Cooke v. Futrell

246 S.E.2d 65 (1978)

37 N.C. App. 441

Manning P. COOKE v. Frances W. FUTRELL, Individually and as Clerk of the Town of Rich Square and the Town of Rich Square, Inc.

No. 776DC775.

Court of Appeals of North Carolina.

August 1, 1978.

*66 Boyce, Mitchell, Burns & Smith by G. Eugene Boyce and James M. Day, Raleigh, for plaintiff-appellant.

Cherry, Cherry & Fly the by Charles Slade, Jr., Rich Square, for defendant-appellee.

CLARK, Judge.

Plaintiff argues that the court erred in finding that his payment of the municipal license tax was delinquent because the statutory provisions granting the municipality the power to assess penalty payments make clear that delinquency in paying a municipal license tax can occur only after a reasonable time has elapsed since the vehicle was licensed with the State. Plaintiff contends that his car was not licensed with the State of North Carolina until the day after he was forced to pay the delinquency penalty and that he could not be delinquent because the municipal tax was not yet legally due. The defendants concede that if plaintiff's car was not licensed by 17 February 1977, the assessment of the penalty was unlawful. Thus, although the parties at hearing agreed that there was no factual dispute, that the issue was one of statutory construction and application, it is clear that what is really the threshold issue is a factual onewhen was plaintiff's car licensed by the State of North Carolina? The court found as fact that plaintiff's car was licensed on 17 February 1977 but the only evidence in the record on appeal on this point was plaintiff's testimony that he bought a State license on 18 February 1977. There is no evidence as to whether this was a new license or a delinquent renewal. There is testimony that plaintiff was not assessed a late payment penalty by the State. Defendants concede that the court erred in its finding as there was no evidence to support it.

G.S. 160A-206 grants general power to cities to impose taxes as follows:

"A city shall have power to impose taxes only as specifically authorized by act of the General Assembly. Except when the statute authorizing a tax provides for penalties and interest, the power to impose a tax shall include the power to impose . . . penalties or interest for failure to pay taxes lawfully due within the time prescribed by law or ordinance.. . .

G.S. 20-97 authorizes cities and towns to levy not more than one dollar ($1.00) per year upon the use of any such vehicle "licensed by the State of North Carolina. . . ." (Emphasis added.) On 8 January 1948 the Town of Rich Square passed a resolution that "all motor vehicle owners shall purchase an exhibit on motor vehicles town license tags at $1.00 each, not later than February 15th. After that date, a penalty of $1.00 will be imposed, and if after notified, any motorist fails to purchase said tag they shall be cited to court and shall purchase tag, pay penalty and *67 court costs." The statutory pattern thus gives a municipality power to tax and impose a penalty for late payment upon a motor vehicle licensed by the State of North Carolina. Since a municipality can tax only as specifically authorized, the Town Resolution above quoted clearly can affect only vehicles licensed by the State. The Resolution is broad on its face, but is not unconstitutional when construed as part of the statutory pattern. We define "motor vehicles," subject both to the municipal tax and to the late penalty, to be motor vehicles licensed by the State of North Carolina. We are mandated to construe any legislative enactment so as to save its constitutionality, if possible, State v. Fulcher, 34 N.C.App. 233, 237 S.E.2d 909 (1977), aff'd, 294 N.C. 503, 243 S.E.2d 338 (1978), and to avoid a strict interpretation that will result in an absurd and unconstitutional result. Hobbs v. Moore County, 267 N.C. 665, 149 S.E.2d 1 (1966). So construed, the Town Resolution clearly requires a determination that the motor vehicle being registered after 15 February is licensed with the State before assessment of the late payment penalty.

There being no evidence to support the finding of the trial court that the motor vehicle was licensed by the State on 17 February 1977, the judgment is reversed and this cause remanded for proceedings consistent with this opinion.

Reversed and Remanded.

BROCK, C. J., and WEBB, J., concur.