Rosenbaum v. City of Newbern

Where a municipality is clothed with the power to impose a tax upon persons engaged in mercantile business, the authority is subject to the fundamental restriction that it shall not be so exercised as to discriminate between persons of the same class. State railroad tax cases, 92 U. S., 575. “It is unquestionably however in the discretion of the taxing power to graduate the tax, according to the extent of the business so taxed, or to impose a single tax upon the occupation without regard to its extent. ” ' State v. Powell, 100 N. C., 525.

But the law of uniformity does not prohibit the classification by the municipality of dealers in a particular kind ■of merchandise separately from those whose business it is to sell oilier articles falling within the same generic term. The term merchant embraces all who buy and sell an3r species of moveable goods for gain or profit, but courts 'everywhere lend their sanction to legislative acts putting dealers in dry goods and dealers in spirituous liquors, ■drugs or fresh meats into different classes and imposing a license tax upon the one and a tax in proportion to capital ■employed or sales made on the others, or a tax or license *93fee of the same kind not differing in amount upon each of the sub-classes created. In State v. Worth, 116 N. C., 1007, it was held that the business of manufacturing ice was comprehended under the general term trade and that where a municipality was acting under the grant of authority to impose a privilege tax upon trades and professions, “ a levy of $66 per annum for storage, manufacture or sale of ice at wholesale with the privilege of retailing” was reasonable and constitutional and provided for no discrimination between persons engaged in storing, manufacturing or selling at wholesale or retail the particular kind of merchandise upon which the burden was imposed, but fixed the levy upon a class of traders distinctly defined in the ordinance. It was expressly held there that dealers in or manufacturers of different articles of merchandise might in the discretion of the municipal authorities be subjected, in separate classes, to license taxes varying in amount as to each of the classes. Of course it follows that the overlooking of manufacturers of shoes would not render invalid a tax upon another company whose product was ice, tobacco or cotton goods. It is therefore settled that the only uniformity contemplated in the constitutional restriction (Const., Art. Y., Sec. 3) is that between those belonging to the same class (State railroad tax cases, supra) and it would seem almost needless to cite authorities othei than State v. Worth, supra, in support of the proposition that the Legislature had the authority to delegate to the defendant the power to make such levies. Const., Art. YIIL, Sec. 4.

The levy complained of was not imposed upon property but upon the business of selling second-hand clothing. ■Had the tax been imposed upon the clothing sold as a property tax, it must have been levied in conformity to the requirements of the Constitution both as to uniformity and *94value. But it was within the sound discretion of the municipal legislators, if they were empowered to tax the occupation or business at all, to determine what amount should be paid by every person belonging to a well-defined class pointed out in an ordinance. State v. Powell, supra. It is clear that the city had authority to “levy and collect -a license tax for the privilege of carrying on any trade, profession or business ” within the limits of the city not •only under the charter but under the general law. State v. Worth, supra; Code, Sec. 3800. Whatever power the Legislature possesses under the Constitution has been delegated to the municipality, and the question for consideration here is, not whether the Court in the exercise of a ■sound discretion will hold the ordinance to be just, reasonable or wise, but whether resolving all doubts as to the ■exercise of legislative authority by its agent as would be done in favor of a statute enacted by the Legislature itself, •it clearly appears that the ordinance is unconstitutional. The authority “to levy and collect a license tax for the privilege of carrying on any trade, profession or business,” subject to a prescribed limit as to amount, necessarily carried with it by implication the power to classify the varions kinds of business, just as the Legislature might have done. If therefore it be conceded that the Court can revise the classification adopted by the city, when it does not appear upon its face that there was a purpose to discriminate in restraint of trade, there is no reason why any one of the taxes imposed in schedule B. and 0. of Chapter 116, laws 1895, of the revenue act, should not be brought before the •courts for review on the ground that it is unreasonble to levy it on that particular class of subjects, though it be admitted that it sometimes constitutes a distinct kind of business, because some dealer may have chosen to make his business more general in its character. Intheabsence *95of any evidence of a purpose to break down the sale of this species of goods, courts are powerless. It is the peculiar province of the Legislature to reform the laws so as to make the benefits extend to and the burdens bear equally upon all classes of people.

The plaintiff complains that in addition to the tax of four dollars per month levied upon her as a dealer in second-hand clothing, she is liable under another ordinance to a license tax of one dollar per month for the privilege of selling other general merchandise. If the city of'Wilmington would have been authorized to levy the tax imposed in Worth's case, upon a general merchant, notwithstanding the fact that he added to his general business that of wholesale dealer in ice, it is clear that the plaintiff could not evade a tax on one distinct business by combin. ing with it another. Because clothing may be comprehended under general merchandise, the courts cannot question the honesty or the soundness of the discretion of the city authorities in sub-dividing a larger class of dealers into two or more, distinguished by the lines of goods sold by each. Indeed, it is the duty of the courts to impute to all who exercise legislative authority proper motives and, as between two constructions of their legislation, to adopt, if possible, that which brings it within the purview of their powers. State v. Moore, 104 N. C , 714. It does not seem to be contended that the municipality is attempting to exact from the plaintiff license taxes greater in the aggregate yearly amount than the limit fixed by the charter, though another ordinance provides that a tax of one dollar per month shall be imposed on general merchants and four dollars on any dealer whose business in part or in whole, is selling second-hand clothing, since the limit applies only to the amount of any single license tax, not to the aggregate amount of two when they *96are lawfully imposed. The rule laid down in State v. Powell precludes us from reviewing the exercise of the discretion in classifying those subjected to such burdens or in determining what amount shall be imposed upon each-. But the Constitution of North Carolina authorizes the Legislature not only to impose a license tax upon the occupation of selling but a property tax upon the goods sold, provided the statute upon its face allows no discrimination, and subject to the same restrictions the Legislature may delegate this power to municipalities. State v. Stevenson, 109 N. C., 730.

The plaintiff, by way of recital, sets forth that the defendant has passed and has already enforced another ordinance, which imposes afine of fifty dollars for selling or offering for sale second hand-clothing without having it disinfected by fumigation and by paying a price fixed according to the nature of the garment as set forth in the ordinance. A part of the relief asked is not only that the city authorities be restrained from collecting more than one dollar per month as a license tax but that they be restrained from exacting in future fees so large as plaintiff has paid for disinfecting the clothing now on hand. This ordinance was passed clearly in the exercise of police power claimed to have been delegated by the State, and is an assumption of authority quite distinct from the power to levy license or taxes. Though relating to the same subject matter, the validity of the two acts is in no way dependent upon the same grants of power (State v. Stevenson, supra,) and the passage of the one has no bearing upon the right to enact the other. The previous passing of the ordinance, requiring disinfection, does not tend to show that the ordinance, the enactment of which was declared in Powell’s case to be an unreviewable exercise of sound discretion, was unauthorized. The license tax was law*97fully imposed, if the municipality was clothed with thfe power to classify, and did not discriminate in the exercise of its delegated authority. The ordinance requiring disinfection was enacted ostensibly, and until direct and unquestionable proof to the contrary is offered must be deemed in reality to have been passed, for the protection of the public health, “ The Legislature is empowered under the organic law in the exercise of its police power to restrict an individual by direct enactment in the assertion of such dominion or control over his own property or premises as may result in injury to others, provided the prohibitory or restraining statute does not upon its face discriminate in favor of one person or class of persons over another. And though the law-making power can create a municipal corpoiation and delegate legislative authority to it, it cannot clothe the creature with power to do what the Constitution prohibits the creator from doing.” State v. Tenant (28 Am. St. Rep., 716, and note) 110 N. C., 609; State v. Moore, (17 Am. St. Rep., 696) 104 N. C., 714; Magler v. Kansas, 123 U. S., 623. When the municipality, however, attempts to abuse a power expressly and rightfully gaanted to it, by restricting the dominion of the owner over his property, not according to a rule general and uniform in its application to a class of persons or to a classification of property, the ordinance imposing such restraint is unconstitutional and void. State v. Tenant, supra, and authorities there cited. But the charter (Private Laws 1879, Ch. 42, Sec. 18) empowers the municipal authorities “ by all needful ordinances to secure order, health, quiet and safety ” within the limits of the city. It 'was not unreasonable to require one who was engaged in fhe sale of second-hand clothing to turn it over to the city authorities to be disinfected. It is a .matter of universal knowledge that such clothing is the means often of coin-*98municating contagious and dangerous diseases, and it was but a proper and lawful use of the authority to protect the health of the community under local government of the city to use the means adopted to prevent the introduction of disease. The right to sell or to buy such articles is not an absolute one, but may be subjected to such restriction by the law-making power entrusted with the authority, as may be necessary to make its exercise consistent with the safety and security of others.

The general property tax being imposed under a distinct grant of authority must be considered separate and apart from the exercise of any other power, and, so considered, just such an ordinance as that under consideration has been declared to be in conformity with the constitutional requirements and consistent with the ad valorem levy on property. Gatlin v. Tarboro, 78 N. C., 119.

The plaintiff was not entitled to recover damages from the municipality for passing an ordinance in - the exercise of its legislative authority as a branch of the government (Moffitt v. Asheville, 103 N. C., 237—14 Am. St. Rep., 810, and note) and cannot maintain her status in court upon any such claim as a cause of action.

The only other remedy which the plaintiff demands, and upon which she bases he)- claim of right to maintain the action, is an injunction against the collection of the license tax of $4 per month, and against collecting the amount now paid for disinfecting. Under the provision contained in Section 76, Ch. 119, of the Laws of 1895, the injunction will not lie to restrain the'municipality unless it. appear that the levy or assessment was illegal. If, as has been shewn, it was competent to classify dealers in second-hand clothing separately from vendors of other articles of general merchandise, it would follow that it was no more illegal for the city to exact one dollar per month on one class and *99four dollars per month'on another, as license tax for distinct kinds of business, than it would have been to exact $66 per annum and an additional merchant license fee of $1 per month in Worth’s case, had the wholesale ice dealer’s establishment constituted a part of a ge eral merchants store, or to levy in addition to a particular license tax a uniform ad valorem tax on property. State v. Stevenson, 109 N. C., 730. The ordinance imposing a fine for failure to have the clothing disinfected and fixing the cost of fumigating was also within the purview of the powers of the city, and this Court has no authority to review the schedule of charges fixed by it. If the municipality has abused the powers granted, it is a grievance for which complain tmay be made to the Legislature, whose province it is to restrict or withdraw entirely its legislative authority. Eut it is obvious that the extraordinary power of the courts cannot be invoked to restrain the exercise of a discretionary Legislative power, and it is as well settled that the action for damages at law for the alleged wrongful exercise of such powers will not lie. We think therefore that there is not, in any aspect of the case, a statement of a cause of action, since no amendment could be made which would establish an apparent right to either a restraining order now or a verdict for damages on the trial of the action. There was no error iñ dissolving the restraining order. No Error.

(dissenting): The plaintiff is a merchant in the City of Newbern, carrying a stock of about $1,500, one-tenth of which, or $150, is second-hand clothing. The city has one ordinance taxing all merchants $1 per month for the privilege of merchandising within its corporate limits, and another ordinance requiring all merchants dealing in.second-hand clothing to submit them to the city authorities for fumigation to be done at the expense of the *100owner, and imposing a fine of $50 if this is not done; and a third ordinance imposing another tax on dealers in second hand clothing of $4 per month.

The plaintiff claims that this legislation on the part of the city is unlawful, unconstitutional and oppressive, and brings, this action to enjoin and restrain the city from enforcing these ordinances which require her to submit the clothing for fumigation, and to pay the privilege tax of $4 per month for selling second-hand clothing.

The .first of these ordinances providing for fumigation, falls under the doctrine of police regulations. And it has been held at this Term in State v. Taft that second-hand clothing is not per se a nuisance, and their sale could not be prohibited without, evidence that they were infected, or had been brought from a place known to be infected with contagious diseases. Then, under what is known in law as the power .of police regulation, they might do so. And as it is known that more than ordinary danger exists in the handling and distribution of this class of goods than in firsthand goods, the city or town might require them to be subjected to a pin cess of fumigation, as a kind of quarantine and protection against this extra danger. All this is allowed under what is known as the police power of the government, city or town, and wo do not see that plaintiff has any grounds to complain of the second ordinance, requiring her to submit her goods of this kind to fumigation.

But the next ordinance requiring her to pay a tax of $4 per month for the privilege of selling these goods, falls under the law of taxation. The police power of the city has nothing to do with it. The power of taxation exists in all municipal governments. They could not exist without this power. Desty on Taxation, 50. But this power is regulated and restricted by the Constitution, and also *101by the Acts creating municipalities. All taxes levied on property must be ad valorem and uniform. Constitution, Art. Y., Sec. 3. This section also authorizes the taxation of trades, professions, &c., and does not in terms provide that they shall be' uniform. But this Court in construing this section of the Constitution lias held that it means, that this tax shall be uniform. Gatlin v. Tarboro, 78 N. C., 119. And the question presented is, is this a uniform tax levied for the purpose of revenue to support the City government ’ or is it an attempt to do by taxation what it has no right to do under its police power — destroy this business in the City of Newbern ? This is a business in which persons -of small means are most likely to engage, as it does not require much capital to carry it on. And it is easy to see that a tax upon the privilege of carrying on any mercantile business, of nearly one-third of the capital per annum, will destroy it. And while it is the duty of the Court to attribute good motives to the city authorities and to put such a construction upon their legislation as to sustain its legality, if it is susceptible of such construction, it is equally the duty of the Court not to sustain them, if it appears that their acts are in contravention of the Constitution, or of well-defined personal rights. Treating this, as we must treat it, as purely an act for revenue, we cannot see why persons engaged in the sale of this kind of merchandise shall pay four times as much for the privilege, as those engaged in selling first-hand clothing.

And taking into consideration the three ordinances referred to above, it is apparent to us that the purpose of this legislation was to run this business out of the trade in Newbern, and in coming to this conclusion we do not attribute bad motives to the city fathers who passed these ordinances. We suppose they thou -ht it would be a good thing *102for the city to do so. But wo only bold that there are legal reasons why they cannot do so.

But is this tax uniform, as required by the Constitution, and construed in Gatlin v. Tarboro, supra f It is seriously contended that it is, and State v. Worth, 116 N. C., 1007; State v. Moore, 104 N. C., 714, and State v. Stevenson, 109 N. C., 730, are cited as authorities to sustain this contention. And while this case presents an interesting question, involving constitutional powers and personal rights, it seems to us that it is distinguishable from the cases cited for defendant.

State -v. Stevenson was for not returning purchases as required by the revenue act, for the reason, as he claimed, that he was protected by the law of Inter-State Commerce.

State v. Moore was an indietrneut for selling thirteen pounds of cotton after night, without complying with the terms required by the statute and was sustained by this Court upon the ground that it fell within the lines of the police powers of the State, which ure have seen have nothing to do with the case now under consideration.

State v. Worth was an indictment for violating an ordinance of the city of Wilmington, putting a tax on .all manufacturers of ice, who also should have the privilege of selling at wholesale or retail. And this Court held that the ordinance was constitutional; that manufacturers of ice were a distinct class and that the tax applied to all such manufacturers alike, and, nothing more appearing to the Court, the ordinance was sustained. It was contended in that case that “ manufacturer ” was a generic term, and the same tax should be put on all manufacturers — on the shoemaker at his bench — on the manufacturer of steam engines, or of ice, to make the tax uniform. The Court did not agree to this proposition, and it is claimed that the decision in Worth's case is in effect an adjudication of *103this ease in favor of the defendant. We do not think so. There must be a line drawn somewhere, or that beneficent provision of ihe Constitution requiring uniformity of taxation will be emasculated and destroyed. It may be that Worth’s case is as far as we ought to go. But whether this be so or not, there seems to be quite a distinction between it and the one under consideration. It is true that “manufacturer” is a generic term, but this is subdivided into many kinds of manufacturers — such as a manufacturer of cotton, of tobacco, steam engines, farming implements, and so many others that the generic term, “ manufacturer,” does not amount to a definition, and one gets no definite information as to the business, in which the party is engaged, from this general term.

It is contended that “merchant” is a generic name, and includes all persons who buy and sell goods of any kind ; that a man who sells liquor or drugs or horses is a merchant. So he may be in the broad “generic” sense. But they have another well-defined cognomen. If you were asked as to the business of a druggist, you would not be likely to say he is a merchant in Raleigh; if you were to ask as to what business B. was engaged in, and he was a liquor dealer, you would not be likely to say he is a merchant in Morgan ton ; or if you were asked as to the business of C. who owns a livery stable and buys and sells horses, you would not be likely to say he is one of the merchants of Newbern. But if you were asked as to the plaintiff’s business, you would most likely say she is a merchant in Newbern. That would convey the business definition as to her occupation. You would be no more likely to go on and say that she has a mixed stock of goods of firsthand clothing and second-hand clothing, than you would be likely to say that Sherrill & Co., of Statesville, carry a general line of merchandise, also ready-made clothing and *104family groceries. Such definitions as these would not likely be given, unless specially called for by some one interested in knowfing more about the business than simply to know whether he was a merchant.

It is admitted that in order to sustain this legislation on the part of defendant, treating it simply as a revenue act, they may make the same distinction and discrimination against any merchant in Newbern, who sells shoes as a part of his stock, or who sells tobacco as a part of his stock, or who sells first-hand clothing as a part of his stock. And without enumerating further, that they may select any article of merchandise and discriminate against the merchant who sells it 400 % if they choose to do so. And it is contended there is no Constitution, no law, and no power to protect the unfortunate merchant from such unjust discrimination. We cannot give our assent to such a proposition. And as it is admitted that, unless the term “ merchant ” can be thus chopped up, the tax imposed by this ordinance is not uniform, I therefore think that there is error.