S. v. . Addington , 121 N.C. 538 ( 1897 )

This is a criminal action begun before a justice of the peace, appealed to the Superior Court, and there tried on the original papers without indictment. The affidavit on which the warrant was issued charges that the defendant "did unlawfully and wilfully violate statute of North Carolina of 1895, as amended by statute of 1897, respecting the measuring of logs at said Baltimore and North Carolina Land and Lumber Company, by refusing to pay the regular sworn inspector for measuring certain logs, as provided in aforesaid statute, belonging to one Bryan Hardison." . . . As the statute, so indefinitely referred to, creates two distinct offenses, neither of which is specifically set out in the affidavit or warrant, we must look to the special verdict to ascertain for which offense the defendant was actually tried. The statute alleged to have been violated is chapter 173 of the Public Laws of 1895 as amended and extended to Beaufort County by chapter 200 of the Public Laws of 1897, the sections herein referred to being in the original act.

Section 1 provides that "It shall be unlawful for any person to sell or purchase mill logs in quantities of 1,000 feet or more without their being inspected and measured by a sworn inspector."

Section 6 provides that "No mill owner or his employee shall have, or cause to have, mill logs cut by the thousand feet without their being inspected and measured by a sworn inspector."

Section 8 provides that "Any violation of this act, either by seller orpurchaser, shall be fined not less than $20 nor more than $40 for each offense, at the discretion of the court." This section, the only one providing any penalty, being limited to the "seller or purchaser," can apply only to section 1. Therefore, section 6 is left without any penalty, so far as this act is concerned, but, being a matter of public grievance expressly forbidden by statute, it becomes a misdemeanor, as at common law punishable by indictment. Archbold Crim. Law, (540) 2 Hawk., ch. 25, sec. 4; S. v. Parker, 91 N.C. 650; S. v. Bloodworth,94 N.C. 918. As its punishment is, therefore, not limited to a fine of $50 or imprisonment for thirty days, it is not within the jurisdiction of a justice of the peace. Const. of N.C. Art. IV, sec. 27; Code, sec. 892.

The special verdict finds, as the only act of sale or purchase, that the lumber company, of which the defendant was vice-president, purchasedstanding timber from J. Bryan Hardison on 29 November, 1896, and fully paid for it before the passage of the amendatory act of 2 March, 1897, which extended the operation of the act to Beaufort. This constitutes no offense whatever, as the act being criminal, cannot operate ex post facto; and, moreover, "standing timber" is not referred to in the act. The word "log" has a definite significance, and means the trunk of a tree cut down and stripped of its branches. A saw log means a log cut into a length suitable for being sawed into lumber. A tree standing in the woods can no more be called saw log, because it is capable of being cut into a saw log, than it can properly be called a plank or shingles from its capability of being sawed into those articles.

If, by any stretch of interpretation, "saw logs" could be construed to include "standing timber," then the offense would be complete at the instant the purchase or sale was completed without measurement. How the standing timber of an extensive swamp can be measured "by the superficial or board measure" we cannot comprehend. No law could stand such construction.

The only offense of which the defendant can be guilty under the special verdict, if guilty at all, is that of having mill logs cut by the thousand feet in violation of section 6. This offense we have seen is not within the jurisdiction of a justice of the peace.

We have not overlooked the other difficult and interesting (541) questions raised in this case, but we do not feel at liberty to ignore the vital question of jurisdiction so clearly stated and ably argued by the learned counsel simply to express an opinion upon matters not properly before us.

No error.

Cited: S. v. Short, post, 689; S. v. Pierce, 123 N.C. 747; S. v.Ripley, 127 N.C. 517; S. v. R. R., 145 N.C. 540.