Opinion
(August Term, 1847.)
1. The commissioners of an incorporated town have no right to impose any taxes but such as are expressly authorized by the act of incorporation.
2. A power to enact by-laws, etc., for the good government of the town, of itself, confers no right to levy taxes.
APPEAL from BUNCOMBE Special Term in June, 1846; Battle, J.
This was an action commenced by a warrant before a single magistrate to recover the sum of $25 which the board of commissioners for the town of Asheville had imposed as a tax upon the defendant as a retailer of ardent spirits. It was admitted that the defendant resided and did business, as a retailer, within the limits of the town; and the plaintiffs contended that they were authorized to impose and collect the tax sued for by virtue of Laws 1840, ch. 58, entitled "An act to incorporate the town of Asheville in the county of Buncombe and to appoint commissioners thereof." The defendant insisted that the act referred to did not confer the power upon the plaintiffs to impose the tax sued for, and of this opinion was the court. Upon the intimation of this opinion, the plaintiffs submitted to a judgment of nonsuit and appealed.
N.W. Woodfin and Edney for plaintiffs.
Gaither for defendant.
The judge was of opinion that the act of Assembly mentioned in the case did not confer the power on the commissioners to lay the tax on the defendant for the nonpayment of which he was sued. Section 3 of the act empowers the commissioners of Asheville to lay a tax annually on the property and inhabitants of the said town, not exceeding 10 cents on each hundred dollars valuation (407) of real estate in the said town and 10 cents on every taxable poll, as they shall deem necessary for the repair of the streets and for the good of said corporation. It seems that the Legislature has expressly conferred on the commissioners the power of taxing but two objects, to wit, the real estate and polls within the limits of the town. The Legislature, designating two objects of taxation, intended, as it seems to us, to exclude from the taxing power of the commissioners everything else. It would have been very imprudent legislation to have permitted the commissioners to tax any and every thing in the town they might think fit, and that, without limit in the amount of the tax. The powers conferred on them to pass by-laws for the good government of the town does not authorize them to make by-laws to lay taxes on any other things than those expressly named by the Legislature. We think that the judgment must be
PER CURIAM. Affirmed.
Cited: S. v. Bean, 91 N.C. 558, 560; Winston v. Taylor, 99 N.C. 213; S. v. Irvin, 126 N.C. 992; Charlotte v. Brown, 165 N.C. 437.
(408)