Burden v. Town of Ahoskie

• Decision Date: 11 December 1929
• Docket Number: 105.
• Citation: 150 S.E. 808,198 N.C. 92
• Parties: BURDEN v. TOWN OF AHOSKIE et al.
• Court: North Carolina Supreme Court

150 S.E. 808

198 N.C. 92

BURDEN v. TOWN OF AHOSKIE et al.

No. 105.

Supreme Court of North Carolina

December 11, 1929

Appeal from Superior Court, Hertford County; Midyette, Judge.

Action by H. M. Burden against the town of Ahoskie and others, to compel defendants by mandamus to issue building permit for construction of filling station. From a judgment denying the writ, plaintiff appeals. Reversed.

Ordinance passed after commencing action to compel issuance of building permit could not be considered on appeal from judgment refusing mandamus.

On August 30, 1926, the board of commissioners of Ahoskie adopted the following ordinance: "No building or construction shall be begun or enlarged within the corporated limits of Ahoskie unless a general description, location and approximate cost of same are submitted to and approved by the mayor and a majority of the commissioners," etc. Thereafter on May 20, 1929, the town of Ahoskie adopted the following ordinance: "It shall be unlawful for any person, firm or corporation, to build, erect or maintain any dance hall, gasoline filling station, carnival or tent show or pool room within three hundred feet of the property of the Ahoskie Graded School," etc.

The plaintiff, in April, 1929, purchased a lot at the intersection of the west margin of West Main street with the northern margin of the state highway, which said lot is 166.5 feet from the school building. On May 13, 1929, the plaintiff duly applied to the mayor and board of commissioners of the town of Ahoskie for a building permit to construct and operate on said lot an automobile service station, commonly known as a "filling station," agreeing, if the permit were issued, to conform to all building laws and regulations. On May 20, 1929, after adopting the second ordinance above referred to, the board of commissioners and mayor declined to grant the permit. Thereupon, on May 29 plaintiff instituted a civil action against the town of Ahoskie and the commissioners of said town for the purpose of compelling said defendants by mandamus to issue a building permit for the construction of said filling station.

After suit was instituted, a third ordinance was adopted by the town, reading as follows: "It shall be unlawful for any person, firm or corporation, to build, erect or maintain any dance hall, gasoline filling station, carnival or tent show or pool room within three hundred feet of the property of the Ahoskie Graded School; *** and any person, firm or corporation violating this ordinance shall incur a penalty of $50.00 for each offense *** Provided that any dance hall, gasoline filling station, carnival or tent show which may now be in operation or process of construction within 300 feet of said school property shall have until January 1, 1930, to be removed therefrom."

It appears from the record that at the time plaintiff applied for a permit there were two filling stations in operation within 300 feet of the school building. One, known as Moore's filling station, is situated 194 feet from the school property, and the other, known as Brewer's filling station, is situated 268 feet from the school building. The location of the filling stations in operation and the location of plaintiff's lot is shown on the following map:

(Image Omitted)

The judge of the superior court denied the writ of mandamus, and the plaintiff appealed.

A. T. Castelloe, of Aulander, for appellant.

Travis & Travis, of Halifax, and Alvah Early, of Ahoskie, for appellees.

BROGDEN J.

Are ordinances of a municipality valid, which prohibit the erection of a filling station within 300...