DOUGLAS, J., dissenting. 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 1 May, 1901, till the finding of the bill *Page 475 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 103 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 C 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 defendant had no knowledge of the law requiring him to pay a special tax. On the special (694) verdict, the court having been of the opinion that the defendant was not guilty, so held him not guilty, and the solicitor for the State made exceptions and appealed to this Court.
An annual license tax of $1 is fixed as the merchant's tax by section 77 of the Revenue Act of 1901, and by section 103 of the same act the failure of every person who shall practice any trade or profession, or use any franchise taxed by the laws of North Carolina without having paid the tax and obtained a license, renders such person guilty of a misdemeanor. By the same section, also, such persons subject themselves to a penalty of $50 for not paying the tax and taking out the license, in addition to the pains and penalties denounced against persons who exercise these trades or professions upon which the law imposes the payment of a tax and the procuring of a license to engage in such business.
There is another offense against the criminal law, connected with the same subject-matter, mentioned in section 101 of the same act, and that offense is the refusal of such person to pay the tax when the same shall be demanded by the sheriff of him. That offense is constituted by a failure on the part of those engaged in trades and professions who have either taken out a license and who did not pay the tax at the time, or who have failed to take out license and who have done business notwithstanding. The language of section 101 on that point is "that it shall be and is hereby made the duty of the 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 C 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. (695)
The first, as we have seen, is the doing business without having paid the tax and procured the license, 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 *Page 476 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 offense, and we think it was an erroneous view of the law.
Reversed.