State v. Briggs

Montgomery, J.

The defendant was indicted for unlawfully engaging in the business of merchandise without having procured a license to engage in the business. The jury returned a special verdict to the effect that the defendant, from May 1, 1901, till the finding of the bill of indictment at February Term, 1902, and at the time of the trial, was a merchant, and had not taken out the license as required in Section 10.3 of the Revenue Act of 1901, till after the finding of the bill of indictment; that the license was not countersigned by the Register of Deeds, as is required by Section 94 of the same act, till after the February Term, 1902, when the bill was found; that the County Commissioners levied no tax under Schedules B and O till the first Monday in September, 1901; that no demand was made on the defendant for the.tax as required in Section 100 of the same act, and that the de-feudant bad no knowledge of the law requiring birn to pay a special tax. On tbe special verdict, tbe Oonrt having been of tbé opinion tbat tbe defendant was not guilty, so beld bim not guilty, and tbe Solicitor for tbe State made exceptions and appealed to tbis Court.

.An annual license tax of one dollar is fixed as tbe merchants’ tax by Section YY of tbe Revenue Act of 1903, and by Section 103 of tbe same act, tbe failure of every person, who shall practice any trade or profession, or use any franchise taxed by tbe laws of North Carolina without having paid tbe tax and obtained a license; renders such person guilty of a misdemeanor. By tbe same section, also, such persons subject themselves to a penalty of $50 for not paying tbe tax and taking out tbe license, in addition to tbe pains and penalties denounced against persons who> exercise these trades or professions upon which tbe law imposes the payment of a tax and tbe procuring of a license to engage in such business.

There is another offense against tbe criminal law, connected with tbe same subject-matter, mentioned in Section 101 of tbe same act, and tbat offense is the refusal of such person to pay the tax when the same shall be demanded by the Sheriff of him. Tbat offense is constituted by a failure on tbe part of those engaged in trades and professions who have either taken out a license and who did not pay tbe tax at tbe time, or who have failed to' take out license and who have done business notwithstanding. The language of Section 101 on tbat point is “tbat it shall be and is hereby made tbe duty of tbe Sheriff of each county in the State to make diligent inquiry as to whether or not all license taxes provided for under Schedules B and 0 of this act shall have been paid, and any person, firm or corporation liable for such license tax, who fails or refuses to pay such tax when demanded by the Sheriff, shall be guilty of a misdemeanor,” etc.

Separate offenses are clearly created by Sections 101 and 103. Tbe first, as we have seen, is the doing business without ha,ving paid the táx and procured the licénse, and the last is the refusal to pay the tax when the Sheriff demands it. A particular reading of Section 101 will make it clear that the Sheriff is not authorized to proceed, as for a criminal offense against an offending trader for the failure to take out the license, but only for a failure or refusal on his part to' pay the tax after demand made by the Sheriff for it.

The reasons for this legislation we need not inquire into. We find the law clearly written, and we only have to interpret it.

His Honor took the view that the two sections, 101 and 103, constituted one offence, and we think it was an erroneous view of the law.

Reversed.