#### STATE v. NORMAN WILLIAMS.

(Filed 6 March, 1912.)

1. Taxation — Uniformity—Constitutional Law — Interpretation.

While the taxing of trades is not expressly included in the rule of uniformity declared by our Constitution, Art. V, sec. 3, the courts, by interpretation, will subject it to the same rule, in this respect, which is prescribed for the subjects therein enumerated ; for a different rule would be inconsistent with natural justice and with the intent as gathered from the section referred to.

*6112. Same — Different Classes of Taxation.

In laying a tax, the different subjects thereof may be reasonably, though not arbitrarily, classified, and a different rule of taxation prescribed for each class, provided the rule is uniform in its application to the class for which it is made. Constitution, Art. V, sec. 3.

3. Same — Cities and Towns — Discrimination.

Constitutional and legislative authority conferred upon a municipality to tax does not enable it to create a privilege for the purpose of taxing it, nor to discriminate between persons exercising the same privilege, by imposing a tax upon one of a class, at a higher rate, in a different mode or upon other principles than one applied to the exercise of the same privilege by others of the same class.

4. Taxation — Cities and Towns — Municipal Powers — Legislation— Powers Conferred — Constitutional Law.

The legislative power conferred upon a municipality to tax cannot be construed to extend further than its charter permits, and any attempt to impose burdens upon some of a class from which others of the same class are exempted is void as being beyond the granted powers and as an exercise of partial legislation.

5. Taxation — Cities and Towns — Legislature—Police Powers — Reasonableness — Constitutional Law.

Ordinances passed by a municipality in the exercise of the police power or for the purpose of revenue, and intended to regulate or control the sale of articles in a town or city, or in other matters, must be reasonable, and are subject to the determination of the courts as to what are reasonable regulations within the powers granted by the Legislature.

6. Taxation — Cities and Towns — Municipal Powers — Discrimination —Restraint of Trade — Constitutional Law.

A town ordinance required every person, firm, or corporation in the State, soliciting or taking orders for goods at retail, to be delivered in the town by nonresident merchants, firms, or corporations resident in the State, to pay a certain tax: Held, the ordinance was discriminative, in restraint of trade, and unconstitutional, and defendant could not be held for a criminal violation thereof.

Appeal from Garter, J., at October Term, 1911, of OabteRet.

The facts are sufficiently stated in the opinion of the Court.

*612 Attorney-General Bicleett and Assistant Attorney-General Gal-vert for the State.

No counsel for defendant.

WalKeb,, J.

Tbe defendant was convicted in tbe Mayor’s Court of Morebead City for tbe violation of an ordinance of tbe town wbicb required “every person, firm, or corporation in tbe State, soliciting or taking orders for goods at retail, to be delivered in tbe town by nonresident merchants, firms, or corporations resident in tbe State, to pay a tax of $10 per day or $30 per year.” Defendant appealed to tbe Superior Court, in wbicb a special verdict was returned by tbe jury finding tbat tbe defendant represented one A. A. Joseqib, a merchant tailor or clothier of Goldsboro, N. C., and solicited and received orders in said town of Morebead City for tailor-made clothes, to be delivered to customers there, without having paid tbe tax imposed by tbe ordinance. Upon this finding tbe court held tbe ordinance to be invalid, directed a verdict to be entered accordingly, and discharged defendant; and tbe State appealed.

Tbe Constitution, Art. Y, sec. 3, authorizes tbe Legislature to tax trades, professions, franchises, and incomes, provided tbat no income shall be taxed when tbe property from wbicb it is derived is taxed. In accordance with this article, tbe Legislature, by Private Laws 1905, cb. 254, see. 12, provided tbat tbe Commissioners of Morebead City should have tbe power to levy and collect a fair and reasonable special or license tax, and among others, on tbe following subjects: “Itinerant merchants, peddlers, and transient dealers, drummers or commercial travelers, and every agency for tbe sale of merchandise not manufactured in tbe town, and all other subjects taxed by tbe State.” Tbe ordinance in question was enacted under authority supposed to have been given in tbe passage we have taken from tbe amended chartei* of tbe town, and we are to say whether it is valid or not.

Tbe Constitution (Art. Y, sec. 3) provides tbat “Laws shall be passed taxing, by a uniform rule, all moneys, credits, investments in bonds, stocks, joint-stock companies or otherwise, and also all real and personal property, according to its true value in money,” and there is conferred in tbe same section tbe power to tax trades, professions, and so forth, as above set out.

*613Tbis Court bas beld tbat tbe rule of uniformity applies to tbe latter provision as rnucb as to tbe former, although there are no express words to tbat effect in tbe section, it being considered tbat a tax not uniform, as properly understood, though levied on trades, professions, or privileges, would be so inconsistent with natural justice, and with tbe intent so apparent in tbe section we have quoted, tbat its collection would be restrained as unconstitutional. Gatlin v. Tarboro, 78 N. C., 119; Worth v. R. R., 89 N. C., 291. And tbis may be taken as tbe settled construction of tbe'section.

It may also be considered as settled tbat, in laying tbe tax, tbe different subjects may be reasonably, though not arbitrarily, classified, and a different rule of taxation prescribed for each class, provided tbe rule is uniform in its application to tbe class for which it was made. R. R. Tax Cases, 92 U. S., 575; R. R. v. Worth, supra. As stated in those cases, tbe result must be to prevent discrimination among tbe individuals or subjects of any one class, based upon special privileges, immunities, or exemptions allowed to one and not to tbe others. If an ordinance, therefore, is not founded upon tbis fair and just basis, it will be deemed unreasonable and violative of tbe fundamental principle of taxation.

Constitutional and legislative authority conferred upon a municipality to tax does not enable it to create a privilege for tbe purpose of taxing- it, or to discriminate between persons exercising tbe same privilege, by imposing a tax upon one of a class at a higher rate, in a different mode, or upon other principles than one applied to tbe exercise of tbe same privilege by others of tbe same class. Tbe power to tax extends no further than is permitted by its charter, and any attempt to impose burdens upon some of a class from which others are exempted would be void, as being beyond tbe granted powers of tbe municipality, and as an exercise of partial legislation. Nashville v. Althrop, 45 Tenn., 554; Cooley’s Const. Lim., 390.

Tbe defendant can be beld liable to taxation as a merchant, under tbe general laws of tbe State or of tbe municipality, in tbe same manner and to tbe same extent as all other merchants of' tbe same class exercising these privileges within tbe corporation, but not otherwise, or farther than they.

*614When the by-law of a municipal corporation, enacted under a general grant of power or by virtue of its incidental authority, is partial, unreasonable, or oppressive, it will be declared void, as an unwarranted exercise of its taxing power. Simrall v. Covington, 90 Ky., 444. “Municipal by-laws must also be reasonable. Whenever they appear not to be so, the Court must, as a matter of law, declare them void. ... So a by-law, to be reasonable, shojild be in harmony with the general principles of the common law.” Cooley on Const. Lim., 200, 202. “As it would be unreasonable and unjust to make, under the same circumstances, an act done by one person penal, and if done by another not so, ordinances which have this effect cannot be sustained. Special and unwarranted discrimination, or unjust or oppressive interference in particular cases, is not to be allowed. The powers vested in municipal corporations should, as far as practicable, be exercised by ordinances general in their nature and impartial in their operation.” 1 Dillon’s Mun. Corp., sec. 322. As said in Simrall v. Covington, supra: “The above views are enforced in the cases of Mayor of Mobile v. Yuille, 3 Ala., 137; Robinson v. Mayor of Franklin, 1 Hump., 156; Anderson v. City of Wellington, 40 Kansas, 173, and many other cases that might be cited. All recognize the rule, which is fundamental, that the by-laws of a municipality, whether they purport to regulate callings or otherwise, must, as indeed must every • law, preserve equálity of right. Those exercising the same privilege must be treated alike. The door must be closed to none by discrimination, if we would avoid monopoly and wrong. This principle is as necessary to sound legislation as the circulation of the blood is to the human system, or the flow of tide-water to the ocean. It has produced a line of decisions which are universally regarded as sound by the courts of the country. Thus, in Ex parte Frank, 52 Cal., 606, an ordinance of a city, passed under a general charter power, exacting a license for selling goods, and fixing one rate for selling goods at the time within the city and another and much larger for those without, was held invalid, as unjust, partial, and oppressive. In Mayor, etc., of Nashville v. Althrop, 45 Tenn., 554, an ordinance discriminating between merchants and other dealers residing within and *615those without the limits of the city, and prescribing a special rate of taxation for the latter, was declared to be beyond the limit of constitutional legislation. In this State we have no constitutional provision as to taxation eo nomine, but it is the settled constitutional rule, declared by oft-repeated decisions of this Court, that every tax must be certain, universal, and, so far as practicable, equal and uniform. Burdens cannot constitutionally be imposed upon particular individuals, while others of the same class or locality who have rendered no public service are exempt.”

The case of Simrall v. Covington, supra, is directly in point, as will appear from this extract: “The ordinance now in question not only discriminates between residents of the city of Covington and those residing outside of it, whether within or without the State, but it places a burden upon some within the city, while others of its residents engaged in a like business are exempt. It is, therefore, unreasonable, partial legislation. To be reasonable, a municipal by-law should be equal in its operation. Tugman v. Chicago, 78 Ill., 405; Barling v. West, 29 Wis., 307. This one being clearly an infringement of individual right, partial and unreasonable in its character, cannot be sustained.” This doctrine appears to have been adopted by practically all the courts and is clearly founded in reason and justice.

Some courts hold that such an ordinance is invalid because it authorizes the taking of one citizen’s property for the benefit of the public, and, worse still, for private use or advantage, without just compensation. St. Charles v. Nolle, 51 Mo., 122. But a sufficient reason, under our Constitution, is that the discrimination in favor of the resident of the town and against the nonresident violates the rule of uniformity. It has been held that such distinctions between the inhabitants of the State, based upon no other ground than the place of actual residence, are in restraint of trade, invidious, unjust, and illegal. Muhlenbrinck v. Long Branch, 13 Vroom, 364.

Ordinances passed in the exercise of the police power or for the purpose of revenue, and intended to regulate or control the sale of articles in a town or city, or in other matters, must, of course, be reasonable, and it belongs to the courts to determine *616what are reasonable regulations within the power granted by charter. Kip v. Paterson, 2 Dutcher, 298; Morgan v. Orange, 50 N. J., 389. In the case last cited, it was held that an ordinance imposing a larger license fee on a nonresident than on a resident was illegal, as being discriminating and, therefore, unreasonable. Other decisions to be examined, and which seem to be directly in point, are: Atlanta v. Jacobs, 125 Ga., 523; Ex parte Frank, 52 Cal., 606; Saginaw v. Circuit Judge, 106 Mich., 32; Clements v. Casper, 4 Wyo., 494; Pacific Junction v. Dyer, 64 Iowa, 38; Shamokin v. Flannigan, 156 Pa. St., 43; Indianapolis v. Bieler, 138 Ind., 30; Grafty v. Rushville, 107 Ind., 502; Fecheimer v. Louisville, 84 Ky., 306. “The corporation is not endowed with power to pass ordinances in restraint of trade. Kipp v. Paterson, supra; Dunham v. Rochester, 5 Cow., 462. The control it may exercise over business and trade is such only as belongs to the necessities and demands of local government, such as have relation to the general prosperity of the citizen, the public health, order and morals of the community. It cannot, outside of these considerations, enter into the arena of business competition, to advance a favored class and retard others. All citizens in pursuit of legitimate, honest occupations, stand equal before the law, and a police power entrusted to a corporation is unreasonably exercised in making invidious distinctions between citizens endowed with equal rights. It is incompetent for this board of commissioners, entrusted as it is with the rule in local municipal affairs, to erect walls of exclusion against citizens without its limits, or obstruct free commerce and trade between them and its own inhabitants.” Muhlenbrinck v. Commissioners, 42 N. J. L., 364.

It seems to us that the ordinance in question is aimed at nonresidents,- and there is room for the reasonable suspicion that it was designed principally for the benefit of residents in erecting a barrier against the introduction of foreign trade, for their protection. It is, therefore, open to the just criticism that it is discriminative, in restraint of trade, and not authorized by the terms of the Constitution, which were intended to secure equality in such matters. Saginaw v. Circuit Judge, supra. “Municipalities are not in any sense close corporations. They *617are not vested witb rights of local legislation in order that they may arrogate to their own inhabitants additional rights and privileges to those enjoyed by other citizens of the State ox Nation. Neither may rights be denied to its citizens and still allowed to be exercised by nonresidents who may come within the corporate limits. Discrimination against residents is equally odious as discrimination in their favor.” Horr and Bemis on Mun. Police Ordinances, see. 137.

"We conclude, therefore, that the ordinance of Morehead City, under which the defendant was charged criminally before the justice, is invalid, in that “it spends its whole force on nonresidents and spares residents entirely.” The Superior Courtjprop-erly directed that a verdict of not guilty be entered upon the findings of the jury. The defendant was entitled to his discharge.

No error.