State v. . Bass, 87 S.E. 972

State v. . Bass

87 S.E. 972 | N.C. | 1916

CLARK, C. J., dissenting. "No person or persons, firm or corporation shall build or cause to be erected any privy, stables, or stalls nearer to a neighbor's residence than it is to the owner's; and no privy, shall be constructed nearer than 25 feet of any public street, under penalty of $25 for each offense. (781) Each day's continuance of such privy, stables, or stalls after notice by the sanitary officer shall constitute a separate offense."

The defendant was convicted, and from the judgment pronounced appealed. *859 The defendant was convicted of erecting his stables nearer the house of his neighbor than to his own, the evidence being that they were located 14 feet 7 inches from Mrs. Collins' residence and three times that distance from his own residence.

The contention that the ordinance does not apply to a stable in course of construction cannot be maintained. In Privett v. Whitaker, 73 N.C. 554, it was held that a municipal ordinance forbidding the erection of a wooden building within certain limits applied to a building the erection of which had been commenced at the time the ordinance was adopted. Stables are notper se nuisances at common law, to be abated regardless of the manner in which they are kept. Dargan v. Waddill, 31 N.C. 244. Nevertheless the possibility that they may become nuisances, together with their objectionable character when located very near to dwellings, place them in the category of buildings the location of which may be designated and controlled by reasonable ordinances enacted by the municipality in which they are situated. St. Louis v. Russell, 20 L.R.A., 721; McQuillin on Mun. Ord., 450; 29 Cyc., 1171; Dillon, 692.

It is contended that this ordinance is invalid because it is unreasonable and not uniform, in that it does not afford protection to all citizens alike and is not reasonably appropriate for the accomplishment of any legitimate object falling within the police power of the State. 6 Ruling Case Law, sec. 226. The objection is well taken, as the ordinance manifestly fails to accomplish any purpose properly falling within the scope of the police power. R. R. v. Drainage Comrs., 200 U.S. 561; 6 Ruling Case Law, sec. 226, and notes.

Its purpose is presumed to be to improve the health of the inhabitants of the town, as well as to minister to their comfort. It fails conspicuously to accomplish such purpose, as under it stables may be kept with impunity obnoxiously near any number of dwellings if they are equally as near the dwelling of the owner of the stables. Thus it is put within the power of the owner to annoy his neighbor at will if he is willing to endure the same annoyance himself.

An ordinance to be valid must be uniform in its application to all citizens and afford equal protection to all alike. It must not discriminate in favor of one person or class of persons over others. To be valid it must furnish a uniform rule of action. S. v. Tenant, 110 N.C. 612. It must operate equally upon all persons, as well as for (782) their equal benefit and protection, who come or live within the *860 corporate limits. 1 Dillon Mun. Corp., sec. 380; S. v. Pendergrass,106 N.C. 664; S. v. Summerfield, 107 N.C. 898.

The learned Attorney-General, with his usual candor, admits that the ordinance is void as a municipal regulation, and in his brief states the legal objections to it so strongly that we quote in extenso:

"The consideration that raises a grave doubt about the constitutionality of the ordinance is that the commissioners of the town, who are by statute clothed with the power and duty of exercising their judgment in the enactment of measures for the protection of the public health, have not exercised any judgment at all, and have not declared what, in their opinion, is the shortest distance from a residence a stable should be permitted, but it is left to each citizen to determine that question for himself, with the obligation that when he has determined it he must afford to his neighbor the same protection he does himself. In this view of the case there would seem to be two fatal objections to the validity of the ordinance:

"1. That it is a clear delegation of legislative power to an individual. This Court has held, in S. v. Tenant, 110 N.C. 609, that a board of aldermen itself cannot be vested with any discretion in the enforcement of an ordinance, upon the ground that there would be no general or uniform rule of action; and it would seem to follow that it cannot be left to the judgment, taste, or whim of an individual to say how far a stable must be from a residence.

"In St. Louis v. Russell, 20 L.R.A., 721, it is held that an ordinance delegating to the owners of one-half the ground in any block the power to determine whether a livery stable may be erected thereon or not is invalid, as an unconstitutional delegation of legislative power. The authorities in support of the proposition are reviewed on pages 727 and 728, S. v. Tenant,supra, being among the cases cited."

Again he says: "The second objection to the validity of the ordinance is that it necessarily results in a standard devoid of any element of equality or uniformity, both of which elements are essential to a valid ordinance. The practical result of the enforcement of the ordinance would be a standard as variable as the sizes of the different lots in a town and as the judgment and taste of the individual citizens. Under the ordinance there could be a hundred stables within 50 feet of a residence and none of them be obnoxious to the ordinance, and at the same time there could be a hundred other stables more than a hundred feet from any residence and all of them a violation of the ordinance. The owner of a large lot could build his stable 300 feet from his residence, but if it happened to be within 250 feet of a residence of another he would be subject to indictment; but if he moved up his stable so that *861 it would be 100 feet from his own residence and 110 feet from a (783) dozen other residences, he would `clear the law.'

"The proposition that a stable 250 feet from a single residence is a menace to the public health, while the same stable moved to a point within 110 feet of a dozen residences would not be a menace to the public health, has in it elements of unreasonableness worthy of the serious consideration of this Court."

What is so well said by Clark, J., in S. v. Hord, 122 N.C. 1094 (sustaining an ordinance prohibiting a resident from keeping a hogpen within 100 yards of his neighbor's residence) is peculiarly applicable to this case: "The object of the ordinance is not to prevent a man from injuring himself by keeping his hogpen too near his own house, for that is a matter he can remedy at will, but to protect the public against a nuisance which they have no power to prevent except through the authority of a town ordinance acting on the offender." The ordinance now under consideration is the converse of that. Under this ordinance one may injure his neighbor, if from necessity or caprice he is willing to endure the same injury himself.

That the reasonableness or validity of a town ordinance is a matter of law for the court and not the jury to decide is well settled. Small v.Edenton, 146 N.C. 527; McQuillin, secs. 726-729.

The motion to dismiss is allowed.

Reversed.