In Re Homer Durant Truitt Ex Rel. Truitt

152 S.E.2d 74 (1967) 269 N.C. 249

In the Matter of Homer Durant TRUITT, a Minor, by and through his Mother, Nikka H. Truitt.
In the Matter of Darrell C. TRUITT.

No. 697.

Supreme Court of North Carolina.

January 20, 1967.

Smith, Moore, Smith, Schell & Hunter, by Bynum M. Hunter, Ralph Walker, Asst. Co. Atty., Greensboro, for appellant Guilford County, respondent.

Schoch, Schoch & Schoch, by Arch K. Schoch, Jr., High Point, for claimant appellee.

HIGGINS, Justice.

The General Assembly, by G.S. § 67-5, has provided every owner or keeper of a dog over six months of age shall pay an annual license or privilege tax of $1.00 or $2.00 depending on the sex of the dog. G.S. § 67-13 provides: "The money * * * shall be applied to the school funds * * *: Provided, it shall be the duty of the county commissioner * * * upon satisfactory proof of such injury, * * * including necessary treatment, if any, and all reasonable expenses incurred, * * * the said county commissioners shall order the same paid out of any moneys arising from the tax on dogs as provided for in this Article. * * *"

Of the several amendments to G.S. § 67-13, only Ch. 547, Session Laws of 1933, applicable to Forsyth and Guilford Counties, is material to the present controversy. This amendment gives a claimant the right of appeal from the Commissioners to the Superior Court, "as in cases of appeal from a Justice of the Peace." Hence the trial in the Superior Court is de novo and not on the record. Belk's Department Store v. Guilford County, 222 N.C. 441, 23 S.E.2d 897.

The dog tax is assigned to the county school fund: Provided, when complaint is made of injury to any person by any dog (including cost of treatment), and the amount of the damage is established in the manner provided by the Act, the county commissioners "shall order the same paid out of any moneys arising from the tax on dogs * * *" The meaning seems obvious that the school fund gets the dog tax subject to valid claims for injury and damage caused by dogs when the same have been established in the manner provided by the Act. Hence, the tax money is earmarked as the source, and the only source, out of which payment of claims may be made. Whether the injury was caused by a playful or an angry act on the part of the dog would be without significance. The injury was caused by the dog in either event.

A levy of a license or privilege tax on dogs has been held valid in many decisions of this Court: Mowery v. Town of Salisbury, 82 N.C. 175; Newell v. Green, 169 N.C. 462, 86 S.E. 291; Board of Commissioners of Stokes County v. George, 182 N.C. 414, 109 S.E. 77; McAlister v. Yancey County, 212 N.C. 208, 193 S.E. 141; White v. Holding (Commissioners of Johnston County), 217 N.C. 329, 7 S.E.2d 825. The taxing act having been held valid and its main objection being to create a fund to pay damage caused by dogs, is not the purpose valid? Any amount left over after the payment of damage claims which have been determined and satisfied shall go to the school fund. Since the levy for the stated purpose has been declared valid and not in contravention of the State Constitution, it seems clear the validity extends to the expenditure of the funds for the stated purpose. Constitutionality will be presumed until the contrary clearly appears. State ex rel. North Carolina Milk Commission v. Galloway, 249 N.C. 658, 107 S.E.2d 631.

A number of other states have passed acts levying a license tax on dogs for the benefit of a fund out of which to pay damages caused by dogs. All appear to have been held valid. McQueen v. Kittitas County, 115 Wash. 672, 198 P. 394; McGlone v. Womack, 129 Ky. 274, 111 S.W. 688, 17 L.R.A.,N.S., 855; Randall v. Patch, 118 Me. 303, 108 A. 97, 8 A.L.R. 65; Hofer v. Carson, 102 Or. 545, 203 P. 323; State v. Anderson, 144 Tenn. 564, 234 S.W. 768, 19 A.L.R. 180; Mountain Timber Co. v. State of Washington, 243 U.S. 219, 37 S. Ct. 260, 61 L. Ed. 685.

We call attention to the record which fails to show the legal authority by which the mother asserts the claim in behalf of the infant. Both parties, however, have treated the case on the theory that the parties are proper and the claim properly before the court. Morris v. Gentry, 89 N.C. 248. Of course the Board of Commissioners may pay the claim into court where it will be paid only on a showing of right to receive it. Payment of the infant's claim should be made to a duly appointed guardian.

No error.