State v. Brown

• Decision Date: 08 April 1959
• Docket Number: No. 149,149
• Court: North Carolina Supreme Court
• Parties: STATE, v. Sam T. BROWN. STATE v. Wesley C. NARRON.

Page 74

108 S.E.2d 74

250 N.C. 54

STATE, v. Sam T. BROWN.

STATE v. Wesley C. NARRON.

No. 149

Supreme Court of North Carolina.

April 8, 1959

Malcolm B. Seawell, Atty. Gen., Claude L. Love, Asst. Atty. Gen., and Bernard A. Harrell, Staff Atty., Raleigh, for the State.

J. R. Davis, Kings Mountain, A. A. Powell, Shelby, for defendant.

DENNY, Justice.

G.S. § 14-399, which the defendants are charged with violating, provides:

'It is unlawful for any person, firm, organization or private corporation, or for the governing body, agents or employees of any municipal corporation, to place or leave or cause to be placed or left, temporarily or permanently, any trash, refuse, garbage, scrapped automobile, truck or part thereof within one hundred and fifty yards of a hard-surfaced highway where the highway is outside of an incorporated town, unless the trash, refuse, garbage, scrapped automobile, truck or part thereof, is concealed from the view of persons on the highway.

'This section does not apply to domestic trash or garbage placed for removal, nor to junk yards which are the property of bona fide junk dealers and which are properly screened or fenced from the view of persons on the highway. * * *'

The remaining portions of the statute are not relevant here.

The defendants are junk yard operators, engaged in the business of buying scrapped or wrecked automobiles, salvaging the parts therefrom and selling them to the general public.

The real question for determination is whether or not the provisions of G.S. § 14-399 are in conflict with and in violation of rights guaranteed to these defendants by Article I, sections 1 and 17, of the Constitution of North Carolina and the Fourteenth Amendment to the Constitution of the United States.

The precise question posed on this appeal has not been decided by this Court. The State contends, however, that the cases of Hinshaw v. McIver, 244 N.C. 256, 93 S.E.2d 90, and Ornoff v. Durham, 221 N.C. 457, 20 S.E.2d 380, are determinative of the question.

In the Hinshaw case the plaintiff sought to obtain an order compelling the defendant, as tax collector of the City of Burlington, to issue him a license to engage in the business of a junk dealer within the City of Burlington. The City of Burlington was not made a party to the action. The plaintiff's license had been revoked because of his failure to comply with ordinances regulating the use and operation by junk dealers of junk yards, requiring, among other things, that the yard be enclosed by a solid fence not less than eight feet high; that no junk or material be kept on the outside of the fence; that gates, when not in use, be kept closed; and that no placards be affixed or displayed on the fence. This Court in its opinion said [244 N.C. 256, 93 S.E.2d 92]: 'The power to regulate the operation of junk yards within its borders is within the police power of the city.' This is true, but such regulation would have to be pursuant to a duly authorized and valid ordinance. All that the Hinshaw case decided was that 'the Court would not undertake to test the validity of ordinances and orders of the City of Burlington in an action to which the City was not a party.'

In Ornoff v. Durham, supra [221 N.C. 457, 20 S.E.2d 382], the plaintiff instituted an action against the City of Durham and its tax collector to obtain relief by mandamus wherein the plaintiff sought a decree directing the defendants to issue to him a license to conduct his junk business. His license had been withheld under a city zoning ordinance which prohibited the operation of a junk yard in certain areas of the city. This Court said: 'If the junk business of plaintiff existed at the place alleged at the time of the passage of the ordinance, it may, according to the plain provision of the ordinance continue, if, on the other hand, it did not so exist at the time of its passage it may be prohibited.'

We do not construe either of the above cases to have adjudicated the question involved on this appeal.

The State raises this inquiry: If a municipality may regulate junk yards in the exercise of its police power, how can it be said that an act of the General Assembly intended to accomplish the same purpose is unconstitutional? The answer to this inquiry is that neither the General Assembly nor a municipality may exercise the police power unless its exercise relates to the public health, safety, morals, or general welfare. State v. Harris, 216 N.C. 746, 6 S.E.2d 854, 128 A.L.R. 658; State v. Lockey, 198 N.C. 551, 152 S.E. 693; State v. Whitlock, 149 N.C. 542, 63 S.E. 123, 129 Am.St. Rep. 670; Meyer v. State of Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042, 29 A.L.R. 1446; Liggett Co. v. Baldridge, 278 U.S. 105, 49 S.Ct. 57, 59, 73 L.Ed. 204; 11 Am.Jur., Constitutional Law, section 303, page 1075 et seq.

In the last cited case, the Supreme Court of the United States, speaking through Justice Sutherland, said: 'The police power may be exerted in the from of state legislation where otherwise the effect may be to invade rights guaranteed by the Fourteenth Amendment only when such legislation bears a real and substantial relation to the public health, safety, morals, or some other phase of the general welfare.'

The case of Commonwealth v. Christopher, 184 Pa.Super. 205, 132 A.2d 714, 716, states: 'The business of operating a junk yard is a legitimate enterprise which, while offending the aesthetic taste, does not constitute a dangerous business or one known to be inherently injurious or harmful to the public. By itself, it does not adversely affect the public peace or safety, nor can it be designated as a fire or health hazard.'

In the absence of a zoning law or restriction imposed by deed, a purchaser of real estate has the right to use it for any lawful purpose so long as he does not create a nuisance affecting health, safety, or morals. Menger v. Pass, 367 Pa. 432, 80 A.2d 702, 24 A.L.R.2d 562. We have found no authority to support the view that a junk yard is a nuisance per se. Vermont Salvage Corp. v. Village of St. Johnsbury, 113 Vt. 341, 34 A.2d 188.

In City of New Orleans v. Southern Auto Wreckers, 193 La. 895, 192 So. 523, 527, the defendant was convicted of the violation of a city ordinance which required, among other things, that all junk yards should be enclosed with a substantial feather-edged board fence, not less than seven feet high. The admitted purpose of the ordinance was to keep the sidewalks and streets free from obstructions that might make them unsafe. Defendant's junk yard was enclosed with a mesh wire fence, some seven feet high, and it was conceded that such fence accomplished the purpose of the ordinance. The provision in the ordinance requiring a fence was not attacked, but the part requiring it to be a feather-edged board fence was attacked as being unconstitutional, and the Court so held. The Court said: 'Dealing in junk is a legitimate and harmless business. Junk yards are not necessarily nuisances. They do not affect the public health, nor do they offend against public morals. Individuals have the...