Wilson v. County of Wake

199 S.E.2d 665 (1973) 19 N.C. App. 536

George W. WILSON
v.
COUNTY OF WAKE.

No. 7310SC538.

Court of Appeals of North Carolina.

October 10, 1973.

Poyner, Geraghty, Hartsfield & Townsend by N. A. Townsend, Jr. and Paul E. Castelloe, Raleigh, for plaintiff-appellees.

Wake County Tax Atty., J. Bourke Bilisoly and Wake County Atty. Edwin N. Kearns, Raleigh, for defendant-appellant.

CAMPBELL, Judge.

Article I, Section 10, Clause 2 of the United States Constitution provides:

"No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws, and the net Produce of all Duties and Imposts laid by any State on Imports or Exports shall be for the Use of the Treasury of the United States, and all such Laws shall be subject to the Revision and Control of the Congress."

The United States Supreme Court interpreted this constitutional provision in Brown v. State of Maryland, 25 U.S. (12 Wheat.) 419, 6 L. Ed. 678 (1827). The court held that the right to import necessarily implies the right to sell. The court went on to say:

"[T]here must be a point of time when the prohibition ceases, and the power of the State to tax commences. . . . It is sufficient for the present to say, generally, that when the importer has so acted upon the thing imported that it has become incorporated and mixed up with the mass of property in the country, it has, perhaps, lost its distinctive character as an import, and has become subject to the taxing power of the state; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution."

The defendant, Wake County, contends that an entire shipment, e. g., the hold of the ship, constitutes the original package. Defendant cites E. J. Stanton & Sons v. Los Angeles County, 78 Cal. App. 2d 181, 177 P.2d 804 (1947), cert. denied, 332 U.S. 766, 68 S. Ct. 75, 92 L. Ed. 352 (1947); Volkswagen Pacific, Inc. v. City of Los Angeles, 7 Cal. 3d 48, 101 Cal. Rptr. 869, 496 P.2d 1237 (1972); and Mexican Petroleum Corp. v. City of South Portland, 121 Me. 128, 115 A. 900, 26 A.L.R. 965 (1922). In each of these cases except the Volkswagen, supra, case, the goods were incapable of packaging and fungible, it being impossible to distinguish which pieces of lumber or which gallon of oil was part of the original shipment. Such is not the case here, even with the unpackaged items. In the case of Florida Greenheart Corp. v. Gautier, 172 So. 2d 589 (Fla.1965), cert. denied, 382 U.S. 825, 86 S. Ct. 56, 15 L. Ed. 2d 70 (1965), the Florida Supreme Court expressly rejected the Stanton decision and held that each piece of lumber rather than the entire shipment constituted the original package. In Garment Corp. v. Tax Comm., 32 Mich.App. 715, 189 N.W.2d 72 (1971), cert. denied, City of Detroit v. Garment Corp. of America, 404 U.S. 992, 92 S. Ct. 538, 30 L. Ed. 2d 544 (1971), the Michigan Court of Appeals held that cartons of industrial garments and not the shipping vans were the original package. Several cases have been decided on the grounds that the goods have not been so acted on as to lose their immunity, and in each case it had to have been assumed that the original package was not the entire shipment. Citroen Cars Corp. v. City of New York, Dept. of Fin., 30 N.Y.2d 300, 332 N.Y.S.2d 882, 283 N.E.2d 758 (1972); Standard-Triumph Motor Co. v. City of Houston, Texas, 220 F. Supp. 732 (S.D.Texas, 1963), vacated on other grounds, 347 F.2d 194 (5 Cir. 1965), cert. denied, 382 U.S. 974, 86 S. Ct. 539, 15 L. Ed. 2d 466 (1966); Emhart Corporation v. Town of West Hartford, 28 Conn.Supp. 134, 253 A.2d 670 (1968); Sterling Liquor Distributors, Inc. v. County of Orange, 3 Cal. App. 3d 510, 83 Cal. Rptr. 571 (1970), cert. denied, 400 U.S. 822, 91 S. Ct. 43, 27 L. Ed. 2d 50 (1970); Tricon, Inc. v. King County, 60 Wash.2d 392, 374 P.2d 174 (1962), cert. denied, 372 U.S. 227, 83 S. Ct. 679, 9 L. Ed. 2d 714 (1963); Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 218, 53 S. Ct. 373, 77 L. Ed. 710 (1933), and Department of Revenue v. Beam Distilling Co., 377 U.S. 341, 84 S. Ct. 1247, 12 L. Ed. 2d 362 (1963). We hold that on the facts of this case that the entire shipment is not the "original package" and that the original package has not been broken by selling any one package or pallet out of the shipment.

Defendant contends that even if the original package is unbroken that by separating and stacking the imported goods that they have been so acted on as to lose their immunity because they have been put to the use for which they were imported. Hooven & Allison Co. v. Evatt, 324 U.S. 652, 65 S. Ct. 870, 89 L. Ed. 1252 (1945). Defendant cites for authority Youngstown Sheet and Tube Co. v. Bowers and U. S. Plywood Corporation v. City of Algoma, 358 U.S. 534, 79 S. Ct. 383, 3 L. Ed. 2d 490 (1959), and In Re Publishing Company, 281 N.C. 210, 188 S.E.2d 310 (1972). These cases, however, involved importation for manufacture and the "current operational needs" doctrine and as such do not apply to the case at bar. Defendant also cites Thyssen Steel Corp. v. Michigan Tax Commission, 38 Mich.App. 363, 196 N.W.2d 325 (1972), where goods imported for sale lost their exempt status. Thyssen, supra, however, is distinguishable because there the importer of coiled steel decoiled and treated the steel for oxide scale to correct such defect and restore the coils to marketable status. The goods in the case at bar which are stored in the original packages or pallets by the plaintiff in the same form and condition in which they are imported have not been acted on in any way so as to cause the unsold portion of the unbroken packages to lose their immunity. See Citroen Cars Corp. v. City of New York, Dept. of Fin., supra, and Standard-Triumph Motor Co. v. City of Houston, Texas, supra. The sorting and stockpiling of imported items in preparation for sale does not, by itself, cause the goods to lose their exempt status. Florida Greenheart Corp. v. Gautier, supra.

Finally, defendant claims that since the Wake County ad valorem tax is an equal tax on all goods, that it is not an impost on imports. This argument was laid to rest over a century ago in Low v. Austin, 80 U.S. (13 Wall.) 29, 20 L. Ed. 517 (1872) where the court said: "It is not a discriminating tax that is forbidden, but any impost or duty whatever."

Affirmed.

MORRIS and BALEY, JJ., concur.