#### JONES v. COMMISSIONERS.

(Filed November 13, 1906).

Taxation — Subscriptions to Railroads — Bonds—Legislative Power — Uniformity—Counties and Townships — Mandamus — Limitation of Action — Parties.

1. Where certain townships by extra taxation procured the building through their territory of a railroad, the Legislature has the power to direct the County Commissioners to expend exclusively in those townships the county taxes derived from such railroad property in said townships “in repairing roads, building bridges, extending schools, or such other purposes as the Commissioners may deem best,” until the amount so used in said townships shall fully reimburse them for the amount paid out to aid in building said railroad.

2. There is no constitutional requirement that the tax rate for county purposes shall be the same everywhere. It varies in the different *60counties, and may vary in different townships, parts of townships, districts, towns and cities in the same county.

3. The Constitution recognizes the existence of counties, townships, cities and towns as governmental agencies; but they are all legislative creations and subject to be changed, abolished or divided, at the will of the General Assembly.

4. Where the relief sought is a mandamus to compel a Board of County Commissioners to expend in a township certain taxes as directed by statute, the tax-payers in said township are proper parties to bring the action, and there is no statute of limitations, as the relief sought is prospective.

5. Where a statute requires the County Commissioners to invest each year, in interest-bearing securities, the county taxes derived from the taxation of the property of a railroad in a certain township, as a sinking fund for the payment, at maturity, of the bonds issued by said township to aid in building said railroad, a mandamus to compel the Commissioners to reimburse said township for the amount of said bonds was properly refused, where the bonds had been already paid off.

ActioN by A. Gr. Jones and others against tbe Board of Commissioners of Stokes County, pending in tbe Superior Court of StoKes, and beard by Judge Cr. W. Ward, by consent, at chambers at Winston, on 12 October, 1906, upon tbe pleadings and agreement of facts.

In 1880 Sauratown. and Meadows townships in Stokes County, under tbe authority of chapter 67, Laws 1879, voted to subscribe $6,660.66 each to tbe capital stock of the Cape Eear and Yadkin Yalley Railroad Company to procure said railroad to be built through their respective townships, and to levy a tax on said townships to pay the subscription, which has sine© been fully paid up. The road' was built through said townships and has since become the property of the Southern Railway Company. Meadows Township has been divided into two townships, Meadows and Danbury.

In 1887 said Sauratown Township, Stokes County, under the authority of chapter 87, Laws 1887, voted to subscribe $10,000 to the capital stock of the Roanoke and Southern *61Railroad Company to procure said railroad to be built through the township, and to issue $10,000 in bonds, to be sold to pay up said subscription, which was done, and subsequently the township paid off and cancelled said bonds. The road was built through said township and has since become the property of the Norfolk and Western Railroad Company.

In 1893 the General Assembly enacted chapter 448, Laws 1893, which as amended by chapter 131, Laws of 1895, reads as follows:

“SbctioN 1. The Commissioners of Stokes County are hereby authorized and directed to set apart from all other county taxes all the taxes paid each year as county taxes by the Cape Fear and Yadkin Valley Railroad Company on their property, lying and being in Sauratown and Meadows townships of said county of Stokes; and the same so respectively paid each year on the property in each of said townships by said railroad company shall be divided into two equal shares, one-lialf thereof to belong to Sauratown Township and the other half to belong to the territory now embraced in Meadows and Danbury townships, to be divided between said Meadows and Danbury townships in proportion to the amount of taxes paid by said territory now embraced in Danbury and Meadows townships, respectively, to the Cape Fear and Yadkin Valley Railroad Company, and shall be expended exclusively within the said Sauratown and Meadows and Danbury townships, respectively, for repairing the public roads, building bridges, extending schools, or such other purposes as the Commissioners may deem best, and not otherwise.

“Sec. 2. The Commissioners of Stokes County are authorized and directed to invest each year in interest-bearing securities, which in their judgment are safe and reliable, the surplus money arising from the county taxes paid by the Norfolk and Western Railroad Company, over and above the amount required to pay interest on the bonds issued by Sauratown *62Township in aid of said railroad, on all their property lying and being in Sauratown Township, in said county of Stokes, the interest on the bonds outstanding first having been paid each year before said surplus is invested; and the surplus so invested shall be a sinking fund for the redemption of the bonds at maturity, it being the intention of this act that the surplus shall not be used by the county as a part of the general county fund, but for the purpose herein set forth.

“Sec. 3. That whenever the bonded debt, principal and interest, of said township, contracted in aid of the Roanoke and Southern, now the Norfolk and Western Railroad, shall have been paid by said county taxes on said road, and the said township fully reimbursed for what has been already paid, and whenever the Meadows Township shall be fully reimbursed and said taxes, principal and interest, the amount paid by said township, that this act shall cease to be operative, and all such taxes shall be paid into the general county fund.”

This is an action brought by these tax-payers of the aforesaid townships, on behalf of all the tax-payers therein, averring that the defendant Board of County Commissioners of ■ Stokes has never complied with the requirements of the aforesaid acts, but has collected the taxes on said railroad property in said townships, and has applied them to general county purposes, and though a demand was made on the board, before bringing this action, that it should apply the aforesaid taxes to the purposes set out and required by said acts, the defendant refused to do so. The relief sought is a mandamus to compel the defendant to comply with the statute by applying the taxes raised on said railroad property in the townships named, as follows: “That the taxes levied on the property, formerly owned by the Cape Eear and Yadkin Valley Railroad Company, be applied to repairing the public roads in said townships and for the other purposes set out in said act, and that the taxes levied on the property owned by the *63Norfolk and Western Eailway Company be ,paid to said Sauratown Tbwnskip until said township is reimbursed in both the principal and the interest paid on said bonded indebtedness of $10,000,” and for a reference to ascertain the sum that should be so applied. His Honor granted judgment as asked in favor of the plaintiffs as to the taxes hereafter to be collected on the Southern Eailway in said township, that the same shall be applied as provided in section 1 of the act in the manner and to the extent therein mentioned, and for a reference to ascertain the amount. From this order the defendant appealed.

It was further adjudged that Sauratown Township is not entitled to be reimbursed in any amount for the sums paid out on the subscription for building the Eoanolce and Southern Eailroad, and from this order the plaintiff appealed.

Lindsay Patterson and W. W. Xing for the plaintiff.

Manly & Hendren and N. O. Petree for the defendant.

DEFENDANT^ APPEAL.

Clase, O. J.,

after stating the case: The townships named in the act having, by the extra taxation they had imposed upon themselves, procured the building through their territory of the Cape Fear and Yadkin Valley Eailroad, now the property of the Southern Eailway Company, the General Assembly thought it just and equitable that the county taxes derived from such property in those townships should be expended exclusively in said townships “in repairing roads, building bridges, extending schools or such other purposes as the Commissioners may deem best,” until the amount so used in said townships should fully reimburse them for the amount paid out on subscriptions to aid in building said railroad. We know of no provision in the Constitution which disables the Legislature from passing such act.

*64Tbe defendant contends that tbe act interferes with tbe requirement of uniformity and equality of taxation. But there is no constitutional requirement that tbe tax rate for county purposes shall be tbe same everywhere. It varies in tbe different counties. Tbe rate of taxation may vary in different townships, parts of townships, districts, towns and cities in tbe same county, as where some have voted extra taxation for roads, fences, schools, etc., and in this very instance tbe taxes were higher a few years ago in those three townships, by reason of the tax to pay their railroad subscription- — an inequality for which this act seeks to reimburse them. In fact, the levy for county taxation is uniform throughout the county under this act, which is merely a legislative requirement of the appropriation of money raised from certain property taxes, in those townships, to certain public purposes therein, which the General Assembly thought just and proper. The act does not interfere with the constitutional provision appropriating the poll tax and fines, forfeitures and penalties. The defendant suggests, however, that it infringes upon the provisions of the Constitution “establishing counties and requiring them to be maintained in their integrity.” But we do not find any such provisions. The Constitution recognizes the existence of counties, townships, cities and towns as governmental agencies (White v. Commissioners, 90 N. C., 437), but they are all legislative creations and subject to be changed (Dare v. Currituck, 95 N. C., 189; Harris v. Wright, 121 N. C., 172), abolished (Mills v. Williams, 33 N. C., 558), or divided (McCormac v. Commissioners, 90 N. C., 441) at the will of the General Assembly. In Tate v. Commissioners, 122 N. C., 813, it is mentioned that the names of fourteen counties, formerly existing, have disappeared from the map of the State. Another (Polk) was once abolished and subsequently recreated.

A case exactly in point with this is Clark v. Sheldon, 106 N. Y., 104, which held constitutional an act “directing and *65providing for tbe application of taxes assessed upon any railroad in a town, city or village towards tbe redemption of bonds issued by tbe municipality to aid in tbe construction of sucb railroad,” and pointed out that this did not impose a tax upon property in other portions of tbe county for tbe benefit of any township, city or town, but simply appropriated tbe taxation upon sucb railroad property for tbe benefit of tbe municipality which bad incurred a burden to procure tbe building of such railroad. Tbe same view is upheld in Commissioners v. Lucas, 93 U. S., 108.

It rested in tbe judgment of tbe General Assembly to direct tbe Commissioners of Stokes County to make this application of tbe county taxes derived from railroad property in those townships. Should this statute not meet tbe approval of subsequent Legislatures it can be repealed, but unless repealed it is tbe duty of tbe County Commissioners to obey it until, as provided therein, tbe townships named in section 1 shall be reimbursed in tbe manner stated.

It was competent for these plaintiffs, tax-payers in said township, to bring this action, “tbe question being one of common or general interest” to all tbe tax-payers therein. Revisal, 411; Bronson v. Ins. Co., 85 N. C., 411; Thames v. Jordan, 97 N. C., 121; McMillan v. Reeves, 102 N. C., 550.

Nor is there any statute of limitations. Tbe plaintiff is not seeking to recover a debt, nor even to compel tbe County Commissioners to account for tbe taxes heretofore collected on railroad property in said townships, but tbe relief sought is prospective, to require compliance with the statute in future. It imposes a continuing duty until it shall be complied with or repealed.

No Error.

PLAINTIEP's APPEAL.

Clare, C. L.

Section 2 of tbe act requires tbe County Commissioners to invest each year, in interest-bearing securi*66ties, tbe county taxes derived from tbe taxation of tbe property of tbe Norfolk and Western Railroad Company in Sauratown Township, as a sinking fund for tbe payment, at maturity, of tbe bonds issued by said township to aid in building said railroad (after first deducting thereout enough to pay tbe current interest). As tbe bonds of said township have been paid off, there is no sinking fund required to pay tbe bonds, and tbe mandamus in this regard was properly refused.

It would have been otherwise if this section bad, like section 1, required tbe reimbursement of that township by disbursing tbe taxation, derived from said railroad, for roads, schools, etc., in tbe townships named. Whether it shall be so amended is a matter for tbe Legislature. Tbe statute does not now so require.

No Error.