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Attorney(S)

Attorney-General Manning and Assistant Attorney-General Nash for the State. McD. Ray and O. V. F. Blythe for defendant.

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Smart Summary

Summary of Opinion: State v. T. A. Razook (Supreme Court of North Carolina, filed 12 May 1920)

Factual and Procedural Background

The defendant, T. A. Razook, was convicted after an appeal from the mayor's court of the town of Hendersonville for auctioning goods without obtaining the license required by Ordinance No. 76 of that town. On appeal the solicitor presented a bill to the grand jury (an indictment) rather than trying the case on the original warrant. The ordinance required a license of $400 for persons engaged in the business of selling merchandise at auction within the corporate limits, regardless of whether conducted within or without buildings, and included specified exceptions (judicial sales, sales to wind up estates, and sales by a citizen not regularly engaged in auctioneering to dispose of household goods limited to not more than one day in six months). The defendant was found guilty and appealed to the Supreme Court of North Carolina. The opinion addresses several challenges to the validity and application of the ordinance and other procedural matters described below.

Legal Issues Presented

Whether it was within the solicitor's discretion to send a bill to the grand jury and try the defendant on an indictment rather than trying the case on the original warrant from the mayor's court.
Whether the town ordinance could be admitted in evidence for conviction despite not having been printed and published as required by the city charter, and whether the ordinance needed to be certified by the mayor under Rev. 1595.
Whether the evidence (including the defendant's own testimony) was sufficient to deny a judgment of nonsuit and submit the case to the jury.
Whether the ordinance was invalid as discriminatory or unreasonable (including whether the $400 license tax was so excessive as to prohibit the business and therefore invalid).
Whether the absence of an express penalty in the ordinance defeats criminal prosecution for its violation.

Arguments of the Parties

Appellant's (Defendant's) Arguments

The ordinance had not been printed and published as required by the city charter, so it should not have been admissible as proof of a binding ordinance.
The paper-writing (ordinance) was not certified by the mayor as required by Rev. 1595.
The ordinance was discriminatory or unreasonable, in part because the defendant alleged his principal business was not auctioneering (he claimed he did not sell more than one-fifth of his goods by auction) and because he was, as alleged, the only person in town principally engaged in auctioneering.
The tax (license fee of $400) was, in effect, so high as to prohibit the business and thus invalid as a matter of law (an excessive or confiscatory license).
The ordinance did not prescribe a penalty, which the defendant suggested undermined the criminal prosecution.

Respondent's (State's) Contentions

The solicitor acted within his discretion in submitting a bill to the grand jury rather than trying the case on the warrant.
Personal notice of the ordinance had been given to the defendant, which negated the need for the court to require the statutory publication for purposes of conviction.
The ordinance was properly proven by production of the official town records showing its passage, making the mayor's certificate (Rev. 1595) unnecessary in this instance.
The evidence (including testimony that the defendant continued auctioneering after personal notice and other State evidence about his auctioneering activities) was sufficient to go to the jury; the ordinance was valid under the statutory authority cited (sec. 32, ch. 352, Pr. Laws 1913).
The absence of an express penalty in the ordinance was not a defense because Rev. 3702 makes the violation of a valid ordinance a misdemeanor.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
S. v. Quick, 72 N.C. 243	Supports the proposition that the solicitor has discretion to send a bill to the grand jury instead of trying the case on the warrant.	Cited with other North Carolina cases to uphold the solicitor's discretion in choosing indictment over warrant trial.
S. v. Crook, 91 N.C. 542	Same principle regarding solicitor's discretion in prosecution procedure.	Used alongside other cases to conclude the solicitor acted within his discretion.
S. v. Thornton, 136 N.C. 616	Same principle regarding prosecutorial discretion.	Applied to confirm that choosing an indictment was within prosecutorial discretion.
Rev. 1595 (statutory provision)	Provides that a mayor's certificate of ordinance is prima facie evidence of the ordinance's existence.	The court held the certificate is not necessary where the ordinance is proven by production of the official town records showing its passage; cited to explain evidentiary effect of certification.
Rev. 3702 (statutory provision)	Provides that violation of a valid town ordinance is a misdemeanor.	Applied to reject the defense that the absence of a prescribed penalty in the ordinance defeated prosecution.
S. v. Kirkpatrick, (post 747)	Cited for the proposition that the exception in the ordinance (one-day sales by person selling own goods) is not discriminatory because the license tax is on the business.	Used to support the conclusion that the exception did not render the ordinance discriminatory.
4 Cyc., 1039 (encyclopedic authority)	States that a licensing statute should not be so high as to amount to a prohibition of the business.	Quoted to frame the standard that a license could be invalid if confiscatory, but the court declined to hold the $400 fee invalid as a matter of law without evidence.
17 R.C.L., 537 (legal encyclopedia)	Explains judicial deference to municipal licensing and taxation authority; courts will not interfere absent an obvious abuse of discretion.	Relied upon to justify deference to municipal authority and to decline to invalidate the ordinance on its face.
Minnesota v. Martin, 51 L.R.A. (N.S.) 40	Holds that courts will not declare a municipal license tax invalid by mere inspection of the amount; presumptions favor validity.	Quoted to support the proposition that the amount of the tax alone does not prove invalidity and that evidence is required to show confiscatory effect.

Court's Reasoning and Analysis

The Court's analysis proceeded through the several challenges raised on appeal and applied statutory provisions and precedent from North Carolina and other authorities as follows.

1) Prosecutorial Discretion: The Court held that whether the solicitor should send a bill to the grand jury and try the defendant upon an indictment rather than trying the case on the original warrant was entirely within the solicitor's discretion. The Court cited S. v. Quick, S. v. Crook, and S. v. Thornton to support this proposition and applied those authorities to conclude the solicitor acted properly.

2) Publication and Certification of Ordinance: The Court recognized that the charter requirement that ordinances be printed and published has the purpose of bringing them to public attention. However, because the defendant had received personal notice of the ordinance, the publication requirement was not necessary for conviction in this case. Regarding the mayor's certificate required by Rev. 1595, the Court explained that the certificate is only prima facie evidence. When the ordinance is otherwise proven by production of the official records of the town by the proper officer (which showed its passage and entry on the records), the mayor's certificate is unnecessary. The Court therefore admitted the ordinance in evidence.

3) Sufficiency of Evidence — Nonsuit: The Court refused to grant a judgment of nonsuit because, on the defendant's own testimony, he was knowingly engaged in auctioneering without the license required by the ordinance and continued sales after personal notice. The Court held that the evidence was sufficient to be submitted to the jury to determine whether the conduct violated the ordinance.

4) Absence of Express Penalty in the Ordinance: The Court rejected the argument that the ordinance's failure to prescribe a penalty prevented criminal prosecution. Under Rev. 3702, the violation of a valid town ordinance is a misdemeanor, so the absence of an express penalty in the ordinance did not bar conviction.

5) Discrimination and Reasonableness (Excessiveness of License): The Court found the ordinance not discriminatory on its face because it applied to everyone engaged in selling merchandise at auction within the city limits. The exception for a person selling his own goods for not more than one day in six months was not viewed as a discrimination because the license is on the business. The Court observed that the legislative authority for the ordinance was sec. 32, ch. 352, Pr. Laws 1913, which empowers cities to license and regulate auctioneers and related businesses.

On the challenge that the $400 license might be so high as to prohibit the business, the Court reiterated the general principle (citing 4 Cyc., 1039 and Minnesota v. Martin) that courts will not invalidate a municipal license as confiscatory by mere inspection of the amount; presumptions favor validity and evidence is required to show confiscation. The Court concluded it could not hold, as a matter of law, that $400 was so unreasonable in a town of Hendersonville's size (a noted summer resort) as to prohibit the business, absent evidence to that effect.

6) Question of Fact About Principal Business: The defendant claimed his principal business was not auctioneering (he testified he sold only one-fifth of his goods by auction). The Court noted there was contrary evidence for the State (auctioneering day and night, crowded auctions, absence of counters, not selling like merchants), making the question of whether his principal business was auctioneering a factual issue for the jury. The defendant did not request a directed finding in his favor on this issue.

7) Relief and Court's Equitable Consideration: Although the defendant did not tender evidence or request instructions that the fine was excessive, the Court noted that if the defendant acted in a bona fide belief that the ordinance was invalid, the trial court had given him the benefit of that contention by suspending judgment upon payment of a fine of $5 and payment of the license fee prescribed by the statute.

Holding and Implications

NO ERROR.

Holding (core ruling): The Supreme Court found no error in the proceedings below. It upheld (1) the solicitor's discretion to indict rather than proceed on the warrant; (2) the admission of the ordinance in evidence despite lack of publication, because the defendant had personal notice and the ordinance was proven by official records; (3) the denial of a nonsuit because the defendant's own testimony and other evidence made the case for the jury; (4) the proposition that absence of an express penalty in the ordinance does not preclude criminal prosecution under Rev. 3702; and (5) the validity of the ordinance on its face, declining to declare the $400 license invalid as a matter of law without evidence showing it amounted to a prohibition.

Direct consequences for the parties: The defendant's conviction was sustained. The trial court, recognizing the defendant's asserted bona fide belief in invalidity, had suspended judgment conditioned on payment of a $5 fine and the payment of the prescribed license fee. The Court expressly declined to invalidate the ordinance on its face and treated factual disputes (such as whether the defendant's principal business was auctioneering, or whether the fee was confiscatory) as matters properly for the jury to resolve or for the defendant to prove.

Broader implications: The opinion applies existing statutory authorities and precedent to affirm prosecutorial discretion and municipal licensing authority, and it emphasizes that courts will not invalidate municipal license taxes by mere inspection of the amount; evidence of confiscation or unreasonable prohibition is required. The opinion does not announce a new rule of law beyond these applications of precedent and statute.

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STATE v. T. A. RAZOOK.

1. Criminal Law — Mayor's Court — Appeal — Bill — Warrant — Solicitor's Discretion.

It is within the discretion of the solicitor to send a bill to the grand jury on appeal from a judgment of the mayor of a town imposing a penalty for the violation of its ordinance, instead of trying the case on the warrant.

2. Municipal Corporations — Cities and Towns — Ordinances — Publication — Actual Notice — Criminal Law.

The requirement of the charter of a city or town that its ordinances shall be printed and published, is to bring it to the attention of the public, and where personal notice has been given to an offender thereunder who afterwards commits the offense prohibited, the requirement of publication, etc., is not necessary for a conviction.

3. Municipal Corporations — Cities and Towns — Ordinances — Certification — Evidence — Statutes.

The certification of a town ordinance as required by Rev., 1595, is only prima facie evidence of its existence, and this is unnecessary when the ordinance has been proven by the production of the official records of the town by the proper officer, which shows its passage.

4. Evidence — Nonsuit — Municipal Corporations — Cities and Towns — Ordinances.

Where it is shown by the defendant's own evidence that he was knowingly engaged in the business of auctioneering in a town without having taken out the license required by a valid ordinance, a judgment as of nonsuit will be refused.

5. Municipal Corporations — Cities and Towns — Ordinances — Penalties — Statutes.

The violation of a valid town ordinance is made a misdemeanor by Rev., 3702, and the defense that the ordinance did not prescribe a penalty therefor, is untenable.

6. Constitutional Law — Discrimination — Taxation — Ordinances — Municipal Corporations — Cities and Towns.

A town ordinance requiring a license tax from those selling merchandise at auction within the town limits, whether conducted within or without a building is not rendered discriminatory by the violator thereof being the only one in the town engaged in the business, or by a provision excepting a person thus selling his own goods, not more than one day in six months.

7. Constitutional Law — Taxation — License Tax — Prohibition — To Business — Municipal Corporations — Cities and Towns — Ordinances — Evidence — Questions for Jury.

While a town ordinance imposing a tax upon one conducting a business of auctioneering within its limits may not place the tax so unreasonably high as to prohibit a lawful business, the statement of the amount of the penalty alone may not ordinarily be sufficient to prove its invalidity as a matter of law, and it is Held, under the circumstances of this case, it would have been a question of fact for the jury had the defendant relied thereon as a defense and presented his evidence; and semble, the Court gave the defendant the benefit of setting up a bona fide belief in defense of the action, by suspending judgment and imposing a small fine, etc.

The defendant was convicted on an appeal from the mayor of the town of Hendersonville of auctioning goods without having obtained a license as required by the ordinance of said town. On appeal the solicitor sent a bill of indictment instead of trying on the warrant. Beyond an exception to evidence, the only question presented is the validity of the ordinance. Ordinance No. 76 of the town specifies among the privilege taxes levied upon the business, trades, and professions operated within the city of Hendersonville, that "Every person, firm, or corporation engaged in the business of selling any kind of merchandise, at auction, within the corporate limits of the city of Hendersonville, whether said business is conducted within or without buildings, shall pay a license or privilege tax of $400," and requires that before offering to sell any goods at auction he shall obtain from the treasurer of the city a license for one year, which shall be revocable by the commissioners, for good cause shown, with provision that the treasurer before issuing the license shall make diligent inquiry as to the character, reputation, and business methods of the applicant, and that if the treasurer shall refuse to grant the license, the applicant shall have the right to lay his application before the mayor and board of commissioners, and if they shall refuse to order license to issue, the applicant may appeal to the resident judge of the district, and if he shall refuse, then the applicant may have his petition passed upon by a jury in the Superior Court, with further provision that the ordinance shall not apply to judicial sales, or sales to wind up estates, or to sales conducted by a citizen, not regularly engaged in auctioneering, to dispose of household goods, or other goods and animals, such sales not to last beyond one day in six months.

The legislative authority under which the ordinance was enacted is sec. 32, ch. 352, Pr. Laws, 1913, and is as follows: "The city shall have power to license, tax, and regulate merchants, commission merchants, hotels, inns, boarding-houses, restaurants, markets, brokers, money brokers, auctioneers and auction houses, and stores or shops where the principal business is selling goods by auction, itinerant merchants, or peddlers, pawnbrokers, junk dealers, and junk-shops, dealers in secondhand goods and merchandise of any kind, and all other business or trades or occupation as may be the proper subject of police tax or license regulation; and may pass appropriate ordinances with appropriate penalties for the enforcement or collection of such tax, license, or regulation."

From the verdict and judgment the defendant appealed.

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 nonsuit. 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 its 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 discrimination, for the license tax is on the business. S. v. Kirkpatrick, post, 747.

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 auction 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.

STATE v. RAZOOK