State v. Fowler

• Decision Date: 23 February 1927
• Docket Number: 521.
• Citation: 136 S.E. 709,193 N.C. 290
• Parties: STATE v. FOWLER.
• Court: North Carolina Supreme Court

136 S.E. 709

193 N.C. 290

STATE v. FOWLER.

No. 521.

Supreme Court of North Carolina

February 23, 1927

Appeal from Superior Court, Polk County; Stack, Judge.

William Fowler was convicted of possessing intoxicating liquor, and he appeals. No error.

The defendant was indicted and convicted of having intoxicating liquor in his possession in violation of law. The General Assembly, at the session of 1925, passed a public local law applicable to the counties of Transylvania, Jackson, Clay Graham, and Polk. Pub. Local Laws 1925, c. 114. Section 1 provides that certain officers, charged with the duty of enforcing the criminal laws of the state, who shall produce evidence convicting any person of manufacturing liquor selling, transporting, buying, or having it on hand, etc shall receive a reward of $25 to be paid by the person convicted, etc. Section 2:

"That any person or persons who shall be convicted of any of the offenses hereinbefore mentioned [manufacturing, selling or offering for sale, transporting, buying, or having liquor on hand for the purpose of sale or any other violation of the prohibition law] shall be guilty of a misdemeanor and shall, for the first offense, be fined not less than fifty dollars nor more than one hundred dollars, and for a second or further similar offense shall be imprisoned not less than six months nor more than two years, and shall be required to pay all costs and sums taxed as a reward against such convicted person in addition to such fine or imprisonment as herein mentioned."

The other sections are not material.

The indictment contains counts charging the defendant with the offenses enumerated. Upon conviction he was sentenced to imprisonment for six months to be worked on the public roads of Henderson county, and appealed, assigning error.

Quinn, Hamrick & Harris, of Rutherfordton, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

For the first offense section 2 imposes a fine; for the second or further similar offense, imprisonment for a term not less than six months nor more than two years. The defendant admitted that he had previously been convicted in the federal court; and for this reason, according to a recital in the judgment, he was sentenced to imprisonment in the present case; but the aggravated punishment prescribed for a subsequent conviction cannot be imposed, unless the prior conviction, which is an essential part of the description of the second offense, is charged in the indictment. C. S. § 4617; State v. Davidson, 124 N.C. 839, 32 S.E. 957; State v. Dunlap, 159 N.C. 491, 74 S.E. 626; State v. Walker, 179 N.C. 730, 102 S.E. 404; State v. Clark, 183 N.C. 733, 110 S.E. 641.

The state contends, however, that under the general law any person who violates the provisions of the prohibition act may be fined or imprisoned or both fined and imprisoned, in the discretion of the court (C. S. § 3410); that the act of 1925 (Pub. Local Laws, c. 114) confers upon residents of the five counties to which it applies a privilege or immunity not enjoyed by other residents of the state; and that such privilege or immunity is inhibited by the organic law.

In theory, constitutional government is based upon equality of rights, privileges, and protection. The Fourteenth Amendment provides:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws,"

-and, as said Mr. Justice Field, these provisions intend "that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses." Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923. That the state Constitution rests upon the same theory is made obvious by reference to the Declaration of Rights. There are Constitutions which provide in express terms that general laws shall have a uniform operation. Ours embodies the principle in the following language:

"No man or set of men are entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services." Const. art. 1, § 7.

This provision, we think, is a guaranty that every valid enactment of a general law applicable to the whole state shall operate uniformly upon persons and property, giving to all under like circumstances equal protection and security, and neither laying burdens nor conferring privileges upon any person that are not laid or conferred upon others under the same circumstances or conditions. 6 R. C. L. 369, § 364; 36 Cyc. 992; 12 C.J. 1187, § 955; 16 C.J. 1352, § 3189; State v. Bargus, 53 Ohio St. 94, 41 N.E. 245, 53 Am. St. Rep. 628; Jones v. R. R., 231 Ill. 302, 83 N.E. 215, 121 Am. St. Rep. 313; Cooley's Con. Lim. 554 et seq. A practical application of the provision in civil actions may be found in Simonton v. Lanier, 71 N.C. 498, and Rowland v. B. & L. Ass'n, 116 N.C. 878, 22 S.E. 8, in which the purported grant of a right to charge more than the statutory rate of interest is condemned as an exclusive or separate privilege. Power Co. v. Elizabeth City, 188 N.C. 278, 124 S.E. 611.

This principle, it should be understood, was not designed to interfere, and does not interfere, with the police power of the state, the object of which is to promote the health peace, morals, and good order of the people, to increase the industries...