Lenoir Drug Co. v. Town of Lenoir

AlleN, J. It is true, as contended by the plaintiff, that the defendant derives its power to tax from legislative authority, and if it has not been conferred, it does not exist. S. v. Bean, 91 N. C., 554; Winston v. Taylor, 99 N. C., 211. We must look, then, to the charter of the defendant (chapter 37, Private Laws 1909), and we find there that certain powers as to taxation are specifically enumerated in section 8, and it is further provided, in section 1, that the defendant, “in addition to the powers and privileges hereafter specially conferred, shall have all the power incident and usual to corporations of like character under the general laws of the State.” Chapter 73 of the Kevisal is devoted to “Cities and Towns,” and section 2924 confers the power on them to “annually levy a tax on all trades, professions, and franchises carried on or enjoyed within the city, unless otherwise provided by law,” and the word “trade,” as used in acts to raise revenue, is defined to be “any employment or business embarked in for gain or profit.” S. v. Worth, 116 N. C., 1010. We are, therefore, of opinion that as the business of the plaintiffs is embraced in the term “trades,” and as the general law, which is substantially incorporated in the charter of the defendant, confers the power to lay an annual tax on “trades,” that the plaintiffs are not entitled to recover. The action might also have been dismissed for want of jurisdiction, as it was brought in the Superior Court and the sum demanded is $5. *574 The section of the Revisal which permits the submission of a controversy without action (section 803) says it may be submitted “to any court which would have jurisdiction if an action had been brought.” Affirmed. •