Weinstein v. City of Raleigh , 219 N.C. 643 ( 1941 )

ClabksoN, J.

Plaintiff paid tbe junk dealers’ license tax levied by tbe defendant, city of Raleigh, under protest and brought this action to recover same. N. C. Code, 1939 (Micbie), sec. 1919.

This action has been before this Court heretofore. Weinstein v. Raleigh, 218 N. C., 549. It was there held: “Where in an action against a municipality upon an agreed statement of facts to recover a license tax paid under protest, tbe facts agreed are ambiguous and conflicting so that it is not clear whether tbe right to levy tbe tax was asserted upon tbe ground that plaintiff was carrying on tbe business specified within tbe city, or whether tbe city contended it bad tbe right to collect tbe tax on tbe business located and carried on outside tbe city limits but within two miles thereof, tbe case will be remanded so that tbe statement of facts may be amended to remove tbe ambiguity or so that, if tbe parties fail to reach an agreement, tbe controverted facts may be submitted to a jury.”

Tbe only question presented on this appeal is whether the plaintiff, junk dealers, were “buying and/or selling material commonly known as junk, within the City of Raleigh,” under the provisions of the city ordinance and section 168 of the Revenue Act of 1939, chapter 158. Under the facts found by the court below, we think plaintiff was. The record shows that the parties to the controversy agreed that the court below could “hear the evidence and find the facts and render judgment thereon.” The court below found: “The plaintiff firm regularly and customarily makes purchases of such articles of junk as old automobiles, automobile frames, tires, scrap iron and scrap copper from a large number of persons and firms having these articles for sale within the City of Raleigh, and regularly deals with practically all of automobile dealers and tire stations in said city, buying quantities of old tires, car frames and cars in a unit, and selling individual items from old cars to garages and mechanics of the City of Raleigh,” etc.

Upon the findings of fact the court below held as a matter of law: “That the plaintiff is engaged in the business of buying and selling and dealing in what is commonly known as junk, within the City of Raleigh, which is a city of more than 30,000 population, and, further, that the plaintiff is subject to the tax imposed under the ordinance of the City of Raleigh.”

We think the following' cases support defendant’s contentions: Hilton v. Harris, 207 N. C., 465; S. v. Bridgers, 211 N. C., 235, as ivell as the opinion of the Court in this case on the former hearing. See S. v. Johnston, 139 N. C., 640.

The case of Kenny Co. v. Brevard, 217 N. C., 270, is distinguishable from the present case. It was said in Hilton v. Harris, supra, at p. 473 : “If the plaintiffs were not required to pay this tax for the trade or business it carries on in Concord, a situation would arise that those living in Concord and carrying on this kind of trade or business, who paid the tax — it would injure their business, as they would have to pay a tax of $100.00 and the plaintiff would not; consequently, the plaintiffs would undersell the Concord bakers. Such favoritism would tend to monopolize and, in time, destroy competition, which is sometimes called ‘the life of trade.’ ”

For the reasons given, the judgment of the court below is

Affirmed.