J. M. DALTON, CHAIRMAN BOARD OF ROAD TRUSTEES OF COWEE TOWNSHIP, v. GEORGE C. BROWN & CO. (INC.).
NORTH CAROLINA SUPREME COURT
May 28, 1912
159 N.C. 175
New trial.
(Filed 28 May, 1912.)
- Taxation—Occupations—Clаss Legislation—Legislative Powers—Constitutional Law.
The only constitutional restriction upon the power of the Legislature in classifying vocations and laying a tax of a different amount upon the different occupations is that the tax shall be uniform upon all in each classification.
- Same—Highways—Heavy Hauling—Lumber Companies.
An act authorizing a levy of a tax of two cents рer mile on each 1,000 feet of mill logs, lumber, or other heavy material hauled by “any lumber company, corporation, person or persons engaged in the lumber business” and using the public roads of a certain county, is not the levy of a property tax, which is required to be uniform and ad valorem, but a taxing of a particular vocation, which is uniform in its application to that class, is without discrimination therein, and not in contravention of the fourteenth amendment of the Federal Constitution, or of
Art. V. sec. 3. andArt. I, sec. 17, of the Constitution of North Carolina . - Same—Reports—Penalty Statutes.
A valid legislative enactment authorizing the levy of a tax upon those using the public roads of a certain county for hauling mill logs, etc., thereon, of two cents per mile on each 1,000 feet thereof, is not unconstitutional in its requirement that those thus using the roads make a report upon which the proper amount of taxes may be collected, and imposing a penalty of $10 a day for each day they fail to make the report; and it being within the power of the Legislature to require them to make such report, the penalties incurred are enforcible.
Courts — Judicial Notice — Highways—Heavy Hauling—Lumber Companies. The courts will take judicial notice of the fact that lumber companies and others engaged in the lumber business do greater injury to the public roads used by them than is done by the ordinary use.
- Same—Taxation—Equality.
A tax of two cents per 1,000 feet for the use of the public roads of a certain county by those hauling mill logs, etc., thereon is held in this case to be reasonable and just, and within the legislative power to authorize its collection in equalizing the burdens of taxation with the other users of the roads who do less injury to them, and thus provide a fund for their repair.
- Same—Legislative Powers—Police Powers—Constitutional Law.
The levying of a tax upon those hauling mill logs, etc., upon a public road of a certain county is within the discretionary power of the Legislature, and comes within its police power, with which the
fourteenth amendment to the Federal Constitution does not interfere.
BROWN, J., dissenting; ALLEN, J., concurring in the dissenting opinion.
APPEAL by defendant from Lane, J., at Spring Term, 1912, of MACON.
The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Clark.
J. F. Ray, Johnston & Horn for plaintiffs.
T. J. Johnston for defendants.
CLARK, C. J.
Then this sеction provides that such corporations, firms, or persons shall make a monthly report to the road trustees of the amount of feet hauled each month, and a penalty of $10 per day for each day they fail to make report, etc.
This action was begun before a justice of the peace for accumulated penalties aggregating $50 for failure to make the monthly reports required by the statute. On appeal to the Superior Court by the defendant from the judgment of $50 imposed by the justice, the defendant filed a written demurrer alleging that the statute was unconstitutional because in violation of the
The demurrer was overruled. The only point actually presented is as to the power of the Legislature to require reports by lumber companies of the quantity of lumber hauled by them each month over the roads of Macon County. The statute expressly provides this penalty for failure to perform that duty. The failure to pay is made a misdemeanor subject to a fine of $50, and the civil action for failure to make the report is expressed to be in addition to the fine for failure to pay. There can be no question as to the right of the Legislature to require such report. The State is certainly sovereign as to the regulation of its dirt roads. S. v. Sharp, 125 N.C., 632; S. v. Wheeler, 141 N: C., 776. This would dispose of this appeal. But the question was debated before us upon the broader proposition, whether the act was unсonstitutional by reason of the tax being a discrimination and therefore in violation of the constitutional provisions referred to in the demurrer.
It is a matter of common knowledge that lumber companies and others engaged in lumber business do great injury to the
In S. v. Powell, 100 N.C., 526, the town of Morganton was authorized to levy privilege taxes of different sums on general occupations, including livery stables, selling sewing machines, etc., and fixing a penalty for carrying on each business without paying the license. This Court held that “A tax is uniform which is the same upon all persons in the same class,” and that it is in the discretion of the taxing power to place different rates of taxation on the different classes, citing R. R. Tax Cases, 92 U. S., 575, and Puitt v. Commissioners, 94 N.C., 709. Smith, C. J., pointed out that the error in opposing the validity of the taxation consisted “in regarding such tax as imposed on property, in which both uniformity and the ad valorem principle must be observеd. This is not a property tax, but a tax upon an occupation or vocation, and is not less so because the appurtenances to a livery stable necessary in conducting the business may be carriages, horses, and other property. Indeed, these articles, though so used, are still subject to the ad valorem assessment as prоperty. As other trades, purely personal, without regard to the magnitude of the business carried on, may be subjected to a tax of a fixed sum, we see no reason why those which require the use of property may not be.”
On turnpike roads, which are kept up by private enterprise, there is one rate for lighter vehicles and a higher rate for heavier vehicles. There is no reason why the Legislature cannot authorize the county to lay a rate of two cents per 1,000
In R. R. v. Reidsville, 101 N.C., 404, the Court sustained the validity of an ordinance of the town which levied a $50 tax on every railroad running through the town, saying that it was not repugnant to our own Constitution nor to the Constitution of the United States. In Worth v. R. R., 89 N.C., 295, Smith, C. J., said: “The uniform rule to be observed in the exercise of the taxing power seems to be so far applicаble to the taxes imposed upon trades, professions, franchises, and incomes as to require no discriminating tax to be imposed upon persons for pursuing the same vocation, while varying amounts may be assessed upon vocations or employments of different kinds.” It was further added that this principle had been sustained by Mr. Justice Millеr in R. R. Tax Cases, 92 U. S., 663, which held that it was sufficient “that the rule as to innkeepers be uniform as to all innkeepers, that the rule as to ferries be uniform as to all ferries, and that the rule as to railroad companies be uniform as to all railroad companies.”
In Rosenbaum v. New Bern, 118 N.C., 92, Avery, J., says: “The law of uniformity does not prohibit the classification by the municipality of dealers in a particular kind of merchandise separately from those whose business it is to sell other articles falling within the same general terms.” To the same effect, Schaul v. Charlotte, 118 N.C., 733.
In Lacy v. Packing Co., 134 N.C., 572, the subject is fully discussed, and it was held to be well settled that “A tax is uniform when it is equal upon all persons belonging to the prescribed class upon which it is imposed. It has been held that the tax may be different upon a dealer in whiskey by retail and dealer in the same article by wholesale, if uniform as to each class. Gatlin v. Tarboro, 78 N.C., 122. On tobacco buyers as a specified class, S. v. Irvin, 126 N.C., 989; on hotel keepers as a class, graduated in amount by the gross receipts and exempting those whose yearly receipts are less than $1,000, Cobb v. Commissioners, 122 N.C., 307; on the total amount of
Lacy v. Packing Co. is cited and the above doctrine reiterated by Hoke, J., in Land Co. v. Smith, 151 N.C., 75. In S. v. Holloman, 139 N.C., 642, the Court sustained a very similar statute to this, except that instead of the tax being levied in proportion to the quantity of lumber hauled, it lаid a flat rate of an annual license tax for each cart or vehicle used for hauling lumber, without reference to the quantity in each load or the number of loads made. The Court said (p. 646): “This statute deprives no citizen of any right to use the highway. It does not restrain trade nor is it oppressive. Heavily loaded vehicles cut up and injure the roads, and a reasonable license tax, the proceeds of which are appropriated to repairing the damage thus produced, is exceptionally equitable. The method for making and keeping in repair the public roads is a matter solely for the legislative department.”
The
The other two sections of the State Constitution prohibiting special privileges and prohibiting the deprivation of life, liberty, and proрerty except by the law of the land, which are referred to in the demurrer, have no application to this case. The Legislature was within its legitimate powers in prescribing regulations for the maintenance of the public roads of Macon County and in laying a tax upon the use of heavy vehicles for the purpose of rаising a fund to repair the damages usually inflicted on the roads by such traffic.
Affirmed.
BROWN, J., dissenting: I would be very glad to sustain the act of the General Assembly in question if I could reconcile it with the principles of taxation embodied in our Constitution.
I agreed to the decision in S. v. Holloman, 139 N.C., 642, because the statute was framed upon a very different principle from the one under consideration. There is a wide difference between this law and the Hertford County law. The latter applies to all persons, firms, or corporations using the public roads of the township; whereas the Macon County law is confined in its operation to any lumber company, corporation, or person engaged in the lumber business, and levies a tax of two cents per 1,000 feet upon the lumber belonging to such users of the public road. This tax cannot be sustained as an exercise of police power. It does not in any way tend to promote health, peace, morals, and good order of the people. Cooley Constitutional Limitations, 572.
It is not a license tax or regulation tax in any sense. Cooley on Taxation, 408. It is a contract pure and simple for keeping up the public roads, levied solely upon the property of those who happen to be engaged in the lumber business. It does not apply to the private individual who may haul hundreds of thousands of feet of lumber over the same road for his individual benefit.
Nor does it apply to those engaged in hauling as a business brick, clay, coal, or other heavy material over the same road.
The tax cannot be called uniform, because it does not apply to all persons using the public roads, but to a particular class who happen to be engaged in a certain kind of business. I admit that there is certain discretion given to the lawmaking power in regard to legislation affecting the public roads, but it is not an uncontrollable discretion; and when the tax is confined to one particular class of persons and not extended to all alike who use the same road, it cannot be called a regulation, but it is a revenue measure, pure and simple, and inasmuch as it is not uniform and does not bear alike upon all who use the public roads, it violates the uniformity of taxation, which is one of the essential features of our Constitution. Gray‘s Limitations of Taxing Power, sec. 1450; S. v. Moore, 113 N. C., 697.
It is apparent from reading the statute that this report is simply a part of the machinery for collecting taxes, and inasmuch as the statute must be taken as a whole, if the tax is void for lack of uniformity, then the whole statute falls to the ground.
MR. JUSTICE ALLEN concurs in this opinion.