Smith v. Southern Exp. Co.

• Decision Date: 30 May 1914
• Docket Number: 644.
• Citation: 82 S.E. 15,166 N.C. 155
• Parties: SMITH v. SOUTHERN EXPRESS CO.
• Court: North Carolina Supreme Court

82 S.E. 15

166 N.C. 155

SMITH v. SOUTHERN EXPRESS CO.

No. 644.

Supreme Court of North Carolina

May 30, 1914

Appeal from Superior Court, Macon County; Ferguson, Judge.

Action by Frank T. Smith against the Southern Express Company. Judgment for defendant, and plaintiff appeals. No error.

Civil action to recover penalty for nondelivery of goods, under section 2633, of Revisal, tried, on appeal from a justice's court, before his honor, Ferguson, Judge, and a jury, at fall term, 1913, superior court of Macon county.

The facts in evidence tended to show that plaintiff was a druggist and pharmacist, regularly licensed by the State Board of Pharmacy, same being in force in June, 1913; that at said date he was bona fide proprietor of a drug store in Franklin, N. C.; that as such he held a regular license as retail liquor dealer from United States Government, and also a license to carry on the business of liquor dealer, covering the period from May 31, 1913, to May 31, 1914, signed by Alex. Moore, sheriff of Macon county; that during the month of June, 1913, he ordered six quarts of cognac brandy from Rose & Co., Tennessee, paid charges on same, and that the shipment by defendant company was received at Franklin county, N. C., this being its destination, and plaintiff demanded same, in person, of defendant, and delivery was refused; that it was the purpose of plaintiff to sell said brandy for profit, but only in the way of filling prescriptions in the bona fide pursuit of his calling and regular business, and this was well known to defendant's agent.

Plaintiff testifying as a witness in his own behalf, said, among other things, that he had not applied for his license to the board of aldermen of Franklin nor to the county commissioners of Macon county, as required by section 2063 of Revisal, but had merely gone to the sheriff for his privilege license tax, and the sheriff had given him the license referred to and appearing in evidence.

His honor charged the jury, if they believed the testimony, they would answer the issue of indebtedness for the penalty in favor of defendant, verdict for defendant. Judgment, and plaintiff excepted and appealed.

T. J Johnston, of Franklin, for appellant.

Johnston & Horn, of Franklin, for appellee.

HOKE J. (after stating the facts as above).

It is now the established public policy of this state, approved by popular vote and expressed and enforced by the general and many local statutes, that, except in very restricted instances, the manufacturing and sale of intoxicating liquors shall not be allowed.

There is an exception made in the case of licensed and regular pharmacists when the liquor is old "for use by a sick person upon the written prescription of a regularly licensed and * * * practicing physician or surgeon having such person under his charge, and not otherwise." Revisal, § 2063. But the Legislature, recognizing the fact that, unless carefully guarded, such an exception might be greatly abused and at times threaten the efficient enforcement of the law closed this section of the Revisal with the provision "that nothing in this section shall be construed so as to relieve druggists from complying with the law as to license and taxes," and in the next succeeding section, No. 2064, enacts that:

"Every person desiring to sell liquors shall make application to the board of county commissioners for an order to the sheriff to issue license. The application shall be in writing and shall show that the applicant is a bona fide citizen of the United States and a legal voter of North Carolina; that he has never been convicted nor confessed his guilt in a court of competent jurisdiction, of any violation of the laws of any state regulating the sale of liquors; and the place where the business is to be carried on, which in all cases (druggists excepted) must be within an incorporated town or city, and more than two hundred feet in a direct line from any church edifice or the premises pertaining thereto. The application must have been approved before filing by the board of commissioners, aldermen or governing body, by whatever name called, of the city or town in which it is proposed to carry on the business and must be accompanied by the affidavit of six freeholders who are taxpayers and residents of the township in which the applicant proposes to do business, all of whom shall declare upon oath that the applicant is a proper person to sell spirituous, vinous or malt liquors; that the building specified is a suitable place for the business to be carried on, and that he has not recommended any other person for liquor license in the same township."

In section 2065, provision is made for a public hearing on the question, and section 2066 enacts that "the license shall be printed in" a certain form, "furnished by the register of deeds," and "issued by the sheriff upon order of the board of county commissioners," etc., etc.

Recurring to the evidence, the plaintiff himself testifies that the license held by him was not issued on order of board of county commissioners; that he made no application to said board, nor did he otherwise comply with the section above cited, enacted to regulate the matter.

It thus appears that he has no valid license permitting him to sell either as druggist or otherwise and, it being his avowed intent to sell for profit and by way of prescription, an act made a misdemeanor by the statute unless a valid license is first obtained, the court will not aid him to this intended breach of the criminal...