City of Fayetteville v. Spur Distributing Co.
| Decision Date | 13 December 1939 |
| Docket Number | 674. |
| Citation | 5 S.E.2d 838,216 N.C. 596 |
| Parties | CITY OF FAYETTEVILLE v. SPUR DISTRIBUTING CO., Inc. |
| Court | North Carolina Supreme Court |
The plaintiff brought this action against the defendant to permanently enjoin the latter from constructing and establishing a gas storage tank of 15,000 gallons capacity in the city fire district, contrary to the city ordinance.
It is alleged in the complaint that the proposed site of the storage tank is not only within the fire district but in a very populous part of the city, and that its installation and maintenance "will create a most dangerous public nuisance and will seriously impair the safety of the citizens using this arterial highway and street and imperil the lives of the multitude of citizens frequenting the theatre hospital and other points where great throngs gather and which are situated in and near this location." It is further alleged that the site upon which the defendant wishes to locate the tank has been set apart by particular description and recognized by the State Fire Insurance Department and rating bureau of the fire insurance companies doing business in the State as being a high class business district with special restrictions and regulations as to fire insurance rates and costs to insurers, and that the location of the tank at this point will of itself create a particularly dangerous hazard to the business district of the entire city, and that the storage of inflammables therein "will become immediately a most dangerous nuisance to both persons and property and make fire control in the business district most difficult and uncertain." It is further alleged that the presence, use, and maintenance of any storage tank of 10,000 gallons or more capacity "would create a most dangerous nuisance, unwarranted by circumstances and not in any manner contemplated by the zoning regulations of the city or authorized within the fire limits for fire control authorities."
It is further alleged "that an ordinance of the City of Fayetteville prohibits the use of tanks for gasoline storage within the fire district limits of a capacity greater than 4500 gallons upon any one location."
The Spur Distributing Company, defendant, answered admitting only the formal allegations of the complaint and the fact that it was the intention of the defendant to "erect, operate and maintain on the location described in the complaint, a retail service station; and to that end will install, in accordance with the rules, regulations and specifications of the National Board of Fire Underwriters, and in conformity with any and all State regulations, a modern and scientifically constructed underground tank, with the latest approved safety appliances, for the storage of gasoline, with a capacity of 15,000 gallons", which gasoline tank is to be filled by unloading and piping directly from a tank car stationed on a spur track of the Atlantic Coast Line Railroad Company, near the proposed site for said filling station.
The answer denies that the construction and maintenance of these facilities for the handling of gasoline would bring about a dangerous condition or constitute a nuisance, and points out that the method of handling the gasoline would reduce a hazard now existing because of the method of unloading and operation of other filling stations within the fire limits.
Defendant further alleges that subsequent to the issue to it of a building permit for the construction, maintenance, and operation of a filling station, the Board of Aldermen of the City "adopted an ordinance which undertakes to prohibit the use of tanks for the storage of gasoline within the fire district of the City of Fayetteville with a storage capacity greater than 4,500 gallons", a copy of which is attached to the answer. The defendant complains that the ordinance with amendments thereto, is unconstitutional and void as being based upon no reasonable grounds, but predicated upon conjecture and apprehension of danger without adequate foundation in fact. It is alleged that the ordinance, as amended, is "unreasonable, arbitrary, discriminatory and capricious; and deprives this answering defendant of conducting a lawful business; and unlawfully deprives this answering defendant of the use and occupancy of its property without due process of law; and denies this answering defendant equal protection of the law, in contravention of Amendment 14, Section I of the Constitution of the United States [U.S.C.A.], and the amendments thereto; and Article I, Section 17 of the Constitution of the State of North Carolina".
The defendant further alleges that it is now operating about 250 retail service stations in 19 states, in congested areas, and gives a list of such stations, with their locations, within the State of North Carolina.
The exhibits attached to the answer include the ordinance, amendments thereto, building permit, and city engineer's certificate. Upon the hearing, the defendant moved to dismiss the action for the following reasons, which we give in summary: First, that the acts set forth in the complaint, if true, are made a misdemeanor by the provisions of the city ordinance adopted May 1, 1939, and amended May 8, 1939; second, that the acts complained of, as appear from the face of the complaint, would be a violation of the ordinance against the storing of gasoline within the fire limits of the city in tanks of more than 4,500 gallon capacity, and that since this ordinance provides that the violations of the same shall be punishable as misdemeanors, the acts complained of would constitute criminal offenses and cannot be enjoined; and, third, that it appears upon the face of the complaint that the plaintiff has a complete and adequate remedy at law, and, therefore, cannot invoke the intervention of a Court of Equity.
This motion was overruled, and defendant excepted.
Plaintiff moved to strike out the first paragraph of defendant's second and further defense. Motion was allowed and defendant excepted.
The court, thereupon, heard evidence of the plaintiff and defendant addressed to allegations in the complaint and answer, upon which evidence, and upon formal admissions in the pleadings, the Judge made pertinent findings of fact and conclusions of law, among which are the following: "That the handling, storing and conveying from tank cars by pipe of gasoline in large quantities of 15,000 gallons is dangerous, and while not a nuisance per se might easily become one from the way the said tank was stored, or the way that the gasoline in such large quantities, to-wit, 15,000 gallons, would be piped or transferred to said tank."
Upon the evidence and the facts found, the Judge continued the injunction to the hearing, and from this judgment the defendant appealed, assigning errors.
Tompkins & Tompkins, of Columbia, S. C., and Rose & Lyon, of Fayetteville, for defendant, appellant.
D. M. Stringfield and G. S. Quillin, both of Fayetteville, for plaintiff, appellee.
The defendant did not argue, either in the brief or in the oral argument, the constitutional questions raised in its answer relating to the propriety of the exercise of the police power in the regulation of its business. Inasmuch, however, as this question may have some bearing upon other matters involved, we may say that the power of a municipality to make proper ordinances for the protection of the health, safety, and welfare of the people is derived from Chapter 56 of the Consolidated Statutes, relating to municipal corporations; and C.S. Sections 2673, 2676, and 2776(r), (Michie's Code), may be considered as pertinent. In this instance the existence of a danger to the public, enhanced by the proposed location of the storage tank in a congested area within the fire district in the business part of the city, would sustain a finding, at least for the purpose of passing on the order to show cause, that the business is affected with a public interest justifying resort to the police power in its regulation, and that the restrictions provided in the statute have a proper relation to the evil sought to be remedied. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; Shuford v. Waynesville, 214 N.C. 135, 198 S.E. 585.
The defendant bases its argument for reversal upon three propositions: First, that a municipal corporation has no power to invoke the extraordinary remedy of injunction to prevent a threatened violation of one of its ordinances; second, that the court committed error in striking from defendant's answer the second paragraph relating to use and maintenance of similar stations and equipment in other North Carolina cities; and, third, that the court cannot enjoin an alleged public nuisance when the apprehended injury is at most contingent and speculative and not a nuisance per se.
For a more convenient discussion we take up first the order striking out part of defendant's answer. Such an order made in apt time,...
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