In S. v. Cainan, 94 N.C. 880, this Court held valid a town ordinance which forbade "loud and boisterous cursing and swearing in any street, house or elsewhere in the city." This ruling was followed and affirmed inS. v. Debnam, 98 N.C. 712. These decisions are placed upon the ground that such conduct does not amount to a "nuisance" (because not in the presence and to the annoyance of divers persons), which would be punishable under the State's jurisdiction, *Page 515
but is "disorderly conduct," which the town might well (741) forbid and punish. In S. v. Warren, 113 N.C. 683, this Court held constitutional an act forbidding the use of "profane language that disturbed the peace" in a certain locality. In the present case the ordinance simply forbids the "use of profane language in the town." It does not forbid it when "loud and boisterous," which would be disorderly conduct, as in the first two cases above cited, nor when it "disturbed the public peace," as in the last-named case. As the ordinance stands, it would make punishable profane language used, perhaps thoughtlessly, in the utmost privacy, when neither loud and boisterous nor calculated to disturb the peace. Indeed, the special verdict finds that the language used was not loud and boisterous, nor obscene, nor calculated to disturb the peace. We do not think the powers granted this corporation, upon a fair construction, were intended to confer jurisdiction to that extraordinary extent, and we must hold the ordinance invalid. We forbear to pass upon the question whether the Legislature could, if it chose, confer upon the town authority to pass such an ordinance, as the question is not before us.
No error.
Cited: S. v. Sherrard, 117 N.C. 719; S. v. Clay, 118 N.C. 1236.
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