State v. Vestal
189 S.E.2d 152
N.C.
1972
Check Treatment
LAKE, Justice.

The defendant’s motion to quash raises the question of the sufficiency of the summons, or warrant, to charge the commission of a criminal offense. State v. Brewer, 258 N.C. 533, 129 S.E. 2d 262, 1 A.L.R. 3rd 1323, app. dism., 375 U.S. 9; State v. Walker, 249 N.C. 35, 105 S.E. 2d 101; State v. Glidden Co., 228 N.C. 664, 46 S.E. 2d 860. It is essential to jurisdiction that a criminal offense be charged in the warrant or indictment upon which the State brings the defendant to trial. State v. Guffey, 265 N.C. 331, 144 S.E. 2d 14. If the only charge therein is that the defendant violated a statute or an ordinance which is unconstitutional, the motion to quash must be allowed.

In passing upon such motion, the court treats the allegations of fact in the warrant, or indictment, as true and considers only the record proper and the provisions of the statute or ordinance. State v. Lee, 277 N.C. 242, 176 S.E. 2d 772; State v. McBane, 276 N.C. 60, 170 S.E. 2d 913; State v. Cooke, 248 N.C. 485, 103 S.E. 2d 846; State v. Andrews, 246 N.C. 561, 99 S.E. 2d 745. There was, therefore, no error in the refusal of the superior court to permit witnesses for the State to testify as to the manner in which the defendant actually operates his business. The State’s Assignment of Error No. 1 is, therefore, overruled.

The summons, or warrant, in the present case charges the defendant with violation of the requirement of the ordinance that “a solid fence or wall not less than 6 feet in height shall be erected not less than 50 feet from the edge of any public road adjoining the yards.” (Emphasis added.) As Justice Parker, later Chief Justice, speaking for this Court in State v. Brewer, supra, said, “The books are filled with statements by the Courts of the rule that a crime must be defined in a penal statute with appropriate certainty and definiteness.” In Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322, it is said, “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process.” To the same effect, see: State v. Furio, 267 N.C. 353, 148 S.E. 2d 275; State v. Lowry and State v. Mallory, 263 N.C. 536, 139 S.E. 2d 870; State v. Hales, 256 N.C. 27, 122 S.E. 2d 768; State v. Morrison, 210 N.C. 117, 185 S.E. 674.

The ordinance contains no definition of the term “the edge of any public road.” The term “public road” includes, of course, both paved and unpaved roads. In oral argument, counsel for the State suggested that the edge of a road is the edge of the traveled portion thereof. In the case of an unpaved road, however, this will vary from time to time. Other possible interpretations include: the outer edge of the shoulder, the outer edge of the side ditch, the edge of the pavement in the case of a paved road, the outer boundary of the right of way. Between these possible constructions, the court is not permitted to make a selection. State v. Morrison, supra; State v. Partlow, 91 N.C. 550, 553. The operator of an automobile wrecking yard may not be required to guess at the required location of his fence at the risk of a fine or imprisonment if he guesses wrong as to the location which the court says was the one intended by the legislative body. The provision of the ordinance here in question must be deemed unconstitutionally vague and for this reason, if for no other, the motion to quash was properly allowed.

The ordinance does not require, and would not necessarily be satisfied by, the erection of a fence upon the boundary of the lot whereon the automobile wrecking yard is located. It may well be that the right of way for the road may not extend as far as 50 feet from “the edge of the road,” assuming that to be capable of location. In that situation, the ordinance would require the erection of a solid fence at a point which would render virtually unusable a portion of the land of the operator of the yard.

The State, on behalf of the county, contends that the purpose of the requirement is not aesthetics but highway safety. It says that the lot of this defendant lies in the corner of an intersection of two public roads and contends that, without such a fence, junked automobiles, awaiting dismantling or other disposition by the defendant, will be stored so near the roads as to block the view of the drivers, thus increasing the danger of collisions in the intersection. While a reasonable restriction upon the use which a landowner may make of his property may be imposed under the police power in the interest of public safety, there must be a reasonable basis for supposing that the restriction imposed will promote such safety, otherwise the restriction is a deprivation of property without due process of law. See: State v. Warren, 252 N.C. 690, 694, 114 S.E. 2d 660; Winston-Salem v. R. R., 248 N.C. 637, 642, 105 S.E. 2d 37; State v. Ballance, 229 N.C. 764, 769, 51 S.E. 2d 731; Skinner v. Thomas, 171 N.C. 98, 87 S.E. 976.

It is obvious that a solid fence, 6 feet high, upon, or approximately upon, the boundaries between the wrecking yard and the rights of way of two intersecting roads, would be more of an obstruction to the view of drivers than would junked automobiles, parked near but within the boundaries of the yard. Furthermore, the requirement of the ordinance is not limited to yards lying at an intersection of roads. It applies where a single road runs along one side of the automobile wrecking yard. Clearly, automobiles stored within the boundaries of such a yard will not obstruct the view of drivers of vehicles' on the road. It is utterly unrealistic to suppose that the sights ob servable in the yard will distract drivers from attention to traffic on the highway. Consequently, we see no reasonable basis for supposing that the construction of such a fence along the boundary of the automobile wrecking yard will promote safety on the adjacent roads.

If the proper construction of the ordinance is that the fence must be built substantially within the boundaries of the lot in which the automobile wrecking business is located, then the ordinance encounters the further difficulty that it is a taking of the lot owner’s property for a public use without compensation, which both the Federal and State Constitutions forbid. Del., LAW. R. R. v. Morristown, 276 U.S. 182, 48 S.Ct. 276, 72 L.Ed. 523; Penna. Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322; DeBruhl v. Highway Commission, 247 N.C. 671, 102 S.E. 2d 229. If, in the interest of public safety at an intersection «of highways, greater visibility is required than is afforded by removing obstructions from existing rights of way, land necessary to afford such increased view of approaches to the intersection may be taken by the appropriate public authorities under the power of eminent domain, but just compensation for the land so taken must be paid to the property owner. His property may not be taken for such purpose, without compensation, under the guise of a regulation of his business pursuant to the police power.

We do not have before us in the present case a charge that the defendant obstructed the right of way of either of the roads abutting his lot, by storing material thereon or by permitting material to spill over from his property onto such right of way. Nothing in this opinion is to be deemed to restrict the right of the State, or of the local authorities, to take appropriate action against such practices when and where they may occur.

The requirement that the owner of an automobile wrecking yard, located in a rural, “general industrial district” of Forsyth County, erect a solid fence 6 feet high at least 50 feet from the edge of any public road adjoining the yard, has no substantial relation to the public health, morals or safety such as will sustain the requirement as a legitimate exercise of the police power of the State for any of these purposes. In this respect the present case is distinguishable from decisions in other jurisdictions sustaining city ordinances requiring fencing of junk yards. See: Rotenberg v. City of Fort Pierce, 202 So. 2d 782 (Fla. App.); City of Shreveport v. Brock, 230 La. 651, 89 So. 2d 156; City of New Orleans v. Southern Auto Wreckers, 193 La. 895, 192 So. 523; Lachapelle v. Town of Goffstown, 107 N.H. 485, 225 A. 2d 624; Vermont Salvage Corp. v. Village of St. Johnsbury, 113 Vt. 341, 34 A. 2d 188. Even in an industrial or commercial area of a city or town, the safety of pedestrians upon adjoining sidewalks, the fire hazard inherent in an accumulation of junk, the threat to the public health incident to the attraction of such yards for rats, the possible use of such yards as hiding places for criminal activities and the attraction of materials stored therein for playing children, offer reasonable basis for the requirement that junk yards maintained in cities or other heavily populated areas be securely fenced.

The State does not contend upon this appeal that aesthetic considerations alone will support an exercise of the police power to impose a regulation upon the manner in which a landowner may use his property for the conduct of an otherwise lawful business. Its contention is that the requirement of fencing, imposed by the ordinance before us, is valid because reasonably related to public safety. We, therefore, do not have before us the question presented to this Court in State v. Brown and State v. Narron, 250 N.C. 54, 108 S.E. 2d 74, concerning the validity of such a requirement, based upon aesthetic considerations alone. We express no opinion thereon, though we note the growing body of authority in other jurisdictions to the effect that the police power may be broad enough to include reasonable regulation of property use for aesthetic reasons only. See: Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 102, 99 L.Ed. 27; E. B. Elliott Adv. Co. v. Metropolitan Dade County, 425 F. 2d 1141 (5th Circuit, applying the law of Florida); Murphy v. Town of Westport, 131 Conn. 292, 40 A. 2d 177; Rotenberg v. City of Fort Pierce, supra; City of Shreveport v. Brock, supra; Lachapelle v. Town of Goffstown, supra; Naegele Outdoor Advertising Co. v. Village of Minnetonka, 281 Minn. 492, 162 N.W. 2d 206; People v. Stover, 12 N.Y. 2d 462, 240 N.Y.S. 2d 734, 191 N.E. 2d 272, app. dism., 375 U.S. 42; Annot., 21 A.L.R. 3rd 1222, 1225.

The provision of the Forsyth County ordinance which the defendant is charged with violating being invalid for the reasons above stated, the motion to quash was properly granted.

Affirmed.