#### STATE v. JAMES CHRISTOPHER.

(Filed 30 September, 1942.)

Municipal Corporations §§ 36, 39—

Municipal ordinance making criminal tbe use of streets for delivery of products and carrying on tbe business of selling certain specific merchandise, without first obtaining a license, is invalid under Kenny Go. v. Brevard, 217 N. C., 269.

Appeal by defendant from Sink, J., at March Term, 1942, of YaNCEy.

Criminal prosecution upon a warrant charging the defendant with the violation of an ordinance of the town of Burnsville, “By using the streets of the Town for the delivery of his products and carrying on and enjoying the business of selling at wholesale, peanuts, candies, potato chips, etc., without first procuring a license and paying for the same from the Town Clerk.” Verdict: Guilty. Judgment: Ten dollars and the costs.

From the foregoing judgment, defendant appeals and assigns error.

Attorney-General McMullan and Assistant Attorneys-General Patton and Rhodes for the State.

Reed Kitchin and Gogburn & Vrabel for defendant.

Per Curiam.

Defendant’s motion for judgment as of nonsuit should have been allowed. The ordinance of the town of Burnsville, which defendant is charged with violating, is invalid under the decision of Kenny Co. v. Brevard, 217 N. C., 269, 7 S. E. (2d), 542.

The judgment of the court below is

Reversed.