State v. Summerfield

• Decision Date: 10 November 1890
• Citation: 12 S.E. 114,107 N.C. 895
• Court: North Carolina Supreme Court
• Parties: State. v. Summerfield.

107 N.C. 895

12 S.E. 114

State.

v.Summerfield.

Supreme Court of North Carolina.

Nov. 10, 1890.

Municipal Ordinances—Exposing Merchandise in Front or Stores.

A municipality authorized by the legislature to pass any ordinance in the nature of a police regulation that is consistent with the laws of the land may prohibit the exposing of any produce, merchandise, cooked provisions, poultry, fruit, vegetables, or other commodity, on the space between stores and the sidewalk, and used as part of the sidewalk, as well as upon the sidewalk.

This was a criminal action, instituted by a warrant returnable before the court of the mayor of the town of Durham, and carried by appeal to the superior court of Durham county, where it was tried at the October term, 1890, before MacBae, J. The special verdict of the jury, and the ruling and judgment of the court, were as follows: " The jury for their verdict find: (1) The town of Durham is, and was at the time of the commission of the alleged offense hereinafter specified, a municipal corporation, chartered under the Laws of 1868-69 and 1874-75, c. 110, as amended by the Laws of 1889. That, among other powers given the commissioners of said town by its said charter is the following: Sec. 33, 'That the commissioners, when convened, shall have power to make and provide for the execution thereof such ordinances, by-laws, and regulations for the better government of the town as they may deem necessary: provided, the same be allowed by the provisions of the act, and consistent with the law of the land.' (2) That the commissioners of said town, duly convened in meeting prior to the 19th day of September, 1890, made and enacted the following ordinance or by-law, viz.: Sec. 9, c. 2. 'No produce, merchandise, cooked provisions, poultry, fruits, vegetables, or other commodity, shall be kept exposed for sale in or upon any sidewalk, or the space in front of buildings used as a sidewalk, alley, gutter, or street of the town; nor shall any stand be plaeed thereon for such purpose; nor shall any such articles be exposed as samples on any of the alleys, sidewalks, or the space in front of buildings used as a sidewalk or street, in such manner as to be in the way of persons traveling the same. Any person violating this provision shall, upon conviction, be fined five dollars for each offense. (3) That the sidewalk on Main street in said town is ten feet wide. That the distance from the outer curbing of said sidewalk to the buildings is more than ten feet. That the whole of said space from the outer curbing of the said sidewalk to the building is more than ten feet. That the whole of said space from the outer curbing to the building has been paved by order of the town authorities, but at the expense of the owner of the property, B. L. Duke. That said space used has never been condemned for the public use, nor held adversely by the town, but used as a sidewalk for a number of years, but not for twenty years. B. L. Duke leased said property to the defendant. (4) That the defendant's place of business is on Main street, in said town. (5) That on the 19th day of September, 1890, the defendant exposed merchandise—to-wit, clothing—for sale and as samples on the said space not included in the said ten feet from the outer curbing, so as to be in the way of persons traveling on said space not included in the said ten feet. Upon the said facts, if the court be of opinion that the defendant is guilty, the jury find her guilty; but, if the court be of the opinion that the defendant is not guilty, the jury find her not guilty. Upon the foregoing special verdict, it is considered and adjudged by the court that the defendant is guilty, and that she pay a fine of five dollars, and the cost of this action, to be taxed by the clerk, from which judgment the defendant appealed."

R. B.Boone, for appellant.

The Attorney General and W. W. Fuller...