State v. . Dannenberg

Brown, J. It appears in the special verdict that the revenue' officials of the United States, pursuant to statute, require that all drinks or liquids sold containing as much as one-half of one per cent alcohol should subject the seller to a special tax of $20 per annum for malt liquor. Further, that prior to 1 July, 1908, the defendant paid the $20 Federal tax upon malt-liquor drinks, and on 31 July, within the corporate limits of Morehead City, sold to one Styson a drink of a certain beverage whose alcoholic *801 part was derived from malt, in tbe definition of United States statute, containing over one-balf of one per cent of alcohol’and less than two per cent. We find nothing in the charter of More-head City (chapter 111, Private Laws 1887) which conferred upon the municipal authorities the right to prohibit the sale of the beverage of the character described' in the special verdict.' It is admitted by the State that the beverage is not intoxicating in its effect, and no such finding is to be found in the record. Assuming that it was intoxicating, it is admitted that the sale of intoxicating liquors has long been prohibited within the county of Carteret by legislative enactments which make the violation of them indictable offenses under the laws of the State. Municipal ordinances must harmonize with such laws, and where the offense is covered by the latter the former must give way. This has long been settled. Washington v. Hammond, 76 N. C., 33. State v. Langston, 88 N. C., 692; State v. Brittain, 89 N. C., 575. The sale of spirituous, vinous or malt liquors (except in specially prohibited territory), up to 1 January, 1909, was licensed in 'this State by the general law, and the character of licenses required in incorporated cities and towns is specified by the Re-visal, sec. 3529, and penalties for its violation are prescribed. In the absence of chartered authority, the municipality of Morehead City could not prohibit their sale absolutely. State v. Brittain, supra. If the drink was not intoxicating, we find nothing in the charter of the town or any finding of facts which warrant the authorities in prohibiting its sale upon other grounds. There is nothing in the case from which'it can be reasonably inferred’ that such an ordinance tends “to insure good order, improve the streets or preserve the health, comfort or convenience of the citizens of said town,” as set out in the municipal charter. Municipal corporations have no inherent police powers and can exercise only those conferred by the State. 1 Dillon on Mun. Oorp.; sec. 89; State v. Ray, 131 N. C., 816. Any fair, reasonable doubt concerning the exercise of such powers is resolved by the courts against the corporation. State v. Webber, 107 N. C., 962; State v. Thomas, 118 N. C., 1221. *802 If tbe purpose of tbe ordinance is to repress tbe sale of intoxicating drinks (wbicb it evidently was), we find that it is not in harmony witb tbe statutes of tbe State, and therefore must give way. If it has some other purpose it is so obscure that ordinary perception cannot discover it, and it cannot be referred by reasonable construction to any of tbe chartered powers of tbe corporation. It therefore becomes an invasion of tbe natural rights and inherent personal liberty of tbe citizen. Nor can we answer affirmatively tbe inquiry of tbe Attorney-General, “But is there not somewhere between tbe buttermilk of tbe 'pure in heart’ and tbe brandy of tbe 'morally stunted’ a 'twilight zone,’ and does not tbe drink sold by tbe defendant lie within this zone?” We are of opinion that tbe entire zone has been pre-empted by tbe statutes of tbe State and that there is no territory open to entry. Tbe cause is remanded to tbe Superior Court of Carteret County, witb direction to enter a judgment of not guilty. Reversed. Clark, C. J., and Hoke, J., dissenting.