State v. Furio

148 S.E.2d 275 (1966) 267 N.C. 353

STATE
v.
Vincent FURIO.

No. 664.

Supreme Court of North Carolina.

May 25, 1966.

Atty. Gen. T. W. Bruton, by Staff Atty. Andrew A. Vanore, Jr., Raleigh, for the State.

Schoch, Schoch & Schoch, High Point, for defendant appellee.

LAKE, Justice.

It will be noted that in each case the affidavit upon which the warrant was issued, and which is made a part of the warrant by reference, charges the defendant with maintaining a motion picture screen "within the City Limits of High Point, or within one mile of said City Limits, or within High Point, Deep River, or Jamestown Township," in violation of the ordinance of the city of High Point. [Emphasis added.]

An incorporated city or town is an agency created by the State. It has no governmental power or authority except such as has been granted to it by the Legislature, expressly or by necessary implication from the powers expressly conferred. G.S. § 160-1; State v. Byrd, 259 N.C. 141, 130 S.E.2d 55; Cox v. Brown, 218 N.C. 350, 11 S.E.2d 152. It has no inherent police powers. State v. Dannenberg, 150 N.C. 799, 63 S.E. 946.

While the Legislature may confer upon a municipal corporation the power to enact ordinances having effect in territory contiguous to the corporation, in the absence of the grant of such power a city or town may not, by its ordinance, prohibit acts outside its territorial limits or impose criminal liability therefor. Smith v. City of Winston-Salem, 247 N.C. 349, 100 S.E.2d 835; Holmes v. City of Fayetteville, 197 N.C. 740, 150 S.E. 624; State v. Eason, 114 N.C. 787, 19 S.E. 88, 23 L.R.A. 520. No grant of authority to the city of High Point to project beyond its territorial limits the effect of an ordinance such as that here in question has been brought to our attention. There is in the ordinance nothing to suggest that it was intended by the City Council to apply to acts beyond the city limits. Even if this ordinance be valid within the city, it cannot and does not forbid or make punishable anything done beyond the territorial limits of the city.

The warrant does not charge the defendant, unequivocally, with the doing of the acts therein specified within the city. It charges that he did the act within the city limits, where it is a criminal offense, assuming the ordinance to be valid, or that he did the act outside the city, where it is not a criminal offense. This is not a matter of venue or of the jurisdiction of the Municipal Court of High Point. The place at which the alleged act was committed, if it was done, determines its criminality or lack of criminality, assuming the validity of the ordinance. The warrant, therefore, on its face fails to charge the commission of a crime.

Turning to the ordinance, itself, we cannot agree with the contention of the State that the intent and purpose of the ordinance was to promote safety upon the streets and highways by the elimination of sights which might distract the attention of drivers of automobiles. The obvious intent of the ordinance was to protect the right of the people of the city and visitors thereto, to drive or walk along its streets, alone or with their families and friends, and to permit their children to do so, without having flaunted in their faces language and pictures offensive to the sense of decency of any normal individual. The purpose of the ordinance is commendable but its terminology is not.

On the other hand, we do not hold, as the defendant would have us do, that the ordinance is void for the reason that the General Assembly has preempted this field by the enactment of G.S. §§ 14-189, 14-189.1, 14-189.2 and 14-190, or for the reason that by the enactment of G.S. § 14-191 the Sheriff of Guilford County is vested with the sole authority to determine what pictures or words may be displayed within the county. A municipal corporation, being the creature of the State, cannot forbid an act which a statute, state-wide in its application, permits to be done. Staley v. City of Winston-Salem, 258 N.C. 244, 128 S.E.2d 604. Likewise, where the Legislature has enacted a statute making an act a criminal offense, a city may not adopt an ordinance dealing with the same conduct. State v. Dannenberg, supra; State v. Langston, 88 N.C. 692. We do not interpret G.S. §§ 14-189, 14-189.1 and 14-189.2 as granting state-wide permission to publish or display all pictures and writings not therein forbidden, or to construct or maintain a screen or other structure upon which pictures of nude or semi-nude persons are projected. Nor can it be fairly implied from these statutes that the Legislature intended to preempt the entire subject of obscene displays and publications so as to forbid a city to enact an ordinance, otherwise within its authority, which forbids publications or displays neither forbidden nor permitted by these statutes. This ordinance undertakes to forbid acts not forbidden or permitted by these statutes.

G.S. § 160-200(6) confers upon the city power "to supervise, regulate, or suppress, 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, and all nuisances and causes thereof." The same section provides in clause (7) that a city shall have power to enact such ordinances as are "expedient for maintaining and promoting the peace, good government, and welfare of the city, and the morals and happiness of its citizens, and for the performance of all municipal functions."

It is, however, well settled that a statute, or an ordinance, may be void for the uncertainty, vagueness or indefiniteness of its prohibitions. State v. Atlantic Ice & Coal Company, 210 N.C. 742, 188 S.E. 412; State v. Morrison, 210 N.C. 117, 185 S.E. 674. In State v. Hales, 256 N.C. 27, 122 S.E.2d 768, 90 A.L.R. 2d 804, Parker, J., now C. J., speaking for the Court, and quoting from Wharton's Criminal Law and Procedure, Vol. I, § 18, said:

"A criminal statute must be definite as to the persons within the scope of the statute and the acts which are penalized. If it is not definite, the due process clause of State Constitutions and of the Fifth and Fourteenth Amendments of the Federal Constitution, whichever is applicable, is violated. If the statute is so vague and uncertain that a reasonable man would be compelled to speculate at his peril whether the statute permits or prohibits the act he contemplates committing, the statute is unconstitutional. The legislature, in the exercise of its power to declare what shall constitute a crime or punishable offense, must inform the citizen with reasonable precision what acts it intends to prohibit, so that he may have a certain understandable rule of conduct."

In State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E.2d 870, Moore, J., speaking for the Court, said:

"[A]ppellants quote at length from 14 Am.Jur., Criminal Law, sec. 19, pp. 773-4, as follows:

"``* * * A statute that either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law.' This is unquestionably a statement of sound principles."

The warrant in this case does not charge the defendant with projecting or causing to be projected, or permitting to be projected any picture. The charge against him is that he "did maintain a motion picture screen upon which was projected, nude and semi-nude pictures of men and women," in such a manner as to be visible to the general public, using certain streets in High Point. As above noted, it does not allege that the screen, upon which the pictures were projected, was within the city limits.

The ordinance in question presents many problems of construction to the court seeking to apply it and to the person, firm or corporation seeking to determine what he or it may do without violating its provisions. For example: Where must a sign, billboard, motion picture screen or other structure be located in order to be one constructed "along any street or highway"? If the screen, or other structure is visible to persons using the highway, but the picture projected thereon is not, is the construction or maintenance of the screen forbidden by this ordinance? What constitutes maintaining a screen within the meaning of this ordinance? Is the screen or other structure maintained by the lessor or by the lessee thereof or by both of them, within the meaning of this ordinance? Has one who "maintains" a moving picture screen, or other structure, violated this statute if another person, without his knowledge or consent, projects, paints, or displays thereon pictures of nude or semi-nude persons? Does the prohibition against the display of semi-nude pictures apply to pictures not generally regarded as "vulgar, indecent or offensive," such as a billboard advertisement of bathing suits or a moving picture of a swimming meet? Does the ordinance forbid the posting upon a billboard of a New Year's greeting bearing the customary symbol of the new year?

While it is highly improbable that the "nude and semi-nude pictures of men and women," alleged in the warrant to have been projected upon the screen, which is alleged to have been maintained by the defendant, would have been put by any normal person into the category of the innocent and inoffensive, the defendant may not be prosecuted for the violation of an ordinance so vague and indefinite as the one in question.

The warrants were properly quashed.

Affirmed.

MOORE, J., not sitting.