City of Wilmington v. Moore

86 S.E. 775, 170 N.C. 52, 1915 N.C. LEXIS 334

• Court: Supreme Court of North Carolina
• Decided: November 10, 1915
• Status: Published

Opinion

Hoke, J.,

after stating the case: The power of the General Assembly to enact legislation authorizing collection of back taxes and the right of the State and municipalities representing it to enforce collection by appropriate action in the courts, is fully established in this State. City of Wilmington v. Cronly, 122 N. C., p. 383; S. and Guilford Co. v. Ga. Co., 112 N. C., p. 34.

In the present case there was evidence tending to show that, under a special statute of the Legislature, passed for the purpose, the taxes were due and properly assessed; that same were imposed and that there was a lot of land within the city subject to a lien therefor. This being true, we see no reason why plaintiff should not be allowed to enforce collection by suit, not only under the general principles recognized and established in these decisions, but under provision of Eevisal, sec. 2866, expressly authorizing a suit of this character, in favor of State, county or other municipality, and also of private corporations and individuals holding certificates of purchase, etc.

There is nothing in the case of Berry v. Davis, 158 N. C., 170, that in any way militates against this position. In that case it was held that a sheriff or tax collector, having the tax list in his hands for collection, giving him present power to seize and sell property, could not bring claim and delivery for property before levy thereon; that, unless expressly authorized by statute, an executive officer must proceed to enforce collection by the ordinary methods of levy and sale.

Whether, in case of real estate, section 2866 should be construed and held to authorize a suit of foreclosure by a sheriff or tax collector, in the first instance, it is not necessary now to decide. It could well be shown that the distinction between suits by the State and municipalities, on the one hand, and tax collectors or executive officers, on the other, a distinction fully recognized in Berry’s case, supra, and in S. v. Ga. Co., supra, is based upon substantial reason, but the point is not presented in this appeal. The question is one entirely for legislative consideration, and the suit, as heretofore shown, is by the municipality, proceeding under express legislative sanction.

There was error in sustaining the demurrer, and this will be certified, that the trial of the cause may be proceeded with.

Eeversed.