#### VARIETY THEATRES, INC., a North Carolina Corporation v. CLEVELAND COUNTY, NORTH CAROLINA; HAYWOOD ALLEN, Sheriff of Cleveland County, North Carolina, and all his deputies and BERRY LEE, Chief of Police of Shelby, North Carolina, and all his policemen

No. 7227SC408

(Filed 2 August 1972)

1. Statutes § 5— drive-in motion picture theaters — screens visible from highways — ordinance authorized by awkwardly worded session law

Where county commissioners passed an ordinance prohibiting the operation of drive-in motion picture theaters so that the surface of the screen upon which pictures were projected was visible to any person operating a motor vehicle upon nearby streets or roads, and such ordinance was based on an awkwardly worded session law, the trial court did not err in holding that the ordinance was authorized by the session law. G.S. 153-9(55), Chapter 1062, 1971 Session Laws.

2. Statutes § 5— ambiguous statute — judicial construction — legislative intent

Resort must be had to judicial construction to determine the legislative intent where a statute is ambiguous, and such intent is to 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.

3. Constitutional Law § 11— county ordinance regulating drive-in motion picture screens — police power

A county ordinance prohibiting drive-in motion picture screens from being visible from highways was constitutional as it applied to all drive-in motion picture theaters, it attempted in no way to control the content of what was shown on the screens, and it dealt directly and narrowly with the highway safety hazard involved.

Chief Judge Mallard dissents.

Appeal by plaintiff from Fountain, Judge, 14 February 1972 Session of Cleveland Superior Court.

The Board of Commissioners of Cleveland County passed an ordinance making it unlawful for any person, firm or corporation to operate a drive-in motion picture theater in the vicinity of any public street or highway in Cleveland County and outside of certain municipalities in such a manner that the surface of such theater screen upon which pictures are being projected is visible to any person operating a motor vehicle upon such street or highway. This ordinance was enacted pursuant to Chapter 1062 of the 1971 Session Laws of North Carolina and G.S. 153-9(55).

*513Plaintiff brought an action seeking a declaratory judgment adjudging the ordinance and session law unconstitutional and applied for a temporary restraining order. At the hearing to determine if a preliminary injunction should issue the court found that both the ordinance and session law were valid exercises of the police power and that the temporary restraining order should be dissolved.

From this judgment plaintiff appealed but defendants were restrained from enforcing the ordinance pending determination of the matter on appeal.

George S. Daly, Jr., for plaintiff appellant.

Horn, West & Horn by C. C. Horn and J. A. West for defendant appellees.

BRITT, Judge.

[1, 2] 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. *514 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.

[3] 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 *515theater 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.