affected by sucb repeal.” And tbe principle is stated in substantially similar terms by Judge Cooley in bis work on Taxation, as follows: “Tbe repeal of a tax law puts an end to all right to proceed to a levy of taxes under it, even in cases already commenced, and statutory remedies for tbe enforcement of a tax are gone wben a statute is repealed without an express saving; but in general, wben a tax system is revised with tbe repeal of a former law, it is safe to assume tbat tbe legislative intent is tbat tbe new enactment is of prospective force only, and shall not disturb existent valid assessments.” This position was fully approved and applied with us in tbe recent ease of Marsh v. Early, 169 N. C., 465. In tbat case a portion of territory contiguous to tbe town of Aulander bad by legislative enactment and vote been added to tbe Aulander School District, and, a debt having been contracted, taxes were levied for tbe current year to pay tbe interest. Pending collection, tbe Legislature repealed tbe statute by which tbe adjacent territory bad been added, and it was held, tbe present Chief Justice delivering tbe opinion, tbat, as to tbe taxes already levied, tbe repealing statute should operate prospectively and taxes could be collected. We regard this case, and tbe principle upon which it rests, as decisive of tbe one before us, and are of opinion tbat, on tbe facts as appearing and admitted in tbe pleading's, tbe restraining order should have been dissolved. We are confirmed in this view by reason of tbe fact also appearing in tbe record, tbat tbe school authorities, pursuant to tbe duties incumbent upon them, have employed teachers and assumed obligations for tbe current year, and tbat these cannot be met without tbe collection of this additional tax. They bad no right to fail in their present duties because tbe election might result in tbe abolition of tbe district. They were compelled to their proper performance under tbe law as it existed, and, this being true, there is doubt if tbe Legislature could, directly or indirectly, repeal tbe law establishing tbe district so as to deprive creditors of all remedy for their claims. True tbat, under our Constitution, tbe right reserved to tbe General Assembly to repeal or modify acts of incorporation, municipal or other, is very broadly conferred, Article VII, sec. 14; Article VIII, sec. 1; but, as to creditors, tbe power is not unlimited, and it may be tbat, under tbe principles recognized by this Court in Broadfoot v. Fayetteville, 124 N. C., 478, tbe collection of this tax could, in any event, be enforced to tbe extent required to meet obligations lawfully incurred. *222 While it is not necessary to decide this question, tbe facts referred to are proper to be considered in support of tbe construction tbat tbe statute and tbe proceedings under it are and are intended to be prospective only, for, in cases of doubt, tbe courts should always incline to tbe interpretation tbat will assuredly uphold tbe law. Black Interpretation of laws, p. 93. It is earnestly insisted for tbe plaintiffs tbat, on tbe present record, there bad been no levy of these taxes within the meaning of cases referred to and on which our decisions have been made to rest. It is true tbat, when referring to the action of executive officers, tbe term “levy” is usually properly held to mean the taking of property into the possession or control of the officer, Perry v. Hardison, 99 N. C., 21; Cary v. German, 84 Wisc., 80; but when used in reference to taxation it more generally refers to the imposition of the tax by tbe Legislature or under proper legislative sanction or to tbe apportionment of such tax to tbe individual taxpayer and placing the same on tbe official lists preparatory to their collection, and in some instances is said to be tbe equivalent of “assessment.” S. v. Lakeside Land Co., 71 Minn., 283; Moore v. Forth, 32 Miss., 469; 27 A. and E. (2 Ed.), p. 729. In Cooley on Taxation, p. 22, supra, the author, as heretofore quoted, in stating the principle, said that, “On repeal of a former law, the new enactment shall be prospective only, and shall not disturb valid assessments." On tbe record, we are of opinion, as stated, and so hold, tbat the abolition of tbe district should be properly considered as prospective in its operation, and that tbe collection of tbe current tax laid and already assessed should be enforced under tbe provisions of existent law. There is error, and the judgment is Reversed.