Bragg Development Co. v. Braxton

79 S.E.2d 918, 239 N.C. 427, 1954 N.C. LEXIS 376

• Court: Supreme Court of North Carolina
• Decided: January 29, 1954
• Docket: 672
• Status: Published

Opinion

Barnhill, J.

This cause must be remanded to the court below with direction that the court enter a judgment of dismissal for two reasons: (1) It presents no litigable question for decision; and (2) in any event it is not the proper method of determining plaintiff’s tax liability to the defendant County.

“The subject of a civil action” as used in the statute, G.S. 1-250, is a cause of action. Tbe stipulated facts must present a controversy which could be litigated and upon wbicb tbe court could enter judgment in an action pending. In adopting tbe statute, the Legislature did not intend to confer jurisdiction on the courts to render advisory opinions. Wright v. McGee, 206 N.C. 52, 173 S.E. 31; Burton v. Realty Co., 188 N.C. 473, 125 S.E. 3.

Here tbe facts agreed do not set forth a “question in difference wbicb might be tbe subject of a civil action.” Tbe defendant County has made no assessment. Neither has it levied upon this or any other property of plaintiff in an attempt to collect a tax on the property involved. No right of plaintiff has been denied or violated. It has suffered no wrong. It has sustained no loss either real or imaginary. On tbe facts agreed no justiciable question on wbicb tbe court; in a civil action, could render a judgment is disclosed.

Does tbe County have tbe right to tax tbe property of plaintiff wbicb is located on tbe Fort Bragg Military Reservation? Tbe County asserts this right. Plaintiff denies that it exists. Tbe controversy thus created presents a purely abstract question. Any judgment putting it to rest would be wholly advisory in nature.

Ordinarily the sovereign may not be denied or delayed in the enforcement of its right to collect the revenue upon wbicb its very existence depends. This rule applies to municipalities and other subdivisions of the State Government. If a tax is levied against a taxpayer wbicb be deems unauthorized or unlawful, be must pay the same under protest and then sue for its recovery. G.S. 105-406; Hunt v. Cooper, 194 N.C. 265, 139 S.E. 446. And if the statute provides an administrative remedy, be must first exhaust that remedy before resorting to the courts for relief. Insurance Co. v. Unemployment Compensation Com., 217 N.C. 495, 8 S.E. 2d 619; Unemployment Compensation Com. v. Willis, 219 N.C. 709, 15 S.E. 2d 4; Employment Security Com. v. Kermon, 232 N.C. 342, 60 S.E. 2d 580. See, however, G.S. 105-406 relating to illegal property taxes.

As broad and comprehensive as it is, even the Declaratory Judgment Act does not supersede the rule or provide an additional or concurrent remedy. Insurance Co. v. Unemployment Compensation Com., supra; Buchan v. Shaw, Comr. of Revenue, 238 N.C. 522.

Appeal dismissed.