State v. Bishop

Seawell, J.

The constitutional questions found in the record are not brought forward in the appellant’s brief or argued orally. The same questions were raised in the companion case, S. v. Whitaker, et al., ante, 352, and are there discussed.

The defendant relies upon the theory that the statute under which he is indicted does not make the acts which it forbids or commands violations of the criminal law, since it does not declare them so or provide a punishment. It is suggested that the most it does is to provide, in Sec. 6, that a person deprived of employment in violation of Secs. 3, 4, -and 5, or either of them, may recover such damages as he may have sustained.

At the Common Law, which, by virtue of the statute G. .S., 4-1, is in! force in this State; and, with respect to the point presented remains unchanged, when a statute, in the interest of the public, commands an act to be done or forbids an act, and no penalty is expressly provided for *374 its nonobservance or breach, the offending person may be punished as for a misdemeanor. This rule, as it obtains in this jurisdiction, is correctly stated in 22 C. J. S., p. 77, S. 25.

“However, on the other hand, it is held that where a statute prohibits any matter of public grievance or commands a matter of public convenience, although no penalty is prescribed for disobeying its prohibitions and commands, an indictment will be sustained and the offense punished by a fine; and if the Legislature denounces an act as a misdemeanor, but fixed no punishment, the Court may fix the punishment within the limits of punishment for misdemeanors.”

S. v. Addington, 121 N. C., 538 , 27 S. E., 938 ;

S. v. Bloodworth, 94 N. C., 918 ;

S. v. Brown, 221 N. C., 301 , 20 S. E. (2d), 286 .

S. v. Addington, supra, is explanatory and declaratory of the statutory construction obtaining here:

“Section 8 provides that • 'Any violation of this Act, either by seller or purchaser, shall be fined not less than $20 nor more than $40 for each offense, at the discretion of the court.’ This section, the only one providing any penalty, being limited to the 'seller or purchaser,’ can apply only to section 1. Therefore, section 6 is left without any penalty, so far as this act is concerned, but, being a matter of public grievance expressly forbidden by statute, it becomes a misdemeanor, as at common law punishable by indictment. Archbold Crim. Law, 2 Hawk., ch. 25, sec. 4;

S. v. Parker, 91 N. C., 650 ;

S. v. Bloodworth, 94 N. C., 918 . As its punishment is, therefore, not limited to a fine of $50 or imprisonment for thirty days, it is not within the jurisdiction of a justice of the peace. Const, of N. C., Art. IV, sec. 27; Code, sec. 892.”

And in S. v. Bloodworth, supra, where a similar contention was made by the appellant, it is said:

“It was contended, that inasmuch as the Legislature had not declared a violation of Sec. 2799 to be an indictable offense, it is not a criminal offense to violate its provisions. But this is a mistake. In S. v. Parker, 91 N. C., 650 , the Court held, 'if a statute prohibited a matter of public grievance, or commanded a matter of public convenience, all acts or omissions contrary to the prohibition or command of the statute, being misdemeanors at common law, are punishable by indictment, if the statute specifies no other mode of proceeding,’ citing for the doctrine Arch. Or. Law, 2; 2 Hawk., Ch. 25, Sec. 4. But when the Statute mentions a particular mode of proceeding, as when it imposes a penalty for its violation, and *375 says nothing more, that proceeding excludes that by indictment.

S. v. Snuggs, 85 N. C., 541 .”

There can be no question that the statute under review has for its main purpose the promotion of the public interest, deals with public policy, and is intended to promote the welfare of the whole public rather than sow the seeds of private litigation. The fact that it incidentally provides for the redress of private injuries does not deprive it of that character.

“Section 1. The right to live includes the right to work. The exercise of the right to work must be protected and maintained free from undue restraints and coercion. It is hereby declared to be the public policy of North Carolina that the right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization or association.”

It is not a mere fulmination. It is aimed at a practice which, to the legislative mind, was detrimental to the public welfare, and intends that nobody within its jurisdiction shall be compelled to pay unwilling tribute to any organization or union whatsoever before being permitted to work for a living in the most ordinary occupation in life. In this character it must stand or fall; and it is well within the rule of the cited cases.

Defendant’s exceptions, as above set out, do not disclose merit, and his several motions were properly overruled.

The constitutional questions presented in the record were argued in S. v. Whitaker, et al., ante, 352, and will be found there discussed.

We find No error.