Wrought-Iron Range Co. v. Carver
| Decision Date | 24 March 1896 |
| Citation | 24 S.E. 352,118 N.C. 328 |
| Parties | WROUGHT-IRON RANGE CO. v. CARVER, Sheriff. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Person county; Starbuck, Judge.
Application by the Wrought-Iron Range Company against J. A. Carver sheriff of Person county, for an injunction to restrain the collection of a tax. From an order dissolving the restraining order, plaintiff appeals. Modified and affirmed.
Conceding that Acts 1895, c. 116, entitled "An act to raise revenue," was not signed by the presiding officers of the general assembly, it is, nevertheless, a valid part of the public law, since it was expressly referred to in chapter 119, which was properly signed, and such reference constituted a sufficient attestation and ratification of the former chapter.
Shepherd & Busbee and Boone, Merritt & Bryant, for appellant.
W. A Guthrie and A. L. Brooks, for appellee.
This is an application for an injunction to restrain the defendant as sheriff of Person county, from collecting, by distraint what he claims to be a peddler's tax. The defendant denies plaintiff's right to proceed by injunction, whether the tax be "illegal and void" or not, under section 76, Machinery Act 1895. [1] We do not agree with defendant in this contention. It was agreed that plaintiff might proceed by injunction unless he is prevented by this section, and it is true that this section does profess to prohibit the issuance of injunctions against the collection of public taxes, except in certain cases; and it seems to us that the exception is about as broad as the prohibition, and about all the effect it has is to give an additional remedy, which is left to the discretion of the party, to pay the tax and then bring an action to recover the money back. But, whether the exception is as broad as it seems to us, or not, it in express terms excepts from the inhibition of injunction taxes that are "illegal and invalid," and, this question of jurisdiction being disposed of, the matter comes to be considered upon its merits.
There are many grounds of objection made by the plaintiff to the legality of this tax and to the manner in which defendant proceeded to collect the same. Plaintiff says that no such tax has been assessed, and the defendant had no warrant or order for its collection; that, if defendant had authority to collect without a special order to do so, his action was illegal, as the tax created no lien on plaintiff's property, and he had no right to take it by distraint or levy. But plaintiff further alleges that, if defendant, as a tax collector, has the right to levy on property for taxes without a special order to do so, he had no right to do so for this tax, as it was protected from taxation by the law of interstate commerce, and was unconstitutional and void. And, finally, plaintiff alleges that chapter 116, Acts 1895, was not signed by the president of the senate and the speaker of the house of representatives, and therefore is not a part of the laws of North Carolina.
"Taxes are the enforced proportional contributions from persons and property levied by the state, by virtue of its sovereignty, for the support of government, and for all public needs." Cooley, Tax'n, p. 1. Acts 1895, c. 119, § 83, subd. 8, defines "tax," or "taxes," to be "any tax or assessment provided for in this act." "The power of taxation is an incident of sovereignty, and is possessed by the government without being expressly conferred by the people [the constitution]." Cooley, Tax'n, p. 4. "In general, it will be found that statutes imposing taxes make special provision for their collection, and do not, apparently, contemplate that any others will be necessary." Cooley, Tax'n, p. 15. Section 37, c. 119, Acts 1895, provides for the collection of taxes as follows: "whenever the tax shall be due and unpaid, the sheriff shall immediately proceed to collect the same as follows: If the party charged have personal property equal to the value of the tax charged against him, the sheriff shall seize and sell the same, as he is required to sell other property under execution." And an act for levying taxes and providing the means of enforcement is, as we have seen, within the unquestioned and unquestionable power of the legislature. It is therefore the law of the land, not only in so far as it lays down a general rule to be observed, but in all the proceedings and all the process which it points out or provides for in order to give the rule full operation.
As has been well said, "the mode of levying, as well as the right of imposing, taxes, is completely and exclusively with the legislative power." Cooley, Tax'n, pp. 48, 49. The work of the commissioners in assessing taxes is only to ascertain the amount due where this is uncertain and to be determined by some general rule prescribed by the legislature. But, besides the above authorities, the right of the sheriff to levy and sell for just such taxes as are involved in this action has been expressly decided and sustained by this court in Cowles v. Brittain, 2 Hawks, 207, and Wynne v. Wright, 1 Dev. & B. 19; and these cases are cited and approved by Justice Gray in delivering the opinion of the court in Emert v. Missouri, 156 U.S. 309, 15 S.Ct. 367. So it is clear the legislature had the right--the power--to levy this tax, leaving out, for the present, the question of interstate commerce; that it did levy it; that it had the right to provide (prescribe) the mode and manner of enforcing its collection, and by whom it should be collected; and that it did prescribe the mode of enforcing its collection and by whom it should be collected. And, under this legislative power, the defendant--the sheriff--has proceeded to make the collection in the manner pointed out in the act. This leaves two questions yet to be considered,--interstate commerce, and as to whether chapter 116, Acts 1895, is a part of the public laws of the state.
It is contended by plaintiff that the first of these questions (interstate commerce) has been expressly decided by this court in plaintiff's favor, and State v. Lee, 113 N.C. 681, 18 S.E. 713, and State v. Gibbs, 115 N.C. 700, 20 S.E. 172, are cited as authority to sustain this contention. But, upon examination, it will be found that State v. Lee was expressly put on the ground that the legislature had not imposed a tax on defendant's business, and the court intimates the opinion that, had the legislature imposed the tax, the court would have affirmed the judgment below. The question of interstate commerce is not discussed in the opinion, but, if it was considered, the intimation of the court is against the plaintiff's contention. The case of State v. Gibbs is put upon an admission of the attorney general that it falls under the decision of State v. Lee, and it is expressly stated in the opinion that no federal question is presented. So it is manifest that neither of these cases decides the question or sustains the contention of plaintiff as to interstate commerce. The case of State v. Lee, supra, as was that of State v. Gibbs, was put upon the definition of "peddler." And the court then held that the term "peddler" did not include a party who traveled over the country, carrying a sample stove, soliciting orders to be filled by another wagon following and delivering stoves. This was, at least, a very favorable construction for the defendant. This is a privilege tax, and outside of the revenue to be raised for the support of the government. The object of such taxes is to protect the people against the frauds and machinations of this class of irresponsible traders, and to protect honest dealers, with fixed places of business, and who honestly bear their part of the burden of the government. Emert v. Missouri, supra. And, this being so, it is apparent that neither the people nor the bona fide local dealers would receive any more protection against this itinerant trade, carried on in the manner pursued by plaintiff, than if he were to sell the stove he has in the wagon in which he travels. In fact, it can be considered in no other light than as a subterfuge--a trick--to evade the tax imposed by the government. This question of taxation is elaborately discussed by Justice Gray in Emert v. Missouri, supra, and especially on page 314, 156 U.S., and page 367, 15 Sup. Ct., where he defines the term "peddler." In Toml. Law Dict., these definitions are given: "Hawkers: Those deceitful fellows who went from place to place buying and selling; and the appellation seems to grow from their uncertain wandering, like persons, that, with hawks, seek their game where they can find it." "Hawkers, peddlers, and petty shopmen: Persons traveling from town to town with goods, and merchandising." But it is not necessary for us to decide, in this case, whether the definition given to the word "peddler" in State v. Lee was correct or not, as Acts 1895, c. 116, § 23, has made the definition: "That any person carrying a wagon, cart or buggy for the purpose of exhibiting or delivering any wares or merchandise shall be considered a peddler." This paragraph was not in the acts under which State v. Lee and State v. Gibbs were decided. The legislature had the right to make this definition. Emert v. Missouri, supra. So there can be no doubt that plaintiff's business was taxed by the act of 1895.
Then is the plaintiff relieved from the burden of this tax by the constitution of the United States under the doctrine of interstate commerce? We do not think it is. The plaintiff is a foreign corporation, and can only do business in this state by the rules of comity; and it would seem that, under this doctrine, it ought not to claim, and, if it does claim, it should not be allowed, greater privileges than our own citizens. A foreign...
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