Reeves Brothers, Inc. v. Town of Rutherfordton

MALLARD, Chief Judge. The only question for decision on appeal is whether or not the remedy of bringing an action under the Uniform Declaratory Judgment Act, seeking injunctive and other relief, was available to this plaintiff and therefore whether or not the trial court erred in dismissing its complaint pursuant to motion. G.S. 1A-1, Rule 57 provides: “The procedure for obtaining a declaratory judgment pursuant to article 26, chapter 1, General Statutes of North Carolina, shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a prompt hearing of an action for a declaratory judgment and may advance it on the calendar.” But as Professor James E. Sizemore notes in his article, General Scope and Philosophy of the New Rules, “The basic statutory provisions for obtaining declaratory judgments have been retained. Rule 57 simply provides that the procedure for this remedy shall be in accordance with the new Rules . . . .” (Emphasis original.) 5 Wake Forest Intra. Law Rev. 1 at 9, 10. We find nothing in the language of the Uniform Declaratory Judgment Act itself which would preclude the determination of the controversy before us by proceeding under the Act. See, e.g. G.S. 1-253 and G.S. 1-254. However, it is a well-settled rule in this State that: “Ordinarily, the rule that the sovereign may not be denied or delayed in the enforcement of its right to collect revenues applies to municipalities and every subdivision of state government, and when a tax is levied against a taxpayer he must pay same under protest and sue for recovery after he has exhausted all existing administrative remedies. [390] Bragg Development Co. v. Braxton, 239 N.C. 427, 79 S.E. 2d 918. G.S. 105-406 reads as follows: ‘Unless a tax or assessment, or some part thereof, be illegal or invalid, or be levied or assessed for an illegal or unauthorized purpose, no injunction shall be granted by any court or judge to restrain the collection thereof in whole or in part, nor to restrain the sale of any property for the nonpayment thereof; . . .’ (Emphasis ours.) This statute and our case law recognize a distinction between an erroneous tax and an illegal or invalid tax. An illegal or invalid tax results when the taxing body seeks to impose a tax without authority, as in cases where it is asserted that the rate is unconstitutional, Perry v. Commissioners of Franklin County, 148 N.C. 521, 62 S.E. 608, or that the subject is exempt from taxation, Southern Assembly v. Palmer, 166 N.C. 75, 82 S.E. 18. Injunction will lie when the tax or assessment is itself invalid or illegal. Purnell v. Page, 133 N.C. 125, 45 S.E. 534; Sherrod v. Dawson, 154 N.C. 525, 70 S.E. 739; Wynn v. Trustees of Charlotte Community College, 255 N.C. 594, 122 S.E. 2d 404. Here, the equitable remedy of injunction is proper since appellant contends that the taxing body is without authority to impose the tax because of the constitutional exemption.” Redevelopment Comm. v. Guilford County, 274 N.C. 585, 164 S.E. 2d 476 (1968). We note that G.S. 105-406 was repealed effective 1 July 1971. Therefore, even though the statute was in effect at the time the defendant Town of Rutherfordton notified the plaintiff of its intention to tax the “Grace Plant” other than in accordance with the purported agreement of 1966, it was not in effect at the time Judge Falls filed his judgment of 12 January 1972. We think, however, that the rule set forth in Redevelopment Comm. v. Guilford County, supra, is applicable in the case before us. See also, Development Co. v. Braxton, 239 N.C. 427, 79 S.E. 2d 918 (1954); Express Co. v. Charlotte, 186 N.C. 668, 120 S.E. 475 (1923); Carstarphen v. Plymouth, 186 N.C. 90, 118 S.E. 905 (1923) and G.S. 105-381. G.S. 105-381 and the cases decided under prior statutory provisions clearly provide that, except where it is sufficiently [391] alleged that the tax assessed is itself invalid or illegal, the taxpayer’s exclusive remedy is to pay the tax in full and then seek a refund of the excess portion. A tax or assessment is invalid or illegal only when the taxing body lacks the authority to impose the tax, as where the rate is unconstitutional or the subject is exempt from taxation. Redevelopment Comm. v. Guilford County, supra. Here, there is no allegation in the plaintiff’s complaint that the Town of Rutherfordton was without authority to levy the tax in question, that the rate was unconstitutional or that the subject property was exempt from taxation; therefore, we hold that plaintiff, not having paid the tax in question, was not entitled to seek a declaratory judgment and was not entitled to injunctive relief. For the foregoing reasons, we think that Judge Falls reached the correct conclusion in his judgment of 12 January 1972, and the judgment dismissing plaintiff’s action is affirmed. Affirmed. Judges Campbell and Britt concur.