Barber v. Town of Benson

158 S.E. 245, 200 N.C. 683, 1931 N.C. LEXIS 412

• Court: Supreme Court of North Carolina
• Decided: April 29, 1931
• Status: Published

Opinion

Beogden, J.

The pleadings and the judgment produce the following question of law: Was it the duty of plaintiffs to pay the tax under protest and sue to recover same, or was injunction an available remedy?

C. S., 7971(56) provides in part, “for the purpose of assessing property and collecting taxes. Copartnership shall be treated as an individual and property shall be listed in the name of the firm. A copart-nership shall be deemed to reside in the township, town or city where its business is principally carried on. Each partner shall be liable for the whole tax.”

The plaintiffs contend that injunction was the proper remedy to pursue, and the defendant, upon the other hand, contends that plaintiffs were required to pay the tax under protest and sue for recovery. The contentions so made may be solved by an application of the principle announced in Sherrod v. Dawson, 154 N. C., 525, or Ragan v. Doughton, 192 N. C., 500.

Personal property ordinarily follows the person, but our statute above referred to provides that the situs of partnership property is the place “where its business is principally carried on.” Referring to the taxing of solvent credits, the Court in Sherrod v. Dawson, supra, said: “Property of this character is subject to taxation only where the true owner resides. The legality of either tax can only be determined when the residence of the real owner shall be ascertained and fixed by the jury.” All authorities agree that an injunction will lie to restrain the collection of a tax “if the tax itself be illegal or invalid.” Therefore, the ruling of the Court in the Sheirod case relates the legality of the tax to the residence of the real owner and would seem to be determinative of the legal question involved in this case.

The Bagan case, supra, proceeds upon the theory that the taxpayer had no basis for resisting the payment of the tax except upon the ground that he did not come within the class taxed, and hence ordinarily “in the absence of circumstances sufficient to invoke the aid of a court of equity, his remedy ... is paying it under protest and then suing to recover it hack.” Conceding, then, that the Bagan case applies, are there any circumstances in the case at bar “sufficient to invoke the aid of a court of equity?”

It was alleged that in 1928 the defendant town levied a tax upon the personal property of plaintiffs and that upon protest the defendant annulled the assessment and made no further demand until 1930, when the defendant then undertook to compel the plaintiffs to pay back taxes for a period of five years.

Under such circumstances, the Court is of the opinion that there are facts sufficient to support the intervention of a court of equity, and hence the judgment dissolving the injunction is

Reversed.