Pullen v. The Comm'rs of Wake County

• Decision Date: 31 January 1872
• Court: North Carolina Supreme Court
• Parties: R. S. PULLEN v. THE COMMISSIONERS OF WAKE COUNTY.

66 N.C. 361

R. S. PULLEN

v.THE COMMISSIONERS OF WAKE COUNTY.

Supreme Court of North Carolina.

January Term, 1872.

1. The General Assembly have an unlimited right to tax all persons domiciled within the State, and all property within the State, except so far as this right has been limited by the Constitution, either by express words or by necessary implication.

2. The General Assembly has under this general power, the right to tax legacies, collateral descents, &c., and when such tax is imposed upon the succession, or on the right of the legatee to take under the will, the power is not re strained or limited by the provisions of the Constitution relative to the tax on property.

3. Therefore the Revenue Act of 1870-'71, imposing a tax on legacies, &c., is not unconstitutional, yet it cannot be retrospective in its character.

This was a petition to correct the tax list for the year 1871, heard before Watts, Judge, at the Special Term of Wake Superior Court, January. 1872.

The petition was heard before the County Commissioners of Wake.

They refused to grant the relief prayed for, and the petitioner appealed to the Superior Court.

Upon the hearing before Judge Watts, the order of the Commissioners was reversed, and an order made to correct the tax list. From this order, &c. The Commissioners appealed to the Supreme Court.

The facts upon which the application is founded, are sufficiently stated in the opinion of the Count.

Moore & Gatling, for petitioner .

Attorney General and Badger, for the Commissioners .

RODMAN, J.

Penelope Smith died in October, 1870, leaving a will by which she bequeathed $30,000 of personal property to strangers., and made the plaintiff her executor.

The executor presented his complaint to the Commissioners for Wake county, that the said property had been assessed for taxation for the year 1871, at the rate of 2 1/2 per cent on its value for a tax to the State, and a like rate for the county; and prayed that he might be relieved of the tax. The Commissioners refused his demand, whereupon he appealed to the Superior Court, where the Judge corrected the tax list by striking out the tax altogether, from which order the Commissioners appealed to this Court.

Supposing that the Legislature has a constitutional right to impose a tax on legacies to other than lineal descendants, we think His Honor was wrong in striking out the tax altogether.

It is clear that the legacy cannot be taxed under the Act of April 1871, (Acts 1870-'7I, ch. 227,) which does not profess to be retrospective, and could not constitutionally be so. “Constitution, Bill of Rights, sec. 32.” If taxable at all, it was so under the Act of 1869-'70, ch. 108, which was in force at the death of the testatrix, and imposed a tax of one per cent. on the value of the legacy. It does not appear that the Commissioners had imposed any tax on legacies before the death of the testatrix. They were not entitled to impose any afterwards to effect her estate. So that the only question presented, is upon the validity of the tax of one per cent. imposed by the Act of 1869-'70.

It will be assumed in the present case as an axiom not needing discussion that the Legislature has an unlimited right to tax all persons domiciled within the State, and all property within the State, except so far as that right has not been limited either by express words of the State Constitution, or by plain implications. The power to tax is an attribute of sovereignty so vital and so necessary to the existence of a State, that it cannot be held to have been forbidden as to any particular subject, except where the policy obviously commends itself to our sense of justice, or is most clearly expressed. Mc Cullouch v. State of Maryland, 4 Wheat. 316.

It is contended, however, that this sovereign right has been so limited by that provision of the Constitution which...