Turner v. City of New Bern

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK, C.J.
• Citation: Turner v. City of New Bern, 187 N.C. 541, 122 S.E. 469 (N.C. 1924)
• Decision Date: 09 April 1924
• Docket Number: 165.
• Parties: TURNER v. CITY OF NEW BERN ET AL.

122 S.E. 469

187 N.C. 541

TURNER v. CITY OF NEW BERN ET AL.

No. 165.

Supreme Court of North Carolina

April 9, 1924

Appeal from Superior Court, Craven County; Daniels, Judge.

Action by C. H. Turner against the City of New Bern and another. Judgment for plaintiff, and defendants appeal. Reversed.

An ordinance of the city of New Bern, prohibiting the establishment or maintenance of a lumber yard, or wharf where lumber is piled within a certain residence district bounding on a river, held for the comfort and welfare of the citizens and valid.

The city of New Bern by its board of aldermen, upon a petition signed by about 150 citizens, passed the following ordinance:

"Section 1. Whoever establishes, maintains, operates or conducts a lumber yard or wharf where lumber is piled, stacked, or stored within the territory bounded by Johnson, East Front and Pollock streets and the channel of Neuse river shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined the sum of $10 and each day such business is maintained or conducted, or lumber is piled, stacked or stored in violation hereof, shall constitute a separate and distinct offense. Provided this ordinance shall not go into effect until the 3d day of February, 1924."

The postponement in the operation of the ordinance until February 3, 1924, was made at the instance of the counsel of the plaintiff, who was present and opposed its adoption.

That portion of the territory of the city of New Bern within which lumber yards and loading wharves or docks are prohibited by the provisions of this ordinance lies along the portion of Neuse river, which has been used almost exclusively for residence purposes during the entire existence of the city since its foundation by de Graffenreid. William Attmore says in his diary in 1787, when he was at Neuse river on his first visit, that "almost all the docks, wharves, and shipping were on the Trent river side of the town." Pictures of this water front made in 1865 when the town was occupied by federal troops, show no wharf or dock in use for any purpose on the Neuse river front from the Justice wharf down to the south side of Broad street, exactly as it is today.

It is in evidence that this part of the city facing Neuse river although the city has a water frontage for several miles, has been absolutely open to view for above 100 years, and is the only part of the river fronts of either Neuse or Trent rivers so open. Along this part of the front many of the most prominent and well-known citizens of New Bern have resided doubtless being largely influenced in the location of their homes by this fact. This section of the shore is not only a place of recreation to the people, but visitors enjoy the view and speak of it with admiration.

This is an action to restrain the enforcement of the above ordinance of the city. From the judgment of the court holding the ordinance invalid and continuing the restraining order, the defendants, the city of New Bern and Edward Clark, the mayor, appealed.

E. M. Green and R. A. Nunn, both of New Bern, for appellants.

Whitehurst & Barden, of New Bern, for appellee.

CLARK C.J.

The charter of New Bern (chapter 82, § 27, Private Laws 1899) provides:

"Sec. 27. That the board of aldermen shall have power to make and provide for the execution thereof of such ordinances for the government of the city as it may deem necessary, not inconsistent with the laws of the land. It shall have power by all needful ordinances to secure order, health, quiet and safety within the same and for one mile beyond the city limits. It may require the abatement of all nuisances within the city at the expense of the person causing the same, or of the owner or tenant of the ground whereon the same shall be."

C. S., § 2787, provides:

"In addition to and co-ordinate with the power granted to cities in subchapter I of this chapter, and any acts affecting such cities, all cities shall have the following powers:

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.

16. To regulate, control, and prohibit the keeping and management of houses or any building for the storage of gunpowder and other combustible, explosive, or dangerous materials within the city, and to regulate the keeping and conveying of the same, and to authorize and regulate the laying of pipes and the location and construction of houses, tanks, reservoirs, and pumping stations for the storage of oil and gas.

26. To prevent and abate nuisances, whether on public or private property.

27. To regulate and prohibit the carrying on of any business which may be dangerous or detrimental to health.

28. To condemn and remove any and all buildings in the city limits, or cause them to be removed, at the expense of the owner or owners when dangerous to life, health, or other property, under such just rules and regulations as it may by ordinance establish; and likewise to suppress any and all other nuisances maintained in the city."

In R. C. L. § 140, p. 834, it is said:

"Æsthetic considerations have furnished the motive for the enactment of numerous regulations relating to the maintenance of billboards, etc., * * * æsthetic purposes are not infrequently promoted by restrictions which are supported by other considerations quite within the domain of the police power, and it is the question whether a particular restriction is in fact so supported that affords the only ground for serious contention at the present day; for it is almost unanimously held that a municipality cannot, without compensation, by virtue of the police power alone, limit, for purely æsthetic purposes, the use which a person may make of his property," etc.

This expresses the uniform trend of legislation in regard to municipalities which are coming to be viewed, not only as instrumentalities for the enforcement of law and order, but for the abolition of unsightly places and sounds and for the enhancement, not only of the physical conveniences such as lights, water, and sewerage, but for the preservation and improvement of the surroundings that will be pleasing to the eye and make the city more desirable as a place of residence. In short, the scope of the city government is not restricted to its primitive uses of the protection of life and limb and for the accommodation of business, but can embrace the preservation of the attractions as a place of residence, though a regulation for the latter purpose alone cannot be sustained except upon compensation under the right of eminent domain.

The opinions and decisions of the highest courts of California, Nebraska, and Illinois holding valid ordinances regulating and prohibiting the establishment and maintenance of lumber yards, laundries, brick yards, etc., under the police power, in certain specified districts of a city, have been especially numerous. Also the Supreme Court of the United States has passed upon the validity of an ordinance almost in the exact terms of this before us. Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348, Ann. Cas. 1917B, 927; Little Rock v. Reinman-Wolfort Automobile Livery Co., 107 Ark. 174, 155 S.W. 105, affirmed on writ of error, 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900. Among other cases sustaining ordinances in regard to lumber yards are In re Montgomery, 163 Cal. 457, 125 P. 1070, Ann. Cas. 1914A, 130, and notes; Chicago v. Ripley, 249 Ill. 466, 94 N.E. 931, 34 L. R. A. (N. S.) 1186, Ann. Cas. 1912A, 160. In Ex parte Quong Wo, 161 Cal. 220, 118 P. 714, the ordinance was sustained as to a laundry.

In Little Rock v. Reinman-Wolfort Livery Co., 107 Ark. 174, 155 S.W. 105; Id., 237 U.S. 171, 35 S.Ct. 511, 59 L.Ed. 900, it was a livery stable. In Re McIntosh, 211 N.Y. 265, 105 N.E. 414, L. R. A. 1915D, 603, it was sustained as to a garage; and in Kittenbrink v. Withnell, 91 Neb. 101, 135 N.W. 376, 40 L. R. A. (N. S.) 898 and in Ex Parte Hadacheck, 165 Cal. 416, 132 P. 584, L. R. A. 1916B, 1248, and notes; and in Hadacheck v. Alexander, 169 Cal. 616, 147 P. 259; also in Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348, Ann. Cas. 1917B, 927, an ordinance was sustained prohibiting brickyards to be maintained in certain districts or in certain distances of a residential section. It is worthy of notice that said ordinances were almost in exactly the terms of the one before us.

In Re Montgomery, supra, where the ordinance of Los Angeles prohibiting lumber yards in residential districts was in question, the court said:

"It is shown that certain wooden buildings near petitioner's lumber yard are occupied for business purposes, but the return seeks to show by affidavit and by photographic exhibits that the lumber yard is situated in the midst of a section of the city devoted almost exclusively to residences. In any view of the evidence we cannot say that the city council violated the large discretion vested in it with reference to police measures of the kind here considered, and, unless such abuse of discretion appears, courts are never inclined to nullify ordinances on the ground of their unfairness. * * * While a lumber yard is not per se a nuisance it takes no extended argument to convince one that in a residence district such a place may be a menace to the safety of the property in its

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