State v. Rice

• Decision Date: 10 April 1912
• Citation: 74 S.E. 582,158 N.C. 635
• Parties: STATE v. RICE.
• Court: North Carolina Supreme Court

74 S.E. 582

158 N.C. 635

STATE v. RICE.

Supreme Court of North Carolina

April 10, 1912

Appeal from Superior Court, Guilford County; Cooke, Judge.

R. F Rice was convicted in the municipal court of a violation of a municipal ordinance, and, on appeal to the superior court the warrant was quashed, and the State appeals. Reversed.

The Attorney General and A. Wayland Cooke, for the State.

Sapp & Williams, for appellee.

CLARK C.J.

The defendant, who lives outside the corporate limits of Greensboro, was indicted in municipal court of the city of Greensboro for unlawfully and willfully "keeping and running hogs in a lot within one-fourth of a mile of the corporate limits of the city of Greensboro," in violation of the city ordinance, which is set out, and which provides: "It shall be unlawful for any person, firm or corporation to keep any hogs or pigs within the corporate limits of the city of Greensboro or within one-fourth of a mile of said limits." On appeal from the municipal court the warrant was quashed and the state appealed.

The General Assembly provides in the charter of Greensboro (Private Laws 1911, c. 2, § 27) that all ordinances of the city of Greensboro enacted "in the exercise of police powers given to it for sanitary purposes or for the protection of the property of the city, shall apply to the territory outside of said city limits within one mile of same in all directions." The Legislature has unquestioned authority to confer upon the town authorities jurisdiction for sanitary or police purposes of territory beyond the city limits. 28 Cyc. 704; 20 A. & E. Enc. 1148, and cases there cited. This is sometimes conferred for police protection, but oftener for the preservation of public health. Power is often granted to the town authorities to police the watershed beyond corporate limits, so that the city may have pure water; also to insure cleanliness, to protect the sewerage and for many like purposes to protect the health of those living within the city. Among the most notable cases are Van Hook v. Selma, 70 Ala. 361, 45 Am. Rep. 85; Chicago Packing Co. v. Chicago, 88 Ill. 221, 30 Am Rep. 545; Emerich v. Indianapolis, 18 Ind. 279, 20 N.E. 795; Albia v. O'Harra, 64 Iowa, 297, 20 N.W. 444; State v. Franklin, 40 Kan. 410, 19 P. 801; Jordan v. Evansville, 163 Ind. 512, 72 N.E. 544, 67 L. R. A. 613, 2 Ann. Cas. 96. There are many other cases to like effect, and none to the contrary. Among the late cases are Gower v. Agee, 128 Mo.App. 427, 107 S.W. 999; Ex parte Glass, 49 Tex. Cr. R. 87, 90 S.W. 1108. In this last case the court sustained an ordinance forbidding the keeping of hogs within one mile of the courthouse. The court held that this was a matter within the discretion of the town commissioners, though it permitted hogs to be kept at places within town limits beyond that distance from the courthouse. In 2 Abbott, Mun. Corp. § 562, it is said: "It is, of course, within the power of the state Legislature to authorize a town to pass ordinances which shall have a restricted effect beyond their limits." In Chicago Packing Co. v. Chicago, supra, the court said: "Persons desiring to engage in particular avocations in or near cities must submit to have their pursuits limited and controlled at least so far as the preservation of health and to a reasonable extent the comfort of the people may require. *** The lives, the health, and comfort of the people are the highest claim and demand the first and greatest protection. *** They have the right to be protected against all kinds of business that endanger life and health, and from intolerant nuisances that destroy their comfort. To accomplish this purpose, the power was conferred upon cities and villages to regulate these establishments for the distance of one mile beyond their corporate limits, even if that shall lap over and embrace a portion of territory included in the boundaries of another municipality. Each, to that extent, has the right to protect its inhabitants, and such establishments, located in such territory, are subject to the police power of both corporate bodies. The ordinance there sustained was for the regulation of the great packing houses located outside of Chicago, and which had been licensed by a neighboring town.

The argument that the town of Greensboro is governed under the commission form of government with initiative, referendum, and recall, and therefore that its municipal authorities should have no control outside the city limits is wanting in application. The question is not how the city authorities are chosen, but what power the Legislature has conferred upon them over adjacent districts beyond the city limits in which may be set up establishments, businesses, or other things which would be injurious to the health of its people. There is nothing in our Constitution which restricts the Legislature in the exercise of its police power from conferring upon the municipal authorities of Greensboro such power. Indeed, the municipal court of Greensboro is given jurisdiction outside the city limits, and such jurisdiction has been affirmed at this term in State v. Brown, 74 S.E. 580; citing State v. Shine, 149 N.C. 480, 62 S.E. 1080; State v. Baskerville, 141 N.C. 811, 53 S.E. 742, and divers other cases.

The city therefore had the same power to pass this ordinance and make it applicable to a district within a quarter of a mile outside the city limits as it had to prohibit "keeping any hogs or pigs within the corporate limits." The question, therefore, is whether it could pass such ordinance applicable within the city limits. In State v. Hord, 122 N.C. 1093, 29 S.E. 952, 65 Am. St. Rep. 743, the court held that the town authorities could forbid keeping a hogpen within the city limits. In that case the prohibition was against keeping a hogpen within 100 yards of the residence of another, which was, of course, practically an entire prohibition. In 2 Dillon, Mun. Corp., it is said that "the keeping of hogs and swine is a generally recognized subject...