Convent of Sisters of St. Joseph of Chestnut Hill v. City of Winston-Salem

• Decision Date: 13 January 1956
• Docket Number: WINSTON-SALEM,No. 380,380
• Citation: 90 S.E.2d 879,243 N.C. 316
• Parties: CONVENT OF The SISTERS OF SAINT JOSEPH OF CHESTNUT HILL, Pennsylvania v. CITY OF
• Court: North Carolina Supreme Court

Page 879

90 S.E.2d 879

243 N.C. 316

CONVENT OF The SISTERS OF SAINT JOSEPH OF CHESTNUT HILL, Pennsylvania v. CITY OF WINSTON-SALEM.

No. 380

Supreme Court of North Carolina.

Jan. 13, 1956

Deal, Hutchins & Minor, Winston-Salem, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice, Winston-Salem, for defendant-appellee.

WINBORNE, Justice.

The parties having agreed upon a statement of facts on which the case was submitted to the trial court, exception to the failure of the court to find other facts is not well taken. Hence exception to the judgment, and to the entry of it, assigned as error on this appeal presents for decision this question: Do the facts to which the parties agreed support the judgment? Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15, and cases cited. See also Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555; In re Hall's Guardianship, 235 N.C. 697, 71 S.E.2d 140, 32 A.L.R.2d 856, and cases cited. Also James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759; Scarboro v. Pilot Life Ins. Co., 242 N.C. 444, 88 S.E.2d 133; Byrd v. Thompson, N.C., 90 S.E.2d 394. The answer is 'Yes.'

The acceptance of benefits under a statute generally precludes an attack upon it. See 11 Am.Jur. pp. 765 to 767; Cameron v. McDonald, 216 N.C. 712, 6 S.E.2d 497; Wall v. Parrot Silver & Copper Company, 244 U.S. 407, 37 S.Ct. 609, 611, 61 L.Ed. 1229.

In the Wall case the U. S. Supreme Court had this to say: 'They cannot claim the benefit of statutes and afterwards assail their validity. There is no sanctity in such a claim of constitutional right as prevents it being waived as any other claim of right may be.'

And in 11 Am.Jur. p. 766, the text writer states: 'Estoppel to question the constitutionality of laws applies not only to acts of the Legislature, but to ordinances and proceedings of municipal corporations, and may be extended to cases where proceedings of a municipal corporation are questioned on the ground of the unconstitutionality of the statute under which they are had, as well as to cases where they are attacked on other grounds.'

The writer continues: 'Estoppel is most frequently applied in cases involving constitutional law where persons, in some manner, partake of advantages under statutes. The rule is well settled that one who voluntarily proceeds under a statute and claims benefits thereby conferred will not be heard to question its constitutionality in order to avoid its burdens. Certainly such a person will not be allowed to retain his advantage or keep his consideration and then repudiate the act as unconstitutional. This principle applies also to questioning the rules or actions of state commissions.'

Moreover, in Cameron v. McDonald, supra [216 N.C. 712, 6 S.E.2d 499], this Court said: 'It is the general rule, subject to certain exceptions, that a defendant may waive a constitutional as well as a statutory provision made for his benefit. * * * And this may be done by express consent, by failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it', citing State v. Hartsfield, 188 N.C. 357, 124 S.E. 629.

In the light of these principles the answer finds support in a recital of the agreed facts in logical order. The B. F. Huntley homesite and dwelling were located within an area zoned as Res. A-1 by the zoning ordinance of the city. The zoning ordinance prohibited private schools from all residential zones, except upon 'Special Use Permit' granted by the Zoning Board of Adjustment under the provisions of Section 13 of the ordinance. The Catholic Bishop of Raleigh purchased the Huntley premises for use as a church elementary school. He then applied for a special use permit under the provisions of Section 13 of the zoning ordinance of the city. Procedure there prescribed was followed, and a special use permit was issued upon conditions stated. The Bishop, through counsel, accepted the permit on 17 February, 1949. The premises and...