Brooks & Taylor v. Tripp
| Decision Date | 26 April 1904 |
| Parties | BROOKS & TAYLOR v. TRIPP et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Brunswick County; Ferguson, Judge.
Suit by Brooks & Taylor against L. C. Tripp and others. From a decree in favor of defendants, plaintiffs appeal. Affirmed.
Laws 1903, p. 723, c. 414, is entitled "An act to protect and promote the shellfish industry of B." It provides for the enforcement of the laws protecting shellfish during the "close season"; the Governor being authorized to appoint a shellfish commissioner at a prescribed salary, to be paid by a tax levied on oysters and clams "shipped out of the county," and, if any surplus remains, the county treasurer is required to pay the same into the state treasury. Held, that the tax so imposed was not for the purpose of raising revenue for the state treasury, but was merely to pay for the enforcement of the statute, which was not, therefore, unconstitutional on the ground that the tax was not uniformly laid.
Russell & Gore, for appellants.
Cranmer & Davis, for appellees.
This is an action to restrain the execution of chapter 414, p. 723, Laws 1903; its unconstitutionality being averred on the ground that it lays a tax of three cents per bushel on clams two cents per bushel on oysters in the shell, and two cents per gallon on shucked oysters "shipped out of said county," and not also upon the shellfish situate, dug or consumed within said county, and that the said tax amounts to an impost or export tax, and is not levied for the purpose of inspection.
The act in question is entitled "An act to protect and promote the shellfish industry of Brunswick." If such is its true purport and object, it is within the police power of the state, and a tax levied for such object would be legal although laid only upon shellfish in that county. If levied upon shellfish in that county only for the purpose of raising revenue for the state treasury, it would be forbidden by the Constitution, because not laid by "uniform rule." State v. Moore, 113 N.C. 697, 18 S.E. 342, 22 L. R. A. 472. But the presumption is that a statute is constitutional unless the contrary clearly appears. Sutton v. Phillips, 116 N.C. 502, 21 S.E. 968. An examination of the statute shows that for the purpose of enforcing the laws and regulations to protect shellfish, and especially the prohibition of disturbing their beds during the prescribed "close season," the Governor is authorized to appoint a shellfish commissioner at a salary of $400 per annum, and such commissioner is empowered to appoint "two or more" sub-shellfish commissioners to aid him in his work, who shall receive $25 each per month while so employed, and that the fund raised by the above tax is to be paid to the county treasurer, and the surplus (if any) shall be paid by him into the state treasury, after "first deducting" the salaries of the aforesaid officers. It is further provided that such officers shall receive no compensation whatever, except out of said funds. From the title and general purport of the act, and especially the provision for the appointment of an unlimited number of deputies, it is clear that there was no expectation or intention to raise any money for the state treasury (and none has been paid into the state treasury from this source), but that the object was solely to provide salaries for those engaged in enforcing the regulations for the protection of shellfish in Brunswick county. It must clearly appear that the object was not that recited, but was in fact to raise revenue for the state, before the act can be declared unconstitutional. The statute may be unguarded in not restricting the number of sub-shellfish commissioners; but the Legislature may have thought this was sufficiently done by providing that the officers should receive no compensation, except from this fund. If there is a defect in this regard, making the act liable to abuse, this is a matter for legislative correction; but it does not render the statute unconstitutional.
The tax required for the enforcement of a police regulation is not a tax, within the meaning of our Constitution, requiring uniformity and equality of taxation, but "is a proper mode of providing for the compensation" of an officer designated to enforce such regulation in the prescribed territory, "and the payment of any expenses incidental to this" duty. State v. Tyson, 111 N.C. 687, 16 S.E. 238. Local legislation in the nature of police regulation has always been sustained. See, as to the sale of liquor, sale of seed cotton, fence laws, cattle running at large, working public roads, and such legislation for many other purposes, the authorities collected in State v Sharp, 125 N.C. 632, 34 S.E. 264, 74 Am. St. Rep. 663. In...
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