McKinney v. City of High Point

Decision Date30 January 1953
Docket NumberNo. 667,667
Citation74 S.E.2d 440,237 N.C. 66
CourtNorth Carolina Supreme Court

Grover H. Jones, High Point, and Brooks, McLendon, Brim & Holderness, Greensboro, for defendant-appellant.

James B. Lovelace, High Point and Frazier & Frazier, Greensboro, for plaintiff-appellees.

PARKER, Justice.

On the demurrer we take the case as made by the amended complaint. The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of factual averments well stated and such relevant inferences as may be deduced therefrom, but it does not admit any legal inferences or conclusions of law asserted by the pleader. We are required on a demurrer to construe the complaint liberally with a view to substantial justice between the parties, and every reasonable intendment is to be made in favor of the pleader. G.S. § 1-151; Barber v. Wooten, 234 N.C. 107, 66 S.E.2d 690; Cathey v. Southeastern Construction Company, 218 N.C. 525, 11 S.E.2d 571; Joyner v. P. L. Woodard & Co., 201 N.C. 315, 160 S.E. 288.

Numerous courts, including the United States Supreme Court, have sustained zoning ordinances and laws for the purpose of regulating and restricting the character, location and use of buildings in cities, entirely on the substantial grounds that they are reasonably necessary for the purpose of protecting and promoting the public health, safety and general welfare.

'The stabilization, conservation and protection of uses and values of land and buildings * * * constitute fundamental purposes of zoning, reasonably related to the public welfare. ' Not the least of its (zoning) purposes is to stabilize property uses.' ' McQuillin, Mun.Corp., 3rd Ed., Vol. 8, Zoning, Sec. 25.25, 'Zoning ordinances involve a reciprocity of benefit as well as of restraint. * * * The theory of zoning is one of balancing public against private interests. ' Ibid., Sec. 25.40.

Vast property rights are affected by zoning regulations. Metzembaum states in his 'The Law of Zoning,' p. 136 (1930) that a pamphlet to be issued in 1930 by the United States Government will show almost forty million people in the United States living within zoned municipalities. Many millions have been added since. He further states that in 1919 England made zoning mandatory upon every city which, on January 1, 1923 would have twenty thousand or more people. It is interesting to note that zoning of certain areas, protection of streets against encroachments and building height limitations were not unknown to the Roman Law. Thomas Adams, 'Outline of Town and City Planning' (1935) Ch. 1, p. 53. 'Use zoning is almost coeval with the English Colonization of the United States. In the first year of the first royal governor of the province of Massachusetts Bay Colony, in the reign of William and Mary, a law was passed forbidding certain noxious of 'nuisance' industries from carrying on any business in any district not specifically designated for such use by the selectmen of the town jointly with two or more justices of the peace * * *. This law applied to Boston, Salem and Charleston, and to any other market town in the province. * * * ' This act, which is still law, is undoubtedly,' says Thomas Adams 'the first example of 'use zoning' in America' '. McQuillin, Mun.Corp., 3rd Ed., Vo1. 8, Article Zoning, Sec. 25.03, Note 15.

On August 1, 1950 defendant authorized the purchase of property for the location of an elevated water tank in a section it had zoned as a 'Residence 'A' District'; on August 15, 1950 it let the contract for its construction; and the work was completed in August 1951. In the Code of the city the erection of a municipal utility in any district of the city is provided for, but only after referral to, and report by the Board of Adjustments, and according to the method set forth in the Code. The city did not follow this procedure. The question arises whether the zoning regulations of the defendant applied to the erection, maintenance and operation of an elevated water tank such as this is, which was deemed necessary by the defendant having authority over a given field of public administration. Counsel in their briefs have cited us no authority on this question. After a diligent search in our Reports we are unable to find a case that has decided it. It appears to be a question of first impression with us. The plaintiffs allege in their amended complaint that the erection of the tank by the defendant was wrongful and unlawful. That allegation is a conclusion of law which is not admitted by the demurrer. Cathey v. Southeastern Construction Company, supra.

The defendant contends that the construction and maintenance of this tank was a governmental function on its part, and that the rule of non-liability in such cases applies. The plaintiffs contend that the construction and maintenance of the tank was a corporate function, and that the defendant is liable for any negligence of its agents in performing duties of a corporate character in the management of its property.

Mr. Justice Denny speaking for the court in a lucid opinion in Rhodes v. City of Asheville, 230 N.C. 134, at pages 137 and 138, 52 S.E.2d 371, at page 374, says: 'Since this Court handed down the decision in 1903, in the case of Fawcett v. Mt. Airy, 134 N.C. 125, 45 S.E. 1029, 63 L.R.A. 870, the construction, maintenance and operation of a water and light plant by a municipality, has been held to be a necessary governmental expense. Even so, it has been uniformly held that, except as to certain exempted services such as furnishing water to extinguish fires, Klassette v. Liggett Drug Co., 227 N.C. 353, 42 S.E.2d 411; Mabe v. City of Winston-Salem, 190 N.C. 486, 130 S.E. 169; Mack v. Charlotte City Water-Works, 181 N.C. 383, 107 S.E 244; G.S. § 160-225, a municipality in operating a water or light plant or other business function does so in its corporate or proprietary capacity. Fisher v. City of New Bern, 140 N.C. 506, 53 S.E. 342, 5 L.R.A., N.S., 542; Harrington v. Com'rs of Town of Wadesboro, 153 N.C. 437, 69 S.E. 261 ; Terrell v. City of Washington, 158 N.C. 281, 73 S.E. 888; Woodie v. Town of North Wilkesboro, 159 N.C. 353, 74 S.E. 924. * * * We have cited the abo ve decisions to show that a municipality may in certain instances, be liable in tort even though it may be engaged in a governmental function; and likewise ma y be held liable when engaged in a proprietary function which is considered suc h a public necessity that its activity is held to be for a public purpose and a necessary governmental expense.'

The following cases fall on the governmental side of municipal power: Price v. Board of Trustees, etc., 172 N.C. 84, 89 S.E. 1066, L.R.A.1917A, 992; Parks-Belk Company v. City of Concord, 194 N.C. 134, 138 S.E. 599; James v. City of Charlotte, 183 N.C. 630, 112 S.E. 423.

Now in respect to the question raised above. 'Municipalities are sometimes regarded as subject to the prohibitions or restrictions of their own zoning ordinances, in so far as the property is being used in the performance of a proprietary or corporate function, as distinguished from a governmental function, the use of property for which is ordinarily held not to be within the prohibitions or restrictions of a zoning ordinance.' 58 Am.Jur., Zoning, Sec. 120. 'The need of a public building in a certain location ought to be determined by the federal, state, or municipal authority, and its determination on the question of necessary or desirable location cannot be interfered with by a local zoning ordinance. ' Bassett, 'Zoning' (1940) Public Bldgs., p. 31.

In Sunny Slope Water Company v. City of Pasadena, 1934, 1 Cal.2d 87, 33 P.2d 672, it was held that a city engaged in the distribution and sale of water was not bound by its zoning ordinances in a highly restricted residential area as regarding its right to operate wells and water pumps in the area. The distinction between governmental and proprietary functions was not raised.

In Decatur Park Dist. v. Becker, 1938, 368 I11. 442, 14 N.E.2d 490, it was decided that a park district organized by the legislature to establish parks and playgrounds was entitled to condemn certain lands for such purposes under its power of eminent domain, notwithstanding the fact that a city zoning ordinance classified such land as 'A' residence property.

In State ex rel. Helsel v. Board of County Commissioners, Ohio Com.Pl.1947, 79 N.E.2d 698, 705, affirmed 1948, 83 Ohio App. 388, 78 N.E.2d 694, it is said 'Both principle and authority support the view that restrictions in zoning ordinances of municipalities are ineffective to prevent the use of land by a county for the public purpose for which it has been appropriated. ' See also Tim v. City of Long Branch, 135 N.J.L. 549, 53 A.2d 164, 171 A.L.R. 320, and Annotation, and Carroll v. Board of Adjustment of Jersey City, 1951, 15 N.J. Super. 363, 83 A.2d 448.

A different conclusion was reached in the following three cases: Taber v. City of Benton Harbor, 1937, 280 Mich. 522, 274 N. W. 324, holds that a municipality was held bound by its own zoning ordinance concerning the height of buildings and could not erect a water tank tower in violation thereof, where such an act was proprietary in nature. In O'Brien v. Town of Greenburgh, 1933, 239 App.Div. 555, 268 N.Y.S. 173, affirmed without opinion in, 1935, 266 N.Y. 582, 195 N.E. 210, a municipality was enjoined from erecting a garbage disposal plant in a restricted district in which a zoning ordinance adopted by the town provided that no disposal plant would be permitted, except upon consent of a certain percentage of the property owners. The court said that such an act is a corporate act as distinguished from a governmental function and in the former capacity the town is bound equally with all other persons by the terms of its own ordinance. In Jefferson County v. City of Birmingham, 1951, 256 Ala. 436, 55 So.2d 196...

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