Phillips v. Shaw , 238 N.C. 518 ( 1953 )

78 S.E.2d 314 (1953) 238 N.C. 518

PHILLIPS
v.
SHAW.

No. 233.

Supreme Court of North Carolina.

November 4, 1953.

W. H. McElwee, Jr., North Wilkesboro, for plaintiff appellant.

Atty. Gen. Harry McMullan and Samuel Behrends, Jr., Raleigh, member of Staff for defendant appellee.

BARNHILL, Justice.

The sales tax statute, General Statutes ch. 105, art. 5, defines the terms "wholesale sale", "sale at wholesale", "sale of tangible personal property", and like terms. G.S. § 105-167.

It levies a $1 license tax on both wholesalers and retailers, G.S. § 105-168, and provides that:

"An additional tax is hereby levied for the privilege of engaging or continuing in the business of selling tangible personal property, as follows:

"(a) Wholesale Merchants.—Upon every wholesale merchant as defined in this article, an annual license tax of ten dollars ($10.00). Such annual license shall be paid in advance * *. There is also levied on each wholesale merchant an additional tax of onetwentieth of one per cent (1/20th of 1%) of the total gross sales of the business.

"The sale of any article of merchandise by any ``wholesale merchant' to anyone other than to a licensed retail merchant for resale shall be taxable at the rate of tax provided in this article upon the retail sale of merchandise. In the interpretation of this article the sale of any articles of commerce by any ``wholesale merchant' to anyone not taxable under this article as a ``retail merchant' * * * shall be taxable by the wholesale merchant at the rate of tax provided in this article upon the retail sale of merchandise * * *." (Italics supplied.)

These are the provisions of our sales tax statute under which the Commissioner acted in levying the assessment about which plaintiff now complains. They control decision here.

The language of these provisions is unambiguous. Its meaning is clear. Therefore, there is no room for judicial construction. Howell v. Travelers Indemnity Co., 237 N.C. 227, 74 S.E.2d 610; In re Blue Bird Taxi Co., 237 N.C. 373, 75 S.E.2d 156; Perry v. Stancil, 237 N.C. 442, 75 S.E.2d 512; Watson Industries v. Shaw, Com'r. of Internal Revenue, 235 N.C. 203, 69 S.E.2d 505; Mullen v. Town of Louisburg, 225 N.C. 53, 33 S.E.2d 484.

The statute prescribes a fee of $1 for a license to engage in the business of wholesale or retail sale of automobiles. It levies on wholesalers an additional license tax of $10 plus 1/20 of 1% of the total gross sales of the business, to be paid by the merchant. It guards against sales by wholesalers to persons other than retail merchants, free of tax, by providing that a sale to any person other than a licensed retail merchant for retail shall be taxable at the retail rate of 3%. It then defines or prescribes the interpretation of the phrase "to anyone other than to a licensed retail merchant for resale". Any sale by a wholesaler to any one not taxable as a retail merchant under the sales tax statute shall be deemed a sale at retail and the wholesale merchant must collect and account for the tax on such sale at the rate of 3%, but not to exceed $15 on the sale of any one automobile.

These provisions are not in conflict with prior provisions of the Act defining "wholesale sale", "sale at wholesale", "retail merchant", "retail", and like terms contained in G.S. § 105-167.

The General Assembly simply took note of the fact that wholesalers sometimes sell to persons who are not retail merchants or persons who purchase for resale. It did not intend that such sales should escape taxation at the retail rate. In providing that a wholesaler must account for a tax on such sales at the retail rate, it declared that a sale by a wholesaler "to anyone not taxable under this article" shall be deemed a sale at retail. It relates only to sales made by wholesalers and provides the method of ascertaining the license and sales tax due by wholesalers. Thus the Legislature closed a loophole in the law which, otherwise, would have furnished a way for material evasion of the sales tax law. Clearly the definition is broad enough to include the sales which are the subject matter of this action.

Even if we concede that the quoted provisions are incompatible with the general definitions contained in G.S. § 105-167, this is no cause for declaring them invalid. It is a recognized canon of construction that: "Where the same statute contains a particular provision, which embraces the matter under consideration, and a general provision, which includes the same matter and is incompatible with the particular provision, the particular provision must be regarded as an exception to the general provision, and the general provision must be held to cover only such cases within its general language as are not within the terms of the particular provision." State ex rel., Utilities Commission v. Carolina Coach Co., 236 N.C. 583, 73 S.E.2d 562, 566, and cases cited.

The question of constitutionality of the Act was not raised in the court below. It may not be raised for the first time in this Court. Woodard v. Clark, 234 N.C. 215, 66 S.E.2d 888; State v. Lueders, 214 N.C. 558, 200 S.E. 22; State v. Cochran, 230 N.C. 523, 53 S.E.2d 663; Wachovia Bank & Trust Co. v. Waddell, 237 N.C. 342, 75 S.E.2d 151; 11 A.J. 720.

However, lest our failure to pass on that question invite further litigation on this subject, we may say that the appellant's contention in that respect is utenable.

The contract of purchase and sale was consummated in this State. Delivery was had here. The property entered the channels of interstate commerce—if at all—after both title and possession had passed to the purchaser. In no sense was it an interstate transaction. Watson Industries v. Shaw, Com'r of Revenue, supra; McGoldrick v. Berwind-White Coal Min. Co., 309 U.S. 33, 60 S. Ct. 388, 84 L. Ed. 565; Dept. of Treasury of Indiana v. Wood Preserving Corp., 313 U.S. 62, 61 S. Ct. 885, 85 L. Ed. 1188; International Harvester Co. v. Dept. of Treasury, 322 U.S. 340, 64 S. Ct. 1019, 88 L. Ed. 1313.

We are of the opinion, therefore, that the court below, on the facts agreed, correctly concluded that plaintiff is not entitled to recover the tax paid by him under protest. Therefore, the judgment entered must be

Affirmed.