Town of Clinton v. Ross
| Decision Date | 20 November 1946 |
| Docket Number | 381 |
| Citation | 40 S.E.2d 593,226 N.C. 682 |
| Parties | TOWN OF CLINTON v. ROSS. |
| Court | North Carolina Supreme Court |
Civil action to restrain the violation of a town ordinance.
The Town of Clinton is located in a populous area of North Carolina and in the tobacco belt. The courthouse square is the hub or center around which the town is built. Eight highways enter or pass through this square. The streets are narrow, and on busy days traffic jams are the rule rather than the exception.
In 1945 the people of the town, with the full cooperation of the governing authorities, sought and obtained a tobacco sales market. Plans were made by local citizens to operate three warehouses: one, the Big Sampson Warehouse, was to be located just outside the city limits; one, to be operated by one Taft M. Bass and associates, to be located on McKoy Street; and one by defendant and his associates to be located on Elizabeth Street. Defendant, on 1 June 1945, applied for and procured a permit to build a warehouse on Elizabeth Street.
When it became certain that a tobacco sales market would be located in Clinton, the Town Board, on 5 June 1945, enacted an ordinance which makes it unlawful to sell or offer to sell buy or offer to buy, leaf to bacco, or to establish, operate or attempt to operate a warehouse for the sale of leaf tobacco (1) within the fire district, (2) in certain designated areas, including Elizabeth Street, and (3) anywhere in the Town of Clinton unless the 'operator of such warehouse shall provide immediately adjacent thereto a parking lot or lots containing a minimum of 100,000 square feet of free parking space for the use of the patrons of said warehouse.'
The ordinance recites that it is enacted 'in order to provide for the orderly marketing of tobacco on said market, to protect the citizens of said town from the increased traffic and fire hazards by reason of establishment of said market.'
Shortly thereafter a new board took office and the board, as newly constituted, enacted an amendment thereto which postponed the effective date thereof until December 1, 1945. The new board took this action for the reason that the ordinance precluded the operation of two of the three proposed warehouses and tended to destroy competition. The defendant and the owners of the Bass warehouse were notified that the ordinance would be enforced on and after its delayed effective date.
Defendant having obtained a permit therefor on 1 June 1945, erected a warehouse on property owned by him on Elizabeth Street and operated as a tobacco sales warehouse during the 1945 season. The building was actually erected after the adoption of the ordinance and with knowledge that it was being erected within a proscribed area.
During the 1945 tobacco season the streets in close proximity to defendant's warehouse were completely blocked on various occasions by the traffic thereon, composed largely of vehicles going to and from said warehouse. There were, however, other available streets which might be used by traffic other than that moving to the warehouse of the defendant.
Plaintiff owns a large tract of land covering about one block, adjoining the warehouse property of the defendant. It operates on this property a municipal cotton platform and also a vegetable and fruit auction market. The vegetable and fruit market produces more traffic than does the defendant's warehouse, and the streets in close proximity thereto have on occasions been completely blocked by vehicular traffic going to and from the fruit market, and the traffic congestion resulting from the operation of said vegetable and fruit market has been considerably greater than that resulting from the operation of defendant's tobacco warehouse. The traffic going to and from plaintiff's cotton market has likewise tended to congest these streets but not to the extent they have been congested by traffic going to and from the vegetable and fruit market of plaintiff and the tobacco warehouse of defendant. The traffic congestion on the streets near plaintiff's property and that of the defendant at times rendered it practically impossible for firefighting vehicles to pass through. The ordinance was adopted for the primary purpose of attempting to relieve the resulting traffic and fire hazard.
The plaintiff is seeking to purchase a tract of land elsewhere and intends to remove its vegetable and fruit market and its cotton platform from its present location to the newly-acquired property.
The Town of Clinton is located in a populous rural community for which it is the market place, and its streets are unusually narrow. As a result the town is confronted with serious traffic problems.
In the summer of 1946 the defendant began to make preparation and advertised his purpsoe to reopen his warehouse for the sale of tobacco during the 1946 sales season. Thereupon the plaintiff instituted this action and obtained a temporary restraining order. When the rule to show cause came on to be heard, the court, upon consideration of the evidence offered, found the facts and upon the facts found entered judgment continuing the temporary restraining order to the hearing. The defendant duly entered his exceptions to the findings of fact and to the judgment entered, and appealed.
J. B. Williams, of Clinton, and Varser, McIntyre & Henry, of Lumberton, for appellant.
H. H. Hubbard and Jeff D. Johnson, Jr., both of Clinton, for appellee.
That defendant's warehouse is so built that by the erection of partitions it can be used for wholesale business establishments may be a fact. Even so, there is nothing in the record to sustain the finding that he erected the building for a dual purpose.
When he obtained a permit to erect a warehouse the designation of Clinton as a tobacco sales market was uppermost in the minds of its people. They, at that time, had cause to feel assured their efforts would be successful. To say that defendant did not have in mind a warehouse to be used for the sale of leaf tobacco would seem to beg the question.
G.S. s 160-179 is not a statute of general application. It is a part of our Zoning Act, G.S. Chap. 160, Art. 14, and authorizes a suit in equity to restrain the erection, maintenance, or repair of any building, structure, or land used "In violation of this article or of any ordinance or other regulation made under authority conferred thereby." It has no application here.
Plaintiff does not plead the zoning ordinance of the town adopted in April 1946. It pleads the 1945 ordinance, as amended, and bottoms its claim to injunctive relief in its complaint and in its evidence squarely on the contention that defendant's intended violation of that ordinance constitutes a threat to the welfare, peace, and safety of the citizens of the town.
In any event, on the facts here presented, the zoning ordinance forms no basis for equitable relief. Defendant's warehouse is in an industrial district as defined by it. Tobacco warehouses are not excepted, unless by the reference in Sec. 19 thereof which provides:
"This ordinance shall not be construed as amending or repealing in any respect the tobacco warehouse ordinance enacted by the Board of Commissioners on the 5th day of June 1945, as amended."
If we concede that this provision is sufficient to add tobacco warehouses to the list of businesses which may not be conducted in said district "until and unless the location of such use shall have been approved by the Board of Commissioners," a provision of doubtful validity, Sec 7, then we are met by Sec. 8 of the ordinance which relates to non-conforming uses and provides that:
"The lawful use of a building or premises existing at the time of the adoption of this ordinance may be continued although such use does not conform with the provisions of this ordinance. * * *"
The charter of plaintiff municipality, Chap. 115, Priv.Laws, Ex.Sess., 1913, does not confer upon it the power to prohibit the maintenance of warehouses of the type here involved. Section 47, subd. 24, of said Act confers authority "To establish markets and market places, and provide for the government and regulation thereof." However, the power to regulate thus conferred relates to markets, such as the vegetable and fruit market, established and maintained by the town.
The Act likewise confers authority to abate nuisances and to regulate certain specified businesses and trades; to control the sale of named commodities; and to direct the location of slaughter houses and certain other buildings. Neither tobacco sales warehouses nor the sale of leaf tobacco is included. Inclusio unius est exclusio alterius.
Defendant's warehouse is not located in the fire district of the town. Hence whatever power it may have to regulate or prohibit any building within that area or to enjoin the continued use thereof does not pertain to the business, the operation of which it now seeks to enjoin.
So then, there is no special authority conferred upon the plaintiff by its charter which may be construed to vest power in it to resort to equity for aid in enforcing its ordinances.
Its anomalous position in seeking the aid of equity in the enforcement of its own ordinance can be maintained, if at all, only under recognized general principles controlling the exercise of equity jurisdiction. On this question the plaintiff comes into court as any other litigant with no distinction drawn in its favor. The inquiry is, as it is in cases of an individual seeking the aid of "the strong arm of equity," whether the facts presented show the need of the interference of equity for the protection of rights cognizable by equity. 28 A.J. 342; Annotations, 40 A.L.R. 1147, 1149; 91 A.L.R. 316.
The general welfare is the prime...
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