Kass v. . Hedgpeth

Devin, J. The findings of fact made by the judge below were in accord with the evidence presented and we are not disposed to disturb them, but we do not reach the conclusion therefrom that the restraining order should have been continued to the hearing. It was properly found that neither the original zoning ordinance, which did not include defendant’s land within the area prohibited for business structures, nor the amendment thereto which purported to do so, was adopted in accordance with the enabling provisions of G. S., 160-175 and 160-176, and that these ordinances were therefore invalid and ineffective as zoning regulations. Eldridge v. Mangum, 216 N. C., 532, 5 S. E. (2d), 721; Lee v. Board of Adjustment, ante, 107. It also appeared that subsequent to the adoption of the amendment the Board of Commissioners had authorized the issuance of a building permit for the construction in question, and had thereafter reaffirmed its action by unanimous vote of the board. It was also found that defendant’s warehouse at this place was not being, and had not been, conducted so as to create a nuisance; nor was the evidence sufficient to have justified a finding that it would likely become so. Tobacco warehouses under the present auction system are essential to the orderly marketing of one of the State’s most valuable and important agricultural products, and the structures where the growers and the buyers of these products are brought together at the invitation and under the supervision of the warehousemen, may not be held to be nuisances, in the absence of finding that their operation would injuriously affect the health, safety, morals, good order or general welfare of the community, or infringe upon the property rights of individual complainants. Since there was no valid ordinance prohibiting the erection of this addition to defendant’s warehouse, but on the contrary an affirmative authorization by the Board of a building permit therefor, we perceive no sufficient reason for denying the defendant’s right to proceed with his undertaking. *408 The case of Shuford v. Waynesville, 214 N. C., 135, 198 S. E., 585, is cited as authority for the position that notwithstanding the failure of the ordinance and amendment to comply with the zoning statutes, they should be upheld as having been adopted in the valid exercise of the police power conferred by the General Assembly upon municipalities. G. S., 160-200. But that case involved the power of the Town of 'Waynesville to prohibit the erection of a.gasoline filling station in a restricted area, and it was held that, while it was within the police power conferred by statute to regulate gasoline stations, the ordinance must operate uniformly and not be unreasonable or arbitrary. See cases cited by Justice Barnhill in the opinion in that case. But it must be borne in mind that municipal corporations have no inherent police powers and can exercise only those conferred by statute. S. v. Dannenberg, 150 N. C., 799, 63 S. E., 946. Such powers as are conferred are subject to strict construction. Rhodes, Inc., v. Raleigh, 217 N. C., 627, 9 S. E. (2d), 389. Here, on the facts shown, it does not appear that either by the general statutes or by its charter was power conferred upon the City of Lumberton to prohibit the erection of the addition to defendant’s warehouse in its present location, in the absence of zoning regulations ordained in conformity with the statutes. Lee v. Board of Adjustment, supra. On the record before us we conclude that there was error in continuing the restraining order to the hearing. Error.