Texas Co. v. . Elizabeth City , 210 N.C. 454 ( 1936 )

This is an action to recover the sum of $900.00 paid by the plaintiff to the defendant on 25 January, 1935, under protest, for taxes levied by the defendant for the year 1934, on certain motor boats or vessels owned by the plaintiff, on the ground that said taxes were unlawfully levied by the defendant, for the reason that the city of Elizabeth City was not the situs for purposes of taxation of said motor boats or vessels on 1 April, 1934.

At the trial it was admitted that the plaintiff is a corporation, organized under the laws of the State of Delaware, with its principal office in the city of Wilmington in said state, and that the defendant is a municipal corporation, organized under the laws of the State of North Carolina, with authority to levy and collect taxes for municipal purposes on property, real and personal, located within its corporate limits.

It was further admitted that the plaintiff was the owner on 1 April, 1934, of the motor boats or vessels which were assessed for taxation by the defendant for the year 1934; that the taxes levied on said motor boats or vessels by the defendant for the year 1934, amounting to the sum of $900.00, were paid by the plaintiff on 25 January, 1935, under protest; that demand was duly made by the plaintiff for the refund by the defendant of the amount of said taxes; and that such demand was refused by the defendant prior to the commencement of this action.

Evidence was offered by both plaintiff and defendant tending to support their respective contentions with respect to the situs for purposes of taxation of the motor boats or vessels owned by the plaintiff on 1 April, 1934.

The issue submitted to the jury was answered as follows:

"Did the boats in question, for purposes of taxation for the year 1934, have their situs in Elizabeth City? Answer: `Yes.' "

From judgment that it take nothing by its action against the defendant, the plaintiff appealed to the Supreme Court, assigning errors in the trial. On its appeal to this Court the plaintiff assigns as error the refusal of the trial court to instruct the jury, as requested by it, in writing and in apt time, that "if you believe all the evidence, and find the facts to be as the evidence tends to show, you will answer the issue `No.' "

This assignment of error cannot be sustained.

There was evidence at the trial tending to show that on 28 February, 1934, the plaintiff, the Texas Company, a corporation organized under the laws of the State of Delaware, with its principal office in the city of Wilmington in said state, purchased from M. L. Clark, a resident of Elizabeth City, in the State of North Carolina, five motor boats, which had theretofore been used by the plaintiff, under a contract with the said M. L. Clark, in the conduct of its business in Elizabeth City, N.C. After their purchase, the plaintiff continued to use said motor boats in the conduct of its business in Elizabeth City, and was so using said motor boats on 1 April, 1934. The said motor boats had not been removed by the plaintiff from Elizabeth City, N.C. to the city of Wilmington, Del., or elsewhere. They made trips constantly from the date of their purchase to the time of the trial, on the sounds and rivers of North Carolina and Virginia, transporting and delivering for the plaintiff oils, gasoline, and other petroleum products, but returned each week to Elizabeth City, where they were tied up at the docks and wharves of the plaintiff in said city, during each week-end.

Prior to 28 February, 1934, M. L. Clark, as owner of said motor boats, listed the same for taxation by the defendant, the city of Elizabeth City, and paid the taxes levied on said motor boats annually by said city. On 1 April, 1934, the plaintiff listed for taxation by the defendant all its property, real and personal, located within the corporate limits of Elizabeth City, other than the motor boats which it had purchased from M. L. Clark on 28 February, 1934. The city of Elizabeth City listed or caused to be listed the said motor boats as the property of the plaintiff, at an assessed valuation of $60,000, and levied taxes for the year 1934 at the same rate as was levied by the said city on all property, real and personal, within its corporate limits.

The evidence tending to show that the actual situs for purposes of taxation on 1 April, 1934, of the motor boats owned by the plaintiff at said date, was Elizabeth City, in the State of North Carolina, was properly submitted to the jury, under a charge which correctly applied the law to the facts as they should be found by the jury from the evidence. SeeMecklenburg County v. Sterchi Bros. Stores, Inc., ante, 79, 185 S.E. 454, and cases cited in the opinion in that case by Clarkson, J. See, also,Johnson Oil Refining Co. v. State of Oklahoma, 290 U.S. 158,78 L.Ed., 238, and cases cited in the opinion in that case by Hughes, C. J.

The situs of personal property for purposes of taxation is ordinarily the domicile of the owner. Where, however, the owner maintains said property in a jurisdiction other than that of his domicile, in the conduct of his business within such jurisdiction, the situs of said property for purposes of taxation is its actual situs, and not that of his domicile. The exception to the general rule is now universally recognized by the courts, both Federal and state.

Assignments of error appearing on the record, although based upon exceptions duly taken at the trial, but not discussed in the brief of appellant, filed in this Court, are deemed to have been abandoned, and for that reason have not been considered by this Court. Rule 28.

The judgment in the instant case is affirmed.

No error.