Brunswick-Balke-Collender Co. v. Mecklenburg County

• Decision Date: 18 May 1921
• Docket Number: 449.
• Citation: 107 S.E. 317,181 N.C. 386
• Parties: BRUNSWICK-BALKE-COLLENDER CO. v. MECKLENBURG COUNTY.
• Court: North Carolina Supreme Court

107 S.E. 317

181 N.C. 386

BRUNSWICK-BALKE-COLLENDER CO. v. MECKLENBURG COUNTY.

No. 449.

Supreme Court of North Carolina

May 18, 1921

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Action by the Brunswick-Balke-Collender Company against Mecklenburg County. From judgment for defendant, plaintiff appeals. Affirmed.

The action is instituted by plaintiff against Mecklenburg county to recover the sum of $1,010.60 paid by the plaintiff to the sheriff under protest, to prevent a sale of certain personal property upon which plaintiff held a chattel mortgage, the said sum being a license tax alleged to have been due to state and county by the Mecklenburg Amusement Company for the year commencing June 1, 1918, and expiring May 31, 1919. The facts in evidence tended to show that plaintiff, on October 10, 1917, sold to one Robert Welch 20 pool tables, etc taking a mortgage or contract for conditional sale, duly registered, to secure purchase price; that some time thereafter said Welch sold his interest in said property to the Mecklenburg Amusement Company, and this company operated said pool tables at Liberty Park, outside the corporate limits of the city of Charlotte, from some time the latter part of 1917 until about the 1st of February, 1919; that the sheriff collected the license tax from the company for the year ending May 31, 1918, though the company operated said tables, etc., to last of January or 1st of February, 1919, as stated, without having paid the tax or obtained license or applied for same to the county commissioners or otherwise that the levy by the sheriff was for the unpaid tax, and the plaintiff, holding the mortgage or lien to secure the debt paid same under protest, having made proper demand upon treasurer of the county and the State Treasurer as the statute requires, instituted this action to recover the amount. It further appeared that, on obtaining possession of the property, plaintiff caused it to be sold at public auction under the terms of the mortgage or lien, and bought the same in at $2,200, and plaintiff's indebtedness at the time of sale, and secured by the instrument, was $2,726.96. Plaintiff admitted that the property was worth at least the $2,200, and on an issue submitted the jury fixed the market value of same at $3,750.

On these the facts pertinent, the court entered judgment that the defendant go without day, and plaintiff excepted and appealed.

J. Laurence Jones and A. B. Justice, both of Charlotte, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for appellee.

HOKE J.

Plaintiff has taken the proper course to test his right to relief. The law on the subject (C. S. § 7979) making provision that where "a person claims that a tax or assessment charged against him is invalid, he shall pay, under written protest, and on written demand upon the treasurer of the county or the state within 30 days, and a failure to refund within 90 days, he may maintain his action against the county, including in his demand both the state and county tax," and, in pursuing this course, it is not contended that the tax, if valid, should not prevail over plaintiff's lien, or that there should be any abatement by reason of the portion of the year unexpired at the time the pool tables were closed down. Here also the statute is expressly to the contrary. C. S. §§ 7776-7786. Plaintiff, however, bases his right to recover on the ground that the statute imposing the tax is unconstitutional and void, and this for the reason chiefly that it confers on the county commissioners the arbitrary power to grant or withhold the license required to operate these tables in the manner designated. The statute in question (2 C. S. c. 131, art. 3, title "Taxation"), imposes an annual tax of $25 on all billiard and pool tables, bowling alleys, and all alleys of that kind kept for public use, requires a license for that purpose to be issued by the sheriff, makes it a misdemeanor to operate without a license, and, in section 7827, contains, among others, the proviso that the sheriff shall not issue a license to any person or corporation to maintain such billiard or pool table or bowling alley for public use outside of any incorporated city or town except with the approval of the county commissioners--

"and all applications for such licenses are hereby required to be filed with the county commissioners at least 10 days before being acted upon, and notice thereof published in some newspaper published in the county once a week for two weeks, or posted at three conspicuous places in the community where the license is to be exercised for two weeks prior to the action of the county commissioners thereon."

If it be conceded that this proviso, on which plaintiff bases his principal objection to the statute is void because conferring arbitrary power, it is only a police regulation in reference to a license to operate, and both that and the criminal feature of...