Bizzell v. Bd. Of Aldermen Of City Of Goldsboro

• Decision Date: 20 October 1926
• Docket Number: (No. 95.)
• Citation: 135 S.E. 50
• Parties: BIZZELL v. BOARD OF ALDERMEN OF CITY OF GOLDSBORO et al.
• Court: North Carolina Supreme Court

135 S.E. 50

(192 N. C. 348)

BIZZELL

v.BOARD OF ALDERMEN OF CITY OF GOLDSBORO et al.

(No. 95.)

Supreme Court of North Carolina.

Oct. 20, 1926.

Stacy, C. J., dissenting.

Appeal from Superior Court, Wayne County; Sinclair, Judge.

Action by Eleanor Bizzell, by her guardian, Laura S. Bizzell, against the Board of Aldermen of the City of Goldsboro and others. Judgment for plaintiff, and defendants appeal. Affirmed.

This was an action by plaintiff against defendants that an alternate writ of mandamus be issued directing the building inspector of Goldsboro to issue permit, or for the building inspector and the other defendants to show cause why said permit should not be issued.

The plaintiff, in part, contends that she is the owner and in possession of a lot of laud situated in the city of Goldsboro, at the northwestern intersection of West Center and Ash streets, that during the month of February, 1926, the plaintiff leased said lot of land to the Sinclair Oil Company, which company proposed erecting and operating a gasoline filling station on said land, and to that end the said company duly applied to the city of Goldsboro for a permit to construct andoperate said station. That the building inspector of the city of Goldsboro is the officer Created by law to pass upon applications for permits to construct buildings in the city of Goldsboro, and that it is the duty of said inspector to issue permits for the construction and operation of filling stations in the city of Goldsboro and to require the applicant to conform to the building laws of the state. That at a regular meeting of the board of aldermen, held in the city of Goldsboro on the 7th day of July, 1924, the board of aldermen adopted the three ordinances, as follows:

"Be it ordained by the board of aldermen of the city of Goldsboro: That no gasoline filling or gasoline storage station shall hereafter be located, conducted, or operated in the city of Goldsboro without first obtaining consent from the board of aldermen at some regular meeting thereof. Any person, firm, or corporation, violating this ordinance shall, upon conviction, before the mayor, be fined $50 for each offense, and every day of such violation shall constitute a separate offense.

"Be it ordained by the board of aldermen of the city of Goldsboro: That no gasoline filling or gasoline storage station shall start operation thereof in the city without first obtaining permission from the board of aldermen to do so at a regular meeting thereof. Any person, firm, or corporation, violating this ordinance, shall, upon conviction, before the mayor, be fined $50 for each offense, and every day of such violation shall constitute a separate offense.

"Be it ordained by the board of aldermen of the city of Goldsboro: That all permits heretofore issued for gasoline filling or gasoline storage stations in the city which are not already constructed be and the same are hereby revoked."

That each of said ordinances is unconstitutional and void and particularly objectionable in that they do not prescribe a uniform rule of action for governing the exercise of the discretion of the aldermen, but, on the contrary, leave the rights of property subject to arbitrary discretion of the board. That having agreed with the plaintiff as to the terms of the lease referred to above, the Sinclair Oil Company applied to the board of aldermen of the city of Goldsboro for a permit to construct said filling station on the lot of the plaintiff, and the plaintiff, through her attorney, likewise appeared before the board of aldermen requesting said permit; that the said aldermen refused to issue the permit. That the plaintiff applied to the building inspector of the city of Goldsboro for a permit to construct said filling station and the said inspector refused to issue the permit. That the lot of the plaintiff herein referred to is situated at the intersection of state highway No. 10 and West Center street, which is one of the principal business streets in the city of Goldsboro; eastwardly across the street from the plaintiff is the Durham Hosiery Mills; diagonally across the street is the filling station of the Texas Company; southwardly and across highway No. 10, a mer cantile establishment, livery stable, and blacksmith shop; on West Center street and in front of the plaintiff's lot are the railroad tracks of the Southern, Atlantic Coast Line and Norfolk & Southern Railroads. That the action of the city of Goldsboro in refusing to issue said permit was an arbitrary and unreasonable exercise of discretion and is unlawful. That the filling station which plaintiff proposed erecting on said lot would comply in every respect with the building laws of the state of North Carolina and the ordinances and regulations of the city of Goldsboro, and that, therefore, the building inspector has no authority to reject said application, and, as the plaintiff is informed and believes, must issue said permit subject to the supervision by him of the construction and material, as directed in section 2748, vol. 1, of the Consolidated Statutes of North Carolina.

The defendant admits that the Sinclair Oil Company applied to the city of Goldsboro for a permit to construct and operate a gasoline station at the northwest intersection of East Center and Ash streets in the city of Goldsboro. It admits that, subject to statutory regulations and valid ordinances of the city of Goldsboro, and, in some instances, to prior consent by the board of aldermen, it is the duty of the building inspector of said city to pass upon permits for the construction of buildings. It is specifically denied that the special ordinances are unconstitutional or void or objectionable.for any reason; and in this connection alleges that said ordinances constitute valid and constitutional exercise of power on the part of the board of aldermen of the city of Goldsboro. That the board of aldermen were induced to reach their decision by a number of reasons, among them the following: That the proposed location for a filling station is located within two blocks and a half of one of the primary schools of the city and on the direct route of the approach thereto, and that this fact, together with the fact that Ash street (said street of approach to said school) is also a part of the central highway of North Carolina would make the construction of a filling station on said corner a continual menace to the school children going to and from said school; that a further consideration was the fact that said proposed filling station would be located adjoining a residential section of said city, and that there is no business necessity requiring the erection of a filling station on said corner, in view of the fact that there are five other filling stations not far removed from the proposed site.

The court below rendered the following judgment:

"This cause coming on to be heard before his honor, N. A. Sinclair at chambers, and, being heard upon the verified complaint and answer, upon affidavits filed by the city of Goldsboro herein, and upon argument of counsel for theplaintiff and counsel for the defendants, and it appearing to the court after a full consideration of said pleadings, affidavits, and arguments that the plaintiff is entitled to the relief demanded in the complaint, it is thereupon considered, ordered, and adjudged that the building inspector of the city of Goldsboro be and he is hereby ordered and directed to issue a permit to the plaintiff for the construction of a filling station upon the lot described in the complaint, subject to the conformance by the plaintiff with the building laws of the state of North Carolina."

D. C. Humphrey and Kenneth C. Royall, both of Goldsboro, for appellants.

Hugh Dortch and Dickinson & Freeman, all of Goldsboro, for appellee.

CLARKSON, J. The sole question presented is, are the ordinances valid or void? We are of the opinion they are void.

In State v. Deposit. Co., 191 N. C. 645, 132 S. E. 792, it was said:

"The police power of a state is broad and comprehensive. It is elastic so that the governmental control may be adequate to meet changing social, economic, and political conditions. Under the United States Constitution, the police power has been left to the states—in fact, it is inherent in the states. Each state has the power to regulate the relative rights and duties of all persons, individuals, and corporations within its jurisdiction for the public convenience, welfare and good—for public health, public morals, and public safety. The only limit is that no law shall be enacted repugnant to the Constitution of the United States [Fourteenth Amendment] or the state. Durham v. Cotton Mills, 141 N. C. 615, 54 S. E. 453, 7 L. R. A. (N. S.) 321; Shelby v. Power Co., 155 N. C. 196, 71 S. E. 218, 35 L. R. A. (N. S.) 488, Ann. Cas. 1912C, 179; Shields v. Harris, 190 N. C. 527, 130 S. E. 189; Moore v. Greensboro, ante, p. 592, 191 N. C. 537, 132 S. E. 565, 6 R. C. L. § 188-190."

In Weaver v. Palmer Bros. Co., 46 S. Ct. 320, 70 L. Ed. 654, the facts succinctly were: Palmer Bros. Company, a Connecticut corporation, had a large factory in Connecticut, in which for more than a half century it had manufactured comfortables in that state and had sold them there and elsewhere and in the state of Pennsylvania. In Pennsylvania a law was passed regulating the manufacture, sterilization, and sale of bedding. In the act, the definition of "shoddy" was "any material which has been spun into yarn, knit or woven into fabric, and subsequently cut up, torn up, broken up, or ground up." It was made a violation of law, punishable by fine or imprisonment to make comfortables with "shoddy" or to sell comfortables made with "shoddy." The evidence disclosed by eminent public health scientists is that, in the absence of sterilization or disinfection, there would be little, if any, danger to the health of the users of comfortables filled with "shoddy." There was no evidence that any...