Town of Wake Forest v. Medlin

• Decision Date: 02 July 1930
• Docket Number: 266.
• Citation: 154 S.E. 29,199 N.C. 83
• Parties: TOWN OF WAKE FOREST v. MEDLIN.
• Court: North Carolina Supreme Court

154 S.E. 29

199 N.C. 83

TOWN OF WAKE FOREST v. MEDLIN.

No. 266.

Supreme Court of North Carolina

July 2, 1930

Appeal from Superior Court, Wake County; Johnson, Special Judge.

Civil action by the town of Wake Forest against A. J. Medlin. Judgment for plaintiff, and defendant appeals.

Affirmed.

"Police power" of state extends not only to regulations promoting public health, public morals, and public safety but also to those designed to promote public convenience.

Civil action to recover penalty for violation of town ordinance.

On January 29, 1929, the board of commissioners of the town of Wake Forest, pursuant to charter and general statutory authority, duly adopted an ordinance, the pertinent part of which is as follows:

"1. That from and after the first day of February, 1929, it shall be unlawful to erect, build, maintain or operate any station for the sale or distribution of gasoline, kerosene or any other petroleum products in any part of the Town of Wake Forest west of the Seaboard Air Line Railway tracks."

The penalty for violating said ordinance is fixed at $50 for each day such violation shall continue.

For a long time before the adoption of said ordinance, and for a few days after it took effect, the defendant operated a curb pump, or gasoline filling station, and sold gasoline, in that portion of the town affected by said ordinance.

The town of Wake Forest (population between 1,500 and 2,000) is bisected from north to south by the tracks of the Seaboard Air Line Railway. The principal residential section of the town, including Wake Forest College and its various buildings, high school, church, and residences, is located on the west side of said tracks. Through this section, thus thickly populated, runs State Highway No. 50, also numbered National Highway No. 1, parallel with the railroad tracks. There are only two mercantile establishments in this section of the town, one of which is owned by the defendant, in connection with which he has heretofore operated his curb pump or filling station.

The business section of the town, containing a number of stores, foundry, cotton gin, sawmill, etc., is to be found on the east side of the railroad tracks.

The ordinance recites that ample facilities for gasoline and filling stations are to be found north and south of the town limits and east of the railroad.

From a directed verdict for the plaintiff, on the admitted facts, and judgment for $50 and the costs, the defendant appeals, assigning errors.

Clyde A. Douglass and Robert N. Simms, both of Raleigh, for appellant.

Mills & Mills and Pou & Pou, all of Raleigh, for appellee.

STACY, C.J.

All Wake Forest is divided into two parts, in one of which, the business section, east of the railroad, gasoline filling stations are allowed, in the other, the residential section, west of the railroad, gasoline filling stations are not allowed. The case presents the legality of such division and regulation. We are not now concerned with the validity of the ordinance as it may affect "any other petroleum products."

That the regulation of gasoline filling or gasoline storage stations comes within the police power of the state is freely conceded; and that such power is specifically conferred upon the plaintiff is likewise conceded. C. S. § § 2673 and 2787; Burden v. Ahoskie, 198 N.C. 92, 150 S.E. 808; MacRae v. Fayetteville, 198 N.C. 54, 150 S.E. 810; Clinton v. Oil Co., 193 N.C. 432, 137 S.E. 183, 55 A. L. R. 252; Bizzell v. Goldsboro, 192 N.C. 348, 135 S.E. 50, 49 A. L. R. 755; Cecil v. Toenjes (Iowa) 228 N.W. 874.

It is clearly within the police power of the state to regulate the business of operating such stations and to declare that in particular circumstances and in particular localities (i.e., the residential section of a thickly populated town or city) a gasoline filling or gasoline storage station shall be deemed a nuisance in fact and in law, provided this power is not exerted arbitrarily, or with unjust discrimination, so as to infringe upon rights guaranteed by the state and federal Constitutions. Reinman v. Little Rock, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900. So long as the regulation is not shown to be clearly unreasonable and arbitrary, and operates uniformly on all persons similarly situated, the district itself being selected in the exercise of that reasonable discretion necessarily accorded the lawmaking power, it cannot be judicially declared that there is a deprivation of property without due process of law, or a denial of the equal protection of the law, within the meaning of the constitutional provisions on the subject. Slaughter House Cases, 16 Wall. 36, 21 L.Ed. 394. Perhaps it should be observed that the police power extends, not only to regulations designed to promote the public health, public morals, and public safety, but also to those designed to promote the public convenience or the general prosperity. C., B. & Q. Ry. Co. v. Illinois, 200 U.S. 561, at page 592, 26 S.Ct. 341, 50 L.Ed. 596, 4 Ann. Cas. 1175.

A gasoline filling or gasoline storage station may not be a nuisance per se, but it may become such, like a hospital ( Lawrence v. Nissen, 173 N.C. 359, 91 S.E. 1036), a livery stable (State v. Bass, 171 N.C. 781, 87 S.E. 972, L. R. A. 1916D, 583), a dance hall (State v. Vanhook, 182 N.C. 831, 109 S.E. 65), a sawmill ( Barger v. Smith, 156 N.C. 323, 72 S.E. 376), or a pool room (Brunswick-Balke Co. v. Mecklenburg County, 181 N.C. 386, 107 S.E. 317), because of its location or by reason of the manner in which it is conducted. Oil and gasoline, invariably used and stored in such stations, are so highly inflammable and explosive that they may, and do, increase the danger of fire, no matter how carefully the buildings are constructed or how noncombustible their materials. And although lawful and necessary buildings, they are of such character that regulation of the place of their erection and use comes well within settled principles relating to the exercise of the police power. "The state is not bound to wait until contagion is communicated from a hospital established in the heart of a city. It may prohibit the establishment of such a hospital there, because it is likely to spread contagion. So the keeping of dangerous explosives and inflammable substances, and the erection of buildings of combustible materials within the limits of a dense population, may be prohibited, because of the probability or possibility of public injury." Walker, J., in Durham v. Cotton Mills, 141 N.C. page 636, 54 S.E. 453, 460, 7 L. R. A. (N. S.) 321.

Is the ordinance in question void for arbitrariness or unjust discrimination? We think not. It operates on all alike within the territory affected, and all within the prescribed limits are affected by its terms. State v. Roberson, 198 N.C. 70, 150 S.E. 674. The town of Wake Forest is naturally separated into business and residential sections by the tracks of the Seaboard Air Line Railway. What was said in Turner v. New Bern, 187 N.C. 541, 122 S.E. 469, would seem to be a direct authority for upholding the present ordinance. We are content to rest our decision on the substance of that opinion.

The appropriateness of the proceeding, a civil action by plaintiff to collect the penalty incurred under the ordinance, is not questioned. State v. Abernethy, 190 N.C. 768, 130 S.E. 619.

Affirmed.

CLARKSON J. (dissenting).

The uncontradicted testimony in this action was to the effect: That the defendant built his store building at the present location in 1905 and has ever since that time operated his business at that location, and during all of that period has been engaged in the sale of gasoline at said place. He does not operate a filling station or a garage, but only has what is commonly known as a curb filling pump located beside the curb and drawing gasoline from an underground tank, all of the equipment being of the best approved and modern type. During all of the time of his operation there has never been any congestion around his place nor any accident of any kind, nor any interference with traffic or the safety of person or property. There has been no disorder of any kind, and there have been no fumes or odors emitted from the place and nothing unsanitary about it. There has been absolutely no noise attributable to it. During the twenty-five years of operation there has been no fire communicated from the place of business. Immediately across the sidewalk from the curb pump is defendant's brick building in which is operated a dining room for the service and convenience of tourists and also a small store. The building is largely covered by ivy and is beautified by potted plants and is kept in a clean, sanitary, and very attractive condition and is referred to in the evidence as a place of beauty. The nearest building to the brick building is the defendant's residence, which is a large and modern and handsome building fitted for and used by tourists as a lodging place. The nearest building is a residence across the wide main street and something like 150 feet distant from the gasoline pump. Northwardly from the pump the nearest building is a residence more than 500 feet away.

Dr Paschall, testified, in part: "My home is in Wake Forest. I have been teaching at Wake Forest College since 1896. I am a graduate of Wake Forest College, and I have been living in the Town of Wake Forest for 33 years. I am professor of Greek. I am thoroughly familiar with the town. I am thoroughly familiar with the location of Mr. Medlin's home and place of business. His home and place of business are neat and attractive. There is absolutely nothing that is unsightly. *** I know that Mr. Medlin has been selling gasoline there for a good many years. I don't know of any accident or...