#### STATE v. R. R. EVANS.

(Filed 22 November, 1933.)

1. Municipal Corporations H e — Ordinance held to impose tax on operator of gasoline pump and to subject him to penalty therein provided.

Where a section of a city ordinance prescribes a tax “upon every gasoline pump or tank located upon any sidewalk,” and another section of the ordinance prescribes a penalty for its violation, the tax is required of the operator or owner of such pumps, and is not merely a charge against the pumps themselves, and failure to pay the tax prescribed subjects the owner or operator of such pumps to the penalty.

2. Criminal Law 11c—

Where the jury returns a special verdict on a statement of facts, assented to by defendant, there is no reason to demand a general verdict on the same aspect of the case.

3. Municipal Corporations K a — Revenue Act held not to prohibit city from levying tax on gasoline pumps in nature of police permit.

The provision of the Revenue Act, Public Laws of 1931, chap. 427, sec. 153, prescribing that no county, city or town should levy a license tax on the business of selling gasoline at retail in excess of one-fourth of the State license tax does not preclude a city from levying a tax on operators of gasoline pumps located on sidewalks along certain streets between the curb and the property line when such city tax is levied in the nature of a permit in the exercise of regulatory police power.

*435Appeal by defendant from Oranmer, J., at March Term, 1933, of WaKE. No error.

Attorney-General. Brv/mmitt and Assistant Attorney-General Seawell for the State.

William B. Oliver and W. I. Rowland for defendant.

Adams, J.

Disregarding ambiguities we find from tbe record that tbe defendant was prosecuted in tbe city court on a warrant charging him with failure to pay a license tax for tbe privilege of operating gasoline pumps located on a sidewalk of tbe city of Ealeigh. Tbe defendant excepted to tbe court’s denial of bis motion to dismiss tbe action.

It is first contended that tbe ordinance applies only to persons owning tbe business or following tbe trade, occupation, or profession therein enumerated, and that section 11, subsection 3, purports to levy tbe tax, not upon a person, but upon tbe pumps, and that tbe warrant therefore sets out no offense. By tbe terms of subsection 3 a tax of $15.00 is laid “upon every gasoline pump or tank located upon any sidewalk.” and according to section 2 any person committing a breach of tbe ordinance shall be subject to a penalty of $50.00 or imprisonment for 30 days, or both, in tbe discretion of tbe court.

Tbe gravamen of tbe offense for which tbe defendant was prosecuted is tbe operation of tbe pumps without a license, and tbe tax imposed was manifestly required of tbe owner or operator of tbe pumps and was not intended to be a charge upon tbe pumps themselves. Tbe authority of tbe city to enact ordinances of this character is not in controversy.

Tbe jury returned a special verdict upon a statement of facts to which tbe defendant assented and by which tbe location of tbe pumps was determined. There was, therefore, no reason for demanding a general verdict on this question.

We now advert to tbe defendant’s principal contention. Tbe Eevenue Act provides that every person, firm, or corporation engaged in tbe business of . . . retail selling or delivering of any motor fuels or lubricants . . . shall apply for and obtain from tbe Commissioner of Eevenue a State license for tbe privilege of engaging in such business in this State and shall pay for such license an annual tax of $50.00 in cities having a population of 30,000 or more, and that counties, cities, and towns may levy a license tax on each place of business located therein not in excess of one-fourth of that levied by tbe State. Public Laws, 1931, chap. 427, sec. 153. For tbe operation of a service station in tbe city of Ealeigh tbe defendant paid $12.50, which is one-fourth of tbe State tax, and be takes tbe position that as against him tbe tax of $15.00 imposed by virtue of subsection 3 is not enforceable. His *436position in this respect cannot be maintained. Tbe tax authorized by section 153 of tbe Revenue Act is imposed upon a business enterprise; that wbicb is imposed by subsection 3 is in tbe nature of a permit granted as a police regulation for tbe operation of gasoline pumps located on Fayetteville Street “between tbe curb-line of tbe street and tbe property line.” Tbe tax upon tbe business referred to is prescribed by tbe State; tbe permit is issued by tbe city in tbe exercise of its power of regulation. Municipal ordinances involving tbe exercise of this power in various phases have frequently been sustained. As tbe power is not denied tbe citation of authorities on this point is not necessary.

No error.