concurring: In my opinion this is not a case of circumstantial evidence in which the only question is whether the circumstances proven will support the inference that defendant is the person who parked his automobile in the parking space here involved and left it standing there for more than one hour in violation of the ordinance. The evidence is direct and positive. An automobile was parked in a one-hour parking space on Fayetteville Street. The vehicle belonged to defendant, was registered in his name, and bore his license plates. The meter registered overtime parking. This testimony presents the simple question: Is proof that defendant is the owner of an automobile which was parked overtime, and nothing more, sufficient to overcome the presumption of innocence and support his conviction on a charge of overtime parking? If so, it was sufficient to be submitted to the jury. If not, the demurrer to the evidence should have been sustained.
The majority opinion fully supports the conclusion that the evidence does not have sufficient probative force to require its submission to a jury and cites analogous cases in which we have come to the same conclusion. I merely wish to discuss briefly the question of expediency and necessity raised by the dissent.
It is suggested in the first place that the facts here offered in evidence created in the mind of the police officer who tagged defendant’s automobile the conviction that defendant was the person who parked the vehicle; that it “carried the case to the jury” in his mind. As a matter of fact, the officer did not know or care whose automobile it was. It was parked overtime and he tagged it and so reported to the city traffic department. That department ascertained the name of the owner and issued the citation.
Let us concede, however, that the facts discovered by the officer “carried the case to the jury” in his mind. Even so, we cannot afford to set our judicial sights by the sidewalk opinion of a policeman. Such officers generally are good citizens and faithful public servants. But their casual opinions, formed as they go about their business of enforcing the law, are no proper guide for us.
The minority opinion makes out a good case for those who conceive that it is the province of the courts, by judicial construction, to engraft *27oil inadequate legislation provisions necessary to make it effective; to point tbe way to social reform; and to provide tbe rules for tbe elimination of tbe evils created by our complex civilization. For ns to bold tbat tbe mere proof tbat defendant owned tbe automobile tbat was parked overtime is insufficient will, in effect, strike down tbe ordinance, or at least render it unenforceable and “leave unregulated motor traffic not only in Raleigb but in practically every city and town in North Carolina.” So it is argued. Tbe long and short of it is tbat it is expedient for us to act noAv and save tbe impending situation.
Emergency and necessity are tbe magic words tbat lure courts into tbe legislative field. But neither emergency nor necessity creates power or confers jurisdiction.
When tbe fiction of a presumption in tbe form of a rule of evidence is, as here, required to relate tbe facts proven to, and make them prima facie evidence of, tbe ultimate facts sought to be established, tbe rule of evidence must be created by legislative Act and not by judicial decree. So far as I have been able to ascertain, this Court has always recognized this to be tbe law and has never in tbe past undertaken to create such a rule.
Furthermore, there is nothing in tbe record to indicate tbat any defendant at any time in any court of this State has been convicted on a charge of parking overtime in a trial in which tbe presumption or prima facie rule here involved was applied against him. Certainly it is not a matter of common knowledge tbat tbe rule is generally applied in trial courts to such an extent tbat we may take judicial notice thereof.
Tbe prerogative of this Court is to interpret and apply tbe law — never to make it. This we should ever keep in mind, for our sense of self-restraint is tbe only check upon our exercise of power. We may rejoice in tbe accomplishments of our Court only so long as we maintain, in letter and spirit, tbe division of tbe great functions of government written into our Constitution which is tbe best security for a government of laws and tbe only safeguard against a return to a government of men.
It is true courts of other states have, at times, yielded to tbe temptation to usurp tbe functions of tbe legislative branch of government by engraft-ing on tbe law rules of evidence and other provisions deemed necessary to meet tbe problems of tbe day. Unfortunately, tbat is tbe trend of modern decision in a number of our courts. One, at least, in recent years, has played ducks and drakes with precedents of long standing and has virtually rewritten several sections of our Federal Constitution so as to accord with its concept of tbe need for social reform created by tbe complexity of modern civilization. It has sought, assiduously and with some success, to engraft its own philosophy of government upon tbe body of tbe law. As a result, tbe divergent views of its members as expressed in tbe numerous concurring and dissenting opinions filed, have created eon-*28fusion and uncertainty in the law to such an extent as to cause the court to lose much of the respect and confidence the people had, and should always have, for that high tribunal. We must not be led astray by the examples set by these courts whose anxiety to meet the problems of the day have led them across the bounds which delimit judicial action.
Surely we could now prescribe the rule of evidence which would create the required presumption, give it retroactive effect, 'and affirm the conviction of defendant. No doubt such action would command the approval, perhaps the applause, of many citizens who are not close students of the division of powers incorporated in our system of government. But for us to do so would create a precedent which would rise up to plague us in the future. One departure from the realm of the judicial would lead to another. Therefore, neither the emergent situation nor the example set by some other courts should tempt us to undertake to discharge the duties assigned to the lawmaking branch of our government.
We need fear no calamitous results from this decision. Parking regulations were enforced long before the advent of meters. They are now enforced in acceptable manner in areas where no meters are used. Meters are mere silent watchmen. Police officers are still required to check them and tag the cars. The “mark and watch method” which has been effective in the past is still available.
In this connection I call attention to the fact a bill to create the exact presumption or rule of evidence here proposed was submitted to and rejected by the last General Assembly. Senate Bill 257. See House Journal, Session 1951, p. 553. The municipalities of the State appealed first to the proper forum for legislation establishing a rule of evidence which would materially facilitate the enforcement of parking ordinances. Having failed there, they now appeal to the courts. If confusion does follow our disposition of the appeal, responsibility will not lie at our door.
However urgent the situation may be, it must await action by the only agency of government authorized to make the law. In the meantime, it is our duty to reverse the verdict and judgment entered in the court below.