#### STATE v. J. T. NICHOLS.

(Filed 1 February, 1939.)

1. Criminal Law § 68a: Courts § 2a—

When defendant charged with a misdemeanor is found not guilty in the municipal court on “a special verdict” without the intervention of a jury, it amounts to an acquittal, and, the municipal court having jurisdiction, this ends the matter, the State having no right of appeal to the Superior Court.

2. Criminal Law § 68a—

The right of the State to appeal upon a special verdict, a demurrer, a motion to quash, or a motion in arrest of judgment, C. S., 4649, applies only to judgments rendered in the Superior Court.

3. Cleaners, Dyers and Pressers § 1 — Warrant held insufficient to charge violation of ch. 30, Public Laws of 1937.

This prosecution was instituted to test the validity of ch. 30, Public Laws of 1937. The warrant charged that defendant “did unlawfully . . . operate a press shop” without obtaining a license. HelcL: The act sought to be challenged applies only to those who “engage in the business” or “who shall continue to do the business” defined in the act, and does not perforce apply to those who operate the business.

4. Appeal and Error § 40g — Constitutionality of statute will not be decided unless the question is properly presented.

The constitutionality of a statute will not be determined unless the question is properly presented, and when on appeal from a conviction in the Superior Court for violation of a statute, it appears that the State had no right to appeal to the Superior Court from acquittal in the municipal court, and that the warrant was insufficient to charge a violation of the statute, the judgment of the Superior Court will be vacated and the appeal dismissed.

Appeal by defendant from Sink, J., at September Term, 1938, of Eoesyth.

Criminal prosecution tried upon warrant charging the defendant with operating a press shop without first making application for a press-shop license and paying the annual license fee of $10, in violation of ch. 30, Public Laws 1937.

The case was originally tried in the municipal court of the city of Winston-Salem, where the court made certain findings, and upon such findings rendered “a special verdict to the effect that the defendant, J. T. Nichols, is not guilty of the crime charged in the warrant.”

From this “special verdict and judgment,” the State, in open court, gave notice of appeal to the Superior Court of Forsyth County.

*81In tbe Superior Court, tbe case was tried de novo. Tbe jury returned a special verdict, upon wbicb tbe court directed a verdict of guilty to be entered, and taxed tbe defendant witb tbe costs.

Defendant appeals, assigning errors.

Attorney-General McMullan for the State, appellee.

Broohs, McLendon & Holderness and John W. Caffey, amici curias.

Ira Julian and John B. Bellamy & Sons for defendant, appellant.

Stagy, C. J.

Tbe purpose of tbis appeal is to test tbe constitutionality of ebap. 30, Public Laws 1937, being “An Act to Regulate tbe Business of Cleaning, Dyeing and/or Pressing.”

Tbe effort must fail on tbe instant record. S. v. Lueders, 214 N. C., 558.

In tbe first place, tbe defendant is charged witb a misdemeanor (if, indeed, be be charged witb any offense), and be was found not guilty in tbe municipal court on “a special verdict” without tbe intervention of a jury, wbicb amounted to an acquittal. S. v. Gamby, 209 N. C., 50, 182 S. E., 715. Tbis put an end to tbe matter, as tbe court bad jurisdiction of tbe alleged offense, and no appeal to tbe Superior Court is vouchsafed to tbe State in such cases. S. v. Jones, 5 N. C., 257; S. v. Savery, 126 N. C., 1083, 36 S. E., 22; S. v. Ostwalt, 118 N. C., 1208, 24 S. E., 660; McIntosh N. C. Prac. & Proc., 818, el seq. Cf. S. v. Lane, 78 N. C., 547.

Speaking to tbe subject in S. v. Powell, 86 N. C., 640, Smith, C. J., delivering tbe opinion of the Court, said: “And when authority is conferred upon tbe Legislature to commit to inferior officers tbe trial of 'petty misdemeanors’ witb tbe subsequent restriction upon tbe punishment' to be awarded, and then only 'with tbe right of appeal’ to a court where tbe trial is to be de novo and before a jury, it must be understood that tbis restraint is imposed upon tbe Legislature, and tbis declared right reserved for the benefit of tbe accused and for bis security alone.' Tbe preexisting law and practice recognized and enforced in numerous adjudications bad settled tbe principle that when a party charged witb any offense before a tribunal of competent jurisdiction has been tried and acquitted, tbe result is final and conclusive, and no appeal is allowed tbe State to correct any error committed by tbe court, and tbis has been uniformly maintained since tbe adoption of tbe new Constitution, as before. S. v. Jones, supra; S. v. Taylor, 8 N. C., 462; S. v. Martin, 10 N. C., 381; S. v. Credle, 63 N. C., 506; S. v. Phillips, 66 N. C., 646; S. v. West, 71 N. C., 263; S. v. Armstrong, 72 N. C., 193.”

*82Secondly, tbe right of the State to appeal to the Supreme Court, where judgment has been given for the defendant upon (1) a special verdict, (2) a demurrer, (3) a motion to quash, or (4) a motion in arrest of judgment, as provided by C. S., 4649, applies only to judgments rendered in the Superior Court. Rhyne v. Lipscombe, 122 N. C., 650, 29 S. E., 57.

Moreover, it is observed that the act here sought to be challenged, applies only to those who "engage in the business” or "who shall continue to do the business” of dry cleaning, dyeing, and/or pressing, and does not perforce apply to those who operate the business, unless they also “engage in the business,” or “continue to do the business,” as defined in the act. S. v. Julian, 214 N. C., 575; S. v. Crayton, ibid., 579. The warrant here charges that the defendant “did unlawfully . . . operate a press shop.” S. v. Smith, 211 N. C., 206, 189 S. E., 509.

These defects, though observed sua sponte, preclude a consideration of the constitutional question. S. v. Lueders, supra; S. v. Smith, supra; S. v. Shipman, 203 N. C., 325, 166 S. E., 298: S. v. Beasley, 196 N. C., 797, 147 S. E., 301.

The judgment of the Superior Court will be vacated and the appe'al dismissed.

Judgment vacated. Appeal dismissed.