State Ex Rel. Amick v. Lancaster

44 S.E.2d 733, 228 N.C. 157, 1947 N.C. LEXIS 568

• Court: Supreme Court of North Carolina
• Decided: November 5, 1947
• Status: Published

Opinion

Stacy, C. J.

It is not stated whether tbe action was dismissed on procedural or constitutional grounds. Hence, we do not reach tbe constitutional question, if tbe remedy be defective or inappropriate. “Tbe courts will not determine a constitutional question, even when properly presented, if there be also present some other ground upon which the case may be made to turn.” S. v. Lueders, 214 N. C., 558, 200 S. E., 22.

It would be strange indeed, if the same government which authorizes the establishment of a “liquor control store,” should also provide for its padlocking at the instance of a private citizen and thus render all who are connected with its maintenance “guilty of a nuisance.” Gr. S., 19-1. It was never intended that the procedure here 'invoked to abate a nuisance, Gr. S., 19-2, should be applied against an alcoholic control board set up under color of legislative authority, or against one who rents a building to such a board for the purpose of operating a liquor control store. The remedy selected seems inappropriate.

There was no error in dismissing the action.

Affirmed.