If the statute under which the taxes were levied, and paid by plaintiff to defendant, under protest, must be construed as imposing a privilege tax on merchants doing business in Elizabeth City, and subject to the tax imposed by subsection 17, section 140, chapter 15, Private Laws of North Carolina, 1925, who shall purchase from a trustee in bankruptcy, goods, wares, and merchandise, belonging to the estate of the bankrupt, and who thereafter sell same in Elizabeth City, in the usual course of business, as merchants,- a grave question will be presented as to whether the statute is valid. So construed, the statute may be subject to the criticism that it imposes a tax in violation of the principle that classifications for the purpose of taxation must be based on real and substantial differences, and not upon arbitrary distinctions, having no just relation to the subject-matter.
If the tax is imposed by the statute only on persons, firms or corporations, whether residents of the city or itinerants, who sell therein bankrupt stocks, or stocks which have been damaged by fire, and who are not classified for purposes of taxation as merchants subject to a privilege tax graduated in accordance with the amount of their gross-sales, per annum, it would seem that the statute is valid. So construed, the statute would not be in violation of well settled principles with respect to valid classifications. See section 121, chapter 345, Public Laws of North Carolina, 1929, which contains the following paragraph:
“(d). Every itinerant salesman or merchant who shall expose for sale, either on the street or in a house rented temporarily for that purpose, any goods, wares or merchandise, bankrupt stock or fire stock, not being a regular merchant in such county, shall apply for in advance and procure a State license from the Commissioner of Revenue for the privilege of transacting such business, and shall pay for such license a tax *532of one hundred dollars in each county in wbicb he shall conduct or carry on such business.”
Upon the facts agreed in the instant case, the question as to the proper construction of the statute, upon which may depend its validity does not necessarily arise. If the statute is void, the plaintiff is entitled to recover ; if the statute is not void, but valid, then upon the facts agreed, we are of opinion that plaintifE was not subject to the tax imposed therein, and for that reason is entitled to recover. In either event, the judgment must be affirmed. It is so ordered.
Affirmed.