Blackwell v. City of Gastonia

• Decision Date: 11 May 1921
• Docket Number: 441.
• Citation: 107 S.E. 218,181 N.C. 378
• Parties: BLACKWELL v. CITY OF GASTONIA.
• Court: North Carolina Supreme Court

107 S.E. 218

181 N.C. 378

BLACKWELL v. CITY OF GASTONIA.

No. 441.

Supreme Court of North Carolina

May 11, 1921

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

Action by George F. Blackwell against the City of Gastonia. From a judgment of nonsuit, plaintiff appeals. Affirmed.

This is an action instituted in the justice's court on the 16th day of August, 1920, to recover the sum of $24 paid by him to the city of Gastonia as a license tax imposed by said city for the business of operating one automobile for hire in said city, for the fiscal year beginning June 1, 1919, to June 1 1920. The amount of tax collected was $25, of which the plaintiff now seeks to recover $24, claiming that said city had no authority to impose a tax of more than $1.

It is admitted that the city of Gastonia is a municipal corporation, the same being chartered under chapter 199 Private Laws of 1913, section 22 of which provides as follows:

"The board of aldermen of the city of Gastonia, in addition to the powers of taxation heretofore granted, shall be and they are hereby empowered to levy and collect an annual privilege or license tax on all trades, professions, agencies, business operations, exhibitions, and manufactories in the said city," etc.

Also Public Laws of 1917, chapter 136, subchapter V, section 1, subsection (jj), provides that all cities and towns are authorized "to license and regulate all vehicles operated for hire in the city." In pursuance of this authority the said city of Gastonia passed and adopted the revenue ordinance, and collected the said tax of $25 from the plaintiff, Blackwell, on the 10th day of June, 1919, and issued to him the license which is set forth in full in the record, and dated June 10, 1919.

Blackwell applied for said license and made no protest, and no threats were made to force him to pay the same. The plaintiff, Blackwell, made no demand upon the defendant for the return of said tax until the 1st day of June, 1920, almost a year after payment of the same.

His honor held the plaintiff was not entitled to recover and entered judgment of nonsuit, and plaintiff excepted and appealed.

George W. Wilson, of Gastonia, for appellant.

P. W. Garland, of Gastonia, for appellee.

ALLEN J.

This action had been brought because of the decision in State v. Fink, 179 N.C. 712, 103 S.E. 16, in which it was held that municipal corporations did not have authority, under the statute then in force, to charge a license tax on motor vehicles greater than $1, and under that decision the tax of $25 paid by the plaintiff was illegal; but it does not follow necessarily that the plaintiff can maintain this action to recover the tax so paid. Taxation being essential to the maintenance and administration of government, the courts are slow to admit claims, which hinder the collection of taxes or deprive the government of the benefit of them, and usually the legislative branch regulates when and how actions may be brought relating to controversies in regard to taxes.

Pursuant to this policy the General Assembly, as far back as 1887, enacted that demand for the return of taxes must be made within 30 days after payment, and it was held in Railroad v. Reidsville, 109 N.C. 497, 13 S.E. 865, and Teeter v. Wallace, 138 N.C. 264, 50 S.E. 701, that the statute applied to all taxes, that the remedy provided was exclusive, and that a failure to make demand within the time prescribed was fatal to the right to maintain an action to recover the tax.

The present statute (C. S. § 7979) is not in the same language used in 1887, but the same purpose prevails, the same relief is afforded the taxpayers, and it would seem to be broad and comprehensive enough to cover all taxes, and, if so, the plaintiff cannot recover, because he did not demand the return of the tax within 30 days after payment.

But, if the tax which ...