Powell v. Maxwell
| Decision Date | 15 June 1936 |
| Citation | 186 S.E. 326,210 N.C. 211 |
| Parties | POWELL v. MAXWELL, State Commissioner of Revenue. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; M. V. Barnhill, 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.
Statute imposing tax for privilege of using motor vehicle within state held not violative of due process provision of Constitution as applied to automobile purchased outside state and then brought into state, since tax was for privilege of using streets and highways within state, and not attempt to tax transactions outside state (Code 1935, § 7880(156)e subsecs. 12 and 13; Const.U.S.Amend. 14).
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 coupé 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 fixed in subsection 12 of said section 404 ; 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.
The portion of the act under consideration is subsection 13, section 404, Public Laws 1935, and reads as follows: N.C.Code of 1935 (Michie), 7880(156)e, subsec. 13.
The foregoing subsection 13 was administratively construed to be limited to a maximum tax of $10 upon any single article of merchandise as is fixed in the preceding subsection 12, which reads as follows: "The maximum tax that shall be imposed upon any single article of merchandise shall be ten dollars ($10), and as an additional means of enforcement of the payment of the tax herein levied the department of revenue shall not issue a license plate or a certificate of title for any new or used motor vehicle sold by any merchant or licensed dealer until the tax levied for the sale of same under this act has been paid, or a certificate duly signed by a licensed dealer is filed at the time the application for license plate or title is made for such motor vehicle; such certificate to be on such form as may be prescribed by the commissioner of revenue and that such certificate shall show that the said licensed dealer has assumed the responsibility for the payment of the tax levied under this act and agrees to report and remit the tax in his next regular monthly sales tax report required to be filed under this act." N.C.Code 1935 (Michie) 7880 (156)e, subsec. 12.
The position taken that the portion of the act under consideration is in contravention of the provision of the Federal Constitution, that "No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports," Article 1, § 10, cl. 2, is untenable, since this provision relates to foreign commerce and has no reference to interstate commerce. Woodruff v. Parham, 8 Wall., 123, 19 L.Ed. 382; Pittsburgh & S. Coal Co. v. Louisiana, 156 U.S. 590, 15 S.Ct. 459, 39 L.Ed. 544.
The position taken that the portion of the act under consideration impinges the provision of the Federal Constitution that "The Congress shall have Power * * * to regulate Commerce * * * among the several States," article 1, § 8, cl. 3, is likewise untenable, for the reason that the tax levied is not upon articles in interstate commerce, since it does not become operative until after the purchase of the automobile has been consummated and until after it has been brought into North Carolina; the tax becomes effective only when the automobile has come to rest within the state, and then without regard to where it...
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