Wingate v. Sluder, 51 N.C. 552, 6 Jones 552 (1859)

Aug. 1859 · Supreme Court of North Carolina

51 N.C. 552, 6 Jones 552

T. C. WINGATE v. E. SLUDER.

The Legislature can confer upon the commissioners of an incorporated town, authority to levy a tax upon the property, of its citizens for the purpose of raising revenue, and make that authority over each subject of taxation unlimited.

The authority vested in the commissioners of the town of Asheville, is not taken away, nor abridged by the lllth chap, of the Revised Code.

ActioN of TRESPASS, tried before Bailey, J., at the Special Term, July, 1859, of Buncombe Superior Court.

Bill of exceptions agreed on by counsel.

The plaintiff was the owner of a grocery in the town of Asheville, which said town was incorporated by an act of the General Assembly, passed in the year 1848, which was amended by another act passed at the session of 1850, both of which are sufficiently noticed and set out in the opinion of this Court. By virtue of the authority of these two acts, and to raise a revenue for the said town, the commissioners imposed a tax of fifty dollars on the plaintiff’s grocery, which demand was placed in the hands of the defendant, who was the collecting officer for the said town. The plaintiff paid twenty-five dollars of the tax laid, but refused to pay any more, and the goods, levied on, were duly exposed to sale, to make the remainder of the tax. Bor this, the action was brought.

It was insisted by the plaintiff’s counsel, that the commissioners had no right, or authority, to tax his grocery more than $25, his Honor was of a contrary opinion, and upon instructions to that effect, a verdict was found for the defendant, and the plaintiff appealed.

No counsel appeared for the plaintiff in this Court.

Merriman, for the defendant.

Battle, J.

By the second section of the act of 1850, chap. 321, entitled “An act to amend an act passed at the session of 1848, entitled an act to incorporate the town of Asheville,” it is declared that it shall be competent for the commissioners of the said town, to increase the tax upon any of the subjects of taxation in the said act named, and to add to them any other property, or thing, that they may deem proper, in order to raise sufficient revenue for the purposes of the said town.” Among the subjects of taxation, specified in the above recited act of 1848, ch. 236, sec. 4, are groceries, upon which, therefore, the commissioners of Asheville, are expressly authorised to increase the tax to any extent they may think necessary for raising sufficient revenue for the purposes of the town. If, then, the Legislature had power to confer upon the commissioners of the town the authority to levy a tax upon the property of its citizens at all, it was conferred upon them in the present case, and of the amount to be raised from each subject of taxation, they were the sole judges. That the Legislature can confer such authority upon the commissioners of a town, has long been conceded by universal acquiescence in its practical exercise. See Taylor v. Commissioners of Newbern, 2 Jones’ Eq. 141.

The authority thus conferred by the act of 1850, is not taken away or abridged by the 111th chapter of the Revised Code, as the provisions of that chapter are, by the 23rd section, applied only to such incorporated towns, “ when the same shall not be inconsisent with the provisions of special acts of incorporation, or special laws in respect thereto.” The judgment for the defendant, upon the case agreed, was proper, and must be affirmed.

Per OuRiah, Judgment affirmed.