State v. Rice

• Decision Date: 02 May 1887
• Citation: 2 S.E. 180,97 N.C. 421
• Parties: STATE v. RICE.
• Court: North Carolina Supreme Court

2 S.E. 180

97 N.C. 421

STATE v. RICE.

Supreme Court of North Carolina

May 2, 1887

Appeal from superior court, Davidson county.

A town ordinance which provides that "any person whose duty it shall be to make such alterations, and who shall refuse to do so after due notice thereof, shall be fined a sum not exceeding five dollars, and one dollar for each and every day he may neglect to make such repairs," leaves the fine and penalty uncertain in amount, and is void.

The Attorney General, for the State.

Robbins & Raper, for defendant.

MERRIMON, J.

The defendant was held under a warrant issued by the mayor of the town of Lexington to answer criminally, and convicted before him, for the alleged violation of a town ordinance, and the part thereof material to be set forth here provides that "any person whose duty it shall be to make such alterations, and who shall refuse to do so after due notice thereof, shall be fined a sum not exceeding five dollars, and one dollar for each and every day he may neglect to make such repairs." The defendant appealed to the superior court, and that court held that the ordinance in question was void, quashed the warrant, and gave judgment for the defendant, from which the state appealed to this court.

We cannot distinguish this case from State v. Crenshaw, 94 N.C. 877, andState v. Cainan, Id. 883. In those cases, and that of Commissioners v. Harris, 7 Jones, (N. C.) 281, it was held that a town ordinance that left the fine and penalty to be imposed uncertain as to the amount of the same was void for uncertainty. Here the fine to be imposed might be five dollars or any less sum. It was therefore uncertain, and the ordinance void.

There is no error. Let this opinion be certified to the superior court according to law. It is so ordered.