Elizabeth City v. Aydlett

• Decision Date: 09 April 1930
• Docket Number: 15.
• Citation: 152 S.E. 681,198 N.C. 585
• Parties: CITY OF ELIZABETH CITY v. AYDLETT.
• Court: North Carolina Supreme Court

152 S.E. 681

198 N.C. 585

CITY OF ELIZABETH CITY v. AYDLETT.

No. 15.

Supreme Court of North Carolina

April 9, 1930

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

Proceeding for injunctive relief by the City of Elizabeth City against A. F. Aydlett. Judgment for plaintiff, and defendant appeals.

Reversed.

City held not entitled to injunction to restrain violation of ordinance passed in exercise of police power, violation of which is misdemeanor.

This is a proceeding for injunctive relief. The plaintiff is a municipal corporation, and duly passed an ordinance regulating the location and erection of filling or gasoline stations within certain territory within the corporate limits of Elizabeth City before defendant was indicted for its violation.

The complaint, among other things, alleges: "That the defendant, A. L. Aydlett, his servants, agents and employees are wrongfully, unlawfully and in violation of said ordinance, locating, erecting, building and constructing a filling station upon that certain lot formerly used as a residence by the said Aydlett and now used in part as such residence, located on the Northwest corner of West Main and North Road Streets; and within that portion of the Town of Elizabeth City from which filling stations are prohibited by the first section of the ordinance aforesaid. That a warrant has been issued against the said A. L. Aydlett charging him with the violation of said ordinance; that a trial was had before the court having jurisdiction of such matters, to-wit the Court of the Trial Justice of Pasquotank County on the 10th day of September, 1929, and the said Trial Justice found the said A. L. Aydlett not guilty and rendered judgment accordingly, said Trial Justice declaring that, in his opinion, the said ordinance was unconstitutional and void. That this plaintiff has no other relief except to ask this court for a restraining order enjoining the further violation of said ordinance by said defendant. Wherefore, plaintiff prays that a restraining order be issued by the Court enjoining the said A. L. Aydlett, his servants, agents and employees in proceeding further with the erection of the said filling station, and for such other and further relief as the nature and circumstances of the case may demand."

The defendant, among other things, says that the ordinance is void.

The judgment of the court below is as follows: "This cause coming on to be heard before the undersigned Judge of the Superior Court upon the pleadings, affidavits, exhibits and argument of counsel, and it appearing to the Court that the plaintiff has pursued its legal remedy by criminally prosecuting the defendant in the Trial Justice Court of Pasquotank County, which Court has exclusive and final jurisdiction of the offense, and that the Trial Justice found the defendant not guilty, upon the ground that in his opinion the ordinance under which defendant was prosecuted was unconstitutional and void, and that, no appeal lying from said judgment of acquittal, the plaintiff has exhausted its legal remedy, and the court being of the opinion and finding as facts from the evidence that the ordinance in question was not enacted arbitrarily by the Board of Aldermen of Elizabeth City or with any idea of discrimination against the defendant or any other person, but in the valid discretionary exercise of the police powers vested in such aldermen to secure the safety and general welfare of the public: It is considered adjudged and decreed that the defendant, his agents and servants be, and they are hereby permanently restrained and enjoined from constructing and erecting a filling station upon the site or location described in the complaint, and that the plaintiff recover its costs in this cause expended to be taxed by the Clerk."

The ordinance provides: "Any person, firm or corporation violating any provision of the foregoing ordinance, shall be guilty of a misdemeanor, and shall, upon conviction, pay a fine of Fifty Dollars for each offense and each day or part of day said violation shall continue, shall be considered and be a separate offense."

The defendant excepted, assigned error to the finding of facts set forth in the judgment and the judgment, and appealed to the Supreme Court.

Aydlett & Simpson, of Elizabeth City, for appellant.

J. B. Leigh and Thompson & Wilson, all of Elizabeth City, for appellee.

CLARKSON J.

We think the only question involved in the appeal: Can the city of Elizabeth City maintain its action against the defendant for injunctive relief to prevent defendant violating an ordinance of the town, the violation of which is a misdemeanor--a crime? We think not.

We do not pass upon the validity of the ordinance. The record discloses that defendant was indicted and acquitted by a court of competent jurisdiction for violating the ordinance in question. Can the equitable jurisdiction of the court be invoked by a municipality in an action of this kind to enforce its ordinance? We think not.

We find this expression in plaintiff's brief, that "plaintiff has no other remedy except the use of the injunction or the use of force." We do not understand what plaintiff means by the "use of force." This is a government of law, not force, and orderly government must ever prevail or we will have anarchy. Municipalities are subject to law like other corporations and persons. Plaintiff must be mindful of the fact that, under the guise of police regulations protecting the public welfare, attempts have been made to curb the free use of private property that is not a nuisance per se. Questions of this kind have ever been the subject of troublesome controversy as to whether the regulations are reasonable or arbitrary.

The bare question for this court to determine: Has a court of equity jurisdiction? We are not dealing with a nuisance--all the courts have declared that filling stations and garages are held not to be nuisances per se. MacRae v. Fayetteville, 198 N.C. at page 54, 150 S.E. 810.

In Clinton v. Oil Co., 193 N.C. at page 436, 137 S.E. 183, 184, 55 A. L. R. 252, we said: "We will not discuss the anomaly of plaintiffs bringing an action to enforce its own ordinance, praying injunctive relief; but decide the case on its merits, as the point is not raised by the parties."

The Law of Injunctions (Lewis & Spelling) part § 10, speaking to the subject, says: "The non-interference by injunction to shield persons from the consequences of criminal prosecutions is based on such obvious reasons of public policy that it is strange an impression ever found lodgement in legal minds to the contrary. Nevertheless, the jurisdiction has been often...