State v. Dannenberg

• Decision Date: 04 March 1909
• Citation: 63 S.E. 946,150 N.C. 799
• Parties: STATE v. DANNENBERG.
• Court: North Carolina Supreme Court

63 S.E. 946

150 N.C. 799

STATE v. DANNENBERG.

Supreme Court of North Carolina

March 4, 1909

Appeal from Superior Court, Carteret County; O. H. Allen, Judge.

J Dannenberg was convicted of violating a municipal ordinance and he appeals. Reversed.

Clark C.J., and Hoke, J., dissenting.

The Morehead City charter (Priv.Laws 1887, p. 997, c. 111) empowering the city to adopt such ordinances as tend to insure good order, or preserve the health, comfort, or convenience of its citizens, does not authorize an ordinance prohibiting the sale within the city of nonintoxicating drinks for the sale of which the federal government requires a license.

The following is the special verdict:

"The jury duly impaneled to try the issue between the state and J. Dannenberg return the following special verdict:

"(1) The town of Morehead City is duly incorporated, and we find its charter to be the various acts of General Assembly chartering and amending the charter of Morehead City which are to be considered a part of the verdict.

"(2) The board of commissioners of Morehead City on April 21, 1908, passed the following ordinance: 'Sec. 2. That it shall be unlawful for any person, firm or corporation to sell any drink within the said town of Morehead City, for which the said person, firm or corporation has been required by or has secured a license from the United States government for the sale of spirituous or malt liquors before selling said drink. Any person, firm or corporation violating this section shall be subject to a penalty of $25 for each offense.'

"(3) That the revenue officials of the United States, pursuant to statute, required that all drinks or liquids sold containing as much as 1/2 of 1 per cent. of alcohol should subject the seller to a special tax of $20 per annum for malt liquor and $25 per annum for spirituous liquor.

"(4) That prior to July 31, 1908, the defendant paid the $20 tax required for dealers in malt liquor by retail for the year ending June 30, 1909, to be sold in Morehead City.

"(5) That defendant engaged in the sale of a drink in Morehead City whose alcoholic part was derived from malt in the definition of United States statute containing over 1/2 of 1 per cent. of alcohol and less than 2 per cent.

"(6) That on the 31st day of July, 1908, the defendant within the corporate limits of Morehead City sold to one John D. Styson, a drink of the above-described beverage.

"Whether upon these facts the defendant in law committed the offense charged in the warrant the jury are ignorant, and pray the opinion of the court. If the court, upon these facts, is of opinion that the defendant is guilty, then the jury so find, but if the court upon these facts is of opinion that the defendant is not guilty, then the jury so find."

The defendant was tried and convicted in the mayor's court of Morehead City for violating the following ordinance of said municipality: "That it shall be unlawful for any person, firm or corporation to sell any drink within the said town of Morehead City, for which the said person, firm or corporation has been required by or has secured a license from the United States government for the sale of spirituous or malt liquors before selling said drink."

W. D. McIver and E. J. Justice, for appellant.

T. W. Bickett, Atty. Gen., for the State.

BROWN J.

It appears in the special verdict that the revenue officials of the United States pursuant to statute require that all drinks or liquids sold containing as much as 1/2 of 1 per cent. of alcohol should subject the seller to a special tax of $20 per annum for malt liquor. Further, that prior to July 1, 1908 the defendant paid the $20 federal tax upon malt liquor drinks, and on 31st of July within the corporate limits of Morehead City sold to one Styson a drink of a certain beverage whose alcoholic part was derived from malt in the definition of United States statute containing over 1/2 per cent. of alcohol and less than 2 per cent. We find nothing in the charter of Morehead City (chapter 111, p. 997, Priv. Laws 1887) which conferred upon the municipal authorities the right to prohibit the sale of the...