State v. McGraw

105 S.E.2d 659 (1958) 249 N.C. 205

STATE
v.
R. F. McGRAW.

No. 363.

Supreme Court of North Carolina.

November 19, 1958.

Baxter H. Finch and Raymer & Raymer, Statesville, for defendant appellant.

Atty. Gen. Malcolm B. Seawell and Asst. Atty. Gen. T. W. Bruton, for the State.

RODMAN, Justice.

Acting contrary to the provisions of a municipal ordinance is made a misdemeanor by statute, G.S. § 14-4. Notwithstanding the all-inclusive language of the statute, guilt must rest on the violation of a valid ordinance. If the ordinance is not valid, there can be no guilt. State v. Abernethy, 190 N.C. 768, 130 S.E. 619; State v. Prevo, 178 N.C. 740, 101 S.E. 370.

Defendant admits he acted as charged. He denies the power of the town to declare such act a crime because (1) the Legislature has not delegated such authority to the town, and (2) if delegated, such delegation would do violence to sections 7, 17, and 31 of Art. I of our Constitution.

We need only consider the question of the authority to enact the provisions which reserve to the town the exclusive right to set memorial markers and require the payment of a special charge for setting such markers not purchased from the town.

"A municipal corporation is a creature of the General Assembly. Ward v. Elizabeth City, 121 N.C. 1, 27 S.E. 993. Municipal corporations have no inherent power but can exercise such powers as are expressly conferred by the General Assembly or such as are necessarily implied by those expressly given. State v. Ray, 131 N.C. 814, 42 S.E. 960, [60 L.R.A. 634]; State v. McGee, 237 N.C. 633, 75 S.E.2d 783." Davis v. Charlotte, 242 N.C. 670, 89 S.E.2d 406, 409; Laughinghouse v. City of New Bern, 232 N.C. 596, 61 S.E.2d 802; Madry v. Scotland Neck, 214 N.C. 461, 199 S.E. 618; State v. Gulledge, 208 N.C. 204, 179 S.E. 883; G.S. § 160-1.

The town of Mooresville was created by c. LXXI, Private Laws of 1872-73. There is nothing in that Act relating to cemeteries. We have found no amendment to the charter of the town which expressly or impliedly authorizes the enactment here in question. None has been called to our attention.

Since no special authorization has been given to Mooresville, we look to statutes of statewide scope to ascertain if the power is included in the authority granted to all municipal corporations. An examination of pertinent statutes shows no specific authorizations.

If the power is to be implied, it must come from G.S. §§ 160-2(3), 160-200(22), 160-200(36) which permit towns to acquire lands for cemetery purposes, prohibit burials in any other places with authority to "maintain cemeteries" and "regulate the manner of burial in such cemetery," or from G.S. §§ 160-258 and 160-259 which authorize the creation of a fund for perpetually caring for and beautifying cemeteries.

Defendant does not challenge the power of the town to prescribe reasonable rules and regulations relating to the management of the cemetery including interment and disinterment of the dead, size of lots, location and number of graves on a particular lot, kinds, types and sizes of memorial monuments and markers, types and character of foundation for such monuments as may be erected, kind and size of shrubbery and other means used to beautify and sanctify the lots. He does not question the right of the town to engage in competition with him in selling memorial markers. He merely says that it is not necessary to the proper exercise of the power given for the town to exercise a monopoly in the business of setting memorial markers, a purely commercial enterprise, or by legislative fiat penalize its commercial competition.

That the charge is not an inspection fee required to insure compliance with rules fixing the manner of setting is evident from the testimony of the city manager, a witness for the State. He said: "In addition to selling grave lots, the Town of Mooresville is in the business of selling bronze markers and is in competition with other sellers of bronze markers. The Town is also in the business of setting markers in the cemetery * * *. If a dealer in memorials other than the Town sells a marker or memorial to an individual for a lot in this cemetery, the Town charges such dealer or the owner who purchases from that dealer, a setting charge for the right to set a marker in the cemetery. The charge is specified in different amounts according to the type of memorial that is sold."

The fact that 30% of such charge is allocated to the Perpetual Care Fund with remainder going to the General Fund cannot change the character of the charge as a method of creating an advantage to the town in its commercial enterprise of selling and setting markers, nor can it gain support from the statute which permits the creation of a Perpetual Care Fund. That statute limits the right to make the charge to the price fixed for the lot, a right which Mooresville has exercised; and this ordinance expressly provides that the Perpetual Care Fund shall not be used for the maintenance of grave markers.

The Legislature may authorize a municipal corporation to engage in a business for public benefit and to extend those services to citizens beyond its corporate limits. Kennerly v. Town of Dallas, 215 N.C. 532, 2 S.E.2d 538. Nonetheless, as said in Town of Grimesland v. City of Washington, 234 N.C. 117, 66 S.E.2d 794, 797: "But this legislative authority would not be regarded as conferring the right to exclude competition in the territory served. Having the right to engage in this business gives no exclusive franchise * * *"

As said in State of Ohio v. Helvering, 292 U.S. 360, 54 S. Ct. 725, 727, 78 L. Ed. 1307: "When a state enters the market place seeking customers it divests itself of its quasi sovereignty pro tanto, and takes on the character of a trader * * *"

Application of the rule is well illustrated in Slaughter v. O'Berry, 126 N.C. 181, 35 S.E. 241, 48 L.R.A. 442. There the municipality sought to imply authority to secure an economic advantage from specific authorization to engage in a particular business. Here specific authority to engage in the commercial enterprise has not been granted.

The stringency with which the rule limiting the application of a grant of authority to a municipality to engage in business for economic gain as generally applied is illustrated by McRae v. Selectmen of Town of Concord, 296 Mass. 394, 6 N.E.2d 366, 108 A.L.R. 1450 with annotations; Taylor v. Dimmitt, 336 Mo. 330, 78 S.W.2d 841, 98 A.L.R. 995; notes to Andrews v. City of South Haven, 187 Mich. 294, 153 N.W. 827, L.R.A.1916A, Ann.Cas. 1918B, 104.

We find no statute which in our opinion impliedly gives the town the authority claimed. Grave constitutional questions would be raised by any such statute.

Since the town was without authority to enact the challenged portion of the ordinance, it follows that noncompliance with this provision is not criminal.

Reversed.

PARKER, J., not sitting.