Cox v. Brown

• Decision Date: 30 October 1940
• Docket Number: 384.
• Parties: COX v. BROWN, City Treasurer.
• Court: North Carolina Supreme Court

11 S.E.2d 152

218 N.C. 350

COX v. BROWN, City Treasurer.

No. 384.

Supreme Court of North Carolina

October 30, 1940

Facts. The plaintiff, a resident of the City of Concord, during the fiscal year beginning June 1, 1939, and expiring May 31 1940, owned and operated a passenger motor vehicle for hire being commonly known as a "taxi". That the business of the plaintiff consisted in transporting passengers for compensation from place to place over the streets and highways within the City of Concord as well as from place to place outside the City of Concord. For the year 1939, and for the year 1940, the plaintiff's for-hire passenger vehicle was licensed by the State of North Carolina as such and the State of North Carolina collected from the plaintiff for the said years of 1939 and 1940 a for-hire passenger vehicle licensed at the rate provided by law for such for-hire passenger vehicle. The tax levied and collected was at the rate of $1.90 per hundred pounds of weight as provided in Public Laws of 1937, Chapter 407, Section 51(c). On the 8th day of June 1939, the Board of Aldermen of the City of Concord passed an ordinance entitled "An Ordinance to Amend the Privilege Tax Ordinance of the City of Concord Relating to the Taxing of Motor Vehicles for Hire." On the 29th day of June 1939, the plaintiff paid to the City of Concord, under written protest, the sum of $25 in payment of taxi license levied under the ordinance adopted May 11, 1939 and amended June 8, 1939, for the year beginning June 1 1939, and expiring May 31, 1940, and the City of Concord then issued and delivered to the plaintiff a tin plate bearing the words and figures as follows--"Concord--Car for Hire--Expires May 31, 1940--20." The said tin plate was similar to the ordinary motor vehicle license plate issued by the State of North Carolina, and that the plaintiff was required to attach the said tin plate to his for-hire motor vehicle and to keep the same on his said vehicle during the life of the license. On the 26th day of July, 1939, the plaintiff made written demand upon the defendant, Waller D. Brown, Treasurer of the City of Concord, for refund of $25 taxi license paid on the 29th day of June, 1939. The City of Concord failed and refused to refund the said sum to the plaintiff and notified the plaintiff that the same will not be refunded by order of the Board of Aldermen of the City of Concord. On the 29th day of May 1940, this action was instituted before C. A. Robinson, Justice of the Peace, to recover said tax and was submitted and heard on agreed statement of facts as appears in the record. From the judgment in favor of the plaintiff, rendered by the Justice of the Peace, the defendant appealed to the Superior Court, and from a judgment in favor of plaintiff, rendered in the Superior Court, the defendant excepted, assigned error and appealed to the Supreme Court. In addition to the payment of the $25 license, the plaintiff also paid $1 license on his for-hire passenger motor vehicle; that the said tax of $1 was not paid under protest, its refund has not been demanded and it is not involved in this action.

E. T. Bost, Jr., of Concord, for plaintiff.

Hartsell & Hartsell and Waller D. Brown, all of Concord, for defendant.

CLARKSON Justice.

The only question for us to determine on this appeal is: Has the City of Concord the authority to levy a license or privilege tax of $25 on each taxi-cab or motor vehicle for hire owned or operated by a resident within the City of Concord? We think not.

The defendant contends that the City of Concord has the power under the provisions of Private Laws of 1907, Chap. 344, Sec. 50(d) and also under the General Law, C.S. § 2677, to levy the tax,

The plaintiff's for-hire passenger vehicle was, during the year of 1939, and during the year of 1940, licensed by the State of North Carolina as such: During the said years, the plaintiff paid to the State of North Carolina a license fee on his for-hire passenger vehicle at the rate of $1.90 per hundred pounds of weight.

The plaintiff contends that the City of Concord does not have the power to levy the tax in question. That power has been withdrawn from the City of Concord as well as from all other cities and towns within the State.

Public Laws of 1937, Chapter 407, provides: "Sec. 61. Taxes Compensatory. (a) That all taxes levied under the provisions of this Act are intended as compensatory taxes for the use and privileges of the public highways of this State, and shall be paid by the commissioner to the State Treasurer, to be credited by him to the State Highway Fund; and no county or municipality shall levy any license or privilege tax upon the use of any motor vehicle licensed by the State of North Carolina, except that cities and towns may levy not more than one dollar ($1.00) per year upon any such vehicle resident therein." "Sec. 145. Repealing Clause. That all laws and clauses of laws in conflict with the provisions of this Act or laws or clauses of laws providing otherwise for the subject matter of this Act are hereby repealed." (Italics ours.)

The City of Concord, by and through the Board of Aldermen, on the 8th day of June, 1939, passed the following ordinance: "An Ordinance: To Amend the Privilege Tax Ordinance of The City of Concord Relating To The Taxing of Motor Vehicles For Hire. The Board of Aldermen of the City of Concord do ordain: Section 1. That section 9 of the Ordinance Levying, Assessing, Imposing and Defining the License and Privilege Taxes of the City of Concord, for the year beginning June 1, 1939, and ending May 31, 1940, heretofore ordained on the 11th day of May 1939, be and the same is hereby amended by striking out the words and figures 'motor vehicles for hire: Automobiles bonded $25.00; Trucks owned or operated in the City, $25.00' and by inserting in lieu thereof the following: 'Motor Vehicles for hire': 'Every person, firm or corporation engaged in the business of operating an automobile or automobiles for hire, commonly designated as taxi-cabs, shall apply for and obtain from the Tax Collector of the City of Concord a city privilege license for the purpose of engaging in such business in the City of Concord, and shall pay for such privilege, for each automobile so owned or operated, a tax of $25.00. And every person, firm or corporation engaged in the business of operating motor trucks for hire in the City of Concord shall apply for and obtain a city privilege license for the purpose of engaging in such business, and shall pay for such privilege, for each truck owned or operated, a tax of $25.00.' Section 2. That this ordinance shall take effect and be in force from and after its publication."

As authority to enact the above ordinance, the defendant introduced in evidence the following Act relating to the City of Concord: Private Laws of 1907, Chap. 344, Section 50. "That among the powers conferred on the board of aldermen are these: *** (d) To regulate, control, tax and license all franchises, privileges, businesses, trades professions, callings or occupations which are now or may hereafter be taxed by the laws of the State of North Carolina, by imposing a franchise, license or privilege tax upon each and every of the aforementioned subjects in such amount as the aldermen may deem proper, not to exceed one thousand dollars". Private Laws of 1925, Chapter 104, Section 2. "That chapter three hundred and forty-four of the Private Laws of one thousand nine hundred and seven be further amended by adding after section eighty-nine a new section to be known as 'Section eighty-nine a' to read as follows: 'Sec. 89a. In addition to the powers and privileges hereinbefore conferred, the city of Concord shall have all the powers incident and usual to corporations of like character under the general laws of the State; and the amounts of tax named above which the city is authorized to levy and collect shall only be a guide and shall...