State v. Stallings

• Decision Date: 13 April 1949
• Docket Number: No. 361.,361.
• Citation: 230 N.C. 252,52 S.E.2d 901
• Court: North Carolina Supreme Court
• Parties: STATE . v. STALLINGS.

52 S.E.2d 901

230 N.C. 252

STATE .

v.STALLINGS.

No. 361.

Supreme Court of North Carolina

April 13, 1949.

.

Appeal from Superior Court, Cabarrus County; J. A. Rousseau, Judge.

T. R. Stallings, a duly licensed taxicab driver, was convicted of failing to wear a distinctive cap as required by taxicab ordinance and he appeals.

No error.

This is a criminal action in which the defendant, T. R. Stallings, a duly licensed operator and driver of a taxicab in the City of Concord, was indicted in Cabarrus County upon a warrant duly issued, charging him with violating Section 1, Article IX, of the Taxicab Ordinance of the City of Concord, by failing to wear a cap, as required by the provisions of said ordinance.

Article IX, Section 1, referred to above, reads as follows: "CAP AND UNIFORM REQUIRED. Drivers of taxicabs shall be clean in dress and in person, and shall wear a distinctive, cap and necktie and be neat at all times while operating a taxi-cab."

It was admitted by the defendant that on the date alleged in the warrant, May 2, 1948, he was operating a taxicab in the City of Concord, within the meaning of the ordinance, and that he was wearing a hat instead of a distinctive cap.

It was admitted that the defendant was a duly licensed taxicab operator and driver in the City of Concord.

The defendant admitted the Taxicab Ordinance was enacted by the Board of Aldermen of the City of Concord on December 17, 1947.

The jury returned a verdict of guilty and from the judgment imposed, the defendant appeals and assigns error.

Harry M. McMullan, Atty. Gen, T. W. Bruton, Asst. Atty. Gen, and Forrest H. Shuford, II, of Raleigh, Member of Staff, for the State.

L. E. Barnhardt, of Concord, and Morton & Williams, of Albemarle, for defendant.

DENNY, Justice.

The defendant challenges the validity of the section of the Ordinance under consideration, on the ground that it is not a just and reasonable regulation, but is unlawful, arbitrary and unreasonable, and in violation of defendant's constitutional rights. Or, to put it another way, the defendant does not challenge the Ordinance on the ground that it is too vague and indefinite to be enforceable. He challenges the power of the Mayor and Board of Aldermen of the City of Concord to pass an ordinance, requiring each operator and driver of a taxicab licensed by the City of Concord, to wear a cap while operating his taxicab.

The defendant simply takes the position and says in his brief, "the wearing of a hat instead of a cap as prescribed by said ordinance * * * is not detrimental in any sense to the public welfare."

Consequently, this appeal does not turn on what is meant by a "distinctive cap". If it did so, we might have some difficulty in sustaining this section of the ordinance, State v. Gooding, 194 N.C. 271, 139 S.E. 436; State v. Morrison, 210 N.C. 117, 185 S.E. 674; 50 Am.Jur. p. 204, et seq.; but since the ordinance is not challenged on the ground that it is too vague and indefinite to be enforceable, we will refrain from passing on its validity in that respect. Furthermore, "the rule is, that if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of lesser moment, the latter alone will be determined. Reed v. Madison County, 213 N.C. 145, 195 S.E. 620." State v. Lueders, 214 N.C. 558, 200 S.E. 22, 23. Moreover, constitutional questions abandoned or not raised on an appeal will not be decided by the Court. And in passing on such questions, the Court will limit its decision to those questions which have been properly presented and fully argued. 11 Am.Jur.Const. Law, Sec. 93, p. 720 et seq. Public Service Commission v. Grimshaw, 49 Wyo. 158, 53 P.2d 1, 109 A.L.R. 534.

The defendant contends that the power of a city to regulate taxicabs and taxicab operators is strictly limited to the express powers granted in G.S. § 160-200, subsection 7 and subsection 36a, and that the power to prescribe the clothing a taxicab driver shall wear is not granted therein.

G.S. § 160-200, subsection 7 of the above statute, grants to cities the following power: "To pass such ordinances as are expedient for maintaining and promoting the peace, good government, and welfare of the city, and the morals and happiness of its citizens, and for the performance of all municipal functions." And the pertinent part of subsection 36a, reads as follows: "The governing body may also require operators and drivers of taxicabs to prominently post and display in each taxicab, so as to be visible to the passengers, therein, permit, rates and/or fares, fingerprints, photographs, and such other identification matter as deemed proper and advisable."

In addition to these statutes, we find that G.S. § 20-37, also provides: "That cities and towns shall have the power to license, regulate and control drivers and operators of taxicabs within the city or town limits and to regulate and control operators of taxicabs...