Town of Hendersonville v. Price

Davis, J., (after stating the facts). The plaintiff is a body corporate, exercising its corporate powers through a mayor and board of commissioners. By the fifth section of its charter, it is provided among other things: “That in addition to the ad valorem tax on property and polls, the said Board of Commissioners shall have power to levy and collect the following special taxes for the privilege of carrying on the business or doing the acts herein after named, in said town, to-wit: (1.) On all licensed retailers of spirituous, vinous, malt •or alcoholic liquors, not more than ten hundred dollars.” By virtue of the power thus conferred, the commissioners passed the ordinance imposing a tax of $400 on retailers of spirituous liquors, as set out in the pleadings. The special tax was “ to be paid in advance, or secured by bond, approved by the Commissioners,” and instead of paying it in advance, the defendant Price secured it by bond, the other defendants, and the intestate of the defendant M. S. Farmer, executing it under seal, as his sureties. *426 It is not denied that the plaintiff had the power to impose and collect the tax, but it is insisted for the defendant: I. That the mayor and commissioners had no authority to take the bond for taxes. 2d. That they had no power or authority in July, 1883, to give any one license to retail for any time after May, 1884,. when a new board was elected and qualified. I. The answer to the first position is, that the defendant Price, instead of paying the tax in advance, executed his bond with sureties, approved by the board, obtained thereby a license, and enjoyed the benefit of the privilege to which the payment of the tax entitled him. He elected, for his own advantage and convenience, to give the bond instead of paying the tax in cash; it was executed under seal, and he and his sureties will not be heard to say that the commissioners had no power or authority to take such a bond.' The consideration was not an illegal one, and they are estopped by its execution. “Though a contract be in fact-wholly invalid when executed, still, (supposing it not to be prohibited by law as relating to some illegal transaction,) if it be acted upon afterward by the parties to it as valid, they will, if sui juris, be estopped thereafter to allege its invalidity.” Bigelow on Estoppel, 575. The commissioners were not prohibited by law from taking the bond, and, as against the defendants, its execution estops them from denying its validity. Ryan v. Martin, 91 N. C., 467, and cases there cited. II. For the second position, the defendants rely on the-authority of Commissioners of Wilmington v. Roby, 8 Ired., 255; and The Commissioners of Raleigh v. Kane, 2 Jones, 296. These cases sustain the position, that the board of commissioners cannot issue license for more than one year, and that the tax therefor must be annual, but we do not understand, as the defendants insist, that the license must begin and terminate with the term of office of the board by which *427 it was granted. The Board of Commissioners for the town of Hendersonville for the year 1883, could issue a license for one year, and collect the tax for one year, but the license and the tax must be for only one year. The official term of the board of commissioners is from the first Monday in May, when elected, to the first Monday in May of the year following. The license is from the first of July of the year in which it is issued, to the first of July of the following year. The board of commissioners elected in May, 1883, had a right to issue a license for one year from the 1st of July, 1883, but they had no right to issue a license to begin after the expiration of their term of office, and that was all that was decided by the cases cited. In The Commissioners of Wilmington v. Roby, the Board of Commissioners passed an ordinance on the 2d of January, 1844, levying a tax of $25 on a certain class of persons. It was not pretended that this tax was not valid for one year, but it was sought to collect a tax under it for 1846. RuffiN, C. J., said: “The ordinance of January 2d, 1844, does not purport to extend to the year 1846, and, possibly, was not intended to operate beyond the year 1844. If, however, it was so intended, the commissioners exceeded their power, and for the excess, at all events, the ordinance was void.” In the case of The Commissioners of Raleigh v. Kane, under a law prohibiting the County Court of Wake from issuing license to retail spirituous liquors within the limits of the city of Raleigh, without the permission of the Board of Commissioners first had, the defendant procured a license, with the permission of the commissioners, to be issued at the February Term, 1854, of the County Court. He applied to the February Term, 1855, for a renewal of his license, under the permission of the board of commissioners granted in February, 1854. It was held, that the County Court at February Term, 1855, could not grant a license upon the permission of the Board of Commissioners of the city of Raleigh *428 granted in February, 1854, their authority having expired with their term of office. Battle, J., said: “ The license which the Court may grant, must be in force for a part, greater or less, of the time during which the members of the board, who gave the permission, are in office.” In this case, the Board of Commissioners of the town of Hendersonville, elected in May, 1883, issued to the defendant a license for one year, beginning the 1st of July, 1883, and ending the 1st of July, 1884. There is nothing in the cases cited to sustain the position that the board did not have the power to do so On the contrary, they are authority for the position that the board had the power. There was error. The plaintiff was entitled to judgment upon the facts found. Let this be certified. Error. Reversed.