Lawrence v. Nissen

• Decision Date: 11 April 1917
• Docket Number: 356.
• Citation: 91 S.E. 1036,173 N.C. 359
• Parties: LAWRENCE v. NISSEN ET AL.
• Court: North Carolina Supreme Court

91 S.E. 1036

173 N.C. 359

LAWRENCE v. NISSEN ET AL.

No. 356.

Supreme Court of North Carolina

April 11, 1917

Appeal from Superior Court, Forsyth County; Harding, Judge.

Mandamus proceeding by C. S. Lawrence against H. E. Nissen and the Board of Aldermen of Winston-Salem. From a judgment dismissing the proceedings, plaintiff appeals. Affirmed.

Walker and Allen, JJ., dissenting.

Pay hospital may become nuisance per se because of its location or by reason of the manner in which it is conducted.

Hastings Stephenson & Whicker, of Winston-Salem, for appellant.

Manly Hendren & Womble, of Winston-Salem, for appellees.

BROWN J.

The object of this proceeding is to compel the defendants to issue to plaintiff a building permit for the erection of a private hospital upon a certain lot within the corporate limits of the city of Winston-Salem. The court finds that the building is to be erected on a lot belonging to plaintiff and used as a private hospital to be conducted for pay, that it is for surgical cases only, and that patients suffering with contagious or infectious diseases will not be admitted. The west side of the building will be 6 feet from the property line on west side, and 12 feet from the east side of the residence occupied by Thomas Patterson. The charter of the city confers power:

"To define and condemn nuisances. * * * To grant permits for the construction of buildings and other structures, and to prohibit the construction of any building or structure which, in the judgment of the board of aldermen, may be a nuisance or of injury to adjacent property or to the general public." "To regulate and control the character of buildings, which shall be constructed or permitted to be, or remain, in any part of the City of Winston-Salem, with a right to declare the same a nuisance or unsafe, and cause their demolition or removal."

Pursuant to this grant of power, the board of aldermen enacted an ordinance as follows:

"Be it ordained that the construction, operation or maintenance of a hospital, or place or institution of like character where sick or diseased persons are treated or surgical operations performed, for pay, within the corporate limits of the city of Winston-Salem, and within one hundred feet of a building or house used or occupied as a residence, is hereby declared to be a nuisance, or injury to adjacent property, and to the general public, and the same is hereby prohibited."

It is contended by plaintiff that the ordinance is void: (1) Because it is unreasonable and the municipal authorities cannot declare that to be nuisance which is not so at common law or made so by statute. (2) Because the ordinance is discriminative. Courts are slow to declare municipal ordinances invalid, especially where enacted in pursuance of valid legislative authority. There is a strong presumption in favor of their reasonableness. Judges may not agree with the municipal authorities always in thinking an ordinance wise, but such representatives of the people may be trusted to understand their own requirements better than the courts. It is not necessary that we hold that a hospital is per se a nuisance. We are not asked by adjacent residents to restrain from building it upon that ground. We are asked to compel defendants to issue a permit to erect the hospital upon the ground that the ordinance prohibiting it is unreasonable and beyond the power of the municipality to enact.

The enactment of such an ordinance is plainly within the powers conferred by the Legislature, for the aldermen are vested with power, not only to grant building permits, but to prohibit the construction of buildings or structures that may be a nuisance or injurious to adjacent property. Having the authority to enact the ordinance, the reasonableness of it is not a matter for us. State v. Rice, 158 N.C. 640, 74 S.E. 582, 39 L. R. A. (N. S.) 266.

The power of a court to declare an ordinance unreasonable, and therefore void, is practically restricted to cases in which the Legislature has enacted nothing on the subject-matter of the ordinance, and consequently to cases in which the ordinance was passed under the supposed power of the corporation merely. Coal-Float v. Jeffersonville, 112 Ind. 15, 19, 13 N.E. 115. This distinction has been noted and observed in this state. State v. Ray, 131 N.C. 814, 42 S.E. 960, 60 L. R. A. 634, 92 Am. St. Rep. 795; State v. Thomas, 118 N.C. 1221, 1225, 1226, 24 S.E. 535. Says Mr. McQuillin (2 Mun. Corp. §§ 724, 725):

"In brief, if passed by virtue of express power, an ordinance cannot be set aside by a court for mere unreasonableness, since questions as to the wisdom and expediency of a regulation rest alone with the law-making power."

Neither is it necessary that we should find that conditions actually exist that require the enactment of the ordinance. It is sufficient if a state of facts could exist which would justify it. As said by the Supreme Court of the United States in the case of Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77:

"For our purposes we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute now under consideration was passed. For us the question is one of power, not of expediency. If no state of circumstances could exist to justify such a statute, then we may declare this one void, because in excess of the legislative power of the state; but if it could, we must presume it did. Of the propriety of legislative interference within the scope of legislative power, the Legislature is the exclusive judge."

This ordinance is preventive in character and intended to protect the comfort, health, and safety of the citizens. As said in Shelby v. Power Co., 155 N.C. 201, 71 S.E. 220, 35 L. R. A. (N. S.) 488, Ann. Cas. 1912C, 179:

"Such legislation is preventive, and to limit it to cases where actual injury is shown to have occurred would be to deprive it of its most effective force. To be of value such laws must be able to restrain acts which have a tendency to produce public injury." A hospital may not be a nuisance per se, but it may become such because of its location, or by reason of the manner in which it is conducted. Hospital v. Bontjes, 207 Ill. 553, 69 N.E. 748, 64 L. R. A. 215, 39 Ann. Cas. 126, notes. Discussing this subject, the Supreme

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