Smith v. Mecklenburg County, No. 90
| Decision Date | 15 March 1972 |
| Docket Number | No. 90 |
| Citation | 187 S.E.2d 67,280 N.C. 497 |
| Parties | Arthur SMITH and David P. Reule, On Behalf of Themselves and On Behalf of All Others Similarly Situated v. The COUNTY OF MECKLENBURG et al. |
| Court | North Carolina Supreme Court |
Bailey & Davis by Gary A. Davis, Charlotte, for plaintiff appellees.
Ruff, Perry, Bond, Cobb, Wade & McNair by James O. Cobb, Charlotte, for the County of Mecklenburg and Members of the Mecklenburg County Board of Elections, defendant appellants.
Ervin, Horack & McCartha by William E. Underwood, Jr., Charlotte, for Members of the Mecklenburg County Board of Alcoholic Control, defendant appellants.
Plaintiffs' status is solely that of 'citizens, taxpayers and qualified voters of the County of Mecklenburg.' In support of their motion to dismiss, appellants contended there was no evidence that implementation of the Mecklenburg Act would cause plaintiffs to suffer personal, direct and irreparable injury; hence, they contended, plaintiffs had no standing to test the constitutionality thereof in an action to enjoin its implementation. They cite decisions of this Court, including Fox v. Board of Commissioners of Durham, 244 N.C. 497, 500--501, 94 S.E.2d 482, 485--486 (1956), and Nicholson v. State Education Assistance Authority, 275 N.C. 439, 447--448, 168 S.E.2d 401, 405--407 (1969), as authority for their position. However, although contending the denial of their motion to dismiss was erroneous, appellants do not now press that contention. On the contrary, they urge this Court to pass upon the constitutionality of the Mecklenburg Act notwithstanding defects, if any, in respect of plaintiffs' standing to maintain the action.
The public interest impels us to decide without further delay whether the Mecklenburg Act is unconstitutional in whole or in part and to decide the legal significance, if any, of the election held on November 5, 1971. Hence, in accordance with appellants' present position, we have elected not to consider questions relating to plaintiffs' standing to maintain the action.
The Mecklenburg Act was ratified on June 21, 1971, when Article II, Section 29, of the Constitution of North Carolina, in pertinent part, provided:
The revised Constitution of North Carolina was adopted by a vote of the people in the general election held November 3, 1970, and became effective July 1, 1971. Article II, Section 24, in pertinent part, provides:
The quoted provisions of former Article II, Section 29, and of present Article II, Section 24, are identical in all material respects. Decisions cited below which refer directly to former Article II, Section 29, apply equally to present Article II, Section 24.
We hold, in accordance with plaintiff's contention, that the Mecklenburg Act is A local act regulating trade and therefore void as violative of former Article II, Section 29, and of present Article II, Section 24, of the Constitution of North Carolina.
We think it clear that the Mecklenburg Act is a local act when tested by criteria established by our decisions. Reference is made to a comprehensive and scholarly article, 'Local Legislation in the North Carolina General Assembly,' by Joseph S. Ferrell, 45 N.C.L.Rev. 340--423 (1967), in which the author discusses the decisions of this Court relating to Article II, Section 29, in the three periods characterized as follows: '1917--1938, the period of strict construction; 1939--1961, the period of reappraisal; and 1961 to the present, the period of McIntyre v. Clarkson.' Ferrell, Op. cit. at 361.
'A statute is either 'general' or 'local'; there is no middle ground.' High Point Surplus Co. v. Pleasants, Sheriff, 264 N.C. 650, 656, 142 S.E.2d 697, 702 (1965). Prior to McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888 (1961), 'local' was defined arbitrarily in terms of geography: if an act applied to fewer than fifty counties, it was local. In re Harris, 183 N.C. 633, 112 S.E. 425 (1922). Under that rule, the Mecklenburg Act would have been local because it applies solely to Mecklenburg County. In McIntyre, however, this Court amplified the definition of a 'local act' to mean: an act applying to fewer than all counties, in which the affected counties do not rationally differ from the excepted counties in relation to the purpose of the act.
Under the McIntyre rule, which was approved and applied in Treasure City of Fayetteville, Inc. v. Clark, 261 N.C. 130, 134 S.E.2d 97 (1964), and in High Point Surplus Co. v. Pleasants, Sheriff, supra, the Mecklenburg Act is unquestionably a Local act.
Restaurants, hotels, motels, and 'social establishments' are to be found in most counties of the State; municipally-operated auditoriums and convention or meeting centers are to be found in other counties than Mecklenburg. People who favor mixed beverages by the drink are to be fond throughout the State. A majority of the people in many counties have voted in favor of opening ABC stores in their counties, just as have the citizens of Mecklenburg County. These people stand on the same plane with those in Mecklenburg County. The same General Assembly that enacted the Mecklenburg Act also enacted a statute (Chapter 279, Session Laws of 1971) giving the people of Moore County the same right, upon petition signed by 15% Of the registered voters of that county; but no other citizens of the State other than those of Mecklenburg and Moore Counties have been given this right.
The Mecklenburg Act recites, in its statement of purpose in section 2, that 'control of alcoholic beverages is not susceptible to a uniform system of control throughout all counties of the State' and that '(i)n particular, Mecklenburg County . . . has the State's largest population' and '(t)he City of Charlotte serves as a major trading area for the 2 million people in a 75-mile radius.' We are unable to perceive in what way these features differentiate Mecklenburg County from other North Carolina counties with reference to the right of the citizens thereof to decide whether their county should have mixed beverages by the drink. We note that section 2 of the similar Moore Act, while also stating that 'control of alcoholic beverages is not susceptible to a uniform system of control throughout all counties of the State,' makes no mention of Moore County's unique features or of features it shares with Mecklenburg County. We further note that subsequent to the enactment of the Mecklenburg Act and the Moore Act, the same General Assembly enacted a comprehensive statute (Chapter 872, Session Laws of 1971, comprising G.S. Chapter 18A--1 to 18A--58, which superseded former G.S. Chapter 18) which, in G.S. § 18A--1, declares its purpose as follows: 'to establish A uniform system of control over the sale, purchase, transportation, manufacture, and possession of intoxicating liquors in North Carolina, and to provide administrative procedures to insure, as far as possible, the proper administration of this Chapter under A uniform system throughout the State.' (Our italics.)
Our summary of its provisions discloses that the Mecklenburg Act Regulates with particularity the manner in which a licensed restaurateur may purchase and sell alcoholic beverages. Moreover, such purchase and sale constitute Trade within the meaning of former Article II, Section 29, and present Article II, Section 24.
'Trade within the meaning of Article II, Section 29 of our Constitution is a business venture for profit and includes any employment or business embarked in for gain or profit.' High Point Surplus Co. v. Pleasants, Sheriff, supra, 264 N.C. at 655--656, 142 S.E.2d at 702. Accord: State v. Dixon, 215 N.C. 161, 164, 1 S.E.2d 521, 522 (1939); State ex rel. Taylor v. Carolina Racing Asso., 241 N.C. 80, 84 S.E.2d 390 (1954); Orange Speedway, Inc. v. Clayton, 247 N.C. 528, 533, 101 S.E.2d 406, 410 (1958); Treasure City of Fayetteville, Inc. v. Clark, supra, 261 N.C. at 133, 134 S.E.2d at 99; State v. Smith, 265 N.C. 173, 177, 143 S.E.2d 293, 296--297 (1965). In each of these cases, a local act was held to be an act Regulating trade and therefore void as violative of former Article II, Section 29.
The Local act involved in State v. Dixon, supra, provided for the licensing and regulation of real estate brokers and salesmen; that involved in State ex rel. Taylor v. Carolina Racing Asso., supra, provided for the operation of a pari-mutuel dog racing track for private profit by the licensee of a racing commission; that involved in Orange Speedway, Inc. v. Clayton, supra, required a promotor of motorcycle or motor vehicle races for profit to obtain insurance coverage for drivers and spectators and also banned races on Sundays and evenings; that involved in Treasure City of Fayetteville, Inc. v. Clark, supra, provided that '(a)ny person, firm or corporation who engages on Sunday in the business of selling, or sells or offers for sale on such day (certain articles of merchandise), shall be guilty of a misdemeanor'; that involved in High Point Surplus Co. v. Pleasants, Sheriff, supra, authorized county commissioners to regulate and prohibit the sale of goods, wares and merchandise on Sunday; and that involved in State v. Smith, supra, authorized the Board of Commissioners of Forsyth County to regulate or prohibit the operation of public...
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