Commissioners of Asheville v. Means, 29 N.C. 408, 7 Ired. 408 (1847)

Aug. 1847 · Supreme Court of North Carolina

29 N.C. 408, 7 Ired. 408

THE COMMISSIONERS OF THE TOWN OF ASHEVILLE vs. JAMES B. MEANS.

The commissioners of,an incorporated town have no right to impose any taxes, but such as are expressly authorized by the Act of incorporation.

A power to enact bye-laws, &c. for the good government of the town, of itself, confers no right to levy taxes.

Appeal from tbe Superior Court of Law of Buncombe County, at the Special Term in. June 1846, his Honor Judge Battle presiding.

This was an action, commenced by a warrant before a single magistrate, to recover the sum of twenty-five dollars, which the Board of Commissioners for the town of Asheville had imposed, as a tax upon the defendant as a retailer of ardent spirits. It was admitted, that the defendant resided and did business, as a retailer, within the limits of the town ; and the plaintiffs contended that they were authorized to impose and collect the tax sued for, by virtue of the Act of 1840, ch. 58, entitled “ An Act to incorporate the town of Asheville in the County of Buncombe and to appoint Commissioners thereof.” The defendant insisted, that the Act referred to did not confer the power upon the plaintiffs to impose the tax sued for, and of this opinion was the Court. Upon the intimation of this opinion, the plaintiffs submitted to a judgment of non-suit and appealed.

N. W. Woodfin and Edney, for the plaintiffs.

Gaither, for the defendant.

Daniel, J.

The Judge was of opinion, that the Act of Assembly mentioned in the case, did not confer the power on the commissioners, to lay the tax on the defendant, for the non-payment of which he was sued. The third section of the Act empowers the commissioners of Asheville to lay a tax, annually, on the property and inhabitants of the said town, not exceeding ten cents on each hundred dollars valuation of real estate in the said town,'and ten cents on every taxable poll, as they shall deem necessary for the repair of the streets and for the good of the said corporation. It seems that the Legislature has expressly conferred on the commissioners the power of taxing but two objects, to-wit: the real estate, and polls within the limits of the town. The Legislature, designating two objects of taxation, intended, as it seems to us, to exclude from the taxing power of the commissioners every thing else. It would have been very imprudent legislation, to have permitted the commissioners to tax any-and every thing in the town they might think fit, and that, without limit in the amount of the tax. 'The powers conferred on them, to pass bye-laws for the good government of the town, does not authorize them to make Lye-laws to lay taxes on any other things than those expressly named by the Legislature. We think that the-judgment must be affirmed.

PER CüRIAM. Judgment affirmed,