State v. Barber, 180 N.C. 711 (1920)

Nov. 17, 1920 · Supreme Court of North Carolina

180 N.C. 711

STATE v. JESSIE C. BARBER.

(Filed 17 November, 1920.)

1. Taxation — Automobiles—License—Principal and Agent — Statutes.

Chapter 90, sec. 72, Public Laws of 1919, requiring a license tax of five hundred dollars from manufacturers, or from corporations or persons offering for sale, etc., auto-vehicles in this State, authorizing such as have paid the tax to employ an unlimited number of agents to sell the machine designated in the license, upon a duplicate license issued with the agent’s name therein on the payment of a fee of five dollars for each agent, was not intended to, and does not include a dealer in second-hand automobiles, but only contemplates the payment of the tax and the taking out of a license by the manufacturer, or in default thereof, by the dealer in new. automobiles, with the right of the latter, in so doing, to appoint agents in the same manner and to the same extent as the manufacturer was authorized upon the payment of the five hundred dollar tax as provided by the statute.

2. Statutes — Doubtful Meaning — Courts— Validity— Licenses— Automobiles — Taxation.

It is a rule of statutory construction that the courts are inclined against an interpretation that will render a law of doubtful validity, and quaere, as to the validity of a statute giving to a manufacturer, or others, the exclusive privilege of selling any special make of automobiles after the same has been acquired and used by independent purchasers.

3. Same — Amendments—Criminal Law.

Construing ch. 90, sec. 72, Public Laws of 1919, with the act subsequently passed at the Special Session of the same year, adding a provision for licensing second-hand dealers in automobiles when the manufacturer’s tax of five hundred dollars has been paid and fixing the fee at fifty dollars, evidences the intent of the former law that taxing second-hand automobiles was not included in its provisions, though not applicable to the indictment in the present case, -the alleged offense of selling a second-hand automobile without the license having been committed before the passage of the amendment.

4. Statutes — Amendments—Taxation—License—Automobiles.

Section 85, ch. 90, Public Laws of 1919, making it a misdemeanor for any one engaging in any business or practicing any profession for which a license is required by the Act, by its express terms and accepted interpretation applies only where a license is provided for in other portions of the law, and not to the sale of second-hand automobiles, not included within the intent and meaning of sec. 72 of the same chapter.

5. Verdicts— Special Verdicts— Findings— Inferences— Criminal Law— Judgments.

A special verdict on thei trial of an action charging the defendant with violating the provisions of eh. 90, sec. 72, by engaging in the business of selling automobiles without a license, is defective when it does not find that the defendant was engaged “in the business of selling the same in the State,” and a conviction cannot be sustained thereon, under the principle that such, verdict must find sufficient facts to permit of the conclusion of law upon which the judgment rests, and that the trial judge is not permitted to find any fact, or inference of fact, necessary to the determination of the issue of guilt or innocence. 8. v. Allen, 166 N. C., 267, cited and applied.'

Walker, J., dissenting in part.

CRIMINAL action, tried on appeal from recorder’s court, before Ray, J., at June Term, 1920, of Rockingham.

Before recorder, tbe jury rendered a special verdict, as follows:

“In tbis case tbe jury finds tbe following facts: Tbe defendant made application to tbe State Treasurer of North Carolina for license to sell ■second-band Ford automobiles, tbe Ford Automobile Company, tbe manufacturers of said Ford cars having already paid tbe license of $500 to do business in tbe State of North Carolina, as required by section 72, chapter 90 of tbe Public Laws of 1919, and tendered tbe license tax required by law. The State Treasurer refused to issue tbe license so applied for solely on tbe grounds that tbe Ford Motor Company of Detroit, Michigan, tbe manufacturers of said cars, bad instructed him not to issue said license.

That tbe defendant, Jessie O. Barber, subsequent to said application for license, sold a second-hand Ford car, which be purchased for sale to Lester Somers, and received tbe money therefor. Tbe defendant bad no license to sell Ford cars at tbe time of said sale.

“Upon tbe foregoing facts, if tbe court being of tbe opinion that tbe defendant is guilty, the jury find him guilty; if tbe court be of tbe opinion that tbe defendant is not guilty, tbe jury find him not guilty.”

Upon these facts, tbe recorder, Hon. I. R. Humphreys, being of opinion that defendant is not guilty, it was so adjudged. •

On appeal tbe verdict and judgment of acquittal was affirmed, and tbe State appealed.

Attorney-General Manning and Assistant Attorney-General Nash for the State.

J. M. Sharpe and Glidewell & Mceberry for defendant.

Hoke, J.

Tbe portion of tbe statute more directly applicable to tbe question presented, Public Laws of 1919, sec. 72, is as follows:

“Every manufacturer of automobiles engaged in tbe business of selling tbe same in tbis State, or every person or persons or corporation engaged in selling automobiles or automobile trucks in tbis State, tbe manufacturer of which has not paid tbe license tax provided for in tbis section, before selling or offering for sale any such machine, shall pay to tbe State Treasurer a tax of five hundred dollars and obtain a license for conducting such business. Any applicant for a license shall furnish the State Treasurer with the names of every class or style of machine offered for sale with a written application for the license. The State. Treasurer shall, upon the written application of any one who has obtained the license provided in this section, and the payment of a fee of five dollars, issue a certified duplicate containing the name of the agent representing the holder of the license, which gives him the privilege of doing business as the agent of the holder of the license. Every one to whom license shall have been issued as provided in this section shall have power to employ an unlimited number of agents to sell only the machine designated in the license upon the payment of the tax aforesaid. Each county may levy a tax of five dollars on each agent doing business in the county. It shall be the duty of the State Treasurer to have this section printed on the face of each license issued under this act for the information and protection of parties to whom the same may be issued.”

It thus appears that any manufacturer of automobiles, on the payment of $500, shall be licensed to sell his machines anywhere in the State, and shall have the privilege of designating any number of agents for the purpose who may obtain a certified duplicate of the license showing the name of the agent, and for which a fee of five dollars is allowed. And where the manufacturer has not seen proper to take out a license, any dealer may do so on payment of the $500, and shall thereupon have the same privilege of designating the agents who may operate under the license obtained by him. From a careful perusal of the section, we are of opinion that it is the purpose and policy, and by correct interpretation the true meaning of the law to provide for licensing the business of selling automobiles at first hand, either by the manufacturer, or by a dealer necessarily operating under a contract or arrangement with the manufacturer, and that the business of selling second-hand automobiles is not contemplated or provided for in the original statute. It is among the accepted rules of statutory construction that the courts are inclined against an interpretation that will render a law of doubtful validity, and there is question if the General Assembly could enact a statute giving to a manufacturer or other the exclusive privilege of selling any special maké of cars after the same had been acquired and used by an independent purchaser. ¥e are further confirmed in our view of the law that the same Legislature of 1919, at its special session amended the section we are considering by adding a provision for licensing independent second-hand dealers in automobiles when the manufacturer’s tax of $500 had been paid, and fixing the fee for same at $50. This amendment, however, was enacted and ratified on 26 August, 1920, after the occurrence set forth, and established in the special verdict, and may not directly affect the guilt or innocence of the defendant on the facts presented. ¥e are not inadvertent to tbe general language of section 85 of tbe statute to tbe effect that any one wbo engages in any business or practices any profession for wbicb a license is required by tbis act, without having procured a license therefor, shall be guilty of a misdemeanor. Tbis, by its very terms and accepted interpretation, applies-only to cases where a license is provided for in other portions of the law, and the statute as it prevailed when the defendant did the act specified not extending to a dealer in second-hand machines, defendant’s-conduct does not 'come under the condemnation of this, the punitory clause of the law. It is, furthermore, the accepted position with us that a special verdict, as a matter of correct procedure, shall set forth all the essential facts required to establish a defendant’s guilt. As said in S. v. Allen, 166 N. C., at page 267: “The guilt or innocence of the defendant must follow as a conclusion of law from the facts found in a special verdict, which refers to the decision of the judge any fact or inference of fact necessary to a determination of the issue will be set aside.” Under this principle, the verdict in the instant case would seem to be defective in that the jury have not found that the defendant has-been engaged in the business of selling second-hand automobiles, but only certain specified facts from which the ultimate fact might be inferred. As the case is of public moment, however, involving the construction of a clause in the general revenue law, we have preferred to-deal with it upon its merits. On the record we are of opinion that defendant has been properly acquitted, and the judgment to that effect, is affirmed.

No error.

WaliceR, J.,

concurring in result: The defect in the special verdict will justify the decision of the Court, but I do not concur in the reason given for it, that by the statute the defendant was not taxable.

The purpose of the Legislature in enacting Public Laws of 1919, ch. 90, sec. 72, was to protect all agents of those manufacturers of automobiles, who had applied for and received a license to sell them in the-State, but it was not intended that his license should extend to those engaged in such business of selling automobiles on their own account and independently of the manufacturer. Such persons are not selling-under him or connected with him in any way, but, on the contrary, they are selling in opposition to him, and are his competitors and rivals in business. It was therefore provided that, where any person or corporation engaged independently in the business of selling automobiles for-which privilege the manufacturer of the automobiles has not paid the-license tax, he shall pay to the State Treasurer a tax of $500, and himself obtain a license for conducting such business. It was clearly intended that no one stall sell under tbe manufacturer’s license unless he-is bis agent. Tbe State Treasurer is authorized to issue a certified duplicate only to tbe “agent or representative” of tbe manufacturer, “wbicb shall give him tbe privilege of doing business ds the agent of tbe licensee.” But not so with tbe second proposition, for if tbe manufacturer has not paid tbe license fee where one, not bis agent, is about to engage in tbe business of selling bis automobiles, or those of any other manufacturer, tbe person so proposing to engage in such business-shall pay it. If this is not true, then two persons, not connected in business, can sell tbe same kind of automobiles under one license, even though they be competitors or rivals in business. Surely tbe Legislature-did not contemplate this result. Tbe independent seller may, under such a construction, and under certain circumstances, enjoy a’more valuable privilege than tbe manufacturer, and pay nothing for it. My conclusion is that tbe business of tbe independent dealer is taxed, if not expressly, then by tbe clearest and most manifest implication, wbicb is sufficient.' Tbe defendant offered to pay tbe tax, but tbe manufacturer-protested against its being received, and tbe State officer desisted. The-ground of tbe manufacturer’s opposition was, though be may not have-stated it, that it would bring tbe defendant into competition with him and destroy bis monopoly, now grown, as we all know, to enormous-proportions.

Tbe special act of 1920 is of no significance, except as showing that, in tbe opinion of tbe Legislature, such a business as that of a dealer in second-hand machines should be subject to tbe privilege tax, but that tbe amount of $500 was too much, under tbe circumstances, as tbe business, from its nature, is somewhat localized, though it may spread out.. Tbe rule as to legislative construction does not apply here, as this was not a construction at all, but a change of tbe law (Stockdale v. Ins. Co., 20 Wallace (U. S.), 331; Koshkoning v. Burton, 104 U. S., 668), and tbe construction was not of long duration and settled on, but of recent date. Attorney-General v. Bank, 21 N. C., 216; Attorney-General v. Bank, 40 N. C., 71. Tbe larger tax was intended for those who dealt through agents, and covered a wide territory. Tbe general license protected each agent by tbe payment of a small additional tax taken out in bis name by tbe principal, but tbe State license of tbe latter did not protect third parties, who were not selling for him. Tbe manufacturer,, therefore, bad not taken out a license wbicb protected tbe defendant’s, business, within tbe meaning of tbe words of tbe statute. It would be-singular if tbe Legislature intended to leave so large and well known a business untaxed, or exempt from tbe privilege tax.