State v. Smith, 413

• Decision Date: 23 July 1965
• Docket Number: No. 413,413
• Parties: STATE, v. Willie SMITH.
• Court: North Carolina Supreme Court

Page 293

143 S.E.2d 293

265 N.C. 173

STATE, v. Willie SMITH.

No. 413.

Supreme Court of North Carolina.

July 23, 1965.

T. W. Bruton, Atty. Gen., and James F. Bullock, Asst. Atty. Gen., for the State.

Hatfield & Allman, Roy G. Hall, Jr., Weston P. Hatfield and C. Edwin Allman, Jr., Winston-Salem, for defendant appellant.

SHARP, Justice.

Defendant is not precluded by his plea of nolo contendere from prosecuting this appeal, United States v. Bradford, 160 F.2d 729 (2d Cir.), as he would not have been by a plea of guilty. For the purpose of this case only, that plea has the effect of a plea of guilty. Fox v. Scheidt, 241 N.C. 31, 84 S.E.2d 259; 22 C.J.S. Criminal Law § 425(4) (1961). In State v. Warren, 113 N.C. 683, 684, 18 S.E. 498, it is said:

'The defendant having pleaded guilty, his appeal could not call in question the facts charged, nor the regularity and correctness in form of the warrant. * * * The appeal could only bring up for review the question whether the facts charged, and of which the defendant admitted himself to have been guilty, constitute an offense punishable under our laws and constitution.'

Defendant's first challenged to the resolution is that its source, Sess. Laws of 1953, ch. 1071, § 1(3), as amended by Sess.Laws of 1961, ch. 943, § 1 1/2(3), is a local act regulating trade and is therefore void under N.C.Const., art. II, § 29, which prohibits the General Assembly from passing any local, private, or special act regulating, inter alia, trade. The Attorney General contends, on the contrary, that the acts in question are not within the prohibition of N.C.Const., art. II, § 29, but are a legitimate legislative exercise of the police power. He relies upon State v. Chestnutt, 241 N.C. 401, 85 S.E.2d 297, in which it was held that a local act prohibiting all motor-vehicle racing on Sunday in Wake County did not violate N.C.Const., art. II, § 29, but was a proper exercise of the State police power by the legislature. See Note, 36 N.C.L.Rev. 537. Speaking through Bobbitt, J., the Court said, however, that, '[w]ere the statute directed solely against labor, e.g., compensated employment, or trade, e.g., business ventures, for profit, in relation to the conduct of motor vehicle races on Sunday in Wake County, the question posed would be serious indeed.' State v. Chestnutt, supra at 403, 85 S.E.2d at 299.

Both the enactments in question here apply only to Forsyth County and are clearly local acts. McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888. When they authorize the Forsyth County Board of Commissioners to regulate public pool rooms, billiard parlors, and dance halls they purport to regulate trade, for, under the previous decisions of this Court, trade 'within the meaning of Article II, Section 29 of our Constitution, includes any employment or business embarked in for gain or profit.' Orange Speedway, Inc. v. Clayton, 247 N.C. 528, 533, 101 S.E.2d 406, 410; accord, State v. Dixon, 215 N.C. 161, 1 S.E.2d 521; State v. Worth, 116 N.C. 1007, 21 S.E. 204. When, to this enumeration of pool rooms, billiard parlors, and dance halls, the General Assembly added 'and any club where persons may associate for a common purpose,' Sess. Laws of 1961, ch. 943, § 1 1/2(3), did it mean only a club operated as a business venture, 'a commercial establishment serving food * * * and often featuring music, dancing and other forms of entertainment: nightclub,' or did it also mean to include 'an association of persons for social and recreational purposes or for the promotion of some common object (as literature, science, political activity) usu. jointly supported and meeting periodically, membership in social clubs usu. being confirmed by ballot and carrying the privilege of use of the club property'? These and similar definitions of club are to be found in Webster's New International Dictionary (3d Ed. 1961). If, instead of club, the General Assembly had used the term night club, a designation which nowadays we readily understand to mean only a commercial enterprise, no one would question its meaning. In the instant case we entertain no doubt whatever that in Sess. Laws of 1953, ch. 1071, § 1(3), as amended by Sess. Laws of 1961, ch. 943, § 1 1/2(3), the legislature used the word club to mean only one having a business character. The doctrine of ejusdem generis is applicable. It is conceivable that the members of a chess club, a discussion group reading 'The Great Books,' a chamber-music group, or even a bridge club might become so enthralled by their activities that for their own protection someone should impose a curfew upon them, but we cannot imagine that either the General Assembly or the County Commissioners of Forsyth would attempt to do it. Ch. 1071, Sess. Laws of 1953, as amended by Sess. Laws of 1961, ch. 943, is therefore a local act purporting to authorize Forsyth County to regulate trade and is violative of N.C.Const., art. II, § 29. It follows that the resolution cannot be sustained under this void grant of power. Can it be sustained under the general grant of police powers in G.S. § 153-9(55) to 52 counties, including Forsyth? If in an ordinance or a resolution there is a misrecital of the source of power by which it is passed, it is still valid if there is in fact authority for its enactment. 62 C.J.S. Municipal Corporations § 414c (1949); 5 McQuillin, Municipal Corporations § 16.14 (1949 Ed.).

Ch. 1060, §§ 1-1 1/2, Sess. Laws of 1963, codified as G.S. § 153-9(55), provides:

'The boards of commissioners of the several counties have power: * * * (55) In that portion of the county, or any township of the county, lying outside the limits of any incorporated city or town, * * * to supervise, regulate, or suppress or prohibit in the interest of public morals, public recreations, amusements, and entertainments; to define, prohibit, abate, or suppress all things detrimental to the health, morals, comfort, safety, convenience and welfare of the people including but not limited to the regulation and prohibition of the sale of goods, wares and merchandise on Sunday * * *.' (Italics ours.)

In High Point Surplus Co. v. Pleasants, N.C., 142 S.E.2d 697, we held that G.S. § 153-9(55), insofar as it purported to authorize only 52 of the 100 counties to regulate and prohibit the sale of goods, wares, and merchandise on Sunday, was a local act regulating trade and thus a violation of N.C.Const., art. II, § 29. The Raleigh ordinance involved, enacted pursuant to G.S. § 153-9(55) and purporting to make it unlawful to conduct or engage in or carry on within the city on Sunday any business except certain specified types thereof, was, therefore, also void. It does not necessarily follow, however, that the entire section is unconstitutional. "A statute may be valid in part and invalid in part. If the parts are independent, or separable, but not otherwise, the invalid part may be rejected and the valid part may stand, provided it is complete in itself and capable of enforcement.' 82 C.J.S., Statutes § 92. Our decisions are in accord.' Constantian v. Anson County, 244 N.C. 221, 228, 93 S.E.2d 163, 168.

When enacted by cities and towns under general laws, Sunday-observance ordinances which are reasonable and do not discriminate within a class of competitors similarly situated have been upheld as a valid exercise of delegated police power. Charles Stores v. Tucker, 263 N.C. 710, 140 S.E.2d 370; Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E.2d 364. All such ordinances, when they proscribe buying and selling, whether it be, say, tangible merchandise or a ticket to an amusement or a sporting event, regulate trade under the broad definition of trade which has been adopted by this Court. Since, however, these city ordinances are passed under general laws, G.S. § 160-52 and G.S. § 160-200 (6), (7), and (10), with reference to them we have no conflict between the exercise of the police power and N.C.Const., art. II, § 29. State v. McGee, 237 N.C. 633, 75 S.E.2d 783. But the General Assembly has not by general law delegated to counties the same authority it has to cities and towns. High Point Surplus Co. v. Pleasants, supra. An act is not invalid merely because it is local unless it violates some constitutional provision. Orange Speedway, Inc. v. Clayton, supra. N.C.Const., art. II, § 29, does not forbid local acts passed in the exercise of delegated police power if they do not relate to the matters therein prohibited. State v. Chestnutt, supra. See State v. Dixon, supra, 215 N.C. at 177, 1 S.E.2d at 527 (dissent). 'Within extremely broad limits the state legislatures may control practices in the business-labor field, as long as specific constitutional prohibitions are not violated * * *.' 16 C.J.S. Constitutional Law § 188 (1956).

When a county or a city attempts to pass, under a local grant of police power, a Sunday-observance ordinance whose only effect is to regulate trade, the legislation must yield to N.C.Const., art. II, § 29, whether the purported authority to pass...