State v. Smith
143 S.E.2d 293
N.C.
1965
Check Treatment
Shaep, J.

Defendant is not precluded by his plea of nolo contendere from prosecuting this appeal, United States v. Bradford, 160 F. 2d 729 (2d Cir.), as he would not have been by a plea of guilty. For the purpose of this case only, that plea has the effect of a plea of guilty. Fox v. Scheidt, 241 N.C. 31, 84 S.E. 2d 259; 22 C.J.S., Criminal Law § 425(4) (1961). In State v. Warren, 113 N.C. 683, 684, 18 S.E. 498, 498, it is said:

“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 *177 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 regulating tradе and is therefore void under N. C. Const., Art. II, § 29, which prohibits the General Assembly from passing any local, private, or special act regulating, inter alia, trade. The Attorney General contends, on the contrary, that the acts in question are not within the prohibition of N. C. Const., Art. II, § 29, but are a legitimate legislative exercise of the police power. He relies upon State v. Chestnutt, 241 N.C. 401, 85 S.E. 2d 297, in which it was held that a local act prohibiting all motor-vehicle racing on Sunday in Wake County did not violate N. C. Const., Art. II, § 29, but was a proper exercise of the State police power by the legislature. See Note, 36 N.C.L. Rev. 537. Speaking through Bobbitt, J., the Court said, however, that, “were the statute directed solely against labor, e.g., compensated employment, or trade, e. g., business ventures, for profit, in relаtion to the conduct of motor vehicle races on Sunday in Wake County, the question posed would be serious indeed.” State v. Chestnutt, supra at 403, 85 S.E. 2d at 299.

Both the enactments in question here apply only ‍​​​‌​​‌‌​​‌​‌‌​‌‌​‌​​​​​‌​‌​‌‌​​‌​‌​‌​​‌​‌‌​‌‌‌​‍to Forsyth County and are clearly locаl 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, they purport to regulate trade, for, under the previous decisions of this Court, trade “within the meaning of Article II, Section 29 of our Constitution, includes any employment or business embarked in for gain or profit.” Speedway, Inc. v. Clayton, 247 N.C. 528, 533, 101 S.E. 2d 406, 410; accord, State v. Dixon, 215 N.C. 161, 1 S.E. 2d 521; State v. Worth, 116 N.C. 1007, 21 S.E. 204. When, to this enumeration of pool rooms, billiard parlors, and dance halls, the General Assembly added “and any club where persons may associate for a common purpose,” Sess. Laws of 1961, ch. 943, § 1%(3), did it mean only a club operated as a business venture, “a commercial establishment serving food . . . and oftеn featuring music, dancing and other forms of entertainment: nightclub,” or did it also mean to include “an association of persons for social and recreational purposes or for the promotion of some common object (as literature, science, political activity) usu. jointly supported and meeting periodically, membership in social clubs usu. being confirmed by ballot and carrying the privilege of use of the сlub property”? These and similar definitions of club are to be found in Webster’s New International Dictionary (3d Ed. 1961). If, instead of club, the *178 General Assembly had used the term night club, a designation which nowadays we readily understand to mean only a commercial enterprise, no оne would question its meaning. In the instant case we entertain no doubt whatever that in Sess. Laws of 1953, ch. 1071, § 1(3), as amended by Sess. Laws of 1961, ch. 943, § 1%(3), the legislature used the word club to mean only one having a business character. The doctrine of ejusdem generis is applicable. It is conceivable that the members of a chess club, a discussion group reading “The Great Books,” a chamber-music group, or even a bridge club might become so enthralled by their aсtivities that for their own protection someone should impose a curfew upon them, but we cannot imagine that either the General Assembly or the County Commissioners of Forsyth would attempt to do it. Ch. 1071, Sess. Laws of 1953, as amеnded by Sess. Laws of 1961, ch. 943, is therefore a local act purporting to authorize Forsyth County to regulate trade and is violative of N. C. Const., Art. II, § 29. It follows that the resolution cannot be sustained under this void grant of power. Can it be sustained under the general grant of police powers in G.S. 153-9(55) to 52 counties, including Forsyth? If in an ordinance or a resolution there is a misrecital of the source of power by which it is passed, it is still valid if there is in fact authоrity for its enactment. 62 C.J.S., Municipal Corporations § 414(c) (1949); 5 McQuillan, Municipal Corporations § 16.14 (1949 Ed.).

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 N. C. Const., Art. II, § 29. The Raleigh ordinance involved, enacted pursuant to G.S. 153-9 (55) and purporting to make it unlawful to conduct or engage in or carry on within the city on Sunday any business except certain specified types thereof, was, therefore, also void. It does *179 not necessarily follow, however, that the entire section is unconstitutional. “ ‘A statute may be valid in part and invalid in part. If the parts are independеnt, or separable, but not otherwise, the invalid part may be rejected and the valid part may stand, provided it is complete in it: self and capable of enforcement.’ 82 C.J.S., Statutes § 92. Our decisions are in accord.” Constantian v. Anson County, 244 N.C. 221, 228, 93 S.E. 2d 163, 168.

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 delegated pоlice 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 exercise of the pоlice power and N. C. Const., Art. II, § 29. State v. McGee, 237 N.C. 633, 75 S.E. 2d 783. But the General Assembly has not by general law delegated to ‍​​​‌​​‌‌​​‌​‌‌​‌‌​‌​​​​​‌​‌​‌‌​​‌​‌​‌​​‌​‌‌​‌‌‌​‍counties the same authority it has to cities and towns. Surplus Co. v. Pleasants, supra. An act is not invalid merely because it is local unless it violates some cоnstitutional provision. Speedway, Inc. v. Clayton, supra. N. C. Const., Art. II, § 29, does not forbid local acts passed in the exercise of delegated police power if they do not relate to the matters therein prohibited. State v. Chestnutt, supra. See State v. Dixon, supra at 177, 1 S.E. 2d at 527 (dissent). “Within extremely broad limits the state legislatures may control practices in the business-labor field, as long as specific constitutional prohibitions are not violated. . . .” 16 C.J.S., Constitutional Law § 188 (1956).

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 N. C. Const., Art. II, § 29, whether the purported authority to pass it be specifiсally conferred in the act or not. Surplus Co. v. Pleasants, supra; Treasure City v. Clark, 261 N.C. 130, 134 S.E. 2d 97. If the ordinance prohibits all of a certain type of activity on Sunday — as, e.g., motor-vehicle racing, which might or might not be commercial —, its exercise of police power does not conflict with N. C. Const., Art. II, § 29, for its regulation of trade is merely incidental, or consequential. State v. Chestnutt, supra.

Although the power “to define, prohibit, abate, or suppress all things detrimental to the. health, morals, comfort, safеty, convenience and wel *180 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 power in G.S. 153-9 (55) survives to the extent it violatеs 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). N. C. Const., Art. II, § 29; State v. Chestnutt, supra.

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 school or church building,” and (2) all others, for the purpose of closing the former from 2:00 a.m. until 12:00 midnight on Sunday, is both unreasonable and discriminatory. Since schools are not in session at all between 2:00 a.m. and 12:00 midnight on Sunday, the apparent end sought by the resolution is the kеeping of quiet in the vicinity of church services on Sunday. This is a legitimate aim of the police power, yet the means here employed to achieve that end exceed what is reasonably necessary to accomplish such an end. Church services are not held during the wee hours of Sunday morning. From 2:00 a.m. until 7:00 a.m., at the earliest, churches are not open. No sound reason appears why during these hours any night clubs should bе closed lest it disturb public worship. In this aspect the resolution is unreasonable in its means employed. Nor does reason appear why during these hours a classification on the basis of 300 yards or any other distanсe is necessary. Herein the resolution is discriminatory.

For these reasons -the resolution denies substantive due process. U. S. Const., Amend. XIV, § 1; N. C. Const., Art. I, § 17. See Winston-Salem v. R. R., 248 N.C. 637, 105 S.E. 2d 37; State v. Ballance, 229 N.C. 764, 51 S.E. 2d 731.

“ ‘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 nature of the case before a cоmpetent 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 reasonableness, and as such it is a limitation upon the еxercise 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. *181 235, 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 property line on which the building ‍​​​‌​​‌‌​​‌​‌‌​‌‌​‌​​​​​‌​‌​‌‌​​‌​‌​‌​​‌​‌‌​‌‌‌​‍is located. A church ablе 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.