State v. Irvin

• Decision Date: 20 March 1900
• Citation: 35 S.E. 430,126 N.C. 989
• Parties: STATE v. IRVIN.
• Court: North Carolina Supreme Court

35 S.E. 430

126 N.C. 989

STATE v. IRVIN.

Supreme Court of North Carolina

March 20, 1900

Appeal from superior court, Lenoir county; Bryan, Judge.

Hoge Irvin was convicted for violating an ordinance of the town of Kinston imposing a privilege tax on tobacco buyers, and he appeals. Affirmed.

T. C Wooten, for appellant.

N. J Rouse, Shepherd & Shepherd, and the Attorney General, for the State.

MONTGOMERY J.

This was a criminal action tried in the superior court of Lenoir county on appeal from judgment of mayor's court of the town of Kinston. The defendant was charged with the violation of an ordinance passed by the board of aldermen of Kinston in which ordinance there was laid a privilege tax of $10 upon the defendant as a buyer of tobacco in the town. In the ordinance there was no specific fine or penalty imposed for its violation, but before the passage of the ordinance levying the tax another ordinance had been passed by the board, which is in the following words: "That the violation of any ordinance to which no specific fine or penalty is fixed is a misdemeanor, and shall subject the offender to a fine of not more than $50, or imprisonment for thirty days." The defendant was convicted, and appealed to this court.

The defendant insists that he ought not to have been convicted and that the judgment should be reversed, because--First, that it did not appear from the evidence that the ordinance was passed in the manner required by the charter of the town; second, that the town authorities did not have the power in law to pass an ordinance to place a fine or penalty upon a citizen for the failure to pay a tax or carry on a business without paying the tax in advance; and, third, that the board of aldermen did not have, through its charter, the authority to impose a tax upon any person for the privilege of carrying on a trade or business in the town.

Under the first contention of the defendant, he objected on the trial below to the record of the meeting of the board of aldermen which contained the two ordinances. N. B. Moore, the town clerk and treasurer, produced a book, which he said was the record of those proceedings; that the entries were not transcribed from rough sheets upon the record at the very time of the passage of the ordinances, but were afterwards entered upon the true record by some one in his presence, and under his direction; that the mayor and all of the aldermen were present at the meeting when the ordinances were adopted, though the record does not show who were present. The witness further said that it was not his custom to enter the names of the aldermen at meetings of the board when all were present, but only to enter the names of those present when any might be absent. His honor received the evidence, and, we think, properly. If believed by the jury, it was a sufficient record in law to support the levy and collection of the taxes laid. Besides, they were printed and circulated in the town, and signed by the mayor and the clerk.

The defendant's counsel, in his brief, does not refer to his second contention, and, we suppose, did not rely on it. Anyway, we see no reason why the board of aldermen of towns and cities should not be allowed to collect these privilege taxes in advance. In fact, it must be that in many instances, if they were not paid in advance, the taxes would be lost.

Under the third contention the defendant's brief opens up a wide range of discussion. In the first place, it is argued that the ordinances were invalid because they are not expressly authorized by the charter, because an authority to tax cannot arise by implication, and that the charter enumerates the subjects of taxation, but in that enumeration there is no reference made to dealers in tobacco. And in support of that position we are referred to the case of Commissioners v. Means, 29 N.C. 406. The authority fits the proposition advanced by the defendant's counsel but it does not fit the facts in this case. There the general assembly had confined the commissioners to two subjects of taxation,--real estate and the poll,--but in the case before us section 62 of the charter of Kinston expressly confers on its board of aldermen "the power to levy and collect taxes on all persons and subjects of taxation, which it is in the power of the general assembly to tax for state and county purposes, under the constitution of the state"; and, besides this, additional power is given to the board under section 3800 of the Code. In section 1 in the charter it is declared that the general laws of the state in relation to towns and cities, not inconsistent with the act incorporating the town of Kinston (Priv. Laws 1899, c. 180), be applicable to the government of that town. And we have held at this term, in F. S. Royster Guano Co. v. Town of Tarboro, 35 S.E. 231, that there is no inconsistency between the powers granted in section 3800 of the Code and the specific powers of taxation named in the charter of any town or city. But the defendant contends that section 62 of the charter, quoted above, is repugnant to that part of section 7, art. 7, of the constitution, which is in these words: "Nor shall any tax be levied or collected by any officer of the town except for the necessary expenses thereof, unless by a vote of the majority of the qualified voters therein." The argument is that the ordinance passed under the authority of section 62 of the charter does not show for what purpose the tax on the defendant's business was levied, and that it was necessary for that purpose to have been set out in the ordinance, and that it was for the necessary expenses of the town, before the defendant could be called upon to pay it. Such is not our view of the matter. The presumption must be that the aldermen obeyed the law and the constitution in the passage of the ordinance. If such be not the case, then the defendant must show that fact. But again he argues that the tax imposed by the ordinance is contrary to section 9 of article 7 of the constitution (the uniformity of taxation). This is the same question that was raised in Rosenbaum v. City of Newbern, 118 N.C. 83, 24 S.E. 1, and it was there decided against the plaintiff's contention. And then again the defendant argues that section 62 of the charter is...