Treasure City of Fayetteville, Inc. v. Clark

134 S.E.2d 97 (1964) 261 N.C. 130

TREASURE CITY OF FAYETTEVILLE, INC., a corporation, on behalf of itself and such other persons, firms and corporations as are similarly affected by North Carolina General Statute 14-346.2,
v.
W. G. CLARK, Sheriff of Cumberland County.

No. 599.

Supreme Court of North Carolina.

January 17, 1964.

McDougle, Ervin, Horack & Snepp, Charlotte, for plaintiff appellant.

Clark & Clark, Heman R. Clark, and Lester G. Carter, Jr., Fayetteville, for defendant appellee.

Smith, Leach, Anderson & Dorsett, Raleigh, for North Carolina Merchants Assn., amicus curiae.

Warren C. Stack, Charlotte, for Clark's Charlotte, Inc., amicus curiae.

BOBBITT, Justice.

In G. I. Surplus Store, Inc. v. Hunter, 257 N.C. 206, 125 S.E.2d 764, this Court on May 23, 1962, held void the 1961 Act (S.L. 1961, Chapter 1156) codified as G.S. § 14-346.2 (1961 Supplement), on the ground it was "unconstitutionally vague, uncertain and indefinite." The 1963 Act now challenged by plaintiff as unconstitutional is entitled "AN ACT TO REWRITE G.S. 14-346.2 TO PROHIBIT CERTAIN BUSINESS ACTIVITIES ON SUNDAY." Even so, the 1963 Act is an entirely new, independent and complete statute.

As in G. I. Surplus Store, Inc. v. Hunter, supra, and for like reasons, this Court deems it appropriate to pass now upon the validity of the 1963 Act notwithstanding the general rule that the constitutionality of a statute may not be challenged in an action to enjoin its enforcement.

Plaintiff alleges and contends the 1963 Act is void on the ground, inter alia, it violates Article II, Section 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 1963 Act, within the portions of North Carolina to which it applies, regulates trade by prohibiting the sale on Sunday of certain articles of merchandise. For a definition of "trade," see State v. Dixon, 215 N.C. 161, 164, 1 S.E.2d 521, and Orange Speedway, Inc. v. Clayton, 247 N.C. 528, 533, 101 S.E.2d 406.

The crucial question is whether the 1963 Act is a "local, private or special act" as contended by plaintiff, or a general law, as contended by defendant. If a "local, private or special act," the 1963 Act, by the express provisions of Article II, Section 29, is void.

In McIntyre v. Clarkson, 254 N.C. 510, 119 S.E.2d 888, this Court, in opinion by Moore, J., discussed and defined local and special legislation in contradistinction to general laws. The legal principles there stated control decision as to the validity of the 1963 Act.

The 1963 Act does not apply to any portion of twenty-five counties, to wit, Avery, Currituck, Wilkes, Madison, Yancey, Watauga, Graham, Cherokee, Clay, Hyde, Henderson, Mitchell, Camden, Swain, Pamlico, Carteret, Brunswick, Dare, Haywood, Jackson, Macon, New Hanover, Pender, Polk and Transylvania. It does not apply to portions of four other counties, to wit, Chimney Rock Township of Rutherford County, Colly Township of Bladen County, and the portions of Ashe and Alleghany Counties within the right of way of the Blue Ridge Parkway. (Note; The separate provisions for the exemption of Edneyville Township of Henderson County, Blowing Rock Township of Watauga County and the portion of Watauga County within the right of way of the Blue Ridge Parkway may be disregarded as surplusage.)

The 1963 Act does not define a resort area or a tourist area. Nor does it contain a general statewide exemption of resort areas or tourist areas. It purports to classify specific counties or portions of specific counties and no other portions of North Carolina "as resort or tourist areas."

Mindful of the slogan, "Variety Vacationland," it is doubtful whether there is any county in North Carolina which does not have within its borders an area which could be reasonably described as a resort area or as a tourist area. Reference to the following matters of common knowledge (among many such instances) will suffice. Portions of Buncombe County fall within any reasonable definition of a resort area and of a tourist area. This is true as to portions of Moore County. Onslow County, to which the 1963 Act applies, and coastal counties exempted therefrom, contain areas equally identifiable as resort areas or tourist areas. Any list of outstanding tourist attractions in North Carolina would include the Old Salem Restoration, the North Carolina Museum of Art and Tryon Palace. Yet no portion of Forsyth, Wake or Craven Counties is exempted from the 1963 Act. It is clear there are many areas within the portions of North Carolina to which the 1963 Act applies which would fall within any reasonable definition of a resort area or a tourist area as well as or better than many of the areas exempted from its operation.

Moreover, the 1963 Act applies to the sale of articles of merchandise appropriate primarily to the needs of permanent residents rather than to the distinctive needs of patrons of a resort area or of a tourist area. It contains no prohibition with reference to food, drugs, lodgings, automotive supplies and services or other articles or services appropriate to the distinctive needs of tourists. Nor does it prohibit the operation of places of amusement, entertainment or recreation or the sale of merchandise appropriate to the distinctive needs of patrons thereof. Consideration of the articles of merchandise to which the 1963 Act applies (e. g., business or office furnishings) dispels the suggestion that there exists in a resort area or in a tourist area a need for the sale of such merchandise on Sunday sufficiently distinctive to constitute a reasonable basis for the separate classification of such areas with reference to the sale of such articles of merchandise. In McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393, cited in support of defendant's position, the constitutionality of a Maryland statute was challenged on grounds different from that now under consideration. Even so, it is noteworthy that the Maryland statute exempted from its operation in Anne Arundel County the retail sale of "merchandise essential to, or customarily sold at, or incidental to, the operation of" bathing beaches, amusement parks, etc.

The 1963 Act is not general because it does not apply to and operate uniformly "on all members of any class of persons, places or things requiring legislation peculiar to itself in matters covered by the law." State v. Dixon, supra, concurring opinion of Barnhill, J. (later C. J.); McIntyre v. Clarkson, supra. On the contrary, it applies to and operates only on merchants in designated counties or portions thereof and not on similarly situated merchants in other counties or portions thereof and no reasonable basis exists for the attempted classification of the exempted counties or portions thereof as resort areas or tourist areas. Cf. Sarner v. Union Twp., 55 N.J. Super. 523, 151 A.2d 208. Hence, the 1963 Act must be considered a local and special act in violation of Article II, Section 29, and therefore void. Accordingly, the judgment of the court below is reversed and the cause is remanded for further proceedings consistent with the law as stated herein.

Decision on the ground stated above renders unnecessary a discussion of other grounds on which plaintiff attacked the 1963 Act as unconstitutional.

Reversed and remanded.