# Bizzell Ex Rel. Bizzell v. Board of Aldermen

> Supreme Court of North Carolina · October 20, 1926 · 192 N.C. 348

URL: https://www.frixlaw.com/law-library/cases/9811168

## Case

- **Full name:** ELEANOR BIZZELL, by Her Guardian, LAURA S. BIZZELL, v. BOARD OF ALDERMEN OF THE CITY OF GOLDSBORO Et Al.
- **Court:** Supreme Court of North Carolina
- **Decided:** October 20, 1926
- **Citations:** 192 N.C. 348; 135 S.E. 50; 49 A.L.R. 755; 1926 N.C. LEXIS 293
- **Precedential status:** Published
- **Opinion:** Dissent by Stacy
- **Judges:** Clakkson, Stacy
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9811168

## Opinion text

Stacy, Q. J.,
dissenting: Tbe ordinances in question are assailed upon tbe ground tbat they provide no standard or uniform rule whereby tbe discretion vested in tbe board of aldermen, to issue or to withhold permits for tbe erection and operation of gasoline filling or gasoline storage stations in tbe city of Goldsboro, may be exercised according to some fixed regulation, known and established, and applicable to all alike. Tbe attack was upheld by tbe trial court, and tbis is affirmed, for tbe reason stated, principally on authority of S. v. Tenant, 110 N. C., 609 .
It is established by tbe clear weight of authority tbat an ordinance wbicb lays down no general requirements to be followed and establishes no uniform rule, but merely prohibits tbe erection of any building within tbe corporate limits without a permit, is invalid, since it leaves tbe granting of a permit for any bind of a building to tbe arbitrary discretion of tbe municipal authorities, to be exercised according to their own will and subject to no review, wbicb is regarded as an unwarranted use of tbe police power. 4 R. C. L., 395.
*360 But, to my mind, the position is not sustained by the decision in Tenant’s case, nor by the general rule of law announced therein. There, the court was dealing with an absolute prohibition against all owners of property within the city of Asheville from building or erecting anywhere in the city limits any house or building of any kind, or adding to or altering any house or building already constructed, without first obtaining permission so to do from the board of aldermen. The ordinance was declared invalid as an unwarranted interference with the ownership of property and its ordinary incidents. The board of aider-men was authorized to act, without valid reason had or assigned for its position, which was regarded as an unrestrained discretion, having no reasonable relation to the exercise of the police powers vested in the board for the well ordering of the city. Here the ordinances are much more restricted in their scope and operation. They apply to a single class of buildings, to wit, gasoline filling or gasoline storage stations, the regulation of which comes well within the police power of the State. Stover v. Downey, 215 Mass., 273 . The permits are to be issued or withheld in the sound legal discretion of the board only after a hearing had at some regular meeting, a distinction fully recognized in Yick Wo v. Hopkins, 118 U. S., 356 , and other cases cited by appellant. Brunswick-Balke Co. v. Mecklenburg, 181 N. C., 386 .
Answering a like criticism leveled at an ordinance of the city of Durham, which prohibited the maintenance of a dance hall within the city limits for hire, “without first having obtained the consent of the board of aldermen,” Adams, J., speaking for the Court in S. v. Vanhook, 182 N. C., 831 , said: “The counsel for the defendant contends that the ordinance confers upon the board of aldermen unlimited discretion in granting or refusing license, that it prescribes no uniform rule by which the board shall be guided, and that the aldermen consequently pass upon each application according ‘to their own pleasure.’ But the board is not clothed with arbitrary or unlimited discretion. Whether a license shall be granted upon application is a matter within the limited legal discretion of the board. It is true that in the absence of abuse such discretion cannot be controlled by the courts, but the ordinance is not for that reason void. Brodnax v. Groom, 64 N. C., 244 ; Key v. Board of Education, 170 N. C., 125 . Of course uniformity of operation upon all alike is essential, but this requirement is met by the express language of the ordinance.”
The decisions hold that the validity of the grant of discretion depends largely upon the nature of the business or thing with respect to which it is to be exercised, and as to whether or not its proper regulation and control require a discretion to be vested in one or more public officials *361 for the orderly control of the business, or the use of the article or thing in question. Note, 12 A. L. R., 1435.
A gasoline filling or gasoline storage station may not be a nuisance per se, but it may become such, like a hospital (Lawrence v. Nissen, 173 N. C., 359 ), a livery stable (S. v. Bass, 171 N. C., 781 ), a dance hall (S. v. Vanhook, 182 N. C., 831 ), a sawmill (Barger v. Smith, 156 N. C., 323 ), or a poolroom (Brunswick-Balke Co. v. Mecklenburg, 181 N. C., 386 ), because of its location or by reason of the manner in which it is conducted. Oil and gasoline, invariably used and stored in such stations, are so highly inflammable and explosive .that they may, and do, increase the danger to fire, no matter how carefully the buildings are constructed or how noncombustible their materials. And although lawful and necessary buildings, they are of such character that regulation of the place of their erection and use comes well within settled principles relating to the exercise of the police power. “The State is not bound to wait until contagion is communicated from a hospital established in the heart of a city, it may prohibit the establishment of such hospital there, because it is likely to spread contagion. So the keeping of dangerous explosives and inflammable substances, and the erection of buildings of combustible materials within the limits of a dense population may be prohibited because of the probability or possibility of public injury.” Walker, J., in Durham v. Cotton Mills, 141 N. C., p. 636.
Furthermore, the trend of judicial decision is to the effect that it is not always necessary for a statute, or ordinance, to prescribe a specific rule of action. It is well recognized that many statutes call for the vesting of some discretion in public officials, because of the difficulty or impracticability of laying down a definite and comprehensive rule which will' afford at once an adequate protection for the public as well as for the individual citizen. S. v. Yopp, 97 N. C., 477 .
It is fully recognized that the right of classification is “referred very largely to the legislative discretion, and its exercise may not be interfered with by the courts unless the same is clearly arbitrary.” S. v. Stokes, 181 N. C., 539 ; S. v. Burnett, 179 N. C., 735 .
Speaking to the question in City of Des Moines v. Manhattan Oil Co., 193 Iowa, 1096 , Weaver, J., says: “With the changing conditions necessarily attendant upon the growth and density of population, and the ceaseless changes taking place in method and manner of carrying on the multiplying lines of human industry, the demand becomes greater upon that reserve element of sovereignty which we call the police power, for such reasonable supervision and regulation as the State may impose, to insure observance by the individual citizen of the *362 duty to use bis property and exercise bis rights and privileges witb due regard to tbe personal and property rights and privileges of others (citing authorities). Such duty, even though it involves restriction upon the so-called natural rights of every individual, is the first and most imperative obligation entering into what we call the social compact. Without it there can be no such thing as organized society or civilized government. Naturally, what regulations may reasonably be required or imposed for that pur-pose by the constituted authorities vary with the varying conditions with which our lawmakers have to deal; and, subject only to constitutional limitations, the State, acting by its Legislature, has the right to select the subjects of regulation and to prescribe rules for making such regulations effective. To justify the exercise of such authority, it is not necessary that the subject thereof shall be inherently wrong; nor is the fact that such regulation may operate to restrict the individual citizen in the use of his own property, or even in his liberty, of itself sufficient to render the regulation or restriction void (citing authorities).
“The power to designate the subject of police regulation rests in the State alone; and if a given statute is not clearly repugnant to some constitutional guaranty, the courts are without power to interfere. Such interference, if tolerated at all, must be on the theory that the subject of the regulation is not within the legislative jurisdiction; or, if the subject be one within such jurisdiction, it must appear to the Court that, looking through mere forms, and at the substance of the matter, it can say that the statute, enacted professedly in the interest of the public or general welfare, Las no substantial relation to that object, but is a clear, unmistakable infringement of rights secured by the fundamental law’ (citing authorities). The Legislature, acting within these limits, is the sole judge as to all matters pertaining to the public policy, wisdom, and expediency of the police regulations which it prescribes (S. v. Armour Pkg. Co., 124 Iowa, 323 , 12 Corpus Juris, 932) ; and while the police power is familiarly exercised in regulations to promote the public health and morals, it extends as well to the promotion of ‘public convenience and general prosperity.’ -Chicago, R. & O. R. Co. v. People of Ill., 200 U. S., 561 .”
In S. v. Fleming, 129 Wash., 646 , 225 Pac., 647 , 34 A. L. R., 500, it was held that an ordinance vesting in the city council of Spokane the discretion to grant or deny, after public hearing, permits for gasoline filling stations, outside the fire limits of the city, as the public interest might require, was not invalid as vesting an arbitrary discretion in the council. This position is fully supported, in tendency at least, by the decisions in Fischer v. St. Louis, 194 U. S., 361 , and New York ex rel. *363 Lieberman v. Van DeCarr, 199 U. S., 552 , where the subject is discussed at considerable length.
In the case last cited the Court had under consideration a section of the sanitary code of New York, which provided that “no milk shall be received, held, kept, either for sale or delivered in the city of New York, without a permit in writing from the board of health, and subject to the conditions thereof.” One objection to this, provision was that it put absolute power in the hands of the board of health to grant or withhold permits to milk dealers, and therefore violated the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. In the course of an elaborate opinion sustaining the validity of the ordinance, Mr. Justice Day, speaking for the Court, said:
“In Davis v. Massachusetts, 167 U. S., 43 , an ordinance of the city of Boston providing that no person shall make any public address in or upon the public grounds, except in accordance with a permit from the mayor, was held not in conflict with the Fourteenth Amendment to the Constitution of the United States. In Wilson v. Eureka City, 173 U. S., 32 , an ordinance requiring persons to obtain written permission from the mayor or president of the city council, or in their absence a councillor, before moving a building upon any of the public streets of the city, was sustained as not violative of the Federal Constitution. In the opinion of the Court a number of instances were given in which acts were prohibited except with the consent of an administrative board, and which were sustained as proper exercises of the police power. In Gundling v. Chicago, 177 U. S., 183, an ordinance was sustained permitting the mayor to license persons to deal in cigarettes when he was satisfied that the person applying for the license was of good character and reputation and a suitable person to be intrusted with their- sale. And in the recent case of Jacobson v. Massachusetts, 197 U. S., 11 , this Court sustained a compulsory vaccination law which delegated to the boards of 'health of cities or towns the determination of the necessity of requiring the inhabitants to submit to compulsory vaccination. And in Fischer v. St. Louis, 194 U. S., 361 , an ordinance of the city of St. Louis providing that no dairy or cow stable should thereafter be built or established within the limits of the city, and no such stable not in existence at the time of the passage of the ordinance should.be maintained on any premises, unless permission should have been first obtained from the municipal assembly by ordinance, was sustained as a proper exercise of the police power. After sustaining the right to vest in a board of men acquainted with the local conditions of the business to be carried on, power to grant or withhold permits, this Court said:
*364 “ It bas been beld in some of tbe state courts to be contrary to tbe spirit of American institutions to vest tbis dispensing power in tbe bands of a single individual, Chicago v. Trotter, 136 Ill., 430 ; Matter of Frazee, 63 Mich., 396 ; S. v. Fisk, 9 R. I., 94; Baltimore v. Radecke, 49 Md., 217 ; Sioux Falls v. Kirby, 6 S. Dak., 62, and in others that such authority cannot be delegated to tbe adjoining lot owners. St. Louis v. Russell, 116 Mo., 248 ; Ex parte Sing Lee, 96 Cal., 354 . But tbe authority to delegate that discretion to a board appointed for that purpose is sustained by tbe great weight of authority, Quincy v. Kennard, 151 Mass., 563 ; Commonwealth v. Davis, 162 Mass., 510 , and by this Court tbe delegation of such power, even to a single individual, was sustained in Wilson v. Eureka City, 173 U. S., 32 , and Gundling v. Chicago, 177 U. S., 183.
“These cases leave in no doubt tbe proposition that tbe conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is tbe proper subject of regulation within tbe police power of tbe state is not violative of rights secured by tbe Fourteenth Amendment.”
For tbe reasons stated, I am impelled to dissent from tbe decision of tbe majority. I think tbe ordinances in question are valid.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9811168. Public record. Not legal advice.