State v. . Austin , 114 N.C. 855 ( 1894 )

AVERY, J., dissents, arguendo. The defendant was charged with the violation of an ordinance of the town. Upon the trial in the Superior Court, the jury found a special verdict, substantially as follows: Ordinance No. 62 is that no person who is under 21 years of age shall enter any barroom, etc., provided the same shall not apply to any minor who is married or who enters as the agent or servant of the parent or guardian. The (856) defendant was 20 years old and not married, and was not acting as agent or servant when he entered the barroom."

The defendant requested the court to charge that the ordinance was invalid. This was refused, and the defendant was held to be guilty, and appealed. The town of Monroe has power and authority "to make such by-laws rules and regulations for the better government of the town" as the commissioners thereof many deem necessary, provided the same are "not inconsistent with the laws of the land." The Code, sec. 3799.

This is an express grant of authority to the officers of this municipal corporation to exercise, with in the territory made subject to their control, the police power of the State; the only expressed restriction upon their action being that the rules and regulations made by them shall not be inconsistent with "the laws of the land."

Authorities need not be cited to prove that the legislature of the State may transfer to local municipal legislative bodies created by it the duty and responsibility of exercising a portion of its own police power. it seems to be conceded that the legislature has power to declare it unlawful for any minor to enter barroom, and thus protect them from the evil influences that might affect them if exposed to the temptations to which their presence in such resorts might expose them.

This concession is an admission that the ordinance in question is not repugnant in its provisions to either the Federal or State (857) Constitutions, for those fundamental enactments impose their restraining influence on the Legislature not less than on its creatures — the Legislative councils of the towns and cities of the commonwealth.

There being, then, no ground for maintaining that the ordinance under consideration is invalid because of its unconstitutionality, and the grant by the Legislature to the municipality of the power to exercise its police power in such manner as the commissioners may deem necessary, being clear and explicit, it only remains to inquire whether the enactment is consistent with the laws of the State and is reasonable. In the grant of police power to this municipality the restriction imposed is that its ordinance shall not be inconsistent with "the laws of the land." The expression, "the laws of the land," can only refer to the laws of this State — the statutes and common law — by the enforcement of which peace and good order are maintained throughout this State, and by which the conduct of all its citizens, whether they dwell in the cities and towns or not, is controlled. It is not permitted to these local legislative bodies in the State to exercise that portion of the police power intrusted to them upon subjects about which the Legislature has seen fit to enact laws (Washington v. Hammond, 76 N.C. 33; S. v. Brittain, 89 N.C. 574), nor to adopt ordinances that tend to obstruct the general policy of the State in the exercise of its police power as evinced by its statutes. In the treatise of Horr Bemis on Municipal Police ordinances, sec. 88, it is said: "According to the American theory of municipal existence, the legislation permitted to be exercised by municipal corporations is a mere delegation of the power of the State, and the ordinances created by virtue of this delegated authority are as much a part of the general scheme of legislation as are the laws of the State. It is, therefore, necessary that they should be consistent with the laws (858) of the State. . . . Municipalities have no power to repeal, directly or indirectly, the laws of the State, and their legislation must accord with the policy of the legislation of the State. If the only measure of authority were there terms of the charter, there would often be ordinances plainly within the granted power, but irreconcilable with some State law, or contrary to the settled policy of the State — a result neither lawful nor intended. Some charters, by express language, restrict the ordinances that may be passed to such as are consistent with the laws of the State; others are silent upon the subject, but the restriction exists, whether expressed or not, and becomes very important in its application.

We can discern no inconsistency between the provisions of the ordinance under consideration and any particular law of the State or the general policy of its legislation. Indeed, we find in it rather a commendable effort on the part of this local legislative body to supplement what the State, by its general legislation, has done to protect the young of the commonwealth. The State declares that one who deals on intoxicating liquors shall neither sell nor give to an unmarried minor any such liquors. The Code, sec. 1077. This ordinance declares that such minor shall not enter the barrooms that are subject to the control of the town. It helps and does not hinder the policy of the State upon this subject. All its tendencies are towards the prevention of the infraction of the law of the State and the preservation of peace and good order. Its rigid enforcement must be desired by the proprietors of saloons, for only danger and trouble can come to them from allowing such persons to frequent their places of business. S. v. Kittelle, 110 N.C. 560. It interferes with none of the saloonkeeper's rights, and is, indeed, contrived in part for his protection. It prevents minors from exposure to temptation places where they should not go. The (859) law which forbids any dealer in intoxicating liquors to give or sell to a minor such liquors is valid. Its validity could scarcely be assailed with any show of reason. Black on intoxicating Liquors, sec. 42. This ordinance rests upon the same foundation as that law — the right of the State, either by direct general legislation or through its municipal "home-rule" agencies, to shield youth from temptation. It has been held (says the author quoted above) at a law against permitting a minor to enter upon and remain in a retail liquor dealer's place of business is valid, and the State has power to _____ and enforce such a law, even in disregard of the parent's wishes, when its object and tendency are to protect the child. Goldstitcher v. Ford, 62 Tex. 385.

What has been said above seems a sufficient refutation of the assertion that the ordinance is unreasonable, oppressive and discriminating. It seems to us a wise and wholesome restraint upon the youth of the community, made in their interest, as well as that of the law-abiding keepers of the barrooms. It is not oppressive.

The police of our cities and towns — officers charged with the duty of preventing offenses as well as of arresting offenders — should have the power and authority to prevent youth from entering saloons. They can derive such authority only from such ordinances. It is not unlawfully discriminating. It applied to all unmarried minors, and is no more obnoxious to this objection than is the section of the code mentioned above and other laws which are made to protect and control of the youth of the land. While it is true that all grants of power to municipal corporations should be strictly construed, and that all doubts should be resolved against the authority of the corporation, it is also true (860) that where, as in this case, the grant of power is plain and unequivocal, courts will not interfere with, control or nullify the acts of the officers of the municipality, except for most cogent reasons. The contrary course would bring about an unseemly intermeddling of the judicial department of the government with the established agencies of the legislative department — the legislative councils of towns and cities — and such intermeddling could but have the effect of hampering the action of those bodies and retarding the development of such communities.

If fraud, dishonesty or oppression is charged against them, courts will be swift to investigate the charge, and to correct the evil, if found to exist. But other matters, involving mere questions of expediency and the judgment, must be decided in another way. We adopt, as applicable here, the language used by Judge Daniel in Hellen v. Noe, 25 N.C. 493: "If a majority of the citizens of the town deem the ordinance impolitic or injurious to the people of the corporation, they have the power in their own hands to remedy the evil; but we cannot say that this ordinance is against the general law or is in itself unreasonable."

No error.