State v. . Vanhook

Nov 2, 1921
Versions:182 N.C. 831
109 S.E. 65
1921 N.C. LEXIS 348
Adams, J.

It is conceded that the police power, regarded as an attribute of government, is inherent in the states, and is not a grant derived from the written organic law. The difficulty of drawing the boundary line which divides the police power from the other functions of government has often been recognized, but Judge Cooley’s definition of the police power of a state has met the approval of many courts. He says that this expression “embraces the whole system of internal regulation, by which the state seeks not only to preserve the public order and to prevent offenses against the state, but also to establish for the inter *833 course of citizens with citizens those rules of good manners and good neighborhood which are calculated to prevent a conflict of right, and to insure to each the uninterrupted enjoyment of his. own so far as is reasonably consistent with a like enjoyment of rights by others.” The police power has been described as the law of necessity, and as the power of self-protection on the part of the community. 6 R. C. L., 186. Upon the proper exercise of this power depend the life, safety, health, morals, and comfort of the citizen, the enjoyment of private and social life, the beneficial use of property, and the security of social order. Slaughterhouse cases, 16 Wall., 62. In Pearsall v. R. R., 161 U. S., 666, it is said: “And so important is this power and so necessary to the public safety and health, that it cannot be bargained away by the Legislature, and hence it has been held that charters for purposes inconsistent with a due regard for the public health or public morals may be abrogated in the interests of a more enlightened public opinion.”

The legal right of the General Assembly, to delegate legislative power to municipal corporations is well settled, when the power granted is such as relates to the exercise of governmental functions of limited or local character, or to other legitimate and proper municipal purposes. S. v. Austin, 114 N. C., 857; S. v. Dudley, ante, 822.

Chapter 56 of the Consolidated Statutes is divided into three subchap-ters. The first deals with regulations which are independent of the act of 1917; the second, with the Municipal Corporation Act of 1917; and the third with the Municipal Finance Act. By sec. 2623 (7), in the first subchapter, a city or town is authorized to provide for the municipal government of its inhabitants in the manner required by law, and by sec. 2673, the commissioners are empowered to make ordinances, rules, and regulations for the better government of the town, not inconsistent with the law of the'land. By sec. 2786, which is in the second subchapter,’ the provisions of Art. 15 are made applicable to all cities and towns whether or not they have adopted the plan of government, and the powers therein granted are declared to be in addition to and not in substitution of the existing powers of cities and towns. Section 2787 provides that in addition to and coordinate with the power granted to cities in subchapter 1, and any acts affecting such cities, all cities shall have power “to license, prohibit, and regulate pool and billiard rooms and dance halls, and in the interest of public morals provide for the revocation of such licenses.” The ordinance in question was enacted in pursuance of this authority, and is clearly a valid exercise of the police power of the State. Instances of a similar exercise of the police power may be found' in ordinances which prohibit disorderly conduct, or abusive or indecent language, or the entrance of an unmarried minor *834 into a saloon, or tbe pursuit of one’s ordinary business on Sunday; or wbicb regulate tbe weighing of cotton, or tbe running at large of bird dogs during tbe closed season for quail, or vaccination for tbe public bealtb, or wbicb deal witb various other situations affecting tbe health, comfort, morals, and safety of tbe people. S. v. Sherrard, 117 N. C., 717; S. v. Earnhardt, 107 N. C., 789; S. v. Austin, 114 N. C., 855; S. v. Tyson, 111 N. C., 687; S. v. Hay, 126 N. C., 999; S. v. Blake, 157 N. C., 609; S. v. Burbage, 172 N. C., 876.

Tbe counsel for tbe defendant contends that tbe ordinance confers upon tbe board of aldermen unlimited discretion in granting or refusing license, that it prescribes no uniform rule by which the board shall be guided, and that tbe aldermen consequently pass upon each application “according to their own pleasure.” But tbe board is not clothed witb arbitrary or unlimited discretion. Whether a license shall be granted upon application is a matter within tbe limited legal discretion of tbe board. It is true that in tbe absence of abuse such discretion cannot be controlled by tbe courts, but tbe ordinance is not for that reason void. Brodnax v. Groom, 64 N. C., 244; Key v. Bd. of Education, 170 N. C., 125. Of course uniformity of operation upon all alike is essential, but this requirement is met by tbe express language of tbe ordinance.

In view of tbe evidence tending to show tbe “disturbing elements” in tbe defendant’s ball, tbe “fighting and cursing,” and tbe arrests that bad been made there, we must assume that due regard for tbe public welfare impelled tbe aldermen in tbe exercise of their limited legal discretion to refuse tbe license.

Tbe defendant’s counsel relies chiefly on S. v. Tenant, 110 N. C., 609. In that case it appears that tbe city of Asheville bad enacted tbe following ordinance: “That no person, firm, or corporation shall build or erect within tbe limits of tbe city any bouse or building of any kind or character, or otherwise add to, build upon, or generally improve or change any bouse or building, without having first applied to tbe aider-men and obtained a permission for such purpose.” This ordinance was held void on tbe ground that it was an unwarranted interference witb tbe ordinary incidents of ownership at tbe arbitrary will of tbe board of aldermen without valid reason, and that it bad no reasonable relation to tbe exercise of tbe police jtowers vested in tbe board for tbe well ordering of tbe city. This objection cannot avail tbe defendant in tbe ease before this Court. Brunswick-Balke Co. v. Mecklenburg, 181 N. C., 388.

No error.