State v. . Summerfield

Avery, J. after stating the facts: Under the general police power, the Legislature may delegate to a municipality the authority to pass ordinances for the preservation of the health or the promotion of the comfort, convenience, good order and general welfare of its citizens, provided always that they are not in conflict with the provisions of the Federal and State Constitutions, framed for the protection of the citizens in the enjoyment of equal rights, privileges and immunities. State v. Moore, 104 N. C., 714; State v. Pendergrass, 106 N. C., 664. Counsel for defendant rested their case here upon the ground that in passing the ordinance under which the indictment was framed, the town of Durham assumed control of or appropriated the land between the sidewalk and the store which belonged to defendant's lessor, Duke, and passed under her dominion by virtue of her lease, without making compensation for it. It must be admitted that the-corporation has offered no testimony tending 1o prove an easemem in the space two feet wide immediately in front of the building. While the street and sidewalk, for the purposes of this action, are considered as either condemned or dedicated to public use, it does not appear that the municipal authorities have exercised any control over the space mentioned except to put paving upon it, and the evidence is that the street was not paved twenty years before the Mayor’s warrant was issued. It is manifest, therefore, that the absolute ownership of the strip of land was still in the defendant’s lessor, and the right to use it, subject only to such reasonable restraint as the Legislature or the town in the *898 exercise of its delegated police powers might impose, passed to the lessee. State v. Purify, 86 N. C., 681; Stewart v. Frink, 94 N. C., 487. So that the only question presented is, whether the municipal authorities had the power to pass the ordinance for- the violation of which the defendant was tried. Under the charter of the town, the commissioners, it seems, had the power to pass any ordinance in the nature of a police regulation that was “consistent with the law of the land,” or, in other words, was not in conflict with the Federal or State Constitutions and was not prohibited by the express provisions of the charter itself. We infer from the statement that the municipal authorities are not expressly prohibited from passing the by-law by the charter, and, therefore, the discussion must be confined to the single question whether the Legislature could empower the commissioners to pass it. The ordinance applies to all classes of persons and is public in its character, and, therefore, if’ it is not calculated to restrain, but only to impose reasonable regulations upon the conduct of trade and for a legitimate purpose, the commissioners had authority to enact it. State v. Moore, supra; State v. Pendergrass, supra. The Courts have been disposed to construe much more liberally grants to municipalities of authority to exercise a limited control over the markets by prescribing reasonable regulations either for the protection of the health or the comfort or convenience of its people, than laws that purport to invest such corporations with more extraordinary powers. 1 Dillon Mun. Corp., § 380. The ordinance prohibits all dealers from exposing, either on the sidewalk or other space in front of a building “ used as a sidewalk, alley, gutter or street of the town, any produce, merchandise, cooked provisions, poultry, fruit, vegetables or other commodity.” The General Assembly having delegated to the corporation general police power, restricted only by any inhibition *899 in the organic law or in the express provisions of the charter itself, we hold that the commissioners were authorized to forbid’by general ordinance the exposure of any of the articles named on the land used as a pass-way in front of the stores, as well as upon the sidewalks, in such manner as to be in the way of persons passing over such open space. It is admitted that the defendant exposed clothing for sale between the building occupied by her and the sidewalk. While the corporation could not claim that the land on which the clothing was placed constituted a part of the street, and while Duke, the owner, would have the unquestionable right at least at any time, before the expiration of twenty years from the laying down of the pavement over it, to extend his building so as to cover it, so long as the lessor and lessee leave it open for people to pass over it to the store the commissioners, in the exercise of their powers, may prohibit them from obstructing it by the merchandise. The fact that produce, mercbandisej meats, etc., exposed in front of stores might, in the opinion of the commissioners, based on reasonable grounds, endanger the health of the citizens of the town or incommode them in passing by a way left open for them by the owner, or might frighten horses attached to vehicles driven along the streets, would be sufficient to warrant the enactment under the general authority to prohibit nuisances, protect health and prevent individuals from so using their own property as to subject others to serious and unnecessary inconvenience or danger. State v. Stovall, 103 N. C., 416; Cool. Const. Lim., star p. 58; Intendant v. Sorrell, 1 Jones, 49. Affirmed.