State v. . Barber , 180 N.C. 711 ( 1920 )

WALKER, J., dissenting in part. Before recorder, the jury rendered a special verdict, as follows:

"In this case the jury finds the following facts: The defendant made application to the State Treasurer of North Carolina for license to sell second-hand Ford automobiles, the Ford Automobile Company, the manufacturers of said Ford cars having already paid the license of $500 to do business in the State of North Carolina, as required by section 72, chapter 90 of the Public Laws of 1919, and tendered the license tax required by law. The State Treasurer refused to issue the license so applied for solely on the grounds that the Ford Motor Company of Detroit, Michigan, the manufacturers of said cars, had instructed him not to issue said license.

That the defendant, Jessie C. Barber, subsequent to said application for license, sold a second-hand Ford car, which he purchased for sale to Lester Somers, and received the money therefor. The defendant had no license to sell Ford cars at the time of said sale.

"Upon the foregoing facts, if the court being of the opinion that the defendant is guilty, the jury find him guilty; if the court be of the opinion that the defendant is not guilty, the jury find him not guilty."

Upon these facts, the recorder, Hon. I. R. Humphreys, being of opinion that defendant is not guilty, it was so adjudged.

On appeal the verdict and judgment of acquittal was affirmed, and the State appealed. The portion of the statute more directly applicable to the question presented, Public Laws of 1919, sec. 72, is as follows:

"Every manufacturer of automobiles engaged in the business of selling the same in this State, or every person or persons or corporation engaged in selling automobiles or automobile trucks in this State, the manufacturer of which has not paid the license tax provided for in this section, before selling or offering for sale any such machine, shall pay to the State Treasurer a tax of five hundred dollars and obtain a license for conducting such business. Any applicant for a license shall furnish the State Treasurer with the names of every class or style of machine offered for sale with a written application for the license. The State Treasurer shall, upon the written application of any one who has obtained the license provided in this section, and the payment of a fee of five dollars, issue a certified duplicate containing the name of the agent representing the holder of the license, which gives him the privilege of doing business as the agent of the holder of the license. Every one to whom license shall have been issued as provided in this section shall have power to employ an unlimited number of agents to sell only the machine designated in the license upon the payment of the tax aforesaid. Each county may levy a tax of five dollars on each agent doing business in the county. It shall be the duty of the State Treasurer to have this section printed on the face of each license issued under this act for the information and protection of parties to whom the same may be issued."

It thus appears that any manufacturer of automobiles, on the payment of $500, shall be licensed to sell his machines anywhere in the State, and shall have the privilege of designating any number of agents for the purpose who may obtain a certified duplicate of the license showing the name of the agent, and for which a fee of five dollars is allowed. And where the manufacturer has not seen proper to take out a license, any dealer may do so on payment of the $500, and shall thereupon have the same privilege of designating the agents who may operate under the license obtained by him. From a careful perusal of the section, we are of opinion that it is the purpose and policy, and by correct interpretation the true meaning of the law to provide for licensing the business of selling automobiles at first hand, either by the manufacturer, or by a dealer necessarily operating under a contract or arrangement with the manufacturer, and that the business of selling second-hand automobiles is not contemplated or provided for in the original statute. It is among the accepted rules of statutory construction that the courts are inclined against an interpretation that will render a law of doubtful validity, and there is question if the General Assembly could enact a statute giving to a manufacturer or other the exclusive privilege of selling any special make of cars after the same had been acquired and used by an independent purchaser. We are further confirmed in our view of the law that the same Legislature of 1919, at its special session amended the section we are considering by adding a provision for licensing independent second-hand dealers in automobiles when the manufacturer's tax of $500 had been paid, and fixing the fee for same at $50. This amendment, however, was enacted and ratified on 26 August, 1920, after the occurrence set forth, and established in the special verdict, and may not directly affect the guilt or innocence of the defendant on the facts presented. We are not inadvertent to the general language of section 85 of the statute to the effect that any one who engages in any business or practices any profession for which a license is required by this act, without having procured a license therefor, shall be guilty of a misdemeanor. This, by its very terms and accepted interpretation, applies only to cases where a license is provided for in other portions of the law, and the statute as it prevailed when the defendant did the act specified not extending to a dealer in second-hand machines, defendant's conduct does not come under the condemnation of this, the punitory clause of the law. It is, furthermore, the accepted position with us that a special verdict, as a matter of correct procedure, shall set forth all the essential facts required to establish a defendant's guilt. As said in S. v. Allen, 166 N.C. at page 267: "The guilt or innocence of the defendant must follow as a conclusion of law from the facts found in a special verdict, which refers to the decision of the judge any fact or inference of fact necessary to a determination of the issue will be set aside." Under this principle, the verdict in the instant case would seem to be defective in that the jury have not found that the defendant has been engaged in the business of selling second-hand automobiles, but only certain specified facts from which the ultimate fact might be inferred. As the case is of public moment, however, involving the construction of a clause in the general revenue law, we have preferred to deal with it upon its merits. On the record we are of opinion that defendant has been properly acquitted, and the judgment to that effect is affirmed.

No error.