Eldridge v. . Mangum

Schenck, J. An excerpt from the minutes of the board of commissioners of the city of Ealeigh at a meeting on 14 August, 1939, which is set forth in the complaint, is as follows: “Commissioner Williamson moved that the recommendation of the Zoning Commission be adopted. Commissioner Powell seconded the motion, and upon a vote being taken, Commissioners Williamson and Powell voted in the affirmative and Mayor Andrews in the negative. “It appearing from petitions filed with the Board of Commissioners protesting the adoption of the recommendation of the Zoning Commission, that more than 20 per cent of the adjacent property, and property in front and rear of the proposed re-zoning was represented in said protest, and that pursuant to the general law it would be necessary for a three-fourths vote of the board to adopt such recommendation, the mayor declared that the recommendation .failed of adoption.” It appears from the complaint that the petitioners base their request for a mandamus upon section 21, Chapter YII, of the ordinances of the city of Ealeigh, which reads in part: “b. In case of a protest against an amendment, supplement, change, modification, or repeal signed by the owners of twenty per cent or more, either of the area of the lots included in such proposed change or of those immediately adjacent in the rear thereof, extending one hundred *534 feet therefrom, or of those directly opposite thereto, extending one hundred feet from the street frontage of such opposite lots, such amendment shall become effective by the favorable vote of a majority of all the City Commissioners.” The general law, section 5, chapter 250, Public Laws 1923 (sec. 2776 [v], N. 0. Code of 1935 [Michie]), reads: “Such regulations, restrictions and boundaries may from time to time be amended, supplemented, changed, modified or repealed. In case, however, of a protest against such change signed by the owners of twenty per cent or more, either of the area of the lots included in such proposed change or of those immediately adjacent in the rear thereof extending one hundred feet therefrom, or of those directly opposite thereto extending one hundred feet from the street frontage of such opposite lots, such amendment shall not become effective except by the favorable vote of three-fourths of all the members of the legislative body of such municipality.” There is a conflict between the city ordinance and the general law, the former providing the amendment or change sought “shall become effective by the favorable vote of a majority of all the City Commissioners,” and the latter provides that such amendment or change “shall not become effective except by the favorable vote of three-fourths of all the members of the legislative body of such municipality.” Where there is a conflict between a city ordinance and the general law, the latter will prevail. “The power conferred upon the municipal body is presumed to be in subordination to a public law regulating the samé matter for the entire State, unless a clear intent to the contrary is manifest.” S. v. Langston, 88 N. C., 692. “Municipal ordinances are ordained for local purposes in the exercise of a delegated legislative function, and must harmonize with the general laws of the State. In case of conflict, the ordinance must yield to the State law.” S. v. Freshwater, 183 N. C., 762, and cases there cited. See, also, S. v. Sasseen, 206 N. C., 644. It appears from the complaint that the vote of the board of commissioners, the legislative body of the municipality, upon the question of zoning the property involved as business property was two favorable to the change sought and one in opposition thereto. While this was a favorable vote of a majority of all of the city commissioners, it was not. a favorable vote of three-fourths of all the members of the legislative body of the municipality, and, since the general law must prevail over the city ordinance, we are impelled to hold that the demurrer should have been sustained, and, therefore,- the judgment of the Superior Court is Reversed.