D & W, INC. v. City of Charlotte

Annotate this Case

151 S.E.2d 241 (1966)

268 N.C. 577

D & W, INC., t/a Merry Go-Go Round, on behalf of itself, and Diab, Inc., t/a Pecan Grove Supper Club, and such other citizens and plaintiffs of Mecklenburg County, North Carolina, affected by the Turlington Act and the Alcoholic Beverage Control Act of North Carolina v. The CITY OF CHARLOTTE et al.

No. 286.

Supreme Court of North Carolina.

November 30, 1966.

*244 Plumides & Plumides, Jerry W. Whitley, Charlotte, for plaintiff appellees.

T. W. Bruton, Atty. Gen., James F. Bullock, Asst. Atty. Gen., for defendant appellants.

John H. Small, Charlotte, amicus curiae.

SHARP, Justice.

Defendants' first assignment of error challenges the admissibility of the affidavit of Mr. Frank Snepp, a member of the Legislature of 1959, to show the legislative purpose in enacting Chapter 745, Session Laws of 1959, which amended G.S. § 18-78.1. This evidence was incompetent. More than a hundred years ago this Court held that "no evidence as to the motives of the Legislature can be heard to give operation to, or to take it from their acts. * * *" Drake v. Drake, 15 N.C. 110, 117. The meaning of a statute and the intention of the legislature which passed it, cannot be shown by the testimony of a member of the legislature; it "must be drawn from the construction of the act itself." Goins v. Trustees Indian Training School, 169 N.C. 736, 739, 86 S.E. 629, 631. In construing a statute, Merrimon, J., laid down the rule in State v. Partlow, 91 N.C. 550, 552:

"Its meaning in respect to what it has reference and the objects it embraces, as well as in other respects, is to be ascertained by appropriate means and indicia, such as the purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari materia, the preamble, the title, and other like means. But the meaning must be ascertained from the statute itself, and the means and signs to which, as appears upon its face, it has reference. It cannot be proved by a member of the legislature or other person, whether interested in its enactment or not. A statute is an act of the legislature as an organized body. It expresses the collective will of that body, and no single member of it, or all the members as individuals, can be heard to say what the meaning of the statute is. It must speak for and be construed by itself, by the means and signs indicated above. Otherwise, each individual might attribute to it a different meaning, and thus the legislative will and meaning be lost sight of. Whatever may be the views and purposes of those who procure the enactment of a statute, the legislature contemplates that its intention shall be ascertained from its words as embodied in it. And courts are not at liberty to accept the understanding of any individual as to the legislative intent."

Defendants' second assignment of error is that the court erred in denying their motion to dismiss the action. This motion *245 was based on the ground that equity will not interfere to prevent the enforcement of the criminal law. The general rule is well settled: Equity will not restrain the enforcement of a criminal statute or regulatory ordinance providing a penalty for its violation; it may be challenged and tested only by way of defense to a criminal prosecution based thereon. See Davis v. City of Charlotte, 242 N.C. 670, 89 S.E.2d 406. If the act is unconstitutional or, if valid, it is being enforced in an unlawful way because of a misinterpretation, these defenses will defeat any prosecution based on it. Thompson v. Town of Lumberton, 182 N.C. 260, 108 S.E. 722; Paul v. Washington, 134 N.C. 363, 47 S.E. 793, 65 L.R.A. 902; 2 Strong, N.C. Index, Injunctions § 5 (1959); 28 Am.Jur., Injunctions § 189 (1959). The legal remedies of "trial by jury, habeas corpus, motion, and plea are abundant safeguards in such instances, especially in the light of the serious consequences likely to follow the arbitrary tying of the hands of those intrusted with the enforcement of penal statutes." Monroe Greyhound Ass'n v. Quigley, 130 Misc. 357, 223 N.Y.S. 830, 831. To the general rule, however, there is an exception: If the statute or ordinance itself is void, its enforcement will be restrained where there is no adequate remedy at law and such action is necessary to protect property and fundamental human rights which are guaranteed by the constitution. G. I. Surplus Store, Inc. v. Hunter, 257 N.C. 206, 125 S.E.2d 764; Orange Speedway, Inc. v. Clayton, 247 N.C. 528, 101 S.E.2d 406; Roller v. Allen, 245 N.C. 516, 96 S.E.2d 851; Davis v. City of Charlotte, supra; McCormick v. Proctor, 217 N.C. 23, 6 S.E.2d 870; 28 Am.Jur., Injunctions § 188 (1959); 43 C.J.S. Injunctions § 158 (1945). The constitutionality of a statute, however, may never be tested by injunction unless a plaintiff alleges and shows that its enforcement will cause him individually to suffer a personal, direct, and irreparable injury to some constitutional right. A party who is not personally injured by it may not assail a statute's validity. Fox v. Board of Commissioners for the County of Durham, 244 N.C. 497, 94 S.E.2d 482; Newman v. Watkins (Comrs. of Vance), 208 N.C. 675, 182 S.E. 453.

Plaintiffs here do not question the validity of the Turlington Act or the ABC Act of 1937; they only question defendants' interpretation of these Acts. The general rule that equity will not interfere by injunction with police officers in the enforcement of the criminal laws applies, however, whether a plaintiff contends the act is void or the officials' interpretation of it is erroneous. 28 Am.Jur., Injunction § 183 (1959); 43 C.J.S. Injunctions § 156, p. 771 (1945).

"The fact that peace officers may be mistaken in their conclusions of fact, or in their interpretation of the law, or of any statutory provision, does not authorize a court of equity in restraining them in their future efforts to conscientiously enforce the law. They may make mistakes, and those arrested may be acquitted, but such matters do not justify a blanket injunction against honest law enforcement." Wood Bros. Thresher Co. v. Eicher, 231 Iowa 550, 1 N.W.2d 655, 660. Accord, Monroe Greyhound Ass'n v. Quigley, supra; Rutzen v. City of Belle Fourche, 71 S.D. 10, 20 N.W.2d 517; P. E. Harris & Co. v. O'Malley, 2 F.2d 810 (9th Cir. 1924).

There is nothing in the case at bar to take it out of the fundamental rule that equity will not interfere to prevent the enforcement of the criminal law. Plaintiffs do not contend that they have a constitutional right to provide a place for their patrons to consume alcoholic beverages as defined by G.S. § 18-60. They assert that the law does not prohibit them from doing so and that their patrons or customers have a legal right "to bring a small quantity of tax paid whiskey" to a restaurant for their own use, and that plaintiffs will lose business if their customers are arrested for possessing and consuming intoxicating beverages in restaurants. Obviously, plaintiffs' constitutional *246 right to earn a livelihood by engaging in the restaurant business is not infringed by either the Turlington Act or the ABC Act.

If it were to be assumed that the 1966 opinion of the Attorney General which triggered this action constituted an erroneous interpretation of these two enactments and that defendants were acting upon a misapprehension of the meaning of those laws when they announced their intention to enforce them in accordance with that opinion, still plaintiffs have shown no direct, personal injury. If fewer people "eat out" because they cannot take their liquor away from home and plaintiffs' income is reduced in consequence, the loss is merely consequential. Furthermore, the fact that they may suffer some pecuniary loss from such enforcement is not the test. Suddreth v. City of Charlotte, 223 N.C. 630, 27 S.E.2d 650.

The action of the court below in issuing the injunction in question is without sanction in precedent or principles of equity. Ordinarily, in a case thus constituted we would decline to pass upon the question presented and order the action dismissed. Dare County v. Mater, 235 N.C. 179, 69 S.E.2d 244; Town of Clinton v. Ross, 226 N.C. 682, 40 S.E.2d 593; Jarrell v. Snow, 225 N.C. 430, 35 S.E.2d 273; Carolina Motor Service v. Atlantic Coast Line R.R. Co., 210 N.C. 36, 185 S.E. 479, 104 A.L.R. 1165. Such procedure, however, would not end this controversy, which has become a matter of great public interest. As Barnhill, J. (later C.J.), said in Suddreth v. City of Charlotte, supra, 223 N.C. at 634, 27 S.E.2d at 654, dismissal would "tend to prolong an unfortunately provocative situation. * * * Hence, we have exercised our discretionary right to express an opinion on the merits of the exceptive assignments of error * * *" See also Turner v. City of New Bern, 187 N.C. 541, 122 S.E. 469; 1 Strong, N.C.Index, Appeal and Error § 2 (1957).

We come, then, to the determinative question in this controversy: Where and under what circumstances in an area which has elected to come under the ABC Act (wet or conforming area), may one legally possess alcoholic beverages as defined in G.S. § 18-60, i.e., all beverages containing more than 14 per centum of alcohol? (Beer, wine, and ales containing a lower alcoholic content are eliminated by this definition.) This is a question which has not heretofore been squarely presented to this Court. To find the answer we must construe the Turlington Act (N.C.Pub. Laws 1923, ch. 1, codified as G.S. § 18-1 through G.S. § 18-30) as amended by the ABC Act (G.S. § 18-36 through G.S. § 18-62). Defendants contend that one may legally possess alcoholic beverages in any area in North Carolina (whether it be wet or dry) at the following places only: (1) in his own dwelling as provided by G.S. § 18-11; (2) while transporting not more than one gallon from a point outside the State to a point inside the State as provided in G.S. § 18-58, or from an ABC store in the State to his dwelling as provided by G.S. § 18-49. Plaintiffs, although conceding that the statutes in question "are somewhat ambiguous and are subject to construction," contend that in a wet or conforming area such as Mecklenburg County, "possession of alcoholic beverages purchased from the ABC system is legal without restriction as to place" so long as the possession is not for the purpose of sale. More specifically, they contend that a person can legally bring "a small quantity of tax paid liquor" with him to a restaurant, and that restaurants and clubs selling beer and wine under an "on premise" license (G.S. § 18-72) may legally permit the consumption of alcoholic beverages on their premises. They insist that G.S. § 18-78.1 (5), as rewritten by the General Assembly in 1959, no longer forbids the consumption of alcoholic beverages on such licensed premises.

The Turlington Act is still the primary law in every area which has not elected to come under the ABC Act. G.S. § 18-61; State v. Anderson and State v. Brown, 265 *247 N.C. 548, 144 S.E.2d 581; State v. Welch, 232 N.C. 77, 59 S.E.2d 199; State v. Wilson, 227 N.C. 43, 40 S.E.2d 449; State v. Davis, 214 N.C. 787, 1 S.E.2d 104. Where liquor stores have been established under the ABC Act, the Turlington Act is the law except to the extent it has been modified or repealed by the ABC Act (N.C.Pub.Laws 1937, ch. 49). State v. May, 248 N.C. 60, 102 S.E.2d 418; State v. Hill, 236 N.C. 704, 73 S.E.2d 894; State v. Barnhardt, 230 N.C. 223, 52 S.E.2d 904; State v. Carpenter, 215 N.C. 635, 3 S.E.2d 34; State v. Davis, supra. The ABC Act contains no clause specifically repealing the Turlington Act or any other provisions of the law relating to alcoholic beverages. It therefore repealed only those laws which are "utterly irreconcilable" with it. "Repeals of statutes by implication are not favored, and, to work a repeal, the implication must be necessary." State v. Epps, 213 N.C. 709, 716, 197 S.E. 580, 584. "The two acts constitute the body of our law relating to the purchase, possession, and sale of intoxicating liquor and must be construed in pari materia." State v. Avery, 236 N. C. 276, 279, 72 S.E.2d 670, 672. Accord, State v. Suddreth, 223 N.C. 610, 27 S.E.2d 623. The two acts have been thus construed since the passage of the ABC Act and the rule "is not now to be broken in upon."

In 1935, by two acts (N.C.Pub.Laws 1935, ch. 418 and ch. 493), the General Assembly authorized the sale of alcoholic beverages in 18 counties under the control of a County Liquor Commission or an Alcoholic Beverage Control Board. A notable difference existed between these two acts and the ABC Act, which specifically repealed them: The former explicitly exempted each of the 18 counties to which they applied from the application of the Turlington Act when the voters approved the establishment of liquor stores; the ABC Act does not exempt any county from Turlington's application.

Under the Turlington Act it is unlawful for any person anywhere in the State to "manufacture, sell, transport, import, export, deliver, furnish, purchase, or possess any intoxicating liquor" as defined in the Act (G.S. § 18-2) except: (1) It is not unlawful to possess liquor in one's private dwelling while it is occupied and used as his dwelling only and provided "such liquor is for use only for the personal consumption of the owner thereof, and his family residing in such dwelling, and of his bona fide guests when entertained by him therein." G.S. § 18-11. (2) It is not unlawful to possess liquor for nonbeverage purposes and wine for sacramental purposes as provided in G.S. § 18-2, § 18-20, and § 18-21. In other words, the Turlington Act was strict prohibition; it was even more stringent than the Federal Volstead Act. State v. Sigmon, 190 N.C. 684, 130 S.E. 854; State v. Hickey, 198 N.C. 45, 150 S.E. 615. For all practical purposes, under Turlington, the only place one could legally possess any intoxicating liquor was at home. State v. Shinn, 238 N.C. 535, 78 S.E.2d 388. Even so, the Turlington Act made it unlawful for a person to purchase or transport intoxicating liquor anywhere in the State. State v. Winston, 194 N.C. 243, 139 S.E. 240. Upon the enactment of the ABC Act it became lawful to transport, for one's own personal use, not in excess of one gallon if the beverage were legally acquired, and if it were still in its original container, seal and cap undisturbed. Specifically, G.S. § 18-49 authorized such transportation from a county in North Carolina coming under the provisions of the ABC Act to or through another county in North Carolina not coming under the provisions of this Act. G.S. § 18-58, without making any distinction between dry and wet counties, authorized one to purchase "outside of this State and bring into the same for his own personal use" not more than one gallon. Thus, not more than one gallon can legally be brought from outside the State into either area. G.S. § 18-49 does not specifically authorize the transportation of any quantity of alcoholic beverage from an ABC store to any place in the wet county where purchased. Obviously, *248 however, the right to buy the liquor includes the right to take it home. It was equally obvious that the legislature intended G.S. § 18-49 to have statewide application. To have licensed residents of a wet county to transport an unlimited quantity of liquor within the county would have defeated its stated purpose "to establish a system of control of the sale of certain alcoholic beverages in North Carolina." N.C.Pub.Laws 1937, ch. 49, § 1. Such was the view of this Court in 1938, one year after the ratification of the ABC Act, when it said:

"The expressed purpose looking to uniformity and the several provisions of the act make it apparent that certain provisions of the 1937 act are to be given State-wide effect. This is particularly true as to the transportation provisions with which the Turlington Act, Ch. 1, Public Laws 1923, conflicts only in respect to liquor being transported to Alcoholic Beverage Control Stores, and whiskey purchased from a County Store and being transported in a sealed container in an amount not to exceed one gallon for personal use, and as to the transportation of a like quantity brought into the State in sealed packages and upon which the taxes have been paid. Hence, it is still unlawful in this State for any person to possess or transport intoxicating liquors for any purpose other than those specified in the Act or in a quantity in excess of one gallon, unless such liquor is in actual course of delivery to a County Store. Therefore, Ch. 1, Public Laws 1923, in so far as it deals with the transportation within the State of intoxicating liquors is not inconsistent with the 1937 Act except in the indicated particulars and it is still in force." State v. Davis, supra, 214 N.C. at 791, 1 S.E.2d at 106-107.

Neither G.S. § 18-49 nor G.S. § 18-58 specifically designates the place to which liquor legally purchased may be transported. Such a designation was unnecessary. Since the only place where liquor may be legally possessed is in one's private dwelling, that is the only place to which it may be legally transported. See State v. Welborn, 249 N.C. 268, 271, 106 S.E.2d 204, 205.

The legislature having made it lawful for one to purchase and transport not more than one gallon of alcoholic beverages from an ABC store to one's home for the purposes mentioned in G.S. § 18-49, this Court held that so long as one did not possess more than one gallon in his home he was protected from the presumption of illegality, or the rule of evidence, created by G.S. § 18-11 and G.S. § 18-32(2). To that extent only, G.S. § 18-11 and G.S. § 18-32(2) were modified by G.S. § 18-49. State v. Suddreth, supra; State v. Barnhardt, supra; State v. Hill, supra. Although one may possess in his home an unlimited amount of alcoholic beverages for the use of himself and his bona fide guests, if he possesses more than one gallon, the burden devolves upon him to establish not only that the possession thereof comes within the exceptive provisions of G.S. § 18-11, but also "that it was legally acquired and transported to his private dwelling and there kept, not for sale, but for family uses only." State v. Barnhardt, supra, 230 N.C. at 228, 52 S.E.2d at 907.

Other than excluding the possession of one gallon of alcoholic beverages in one's home from the presumption created by G.S. § 18-11 and G.S. § 18-32(2) and the license given by G.S. § 18-49 and G.S. § 18-58 to transport not more than one gallon for the purpose therein stated, the ABC Act does not ipsissimis verbis grant any greater privilege to possess alcoholic beverages than did the Turlington Act.

The Turlington Act (G.S. § 18-15), forbids any corporation, club, association, or person, to keep or maintain, alone or by association with others, "a clubroom or other place where intoxicating liquor is received, kept, or stored for barter, sale, exchange, distribution, or division among the members of any such club or association * * * or among any other persons by any means whatever * * *" It also *249 forbids any corporation, club, association, or person from acting as agent in procuring or keeping intoxicating liquor for any such purpose. No provision in the ABC Act modifies this section.

The Turlington Act (G.S. § 18-18) provides: "It is unlawful for any person to serve with meals, or otherwise, any liquor or intoxicating bitters, where any charge is made for such meals or service." No provision of the ABC Act modifies this section, which recognizes the right given one by G.S. § 18-11 to serve liquor in one's home to one's bona fide guests and outlaws serving it with meals at any place where a charge is made for the meal or service. Restaurants charge for meals and their service! The prohibition of G.S. § 18-18 extends to any person: It thus includes the restaurateur and his employees; the host who entertains his guests at a restaurant or club; and the patron who brings his bottle and serves himselfnone of whom may legally transport the liquor to the restaurant in the first place!

Plaintiffs assert that nowhere in the ABC Act, except in G.S. § 18-47 and G.S. § 18-51, is the possession, display, and consumption of alcoholic beverages prohibited. They argue, therefore, that in wet counties it is permitted at all other places. G.S. § 18-47 prohibits drinking on the premises of liquor stores and other property used by a county ABC Board. G.S. § 18-51 makes it unlawful for any person to drink alcoholic beverages or to offer a drink to another upon the premises occupied by an ABC store or a county ABC Board. It also makes it unlawful for any person "to be or become intoxicated or to make any public display of any intoxicating beverages at any athletic contest or public place in North Carolina." In G.S. § 18-47 and G.S. § 18-51, the legislature was giving attention to specific places where it obviously thought special hazards existed. These two statutes define additional criminal offenses and were designed, inter alia, to prevent drinking before driving. It is a reasonable assumption that one who drinks at home is less likely to be guilty of drunken driving than one who drinks away from home. To hold that by specifically forbidding the drinking of intoxicants on premises controlled by ABC Boards and by proscribing intoxication and the public display of intoxicating beverages at athletic contests the General Assembly impliedly repealed the application of G.S. § 18-2, G.S. § 18-15, and G.S. § 18-18 to wet counties and authorized unrestricted possession at all other public places is to attribute to it a furtiveness in dealing with the liquor question which that legislative body does not merit. As defendants point out in their brief, such a construction would mean that in a wet county liquor might be displayed and consumed, not only in restaurants, but in stores, public buildings (including courthouses), parks, swimming poolsin every place except on ABC premises, public roads and streets, or at athletic contests. Such a drastic change in the law is not so readily implied.

It is noted that the Turlington Act proscribed both whiskey and beer. G.S. § 18-1; State v. Anderson and State v. Brown, supra. The Beverage Control Act of 1939 (G.S. § 18-63 through G.S. § 18-93), which relates to unfortified wines, beer, ale, porter, and other brewed or fermented beverages defined by G.S. § 18-64, specifically provides (G.S. § 18-66): "The purchase, transportation and possession of beverages enumerated in § 18-64 by individuals for their own use are permitted without restriction or regulation." This is plain talk indeed. It cannot, therefore, be doubted that beer and the other beverages defined in G.S. § 18-64 are exempted from the Turlington Act. With reference to the stronger beverages defined by G.S. § 18-60, the legislature included in the ABC Act no provision similar to G.S. § 18-66. When it decides to exempt these alcoholic beverages from the Turlington Act, it will say so in language equally clear. In the meantime, "it is not ours to make the law. That is legislative. It is ours to interpret the law as the legislature enacts it." State *250 v. Suddreth, supra, 223 N.C. at 616, 27 S.E.2d at 626.

Plaintiffs' contention that the 1959 amendment to G.S. § 18-78.1(5) (N.C.Pub. Laws 1959, ch. 745, § 2) authorized the consumption of tax paid whiskey on the premises of those places holding beer and wine permits from the ABC Board is likewise without merit. Prior to June 4, 1959, G.S. § 18-78.1(5) provided that no holder of a license authorizing the retail sale of fortified wines and beverages as defined in G.S. § 18-64 for consumption on or off the premises where sold shall "sell, offer for sale, possess, or permit the consumption on the licensed premises of any kind of alcoholic liquors the sale of which is not authorized under his license." Since the 1959 amendment, this statute provides that no such licensee shall "sell, offer for sale, possess, or knowingly permit the consumption on the licensed premises of any kind of alcoholic liquors the sale or possession of which is not authorized by law." (Italics denote the changes.)

In Campbell v. North Carolina State Board of Alcoholic Control, 263 N.C. 224, 139 S.E.2d 197, the petitioner appealed from an order of the State Board of Alcoholic Control which suspended his retail license to sell beer because of sales to minors under the age of 18. In discussing the 1959 amendment to G.S. § 18-78.1(5), Higgins, J., said:

"(I)t appears by the punctuation that the word `knowingly' does not modify sell, offer for sale, or possess, but does modify `permit the consumption on the premises.' * * * The proprietor is responsible if he knowingly permits another to drink on his premises even if he carried his own beverage." Id. at 226, 139 S.E.2d at 199. Emphasis added.)

Cf. Boyd v. Allen, 246 N.C. 150, 97 S.E.2d 864. A restaurateur with a beer and wine license might derive some comfort from the addition of the word knowingly in subsection 5provided his "brown bag" clientele were sufficiently careful and discreet. No comfort, however, is provided by substituting the words by law for under his license, for his patrons may not legally transport alcoholic beverages to his premises or possess them thereand neither he nor they, of course, is authorized to sell them. Again we say that had the legislature intended to permit the consumption of strong alcoholic beverages in restaurants, stores, filling stations, and on the premises of every business which has a beer or wine license, it would have "spelled out" this drastic change in the law. Any such interpretation would disrupt the plan of control set out in G.S. § 18-78.1(5), and abolish the safeguards by which the legislature has attempted to protect the traveling public from drunken drivers.

"Repeals by implication are not favored. A statute will not be construed as repealing prior acts on the same subject (in the absence of express words to that effect) unless there is an irreconcilable repugnancy between them, or unless the new law is evidently intended to supersede all prior acts on the matter in hand and to comprise in itself the sole and complete system of legislation on that subject." Black on Interpretation of Laws, § 53 (1st Ed.1896).

In brief summary, the law with reference to the possession of whiskey or similar intoxicating beverages is this: Whether the area be wet or dry, conforming or nonconforming, a person may legally possess alcoholic liquors as defined by G.S. § 18-60 only in his private dwelling as provided by G.S. § 18-11 and while transporting not in excess of one gallon purchased out of the State or from an ABC store within the State to his dwelling as provided by G.S. § 18-49 and G.S. § 18-58. This has been the law since the passage of the ABC Act of 1937.

It is the prerogative and function of the legislative department of the *251 government to make the law. Only the General Assembly, therefore, can establish the public policy of this State with reference to alcoholic beverages. The courts are not the judges of the wisdom or impolicy of a law; their province is to interpret and apply the law which the legislature has written. Wachovia Bank & Trust Co. v. Green, 236 N.C. 654, 73 S.E.2d 879; State v. Scoggin, 236 N.C. 19, 72 S.E.2d 54; Ferguson v. Riddle, 233 N.C. 54, 62 S.E.2d 525; State v. Means, 175 N.C. 820, 95 S.E. 912. The judiciary will interfere with acts of the legislative body only when they are beyond the bonds prescribed by the constitution. State v. Revis, 193 N.C. 192, 136 S.E. 346, 50 A. L.R. 98.

The judgment of the court below is

Reversed.