City of Fayetteville v. Spur Distributing Co.

Seawell, J. The defendant did not argue, either in the brief or in the oral argument, the constitutional questions raised in its answer relating to the propriety of the exercise of the police power in the regulation of its business. Inasmuch, however, as this question may have some bearing upon other matters involved, we may say that the power of a municipality to make proper ordinances for the protection of the health, safety, and welfare of the people is derived from chapter 56 of the Consolidated Statutes, relating to municipal corporations, and C. S., secs. 2673, 2676, and 2776 (r), (Michie’s Code), may be considered as pertinent. In this instance the existence of a danger to the public, enhanced by the proposed location of the storage tank in a congested area within the fire district in the business part of the city, would sustain a finding, at least for the purpose of passing on the order to show cause, that the business is affected with a public interest justifying resort to the police power in its regulation, and that the restrictions *600 provided in the statute have a proper relation to the evil sought to be remedied. Nebbia v. New York, 291 U. S., 502, 78 L. Ed., 940; Shuford v. Waynesville, 214 N. C., 135, 198 S. E., 585. The defendant bases its argument for reversal upon three propositions: First, that a municipal corporation has no power to invoke the extraordinary remedy of injunction to prevent a threatened violation of one of its ordinances; second, that the court committed error in striking from defendant’s answer the second paragraph relating to use and maintenance of similar stations and equipment in other North Carolina cities; and, third, that the court cannot enjoin an alleged public nuisance when the apprehended injury is at most contingent and speculative and the condition complained of is not a nuisance per se. For a more convenient discussion we take up first the order striking out part of defendant’s answer. Such an order, made in apt time, is a matter of right, and at other times it is within the discretion of the court. Patterson v. R. R., 214 N. C., 38, 43, 198 S. E., 364. In both instances it is subject to review, of course, since the power of the court must be exercised in accordance with legal principles and established procedure. In the particular case we do not regard the matters alleged in the stricken paragraph as being relevant to the development of the case, since they refer only to what has been permitted, or what has been done in other cities in the State, and no inference could be drawn from such fact other than that which might appeal to the tolerance of officials, rather than to the enforcement of law. At any rate, we cannot see that the defendant is prejudiced by the elimination of this paragraph or deprived of any defense it might make. Pemberton v. Greensboro, 203 N. C., 514, 515, 172 S. E., 196. Second. Ordinarily, injunction will not lie to prevent the perpetration of a crime. The criminal laws which come into action when intention has ripened into an overt act are deemed sufficient. The criminal law, however, deals with crime as crime — as an offense against the sovereignty of the whole State — and does not look to any objective other than the correction or reformation of the criminal or his removal from the zone of his pernicious influence so that society may no longer be molested with his criminal outbreaks, and the deterring effects of his conviction and punishment upon others like minded. It is not intended, nor is it adequate, to protect society or the individuals or groups within it, or persons within a congested territory, from acts which expose them to special danger or which constitute a menace to the safety, health, and welfare of the community, although indeed these acts may incidentally become violations of law. In order to adequately deal with these evils a resort to the police power should mean more than merely setting in *601 motion that highly specialized vehicle of its exercise — the criminal law- — ■ since in many instances this must be found inadequate to sustain the power. The fact that an act from which such injury may come, either to a private citizen or to the public at large, is denounced either in an ordinance or in the law as criminal does not immunize its author from other appropriate remedy. Thus, trespass upon land is an indictable offense, but injunction may be maintained to prevent a continuing trespass. Equity is invoked, not to prevent a crime, but to maintain a right. Third. If in its attempt to enforce its ordinances relating to important subjects of this kind the municipality must be confined to civil actions for collection of the meager penalties prescribed by the ordinances, or to prosecutions under the State criminal law — which, indeed, any citizen might set in motion — where punishment is usually confined to the amount named in the penalty, it must be obvious that such a method will be adequate only when applied to the violation of minor regulations. The subject with which we are dealing — zoning ordinances and similar regulations — has presented a fruitful field of controversy, in which municipalities have experienced great difficulty in enforcement. A number of states have enabling statutes authorizing municipalities to resort to injunction in aid of the enforcement of ordinances of this kind. Lexington v. Governor (Mass.), 3 N. E. (2d), 19. In the 1923 statute (chapter 250, Public Laws of 1923; Michie’s Code of 1935, sections 2‘7'T6 [r], et seq.), conferring on municipalities the powers here sought to be exercised by the plaintiff city, similar permission is given to them to resort to the courts for aid in enforcement of appropriate ordinances and for restraint of prohibited acts. Section 8, Session Law cited; Michie’s Code, section 2176 (y): “Remedies. In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure or land is used in violation of this article or of any ordinance or other regulation made under authority conferred thereby, the proper local authorities of the municipality, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land, or to prevent any illegal act, conduct, business, or use in or about such premises.” Indeed, it has been held that a municipality may resort to injunction for enforcement of its ordinances on subjects of this kind without the necessity of an enabling act. McQuillin on Municipal Corporations (2nd Ed.), section 852, et seq.; ib., section 1911; Lake Charles v. Lake Charles Railway L. & W. Co., 144 La., 217, 80 So., 260-262; Detroit *602 Building Commission v. Kunin, 181 Mich., 604, 148 N. W., 207, 210. See also: 43 C. J., section 524, p. 405. We are aware that the right of the municipality to resort to the State-court for injunction in aid of its ordinances has been questioned in Clinton v. Oil Co., 193 N. C., 432, 436, 137 S. E., 183, and in Elizabeth City v. Aydlett, 198 N. C., 585, 587, 152 S. E., 681. Neither of these-cases, however, was decided on that point, and the statute to which we-have referred was not then called to the attention of the Court. See pertinent observation of Mr. Justice Stacy in his concurring opinion in Elizabeth City v. Aydlett, supra, at bottom of page 588. It may also-be said that the statute was not cited in the argument of the case at bar. There can be no doubt that this statute authorizes the present proceeding; and it may be found to enlarge the scope of the ordinary equity jurisdiction, or to provide a statutory injunction to be applied to acts- and conditions ordinarily considered as being beyond equity interference. This much must be kept in mind: The jurisdiction derives from the-statute and is not made to depend wholly on a state of facts ordinarily warranting the equity jurisdiction in restraint of nuisances. Since it is directed toward the enforcement of specified municipal powers, it may occur in administration also that the particular power to be aided has no relation to nuisances in the ordinary sense, or to the rules of equity jurisdiction regarding their prevention or abatement; or, if the subject relates to a nuisance, it seems clear that the statute, not the common law, must control the court in the exercise of the jurisdiction which it gives, in as far as it speaks. The courts have been inclined to pay great deference to municipal ordinances declaring certain acts to be nuisances, and it has been held that the prohibition by ordinances of certain acts, in the exercise of the power to enact ordinances for the welfare of the people, may be regarded inferentially as such a declaration. McQuillin, Municipal Corporations, sections 957, 958, et seq. Where the statute in that respect is not arbitrary on its face, it should be considered as, prima facie, investing the act or thing with such character. State v. Trenton, 53 N. J. Law, 132, 20 Atl., 1076. The question presented is not whether the act or thing is within the category of things which are obviously nuisances, or which have at one time or another been traditionally so regarded, but a question as to whether or not the act or thing is a nuisance in fact under the conditions found. Shreveport v. Leiderkrantz Society, 130 La., 802, 58 So., 578. With regard to the power of municipalities expressed in zoning and similar acts prohibiting the carrying on of certain businesses or activities within a specified area, that power has not usually been limited in its exercise to instances where the facilities, businesses, or activities pres *603 ■ently constitute a nuisance per se. While there are cases to the contrary, those so holding will usually be found to have turned upon the fact that the evidence is only speculative and uncertain as to whether the thing will ever become a nuisance. For illustration, while a livery stable has been, held by the Supreme Court of the United States and other courts not to be a nuisance per se (Ex Parte Lacey, 108 Cal., 326, 41 Pac., 411; St. Louis v. Russell, 116 Mo., 248, 249, 22 S. W., 470), it has “long been recognized as a subject necessarily within reasonable police regulation.” McQuillin, section 965, and eases cited. So, “an automobile garage is not necessarily a nuisance per se, though it may be so conducted as to become such, hence its location, erection, and conduct is plainly within the police power.” Lb., section 966. There are instances innumerable where the assertion of the police power through a proper ordinance similar to the one under consideration has been upheld as valid, although the thing sought to be prevented or abated as a nuisance is not so per se, but may become so because of the location of the property or the conditions surrounding the business. In the case at bar we are not faced with any uncertainty. The defendant admits that it intends to install tanks holding 15,000 gallons of gasoline, piping it from the spur track of the railroad in one of the most populous centers of the city, in close proximity to hospitals and hotels, and within the fire district, in contravention of the ordinance, and asks the city to wait until it shall have become a nuisance per se, according to traditional classification. Both Clinton v. Oil Co., supra, and Elizabeth City v. Aydlett, supra, and cases of a like kind, have been urged upon us as concluding the rights of plaintiff in the case at bar, since they are construed as holding that a filling station is not a nuisance per se, and, therefore, not a proper subject for a valid city ordinance restricting use of property. It is pointed out that all these filling stations have tanks for the storage of gasoline. The distinction upon which this ordinance bases its classification regards the storage of gasoline in large quantities as constituting the evil, and we cannot say, as the matter has been presented to us in this case, that the classification is arbitrary. Apart from this, the proposition that a municipality may not, by a proper zoning ordinance •equally applicable to all persons and subjects within the restricted area, prohibit the erection and maintenance of filling stations in such particular locality, on the ground that they are not nuisances per se, and that the ordinance constitutes an unconstitutional restriction upon the use of property, is not tenable. At least, this Court has not proceeded on that principle for a long time. S. v. Johnson, 114 N. C., 846, 19 S. E., 599; Ahoskie v. Moye, 200 N. C., 11, 156 S. E., 130; Shuford v. Waynesville, supra. *604 Tbe subject witb which the1 ordinance deals is treated as a nuisance,, but it has been pronounced by the court who heard the case as dangerous to the safety of the public, and we do not think that in reaching it the Court is at this time bound by the doctrine of noninterference until the-condition has established itself as a nuisance per se. On the hearing upon the merits, the character of the facilities sought, to be installed and maintained by the defendant, the method of storing and handling the gasoline, the danger involved, and other matters which might bring it within the legitimate scope of municipal regulation, or exclude it therefrom, may be more definitely determined. At present, we are only concerned with the question whether or not the plaintiff has made a sufficient showing to justify the Court in continuing the restraining order until the hearing on the merits. ¥e think it has. The judgment refusing to dismiss the action and continuing the injunction to the hearing is Affirmed.