State v. Brittain

• Decision Date: 31 October 1883
• Citation: 89 N.C. 574
• Court: North Carolina Supreme Court
• Parties: STATE v. JOHN W. BRITTAIN.

89 N.C. 574

STATE

v.JOHN W. BRITTAIN.

Supreme Court of North Carolina.

October Term, 1883.

CRIMINAL ACTION tried at Spring Term, 1883, of HENDERSON Superior Court, before Avery, J.

This was an appeal by the defendant from a judgment of the mayor of the town of Hendersonville, imposing upon the defendant a fine of fifty dollars for the violation of a town ordinance, which is as follows:

“No. 25. That to sell spirituous, vinous or malt liquors within the corporate limits of the town of Hendersonville is declared a nuisance, and any person who may be guilty of said offence shall, upon conviction before the mayor, forfeit and pay a fine not to exceed fifty dollars, or be imprisoned in the lock-up in said town for not more than twenty days.”

The defendant moved to quash the warrant issued by the mayor for his arrest, but it is unnecessary to set it out here, as the decision of this court is upon another point involved in the case. The appeal, however, is taken by the state solicitor from the ruling of the judge in granting the motion to quash.

Attorney-General, for the State .

Mr. J. C. L. Harris, for defendant .

MERRIMON, J.

Municipal ordinances and by-laws must always be subordinate to and harmonize with the general laws of the state, unless in cases where special powers are conferred upon the municipality to pass ordinances inconsistent with the general law. Nor can municipalities, by ordinances, create offences known to the general laws of the state, and provide for the punishment of the same, unless they have special authority so to provide conferred either by some general or special statute. Hence, when an offence is indictable in the superior court, a city or town ordinance, making the same act, or substantially the same act, an offence punishable by fine or imprisonment, such ordinance is void. It may be that the legislature has power to authorize a town to make an offence against the state a separate offence against the town, but this could be done only by an express grant of authority. Town of Washington v. Hammond, 76 N. C., 33; State v. Langston, 88 N. C., 692.

The statutes of this state make it indictable to sell spirituous liquors by a measure less than a quart without first having obtained a license so to do. THE CODE, §§ 1076, 3701.

These statutes embrace and apply to “the town of Hendersonville.”

It appears from the record that that town has an ordinance that prohibits within its corporate limits the sale of ...