State v. Medein

• Decision Date: 20 October 1915
• Docket Number: (No. 241.)
• Parties: STATE . v. MEDEIN.
• Court: North Carolina Supreme Court

86 S.E. 597

170 N.C. 682

STATE .

v.MEDEIN.

(No. 241.)

Supreme Court of North Carolina.

Oct. 20, 1915.

Appeal from Superior Court, Wake County; Peebles, Judge.

Prosecution against M. C. Medlin. From a judgment for defendant, the State appeals. Reversed and remanded.

The defendant was found guilty in the recorder's court of Zebulon of violation of an ordinance of that town, and appealed to the superior court. In the superior court, on a special verdict, the court held that the ordinance was void, and from this judgment the state appealed. The town charter of Zebulon is chapter 84, Private Laws 1907. The ordinance in question provides as follows:

"Sec. 2. Any person who shall open any shop or store on Sunday for the purpose of buying or selling (except ice) shall be fined $5; and if any store shall be found open it shall be prima facie evidence that the same was opened by the proprietor for the purpose of selling, but drug stores may be kept open at all times on Sundays for the sale of drugs and medicines, and from 6 to 9:30 o'clock in the morning and from 1 to 4:30 o'clock in the afternoon for the sale of drugs, medicines, mineral waters, soft drinks, cigars and tobacco only."

The ordinance was adopted by virtue of Revisal, § 2923, which provides:

"The board of commissioners shall have power to make ordinances, rules and regulations for the better government of the town, not inconsistent with this chapter and the law of the land, as they may deem necessary."

The Attorney General and Walter Clark, Jr., of Raleigh, for the State.

J. C. Little and A. J. Barwick, both of Raleigh, for appellee.

CLARK, C. J. The special verdict finds that on Sunday, July 18, 1915, after the adoption ofthe above ordinance, the defendant, who did not operate a drug store, between the hours of 6 and 8 o'clock a. m. opened his grocery store in the town of Zebulon, and sold cigars, cigarettes, and coca-cola to several purchasers, and received cash payment, and that at the same time a drug store in said town was open for the same articles, besides for the sale of drugs, etc.

The defendant contends that the ordinance is invalid: (1) Because the ordinance creates an invalid discrimination in favor of drug stores and against general dealers in the matter of the sales of cigars, tobacco, and soft drinks on Sundays. The exception is to the last paragraph of the ordinance, which permits, "from 6 to 9:30 in the morning and from 1 to 4:30 o'clock in the afternoon, " drug stores to be kept open "for the sale of drags, medicines, mineral water, soft drinks, cigars and tobacco only." If this is an invalid discrimination in favor of drug stores, the point would arise only upon an indictment against the drag store for acting under said section. If that paragraph is invalid, the keeper of the drug store would be guilty; but the defendant cannot raise the point, because the commissioners had the right to close all establishments on Sunday. But, conceding that the point could arise in this case, we do not find that such ordinance was beyond the police power vested in the town commissioners.

It cannot be contended that the commissioners could not permit the drug stores to be kept open at all times on Sunday for the sale of drugs and medicines as a matter of public necessity. The governing authorities of the town might think that the peace and order of the town and a proper regard for public opinion and securing one day of rest in seven might require that no other establishment should be open for the sale of goods other than drugs and medicines on that day at all. It is not beyond a reasonable regulation under the police power for them to provide further that, inasmuch as drug stores are open all day Sundays as a matter of necessity, they might be permitted to sell articles of common use which are quasi necessities to many, such as mineral waters, soft drinks, cigars, and...