Davis v. City of Charlotte

89 S.E.2d 406 (1955) 242 N.C. 670

L. L. DAVIS, trading and doing business as Davis' Drive-In, Joseph Antoon and Raymond Kaleel, partners, trading and doing business as The Stork Drive-In, James Castanas and George Castanas, partners, trading and doing business as the Boar's Head Drive-In, J. S. Blackwelder, trading and doing business as Blackwelder's Barbecue, Lem Long, Jr., trading and doing business as Southside Drive-In Grill, Alonzo Mackins, trading and doing business as Oak's Grill, John P. Triantis, trading and doing business as Little White House Drive-In, L. E. Boyd and V. L. Towe, partners, trading and doing business as Plaza Grill, Lyndy's Grill, Inc., Chicken Box, Inc.
v.
The CITY OF CHARLOTTE, a municipal corporation, Frank N. Littiejohn, Chief of Police of the City of Charlotte, and Henry C. Severs, Chief Enforcement Officer of the ABC Board of Mecklenburg County.

No. 244.

Supreme Court of North Carolina.

October 12, 1955.

John D. Shaw, Charlotte, for defendant City of Charlotte.

BOBBITT, Justice.

Ordinarily, the validity of a municipal ordinance purporting to create a criminal offense may be challenged and tested only by way of defense to a criminal prosecution based thereon. Equity will not interfere by injunction to restrain the enforcement of such municipal ordinance on the ground of its alleged invalidity except when it is manifest that otherwise property rights or the rights of persons would suffer irreparable injury. Lanier v. Town of Warsaw, 226 N.C. 637, 39 S.E.2d 817; Loose-Wiles Biscuit Co. v. Town of Sanford, 200 N.C. 467, 157 S.E. 432. The court below, upon the facts found, concluded that injunctive relief was necessary to protect plaintiffs from irreparable injury to their property rights. No exception or assignment of error is addressed to this conclusion of law. Indeed, appellant specifically requests that the validity of the ordinance be considered on this appeal. Under these circumstances, the procedural question requires no further discussion. Compare Suddreth v. City of Charlotte, 223 N.C. 630, 27 S.E.2d 650.

We come now to consider Section 17-B, Article I, Chapter 19, of the City Code of Charlotte. The court below adjudged this ordinance invalid and restrained its enforcement to the extent stated above. In our opinion, the judgment entered is correct and must be affirmed.

A municipal corporation is a creature of the General Assembly. Ward v. City of Elizabeth City, 121 N.C. 1, 27 S.E. 993. Municipal corporations have no inherent powers but can exercise only 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.

"Municipal ordinances are ordained for local purposes in the exercise of a delegated legislative function, and must harmonize with the general laws of the state. In case of conflict the ordinance must yield to the state law." State v. Freshwater, 183 N.C. 762, 111 S.E. 161, 162, and cases cited therein. A decision of this Court in 1883 applied this well established principle when there was conflict between a general State statute and a municipal ordinance of the City of Goldsboro, both dealing with the sale of intoxicating liquor on Sunday. State v. Langston, 88 N.C. 692.

It may be conceded that the City of Charlotte, under its charter provisions and under G.S. § 160-52 and G.S. § 160-200(6, 7, 10), had implied authority to adopt the ordinance in controversy in the absence of legislation enacted by the General Assembly dealing directly with the subject. Bailey v. City of Raleigh, 130 N.C. 209, 41 S.E. 281, 58 L.R.A. 178; Paul v. Washington, 134 N.C. 363, 47 S.E. 793, 65 L.R.A. 902. But it is quite plain that the City of Charlotte cannot, by ordinance, make criminal or illegal any conduct that is legalized and sanctioned by the General Assembly. The ordinance, to the extent it conflicts with the general State law, is invalid. Lee v. Robertson Chemical Corp., 229 N.C. 447, 50 S.E.2d 181; Eldridge v. Mangum, 216 N.C. 532, 5 S.E.2d 721; State v. Prevo, 178 N.C. 740, 101 S.E. 370.

The Turlington Act prohibited the sale of beer. Public Laws of 1923, ch. 1; G.S. § 18-1 et seq. Modifications thereof include the Beverage Control Act of 1939. Public Laws of 1939, ch. 158; G.S. § 18-63 et seq. The sale of "beer" as defined in G.S. § 18-64(a), by persons who are licensed to do so, is expressly authorized. G.S. § 18-65, G.S. § 18-75, G.S. § 18-77.

State statutes fix the hours when the sale and consumption of beer on the licensee's premises are permitted. G.S. § 18-105, G.S. § 18-106, G.S. § 18-141.

G.S. § 18-72 provides: "Character of license.—License issued under authority of § 18-64, subsection (a) shall be of two kinds:

"(1) `On premises' license which shall be issued for bona fide restaurants, cafes, cafeterias, hotels, lunch stands, drug stores, filling stations, grocery stores, cold drink stands, tea rooms, or incorporated or chartered clubs. Such license shall authorize the licensee to sell at retail beverages for consumption on the premises designated in the license, and to sell the beverages in original packages for consumption off the premises.

"(2) `Off premises' license which shall authorize the licensee to sell at retail beverages for consumption only off the premises designated in the license, and only in the immediate container in which the beverage was received by the licensee.

"In a municipality the governing board of such municipality shall determine whether an applicant for license is entitled to a `premises' license under the terms of this article, and outside of municipalities such determination shall be by the board of commissioners of the county."

The licensee must pay both a State license tax and a license tax to the municipality. G.S. § 18-79, G.S. § 18-74.

The first finding of fact, quoted above, establishes that each of the plaintiffs has a valid "on premises" license. This being true, the plaintiffs are authorized to sell beer on their private premises as long as they do so in compliance with the law governing such sales. Nothing in the applicable State statutes suggests that the law is different depending upon whether sale or delivery "on premises" of the licensee is made by "car hops," waitresses, other lawful employees, or by the manager or proprietor in person. And, in the absence of a restrictive statutory definition, the word "premises" when applied to a Drive-In restaurant must be held to include the entire private property area designed for use by patrons while being served. The extent of the legislative authority conferred upon a municipality by G.S. § 18-107 is "to regulate and prohibit" the sale of beer from 11:30 p. m. on each Saturday until 7:00 a. m. on the following Monday.

If the present State statutes make difficult the detection and prosecution of conduct prohibited by G.S. § 18-78.1, such as sales to persons under 18 years of age, sales to intoxicated persons, etc., the General Assembly alone can determine what change, if any, should be made.

The enforcement of the ordinance provision is restrained only as to sales made on the private property, that is, "the premises," of the plaintiffs. Section 17-B, Article I, Chapter 19, of the City Code of Charlotte was adjudged legal, valid and enforceable, "as far as it affects and regulates the sale of beer at the curb of city streets to any person who, at the time of such purchase, is standing on, or in a car parked on, any portion of the city street."

Affirmed.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.