Berger v. Smith

• Decision Date: 18 October 1911
• Citation: 72 S.E. 376,156 N.C. 323
• Parties: BERGER v. SMITH et al.
• Court: North Carolina Supreme Court

72 S.E. 376

156 N.C. 323

BERGER

v.SMITH et al.

Supreme Court of North Carolina.

Oct. 18, 1911.

1. Municipal Corporations (§§ 625, 626^*)— Police Power—Ordinance—Reasonableness.

A city ordinance prohibiting the construction and operation of mills within certain boundaries, in order to constitute a valid exercise of the city's police power, must not only be reasonable, but must apply impartially and fairly to all concerned.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. §§ 625, 626.*]

2. Nuisance (§ 34*)—Injunction—Question for Jury.

While defendants were constructing a sawmill and gin at the edge of the town of P., an ordinance was passed prohibiting the erection of any steam mill within certain boundaries, including the location of defendants' mill. On the block on which the mill was being erected there were only four residences and three stores, all on the east side of the block, while the mill was on the west side, which until then had been used for farming purposes. In a suit to restrain defendants' construction and operation of the mill, they answered that the ordinance was unreasonable, and that plaintiff, who operated a rival plant in the heart of the town, had procured it to be passed to prevent defendants' competition. Held that, since the construction and operation of such a mill was not a nuisance per se, though its location might make it a nuisance, it was error to grant a perpetual injunction without submitting the disputed facts to a jury, and on the issues found then determine the reasonableness of the ordinance.

[Ed. Note.—For other cases, see Nuisance, Dec. Dig. § 34.*]

Appeal from Superior Court, Johnston County; Whedbee, Judge.

Suit by N. B. Berger against R. H. Smith and another for a perpetual injunction to restrain the construction of a mill. Decree for complainant, and defendants appeal. Modified.

Langston & Allen, for appellants.

Aycock& Winston and M. T. Dickinson, for appellee.

CLARK, C. J. On January 18, 1911, the commissioners of the town of Pikeville passed an ordinance prohibiting the erection or operation of any sawmill or other steam mill within certain boundaries within said town, which are set out in the ordinance. Prior to the adoption of said ordinance the defendants had begun the erection of a sawmill and gin within said territory. Upon the block on which the mill was being erected there were only four residences and three stores, all on the east side of said block; the mill being on the west side, which till then had been used for farming purposes. The town of Pikeville is a village of 310 inhabitants. The defendant alleges that the plaintiff, Berger, owns a third interest in a rival plant of similar character which was being operated nearer the heart of the village. The defendants continued the erection of their plant until they were enjoined in this proceeding.

"An ordinance must not be oppressive or discriminating, but must be reasonable and lawful." 2 Dill. Mun. Corp. (5th Ed.) § 589; 2 Abb. Mun. Corp. § 545. When an ordinance is "within the grant of power to the municipality, the presumption is that it is reasonable, unless its unreasonable character appears upon its face. But the courts will declare an ordinance to be void, because unreasonable, upon a state of facts being shown which makes it unreasonable." Id. § 591, and cases there cited. It is further said that "an ordinance must be impartial, fair, and general. It would be unreasonable and unjust to make, under the same circumstances, an act done by one person penal and done by another not so. Ordinances which have this effect cannot be sustained. Special and unwarranted discrimination, or unjust or oppressive interference in particular cases, is not to be allowed." Id. 593.

Upon the allegations in the answer, if found to be true, the defendant was forbidden by this ordinance to erect and operate his steam mill in the edge...