State v. Hundley

• Decision Date: 28 March 1928
• Docket Number: 446.
• Citation: 142 S.E. 330,195 N.C. 377
• Parties: STATE v. HUNDLEY et al.
• Court: North Carolina Supreme Court

142 S.E. 330

195 N.C. 377

STATE v. HUNDLEY et al.

No. 446.

Supreme Court of North Carolina

March 28, 1928

Appeal from Superior Court, Mecklenburg County; Webb, Judge.

Mrs. J F. Hundley and another were convicted of violating a city ordinance, and they appeal. No error.

Each of the defendants was tried in the recorder's court of the city of Charlotte, upon a warrant issued on June 27, 1927 charging a violation of an ordinance of the city of Charlotte. From judgments upon convictions at said trials each defendant appealed to the superior court of Mecklenburg county. At July term, 1927, of said court, the actions were by consent consolidated for trial. There was a verdict of "Guilty" as to each defendant.

From judgment upon the verdicts defendants appealed to the Supreme Court.

Clarkson and Brogden, JJ., dissenting.

C Henry Edwards, of Charlotte, and Fred McCall, of New Haven, Conn., for appellants.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CONNOR J.

The question presented for decision by this appeal involves only the validity of an ordinance of the city of Charlotte, duly adopted and ratified on December 16, 1926. By its terms, the said ordinance became effective from and after the 27th day of December, 1926. It is as follows:

"Section 1. It shall be unlawful for any person to engage in the business of soliciting alms, or begging charity, for his or her own livelihood, or for any charitable purpose, upon the streets of the city of Charlotte, or in any public place within the corporate limits of the city of Charlotte, without first securing a permit from the governing body of the city of Charlotte to engage in such business.

Sec. 2. Any person desiring to engage in the business of begging, or soliciting alms, shall file with the governing body of the city of Charlotte an application for a permit, which permit shall state the name of the person who makes the application, the purpose for which alms or charity are to be solicited, and the manner in which said funds are to be disbursed, and the governing body of the city of Charlotte shall not issue a permit, as provided herein, to any person unless the said governing body shall be satisfied that the said applicant is a person worthy of assistance or help from the citizens of Charlotte, or that the cause said applicant represents is a worthy cause, and that the funds to be solicited will be properly disbursed.

Sec. 3. That any person soliciting alms, or begging charity in violation of the provisions of this ordinance shall be guilty of a misdemeanor and liable to a fine of $50, and each act done in violation hereof shall constitute a separate offense.

Sec. 4. That all ordinances in conflict herewith are repealed.

Sec. 5. That this ordinance shall be in full force and effect from and after the 27th day of December, 1926."

Each defendant admitted on the trial in the superior court that she had solicited alms on the public streets of the city of Charlotte on the days named in the affidavits upon which the warrants were issued, and that such solicitations were made by her in behalf of the American Rescue Workers, Inc., a corporation organized under the laws of the state of New York, and as such engaged in religious and charitable work in the city of Charlotte. No permit had been issued to either of the defendants or to the American Rescue Workers, Inc., by the governing body of the city of Charlotte to solicit alms on the streets of said city. Applications had been made by defendants and also by the American Rescue Workers, Inc., for such permits, pursuant to the provisions of the ordinance, but the governing body of said city had refused to issue such permits to said applicants. The defense at said trial was solely upon the ground that said ordinance is void. The defendants contended, at the trial, as stated in their brief filed in this court:

"That they were guilty of no offense, since, as they contend, the ordinance is unreasonable, unconstitutional, and void for that it constitutes an attempt to use the police power in an arbitrary, unreasonable, and oppressive manner by clothing the city commissioners with uncontrolled, unlimited, unregulated, and arbitrary power to forbid and prohibit any person from soliciting for charity, regardless of his personal worth or fitness, at their ungoverned will or whimsical pleasure; and that it unwarrantedly interferes with the religious liberties of the American Rescue Workers, Inc., and obstructs them in the lawful pursuit of happiness."

At the close of the evidence, in accordance with its opinion that the ordinance is valid, the court instructed the jury that if they found from the evidence, beyond a reasonable doubt, the facts to be as contended by the state, they should return a verdict of guilty as to both defendants. Defendants excepted to this instruction and assign same as error.

The city of Charlotte as a municipal corporation has the power, conferred upon it by the General Assembly, "to adopt such ordinances for the regulation and use of the streets, squares, and parks, and other public property belonging to the city, as it may deem best for the public welfare of the citizens of the city." C. S. § 2787, subsec. 11. The ordinance involved in this appeal was duly adopted by the city of Charlotte, in the exercise of the power thus conferred. It is, therefore, valid unless it is unreasonable and oppressive in its provisions or unless it confers upon its governing body power to discriminate arbitrarily as between persons who may apply for permit to do the things otherwise forbidden by the ordinance. An ordinance of a municipal corporation, although adopted in the exercise of power conferred by statute, may be held invalid, upon the ground that it is unreasonable. It must be impartial, fair, and general. When, however, an ordinance is within the grant of power to the municipality, the presumption is that it is reasonable. By force of this presumption, it will be held valid, unless its unreasonable and oppressive character is apparent on its face, or unless by its terms it purports to confer power upon some public official to discriminate arbitrarily between citizens or other persons who may be affected by the provisions of the ordinance. Whether an ordinance is reasonable or unreasonable, or whether the power conferred by it may be exercised arbitrarily or not is for the court to determine as a matter of law, from the terms of the ordinance itself. The court will not, ordinarily, inquire into the motives which prompted the adoption of the ordinance, nor, upon the trial of a criminal action for its violation, into the manner in which the ordinance has been enforced, with respect to persons other than the defendant in said action. The ordinance, when its validity is challenged upon the ground that it is unreasonable or that it confers arbitrary power with respect to the enforcement of its provisions, must stand or fall as the same has been adopted by the municipality. As said by this court in State v. Stowe, 190 N.C. 79, 128 S.E. 481, 40 A. L. R. 559:

"In the exercise of an unquestioned police power much must necessarily be left to the discretion of the municipal authorities, and their acts will not be judicially interfered with, unless they are manifestly unreasonable and oppressive."

The following authorities are cited in support of this principle: Dillon's Mun. Corp.

§ 379; McLean v. Arkansas, 211 U.S. 539, 29 S.Ct. 206, 53 L.Ed. 315; Dobbins v. Los Angeles, 195 U.S. 223, 25 S.Ct. 18, 49 L.Ed. 169; State v. Kirkpatrick, 179 N.C. 747, 103 S.E. 65; State v. Shannonhouse, 166 N.C. 241, 80 S.E. 881; State v. Lawing, 164 N.C. 492, 80 S.E. 69, 51 L. R. A. (N. S.) 62; State v. Johnson, 114 N.C. 846, 19 S.E. 599.

We concur with the learned judge who presided at the trial in the superior court that the ordinance is valid. We find nothing therein unreasonable or oppressive, nor does the ordinance confer upon the governing body of the city of Charlotte arbitrary power to discriminate between applicants for permit to engage in the business of soliciting alms or begging charity, for a charitable purpose, upon the streets of the city of Charlotte. It is made the duty of said governing body to issue the permit to the applicant unless the said governing body shall be satisfied (1) that the said applicant is not worthy of assistance or help from the citizens of Charlotte, or (2) that the cause said applicant represents is not a worthy cause, or (3) that the funds solicited will not be properly disbursed. Evidence offered at the trial and set out in the case on appeal shows that, with respect to the applications of defendants in this action and of the American Rescue Workers, Inc., the said governing body made extended investigations, and that the applications were refused only after long and continued consideration. It is apparent, we think, that said governing body acted in good faith and after a careful exercise of the discretion vested in them by the ordinance in the matter of said applications.

The contention that the ordinance in question deprives the defendants and the American Rescue Workers, Inc., of their religious liberties, or that it obstructs them in the pursuit of happiness, manifestly, we think, cannot be sustained. It cannot be held as law that defendants or any other persons have a legal right to use the streets of a city for the purpose of carrying on the business of soliciting alms or begging for a charitable purpose, however worthy, upon the ground that they are thus engaged in the exercise of their religious liberties; nor that the right of defendants to pursue their happiness is unlawfully obstructed by forbidding them to use the streets for this...