State v. High

• Decision Date: 16 December 1942
• Docket Number: 73.
• Parties: STATE v. HIGH et al.
• Court: North Carolina Supreme Court

23 S.E.2d 343

222 N.C. 434

STATE v. HIGH et al.

No. 73.

Supreme Court of North Carolina

December 16, 1942

Sharpe & Grimes and Connor & Connor, all of Wilson, for defendants, appellants.

Harry McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

BARNHILL Justice.

The primary objective of this appeal is to test the constitutionality of Ch. 259, Public-Local Laws 1941, under which defendants were indicted, it being contended by the defendants that this statute is a local law relating to the abatement of nuisances and is prohibited by Art. II, sec. 29 N.C. Const. Decision on this question must be reserved. This Court never anticipates a question of constitutional law and it will not decide the challenged constitutionality of an act when the appeal may be disposed of on other grounds. Person v. Doughton, 186 N.C. 723, 120 S.E. 481; State v. Edwards, 190 N.C. 322, 130 S.E. 10; State v. Corpening, 191 N.C. 751, 133 S.E. 14; Newman v. Watkins, 208 N.C. 675, 182 S.E. 453; Wood v. Braswell, 192 N.C. 588, 135 S.E. 529. The record here will not permit a determination of the question thus sought to be presented.

The special verdict is insufficient to support the judgment entered. The act does not condemn the maintenance of buildings within the designated area. Nor does it prohibit the keeping and storing of junk within a building. The conduct made or attempted to be made unlawful is the maintenance of "any storage or dump or parking lot for the storage or placing or keeping of junked or scrapped or disused automobiles or automobile parts *** within or adjacent to any residential area of the Town of Wilson". For the purpose of the act the residential area is "any area or place within two hundred yards of which, residences or residence lots, shall exceed in number mercantile or manufacturing establishments." "Roofed" buildings are expressly excepted.

The jury found that the lot is within the corporate limits of the town, but this alone is not sufficient to support the verdict. They found also that the buildings are within the prohibited area. They failed, however, to find that the lot upon which junked or scrapped automobiles are stored or kept is likewise within 200 yards of a residential area as defined in the act. This is of the essence--the sine quo non--of the offense created by the statute. It may be that the buildings are

and the junk lot is not within such...