Opinion
(Filed 16 December, 1902.)
ORDINANCES — Invalid — Police Power — Cities and Towns.
An ordinance of a town requiring stores to be closed at 7:30 in the evening is invalid.
INDICTMENT against J. D. Ray, heard by Judge George A. Jones, at September Term, 1902, of HALIFAX.
Robert D. Gilmer, Attorney-General, and E. L. Travis for the State.
W. A. Dunn for the defendant.
CLARK, J., dissenting.
Following is the ordinance:
"Ordinance 41 1/2 — It shall be unlawful for barrooms, groceries, dry-goods stores and other places where merchandise is bought and sold (except drug stores for the sale of drugs and medicines only) to be kept open later than 7:30 o'clock P. M. except Saturday. Anyone violating this ordinance shall be fined five dollars for each and every violation.
"1. It shall be the duty of the chief of police to ring the town bell every day, except Saturdays and Sundays, at 7:30 o'clock P. M., as a notice to all to obey this ordinance.
"3. This ordinance shall go into effect on Monday, 7 July, and remain in full force and effect until 1 October, 1902, unless repealed by the town commissioners before that time.
"This 4 July, 1902."
From a verdict of guilty on a special verdict, and judgment thereon, the defendant appealed.
The defendant is the owner of a dry goods and grocery store (not of liquors) in the town of Scotland Neck, Halifax County.
Scotland Neck is an incorporated town, and on the "fourth of July," 1902, the commissioners of said town passed this ordinance:
"It shall be unlawful for barrooms, groceries, dry-goods stores and other places where merchandise is bought and sold (except drug stores for the sale of drugs and medicines only) to keep open later than 7:30 o'clock P. M., except Saturdays. Anyone violating this ordinance shall be fined five dollars for each and every violation."
The defendant admits that he is the owner of a dry-goods and grocery store in the town of Scotland Neck, and that he has kept it open later than 7:30 P. M. since 7 July, 1902, the date at which said ordinance was to go into effect, but pleads not guilty, and a special verdict was returned, finding the facts as above.
It is admitted that the charter of said town gives no special authority for the passage of such an ordinance, and that the commissioners had no authority for the passage of said ordinance, except the general powers incident to municipal corporations.
This presents squarely the question of corporate power to pass and enforce such an ordinance without any legislative authority to do so, except the fact that it is a chartered municipality. It is therefore not necessary that we should discuss the power of the Legislature to pass such an act or to authorize a municipality to pass such an ordinance, and we do not enter into the consideration of that matter.
It must be admitted that the enforcement of this ordinance would be to deprive the defendant of his natural right — would be to interfere with the free use and enjoyment of his property, used in such a way as not to interfere with the rights of others. It is not shown, nor is it suggested, that defendant's keeping his store open after 7:30 interfered with the rights of (816) anyone else. It was said that the other merchants in Scotland Neck were willing to close their stores at 7:30, but the defendant was not, and the ordinance was passed to compel him to do so, for the reason that if he kept open the others would be compelled to do so, or to give the defendant the benefit of the trade of the town after that time. But did this give the commissioners the right to close the defendant's store?
It would seem that no legislative power exists, under our form of government and our ideas of personal liberty, as to allow such to interfere with the rights of ownership and dominion over his own property, except such interference be exercised for the protection and benefit of the public. When such interference is authorized, it is under the doctrine of eminent domain, or what is known as the police power of the government. The attempted exercise of the power in this instance is clearly not under the doctrine of eminent domain, but it is said to be under the police power of the government. If the State could exercise such power (and we do not say it could), can a municipal corporation do so without express authority from the State? The general rule is, that a municipal corporation can only exercise such powers as are expressly given in its charter, or such as are necessarily implied by those expressly given. This doctrine is well expressed in 1 Dillon Mun. Corp., sec. 89, which is copied by Justice Avery in S. v. Webber, 107 N.C. 962; 22 Am. St., 920, and is approved and adopted by this Court in that case: "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied; third, those essential to the declared objects and purposes of the corporation — not simply convenient, but indispensable. Any fair, reasonable doubt (817) concerning the exercise is resolved by the courts against the corporation, and the power is denied." The same doctrine is probably more pointedly stated as applicable to the case now under consideration, in S. v. Thomas, 118 N.C. 1221, as follows: "An ordinance, says Dillon (1 Mun. Corp., sec. 325), cannot legally be made which contravenes a common right, unless the power to do so be plainly conferred by a valid and competent legislative grant; and, in cases relating to such rights, authority to regulate, conferred upon towns of limited powers, has been held not necessarily to include the power to prohibit. If the general power to pass by-laws, intended for local government merely, carries with it, by implication, the authority to restrict the use of private property by prescribing the hours when a person shall be permitted to occupy his own house, then cities and towns need nothing more than the enactment of a law creating them, with the incidental grant embodied in section 3799 of the Code, to give them equal authority with the Legislature itself to restrict and regulate the rights of personal liberty and private property within the limits of the municipality. No such latitudinarian construction was intended by the Legislature to be given by the statute, and its attempted exercise was therefore unlawful."
It seems to us that these authorities settle the question and plainly show that this ordinance was unlawful and cannot be enforced.
It is said that towns are constantly exercising such power over barrooms where liquors are sold. This power, so far as our investigation goes, is expressly given in the charters. But if there is any case where it is not, it must be understood that they stand on a very different footing to the sale of dry goods and family groceries. Liquor itself is regarded as an evil, an enemy of civilization and of good government. Bailey v. Raleigh, 130 N.C. 209; S. v. Barringer, 110 N.C. 525. Its sale without a license is condemned and prohibited by law, (818) and the regulations closing such shops might well be put upon the implied power as being for the public good. But however that may be, that is not the question before the Court, and what has been said as to the sale of liquors has only been said to meet an argument of the State.
It is also said that the State of California has exercised such power without express legislation, and that the Supreme Court of the United States affirmed the judgment of the California court. But when those cases are examined it will be found that they were cases where the business of ironing was carried on all night in a thickly settled portion of the city of San Francisco, consisting of old wooden buildings near the sound, where the wind usually blew hard, which made it very dangerous to carry on such work at late hours of the night, on account of fire. And the opinions rest upon the ground that it was for the public good, the protection of the public from the danger of fire, that the city was allowed to prevent such persons from carrying on such work at such late hours of the night. But the Supreme Court of the United States only affirmed the ruling of the State court, which is the rule of that court where there is no Federal question involved. So it amounts to no more than a decision of the Supreme Court of California against the repeated decisions of our own Supreme Court. And were we to admit that the distinction does not exist between the California case and this case, which we have pointed out, the question then is, shall we adhere to our own decisions, when we are not able to see any error in them, or shall we adopt the opinion of the court of California? We prefer to follow our own decisions, and are of the opinion that the corporate authorities of Scotland Neck were not authorized to pass the ordinance under consideration, and it is void.
There is error, and under the special verdict the defendant was entitled to an acquittal and discharge. (819) The judgment of the court below is
Reversed.