The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-05-12

prior to June, 1903. We're fair, equal
and uniform. IL this be 50, it would
appear reasonable that the plaintiffs
should be required to comply with the
ordinary requirement or condition pre-
cedent to bringing an action to re-
strain the collection of a tax, by pay
ing or at least rendering what is justly
due, which could have been approx
mately ascertained. 1t is
put the familiar application of the
universal rule that he who seeks
equity at the hands of the court must
first do equity In respect TO this
requirement it has been said in n case
not unlike this in principle, that the
plaintiffs resist the rule by which the
value of their. property was ascertain
ed and then resist the tax. But sure
ly they must pay the tax by some rule;
should they pay nothing, and escape
wholly because they have been as
sessed too high? 1t is not sufIi-
cient to say in their complaint that
they are ready and willing to pay
whatever may be found due. They
must first pay what is conceded to be
due or what can be seen to be due
on the face of the complaint Surely
something is due, and the State is
not to be thus tied up as to that about
which there is no contest, by humping
it with that which is really contested. .,
Mccall Can't Recover.
In the office-holding case of r. S.
Mccall against Charles A. Webb,
from Buncombe, the court reverSes the
judgment of the lower court allowing
Mccall to recover damages on account
of having been elected solicitor of the
Criminal Circuit court of the coun-
ties of Buncombe, Madison, Haywood
and Henderson, which court was es-
tablished by the Legislature of 1895,
and the act repealed in 1899, and the
Western District Criminal court estab
lished. The opinion is by Associate
Justice Plat ID. Walker. Associate
Justices w. a. Montgomery and II
w. Douglas filed dissenting opinions.
Mccall was elected as solicitor of
the circuit court first mentioned for
a term of four years. After the
Western District Criminal court was
established, the defendant, Webb, was
appointed solicitor for the county of
Buncombe. Thereupon Mccall brought
action in quo warranto to test the
validity of the act of 1899, claiming
that Webb was not entitled to the
office, and that he himself was. The
lower. court first, upon motion, gave
Judgment to Mccall, declaring him to
be entitled to the office. From that
judgment the defendant appealed, and
the Supreme court, on November list,
1899, affirmed this judgment.
At the February term, 1900, of the
Superior court, motions by Mccall for
the payment to him of fees and emol-
uments by Webb to the amount of
500 were denied, and that judgment
was affirmed by the Supreme court.
Then i'm November, 1900 Mccall
brought action against Webb and his
surety to recover fees amounting 10
S657.5C. The defendant pleaded the
former Judgment as a bar TO this ac-
ton. The matter was heard upon
case agreed, and the court adJudged
that Mccall should recover the 500 f.5O
With interest and cost. From this the
defendant appealed. The case was
argued before the Supreme court by
Julius G. Martin, F. a. Sondley and T.
II. Cobb for Webb, and Frank Canler
and V. S. Lusk for Mccall.
Judge Walker holds that the ac-
ton cannot be maintained, as Al party
cannot resort to new and independ-
ent action when relief can be had by
proceedings in the original cause.
This is especially so when the law pre-
scribes what the remedy shall be and
how it shall be enforced.
The question in the case is stated
by Judge Walker to have been
covered his damages in the action i'll
the nature of quo warranto in which
his right to the Office of solicitor was
established, or whether he could main
tain a separate action, such as this
one, and recover his damages therein.
In the first judgment there was no
reference to the plaintiffs right to
recover any of the fees of the office,
nor did the plaintiff ask for any refer
ence or. any inquiry to ascertain or
assess his damages. The judgment
was simply that he was entitled to the
office. and that he recover possession
of the same and his costs.
1t is now held that if he could only
have his damages assessed by refer
ence or inquiry in the first suit, it
would seem perfectly clear that the
Judgment in that suit operates as
res jGdicata and is complete bar TO
his right of recovery in this case, as
he permitted O. final judgment to be
entered in that action without having
his damages assessed.