Boone v. State, 8 Lea, 739. His conduct was highly reprehensible, and, if the statute be valid, the treatment accorded him was not unlawful. (See ¶¶ 5 and 6 of statement of facts above.)

As pertinent to the instant case, the declaration of policy by the Legislature has been made in no uncertain terms, as witness the following from chapter 328, Public Local Laws, 1923, applicable to Buncombe county:

"Sec. 8. That when any prisoner or convict committed to or being worked on said roads becomes unruly, so as to make it necessary to whip said prisoner or convict, the superintendent in charge of the camp shall call in two persons of good moral character to witness the whipping, and the superintendent shall keep a record of the offense for which said prisoner was whipped, the number of blows inflicted, and the names of the witnesses present, and report the same within ten days to the commissioners of the county of Buncombe: Provided, no guard or other person in charge, except the superintendent, shall whip a prisoner or convict; and any superintendent who shall whip a convict or prisoner in a cruel and unmerciful manner shall be guilty of a misdemeanor and fined or imprisoned, in the discretion of the court.

"Sec. 9. That a complete record shall be kept by the superintendent in charge of all whippings, and his reports, required by this act to be made to the commissioners of the county of Buncombe, shall be filed and maintained as public records and open to public inspection."

It is conceded that if the Legislature had the power to enact this statute, containing the above provisions, then the defendant ought to be acquitted, for, with respect to the whipping administered to Lee Cody, it is admitted that he did no more than the statute allows. McDonald v. State, 6 Ga. App. 339, 64 S. E. 1108. We are, therefore, face to face with the bare question as to whether "flogging," which is admin

istered in neither a cruel nor unmerciful manner, may be employed, with legislative sanction and after fair notice, as a necessary means of discipline in the management of unruly or refractory convicts. Westbrook v. State, 133 Ga. 578, 26 L.R.A. (N.S.) 591, 66 S. E. 788, 18 Ann. Cas. 295; 21 R. C. L. 1178. We can find nothing in the Constitution which prohibits the Legislature from pursuing such

Convicts

ging.

a policy, and this is power to the only question authorize flogpresented by the defendant's appeal. People ex rel. Fallon v. Wright, 7 App. Div. 185, 40 N. Y. Supp. 285.

It ought to be observed, however, that the permission to prescribe such discipline and to administer corporal punishment, as a dernier ressort, is not unlimited by the statute. His Honor was in error in assuming, as it appears from his judgment he did assume, that the whole matter, including the adoption of rules, as well as their enforcement, is to be turned over to "irresponsible guards." It is ex

pressly provided that no guard or other person in charge, except the superintendent, shall whip a prisoner or convict; and it is further provided that if any superintendent shall whip a convict or prisoner in a cruel and unmerciful manner, he shall be guilty of a misdemeanor and fined or imprisoned, in the discretion of the court.

Article 11, § 1, of the Constitution, provides: "The following punishments only shall be known to the laws of this state, viz.: Death, imprisonment with or without hard labor, fines, removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under this state."

There are those who question the wisdom, and even the right, of the state to take life, or to inflict the death penalty, as a punishment for crime, but, in the face of the above provision and the number of electrocutions that take place annually in this state, none can deny the power

of the Legislature to prescribe the death penalty. Indeed, capital punishment is a fact accomplished in North Carolina, and it is not likely to be abolished soon.

Constitutional

A constitutional grant carries with it the necessary power of execution, and in law-scope of the absence of spegrant of power. cific prohibition, the Legislature may employ such means of execution as, in its judgment, may seem needful, advantageous, or appropriate. M'Culloch v. Maryland, 4 Wheat. 407, 4 L. ed. 601; James Edward's Breweries v. Day, 265 U. S. 545, 68 L. ed. 1174, 44 Sup. Ct. Rep. 628.

By the same token, the power of the Legislature to prescribe imprisonment with hard labor as a punishment for crime must be conceded. This is also a fact accomplished under numerous laws of the state. But it is said that the word "only," appearing in the above quotation, prohibits any punishment not therein designated. Can it be that under this section the state may provide for the arrest and trial of criminals, sentence them, after conviction, to "imprisonment with hard labor," and then be forced to stop with the judgment pronounced because it has no power to execute its

Convicts-corporal punishment-constitutional limitation.

decrees? We cannot think so. Such holding by this court would be to declare unlawful every kind of prison discipline of a punitory nature whatsoever, and to announce a doctrine at once palsied and impotent, so far as the management of convicts is concerned. Even the most ardent opponents of corporal punishment as a means of prison discipline would not go so far, and yet such would be the logical result if the court should declare the present act unconstitutional. It would stay the hand of the Legislature in dealing with the subject of prison discipline in any manner looking to the adoption of punitory measures. "This constitutional provision has no direct application to

the discipline required in our jails and penitentiaries, for if so it would prevent solitary confinement, restriction of rations, and other reasonable punishments that are in customary use in prisons and penitentiaries." Clark, Ch. J., in State v. Nipper, 166 N. C. 272, 81 S. E. 164, Ann. Cas. 1916C, 126. The argument directed against the constitutionality of the act proves too much; it is like "a vaulting ambition which o'erleaps itself and falls on t'other side."

one

The very next sentence in the Constitution, following the above quoted, clearly sanctions the employment of disciplinary means as a matter separate and distinct from the punishment prescribed in the judgment of the court. It says:

"The foregoing provision for imprisonment with hard labor shall be construed to authorize the employment of such convict labor on public works or highways, or other labor for public benefit, and the farming out thereof, provided, that no convict whose labor may be farmed out shall be punished for any failure of duty as a laborer except by a responsible officer of the state," etc.

The Legislature has interpreted this provision to mean that prison discipline of a punitory nature may be authorized and committed to responsible officers for enforcement. In consequence of this construction, we find §§ 7723 and 7728 of the Consolidated Statutes, conferring such authority on officials of the state prison in certain designated cases. The statute now before us, applicable to Buncombe county, was enacted in 1923. Similar statutes have been passed for other counties.

There are several expressions in our reports to the effect that, in the opinion of some of the judges, corporal punishment by flogging cannot be upheld as a lawful practice in the absence of direct statutory authority. State v. Mincher, 172 N. C. 895, 90 S. E. 429; State v. Morris, 166 N. C. 441, 81 S. E. 462; State v. Nipper, supra. But even in these

cases a majority of the court was not willing to go so far. Hoke, J., writing the prevailing opinion in Nipper's Case, said:

"These statutes clearly contemplate that the control and discipline of convicts and particularly in reference to their punishment, corporal or other, shall be pursuant to rules formally made and published by the board of county commissioners, or their duly authorized agents, and I would not hesitate to hold that these rules should be humane, reasonably designed to effect the well-ordered governance of convicts, and that, in their prominent features, they they should be made known beforehand to each and every prisoner, that they may live and act with knowledge of the penalties attendant on disobedience. In applying such a standard, I am not prepared to say that never, under any circumstances, is corporal punishment permissible, or that carefully prepared rules, looking to such result, are, in all instances, unlawful; but the question is not presented on this appeal, for there is no proof or suggestion that there were any rules or regulations of any kind which authorized the punishment inflicted in the present case."

And in Mincher's Case, Brown, J., delivering the opinion of the court, said:

"The kind of punishment that may be inflicted in order to enforce obedience to discipline upon the

part of convicts engaged in working the public roads of the state is a difficult problem of serious importance addressed to the wisdom of the General Assembly. If the

convict is returned to jail because he will not work, he accomplishes his purpose. It is what he desires, and it destroys entirely the efficiency of a sentence to hard labor upon the roads. If the convict system of working the public roads is to be maintained, some kind of summary punishment must be inflicted in order to compel the unruly convict to work and in order to enforce discipline and obedience to authority. If this cannot be done, the system may as well be abolished."

The reasons assigned by the learned trial judge for holding the present statute unconstitutional are, we think, more properly addressed to the question of policy, which is a matter for the Legislature, than to the question of power, which alone the courts may consider. We hold that the statute, here challenged, is a valid exercise of the legislative power. Any objection to its provisions, on the ground of alleged impolicy, should be addressed to to the legislative branch of the government.

Let the cause be remanded, with direction that a verdict of not guilty be entered on the special findings of the jury. State v. Moore, 29 N. C. (7 Ired. L.) 228. Reversed.

An examination of authorities reveals no case other than the reported case (STATE V. REVIS, ante, 98), which presents the precise question under annotation. It is obvious that cases which contain general statements to the effect that the legislature has fuil power to pass statutes relative to the custody and control of convicts are not necessarily within the scope,

since there may be no question raised as to the constitutionality of a particular statute, and, unless this element is present, for the purpose of this annotation, the decision cannot be regarded as a precedent. See Green v. Jones (1924) 164 Ark. 118, 261 S. W. 43.

In two cases, at least, the courts have had occasion to construe statutes of the class contemplated in this title,

Frazer, J., delivered the opinion of the court:

Defendants appealed from a decree granting an injunction restraining the use as private garages of two adjacent buildings, belonging to them. It is conceded the neighborhood in which the structures were erected is residential, and the sole question presented by appellants for our consideration is whether the court below properly held the use of the buildings for the purpose intended, in a residential neighborhood, constituted a nuisance and violation of a restriction in the deed to defendants' property forbidding its use for any offensive business.

The garages are built on a lot having a 50-foot frontage on Warnock street, in the city of Philadelphia, and consist of two one-story buildings, each of considerable length, extending the full depth of the lot and facing each other, on a 14-foot driveway, which extends from Warnock street through the center to the rear of the lot, thus leaving an approximate depth of 171 feet for the building on each side. Each building is divided into ten separate compartments 8 feet in width with galvanized iron partitions to a height of 6 feet, and chicken wire extending from the top of the iron to the roof. The only openings in the buildings are doors facing the driveway for use as an entrance and exit for automobiles to and from the several stalls or compartments.

The twenty separate compartments were intended to be rented to individual owners of automobiles, to each of whom would be furnished a key to the particular division leased by him. No service of any kind was to be furnished by defendants, nor was it intended automobile supplies should be sold on the premises; each tenant to have sole charge and control of his individual garage with the right to use the driveway as a means of driving his car in and out of the building at any time, day or night.

The court below found, and these findings are amply supported by the testimony, that a 14-foot driveway was too narrow and contracted to permit an automobile to turn in or out of the compartments or stalls without backing and retreating a number of times in the process; that this action would be accompanied by noise caused by the racing of engines and shifting gears; that the use of the driveway from time to time and passing from the street across the sidewalk by twenty automobiles would be accompanied by danger to pedestrians, cause a congestion of traffic, and result in unusual noise; that owing to the fact that the buildings were not equipped on the inside for washing and caring for cars, making incidental repairs, changing tires, etc., the owners of cars would be obliged to do work of this character in the street adjoining the garages, which consequently would result in disturbing noises and annoyance to adjoining residents; that such work and the making of such repairs could not be provided against by defendants by provision in the lease, and, especially, as no caretaker or other person in charge of the garage was stipulated for; that the housing of twenty automobiles on the premises must necessarily result in disturbing noises, unpleasant fumes. from gasolene and oil, and consequent annoyance to residents in the neighborhood, and also depreciate the value of adjoining properties for residential purposes. Under the evidence, we are in accord with the conclusion reached by the court below, as stated in its opinion, that "after a most careful review of the evidence and an inspection of the premises, we have no doubt that the use of the defend- Nuisanceants' two buildings nest of garages as a nest of twenty separate private garages will be a nuisance in the neighborhood."

on city lot.

The question whether a garage of the character here described is a nuisance in a residential neighbor