Metro-Goldwyn-Mayer Distributing Corp. v. Maxwell, 209 N.C. 47 (1935)

Dec. 11, 1935 · Supreme Court of North Carolina

209 N.C. 47

METRO-GOLDWYN-MAYER DISTRIBUTING CORPORATION v. A. J. MAXWELL, Commissioner of Revenue.

(Filed 11 December, 1935.)

1. Taxation E c — Demurrer in suit by taxpayer to recover tax paid held properly sustained, statutory procedure not having been followed.

Plaintiff failed to observe the statutory method provided for testing the validity of the tax paid under the Revenue Act, but instituted suit alleging that the tax was paid under compulsion in that plaintiff was notified that it would be subject to fine and imprisonment if it did business in the State without first paying the tax, that the tax is discriminatory and unlawful, and that the statutory procedure prescribed for the recovery of the tax is unconstitutional as applied to plaintiff. Held: The allegation that the tax was paid under compulsion was a mere conclusion of the pleader, and the demurrer of the Commissioner of Revenue was properly sustained.

2. Pleadings D e—

A demurrer admits facts properly pleaded, but not inferences or conclusions of law.

Devin, J., took no part in the consideration or decision of this case.

Appeal by plaintiff from Oowper, Special Judge, at April Special Term, 1935, of Wake.

Civil action to recover license tax, alleged to have been illegally collected.

Tbe complaint alleges:

1. Tbat on or about 1 June, 1933, tbe plaintiff paid to tbe defendant Commissioner of Eevenue $1,250 annual Schedule B license tax, as assessed under tbe Eevenue Act of 1933, for tbe privilege of distributing moving picture films in North Carolina, which tax is discriminatory and unlawful.

2. Tbat said payment was made under compulsion, in tbat printed notice was received by plaintiff from defendant to tbe effect tbat doing business in tbe State without first paying tbe tax as imposed by tbe Eevenue Act would subject tbe plaintiff to fine and imprisonment.

3. Tbat tbe provisions of tbe statute requiring payment of tax under protest and demand for return within thirty days, and suit if not refunded in ninety days, are unduly restrictive, burdensome, and unconstitutional as applied to tbe plaintiff.

Wherefore, plaintiff demands return of tax paid as above indicated.

Demurrer interposed on tbe ground tbat tbe complaint does not state facts sufficient to constitute a cause of action. Demurrer sustained. Plaintiff appeals, assigning error.

John Newitt for plaintiff.

Attorney-General Sea/well and Assistant Attorneys-General Aiken and Bruton for defendant.

Stacy, C. J.

It appears on tbe face of tbe complaint tbat tbe tax in question was levied and collected under tbe Eevenue Act of 1933; tbat plaintiff did not observe tbe statutory method provided for testing tbe validity of any tax paid thereunder; and tbat tbe allegation of payment under compulsion is a mere conclusion of tbe pleader unsupported by tbe facts. This renders tbe complaint bad as against a demurrer. Bunn v. Maxwell, 199 N. C., 557, 155 S. E., 250; Mfg. Co. v. Comrs. of Pender, 196 N. C., 744, 147 S. E., 284; Rotan v. State, 195 N. C., 291, 141 S. E., 733; Maxwell v. Hinsdale, 207 N. C., 37, 175 S. E., 847.

Tbe demurrer admits facts properly pleaded, but not inferences or conclusions of law. Phifer v. Berry, 202 N. C., 388, 163 S. E., 119. Tbe action was properly dismissed.

Affirmed.

Devin, J., took no part in tbe consideration or decision of this ease.