{ "id": 8573179, "name": "STATE OF NORTH CAROLINA v. KENNETH R. GREENWOOD", "name_abbreviation": "State v. Greenwood", "decision_date": "1972-03-15", "docket_number": "No. 14", "first_page": "651", "last_page": "659", "citations": [ { "type": "official", "cite": "280 N.C. 651" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "184 S.E. 2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "12 N.C. App. 584", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551603 ], "opinion_index": -1, "case_paths": [ "/nc-app/12/0584-01" ] }, { "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": "160 S.E. 2d 18", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575113 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0293-01" ] }, { "cite": "143 S.E. 2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574729 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0173-01" ] }, { "cite": "125 S.E. 2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1962, "pin_cites": [ { "page": "769" } ], "opinion_index": 0 }, { "cite": "257 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566711 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/257/0206-01" ] }, { "cite": "79 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "239 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626536 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/239/0274-01" ] }, { "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": "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": "178 S.E. 2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "277 N.C. 654", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567186 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/277/0654-01" ] }, { "cite": "165 S.E. 2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557715 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0001-01" ] }, { "cite": "151 S.E. 2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563519 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0527-01" ] }, { "cite": "140 S.E. 2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572693 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0710-01" ] }, { "cite": "174 S.E. 2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "546" } ], "opinion_index": 0 }, { "cite": "276 N.C. 661", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563209 ], "year": 1970, "pin_cites": [ { "page": "666-67" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0661-01" ] }, { "cite": "134 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "369" } ], "opinion_index": 0 }, { "cite": "261 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572713 ], "year": 1964, "pin_cites": [ { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0222-01" ] }, { "cite": "354 U.S. 457", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6160543 ], "weight": 3, "year": 1957, "pin_cites": [ { "page": "465" }, { "page": "1491" }, { "page": "1350" } ], "opinion_index": 0, "case_paths": [ "/us/354/0457-01" ] }, { "cite": "139 S.E. 2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "895" } ], "opinion_index": 0 }, { "cite": "263 N.C. 587", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572089 ], "year": 1965, "pin_cites": [ { "page": "591" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0587-01" ] }, { "cite": "105 S.E. 2d 659", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1958, "pin_cites": [ { "page": "661" } ], "opinion_index": 0 }, { "cite": "249 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611876 ], "year": 1958, "pin_cites": [ { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/nc/249/0205-01" ] }, { "cite": "130 S.E. 619", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "pin_cites": [ { "page": "621" } ], "opinion_index": 0 }, { "cite": "190 N.C. 768", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614233 ], "year": 1925, "pin_cites": [ { "page": "772" } ], "opinion_index": 0, "case_paths": [ "/nc/190/0768-01" ] }, { "cite": "101 S.E. 370", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "pin_cites": [ { "page": "371" } ], "opinion_index": 0 }, { "cite": "178 N.C. 740", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274196 ], "year": 1919, "pin_cites": [ { "page": "742" } ], "opinion_index": 0, "case_paths": [ "/nc/178/0740-01" ] } ], "analysis": { "cardinality": 813, "char_count": 17022, "ocr_confidence": 0.541, "pagerank": { "raw": 4.58340706823708e-07, "percentile": 0.9254259611274634 }, "sha256": "9d1c4560b3b7acd5a9df7062cea37e98212f7369e823ebeb0b790de2ef89048b", "simhash": "1:82c1142b1ee70f78", "word_count": 2718 }, "last_updated": "2023-07-14T16:17:02.302234+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Lake concurs in results." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH R. GREENWOOD" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nRejecting defendant\u2019s contention to the contrary, the Court of Appeals upheld the State\u2019s right of appeal from Judge Ervin\u2019s judgment. In this respect, the decision of the Court of Appeals is affirmed for the reasons well and fully stated in the opinion of Chief Judge Mallard.\nG.S. 160-200(33), Vol. 3D, Replacement 1964, authorized the legislative body of a municipal corporation \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 The quoted statutory provision was repealed by Chapter 698 of the Session Laws of 1971, effective January 1, 1972. However, the section of the 1971 Act designated G.S. 160A-174(a) provides: \u201cA city may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.\u201d Yol. 3D, 1971 Cumulative Supplement. G.S. 160A-181 in part provides: \u201cA city may by ordinance regulate places of amusement and entertainment, and may regulate, restrict or prohibit the operation of pool and billiard halls, dance halls, carnivals, circuses, or any itinerant show or exhibition of any kind.\u201d However, \u201c [a] city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States.\u201d G.S. 160A-174(b).\nUnquestionably, Asheville may by ordinance license and regulate the operation of pool and billiard rooms and dance halls. Subject to constitutional limitations, it may by ordinance \u201cdefine and abate nuisances.\u201d As to this, Judge Winner, Judge Ervin and the Court of Appeals are in accord.\nThe subject ordinance is violated if a billiard hall licensee opens or operates his business \u201cbetween the hours of 12:00 midnight and 8:00 a.m., or at any time on Sunday.\u201d The ordinance provision on which this prosecution is based does not purport to regulate in any respect the manner in which a billiard hall is operated; it prohibits the operation thereof in any manner on Sunday and during specified hours on other days. The warrant charges that defendant, a billiard hall licensee, operated his place of business on a specified Sunday. Since there is no allegation that this operation occurred between the hours of 12:00 midnight and 8:00 a.m., the constitutional question here presented relates to the portion of the ordinance which absolutely prohibits the opening and operation \u201cat any time on Sunday\u201d of a business otherwise recognized as legitimate. The constitutionality thereof depends upon whether the absolute prohibition on Sunday of the one business of operating billiard halls by licensed operators in a lawful manner denies to defendant the equal protection of the laws guaranteed by Article I, \u00a7 19, of the Constitution of North Carolina, and by the Fourteenth Amendment to the Constitution of the United States.\n\u201cA valid ordinance must be shown or the prosecution necessarily fails.\u201d State v. Prevo, 178 N.C. 740, 742, 101 S.E. 370, 371 (1919). Accord: State v. Abernethy, 190 N.C. 768, 772, 130 S.E. 619, 621 (1925); State v. McGraw, 249 N.C. 205, 206, 105 S.E. 2d 659, 661 (1958).\nThis prosecution is based solely on the ordinance provision (\u201cSec. 7-7\u201d) quoted in our statement of facts. As stated by Justice (later Chief Justice) Parker in Surplus Co. v. Pleasants, 263 N.C. 587, 591, 139 S.E. 2d 892, 895 (1965): \u201cThis Court has consistently held that our courts of general jurisdiction and the Supreme Court will not take judicial notice of a municipal ordinance.\u201d This statement is fully supported by the cited texts and decisions.\nUpon oral argument, it was stated without contradiction that Asheville has no general Sunday closing ordinance. Be that as it may, no other ordinance was offered in evidence or placed before us pursuant to stipulation. The validity of the ordinance provision under consideration must be determined solely on the basis of its own terms.\nThe equal protection clauses of the United States and North Carolina Constitutions impose upon law-making bodies the requirement that any legislative classification \u201cbe based on differences that are reasonably related to the purposes of the Act in which it is found.\u201d Morey v. Doud, 354 U.S. 457, 465, 1 L.Ed. 2d 1485, 1491, 77 S.Ct. 1344, 1350 (1957). \u201cThe general rule is that the enactment of Sunday regulations is a legitimate exercise of the police power, and that the classification on which a Sunday law is based is within the discretion of the legislative branch of the government or within the discretion of the governing body of a municipality clothed with power to enact and enforce ordinances for the observance of Sunday, and will be upheld, provided the classification is founded upon reasonable distinctions, affects all persons similarly situated or engaged in the same business without discrimination, and has some reasonable relation to the public peace, welfare and safety.\u201d (Our italics.) Clark\u2019s Charlotte, Inc. v. Hunter, 261 N.C. 222, 229, 134 S.E. 2d 364, 369 (1964).\nIn determining whether a Sunday ban on the operation of billiard halls1, but on no other businesses which provide facilities and opportunities for recreation, amusements and sports, denies equal protection to the operators of billiard halls, consideration must be given (1) to the purpose of the ordinance, and (2) to the classification involved.\nThe validity of a Sunday closing statute or ordinance depends \u201cupon its reasonable relation to the accomplishment of the State\u2019s legitimate objective, which, in this instance, is the promotion of the public health, safety, morals and welfare by the establishment of a day of rest and relaxation. Legislation for this purpose, like other legislation, may not discriminate arbitrarily either as between persons1, or groups of persons, or as between activities which are prohibited and those which are permitted.\u201d Mobile Home Sales v. Tomlinson, 276 N.C. 661, 666-67, 174 S.E. 2d 542, 546 (1970). Assuming Asheville\u2019s objective was to promote Sunday as a day of rest, tranquillity and relaxation, the subject ordinance provision does nothing to accomplish that objective except prohibit the operation of billiard halls.\nThe crucial question is whether, in relation to the purpose of the ordinance, there is a rational basis for placing billiard halls in a unique class, separate and apart from all other businesses which offer facilities and opportunities for recreation, sports and amusements. An affirmative answer would require that we hold that the operation of billiard halls on Sunday constitutes an interference with the peace and quiet of that day in a manner or to an extent substantially different from the operation of other sporting or recreational facilities. To so hold would require us to disregard plain facts. Bowling alleys, dance halls, skating rinks, swimming pools, amusement parks, spectator games and sports, and similar businesses, no less than billiard halls, are potential gathering places for idlers and trouble-makers and potential centers for boisterousness, immorality and crime. However, all are facilities for wholesome recreation. In terms of the purpose of the ordinance all are within the same classification.\nMunicipal ordinances which prohibit generally all sales of merchandise on Sunday with specific exceptions have been upheld in Charles Stores v. Tucker, 263 N.C. 710, 140 S.E. 2d 370 (1965); Clark\u2019s v. West, 268 N.C. 527, 151 S.E. 2d 5 (1966); Kresge Co. v. Tomlinson, 275 N.C. 1, 165 S.E. 2d 236 (1969); Mobile Home Sales v. Tomlinson, supra; Kresge Co. v. Davis, 277 N.C. 654, 178 S.E. 2d 382 (1971). Municipal ordinances which prohibit generally all businesses on Sunday with specific exceptions have been upheld in State v. Trantham, 230 N.C. 641, 55 S.E. 2d 198 (1949); State v. McGee, 237 N.C. 633, 75 S.E. 2d 783 (1953); State v. Towery, 239 N.C. 274, 79 S.E. 2d 513 (1954); Clark\u2019s Charlotte, Inc. v. Hunter, supra. The issue of whether there was a rational and nondiscriminatory basis for the exceptions to the general prohibitions was involved in these cases.\nIn Surplus Store, Inc. v. Hunter, 257 N.C. 206, 125 S.E. 2d 764 (1962), the statute under consideration prohibited Sunday sales, at retail, of specified articles of merchandise, but excepted \u201cnovelties, toys, souvenirs, and articles necessary for making repairs and performing services.\u201d The provision purporting to identify excepted articles was held \u201cso vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.\u201d Id. at 218, 125 S.E. 2d at 769. The statute was held unconstitutional on the ground of uncertainty as to what merchandise was affected by the prohibition. Hence, there was no basis for considering whether there was a rational and nondiscriminatory basis for the specific prohibitions.\nThe equal protection clauses do not require perfection in respect of classifications. In borderline cases, the legislative determination is entitled to great weight. However, this is not a borderline case. The Sunday closing ordinance here involved singles out and bans one particular business but permits others which provide facilities for recreation, sports and amusements, and potentionally are equally disruptive.\nAlthough different factually, decisions based on cognate legal principles include the following: In State v. Smith, 265 N.C. 173, 143 S.E. 2d 293 (1965), a Forsyth County resolution which closed \u201cclubs\u201d located within three hundred yards of a church or school between 2:00 a.m. and 12:00 midnight on Sunday, was held to be arbitrary and unreasonable. In Cheek v. City of Charlotte, 273 N.C. 293, 160 S.E. 2d 18 (1968), an ordinance which strictly regulated \u201cmassage parlors, health salons, or physical culture studios\u201d but excepted barber shops, beauty parlors, and Y.M.C.A. and Y.W.C.A. health clubs, was held to violate equal protection. In State v. Glidden Co., 228 N.C. 664, 46 S.E. 2d 860 (1948), a statute (G.S. 113-172) which proscribed the emptying of deleterious substances into the waters of the State, but exempted corporations chartered before 1915, was held \u201cto mechanically split into two groups persons in like situation with regard to the subject matter dealt with\u201d and therefore to be unconstitutional.\nIn its appeal from Judge Ervin\u2019s judgment, the State did not draw into focus, and the opinion of the Court of Appeals did not discuss, the Sunday closing feature of the ordinance provision. However, on his appeal from the Court of Appeals, defendant emphasizes this feature both by brief and on oral argument.\nSince the ordinance provision prohibiting the operation of billiard halls on Sunday violates the equal protection clauses, defendant\u2019s motion to quash was properly allowed. Hence, the judgment of the Court of Appeals is reversed; and the cause is remanded to the Court of Appeals with direction to enter a judgment affirming the judgment of Judge Ervin.\nReversed.\nJustice Lake concurs in results.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "Attorney General Morgan and Associate Attorney General Baxter for the State.", "TJzzell & DuMont, by Harry DuMont and Ervin L. Ball, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH R. GREENWOOD\nNo. 14\n(Filed 15 March 1972)\n1. Municipal Corporations \u00a7 32\u2014 regulation of billiard and dance halls \u2014 abatement of nuisances\nA municipal corporation may by ordinance license and regulate the operation of pool and billiard rooms and dance halls, G.S. 160A-181; subject to constitutional limitations, it may by ordinance define and abate nuisances. G.S. 160A-174(a).\n2. Evidence \u00a7 1\u2014 judicial notice \u2014 municipal ordinance\nThe courts of this State will not take judicial notice of a municipal ordinance.\n3. Constitutional Law \u00a7 20\u2014 equal protection \u2014 legislative classifications\nThe equal protection clauses of the United States and North Carolina Constitutions impose upon law-making bodies the requirement that any legislative classification be based on differences that are reasonably related to the purposes of the act in which it is found.\n4. Constitutional Law \u00a7 20; Municipal Corporations \u00a7 32\u2014 Sunday closing ordinances \u2014 equal protection\nSunday closing legislation, like other legislation, may not discriminate arbitrarily either as between persons, or groups of persons, or as between activities which are prohibited and those which are permitted.\n5. Constitutional Law \u00a7 20\u2014 equal protection \u2014 classifications\nThe equal protection clauses do not require perfection in respect of classification, and in borderline cases, the legislative determination is entitled to great weight.\n6. Constitutional Law \u00a7 20; Municipal Corporations \u00a7 32\u2014 ordinance prohibiting operation of billiard hall on Sunday \u2014 violation of equal protection\nA municipal ordinance prohibiting the operation of a billiard hall \u201cat any time on Sunday\u201d violates the equal protection clauses of the United States and North Carolina Constitutions, since the operation of billiard halls on Sunday does not constitute an interference with the peace and quiet of that day in a manner or to an extent substantially different from the operation of other sporting or recreational facilities.\nJustice Lake concurs in result.\nAppeal by defendant under G.S. 7A-30(1) from the decision of the Court of Appeals reported in 12 N.C. App. 584, 184 S.E. 2d 386.\nThis criminal action was commenced in the District Court Division, Buncombe County, by a warrant based on an affidavit which alleged that, on or about December 13, 1970, defendant \u201cdid unlawfully, wilfully, Operate as an employee of the Family Recreation 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.\u201d\nThe portion of the ordinance referred to in the warrant is set out in the record 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 cause came on for hearing before District Court Judge Winner on December 22, 1970, on defendant\u2019s (oral) motion to quash the warrant on the ground that it was based on an unconstitutional ordinance. No evidence was offered. Briefs and oral arguments were submitted. Judge Winner considered and answered four specific questions, presumably those raised by defendant as grounds for his motion to quash.\nAnswering Question I, Judge Winner held that the ordinance came within the provisions of G.S. 160-200(33) and that Asheville had \u201cthe power to pass a constitutional ordinance in this area.\u201d Answering Question II, he held \u201cthat the regulations of businesses, in the area [in which] they may operate, is within the police power vested in the states, and . . . the ordinance is not unconstitutional for that reason.\u201d Answering Question III, he held \u201cit is not a denial of freedom of religion to prohibit businesses from opening on Sunday and . . . this ordinance is not unconstitutional for that reason.\u201d Question IV and Judge Winner\u2019s answer thereto are quoted in full below.\n\u201cQuestion IV: Is the ordinance unconstitutional in that it is a denial of equal protection of the laws, as granted by the Fourteenth Amendment of the United States Constitution? It has been held that statutes may be passed as long as they are not class legislation and are not made to apply arbitrarily to certain persons or classes or to make unreasonable discrimination between persons or classes. It is the opinion of the court that to make a distinction between billiard parlors and other forms of sporting activities for which one must pay a rental for the use of premises, is both unreasonable and arbitrary and it does create a discrimination between businesses of the same type or class with no apparent reason for the discrimination. This court cannot find any reasonable distinction between the operation of billiard halls and the operation of bowling alleys, snooker parlors, golf courses or tennis courts. In this day and time, there is nothing inherent in the playing of billiards, which distinguishes it from any of the above mentioned sports. It is therefore the opinion of this court that the ordinance named does deny the defendant the equal protection of the laws, and it is therefore unconstitutional.\u201d\nHolding the ordinance denied to defendant the equal protection of the laws, Judge Winner quashed the warrant and dismissed the action.\nAn appeal by the State from Judge Winner\u2019s judgment was heard at the January 25, 1971 Criminal Session of the Superior Court of Buncombe County by Ervin, J., who affirmed Judge Winner\u2019s judgment. On the State\u2019s appeal therefrom, Judge Ervin\u2019s judgment was reversed by the Court of Appeals. Defendant appeals to this Court as of right under G.S. 7A-80(1).\nAttorney General Morgan and Associate Attorney General Baxter for the State.\nTJzzell & DuMont, by Harry DuMont and Ervin L. Ball, Jr., for defendant appellant." }, "file_name": "0651-01", "first_page_order": 671, "last_page_order": 679 }