Opinion
(Filed 2 February, 1940.)
1. Appeal and Error § 43 —
The petition to rehear on the ground that the Court was inadvertent to one of the grounds upon which plaintiff attacked the constitutionality of the statute involved in the case is allowed.
2. Same —
Where the Supreme Court is evenly divided in opinion, one Justice not sitting, as to whether there was error in the opinion of the Court in the construction of the statute attacked by plaintiff in the action, plaintiff's petition to rehear on this ground will be denied.
PETITION to rehear this case, reported in 216 N.C. 114.
Straus, Reich Boyer, M. James Spitzer, Manly, Hendren Womble, and W. P. Sandridge for plaintiff, petitioner.
Attorney-General McMullan and Assistant Attorneys-General Bruton and Gregory for defendant, respondent.
Bailey Lassiter, amicus curiae.
WINBORNE, J., concurring in part and dissenting in part.
STACY, C. J., and BARNHILL, J., join in the opinion of WINBORNE, J.
The petition deals with a matter of form and also with one of substance.
The petition alleges an inadvertence in the interpretation of petitioner's position in that it was stated that petitioner challenged the act only upon the ground that it violates the Commerce Clause of the Constitution of the United States, whereas petitioner likewise challenged the enactment as "Offending against the privileges and immunities and the equal protection of the law clauses of the Constitution of the United States." It is contended by respondents that those matters were dealt with in substance, though without specific mention, in the body of the former opinion. However, to this extent the petition is allowed.
The petition further alleges error in the construction of the statute. "The court being evenly divided on this phase of the petition, Seawell, J., not sitting, the petition is sustained only to the extent above indicated.
Petition dismissed in part and sustained in part.