#### ED COX v. WALLER D. BROWN, Treasurer of the CITY OF CONCORD.

(Filed 30 October, 1940.)

1. Municipal Corporations § 5—

A municipality is an agency created by tbe State and bas no power or authority except that granted by the General Assembly, and is subject to almost unlimited legislative control.

2. Statutes § 5a—

Where the language of a statute is clear and unambiguous, resort may not be had to anything extrinsic for the purpose of interpretation.

*3.*Municipal Corporations § 42 — Municipality may not levy license tax on use of passenger vehicle for hire.

Public Laws of 1937, chapter 407, section 61, expressly prohibits a municipality from levying a license or privilege tax in excess of $1.00 upon the use of any motor vehicle license by the State, and repeals all laws in conflict therewith, sec. 145, and this statute must be construed with and operates as an exception to, and limitation upon the general power of municipalities to levy license and privilege taxes upon businesses, trades and professions granted by charter and C. S., 2677 (Private Laws of 1907, chapter 344; Private Laws of 1925, chapter 104), and provisions of a municipal ordinance imposing a license tax upon the operation of passenger vehicles for hire in addition to the $1.00 theretofore imposed *351by it upon motor yebicles generally, is void, nor may tbe additional municipal tax be sustained upon the theory that it is a tax upon the business of operating a motor vehicle for hire rather than upon the ownership of the vehicle, since the word “business” and the word “use” as used in the statutes mean the same thing. S. *v. Finh,*179 N. C., 712, cited and applied.

Appeal by defendant from *Ervin, Special Judge,*at August Civil Term, 1940, of Cabakbus.

Affirmed.

*Facts.*Tbe plaintiff, a resident of tbe city of Concord, during tbe fiscal year beginning 1 June, 1939, and expiring 31 May, 1940, owned and operated a passenger motor vebicle for bire, being commonly known as a “taxi.” That tbe business of tbe plaintiff consisted in transporting passengers for compensation from place to place over tbe streets and bigbways witbin tbe city of Concord as well as from place to place outside tbe city of Concord. For tbe year 1939, and for tbe year 1940, tbe plaintiff’s for-bire passenger vebicle was licensed by tbe State of North Carolina as sucb and tbe State of North Carolina collected from tbe plaintiff for tbe said years of 1939 and 1940, a for-bire passenger vebicle licensed at tbe rate provided by law for sucb for-bire passenger vebicle. Tbe tax levied and collected was at tbe rate of $1.90 per hundred pounds of weight as provided in Public Laws of 1937, chapter 407, section 51 (c). On 8 June, 1939, tbe board of aldermen of tbe city of Concord passed an ordinance entitled “An Ordinance to Amend tbe Privilege Tax Ordinance of tbe City of Concord Eelating to tbe Taxing of Motor Yebicles for Hire.” On 29 June, 1939, tbe plaintiff paid to tbe city of Concord, under written protest, tbe sum of $25.00 in payment of taxi license levied under tbe ordinance adopted 11 May, 1939, and amended 8 June, 1939, for tbe year beginning 1 June, 1939, and expiring 31 May, 1940, and tbe city of Concord then issued and delivered to tbe plaintiff a tin plate bearing tbe words and figures as follows: “Concord' — Car for Hire — -Expires May 31, 1940 — 20.” Tbe said tin plate was similar to tbe ordinary motor vebicle license plate issued by tbe State of North Carolina, and that tbe plaintiff was required to attach tbe said tin plate to bis for-bire motor vehicle and to keep tbe same on bis said vebicle during tbe life of tbe license. On 26 July, 1939, tbe plaintiff made written demand upon tbe defendant, Waller I). Brown, Treasurer of tbe city of Concord, for refund of $25.00 taxi license paid on 29 June, 1939. Tbe city of Concord failed and refused to refund tbe said sum to tbe plaintiff and notified tbe plaintiff that tbe same will not be refunded by order of tbe board of aldermen of tbe city of Concord. On 29 May, 1940, this action was instituted before C. A. Eobinson, justice of tbe peace, to recover said tax, and was submitted and beard on agreed statement of facts as appears in tbe record. From tbe judgment in favor of tbe plaintiff, rendered by tbe justice of *352the peace, the defendant appealed to the Superior Court, and from a judgment in favor of plaintiff, rendered in the Superior Court, the defendant excepted, assigned error and appealed to the Supreme Court. In addition to the payment of the $25.00 license, the plaintiff also paid $1.00 license on his for-hire passenger motor vehicle; that the said tax of $1.00 was not paid under protest, its refund has not been demanded and it is not involved in this action.

*B. T. Bost, Jr., for plaintiff.*

*Harisell & Nartsell and Waller D. Brown for defendant.*

ClabKsoN, J.

The only question for us to determine on this appeal is: Has the city of Concord the authority to levy a license or privilege tax of $25.00 on each taxicab or motor vehicle for hire owned or operated by a resident within the city of Concord? *We*think not.

The defendant contends that the city of Concord has the power under the provisions of Private Laws of 1907, ch. 344, sec. 50 (d), and also under the general law, C. S., 2677, to levy the tax.

The plaintiff’s for-hire passenger vehicle was, during the year of 1939, and during the year 1940, licensed by the State of North Carolina as such. During the said years, the plaintiff paid to the State of North Carolina a license fee on his for-hire passenger vehicle at the rate of $1.90 per hundred pounds of weight.

The plaintiff contends that the city of Concord does not have the power to levy the tax in question. That power has been withdrawn from the city of Concord as well as from all other cities and towns within the State.

Public Laws of 1937, chapter 407, provides: “Sec. 61, Taxes Compensatory. (a) That all taxes levied under the provisions of this act are intended as compensatory taxes for the use and privileges of the public highways of this State, and shall be paid by the commissioner to the State Treasurer, to he credited by him to the State Highway Fund; and no county or municipality shall levy any license *or privilege tax upon the use of any motor vehicle licensed by the State of North Carolina, except that cities and towns may levy not more than one dollar*($1.00) per year upon any such vehicle resident therein.” “Section 145. Repealing Clause. *That all laws and clauses of laws in conflict with the provisions of this act or laws or clauses of laws providing otherwise for the subject matter of this act are hereby repealed.”*(Italics ours.)

The city of Concord, by and through the board of aldermen, on 8 June, 1939, passed the following ordinance: “An Ordinance: To Amend the Privilege Tax Ordinance of The City of Concord Relating To The Taxing of Motor Yehicles For Hire. The Board of Aldermen *353of tbe City of Concord do ordain: Section 1. Tbat section 9 of tbe Ordinance Levying, Assessing, Imposing and Defining tbe License and' Privilege Taxes of tbe City of Concord, for tbe year beginning June 1, 1939, and ending May 31, 1940, heretofore ordained on tbe lltb day of May, 1939, be and tbe same is hereby amended by striking out tbe words and figures ‘motor vehicles for hire: Automobiles bonded $25.00; Trucks owned or operated in tbe City, $25.00’ and by inserting in lieu thereof tbe following: ‘Motor Yebicles for hire’: ‘Every person, firm or corporation engaged in *the business of operating an automobile or automobiles for hire, commonly designated as taxi-cabs,*shall apply for and obtain from tbe Tax Collector of tbe City of Concord a city privilege license *for the purpose of engaging in such business*in tbe City of Concord, and shall pay for such privilege, for each automobile so owned or operated, a tax of $25.00. And every person, firm or corporation engaged in tbe business of operating motor trucks for hire in tbe City of Concord shall apply for and obtain a city privilege license for tbe purpose of ■engaging in such business, and shall pay for such privilege, for each truck owned or operated, a tax of $25.00.’ Section 2. Tbat this ordinance shall take effect and be in force from and after its publication.”

As authority to enact tbe above ordinance, tbe defendant introduced in evidence tbe following act relating to tbe city of Concord: “Private Laws of 1907, Chap. 344, Section 50. Tbat among tbe powers conferred on tbe board of aldermen are these: ‘(d) To regulate, control, tax and license all franchises, privileges, *businesses,*trades, professions, callings or occupations which are now or may hereafter be taxed by tbe laws, of the State of North Carolina, by imposing a franchise, license or privilege tax upon each and every of tbe aforementioned subjects in such a manner as tbe aldermen may deem proper, not to exceed $1,000.00.’ Private Laws of 1925, Chapter 104, Section 2. ‘That chapter three hundred and forty-four of tbe Private Laws of One Thousand Nine Hundred and Seven be further amended by adding after Section eighty-nine a new section to be known as ‘Section eighty-nine-a’ to read as follows: ‘Section 89a. In addition to tbe powers and privileges hereinbefore conferred, the City of Concord shall have all tbe powers incident and usual to corporations of like character under tbe general laws of tbe State; and tbe amounts of tax named above which tbe City is authorized to levy and collect shall only be a guide and shall not be binding as to tbe amount of tax tbe city may levy on each trade, profession, business or franchise but tbe amount of tax which tbe city may levy and collect on each trade, profession, *business,*or franchise shall be in tbe discretion of tbe board of aldermen.’ ”

Tbe plaintiff contends tbat tbe act above quoted does not give tbe city of Concord tbe authority it claimed. That it is prohibited under tbe *354general State statute, as follows: “And no county or municipality shall levy any license or *privilege iax •upon the use of any motor vehicle licensed by the State of North Carolina.”*And in the repealing clause, “All laws and clauses of laws in conflict ... or providing otherwise are repealed.”

In *Comrs. v. Comrs.,*186 N. C., 202 (204), it is written: “And in determining whether there is a repugnancy, it is the approved rule here and elsewhere that the intent of the Legislature must be sought primarily in the language used, and ‘where this is free from ambiguity and expresses plainly, clearly and distinctly the sense of the framers, a resort to other means of interpretation is not permitted.’ *Kearney v. Vann,*154 N. C., 311; *In re Applicants for License,*143 N. C., 1. . . . (p. 205) And from Lewis’ Sutherland on Statutory Construction (2d Ed.) sec. 267, ‘Where the intention of the Legislature is so apparent on the face of the statute that there can be no question of its meaning, there is no room for construction.’ ”

In the case of *S. v. Prevo,*178 N. C., 740 (743), it is said: “It is well understood that municipalities, in the exercise of their governmental functions, are subject to almost unlimited legislative control, except when restricted by constitutional provision. And it is uniformly held that a town ordinance in violation of a valid State statute appertaining to the question is void,” citing *Trustees v. Webb,*155 N. C., 379; *S. v. Beacham,*125 N. C., 652; *Shaw v. Kennedy,*4 N. C., 591; 19 R. C. L., 803, and cases cited.

The city of Concord is an agency, created by the State, and has no power or authority except that granted by the General Assembly. The repealing clause is clear and not ambiguous and takes away from the city of Concord the right to pass the ordinance which it attempted to pass and which is in controversy in the present case.

The question raised in this case, we think, is settled in *S. v. Fink,*179 N. C., 712 (715-16). *Ilolce, J.,*so clearly states the law that we quote fully: “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 Concord, Private Laws 1907, ch. 314, empowering its authorities to ‘regulate, control, tax, and license all franchises, privileges, business, trades, professions, callings, occupations, etc., by imposing a franchise license or privilege tax upon each and every of the afore-mentioned 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 oper*355ating an automobile for Lire, and tbis being true, tbe 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 on State Construction (2d Ed.), sec. 268; *Rodgers v. U. S.,*185 U. S., 83; *Slockett 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.”

It will be noted that the ordinance says “engaged in the business of operating an automobile or automobiles for hire commonly designated as taxi-cabs,” etc.

The defendant contends that the city of Concord has the power and authority to tax the *business*or trade of operating a passenger motor vehicle for hire over its streets and highways. We cannot so hold.

The State act, upon which plaintiff relies, says: “And no county or municipality shall levy any license or privilege tax *upon the use of any motor vehicle*license by the State of North Carolina, except that cities and towns may levy not more than one dollar ($1.00) per year upon any such vehicle resident therein.” ■ “Section 145. Eepealing Clause. That all laws and clauses of laws in conflict with the provisions of this Act or laws or clauses of laws providing otherwise for the subject matter of this Act are hereby repealed.”

*356Tbe State prohibits *"tax upon the use”*and tbe ordinance applies to those engaged in tbe *"business."*Both tbe State statute and tbe ordinance are aimed at tbe same object — tbe use of motor vehicles for hire— taxicabs. Tbe *business*and *use*are tbe same. Tbe contention of defendant is a “distinction without a difference.” On tbe argument defendant admitted that our former opinion (tbe *Finlc case,*supra) is a “lion in tbe path.” *We*think tbe *Finlc case, supra,*is sound and logical and applicable to tbe present case, and we see no reason to change or modify it.

Tbe judgment of tbe court below is Affirmed.