City of Wilmington v. James Sprunt & Son , 114 N.C. 310 ( 1894 )

That Reilly Burnett is a taxpayer of the city of Wilmington and owes poll tax to said city for the year 1893 in the sum of $2.25; that the defendants are indebted to said Burnett in the sum of $14, money due before the end of the calendar year 1893 for wages as a laborer; that the tax collector of said city can find no other property of said Burnett's sufficient to pay said tax; that Owen Fennell, the tax collector of said city, served upon the said James Sprunt and W. H. Sprunt the attachment found in the record, to attach any debt due or that might become due before the end of the calendar year 1893, by them to said Burnett.

After arguments by counsel the court gave judgment for the plaintiff, and defendants appealed. The charter of Wilmington (Laws 1876-77, ch. 192) provides (sec. 9): "The officer charged with the duty of collecting taxes shall have all the powers vested by law in sheriffs or tax collectors for the collection of taxes due the State. The sheriff has the power to collect taxes due the State and county by garnisheeing any one indebted to the delinquent taxpayer when no tangible property of the latter can be found sufficient to satisfy said taxes." Laws 1893. ch. 296, sec. 1. Therefore the collector of city taxes has the same power. Quod erat demonstrandum.

The defendants contend that when the city charter was granted in 1876-77 the sheriffs had the power to garnishee debts due to the delinquent only for nonpayment of poll tax. This was extended (312) by Laws 1887, ch. 137, sec. 1, to give the sheriff the right of garnishment of all taxes. This provision has been continued in all the revenue acts since. The grant of the same authority to the city tax collector as is posessed [possessed] by the sheriff in collecting taxes provides for a continual conformity as the general law is from time to time modified. As was said by Smith, C. J., in construing an exactly similar provision, "The required conformity of procedure on the part of the town officer to that prescribed for the sheriff was a continual conformity, allowing any statutory changes made as far as practicable. The mandate is to the officer to pursue that course prescribed for the sheriff in his office of collector, not only as the law then was, but as it might be amended thereafter." Hill v. Nicholson, 92 N.C. 24, 28. And this seems to be the uniform rule. 2 Dillon Mun. Corp., sec. 772, and notes; 1 Desty Tax., 475, 476; Am. Co. v. Buffalo, 20 N.Y. 388.

Nor can it be said that the taxpayer is deprived by the garnishment of "due process of law." He is fixed with legal notice by listing his taxes; he has had opportunity to have the amount, if erroneous, or the valuation, if excessive, reduced. He has had his "day in court." The tax list in the hands of the officer is a judgment and execution. Laws 1893, ch. 296, sec. 30; Guilford v. Georgia Co., 112 N.C. 37. Besides, this objection could only have been raised by the delinquent taxpayer for himself by proper proceedings and not by the defendant, who has been duly served with notice as provided by law. There is no exemption of any property whatever from the payment of taxes. Const., Art. X, sec. 1; Tucker v. Tucker, 108 N.C. 235. The exemptions allowed to the judgment debtor by The Code, sec. 493, apply only as to proceedings (313) on judgments for private debts and not to taxes. Even in those cases whether notice shall be given the judgment debtor rests "in the discretion" of the court. The Code, sec. 490.

No error.

Cited: Wright v. R. R., 141 N.C. 168.