Wayne Mercantile Co. v. Commissioners of Mount Olive

• Decision Date: 14 December 1912
• Parties: WAYNE MERCANTILE CO. et al. v. COMMISSIONERS OF MOUNT OLIVE.
• Court: North Carolina Supreme Court

76 S.E. 690

161 N.C. 121

WAYNE MERCANTILE CO. et al. v. COMMISSIONERS OF MOUNT OLIVE.

Supreme Court of North Carolina

December 14, 1912

Appeal from Superior Court, Wayne County; Ferguson, Judge.

Action by Wayne Mercantile Company and others against Commissioners of Mount Olive. Judgment for defendant, and plaintiffs appeal. Affirmed.

An ordinance, imposing a license tax on merchants graduated among five classes according to annual sales, held not objectionable for nonuniformity because not based on percentages.

W. C Munroe, of Goldsboro, for appellants.

M. T Dickinson, of Goldsboro, for appellees.

CLARK C.J.

This is an action submitted without controversy to determine the validity of the following ordinance of the town of Mt. Olive levying a graduated license tax according to the amount of sales of merchants doing business in the town of Mt. Olive as follows: "On every merchant, storekeeper, or dealer in goods, wares or merchandise a graduated tax as follows: On annual sales, of $50,000 or over $75; $20,000 to $50,000, $50; $12,000 to $20,000, $25; $5,000 to $12,000, $15; $5,000 or less, $10.

The charter of the town of Mt. Olive (Pr. Laws 1905, c. 201) provides, among other things (section 30), as follows: "That the commissioners of the town of Mt. Olive in addition to the powers of taxation already granted in the charter of said town and the amendments thereto shall be and are hereby empowered to levy and collect annually a privilege or license tax on all trades, professions, agencies, business operations, exhibitions and manufactories in said town of Mt. Olive." That section was repealed, it is true, in Pr. Laws 1907, c. 295, but was re-enacted in Pr. Laws 1911, c. 28. Section 48 of the charter (Pr. Laws 1905, c. 201) is as follows: "The town of Mt. Olive is hereby vested with all the powers, rights, privileges and immunities enumerated in chapter 62 of the Code not inconsistent with any provision of this act."

The plaintiffs concede, and it is established by undisputed authority, that a flat rate of taxation upon an occupation would be legal; but it is contended by the plaintiffs that, if any graduation is made, it must be made strictly by a percentage on the amount of sales. A flat rate is manifestly the most inequitable, though it is undoubtedly legal. Admitting that graduation by percentage is a juster method, the town authorities are not compelled to adopt it when they decide to avoid the most inequitable.

The town of Mt. Olive might have laid a flat tax upon all merchants requiring all to pay the same amount, but, instead of this, it selected, not the better method of a tax graduated according to the percentage of sales, nor the best method of a graduated tax requiring a higher rate per cent. on larger receipts than on smaller receipts, but the authorities chose the system of dividing the merchants roughly into five classes according to the amount of their annual sales. Cooley on Taxation (3d Ed.) 261, says: "Even within the class taxed, however, there may be rules of distinction, and these are perfectly admissible, provided they are general rules and are observed. If a state, for example, were to decide to levy an occupation tax upon one of the learned professions, it might decide to lay the same tax upon each member, or it might discriminate so that the tax should be proportioned to the professional income. Either course would be admissible provided the rules are made general, though the latter may be the more equitable. But questions of mere equity in taxation are for the Legislature, not for the courts." When the power of taxation is vested by the Legislature in the town authorities the same rules apply.

In this case there are five classes of merchants. Those coming within each of these five classes are treated alike as to taxation upon their occupation, which is all the law requires, and the basis of the division into classes is purely one of discretion in the taxing authority. This point has been too often decided by this court to be an open question.

In Gatlin v. Tarboro, 78 N.C. 122, it is said: "The Constitution, while it requires all property to be taxed, expressly authorizes the tax on trades, etc., which must be a tax in addition to the tax on the property of the traders which is common to all property owners. It is also argued, and the point is much insisted on, that the tax was not uniform because it was not the same sum on every trader, but was graduated according to the sales of the preceding quarter. A tax on trades, etc., must be considered uniform when it is equal upon all persons belonging to the prescribed class upon which it is imposed. Burroughs on Taxation, § 77. It may be different upon a dealer in whisky by retail from that on a wholesale dealer; or on a dealer in whisky from what it is on a dealer in grain, etc. So it does lot cease to be uniform, because it is $1 on all traders who sell to the amount of $1,000, they being in one class, and $4 on all who sell to the amount of $4,000 in the same time, who form a different class." This case has been repeatedly cited and affirmed.

In State v. Powell, 100 N.C. 525, 6 S.E. 424, it is held: "A tax is uniform which is the same on all persons in the same class as on innkeepers, on railroads, etc.; but it is in the discretion of the...