State v. Miller

• Citation: 93 N.C. 511,53 Am.Rep. 469
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 October 1885
• Parties: STATE v. J. W. MILLER.

93 N.C. 511

53 Am.Rep. 469

STATE

v.J. W. MILLER.

Supreme Court of North Carolina.

October Term, 1885.

INDICTMENT, tried before Meares, Judge, and a jury, at October Term, 1885, of MECKLENBURG Criminal Court.

The indictment is for an alleged violation of §28, ch. 175, of the act to raise revenue, passed at the last session of the General Assembly, and contains two counts. In the first, the defendant is charged with the unlawful selling and attempting to sell, “goods, wares and merchandise” to M. C. Mayer and John Ross, partners trading under the firm name of Mayer & Ross, the said goods, wares and merchandise not being of his own manufacture, without having paid the tax and obtained the license therefor.”

In the second count, he is charged with unlawfully selling and attempting to sell, while acting as the agent of the Union Milling Company, a foreign corporation, “goods, wares and merchandise” of the said company, by wholesale, to the same copartnership, without having paid the tax and obtained a license.

Upon the trial, upon the plea of not guilty, the jury returned a special verdict in these words:

“The defendant is a member of the firm of R. M. Miller & Sons, who are general cotton and commission merchants, and doing business in the city of Charlotte. Some ninety days ago, the Union Milling Company of Detroit, Michigan, shipped to the order of J. L. Hardin, of Charlotte, N. C., a car-load of flour, and drew through the bank for the amount of the flour, with a bill of lading attached to the draft. J. L. Hardin refused to accept the draft, whereupon the draft was paid by the defendant, and the bill of lading turned over to the defendant. When the flour arrived in Charlotte it was delivered to the defendant, who took possession of the same. The defendant then took samples of the flour and went to, among others, one M. C. Mayer, at Mayer's place of business in Charlotte, and offered to sell the same by wholesale to him. M. C. Mayer is a merchant doing business in Charlotte, but in a different place from that of the defendant, and is in no way connected with the defendant. The business house of Mayer is on the same side of the street with that of the defendant, and in the same building. He finally sold it. The defendant returns the amount of his sales as a commission merchant for taxation. He accounted for the amount of this sale to the Union Milling Company, reserving his usual commissions. He has returned his commissions in this case for taxation. He has not paid the tax required by law for carrying on the business of a drummer, nor did he have a license to carry on the business of a drummer, at the time he offered the flour for sale to M. C. Mayer. If the Court should be of the opinion, from the foregoing finding, that the defendant is guilty, then the jury find him guilty; but if the Court should be of the opinion, from the foregoing facts, that the defendant is not guilty, then the jury find him not guilty.”

Upon this verdict the Court adjudged the defendant J. W. Miller not guilty, and from the order of discharge the Solicitor, on behalf of the State, appealed.

Attorney General and Reade, Busbee & Busbee, for the State .

Messrs. Bynum, Bynum & Shipp, for the defendant .

SMITH, C. J., (after stating the facts).

The offence with which the defendant is charged, is a violation of section 28, chapter 175, of the acts of 1885, entitled an act to raise revenue, such parts and so much of which, as are material in passing upon the appeal, are as follows:

“Every person acting as a drummer in his own behalf, or as agent for another person or firm, who shall sell or attempt to sell, goods, wares or merchandise of any description, by wholesale, with or without samples, shall, before soliciting orders or making any such sales, pay to the State Treasurer, a tax of one hundred dollars, and obtain a license which shall operate one year from its date, and shall be exempt from any other license tax, either State, county, city or town. * * * Any person violating the provisions of this section shall be guilty of a misdemeanor, and shall be fined not less than two hundred dollars, or imprisoned not less than ninety days,” &c.

While the defendant as a general cotton and commission merchant in association with his sons and, under the partnership name of R. M. Miller & Sons, is conducting a regular and recognized business in Charlotte, upon which he pays all the taxes imposed under the revenue law, he is sought to be made responsible, as a “drummer” under another clause of the act, though not so designated in the charge, for the single act of selling a consigned and paid for lot of flour sent from a distant State.

We think few persons in reading the statute and noticing the different classes of employment or occupation there assessed, would regard the act of the defendant as a “drumming,” and the defendant as a drummer within the purview of the section upon which the indictment rests, nor could they well do so, without confounding business distinctions enumerated and separately taxed therein. The word, in our opinion, is neither used in the act, nor in its common acceptation, in a sense which admits its application to...