Powell v. Maxwell

• Citation: 186 S.E. 326,210 N.C. 211
• Parties: POWELL. v. MAXWELL, State Commissioner of Revenue.
• Decision Date: 15 June 1936
• Court: North Carolina Supreme Court

186 S.E. 326
210 N.C. 211

POWELL.
v.
MAXWELL, State Commissioner of Revenue.

Supreme Court of North Carolina.

June 15, 1936.

[186 S.E. 327]

Appeal from Superior Court, Wake County; M. V. Bamhill, Judge.

Suit by W. A. Powell against A. J. Maxwell, Commissioner of Revenue of the State of North Carolina. Judgment for defendant, and plaintiff appeals.

Affirmed.

From the allegations and admissions in the pleadings it appears that on July 9, 1935, the plaintiff, who is a resident of Rockingham county, N. C, purchased a new Oldsmobile coupe from the Wyatt Chevrolet Corporation in Danville, Va., for a price in excess of $800; that the plaintiff purchased this automobile for use upon the streets and highways of the state of North Carolina, and after returning to his home with it, applied to the defendant, the commissioner of revenue, for a license and certificate of title for said automobile; that he tendered to the commissioner all of the taxes and fees due under the laws of the state prior to the issuance of the license and certificate of title, except the tax imposed by subsection 13, section 404, chapter 371, Public Laws 1935, N.C. Code 1935 (Michie) § 7880(156)e, subsec. 13; that the amount of the tax imposed by said subsection 13, being exacted by the commissioner of revenue, was paid by the plaintiff under protest, and within 30 days the plaintiff demanded in writing that the same be refunded; that the commissioner declined to make refund of the tax paid, and this suit was thereupon instituted. In the pleadings it also appears that the tax demanded of the plaintiff was limited to $10, and that the commissioner of revenue had administratively construed and applied subsection 13, section 404, chapter 371, Public Laws 1935, as subject to the same limitations of maximum tax upon any single article of merchandise as is 5xed in subsection 12 of said section 404 (Code 1935, § 7880(156)e, subsec. 12); namely, $10.

Liability for the tax was denied upon the ground that subsection 13, of section 404, chapter 371, Public Laws 1935, being a portion of the Revenue Act of 1935, was void for the reason that it was in violation of the provisions of the Federal and State Constitutions.

The court was of the opinion that said subsection 13 did not violate the provisions of either the Federal or State Constitution, and that the tax demanded and collected was lawful, and entered judgment denying the recovery sought by the plaintiff, from which he appealed, assigning errors.

J. M. Broughton, W. H. Yarborough, Jr., and Geo. D. Vick, Jr., all of Raleigh (Gholson & Gholson, of Henderson, of counsel) for appellant.

A. A. F. Seawell, Atty. Gen., and Harry McMullan and T. W. Bruton, Asst. Attys. Gen., for appellee.

SCHENCK, Justice.

The portion of the act under consideration is subsection 13, section 404, Public Laws 1935, and reads as follows: "In addition to the taxes levied in this act or in any other law there is hereby levied and imposed upon every person, for the privilege of using the streets and highways of this State, a tax of three per cent of the sales price of any new or used motor vehicle purchased or acquired for use on the streets and highways of this State...