Mauney v. Board of Commissioners

71 N.C. 486

• Court: Supreme Court of North Carolina
• Decided: June 15, 1874
• Status: Published

Opinion

Settle, J.

I am of opinion with his Honor Judge Buxton, and for the reasons given by him, which I will not repeat, as the reporter will set them, that his Honor Judge Tourgee had no power to issue the restraining order mentioned in the pleadings.

But as my associates are of a different opinion, the Court holds, that the power does exist, under section 188 of the Code of Civil Procedure, and the argument of public convenience is also invoked in aid of this construction.

But practically, in this case, the exception amounts to nothing, for while an injunction by order may be made by any Judge of a Superior Court, yet it is conceded that the Judge of a district, and he alone, has authority to vacate or modify injunctions in causes pending in his own district; saving of course the exceptions which arise upon an exchange of districts, special terms, &c. Bear v. Cohen, 65 N. C. Rep., 511. Therefore the exception to the mere fact that his Honor modified the restraining order of Judge Tourgee cannot be maintained.

Let us now look to the order of Judge Buxton, which must stand or fall by itself.

1. We affirm his ruling in respect to what is called the novation of the old debt. Not to do so would be to adopt the absurdity that so long as one chooses to hold an old debt, it is better than a new debt, but the moment he tries to collect it, and gets a judgment, it becomes a new debt, no better than other new debts.

This idea, for reducing old indebtedness to the level of the new is at least entitled to the merit of novelty.

2. Have Couuty Commissioners power to assess, levy, and collect taxes more than once in a year ? “ All taxes shall be levied at their regular meeting, on the first Monday of February.” Bat. Rev., chap. 27, sec. 8, (1.)

The fact that a writ of mandamus had issued against the commissioners, commanding them to assess, levy and collect taxes, sufficient to pay off the indebtedness of the county, could not warrant them in levying taxes in any other manner, or at any other time than is prescribed by law. The mandamus. must be understood to mean that they shall levy and collect, according to the general law governing the subject.

8. We concur in his Honor’s views as to the constituí'onal limitation and equation of taxation to be applied to the different orders of debt.

They may be disregarded as to old indebtedness, but must be applied to the new.

So many cases involving the determination of these questions have been before this Court since the adoption of our present Constitution, that we do not feel called upon to discuss the matter further.

This disposes of all the exceptions presented by the record'. Let this opinion be certified, &c. Modified and remanded.

Pee Cueiam, Judgment accordingly.