State v. . Burbage

Sep 13, 1916
Versions:172 N.C. 876
89 S.E. 795
1916 N.C. LEXIS 437
*878 IIoke, J".,

after stating the case: Chapter 73, Eevisal, sec. 2923, empowers town commissioners to pass ordinances, rules and regulations for the better government of the town, not inconsistent with the provisions of the act and the law of the land, and to enforce such ordinances, etc., by appropriate penalties. In construing this and similar legislation elsewhere, the courts have very generally held that the established municipal authorities may enact such ordinances as are pro-motive of the peace and good order of the town, the limitation being that the regulations may not be unreasonable or unduly discriminative nor manifestly oppressive and in “derogation of common right.”

It is against the public policy of the State that one should pursue his ordinary business calling on Sunday, and, where this is the case, it is very generally understood not only that ordinary business pursuits may be regulated, but altogether prohibited on Sunday. S. v. Medlin, 170 N. C., 682. This case also holds that an ordinance of this kind is not rendered invalid, as unduly discriminative, by reason of the exception in favor of drug stores, nor on account of section 2836, Revisal, forbidding work “in ordinary callings oh Sunday under penalty of $1,” and we are unable to see that a regulation of this kind is either unreasonable or oppressive or in derogation of common right. Evidently framed to prevent people from gathering at business places in the town at a time when business there has been lawfully prohibited, it would seem to be a most reasonable regulation in promotion of the public policy which the ordinance is designed to enforce, and, in certain localities and conditions, it is probably the only way in which the regulation could be made at all effective. The ruling of his Honor finds full support, we think, in the case already cited, S. v. Medlin, supra, and in many other well considered eases on the subject here and in other jurisdictions. S. v. Austin, 114 N. C., 855; Hellen v. Noe, 25 N. C., 493; Barbier v. Connelly, 113 U. S., 27; Soon Hing v. Crowley, 113 U. S., 703; S. v. Freeman, 38 N. H., 426; St. Louis v. Cafferata, 24 Mo., 44; Dillon Mun. Corp. (5 Ed.), secs. 589 et seq.

We were referred by counsel to S. v. Thomas, 118 N. C., 1221, as an authority for defendant on the question chiefly presented. That case involved the validity of an ordinance prohibiting a proprietor from going into his own store within certain hours, a thing he might be called on to do in the legitimate exercise of the rights of private ownership and where the act would many times have no necessary or natural relation to the maintenance of the peace and order of the town; a case readily distinguished from the present one where the ordinancé is clearly promotive of the established public policy in preventing the carrying' *879 on of ordinary business on Sunday, and, as heretofore stated, “well calculated to render such policy efficient.”

There is no error, and the judgment below will be affirmed.

Affirmed.

WalKeR and AlleN, JJ., dissent.