State v. Furio, 664

• Decision Date: 25 May 1966
• Docket Number: No. 664,664
• Citation: 267 N.C. 353,148 S.E.2d 275
• Parties: STATE, v. Vincent FURIO.
• Court: North Carolina Supreme Court

Page 275

148 S.E.2d 275

267 N.C. 353

STATE, v. Vincent FURIO.

No. 664.

Supreme Court of North Carolina.

May 25, 1966.

Atty. Gen. T. W. Bruton, by Staff Atty. Andrew A. Vanore, Jr., Raleigh, for the State.

Schoch, Schoch & Schoch, High Point, for defendant appellee.

LAKE, Justice.

It will be noted that in each case the affidavit upon which the warrant was issued, and which is made a part of the warrant by reference, charges the defendant with maintaining a motion picture screen 'within the City Limits of High Point, Or within one mile of said City Limits, Or within High Point, Deep River, or Jamestown Township,' in violation of the ordinance of the city of High Point. (Emphasis added.)

An incorporated city or town is an agency created by the State. It has no governmental power or authority except such as has been granted to it by the Legislature, expressly or by necessary implication from the powers expressly conferred. G.S. § 160--1; State v. Byrd, 259 N.C. 141, 130 S.E.2d 55; Cox v. Brown, 218 N.C. 350, 11 S.E.2d 152. It has no inherent police powers. State v. Dannenberg, 150 N.C. 799, 63 S.E. 946.

While the Legislature may confer upon a municipal corporation the power to enact ordinances having effect in territory contiguous to the corporation, in the absence of the grant of such power a city or town may not, by its ordinance, prohibit acts outside its territorial limits or impose criminal liability therefor. Smith v. City of Winston-Salem, 247 N.C. 349, 100 S.E.2d 835; Holmes v. City of Fayetteville, 197 N.C. 740, 150 S.E. 624; State v. Eason, 114 N.C. 787, 19 S.E. 88, 23 L.R.A. 520. No grant of authority to the city of High Point to project beyond its territorial limits the effect of an ordinance such as that here in question has been brought to our attention. There is in the ordinance nothing to suggest that it was intended by the City Council to apply to acts beyond the city limits. Even if this ordinance be valid within the city, it cannot and does not forbid or make punishable anything done beyond the territorial limits of the city.

The warrant does not charge the defendant, unequivocally, with the doing of the acts therein specified within the city. It charges that he did the act within the city limits, where it is a criminal offense, assuming the ordinance to be valid, Or that he did the act outside the city, where it is not a criminal offense. This is not a matter of venue or of the jurisdiction of the Municipal Court of High Point. The place at which the alleged act was committed, if it was done, determines its criminality or lack of criminality, assuming the validity of the ordinance. The warrant, therefore, on its face fails to charge the commission of a crime.

Turning to the ordinance, itself, we cannot agree with the contention of the State that the intent and purpose of the ordinance was to promote safety upon the streets and highways by the elimination of sights which might distract the attention of drivers of automobiles. The obvious intent of the ordinance was to protect the right of the people of the city and visitors thereto, to drive or walk along its streets, alone or with their families and friends, and to permit their children to do so, without having flaunted in their faces language and pictures offensive to the sense of decency of any normal individual. The purpose of the ordinance is commendable but its terminology is not.

On the other hand, we do not hold, as the defendant would have us do, that the ordinance is void for the reason that the General Assembly has preempted this field by the enactment of G.S. §§ 14--189, 14--189.1, 14--189.2 and 14--190, or for the reason that by the enactment of G.S. § 14--191 the Sheriff of Guilford County is vested with the sole authority to determine what pictures or words may be displayed within the county. A municipal corporation, being the creature of the State, cannot forbid an act which a statute, state-wide in its application, permits to be done. Staley v. City of Winston-Salem, 258 N.C. 244, 128 S.E.2d 604. Likewise, where the Legislature has enacted a statute making an act a criminal offense, a city may not adopt an ordinance dealing with the same conduct. State v. Dannenberg, supra; State v. Langston, 88 N.C. 692. We do not interpret G.S. §§ 14--189, 14--189.1 and 14--189.2 as granting state-wide permission to publish or display all pictures and writings not therein forbidden, or to construct or maintain a screen or other structure upon which pictures of nude or semi-nude persons are projected. Nor can it be fairly implied from these statutes that the Legislature intended to preempt the entire subject of obscene displays and publications so as to forbid a city to enact an ordinance, otherwise within its authority, which forbids publications or displays neither forbidden nor permitted by these statutes. This ordinance undertakes to forbid acts not forbidden or permitted by these statutes.

G.S. § 160--200(6) confers upon the city power 'to supervise, regulate, or suppress, in the interest of public morals, public recreations, amusements and entertainments, and to define, prohibits, abate, or suppress all things detrimental to the health, morals, comfort, safety, convenience, and welfare of the people, and all nuisances and causes thereof.' The same section provides in clause (7) that a city shall have power...