Town of Clinton v. Standard Oil Co.

• Decision Date: 23 March 1927
• Docket Number: 209.
• Citation: 137 S.E. 183
• Parties: 193 N.C. 432, 55 A.L.R. 252 v. STANDARD OIL CO. TOWN OF CLINTON et al.
• Court: North Carolina Supreme Court

137 S.E. 183

193 N.C. 432, 55 A.L.R. 252

TOWN OF CLINTON et al. v. STANDARD OIL CO.

No. 209.

Supreme Court of North Carolina

March 23, 1927

Appeal from Superior Court, Sampson County; Grady, Judge.

Action by the Town of Clinton and the Mayor and Commissioners thereof against the Standard Oil Company. Judgment for defendant, and plaintiffs appeal. Affirmed.

Dealing in gasoline and oil is legitimate business, in which all may engage on equal terms.

Ordinance regulating business, without making uniform rule, is unenforceable.

Faircloth & Fisher and Butler & Herring, all of Clinton, for appellants.

Graham & Grady, of Clinton, and Pou & Pou, of Raleigh, for appellee.

CLARKSON J.

This is an action brought by plaintiffs against defendant, seeking injunctive relief, and praying that a permanent restraining order be granted enjoining the defendant from erecting and operating a filling station for storing and retailing kerosene oil, gasoline, and oils, within the fire district or fire limits of the town of Clinton, contrary to an ordinance of the town of Clinton.

The sole question involved is the validity of an ordinance of the town of Clinton, N. C., adopted August 1, 1925, as follows:

"Resolved that no more filling stations for storing and retailing kerosene oil, gasoline and oil be permitted to be erected and maintained within the fire district of the town of Clinton heretofore established and described."

A violation of the ordinance is made punishable by fine, not exceeding $50, or imprisonment according to law (which could not exceed 30 days), in the discretion of the mayor.

It appears from the findings of fact by the court below that there are now six places inside the fire district or fire limits where gasoline is sold. "This court has held that the business of dealing in gasoline and oil is legitimate business in municipalities and not a nuisance per se, so all persons have the right to engage in this business upon equal terms and conditions." Bizzell v. Goldsboro, 192 N.C. at page 355, 135 S.E. 54; Hanes v. Carolina Cadillac Co., 176 N.C. 351, 97 S.E. 162; Sherman v Levingston (Sup.) 128 N.Y.S. 581; Weaver v. Palmer Bros. Co., 270 U.S. 402, 46 S.Ct. 320, 70 L.Ed. 654 decided March 8, 1926.

Blashfield, Cyc. Automobile Law (1927) vol. 3, p. 2675, citing the Hanes Case, supra, says:

"The business of conducting an automobile garage, or a supply station for automobiles, is not generally regarded by the courts as a nuisance per se, but, on the contrary, is considered a legitimate and necessary industry. One court has said that public garages are absolutely necessary to the progress of the community and that each member must suffer the incidental damage and liability to danger which arises from their nonnegligent use."

Plaintiffs argue that the fire district ordinances prescribe the limits of the district, and prohibit further erection or repair of any building within these limits, unless of brick, etc., without a word as to use and operation of wood or frame buildings already within said district. Is the fire district ordinance for this reason void? If not, is the ordinance in question void? Surely it is the policy under such fire district ordinances that, as wood and frame buildings are destroyed or removed, they must be replaced by fireproof buildings, and, as filling and storage stations already in the district pass out, they cannot return. Is not the principle the same in both cases? It is a bad rule that will not work both ways. The vice of plaintiffs' contention is patent. The fire district ordinances regulate. All who build or repair must do so usually out of certain fireproof material, and all come under the regulations. No discrimination or favoritism. These regulations will apply to defendant, if it builds in the limits. The fire limit regulations are sane and sensible fire preventions, and within the police power, and a great protection to the public. C. S. Municipal Corporations, art. 11, mentions them: "Regulation of buildings." The present ordinance does not regulate, but keeps alive, the six gasoline places inside the fire limits where gasoline is sold, and prohibits defendant from carrying on a like legitimate business in the same limits. It discriminates against defendant, and gives a monopoly to those now carrying on the business in the district. It is no regulation; it is a prohibition. "A frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty." Const. N.C. (1868) art. 1,§ 29; Const. 1776, Declaration of Rights, § 21. "Perpetuities and monopolies are contrary to the genius of a free state, and ought not to be allowed." Const. N.C. 1868, art. 1, § 31; Const. 1776, Declaration of Rights, § 23.

In Tugman v. City of Chicago, 78 Ill. at page 409, the court, speaking to the subject, says:

"If one of the citizens of Chicago is permitted to engage in the business of slaughtering animals in a certain locality, an ordinance which would prevent, under a penalty, another from engaging in the same business, would not only be unreasonable, and, for that reason, void, but its direct tendency would be to create a monopoly, which the law will not tolerate. The fact that certain persons were engaged in the business within the district designated in the ordinance at the time of its adoption, gave them no right to monopolize the business, nor

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