State v. McGee

• Decision Date: 06 May 1953
• Docket Number: No. 508,508
• Citation: 75 S.E.2d 783,237 N.C. 633
• Parties: STATE, v. McGEE.
• Court: North Carolina Supreme Court

Page 783

75 S.E.2d 783

237 N.C. 633

STATE, v. McGEE.

No. 508

Supreme Court of North Carolina.

May 6, 1953

Richard M. Welling, Welling & Welling, and Maurice A. Weinstein, Charlotte, for defendant-appellant.

Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., and Gerald F. White, Member of Staff, Raleigh, for the State.

DENNY, Justice.

The right of a municipality to enact and enforce ordinances relative to the observance of Sunday must be delegated, if it exists, by the Legislature. Municipal corporations have no inherent police powers and can exercise only those conferred by statute. Kass v. Hedgepeth, 226 N.C. 405, 38 S.E.2d 164; Rhodes, Inc. v. City of Raleigh, 217 N.C. 627, 9 S.E.2d 389, 130 A.L.R. 311; State v. Dannenbergt, 150 N.C. 799, 63 S.E. 946; State v. Ray, 131 N.C. 814, 42 S.E. 960, 60 L.R.A. 634; McQuillin, Municipal Corporations, Third Edition, Volume 6, Section 24.189, page 768, et seq. It is well settled, in view of the increasing scope of municipal power for the benefit of the public that the police power is as extensive as may be required for the protection of the public health, safety, morals and general welfare of the people. Turner v. City of New Bern, 187 NB.C. 541, 122 S.E. 469, citing Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260, and Bacon v. Walker, 204 U.S. 311, 27 S.Ct. 289, 51 L.Ed. 499. Likewise, in Moore v. City of Greensboro, 191 N.C. 592, 132 S.E. 565, this Court said: 'The enforcement of police regulations is a governmental function * * *, and it has been said that upon the exercise of this power depend the life, safety, health, morals, and the 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, 21 L.Ed. 394.'

The power to enact ordinances requiring the observance of Sunday has been delegated to municipalities of the State by G.S. §§ 160-52, 160-200(6)(7)(10); and in addition to these general powers granted to all municipalities of the State, the Charter of the City of Charlotte, being Chapter 366 of the Public-Local Laws of 1939, provides in section 32, that, 'In addition to the powers now or hereafter granted to municipalities under the General Laws of the State of North Carolina, the City of Charlotte shall have and retain those express powers granted to it by Section forty-eight and the subsections thereof of Chapter three hundred forty-two of the Private Laws of nineteen hundred seven which, together with certain other additional powers hereby granted to said city, are as follows: * * (13) To pass ordinances for the due observance of Sunday and for maintenance of order in the vicinity of churches and schools.'

The defendant contends, however, that the powers granted in the above statutes to enact and enforce the observance of Sunday have been withdrawn from all municipalities in the State by the repeal of G.S. § 103-1, by Chapter 73 of the Session Laws of 1951. Section 1 of this act is in the following language: 'G.S. 103-1 is hereby repealed in its entirety.' Section 2 of the act reads as follows: 'All laws and clauses of laws in conflict with this Act are hereby repealed.' It is contended that since G.S. § 160-52 provides that the governing body of a municipality 'shall have power to make ordinances, rules and regulations for the better government of the town, not inconsistent with this chapter and the law of the land (italics ours), as they may deem necessary; and may enforce them by imposing penalties on such as violate them; and may compel the performance of the duties imposed upon others, by suitable penalties', the repeal of G.S. § 103-1 makes any and all ordinances with respect to the observance of Sunday contrary to 'the law of the land.' In other words, the defendant insists that by the repeal of G.S. § 103-1, which was originally adopted in 1741, forbidding work in ordinary callings on Sunday, the State established a new policy with respect to Sunday labor and the conduct of business enterprises on that day.

It should be kept in mind that a violation of G.S. § 103-1, while it was in force, did not constitute an indictable offense but made the violator subject to a pecuniary fine or penalty, recoverable by summary proceeding before a justice of the peace. State v. Williams, 26 N.C. 400; State v. Brooksbank, 28 N.C. 73; Rodman v. Robinson, 134 N.C. 503, 47 S.E. 19, 65 L.R.A. 682, 101 Am.St.Rep. 877. Moreover, while this statute was in effect it was held not to be in conflict with ordinances enacted by municipalities requiring the observance of Sunday. State v. Medlin, 170 N.C. 682, 86 S.E. 597; State v. Davis, 171 N.C. 809, 89 S.E. 40.

Ruffin, C.J., in the case of State v. Williams, supra, in pointing out that a violation of the Act of 1741, subsequently codified as G.S. § 103-1, did not constitute an indictable offense, made this observation: 'The Legislature has hitherto thought the penalties given in the Act of 1741, sustained by public sentiment, adequate securities for the decent observance of the day. The event has, upon the whole, justified that opinion. * * * For even the few persons whose own principles, as moral and religious persons, might not have restrained them from the profanation of the day have been restrained by a willingness to obey the law as enacted in the statute of 1741, or by a just respect for the opinions and feelings of their fellow-citizens, to whom, as a body, secular labor on Sunday is a scandal and offense.' This statute had been in effect for 103 years when Chief Justice Ruffin made his observation. However, 107 years later it had become apparent that the statute was no longer effective as a deterrent to the profanation of the Sabbath. In fact for many years prior to its repeal it had been almost completely ignored. But its repeal in no sense should be construed as a legislative intent to place the stamp of approval upon the profanation of the Sabbath. To the contrary, in addition to the ineffectiveness of the act, its repeal may have been motivated by the fact that the more effective method of enforcing measures for the observance of Sunday is to make the violation thereof an indictable offense. And the fact that the Legislature has passed no state-wide act on this subject since the repeal of the 1741 Act, G.S. § 103-1, does not impair the police powers heretofore granted to municipalities to adopt ordinances requiring observance of Sunday. For, after all, the need for regulation in this respect is usually within areas embraced within the corporate limits of our towns and cities, rather than in the rural areas of the State.

Therefore, we hold that neither the repeal of G.S. § 103-1 nor the provision with respect to the repeal of all laws and clauses of laws in conflict therewith, have the effect of repealing police powers granted to municipalities by G.S. §§ 160-52 and 160-200(6)(7)(10), and to the City of Charlotte in its Charter.

Municipal ordinances prohibiting the pursuit of all occupations generally on Sunday, except those of necessity or charity, have been uniformly held constitutional in this jurisdiction. State v. Weddington, 188 N C. 643, 125 S.E. 257, 37 A.L.R. 573; State v. Burbage, 172 N.C. 876, 89 S.E. 795; State v. Davis, supra; State v. Medlin, supra. This view seems to be in accord with the decisions generally throughout this country. Hennington v. State of Georgia, 163 U.S. 299, 16 S.Ct. 1086, 41 L.Ed. 166; Petit v. State of Minn., 177 U.S. 164, 20 S.Ct. 666, 44 L.Ed. 716; Rosenbaum v. City & County of Denver, 102 Colo. 530, 81 P.2d 760; State v. Cranston, 59 Idaho 561, 85 P.2d 682; City of Harlan v. Scott, 290 Ky. 585, 162 S.W.2d 8; Ex parte Johnson, 77 Okl.Cr. 360, 141 P.2d 599; Broadbent v. Gibson, 105 Utah 53, 140 P.2d 939; Ex parte Johnson, 20 Okl.Cr. 66, 201 P. 533; Komen v. City of St. Louis, 316 Mo. 9, 289 S.W. 838; Annotation 29 A.L.R. 402; McQuillin, Municipal Corporations, Third Edition, Volume 6, Section 24.188, page 767; 50 Am.Jur., Sundays & Holidays, Section 9, page 808.

Consequently, we hold that the ordinance of the City of Charlotte, now underattack, is not invalid for lack of power in its governing body to enact or enforce any ordinance requiring the observance of Sunday.

The second reason assigned upon which the defendant challenges the validity of the ordinance is on the ground that it is arbitrary, unreasonable, and discriminatory; that it deprives him of his rights, liberties, freedoms and property without due process of law; and denies him the equal protection of the law; all in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States, and Article I, section 17, of the Constitution of this State.

It is a fundamental rule that the governing body of a municipality, clothed with power to enact and enforce ordinances for the observance of Sunday, 'is vested with discretion in determining the kinds of pursuits, occupations, or businesses to be included or excluded, and its determination will not be interfered with by the courts provided the classification and discrimination made are founded upon reasonable distinctions and have some reasonable relation to the public peace, welfare, and safety.' 50 Am.Jur., Sundays & Holidays, section 11, page 810.

Barnhill, J., in speaking for this Court in State v. Trantham, 230 N.C. 641, 55 S.E.2d 198, 200, said: 'Legislative bodies may distinguish, select, and classify objects of legislation. It suffices if the classification is practical. Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 18 S.Ct. 594, 42 L.Ed. 1037; State v. Davis [171 N.C. 809, 89 S.E. 40], supra. They may prescribe different regulations for different classes, and discrimination as between classes is not such as to invalidate the legislative enactment. Smith v. Wilkins, 164 N.C. 135, 80 S.E. 168. The very idea of classification is inequality, so that inequality in no...