State v. Rhoney , 42 N.C. App. 40 ( 1979 )

ARNOLD, Judge.

Ch. 533, H.B. 535 of the 1975 N.C. Session Laws authorizes the Burke County School Board to “by ordinance prohibit, regulate, divert, control, and limit pedestrian, animal, or vehicular traffic and other modes of conveyance on its campuses.” The ordinance adopted by the School Board reads as follows:

(a) It shall be unlawful for any person to go upon or remain upon any property owned, leased, rented, or otherwise in possession or control of the Burke County Public Schools Board of Education by motor vehicle (as defined by North Carolina General Statute Sec. 20-4.01) including “mini-bikes” and “go-carts”, on foot, upon animals or by any other mode of conveyance, after sundown.

(b) This ordinance shall not apply to employees of the Burke County Public Schools Board of Education while acting within the scope and course of their employment; nor shall this ordinance apply to any participant in an extracurricular activity upon school property, when such activity has been approved in advance by the Superintendent of Schools.

The District Court found this ordinance unconstitutional upon the single ground that it gives the Superintendent of Schools authority to make exceptions to the application of the ordinance, an apparent reference to the second phrase of paragraph (b). The State argues that the correctness of this finding is the sole issue before us on appeal, while defendants would have us consider every possible ground of unconstitutionality of both the ordinance and the act of the General Assembly under which it was enacted.

The District Court Judge set out explicitly in his judgment the ground for his finding of unconstitutionality. At the hearing on appeal in Superior Court defendants attempted to argue other constitutional issues, but the Court, affirming the District Court, said:

COURT: Is this Judge Vernon’s judgment?

MR. BYRD: Yes sir.

COURT: I’m affirming that judgment.

The court in its judgment found the ordinance to be “an unconstitutional grant of legislative authority, among other things, in that it purports and grants the Superintendent of the Schools authority to make exceptions to the application of the Ordinance.” We believe it is clear that both the judgment and affirmance were grounded in the single constitutional issue of the authority of the Superintendent to make exceptions to the ordinance, and we decline to consider other constitutional issues which were not passed upon by the courts below. See State v. Dorsett, 272 N.C. 227, 158 S.E. 2d 15 (1967).

The parties cite to us Coastal Highway v. Turnpike Authority, 237 N.C. 52, 74 S.E. 2d 310 (1953), and Jackson v. Board of Adjustment, 275 N.C. 155, 166 S.E. 2d 78 (1969), for the proposition that while administrative powers may be delegated, legislative powers may not be. In both those cases, the challenged enactments delegated the power to determine whether a particular project was “in the public interest,” and the Court held that these delegations of legislative power were invalid.

The situation in the case now before us is quite different, however. The ordinance makes presence on school property after sundown unlawful, but excepts from the operation of the ordinance “any participant in an extracurricular activity upon school property, when such activity has been approved in advance by the Superintendent of Schools.” Although it is true that the Superintendent’s decision as to whether a particular extracurricular activity is approved will have the effect of determining when it is unlawful to be upon school property, it defies common sense to believe that he will approve or disapprove an activity simply for the purpose of making presence upon the school grounds illegal. Certainly considerations of benefit to the participants, appropriateness as a school function, etc. will be the deciding factors.

We find that this ordinance does not delegate either legislative or administrative power to the Superintendent, but instead defines when particular conduct will be unlawful by reference to an external standard, that is, whether a person is upon school property for an approved activity. This ordinance is not unconstitutional as a delegation of legislative authority to the Superintendent.

Reversed.

Judges MARTIN (Robert M.) and ERWIN concur.