In Re the Appeal of King

189 S.E.2d 158 (1972) 281 N.C. 533

In the Matter of The Appeal of W. E. KING et al.

No. 28.

Supreme Court of North Carolina.

June 16, 1972.

Keel & Lamar by James W. Keel, Jr., Rocky Mount, for Nash County.

Battle, Winslow, Scott & Wiley, P.A. by Robert M. Wiley, and Biggs, Meadows & Batts by Frank P. Meadows, Jr., Rocky Mount, for taxpayers.

Atty. Gen. Robert Morgan and George W. Boylan, Raleigh, Associate Atty., amicus curiae.

LAKE, Justice.

Appeal By The County

References herein to the General Statutes relate, both as to section number and as to content, to statutes in effect prior to the 1971 revision of the Machinery Act.

For purposes of taxation, all property, real and personal, is required to be appraised, as far as practicable, at its true value in money, which means the amount for which such property can be sold in the usual manner of sale. G.S. § 105-294. The date of valuation of the property here in question is 1 January 1969. G.S. § 105-278, G.S. § 105-280. In the case of farmland, the property to be appraised is the tract of land but, in making such appraisal, all of its attributes and appurtenant rights are to be considered, together with other factors which may affect its value. G.S. § 105-295. These include the allocations to such land of rights to produce thereon crops, the production of which is restricted by law. Thus, the tobacco and peanut allotments, held as incidents of the ownership of farmland in Nash County, are among the factors to be considered in appraising such land for ad valorem taxation.

The purpose of the statutory requirement that all property be appraised at its true value in money is to assure, as far as practicable, a distribution of the burden of taxation in proportion to the true values of the respective taxpayers' property holdings, whether they be rural or urban. It is the duty of the County Board of Equalization and Review, when so requested, to hear any taxpayer owning taxable property in the county with respect to the valuation of his property or of the property of others and to eliminate unlawful discriminations in the valuations of all properties in the county. G.S. § 105-327(g). If such taxpayer is aggrieved by the order of the County Board of Equalization and Review, he may appeal to the State Board of Assessment. G.S. § 105-329.

Upon such appeal, the State Board of Assessment "shall hear all the evidence or affidavits offered by the appellant, appellee, and the board of county commissioners, shall reduce, increase, or confirm the valuation fixed by the board of equalization and review and enter it accordingly, and shall deliver to the clerk of the board of county commissioners a certified copy of such order, which valuation shall be entered upon the fixed and permanent tax records and shall constitute the valuation for taxation." (Emphasis added.) G.S. § 105-329; King v. Baldwin, supra. The State Board of Assessment is given general supervisory power over the valuation and taxation of property throughout the State and authority to correct improper assessments. G.S. § 105-275.

Thus, upon appeal from the County Board of Equalization and Review, the State Board of Assessment has full authority to determine property valuations, including the standard uniform schedules of values required by G.S. § 105-295 to be used in the appraisal of real property within the county. Its orders with reference to such valuations and standards of value are final and conclusive, subject only to judicial review for errors of law or abuse of discretion. G.S. § 143-315; King v. Baldwin, supra; In Re Appeal of Reeves Broadcasting Corp., 273 N.C. 571, 160 S.E.2d 728.

The county assigns as error the overruling by the superior court of its several exceptions to the order of the State Board of Assessment. We have considered each of these and find therein no basis for reversal of the order of the Board, pursuant to G.S. § 143-315. No useful purpose would be served by a discussion of these exceptions individually.

Appeal By The Complaining Taxpayers

The general rule in this State is that, in the absence of statutory authority therefor, a court may not include an allowance of attorneys' fees as part of the costs recoverable by the successful party to an action or proceeding. Hoskins v. Hoskins, 259 N.C. 704, 131 S.E.2d 326; Rider v. Lenoir County, 238 N.C. 632, 78 S.E.2d 745; Horner v. Chamber of Commerce, 236 N.C. 96, 72 S.E.2d 21; Wachovia Bank & Trust Co. v. Schneider, 235 N.C. 446, 70 S.E.2d 578. G.S. § 6-21 and G.S. § 6-21.1 provide for the allowance for attorneys' fees as part of the costs in certain types of actions or proceedings. The present proceeding is not one of those.

The complaining taxpayers rely upon Horner v. Chamber of Commerce, supra. In that case, the plaintiff, a taxpayer of the City of Burlington, on behalf of himself and other taxpayers, brought suit to compel repayment to the city of funds unlawfully contributed by it to the Chamber of Commerce. The action was successful and the funds were repaid into the city treasury. This Court held that, under those circumstances, the superior court "has implied power in the exercise of a sound discretion to make a reasonable allowance, from the funds actually recovered, to be used as compensation for the plaintiff taxpayer's attorney fees." (Emphasis added.)

In Rider v. Lenoir County, supra, this Court, speaking through Justice Barnhill, later Chief Justice, concerning the decision in Horner v. Chamber of Commerce, supra, said:

"The rule as there stated comes to this: When, in an action instituted by a taxpayer to recover a fund which has been unlawfully or wrongfully expended by a municipality, it is made to appear that (1) the fund was in fact wrongfully expended, (2) the governing board of the municipality refused, on demand, to institute an action to recover the same, (3) as a result of which the taxpayer instituted his action to recover for the benefit of the citizens of the municipality, and (4) obtained judgment (5) which has been paid, in whole or in part, and the fund is thus restored to the public treasury, the court may allow plaintiff expense money to the extent of reasonable attorney fees, to be paid out of the fund so recovered." (Emphasis added.)

In the Horner Case, supra, the Court, speaking through Justice Johnson, said:

"[W]hile ordinarily attorney fees are taxable as costs only when expressly authorized by statute [citations omitted], nevertheless, the rule is well established that a court of equity, or a court in the exercise of equitable jurisdiction, may in its discretion, and without statutory authorization, order an allowance for attorney fees to a litigant who at his own expense has maintained a successful suit for the preservation, protection, or increase of a common fund or of common property, or who has created at his own expense or brought into court a fund which others may share with him. * * *

"This ``rule rests upon the ground that where one litigant has borne the burden and expense of the litigation that has inured to the benefit of others as well as to himself, those who have shared in its benefits should contribute to the expense.' 14 Am.Jur., Costs, Sec. 74." (Emphasis added.)

The present proceeding is clearly distinguishable from the Horner Case. First, in this matter no fund has been recovered for the benefit of the county. While the total valuation of taxable property in the county has been increased, this does not necessarily mean that more funds will be paid into the county treasury. The Board of County Commissioners may elect to reduce the tax rate. Presumably, this is the result which the complaining taxpayers hoped to achieve by this proceeding. Second, the proceeding has resulted in no benefits to a large segment of the taxpayers of Nash County, namely, the owners of farmlands. On the contrary, their taxes will be increased as a result of the complainants' victory in this proceeding. Those who will share in the benefits are the owners of urban property in the county. But they are not, as such, parties to this proceeding and to order the county to pay a fee to the complainants' attorneys as part of the court costs would impose the burden thereof not upon owners of urban property only but upon all taxpayers.

The denial of the motion for allowance of attorneys' fees was, therefore, proper.

Affirmed.

MOORE, J., did not participate in the consideration or decision of this case.