State v. Powell

• Decision Date: 07 March 1887
• Citation: 1 S.E. 482,97 N.C. 417
• Parties: STATE v. POWELL.
• Court: North Carolina Supreme Court

1 S.E. 482

97 N.C. 417

STATE v. POWELL.

Supreme Court of North Carolina

March 7, 1887

Appeal from superior court, Burke county.

The charter of an incorporated town provided that any person violating any ordinance of the town should be deemed guilty of a misdemeanor, and made the mayor a special court to arrest and try persons charged with such misdemeanors. Held that the nonpayment of a license imposed by ordinance, and for nonpayment of which the ordinance imposed a "forfeiture," was a criminal offense, and could be prosecuted as such before the mayor.

The Attorney General, for the State.

S. J Ervin, for defendant.

SMITH C.J.

The prosecution against the defendant, commenced and tried before the mayor of the town of Morganton, is for a misdemeanor in violating a town ordinance, and, by the defendant's appeal was carried to the superior court. The ordinance is set out in the record, and, among other subjects of taxation, imposes upon the keeper of "each stable" a tax of $10 per annum, to be paid in advance, and a license obtained to carry on the business; and concludes with affixing a penalty in these words: "(4) Any person or persons or companies who shall begin, carry on, or practice any of the businesses trades, practices, professions, or arts enumerated in section 3 [preceding] without first having paid the tax, and procured from the secretary of the board a license, shall forfeit and pay the sum of twenty-five dollars, in addition to the tax."

The charge is that the defendant did begin and carry on the trade or business of keeping a "livery stable for pay without first having paid the privilege tax of ten dollars, and procuring a license from the secretary," etc. The record of the proceedings in the superior court is not in entire harmony with the statement contained in the case, but the variance is not material. The entry in the record is: "Demurrer sustained. On motion of defendant's counsel, this action is dismissed for want of jurisdiction."

The case sets out that the defendant "moved to quash and dismiss the said warrant and proceeding upon the ground that the said ordinances, enacted under said charter, (Priv. Acts 1885, c. 120,) created no criminal offense, but provided a simple penalty recoverable by civil action," which motion was sustained by the court. The prosecuting solicitor in the court below contended, as the attorney general here contends, that by virtue of sections 11 and 12 the violation of the ordinances, although affixing a penalty, is likewise constituted a criminal act, the jurisdiction to try which is conferred upon the mayor. The first of these sections confers upon this officer, in general terms, the jurisdiction and authority of a justice of the peace, and then proceeds to declare that "the mayor shall further be a special court within the corporate limits of the town, to have arrested and to try all persons who are charged with a misdemeanor for violating any ordinance of the town; and, if the accused shall be found guilty, he shall be fined, at the discretion of the court or mayor, not exceeding the amount specified in the ordinance or ordinances so violated, or imprisoned, at the discretion of the court or mayor, not exceeding the length of time specified in the ordinance or ordinances so violated, or both: provided, the fine shall in no case exceed the sum of $50,...