State v. . Fink

Hoke, J. In the recent case of S. v. Prevo, 178 N. C., 740, it was held that, in order to a conviction, on a charge of this general character, it was necessary to show a violation of a lawful ordinance, and further, that a town or city ordinance in contravention of a valid. State statute on the subject is void. Considering the record in view of these principles, it appears that sec. 6 of Laws 1917, ch. 140, entitled an act to regulate the use of automobiles, a license or registration fee is established for the use of motor vehicles, rated according to specified horse-power, and containing the proviso that “no county, city, or town may require a total registration fee in an amount greater than one-half the fee required by the State.” This regulation is repealed in ch. 189, Laws 1919, and sec. 5 of the later act provides, in part, as follows: “That section six of chapter one hundred and forty of the Public Laws of one thousand nine hundred and seventeen be stricken out, and the following inserted in lieu thereof: 'That a license or registration fee shall be charged and collected annually on motor vehicles registered under the provisions of this act, on each motor vehicle, except motor trucks, motor vehicles for the carriage- *715 of passengers for hire, and motorcycles, as follows: On each, motor vehicle having a rating of twenty-six horsepower or less, a registration license fee of ten dollars; on each motor vehicle having a rating of more than twenty-six horsepower, but not more than thirty horsepower, a registration or license fee of fifteen dollars; on each motor vehicle having a rating of more than thirty horsepower a registration or license fee of twenty dollars; that each motor vehicle used for the carriage of passengers for hire shall carry a special “service” license to be furnished by the Secretary of State, for which the license fee shall be twice the amount fixed for like motor vehicles for private use.’ ” After making definite regulations for a tax on motorcycles and motor trucks the section contains the proviso: “That no county, city, or town shall charge any license fee on motor vehicles in excess of one dollar per annum.” It will thus be noted that, in the substituted section, the tax is rated according to power, and further, motor vehicles are in part classified into those operated for private use and those for the carriage of passengers for hire, the latter being charged twice the amount of the former, and to have issued them a service license “by the Secretary of State,” and with the proviso, as stated, “that no county, city, or town shall charge any license fee greater than one dollar.” This later section, containing the rule which now prevails on the subject, is taken from ch. 189, Laws 1919, entitled, “An act to provide for the construction and maintenance of a system of highways in the State, and to enable the State to secure the benefits of Federal aid therefor, and for other purposes.” The object of the law as indicated being to create a State Highway fund by placing on the operating of motor vehicles a tax as large as it would reasonably bear; thus affording to the State a substantial sum for the extensive highway improvements contemplated by the act, and to meet and secure the aid of the Federal Government proffered on condition that a sufficient response be made by the State authorities. And it is the evident meaning and purpose of the statute that the great bulk of the tax to be raised from this source shall go to the “State Highway fund,” the local tax of $1, which may be imposed by counties, cities, and towns, being allowed, no doubt, to meet the expense and to secure the benefits of local supervision, as to the personnel and methods of local operators, and probably also to establish something like uniformity of local rates, to be imposed upon this important and growing business. It is insisted for the State that the'license fee, provided for in the public law, is one of ownership merely, and in no way affects the provision in the charter of the city of Ooncord, Private Laws.1907, ch. 344, empowering its authorities to “regulate, control, tax, and license all franchises, privileges, business, trades, professions, callings, occupations, *716 etc., by imposing a franchise license or privilege tax upon each and every of the aforementioned subjects,” etc. But, in our view, the tax imposed in the general law is a license tax for the privilege of operating motor vehicles: 1. For private use. 2. For carrying passengers for hire, and is one and the same kind of tax formerly authorized under the city charter that is a franchise, license, or privilege tax. It is stated in the ordinance that the tax of $20 is imposed for privilege of operating an automobile for hire, and this being true, the force and effect of the State law, regulating the use and operating of automobiles for hire, is to withdraw motor vehicles for hire from the power to tax this occupation, as conferred generally in the charter, and limits the power for this purpose to a tax of $1, as the later State statute clearly and in express terms provides. These statutes appertaining to the same subject are to be construed together, Keith v. Lockhart, 171 N. C., 451, and, by correct interpretation, the particular intent expressed in the later State statute will control the power conferred generally in the charter and constituting the business of operating motor vehicles for hire an exception, with the tax thereon restricted to one dollar. Rankin v. Gaston County, 173 N. C., 683; Bramham v. Durham, 171 N. C., 196; School Comrs. v. Aldermen, 158 N. C., 191-198. In the School Comrs. case, supra, the principle is stated as follows: “When a general intent is expressed in a statute, and the act also expresses a particular intent incompatible with the former, the particular intent is to be considered in the nature of an exception,” citing 1 Lewis Sutherland as State Construction (2 ed.), sec. 268; Rodgers v. U. S., 185 U. S., 83; Stockett v. Byrd, 18 Md., 484; Dahuke v. Roper, 168 Ill., 102, and authoritative cases on the subject elsewhere are to the same general effect. Barrett v. New York, 189 Fed., 268; Buffalo v. Lewis, 192 N. Y., 193; Newport v. Merkel Bros. (Ky.), 161 S. W., 549; Helena v. Dunlap, 102 Arkansas, 131. The city authorities, therefore, being without power to impose a license tax on this business greater than $1, the ordinance by which they undertake to collect a tax of $20, contrary to the provisions of the general law, must be declared void, and the prosecution predicated upon it necessarily fails. S. v. Prevo, 178 N. C., 740, citing S. v. Webber, 107 N. C., 962. There is error, and this will be certified that, on the facts found, a verdict of not guilty be entered, and defendant be discharged. Reversed.