Wood v. Braswell

Decision Date24 November 1926
Citation135 S.E. 529
CourtNorth Carolina Supreme Court
PartiesWOOD et al. v. BRASWELL, Sheriff.

Appeal from Superior Court, Anson County; Lane, Judge.

Action by W. T. Wood and others against W. S. Braswell, Sheriff. Judgment for defendant, and plaintiffs appeal. Affirmed.

The plaintiff and others instituted a civil action against the defendant, sheriff of Anson county, to restrain the collection of a licence tax of $5 upon each automobile and motor truck owned by any person, firm, or corporation residing in Anson county. The license tax on automobiles in said county is levied under chapter 511, Public Local Laws 1925. A temporary restraining order was issued, and upon the hearing before Lane, J., on August 30, 1926, the following judgment was rendered, from which said judgment plaintiff appealed:

"This cause coming on to be heard and being heard before his honor, H. P. Lane, judge hold-ing the courts of the Thirteenth judicial district, and after hearing the pleadings and arguments of counsel, it is ordered and adjudged by the court that chapter 511, Public Local Laws 1925, entitled 'An act to provide funds for road maintenance in Anson county, ' is in all respects, and in all its provisions, constitutional and valid.

"It is further ordered and directed that the sheriff of Anson county proceed to collect all taxes levied pursuant to the provisions of said act and in conformity therewith.

"It is further ordered that the restraining order heretofore issued in this cause be, and the same is hereby, discharged and the action dismissed, and the plaintiffs taxed with the cost."

M. C. Lisk, of Wadesboro, for appellants.

McLendon & Covington and Robinson, Caudle & Pruette, all of Wadesboro, for appellee.

BROGDEN, J. The plaintiff attacks the constitutionality of chapter 511, Public Local Laws 1925, upon the ground that it denies the equal protection of the law and discriminates against taxpayers in the county of Anson, and, further, upon the ground that the act in question violates article 2, § 29, of the Constitution of North Carolina, which provides, among other things, as follows:

"Nor shall the General Assembly enact any such local, private or special act by the partial repeal of a general law."

The general law (C. S. § 2G12) provides that "ho county, city or town shall charge any license or registration fee on motor vehicles in excess of one dollar per annum." Therefore the plaintiff contends that chapter 511, Public Local Laws 1925, in attempting to levy a license tax of $5 on automobiles, repeals, so far as Anson county is concerned, a general law, to wit, C. S. § 2C12, subd. 2.

The plaintiffs allege in substance that they are residents and taxpayers of Anson county, and that the defendant is the sheriff of Anson county, charged with the duty of collecting taxes levied by the Legislature and the board of commissioners of said county. And, further, that the plaintiffs are informed, believe, and so allege that the defendant sheriff has collected and is now attempting to collect tax as hereinbefore alleged.

The plaintiffs do not allege that they are owners of automobiles or motor trucks, or that the sheriff has collected or is attempting to collect any license tax from these particular plaintiffs. Therefore there is no allegation that any property right of plaintiffs has been invaded as a result of chapter 511, Public Local Laws 1925.

In Moore v. Bell, 191 N. C. 311, 131 S. E. 727, Justice Connor, speaking for the court, says:

"The validity of a statute enacted by the General Assembly of North Carolina, declaring certain acts therein defined to be unlawful, and imposing punishment therefor, as crimes which do not affect property or property rights, and which do not expose to oppression or vexatious litigation one who denies the power of the General Assembly, under the Constitution of the state to enact such statute, in the event that he shall violate its provisions, may not be determined in an action to restrain and enjoin a pub-lie officer who is required by the statute to en-force it. The invalidity of a statute, upon the ground that it is in violation of the Constitution of the state, is a good defense upon a prosecution in the courts for a violation of its...

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15 cases
  • In Re Parker.
    • United States
    • North Carolina Supreme Court
    • March 18, 1936
    ...is also present some other ground upon which the case may be made to turn. Newman v. Watkins, 208 N.C. 675, 182 S.E. 453; Wood v. Braswell, 192 N.C. 588, 135 S.E. 529. "It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision ......
  • State v. Rev Is, (No. 547.)
    • United States
    • North Carolina Supreme Court
    • January 26, 1927
    ...2 L. Ed. 60. But even then the courts do not undertake to say what the law ought to be; they only declare what it is. Wood v. Braswell, 192 N. C. 588, 135 S. E. 529. To interpret, expound, or declare what the law is, or has been, and to adjudicate the rights of litigants, are judicial power......
  • State v. Williams
    • United States
    • North Carolina Supreme Court
    • January 1, 1935
    ...calling for the determination of its validity. Newman v. Watkins (Com'rs of Vance County), 208 N.C. 675, 182 S.E. 453; Wood v. Braswell, 192 N. C 588, 135 S.E. 529; State v. Corpening, 191 N.C 751, 133 S.E. 14; Person v. Doughton, 186 N.C. 723, 120 S.E. 481. It follows, therefore, that the ......
  • Blackmore v. Duplin County
    • United States
    • North Carolina Supreme Court
    • July 2, 1931
    ...law in advance of the necessity of deciding them; nor do they venture advisory opinions on constitutional questions. Wood v. Braswell, 192 N. C. 588, 135 S. E. 529; Person v. Doughton, 186 N. C. 723, 120 S. E. 481. For the reason stated, plaintiff is entitled to the relief demanded. ...
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