The defendant is a municipal corporation, created by statute (Private Acts, 1872-'73, ch. 51), and by section 1 thereof it is provided "that it shall be subject to all the provisions contained in the one hundred and eleventh chapter of the Revised Code" (The Code, ch. 62). The last mentioned chapter contains the general statutory provisions and regulations of this State in respect to towns and cities, except as the same may be changed or modified by particular statutes applying to particular towns and cities. The thirteenth section (138) thereof (The Code, sec. 3800) prescribes and defines the powers of commissioners of towns and cities, and especially it so operated as to confer upon the commissioners of the defendant power and authority, very ample in their scope, to levy a tax, not oftener than once a year, on real and personal property and certain specified subjects of taxation, within the limits of the defendant, for municipal purposes. They were authorized also to appoint necessary officers and agents to enforce their by-laws and regulations and, as well, to enforce the same by proper penalties.
The authority of the commissioners of the defendant to levy a tax upon the taxable property, real and personal, within its limits subject to taxation, for ordinary municipal purposes, is too manifest to admit of question. They were not required to send out commissioners to assess the real estate and other property for taxation. Indeed, they were not authorized to do so; it was their duty to accept and act upon the assessment of the property within its limits for the purpose of county and State taxation, as made by the proper authorities of the county of Richmond in which the defendant is located. R. R. v. Wilmington, 72 N.C. 73; Kylev. Comrs., 75 N.C. 445.
It appears that the current tax year in question began on 5 November, 1884, and that notice was given through a newspaper published within the limits of the defendant on 13 December to all taxpayers to appear before the town clerk before 20 December of that year and render each a sworn list of his taxable property. This, in a small town like the defendant, was not unreasonable in point of length of time. It was the duty of the taxpayers in pursuance of it to render such list. Very few of them, however, did so. Those who did not were in default, and the commissioners were left to ascertain the taxes due from each as they might be able. Exactly how they did so does not certainly appear, *Page 138 but it must be presumed that they acted upon reasonable and proper data, in the absence of a sworn list rendered by the taxpayers.
(139) The tax was laid on 1 December, 1884, and a tax list was made up under the direction of the commissioners and placed in the hands of the proper officer for collection. The mere fact that the person who made up this tax list was not a commissioner — that it was not made up in the immediate presence of the commissioners — did not render it void; it was not the list of him who made the calculations and set it out in form; he was the mere agent of the commissioners and did as they directed — the list was theirs and had their official sanction.
Nor were the tax proceedings void because they were not set down in the permanent record or minutes of the commissioners at the time action was given. they were then set down in writing, on loose papers, to be transferred to the regular minutes, and were afterwards so transferred under the order of the commissioners. This was sufficient. The orders were made — that they were was not questioned on the argument — and that was the material thing to be done. It is not uncommon to keep rough minutes of such proceedings and have them entered on the record afterwards, in a fair hand, under the supervision and, of course, the sanction of the body taking action.
If the tax list as made up contained errors, as it may have done, especially as most of the taxpayers failed to render a proper list of their taxable property, as they were notified to do, and ought to have done, they were nevertheless not without remedy. They or any one or more of them, including the plaintiffs, might have applied to the commissioners to readjust and correct any errors in the taxes charged against them respectively. They had power to correct errors. The settlement of the tax list is always more or less a summary proceeding and ought to be subject to correction upon proper application, and the Legislature, having an eye to this necessity, has wisely provided by statute (The Code, sec. 3823) the largest reasonable opportunity for correcting errors in it, even after it has passed into the hands of the collecting officer. This statute expressly embraces municipal corporations, such as the defendant, as well as counties. It does not, however, appear (140) that the plaintiffs sought such relief. If they had done so, any errors might have been corrected.
And so, likewise, as to the property which it is alleged ought to have been taxed, but was not because, as the commissioners say, they were of opinion it was not subject to be taxed. The plaintiffs might, after the list was made up, have insisted that that property should be taxed, and if it had turned out that there was error in omitting it from the tax list, such error might have been corrected, and the plaintiffs might thus *Page 139 have succeeded in some measure in reducing the tax against themselves and others. They did not choose to do so.
The collection of the just revenues of the defendant cannot be delayed or defeated by injunction for mere irregularities, in some degree occasioned by the taxpayers themselves. It was matter of serious public moment that these revenues should be collected, in order to pay its current expenses and thus keep up its effective organization and efficiency; they were necessary to preserve the peace, health, and good order of the people living and having property there. Every taxpayer was interested in these things, and he ought, if he thought there were some irregularities in the tax levy, to have paid what he was in reason bound to admit he owed. The plaintiffs could have approximately ascertained what each justly owed. They admit that they were taxpayers. They owed something, and this they ought to have paid or offered to pay. If they believed that certain property had been omitted from the tax list, they could have ascertained what they would have owed, if that had been included. It appears that they had the data that would have enable them to do so.
It is a settled rule of law that "when complainant has not paid that portion of the tax which is clearly valid, to which no objection is offered and which can be easily distinguished from the illegal, the injunction will be denied, since the collection of a legal tax will not be restrained to prevent the enforcement of an illegal one (16 Wis. 185), and the bill itself must show what portion of the tax is legal and what is illegal, in order that the court may property discriminate between them. High on Inj., sec. 363; London v. Wilmington, 78 N.C. 109. (141) We think this rule properly applies in this case. The commissioners obviously had the power to levy the tax. The plaintiffs admit that they were taxpayers, and it is manifest that they each owed some part of the tax charged against him. They might have ascertained, at least approximately, what they each owed. But they did not pay or offer to pay any part of the same, and as they did not, they cannot maintain this action. They must pay so much of the taxes as are due, as appears by their own showing, before they can ask for an injunction to restrain the collection of so much as may be reasonably in question. The judgment must be affirmed. To that end let this opinion be certified to the Superior Court according to law.
No error. Affirmed.
Cited: Wiley v. Comrs., 111 N.C. 400; Wilson v. Green, 135 N.C. 351;Howell v. Howell, 151 N.C. 577. *Page 140