State v. Powell

• Citation: 100 N.C. 525,6 S.E. 424
• Court: North Carolina Supreme Court
• Decision Date: 18 May 1888
• Parties: State v. Powell,

6 S.E. 424

(100 N.C. 525)

State

v.Powell,

Supreme Court of North Carolina.

May 18, 1888.

1. Municipal Corporations—Levying Tax on Livery-Stable Keepers — Constitutionality.

A city ordinance imposing a tax of a certain amount upon all livery-stable keepers is not void for lack of uniformity, as it does not discriminate among persons of the same class.¹

2. Same.

A city ordinance imposing a tax of a certain amount upon all livery-stable keepers is not void as not being proportioned to the value of the property and the extent of the operations of the business, as such tax is not a property tax, but a tax upon an occupation or vocation, which may be imposed in the discretion of those making the assessment, although such occupation may require the use of property.¹

Appeal from superior court, Burke county; James H. Merrimon, Judge.

Defendant, Robert Powell, is charged with a violation of a city ordinance which levics a tax of $10 upon each keeper of a livery stable. In the former appeal defendant did not press the question of the validity of this ordinance, and the purpose of this appeal by defendant is to determine its validity.

S. J. Ervin, for appellant.

The Attorney General, for appellee.

Smith, C. J. When this cause was before us upon a former appeal, (97 N. C. 417, 1 S. E. Rep. 482,) the ruling that no criminal offense, as set out in the warrant, of which the mayor of the town could take judicial cognizance, was created in the ordinance, was declared erroneous, and the superior court directed to proceed with the trial. It is now before us on the defendant's appeal, after verdict and judgment, for an alleged error in holding that the ordinance imposing the tax, so far as the required license applies to the keeping of a livery stable for pay, is valid and effectual. The objection was not specifically made at the first hearing, but it could and ought to have been then taken, and it is more than questionable whether, inasmuch as it was not, a second appeal is admissible to raise it now. If possessed of force it would have supported the action of the court in refusing to entertain jurisdiction, as an adverse decision upon the point is involved in the reversal of the judgment dismissing or quashing the proceeding. The very objection which lies at the basis of the present appeal, though it is not specially noticed, is determined in that now prosecuted. Still, as the former ruling was made in limine, and now the appeal is after judgment final, we have given careful attention to the reasons assigned by counsel for assailing the validity of the town enactment as affecting the class of delinquents to which the appellant belongs. In the brief before us the infirmity is said to consist in a disregard of the principle of uniformity, which, though not expressed in the constitution, is an essential and underlying condition of all legislation, state or municipal. Gat-lin v. Tarboro, 78 N. C. 119. Uniformity, in its legal and proper sense, is inseparably incident to the exercise of the power of taxation, but is it absent from the...