E. B. Ficklen Tobacco Co. v. Maxwell
| Decision Date | 09 November 1938 |
| Docket Number | 306. |
| Parties | E. B. FICKLEN TOBACCO CO. v. MAXWELL, Commissioner of Revenue. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; J. Paul Frizzelle, Judge.
Action by the E. B. Ficklen Tobacco Company against A. J. Maxwell Commissioner of Revenue for the state of North Carolina, to test the validity of the Scrap Tobacco Act and to recover a license tax paid thereunder. From a judgment dismissing the action, plaintiff appeals.
Affirmed.
The Scrap Tobacco Act providing that any person, firm, or corporation, engaged in buying and selling scrap tobacco shall pay to state an annual license tax of $1,000 for each county in which the business is carried on, is not unconstitutional as not being uniform in its application since statute provides that it is to apply uniformly and equally. Pub.Laws 1937, c. 414.
Action under Uniform Declaratory Judgment Act (Chapter 102, Section 16 of the Public Laws 1931), to test the validity of Chapter 414, 1937 Public Laws of North Carolina-"An Act to Provide a Tax on Scrap Tobacco or Untied Tobacco and to License the Buyers."
The Agreed Statement of Facts is as follows:
"The plaintiff and the defendant agree that the facts out of which this controversy arose are undisputed and are as follows, to-wit:
1. The General Assembly of North Carolina at its regular Session in 1937, enacted Chapter 414 of the Public Laws of 1937, commonly known as the Scrap Tobacco Act, and said Act contained, among others, the following provisions
2. The plaintiff, E. B. Ficklen Tobacco Company, was, prior to, and has been since the passage of the aforesaid Act, a corporation duly chartered and organized under the laws of the State of North Carolina, and engaged in the purchase of leaf tobacco.
3. The plaintiff, in the Fall of 1937, in the usual course of its business, purchased in Pitt County, North Carolina, at various times and places various lots of scrap or untied tobacco, such scrap or untied tobacco consisting of lots of parts of leaves of tobacco or lots in which parts of leaves of tobacco were commingled with whole leaves of tobacco.
4. That there was no rule or regulation of the Tobacco Warehouses in Pitt County preventing the offering for sale at auction on such Tobacco Warehouse floors scrap or untied tobacco at the time the purchases mentioned in Section 3 hereof were made, but no scrap or untied tobacco was sold at auction on the Tobacco Warehouse floors of the Tobacco Warehouses operating in Pitt County in 1937. That no purchases of scrap or untied tobacco were made by the plaintiff at auction sale on the Tobacco Warehouse floors in Pitt County in 1937.
5. Acting under the provisions of the Act aforesaid, a license tax of a $1,000.00 was assessed and demanded from the plaintiff by the defendant, acting in his official capacity as Commissioner of Revenue for the State of North Carolina.
6. On the ------ day of October, 1937, the plaintiff, under written protest, paid to the defendant the sum of $1,000.00 so assessed and demanded of the plaintiff; and within apt time, to-wit: thirty days from the date of payment, made written demand upon the defendant for the return of the $1,000.00 license tax paid as aforesaid.
7. The defendant, A. J. Maxwell, Commissioner of Revenue, refused and continues to refuse, prior to the commencement of this action, to refund said license tax of $1,000.00.
8. That the plaintiff, before commencing said action, waited the statutory time, ninety days, before instituting this action for the recovery of the said $1,000.00 license tax.
Upon the foregoing facts the plaintiff and the defendant expressly waive a jury trial and agree that if the Court shall be of the opinion that said license tax of $1,000.00 was properly assessed, demanded and collected, then judgment shall be entered declaring said tax to have been lawfully assessed, demanded and collected, and shall dismiss this action at plaintiff's cost; but if the Court shall be of the opinion upon the foregoing facts that the assessment, collection and payment of said tax was not warrranted by law or that the provisions of said Act levying said tax are unconstitutional, then it shall render judgment in favor of the plaintiff and against the defendant for the recovery of the said $1,000.00, with interest thereon from the date of the payment of said taxes and for the cost of this action.
Both the plaintiff and the defendant reserve the right to except to such judgment as may be entered by the Court and to appeal therefrom to the Supreme Court. It is agreed that this cause may be heard out of term at Snow Hill, N.C. This May -, 1938.
J. C. Lanier and Albion Dunn, for Plaintiff.
Harry McMullan, Atty. Gen. and T. W. Bruton Asst. Atty. Gen. for Defendant."
The judgment of the Court below was as follows:
"This cause coming on to be heard before the undersigned Judge of the Superior Court at Snow Hill, North Carolina, on Saturday, July 2, 1938, by consent of attorneys for the plaintiff and defendant, and the case having been heard upon an agreed statement of facts and stipulation that the same might be heard by the undersigned Judge at this time and place; and the case having been fully argued by J. Con Lanier and Albion Dunn, Attorneys for the plaintiff, and Harry McMullan, Attorney General, Attorney for the defendant; and the same having been fully considered by the Court, and the Court being of the opinion that Chapter 414, Public Laws of 1937, entitled 'An Act to Provide a Tax on Scrap Tobacco or Untied Tobacco and to License the Buyers', is in all respects constitutional and valid, and that under the agreed statement of facts submitted to the Court in this...
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