*1 IN THE SUPREME COURT. v. Goldsboro. ground of absence or failure of which, if established consideration, is sufficient to defeat a defendant’s recovery by the plaintiff. right to disclaim liability consideration, on the note in for suit, want has not been destroyed or taken the statute. by agreement away by
The note,
in form
being
negotiable instrument,
imports prima
facie a consideration, and where the
failure or
want,
defense of
consideration
interposed to
in the instant suit,
defeat
as
recovery,
the
burden,
course, is on the maker to
the
establish
defense
the
by
greater weight
Brittain,
the evidence. Piner
Hunt
C., 401;
Eure,
ELEANOR LAURA S. Guardian, v. BOARD her ALDERMEN THE CITY OF OF OF GOLDSBORO al. et
(Filed 1926.) October, — — — Corporations Municipal Filling Law Ordinances 1. Constitutional Stations —Guardian—License—Discrimination. gasoline filling station, The erection maintenance con- formity upon statutory regulations by statute, those conferred authorities, nuisance, municipal is not a local hut involves the law- rights guaranteed ful Constitution the United States (Fourteenth Amendment), and of the State. O.] Bizzell
2. Same —Discrimination—Police Powers. *2 city professes regulate A ordinance which the erection and main- gasoline filling incorporated thereof, tenance of providing stations within the limits permits granted in effect that for such stations not be shall without the consent of the board of aldermen of violation property rights guaranteed by prescribing of the Constitution a by permits may uniform rule between the conduct of a business that which such be obtained. The distinction is not harmful unsafe and are, fully police power those that of within the lawful of exercise municipality, pointed distinguished by a Clarlcson, out and J. — Discretionary Notice—Hearings—Courts Abuse of Same — Powers — Appeal and Error. Discretion — lawful, Where the conduct business is and falls within the powers regulation by municipality of a or such affect the morals, health, etc., municipality, given of the notice must first be to one applying license, by license, or who is affected the revocation of his hearing him, according afforded decision made to the sound municipal appeal discretion of the authorities with to the courts arbitrarily as to whether the discretion vested in them had been or un- justly exercised not. Municipal Corporations Law —Ordinances—Mandamus. —Constitutional compel municipal corporation Mandamus will lie issue license business, for a lawful gasoline filling in this case erection and maintenance aof corporate unlawfully limits, station within the refused municipal an under invalid ordinance.
Stacy, X, dissenting. C. Appeal Sinclair, defendants J., from order at Chambers, WayNE. April,
This was an action by plaintiff against defendants alternate writ of mandamus be issued directing building of Golds- inspector boro to issue permit, or for the building inspector and the other de- fendants to show cause why said permit should not be issued. plaintiff, part, contends that she is the owner and in possession
of a lot of land situated city Goldsboro at the northwestern intersection West Center and Ash Streets, that during the month leased February, plaintiff said lot of land to the Sinclair Oil Company, company proposed erecting and operating a gaso- on said filling land, line station to that end the said company duly of Goldsboro for applied city construct and operate building said station. That the inspector city Goldsboro is law to pass upon the officer created applications for permits to con- in the city and that buildings Goldsboro, struct it is the duty to issue permits construction said inspector and operation of in the Goldsboro and to city require stations filling the applicant to laws of the State. conform to the IN THE SUPREME COURT.
That at a regular meeting tbe board of held in tbe aldermen, of Goldsboro on 1 July, tbe board of tbe three adopted aldermen ordinances, follows: “Be it of aldermen of ordained tbe board tbe city of Goldsboro: Tbat no gasoline storage sta- gasoline tion shall hereafter be located, conducted or in tbe operated Goldsboro without first obtaining consent from tbe board of aldermen at some regular meeting thereof. firm or vio- Any person, corporation, this lating ordinance shall, conviction, before tbe be fined mayor, $50 for each offense, of such every day violation shall constitute a offense'. separate
“Be it tbe board of ordained, by aldermen of tbe city Goldsboro: Tbat no gasoline filling station shall start storage operation thereof without first obtaining from tbe permission board to do so at a regular of aldermen thereof. meeting firm Any person, *3 this violating ordinance, or corporation, shall, upon conviction before $50 be fined for each offense, tbe of such mayor, every day violation a offense. separate shall constitute tbe board of
“Be it ordained aldermen of tbe city of Goldsboro: Tbat all heretofore issued for permits filling gasoline storage in which are not city stations tbe already constructed, be and tbe same revoked.” hereby of said ordinances is Tbat each unconstitutional and void, and par- in tbat do objectionable they prescribe ticularly uniform rule of exercise action for tbe of tbe discretion of tbe governing aldermen, but rights leave tbe contrary property subject on tbe to dis- arbitrary cretion of tbe board. tbe plaintiff with to tbe terms having agreed
Tbat lease tbe Oil above, referred to tbe Sinclair Company applied tbe board of of Goldsboro for a city permit aldermen of tbe construct said filling lot of tbe and tbe plaintiff, station on tbe her plaintiff, through attor- before tbe board aldermen appeared likewise ney requesting said said aldermen refused to issue tbat tbe tbe permit. permit; to tbe applied building inspector Tbat tbe plaintiff tbe city to construct said filling Goldsboro for station and tbe permit said tbe permit. refused to issue inspector of tbe herein referred to is plaintiff Tbat tbe lot situated at tbe of State No. and West Center Highway intersection which Street, business streets tbe city tbe principal Goldsboro; is one of east- is tbe street from tbe tbe Durham plaintiff Mills; across wardly Hosiery is tbe station of tbe filling street Texas across tbe diagonally Company; No. 10 a mercantile and across highway liv- southwardly establishment, on West Center Street and in shop; stable and blacksmith front of ery of tbe Southern, lot are tbe railroad tracks Atlantic Coast plaintiff’s C.] Line and Norfolk city Southern railroads. That the action of the Goldsboro and un- to issue said was an refusing permit reasonable exercise of discretion and is unlawful.
That the filling station lot erecting on said plaintiff proposed would comply with every respect laws of the State of building North Carolina and the ordinances and regulations of Golds- city and that therefore boro, has building no to re- inspector authority ject said application, and, plaintiff informed and believes, must issue said permit subject to him supervision by of the con- and material struction as directed in C. S., 2748.
The defendant admits that the Sinclair Oil Company applied of Goldsboro for to construct city operate gasoline sta- tion at the northwest intersection of East Center and Ash streets of Goldsboro. It city that, admits subject statutory regulations and valid ordinances of the Goldsboro, and some instances prior consent board it is the aldermen, of the duty said inspector of pass upon permits for the construction of buildings. denied that specifically special ordinances are objectionable unconstitutional void for any reason; and in this connection that said alleges ordinances constitute valid and constitu- tional exercise of on the part board of aldermen of the of Goldsboro. That the board of aldermen were induced to reach their decision a number of reasons, among them the That following: location for a station is proposed located within two blocks and a half of one of the schools of the primary city and the direct route of the and that this approach thereto, fact, together the fact Ash Street street of (said approach said school) also a part *4 of the Central of North would Highway Carolina, make the construc- tion of a station on said corner a filling continual menace to the school and going school; children from said that a further consideration was the fact that said station proposed filling would be located ad- a residential section of said joining and that there is no business the erection of a necessity requiring filling station on said corner, view of the fact that there are five other filling stations not far removed from the site. proposed the following below rendered judgment:
The court on to be heard before his coming Honor, “This cause Sinclair, J., heard being at and verified chambers, upon complaint and answer, filed of Goldsboro affidavits herein upon and upon for the and counsel plaintiff counsel argument defendants, after a full the Court consideration of and it said appearing plead- that the plaintiff entitled arguments affidavits and to the ings, relief It is thereupon considered, the complaint. demanded in ordered and IN THE SUPREME COURT.
Bizzell v. Goldsboro. adjudged that the of Goldsboro be building inspector be is ordered hereby plaintiff and directed to issue a for the construction of a station the lot described complaint, subject conformance with plaintiff laws of the State of North Carolina.” Dortch and Dickinson & Freeman
Hugh plaintiff. D. G. and Kenneth 0. Humphrey Boyall for defendants. J. The sole question presented: Are the ordinances ClakksoN, valid or void? We are void. opinion they Co., In C., 645, was said: “The Deposit police power . of a state is broad and It is elastic so that the comprehensive. gov ernmental control to meet economic adequate changing social, conditions. Under the United States Constitution the political has been left to the states—in fact it is in the police power inherent states. Each state has the regulate relative rights of all individuals and within corporations duties its persons, juris convenience, good health, welfare and public public diction —for morals and limit is that public safety. only no law shall be public to the Constitution of the enacted United States repugnant (14th Mills, the State. Durham v. Cotton Amendment) 615; N. C., Co., 196; Harris, Shields v. C., p. v. Power Shelby Greensboro, ante, 592; 6 R. C. p. Moore v. sec. 188-190.” L., Weaver, etc., In the Bureau of Penn. Inspection, v. Palmer Chief of Co., Bros. Court of U. S. Advance Supreme Opinions, p. (70 Law Palmer the facts were: Bros. Ed.), succinctly Co., Connecticut cor had a in which for large factory Connecticut, more than poration, half had manufactured that state century and had comfortables and in sold them there and the State of In elsewhere, Pennsylvania. was regulating manufacture, law steriliza Pennsylvania passed tion sale of the act the definition of bedding. “shoddy” was, has material which been into knit or fab “any spun yarn, woven into cut torn broken ric, subsequently up, up, up ground up.” a violation of fine or law, punishable by imprisonment was made with or to sell comfortables “shoddy” make comfortables made with disclosed eminent The evidence health scientists is “shoddy.” that in the absence of sterilization or there disinfection, would be little if the health of the users of comfortables filled any danger sickness There was no evidence or disease “shoddy.” was ever Butler, *5 Mr. “shoddy.” the use of Justice caused by writing the ma “The constitutional says: guaranties jority opinion, be made Wisconsin, convenience, Schlesinger mere v. yield decided 1 FALL TERM, 1926. N.O.] Goldsbobo. ante, . .... The March, 1926, U. . Ct. S., Sup. Rep., 301, subject business here while it is useful; and, involved is and legitimate to all reasonable the' use of prohibition the absolute regulation, shoddy the manufacture of comfortables is and arbitrary purely Tanner, violates the process due clause the 14th Amendment. Adams Nebraska, 244 U. 590, 596; S., S., 390; Jay U. Burns Meyer Holmes, Co. 504.” Baking Bryan, S., dissenting, U. Mr. Justice Wisconsin, said: “In this as case, I we Schlesinger v. think that the 14th Amendment far.” pressing Concurring too were Mr. Justice Br andeis and Mr. Justice Stone. Merrimon, In S. v. J., C., p. 481, said: “Such statutes Yopp,
are valid unless or is not purpose necessary regulate effect Whitlock, use of but it.” destroy 542; Stand Oil ard Co. City Kearney, Neb., p. C. S., 56, Art. chap. Municipal Corporations, for 11, provides “Regu- lation of Buildings” protection against fire, etc., municipalities. In this chapter Legislature has laid down rules in stringent regard to the regulation of within buildings and without the fire limits of the It municipalities. compulsory municipalities to establish fire It limits. for the provides inspector grant building per- mits. in certain provides localities the etc., material, A used. safety comprehensive regulation buildings is provided by law for municipalities. Art.
Under General Powers of 15, Municipal Corporations are enu subsec. S., 2787, merated. C. is6, follows: “To supervise, regu or in the interest of late, suppress, morals, public recreations, and entertainments, amusements and to define, abate prohibit, sup all detrimental to things press health, morals, comfort, con safety, e and welfare of th venience, and people, nuisances and causes thereof.” C. subsec. follows: S., “To regulate, control, and prohibit management and keeping any building bouses other storage gunpowder combustible, explosive, danger the city, regulate ous materials within and to the keeping and convey to authorize and same, regulate ing laying pipes of houses, tanks, location and construction reservoirs, pumping storage gas.” oil stations of aldermen Goldsboro passed The board an ordinance, concerns us here, one that prohibiting gasoline the material located, to be conducted or operated stations storage the city consent obtaining Goldsboro board aider- first meeting regular men at some thereof. the ordinance is contends plaintiff unconstitutional discretion with respect vests to an that it void, law- ordinary 23—192
354 THE IN SUPREME COURT.
Bizzell ful rule of business a uniform public officials, prescribing without action to all alike. making regulations applicable or uniform Tenant,
In "Mission case’’ C., p. 609, Hospital v.S. as firm shall corporation was follows: “That no or person, ordinance house or of build or erect within the limits of the any to, or add or character, generally kind or otherwise build any or change building, having applied house improve any -first obtained such The permission purpose.” to the aldermen “If is passed by municipal an ordinance corporation, said: Court of indi right its restricts the dominion which the face, which, upon not exercise without to question, according otherwise vidual might so as to make the absolute rule, enjoyment' or uniform but any general will authorities governing depend upon of his own void, it unconstitutional and fails to because it of the town action leaves rule of sub uniform furnish a aldermen who exercise it as may give will of so to the despotic to ject Newton v. particular persons, Belger, or privileges profits exclusive v. Northern vol. Dudley, Richmond 598; Reporter, City 143 Mass., 118 S., 356; Wo v. U. v. 312; Hopkins, May People, Yick 13, p. No. Rodeck, 49 217; City v. Md., Baltimore v. Anderson 1010; Rep., 27 Pac. Frazee, In 63 173; Mich., 396; re v. Tugman 40 Ka., Wellington, of Chicago, Braceville v. 30 Ill. Doherty, Ap., 405; Village Ill., Goshen, Orleans, 564; Bolls v. New City City v. 645; Barthel Lutz, 44 & Ill., 81; Horr Bemis on Mun. v. Lake View 221; Ill., Martin, 41 145.” The 13; Evansville Ordinances, Ind., sec. Police Schultheis, Ind., p. City St. Louis v. Plymouth City Tenant, latter case (the citing (Mo.), R. S. Russell, A., p. 20 L. supra). Bass, it was “Stables are se said: C., p. 781, per In v.S. regardless abated the manner to be law, common at nuisances Waddill, 31 N. 244.” C., p. Dargan are kept. which they case, de approved. was case, supra, the Tenant Bass firm or persons, corpora that no person effect was clared void be erected stables or stalls nearer to a neigh or cause shall build tion, (pp. the owner’s. The court further said is to than it bor’s residence to be to the health of improve is presumed “Its purpose : 781-782) to their It as minister comfort. town, well the inhabitants such as under it stables accomplish purpose, conspicuously fails near number obnoxiously dwellings with impunity kept of the owner of the stables. dwelling near the if are equally they annoy of the owner to his neighbor within Thus put the same himself. An or annoyance endure willing he will if at in its to all citizens application valid must to be dinance uniform 0.] v. Goldsbobo. equal to all alike. It not discriminate protection must afford one To he person class over others. valid must persons favor of Tenant, (Italics action. ours). furnish uniform must as well as operate equally upon persons, *7 their benefit equal who come or live within protection, the corpor- 1 ate limits. Mun. sec. Corp., 380; Dillon S. v. 106 Pendergrass, C.,N. 664; S. 107 N. 898.” Summerfield, C., construction station with dealing property rights, placed
cannot be a class with one for a applying license to operate or dance etc., which is a poolroom hall, privilege distinguished business in which legitimate from one is authorized to engage as think this right. a matter We distinction has been clearly recog this State. nized in Brunswick-Balke Co. v. 181 Mecklenburg, C.,N. Vanhook, 182 N. 386; C., I., Hoke,
In Brunswick-Balke Co. v. Mecklenburg, p. supra, 388, Tenant, to the “In question, 110 N. speaking says: 609, the C., in this State relied chiefly upon by case appellant, involved the validity of an ordinance of the Asheville, which prohibited and all any owners of within the building erecting anywhere limits any building house kind or any character or house or altering any adding already constructed without from the board of obtaining permission first aldermen. The court held as ah void, the ordinance unwarranted interference with the ordinary at the ownership, incidents will of the board of aldermen assigned valid reason had or for their action, as having relation to the exercise of no reasonable the police powers vested in ordering for the well the town.” the board Co.,
In Carolina Cadillac 176 N. C., Hanes is p. 351, it held: such use “Automobiles general 'they have become a part of of our in business as life well as for people daily pleasure. Public stations are essential supply and cannot well garages be dispensed The establishment such public with. conveniences even in residen cities and towns have been tial sections held not to be a nuisance Sheman 128 (Italics ours). Lexington, se. per Y., It has storage gasoline held that the been further suitable tanks set well the earth does not constitute a per down in nuisance se. Harper v. Co., 338; Co., Cleveland v. Mo., Standard Oil Gaslight N. J. Eq., 201.” McKernan, C., p. 314, In Co. v. Refining applicable to gaso to all the ordinance classes etc., applied alike, no line, discrimination, as in the case. discretionary power given present no has seen that this Court held that the is to be It business of dealing business in is legitimate municipalities oil and not a IN COURT. THE SUPREME V. GOLDSBORO.
BlZZELL se, in this business engage so all have nuisance per persons this business classify terms and Some courts upon conditions. equal held to which have been pawnbrokers, balls, dance poolrooms business. and not classified as legitimate mere privileges Edenton, is 530, In said: “The reasonableness Small v. is for in to find court, being jury ordinance called in dispute.” facts when Smith, ordinance C., p. prohibited a town Barger boundar saw mill or other mill within certain steam erection “ 'An oppressive at 324: ordinance must said, p. ries. It Corp. Dill. Mun. but must be reasonable and lawful.’
discriminating, Mun. 545. When an ordinance Corp., see. Abb. sec. (5 ed.), is that presumption 'within the grant municipality, its face. reasonable, it is unless its unreasonable character appears upon an ordinance to unreasonable But courts will declare be void because Ibid., facts shown which makes unreasonable.’ being a state of said cases there cited. further sec. 'art *8 It general. must fair and would unreasonable be impartial, an act one make under the same circumstances done unjust person another not so. which have this effect and done Ordinances penal or un- sustained. unwarranted discrimination Special cannot be cases is interference not to be allowed.’ just particular oppressive Ibid., 593.” Rice, 158 N. interest of health an ordinance
In the C., p. S. v. pigs (a se) nuisance forbidding keeping hogs per was sustained mile of Greensboro. The Legisla within limits one-fourth the mile sanitary for one police power purposes territory ture giving Hord, limits. A like ordinance in S. v. 122 N. C., p. the beyond 100 another’s forbidding keeping hog yards sustained a 1092, was in either of There is no discrimination these cases etc. dwelling, all citizens alike. forbids Nissen, N. it is said: discrim C., p. 363, In 173 “The Lawrence objection are those where open persons engaged inations which to different restrictions or are held subjected in the business are same under the same conditions. It is only privileges entitled to different can be to impair equal right said then that the discrimination of the laws. This is which can claim in the enforcement the all Court of United States in Supreme Hing laid Soon down 709. is those restrictions It one S., imposed upon U. Crowley, business, which in a are not engaged 'particular imposed class of persons conditions, same business and under like engaged others can claim the equal right enforcement impair Denson, 189 N. 173. C., p. laws.” S. N. 1926. TERM, O.] V. GOLDSBORO.
BlZZELL laid was Bern, principle Iii Turner v. New tbe C., p. 541, down: Under and under tbe S., 2787, provisions of C. provisions its of its charter needful ordinances authorizing pass health, quiet, government not inconsistent law to secure tbe it is within etc., safety general limits, welfare clause—within its — municipality valid discretionary powers exercise the police lumber within yards an ordinance the erection of pass forbidding this,discre and when residential long established, exclusively portion, interfere. has not courts will not been abused the tionary power case, limits to all. applicable Turner there were supra, prescribed ., McShane, , La. v. Mayor, S. ex rel. Nat. Oil Works La Sou. Rep., held Sunday S. 188 N. C., 643, was Weddington, person persons, as follows: “That shall be unlawful for valid, any Sunday sale on to sell or offer for merchants, tradesmen, company character, kind or drinks or merchandise of any goods, wares, Faith.” in the town of in case of sickness or absolute except necessity, from the under consideration. is a class of ordinance one This different should on the idea that there ordinances are Sunday predicated The health is a regulation necessary for man. be a rest day gives stores forbidding keeping open and welfare people. alike. To the same effect S. to all in the town rest and applies Davis, C., 809; Burbage, S. v. Medlin, 682; S. v. C., Co., 186 N. C., v. Lumber has the municipal corporation power Assembly “General un- the classification provided different occupations, classify and that the extent to which the usually reasonable and oppressive, governing is for the General or the Assembly be exercised will Davis, supra. of the municipality.” body 19 R. sec. 118: “It L., stated in C. p. part is well The principle *9 is by municipal corporation an passed is clear that ordinance might of dominion which the individual right the its face upon restricts to or according any general not question, without otherwise exercise own as make the absolute of his enjoyment but so to rule, uniform authorities of the governing town arbitrary will depend upon because it fails furnish void, and to or it is unconstitutional to the right property subject action and leaves uniform rule of officers, who exercise it in accord may of the municipal will despotic not be which it would within constitu some principle ance with sanction or even so as to exclusive give the State to tional power is, however, There no valid persons. to particular and profits privileges in a or vests in municipal board, which vests to an ordinance objection or licenses to in an grant permits engage to officer, authority a single IN THE SUPEEME COUET. Bizzell v. Goldsboko. which, be occupation altogether, or commit an well forbidden might act persons but hands of which under certain and when conditions method of character is a reasonable good when this harmless, clear, and always with the situation. The is not dealing distinction Tennant, consistent,” supra. the cases are S. v. perhaps wholly citing Shannonhouse, C., unmindful We are not of the case of S. v. au cases therein referred to. In these cases, pursuance and limits inherent the town fire thority (or power), specifically prescribed Johnson, to all alike. This cited with case, approval applicable which was written Mr. Justice who wrote p. Avery, case. In the ordi Kirkpatrick, C., p. 747, the Tenant is nances to all alike. There are cases where it applied exceptional or difficult or down a definite rule impracticable lay comprehensive relates is the discretion administration of a and police regulation necessary to and wel protect public morals, health, safety general in cases of this kind the must un fare, but exercise discretion not be reasonable or arbitrary.
Interesting' opinions, holding correct, defendant’s contention are: The State v. C. A. 129 Wash. Washington Fleming, Rep., p. Stannus, Herring Ark., p. 244, 275 S. W., p. question There is no faith of good mayor or board of aldermen of Goldsboro—men character. The ordinances are far- law does not of one’s reaching, enjoyment property depend upon arbitrary despotic will of however well- officials, or to restrict the individual’s meaning, or lawful busi- property ness uniform general applicable to alike.
In this is a State, dealing legitimate oils business so declared. valid ordinance come Any must under the time-honored rule of and not equal rights dependent will. despotic No is enforceable in matters ordinance of this kind, lawful business, general that does not make a or uniform rule of equal rights to all and all alike—then there can applicable to be no special privilege favor- itism. gives the board of .The aldermen at their pleasure grant person one a license and refuse another under the same circumstances. The cleavage is question less troublesome when the distinction observed between those things are not harm- ful and unsafe and those that are. The right of individuals to engage lawful and use any calling their lawful purposes guaranteed unreasonable them, restraint or ex- oppressive action the use of property and utmost liberty business growth advancement to the fundamental contrary law of the land.
In the case at bar are dealing we with property rights and a lawful unsafe, business—-not to the decisions according of this Court. There *10 1926. N. 0.] license a or kind and privilege is a between a case of tbis distinction operating snob tbe ordinance like, to a dance ball and operate poolroom, and good affect tbe peace class wbicb classes, may or equally upon for a pro- license or privilege order of a or a municipality county, in But even etc. police power, trade or under tbe fession, occupation lodged should be it is tbat power cases of tbis where essential kind, or revoke withhold board or officer to some governmental municipal be given license should for or revocation of license, applicant tbe tbe their sound made to according bad and decision bearing notice and reviewed But action in these cases discretion and judgment. is unjust. it has been palpably arbitrary when it is shown tbat municipal corpora- tbe State general law, applicable to be noted tbat tbe all alike and has tions, provided safety regulations applicable of tbe court below requires conformity. judgment acts of tbe not think tbat tbe reference tbe to tbe pleadings We do tbis con- commission of tbe of Goldsboro enters into planning to one tbe be noted tbat a vote of.two troversy, although may tbat tbe granted. commission recommended permit in other but tbe conflicting states, appli- Tbe decisions principle cable in tbe we is borne out tbe decisions of tbe present .case, think, Court, United States tbis and a tbe Supreme large majority State on Union, justice. other states of tbe founded reason and reason tbe of tbe court below is given, judgment For tbe Affirmed. Q. dissenting: Tbe ordinances in are assailed J., question Stacy, no whereby tbat standard or uniform they provide tbe ground in tbe board of to issue or aldermen,
tbe discretion vested to withhold for tbe erection and permits operation gasoline filling city Goldsboro, may according stations tbe be exercised storage known and regulation, established, applicable some fixed affirmed, upheld by court, alike. Tbe attack was tbe trial tbis Tenant, 110 of S. v. authority for tbe reason stated, principally C.,N. weight
It is established tbe clear tbat authority requirements down no to be followed and establishes lays general wbicb tbe erection of merely prohibits any building but rule, no uniform since permit, invalid, limits without it leaves corporate within tbe bind of a to tbe granting tbe according of tbe to be exercised municipal authorities, discretion will and no wbicb as an un subject review, regarded their own 4 R. C. L., power. warranted use of *11 OOUBT. IN THE SUPBEME v. Bizzell in decision But, to sustained the by the my mind, position There, case, Tenant’s law announced therein. nor the rule of general the owners against court was with an absolute dealing prohibition any property building erecting within the of Asheville from or city in adding where the limits or any kind, house or first to or house or altering any building already constructed, obtaining to do from permission so the board of aldermen. ordi nance was declared as an with the invalid unwarranted interference its ownership incidents. The board of aider- ordinary men was authorized to without valid for act, assigned reason had or its position, regarded having which was an unrestrained discretion, no reasonable relation the to the exercise of the vested in police powers board for ordering the well of the Here the ordinances much city. are in more their restricted scope operation. They single to a apply stations, class of buildings, wit, gasoline gasoline storage regulation which comes well within the police power of State. Stover v. Downey, Mass., 273. The be issued permits or withheld in the legal sound discretion after board a hear only ing had at regular meeting, some a distinction in fully recognized Yick Wo v. 118 U. Hopkins, 356, and other S., cases cited by appellant. Brunswick-Balke Co. v. 181 N. 386. Mecklenburg, C., a like criticism
Answering
leveled at
ordinance of the
Durham,
prohibited
which
the maintenance of a dance hall within the
limits
first
hire,
having
“without
obtained the consent of the
Adams, J.,
board of aldermen,”
speaking
the Court in S. v. Van
hook,
The decisions hold that the validity grant discretion depends largely upon nature of the business or to which thing respect it is exercised, to whether or not regulation its proper control require discretion to be vested one or more officials N. 0.1 v. Goldsbobo. thing article or the use of the business, control of the orderly 12 A. L. question. Note, R., nuisance station not be storage may A gasoline filling Nissen, se, (Lawrence like a hospital but it become
per such, Bass, hall a dance 781), (S. stable C., 359), livery Smith, 156 Vanhook, a sawmill (S. C., 831), (Barger Mecklenburg, Co. v. (Brunswick-Balke C., 323), poolroom the manner which *12 its location or reason of 386), by N. because of C., in and stored such Oil and used gasoline, invariably conducted. do, .that and they may, are so inflammable and highly explosive stations, are buildings to no matter how danger fire, carefully increase the their materials. And although or how noncombustible constructed of such character that buildings, they regula lawful and are necessary their comes well within settled tion of the of erection and use place “The State is power. to the exercise of the relating principles is communicated from a contagion hospital bound to wait until not the establishment of city, may prohibit established the heart because it is to So there, likely spread contagion. such hospital and inflammable and the dangerous explosives substances, of keeping materials within the limits of combustible buildings erection because of the may prohibited probability pos population dense Mills, Walker, J., in Durham v. Cotton injury.” sibility public 636. N. C., p. it is judicial the trend decision to the effect that
Furthermore, to statute, ordinance, prescribe specific necessary not always statutes call for the many well recognized rule of action. It is discretion because of the public officials, difficulty of some vesting a definite and comprehensive down laying impracticability as well protection at once an adequate which will' afford C., citizen. Yopp, as for the individual S. “referred very that the of classification is is fully recognized not be inter and its exercise discretion, may the legislative to
largely same is clearly arbitrary.” courts unless the fered with Burnett, C., Stokes, Des Moines v. Manhattan Oil the question City Speaking Weaver, Co., J., conditions changing “With the Iowa, 1096, says: density upon growth population, attendant necessarily manner of carrying in method and taking place changes the ceaseless the demand becomes industry, human lines of the multiplying we call the sovereignty element that reserve upon greater as the and regulation supervision such reasonable police power, citizen of the the individual observance to insure may impose, State IN THE COURT. SUPREME 36a duty to bis witb due use bis property rights privileges and exercise regard (cit- to tbe of others personal rights privileges ing restriction authorities). Such it involves duty, though even im- so-called natural first and most rights every individual, is the perative social obligation into what we call the entering compact. there can Without it be no such or civilized thing organized society government. Naturally, regulations reasonably required what for that imposed the constituted pur-pose by vary authorities deal; and, conditions have varying with which our lawmakers subject only limitations, acting Legis- constitutional its State, has the lature, right to select the subjects regulation pre- scribe rules for the exer- making justify such effective. To regulations cise of such it is thereof shall authority, necessary subject that the be inherently wrong; nor is the fact that may operate such regulation to restrict the individual the use his property, citizen own or even liberty, in his of itself sufficient render the or restriction regulation authorities). void (citing
“The to designate subject power police regulation rests alone; and if a given State statute not clearly to some repugnant con guaranty, stitutional courts interfere. Such if interference, tolerated at must be on the all, theory the subject *13 is not within the legislative jurisdiction; the if regulation or, the one within such it must subject jurisdiction, appear Court forms, mere and at the that, looking through substance of the matter, that statute, it can the enacted in the say professedly interest of the no welfare, Las substantial public general relation to that object, clear, infringement but is a unmistakable of rights secured by the fun damental law’ (citing authorities). The Legislature, acting within these sole as to all limits, judge the matters pertaining the public and of the wisdom, policy, expediency regulations which it pre Co., 124 (S. scribes Armour 12 Pkg. Iowa, 323, Corpus ; Juris, 932) and police power while the is familiarly regulations exercised in to pro health it morals, mote the extends public as well to the promotion of ‘public convenience and R. general prosperity.’ -Chicago, & O. R. Ill., 561.” Co. v. 200 U. People S., 225 646, In 34 A. Fleming, Wash., Pac., 647, L. R., 500, an in the vesting city held council of Spokane was that the public after grant deny, hearing, discretion to permits t stations, outside the fire limits of the as the city, public interes was an vesting not invalid as discretion in might require, the This council. in position fully supported, tendency at least, the Louis, in S., decisions Fischer v. St. U. New York 361, ex rel. N. O.]
Bizzell Goedsbobo. the dis DeCarr, 552, subject where S., Lieberman v. Van U. at cussed considerable length. section of under a
In the last the Court had consideration case cited shall milk “no York, provided the code New which sanitary York, New in the for sale delivered received, held, either kept, the subject a from board writing health, the permit this, was that put objection provision conditions thereof.” One or with- of health to grant the hands of the board absolute milk the equal protec- and therefore violated permits dealers, hold of the the Constitution tion clause of the Fourteenth Amendment to sustaining In of an elaborate the opinion States. the course United Court, Day, of the Mr. validity ordinance, speaking Justice said: Massachusetts, the an ordinance of S.,
“In 167 U. Davis that no shall make address in or person any public Boston providing a from in accordance with the public grounds, except the not in conflict with the Fourteenth Amendment to the was held mayor, In City, States. Wilson Eureka Constitution of United to obtain requiring persons permission an ordinance written S., 32, U. or in their president council, absence mayor streets of councillor, moving upon any before Federal sustained as violative Constitution. In was a number of instances were of the Court which given the opinion board, consent of an administrative prohibited except acts were sustained as exercises of the proper police power. were 177 U. ordinance was sustained Gundling Chicago, S., 183, per he cigarettes to license to deal when was mitting mayor persons the license was of character person applying good satisfied to be intrusted with their- sale. person suitable reputation Massachusetts, this S., recent case of Jacobson v. U. And delegated vaccination law which Court sustained compulsory necessity cities or towns the determination of the of 'health of boards vaccination. And the inhabitants to submit requiring compulsory *14 Louis, 361, 194 U. ordinance St. S., in Fischer v. St. or cow stable should thereafter be built dairy no providing Louis no such stable limits of the established within main time passage at the existence should.be first unless should have been ob premises, permission tained ordinance, was sustained by from the municipal assembly tained sustaining After power. right exercise of vest proper with the local conditions of the business acquainted in a board of men withhold this Court said: on, power grant permits, to be carried 364 IN THE COURT. SUPREME
“ It bas been beld in to tbe contrary some of tbe state courts to of American in tbe spirit institutions vest tbis dispensing individual, Trotter, bands single Ill., 430; 136 Matter Chicago Radecke, Frazee, Fisk, 63 9 Mich., 396; 94; R. Baltimore v. I., 6 217; Sioux and in others that Md., Kirby, Falls v. S. Dak., 62, such authority cannot be to tbe lot owners. St. delegated adjoining Russell, Lee, Ex 248; Cal., Louis But Mo., parte Sing tbe delegate appointed that discretion to board for that authority is sustained purpose weight tbe v. Ken great authority, Quincy nard, Davis, Mass., Mass., Commonwealth 510, this power, single Court tbe of such even to a delegation individual, was City, 32, sustained in Wilson v. Eureka 173 U. S., Gundling U. S., 183. Chicago, 177
“These cases leave in no tbe proposition doubt tbe conferring discretionary power upon administrative to grant boards or with- on a carry hold trade business which is permission tbe proper sub- within tbe ject regulation police power tbe state is not violative tbe secured Fourteenth Amendment.” rights I impelled For reasons am to dissent from stated, tbe tbe decision of I tbe think tbe ordinances question are valid. majority. S. BIZZELL
LAURA v. BOARD OF ALDERMEN OF CITY OF GOLDSBORO et al.
(Filed 1926.) October, Corporations Municipal and Towns —Ordinances—Constitutional —Cities Zoning Districts —Statutes. Law — provisions Zoning S., (Laws Statute, Under tbe of tbe 2776(s), 3 C. 2), prescribed regulations cb. sec. tbe shall be uniform throughout district, regula- eacl; each class kind of and tbe others, tions of one district differ from those of tbe and can no have application city refusing question rights governmental body tbe tbe of tbe gasoline filling station, to issue a for a in denial of applicant of an for such license under an invalid ordinance. X, Stacy, dissenting. C.
Appeal Sinclair, J., WayNE by defendants from Court, Superior Chambers, order at 1926. Affirmed. April, Dortch Hugh and Dickinson <&Freeman plaintiff. D. C. Humphrey and Kenneth C. Róyall for defendants.