State ex rel. Amick v. Lancaster, 228 N.C. 157 (1947)

Nov. 5, 1947 · Supreme Court of North Carolina

228 N.C. 157

STATE OF NORTH CAROLINA, Ex Rel. T. C. AMICK et al. v. W. G. LANCASTER et al.

(Filed 5 November, 1947.)

1. Appeal and Error § 401—

Tbe Supreme Court will not determine a constitutional question, even when properly presented, if there be also present some other ground on which the case may b'e made to turn.

2. Nuisances § 7—

, The statutory procedure to abate a public nuisance, G. S., 19-2, is not appropriate against a municipal alcoholic control board set up under color of legislative authority (Chap. 862, Session Laws of 1947), nor against the lessor of the building used for the purpose of operating a liquor control store.

Appeal by plaintiffs from Nimocks, J., 22 September, 1947, in Chambers at Louisburg. From FbaNeliN.

Civil action in tbe name of tbe State on relation of citizens of Franklin County to padlock premises used in operation of “Town Liquor Control Store” and to enjoin its maintenance as a nuisance.

Pursuant to Cbap. 862, Session Laws of 1947, a “Town Liquor Control Store” in tbe Town of Louisburg was authorized by vote of tbe people, and is now being operated in a building owned by W. G. Lancaster and leased by him to “Tbe Town of Louisburg Board of Alcoholic Control” for such purpose.

It is alleged that tbe Act of Assembly under which tbe defendants have established, and are now operating, tbe Town Liquor Control Store in question is unconstitutional and all proceedings thereunder are perforce illegal and void. Hence, tbe plaintiffs invoke tbe provisions of G. S., 19-1 and 19-2, to have tbe store declared an offense against public morals, or a nuisance, and its operation as such abated.

After a full bearing, “tbe court being of opinion that plaintiffs relators are not entitled to tbe relief prayed for in tbe complaint,” dismissed the action with costs.

Plaintiffs appeal, assigning errors.

G. M. Beam and Hill Yarborough for plaintiffs, appellants.

Malone & Malone for defendants, Allen, Sykes, Wheless, Joyner, and Collins, appellees.

Stacy, C. J.

It is not stated whether tbe action was dismissed on procedural or constitutional grounds. Hence, we do not reach tbe constitutional question, if tbe remedy be defective or inappropriate. “Tbe courts will not determine a constitutional question, even when properly presented, if there be also present some other ground upon which the case may be made to turn.” S. v. Lueders, 214 N. C., 558, 200 S. E., 22.

It would be strange indeed, if the same government which authorizes the establishment of a “liquor control store,” should also provide for its padlocking at the instance of a private citizen and thus render all who are connected with its maintenance “guilty of a nuisance.” Gr. S., 19-1. It was never intended that the procedure here 'invoked to abate a nuisance, Gr. S., 19-2, should be applied against an alcoholic control board set up under color of legislative authority, or against one who rents a building to such a board for the purpose of operating a liquor control store. The remedy selected seems inappropriate.

There was no error in dismissing the action.

Affirmed.