Commissioners v. Patterson, 53 N.C. 182, 8 Jones 182 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 182, 8 Jones 182

COMMISSIONERS OF CONCORD v. PATTERSON & KESLER.

The Legislature may delegate a portion of the general taxing power to incorporated towns for corporation purposes, and it was Held that the statute, Rev. Code, chap. Ill, sec. 13, empowering the commissioners of incorporated towns to levy a tax of twenty-five dollars upon retailers of spirituous liquors by the quart measure or under, was a proper exercise of their power.

This was an action of debt upon a town ordinance, submitted to Dick, J., at the last Fall Term of Cabarrus Superior Court, upon the following case agreed. »

By an act of the General Assembly passed at the session of 1850 and ’51, (chapter 329,) the plaintiffs are constituted a corporation with all the necessary and usual powers and provisions of municipal corporations. Section 30 of that act, provides that the County Court of Cabarrus shall grant no license to retail spirituous liquors by the small measure within said town, unless the applicant shall have first obtained from the board of commissioners their certificate of their assent to the same, and for which, they are authorised to demand the sum of ten dollars for the benefit of the town.

In April, 1857, among other ordinances passed and duly published, was one entitled, “ Town taxes,” which incorporated a provision of the general law, entitled “Towns,” (Eev. Code, chap. Ill, sec. 13,) and levied a tax of twenty-five dollars for a revenue “ oil all ^persons (apothecaries and druggists excepted) retailing liquors or wines of the measure of a quart or less.”

The defendants were the owners of a grocery in said town, and sold liquors and wines by the measure of a quart, they had no license to retail. They refused to pay the tax of twenty-five dollars thus levied, and this suit was brought by a warrant to recover the same.

The only question intended to he submitted to this Court was, whether the defendants were liable to this tax of twenty-five dollars.

On the foregoing facts, his Honor being of opinion with the plaintiffs, gave judgment jpro forma accordingly. Defendants appealed to this Court.

Fowls, for the plaintiffs.

V~. O. JBa/rringer, for the defendants.

Manly, J.

We are not informed upon what ground the recovery is resisted in this case, and are unable to discover any. The general law, empowering our incorporated towns to raise a revenue by taxing certain specified objects, provides that #tax, not exceeding twenty-five dollars, may be levied on all persons (apothecaries and druggists excepted,) retailing and selling liquors and wines of the measure of a quart or less. The tax in question seems to be in strict conformity with this power. The power of the Legislature to tax dealers in spirituous liquors at will, restrained only by their sense of justice and the interests of the country, we take to be unquestionable. The legislative'authority to delegate this power has been exercised from the foundation of the government, and is equally well fixed. We are not aware of any thing in the laws, by which these powers have been parted with or abridged.

Tire indictable character of a retailing in quantities less than a quart without license, does not at all touch the taxing power.

By the general revenue law, a tax in behalf of the State of five per cent, is levied on capital invested by dealers in liquors, &c., Rev. Code, chap. 99, sec. 2é.

This exercise by the Legislature of the power to tax, and the delegation of it at the same time within certain limits, in respect to the same objects, is of frequent occurrence in the code of the State.

The two taxes are imposed for different purposes. It would be perfectly competent for the Assembly to do both; to tax an object to a certain extent for one purpose, and again to tax it in a similar way for another purpose. And we see no good reason why it may not divide and delegate a portion of this power when it is necessary or expedient to do so.

The government of North Carolina, in respect to the power of taxation, has been conducted.in this way from the* beginning.

The Legislature exercises directly a portion of the taxing power for State purposes, the county court, under authority from the Legislature, exercises another portion for county purposes, and incorporated towns still another portion for corporation purposes, all upon the same objects of taxation.

We are of opinion that the^?n? forma judgment below, for the plaintiff, is correct.

Per Curiam,

Judgment affirmed.