Henderson County v. . Smyth

5 S.E.2d 136, 216 N.C. 421, 1939 N.C. LEXIS 4

• Court: Supreme Court of North Carolina
• Decided: November 1, 1939
• Status: Published

Opinion

Winborne, J.

On this appeal two questions are presented for decision :

(1) Has the Superior Court jurisdiction of the subject matter of an action, the nature and purpose of which is to discover, to list and to assess for taxation property which has escaped taxation? (2) If not, may the action be dismissed after issuance of summons and before filing of complaint, when lack of jurisdiction is then apparent upon the face of the proceedings? The first is answered “No,” and the second “Yes.”

1. A defect of jurisdiction- exists where a Superior Court of general jurisdiction acts upon a subject which under the Constitution or laws of the State is “reserved to the exclusive consideration of a different judicial or political tribunal.” In such cases the exercise of power is usurpation. Burroughs v. McNeill, 22 N. C., 297.

Tbe Constitution of North Carolina vests tbe power to levy taxes exclusively in tbe legislative branch of tbe government. N. C. Const., Art. V. The decisions uniformly so bold. Russell v. Ayer, 120 N. C., 180, 27 S. E., 133; Lumber Co. v. Smith, 146 N. C., 199, 59 S. E., 653; Pullen v. Corp. Com., 152 N. C., 548, 68 S. E., 155; Person v. Watts, 184 N. C., 499, 115 S. E., 336; Person v. Doughton, 186 N. C., 723, 120 S. E., 481; Panic v. Doughton, 189 N. C., 50, 126 S. E., 176; Belk Bros. v. Maxwell, 215 N. C., 10, 200 S. E., 915.

In Person v. Doughton, supra, it is said: “Tbe judiciary is without power to levy assessments or to devise a scheme of taxation. . . . This is a legislative and not a judicial function.”

Applying these principles to tbe present case, it is apparent that tbe courts have no jurisdiction over an action which has for its purpose tbe discovery, listing and assessing property for taxation. For this purpose, under tbe Constitution, it is within tbe exclusive power of tbe Legislature to provide tbe method and prescribe tbe procedure.

Plaintiff, through allegations of a conspiracy to defraud tbe sovereignty, as set forth in motion for order for examination of defendants, seeks to maintain jurisdiction in tbe Superior Court. This position is untenable.

2. Tbe jurisdiction of a court over tbe subject matter of an action depends upon tbe authority granted to it by the Constitution and laws of tbe sovereignty, and is fundamental. McIntosh, P. & P., 7; Stafford v. Gallops, 123 N. C., 19, 31 S. E., 265. Objection to such jurisdiction may be made at any time during tbe progress of tbe action. This principle is enunciated in a long line of decisions in this State: Burroughs v. McNeill, supra; Branch v. Houston, 44 N. C., 85; Israel v. Ivey, 61 N. C., 551; S. v. Benthall, 82 N. C., 664; Noville v. Dew, 94 N. C., 43; Rogers v. Jenkins, 98 N. C., 129, 3 S. E., 821; S. v. Miller, 100 N. C., 543, 5 S. E., 925; Short v. Gill, 126 N. C., 803, 36 S. E., 336; Realty Co. v. Corpening, 147 N. C., 613, 61 S. E., 528; Provision Co. v. Daves, 190 N. C., 7, 128 S. E., 593; Dees v. Apple, 207 N. C., 763, 178 S. E., 557; Howard v. Coach Co., 211 N. C., 329, 190 S. E., 478.

In Burroughs v. McNeill, supra, it is stated: “Tbe instant that tbe court perceives that it is exercising, or is about to exercise, a forbidden or ungranted power, it ought to stay its action, and, if it does not, such action is, in law, a nullity.”

To like effect, in Branch v. Houstin, supra, Pearson, J., said: “If there be a defect, e.g., a total want of jurisdiction apparent upon tbe face of tbe proceedings, the court will of its own motion, 'stay, quash, or dismiss’ tbe suit. This is necessary to prevent tbe Court from being forced into an act of usurpation, and compelled to give a void judgment. . . . So, ex necessitate, tbe Court may, on plea, suggestion, motion, or ex mero moiu, where tbe defect of jurisdiction is apparent, stop tbe proceeding. Tidd, 516-960.”

Tbe motion of defendants to set aside tbe order for examination of defendants, and to dismiss tbe action for lack of jurisdiction of tbe subject matter, should have been allowed. To that end tbe case is remanded.

Reversed.