Cowles v. Brittain

• Decision Date: 31 December 1822
• Citation: 9 N.C. 204
• Court: North Carolina Supreme Court
• Parties: COWLES v. BRITTAIN.—From Burke.

9 N.C. 204

COWLES

v.BRITTAIN.—From Burke.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1822

The sheriff may proceed on Sunday by distress to enforce the penalty authorized by a revenue Act of the Legislature for peddling without license. The revenue law is not liable to the constitutional objection of depriving the party of the right of trial by jury; nor does it violate the spirit of that clause of the Federal Constitution which prohibits the State from laying any imposts or duties on imports and exports.

TRESPASS. The plaintiff in 1819 appeared at the town of Morganton, in the county of Burke, in the capacity of a peddler, and as such for the space of one week exposed for sale and did sell goods and wares not of the growth or manufacture of this State. The plaintiff was the owner of two wagons employed in the transportation of these goods, one of which was under his own immediate direction, and the other in charge of one Kelly, the agent of the plaintiff, who also, at the same time and place with plaintiff, offered for sale and did sell a partof the contents of his wagon. The defendant, who was at that time sheriff of the county of Burke, demanded of the plaintiff a tax of $10 on each of the said wagons, offering the defendant a receipt and written licenses to peddle and hawk goods. The plaintiff

refused to pay any tax on the wagon and goods in the possession of Kelly, and offered to pay the tax on the property in his own possession, provided the sheriff would furnish him with a printed license. This the sheriff was unable to do, and plaintiff refused to pay the tax. The plaintiff continued to sell the goods until the sheriff demanded and received from him the sum of $100, inflicted as a penalty by the revenue act of 1818. Kelly had left Morganton with the wagon and goods in his care previous to the payment by plaintiff of this penalty, and on Sunday, when the plaintiff was about to leave the place, the sheriff demanded from him the further sum of $100 as a penalty for the sales made without license by Kelly, the agent of the plaintiff. This sum plaintiff refused to pay, whereupon the defendant took into his possession certain of the plaintiff's goods sufficient to raise the amount of the penalty. This action of trespass was then brought, and on the trial below the judge instructed the jury that on the subject of levying and collecting taxes the will of the Legislature constitutionally expressed was the law of the land, and therefore the revenue act was not unconstitutional as related to the said penalty and the collection thereof; that the failure of the sheriff to be prepared to deliver to the plaintiff a printed license did not authorize the plaintiff to peddle and sell his goods, but might possibly have given him a remedy of a different nature; and that if he had sold his. goods as alleged by the defendant without having paid the taxes and obtained printed licenses, he had incurred the penalty; and also that the seizure on Sunday morning was legal and the sheriff not subjected thereby. The jury returned a...