{ "id": 8551603, "name": "STATE OF NORTH CAROLINA v. KENNETH R. GREENWOOD", "name_abbreviation": "State v. Greenwood", "decision_date": "1971-11-17", "docket_number": "No. 7128SC519", "first_page": "584", "last_page": "591", "citations": [ { "type": "official", "cite": "12 N.C. App. 584" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "174 S.E. 2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563209 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0661-01" ] }, { "cite": "135 S.E. 2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575129 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0645-01" ] }, { "cite": "114 S.E. 2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625444 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0690-01" ] }, { "cite": "109 S.E. 65", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "opinion_index": 0 }, { "cite": "182 N.C. 831", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659128 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nc/182/0831-01" ] }, { "cite": "107 S.E. 317", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1921, "opinion_index": 0 }, { "cite": "181 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656121 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nc/181/0386-01" ] }, { "cite": "225 U.S. 623", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11343309 ], "weight": 2, "year": 1911, "opinion_index": 0, "case_paths": [ "/us/225/0623-01" ] }, { "cite": "126 S.E. 517", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "opinion_index": 0 }, { "cite": "189 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653689 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/nc/189/0173-01" ] }, { "cite": "46 S.E. 2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "228 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628020 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/228/0664-01" ] }, { "cite": "75 S.E. 2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617124 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0633-01" ] }, { "cite": "322 Mo. 1129", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 1857827 ], "opinion_index": 0, "case_paths": [ "/mo/322/1129-01" ] }, { "cite": "174 U.S. 96", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3607091 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/174/0096-01" ] }, { "cite": "99 S.E. 415", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "177 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654665 ], "opinion_index": 0, "case_paths": [ "/nc/177/0433-01" ] }, { "cite": "80 S.E. 168", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "164 N.C. 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656723 ], "opinion_index": 0, "case_paths": [ "/nc/164/0135-01" ] }, { "cite": "170 U.S. 283", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3599116 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/170/0283-01" ] }, { "cite": "55 S.E. 2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "230 N.C. 641", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631616 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/230/0641-01" ] }, { "cite": "122 S.E. 469", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1924, "opinion_index": 0 }, { "cite": "187 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654396 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/nc/187/0541-01" ] }, { "cite": "168 S.E. 2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558889 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0454-01" ] }, { "cite": "72 S.E. 2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622124 ], "opinion_index": 0, "case_paths": [ "/nc/236/0001-01" ] }, { "cite": "51 S.E. 2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 764", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12168052 ], "opinion_index": 0, "case_paths": [ "/nc/229/0764-01" ] }, { "cite": "173 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 499", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562301 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0499-01" ] } ], "analysis": { "cardinality": 765, "char_count": 15853, "ocr_confidence": 0.556, "pagerank": { "raw": 1.584203108430768e-07, "percentile": 0.6809215517970353 }, "sha256": "6fd550f7d2607ee561fd3d04d4450bfcfe40ef46c536e2536a8f3474ce6279fc", "simhash": "1:1e8e6c6a069995fb", "word_count": 2629 }, "last_updated": "2023-07-14T18:50:27.087613+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Graham concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH R. GREENWOOD" ], "opinions": [ { "text": "MALLARD, Chief Judge.\nThe defendant challenges the right of the State to appeal from the judgment of the superior court.\nThe Constitution of North Carolina, Art. IV, \u00a7 12(6), provides that the General Assembly shall provide by 'general law a proper system of appeals. The General Assembly has provided a proper system of appeals for both the State and the defendant in criminal cases.\nIn criminal cases, it is provided in G.S. 7A-290 that any defendant who is convicted in the district court may appeal to the superior court where the trial is de novo. This statute relates solely to the right to appeal of a convicted defendant. In the superior court, the defendant, upon appeal, is entitled to a trial de novo by jury. G.S. 7A-196.\nThe State\u2019s right to appeal is limited. The General Assembly has provided in G.S. 15-179:\n\u201cWhen State May Appeal. \u2014 An appeal to the appellate division or superior court may be taken by the State in the following cases, and no other. Where judgment has been given for the defendant\u2014\n* * \u2756\n(3) Upon a motion to quash.\n* * *\n(6) Upon declaring a statute unconstitutional.\u201d\nUnder this statute, if the State\u2019s right to appeal arises in the district court, the appeal is to the superior court; if it arises in the superior court, the appeal is to the appellate division. In this case, therefore, the State had the right to appeal from the district court to the superior court and from the superior court to the Appellate Division of the General Court of Justice.\nThe defendant further contends that when the State appealed from the district court to the superior court, the trial was de novo. In his brief, he moves that we dismiss the State\u2019s appeal and cites in support of his contention the case of State v. Sparrow, 276 N.C. 499, 173 S.E. 2d 897 (1970). In Sparrow, however, the factual situation is distinguishable: There, the defendant appealed, not the State. G.S. 7A-290 specifically provides that upon a defendant\u2019s appeal from the district court to the superior court, the trial shall be de novo. G.S. 15-179 permits the State to appeal under the limited circumstances enumerated but does not specify that the trial must be de novo.\nWe think that the judgment of the superior court, the only one we are concerned with on this appeal, is sufficient to constitute a judgment given for the defendant upon a motion to quash. This permits the State to appeal to this court. The motion of the defendant to dismiss this appeal is denied.\nThe defendant made certain exceptions to the case on appeal, but none of them concerned the actual contents of the ordinance in question; therefore, the authenticity of the ordinance is not in dispute. The ordinance appears on page 5 of the record and reads as follows:\n\u201cSec. 7-7. Operation Between Certain Hours and on Sunday Prohibited.\nIt shall be unlawful for any billiard hall licensee or his employee to keep such billiard hall open or to operate the same between the hours of 12:00 midnight and 8:00 a.m., or at any time on Sunday. (Code 1945, \u00a7 185)\u201d\nThe General Assembly, by enacting G.S. 160-200(33), gave to cities the power \u201c(t)o license, prohibit, and regulate pool and billiard rooms and dance halls, and in the interest of public morals provide for the revocation of such licenses.\u201d (Emphasis added.)\nThe language of the statute indicates that the General Assembly recognized that the regulation and operation of pool and billiard rooms and of dance halls have a peculiar relation to public morals.\n\u201cThe police power rests in the individual states, and in the exercise thereof the legislature may enact laws, within constitutional limits, to protect or promote the health, morals, order, safety, and general welfare of society. State v. Ballance, 229 N.C. 764, 51 S.E. 2d 731; State v. Whitaker, supra. The General Assembly may delegate to a municipality, as an agency of the State, authority to enact ordinances in the exercise of the police power. State v. Scoggins, 236 N.C. 1, 72 S.E. 2d 97. However, the municipality has only such powers as are delegated to it, and such powers are, of course, subject to the same constitutional limitations as are police powers exercised directly by the State. Winston-Salem v. Southern Ry., supra. In reviewing the exercise of the police power, it is the sole duty of the court to ascertain whether the act violates any constitutional limitation, the question of public policy being solely within the province of the legislature. State v. Whitaker, supra. Generally, the police power can only be exercised by a body possessing legislative power, 16 C.J.S., Constitutional Law \u00a7 177 (1956), and it is generally accepted that the police powers of a municipality are to be carried into effect and discharged through provisions of ordinances or resolutions enacted by the Council or other governing authority at a meeting legally called. 37 Am. Jur. Municipal Corporations \u00a7 52 (1941); 2 McQuillin, Municipal Corporations \u00a7 10.30, at 816 (3d ed. 1966 rev. vol.)\u201d City of Raleigh v. R.R. Co., 275 N.C. 454, 168 S.E. 2d 389 (1969).\nThe State contends that the trial judge in the superior court committed error in affirming the order of the district court quashing the warrant.\nThe parties do not question the sufficiency of the warrant, as amended, to charge a violation of the ordinance. Nor is there any contention that the procedure used by the City of Asheville in adopting the ordinance was unlawful.\nThe defendant contends, however, that the statute does not specifically delegate the power to the cities to control the hours and days of operation of the places of business embraced therein. This contention is without merit. The clear language of the statute is sufficient to authorize the City of Asheville to adopt the ordinance in question.\nDefendant further argues that the statute and ordinance are void because bowling alleys and snooker pool rooms are not included therein. This contention is also without merit. In Turner v. New Bern, 187 N.C. 541, 122 S.E. 469 (1924), it is stated:\n\u201cA statute enacted within the police power will not be adjudged invalid because an omitted subject. . . might have been properly included.\u201d\nIn State v. Trantham, 230 N.C. 641, 55 S.E. 2d 198 (1949), Justice Barnhill (later Chief Justice) said:\n\u201cLegislative bodies may distinguish, select, and classify objects of legislation. It sufficies if the classification is practical. Magoin v. Bank, 170 U.S. 283, 42 L. Ed. 1037; S. v. Davis, supra. They may prescribe different regulations for different classes, and discrimination as between classes is not such as to invalidate the legislative enactment. Smith v. Wilkins, 164 N.C. 135, 80 S.E. 168.\nThe very idea of classification is inequality, so that inequality in no manner determines the matter of constitutionality. Bickett v. Tax Commission, 177 N.C. 433, 99 S.E. 415; R. R. v. Matthews, 174 U.S. 96, 43 L. Ed. 909. The one requirement is that the ordinance must affect all persons similarly situated or engaged in the same business without discrimination. City of Springfield v. Smith, 322 Mo. 1129.\nOnly those ordinances which discriminate between those of a particular group or class who are similarly situated with reference to the subject matter of the legislation come within the constitutional inhibitions.\u201d\nSee also State v. McGee, 237 N.C. 633, 75 S.E. 2d 783 (1953) ; State v. Glidden Co., 228 N.C. 664, 46 S.E. 2d 860 (1948) ; State v. Denson, 189 N.C. 173, 126 S.E. 517 (1925).\nThe desirability of, and constitutional authority for, having some statutory regulation of pool and billiard rooms have been recognized for many years. See Murphy v. California, 225 U.S. 623, 56 L. Ed. 1229 (1911) ; Brunswick-Balke Co. v. Mecklenburg, 181 N.C. 386, 107 S.E. 317 (1921).\nIn 4 Am. Jur. 2d, Amusements and Exhibitions, \u00a7 24, it is stated:\n\u201cAlthough the playing of pool or billiards is a lawful amusement, public pool and billiard rooms and tables, because of their harmful and vicious tendencies, may be regulated by the state in the exercise of its police power, acting either directly or under a grant of . power to municipalities or other political subdivisions, or absolutely prohibited, and such a prohibition will be upheld if not discriminatory.\u201d\nIn 86 C.J.S., Theaters & Shows, \u00a7 4, it is stated:\n\u201cIn the exercise of the regulatory power, public places of amusement may be required to open and close at reasonable hours. Accordingly, a political subdivision of the state may, within reasonable limits, regulate or prescribe the opening and closing hours of dance halls, or of pool and billiard halls, but not so as to impair rights granted under state license.\u201d\nIn 6 McQuillin, Municipal Corporations (3rd ed. 1969) Rev. Vol.), \u00a7 24.149, it is stated:\n\u201cPool and billiard rooms and tables for public use may be subject to municipal regulation, prohibition, or suppression, and licensing. An ordinance forbidding the conducting of a snooker hall is within statutory authority to prohibit pool and billiard halls. * * * (I) t has been held that a municipal corporation may forbid the keeping of public places for billiard playing apart from any gambling feature, because of the tendency of such places to attract youth to associate with and become idlers and otherwise to disturb the public welfare.\u201d\nIn State v. Vanhook, 182 N.C. 831, 109 S.E. 65 (1921), the Supreme Court held that a statute, identical in language to G.S. 160-200.(33), and an ordinance adopted pursuant thereto, relating to the licensing of dance halls, were clearly a valid exercise of the police power of the State. In so holding, the Court said:\n\u201cInstances of a similar exercise of the police power may be found in ordinances which prohibit disorderly conduct, or abusive or indecent language, or the entrance of an unmarried minor into a saloon, or the pursuit of one\u2019s ordinary business on Sunday; or which regulate the weighing of cotton, or the running at large of bird dogs during the closed season for quail, or vaccination for the public health, or which deal with various other situations affecting the health, comfort, morals, and safety of the people.\u201d\nThe defendant has no vested constitutional right to engage in the business of operating a pool and billiard room free from statutory regulation. 16 C.J.S., Constitutional Law, \u00a7 224.\nThe presumption is that an act of the General Assembly is constitutional. State v. Warren, 252 N.C. 690, 114 S.E. 2d 660 (1960); Ramsey v. Veterans Commission, 261 N.C. 645, 135 S.E. 2d 659 (1964). The burden of establishing the unconstitutionality of a statute is upon him who assails it. Mobile Home Sales v. Tomlinson, 276 N.C. 661, 174 S.E. 2d 542 (1970).\nThe General Assembly, in enacting the statute in question [G.S. 160-200(33)], selected and classified pool and billiard rooms as objects of legislation. The ordinance enacted by the City of Asheville under the authority granted by the statute affects all persons who operate a billiard hall within the city. Our research does not reveal that the Supreme Court has changed its holding that an ordinance adopted pursuant to the statute in question is within the police power of the State. State v. Vanhook, supra.\nWe hold that the statute is authority for the adoption of the ordinance; that the statute and the ordinance enacted pursuant thereto are not unreasonable, capricious or arbitrary; do not create a constitutionally prohibited discrimination between businesses of the same type; are not a denial of the equal protection of the laws; do not violate any constitutional limitation; and therefore are not unconstitutional.\nThe judge of the superior court committed error in allowing the defendant\u2019s motion to quash.\nReversed.\nJudges Hedrick and Graham concur.", "type": "majority", "author": "MALLARD, Chief Judge." } ], "attorneys": [ "Attorney General Morgan and Associate Attorney Baxter for the State, appellant.", "Uzzell & Dumont by Harry Dumont for defendant appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH R. GREENWOOD\nNo. 7128SC519\n(Filed 17 November 1971)\n1. Criminal Law \u00a7 149\u2014 right of State to appeal \u2014 quashal of warrant in superior court\nThe State, which had appealed the quashal of a warrant from the district court to the superior court, could likewise appeal the superior court\u2019s quashal of the warrant to the Court of Appeals. N. C. Constitution, Art. IV, \u00a7 12(6); G.S. 16-179.\n2. Municipal Corporations \u00a7 32\u2014 regulation of billiard halls \u2014 hours of operation \u2014 Sunday closing\nThe City of Asheville had statutory authority to enact an ordinance providing that billiard halls shall not be open between the hours of 12:00 midnight and 8:00 a.m. or at any time on Sunday. G.S. 160-200(33).\n3. Constitutional Law \u00a7 20; Municipal Corporations \u00a7 32\u2014 regulation of billiard halls \u2014 validity of statute and ordinance \u2014 failure to include bowling alleys\nA statute and a municipal ordinance which regulate the operation of billiard halls are not rendered invalid on the ground that bowling alleys and snooker pool rooms are not also included therein.\n4. Constitutional Law \u00a7 12\u2014 regulation of billiard hall \u2014 rights of operator\nThe operator of a billiard hall has no vested constitutional right to engage in his business free from statutory regulation.\n5. Statutes \u00a7 4\u2014 presumption of constitutionality\nThe presumption is that an act of the General Assembly is constitutional.\n6. Statutes \u00a7 4\u2014 constitutionality of statute \u2014 burden of proof\nThe burden of establishing the unconstitutionality of a statute is upon him who assails it.\n7. Municipal Corporations \u00a7 32\u2014 ordinance regulating billiard halls \u2014 hours of operation \u2014 constitutionality\nAn ordinance of the City of Asheville providing that billiard halls shall not be open between the hours of 12:00 midnight and 8:00 a.m. or at any time on Sunday, held constitutional.\nAppeal by the State of North Carolina from Ervin, Judge, 25 January 1971 Session of Superior Court held in Buncombe County.\nDefendant was charged in a warrant, the affidavit portion of which reads as follows:\n\u201cThe undersigned, E. F. Edwards, being duly sworn, complains and says that at and in the County named above and on or about the 13th day of Dec., 1970, the defendant named above did unlawfully, wilfully, Operate (as an employee of) the Family Recreatiln (sic) Center, (a licensee) at 85 Tunnel Road on Sunday The said family Recreation Center being a Billiard Hall consisting of 16 billiard tables in violation of City Ordance (sic) Chapter 7 Section 7-7. [Motion to amend allowed \u2014 Judge D.J.W.]\nThe offense charged here was committed against the peace and dignity of the State and in violation of law.\u201d\nWhen the case was called for trial in the district court, the defendant made a motion to quash the warrant \u201con the grounds that the ordinance of which violation alleged, is unconstitutional and otherwise unlawful.\u201d The judge of the district court allowed the motion and dismissed the case. The State appealed to the superior Court.\nThe following judgment was entered by Judge Ervin in superior court:\n\u201cThis Cause coming on to be heard and being heard before the undersigned Judge Presiding at the January 25, 1971 Criminal Session of the Superior Court of Buncombe County, North Carolina, upon the appeal of the State from the judgment entered by his Honor Dennis J. Winner, Judge of the District Court of Buncombe County, quashing the warrant issued in this action; and\nThe Court, after reviewing the warrant and the written Opinion of Judge Winner, and briefs filed by the parties, and hearing argument of counsel, being of the opinion that the Judgment entered by Judge Winner quashing the warrant issued in this cause should be affirmed.\nIt Is, Therefore, Ordered that the Judgment entered in the District Court Division of Buncombe County, dated December 22, 1970, is hereby affirmed.\u201d\nThe State of North Carolina objected and excepted to the judgment entered in the superior court and appealed to the Court of Appeals.\nAttorney General Morgan and Associate Attorney Baxter for the State, appellant.\nUzzell & Dumont by Harry Dumont for defendant appellee." }, "file_name": "0584-01", "first_page_order": 610, "last_page_order": 617 }