Tobacco Co. v. . Maxwell, Comr. of Revenue
199 S.E. 405
N.C.
1938
Check Treatment
ClaeKSON, J.

Is the statutory definition of “scrap or untied” tobacco so phrased that a tax based upon this definition would be unconstitutional? "We think not.

Plaintiff appellant attacks the statute as being discriminatory, not uniform, unreasonable, prohibitory, vague, and not a lawful delegation of the taxing power. All of these objections are aimed at an interpretation of the statutory definition which we do not think applicable, to wit, that the mere prohibition by warehouses of the sale of a designated type of tobacco by warehouses thereby renders the prohibited tobacco “scrap or untied” tobacco and one dealing in it subject to the tax. As we interpret the legislative intent of the statute, the statutory definitions of “scrap or untied” tobacco are in fact two, rather than one, and are in effect as follows: “Any lot of parts of leaves of tobacco, or any lot in which parts of leaves of tobacco are commingled with (1) whole leaves of tobacco, or any other leaf or leaves of tobacco, or (2) parts of leaves of tobacco not permitted, under the rules and regulations of tobacco warehouses, to be offered for sale at auction on tobacco warehouse floors.” *371 It is to be noted that both divisions (1) and (2) are objects of the verb phrase “commingled with.” As so interpreted, either of the two statutory-definitions of “scrap or untied” tobacco requires the presence of parts of leaves of tobacco. After laying down a practical, working definition of “scrap or untied” tobacco (“parts of leaves of tobacco, or . . . parts of leaves of tobacco . . . commingled with whole leaves”), the General Assembly again repeated this definition so as to make clear that this definition should likewise be applied when any part of the mingled tobacco is prohibited from sale by warehouse rules. The apparent intent of the General Assembly in referring specifically to the mingling of parts of leaves with types of tobacco prohibited from sale by warehouses was to make clear that the statute was intended to cover not only scrap and untied tobacco offered for sale in warehouses but also scrap tobacco which warehouses would not permit to be sold on their floors. The classification of scrap or untied tobacco by members of the trade appears to be a well recognized and precise, descriptive term, and the statutory' definition as herein interpreted is in accordance with the common and general usage of the term within the trade itself. As so interpreted, there is no delegation of the taxing power to the warehouses; likewise, the interpretation here given the statute answers the charge of uncertainty and vagueness leveled at it by plaintiff.

The same presumption favors the constitutionality of a statute (Hood, Comr. of Banks, v. Realty, Inc., 211 N. C., 582, 591, and cases there cited) and the innocence of a person accused of crime (S. v. Palmore, 189 N. C., 538). To the end that the General Assembly may be fully protected in the exercise of its powers as the accredited legislative representative of the people, the strongest degree of proof known to law- — -“so clear that no reasonable doubt can arise” — is required to overthrow the constitutionality of an act. Hood, Comr. of Banks, v. Realty, Inc., supra; S. v. Brockwell, 209 N. C., 209 (212); Glenn v. Board of Education, 210 N. C., 525 (529). If bad law, the General Assembly has the power to repeal it — quo ligatur, eo dissolviiur. This powerful presumption of constitutionality is sufficient, in our opinion, to withstand the accusation that this statute is discriminatory, unreasonable, prohibitory, and not uniform in its application; the latter objection, it may be well to point out, is met squarely by the words of the statute that it is to apply uniformly and equally to “every person, firm, or corporation” engaged in buying or selling scrap tobacco.

In selecting the objects of taxation, in the classification of businesses and trades for this purpose, and in allocating to each its proper share of the expense of government, the General Assembly necessarily has been given a wide discretion. The continued maintenance of government itself as a great communal activity in behalf of all the citizens of the *372 State is dependent upon an adequate taxing power. Government exists that tbe rights of individuals may be protected, that the opportunity may be vouchsafed to every man to carve out his destiny in a free land secure from the pressure of anti-social forces. Levies in taxes are but the fair and reasonable price at which we purchase, as citizens of North Carolina, privileges and opportunities today denied the citizens of a majority of the countries of the civilized world.

The charge that the present tax is discriminatory, unreasonable and prohibitory is difficult to answer completely. However, in view of the strong presumption of constitutionality, the rule that the collateral motives of the Legislature in levying a tax are not subject to judicial review (McCray v. U. S., 195 U. S., 27; Magnano Co. v. Hamilton, 292 U. S., 40), and the settled view that the “power of taxation is very largely a matter of legislative discretion” and that “in respect to the method of apportionment as well as the amount it only becomes a judicial question in cases of palpable and gross abuse” (Felmet v. Canton, 177 N. C., 52 [54], and numerous cases cited), we are compelled to hold that there is not before us in this case sufficient proof that the instant tax of $1,000 per county annually against “scrap or untied” tobacco dealers is excessive as a matter of law. Taxes which bore heavily upon the taxpayers were upheld in S. v. Roberson, 136 N. C., 587; S. v. Razook, 179 N. C., 708; and Express Agency v. Maxwell, Comr. of Revenue, 199 N. C., 637. Taxation often involves the weighing of social policies and the determination of the respective values to be assigned various conflicting but legitimate business enterprises; under the doctrine of the separation of powers such functions have traditionally been allocated largely to the determination of the legislative branch of government, and, within wide limits, the determination of such matters by the legislative powers is binding upon the courts. Where a tax is levied against a business or enterprise which is clearly subject to taxation, as here, if the amount of the tax is such as to render it onerous, the primary recourse of the taxpayer is to the legislative forum; the power of this Court to deal with such matters is exceptional and unusual rather than general and ordinary.

The 1935 Scrap or Untied Tobacco Act was declared unconstitutional on the ground of vagueness and uncertainty in S. v. Morrison, 210 N. C., 117; the 1937 act here considered is free of the fatal shortcomings of the prior act.

After careful consideration, we find no error in the judgment below, and the same is

Affirmed.