Redmond v. Town of Tarboro

• Decision Date: 03 March 1890
• Citation: 10 S.E. 845
• Parties: REDMOND v. TOWN OF TARBORO.
• Court: North Carolina Supreme Court

10 S.E. 845

REDMOND v. TOWN OF TARBORO.

Supreme Court of North Carolina

March 3, 1890

Appeal from superior court, Edgecombe county; MACRAE, Judge.

This is a controversy submitted without action, as allowed by the statute, (Code §§ 567-569,) and the following is so much of the case submitted as need be reported:

"(1) That the plaintiff, Claudia Redmond, is a resident of the town of Tarboro, and has been for a number of years. (2) That in 1888, at the time required for listing property for taxation in said town, she refused to give in to the list-taker of said town forty-three thousand three hundred and twelve dollars, which she owned in solvent credits. (3) That by an order of the board of commissioners of said town the said solvent credits were ordered to be placed by the list-taker on the list, and were ascertained from the county list-taker's list, and were accordingly returned by the town list-taker on his list for taxation in said town against the protest of the said Claudia, as was done in other like cases of solvent credits owned by persons resident in said town. (4) That of said solvent credits of plaintiff so placed upon the town list, $39,973.97 were owing by parties resident outside of the town, and such amount is secured on property not located within the limits of said town; and $3,328.03 or thereabout were owing by parties residing within and citizens of said town, with the exception of a few dollars, which she cannot accurately determine. (5) That the said board of commissioners, at their regular meeting in 1888, levied a tax of one-half of one per centum, or fifty cents on the one hundred dollars' worth of property, including solvent credits in the words of the order, 'that an assessment of fifty cents on the one hundred dollars valuation be levied on all property in the town of Tarboro, not exempt from taxation both real and personal, including all moneys, credits in bonds, stocks, joint-stock companies, or otherwise.' (6) That the tax-list for said years 1888-89 was put in the hands of John W. Cotton, tax collector for said town, who made demand upon plaintiff for the sum of $216.56, which said sum was for taxes on the solvent credits placed as aforesaid upon the list of taxables against the protest of plaintiff, at the rate levied aforesaid, and the plaintiff under protest paid the said sum for said taxes on solvent credits, and holds therefor the receipt of the tax collector. (7) That said plaintiff has made demand in writing on the defendant board for the return of said taxes, and they refused to pay over to her the same. The question presented to the court is whether the solvent credits so listed, or any part of them, are liable to the levy so made by the town of Tarboro."

The court gave judgment as follows: "It is considered and adjudged that the solvent credits listed by the plaintiff are liable to the levy as made by the town of Tarboro. It is further adjudged that the plaintiff pay the costs of this proceeding;" and the plaintiff, having excepted appealed to this court.

MERRIMON C.J., dissenting.

H. L. Staton and Jas. Norfleet, (John L. Bridgers, of counsel,) for appellant.

Gilliam & Son, for appellee.

SHEPHERD, J., (after stating the facts as above.)

The very important question presented by this appeal is whether the town of Tarboro has the power to levy a tax upon the solvent credits of its citizens. It is necessary to an intelligent discussion of the question that we should review the several decisions of this court in reference to municipal taxation, and extract from the conflict of authority and confusion in which the subject is involved the true principles governing such taxation. Section 9, art. 7, of the constitution, provides that "all taxes levied by any county, city, town, or township shall be uniform and ad valorem upon all property in the same, except property exempted by this constitution." Does this provision simply apply the rule of uniformity and equality to the particular subjects which may be selected by the legislature for taxation, or does it command that all property, of whatsoever description, shall be taxed, and taxed according to the said principles? If the latter be the correct view, and "moneys, credits, investments," etc., are embraced in the said section, it necessarily follows that all general laws, and the special provisions of the charters of these various municipalities which conflict with the said provision of the constitution, are void, and that the refinements of construction which are sought to be applied to their particular phraseology become wholly impertinent to the present discussion.

1. We will first inquire then whether the said provision of the constitution commands that all property shall be taxed. "Taxes" are defined to be burdens or charges imposed by the legislative power of a state upon persons or property, to raise money for public purposes, (Black w. Tax Titles, § 10;) and the power to levy them is one of the essential attributes of sovereignty, and is inherent in and necessary to the existence of every government, ( Knowlton v. Supervisors, 9 Wis. 418; McCulloch v. Maryland, 4 Wheat. 316.) In the absence of constitutional limitations, there is, it is said, no restraint whatever upon the legislature, and it may discriminate in favor of or against a particular class of persons or property, and pass laws in violation of every principle of just government, by an unequal distribution of the public burdens. The check upon such an abuse of power is in the influence of constituents over their representatives, and the weight of authority is that the courts have no right to interfere with this exercise of the legislative will. Thus it is seen that a wide field is open for a war between different classes of property, in that one class may be taxed to the exclusion or to the prejudice of another, and that under the forms of a free government an excited partisan legislative majority may commit wrongs against the rights of property as flagrant and oppressive as those which have disgraced the reigns of the most despotic rulers. But it is said that the general assembly will be influenced by proper motives, and will levy taxes upon a just basis. Experience in many of the states has shown that the principles of taxation should not be left to the uncertainty or caprice of successive legislatures, but that they should be fixed and immutable, and embodied in the fundamental law, under whose broad shield all property, of whatsoever species, may be equally protected. This, we think, was the purpose of the framers of our constitution in inserting therein the section referred to, as well as section 3, art. 5, relating to state taxation. No one who reads these and other provisions of the constitution will fail to be impressed with the earnest effort there made to ingraft upon our organic law the great principle of equality in taxation. "The subjects of every state ought to contribute to the support of the government as nearly as possible in proportion to their respective abilities; that is, in proportion to the revenue which they respectively enjoy under the protection of the state. The expense of government to the individuals of a great nation is like the expense of management to the joint tenants of a great state, who are all obliged to contribute in proportion to their respective interests in the estate. In the observation or neglect of this maxim consists what is called the equality or inequality of taxation." Such are the words of the author of "The Wealth of Nations," (book 4, c. 2,) quoted with approval by Judge Cooley, (Tax'n, p. 9,) and we think that they well illustrate the true spirit and purpose of our constitutional provisions upon the subject.

We are of opinion that section 9, art. 7, was not intended to apply the rules of uniformity and equality to the subjects which the legislature might alone select for taxation, but that it requires that all property shall be taxed, and taxed in accordance with the said rules. A contrary view was taken by the court soon after the adoption of the constitution, in the case of Pullen v. Commissioners, 68 N.C. 451. The charter enumerated eight subjects of taxation "beginning with real estate situate in the city, and ending with encroachments on the streets by porches," etc.; but it did not include moneys, credits, etc. The court affirmed the opinion of the superior court judge that the constitution was "intended to declare simply the manner in which municipal corporations should levy taxes, to-wit, that they should be uniform and ad valorem, and not to declare the subjects to be taxed by them." The decisions in which this case has been cited, (such as Winston v. Taylor, 99 N.C. 210, 6 S.E. Rep. 114; State v. Bean, 91 N.C. 554; Latta v. Williams, 87 N.C. 126; and perhaps others,) have reference only to the taxing of trades, professions, and the like, and, these not being property, are correctly placed within the principle declared therein. Under the construction of the constitution as declared in Pullen's Case, it would be in the discretion of the legislature to unequally distribute the burdens necessarily incident to government, and the worst species of class legislation would be tolerated. It would (says DIXON, C.J., in Knowlton v. Supervisors, 9 Wis. 422) "make the constitution operative only to the extent of prohibiting the legislature from discriminating in favor of particular individuals, and would reduce the people, while considering so grave and important a proposition, to the ridiculous attitude of saying to the legislature, 'You shall not discriminate between single individuals or corporations, but you may divide the citizens up into different classes, as *** the owners of different species or...