Under tbe admissions of tbe parties, tbe only thing left for consideration in tbis Court is tbe constitutionality of tbe statute levying tbe tax.
Tbe challenge of tbe plaintiff to tbe validity of tbe privilege tax imposed on mechanical vendors of soft drinks may be succinctly stated as follows: (a) Because it is based on an unjustifiable distinction between mechanical devices selling soft drinks and other similar devices selling other merchandise, thus leading to an unreasonable classification; and (b) because tbe law itself has selected as a classification, for the purpose of taxation, mechanical devices selling “merchandise” (excepting certain products, as to wbicb no controversy exists), and has attempted to discriminate within that class against devices wbicb vend soft drinks solely, tbe said “soft drinks” being included within tbe term “merchandise.” There are variations and distinctions in tbe attack made upon tbe statute, but we think they all may be resolved into tbe propositions laid 'down. We cannot agree that they are sound.
Tbe breadth of tbe classification insisted upon as representing tbe limit of legislation in that direction leads us to consider tbe purpose and effect of classification in bringing about a just and equitable distribution of tbe tax burden as required by Article Y, section 3, of tbe Constitution. Manifestly such classification is essential to any orderly system of taxation, and tbe lack of it is as likely to do injustice as an improper classification is to produce unfair discrimination. Loose and general classification will neither serve tbe Government nor protect tbe individuals to be taxed. Privileges especially are so varied in tbe subjects to wbicb they relate, and tbe opportunities they afford for profitable exercise differ so widely, that extensive classification is imperative.
There are two rules by wbicb tbe Legislature must be governed in classifying subjects for taxation: First, tbe classification itself must be based upon a reasonable distinction. Cooley on Taxation, section 344, pp. 746, 747; American Sugar Refining Co. v. Louisiana, 179 U. S., 89, 45 L. Ed., 102. Second: Tbe tax must apply equally to all those within tbe class defined. Cooley on Taxation, 4th Ed., section 269, p. 575, section 352, p. 750; Dalton v. Brown, 159 N. C., 175, 75 S. E., 40;
Upon review bere, the widest latitude must be accorded to the Legislature in making the.distinctions which are the bases for classification, and they will not be disturbed unless capricious, arbitrary, and unjustified by reason. Brown-Forman Co. v. Kentucky, 217 U. S., 563, 54 L. Ed., 833; Sproles v. Binford, 286 U. S., 374, 76 L. Ed., 1167; Whitney v. California, 274 U. S., 357, 71 L. Ed., 1095.
The Legislature is not required to preamble or label its classifications or disclose the principles upon which they are made. It is sufficient if the Court, upon review, may find them supported by justifiable reasoning. In passing upon this the Court is not required to depend solely upon evidence or testimony bearing upon the fairness of the classification, if that should ever be required, but it is permitted to resort to common knowledge of the subjects under consideration, and publicly known conditions, economic or otherwise, which pertain to the particular subject of the classification.
Since the economic advantage derived from the use of a mechanical vendor may be regarded as the same in the sale of all merchandise capable of delivery in that way, this factor, as a basis of classification, may be considered as canceled out. We are left to consider whether a distinction between the kinds of merchandise sold through such devices, or similar devices, may justify a further classification for the purpose of taxation, and whether such further classification is within the intent of the statute and has been therein effectively expressed.
The contention of the plaintiff that commodities comprehended in the general term “merchandise” may not be further classified for the purpose of imposing a privilege tax on their sale, through a mechanical device similar to that through which other merchandise is sold, is opposed to both theory and practice.
Under our own Revenue Act, chapter 158, Public Laws of 1939, various license taxes are imposed for the privilege of engaging in business involving sales based upon the distinction both as to the quantity of the commodities sold under the privilege and as to the character and kind of the commodities. Peddlers selling merchandise are taxed accordingly as they sell on foot, with a horse-drawn vehicle or motor car; section 121. Merchants pay one dollar for the privilege under section 405, and, in addition, 3% of the total gross sales. Other articles, unquestionably merchandise, require privilege taxes at varying rates according to the kind of merchandise sold, as, for instance, adding-machines, automatic sprinklers, bowie knives, cash registers (and a list of other merchandise included under section 119), sewing machines,
The classification of privilege taxes, as illustrated, is abundantly justified, both in texts on the subject and decisions of the courts. Cooley on Taxation, section 353, p. 752; Brown-Forman Co. v. Kentucky, supra, affirming 125 Ky., 402, 101 S. W., 321; 12 Am. Jur., p. 193, and cases cited; 26 R. C. L., p. 228; S. v. Danenberg, 151 N. C., 718, 66 S. E., 301, 26 L. R. A. (N. S.), 890; Drug Co. v. Lenoir, 160 N. C., 571, 76 S. E., 480. See annotations 6 A. L. R., 1417; Mercantile Co. v. Mount Olive, 161 N. C., 121, 76 S. E., 690; Leonard v. Maxwell, 216 N. C., 89, 93, 3 S. E. (2d), 316.
It is clear that the Legislature has not exhausted its power of classification by making a distinction as to the manner in which an article is sold — as, for example, through mechanical devices — but it may make a further classification or sub-classification within reasonable limits with reference to the kinds of goods, wares, and merchandise which are so sold from them; and the fact that they are all sold in a similar manner will not defeat the further classification of the privilege.
These distinctions imply a difference in the commodities which may reasonably affect the value of the privilege because of the expectancy of its more profitable ‘exercise. ¥e think it will be unquestioned that the soft drink trade has achieved a unique place in the commercial world, both as to the volume of business, the certainty of sale in comparatively large volume and, therefore, the opportunity for gainful return attending the privilege of selling such merchandise. There is an economic advantage to one who exercises such privilege which vindicates the classification made by the Legislature as to the devices through which the sale may be made.
The act is criticized because the tax imposed on coin-slot machines selling soft drinks seems to have been put out of its place and is made to keep company with machines making intangible returns, whereas, taxes upon coin-slot devices selling merchandise generally are placed in another section — an anatomical misfit, like having a heart on the wrong side or an upside-down stomach. But it is still there and we see no reason why it may not function. A statute is not to be condemned
The judgment of the court below is
Affirmed.