Gatlin v. The Town of Tarboro

• Decision Date: 31 January 1878
• Court: North Carolina Supreme Court
• Parties: T. H. GATLIN and others v. THE TOWN OF TARBORO.

78 N.C. 119

T. H. GATLIN and others

v.THE TOWN OF TARBORO.

Supreme Court of North Carolina.

January Term, 1878.

MOTION to vacate an Injunction to prevent the collection of certain taxes heard at Chambers on the 24th of December 1877, before Moore, J.

The action in which this motion was made, was brought by the plaintiffs on behalf of themselves and all the other tax payers, &c., to restrain the collection of a certain tax by the officers of the Town of Tarboro. By an Act of 1876-'77, ch. 228, which recites that “the commercial interests of the Town require extra police and watch,” the Legislature enacts that on the first days of April, July, October and January, in each year, every trader doing business in the Town shall pay a tax of one dollar for every $1,000 worth of goods sold by him during the preceding quarter, to be collected by the officers of the Town, and accounted for as other taxes are. The payment of this tax is resisted on several grounds:--

1. That as the traders upon whom alone it is imposed, had paid or were liable to pay, in common with other property owners in the Town, an ad valorem tax on their property, and had also paid the tax for a license to carry on their respective trades, the additional tax in question is not uniform, and that on general principles as well as by Art. V. § 3 of the State Constitution, it is beyond the power of the Legislature, and so, void.

2. That the Act is private, and having been passed without any notice of the application as required by the Const. Art. II § 12, it is therefore void. The fact that no notice such as the Constitution requires, was given, is admitted by the parties in their case agreed, but does not otherwise appear.

His Honor being of opinion with the plaintiffs, gave judgment that the injunction be made perpetual, and the defendant appealed.

Mr. J. L. Bridgers, Jr., for plaintiffs .

Mr. Fred. Phillips, for defendant .

RODMAN, J. (After stating the case as above.)

As to the first point: The Constitution, Art. VII, § 7, forbids Cities and Towns from levying taxes except for their necessary expenses, unless by a vote of the qualified voters thereof. Whether this section by implication gives to such corporations the power to levy taxes for their necessary expenses, without any grant of such power from the Legislature, it is unnecessary to inquire. For if that be so, inasmuch as the Constitution imposes no restriction on the power except as above, but contents itself with requiring the Legislature to restrain its abuse, (Art. VIII § 4,) the power of a Town to tax for its necessary expenses in the absence of any legislative restraint would be absolute and uncontrolled, except by the uncontested maxims of justice and morality found in the common law. In this case, the Legislature has given the power to collect the tax in question, and unless the Legislature was prohibited from granting the power, it is immaterial whether the Act be regarded as a grant of the power, or as a restraint on the general power to tax impliedly given by the Constitution.

Taking the view of the question best for the plaintiffs, and assuming the Act of 1876-'7 to be a legislative grant of the power to tax, is there anything in the Constitution, or in any admitted maxim of our law, prohibiting the Legislature from making the grant of this particular power to tax?

It must be admitted that there is nothing in the Constitution expressly limiting the power of the Legislature to give to Towns the power to tax their inhabitants, except that above stated, to-wit, that it must be for a necessary expense, &c.

It is argued for the plaintiffs, however, that as the power of the Legislature to tax for State purposes is regulated, the power of the Legislature in granting the power of taxation to Towns,??can only extend to granting it subject to like regulations. This may follow or not. But if we concede that the Town of...