Whitney Stores, Inc. v. Clark

177 S.E.2d 418 (1970) 277 N.C. 322

WHITNEY STORES, INC., t/a Treasure City and Gaylord of Fayetteville, Inc., t/a Gaylords, on behalf of themselves and such other persons, firms and corporations as are similarly affected by "An Ordinance Concerning the Observance of Sunday as a Uniform Day of Rest in Cumberland County"
v.
W. G. CLARK, Sheriff of Cumberland County, H. E. Ray, Chairman, and J. McN. Gillis, M. M. Beard, Luther Packer and E. J. Edge, Jr., Commissioners for Cumberland County, North Carolina.

No. 13.

Supreme Court of North Carolina.

November 18, 1970.

Ervin, Horack & McCartha, by C. Eugene McCartha, Charlotte, for plaintiff appellants.

Clark, Clark & Shaw, by Heman R. Clark; and McCoy, Weaver, Wiggins, Cleveland & Raper, by L. Stacy Weaver, Jr., Fayetteville, for defendant appellees.

BOBBITT, Chief Justice.

Affidavits offered by plaintiffs and received in evidence without objection contain factual statements to the effect the enforcement of the Ordinance will subject plaintiffs to irreparable injury and financial loss. In recognition of well-established legal principles, Kresge Co. v. Tomlinson, 275 N.C. 1, 8, 165 S.E.2d 236, 240, and cases cited, defendants do not contest plaintiffs' standing and right to challenge the constitutionality of the Ordinance.

The question for decision is whether the Ordinance is unconstitutional on the grounds on which plaintiffs attack it. Kresge Co. v. Tomlinson, supra at 9, 165 S.E.2d at 241, and cases cited.

The General Assembly, exercising the police power of the State, may legislate for the protection of the public health, safety, morals and general welfare of the people. Sunday observance statutes and municipal ordinances derive their validity from this sphere of legislative power. State v. McGee, 237 N.C. 633, 75 S.E.2d 783, and cases cited. Sunday observance ordinances adopted in the exercise of the police power conferred by the General Assembly upon cities and towns by G.S. § 160-52 and G.S. § 160-200(6), (7) and (10), have been upheld by this Court. Raleigh Mobile Home Sales v. Tomlinson, 276 N.C. 661, 174 S.E. 2d 542, and cases cited. The Ordinance under consideration can be upheld only if adopted in the exercise of the police power conferred by the General Assembly by the 1969 Act codified as G.S. § 153-9(55).

Subject to constitutional limitations, the power of the General Assembly to delegate to county commissioners the authority to adopt ordinances in the lawful exercise of the police power is well established. Jackson v. Guilford County Board of Adjustment, 275 N.C. 155, 162-163, 166 S.E.2d 78, 83, and cases cited.

Predicated on the proposition that county commissioners have no inherent legislative powers, High Point Surplus Co. v. Pleasants, Sheriff, 264 N.C. 650, 654, 142 S.E.2d 697, 701, plaintiffs, as their first ground of attack, assert that the provisions of the 1969 Act do not confer on county commissioners authority to enact Sunday observance ordinances.

Prior to the 1969 Act, G.S. § 153-9(55) was the codification of Chapter 1060, Session Laws of 1963, entitled "AN ACT TO AMEND G.S. 153-9, SO AS TO GIVE BOARDS OF COUNTY COMMISSIONERS CERTAIN REGULATORY POWERS." The new paragraph added to G.S. § 153-9 by the 1963 Act provided: "55. Regulate and Prohibit Certain Activities. —In that portion of the county, or any township of the county, lying outside the limits of any incorporated city or town, or lying outside of the jurisdiction of any incorporated city or town, to prevent and abate nuisances, whether on public or private property; to supervise, regulate, or suppress or prohibit in the interest of public morals, public recreations, amusements, and entertainments; and to define, prohibit, abate, or suppress all things detrimental to the health, morals, comfort, safety, convenience and welfare of the people including but not limited to the regulation and prohibition of the sale of goods, wares and merchandise on Sunday; and to make and enforce any other types of local police, sanitary, and other regulations; provided, that the board of county commissioners may make such regulations applicable within the limits of any incorporated city or town, or within the jurisdiction of any incorporated city or town, whose governing body, by resolution, agrees to such regulation, and during such time as the governing body continues to agree to such regulation. * * *" (Our italics.) The 1963 Act specifically provided that it did not apply to forty-eight named counties.

Pursuant to the provisions of the 1963 Act, the Board of Commissioners of Wake County, on March 2, 1964, adopted an ordinance or regulation which purported to regulate "Sunday Sales of Goods, Wares and Merchandise"; and, on the same date, the City of Raleigh adopted a resolution agreeing to the regulation. The 1963 Act was held invalid and the enforcement of the Ordinance and Resolution adopted pursuant thereto was enjoined. High Point Surplus Co. v. Pleasants, Sheriff, supra. Decision was based on the proposition that the 1963 Act regulated trade; that, since it did not apply to forty-eight counties, it was a local act; and that, being a local act regulating trade, it contravened Article II, Section 29, of the Constitution of North Carolina.

The 1969 Act, which rewrote G.S. § 153-9(55), in part provides: "(55) To Adopt Ordinances for the Better Government of the County.—To adopt ordinances to prevent and abate nuisances, whether on public or private property; ordinances supervising, regulating, or suppressing or prohibiting in the interest of public morals, comfort, safety, convenience and welfare, public recreations, amusements and entertainments, and all things detrimental to the public good; and ordinances in exercise of the general police power not inconsistent with the Constitution and laws of the State or the Constitution and laws of the United States. * * * Ordinances adopted pursuant to this subdivision shall apply throughout the county, except that such ordinances shall not be applicable within the corporate limits or jurisdiction of any municipality which has conducted the most recent election required by its charter or the general law, whichever is applicable, unless the governing body thereof shall, by resolution, agree to such ordinance. * * *"

The 1969 Act conferred upon the board of commissioners of every county, for the better government of the county, the power to adopt ordinances "in exercise of the general police power," applicable to all portions of the county outside the corporate limits or jurisdiction of municipalities.

Plaintiffs contend the omission from the 1969 Act of the words, "including but not limited to the regulations and prohibition of the sale of goods, wares and merchandise on Sunday," which had appeared in the 1963 Act, indicates the General Assembly did not intend that the county commissioners should have power to enact Sunday observance ordinances. This contention is unrealistic and unsound. The 1969 Act does not confer or withhold authority in respect of specific activities; on the contrary, it confers authority to enact ordinances in the exercise of the general police power. In this respect, the 1969 Act is similar to the statutes which confer general police power upon cities and towns.

Plaintiffs assert, as their second ground of attack, that the 1969 Act, which regulates trade, is a local act in contravention of Article II, Section 29, of the Constitution of North Carolina, because it enables the county commissioners of a single county, e. g., Cumberland, to adopt a Sunday ordinance notwithstanding the commissioners of all or certain of the other counties may not see fit to adopt such an ordinance. The reasons for the adoption of Article II, Section 29, are set forth fully in the Report of Albert Coates, Director of the Institute of Government, to the Commission on Public-Local and Private Legislation authorized by the 1949 General Assembly, appearing in the February-March, 1949, issue of Popular Government. Repetition is unnecessary. It is noteworthy that the Coates' Report is entitled: "The Problem of Private, Local, and Special Legislation and City and County Home Rule in North Carolina."

The 1969 Act is a Home Rule statute, applicable throughout the State. It enables the county commissioners of every county to enact ordinances in the exercise of the general police power within the prescribed territory just as the cited statutes enable the governing bodies of cities and towns to enact ordinances in the exercise of the general police power within their corporate limits. These statutes, G.S. § 160-52 and G.S. § 160-200(6), (7) and (10), are upheld as general laws and therefore valid notwithstanding they regulate (Sunday) trade. State v. Smith, 265 N.C. 173, 179, 143 S.E.2d 293, 298, and cases cited. We hold that the 1969 Act is a general law and therefore does not contravene Article II, Section 29, of our Constitution.

Plaintiffs assert, as their third ground of attack, that, assuming the applicability and validity of the 1969 Act, the Ordinance is invalid because it "has no relationship to the public health, general welfare, safety and morals of the citizens of Cumberland County and is arbitrary, unreasonable and discriminatory in its classification of businesses that may not be kept open on Sunday and the articles that may not be lawfully sold, offered or exposed for sale on Sunday in that it does not uniformly operate on all business in Cumberland County and does not prohibit all business activity in Cumberland County on Sunday and, therefore, violates Article I, Section 17, of the Constitution of the State of North Carolina, and the Fourteenth Amendment to the Constitution of the United States." Neither in their complaint nor in their evidence do plaintiffs indicate what provision(s) of the Ordinance they consider a basis for this broadside attack upon it. The provisions of this Ordinance are essentially the same as in the ordinances sustained by this Court in Kresge Co. v. Tomlinson, supra, and in Charles Stores v. Tucker, 263 N.C. 710, 140 S.E.2d 370, and in Clark's Greenville v. West, 268 N.C. 527, 151 S.E.2d 5.

At the hearing below, the portions of the minutes of the meetings of the Board of County Commissioners held October 20, November 3 and December 12, 1969, and January 5, 1970, pertaining to the adoption of the Ordinance, were offered and received in evidence. Plaintiffs, in their brief, contend these minutes indicate the principal proponents for adoption of the Ordinance were competing retail merchants. It appears from these minutes that those who spoke for adoption of the Ordinance stated that a majority of the retail merchants and of their employees preferred that their stores be closed on Sunday "to allow as many people as possible to use this day for rest, visits, and recreation." Two of those favoring adoption of the Ordinance spoke as representatives of a group known as "Citizens Committee for Sunday Observance." It is noteworthy that counsel for the present plaintiffs spoke in opposition to the adoption of the Ordinance. Be that as it may, if the Board of Commissioners does not exceed its delegated or constitutional authority, "the courts are not concerned with the motives, wisdom, or expediency which prompt its actions." Clark's Greenville v. West, supra at 531, 151 S.E.2d 8, and cases cited.

The judgment of the court below, which "adjudged and declared" the Ordinance "to be constitutional and in all respects valid," and which dissolved the preliminary injunction theretofore entered, is affirmed. The supplemental order, which has restrained enforcement of the Ordinance "pending a final determination of this cause," is hereby vacated as of the date of the filing of this opinion.

Judgment affirmed; supplemental order vacated.