
    POCOMOKE GUANO COMPANY v. THE CITY OF NEW BERN et al.
    (Filed 18 October, 1916.)
    1. Taxation — Tax list — Personalty Omitted — Back Taxes — County Commis- . sioners. '
    Where specific property has been omitted from tbe tax list by tbe owner ór person required by law to list it, tbe county commissioners shall enter the same on tbe duplicate of tbe next succeeding year in which it shall have escaped taxation; and the aldermen of a city shall do likewise. Revisal, sec. 5,232.
    2. Taxation — Uniformity—Constitutional Law — Equalization — Statutes—Excessive Valuation.
    Our Constitution requires that all taxes, whether levied by State, county, city, or town, shall be laid by a uniform rule, which can only be done, as to property, by providing for one valuation; and by statute creating a county board of equalization, with authority to hear and determine complaints as to proper valuation and excessive rates, etc., Revisal, secs. 5234, 5235, 5236, the county board is given exclusive original jurisdiction to grant relief against excessive valuation, and the valuation thus determined by it is binding upon cities and towns and must be adopted by them.
    3. Same — Pleadings—Demurrer.
    The complaint in an action against a city to recover for taxes paid must allege that the valuation complained of is greater than that fixed by the county board of equalization, or the tax he was forced to pay was greater than it would have been if correctly computed at the legal rate on the valuation properly ascertained, or a demurrer thereto will be sustained.
    This action is brought to recover certain alleged excessive taxes paid to defendant by plaintiff on fertilizing material stored in defendant’s warehouses in tbe city of New Bern during years 1907, 8, 9, and' 10. Tbe cause was beard by Devin, J., at April Term, 1916, of CbaveN, upon tbe pleadings, and a demurrer ore tenus sustained upon tbe ground that the complaint failed to state a cause of action. No amendment to complaint was asked. From the- judgment dismissing tbe action, the plaintiff appealed.
    
      Moore & Dunn for plaintiffs.
    
    
      R. A. Nunn for defendants.
    
   BeowN, J.

Tbe plaintiff alleges tbat defendant placed its fertilizer upon tbe tax lists for tbe years named and valued it at an excessive valuation, refusing to bear evidence as to its actual value, as requested by defendant.

Tbe plaintiff paid tbe taxes upon sucb assessed valuation to defendant, and sues to recover back tbe taxes upon tbe difference between wbat plaintiff alleges is tbe actual value of tbe fertilizer on band during those years and tbe taxes as assessed. Plaintiff admits tbat it failed to list said fertilizer or any part of it for taxation during those years.

Tbe plaintiff is a Virginia corporation, and claimed tbat its manufactured fertilizer stored in New Bern during those years for sale was not subject to local ad valorem, taxation, and sought to enjoin tbe county authorities from placing tbe fertilizer upon tbe tax books for those years and from collecting tbe taxes which they bad assessed thereon.

Tbe case was appealed to this Court, and it was held tbat while the State may not levy an ad valorem or other tax on personal property in transit in tbe course of interstate commerce, tbe principle does not apply to property stored within tbe State by a nonresident for purposes of sale and distribution. 158 N. C., 212.

Under tbat decision we assume tbat tbe county of Craven collected tbe taxes upon plaintiff’s fertilizer stored in New Bern during tbat period.

Tbe defendants contend tbat tbe plaintiff is not entitled to recover anything by this action, unless it is alleged and proven tbat tbe valuation of its property upon tbe tax books in tbe bands of tbe city tax collector is greater than tbat fixed upon it by tbe proper authorities, viz., tbe board of commissioners' for tbe county of Craven, or tbat tbe tax ■vjbieb it bas been forced to pay on tbe property was greater than it would bave been if correctly computed at tbe legal rate on tbe adjudged valuation.

Our laws provide tbat tbe board of county commissioners and tbe chairman of tbe board of list takers and assessors of tbe several townships and wards of cities and towns shall contitute a board of equalization for tbe county (Eevisal, sec. 5234) ; to sucb board the returns of tbe list takers and assessors are made. It is provided tbat tbe board of commissioners of tbe county shall bear all persons objecting to tbe valuation of their property or tbe amount of tax charged against them; that sucb board shall ascertain tbe valuation of property by examination of witnesses or otherwise, and insert it in tbe abstract (sec. 5235) ; and it is further provided tbat -taxpayers may complain to tbe board of commissioners of tbe county if their property bas been improperly valued, or if tbe taxpayer is charged with an excessive tax, etc. (see. 5236).

In all cases where any specific property shall have been omitted from the tax list by the owner or person required by law to list the same, the board of commissioners shall enter the same on the duplicate of the next succeeding year, and shall add to the taxes of the current year the simple taxes of such preceding year, not exceeding five years, in which such personal property shall have escaped taxation, and the board of commissioners shall value and assess the' personal property for those years; and the board of aldermen of the city shall do likewise (sec. 5232).

Our Constitution requires that all taxes, whether levied by State, county, city, or town, shall be laid by a uniform rule, and this can only be done by providing for one valuation only upon property. Kyle v. Comrs., 75 N. C., 445.

This valuation is made by .the county authorities, who have exclusive original jurisdiction to grant relief against excessive valuation. Their valuation is binding upon the cities and towns, and must be adopted by them. When the county authorities reduce such valuation, the other municipal authorities must do^ likewise. Wade v. Comrs., 74 N. C., 81.

The valuation upon jDersonal property is made by the taxpayer when he lists his property, and is binding upon the list taker, but it may be corrected by the county commissioners or board of equalization at the date fixed by the statute, upon due notice to the taxpayer.

It follows, therefore, that “excessive valuation” as used in the various Machinery Acts means a valuation exceeding that which is fixed by the county authorities, and the “excessive tax” that may be recovered back by the taxpayer is a tax exceeding what the tax would be if correctly calculated at the legal rate on the valuation as finally fixed by the county authorities.

It is, therefore, incumbent upon the plaintiff, in order to set out a good cause of action, to. allege that the tax it seeks to recover was levied upon a valuation greater than that fixed by the county authorities; that is to say, that the tax plaintiff has been forced to pay was greater than it would have been if correctly computed at the legal rate on the adjudged valuation. It is the difference that plaintiff would be entitled to recover. Pickens v. Comrs., 112 N. C., 699.

Lumber Co. v. Smith, 146 N. C., 199, cited by plaintiff, has no relation to the question presented by this appeal. In that case this Court held that the county authorities have no right to place solvent credits or other personal property upon the tax lists and assess taxes thereon, although the taxpayer may have omitted such property from his tax list, unless they give the taxpayer due notice and an opportunity to be heard. An injunction was granted prohibiting the collection of such tax.

It is true, tbe plaintiff avers that the city aldermen refused to hear plaintiff ;upon the application to reduce the valuation of the fertilizer, but cv.-i bono? A hearing would have been fruitless, since the aldermen had no jurisdiction to change such valuation.

Affirmed.  