Opinion
(Decided 26 April, 1898.)
Action to Recover Delinquent Taxes — Delinquent Taxes — Interest — Repeal of Statute — Counsel.
1. An action pending to recover arrearages of taxes brought under chapter 182, Acts of 1895, authorizing the collection of unpaid taxes for past years, is not affected by the repeal of such statute. (Section 3764 of The Code.) FAIRCLOTH, C. J., and FURCHES, J., dissent.
2. Under chapter 182, Acts of 1895, authorizing the collection of delinquent taxes, interest, and penalties, no rate of interest being fixed therein, only 6 per cent interest per annum can be recovered.
3. Section 2 of chapter 182, Acts of 1895, authorizing the collection of delinquent taxes due to the City of Wilmington provides that the city attorney, together with such other associated counsel as he may select, shall bring the actions. Held, that it was proper, on the resignation of the city attorney, for the associated counsel to continue as counsel for the city.
ACTION under chapter 182, Laws 1895, to recover certain back taxes alleged to be due by the defendant R. C. Stolter on certain property in the city of Wilmington for the years 1891-'92-'93, and tried before Allen, J., at September Term, 1897, of NEW HANOVER, a jury trial being waived. The facts necessary to an understanding of the opinion appear therein. His Honor rendered judgment for the plaintiff and defendants appealed.
George Rountree and Ricaud Bryan for plaintiffs.
J. D. Bellamy for defendants.
This action was brought under Laws 1895, chapter 182, authorizing "the collection of arrears of taxes due the city of Wilmington" by the State, county and city, to recover arrearages of taxes due by the defendant for 1891, 1892 and 1893. The summons was issued on 15 December, 1896, but the trial was not had until after the repealing act ratified on 9 March, 1897. For the reasons given in Wilmington v. Cronly, ante, 388 (in the opinion in the plaintiff's appeal), the plaintiff's right to collect arrearages of taxes accrued under the act of 1895, and hence this "action brought before repeal" is not affected by the repealing act. Code, section 3764. His Honor, however, erred in allowing 8 per cent interest, for the reasons given in Cronly's case, supra. The judgment will be modified by reducing the interest on the recovery to 6 per cent.
Sec. 2, ch. 182, Laws 1895 provides that the city attorney, together with such associate counsel as he may select, shall bring the actions authorized by said chapter for delinquent taxes. This was done, and the associate counsel were recognized by the city authorities. Afterwards, the city attorney resigned. We cannot see upon what ground the defendants can object to the associate counsel continuing as counsel for the city.
Modified and affirmed.
Cited: Wilmington v. Bryan, 141 N.C. 691.
(397)