Tilghman v. West of New Bern Volunteer Fire Department

Court of Appeals of North Carolina

Tilghman v. West of New Bern Volunteer Fire Department

233 S.E.2d 598, 32 N.C. App. 767, 1977 N.C. App. LEXIS 2059

CourtCourt of Appeals of North Carolina

DecidedApril 6, 1977

DocketNo. 7610IC785

StatusPublished

Cited by1 cases

This text of 233 S.E.2d 598 (Tilghman v. West of New Bern Volunteer Fire Department) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Tilghman v. West of New Bern Volunteer Fire Department, 233 S.E.2d 598, 32 N.C. App. 767, 1977 N.C. App. LEXIS 2059 (N.C. Ct. App. 1977).

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Opinion

MARTIN, Judge.

The determinative question presented by this appeal is whether there was a contract between Craven County and the residents of West of New Bern Fire Protection District with regard to fire protection services.

The Full Commission seems to have held that when the Craven County Board of County Commissioners began levying and collecting taxes within the West of New Bern Fire Protection District, it entered into a contractual arrangement whereby the county agreed to provide adequate fire protection services to residents in the district in exchange for tax revenues to be assessed. Further, the Commission held that Craven County, through its Board of Commissioners, sublet its duty under such contract to provide fire protection to residents of the district when it entered into a contract with the West of New Bern Volunteer Fire Department.

The collection of taxes by Craven County at the instance of the residents and freeholders of the West of New Bern Fire District under authority granted by the legislature constituted the exercise of a public and governmental power and as such is not and cannot be the subject of a contract. Wagner v. Baltimore, 239 U.S. 207, 36 S.Ct. 66, 60 L.Ed. 230 (1915); Williamson v. New Jersey, 130 U.S. 189, 9 S.Ct. 453, 32 L.Ed. 915 (1889); Plant Food Co. v. Charlotte, 214 N.C. 518, 199 S.E. 712 (1938).

Since there could be no contract between the county and the voters of the fire district in the instant case, the relation[770]*770ship between the county and the fire department was not that of a principal contractor and subcontractor, and therefore G.S. 97-19 is not applicable. Green v. Spivey, 236 N.C. 435, 73 S.E. 2d 488 (1952).

We hold that there was no contractor-subcontractor relationship between Craven County and the West of New Bern Fire Department and therefore the opinion and award of the Industrial Commission holding Craven County liable for benefits are reversed.

Judges Morris and Vaughn concur.

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MARTIN, Judge.

The determinative question presented by this appeal is whether there was a contract between Craven County and the residents of West of New Bern Fire Protection District with regard to fire protection services.

The Full Commission seems to have held that when the Craven County Board of County Commissioners began levying and collecting taxes within the West of New Bern Fire Protection District, it entered into a contractual arrangement whereby the county agreed to provide adequate fire protection services to residents in the district in exchange for tax revenues to be assessed. Further, the Commission held that Craven County, through its Board of Commissioners, sublet its duty under such contract to provide fire protection to residents of the district when it entered into a contract with the West of New Bern Volunteer Fire Department.

The collection of taxes by Craven County at the instance of the residents and freeholders of the West of New Bern Fire District under authority granted by the legislature constituted the exercise of a public and governmental power and as such is not and cannot be the subject of a contract. Wagner v. Baltimore, 239 U.S. 207, 36 S.Ct. 66, 60 L.Ed. 230 (1915); Williamson v. New Jersey, 130 U.S. 189, 9 S.Ct. 453, 32 L.Ed. 915 (1889); Plant Food Co. v. Charlotte, 214 N.C. 518, 199 S.E. 712 (1938).

Since there could be no contract between the county and the voters of the fire district in the instant case, the relation[770]*770ship between the county and the fire department was not that of a principal contractor and subcontractor, and therefore G.S. 97-19 is not applicable. Green v. Spivey, 236 N.C. 435, 73 S.E. 2d 488 (1952).

We hold that there was no contractor-subcontractor relationship between Craven County and the West of New Bern Fire Department and therefore the opinion and award of the Industrial Commission holding Craven County liable for benefits are reversed.

Judges Morris and Vaughn concur.

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233 S.E.2d 598, 32 N.C. App. 767, 1977 N.C. App. LEXIS 2059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tilghman-v-west-of-new-bern-volunteer-fire-department-ncctapp-1977.

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