Eastern Carolina Tastee-Freez, Inc. v. City of Raleigh , 256 N.C. 208 ( 1962 )

123 S.E.2d 632 (1962) 256 N.C. 208

EASTERN CAROLINA TASTEE-FREEZ, INC.
v.
CITY OF RALEIGH.

No. 457.

Supreme Court of North Carolina.

January 12, 1962.

Paul F. Smith, Raleigh, for defendant-appellee.

Blanchard & Farmer, Raleigh, for plaintiff-appellant.

BOBBITT, Justice.

A State license tax is imposed on peddlers by G.S. § 105-53. Under authority conferred by G.S. § 105-53(g), the City of Raleigh, by Section 145, Chapter 14, of its City Code, imposed a city license tax on peddlers. Neither the authority of the City of Raleigh to impose such license tax nor the amount thereof is challenged by plaintiff.

Chapter 14 of the City Code of Raleigh is entitled, "The License Tax Ordinance of the City of Raleigh." Section 145 thereof imposes a license tax on peddlers of "any goods, wares or merchandise." Plaintiff applied for such license and tendered payment of the prescribed license tax. No specific reference to ice cream or ice milk appears in said Section 145 or in G.S. § 105-53.

G.S. § 105-33(a) provides that State license taxes are imposed "for the privilege of carrying on the business, exercising the privilege, or doing the act named." G.S. § 105-33(d) provides that the State license issued under G.S. § 105-53, that is, on "(a)ny person, firm, or corporation who or which shall carry from place to place any goods, wares, or merchandise, and offer to sell or barter the same, or actually sells or barters the same," (the statutory definition of peddler), "shall be and constitute a personal privilege to conduct the profession or business named in the State license, shall not be transferable to any other person, firm or corporation and shall be construed to limit the person, firm or corporation named in the license to conducting the profession or business and exercising the privilege named in the State license to the county and/or city and location specified in the State license, unless otherwise provided in this article or schedule." (Our italics.)

It is noted that G.S. § 105-33(a) provides, in part, that "the obtaining of a license required by this article shall not of itself authorize the practice of a profession, business, or trade for which a State qualification license is required." (Our italics.)

Provisions for the regulation of traffic on the streets are set forth in Chapter 21 of the City Code of Raleigh, designated "Traffic Code of the City of Raleigh."

Section 105 of Chapter 14 of the City Code of Raleigh is captioned, "Ice cream manufacturers." Paragraph (a) prescribes the license tax required of manufacturers and wholesale distributors of ice cream. Paragraph (b) provides that the words "ice cream," as used in said section, "shall apply to ice cream, frozen custards, sherbets, water ices, or similar products." Paragraph (c) prescribes the license tax required of certain retail dealers. Then follows, in a separate and final paragraph without special designation by letter or number, the ordinance provision now attacked by plaintiff. It is noted that G.S. § 105-97, captioned "Manufacturers of ice cream," which imposes a State license tax, is in substantially the same phraseology as Section 105 of Chapter 14 of the City Code of Raleigh, with these exceptions: (1) The amount of license tax imposed is different, and (2) G.S. § 105-97 does not contain any provision similar to the ordinance provision now attacked by plaintiff.

The provision that "(n)o ice cream shall be peddled along the streets and/or sidewalks of the city from push carts or other vehicles or in any other manner," now the final paragraph and sentence of Section 105 of Chapter 14 of the City Code of Raleigh, was adopted on some (undisclosed) date prior to 1950. Its direct reference to "push carts" suggests it was adopted at least as far back as the horse and buggy era. It purports to prohibit peddling of ice cream in any manner along the streets or sidewalks of Raleigh. Was the peddling of ice cream prohibited as a health measure at a time when present methods of refrigeration were unknown? Suffice to say, there is no legislative declaration or evidence as to when or why this ordinance provision was adopted.

We interpret the ordinance provision attacked by plaintiff as an absolute prohibition of the peddling of ice cream in any manner along the streets or sidewalks of Raleigh. Thus, it purports to prohibit a person, firm or corporation from exercising the privilege granted by the State license.

A municipal corporation is a creature of the General Assembly. Municipal corporations have no inherent powers but can exercise only such powers as are expressly conferred by the General Assembly or such as are necessarily implied from those expressly conferred. Davis v. City of Charlotte, 242 N.C. 670, 89 S.E.2d 406; State v. Scoggin, 236 N.C. 1, 8, 72 S.E.2d 97.

As stated above, a State license issued under G.S. § 105-53 authorizes the licensee (G.S. § 105-33(d)) to engage in the business of peddling. These other statutory provisions are noted. G.S. § 112-35, in part, provides: "All ex-Confederate soldiers who are without means of support other than their manual labor, and who are incapacitated to perform manual labor for any reason other than by their vicious habits, and now citizens of this State, shall be allowed to peddle drugs, goods, wares, and merchandise in any of the counties of this State without a license therefor." G.S. § 14-238, in part, provides: "No person, agent, representative or salesman shall solicit or attempt to sell or explain any article of property or proposition to any teacher or pupil of any public school on the school grounds or during the school day without having first secured the written permission and consent of the superintendent, principal or person actually in charge of the school and responsible for it." G.S. § 81-10 provides for the inspection, under the direction of the State Superintendent of Weights and Measures, of products offered for sale by peddlers.

The conclusion reached is that the City of Raleigh cannot, by ordinance, prohibit conduct that is legalized and sanctioned by the General Assembly. Hence, the ordiance provision attacked by plaintiff must be and is declared invalid on the ground it is in conflict with the general State law. Davis v. Charlotte, supra, and cases cited.

Whether the City Council of Raleigh, under the powers conferred by general statutes or by the Charter of the City of Raleigh, has authority to enact an ordinance prohibiting or regulating, based on considerations of public safety, the use of its streets by mobile units for the sale of ice cream or other products is not considered or determined. Such an ordinance is not before us. Hence, we do not discuss constitutional questions to be considered in passing upon the validity of such an ordinance. In this connection, see decisions cited in Annotations, "Authorization, prohibition, or regulation by municipality of the sale of merchandise on streets or highways, or their use for such purpose," 105 A.L.R. 1051, 163 A.L.R. 1334, and decisions supplemental thereto.

It is noted that the violation of a (valid) municipal ordinance is a misdemeanor. G. S. § 14-4; State v. Barrett, 243 N.C. 686, 91 S.E.2d 917, and cases cited. There is no evidence plaintiff has engaged in any act violative of the ordinance provision now in controversy. Plaintiff's action is for a declaratory judgment to ascertain whether what it proposes to do would be an illegal act. While defendant makes no contention that plaintiff is not entitled, by an action under the Declaratory Judgment Act, to an adjudication as to the validity of the ordinance provision now in controversy, it is appropriate to say that consideration of the question as to whether an action under the Declaratory Judgment Act is an appropriate procedure in circumstances such as those here considered is deferred until directly presented for decision.

Being of the opinion, for the reasons stated, that the ordinance provision here considered, to wit, the last paragraph and sentence of Section 105 of Chapter 14 of the City Code of Raleigh, is invalid, the judgment of the court below is reversed.

Reversed.