Weinstein v. City of Raleigh , 218 N.C. 549 ( 1940 )

BARNHILL, J., dissents.

CLARKSON and DEVIN, JJ., concur in dissent. This is an action to recover $62.50 paid as a license tax upon a junk dealer, and penalties, which payment was made under protest by the plaintiffs to the defendant, heard upon an agreed statement of facts.

An ordinance of the city of Raleigh reads: "Every person engaged in the buying and/or selling of material commonly known as junk, within the city or within a two-mile radius thereof, shall be deemed a ``junk dealer' within the meaning of section 168 of the State Revenue Act, and shall pay an annual license of $62.50."

Section 168 of the State Revenue Act (sec. 168, ch. 158, Public Laws 1939) reads: "Every person, firm or corporation engaged in the business of buying and/or selling or dealing in what is commonly known as junk, . . . shall . . . obtain . . . a State license, . . . and shall pay for such license an annual tax, according to the following schedule: . . . In cities or towns of 30,000 population or more $125.00. Provided, that if any person, firm or corporation shall engage in the business enumerated in this section within a radius of two miles of the corporate limits of any city or town in this State, he or it shall pay a tax based on the population of such city or town according to the schedule above set out. Counties, cities and towns may levy a license tax not in excess of one-half of that levied by the State."

The agreed statement of facts contains, inter alia, the following:

"2. The plaintiff buys and sells junk in the city of Raleigh, N.C. which city has a population of over 30,000 inhabitants."

"5. The city of Raleigh, under its general police power, maintains and contends that it has a right to levy and collect under its general police power a license or franchise tax upon junk dealers located outside of the corporate limits of its city of Raleigh and within two miles of the corporate limits thereof."

"7. The plaintiff paid the tax under protest to the city tax collector and brings this suit to recover the amount of taxes and penalties paid, contending that the city of Raleigh cannot levy or collect a license or privilege tax upon the business of a junk dealer located outside of and beyond the territorial limits of the city of Raleigh."

The defendant city in its brief states: "It is contended by the defendant in this case that the privilege of buying and selling junk inside the city limits of Raleigh (or other counties, towns, or cities) is the privilege upon which this tax is levied; . . ."

The agreed facts are ambiguous and contradictory. If the facts are as agreed and indicated in 2, to the effect that the plaintiffs buy and sell junk in the city of Raleigh, and it is for this that the license was collected, it might appear that the tax was legally levied under the provisions of the statute and ordinance, as contended in defendant's brief; on the other hand, if the facts are as agreed and indicated in 5 and 7, to the effect that the city of Raleigh "contends" it has a right to collect a license tax upon junk dealers located outside of its corporate limits and within two miles thereof, and the case was tried upon this theory, it might appear that such a license tax was illegal. It does not appear whether the license tax levied and paid under protest was for the privilege of buying and/or selling junk within the corporate limits of the city of Raleigh, or for the privilege of conducting a business of a junk dealer without the city limits but within two miles thereof. The confusion is further indicated in the statement of the question involved in the briefs of the respective parties. The plaintiffs state the question to be "Is the plaintiffs' junk business owned, located and operated outside the city of Raleigh exempt from a license tax levied by the city?"; whereas the defendant states the question to be "Is not plaintiffs' junk business liable to the city of Raleigh for a license tax levied by the city . . . when said establishment is located just outside of the city of Raleigh, but the business is carried on in the city of Raleigh?"

Owing to this confusion the parties will be given an opportunity to amend the agreed statement of facts and remove the ambiguity and contradiction therein and submit the amended statement to the judge of the Superior Court for decision; or if they fail to reach an agreement as to the facts the uncontroverted issues may be submitted to a jury. A precedent for this procedure is found in Roebuck v. Trustees, 184 N.C. 611, andMiller v. Scott, 185 N.C. 93.

Error and remanded.