State v. Williams
| Decision Date | 06 March 1912 |
| Citation | 73 S.E. 1000,158 N.C. 610 |
| Parties | STATE v. WILLIAMS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Carteret County; Carter, Judge.
Norman Williams, prosecuted for violation of an ordinance imposing a license tax, was discharged on the ground of invalidity of the ordinance, and the State appeals. No error.
Attorney General Bickett and T. H. Calvert, for the State.
The defendant was convicted in the mayor's court of Morehead City for the violation of an ordinance of the town which required "every person, firm or corporation in the state, soliciting or taking orders for goods at retail, to be delivered in the town by nonresident merchants, firms or corporations resident in the state, to pay a tax of ten dollars per day or thirty dollars per year." Defendant appealed to the superior court, in which a special verdict was returned by the jury finding that the defendant represented one A. A. Joseph, a merchant tailor or clothier of Goldsboro, N. C., and solicited and received orders in said town of Morehead City for tailor-made clothes, to be delivered to customers there, without having paid the tax imposed by the ordinance. Upon this finding, the court held the ordinance to be invalid, directed a verdict to be entered accordingly, and discharged defendant, and the state appealed. The Constitution (article 5, § 3) authorizes the Legislature to tax trades, professions, franchises, and incomes, provided that no income shall be taxed when the property from which it is derived is taxed. In accordance with this article, the Legislature, by Private Laws of 1905 c. 254,§ 12, provided that the commissioners of Morehead City should have the power to levy and collect a fair and reasonable special or license tax, and, among others, on the following subjects: "Itinerant merchants, peddlers and transient dealers, drummers or commercial travelers, and every agency for the sale of merchandise not manufactured in the town, and all other subjects taxed by the state." The ordinance in question was enacted under authority supposed to have been given in the passage we have taken from the amended charter of the town, and we are to say whether it is valid or not. The Constitution (article 5, § 3) provides that "laws shall be passed taxing, by a uniform rule all moneys, credits, investments in bonds, stocks joint-stock companies or otherwise, and also all real and personal property, according to its true value in money;" and there is conferred in the same section the power to tax trades, professions, and so forth, as above set out.
This court has held that the rule of uniformity applies to the latter provision as much as to the former, although there are no express words to that effect in the section; it being considered that a tax not uniform, as properly understood, though levied on trades, professions, or privileges, would be so inconsistent with natural justice and with the intent so apparent in the section we have quoted that its collection would be restrained as unconstitutional. Gatlin v. Tarboro, 78 N.C. 119; Worth v. Railroad, 89 N.C. 291, 45 Am. Rep. 679. And this may be taken as the settled construction of the section. It may also be considered as settled that in laying the tax the different subjects may be reasonably, though not arbitrarily, classified, and a different rule of taxation prescribed for each class, provided the rule is uniform in its application to the class for which it was made. Railroad Tax Cases, 92 U.S. 575, 23 L.Ed. 663; Railroad v. Worth, supra. As stated in those cases, the result must be to prevent discrimination among the individuals or subjects of any one class, based upon special privileges, immunities, or exemptions allowed to one and not to the others. If an ordinance, therefore, is not founded upon this fair and just basis, it will be deemed unreasonable and violative of the fundamental principle of taxation. Constitutional and legislative authority conferred upon a municipality to tax does not enable it to create a privilege for the purpose of taxing it, or to discriminate between persons exercising the same privilege, by imposing a tax upon one of a class at a higher rate in a different mode or upon other principles than one applied to the exercise of the same privilege by others of the same class. The power to tax extends no further than is permitted by its charter, and any attempt to impose burdens upon some of a class from which others are exempted would be void, as being beyond the granted powers of the municipality, and as an exercise of partial legislation. Nashville v. Althorp, 45 Tenn. 554; Cooley's Const. Lim. 390. The defendant can be held liable to taxation as a merchant, under the general laws of the state or of the municipality, in the same manner and to the same extent as all other merchants of the same class exercising these privileges within the corporation, but not otherwise, or further than they. When the by-law of a municipal corporation, enacted under a general grant of power, or by virtue of its incidental authority, is partial, unreasonable or oppressive, it will be declared void, as an unwarranted exercise of its taxing power. Simrall v. Covington, 90 Ky. 444, 14 S.W. 369, 12 Ky. Law Rep. 404, 9 L. R. A. 556, 29 Am. St. Rep. 398.
Cooley on Const. Lim. 200, 202. 1 Dillon's Mun. Corp. § 322. As said in Simrall v. Covington, supra ...
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