Jones v. Commissioners

DEFENDANT^ APPEAL. Clase, O. J., after stating the case: The townships named in the act having, by the extra taxation they had imposed upon themselves, procured the building through their territory of the Cape Fear and Yadkin Valley Eailroad, now the property of the Southern Eailway Company, the General Assembly thought it just and equitable that the county taxes derived from such property in those townships should be expended exclusively in said townships “in repairing roads, building bridges, extending schools or such other purposes as the Commissioners may deem best,” until the amount so used in said townships should fully reimburse them for the amount paid out on subscriptions to aid in building said railroad. We know of no provision in the Constitution which disables the Legislature from passing such act. [64] Tbe defendant contends that tbe act interferes with tbe requirement of uniformity and equality of taxation. But there is no constitutional requirement that tbe tax rate for county purposes shall be tbe same everywhere. It varies in tbe different counties. Tbe rate of taxation may vary in different townships, parts of townships, districts, towns and cities in tbe same county, as where some have voted extra taxation for roads, fences, schools, etc., and in this very instance tbe taxes were higher a few years ago in those three townships, by reason of the tax to pay their railroad subscription- — an inequality for which this act seeks to reimburse them. In fact, the levy for county taxation is uniform throughout the county under this act, which is merely a legislative requirement of the appropriation of money raised from certain property taxes, in those townships, to certain public purposes therein, which the General Assembly thought just and proper. The act does not interfere with the constitutional provision appropriating the poll tax and fines, forfeitures and penalties. The defendant suggests, however, that it infringes upon the provisions of the Constitution “establishing counties and requiring them to be maintained in their integrity.” But we do not find any such provisions. The Constitution recognizes the existence of counties, townships, cities and towns as governmental agencies (White v. Commissioners, 90 N. C., 437), but they are all legislative creations and subject to be changed (Dare v. Currituck, 95 N. C., 189; Harris v. Wright, 121 N. C., 172), abolished (Mills v. Williams, 33 N. C., 558), or divided (McCormac v. Commissioners, 90 N. C., 441) at the will of the General Assembly. In Tate v. Commissioners, 122 N. C., 813, it is mentioned that the names of fourteen counties, formerly existing, have disappeared from the map of the State. Another (Polk) was once abolished and subsequently recreated. A case exactly in point with this is Clark v. Sheldon, 106 N. Y., 104, which held constitutional an act “directing and [65] providing for tbe application of taxes assessed upon any railroad in a town, city or village towards tbe redemption of bonds issued by tbe municipality to aid in tbe construction of sucb railroad,” and pointed out that this did not impose a tax upon property in other portions of tbe county for tbe benefit of any township, city or town, but simply appropriated tbe taxation upon sucb railroad property for tbe benefit of tbe municipality which bad incurred a burden to procure tbe building of such railroad. Tbe same view is upheld in Commissioners v. Lucas, 93 U. S., 108. It rested in tbe judgment of tbe General Assembly to direct tbe Commissioners of Stokes County to make this application of tbe county taxes derived from railroad property in those townships. Should this statute not meet tbe approval of subsequent Legislatures it can be repealed, but unless repealed it is tbe duty of tbe County Commissioners to obey it until, as provided therein, tbe townships named in section 1 shall be reimbursed in tbe manner stated. It was competent for these plaintiffs, tax-payers in said township, to bring this action, “tbe question being one of common or general interest” to all tbe tax-payers therein. Revisal, 411; Bronson v. Ins. Co., 85 N. C., 411; Thames v. Jordan, 97 N. C., 121; McMillan v. Reeves, 102 N. C., 550. Nor is there any statute of limitations. Tbe plaintiff is not seeking to recover a debt, nor even to compel tbe County Commissioners to account for tbe taxes heretofore collected on railroad property in said townships, but tbe relief sought is prospective, to require compliance with the statute in future. It imposes a continuing duty until it shall be complied with or repealed. No Error. PLAINTIEP's APPEAL. Clare, C. L. Section 2 of tbe act requires tbe County Commissioners to invest each year, in interest-bearing securi [66] ties, tbe county taxes derived from tbe taxation of tbe property of tbe Norfolk and Western Railroad Company in Sauratown Township, as a sinking fund for tbe payment, at maturity, of tbe bonds issued by said township to aid in building said railroad (after first deducting thereout enough to pay tbe current interest). As tbe bonds of said township have been paid off, there is no sinking fund required to pay tbe bonds, and tbe mandamus in this regard was properly refused. It would have been otherwise if this section bad, like section 1, required tbe reimbursement of that township by disbursing tbe taxation, derived from said railroad, for roads, schools, etc., in tbe townships named. Whether it shall be so amended is a matter for tbe Legislature. Tbe statute does not now so require. No Error.