Elizabeth City v. Aydlett

• Decision Date: 10 November 1931
• Docket Number: 24.
• Citation: 161 S.E. 78,201 N.C. 602
• Parties: CITY OF ELIZABETH CITY v. AYDLETT.
• Court: North Carolina Supreme Court

161 S.E. 78

201 N.C. 602

CITY OF ELIZABETH CITY v. AYDLETT.

No. 24.

Supreme Court of North Carolina

November 10, 1931

Appeal from Superior Court, Pasquotank County; Clayton Moore Special Judge.

Action by the City of Elizabeth City against A. L. Aydlett. From the judgment, defendant appeals.

Affirmed.

Police power embraces whole system of internal regulation, and cannot be bargained away.

"Police power" is inherent power, enabling people to prohibit matters inimical to comfort, safety, health, and welfare of society.

A Laurence Aydlett, M. B. Simpson, and McMullan & McMullan, all of Elizabeth City, for appellant.

J. B Leigh, John H. Hall, Jr., and Thompson & Wilson, all of Elizabeth City, for appellee.

ADAMS J.

The plaintiff is a municipal corporation. Private Laws 1923, c 15. The defendant, a resident thereof, is the owner of a lot situated on the northwest corner of Main and Road streets. In July, 1928, the board of aldermen passed an ordinance prohibiting the construction or maintenance of filling stations within specified municipal areas. The defendant's lot is within a district from which filling stations were excluded by the terms of this ordinance. Some time before September, 1929, the defendant applied to the proper authorities of the city for permission to build a filling station on his lot, and his application was denied. He then commenced the erection of the building, and the city procured a warrant from a justice of the peace charging the defendant in a criminal proceeding with a breach of the ordinance. At the hearing, the defendant was discharged; whereupon the city instituted a civil action to enjoin him from going on with the work. On appeal from a judgment rendered in the superior court, this court held upon the facts then appearing that the city was not entitled to injunctive relief. Elizabeth City v. Aydlett, 198 N.C. 585, 152 S.E. 681.

On October 7, 1929, the city enacted a zoning ordinance pursuant to authority conferred by the General Assembly. Public Laws 1923, c. 250. The ordinance was adopted in the interest of the public health, safety, morals, comfort, prosperity, and general welfare of the city, and was designed to regulate and restrict the location of buildings to be used for trade, industry, residence, or other specified purposes; to divide the city into zones or districts; to classify buildings on the basis of the kind or character of the business to be done; and to prescribe a general method of administration. To this end, the city was divided into residence A districts, residence B districts, business A districts, business B districts, and industrial districts. With respect to each class, the ordinance purports to be uniform, and not only to secure the public safety, but to facilitate provision for transportation, water, schools, and other public requirements.

The defendant's lot is in business A district; and the zoning ordinance prohibits the erection of filling stations in this district at any time after the ordinance became effective.

After the adoption of the zoning ordinance, the defendant undertook to complete the filling station without a permit from the city, and the plaintiff brought suit on April 15, 1930, to restrain the defendant from proceeding in his enterprise. The restraining order issued at the commencement of the action was dissolved at the hearing, and, upon appeal to the Supreme Court, the judgment was reversed. Elizabeth City v. Aydlett, 200 N.C. 58, 156 S.E. 163. The cause again came on for hearing in the superior court of Pasquotank county at the May term of 1931, and the judge, upon a waiver of trial by jury, found from the evidence that the zoning ordinance had been duly adopted by the governing body of the city, not arbitrarily or with a purpose to discriminate against the defendant or any other person, but in the proper exercise of the police power for the promotion of the objects set out in the title of the ordinance, and that the regulations are reasonable, valid, and lawful.

The judgment which the appeal brings up for review is assailed on the ground that the ordinance in question is not only confiscatory but invalid and unenforceable because it does not operate uniformly, and subject to its provisions all persons within the defined locality. The latter position is based upon the finding that at the time the zoning ordinance was passed four other filling stations were in operation in the district in which the defendant's lot is situated "without molestation, actual or threatened, by the plaintiff or its agents," and that the station erected by the defendant compares favorably as to structure and operation with the other four.

The zoning ordinance provides that if at the time it was enacted any lot, building, or structure was being used in a manner or for a purpose which did not conform to the ordinance, and was not prohibited by some other ordinance, the manner of use or purpose might be continued. Section 2 (2). There is no finding that either of the four filling stations erected and operated before the zoning ordinance was adopted, and now operated, in territory covered by business A district is prohibited by some other ordinance. The ordinance of 1928 was intended to regulate the location and use of filling stations "and other business of like kind." It was not a zoning ordinance. It laid out certain districts described as "strictly residential or for church or school location," and contained the clause, "There is no filling station located therein." The ordinance of 1929 is a city zoning ordinance. Neither of its districts is coterminous with the boundaries of the former ordinance. It is a contention of the defendant that the law does not presume the existence of an independent ordinance which prohibits the maintenance of filling stations in any particular district, and that the defendant's lot, therefore, is not subject to such prohibition. For the present purpose, let us concede the defendant's position. The situation, then, is this: When business A district was laid off and included in the city zoning ordinance, four filling stations were maintained within its boundaries. Does the ordinance which prohibits the subsequent construction and use of such stations within the district create an unlawful discrimination?

The word "zoning" signifies the division of a municipal corporation into separate areas and the application to each area of regulations which generally pertain to the use of buildings or to their structural or architectural design. Such municipal action finds its authority in the police power which may be exercised, not only in the interest of the public health, morals, and safety, but for the promotion of the general welfare. This power embraces the whole system of internal regulation, and cannot be bargained away. State v. Vanhook, 182 N.C. 831, 109 S.E. 65; Pearsall v. R. Co., 161 U.S. 646, 16 S.Ct. 705, 40 L.Ed. 838, 845. Its nature and extent have been defined in these words: "It may be said in a general way that the police power extends to all the great public needs. Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 188, 55 L.Ed. 112, 32 L. R. A. (N. S.) 1062, Ann. Cas. 1912A, 487.

The police power is not static. It expands to meet conditions which necessarily change as business progresses and civilization advances. This is adverted to in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 118, 71 L.Ed. 303, 54 A. L. R. 1016, in which a zoning ordinance was upheld against an attack on the question of its constitutionality: "Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, addditional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation."

The objection of discrimination under an ordinance similar to one under consideration was raised in City of Aurora v Burns, 319 Ill. 84, 149 N.E. 784, 787, and was declared untenable. In a district of the city there were twelve grocery stores; the defendants had another under construction; and the city brought suit to enjoin them from constructing or using the building in violation of the...