At ;tke session of 1866-1867 the General Assembly imposed the following privilege tax under Schedule B of the Bevenue Act: “On all gift enterprises, or any person or establishment offering any article for sale, and proposing to 'present purchasers with any gift or prize, as an inducement to purchase, within the limits of the State, ten dollars! for each day such person or establishment continues its operation. This tax shall not be construed to relieve such persons' or establishment from any penalties incurred by violation of law.” Laws 1866-’67 ch. 72, Schedule B, sec. 7. In substance, but in varying phraseology, this statute was biennially reenacted and retained until modified by the last Legislature so as to read as follows: “On any person or establishment offering any article for sale and proposing to present purchasers with any gift or prize as an inducement to purchase twenty-five dollars ($25); Provided, that this section shall not be construed as giving license or relieving such person or establishment from any penalties incurred by violation of the criminal law.” Bevenue Act, 1925, sec. 52. The material change is the omission of the words “all gift enterprises.”
On 18 October, 1922, the plaintiff contracted to sell certain drugs and articles of merchandise as the “stockholder-agent” of the United Drug Company. The plaintiff is permitted not more than twice a year, as a means of advertising the products of the United Drug Company, to sell to a customer one article of merchandise of a particular kind at the regular retail price or two articles for the regular price of one plus one cent. When the plaintiff proposed to conduct a sale in which two articles should be sold in this way and upon these terms the defend*723ant demanded payment of the prescribed tax on the ground that such, sale would constitute a “gift” or “prize” within the meaning of the statute. The plaintiff paid the tax under protest and seeks in this suit to recover the amount paid. Whether the defendant’s position can be maintained or whether the plaintiff is entitled to recover is the question presented for decision.
In Winston v. Beeson, 135 N. C., 271, the subject is incidentally discussed, though the decision turned upon the construction of another statute. The charter of the city of Winston imposed a license tax on “each gift enterprise or lottery” within the corporate limits, and it was insisted on behalf of the city that’ the sale of trading stamps was a gift enterprise. The Court accepted Black’s definition of “gift enterprise” (Law. Dic. 540) as “a scheme for the division or distribution of certain articles of property, to be determined by chance, among those who have taken shares in the scheme.”
Although applying the doctrine of noscitur a sociis and saying that the word “lottery” signifies a plan for the distribution of prizes, or for obtaining money or goods by chance, the Court declined to be circumscribed by this doctrine and declared: “It would seem plain from the connection in which the words are used, and also by the very use of the words themselves, that the legislature intended to tax only those enterprises, schemes, and offers of bargains which involve substantially the same sort of gambling upon chances as in any other kind of lottery, and which appealed to the disposition or propensity for engaging in hazards and chances with the hope that luck and good fortune may give a good return for a small outlay. The provision refers to gifts or prizes, the precise nature of which is not known at the time, and to cases in which the element of uncertainty is always present. It is restricted therefore to the kind of enterprises which appeal to the gambling instinct.” These words, it should be noted, do not refer exclusively to the charter of the city of Winston. Mr. Justice Walker had before Am the Revenue Act of 1903, ch. 247, sec. 51, and the Revenue Act of 1891, ch. 323, sec. 15, and he construed in language easily to be understood the words “gift” and “prize” which, closely associated with “gift enterprise,” have been retained in every Revenue Act since 1866. In like manner with a gift enterprise they import the “element of uncertainty” and “appeal to the gambling instinct.” This conclusion, we think, is fortified by the proviso appearing in the section before us, and in the sections previously enacted, that the statute shall not be construed as relieving such person or establishment from any penalties incurred by violation of the criminal law (Rev. and Mach. Act, 1925, sec. 53) and by section 81 which provides that nothing in the act shall be construed to apply to a manufacturer or to a merchant who sells the goods of such *724manufacturer from offering to present to tbe purchaser or customer a gift of certain value as an inducement to purchase such goods. A gift of this kind is deemed a legitimate method of advertising goods and attracting customers.
In the several Revenue Acts in which they are used the terms “gift enterprise” and “gift” or “prize,” are so closely associated that, as suggested in Winston v. Beeson, supra, they limit and explain each other, and indicate the nature or character of the “enterprise” or the “gift or prize” upon which the privilege tax is laid. If the statute as repeatedly enacted applied to gifts or prizes the precise nature of which was not known and to cases in which the element of uncertainty was always present, none the less does it now apply to such gifts or prizes because the words “gift enterprise?’ have been omitted from the present statute.
In the sale proposed by the plaintiff we see no such element of chance or uncertainty as appeals to the gambling instinct, no such temptations as lure the unwary into hidden snares. Whether the sale of one of two similar articles for a penny be denominated a gift or a prize the purchaser knows precisely how much he is paying and what he is getting and the seller parts with precisely what he has offered.
In our opinion the plaintiff is not subject to the tax imposed and is entitled to judgment for the tax paid.
The judgment is therefore
Reversed.