State v. Johnson

• Decision Date: 24 April 1894
• Citation: 19 S.E. 599,114 N.C. 846
• Parties: STATE v. JOHNSON.
• Court: North Carolina Supreme Court

19 S.E. 599

114 N.C. 846

STATE v. JOHNSON.

Supreme Court of North Carolina

April 24, 1894

Appeal from superior court, Forsyth county; Boykin, Judge.

F. R Johnson, convicted of violating a fire ordinance of the city of Winston. Appeals. Affirmed.

Criminal action tried before Boykin, J., at spring term, 1893, of Forsyth superior court, on appeal from the judgment of the mayor of the city of Winston. A jury trial was waived, and the facts agreed are as follows: Defendant was occupying and controlling a two-story wooden frame house, with brick basement, situated in the city of Winston, within 1,000 feet of the Court square; and about the 9th of December, 1892, the house was partially destroyed by fire. That on the 6th of January, 1893, the defendant made a contract with certain builders to have the house repaired at the cost of $490. The original cost of the building, including brick basement, was about $2,000. Shortly after work began under said contract the defendant was arrested, tried and convicted before the mayor, and on appeal to the superior court the case was dismissed, on motion to quash the warrant. About the 17th March, 1893, the defendant, without the consent of the board of aldermen, placed said contractors at work again on the building; and he was again arrested, and tried before the mayor, and fined, and he appealed from the judgment to the superior court. The following ordinances relating to this matter were adopted by said board: "That for the protection of the city against fire the following ordinance be enacted under chapter 5, as sections 36 and 37 of said chapter 5 of the ordinances of the city: Sec. 36. That the fire limit shall be the territory from the center of Court square extending one thousand feet in each direction; that it shall be unlawful without the consent of the board for any person or corporation to erect, alter or repair any wooden building within said fire limit, and any person or corporation violating the same shall be fined fifty dollars that for each day such person or corporation continues to erect, alter or repair such building, it shall constitute a separate violation of the ordinance," etc. "Sec 37. That any person who shall assist in constructing or repairing any building, prohibited in above section, shall be fined," etc. There were other sections of the ordinances, prohibiting the erection of wooden buildings in the business portion of the city without the written consent of the aldermen, etc., and the fire limit--1,000 feet from the Court square--was established, etc. The defendant appealed from the judgment.

An ordinance prescribing a fire limit, and forbidding any person to build, alter, or repair a wooden building therein, without the consent of the board of aldermen, is not unreasonable, as applied to compel the rebuilding of a partly burned wooden roof with some safer material.

Watson & Buxton, for appellant.

The Attorney General and Glenn & Manly, for the State.

AVERY J.

Municipal corporations are the creatures of the legislature, and their powers may be curtailed, enlarged, or withdrawn at the will of the creator, whose control over them is limited only by the restriction that no statute will be enforced which impairs the obligation of a contract, interferes with vested rights, or is in conflict with any provision of the organic law of the state or nation. It is too well settled to recapitulate, or even justify discussion, that towns,--certainly, by virtue of an express grant of authority to do so, and, according to most authorities, by implication arising out of the general welfare clause,--if there is no general law to the contrary, are empowered to prescribe a fire limit, and forbid the erection of wooden buildings within such bounds as they may, by ordinance, prescribe. 15 Am. & Eng. Enc. Law, 1170; 1 Dill. Mun. Corp. § 405; Horr...