State v. Burbage

• Decision Date: 13 September 1916
• Parties: STATE v. BURBAGE.
• Court: North Carolina Supreme Court

89 S.E. 795

172 N.C. 876

STATE v. BURBAGE.

Supreme Court of North Carolina

September 13, 1916

Walker and Allen, JJ., dissenting.

Appeal from Superior Court, Beaufort County; Allen, Judge.

J. W Burbage was convicted of violating a town ordinance, and he appeals. Affirmed.

The charge was for violating an ordinance of the town of Bath which prohibited a dealer from keeping his store or shop open on Sunday for purpose of buying or selling or transacting business, except in case of necessity, and also prohibiting the proprietor of a store from allowing third persons persons other than himself or clerk, from entering his place of business on Sunday; the fine for violation of such ordinance being fixed at $10. The ordinance contains provision also that drug stores may be kept open at all times. There was special verdict rendered as follows:

"That on a Sunday in August, 1915, the defendant entered his store in the town of Bath and allowed one Clyde Paul to enter the same with him, and while he and the said Paul were in the store two or three others entered without objection by defendant; that on a Sunday in November, 1915 defendant again entered the store in the town of Bath and while there allowed one Archbell to enter the same (who was not a clerk). If upon the foregoing facts the court be of opinion that the defendant is guilty, the jury so find for their verdict, and, if the court be of opinion that he is not guilty, the jury find him not guilty." The court being of opinion that, on the facts as found, defendant was guilty, it was so entered.

Small, MacLean, Bragaw & Rodman, of Washington, N. C., for appellant.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

HOKE, J. (after stating the facts as above).

Chapter 73, Revisal, § 2923, empowers town commissioners to pass ordinances, rules, and regulations for the better government of the town, not inconsistent with the provisions of the act and the law of the land, and to enforce such ordinances, etc., by appropriate penalties. In construing this and similar legislation elsewhere, the courts have very generally held that the established municipal authorities may enact such ordinances as are promotive of the peace and good order of the town; the limitation being that the regulations may not be unreasonable or unduly discriminative nor manifestly oppressive and in "derogation of common right."

It is against the public policy of the state that one should pursue his ordinary business calling on Sunday, and, where this is the case, it is very generally understood not only that ordinary business pursuits may be regulated, but altogether prohibited on Sunday. State v. Medlin, 170 N.C. 682 86 S.E. 597. This case also holds that an ordinance of this kind is not rendered invalid, as unduly discriminative, by reason of the exception in...