Casualty Co. v. . Comrs. of Saluda

199 S.E. 7, 214 N.C. 235, 1938 N.C. LEXIS 310

• Court: Supreme Court of North Carolina
• Decided: October 12, 1938
• Status: Published

Opinion

Seawell, J.

From early times in this State, and generally elsewhere, mandamus has been recognized as a proper proceeding to compel a levy of tax to pay a judgment against a municipality. Gooch v. Gregory, 65 N. C., 142; Lutterloh v. Comrs., 65 N. C., 403; Allen v. Drainage Comrs., 175 N. C., 190, 95 S. E., 170.

In fact, it is often the only remedy, since the property of a municipality necessary to carry on government is not subject to execution. Hardware Co. v. Schools, 151 N. C., 507, 66 S. E., 583; Brockenbrough v. Comrs., 134 N. C., 1, 46 S. E., 28; Weber v. Lee County, 73 U. S., 210, 18 L. Ed., 781. Formerly, the writ was available to compel the levy of taxes to pay the principal and interest on bonds and liabilities arising ex contractu, which had not been reduced to judgment. Pegram v. Comrs., 64 N. C., 557; Leach v. Comrs., 84 N. C., 829; Comrs. v. MacDonald, 148 N. C., 125, 61 S. E., 643; Spitzer v. Comrs., 188 N. C., 30, 123 S. E., 636. Chapter 349, Public Laws of 1933, amended C. S., 867, relating to mandamus proceedings to enforce a money demand, by providing, among other things, that the petitioner must show that the claim has been reduced to judgment. Michie’s Code, 1935, section 867. With this distinction, the principles involved in all the cited cases are the same, and they are pertinent to this discussion.

Settled authority and precedent in the use of mandamus to enforce a money demand so limit the jurisdiction and discretion of the court as to preclude a favorable consideration of many of the matters urged upon us as equitable defenses in the case at bar, and which seem to have had an influence in the decision of this ease in the trial court.

Such proceedings are not proceedings in equity. Walkley v. Muscatine, 6 Wall. (U. S.), 481; Thompson v. Allen County, 115 U. S., 550. Under our own practice, mandamus is put to statutory uses, and both by custom and authority has been deprived of much of its common law character. The writ is no longer, as at common law, a high prerogative writ; Belmont v. Reilly, 71 N. C., 260; Burton v. Furman, 115 N. C., 166, 168, 20 S. E., 443; and the court has no discretion to refuse it when it is sought to enforce a clear legal right to which it is appropriate. Hammond v. Charlotte, 206 N. C., 605, 175 S. E., 148; Hickory v. Catawba County, 206 N. C., 165, 173 S. E., 56; Braddy v. Winston-Salem, 201 N. C., 301, 159 S. E., 310; Cody v. Barrett, 200 N. C., 43, 156 S. E., 146; Hayes v. Benton, 193 N. C., 379, 137 S. E., 169; Person v. Watts, 184 N. C., 499, 115 S. E., 336. Mandamus is as much an instrument of enforcement at law as it is an aid in equity, and, as sought here, may be considered the equivalent of execution. Bear v. Comrs., 124 N. C., 204, 210, 32 S. E., 558; United States v. Oswego, 28 Fed., 55; Chicago v. Hasley, 25 Ill., 595.

Inhibitions against its use will be found to arise more out of the nature of the subjects to which it is applied, and the powers and functions of officers upon which it is intended to operate, rather than anything inherent in the writ. Of course, it will not issue to require a levy of taxes beyond the constitutional or statutory limitations, where such limitations exist; and even within these limits it may be accepted as established law that private right must be subordinated to public necessity in the sense that needs of government, economically administered, have a prior demand on the proceeds of taxation. Cromartie v. Comrs. of Bladen, 85 N. C., 211. So the writ will not be issued when the effect will be to divert the funds from necessary governmental uses to the satisfaction of a private claim. But such diversion must appear as the immediate consequence of exhaustion of revenues available for governmental purposes and of the power to tax. The Court cannot consider speculative consequences, to be brought about by an increased burden of taxation, the difficulty of collecting the taxes and consequent foreclosure, and the diminution of tax revenues from similar causes which eventually might come about and defeat government. "Where there is a margin between the needs of government, as above defined, and the limit of authority to levy the tax, there seems to be no question that the writ must issue. Cromartie v. Comrs. of Bladen, supra.

We have no definite classification as to the kind of service a municipality may furnish its citizens to the postponement or defeat of its obligations to creditors. In Cromartie v. Comrs. of Bladen, supra, there is more than a suggestion that such classification may not he made arbitrarily, at the pleasure of the commissioners or governing body of the municipality, and in the exercise of an unreviewable discretion. But it is not necessary to decide that matter at this time, however interesting it may be in its relation to the facts in the record.

In passing on plaintiff’s right to the writ of mandamus, the Court must be guided by the principles above enunciated, and not by general rules which it might call to its aid in a distinctly equitable proceeding.

It follows that mere amelioration of the burden of taxation is not a proper consideration. The unfortunate condition of the town in that respect might possibly have been foreseen and prevented, since it is difficult to see how a town of 558 inhabitants could incur a bonded debt of $330,000 without the sanction of its citizens at the polls.

Nor have we any discretion to refuse the writ on the ground that it might work a preference of plaintiff’s claim over those of other creditors. Whatever preference may ensue upon the issuance of the writ began when plaintiff brought suit on its claim, and may be referred to its more diligent resort to a remedy open to all creditors alike.

It does not affirmatively appear in tbe record or in tbe findings of fact that in providing for tbe needs of government tbe commissioners of tbe town bave reached tbe limit of tbeir authority to levy taxes, and we think there was error in refusing tbe writ.

Tbe judgment is

Reversed.