State v. Greenwood

• Decision Date: 17 November 1971
• Docket Number: No. 7128SC519,7128SC519
• Citation: 184 S.E.2d 386,12 N.C.App. 584
• Parties: STATE of North Carolina v. Kenneth R. GREENWOOD.
• Court: North Carolina Court of Appeals

Page 386

184 S.E.2d 386

12 N.C.App. 584

STATE of North Carolina v. Kenneth R. GREENWOOD.

No. 7128SC519.

Court of Appeals of North Carolina.

Nov. 17, 1971.

Atty. Gen. Robert Morgan and Associate Atty. Gen. Benjamin Baxter Jr., for the State, appellant.

Uzzell & Dumont by Harry Dumont, for defendant appellee.

MALLARD, Chief Judge.

The defendant challenges the right of the State to appeal from the judgment of the superior court.

The Constitution of North Carolina, Art. IV, § 12(6), provides that the General Assembly shall provide by general law a proper system of appeals. The General Assembly has provided a proper system of appeals for both the State and the defendant in criminal cases.

In criminal cases, it is provided in G.S. § 7A--290 that any defendant who is convicted in the district court may appeal to the superior court where the trial is de novo. This statute relates solely to the right to appeal of a convicted defendant. In the superior court, the defendant, upon appeal, is entitled to a trial de novo by jury. G.S. § 7A--196.

The State's right to appeal is limited. The General Assembly has provided in G.S. § 15--179:

'When State may appeal.--An appeal to the appellate division or superior court may be taken by the State in the following cases, and no other. Where judgment has been given for the defendant--

(3) Upon a motion to quash.

(6) Upon declaring a statute unconstitutional.'

Under this statute, if the State's right to appeal arises in the district court, the appeal is to the superior court; if it arises in the superior court, the appeal is to the appellate division. In this case, therefore, the State had the right to appeal from the district court to the superior court and from the superior court to the Appellate Division of the General Court of Justice.

The defendant further contends that when the State appealed from the district court to the superior court, the trial was de novo. In his brief, he moves that we dismiss the State's appeal and cites in support of his contention the case of State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897 (1970). In Sparrow, however, the factual situation is distinguishable: There, the defendant appealed, not the State. G.S. § 7A--290 specifically provides that upon a Defendant's appeal from the district court to the superior court, the trial shall be de novo. G.S. § 15--179 permits the State to appeal under the limited circumstances enumerated but does not specify that the trial must be de novo.

We think that the judgment of the superior court, the only one we are concerned with on this appeal, is sufficient to constitute a judgment given for the defendant upon a motion to quash. This permits the State to appeal to this court. The motion of the defendant to dismiss this appeal is denied.

The defendant made certain exceptions to the case on appeal, but none of them concerned the actual contents of the ordinance in question; therefore, the authenticity of the ordinance is not in dispute. The ordinance appears on page 5 of the record and reads as follows:

'Sec. 7--7. OPERATION BETWEEN CERTAIN HOURS AND ON SUNDAY PROHIBITED.

It shall be unlawful for any billiard hall licensee or his employee to keep such billiard hall open or to operate the same between the hours of 12:00 midnight and 8:00 a.m., or at any time on Sunday. (Code 1945, § 185)'

The General Assembly, by enacting G.S. § 160--200(33), gave to cities the power '(t)o license, prohibit, and Regulate pool and billiard rooms and dance halls, and in the interest of public morals provide for the revocation of such licenses.' (Emphasis Added)

The language of the statute indicates that the General Assembly recognized that the regulation and operation of pool and billiard rooms and of dance halls have a peculiar relation to public morals.

'The police power rests in the individual states, and in the exercise thereof the legislature may enact laws, within constitutional limits, to protect or promote the health, morals, order, safety, and general welfare of society. State v. Ballance, 229 N.C. 764, 51 S.E.2d 731, 7 A.L.R.2d 407; State v. Whitaker (228 N.C. 352, 45 S.E.2d 860), Supra. The General Assembly may delegate to a municipality, as an agency of the State, authority to enact ordinances in the exercise of the police power. State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97. However, the municipality has only such powers as are delegated to it, and such powers are, of course, subject to the same constitutional limitations as the police powers exercised directly by the State. Winston-Salem v. Southern Ry. (248 N.C. 637, 105 S.E.2d 37), Supra. In reviewing the exercise of the police power, it is the sole duty of the court to ascertain whether the act violates any constitutional limitation, the question of public policy being solely within the province of the legislature. State v. Whitaker, Supra. Generally, the police power can only be exercised by a body possessing legislative power, 16 C.J.S. Constitutional Law § 177 (1956), and it is generally accepted that the police powers of a municipality are to be carried into effect and discharged through provisions of ordinances or resolutions enacted by the Council or other governing authority at a meeting legally called. 37 Am.Jur. Municipal Corporations § 52 (1941); 2 McQuillin Municipal Corporations § 10.30, at 816 (3d ed. 1966 rev. vol.)' City of Raleigh v. Norfolk Southern R.R. Co., 275 N.C. 454, 168 S.E.2d 389 (1969).

The State contends that the trial judge in the superior court committed error in affirming the order of the district court quashing the warrant.

The parties do not question the sufficiency of the warrant, as amended, to charge a violation of the ordinance. Nor is there any contention that the procedure used by the City of Asheville in adopting the ordinance was unlawful.

The defendant contends, however, that the statute does not specifically delegate the power to the cities to control the hours and days of operation of the places of business embraced therein. This contention is without merit. The clear language of the statute is sufficient to authorize the City of Asheville to adopt the ordinance in question.

Defendant further argues that the statute and ordinance are void because bowling alleys and snooker pool rooms are not included therein. This contention is also without merit. In Turner v. New Bern, 187 N.C. 541, 122 S.E. 469 (1924), it is stated:

'A statute enacted within the police power will not be adjudged invalid because an omitted subject * * * might have been properly included.'

In State v. Trantham, 230 N.C. 641, 55 S.E.2d 198 (1949), Justice Barnhill (later Chief Justice) said:

'Legislative bodies may distinguish, select, and classify objects of legislation. It suffices if the classification is practical. Magour v. Illinois Trust & Savings Bank, 170 U.S. 283, 18 S.Ct. 594, 42 L.Ed. 1037; State v. Davis (171 N.C. 809, 89 S.E. 40), Supra. They may prescribe different regulations for different classes, and discrimination as between classes is not such as to invalidate the legislative enactment. Smith v. Wilkins, 164 N.C. 135, 80 S.E. 168.

The very idea of classification is inequality, so that inequality in no manner determines the matter of constitutionality. Bickett v. State Tax Commission, 177 N.C. 433, 99 S.E. 415; Atchison, T. & S.F.R. Co. v. Matthews, 174 U.S. 96, 19 S.Ct. 609, 43 L.Ed. 909. The one requirement is that the ordinance must affect all persons similarly situated or engaged in the same business without discrimination. City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1.

Only those ordinances which discriminate between those of a particular group or class who are similarly situated with reference to the subject matter of the legislation come within the constitutional inhibitions.'

See also State v. McGee, 237 N.C. 633, 75 S.E.2d 783 (1953); State v. Glidden Co., 228 N.C. 664, 46 S.E.2d 860 (1948); State v. Denson, 189 N.C. 173, 126 S.E. 517 (1925).

The desirability of, and constitutional authority for having some statutory regulation of pool and billiard rooms have been recognized for many years. See Murphy v. California, 225 U.S. 623, 32 S.Ct. 697, 56 L.Ed. 1229 (1911); Brunswick-Ballke-Collender Co. v....