Burden v. Town of Ahoskie
150 S.E. 808
N.C.
1929
Check Treatment
Bkogdebt, J.

Are ordinances of a municipality valid, which prohibit the erection of a filling station within 300 feet of a school building, when there are now two other filling stations of similar kind constructed and in operation within a distance of 300 feet from said building ?

In Bizzell v. Goldsboro, 192 N. C., 348, 135 S. E., 50, it was written: “The law does not permit the enjoyment of one’s property to depend upon the arbitrary or despotic will of officials, however well-meaning, or to restrict the individual’s right of property or lawful business without a general or uniform rule applicable to all alike.”

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In substance and effect tbe ordinances under consideration in the case at bar are similar to the ordinances involved in the case of Clinton v. Oil Co., 193 N. C., 432, 137 S. E., 183. In that case the Court said: “The principle is well settled that ordinances must be uniform, fair, and impartial in their operation. . . . There can be no discrimination against those of the same class. The regulation must apply to all of a *95 class. An ordinance that grants rights — the enjoyment must be to all, upon the same terms and conditions. An ordinance cannot penalize one and for the same act, done under similar circumstances, impose no penalty. No ordinance is enforceable in matters of this kind, a lawful business, that does not make a general or uniform rule of equal rights to all and applicable to all alike — then there can be no special privilege or favoritism.” The Court further said: “The present ordinance does not regulate, but keeps alive the six gasoline places inside the fire limits where gasoline is sold, and prohibits defendant from carrying on a like legitimate business in the same limits. It discriminates against defendant and gives a. monopoly to those now carrying on the business in the district. It is no regulation; it is a prohibition.”

Applying these announced principles of law to the facts appearing in the record, it is manifest that the ordinances give life to the two filling stations now in operation within a distance of 300 feet, but pronounce the sentence of death upon any other filling station of like kind and character within the identical area. In the terse language of the Clinton case, supra, “this is not regulation, hut prohibition.”

It is strenuously argued that the effect of the third ordinance, passed after the action was instituted, is to remove the filling stations now in said área by 1 January, 1930, and that therefore on that date no filling station will be permitted within the area. Hence there would be no monopoly or discrimination. The fact that the ordinance was passed after the suit was instituted has no bearing upon the question at issue. Refining Co. v. McKernan, 179 N. C., 314, 102 S. E., 505. However, the plaintiff is entitled to have his case considered upon the record as it now appears. Certainly it is not unlawful for these filling stations now in the area to. operate until 1 January. The ordinance expressly recognizes such right. The owners of these operating filling stations are not parties to this action, and hence the right to operate said filling stations after 1 January, 1930, is not now before this Court.

The sole question for determination is whether the plaintiff is entitled to the relief requested upon the record as now presented. A consideration of the case, in such aspect, leads to the conclusion, under the circumstances, that the plaintiff was entitled to the relief sought for, and the judgment is reversed.

A discussion of the principles of law involved in the action may be found in 18 A. L. R., 93; 29 A. L. R., 450; 34 A. L. R., 507; 42 A. L. R., 978; 49 A. L. R., 767, and 55 A. L. R., 252.

Reversed.