Variety Theatres, Inc. v. Cleveland County

BRITT, Judge.

Appellant contends the ordinance in question is not authorized by the cited session law. We do not agree with this contention. G.S. 153-9(55) concerns the powers of county commissioners in the general exercise of police powers. Pursuant to this statute Senate Bill 888, a local bill, was enacted as Chapter 1062 of the 1971 Session Laws. Admittedly the wording of the session law is somewhat awkward and less than desirable but we hold that it authorizes the ordinance as passed by the Cleveland County Commissioners.

Chapter 1062 of the 1971 Session Laws provides:

The Board of Commissioners of Cleveland County shall have authority under G.S. 153-9(55) to adopt ordinances regulating any drive-in motion picture theaters which are or shall be established, operated or maintained in the vicinity of any public street or highway in such manner that the surface of such theater screen upon which pictures are being projected is not visible to any person operating a motor vehicle upon such street or highway.

It is settled law that a statute must be construed as written. State v. Wiggins, 272 N.C. 147, 158 S.E. 2d 37 (1967), cert. den. 390 U.S. 1028; In re Duckett, 271 N.C. 430, 156 S.E. 2d 838 (1967). However, where a statute is ambiguous, resort must be had to judicial construction to ascertain the legislative will. Young v. Whitehall Co., 229 N.C. 360, 49 S.E. 2d 797 (1948). The courts will control the language to give effect to the legislative intent. Ikerd v. R.R., 209 N.C. 270, 183 S.E. 402 (1936). Where a statute must be construed to carry out the legislative intent, that intent must be found from the language of the act, its legislative history and circumstances surrounding its adoption which will throw light upon the evil sought to be remedied. Milk Commission v. Food Stores, 270 N.C. 323, 154 S.E. 2d 548 (1967); D & W, Inc. v. Charlotte, 268 N.C. 577, 151 S.E. 2d 241 (1966). When the session law in the instant case is considered in that light it is obvious that the' concluding language, “ ... in such manner that the surface of such theater screen upon which pictures are being projected is not visible to any person operating a motor vehicle upon such street or highway” relates back to the beginning language, “ (t)he Board of Commissioners of Cleveland County shall have authority under G.S. 153-9(55) to adopt ordinances regulating any drive-in motion picture theaters . . . . ” The concluding language should not be read as referring to the intervening subordinate adjective clause, namely, “which are or shall be established, operated or maintained in the vicinity of any public street or highway ...” ; such a reference would completely negative the intent of the legislature.

We hold that the session law as above construed fully authorizes the challenged ordinance.

Appellant also contends that the ordinance is unconstitutional on several grounds. We find no basis on any grounds for agreeing with appellant. When the constitutionality of an ordinance is attacked it will not be declared unconstitutional unless clearly so and every reasonable intendment will be made to sustain it. Cab Co. v. Shaw, 232 N.C. 138, 59 S.E. 2d 573 (1950). G.S. 153-9(55) delegates to the counties the general police power which would support the ordinance in question. The session law in awkward but reasonably clear language specifically gave the Cleveland County Commissioners authority pursuant to G.S. 153-9(55) to pass such an ordinance. The ordinance was directed specifically at all drive-in motion picture screens in the county and outside of certain municipalities which can be seen from streets and highways. The ordinance in no way directly or indirectly attempted to control the content of what is shown on the screens. It was left entirely to the theater owners as to how to comply with the law. It dealt directly and narrowly with the highway safety hazard involved. Therefore, appellant’s assignments of error as to the constitutionality of the ordinance involved based on unconstitutional censorship, regulation of a preferred freedom and a standardless delegation of authority are not effective on these facts. Assuming, arguendo, that the ordinance regulates a preferred freedom it meets the test of Shapiro v. Thompson, 394 U.S. 618, 22 L.Ed. 2d 600, 89 S.Ct. 1322 (1969) in being a compelling governmental interest and has accomplished this means without affecting any broader area than necessary for the general well being and safety of the public.

We have carefully considered all of appellant’s assignments of error but find them without merit.

The judgment of the superior court is

Affirmed.

Judge Campbell concurs. Chief Judge Mallard dissents.