State v. Stowe

• Decision Date: 24 June 1925
• Docket Number: 449.
• Citation: 128 S.E. 481
• Parties: 190 N.C. 79, 40 A.L.R. 559 v. STOWE. STATE ET AL.
• Court: North Carolina Supreme Court

128 S.E. 481

190 N.C. 79, 40 A.L.R. 559

STATE ET AL. v. STOWE.

No. 449.

Supreme Court of North Carolina

June 24, 1925

Appeal from Superior Court, Mecklenburg County; Lane, Judge.

E. P Stowe was convicted of keeping cows in certain territory in violation of an ordinance of the city of Charlotte, and he appeals. No error.

Criminal prosecution tried upon a warrant charging the defendant with keeping cows in certain territory prohibited by ordinance of the city of Charlotte. From an adverse verdict and judgment that the defendant pay a fine of $25 and the costs, he appeals.

Clarkson J., dissenting.

Ordinance not per se unreasonable because prohibiting keeping of cows within certain limits of city.

McCall Smith & McCall, of Charlotte, for appellant.

D. G Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

STACY, C.J.

This prosecution was commenced in the recorder's court of the city of Charlotte, and tried de novo on appeal to the superior court of Mecklenburg county. From the latter court the case is brought here to test the validity of a "cow ordinance" of the city of Charlotte, the pertinent provisions of which are as follows:

"Section 1. It shall be unlawful to keep or maintain any cow or cows on any lot within any pen or stable within the corporate limits of the city of Charlotte within a radius of 50 feet of any dwelling," etc. (The remainder of this section deals with the kind of pen or stable to be provided; its validity is conceded and is not in dispute).

"Section 2. That it shall be unlawful to keep any cow or cows on any lot or premises within the following limits of the city of Charlotte, to wit, beginning at a point where the Seaboard Air-Line Railroad crosses the Southern Railway near West Eleventh street, and runs along the line of the Southern Railway to the Dowd road; thence eastwardly from the Dowd road to Mint street, and thence with a straight line from Mint street to where the Columbia branch of the Southern Railroad crosses West Park avenue; thence south with Columbia branch of the Southern Railroad to Tremont avenue; thence along Tremont avenue in an eastward direction to Avondale avenue, continuing a straight line to West Dilworth road; thence north along Dilworth road to Rosa avenue; thence with Rosa avenue to East Morehead avenue near the residence of Lee Folger; thence with a straight line north to the bridge over sugar creek on East Fourth street to Hawthorne lane, thence north along Hawthorne lane continuing a straight line to the Seaboard Air-Line Railroad; thence west along the Seaboard Air-Line Railroad to the beginning." The defendant lives in that territory covered by section 2 of the ordinance, prohibiting the keeping of any cow or cows within the restricted area, and he contends that this portion of the ordinance is void, first, because it is unreasonable; and second, because it creates an unlawful discrimination between the citizens living within the boundaries specified in said section and those who live in other parts of the city, but outside of the limits mentioned therein.

It is conceded that the right to pass regulatory ordinances with respect to keeping horses, cattle, sheep, swine, goats, dogs, and other animals in the city of Charlotte is specifically granted both by charter provision (Priv. Laws 1915, c. 276, § 57, subd. 14), and by the general law. The pertinent provisions of C. S. § 2787, dealing with the general powers of municipal corporations, are as follows:

"6. To supervise, regulate, or suppress, in the interest of public morals, public recreations, amusements and entertainments, and to define, prohibit, abate, or suppress all things detrimental to the health, morals, comfort, safety, convenience, and welfare of the people, and all nuisances and causes thereof.

7. To pass such ordinances as are expedient for maintaining and promoting the peace, good government, and welfare of the city, and the morals and happiness of its citizens, and for the performance of all municipal functions. * * *

10. To make and enforce local police, sanitary, and other regulations."

Under the above grant of powers, we think the ordinance in question is valid. State v. Rice, 158 N.C. 635, 74 S.E. 582, 39 L. R. A. (N. S.) 266; State v. Weddington, 188 N.C. 643, 125 S.E. 257; Lawrence v. Nissen, 173 N.C. 359, 91 S.E. 1036; Ex parte Broussard, 74 Tex. Cr. R. 333, 169 S.W. 660, L. R. A. 1918B, 1091, Ann. Cas. 1917E, 919 and note.

In the exercise of an unquestioned police power much must necessarily be left to the discretion of the municipal authorities, and their acts will not be judicially interfered with unless they are manifestly unreasonable and oppressive. Dillon's Mun. Corp. § 379; McLean v. Arkansas, 211 U.S. 539, 29 S.Ct. 206, 53 L.Ed. 315; Dobbins v. Los Angeles, 195 U.S. 223, 25 S.Ct. 18, 49 L.Ed. 169; State v. Kirkpatrick, 179 N.C. 747, 103 S.E. 65; State v. Shannonhouse, 166 N.C. 241, 80 S.E. 881; State v. Lawing, 164 N.C. 492, 80 S.E. 69, 51 L. R. A. (N. S.) 62; State v. Johnson, 114 N.C. 846, 19 S.E. 599.

The fact that the ordinance in question prohibits the keeping of cows within certain defined limits of the city, and permits them to be kept, under specified restrictions, in the remainder of the corporate territory, is not per se an unreasonable regulation. It is presumed to be otherwise. Ex parte Glass, 49 Tex. Cr. R. 87, 90 S.W. 1108; Soon Hing v. Crowley, 113 U.S. 703, 5 S.Ct. 730, 28 L.Ed. 1145; Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923; In re Linehan, 72 Cal. 114, 13 P. 170; State v. Rice, supra, reported in 39 L. R. A. (N. S.) 266, and note; Darlington v. Ward, 48 S.C. 570, 26 S.E. 906, reported in 38 L. R. A. 326, and note; 1 R. C. L. 1161.

There is nothing appearing on the present record which would warrant us in declaring the ordinance void for unreasonableness, or unlawful discrimination. Lawrence v. Nissen, supra; State v. Hord, 122 N.C. 1092, 29 S.E. 952, 65 Am. St. Rep. 743. The verdict and judgment must be upheld.

No error.

CLARKSON J. (dissenting).

It is with regret that I cannot agree with the majority opinion. I do not think, as a matter of law, that the governing body of the city of Charlotte, consisting of three, a majority two, however patriotic and efficient they may be, under the decisions of this court or any other court in the United States until the present decision, can draw any kind of zigzag or crooked line, in their discretion, in the city, and prohibit the keeping of a cow in the area, and put one of its citizens to work on the roads of the county for keeping a cow. There is no dispute that a valid ordinance can be made to regulate the keeping of a cow. This is done in section 1 of the ordinance, and is applicable to all the citizens of the city alike. The Legislature has given this specific power to regulate. C. S. § 2787, subd. 14; Private Laws, 1915, c. 276, § 57, subsec. 14, consolidated charter of city of Charlotte, same power to regulate as C. S. § 2787. In fact, the charter provides as follows, subsec. 10, supra:

"To provide for inspection of all dairies inside and outside of the city limits, doing business within the city, and to regulate and maintain a standard for milk sold in the city; to provide for and regulate the inspection of all foodstuffs offered for sale in the city of Charlotte, and to impose license fees on all persons engaged in any of said businesses."

The charter even permitting the regulation of dairies in the city, how can it be construed to prohibit keeping a cow? The creature, the city, surely cannot have more power than the creator, the Legislature, that gave the power. The city has no power except that given by the legislative act.

But section 2 of the city ordinance prohibits absolutely the keeping of a cow in the zigzag district. There is no authority in the Constitution or law of this land, in my opinion, for such unreasonable, arbitrary, discriminatory, and autocratic power, and the ordinance, section 2, is unconstitutional and void. In this age drifting towards "nervous particularity" we are forgetting the fundamental rights of a citizen. The evidence in the record is that one man drew the ordinance. All the evidence is that defendant kept his place clean. His neighbors testified that he kept the stables clean, and there was no complaint; nothing offensive. The health officer had no complaint; nothing offensive. The health officer had no complaint to make, and defendant kept the two cows heretofore permitted 14 years, and there was no complaint. He has a big lot. The sooner we call a halt the better, and go back to everyday common sense. From a thorough search, I can find no precedent in this nation that says so useful an animal as a cow can be absolutely prohibited. They can be regulated. In France, Germany, and many other countries, a cow is so useful to a family that they are often kept under the same roof and carefully fed and cared for--the milk being so nourishing and useful as food, especially for children. 1 R. C. L. p. 1160, part of section 104, dealing with this subject, says:

"Under the general grant of legislative power to declare what shall constitute a nuisance, and to prevent, abate and remove the same, some municipalities have enacted ordinances expressly prohibiting the keeping anywhere within the corporate limits, or, where the power has been conferred, within a stated distance beyond, of such animals as, from their known habits or mode of life, are deemed particularly offensive or detrimental to public health. Notorious among these which may thus be said to have been branded, by municipal or legislative declaration, as nuisances per se, may be mentioned the hog, and the jackass. Such enactments, providing for the complete

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