dissenting: Sec. 168, cb. 158, Public Laws 1939, authorizes cities and towns of 30,000 population or more to levy a license or privilege tax of $62.50 for tbe privilege of engaging in tbe business of buying and/or selling or dealing in what is commonly known as junk within tbe city. The city of Ealeigb, being a city of more than 30,000 population, duly enacted an ordinance levying tbis tax and collected tbe same' from tbe plaintiff.
Tbis action was instituted by tbe plaintiff to recover tbe taxes thus paid upon tbe allegation that it was wrongfully collected. Tbe burden rested upon him to show that tbe collection of tbe license tax was unauthorized. In attempting to carry tbis burden be does not challenge tbe validity either of tbe statute, cb. 158, Public Laws 1939, or of tbe ordinance. Nor does be attempt to show that tbe license tax was levied and collected for tbe privilege of engaging in business outside tbe city limits. Therefore, tbe case involves but one determinative issue of fact: Is tbe plaintiff buying and selling junk in tbe city of Ealeigb? As to tbis tbe plaintiff makes a solemn admission in open court that be “Buys and sells junk in tbe city of Ealeigb, N. C., which city has a population of 30,000 inhabitants.” Tbis admission settles tbe only material issue of fact, demonstrates tbe validity of tbe tax and defeats plaintiff’s right of recovery; Hilton v. Harris, 207 N. C., 465, 177 S. E., 411; S. v. Bridgers, 211 N. C., 235, 189 S. E., 869.
Paragraphs 5 and 7 in tbe paper writing appearing in tbe record designated “agreed statement of facts” do not contain stipulations of fact. Paragraph 5 constitutes a statement of tbe contention of tbe defendant in respect to its right to tax and paragraph 7 constitutes a statement of tbe contention of tbe plaintiff. As the city has levied and collected a tax against tbe plaintiff for engaging in tbe business of buying and selling junk inside tbe city limits, and tbe plaintiff admits that be has been thus engaged, tbe respective contentions, as to tbe right of tbe city to levy and collect a license or privilege tax upon tbe plaintiff’s junk business located outside of and beyond tbe territorial limits of tbe city of Ealeigb, are immaterial.
*552They were so considered by the court below,' as' is made to appear by the judgment entered. The following appears therein: “And the court being of the opinion that the tax levied by the city of Raleigh upon the plaintiff for the privilege of ‘buying and/or selling junk’ inside said city limits, irrespective of where his place of business may be, is a valid exercise of legislative authority delegated to said city,” etc.
Thus it appears that the case was tried in the court below upon the theory that the tax was levied against the plaintiff for the privilege of' buying and selling junk in the city of Raleigh. The burden being on the plaintiff, he made no effort to show the contrary.
Such ambiguity as exists is in relation to contentions made as set forth in the agreed statement of facts, and the contradictory positions assumed appear in the statements in the briefs as to the true question presented. This Court is not interested in ambiguous or contradictory contentions which are irrelevant to the facts stipulated and the question of law involved. And the defendant should not be defeated in its right merely because it assumed in the court below an untenable position and made a contention as to its right, in any event, to collect the license tax under circumstances other than those here presented.
The case comes to this: The plaintiff’s admission that he is buying and selling junk in the city of Raleigh is an acknowledgment of liability for the license tax and defeats his right of recovery. But the case is remanded for the reason that the parties in the court below by their contentions, raised an immaterial issue as to the right of the city to tax the plaintiff on the theory that his place of business was located outside the corporate limits of the defendant but within two miles thereof and for the reason that in their briefs they are not in accord as to the question presented. The remand is to the end that the parties may make proper contentions and agree upon the question of law to be decided. In this I cannot concur.
The Roebuck and Miller cases cited in the majority opinion are not 'in point. In the Roebuck case a fact material to the decision of the case did not appear in the record. Here the very fact which authorized the levy of the tax is admitted. In the Miller case a supplemental agreement enlarging and extending the facts agreed in the original case was submitted to and considered by the court on rehearing.
As plaintiff has failed to show any right to recover the tax paid and admits facts which sustain the levy and collection thereof, the judgment below should be affirmed.
ClaRksoN and DeviN, JJ., concur in dissent.