Gatlin v. . Tarboro , 78 N.C. 119 ( 1878 )

As to the first point: The Constitution, Art. VII, sec. 7, forbids cities and towns from levying taxes except for their necessary expenses, unless by a vote of the qualified voters thereof. Whether this section by implication gives to such corporations the power to levy taxes for their necessary expenses, without any grant of such power from the Legislature, it is unnecessary to inquire. For if that be so, inasmuch as the Constitution imposes no restriction on the power except as above, but contents itself with requiring the Legislature to restrain its abuse (Art. VIII, sec. 4), the (121) power of a town to tax for its necessary expenses in the absence of any legislative restraint would be absolute and uncontrolled, except by the uncontested maxims of justice and morality found in the common law. In this case the Legislature has given the power to collect the tax in question, and unless the Legislature was prohibited from granting the power, it is immaterial whether the act be regarded as a grant of the power or as a restraint on the general power to tax impliedly given by the Constitution.

Taking the view of the question best for the plaintiffs, and assuming the act of 1876-7 to be a legislative grant of the power to tax, is there anything in the Constitution, or in any admitted maxim of our law, prohibiting the Legislature from making the grant of this particular power to tax?

It must be admitted that there is nothing in the Constitution expressly limiting the power of the Legislature to give to towns the power to tax their inhabitants, except that above stated, to wit, that it must be for a necessary expense, etc.

It is argued for the plaintiffs, however, that as the power of the Legislature to tax for State purposes is regulated, the power of the Legislature in granting the power of taxation to towns can only extend to granting it subject to like regulations. This may follow or not. But if we concede that the town of Tarboro could levy taxes only under the regulations prescribed for the Legislature by the Constitution, the question would be, Could the Legislature impose a tax like this?

The Constitution (Art. V, sec. 3) says that the Legislature shall tax by a uniform rule all moneys, etc., and all property according to its value in money, and that it may also tax trades, etc. Although it is not expressly provided that the tax on trades, etc., shall be uniform, yet a tax not uniform, as properly understood, would be so inconsistent with natural justice, and with the intent which is apparent in the section of the Constitution above cited, that it may be admitted (122) that the collection of such a tax would be restricted as unconstitutional. But is not this tax uniform? It is argued that it is not, because it is imposed on the plaintiffs in addition to their other taxes. This objection we think cannot be maintained, because the Constitution, while it requires all property to be taxed, expressly authorizes a tax on trades, etc., which must be a tax in addition to the tax on the property of the traders, which is common to all property owners. It is also argued, and the point was much insisted on, that the tax was not uniform because it was not of the same sum on every trader, but was graduated according to the sales of the preceding quarter.

A tax on trades, etc., must be considered uniform when it is equal upon all persons belonging to the described class upon which it is imposed. Burroughs on Taxation, sec. 77, pp. 147, 159.

It may be different upon a dealer in whiskey by retail from that on a wholesale dealer, or on a dealer in whiskey from what is on a dealer in grain, etc. So it does not cease to be uniform because it is $1 on all traders who sell to the amount of $1,000 in a quarter, they being one class, and $4 on all who sell to the amount of $4,000 in the same time, who form a different class. The same section of the Constitution allows a tax on incomes, and such a tax is always graduated by some rule according to the amount of the income. A law which imposed the same tax on every income without regard to its amount would be manifestly unjust. It may not unfairly be assumed that the profits of traders on their sales of like amount, whether of one article or another, do not materially differ, and a tax of a certain percentage on sales is intended to be, and is approximately, a tax according to profits, which is (123) not supposed to be unjust or unlawful. We are unable to see any valid objection to the act.

As to the second point: If it appeared from the act itself, or affirmatively appeared by the journals of the Legislature, which would have been competent evidence, that the notice of intended application for the act, which the Constitution requires, had not been given, we should probably hold the act void. We have not consulted the journals. That was evidence to be offered in the court below. Probably they are silent as to the fact whether it appeared that the required notice had been given or not. In that case we think the presumption would be that the Legislature had obeyed the Constitution, and that it appeared to it that the notice had been given. Omnia presumuntur rite esse acta. We cannot accept the agreement of the parties that no notice was in fact given as proof that it did not appear to the Legislature that the required notice had been given. In such a case the best and only proof is by the record. Our opinion on this point is supported by a recent decision in Illinois, Happel v.Brethaner, 70 Ill. 166.

If any weight were allowed to admissions of this sort, the law might change as each case was presented. Our opinion on this point renders it unnecessary to determine whether the act was technically a public or private one.

Judgment below reversed; and judgment in this Court that the injunction be vacated and the action dismissed and that the defendant recover costs in this Court.

PER CURIAM. Action dismissed.

BYNUM, J., dissenting.

Cited: Worth v. R. R., 89 N.C. 295, 308; Puitt v. Commissioners,94 N.C. 714; S. v. Powell, 100 N.C. 527; S. v. Stevenson, 109 N.C. 733; S.v. Moore, 113 N.C. 699; Rosenbaum v. New Bern, 118 N.C. 98; Bank v.Commissioners, 119 N.C. 226; Narron v. R. R., 122 N.C. 860; Cobb v.Commissioners, ib., 312; Commissioners v. Payne, 123 N.C. 494; Commissioners v. DeRosset, 129 N.C. 280; S. v. Carter,ib., 561; Lacy v. Packing Co., 134 N.C. 572; Graves v. Commissioners,135 N.C. 53; Commissioners v. Packing Co., ib., 67; Bray v. Williams,137 N.C. 390; Cox v. Commissioners, 146 N.C. 585; R. R. v. New Bern,147 N.C. 167; S. v. Danenberg, 151 N.C. 720; Land Co. v. Smith, ib., 75;S. v. Williams, 158 N.C. 613; Dalton v. Brown, 159 N.C. 179; MercantileCo. v. Mount Olive, 161 N.C. 123, 124; Smith v. Wilkins, 164 N.C. 140.

Distinguished: Scarboro v. Robinson, 81 N.C. 425.

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