State v. Moore

• Decision Date: 21 November 1893
• Citation: 113 N.C. 697,18 S.E. 342
• Court: North Carolina Supreme Court
• Parties: STATE. v. MOORE.

18 S.E. 342

113 N.C. 697

STATE.

v.MOORE.

Supreme Court of North Carolina.

Nov. 21, 1893.

Constitutional Law — Uniform Taxation—Police Regulation—Reasonableness of License Fee.

1. Acts 1891, c. 75, defining an "emigrant agent" "to mean any person engaged in hiring laborers in the state to be employed beyond the limits of the same, " and providing that emigrant agents shall pay the state treasurer a license fee of $1,000 before they can hire laborers in certain counties of the state to be employed beyond the limits of the state, is, if considered as an exercise of the taxing power of the legislature, in contravention of Const, art. 5, § 3, authorizing the legislature to tax "trades, professions, franchises, " etc., and is void for want of uniformity.

2. Since the act does not prescribe any regulation as to how the business shall be carried on, nor any police supervision, and since it exacts a very large license fee, it is restrictive and prohibitory of the business mentioned therein, and, if considered as an exercise of police power, is void for that reason.

3. There being no regulation of such occupation, and therefore no expense in supervising it, or any expense whatever beyond the amount necessary to defray the cost of issuing the license, the act, if considered an exercise of police power, is also void, for the unreasonableness of the license fee.

Appeal from criminal court, New Hanover county; Meares, Judge.

T. L. Moore was tried for a violation of Acts 1891, c. 75, (Emigrant Agent Act,) and, from a verdict of acquittal, the state appeals. Affirmed.

The Attorney General, for the State.

Junius Davis, for appellee.

SHEPHERD, C. J. This is an indictment for the violation of chapter 75, Acts 1891;and it is found in the special verdict that the defendant, "without having first procured a license therefor from the treasurer of the state of North Carolina, did hire six laborers in the county of New Hanover, in the state aforesaid, to be employed beyond the limits of the said state, and did solicit other laborers in said county to hire themselves to be so employed, and that the said defendant on the day aforesaid, and in the county aforesaid, was engaged in the business of hiring in the said county laborers to be employed beyond the limits of said state, and that the said county of New Hanover is east of the line, as at present established, and as so established on the 6th day of February, 1891, for the receiving of patients by the North Carolina insane Asylum." The act referred to excludes, in express terms, from its operation, any of the counties in the state which are west of the said line, except a few, which are therein specifically named; and thus it appears that the same occupation may be lawfully and freely pursued in many of the counties of North Carolina, while in others a license fee of $1,000 is required to be paid into the state treasury, and its pursuit without such a license is denounced as a criminal offense and punishable by a fine of "not less than five hundred dollars and not more than five thousand dollars, " or by imprisonment in the county jail "not less than four months, or confinement in the state prison at hard labor not exceeding two years for each and every offense, within the discretion of the court." It must be manifest from these provisions that the principle of uniformity is entirely disregarded, and that, if the act is to be considered as an exercise of the taxing power of the legislature, it must, under the repeated decisions of this court, be declared unconstitutional and void. Const, art. 5, § 3, authorizes the legislature to tax "trades, professions, franchises, " etc.; and, although it is not expressly provided that such taxes shall be uniform, "yet, " says Rodman, J., speaking for the court in Gatlin v. Tarboro, 78 N.C. 119, "a tax not uniform, as properly understood, would be so inconsistent with natural justice, and with the intent which is apparent in the section of the constitution above cited, that it may be admitted that the collection of such a tax would be restricted as unconstitutional." In Worth v. Railroad Co., 89 N.C. 291, the principle just stated was distinctly recognized, and declared to be within the spirit and meaning of the fundamental law. Smith, C. J., in delivering the opinion of the court, said: "We should be reluctant to hold, if there were no question of constitutional right involved, that this method of levying taxes was sanctioned by our own constitution, and consistent with the equality and uniformity which it contemplates. The 'uniform rule' to be' observed in the exercise of the taxing power seems so far applicable to the taxes imposed on trades, professions, etc., as to require that no dis criminating tax be imposed upon persons pursuing the same vocation, while varying amounts may be assessed upon vocations or employments of different kinds." Again, in Puitt v. Commissioners, 94 N.C. 709, it was said: "The principle of uniformity pervades the fundamental law; and while not, in the constitution, applied, in express terms, to the tax on trades, professions, etc., necessarily underlies the power of imposing such a tax." In this last case the court adopted the words of Miller, J., in the Railroad Tax Cases, 92 U. S. 575, "that while one tax may be imposed upon innkeepers, another upon ferries, and a still different tax on railroads, the taxation must be the same on each class; that is, the same tax upon all innkeepers, upon all ferries, and upon all railroads, in their respective classes, as taxable subjects." And again, in State v. Powell, 100 N.C. 525, 6 S. E. Rep. 424, the same language was accepted as a correct definition of "uniformity, " and it was repeated "that uniformity, in its legal and proper sense, is inseparably incident to the power of taxation." The act under consideration, if intended to impose a tax, in the legal signification of the term, very plainly falls within the inhibition of the organic law, as interpreted so often by this court, for it cannot, with the least show of reason, be contended that the principle of uniformity is not violated when the same occupation is heavily taxed in one county, while in an adjoining county it is entirely free and untrammeled. It is too plain for argument that if the legislature had passed an act imposing a tax upon merchants doing business in the counties of New Hanover, Pender, and Bladen, while like merchants in the counties of Brunswick, Robeson, and Richmond were not required to pay such tax, the act would be void; and yet such a discrimination in taxation would be no greater than that which is attempted to be made under the statute in question. It is not very unusual in this country for the state, either directly, or through its various municipal corporations, to require the payment of a certain amount for the privilege of prosecuting one's profession or calling; and this is required, indiscriminately, of all kinds of occupations, whatever be their character, —whether harmful or innocent; whether the license is necessary to the protection of the public, or not. "While the courts are not uniform in the presentation of the grounds upon which the general requirement of a license for all kinds of employments may be justified, on one ground or another, the right to impose the license has been very generally recognized. Whatever refinements of reasoning may be indulged in, there are but two substantial phases to the imposition of a license tax on professions and occupations: It is either a license, strictly so called, imposed in the exercise of the ordinary police power of the state, or it is a tax laid in the exercise of the power of taxation." Tied. Lim. 101; Cooley, Tax'n, 403.

We have seen that under the latter view the law under consideration cannot be sustained, for the want of the uniformity required by the constitution; and this brings us to the other branch of the inquiry, —whether it can be upheld as a regulation under the police power of the state.

2. "The police of a state, in a comprehensive sense, embraces its whole system of internal regulation, by which the state seeks, not only to preserve the public order, and to prevent offenses against the state, but also to establish for the intercourse of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others." Cooley, Const. Lim. 704. "The power is very broad and comprehensive, and is exercised to promote the health, comfort, safety, and welfare of society. Its exercise, in extreme cases, is frequently justified by the maxim, 'salus populi suprema lex est.' It is used to regulate the use of property by enforcing the maxim, 'sic utere tuo ut alienum non laedas;' and under it, the conduct of an individual, and the use of property, may be regulated so as to interfere to some extent with the freedom of the one, and the enjoyment of the other." In re Jacobs, 98 N. Y. 98; Tied. Lim. 1. This power, under our federal system of government, has been left with the states; and "the only limits to its exercise in the enactment of laws by their legislatures is that they shall not prove repugnant to the fundamental law, the state constitution, and the federal constitution, with the laws made under its delegated powers." State v. Moore, 104 N.C. 714, 10 S. E. Rep. 143; Cooley, Const. Lim. 574. In its fair and reasonable exercise, the legislature, by reason of the very nature of the power, is not restricted by constitutional provisions in reference to uniformity, as, says Judge Cooley, "the circumstances of a particular locality, or the prevailing public sentiment in that section of the state, may require or make acceptable different police regulations from those demanded in another. These discriminations are made constantly, and the fact that the...