State v. Chestnutt , 241 N.C. 401 ( 1955 )

85 S.E.2d 297 (1955) 241 N.C. 401

STATE
v.
James F. CHESTNUTT, Bill Collins, Roy Wall, Jr.

No. 436.

Supreme Court of North Carolina.

January 14, 1955.

Huger S. King, Greensboro, for defendants-appellants.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. Ralph Moody, and Charles G. Powell, Jr., and Gerald F. White, Members of Staff, Raleigh, for the State.

BOBBITT, Justice.

Each warrant adopts the phraseology of Ch. 177, Session Laws of 1949, which, in defining the conduct declared to constitute a misdemeanor, provides: "Section 1. It shall be unlawful for any person, firm, or corporation to engage in, promote, or in anywise participate in any motorcycle or other motor vehicle race or races on Sunday in Wake County, North Carolina."

It is noteworthy that the warrant uses the conjunctive "and" where the statute uses the disjunctive "or." The draftsman of the warrant was well advised. State v. Albarty, 238 N.C. 130, 76 S.E.2d 381.

The statute does not disclose a purpose to regulate labor or trade. The purpose of the promotion may be recreation, sport or charity; or it may be a business venture, for profit. The participants may be volunteers or compensated, amateurs or professionals. The race may be widely advertised, drawing large crowds; or it may arise upon a sudden challenge and be known and of interest only to the participants. The statute is thus characterized by its caption: "An Act Prohibiting Motorcycle and Motor Vehicle Races on Sunday in Wake County." Since the statute prohibits promotion of and participation in all motor vehicle races on Sunday in Wake County, the undisputed evidence is that the defendants violated the statute as charged in the warrants. Neither the statute nor the warrants refer to "labor," "trade," "business venture," "compensation," or other words suggesting that the commercialization of motor vehicle races as distinguished from the motor vehicle races themselves was what the General Assembly purposed to ban.

The acts charged in the warrants are violations of the statute. The motions to quash the warrants and in arrest of judgment were properly overruled, there being no defect appearing on the face of the pleading, verdict or other part of the record. State v. Cochran, 230 N.C. 523, 53 S.E.2d 663. Indeed, one discovers the factual basis for the defendants' position only by consideration of the evidence; and the assignment of error available to defendants is that addressed to the overruling of defendants' motions for judgment as in case of nonsuit.

It appears from the evidence that defendant Chestnutt, through a business corporation, promoted automobile racing in Wake County, arranging for such races, employing participants, selling admission tickets, etc., as a business venture, for profit; and it appears from the evidence that defendants Collins and Wall participated in an automobile race held Sunday, May 9, 1954, in Wake County, under the promotion and supervision of defendant Chestnutt, under an arrangement whereby each was paid for his services in so participating.

The sole ground of defendants' appeal is that the statute is violative of Art. II, sec. 29, of the Constitution of North Carolina, which, in pertinent part, provides: "The General Assembly shall not pass any local, private, or special act or resolution * * * regulating labor, trade, mining, or manufacturing; * * *. Any local, private or special act or resolution passed in violation of the provisions of this section shall be void. The General Assembly shall have power to pass general laws regulating matters set out in this section."

The General Assembly, exercising the police power of the State, may legislate for the protection of the public health, safety, morals and general welfare of the people; and Sunday observance statutes and municipal ordinances derive their validity from this sphere of legislative power. State v. McGee, 237 N.C. 633, 75 S.E.2d 783, and cases cited. And, prior to the effective date of Art. II, sec. 29, N.C.Constitution, statutes imposing prohibitions, restrictions and burdens in certain localities, not in conflict with any general criminal statute dealing with the same subject matter, were upheld. See, Taylor v. Racing Ass'n, 241 N.C. 80, 84 S.E.2d 390. The modification wrought by Art. II, sec. 29, is that now a local, private or special act, dealing with designated subjects, is void as violative of this section of our organic law.

Thus the appeal focuses attention upon this question: Conceding, arguendo, that the statute, directly affecting conduct in a single county, is a local act, State v. Dixon, 215 N.C. 161, 1 S.E.2d 521, is it an act regulating labor or trade within the meaning of Art. II, sec. 29? Were the statute directed solely against labor, e. g., compensated employment, or trade, e. g., business ventures, for profit, in relation to the conduct of motor vehicle races on Sunday in Wake County, the question posed would be serious indeed. But where the statute in sweeping terms bans an activity, to wit, all motor vehicle races on Sunday in Wake County, making it a misdemeanor to promote or engage in the proscribed activity, without regard to the commercial or noncommercial character of the activity, the fact that these defendants promote and engage in such activity for profit and for compensation puts them in no better position than those who promote and engage in such activity without reference to profit or compensation.

Conceding the power of the General Assembly to ban motor vehicle races on Sunday in Wake County, the fact that the defendants cannot engage for profit or compensation (or otherwise) in such prohibited activity does not convert the statute into one regulating labor or trade within the meaning of Art. II, sec. 29. If the statute violates Art. II, sec. 29, it is void; otherwise, it is valid. It cannot be valid and enforceable as to non-commercialized motor vehicle races on Sunday in Wake County and invalid and unenforceable as to such races when conducted on a commercialized basis. We regard the statute as placing a ban upon a specified activity, to wit, motor vehicle races on Sunday in Wake County, rather than as a regulation of labor or trade in which the defendants and others are privileged to engage.

In upholding the constitutionality of Ch. 177, Session Laws of 1949, against the challenge of invalidity based on its alleged violation of Art. II, sec. 29, we are mindful of the rules of construction epitomized by Stacy, C. J., in State v. Lueders, 214 N.C. 558, 561, 200 S.E. 22, 24, in these words: "In considering the constitutionality of a statute, every presumption is to be indulged in favor of its validity."

Without intimation or suggestion that Ch. 177, Session Laws of 1949, is subject to successful attack on other grounds, we note that we have considered it only in relation to the challenge urged by the defendants throughout the proceedings and made the basis of their brief, namely, its alleged violation of Art. II, sec. 29. The challenge on this ground being unsuccessful, the result is that the judgments must be affirmed; and it is so ordered.

Affirmed.

JOHNSON, J., took no part in the consideration or decision of this case.