City of Wilmington v. Cronly ( 1898 )

PLAINTIFF'S APPEAL. FAIRCLOTH, C. J., and FURCHES, J., dissent. The facts are stated in the opinion in the defendant's appeal in this case. Only two exceptions are presented in this appeal:

1. The Court refused to permit the collection of unpaid taxes for any year more than ten years before the bringing of this action. This was error, as stated in the opinion in the defendant's appeal. Jones v.Arrington, 94 N.C. 541. No statute of limitations runs against the sovereign unless it is expressly named therein. This is (390) immemorial law, based on reasons of public policy, which has been observed by all governments.

2. The second exception is that the Court did not allow 10 per cent interest, which was allowed the city on delinquent taxes by the act of 1859, nor 8 per cent as authorized by the act of 1876-7, but those statutes only allowed collection of arrearages for three years, and besides they have been abrogated by the subsequent charter of the city. The present statute is not a re-enactment of that clause of the charter of 1859, nor of that clause of the act of 1876-7, nor is it a mere removal of the statute of limitations from the right given by those repealed statutes, but it is an independent statute, in the exercise of the sovereign power, authorizing in the mode therein pointed out the collection, by the State, county and city, of the public dues of those who have evaded payment thereof. Such power is inherent, is just, and its exercise is authorized by a long series of statutes and decisions, as shown in the opinion in the defendant's appeal herein.

The right to collect these arrearages of taxes exists solely by virtue of the act of 1895, the former act having been repealed, besides the right therein given has expired by its terms, and the measure of such collection, prescribed by the act of 1895, is the amount of "delinquent taxes, interest and penalties." The word "interest," standing alone in the act without naming the rate, means 6 per cent, and his Honor committed no error in thus restricting the recovery.

The defendant moved in this Court, for the first time, to dismiss the plaintiff's appeal, because (unlike the taxes covered by defendant's appeal) no judgment had been obtained and the statute had been repealed, since the trial, by ch. 517, Laws 1897, ratified on 9 March, 1897. But the Code, sec. 3764, provides "the repeal of a statute shall not affect any action brought before the repeal for any forfeiture incurred or for the recovery of any rights accruing under such statute."

(391) Here, the action, having been brought before the repealing statute was enacted, is plainly not affected by it. If the Legislature had meant otherwise, it would have inserted, as it always does when such is the intent, the words "and this shall apply to pending suits." Not having done so, this action falls under the protection of the general law that a repealing statute does not affect suits already brought. In Wikel v.Commissioners, 120 N.C. 451, the plaintiff had no accrued interest except as to costs, and it was held that he could not be deprived of that by the repealing statute. The defendant argued strenously [strenuously] that the right to collect back taxes accrued under the acts of 1859 and 1876, and that the act of 1895 merely removed the bar of the statute of limitations. If this were true it could not alter the result whether the action had already been brought on a right accrued under the act of 1895, when the repealing statute was passed independently or was a former right renewed by the act of 1895, or was an independent right conferred by the act of 1895. In fact, however, it is the latter, for as we said in Jones v. Arrington, 91 N.C. 125 (at p. 130), an act to collect arrearages of taxes is "not an enactment that attempts to revive a demand that has been barred by the statute of limitations, which would be repugnant to the Constitution of the United States, as was recently declared in Whitehurst v. Dey, 90 N.C. 542." The act of 1895 is the act of the sovereign directing the collection of taxes for the years in which the delinquent's property has not paid it quota, as required by law, to the support of the public burdens and providing procedure by which that quota may be ascertained, giving the alleged delinquents a hearing, and providing further that the total amount of the delinquency so ascertained may be declared a lien on the (392) property which the defendant had at its passage, and that it may be sold as under foreclosure. Thus no question under this statute can arise as to liens for taxes upon property which the delinquent has sold off before the passage of the act.

The same right to collect arrearages of taxes is generally recognized. "Unless there be some constitutional restriction the Legislature may authorize a municipality to levy and collect retrospective taxes, and for this purpose use the assessment roll of a previous year." 2 Dil. Mun. Corp. (4 Ed.), 751. There is no hardship in this proceeding. It is essentially just. It merely compels taxpayers who have evaded their share of the public burdens to fulfill their duty, and to that extent relieves those who have faithfully borne the heat and burdens of the day and will discourage like evasions in the future. The Legislature in repealing the act of 1895 did not think proper to make the repeal apply to "actions already brought," and the courts cannot do it even if there had been any equity in doing so. The only inequality that can be complained of is that the repealing statute protects to that extent the delinquents against whom no action had been instituted. In sustaining the statute of limitations there was

Error.