Opinion
(June Term, 1864.)
1. One who has been licensed to retail spirits may lawfully employ an agent to conduct that business for him, although he leaves the country for an indefinite time, as, in this case, in the military service of the Confederate States for three years, or the war.
2. It seems he cannot assign his license.
INDICTMENT tried at Fall Term of BURKE, 1863, before Howard, J.
The defendant was indicted for selling spirituous liquors by the small measure without license. (See Rev. Code, ch. 34, s. 94, and ch. 79, s. 6.) He admitted retailing in November, 1862, and produced, in justification of his doing so, a license to retail from the sheriff of Burke to one W. C. Good, from February, 1862, to February, 1863, and a paper-writing from Good to himself in words and figures as follows, viz.:
Know all men by these presents, that I, W. C. Good, have employed J. C. McNeeley to act for me in my absence, and to manage my grocery store, and to retail spirituous liquors for me in the town of Morganton, and, if he prefers doing so, he may have the one-half of the profits, instead of the salary, I have promised him. Given under my hand and seal this 1 October, 1862. W. C. GOOD. [L. S.]
It was proved that at the date of this instrument Good was taken into the army as a conscript, where he has remained all the time since, and that the instrument was executed for the purpose of continuing his business in Morganton.
The court charged the jury that the business of retailing must be under the control and supervision of the person licensed, and that he had no right to delegate another to retail in his stead during such an absence as that of a soldier enlisted for three years or the war. (233) The defendant excepted to the instruction. Verdict of guilty, and judgment.
Winston, Sr., for the State.
No counsel for defendant.
The decision of this case depends upon the question whether the defendant, when he committed the act of retailing, was the assignee of W. C. Good, or was merely his agent or manager. If he were the assignee, we expressed the opinion arguendo in S. v. Gerhardt, 48 N.C. 178, that he could not sell spirituous liquors by the small measure under the license of his assignor, because his moral qualifications had not been examined into and approved by the county court, as required by law. We can see no reason why a licensed retailer may not have a clerk or agent to assist him in his business, he himself remaining liable for the acts and contracts of such clerk or agent, done or made within the scope of his employment. It is a matter of public notoriety that much of the trading with slaves is done in grocery and other stores, and the Rev. Code, ch. 34, sec. 90, evidently contemplates that the owners of such stores may have agents or managers, because it makes certain provisions in relation to them as such. The Keepers of groceries are frequently licensed retailers also, and we have never understood that they cannot have clerks, agents, or managers in the latter, as well as in their other business. W. C. Good had applied for and obtained a license to retail spirits in the town of Morganton for one year. He had paid the State for a valuable privilege, which he was clearly entitled to enjoy for the specified time, unless he should forfeit it by a misuser. Before the expiration of his time he was conscripted and carried off into the military service of his country. He could not longer enjoy his (234) privilege in person, and he could not assign it. Why could he not employ another person to manage the business for him? He would still remain responsible for the good conduct of his agent; and that, it seems to us, makes a difference between such a case and that of an assignee.
The instrument offered in evidence by the defendant showed clearly that he was acting only as agent, and not as assignee. If, indeed, the transaction between the parties was really intended as a sale of the privilege, instead of the appointment of an agent, then it was an attempted fraud, and afforded no protection to the defendant. But the case was not presented to the jury in that view, and the conviction cannot, therefore, be sustained on that ground.
Error.
Cited: S. v. Kittelle, 110 N.C. 565, 568, 588.