State v. Glidden Co.
| Decision Date | 24 March 1948 |
| Docket Number | 293 |
| Citation | 46 S.E.2d 860,228 N.C. 664 |
| Parties | STATE v. GLIDDEN CO. |
| Court | North Carolina Supreme Court |
This cause was begun by warrant in the recorder's court of Caldwell County and reached the Superior Court of that county on appeal of the defendant from conviction and fine of $5,000, suspended on condition that defendant, after the 15th day of December, 1947, desist from discharging into the streams and waters of the State, 'any substance created from its mining operations.'
The warrant was amended in Superior Court by inserting therein the statement that defendant was 'a corporation duly chartered on or after the 4th day of March, 1915.'
When the case came on for a hearing the defendant, before pleading, demurred to the warrant as not charging a criminal offence, for that the statute on which it is based, to-wit G.S. s 113-172, is in violation of Article I, Section 7, of the State Constitution in attempting to confer exclusive or separate emoluments or privileges not in consideration of public services, and Article I, Section 17, guaranteeing due process of law in protection of life, liberty and property. The statute reads as follows:
Upon inspection of the warrant, the Court, being of the opinion that the statute under which it is brought violates the Constitution in the respects pleaded, sustained the demurrer and dismissed the action. The State appealed. G.S. s 15-179.
Harry McMullan, Atty. Gen., and T. W. Bruton, Hughes J. Rhodes, and Ralph Moody, Asst. Atty. Gen., for the State.
Williams & Whisnant and F. L. Townsend, all of Lenoir, for defendant, appellee.
Two questions are posed by the appeal: Whether the statute is affected with the constitutional invalidity suggested, and whether the appellee is in position to raise that defense.
It is an old saying that the proof of the pudding is in the eating. If the statute is upheld we shall have the spectacle of one corporation doing things denounced and punishable as crime and another, perhaps side by side on the same stream, doing the same thing with impunity and approval of the law. That situation can hardly be considered exemplary or conducive to what may be called, in Justinian phrase 'distributive justice.' And it has not received the approval of the Court. State v. Fowler, 193 N.C. 290, 136 S.E. 709.
The broad nature of the exception made by the proviso and its lack of useful relation to any purpose which could be attributed to the measure, especially the purported purpose of conserving fish life, is apparent. The exception embraces and immunizes all corporations chartered before the 4th day of March, 1915, without reference to whether the members of the class thus privileged were at that time using the streams to carry off waste products of a deleterious nature, or had any investment which might be impaired by a statutory prohibition, or whether the corporation is domestic or foreign, seated or ambulatory. Corporations chartered prior to March 4, 1915, alone are permitted to pollute the waters where already engaged, or elsewhere, or, if not, to peruse the map and sit down at any time, at any place, and begin. They thus have a privilege denied to corporations chartered on or after that date and to 'any person or persons' whatsoever, without qualification.
If, as suggested, the legislature had it in mind to compromise the principle of conservation by 'scotching' rather than eradicating the evil out of consideration of vested interests and the conveniences heretofore enjoyed in using the streams to carry away poisonous waste products, that is not reflected in the statute. In a law uniformly applicable to all persons engaging in the practice it might have been competent to provide that those already using the streams in that manner might have reasonable time to adjust their operations to the new conditions. But the statute does not contemplate discontinuance of the practice, but merely excepts all natural persons,...
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Smith v. Keator
...must have a reasonable basis, without arbitrary discrimination between those in like situation.' State v. Glidden Co., supra, 228 N.C. (664) at 666, 46 S.E.2d (860) at 862. Accord, Motley v. Board of Barber Examiners, 228 N.C. 337, 45 S.E.2d 550, 175 A.L.R. Since the prohibition against mas......