State v. SmithState v. Smith
- Reporters:
- , ,
- Before:
- Shaep
Defendant is
“The defendant having pleaded guilty, his appeal could not call in question the facts charged, nor the regularity and correctness in form of the warrant. i:’ * * The appeal could only bring up for review the question whether the facts charged, and of which the defendant admitted himself to have been guilty, constitute an offense punishable under the laws and constitution.”
Defendant’s first challenge to the resolution is that its source, Sess. Laws of 1953, ch. 1071, § 1(3), as amended by Sess. Laws of 1961, ch. 943, § 1%(3), is a local act rеgulating trade and is therefore void under
Both the enactments in question here apply only to Forsyth County and are clеarly local acts.
McIntyre v. Clarkson,
254 N.C. 510, 119 S.E. 2d 888. When they authorize the Forsyth County Board of Commissioners to regulate public pool rooms, billiard parlors, and dance halls,
Ch. 1060, §§ 1• — -V/z, Sess. Laws of 1963, codified as G.S. 153-9(55), provides:
“The boards of commissioners of the several counties have power: ® * (55) In that portion of the county, or any township of the county, lying outside the limits of any incorporated city or town, ... to supervise, regulate, or suppress or prohibit in the interest of public morals, public recreations, amusements, and entertainments; to define, prohibit, abate, or suppress all things detrimental to the health, morals, comfort, safety, convenience and welfare of the people including but not limited to the regulation and prohibition of the sale of goods, wares and merchandise on Sunday. . . (Italics ours.)
In
Surplus Co. v. Pleasants,
264 N.C. 650, 142 S.E. 2d 697, we held that G.S. 153-9 (55), insofar as it purported to authorize only 52 of the 100 counties to regulate and prohibit
the sale of goods, wares, and merchandise on Sunday,
was a local act regulating trade and thus a violation of
When enacted by cities and towns under
general
laws, Sunday-observance ordinances which are reasonable and do not discriminate within a class of competitors similarly situated have been upheld as a valid exercise of delеgated police power.
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. All such ordinances, when they proscribe buying and selling, whether it be, say, tangible merchandise or a ticket to an amusement or a sporting event, regulate trade under the broad definition of trade which has been adopted by this Court. Since, however, these city ordinances are passed under general laws, G.S. 160-52 and G.S. 160-200(6), (7), and (10), with reference to them we have no conflict between the exеrcise of the police power and
When a county or a city attempts to pass, under a local grant of police power, a Sunday-observance ordinance whose only effect is to regulate trade, the legislation must yield to
Although the power “to define, prohibit, abate, or suppress all things detrimental to the. hеalth, morals, comfort, safety, convenience and wel
fare of the people” granted in G.S. 153-9(55) survived the excision by
Surplus Co. v. Pleasants, supra,
of the next words,
“including but not limited to the regulation and prohibition of the sale of goods, wares and merchandise on Sunday,”
yet that language does not empower the 52 counties to which the statute applies to enact legislation whose effect on trade is not merely incidental. The grant of police рower in G.S. 153-9 (55) survives to the extent it violates no constitutional prohibition. The Forsyth County resolution is aimed at a species of activity which is entirely commercial; so it may not be sustained under G.S. 153-9(55).
The resolution here would, however, have to fail in any event under defendant’s second challenge to its constitutionality. The classification of night clubs into (1) those “located within 300 yards of the property on which is located any public
For these reasons -the resolution denies substantive due process.
“ ‘Due process’ has a dual significance, as it pertains to procedure and substantive law. As to procedure it means ‘notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nаture of the case before a competent and impartial tribunal having jurisdiction of the cause.’ 12 Am. Jur. 267, § 573; 16 C.J.S., Constitutional Law, § 569, p. 1156. In substantive law, due process may be characterized as a standard of reasоnableness, and as such it is a limitation upon the exercise of the police power. 6 R.C.L. 433-446; 11 Am. Jur. 998, 1073-1081; 16 C.J.S., Constitutional Law, § 569, p. 1156.” Skinner v. State, 189 Okla. 235, 238, 115 P. 2d 123, 126, reversed on other grounds 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655, conformed to 195 Okla. 106, 155 P. 2d 715.
See Surplus Store, Inc. v. Hunter, 257 N.C. 206, 211, 125 S.E. 2d 764, 767.
Incidentally, it is noted that in the resolution the 300 yards is to be measured not from the church building itself, but from the prоperty line on which the building is located. A church able to purchase adjoining property might, at will, put its line within 300 yards of the club. This, of course, is not the situation here, i.e., not the particular application of the resolution. Chicot County Dist. v. Bank, 308 U.S. 371, 377, 60 S. Ct. 317, 320, 84 L. Ed. 329, 334.
Nothing in this record suggests that defendant’s night club is now a nuisance which disturbs public worship. Indeed, the evidence is that defendant has never operated his night club during daylight hours on Sunday. If his business should become a nuisance, there is plenty of law to abate it. Gen. Stats., ch. 19; see Andrews v. Andrews, 242 N.C. 382, 88 S.E. 2d 88; Morgan v. Oil Co., 238 N.C. 185, 77 S.E. 2d 682.
The resolution under which defendant was sentenced being void, the judgment of the court below is
Reversed.