The opinion
Clarkson, J.,
dissenting: The bill of indictment and ordinance, under which defendant is indicted, is as follows: “By maintaining and operating a gasoline filling station on the corner of Main Street and State Highway No. 30, the same being within 150 feet of the outside boundary line of the Ahoskie Graded School District No. 11, white, and did unlawfully and wilfully keep -and store gasoline at and in said filling-station in quantities greater than twenty-five gallons at one time, within 150 feet of the boundary lines of said school, all in violation of the following ordinance of said town, to wit: ‘From and after 1 April, 1930, it shall be unlawful for any person, firm or corporation to build, maintain or operate any gasoline filling station, or to keep or store gasoline, kerosene oil, or other like inflammable material in quantities greater than twenty-five gallons at one time, within 150 feet of .the outside boundaries of the property of the Ahoskie Graded School, District No. 11, white. Any one violating this ordinance shall be fined fifty *16 dollars for each offense, and each day that such filling station shall be operated, or such gasoline, kerosene oil, or other inflammable material, shall be kept or stored in excess of twenty-five gallons shall constitute a separate offense. Adopted 10 February, 1930.’ ”
The special verdict, among other things, recited: “That, on 2 April, 1930, the defendant, A. L. Moye, did wilfully maintain and operate in said town a gasoline filling station on the corner of Main Street and State Highway No. 30, the same being within 150 feet of the outside boundary line of the Ahoskie Graded School District, No. 11, white, and did wilfully keep and store gasoline at and in said filling station in quantities greater than twenty-five gallons at one time within 150 feet of the boundary line of said school. That the filling station maintained and operated by the defendant as aforesaid is the one marked ‘Moore’s Filling Station’ on the map, printed on page 94 of Volume 198 of the Supreme Court Reports of North Carolina, in the case entitled Burden v. Town of Ahoskie. (Fourth) That, the said filling station was erected, owned and in operation by the defendant before and at the time of the adoption of the aforesaid town ordinance by the commissioners of the town of Ahoskie.” Upon the special verdict, the court below held the defendant not guilty. I think the court below correct.
The map in Burden v. Ahoskie is referred to in the special verdict. By reference to said map, we find that the school building is in Ahoskie, on the corner of North Carolina Highway and West Main Street, and it faces on the North Carolina Highway. The northwestern corner of the building is 194 feet from Moore’s Filling Station, the one in controversy. From the center of the school building to the North Carolina Highway is 126 feet. The North Carolina Highway is 61 feet wide and the filling station in controversy is across the highway from the school building and at the northeast corner, intersection of West Main Street and North Carolina Highway. The Burden, proposed filling station, is 166.50 feet from the northwestern corner of the school building. West Main Street is 60 feet wide and the Burden station is across West Main Street from the school building. Brewer’s Filling Station is in the same block with the school building, and is not across the street as the station in controversy is, and it is 268 feet from the school building line. According to the map, the above are all the buildings in that large open space.
The question in this action: Can the governing body of a city take the outside boundary line of a school district and pass an ordinance prohibiting a gasoline station 150 feet from same, when the gasoline station is across a 61-foot public highway and 194 feet from the school building, said gasoline station already operating and doing business, ,and limiting the storage of gasoline in excess of 25 gallons ? I think not.
*17 In Standard Oil Co. v. City of Marysville, 279 U. S., at p. 582, 73 Law Ed., p. 856, it is held: “A municipal ordinance requiring all tanks within the city limits used for the storage of petroleum products or other inflammable liquids to be buried at least three feet underground cannot be said to be so arbitrary and capricious as to deprive dealers in such products of their property without due process of law,” etc.
This regulation was held not to be arbitrary and unreasonable as affecting public safety. In the present ease it is no regulation, as in the above case, but prohibition. In the present case Ave have a legitimate business, a going concern, not a nuisance per se, absolutely destroyed when there is another gasoline station, and the other 268 feet from the schoolhouse in the same block, allowed to carry on their business. On the argument it was stated that the gasoline station in controversy was valued at $10,000. This ordinance does not regulate, but destroys, this valuable business. The ordinance has no relation to public safety, health, morals or general welfare, and therefore arbitrary and unreasonable. It takes private property without just compensation.
In Turner v. City of New Bern and Wake Forest v. Medlin, the ordinance covered a large portion of the city and town. The main decision in this case means that the governing body of a city can pass perhaps dozens of ordinances in a large city and less number in a town and destroy every gasoline station within 150 feet of a school property and confiscate perhaps hundreds of thousands of dollars and wipe out vested rights.
In Reynolds v. Brosnan, S. E. Rep., Vol. 154, No. 3 (17 July, 1930), at p. 267, the Supreme Court of Georgia, we find: “ ‘Private property shall not be taken or damaged, for public purposes, without just and adequate compensation being first paid,’ in so far as said act is interpreted by the public officials of the city of Albany to authorize a refusal of a permit sought by an owner of property to construct a filling station which conforms in every way to the building regulations of the city,” is in conflict with the Constitution above set forth and due process clause.
The provision of the Georgia Constitution is the organic law of every civilized country. In Johnston v. Rankin, 70 N. C., 555 , it is said: “Notwithstanding there is no clause in the Constitution of North Carolina which expressly prohibits private property from being taken for public use without compensation; and although the clause to that effect in the Constitution of the United States applies only to acts by the United States, and not to the government of the State, S. v. Newsom, 5 Iredell, 50 ( 27 N. C., 250 ), yet the principle is so grounded in natural equity that it has never been denied to be a part of the law of North Carolina.” S. v. Lyle, 100 N. C., 497 ; Parks v. Commissioners, 186 N. C., at p. 499.
*18 Tbe case of State ex rel. Srigley v. Woodworth (Ohio), 169 N. E., 113 (14 June, 1929) is in point. “In Pritz v. Messer, 112 Ohio St., 628 , 129 N. E., .30, the Supreme Court sustained a zoning ordinance which comprehended the entire city -of Cincinnati, and under the authority of that case if the defendant in this case could justify his action under an ordinance that zoned the entire city of Athens, he would be warranted in his refusal of a permit in this case. In City of Youngstown v. Kahn Bros. Building Co., 112 Ohio St., 654 , 148 N. E., 842 , 43 A. L. R., 662. . . . The fair effect of considering together the two opinions just referred to is that the Supreme Court sustains a comprehensive city-wide ordinance which prohibits the construction of an apartment building within a residential district, and refuses to sustain an ordinance containing a like exclusion where only a part of the city is zoned unless it be shown that the block ordinance prevents the erection of a building that would be a nuisance or a place for carrying on a business that would be a nuisance. The Supreme Court of this State has held that a filling station is not a nuisance per se, Powell v. Craig, 113 Ohio St., 245 , 148 N. E., 601 , and we find nothing in the legislation of the city of Athens nor in the statutes of the State that declares a filling station to be a nuisance per se even within a residential district. It may be seriously questioned, therefore, whether a block ordinance, as distinguished from a comprehensive zoning ordinance, may block off a certain portion of á municipality and prevent filling stations from being erected therein without some sort of a showing that they will be inimical to the public health, safety, or morals of the affected district. In the absence of such showing, any such ordinance would seem to fall under the condemnation of the Youngstown case."
The present decision makes private property a “feather on the water.”