Raleigh Mobile Home Sales, Inc. v. Tomlinson
172 S.E.2d 276
N.C. Ct. App.
1970
Check Treatment
PARKER, J.

In Kresge Co. v. Tomlinson, 275 N.C. 1, 165 S.E. 2d 236, our Supreme Court sustained the Raleigh Sunday Ordinance here in question against the attack that it was unconstitutional as violative of the First Amendment to the United States Constitution. Plaintiff appellant here attacks the ordinance as unconstitutional on the ground that, as enforced against it, the ordinance is discriminatory because its application does not affect equally all persons in the same class and engaged in similar operations as plaintiff, and on the ground that the classifications in the ordinance bear no reasonable relationship to the public health, welfare, safety and morals of the citizens of Raleigh. Plaintiff contends that for these reasons the ordinance violates the Fourteenth Amendment to the United States Constitution and Section 17 of Article I of the North Carolina Constitution.

An initial question presented by this appeal is whether plaintiff has standing to litigate the issue of the constitutionality of the ordinance on the grounds upon which it is here attacked. We hold that it does. “Notwithstanding the general rule that the constitutionality of a statute or ordinance purporting to create a criminal offense may not be challenged in an action to enjoin its enforcement, a well-established exception permits such action when injunctive relief is essential to the protection of property rights and the rights of persons against injuries otherwise irremediable.” Kresge *292Co. v. Tomlinson, supra. Plaintiff’s factual allegations, which are admitted on demurrer, are sufficient to support its conclusion that enforcement of the ordinance in the manner alleged would cause it to suffer “substantial direct economic injury and subject plaintiff to irreparable damage.” While the ordinance makes no express reference to “mobile homes” on the one hand, or to “conventional homes” or real estate on the other, plaintiff has alleged, and defendants’ demurrer admits, that the ordinance is in fact being enforced against plaintiff and other dealers in mobile homes by preventing the offering for sale or selling of mobile homes on Sunday, but that it is not being similarly enforced to prevent the offering for sale or selling of conventional homes and real estate on Sunday. On these factual allegations, which are admitted for purposes of ruling on the demurrer, plaintiff has standing to challenge the constitutionality of such enforcement of the ordinance on the grounds here asserted.

In this jurisdiction it is well established that a city ordinance regulating Sunday sales will be upheld as a valid exercise of the State’s police power, delegated to municipalities by G.S. 160-52 and G.S. 160-200(6), (7) and (10), if the classifications created by the ordinance are founded upon reasonable distinctions, affect equally all persons within a particular class, and bear a reasonable relationship to the public health and welfare sought to be promoted. Kresge v. Tomlinson, supra; Charles Stores v. Tucker, 263 N.C. 710, 140 S.E. 2d 370; Clark’s Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E. 2d 364; State v. Towery, 239 N.C. 274, 79 S.E. 2d 513; State v. McGee, 237 N.C. 633, 75 S.E. 2d 783; State v. Trantham, 230 N.C. 641, 55 S.E. 2d 198. Plaintiff contends that the Raleigh ordinance here involved creates classifications not founded upon reasonable distinctions and does not affect equally all persons similarly situated to the plaintiff. This contention is based on the argument that since potential purchasers of mobile homes are also potential purchasers of real estate and conventional homes, no reasonable distinction can be made to prohibit the sale of one type of home while permitting the sale of the other. This argument has been answered against plaintiff’s contention, insofar as this jurisdiction is concerned, by the holding in State v. Towery, supra. The plaintiff here, as the plaintiff in that case, “falls into error in undertaking to make competition as between classes the test rather than discrimination within a class.” So long as the classification made by the ordinance bears some reasonable relationship to the public welfare which the ordinance seeks to promote, the ordinance will not be rendered unconstitutional merely because persons in one class derive some incidental competitive advantage over those in another.

*293A conventional home is real property. A mobile home, at least until it becomes so affixed to land as to become a part thereof, is personal property. Certainly, a mobile home while in the hands of a dealer such as the plaintiff, remains personal property. Distinctions between real and personal property are so numerous and have existed for so long a time in our jurisprudence that there can be no doubt that they provide a legitimate basis for classification at least for many purposes. The classification of property into these two types, real and personal, rooted as it is in our history, could not be considered on its face as being arbitrary. The question remains whether the classification bears a reasonable relationship to the public purpose which the ordinance here in question seeks to promote. We hold that it does.

The public purpose of the ordinance, as stated in its preamble, is to provide for the due observance of Sunday as a day of rest, and to protect and promote the public health and the general welfare of the citizens. This purpose is sought to be attained by making it unlawful “for any person to sell, offer or expose for sale any goods, wares or merchandise in the city on Sunday.” (Sales of certain limited categories of goods are expressly permitted by the ordinance; these express exceptions were held not unreasonable, arbitrary, or discriminatory as applied to the plaintiffs in Kresge v. Tomlinson, supra, and plaintiff here makes no contention that they are unreasonable or discriminatory as applied to it.) Dealer sales of mobile homes, as sales of other “goods, wares or merchandise,” are customarily made from the dealer’s premises, where many of such homes are displayed in a small area for the purpose of attracting customers. By advertising and other means the dealer in mobile homes, as the dealer in any other merchandise, attempts to attract to his premises as many customers as possible. When open for business, the dealer must provide a sufficient number of salesmen and other employees to service his customers. This concentration of employees and customers for purpose of engaging in commercial transactions at a single location certainly detracts from “the due observance of Sunday as a day of rest.” On the other hand, sales and display for sale of conventional homes, which by their nature are scattered over a wide area, do not create the high concentration of would-be sellers and potential buyers. We find the classification in the ordinance here attacked by plaintiff sufficiently relevant to the objectives of the ordinance to meet the test of reasonableness. The demurrer to the complaint was properly sustained.

Affirmed.

Mallabd, C.J., and Britt, J., concur.