State v. . Davis

May 31, 1916
Versions:171 N.C. 809
89 S.E. 40
1916 N.C. LEXIS 188
AlleN, J.

The question which is very fully discussed in the briefs and upon which his Honor rested his decision, that the two ordinances set out in the verdict, when considered together, operate as an unlawful discrimination between persons engaged in the same business, does not arise, as the first ordinance deals only with keepers of drug stores, and the second with the keepers of restaurants, cafés, and lunch stands.

These are distinct and easily severable occupations, and there is no finding that those engaged in them come in competition with each other.

The ordinance, however, relating to druggists is further attacked upon the ground that the town of Andrews is not authorized to pass Sunday ordinances, and also that the ordinance is within itself an unreasonable classification.

The charter of the town of Andrews specifically authorizes the board of aldermen “to make regulations to cause the due observance of Sunday” ; but if this were not sufficient, the Revisal, sec. 2923, gives power to cities and towns “to make ordinances, rules and regulations, for the better government of the town ... as they may deem best.”

This last statute was considered in S. v. Medlin, 170 N. C., 682, and in passing on an ordinance adopted by the town of Zebulon the Court *812 said: “This ordinance, wbicb prohibits keeping open stores and other places of business for the purpose of buying or selling, except ice, drugs and medicines, and permits the drug store to sell soft drinks and tobacco for a limited time in the morning and afternoon, as a convenience to public customs, is not an unreasonable exercise of the police power. Neither does it cover the same ground as Revisal, 2836. Such local regulations are within the powers conferred on town authorities in their exercise of the police power, and if not satisfactory to the community, such regulations will doubtless be changed at the instance of their constituents or by the election of a new board of commissioners. Public sentiment in this regard varies in different localities, and the power of making these local regulations is simply an exercise of ‘home rule,’ which is wisely vested in the town commissioners to conform to the sense of public decency and peace and order which is observed by compliance with the sentiments of their constituents.”

The ground on which Sunday laws are generally upheld is that the observance of Sunday is promotive of the moral and physical well-being of society, and that such statutes and ordinances are a valid exercise of the police power.

“Statutes prohibiting the pursuit of all occupations generally on Sunday have been uniformly held constitutional. Frolickstein v. Mobile, 40 Ala., 725; Scales v. State, 47 Ark., 476; Com. v. Has., 122 Mass., 40; Com. v. Wolf, 3 S. and R. (Pa.), 48; Specht v. Com., 8 Pa. St., 312; Society, etc., v. Com., 53 Pa. St., 125; Charleston v. Benjamin, 2 Strobh. L. (S. Car.), 508; Columbia v. Duke, 2 Strobh. L. (S. Car.), 530, note; Parker v. State, 16 Lea (Tenn.), 476. Where, however, the statute prohibits the following of certain occupations only, or, after a general prohibitory provision, excepts certain occupations and callings from the operation of the statute, the decisions are not always in accord. Such statutes have been attacked as class legislation, but in the greater number of instances have been sustained. Theisen v. McDavid, 34 Fla., 440; People v. Hagan (Supr. Ct. Spec. T.), 36 Misc. (N. Y.), 349; Nashville v. Linck, 12 Lea (Tenn.), 499. Thus statutes prohibiting barbering on Sunday have been held constitutional. People v. Bellet, 99 Mich., 151; People v. Havnor, 149 N. Y., 195; Ex. p. Northrup, 41 Oregon, 489. And statutes prohibiting the playing of baseball are valid. S. v. Powell, 58 Ohio St., 324; S. v. Goode, 5 Ohio Dec., 281, 5 Ohio N. P., 179. A statute prohibiting barbering under a heavier penalty than that applied to other prohibited occupations has been upheld on the ground that the tendency to violate the law by that particular occupation may be greater, and that it was, therefore, in the discretion of the Legislature to fix a greater penalty. Breyer v. State, 102 Tenn., 103. Similarly, statutes prohibiting the keeping open of any place of business and excepting from its operation certain occupations, such as hotels, boarding- *813 bouses, livery stables, retail drug stores, aud sueb manufacturing establishments as are necessarily kept in operation, are held not to be unconstitutional. Ex. p. Andrews, 18 Cal., 679; S. v. Sopher, 25 Utah. See, also, S. v. Nichols, 28 Wash., 628. These statutes may apply to the entire class which they purport to affect. Ex p. Northrup, 41 Oregon, 489.” S. v. Justus, 1 A. and E. Anno. Cases, 93.

In Soon Hing v. Crowley, 113 U. S., 703, a regulation which applied only to those engaged in the laundry business was sustained, and the Court said: “The specific regulation for. one kind of business, which may be necessary for the protection of the public, can never be a just ground for complaint because like restrictions are not imposed upon other business of a different kind. The discriminations which are open to' objection are those where persons engaged in the same business are subject to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can .be said to impair that equal right which all can claim in the enforcement of the laws.” .

The general question of the right of classification was very fully considered by this Court in S. v. Davis, 157 N. C., 648, and Smith v. Wilkins, 164 N. C., 135, and the doctrine was approved that the General Assembly or a municipal corporation has the power to classify the different occupations, provided the classification is not unreasonable and oppressive, and that usually the extent to which the power will be exercised is for the General Assembly or the governing body of the municipality.

We do not think the power has been exceeded in this instance, and the judgment of the Superior Court is therefore reversed.

Judgment should be entered against the defendant upon the special verdict.

Reversed.