158 N.C. 610 | N.C. | 1912
Tbe defendant was convicted in tbe Mayor’s Court of Morebead City for tbe violation of an ordinance of tbe town wbicb required “every person, firm, or corporation in tbe State, soliciting or taking orders for goods at retail, to be delivered in tbe town by nonresident merchants, firms, or corporations resident in tbe State, to pay a tax of $10 per day or $30 per year.” Defendant appealed to tbe Superior Court, in wbicb a special verdict was returned by tbe jury finding tbat tbe defendant represented one A. A. Joseqib, a merchant tailor or clothier of Goldsboro, N. C., and solicited and received orders in said town of Morebead City for tailor-made clothes, to be delivered to customers there, without having paid tbe tax imposed by tbe ordinance. Upon this finding tbe court held tbe ordinance to be invalid, directed a verdict to be entered accordingly, and discharged defendant; and tbe State appealed.
Tbe Constitution, Art. Y, sec. 3, authorizes tbe Legislature to tax trades, professions, franchises, and incomes, provided tbat no income shall be taxed when tbe property from wbicb it is derived is taxed. In accordance with this article, tbe Legislature, by Private Laws 1905, cb. 254, see. 12, provided tbat tbe Commissioners of Morebead City should have tbe power to levy and collect a fair and reasonable special or license tax, and among others, on tbe following subjects: “Itinerant merchants, peddlers, and transient dealers, drummers or commercial travelers, and every agency for tbe sale of merchandise not manufactured in tbe town, and all other subjects taxed by tbe State.” Tbe ordinance in question was enacted under authority supposed to have been given in tbe passage we have taken from tbe amended chartei* of tbe town, and we are to say whether it is valid or not.
Tbe Constitution (Art. Y, sec. 3) provides tbat “Laws shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, stocks, joint-stock companies or otherwise, and also all real and personal property, according to its true value in money,” and there is conferred in tbe same section tbe power to tax trades, professions, and so forth, as above set out.
It may also be considered as settled tbat, in laying tbe tax, tbe different subjects may be reasonably, though not arbitrarily, classified, and a different rule of taxation prescribed for each class, provided tbe rule is uniform in its application to tbe class for which it was made. R. R. Tax Cases, 92 U. S., 575; R. R. v. Worth, supra. As stated in those cases, tbe result must be to prevent discrimination among tbe individuals or subjects of any one class, based upon special privileges, immunities, or exemptions allowed to one and not to tbe others. If an ordinance, therefore, is not founded upon tbis fair and just basis, it will be deemed unreasonable and violative of tbe fundamental principle of taxation.
Constitutional and legislative authority conferred upon a municipality to tax does not enable it to create a privilege for tbe purpose of taxing- it, or to discriminate between persons exercising tbe same privilege, by imposing a tax upon one of a class at a higher rate, in a different mode, or upon other principles than one applied to tbe exercise of tbe same privilege by others of tbe same class. Tbe power to tax extends no further than is permitted by its charter, and any attempt to impose burdens upon some of a class from which others are exempted would be void, as being beyond tbe granted powers of tbe municipality, and as an exercise of partial legislation. Nashville v. Althrop, 45 Tenn., 554; Cooley’s Const. Lim., 390.
Tbe defendant can be beld liable to taxation as a merchant, under tbe general laws of tbe State or of tbe municipality, in tbe same manner and to tbe same extent as all other merchants of' tbe same class exercising these privileges within tbe corporation, but not otherwise, or farther than they.
The case of Simrall v. Covington, supra, is directly in point, as will appear from this extract: “The ordinance now in question not only discriminates between residents of the city of Covington and those residing outside of it, whether within or without the State, but it places a burden upon some within the city, while others of its residents engaged in a like business are exempt. It is, therefore, unreasonable, partial legislation. To be reasonable, a municipal by-law should be equal in its operation. Tugman v. Chicago, 78 Ill., 405; Barling v. West, 29 Wis., 307. This one being clearly an infringement of individual right, partial and unreasonable in its character, cannot be sustained.” This doctrine appears to have been adopted by practically all the courts and is clearly founded in reason and justice.
Some courts hold that such an ordinance is invalid because it authorizes the taking of one citizen’s property for the benefit of the public, and, worse still, for private use or advantage, without just compensation. St. Charles v. Nolle, 51 Mo., 122. But a sufficient reason, under our Constitution, is that the discrimination in favor of the resident of the town and against the nonresident violates the rule of uniformity. It has been held that such distinctions between the inhabitants of the State, based upon no other ground than the place of actual residence, are in restraint of trade, invidious, unjust, and illegal. Muhlenbrinck v. Long Branch, 13 Vroom, 364.
Ordinances passed in the exercise of the police power or for the purpose of revenue, and intended to regulate or control the sale of articles in a town or city, or in other matters, must, of course, be reasonable, and it belongs to the courts to determine
It seems to us that the ordinance in question is aimed at nonresidents,- and there is room for the reasonable suspicion that it was designed principally for the benefit of residents in erecting a barrier against the introduction of foreign trade, for their protection. It is, therefore, open to the just criticism that it is discriminative, in restraint of trade, and not authorized by the terms of the Constitution, which were intended to secure equality in such matters. Saginaw v. Circuit Judge, supra. “Municipalities are not in any sense close corporations. They
"We conclude, therefore, that the ordinance of Morehead City, under which the defendant was charged criminally before the justice, is invalid, in that “it spends its whole force on nonresidents and spares residents entirely.” The Superior Courtjprop-erly directed that a verdict of not guilty be entered upon the findings of the jury. The defendant was entitled to his discharge.
No error.