
    STATE v. L. J. BLACKWELDER, and ROY DEAL.
    (Filed 5 December, 1923.)
    Sunday — Municipal Corporations — Cities and Towns — Ordinances—Restaurants — Hotels—Cx’iminal Law.
    A town ordinance that makes it a misdemeanor to keep places of business open on Sunday, or sell goods therefrom, including hotels, restaurants/etc., without exception as to the necessity of serving meals within reasonable hours, is invalid so far as it affects the service of the meals to those having no other place to get them, and a conviction as to those under such circumstances cannot be upheld.
    
      Appeal by tbe State from Long, J., at September Term, 1923, of RowaN.
    Criminal prosecution, tried upon a warrant charging the defendants with violating an ordinance of the town of Landis which made it unlawful for any person, firm or corporation to sell any “goods, wares or merchandise,, or other things of value, on the Lord’s day, commonly called Sunday.”
    From a judgment of dismissal, rendered on a special verdict, the State appealed.
    
      Attorney-General Manning and Assistant Attorney-General Nash for the State.
    
    
      No counsel appearing for defendants. .
    
   Staot, J.

This prosecution was commenced in Rowan County Court and tried de novo on appeal to the Superior Court of Rowan County. From the judgment of the latter court the case comes to us for review. The controlling facts, as established by the special verdict, are as follows :

1. On .Sunday, 27 May, 1923, the defendants, who own and operate a restaurant in the town of Landis, Rowan County, N. C., sold and furnished to one Paul Beaver, for a stipulated price, a midday meal consisting of a veal steak, certain vegetables and one coca-cola, contrary to the provisions of a certain ordinance of the town of Landis, the material parts of which are as follows:

“It shall be unlawful for any person, firm, or corporation to be engaged in selling goods, wares, or merchandise, or other things of value, on the Lord’s Day, commonly called Sunday; and it shall further be unlawful for any person, firm or corporation to open any place of business or keep any place of business open for the'purpose of transacting business or selling any goods, wares, or merchandise therefrom on the Lord’s Day, commonly called Sunday. This shall apply to all places of business within the corporate limits of the town of Landis, and shall include stores, restaurants, and other places of business from which goods, wares or merchandise are sold.
“It shall also further be unlawful for any person, firm, or corporation t'o enter his store, restaurant, or place of business on Sunday and bring therefrom any goods, wares or merchandise for the purpose of sale to another. This shall not apply to cases of absolute emergency or charity. Where it becomes necessary in eases of death or sickness, the mayor of the town of Landis may grant permission for any store or other place of business to sell therefrom such articles of necessity.
“Any person, firm, or corporation violating this act or ordinance, or any part thereof, shall be guilty of a misdemeanor, and upon conviction to be fined $25 for tbe first offense and for a second offense, or any other offenses after tbe first, shall be fined $50.”

2. Tbe meal in question was sold by tbe defendants and purchased by tbe said Paul Beaver in good faith and for tbe sustenance of tbe human body. (S. v. Shoaf, 179 N. C., p. 747.)

3. Tbe said Paul Beaver was, at that time, without a home or residence where be could otherwise obtain food, and tbe restaurant conducted by tbe defendants was, at that time, tbe only public place where meals could be obtained on tbe Sabbath Day in tbe town of Landis.

4. Tbe defendants did not keep their restaurant open during tbe entire day of 27 May, 1923, and they have not regularly kept tbe same open on other Sabbath days, except at stated hours reasonably adapted to tbe sale and service of regular meals.

Upon these, tbe facts chiefly pertinent, bis Honor held “that tbe ordinance of tbe town of Landis appearing in tbe record, in so far as it affects tbe defendants upon tbe facts set out in tbe special verdict, is unreasonable, oppressive, in derogation of common right, and should be declared unlawful, invalid and an unreasonable exercise of tbe police power of said town, and tbe court being of tbe opinion, upon the- special verdict, that tbe defendants are not guilty, it is, therefore, considered and adjudged that tbe defendants are not guilty and that this action be and tbe same is hereby dismissed.”

We think tbe judgment of bis Honor below must be upheld. Barger v. Smith, 156 N. C., 323; S. v. Burbage, 172 N. C., 876.

It will be observed that tbe ordinance in question makes no exception as to “works of necessity,” among which is generally listed, “keeping open a hotel, restaurant or dining-room.” 25 R. C. L., 1422. See McAfee v. Com., 173 Ky., 83, as reported in L. R. A., 1917 C, 377, where tbe authorities on tbe subject have been collected and discussed in a full and satisfactory note.

All of our previous decisions, from S. v. Williams, 26 N. C., 400, down to S. v. Lumber Co., ante, 122, are distinguishable from tbe case at bar. We have found none in conflict with our present position.

It may be well to direct attention to tbe fact that tbe ordinance in question is held to be invalid only “in so far as it affects tbe defendants upon tbe facts set out in tbe special verdict.” In S. v. Pulliam, 184 N. C., 681, a somewhat similar ordinance was upheld, but there tbe prohibition was against keeping open any “store, shop or other place of business” on Sunday, ánd it was held that tbe defendant might not circumvent tbe ordinance under tbe guise of running a restaurant in connection with bis store, shop, or other place of business, or even in tbe same room where such was carried on.

Affirmed.  