# Belk's Department Store, Inc. v. . Guilford County > Supreme Court of North Carolina · January 8, 1943 · 222 N.C. 441 URL: https://www.frixlaw.com/law-library/cases/9808550 ## Case - **Full name:** BELK’S DEPARTMENT STORE, INC., v. GUILFORD COUNTY; GEORGE L. STANSBURY, Chairman, J. W. BURKE, R. C. CAUSEY, JOE F. HOFFMAN and FLAKE SHAW, Constituting the BOARD OF COMMISSIONERS OF GUILFORD COUNTY, NORTH CAROLINA, and Also Constituting a BOARD OF EQUALIZATION AND REVIEW; And A. C. HUDSON, Tax Supervisor of GUILFORD COUNTY, NORTH CAROLINA - **Court:** Supreme Court of North Carolina - **Decided:** January 8, 1943 - **Citations:** 222 N.C. 441; 23 S.E.2d 897; 1943 N.C. LEXIS 350 - **Precedential status:** Published - **Opinion:** Dissent by Stacy - **Judges:** Seawell, Stacy - **Cited by:** 36 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9808550 ## Opinion text Stacy, C. J., dissenting: The appeal should be dismissed or else the ruling on the motion should be affirmed. A landowner feeling aggrieved at the excessive valuation of his property for purposes of ad valorem, assessment and taxation, after exhausting the administrative machinery of the State to little or no avail, applies to the Superior Court for relief. He alleges, without any undue characterization, that the method of assessment adopted by the local authorities was erroneous and unjust in result; that it caused the valuation of his property to be excessive, wide of the mark, at variance -with the provisions of the Machinery Act and discriminatory, and that “the State *450 Board of Assessment, in its opinion denying relief to the petitioner, failed to take into account any of tbe petitioner’s evidence, save the purchase price of the land, and this is rejected as not being controlling.” (Par. 14.) The merits of the case are not now before us. The only question sought to be presented is whether the petition should be entertained. The majority says “No.” The judge of the Superior Court thought otherwise, and I agree with him. I. PROCEDURAL CONSIDERATIONS. In the first place, the appeal is premature and should be dismissed ex mero motu. Thomas v. Carteret County, 180 N. C., 109 , 104 S. E., 75 . No appeal lies from a refusal to dismiss an action or proceeding. Goldsboro v. Holmes, 183 N. C., 203 , 111 S. E., 1 ; Farr v. Lumber Co., 182 N. C., 725 , 109 S. E., 383 ; Bradshaw v. Bank, 172 N. C., 632 , 90 S. E., 789 ; Goode v. Rogers, 126 N. C., 62 , 35 S. E., 185 . While an appeal lies from a ruling on a demurrer which goes to the whole cause of action, the practice is otherwise on denial of motion to dismiss, even where the basis for the motion is alleged deficiency of allegation to state a cause for relief. Shelby v. R. R., 147 N. C., 537 , 61 S. E., 377 ; Mullen v. Canal Co., 112 N. C., 109 , 16 S. E., 901 . The reason no appeal lies from a refusal to dismiss is that it does not come within the purview of the statute, C. S., 638, permitting appeals. Johnson v. Ins. Co., 215 N. C., 120 , 1 S. E. (2d), 381 ; Cement Co. v. Phillips, 182 N. C., 437 , 109 S. E., 257 ; Leak v. Covington, 95 N. C., 193 . Perhaps a hundred cases could be cited in .support of this position. Chambers v. R. R., 172 N. C., 555 , 90 S. E., 590 . Indeed, speaking to the point in Joyner v. Roberts, 112 N. C., 111 , 16 S. E., 917 , it was said: “There are some questions which, by reiterated and uniform adjudications in regard to them, should be deemed settled. This is one of them.” The reason for adhering to this procedure is, that the rights of the parties are different on formal demurrer from what they are on motion to dismiss. C. S., 515; Shelby v. R. R., supra. The rule is in the interest of fairness to both sides. If the trial should result in favor-of the respondents, they will not desire to appeal; if it is against them, their exception in the record for refusal to dismiss is not waived, and they will have the benefit of it on appeal from the final judgment. The disadvantage, if any, is not with the appellants, but with the appellee, since if he wrongfully insist on the refusal of such motion, instead of asking for an opportunity to make good his position, he may find that his victory is barren, and that he has the costs to pay for his bootless clamor. Joyner v. Roberts, supra; Mullen v. Canal Co., supra. *451 Tbe uniform decisions are to the effect that a refusal to dismiss an action or proceeding before the final hearing does not “affect a substantial right” within the meaning of C. S., 638, and that an appeal therefrom will be dismissed. Wilson v. Lineberger, 82 N. C., 412 ; Mitchell v. Kilburn, N. C., 483. It is true, on petition for certiorari the applicant must show merit, but we are here dealing with an appeal from an order of the Superior Court denying a motion to dismiss. The two are not the same. The one is addressed to the chancellor with authority to entertain amendments if desired; the other is not appealable. The respondents are seeking to cut short the matter by appealing from a refusal to dismiss and presenting the case as upon demurrer without its incidents. The majority approves; I disagree. The argument at the bar centered around the appropriateness of the writ rather than the sufficiency of the petition. The opinion of the majority seems to have taken its cue from the argument. More of this anon. II. Application op Machtneby Act. Secondly, it is provided by Art. V, sec. 500, of the Machinery Act. ch. 310, Public Laws 1939, that the assessment of property for purposes of taxation shall be “at its true value in money,” and ad valorem taxes are to be levied “uniformly on valuations so determined.” It is further declared to be the intent and purpose of the Act to have all property and subjects of taxation assessed at their true and actual value in money, “in such manner as such property and subjects are usually sold,” not by forced sale, but for what the property and subjects “can be transmuted into cash when sold in such manner as such property and subjects are usually sold.” The petition alleges that this provision of the Machinery Act has been ignored or violated in the assessment of petitioner’s property. Beyond all peradventure it would seem that such an allegation ought to suffice to sustain an application for certiorari. Even where the findings of fact made by an administrative body are conclusive on appeal, the courts are disposed to set them aside, if, in making them, the fact-finding body has disregarded or misconceived the law. McGill v. Lumberton, 215 N. C., 752 , 3 S. E. (2d), 324 . It seems quite clear that an allegation such as the petitioner makes here in respect of the misapplication of the Machinery Act belongs to the courts for final adjudication. This allegation alone should save the petition from dismissal. In addition, however, it is alleged that the State Board of Assessment “failed to take into account any of petition *452 er’s evidence save tbe purchase price of tbe land.” What more is needed to excite the interest of a court of equity ? III. PERTINENT Ob&ANIC PROVISIONS. Thirdly, there is something in the Constitution on the subject-matter of the petition: 1. “The power of taxation shall be exercised in a just and equitable manner. . . . Taxes on property shall be uniform as to each class of property taxed.” Art. Y, see. 3. 2. “No person ought to be . . . in any manner deprived of his . . . property, but by the law of the land.” Art. I, sec. 17. In numerous decisions, it has been said that the pervading principles to be observed in matters of taxation are equality of treatment and fair play. Rockingham County v. Elon College, 219 N. C., 342 , 13 S. E. (2d), 618 . It is the will of the people of this State, as expressed in the organic law, that justice shall prevail in tax matters, with “Equal rights to all and special privileges to none.” Of course, in devising a scheme of taxation, “some play must be allowed for the joints of the machine,” and many practical inequalities may exist, still they are. not to result from obvious discrimination. The goal must be kept in sight. The thesis of the Constitution is, that all similarly situated are entitled to like treatment from the government they support. Leonard v. Maxwell, 216 N. C., 89 , 3 S. E. (2d), 316 . A discrimination in assessment is as much a violation of the rule of uniformity as a discrimination in the rate of levy. 2 Cooley’s Const. Lim. (8 Ed.), 1066, et seq. In either case, the result is unequal taxation. To say that arbitrariness must be alleged in the one case and not in the other to give the courts jurisdiction is to make a distinction not heretofore observed in the decisions. Even so, a liberal interpretation of the present petition, which the pleader is entitled to have made, C. S., 535, would seem to suffice as against a motion to dismiss. It is going rather far to say that equity cares nothing for the allegations of this petition. It invokes the judicial process to make sure that fairness dominates the administration of the law. The procedure here followed has been suggested in a number of cases; first, in Caldwell County v. Dougton, 195 N. C., 62 , 141 S. E., 289 , then in Power Co. v. Burke County, 201 N. C., 318 , 160 S. E., 173 , and, lastly, in Hooker v. Pitt County, 202 N. C., 4 , 161 S. E., 542 . Presumably, these suggestions are now to be regarded as apocryphal. At any rate, the present petitioner, in following them, has only had his toils for his pains. Heretofore, the question of form has not been regarded as capitally important, as the above cases will disclose. Equity concerns itself with the substance. It is not bound by form. Moreover, if the thesis of the *453 majority be correct, there is no valid appeal in this Court. But instead of engaging in over-refined distinctions, the point should be stressed that we are here dealing with a matter which affects every property owner in the State. A discriminatory assessment is just as unlawful as a discriminatory levy, and equally as hurtful. They both fall in the same category; and it is not after the manner of the courts of equity to close their doors on allegations of illegality involving either. Anderson v. Asheville, 194 N. C., 117 , 138 S. E., 715 ; Banks v. Raleigh, 220 N. C., 35 , 16 S. E. (2d), 413 . It can make no difference whether the inequality inheres in the law or results from its administration, the effect is the same so far as the citizen is concerned. A charge of discrimination, whether in the assessment or in the rate of tax, presents a question of law as well as fact, sufficient to support an application for certiorari. A direct attack upon an administrative determination made in an appellate proceeding on certiorari, “unlike that on a writ of error at law, extends to the findings of fact as well as to the ruling on questions of law.” Panama Mail S. S. Co. v. Vargas, 281 U. S., 670 . A mode of assessment which disregards the established method and results in discrimination falls short of the constitutional requirement of “due process” of that no person shall be deprived of his property “but by the law of the land.” "What becomes of this guarantee if the courts will not entertain an allegation of illegality or discrimination in the administration of the law? The Constitution forbids discrimination, either in the law itself or in its administration, and, hence, a discriminatory assessment, even under the statutory formula, runs counter to the law of the land. Brinkerhoff-Faris Co. v. Hill, 281 U. S., 673 . This position has heretofore been taken for granted. The suggestions in the cited cases appear to have been made as a matter of course. Here, however, we have the question debated and decided against the petitioner, not upon the merits of the case, but as a matter of procedure. An administrative discrimination is just as unlawful as a legislative one. In. the Hill case, just cited, the Supreme Court of the United States dealt with an excessive and discriminatory assessment on certiorari, and reversed a judgment of the Supreme Court of Missouri, because it “denied to the plaintiff due process of law.” The petitioner ought not to be required to raise a Federal question in order to get into the State courts. The allegation in -paragraph 14 alone is sufficient to invoke the aid of equity. It needs no embellishment with descriptive adjectives or conclusional characterizations. The failure to accord the protestant an adequate hearing was the basis of the reversal in the Hill case, supra. An ad valorem tax on a discriminatory assessment, not only offends against the constitutional requirement of uniformity, Art. V, sec. 3, but *454 also against the inhibition of unlawful deprivation. Art. I, sec. 17. Such is the gist of the petition in the instant case. I am not willing to say that the judiciary is exhausted or that equity is impotent to entertain the petition. Nor yet that the petition is feckless. “Procedural instruments are means for achieving the rational ends of law.” Adams v. U. S. ex rel. McCann, 317 U. S.,..... (decided 21 December, 1942). The judicial power of the State resides in the courts. Const., Art. IV, see. 2. If the General Assembly is not permitted to discriminate in taxing property of the same class, it follows that it may not provide for the freezing of a discriminatory assessment in the administration of the law. The petition ought to be heard. It alleges an invasion of the right of equality of treatment. Greene v. L. & I. R. R. Co., 244 U. S., 499 . The argument ah inconvenienti would seem to answer itself when it is recalled that the establishment of justice is the end of all government. To abandon its pursuit in the face of a charge' of discrimination is to admit defeat. It is not in caste for equity to be so easily daunted. Its arms are neither short nor palsied. It is given to exalting substance over form and lending an attentive ear to allegations of maladministration. Such is its mission. The procedure in the Superior Court will depend upon the issues raised by the pleadings. These have not yet been determined in the instant case. Equity molds its decrees to meet the exigencies of the particular case. It is fully capable of directing that to be done which of right ought to be done. McNinch v. Trust Co., 183 N. C., 33 , 110 S. E., 663 , Suum Cuique. There is no difference in principle between an unlawful exemption and an excessive assessment. The one results in a discrimination in favor of the landowner; the other in a discrimination against him. We hear the one (Odd Fellows v. Swain, 217 N. C., 632 , 9 S. E. [2d], 365) and decline to hear the other. We told the plaintiff in HooTcer v. Pitt County, supra, that his remedy was by application for a certiorari. The present petitioner applies for a certiorari and we tell him that his application will not lie. No case is cited, and none has been found, where equity has turned its back on allegations such as the petitioner makes here. My vote is to dismiss the appeal; failing in this, I vote for an affirmance. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9808550. Public record. Not legal advice.