ORDINANCE BY BOARD OF COMMISSIONERS.-Where authority to make ordinances for a town is vested in a board of health, an ordinance passed by the board of commissioners is invalid. Beacham, 125-654.

EARLY CLOSING OF STORES.-An ordinance of a town requiring stores to be closed after 7:30 in the evening is invalid, in the absence of special authority to make it in the charter. Ray, 131-814.

VIOLATION A MISDEMEANOR.-The violation of a town ordinance is a misdemeanor under the general law. Irvin, 126-989.

An ordinance providing that the violation of any ordinance to which no fine or penalty is affixed shall constitute a misdemeanor, and shall subject the offender to a fine of not more than $50, or imprisonment for 30 days, is void on account of uncertainty in the fine or penalty. Irvin, 126–989.

STORE SIGNS.-A store sign which amounts to an obstruction which tends to hinder, delay or incommode, or endanger the use of the sidewalk by pedestrians may be removed under an ordinance. Higgs, 126–1014.

An ornamental electrical sign, securely attached to a building, 14 feet high from the pavement, and extending four and a half feet across the sidewalk, is not an obstruction, and can not be removed under an ordinance requiring the removal of signs suspended over sidewalks. Higgs, 126–1014.

DISTURBANCE-VOID WARRANT.-A warrant charging the creation of a disturbance without specifying how it was done is fatally defective. Hettrick, 126-977.

TAX ON TOBACCO BUYERS.-An ordinance providing that "each tobacco buyer shall pay an annual tax of $10 in advance" is valid. Irvin, 126-989.

TAXATION.-Power granted to a town to levy and collect taxes on all persons and subjects of taxation which it is in the power of the legislature to tax for state and county purposes is valid. Irvin, 126–989.

COMPENSATION FOR TAKING LAND.-A charter which provides for notice when the landowner's property is to be appraised and fixes compensation is valid though no provision is made for notifying him of contemplated action by the commissioners. Jones, 139-613.

SELLING PORTRAITS.-Portraits were shipped from another state by a portrait company to itself in a city in this state; defendant, as the agent of the company, received the portraits in the city in this state, and delivered them to purchasers for whom they had been made in said city. An ordinance of said city required a license to sell or deliver pictures previously ordered, and prescribed a fine for engaging in that business without paying the license tax. Neither defendant nor his company paid the tax: Held, that defendant was guilty, and that the ordinance was not in violation of art. 1, sec. 8 of Const. U. S. Caldwell, 127-521.

SUBURB NOT A TOWN.-An unincorporated suburb outside the limits of a city is not a town within the meaning of a statute imposing a license tax for buying and selling fresh meats in towns and cities. Green, 126–1032.

REGULATION OF TRAINS.-A contract between a city and a railroad company by which it is provided that the railroad may exercise a right-of-way for one track in and through a certain street can not confer a permanent easement upon the company, in the absence of express power in the charter to grant such easement, and an ordinance subsequently passed regulating the operation of trains on the street and providing that no train shall be stopped on the street except for the reception and delivery of freight, may be enforced against the company. Atlantic R. R. Co., 141-736.

Where an ordinance provides that no engine or train shall be stopped on any street, except at the foot of the same for the reception and delivery of freight, shifting cars on such street for the purpose of making up trains, constitutes a violation of the ordinance. Atlantic R. R. Co., 141-736.

FRESH MEATS.-A town ordinance prohibiting the sale of fresh meats within the corporate limits of the town outside the market-house is valid. Pendergrass, 106-664.

An ordinance prohibited the sale of fresh meats within certain limits without a license, and defendant who conducted the business of a seller of fresh meats outside of such limits, received a telephone mesage from a person within such limits to bring to the latter fresh meats at an agreed price, and defendant subsequently delivered and received pay for the same: Held, that as the buyer would have had the right to reject the meats if not as ordered, the transaction was executory until the delivery, and the sale, therefore, took place within the prohibited limits, and was a violation of the ordinance. Wernwag, 116–1061.

HOG PENS.-A town ordinance is not void for discrimination, which prohibits a citizen from keeping hog pens within 100 yards of the residence of another, does not prohibit him from keeping them within like distance from his own. Hord, 122--1092.

The commissioners of a town can prohibit the keeping of hog pens in a town to such an extent as to protect the public from nuisances, and of the limits necessary to be prescribed they are the sole judges unless the ordinance be unreasonable. Hord, 122-1092.

SUPPRESSING BAWDYHOUSES.-Under a general power in a charter to suppress houses of ill fame, a city may pass an ordinance forbidding owners to rent houses for the purpose of being used as bawdyhouses, or with a knowledge that they will be so used by the lessee; but its authorities are not thereby empowered to define what is a house of ill fame, or declare a given house to be a bawdyhouse, or to enact that the permitting of prostitution by the owner or occupant of any house therein shall constitute such owner or occupant the keeper of a house of ill fame. Webber, 107-962.

WARRANT.-A warrant joining two defendants charged with a violation of a town ordinance by being drunk in a public place, is fatally defective. Drunkenness is a personal vice. Deaton, 92-788.

* * *

A warrant which charges that defendant "did, while driving out of town, act in a disorderly manner by driving at a furious rate and did whoop and hollow so loud as to disturb the quiet of the town contrary to law and in violation of the sixth ordinance of said town and against the peace and dignity of the state," is sufficient without giving the contents of the ordinance, or averring the authority by which the ordinance was passed, since the court will take notice of the general law giving town authorities power "to enforce their by-laws and regulations." Merritt, 83–677.

It is not necessary to set out the ordinance in the warrant. It is sufficient to refer to it by such indicia as point it out with sufficient certainty. Cainan, 94-880.

REPAIRING STREETS.-The commissioners of a town are not of common right bound to repair the streets, and, therefore, an indictment against them for not repairing must set forth on its face how that obligation has been imposed upon them. Commissioners, 15 (4 Dev.), 346.

WORKING STREETS.-Where the charter of a town authorizes its commissioners to adopt ordinances "for the improvement of the streets," an ordinance requiring all male citizens between the ages of eighteen and forty-five years to work a certain number of days on the streets and imposing a fine or imprisonment for willful refusal to do so, is valid, and a violation of it is a misdemeanor within the jurisdiction of the mayor. Smith, 103—403.

LOUD AND BOISTEROUS LANGUAGE.-An ordinance punishing by a fine the use of "loud and boisterous cursing and swearing in any street, house or elsewhere in the city," is valid. Cainan, 94-880.

An indictment under such ordinance need not set out the words used by defendant. Ib.

DEFAULTING WITNESS.-A fine of $8 imposed by a mayor upon a defaulting witness for contempt in disobeying a subpoena is not excessive. Aiken, 113 -651.

PENALTY MUST BE CERTAIN.-An ordinance fixing a penalty of not more than five dollars is void for uncertainty. Cainan, 94-883.

A town ordinance which leaves the fine or penalty imposed by it uncertain as to amount is void. Rice, 97-421.

If the penalty is left to be fixed in the discretion of the court the ordinance is void. Worth, 95-615.

If the penalty is not to exceed a fine of fifty dollars or imprisonment thirty days, the ordinance is void for uncertainty. Crenshaw, 94—877.

DISCRETION-VALID ORDINANCE.-An ordinance making the penalty certain, but providing that the mayor, in his discretion, may remit a part of it, is valid. Cainan, 94-883.

JURY TRIALS-CONSTITUTION.-Under Const. N. C., art. 1, sec. 13, and art. 4, sections 12, 14 and 27, the legislature may constitute the mayor of a town an "inferior court, with the jurisdiction of a justice of the peace," or a "special court within the corporate limits of the town," with a larger jurisdiction than a justice of the peace, and may dispense with jury trials in "petty misdemeanors," and provide other means of trial for such offenses. Such being the case violators of sections 3 and 4 of the ordinance of Morganton, not only incur the penalty therein prescribed, but under sections 11 and 12 of the charter of said town are also guilty of a misdemeanor, and may be punished by the mayor as a "special court." Powell, 97-417.

WHERE PART OF ORDINANCE IS VOID.-If a part of an ordinance is void, all other clauses with which the invalid part is necessarily connected or which are dependent on it are void also. Webber, 107—962.

LICENSE TAX.-The power to license persons for the privilege of carrying on trades and to require a price therefor is a police power, but does not give the right to use the license as a mode of taxation for revenue, in the absence of a clear intent in the charter. Bean, 91–554.

The legislature may confer on a municipal corporation the authority to forbid the exposure for sale of produce or other merchandise on any sidewalk, or the space in front of a building used as a sidewalk, in such manner as may incommode passengers, notwithstanding the municipality may not have acquired an easement or title to the soil in the area within which the prohibition is intended to operate. Summerfield, 107—895.

A tax imposed by a municipal government on keepers of livery stables is not a tax on property, but a tax on occupations or vocations, and is not unconstitutional. Powell, 100-525.

On indictment against a person for refusing and neglecting to take out a license tax imposed by a city ordinance, a special verdict which fails to specify the trade or occupation carried on by defendant and to set forth the specific provisions of the ordinance alleged to have been violated, is fatally defective. Finlayson, 113–628.

An act authorizing the levy of a tax on a particular date will be construed as authorizing the levy on that date or within a reasonable time thereafter. Worth, 116-1007.

A municipality authorized to tax trades, professions, franchises and incomes is not bound to tax them uniformly as to amount. Worth, 116–1007.

A tax upon the manufacture and sale of ice is valid under authority in the charter to tax all subjects of taxation under section 3, article 5, of the constitution. Worth, 116-1007.

The word "trade" when used in defining the power to tax, includes any employment or business for gain or profit. Worth, 116-1007.

ABUSE OR INSULT OF OFFICER.-The commissioners of a town have no power under this statute to enact an ordinance declaring it to be "unlawful for any person to abuse or insult any officer of the town, or member of the police, while in the discharge of his duty." Clay, 118—1234.

SPECIAL POLICEMAN.-An act authorizing the mayor of a town "to appoint special policemen for the protection of property and the preservation of the peace," does not give the mayor power to appoint policemen generally and for an indefinite time, but only to place on duty, at extraordinary times, special policemen to aid the regular policemen to meet the unusual and extraordinary needs of such occasions. Holmes, 118-1201.

PUBLIC HEALTH.-Ordinances relating to the public health and peace of a community are to be commended and encouraged by the courts, and they will not be set aside unless clearly unreasonable. Taft, 118-1190.

SECOND-HAND CLOTHING.-An ordinance prohibiting absolutely the importation and sale of second-hand clothing is unreasonable and void, in that it prohibits a business lawful in itself and not necessarily dangerous, but restrictions may be thrown around such business by requiring fumigation and disinfection, and assurances that it has not been brought from infected places. Taft, 118-1190.

LAWFUL BUSINESS CAN NOT Be Prohibited.-Municipalities having poower to abate nuisances can not absolutely prohibit a lawful business not necessarily a nuisance, but may abate it when so carried on as to constitute a nuisance. Taft, 118-1190.

DISORDERLY CONDUCT.-To call one a "damned highway robber" in a public restaurant, loud enough to be heard on the street, is punishable under an ordinance against disorderly conduct. Sherrard, 117-716.

HOGS RUNNING AT LARGE.-An ordinance that no hog shall run at large within the town limits, and prescribing a penalty against the owner for its violation, whether the owner lives within or without the corporate limits, is valid. Tweedy, 115-704.

PROFANE LANGUAGE.-An ordinance prohibiting "the use of profane language in the town" is invalid. Horne, 115-739.

JURISDICTION.—A grant to a riparian owner, running with a navigable stream, extends only to the low-water mark and not to the thread of the stream, and in defining the limits of an incorporated town bordering on such a stream the same rule of construction applies; therefore, where the state confers municipal powers upon a corporation and describes the boundary as running with a navigable river, the jurisdiction of such municipality does not extend beyond the low-water mark in the absence of some provision in its charter expressly or by fair implication extending the limit of its jurisdiction. Eason, 114-787.

MINOR ENTERING BARROOM.—An ordinance prohibiting an unmarried minor from entering a barroom is valid. Austin, 114–855.

The legislature may declare it unlawful for a minor to enter a barroom, and may transfer this power to a municipality. Austin, 114-855.

FINE AND PENALTY SYNONYMOUS.-An objection to an ordinance that it provides for a "fine" instead of a "penalty" is without force, since the two words are used interchangeably. Stevens, 114—873.

LIQUOR SELLER OCCUPYING OWN PREMISES.-An ordinance forbidding one who sells liquor to occupy his own premises between certain hours is void. Thomas, 118-1221.

LOUD AND BOISTEROUS SWEARING.-A town ordinance punishing by a fine every person guilty of "loud and boisterous cursing and swearing, or other disorderly conduct in any street, house or alley," is valid. Dednam, 98—712.

SELLING LIQUOR ON SUNDAY.-A town ordinance punishing the offense of selling liquor on Sunday is void, since such offense is against the general law of the state. Langston, 88-692.

ORSTRUCTING WATERWAY.-Where the town authorities construct a waterway through the lands of another, resulting on several occasions in the flooding of his premises, and the owner of the land places an obstruction in the waterway, but on his own land, by which a street is flooded and made insecure, he may be convicted of a violation of a town ordinance forbidding the placing of obstructions in any waterway so that water shall accumulate in the street, though there has been no condemnation of the land nor other acquisition of the right to the easement. Wilson, 107-865.

SPECIAL VERDICT.-The jury returned a special verdict which concluded as follows: "If on these facts the defendant is guilty in law, we find him guilty; if, on these facts, he is not guilty in law, we find him not guilty." The court entered judgment that "upon this verdict of the jury, the court finds the defendant not guilty, and orders that he be discharged": Held, that the special verdict did not amount to a verdict of guilty or not guilty, but that the jury simply found a certain state of facts to be true; and that the judgment of the court should have been that the facts found did or did not constitute the offense charged, and the verdict should have been rendered in accordance with the opinion of the court. Monger, 107-771.

The court, upon the facts found, should instruct the jury that their verdict should be guilty or not guilty. Monger, 107—771.

INDICTMENT OF TOWN OFFICERS.-Different persons can not be charged in the same indictment with different and distinct offenses. Hall, 97-474.

Where two distinct boards of city officers are charged with separate duties in relation to the government of the city, the officers of such boards can not be joined in one indictment charging a breach of public duty. Ib.

An indictment for failure to perform a public duty against an officer of a municipal corporation, must state with what particular duty he is charged and his failure to perform it. Ib.

An indictment against the mayor and aldermen of a city for a neglect of official duty in failing to remove obstructions from a street and to keep the same in repair, is fatally defective if it fails to point out the particular duty neglected, or to refer to the statute imposing it. Fishblate, 83–654.

Sec. 1024 (2935). Ordinances and penalties enforced; appeals.

As such court the mayor shall have authority to hear and determine all cases that may arise upon the ordinances of the city or town; to enforce penalties by issuing execution upon any adjudged violation thereof, and to execute the laws and rules that may be made and provided by the board of commissioners of said city or town, for the government and regulation of the said city or town, but in all cases any persón dissatisfied with the judgment of the mayor, may appeal to the superior court as in case of a judgment rendered by a justice of the peace.

Code, s. 3819; 1876-7, c. 243, s. 2.