State v. Atlas ( 1972 )

GRAHAM, Judge.

The facts are not in dispute: On Sunday, 5 March 1972, defendants sold various items of clothing and wearing apparel while employed at Treasure City, a place of business owned by Whitney Stores, Inc. and located in Cumberland County outside the corporate limits and jurisdiction of any municipality. Section IA of the ordinance in question provides that it shall be unlawful for any person to sell, or offer or expose for sale on a Sunday, any clothing and wearing apparel, clothing accessories, and other enumerated items.

The principal question presented on this appeal is whether the court erred in overruling defendants’ motions to quash the warrants, made on the ground that the ordinance under which defendants were charged is unconstitutional. The constitutionality of this ordinance was considered by the Supreme Court in an action brought in 1970 by defendants’ employer and other parties. Whitney Stores v. Clark, 277 N.C. 322, 177 S.E. 2d 418. In that case, the Supreme Court affirmed a judgment of the Superior Court which had “ ‘adjudged and declared’ the ordinance ‘to be constitutional and in all respects valid,’ ” and noted that the ordinance was essentially the same as ordinances upheld in Kresge v. Tomlinson, and Arlan’s Dept. Store v. Tomlinson, 275 N.C. 1, 165 S.E. 2d 236; Clark’s v. West, 268 N.C. 527, 151 S.E. 2d 5; and Charles Stores v. Tucker, 263 N.C. 710, 140 S.E. 2d 370.

Under the authority of Whitney Stores v. Clark, supra, we overrule defendants’ contention that they were charged under an unconstitutional ordinance.

In support of their motions to quash the warrant, defendants attempted to introduce several publications which were purportedly purchased on a Sunday from a bookstand in Cumberland County. Defendants’ assignments of error challenging the exclusion of this evidence are overruled. The ordinance itself provides that newsstands may remain open on Sunday for the sale of papers, publications and other enumerated items; and also, that nothing in the ordinance “shall be construed to prohibit the publication or the sale of newspapers or magazines by newsstands or newsboys.” Consequently, the fact publications of any description could be purchased in Cumberland County on a Sunday was not in issue and the evidence tendered was immaterial.

Affirmed.

Judge Brock concurs. Judge Campbell dissents.