Appeal
from superior court, Guilford county; Moore, Judge.
Faircloth
C.J., and Clark, J., dissenting.
An
agent of a portrait company who receives pictures and frames
in an unfinished state, shipped by his firm in another state
to itself, breaks the bulk, and places the pictures in their
proper frames, and delivers them to persons who previously
contracted for them with other employés, is within a city
ordinance declaring that persons engaged in the business of
selling or delivering picture frames or pictures in such
city, whether an order shall have been previously taken or
not, shall pay a certain license tax.
Chas
M. Stedman, for appellant.
The
Attorney General and Scales & Scales, for appellee.
FURCHES
J.
This is
a prosecution for an alleged violation of an ordinance of the
city of Greensboro. There was no objection or exception to
the manner in which it was commenced, and it may be
maintained if the defendant has violated the city ordinance (
State v. Higgs, 126 N.C. 1014, 35 S.E. 473, 48 L. R
A. 446), unless the ordinance is in contravention of the
doctrine of interstate commerce, and therefore is
unconstitutional. The case comes to this court on appeal of
defendant from the judgment of the court below upon the
following special verdict: "That on the ___ day of ___,
1900, the defendant, being employed by the Chicago Portrait
Company, a foreign corporation, of Chicago, III., came to
Greensboro for the purpose of delivering certain pictures and
frames for which contracts of sale had previously been made
by other employes of the Chicago Portrait Company, who had
preceded the defendant in Greensboro. That the defendant went
to the Southern Railway freight station, and took therefrom
large packages of pictures and frames which had been shipped
to Greensboro, N. C., addressed to the Chicago Portrait
Company, carried these packages to the rooms of the defendant
in the Woods House, a hotel in the city of Greensboro, and
there broke the bulk, placing said pictures in their proper
frames, and from this point delivered the pictures one at a
time to the purchasers in the city of Greensboro. The
defendant had been engaged in this work two days when
arrested. That section 57 of the charter of the city of
Greensboro, N. C., is as follows: 'That in addition to
the subjects listed for taxation, the aldermen may levy a tax
on the following subjects, the amount of which tax, when
fixed, shall be collected by the collector of taxes, and if
it be not paid on demand, the same may be recovered by suit,
or the articles upon which the tax is imposed, or any other
property of the owner may be forthwith distrained and sold to
satisfy the same, namely: *** (21) Upon all subjects taxed
under Schedule B, chapter one hundred and thirty-six, Laws of
North Carolina, session of one thousand eight hundred and
eighty-three, not heretofore provided for, shall pay a
license or privilege tax of ten dollars. And the board of
aldermen shall have power to impose a license tax on any
business carried on in the city of Greensboro, not before
enumerated herein, not to exceed ten dollars a year.' The
business mentioned in the ordinance following is not named in
the charter of the city, other than in the above section.
That the following is an ordinance duly passed by the board
of aldermen of the city of Greensboro under and by virtue of
the foregoing section of said charter, and prior to any of
the orders being taken: 'Be it ordained by the board of
alderman of the city of Greensboro, North Carolina: That
every person engaged in the business of selling or delivering
picture frames, pictures, photographs, or likenesses of the
human face, in the city of Greensboro, whether an order for
the same shall have been previously taken or not, unless the
said business is carried on by the same person in connection
with some other business for which a license has already been
paid to the city, shall pay a license tax of ten dollars for
each year. Any person engaging in said business without
having paid the license tax required herein, shall be fined
twenty dollars, and each and every sale or delivery shall
constitute a separate and distinct offense.' That neither
the defendant, the Chicago Portrait Company, nor any of the
employé of the Chicago Portrait Company, have paid the city
any license tax. If, upon the foregoing facts, the court
shall be of opinion that the defendant is guilty, the jury
say that he is guilty; otherwise, they say that he is not
guilty." Upon this special verdict the court held that
the defendant was guilty, and the verdict was so entered, and
the defendant fined $20. From this verdict and judgment the
defendant excepted, and appealed to the supreme court.
The
defendant assigns as ground of error: "(1) The facts set
out in the special verdict do not make the defendant guilty
of engaging in the business of delivering pictures without
first having obtained a license so
to do, within the purview and contemplation of the ordinance
of the city of Greensboro. (2) That, should defendant be held
liable under the ordinance in controversy, said ordinance is
unconstitutional, being in conflict with section 8 of article
1 of the constitution of the United States, being an
interference with, and an attempt to regulate, commerce among
the states, and a burden upon the same." We will
consider these assignments in the order in which they are
stated; for, if the defendant has not been guilty of carrying
on a business in violation of the city ordinance, then he is
guilty of no offense, --is not guilty,--and there is nothing
for the second assignment to rest upon.
It
seems to us that a good way to test this exception is to
devest our minds of the fact that the defendant was the agent
of the Chicago Portrait Company, and to consider him as a
citizen of Greensboro, who had bought these pictures, and had
them shipped to him in the unfinished state they were. And if
he had taken them to his house, opened them, assorted them
and put them together, and then sold and delivered them to
parties in town, would he not have been a dealer engaged in
selling and delivering pictures and picture frames in
violation of the ordinance? We think he would, and would be
guilty,--would be unless he is protected by reason of the
unconstitutionality of the ordinance, as stated in the...
