# Gardner v. City of Reidsville

> Supreme Court of North Carolina · March 8, 1967 · 269 N.C. 581

URL: https://www.frixlaw.com/law-library/cases/9568441

## Case

- **Full name:** THOMAS L. GARDNER, a Citizen and Resident Taxpayer of the City of Reidsville, on Behalf of Himself and of Other Citizens, Residents and Taxpayers of Reidsville, Similarly Appected and Situated, v. CITY OF REIDSVILLE, a Municipal Corporation, CLAUDE S. BURTON, CLIFFORD MOORE, and JAMES EVERETTE, Members of the Purported City of Reidsvilie ABC Board
- **Court:** Supreme Court of North Carolina
- **Decided:** March 8, 1967
- **Citations:** 269 N.C. 581; 153 S.E.2d 139; 1967 N.C. LEXIS 1113
- **Precedential status:** Published
- **Opinion:** Concurrence by Parker
- **Judges:** Branch, Parker
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9568441

## Opinion text

PARKER, C.J.,
concurring in the majority opinion.
“. . . (T)he liquor traffic is admittedly dangerous to public health, safety, and morals, and is therefore essentially within, and its regulation or prohibition is fully justified under, the police power. . . .” 30 Am. Jur., Intoxicating Liquors, § 23.
“Publicly owned liquor establishments are governmental agencies, established in the exercise of the police power, to accomplish governmental purposes, and to perform a governmental function.” 30 Am. Jur., Intoxicating Liquors, § 204.
“In some earlier cases, it was argued in support of the contention of the unconstitutionality of laws providing for the sale of liquor through state liquor stores or dispensaries, and prohibiting sales by any other persons, that traffic in intoxicating liquors was a private pursuit in which the government, whose undertaking must be confined to those of a public character, could not engage in. Such reasoning, however, never attained general acceptance; the prevailing view is that these laws do not violate the inalienable rights of citizens, are not class legislation, and do not infringe upon the due process clause or any other provision of the Federal Constitution, but are a valid exercise of the police power in controlling the liquor traffic; and are police enactments, and thus within the meaning of the Wilson Act.” 30 Am. Jur., Intoxicating Liquors, § 205. See also Ziffrin v. Reeves, 308 U.S. 132 , 84 L. Ed. 128 .
*596 In Boyd v. Allen, 246 N.C. 150 , 97 S.E. 2d 864 , the Court said, ‘‘The liquor business, ‘stands by universal consent, in a class peculiarly within the police power.’ ”
In my opinion, there is nothing in the law or statutes of this State permitting the sale of intoxicating liquor in State ABC stores to support the theory that the State of North Carolina or any of its counties or municipalities operating ABC stores is engaged in a trade or business within the purview of the word “trade” as used in Article II, section 29 of the North Carolina Constitution. The rationale behind the statutes of this State permitting, controlling, and regulating the sale of intoxicating liquors by publicly owned ABC stores is that such ABC stores are governmental agencies, established in the exercise of the police power of the sovereign State of North Carolina to accomplish governmental purposes and to perform a governmental function under the inherent police power of the State. The systematic purchase and resale of a commodity for profit by private individuals, or an association of private individuals, or a private corporation, is primarily to make a private gain or profit. In my opinion, that is trade in the connotation of the word “trade” as used in Article II, section 29 of the State Constitution. Any gain or profit made by any ABC store of this State operating under our State statutes is not a private gain or profit, but is a gain or profit for the public and not any individual. The North Carolina Department of Motor Vehicles through its Commissioner is charged with the responsibility of administering the laws regulating the operation of motor vehicles in the State of North Carolina. G.S. 20-39. Receipts from the sale of registration plates for motor vehicles by the Department of Motor Vehicles during the fiscal year ended 30 June 1966 exceeded the cost of these registration plates by more than forty-two and one-half million dollars, according to figures furnished from the accounting records of the Department of Motor Vehicles by the Director of the Division of Accounts. Can it be successfully maintained that by reason of this, the Department of Motor Vehicles is engaged in trade or business? In my opinion, the answer is, No. In my opinion, the provision of Article II, section 29 of the North Carolina Constitution inhibiting the General Assembly to enact any private or special legislation or any local, private, or special act or resolution relating to trade connotes a trade engaged in by a person, or group of persons, or a private corporation for private gain or profit, and the local act challenged by plaintiff in the instant case is not in conflict with this provision of our State Constitution.
I concur in the majority opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9568441. Public record. Not legal advice.