State v. Trantham
| Decision Date | 28 September 1949 |
| Docket Number | 74 |
| Parties | STATE v. TRANTHAM. |
| Court | North Carolina Supreme Court |
Criminal prosecution on warrant charging the violation of a city ordinance.
Section 199 of the Code of the City of Asheville is in the following language, to wit:
Defendant operates a general grocery store in the City of Asheville. On Sunday, May 1, 1949, one Harold Brownlee purchased from him in his place of business a certain quantity of groceries. Defendant's place of business was then open and he stated to Brownlee that he operated and kept his store open seven days a week and that anything he had for sale could be purchased on a Sunday the same as any other day.
The witness stated further that he knows that practically all garages and filling stations, drug stores, cigar stores, confectionery stores, shops, stand and bakeries which stay open on Sunday in Asheville sell anything carried in such places on Sunday the same as they do during the week days, and that such drug stores, cigar stores, confectionery stores, shops, stands and bakeries which stay open on Sunday sell on Sunday other articles of merchandise besides the articles enumerated in the proviso of the ordinance.
There was a verdict of guilty. From judgment on the verdict the defendant appealed.
Attorney General Harry M. McMullan and Assistant Attorney General T. W. Bruton for the State.
Sale, Pennell & Pennell, Asheville, for defendant-appellant.
The defendant concedes that the warrant properly charges the alleged offense and that there was sufficient evidence to support the verdict. He preserves and brings forward only those exceptions which are directed to his contention that the ordinance is unconstitutional and void for that it is arbitrary, unreasonable, and discriminatory, and unlawfully deprives him of his rights, liberties, and freedoms guaranteed by the due process clause of the U.S. Constitution, Amend. 14, and by N.C. Constitution, art. 1, sec. 17.
The attorney general challenges the right of this defendant to assail the constitutionality of the ordinance. This brings us in the first instance to this question: On this record is the defendant in position to assert the alleged unconstitutionality of the ordinance under which he stands indicted? If this be answered in the negative, any other question sought to be presented becomes moot.
Counsel for defendant informs us that the validity of Sunday closing ordinances has been the subject of discussion in at least 1,590 cases decided in the various jurisdictions of the United States. Needless to say, we have not undertaken to examine all of them. A more limited number establish well-recognized principles of law which are controlling here. Reference to some of these will suffice.
It is within the police power of the State to enact laws prohibiting secular pursuits on Sunday. State v. Burbage, 172 N.C. 876, 89 S.E. 795; Hennington v. Georgia, 163 U.S. 299, 16 S.Ct. 1086, 41 L.Ed. 166; Petit v. Minnesota, 177 U.S. 164, 20 S.Ct. 666, 44 L.Ed. 716; Anno. 29 A.L.R. 402.
The power to enact Sunday ordinances has been delegated to the municipalities of the State, G.S. ss 160-52, 160-200, subds. 6, 7, 10, State v. Burbage, supra, State v. Davis, 171 N.C. 809, 89 S.E. 40, Ann.Cas. 1918E, 1168; 50 A.J. 808, and is expressly conferred on the City of Asheville in its charter. This is conceded.
Legislative bodies may distinguish, select, and classify objects of legislation. It suffices if the classification is practical. Magoun v. Illinois Trust & Savings Bank, 170 U.S. 283, 18 S.Ct. 594, 42 L.Ed. 1037; State v. Davis, supra. They may prescribe different regulations for different classes, and discrimination as between classes is not such as to invalidate the legislative enactment. Smith v. Wilkins, 164 N.C. 135, 80 S.E. 168.
The very idea of classification is inequality, so that inequality in no manner determines the manner of constitutionality. Bickett v. State Tax Commission, 177 N.C. 433, 99 S.E. 415; Atchison, T. & S. F. R. Co. v. Matthews, 174 U.S. 96, 19 S.Ct. 609, 43 L.Ed. 909. The one requirement is that the ordinance must affect all persons similarly situated or engaged in the same business without discrimination. City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1.
Only those ordinances which discriminate between those of a particular group or class who are similarly situated with reference to the subject matter of the legislation come within the constitutional inhibitions.
'Courts never anticipate a question of constitutional law before the necessity of deciding it arises. ' Virginia Carolina Chemical Co. v. Turner, 190 N.C. 471, 130 S.E. 154. They will not listen to an objection made to the constitutionality of an ordinance by a party whose rights it does not affect and who therefore has no interest in defeating it. St. George v. Hardie, 147 N.C. 88, 60 S.E. 920; Monamotor Oil Co. v. Johnson, 292 U.S. 86, 54 S.Ct. 575, 78 L.Ed. 1141; 11 A.J. 750.
It is not sufficient to show discrimination. It must appear that the alleged discriminatory provisions...
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