Jones v. Commissioners of Moore County

11 S.E. 514, 106 N.C. 436

• Court: Supreme Court of North Carolina
• Decided: February 5, 1890
• Status: Published

Opinion

Clark, J.:

Chapter 362, Acts 1889, prohibited the sale of intoxicating liquors within two miles of Sanford M. E. Church, in Moore County. The case on appeal states that at the date of the ratification of the act there was a “ building intended for and known as the Sanford M. E. Church, although it was not completed, and was in process of erection. Services have since been held in said church, and it is now recognized and known as the Sanford M. E. Church.”

The words “ Sanford M. E. Church ” are descriptive of the point from which the two-mile radius is to be measured, and the validity or continuance of the act was not made conditional upon the building being actually used as achurch. State v. Eaves, at this term, and State v. Patterson, 98 N. C., 666. There being a building at the date of the passage of the act knoiun. and recognized as the Sanford M. E. Church, the defendants were prohibited from issuing'license to sell liquor within two miles thereof. The Code, § 707, par. 25.

This case differs from State v. Midgett, 85 N. C., 538. There the act prohibited the sale of liquor within a certain distance of any church in Iiyde County. It was held that this did not apply to an academy in which preaching was occasionally had, but which -was not known and recognized as a church. Besides, the defendants having refused to issue plaintiff a license, as a matter of discretion, and it not being alleged and shown that such exercise of discretion was arbitrary, a mandamus could notissue. Muller v. Commissioners, 89 N. C., 171.

No error.