State v. . Razook

Clark, C. J. Whether the solicitor should send a bill to the grand jury and try the defendant upon the indictment, or upon the original warrant, was a matter entirely within his discretion. S. v. Quick, 72 N. C., 243; S. v. Crook, 91 N. C., 542; S. v. Thornton, 136 N. C., 616. The first assignment of error is that the Court permitted the introduction of the ordinance, though it was not printed and published as required by the city charter. This was required to bring notice of the ordinance to the attention of the public, but it is shown here, and not contradicted, that personal notice of the ordinance was served on the defendant. The defendant' further excepted because the paper-writing was not certified by the mayor, as required by Rev., 1595. But that section merely provides that such certificate shall be prima facie evidence, and such certificate is not necessary when the ordinance is proven, as here, by the production by the proper officer of the official records of the town, showing its passage and the entry on the records of the ordinance itself. The other assignment of error is to the refusal of a judgment of non-suit. Upon the defendant’s own testimony he was doing business as an auctioneer, without taking out license, as required by this ordinance; and he continued his sale of goods by auction after personal notice of its existence and purport. Nor is it any defense that the ordinance does not prescribe the penalty for its violation, for under Rev., 3702, the violation of a valid ordinance is a misdemeanor. The evidence was sufficient to be submitted to the jury, that the auctioneering done by the defendant was a violation of the ordinance. The defendant further contends that the ordinance was invalid because discriminatory and unreasonable. It was not discriminatory on its face, for it applies to every person, firm, or corporation engaged in selling by auction any kind of merchandise in the city of Hendersonville conducted within or without buildings. It is immaterial whether or not the defendant was the only person in the town of Hendersonville whose principal business was auctioning goods. The exception of a person selling his own goods, not more than one day in six months, is not a *711 discrimination, for the license tax is on the business. S. v. Kirkpatrick, post, 147. Nor does it appear that the ordinance was unreasonable. The town clearly had the legislative authority under sec. 32, ch. 352, Pr. Laws 1913, to impose such tax. While this does not authorize a license fee so high as to amount to a prohibition of the particular business, 4 Cyc., 1039, we could not hold as a matter of law that in a town the size of Hendersonville, a well known summer resort, the tax here required ($400) is so unreasonable as to prohibit the business, in the absence of evidence to that effect. In 17 R. C. L., 537, it is said: “Ordinarily, however, this discretionary authority in respect of licenses is conferred on the municipal authorities, and it is a rule that whether the license be imposed as a police regulation or as a revenue measure the courts will not review the action of the lawmakers unless an abuse of such discretion- is obvious.” In Minnesota v. Martin, 51 L. R. A. (N. S.), 40: “If, however, it be conceded that the courts have power to declare a municipal ordinance levying a license tax on business invalid on the ground that the tax imposed is so oppressive and unreasonable as to amount to confiscation, rather than taxation, they will not determine the question by mere inspection of the amount of the tax imposed. All presumptions and intendments.are in favor of the validity of the tax; ... in other words, the mere amount of the tax does not prove its invalidity.” The defendant testified that he did not sell more than one-fifth of his goods by auction, and contends that his principal business was not selling goods by auction, and therefore the tax upon him was not authorized by the statute, but there was evidence for the State that he carried on the auctioneering day and night up to 9 and 10 o’clock at night; that at his auctions his place of business was crowded and that he had no counters in his store, and did-not sell goods like merchants. This was a question of fact for the jury, and he did not ask a finding upon it in his favor. Besides, the authority conferred by the statute is to license not only “stores and shops where the principal business is selling goods by auction,” but also upon “auctioneers and Ruction houses.” The defendant did not tender evidence nor ask the court to instruct the jury that the fine was excessive or unreasonable, or intended to prohibit the business, or that it was discriminatory. If the defendant was making his defense in the bona fide belief that the ordinance was invalid, the court gave him the benefit of his contention by suspending the judgment upon the payment of a fine of $5, and the payment of the license fee prescribed by the statute. No error.