Reynolds v. City of Asheville

154 S.E. 85, 199 N.C. 212, 1930 N.C. LEXIS 89

• Court: Supreme Court of North Carolina
• Decided: July 2, 1930
• Status: Published

Opinions

Stacy, C. J:

The appropriateness of the proceeding, to test by injunction the validity of the alleged illegal tax, is asserted in R. R. v. Commissioners, 188 N. C., 265, 124 S. E., 560.

There was some confusion in the law as it existed in 1929 as to whether the lien of State, county and municipal taxes attached annually on tbe first day of May, tbe date of listing, or on the first day of June. C. S., 2815 and 7987; Chemical Co. v. Brock, 198 N. C., 342; Shaffner v. Lipinsky, 194 N. C., 1, 138 S. E., 418; Carstarphen v. Plymouth, 186 N. C., 90, 118 S. E., 905. But however this may have been, it certainly attached annually under the general law, as then written, prior to 30 June, and we find nothing in the local statutes to take the present case out of the general class. Hence, it would seem that as plaintiff’s property was not within the corporate limits of the city of Asheville on 1 May or 1 June, 1929, it was not subject to an ad valorem tax levied by said municipality for the fiscal year 1929. Shaffner v. Lipinsky, supra.

The decision in Harrington v. Comrs., 189 N. C., 572, 127 S. E., 577, strongly relied upon by the defendants, is not at variance with this position, for the Harrington case was controlled by other statutes and other laws.

It appears that at least six courts have considered similar questions, arising under slightly different laws and different fact situations, two upholding such taxes (Johnston v. Huntington, 71 W. Va., 106, 76 S. E., 142; City of Westport v. McGhee, 28 Mo., 152, 30 S. W., 523), and four deciding against their validity (Detroit Trust Co. v. Detroit, 248 Mich., 612, 227 N. W., 715; City of Gulfport v. Todd, 92 Miss., 428, 46 So., 541; Chattanooga v. Raulston, 117 Tenn., 569, 97 S. E., 456; Austin v. Butler, 40 S. W. (Tex. Civ. App), 340).

The rationale of our own decisions would seem to point in the direction of the majority. Wachovia Bank & Trust Co. v. Nash County, 196 N. C., 704, 146 S. E., 861. Had the plaintiff been a nonresident of the State prior to 1 May, 1929, and on 30 June thereafter moved to Asheville, bringing property with him, the State would not have taxed the property, thus initially brought within its borders, for the year 1929, and it is not to be supposed, in the absence of specific legislative authority, that a municipality may do what the State itself does not do. City of Gulfport v. Todd, supra.

The Legislature, of course, may confer power on a municipality to fix its tax year at dates different from those fixed by the general law, but that is not the question here presented. Chattanooga v. Raulston, supra. We are construing the pertinent local and general statutes as they were written in 1929. The correct judgment was entered in the court below.

Affirmed.