State v. Thomas

• Decision Date: 29 April 1896
• Citation: 24 S.E. 535,118 N.C. 1221
• Court: North Carolina Supreme Court
• Parties: STATE. v. THOMAS.

24 S.E. 535

118 N.C. 1221

STATE.

v.THOMAS.

Supreme Court of North Carolina.

April 29, 1896.

Municipal Corporations—Ordinance—Restriction op Use of Premises—Validity.

Code, § 3799, empowering all towns "to make such by-laws, rules and regulations for the better government of the town, as they may deem necessary, " does not authorize an ordinance making it "unlawful for any bar-keeper, clerk or agent or any person whatever to keep open, or be or remain in, a bar-room or other place where spirituous or intoxicating liquors are sold, between the hours of 10 o'clock p. m. and 4 o'clock a. m."

Appeal from superior court, McDowell county; Brown, Judge.

A warrant was issued charging E. A. Thomas with being and remaining in his barroom between the hours of 10 o'clock p. m. and 4 o'clock a. m., it being a public place where spirituous and intoxicating liquors are sold, and with permitting others so to do, in violation of ordinance (section 35 of the Ordinances) in force in the said town of Marion, etc. The town of Marion duly enacted by its commissioners and published the following ordinance: "Sec. 35. That all barrooms and places where spirituous or intoxicating liquors are sold shall be closed for the day at 10 o'clock p. m. It shall be unlawful for any bar-keeper, clerk or agent, or any person whatever, to keep open or be or remain in such bar-room or other place where spirituous or intoxicating liquors are sold, between the hours of 10 o'clock p. m. and 4 o'clock a. m., and any person violating any of the provisions of this ordinance shall, on conviction therefor, be fined twenty-five dollars." The court adjudged the defendant guilty of violating said ordinance, and the jury rendered a verdict of guilty accordingly. The defendant moved for a new trial, assigning as error the failure of the court to declare said ordinance void on its face, which defendant had prayed court to do. Overruled. Exception by defendant. Prom the judgment of conviction, defendant appeals. Reversed.

J. P. Morphew, for appellant.

The Attorney General, for the State.

AVERY, J. The defendant is indicted for violation of a town ordinance making it "unlawful for any bar-keeper, clerk or agent or any person whatsoever to keep open or be or remain in a bar-room or other place where spirituous or intoxicating liquors are sold between the hours of 10 o'clock p. m. and 4 o'clock a. m." The charge is not keeping open the barroom, but remaining in it after the hour prescribed for closing. So that the testimony that the door was not locked, though closed, is not so material as possibly it might have been if the defendant had been charged with failing to close his place of business. The ruling of the court below that the defendant was guilty upon a finding that he and his clerk sat in the barroom till 10:45 o'clock in the evening raises the question whether the authority had been granted to the municipality to pass any such ordinance, and suggests the investigation of the still more important inquiry whether the legislature, if it attempted to do so directly, was empowered to so restrict a person in the use and enjoyment of his own property. It is familiar learning that an agent acting under a power of attorney cannot transcend the limit of his authority ascertained by a strict construction of the instrument under which he acts. This elementary principle grows in importance when we come to apply it to public instead of private agencies. The maxim, "Delegatus non potest delegari, " applies to the legislature as a co-ordinate branch of the government, exercising authority denied from the constitution, as well as to agencies constituted by the ordinary power of attorney executed by an individual. Where the constitution of a state confers no express authority to delegate legislative powers to municipalities, some discussion has arisen as to the rightful exercise of such powers by municipalities. But the most...