Bragg Development Co. v. Braxton , 239 N.C. 427 ( 1954 )

79 S.E.2d 918 (1954) 239 N.C. 427

BRAGG DEVELOPMENT CO., Inc.
v.
BRAXTON et al.

No. 672.

Supreme Court of North Carolina.

January 29, 1954.

Poyner, Geraghty & Harts field, Raleigh, Taylor & Allen, Goldsboro, and Hoyle & Hoyle, Greensboro, for plaintiff.

Lester G. Carter, Jr., James MacRae, and Robert H. Dye, Fayetteville, for defendant.

BARNHILL, Justice.

This cause must be remanded to the court below with direction that the court enter a judgment of dismissal for two reasons: (1) It presents no litigable question for decision; and (2) in any event it is not the proper method of determining plaintiff's tax liability to the defendant County.

"The subject of a civil action" as used in the statute, G.S. § 1-250, is a cause of action. The stipulated facts must present a controversy which could be litigated and upon which the court could enter judgment in an action pending. In adopting the statute, the Legislature did not intend to confer jurisdiction on the courts to render advisory opinions. Wright v. McGee, 206 N.C. 52, 173 S.E. 31; Burton v. Durham Realty & Ins. Co., 188 N.C. 473, 125 S.E. 3.

Here the facts agreed do not set forth a "question in difference which might be the subject of a civil action." The defendant County has made no assessment. Neither has it levied upon this or any other property of plaintiff in an attempt to collect a tax on the property involved. No right of plaintiff has been denied or violated. It has suffered no wrong. It has sustained no loss either real or imaginary. On the facts agreed no justiciable question on which the court, in a civil action, could render a judgment is disclosed.

Does the County have the right to tax the property of plaintiff which is located on the Fort Bragg Military Reservation? The County asserts this right. Plaintiff denies that it exists. The controversy thus created presents a purely abstract question. Any judgment putting it to rest would be wholly advisory in nature.

Ordinarily the sovereign may not be denied or delayed in the enforcement of its right to collect the revenue upon which its very existence depends. This rule applies to municipalities and other subdivisions of the State Government. If a tax is levied against a taxpayer which he deems unauthorized or unlawful, he must pay the same under protest and then sue for its recovery. G.S. § 105-406; Hunt v. Cooper, 194 N.C. 265, 139 S.E. 446. And if the statute provides an administrative remedy, he must first exhaust that remedy before resorting to the courts for relief. Prudential Ins. Co. v. Powell, 217 N.C. 495, 8 S.E.2d 619; Unemployment Compensation Comm. v. J. M. Willis Barber & Beauty Shop, 219 N.C. 709, 15 S.E.2d 4; State ex rel. Employment Security Comm. v. Kermon, 232 N.C. 342, 60 S.E.2d 580. See however G.S. § 105-406 relating to illegal property taxes.

As broad and comprehensive as it is, even the Declaratory Judgment Act does not supersede the rule or provide an additional or concurrent remedy. Prudential Ins. Co. v. Powell, supra; Buchan v. Shaw, Com'r of Revenue, 238 N.C. 522, 78 S.E.2d 317.

Appeal dismissed.