#### SOUTHERN RAILWAY COMPANY v. CHEROKEE COUNTY, T. P. CALHOUN, E. A. WOOD and J. M. ANDERSON, THE BOARD OE COUNTY COMMISSIONERS OF CHEROKEE COUNTY, NORTH CAROLINA, and CITIZENS BANK & TRUST COMPANY, Treasurer and Financial Agent of CHEROKEE COUNTY, NORTH CAROLINA.

(Filed 18 September, 1940.)

Taxation § 3a — Ordinarily, expenses of holding courts, maintaining county jail and caring for prisoners are general expenses.

Only under exceptional circumstances may the expenses of holding courts and maintaining the county jail and caring for jail prisoners be classified as expenses for special purposes, since ordinarily the holding of courts is a general expense recurring in the ordinary course of and as necessary steps in the operation of the county government, and the maintenance of the county jail and the caring for prisoners is a general expense, continuous and ever present, and under the facts of this case the expenses are *held*general expenses, and a tax levy therefor in addition to the 15c levy made for general county purposes in another item, Constitution of North Carolina, Art. Y, sec. 6, is invalid, and plaintiff is entitled to recover the amount paid under the additional levy in his suit therefor instituted in accordance with the statutory procedure.

Appeal by defendants from *Rousseau, J.,*at January Term, 1940, of CHEROKEE.

Civil action for recovery of *ad valorem*taxes alleged to have been assessed illegally and paid under protest.

The parties waived jury trial and agreed that the court should find the facts and render judgment in accordance therewith.

The court made findings of facts substantially these: On 11 July, 1938, the board of commissioners for the county of Cherokee, duly organized, levied taxes for the year 1938 at specified rates on the one hundred dollars property valuation for designated purposes — some of the items being: (1) For general county purposes, *fifteen cents,*and (2) “For the special purpose of paying the expenses of holding courts in the county, and the expense of maintaining the county jail and jail *170prisoners,” *five cents.*Tie latter levy was made pursuant to chapter 441 of Public Laws of 1931, and subject to and with tie approval of tie director of local government of tie State of Norti Carolina. Tie levy for general county purposes is to tie full constitutional limit of fifteen cents on tie one iundred dollars valuation of taxable property. Article Y, sec. 6, of Norti Carolina Constitution. Tie purposes of tie said second item of tie levy are necessary expenses of tie county, but, tiougi tie levy is designated “for a special purpose,” tie purposes “are general expenses recurring regularly in tie ordinary course of and as necessary steps in the orderly operation of county government.”

For tie year 1938 tie board of commissioners of said county levied and assessed taxes, including tie levy for tie purposes above stated, on tie valuation of tie plaintiff’s property in Cherokee County, as fixed and certified by tie Utilities Commissioner, in tie total amount of $23,332.68, of which tie sum of $713.93 was tie amount arising from tie said five cents levy. Plaintiff paid tie $713.93 under protest and duly made demand for refund thereof, and in due time instituted this action to recover same.

Tie court below concluded and held as a matter of law tiat tie said levy of five cents is for a necessary expense of tie county; tiat tie same was not levied for a special purpose within tie meaning of tie Constitution and laws of tie State of Norti Carolina; tiat tie bolding of courts is a general expense recurring in tie ordinary course of and as necessary steps in tie orderly operation of county government, and tie caring for and feeding jail prisoners is a general county expense, continuous and ever present, and tiat, therefore, tie five cents levy is for general expenses of tie county, citing *Power Go. v. Clay County,*213 N. C., 698, at 708. Tie court thereupon further concludes as a matter of law tiat the board of commissioners for tie county of Cherokee, having in tie first item levied fifteen cents for general county purposes, tie limit prescribed in tie Constitution, Article Y, sec. 6, tie five cents so levied on each one iundred dollars valuation of property in said county and under attack in this action, is unconstitutional, illegal and invalid. Thereupon, judgment was rendered in favor of tie plaintiff against defendants for tie amount of tax paid under protest.

Defendants appeal to tie Supreme Court and assign error.

*W. T. Joyner, Jones, Ward & Jones, and Cray & Christopher for plaintiff, appellee.*

*J). Witherspoon for defendants, appellants.*

'WiNBORNE, J.

Tie sole question presented for decision on this appeal relates to tie ruling of tie court below tiat, on tie facts found, tie tax *171levy made by tbe board of commissioners for tbe county of Cherokee for tbe purpose of paying expenses of bolding courts and of maintaining tbe county jail and jail prisoners in said county is unconstitutional, illegal and invalid. Tbe ruling is in keeping with tbe decision as to item 10 in *Power Co. v. Clay County,*213 N. C., 698, 197 S. E., 603, where tbe same question was under consideration. While in that case it is said that there may be circumstances under which these expenses would be expenses for special purposes, such circumstances did not arise there. Nor do they appear on tbe facts found here.

Upon authority of *Power Co. v. Clay County, supra,*tbe judgment below is

Affirmed.