HIGGINS, Justice.
At the outset, a question arises whether the sales and use tax imposed under the authority of Chapter 1228 is a state or county levy. The question is one of law to be determined by the operative provisions of the Act. “A local tax is defined as ‘one laid upon property in the locality, by the governing body thereof for an amount fixed by it, and for local governmental uses declared by it’. ... A ‘state tax’ is one imposed by the state, but ... is none the less a state tax because the legislature uses the municipal taxing machinery in the various political subdivisions of the state for its assessment and collection.” Cooley, Taxation, Vol. 1, 4th Ed., Sec. 54, p. 145.
The defendants argue here that by Chapter 1228, the General Assembly extended to each of the counties the opportunity to vote on the proposed tax in the same manner as Chapter 1096 authorized Mecklenburg County to vote on the identical tax; that the tax is local — for the benefit of each county that approves it in the election. They further argue the Court should approve this tax as the Court approved the Mecklenburg tax in Sykes v. Clayton, 274 N.C. 398, 163 S.E. 2d 775. There seem to be differences which require careful analysis before accepting Sykes as authoritative in the instant case. The Mecklenburg act authorized a county election if called for by “written request” of the Mecklenburg Board of Commissioners or “on petition of fifteen per cent (15%) of the qualified voters.” Decision whether there shall be an election is left entirely to the Mecklen-burg authorities or the voters. The prospective taxpayers, therefore, have opportunity to appear before the Board of Commis[565]*565sioners or among the voters and be heard as to whether the proposed tax is wise or otherwise, should or should not be levied. The Mecklenburg act provides: . . (S)aid county may by special election adopt and levy a one per cent (1%) sales and use tax.” (Emphasis added.) There seems to be no doubt that when so adopted and levied, the tax is a county tax levied by the county under the permissive authority granted by the General Assembly.
A careful reading of the opinion of Justice Bobbitt upholding the tax (Sykes v. Clayton, supra) discloses this Court’s grave concern whether the Mecklenburg tax could withstand a frontal assault on all constitutional grounds. “It is noted the plaintiff (Sykes) alleged generally that enforcement of the 1967 Act would violate his constitutional rights under Article I, Section 17 of the Constitution of North Carolina, and under the Fourteenth Amendment to the Constitution of the United States'. However, his complaint does not set forth any specific contention with reference thereto. On appeal, ‘no reason or argument is stated or authority cited’ in his brief with reference to these constitutional provisions. Hence, whatever contention plaintiff may have had in mind is taken as abandoned.”
Sykes argued only that his rights under Sections S and 5, Article V, were violated. The Court held Article V, Sections 3 and 5 inapplicable under the facts of the case. “On this appeal, in passing on the only question presented, we hold the 1967 Act is not void as violative of Sections 3 and 5 of Article V of our Constitution. Whether the 1967 Act, or any portion thereof, is vulnerable to attack as violative of other constitutional limitations is not presented.” The Court was careful to say the decision in Sykes was limited to the holding that the taxpayer’s constitutional rights under Article V, Sections 3 and 5 were not violated for the reasons which he assigned.
Specifically, the plaintiff (taxpayer) in the instant case charges that the tax which it was required to pay (and did pay under protest) deprived it of its property without due process of law, in violation of Article I, Section 17, State Constitution. It further contends the tax is unlawful, unconstitutional and discriminatory in that it was required to pay the tax, not only in its own county, but in every non-taxing county in which it did business, and that dealers in a non-taxing county were exempt from payment of the tax in all counties.
[566]*566The Mecklenburg act permitted its governmental authorities to call for the election, and if approved, to levy the tax. Chapter 1228 forces every county to hold an election and to be eternally bound by the result if favorable to the tax, but subject to repeated elections if the vote was against the tax. Even that result is subject to the further exception that Edgecombe and Nash counties must vote as a unit, and both counties must approve the tax before it may be levied in either county. Neither county could decide the issue by voting for the tax if the other opposed.
The Mecklenburg act exempts a taxpayer in that county from the imposition of the tax if he delivers to the purchaser at a point outside Mecklenburg County. Chapter 1228 requires the taxpayer, in a taxing county, in all instances, to pay the tax, even though deliveries may be made to all points in the State. The above is subject to this exception: Section 2 of Chapter 1228 provided that a dealer in a taxing county is exempt from payment of the tax on building materials delivered to purchasers in non-taxing counties if (and only if) the contract of sale or a bid, which by acceptance became a contract, was executed prior to the effective date of the tax in his county. All other deliveries made after the effective date of the tax are taxable.
Of course, before holding an act of the co-ordinating branch of the government unconstitutional, the unconstitutionality must clearly appear. Unless it does so appear, the act should not be invalidated as unconstitutional. With this in view, we have searched for some valid way to sustain the constitutionality of Chapter 1228, Session Laws of 1969. We are forced to conclude the Act is not one merely permitting counties, at their election, to determine whether the tax should be imposed. The Act compels each county to take its stand at a compulsory election. This provision denies to the proposed taxpayer the right to be heard by his Board of Commissioners on the question whether local conditions require the imposition of the tax, or whether other means of taxation available to the county would be more equitable, even if the necessity for additional revenue is made to appear. The conclusion seems inescapable that the State of North Carolina (not the several counties) has set up the taxing scheme. Nothing is left to the discretion of the county but to apportion the tax money received from the State Commissioner of Revenue, and to apportion it between the county and its municipalities according to the formula fixed in the Act.
[567]*567At the time of its passage, the General Assembly had misgivings about the constitutionality of the Act, and provided by Section 3:
“If any provisions of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application. . . .”
The Constitution does not permit a state to levy a tax which discriminates in favor of or against taxpayers in the same classification. The prohibition extends throughout the State. Hence, the State cannot levy a tax in 25 counties and exempt 75 counties. Nor can the State set up a valid scheme by which that precise result is accomplished.
Free access — add to your briefcase to read the full text and ask questions with AI
HIGGINS, Justice.
At the outset, a question arises whether the sales and use tax imposed under the authority of Chapter 1228 is a state or county levy. The question is one of law to be determined by the operative provisions of the Act. “A local tax is defined as ‘one laid upon property in the locality, by the governing body thereof for an amount fixed by it, and for local governmental uses declared by it’. ... A ‘state tax’ is one imposed by the state, but ... is none the less a state tax because the legislature uses the municipal taxing machinery in the various political subdivisions of the state for its assessment and collection.” Cooley, Taxation, Vol. 1, 4th Ed., Sec. 54, p. 145.
The defendants argue here that by Chapter 1228, the General Assembly extended to each of the counties the opportunity to vote on the proposed tax in the same manner as Chapter 1096 authorized Mecklenburg County to vote on the identical tax; that the tax is local — for the benefit of each county that approves it in the election. They further argue the Court should approve this tax as the Court approved the Mecklenburg tax in Sykes v. Clayton, 274 N.C. 398, 163 S.E. 2d 775. There seem to be differences which require careful analysis before accepting Sykes as authoritative in the instant case. The Mecklenburg act authorized a county election if called for by “written request” of the Mecklenburg Board of Commissioners or “on petition of fifteen per cent (15%) of the qualified voters.” Decision whether there shall be an election is left entirely to the Mecklen-burg authorities or the voters. The prospective taxpayers, therefore, have opportunity to appear before the Board of Commis[565]*565sioners or among the voters and be heard as to whether the proposed tax is wise or otherwise, should or should not be levied. The Mecklenburg act provides: . . (S)aid county may by special election adopt and levy a one per cent (1%) sales and use tax.” (Emphasis added.) There seems to be no doubt that when so adopted and levied, the tax is a county tax levied by the county under the permissive authority granted by the General Assembly.
A careful reading of the opinion of Justice Bobbitt upholding the tax (Sykes v. Clayton, supra) discloses this Court’s grave concern whether the Mecklenburg tax could withstand a frontal assault on all constitutional grounds. “It is noted the plaintiff (Sykes) alleged generally that enforcement of the 1967 Act would violate his constitutional rights under Article I, Section 17 of the Constitution of North Carolina, and under the Fourteenth Amendment to the Constitution of the United States'. However, his complaint does not set forth any specific contention with reference thereto. On appeal, ‘no reason or argument is stated or authority cited’ in his brief with reference to these constitutional provisions. Hence, whatever contention plaintiff may have had in mind is taken as abandoned.”
Sykes argued only that his rights under Sections S and 5, Article V, were violated. The Court held Article V, Sections 3 and 5 inapplicable under the facts of the case. “On this appeal, in passing on the only question presented, we hold the 1967 Act is not void as violative of Sections 3 and 5 of Article V of our Constitution. Whether the 1967 Act, or any portion thereof, is vulnerable to attack as violative of other constitutional limitations is not presented.” The Court was careful to say the decision in Sykes was limited to the holding that the taxpayer’s constitutional rights under Article V, Sections 3 and 5 were not violated for the reasons which he assigned.
Specifically, the plaintiff (taxpayer) in the instant case charges that the tax which it was required to pay (and did pay under protest) deprived it of its property without due process of law, in violation of Article I, Section 17, State Constitution. It further contends the tax is unlawful, unconstitutional and discriminatory in that it was required to pay the tax, not only in its own county, but in every non-taxing county in which it did business, and that dealers in a non-taxing county were exempt from payment of the tax in all counties.
[566]*566The Mecklenburg act permitted its governmental authorities to call for the election, and if approved, to levy the tax. Chapter 1228 forces every county to hold an election and to be eternally bound by the result if favorable to the tax, but subject to repeated elections if the vote was against the tax. Even that result is subject to the further exception that Edgecombe and Nash counties must vote as a unit, and both counties must approve the tax before it may be levied in either county. Neither county could decide the issue by voting for the tax if the other opposed.
The Mecklenburg act exempts a taxpayer in that county from the imposition of the tax if he delivers to the purchaser at a point outside Mecklenburg County. Chapter 1228 requires the taxpayer, in a taxing county, in all instances, to pay the tax, even though deliveries may be made to all points in the State. The above is subject to this exception: Section 2 of Chapter 1228 provided that a dealer in a taxing county is exempt from payment of the tax on building materials delivered to purchasers in non-taxing counties if (and only if) the contract of sale or a bid, which by acceptance became a contract, was executed prior to the effective date of the tax in his county. All other deliveries made after the effective date of the tax are taxable.
Of course, before holding an act of the co-ordinating branch of the government unconstitutional, the unconstitutionality must clearly appear. Unless it does so appear, the act should not be invalidated as unconstitutional. With this in view, we have searched for some valid way to sustain the constitutionality of Chapter 1228, Session Laws of 1969. We are forced to conclude the Act is not one merely permitting counties, at their election, to determine whether the tax should be imposed. The Act compels each county to take its stand at a compulsory election. This provision denies to the proposed taxpayer the right to be heard by his Board of Commissioners on the question whether local conditions require the imposition of the tax, or whether other means of taxation available to the county would be more equitable, even if the necessity for additional revenue is made to appear. The conclusion seems inescapable that the State of North Carolina (not the several counties) has set up the taxing scheme. Nothing is left to the discretion of the county but to apportion the tax money received from the State Commissioner of Revenue, and to apportion it between the county and its municipalities according to the formula fixed in the Act.
[567]*567At the time of its passage, the General Assembly had misgivings about the constitutionality of the Act, and provided by Section 3:
“If any provisions of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application. . . .”
The Constitution does not permit a state to levy a tax which discriminates in favor of or against taxpayers in the same classification. The prohibition extends throughout the State. Hence, the State cannot levy a tax in 25 counties and exempt 75 counties. Nor can the State set up a valid scheme by which that precise result is accomplished. The State cannot tax a dealer in Buncombe County and exempt his counterpart on the other side of an imaginary line which separates Buncombe from McDowell.
The authorities controlling on the question whether the challenged Act is constitutional are here cited:
“It has been declared by this Court that the power to classify subjects of taxation carries with it the discretion to select them, and that a wide latitude is accorded taxing authorities, particularly in respect of occupation taxes, under the power conferred by Art. V, Sec. 3 of the Constitution.” Bottling Co. v. Shaw, 232 N.C. 307, 59 S.E. 2d 819.
“Literally the requirement of uniformity is confined to taxes on property, but repeated judicial interpretations extend this requirement to license, franchise, and other forms of taxation.
=i= * *
“ . . . (T)he language used restricts uniformity to taxes on property, but an unbroken line of decisions has construed the rule of uniformity required by the Constitution to apply equally to the taxes authorized by the last quoted sentence.” (Citing Kenny Co. v. Brevard, 217 N.C. 269, 7 S.E. 2d 542; and many cases cited therein.) Assurance Co. v. Gold, 249 N.C. 461, 106 S.E. 2d 875.
“All taxes on property in this State for the purpose of raising revenue are imposed under the rule of uniformity. In express terms the Constitution requires that laws shall [568]*568be passed taxing1 real and personal property ... by a uniform rule. Article V, Section 3. The same section provides that the General Assembly may tax trades and professions and while this clause does1 not expressly apply the rule of uniformity to taxes imposed on trades and professions it has been judicially determined that the rule applies to these taxes as well as to taxes on property.” (Citing numerous cases) Roach v. Durham, 204 N.C. 587, 169 S.E. 149.
“Equality within the class or for those of like station and condition is all that is required to meet the test of constitutionality. ... ‘A tax on trades, etc., must be considered uniform when it is equal upon all persons belonging to the prescribed class upon which it is imposed.’ ” Leonard v. Maxwell, 216 N.C. 89, 3 S.E. 2d 316.
“. . . License taxes must bear equally and uniformly upon all persons engaged in the same class of business or occupation or exercising the same privileges.” Kenny Co. v. Brevard, supra.
“It may also be noted that the requirements of ‘uniformity,’ ‘equal protection,’ and ‘due process,’ are, for all practical purposes, the same under both the State and Federal Constitutions.” Leonard v. Maxwell, supra.
“The Constitution (Art. V, sec. 3) says that the Legislature shall tax by a uniform rule all moneys, etc., and all property according to its value in money, and that it may also tax trades, etc. Although it is not expressly provided that the tax on trades, etc., shall be uniform, yet a tax not uniform, as properly understood, would .be so inconsistent with natural justice, and with the intent which is apparent in the section of the Constitution above cited, that it may be admitted that the collection of such a tax would be restricted as unconstitutional.” Gatlin v. Tarboro, 78 N.C. 119.
“Uniformity, in its legal and proper sense, is inseparably incident to the exercise of the power of taxation, but is it absent from the impeached ordinance? It is defined by Mr. Justice Miller, in the Railroad Tax Cases, 92 U.S., 575, and the definition accepted as correct by this Court in Puitt v. Comrs., 94 N.C. 709, to consist in putting the same tax upon all of the same class — that is, while the same tax must be enforced upon all innkeepers, upon railroads, and so throughout, a tax discriminating persons of the same class, [569]*569whereby some are required to pay more than others, would lack uniformity.” State v. Powell, 100 N.C. 525, 6 S.E. 424.
“With reference to locality a tax is uniform when it operates with equal force and effect in every place where the subject of it is found . . . and with reference to classification, it is uniform when it operates without distinction or discrimination upon all persons composing the described class.” Railroad v. Lacy, 187 N.C. 615, 122 S.E. 763.
“Uniformity of taxation, as provided for by state constitution, is required throughout the territorial limits of the taxing district . . . .” Cooley on Taxation, 4th Ed., p. 645.
“Taxing is required to be by a uniform rule — that is, by one and the same unvarying standard .... Uniformity in taxing implies equality in the burden of taxation, and this equality of burden cannot exist without uniformity in the mode of assessment, as well as in the rate of taxation. But this is not all. The uniformity must be co-extensive with the territory to which it applies. If a State tax, it must be uniform all over the State. If a county or city tax, it must be uniform throughout the extent of the territory to which it is applicable. . . .” Burroughs on Taxation, Section 51, p. 62.
“The principles of equality and uniformity are indispensable to taxation, whether general or local. Local taxation must be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and must be assessed upon all the property according to its just valuation.” Desty on Taxation, Yol. 2, p. 1119.
A sovereign state, as one of its inherent attributes, has the power of taxation, which must be exercised by its legislative branch. The county is not a sovereign and hence does not have the inherent power to levy taxes. A county must derive its taxing power from, the State Constitution or from the State’s legislative enactments. Article YII of the State Constitution, by Section 1, provides for the election of county commissioners. Section 2 gives the commissioners power to levy taxes. Commissioners must act as a board and by resolution. The County Board of Elections does not have taxing power.
The taxes involved in this action were levied by the General Assembly. The Board of County Commissioners did not take part or perform any function whatever in the levying or the collec-r [570]*570tion of the taxes. Neither the County Treasurer nor the County Tax Collector participated in any part of the taxing procedure. All functions incident to the collection of the tax are given to the State Commissioner of Revenue. The Act says “. . . (T)he Commissioner of Revenue shall proceed as authorized in this division to administer the tax in such county (certified as having voted for the tax); provided, however” (here follows the special arrangement that both Edgecombe and Nash Counties must vote for the tax before it is made applicable to either county). The Commissioner of Revenue is given the power to make all rules and regulations incident to the collection and distribution of the tax including the duty of determining population ratios between counties and their municipalities upon the basis of which the tax money is apportioned. He must see to it that the provisions of the act and the provisions of the North Carolina Sales and Use Tax Act, insofar as is practicable, shall be harmonized. The only authority whatever given to the Board of County Commissioners is the discretionary right to call on the County Board of Elections for another referendum if a county has voted against the tax.
When the provisions of Chapter 1228 are analyzed impartially, the conclusion seems inescapable that the State of North Carolina and not Buncombe County levied the sales and use tax involved in this action. The levy is discriminatory in that it requires the plaintiff to pay the tax involved and it exempts his competitor in a county which votes against the tax. Both Nash and Edgecombe are exempt if either votes against the tax. Uniformity is required. No provision is made for partial uniformity.
Chapter 1228 forces a state-wide referendum to be held on November 4, 1969, at which electors may vote for or against the tax. If a majority votes for the tax, collection by the State Commissioner must begin in 90 days and continue until the taxing act is repealed. If the vote is against the tax, another referendum may be called for as often as the Board of Commissioners or 15% of the voters petition for it, or until the county votes for the tax. The foregoing is subject to the exception applicable to Edgecombe and Nash counties. That exception, of course, destroys territorial uniformity. The provision that a dealer in a taxing county must pay taxes on sales and deliveries made in a non-taxing county, as well as his own, and his competitor in [571]*571a non-taxing county pays1 in neither, destroys uniformity of application.
The taxing scheme set up by Chapter 1228, viewed in its nakedness, required a state-wide tax referendum, in which the tax plan was overwhelmingly defeated. We hold the tax which the plaintiff was required to pay was illegally and unconstitutionally exacted, for the reasons herein discussed, and should be refunded.
The judgment of the Superior Court of Buncombe County, for the reasons herein assigned, is
Reversed.