123 S.E. 475 | N.C. | 1924
The facts appear in the judgment, which is as follows:
This cause coming on to be heard, upon notice to the defendants to show cause why the preliminary restraining order heretofore granted in said cause should not be continued in full force until final judgment and decree in this suit, and it being admitted by counsel for the plaintiff and defendants that the pertinent facts are as follows:
The plaintiff is a corporation, engaged in the banking business in Greensboro, and prior to 31 December, 1920, in the course of its business, *26 loaned to J. M. Waynick, who was a dealer in Jackson automobiles and trucks, large sums of money, and on the said 31 December, 1920, said Waynick was indebted to the plaintiff in the sum of $25,246.05, and on said day, as collateral security for said debt, executed a bill of sale to said plaintiff, in words and figures as follows:
31 December, 1920. NORTH CAROLINA — Guilford County.
This bill of sale, made this 31 December, 1920, by and between Mr. J. M. Waynick, of Greensboro, N.C. party of the first part, and the American Exchange National Bank, party of the second part, witnesseth:
That in consideration of $1.00 and other good and valuable consideration paid by the party of the second part to the party of the first part, the receipt of which is hereby acknowledged, the said party of the first part does hereby sell and assign to the said party of the second part, the following automobiles: 1 Model 638 Semi-sport, No. 25910; 1 Model 638 Semi-sport, No. 24916; 1 Model 638 Touring, No. 25392; 1 Model 638 Touring, No. 25905; 1 Model 638 Touring, No. 25712; 1 Model 638 Touring, No. 25417; 1 Model 638 Touring, No. 25638; 1 Model 638 Sport Model, No. 25380; 1 Model 638 Sport Model, No. 25809; 1 Model D Truck, 215; and with standard equipment.
I agree to sell and collect for the said cars above described in trust for the said bank, and to account to the bank, and settle in full for each car immediately upon sale.
J. M. WAYNICK MOTOR COMPANY. By J. M. WAYNICK.
During the fiscal year 1921-'22 J. M. Waynick abandoned his business, and the plaintiff took possession of said automobiles and trucks, and sold all of said automobiles during the fiscal year 1921-'22 and applied the proceeds of said sales to the payment of Waynick's debt to it; that it offered for sale the Jackson truck during the fiscal years 1921-'22; 1922-'23, and 1923-'24, and is still offering same for sale. The plaintiff has paid no license or privilege tax for selling said automobiles during any of the fiscal years aforesaid. On 1 October, 1923, defendants B.R. Lacy, Treasurer, and R. A. Doughton, Commissioner of Revenue, caused the other defendant, D. B. Stafford, sheriff of Guilford County, to levy upon said truck for the privilege and license tax of $500.00 and $250.00 for each of said fiscal years, and to advertise the same, to satisfy said tax, penalty and costs.
And the court being of the opinion that the plaintiff is not liable to the State of North Carolina for a license or privilege tax for the sale *27 of automobiles, it is ordered, adjudged and decreed that the restraining order heretofore granted in this action be and it is hereby continued in full force until final judgment and decree in this action.
T. J. SHAW, Judge Presiding.
Defendants excepted and appealed. In 1920, J. M. Waynick was engaged in selling automobiles, and on 31 December executed and delivered to the plaintiff the written instrument described in the judgment as a bill of sale. There is no pretension that he paid the license tax prescribed by law, and it is found as a fact that the plaintiff paid no such tax during either of the fiscal years set out in the record. In 1921 or 1922 Waynick abandoned his business, and the plaintiff took possession of and sold all the automobiles, and now has the truck, which he has repeatedly offered for sale. The only question for decision is whether the plaintiff is liable for the license tax.
At the session of 1919 the General Assembly enacted a statute providing that every person, firm, or corporation engaged in selling automobiles or automobile trucks in this State, the manufacturer of which has not paid the license tax imposed by law, before selling or offering for sale any such machine, shall pay to the State Treasurer a tax of $500, and shall procure a license for such business annually in advance on or before 31 May or before engaging in the business for which the tax is levied, and shall keep it posted in a conspicuous place where the business is carried on. Public Laws 1919, ch. 90, secs. 72, 85, 87: Public Laws, 1920, Ex. Ses., ch. 65; C. S., 7851. The substance of these provisions is continued in the Revenue Act of 1921 and of 1923 (Public Laws 1921, ch. 34, secs. 72, 85, 87; Public Laws, 1923, ch. 4, secs. 78, 92, 94), the tax under the act of 1923 being payable to the State Commissioner of Revenue. The record presents no controversy, however, either as to the parties to the action or as to the amount of the taxes claimed to be due and unpaid.
The plaintiff contests its liability for the tax on several grounds.
1. It is contended that the statute imposing the tax is inoperative on the ground that it unlawfully discriminates against nonresident manufacturers and unlawfully interferes with interstate commerce. Considering the bases of these contentions — the first, that the corporations are discriminated against and the second that their products are — the Supreme Court of the United States construed the statute as discriminating *28
against nonresident manufacturers doing business in the State by reducing the tax from $500 to $100 if the manufacturer of automobiles has three-fourths of his entire assets invested in the bonds of the State or any of its counties, cities, or towns, or in other property situated therein and returned for taxation, and as discriminating in favor of the product of resident manufacturers by attempting to regulate interstate commerce. Bethlehem Motors Corporation v. Flynt,
The plaintiff contends that by reason of its discriminative provision the statute is void. This is not our understanding of the decision. We do not think it goes so far. The invalidity of one part of a statute does not nullify the remainder when the parts are separable and the invalid part was not the consideration or inducement for the Legislature to enact the part that is valid. In Connolly v. Union Sewer Pipe Co.,
That part of the statute which offends the 14th Amendment if the nonresident corporations are doing business in the State or attempts to regulate interstate commerce if they are not is a proviso which is severable from the other provisions; and we have legislative declaration that the statute would have been enacted with the obnoxious section eliminated. The statute in question and the following section are a part of the Revenue Act: "If any clause, sentence, paragraph, or part of this act shall, for any reason be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder of this act, but shall be confined in its operation *29
to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judgment shall have been rendered. No caption of any section or set of sections shall in any way affect the interpretation of this act or any part thereof." Public Laws 1921, ch. 34, sec. 900. This act was ratified 8 March, 1921; the Bethlehem Motors case,supra, was decided 1 June, 1921; during the fiscal year 1921-22 Waynick abandoned his business and left the State, and the plaintiff then took possession of the cars and the truck. Under these circumstances we cannot approve the suggestion that the entire statute is void. Field v. Clark,
2. The plaintiff contests its liability for the tax upon the further ground that it is engaged in the business of banking and is neither a manufacturer of automobiles nor a firm or corporation engaged in selling automobiles or automobile trucks. It may be granted that the primary object of the Legislature was the imposition upon manufacturers and sellers of a license tax for the privilege of carrying on the business or doing the act named in the statute. The tax may be collected from any manufacturer engaged in the business of selling automobiles in the State or from any person or corporation selling cars or trucks in the State. Public Laws 1917, 1919, 1921, cited above. Apart from the invalidity of the section which antagonizes certain provisions of the Federal Constitution, the plaintiff, as we understand, does not contend that Waynick did not become liable for the tax and remain so up to the time he abandoned his business and departed from the State. That he will never pay the tax may be assumed. The question is whether the plaintiff shall pay it or whether the State shall suffer the entire loss.
We deem it unnecessary to discuss the distinction between "selling" and "the business of selling" automobiles. That the Legislature intended such distinction may probably be inferred from the wording of the statute. Public Laws 1921, ch. 34, sec. 72. The business of selling seems to be confined to the manufacture, but "selling" applies to every person or corporation. With reference to class, the determinative words are "manufacturer," "person or persons or corporation," and "applicant." The word "dealer" is descriptive of second-hand dealers engaged in the business. As indicated above, the tax is paid for the privilege of *30
carrying on the business or doing the act named. Public Laws 1921, ch. 34, sec. 26. We do not think the question before us is similar to that in S. v.Chadbourn,
By the terms of this agreement Waynick became the plaintiff's agent to sell the automobiles and the truck and to hold the proceeds in trust for the plaintiff. Waynick "sold and assigned" to the plaintiff the automobiles and the truck, and it is evident that the sales were to be made for the plaintiff's benefit, at least until the amount secured was fully paid; and if by an arrangement of this kind the tax can be collected, neither from Waynick nor from the plaintiff, payment may finally be evaded and the practical efficacy of the statute reduced to a nullity.
Reversed.
