Bethlehem Motors Corp. v. Plynt

• Decision Date: 05 November 1919
• Docket Number: (No. 355.)
• Court: North Carolina Supreme Court
• Parties: BETHLEHEM MOTORS CORPORATION et al. v. PLYNT, Sheriff.

100 S.E. 693

BETHLEHEM MOTORS CORPORATION et al.

v.PLYNT, Sheriff.

(No. 355.)

Supreme Court of North Carolina.

Nov. 5, 1919.

Appeal from Superior Court, Forsyth County; Bryson, Judge.

Suit by the Bethlehem Motors Corporation and others against George W. Flynt, Sheriff of Forsyth County. Decree for defendant, and plaintiffs appeal. Affirmed.

It appears from the facts found by consent and from the admissions, affidavits, and pleadings in the cause, that the plaintiff, the Bethlehem Motors Corporation, is engaged in the manufacture of Bethlehem trucks in Pennsylvania, and that of the other plaintiffs the National Motor & Vehicle Company is engaged in the manufacture of the National automobile in Indiana; the W. Irving Young & Co. is a corporation of Maryland; that the Liberty Motors Corporation is incorporated in this state with its office in Winston; and that the National Motor Company is also incorporated in this state with its principal office in Greensboro. The two companies last named represent W. Irving Young & Co. as their agents at Winston and Greensboro.

Under authority of Laws 1917, c. 231, § 72, the sheriff of Forsyth levied on a National motorcar, and the sheriff of Guilford upon a Bethlehem truck, for nonpayment of the license tax for selling under above section. The plaintiffs sued out a restraining order against the sheriff of Forsyth from selling the motorcar and against the sheriff of Guilford from selling the Bethlehem truck. From the dissolution of said restraining order the plaintiffs appealed.

J. B. Alexander, of Winston-Salem, for appellants.

Jones & Clement, of Winston-Salem, for appellee.

The Attorney General and Frank Nash, Asst. Atty. Gen., for the State.

CLARK, C. J. The facts being practically admitted, the real question before the court is whether section 72, c. 231, Laws 1917, is constitutional.

As found by the court, the trucks and automobiles consigned to the Liberty Motor Corporation and the National Motor Company by the other plaintiffs are sold direct by such consignees from their storage warehouses in this state. They are consigned to them forthat purpose and not to be used exclusively as samples or for demonstration purposes, and the court finds from the testimony that purchasers were obtained here by the said consignee companies, the cars and trucks on hand being used for demonstration, and the sales were made direct from their warehouses in this state.

Under such circumstances, the goods after reaching the storage warehouse in this state were not in interstate commerce. Sewing Machine Co. v. Brickell, 233 U. S. 304, 34 Sup. Ct. 493, 58 L. Ed. 974. Again, where coal was mined in Pennsylvania and sent by water to New Orleans and sold on the open market on account of the mine owners in Pennsylvania, or even if the coal was not landed in New Orleans, but was sold and transferred there to another vessel bound to a foreign port, the coal was intermingled with property in Louisiana, and the sale was not an interstate transaction. Brown v. Houston, 114 U. S. 622, 5 Sup. Ct. 1091, 29 L. Ed. 257. There was no error in the exception that the judge did not find that this was interstate commerce.

It is assigned for error that the words in the statute "manufacturers of automobiles" do not include "motortrucks." The definition of automobile is given in 28 Cyc. 24, as follows (which we think is correct):

"An automobile in the sense in which the term has come to be commonly understood, is a motor vehicle, usually propelled by steam, electricity or gasoline, and carrying its motive power within itself. It falls within the appellation of 'carriage' and 'vehicle.'"

Said section 72, c. 231, Laws 1917, imposed license taxes on every manufacturer or other person engaged in the business of selling automobiles in this state. The question intended to be raised by this appeal is the constitutionality of the second proviso in that section:

"Provided further, that if the officer, agent or representative of such manufacturer shall file with the state treasurer a sworn statement showing that at least three-fourths of the entire assets of the said manufacturer of automobiles are invested in any of the following securities or property, viz., bonds of the state of North Carolina or of any county, city or town of said state, or any property situated therein, and returned for taxation therein, the taxes named in this section shall be one-fifth of those named."

The plaintiffs allege that by reason of this proviso the act was in violation of the federal Constitution because:

I. It is in conflict with the interstate commerce clause (article 1, § 8[3]).

II. It is in conflict with article 4, § 2, in that it deprives them of the privileges and immunities of other citizens.

III. It is in conflict with section 1 of amendment 14, in that it denies the plaintiffs the equal protection of the laws.

First. Section 72 is not obnoxious to the interstate commerce clause. In New York v. Roberts, 171 U. S. 658, 19 Sup. Ct. 58, 43 L. Ed. 323, the court says:

"It must be regarded as finally settled by frequent decisions of this court that, subject to certain limitations as respects interstate and foreign commerce, a state may impose such conditions upon permitting a foreign corporation to do business within its limits as it may judge expedient; and that it may make the grant or privilege dependent upon the payment of a specific license tax, or a sum proportioned to the amount of its capital used within the state."

In regard to the contention that the statute discriminated against foreign corporations, the court said:

"If the object of the law in question was to impose a tax upon products of other states, while exempting similar domestic goods from taxation,...