State v. Bridgers

• Decision Date: 24 February 1937
• Docket Number: 73.
• Citation: State v. Bridgers, 211 N.C. 235, 189 S.E. 869 (N.C. 1937)
• Parties: STATE v. BRIDGERS.
• Court: North Carolina Supreme Court

189 S.E. 869

211 N.C. 235

STATE v. BRIDGERS.

No. 73.

Supreme Court of North Carolina

February 24, 1937

Appeal from Superior Court, Nash County; M. V. Barnhill, Judge.

W. I Bridgers was convicted of engaging in the business of wholesale dealer in bread and bakery produce without securing a license, and he appeals.

Affirmed.

Charter of city giving it certain powers in respect to levying franchise taxes on trades and professions, and statute authorizing tax on trades and professions within corporate limits, will be construed together in determining legislative grant of power to municipality to levy upon bakeries operating or delivering in city (C.S. § 2677).

The defendant was tried before the recorder of Rocky Mount on a warrant for violating an ordinance of the city of Rocky Mount, N. C., by engaging in the business of wholesale dealer in bread and bakery produce without securing a license, as required by the city of Rocky Mount. On the trial before the recorder, the defendant plead not guilty, but was found guilty and required to pay the license and cost of $3.50. Defendant appealed to the superior court, and the following special verdict by the consent of the State and defendant is set forth in the record:

"The jury, duly sworn and empaneled, after hearing the evidence for both the State and defendant, find the following facts beyond a reasonable doubt, and return the same as a special verdict: First: The jury finds as a fact, beyond a reasonable doubt, that the City of Rocky Mount is a municipal corporation authorized and existing under a Charter contained in chapter 209 of the Private Laws of 1907 and the amendments thereto. Second: That on or about the 18th day of June, 1936, the Board of Aldermen of the City of Rocky Mount, enacted its annual Revenue Ordinance the pertinent sections of which are as follows:

An Ordinance to provide for license tax upon certain trades and businesses operations in the City of Rocky Mount, North Carolina.

Section 1. That in addition to the tax on property and polls, as otherwise provided for, and under the power and authority conferred in the Charter of the City of Rocky Mount, and the Revenue Act of 1935, there shall be levied and collected annually, or oftener, where provided for, a privilege license tax on trades and business operations as set out in the following sections and schedule. Every license shall be a personal privilege and shall not be transferable to any other person, firm or corporation, but licensee may have it transferred to another location.

Section 2. Unlawful to conduct business without a license. It shall be unlawful for any person, firm or corporation or the agent or servants thereof to engage in or carry on any business in the City of Rocky Mount for which there is required a license, without first having paid the license tax and obtained the license, under a penalty of $25.00 for each offense. For the purpose of this section the opening of a place of business, or offering to sell, followed by a single sale, or, the doing for profit of any act pertaining to the business, trade, employment or profession for which a license is required shall be construed to be engaging in or carrying on such business; and each day that such person, firm or corporation shall engage in or carry on such business as aforesaid, shall be construed to be a separate offense.

Section 4. That in order to defray the expenses of the City there shall be levied and collected the following privilege license taxes for each year commencing July 1st, 1936, on trades, agencies and business as hereinafter set forth: 9. (b) Bakery and/or wholesale dealer in bakery products, using the streets of the City for delivery of same-$25.00. The term 'Bakery Products' as used herein shall be construed to include bread, rolls, cakes, pies, cookies, doughnuts and similar products and other sweet yeast raised goods baked by commercial bakeries but shall not be construed to include biscuits, crackers, pretzels or ice cream cones or products baked in private homes.

Third: Staudt's Bakery, Inc., is a corporation engaged in a general bakery business, baking and selling bakery products including bread, rolls, cakes, pies and other sweet yeast raised products, with its bakery and place of business in the City of Raleigh, Wake County, North Carolina, and maintain no bakery or place of business in the City of Rocky Mount, but operate a truck from its plant in Raleigh to the City of Rocky Mount daily, carrying bread and other bakery products and delivering same to grocery stores and cafes in said city. Its salesmen sell its bread, cakes and pies and make deliveries from its trucks operating over the streets of the City of Rocky Mount and collects therefor at the time of delivery and also solicits from its customers orders to be delivered at some later date. From time to time its customers discontinue buying bakery products from it and also from time to time its salesmen by solicitation in the City of Rocky Mount obtain new accounts which are served in said city.

Fourth. On or about the 12th day of August, 1936, the defendant, W. I. Bridgers, a resident of Wake County, was employed as the agent of and salesman of the said Bakery, receiving as his compensation a salary and commission on sales made by him and at said time was in charge of the truck of the said Bakery on the streets of the City of Rocky Mount, acting as its salesman in the disposal of its bakery products and performing the usual duties of its salesmen as more fully hereinbefore set forth. At said time neither Staudt's Bakery, Inc., nor the defendant, W. I. Bridgers, had applied for or procured the privilege license required by subdivision 9 of section 4 of the Revenue Ordinance of the City of Rocky Mount as hereinbefore set forth, and the defendant, W. I. Bridgers was indicted for engaging in the said business without obtaining the license required.

Fifth: The jury finds as a fact, beyond a reasonable doubt, that the defendant sold and delivered bakery products as defined in said ordinance from a truck in the City of Rocky Mount on the 12th day of August, 1936, and used the streets of the City of Rocky Mount for the delivery of the same without having paid for or procured the privilege license tax demanded by the City of Rocky Mount for the purpose of selling bread or other bakery products within the City.

Upon the foregoing findings of facts, if the Court shall be of the opinion that the defendant is guilty, we, the jury, find him guilty, and if, upon the foregoing findings of facts, the court shall be of the opinion that the defendant is not guilty, we find him not guilty. Upon the coming in of the special verdict, the Court directs a verdict of guilty.

M. V. Barnhill, Judge Presiding."

And it is thereupon ordered...