State v. . Finlayson , 113 N.C. 628 ( 1893 )

The jury found a special verdict as follows:

"1. That the city of Goldsboro, under its charter, by its regularly constituted authorities, on 1 June, 1892, adopted the following ordinance:

ORDINANCE 12.

"``Be it ordained by the Aldermen of the city of Goldsboro:

"``SECTION 1. That the following taxes shall be levied and collected, and are hereby levied on real and personal property and polls, and on the business, trades and occupations carried on within the city of Goldsboro.

"``SEC. 2. That all monthly license taxes levied by this ordinance shall be collected on the first day of each month in advance.

"``SEC. 7. That any person refusing or neglecting to pay the license tax assessed against them for the space of ten days shall be liable to a fine of $5.'

"2. That by another ordinance of said city it is made a misdemeanor to fail to take out the license above provided for.

"3. That defendant is the agent of the Baltimore United Oil Company, a branch of the Standard Oil Company, having charge of the business of the said United Oil Company in Eastern North Carolina, embracing the city of Goldsboro.

"4. That the Baltimore United Oil Company keeps oil stored in the city of Goldsboro, and sells oil to merchants in said city through a regular broker, who charges a brokerage for selling. Said broker is a general broker, and sells for many other parties besides the United Oil Company, and pays the brokerage tax as required by the ordinances of said city. That said oil is shipped to Goldsboro from outside the State, and is stored for convenience of delivery and of purchasers. It (630) is shipped in barrels. Is sold without breaking packages.

"5. In making sales of oil said broker keeps a ticket or memorandum of the sales, which he forwards to the Norfolk office of the United Oil Company, and the bills are there made out against the purchasers for the price of said oil; in rare cases the purchaser proffers cash for the oil, and when he does so the broker takes the cash and charges the cash to himself on his brokerage account — there having been paid in cash at no time up to the present more than was due the broker for brokerage. When a broker buys oil he is at once supplied out of the stock oil, and said broker will receive the cash for any amount of oil on hand proposed to be bought.

"6. That the Norfolk, Virginia, office has charge of the territory of Eastern North Carolina.

"7. That the Standard Oil Company is a corporation organized under the laws of one of the States other than North Carolina, as is also the United Oil Company, and the principle place of business of the said Standard Oil Company is Jersey City, in the State of New Jersey, and the principal place of business of the United Oil Company is in Baltimore, in the State of Maryland, and the said company and the said companies are producers, refiners and dealers in oils, selling the same throughout the United States.

"8. That it was the duty of the defendant to take out license for said business in the city of Goldsboro, if it was the duty of any person so to do. The defendant is an actual resident of the city of Goldsboro, N.C.

"9. That the defendant refuses to take out the license required by said ordinance.

"If, upon these facts, the court shall be of opinion that the defendant is guilty, we find him guilty; but if, upon the facts, the court shall be of opinion that the defendant is not guilty, we find him not guilty."

The court being of opinion that the defendant was guilty, upon the facts found, directed a verdict of guilty and fined defendant (631) $5, whereupon defendant appealed. The defendant is prosecuted for refusing and neglecting to pay the license tax, as required by chapter 12, section 7, of the ordinances of the city of Goldsboro. The special verdict is fatally defective, in that it fails to clearly allege the trade or occupation carried on by the defendant, and to set forth the specific provisions of the ordinance which it is alleged was violated by the defendant. Evidently a very important question concerning interstate commerce was intended to be presented, but we cannot consider it upon this verdict. According to the ruling in S. v.Corporation, 111 N.C. 661, there must be a

New trial.

Cited: S. v. Hanner, 143 N.C. 635.