Richmond Food Stores, Inc. v. Jones

206 S.E.2d 346 (1974)

22 N.C. App. 272

RICHMOND FOOD STORES, INC. v. G. A. JONES, Jr., Commissioner of Revenue of the State of North Carolina.

No. 7410SC391.

Court of Appeals of North Carolina.

July 3, 1974.

*347 Blanchard, Tucker, Denson & Cline by Charles F. Blanchard and Charles A. Parlato, Raleigh, for plaintiff appellee.

Atty. Gen. Robert Morgan by George W. Boylan, Asst. Atty. Gen., Raleigh, for defendant appellant.

VAUGHN, Judge.

We limit our consideration to the Federal constitutional question decided at trial.

In Section 3 of Chapter 1075 of the Session Laws of 1969, the General Assembly enacted the "Soft Drink Tax Act." The Act was ratified on 27 June 1969. G.S. § 105-113.45, a part of that Act, among other things, levies a soft drink excise tax at the rate of one cent on each bottled drink. G. S. § 105-113.51, also part of the Act, requires that the payment of the tax be evidenced by the affixing of tax paid stamps or crowns to each container.

On 2 July 1969, the General Assembly ratified Senate Bill 886 (Chapter 1251 of the Session Laws of 1969) entitled "An Act To Provide An Alternate Method Of Remitting Taxes Upon Bottled Soft Drinks And To Provide For Payment Of Such Taxes With Respect to October 1, 1969 Inventory." That Act is codified as G.S. § 105-113.56A which we have, in pertinent part, set out in the statement of facts. In summary, the results of this Act are as follows:

(1) Resident distributors remit the taxes due monthly whereas nonresident distributors must physically attach a tax paid *348 crown or stamp to each container. It is clear that the method of payment required of nonresident distributors is considerably more expensive and burdensome than the method allowed residents. We see no distinction in the relative status, position or class of plaintiff from resident distributors that can justify the difference in the method of paying the tax.

(2) Resident distributors pay a tax at the rate of one-half cent for each bottle on the first two million one hundred and sixty thousand bottles sold annually. Plaintiff, a nonresident distributor, must pay twice as much tax, one cent on each bottle, on the same volume. This rate differential is clearly arbitrary and discriminatory.

We do not reach the question of whether, under proper attack, G.S. § 105-113.56A could fail in its entirety as an unconstitutional exemption from the Soft Drink Tax Act in favor of a special class, resident distributors.

We hold that G.S. § 105-113.56A, as written and applied to this plaintiff, violates Article I, Section 8 of the Constitution of the United States. The express provision in G.S. § 105-113.56A that the Act applies to any "resident" distributor or wholesale dealer and to any distributor or wholesale dealer "having a commercial domicile in this State" constitutes an implicit provision that it shall not apply to any "nonresident" distributor or wholesale dealer or to any distributor or wholesale dealer "not having a commercial domicile in this State." The implied exclusion of nonresident distributors from the Act has the same effect as if it were boldly stated in express terms and is equally noxious to the Constitution of the United States. It is void.

The judgment from which defendant appealed is affirmed.

Affirmed.

PARKER and CARSON, JJ., concur.