(dissenting): The plaintiff is a merchant in the City of Newbern, carrying a stock of about $1,500, one-tenth of which, or $150, is second-hand clothing. The city has one ordinance taxing all merchants $1 per month for the privilege of merchandising within its corporate limits, and another ordinance requiring all merchants dealing in.second-hand clothing to submit them to the city authorities for fumigation to be done at the expense of the *100owner, and imposing a fine of $50 if this is not done; and a third ordinance imposing another tax on dealers in second hand clothing of $4 per month.
The plaintiff claims that this legislation on the part of the city is unlawful, unconstitutional and oppressive, and brings, this action to enjoin and restrain the city from enforcing these ordinances which require her to submit the clothing for fumigation, and to pay the privilege tax of $4 per month for selling second-hand clothing.
The .first of these ordinances providing for fumigation, falls under the doctrine of police regulations. And it has been held at this Term in State v. Taft that second-hand clothing is not per se a nuisance, and their sale could not be prohibited without, evidence that they were infected, or had been brought from a place known to be infected with contagious diseases. Then, under what is known in law as the power .of police regulation, they might do so. And as it is known that more than ordinary danger exists in the handling and distribution of this class of goods than in firsthand goods, the city or town might require them to be subjected to a pin cess of fumigation, as a kind of quarantine and protection against this extra danger. All this is allowed under what is known as the police power of the government, city or town, and wo do not see that plaintiff has any grounds to complain of the second ordinance, requiring her to submit her goods of this kind to fumigation.
But the next ordinance requiring her to pay a tax of $4 per month for the privilege of selling these goods, falls under the law of taxation. The police power of the city has nothing to do with it. The power of taxation exists in all municipal governments. They could not exist without this power. Desty on Taxation, 50. But this power is regulated and restricted by the Constitution, and also *101by the Acts creating municipalities. All taxes levied on property must be ad valorem and uniform. Constitution, Art. Y., Sec. 3. This section also authorizes the taxation of trades, professions, &c., and does not in terms provide that they shall be' uniform. But this Court in construing this section of the Constitution lias held that it means, that this tax shall be uniform. Gatlin v. Tarboro, 78 N. C., 119. And the question presented is, is this a uniform tax levied for the purpose of revenue to support the City government ’ or is it an attempt to do by taxation what it has no right to do under its police power — destroy this business in the City of Newbern ? This is a business in which persons -of small means are most likely to engage, as it does not require much capital to carry it on. And it is easy to see that a tax upon the privilege of carrying on any mercantile business, of nearly one-third of the capital per annum, will destroy it. And while it is the duty of the Court to attribute good motives to the city authorities and to put such a construction upon their legislation as to sustain its legality, if it is susceptible of such construction, it is equally the duty of the Court not to sustain them, if it appears that their acts are in contravention of the Constitution, or of well-defined personal rights. Treating this, as we must treat it, as purely an act for revenue, we cannot see why persons engaged in the sale of this kind of merchandise shall pay four times as much for the privilege, as those engaged in selling first-hand clothing.
And taking into consideration the three ordinances referred to above, it is apparent to us that the purpose of this legislation was to run this business out of the trade in Newbern, and in coming to this conclusion we do not attribute bad motives to the city fathers who passed these ordinances. We suppose they thou -ht it would be a good thing *102for the city to do so. But wo only bold that there are legal reasons why they cannot do so.
But is this tax uniform, as required by the Constitution, and construed in Gatlin v. Tarboro, supra f It is seriously contended that it is, and State v. Worth, 116 N. C., 1007; State v. Moore, 104 N. C., 714, and State v. Stevenson, 109 N. C., 730, are cited as authorities to sustain this contention. And while this case presents an interesting question, involving constitutional powers and personal rights, it seems to us that it is distinguishable from the cases cited for defendant.
State -v. Stevenson was for not returning purchases as required by the revenue act, for the reason, as he claimed, that he was protected by the law of Inter-State Commerce.
State v. Moore was an indietrneut for selling thirteen pounds of cotton after night, without complying with the terms required by the statute and was sustained by this Court upon the ground that it fell within the lines of the police powers of the State, which ure have seen have nothing to do with the case now under consideration.
State v. Worth was an indictment for violating an ordinance of the city of Wilmington, putting a tax on .all manufacturers of ice, who also should have the privilege of selling at wholesale or retail. And this Court held that the ordinance was constitutional; that manufacturers of ice were a distinct class and that the tax applied to all such manufacturers alike, and, nothing more appearing to the Court, the ordinance was sustained. It was contended in that case that “ manufacturer ” was a generic term, and the same tax should be put on all manufacturers — on the shoemaker at his bench — on the manufacturer of steam engines, or of ice, to make the tax uniform. The Court did not agree to this proposition, and it is claimed that the decision in Worth's case is in effect an adjudication of *103this ease in favor of the defendant. We do not think so. There must be a line drawn somewhere, or that beneficent provision of ihe Constitution requiring uniformity of taxation will be emasculated and destroyed. It may be that Worth’s case is as far as we ought to go. But whether this be so or not, there seems to be quite a distinction between it and the one under consideration. It is true that “manufacturer” is a generic term, but this is subdivided into many kinds of manufacturers — such as a manufacturer of cotton, of tobacco, steam engines, farming implements, and so many others that the generic term, “ manufacturer,” does not amount to a definition, and one gets no definite information as to the business, in which the party is engaged, from this general term.
It is contended that “merchant” is a generic name, and includes all persons who buy and sell goods of any kind ; that a man who sells liquor or drugs or horses is a merchant. So he may be in the broad “generic” sense. But they have another well-defined cognomen. If you were asked as to the business of a druggist, you would not be likely to say he is a merchant in Raleigh; if you were to ask as to what business B. was engaged in, and he was a liquor dealer, you would not be likely to say he is a merchant in Morgan ton ; or if you were asked as to the business of C. who owns a livery stable and buys and sells horses, you would not be likely to say he is one of the merchants of Newbern. But if you were asked as to the plaintiff’s business, you would most likely say she is a merchant in Newbern. That would convey the business definition as to her occupation. You would be no more likely to go on and say that she has a mixed stock of goods of firsthand clothing and second-hand clothing, than you would be likely to say that Sherrill & Co., of Statesville, carry a general line of merchandise, also ready-made clothing and *104family groceries. Such definitions as these would not likely be given, unless specially called for by some one interested in knowfing more about the business than simply to know whether he was a merchant.
It is admitted that in order to sustain this legislation on the part of defendant, treating it simply as a revenue act, they may make the same distinction and discrimination against any merchant in Newbern, who sells shoes as a part of his stock, or who sells tobacco as a part of his stock, or who sells first-hand clothing as a part of his stock. And without enumerating further, that they may select any article of merchandise and discriminate against the merchant who sells it 400 % if they choose to do so. And it is contended there is no Constitution, no law, and no power to protect the unfortunate merchant from such unjust discrimination. We cannot give our assent to such a proposition. And as it is admitted that, unless the term “ merchant ” can be thus chopped up, the tax imposed by this ordinance is not uniform, I therefore think that there is error.
Fairoloth, O. J.: I concur in the dissenting opinion.