State v. Vestal

Decision Date16 June 1972
Docket NumberNo. 108,108
Citation189 S.E.2d 152,281 N.C. 517
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. H. R. VESTAL.

Atty. Gen. Robert Morgan, P. Eugene Price, Jr., County Atty., and Robert K. Leonard, Asst. County Atty., for the State.

White, Crumpler & Pfefferkorn, by Fred G. Crumpler, Jr., Michael J. Lewis and G. Edgar Parker, Winston-Salem, for defendant.

LAKE, Justice.

The defendant's motion to quash raises the question of the sufficiency of the summons, or warrant, to charge the commission of a criminal offense. State v. Brewer, 258 N.C. 533, 129 S.E.2d 262, 1 A.L.R.3d 1323, app. dism., 375 U.S. 9, 84 S.Ct. 72, 11 L.Ed.2d 40; State v. Walker, 249 N.C. 35, 105 S.E.2d 101; State v. Glidden Co., 228 N.C. 664, 46 S.E.2d 860. It is essential to jurisdiction that a criminal offense be charged in the warrant or indictment upon which the State brings the defendant to trial. State v. Guffey, 265 N.C. 331, 144 S.E.2d 14. If the only charge therein is that the defendant violated a statute or an ordinance which is unconstitutional, the motion to quash must be allowed.

In passing upon such motion, the court treats the allegations of fact in the warrant, or indictment, as true and considers only the record proper and the provisions of the statute or ordinance. State v. Lee, 277 N.C. 242, 176 S.E.2d 772; State v. McBane, 276 N.C. 60, 170 S.E.2d 913; State v. Cooke, 248 N.C. 485, 103 S.E.2d 846; State v. Andrews, 246 N.C. 561, 99 S.E.2d 745. There was, therefore, no error in the refusal of the superior court to permit witnesses for the State to testify as to the manner in which the defendant actually operates his business. The State's Assignment of Error No. 1 is, therefore, overruled.

The summons, or warrant, in the present case charges the defendant with violation of the requirement of the ordinance that 'a solid fence or wall not less than 6 feet in height shall be erected not less than 50 feet from the Edge of any public road adjoining the yards.' (Emphasis added.) As Justice Parker, later Chief Justice, speaking for this Court in State v. Brewer, supra, said, 'The books are filled with statements by the Courts of the rule that a crime must be defined in a penal statute with appropriate certainty and definiteness.' In Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, it is said, '(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process.' To the same effect, see: State v. Furio, 267 N.C. 353, 148 S.E.2d 275; State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E.2d 870; State v. Hales, 256 N.C. 27, 122 S.E.2d 768; State v. Morrison, 210 N.C. 117, 185 S.E. 674.

The ordinance contains no definition of the term 'the edge of any public road.' The term 'public road' includes, of course, both paved and unpaved roads. In oral argument, counsel for the State suggested that the edge of a road is the edge of the traveled portion thereof. In the case of an unpaved road, however, this will vary from time to time. Other possible interpretations include: the outer edge of the shoulder, the outer edge of the side ditch, the edge of the pavement in the case of a paved road, the outer boundary of the right of way. Between these possible constructions, the court is not permitted to make a selection. State v. Morrison, supra; State v. Partlow, 91 N.C. 550, 553. The operator of an automobile wrecking yard may not be required to guess at the required location of his fence at the risk of a fine or imprisonment if he guesses wrong as to the location which the court says was the one intended by the legislative body. The provision of the ordinance here in question must be deemed unconstitutionally vague and for this reason, if for no other, the motion to quash was properly allowed.

The ordinance does not require, and would not necessarily be satisfied by, the erection of a fence upon the boundary of the lot whereon the automobile wrecking yard is located. It may well be that the right of way for the road may not extend as far as 50 feet from 'the edge of the road,' assuming that to be capable of location. In that situation, the ordinance would require the erection of a solid fence at a point which would render virtually unusable a portion of the land of the operator of the yard.

The State, on behalf of the county, contends that the purpose of the requirement is not aesthetics but highway safety. It says that the lot of this defendant lies in the corner of an intersection of two public roads and contends that, without such a fence, junked automobiles, awaiting dismantling or other disposition by the defendant, will be stored so near the roads as to block the view of drivers, thus increasing the danger of collisions in the intersection. While a reasonable restriction upon the use which a landowner may make of his property may be imposed under the police power in the interest of public safety, there must be a reasonable basis for supposing that the restriction imposed will promote such safety, otherwise the restriction is a deprivation of property without due process of law. See: State v. Warren, 252 N.C. 690, 694, 114 S.E.2d 660; Winston-Salem v. R.R., 248 N.C. 637, 642, 105 S.E.2d 37; State v. Ballance, 229 N.C. 764, 769, 51 S.E.2d 731; Skinner v. Thomas, 171 N.C. 98, 87 S.E. 976.

It is obvious that a solid fence, 6 feet high, upon, or approximately upon, the boundaries between the wrecking yard and the rights of way of two intersecting roads, would be more of an obstruction to the view of drivers than would junked automobiles, parked near but within the boundaries of the yard. Furthermore, the requirement of the ordinance is not limited to yards lying at an intersection of roads. It applies where a single road runs along one side of the automobile wrecking yard. Clearly, automobiles stored within the boundaries of such a yard will not obstruct the view of drivers of vehicles on the road. It is utterly unrealistic to suppose that the sights observable in the yard will distract drivers from attention to traffic on the highway. Consequently, we see no reasonable basis for supposing that the construction of such a fence along the boundary of the automobile wrecking yard will promote safety on the adjacent roads.

If the proper construction of the ordinance is that the fence must be built substantially within the boundaries of the lot on which the automobile wrecking business is located, then the ordinance...

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  • A-S-P Associates v. City of Raleigh
    • United States
    • North Carolina Supreme Court
    • October 3, 1979
    ...relation to the public health, safety or morals, or the general welfare, deprives individuals of due process of law. State v. Vestal, 281 N.C. 517, 189 S.E.2d 152 (1972); Little Pep Delmonico Restaurant, Inc. v. Charlotte, 252 N.C. 324, 113 S.E.2d 422 (1960); State v. Brown, 250 N.C. 54, 10......
  • Heritage Village Church and Missionary Fellowship, Inc. v. State
    • United States
    • North Carolina Court of Appeals
    • April 3, 1979
    ...are void for vagueness. See Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926); State v. Vestal, 281 N.C. 517, 189 S.E.2d 152 (1972); State v. Furio, 267 N.C. 353, 148 S.E.2d 275 (1966); Surplus Store, Inc. v. Hunter, 257 N.C. 206, 125 S.E.2d 764 In N.A.A.......
  • State v. Rankin, 23A18
    • United States
    • North Carolina Supreme Court
    • December 21, 2018
    ...relies on State v. Wagner , 356 N.C. 599, 601, 572 S.E.2d 777, 779 (2002) (per curiam). Wagner cites directly to State v. Vestal , 281 N.C. 517, 520, 189 S.E.2d 152, 155 (1972), another case that predates the Criminal Procedure Act.6 Admittedly, the General Assembly relaxed the requirements......
  • Hyatt v. Town of Lake Lure, CIV. 1:02CV94.
    • United States
    • U.S. District Court — Western District of North Carolina
    • August 26, 2002
    ...only case cited by either party which is factually similar was decided by the North Carolina Supreme Court in 1972. State v. Vestal, 281 N.C. 517, 189 S.E.2d 152 (1972). In that case, a county zoning ordinance required that owners of various types of salvage or junk yards erect "[a] solid f......
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