State v. Atlas ( 1973 )

195 S.E.2d 496 (1973) 283 N.C. 165

STATE of North Carolina
v.
Frank ATLAS et al.

No. 21.

Supreme Court of North Carolina.

April 11, 1973.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Millard R. Rich, Jr., for the State.

Ervin, Horack & McCartha by C. Eugene McCartha, Charlotte, and J. Duane Gilliam, Fayetteville, for defendants.

LAKE, Justice.

The defendants' first assignment of error is to the refusal of the trial court to admit in evidence at the hearing on the motion to quash the warrants certain magazines which the defendant Atlas testified he purchased on a Sunday at a newsstand "in Fayetteville." The defendants' contention is that these magazines are obscene and, since, under the ordinance, publications of this nature can be sold at newsstands on Sunday, it cannot be said that the ordinance has a reasonable relation to its stated objective, which is "to provide for the due observance of Sunday as a day of rest, and to protect and promote the public health, the general welfare, safety and morals of the citizens."

Quite obviously, the defendants' characterization of these magazines as obscene is correct. Their sale on Sunday, or on any other day of the week, does nothing to promote the morals of the citizens of Cumberland County. It is equally obvious, upon the face of the ordinance, without any evidence of actual sales, that this ordinance expressly permits the sale on Sunday at newsstands of "papers and periodicals and accessories" without regard to the nature or quality of their contents. The contention that, since this is true, the county cannot promote the observance of Sunday as a general day of rest by requiring the closing on Sunday of stores and other places of business generally and forbidding the sale on Sunday of articles of clothing and other specified types of merchandise is, however, a non sequitur.

The clear purpose of the ordinance in question is to promote the public health and welfare by requiring the observance of Sunday as a day of rest from business activities generally. Newsstands and other specified types of business establishments are permitted by the ordinance to open and operate on Sunday, not because the merchandise sold in the excepted businesses is more or less conducive to good morals than clothing, furniture or building materials, but because, in the opinion of the Board of County Commissioners, access to reading material and the other excepted merchandise or activity is necessary to or, at least, conducive to the public's enjoyment of Sunday as a day of rest from normal business activities. In order for such an ordinance to withstand an attack upon its constitutionality as arbitrary or discriminatory, it is not necessary that the legislative body, in the same ordinance, prohibit everything which is detrimental to the public morals, health or safety.

For aught that appears in this record Cumberland County may have another ordinance which prohibits the sale of magazines of the type offered in evidence by the defendants, assuming for the sake of argument that the general state statute dealing with the dissemination of obscenity does not do so. This Court does not take judicial notice of the existence or the non-existence of county or municipal ordinances. Surplus Co. v. Pleasants, 263 N.C. 587, 591, 139 S.E.2d 892; State v. Clyburn, 247 N.C. 455, 461, 101 S.E.2d 295; Stansbury, North Carolina Evidence, 2d Ed., § 12.

Assuming, however, that there is no other county ordinance or state law which prohibits a newsstand in Cumberland County from selling on Sunday filth masquerading as art or literature, such circumstance does not show or tend to show the invalidity of an otherwise valid ordinance requiring the cessation of business activities in general on the day designated by the legislative body as a day of rest. The evidence offered by the defendants was as irrelevant to the issue before the court as would have been testimony that, on a given Sunday, a specified restaurant in the county served the witness food which was indigestible or otherwise unfit for human consumption.

Furthermore, the testimony of the defendant Atlas was that he purchased these publications at a newsstand "in Fayetteville." The ordinance, by its expressed terms, does not apply within the city limits of Fayetteville unless the governing body of the city, by resolution, has agreed thereto and nothing in the record suggests such action by the governing body of the City of Fayetteville. G.S. § 153-9(55), the source of the authority of the Board of County Commissioners to enact such ordinance, provides that such county ordinance shall not apply within the limits or jurisdiction of such municipality unless its governing body agrees thereto. The Board of County Commissioners having no legislative authority, with respect to this matter, over the territory within the city limits of Fayetteville, evidence of activities permitted on Sunday within the city does not show or tend to show that the county ordinance is arbitrary or discriminatory. The evidence offered by the defendants was, therefore, irrelevant and incompetent for this reason also.

A motion to quash is a method for testing the sufficiency of the warrant or indictment to charge a criminal offense, not a means for determining the guilt or innocence of the defendant with respect to the charge therein made. State v. Cooke, 248 N.C. 485, 103 S.E.2d 846. A defendant charged with the violation of a statute or ordinance may challenge the constitutionality of such statute or ordinance by a motion to quash the warrant or indictment, since there can be no sufficient statement of criminal offense in a charge of violation of an unconstitutional statute or ordinance. State v. Brewer, 258 N.C. 533, 129 S.E.2d 262; State v. Hales, 256 N.C. 27, 122 S.E.2d 768.

When the ground for the motion to quash is that the warrant or indictment fails to charge a criminal offense, whether this be due to a deficiency in the allegations of the warrant or indictment or due to the unconstitutionality of the statute or ordinance, the violation of which is charged, the motion to quash presents a question of law only and must be determined from consideration of the allegations in the warrant or indictment and the provisions of the statute or ordinance. State v. McBane, 276 N.C. 60, 170 S.E.2d 913. In such case the court is not permitted to consider extraneous evidence. State v. Vestal, 281 N.C. 517, 189 S.E.2d 152; State v. Lee, 277 N.C. 242, 176 S.E.2d 772; State v. Cooke, supra; State v. Andrews, 246 N.C. 561, 99 S.E.2d 745; State v. Cochran, 230 N.C. 523, 53 S.E.2d 663. Such cases are distinguishable from those in which the basis for the motion to quash is that the indictment was returned by an improperly constituted grand jury, or by a grand jury which proceeded unlawfully in considering the indictment against the defendant, in which cases evidence is properly received for the purpose of establishing or refuting the allegation of such irregularity. See: State v. Wright, 274 N.C. 380, 163 S.E.2d 897; State v. Yoes, 271 N.C. 616, 157 S.E.2d 386; State v. Colson, 262 N.C. 506, 516, 138 S.E.2d 121; State v. Wilson, 262 N.C. 419, 137 S.E.2d 109; State v. Inman, 260 N.C. 311, 132 S.E.2d 613; State v. Covington, 258 N.C. 495, 128 S.E.2d 822; State v. Linney, 212 N.C. 739, 194 S.E. 470.

In the present case we do not reach the question of whether a motion to quash lies where the contention is that a statute or ordinance, valid on its face, cannot be a proper basis for a criminal charge because it has been enforced or applied in a discriminatory manner or, if so, whether evidence may properly be received upon the hearing of such a motion. In State v. Underwood and Harkey, N.C., 195 S.E.2d 489, decided this day, these questions are considered and determined. In the present instance it is not contended that the ordinance of Cumberland County has been applied or enforced in a discriminatory manner in the territory to which it applies. The contention is that the ordinance in question is unconstitutional on its face because it permits certain business activities on Sunday while prohibiting the sale of clothing on Sunday. Consequently, the motion to quash presented a question of law only and the evidence offered by the defendants was not competent.

For each of the above reasons, the defendants' Assignment of Error No. 1 is without merit.

The second assignment of error is to the overruling of the motion to quash the warrant. We find no merit in this contention.

The constitutionality of this identical ordinance was before this Court in Whitney Stores v. Clark, 277 N.C. 322, 177 S.E.2d 418, the plaintiff there being the employer of the present defendants. We there held that the authority to enact such ordinance was conferred upon the boards of commissioners of the respective counties by G.S. § 153-9(55). We there rejected the contention that the ordinance is invalid in that it has no relationship to public health, general welfare, safety and morals, and discriminates unreasonably in its classifications of businesses and of the articles which may and those which may not be lawfully sold on Sunday. As we there noted, the provisions of this ordinance are essentially the same as those of the ordinance of the City of Raleigh, similarly attacked, and held valid in Kresge Co. v. Tomlinson and Arlan's Department Store v. Tomlinson, 275 N.C. 1, 165 S.E.2d 236, the ordinance of the City of Greenville, held valid in Clark's v. West, 268 N.C. 527, 151 S.E.2d 5, and the ordinance of the City of Winston-Salem, similarly attacked, and held valid in Charles Stores v. Tucker, 263 N.C. 710, 140 S.E.2d 370. It is also identical in all material respects with the ordinance of the City of Charlotte, similarly attacked, and held valid in Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E.2d 364. We find nothing in the contentions of the defendants in this case which was not fully considered and decided adversely to them by this Court in the foregoing cases.

Unconstitutional discrimination in a county ordinance requiring businesses generally to be closed on a specified day of the week, designated by the legislative body as a day of rest, and exempting from such requirement certain types of business is not shown by the fact that the ordinance of some other county or municipality does not contain identical exemptions from its general closing requirement. There is no closed category of businesses which the legislative body may exempt from such general closing requirement. It is sufficient that there is reasonable basis for belief that the operation on the day of rest of the excepted businesses is necessary or conducive to the enjoyment by the public of the designated day as a day of rest, and that the activities of the defendant are not. "Abstract symmetry" and "mathematical nicety" are not required of the legislative body in the making of such classifications of business activities. Clark's Charlotte, Inc. v. Hunter, supra; Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 144, 34 S.Ct. 281, 58 L.Ed. 539; People v. Friedman, 302 N.Y. 75, 96 N.E.2d 184. In the present case the defendants do not contend that any other person, firm or corporation, is permitted to sell clothing in Cumberland County on Sunday or that the defendants are forbidden to sell or are charged with selling on Sunday any article which any other person is permitted to sell under the terms of the ordinance or through the policies of those charged with its enforcement.

The motion to quash was properly denied.

Affirmed.