State v. Stevens

• Decision Date: 08 May 1894
• Citation: 19 S.E. 861,114 N.C. 873
• Parties: STATE v. STEVENS.
• Court: North Carolina Supreme Court

19 S.E. 861

114 N.C. 873

STATE v. STEVENS.

Supreme Court of North Carolina

May 8, 1894

Appeal from criminal court, Buncombe county; Thomas A. Jones, Judge.

Prosecution of Jacob Stevens for selling liquor in the city of Asheville without a city license. Defendant was acquitted. The state appeals. Reversed.

Avery J., dissenting.

The Attorney General and Louis M. Bourne, for the State.

J. H Merrimon, for appellee.

BURWELL J.

By section 36 of chapter 111 of the Private Laws of 1883 the aldermen of the city of Asheville were empowered to levy and collect "upon every license to retail spirituous or malt liquors a tax not exceeding five hundred dollars." This provision, if it stood alone, would seem to indicate the intent to confer upon the municipal authorities the power to issue licenses to those whom they saw fit to allow to carry on this business, and to impose a tax, not exceeding the sum named, for the privilege of so doing. If these words are read in connection with section 19 of the said act, wherein the board of aldermen are authorized "to regulate and restrain tippling houses," it becomes manifest, we think, that they had authority to impose a license tax on the business of retailing liquor if carried on within the corporate limits of the city of Asheville. Having this authority to impose a license tax on this business, and also to pass all laws and ordinances necessary to carry the intent and meaning of that act into effect, it must follow that the municipality was invested with power to enforce the payment of this license tax. Code, § 3804. Taxes laid on property can be collected by seizing and selling the property taxed, but inasmuch as license taxes are very often not collectible by seizure of the effects of the licensee, revenue laws provide for the enforcement of the payment of such taxes by the imposition of fines or penalties upon those who violate their provisions by carrying on the taxed trade or business without having paid the privilege tax and obtained the required license. The revenue laws both of this state and the United States contain such provisions. Indeed, without them such laws would be almost nugatory. The same act--as, for instance, the selling of a pint of whisky--may be a violation of both the state and federal laws, and may be punished in each jurisdiction; and this will imply no encroachment of one authority into the province of the other. This is well settled. And so the selling of a pint of spirits in the city of Asheville may be a violation of the revenue law of the state and of its police regulations (Code, § 1076), and also of the ordinance of the city adopted to secure the collection of its revenue. While the act is one, the offenses are different, and the offender must answer for each offense in the proper jurisdiction. In the one prosecution he would be charged with selling the spirituous liquor without having first obtained the license required by the state law; while in the other prosecution he would be charged with selling the spirits without having first obtained the license required by the city ordinance. The latter charge constitutes a distinct offense, and is not punishable except under the provision of the ordinance and section 3820 of the Code.

Authorities need not be cited to show that, if an ordinance of a city provides for the punishment by penalty of an act which is prohibited and punished by state law, the ordinance is invalid and void. That well-established principle has no application here. An assault is punishable by the general law of the state. That act, in itself, whenever and however done is a violation of the law of the state. Municipal councils are not permitted to...