*1 m N. O.] V. INSURANCE CO. MECKLENBURG COUNTY COMMIS COUNTY OF and THE BOARD MECKLENBURG COUNTY OF FIRE IN v. PIEDMONT SIONERS FOR MECKLENBURG COUNTY COMPANY, SURANCE Corporation. May, 1936.) (Filed 20 company City in the
1. Taxation insurance B held d— county county. exempt from taxation county sought credits Plaintiff for ad valorem taxation solvent and list municipality by a another principal place owned certain bonds issued having company a the administrative of business in domestic insurance county. municipality as an Held: were Thе bonds equipment provide schoolhouses and State to I, term, Constitution, Art. to the constitutional school IX, public purpose, 27, 1, statute and for a and sec. exempting Art. sec. Code, taxation, (19), at in effect such bonds from C. Legislature valid, issued, and the time the bonds were having is constitutional exemp- given authority by Y, 5, Art. such sec. VII, 9, taxation, Y, since the tion from ad valorem sec. Art. bonds, although property private corporation, for a of a statutory upon necessary public purpose provision purchased in reliance and footing exempting stand the same them from buildings proceeds of the bonds. as the school erected with the A e— Statutes plainly and A will be declared unconstitutional unless it is statute constitutionality. clearly so, will in favor of doubt be resolved concurring J., in result. Devin, Shaw,
Appeal Emergency Judge, December, plaintiffs Mecklenburg. Affirmed. Superior Extra Term facts: following agreed Tbe tbe is and was all times “1. Tbe Piedmont Eire Insurance duly chartered, organized, hereinafter a corporation, mentioned laws North Carolina, virtue of tbe State of existing of business principal place Charlotte, State of North Carolina. Mecklenburg, a political
“2. Mecklenburg County That subdivision That J. corporate. Hunter, and a B. H. body W. Dunn, R. E. and A. H. Wearn Harkey, Cashion, duly A. D. members of the board of commissioners qualified, acting elected, assess and as such have the county, said located said county lawfully taxation.
“3. the tax return date the Piedmont Eirе Insurance That on held certain bonds issued by of Winston- Company owned V.
MECKLENBURG COUNTY CO. INSURANCE *2 on Salem 13 said May, 1929, $107,285, amounts tbe aggregating bonds being hereinafter referred to.
“4. at That of the time the aforesaid bonds were issued the mentioned, at the time and at times herein the of Winston-Salem of was one the of the State of municipalities North Carolina, located in Forsyth County.
“5. That the bonds herein referred an to were issued pursuant duly ordinance of adopted by the of board aldermen Winston- 20 on Salem, January, 1928, calling special purpose election of voting upon ordinance the issuance bonds for authorizing for school $2,500,000 that election purposes; duly the 6 March, 1928; that the said ordinance was that said duly approved; the thereafter pursuant were to Municipal Act of Finance the State of North Carolina 'for purpose constructing, of acquiring, reconstructing, enlarging public and school buildings’; that the records required by section chapter Public Laws of North Caro lina for year duly were filed connection with the issuance of bonds; the said that the Private Laws of the North Carolina for the year 1927, chapter with; amended, duly complied proceeds and that sale the above bonds purchase land and erect junior high two schools, enlargement and equipment of five school to erect one new buildings, elementary school and one Negro high school, the extension of school grounds city Winston-Salem, North Carolina, photostatiс said copy marked 'Exhibit A, being hereto attached a part hereof, and made all of the bonds that were owned by the Pied mont Fire Insurance first Company, above mentioned, being similar in all of which respects copy bond as to attached, except the amounts maturities of the same.
"6. That the Piedmont Fire Insurance did not Company list above mentionеd bonds owned for ad valorem in Mecklenburg County; that thereafter Mecklen- elected burg, duly qualified commissioners, board of through listed the said bonds assessed the same taxation against Fire Insurance Company, Piedmont notwithstanding objection made the Piedmont Insurance thereupon the time Fire Company; Piedmont Insurance Company gave Fire notice aрpeal, filed all as bond, required law and in accordance the stat- pertaining thereto, appealed utes from the listing and assessment of Mecklenburg, acting through made duly elected in connection with of commissioners the said bonds board to the Superior Carolina. Mecklenburg County, North N. 0.] County Insurance to tbis parties between agreed by
“7. is stipulated this with and complied formalities have legal that all action adjudication. the court case is before properly OB' THE PARTIES. “CONTENTION aforesaid that the contends Piedmont Eire North Mecklenburg County, ad valorem taxes bonds are from such same and contends Carolina, the Consolidated (19) and more law, particularly by following personal ‘The provides: Statutes Bonds of . . from taxation: . . .’ . . . subdivisions of this State. . and bonds *3 mentioned bonds are sub- above Mecklenburg County contends the valorem taxes. to the aforesaid ad ject for Clyde Attorneys E. Fisher and J. Stancill,
“Henry Commissioners. Mecklenburg Mecklenburg County and Board Piedmont Insurance Attorneys & for Eire “Guthrie, Blakeney, Pierce Company.” by litigants. of bond omitted—Jurat
Copy court as “This on coming below is fоllows: cause judgment The 2 December, 1935, to be J. at the Shaw, heard before his Thomas Honor, the upon Court of Superior Mecklenburg County, Extra Term having trial by facts to the agreed parties, jury in controversy, after the matters waived; duly considering expressly and, bonds issued the of Win- the court the school opinion Eire on the Company the Piedmont Insurance ston-Salem, owned facts agreed statement of tax return date referred the and cannot taxed lawfully are from valorem taxation exempt and that the said Piedmont Eire Mecklenburg, the county is not for such taxes on said bonds. The court liable taxation. exempt are from municipal necessarily that all holding North Carolina the imposes upon the Constitution of State However, for the children of the education empowered did so provide, case governmental agencies so; to do if the Winston-Salem, for purpose, they had issued its own bonds would be and since governmental purpose, the bonds aforesaid court they is of taxation-either opinion State. governmental agency other is therefore by any аnd decreed that the aforesaid bonds are adjudged, exempt from ordered, Mecklenburg, ad valorem taxation that the same INSURANCE V. MECKLENBURG COUNTY cannot lawfully assessed for taxation by Mecklenburg County, listing that the of tlie aforesaid bonds and the assessment made same by the board of Mecklenburg County Commissioners be and the same hereby void, are declared be null and and that such and assessment be and set listing are vacated and hereby aside. It is further ordered that the costs of this action be taxed against County. Shaw, This J". Mecklenburg 1935. Thomas December, Judge presiding.”
The plaintiffs excepted and error to assigned judgment signed, appealed the Supreme Court. Clyde J. Stancill and H. Fisher Henry plaintiffs. Guthrie, Pierce & Blaheney for defendant. J. question involved: Are bonds issued Clarkson,
city Winston-Salem, municipality, liable ad valorem taxation in when owned and on County the tax return day by Piedmont Eire Insurance a North Carolina Company, corporation, office and principal place business in Mecklenburg County, Carolina, when the proceeds from the sale of said bonds were used purchase land and to erect school buildings and for same, other public school purposes the municipality the said bonds? We issuing think not, facts circumstances of this case.
Constitution of North Y, part, is follows: “Laws shall be passed taxing, by a uniform rule, credits, moneys, *4 investments in bonds, joint stocks, stock or companies, otherwise; and, also, real and personal property, according tо its true in value money.”
Article section VII, 7, declares: “No county, city, town, or other mu- nicipal corporation any shall contract debt, or pledge faith, loan credit, nor tax any shall be levied or collected of by any officers the same for except necessary unless expenses a thereof, by vote of the major- ity qualified voters therein.” VII, 9, Article sec. “All provides: levied city, county,
town, township shall be uniform and ad valorem upon all in the same, except property exempted by this Constitution.” The bonds issued in controversy were accordance the Constitu- tion and legislative given sanction the city of a Winston-Salem, munici- pal corporation. In the of agreed facts is the following: of proceeds “The from the sale the above bonds were issued to purchase high land erect two junior schools, to enlargement and equipment of five school buildings, to erect one new elementary school Negro high school, extension of grounds of North Winston-Salem, Carolina.” 175 N. 0.] Mecklenbubcj County v. follows: is as (19), part, see. 7971 1935 Code, (Micbie), no shall be other, following personal property,
“The Federal farm States, of the United State, Bonds of this (1) taxation: subdivi political stock bank bonds, loan land joint of issued,” State, (Italics ours.) sions etc. this hereafter of has in the statutes been included provision This same bonds under consideration many The years. particular exemption 15 1929. This same of on May, Winston-Salem 1929, Laws 306 344 of Public of chapter section of provided '306 chapter It was of March, ratified of the Public chapter of 1931. It was section of of Public Laws Property sec. (p. 431), Laws 1933. Public Laws ch. 371 of exempt Exempt, part: following property this to or for the use of the State (2) Property article: passing within municipal corporations or to or 'for use of thereof, exсlusively public State or other subdivisions political followed a uniform practice etc. The has purposes,” General-Assembly an ad valorem tax the bonds expressly placed exempting of “the this political the State North Carolina and State.” being subdivision political Winston-Salem, of the General these bonds express language Assembly, and clear from an munici- tax. The
for school purposes subdivision of the pality from taxation. To purchased them and defendant them as least, faith; exemption tax savor of bad would, but, now as the was in unconstitutional, done, could Constitution exemp- cannot see when the bonds were issued. We how the existence Constitution. tion impinges Const, have I, people right of N. Art. sec. declares: “The 0., education, guard privilege and maintain that right.” 1: IX, “Religion, morality, knowledge being happiness and the schools and the government, mankind,
to good 2: encouraged. shall forever Sec. The General means education first under this shall provide at its session Assembly, system and uniform taxation and otherwise to all charge wherein tuition be free children schoоls, *5 ages twenty-one years. of six And children between the State the children the colored shall be taught race and race of the white no schools; but there discrimination favor public separate race. Sec. Each of, either prejudice county or to the State of, number of districts, into a convenient shall be divided County v. Insurance public moro schools shall be maintained at least months in every six year; and commissioners shall fail to with comply requirements the aforesaid shall be liable indict- section, they ment.”
The General of 1899 made the first Assembly appropriation $100,000 for State In 1931 schools. Laws (Public 1931, ch. under 430), the McLean Bill —a compromise measure —all the taken schools were over State to be maintained for six months each and an year, appropriation $16,500,000 each year made. About $12,500,000 fund general and 15c. ad tax on land. The General .the of 1933 increased Assembly the school term to months eight (ch. 562, Public Laws took 1933), the tax off land and substituted a 3c. sales tax to aid the schools. There was also an known appropriation, as the Fund, Tax Reduction fоr each In 1935 $1,500,000 year. appropriation $20,031,000 $20,900,000 the first year (Public second Laws ch. 3c. tax 455), sales and no tax on land. Ward,
In Julian v. 198 N. said: C., (482), citing authorities, “Under these and other pertinent sections of the it has been held jurisdiction that these It provisions are mandatory. is the of the State to system and uniform State schools of at public least six months in year wherein tuition every shall be free of to all charge the children of between the State the ages of six twenty-one. is a expense and a vote of the is not people required to make effective these other constitutional provisions relation to the public system school of the State. Under in relation to mandatory provision school public system the State, the financing is in system discretion General Assembly appropriate legislation, either or through appropriation acting administrative State.” The Constitution of North Art. V, see. 5, supra, unmis- in its takable language: “Property to the State belonging or to a munici- pal corporation taxation.” the schools over by
Before
were taken
Constitu-
municipal corporations
tion,
agencies of the State —“Political
of this State.” Under the
Constitution
schools in
these
not subject
Winston-Salem are
to ad valorem tax, nor the bonds issued
to build
legislative
to ad valorem tax.
a State
down from her
steps
When
sovereignty and
into
goes
business
enterprises
compete with
then
individuals,
the above principle does
Board
Finance Control
not apply.
Buncombe Co. v. Henderson
Co., 208
101 A.
783;
Co.,
Anno.
L.
C., 569,
R.,
Benson v. Johnston
N. C.] Mecklenburg County v. Insurance Co. Comm., Port
In Webb v. 205 N. C., (674-5), is said: its provision in the which Port Commission was by act created property and bonds that be issued and sold authorized may as act shall be State, political is valid. The General has the to so subdivisions, Assembly pro reason that vide, the Port Commission will be and the bonds will be issued Whatever held, solely publiс purposes. as may doubt there validity provision, reason Article V the Constitution of this must State, be, well settled of constitutional principles construction, resolved favor Treasurer, v. validity.” Hinton 193 N. C.,
The eases cited plaintiffs are not applicable to the facts in do apply to bonds for they “public such purposes,” action — as these school such private and as bonds, quasi-public corporations, as In drainage bonds. our we can find no research, in this State that “school bonds” like the issued under au present, legislative thority building schools free education of the municipality children of the State, contemplated by has ever been taxed. Perhaps great these schools cities and counties of thе State would never have built if the bonds were taxable. There are now 914 high schools our 4,505 elementary schools State. In high 156,593 schools and in the schools elementary 736,055 pupils are enrolled. “school bought
Defendant these bonds” under an act of the General Assembly them from taxation. They purchased defendant with this understanding. Constitution of the language, certainly by impliсation, direct allows was for a money exempted, purpose, wit, schools. To now tax them would destroy confidence would be a semblance of unfair entail loss by defendant dealing, purchased who these tax-free “school bonds,” legislative sanction. To say it would impair the credit of the least, no one confi put would dence which would enaсt statute such and purchased tax-free, thereafter allow them to be taxed. Such would type dealing reprehensible in an individ ual, legal aspect and moral would apply to State —the bonds this State. By taxing corporation, defendant is to tax, effect no doubt, guardians, widows, who purchased and other fiduciaries these tax-free bonds under legisla tive sanction and who have done so no doubt to live off of the interest on the or to for minors. provide support Treasurer, v. supra, In Hinton p. (quoting from Sutton “ atC., p. 504), 116 N. it is Phillips, declared: While the courts have it is in proper cases, their power, declare an act of the COURT. IN TEE SUPREME Dills.
State v. *7 that recognized principle a well it is Legislature unconstitutional, government coordinate branch courts will not declare clearly in it it is plainly has vested unless powers exceeded doubt, it will be resolved there is reasonable case. favor of If the people. representatives their powers by exercise lawful is said that this act . . cannot be (p. 505) . ours.) (Italics must be re- doubt, any, unconstitutional. The clearly plainly ” Assembly.’ in favor of the General solved of the court below judgment For the reasons given, Affirmed. that school bonds in the result reached
Devin, J., concurs investor residing in the hands of an of Winston-Salem locally not assessed Mecklenburg County may he C., 751, Johnston County, the citation of Benson v. regards In that it was held that certain real unnecessary this conclusion. case to to not corporation a belonging municipal a a different different result reached. ground taxation. Here, case, expressed Benson his view writer, supra, his dissent V, language and unmistakable positive a “property belonging see. which declares taxation,” be may municipal corporation construction. judicial or qualified by amended RALPH DILLS and LUTHER OSBORNE. STATE E.
(Filed May, 1936.) jeopardy may F a —Plea of former trial 1. Criminal Law determined plea guilty. jury of not plea acquittal plead a former entered refused to Defendants acquittal plea until the of former had been determined. the indictment The general plea guilty of not trial entered pourfc and submitted acquittal jury. question trial Held: of former The trial court has jury pass upon question discretionary have same general plea guilty, excep- jeopardy of not and defendants’ former tions cannot the trial court’s being solely sustained, procedure, matter one of discretionary being determination thereof reviewable. Charges against different offenses differ- Law F 3. Criminal d — jeopardy plea persons former bad. ent jury special found that verdict the defendants had been tried Under attempt person robbery, in an of a certain commit murder for the had Code, 4614, acquitted, and that indictment