State v. Curtis

• Decision Date: 23 March 1949
• Docket Number: 146
• Citation: 52 S.E.2d 364,230 N.C. 169
• Parties: STATE v. CURTIS et al.
• Court: North Carolina Supreme Court

52 S.E.2d 364

230 N.C. 169

STATE v. CURTIS et al.

No. 146

Supreme Court of North Carolina

March 23, 1949

Criminal prosecutions upon three separate warrants begun in a justice of peace court of Marion Township charging the defendants respectively with violating 'Section 3 of the Public Health Ordinance adopted by Burke, Caldwell and McDowell District Board of Health, by selling milk in McDowell without first obtaining a permit for such sale' as provided in said section of said ordinance,--heard in Superior Court, on appeal thereto, and consolidated for purpose of trial.

For a special verdict the jury found as fact in each case that the defendant named in the warrant did sell milk or milk products without a permit as required by Section 3 of the Public Health Service Ordinance adopted by the District Board of Health of the Counties of Burke, Caldwell and McDowell.

Section 3 of the ordinance declares that 'it shall be unlawful for any person to bring into or receive into (County of) Burke, Caldwell, McDowell, or its police jurisdiction for sale, or to sell, or offer for sale therein, or to have in storage where milk or milk products are sold or served, any milk or milk product defined in this ordinance, who does not possess a permit from the health officer of (Counties of) Burke, Caldwell, McDowell * * * '. And Section 16 of the ordinance provides that 'any person who shall violate any of the provisions of this ordinance shall, upon conviction be fined not more than $50.00, or imprisoned not more than 30 days, or both, in the discretion of the court, etc. * * *'.

Upon the facts found, the court ruled that each defendant is guilty of selling milk in McDowell County without a permit required by law, and entered judgment 'that the defendants, and each of them, pay the costs of the action'.

Defendants and each of them, appeal therefrom to Supreme Court, and assignerror.

Harry M. McMullan, Atty. Gen. and T. W. Bruton, Asst. Atty. Gen for the State.

Proctor & Dameron and Roy W. Davis, all of Marion, for defendants appellants.

WINBORNE Justice.

Appellants contend, and rightly so, that Sections 3 and 16 of the Public Health Ordinance in question exceeds any lawful authority vested in the District Board of Health of Burke, Caldwell and McDowell Counties, and are void.

The statute, G.S. s 130-66, as re-written in Chapter 1030 of 1945 Session Laws of North Carolina and designated G.S. s 130-66, subsections 1, 2, 3, 4 and 5, provides that the State Board of Health of North Carolina is authorized to, and, under the rules and regulations established by it, may form, when certain conditions exist, district health departments or units including more than one county; and, in subsection 4 of the statute as re-written it is provided that 'The district board of health shall have the immediate care and responsibility of the health interests of its district. * * * It shall make such rules and regulations, and pay all lawful fees and salaries, and enforce such penalties as in its judgment shall be necessary to protect and advance the public health'.

Thus the District Board of Health is a creature of the legislature, and has only such powers and authority as are given to it by the legislature. North Carolina Utilities Comm. v. Atlantic Greyhound Corporation, 224 N.C. 293 29 S.E.2d 909. While it is given power and authority to make rules and...