State v. McGraw
| Decision Date | 19 November 1958 |
| Docket Number | No. 363,363 |
| Citation | 249 N.C. 205,105 S.E.2d 659 |
| Parties | STATE, v. R. F. McGRAW. |
| Court | North Carolina Supreme Court |
Baxter H. Finch and Raymer & Raymer, Statesville, for defendant appellant.
Atty. Gen. Malcolm B. Seawell and Asst. Atty. Gen. T. W. Bruton, for the State.
Acting contrary to the provisions of a municipal ordinance is made a misdemeanor by statute, G.S. § 14-4. Notwithstanding the all-inclusive language of the statute, guilt must rest on the violation of a valid ordinance. If the ordinance is not valid, there can be no guilt. State v. Abernethy, 190 N.C. 768, 130 S.E. 619; State v. Prevo, 178 N.C. 740, 101 S.E. 370.
Defendant admits he acted as charged. He denies the power of the town to declare such act a crime because (1) the Legislature has not delegated such authority to the town, and (2) if delegated, such delegation would do violence to sections 7, 17, and 31 of Art. I of our Constitution.
We need only consider the question of the authority to enact the provisions which reserve to the town the exclusive right to set memorial markers and require the payment of a special charge for setting such markers not purchased from the town.
Davis v. Charlotte, 242 N.C. 670, 89 S.E.2d 406, 409; Laughinghouse v. City of New Bern, 232 N.C. 596, 61 S.E.2d 802; Madry v. Scotland Neck, 214 N.C. 461, 199 S.E. 618; State v. Gulledge, 208 N.C. 204, 179 S.E. 883; G.S. § 160-1.
The town of Mooresville was created by c. LXXI, Private Laws of 1872-73. There is nothing in that Act relating to cemeteries. We have found no amendment to the charter of the town which expressly or impliedly authorizes the enactment here in question. None has been called to our attention.
Since no special authorization has been given to Mooresville, we look to statutes of statewide scope to ascertain if the power is included in the authority granted to all municipal corporations. An examination of pertinent statutes shows no specific authorizations.
If the power is to be implied, it must come from G.S. §§ 160-2(3), 160-200(22), 160-200(36) which permit towns to acquire lands for cemetery purposes, prohibit burials in any other places with authority to 'maintain cemeteries' and 'regulate the manner of burial in such cemetery,' or from G.S. §§ 160-258 and 160-259 which authorize the creation of a fund for perpetually caring for and beautifying cemeteries.
Defendant does not challenge the power of the town to prescribe reasonable rules and regulations relating to the management of the cemetery including interment and disinterment of the dead, size of lots, location and number of graves on a particular lot, kinds, types and sizes of memorial monuments and markers, types and character of foundation for such monuments as may be erected, kind and size of shrubbery and other means used to beautify and sanctify the lots. He does not question the right of the town to engage in competition with him in selling memorial markers. He merely says that it is not necessary to the proper exercise of the power given for the town to exercise a monopoly in the business of setting memorial markers, a purely commercial enterprise, or by legislative fiat penalize its commercial competition.
That the charge is not an inspection fee required to insure compliance with rules fixing the manner of setting is evident from the testimony of the city manager, a witness for the State. He said:
The fact that 30% of such charge is allocated to the Perpetual Care Fund with remainder going to the General Fund cannot change the...
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State v. Hord
...implied by those given. G.S. §§ 160-1 through G.S. 160-509; Starbuck v. Town of Havelock, 252 N.C. 176, 113 S.E.2d 278; State v. McGraw, 249 N.C. 205, 105 S.E.2d 659; Laughinghouse v. City of New Bern, 232 N.C. 596, 61 S.E.2d 802; Stephenson v. City of Raleigh, 232 N.C. 42, 59 S.E.2d The po......
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Town of Emerald Isle By and Through Smith v. State
...has been expressly or impliedly granted by the legislature. See State v. Furio, 267 N.C. 353, 148 S.E.2d 275 (1966); State v. McGraw, 249 N.C. 205, 105 S.E.2d 659 (1958); Clayton v. Tobacco Co., 225 N.C. 563, 35 S.E.2d 691 (1945). Powers conferred on the municipal corporation may be enlarge......
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