State v. Bean
| Decision Date | 31 October 1884 |
| Citation | 91 N.C. 554 |
| Court | North Carolina Supreme Court |
| Parties | STATE v. MOSES L. BEAN. |
CRIMINAL ACTION, commenced before the mayor of Salisbury, for violation of town ordinance, and tried on appeal at Spring Term, 1884, of ROWAN Superior Court, before Gilmer, J.
By the act of incorporation of the town of Salisbury ratified on the 27th day of January, 1859, it was enacted in section 28 that the commissioners of said town shall have power to regulate the manner in which provisions may be sold in the streets and markets, and to fix penalties for the breach of their ordinances which shall be recovered in the name of the commissioners of the town of Salisbury before any court having competent jurisdiction; and afterwards, to-wit., on the 26th of August, 1881, the commissioners passed the ordinance for the violation of which this prosecution was commenced, a copy of which is hereinafter set forth in the special verdict of the jury, who at said term of the superior court found as follows:
“That the charter of the town of Salisbury authorizes the commissioners of the town of Salisbury to regulate the manner in which provisions may be sold in the streets and markets, and to fix penalties for the breach of this ordinance and that thereupon the commissioners for the town of Salisbury passed an ordinance as follows:
Be it ordained that no butcher or other person shall cut up and expose to sale any fresh meat within the corporate limits of the town of Salisbury, without first obtaining a license from the commissioners of the town, which license shall authorize the person or persons to sell meat, at a certain stand, shop or stall, specified in said license, to be used as a market, and for which license said persons shall pay the sum of three dollars per month, payable in advance, and any person selling meat without a license, or at any place not licensed as a market, shall forfeit and pay for each offence the sum of ten dollars.
We further find that thereafter the said town passed the following ordinance:
Be it ordained that no beef or other fresh meat shall be hung up or publicly exposed on the side-walks, under a penalty of a fine of five dollars for each and every offence.
We further find as a fact that the defendant did thereafter carry on the business of a butcher and expose to sale fresh meat within the corporate limits of said town, and without paying the tax of three dollars per month, payable in advance, and that said meats so sold and exposed for sale were not the products of defendant's farm, and that the town collector of Salisbury demanded said taxes, and defendant refused to pay the same.
Upon the facts so found as aforesaid, we further say, that if in law the commissioners of the town of Salisbury had legal authority to pass the first ordinance aforesaid, then we find the defendant guilty; but if the said commissioners had not legal authority to pass such ordinance, then we find the defendant not guilty.”
Upon the finding of the jury the court adjudged that the defendant was not guilty, and the solicitor appealed.
Attorney-General and J. M. McCorkle, for the State .
Mr. Theo. F. Kluttz, for defendant .
The question is, did His Honor err in pronouncing judgment upon the special verdict. And this involves the inquiry whether the commissioners of the town of Salisbury had the power under its charter and its amendments, to require that butchers, before selling fresh meat in the town of Salisbury, should first obtain a license therefor and pay the sum of three dollars per month in advance for the privilege.
By the original act of incorporation, ratified the 27th day of January, 1859, the commissioners of the town were empowered to levy taxes upon the polls and real property, upon stoops, steps, porches or piazzas encroaching more than a certain distance upon the streets; upon hogs and dogs, peddlers, circusses, rope dancers, &c., and it was enacted (the 28th section of the act): “That said board of commissioners shall have power to regulate the manner in which provisions may be sold in the streets and markets of said town, and to regulate the manner in which the public markets and streets in said town may be used, and to affix penalties for the breach of these ordinances which shall be recovered in the name of the commissioners of the town of Salisbury before any court having competent jurisdiction.
But no power was given to the commissioners to impose a tax or fee upon any persons for the privilege of exercising a trade or calling within the town.
The act of 1859, ch. 223, an act to amend the charter of the town of Salisbury, enacted: “That the board of commissioners for the town of Salisbury shall have power annually to levy and cause to be collected in the manner prescribed in the charter the following additional taxes, and here was enumerated a long list of taxable subjects, but the power to tax butchers or to require them to take out and pay for a license before exercising their...
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